United States: Developers' Rights And Due Process; Illegal Moratoria Do Not Give Rise To Section 1983 Civil Rights Claims

Last Updated: August 8 2012
Article by Matthew Hinks

Consider these facts: A married couple owns waterfront property in a picturesque harbor. They devoutly wish to build a pier or a dock on their property; however, the city refuses to even accept an application for a permit. This is because the city had previously passed and repeatedly extended an illegal moratorium preventing construction of new docks and piers in the area in which the couple's property is located. The initial moratorium was passed on an emergency basis without a prior public hearing and without findings documenting the emergency or justifying expedited treatment. A state trial court declared that the rolling moratorium violated the state constitution. After the state appellate court granted a stay of the trial court's decision, the city announced that it would continue to refuse permit applications for over-water structures during the pendency of the appeal and continued extending the moratorium until the city adopted a new comprehensive shoreline use plan that permanently banned new over-water construction and forever prevented the couple from building their dock.

Despite the earlier stay, the state court of appeal unanimously affirmed the trial court's ruling. The state Supreme Court also affirmed holding that, not only is "[t]here is no authority in [applicable state law], express or inherent, [that] justifies the [c]ity's attempt to impose unilateral moratoria", state law affirmatively prohibits city-adopted moratorium in these circumstances. The state Supreme Court determined that the city's actions amounted to a "clear violation of [the] property owners' rights" and "resulted in a physical degradation of these private owners' property". Further, the city's resort to the illegal moratoria was especially suspect being that, "the [c]ity had years to make any required plan changes but did not do so."

One would assume that those property owners are entitled to a remedy for the deprivation of their property rights. Not so, according to the Ninth Circuit Court of Appeals in Samson v. City of Bainbridge Island (9th Cir., June 15, 2012), in a troubling opinion in which the court summarily adjudicated the Samsons' substantive and procedural due process claims brought under 42 U.S.C. § 1983.

Legal Analysis: Violations of State Law Do Not Necessarily Amount to Constitutional Violations

According to the court, a government entity may be held liable under Section 1983 if an "action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Because the Samsons' action touched only upon their "economic interests" and not their "fundamental rights", to establish a substantive due process violation, the Samsons were required to show that the city's ordinances establishing and extending the moratorium were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare." This, the Samsons could not show because, according to the court, the city's conduct in adopting and extending the illegal moratoria (even after the trial court had determined them to be illegal under state law) was not "arbitrary in the constitutional sense." On the contrary, "at a minimum, it [wa]s 'at least fairly debatable' that [the city] furthered its legitimate interest in orderly, environmentally protective shoreline development by instating a moratorium on new over-water projects."

Strikingly, the court had little trouble with the fact that the city's rolling moratoria were determined to be illegal under state law. Citing United States Supreme Court precedent, the court went so far as to call "moratoria", or "interim development controls" as they are often referred to, "an essential tool of successful development." It mattered not that the moratoria imposed here were illegal. "Not every violation of state law amounts to an infringement of constitutional rights." Unless there is a breach of constitutional rights, Section 1983 does not provide redress in federal court for violations of state law.

The court's discussion of the procedural due process claim was terse and unsatisfying. Although the moratoria were themselves unlawful, "[n]othing in the record suggest[ed] that the City Council adopted the various ordinances in an unlawful manner." The city "hewed to its ordinary protocols when it passed the moratorium ordinances." Thus, the Samsons' rights were "protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule."

Concluding Thoughts

The Samson opinion and the entire saga of the travails of the plaintiffs highlight the confusion and inconsistent treatment property owners face in actions brought under Section 1983. Even though the Samsons suffered a "clear violation" of their rights, including the "physical degradation" of their property, they were left without a remedy. Though "surely vexing" to the Samsons that they successfully challenged the moratoria in state court, but received no damages for their efforts, according to the Ninth Circuit, "the federal courts do not exist to satisfy litigants who are unhappy with what they received in state court". In the end, the city was allowed to accomplish through illegal means what could not have been accomplished legally and suffered no adverse consequences.

On a bit of a side note, following the city's adoption of the permanent ban on over-water structures, the Samsons had filed a separate suit in state court challenging the ban. The state appellate court rejected the Samsons' arguments and affirmed the dismissal of their lawsuit. The appellate court opinion rejected facial challenges to the ban. What is not clear is whether the Samsons had available to them and chose not to pursue as-applied claims or related claims and remedies as a result of the city's refusal to process their initial permit application, or whether such claims and remedies were unavailable under state law.

What is clear, in the words of the Ninth Circuit, the Samsons " won the battle, but lost the war".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions