Petition for Writ of Certiorari — Goodspeed v. Whitman County

Supreme Court, U.S.

FILLED

981602 pr 17 1998

OFFIC: OF THE CLERK

No.

UNITED STATES SUPREME COURT

October Term, 1998

BRAD GOODSPEED, Petitioner,

-VS-

WHITMAN COUNTY, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Brad Goodspeed

P.O. Box 2

Pullman, WA 99163

(509) 332-7297

Ly 408

QUESTIONS PRESENTED

I. Whether a State Environmental Policy Act and

permitting process is a protectable property interest when

that Act lacks discretionary factors and a successful

completion of that review provides a reasonable

expectation of an issuance of a permit to operate?

Il. When a provision of a State Administrative code is

silent on due process in a land use decision does it allow

that State, or one of its political subdivisions, the right to

circumvent the constitution and violate a citizens right

to due process of the Fourteenth Amendment?

[Il Weather the District Court can replace a jury in

deciding factual issues relative to the equal protection

claim?

LIST OF PARTIES

The following persons and entities participated in the

case below and are petitioners here:

Brad M. Goodspeed

PacWest Premix Inc.

Respondent Whitman County was the only party in

the court.

il

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............-...:0ss2000+- IV

PETITION FOR WRIT OF CERTIORARI... |

GROUNDS ON WHICH JURISDICTION

a a5 Se cd sa cinaien ps usvaceav series ieners cone |

STATEMENT OF THE CASE........ bis inles Scaneky ssid I

I icc csc Shevaniivvnyhbadcajacvacs shears nes UR 9:

g THE CONSTITUTION GUARANTEES MR.

GOODSPEED’S RIGHT TO DUE PROCESS

IN LAND USE DECISIONS AND HIS

SUBSTANTIVE AND PROCEDURAL DUE

PROCESS CLAIMS SHOULD HAVE

SURVIVED SUMMARY JUDGMENT.....12

[1. THE CONSTITUTION PROTECTS MR.

GOODSPEED’S RIGHT TO REASONABLE,

CONSISTANT, AND FAIR LAND USE

DECISIONS SUCH THAT HIS EQUAL

PROTECTION CLAIM SHOULD HAVE

SURVIVED SUMMARY JUDGMENT.....19

eR MEN ooo ic cs, css ece scsessizvs.ves rea Ts Aeneas. 22

iil

TABLE OF AUTHORITIES

Table of Cases

Board of Regents v. Roth,

Pi BOR OT ak fy 4 ROS eaimnmieen hg cmmnarnaet ja URR Bt ieee 12

Celotex Corp. V. Catrett,

RTF SPST PI Bia lenvesccarnvxiaxesussvaciaceses pee ned FL oon te 16

Mathews v. Eldridge,

SIG AE 58 es cdo Rea 14

Wedges/Ledges of California v. City of Phoenix,

24 FS SO TF Ge. 194)... hic na caakeinn ibe 32

Statutes

Wash. Kav, Code © 45.250 Ge OG ir oiciccicpsssnnciercectacnchcdsineosinns 3

Regulations and Rules

Wash. Admin. Code § 197-11-340(1)........0.0 eee eeee cece ees 13

Wash. Admin. Code § 197-1 1-340(3 )(a)(iil)............. 4c han oe

Wash. Admin. Code § 197-1 1-360..0...........cccccssecsceesceseeeenes 13

PETITION FOR WRIT OF CERTIORARI

Brad Goodspeed, Petitioner, respectfully requests

that a writ of certiorari issue to review the judgment of

the U.S. Court of Appeals for the Ninth Circuit, No. 97-

35227.

GROUNDS ON WHICH JURISDICTION IS

INVOKED

The original action came before the courts below

under 42 U.S.C. sec. 1983. Therefore, the courts below

had federal question jurisdiction to decide the original

matter under 28 U.S.C. secs. 1331 and 1343(3). This

Court has jurisdiction to consider this Petition under 28

U.S.C. sec. 1254.

STATEMENT OF THE CASE

Brad Goodspeed (““Mr. Goodspeed”) had been op-

erating a concrete mixing company, PacWest Premix.

rh

Initially, his operation had been located in Idaho. But

the lease for his Idaho site was to run out in June of

1992. A new site needed to be found, or the PacWest

Premix operation would be forced to shut down. Mr.

Goodspeed thought he had secured an appropriate site in

Whitman County, Washington, the “Ranninger Site.”

This location was, however, zoned for agricultural use.

In June of 1991, Mr. Goodspeed filed a re-zone

application and environmental checklist with Whitman

County. By letter dated July 21, 1991, Whitman County

Planner Mark Bordsen (“Mr. Bordsen”) informed Mr.

Goodspeed that certain technical difficulties, not at issue

in this appeal, would prevent Whitman County from

making a determination on Mr. Goodspeed’s re-zone

application without changes to Mr. Goodspeed’s pro-

posal. Mr. Goodspeed submitted a second environmental

checklist.

Several months later, on November 21. 1991. a

“Determination of Non-Significance” (“DNS”) was is-

sued by Whitman County. The effect of a DNS under

the Washington State Environmental Policy Act

(“SEPA”), Wash. Rev. Code § 43.21C et seg., was to re-

lieve Mr. Goodspeed of the need to prepare an environ-

mental impact statement. Subsequently, Whitman

County received comments opposing Mr. Goodspeed’s

development and alleging various reasons why the devel-

opment should not be allowed to proceed--all of which

Mr. Goodspeed denies. However, based solely on these

Statements and without a factual determination as to their

validity, Whitman County decided to hear an “appeal”

on February 26, 1992. Nevertheless, the DNS was up-

held by Whitman County on March 2, 1992. But Mr.

Goodspeed’s fortunes turned for the worse only fifteen

day later when, by letter dated March 17, 1992, Mr.

Bordsen wrote Mr. Goodspeed giving him notice that

Whitman County intended to cancel the zoning change

hearing previously set for April 1, 1992. Frustrated by a

process he did not understand and out of time, Mr.

Goodspeed was unable to go forward with moving the

PacWest Premix operation to the Ranniger Site.

Instead, Mr. Goodspeed looked for another site

and found a suitable site, the Garret Site. It had the ad-

vantage of already having the appropriate zoning, “heavy

industrial.” On April 27, 1992, Mr. Goodspeed submit-

ted an environmental checklist to Whitman County. On

April 30, 1992, Whitman County issued a DNS. How-

ever, once again Whitman County received “public

comment” opposing Mr. Goodspeed’s proposed devel-

opment. Regardless, Mr. Bordsen once again upheld the

DNS after appeal on May 20, 1992. Cryptically, Mr.

Bordsen gave Mr. Goodspeed notice that moving the

PacWest facility to this site would be at his (Mr. Good-

speed’s) own risk because it might be overturned on ap-

peal. (Whitman County’s summary judgment pleadings,

Ex. 13 of Aff. of Bordsen at 9.)

As might be expected in the history of Mr. Good-

speed’s zoning application, several letters were received

by Whitman County. One raised issues concerning the

satisfaction of PacWest’s water needs. The other alleged

a

that the proposed site for PacWest was on a 100-year

flood plain.

On June 10, 1992, Whitman County decided,

based allegedly on Flood Insurance Rate Maps, that one-

third to one-half of the Garrett Site was in the 100-year

flood plain. Although the maps that Whitman County

used had been directly incorporated into its zoning code,

it had “apparently” not noticed this problem before. The

next day, June 11, 1992, Bordsen contacted Carol King

and told her the PacWest building permit would be re-

scinded until the “flood plain” issue was resolved.

On June 12, 1992, Mr. Goodspeed discussed the

water needs issue with Mr. Bordsen and informed him

that he had reached an agreement with a neighboring

landowner for use of additional well water that would

allow him to limit use of the well on the Garrett site to

supplying office needs.

On June 16, 1992, Whitman County withdrew the

DNS, citing Wash. Admin. Code § 197-1 1-340(3)(a)(iii)

and alleging that: (1) Mr. Goodspeed had misrepre-

sented to Whitman County that the property was located

in a flood plain; and (2) that Mr. Goodspeed had failed

to disclose that the Garrett site lacked adequate water.

Mr. Goodspeed denies that he either misrepresented to

Whitman County or failed to disclose significant facts on

the environmental checklist.

On June 18, 1992, Mr. Goodspeed submitted a

survey to Whitman County showing that only 7% of the

total Garrett site was within the 100-year flood plain as

compared to the one-third to one-half Whitman C ounty

claimed. Mr. Goodspeed then engaged in a process of

revising the environmental checklist with Whitman

County. Whitman County issued a final environmental

checklist for the Garrett site on July 20, 1992. This re-

sulted in the issuance of a “Mitigated Determination of

Non-Significance” (“MDNS”) by Whitman County on

July 21, 1992. Public notice of the MDNS was issued

on July 23, 1992. Two environmental groups submitted

letters to Whitman County opposing the PacWest devel-

opment which it rejected in Mr. Bordsen’s decision.

Whitman County then issued a “Notice of Decision on

Comments to Mitigated Determination of Non-

Significance” on August 27, 1992.

Both environmental groups appealed on Septem-

ber 11, 1992. On October 5, 1992, Whitman County

held an appeal hearing which was taken by it under ad-

visement by its decision of October 12, 1992. On No-

vember 9, 1992, Whitman C ounty affirmed the MDNS,

and it supported this decision with findings of fact and

conclusions of law on November 16, 1992. However, by

this time, Mr. Ceictapeeg had been forced to remove the

PacWest operation from its Idaho lease site, and the re-

peated delays in obtain permission to build made this

victory a hollow one for Mr. Goodspeed.

Mr. Goodspeed initiated suit pro se against Whit-

man County, and other defendants. in two separately

filed, but otherwise identical actions filed both in Spo-

kane County Superior Court and the United States Dis-

trict Court for the Eastern District of Washington. He

elected ultimately to proceed on the federal action and

dismissed the state action. In his action, he alleged that

his rights to substantive and procedural due process had

been violated under color of law by Whitman County in

that he had first been provide with a DNS (and permis-

sion to enter and build on the site) only to have it taken

from him. He also alleged that Whitman County had

denied him equal protection under the law by discrimi-

nating against him. Finally, he also alleged that Whit-

man County’s actions had amounted to a taking in his

property rights.

On January 30, 1997, United States District Court

for the Eastern District of Washington, the Honorable

Robert H. Whaley, presiding, entered an order granting

Defendant Whitman County's motion for summary

judgment. The district court considered Whitman

11

County's motions for Dismissal or Other Sanctions for

Discovery (Ct. Rec. 48), for Summary Judgment (Ct.

Rec. 67), and for Dismissal Based on Insufficiency of

Service of Process (Ct. Rec. 80), and Brad Goodspeed’ s

responses during oral argument conducted on January

24, 1997.

12

ARGUMENT

yp THE CONSTITUTION GUARANTEES MR.

GOODSPEED’S RIGHT TO DUE PROCESS IN

LAND USE DECISIONS AND HIS

SUBSTANTIVE AND PROCEDURAL DUE

PROCESS CLAIMS SHOULD HAVE

SURVIVED SUMMARY JUDGMENT.

Mr. Goodspeed’s substantive and procedural due

process claims should have survived summary judgment.

Mr. Goodspeed has a protectable property interest that is

an element of such claims. A protectable property inter-

est exists when the plaintiff has a reasonable expectation

of entitlement deriving from existing rules or understand-

ings that stem from an independent source such as state

law. Wedges/Ledges of California v. City of Phoenix,

24 F.3d 56, 62 (9th Cir. 1994) (citing Board of Regents

v. Roth, 408 U.S. 564, 577 (1972)). Because a DNS

dispenses with need to file an environmental impact

statement, its issuance by a county usually indicates that

the zoning proposal will be approved. See Wash. Ad-

min. Code §§ 197-11-340(1) and 197-11-360. Once a

DNS is procured special circumstances, such as estab-

lishing that “[t}he DNS was procured by misrepresenta-

tion or lack of material disclosure”, Wash. Admin. Code

§ 197-11-340(3)(a)(iii), are necessary before the DNS

determination will be reopened and a revised environ-

mental checklist required. The preceding administrative

code section is absolutely silent however on how such a

determination should be made. The district court specu-

lates that such a determination could be made in a

“closed-door review” or by a formal appeal process.

Opinion at 4. However, the district court fails to deter-

mine whether the “closed-door review” which was in

A Ae he RN NR A IRAT

14

fact employed against Mr. Goodspeed comports with ei-

ther substantive or procedural due process, as it must.

“The ultimate balance involves a determination as to

when, under our constitutional system, judicial-type pro-

cedures must be imposed upon administrative action to

assure fairness.” Mathews v. Eldridge, 424 U.S. 319,

348 (1976). The district court interprets the silence of

the administrative code as providing Whitman County

with a “green light” to engage in “closed-door review” to

determine his property rights, but there are two problems

with this analysis that are fatal: (1) it really does not ad-

dress whether Mr. Goodspeed had a protectable property

interest; and (2) assuming, in the light Mr. Goodspeed is

entitled to as the non-moving party, that Mr. Goodspeed

has a protectable right, it fails utterly to apply the law to

that right. In fact, the district court concedes that

“[w]ithdrawal of a DNS may well be a rare occurrence.”

Opinion at 9. This concession places Mr. Goodspeed in

a better factual position than the plaintiff in

Wedges/Ledges, who nevertheless was found to have a

protectable property interest because of the gaming

code’s absence of “any open-ended discretionary fac-

tors.” Wedges/Ledges, 24 F.3d at 62. The administra-

tive code in this case also lacks such “discretionary fac-

tors” since a new environmental checklist shall be pre-

pared only if the DNS “was [in fact] procured by mis-

representation or lack of material disclosure.” Wash.

Admin. Code § 197-11-340(3)(a)(iii). The silence of

this provision on what level of due process Mr. Good-

speed is entitled to does not negate his claims, it estab-

lishes them precisely because Whitman County could

negate his property rights by factual findings against him

to which he has no right to contest. In point of law, the

district court's opinion “begs the question” by glossing

over whether Mr. Goodspeed got the due process the

Constitution guarantees him.

The district court attempts to get around this by

finding on the record before it that Mr. Goodspeed had

engaged in misrepresentation or material non-disclosure.

Opinion at 11. This a factual determination, that the

district court attempts to resolve without a trial, deny Mr.

Goodspeed his right to a jury trial. A plaintiff defending

against a Summary judgment motion need only make a

showing of a prima facie claim to withstand summary

judgment. Celotex Corp. V. Catrett, 477 U.S. 317, 324

ee ae ee ee ee

655. Litrk ih, 2 BN ea a ee

is Bas

17

(1986). Such a showing consists of designating “facts

showing that there is a genuine issue for trial.” Id. Mr.

Goodspeed denies that he either misrepresented or mate-

rially non-disclosed to Whitman County. That places the

factual issue in dispute, and should have resulted in

summary judgment being denied. And on the legal

question, whether Mr. Goodspeed was entitled to more

than a “close-door review,” the district court utterly

failed to apply the appropriate law and determine that

when Mr. Goodspeed’s right to use property is at stake,

something more than an unreviewable secret decision is

necessary.

Moreover, both the water issue and the flood plain

issue are substantially disputed. The district court con-

cedes as much when it admits that, had Mr. Goodspeed

18

been provided with a hearing, Mr. Goodspeed would

have been able to present evidence establishing that the

PacWest plant would not have occupied any of the 7% of

the land that was in the 100-year flood plain. Opinion at

12. Mr Goodspeed responded to the question asking if

the proposal lay within the 100 year flood plain and it

was the proposed construction of the cement silo and as-

sociated air quality permit that triggered the SEPA proc-

ess and the succesfull completion of the SEPA process

becomes the “issuance” of the air quality permit. Had

they wanted to know if the “Property” or “Land” lay

withinin the the 100 year flood plain, one would assume

they would ask the question implementing that language.

And it was never Mr. Goodspeed’s contention that the

well on the Garrett property was going to be the sole

19

source of his water for the PacWest operation, similar

applications have been afforded the oportunity the haul

in the water by truck for batching purposes. The original

application was for a “temporary” batch plant and it was

by only the “assumption” of the planning department

that it was processed as a permanant application. How-

ever, by conducting “closed-door review,” Mr. Good-

speed was denied any reasonable, timely opportunity to

avoid this crucial finding against him--effecting a taking

of Mr. Goodspeed’s otherwise reasonable right to engage

in business and use property.

ll. THE CONSTITUTION PROTECTS MR.

GOODSPEED’S RIGHT TO REASONABLE,

CONSISTANT, AND FAIR LAND USE

DECISIONS SUCH THAT HIS EQUAL

PROTECTION CLAIM SHOULD HAVE

SURVIVED SUMMARY JUDGMENT.

20

The district court improperly dismissed Mr.

Goodspeed’s equal protection claim because it once

again took the place of a jury and decided the factual is-

sues. The district court attacked Mr. Goodspeed’s equal

protection claim by alleging that he had neither direct

nor indirect evidence of discriminatory intent. Opinion

at 12-13. Against this, Mr. Goodspeed presents the cir-

cumstances that each time he was close to approval such

that he could start work, Whitman County changed the

rules and prevented him from doing so. Mr. Goodspeed

also presents his allegation that a County Commissioner

told him he would never get the Ranniger Site re-zoned.

On these disputed facts, summary judgment was improp-

erly granted.

21

Moreover, such activity by the County represents

the very worst of land use planning and regulation. If

land use planning and regulation are to provide business

land users reasonable due process and reasonable use of

County land, the law must restrain the County from en-

gaging in the tactics it engaged in here. The Constitution

demands no less--vaulting property rights to a high and

proper place in a free society.

CONCLUSION

For all the above reasons, the district court's

dismissal of Mr. Goodspeed’s claims on the basis of

summary judgment should be reversed and his matter

remanded for trial.

Respectfully submitted,

DATED: Aone / 1979

v4 oF

Gat ee

VA, J BRAD GOODSPEED

APPENDIX

I. OPINIONS BELOW:

Al TO Al4: District Courts ORDER GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,

I NTER ALIA No. CS-95-229-RHW (entered January 31, 1997 )

A15 TO Al16: Ninth Circuit Court of Appeals MEMORANDUM

AFFIRMING DISTRICT COURTS ORDER, No.97-35227 (entered

September 18, 1998)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

BRAD M. GOODSPEED, )

et al., }

)

Plaintiffs, ) NO. CS-95-229-RHW

)

\ )

) ORDER GRANTING

WHITMAN COUNTY, ) DEFENDANT'S MOTION

) FOR SUMMARY

Defendant ) JUDGMENT,

} INTER ALIA

)

Before the Court are Defendant's Motions for Dismissal or Other

Sanctions for Discovery (Ct. Rec. 48), for Summary Judgment (Ct. Rec

67), and for Dismissal Based on Insufficiency of Service of Process (Ct

Rec. 80). These motions were heard with oral argument on January 24,

1997. Plaintiff appeared and was represented by Chris Johnson.

Defendant was represented by Guy Nelson.

1. DEFENDANT'S MOTION FOR DISMISSAL OR OTHER

SANCTIONS FOR DISCOVERY

Defendant seeks dismissal of this action because, in filing the

original Complaint, Plaintiff did not properly effect service when he

served each member of the Whitman County Board of Commissioners

("the Board”) at a regular meeting. Defendant contends that this was

insufficient because it did not include service on either the county auditor

A]

or the county sheriff, as required by Fed. R. Civ. P. 4(j)(2) and Wash.

Rev. Code 4.28.080(1), 36.28.010. Although Plaintiff does not dispute

the fact that service of the original Complaint was not executed on the

county auditor or sheriff, Defendant's motion must fail. So long as there

has been "substantial compliance with Rule 4 of the Federal Rules of

Civil Procedure, "a general appearance or responsive pleading by a

defendant that fails to dispute personal jurisdiction will waive any defect

in service or personal jurisdiction. Jackson v. Hayakawa, 682 F.2d 1344,

1347 (9th Cir. 1982) (citation omitted); Fed. R.Civ. P. 12(h)(1)

(insufficiency of process waived if it is omitted from a motion under

Rulel2, a responsive pleading, or an amendment thereof under Fed. R.

Civ. P. 15(a)). "An appearance ordinarily is an overt act by which the

party comes into court and submits to the jurisdiction of the court. This is

an affirmative act involving knowledge of the suit and an intention to

appear." Benny v. Pipes, 709 F.2d 489, 492 (1986), as amended, 807

F.2d 1514 (9th Cir. 1987), cert. denied, 484 U.S. 870 (1987),

Although Defendant's Answer, filed on June 20, 1996 (Ct. Rec.

31), and Amended Answer, filed on September 20, 1996 (Ct. Rec. 47),

both preserve this issue, before filing any responsive pleading, Defendant

filed two Notices of Appearance (Ct.Recs. 3 & 7), neither of which

preserves this issue. As such, insufficiency of process was probably

waived prior to service of the Answer. Moreover, prior to filing the

original Answer, Defendant appeared at several status conferences

(August 23, 1995, November 2, 1995, and May 29, 1996), filed status

certificates and supplements thereto (September 18, 1995 and October

30, 1995), initial disclosures (September 25, 1995), contested withdrawal

of Plaintiff's attorney (April 22, 1996), and filed a motion to compel

discovery (May 20, 1996). Further, following the filing of the Answer,

but prior to moving for dismissal for insufficiency of process on

December 2, 1996, Defendant filed and vigorously pursued several

motions regarding pretrial discovery (July 15, 1996,October 11,1996,

and October 26, 1996 (renoting previous motion)), some of which

included requests to dismiss this action.

The Court denies Defendant's motion in light the sufficiency of

Plaintiff's service of the Amended Complaint, as well as Defendant's

A2

NEM Rc) MeN RAE alse A WEE Re aI poe

Beating, Sd as

clear demonstration of an intention to defend this suit, its actual

knowledge of the Plaintiffs’ claims, and its failure to demonstrate

prejudice.

2. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant seeks judgment as a matter of law on Plaintiff's three

claims under 42 U.S.C. 1983 for denial of equal protection of the laws

and denial of property without substantive and procedural due process.

a. Background

i. Washington State Environmental Policy Act

This case involves application of the Washington State

Enviromental Policy Act ("SEPA"), Wash. Rev. Code 43.21C ef seq

The SEPA process begins with submission of an environmental checklist.

which is initially reviewed by the lead agency. Wash. Admin. Code 197-

LI - 100; 197-011-960. The agency may require the applicant to submit

more information, undertake its own study, or consult with other agencies

regarding the environmental impact of the proposal. /d; Wash. Admin.

Code 197-11-335. Based on the environmental checklist and other

information, a threshold determination is made and memorialized as

either a determination of significance, which requires a further

environmental impact statement, or as a determination of non-

significance ("DNS"). Wash. Admin. Code 197-11-310. 197-11-340(1)

A DNS dispenses with the necessity of preparing an environmental

impact statement and may be issued only if the responsible official

determines that there will be "no probable significant adverse

environmental impact" from a proposal. Wash. Admin. Code 197-1 1-

340(1),197-11-360. Until such time as the threshold determination is

made, the applicant may revise or clarify any information in the

environmental checklist. Wash. Admin. Code 197-11-100(2). Thereafter.

regulations provide that the applicant may make revisions only by means

of the commenting procedures outlined in Wash. Admin. Code 197-11-

340 & 197-11-360. In accordance with these provisions, public notice of

A3

a threshold determination must be given by publication in a newspaper of

general circulation. Wash. Admin. Code 197-11-5 10. Pursuant to Wash.

Admin. Code 197-11-340(1), the lead agency could not act upon the

proposal for fifteen days after the issuance of the DNS, during which

time any person or agency could comment. Thereafter,

[t]he responsible official shall reconsider the DNS based

on timely comments and may retain or modify the DNS

or, if the responsible official determines that significant

adverse impacts are likely, withdraw the DNS....

Ba Sie aie =

Wash. Admin. Code 197-11-340(2)(f). Further, Wash. Admin. Code

197-11-340 provides an alternate means for withdrawal of a DNS. It

mandates that the lead agency withdraw a DNS if.

(iii) The DNS was procured by misrepresentation or lack

of material disclosure; if such DNS resulted from the actions

of an applicant, a subsequent environmental checklist on the

proposal shall be prepared directly by the lead agency or its

consultant at the expense of the applicant.

Wash. Admin. Code 197-11-340(3)(a)(ii1) (emphasis added). This

provision does not, however, indicate the procedural mechanism by

means Of which such a decision would be made. Conceivably, such a

decision could be reached by means of a closed-door review conducted in

much the same way as the reconsideration process undertaken by the

responsible official, or such a decision could be reached by means of the

appeals process, in accordance with Whitman County Ordinance

9.04. 080(C). Appeals must be heard at "a regular meeting” of the Board,

the date for which shall be set by the chairman of the Board, within 30

days of the filing of the letter of appeal. Whitman County Ordinance

9.04.080(C) (1979). At least ten days prior to such a meeting, the county

auditor must mail notice thereof to the appellant, at the appellant's last

known address or to the address stated in the letter of appeal.

po

Vida we A ee is

ii. Facts

A4

Plaintiff's claims revolve mainly around the allegedly

unconstitutional delay he suffered in attempting to relocate his concrete

mixing company, PacWest Premix, when its lease ran out in June, 1992

Initially, Plaintiff secured the Ranninger Site, which was zoned only for

agricultural use. In June 1991, Plaintiff filed a re-zone application and an

environmental checklist. By letter dated July 12, 1991, County Planner

Mark Bordsen ("Bordsen") informed Plaintiff that, due to issues not

relevant here, no determination would be made regarding Plaintiff s

property unless Plaintiff changed or clarified his proposal. Accordingly,

Plaintiff submitted a second environmental checklist.

On November 21, 1991, a DNS was issued and published, thus

relieving Plaintiff of the requirement of preparing an environmental

impact statement. During the fifteen day comment period, comments

were received that were treated as appeals and were heard by the Board

on February 26, 1992. Following this, the Board upheld the DNS on

March 2, 1992. Subsequently, by letter dated Ma rch 17,1992. Bordsen

wrote to Goodspeed canceling a zone change hearing set for April |

1992, for reasons not relevant to this opinion. Thereafter, no further

action was taken by either party. Plaintiff explains that he elected not to

pursue building on the Ranninger Site because he was discouraged by the

process and did not believe that he would obtain a zone change based, in

part, on comments made by unidentified persons indicating that one of

the commissioners had so indicated

Plaintiff then sought and found the Garrett Site, which was

already zoned “heavy industrial” and did not need to be re-zoned for

Plaintiff's business. On April 27,1992, Plaintiff submitted an

environmental checklist for this site, and on April 30, 1992 a DNS was

issued. The 15 day comment period ended on May 15, 1992, before

which several comments were received from the public. After considering

these comments, County Planner Bordsen upheld the issuance of the

DNS on May 20, 1992. Plaintiff was so informed by means of a letter

from Bordsen, which also stated:

This completesthe SEPA process for the temporary Pac

West PreMix Inc., Concrete Plant project. However, there

is a fifteen day appeal period allowed by the.County's

AS

SEPA Ordinance. We expect that all parties will have

received this notification and decision by Tuesday, May 26

1992 and have therefore set the end of this appeal period

for June 10, 1992. This decision allows the applicant to

proceed with the permit applications as needed at the

applicant's own risk that the decision could be appealed

and overturned.

Exhibit 13 to Affidavit of Mark Bordsen, p. 9 (emphasis in original).

Prior to expiration of the appeal deadline, several letters were

received, alerting Defendant to, among other things, two issues of

concern. One was from Mr. and Mrs. Wendt, indicating that their

adjacent residence obtained water from a well located on the Garrett Site.

They expressed concerns regarding the adequacy and purity of the water

supply if used by Plaintiff in the manner suggested by the environmental

checklist. Plaintiff"s April 27, 1992 environmental checklist failed to

indicate the source of the water that would be used by the plant.

Specifically, the environmental checklist asks, "Will ground water be

withdrawn, or will water be discharged to ground water? Give general

description, purpose, and approximate quantities if known.” In response,

Plaintiff stated, "Our present usage as indicated by meters is 4,000

gallons per day. May to October.” Exhibit 10 to Affidavit of Marc

Bordsen, Environmental Checklist, p. 3. Plaintiff does not dispute the

fact that this well was intended to provide water for his plant and for the

Wendt's residence. He states, however, that he thought this was not

significant as there was an off-site well he planned to use for production

needs, leaving the shared well to be used for domestic and office needs.

Another letter raised concerns that Plaintiff intended to construct on

a 100 year flood plain despite Plaintiff s statement to the contrary in the

environmental checklist. Specifically, the environmental checklist asked,

"Does the proposal lie within a 100-year floodplain? If so, note location 4

on the site plan," to which Plaintiff responded "No." Exhibit 10, ;

Enviromental Checklist 5, p. 3. 4

According to the Affidavit of Mark Bordsen, on June 10, 1992,

Bordsen asked an employee of the Department of Public Works to

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prepare a drawing, which indicated that one-third to one-half of the site

was located within the flood plain. The boundaries were determined using

the Flood Insurance Rate Maps, which were adopted by and incorporated

into the Whitman County Zoning Ordinance. The following day, on June

11, 1992, Bordsen spoke with Carol King, the contact person listed on

the environmental checklist. Bordsen explained that the building permit

would be rescinded until the flood plain issue was resolved, which could

be done by proving that the location was not within the flood plain,

obtaining a variance, or siting the structure beyond the flood plain. He

also explained that it had come to his attention that the well was subject

to an agreement for water usage by the Wendts, which had not been

disclosed in the Environmental checklist and could harm the neighbor.

On June 12,1992, Bordsen and Goodspeed spoke, Goodspeed telling

Bordsen that he had made an agreement with an adjoining land owner for

use of their well and explaining that the water from the well would be

used only for office purposes. Bordsen explained to Goodspeed that the

flood plain issue would need to be addressed in one of the three ways he

had described to Carol King.

Thereafter, by means of an order issued June 16, 1992, the Board

withdrew the DNS, citing Wash. Admin. Code 197-11 340(3)(a)(iii) and

Stating:

(C) In its Environmental Checklist, Pac-West misrepresented

the fact that the parcel in question was located or partially

located within a flood plain.

(D) In its Environmental Checklist, Pac-west failed to disclose

that the on-site well was shared by an adjacent resident that

the well's capacity was not sufficient to accommodate Pac-

West's potential water quantity use, and/or that there is a high

potential for complete drainage of the on-site well, all of which

either together or singularly are material to an investigation of

the environmental impact of Pac-West's proposal.

Exhibit 19 to Affidavit of Mark Bordsen, In re: Brad Goodspeed, dba

Pac- West Pre-Mix, p. 3.

Following the revocation of the DNS, on June 18, 1992. Plaintiff

submitted a survey indicating that 7% of the total Garrett Site was within

the flood plain, an area smaller than that demonstrated by the flood

insurance rate maps. On July 6, 1992, Bordsen sent Plaintiff a draft

environmental checklist for comment. After a subsequent revision,

Goodspeed accepted issuance of a Mitigated Determination of Non-

Significance ("MDNS"). On July 20, 1992, Bordsen issued a final

environmental checklist for the Garrett Site, and on the following day, he

issued the MDNS.

Notice of the issuance of the MDNS was published on July 23,

1992. Prior to expiration of the comment period, Defendant received a

letter from Friends of the Corridor and Palouse-Clearwater

Environmental Institute. By means of a memorandum, Bordsen rejected

the comments of these groups, and subsequently on August 27, 1992,a

Notice of Decision on Comments to Mitigated Deteri-nination of Non-

significance was published. On September 11, 1992, both groups filed

appeals. A hearing was held within thirty days on October 5, 1992 and

the appeals were taken under advisement by means of a decision issued

on October 12, 1992. The Board concluded that it needed to await

development of additional information by county staff based on receipt

of a letter from the lessor of Plaintiff's Moscow plant site, alleging that

Plaintiff had not properly cleaned the site. It indicated that such

information would likely be available by October 14 or 15, 1992. On

November 9, 1992, the Board issued a decision affirming the MDNS and

on November 16, 1992, it entered findings of fact and conclusions of law

in support of that decision.

b. Substantive and procedural due process claims

Plaintiff's substantive and procedural due process claims both

fail because Plaintiff has not made the threshold showing of a protectable

property interest, which is a prerequisite to bringing such claims.

WedgeslLedges of Cal y. City of Phoenix, 24 F.3d 56 (9th Cir. 1994)

(citing Board ofRegents v. Roth, 408 U.S. 564, 569 (1972)); see also

Zahra v. Town of Southold,-48 F.3d 674 (2d Cir. 1995) (using traditional

entitlement analysis to examine substantive due process claim arising

from revocation of building permit). A protectable property interest is

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present where an individual has a reasonable expectation of entitlement

deriving from existing rules or understandings that stem from an

independent source such as state law. Wedges/Ledges, 24 F.3d at

62(citations omitted).

Plaintiff claims a protectable property interest in the DNS, arising

from his reasonable expectations that (1) a withdrawal of a DNS would

be extremely.rare, (2) an appeal of the DNS for the Garrett Site would

permit him the opportunity to be heard, in accordance with local

ordinances, and (3) there existed a strong likelihood that he would obtain

the DNS.

Withdrawal of a DNS may well be a rare occurrence.

Nevertheless, such a subjective expectancy, without more, creates no

constitutionally protected interest. Perry v. Sinderman, 408 U.S. 593,

601-2 (1972).

Nor is such an interest created by Plaintiffs expectation that this

case would be treated as an appeal. As stated, Wash. Admin. Code 197-

11-340(3)(a) requires the lead agency to withdraw a DNS if it was

procured by misrepresentations or material non-disclosures. As Plaintiff

conceded at oral argument, there is nothing in SEPA or any of the

regulations cited that requires this to be treated as an appeal. Without

such a provision or a demonstration that the County had limited itself by

means of an ordinance or otherwise to considering withdrawal of a DNS

only in the context of an appeal, Plaintiff's argument that he was entitled

to a hearing appears to fail.

Plaintiff appears also to argue that he had a property interest

in the appeal procedure itself. Whether a property interest can arise from

this procedural mechanism, alone, depends upon whether and to what

extent the statute contains mandatory language that restricts the discretion

of the relevant agency to revoke a DNS. Jacobson v. Hanniflin, 627 F.2d

177, 180 (9th Cir. 1980). Here, withdrawal of a DNS became mandatory

if the lead agency found that it had been procured by misrepresentation or

lack of material disclosure. Wash. Admin. Code 197-11-340(3)(a)(i11).

No statute requires that the decision of the lead agency regarding

misrepresentations and non-disclosures be made only by means of an

A9

appeal. As such, no protectable property interest can exist in the actual

appeal process itself.

Plaintiff's final argument also fails. Plaintiff claims that a

property interest in the DNS arose because he was significantly likely to

receive and maintain the DNS. Using the test adopted in Yale Auto Parts,

Inc. v. Johnson, 758 F.2d $4, 59 (2d Cir. 1985) (no property interest

where plaintiffs application might properly have been denied by the

Zoning Board of Appeals),

the.question of whether an applicant has a legitimate claim

of entitlement to the issuance ofa license or certificate should

depend on whether, absent the alleged denial of due process,

there is either a certainty or a very strong likelihood that the

application would have been granted. Otherwise the application

would amount to a mere unilateral expectancy not rising to the

level of a property right guaranteed against deprivation by the

Fourteenth Amendment.

Id. at 59. See also Tyson v. City of Sunnyvale, 920 F. Supp. 1054,

1061 (N.D. Cal. 1996) (applying Ya/e Auto Parts test to landowners’

challenge to municipality's rejection of their re-zoning application).

Two issues were raised as the basis for revoking the DNS: the

well and the flood plain. Although these two issues were ultimately

resolved to the satisfaction of the Board such that it was willing to affirm

a mitigated DNS, the Board appears to have been fully justified in

concluding that there had been misrepresentations or non-disclosures.

First, as regards the well, following expiration of the comment period,

Plaintiff spoke with Bordsen and explained how, in fact, the plant was

going to use water - i.e., by using a neighboring well for the plant's

operations and the shared well for office and building domestic uses. This

does not, however, change the fact that Plaintiff's April 27, 1992

environmental checklist failed to indicate the source of the water that

would be used by the plant. The environmental checklist had asked, "Will

ground water be withdrawn, or will water be discharged to ground water?

Give general description, purpose, and approximate quantities if known.”

In response, Plaintiff stated:

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pier ee eh eT ee es

Our present usage as indicated by meters is 4,000 gallons per

day.May to October.

Exhibit 10 to Affidavit of Marc Bordsen, Environmental Checklist, p. 3.

The Board found that Plaintiff had failed to disclose the source of

the water to be used, but not that he made any misrepresentations in this

regard. A plain reading of Plaintiff's environmental checklist reveals that

this 1s true.

As to the flood plain issue, the Board found Plaintiff had

misrepresented (but not failed to disclose) that part of his site was within

the flood plain. The Environmental checklist had asked, "Does the

proposal lie within a 100-year floodplain? If so, note location on the site

plan.” to which Plaintiff had responded "No." Exhibit 10, Environmental

Checklist 5 5, p. 3. Both the evidence before the Board at that time and

the evidence later presented by Plaintiff indicate that some portion of

Plaintiff s site was in the flood plain, though they differ in their

calculations as to what amount. As such, the Board's conclusion that

Plaintiff had made a misrepresentation in his application is accurate.

Admittedly, had a hearing been held, Plaintiff might have presented his

view that the proposal was not within the flood plain area because the

land therein was not going to actually be used in the plant's operations.

Although Plaintiff was later granted a mitigated DNS, at the time of

submission of his original DNS, he did not have a reasonable expectation

of preventing revocation of the DNS. Accordingly, there was no

protectable property interest therein. Without a protectable property

interest, Plaintiff cannot pursue a substantive or procedural due process

claim under 42 U.S.C. 1983 and summary judgment is granted on these

claims.

c. Equal Protection

The Amended Complaint alleges that Defendant deprived Plaintiff

of his rights under the Equal Protection Clause. Liability for a violation

of Plaintiff s Equal Protection rights would depend on his ability to prove

that (1) he, as compared with others similarly situated, was selectively

All

treated; and (2) that such selective treatment was based on impermissible

considerations such as race, religion, intent to inhibit or punish the

exercise of constitutional rights, or malicious or bad faith intent to injure

him. LeClair vy. Saunders, 627 F.2d 606, 609 (2d Cir. 1980).

Although discriminatory intent may be proved by direct or

indirect evidence, Arlington Heights v. Metropolitan Hous. Dev. Corp.,

429 U.S. 252, 266 (1977): Federal Deposit Ins. Corp. v. Henderson, 940

F.2d 465, 471 (9th Cir. 1991),

Plaintiff's Equal Protection Claim must fail because he has done

neither. The only evidence of any so-called bad faith can be found in the

failure to strictly define and maintain a withdrawal procedure and the

comments Plaintiff alleges were made by unidentified County

Commissioners indicating that he would never get the Ranninger Site re-

zoned. Although he asks the Court to infer malicious intent, there is too

little evidence indicating that Plaintiff s DNS was dealt with in a manner

reflecting bad faith on the part of Whitman County officials to raise a

question of fact to contradict the presumption of honesty and integrity on

the part of decision-makers. See 7yson, 920 F. Supp. at 1061 (citing

Stivers v. Pierce, 71 F.2d 732, 741 (9th Cir. 1995)).

d. Takings

Defendant argues, and Plaintiff concedes, that the Fifth Amendment

takings claim is unripe as Plaintiff has not sought compensation through

the State's procedures before turning to this tribunal for redress.

Williamson County Regional Planning Comm'n v.Hamilton Bank, 473

U.S. 172,194-95 (1985). Accordingly, this claim is dismissed.

Accordingly, IT IS HEREBY ORDERED:

1. Defendant's Motion for Summary Judgment (Ct. Rec. 67) is

GRANTED.

2. Defendant's Motion for Dismissal or Other Sanctions for

very (Ct. Rec.48) is DENIED as moot.

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Disco

We RTT Tn Ce ee ee A eT a Pe eee Te ee

eee

3. Defendant's Motion for Dismissal Based on Insufficiency of

Service of Process (Ct. Rec. 80) is DENIED.

IT lS SO ORDERED. The Clerk is directed to enter this order and

to provide copies to counsel.

DATED this 30 day of January, 1997

S

ROBERT H. WHALEY

United States District Court

Q:\C1LVIL.95\GOODSPEE.SJ

~

Note- Above order filed January 31, 1997 by James Larsen, Clerk

rHIS PAGE LEFT BLANK INTENTIONALLY

\14

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUTI

BRAD M. GOODSPEED. dba

Pacwest Premix Inc.;: PACWES1 No

PREMIX, D.C. No. CV-95-00229-RHW

97-35227

Plaintiffs-Appellants,

\ MEMORANDUM*

WHITMAN COUNTY,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, District Judge, Presiding

Submitted September 14, 1998**

Before: O'SC ANNLAIN, FERNANDEZ and TASHIMA, Circuit Judges

Brad M. Goodspeed appeals pro se the district court's entry of

summary judgment against him in his 42 U.S.C. 1983 lawsuit alleging

3

violations of the Fourteenth Amendment. We have jurisdiction pursuant

028 U.S.C. 1291, and we affirm.

This court reviews de novo the district court's grant of summary

judgment. See Wedges Ledges of California v. City of Phoenix, 24 F.3d

56, 61 (9th Cir. 1994). We agree with the district court: Goodspeed’s |

substanti:* and procedural due process claims fail because he has not

shown a protected property interest under state law, see id. at 62, and his

equal protection claim fails because there is no evidence that Goodspeed

was treated differently from others similarly situated, see Kawaoka v

City of Arroyo Grande, 17 F.3d 1227, 1240 (9th Cir 1994).

AFFIRMED

*This disposition is not appropriate for prblication and may not

be cited to or by the courts of this circuit except as may be provided by

9th Cir. R. 36-3.

**The panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4

The Above Memorandum was filed September 18, 1998 by Cathy A.

Catterson, clerk U.S. Court of Appeals for the Ninth Circuit

Alo