[Plan-link] Boulders at Strafford, LLC v. Town of Strafford
An interesting new Supremes opinion was released today. The Supremes established a new, weaker "rational basis" test for analyzing land use ordinances under substantive due process. Under the new test, substantive due process requires only that a land use ordinance be rationally related to a legitimate government interest.
The Supremes expressly overruled Metzger, which had applied a balancing test as to whether a land use ordinance unduly restricts fundamental property rights. (Metzger invalidated a frontage requirement as against the right to use and enjoy property, where the landowner had adequate frontage to ensure safe access). The Supremes also expressly stated that land use ordinances do not need to pass a "least restrictive means" analysis. In other words, it doesn’t matter if the government objective could be achieved through a much less burdensome approach.
In plain English, the Supremes have made it even easier for land use ordinances to pass due process challenges. Under the Supremes’s new analysis, a town could, I think, establish a 1000’ building setback from any natural features (forests, fields). The "legitimate government interest" would be aesthetics (the Supremes again expressly approve this as an objective). And setbacks are by definition "rationally related" to protecting the visual feature from which the setback is measured. Not narrowly tailored (if 1000’), but rationally related.
The Supremes take a good amount of bandwidth to chastise the lawyers in the case for mixing up the applicable standards. Apparently the landowner also, for some reason, neglected to make an equal protection challenge, which calls for a higher level of constitutional scrutiny. So what is left is a pure substantive due process case.
For what it’s worth, as a person who grew up in New Hampshire, it is remarkable that our Supremes do not find it in their hearts or minds to be more sensitive to property rights. For the land use ordinance drafters on this list, this case is good news.