Most Unlikely to Succeed: Substantive Due Process Claims Against Local Governments Applying Land Use Restrictions
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 interest4 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 & #x201c;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 §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, §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 permit.21 The Florida Supreme Court has recognized the general rule that a “building permit issued in violation of law or under mistake of fact may be rescinded.”22
In Hynes v. Pasco County, 801 F.2d 1269 (11th Cir. 1986), the plaintiff brought a §1983 action based on the zoning board’s revocation of a permit that was mistakenly issued by Pasco County. The building permit allowed construction in violation of the applicable zoning ordinance. The Hynes court upheld a dismissal of the §1983 claims for failure to state a cause of action. The court found that the plaintiff had attempted to raise the normal operation of a zoning system to a constitutional level.23 A property interest does not exist when a permit was mistakenly issued and equitable estoppel is not available.24 In addition, no property exists in future permits unless the landowner can meet the requirements for the permits.25 Without the permit or the right to future permits, there is no property interest to support a §1983 claim.26
Fifth Amendment Issues
When a government seeks to rescind or deny a permit, a taking claim often follows.27 In Key Haven v. Board of Trustees, 427 So. 2d 153 (Fla. 1982), the court addressed claims related to the denial of an environmental permit. The court stated that when a plaintiff is denied a permit, after exhausting all administrative remedies, the plaintiff has two options: 1) appeal the denial to the appropriate appellate court, or 2) bring a separate circuit court action for a taking.28bringing an inverse condemnation action, however, the plaintiff accepts the permit denial as correct and is merely left with a claim for a taking. Once an option is chosen, the plaintiff cannot then go after the other option.29This principle was affirmed by the Florida Supreme Court in Atlantic International Inv. v. State, 478 So. 2d 805, 807 (Fla. 1985), in which the court stated, “Once a party agrees to the propriety of the action and chooses the circuit court forum, it is estopped from any further denial that the action itself was improper.”30
Other Due Process Considerations
The right not to be subject to arbitrary or capricious action by governmental, legislative, or administrative action is a substantive due process right. However, much to their dismay, landowners and developers are discovering from many federal court decisions that as the degree of discretion that can be exercised by a government decision-making body increases, the less likely it is that they will be deemed to have any property interest to protect, regardless of how arbitrarily that discretion is exercised in a particular case.31 This approach is particularly evident in the Second, Fourth, and Sixth circuits, which require, as a threshold step before even reaching the alleged substantive due process violation, that the plaintiff landowner or developer first prove a legitimate claim of entitlement to a desired land use or approval so as to establish a protected property interest in the benefit sought from the decision-making authority.32 Other circuits, notably the First and Seventh, regard land use disputes as political disputes rarely containing facts sufficient to state a substantive due process claim.33 Only one circuit, the Third, has concluded that ownership of property, in and of itself, is a property interest that deserves substantive due process protection.34 This inconsistency among the federal circuits can be attributed largely to the fact that the U.S. Supreme Court has not given lower federal courts adequate guidance on how to deal with land use cases involving substantive due process claims or arbitrary and capricious action by local governments. As a result, plaintiffs have many hurdles to overcome to assert a substantive due process claim against a local government.
Another hurdle a plaintiff may face is that the official may be absolutely or qualifiedly immune.35 Qualified immunity, mostly applicable to the application of land-use regulations, exists for discretionary acts so long as those acts do not violate clearly established constitutional rights. The actions to enforce zoning ordinances and to deny permits are clearly discretionary functions.36 For an asserted right to be clearly established for purposes of qualified immunity, “the contours of the right must be sufficiently clear that a reasonable official would understand that their action violates that right.”37
When government legislation limits a fundamental right, strict scrutiny will be applied and the governmental action will be upheld only if it is necessary to promote a compelling state interest. In all other cases, the mere rational basis test is applied, and the governmental action will be upheld if it is rationally related to any conceivable legitimate government interest. The ownership or use of property is not considered a fundamental right.38 Therefore, land use restrictions are evaluated under the rational basis test. Because it is difficult to fail the rational basis test, most governmental action examined under this standard will be upheld unless it is arbitrary or capricious. Under the strict scrutiny standard, the governmental action will be upheld only if it is necessary to achieve a compelling state interest. Under the rational basis test standard, however, the governmental action is presumed valid.39 That presents another difficulty for landowners challenging the application of land use restrictions because the challenger has the burden of proof.40 This is a very difficult burden to meet, considering the deference given to local governments under the rational basis standard. Because the ownership or use of property is not considered a fundamental right, its regulation has been liberally tolerated by courts.
Procedural Due Process
The 14th Amendment only protects against deprivations accomplished “without due process of law.”41 Before a landowner brings a suit for denial of procedural due process, all of the available processes must have been pursued.42 The opportunity for a hearing43 is required to satisfy due process requirements.44 Plaintiffs who are granted a hearing, are represented by counsel, and enter into a settlement agreement have been given due process.45 A landowner cannot try to subvert the meaning of the due process clause by claiming not to have had a hearing, if in fact the landowner chose to settle and gave up the opportunity for a hearing. Furthermore, no substantive due process claim is available for rights created solely by state law such as a building permit.46
Conclusion
Under either the Fifth or 14th amendment, landowners taking on local governments are unlikely to succeed. Substantive due process claims against local governments are rarely successful and most fail as a matter of law. When a local government decides to apply a land use restriction, substantive due process claims can safely be voted “most unlikely to succeed.” q
1 Unlike substantive rights, procedural rights are rights that dictate how the government can lawfully go about taking away a person,s property, freedom, or life when the law otherwise gives the government the power to do so. It is well established that local governments may adopt zoning ordinances that regulate the way property may be used. The source of all zoning regulations is state law and local ordinances, not the U.S. Constitution. Sullivan Properties, Inc. v. City of Winter Springs, 899 F. Supp. at 593 (M.D. Fla. 1995). Such regulations do not amount to a taking as long as they substantially advance legitimate state interests and do not extinguish a fundamental attribute of ownership. Agins v. Tiburon, 447 U.S. 255 (1980). Local governments often attempt to place conditions on a landowner’s building permits. Such conditions constitute an uncompensated taking unless 1) the government can show that the condition relates to a legitimate government interest and 2) the adverse impact of the proposed building is roughly proportional to the loss caused to the property owner. Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
2 The Supreme Court has developed a broader interpretation of the due process clause, known as substantive due process.
3 Today’s concept of substantive due process appears to have its roots in the 1857 Supreme Court decision of Dred Scott v. Sandford, 60 U.S. 393. In Dred Scott, the Supreme Court held that a slave taken into free territory could not become free because the slave-owner’s property rights would be jeopardized. So, even though Dred Scott moved to a free state, he was required to remain a slave because the Supreme Court determined that the slave-owner had a protected property interest.
4 A plaintiff’s property interest for §1983 purposes is defined by state law. Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 (11th Cir. 1991); Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Reserve v. Longboat Key, 17 F.3d 1374 (11th Cir. 1994).
5 Baker v. McCollan, 443 U.S. 137, 140 (1979); Mackenzie, 920 F.2d 1554, 1558.
6 The due process clause does not, in and of itself, create property or liberty interests. The purpose of the due process clause is to provide procedural safeguards against the arbitrary deprivation of existing property or liberty interests.
7 Roth, 408 U.S. 564, 577 (1972).
8 Goss v. Lopez, 419 U.S. 565 (1975) (holding that there is a property interest in public education when school attendance is required and a significant suspension requires procedural due process).
9 Goldberg v. Kelly, 397 U.S. 254 (1970).
10 Arnett v. Kennedy, 416 U.S. 134 (1974).
11 These benefits arise from the existence of objective standards of eligibility for public employment, licenses, public assistance, and other government-disposed commodities.
12 Roth, 408 U.S. 564.
13 Reserve, 17 F.3d at 1374. Procedural due process claims are normally evaluated on the basis of the Mathews v. Eldridge formula that weighs the strength of the private interest together with the procedures necessary to protect the interest against the pertinent state interests. 424 U.S. 319 (1976). However, procedural due process claims arising out of random and unauthorized conduct are evaluated under the Parratt/Hudson doctrine.
14 The reader should note the distinction between a local government applying a land use restriction and a local government adopting a land use restriction.
15 There are potentially three different meanings of substantive due process: 1) the incorporation of the various aspects of the Bill of Rights against the states, 2) the creation of un-enumerated fundamental constitutional rights, such as the right of privacy, by implying the right from the liberty aspect of the due process clause, and 3) the requirement that governmental action that deprives individuals of life, liberty, or property be reasonably related to the police power, that is, the health, safety, welfare, or morals of the community.
16 Any substantive due process violation must “shock the conscience.” Sacramento County v. Lewis, 523 U.S. 833, 847 (1998); United Artists v. Warrington, 316 F.3d 392, 394-95 (3d Cir. 2003) (extending the cons–ience shocking standard to land use cases).
17 Reserve, Ltd. v. Town of Longboat Key, 933 F. Supp. 1040, 1043–44 (M.D. Fla. 1966) (Reserve II).
18 Pompano Beach v. Yardarm Restaurant, Inc., 834 So. 2d 861, 869-70 (Fla. 4th D.C.A. 2002), reh’g denied; see also Henniger v. Pinellas County, 7 F. Supp. 2d 1334, 1339 (M.D. Fla. 1998). Executive acts only have procedural due process protection. Yardarm, 834 So. 2d at 869; Scala v. Winter Park, 116 F.3d 1396, 1401 (11th Cir. 1997) (determining that final policy-making authority does not vest in an official whose decisions are subject to administrative review).
19 Whether an official has policy-making authority is a question for the court. Ruben-Postal, 573 So. 2d 298, 301-02.
20 Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir. 1989). There may be a property interest in a permit only if circumstances exist that give rise to equitable estoppel. Reserve, 17 F.3d at 1374. Equitable estoppel is not a cause of action for monetary damages. City of Cape Coral v. Landhal, Brown, and Weed Assoc., 470 So. 2d 25, 27 (Fla. 2d D.C.A. 1985). There is no cause of action for the manner in which a local government exercises its governmental function of issuing or refusing to issue permits and such actions are immune from an action for damages. To invoke the doctrine of equitable estoppel, a property owner must 1) in good faith, 2) rely upon some act or omission of the government, 3) to make a substantial change in position or incur such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right the owner acquired. Hollywood Beach Hotel Company v. City of Hollywood, 329 So. 2d 10, 15-16 (Fla. 1976) (citing Sakolsky v. City of Coral Gables, 151 So. 2d 433 (Fla. 1963)). Furthermore, estoppel cannot be applied against a local government to accomplish an illegal result. Branca v. City of Miramar, 634 So. 2d 604, 607 (Fla. 1994); Godson, 8 So. 2d 497, 498 (Fla. 1942) (holding that a “building permit issued in violation of law or under mistake of fact may be rescinded”).
21 Mackenzie, 920 F.2d 1554, 1558 (citing Boynton Beach v. Carroll, 272 So. 2d 171, 173 (Fla. 4th D.C.A.). The only way to challenge the propriety of a permit denial on constitutional infirmities is on direct review of the administrative agency’s action in the appellate court. Key Haven, 427 So. 2d at 159.
22 Godson v. Surfside, 8 So. 2d at 498; Dade County v. Gayer, 388 So. 2d 1292, 1294 (Fla. 3d D.C.A. 1980) (holding a county cannot be estopped by unauthorized acts of its officers).
23 Hynes, 801 F.2d at 1270.
24 Estoppel is awarded against a government only under rare and exceptional circumstances. Council Brothers, Inc. v. City of Tallahassee, 634 So. 2d 264, 266 (Fla. 1st D.C.A. 1994) (citing North American Co. v. Green, 120 So. 2d 603, 610 (Fla. 1959)).
25 Spence v. Zimmerman, 873 F.2d 256, 258–59 (11th Cir. 1989).
26 Reserve, 17 F.3d at 1379; Hynes v. Pasco County, 801 F.2d 1269 (11th Cir. 1986).
27 The 11th Circuit has stated that any land use decision that is confiscatory falls under the takings clause found in the Fifth Amendment and no separate cause of action for a 14th Amendment due process taking exists. Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 613 (11th Cir. 1997). In a Fifth Amendment taking action, a plaintiff must show a deprivation of all beneficial use of the property. That is extremely difficult for a plaintiff to do because unless the full bundle of property rights is taken, there is no taking. Id. at 614.
28 Key Haven, 427 So. 2d at 159–60.
29 Id. at 160.
30 Id.
31 In Collins v. City of Harker Heights, the Supreme Court stated that it “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this uncharted area are scarce and open ended.”
32 Triomphe Investors v. City of Norwood, 49 F.3d 198, 202–03 (6th Cir. 1995); Gardner v. Baltimore Mayor & City Council, 969 F.2d 63, 69 (4th Cir. 1992); DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 129–30 (2d Cir. 1998).
33 See, e.g., Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45-46 (1st Cir. 1992); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988).
34 DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 599–600 (3d Cir. 1995) (relying upon the analysis in Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988).
35 In addition to Butz v. Economou, there are numerous cases giving absolute immunity to administrative officials in initiating and conducting administrative proceedings. Qualified immunity exists for discretionary acts so long as those acts do not violate clearly established constitutional rights.
36 See, e.g., Junior v. Reed, 693 So. 2d 586 (Fla. 1997).
37 Anderson v. Creighton, 483 U.S. 635, 640 (1987). This is an objective legal standard set forth in Harlow v. Fitzgerald, 457 U.S. 819. See also Davis v. Scherer, 468 U.S. 183, 194–95 (1984).
38 Fundamental rights include all First Amendment rights, the right to vote, the right to travel, and the right to privacy. Real property and reputation are not fundamental rights afforded substantive due process protection. Collins, 38 F. Supp. 2d at 1342, 1344.
39 The strict scrutiny standard is applied when a suspect classification or fundamental right is involved. The ownership and use of property is not considered a fundamental right.
40 This is unlike the strict scrutiny test, when the government has the burden of proving that the governmental action is necessary.
41 Baker v. McCollan, 443 U.S. 137, 145. Collins, 38 F. Supp. 2d 1338, provides a discussion of what process is due.
42 Henniger, 7 Supp. at 1338.
43 A “hearing” does not necessarily mean an actual hearing.
44 See Collins, 38 F. Supp. 2d 1338 for a discussion of what process is due.
45 Whether a landowner agreed to the propriety of the action by a settlement or whether it was judicially determined is irrelevant. Atlantic, 78 So. 2d at 807.
46 McKinney, 20 F.3d at 1553–54 (supporting a dismissal for failure to state a §1983 claim).
Joseph D. Richards received his bachelor of arts degree from Baylor University in 1984 and his J.D. from the University of Florida in 1987. Mr. Richards currently serves as an assistant county attorney for Pasco County.
Alyssa A. Ruge received her bachelor of arts degree from the University of South Florida in 2001 and her J.D. from Stetson University College of Law in 2003, where she was a senior associate on the Stetson Law Review.
This column is submitted on behalf of the Environmental and Land Use Law Section, George F. Gramling III, chair, and Robert Manning, editor.
