Substantive due process claims in the land-use context: the need for a simple and intelligent standard of review.

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Substantive due process claims in the land-use context: the need for a simple and intelligent standard of review.

When a municipal government denies a landowner's permit or zoning application, the landowner does not have a legitimate "takings" claim if the land is still economically viable. In this situation, an aggrieved landowner can bring a federal claim for violation of substantive due process under section 1983 of the Civil Rights Act for denial of her fundamental right to property. The federal circuits approach these claims in a variety of different ways, bug as illustrated by a recent Third Circuit decision, all the circuits are moving toward very strict standards of review that may eventually bar these cases entirely in federal court. Although federal courts' concerns of becoming "zoning boards of appeal" are legitimate, this Comment advocates for a standard of review that not only allows these eases to be heard in federal court, but recognizes the unique land-use context. This standard must balance the due process harm to the landowner against the legitimate government interest furthered by denial of the application.

I. INTRODUCTION II. CLAIMS UNDER SECTION 1983 A. Why Section 1983? B. The General Scope of Section 1983 C. Possible Claims Under Section 1983 1. Violation of the Equal Protection Clause of the Fourteenth Amendment. 2. Violation of Procedural Due Process Rights 3. Violation of Substantive Due Process Rights D. The Unique Land-Use Context E. The Voice of the Supreme Court in the Substantive Due Process Realm 1. Substantive Due Process and Executive Conduct that "Shocks the Conscience" 2. The Supreme Court's Recognition of a Landowner's Right to Substantive Due Process Protection III. THE THIRD CIRCUIT'S DECISION IN UNITED ARTISTS A. The United Artists Decisions and the Adoption of a Strict Standard of Review B. The Dissenting Opinions in United Artists 1. Judge Cowen's Dissent 2. Judge Nygaards Dissent C. Past Third Circuit Precedent in Land-Use Cases Under Section 1983 IV. AN OVERVIEW OF THE STANDARD OF REVIEW IN EACH CIRCUIT A. The Disagreement in General B. The "Irrational" Standard of Review: The First, Seventh and Eighth Circuits 1. The First Circuit 2. The Seventh Circuit 3. The Eighth Circuit C. The Entitlement Rule: The Second and Tenth Circuits 1. The Second Circuit 2. The Tenth Circuit D. The "Arbitrary and Capricious" Standard of Review: The Fourth Circuit E. The "Rational Basis" Standard of Review: The Fifth and Sixth Circuits 1. The Fifth Circuit 2. The Sixth Circuit V. THE IDEAL STANDARD AND RECOGNIZING THE UNIQUE LAND-USE CONTEXT A. A Standard of Review Hierarchy: From Most Strict to Least Strict B. A Potential Route to Agreement: The Need for a Simplified and Intelligent Standard of Review 1. Simplification: Getting Right Down to the Issue 2. Intelligence: Recognizing the Unique Land-Use Context C. A Workable and Familiar Standard of Review with a Twist 1. Back to Basics with Euclid: The "Arbitrary and Capricious" Standard of Review--Was the Action Based on a Legitimate Police Power Goal? 2. The Twist: Requirement to Exhaust State Remedies VI. CONCLUSION I. INTRODUCTION

A movie theater company applies for a permit to build a theater in a small town. A year later, a competitor does the same. Eventually, the first applicant leaves town without having built at all, while the competitor's new theater is thriving. The cause of this discrepancy was, arguably, the first company's refusal to pay a $100,000 per year "impact fee" to the municipality. The discrepancy between the treatment of the first applicant and the competitor raises the serious constitutional question of whether the first applicant was denied substantive due process by the actions of the municipality. Substantive due process refers to the Fourteenth Amendment's prohibition of any government action that deprives "any person of life, liberty, or property, without due process of law." (1) The substantive component of the Due Process Clause of the Fourteenth Amendment "bars certain arbitrary, wrongful government actions 'regardless of the fairness of the procedures used to implement them.'" (2) The situation described above raises a substantive due process question because, although the municipality was working within its procedural boundaries, the outcome seems arbitrary or based on inappropriate facts--here, the "impact fee."

When a municipal government denies a landowner's permit or zoning application, the landowner usually retains some economically viable use of the land--she is only precluded from using the land in the specific way in which she desires to use it. In such a case, there is no legitimate claim of a taking without just compensation because the land is still usable. (3) In these cases, the landowner who is aggrieved by the denial of her request can bring a federal claim of violation of substantive due process under section 1983 of the Civil Rights Act (4) for denial of her fundamental right to prop...

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