Agenda - Planning Commission - 02/02/2006

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Page 2 -- December 24, 2005 Due Process -- City initiates change in permit status Property owners claim change violates their due process rights Citation: Makdessian v. City of Mountain Fiew, 9th U.S. Circuit Court of Appeals, No. 03-17325 (2005) The 9th U.S. Circuit has jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. CALIFORNIA (11/1/05) -- Sinldewicz owned a piece of residential property, which he leased to the Makdessians. A few months after leasing the property, the Makdessians received a conditional use permit from the city allowing them to run an automobile repair shop on the residential lot. The neighbors were displeased with the permit, so they complained to the city, In response to the numerous complaints, the city sent a letter to the Makdessians advising them to correct all violations of the municipal code and to correct all conditions of their permit. Fueled by continued neighbor com- plaints, the city went a step further and scheduled a permit revocation hearing a few months later. The zoning administrator at the heating imposed ~eater restrictions on the existing permit, and thereby the business. The Makdessians appealed to the city council and continued to operate under the conditions of the in/rial unaltered permit. While the appeal was still pending, Sinldewicz stepped in and advised the city that the Makdessians would be vacat- ing the premises in a couple of months. Further, he requested that the pending appeal to the city council be sent back to the zoning administrator. Although this violated a city ordinance, the city complied with Sinkiewicz's request. A week before the scheduled departure of the Makdessians, the second heating in front of the zoning administrator took place. The Makdessians at- tended the hearing with an attorney, bui did not challenge the alternative con- ditions to the original permit that the zoning administrator then imposed. The Makdessians sued, claiming that the city violated their procedural due process fights by moving the case from the city council to the zoning adminis- trator. The district court found that the city did not deprive the Makdessians of any property right, so no procedural due process violation occurred. The dis- trict court ruled for the city, and the Makdessians appealed. DECISION:Affirmed. The court found that the district court rightly found in favor of the. city. The court explained that for a successful procedural due process violation claim, the Makdessians would have had to establish that the state, while acting "under color of state law," denied the Makdessians of a U.S2 constitutional or federal fight. While the court admitted that the Makdessians did establish that the city acted under color of law in its actions, it did not find that the actions of the city rose to a denial of rights. Until the final hearing, the Makdessians operated their shop under the © 2005 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 132