Agenda - Planning Commission - 01/05/2017

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November 25, 2016 1 Volume 10 1 Issue 22 Zoning Bulletin some kind of notice and some kind of hearing before being deprived of prop- erty rights, while substantive due process rights ensure that,regardless of the fairness of the procedures, certain egregious governmental actions are prohibited. In the first case, the district court dismissed the substantive due process claim. Finding no material issues of fact and dispute and deciding the matter on the law alone, the court also granted summary judgment in favor of the t Board on the procedural due process claim.In the second case case,the district court dismissed both the procedural and substantive due process claims. In both cases,the landowners appealed.Those appeals were consolidated. DECISION:Judgments of District Courts affirmed. The United States Court of Appeals, Tenth Circuit, held that the Board's adoption of the Wolf Documents as the official zoning regulations and maps was a legislative act, such that the Due Process Clause did not apply and no public hearings were required prior to the adoption.The court also held that the allegations of Board misconduct in covering-up and misrepresenting the Wolf Documents was not so egregious as to violate substantive due process rights. In so holding,the court explained that violation of state procedural require- ments (i.e.,here, the Colorado statutory procedural requirements for adoption of zoning ordinances) "does not in itself deny federal constitutional due process."The board recognized that when a municipal board's actions have a limited focus, affecting a few people or properties and based on grounds that are individually assessed, it may be an adjudicative action that is subject to procedural due process requirements of notice and hearing. However, the court explained that the adoption of a general zoning ordinance, though felt differently by specific landowners, is a legislative action, involving the discretionary implementation of prospective policies, which is not subject to due process requirements of notice and hearing. In summary, the court concluded that the Board's adoption of the Wolf Documents was a legislative act for which the federal Constitution did not afford the landowners'right to a hearing. With regard to the substantive due process claims, the court found these also failed because the allegations of Board misconduct did not rise to a level that"shocks the conscience of federal judges."The court explained that"only the most egregious official conduct can be said to be arbitrary [and thus viola- tive of substantive due process rights]in the constitutional sense.""Intention- ally or recklessly causing injury through the abuse or misuse of governmental power is not enough,"said the court.Rather,the actions"must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking."Here,the court found no allegation of corruption, self-dealing, or bias against any protected group or activity.While the land- owners alleged"clandestine activity and a cover-up," the transcript of a 1997 public Board meeting showed the Board publicly disclosed the loss of the zon- ing map. The court concluded that the allegations against the Board simply did not arise to actions that"shock the conscience," and thus did not violate the landowners'substantive due process rights. " See also:Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 36 4 ©2016 Thomson Reuters Iz i r r'++ l; 3? fp P ct I'