Land Use and Local Government Law and Litigation

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An Insanely Bad Decision from the 11th

On April 11 (sorry, I'm a bit behind), the 11th Circuit issued this opinion in Lewis et al v. Brown, --- F.3d ----, 2005 WL 1159155 . The court not only wrongly (IMHO) applied McKinney v. Pate to hold that land use decisions aren't protected by substantive due process, it actually held that the federal courts could (and clearly would) make their own determinations of whether a state actor's decision was executive as opposed to legislative, regardless of state treatment of the decision.

The case involved the denial of a rezoning. The plaintiffs claimed that the denial violated their substantive due process rights as it was arbitrary and capricious because the requested zoning was consistent with the local comprehensive plan. In its apparent determination to get out of its constitutionally and statutorily mandated role as protectors of civil rights, the court made two convenient but serious errors in law.

First, the court distorted not one, but two doctrines to claim that substantive due process isn't available to executive decisions regarding land use regulation. It first cited McKinney v. Pate and Palko v Connecticut for the true proposition that due process protects fundamental rights, those implicit in a concept of ordered liberty. Of course, that doctrine applies to the determination of when due process applies to the deprivation of LIBERTY, not property.

It then went on to cite the post-Roth "new property" cases - particularly McKinney - for the proposition that due process does not protect "state created rights" but only those created by the constitution, and cites an earlier 11th Circuit case for the proposition that "land use rights like zoning restrictions" fall into that category. So the court basically lumps the right to use and enjoy property - guaranteed by most state constitutions (definitely Florida's) and implied by the Federal Constitution - in with "creature of statute" interests like welfare.

BOSH AND DOUBLE BOSH. Under common law, the right to put land to any lawful use was an essential component of the property right in land. This has been repeatedly and historically held to mean that that any restriction on the right to use land was subject to due process review. That is, one could be "deprived" of the right to use property in a particular way by a regulation, but that due process attached to the regulation AND ITS ADMINISTRATION. Any other view holds that the decision to regulate a use of land removes it from the set of rights in property as opposed to merely regulating it - and I know of no decision that has made that determination and several that hold against it (see Moorman v. DCA, for example).

The critical distinction between due process and takings has been that in determining whether a regulatory taking had occurred, the "whole property" was examined (both in scope and set of uses), but for due process analysis, every limitation on an historic right in land was a "deprivation" subject to due process review. So the rights in land that are regulated by zoning and other land use regulations are "rights" and "property," (not "mere expectancies" or "state created interests") and insofar as the regulation denies or limits them, it must do so subject to due process review, both substantive and procedural.

And the idea that "zoning rights" or "land use" rights are state-created (in the Roth sense) is simply ludicrous. Property rights in land were constitutionally recognized for federal purposes both in the Fifth Amendment and in the Fourteenth. Even if the boundaries of those rights (nuisance law, for example) may be altered by the state, the core CONSTITUTIONAL right to own and use property is one that has always been recognized in real property and even in personal property.

So, the courts completely miss the proper analysis when they look at a permit or other regulatory action and don't look behind it to whether there is an historic right being regulated (deprived). At its root, the post-Roth "new property" cases simply should not be applied when a common law and constitutionally recognized right is being regulated.

This argument obviously needs all the requisite cites and niceties to become a nice Bar Journal or Law Review piece, but it's the consistent representation of our legal history. What's not consistent is the federal courts' activist hostility to protecting our civil rights in property.

Which leads us to the other gross distortion. The court applied the so-called "functional analysis," which looks at the scope of application of a decision, to hold that any land use decision that affects only a single person (or limited group of persons) is executive in nature and therefore falls into the McKinney v. Pate trap. OK folks, the federal court held that for federal analysis, it can declare any land use decision executive on its own, without any resort to state-law analysis. Talk about an activist judiciary!

Under the McKinney analysis, a person subject to an executive decision only gets the procedural due process rights provided by the statute or rule that authorizes the decision. It was designed for use in employment benefits and welfare cases, where the "entitlement" (i.e., the property interest created by the statute) is tied to the processes that create and protect it. Here, there are only the state enabling laws that authorize local governments to regulate land (Georgia's, in this case). So where do the procedural rights come from? I guess the court doesn't care, it didn't bother to point to any source of them.

Bad opinion. Bad precedent, bad analysis, and bad for civil rights. I hope this gets appealed en banc and I hope this gets taken up to the Supremes.

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