Amicus Brief — County Board of Arlington County v. Richards

see,

Supreme Coua, U. &

a. FILED

| APR 29 1977

No. 76-1418

IORI. cr

IN THE

Supreme Court of the United States

October Term, 1976

COUNTY BOARD OF ARLINGTON COUNTY,

VIRGINIA, et al..

Petitioners,

RUDOLPH A. RICHARDS, er al.

Respondents

On Petition for a Writ of Certiorari to

the Supreme Court of Virginia

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF AMICI CURIAE IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

BY CERTAIN ORGANIZATIONS AND IN-

DIVIDUALS FROM ARLINGTON COUNTY

AND SURROUNDING JURISDICTIONS.

WILLIAM H. ALLEN

ROBERT M. SUSSMAN

888 Sixteenth St., N.W.

Washington, D.C. 20006

Attorneys for Amici Curtae

Of Counsel:

COVINGTON & BURLING

AE EE EY I LETTE EI

(3)

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF

EEE EE ae 1

cc ccceceececeees 4

ee kk ce eeees 4

REASONS FOR GRANTING THE WRIT ................. 4

ee ee ee ok eee eeceseceeces 20

INDEX TO CITATIONS

Cases:

A.F. of L. v. American Sash Co.,

EE EEE 11

Allied Stores of Ohio v. Bowers.

ek tec eceeeees 11

Berman v. Parker.

EEE Ee 12, 13, 16

Bibb v. Navajo Freight Lines. Inc..

EES ELLE LE EP EE PETS ET 14

Borden's Co. v. Baldwin.

EEE EE 11

Brvant v. Zimmerman.

EE Ee 11

City of Akron v. Davies.

i ee ke eee eg eeee eet 14

City of Madison v. McManus.

ee cece seeeeess 14

(uw)

Page

City of Milwaukee vy. Hoffman.

St rn CD « <coceecceeceseeeseneseseses 14

City of New Orleans v. Dukes.

| | TTT TTTTTITT Trier iri iri Lt 11

City of Pittsburgh v. Alco Parking Corp..

gS TTT TTT TT TTT TTT TTTiTite 1S

Commonwealth vy. Allen A. Fishman. et al..

hs CEE acancecucéeesédéecesesteeeceteees 19

Commonwealth v. Berney.

i Pr I. «ocdecesooseeessevetseseées 14

Commonwealth v. Dobbins.

nn. SUD. ccccccedbetseceoeseceéadees 14

Commonwealth v. Sargent.

Be Ge CED, DUE s ooo cvcdcccedececesecesenses 14

Dandridge v. Williams.

ee ns 66666 066600csoccececnsessesetedees 11

De Pace v. Mayor and Council of Wilmington,

, ie PPT TITTTT TTT errr ii 14

District of Columbia v. Smith.

SP ee Gs BEND cccccccccccccceccoccccccoese 14

Euclid vy. Ambler Realty Co..

| & EEPPVTTTTTITITTT TTT TT TT TTT Ty 11.16

Georgetown Association of Businessmen v. District

of Columbia. Ciw. Action Nos. 7242-76,

ot ah. Gap On. BC. IGE) 2 cc cccccccccccscccsccccccess 19

Goesaert v. Cleary.

DP enecccecscoeeedéedececceseesceuceses 11

(un)

Page

Kotch v. Board of River Port Pilot Comm'rs.

RE A Eee 11

Lindsley v. Natural Carbonw Gas Co..

I a a i ae 1!

McCarthy v. Philadelphia Civil Serv. Comm'n.

EET ee ee en ee ee 11

McClain v. City of South Pasadena.

ED 5 dc cadnecanndedeseenh és 1S

M- Donald vy. Board of Elections.

te abe oo ke oe eaee da nadeanened 11

McGinnis v. Royster.

en). econo dé oeaundunddscubideneneuae 1

McGowan v. Maryland.

ns. asks di tcney dee ebabdoeunesin 10

Metropolitan Co. v. Brownell.

i d's cadence sébacsecedemeswesuseue 11

People v. Brown.

SI CUED ac cdceosncescseedéuntssecesace 14

Railway Express v. New York.

Hs 1 44 Web db ecdensduecoedecsosenseséenes i

Rast v. Dan Deman & Lewis. :

Pans 6éneesesecebessoscoeséoboenscssedes i!

Ross v. Gunaris.

395 F. Supp. 623(D. Mass. 1975S) .. 2... 6 eee 14

San Antonio School District v. Rodriguez.

PEE 6.6606668e60600 secede cdnneneeeunsesune 11

Schilb v. Kuched.

0 ee ee ee ee 11

(w)

Semler v. Dental Examiners.

EEE eC eccecccccanesecescecessseess

Shapiro vy. Thompson.

PE PPPTITTILITT ITT

Silver v. Silver.

8 PPPTTITITIT TLL TT

Smallwood v. District of Columbia.

SP Cee SEG CUD cccccccéecesecccsecenes

Sosna v. lowa.

SPP ESTED cc cccccccesccccecesecoeseséses

South Carolina Hwy. Dept. v. Barnwell Bros..

Pe BPP UNES Ooh cc cccecccecesecnecesesocéc

South Terminal Corp. v. EPA.

504 F.2d 646 (ist Cir. 1974)... 0... cece cecccccececes

Southern Pacific Co. v. Arizona,

BOD, FEO Ges c cece cccescccccccccscccesess

State of Marviand vy. William L. Thompson.

Criminal No. 19018 (Mary. Cir. Ct. 1977)... 0.200. .5.

State v. Perry.

130 N.W.2d 343 (Minn. 1964)... 2 2 eens

State v. Rush.

it ee ee eee ae veh

State v. Whisman.

263 N.E.2d 411 (Ohio Com. PI. 1970) .. 2... 2. ee eee

Tigner v. Texas.

ee nce ocgiee chbbebeade seboonees

Village of Belle Terre v. Boraas.

+. 246ute6stadtaeeedseeusedsurenus

iv)

Page

Wall v. King.

Sees a, Cee OUD, DUD oc ceccccccccccccoccosese 14

Wardwell v. Bd. of Ed. of City School Dist..

+ oc gie ce ceccseeetasenecees 15

Wells v. Malloy.

CE re 14

Williamson v. Lee Optical Co..

rn id cenddeaedéeuccontabéhetecs 11,16

Young v. American Mini Theaters.

Ee 13,16

Constitutional, Statutory and

Administrative Provisions:

Er Pe 9

NT, on 0 0505 e09006s060nenesséaeneseceseccs 7

EEE 03.5 s6h66d0000b 0640006 cencecenenes 9

SD eck beececmbadsdeusenseeeesedoses 9

IN THE

Supreme Court of the United States

October Term, 1976

No. 76-1418

COUNTY BOARD OF ARLINGTON COUNTY,

VIRGINIA, et a/..

Petitioners.

v.

RUDOLPH A. RICHARDS, et ai.,

Respondents.

On Petition for a Writ of Certiorari to

the Supreme Court of Virginia

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE

The organizations and individuals named in the margin

ask Icave to file the accompanying brief amici curiae in sup-

port of the petition for certiorari.’ Petitioners have con-

sented to the filing of the brief. Respondents withheld their

consent.

The movants are twenty-three citizens associations and

environmental groups from the District of Columbia,

Arlington County, Virginia, and Montgomery County,

Maryland, and eleven individuals who have been elected to

serve as Advisory Neighborhood Commissioners in the

District of Columbia.

‘D.C. Federation of Civic Associations; Federation of Citizens

Associations of the District of Columbia; Upper Northeast Coor-

dinating Council; Wisconsin Avenue Cooridor Committee; Committee

(continued)

|

The movants from Arlington County represent Aurora

Highlands, where the Arlington ordinance at issue in this

case has been implemented, and another Arlington neigh-

borhood that is eligible to become a permit parking area

under that ordinance. As a result, both associations have a

compelling interest in seeing that the decision of the

Supreme Court of Virginia challenged by petitioners is

reversed and the validity of the Arlington ordinance

sustained.

The Maryland and District of Columbia movants all

represent communities where permit parking programs

similar to Arlington's have been enacted and implemented.

Both in Maryland and the District of Columbia, litigation is

underway attacking the validity of these programs, and in

both jurisdictions lower courts have ruled that the

programs are unconstitutional. Without a decision from

this Court sustaining the validity of Arlington's ordinance,

the future of permit parking in both Maryland and the

District of Columbia will be in serious jeopardy. It is a

measure of their commitment to defending permit parking

that three of the movants have been granted leave to intervene

in the District of Columbia litigation where that jurisdic-

tion's program is now under attack. Pursuant to Rule 42 of

of 100 on the Federal City; Metropolitan Washington Coalition for

Clear Air, Inc.; Aurora Highlands Civic Association; Arlington Ridge

Civic Association; Brookland Civic Association; Burleith Civic

Association; Capitol Hill Restoration Society; Foggy Bottom

Association; Forest Hills Citizens Association; Foxhall Community

Citizens Association; Friendship Neighborhood Coalition: Gateway

Community Association; Glover Park Citizens Association; Neighbors.

Inc.: Sheridan-Kalorama Neighborhood Council; Stanton Park Neigh-

borhood Association; East Bethesda Citizens Association, Inc.;

Bethesda Coalition; Parking Action Group of Takoma Park; Harold

Davitt; Marthlu Bledsoe; William Middleton; Charles Clinton; Carol

Currie Gidley; Mary Barry; Eleanor Hansen; Evelyn Wrin; Mary Alice

Branch; Anton Wood; and Raymond Gooch.

3

this Court's rules, leave to file the accompanying brief

should be granted.

WILLIAM H. ALLEN

ROBERT M. SUSSMAN

888 Sixteenth St., N.W.

Washington, D.C. 20006

Attorneys for Movants

Of Counsel:

COVINGTON & BURLING

April 1977

4

IN THE

Supreme Court of the United States

October Term, 1976

No. 76-1418

COUNTY BOARD OF ARLINGTON COUNTY,

VIRGINIA, ef al.

Petitioners,

v.

RUDOLPH A. RICHARDS, er a/..

Respondents.

On Petition for a Writ of Certiorari to

the Supreme Court of Virginia

BRIEF OF AMICI CURIAE

STATEMENT

At issue in this case is a program adopted by Arlington

County, Virginia, to combat the congestion of its residen-

tial neighborhoods with the parked cars of commuters. In

Arlington, as in numerous other urban centers, large office

complexes have been built next to residential communities,

and the workforce at these complexes has taken advantage

of the free parking available on nearby residential streets.

Inevitably, the resulting influx of commuter vehicles has

caused safety hazards, littering, noise, and an absence of

on-street parking for residents and their guests.

Like many other jurisdictions, Arlington has responded

to this threat to the quality of life in some of its residential

neighborhoods by enacting an ordinance that at once seeks

to lessen parking congestion and contribute to the

5

abatement of air pollution in the surrounding metropolitan

area. The ordinance, contained in an amendment to the

County's zoning regulations, empowers the County

Manager to limit parking in designated neighborhoods

during weekday business hours to vehicles displaying per-

mits. Permits can be issued only to residents of the area,

their visitors and persons doing business with them. (Pet.

24a-28a.)' These restrictions may be imposed when the

county manager has determined that, on weekdays during

any given month, more than 75 percent of the on-street

parking spaces in the neighborhood have been occupied

and at least 25 percent of the parked cars have been

operated by persons bound for commercial or industrial

establishments.

The preamble to the ordinance declares that it is de-

signed to protect several aspects of the quality of life in

residential areas congested by commuter parking. Among

these stated purposes are:

“to reduce hazardous traffic conditions resulting

from the use of streets within areas zoned for

residential uses for the parking of vehicles by per-

sons using districts zoned for commercial or in-

dustrial 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

‘Page references in parentheses are to the Appendices of the Petition

for a Writ of Certiorari filed by the County Board of Arlington County.

6

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.”

(Pet. 2Sa.)

The first and only Arlington neighborhood where the or-

dinance has been implemented is Aurora Highlands. This

residential community adjoins a complex of high-rise office

buildings known as Crystal City where approximately

20,000 persons work. (Pet. 4a.) The portion of Aurora

Highlands designated as a permit parking zone consists of

three streets that contain one apartment building and

several duplex and single family homes, a number of which

totally lack off-street parking. Vd.) Soon after the or-

dinance became effective, this action was commenced by

several commuters who work at Crystal City and have been

accustomed to parking on Aurora Highlands’ streets.

Among their grounds for attacking the ordinance, the com-

muters claimed that it denied them the equal protection of

the laws in violation of the Fourteenth Amendment.

At the trial conducted in the Arlington County Circuit

Court, the County demonstrated the serious problems that

commuter parking had created for some of Arlington's

residential neighborhoods and then proceeded to show the

effectiveness of the ordinance in eliminating those

problems during its limited operation in Aurora Highlands.

Before the ordinance was implemented, the County

established, commuter parking in Aurora Highlands had

been “‘bumper-to-bumper.”’ (Rec. 340.” The substantial

traffic along neighborhood streets as commuters searched

for parking spaces had increased noise levels and

threatened the safety of pedestrians, including small

children on their way to and from school. (Rec. 174-75, 225,

“Rec.” refers to Appellant's Appendix filed with the Supreme Court

of Virginia on appeal below.

-

240, 342, 372, 435.) This influx of outsiders had the further

effect of increasing littering, often on residents’ lawns, and

impairing the County's ability to perform routine main-

tenance and repair functions on neighborhood road sur-

faces. (Rec. 177, 180, 234, 340, 356-58, 371, 397.) Moreover,

because of the intense demand for limited numbers of

parking spaces, numerous parking violations had occurred.

Cars frequently blocked hydrants and driveways, and

prohibitions on parking at the edge of intersections were

often ignored, thus jeopardizing the safety and convenience

of residents. (Rec. 234, 244, 331-33, 343-44, 363, 374, 386.)

Extensive parking by commuters on Aurora Highlands’

streets also had the effect of drastically reducing the

parking spaces available to neighborhood residents. For

residents without driveways, the County showed, this loss of

on-street parking imposed especially heavy burdens. (Rec.

371, 384, 477.) But also seriously inconvenienced were the

many residents whose visitors and deliverymen were forced

to park several blocks away from their destinations. (Rec.

179, 233, 242-43, 333, 352, 371, 387, 397, 499, 477.) The

County’s expert witnesses testified that, after three or four

more years, continued parking congestion could be ex-

pected to cause a serious deterioration in the quality of

Aurora Highlands as a neighborhood, and property values

might well decline substantially as a result. (Rec. 253-54,

425, 483, 485.)

The success of the ordinance in eliminating the problems

caused by parking congestion was dramatic. Residents

testified that, while the ordinance was in effect, Aurora

Highlands was a different and far more pleasant place —

with its streets no longer crowded by automobiles, noise

and littering significantly reduced, the safety of pedestrians

improved and an atmosphere of tranquility that residents

had not experienced since Crystal City had been built

several years before. (Rec. 347, 358, 372, 398.)

8

The County presented evidence at trial that, in addition

to its considerable benefits to Arlington neighborhoods, its

permit parking ordinance is part of a region-wide strategy

for curbing automobile use by commuters and thereby im-

proving air quality. (Rec. 259-296.) Under Section 110 of

the Clean Air Act, 42 U.S.C. § 1857c-5, the states and

District of Columbia are required to submit to the En-

vironmental Protection Agency plans for meeting EPA's

national ambient air quality standards. When compliance

with these standards cannot be achieved merely by

regulating stationary pollution sources, EPA has required

States to adopt various transportation control measures, in-

cluding a strategy for reducing the total vehicle miles

travelled in the air quality region. 38 Fed. Reg. 30626

(1973). As part of such a strategy, EPA has recommended

restrictions on commuter parking that will encourage the

greater use of mass transit. /d. at 30629.

Acting under this regulatory scheme, in late 1973 EPA

issued a unified transportation control plan for the District

of Columbia and the portions of Maryland and Virginia

that together constitute the National Capital Interstate Air

Quality Control Region. 38 Fed. Reg. 33702 (1973). As an in-

tegral element of this plan, EPA expressly urged local

jurisdictions to ban on-street parking by commuters and in-

stitute a permit system that would reserve available on-

street parking for residents. Jd. at 33707. An EPA represen-

tative, testifying at the trial below, stated that, pursuant to

the provisions of the National Capital Region plan.

Arlington's permit parking ordinance had been reviewed

and then endorsed in writing by EPA. (Rec. 270-271; Pet.

28a-29a.)

Despite its recognition that it “had the benefit of the testi-

mony of transportation experts. planners, ecologists, and a

representative of the Environmental Protection Agency’”’

(Pet. 21a), the trial court made no findings of fact regarding

the conditions motivating the enactment of the Arlington

9

ordinance or its effects on Aurora Highlands. While

agreeing that the objectives of Arlington's permit parking

ordinance were “‘laud{able],"’ the court concluded broadly

that the classification made by the ordinance — which it

described as constituting ‘‘those who reside in the permit

area, and those who do not’ — did not bear any reasonable

relationship to the ordinance’s stated objectives. (Pet. 21a.)

On this basis, the court found violations of the due process

clauses of the Virginia and Federal Constitution, as well as

of the equal protection clause of the Federal Constitution.

(Pet. 22a.) The court enjoined the County from enforcing

the ordinance in Aurora Highlands. (/d. )

On appeal, the Supreme Court of Virginia also chose not

to discuss the factual record developed by the County. Ex-

pressly finding it unnecessary to address arguments based

on the provisions of the Virginia Constitution, the Supreme

Court concluded that “the ordinance on its face offends the

Equal Protection Guarantee of the Fourteenth Amend-

ment.” (Pet. 12a.) The court recognized that “[ljocal govern-

ments have a legitimate interest in regulating the cause of

the manifold problems which result from arking

congestion.” (Pet. 1la-12a.) However, asserting that ‘‘the

cause of such problems is the use of public streets by

motorists in general, wherever they live or work,” (Pet. 12a),

the court determined that ‘‘the classification created by this

ordinance bears no reasonable relation to its stated ob-

jectives”’. (p. 12a.) On this ground, it affirmed the decision

of the trial court.

REASONS FOR GRANTING THE WRIT

The decision of the Supreme Court of Virginia is in direct

conflict with countless decisions of this Court sustaining,

against equal protection challenge, economic and social

legislation enacted by state and local governments

whenever that legislation has any rational basis. The

10

problem of parking congestion addressed by the Arlington

ordinance exists in numerous metropolitan § areas

throughout the United States. The solution embodied by

the ordinance has been adopted or is under consideration

by several other local governments and represents an im-

portant element of the federal government's strategy for

combatting air pollution. If allowed to stand, the decision

of the Supreme Court of Virginia, along with similar

decisions by other lower courts, will inhibit the enactment

and implementation of permit parking programs like

Arlington's. A decision by this Court reversing the Supreme

Court of Virginia is essential to insure that this important

tool of transportation control and neighborhood preser-

vation remains available to local communities without any

fear that it may be forbidden by the United States Con-

stitution.

1. Many times and over many years, this Court has em-

phasized that the judgments of legislative bodies, exercising

their police powers to promote the welfare of their com-

munities, are entitled to the greatest deference and must be

sustained against equal protection challenge unless the

classification in question is wholly irrational. As stated in

McGowan v. Maryland, 366 U.S. 420, 425-26 (1961):

“Although no precise formula has been

developed, the Court has held that the Fourteenth

Amendment permits the States a wide scope of

discretion in enacting laws which affect some

groups of citizens differently than others. The

constitutional safeguard is offended only if the

classfiication rests on grounds wholly irrelevant to

the achievement of the State's objective. State

legislatures are presumed to have acted within

their constitutional power despite the fact that, in

practice, their laws result in some inequality. A

statutory discrimination will not be set aside if

any state of facts reasonably may be conceived to

justify it.”

The Court has applied this principle in a long line of cases

upholding the widest variety of local legislation, including

statutes touching upon such diverse subjects as local

business practices, professional qualifications, education,

housing conditions and transportation control.’ Just last

term, in fact, in the course of sustaining a New Orleans or-

dinance that granted two long-time pushcart operators a

monopoly on the pushcart business in the French Quarter,

the Court reiterated that it “consistently defers to

legislative determinations as to the desirability of particular

statutory discriminations . . .”’ City of New Orleans v.

Dukes, 427 U.S. 297, 303 (1976).

Ever since Euclid v. Ambler Realty Co., 272 U.S. 36S,

394 (1926), which upheld a zoning ordinance preventing the

erection of apartment buildings and factories in certain

residential areas, the Court has consistently accepted as a

rational basis for challenged legislation the justification

present in this case — protecting the living environment of

"McCarthy v. Philadelphia Civil Serv. Comm'n, 424 U.S. 645

(1976): Sosna v. lowa, 419 U.S. 393 (1975); San Antonio School District

vy. Rodriguez, 411 U.S. 1 (1973); McGinnis v. Royster, 410 U.S. 263

(1973): Schilb v. Kuebel. 404 U.S. 357 (1971); Dandridge v. Williams,

397 U.S. 471 (1970); McDonald v. Board of Elections, 394 U.S. 802

(1969): Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959); William-

son v. Lee Optical Co., 348 U.S. 483 (1955); Railway Express v. New

York. 336 U.S. 106 (1949); A.F. of L. v. American Sash Co., 335 U.S.

538 (1949); Goesaert v. Cleary, 335 U.S. 464 (1948); Kotch v. Board of

River Port Pilot Comm’'rs., 330 U.S. 446 (1947); Tigner v. Texas, 310

U.S. 141 (1940); South Carolina Hwy. Dept. v. Barnwell Bros., 303 U.S.

177 (1938); Semler v. Dental Examiners, 294 U.S. 608 (1935);

Co. v. Brownell, 294 U.S. 589 (1935); Borden's Co. v.

Baldwin, 293 U.S. 194 (1934); Sproles v. Binford, 286 U.S. 374 (1932);

Silver v. Silver, 280 U.S. 117 (1929); Bryant v. Zimmerman, 78 U.S. 63

(1928): Rast v. Van Deman & Lewis, 240 U.S. 342 (1916); Lindsley v.

Natural Carbonic Gas Co., 220 U.S. 61 (1911).

12

local communities against forces that threaten the stability,

safety and tranquility of residential life. For instance, in

Berman v. Parker, 348 U.S. 26 (1954), the Court affirmed

the power of the District of Columbia government to raze

slum dwellings and replace them by more profitable,

privately-owned commercial structures. The Court singled

out for special endorsement the goal of an improved living

environment for District citizens:

“We do not sit to determine whether a par-

ticular housing project is or is not desirable. The

concept of the public welfare is broad and in-

clusive . . . . The values it represents are spiritual

as well as physical, aesthetic as well as monetary.

It is within th®Power of the legislature to deter-

mine that the community should be beautiful as

well as healthy, spacious as well as clean, well-

balanced as well as carefully patrolled. In the

present case, the Congress and its authorized

agencies have made determinations that take into

account a wide variety of values. It is not for us to

reappraise them.”’ /d. at 33.

More recently, in Village of Belle Terre v. Boraas, 416

U.S. 1 (1974), the Court rejected an equal protection

challenge to a zoning ordinance that prohibited more than

two unrelated persons from living together in a single

dwelling unit. The Court emphasized that it was presented

“with economic and social legislation where legislatures

have historically drawn lines which we respect against the

charge of violation of the Equal Protection Clause if the law

be ‘reasonable, not arbitrary’ . . . and bears ‘a rational

relationship to a [permissible] state objective.’ "’ Jd. at 8.

The Court then stressed the importance of protecting

residential areas from vehicular congestion, noise and

polluted air — the very conditions that the Arlington or-

dinance seeks to eliminate:

13

“A quiet place where yards are wide, people

few, and motor vehicles restricted are legitimate

guidelines in a land-use project addressed to

family needs. This goal is a permissible one

within Berman v. Parker. supra. The police power

is not confined to elimination 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.” /d. at 9.

Only last term, in a case where the goal of neighborhood

preservation was in conflict with an even more fundamental

right than the right of association claimed in Belle Terre,

the Court sustained against equal protection attack a

zoning regulation that excluded from a Detroit neigh-

borhood so-called adult motion picture theaters while per-

mitting theaters showing less objectionable films. Young v.

American Mini Theaters, 427 U.S. 50 (1976). To justify this

asserted infringement on the film distributor’s freedom of

expression, the prevailing opinion relied on “the city’s in-

terest in the present and future character of its neigh-

borhoods.”’ /d. at 72.

If anything, the principles affirmed by these cases apply

even more forcefully to legislation that controls the parking

practices of non-resident commuters. Access to parking —

especially free parking near one’s place of employment —

can hardly be equated with those “fundamental rights,”

like exercising the franchise, that this Court has held can be

restricted only when necessary ‘to promote a compelling

governmental interest."* Numerous decisions of the lower

federal courts and state courts have held that there is no

constitutionally protected right to drive an automobile,

much less park it, in the location and manner of one’s

‘Shapiro v. Thompson, 394 U.S. 618. 634 (1969).

14

choice.’ To the contrary, this Court has emphasized that

“the power of the State to regulate the use of its highways is

broad and pervasive,”’ Bibb v. Navajo Freight Lines, Inc.,

359 U.S. 520, 523 (1959), and that traffic regulation is an

area ‘‘with respect to which the state has exceptional scope

for the exercise of its regulatory power,’’ Southern Pacific

Co. v. Arizona, 325 U.S. 761, 783 (1945). State and local

governments routinely forbid trucks to use residential

areas, prohibit parking on certain streets for longer than

two hours or overnight, and create special parking zones for

taxis, buses or emergency vehicles. When challenged in the

courts, these commonplace traffic regulations have been

consistently affirmed.°

Nor can it be seriously claimed that a classification based

on residence, like one based on race or wealth, is ‘“‘suspect”’

and therefore requires the “‘strict scrutiny’ of a reviewing

court.’ Statutory schemes making available to residents

°E.g.. Ross v. Gunaris, 39S F. Supp. 623 (D. Mass. 1975); Wall v.

King. 109 F. Supp. 198 (D. Mass. 1952); Wells v. Malloy, 402 F. Supp.

856 (D. Vt. 1975); People v. Brown, 485 P.2d S00 (Colo. 1971); State v.

Rush, 324 A.2d 748 (Me. 1974).

*E.g.. City of Madison v. McManus, 171 N.W.2d 426 (Wis. 1969);

City of Akron v. Davies, 170 N.E.2d 494 (Ohio 1959); Smallwood v.

District of Columbia, 17 F.2d 210 (D.C. Cir. 1927); District of Colum-

bia v. Smith, 93 F.2d 650 (D.C. Cir. 1937); Commonwealth v. Dob-

bins, 182 N.E.2d 123 (Mass. 1962); C wealth v. Sargent, 117

N.E.2d 154 (Mass. 1953); Commonwealth v. Berney, 233 N.E.2d 739

(Mass. 1968); De Pace v. Mayor and Council of Wilmington, 72 A.2d

439 (Del. 1950); State v. Perry, 130 N.W.2d 343 (Minn. 1964); City of

Milwaukee v. Hoffman, 138 N.W.2d 223 (Wis. 1965S).

The Crystal City commuters are obviously not members of a discrete

and insular minority that is entitled to special treatment under the

equal protection clause. Some of them, to be sure, live outside

Arlington and thus have no formal political say in Arlington affairs.

Many of them, however, do live in Arlington and are no less entitled

than the residents of Aurora Highlands to make their wishes known at

the ballot box every year. The five members of the Arlington County

(continued)

15

governmental benefits denied to non-residents have

repeatedly been sustained against challenge, both in the

lower courts and in this Court, based on the same showing

of reasonableness required for all other legislative

classifications made under the police power."

In this case, a rational basis for Arlington's differing

treatment of residents and non-residents is plainly evident

both from the stated purposes of the permit parking or-

dinance and the record developed at trial. Even on the

theory (apparently embraced by the Supreme Court of

Virginia) that the ordinance is directed solely at the general

problem of parking congestion, singling out vehicles

operated by non-residents for regulation is clearly

reasonable. As the evidence presented by the County

established, the cars of non-resident commuters are the

predominant cause of parking congestion in neighborhoods

such as Aurora Highlands. Surely, Arlington’s County

Board was entitled to limit its prohibition on parking to the

class of vehicles chiefly responsible for congestion and to

spare another class or parkers whose contribution to the

problem was far less serious. This Court has repeatedly em-

phasized that

“Evils in the same field may be of different

dimensions and proportions, requiring different

remedies. Or so the legislature may think. Tigner

(continued)

Board are elected at large and serve four-year staggered terms; at least

one position falls vacant each year. As for Crystal City itself and the

commercial and governmental establishments that it houses, these are

not likely candidates for adversely discriminatory treatment by the

County Board. The Board nurtured the Crystal City project because of

its potential fer invigorating the County's economy.

“McCarthy v. Philadelphia Civil Serv. Comm'n, 424 U.S. 645 (1976)

(per curiam); City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369

(1974): Wardwell v. Bd. of Ed. of City School Dist., 529 F.2d 625 (oth

Cir. 1976); MeClain v. City of South Pasadena, 318 P.2d 199 (Cal. Ct.

App. 1957).

16

v. Texas, 310 U.S. 141. Or the reform may take

one step at a time, addressing itself to the phase of

the problem which seems most acute to the

legislative mind. Semler v. Dental Examiners, 294

U.S. 608. The legislature may select one phase of

one field and apply a remedy there, neglecting the

others."’ Williamson v. Lee Optical Co., 348 U.S.

483, 489 (1955).

Arlington's ordinance, moreover, was not directed

merely at parking congestion generally, whenever and

wherever it occurred. As even a glance at its statement of

objectives demonstrates, the County Board was directly and

explicitly concerned with the special problems which that

congestion creates when it occurs in residential neigh-

borhoods and is caused by non-resident commuters using

neighborhood streets for all-day parking. Under this

Court’s decisions in Euclid. Berman, Belle Terre and

Young, supra, the County unquestionably was entitled to

take measures that would maintain the quality of life in

those neighborhoods, and there can be no dispute that the

ordinance it enacted was rationally calculated to further

that objective. It is almost self-evident that restricting

parking by non-resident commuters will have the effect of

decreasing littering, noise, hazards to pedestrians and

parking infractions and facilitating road maintenance. To

the extent that the connection between such a restriction

and these benefits to the residential environment is not a

matter of common sense, the County proved the point at

trial by presenting abundant evidence that the permit

parking ordinance had in fact accomplished its stated ob-

jectives.

Under the holding of the Court below, however, local

governments like Arlington would be powerless to attack

the unquestionably serious problems that commuter

parking creates for residential neighborhoods without im-

17

posing a sweeping ban on on-street parking that applies to

residents and commuters alike. The practical effect of any

such program would be an even greater deterioration in the

quality of life in these neighborhoods. Instead of competing

with commuters for on-street parking, residents would now

have no on-street parking at all. A program intended to

bene‘it neighborhoods congested by commuter parking

would thus have the opposite effect. Because of the

program, parking in front of one’s own home — which is

taken for granted in ordinary residential neighborhoods —

would become impossible.

The extreme approach required by the Virginia court —

i.e.. banning parking by residents in order to attack the

problems created by non-resident commuters — is not simply

irrational. It ignores the fact that one of the very reasons why

Arlington passed its permit parking ordinance was “to

protect residents . . . from unreasonable burdens in gaining

access to their residences.”’ As the County demonstrated at

trial, a serious consequence of commuter parking in Aurora

Highlands was a reduction in the on-street parking

available for residents and this reduction, in turn, caused

substantial hardships. As the County showed, even those

residents with driveways need on-street parking for

deliveries and guests. (Rec. 179, 233, 242-43, 333, 352, 371,

387, 397, 449, 477.) For residents without driveways, the ab-

sence of parking in front of one’s house and the time lost

searching for an empty parking space represent serious in-

conveniences — so serious, in fact, that some Aurora

Highlands residents decided to incur the expense of

building driveways. (Rec. 371, 385, 477.) Thus, even if the

permit parking program had no other rational objective,

Arlington would clearly have been entitled to recognize the

special need of its residents for on-street parking in front of

their homes and to eliminate the all-day, every-day com-

muter parking that had made parking for residents

unavailable.

Wholly apart from the goal of enhancing the quality of

life in its residential neighborhoods, moreover, Arlington's

differing treatment of residents and non-residents was

rationally related to the objective of lessening air pollution.

As indicated by the EPA representative who testified on

behalf of the County, EPA's transportation control

program is primarily aimed at commuters who travel long

distances to and from work and make a correspondingly

large contribution to the pollutants in the Washington

area's air. (Rec. 282-83, 291.) Parking restrictions that en-

courage commuters to use alternative forms of trans-

portation can clearly achjeve a far more significant re-

duction in overall vehicle miles traveled than equivalent

restrictions on parking by residents, who use their cars for

such strictly local activities as shopping and transporting

children to and from school. Unquestionably, Arlington

County could rationally choose to concentrate its pollution

control efforts on the class of vehicles with the greatest role

in creating pollution and leave other classes of automobile

users unregulated. Thus, along with its many other benefits

to Arlington citizens, the permit parking ordinance served

the reasonable and clearly legitimate governmental purpose

of improving air quality.

2. The permit parking program at issue in this case is

not unique to Arlington County. Counsel for amici know of

similar programs that are either underway or under con-

sideration in Charlottesville and Richmond, Virginia; the

District of Columbia; Montgomery and Prince Georges

Counties, Maryland; Wilmington, Delaware: and Bal-

timore, Boston, San Francisco and Atlanta.

Nor is the decision of the Supreme Court of Virginia the

only instance where implementation of a permit parking

program has been halted by the courts. In State v.

Whisman, 263 N.E.2d 411 (1970), an Ohio lower court held

that a permit parking program was unconstitutional

because it was contrary to the equal protection clause. On

r

19

the same ground, a Superior Court judge in the District of

Columbia last year issued a preliminary injunction against

implementation of the program in Georgetown and three

other District neighborhoods. Georgetown Association of

Businessmen v. District of Columbia, Civ. Action Nos.

7242-76, et al. Three of the amici civic associations, which

represent the neighborhoods in question, have intervened

in the subsequent proceedings in that case. Even more

recently, the permit parking program of Montgomery

County, Maryland, where three of the amici associations

are from, suffered a severe setback when a Maryland Cir-

cuit Court judge held the program unconstitutional. State

of Maryland v. William L. Thompson. Criminal No. 19018.

In yet another case, the validity of Cambridge,

Massachusetts’ permit parking program is now at issue in

an appeal pending before the Supreme Judicial Court.

Commonwealth v. Allen A. Fishman, et al., No. 729. The

lower court decision in that case sustained the program af-

ter initially holding it unconstitutional.

Considering this flurry of lower court litigation, if it

grants certiorari, the Court may be assured that it is

deciding a case of intense interest to several jurisdictions

around the country. Moreover, as the filing of this brief un-

derscores, the constitutional issues presented by

Arlington's permit parking ordinance are extremely im-

portant to the citizens of numerous metropolitan areas that

have adopted, or want to adopt, this important tool of

neighborhood preservation and traffic control.

Yet another consideration makes it vitally important for

the Court to hear this case. Like the Arlington ordinance,

many of the permit parking programs adopted or proposed

in other jurisdictions represent an effort to carry forward

Federal anti-pollution policies as embodied in tran-

sportation control plans issued under the authority of the

Clean Air Act. In the course of reviewing such a plan for

20

metropolitan Boston, the Court of Appeals for the First Cir-

cuit has sustained the validity of a ban on on-street com-

muter parking during morning commuter hours. South

Terminal Corp. v. EPA, SOA F.2d 646 (ist Cir. 1974). Con-

trary to the lower court decisions discussed above, the court

not only upheld this prohibition but made it clear that its

approval was conditioned on the availability of an exemp-

tion from the ban for vehicles belonging to residents. /d. at

671-72. The principle upheld by this decision — that EPA

approved anti-pollution plans may prohibit commuter

parking without imposing equally drastic restrictions on

residents — will be jeopardized if the decisions of the court

below and other courts invalidating permit parking

programs are allowed to stand. Granting the petition of

Arlington County, therefore, is essential to help eliminate a

potentially serious barrier to the effective implementation

of federal environmental policy.

CONCLUSION

The petition for certiorari of Arlington County should be

granted. Because of the sharpness of the conflict between

the decision below and the decisions of this Court. sum-

mary reversal of the judgment below may be appropriate.

Respectfully submitted.

WILLIAM H. ALLEN

ROBERT M. SUSSMAN

88K Sixteenth Street. N.W.

Washington. D.C. 20006

Attorneys for Amici Curtac

01 Counsel.

COVINGTON & BURLING,

April 1977