The Zoning and Planning Law Report (Thomson | West) has published my article about the post-Lingle developments in substantive due process in the Ninth Circuit. Download a pdf of the article here.
From the introduction:
Substantive due process asserted as a claim for relief has a whiff of danger about it. After all, a plaintiff claiming a violation of substantive due process is asking a court to override the judgment of the political branches and invalidate an ordinance, statute, or an administrative determination because the action is somehow illegitimate. After the demise of Lochner, courts are understandably reluctant to be seen as second-guessing the policy choices made by the elected branches of government, and a suggestion that a court is "Lochnering"—legislating from the bench by invalidating economic regulations based on a judge’s contrary economic or social beliefs—can be the equivalent of judicial kryptonite.
In part because land use actions can be characterized as economic regulation, until recently, many courts preferred to resolve constitutional challenges under the Takings Clause, which seemed to provide a more defined analytical framework, at least when compared to the more generalized standards applicable to substantive due process challenges. The Ninth Circuit, for example, forced property owners to challenge land use regulations exclusively as regulatory takings under the Fifth Amendment. When regulatory takings analysis under the two-part Agins v. City of Tiburon standard included both legitimacy and diminution of value components, this forced election of remedies had at least a semblance of intellectual consistency since a landowner could challenge an action as illegitimate under the "substantially advance" test—at least theoretically—and was not limited to seeking compensation under the second part. The two-part test, however, did not survive the Supreme Court’s unanimous ruling in Lingle v. Chevron, U.S.A., at least as one of takings. Lingle clarified that the "substantially advance" prong of Agins was not a "takings" test and that courts should review the legitimacy of land use regulations under the Due Process clause.
After Lingle, the Ninth Circuit revisited its forced election of remedies requirement and expressly overruled it. This article summarizes the Ninth Circuit’s post-Lingle cases which reinvigorated substantive due process as a vehicle for reviewing land use regulations, and suggests several areas for further inquiry when asserting the claim in land use and property cases.