# Amicus Curiae Brief — PFZ Properties, Inc. v. Rodriguez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0171%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 - **Citation:** 503 U.S. 257 ## Text any AD : \! sot 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 - é F --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0171%3A12. Public record. Not legal advice.