Substantive due process claims in the land-use context: the need for a simple and intelligent standard of review.

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, bug 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 eases 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.

I.   INTRODUCTION

II.  CLAIMS UNDER SECTION 1983
     A. Why Section 1983?
     B. The General Scope of Section 1983
     C. Possible Claims Under Section 1983
        1. Violation of the Equal Protection Clause of the
           Fourteenth Amendment.
        2. Violation of Procedural Due Process Rights
        3. Violation of Substantive Due Process Rights
     D. The Unique Land-Use Context
     E. The Voice of the Supreme Court in the Substantive Due Process
        Realm
        1. Substantive Due Process and Executive Conduct that
           "Shocks the Conscience"
        2. The Supreme Court's Recognition of a Landowner's Right to
           Substantive Due Process Protection
III. THE THIRD CIRCUIT'S DECISION IN UNITED ARTISTS
     A. The United Artists Decisions and the Adoption of a Strict
        Standard of Review
     B. The Dissenting Opinions in United Artists
        1. Judge Cowen's Dissent
        2. Judge Nygaards Dissent
     C. Past Third Circuit Precedent in Land-Use Cases Under Section
        1983
IV.  AN OVERVIEW OF THE STANDARD OF REVIEW IN EACH CIRCUIT
     A. The Disagreement in General
     B. The "Irrational" Standard of Review: The First, Seventh and
        Eighth Circuits
        1. The First Circuit
        2. The Seventh Circuit
        3. The Eighth Circuit
     C. The Entitlement Rule: The Second and Tenth Circuits
        1. The Second Circuit
        2. The Tenth Circuit
     D. The "Arbitrary and Capricious" Standard of Review:
        The Fourth Circuit
     E. The "Rational Basis" Standard of Review: The Fifth and Sixth
        Circuits
        1. The Fifth Circuit
        2. The Sixth Circuit
V.   THE IDEAL STANDARD AND RECOGNIZING THE UNIQUE LAND-USE CONTEXT
     A. A Standard of Review Hierarchy: From Most Strict to Least
        Strict
     B. A Potential Route to Agreement: The Need for a Simplified and
        Intelligent Standard of Review
        1. Simplification: Getting Right Down to the Issue
        2. Intelligence: Recognizing the Unique Land-Use Context
     C. A Workable and Familiar Standard of Review with a Twist
        1. Back to Basics with Euclid: The "Arbitrary and Capricious"
           Standard of Review--Was the Action Based on a Legitimate
           Police Power Goal?
        2. The Twist: Requirement to Exhaust State Remedies
VI. CONCLUSION

I. INTRODUCTION

A movie theater company applies for a permit to build a theater in a small town. A year later, a competitor does the same. Eventually, the first applicant leaves town without having built at all, while the competitor's new theater is thriving. The cause of this discrepancy was, arguably, the first company's refusal to pay a $100,000 per year "impact fee" to the municipality. The discrepancy between the treatment of the first applicant and the competitor raises the serious constitutional question of whether the first applicant was denied substantive due process by the actions of the municipality. Substantive due process refers to the Fourteenth Amendment's prohibition of any government action that deprives "any person of life, liberty, or property, without due process of law." (1) The substantive component of the Due Process Clause of the Fourteenth Amendment "bars certain arbitrary, wrongful government actions 'regardless of the fairness of the procedures used to implement them.'" (2) The situation described above raises a substantive due process question because, although the municipality was working within its procedural boundaries, the outcome seems arbitrary or based on inappropriate facts--here, the "impact fee."

When a municipal government denies a landowner's permit or zoning application, the landowner usually retains some economically viable use of the land--she is only precluded from using the land in the specific way in which she desires to use it. In such a case, there is no legitimate claim of a taking without just compensation because the land is still usable. (3) In these cases, the landowner who is aggrieved by the denial of her request can bring a federal claim of violation of substantive due process under section 1983 of the Civil Rights Act (4) for denial of her fundamental right to property. (5) Section 1983 creates a cause of action for any person whose federal constitutional or statutory rights are violated under color of state law by another person. (6) The United States Supreme Court has stated that local government units are "persons" for the purpose of section 1983 claims. (7) Under the Fourteenth Amendment, section 1983 may be the basis for claims that the landowner was deprived of property without substantive due process of law.

Section 1983 claims for violation of substantive due process in land-use cases must have a distinct standard of review because the concerns in such cases are distinct. Although concerns of federal courts becoming "zoning boards of appeal" are relevant, since almost every decision by the appropriate zoning body will meet the "under color of state law" standard, these concerns should not create a bar on section 1983 claims in land-use eases.

The approach of the federal circuit courts in section 1983 land-use cases is varied and muddied and must be synthesized in a way that prevents federal courts from becoming land-use boards of appeal, while still allowing for legitimate federal review of landowners' unique claims of violation of substantive due process. This Comment will evaluate the myriad standards of review in section 1983 land-use cases and suggest a standard specifically tailored to the land-use arena. This recommended standard will take into account the unique land-use context and recognize the importance of land ownership issues to the landowner and the community, rather than clumping land-use cases in the same category with other unrelated substantive due process claims.

This Comment begins with a discussion of the Third Circuit's recent decision in United Artists Theatre Circuit Inc. v. Township of Warrington (United Artists) (8) to impose a strict "shocks the consience" standard, (9) and proceeds with a detailed exposition of the standards in each federal circuit, including a synthesis of the most important factors in the review process. This Comment then provides an overview of the inconsistency in the circuit courts and finally suggests some ways to develop a standard tailored to the land-use context.

Part II discusses the situations in which section 1983 actions arise in the land-use context--primarily when a takings claim is unavailable and inappropriate. Part II continues with an explanation of the scope of section 1983 claims generally, concluding with a brief discussion of the importance of land ownership and the need to look at land-use cases in their own unique context. This discussion recognizes the importance of land-use decisions on both the individual landowner and the community, considering that local government decisions often involve disagreements between specific landowners and the surrounding members of the community.

Part III takes a step-by-step approach to explain and analyze the Third Circuit's recent decision in United Artists to adopt the strict "shocks the conscience" standard of review and abandon its earlier precedent utilizing the broader "improper motive" standard. (10) This analysis includes a detailed fact statement compiled from the various decisions and an explanation of all the prior case history. In addition, since the United Artists decision was made explicitly in response to the Supreme Court's decision in County of Sacramento v. Lewis, (11) a criminal case involving a police chase and the resulting death of a motorcycle passenger, Part III includes an analysis of the Supreme Court's limited voice in this arena.

Part IV analyzes the case law and standards of review in each of the federal circuits, discussing where the circuits agree, but mostly concentrating on the extraordinary variety that exists between circuits. An overall synthesis of the circuits shows that the law is getting stricter regarding section 1983 claims in land-use cases and seems to be moving toward the conclusion that a landowner does not have a legitimate section 1983 claim if all she alleges is that a city council or similar municipal body denied her application without a valid public purpose.

Part V advocates a unique standard of review in section 1983 land-use cases. Simply adopting a generic standard for all substantive due process cases is not sufficient because it belittles the importance of land ownership. Ideally, a standard of review must consider both the unique interests of landowners and the motive of the decision-making body without concentrating on the "legislative" or "quasi-judicial-administrative" nature of that body's decision-malting process. The standard should also include a balancing of the due process harm to the landowner against the legitimate government interest furthered by denial of the application.

Part VI concludes by recognizing that the Supreme Court must eventually resolve this inconsistency among the circuits and this resolution must take into consideration the unique nature of land ownership and land-use concerns.

II. CLAIMS UNDER SECTION 1983

A. Why Section 1983?

Under United States Supreme Court takings jurisprudence, a taking occurs in two situations: 1) when there is a physical invasion of property (12) or 2) when a regulation substantially diminishes the value of property to the point that it is no longer economically viable. (13) In examining a regulation to determine if it is a taking of the landowner's property, the court should weigh the character of the government action, the economic impact of the action, and the effect on the landowner's expectations. (14) Therefore, the denial of a plaintiffs application to the appropriate local government body to use her land in a particular way does not constitute a taking if she still has her land, it is still economically valuable, and it is still useable for other purposes. Because the denial of her permit or zoning request cannot properly be called a taking, she has no adequate remedy for damages under state law against the local government body. (15)

In these situations, plaintiff landowners can bring suit in federal court for a denial of due process rights under section 1983, the text of which is reproduced below:

   [section] 1983. Civil action for deprivation of rights

   Every person who, under color of any statute, ordinance,
   regulation, custom or usage, of any State or Territory or the
   District of Columbia, subjects or causes to be subjected, any
   citizen of the United States or other person within the
   jurisdiction thereof to the deprivation of any rights, privileges,
   or immunities secured by the Constitution and laws, shall be liable
   to the party injured in an action at law, suit in equity, or other
   proper proceeding for redress, except that in any action brought
   against a judicial officer for an act or omission taken in such
   officer's judicial capacity, injunctive relief shall not be granted
   unless a declaratory decree was violated or declaratory relief was
   unavailable. For the purposes of this section, any Act of Congress
   applicable exclusively to the District of Columbia shall be
   considered to be a statute of the District of Columbia. (16)

B. The General Scope of Section 1983

Section 1983 creates a cause of action for any person whose federal constitutional or statutory rights are violated "under color of" state law by another "person." (17) Although section 1983 was originally enacted in 1871, (18) remedies against municipalities were barred for decades by Monroe v. Pape, (19) a 1961 Supreme Court decision holding that municipalities were not persons susceptible to suit under section 1983. (20) In 1978, the Court reversed this decision in Monell v. Department of Social Services, (21) and held that local governmental units are persons for purposes of section 1983. (22) There is a "custom and usage" requirement to the Monell decision, which states that local governments are liable only for actions that are official policy or pursuant to government custom. (23) This limitation is not problematic in most land-use cases because a formal action by a governmental body fitting the custom and usage requirement, such as the denial of a land-use application by the city council or a zoning board, often triggers the litigation. (24)

The Fourteenth Amendment of the United States Constitution creates a cause of action for a deprivation of due process: "nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (25) In land-use cases, most of the claims brought pursuant to section 1983 are based on the Fourteenth Amendment. (26) Under the Fourteenth Amendment, these actions may be based on a violation of substantive or procedural due process. (27)

C. Possible Claims Under Section 1983

There are at least three possible claims under section 1983: 1) violation of the Equal Protection Clause of the Fourteenth Amendment and violation of 2) procedural or 3) substantive due process under the Due Process Clause of the Fourteenth Amendment. Two land-use experts helpfully distinguish the three claims:

   Equal protection examines the rationality of governmental
   classifications of people and property while substantive due
   process concerns the rationality of the restraints. Procedural
   due process is concerned with whether the method of application
   of a law is fair, and substantive due process deals with whether
   the result is fair. While distinct in theory, these due process
   claims sometimes merge in judicial analysis. (28)

After the following brief survey of equal protection and procedural due process violations in the land-use context, this Comment will concentrate solely on the claim of violation of substantive due process in land-use cases.

1. Violation of the Equal Protection Clause of the Fourteenth Amendment

Section 1983 can be the basis for a claim of violation of the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause "requires fairness in the application of government regulation." (29) Unlike the Due Process Clause, which applies to property, the Equal Protection Clause applies to persons. (30) There are three standards of review in equal protection cases. First, suspect classifications (such as race) and fundamental constitutional interests (such as free speech) invoke strict scrutiny review of a land-use decision (31) and must be justified by a compelling government interest. (32) Second, discrimination based on a particular characteristic (such as age or gender) is reviewed with mid-level, intermediate scrutiny. (33) Finally, claims based on economic interests in land are reviewed under the liberal rational relationship standard that only requires the government "to show some 'rational basis' for its regulation, aided by applying a presumption of constitutionality." (34)

2. Violation of Procedural Due Process Rights

Under the Due Process Clause of the Fourteenth Amendment, landowners have a right to both procedural and substantive due process in the application process. A claim of violation of procedural due process involves strictly procedural issues, which are often not well-developed under state law. (35) Such procedural violations include a municipality's failure to serve proper notice or failure to have a public hearing--each can be fatal to a zoning board's decision. (36) Beyond this basic rule, the rights to a specific procedure are limited by whether the decision maker is considered to have made a legislative or an administrative decision. For example, in the area of rezoning, if the decision is considered to have been legislative, there are no requirements for adequacy of hearing, but if the decision is considered administrative, presentation of evidence and cross examination may be required. (37) Problems that often prevent success for a landowner on a procedural due process claim include a presumption that the local board performed its duties adequately and a requirement that the landowner object to procedural violations early in the process. (38) Also, the Supreme Court has adopted complicated rules for section 1983 procedural due process actions that often result in barring these suits. (39) Basically, these rules prevent a claim of procedural due process violations in federal court if there are state procedures available to remedy the violation. (40)

3. Violation of Substantive Due Process Rights

As stated above, substantive due process refers to the Fourteenth Amendment's prohibition of any government action that deprives "any person of life, liberty, or property, without due process of law." (41) The substantive component of the Due Process Clause of the Fourteenth Amendment "bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." (42) This substantive component of the Due Process Clause is less straightforward than its procedural counterpart. Substantive due process "grew out of natural law theories of the 17th and 18th centuries where all men were thought to be possessed of certain fundamental rights that no government should infringe." (43) In Daniels v. Williams, (44) the Supreme Court affirmed that the Due Process Clause contains a substantive component which bars arbitrary government action, "regardless of the fairness of the procedures used to implement them." (45) Substantive due process cases are difficult and interesting because the standard of review for government behavior is unclear. This has led to wide variation among the circuit courts. Federal courts obviously do not want to review every denial of every local land-use decision, but there must be a means to litigate those that are the most problematic.

Substantive due process requires that all government actions serve a legitimate governmental purpose. The exercise of the government's police power is limited to promoting the health, safety, morals, and general welfare of its residents by "rational means." (46) Courts disagree as to a landowner's rights to a substantive due process claim in federal court. Some courts hold that when the government, in its discretion, decides against a landowner, the principal remedy is to appeal to state court to either seek a reversal or to pursue a takings or substantive due process claim. (47) Such a landowner cannot pursue federal constitutional claims of a due process violation because the landowner has no property right to the approval, since the government decision is discretionary, and thus does not confer or involve a vested property right. (48) The landowner has only secured a vested right, or entitlement, when the municipality has "a mandatory duty to issue the approval, such as a building permit." (49) The rule created by this line of authority will be referred to as the "entitlement test." (50) The negative effect of this rule is that "a municipality may prevent the creation of an entitlement simply by making its review process discretionary. The entitlement rule thus has the effect of keeping most as-applied substantive due process cases out of court." (51)

Landowners have relied on substantive due process claims in the face of arguably irrational land-use decisions that do not amount to a taking. (52) Unfortunately for these landowners, the entitlement test provides that "as the degree of discretion that can be exercised by a government decisionmaking body increases, the less likely it is that [the landowner] will be deemed to have any vested 'property interest' to protect, regardless of how arbitrarily that discretion is exercised in a particular case." (53) The effect of the entitlement test in the various jurisdictions is explored in more detail below. Other courts disagree and instead claim that when a land-use decision is challenged as applied, the substantive due process claim should be fully applicable and not limited by the entitlement analysis above. (54)

When a substantive due process claim does successfully arrive in federal court, the plaintiff will claim that the regulation, decision, or action is arbitrary and does not have a legitimate government purpose--namely, it does not protect the public health, safety, morals, or general welfare. (55) These claims are further classified as either challenging the regulation facially or as applied. (56)

The task, as will be discussed at length, is to find a consistent standard for reviewing claims of violation of substantive due process. As stated, the circuits vary greatly in their treatment of substantive due process violations in the land-use context. This standard must be one that cannot simply be placed on the claim as a "label" acting as a free ticket to federal court, and must, for reasons of judicial efficiency, prevent federal courts from becoming a "zoning board of appeals." (57)

D. The Unique Land-Use Context

A particularized standard of review in claims of substantive due process violations in the land-use context is necessary to recognize the importance and uniqueness of land-use cases. Land ownership has long been recognized as an important and inalienable right. (58) The evidence of this long-standing belief is found throughout property law--one of the only areas of law in which rules, traditions, and even specific vocabulary has lasted through the ages. (59) All lawyers and landowners are intimately familiar with the "bundle of sticks" that make up property rights--the ability to transfer; exclude or include; develop; and use, occupy, and possess the land--and the lengths to which landowners, lawyers, and government will go to preserve the sanctity of that bundle of sticks.

By subjecting claims of violation of substantive due process in the land-use context to the same standard of review for substantive due process claims in criminal cases, courts disregard the uniqueness of the land-use context. Substantive due process claims are landowners' attempts to assert the importance and immutability of their right to use their land as they see fit. In addition, these cases represent the intersection between an individual's desire to use her land in a certain way, and the surrounding community members' opposition to her proposal (or the opposition of the decision makers who seek to protect the surrounding members of the community).

It is beyond the scope of this analysis to discuss the myriad perspectives on the importance of land ownership and the rights appurtenant to it. However, recognition of the importance of land ownership and the rights that accompany it is the force behind the argument that land-use cases must be treated in their own unique context, rather than as another variation on the problem of substantive due process rights.

E. The Voice of the Supreme Court in the Substantive Due Process Realm

1. Substantive Due Process and Executive Conduct that "Shocks the Conscience"

In County of Sacramento v. Lewis, the parents of a motorcyclist who was killed in a high speed police chase brought suit against the county, the sheriff's department, and a deputy, claiming violation of the fundamental right to life under section 1983. (60) In its discussion of its standard of review for the substantive due process claim, the Supreme Court first summarized that the core concept of substantive due process is protection against arbitrary action of the government. (61) It then distinguished between substantive due process protection in the government's legislative capacity (62) and its executive capacity. (63) The Court detailed at length its prior precedent that only the most egregious and arbitrary executive conduct that shocks the conscience could be deemed a constitutional violation. (64) It went on to describe behavior that is most likely violative of substantive due process as conduct "intended to injure in some way unjustifiable by any government interest.... 'Historically this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.'" (65)

Despite determining that the only appropriate standard for a substantive due process claim is that the executive conduct is so inappropriate that it shocks the conscience, the Court was careful to clarify that the rules of due process cannot mechanically be applied in all areas. (66) The Court explicitly affirmed that the application of due process "is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case." (67) This clarification was a deliberate recognition that due process spans many areas of law and cannot be applied mechanically in all situations.

2. The Supreme Court's Recognition of a Landowner's Right to Substantive Due Process Protection

Lewis was not a land-use case and had nothing to do with land use; rather, it involved a death resulting from a police chase. The Supreme Court has not yet decided a land-use dispute in which a landowner claims violation of substantive due process rights under section 1983.

However, in Village of Arlington Heights v. Metropolitan Housing Development Corp. (Arlington Heights), (68) the Court recognized that landowners have a substantive due process right "to be free of arbitrary or irrational zoning actions." (69) In Arlington Heights the context was an alleged zoning refusal based on race. The Court's recognition of a right to due process was part of its justification for granting the plaintiff standing. (70) This standard was also used by the Supreme Court in its landmark decision in Village of Euclid v. Ambler Realty Co. (Euclid), in which the Court held that zoning regulations will survive challenges based on substantive due process violations unless they are "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare." (71) This decision was re-affirmed in Nectow v. City of Cambridge. (72)

III. THE THIRD CIRCUIT'S DECISION IN UNITED ARTISTS

Before the decision in United Artists, discussed at length below, the Third Circuit had a long history of using an "improper motive" standard of review for land-use cases in which the landowner claimed a violation of her substantive due process rights. This standard was explained in Judge Cowen's decision in Bello v. Walker. (73) Not surprisingly, Judge Cowen's dissent in United Artists mirrors this view. (74) In Bello, a land developer's petition for a building permit was denied by the municipality. First, Judge Cowen pointed out the distinction that only deliberate decisions of government officials are protected by the guarantee of due process. (75) Judge Cowen followed Third Circuit precedent that the plaintiff must show the land-use regulation was arbitrary or irrational. (76) However, Judge Cowen declined to define the "outer limits of the showing necessary to demonstrate that a governmental action was arbitrary, irrational, or tainted by improper motive." (77) In deciding on this "improper motive" standard of review, Judge Cowen explicitly stated that the Third Circuit was following the Fourth Circuit's standard described in Scott v. Greenville County, (78) in which a city council's interference with a building permit decision was motivated by lack of impartiality. (79) Judge Cowen also explicitly dismissed the more strict "irrational" standard used by the First Circuit in Chiplin Enterprises v. City of Lebanon, (80) in which a denial of a permit based on an improper motive was classified as only a matter of local concern. (81)

A. The United Artists Decisions and the Adoption era Strict Standard of Review

The Third Circuit's decision in United Artists (82) replaced its prior standard of review in land-use cases in which a landowner claims violation of substantive due process under section 1983 by abandoning the "improper motive" standard and adopting the "shocks the conscience" standard. (83) In United Artists, United Artists Theatre Circuit, Inc. (UA), the operator of a popular movie theater chain, applied for development approval from Warrington Township, Pennsylvania to construct and operate a multiplex theater. A year later, Regal Cinemas (Regal), a competitor, sought approval for a similar theater complex on an adjacent plot of land. (84) UA claimed that Warrington allowed Regal's application to pass through the land development process quickly and without legitimate review while subjecting UA's application to "unjustifiable scrutiny." (85)

The Warrington Township Board of Supervisors evaluates all proposals for development to ensure compliance with the various zoning and land development ordinances. The review process in Warrington consists of a preliminary approval phase and a final approval phase. (86) Each phase consists of a review by the Township Engineer and Township Planning Commission, followed by a vote on whether to grant the approval. (87)

UA claimed that Warrington was motivated by a $100,000 impact fee that Regal agreed to pay annually to the city. (88) UA refused to make this payment and claimed this refusal was the impetus for the deliberate delay of its application. (89) The Board granted preliminary approval to Regal one month after its application was submitted and granted final approval three months later. (90) In contrast, UA was not granted preliminary approval until 14 months after its application was submitted. The application for final approval was then tabled by Warrington at three consecutive Board meetings--each time coupled with a request for the impact fee. (91)

UA was eventually granted final approval 20 months after submitting its application and only after guaranteeing that Warrington would receive $25,000 in revenue annually from the project. (92) UA claimed the terms of the final approval were changed illegally to include terms that it had not approved. (93) Regal successfully completed its theater; UA never built its theater. (94)

In the district court proceeding, UA claimed violation of its procedural and substantive due process rights to property by individual members of the Board. Warrington was granted summary judgment on UA's procedural due process claim, but was denied summary judgment on the substantive due process claim. (95)

The individual defendants' first appeal to the Third Circuit in United I only put at issue the test for qualified immunity used by the district court. (96) At oral argument, the court raised a significant issue: "whether the 'shocks the conscience' standard announced by the Supreme Court of the United States in [Lewis] is applicable to substantive due process claims like the one at issue here." (97) The court declined to address this question and remanded to the district court on the qualified immunity issue to determine whether each individual defendant had a valid defense of qualified immunity against the plaintiffs challenges. (98)

Back in the district court for the remand in United II, the individual Board members were denied their motions for summary judgment based on qualified immunity. (99) As part of the qualified immunity test, the district court addressed the issue of whether Warrington had violated UA's right to substantive due process. The court stated,

   To establish a violation of substantive due process under 42 U.S.C.
   [section] 1983, UA must demonstrate it was deprived of a protected
   property interest in property by the actions of a government official
   and that the actions of the official were either (1) not rationally
   related to a legitimate government interest or (2) motivated by bias,
   bad faith, or improper motives. (100)

Then, in a footnote, the court recognized that the issue of standard of review had been raised during oral argument at the previous appellate hearing and supported its continued use of the "improper motive" standard of review. (101) First, the court found few differences between the "improper motive" standard and the "shocks the conscience" standard used in Lewis. (102) The Court found that both standards were used to find constitutionally improper action only in the most inappropriate or egregious circumstances and equated the two standards, stating, "This Court believes that arbitrary use of power by a governmental official for economic or political gain would similarly shock the conscience." (103) Second, the court recognized that the Third Circuit had continued to use its "improper motive" standard in land-use disputes after the Supreme Court decided Lewis, (104) the criminal case involving a police chase and the resulting death of a motorcycle passenger whose parents claimed a substantive due process violation of the fundamental right to life. (105)

After the district court denied the individual defendants' motions for summary judgment on qualified immunity, they once again appealed to the Third Circuit. (106) After deciding that the "law-of-the-case doctrine" (107) did not preclude its decision-making ability in this case, the Third Circuit went on to determine the appropriate standard of review to apply for substantive due process claims. (108) The Third Circuit repeatedly quoted the contention in Lewis (109) that due process protects against only the most egregious actions by executive officials in their official conduct that shocks the conscience. (110) The court recognized that this standard varies based on the factual context of the particular case. (111) Then, in one fell swoop, the court dismissed UA's argument that the less demanding "improper motive" test should continue to be Third Circuit law as indicated by precedent, overruled its "improper motive" test originating in Bello v. Walker, (112) and disagreed with the district court's analysis. The court stated,

   These cases ... cannot be reconciled with Lewis's explanation of
   substantive due process analysis. Instead of demanding
   conscience-shocking conduct, the Bello line of cases endorses a much
   less demanding "improper motive" test for governmental behavior. The
   District Court opined that there are "few differences between the
   shocks the conscience standard and the improper motive standard," we
   must respectfully disagree ... The "shocks the conscience" standard
   encompasses "only the most egregious official conduct." In ordinary
   parlance, the term "improper" sweeps much more broadly, and neither
   Bello nor the cases that it spawned ever suggested that conduct
   could be "improper" only if it shocked the conscience. (113)

The court also dismissed the inconsistency of this decision with its decision in Woodwind Estates v. Gretkowski, (114) a land-use case decided after Lewis, but still utilizing the "improper motive" standard. (115) Since neither the Woodwind Estates opinion nor its parties' briefs made any mention of Lewis, that case apparently did not preclude the court from changing its standard of review later in the United Artists decision. (116)

The court claimed that there was no reason that cases involving land-use disputes should be exempt from the Lewis standard--since the standard had been applied in other contexts (including civil conspiracy, excessive force, and child custody), land-use cases should not be treated any differently. (117) The court further supported this blind application of the "shocks the conscience" standard of review by noting that it prevents the court from playing the role of a zoning board of appeals. (118)

B. The Dissenting Opinions in United Artists

1. Judge Cowen's Dissent

Circuit Judge Cowen strongly dissented from the majority opinion in United Artists, using the Supreme Court's language in Lewis to support his decision. He began by disagreeing that the "shocks the conscience" standard was the only appropriate standard of review in the land-use context. (119) He then outlined the problems he saw with the majority opinion, including the majority's "misguided reliance" (120) on the Lewis opinion, the majority's disregard of its precedent in using the "improper motive" test in the land-use context, and the mistake of treating all substantive due process cases in the same way. These points strongly support the need for a standard of review that is unique to the issues that arise in the land-use context and show the need for a definitive opinion from the Supreme Court on this issue.

First, Judge Cowen pointed out the obvious factual difference between Lewis and United Artists and the fact that the Lewis Court was not presented with a choice between the "improper motive" and "shocks the conscience" standards of review in the context of a land-use decision. (121) In addition, Judge Cowen pointed out that the Supreme Court's stated reason for its decision to grant certiorari in the Lewis case, which was just about as narrow as possible, was "to resolve a conflict among the circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case." (122) This very narrow description illustrates that the Supreme Court was not planning on making an across-the-board decision regarding substantive due process and the proper standard of review in all types of section 1983 cases.

Second, Judge Cowen listed the numerous cases in which the Third Circuit had established and continuously reaffirmed its "improper motive" standard of review. (123) Furthermore, he reaffirmed the district court's contention that the Third Circuit continued to apply the "improper motive" standard after Lewis had been decided. (124) He then weakened the majority's reliance on the fact that the Woodwind Estates court made no mention of Lewis (125) by citing other Third Circuit cases that mention Lewis explicitly, (126) including Nicolas v. Pennsylvania State University (127) and Khodara Environmental, Inc. ex rel. Eagle Environmental, L.P. v. Beckman (Khodara). (128) He pointed out that in Khodara, the court "cites Lewis in the same paragraph in which it recognizes 'improper motive' as a valid Due Process standard." (129)

Finally, Judge Cowen pointed out that it is "unwise" to toss "every substantive Due Process egg into the nebulous and highly subjective 'shocks the conscience' basket." (130) Judge Cowen claimed that this leaves an opening for intentional abuses of executive authority by those who hold local office. (131) He went on to assert the appropriateness of the "shocks the conscience" standard in a police chase case involving police misconduct that "tend[s] to stir our emotions and yield immediate reaction," (133) but argued that it was "less appropriate, and does not translate well, to the more mundane world of local land-use decisions, where lifeless property interests (as opposed to bodily invasions) are involved." (133) Judge Cowen argues that it is simply inappropriate to apply such an emotionally charged standard to land-use cases--"[i]t is the jurisprudential equivalent of a square peg in a round hole." (134) The "improper motive" standard, on the other hand, is more appropriate to deal with the "intentional and illegal denial of a building permit" (135) because it deals not with emotions, but the with legitimacy of intentions and motives of officials.

These statements are a recognition of the uniqueness of land-use claims and the issues involved in these claims--a recognition of the well-defined bundle of sticks known as property rights. (136) Although land-use decisions may not be highly charged with emotions and often involve only one or a few individuals, they certainly have constitutional dimension and are worthy of a standard of review with an appropriate scope. Although most land-use decisions are local in nature, they must "necessarily assume constitutional dimension when the calculated, intentional and deliberate abuse of government power is at hand." (137) Judge Cowen went so far as to say that the majority's decision will cause "confusion and potential for disparate results" (138) and "will haunt us for years to come" (139) because the opinion assigns land-use claims a completely incompatible standard of review.

2. Judge Nygaard's Dissent

The Third Circuit denied UA's request for a rehearing. (140) In the opinion denying the rehearing, Circuit Judge Nygaard expressed his dissent and agreed with Judge Cowen's dissent. Judge Nygaard's dissent concentrated on the problems he perceived in creating a blanket standard for all substantive due process claims. First, he distinguished those cases in which a state official must act with urgency--basically, where there is no time to deliberate over her actions, such as in the context of a high-speed chase. According to Judge Nygaard, in these situations, the "shocks the conscience" standard is a fixed standard; it is useful because it allows for actions by state actors that are deliberately indifferent when there is simply no time to deliberate. (141) However, he said, "by expanding 'shocks the conscience' beyond these non-deliberative circumstances, the test no longer acts to aid the court in determining whether the potentially unconstitutional action of the state actor is excused." (142) In situations were the official actor has time to deliberate, the appropriate standard is whether the decision eventually arrived at was based on an improper motive, such as money, as was the case in United Artists. (143) Judge Nygaard concluded by recognizing the possible problems of less protection from arbitrary government action as a result of the newly adopted standard of review. (144)

C Past Third Circuit Precedent in Land-Use Cases Under Section 1983

As stated above, before the decision in United Artists, which instituted the "shocks the conscience" standard of review in Third Circuit land-use cases involving a claim of a violation of substantive due process, the Third Circuit had a long history of using an "improper motive" standard of review. (145) The Third Circuit had continued to use this standard even after the Supreme Court's decision in Lewis. For example, in Woodwind Estates, Judge Cowen again utilized the "improper motive" standard. (146) The case involved a denial of development plans for a low-income housing project. Judge Cowen concisely described the essential problem of concern: "On the one hand, federal courts are reluctant to sit as appeal boards for disputes between land developers and a Township's planning body. On the other hand, developers have a due process right to be free from 'arbitrary and irrational zoning actions.'" (147) To show a substantive due process violation, the plaintiff had to establish that she had a valid property interest and that her interest was the victim of an improper government decision. The court first described its method of dealing with the entitlement issue--that is, whether a plaintiff has a valid property interest to which substantive due process protection applies when the denial of that interest is based on a discretionary decision. Here, the court held that

   the holder of a land-use permit has a [protected] property interest
   if a state law or regulation limits the issuing authority's
   discretion to restrict or revoke the permit by requiring that the
   permit issue as a matter of right upon compliance with terms and
   conditions prescribed by the statute or ordinance. (148)

A landowner has a protected property interest in discretionary land-use procedures only when that procedure is limited to a certain extent by statute.

To establish a substantive due process violation, the plaintiff must establish that this property interest was the "victim of a governmental action that was arbitrary, irrational, or tainted by improper motive ... [and] the government's actions in a particular case were in fact motivated by bias, bad faith or improper motive." (149) The plaintiff in Woodwind Estates was able to present evidence that the township did not have a legitimate basis for denying its approval and thus established the liability of the township. (150)

Unfortunately, according to the majority in United Artists, the fact that the Lewis decision was not mentioned in the Woodwind Estates decision (and not even cited in the briefs) meant the court was not precluded from subsequently questioning the "improper motive" standard. The arguments against this narrow view of judicial decision making are adequately expressed in Judge Cowen's dissent to the United Artists decision. (151)

IV. AN OVERVIEW OF THE STANDARD OF REVIEW IN EACH CIRCUIT

A. The Disagreement in General

What follows is a general discussion of the myriad standards of review among the federal circuits in dealing with land-use disputes involving a claim of violation of substantive due process. This analysis is not and does not claim to be exhaustive; it merely serves to highlight the inconsistency among the circuits. This Comment does not address those circuits that lack a body of case law dealing with the issue of what standard of review to use in land-use cases in which a landowner is claiming violation of her substantive due process rights under section 1983.

The concerns running throughout the following decisions and across the federal circuits are precisely those stated above by Judge Cowen and are important enough to repeat: "On the one hand, federal courts are reluctant to sit as appeal boards for disputes between land developers and a Township's planning body. On the other hand, developers have a due process right to be free from 'arbitrary and irrational zoning actions.'" (152) Many landowners may claim that if the city council or zoning board is wrong in denying their applications, they should ipso facto have a valid substantive due process claim under section 1983. On the other hand, most courts and municipalities seem to think that land-use disputes should be either primarily or strictly state issues, which leads to a tendency for courts to tighten their standards, and perhaps move toward a complete bar on local land-use claims in federal courts. The goal should be consistency among the circuits in their standards of review, as well as fairness to both the landowner and the municipal decision-making body. Unfortunately, neither of these goals has been achieved because the Supreme Court has not dealt directly with a substantive due process claim in the land-use context.

B. The "Irrational" Standard of Review: The First, Seventh, and Eighth Circuits

1. The First Circuit

The First Circuit has long advocated a strict standard of review in land-use cases and has given great deference to local land-use decisions and the state's ability to resolve land-use disputes. The court expressed its concerns in Creative Environments, Inc. v. Estabrook. (153) Stressing that federal courts are not zoning boards of appeal, the court stated that the plaintiff's due process violation claim regarding the planning board's disapproval of its subdivision plans was "too typical of the run of the mill dispute between a developer and a town planning agency." (154) The court also stated "property is not denied without due process simply because a local planning board rejects a proposed development for erroneous reasons or makes demands which arguably exceed its authority under the relevant state statutes." (155)

The next year, the First Circuit confirmed this holding when it decided Chiplin Enterprises, Inc. v. City of Lebanon, (156) in which a landowner filed suit against the City for the rejection of a building permit application. The court simply found that there was no federal jurisdiction in the matter because no specific constitutional right was violated; rather, this land-use dispute was a local matter properly and fully reviewable in the state courts. (157) The court determined that an improper motive was not enough to establish violation of due process without alleging the deprivation of a specific constitutional right. (158) These decisions signal that for a land-use decision to be actionable under a substantive due process claim, the decision must be more than merely wrong--it must be irrational. (159) The First Circuit has even gone so far as to hold that there is no violation of substantive due process even when these claims are based on purposeful and malicious obstruction of the plaintiff's development plans. (160) In Cloutier v. Town of Epping, the court held that even the "long list of harassing actions" (including claims of invalid and unenforceable zoning, violation of due process and equal protection through the town's reliance on invalid laws, malicious delay tactics, and deprivation of property without due process causing delay and expense) did not reveal "the type of egregious behavior that might violate the due process clause." (161)

Evidently, due process claims in the First Circuit cannot be resolved at the federal level because such decisions have not been found to reach the degree of irrationality and egregiousness necessary to allege a constitutional violation.

2. The Seventh Circuit

The Seventh Circuit is similar to the First and Fifth (162) Circuits in that it strongly disapproves of federal court review of local zoning matters. (163) Like the First Circuit, the Seventh Circuit uses a strict "irrationality" standard of review; like the Fifth Circuit, it holds that all zoning decisions are legislative in nature. (164)

In Burrell v. City of Kankakee, (165) a Fair Housing Act (166) case with a substantive due process claim, the Seventh Circuit held that the plaintiffs must allege and prove that the decision was "arbitrary and unreasonable bearing no substantial relationship to the public health, safety, or welfare." (167) This language is, of course, the familiar expression of the limit of the state's police power. However, the Seventh Circuit made this standard more strict in Coniston Corp. v. Village of Hoffman Estates, in which the Village rejected a property owners' site plan for a parcel of property. Judge Posner clarified that "by 'arbitrary and unreasonable' in Burrell we meant invidious or irrational." (168) Judge Posner made several strong statements throughout the Coniston opinion expressing his distaste for substantive due process claims in the land-use context. He stated, "No one thinks substantive due process should be interpreted so broadly as to protect landowners against erroneous zoning decisions," (169) and, "This case presents a garden-variety zoning dispute dressed up in the trapping of constitutional law--a sure sign of masquerade being that the plaintiffs do not challenge the constitutionality of the zoning ordinances." (170) Finally, he stressed the local nature of these claims: "Something more is necessary than dissatisfaction with the rejection of a site plan to turn a zoning case into a federal case ... the something more cannot be merely a violation of state (or local) law. A violation of state law is not a denial of due process of law." (171) These statements are the best indications of the court's position on these cases, indicating that the Seventh Circuit would perhaps prefer not to hear these disputes at all.

3. The Eighth Circuit

In Chesterfield Development Corp. v. City of Chesterfield (Chesterfield), (172) a developer brought suit for damages because the City had enforced an invalid zoning plan and ordinance against it. The Eighth Circuit expressly adopted the concurring opinion from Lemke v. Cass County, Nebraska, (173) in which it had left open the question of whether the denial of a zoning permit could give rise to a substantive due process claim. (174) The five concurring judges in Lemke stated, "[S]omething more is required to state a claim than the allegation that a governmental decision is arbitrary, capricious, an abuse of discretion, or otherwise in violation of state law." (175) The concurring judges based their opinion on the First Circuit's decision in Creative Environments, (176) and concluded that substantive due process claims should be "limited to the truly irrational." (177) The Chesterfield court's rationale in adopting this strict standard was a familiar one: a concern that with a less stringent standard, every violation of a state law could become a federal constitutional issue.

C. The Entitlement Rule: The Second and Tenth Circuits

1. The Second Circuit

The Second Circuit refused to grant federal review of a zoning decision on entitlement grounds; because the zoning board's decision was discretionary, the applicant lacked a vested and protected property right. (178) This approach could be described as even more hostile than the First Circuit's refusal to grant jurisdiction, because it does not even recognize that the landowner has any right to the land-use function for which she applied. (179)

The court in RRI Realty Corp. v. Incorporated Village of Southampton justified this strict standard by claiming it was a way to ensure that federal courts do not become zoning boards of appeal nor substitutes for state court review of land-use decisions. (180) However, the court also recognized the weakness in its rationale behind using the entitlement test:

   It is not readily apparent why land regulation cases that involve
   applications to local regulators have applied the ... entitlement
   test to inquire whether an entitlement exists in what has been
   applied for ... instead of simply recognizing the owner's
   indisputable property interest in the land he owns and asking
   whether local government has exceeded the limits of substantive due
   process in regulating the plaintiffs use of this property by denying
   the application arbitrarily and capriciously. (181)

The court applied the entitlement test despite the indication of this oddity because it was committed to following this precedent in land-use regulation cases. (182)

2. The Tenth Circuit

The Tenth Circuit adopted both the entitlement rule as well as the "arbitrary and capricious" standard. In Norton v. Village of Corrales, (183) the court affirmed a zoning commission's denial because the plaintiff landowner had no entitlement to the plat approval, and in the alternative, because the decision was not arbitrary or capricious. (184) First, the court explained that substantive due process guarantees are not triggered if there is no entitlement to a specific property interest; if the commission's decision is at all discretionary, there is no entitlement. (185) The court then went on to say that even if there were a legitimate property interest, the commission's decision was not arbitrary or capricious, which "in this context does not mean simply erroneous." (186) The court added yet another layer to its analysis when it explained that a substantive due process claim could only survive "if the alleged purpose behind the state action has no conceivable rational relationship to the exercise of the state's traditional police power through zoning." (187) This decision is a combination of the strict property test used in the Second Circuit and the "arbitrary and capricious" standard of review used in the Fourth Circuit.

D. The "Arbitrary and Capricious" Standard of Review: The Fourth Circuit

The Fourth Circuit has a long history of using the "arbitrary and capricious" standard of review. (188) In Marks v. City of Chesapeake, (189) a property owner was denied a conditional use permit for the operation of a palmistry. The court found that area residents' religious opposition was the basis for the city council's decision. (190) The parties to the case agreed that "where there is fairly alleged a basis for finding either abuse of discretion or caprice in a zoning administrator's refusal to issue a permit, a Fourteenth Amendment claim is properly stated." (191) The question at issue was only whether the applicant was singled out for adverse treatment. The court held that if the city council's denial of the application was due to an attempt to placate the members of the community who had objected, then it acted arbitrarily and capriciously. (192) In reviewing the facts, the court held that the council members' decision was overly influenced by irrational public pressure based on religious prejudice and was therefore arbitrary and capricious and a violation of substantive due process. (193)

The "arbitrary and capricious" standard of review seems to have a built-in recognition of the different factual circumstances that might occur in a substantive due process case. This allows for recognition of the unique land-use context. Furthermore, it is reminiscent of the Arlington Heights ease in which the Supreme Court expressly recognized a landowner's right to substantive due process protection. (194)

E. The "Rational Basis" Standard of Review: The Fifth and Sixth Circuits

1. The Fifth Circuit

The Fifth Circuit requires that there be a rational basis for the government's decision. (195) In Shelton v. City of College Station, the court avoided the problem of defining the property right in question--and thereby avoided answering the entitlement question--by finding that the zoning board had a rational basis for its zoning decision. (196) This decision also introduced another wrinkle in the complicated and varied landscape of circuit court decisions in the substantive due process land-use context by distinguishing three classifications of land-use decisions: 1) those that are considered legislative, 2) those that are considered adjudicative, and 3) those that are considered administrative. In Shelton, the Fifth Circuit labeled the zoning board's decision-making process as quasi-legislative and thus reviewed it as if it were a legislative process. (197) Under this analysis, a regulatory decision will be reviewed differently depending on how the decision-making process is classified. (198) In a challenge to an adjudicative decision, the facts are determined by a judge or jury and are accepted by the reviewing court; in addition, they are case-specific. (199) On the other hand, in a legislative model, those challenging the decision must convince the reviewing court that the facts on which the decision was based cannot reasonably be conceived as true by the decision maker. (200) This distinction is only recognized by some of the circuits and, unfortunately, does not clarify the standard of review in any respect.

In Shelton, the court reviewed the decision "by the same constitutional standards [it] employ[s] to review statutes enacted by the state legislatures" (201) and held that the "outside limit upon a state's exercise of its police power in zoning decisions is that they must have a rational basis." (202) Furthermore, the majority clearly dismissed the dissent's suggestion of using the "arbitrary and capricious" standard based on a classification of the zoning board as an administrative or quasi-judicial decision maker. (203)

2. The Sixth Circuit

In Pearson v. City of Grand Blanc, (204) the Sixth Circuit adopted the "rational basis" standard of review. (205) In Pearson, a request for rezoning was rejected by the City Council. First, the court made a noble attempt to survey the scope of substantive due process claims and decisions in the land-use context. (206) The court recognized that the precedent was varied--some decisions treated zoning as administrative or adjudicatory, others treated it as legislative and using the "arbitrary and capricious" standard, and others set aside a zoning decision only if it "shocks the conscience." (207)

In its discussion of the legislative-administrative distinction the court stated that generally "[i]t may be safely said that there is no bright line between the legislative and administrative functions." (208) The court reviewed the action first as if it were administrative and then as if it were legislative. First, as an administrative action, the court only allowed for a very narrow scope of review; the plaintiff must show that the agency is guilty of "arbitrary and capricious action in the strict sense, meaning that there is no rational basis for the administrative decision." (209) Because a federal court's review of a state administrative action is very narrow, the decision will "withstand substantive due process attack unless it is not supportable on any rational basis or is willful and unreasoning action without consideration and in disregard of the facts or circumstances of the case." (210) Second, as a legislative action, the standard of review was still whether there was a rational basis for the decision but it also required an inquiry into whether the regulation was rationally related to legitimate state concerns. (211) These state concerns are the standard police power concerns: "public health, safety, morals, or general welfare." (212) The Sixth Circuit thus arrived at the same standard of review whether interpreting the decision as legislative or administrative. Pearson, therefore, illustrates the uselessness of the administrative-legislative distinction.

Finally, it is important to note that the Sixth Circuit also expressed its views regarding the "shocks the conscience" standard. It first stated that applying this standard to any area other than the use of excessive force could be problematic. (213) It weakened this claim by later stating that the "shocks the conscience" standard would be useful in zoning cases as well because it emphasizes the degree of arbitrariness required to set aside a zoning decision. (214) Therefore, the Sixth Circuit has also adopted a very strict standard.

V. THE IDEAL STANDARD AND RECOGNIZING THE UNIQUE LAND-USE CONTEXT

A. A Standard of Review Hierarchy: From Most Strict to Least Strict

The survey above demonstrates that a hierarchy of standards of review exists among the circuit courts. That hierarchy can be summarized from most to least strict:

1) The entitlement rule: This rule effectively bars "as applied" challenges because it does not recognize a property interest in the land-use function for which the landowner applied.

2) The "shocks the conscience" standard: This standard places land-use decision making on the same plane as such egregious conduct as that resulting in loss of life and limb in excessive force and police chase cases.

3) The "irrational" or "invidious and irrational" standard: The most common (used in three circuits), this standard becomes even more strict when combined with Judge Posner's rhetoric from the Seventh Circuit.

4) The "rational basis" standard: This standard requires that the zoning decision have some rational basis. There is potential for a court to interpret the "rational basis" standard of review as its converse, "irrational," and only find a violation of substantive due process if the decision is irrational, thus having no rational basis; this is stricter than merely a rational basis.

5) The "arbitrary and capricious" or "improper motive" standard: These are often discussed as one standard and are a direct outgrowth of the Supreme Court's decision that zoning is constitutional if it is done pursuant to the state's police power. (215) This is the standard recently overruled by the Third Circuit in United Artists.

B. A Potential Route to Agreement: The Need for a Simplified and Intelligent Standard of Review

The circuits have been plagued by a lack of uniformity regarding this issue. This lack of uniformity makes the decision-making process a challenge for each circuit when it addresses this issue. An example of this challenging process is shown in the Sixth Circuit's decision in Pearson, which included an attempt to summarize the views of the various circuits, calling the lack of uniformity "remarkable." (216)

As a practical matter, the variety of standards and decision-making models used by the circuits surely makes drafting an argument for a particular circuit a challenge. In addition to the variety among the circuits, each circuit suffers from internal disagreement as well as continuous indecision resulting in changes to the standards. (217)

In addition, other peripheral issues--the entitlement rule; the legislative, administrative, and quasi-judicial distinction; and policy matters--plague these decisions. These peripheral issues tend to make the case law a mix of vaguely related and familiar-sounding arguments that individually concentrate on any of a number of issues, all apparently dealing with substantive due process claims in the land-use context. Perhaps most troubling is the general applicability of substantive due process to government authority in all areas of regulation, and the often expressed doubt that the entire doctrine itself is legitimate. (218) Also, as mentioned many times already, federal courts are determined not to become zoning boards of appeal and are determined not to open the floodgates to every land-use decision that does not turn out the way the landowner hoped it would.

Taking all these concerns into consideration, a simplified and intelligent standard of review for claims of violation of substantive due process in the land-use context should be imple