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No.

2006AP450

the Club was improperly denied a conditional use permit, but the

case at hand is the B-2 zoning conditional use neither a taking

a facial substantive due process challenge to ordinance; this is not a challenge to the permit section of the ordinance, and it is s challenge nor an as-applied challenge. 25

25

taking

Anderson's American and substantive due

Law of process

Zoning distinguishes between

challenge.

It

provides:

a

between

taking claims

and

substantive

due process

claims.

As discussed

in

the previous

chapter, an

It

is

important

to

understand

the

difference

ordinance will be struck down, despite the presumption of validity for legislative acts, if it is found to be

unreasonable

or

arbitrary.

In

general,

a

zoning

ordinance or other police power land use must be reasonably related to serving

health, safety, or general restriction is unreasonable

welfare. If or irrational,

restriction the public a land use it may be

found to violate the substantive component of the

process clause. However, irrationality standard for evaluating a taking claim.

is

not

due the

The Supreme Court has added confusion matter by repeatedly stating in recent cases

to the that a

taking is established "substantially advance

if an ordinance legitimate state

does not interests

his land."

The

explained what

the

.

.

. or

denies

an

However,

writing

owner Court first for the economically viable use of has never satisfactorily part of the test means. majority in Nollan v.

California

Coastal

expressly

stated that

Commission, the taking

Justice test

Scalia requires

stricter review of government action "rational relationship" test applied to process and equal protection claims.

than most

the due

An important difference under the Constitution is that "just compensation" must be paid to the landowner

who has suffered violation does requirement. . .

.

a

taking.

A substantive due process

not

trigger

the

compensation

41

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