Opposition Brief — Benson v. City of Helena

FEB 1 8 1994

In The

Supreme Court of the United States

October Term, 1994

RON BENSON,

Petitioner,

VS.

THE CITY OF HELENA AND

BRANDT SALO, BUILDING DEPARTMENT

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE MONTANA SUPREME COURT

BRIEF IN OPPOSITION

DAVID N. HULL

Attorney for Respondents

P.O. Box 534

Helena, MT 59624

(406) 443-6030

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TABLE OF CONTENTS

Page

Fe Ie Gey PES crsevecnnecenescansctcscvsccvatessdveducceses ii

STATEMENT OF LACK OF JURISDICTION ................... ]

ADDITIONAL CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES NOT REFERRED TO IN BENSON'S

PEEING sarcitnssicunncdesencnciecsencossuncsoeytessdnadsseuedsoserensoveness 2

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IEE dadvscctterensssdinecnsdieeeavebeusicesnucscovebsscnenedtunh 10

ii

TABLE OF AUTHORITIES

Page

Federal Cases

Bateson v. Geisse, 857 F.2d 1300, 1306

CE Cael ee ccncdspecdnidcaticadtic pdeeeesemctiame ree 6

Illinois v. Gates 462 UW 213, 103 S.Ct. 2317,

FO Ee WET GR kccncossdoscedsacsstdassacasaaensacoadnes 1

Montana Cases

Watts v. City of Helena, 151 Mont. 138, 439

cee FUEE CP ceccdtecacesnsccicaudtolesasenee ec enaaenes 8

Montana Supreme Court Internal Operating Rules

SD Fi DO OD civnccecdsccdecensscomtiaanccri ae eens 3

Montana Statutes

Rule 15(b), Montana Rules of Civil Procedure ............... 5

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STATEMENT OF LACK OF JURISDICTION

The Petitioner alleges that federal constitutional issues were

raised in his original pleading by implication. That is simply

not the case. A review of the pleadings show that no federal

constitutional issues were raised. A review of the 100+-year

old cases cited by Petitioner in support of his position make it

clear that federal issues were much more clearly and specifi-

cally raised in those cases. A more recent case that addresses

the issue of the failure of a party to raise a federal issue is

Illinois v. Gates, 462 US 213, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983). In that case, the U.S. Supreme Court reiterated its

position that:

“We held early on that Section 25 of the

Judiciary Act of 1789 furnished us with

no jurisdiction unless a federal question

has been both raised and decided in the

state court below. As Justice Storey

wrote in Crowell v. Randall, 10 Pet. 368,

392 (1836): “If both of these require-

ments do not appear on the record, the

appellate jurisdiction fails.” See also

Qwings v. Norwood's Lessee, 5 Cranch

344 (1809).” Gates, supra, at 218.

The Petitioner then argues that federal constitutional issues

were specifically raised in motions in state District Court. The

Motion for Summary Judgment filed by the Petitioner simply

asks for judgment based upon the pleadings. It is clear from

a review of this document that it raises no federal constitu-

tional issues. Defendants’ Motion for Summary Judgment,

like-wise, raises no federal constitutional issues.

The Petitioner finally claims that federal constitutional issues

were raised again on appeal to the Montana Supreme Court.

The appeal was merely from the District Court's decision. The

only issues addressed at the district court level were the

2

motions for summary judgment, based on Petitioner's request

for declaratory judgment and the Defendants’ Answer and

Counterclaim. The Petitioner seems to mistakenly believe

that if he says the word “constitution” in an oral argument or

puts the words “due process” in brief, that raises federal

constitutional issues. In fact, the motion for summary

judgment is based on the pleadings and the pleadings frame

the issues.

Based on the foregoing, there is no basis for jurisdiction in the

United States Supreme Court that arises from the Petitioner's

actions at the district court level or at the state supreme court

level.

ADDITIONAL CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES NOT REFERRED TO IN BENSON’S

PETITION

MONTANA SUPREME COURT INTERNAL OPERATING RULES,

SECTION 1, PARAGRAPH 3(c):

(c) Ifan appeal presents no constitutional

issues and no issues of first impression,

does not establish new precedent or modify

existing precedent, and would not be of

future guidance for citation purposes to

the citizens of Montana, the bench, or the

bar, the Court may classify that appeal as

one for abbreviated opinion. The decision

for the case will provide the ultimate

disposition without a detailed statement

of facts or law. The decision shall not be

citeable as precedent and shall be pub-

lished by its filing as a public document

with the Clerk of this Court and by a

report of its result to the West Publishing

Company for publication as required by

§ 3-2-603(2), MCA.

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STATEMENT OF THE CASE

The Petitioner, Ron Benson, (hereinafter referred to as

“Benson”), filed a complaint under the “Uniform Declaratory

Judgments Act” set forth in §27-8-101, et seq., Montana Code

Annotated. The complaint was filed on February 26, 1991, for

the purpose of determining the uses allowed for that property

located at 1715 Peosta Street in Helena, Montana. The

complaint alleged that Benson was entitled to use the property

for certain, specific uses.

The Respondents, the City of Helena and Brandt Salo, the City

of Helena’s Director of Building and Safety (hereinafter re-

ferred to as “City”), filed an answer denying Benson's claimed

uses and asked that the district court determine that the

business uses of the property be permanently enjoined.

Each party filed a motion for summary judgment and the

district court entered its judgment and opinion on March 17,

1993. In that opinion, the district court determined that the

previous owners of the property had abandoned the non-

conforming prior use of the property (as a bus barn) in 1974.

The court further determined that since the non-conforming

prior use was abandoned it terminated one (1) year after the

date of abandonment. As the district court stated:

“No facts have been presented to this

court which would show anything but

that the nonconforming use was aban-

doned.” Petitioner’s Appendix A at page

A-6.

This decision was appealed to the Montana Supreme Court on

April 29, 1993, and was submitted on briefs. The sole issue

raised was the appeal from the decision of the district court.

The Montana Supreme Court rendered a decision on October

20, 1993, which affirmed the district court decision. Further,

the Montana Supreme Court found that the case raised no

constitutional issues and should not be cited as precedent

under its Internal Operating Rule 1, paragraph 3(c).

The real facts of this case are that Benson asked the district

court to determine the extent and type of uses allowed on his

property. The district court did that and the Montana

Supreme Court affirmed that determination.

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ARGUMENT

THE FIFTH AMENDMENT OF THE UNITED STATES CON-

STITUTION AND ARTICLE I, SECTION 3 AND ARTICLE I,

SECTION 29 OF THE CONSTITUTION OF THE STATE OF

MONTANA DO NOT REQUIRE COMPENSATION FOR THE

ALLEGED TAKING OF RON BENSON'S PROPERTY.

Benson incorrectly states in the Argument portion of his

Petition that the Fifth Amendment of the United States

Constituion and Article I, Section 3 and Article II, Section 29

of the Constitution of the State of Montana require compen-

sation for the taking of Ron Benson's property. He states:

“The pleadings were broadened in Ron

Benson's Motion for Summary Judgment

to emphasize the taking issue, the re-

quired damages, and punitive damages.”

(Emphasis added) Benson's Petition for

Writ of Certiorari, page 12.

The facts and the motions themselves show that the pleadings

were not broadened. The fact that Benson may have raised

issues in his brief in support of his Motion for Summary

Judgment does not change the pleadings. |

Benson goes on to state:

“The District Court declined to address

the issues raised in Ron Benson's Motion

for Summary Judgment, stating they were

not in the original request for Declaratory

Judgment.” Benson's Petition for Writ of

Certiorari, page 12.

That is not true. The district court did address the issues

raised in Benson's Motion for Summary Judgment. It did

not address the various arguments that were not relevant

to his motion that were included in Benson's brief in sup-

port of his Motion for Summary Judgment.

Benson states in his Petition that his inclusions by implication

and amendment are in accord with Rule 15(b) of the Montana

Rules of Civil Procedure. That, too, is incorrect. Rule 15(b)

simply states that amendments to pleadings must conform to

the evidence and issues upon which there has been a trial.

What Rule 15(b) says, in pertinent part, is:

“When issues not raised by the pleadings

are tried by express or implied consent of

the parties,.... ” (emphasis added)

Benson then goes on to argue the “taking issue”, even though

this was not raised in the district court pleadings nor was it

addressed by the Montana Supreme Court. Benson fails to

accept the fact that there is a vast difference between a

landowner abandoning a non-conforming use as the district

court determined Benson did, and a “taking” of property as

happened in First Lutheran Church v. Los Angeles County, 482

U.S. 304, 107b S. Ct. 2378, 96 L.Ed.2d 250 (1986), as well as

Lucas v. South Carolina Coastal Council,505U.S.___—«, 1112S.

Ct. 2886, 120 L.Ed.2d 798, 60 U.S.L.W. 4843 (1992).

Benson continually argues here that there has been a “taking”

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or that his property has been made valueless, despite the fact

that those issues were never framed, pled or raised at the

district court level, nor has any evidence ever been presented

to support his position.

The case of Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir.

1988), as cited by Benson, clearly supports the City’s position.

“To state a procedural due process claim,

Bateson must establish that he had a pro-

tectible property interest in his proposed

minor plat application and, if so, that he

was denied this property right without

the process which was due under the

circumstances.” Bateson, supra, at 1305.

Obviously, there was procedural due process in the case at

hand because Benson had the opportunity to present what-

ever issues he wanted to the district court when he filed his

motion for declaratory judgment. The district court ruled on

the pleadings as they were framed by the parties.

Further, Bateson makes it clear that there is no inverse

condemnation claim. The 9th Circuit agreed that if there was

a provision under Montana law for a claim under inverse

condemnation then Bateson had to raise that claim under that

provision.

“Thus, Bateson appears to have an ad-

equate state compensation remedy which

he must pursue before he can state a

taking claim. “Until the state courts

establish that [Bateson] may not obtain

just compensation through an inverse

condemnation action under any circum-

stances, [Montana] procedures are ad-

equate within the terms of Williamson

County and [Bateson’s] failure to use them

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cannot be excused.” Austin v. City and

County of Honolulu, 840 F.2d 678, 681

(9th Cir. 1988).” Bateson, supra, at 1306.

Based on the foregoing, it is clear that there has been no

violation of the Constitution of the State of Montana and no

violation of the Constitution of the United States because

there was no taking. Neither the District Court nor the

Montana Supreme Court was presented with or addressed

Benson's claims regarding a taking.

RON BENSON WAS TREATED IN A MANNER EQUAL TO ALL

OTHERS WITH REGARD TO HIS RIGHTS TO HIS PROP-

ERTY IN ACCORD WITH THE FOURTEENTH AMENDMENT

OF THE CONSTITUTION OF THE UNITED STATES AND

THE CONSTITUTION OF THE STATE OF MONTANA.

In addition to his Fifth Amendment argument, Benson has

now raised a Fourteenth Amendment claim. He appears to

base his equal protection argument on the fact that the

Montana Supreme Court, under its internal operating rules,

indicated that this case should not be used as precedent.

The fact that the Montana Supreme Court does not consider

this case of any precedential value merely means that the case

is 100% fact-driven; it does not mean that Benson has been

singled out in any fashion. Benson cited no case where, under

the same fact situation, he was treated any differently than

anyone else. His reference to American Sugan Refining Co. v.

Louisiana, 179 U.S. 89, 45 L.Ed. 102, 21 S.Ct. 43 (1900), is

inappropriate because in that case the court said that the

Fourteenth Amendment allegation as set forth in the pleading

in the lower court at least raised the issue and, together with

the facts, made the petitioner's claim at least plausible on its

face. In the case at hand, there was no issue of a Fourteenth

Amendment claim raised by Benson anywhere in his plead-

ings and the fact situation clearly shows that his argument is

totally implausible.

‘8

RON BENSON RECEIVED DUE PROCESS IN ACCORDANCE

WITH THE CONSTITUTION OF THE UNITED STATES AND

THE CONSTITUTION OF THE STATE OF MONTANA.

Benson takes the position that he is entitled to due process

before the City takes his property. As has been previously

stated, there was no “taking” of Benson's property, there was

merely a judicial determination of the abandonment of a non-

conforming use.

Most important, there certainly was due process. Benson had

an opportunity to present any argument he wanted to present

to the district court. In fact, he filed the initial pleadings to

present this matter to the district court. It is ludicrous for

Benson to later argue that he was not accorded due process

when he was the one who initiated the procedure to get a

judicial determination.

Benson's argument that Watts v. City of Helena, 151 Mont.

138, 439 P.2d 767 (1968) in any way supports his position is

in error. The facts in the Watts case involved the extension or

expansion of a non-conforming use. In that case, the Montana

Supreme Court indicated there was no requirement for an

appeal of the ruling made by the Board of Adjustment because

there was no requirement to go before the Board of Adjustment

in the first place. The landowners were allowed by the

ordinance in place at the time to expand the non-conforming

use to the entire property. The Montana Supreme Court goes

on to cite a California case in that regard. It was not the

Montana Supreme Court that made the statement as alleged

by Benson in his petition; it was a quote from a California case

that was incorporated in the Montana Supreme Court deci-

sion. That is clearly not the same thing. The correct Montana

Supreme Court quote was:

“No vested right is affected by either the

denial * * * or the grant * * * of a zoning

ordinance.’ Flagstad v. City of San Mateo,

156 Cal.Ap.2d 138,318 P.2d 825 (1957).”

Watts, supra, at 769.

It is important to note that Benson's misquote in his Petition

is areference to another case in another state on another issue

based upon an ordinance different than the ordinance in the

case at hand. There is no granting of or denial of a zoning

variance by the Board of Adjustment in this case nor was one

ever requested. The citation misquoted by Benson regards an

entirely different issue and is meaningless here.

Finally, Benson states on page 20 of his Petition:

“... In all of the record, the City of Helena

never alleged or offered any proof that the

non-conforming use ceased for more than

one year. Not is it contained in the

District Court findings of fact or conclu-

sions of law. Nor has this issue ever been

heard.”

That position is absurd. What the district court stated was:

“The property ceased being used as a bus

barn in 1974. Thus, under the Helena

zoning ordinances and its discontinu-

ance-time limitation, the exempted use

terminated after a year of not having been

exercised.” Memorandum and Order

dated March 17, 1993, Lewis and Clark

County, Montana First Judicial District

Court. Petitioner's Appendix A at A-5.

The district court determined, based on the affidavits and

pleadings presented by the parties, that there was an aban-

donment of the exempted usage. The Montana Supreme

Court agreed with that position.

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CONCLUSION

In summary, this Court should not grant a writ of certiorari in

this case for several reasons. First and foremost, this Court

has no jurisdiction. Federal constitutional issues were not

raised or addressed in the courts below. Second, this case is

of absolutely no importance to anyone except the parties

involved. Even the Montana Supreme Court recognized that

this case is so uniquely fact-oriented that it has no precedential

value. Third, Benson's arguments, misquotes and misstate-

ments of the facts below make it clear that there are no issues

of due process because Benson had every opportunity to be

heard at the district court level on any issue he chose to

properly raise. Fourth, there are no issues of violation of Fifth

Amendment rights entitling Benson to compensation because

he failed to raise those issues at all and he failed to plead an

inverse condemnation claim. Fifth, there is no Fourteenth

Amendment violation because there isn't even an argument

that Benson was treated differently than anyone else under

the facts and circumstances presented.

There was no “taking” by the City. There was an abandonment

of a non-conforming use by Benson. There is no violation of

due process. Benson instituted a district court action wherein

he had the opportunity to raise any issues he wanted to raise.

The petition should be dismissed.

Respectfully submitted this 17th day of February, 1994

David N. Hull

Attorney tor Respondents

P.O. Box 534

Helena, MT 59624

(406) 443-6030