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has perhaps added a measure of stroh§th to that
<br />'diluted constitutional clause' known as substan-
<br />tive clue process." But 81aesser added that sub-
<br />stantive due process claims are not easy to bring
<br />because of another test that federal courts
<br />employ: "This test, derived from an employment
<br />law case, states that before a court may reach
<br />the allege, ed substantive due process violation, a
<br />landowner denied an approval must first prove a
<br />le§itimate claim of 'entitlement' to that approval
<br />so as to establish a protected property interest.
<br />This test has created an almost insurmountable
<br />threshold for plaintiffs whenever land-use
<br />approvals are deemed discretionary. Until the
<br />Supreme Court clarifies or eliminates this test,
<br />substumive due process ~ill never operate at i:uli
<br />stren~h as a remedy for arbitrary or irrational
<br />re§ulation by government."
<br />
<br /> What remains to be seen, says Alan
<br />Weinstein, professor of law at Cleveland State
<br />University, "is whether Lingle will apply a
<br />brake to state courts, such as those in Ohio,
<br />which all too often second-guess the substan-
<br />Iive correctness of local government's land-
<br />use prairies in 'as applied' challenges. While'
<br />there must still be some ream for such chal-
<br />len.~es in states like Ohio, where legislative
<br />land-use decisions can be, and routinely are,
<br />overturned by popular referendum, hopefully,
<br />Lingle has sent a clear signal that courts
<br />should defer to the legislative policy judg-
<br />ments embodied in land-use re§ulations."
<br /> Jesse I. Richardson Jr., an associate pro-
<br />fessor in Urban Affairs and P~annin§ at Virginia
<br />Tech in Blacksburg, believes that Lingl~'s impli-
<br />cations "will be slim to none. The ease may
<br />foretell of added validity of substantive due
<br />process claims, but subsiantive due process
<br />has been slowly gainin~ steam for years now."
<br /> Ben ack^er, an attorney with Berns,
<br />Ockner & Greenber§er in Cleveland, Ohio, con-
<br />tends that Ling~e "should not have a significant
<br />impact on takings claims arising from a city's
<br />unconstitutional application of zoning re§ula-
<br />lions to a particular property, Where a court
<br />determiues that the prohibition of a property
<br />owner's proposed use of property fails to sub-
<br />stantiaHy advance a legitimate governmental
<br />interest (a 'substantive due process taking'),
<br />the court will be hard-pressed to determine that
<br />the property owner did not have a reasonable
<br />investment-backed expectation in pursuing thaf
<br />use of the property." Ockner questions whether
<br />the Court"s comments in Lingle regarding the
<br />proper staoda~d of review by trial courts in faciat
<br />
<br /> constitutional challenges of municipal ordi-
<br /> nances will cause confusion over the proper
<br /> standard of review in applied constitu'tionai
<br /> challenges. "Nowhere in Lingle does the Court
<br /> differentiate between the two standards of
<br /> review, and it may not be clear that Lingle was a
<br /> facial challenge, as was Euclid v. Ambler Realty
<br /> Company [the t926 U.S. Supreme Court deci-
<br /> sion that first upheld the constitutionality of
<br /> zoning] upon which the Court relied. It is clear
<br /> from Euclid that zoning regulations which are
<br /> constitutional on their ~ace may be unconstitu-
<br /> tional as applied to specific property under cer-
<br /> lain circumstances, and that a heightened level
<br /> of scrutiny is required in an applied challenge."
<br /> Michael Ber§er, a partner with Ma^att,
<br />Phelps & Phillips in Los Angeles, who has
<br />argued several major takings cases before the
<br />Supreme Court, is also concerned about the
<br />standard of review of government action on
<br />due process grounds in the post-Ling{e envi-
<br />ronment. "If the standard is an 'anything goes,'
<br />or an affirmance if any rationale can be con-
<br />lured by a court after the fact to support the
<br />regulation, then the government will benefit
<br />from a laissez-faire type of review." Like Nancy
<br />Stroud, he notes that some federal courts of
<br />appeal have adopted a "shocks the con-
<br />science" test for due process violations, draw-
<br />lng from extreme police misconduct cases that
<br />involve involuntary stomach pumping and
<br />high-speed chases through residential areas.
<br />"gut is that what will, or should, happen in
<br />~and regulation cases?" Berger asks. "Given
<br />that the land-use process typically involves
<br />lenBthy studies and multiple public hearings
<br />and decisions, ~ more apt model would exam-
<br />ine the decision and judge it against the
<br />Constitution on a less 'shockin~' level,"
<br /> Concerned about how the decision might
<br />impact the planning profession, as well as state
<br />and local governments, the APA Amicus Curiae
<br />Committee filed an amicus brief drafted by
<br />Professor Tom Roberts of Wake Forest University
<br />Law School and Edward Sullivan. APA urged the
<br />court to jettison the "substantially advances"
<br />test and argued that courts should not substi-
<br />tute their views of the wisdom or efficacy of
<br />state economic legislation under the guise of
<br />the Takings Clause. APA's brief pointed out, in
<br />part, that "It]he question of the validity of gov-
<br />er^mental action is not a part of the takings
<br />inquiry, and it ought not become so based on
<br />the historical confusion between due process
<br />and takings. The adoption of legislation, partic-
<br />
<br />ularly at the local government level, aided by
<br />the planning process, involves the participation
<br />of all segments of the community working to
<br />define the public interest. Allowing judges to
<br />second guess legislation will undermine the
<br />public's role in the democratic process. Inter-
<br />mediate judicial scrutiny is neither needed nor
<br />justified to protect those who are well repre-
<br />sented in legislative halls."
<br />Stuart Mock, ~AZCP, is a senior research fellow
<br />in APA's research department.
<br />
<br />Editor's Note: Zoning Practice will cover the
<br />entire recent series of four U.S. Supreme
<br />Court cases (Kelo v. City of New London, San
<br />Rerno Hotel v. City and County of San
<br />Francisco, Lingle v. Chevon, and City of
<br />Rancho Palos Verdes v. Abrams) [n the August
<br />issue, addressing various aspects al~ land-use
<br />planning in an article by Lore Lucero, a land-
<br />use attorney in New Mexico and the former
<br />and current interim editor of Planning &
<br />Environmental Law.
<br />
<br />VOL. ~=, NO. 6
<br />Zoning Practice is a monthly publication of the
<br />American Ptannin§ AssocJatiort. Subscriptions are
<br />available for $65 (U.S,) and S9o (forei§n), W. Paul
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<br />Zoning Practice (ISSN ~548-o~35) is produced at
<br />APA. lira Schwab, A~CP, and Michael Davidson,
<br />Editors; 8arty Bain, ^~c~, Fay Dui^irk, Megan Lewis,
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<br />M. Ross, A~C~, Sarah K. Wiebenson, Reporters; Julie
<br />Von Bergen, Assistant Editor; Lisa Barton, Desi§n
<br />and Production.
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