Mark Weinberg Randy Powers Elizabeth Powers v. Whatcom County Nathan W. Brown
Docket: 98-36088
Court: Court of Appeals for the Ninth Circuit; February 27, 2001; Federal Appellate Court
In the case of Weinberg v. Whatcom County, the Ninth Circuit examined whether a developer's procedural due process rights were violated when the county planning agency halted a previously approved land development project without a hearing. The plaintiffs-appellants, Mark and Elizabeth Powers and Randy Powers, owned property within the "Strawberry Shores" development, which had received approval for three short plats and related permits in the early 1990s, subject to conditions including a 50-foot no-entry buffer.
Tensions arose in August 1994 when County Land Use Division Manager Bill Florea instructed Weinberg to stop removing vegetation and placing fill in the buffer area. Florea issued a stop work order on August 25, 1994, due to Weinberg's noncompliance, which was later expanded by Nathan Brown, the County's Planning and Development Services Director, to include restoration of the buffer and a six-year development moratorium.
Weinberg appealed the stop work order to the County hearing examiner, who declined to review it due to lack of jurisdiction. Following this, Brown threatened to vacate Weinberg's short plats unless he complied with conditions regarding fines and restoration, leading to the revocation of his permits and the vacating of the short plats.
Weinberg appealed to the County Council, which upheld the decision to vacate the short plats but reduced the fines. In the spring of 1995, Weinberg sold his interest in the property. Subsequent legal action by the new owners resulted in a partially settled case in 1996, but it was ultimately dismissed without prejudice in 1997 for failure to prosecute. Weinberg remained a nominal party due to the fine associated with him.
On June 30, 1997, Weinberg filed a lawsuit in the Western District of Washington alleging: 1) state negligence, 2) a taking claim under the Washington State Constitution, 3) a federal civil rights claim under 42 U.S.C. § 1983 for a Fifth Amendment taking, and 4) a federal civil rights claim for a lack of due process under the Fourteenth Amendment. The district court established a trial date of November 2, 1998, and mandated that discovery be completed by July 13, 1998, with expert witness disclosures due by May 13, 1998. Weinberg indicated that his damages would be addressed in an expert report but failed to file a witness list or report by the deadline. During his deposition on June 26, 1998, he stated he still did not know his damages and did not update his interrogatory responses.
In June 1998, Weinberg moved for summary judgment based on procedural due process, while the County submitted a cross-motion for summary judgment, citing Weinberg's failure to provide evidence of damages. Weinberg attributed his inability to procure expert services to financial constraints and claimed his expert report would be ready by October 1, 1998. At the September 24, 1998, hearing, he requested an additional week for the expert report but did not formally seek an extension for discovery or the summary judgment motion.
On September 29, 1998, the district court recognized Weinberg's short plats and permits as protected property rights but denied his due process motion for summary judgment, noting no pre-deprivation hearing was necessary and questioning the adequacy of post-deprivation remedies. The court granted the County's cross-motion for summary judgment, dismissing all of Weinberg's claims for lack of proof of damages. Weinberg appealed the dismissal and the denial of his summary judgment motion. The County contended that res judicata barred the suit due to a prior mandamus action in state court; however, the court found this argument unpersuasive, as the state dismissal was without prejudice and did not constitute a decision on the merits.
The district court's refusal to postpone the summary judgment motion for Weinberg to submit an expert report was not an abuse of discretion. Under Federal Rule of Civil Procedure 56(f), a party can request additional time to present essential facts needed to oppose a summary judgment motion. However, this request must be formally made by motion, which Weinberg failed to do. His mere request for an extension in a memorandum was insufficient, and the court noted his lack of a formal motion for additional time for discovery or trial continuance. Consequently, the court properly proceeded with the summary judgment without waiting for Weinberg's untimely expert report.
The court dismissed Weinberg's claims on summary judgment due to his failure to provide evidence of damages, a necessary element for his claims. When discovery is complete, summary judgment is warranted if the party opposing the motion does not present evidence supporting claims for which they bear the burden of proof. Weinberg's lack of competent evidence of damages justified the dismissal of all claims where he needed to establish actual harm from the County's actions. Courts require plaintiffs to provide sufficient evidence to prevent juries from resorting to speculation regarding damages, reinforcing the appropriateness of summary judgment in this case.
Weinberg's state negligence claims must demonstrate duty, breach, causation, and damages to succeed against a municipal government. Since he provided no evidence of damages due to the County's alleged negligence, the district court correctly granted summary judgment in favor of the County. The state and federal takings claims also require proof of damages to establish that a regulatory action deprived the claimant of all economic use of property. Weinberg's lack of evidence regarding damages warranted summary judgment on these claims as well.
In contrast, a procedural due process claim is based on the fairness of the legal system rather than compensation. This type of claim can result in nominal damages even without proof of substantive injury. The right to procedural due process is considered absolute, allowing claims for nominal damages regardless of the merits of the underlying substantive claims. Therefore, the district court erred in granting summary judgment on Weinberg's procedural due process claim because he is entitled to seek nominal damages, even though summary judgment on actual damages was appropriate.
Weinberg contends that his procedural due process rights were violated when the district court denied his motion for summary judgment regarding the August 25, 1994, stop work order, the subsequent development moratorium, and the County's actions to revoke his permits and short plats. Acknowledging that property interests are defined by state law, the court recognizes that Weinberg held valid property interests in his approved permits and short plats, akin to a driver's license as established in Washington law.
In response, the County argues that these interests are invalid if conditions tied to their issuance are violated. However, this assertion is deemed incorrect in this context since Weinberg's permits and plats had already been validly approved. Furthermore, Weinberg argues that he was deprived of his property interests without due process due to the lack of a pre-deprivation hearing prior to the County's actions.
To evaluate the necessity of a pre-deprivation hearing, the court applies the three-factor test from Mathews v. Eldridge, which considers the private interest affected, the risk of erroneous deprivation through the procedures used, and the government's interest, including administrative burdens. The court notes that the Constitution generally mandates some form of hearing before property deprivation. It emphasizes that while the pre-deprivation hearing need not be extensive, it should at least allow for informal consultation with personnel capable of rectifying mistaken decisions.
A prior hearing is not necessary when the potential deprivation of property is not severe, and the procedures in place are reliable enough to reduce the risk of errors. A pre-deprivation hearing is also not required if the deprivation was unforeseeable or impractical to provide beforehand. When property deprivation arises from a state procedure, foreseeability and practicality are generally met, as any erroneous deprivation can occur at a predictable point in the decision-making process.
The County argued that a hearing prior to the issuance of a stop work order was impracticable due to an urgent soil erosion and water contamination situation. However, the district court found that factual questions remained regarding the necessity of a pre-deprivation hearing in this case.
Conversely, there were no unresolved factual issues concerning the vacation of Weinberg's approved plats. The Mathews factors favored a pre-deprivation hearing, as the County's action deprived Weinberg of significant economic value associated with his property, and no alternative procedural safeguards were in place. The Technical Committee vacated his plats without allowing any opportunity for Weinberg to be heard or conducting a committee meeting, increasing the risk of an erroneous determination.
Providing Weinberg with an informal hearing before the deprivation involved minimal administrative costs for the County. The action taken by the Technical Committee was foreseeable and duly authorized, indicating that a prior hearing was practicable. The claimed emergency related to ongoing construction lacked relevance since work had been suspended for over a month prior to the vacation of the plats. Thus, the County violated Weinberg's right to procedural due process by failing to provide a hearing before vacating his plats, warranting the reversal of the district court’s denial of Weinberg's summary judgment motion on this issue.
Questions of fact exist regarding whether the County infringed upon Weinberg's procedural due process rights by not providing a hearing before issuing the stop work order and development moratorium, or alternatively, by not offering a prompt post-deprivation hearing. However, the court does not remand for trial on these issues since Weinberg's claim for procedural due process is singular. The court determined that the County's actions in vacating Weinberg's short plats constituted a violation of his procedural due process rights, entitling him to nominal damages. Due to Weinberg's failure to provide timely evidence of actual damages, nominal damages are the only relief granted. Therefore, remanding for trial on other aspects of his procedural due process claim is unnecessary as he could not receive more than the nominal damages awarded.
The district court's decision to grant summary judgment in favor of Whatcom County regarding Weinberg's state negligence and takings claims is affirmed. Conversely, the court reverses the district court's summary judgment in favor of Whatcom County on Weinberg's procedural due process claim and also reverses the denial of Weinberg's motion for summary judgment on that claim. The overall judgment of the district court is affirmed in part, reversed in part, and remanded for the determination of fees and costs, with each party bearing its own appellate costs. Notably, the substantive due process claims are not addressed separately as they are subsumed by the takings claims. Additionally, while the district court may have dismissed some claims as a discovery sanction, the appellate court opts not to review this aspect based on the County's invitation to consider the summary judgment standard instead. The issue of the County's duty to Weinberg is also not explored. Lastly, it is acknowledged that the County later rescinded the order vacating the short plats.
