Agenda - Planning Commission - 11/06/2014

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September 25, 2014 I Volume 8 I Issue 18 Zoning Bulletin permits "at least until after March 1, 2011" was meant to thwart the wind farm project, making the decision "an arbitrary and egregious abuse of [the Board's] authority" that "shock[ed] the conscience" and cost CEnergy a contract worth more than $7 million in profits. The district court concluded that CEnergy did not have a viable substantive due process claim because: (1) the Town Board's decision to delay action on the building permit applications in the face of strong pub- lic opposition did not "shock the conscience" as required to state a substantive due process claim; and (2) CEnergy failed to use available state law mechanisms for forcing action on its permit applications in that it failed to pursue building permits under a local ordinance that governed the building -permit application process, and failed to ask a state court for a writ of mandamus to force action on its requests for building permits. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Seventh Circuit, held that CEnergy's substantive due process claim failed because: (1) the Town Board's actions were not arbitrary in the constitutional sense; and (2) CEnergy did not seek recourse under state law as required to sustain a substantive due process claim. In so holding, the court explained that, in order for a land -use decision to be unconstitutional due to arbitrariness, as alleged here by CEnergy, it must "shock the conscience" to the point of being "egregious." Here the court found that the Town Board's decision to delay action on CEnergy's building peiiiiit requests were not arbitrary in the constitutional sense because popular opposition to a proposed land development plan was a rational and legitimate reason for a legislative body to delay making a decision. Moreover, the court found that even if the Board's treatment of the building permit applications had been arbitrary in the constitutional sense, CEnergy still would have failed to state a substantive due process claim. The court said CEnergy could not state a substantive due process claim based on a state -created property right because it ignored potential state law remedies of: (1) using the standard process for applying for a building permit to the Town Zoning Administrator as set out in the Town's Zoning Ordinance (under which there were procedural time frames in which the Town Zoning Administrator and the Board of Ap- peals were required to make decisions); and/or (2) seeking a writ of mandamus, under state law, to force the Town to act on the permit applications. See also: City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation, 538 U.S. 188, 123 S. Ct. 1389, 155 L. Ed. 2d 349 (2003). See also: River Park, Inc. v. City of Highland Park, 23 F.3d 164 (7th Cir. 1994). See also: Bettendorf v. St. Croix County, 631 F.3d 421 (7th Cir. 2011). 4 © 2014 Thomson Reuters