Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

When cert fails, go s 1983?

Last week I had an entry on how not to prosecute a takings case that also involved how not to attach 1983 liability on either the municipality or the individuals. Well, in this case, the 11th tells us a lot about when a decisionmaker could be personally liable for constitutional violations (alleged 1st amendment retaliation against an employee in this case). The critical distinction made bright is that of when a decision can't be hung on the County or City as the final policy maker (Monell immunity for the gov't) but CAN be hung on the official individually as the decision maker.

There's a great discussion about how various "cut outs" like administrative review boards can shield the local government from liability because it doesn't make the final policy but also provides the necessary due process. But it also points out that these same processes can't (necessarily) shield the official who makes the decision if the official's decision is binding (even if it is appealable).

There's also a very thorough discussion of estoppel concepts regarding how/when/why a litigant who loses a cert case against the decision of the quasi-judicial body (read BZA or even the commission) might still have a cause of action against the decisionmaker.

The point?

1) If the local commission isn't the policymaker - that is, if it doesn't get its hands dirty in making the decision - it avoids immunity under Monell. So if you've got a BZA or other board to make quasi-judicial determinations, the government can avoid liability.

What wasn't answered in this case is what happens if the commission doesn't make the decision, but gets to hear and judge it in a quasi-judicial capacity - if they're only applying policy and deciding facts, are they still the policymaker (I'd say so, but)... (not that based on another recent case they probably have absolute immunity on a personal level).

2) If a local official gets to make a policy call - say the Zoning Official gets to turn down permits or the County Administrator makes determinations of site plan approvals - the official may well have personal liability for decisions that violate an applicant's rights - even if there is an appeals process after their decision. Unless you have an APA style situation where taking the decision to a hearing makes the official's decision preliminary rather than final, the official is potentially liable (though qualified immunity may attach).

Think back to Yardarm - aside from the really erroneous "there's no property right here" part of the decision, the Court let the City off on the basis that the zoning official couldn't make policy. You wonder what would happen to the quality of decisionmaking for good or ill if a few zoning administrators get sued personally under 1983 for violating due process, equal protection and/or takings.

Why might we see suits against the "shallow pockets" of the administrators?

Many of us know or have deep suspicions about situations we've been in where the administrative officials were taking pretty extreme positions without "official" direction from the County administrator/City Manager/or Commission itself - pretty much knowing that someone had counted noses on a position and that a policy was being established without any official responsibility being taken. In such a situation, maybe a suit against the administrators involved will lead them to move the responsibility up the line and clear away some of the cobwebs -- a local government kind of "transparency" that so many corporations have found themselves subject to in the past few years.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.