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Allan Gerhart v. Lake County Montana; Lake County Commissioners Mike

March 18, 2011


Appeal from the United States District Court for the District of Montana Jeremiah C. Lynch, Magistrate Judge, Presiding D.C. No. 9:09-cv-00008-JCL

The opinion of the court was delivered by: Paez, Circuit Judge:



Argued and Submitted December 10, 2010-Seattle, Washington

Before: Robert R. Beezer, Diarmuid F. O'Scannlain, and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez


Plaintiff-appellant Allan Gerhart is a property owner and resident of Lake County, Montana. In 2007, Gerhart built an approach to Juniper Shores Lane, a county road that borders his property. Around the time Gerhart constructed his approach, he was informed by a County employee that the County requires permits for road approaches. Gerhart filed an approach permit application, which was denied by the County Commissioners. This denial was remarkable because, according to Gerhart's undisputed testimony, at least ten other property owners on his block previously built un-permitted approaches to Juniper Shores Lane, all without consequence. Moreover, the deposition testimony of the County Commissioners indicated that outright denial of an approach permit application was rare, if not unprecedented.

After the Commissioners denied Gerhart's permit application, he brought suit under 42 U.S.C. § 1983, alleging that the County and the individual Commissioners violated his due process and equal protection rights. The district court granted summary judgment to Defendants after concluding that Ger-hart could not establish a constitutional violation.

We affirm the district court's grant of summary judgment to the County. We also affirm the district court's grant of summary judgment to the individual Commissioners on Gerhart's due process claims, but reverse the district court's grant of summary judgment to the individual Commissioners on Gerhart's equal protection claim. As to that claim, we conclude that on the basis of the summary judgment record, a reasonable trier of fact could find that the Commissioners violated Gerhart's equal protection rights and that the Commissioners are not entitled to qualified immunity.


The facts presented in this section are culled from the deposition testimony of Gerhart; the three Lake County Commissioners who denied Gerhart's permit application; Larry Ehle, the Road Superintendent of the County; Kurt Moser, an attor-ney for the County; and Terrance Murphy, a sanitarian for the County.

A. Gerhart's Approach Permit Application

Around 1996, Gerhart purchased lakefront property in the Juniper Shores subdivision in Lake County, Montana. Gerhart's property is bordered by Juniper Shores Lane on the northwest. In late 1999, Gerhart began building a house on his property. Gerhart's "legal access" to the property is a platted community lane that does not actually reach Gerhart's house. To gain access to his building site, Gerhart initially obtained an easement from his neighbors, the Daues, in 1999. Gerhart, however, alleges that this easement eventually became unsuitable because it was often blocked by equipment for the Daues' construction projects. After multiple instances of being unable to use the easement, Gerhart built his own access road and approach*fn1 that stretches from his house to Juniper Shores Lane. Gerhart testified that, as a contractor, he was able to construct the access road around the drainfield*fn2 on his property. It is undisputed that having reliable access to Gerhart's house would increase the property's value by several hundred thousand dollars.

Unrelatedly, at some point around 2005, Gerhart was involved in a "neighborhood feud" with the Gobles, who owned property a few lots away from Gerhart on Juniper Shores Lane. According to Terrance Murphy, a sanitarian for the County, the Gobles (and others) complained to him that Gerhart had covered the drainfield with his access road.

A few days after finishing the access road and approach, Gerhart was contacted by Larry Ehle, the Road Superintendent of the County. Ehle told Gerhart that the County requires a permit for building an approach to a county road, a fact then unknown to Gerhart. Ehle also revealed that one of the Gobles had made the complaint that prompted Ehle to request a permit from Gerhart. Gerhart promptly filled out and returned the permit application. Gerhart also discovered that none of his neighbors in the Juniper Shores subdivision had received permits for their approaches. Gerhart alleges that since 1994 (the year the County began requiring approach permits), at least ten other lots on his block have constructed approaches to Juniper Shores Lane without a permit.

Gerhart testified that a few days after submitting his permit application, he received a phone message from Ehle saying, "I see the approach. It looks good. In fact, it looks better than any other approach on Juniper Shores Lane." Gerhart understood this message to mean that his permit application had been approved. Ehle did not tell Gerhart that the permit also had to be approved by the Commissioners, although the application form included blank spaces for the Commissioners' signatures. Nor did Ehle instruct Gerhart to stop construction on the approach.

Shortly after viewing Gerhart's approach, Ehle signed Gerhart's application and forwarded it to County Commissioners Mike Hutchins, Paddy Trusler, and Chuck Whitson for approval. Ehle's signature indicated his approval of Gerhart's approach.

A few months later, in late 2007 or early 2008, Commissioner Trusler instructed Ehle that Gerhart's permit application was to be put on hold. Ehle testified at his deposition that he was surprised by this instruction, stating, "it raises the eyebrow and you kind of wonder what . . . is going on there . . . . That seemed to be a little out of the usual to me." Commissioners Hutchin and Whitson both testified that they did not remember why Gerhart's permit application was put on hold.*fn3

Only Commissioner Trusler testified about the purported reasons for placing Gerhart's application on hold. Specifically, Commissioner Trusler stated that the Commissioners had concerns about (1) the steepness of Gerhart's approach, and (2) the fact that Gerhart had constructed his approach without first obtaining a permit. Commissioner Trusler also testified that "there was a strong belief that the road that was already there crossed the drainfield." According to Commissioner Trusler, his concerns about Gerhart's drainfield were based on his personal knowledge of the Juniper Shores area and its topography.*fn4 Although Commissioner Trusler testified that he had concerns about Gerhart's drainfield from the beginning, ...

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