International Municipal Lawyers Association - Local Government Blog

Substantive Due Process at Work | March 17, 2009

Posted By: Dwight Merriam, Partner, Robinson & Cole

Lingle v. Chevron, 544 U.S 528 (2005)  helped clarify the relationship of takings, unconstitutional conditions, and substantive due process.  It’s the one decision I ask people to read, both lawyers and people who haven’t suffered through law school, when I want to help them understand where the U.S. Supreme court is on these issues.  The Court may have passed up an opportunity in the decision to make some bright line rules for takings, but it still helps considerably.

montanaThis last week, the Supreme Court of Montana did something curious with a substantive due process claim.  In Town & Country Foods v. City of Bozeman, decided on March 10th  — click here for a copy — the Big Sky Country high court seemed to say you can’t use substantive due process to challenge a zoning decision unless you are challenging the constitutionality of the regulation itself.

Let me back up here.  Basic facts – Town & Country wanted approval of a 32,000 square foot store in the B-1 zone.  The maximum store size in the zone is 5,000 square feet so they broke up the big store into six mini-stores – pharmacy, bakery, produce market etc. Cute trick.  Wal*Mart tried that a few years ago, in Virginia I think, and then backed down.

The city commission “reclaimed” the application – basically made it theirs to decide – and denied it.

The usual lawsuit followed, based on due process and equal protections claims.  The trial court granted summary judgment for the city and the Montana Supreme Court upheld the trial court – no substantive due process or equal protection violations and not an abuse of discretion to deny.  By the way, the trial court said that there is no property interest in a site plan approval.  That sounds more like the Second Circuit.

Now, here’s the curious part.  Consider first this from the decision:

“Substantive due process primarily examines underlying substantive rights and remedies to determine whether restrictions are unreasonable or arbitrary when balanced against the purpose of a government body in enacting a statute, ordinance or regulation. In other words, the test of whether the government denied a party constitutional substantive due process concerns an examination of whether the government, by enacting a piece of legislation, acted in an unreasonable, arbitrary, or capricious fashion. [Citations omitted.]”

Okay, I can go along with that, so long as I know substantive due process is available in the world of as applied decisions.

But now, what do you think of this:

“A constitutional substantive due process analysis is inapplicable under the facts of this case because T&C does not allege Bozeman’s Zoning Ordinance is unconstitutional. T&C essentially argues the city commission failed to follow its own ordinance in denying its application and therefore acted arbitrarily and capriciously.”

In the end, the court undertook the analysis separately under the heading of “abuse of discretion” asking if the decision was “unreasonable, arbitrary, capricious, unfair, or discriminatory.”  The court found it was none of these things.

I guess I will now go reread Professor Daniel Mandelker’s article “Entitlement to Substantive Due Process:  Old versus New Property in Land Use Regulation” and see if I can’t figure it out. click here to read along with me…


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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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