Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1988)

MEMORANDUM^* 

Plaintiff purchased an undeveloped building site which was not contiguous to a city street. The city council denied his application for a curb cut because of an unresolved dispute with his neighbor about an easement to cross the neighbor's land in order to have access to the street in question. Instead of clearing the easement difficulty, he sued in federal court pursuant to 42 U.S.C. § 1983 for the unconstitutional taking of his land without due process of law. He appeals the summary judgment for the defendant city council members. We affirm. See Austin v. City and County of Honolulu, --- F.2d ---- (9th Cir. 1988).

The record in this case reveals that the city council members did not wish to authorize a curb cut and the resulting disturbance from street surface, sewer, water, and driveway construction until after the plaintiff had resolved his ongoing dispute with his neighbor. (The plaintiff had also joined the neighbor as a defendant but she was correctly dismissed from the case because her private, state law controversy with the plaintiff was not a federal question.)

The court correctly disposed of the case on ripeness grounds. Denlinger has alleged only that the council denied his application as it was presented before the council. While language in the council record tends to suggest that one or more council members may have intended to vote not to allow the requested curb cut at all, the record falls far short of proving a regulatory taking for which compensation would have to be awarded.

At the time the plaintiff left the council meeting without his requested permit, much remained to be done before he could claim that his property had been taken by the city without due process of law. For all that appears, the plaintiff would have received a majority vote for the requested permit if he had returned to the next city council meeting with evidence that he had resolved his dispute with his neighbor and that the city would not become involved in a private easement dispute.

Moreover, before a landowner can demand damages in federal court for a regulatory taking under Sec. 1983 he must prove at least that the defendants have denied him due process of law. Here, the plaintiff made no showing that he had been denied any procedural right. He had not come back to the council with proof of access to the street; and he had never appealed to the appropriate state agency the anticipatory denial of a permit; if there was such a denial. See Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987). And he had never sought in state court the judicial remedies available when a final governmental action has resulted in a regulatory taking of the type for which damages can be assessed.

Because we agree that this case was not ripe, we need not address the council's claim that they were entitled to qualified immunity.

AFFIRMED.