Petition for Writ of Certiorari — Hayssen v. Board of Zoning Adjustments

85 . | 9 g a 7 | Supreme Court, U.S,

FILED }

JAN 27 1988

No. a

c JOSEPH F. SPANIOL, JR,

IN THE SUPREME COURT ; GLERK

OF THE UNITED STATES ,

OCTOBER TERM, 1985

MARY HAYSSEN, ALLAN B. GOLDSMITH,

JEANIE A. GOLDSMITH, HARVEY ZOET,

BARBARA LARSON, ROBERT L. LARSON,

and EDWARD HARTNETT,

Petitioners,

vs.

BOARD OF ZONING ADJUSTMENTS OF

THE COUNTY OF SONOMA,

Respondent.

LOREN M. BERRY,

Real Party in Interest.

PETITION FOR WRIT OF CERTIORARI

to the Court of Appeal,

State of California,

First Appellate District

JOSEPH BAXTER, ESQ.

Main Street

Post Office Box 37

Duncans Mills, CA 95430

(707) 865-1311

Attorney for Petitioners

HEERRZEERERBEE GEE.

QUESTIONS PRESENTED

If an individual's address is

identified, may his fundamental

property rights be adjudicated

without notice by mail or its

equivalent to him?

Does the possibility of post-

adjudication review relax the

personal notice standard?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISION

AT ISSUE

STATEMENT OF THE CASE

A.

G.

H.

The Constructive Notive

The Misleading Notice

The Use Permit Hearing

The Noise Impact

The Trial Court Action

The Offer of Proof re

Equitable Facts

Post-Trial Events

The Court of Appeal Decision

REASONS FOR GRANTING THE WRIT

I.

IF AN INDIVIDUAL'S ADDRESS

IS KNOWN, HIS FUNDAMENTAL

PROPERTY RIGHTS CANNOT BE

ADJUDICATED WITHOUT NOTICE

BY MAIL OR ITS EQUIVALENT

TO HIM.

a3.

12

14

14

EEE RRERERERERERLELE

A. Mullane and its Progeny

B. The Decision of the

Court of Appeal

C. The Mullane Test

D. Impact Analysis

II. THE POSSIBILITY OF POST-

ADJUDICATION REVIEW DOES

NOT RELAX THE PERSONAL

NOTICE STANDARD.

CONCLUSION

APPENDIX A

OPINION, COURT OF APPEAL,

STATE OF CALIFORNIA, FIRST

APPELLATE DISTRICT, DIVI-

SION THREE, FILED AUGUST 22,

1985

APPENDIX B

PETITION FOR REVIEW DENIED,

CALIFORNIA SUPREME COURT,

FILED OCTOBER 30, 1985

iii.

Page

14

20

21

22

25

29

TABLE OF AUTHORITIES

Cases

Aaron v. City of Los

Angeles (1974)

40 Cal.App.3d 471,

cert. den., 419 U.S.

1122 (1975) 24, 2

1

ZFEEREERRERE ELE EEE

Armstrong v. Manzo (1965)

380 U.S. 545 26, 27, 29

Christopher v. Jones (1964)

231 Cal.App.2d 408 24

Fuentes v. Shevin (1972)

407 U.S. 67, 32 L.Ed.2d

556 26

Greene v. Lindsey (1982) hie &8

456 U.S. 444 ahy an

Griggs v. Alleghany County

(1962)

369 U.S. 84 24

Goldberg v. Kelly (1970)

397 U.S. 254 23

Greater Westchester Homeowner's

Assn. v. City of Los Angeles

(1979)

26 Cal.3d 86 23

Hairston v. Danville & W.R.

Co. (1908)

208 U.S. 598 a3, 40

iv.

Huntley v. North Carolina

State Board of Education

(4th Cir., 1974)

493 F.2d 1016

Kornoff v. Kingsburg Cotton

Oil Co. (1955)

45 Cal.2d 265

Mennonite Board of Missions

v. Adams (1983)

462 U.S. 791

Mullane v. Central Hanover

fr. Co. (1950)

339 U.S. 306

North Side Property Owners'

Assoc. v. Hillside Memor-

ial Park (1945)

70 Cal.App.2d 609

O'Hagen v. Board of Zoning

Adjustments (1971)

19 Cal.App.3d 151

Schroeder v. New York (1962)

371 U.S. 208

Texarkana v. Arkansas

Louisiana Gas Co. (1939)

306 U.S. 188

Trans-Oceanic Oil Corp. v.

Santa Barbara (1948)

85 Cal.App.2d 776

27

24

18, 19

passim

24

28

15-17

20, 25

26

28

Page

Statutes

28 U.S.C. §1257 2

28 U.S.C. §2101 2

California Code of Civil

Procedure §73la 23, 24, 28

Constitution

Amendment XIV 2

Texts

Miller and Starr, California

Real Estate, §260.44(2) 28

vi.

SeeRee ERE EEE eee tS

No.

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1985

MARY HAYSSEN, ALLAN B. GOLDSMITH,

JEANIE A. GOLDSMITH, HARVEY ZOET,

BARBARA LARSON, ROBERT L. LARSON,

and EDWARD HARTNETT,

Petitioners,

vs.

BOARD OF ZONING ADJUSTMENTS OF

THE COUNTY OF SONOMA,

Respondent.

LOREN M. BERRY,

Real Party in Interest.

PETITION FOR WRIT OF CERTIORARI

to the Court of Appeal,

State of California,

First Appellant District

Petitioners, Mary Hayssen, Jeanie

and Allan Goldsmith, Harvey Zoet,

Barbara and Robert Larson and Edward

Hartnett, pray that a writ of certiorari

issue to review the judgment of the

Court of Appeal of the State of

California in and for the First Appellate

District (1 Civil A020841) entered in

this matter on August 22, 1985.

OPINION BELOW

The opinicn of the Court of Appeal

of the State of California, First

Appellate District and the order of the

Supreme Court of California on October

30, 1985, denying a petition for review,

are reproduced in the appendix.

JURISDICTION

This Court's jurisdiction is

invoked under 28 U.S.C. §§1257 and 2101,

this being a petition arising out of a

right claimed under the Constitution

of the United States. The petition is

filed within 90 days of October 30,

1985.

SHeERBEHEBERBEREAaARE BETS

CONSTITUTIONAL PROVISION AT ISSUE

AMENDMENT XIV:

". . . « nor shall any State

deprive any person of life,

liberty or property without due

process of law; nor deny to any

person within its jurisdiction

the equal protection of law."

STATEMENT OF THE CASE

The facts we state are undisputed

in the record unless otherwise

1

indicated.

Petitioners Mary Hayssen, Jeanie and

Allan Goldsmith, Harvey Zoet, Barbara

and Robert Larson and Edward Hartnett

are owners of real property in a remote

residential area of northern California.

Without notice to them, real party in

interest, Loren Berry, a neighboring

property owner, applied for a conditional

i "R.T." refers to the Reporter's Tran-

- script on Appeal. "450:19-453:16"

refers to pages and lines of the

transcript. "J.A." refers to the

Joint Appendix lodged in the Court

of Appeal.

3.

use permit to build a sawmill on a

thirty acre site adjacent to their

properties. Under existing Sonoma

County zoning, a sawmill could not be

operated without such a permit.

Respondent Sonoma County Board of

ZOning Adjustments ("BZA") set the

matter for hearing on January 27, 1977.

As owners of the principally affected

nearby properties, petitioners were

the parties with most at stake in the

adjudication.

Ignoring mailing addresses at their

disposal (R.T. 367:20-23; 161:21-162:10;

320:22-28), the County made no attempt

to reach petitioners by mail or by any

other means of notice as certain as

notice by mail.

A. The Constructive Notice

The County instead employed notice

by publication and posting. Publication

EERE RERRERAAELEEEEE

consisted of a one-half inch small print

"notice" in the January 11, 1977, edition

of the Sonoma County Press-Democrat.

Posting consisted of approximately eight

(8) notices posted on country roads in the

general vicinity of the proposed sawmill

site (R.T. 450:19-453:16; 487:11-490:14).

Petitioners Hayssen, Goldsmith, Zoet

and Larson had no opportunity whatsoever

to see the posters. Petitioner Hayssen,

a resident of the house closest to the

sawmill site, was in Wisconsin taking

care of her father in 1977 (R.T. 367:

16-17; 440:1-4). The Goldsmiths, who

hola onto their Sonoma County property

for a retirement home, were residing in

central California (R.T. 159:23-28).

Petitioners Larson, who live at their

Sonoma County property during the warmer

months, were residing in Southern

California (R.T. 322:10-14). Petitioner

zZoet was in Holland, Michigan (R.T. 446).

_

Unlike the other petitioners,

petitioner Hartnett was residing on his

property when the notices were posted.

Nonetheless, no Board of Zoning Adjust-

ments posters were placed on or near his

property nor were ever seen by him

(J.A. 336). The closest poster was

placed at a street intersection-more

than on thousand feet (1,000') from

his house (R.T. 221; 245:19-26; 488:28-

489:3).

B. The Misleading Notice

The published and posted notices

provided a wrong address for the proposed

‘mill. The notices identified a site

approximately two thousand feet (2,000')

from the actual building site of the

proposed mill (R.T. 215:15-16; 205:13-

14). A sawmill located at the site

described in the notice would have only

a minimal impact upon the noise environ-

ment of petitioners' properties.

6.

EZERERERRERREEEGEEEE

(R.T. 215:7=-20).

C. The Use Permit Hearing

None of the petitioners were aware

of or attended the January 27, 1977

hearing (J.A. 366). Based upon Berry's

uncontested representations, the BZA

found that the operation of a sawmill

would not be detrimental to the neigh-

borhood and granted a sawmill use permit

(J.A. 11). Condition six of the permit

authorizes Berry to impose up to 65 dBA

of noise on nearby residential premises

(J.A. 12).

D. The Noise Impact

The noise impacts are enormous.

Berry is authorized to operate at noise

levels which double the ambient noise at

the Goldsmith property, quadruple the

ambient noise levels on the Larson and

Hartnett properties, and increase the

ambient noise levels on the Hayssen

property by a factor of thirty (R.T. 161:

14-17; 183:11-20; 195:5-24; 197:20-200:

19; 205:21-22; 206:3-7; 223:8-15;

255-258; 262:17-263:19; 321:13-322:2;

356:19-357:26; 439:15-26; J.A. 529-536).

E. The Trial Court Action

After belatedly learning about the

use permit hearing, certain petitioners

herein during 1978 and up through Jan-

uary, 1979, sought local administrative

relief (R.T. 553:25-554:6). After the

County's refusal to grant any relief

whatsoever, petitioners filed suit on

February 26, 1979, in the Sonoma County

Superior Court, requesting injunctive

and declaratory relief on the ground

that their rights had been adjudicated

by the Board of Zoning Adjustments

without due process notice to them

f'7.A. 1}.

After extensive pre-trial motions,

the matter came to trial in February,

8.

1981. Before hearing all the evidence,

the trial court granted respondents'

motion for judgment, holding that

petitioners were not entitled to better

notice (J.A. 241-245).

F. The Offer of Proof

re Equitable Facts

Since the trial court only heard

evidence relating to the adequacy of the

notice, proof going to the equities

required for injunctive relief has not

yet been allowed (R.T. 28:11-28; 86:27-

87:6; 119:21; 156:14-157:5; 176:13-19;

176:21-22; 177:5-17; 269:16-17; 270:14-

271:2-6; 441:22-24; 550:18-28; 551:1-8;

952:7-10; 553:23-554:11). There is

therefore no complete record as to what

occurred between the date of the BZA

hearing and petitioners' first (1978)

efforts to obtain administrative relief

(Id.). A few facts, however, are un-

controverted in the record:

1. None of the petitioners were

aware of the use permit hearing until

well after the hearing (J.A. 366).

2. Petitioners Goldsmith first

learned about the hearing in Jan-

uary, 1979 (R.T. 162:17-21).

3. Petitioner Hartnett first

learned about the hearing in early

Or mid-1978 (R.T. 234:1-2).

4. Peititioners Larson first

learned about the use permit in

April, 1977. They stated that they

took no action in reliance upon

Berry's representations that they

would not hear the mill (R.T.

331:4-28; 344:15-348:6).

5. It is claimed that petitioner

Hayssen may have heard in August,

1977 about "plans to build a saw-

mill in five to ten years" (R.T.

1G.

ESEeBERERRERERERE Tees

371:29-372:18; 373:2-12; 399:13-400:2).°

While she never had an opportunity to

testify on this subject, she offered

to prove that she first learned about

the use permit hearing in 1978, shortly

before she sought administrative relief

(R.T. 440:14).

6. Petitioners offered to prove that

there was no delay on their part and

The Court of Appeal incorrectly

states that "some appellants

received actual notice of proposed

sawmill construction before and

after the January, 1977 hearing."

(Opinion at p. 5, Appendix A.)

The Court of Appeal also incorrectly

suggests that Mary Haussen received

this notice from a co-owner residing

on the Hayssen property. (Opinion

at p. 19, Appendix A.) The only

evidence whatsoever on this subject

is testimony by witness Bowers, a

tenant at will on the Hayssen

property, and not a co-owner (R.T.

372). He testified that at some time

in 1977 he had heard of plans to

build a sawmill "in five to ten

years," but had absolutely no

knowledge of the January 27, 1977

hearing (R.T. 371:9-372:18; 373:2-12;

399:13=-400:2).

Ai.

that Berry was not prejudiced by any

delay (R.T. 551:1-28; 552:2-10).

G. Post-Trial Events

At the time of filing suit, the saw-

mill had not yet been constructed. Only

declaratory and injunctive relief were

therefore sought. Berry completed his

mill after the trial and now employs his

noise easement to the full extent author-

ized by the use permit.

H. The Court of Appeal

Decision

On August 22, 1985, the California

Court of Appeal, First Appellate District,

Division Three, affirmed the decision of

the trial court. The Court of Appeal

expressly holds that the rule of Mullane

v. Central Hanover Tr. Co., 339 U.S. 306

(1950), does not require notice by mail

or its equivalent in all proceedings

which deprive an individual of property

rights. The court instead espouses "case

2s

SeSeeeeRe Re ERE BEBE

by case determination" and a California

"flexible notice requirement” for land

use adjudications which "refrain(s) from

describing a specific formula which

details the nature, content, and timing

of the requisite notice." (Opinion at

p. 11, Appendix A.) Applying case by

case determination, the court holds that

posted notice is sufficient if the

posters are on highways which adjoining

property owners must use to reach major

stores or services. The court therefore

holds that property owners who were absent

during the posting period or who did not

see the posters have no entitlements

under the Due Process Clause outside of

their right to seek discretionary post-

adjudicatory administrative relief.

On October 30, 1985, the California

Supreme Court voted to deny a petition

for review (Appendix B).

13.

REASONS FOR GRANTING THE WRIT

I.

IF AN INDIVIDUAL'S ADDRESS IS

KNOWN, HIS FUNDAMENTAL PROPERTY

RIGHTS CANNOT BE ADJUDICATED

WITHOUT NOTICE BY MAIL OR ITS

EQUIVALENT TO HIM.

In case after case this Court has

ruled that the state may not adjudicate

a person's property rights without due

process notice. Throughout these

decisions, the Court has held unwaiver-

ingly to the principle that notice by

mail or its equivalent is a constitu-

tional minimum for parties whose identity

and location are reasonably ascertainable.

A. Mullane and its Progeny

In the seminal decision of Mullane

v. Central Hanover Tr. Co., 339 U.S. 306,

this court held that published notice of

an action to settle the accounts of a

common trust fund was not sufficient to

inform beneficiaries whose names and

14.

EERREERREREE GHEE Ee

addresses were known. The Court required

due process notice since "the proceeding

is one in which [the beneficiaries] may

be deprived of property rights." (Id.,

at p. 313.) Under such circumstances

only notice by mail or its effective

equivalent may be employed:

"The means employed must be

such as one desirous of

actually’ informing the

absentee might reasonably

adopt to accomplish it.

The reasonableness and

hence the constitutional

validity of any chosen

mentod may be defended

on the ground that it is

in itself reasonably certain

to inform those affected.

Where the names and post

office addresses of those

affected by a proceeding

are at hand, the reasons

disappear for resort to

means less likely than the

mails to apprise them of its

pendency.

(Mullane v. Central Hanover

Tr. Co., Supra, at 315,

318.)

In Schroeder v. New York, 371 U.S.

208 (1962), this Court held that the

15.

Mullane “personal notice" requirement

extended to statutory compensation

rights arising out of the diversion of

the Neversink River twenty-five miles

upstream from Schroeder's property.

Notice was provided by publication in

local newspapers and twenty-two notices

along a seven or eight mile stretch along

the side of the river in the general

vicinity of plaintiff's property. These

notices were posted during one of the

winter months when Schroeder was away

from the house. Unaware of why the

Neversink River sank, Schroeder did not

file a claim for damages to her property

until 1960, five years after the

statute of limitations had allegedly run.

The court held that the statute of limi-

tations did not apply since the publica-

tion and posting did not satisfy the

personal notice requirement:

16.

Se eeeregkE Ss & ee

"Where the names and post-office

addresses of those affected by a

proceeding are at hand, the reasons

disappear for resort to means less

likely than the mails to apprise

them of its pendency. ..

* * &

"It is true that in addition to

publishing in newspapers, the city in

the present case did put some signs

on trees and poles along the banks of

the river. But no such sign was

placed anywhere on appellant's

property, or ever seen by her. The

posting of these signs, therefore,

did not constitute the personal

notice that the rule enunciated in

the Mullane case requires."

(Schroeder v. New York, supra, at

213.)

In Greene v. Lindsey, 456 U.S. 444

(1982), this Court again rejected the

use of posted notice when important

property rights were at stake. A

Kentucky statute provided that in

forcible entry and detainer actions,

service of process may be made by

posting a summons on the dcor of a

tenant's apartment. In arriving at a

constitutional assessment of this

17.

procedure, the Court noted that posters

are sometimes torn down. Thus, "[iJn a

significant number of instances, reliance

upon posting . . . results in a failure to

provide actual notice.” Id. at 453. The

Court therefcre held that notice by post-

ing on an apartment door is "an unreliabie

notice procedure .. . not reasonably cal-

culated to reach those who could easily

be informed by other means at hand." Id.

at 455-456. Notice by mail, held the Court,

should have been employed. Id. at 455.

In Mennonite Board of Missions v. Adams,

462 U.S. 791 (1983), a mortgagee challenged

a tax sale of which he had no actual notice

where constructive notice was provided by

publication and posting in the county

courthouse. This Court held that the

Mullane personal notice requirement applied

to the mortgagee's legally protected

interests:

18.

an wFwFHHFeeeHHke Ff 2» &

"Since a mortgagee clearly

has a legally protected inter-

est, he is entitled to notice

reasonably calculated to ap-

prise him of a pending tax

sale. C.F. Wiswall v. Sampson,

55 U.8. 52, 67, 14 LEG. 322

(1852). When the mortgagee

is identified in a mortgage

that is publicly recorded, con-

structive notice by publica-

tion must be supplemented by

notice mailed to the mortagee's

last known available address or

by personal service."

(Mennonite Board of Missions v.

Adams, 462 U.S. at 798.)

The Court adds rigor to its rule, noting

"a party's ability to take steps to safe-

guard its interests does not relieve the

State of its consitutional obligation."

Id. at 799.

"Notice by mail or other

means as certain to ensure

actual notice is a minimum

constitutional pre-condition

to a proceeding which will

adversely affect the liberty

Or property interests of any

party whether unlettered or

well versed in commercial

practice, if its name and

address are reasonably ascer-

tainable.” Id. at 799.

(Emphasis in original.)

19.

B. The Decision of the

Court of Appeal

The decision of the Court of Appeal

holds that none of the above cases expressly

rejects the use of vosted notice and that

the cases instead authorize a case by case

appraisal of its constitutional adequacy.

Taking into account a multitude of factors

in land use adjudications, the court con-

cludes that the notice was generally "“rea-

sonably calculated to apprise." (Opinion

at p. 10, Appendix A.)

This Court's decision in Schroeder is

distinguished on the ground that twenty-

two notices were posted "along the seven

or eight mile stretch of the river in the

general vicinity of plaintiff's property"

while in this case notices were posted "on

public highways which adjoining property

owners had to use in order to reach major

stores or services." (Opinion at pp. 14-

15, Appendix A.) Schroeder is likewise

20.

EEEERQEEE RRR LZ EEEE

distinguished on the ground that "statutory

compensation rights were affected" and

"post adjudicatory administrative relief

was not available." (Opinion at p. 15,

Appendix A.) Greene v. Lindsey is distin-

guished on the ground that the renter had

a greater interest in residence in his

apartment than a landowner has in peace

and quiet.

C. The Mullane Test

Despite the vast number of land use

adjudications which have occurred since

the Mullane rule was first articulated, no

court has yet ruled that the Mullane "per-

sonal notice requirement" extends to land

use adjudications. The distinctions drawn

by the California courts create a broad

unexplained exception to the apparent uni-

versality of the Mullane rule.

The Mullane test, however, is unequi-

vocally clear. One must employ notice

as if "desirous of actually informing

ai.

the absentee." Mullane v. Central Hanover

Tr. Co., supra, at 315. Notice by poster

to an absent landowner fails this test.

One desirous of actually informing Mary

Hayssen in Wisconsin would not rely upon a

poster two thousand miles away from her

known whereabouts. The County could not

reasonably calculate that the Larsons in

southern California, the Goldsmiths in

central California, or Harvey Zoet in Michi-

gan would pass by posted notices in Sonoma

County in order to reach major stores or

services.

For petitioner Hartnett, posted notice

was also clearly inferior to notice by mail.

He did not see the posted notice. He would

have seen the notice had the County sent it

by mail.

D. Impact Analysis

An attempt to distinguish this case

from Greene v. Lindsey runs aground on the

facts. It is certainly the rule that the

. . ame 4

2 « - ad 7

_ ae

"extent to which procedural due process

must be afforded . . . depends on the

extent to which [the person affected] may

be 'condemned to suffer a grievous loss.'"

Goldberg v. Kelly, 397 U.S. 254, 262-263

(1970). In some instances, a land use

adjudication may involve minor impacts or

no impact at all upon common law rights.

But this is not such a case.

Prior to the 1977 adjudication, peti-

tioners possessed the right to go to court

to protect the quiet of their land. Greater

Westchester Homeowner's Assn. v. City of

Los Angeles, 26 Cal.3d 86, 91 (1979). This

entitlement vests "by ancient law." Id.

Sonoma County has taken away this right.

Pursuant to California Code of Civil Proce-

3

dure §73la , petitioners are now denied

5

California Code of Civil Procedure §73la

states in pertinent part: (continued)

as

the right to enjoin the BZA approved nuis-

ance. See, e.g. North Side Property Owners'

Assoc. v. Hillside Memorial Park, 70 Cal.

App.2d 609 (1945); Kornoff v. Kingsburg

Cotton Oil Co., 45 Cal.2d 265 (1955);

Christopher v. Jones, 231 Cal.App.2d 408

(1964).

Petitioners' properties have now been

essentially condemned with a noise easement.

See, Griggs v. Alleghany County, 369 U.S.

84 (1962); Aaron v. City of Los Angeles,

40 Cal.App.3d 471 (1974), cert. den., 419

3 (continued)

"Whenever any city, city and county,

or county shall have established

zones or districts under authority

of law wherein certein manufactur-

ing or commercial or airport uses

are éxpressly permitted, except in

an action to abate a public nuisance

brought in the name of the people of

the State of California, no person or

persons, firm or corporation shall

be enjoined or restrained by the

injunctive process from the reason-

able and necessary operation in any

such industrial or commercial zone

Or airport of any use expressly per-

mitted therein. ..

24.

= SSS eee eee Eee eee

U.S. 1122 (1975). Even the power of condem-

nation, however, does not authorize the

government to take one man's property

rights for the benefit of his neighbor.

Hairston v. Danville & W.R. Co., 208 U.S.

598, 605, 606 (1908).

The writ of certiorari should therefore

be granted to clarify the Mullane personal

notice requirement.

II.

THE POSSIBILITY OF POST-ADJUDI-

CATION REVIEW DOES NOT RELAX

THE PERSONAL NOTICE STANDARD.

The decision below also attempts to

distinguish Schroeder on the ground that

the relief granted in Schroeder is differ-

ent from the relief sought for and avail-

4

able in this case. The court's analysis,

The 1979 complaint sought equitable

redress in the form of declaratory

and injunctive relief. Given the

post-trial construction and opera-

tion of the sawmill, this case, upon

remand, could include a request for

damages from the County of Sonoma.

While the Court of Appeal (continued)

23.

confuses the due process notice standard

with the relief available when due process

rights have been denied.

This Court has drawn its line against

such confusion. It has never “embraced

the general proposition that a wrong may

be done if it can be undone." Fuentes v.

Shevin, 407 U.S. 67, 82; 32 L.Ed.2d 556

(1972). Thus in Armstrong v. Manzo, 380

U.S. 545 (1965), an adoption decree was

entered by a divorced mother and her new

husband without due process notice to the

divorced father of the child. After the

decree was entered, the father was noti-

fied of the adoption and promptly filed

(continued) decision contests peti-

tioners' ability to seek relief not

specifically requested in the 1979

complaint, the right in a federal

civil rights action to move to file

a supplemental complaint to state

post-trial facts, upon remand, can-

not be seriously questioned. See,

Texarkana v. Arkansas Louisiana Gas

Co., 306 U.S. 188, 203 (1939).

26.

EREREEREEEEC se tes

a motion to set aside the decree and grant

a new trial. The lower court, without set-

ting aside the adoption decree, granted a

hearing on the motion and "confirmed" the

adoption decree. Id. at 549. This Court

reversed, holding that where due process

notice has been denied only "wiping the

slate clean" cures the error:

"A fundamental requirement of

due process is ‘the opportunity

to be heard.' ... It is an

opportunity which must be granted

at a meaningful time and ina

meaningful manner. The trial

court could have fully accorded

this right to the petitioner only

by granting his motion to set

aside the decree and consider the

case anew. Only that would have

restored the petitioner to the

position he would have occupied

had due process of law been

accorded him in the first place."

(Armstrong v. Manzo, 380 U.S. at

S32.)

See also, Huntley v. North Carolina State

Board of Education, 493 F.2d 1016 (4th Cir.

1974) (providing a de novo hearing does not

undo the prejudice absent a clear ruling

that the first hearing was invalid).

2i.

Petitioners' ambiguous rights under

the use permit are therefore no substitute

for due process. The right to be heard

after a use permit has issued, or after

the construction of a sawmill, obviously

has less meaning than the right to be heard

before the permit issues. A use permit

deemed “properly issued" swallows rights

and enthrones the use permit holder with

Statutory and constitutional entitlements.

C.C.P. §73la; O'Hagen v. Board of Zoning

Adjustments, 19 Cal.App.3d 151, 158-159

(1971); Trans-Oceanic Oil Corp. v. Santa

Barbara, 85 Cal.App.2d 776, 788-789 (1948);

Miller and Starr, California Real Estate,

§260.44[2]. The sawmill operator now

has equities, despite the fact that it

was a violation of the Constitution for

the County to give him the rights of

neighbors. Hairston v. Danville and

W.R. Co., supra, at 605, 606.

28.

BERBER ERE REBEB SRS 2

The constitutional dilemna makes it

difficult for any court to give full relief

"to wipe the slate clean." Armstrong v.

Manzo, supra, at 552. This, however, under-

scores the fundamental error of having

waived the Mullane notice requirement in

the first place and the need to vigorously

explore judicial relief alternatives. While

the wrong done in this case cannot neces-

sarily be undone, it should not establish

a mold for the future.

CONCLUSION

Although more than thirty years old,

the authority of the Mullane personal notice

requirement has been limited to the facts

of that case and the opinions authored by

this Court which follow it. Despite the

innumerable land use adjudications which

have occurred since Mullane v. Central

Hanover Tr. Co. was first announced, no

court has yet ruled that the Mullane notice

requirements extend to land use adjudications

29.

which take away basic property rights. No

decision has yet enumerated the land use

adjudication facts under which the rule

might apply. California courts have now

held that it does not apply at all.

The Mullane personal notice standard

shines as one of the most simple and benefic

rules ever articulated by this Court. In

an individual case the all important duty

is satisfied by the mailing of a single

letter. As a rule, it deserves universal

application in all adjudications embracing

individuals' fundamental property rights.

A clear pronouncement on the reach of

the personal notice rule and further guid-

ance of this Court are therefore required.

For these reasons, a writ of certiorari

should be granted.

Dated: January 27, 1986.

Respectfully submitted,

Die ML (Gap

{a EPH BAXTER /

& torney for Petitioners

30

=a aQeawqeB8seHte@GQgegeEFteatenmts s&s fF

al Sas

"a"

SE BRB BR RRB ER ERB EE SE

APPENDICES

OPINION, COURT OF APPEAL, STATE OF

CALIFORNIA, FIRST APPELLATE DISTRICT,

DIVISION THREE, FILED AUGUST 22, 1985

PETITION FOR REIVEW DENIED, CALIFORNIA

SUPREME COURT, FILED OCTOBER 30, 1985

SHEESSEREEERER REESE

IN THE

COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MARY HAYSSEN, et al.,

Plaintiffs, Appellants,

and Cross-Respondents,

We

SONOMA COUNTY BOARD OF

ZONING ADJUSTMENTS,

Defendant, Respondent

and Cross-Appellant.

LOREN BERRY,

Real Party in Interest

and Cross-Appellant.

FILED: No. A020841

AUGUST 22, 1985 Sup.Ct.No. 101851

PROCEDURAL HISTORY

This is an appeal from a judgment of

the Sonoma County Superior Court entered

on September 10, 1982. Plaintiffs Mary

Hayssen, et al. (hereinafter appellants),

a group of property owners in Sonoma County,

filed a complaint against the Board of

A-l.

Zoning Adjustments of the County of Sonoma

on February 26, 1979. Demurrer on the conm-

plaint was sustained with leave to amend.

Appellants filed their first amended conm-

plaint on June 5, 1979. Demurrer was again

filed and was sustained without leave to

amend as to the first and second causes of

action. The demurrer to the third cause

of action was overruled. A full evidenti-

ary trial was held on the matter by the

court on February 4, 5, 9, 17 and 18, 1981.

Notice of intended decision was filed on

May 27, 1981. Final judgment, together

with findings of fact and conclusions of

law requested by appellants pursuant to

California Rules of Court, rule 232, was

entered on September 10, 1982. Motions to

vacate judgment and for a new trial were

filed on October 20, 1982. The order deny-

ing the motions was entered on December 3,

1982. This appeal was timely filed on

BS eeeeseeBeeeeeeene.s

January 3, 1983. (Cal. Rules of Court,

rule 3(a) and (b).)

FACTS

On December 22, 1976, Loren Berry, the

real party in interest in the instant case,

applied to the County of Sonoma Planning

Department for a conditional use permit

for the construction and operation of a

sawmill on a 30-acre site near the rural

community of Cazadero. The site was zoned

to permit the operation of a sawmill pend-

ing the receipt of a use permit. Pursuant

to Government Code section 65905 and Sonoma

County Code section 203.1 subdivision (a),

the Sonoma County Board of Zoning Adjust-

ments gave notice of a public hearing on

the use permit. The public hearing was

scheduled for January 27, 1977. Notice

consisted of publishing and posting. Pub-

lication occurred on January 11, 1977, in

the Sonoma County Press Democrat, a news-

paper of general circulation within the

A-3.

County of Sonoma. That same day, eight

standard size notices of the projected

use permit application and hearing were

posted around the perimeter of the pro-

posed sawmill site.

All notices contained a technical error

in the description of the subject property.

The error consisted of designating one of

the bordering roads to the property by its

pre-1975 name (Austin Creek Road) rather

than by its 1977 name (Cazadero Highway).

A parallel road was designated as Austin

Creek Road after 1977. No other error in

the description of the subject property is

alleged.

None of the appellants attended the

hearing. A neighboring property owner did

attend, however. At the hearing, the Board

of Zoning Adjustments granted Berry a con-

ditional use permit for the construction

and operation of the sawmill. By its terms,

the permit was made subject to revocation

A-4.

ee ee ee eeeneeenat

or modification by the Board upon a find-

ing of substantial detrimental impact to

neighboring persons or property.

Appellants are a group of property

owners whose holdings adjoin or are in the

vicinity of the disputed sawmill site.

Appellants commenced the instant action

against the Board of Zoning Adjustments

more than two years after the use permit

was granted in 1977. Some appellants

received actual notice of the proposed

sawmill construction before and after the

January 1977 hearing. One appellant

received actual notice of the proposed saw-

mill in April 1977. Between 1977 and 1979,

the owner of the site engaged in substan-

tial preparatory construction activity on

the site in reliance upon the use permit.

Appellants in the court below alleged

that a lack of proper notice as to the hear-

ing violated their civil rights, giving rise

to a claim of action under section 1983 of

A-5.

title 42 of the United States Code. After

a full evidentiary trial, the court below

held that appellants failed to establish

a cause of action under title 42, section

1983 of the United States Code and awarded

costs and attorney's fees to defendant

Board of Zoning Adjustments. Appellants

appeal from this judgment.

Issues presented by the facts of this

case are as follows: (1) whether notice

by posting and publication in a land use

adjudication is constitutionally adequate,

or whether notice by mailing is required;

(2) whether a finding of constitutionality

is defeated by a technically deficient

notice, where no prejudicial effect can be

shown; and (3) whether appellants success-

fully asserted a cause of action under

title 42, section 1983 of the United States

Code.

A-6.

—eeeeebBReBeBeese sess 5

I. CONSTITUTIONALLY ADEQUATE NOTICE

The due process clause of the Fourteenth

Amendment requires, "at a minimum... that

deprivation of life, liberty or property

by adjudication be preceded by notice and

wt

opportunity for hearing. (Mullane v.

Central Hanover Tr. Co. (1950) 339 U.S. 306,

313.) In Mullane, the United States Supreme

Court articulated the standard to be applied

in a due process challenge to adequacy of

notice. "An elementary and fundamental

requirement of due process in any proceed-

ing which is to be accorded finality is

notice reasonably calculated, under all the

circumstances, to apprise interested par-

ties of the pendancy of the action and

- afford them an opportunity to present their

objections." (Id., at p. 314.)

It is by now settled law that the pro-

perty interests of adjacent landowners are

at stake in a land use proceeding, and that

procedural due process protections are

A-7.

therefore invoked. (See Scott v. City of

Indian Wells (1972) 6 Cal.3d 541, 549.)

It is also settled law that the granting

of a conditional land use permit, involving

as it does the "application of general

standards to specific parcels of real

property,'' is adjudicatory in nature and

therefore subject to notice and hearing

requirements. (Horn v. County of Ventura

(1979) 24 Cal.3d 605, 614; San Diego Bldg.

Contractors Assn. v. City Council (1974)

13 Cal.3d 205, 212, appeal dism. 427 U.S.

901 (1976).)

These principles are embodied in state

and local regulatory schemes. Government

Code section 65905, as originally enacted

in 1965, states in relevant part: ‘notice

of hearing [for a conditional use permit]

shall be given by notice through the United

States Mails . . . or by both publication

in a newspaper of general circulation .

and posting said notice in conspicuous

A-8.

BEEEERBEEBEERES#H#t a as

places close to the property affected."

(Stats 1965, ch. 1880, § 6, p. 4350.)+/

Sonoma County Code section 203.1, sub-

division (a) provides for a ten-day notice

of use permit hearings by mail "or by pub-

lication in a newspaper of general circu-

lation and posting in at least three (3)

places on or near the property which was

the subject of the hearing. .

The facts in the instant case indicate

that notice of the land use hearing was

published in a county newspaper of general

circulation and was posted at eight loca-

tions around the perimeter of the subject

property 16 days prior to the actual hear-

ing, thus exceeding then-current state and

local requirements. The court below held

1. This code section was amended in 1984

to require notice by mail. (Gov. Code,

§§ 65905, 65091, added by Stats. 1984, ch.

1009, p. 28.) However, statutes are not

to be applied retroactively in the absence

of a clear legislative intent.

A-9.

that these publication and posting proce-

dures fully met the "reasonably calculated

to apprise" standard of Mullane. We affirm.

In Mullane, the United States Supreme

Court held that statutory notice of a judi-

cial accounting by publication alone was

insufficient as to known beneficiaries of

a common trust fund whose addresses were on

record. (Mullane, supra, 339 U.S. at pp.

318-319.) The rights of the trust benefi-

ciaries were wholly cut of: by the account-

ing procedure. (Id., at p. 311.) Under

these facts, the Mullane court required

notice by mailing. (Id., at p. 319.)

Appellants contend that since their

mailing addresses were also on record with

the county, notice of mailing was also

required in this case. We note, however,

that the Mullane decision requiring mailing

was specific to the facts of that particu-

lar case. The Mullane court did not hold

notice and publication to be per se

A-10.

:

:

constitutionally inadequate, nor did it

hold notice by publication and posting to

be inadequate in land use proceedings.

Indeed, by announcing the flexible notice-

reasonably-calulated-to-apprise standard,

the Mullane court expressly approved a case-

by-case determination of the sufficiency of

a constitutionally required notice. This

case-by-case determination was approved in

a United States Supreme Court decision,

Greene v. Lindsey (1982) 456 U.S. 444, 451.

The California Supreme Court has also

expressly approved a flexible notice require-

ment. "We deliberately refrain from describ-

ing a specific formula which details the

nature, content, and timing of the requi-

site notice. We do observe, however, that

depending on (1) the magnitude of the pro-

ject, and (2) the degree to which a parti-

cular landowner's interest may be affected,

acceptable techniques might include notice

by mail to the owners of record of property

A-1ll.

situate [sic] within a designated radius of

the subject property, or by the posting of

notice at or near the project site, or

both." (Horn v. County of Ventura, supra,

24 Cal.3d at p. 618.) A case by case deter-

mination of the constitutional adequacy of

notice thus continues to be the rule.

Appellants rely on Schroeder v. City of

New York (1962) 371 U.S. 208, for the propo-

sition that notice by mail is required in

land use permit proceedings. Schroeder

involved a condemnation proceeding whereby

the City of New York acquired water diver-

sion rights to a river flowing by the plain-

tiff's property. The United States Supreme

Court held that "in the circumstances of this

case,'' posting and publication as required

by statute did not meet the Mullane standard.

(Id., at p. 211.) The court therefore ruled

that the plaintiff in that case could pro-

ceed with her compensation claim despite the

A-12.

ESeeeeseeeeeaks eee:

tolling of the applicable statute of limita-

tions. (id, , 8 9. 214.)

Schroeder, however, can be distinguished

from the instant case in several important

aspects. First, we note that Schroeder

involved a condemnation proceeding in which

statutory compensation rights were affected.

(Id., at p. 210.) No such rights are at

issue here. Appellants here applied to the

court below for injunctive and declaratory

relief, and are barred from asserting any

damage claims at this stage in the proceed-

ings.

Second, as noted by the Schroeder court,

the Mullane notice requirement as to legally

protected interests "is obviously a vital

corollary to one of the most fundamental

requisites of due process--the right to be

heard." (Id., at p. 212.) Appellants

allege that under California law, the use

permit hearing constitutes a final adjudi-

cation, depriving appellants of the right

A-13.

to enjoin the normal operation of the sawmill

under a nuisance theory. However, under the

terms of the conditional use permit, as noted

above, appellants and others have a continu-

ous and permanent right to be heard by the

Board of Zoning Adjustments as to any pro-

posed revocation or modification of the use

permit based on detrimental impact to their

persons or property. Such post-adjudicatory

administrative relief was not available

under the Schroeder or indeed the Mullane

facts.

Third, in Schroeder the City of New York

posted 22 notices along a seven or eight mile

stretch of the river in the general vicinity

of plaintiff's property. This posting was

found to be insufficient to apprise the

Schroeder plaintiff of the proposed condem-

nation proceedings. (Schroeder, supra, at

p. 210.) By way of contract, the property

at #ssue here was surrounded by notices

posted along all the major roads leading

A-14.

EEEREEB EE ERSRQSEQES2 2

from the proposed sawnill site to neighbor-

ing communities. The county could reason-

ably calculate that posted notices on public

highways which adjoining property owners had

to use in order to reach major stores or

services would apprise them of the contem-

plated action.

Appellants also rely on Greene v. Lind-

sey, supra, 456 U.S. 444, to suggest that

the United States Supreme Court now dis-

approves of posted notice altogether. In

Greene, a Kentucky statute permitting ser-

vice of process by notice posted on a

tenant's door in an unlawful detainer action

and eviction proceeding was found to be con-

stitutionally inadequate as applied to

tenants in a housing project. (Id., at

pp. 445, 456.) Appellant goes far be ond

the holding of Greene in suggesting that

the case bars all notice by posting under

the Mullane standard. In Greene, the court

found notice by posting unreliable because

A-15.

of evidence that such notices were often

torn down by children and others in the

housing project. (Id., at p. 453.) No

such evidence of notices being physically

removed by nonparties has been introduced

here. In addition, the Greene court looked

to the magnitude of the interest involved,

that is, the right of continued residence

in the home, in reaching its determination

that the posted notice was inadequate.

(Id., at p. 451.) We do not find the alleged

noise easement asserted by appellants in the

instant case to be the equivalent of the

interest in continued residence in the home

asserted by the Greene plaintiffs. Nor do

we find the alleged noise easement to equal

the interest in continued welfare entitle-

ments to benefits in Goldberg v. Kelly (1970)

397 U.S. 254, as appellant would suggest.

In summary, we find that the court below

was clearly within the boundaries of apnpli-

cable federal and state authority when it

A-16.

Seeeeeeeeeeents Es:

found the posting and publication notice

to be constitutionally adequate under the

facts of the instant case, and we therefore

do not disturb that finding.

II. TECHNICALLY DEFICIENT NOTICE

Having held that notice by publication

and posting is constitutionally adequate

under the facts of the instant case, we now

turn to the question of whether a technical

deficiency in the notice defeats its consti-

tutionality where no prejudicial effect is

shown. The facts indicate that notice of

the January 27, 1977, hearing erroneously

designated one of the bordering roads to the

proposed sawmill site by its pre-1975 name.

In all other respects, the parcel was cor-

rectly described. The property was fully

posted, with eight standard size notices

placed around the perimeter.

Former Government Code section 65801

states that "[n]o action. . . regarding

any zoning matter by any .. . administrative

A-17.

body . . . shall be held void or invalid or

be set aside by any court .. . by reason

of any error . . . as to any matter pertain-

ing to .. . notices .. . unless after an

examination of the entire case, including

the evidence, the court shall be of the

opinion that the error complained of was

prejudicial, and that by reason of such

error the party complaining or appealing

sustained and suffered substantial injury,

and that a different result would have been

probable if such error had not occurred or

existed. There shall be no presumption

that error is vrejudicial or that injury

was done if error is shown." (Stats 1965,

ch. 1880, § 6, p. 4346.)2/

Appellants argue that former Government

Code section 65801 may not limit the scope

of constitutional rights, nor do we disagree.

2. Repealed in 1984, and replaced by Govern-

ment Code section 65010, containing substan-

tially similar language.

A-18.

EEEREEEEREBEBEREBSGQEE BE:

However, since we do not find a constitu-

tional right to notice by mailing in the

instant case, appellant's argument is inap-

posite. We therefore turn to the question

of whether prejudice resulted from the tech-

nical defect in the notice.

The court below found that while the

property was properly posted and notice of

the hearing was regularly published, no

appellant saw the posted or published notice,

and therefore appellants were not misled by

the error in the description of the property.

Appellants cannot therefore assert that pre-

judice resulted from the technical error, or

that a different result would have obtained

if such error had not occurred or existed.

The court below also found that both before

and after the hearing date, persons residing

on the named appellant's property, including

a co-owner, acted as watchmen on the proposed

sawmill site and were advised by Berry that

he was in the process of building a sawmill.

A-19.

Actual notice of the proposed sawmill was

received by another appellant in April 1977.

There is thus little possibility that appel-

lants would have been fatally misled by the

incorrect designation of one of the border-

ing roads to the property in question if

they had seen the notice. Between 1977 and

1979, the owner of the site engaged in sub-

stantial preparatory construction on the

site in reliance on the use permit. Appel-

lants thus had received both actual and con-

structive notice of the sawmill construction

during the two year period prior to the

initiation of this suit. They therefore

had and continue to have ample time to ini-

tiate proceedings with the Board of Zoning

Adjustments as to a proposed modification

or revocation of the use vermit. Since

appellants did not rely on the notice, and

in fact knew about the proposed sawmill

construction on the site well in advance of

its actual construction, and also have a

A-20.

continuous right of appeal to the Board of

Zoning Adjustments, we find that no preju-

dice to appellants’ interests resulted from

the technical error in the notice. Thus,

technical error cannot be used to defeat

our finding of a constitutionally adequate

notice in the instant case.

III. SECTION 1983 ACTION

Finally, we turn to the issue of whether

appellants successfully asserted a cause of

action under title 42, section 1983 of the

United States Code. Section 1983 is a fed-

eral civil rights statute dating from 1871.

It states in relevant part: ‘Every person,

who, under color of any statute, ordinance,

regulation, custom, or usage, of any State

or Territory of the District of Columbia,

subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to the depri-

vation of any rights, privileges, or immuni-

ties secured by the Constitution and laws,

A-21.

aaa

shall be liable to the party injured in an

action of law, suit in equity, or other pro-

per proceedings for redress."

While section 1983 asserts a federal

cause of action, the United States Supreme

Court has clearly recognized that a state

court can exercise jurisdiction over a sec-

tion 1983 claim. (Maine v. Thiboutot (1980)

448 U.S. 1, 3, fn.1.) Although early case

law held that local governments were immune

from suit under section 1983 (Monroe v. Pape

(1961) 365 U.S. 167, 187) this holding was

specifically overruled in Monell v. New York

City Dept. of Social Services (1978) 436 U.S.

658, 663. In Monell, the United States

Supreme Court concluded that a municipality

or other local governing body was a person

for purposes of section 1983 and could be

sued as such "for monetary, declaratory, or

injunctive relief." (Id., at p. 690.)

There are two elements to stating a

cause of action under section 1983. The

A-22.

plaintiff must first show a deprivation of

a constitutional right, and secondly, must

show that the defendant was acting under

color of state law in depriving the plain-

tiff of this right. (13B Wright, Miller &

Cooper, Federal Practice and Procedure (2d

oe. aves? § Sore.2, Pp. 203.)

As to the first element, section 1983

is not a source of substantive rights but

provides a forum for a remedy only. A sub-

stantive right must be found in the Consti-

tution or in federal law. (Idid.; Chapman

v. Houston Welfare Rights Org. (1979) 441

U.S. 600, 617-618.) The court below found

that appellants did not establish a viola-

tion of the constitutional notice require-

ment, and we affirmed. Therefore, appellants

have failed to establish the first element

of a section 1983 cause of action, and we

therefore need not address the second ele-

ment.

A-23.

In summary, we find that the notice

provided by defendant Board of Zoning

Adjustments meets constitutional standards

and is not defeated by any technical error

contained therein. We further find that

appellant fails to establish a section

1983 cause of action.

The judgment of the court below is

hereby affirmed.

CERTIFIED FOR PUBLICAION

We Concur:

scott. J.

Merrill, J.

A-24.

BBE E BE

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

lst District, Division 3

No. A020841

IN THE

SUPREME COURT OF THE

STATE OF CALIFORNIA

0 ee

ee

HAYSSEN, et al.,

Appellants and Cross-Respondents,

Ws

SONOMA COUNTY BOARD OF ZONING ADJUSTMENTS,

etc.,

Respondent and Cross-Appellant;

BERRY,

Real Party in Interest and Cross-

Apvellant.

FILED: SUPREME COURT

October 30, 1985

Laurence P. Gill, Clerk

/ss/ DM

Clerk

Petition for review of appellants and

cross-respondents DENIED.

/ss/ BIRD

Chief Justice

B-l.