United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003), No. 98-CV-05556, 1/14/03:
United Artists had sought land development approval for a cinema multiplex in competition with another developer. The local market could support only one multiplex. The Township improperly demanded an annual impact fee of $100,000, which fee the competitor agreed to pay and United Artists refused to pay. United Artists claimed a substantive due process violation under 42 U.S.C. § 1983 because the township intentionally delayed action on its application for eighteen months (including an attempt to change conditions attached to preliminary approval), while it gave preliminary approval to the competitor’s application within one month of filing and final approval less than three months later.
In a Section 1983 action, the Court of Appeals for the Third Circuit held that the Supreme Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), in which it articulated a “shocks the conscience” standard for substantive due process claims, superceded Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988) and its progeny, which had established an “improper motive” standard. In Lewis, the Supreme Court explained that the “core of the concept” of due process is “protection against arbitrary action” and that “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’” In recognizing the Lewis standard, the Third Circuit opined that the meaning of the standard varies depending on the factual context. The Third Circuit further opined that “[l]and use decisions are matters of local concern and such disputes should not be transformed into substantive due process claims based only on allegations that government officials acted with “improper” motives.
In a strongly worded dissent, Judge Cowen disagreed with the application of Lewis to municipal land-use substantive due process cases. He noted that the case that begat the “shocks the conscience” test involved the forced pumping of the human stomach and that Lewis involved a high-speed police chase that resulted in a death. He chastised the majority for giving too little weight to well-established jurisprudence employing the improper motive test in the land use context, especially given that the Third Circuit had employed that test after the Lewis decision was handed down. He cautioned that the “shocks the conscience” standard “leaves the door ajar for intentional and flagrant abuses of authority” by local officials. Finally, he commented that local decisions “assume constitutional dimension when the calculated, intentional and deliberate abuse of government power is at hand.”
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