Agenda - Planning Commission - 08/02/2012

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Zoning Bulletin June 25, 2012 1 Volume 61 No. 12 DECISION: Reversed, and matter remanded. The United States Court of Appeals, Ninth Circuit, held that Bowlby had a property interest in the permits that were issued to her by the Board and that she was deprived of due process when the Board revoked the permits. The court explained that "[p]rivileges, licenses, certificates, and franchises . . . qualify as property interests for purposes of procedural due process . . . because, once issued, a license or permit `may become essential in the pursuit of a livelihood.' " Here, the Board had issued permits to Bowlby, allowing her to operate a business "in the pursuit of a livelihood." Thus, con- cluded the court, Bowlby had a property interest in the permits. Moreover, because the Board had issued the penults for a specific location, by extension, she had a property interest in operating at the location it identified, said the court. Because Bowlby's permit related to her livelihood and was thus a property interest, it could not be taken away by the state without due process, said the court. This meant that prior to the revocation of her permits, she was due an opportunity to be "heard at a meaningful time and in a meaningful manner." The court explained that in determining whether Bowlby was provided adequate due process prior to the revocation of her permits, it must weigh three distinct factors: (1) the private inter- est that will be affected by the official action; (2) the risk of an er- roneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, includ- ing the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Applying those factors, here, the court found that: (1) the private interest affected by the Board's action was Bowlby's abil- ity to operate her business; (2) the Board's failure to provide any process prior to revoking Bowlby's permits increased the risk of an erroneous deprivation, and meant that any procedural safe- guards would be highly valuable; and (3) while the City may have had a strong interest in properly regulating businesses, providing some sort of predeprivation procedure to. Bowlby would be not have been overly burdensome. The court concluded that while the balancing test "permits varied types of hearings, from informal to more formal evidentiary hearings, . . . [i]n a © 2012 Thomson Reuters 7