Tag: substantive due process

Plaintiff cannot establish Section 1983 claim for erroneous application of solid waste ordinance

Gary Taylor

by Gary Taylor

Kiefer v. Isanti County, Minnesota

Federal 8th Circuit Court of Appeals, June 29, 2023

Kieth Kiefer moved onto a 53-acre parcel in Isanti County in 1992, and purchased the property in 1996. Shortly after moving onto the property he began to use approximately one acre to store scrap and other unwanted items, including “unlicensed vehicles, piles of scrap metal, tin, old furniture, old building material….” and many other items of junk. After receiving a citizen complaint, the County sent Kiefer several letters notifying him that his use of the property violated local law. Kiefer did not respond. Eventually, on November 19, 2008 the County cited Kiefer with a zoning code violation. Then, on December 22, 2008 the County filed a two-count criminal complaint charging Kiefer with (1) violating the county zoning code, and (2) violating the county solid waste ordinance. The county eventually dropped the zoning violation charge and proceeded to trial on the violation of the solid waste ordinance. A jury convicted Kiefer, and he was sentenced to 90 days in jail, 60 of which he served.

In March 2011, the County filed a civil action in Minnesota state court alleging that Kiefer was again violating the County’s zoning and solid waste ordinances. Kiefer responded, this time asserting the County had misinterpreted and misapplied the law. Following a bench trial, the state district court ruled in favor of the County. The Minnesota Court of Appeals reversed, concluding that the solid waste ordinance only applies to commercial or industrial operations. The Court of Appeals recognized that Kiefer’s current use of the property was not permitted under the zoning code but remanded for a determination on whether Kiefer’s use was a permissible preexisting nonconforming use, as the property was zoned as agricultural at the time of his purchase in 1996. On remand, the Minnesota district court found Kiefer in violation of the zoning code. The Minnesota Court of Appeals affirmed.

On July 31, 2018, Kiefer petitioned in state court for postconviction relief, seeking to vacate his criminal conviction after the Court of Appeals found the solid waste ordinance inapplicable. On October 8, 2018, Kiefer’s petition was granted. His conviction was vacated, and the clerk was ordered to refund the fine, court costs, and court fees imposed and paid by Kiefer. Two years later, Kiefer filed this federal lawsuit under 42 U.S.C. § 1983, claiming unlawful seizure and violations of his due process rights, along with state law claims for false imprisonment, malicious prosecution, and abuse of process. The district court dismissed the case after determining Kiefer failed to sufficiently plead the County had violated his rights. Kiefer appealed.

A plaintiff may establish municipal liability under 42 U.S.C. § 1983 if the violation resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise. Kiefer raised claims related to official policy and unofficial custom.

Official policy. The Sixth Circuit dispatched with Kiefer’s “official policy” claim because he only argued that the solid waste ordinance was the official policy of the county for the first time on appeal, and further that the county prosecutor was the official with policymaking authority when in fact it is the County Board of Supervisors.

Unofficial custom. To demonstrate the County violated his rights through an “unofficial custom,” Kiefer must show: “(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving force behind the constitutional violation. Kiefer asserted that the County used the solid waste ordinance to allege criminal violations against individual the county knew the statute did not apply to. The Sixth Circuit found the claim to be nothing more than “threadbare recitals” supported by “mere conclusory statements” and not enough to raise a right to relief. Even if Kiefer sufficiently alleged a “continuing, widespread, persistent pattern,” the complain did not allege the County was in some manner deliberately indifferent after notice of a possible violation. Even after it was established that Kiefer should not have been prosecuted under the solid waste ordinance “the doctrine of substantive due process is reserved for truly extraordinary and egregious case; it does not forbid reasonable, though possibly erroneous, legal interpretation.” Without a constitutional violation, there can be no § 1983 liability.

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Exemption to zoning overlay district did not constitute special legislation

Gary Taylor

by Andrea Vaage

Dowd Grain Co. v. Sarpy County
Nebraska Supreme Court, August 14, 2015

In March 2004, Sarpy County enacted a zoning overlay ordinance that imposed design guidelines and other regulations along a specified road corridor. In 2007, this ordinance was amended to exempt land that was platted before the enactment of the ordinance in 2004. Dowd Grain Company owned land subject to the overlay ordinance but did not qualify for the exemption. Dowd Grain filed a declaratory judgement action against the County. It claimed that the exemption was unconstitutional because the ordinance was special legislation. It argued that its property was similarly situated to the exempted land and that the exemption proffered special privileges on the exempted land.

As with other challenges to municipal ordinances, the burden falls to the challenger to prove a zoning provision is unconstitutional. The ordinance must be shown to be unreasonable, arbitrary, or discriminatory and that the provisions bear no relation to the purpose of the ordinance. Special legislation cases are determined to fulfill these requirements if the legislation creates a permanently closed class or an arbitrary and unreasonable method of classification. The district court ruled in favor of the County on all counts, whereupon Dowd Grain appealed.

The first question under review was whether the overlay ordinance created a closed class. A closed class is one that cannot expand in number due to future growth or development. Dowd Grain argued that its property cannot be added to the exempted class and no property beyond the geographical limits of the overlay district can be added. However, Nebraska case law has established that property owners in a geographic area cannot create a closed class because real property is alienable and subject to constant change, including division. The number of parcels could change and new members could join the class by a change in ownership of property.  Dowd thus failed to prove the ordinance created a closed class.

The second issue was whether the class created by the ordinance was arbitrarily selected and served no real public interest. Those exempt from the ordinance were property owners who had submitted a plat application before March 2004. Submission of a plat application requires considerable expense and planning. It was not unreasonable to exempt property owners who had submitted a plat before the implementation of the design guidelines in the overlay district because these owners expended time and money to develop their property based on previous guidelines. The submittal of a plat application was a reasonable distinction between those property owners exempted from the ordinance and those subject to it. The ordinance, therefore, did not create a special class.

The district court ruling in favor of the county was affirmed.

 

 

 

 

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Delay that doomed wind farm project did not give rise to substantive due process claim

by Rachel Greifenkamp and Gary Taylor

CEnergy-Glenmore Wind Farm #1, LLC v. Town of Glenmore
(Federal 7th Circuit Court of Appeals, August 7, 2014)

In Glenmore, Wisconsin, CEnergy planned to develop a wind farm. CEnergy obtained a conditional use permit from the town but did not obtain the required building permits for the wind turbines. CEnergy had entered into a power purchase agreement with the Wisconsin Public Service Corporation to sell wind energy for 20 years; however, the agreement was contingent upon CEnergy satisfying a variety of requirements, including obtaining all necessary permits, by March 1, 2011.

In September of 2010 the applications for the building permits to build the turbines were submitted to the Town Board.  In December 2010, CEnergy had provided all necessary information for the permits and informed the Chair of the Board that the permits would need to be approved by March 1 for CEnergy to satisfy the power purchase agreement. Over the course of the next three months, public sentiment had turned decidedly against the project, with the Board Chair receiving threats to his physical safety.  The Board did not take up the the issue of the building permits at the January or February meetings, ostensibly because the town’s attorney needed more time to review the documentation submitted by CEnergy.   The applications for building permits were finally considered and granted at a meeting on March 7, but citizens at that meeting became “accusatory and threatening” toward Board members and other town officials.  The Chair reopened the meeting and, after further discussion, the Board voted to rescind the granted permits.  One week later, however, the Board held a special meeting and nullified the rescission, thereby reinstating the granted permits.

When the Wisconsin Public Service Corporation backed out of the power purchase agreement due to CEnergy’s failure to obtain the necessary permits in time, CEnergy filed suit against the Town of Glenmore claiming a denial of its right to substantive due process and a violation of the town’s state law obligation to deal in good faith. The federal district court dismissed the due process claim for failure to state a claim upon which relief can be granted, the district court also declined to retain jurisdiction over the supplemental state law claim. CEnergy appealed the decision to the Seventh Circuit Court of Appeals.

On the issue of the denial to substantive due process, the Court of Appeals noted that while both the Supreme Court and the 7th Circuit Court of Appeals have acknowledged the possibility that a land-use decision could constitute a deprivation of property without substantive due process of the law, neither have definitively concluded such. However, like the district court, the Court of Appeals concluded that the substantive due process claim fails because the Board’s actions were not arbitrary.  “As far as the Constitution is concerned, popular opposition to a proposed land development plan is a rational and legitimate reason for a legislature to delay making a decision….The idea in zoning cases is that the due process clause permits municipalities to use political methods to decide.”  While the courts have stated the substantive due process standard in many ways – decisions must “shock the conscience,” be “egregious,” “arbitrary and capricious,” or “random and irrational” – the Board’s decision making process did not meet any of the tests.

The Court of Appeals further held that CEnergy’s claim must fail because it did not seek recourse under state law. The court has held in the past that a plaintiff who ignores potential state law remedies cannot state a substantive due process claim in federal court.  The standard process for obtaining a building permit in Glenmore involves submitting the request to the Town Zoning Administrator and then, if denied, bringing the request to the Board of Appeals. This typical process does not involve the Town Board at all. Because CEnergy went along with the political process and did not seek another administrative course of action to get their building permits approved, there is no opportunity for them to regain the lost profits from the wind farm.

The 7th Circuit Court of Appeals affirmed the judgment in favor of the Town of Glenmore.

 

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Unreasonable-to-repair provision in Brighton (MI) unsafe structure ordinance passes constitutional muster

Gary Taylor

by Gary Taylor

Bonner v. City of Brighton
(Michigan Supreme Court, April 24, 2014)

Under the City of Brighton, Michigan’s code of ordinances, if a structure is determined to be unsafe and the cost of repairs would exceed 100 percent of the true cash value of the structure when it was deemed unsafe, then the repairs are presumed unreasonable, the structure is presumed to be a public nuisance, and the city may order demolition of the structure without providing the owner an option to repair it.  The unreasonable-to-repair presumption can be overcome by presenting a viable repair plan, evidence from the landowner’s own experts that the repair costs would not exceed 100 percent of the property value, or evidence that the structure has some sort of cultural, historical, familial, or artistic value.

The City ordered Leon and Marilyn Bonner to demolish three unoccupied residential structures on their property after determining that repairs would exceed 100 percent of the true cash value of each of the structures (thereby providing the Bonner’s no option to repair).  The Bonners sued the City, and the circuit court and Michigan Court of Appeals determined that the above-discussed provisions of the Brighton Code of Ordinances violated property owners’ substantive and procedural due process rights.  The City appealed to the Michigan Supreme Court.

The Supreme Court determined that the Court of Appeals erred by failing to separately analyze the Bonners’ substantive and procedural due process claims. The substantive component of due process protects against the arbitrary exercise of governmental power, whereas the procedural component ensures constitutionally sufficient procedures for the protection of life, liberty, and property interests.

Substantive Due Process.  Because property owners do not have a fundamental right to repair a structure deemed unsafe by a municipality before that structure can be demolished, the government’s interference with that right need only be reasonably related to a legitimate governmental interest. The Brighton ordinance did not constitute an unconstitutional deprivation of substantive due process because the ordinance’s unreasonable-to-repair presumption was reasonably related to the city’s legitimate interest in promoting the health, safety, and welfare of its citizens. Nuisance abatement is a legitimate exercise of police power, and demolition is a permissible method of achieving that end. The ordinance was not an arbitrary and unreasonable restriction on a property owner’s use of his or her property because the ordinances provided for circumstances under which the unreasonable-to-repair presumption could be overcome and repairs permitted.

Procedural Due Process.  The Supreme Court further determined that the  demolition procedures provided property owners with procedural due process by providing the right to appeal an adverse decision to the city council, as well as the right to subsequent judicial review. The City is not required to afford a property owner an option to repair as a matter of right before an unsafe structure could be demolished, nor is the City required to provide for a reasonable opportunity to repair the unsafe structure in order for the ordinance to pass constitutional muster.

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Limiting percentage of rental units allowed per block was valid exercise of police power

by Rachel Greifenkamp and Gary Taylor

Dean v. City of Winona

(Minnesota Court of Appeals, February 24, 2014)

In the City of Winona, MN, there exists an ordinance that limits, in certain districts of the city, the number of lots on a block that are eligible to obtain certification as a rental property. Based on the findings from the city’s planning commission and a Parking Advisory Task Force that was formed to consider the issues of increased parking demands, the City found that rental-housing units comprised about 39% of the City’s total housing units, but that these rental properties comprised 52% of the complaints received by the Community Development Department. Based on data from 2004, the planning commission found that 95 of the 99 calls for police service based on noise and party-related complaints involved rental properties. They also found that 52% of the zoning violations that resulted in written violations were for rental properties. In 2005, the idea of restricting the number of rental properties per block was suggested. The Parking Advisory Task Force suggested that the number of rental units be restricted to 30% of the total properties on any given block. The task force adopted a motion to forward a “30% rule” to the planning commission for its consideration. The planning commission voted to recommend the 30% rule to city council, and the council subsequently passed the 30% rule.  The three appellants challenging the 30% rule in this case were the owners of three houses that were purchased after the 30% rule was adopted. In January of 2013 the district court denied the appellants’ motion that the 30% rule was an invalid exercise of the City’s broad police power, and that it violated their Equal Protection, Substantive Due Process, and Procedural Due Process rights under the Minnesota Constitution, and granted summary judgment to the city. The appellants then took their case to the Minnesota Court of Appeals.

Police Powers. The Court of Appeals determined that the 30% rule was, in fact, an authorized exercise of police power. The term “police power” means simply the power to impose such restrictions upon private rights as are practically necessary for the general welfare of all. “The development of the law relating to the proper exercise of the police power of the state clearly demonstrates that it is very broad and comprehensive, and is exercised to promote the general welfare of the state….[T]he public has a sufficient interest in rental housing to justify a municipality’s use of police power as a means of regulating such housing.”

Equal Protection. In order for an equal protection challenge to be valid the appellant must show that “similarly situated persons have been treated differently.” Similarly situated means that the two groups in question are alike in all relevant respects. The Court concluded that the 30% rule is not invalid on its face:

The ordinance is facially neutral and applies equally to all property owners in the regulated districts. The ordinance sets a 30% cap, but it does not define or predetermine which lots will be certified. That determination is made based on the changing facts and circumstances on each block, and not based on the ordinance or the characteristics of lot owners. The fact that the number of lots that may be certified might be less than the number of property owners who desire certification is not a class-based distinction between two groups of property owners.

The Court also concluded that the 30% rule was not discriminatory in the manner it was being applied by the city.  The Appellant did not show that the city “has done anything other than apply the mathematical formula on a first-come, first-served basis. Appellants’ real complaint is about the effect of an otherwise neutral ordinance on their particular circumstances, which does not give rise to an equal protection claim.”

Substantive and Procedural Due Process.  The substantive due process and procedural due process claims were also considered invalid. The appellants argued the the 30% rule violated their right to rent their property, but such a right is not a “fundamental right” protected by the Minnesota Constitution.  Unless a fundamental right is at stake, substantive due process requires only that the statute not be arbitrary or capricious.  The Court concluded that the 30% rule was adopted after a long, deliberate information-gathering process that considered public input, data, and expert review, and was thus not arbitrary or capricious.

As for procedural due process, the appellant’s argued that the 30% rule improperly delegates the power of deciding whether or not they may receive a license to their neighbors, but the Court reasoned otherwise because the “neighbors” (owners of certified rental properties) do not determine which other lots may be certified. “The certified-property owners’ views regarding whether a particular lot should be certified as a rental property are irrelevant; they can neither grant certification by consenting to it nor prevent certification by denying consent.”

The Minnesota Court of Appeals affirmed the district court’s award of summary judgment in favor of the city because the adoption of the ordinance was an authorized exercise of its police power and because the appellants did not met the burden to show that the ordinance is unconstitutional.

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City council corruption does not give rise to Constitutional claims in rezoning denial

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by Kaitlin Heinen

EJS Properties, LLC v. City of Toledo; Robert McCloskey
(Federal 6th Circuit Court of Appeals, September 5, 2012)

In April of 2002, EJS Properties entered into a conditional agreement with Pilkington Corporation to purchase 20 acres of a 43-acre lot that Pilkington owned, which included a technical center that EJS intended to convert into a charter school. This agreement was expressly contingent on obtaining a zoning change from industrial to one that could contain a school. EJS also entered into a non-conditional lease agreement with Lake Erie Academy to open the charter school. In May 2002, EJS filed a re-zoning petition with the Toledo-Lucas County Plan Commission. The Plan Commission recommended the re-zoning and passed the request onto the Toledo City Council. The City Council’s Zoning and Planning Commission held a public hearing on July 17, 2002, where everyone agreed to re-zone only the portion of Pilkington’s lot that would be needed for the school. The Committee voted unanimously to recommend the request for full vote by the Council, which was placed on the City Council’s agenda for August 13, 2002. During this re-zoning process, EJS had obtained an early-start building permit to begin $200,000 worth of repairs and improvements on the technical center.

Prior to August 13, Pilkington executives John Keil and Randy Berg had a lunch meeting with City Council member Robert McCloskey, who represented the district containing the Pilkington lot. McCloskey asked Pilkington to donate $100,000 to assist local retirees at the community center—Keil and Berg declined. At the next council meeting, member Peter Gerken moved to table consideration of the re-zoning for two weeks. EJS claims that McCloskey lobbied the other members to reverse their vote, but when he could not get enough to defeat the measure, he asked Gerken to table the matter. (McCloskey was a former Pilkington union negotiator, who had helped negotiate a labor agreement that capped healthcare benefits for retirees, for which he faced significant criticism upon being elected to City Council.) McCloskey then proceeded to call Keil, Berg, and Erich Speckin, the owner of EJS, and left questionable voicemails that sought the money for the retirement center in connection with the pending re-zoning. On August 22, Keil sent a letter to all of the City Council members and Mayor, seeking support for the re-zoning request and to consider the unrelated issues between Pilkington and McCloskey: “Such issues have the potential for exploitation to the detriment of the zoning request.” Pilkington and EJS never reported McCloskey’s request to the police.

On August 27, 2002, the City Council voted 7-4 against re-zoning (4 members had changed their vote from committee, including McCloskey). Only one member testified that he had been approached by McCloskey, who discouraged voting for the ordinance. EJS did not appeal the denial. Two months later, Toledo voters passed a levy, mandating the building of two new middle schools on the east side of Toledo. Toledo Public Schools (TPS) won an eminent domain lawsuit against Pilkington in November 2003 for the entire 43-acre lot. The Plan Commission, the City Council’s Zoning and Planning Committee, and the City Council approved a re-zoning in January 2004 to build a TPS middle school there.

EJS filed a complaint against the City and McCloskey in May 2004 for deprivation of substantive and procedural due process, deprivation of equal protection, deprivation of its property rights and its First Amendment right to petition in violation of 42 U.S.C.A. §1983, and wrongful interference with a business expectation in violation of state law. The district court granted summary judgment to the City and McCloskey on EJS’ constitutional claims. The court denied McCloskey summary judgment on EJS’ tortious interference claim (the district court actually stayed legal proceedings at one point to see the outcome of McCloskey’s 2006 indictment on federal criminal corruption charges, for which he pleaded guilty and received a 27-month prison sentence). After first dismissing EJS’ appeal for jurisdictional reasons, EJS dropped the state-law claim for wrongful interference. Then the U.S. 6th Circuit Court was able to hear the case.

In arguing for the deprivation of substantive and procedural due process, EJS argues that it had property interests at stake in the ordinance for re-zoning, in its contracts, and in its early-start building permit. The City Council never approved the re-zoning ordinance; rather, the City’s Planning Commission and Committee did. The 6th Circuit found that the only way for EJS to have a property interest in the re-zoning ordinance then is if the City Council lacked the discretion to approve it. However, the Toledo Municipal Code’s use of the word ‘may,’ grants the City Council discretionary authority over zoning regulation. Therefore EJS had no property interest in the re-zoning ordinance. Absent a property interest, EJS had no recognizable rights subject to due process protections.  As for its contracts, EJS argues that the contract options created property interests subject to due process protections; however, the purchase agreement explicitly states that “prior to the Closing Date, [EJS] has no title or estate in the Property…and will not claim any such interest…over any part of the Property.” The contract was explicitly contingent upon obtaining a re-zoning for the property, which did not happen–therefore, EJS possesses no interest in the property as a result of its contract. Finally, in regards to the early-start building permit, the permit did not entitle EJS to a re-zoning change, and the improvement work done on the building was “performed at the applicant’s own risk,” according to Toledo Municipal Code.

EJS also argued that it possessed two liberty interests that were violated: 1) a liberty interest in a government decision free from corruption and 2) a liberty interest in engaging in business contracts without unlawful interference. As to the first claim, corruption only affects procedural due process, which EJS could not be deprived of since the court ruled that EJS never possessed a  property interest of any kind. The court rejected the second claim on the same grounds as its ruling on property interests in relation to EJS’ contracts, holding that the defendants did not interfere with EJS’ right to contract because the contracts were contingent on discretionary zoning.  Additionally, the Supreme Court of the United States has upheld only a short list of liberty interests, and the circuit court here could not find any support for a liberty interest in a discretionary government decision free from corruption or unlawful interference.

In addition, EJS argued that corrupt zoning decisions “shock the conscience” and violate substantive due process as a result, regardless of whether or not a property or liberty interest is at stake. However, the court dismissed this claim, stating, “Our prior precedent makes clear that in the context of a discretionary zoning decision, government action will not shock the conscience unless the arbitrary and capricious action touches on a protectable interest.” With neither a property nor a liberty interest at stake, EJS had no merits for this claim. Even if EJS had a property or liberty interest, the court reasoned that “although we can condemn McCloskey for his misconduct, we simply cannot say that his behavior is so shocking as to shake the foundations of this country,” which was the original purpose for establishing the “shocks the conscience” standard.

Finally, EJS’ last two claims involved its right to petition and its right to equal protection. The court conceded that seeking redress from a government official qualifies as petitioning, for which a zoning request also qualifies. Specifically in regards to its right to petition, EJS argued that its right to meaningful access was violated. The court countered that EJS was equating meaningful access with meaningful process. Process is associated with violations of substantive or procedural due process, which was already decided to not have occurred in this case because EJS lacked both a property and a liberty interest. As for equal protection, the court ruled that EJS and TPS were not similarly situated, which does not grant adequate merits for an equal protection claim. Unlike EJS, TPS owned the relevant property at the time of their re-zoning request. TPS also intended to use the entirety of the property rather than part of it. And TPS planned to build a financially stable public school rather than a private school. These are rational bases for the City Council to have treated EJS differently than TPS.

Having dismissed all of EJS’ constitutional claims, the U.S. 6th Circuit Court upheld the district court’s decision to grant summary judgment to the defendants.

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Refusal to rezone to multi-family not a due process violation; did not constitute exclusionary zoning

Gary Taylor

by Victoria Heldt

DF Land Development, LLC v. Charter Township of Ann Arbor
(Michigan Court of Appeals, November 17, 2011)

DF Land Development owned a 54-acre piece of property within Ann Arbor Charter Township (Township) that was zoned “A-1”.  This zoning classification allowed farming and agricultural use or one residential unit per every ten acres.  DF Land wanted the property rezoned to “R-7” so it could build multi-family residential units.  Its request was denied.  DF filed a substantive due process claim in court alleging that the denial to rezone the property constituted exclusionary zoning and a taking of the property.  The trial court granted summary judgment in favor of the Township and dismissed DF Land’s substantive due process and takings claims.

DF Land appealed, arguing that the refusal to rezone is arbitrary and capricious and that the current zoning was unreasonably restrictive.  They were of the opinion that it violated their substantive due process rights and was an “inverse condemnation of the property through regulation.”  The Court first noted that, in a review of a city ordinance, 1) the ordinance is presumed valid, 2) the challenger has the burden of proof to prove unreasonableness, and 3) the Court gives heavy weight to the trial court’s findings.  Additionally, in order to be successful in its claim, DF Land must show that no reasonable governmental interest is advanced by the zoning classification and that the ordinance is unreasonable “because of the purely arbitrary, capricious, and unfounded exclusion of other types of legitimate land use from the area in question.”

As to the question of whether the zoning ordinance serves a legitimate governmental interest, the Court found that it did.  The evidence presented showed that the ordinance worked to “preserve the rural character, natural features, and availability of open areas by limiting residential development on the property through density restrictions.”  According to precedent, this purpose constitutes a legitimate governmental interest.  It further found that the ruling was consistent with the historical use of the property, so it was not an arbitrary decision.  DF Land argued that the statute was too restrictive because it disallowed the property’s most economically viable use.  The Court dismissed that argument as irrelevant because a property does not, by law, need to be zoned for its most profitable use.

DF Land argued that the zoning ordinance was unlawfully exclusionary because it prohibited an R-7 zoning classification on the property.  The Court noted that an ordinance would only be considered exclusionary if it prohibited that zoning throughout the entire township.  Evidence demonstrated that 28-37% of the residential units in the township consisted of multi-family housing, so the R-7 zoning classification was not forbidden in the entire Township.  Therefore, the ordinance was not unjustly exclusionary.   The Court affirmed the trial court’s decision.

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Rezoning in compliance with court order not a taking

by Melanie Thwing

Bettendorf v. St. Croix County
(Federal 7th Circuit Court of Appeals, January 20, 2011)

John Bettendorf owns property in St. Croix County, WI. Although the property was originally zoned agricultural-residential in 1972 he began to run a carpet business out of his basement. Then in 1974 he began to run an excavating company from the property. In 1984 Bettendorf applied to the County to re-zone a portion of his land to commercial.  The the application was approved with the stipulation that the rezoning was not transferable to any subsequent landowner, and upon such a transfer, or Bettendorf’s death,  the zoning classification of the property will revert to agricultural-residential. Bettendorf used the property in a commercial manner after the ordinance was enacted, but fully knowing that the language of the permit would not allow him to regain any commercial investment when he went to sell the property Bettendorf petitioned to make the re-zoning permanent. In 2004, Bettendorf filed an action in the Circuit Court for St. Croix County seeking a declaratory judgment that the conditional language was void and should be stricken from the ordinance. The circuit court found in favor of Bettendorf, but on appeal the Wisconsin Court of Appeals held the ordinance void in its entirety. In July 2007, the circuit court entered a revised judgment and order rescinding the commercial zoning of the disputed parcel in accordance with the Court of Appeals’ decision. The County complied with the order by rescinding the commercial zoning designation.  Bettendorf then sued in federal court.

Bettendorf argued that the County’s rescission of the commercial zoning designation following the court’s decision constituted a taking. He also argued that he was not given appropriate substantive and procedural due process protections. The Federal 7th Circuit observes that to prove a regulatory taking the government action must deprive the landowner of “all or substantially all practical uses of the property.” Bettendorf argued that the court did not adequately consider his anticipated and distinct investment opportunities. The court disagreed, stating that Bettendorf made improvements to his property with full knowledge that the commercial zoning classification was not going to be permanent.  When he began litigation he fully assumed the risk that the scope of the ordinance could be reinterpreted. Bettendorf still maintains full use of his property for agricultural and residential purposes, which simply restores the land to its original use.

Bettendorf argued he was “denied the protection of the substantive legal standards that would have been applied to a change in zoning….” The court found this argument to be without merit. The County’s decision to remove the commercial zoning designation was simply in accordance with the Court of Appeals decision. Therefore it could not be “conscious-shocking or arbitrary,” the showing needed to prove a substantive due process claim. 

As for Bettendorf’s procedural due process claim, Bettendorf was afforded the the opportunity to avail himself of due process protections through the state court system, yet he chose to bypass the state court appeals process. This seriously “undermines his argument that the state court process was deficient.” The Seventh Circuit ruled for the County on all claims.

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7th Circuit rules on city’s point-of-sale inspection ordinance

Gary Taylor

by Gary Taylor

Hussein H. Mann, et. al. v. Calumet City, IL
(Federal Seventh Circuit Court of Appeals, December 7, 2009)

Post-sale inspection ordinance found constitutional. 

Calumet City, Illinois has an ordinance that forbids the sale of a house without an inspection to determine whether it is in compliance with the City’s building code.  The ordinance requires a property owner to notify the City government of a proposed sale of his property. The City has 28 days after receiving the notice to conduct a compliance inspection. During that period it must notify the owner of its intention to conduct the inspection. If he responds that he won’t consent to an inspection, the City has 10 days within which to get a warrant from a judge.  Within three business days after conducting the inspection (whether or not pursuant to a warrant) the City must notify the owner whether the house is in compliance with the building code and, if not, what repairs are required to bring it into compliance. If the inspection discloses an unlawful conversion of the house to a multifamily dwelling, the order, instead of being a repair order, will order deconversion. After the City is notified that the repairs have been made or deconversion effected, it has three business days within which to reinspect. An owner who is in a hurry to sell the house can do so before completing the ordered repairs or deconversion if his buyer posts a bond equal to the expected cost of bringing the house into compliance. The buyer then has 180 days to complete the repairs or deconversion; if he fails to do so, the City can ask a court to order him to do so. The owner can appeal a repair or deconversion order to the City’s Zoning Board of Appeals, where he is entitled to a full hearing. The appeal stays the City’s order. An owner who loses in the board of appeals is entitled to judicial review in the Illinois state court system in the usual manner.

Plaintiffs challenged the constitutionality of the ordinance “on its face,” meaning that in any application of such an ordinance it does not meet constitutional muster.  The district court dismissed the claims, and Plaintiffs appealed to the Seventh Circuit.

Plaintiffs challenged the ordinance on substantive due process grounds, arguing that there was no rational basis for the regulation.  After pointing out that Plaintiffs were engaging in an “uphill fight” to prove their claim, the court examined Plaintiffs’ arguments.  The court observed that building codes, to which the challenged ordinance are the most reasonable of regulations:

“They do increase the cost of property (as do other conventional regulations of property), but if reasonably well designed they also increase its value. Without them more buildings would catch fire, collapse, become unsightly, attract squatters, or cause environmental damage and by doing any of these things reduce the value of other buildings in the neighborhood. Assuring full compliance with building codes is difficult after a building is built, because most violations are committed inside the building and thus out of sight until a violation results in damage visible from the outside. …All this seems eminently reasonable….”

The Plaintiffs also raised a procedural due process claim, questioning the procedural adequacy of the method by which the City’s ordinance is enforced.  The Plaintiffs argued that it fails to provide for “pre-deprivation” procedures; that the City should be required to go to court, or conduct an administrative hearing before it can order repairs or deconversion.  The court dismissed this line of reasoning, pointing out that a homeowner can challenge the order, and if he does it is stayed.  “That is pre-deprivation process…. All that is required is . . . notice and an opportunity to be heard before being deprived of a protected liberty or property interest.”  The Seventh Circuit affirmed the district court’s dismissal.

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