A memorandum opinion in Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016) disposed of a case in which Plaintiffs complained that Defendant City did not provide them with personal notice in approving a lot boundary line adjustment, contending that Washington’s Land Use Petition Act (LUPA) provided them with a protected property interest in the City’s proceedings in which a minimum lot size of 5000 square feet for single family homes could not be changed without those proceedings. The trial court dismissed the case finding no cognizable property interest under the circumstances. The trial court said that “only those rules and understandings that support legitimate claims of entitlement give rise to protected property interests” require notice and found that LUPA did not create such an interest so as to require notice.
The Ninth Circuit found the dismissal proper and affirmed. Because there was a discretionary decision and no vested right created under state law, the decision appears to be correct from a due process point of view. The due process clause of the Fourteenth Amendment protects “life, liberty and property” interests; thus, a plaintiff must show the existence of such an interest. Because Plaintiffs could not show the existence of such an interest, there was no constitutional claim to pursue.
Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016).
Oregon’s Planning Goal 1, Citizen Involvement, requires citizen involvement “in all phases of the land use planning process.” The Goal requires local governments to provide for public input when land use plans and regulations are adopted and amended. Oregon law also requires, among other things, notice and opportunity to be heard during land use proceedings. Although one of the original land use goals, Goal 1 is rarely used or relied on by LUBA or the courts as a basis to overturn a local government decision; however, efforts to change its scope are constant. Oregon and Washington courts have recently had an opportunity to consider some creative efforts to alter the scope of public participation.
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