This article is reprinted with permission from the May 12, 2003, issue of The Legal Intelligencer.

In the land development process, public opposition, public pressure, and sometimes just plain animosity or ill-will can lead a municipality or other local government to deny a permit or approval for a land use project even though the landowner/applicant satisfies all of the conditions for, and is entitled to receive, the permit. Where this sort of wrongful denial has occurred, frustrated landowners often seek relief in federal court under 42 U.S.C. §1983 alleging a violation of substantive due process.

Such a violation occurs when (1) a person (in this case, the local government), (2) acting under color of state law (i.e., the local zoning or subdivision code), (3) denies the plaintiff a protected property right (the permit or subdivision approval), (4) in an arbitrary and capricious manner. It is this fourth element, whether the government's conduct is "arbitrary and capricious," that can often be the deciding factor in substantive due process cases, and it is this factor that has potentially been made more difficult to show by a recent 3rd Circuit decision in United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392 (3d Cir. 2003).