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
CONSTITUTIONAL LAW; SUBSTANTIVE DUE PROCESS;
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
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
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
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
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
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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