Amicus Curiae Brief — PFZ Properties, Inc. v. Rodriguez

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am at No. 91-122

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

PFZ PROPERTIES, INC..,

Petitioner,

VS.

RENE ALBERTO RODRIGUEZ, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

MOTION OF THE NATIONAL ASSOCIATION OF HOME

BUILDERS FOR LEAVE TO FILE AN AMICUS CURIAE

BRIEF AND BRIEF IN SUPPORT OF THE PETITIONER

KENNETH B. BLEyY*

Cox, CASTLE & NICHOLSON

2049 Century Park East

28th Floor

Los Angeles, CA 90067

(310) 284-2231

*Counsel of Record

WILLIAM H. ETHIER

NATIONAL HOUSING CENTER

15th & M Streets, N.W.

Washington, D.C. 20005

(202) 822-0359

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-122

PFZ PROPERTIES, INC.,

Petitioner,

vs.

RENE ALBERTO RODRIGUEZ, et al.,

Respondents.

MOTION OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS FOR LEAVE TO FILE AN AMICUS

CURIAE BRIEF IN SUPPORT OF THE PETITIONER

The National Association of Home Builders

(““NAHB”’) has requested the consent of the parties

to file an amicus curiae brief in favor of the

petitioner. As shown by the letter filed with the Clerk

of this Court, the petitioner has consented; the

respondents have declined to respond to our request.

Therefore, pursuant to Rule 37.4 of the Rules of

the Supreme Court of the United States, the NAHB

hereby moves this Court for leave to file the attached

amicus curiae brief on behalf of the petitioner.

THE NAHB’S INTEREST ARISES FROM THE

CONCERNS OF ITS MEMBERS WITH THEIR ABILITY

TO OBTAIN JUDICIAL REVIEW OF STATE ACTION

WHICH DEPRIVES THEM OF THEIR RIGHT TO ENJOY

PROPERTY CREATED BY STATE LAW

The NAHB represents over 153,000 builder and as-

sociate members throughout the United States. Its

members include not only people and firms that con-

struct and supply single family homes but also apart-

ment, condominium, commercial, and _ industrial

builders, as well as land developers and remodelers.

It is the voice of the American shelter industry. It

is, therefore, concerned with any judicial decision that

calls into question the ability of its members to ex-

ercise property rights created by state law.

The NAHB has been before the Court as an amicus

curiae or as “‘of counsel’’ to the property owner in

a number of cases involving the rights of landowners

to use their property and the remedy to be applied

when those rights are interfered with. These include

Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas & Electric Co. v. City of San Diego, 450

U.S. 621 (1981); Williamson County Regional Plan-

ning Commission v. Hamilton Bank, 473 U.S. 172

(1985); MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340 (1986); First English Evangelical Lu-

theran Church of Glendale v. County of Los Angeles,

482 U.S. 304 (1987); and Nollan v. California Coastal

Commission, 483 U.S. 825 (1987).' It asks leave to

file its amicus curiae brief in the present case in

‘The Court’s opinion cited the NAHB’S brief. 483 U.S. at

840.

order to assist this Court in determining whether local

governmental action which arbitrarily and capriciously

interferes with the enjoyment of a property right cre-

ated by state law constitutes a violation of the sub-

stantive due process clause of the Fourteenth

Amendment to the Constitution.

Dated: December 27, 1991

Respectfully submitted,

/s/KENNETH B. BLEY

KENNETH B. BLEY*

Cox, CASTLE & NICHOLSON

2049 Century Park East

28th Floor

Los Angeles, CA 90067

(310) 284-2231

*Counsel of Record

WILLIAM H. ETHIER

NATIONAL HOUSING CENTER

15th & M Streets, N.W.

Washington, D.C. 20005

(202) 822-0359

TABLE OF CONTENTS

Tee Ge TREE spcencnsenncscnecssonessecsensessoense

INTEREST OF THE AMICUS CURIAE ................000.

SUMMARY OF THE ARGUMENT ................ccccessseeees

DTEEEITE . ccccnsusienecencscscsepnsossetanenssseseneenceassennssseonese

I.

Il.

Il.

IV.

THE FIRST CIRCUIT HAS REFUSED TO

RECOGNIZE THAT A LANDOWNER HAS

A PROPERTY RIGHT IN THE USE OF

EIDE SRUEIDTE sicchichansvcnovensnnsatininnonionininieéaiibdasaninds

ARBITRARY AND UNREASONABLE

GOVERNMENTAL ACTION WHICH IN-

TERFERES WITH THE USE OF LAND

VIOLATES A LANDOWNER’S RIGHT TO

SUBSTANTIVE DUE PROCESS ................

WHILE THE FIRST CIRCUIT STANDS

ALONE IN ITS REFUSAL TO RECOG-

NIZE THE POSSIBILITY OF A SUBSTAN-

TIVE DUE PROCESS VIOLATION IN THE

LAND USE CONTEXT, ITS POSITION IS

BEGINNING TO INFLUENCE OTHER

FEY SARUIU EE cctusscecsssenveseseccenssctences

A. The First Circuit’s Position Is Contrary

To The Position Of Every Other Circuit

Which Has Addressed The Question ......

B. The First Circuit’s Position Has Begun

To Influence The Way Some Other Cir-

cuits Are Reviewing Local Government’s

Refusals To Issue State Mandated Land

SE IID censdsdicsencendiandensniiginainnsiipninasie

THERE IS MORE THAN ADEQUATE

PROTECTION UNDER FEDERAL LAW

TO ENSURE THAT FEDERAL COURTS

DO NOT BECOME ZONING BOARDS OF

SPUD <citcdicsssinssiniindteiisnainspeiidnistabainadesatitins

CISC civssisesuscenssreniesnpeietioniiiieninaseneinibiiins

qn

ii

TABLE OF AUTHORITIES

CASES Page

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988) . 8

Bello v. Walker, 840 F.2d 1124 (8d Cir. 1988) ..... 7

Board of Supervisors v. Southland Corporation, 224

Va. 514, 297 S.E.2d 718 (1982) .................00008 11

Carter v. Rollins Cablevision of Massachusetts, Inc.,

634 F.Supp. 944 (D. Mass. 1986) ................... 3

City of Eastlake v. Forest City Enterprises, Inc.,

Se TU EE EUIIED wictenciclicicctuissachamdpionpiinisccadinien 6

Condor Corp. v. City of St. Paul, 912 F.2d 215 (8th

Ry SE teeshetecerhicinnttidnnidnemenenainiisieiddddasbtisimmiienes Py)

Coniston Corp. v. Village of Hoffman Estates, 844

f £ fF f- eee 8

Creative Environments, Inc. v. Estabrook, 680 F.2d

EE WE “UII did inrertinticincnimninebinseaniaentasenss 3,8,10

Crooked Lake Development, Inc. v. Emmet County,

763 F.Supp. 1398 (W.D. Mich. 1991) ............. 10

Dennis v. Higgins, __ U.S. __, 111 S.Ct. 865

STITT sddaciaiienddienatincsngnbentiddinniiiainidtinnginiaabiadauioes 3

G. M. Engineers & Associates, Inc. v. West Bloom-

field Township, 922 F.2d 328 (6th Cir.

SEPTTEET sacioieenidhashinatapibalepiiceninidinnacanabiadalioniedaliamnianetiiniinslinnises 9

Harding v. County of Door, 870 F.2d 430 (7th Cir.

SEEDED snisbsiliceunibiinhinialieaschastidieskigidanehiisaaidaiaiediacddiidstimenivesen i)

Lemke v. Cass County, 846 F.2d 469 (8th Cir.

SUNITTED cheisicisdhassibadacentansidascciebidaniabacepesensambeiiiiiaeisiedaiisigtastade 9

Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.

SEE -Siicacicinsniciaiidinaaenssidiaaiiiahdisaaiaiiadidhitebiibiaaniaventi 7

Lynch v. Household Finance Corp., 405 U.S. 538

SSD saath dicdeedetielbipidicdinteiedceibintniniascaiiebtstindatngstidatianinis 3

Moore v. City of East Cleveland, 431 U.S. 494

SITE TED dasneiisiheiadcithibaninnaistitaneaianeniiaiindianiinieidsensinnnee 6

Nectow v. City of Cambridge, 277 U.S. 183

SETI cicsainiasnseeorapsassabduataddibesinnddantedennadineaddiaeieniniindenidii 6

iil

Table of Authorities Continued

Page

Nollan v. California Coastal Commission, 483 U.S.

OE CIITITET seicinesisidteinitinisehaaseabiitapitadsihdipiniasidldsidanaieinianinen 3

Polenz v. Parrott, 883 F.2d 551 (7th Cir. 1989) ... 7

PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28 (1st

RRR ces REE. SE 3-5,7,10

Sanderson v. Village of Greenhills, 726 F.2d 284

SUE IT ETITIIIET ‘ussushedssiasbishbbeniushoicsliisisiieiaantiiddesindeibernigideinen 7

Schad v. Borough of Mt. Ephraim, 452 U.S. 61

ERNEST ee Ee ee Or 6

Scott v. Greenville County, 716 F.2d 1409 (4th Cir.

DTI c0dipisccbnintpdnteieusamanindinidiiaianeiaapiadamicnindsebes 7

Southern Cooperative Development Fund v. Drig-

gers, 696 F.2d 1347 (11th Cir. 19838) ............. 8

Sullivan v. Town of Salem, 805 F.2d 81 (2d Cir.

TED ksiecnsisnspbedsiniediduindiiennsdiiadiniedieitinenemnetesesne 7

State of Washington ex rel. Seattle Title Trust Co.

v. Roberge, 278 U.S. 116 (1928) ................000 2

United States v. Locke, 471 U.S. 84 (1985) ........... 6

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

SEEDY sastihesiareichicieenssseiniensbiteneslanabenbiebiibianaienniitisilataioes 5,6,9,11

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172 (1985) ......... 6,10

MISCELLANEOUS:

1 Ziegler, Rathkopf’s The Law of Zoning and Plan-

ning, Shift in Burden of Proof, § 5.02[3]

SUUUEEEE cidecuesicinseaiptinimtincibicdienintdeattrindioniennaeins 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-122

PFZ PROPERTIES, INC..,

Petitioner.

vs.

RENE ALBERTO RODRIGUEZ, et al.,

Respondents.

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is set forth in

the preceding motion for leave to file this brief.

SUMMARY OF THE ARGUMENT

The substantive due process clause of the Four-

teenth Amendment protects state created property

rights which, in the context of land use, means the

right to obtain governmental approvals subject to rea-

sonable regulation. It has been the rule, repeatedly

stated by the Court, that arbitrary and unreasonable

actions by local governmental entities violate a land-

owner’s right to substantive due process. Every other

Circuit that has addressed the question has followed

the Court’s clear statement of the law and has held

that a refusal to issue a land use approval to which

a landowner is entitled under state law violates the

landowner’s right to substantive due process.

The First Circuit’s fear that applying the protection

of substantive due process to arbitrary and unrea-

sonable land use decisions will convert federal courts

into zoning boards of appeals overlooks 65 years of

deference to local governmental entities’ actions in

the land use context which means, as a practical mat-

ter, that only the truly wrongful decisions are likely

to be remedied.

ARGUMENT

I.

THE FIRST CIRCUIT HAS REFUSED TO RECOGNIZE

THAT A LANDOWNER HAS A PROPERTY RIGHT IN

THE USE OF ITS LAND

“The right of [a landowner] to devote its land to

any legitimate use is property within the protection

of the Constitution.’ State of Washington ex rel. Se-

attle Title Trust Co. v. Roberge, 278 U.S. 116, 121

(1928).

The Court reemphasized the importance of that

right almost 20 years ago.

Property does not have rights. People have

rights. The right to enjoy property without

unlawful deprivation, no less than the right

to speak or the right to travel, is in truth,

a ‘personal’ right, ... In fact, a fundamental

interdependence exists between the personal

right to liberty and the personal right in

property. Neither could have meaning with-

out the other. That rights in property are

basic civil rights has long been recognized.

Lynch v. Household Finance Corp., 405 U.S. 538, 552

(1972).?

The Court reaffirmed the constitutional protection

afforded the right to use property only four years

ago: “(T]he right to build on one’s own property—

even though its exercise can be subjected to legiti-

mate permitting requirements—cannot remotely be

described as a ‘governmental benefit.’ ’’ Nollan v. Cal-

yfornia Coastal Commission, 483 U.S. 825, 833 n.2

(1987).

Notwithstanding the Court’s clear statements, the

First Circuit has, for over a decade, held strongly to

the view that the right of a landowner to use its land

free of arbitrary and unreasonable governmental in-

terference is not entitled to constitutional protection.

Instead, as far as the First Circuit is concerned, dis-

putes involving the right to use property should be

resolved under state law in state courts. Creative En-

vironments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st

Cir.), cert. denied, 459 U.S. 989 (1982).

It stated that view quite clearly in the case now

before the Court, PFZ Properties, Inc. v. Rodriquez,

928 F.2d 28, 31 (1st Cir. 1991): “This Court has re-

* Lynch has been cited with approval as recently as this year.

Dennis v. Higgins, - U.S. -, 111 S.Ct. 865, 870, 876 (1991).

* A landowner foolish enough to challenge an unfair land use

decision by a local government in the First Circuit is likely to

be held to have brought a frivolous action entitling the local

government to attorneys’ fees under 42 U.S.C. § 1988. Carter

v. Rollins Cablevision of Massachusetts, Inc., 634 F.Supp. 944

(D. Mass. 1986).

peatedly held, however, that rejections of develop-

ment projects and refusals to issue building permits

do not ordinarily implicate substantive due process.

The Court of Appeals recognized that property in-

terests are ‘‘defined by state law’’ and assumed that

“PFZ had acquired a legitimate claim of entitlement

to approval of the construction drawings and to is-

suance of a building permit.’”’ Jd., 928 F.2d at 30.

Nevertheless, it held that the ARPE’s refusal to com-

ply with state law did not constitute a violation of

PFZ’s right to substantive due process.

The doctrine of substantive due process

“does not protect individuals from all [gov-

ernmental] actions that infringe liberty or in-

jure property in violation of some law.

Rather, substantive due process prevents

‘governmental power from being used for

purposes of oppression,’ or ‘abuse of govern-

ment power that shocks the conscience,’ or

‘action that is legally irrational in that it is

not sufficiently keyed to any legitimate state

interests.’ ”’

Id., 928 F.2d at 31-32.

The Court of Appeals concluded:

Even assuming that ARPE engaged in de-

laying tactics and refused to issue permits

for the Vacia Talega project based on con-

siderations outside the scope of its jurisdic-

tion under Puerto Rico law, such practices,

without more, do not rise to the level of vi-

olations to the federal constitution under a

substantive due process label.

Id., 928 F.2d at 32.

If a court is unwilling to provide constitutional pro-

tection to state created property rights, what rights

will it protect? The remainder of this brief will dem-

onstrate that the First Circuit’s position is wrong as

a matter of both precedent and policy.

Il.

ARBITRARY AND UNREASONABLE GOVERNMENTAL

ACTION WHICH INTERFERES WITH THE USE OF

LAND VIOLATES A LANDOWNER’S RIGHT TO

SUBSTANTIVE DUE PROCESS

The Court has, for the last 65 years, reviewed land

use decisions to determine if they violated the land.

owner’s right to substantive due process. Village 0)

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the

seminal land use case, involved an attack on zoning

which was “... assailed on the grounds it is in de-

rogation of section 1 of the Fourteenth Amendment

of the federal Constitution in that it deprives appellee

of liberty and property without due process of law

.... dd., 272 U.S. at 384.

The Court then set forth the basis on which a de-

termination could be made as to whether govern-

mental action constituted a deprivation of property

without due process of law: “‘. . . before the ordinance

can be declared unconstitutional [it must be shown],

that such provisions are clearly arbitrary and unrea-

sonable, having no substantial relation to the public

health, safety, morals or general welfare.”’ Id., 272

U.S. at 395.

Village of Euclid and its statement as to the role

of substantive due process in the land use context

6

) 1 U.S.

are still good law. United States v. Locke, 47

84, 104 (1985); Moore v. City of East Cleveland, 431

U.S. 494, 498 n.6 (1977); and City of Eastlake v.

Forest City Enterprises, Inc., 426 U.S. 668, 676

(1976).

| The Court upheld zoning against a facial attack in

Village of Euclid. Two years later, in Nectow v. City

of Cambridge, 277 U.S. 183 (1928), the Court held

that the application of a zoning regulation to a par-

ticular piece of property was invalid. “The attack upon

the ordinance is that, as specifically applied to plaintiff

in error, it deprived him of his property without due

process of law in contravention of the Fourteenth

Amendment.” Jd., 277 U.S. at 185.

Nectow, like Village of Euclid, is still good law. See,

e.g., Schad v. Borough of Mt. Ephraim, 452 U.S. 61,

68 (1981).

Finally, the Court still reviews governmental ac-

tions involving land use to see if the dictates of sub-

stantive due process have been complied with. See,

e.g., Williamson County Regional Planning Commis-

sion v. Hamilton Bank, 473 U.S. 172, 197 (1985) (no

violation of substantive due process in the denial of

a subdivision map on the facts).

III.

WHILE THE FIRST CIRCUIT STANDS ALONE IN ITS

REFUSAL TO RECOGNIZE THE POSSIBILITY OF A

SUBSTANTIVE DUE PROCESS VIOLATION IN THE

LAND USE CONTEXT, ITS POSITION IS BEGINNING

TO INFLUENCE OTHER FEDERAL CIRCUITS

A. The First Circuit’s Position Is Contrary To The Po-

sition Of Every Other Circuit Which Has Addressed

The Question

The only question being reviewed by the Court is

whether the “arbitrary, capricious or illegal denial of

a construction permit to a developer by officials act-

ing under color of state law can state a substantive

due process claim under 42 U.S.C. § 1983.” See PFZ

Properties, Inc. v. Rodriguez, 112 S.Ct. 414 (1991)

(No.91-122) (cert. granted limited to question two in

the petition).

The First Circuit stands alone in its refusal to pro-

vide substantive due process protection to a state cre-

ated property right. All of the other federal Circuits

which have considered the question have held that a

governmental entity which refuses to issue a land use

approval to which a landowner is entitled under state

law violates the landowner’s right to substantive due

process. See, e.g., Sullivan v. Town of Salem, 805 F.2d

81 (2d Cir. 1986) (certificate of occupancy); Bello v.

Walker, 840 F.2d 1124 (3d Cir.), cert. denied, 488

U.S. 851, 868 (1988) (building permit); Scott v. Green-

ville County, 716 F.2d 1409 (4th Cir. 1983) (building

permit); Sanderson v. Village of Greenhills, 726 F.2d

284 (6th Cir. 1984) (use permit); Polenz v. Parrott,

883 F.2d 551 (7th Cir. 1989) (certificate of occupancy);

Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.

8

1986) (building permit)'; Bateson v. Geisse, 857 F.2d

1300 (9th Cir. 1988) (building permit); and Southern

Cooperative Development Fund v. Driggers, 696 F.2d

1347 (11th Cir.), reh’g denied, 703 F.2d 582 (11th

Cir.), cert. denied, 463 U.S. 1208 (1983) (subdivision

map).

B. The First Circuit’s Position Has Begun To Influence

The Way Some Other Circuits Are Reviewing Local

Governments’ Refusals To Issue State Mandated

Land Use Approvals

None of the other Circuits have retreated from the

position, set forth in the cases cited in Section III.

A., supra, that the wrongful refusal of a local gov-

ernment to issue a state mandated land use approval

constitutes a violation of a landowner’s right to sub-

stantive due process. However, several Circuits and

the district courts in those Circuits have begun, citing

the First Circuit’s position,particularly as set forth in

Creative Environments, supra, to apply a standard of

review which is tantamount to adopting the First Cir-

cuit’s position because the result is, uniformly, to up-

hold the local government’s action.

In Coniston Corp. v. Village of Hoffman Estates,

844 F.2d 461, 466 (7th Cir. 1988), the court stated:

“No one thinks substantive due process should be

interpreted so broadly as to protect landowners

against erroneous zoning decisions.” Creative Envi-

ronments was cited with approval. Coniston Corp.,

844 F.2d at 467.

‘As noted in Section III. B., infra, the Sixth, Seventh, and

Eighth Circuits, under the influence of the First, have begun

to back track on their determinations that a refusal to issue a

land use approval mandated by state law constitutes a violation

of substantive due process.

9

>

The result is that the Seventh Circuit has gone

beyond the rule set down by the Court in Village of

Euclid and now holds that a “zoning decision denies

substantive due process only if it is invidious or ir-

rational. Harding v. County of Door, 870 F.2d 430

431 (7th Cir.), cert. denied, 493 U.S. 853 (1989).

A concurring opinion in Lemke v. Cass Cou

F.2d 469, 472 (8th Cir. 1987), stated that ale

due process claims in the land use context “. . . should

however, be limited to the truly irrational—for ex.

ample, a zoning board’s decision made by flipping a

coin... .’’ The concurrence was based on agreement

with the approach taken by the First Circuit. 846 F.2d

at 472. See also Condor Corp. v. City of St. Paul

912 F.2d 215, 220 (8th Cir. 1990), which holds that

a due process violation can exist in the land use ap-

a context only if it is “egregious” or “irra-

ional’’.

The Sixth Circuit has decided that substantive due

process claims may only be maintained in those sit-

uations where “the alleged conduct shocks the con-

science of the court.” G. M. Engineers & Associates,

Inc. v. West Bloomfield Township, 92

(6th Cir. 1990). tp, 922 F.2d 328, 332

A district court in the Sixth Circuit, relyin

First Circuit’s approach, has stated: “Plaintiff's 2

legations of bad faith, abuse of authority, and arbi-

trary and capricious conduct in local land use

proceeding may state a claim under state law, but

they fail to state a federal claim under the substantive

due process clause of the United States Constitution.”

10

t County,

Crooked Lake Development, Inc. v. Emme

763 F.Supp. 1398, 1403 (W.D. Mich. 1991).°

d above are

Finally, the standards of review quote

also era used by the First Circuit. See PFZ Prop-

erties, 928 F.2d at 31-32, quoted in Section I, supra.

IV.

PROTECTION

THERE IS MORE THAN ADEQUATE

UNDER FEDERAL LAW TO ENSURE THAT FEDERAL

COURTS DO NOT BECOME ZONING BOARDS OF

APPEALS

The First Circuit indicated in Creative Environ-

ments, supra, that it did not want to have district

courts act as zoning boards of appeals and therefore

would not allow “run of the mill’ disputes between

a landowner and a local governmental entity to rise

to the level of a due process violation. 680 F.2d at

833. In doing so, the First Circuit neglected the _

cedural protections which have been erected over the

years by the Court to ensure that decisions, otherwise

proper, by local zoning authorities will not be over-

turned by a district court merely because it (or a

landowner) disagrees with them.

. istrict court in Crooked Lake Development, 763 F.Supp.

at ca ie even further for it stated “that in local land bee

disputes the general substantive due process claim is em “

by the specific guarantees contained in the Fifth noon ye ped

taking clause.’ This is, of course, in complete disregar »! ‘

Court’s analysis in Williamson County Regional be gear ns

mission v. Hamilton Bank, supra, 473 U.S. at 186, w oe e

Court first reviewed the landowner’s claim under the Just ~wsd

pensation Clause and then “under the due process theory tha

petitioners espouse.” Jd., 473 U.S. at 197.

11

“If the validity of the legislative classification for

zoning purposes be fairly debatable, the legislative

judgment must be allowed to control.” Village of Eu-

clid, supra, 272 U.S. at 388. The “fairly debatable’”’

rule means that the local governmental authority is

not even required to show that its decision was cor-

rect by a preponderance of the evidence: it is enough

that it merely adduce evidence to show that its de-

cision was “fairly debatable.”’

The parameters of the judicial review of

legislative zoning decisions are well settled.

The action of the local governing body in

enacting or amending its zoning ordinance is

presumed to be valid. Inherent in the pre-

sumption of legislative validity is the pre-

sumption that the classification that the

ordinance contains, and the distinctions which

it draws, are not arbitrary, are not capri-

cious, but reasonable. Where such presump-

tive reasonableness is challenged by probative

evidence of unreasonableness, the ordinance

cannot be sustained unless the governing

body meets the challenge with some evidence

of reasonableness. But the governing body is

not required to go forward with evidence suf-

ficient to persuade the fact-finder of reason-

ableness by a preponderance of the evidence.

The burden is less stringent. If evidence of

reasonableness is sufficient to make the ques-

tion ‘fairly debatable,’ the ordinance must be

sustained.

Board of Supervisors v. Southland Corporation, 224

Va. 514, 522-523, 297 S.E.2d 718, 722 (1982).. The

Southland case is typical; see 1 Ziegler, Rathkopf's

12

The Law of Zoning and Planning, Shift in Burden of

Proof, § 5.02[3] (1991).

Thus, allowing a landowner to seek judicial review

in the federal courts under the substantive due proc-

ess clause will not, as feared by the First Circuit,

mean that every land use decision will immediately

be at risk nor that the landowner’s lawyer will im-

mediately conclude that the landowner’s chance of

success is higher in federal court than in state court.

CONCLUSION

The position espoused by the First Circuit is con-

trary to long established law laid down by the Court.

It is contrary to the law established in every other

circuit which has considered the question. It estab-

lishes a policy which denies landowners their rights

to protection which goes back to Magna Carta.

It should not be allowed to stand.

Dated: December 27, 1991

Respectfully submitted,

KENNETH B. BLEY*

Cox, CASTLE & NICHOLSON

2049 Century Park East

28th Floor

Los Angeles, CA 90067

(310) 284-2231

*Counsel of Record

WILLIAM H. ETHIER

NATIONAL HOUSING CENTER

15th & M Streets, N.W.

Washington, D.C. 20005

(202) 822-0359

ae ae oe” ae lle OY a -

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