Agenda - Planning Commission - 01/04/2018

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December 10, 2017 I Volume 11 I Issue 23 Zoning Bulletin satisfy all of the conditions on its site plan approval, and it didn't apply for a building permit. After passage of the zoning amendment prohibiting self -storage facilities within 250 feet of schools, Siena was unable to build the ezStorage facility on its property. Siena sued the City. It alleged, among other things, that the zon- ing amendment violated the substantive due process guarantee of the Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment provides, in relevant part, that no state shall "deprive any person of life, liberty, or property, without due process of law." Siena maintained that it had a protected property interest in using its property to develop an ezStor- age facility. The district court dismissed Siena's due process claim. The court held that Siena lacked a protected property interest in the ezStorage facility construc- tion because it had not applied for a building permit. Siena appealed. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Fourth Circuit, held that Siena did not have a vested right in building a self -storage facility that was protected by the Due Process Clause. In so holding, the court explained that to succeed on its substantive due process claim, Siena had to establish: (1) that it possessed a "cognizable prop- erty interest, rooted in state law"; and (2) that the City Council in adopting the zoning amendment deprived it of this property interest in a manner "so far be- yond the outer limits of legitimate governmental action that no process could cure the deficiency." The court determined that Siena "ha[d] not cleared either hurdle." To have a "cognizable property interest," requires a "legitimate claim of entitlement," said the court. Looking at Maryland law, the court found that: "in order to obtain a `vested right' in the existing zoning use which will be constitutionally protected against a subsequent change in the zoning ordinance prohibiting or limiting that use, the owner must (1) obtain a permit or occupancy certificate where required by the applicable ordinance and (2) must proceed under that permit or certificate to exercise it on the land involved so that the neighbor- hood may be advised that the land is being devoted to that use." Here, since Siena had failed to satisfy either of those requirements —in that it never applied for a building permit or satisfied the conditions of its site plan approval for its proposed self -storage facility, the court concluded that it did not have a vested right in the self -storage facility use. Moreover, the court found that "[e]ven if Siena had a property interest here, the enactment of the zoning text amendment would still fall short of a substan- tive due process violation." The court said that state deprivation of a protected property interest violates substantive due process only if it is "so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as to be literally incapable of avoidance by any pre -deprivation procedural protec- tions or of adequate rectification by any post -deprivation state remedies." In other words, the state action must be "conscience shocking, in a constitutional sense," lacking any "conceivable rational relationship to the exercise of the 6 ©2017 Thomson Reuters