News & Events

News & Events

9.1.2005

Substantive Due Process Claims in the Land-Use Context: The Need for a Simple and Intelligent Standard of Review

Bookmark and Share

When a municipal government denies a landowner’s permit or zoning application, the landowner does not have a legitimate “takings” claim if the land is still economically viable. In this situation, an aggrieved landowner can bring a federal claim for violation of substantive due process under section 1983 of the Civil Rights Act for denial of her fundamental right to property. The federal circuits approach these claims in a variety of different ways, but, as illustrated by a recent Third Circuit decision, all the circuits are moving toward very strict standards of review that may eventually bar these cases entirely in federal court. Although federal courts’ concerns of becoming “zoning boards of appeal” are legitimate, this Comment advocates for a standard of review that not only allows these cases to be heard in federal court, but recognizes the unique land-use context. This standard must balance the due process harm to the landowner against the legitimate government interest furthered by denial of the application.