Real Property, Trust and Estate Law Journal

Litigating Land Use Cases in Federal Court: A Substantive Due Process Primer

by Daniel R. Mandelker

Daniel R. Mandelker, Stamper Professor of Law, Washington University in Saint Louis. I would like to thank Dorie Bertram, Director of Public Services and Lecturer in Law, and Kathie Molyneaux, Interlibrary Loan Assistant, Access Services, for their help in finding resources, and Andrea Donze and Beverly Owens for their editorial assistance. Michael Berger, Robert Kuehn, Rosalie Levinson, and Toni Massaro read earlier versions of this Article and offered helpful comments. I would also like to thank Dean Nancy Staudt and the law school for their financial support.

Editor’s Synopsis:

This Article argues that land use plaintiffs should have access to federal courts when they can claim that abusive governmental decisions violate their substantive due process rights. Traditionally, land use plaintiffs have faced many hurdles in getting their cases into federal court. This Article shows how courts can provide effective constitutional relief in land use cases involving governmental abuse.

This Article discusses major hurdles that land use plaintiffs traditionally face when bringing a case in federal court, including the entitlement rule, the ripeness barrier, and Graham preemption. The entitlement rule means that a plaintiff must have an entitlement to property before she can bring a substantive due process claim. The ripeness barrier requires a plaintiff in a takings case to obtain a final decision from the local government before bringing a takings claim in federal court. Graham preemption prevents a court from hearing a substantive due process case if the case could have been brought under a more specific constitutional clause, such as the takings clause.

This Article concludes with a discussion of the appropriate standard of review that should be applied in land use substantive due process cases. The Article rejects the shocks the conscious standard applied by the Supreme Court in influential Fourth Amendment cases as the appropriate standard and goes on to discuss the inconsistency of standards applied within circuits to other substantive due process cases. The Article ends with an analysis of the “arbitrary conduct” standard of judicial review applied when municipalities engaged in abusive conduct in land use cases.

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