Star Northwest Inc. v. City of Kenmore

308 F. App'x 62

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 7, 2009
• Docket: Nos. 06-35801, 06-36029
• Status: Published

Opinion

ORDER

The memorandum filed on May 28, 2008, 280 FedAppx. 654, is amended as follows: On pages 4 through 5, delete Section 2 and replace it with the following paragraph:

2. Kenmore Lanes argues that the City violated its Fourteenth Amendment right to substantive due process by failing to provide a reasonable amortization period for nonconforming uses banned by Ordinance. We disagree. A plaintiff challenging land use regulation under a federal substantive due process theory must demonstrate that the regulation “fails to serve any legitimate governmental objective,” rendering it “arbitrary or irrational.” Lingle v. Chevron U.S.A Inc., 544 U.S. 528, 542, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005); see also Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir.2008) (“[T]he ‘irreducible minimum’ of a substantive due process claim challenging land use action is failure to advance any legitimate government purpose.” (citation omitted)). Kenmore Lanes has not met this “exceedingly high burden” here, and dismissal of this claim was therefore proper. See Shanks, 540 F.3d at 1088.

With the above amendment, the panel has voted to deny the petition for rehearing. The petition for panel rehearing is therefore DENIED. No further petitions for rehearing shall be filed.