Agenda - Planning Commission - 08/02/2012

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June 25, 2012 1 Volume 6 1 No. 12 Zoning Bulletin situation such as Bowlby's, however, due process demands more than no hearing at all." The district court had held that Bowlby "has not yet been denied such process" because her "pre- deprivation hearings are the appeal to the Mayor and Board of Alderman and if necessary, to the circuit court that serves as an appellate court for the decision." Since her "property interest has not been effectively destroyed, as the Mayor and Board of Alderman could theoreti- cally disagree with the Zoning Commission's decision tomor- row," a "[d]eprivation by the state has not yet occurred," concluded the district court. The Fifth Circuit disagreed. It held that the due process injury —the taking without sufficient pro- cess —was complete at the time the process was denied (i.e., when the Board revoked Bowlby's peitnits without allowing her a hearing). In addition, noted the court, exhaustion of state reme- dies is not required before a plaintiff can bring suit under § 1983 for denial of due process. Consequently, concluded the court, Bowlby was not required to go through the appeal process set out in the City Zoning Ordinance in order to state a cognizable procedural due process claim. Because Bowlby was due predepri- vation process, she suffered a due process injury when the City revoked her business permits, notwithstanding the fact that they may have been reinstated at some later date had she appealed the Board's decision, said the court. The Fifth Circuit reversed the district court's dismissal of Bowlby's procedural due process claim. See also: Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). See also: Williamson County Regional Planning Com'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985). Case Note: In its holding, the court noted that even due process violations with de minimis damages are actionable. Case Note: Bowlby had also brought a claim for an equal protection violation. The court found that she failed to properly state the claim because: she 8 © 2012 Thomson Reuters