Because of my personal political persuasions (pro-freedom) and success in litigating cases against the government and other media about those cases businesses frequently approach me about bringing claims against local governments and agencies for interfering with their Constitutional rights.  Actions by local government agencies that could give rise to a Constitutional violation include: treating a developer’s project differently than a similar project, revoking a previously issued zoning or building permit, disqualifying a contractor from bidding on a government contract, retaliating against a business owner for speaking out against the local agency or one of its members, or unnecessarily delaying the issuance of a permit. The Constitutional rights most typically implicated in these cases are those guaranteed by the 5th and 14th Amendments to the United States Constitution.  However, the 1st Amendment is also frequently implicated.

Suing a local government agency for violating your Constitutional rights is not easy.  However, the federal statute under which the cases are brought, 42 U.S.C. Section 1983, provides for the award of a successful plaintiff’s attorneys fees.  This is true even if the Judge or jury awards a mere $1 is damages.  Moreover, sometimes there can be a strategic value in the litigation.

This is the first in a series of blog posts exploring claims available to businesses harassed by local government agencies and officials and the challenges inherent in successfully bringing those claims.  We will start with a claim for a substantive due process violation.

Under the 5th Amendment, businesses and individuals cannot be subject to arbitrary and capricious application of the law.  In other words, there must be some objective standards for a laws application.  Before 2003, substantive due process claims in the land use context were fairly common. a party could bring a substantive due process claim whenever there was an “improper motive” by the local government authority. However, the Third Circuit changed that standard in United Artists v. Township of Warrington, 316 F.3d 392 (3rd Cir., 2003), where it held that in land use cases, only those actions by a local government agency that “shock the conscious” could act as a basis for a substantive due process claim.  The Third Circuit’s rationale is that it did not want to turn the federal courts into a super zoning board.

While determining what actions meet the “shock the conscious” standard is fact sensitive, Courts in the Third Circuit have set a high bar for plaintiffs bringing substantive due process claims.  Under existing precedent, Courts in the Third Circuit have said the following could be conscious shocking:

  • corruption and self dealing;
  • fraudulent conduct;
  • personal animus towards the property or business owner; and
  • conduct that violates some other constitutionally protected right

A substantive due process claim is usually brought together with other claims such as an equal protection or procedural due process claim.  So, even if the facts do not a support a claim for a violation of substantive due process rights, a person or business may still have a constitutional claim.

Because substantive due process claims are fact sensitive, a business that feels that its substantive due process rights are being violated should start to create a record and document those actions that it believes amount to a substantive due process violation.  This record can then be used to defeat a motion to dismiss which likely will be filed by the defendants.