Substantive Due Process and Zoning Decisions
| Publication year | 1996 |
| Pages | 71 |
1996, March, Pg. 71. Substantive Due Process and Zoning Decisions
Can a property owner recover damages if a city or county land use decision-making body denies an application to rezone his or her property? In most instances, refusal to rezone property will not support a claim for inverse condemnation because there is usually an allowable use, if not the highest and best use, under the existing zoning. Rezoning decisions are considered to be quasi-judicial decisions in Colorado.(fn1) As such, they are subject to review under Colorado Rules of Civil Procedure ("C.R.C.P.") 106(a)(4) to determine from the administrative record whether the decision was arbitrary, capricious or an abuse of discretion.(fn2)
Damages are not available under Rule 106(a)(4) review. To recover damages where all value of the property has not been "taken," the property owner must bring an action under 42 U.S.C. § 1983 alleging deprivation of his or her right under the Fourteenth Amendment to the U.S. Constitution not to be deprived of property without due process.(fn3) The substantive and procedural requisites for such a claim are not clearly established in Colorado. However, the uncertainty of the law in Colorado is nothing more than a reflection of the state of the law in the federal courts of appeals.
A claim under C.R.C.P. 57 for a declaration that a zoning regulation that was the basis for a zoning decision violates due process must be brought within the thirty-day limit for a Rule 106(a)(4) claim.(fn4) No such time limit exists for a claim under § 1983. In Sundheim v. Board of County Commissioners of Douglas County,(fn5) the court held that because Rule 106(a)(4) does not provide a remedy in damages, a separate action under 42 U.S.C. § 1983 may be maintained regardless of the status of a Rule 106(a)(4) action and outside the thirty-day time limit.(fn6)
Claims for a taking of property based on inverse condemnation are subject to ripeness and finality requirements. The plaintiff must have received a final decision on the allowable development and have exhausted any available administrative remedies.(fn7) Ripeness requirements assure a court that the final and actual impact of a regulatory decision is known. In contrast, a substantive due process claim is not based on the economic impact of a regulatory action. It is based on alleged irrational decision-making by the government with damages for the impact of the decision on the property.
Therefore, as the court recognized in Greenbriar v. City of Alabaster,(fn8) a property owner has been denied substantive due process the moment a governmental decision affecting his or her property has been made in an arbitrary and capricious manner, regardless of whether there are available avenues of relief. Under this analysis, the ripeness rules for inverse condemnation claims do not apply to substantive due process claims. Nevertheless, some federal circuits require substantive due process claims to meet the same ripeness requirements as takings claims.(fn9) This issue was not addressed in Sundheim, and the conflict among the federal circuits has not been presented to the U.S. Supreme Court.
The right to substantive due process protects an individual's life, liberty and property from the arbitrary exercise of governmental powers.(fn10) A plaintiff bringing a substantive due process claim based on an administrative land use...
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