Yes, the Due Process Clause covers property owners

We recently filed another brief asking a court to hold that the Fourteenth Amendment’s Due Process Clause protects property owners.  I say another brief because the question of what constitutes protected “property” for due process claims continues to come up in various cases that PLF attorneys are litigating.  The latest case on this important issue is Manna Funding, LLC v. Kittitas County.

The Due Process Clause says that no state shall deprive any person of property without due process of law.  Naturally, you first need to know whether a person had “property” before you can determine if the government unlawfully deprived her of it.  This is where courts sometimes trip up.  In Manna, the Washington Court of Appeals held that Manna Funding—the owner of a tract of land—could not sue for damages when Kittitas County arbitrarily denied Manna’s request for a rezone, because Manna did not demonstrate that it had a constitutionally protected property interest at stake in the rezoning process.

You might think that demonstrating a property interest in Manna’s case would be easy.  It is well-established that landowners enjoy a variety of legally protected property rights, including the right to use their property.  As the Washington Supreme Court put it, “The basic rule in land use law is still that, absent more, an individual should be able to utilize his own land as he sees fit.”  Furthermore, property owners who seek permission from the government to develop their property retain the “right to be free of arbitrary or irrational zoning actions,” according to the U.S. Supreme Court.  This applies to Manna, so what happened to Manna’s property rights in the state court of appeals?

Instead of acknowledging that Manna has a property interest deriving from its ownership of land, the Washington Court of Appeals looked to whether Manna had an “entitlement” to have its property rezoned.  The court found that there is no right to a rezone and therefore no property interest, but that misses the point.  A property owner who needs special permission to use her property is not seeking a government entitlement (like social security or welfare) that may or may not constitute a property “right.”  A property owner already has constitutionally protected property rights.  Obtaining a land use permit is merely the process that the owner must follow in order to exercise those rights.  The Seventh Circuit Court of Appeals said it well in River Park v. City of Highland Park: Zoning restrictions are not the measure of an owner’s property interest; they just create a set of rules restricting the exercise of preexisting property rights.

This does not mean that the government violates the Constitution every time it denies a land use permit.  However, it does mean that the Due Process Clause applies whenever a property owner seeks permission to use her property in a particular way, because the owner has a property interest in her land and enjoys the right to be free of arbitrary government decisions related to her permit application.