Chapter § 17.3 - Claims Under 42 U.S.C. §1983

• Jurisdiction: Washington

§17.3 CLAIMS UNDER 42 U.S.C. § 1983

A plaintiff may recover damages from any person acting under color of state law that deprives the party of "any rights, privileges, or immunities secured by the Constitution and laws," for example, the deprivation or taking of a federally protected property right. 42 U.S.C. §1983; Sintra, Inc. v. City of Seattle (Sintra I), 119 Wn.2d 1, 11, 829 P.2d 765, cert. denied, 506 U.S. 1028 (1992) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420 (1981)). Section 1983 was designed to afford plaintiffs a cause of action for constitutional violations or transgressions on the part of local government bodies and other state officials and is essentially a constitutional tort. Sintra, Inc. v. City of Seattle (Sintra II), 131 Wn.2d 640, 652, 935 P.2d 555 (1997). The statutory provisions provide for injunctive, declaratory, and damage remedies.

Land use disputes, including takings and due process claims, are appropriate subjects of §1983 actions. Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 954 P.2d 250 (1998) (wrongful refusal to process grading permit); Sintra I, 119 Wn.2d 1 (deprivation of substantive due process rights and unconstitutional taking arising out of city's enforcement of low-income housing preservation ordinance); Hayes v. City of Seattle, 131 Wn.2d 706, 934 P.2d 1179, corrected by 943 P.2d 265 (1997) (improper conditions on master use permit); Lutheran Day Care v. Snohomish Cnty., 119 Wn.2d 91, 829 P.2d 746 (1992) (denial of application for conditional use permit); Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992). Mere regulation of land use, however, does not constitute a "taking" or "substantive due process" violation. Presbytery of Seattle v. King Cnty., 114 Wn.2d 320, 787 P.2d 907 (1990).

(1) Elements of constitutional damages claims

In Washington, land use regulations and permitting decisions that drastically curtail a property owner's use of property can cause a constitutional "taking" or denial of due process. Presbytery of Seattle, 114 Wn.2d at 329. The damages claim may arise from either adoption of a regulation or an exercise of police power. Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987). In the context of land use proceedings, constitutional claims have been based on violations of procedural and substantive due process, takings, and equal protection. Robinson, 119 Wn.2d at 58 ("land use regulation infringes on constitutional or statutory rights through violations of the taking clause or of due process.") Section 1983 does not create new substantive rights but is a remedial statute. Id.

To establish a prima facie violation under §1983, a plaintiff must show that the defendant deprived him or her of a constitutionally protected property right. Mission Springs, 134 Wn.2d at 962 (constitutional property right in grading permit); Robinson, 119 Wn.2d at 58 (enforcement of unconstitutional ordinance supported civil rights claim); Manna Funding., 173 Wn. App. at 894-95 (application for rezone is not a property right). The right to use and enjoy land is a property right. Mission Springs, 134 Wn.2d at 962. "Property interests are not created by the constitution but are reasonable expectations of entitlement derived from independent sources such as state law." Id. at 962 n.15 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). A protected property interest includes all benefits to which there is a "legitimate claim of entitlement" to a specific benefit. Durland v. San Juan Cnty., 182 Wn.2d 55, 70, 340 P.3d 191 (2014). Although less than a fee interest, development rights are recognized as protected property rights. West Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782 (1986); Mfd. Hous. Cmtys. of Wash. v. State, 142 Wn.2d 347, 13 P.3d 183 (2000) ("Property in a thing consists not merely in its ownership and possession but in the unrestricted right of use, enjoyment and disposal."). A zoning ordinance may also create a property right. Asche v. Blomquist, 132 Wn. App. 784, 797-98, 133 P.3d 475 (2006). Constitutionally protected property rights may be created either through (1) contract, (2) common law, or (3) statutes and regulations. Durland, 182 Wn.2d at 70.

Consistent with these principles, the courts have recognized that a landowner has a right to develop land under the zoning ordinances in effect at the time of issuance of a permit. Manna Funding, 173 Wn. App. at 895; Weyerhaeuser v. Pierce Cnty., 95 Wn. App. 883, 890, 976 P.2d 1279 (1999); Hale v. Island Cnty., 88 Wn. App. 764, 771, 946 P.2d 1192 (1997). This is illustrated in Mission Springs, 134 Wn.2d at 962 (developer who met ordinance requirements for issuance of a permit had constitutionally cognizable right to grading permit), Cox v. City of Lynnwood, 72 Wn. App. 1, 863 P.2d 578 (1993) (applicant meeting code requirements for boundary line adjustment entitled to Section 1983 damages for city's arbitrary and capricious denial); Lutheran Day Care, 119 Wn.2d at 125 (denial of conditional use permit may give rise to substantive due process claim). The courts have also recognized, however, that a property right may arise from a "vested" interest in a development application. Manna Funding, 173 Wn. App. at 895 (rezone applicant does not have a vested property right); Kelly v. Chelan Cnty., 157 Wn. App. 417, 427-28, 237 P.3d 346 (2010) (development rights to project did not vest under the regulations in effect at time of application for conditional use permit).

Comment: Care should be given when analyzing applicability of the "vested rights" doctrine under newer court decisions limiting the scope of prior common-law vesting decisions. See Potala Village Kirkland, LLC v. City of Kirkland, 183 Wn. App 191, 334 P.3d 1143 (2014) (shoreline substantial development permits); Alliance Inv. Grp. of Ellensburg, LLC v. City of Ellensburg, 189 Wn. App. 763, 358 P.3d 1227 (2015) (short plats).

Property right interests may also give rise to a claim asserted by an adjacent property owner challenging a permit issuance. See, e.g., Durland, 182 Wn.2d at 70 (no right established by ordinance for adjacent property owner); Asche, 132 Wn. App. 784 (constitutionally protected property right recognized).

A city or county is a "person" for purposes of establishing liability under §1983. Lutheran Day Care, 119 Wn.2d at 119. Municipal liability attaches when the local jurisdiction acts through official policy. Mission Springs, 134 Wn.2d at 968. An official policy can be shown in the adoption of an ordinance or in a decision on a land use application. Although individual government officials have limited immunity, local government entities are not entitled to the qualified immunity available to the officials. Robinson, 119 Wn.2d at 64; Lutheran Day Care, 119 Wn.2d at 118-24. Individual immunity for governmental officials, however, is lost when the conduct is not "objectively reasonable when measured against clearly established law." Robinson, 119 Wn.2d at 65; Mission Springs, 134 Wn.2d at 969 (individual liability imposed on city council members).

Comment: Under both 42 U.S.C §1983 and Chapter 64.40 RCW, knowledge of existing law or awareness of the unlawful nature of an action is a factor in claims against either the entity or individuals. If possible, errors or violations of existing law should be identified and brought to the attention of decision makers during the administrative hearing process. Qualified immunity is an objective determination rather than a matter of the subjective intent of the decision maker. Information and argument produced in the hearing process will be significant in the context of judicial review, and practitioners should ensure that the record identifies any potential claim giving rise to a waiver of limited immunity.

The courts have recognized that substantive due process and takings claims are independent actions. Presbytery of Seattle, 114 Wn.2d at 329-32 ("In this state, a land use regulation which too drastically curtails owners' use of their property can cause a constitutional 'taking' or can constitute a denial of substantive due process.") A land use regulation or action may be challenged as both an unconstitutional taking and a due process violation. Washington courts first analyze the takings issue and then proceed to the due process question. Guimont v. Clarke, 121 Wn.2d 586, 594...