Under Lingle, a facial challenge to the validity of a regulation is properly brought under the Due Process Clause, not under the Takings Clause. In Alto Eldorado P’ship v. County of Santa Fe, 634 F.3d 1170, 1175-76 (10th Cir. 2011), developers sought to circumvent the Williamson County ripeness requirements for final decision and denial of compensation by presenting a facial challenge under the Takings Clause. The Tenth Circuit court applied the Lingle distinction and determined that the developers’ allegedly-facial takings claim was a regulatory claim. Because the developers had not sought compensation or alleged that compensation was unavailable, their challenge to the ordinance at issue (requiring a percentage of all new developments be made available as affordable housing) was not ripe. Though Lingle held that due process should not be a part of the takings analysis, some feel the opposite is true.Ostler, Restoring Due Process as the Essential First Step in Every Takings Case, 13 Loy. J. Pub. Int. L 1 (2011).
Add at end of Notes and Questions No. 3, Page 179 at the end of the paragraph:
For a case in which the court found that the property owner's substantive due process claim was ripe but that the property owner still could not move forward on the claim because it failed to "plead a plausible arbitrary and capricious substantive due process claim" see Acorn Land, L.L.C. v. Balt. County, 2010 LEXIS 19582 (4th Cir. 2011). The court held that, in order to establish a substantive due process claim based upon arbitrary and capricious conduct, Acorn had to prove '" (1) that [it] had property or a property interest; (2) that the state deprived [it] of this property or property interest; and (3) that the state's action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.'" Acorn's complaint failed the third prong because a state court remedy was available and Acorn failed to allege that its injury could not be rectified by seeking relief in state court.
Add at end of Notes and Questions No. 3, Page 179 at the end of the paragraph:
For a case in which the court found that the property owner's substantive due process claim was ripe but that the property owner still could not move forward on the claim because it failed to "plead a plausible arbitrary and capricious substantive due process claim" see Acorn Land, L.L.C. v. Baltimore County, 2010 LEXIS 19582 (4th Cir. 2010). The court held that, in order to establish a substantive due process claim based upon arbitrary and capricious conduct, Acorn had to prove '" (1) that [it] had property or a property interest; (2) that the state deprived [it] of this property or property interest; and (3) that the state's action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.'" Acorn's complaint failed the third prong because a state court remedy was available and Acorn failed to allege that its injury could not be rectified by seeking relief in state court.
Add to the end of Notes and Questions 4, Application of the Penn Central factors after Lingle, pg. 179: In Bonito Partners, LLC v. City of Flagstaff, 229 Arz. 75 (Arz. App. 2012), a property owner challenged a city ordinance that required property owners to keep the sidewalks adjoining their property in repair. The trial court granted summary judgment in favor of the City, finding that the ordinance was a valid exercise of the City’s police power for nuisance abatement. The court of appeals agreed that the ordinance was a lawful exercise of the City’s police power but, citing the Lingle decision, warned against conflating the issues of whether the ordinance is valid under the Fourteenth Amendment Due Process Clause and, if so, whether the ordinance violates the Fifth Amendment Takings Clause. The court remanded for consideration of whether the City’s lawful exercise of its police power authority nevertheless was an unconstitutional taking under Penn Central. Neither party had addressed the Penn Central issue; instead, the court observed that the litigants had relied on pre-Lingle case law that failed to make the distinction between takings and due process analysis.
Add to the end of Notes and Questions No. 5, at the end of the paragraph ending on p. 180: See also Lewyn, Character Counts: The “Character of the Government Action” in Regulatory Takings Actions, 40 Seton Hall L. Rev. 597 (2010) (arguing that “courts should continue to follow pre-Lingle precedent holding that the ‘character’ factor includes the public interest supporting the government action at issue”).
Insert page 180 at the end of note 5: Ostler, Restoring Due Process as the Essential First Step in Every Takings Case,13 Loy. J. Pub. Int. L. 1 (2011); Spohr, Cleaning Up the Rest of Agins: Bringing Coherence to Temporary Takings Jurisprudence and Jettisoning "Extraordinary Delay", 41 Envtl. L. Rep. News & Analysis 10435 (2011); Lewyn, Character Counts: The “Character of the Government Action” in Regulatory Takings Actions, 40 Seton Hall L. Rev. 597 (2010); Siegel & Meltz, Temporary Takings: Settled Principles and Unresolved Questions, 11 Vt. J. Envtl. L. 479 (2010);
Note on Takings Legislation in the Oregon State Land Use Program.
See also Sullivan & Eber, Protecting our Farmlands: Lessons from Oregon 1961-2009, 62 Plan. & Env. Law 3 (2010) (explaining Oregon’s updated zoning laws).
Add to end of second full paragraph on p. 186 that starts “To achieve its purpose…”: See also Friends of Yamhill County, Inc. v. Bd. of Comm’rs, 264 P.3d 1265 (Or. 2011), where the Oregon Supreme Court upheld the application of the six-factor test from Clackamas Co. v. Holmes, 508 P.2d 190 (Or. 1973) (nicknamed the “Holmes test”) in determining when a common law vested right to complete a development exists.
Insert page 187 at the end of the paragraph that starts “The Future of Measure 49…”: (In 2012 update.) Landowners have not fared well in challenges to Measure 49. In Friends of Yamhill Cnty., Inc. v. Board of Comm’rs of Yamhill Cnty., 351 Or. 219 (2011), the Supreme Court of Oregon held that the landowners holding a Measure 37 waiver did not have a vested right to complete a partially constructed subdivision after the effective date of Measure 49. The Oregon Supreme Court noted that Measure 49 retroactively extinguished previously issued Measure 37 waivers. See also Campbell v. Clackamas Cnty., 270 P.3d 647 (Or. App. 2011) (remanding case to county for failure to calculate properly the expenditure ratio in relation to the use landowners sought in determining whether landowners had a vested right in the continued use and contemplation of the use described in the Measure 37 waiver); Curry v. Clackama Cnty., 248 P.3d 1 (Or. App. 2011) (retroactive application of Measue 49 did not amount to a taking and landowners did not have a vested right in the continued use of the property); Bruner v. Josephine Cnty., 246 P.3d 46 (Or. App. 2010) (retroactive application of Measure 49 to rezone landowners’ property for agricultural use did not amount to a taking without just compensation).
Insert page 187 after first sentence of paragraph that starts “The future of Measure 49…”: It appears that many cases are being resolved against landowners. For example, in Friends of Yamhill Cnty., Inc.v. Board of Comm’rs of Yamhill Cnty., 351 Or. 219 (2011), the Supreme Court of Oregon held that the landowners holding a Measure 37 waiver did not have a vested right to complete a partially constructed subdivision that they did not complete before the effective date of Measure 49, when the area was rezoned such that a subdivision would be impermissible. The Oregon Supreme Court noted that Measure 49 reatroactively extinguished Measure 37 waivers that had been previously issued. For four other recent Measure 49 cases, see Campbell v. Clackamas Cnty., 270 P.3d 299 (Or. App. 2011) (holding that 4.7% expenditure ratio failed to establish a vested right for landowner to complete a partially constructed 41 lot subdivision); Fischer v. Benton Cnty., 260 P.3d 647 (Or. App. 2011) (remanding case to county on the grounds that county failed to properly calculate the expenditure ratio in relation to the use that the landowners sought to vest in determining whether the landowners had a vested right in the continued use and completion of the use described in the Measure 37 waiver); Curry v. Clackamas Cnty., 248 P.3d 1 (Or. App. 2011) (holding that retroactive application of Measure 49 did not amount to a taking and that landowners did not have a vested right in the continued use of the property); Bruner v. Josephine Cnty., 246 P.3d 46 (Or. App. 2010) (holding that the retroactive application of Measure 49 in the rezoning of landowners’ property for agricultural use did not amount to a taking without just compensation).
In Bowers v. Whitman, 671 F.3d 905 (9th Cir. 2012), the court held that the plaintiffs’ did not have a vested property interest for compensation or a particular type of land use under Measure 37. The court rejected three possible theories of vested property rights: (1) an “accrued cause of action is not a vested property interest for Takings Clause purposes until it results in a ‘final unreviewable judgment’”; (2) “Measure 37 waivers clearly did not constitute an express and unequivocal promise by Oregon to provide compensation, because Oregon had the option of providing either compensation or removing certain land use regulations”; and (3) “an interest in a particular land use does not constitute a protected property interest, unless the interest has vested in equity based on principles of detrimental reliance” and the plaintiffs’ claim failed on this third point because they were not ripe and the plaintiffs had not exhausted their remedies.
Insert page 187 at the end of the paragraph that starts “For a discussion of these laws”: Carter, Oregon’s Experience with Property Rights Compensation Statutes, 17Southeastern Envtl. L.J. 137 (2008);
Add to end of Note, Federal takings legislation, p. 188: In April 2011, the House of Representatives passed a bill prohibiting states or political subdivisions of a state from exercising eminent domain over property to be used for economic development. Private Property Rights Protection Act of 2011, H.R. 1433, 112th Cong. § 2(a) (2011).
In February 2012, the House of Representatives passed a bill prohibiting states or political subdivisions of a state from exercising eminent domain over property to be used for economic development “if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.” The bill was referred to the Senate in February 2012 and has not been enrolled by the Senate. Private Property Rights Protection Act of 2012, H.R. 1433, 112th Cong. § 2(a) (2012).
Insert in the first paragraph on 189 beginning “The developer can appeal…” after the sentence beginning with “She also has an equal protection claim…demands on other developments.”: City Nat’l Bank of Fla. v. City of Tampa, 67 So. 3d 293, 297 (Fla. App. 2011) (denial with prejudice of a substantive due process claim does not necessarily preclude § 1983 equal protection claims when new facts concerning the “rational basis” for an alleged discriminatory application of zoning ordinances are discovered post-cert).
SUBSTANTIVE DUE PROCESS LIMITATIONS UNDER THE FEDERAL CONSTITUTION
George Washington University v. District Of Columbia
NOTES AND QUESTIONS
Insert page 197 at the end of the paragraph that starts on page 196 “This is a difficult standard to meet”:
See also 49 WB, LLC v. Vill. of Haverstraw, No. 08CV-5784(VB), 2012 U.S. Dist. LEXIS 16518 (state appellate court’s rejection of an eminent domain action as not for a public purpose did not provide a basis for a Federal substantive due process damages claim). The court held that the Village of Haverstraw's actions were “neither arbitrary nor irrational as a matter of law; they were simply wrong" and granted judgment in favor of the Village. Id. at *8.
Add to Notes and Questions 5, page 197, Standard of Judicial Review, directly after “the reason for the ordinance, not the conduct of the official was at issue…” In EJS Properties, LLC v. City of Toledo, 698 F.3d 845 (6th Cir. 2012), the conduct of the official was before the court. In a decision that may speak as much to the standards we expect our local officials to meet as it does to constitutional due process and equal protection principles, the Court of Appeals for the Sixth Circuit held that the City of Toledo’s refusal to re-zone a site when the developer refused a city councilman’s demand for a $100,000 donation to a local retirement fund, did not violate the developers 14th Amendment Rights. The Court emphasized that a landowner does not have a property or liberty interest in a particular zoning classification, and noting that some opposition to the proposed site had materialized, the decision not to re-zone met the rational-basis review standard. Figuratively holding its nose, the court observed,
“Perhaps it is unfortunate that the solicitation of a bribe by a public official does not shock our collective conscience….[A]lthough we can condemn McCloskey for his misconduct, we simply cannot say that his behavior is so shocking as to shake the foundations of this country.”
See Also Dunes West Golf Club, LLC v. Town of Mount Pleasant, 737 S.E.2d 601 (S.C. 2013) (When landowner’s property remains valuable under current zoning restrictions and Town has legitimate concern about conversion of property uses, a taking has not occurred).
Add at end of Notes and Questions 5, p. 197: For an example of an exaction that was determined to be extortion rather than a reasonable exercise of the police power, see Hillcrest Property, LLP v. Pasco County, ---F. Supp. ---, 2013 WL 1502627 (M.D. Florida 2013) (transportation corridor preservation ordinance requiring landowners to dedicate corridor land in fee simple to Pasco County in exchange for construction permits invalidated as deprivation of substantive due process; Ordinance “discriminates based on economic aspiration” and allows Pasco County to acquire transportation rights-of-way at a “steep discount below ‘just compensation’”).
EQUAL PROTECTION LIMITATIONS UNDER THE FEDERAL CONSTITUTION
Insert at the end of the first paragraph in “D. Equal Protection Limitations…” on p. 198:
An essential element of an equal protection claim is showing that the parties making the claim have been treated differently from similarly situated parties. Harvey v. Town of Merriville, 649 F.3d 526, 532 (7th Cir. 2011) (residents of a predominantly African-American subdivision could not satisfy their § 1983 equal protection claim when they failed to provide evidence of a similarly situated unprotected class in an action concerning an under-maintained retention pond).
Add to Note 2, Applying Olech, on p. 202 after the first full paragraph: In Swanson v. City of Chetek, the Seventh Circuit held that when a party proves a clear showing of animus, without a detailed comparison to a similarly situated person, a class-of-one equal protection claim could be sustained. Swanson v. City of Chetek, No. 10-1658, 2013 LEXIS 12441 at *10. In most class-of-one cases, the comparison to similarly situated people is used to determine animus. Id. at *8-9.The Court concluded that if animus is obvious, it is redundant to require a plaintiff to prove disparate treatment in a similarly situated individual. Id. at *10. If a plaintiff can identify his specific harasser, while providing a plausible motive with sufficient detail of actions that appear legitimately discriminatory, “it would be oddly formalistic to require a near identical, one to one comparison to prove the readily apparent hostility.”Id. at *12. For an earlier Seventh Circuit recognition of animus in a “class-of-one” setting without a showing of disparate treatment, see Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012) (petitioner who had been given 24 bogus tickets as part of continuing police harassment was not required to prove a similarly situated person was not abused in a manner that deliberately discriminates in order to maintain a class-of-one claim).
Village Of Willowbrook v. Olech
NOTES AND QUESTIONS
Add as new paragraph after the first paragraph in Note 3, The “run-of-the-mill” zoning dispute, p. 203: The Fifth Circuit affirmed the lower court’s denial of plaintiff’s application in Lindquist v. City of Pasadena, 669 F.3d 225, 227 (5th Cir. 2012). There, the plaintiff’s application for a used car dealership license was denied based on a zoning ordinance which limited the proximity of used car dealerships to each other and to residential zones. Id. The plaintiffs asserted their class-of-one equal protection claim when they discovered the zoning board had granted a used car dealership license for a property one block away despite the fact that the approved property was also in violation of the proximity restriction. Id. at 232. Though the Lindquists identified comparators who had also been denied licensure and who sought an appeal, they ultimately failed the “similarly situated” analysis because each of the proposed comparators sought appeal for different proximity violations, and because the Lindquists’ argument during the zoning appeal was based upon yet another ordinance altogether. Id. at 235. The court noted that in cases involving the application of an ordinance or statute, “the plaintiffs’ and comparators’ relationships with the ordinance at issue will generally be a relevant characteristic” in the similarly-situated analysis. Id. at 234 (emphasis added).
Add at end of Note 2 Applying Olech, P. 203:
Seealso Loesel v. City of Frankenmuth, 692 F.3d 452 (6th Cir. 2012) (“class of one” action not available where “animus of the defendant-city was directed at the plaintiff’s proposed development plan and not at the plaintiff itself” (citing cases)). Loesel was a landowner who sought to sell his property to Wal-Mart for a supercenter in the resort town of Frankenmuth, Michigan. Did the court correctly apply the “animus” distinction?
FEDERAL REMEDIES FOR CONSTITUTIONAL VIOLATIONS
Relief Under Section 1983 of the Federal Civil Rights Act
The Scope of Section 1983
Custom and Policy
Procedural Due Process Actions
State Tort Liability Analogy
Immunity from Section 1983 Liability
Insert after sentence beginning “See Kaahumanu… on page 207: The Kahuumanu test consists of four factors in determining whether an act is legislative in character and effect: (1) whether the act involves ad hoc decision-making, or the formulation of policy; (2) whether the act applies to a few individuals, or to the public at large; (3) whether the act is formally legislative in character; and (4) whether it bears all the hallmarks of traditional legislation. Id. at 1220.
Add at end ofLegislative immunity, p. 207: Applying Kahuumanu in determining whether an action was legislative for the purposes of legislative immunity, the Ninth Circuit concluded that decisions to approve and promote the lease and sale of property were legislative in character and thus the mayor and city council members were entitled to absolute immunity. Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 952 (9th Cir. 2010). Two municipal employees also were entitled to qualified immunity because “a reasonable official would not have known that such actions would violate the Establishment Clause or the FHA,” the court concluded.
