IV. Other Constitutional Issues

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

IV. OTHER CONSTITUTIONAL ISSUES

A. Substantive Due Process

Substantive due process limits the exercise of the police power by requiring that a land use regulation promote the health, safety, morals, or general welfare by a rational means. It protects against arbitrary or capricious actions,¹⁶³ which "may not take place no matter what procedural protections accompany them."¹⁶⁴ Courts used substantive due process during the heyday of the Lochner era in the early 20th century to act as a kind of super-legislature to overturn progressive social and economic legislation. Most courts today articulate substantive due process as a theoretical constraint on government action, but, by according great deference to the legislative branch, they do not use it to strike down legislation unless fundamental rights are affected. Nonetheless, while most often unsuccessful, substantive due process continues to be a basis of complaint in many land use cases.

In 1926, the Supreme Court upheld a comprehensive zoning ordinance against a facial substantive due process challenge in Village of Euclid v. Ambler Realty Co.¹⁶⁵ Two years later, in Nectow v. City of Cambridge,¹⁶⁶ the Court found a zoning ordinance invalid in an as-applied case on substantive due process grounds.

The doctrine appeared again in a zoning case in 1977, Moore v. City of East Cleveland.¹⁶⁷ East Cleveland, in limiting residential use to "single families," had a complex definition of family that precluded the plaintiff from living with her son and two grandsons (who were also first cousins). In a divided opinion, the Court, applying strict scrutiny, found the ordinance invalid on due process grounds. Conceding that it was reentering a "treacherous field," the Court could not endorse such an intrusion into family. Moore is a limited revival of substantive due process.

Dating from its inception in Pennsylvania Coal v. Mahon,¹⁶⁸ the doctrine of regulatory takings has been confused with substantive due process. The statement in the 1980 case of Agins v. City of Tiburon¹⁶⁹ that an ordinance that did not substantially advance a legitimate state interest was a taking exacerbated the confusion. Under Agins, parties sought injunctive relief from allegedly arbitrary legislation as a taking. When the Ninth Circuit invalidated a rent control ordinance as a "taking" because it disagreed with the state legislature that the rent control ordinance would achieve its goal,¹⁷⁰ the Court finally stepped in. In Lingle v. Chevron USA Inc.,¹⁷¹ objecting to the Ninth Circuit's use of heightened scrutiny to second-guess a state legislature, the Court candidly admitted its error and said the Agins "substantially advances" test did not belong in Fifth Amendment takings jurisprudence. A challenge to legislation on the grounds that it does not substantially advance a legitimate state interest belongs in the Fourteenth Amendment where, unless it involves a fundamental right (Moore's strict scrutiny), it will be reviewed under the deferential rational-basis test.¹⁷²

Courts express the degree of deference variously, requiring that a law must "shock the conscience"¹⁷³ or be "egregiously unacceptable"¹⁷⁴ or "truly horrendous."¹⁷⁵ Whether one of these verbal formulations is stricter or more lenient than the others is anyone's guess. They do, however, highlight that the burden is great and that it is subjective. While one might make a substantive due process challenge, it is not wise to have high expectations. Federal courts will, on occasion, find violations of substantive due process, but usually such cases are colored by political, religious, and/or racial dis-crimination.¹⁷⁶ State courts vary, but some are quite active in overseeing land use law through due process clauses in their state constitutions.¹⁷⁷ Courts that do intervene are more likely to find delaying and deceptive conduct by the government as arbitrary than to second-guess the wisdom of zoning land for a particular purpose.

The degree of deference accorded to the government may also depend on whether the challenged action is legislative or administrative. This difference is important since a court may hypothesize a rational basis for a legislative action but insist on actual proof for administrative action.¹⁷⁸ While courts agree that review of economic claims is deferential, some treat all zoning actions, including variances, as legislative for the purposes of reviewing the substance of an action.¹⁷⁹ Other courts divide acts along more traditional lines and confer less deference to administrative acts.¹⁸⁰ Even then, the review is described as "extremely narrow."¹⁸¹

A conflict exists among the courts as to the property interest sufficient to invoke such a claim.¹⁸² While ownership of an interest in land is sufficient for some courts,¹⁸³ most courts require a property owner to establish a right or entitlement in a permit.¹⁸⁴ The latter requirement, though a majority position, is odd,¹⁸⁵ and the showing is difficult to make since an entitlement exists only if there is a strong likelihood or virtual assurance that the permit will be issued. If the regime vests the decisionmaker with discretion, there is no entitlement. Since land use permitting processes generally do confer discretion on the authorities, a developer who seeks, or needs, to establish a property right in a permit loses his case at the outset.¹⁸⁶ If one has no right to a permit, there is no need to determine whether the action denying it was arbitrary. Property rights in permits, however, are sometimes found.¹⁸⁷

As noted,¹⁸⁸ the Williamson County final decision ripeness requirement applies not only to as-applied takings claims but also to substantive due process claims and equal protection claims.

B. Procedural Due Process

In contrast to substantive due process, which looks primarily at why a deprivation occurred, procedural due process asks how the deprivation came to be. Procedural due process rights do not attach to legislation of general applicability.¹⁸⁹ Thus, a critical question is whether to characterize a given land use decision as legislative or quasi-judicial.¹⁹⁰ If a rezoning is deemed legislative, the due process clause does not require that affected persons be given notice or a hearing.¹⁹¹ Procedural due process rights attach to administrative or quasi-judicial decision making. In land use, the decisions of the various zoning boards of adjustments and planning commissions typically are viewed as administrative or quasi-judicial.¹⁹² Review is still "extremely narrow,"¹⁹³ though perhaps not as narrow as is true with legislative actions.

C. Equal Protection

Equal protection complaints are made often in land use disputes since the essence of many controls, particularly Euclidean zoning, is to classify land and people. Historically, such claims, in the absence of a fundamental right or suspect class, have not fared well because the rational basis test used by the Court borders on being a rule of non-review.¹⁹⁴

An example is Village of Belle Terre v. Boraas,¹⁹⁵ in which an ordinance differentiated between related and unrelated persons. It allowed only "families" to live in single-family homes and defined "family" to include any number of related persons but not more than two unrelated adults. The Court was not troubled by the law, since it saw the ordinance as merely regulating social and economic affairs and not implicating any fundamental rights of privacy or intimate association. Several state courts have refused to accept the Belle Terre Court's deferential posture in the context of zoning excluding unrelated persons. Applying greater scrutiny, they have invalidated such ordinances relying on state constitutional provisions of equal protection,¹⁹⁶ substantive due process, and privacy rights.¹⁹⁷

The Supreme Court broke from its usual deferential posture in City of Cleburne v. Cleburne Living Center, Inc.¹⁹⁸ There the Court found a violation of the equal protection clause when a city zoning ordinance excluded group homes for people with intellectual disabilities from a zone where apartment houses, fraternity and sorority houses, hospitals, and nursing homes for the aged were permitted. The Court refused to classify the mentally retarded as a "quasi-suspect" class but nonetheless proceeded to find the ordinance invalid by examining, and refuting, the reasons the city offered for handling housing for those with intellectual disabilities under a special classification. The Court said it was using the rational-basis test, but it was not the "traditional" toothless test of Belle Terre. Justice Kennedy called it "meaningful rational basis review."¹⁹⁹

The Cleburne opinion sparked numerous attempts by developers and others to obtain some form of heightened scrutiny. Most have been unsuccessful. Developers, asserting economic interests, have been unable to convince courts to apply Cleburne-like scrutiny to permit denials.²⁰⁰ A shelter for battered women and a day-care center were also refused such scrutiny,²⁰¹and courts have differed over whether halfway homes for prisoners deserve more exacting scrutiny.²⁰² Cleburne scrutiny has been used to find a substantive due process violation when a palm reader was denied a permit based on the religious objections of neighbors.²⁰³ In short, it is likely that one must be a member of a vulnerable or politically unpopular group, which is subjected to irrational fear or prejudice, in order to avail oneself of this enhanced judicial review.²⁰⁴

When permits have been granted or denied for personal or political reasons, courts sometimes have found equal protection violations.²⁰⁵ Until recently, however, even these cases usually have failed. A break from this tradition came in a terse, per curiam ruling by the Supreme Court in the "class of one" Village of Willowbrook v. Olech case.²⁰⁶ Olech sued the Village of Willowbrook, Illinois, seeking damages for the village's alleged denial of her right to equal protection. The essence of her...