Agenda - Planning Commission - 08/07/2014

Home

June 25, 2014 Volume 8 1 Issue 12 Zoning Bulletin Eleventh Circuit recognized one exception to that general rule: "Where a person's state -created rights are infringed by a `legislative act,' the substan- tive component of the Due Process Clause generally protects that person from arbitrary and irrational governmental action." Here, the court found that the Owners' asserted riparian rights were state - created rights, not fundamental rights. The court further determined that, because the Owners were challenging the Ordinance on its face (rather than contesting a specific zoning or permit decision), they were challenging a legislative act. The court then had to determine whether that legislative act — the Ordinance infringed on the Owners' state -created property rights —thus meeting the exception to the general rule and allowing the Owners' substan- tive due process claims for their nonfundamental, state -created property rights. The court said that the Ordinance would violate substantive due process if the legislative facts on which the classification was apparently based (i.e., the classification and prohibition of development in the Bay Beach Zone) could not reasonably be conceived to be true by the governmental decision maker. Proving such a violation was, said the court, the Owners' burden. The court found that the Owners failed to meet that burden and that "highly deferential" standard. The court concluded that the Owners could not show that the Ordinance lacked a rational basis. Rather, protection of seagrass and aesthetic preservation were rationales for the Ordinance, found the court. The fact that the Owners did not agree with the "wisdom" or "fairness" of those rationales was "simply not the test under a rational basis review," concluded the court. See also: Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876, 35 Envtl. L. Rep. 20106 (2005). See also: Lewis v. Brown, 409 F.3d 1271 (11 th Cir. 2005). Case Note: Under prior precedence, the Eleventh Circuit had already recognized property rights - based substantive due process claims based on legislative acts. ariance— oning ordinance rezones property allowing limited uses Property owners claim ordinance is confiscatory and they are entitled to a variance Citation: Novicki v. Zoning Hearing Bd. of Borough of Monaca, 2014 WL 1795244 (Pa. Comm,. Ct. 2014) PENNSYLVANIA (05/06/14)—This case addressed the issue of whether a zoning ordinance, as applied to a specific property, was confiscatory and cre- ated an unnecessary hardship that was non -self-inflicted, such that the prop- erty owners were entitled to a variance. • The Background/Facts: Henry and Barbara Nowicki (the "Nowickis") 4 c' 2014 Thomson Reuters