The concept of Due Process in the United States flows from the Bill of Rights, as expressed by Amendment V to the U.S. Constitution: “…no person shall be… deprived of life, liberty or property without due process of law…” (emphasis added). This right is re-stated in many state constitutions as well.
The “due process clause” has been vigorously enforced in a long series of court decisions and legislative actions at the state and federal levels which collectively work to limit and set standards for any government actions that may affect personal liberties and private property rights.
In the practice of land use planning and zoning, due process issues are typically divided into two subsets: procedural due process and substantive due process.
Procedural Due Process
Procedural Due Process requires a minimum standard of fairness during the process of making public decisions that impact private rights. Relevant standards include proper public notice; a fair hearing presenting of all sides of an issue; reasonable and impartial standards for decision-making; accurate and accessible public records, and assurance that public decision-makers act without bias or conflict of interest including avoidance of exparte contact.
While some aspects of procedural due process can seem overly detailed or just technicalities, the importance of assuring procedural compliance cannot be over-emphasized. Violation of procedural due process is the most common way that planning and zoning decisions have been successfully challenged.
Substantive Due Process
Substantive Due Process tends to invoke more generalized requirements for planning and zoning decisions. Substantive due process protects private citizens against arbitrary or capricious public decisions. Substantive due process requires that regulations have a rational basis for their adoption, and are reasonably related to public health, safety and welfare concerns;
The requirement that zoning regulations be supported by a master plan that provides a sound rationale for regulation can be seen as an expression of substantive due process. For this reason an adopted plan is an important basis for zoning regulations, even in states where state law does not require zoning to be based on a plan.
Mary Ann Heidemann, Michigan State University