In Van Sant & Co. v. Town of Calhan, No. 22-1190 (Oct. 13, 2023), the U.S. Court of Appeals for the Tenth Circuit considered the claim of the operator of a mobile home park who asserted a due process property right to instead use its property as a RV park. Here's why the court said no.
Van Sant was using its property as a mobile home park. It decided to use its land instead as a RV park. Turns out that the local municipality doesn't much care for RV parks -- or at least the way that Van Sant was going to use its property -- so the Town shifted from a regime that didn't regulate RV parks to a regime that prohibited or tightly controlled RV parks on certain lands (lands that looked an awful lot like Van Sant's). And to cap it off, the Town's new regulations treated the two other existing RV parks as nonconforming uses, allowing them to operate.
Van Sant sued, alleging the usual (takings, due process, and equal protection), and some unusual (Sherman Act) claims. The district court granted the Town summary judgment.
We'll let you review how the Tenth Circuit dealt with the Sherman Act claim yourself (short story: summary judgment affirmed). See slip op. at 26-38. Instead, we'll focus on the due process claim (Van Sant abandoned its takings claim by filing an amended complaint in the district court which removed the previously-alleged claim). Short due process story: summary judgment in the Town's favor affirmed.
The court's analysis focused on the primary question in these kind of cases: does the plaintiff possess a "property" right which it cannot be deprived of without (substantive) due process? The court held no. It rejected the owner's claim that the right to continue to use its property in the way it had been is some kind of fundamental right.
This question turned on whether the Town had discretion to deny the use:
This means Van Sant “must show that under the applicable law,” Calhan and its Board “had limited discretion” to adopt ordinances that placed limitations on, or effectively regulated, Van Sant’s ability to operate its land as an RV park. Id. “Otherwise, the city’s decisionmaking lacks sufficient substantive limitations to invoke due process guarantees.”
Slip op. at 30 (citations omitted).
The Town didn't have any discretion, argued Van Sant, because the Town had no regulations or restrictions on using land for an RV park. See slip op. at 41 (Van Sant argues that “Calhan did not have any discretion over Van Sant’s decision in 2015 to begin renting space to RVs because there simply were no procedures to follow and no restrictions in place.”). But wait, Van Sant wasn't actually using its land as an RV park when the Town adopted the anti-RV park restrictions, it intended to.
It isn't material that it wasn't actually making the use, Van Sant argued in response, what matters is that it could have because the Town "did 'not have formal zone districts' or 'a formal process for reviewing applications to develop property into an RV park.'" Id. It may be one thing to say that an owner doesn't have a fundamental right to use land when there's some discretionary restrictions on that use, and another thing to say that in the absence of regulation that an owner can't use its land in any way that isn't injurious to its neighbors.
The court rejected the argument:
In sum, Van Sant appears to be asserting that because Calhan did not have any RV park regulations in place prior to October 19, 2018, Van Sant had a fundamental right to both convert and operate its property as an RV park and to continue operating its property as an RV park without any future regulations imposed on it by Calhan.
Id.
No deal, the court concluded. There's no Colorado statute that recognizes such a property right, which is also not a product of the Colorado Constitution. Nor did Van Sant have a vested right to use its land as an RV park, because it never sought a building permit and thus could not have reasonably relied on that kind of governmental assurance. "We therefore agree with the district court that Van Sant has failed to establish that a fundamental right is at stake here." Slip op. at 43.
Having concluded that no fundamental right was at stake, the court dropped the tiers-of-scrutiny analysis: "[t]hat means that we apply only rational basis review to Calhan's passage of Ordinance 2018-13." Slip op. at 43. And we don't have to tell you what that means, do we?
Van Sant & Co. v. Town of Calhan, No. 22-1190 (10th Cir. Oct. 13, 2023)
