This one from the Tenth Circuit didn't even merit a published opinion, but is still worth reading, just because the situation seems so absurd.
In this Order and Judgment, the court affirmed the dismissal of property owners' claim that the County wouldn't issue a septic permit until after the owners actually constructed the septic system. Colorado law, they argued, requires them to get a permit before building a septic system. That's nice, replied the County: here, we do it different; first you build, and only then do we decide whether you get a permit.
The owners alleged that without a septic permit, they could not obtain a construction permit. Which means that they couldn't build their home as planned. Next stop, federal lawsuit alleging due process violations (both kinds) and a taking.
The district court dismissed and the Tenth Circuit summarily affirmed:
- Procedural due process: yes, the conflict between the procedures required by the State of Colorado and the County of Costilla might be a problem, but it's only a problem of state law, and not a problem under the U.S. Constitution. And remember: you don't have a property interest "in a specific permitting procedure." Order at 5.
- Substantive due process (you know where this is headed): the County's procedure may not be "beyond criticism" because it might force the owners to violate state law by installing a septic system without a permit, but whatever. "The county could reasonably conclude that withholding permits until after inspection would allow it to better ensure that septic systems meet health and safety standards." Order at 5. Rational basis strikes again.
- Takings: the owners didn't properly plead a Penn Central claim. They didn't allege that the denial of a construction permit for their home would have a significant economic impact on them (that seems like a reasonable inference that could be drawn, but what do we know). The court also decided the "investment-backed expectations" factor on the merits by concluding that "[t]hey expected to be able to build a home on the property, and the county’s procedure allows them to realize that expectation." Order at 8. Yeah, but only if they violate state law.
The owners were made to decide between violating state law or violating local law. According to the court, it's no problem to the constitution that they have to make this choice. Very odd.
Order and Judgment, Smith v. Medina, No. 23-1303 (10th Cir. Oct. 11, 2024)