Opposition Brief — Shelton v. City of College Station

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Supreme Court, USs i.

FIL ED

JUN 2 1988

EpH F. SPANIOL, JR.

—

No. 85-1846

10S

—«

LUrer

In The

Supreme Court of the United States

October Term, 1985

ral

FRED B. SHELTON, III and JOHN PAUL JONES,

Petitioners,

VS.

CITY OF COLLEGE STATION, ALBERT MAYO,

E. MURL BAILEY, VIOLETTA BURKE COOK,

PATRICIA BOUGHTON AND JACK UPHAM,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

ft).

Wurm B. ButLer

Counsel of Record

Wooparp, Hatt & Primm

4700 Texas Commerce Tower

Houston, Texas 77002

(713) 221-3800

CatHy Locks

City Attorney

P. O. Box 9960

‘College Station, Texas 77840

(409) 764-3515 °

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

THE QUESTIONS PRESENTED FOR REVIEW

Did the Court of Appeals err, and if so, is the error

of sufficient importance to justify review by this court,

in holding that review of the factual basis for the action

of a city’s zoning board of adjustment claimed to violate

substantive due process is limited to determining whether

there was a conceivable rational basis for the board’s ac-

tion?

Should this Court grant Certiorari because it does

not accept the rationale of the Court of Appeals opinion

when the judgment entered by that Court is correct?

LIST OF PARTIES AND CORPORATE AFFILIATES

The caption on the case as it appears on the cover and

at the beginning of the brief contains the names of all of

the parties. The only corporation which is a party is the

City of College Station, a municipal corporation which has

neither parents, subsidiaries nor affiliates.

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED i

THE PARTIES AND CORPORATE AFFILIATES © ii

ee Rt 8 Sh re 1

Srasmeens OF THE CASE 2

Cg of" be, Sn 3

SUMMARY OF THE ARGUMENT | 5

ARGUMENT

I nl lee 6

2. The Opinion For The En Banc Court Is Cor-

rect SS Me en on 8

3. There Is No Material Conflict Between The

Circuits 12

4. Petitioners Were Not Denied A Property

Right 14

Dd. The Opinion Of The Court Below Shows That

It Reached The Proper Result Even If Its

Principal Reasoning Is Not Endorsed ............... 15

6. The Court’s Judgment Was Proper And Re-

quired For Reasons Not Discussed In Its

Opinion 16

A. The Individual Defendants Are Immune

From Personal Liability . 16

B. The City Cannot Be Held Liable For The

I a cnicenncnencneeraaiinin 17

es eisinidbbinlicasbslisiaossonaion 18

Ee ee A-1

TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon, 447 U.S. 255, 100 8.Ct.

2138, 65 L.Ed.2d 106 (1980) 15

Bennett v. City of Slidell, 697 F.2d 657, (Sth Cir.

1983) aff’d in part and reversed in part 728 F.

2d 762, (en bane 1984) reh. den’d 735 F.2d 861

(en banc 1984), cert. den’d 105 S.Ct. 3249, 87

L.Ed.2d 612

Bennett v. City of Slidell, 728 F.2d 726 (5th Cir.,

en banc) reh. den’d 735 F.2d 861 (5th Cur. en

banc 1984), cert. den’d 105 S.Ct. 3249, 87 L.Ed.

BO MORI scenAsaehetesnsnscncacceabhigtiniees OR SE aD eo ON 17

Board of Adjustment of City of San Antonio v.

Willte, 511 S.W.2d 591 (Tex.Civ.App.—San An-

tonie, 1574, wrt OTE arte) 9

City of San Angelo v. Boehme, 144 Tex. 281,

re Re EE aphececascissiscices ca ananccanaancernniacebdaboienniaene 10

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.

Ct. 114, 71 L.Ed. 3038 (1926) Poa a 8

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,

73 L.Ed.2d 396 (1982) ........ PR SPs OREO ROE ar > 2 RO 16,17

Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103

S.Ct. 505, 74 L.Ed.2d 297 (1982) .......... Pa Ee 8, 11

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

| PREINS ap ie Creamer aasetetonene Tie See Aw VEO Roe A eNO TTO 14

Mitchell v. Forsyth, — U.S. —, 105 S.Ct. 2806, 86

ae MU OE 0 I sche acres dalaRercnpnira Sialadasiaie asetptontioceene 17

Monell v. Department of Social Services, 436 U.S.

658, 98 S.Ct. 2018, 56 L.Kd.2d 611 (1978)

Nu-Way Emulsions, Inc. v. City of Dalworthington

Gardens, 617 S.W.2d 188 (Tex. L981) nn ecceeeecceceeseeeseenee 10

TABLE OF AUTHORITIES—Continued

Pages

Pembaur v. City of Cincinnati, — U.S. —, 106 S.Ct.

By Oe Rie re CT acinicnticittcns 18

Penn Central Transportation Co. v. New York City,

438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)... 15

Rogin v. Bensalem Township, 616 F.2d 680 (3rd

Cir. 1980), cert. den’d 450 U.S. 1029 (1981) 0. 12

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

es IID cesssecccensscretcemscelincasnasendesheds hicintnecdbesatioeeldibeioiacdplsioieasontoniees 12

Scudder v. Town of Greendale, 704 F.2d 999 (7th

ies IED scrciehccucsisecipceasieansansdaoesabacintaeteaiiiats iaciesaasdleneaiuabementaiis idle 13

Shenk v. Zoning Commission, 142 App. D.C. 267,

OG Fe re Ce SI DUE eticicclenns 13

Southern Cooperative Development Fund v. Drig-

gers, 696 F.2d 1347 (11th Cir.) cert. den’d 463

Se, UN I: iecececiscgss ean nteciceocimeatetee anes 13

Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252, 97 S.Ct.

555, 50 L.Ed.2d 450 (1977) csvcwncnenenmmenemennneen 8, 10, 11

Wilkerson v. Johnson, 699 F.2d 325 (6th Cir. 1983)... 13

CONSTITUTIONAL PROVISION

Amendment Fourteen to The United States Con-

IIE ia iii cts nncicneeknlcnn eae cnet eee 6

STATUTE

OE ULTRA. © Te wince ERNE Reese Mert on. Gan 15

LAW REVIEW ARTICLE

K. Pearlman, SECTION 1983 AND THE LIA-

BILITY OF LOCAL OFFICIALS FOR LAND

USE DECISIONS, 23 Urban Law Journal 57 (1982) 17

No. 85-1846

ray

In The

Supreme Court of the United States

October Term, 1985

FRED B. SHELTON, III and JOHN PAUL JONES,

Petitioners,

Vs.

CITY OF COLLEGE STATION, ALBERT MAYO,

E. MURL BAILEY, VIOLETTA BURKE COOK,

PATRICIA BOUGHTON AND JACK UPHAM,

Respondents.

ra’

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

ray

THE OPINIONS BELOW

The citations to the opinions below which appear in

the Petition for Certiorari' are correct. However, the

reproduction of the Opinion of the Court of Appeals en

banc which appears in appendix A to the Petition con-

1The Petition for-Writ of Certiorari is herein cited as Pet.

——. The appendices to that Petition are cited by the appendix

page number as App. ——a.

tains a ‘‘summary”’ preceding the ‘‘opinion’’ which was

in the slip opinion but is not reproduced in the report of

the opinion at 780 F.2d 475.

The reproduction of the finding of fact and conclu-

sions of law of the District Court in appendix C to the

Petition does not include the Judgment of the District

Court which contains the Court’s ruling on respondent’s

motion for allowance of attorneys’ fees. That is repro-

duced as appendix A to this brief.

STATEMENT OF THE CASE

Petitioners sued respondents, a small Texas city,

its city planner and four members of its Zoning Board of

Adjustment (ZBA), asserting that the failure of the ZBA

to grant them variances denied them property without

due process of law. The variances, if granted, would have

permitted petitioners to operate businesses without com-

plying with the provisions of the City’s zoning ordinance

requiring businesses to furnish offstreet parking. Peti-

tioners alleged that they were denied substantive due

process because the action was arbitrary and capricious,

and procedural due process because one of the members

of the ZBA who voted against them should have recused

himself because he was a member of a church which op-

posed the granting of the variances and was prejudiced.

Respondents moved for and were granted summary

judgment. A panel of the Court of Appeals for the Fifth

Cireuit reversed that decision, declaring that the sum-

mary judgment evidence showed that there was a question

of fact as to whether the board’s action was arbitrary or

discriminatory that should be resolved in a plenary trial.

The Court of Appeals en banc reversed that decision, and

affirmed the summary judgment with ten judges joining

the opinion for the Court and five dissenting.

Petitioners now seek to have this Court issue a writ

of certiorari to review that opinion and judgment.

STATEMENT OF FACTS

Petitioners planned to open a pool hall and bar in

space in a building that they had leased. That property,

located directly across a very busy street from the campus

of Texas A & M University, was in a business area re-

ferred to as Northgate. There were serious traffic con-

gestion problems in the Northgate area which were ag-

gravated by a shortage of parking space. The City’s zon-

ing ordinance required all businesses in that area to fur-

nish specified numbers of offstreet parking spaces, but

most of the businesses in the area, operating as non-con-

forming uses in existence at the time the parking require-

ments were imposed, did not furnish the required spaces.

Petitioners applied three times to the ZBA for vari-

ances that would have permitted them to operate the pool

hall and bar, and an additional time for a variance that

would permit them to operate an arcade without comply-

ing with the requirements for furnishing offstreet park-

ing. They argued to the ZBA that the customers for their

proposed businesses would not come by car, but would

walk from nearby dormitories. Therefore, they argued,

their proposed businesses would not aggravate the traf-

fic problems in the Northgate area. Although on some

of the applications petitioners got three of the five ZBA

members to vote to grant them the variances, they were

never able to get the four affirmative votes required by

the zoning ordinance and the Texas statute.

The Texas statutes provide for prompt appeal to the

Texas courts by anyone adversely affected by a ZBA’s

action. Petitioners made no attempt to use this procedure.

Approximately twenty months after the last of their ap-

plications was denied petitioners filed this action seeking

to recover damages from the City and the individual de-

fendants. The complaint alleged that petitioners were en-

titled to equitable relief but no attempt was made to urge

that claim.

After taking petitioners’ depositions, respondents

filed a Motion for Summary Judgment supported by af-

fidavits, ZBA records and references to those depositions.

Respondents’ summary judgment evidence showed that

there was a serious parking problem in Northgate, and

that the ZBA members who votec against granting the

variances believed, and had good reason to believe, that

petitioners’ business would aggravate that problem.

The summary judgment evidence submitted by petitioners

was records of the ZBA showing that more than a year

after the last of petitioners’ applications was acted upon

the ZBA granted variances to other businesses in the area,

plus depositions of defendants and references to their

own depositions. Much of Petitioners’ argument was that

most of the businesses in Northgate were not complying

with the parking requirement, and that their proposed

businesses would not have aggravated the traffic problem.

SUMMARY OF THE ARGUMENT

Respondents assert that the only objection petitioners

have to the opinion for the Court of Appeals is that it

severely restricts the extent to which federal district

courts can review the factual basis for a zoning decision

when the only real complaint is that that decision was

not what the plaintiff wanted it to be.

The Court of Appeals’ characterization of the action

of a ZBA in passing on a request for a variance as quasi-

legislative is correct, but even if it is not the limitation on

factual review reached by that rationale is correct and

should not be disturbed.

Petitioners do not show any conflict between the cir-

cuits. Petitioners assert there is a conflict because cases

from other circuits hold that a substantive due process

claim can be established by showing arbitrary, capricious

or illegal denial of a land use permit. The opinion of the

Court below does not question that principle. It uses it

as a premise for the prescription of limits on the factual

review that a federal court will make to see if it is estab-

lished, a principle that the cited cases do not discuss.

Neither a variance nor a procedure for getting one

is ‘‘property’’. Even if it be assumed, arguendo, that pe-

titioners were denied due process, summary judgment

against them was proper because they were not denied

‘*property”’’.

Even if this Court does not agree that-factual review

of the ZBA’s actions should be limited because those ac-

tions are quasi-legislative, a more extensive review of

those actions, not limited by that rationale, shows that

petitioners were not denied due process.

Apart from the reasons discussed in its opinion, the

Court of Appeals’ judgment affirming the summary judg-

ment for defendants was correct because (1) the indi-

vidual defendants are entitled to immunity from personal

liability, and (2) the city cannot be held liable for ZBA’s

denial of variances because that action did not make, nor

was it pursuant to, city policy.

ARGUMENT

1. Introduction

Underlying all of Petitioners’ arguments that this

Court should review this case is their objection to the

opinion for the Court of Appeals because of the limits

made clear by that opinion on the review by a federal

court of the factual basis for an action by a local zoning

agency. In Petitioners’ words, the Court’s opinion ‘‘pre-

cludes any meaningful review.’’ (Pet. 11) The peti-

tioners’ arguments do not acknowledge that this rule is

applied only when the complaint is that the zoning action

denied the plaintiff substantive due process.

The essence of the court’s opinion to which those ar-

guments are directed is:

‘“‘(The] requirement of substantive due process un-

der the Fourteenth Amendment ... is met if there

was any conceivable rational basis for the zoning

decision.’’ (emphasis added).

780 F.2d at 477, App. 5a.

The effect of this opinion is to make it possible to

dispose of a case quickly when a plaintiff’s only real com-

plaint is that a local zoning board did not make the zon-

ing rulings that plaintiff wanted. As soon as it is estab-

lished beyond question that there is a conceivable rational

basis for the board’s decision review of the factual basis

for that decision ends. The claim of denial of substantive

due process can then be disposed of without further waste

of the Court’s time.

This result the Court reaches by characterizing the

ZBA’s actions as ‘‘quasi-legislative’’, and holding that

the Court must treat the factual basis for the ZBA’s ac-

tion the same as the factual basis for state legislation is

' treated. That is, if it appears that there is any rational

basis for the legislative action the Court’s inquiry into

the adequacy of the factual basis for the legislation ends.

Petitioners assert that the Court is wrong to treat a

ZBA decision like a legislative act because the state of

Texas has said ZBA actions are quasi-judicial. The Court’s

reply is:

That a state may choose to make a legislative de-

cision by a process that resembles adjudication is not

our immediate concern. [footnote omitted]. Our

question is whether anything in the fourteenth amend-

ment requires it do so. We have consistently said

‘‘no’’ to that question and we do so again today.

780 F.2d at 481-482 (App. 15a-16a)

The Court acknowledges that there is a school of

thought that maintains that when a property right is de-

nied, the plaintiff is entitled to have the factual basis for

the board’s action reviewed as rational, vel non, on the

basis of the reasons stated by the board for the action.

While it disagrees with that principle, the Court points

out that the application of it would not bring a different

result in this case.

2. The Opinion For The En Banc Court Is Correct.

Respondents submit that this Court should not dis-

turb the en banc court’s opinion because that opinion prop-

erly states the law.

The principle that federal courts will set aside a zoning

action on a complaint that it takes property without due

process of law, i.e., that it denies the plaintiff substantive

due process, only if the action of the zoning authority

is arbitrary and capricious is well established Euclid v.

Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.

303 (1926); Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555,

50 L.Ed.2d 450 (1977); Larkin v. Grendel’s Den, Inc., 459

U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). That prin-

ciple is not questioned in this case. The only thing that

petitioners question is the manner in which the Court’s

opinion limits the extent to which a federal court may

review the facts to determine whether the body which

took the zoning action acted arbitrarily or capriciously.

One aspect of the Court’s opinion which Petitioners

seem to ignore is that the Court’s opinion makes it clear

the limitation on review resulting from its opinion ap-

plies only when the claim is denial of substantive due

process. The limitation does not apply when there is a

claim that procedural due process has been denied, or that

any other constitutional or federally protected right has

— =

been violated. Near the beginning of its opinion the Court

indicates the limited scope of its opinion by saying that

it applies only ‘‘In the absence of invidious discrimination,

suspect classifying criteria or infringement of fundamental

interest, ...’’, 780 F.2d at 477 (Pet. 5a).

The Court’s opinion also makes it clear that factual

review would not be so stringently limited if the complaint

should be that procedural due process was denied. In

such cases, the opinion says, it would be proper for the

Court to require the zoning board to articulate the basis

for its action so that a court could determine whether the

action taken did in fact have a rational basis.

Respondents submit that this Court should deny cer-

tiorari. The opinion of the Court below does not affect

the basic legal principle. All it does is make available

summary judgment, dismissal on the pleadings and pos-

sibly other procedures for prompt disposal of cases in

which the plaintiffs only real contention is that on the

facts the zoning board should have reached a different

result.

Petitioners’ contention that it is error for the Court

to reach this result by characterizing the action of the

ZBA as quasi-legislative because Texas courts have said

that ZBA’s actions are quasi-judicial, is without merit.

It is true that the opinion from a Court of Civil Appeals

cited by Petitioners, Board of Adjustment of City of San

Antonio v. Willie, 511 S.W.2d 591 (Tex.Civ.App., San An-

tonio, 1974, writ ref’d n.r.e.) describes the ZBA function

as quasi-judicial. However, under the interpretation by

the Texas Supreme Court of the Texas Zoning Statutes,

the extent to which Courts can review the factual basis

for a ZBA’s action is less than that allowed in a judicial

proceeding and close to that described by the Court below

as that given by courts to legislative acts. The Texas Su-

preme Court has ruled that a ZBA’s decision cannot be

set aside by a reviewing Court, even if that Court be-

lieves that the evidence is overwhelming in favor of grant-

ing what the ZBA denied, unless it finds that the ZBA

abused its discretion. City of San Angelo v. Boehme, 144

Tex. 281, 190 S.W.2d 67 (1945). Fairly recently that

Court made a particular point of emphasizing that a state-

ment by a court of civil appeals that review of a ZBA’s

action should be under the substantial evidence rule is

wrong citing Boehme as stating the proper rule. Nu-Way

Emulsions, Inc. v. City of Dalworthington Gardens, 617

S.W.2d 188 (Tex. 1981).

Under Texas law the action of a ZBA is an integral

part of the zoning procedure which permits the granting

of relief from unnecessary hardships without changing

the zoning ordinance. It is not materially different from

the action of a city council when the council changes, or

refuses to change, the zoning classification of a particular

piece of property, which is unquestionably a legislative

action. See e.g. City of Arlington Heights v. Metropoli-

ton Housing Development Corp., supra; Bennett v. City

of Slidell, 697 F.2d 657 (5th Cir. 1983), aff’d in part and

reversed on other points 728 F.2d 762, (en banc 1984),

reh. den’d 735 F.2d 861 (en banc 1984), cert. den’d. 105 S.

Ct. 3249, 87 L.Ed.2d 612.

The essential question is the nature of the decisional

process. Is the decision to be made only on evidence pro-

duced before the body? If so, a review to determine

whether that evidence is adequate may be appropriate. Or

is the decision to be made, as ZBA decisions are. on con-

sideration of information furnished by the parties along

with other information from other sources, including the

general background knowledge of the board members, and

involving evaluation of policy considerations by the board

members? As this Court said in a case involving a zoning

action on a single piece of property (where the claim that

the action was invidiously discriminatory was not estab-

lished) :

In fact, it is because legislators and administrators are

properly concerned with balancing numerous compet-

ing considerations, that courts refrain from reviewing

the merits of their decisions absent a showing of arbi-

trariness or irrationality.

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corn., supra, 429 U.S. at 265, 97 S.Ct. at 563.

In another case arising from denial of a liquor license

in which a provision of the state statute was held to vio-

late the constitutional requirement for separation of church

and state this Court said:

The zoning function ig traditionally a governmental

task requiring the ‘‘balancing [of] numerous compet-

ing considerations,’’ and courts should properly ‘‘re-

frain from reviewing the merits of [such] decisions,

absent a showing of arbitrariness or irrationality.’’

Larkin v. Grendel’s Den, Inc., supra, at 459 U.S. i21, 103

S.Ct. at 509.

Respondents submit that these statements are just as

applicable to the action of a ZBA passing on a request for

a variance as they are to a city council passing on an appli-

cation for spot zoning, and that the Court of Appeals’

opinion making that clear is a proper statement of the law

that should not be disturbed by this Court.

3. There Is No Material Conflict Between The Circuits.

The petitioners assert that the opinion of the Court

of Appeals en banc is in conflict with opinions from seven

other circuits because those circuits ‘‘have held that a sub-

stantive due process claim can be made out based on arbi-

trary and capricious or illegal denial of a land use per-

mit.’? Respondents submit that neither that statement nor

the cases cited in support of it establish the existence of

any material conflict.

The opinion for the Court below clearly recognizes

that if it is established that the action of a ZBA (or any

other zoning authority) which takes property from a claim-

ant is arbitrary or capricious, that claimant has a right of

action for denial of substantive due process. The opinion

for the Court spells out the limit to which the courts may

go in reviewing the facts to determine whether the zon-

ing action was arbitrary or capricious, but that does not

show a conflict. In none of the cases cited by petitioners

is there any discussion of the extent to which the factual

basis for the zoning board’s decision will be reviewed by

the Courts which conflicts with the principle the Court

adopts.

Rogin v. Bensalem Township, 616 F.2d 680 (3rd Cir.

1980), cert. den’d sub nom. Mark-Garner Associates v.

Bensalem Township, 450 U.S. 1029, 101 S.Ct. 1737, 68

L.Ed.2d 223 (1981), affirmed dismissal of the plaintiff’s

action on the pleadings. Scott v. Greenville County, 716

F.2d 1409 (4th Cir. 1983) is not a decision on substantive

due process. It involved a question of whether racial dis-

crimination was a basis for the zoning action. Wilkerson

v. Johnson, 699 F.2d 325 (6th Cir. 1983) is not a land use

case. It deals with denial of a barber’s license. It is not

a substantive due process case. The claim was that the

official who caused the license to be denied had a personal

interest in seeing that that plaintiff was not licensed.

Scudder v. Town of Greendale, 704 F.2d 999 (7th Cir.

1983) is similar to the instant case in that the Seventh

Circuit affirmed a summary judgment against the plain-

tiff. There was no indication that there should be any

further examination of the facts by the district court. The

opinion includes the statement. found in a number of other

eases, ‘‘It is not the function of federal district courts to

serve as zoning appeal boards.’’ Id. at 1003.

In Southern Cooperative Development Fund v. Drig-

gers, 696 F.2d 1347 (11th Cir.), cert. den’d, 463 U.S. 1208

(1983), a substantive due process claim was recognized,

but the point at which the inquiry into the factual basis

for the action would. have ceased under the instant case

was never reached. There was never any showing of a

valid basis for the zoning agency’s action. Shenk v. Zon-

ing Commission, 142 App. D.C. 267, 440 F.2d 295 (D.C. Cir.

1971) affirmed a finding by the district court that denial

of a request for a change of the zoning classification was

arbitrary and capricious. It was, however, in the context

of affirming a mandatory injunction to require the com-

mission to change the zoning classification on evidence that

included a recommendation by the zoning advisory counsel

that such a change be made because eleven similar parcels

had been so rezoned. The following statement from the

court’s opinion, far from indicating a conflict, is substan-

tially the same position as that set forth in the opinion

for the Court below in the instant case:

True, the zoning commission, a quasi-legislative body,

is not required to make findings of fact, and its actions

are entitled io a presumption of validity; but when a

complaint makes a factual showing indicating that

one of its actions is arbitrary, that action cannot be

sustained unless the commission puts forward, or the

court ts otherwise able to discern, some basis in fact

and law to justify the action as consistent with rea-

sonableness. (emphasis added).

440 F.2d at 297-298.

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

1986) did reverse a summary judgment in favor of the city

against the landowner denied a building permit and order

consideration of a claim which was characterized as a claim

for denial of substantive due process. There was con-

sidered as a part of that claim, however, what was ac-

tually a procedural due process claim. That was the asser-

tion that the building permit had been denied because

landowners refused to comply with an illegal demand that

they convey a right of way to the zoning administrator for

the city. There was no discussion of the extent of factual

review to be given.

4. Petitioners Were Not Denied A Property Right.

The opinion for the Court says ‘‘Deprivation by the

state of a protected interest in life, liberty or property is

prerequisite to a claim for denial of due process... . It is

not at all clear that the state has deprived Shelton and

Jones of such a property right.’’ 480 F.2d at 479 (App.

9a)

This, apparently, is a reaction to Respondent’s con-

tention citing Penn Central Transportation Co. v. New

York City, 488 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631

(1978) and Agins v. City of Tiburon, 447 U.S. 225 (1980)

that a variance is not property so that regardless of wheth-

er or not due process was afforded them, Petitioners

would not have a valid claim under 42 U.S.C. § 1983.

The Court of Appeals avoided dealing with that prob-

lem by holding that it was clear that Petitioners were not

denied due process. However, if this Court should grant

certiorari, it would have to deal, on the record in this

case, with the question of whether a variance, or a proce-

dure by which the petitioners could seek one, is ‘‘prop-

erty’’.

5. The Opinion Of The Court Below Shows That It

Reached The Proper Result Even If Its Principal

Reasoning Is Not Endorsed.

Even if this Court should not accept the Court of

Appeals’ rationale that factual review of the basis for

its action is to be limited because the ZBA’s action is quasi-

legislative, the Court’s opinion makes it clear that affirm-

ance of the summary judgment was proper. That is done

by the portion of the opinion showing that review on the

basis of requiring the ZBA to articulate the basis for its

decision would result in affirmance of the District Court’s

action because the records showed that the existence of

serious traffic problems in Northgate was unquestioned,

and the ZBA members who voted against granting Peti-

tioners the variances they sought had a belief based on

reasonable grounds that granting the variances would make

that condition worse.

6. The Court’s Judgment Was Proper And Required

For Reasons Not Discussed In Its Opinion.

A. The Individual Defendants Are Immune From

Personal Liability.

Near the end of its opinion the court states ‘‘Our hold-

ing makes it unnecessary to address defendants’ claim of

immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102

S.Ct. 2727, 73 L.Ed.2d 396 (1982).’’ (780 F.2d at 485; App.

24a.) That refers to the contentions of the individual re-

spon. lents, raised in the district court and strongly urged

on the Court of Appeals in a contention that the summary

judgment for them in their individual capacities should

be affirmed, that petitioner cannot recover against them

individually because there was nothing to indicate that

they did anything other than perform their official duties

in good faith and in a proper manner, They are, there-

fore, entitled to the ‘‘limited or good faith immunity’’ af-

forded to all government employees.

The only contention that any of the individual respon-

dents did not act entirely properly was the contention that

respondent E. Mur! Bailey should have recused himself

because he was a member of a church that was opposed to

the granting of the variance and was personally biased

gainst petitioners. The District Court found, and both the

panel opinion and the opinion for the Court en bance af-

firmed the finding, that there was no basis for the con-

tention that Bailey was biased against petitioners, and

the fact that he was a member of the church which op-

posed the granting of the variances was not a violation of

petitioners’ rights to procedural due process. Conse-

quently, even if this Court should consider that the ra-

tionale of the Court of Appeals for affirming the sum-

mary judgment is not acceptable, the summary judgment

for the individual defendants would have to be affirmed

because they are immune from personal liability for their

good faith actions in their official capacities. Harlow v.

Fitzgerald, supra, Mitchell v. Forsyth, — US. —, 105

S.Ct. 2806, 86 L.Ed.2d 411 (1985). See also K. Pearlman,

SECTION 1983 AND THE LIABILITY OF LOCAL

OFFICIALS FOR LAND USE DECISIONS, 23 Urban

Law Journal 57 (1982).

B. The City Cannot Be Held Liable For Torts Of

The ZBA.

A major contention in the Suggestion for Rehearing

En Bane and in the brief of respondents for the en banc

hearing was that the panel’s opinion was contrary to this

Court’s holdings in Monell v. Department of Social Ser-

vices, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)

and the interpretations of itsin Bennet: v. City of Slidell,

728 F.2d 726 (5th Cir. en banc), reh. den’d, 735 F.2d 861

(5th Cir. en banc 1984) cert. den’d, 105 S.Ct. 3249, 87

L.Ed.2d 612, because the ZBA’s action was not in execu-

tion of a city policy, and the ZBA had no authority to

make policy for the City.

It is submitted that unless this Court departs from

the principle established in Monell, supra, or goes well

beyond the standards for determining who is a_policy-

maker for a city indicated in Pembaur v. City of Cm

cinnati, — U.S. —, 106 S.Ct. 1292 (1986), the court would

have to affirm the summary judgment in favor of the

City. Even if it should somehow find that the ZBA com-

mitted a constitutional tort, the City would not be held

liable for it.

CONCLUSION

The court should deny the application for certiorari.

Respectfully submitted,

Wuuio B. Burier

Counsel of Record

Wooparp, Hart & Primm

4700 Texas Commer:. Tower

Houston, Texas 77002

(713) 221-3800

Catuy Locke

City Attorney

P. O. Box 9960

College Station, Texas 77840

(409) 764-3515

A-1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-81-2044

FRED SHELTON, III, et al.,

Plaintiffs,

vs.

CITY OF COLLEGE STATION, et al.,

Defendants.

JUDGMENT

The Motion for Summary Judgment filed by the De-

fendants in this action came on for hearing before the

Court on October 14, 1983. The Court having considered

the Motions, briefs and factual data submitted in support

of their motion by the Defendants, and the response,

briefs and factual data submitted in opposition by the

Plaintiffs, and the Court having heard the arguments of

counsel and being of the opinion that such motion should

be granted, announced from the bench its findings of fact

and conclusions of law.

And the Court, having considered the Motion of De-

fendants’ subsequently filed that they be allowed a rea-

sonable attorney’s fee to be taxed as costs and paid by

Plaintiffs, is of the- opinion that the applicable legal

standards as set forth in Hughes v. Rowe% 449 U.S. 5

(1980) and eases cited therein have not been met, and

A-2

therefore Defendants are not entitled to recover attor-

ney’s fees.

It is, therefore, ORDERED, ADJUDGED, and DE-

CREED that Defendants’ Motion for Summary Judg-

ment be, and the same hereby is, GRANTED, and that

Plaintiffs take nothing in their action against Defendants.

It is further

ORDERED, ADJUDGED, and DECREED that the

Defendants have and recover from the Plaintiffs their

costs, not to include attorney’s fees.

This is a FINAL JUDGMENT.

Done at Houston, Texas, this 19th day of December,

1983.

/s/ Norman W. Black

UNITED STATES

DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.