Land-Use Litigation: Doctrinal Confusion under the Fifth and Fourteenth Amendments

Urban Lawyer

Volumn 28, Issue 4, 1996, Pages 765-788

  Roberts, Thomas E ^a   Milner, Karen Edginton ^b   McMurry, Robert I ^c  

^a WAKE FOREST UNIVERSITY   (United States)

^b LaMothe and Hamilton PC   (United States)

^c LLP   (United States)

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[No Author keywords available]

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EID: 1842583483     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (157)

1. 505 U.S. 1003 (1992).
2. 114 S. Ct. 2309 (1994).
3. There is also the so-called due process taking, which simply dresses up a Fifth Amendment takings claim in Fourteenth Amendment language. This claim may be preferable to some since injunctive relief might be available, as opposed to the Fifth Amendment's sole remedy of compensation. See Eide v. Sarasota County, 908 F.2d 716, 720-22 (11th Cir. 1990). This claim is superfluous and its existence in doubt since it is likely subsumed within the Fifth Amendment. See DAVID L. CALLIES, ROBERT H. FREILICH & THOMAS E. ROBERTS, CASES AND MATERIALS ON LAND USE 312 (2d ed. 1994). The discussion here centers on the claim that arbitrary and capricious state conduct violates substantive due process. It is separate from a takings claim, in part for the reason that it does not depend on a showing of loss of value. See Eide, 908 F.2d at 716.
4. 447 U.S. 255 (1980).
5. 277 U.S. 183 (1928).
6. 438 U.S. 104 (1978).
7. 447 U.S. at 260-61 (emphasis added) (citation omitted).
8. 260 U.S. 393 (1922).
9. For a critical discussion of the Agins formulation, see Jerold S. Kayden, Land Use Regulations, Rationality, and Judicial Review: The RSVP in the Nollan Invitation (Part I), 23 URB. LAW. 301, 313-327 (1991).
10. Damages also could be awarded in appropriate cases, but would not be mandatory as they are in a takings case.
11. 638 N.E.2d 533 (Ohio 1994). See also Central Motors Corp. v. City of Pepper Pike, 653 N.E.2d 639 (Ohio 1995).
12. Gerijo, 638 N.E.2d at 533.
13. Id.
14. Id. at 535.
15. Id. at 537.
16. The court refers at one point to the Ohio Constitution not for a takings or due process limit on government rights, but rather to note the governmental power to regulate land use.
17. Gerijo, 638 N.E.2d at 533.
18. Neighbors had complained of noise from nearby commercial uses. Gerijo, 638 N.E.2d at 538.
19. Id.
20. Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926).
21. There are respectable arguments that reject substantive due process, but the Ohio court expressed no intention of rejecting the premise of substantive due process. See, e.g., National Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995) (questioning the existence of a substantive due process right and noting that at best it is implied and narrow; only laws that affect fundamental rights come within the purview of substantive due process). See also United States v. Carlton, 114 S. Ct. 2018, 2026 (1994) (Scalia, J., concurring) (labeling substantive due process an "oxymoron").
22. 563 So. 2d 622 (Fla. 1990).
23. Id.
24. Orlando/Orange County Expressway Auth. v. W & F Agrigrowth-Fernfield, Ltd., 582 So. 2d 790 (Fla. Dist. Ct. App. 1991).
25. Department of Transp. v. Weisenfeld, 617 So. 2d 1071 (Fla. App. 1993).
26. 640 So. 2d 54 (Fla. 1994).
27. Id. at 57.
28. Id.
29. Eide v. Sarasota County, 908 F.2d. 716, 720 (11th Cir. 1990).
30. In the context of the Florida official map cases, and the finding in Joint Ventures that the map had only the purpose of depressing values in anticipation of future eminent domain proceedings, the Act is, in effect, an eminent domain exercise disguised as a police power control. There is a public purpose (highways) and compensation can be awarded. However, in cases where the due process violation is a failure to promote a public end (no redheads in this zone), compensation should not be considered as a remedy.
31. A.G.W.S., 640 So. 2d at 54.
32. See Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir. 1988).
33. Albright v. Oliver, 114 S. Ct. 807, 820 (1994) (Souter, J., concurring).
34. See Pearson v. City of Grand Blanc, 961 F.2d 1211 (9th Cir. 1992).
35. 35 F.3d 1198 (7th Cir. 1994).
36. Id.
37. Id.
38. Id. at 1201.
39. See Coniston, 844 F.2d at 461.
40. 855 F. Supp. 555 (Conn. App. Ct. 1994).
41. TLC Dev., Inc. V. Planning & Zoning Comm'n of Branford, 577 A.2d 288 (Conn. 1990).
42. Id. at 558.
43. Id.
44. 863 F.2d 205 (2d Cir. 1988).
45. Id. at 216.
46. For example, TLC relied in part on Elsmere Park Club L.P. v. Town of Elsmere, 771 F. Supp. 646 (D. Del. 1991), where the court found a violation of substantive due process based on a town's refusal to permit an owner of apartments damaged in a flood to remedy the unsanitary conditions since it was a right he had under existing local law as a nonconforming use. The town wanted to pass a law prohibiting apartments, including nonconforming uses, from locating in a floodplain for health and safety reasons, and for this, amazingly, it was found to violate due process.
47. 23 F.3d 164 (7th Cir. 1994).
48. Id.
49. Id.
50. That victory was of little solace to the developer since the court went on to find that no due process violation had occurred.
51. 397 U.S. 254 (1970).
52. 408 U.S. 593 (1972).
53. 408 U.S. 564 (1972) (a procedural due process case, the Court held that a teacher at a state university lacked a property interest to require the university to provide a hearing when it decided not to renew his contract of employment).
54. Id. at 577.
55. Id.
56. 483 U.S. 825, 833 n.2 (1987). The Michigan Supreme Court debates the significance of Nollan's footnote two in Electro-Tech, Inc. v. H.F. Campbell, 445 N.W.2d 61 (Mich. 1989). The dissent in Electro-Tech is puzzled by courts which continue to look for entitlements. Id. at 88. The majority does not see the Nollan footnote as binding since Nollan was a taking case, but it does not say why property should be defined differently for purposes of the Fourteenth Amendment.
57. 870 F.2d 911 (2d Cir. 1989).
58. Id. at 915 (emphasis added).
59. It is not readily apparent why land regulation cases that involve applications to local regulators have applied the Roth entitlement test to inquire whether an entitlement exists in what has been applied for-whether a zoning variance, a business license, or a building permit-instead of simply recognizing the owner's indisputable property interest in the land he owns. . . . Id. at 917. Perhaps the reason is revealed in the court's statement that "[i]f federal courts are not to become zoning boards of appeals . . . the entitlement test . . . must be applied with considerable rigor." Id.
60. Kelly Property Dev., Inc. v. Town of Lebanon, 627 A.2d 909 (Conn. 1993).
61. But see Resolution Trust Corp. v. Town of Highland Beach, 18 F.3d 1536 (11th Cir. 1994).
62. 871 P.2d 320 (Nev. 1994). See also Kelly, 627 A.2d at 909 (test applies to substantive and procedural due process).
63. Id.
64. 969 F.2d 63 (4th Cir. 1992).
65. Id.
66. Id. at 71.
67. 17 F.3d 1374 (11th Cir. 1994).
68. Where a property right is found in a permitting process, the owner must still show an arbitrary denial. If the state has a rational reason for its action, it will not violate due process. Decarion v. Monroe County, 853 F. Supp. 1415 (S.D. Fla. 1994).
69. River Park, 23 F.3d at 166.
70. Red Maples Properties v. Zoning Comm'n, 610 A.2d 1238, 1241 (Conn. 1992).
71. 840 F.2d 1124 (3d Cir. 1988).
72. Id.
73. 53 F.3d 592 (3d Cir. 1995), cert, denied, 116 S. Ct. 352 (1995).
74. 969 F.2d at 69.
75. River Park was a procedural due process case. The Seventh Circuit has said recently that it does not think there is a right of substantive due process, but that if there is one, it is limited to fundamental rights, which it says, exclude property. National Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124, 1129 (7th Cir. 1995). See also Birck v. County of Walworth, 856 F. Supp. 509 (E.D. Wis. 1994).
76. DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592 (3d Cir. 1995), cert, denied, 116 S. Ct. 352 (1995) (ownership test); Triomphe Investors v. City of Northwood, 49 F.3d 198 (6th Cir. 1995), cert, denied, 116 S. Ct. 70 (1995) (entitlement test).
77. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
78. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).
79. 505 U.S. at 1026-32.
80. 18 F.3d 1560 (Fed. Cir. 1994), cert, denied, 115 S. Ct. 898 (1995).
81. Pub. L. No. 92-500, 86 Stat. 884 (Oct. 8, 1972) (amending the Federal Water Pollution Control Act) (codified as 33 U.S.C. § 1344 (1988)).
82. Florida Rock, 18 F.3d at 1560.
83. Id. at 1565-67.
84. Id. at 1562-65.
85. Id. at 1570.
86. Id. (quoting Penn Central, 438 U.S. at 124).
87. Florida Rock, 18 F.3d at 1570.
88. Id.
89. 605 F.2d 1117 (9th Cir. 1979), cert, denied, 445 U.S. 928 (1980).
90. Id. at 1121.
91. 31 Ct. Cl. 37(1994).
92. Id. at 40, 43.
93. Id. at 47.
94. Id. at 49.
95. Id. at 44, 47-48.
96. 32 Ct. Cl. 586 (1995).
97. Id. at 588.
98. Id. at 594.
99. Cienega Gardens v. United States, 33 Fed. Cl. 196 (1995); Atlas Enter. Ltd. v. United States, 32 Fed. Cl. 704 (1995).
100. Cienega Gardens, 33 Fed. Cl. at 223; Atlas Enter., 32 Fed. Cl. at 707.
101. 70 F.3d 1566 (10th Cir. 1995).
102. Id. at 1574-77.
103. See Florida Rock, 18 F.3d at 1572, 1572 n.32.
104. Clajon Production, 70 F.3d at 1577 (citing Penn Central, 438 U.S. at 130).
105. Id. (citing Lucas, 505 U.S. at 1014-16).
106. 28 F.3d 1171 (Fed. Cir. 1994).
107. Id. at 1174.
108. Id.
109. Id.
110. Id. at 1180.
111. Loveladies Harbor, 28 F.3d at 1181.
112. Id. at 1181-82.
113. Id.
114. 438 U.S. at 130-31.
115. 663 A.2d 1328(1995).
116. Id. at 1332.
117. Id.
118. Id. at 1332-33.
119. Id. at 1332.
120. Quirk, 663 A.2d at 1332-33.
121. Id. at 1333.
122. 473 U.S. 172 (1985).
123. 114 S. Ct. 2309 (1994).
124. Though some question exists as to the final decision rule of Hamilton Bank in exaction cases, it does not appear that anyone has specifically questioned the applicability of Hamilton Bank's second prong, the compensation requirement. For a complete discussion of this issue, see Thomas E. Roberts, Fifth Amendment Taking Claims in Federal Court: The State Compensation Requirement and Principles of Res Judicata, 24 URB. LAW. 479 (1992).
125. 869 P.2d 350 (Or. Ct. App. 1994).
126. Id. at 351.
127. Id.
128. Id. at 352.
129. Id. at 353.
130. Nelson, 869 P.2d at 354, 355 (Zandau, J., concurring).
131. Hamilton Bank, 473 U.S. at 172; Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 294-95 (1981).
132. See Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1402 (9th Cir. 1989), cert, denied, 494 U.S. 1016 (1990).
133. Tinnerman v. Palm Beach County, 641 So. 2d 523, 525 (Fla. Dist. Ct. App. 1994).
134. Conceptually, an impact fee fits more appropriately as an arbitrary and capricious substantive due process claim than as a Fifth Amendment taking claim.
135. See discussion supra note 99.
136. 114 S. Ct. at 2328 (Stevens, J., dissenting) (citing Preseault v. ICC, 494 U.S. 1, 11-17, 110 S. Ct. 914, 921-25, 108 L. Ed. 2d 1 (1990) (finding takings claim premature because property owner had not yet sought compensation under Tucker Act); Model v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 294-95, 101 S. Ct. 2352, 2370, 69 L. Ed. 2d 1 (1981) (no taking where no one "identified any property . . . that has allegedly been taken")).
137. See former Cal. Govt. Code §§ 65913.5, 66021 (1983 & 1996 Supp.). See also Balch Enter., Inc. v. New Haven Unified Sch. Dist., 268 Cal. Rptr. 543 (Cal. Ct. App. 1990) (suit challenging school fee paid under protest subject to four-year statute of limitations).
138. Trimen Dev. Co. v. King County, 829 P.2d 226 (Wash. Ct. App. 1992), aff'd on other grounds, 877 P.2d 187 (Wash. 1994) (developer who paid park fee and proceeded with development was estopped from challenging legality of ordinance). But see Henderson Homes, Inc. v. City of Bothell, 877 P.2d 176 (Wash. 1994) (where a park impact fee is characterized as a tax, a suit to recover payment was allowed and the use of estoppel by the city was rejected in light of the city's lack of clean hands). See also Board of Supervisors of North Coventry Township v. Laurelwood Constr. Co., 600 A.2d 690 (Pa. Commw. Ct. 1991), appeal denied, 608 A.2d 32 (Pa. 1992) (state law required developer to appeal condition to zoning board of adjustment or township's legislative body rather than pay fee and seek judicial review); In re 1983-84 County Tax Levy v. Box Butte County Bd. of Equalization, 374 N.W.2d 235 (Neb. 1985). But see Nelson v. City of Lake Oswego, 869 P.2d 350 (Or. Ct. App. 1994) (property owners conveyed easement and then sued; no taking was found but the court did reach the merits).
139. The delay might be compensable under First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 258 Cal. Rptr. 893 (1989).
140. See Roberts, supra note 124.
141. See, e.g., DEL. CODE ANN. tit. 29, § 605 (1994 Supp.); IDAHO CODE § 67-8003 (1989); IND. CODE § 4-22-2-32 (1996 & 1996 Supp.); Miss. CODE ANN. §§ 17-1-3, 95-3-29 (1972); Mo. REV. STAT. §§ 536.017, 536.018 (1994); TENN. CODE ANN. § 12-1-201 to -206; UTAH CODE ANN. §§ 63-90-1 to -4, 63-90a-l to -4 (1996 Supp.); W. VA. CODE ANN. §§ 22-1A-1 to -6 (1994).
142. See R.G. Converse, Property Rights Legislation: Some Question, in TAKINGS: LAND DEVELOPMENT CONDITIONS AND REGULATORY TAKINGS AFTER LUCAS AND DOLAN ch. 12 (1996).
143. Id. North Carolina is sometimes listed as having a statute that is a part of the property rights movement. It does not. A provision in N.C. GEN. STAT. § 113-206 (1994) provides that compensation be paid when property rights are destroyed but it does not relate to regulatory actions by the state. Rather, the provision is part of legislation enacted in 1965 to clear title to lands claimed under franchises or rights of fishery.
144. For a summary, see Recent Legislation, Land-Use Regulation - Compensation Statutes - Florida Creates Cause of Action for Compensation of Property Owners When Regulation Imposes "Inordinate Burden," 109 HARV. L. REV. 542 (1995).
145. ARIZ. REV. STAT. ANN. §§ 37-220 to -222 (1993 & 1995 Supp.) (rescinded in a statewide referendum).
146. WASH. REV. CODE § 36.70A.370 (1996 Supp.) (Protection of Private Property Act) (rescinded by voters in Nov. 1995).
147. See Takings Crowd Rebuffed, S.F. EXAMINER, Nov. 19, 1995, at E-5.
148. See. e.g., Private Property Protection Act of 1995, H.R. 925, 104th Cong., 1st Sess.
149. See TEX. GOV'T CODE. ANN. § 2007.001-.006 (West 1996).
150. But only when acting extraterritorially. TEX. GOV'T CODE ANN. § 2007.003(4)(b) (West 1996).
151. LA. REV. STAT. Ann. §§3:3602(11), 3:3610 (West Supp. 1996).
152. LA. REV. STAT. ANN. §3:3622 (West Supp. 1996).
153. Miss. CODE ANN. §§ 49-33-7(n) (1994 Supp.).
154. FLA. STAT. ch. 70.001(2) (1996).
155. For an excellent analysis, see Sylvia R. Lazos Vargas, Florida's Property Rights Act: A Political Quick Fix Results in Mixed Bag of Tricks, 23 FLA. ST. UNIV. L. REV. 315 (1995).
156. FLA. STAT. ch. 70.001(5)(a) (1996 Supp.).
157. FLA. STAT. ch. 70.001(4) (1996 Supp.).