2007 in Review: Taking Substantive Due Process Seriously Again

After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) informed us that the "substantially advance a legitimate state interest" test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due process in the land use context. 

• The Ninth Circuit finally jettisoned the Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc) doctrine in Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. Nov. 1, 2007).  Armendariz stood for the unusual proposition that a property owner's claim for violations of substantive due process rights were "subsumed" within the owner's claim for violation of the Takings Clause.  Thus, in land-related issues, a property owner could only bring takings claims.  No longer, as I wrote here.

• In Cine SK8, Inc. v. Town of Henrietta (No. 06-1718-cv) (Nov. 8, 2007), the Second Circuit detailed one way to prove a land use substantive due process case.  The court also noted that when a local government agency acts outside the scope of its delegated jurisdiction, it violates due process.  More here.

• In  Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), the Court of Appeals for the District of Columbia also provided guidance on how substantive due process principles may guide the issue of Kelo pretext.  While the issue in Franco involved the public use clause, as I noted in this post, the analysis has much crossover with substantive due process issues.