Daily Development for Tuesday, May 6, 2003
  by: Patrick A. Randolph, Jr.
  Elmer F. Pierson Professor of Law
  UMKC School of Law
  Of Counsel: Blackwell Sanders Peper Martin
  Kansas City, Missouri

  CONDITIONAL ZONING APPROVAL: When a municipal zoning
  board imposes housing requirements on a university to encumber the
  flow of students residing in surrounding neighborhoods, the university's
  substantive due process is violated only if the university establishes a
  protected property interest and the zoning board's conduct is egregious.

  George Washington University, a Federally Chartered University v.
  District of Columbia, a Municipal Corporation, et al., 318 F.3d 203
  (D.C. Cir. Feb. 4, 2003).

  This appeal concerns a dispute between a university ("University") and
  a municipal zoning board ("Board") concerning conditions imposed by
  the Board on the University's housing system, in order to preserve the
  character of the neighborhoods surrounding the University and control
  the encroachment of University students into those neighborhoods.  The
  zoning scheme established by the Board was that university use itself
  was a permitted use in high density residential zones.   In residential
  zones, university use requires a conditional use permit (called here
  "special exception.")

  The process for obtaining the special exception use is twofold.  First,
  the university must submit a "campus plan" setting forth new uses
  planned by it over a substantial period into the future.  The Board then
  may set conditions that limit the proposed uses under the plan to
  "minimize the impact of the proposed development."   Then, in the
  second stage, when a specific use is proposed for an identified property,
  the Board evaluates it for consistency with the campus development
  plan as well as with regular zoning requirements.

  The court commented that in both stages of the process, the Board has
  "substantial, but not unbounded" discretion under the ordinance.  It is
  instructed to take steps to protect the neighborhood from "noise, traffic,
  number of students, or other objectionable conditions."  (Yes - "number
  of students.")

  In its review of a ten year plan submitted in late 1999, the Board
  imposed conditions designed to minimize the number of students that
  resided outside the campus boundaries per se.  It required the university
  to house freshman and sophomores on campus and to provide on-
  campus housing for at least 70% of its students.  Further, it imposed an
  enrollment cap based upon the housing capacity.  This action was
  challenged and overturned at the District Court level, and the Board
  responded by changing its requirements to lift the enrollment cap and
  to apply the 70% requirement only to the existing undergraduate
  enrollment.  Any future additional undergraduates also had to be housed
  either on campus or outside the residential neighborhood surrounding
  the campus ("Foggy Bottom.")

  The university again challenged the Board, and the trial court found that
  the housing restrictions violated the university's substantive due
  process rights.

  On appeal: held: reversed.

  The court noted that under the interpretation followed by a substantive
  due process right does not exist unless there is a property right
  jeopardized by the challenged action.  It found that the University held
  a property interest here in the use of its property under the zoning rules.
  It noted that the approach adopted by the Second, Fourth, Eighth, Tenth
  and Eleventh Circuits focuses on the degree of discretion exercised by
  state officials in granting or withholding permission of use of land as a
  special exception.  The Third Circuit would apply substantive due
  process rights more broadly to every landowner.  The court concluded
  that it was not required to choose between the two approaches, because
  in this case the ordinance granted discretion to the Board limited to a
  determination if the University meets the criteria for use as a special
  exception (even though, within those limitations the discretion was
  quite broad.) Thus, there was a property entitlement here.

  The court noted, however, that even if a property interest is found,
  substantive due process constrains only egregious government
  misconduct.  Egregious misconduct is identified by a"substantial
  infringement of state law prompted by personal or group animus," or "a
  deliberate flouting of the law that trammels significant personal or
  property rights."

  The University argued that a violation of local law by the Board,
  barring discrimination in certain types of real estate transactions,
  constituted "group animus."  The D.C. Circuit held that even if the
  Board violated a local law, no automatic substantive due process
  violation exists, and the University did not show deprivation due to
  "group animus."

  The University also failed to show a "deliberate flouting of the law that
  trammels significant personal or property rights."  The court found the
  conditions imposed do not act as punitive measures, and instead create
  incentive for the University to comply with the housing provisions.

  Finally, the application process for special exception use unique to
  university landowners is not facially unconstitutional.  Universities do
  not constitute a "special class," and thus legislation need only group the
  persons it affects in a manner "rationally related to legitimate
  governmental objections."  Universities are large entities that make
  intense use of land and have a great spillover effect on surrounding
  neighborhoods.  The Board's imposition of housing conditions on the
  University in connection with the issuance of a special use exception
  are rationally related to the objective of preserving the character of the
  neighborhoods surrounding the University.

  Comment: By specifically targeting students, is the Board getting
  caught up in a "freedom speech" or "freedom of assembly" issue?
  What is it about students that justifies the board in prohibiting large
  congregations of students while not imposing (or even having the power
  to impose) controls on large congregations of persons who are not
  students?  Maybe the answer is that the "university" use is a specially
  permitted use to begin with, and that other uses that might involve large
  congregations of people are restricted from the outset.  But is that true?
  If the university abides by the same housing density requirements that
  all other landowners in the area follow, is it constitutional to prohibit
  only the university's housing activity?  The editor believes that a clearer
  foundation must be lade for the proposition that students are a
  particularly odious class of people that the public interest justifies
  restricting in special ways.

Readers are encouraged to respond to or criticize this posting.

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