Supplemental Conditions

Suing a Local Government in Land Use Cases – Part 2 – Procedural Due Process

Posted in Government Contracts, Public Contracts

In my last post I discussed suing a local government for a substantive due process violation. In this post, I discuss a the right to procedural due process.

The Fourteenth Amendment of the United States Constitution protects prohibits the government from depriving an individual or business of life (in the case of an individual), liberty, or property without due process of law.  Unlike the somewhat abstract and subjective concept of substantive due process, procedural due process is direct and objective. Generally, if an individual or business maintains a property or liberty interest, a local government must afford that individual or business notice that the government intends to deprive them of a liberty or property interest and a reasonable opportunity to be heard to contest the proposed deprivation.  Unless there is an emergency, the notice and opportunity to be heard must be given before the government deprives an individual or business of a liberty of property interest.  This is known as a pre-deprivation hearing.  Because of the clear contours of the right, procedural due process violations are typically easier to prove than substantive due process violations.

The first step in determining whether a procedural due process violation has occurred is to determine whether an individual or business has been deprived of a liberty or property interest.  Besides the obvious, what classifies as a liberty or property interest is a question of state law and, therefore, varies from state to state.  (An obvious property interest would be ownership in a building. In a case, that I brought against the City of Philadelphia for demolishing my client’s building without notice or an opportunity to contest the proposed demolition, the federal court easily found that a procedural due process violation occurred. Bullard v. City of Philadelphia (E.D. Pa., 2012))  Other not so obvious things that courts have concluded amount to a liberty or property interest include: zoning permits, building permits, business licenses, a contractor’s pre-qualification to bid on government contracts, and the general beneficial use of land.

The second step is determining whether a party have been given notice and an opportunity to be heard.  The notice the government provides must only be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Actual notice is not required.  The opportunity to be heard requires the government to provide an party to present objection to the proposed deprivation before it occurs.

While this may seem obvious and well-settled, local government actors frequently revoke licenses or cancel permits without a pre-deprivation hearing.  It happens quite frequently in cities like Philadelphia, despite being chastised by both state and federal courts for doing it.

A revoked permit or suspended business license can significantly damage a business even if done for a short period of time.  If its done with first having a hearing, an affected business could recover damages for a constitutional violation.