Ninth Circuit Court of Appeals Muddies the Substantive Due Process Waters; Supreme Court Asked to Intervene

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   There are two fundamental sources of   property rights protection in the Federal Constitution.  The Fifth Amendment provides in part that private property shall not be taken for public use without just compensation.  In addition, the due process clause requires that land use laws and regulations substantially advance legitimate governmental objectives. Land use lawyers recognize these two standards are not the same.  The Fifth Amendment will be violated if the economic effect of an otherwise lawful land use law or regulation deprives a property owner of his or her investment backed expectations.  This rule was pronounced in 1978 by the United States Supreme Court in Penn Central Transportation Co. v. City of New York. A substantive due process violation, on the other hand, will typically invalidate the land use law or regulation as beyond the authority of the government to impose.  Thus, there is an oft cited United States Supreme Court principle that the Fifth Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.”

Thus, in order to prevail on substantive due process case, the property owner has a fairly high burden of proving that a land use law or regulation does not substantially advance a legitimate government interest. However, a recent decision of the Ninth Circuit Court of Appeals in Samson v. City of Bainbridge has thrown disarray into the proper substantive due process test.  In this case the court held that the proper test is whether the land use law or regulation “shocks the conscience.”  This has never been articulated as a proper test for substantive due process in the land use context.  Historically, it has only been used to determine whether police misconduct in the criminal context gives rise to a substantive due process violation.  Laws are drafted by teams of lawyers, and can be worded to provide the appearance of reasonableness to the average citizen when in fact they are draconian.  The United States Supreme Court should grant review of the Samson case to confirm the historical test of a substantive due process, and prevent yet another attempt by the Ninth Circuit to impose barriers to property rights.

The land use lawyers at Kassouni Law are some of California’s most preeminent property rights attorneys. If you are facing a land use or property rights legal matter, contact our land use lawyers at (877) 770-7379. Our lawyers will be happy to assist you by developing a personalized legal plan of action.

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