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San Juan County Prosecutor

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Michael Durland and Kathleen Fennell of Deer Harbor lost another round in their four-year legal battle against their  neighbors' plans to add a second story to a garage. The couple contended the issuance of the permit violated their property rights.

Durland and Fennell took their case against the issuance to the county Hearing Examiner, Superior Court and the state Court of Appeals and lost at every stage.

While zoning ordinances do confer property rights, the zoning ordinances do not confer a property right on Durland to prevent Heinmiller from building a garage that could impact Durland's view as an adjacent property owner. Consequently, procedural due process protections do not apply.

The couple had contended the county erred in not notifying them of Heinmiller's application before issuing the permit. Permits for residential construction do not require such notice. Conditional Use permits do have a public process including notification of neighbors. The building permit was not a CUP.

The case was dismissed in Superior Court and in a ruling issued September 30, 2013 the state Court of Appeals affirmed that decision.

In the decision Washington Court of Appeals Judge J. Cox stated: - "A prima facie case under 42 U.S.C. § 1983 requires the plaintiff to show that a person, acting under color of state law, deprived the plaintiff of a federal constitutional or state-created property right without due process of law. "Property interests are not created by the constitution but are reasonable expectations of entitlement derived from independent sources such as state law."

Here, property owners Michael Durland, Kathleen Fennell, and Deer Harbor Boatworks (collectively "Durland") fail to demonstrate any constitutionally protected property right either under the San Juan County Code or otherwise.

The is one of two cases Durland and Fennell filed against Heinmiller. In the first case, Durland and Heinmiller both prevailed on different aspects of the case. When the couple filed an appeal of that decision, they lost in the Court of Appeals.

Accordingly, the trial court properly dismissed this action. We affirm.

 

COURT RULING

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