Cancelling teen dances at nightclub may violate due process

A proprieter in upstate New York opened a dance club called Fun Quest which immediately became a big hit with local teenagers, who overcrowded the place. Such a hit, in fact, that the Town Board amended the special use permit to prohibit teenage dances. As local officials debated what to do about this problem, the Town Supervisor allegedly made racial comments about Fun Quest's black patrons. The constitutional dispute wound up in the Court of Appeals, which held that Fun Quest has a case.

The case is Cine SK8 v. Town of Henrietta, decided on November 8. After the district court granted dismissed the case on summary judgment, the Second Circuit reinstated the case, outlining how parties in zoning disputes can prevail in a constitutional challenge. Here's what the Court of Appeals (Feinberg, Calabresi and Wesley) did:

1. On the substantive due process claim, Fun Quest arguably had a property interest in the permit which Town officials subsequently amended to prohibit teen dances. It's not easy to show a property interest in zoning cases (which is why many of these cases are sent to State court), but here, Fun Quest's property right was "vested" since it did receive the permit and also invested $2.3 million in renovations in reliance on that permit.

2. The due process claim is also viable because the government had arguably revoked the permit for arbitrary reasons. While this is also a difficult standard to meet, Fun Quest gets a trial on this issue because of the alleged racial animus which motivated the Town Supervisor to oppose the teen dances. What makes this case unique is the Second Circuit's holding that the improper views of one member of a municipal board can make the Town liable even if the rest of the board did not share those views. Unlike other courts, the Second Circuit "has never adopted the rule that a plaintiff must demonstrate that a majority of a public body acted with racial animus or in an otherwise unconstitutional maner in order for that plaintiff to hold the municipality liable for constitutional violations." Instead, to prevail, the municipality must prove that a majority of the board acted for legitimate reasons. In other words, the illicit views of one member creates a presumption that the entire board acted improperly. Not only does the Second Circuit's standard take into account the secretive nature of racism, but it comports with employment discrimination cases holding that the impermissible bias of one decisionmaker can infect the entire process. In this case, at least three members of the board used racial code words, i.e., "city kids," in opposing teen dancing at Fun Quest. That's enought for a trial on this issue.

3. Another reason the plaintiffs get a trial here is the irregular process leading up to the permit amendment. A planning dispute tainted by procedural irregularity is enough to show arbitrary treatment in zoning/due process cases. Here, the Town Board had no lawful authority to amend the permit (it can only suspend or revoke them) and the Board failed to provide Fun Quest any procedural rights at the hearing (such as cross-examination of hostile audience members or the chance to respond to incendiary allegations at the hearing). This allows the substantive due process claim to go forward at trial.