Petition — County Board of Arlington County v. Richards

Supreme Court brief1977

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MICHMEL RODAK, JR.

IN THE — .A.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

7681418

COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA,

BERT VW. JOHNSON, County Manager, and ROY McLAREN,

Chief of Police of Arlington County,

Petitioners,

RUDOLPH A. RICHARDS, MARIO A. CARBONI, FRANK

TOMEK, THOMAS BECK, BRAXTON H. TABB, JR., MICH.

ELLE McKENZIE, ELMER P. BORKOWSKI, ERNEST G.

WALLACE, JOSEPH F. BELFIORE, JR., CAROLYN BOL.

LING, HOWARD E. HURLEY, IR., JAMES MOTT, H.D.

MORRIS, GEORGE A. RISCILI, and RAY ELBERT PARKER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Jerry K. Emricn

County Attorney

Counsel for Petitioners.

CHARLES G. FLINN

Deputy County Attorney

1435 North Veitch Street

Arlington, Virginia 22201

(703) 558-2705

Counsel for Petitioners and

Counsel of Record.

Wastington, O.C. + THIEL PRESS - (202) 638.4621

(1)

TABLE OF CONTENTS

r céousnedosedeuneecs:

0 es casedee

QUESTION PRESENTED FOR REVIEW ........

STATUTES AND CONSTITUTIONAL PROVISIONS

UV VED ccc „...

STATEMENT OF THE CAS

REASONS FOR GRANTING A WRIT OF

A mmol.

I. The Virginia Supreme Court has Misconstrued

the Equal Protection Clause of The Fourteenth

ö States Throughout the County

Appendix E — United States Environmental Protec-

TABLE OF AUTHORITIES

Cases:

Akron v. Davies, III Ohio App. 103, 170 N.E.2d

Gee... vy „„ „„ „ „ „„ 0

Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99

Eat BF CEGRD ccccccccvccscesessceces

City of New Orleans v. Dukes, 427 U.S. 297, 96

(ii

Cases, continued: _Page

Commonwealth v. Sargent, 330 Mass. 690, 117 N.E.2d

SS 66:666 0666 eb060065000 0066660 6edece 19

Detroit Police Officers Ass'n v. City of Detroit, 190

N.W.2d 97 (Mich. 1971), Appeal dismised for

want of a substantial federal question, 405 U.S.

Suey Ge GER, BETS cccccccccccceceececccesess 20n

Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028,

Sp Es SP CURED cc cccecesccecccoeececees 14

Fishmen d. Massachusetts, Supreme Judicial Court of

Massachusetts No. 729 (1977)...... 7 „ „ „„ 60 2 0 19

Funeral Directors Ass'n v. Groth, 202 Va. 792, 120

eee. „eee eee eee 19

Georgetown Ass'n of Businessmen v. District of

Columbia, D.C. Civ. Action Nos. 7242-76 ........... 19

Goreib v. Fox, 274 U.S. 603, 47 S.Ct. 675 (1927)....... 14

Lochner u. New York, 198 U.S. 45, 25 S.Ct. 539,

U 15

Markham Advertising Co. v. State, 73 Wash. 2d 405,

439 P.2d 248 (1968), Appeal dismissed for want

of substantial federal question, 393 U.S. 316,

89 S.Ct. 553, 21 L.Ed.2d 512 (1969).............. 18n

Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1

Re GED GOST ccccccccscccceccceseeeess 13

Railway Express Agency v. New York, 336 U.S. 106,

69 S.Ct. 463, 93 L.Ed. 533 (1949 14

Silver u. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed.

II.... 14

South Terminal Corp. v. EPA, 504 F.2d 646 (Ist

Ar...... „. „„ eee eee eee 20

State v. Whisman, 24 Ohio Misc. 59, 263 N. E. 2d

Ge...... . .... „„ „eee eee ee 19

Town of Leesburg v. Tavenner, 196 Va. 80, 82

Be Be CORE s cccccccccceccssecesecesens 19

Village of Belle Terre v. Boraas, 416 U.S. 1, 94

S.Ct. 1536, 39 L.Ed.2d 797 (197 11. 12, 13, 17

(ui

Cases, continued: _Page

Village of Euclid u Ambler Realty Co., 272 U.S.

365, 47 S.Ct. 114, 71 L.Ed. 303 (1926)....... 10, 11, 12

Whalen v. Roe, U.S., 97 S.Ct. 869 (1977)....... 15

Williamson u. Lee Optical Co., 348 U.S. 483, 75

S.Ct. 461, 99 L.Ed. 563 (1959) eee ee eee 14, 16

Young v. American Mini Theatres, Inc., 427 U.S.

50, 96 S.Ct. 2440 (197) 11, 12, 13, 14, 17, 180

Positive Law:

U.S. Constitution Fourteenth Amendment, Section 1

WETTTTUTTINILILTIL TTT passim

28 U.S.C. 81257 (00 2

Zoning Ordinance of Arlington County, §29D....... 2. 3. 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA,

BERT W. JOHNSON, County Manager, and ROY McLAREN,

Chief of Police of Arlington County,

Petitioners,

RUDOLPH A. RICHARDS, MARIO A. CARBONI, FRANK

TOMEK, THOMAS BECK, BKAXTON H. TABB, JR., MICH.

ELLE McKENZIE, ELMER F. BORKOWSKI, ERNEST C.

WALLACE, JOSEPH F. BELFIORE, JR., CAROLYN BOL.

LING, HOWARD K. HURLEY, IK. JAMES MOTT, H.D.

MORRIS, GEORGE A. RISCILI, and RAY ELBERT PARKER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Petitioners, the governing body of Arlington County,

Virginia, the County's chief administrative officer and its

chief of police, ask that a writ of certiorari issue to review

a judgment of the Supreme Court of Virginia invalidating

one of the County's ordinances which classifies vehicles

for purposes of parking for repugnance to the Equal

Protection Clause of the Fourteenth Amendment to the

United States Constitution.

OPINIONS BELOW

The opinion of the Supreme Court of Virginia is

reported at 217 Va. 231 S.E.2d 231 and is appended

to this petition, as Appendix A (pp. la-13a, infra). The

letter opinion of the Circuit Court of Arlington County is

not reported. It is appended to this petition as Appendix

B (pp. 14a-22a, infra).

JURISDICTION

The judgment of the Supreme Court of Virginia (App.

C, pp. 23a-24a, in fra] was entered on January 14, 1977.

This Court has jurisdiction under 28 U.S.C. §1257(3).

QUESTION PRESENTED

Does a municipal ordinance restricting parking on the

streets of residential neighborhoods by non-residents who

have no purpose in the neighborhood except to use its

streets for parking when those streets are crowded with

parked cars violate the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitu-

tion?

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

“SECTION I. . Vo State shall... deny to any

person within its jurisdiction the equal protection of

the laws.”

Section 29.D of the Zoning Ordinance of Arlington

County, Virginia, entitled “Restriction on Parking in

Districts in Which Commercial and Industrial Uses Are

Not Permitted.” is et forth in Appendix D at pages

244-28, infra.

STATEMENT OF THE CASE

Arlington County, Virginia, is a small, densely popu-

lated community near the center of the metropolitan area

of Washington, D.C. A county in name and in form,

Arlington is otherwise like a suburban city, with

approximately 157,000 residents living in its 25.75

square miles in 1975.

In Arlington, as in many other communities, there are

residential neighborhoods that border or are very near

intensely used commercial and industrial districts. Streets

in these residential neighborhoods tend to be used

heavily, for travel and even more for parking, by those

who drive to and from their jobs in the nearby business

districts. When the streets of such a neighborhood

become overcrowded with cars parked by the commuters,

that neighborhood has a special problem that is not

shared by the average residential neighborhood. The cars

parked in the usual residential neighborhood are parked

there only because their drivers and passengers live or are

visiting or have business in the neighborhood.

Arlington reacted to this special problem faced by

some of its residential neighborhoods by adopting an

amendment to its zoning ordinance authorizing the

restriction of on-street parking in residential sections of

the County where specified conditions of parking

congestion obtain. The purposes of the amendatory

ordinance were expressly stated in its preamble to be:

“to reduce hazardous traffic conditions resulting

from the use of streets within areas zoned for

residential uses for the parking of vehicles by

persons using districts zoned for commercial or

industrial uses or the conditional uses allowed in

Special Districts under the Zoning Ordinance of

Arlington County; to protect those districts from

polluted air, excessive noise, and trash and refuse

caused by the entry of such vehicles; to protect the

residents of those districts from unreasonable

burdens in gaining access to their residences; to

preserve the character of those districts as residential

districts; to promote efficiency in the maintenance

of those streets in a clean and safe condition; to

preserve the value of the property in those districts;

and to preserve the safety of children and other

pedestrians and traffic safety, and the peace, good

order, comfort, convenience and welfare of the

inhabitants of the County.” (App. D, 25a.)

The County Manager is directed by the ordinance to

determine the residential areas where on weekdays of any

month more than 75 percent of the on-street parking

capacity is used and at the same time more than 25

percent of such capacity is used by operators of vehicles

whose destination is not the residential area itself but a

commercial or industrial area. When the tests which

establish these facts have been made, parking during

weekday business hours is restricted to vehicles displaying

permits and service and delivery vehicles. Permits are

issued to residents of the neighborhood for their own

cars licensed in the County, for cars or trucks of those

doing business with them and, to a limited extent, for

their visitors’ cars. (App. D, 26a-27a).

The Arlington residential neighborhood where this

parking permit ordinance was made effective is Aurora

Highlands. That neighborhood is near U.S. Route 1,

adjacent to a district of large office and commercial

buildings called Crystal City. After the required survey,

the County Manager designated a permit parking zone

consisting of just a few streets in Aurora Highlands. The

zone has 192 parking spaces along portions of three

streets containing 101 residences in 81 buildings. On the

occasion of the most thorough study, 188 of the 192

spaces were occupied, and the drivers and passengers of

—

156 of the parked vehicles were destined for Crystal City.

All but two of the 81 residential buildings have

driveways; but some of these had been added after the

Crystal City-induced parking congestion began in ie

1960's. (Va. Appendix, pp. 371, 373, 383 and 385.)

An action challenging the constitutionality of the

ordinance in its application in Aurora Highlands was

brought by a group of commuters who worked in Crystal

City, and most of them had been parking all day every

working day on the residential streets of Aurora

Highlands where the restriction was in effect. The

commuters alleged that the ordinance, among other

things, denied them the equal protection of the laws in

violation of the Fourteenth Amendment. Their suit was

brought in the Arlington County Circuit Court, which

held a trial. Plaintiffs sought to show at the trial either

that there were no such problems in Aurora Highlands as

the ordinance was designed to counteract or that the

problems were not caused by them and their fellow

commuter parkers. (Va. Appendix, frequently through-

out pp. 46-222.) Their evidence also went to the

availability and cost of commercial parking near their

jobs in Crystal City. (Va. Appendix, pp. 137-139.)

The County introduced evidence to demonstrate the

rational basis for the legislative judgment that (1)

problems of parking congestion caused by outsiders do

exist in neighborhoods which have the amount of parking

established as a prerequisite for the restrictions of the

ordinance (as such problems are conceded to have existed

in Aurora Highlands) and (2) that the resident parking

permit plan is an appropriate way to deal with them.

Wherever the record in the Virginia Supreme Court is boing

referred to, it will be referred to as the Va. Appendix.

The County introduced the testimony of residents of

the affe ted streets, land use planners, transportation

planners, and experts on air quality. The evidence tended

to show that, when streets became overcrowded with cars

that are in the neighborhood only to park, there is more

trash and refuse, more noise (especially in the early

morning), more likelihood of conflicts between residents

and parkers, more traffic and parking violations, more

problems of street cleaning and trash collection, more

difficulty for residents and their visitors getting in and

out of driveways and finding places to park near their

houses, a likelihood that residential streets may have to

be rebuilt to the higher standards of streets in commercial

areas, a threat to property values, a reduction in the

desirability of the neighborhood as a place for residential

and family values to be preserved and an aesthetic harm

to the neighborhood. There was evidence that in Aurora

Highlands these problems were reduced by a reduction in

the number of cars from outside parked on the streets.

(Va. Appendix, p. 347 for example.) Environmental and

transportation experts expressed their opinions that an

appropriate way to reduce air pollution is to reduce the

number of vehicle miles travelled and a way to do this is

to encourage the use of mass transit facilities and

discourage the use of cars for commuting by restricting

the supply of free parking near areas to which many

persons commute. At the time of the trial a proposed

Environmental Protection Agency order would have

required the County to control parking, and the

ordinance had been conditionally approved as a method

of meeting the EPA requirement. (Va. Appendix, pp.

256-293 and Defendant's Exhibit #1, App. E.)

The County’s position was that the ordinance had

worked and would continue to achieve its goals. This was

illustrated in part by the testimony of one of the

residents of the affected streets, a service station

operator, who told about the problems caused by the

excessive parking, the flood of trash and damage to

vehicles caused by vehicles squeezing into tight spaces,

saying at the time of trial:

“You'd have to be down there constantly every day

to see just what it was like. It was bumper to

bumper. You could hardly get in and out of the

driveways. The neighbors really seemed upset, to tell

you the truth. There was a lot of tension in the

neighborhood because of this. You know, the streets

were a lot dirtier then.” (Va. Appendix, pp.

340-41.)

When asked about the effect of the restriction, he said:

“Well, miraculously they're clear. You don’t have

the congestion that you did. They're cleaner. It’s

quieter. You don't hear them coming in the morning

like you did...

“You don’t see as many cigarette butts and the like

on the streets. It’s a lot cleaner, a lot quieter, and I

notice that the neighbors seem to be all getting

along better. This is kind of like somebody has

released all the pressure.” (Va. Appendix, p. 347.)

While reciting that it had “had the benefit of the

testimony of transportation experts, planners, ecologists,

a representative of the Environmental Protection Agency

as well as others,” the trial court made no findings on any

of the points at issue except as to the adequacy of

parking facilities at Crystal City. (App. B, p. 15a.) It

concluded broadly that the evidence did not show that

the classification made by the ordinance, which it

described as the creation of two classes—“those who

reside in the permit area, and those who do not“ bears

any reasonable relationship to the stated objectives of the

ordinance.” which it termed “laud[able].” (App. B. p.

21a.) That bare conclusion, unsupported by any interme:

diate findings, led the court to find violations of the duc

process clauses of state and federal constitutions and of

the Equal Protection Clause of the Federal Constitution.

It enjoined enforcement of the ordinance. (App. B. p.

22a.)

On the County’s appeal, the Virginia Supreme Court

disregarded the evidentiary record and treated the

question posed as one of law, that is to say as a question

of facial validity. (App. A, p. 5a.) Its conclusion was that

the objectives set forth in the statement of purpose of the

ordinance clearly “constitute a legitimate governmental

interest:” (App. A, 7a), but that in no circumstances

could an ordinance that created a class consisting of

residents and personal and business visitors to their

neighborhood on the one hand, and a class of non-

residents on the other be a valid means of furthering that

legitimate interest because the classification does not bear

the required “reasonable relation to those objectives”

(App. A, p. 12a.) The court, so concluding, found it

unnecessary to consider “arguments concerning ‘special’

legislation proscribed by... the Va. Const., or those

related to the due process and provileges and immunities

clauses of the Constitution of the United States for [it]

was of [the] opinion that this ordinance offends the

equal protection clause of the 14th Amendment.” and

again that “the ordinance on its face offends the equal

protection guarantee of the 14th Amendment.” (App. A,

pp. 5a-6a & 12a.) On that basis it affirmed the trial

court’s judgment.

REASONS FOR GRANTING THE WRIT

The decision below conflicts with the entire body of

law that has grown up around this Court’s application of

the Equal Protection clause to economic and social

legislation. It is important that the decision of the

Virginia Supreme Court be reviewed (and reversed)

because residents’ parking permit ordinances generally

similar to Arlington’s have been enacted or are being

considered in many communities. Debate as to the

wisdom (or the legality, under state law) of such

ordinances should not be clouded by any question of

their conformity with the United States Constitution

when there is no such question.

1. To say that this Court has not decided the

question which was decided below would be to show

contempt for the process by which lawyers reason from

the particulars of decided cases to general principles and

then back to the particulars of a new case. The particulars

of the Arlington County permit parking ordinance do not

differ in their legal significance from the particulars of

dozens of cases in which this Court has sustained

economic or social legislation against challenges based on

the Equal Protection Clause.

This does not mean that the Virginia Supreme Court

did not cite the usual language of interpretation, because

it said:

“The 14th Amendment does not forbid classifica-

tion in legislative enactments. Rather, it commands

that classification be reasonably structured to serve

a proper governmental interest. Classifications based

upon race, national origin, and alienage are suspect

and subject to strict judicial scrutiny and survive

equal protection attacks only when designed to

achieve an ‘important’, ‘overriding’, or ‘compelling’

governmental interest. [Citation omitted.] When the

basis is not suspect, the classification is constitu-

tionally permissible if the governmental objective is

‘legitimate’ and the classification bears a ‘reasonable’

or ‘substantial’ relation thereto.

* * *

“Classifications in municipal ordinances enjoy a

presumption of validity, but that presumption may

be ‘overcome by unreasonableness apparent on the

face of the ordinance’. [Citation omitted.] Clearly

the objectives stated here constitute a legitimate

governmenta! interest.“ (App. A, pp. 6a-7a.)

The court even said that the method chosen to deal with

the problem “may relieve the problem“, but then made

an ill-considered omission in the reasoning process and

jumped to the conclusion that the classification

amounted to invidious discrimination. This resulted in a

failure to apply the principles of interpretation which it

had quoted. If the Equal Protection Clause is to be

applied this way in every case where it is in issue before

the Virginia Supreme Court, then every new legislative

classification in Virginia can be classified as invidious or

not at the discretion of the state court and Virginians will

be told that their legislative enactments violate the

Federal Constitution on a different basis than has been

established by this Court.

The long standing acceptance by this Court of

regulations which try to create or preserve sanctuaries for

residences when those regulations have been attacked as

denying Equal Protection is the most obvious starting

point for a lawyer who must determine the general

principles which apply in this case. This is because the

goals of the Arlington County ordinance are the same

goals as have been approved in cases like Euclid v. Ambler

Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L. Ed. 303

(1926) which approved the exclusion of industries and

apartments from residential areas to keep them free of

“disturbing noises,” “increased traffic“, and the hazards

of “moving and parked automobiles” as well as to

provide “children [with] the privilege of quiet and open

spaces for play, enjoyed by those m more favored

localities.” Id. at 394, 47 S.Ct. at 120-21. (Emphasis

added.) Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99

I. Ed. 27 (1954) was not a zoning case, but it recognized

that the police power included “the power of the

legislature to determine that the community should be

beautiful as well as healthy, spacious as well as clean, well

balanced as well as carefully protected.” Id. at 33, 75

S.Ct. at 102-03. The importance of this power has been

more recently affirmed by the upholding of an ordinance

restricting the number of unrelated persons who might

live in a single family home because such ordinances by

restricting, among other conditions, the number of cars

which pass through a neighborhood and park there,

create a “sanctuary for people.” Village of Belle Terre v.

Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d

797 (1974) A fair-minded observer ought to be able to

reason that if a distinction between persons who are

related by blood or marriage and those who are not can

be made without invidiously discriminating, then a

distinction between persons who are parking on streets to

go to the residences abutting on those streets and persons

who are merely using those streets as parking lots and

proceeding to non-residential land use activities is equally

free from invidious discrimination.

The Court’s recognition that “a reasonable margin to

insure effective enforcement, will not put on a law,

otherwise valid, the stamp of invalidity” stated in Euclid

v. Ambler, supra at 388, 47 S.Ct. at 118, was also

reaffirmed by Village of Beile Terre v. Boraas, supra. This

principle should give reader of the case additional

confidence that a legislative body may make classifica-

tions in light of practical realities. Then too, Mr. Justice

Powell’s concurring opinion in Young v. American Mini

Theatres, Inc. 427 U.S. 50, 96 S.Ct. 2440 (1976)

(quoting with approval Mr. Justice Marshall’s dissent in

Village of Belle Terre, supra) makes it clear that the

Court will not find that debatable or controversial

classifications are prohibited by the Equal Protection

Clause when those classifications have been created to

protect the quality of life in residential areas and do

not have any basis in such categories as race, indigency

or alienage:

“Without stable neighborhoods, both residential and

commercial, large sections of a modern city quickly

can deteriorate into an urban jungle with tragic

consequences to social, environmental, and eco-

nomic values. While I agree with respondents that no

aspect of the police power enjoys immunity from

searching Constitutional scrutiny, it also is undenia-

ble that zoning, when used to preserve the character

of specific areas of a city, is perhaps ‘the most

essential function performed by local government

for it is one of the primary means by which we

protect that sometimes difficult to define concept

of quality of life.’ Village of Belle Terre v. Boraas,

[Citation omitted.] (Marshall. J. dissenting).“

Young v. American Mini Theatres Inc. supra at 80,

96 S.Ct. 2440, 2457 (Powell, J. concurring).

Just last term, the Court considered the particulars of

another case which helps to determine how the Equal

Protection Clause is being applied, and reaffirmed the

guiding principle of deference to legislative judgment in

drawing lines separating one class from another. In City

of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct.

2513, 2516-17 (1976), the Court said:

“When local economic regulation is challenged

solely as violating the Equal Protection Clause, this

Court consistently defers to legislative determina-

tions as to the desirability of particular statutory

discriminations. . . . Unless a classification trammels

fundamental personal rights or is drawn upon

inherently suspect distinctions such as race, religion,

or alienage, our decisions presume the constitu-

tionality of the statutory discriminations and re-

quire only that the classification challenged be

rationally related to a legitimate state interest.”

The holding of the case is as significant as the foregoing

statement of the governing principle. The Court sustained

a New Orleans ordinance that, by a grandfather clause,

gave two long-time pushcart operators a monopoly of the

pushcart business in the French Quarter. In doing so, the

Court overruled Morey v. Doud, 354 U.S. 457, 77 S.Ct.

1344, 1 L.Ed.2d 485 (1957), the only case in decades in

which the Court has held that ordinary state or local

legislation dealing with business affairs denied someone

the Equal Protection of the laws.

If it is objected that the Arlington parking ordi-

nance is not “local economic regulation” but some-

thing else, it ought to be enough to refer again to

Village of Belle Terre v. Boraas, supra, where the issue

was the validity under the Equai Protection Clause

of an ordinance that limited the number of unrelat-

ed persons who could live together in a single fam-

ily house. In deciding that there was no denial of

Equal Protection, the Court included “social legisla-

tion“ with the economic legislation that is the more usual

subject of Equal Protection challenges which fail. It said

that in the case of “economic and social legisla-

tion .. . legislatures have historically drawn lines which

we respect against the charge of violation of the Equal

Protection Clause if the law be ‘reasonable, not arbi-

trary’... and bears ‘a rational relationship to a | permissi-

ble] state objective.“ Id. at 8, 94 S.Ct. at 1540. The

purpose of the Belle Terre ordinance was similar to that

of the Arlington ordinance, to preserve the quality of

residential life by protecting, “[a] quiet place, where

yards are wide, people are few, and motor vehicles

restricted.“ Id. at 9, 94 S. Ct. at 1541. Young v. American

Mini Theatres, Inc. supra, also sustained, against First

Amendment and Equal Protection challenges, an ordi-

nance that drew a line between so-called adult motion

picture theaters and others and restricted where the

former could be operated. The prevailing opinion there

did not treat the ordinance as economic regulation but

said that the city’s interest in attempting to preserve the

quality of urban life is one that must be accorded high

respect” and that the city must be allowed a reasonable

opportunity to experiment with solutions to admittedly

serious problems.“ Id. at 71, 96 S.Ct. at 2440. Neither

the prevailing opinion nor the concurring opinion treat

this as any different from economic regulation. In

addition, the economic regulation in City of New Orleans

v. Dukes, supra, is all but indistinguishable from

regulations promoting the quality of life because it was

presumed by the Court to reach its economic goal by

enhancing the tourist-oriented charm of the French-

Quarter of New Orleans /d. at 299, 96 S.Ct. at 2516.

The cases that stand for and apply the general standard

of deference to rational legislative judgments about where

to draw the line in regulating such matters as businesses,

professions, living arrangements, buildings and motor

vehicle traffic are numerous. See Ferguson v. Skrupa, 372

U.S. 726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93

(1963), Williamson v. Lee Optical Co., 348 U.S. 483,

488-490, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Goned

v. Fox, 274 U.S. 603, 607, 47 S.Ct. 675, 676 (192).

The motor vehicle is a frequent object of such remedial

legislation. The use of the automobile as an instrument

of transportation is peculiarly the subject of regulation.”

Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74

L.Ed. 221 (1929). The Court has been deferential to

legislative judgments embodied in such regulation. In

Railway Express Agency v. New York, 336 U.S. 106, 69

S.Ct. 463, 93 L.Ed. 533 (1949), a New York City

ordinance prohibiting the operation of vehicles carrying

advertising other than of the vehicle operator’s own wares

was upheld on the theory that it was a traffic safety

measure. In rejecting an Equal Protection challenge, the

Court accepted New York's traffic-safety justification of

its ordinance and a further assumption that a rational

legislative judgment might have been made that general

advertising on a delivery truck was more distracting to

other motorists and pedestrians and therefore more of a

traffic hazard than advertisements of one’s own wares.

The Arlington ordinance deals in a realistic, not

fanciful, way with an admittedly serious problem, and it

does not leave its purpose to conjecture. The problem is a

particular aspect of the general problem of motor vehicle

traffic congestion. The evils that result from allowing

residential neighborhoods to be burdened with commuter

parking are set out in the ordinance. The Virginia

Supreme Court concluded, as it must, that eliminating

these evils was a legitimate governmental objective. (App.

A, p. 7a.) It is self-evident that prohibiting commuter

parking is rationally calculated to achieve that objective.

Arlington proved at trial the rational relationship of the

means to the end, though the point scarcely needed

proof, and it proved also that the ordinance had worked,

though such proof is by no means essential to the validity

of the ordinance. As for the commuters’ evidence at trial,

even if they showed that the ordinance had been a

failure, that it was wholly unnecessary Which they did

not such a showing would be relevant, as this Court

indicated just the other day, only if Lochner v. New

York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905),

were still good law. In Whalen v. Roe, S

97 S.Ct. 869, 875, (1977) the Court said that, contrary

to the holding of Lochner, “State legislation which has

some effect on individual liberty or privacy may not be

held unconstitutional simply because a court finds it

unnecessary, in whole or in part.”

The court below saw only a general parking problem as

the object of concern in the Arlington ordinance. It said:

“Local governments have a legitimate interest in

regulating the cause of the manifold problems which

result from parking congestion. But the cause of

such problems is the use of public streets by

motorists in general, wherever they live or work. A

regulation which treats the cause by favoring the

motorists who happen to reside along a public street

at the expense of those who live elsewhere may

relieve the problems, but solutions achieved at the

ice of invidious discrimination are too dear.”

(App. A, | la-12a.)

This view of the problem has led the Virginia Court to

ignore the permissibility of a step-by-step approach. If

the Arlington ordinance is seen as one which attacks the

general problem of parking congestion, it would not be a

Constitutional objection that it deals with only one class

of parkers. Williamson v. Lee Optical of Oklahoma, supra

at 489, 75 S.Ct. at 465. The legislature could conclude

that the phase of the problem of parking congestion it

wished to attack first was the particular problem of

congestion found only where residential neighborhoods

have been overcrowded with parked cars from outside the

neighborhood. If the problem is not seen as the general

problem of parking congestion, then it is not necessary

here to invoke such cases as these sustaining the

Constitutionality of dealing with one cause of a problem

at a time. The problem sought to be resolved by the

Arlington ordinance can be seen as a problem special to

residential neighborhoods affected by commuter parking.

The Arlington ordinance does not need to be read as one

concerned with congestion generally or with all kinds of

congestion. Rational legislative responses to the multiple

problems of traffic and parking congestion will of course

vary with areas and circumstances. In business districts,

for example, limited-time parking enforced by parking

meters, along with bus zones, taxi zones and loading

zones may be the appropriate response.

When a residential neighborhood is subject to being

crowded by cars from outside, there are, broadly, only

three choices for the responsible governing body; (1) to’

leave parking unrestricted with the risk that the quality

of the neighborhood residents’ life will be degraded; (2)

to restrict all parking and by doing so put a new burden

on those using the residential area itself—a burden the

ordinary residential area does not have and a burden that

could destroy neighborhoods whose residences have no

driveways or garages; or (3) to restrict parking and except

from the restriction vehicles that are parked on the

streets in connection with the use of property abutting

on the streets where the restriction is in effect.

There is no guidance given by any reported case which

shows how the third solution works an “invidious

discrimination.” The commuter has no right to park all

day every business day in any residential district. Those

excepted from the restriction are those who most need to

use residential streets for parking, just as taxis, buses and

trucks need to use taxi zones, bus stops, and loading

zones—or just as those who have a special need to park on

the streets around the Capitol and the building that

houses this Court, may park there by permit to the

exclusion of others. For most of us, free parking on a

street convenient to our jobs is not seen as a right and

rarely reaches the level of a reasonable expectation. Such

a “right” cannot be seriously compared with the

“fundamental personal rights” mentioned in City of New

Orleans v. Dukes, supra or the First Amendment rights of

speech and association raised by the litigants in Young

and Belle Terre. Just as state statutes may permit

highway billboards to advertise businesses located in the

neighborhood but not elsewhere,” so also there is nothing

inherently “invidious’. in a classification that permits

parking on the streets of a neighborhood when the person

parking is using that neighborhood but forbids parking on

the streets of a neighborhood when the destination of the

person parking is elsewhere. It is not remotely like

“suspect classifications such as race, religion, or alien-

age. that the Court recognized in Dukes may call for

stricter than usual equal protection scrutiny.

2. Many communities throughout the country have

acted or are considering acting as Arlington has to protect

some of their residents from the threats to their health,

safety, comfort, convenience and dignity that are posed

by having cars jammed into the parking places in front of

their houses all day every working day. Counsel for

petitioners know of similar ordinances in Boston and

Cambridge, Massachusetts; Wilmington, Delaware; San

Francisco, California; Montgomery County, Maryland;

Richmond and Charlottesville, Virginia; and the District

of Columbia. The Cambridge and District of Columbia

ordinances are the subject of judicial challenges compara-

ble to the Crystal City commuters’ complaint in this case.

The Cambridge case is pending on appeal to the Supreme

"Markham Advertising Co. v. State, 72 Wash. 2d 405, 439

P.2d 248 (1968) appeal dismissed for want of a substantial federal

question 393 U.S. 316, 89 S.Ct.553, 21 L.£d.512 (1969), where

the Washington court said:

“A factual distinction exists between signs advertising

activities conducted on the premises and signs advertis-

ing activities being conducted off-premises, because

on-premises signs are part of the on-premises business

not otherwise related to activities conducted on the

land.” Jd. 439 P.2d at 256.

Young v. American Mini Theatres, Inc. supra at 68, 96 S.Ct. at

2440 cites Markham as authority for its acceptance of the class

fication distinguishing advertising of businesses in the neighbor-

hood of the sign and those clsewhere.

a — —2E—äꝓ—:ͤ7ü

»»‚„ẽH5k n; «ꝝ!ñé0 m T11½b u

Judicial Court of Massachusetts from a decision uphold-

ing the ordinance. Fishman v. Massachusetts, No. 729. In

the District of Columbia litigation, a judge of the

Superior Court has issued a preliminary injunction against

residents’ permit parking in Georgetown and surrounding

neighborhoods. Georgetown Ass'n of Businessmen v.

District of Columbia, Civ. Action Nos. 7242-76 et al. In

the only other reported decision of which we are aware, a

common pleas court in Ohio invalidated a residential

parking ordinance with some points which are compara-

ble to Arlington's. State v. Whisman, 24 Ohio Misc. 59,

263 N.E.2d 411 (1970). Other kinds of parking

classifications have been upheld, although the Virginia

Supreme Court did not find helpful the cases of Akron v.

Davies, 111 Ohio App. 103, 170 N.E.2d 494 (1959),

which upheld a prohibition on on-street parking around

public buildings by all except publicly owned vehicles;

Commonwealth v. Sargent, 330 Mass. 690, 117 N.E.2d

154 (1953), which upheld an on-street parking prohibi-

tion in the area of the State Capitol for all except

members of the state legislature; Town of Leesburg v.

Tavenner, 196 Va. 80, 82 S.E.2d 597 (1954), which

upheld a prohibition of on-street parking for all except

common carriers and commercial vehicles; and Funeral

Directors Ass'n v. Groth, 202 Va. 792, 120 S.E.2d 467

(1961), which upheld a prohibition of on-street parking

during funerals for all but those participating in the

funerals. The classifications of these cases were distin-

guished because “in none was the classification based

upon residence”. (This is the kind of specious differentia-

tion which is very disappointing to persons trying to

interpret the Equal Protection Clause. There is no

principle of interpretation which says residence“. is a

forbidden basis of classification.*) In each of the

Sin some cases concerning residence the decisions are very

much to the contrary. For example, a requirement that city

[footnote « ontinucd|

foregoing cases, unlike the instant case, people other than

government workers, legislators, funeral attendees, com-

mercial vehicle operators and common carriers who also

wished to park in the area because of the “activities

conducted on the land“ adjoining the streets on which

they wished to park were prohibited from parking. Thus,

the classification of the instant case is more inclusive than

those of the cases distinguished by the lower court,

because in the Arlington case all who use the residential

area are permitted to park there.

A number of the current ordinances are like Arling-

ton’s in that they have been adopted or are being

considered to some degree in response to Environmental

Protection Agency plans to improve air quality by

controlling automobile traffic. On review of such a plan

for Metropolitan Boston, the Court of Appeals for the

First Circuit considered a part of the plan that would ban

on-street parking and restrict off-street parking during the

morning commuting hours in the Boston core area. Quite

to the contrary of the state courts of the District of

Columbia, Ohio and Virginia, this iederal court said that

it approved the plan only on EPA’s representation that

residential parking spaces and certain other spaces were

exempt from the on-street parking ban. In addition, the

court said that off-street facilities could be separated

between residential and commercial parkers so that the

former could remain parked during the restricted hours.

South Terminal Corp. v. EPA, 504 F. 2d 646, 671-72 (Ist

Cir. 1974). Surely this federal court is correct in its

judgment that a parking preference for residents is not

employees and police officers maintain residences in the locality of

their employment was upheld against an argument that it denied

Equal Protection Detroit Police Officers Ass'n v. City of Detroit,

190 N.W.2d 97 (Mich. 1971) appeal dismissed for want of a

substantial federal question 92 8 Ct. 1173.

only appropriate but may be necessary to make a parking

restriction program reasonable, and the state court judges

are wrong in believing that the United States Constitution

prevents a local governing body from putting such a

preference in a parking control plan.

CONCLUSION

The Arlington ordinance is a practical and down-to-

earth solution to a hard problem, and it is easy to argue

not only that it is a permissible classification, but that it

is a wise one. The petition should be granted. As noted

above, the Virginia Supreme Court treated the question

before it as one of law to which the record made in the

Circuit Court was irrelevant. We agree that the case may

be decided based on the conceivable basis for the

legislative action (although the case for the ordinance is

given additional weight by the evidence actually pre-

sented at trial). Because there is one or more than one

conceivable basis on which to uphold the ordinance

without considering the evidence introduced at trial, this

Court does not need to refer to any substantial record in

deciding the case. The authorities are familiar to the

Court. In the circumstances we suggest to the Court that

the appropriate disposition of the case may be summary

reversal of the judgment below.

Respectfully submitted,

Jerry K. EMRicH

County Attorney

Counsel for Petitioners.

CHARLES G. FLINN

Deputy County Attomey

1435 North Veitch Street

Arlington, Virginia 22201

(703) 558-2705

Counsel for Petitioners and

Counsel of Record.

APPENDIX

APPENDIX A

COUNTY BOARD OF ARLINGTON

COUNTY et al.

Rudolph A. RICHARDS et al.

Record No. 760056.

Supreme Court of Virginia.

Jan. 14, 1977.

Charles G. Flinn, Deputy County Atty.

(Jerry K. Emrich, County Atty., on briefs),

for appellants.

Herbert C. Harper, Fairfax (Ray Elbert

Parker, pro se, on brief), for appellees.

Arlington Chamber of Commerce

(Charles McDonnell Radigan, Barham, Ra-

digan, Suiters & Brown, Arlington, on

brief), amicus curiae, for appellants.

Before CARRICO, HARRISON, COCH-

RAN, HARMAN, POFF and COMPTON,

JJ.

POFF, Justice.

Appellants! challenge the trial court's

judgment declaring a county ordinance au-

thorizing permit parking on certain public

streets unconstitutional as applied to appel-

lees.?

On May 18, 1974, County Board of Ar-

lington County amended and reenacted § 29

D of its zoning ordinance. The preamble

stated the legislative purpose to be:

to reduce hazardous traffic con-

ditions resulting from the use of streets

within areas zoned for residential uses for

the parking of vehicles by persons using

districts zoned for commercial or industri-

al uses or the Conditional Uses allowed in

Special Districts under the Zoning Ordi-

nance of Arlington County; to protect

those districts from polluted air, excessive

1. County Board of Arlington County, Bert W.

Johnson, County Manager of Arlington County,

and Roy McLaren, Chief of Police of Arlington

County.

2. Rudolph A. Richards, Mario A. Carboni,

Frank Tomek, Thomas Beck, Braxton H. Tabb,

Jr., Michelle McKenzie, Elmer P. Borkowski,

Ernest G. Wallace, Joseph F. Belfiore, Jr., Caro-

lyn Bolling, Howard E. Huriey, Jr., James Mott,

H. D. Morris, George A. Riscili and Ray Elbert

Parker.

noise, and trash and refuse caused by the

entry of such vehicles; to protect the

residents of those districts from unrea-

sonable burdens in gaining access to their

residences; to preserve the character of

those districts as residential districts; to

promote efficiency in the maintenance of

those streets in a clean and safe condi-

tion; to preserve the value of the proper-

ty in those districts; and to preserve the

safety of children and other pedestrians

and traffic safety, and the peace, good

order, comfort, convenience and welfare

of the inhabitants of the County.”

The county manager was empowered to

implement § 29 D (hereinafter, the ordi-

nance) in those residential areas in which he

determined that “on the weekdays of any

month” 75% of street parking capacity was

filled and more than 25% of capacity was

being occupied by “operators of vehicles

using districts in which commer-

cial or industrial uses are permitted”. In

such residential areas, parking privileges

were restricted to “service or delivery vehi-

cles” and vehicles displaying permits.

Parking permits were to be issued to “per-

sons who are residents” of a restricted zone

for “every vehicle owned by those persons

and registered in the County”; “persons

who are visitors of any residents”; and

“persons who do business with any resi-

dents”. Parking violations were declared

unlawful.

Aurora Highlands, a residential communi-

ty consisting largely of single-family homes,

is located aiong State Route 1 opposite

“Crystal City”, a complex of high rise office

and commercial buildings where 20,000

workers are employed. Based upon an en-

gineering study, the county manager desig-

nated a portion of Aurora Highlands as a

permit parking zone. The zone embraced

81 buildings containing 101 residences and

192 parking spaces along portions of three

streets. All but two of the single-family

homes had off-street parking facilities.

Appellees were employed in Crystal City.

Most commuted to work by automobile and

parked on streets in Aurora Highlands.

When the permit zone was established, they

filed two motions against appellants seek-

ing a declaratory judgment that the ordi-

nance, as applied to them, denied them due

process of law and equal protection of the

laws, and praying for an injunction against

its enforcement. The two motions were

consolidated for trial, and the trial court,

sitting without a jury, heard evidence ore

tenus.

By final order entered September 16,

1975, incorporating a letter opinion dated

June 18, 1975, the trial court found that the

classification bears no “reasonable relation-

ship to the stated objectives”, ruled that

“the classification is arbitrary

and unreasonable”, and declared that “the

application of the ordinance to the petition-

ers is found to be violative” of their rights

to due process and equal protection of the

laws. The trial court decreed that appel-

lants be “enjoined permanently from en-

forcing the provisions of _ [the

ordinance] against the petitioners“.“

On brief, appellants posed the question:

“Is the ordinance as it is applied to the

appellees who are denied permits, a denial

of due process or

equal protection At bar, how-

ever, both parties agreed that the effect of

the final order was to declare the classifica-

tion arbitrary and the ordinance unconstitu-

tional on its face, and we will consider the

question in that posture.

We find it unnecessary to address argu-

ments concerning special legislation pro-

scribed by Article IV, § 14 of the Va.Corst.,

3. In the court below, the Board of Supervisors

of Prince William Courty filed a brief amicus

curiae in support of appellees but did not ap-

pear on appeal. Arlington Chamber of Com.

merce moved this Court for leave to file a brief

amicus curiae in support of appellants, and we

granted the motion.

or those related to the due process and

privileges and immunities clauses of the

Constitution of the United States, for we

are of opinion that this ordinance offends

the equal protection clause of the 14th

Amendment.

{1-3} The lach Amendment does not

forbid classification in legislative enact-

ments. Rather, it commands that classifi-

cation be reasonably siructured to serve a

proper governmental interest. Classifica-

tions based upon race, national origin, and

alienage are suspect and subject to strict

judicial scrutiny, and survive equal protec-

tion attacks only when designed to achieve

an “important”, “overriding”, or “compel-

ling” governmental interest. Sandiford v.

Commonwealth, 217 Va. 117, 225 S.E.2d 409

(1976). When the basis is not suspect, the

classification is constitutionally permissible

if the governmental! objective is “legiti-

mate” and the classification bears a “rea-

sonable” or “substantial” relation thereto.

This is true even when the basis of the

classification involves First Amendment

guarantees. Young, Mayor of Detroit v.

American Mini Theatres, Inc., US.

, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976);