Amicus Brief — County Board of Arlington County v. Richards

IN THE

Supreme Court of the United States

OCTOBER TERM, 19% LO

No, 76-1418

COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, BERT W

KOMNSON, County Manager, and ROY MeLAREN, Chief of Police of

Arlington County,

Peritroners.,

RUDOLPH A. RICHARDS, MARIO A. CARBON, FRANK TOMER,

THOMAS BECK, BRAXTON H. TABR, IR, MICHELLE McKENZIE,

PiMER FP. BORKOWSKI, ERNEST G. WALLACE, JOSEPH FT

HELPIORE, IR, CAROLYN BOLLING, HOWARD BE. HURLEY, IR,

iAMES MOTT, H. DD. MORRIS, GHORGE A. RISCILI, and RAY

TL BERT PARAER,

Respondents

BRIEF OF AMICUS CURIAE

MONTGOMERY COUNTY, MARYLAND

In Support of

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Ronald t. Resh

Special Counsel for Montgomery

County, Maryland

Si) Monroe Street, Suite 600

Rock ville, Maryland 208580

(Wr) 762.7900

( ownvel tor Amous (© ure

IN THE

Supreme Court of the United States

(XH TORER TERM, 1976

No, 76-1418

COUNTY BOARD OF ARLINGTON COUNTY. VIRGINIA, BERT W

HHINSON, County Meneeer, and ROY Mel ARIN, Chief of Police of

Ar hegton C ownty,

Periteoners.

RUDOLPH A. RICHARDS, MARIO A. CARBONI, PRANK TOMPK,

THOMAS BECK, HRANTON MH. TARE, IR. MICHELLE McKENZIE,

Pi MER FP BORKOWSAL ERNEST G WALLACE, SOSTPH 1

MET TIORE. IR. CAROLYN BOLLING, HOWARD FF HURLEY, IR,

DAMES MOTT. 1 oD MORRIS, GORGE A. RISCTLIL, and RAY

PT HME RT PARAER,

Respondents

BRIEF OF AMICUS CURIAR

MONTGCOMERY COUNTY, MARYLAND

In Support of

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Ronald | Resh

Special Counsel for Montgomery

County, Maryland

“! Monroe Street, Suite 600

Kowk ville, Maryland 20850

(M1) 762.7900

( ouevel tor Amous C urive

TABLE OF CONTENTS

OPINIONS BELOW !

HURISDIC TION !

QUESTION PRESENTED !

STATUTE AND CONSTITUTIONAL PROVISIONS

INVOLVED !

INTEREST OF AMICUS 2

STATEMENT OF THE CASI ’

REASONS FOR GRANTING WRIT 6

1. The Decision Below Directly Conflicts With Precedent

bstablished By This Court Setting Standards of Analysis for

Pvaluation of Legivtation Challenged Under the oe

PUGS «co cccocccceeecoeecoeocceecocececececs

2. The Decision Below Violates Previous Holdings of This Court

as to the Extent to Which Local Jurivdictions May Legistate

in the Interest of Preserving and Protecting Residential

3. The Guidance of This Court is Needed to Resolve Conflicting

Judicial Opinions Throughout the Country on the lowe

Presented by This Petition, (6 nuns i4

CONCLUSION 17

APPENDIX — Montgomery County Parking Permit Ordinance. ta

"

TABLE OF AUTHORITIES

( aves:

Herman v. Parker, MRULS. 26, 798.04. OF

Witd. 2701987) 12,13

Civ of New Orleans «, Dukes, 427 U.S, 297,

965.01, 2513, 49 L bd ld SEE N977) 10

City af Pitshureh ©. Aleo Parking Corp, 417 U.S. V9,

4 S.C1, 2291, 40 Ld 2d 192 (1974) "

Dunn». Mumsiein, 408 US, 19, 92 $01, 995,

bt 2d 274 01972) 7)

Liwenstadt ¥. Bawd, WS US. 1, 928.08. 1029,

Uitd. Jd 4911972) 10

Litid v. Ambler Realty Co., 272 U.S, WS, 478.08, 114,

TEL bd. W926) 12

Crawold ». Connectiod, VALUS, 479, 899.01, 1678,

M41 bd 2d SIO (1965S) seeuesene oo 10

Harper v. Virwinia State Board of Elections,, AA US. 663,

MSCL 10K 16L bd W199) tststi(‘i‘ia HD

Aramer v. Union | ree School District, YS U.S, 621,

BY S.C1. 1RRO, 231 bd. 2d S89 (1969) TYYTYTErTrryrrrrires. |

levy vy. Lowiniana, VOUS, OR, AR SCL. 108,

Wt td 2d 4M 96K) 7,9

McCarthy v. Philadelphia Civil Service Commission,

424 US. 645, % SCL 11M,

47 Lid. ld 3% (1976) ) A

Me Donald \. Board of Election Commissioners,

M9US. HO2, R95.C1 1184. 47L Bd 279)

—> ge _

Vietrowen +. Marviand, ¥66 U.S. 420, 81 S.Ct. 1101,

OCS, 28 SUD OSU. «ki cc iicdoccccccensneeeeee ?

NAACP ¥, Alabama ex rel Patterson, 387 U.S. 449,

7H S.C4, 1163, 2 Ld. 2d 1488 (1958) ©. 66.6, 10

NAACP v. Button, Y71 U.S. 415, 83 S.Ct, 328,

OC.LG, SOGIDOGEEDD 0 0 kvikcccccacdibeusns ee 10

Ouecnside Hills Reality Co. v, Saul, 328 U.S. 80, 66 S.Ct. 850,

GCSE, GHRRGUUEED oc cncccecsecheesseuee 9

Suleway Stores, Inc. v. Oklahoma Retailer Grocers

Avenvation, Inc., 360 U.S. 334, 79 S$.Cr. 1196,

D OLS, BD CRD GRic cc cccocsscanssseusnnnsssnee x

Swlver Land Company v. Tulare Water District, 410 U.S. 719,

918.08, 1224, IS Ld. 2d 689 (1973) ©... i)

Sodilh ©. Awebel, 404 U.S. 387, 92 $.C1. 479,

DDE. SE SER GUOSED 0 cccncekencéenedsanete )

SWolward Ait Line RR. v. Seevers, 207 U.S. 73, 28 S.Ct. 28,

rr 7

Wajnre +. Thompson, Y94 U.S. 618, 89 S.Ct. 1322,

Be Uc, RPGR 0.000060000dunbe dss 13

Siver v. Silver, 280 U.S. 117, 80 8.Ct. $7,

TO CMO BERGHE c.éceccséoncuunucnsenneeeeee 10

Swroles v. Binford, 286 U.S. 374, $2 S.Ct. S81,

TO OSG, GEV GREED «kc éckcccdséecacesseueueseneee 10

1 i/hewe of Helle Terre v. Boraas, 416 U.S. 1, 94 8.C1. 1836,

1 § a ee 12, 13, 14

Wiliams +, Rhodes, 993 U.S. 23, BYS.CL. S,

50 Cc SRBOGGTEED oo cc cvensaccecesescedsssenncaal 9

i! dawn v. Lee Optical Co., 348 U.S. 483,

79 BA. GBB, GOETR SEDGE ccc cceccesoceccucnsans 9

denn +. American Mini Theatres, Inc., 427 U.S. 50,

WH S.C4, 2440, 49 L.Ed. 2d 310 (1976) 62 14

iv

Positive Law:

U.S. Constitution, Fourteenth Amendment, Sec. 1 ..... passin

nn orn ae ce eee hanes dé auddeoetedeeesce !

DE GGbénbdedbobes eens ceed es d650064660000< 16

Zoning Ordinance of Arlington County, Virginia ...... passim

Regulations:

TF ND, ee 16

38 Fed. Reg. 16556 (1973) . ; i betinddends sanuseceuésas 16

The opinion of the Supreme Court of Virginia, rendered on

January 14, 1977, is reported at 217, Va... 231 S.E.2d 23).

(Appendix A)! The unreported letter opinion rendered by the

Circun Court of Arlington County on June 18, 1975, appears as

Appendix B.

JURISDICTION

The judgment of the Supreme Court of Virginia was entered

on January 14, 1977, (Appendix C). This Court has jurisdiction

by virtue of 28 U.S.C. §1257 (3).

QUESTION PRESENTED

Does a municipal ordinance which restricts, during certain

time periods, on-street parking by non-residents in residential

neighborhoods congested by commuter parking violate the Equal

Protection Clause of the Fourteenth Amendment to the United

States Constitution when similar restrictions do not apply to

revicdcats of those neighborhoods?

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Ihe Fourteenth Amendment to the United States Constitution

provides in pertinent part:

“SECTION |. . .No State shall deny 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

set forth om its entirety in Appendix D.

1. Except as otherwise indicated, appendix designations refer to the

Appendix to Arlington County's Petition for a Writ of Certiorari

filed with thes Court.

2

INTEREST OF AMICUS

Amicus Curiae Montgomery County, Maryland, is © sister

jurisdiction of Arlington County, Virginia, located within the

Metropolitan Area of Washington, D.C. Montgomery County

has approximately 590,000 residents and is $04 square miles in

wze. Like Arlington County, Montgomery County contains

within its boundaries numerous urban areas in which intensified

commercial and industrial uses have grown up adjacent to or

close by older well-established residential neighborhoods. The

resultant impact in terms of traffic and parking congestion, air,

immse and litter pollution, and the general adverse effect on the

health, satety and welfare of its residential members of the

community have become an increasing concern to the citizens

and government of Montgomery County.

In 1974, after lengthy study, the Montgomery County

Council adopted and the County Executive later implemented a

revidential parking permit ordinance which, although somewhat

ditlerent in procedural aspects, has the same general effect as the

Arlington County ordinance? it too differentiates to some

degree between residential and non-residential parking and

authorizes certain restrictions on the latter. Like the Arlington

County ordinance, the Montgomery County law was enacted in

an ecttort to safeguard the health, safety and welfare of the

County's citizens, to combat adverse environmental conditions in

the County, and to preserve and protect the residential character

of neighborhoods heavily congested by non-residential commuter

parking. As was the case with the Arlington County ordinance,

the Montgomery County perking permit program served, among

other things, as part of a coordinated effort of the several

jurisdictions in the Metropolitan Area of Washington, D.C. to

respond to the expanding environmental problems causes by

commuter automobile travel.

Recently, in an action before the Circuit Court of Mont-

gomery County, Maryland, the County's residential parking

perma ordinance was declared to create an unreasonable

classification in violation of the Fourteenth Amendment? This

matter ts presently on appeal betore the Court of Special Appeals

2. See Appendix to this brief.

3. State +. Thompson, Criminal No. 19018, March 16, 1977.

3

of Maryland.* Unless this Court upholds the Arlington County

ordinance and the residential parking permit concept represented

thereby, Montgomery County and other jurisdictions throughout

the country which have adopted or are contemplating the

adoption of similar ordinances in order to alleviate en-

vironmental problems and to protect the safety and character of

the residential neighborhoods will be powerless to address these

goals in a meaningful way. Not only will jurisdictions be unable

to deal with their own internal problems, but cooperative efforts

among various government entities to relieve the increasing

burdens created by commuter vehicular traffic will be to no avail.

Accordingly, Montgomery County has a compelling interest in

seeing that the Arlington County ordinance is sustained and that

the decision of the Supreme Court of Virginia challenging that

ordinance as violative of the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution is

reversed.

This briet is being submitted in accordance with Paragraph 4

of Rule 42 of this Court. It is submitted by special counsel

retained by the County Attorney for Montgomery County, the

authorized law officer of that jurisdiction.

STATEMENT OF THE CASE

At issue in this case is the constitutionality under the Equal

Protection Clause of the Fourteenth Amendment to the United

States Constitution of a municipal ordinance enacted by the

County Board of Arlington Coun. Virginia, authorizing certain

restrictions to be placed on commuter parking in residential areas

of the County. (Appendix D) Under the Arlington County or-

dinance the County Manager is responsible for determining when

more than 75 percent of the available on-street parking capacity

im a particular residential neighborhood is used. The County

Manager must then determine when more than 25 percent of the

utthzed on-street spaces are occupied by vehicles the operators of

which are destined for commercial or industrial areas and not for

4. Appeal noted April 12, 1977.

4

thx particular residential area in question. When both conditions

heave been met the County Manager is authorized to restrict

p.. ag in the residential area during certain time periods to

holders of valid parking permits as well as to service and delivery

\ehicles. Permits are issued by the County to residents of the area

in question, for their visitors, and for vehicles of persons doing

business with those residents.

Like other jurisdictions throughout the country which have

enacted similar laws,5 the Arlington County ordinance was an

attempt by the County government to address the growing

troubles experienced by residential neighborhoods in particular

and by the County in general as a result of commuter and

lransiemt parking. In this regard, the purposes of the Arlington

County ordinance were explicitly stated by the County Board in

the preamble to the ordinance itself. These are:

“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

clear and safe condition; to preserve the value of

the property in those districts; and to preserve

the safety of children and other pedestrians and

iratlic safety, and the peace, good order,

comiort, convenience and weifare of the

inhabiiamts of the County.”’ (Appendix D at

2Sa).

S. In addition to the Arlington and Montgomery County programs,

counsel for amicus is aware of similar parking permit laws having

been enacted or under consideration in Washington, D.C.;

Charlottesville and Richmond, Virginia; Boston and Cambridge,

Massachusetts; Wilmington, Delaware; Milwaukee, Wisconsin; and

San Francisco, California.

5

Following its enactment, and after the requisite findings had

been made by the County Manager, the parking permit ordinance

was placed into effect on a limited basis in the Aurora Highlands

area of Arlington County. This is an established residential

neighborhood near U.S. Route |, adjacent to a large complex of

olfice and commercial buildings called Crystal City.

Shortly after it went into effect the parking permit ordinance

was challenged in a suit brought by a number of commuters who

worked in Crystal City and who had been using the Aurora

Highlands area for all day on-street parking. Among other

things, the commuters contended that the County’s parking

permit program denied them the equal protection of the laws in

violation of the Fourteenth Amendment to the United States

Constitution.

Ai the trial in the Arlington County Circuit Court the

County introduced evidence demonstrating the existence of the

problems giving rise to the ordinance, the rational basis for the

classification contained in the ordinance, and the appropriateness

of the ordinance as a method of dealing with the problems ex-

perienced by residential neighborhoods as a result of commuter

parking congestion. The conditions supporting enactment of the

ordinance were substantiated not only by testimony from

residents of the Aurora Highlands area, (Record at 340-41) but

also by expert testimony from transportation planners and en-

vironmental specialists. (Record at 256-293).

The County further demonstrated at the trial that the or-

dinance did in fact function as intended and that it achieved the

beneficial results sought by its enactment. (Record at 347). It was

also established at trial that the Arlington County parking permit

program was part of a coordinated effort by various jurisdictions

in the Washington, D.C. area to discourage commuter

automobile traffic and thereby to improve the environmental

quality of the region. (Record at 259-296).

While finding no fault with the objectives of the ordinance,

the trial court ruled that the classification used by the ordinance

—_—————S

6. Record references relate to the record filed with the Supreme Court

of Virginia on appeal below. Copies of this record have been

docketed with this Court.

6

did not bear a reasonable relationship to its stated goals.

(Appendix B at 21a). Without any specific findings of fact, the

Court concluded that the ordinance violated the due process

clauses of the state and federal constitutions and the Equal

Protection Clause of the United States Constitution. (Appendix

B at 22a).

Upon appeal, the Supreme Court of Virginia chose not to

deal with the evidentiary record and instead treated the question

presented as one of law involving the facial validity of the or-

dinance. The Court found that the objectives of the ordinance

“constitute a legitimate governmental interest.’’ (Appendix A at

7a). However, the Court held that the classification in the or-

dinance differentiating between residential parkers and non-

residential parkers ‘“‘bears no reasonable relation to its stated

objectives.’ (Appendix A at 12a). The decision of the trial court

was therefore affirmed.

REASONS FOR GRANTING THE WRIT

The decision of the Supreme Court of Virginia in the instant

case is contrary to past opinions of this Court defining when and

under what circumstances a particular ordinance or course of

action violates the Equal Protection Clause of the United States

Constitution. The decision below likewise conflicts with

precedent established by this Court recognizing the broad extent

to which state and local jurisdictions may legislate in the interest

of preserving and protecting the character and quality of

residential neighborhoods. Unless the decision below is reversed

by this Court, the validity of numerous residential permit

programs throughout the country will be cast into doubt.

Likewise, other jurisdictions which have been contemplating the

adoption of such programs as a reasonable means for dealing

with serious environmental, safety and planning problems will be

discouraged from doing so.

1. The Decision Below Directly Conflicts With Precedent

Established By This Court Setting Standards of Analysis for

Evaluation of Legislation Challenged Under the Equal Protection

Clause.

The Court below erred in finding the Arlington County

ordinance invalid as a matter of facial impression. It is only when

distinctions drawn by a statute in question are based on reasons

-

totally unrelated to the pursuit of a legislative goal, that they

should be set aside as violative of the Equal Protection Clause of

the Fourteenth Amendment. McDonald v. Board of Election

Commissioners, 394 U.S. 802, 809 (1969). A classification,

though discriminatory, is not arbitrary nor violative of equal

protection if any state of facts can be reasonably conceived that

would sustain it. McGowan v. Maryland, 366 U.S. 420, 426

(1961). If a distinction is not arbitrary and is in fact founded on a

substantial difference or apparent reasons suggesting the need for

differing classifications, the Court has no right to interfere with

the exercise of legislative discretion. Cf. Levy v. Louisiana, 391

U.S. 68 (1968).

In the instant case the problems sought to be addressed were

clearly stated in the preamble to the Arlington County ordinance.

In addition to protecting and preserving the character and quality

of the County’s residential neighborhoods the ordinance sought

to alleviate safety and environmental problems, all stemming

from the adverse impact and congestion generated by commuter

and transient parking in residential areas. It is significant to note

that the Arlington County ordinance addressed a problem unique

to residential neighborhoods adjacent to or nearby densely used

commercial and industrial zones. The type of difficulties imposed

on such neighborhoods as a result of parking by non-residents

were not necessarily shared by other residential areas farther

removed from the commercial or industrial zones. Accordingly,

these problems and the mechanism chosen by the government io

deal with them must be judged in their own special light. It

would be a mistake to evaluate the needs of certain areas ex-

periencing distinct problems and conditions in terms of what

might or might not be appropriate in other non-impacted areas

of the County. Whether a classification is reasonable or

unreasonable depends upon the facts presented by the particular

case at hand. Seaboard Air Line R.R. v. Seegers, 207 U.S. 73,

76-77 (1907).

The Arlington County ordinance demonstrates on its face

the reasonableness of the classification in question. Once the

Arlington County Board decided to act, the avenues open to the

Board in striving to accomplish its stated goals were twofold. The

Board could have limited all parking in particular residential

areas, or the Board could have restricted parking only on the part

of those non-resident commuters and transients who have no

reason to be in the residential area other than to secure a place to

park. Of necessity, the Board had to deal with a classification

between residential parkers, their visitors and service vehicles on

the one hand and non-residential commuter parkers on the other.

lt was commuter parking, not the residential parking which

created the conditions that the Board sought to correct.

To rule, as did the Supreme Court of Virginia, that the

distinction set out in the Arlington County ordinance violates the

Equal Protection Clause is to effectively deprive state and local

jurisdictions of the ability to ever act to alleviate the problems

addressed in that ordinance. Though acknowledging the

legitimate goals of the Arlington County ordinance, 7 the decision

of the Court below would leave the County with no other choice

than to restrict all parking in the congested residential

areas—resident parking included. To subject the residents

themselves to parking restrictions, thereby denying them ready

access to their dwellings, in an effort to solve a problem created

by nonresidential parkers would compound the very difficulties

the County Board sought to resolve. Under these circumstances

the residents would have been no better off, and in reality would

have been much worse off, than they previously were without

any parking restrictions or prohibitions. Rather than serving as a

protection, such action would in fact hasten the destruction of

the residential character of the neighborhoods involved.

By choosing to restrict commuter parking, the Arlington

County Board, as a matter of public policy, selected that avenue

which was strictly limited to accomplish the stated goals of the

ordinance and which represented the most practical course under

the circumstances. This Court has held that in testing legislation

against the Equal Protection guarantee the Court is not con-

cerned with the soundness of the distinctions drawn, but rather it

is sufficient that the legislature believes the distinctions drawn are

valid as a basis of public policy for the people of that particular

jurisdiction. Safeway Stores, Inc. v. Oklahoma Retailer Grocers

Assn. 360 U.S. 334, 342 (1959).

7. Appendix A at 7a.

—_—*

9

Likewise, the legislature is not compelled to attempt to deal

with all possible solutions to a given problem. The fact that the

Arlington County ordinance addresses the particular difficulties

resulting from commuter parking in congested residential neigh-

borhoods as opposed to parking and traffic problems in general

throughout the County does not render the ordinance con-

stitutionally suspect. It is well settled that the legislature may

select one phase of a particular field of interest and apply a

remedy there to the exclusion of other possibilities. Williamson v.

Lee Optical Co., 348 U.S. 483, 489 (1950); Schilb v. Kuebel, 404

U.S. 357, 364 (1971).

If the Supreme Court of Virginia had further examined the

facts and circumstances behind the Arlington County ordinance,

as well as the overriding interests which the Arlington County

Board was attempting to protect weighed against the interests of

commuter parkers who might be somewhat disadvantaged by the

ordinance, the Court should have readily perceived the

reasonableness of the classification. Compare Williams v.

Rhodes, 393 U.S. 23, 30 (1968); Kramer v. Union Free School

Dist. No. 15, 395 U.S. 621, 626 (1969); Dunn v. Blumstein, 405

U.S. 330, 335 (1972). Instead, without stating the reasoning

therefor, the Court below characterized the Arlington County

parking permit program as ‘“‘invidious discrimination.”’

(Appendix A at 12a.)

It is clear that ‘‘invidious discrimination’’ is indeed

prohibited under the Equal Protection Clause. Williamson v. Lee

Optical Co. supra at 489, and Schilb v. Kuebel, supra at 364.

However, it can hardly be said that a restriction on commuter

parking imposed in a manifest effort to alleviate problems

created by that type of parking constitutes ‘invidious

discrimination”’ as that concept has been previously dealt with by

this Court.8

8. See, e.g., Invidious discrimination found: Williams v. Rhodes, supra

(election ballot discrimination); Levy v. Louisiana, supra at 68

(denial to illegitimate children of right to recover for wrongful death

of mother); No invidious discrimination: Queenside Hills Realty

Co. v. Saul, 328 U.S. 80 (1963) (prohibition against all persons

except practicing lawyers from engaging in debt adjustment ac-

tivities); Salyer Land Company v. Tulare Lake Basin Water Storage

District, 410 U.S. 719 (1973) (right to vote for Board members of a

special water district restricted to landowners as opposed to tenants

m that district).

10

The permissible bounds which may be reached when con-

structing legislative classifications were recently cited by this

Court in City of New Orieans v. Dukes, 427 U.S. 297 ( 1977).

Therein, the Court stated:

“Unless a classification trammels fundamental

personal rights or is drawn upon inherently

suspect distinctions such as race, religion, or

alienage, our decisions presume the con-

stitutionality of the statutory discriminations and

require only that the classification challenged be

rationally related to a legitimate state interest.’

New Orleans v. Dukes, supra at 303.

In the case of the Arlington County Ordinance, the

legitimate inierest a the government was readily acknowledged

by the Court below; the classification involved in no way ap-

proaches any of the enumerated “‘inherently suspect distinc-

tions;""" and the rationale of the classification is apparent from

the stated purposes of the ordinance.'!! Under these cir-

cumstances, and in light of New Orleans v. Dukes, supra, the

inquiry then focuses on the matter of fundamental rights.

Parking has never been one of the fundamental personal

rights recognized by this Court as being included within the

protection of the Equal Protection Clause. To the contrary, the

regulation of motor vehicles and the control of streets and high-

ways is a well-recognized incident of the governmental police

powers. Sproles v. Binford, 286 U.S. 374 (1932); Silver vy.

Silver, 280 U.S. 117 (1929). Yet the consequence of the decision

by the Supreme Court of Virginia in the instant case is to place

commuter parking in residential areas beyond the control of

government regulation, thereby effectively creating for com-

muters a right to park equivalent to the well-established,

traditionally-protected fundamental rights previously enunciated

by this Court. See, e.g., Harper v. Virginia State Board, 383 U.S.

663, (1966) (Voting Rights); NAACP v. Button, 371 U.S. 415,

(1963) (Access to Courts); NAACP v. Alabama ex rel Patterson,

357 U.S. 449, (1958) (Right of association); Griswold v. Con-

necticut, 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S.

458, (1972) (Right of privacy).

9. Appendix A at 7a.

10. See New Orleans \. Dukes, supra at 303.

11. Appendix D at 25a.

It is simply stretching the fundamental rights issue to the

breaking point to presume that a supposed right to park should

stand on equal footing with the right to vote, the right to privacy,

the right to association, and the right of access to the courts.

Such a determination has yet to be made and there has been no

valid reason advanced to suggest why it should be made at this

point or in the future. If anything, given the current con-

centrated efforts of federal, state and local jurisdictions to

discourage commuter automobile travel and to counteract the

adverse effects therefrom, government regulation and control of

motor vehicle parking in situations such as that presented by the

instant case should be supported rather than discouraged by the

courts.

The Court below further found that ‘‘[I]}t appears from the

face of the ordinance that the crucial basis of the classification is

residence in a selected area.’’ (Appendix A at 7a). The suggestion

is that somehow a classification founded on residence might be

constitutionally suspect. However, the ability of the legislature to

draw a distinction based on residence without infringing on

constitutionally-protected rights has been well established by this

Court. McCarthy v. Philadelphia Civil Service Comm’n., 424

U.S. 645 (1976) (per curiam); City of Pittsburgh v. Alco Parking

Corp., et al., 417 U.S. 369 (1974).

It is significant to note, in connection with the instant case,

that in Alco Parking Corp., supra, the Court specifically

recognized the right of the City of Pittsburgh to distinguish

between residential and non-residential parking and to impose

added burdens on the latter. In this instance a tax on off-street

parking facilities was involved. The City justified treating non-

residential parking differently from residential parking on the

basis of non-residential parking’s ‘‘relationship to traffic

congestion . . . problems requiring municipal services and

affect{ing] the public interest, differently from parking places

accessory to the use and occupancy of residences.’’ Supra at 378.

The Court in Alco was apparently unimpressed that non-

residential parking would bear burdens greater than those ex-

perienced by residential parking. The Court said: ‘‘The City was

constitutionally entitled to put the automobile parker to the

choice of using other transportation or paying the increased

tax.’ Alco, Supra at 379.

12

lt might well have been, as suggested by the Court below,!2

that in earlier times and under different circumstances residents

of premises abutting a public street would have had no greater

right to park on that street or in that area than had any other

member of the general public. But times and conditions change.

The problems addressed in the Arlington Court parking permit

ordinance did not exist and may not have been contemplated

several years ago. These problems and the manner in which they

should be treated must be evaluated in present day terms. This

Court, emphasizing the need for adaptability when dealing with

equal protection guarantees, stated:

[T]he Equal Protection Clause is not shackled

to the political theory of a particular era. In

determining what lines are unconstitutionally

discriminatory, we have never been confined to

historic notions of equality, any more than we

have restricted due process to a fixed catalogue

of what was at a given time deemed to be the

limits of fundamental rights. [Citation omitted]

Notions of what constitutes equal treatment for

purposes of the Equal Protection Clause do

change.’’ Harper v. Virginia State Board of

Elections, supra at 669. (Emphasis added)

2. The Decision Below Violates Previous Holdings of This Court

as to the Extent to Which Local Jurisdictions May Legislate in

the Interest of Preserving and Protecting Residential Neigh-

borhoods.

This Court has traditionally recognized that the preservation

of the character of residential neighborhoods is an appropriate

function of local government. Euclid v. Ambler Realty Com-

pany, 272 U.S. 365 (1926). In Berman v. Parker, 348 U.S. 26

(1957), the Court held that the police power of the State included

the power of the legislature to determine that a community

should be **beautiful as well as healthy, spacious as well as clean,

well-balanced as well as carefully protected.”’ Jd. at 33.

A recent case in point affirming the government's right to

protect the interests of residential neighborhoods is Village of

Belle Terre v. Boraas, 416 U.S. 1 (1974). Therein the Court

12. Appendix A, at 9-10a.

13

upheld action taken by a local legislature to safeguard the

residential character of neighborhoods by imposing restrictions

on the number of unrelated persons who could reside in a single-

lamily home. Mr. Justice Douglas, writing for the majority,

specitically recognized that the restriction of motor vehicles and

the enjoyment of clean air in residential neighborhoods are

legitimate goals of local government, when he stated:

“A quiet place where yards are wide, people

lew, and motor vehicles restricted are legitimate

guidelines in a land-use project addressed to

lamily needs. This goal is a permissible one

within Berman v. Parker, supra. The police

power is not contined to eliminaton of filth,

stench, and unhealthy places. It is ample to lay

out zones where family values, youth values, and

the blessings of quiet seclusion and clean air

make the area a sanctuary for people.’’ Belle

Terre, supra a9.

Mr. Justice Marshall, dissenting in Belle Terre, felt that the

ordinance im question impinged upon fundamental personal

rights and therefore could be sustained only upon the showing of

a compelling governmental interest under the test set out in

Shapiro v. Thompson, 394 U.S. 618 (1969). Nevertheless, Mr.

Justice Marshall found ample reason to agree with the majority

with respect to the government's goal of preserving the character

and quality of residential neighborhoods. He stated:

“| would also agree with the majerity that local

voning authorities may properly act in fur-

therance of the objectives asserted to be served

by the ordinance at issue here: restricting un-

controlled growth, solving traffic problems,

keeping rental costs at a reasonable level, and

making the community attractive to families.

Ihe police power which provides the

justification for zoning is not narrowly con-

tined.”’ Belle Terre, supra at 13 (Marshall, J.

dissenting).

14

Young v. American Mini Theatres, Inc. 427 U.S. 50 (1976),

was an even more recent case supporting the right of local

government to protect the character and quality of its neigh-

borhoods. In Young the Court upheld the right of the City of

Detroit to exclude adult theatres from residential neighborhoods,

among other places. In so doing, the Court ruled that such

restriction did not violate the Equal Protection Clause or First

Amendment guarantees. Mr. Justice Stevens, writing for the

majority in Young stated:

“It is not our function to appraise the wisdom of

its decision to require adult theaters to be

separated rather than concentrated in the same

areas. In either event, the city’s interest in at-

fempting to preserve the quality of urban life is

one that must be accorded high respect.

Moreover, the city must be allowed a reasonable

opportunity to experiment with solutions to

admittedly serious problems.”’ Id. at 71.

(Emphasis added).

Considering the past decisions of this Court consistently

sustaining the legitimacy of governmental goals to secure and

saleguard the residential character of neighborhoods, the

Arlington County ordinance should be upheld on a similar basis.

li the government is considered to have a sufficiently compelling

interest to control the manner of occupancy of dwellings in

residential neighborhoods and to exclude certain categories of

individuals from such occupancy, thereby affecting a fun-

damental right of association, Belle Terre, supra, then it likewise

has a compelling interest in the regulation of parking by non-

residents in congesied residential neighborhoods rendered unsafe

and unhealthy as a result of commuter parking. If the govern-

ment, in the face of First Amendment and Equal Protection

challenges, is found to have a compelling interest in restricting

the locations of adult theaters, Young, supra, it similarly has an

overriding interest in regulating commuter parking in congested

residential areas.

3. The Guidance of This Court is Needed to Resolve

Conflicting Judicial Opinions Throughout the Country on the

Issue Presented by This Petition.

The concept behind the Arlington County parking permit

ee ee

1S

ordinance is not unique to that locality. There is nationwide

interest in this subject matter and, for similar reasons, a number

of other jurisdictions have adopted parking permit programs

closely akin to the Arlington County law.'3 Although for the

most part these differ to some degree in procedural aspects, the

net result is to differentiate between residential and non-

residential parking.

Given the broad scope of the ruling by the Supreme Court of

Virginia in the instant case, virtually all other residential parking

permit laws throughout the ce “try would have to fall if that

decision were accepted as correct. In reality, the state of the law

concerning parking permit ordinances is unsettled. In addition to

the decision below in the instant case and the ruling of a lower

court on the ordinance of Amicus Montgomery County,!4 a

number of other courts in separate areas of the country have

reached differing results as to the validity of residential parking

permit programs.

Mest recently the Supreme Judicial Court of Massachusetts

upheld, in the face of an equal protection challenge, a parking

permit ordinance which restricted parking by non-residents in

certain congested residential areas in the City of Cambridge.

Commonwealth v. Petralia, N.E. 2d ss, No. M-

729, April 29, 1977. Previously an Ohio court held a residential

parking permit program to be violative of equal protection. State

v. Whisman, 24 Ohio Misc. 59, 263 N.E. 2d 411 (1970). Last

year, on similar grounds, the Superior Court for the District of

Columbia preliminarily enjoined the implementation of a

residential parking permit ordinance in certain congested neigh-

borhoods in that jurisdiction. Georgetown Association of

Businessmen v. District of Columbia, Civ. Actions Nos. 7242-76,

et al (Aug. 9, 1976).

It is apparent from the widespread involvement of various

jurisdictions with the issue of parking legislation and the

disparity among lower court decisions on this subject that a

definitive ruling is needed from this Court.

13. See note S, supra.

14. See note 3, supra.

i

16

Unless the Arlington County ordinance and similar

legislation is sustained, jurisdictions will not only lack the ability

to deal locaily with problems affecting residential neighborhoods,

but they will be unable to respond effectively to federal mandates

such as those imposed by the U.S. Environmental Protection

Agency which, among other things, recommend certain

restrictions on commuter traffic.!5 To the extent that a parking

permit ordinance would create a disincentive to commuter

vehicular traffic, in favor of other alternatives, this would be

consistent with the efforts of EPA and various State authorities

to prescribe transportation control measures to reduce ambient

concentrations of carbon monoxide as required by the Federal

Clean Air Act of 1970. (42 U.S.C. §1857 ef seq.).

it will not suffice to say that the impact of the varying lower

court decisions on the matter of parking permit ordinances is

localized in nature and will affect only those subdivisions within

the jurisdiction of those courts. The decision of the Supreme

Court of Virginia is a good case in point.

If Arlington County is judicially restricted from im-

plementing a residential parking permit program, the County will

be impeded from realizing one of the goals of its ordinance-the

enhancement of environmental quality. In such case, the effect of

Arlington County's inability to act will be felt by Amicus

Montgomery County and other jurisdictions which along with

Arlington and Montgomery Counties comprise the Metropolitan

Washington Council of Governments (COG). These component

jurisdictions have been working cooperatively as the National

Capital Interstate Air Quality Planning Committee (AQPC) in

the interest of developing air quality and transportation control

plans for the region.'© The fact that Arlington County and other

Virginia jurisdictions cannot take what are believed to be

necessary Measures to control commuter traffic will impact on

the decisions and actions of the District of Columbia and

Maryland in this regard. Similar effects could well be experienced

in Other multi-jurisdictional areas throughout the country where

Varying legal interpretations of parking permit programs might

come into play.

1S. See 38 bed. Reg. 30626, 30629 (1973)

16. See 38 bed. Reg. 16556 (1973)

17

CONCLUSION

The Arlington County ordinance is reasonably related to its

stated purposes and well wiihin the permissible bounds of

legislative classification recognized by this Court. Accordingly,

the petition of Arlington County for certiorari should be granted.

Under the circumstances of this case, summary reversal of the

judgment below seems appropriate.

Respectfully submitted,

Ronald E. Resh

Special Counsel for Montgomery

County, Maryland

Counsel for Amicus Curiae

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APPENDIX A

MONTGOMERY COUNTY CODE 1972, as amended, Chapter

31, tithed *‘Motor Vehicles and Traffic’’; Article IV, titled

“General Parking Regulations;”’ Section 31-48A, titled ‘*Parking

Permit Areas’’.

(a) The County Council finds that the health, safety and

wellare of many residents of the County are adversely affected

by burdens placed on residents by virtue of major public facilities

and programs created by governmental action. Frequently, the

use Of streets within residential areas for the parking of vehicles

by persons using adjacent commercial, industrial and transit

areas and other areas, facilities and programs emanating from

planning, zoning and other decisions by the government results in

hazardous traffic conditions, the overburdening of existing

streets, roads and other facilities, air and noise pollution, and the

inability of residents of certain areas to obtain adequate parking

adjacent to or close by their places of residence and to secure

ease of access to their places of residence. In order to reduce to

the extent possible the aforementioned conditions, to foster the

use of mass transit facilities and to promote the safety, peace,

good order, comfort, convenience, health and welfare of the

residents of the County, the Council deems it essential that the

parking permit authorization provided for in this Section be

enacted.

(b) The County Executive is hereby authorized to designate,

by written order or regulation, roads, streets and other areas

within the County in which the parking of vehicles may be

restricted, in whole or in part, during certain specified times, to

holders of valid parking permits issued pursuant to this section.

The County Executive shall consider the institution of a parking

permit system upon petition by the residents of a given area. The

authority granted herein shall be in addition to, and may be

exercised in conjunction with, any other authority the County

Executive may have to regulate the times and conditions of

motor vehicle parking.

(c) The designation of a parking permit area shall take into

account, among other things:

(1) The effect on the safety of residents of the area

under consideration from intensive use by non-residents for

parking of vehicles.

2a

(2) The need of the residents of the area to obtain

adequate on-street parking adjacent to or close by their places of

residence.

(3) The difficulty or inability of residents of the area to

secure adequate on-street parking adjacent to or close by their

places of residence because of widespread use of available

parking spaces in that area by non-resident transient motorists.

(4) The impact of major public facilities and programs

on the health, safety, and welfare of the residents of the area and

any unreasonable burdens placed on those residents in securing

adequate on-street parking and gaining access to their places of

residence by virtue of such facilities and programs.

(5) The likelihood of alleviating, by use of a parking

permit system, any problem of non-availability of residential

parking spaces.

(6) The desire of the residents in the area for the in-

stitution of a parking permit system and the willingness of those

residents to bear the administrative costs incidental to the

issuance of permits authorized by this Section.

(7) The fact that the residents of a contemplated

parking permit area have contributed to the cost of construction

and/or improvement of streets and roads in such area either by

the direct assessment of costs or indirectly to the extent such

costs are reflected in purchase or rental prices paid by those

residents.

(8) The need for some parking spaces to be available in

the area under consideration for use by visitors and the general

public.

(9) Such other factors as the County Executive shall

deem relevant.

(d) In order to determine whether a particular area or

location should be designated as a parking permit area, the

County Executive or the Executive’s designee shall conduct, prior

to the designation of a parking permit area, or prior to the with-

drawal of such designation once it is established, a public hearing

at which time any interested person shall be entitled to appear

ee

3a

and be heard. Such hearing shall be held only after due notice

has been published in a newspaper of general circulation

throughout the County. The notice shall clearly state the purpose

of the hearing, the exact location and boundaries of the parking

permit area under consideration, and the reasons why such area

is being proposed for designation or withdrawal of designation as

a parking permit area and the proposed parking permit fee that

would be charged. In addition to the published notice, a similar

notification shall be prominently posted within the area under

consideration for designation as a parking permit area.

(c) Within 45 days following the close of the public hearing,

the County Executive shall decide, based on the record of that

hearing, whether or not to designate the area under consideration

as a parking permit area or to remove the designation in the case

of an established parking permit area. The time for decision by

the County Executive may be extended for an additional period

of 39 da, for good cause shown. The decision of the County

Executive shall be publiciy announced in the same manner as the

announcement of the hearing.

(f) Following the designation of a parking permit area, the

County Executive or the Executive’s designee shall issue ap-

propriate parking permits and shall cause parking signs to be

posted in the area, indicating the times, locations and conditions

under which parking shall be by permit only. Permits shall be

issued only to persons residing on property immediately adjacent

to a street or road within the parking permit area. A permit shall

remain valid for such time as the holder thereof continues to

reside in the area and during the period for which the permit is

issued. Permits may be transferred only in accordance with

procedures to be established in writing by the County Executive.

(g) The County Executive is authorized to establish, after

due notice and opportunity for interested parties to be heard,

written regulations to implement the provisions of this Section.

(h) The County Executive is authorized to establish, by

written regulation, parking permit fee for permits issued pur-

suant to this Section in an amount sufficient to pay the costs

incidental to the issuance of permits authorized by this Section.

(i) The parking of any vehicle or the use of any parking

permit in a manner contrary to the provisions established by the

ta

County Executive pursuant to this Section is prohibited ana the

same is hereby declared to be unlawful and a misdemeanor. Any

person violating this Section shall, upon conviction thereof by a

court of competent jurisdiction, be fined not more than fifty

dollars for each violation and, in default of any fine so imposed,

shall be imprisoned for a period not to exceed three days for each

violation.