Ultra Vires Land Use Regulations: A Special Case in Substantive Due Process

Pacific Legal Foundation Program for Judicial Awareness Working Paper Series No. 13-515

19 Pages Posted: 28 Jul 2013 Last revised: 31 Aug 2013

Date Written: July 26, 2013

Abstract

The U.S. Supreme Court's land use jurisprudence establishes that arbitrary land use regulations violate the doctrine of substantive due process. Ultra vires land use regulations – those regulations that exceed the delegated authority of the regulating agency under state law – represent a particular type of arbitrary land use regulation. Lower federal courts that have examined such regulations are split on the question whether they violate substantive due process. This article contrasts two federal Court of Appeals cases in which property owners alleged that a local government agency deprived them of property without due process of law by enforcing an ultra vires land use regulation against them. The article concludes that, consistent with Supreme Court precedent, ultra vires land use regulations must violate the substantive due process rights of the individuals whom they affect.

Keywords: land use, substantive due process, constitutional law

JEL Classification: K11

Suggested Citation

Himebaugh, Daniel A., Ultra Vires Land Use Regulations: A Special Case in Substantive Due Process (July 26, 2013). Pacific Legal Foundation Program for Judicial Awareness Working Paper Series No. 13-515, Available at SSRN: https://ssrn.com/abstract=2298720 or http://dx.doi.org/10.2139/ssrn.2298720

Daniel A. Himebaugh (Contact Author)

Pacific Legal Foundation ( email )

10940 NE 33rd Place
Suite 210
Bellevue, WA 98004
United States

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