The Challenge of Due Process, 1983, and Property Rights

Abstract

This outline is intended to be a basic primer on some of the issues that surround that application of the Due Process Clause to local land use decision making. Many courts are reluctant to use the Due Process Clause to protect property and economic rights. This reluctance stems, in part, from a fear of judicial activism - at least in the post Carolene Products world where social rights are seen to be in greater need of judicial protection than economic rights. After procedural due process protections were extended to new property or entitlements, the United States Supreme Court cabined this expansion in Roth v. Board of Regents by confining it to new property that had a legitimate claim of entitlement. While this limitation of due process for new property was not targeted to the application of due process to old or real property, a number of state and lower courts have since held that neither procedural or substantive due process rights attach to interests in real property unless those interests are already vested under state law. This trend is contrary to the core function of the due process clause to protect rights in property and begs the question of how property rights can become vested in a regime devoid of due process. The reluctance of courts, especially federal courts, to second-guess local land use decision-making is a substantial hurdle to the use of the Due Process Clause to reverse unfair local land use processes. This paper also summarizes briefly the law of procedural due process as it relates to land use. The application of substantive due process to land use decisions - when that doctrine is available - is fraught with inconsistency across and even within various appellate jurisdictions. There is no coherent understanding or application of a consistent theory of substantive due process in the circuit and state courts. Moreover, the standard of substantive due process review for land use decisions varies wildly from arbitrary and capricious to shocks the conscience, the latter standard being more appropriate to deprivations of liberty in the context of law enforcement than for local land use decision making. Finally, this outline touches briefly on the application of the Equal Protection Clause to local land use decision making.