Looking Behind the Due Process Label on Land Use Decisions

• Publication year: 2003
• Pages: 59
• Citation: Vol. 32 No. 4 Pg. 59

32 Colo.Law. 59 Colorado Lawyer 2003.

2003, April, Pg. 59. Looking Behind the Due Process Label on Land Use Decisions

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59

Vol. 32, No. 4, Pg. 59

The Colorado Lawyer
April 2003
Vol. 32, No. 4 [Page 59]

Specialty Law Columns
Government and Administrative Law News
Looking Behind the Due Process Label on Land Use Decisions
by David Hughes

This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law

Column Editors

Carolynne C. White of the Colorado Municipal League - (303) 831-6411; Brad Bailey, Assistant City Attorney, City of Littleton - (303) 795-3725; Tiffanie Bleau, Denver, an attorney with Light, Harrington & Dawes, P.C. - (303) 298-1601, tbleau@lhdlaw.com

About The Author

This month's article was written by David Hughes, Boulder, an Assistant County Attorney with the Boulder County Attorney's Office - (303) 441-4976, dehca@ co.boulder.co.us.

This article discusses due process claims in the context of local government land use decisions, including the elements of procedural and substantive due process.

In Hillside Community Church v. Olson,1 the City of Golden granted a special use permit to build an addition onto a church without providing the notice and public hearing required under the city's municipal code. The church's neighbors sued the city, arguing that the permit should not have been granted and that they were wrongly denied the opportunity to participate in a special use review hearing.

The Colorado Supreme Court held that the city's failure to follow the procedural requirements of its own code may have contravened state law, but the city's decision was not a federal due process violation, even if the city's failure was deliberate.2 Hillside Community Church demonstrates that an erroneous land use decision cannot be transformed into a federal civil rights violation by using "due process" as a buzzword. Instead, every due process claim must be examined carefully to determine if the basic elements for such a claim have been met.

This article discusses the applicability of due process claims to land use decisions and explains how Hillside Community Church clarified important issues related to procedural due process.

Due Process and
Federal Law

A number of state law claims may be available to landowners aggrieved by a land use decision.3 Nevertheless, challenges to the constitutionality of a decision under 42 U.S.C. § 1983 (the Civil Rights Act) can be more attractive to landowners because of the availability of attorney fees to successful plaintiffs.4 For example, the neighbors in Hillside Community Church brought both a state law mandamus claim and a federal due process claim against the city. Although the neighbors succeeded on their mandamus claim, the Colorado Supreme Court reversed the trial court's award of attorney fees when it found that no due process violation occurred.5 Depending on the facts of the case, constitutional challenges to land use decisions may be made based on a variety of theories, including equal protection,6 takings,7 and due process. Of these legal theories, due process is perhaps the most prevalent.

Procedural Versus
Substantive Due Process Claims

Due process claims generally are classified as "procedural" or "substantive." Procedural due process involves the manner in which government action occurs; it requires notice and an opportunity for a hearing.8 Substantive due process prohibits the government from depriving a citizen of a property interest in a manner that shocks the conscience, regardless of the procedure used to cause the deprivation.9 Although a procedural due process analysis is commonly applied to land use decisions, the applicability of substantive due process in this context is less certain.

The protections of substantive due process generally have been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.10 Furthermore, courts are reluctant to find a substantive due process cause of action where redress might be obtained under a more specific provision of the U.S. Constitution, such as the Just Compensation Clause of the Fifth Amendment.11 Courts faced with substantive due process claims tend to apply general substantive due process standards while laying aside broader applicability issues.12 Thus, land use decisions may face both procedural and substantive due process challenges.

Protected Property
Interests

To state a procedural13 or substantive14 due process claim it is essential for a landowner to establish the deprivation of a protected property interest by the government. For purposes of procedural due process, a landowner has a protected property interest in tangible physical property or in a "legitimate claim of entitlement" to a benefit.15 The exact parameters of the property interest sufficient to trigger substantive due process protections in the land use context have not been defined. Nevertheless, the Tenth Circuit Court of...