Determining ripeness of substantive due process claims brought by landowners against local governments.

AuthorMendel, David S.

Introduction

Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations(1) may sue the local government entities responsible for applying those regulations under 42 U.S.C. [section] 1983,(2) alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment.(3) A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim(4) - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees.(5) Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clausel(6) and the standard of conduct required of local governments under that clause,(7) the as-applied substantive due process claim can serve as an effective weapon for landowners who seek redress for alleged arbitrary and capricious behavior by local governments.(8) Moreover, like other constitutional claims available to landowners, substantive due process claims potentially increase the litigation costs and exposure to liability(9) of local governments and their individual agents(10) who seek to implement land use regulations.(11)

However, the effectiveness of the substantive due process claim as a check on arbitrary government regulation and the related increase in costs imposed upon local governments by the claim largely depend upon when federal courts find the claim "ripe" for judicial review. The ripeness doctrine, as utilized by courts in the land use context, requires that local governments have one or more opportunities to apply regulations to the properties of landowners before being held liable for arbitrary and capricious behavior in federal court. As a result, a court's approach to determining ripeness has significant practical consequences for local governments and landowners. An underdeveloped ripeness standard - one that allows landowners to quickly bypass local processes to sue in federal court - likely increases the exposure to liability and litigation costs of local governments and individual government agents. Consequently land use regulators will become more timid in applying and enforcing regulations.(12) Hence, an underdeveloped ripeness standard may hinder efforts by local governments to perform regulatory functions that are vital to the health and safety of communities and the protection of the environment.(13)

On the other hand, an overdeveloped ripeness standard may provide incentives to local governments to neglect the concerns of landowners who believe they @re being treated unfairly. Local governments, often vulnerable to political pressures in making land use decisions, may violate the substantive due process rights of landowners, and then rely on lengthy local appeals processes to forestall suit in federal court.(14) Landowners of limited financial means may not be able to endure the lengthy administrative processes and litigation and may simply give up on their development plans. "Somehow," one commentator observes, "a right which is only available to those with the intestinal fortitude and economic staying power to hire counsel and pay them to conduct difficult, protracted litigation loses some of its luster."(15)

Courts disagree over the test for determining ripeness of substantive due process claims brought by landowners against local governments.(16) One approach makes ripeness a nonissue; it holds that "the very existence of an allegedly unlawful zoning action, without more, makes a substantive due process claim ripe for federal adjudication."(17) A second zipproach requires the landowner to obtain a "final decision" by local authorities regarding the landowner's desired use of the land under existing regulations. A final decision under this second approach consists of a rejected initial application by the landowner for the desired change in the use of the property - the initial application" component.(18) A third approach also adopts the requirement of a final decision but holds that the final decision consists of not only a rejected initial application but also a rejected application for a variancell, or other administrative relief - the "variance" component.(20) A fourth approach constructs yet another version of finality, it requires the initial application and variance components and also at least one rejection of a reaplication for a change in the use of the property, where the additional proposed use is less ambitious than the one requested in the initial application - the "reapplication" component.(21) Courts applying the third and fourth approaches have recognized a "futility exception," which excuses the landowner from either the variance or reapplication components if the government has made clear that pursuit of these avenues would be useless.(22)

This Note argues that the ripeness test for substantive due process claims should include a finality requirement that consists of initial application and variance components but not a reapplication component, and a futility exception that extends to the variance component. Part I describes the theoretical justifications for the ripeness doctrine. Part II argues that the ripeness test created by the Supreme Court for regulatory takings cases supports a finality requirement for substantive due process claims thata consists of initial application and variance components. Just as the Supreme Court has held that a local government does not "take" property until it finally decides how the regulations affects the property, lower courts should hold that a government does not "act" arbitrarily and capriciously until all relevant governmental agents determine that existing regulations do not permit the landowner's desired use for the property. Part III argues that broad policies related to teh quality, efficiency, and propriety of judicial decisionmaking also justify this same finality requirement. Part IV overcomes theoretical and practical objections to the finality requirement proposed in this Note, including the objection that the requirement runs afoul of a separate holding by the Supreme Court that plaintiffs need not exhaust all administrative ministrative remedies for constitutional claims under $S 1983. This Note concludes that, even though the finality requirement imposes modest restrictions on litigation in federal court, the requirement helps protect the integrity of local plwming processes and satisfies concerns among courts about their own role in land use disputes.

  1. THE CONSTITUTIONAL AND PRUDENTIAL ASPECTS OF

    RIPENESS

    Ripeness is a justiciability doctrine that courts may employ for either constitutional or prudential reasons to dismiss a variety of constitutional claims.(23) Courts may invoke the ripeness doctrine when a dispute has not yet generated injury significant enough to satisfy the case or controversy requirement of Article III of the United States Constitution.(24) When used to ensure that a complainant has suffered injury, the ripeness doctrine "prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements,"(25) and hence maintains the limited role for federal courts provided vided by the Constitution.(26)

    Even if plaintiffs demonstrate concrete injury sufficient to satisfy the constitutional requirement of a case or controversy, courts may decide that particular lawsuits are not ripe for judicial review because of prudential concerns. These concerns are "prudential," because they are not required by the Constitution: rather, courts invoke them at their own discretion.(27) One prudential concern is the importance of the substantive constitutional right under scrutiny compared to other constitutional rights. A court may honefl and adjustli its exercise of substantive [judicial] review" by applying a more burdensome ripeness requirement to less important statutory or constitutional causes of action.(28) Other prudential concerns include the accuracy(29) and efficiency(30) of judicial decisionmaking as well as proper deference by federal courts to state institutions.(31) In this respect, "ripeness is best understood as a malleable tool of judicial decision making serving a number of interrelated purposes."(32) However, courts must balance these broad prudential concerns about judicial decisionmaking against the hardship to the parties of withholding court consideration."(33) Courts may not consider the institutional benefits of postponing judicial review in isolation from the actual harm that may be suffered by the complainant.(34)

  2. RIPENESS AS A PRUDENTIAL MEANS To DEFINE THE CAUSE

    OF ACTION: WILLIAMSON COUNTY AND MACDONALD

    The United States Supreme Court has not established a ripeness test for as-applied substantive due process claims brought by landowners against local govemments.(35) However, the Court created a ripeness test for regulatory takings claims in Williamson Counly Regional Planning Commission v. Hamilton Bank(36) and MacDonald, Sommer & Frates v. Yolo County.(37) Section II.A demonstrates that the ripeness test set forth in Williamson County and MacDonald constitutes a prudential redefinition of the cause of action for takings claims, motivated in part by the Supreme Court's lower regard for certain Fifth Amendment just compensation rights, as compared to other rights. Section II.B contends that the Court's temperate view toward Fifth Amendment just compensation rights in the land use context gives lower courts reason to incorporate a finality requirement into the ripeness test for substantive due process claims.

    1. Williamson County and MacDonald

      In Williamson County, a Tennessee landowner brought a takings claim(38) against the county planning commission under $S 1983 after the commission refused to approve the development plans of the land-owner's predecessor in interest to the property.(39) The lower courts...

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