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Developers’ Rights and Due Process; Illegal Moratoria Do Not Give Rise to Section 1983 Civil Rights Claims

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”.

Matthew Hinks is a litigator with a wide-ranging practice that focuses primarily on the representation of real estate developers in difficult land use cases. Matt has extensive experience litigating complex mandamus actions and other claims involving signage disputes, governmental takings, CEQA challenges, planning and zoning law, civil rights violations, eminent domain issues, title disputes, lease disputes and community redevelopment and density bonus law. He has extensive experience in both federal and state courts, including trial courts and courts of appeal, as well as in arbitration, mediation and administrative settings. Contact Matt at or 310.201.3558.