II. Procedural and Other General Issues in Land Use Claims

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

II. PROCEDURAL AND OTHER GENERAL ISSUES IN LAND USE CLAIMS

A. Availability and Exclusivity of Action

Since the Supreme Court has been chary of implying direct constitutional causes of action, § 1983 is likely the only procedural vehicle available for most constitutionally based land use claims.⁴ One exception is the Fifth Amendment's just compensation clause, which is self-executing.⁵ An action in inverse condemnation also lies to permit the recovery of just compensation without the aid of statutory authorization.⁶ This is not true if the claim is that the government action fails to promote a public use.⁷ Even when compensation is sought for an otherwise valid taking, however, § 1983 will be preferable in most takings cases due to the availability of attorneys' fees.⁸

When suing on a statute, as opposed to the U.S. Constitution, a party must show more than the mere violation of federal law. Section 1983 permits suits based on "rights," not, as the Court has said, on "broader or vaguer 'benefits' or 'interests.'"⁹ Consequently, a plaintiff must show that a statute creates an individually enforceable right. Also, some federal statutes, such as the Fair Housing Act¹⁰ and the Telecommunications Act, create private causes of action, and in some instances, those statutory rights may preclude § 1983 suits.¹¹

As a general proposition, the Court will likely find the existence of a comprehensive remedial scheme in a statute to infer an intent to preclude suits under § 1983. The Supreme Court, however, has rejected the argument that the availability of a private cause of action conclusively establishes congressional intent to preclude suits based on § 1983. Rather, the Court has held that the "ordinary inference that the remedy provided in the statute is exclusive can surely be overcome by textual indication, express or implicit, that the remedy is to complement, rather than supplant, § 1983. "¹² In City of Rancho Palos Verdes v. Abrams,¹³ the plaintiff, having been denied a permit to construct a radio tower on his property, brought suit in federal court seeking an injunction under the Telecommunications Act. Since that act does not include a damage remedy or allow attorneys' fees, the plaintiff also sought damages under § 1983. Finding the Telecommunications Act has its own special features that suggest exclusivity, the Supreme Court held that a § 1983 action did not lie.

In certain instances, § 1983 may be used along with other federal statutory rights of action. The Religious Land Use and Institutionalized Persons Act (RLUIPA)¹⁴ creates a right of action for a person seeking to enforce religious land use rights. RLUIPA statutory claims are often combined with § 1983 claims asserting First Amendment violations.¹⁵ Both statutes authorize attorneys' fees.¹⁶

B. Under Color of Law

Section 1983 applies only to persons "who [acts], under color of any statute, ordinance, regulation, custom, or usage, of any State. . . ." This section discusses that requirement in the land use context. The "color of" requirement of § 1983 means the same thing as state action under the Fourteenth Amendment.¹⁷ Whether the action is taken pursuant to a law or custom is a separate question from whether the action, albeit by a private person, was under color of law. An individual government official's actions are "under color of state law" when the government official acts within the scope of his or her duties.¹⁸ An official's actions are also actionable if taken "while clothed with the authority of state law."¹⁹ As stated by the Supreme Court, "[m]isuse of power, possessed by virtue of state law and made possible because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law."²⁰

Problems arise when private parties act by order or consent of the state. Numerous cases raise the question of lessees of government property, licensees, homeowners' associations, neighborhood groups or other citizens petitioning or pressuring the government to act, permit holders, and government contractors or consultants. To meet the color of law requirement, the private party's action must have been made possible because she "was clothed with the authority of the state"²¹ or, as the courts often say, that the act was "fairly attributable to the state." It is the relationship between the action taken and the government that matters, not the relationship between the private actor and the government.²²

1. Lobbying the Government

Neighbors who lobby against land development approval do not become state actors, and attempts to sue them under § 1983 have failed.²³ Such conduct is protected by the First Amendment.²⁴ In City of Cuyahoga Falls v. Buckeye Community Hope Foundation,²⁵ the Supreme Court held that comments by citizens in the petitioning process do not constitute state action.

2. Lessees

Lessees of state property may, but do not necessarily, act under color of law. Two cases illustrate the dividing line. In Lee v. Katz,²⁶ the Ninth Circuit found that a private organization that leased a city park, a traditional public forum, acted as the state where the city virtually ceded all power to the organization. In contrast, in Lansing v. City of Memphis,²⁷ the Sixth Circuit held that a street festival organizer given nonexclusive power over certain city streets, also a traditional public forum, did not become a state actor because the city retained ultimate control of the streets. The difference between Lee and Lansing is that the lease in the former case authorized the lessee to create rules for public access, while the lease in the latter case required the lessee to comply with all directives of the police department.

3. Mere Permit Holders

More than acquisition of a government permit is necessary to become a state actor. Thus, if private landowners trespassed on another's property while connecting to a town's water supply pursuant to a permit authorizing such connection, an action against the trespassers might lie in tort but will not lie under § 1983.²⁸

4. Consultants

A consultant who drafts an ordinance for a city does not thereby become a state actor.²⁹ Likewise, an architect hired to advise a city on whether development applications meet the city's design standards does not, by giving his opinion, act under color of law.³⁰

5. Homeowners' Associations

The sometimes stringent rules of homeowners' associations have led some commentators to suggest that such associations are quasi-governmental and that they should be subject to constitutional restraints. The courts have generally rejected these claims. In Kalian at Poconos, LLC v. Saw Creek Estates Community Association, Inc.,³¹ the court refused application of the public function analysis as applied to a community association when the association had the authority to maintain the roads and utilities and to collect dues to fund such maintenance. This, the court found, was distinguishable from the leading public function case of Marsh v. Alabama,³² involving the classic company town where a person was "arrested" for distributing religious literature in violation of a company rule. A condominium association was held not to be a state actor in its enforcement of restrictions regarding the flying of the American flag.³³

6. Recipients of Government Funding

Receipt of government funding and compliance with various governmental regulations does not convert a private party into a state actor.³⁴ In Young v. Halle Housing Associates, LP,³⁵ residents sued their landlord, a nonprofit corporation, the landlord's employees, and the state, claiming that the landlord's ban on overnight guests violated various constitutional rights. The state action rationale was that the landlord received substantial state and federal funding and was required by the state to lease a certain percentage of its units to homeless persons and provide certain other services to residents. The court found no state action. The state had not participated in the promulgation or enforcement of the rule, which was entirely the making of the landlord.

C. Official Policy: Statute, Ordinance, Custom, or Usage Section 1983 land use litigation almost always involves the actions of local governmental entities. Municipal corporations and other political subdivisions, and individuals acting for them, are liable if an alleged injury or deprivation is the consequence of official policy or custom. Chapter 4 covers this issue in detail. Note, however, that in land use cases, a municipality may be liable not only through the adoption of a zoning ordinance but also by taking other official action, such as when a city council denies or revokes a development or building permit.³⁶ The action of a building inspector taken pursuant to authority from the board of adjustment has been held to be official policy.³⁷ The powers granted to a planning director and to a planning commission also have been held sufficient to cause their actions in issuing permits to be official policy for § 1983 liability purposes.³⁸ When a mayor vetoed a zoning ordinance in an attempt to bribe a developer, however, it was held not to be official policy of the city.³⁹ The mayor was not the final policymaker in zoning matters, as the city council had the power to override the veto.

D. Exhaustion of Remedies: Land Use Exceptions

Generally, a plaintiff need not exhaust state judicial or administrative remedies before seeking redress under § 1983.⁴⁰ Two significant cautionary points to this rule apply in the land use context, and both stem from the case of Williamson County Regional Planning Commission v. Hamilton Bank.⁴¹ First, for a cause of action to be ripe, the state action must be final, and to achieve finality, a meaningful development application must be made. Second, with respect to takings claims, a claimant must seek compensation from the state, typically by way of a state court inverse condemnation action.

E. Final Decision Ripeness

While exhaustion of...