'Shocks the Conscience' Standard in Municipal Land Use Decisions
Barbara Anisko, Esq. (Kaplin Stewart Meloff Reiter & Stein)

On January 24, 2005, the Supreme Court of the United States denied the petition for certiorari filed in Lindquist v. Buckingham Township, No. 04-681, which had sought Supreme Court review of the Third Circuit Court of Appeals’ application of the “shocks the conscience” standard articulated by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), to substantive due process claims arising from municipal land use decisions. In Lindquist, James and Cora Lindquist, two aging farmers, struggled for six years to obtain development approval for their 240 acre farm. After luring Mr. and Mrs. Lindquist to give up a development plan complying with all ordinance provisions in favor of a plan purportedly favored by the Township but which did not strictly comply with all ordinance provisions, the Township, over a six year period, played a cat and mouse game with Mr. and Mrs. Lindquist and ultimately denied their development application.

 After their land development application was denied, Mr. & Mrs. Lindquist filed a mandamus action in state county court asserting that the Township violated state law in denying their application. The state county court, in a scathing opinion, containing over 200 separate findings of fact, determined that the Township, in processing Mr. & Mrs. Lindquist's land development application, acted in bad faith, violated a pre-existing state court order and Pennsylvania law. The state county court ordered the Lindquist’s preliminary subdivision plan approved.

Mr. & Mrs. Lindquist thereafter filed a cause of action in the federal district court for the Eastern District of Pennsylvania asserting that the Township’s conduct, in processing their land development plan, violated their right to substantive due process protected by the Fourteenth Amendment to the United States Constitution. The case was tried in the District Court, without a jury, under the then existing standard in the Third Circuit that a substantive due process violation is established if the municipal conduct is shown to have been undertaken in bad faith, with bias or with an improper motive.  However, after trial, but before the District Court rendered its decision, the Third Circuit Court of Appeals rendered its decision in United Artists Theatre, Inc. v, Warrington Township, 316 F.3d 392 (3rd Cir. 2003), reh’g denied 324 F.3d 133 (3rd Cir. 2003) holding the “shocks the conscience” standard is the proper standard to apply in evaluating substantive due process claims involving land use decisions and not the “bad faith, bias or improper motive” standard.  The District Court, in applying this heightened standard, while acknowledging that the Township “may have acted with an improper motive toward the Lindquists,” concluded that the Township’s “conduct was not so egregious as to ‘shock the conscience’.”  The Third Circuit Court of Appeals affirmed in a 2 to 1 decision.  In a lengthy, strongly worded dissent, however, Judge Rosenn disagreed with the Majority and the District Court.  Finding that the Township, for six years, had wasted Mr. & Mrs. Lindquist's resources and time, arbitrarily denied multiple versions of their development plan and flagrantly disobeyed a state court order, Judge Rosenn concluded that “such egregious conduct ‘shocks the conscience’ in a constitutional sense.” 

 The “shocks the conscience” standard is a subjective standard and as demonstrated in Lindquist, is incapable of uniform application in land use cases.  It is unlikely that any substantive due process claim in the land use context will be able to satisfy this heightened nebulous standard.  Notwithstanding, it appears that given the Supreme Court’s refusal to grant certiorari in the Lindquist case, the “shocks the conscience” standard is the standard by which substantive due process claims, even in the land use context, will be judged. [ return to top ]