Agenda - Planning Commission - 01/03/2019

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November 25, 2018 I Volume 12 I Issue 22 Zoning Bulletin protection rights under the Fourteenth Amendment to the United States Constitution. Among other things, the Fourteenth Amendment provides that government shall not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Here, specifically, the Developers argued that the City Council had "no discretion to deny [the] development plan because [the Developers] had met all guidelines set forth in the ordinances," thus denying their property inter- est in violation of their substantive due process rights under the Fourteenth Amendment. They also argued that their equal protection rights were violated because the City treated their development plan application differ- ently from others similarly situated without any rational basis for the differ- ent treatment, The Developers pointed to another car wash use —Cooper Carwash, which had been approved by the City. The City filed a motion for summary judgment with the district court, asking the court to find there were no material issues of fact and to decide the matter in the City's favor on the law alone. The district court granted the City's motion. The Developers appealed. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Fifth Circuit, first held that the Developers lacked a constitutionally protected property. interest and therefore there was no substantive due process violation by the City. In so holding, the court explained that to prevail on a substantive due pro- cess claim, a plaintiff (such as the Developers here) had to establish that it held a constitutionally protected property right to which the Fourteenth Amendment's due process protection applies. Further, explained the court, "[t]o have a property interest in a benefit" (as claimed here), a plaintiff must "have a legitimate claim of entitlement to it." Importantly, noted the court, "riff the benefit may be granted or denied at the discretion of government of- ficials, it is not an entitlement." Thus, if city council members could "grant or deny [a development plan application] in their discretion," there would be no entitlement to the benefit and, therefore, no protected property right. Here, Da Vinci had argued that the City Council members had no discre- tion to deny the development plan application because it had met all the guidelines set forth in the ordinance. The court, however, found no explicit language in the ordinances requiring, for example, the City Council to grant a development plan when all guidelines are met. The court deteiuiined that even when all guidelines are met, without "explicitly mandatory language" requiring approval when all required guidelines are met, the City Council had discretion to grant or deny the benefit. Accordingly, the court concluded that given that discretion, the Developers did not have a protected property right in the approval of the development plan, and, without a protected prop- erty interest, there could be no substantive due process violation. The court also held that the Developers' Equal Protection claim failed. The court explained that in order to prevail on the claim, the Developers had 8 © 2018 Thomson Reuters