Eugene Mongeau v. City of Marlborough

(United States Supreme Court)

• Opposing Biased Land-Use Determinations

NELF and co-amicus National Association of Industrial and Office Properties, Massachusetts Chapter, filed a brief with the U.S. Supreme Court in support of the grant of certiorari in this case. The case involved the appropriate standard for review of government conduct in connection with land-use determinations challenged as violations of the substantive due process protections of the Fifth and Fourteenth Amendments to the United States Constitution.  Mongeau alleged that the respondent Commissioner of Inspectional Services for the City of Marlborough, Massachusetts, was biased against Mongeau for refusing to make a voluntary payment in exchange for permission to build and treated Mongeau’s building permit application and site permit review in a hostile and cavalier manner leading to excessive delays and a predetermined outcome.  There is a split in the circuits, with the U.S. Courts of Appeals for the First and Third Circuits requiring proof of government conduct that “shocks the conscience” before a property developer can prevail on a land-use-related substantive due process claim.  As NELF argued in its brief, this standard not only conflicts with that adopted by a majority of the federal Courts of Appeals, it also conflicts with that utilized by many state courts, including state courts within the First and Third Circuits.  NELF argued that this conflict allows forum shopping and runs contrary to the fair administration of justice.  Moreover, the test adopted by the First and Third Circuits imposes a burden that is virtually impossible to meet on those seeking redress from the courts for civil rights violations and contravenes the Court’s own substantive due process jurisprudence in land-use cases.  On January 19, 2008, the Supreme Court denied Mongeau’s petition for certiorari.