Monday, April 2, 2007
J. Peter Byrne (Georgetown University Law Center) has posted Due Process Land Use Claims After Lingle on SSRN. Here's the abstract:
The Supreme Court held in Lingle v. Chevron U.S.A., Inc., 125 S. Ct. 2074 (2005), that challenges to the validity of land use regulations for failing to advance governmental interests must be brought under the Due Process Clause, rather than the Takings Clause, and must be evaluated under a deferential standard. In this paper, Professor Byrne analyzes and evaluates the probable course of such judicial review. He concludes that federal courts will resist due process review of land use decisions for good reasons but not always with an adequate doctrinal explanation. He recognizes, however, a role for state courts using due process to provide state level supervision of local land use decisions in the absence of other legislative or administrative checks on local discretion. He argues that such judicial review should focus on decisions reflecting distortions in the local political process.
[Comments are held for approval, so there will be some delay in posting]