Amicus Brief — County Board of Arlington County v. Richards

No. 76-1418 | ’

Ia aeRO Rene: ene eh ae

Fetters:

In the Supreme Court of the Vnited States

Octoser Term, 1976

COUNTY BOARD OF ARLINGTON COUNTY,

VIRGINIA, ET AL... PETITIONERS

Vv.

Rupoten A. RICHARDS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COUPT OF VIRGINIA

MEMORANDUM FOR THE UNITED STATES

AS AMICUS CURIAE

Wape H. McCree, Jr..

Solicitor General,

James W. MoorMan.,

Acting Assistant Attorney

General,

FRANK H_ EASTERBROOK,

Assistant to the Solicitor General,

EDMUND B. CLARK,

Micnaet D. Graves,

New T. Provo,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

ES ee SS

In the Supreme Court of the United States

Octoner Term, 1976

No. 76-1418

County BoarD oF ARLINGTON Coun sy,

VIRGINIA, ET AL., PETITIONERS

V.

Riupoten A. RICHARDS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

MEMORANDUM FOR THE UNITED STATES

AS AMICUS CURIAE

QUESTION PRESENTED

Whether an ordinance excluding certain non-residents

from parking on the streets of residential neighborhoods

violates the Equal Protection Clause of the Fourteenth

Amendment.

INTEREST OF THE UNITED STATES

Congress concluded in Section | of the Clean Air Act that

“the growth in the amount and complexity of air pollution

brought about by urbanization, industrial development.

and the increasing use of motor vehicles, has resulted in

mounting dangers to the public health and welfare.” 42

U.S.C. 1857(a2). Congress decided that air pollution

should be abated and authorized the Environmental

Protection Agency to coordinate the national efiort. but it

(1)

2

recognized “that the prevention and control of air pollution

at its source is the primary responsibility of States and jocal

governments.” 42 U.S.C. 1857(a3); see generally Train v.

Natural Resources Defense Council. Inc. 421 US. 60. 63.

The primary tool for the control of ai pollution is the

implementation plan each State must prepare and enforce.

See 42 U.S.C. 1857c-S(a(1). States and their subdivisions

select the mix of measures to control! pollution that they

deem most desirable in light of the costs and benefits of each

method. The Environmental Protection Agency has

suggested to the States that strategies to reduce the number

of vehicle miles traveled may be especially useful ways to

reduce pollution, and that limitations on parking may be

especially useful ways to reduce the number of vehicle miles

traveled (38 Fed. Reg. 30629).'

The ordinance at issue in this case arose out of the

quest to reduce air pollution emitted from automobiles. | he

State of Virginia promulgated a plan that recognized the

importance of reducing vehicle miles traveled; it left to local

jurisdictions the task of selecting devices (38 Fed. Reg.

33702, 33706-33707), and Arlington County adopted an

ordinance restricting non-resident parking as a tool to

reduce vehicle miles traveled. The ordinance was enacted on

May 18, 1974, and submitted to the Environmental

Protection Agency for approval:? the Agency approved the

‘See also 38 Fed. Reg 16551. 16552. and the Environmental

Protection Agency's August 1973 “White Paper” on the problems of

control of pollution by vehicles.

“The ordinance appears at Pet. App. ?4a-2%a. Under the ordinance

the night of non-resident commuters to park their cars in residential

neighborhoods during business hours may he curtailed when the

County Manager determines that more than 75 percent of the onstreet

parking capacity ts in use and that more than 25 percent of the capacity

® used by non-residents whose destination is an industrial or

commercial area adjoming the residential neighborhood. See also Pet

3-5.

3

ordinance on November 18, 1974, as “a reasoned approach

to address, among other community needs. degrading ai-

quality due to excessive commuter parking” (Pet. App.

29a).'

The decision of the Supreme Court of Virginia invali-

dating this aspect of the pollution control strategy on federal

constitutional grounds would affect the ability of States and

localities to meet the goals established by Congress in the

Clean Air Amendments of 1970. If the decision below ts

correct, they must devise other strategies that would

effectively control pollution, or the United States must

devise broader strategies. The United States therefore has a

significant interest in the question presented by this case.

DISCUSSION

1. The Supreme Court of Virginia has held that a local

ordinance limiting the circumstances under which non-

residents may park on the streets of residential

neighborhoods violates on its face the Equal Protection

Clause of the Fourteenth Amendment.‘ If the decision

below is allowed to stand, the State and its sub¢ivisions will

pe required to find new pollution control strategies, and the

new strategies may be more costly or more disruptive than

was the restriction on non-resident parking.

‘Because the ordinance was voluntarily enacted. this case ts not

affected by Marvland v. Environmental Protection Agency. 5) F. 2d

215 (CA. 4), and District of Columbia v. Train, 521 F. 2d 971 (C.A.

D.C), vacated sub nom. Environmental Protection Agency v. Brown.

No. 75-909. May 2. 1977, which dealt with the extent to which the

Agency could require unwilling States to entorce a pollution control

plan that had been promulgated by the Agency.

‘The court declined to consider record evidence offered in support of

the statute. See Pet. App. 4a-Sa.

4

Numerous plans prepared to implement the Clean Air

Amendments of 1970 include restrictions on parking, and

these restrictions have been upheld by at least two courts of

appeals. South Terminal Corp. v. Environmental Protec-

tion Agency, 504 F. 2d 646, 671-676 (C.A. 1); Friends of the

Earth v. Environmental Protection Agency, 499 F.2d 1118,

1125 (C.A. 2). The Supreme Judicial Court of

Massachusetts also has upheld a ban on nonresident

parking. Commonwealth v. Petralia, No. M-729, decided

April 29, 1977.5 On the other hand, several state courts have

held restrictions on non-resident parking to be un-

constitutional,® and the constitutionality of such restrictions

is being challenged elsewhere.’ A conflict between the

highest courts of two States already exists, and the problem

is such that further litigation in the lower courts is unlikely

either to assist this Court in deciding the issue or to obviate

the need for that decision.

2. The United States believes that restrictions on the

availability of parking can be an important part of a pro-

gram to reduce pollution. A restriction upon parking by

non-residents, such as that at issue here, reduces pollution

because it deters non-residents from using cars to commute

into the area.

‘For the convenience of the Court, we have reprinted Petralia as an

Appendix to this memorandum.

"See Srate v. Whisman, 24 Ohio Misc. 59, 263 N.E. 2d 411 (citing

earher decisions).

"See, e.g., Georgetown Association of Businessmen vy. District of

Columbia, D.C. Super. Ct., Civ. No. 7242-76, decided August 9,

1976 (preliminarily enjoining a restriction on non-resident parking):

State v. Thompson, Md. Cir. Ct., Crim. No. 19018, decided March

16, 1977. See also Pet. 18-19.

S

Any program to reduce pollution, including restrictions

on non-resident parking, imposes hardships on those who

must alter their behavior, but the existence of such hard-

ships is inevitable. Union Electric Co. vy. Environmental

Protection Agency, 427 U.S. 246 (pollution control, which

benefits the general public, may be achieved by requiring

particular factories to clean up or close down). Cf. Usery v.

Turner Elkhorn Mining Co., 428 U.S. | (particular mine

operators may be required to recompense miners for

damage caused by coal dust inhalation).

The Supreme Court of Virginia offered several réusons

for its conclusion that the restriction upon non-resident

parking violates the Equal Protection Clause of the Four-

teenth Amendment. It stated that the ordinance dis-

criminates in favor of neighborhood residents (Pet. App.

7a), that it is irrational to favor residents over non-

residents in designing public programs (id. at 9a-10a), that

it is improper to give residents “a parking monopoly in the

public streets of their neighborhood” (id. at Ya), and that

although a statute favoring residents over non-residents

may reduce the amount of pollution, “solutions achieved at

the price of invidious discrimination are too dear” (id. at

12a). Each of these grounds is inconsistent with decisions of

this Court.

a. The Supreme Court of Virginia's apparent conclusion

that statutes distinguishing betweer. residents and non-

residents of a particular location are irrational conflicts

with McCarthy v. Philadelphia Civil Service Commis-

sion, 424 U.S. 645, and Detroit Police Officers Association

v. City of Detroit, 405 U.S. 950, dismissing for want of a

substantial federal question an appeal from 385 Mich.

519, 190 N.W. 2d 97. McCarthy and Detroit each involved

a local statute requiring certain municipal employees

a ee ee

6

to be Aone fide residents of the city: in each cave non

residents attacked the statute as irrational and diserim:-

hatory, im eaeh cave this Court upheld the statute. In

McCarthy the Court concluded (424 U.S. at 646) that

“Iw have * * * held that this kind of ordinance is not

irrational.” The Court also rejected the argument that a

requirement of Aone fide residence impinged upon the

right of interstate travel, Derrow and MeCarthy establish

that statutes preferring residents over non-residents

are not irrational,

hb. To the extent that the Supreme Court of Virginia

relied upon the argument that the grant to newhborhood

residents of a “monopoly” over that neighborhood's park-

ing space offends the Equal Protection Clause, ity rma

tronale is inconsistent with Civ of New Orleans v. Dukes.

427 US, 297. Dudes sustained, against an equal protection

challenge, a New Orleans ordinance that created a mono-

poly of hot dog vending in the French Quarter of the City.

The Court rejected the argument that the City's desire

to preserve the appearance and attractiveness of the

Quarter was an insufficient reason to exclude other hot

dog vendors, and it explained, in language equally ap-

propriate to the present cave (427 US. at WO).104):

When local economic regulation is challenged solely

as Violating the Equal Protection Clause, this Court

consistently defers to legislative determinations ax to

the desirability of particular statutory discriminations.

** * Untews « classification trammels fundamental

personal rights of is drawn upon inherently suspect

distinctions such as race, religion, or alienage, our

decisions presume the constitutionality of the statutory

discriminations and require only that the classification

challenged be rationally related to a legitimate state

interest, States are accorded wide latitude in the

?

regulation of their local economies under ther police

powers, and rational distinctions may be made with

substantially less than mathematical exactitude * * *

[T}he judiciary may fot sit as a superlegisiature to

judge the wisdom or desirability of legislative policy

determinations made in areas that neither affect

tundamental rights nor proceed along suspect lines

*** in the local economic sphere, it is only the

invidious diverimination, the wholly arbitrary act,

which cannot stand consstently with the Fourteenth

Amendment.

See alo Dandridge v. Williams, 197 US, 471, 485-486,

Williamson ¥. Lee Optical Co, 448 U.S, 483, 488,

The Supreme Court of Virginia did not find, nor could it

have found, that the restriction upon non-resident parking

is & “wholly arbitrary act” of that it affects fundamental

personal rights.” The ordinance ws rationally related to the

goals, recited in its preamble (Pet, App. 25a), to “protect

[the neighborhoods] from polluted air, excessive Nowe, and

trash and refuse caused by the entry of [non-residents]

vehicles; to protect the residents of those districts from

unreasonable burdens in gaming access to their residences.

to preserve the character of those districts as residential

districts; * * * and to preserve the safety of children and

other pedestrians *** " These goals, which are une

doubtedly advanced by the parking restrictions, are at least

as pressing as the goals deemed sufficrent in Dudes to justily

the creation of a hot dog monopoly.

‘States traditionally have had broad to Make rules cue

corning the wre of the public streets and the right to drive upon thom

Mihh\ Neveto Predehe Lines, fae 99 US. 920,921. Soahern Mecitn

Co \. 4pttewe, 125 US. 761, THE Dee of a car & fot @ fundamental

right, See Diver y. Loewe, No TS 151) decwded May 16,1977 shipap ?-

5

+. The state court appeared to concede that the ordinance

has legitimate goals (Pet App. 7a) and is rationally related

to these goals, but it concluded thet the burdens unposed

upon non-residents in the course of achieving thowe goals

made the price “too dear” (4. at 12a). Such judicial re-

evaluation of the legislative judgment is inconsistent with

Village of Belle Terres, Boreas. 416 US. 1. Boreas upheld a

roning ordinance that excluded from the Village certain

groups of unrelated persons that were thought to contribute

to overcrowded ions The non-residents who sought

admimsion to the V contended that the ordinance

was unfair and did not achieve goals sufficiently important

to justify the imposition on association that the ordinance

created, but this Court concluded that such value judgments

are & proper matter of legislative diveretion. It explained

(416 U.S, at 9) that “[a] quiet place where yards are wide.

people few, and motor vehicles restricted are legitimate

guidelines in a land-use project addrewed to family needs.

* * * The police power * * * is ample to lay out cones where

family values, youth values, and the blessings of quiet

seclusion and clean air make the area a sanctuary for

people.”

The Arlington ordinance involved in the prevent cave

serves values no less important than those at stake in

Boraas, The burden of the Arlington ordinance is much less,

the Arlington ordinance excludes cars, not people, and

persons desiring to commute to work can do so by using

public transportation or finding other places to park.

Whether the ordinance exacts a price “too dear” in relation

to tts objectives is a legislative, not a judicial, judgment, and

it is immaterial that the benefits of the ordinance may not

have been established to the court's satisfaction. Whalen v.

Roe, No, 75-839, decided February 22, 1977, slip op, 6-9.

The restriction on non-resident parking ix rationally related

to a permissible goal of legislation. and it does not impinge

on fundamental personal rights of draw suspect distine-

trons. Indeed, it is not a classification of people at all, It

distinguishes only between consequences attached to

different categories of activities, Persons who live ina few

designated neighborhoods may park there, most persons

who do not, may not, This is ordinary police legislation

attaching particular consequences to decisions persons may

make about where to reside, and it does not violate the

Equal Protection Clause.

CONCLUSION

The petition for a writ of certiorarn should be

granted °

Respectfully submitted.

Wane Ho McCann, Je,

Solicitor General

James W) Mooeman,

Acting Assistant Attorney

General

PRank H. Lasteammoox,

Assistant to the Solicitor General

Fomwounn B Chae,

Micnaet D. Graves,

New 1. Paore,

Attorneys.

May 1977.

_

"Wecause the decmion of the Supreme Court of V wer clearly

conflicts with the governing equal protection . the Court

may Weel to consider summary reversal

APPENDIX

April 29, 1977

No, M-729

SLC,

COMMONWEALTH we, GoY A. Prrmania

(and three companion cases!)

WILKINS, J. The defendant, who has been charged with

4 parking violation in Cambridge, challenges the con-

stitutionality of the regulation of the city's traffic director

under which he was charged.’ He challenges the regula-

tion because it permits only authorized residents of Cam-

bridge to park their automobiles on the public street where

he, a nonresident, parked his automobile We conclude

that the classification made by the regulation bears a

rational relation to proper legislative objectives:

The case is before us on a report which contains all the

material facts. We transferred the case to this court on

our own motion, Hefore considering the specific ques

lions reported to us, we shall set forth the necessary

background.

On May 6, 1975, a complaint issued charging the de-

fendant with parking on Spring Street in East Cambridge.

in & residential zone near the court house complex, in

violation of a regulation of the traffic director, Spring

Street was posted with signs reading “PARKING BY

PERMIT ONLY EX SUN.” The defendant had no permit

aa —_

‘Two of the companion cases are by the Commonwealth against

Mr Allan A. Fishman and one is by the Commonwealth again

Mr Joseph WH. Porter, Mr Potraia is the only defendant whe hus

filed « Briel with ‘his court We shall refer to hin we the defend

ant All three are member of the har of the Commonwealth

‘Matute 1961, © 455. as amended through St 1972.6 M0. author

ives The adoption of (ratte regulations on Caninrrdge

Qa

und, as a hon-resident of Cambridge, was not entitled

to obtain one under the traffic director's “Rules and Regu-

lations for the Resident Parking Sticker Program.” A

permit could be obtained by any resident of Cambridge

for an automobile registered in Massachusetts, princi

pally garaged in Cambridge, and owned of used by that

resident.

On May 14, 1975, the defendant pleaded not guilty in the

Third District Court of Eastern Middlesex. He was found

guilty, fined $10, and appealed to the Superior Court, The

defendant filed a motion to dismins in the Superior Court,

alleging various grounds for the motion! Mr. Porter joined

in the defendant's motion, Mr. Fishman filed a motion to

dismins which did not allege any grounds. The judge sitting

in the Superior Court concluded that the motions raised

“questions of law which are both doubtful and important”

which required a decision of this court and reported the

cases in pursuance of G. L. ¢. 278, § WAS

The motion to divine alleged that the Purking regulation was

Unconstitutional as (a) a denial of equal protection of the laws. (bh) an

interference “with the fundamental right of all people to travel

uninhibited ” (¢) a denial to nonresidents of (ree and equal use of the

public streets. (d) a denial to nonresidents of unrestricted access to the

courts of Middlesex County in Cambridge. (e) 4 denial of a

and HmMUnitiEs of CHiZenship enjoyed by the residents of Ca wpe (f)

heing void for vagueness, (g) an interference with commerce, and (hy

ConsTUTINg an indirect tax on nonresidents for use of public otreets

‘General Laws. 278, @ WA, inserted by St. 1954, 6 92m. provides for

of interlocutory report ina criminal case of a question oF questions of

law whieh the judge regards “wo | ant or doubtlul as to require the

decision of [this court} thereon before trial, in the interest of justice ”

The entire case is not to be reported but only so much of HM we te

“necessary to prevent the question of law.” Although G. b.¢. 27%. § WA,

provides for reporting of such a question to this court, the report

properly was entered initially in the Appeals Court See GL. ¢ 2IIAL4

0

Ja

As to Mr. Porter and Mr. Fishman, we do not consider

the questions reported because neither has filed a brief in

this court nor joined in Mr. Petralia’s brief. See Mass. R. A.

16 ()), 365 Mass. 860 (1974). Therefore, each has waived

his right to rely on the contentions which prompted the

judge's reported questions. Carangias v. Market Men's

Relief Ass'n, 293 Mass. 284, 285 (1936). These defendants

have no right to answers from this court. and it makes no

difference that the judge reported the case without decision.

Suwia v. Soscia, 310 Mass. 418, 422-423 (1941). See

Commonwealth v. Eppich, 4 Mass. 678 (1939).

As to the defendant, we consider the questions reported,

whieh are set forth in the margin,’ only in so far as they have

heen argued in his brief. The remaining questions need not

he considered because, by not arguing them, the defendant

has waived them as a basis for his motion to dismiss. Mass.

Kh. A. P. 16(a4), as amended, Mass. (1975). The only

argument now made by the defendant is that the parking

‘The judge stated that “[t}he questions requiring decision are as

fellowes

“a by Chapter 455, Acts of 1961, as amended by Chapter 340, Acts of

197). constitutional’

“hb ty Chapter 455, Acts of 1961, as amended by Chapter 340, Acts of

1972. constitutional. as applied to these ?

“ety Chapter 455, Acts of 1961, as amended by Chapter 340, Acts of

1972. either on its lace or as apphed to these defendants, invalid for any

reawon stated in the Defendants’ Motions to Dismiss”

“d Ate Cambridge Trathe Regulations implementing a resident-only

parking system, adopted pursuant to Chapter 455, as amended by

Chapter 140. Acts of 1972. constitutional as applied to the defendants”

“e Should the Defendants’ Motions to Dismiss be granted or should

uf order wsue that the defendants be brought to trial torthwith, or

should same other appropriate disposition be made™

4a

regulation discriminates against him as a non-resident in

violation of his right to equal protection of the laws.*

The basic question is whether the classification made by

the regulation rationally furthers a legitimate State purpose.

Opinion of the Justice, Mass., (1975)."° Commonwealth v.

Henry's Drywall Co. 366 Mass. 539, 541-543, 544-546.»

Pinnick v. Cleary, 360 Mass. |, 27-28 (1971). New Orleans v.

Dukes, 427 U.S. 297, 303-304 (1976). Village of Belle Terre

v. Boraas, 416 U.S. 1, 8-9(1974). Our analysis is no different

because the challenged governmental action is based on a

regulation, enacted pursuant to statutory authority, rather

than based directly on a statute. See Colella v. State Racing

Comm'n, 360 Mass. 152, 155-156(1971): Commonwealth v.

Berney, 353 Mass. 571, 574 (1968) (ordinance banning

‘The defendant does not challenge the regulation as exceeding the

traffic director's statutory authority. Statute 1972. c. 340, amended cl.

(a) of § 3 of St. 1961, c¢. 455, to authorize an exception from parking

Prohibitions in specified residential areas for certain vehicles of certain

residents of Cambridge.

We are not presented with the question whether the regulation went

beyond the statutory authorization by making stickers available to cach

resident of Cambridge owning or using an automoble principally

garaged in Cambridge. The 1972 statutory amendment (St. 1972. ¢. 340)

appears literally to authorize stickers only for persons residing in a

specified residential area where parking ts authorized by permit only.

We have been advised that in 1974 a judge of the Third District of

Fastern Middlesex ruled that a regulation which did not authorize all

city residents to obtain a sticker discriminated impermissibly among

Cambridge residents in violation of the equal protection clause of the

Fourteenth Amendment to the United States Constitution. That judge

indicated that a parking permit program available to all Cambridge

residents would be valid. The traffic director apparently thereafter

altered the parking sticker program to make stickers available to all

residents of Cambridge who owned vehicles principally garaged in

Cambridge.

“Mass. Adv. Sh. (1975) 2637. 2642.

™ Mass. Adv. Sh. (1974) 2377, 2380-23K2, 23%5-23K6.

Sa

overnight parking), Commonwealth v. Dobbins, 344 Mass.

272. 275 (1962) (parking ordinance), Commonwealth v.

Sargent. 330 Mass. 690. 692 (1953) (Boston parking

regulation exempting only members and officers of the

General Court upheld against an equai protection of the

laws challenge). The defendant rightly concedes that the

regulation of the use and operation of vehicles on public

ways, including parking, is a legitimate subject of State

concern. Commonwealth v. Dobbins, supra at 275, and

cases cited. Opinion of the Justices, 297 Mass. 559, 563-564.

566 (1937). The Commonwealth's right to regulate vehicles

stopping on a public way existed even before the invention

of the motor vehicle. See Commonwealth v. Rowe. 141

Mass. 79, 80 (1886) (a cab); Commonwealth v. Fenton, 139

Mass. 195, 197 (1885) (a wagon). In addition, the reduction

of traffic congestion and air pollution and the en-

couragement of the use of public transportation are legiti-

mate State purposes. See Radcliffe College v. Cambridge.

550 Mass. 613, 617 & n. 4(1966); Cabot v. Assessors of Bos-

ton, 335 Mass. 53, 58, 64 (1956); Lowell v. Boston, 322

Mass. 709, 737 (1948); Commonwealth v. Newhall. 205

Mass. 344, 347-348 (1910); South Terminal Corp v. EPA.

504 F. 2d 646, 671-673 (Ist Cir. 1974); Friends of the Earth v.

EPA, 499 F. 2d 1118, 1125 (2d Cir. 1974). See also Verbit.

The Urban Transportion Problem, 124 U. Pa. L. Rev. 368.

390397 (1975), Note, A Cure for the Highway Epidemic: A

Balanced Subsidy. 5 Suffolk U.L. Rev. 902. 912-914(1971).

The private motor vehicle, especially one occupied by

only one person, often contributes unreasonably to con-

gestion on the highways, to pollution of the environment.

and to the uneconomic expenditure of natural resources.

The East Cambridge restricted parking area is within

reasonable walking distance of the various court and other

public facilities in East Cambridge. It is also within

reasonable walking distance of the Lechmere Square

6a

subway station and of various bus stops of the Massachu-

setts Bay Transportation Authority. We take judicial no-

tice that the court and other public facilities are accessible by

public transportation and that the general vicinity in East

Cambridge is developed substantially and intensely with

commercial and industrial uses as well as with residential

uses.

We think that a regulation which discourages persons

from driving their automobiles to the congested neigh-

borhood in the vicinity of the court house and other public

facilities in East Cambridge deals rationally with the public

interest in reducing highway congestion, in reducing air

pollution, and in encouraging the use of public transporta-

tion in place of private transportation.

We turn then to the question whether the Cambridge

parking regulation’s distinction between Cambridge

residents who have obtained parking permits and all others

rationally furthers one or more of these legitimate State

interests. The defendant relies on three opinions from other

jurisdictions holding that parking restrictions which

discriminated in particular ways between residents of an

area and others were unconstitutional. Siate v. Whisman, 24

Ohio Misc. 59, 64-65 (CP. Scioto County, 1970). Cincinnati

v. Cook, 107 Ohio St. 223, 226-227 (1923). Kaufman v.

West, 133 Wash. 192, 193 (1925). The Whisman case

involved an ordinance whose purpose was limited to

assuring parking rights to authorized residents of an area

before others could park on public ways in that area. The

court did not consider the broader purposes of the type

which lie behind the Cambridge regulation. The Cook case

was decided on the ground that there was an un-

constitutional! delegation to property owners of the right to

determine who could park in front of their premises. The

Kaufinan case was decided on State constitutional grounds

7a

only, and concerned an ordinance which discriminated

against apartment house dwellers. The expressed purpose of

the ordinance was a limited one. None of these opinions

describes the character of the area where the parking

restriction applied. These cases are inapplicable to the case

before us, which involves a congested urban area which has

substantial traffic and parking problems for years.

The Supreme Court of Virginia recently struck down on

equal protection grounds a local zoning ordinance which

authorized residents of a defined zone, their guests, and

invitees to park their motor vehicles in that zone but barred

all others from parking there. County Bd. of Arlington

County v. Richards, Va. (1977). The ordinances’ declared

purposes were to protect the zone and its residents. Those

purposes were not founded, if they could have been under

State law, on the impact of non-resident parking on regional!

considerations, such as traffic congestion, air pollution, and

the encouragement of the use of public transportation. The

opinion accordingly gives nv consideration to the possibility

that a parking regulation, seemingly favoring residents of an

area, might be justified on broader considerations than

those expressed by the local board.

We conclude that the placing of motor vehicles of re-

sidents of Cambridge in a category apart from all other

motor vehicles is not irrational. See Opinion of the Justices,

341 Mass. 760, 781 (1960). Those Cambridge residents most

interested in parking in the restricted area are those who live

in it. If they leave their cars parked near their homes, they

contribute nothing to air pollution or to the congestion of

moving traffic on the highways. In general, those Cam-

bridge residents who do not live in the restricted area but are

“231 'S. E. 2d 231, 235 (Va. 1977).

8a

permitted to park in it have a shorter distance to travel and

will contribute less to traffic congestion and pollution than

will persons driving to the restricted area from other

municipalities. Legislative classifications need not be

perfect in order to survive a challenge on equal protection

grounds. Keough v. Director of the Div. of Employment:

Security, Mass. (1976).4 Opinion of the Justices, Mass..

(1975)* Milton v. Civil Serv. Comm'n, 365 Mass. 368, 377

(1974). Dandridge v. Williams, 397 U.S. 471. 485 (1970).

The defendant has failed to meet his heavy burden of

proving that the classification made by the Cambridge

traffic director is invidiously discriminatory.’

The discrimination made by the Cambridge regulation is

based rationally on the use or nonuse of a motor vehicle. A

resident who parks near his home is not using his

automobile, whereas a person who parks in an area away

from his home has used his vehicle and thus has contributed

to the problems which the Cambridge regulation seeks to

address. The rational distinction made by the Cambridge

regulation is founded on vehicle use. Place of residence is

merely a reasonable means of measuring that use.

We answer question d, concerning the constitutionality of

the regulation, in the affirmative, passing only on the

constitutional issue argued by the defendant. Questions a, b.

Mass. Adv. Sh. (1976) 810. 816.

“Mass. Adv. Sh. (1975) 2521, 2542-2543.

‘We add that, if the regulation were constitutionally invalid for

favoring residents of Cambridge who do not live in the East C ambridge

restricted parking area in preference to non-residents. the appropriate

judicial remedy might be to deny parking rights to such residents of

Cambridge as well as to the defendant. Such a solution would achieve

the purpose of the regulation better than granting parking rights to

everyone by striking down the regulation in its entirety.

——

9a

and c, all of which deal with the constitutionality of St. 1961,

¢. 455, as amended through St. 1972, c. 340, need not be

answered because the defendant has not challenged the

legislation as such. Question e asks what course the judge

should follow. That question does not present a question of

law and we do not answer it. The report is dismissed as to

the defendants Mr. Porter and Mr. Fishman. In the

discretion of the judge, their motions to dismiss are to be

treated as waived.

So ordered.