Whether executive land-use decisions may be challenged via substantive due process

QUESTIONS PRESENTED This case presents two questions involving efforts to expand the scope of the substantive component of the Due Process Clause. 1. Land-use regulation lies within the police power of the states and is typically exercised by municipalities. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-88 (1926). Municipalities make legislative land-use decisions when they enact zoning ordinances and other broadly applicable rules governing how people use property. Municipalities make executive land-use decisions in adjudicating permit and variance requests affecting particular people or parcels. A substantive due process claim lies to challenge legislative land-use decisions. Nectow v. City of Cambridge, 277 U.S. 183, 187-89 (1928). The Court should now address the unresolved question whether the same is true of executive land-use decisions. The Ninth Circuit holds that all land-use decisions are subject to substantive due process scrutiny; the Seventh and Eleventh Circuits disagree. 2. Government interference with an individual’s pursuit of a chosen profession raises due process concerns. Greene v. McElroy, 360 U.S. 474 (1959). The Court should clarify what claim may be brought to vindicate this occupational liberty interest—a substantive due process claim (as the Fifth and Ninth Circuits hold) or a procedural due process claim (as a majority of other circuits hold).