Must Substantive Due Process Land Use Claims Be So “Exhaust”ing?

September 26, 2012

When is a land use dispute a federal case? Although some perceive challenges to zoning and land use laws as local issues ripe for local resolution, some fights over land use pose constitutional questions suitable for federal adjudication. Indeed, many zoning disputes implicate substantive due process, a federally protected constitutional guarantee. A circuit split has developed regarding when plaintiffs may assert substantive due process claims in federal court. While the First and Seventh Circuits only hear such cases when the plaintiff has first brought her substantive due process claim in state court, the Second, Third, Ninth, and Eleventh Circuits impose no such requirement. This Note argues that the First and Seventh Circuits’ state court litigation precondition is erroneous because this requirement is both unnecessary and inefficient.

October 2012

No. 1