Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard of conduct required of local governments under that clause, the as-applied substantive due process claim can serve as an effective weapon for landowners who seek redress for alleged arbitrary and capricious behavior by local governments. Moreover, like other constitutional claims available to landowners, substantive due process claims potentially increase the litigation costs and exposure to liability of local governments and their individual agents who seek to implement land use regulations. However, the effectiveness of the substantive due process claim as a check on arbitrary government regulation and the related increase in costs imposed upon local governments by the claim largely depend upon when federal courts find the claim "ripe" for judicial review. The ripeness doctrine, as utilized by courts in the land use context, requires that local governments have one or more opportunities to apply regulations to the properties of landowners before being held liable for arbitrary and capricious behavior in federal court. As a result, a court's approach to determining ripeness has significant practical consequences for local governments and landowners. An underdeveloped ripeness standard - one that allows landowners to quickly bypass local processes to sue in federal court - likely increases the exposure to liability and litigation costs of local governments and individual government agents. Consequently land use regulators will become more timid in applying and enforcing regulations. Hence, an underdeveloped ripeness standard may hinder efforts by local governments to perform regulatory functions that are vital to the health and safety of communities and the protection of the environment.
David S. Mendel,
Determining Ripeness of Substantive Due Process Claims Brought by Landowners Against Local Governments,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol95/iss2/4