Opposition Brief — Hayssen v. Board of Zoning Adjustments

Supreme Court, U.S.

7 ic oo

No. _ 85-1283

APR 18 1986

IN THE SUPREME COURT

JOSEPH F. SPANIOL, JR.

OF THE UNITED STATES —

OCTOBER TERM 1985

MARY HAYSSEN, ALLEN 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

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

To The Court of Appeal

State of Calfiornia

First Appellate District

GREGORY P. EINHORN, ESQ.

TARKINGTON, O'CONNOR & O'NEILL

350 "E" Street, Suite 200

Santa Rosa, CA 95404

Telephone: (707) 576-1380

Attorneys for Respondent.

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No. 85-1283

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1985

MARY HAYSSEN, ALLEN 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

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

To The Court of Appeal

State of Calfiornia

First Appellate District

GREGORY P. EINHORN, ESQ.

TARKINGTON, O'CONNOR & O'NEILL

350 "E" Street, Suite 200

Santa Rosa, CA 95404

Telephone: (707) 576-1380

Attorneys for Respondent.

aerate caer cenit

QUESTION PRESENTED

Did the trial court and California

Court of Appeal apply the correct

standard of review in determining

that the notice procedures employed

by the County of Sonoma, Board of

Zoning Adjustments, as a prerequi-

site to a use permit hearing, comlied

with due process requirements?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

STATEMENT OF CASE

ARGUMENTS FOR DENYING THE

PETITION

I. The Courts Below Applied

The Correct Standard of

Of Review To the Facts

Before Them The Notice

Employed Was Constitu-

tional

II. Despite Appellants' Argu-

ments, Neither Mullane Nor

Its Progeny Require Personal

Notice: The Mullane Standard

Wes applied By The Courts

Below

III. The Notice Procedvre Utilized

Exceeded Existing State Law

And Local Regulation Granting

This Writ Would Jeopardize

Innumerable Administrative

Hearing

IV. Post Adjudicatory Rights

Contained In The Use Permit

Merely Provide An Additional

Basis For Finding The Notice

Method Used Was Adequate

V. Posting And Such For A Pub-

lication Are Especially Proper

In Situations Involving Land

Use Administration

CONCLUSION

ii

pi |

12

13

TABLE OF AUTHORITIES

Page

Cases

Greene v. Lindsey (1982)

456 U.S. 444 6

Mullane v. Central Hanover

Tr. Co. (1950)

339 U.S. 306 5

Schroeder v. New York (1962)

371 U.S. 208 7

Anderson National Bank v. Luckett

(1944) 321 U.S. 233 6

Horn v. County of Ventura (1979)

24 Cal.3d 605 7

Newberry Springs Water Associa-

tion v. County of San Bernardino

(1984) 150Cal.App,3d 740 10

Zartman v. Reisem (1977)

399 N.Y.S.2d 13

Retzler v. County Executive

(1971) 324 N.Y.S.2d 393 13

Cook v. Marple Tp. Zoning Hearing

Board

(Penn. 1980) 483 A.2d 1105 13

Statutes and Ordinances

Cal. Gov. Code §65905 9

Sonoma County Local Ordinance

203.1. 10

iii

NO. 85-1283

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1985

MARY HAYSSEN, ALLEN 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

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

To The Court of Appeal

State of Calfiornia

First Appellate District

Respondent the Board of Zoning Adjust-

ments of the County of Sonoma (hereinafter

referred to as the "BZA") hereby respect-

fully opposes the Petition for Certiorari

filed with the court by petitioners Mary

‘Hayssen, Allen B. Goldsmith, Jeanie A.

1

—————

Goldsmith, Harvey Zoet, Barbara Larson,

Roberts L. Larson and Edward Hartnett, and

pray that the Writ of Certiorari be denied.

OPINION BELOW

Petitioners claim constitutional error

in the opinion cf the Court of Appeal ,

the State of California, First Appellate

District. This opinion is appended to

petitioners’ Writ of Certiorari.

STATEMENT OF CASE

Despite the tremendous briefing supplied

by petitioners to three California State

Courts, and finally this Court, this law-

Suit concerns a single issue: the constitu-

tional adequacy of the notice procedure

employed by the BZA of a particular use

permit hearing. The arguments raised in

this petition were all raised and considered

below. Significantly, all state courts

below employed the correct standard of

review of the notice procedures:Mullane and

its progeny. Simply, petitioners completely

fail to identify constitutional error in

the California Court of Appeal opinion below.

2

On January 27, 1987, the BZA, following

a public hearing, granted the real party in

interest, Loren Berry,a use permit allowing

construction of a saw mill. This use permit

was the final step in a long administrative

approval process. The saw mill is presently

operational and has been for several years.

The petitioners, persons who avparently

own real property near the saw mill, challenge

the notice procedure for the use permit

hearing utilized by the BZA. This notice

procedure consisted of posting eight formal

notices of the hearing around the perimeter

of Loren Berry's property. In addition,

notice of the hearing was published in the

Sonoma County Press Democrat newspaper on

January 11, 1977. The Press Democrat is

Sonoma County's largest newspaper.

Significantly, the procedures utilized .

by the BZA are specifically approved both

by local ordinance (Sonoma County) and by

California State statute. Both the Sonoma

County Trial Court and the California Court

of Appeal, utilizing well-established stan-

dards of review explicitly determined that

the noticed method utilized by the BZA was

constitutionally adequate.

Notwithstanding that both the trial court

and the California Court of Appeal utilized the

correct standard of review -- indeed, the

standard discussed at length by petitioners

(Mullane) ; notwithstanding that the notice

procedures utilized exceeded both state

statute and locai ordinance; notwithstanding

that the adequacy of notice involved issues

of fact decided adversely to petitioners,

petitioners here have simply raised once

again the sum total of all arguments pre-

viously presented and considered by California

courts since 1979. This appeal presents

absolutely nothing that has not been con-

sidered at least three times before.

Indeed, a review of the California Court

of Appeal opinion reveals consideration by

that court of exactly the same law presented

in the petition.

This petition is therefore without

merit, frivolous and should be denied.

ARGUMENTS FOR DENYING THE PETITION

I. The Courts Below Avplied The

Correct Standard Of Review To

The Facts Before Them The Notice

Employed was Constitutional .

Despite the vast amount of case law

presented by petitioners concerning the

standard of review for determining consti-

tutionality of a particular notice procedure,

this standard of review is actually well

settled:

An elementary and fundamental re-—

guirement of due process in any

proceeding which is to:accord

finality is notice reasonably

calculated under all the circum-

stances to apprise interested

parties of the pendency of the

action and afford them an oppor-

tunity to present their objections.

[Emphasis added]

Mullane v. Central Hanover Bank

& Trust (1950) 339 U.S. 306, 314

Notwithstanding petitioners arguments,

this standard of review was the one precisely

employed by both the trial court as well as

the Court of Appeal (see Court of Appeal

opinion, pages 4 and 5). The trial court's

findings have been thoroughly reviewed and

no error therein was demonstrated by peti-

tioners. Instead, petitioners vaguely

challenge the standard of review employed.

This argument is without merit. The correct

standard of review was applied.

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

the court explained that in assessing whether

constitutionally sufficient notice was pro-

vided, the trier of fact must "look to the

realities of the case before [it]". See

also Anderson National Bank v. Luckett (1944)

321 U.S. 233 (constitutional adequacy of

notice must be read in the light of factual

context). The courts below clearly applied

the appropriate law in determing that the

notice procedure utilized by the BZA was

constitutionally adequate in terms of the

factual context of this case.

II. Despite Appellants' Arguments

Neither Mullane Nor its Progeny

Require Personal Notice: The

Mullane Standard Was Applied

By The Courts Below .

This is not a "no notice" type of case.

The BZA utilized posting and publication

notice procedures specified by Sonoma County

ordinance and by California State statute.

Petitioners argue that the notice procedures

employed were constitutionally defective:

petitioners argue that the constitution in-

. { . . .

Sists upon personal notice in this case.

However, despite petitioners' protesta-

tions, Mullane and its progeny simply do

not require personal notice in all land use

adjudication situations. Indeed, in Schroeder

v. City of New York (1962) 371 U.S. 208, this

court unambiguously held that posting of

publication may be constitutionally adequate

in the land use adjudication context. Indeed,

in Schroeder, this court intimated that

proper posting of notices would have been

constitutionally adequate. Id. at p. 213.

(See also Horn v. County of Ventura [1979]

24 Cal.3d 605, 618; the California Supreme

7

Court holding that posting of notice at

the subjugated site may be appropriate at

the discretion of the iocal government.)

In short, the standard of review set

forth by this court does not hold that posting

and publication is per se unconstitutional.

To the contrary, every court considering that

issue has held such notice procedures to be

proper depending upon the factuai context.

The Mullane standard is fact specific. The

Mullane standard was applied in this case.

The facts, of course, cannot be redetermined

by this court. Simply, both the trial court

and the reviewing court below applied the

Mullane analysis to the facts before them.

Their holdings that the notice utilized by

the BZA was constitutional should not be

disturbed.

IIi. The Notice Procedure Utilized

Exceeded Existing State Law And

Local Regulation Granting This

Writ Would Jeopardize Innumerable

Administrative Hearings

The method of posting and »*blication

utilized by the BZA exceeded the method of

notice expressly sanctioned by California

State Law and Sonoma County local regulations.

California Government Code Section 65905

(applicable at the time of the notice herein;

see court of Appeal opinion, note 1, page 5)

provides:

Whenever an application for a variance

or a conditional use permit or other

permit or revocation or modification

of same or an appeal from the action

taken thereon is submitted to the

body or person charged with conducting

a public hearing thereon, is submitted

to the body or person charged with con-

ducting a public hearing thereon, notice

of hearing shall be given by notice

through the United States mails,

with postage prepaid using addresses

from the last equalized assessment

roll or by alternatively from such

toerh records of the assessor or the _ ,

tax collector as contained more recent

addresses in the opinion of said body,

or by both publication in a newspaper

of general circulation in accordance with

Section 65854 and posting said notice in

conspicuous places close to the property

affected. Procedure for mailing or

posting of said notice shall be governed

by the provisions of the local ordi-

nance. [Emphasis added]

The County of Sonoma local ordinance, as

referred in the last sentence of the pre-

ceeding Government Code Section, provides:

Section 203.1(a): At least ten days'

notice of ali hearings required by

Sections 26-208 and 203 [hearings

on questions of permitted uses] shall

be given by the Planning Director

through the United States mails with

postage prepaid to all persons shown

on the last equalized assesment roll

as assessors of parcels of real prop-

erty within three hundred (300) feet

of the parcel wherein the subject use

is to be located or by publication in a

newspaper of general circulation and

posting in at least three (3) places

on or near the property which is the

subject of the hearing provided, how-

ever, that in the event of an appeal

from an administrative determination

by any official of the County of Sonoma

in connection with the administration of

this Chapter, the Planning Director

need only notice the time and place of

the hearing to the appellant in a man-

ner he deems just and equitable.

[Emphasis added. ]

By publishing and posting notice, the

BZA exceeded existing state law and local

regulation. The BZA's compliance with

state law and local notice procedures is

uncontroverted. In Newberry Springs Water

Association v. County of San Bernardino

(1984) 150 Cal.App.3d 740, the Court held

that:

10

The legislature has *** [affirmed]

the general principle that statutory

requirements for public notice are

fulfilled if the public agency makes

a good faith effort to follow the

procedures prescribed by law for

giving notice.

Granting the petition herein would jeopar-

dize the results of innumerable administrative

hearings held pursuant to the statutory scheme.

IV. Post Adjudicatory Rights Con-

tained In The Use Permit Merely

Provide An Additional Basis For

Finding The Notice Method Used

Was Adequate

Appellants argue that the post adjudicatory

rights provided in the use permit do not comport

with due process requirements. Appellants

cite numerous cases which hold that post

adjudicatory rights may not be a substitute

for due process in the first place. Those

cases are inapposite here. As previously

stated this is not a "no notice" case.

Constitutionally adequate notice posting

and publication was given.

In the California Court of Appeal's dis-

cussion, the Court notes that the use permit

11

provides for the County of Sonoma's con-

tinuing jurisdiction over the saw mill.

This certainly is one relevant factor in

considering the constitutional adequacy of

the notice. The use permit's post adjudicatory

rights granted to persons such as the peti-

tioners are not viewed by the California Court

of Appeal as a “Substitute” for due process.

Contrary to petitioners arguments, these

riaghts do not “relax the personal notice

standard." Mullane simpiy does not require

personal notice. Post adjudicatory rights

are relevant in determining whether the notice

procedures utilized were constitutionally

adequate.

V. Posting And Such For A Publication

Are Especially Proper In Situations

Involving Land Use Administration

All the cases cited by petitioners which

hold publication and posting insufficient

concern drastic taking of property inter-

ests. In fact, there is abundant authority

upholding publication and such or posting of

12

in situations involving land use adminis-

tration, where the results of such adminis-

tration merely affect, rathern than deprive,

land owners of property. For example, a

numper of New York cases reject the notion

that due process requires mailed notice in

land use proceedings. Zartman v. Reisem

(1977) 399 N.Y.S.2d; Retzler v. County

Executive (1971) 324 N.Y.S.2d 393. See also

Cook v. Marple Tp. Zoning Hearing Board

(Penn. 1980) 483 A.2dad 1105, 1106 (published

notice sufficient for hearing regarding

construction of a private racquet ball club

in a residential district).

Moreover, the Court of Appeals obser-

vance of the fact that the use permit retains

jurisdiction with the County of Sonoma

indicates adherence to the principal that

the form of notice utilized depends upon the

nature and severity of the land use. (See

Court of Appeal Opinion, page 7).

CONCLUSION

The sole issue in this case is the

13

constitutionality of notice procedures

utilized by the BZA in connection with a

particular use permit hearing over nine years

ago. Utilizing the well-settled principles

of Mullane and its progeny, the trial,

following a full evidenciary trial spanning

five days, decided this factual issue adverse

to appellants. Petitioners appealed,

bringing forth the same arguments raised in

this petition. In a thorough published

opinion, the Court of Appeal considered

each and eveyr argument and affirmed the

trial court's holding.

Contrary to petitioners' claims,

neither Mullane nor its progeny require

personal notice. Contrary to petitioners

arguments, both the trial court and the

California Court of Appeal applied the

Mullane standard of review in determining

that the notice procedure utilized by the

BZA was constitutionally adequate.

14

For the reasons set forth above, the

Petition for Writ of Certiorari should be

denied.

a |

Dated: Aprii 17, 1986

TARKINGTON, O'CONNOR & O'NEILL

A Professional Corporation

#

By ~ Y/ A ————

Gregory P. Einhorn

Attorney for Respondent

BOARD OF ZONING ADJUSTMENT

OF THE COUNTY OF SONOMA

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