Most unlikely to succeed: substantive due process claims against local governments applying land use restrictions.

• Author: Richards, Joseph D.

The due process provisions found in the Fifth and 14th amendments provide that the government shall not take a person's life, liberty, or property without due process of law. Because the 14th Amendment applies to the states, and state law is relevant in local government land use restrictions, this article will focus primarily on the 14th Amendment due process clause. The clear language of the 14th Amendment means that a state must use sufficiently fair and just legal procedures whenever it is going to take a person's life, liberty, or property. (1) However, while the language of the due process clause literally imposes only procedural obligations upon the government, it is well settled that the due process clause also imposes substantive restraints. (2) The doctrine of substantive due process holds that the due process clause not only protects basic procedural rights, but also protects basic substantive rights. (3)

Examining a constitutional claim for deprivation of a property interest (4) requires two inquires: 1) whether a constitutionally protected property interest is at stake and 2) whether that interest was deprived for an improper motive or by arbitrary and capricious means. (5) To establish a violation of either substantive or procedural due process, a deprivation of a property or liberty interest must initially be shown. (6) The Supreme Court has determined that property interests are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source (i.e., state laws) that secure benefits and that support claims of entitlement to those benefits. (7) "Property" includes both traditional notions of property, such as ownership and possessory interests in personal belongings, realty, chattel, and money, as well as newer statutory entitlements, such as public education, (8) welfare benefits, (9) and continued public employment. (10) There must be a legitimate claim, or "entitlement" to a benefit under state or federal law, (11) to show a deprivation of a property or liberty interest. (12)

Recent years have seen a proliferation of property interest claims by landowners. Many of these claims arise when a local government applies land use restrictions to a landowner's property. The two most common types of land use restrictions utilized by local governments are zoning ordinances and building codes. While all intentional governmental deprivations of property require fair process, what constitutes fair process varies according to the circumstances of the deprivation. (13) Although a protected property interest may give rise to substantive and procedural due process claims, a landowner asserting a substantive due process claim against a local government applying land use restrictions must overcome major hurdles to succeed. This article addresses why in most cases, substantive due process claims against local governments applying land use restrictions are "most unlikely to succeed." (14)

Substantive Due Process

In general, the notion of procedural due process protection dictates that appropriate and just procedures be used whenever the government takes a person's property. Substantive rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government's desire to the contrary. (15) Substantive due process protection is reserved not merely for unwise or erroneous governmental decisions, but for egregious abuses of governmental power shocking to the judicial conscience. (16) Judged by the exceedingly small numbers of claimants who prevail under that standard, it appears that the judicial conscience is not easily shocked when it comes to the application of local land use restrictions.

Executive vs. Legislative Conduct

Landowners opposing land use restrictions as applied by local governments frequently allege that the deprivation of a property interest violates substantive due process, but these claims--typically raised under [section] 1983 of the Civil Rights Act--are rarely successful. Success is elusive because to establish a substantive due process claim, a plaintiff must show that the offending governmental acts were legislative conduct. The 11th Circuit enunciated this principle in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994). After McKinney, [section] 1983 substantive due process claims stemming from nonlegislative deprivations of state-created property interests were no longer cognizable. (17) The principle of this wrongful termination case was later extended to the land-use area. A significant Florida case to adopt this principle was City of Pompano Beach v. Yardarm Restaurant, Inc., 834 So. 2d 861,869-70(Fla. 4th DCA 2002), (18) which applied the principle to a dispute over building permits. In Yardarm, the court stated executive acts such as issuing or revoking building permits do not have substantive due process protection.

Legislative power is generally reserved for a city council or board of county commissioners. Although zoning and building officials may have discretionary authority, that discretion is not the same as the authority to make policy decisions. (19) Therefore, the application of land use restrictions by zoning and building officials is clearly executive conduct.

Another hurdle in challenging the application of a land use restriction is proving the existence of a property interest. Florida law creates no property interest in either the possession of a building permit, (20) or in the application for a building...