Opposition Brief — Hudson v. Metropolitan Government of Nashville & Davidson County

O

No. 04-405

IN THE

Supreme Court of the United States

MARGARET HUDSON,

Petitioner,

v.

METROPOLITAN GOVERNMENT OF NASHVILLE, et al.,

Respondents.

On PETITION FOP A WRIT OF CERTIORARI

TO THE SUPREME COURT Gi © ENNESSEE, MIDDLE DIvisION

BRIEF IN OPPOSITION

Kar F. DEAN

Director of Law

Joun L. KENNEDY*

Metropolitan Attorney

MarGareT O. Darsy

Metropolitan Attorney

DEPARTMENT OF LAW OF THE

METROPOLITAN GOVERNMENT OF

NASHVILLE AND Davipson COUNTY

204 Metropolitan Courthouse

Nashville, Tennessee 37201

(615) 862-6341

* Counsel of Record Counsel for Respondents

191080 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Page

Peeee OF Ge FINO Fin ctv c de ec is ee eeder li

Statement of Tennessee Proceedings ............ 1

Of ipa wewew vali wea eee 5

Reasons for Denying the Petition ............... 6

A. Petitioner was not Denied Procedural Due

Process of Law under the Fourteenth

EN SG ee eed eKe Wh Kees Cen eTes 6

B. The Rule of Repose Invoked by the Tennessee

Court of Appeals does not implicate the

ee ee ee ere 13

C. Petitioner had Adequate Post Deprivation

Remedies under Tennessee Law. ......... 17

cS a ig hee awiaie aid 19

il

TABLE OF CITED AUTHORITIES

Page

Cases ”

Adams v. Woods, 2 Cranch 336 (1805) ........... 14

Bi-Metallic Inv. Co. v. State Board of Equalization,

239 U.S. 441 (9916). ook ccsvea ve wepe cree 5, 8, 11

Brody v. City of Mason, 250 F.3d 432 (6" Cir. 2001)

WPPTTPTTTTTT Ce 8,9

Carter v. City of Salina, 773 F.2d 251 (10" Cir.

1965S) ....ccccecnc@aeue eee eee 15

Cipollone v. Liggett Group, 505 U.S. 504 (1992)... s.:13

City of Eastlake v. Forest City Enterprises, 426 U.S.

668 (1976) ... ..cicencsneseue eee eee 9, 13

Davis v. Metropolitan Gov't, 620 S.W.2d 532

(Tenn. Ct. Ape. 1961) ...ccevsienaescceeiy es 18

Engle v. Isaac, 456 U.S. 107 (1982) ............ 8

Federal Deposit Ins. Corp. v. City of New Iberia,

921 F.2d 610 (S* Cis. 1992) 2. civccdeaneeues 12

Goodman v. Lukens Steel Company, et al., 482 U.S.

656 (1987) ....cccevscuss backs bee keene 15

Halverson v. Skagit County, 42 F.3d. 1257 (9™ Cir.

1995) ...cccsacseees eee ome meee 10

—_—

lil

Cited Authorities

Page

Harris v. County of Riverside, 904 F.2d. 497 (9" Cir.

SEE ee eres Ped Se ee se ee eee 9, 10

Hoover, Inc. v. Metro Bd. of Zoning Appeals,

924 S.W.2d 900 (Tenn. Ct. App. 1996) ........ 17

Hotel & Motel Association of Oakland v. City of

Oakland, 344 F.3d 959 (9" Cir. 2003) ......... 10

Hudson v. Palmer, 468 U.S. 517 (1984) ......... 6,17

Indiana Land Company, LLC v. City of Greenwood,

SU PET OEM BOD oc cc cee rersevnss 9

Johnson v. Railway Express Agency, Inc., 421 U.S.

GS a ck bhias ha 004 kbée de eneetee 14

LaSalle National Bank v. City of Evanston,

po | ye 2) Ae, 16

Levine V. Torvik, 986 F.2d 1506 (6" Cir. 1993),

cert. denied, 509 U.S. 907 (1993) ............ 8

Logan v. Zimmerman Brush Co., 455 U.S. 422

SE Dee aoe wii th Ose vba Cees ve 17

Londoner v. Denver, 210 U.S. 373 (1908) ....5, 8, 10, 11

Mennonite Board of Missions v. Adams, 462 U.S. 791

ee edu decck be inewnisadise? 11,12

iv

Cited Authorities

Page

Mullane v. Central Havover Bank & Trust Co.,

Bet Ses RAE 9 bo. 2 os Sie eeanbech cians 11

Pacific Gas & Elect. Co. v. State Energy Resources

Conservator & Development Comm’n., 461 U.S.

CE ck Vice Nh waeunteNse cece saveeekews 13

Pro Eco, Inc. v. Bd. of Commissioners of Jay County,

Indiana, 57 F.3d 505 (7" Cir. 1995) .......... 9

Purisch v. Tennessee Tech. Univ., 76 F. 3d 1414

Gr ae to eS sc Peres SC RRAW oe 8

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

CONTE Ss ka 0iceds SER RRR arent 13

Smith v. City of MaComb, 352 N.E.2d 697 (Ill. Ct.

PN TE RASC CES CAR ARTS en 16

Thatcher Enterprises v. Cache County Corporation,

et al., 902 F.2d 1472 (10" Cir. 1990) .......... 15, 16

Willamette Industries, Inc. v. Tennessee Assessment

Appeals Commission, 11 S.W.3d 142 (Tenn. Ct.

Oe Pry re rere ore re 18

Wilson v. Garcia, 471 U.S. 261 (1985) ........ 6, 14, 15

Wimley v. Rudolph, 931 S.W.2d 513 (Tenn. 1996) ... 18

Vv

Cited Authorities

Page

Zinerman v. Burch, 494 U.S. 113 (1990) ......... 17

Zipperer v. City of Fort Myers, 41 F.3d 619 (11 Cir.

1995), cert denied, 516 U.S. 807 (1995) ....... 11-12

United States Constitution

Fourteenth Amendment .................. 5, 6, 7, 8, 19

Statutes

ek Rom G. | Peer err rerer yr rT rrr fy ote 14

gis Pe 2. errr re reyes br 5, 6, 14, 16

yom Gk! | MeeeerrerEreT Teo 7

TCA. § 27D 161, ONG. nck etic wsnsscesses 17

TECK: SDE 5 6k IS OSE

Other Authorities

kere by? yi Pererrerrrrerrrrc, crise

l

STATEMENT OF TENNESSEE PROCEEDINGS!

This action arose out of Petitioner’s installation of vinyl!

siding on an investment property that she owned within a

historic preservation district. The guidelines for the historic

preservation district prohibit the installation of vinyl siding

onto the houses within that historic district. Petitioner

acknowledges that her investment property is located within

the district and that she violated the zoning overlay by

installing vinyl siding.

Petitioner’s house is located at 2208 White Avenue

Nashville, Tennessee, within the Woodland in Waverly

Historic Zoning District (hereinafter the “Historic District”).

(R. 183). It is an investment property for her. (R. 80-1).

The Metropolitan Council adopted the Historic District

in 1985 (hereinafter the “1985 Ordinance”).

The following measures were taken to notify and hear

the public before the Woodland in Waverly Historic District

and guidelines were adopted:

* May 1983 Metropolitan Historical Commission

Director Shain Dennison spoke at a public meeting

in the neighborhood.

1. Petitioner Margaret Hudson will be referred to as “Petitioner.”

The Metropolitan Government of Nashville and Davidson County

will be referred to as the “Metropolitan Government.” The Tennessee

Court of Appeals will be referred to as the “Tennessee Court of

Appeals” or “Court of Appeals.” The Petition for a Writ of Certiorari

will be referred to as the “Petition.” Citations to the Record will be

made in one of two ways. Those items that are included as appendices

to the Petition will be referred as (Petition, Appendix _, __).

Citations to items not so included in the Petition, will be made to the

Record on file with the Clerk of the Tennessee Supreme Court and

designated as(R. _ ).

2

* May 1983, the Metropolitan Historic Zoning

Commission (MHZC) mailed an information packet

on historic zoning to all residents and owners in

proposed district, including draft guidelines,

explanation of historic zoning, etc., asking for input.

The mailing announced a June 13, 1985 public

hearing on the proposed zoning.

¢ On June 13, 1985 a public hearing was held to

discuss the proposed historic district.

¢ The recommendation of the MHZC that the

neighborhood be designated a historic district took

place in a public meeting of the MHZC on June 27,

1985.

¢ On August 14, 1995, the Metropolitan Planning

Commission approved the designation.

* The Metropolitan Council held a duly advertised

public hearing on the historic designation of the

Woodland in Waverly district on November 5, 1985.

¢ The guidelines for the district were adopted in a

public meeting of the MH7C on November 25,

1985.

¢ Public notice of the district ran in the local daily

newspaper, “The Tennessean,” on November 27,

1985.

(R. 128-130).

3

In addition, notices that the neighborhood had been

designated a historic preservation district were distributed

by the Woodland in Waverly Neighborhood Association in

December 1985, after the district was adopted. (R.129).

These notices described the procedure for how to apply for a

certificate of appropriateness before changing the exterior

of a house in this neighborhood. (R. 129).

The Mayor signed the ordinance on November 25, 1985,

and pursuant to its terms, it took effect five days later on

November 30, 1985. (Supp. R. 3, 11).

The Historic District has specific design guidelines

relating to modifications of historic structures in the overlay

district. (R. 183-4). Sections II.B(6)(c)(1) and (4) prohibit

the installation of vinyl siding on structures within the

district. (Petition, Appendix D, 20a).

Petitioner failed to obtain a certificate of appropriateness

prior to modifying the exterior of the house by installing vinyl

siding in 1996. (R. 84, 183).

After the siding was installed, Petitioner applied to the

staff of the MHZC for a certificate of appropriateness.

The staff denied the application. (R. 183). Petitioner then

appealed the staff’s decision to the MHZC. The MHZC

denied the appeal on April 16, 1997. (R. 184). Petitioner did

not appeal the denial of the MHZC. (Petition, Appendix D,

21a).

Petitioner has not removed the vinyl siding, even though

a certificate of appropriateness was never granted. (R. 184).

4

The Metropolitan Government filed suit to enforce the

design guidelines on February 10, 1998. (R. 1-4). Petitioner

did not attack the alleged procedural irregularities in the

adoption of this Historic District until she filed her Answer

in 2000, 15 years after adoption of the overlay. (R. 52-54).

The Metropolitan Government filed a Motion for

Summary Judgment on June 19, 2002. (R. 60-62). The Trial

Court granted summary judgment on November 7, 2002.

(Petition, Appendix C, 15a-16a).

Petitioner appealed the grant of summary judgment on

November 14, 2002. (R. 217-218). The Court of

Appeals ruled, in a per curiam opinion, in favor of the

Metropolitan Government on December 30, 2003. (Petition,

Appendix B, 2a).

The Court of Appeals determined that even if there was

insufficient notice to Petitioner of the adoption of the historic

preservation overlay, Petitioner’s decision to wait 15 years

to challenge the adoption immunized it from a procedural

attack. (Petition, Appendix B, 9a-10a).

The Tennessee Supreme Court denied Petitioner’s

Application for Permission to Appeal from the decision of

the Court of Appeals. (Petition, Appendix A, 1a).

5

SUMMARY OF ARGUMENT

The Metropolitan Government did not deny Petitioner

procedural due process of law under the Fourteenth

Amendment for the following reasons:

Petitioner’s case falls within the framework of the

Bi-Metallic analysis and not the Londoner rule.

In passing the 1985 Ordinance, the Metropolitan

Government acted in a legislative manner to

increase the size of the Historic District by

72 properties, bringing its size toe 157 parcels.

Petitioner was not singled out in any fashion.

The 1985 Ordinance was not directed at a few

individuals.

Petitioner was not exceptionally affected by the

1985 Ordinance. She was not threatened with the

imminent loss of the property or of her rights to the

property. Her continued use of the property was not

changed by the 1985 Ordinance.

Therefore, Petitioner did suffer a deprivation cognizable

under the Due Process Clause.

The Tennessee rule of repose applicable to challenges to

zoning ordinances on procedural grounds as applied by the

decision of the Tennessee Court of Appeals does not violate

the Supremacy Clause of the United States Constitution.

In enacting the statute that became 42 U.S.C. § 1983,

Congress omitted any language of limitation or repose.

Therefore, the ruling of the Tennessee Court of Appeals is

6

not contrary to any provision of 42 U.S.C. § 1983. Moreover,

the use of a reasonable state statue of limitation or rule of

repose to limit a cause of action brought under 42 U.S.C.

§ 1983 is fully consistent with federal policy. Wilson v.

Garcia, 471 U.S. 261, 271 (1985).

The violations of state laws requiring notice over and

above the publication of the 1985 Ordinance as found by the

- decision of the Tennessee Court of Appeals were random and

unauthorized acts so a pre-termination hearing was

impractical. As such, they were not acts that deprived

Petitioner of any right under procedural due process so long

as Tennessee law provides an adequate post termination

remedy. Hudson v. Palmer, 468 U.S. 517, 532-33 (1984).

Tennessee law provided such remedies in the form of the

right to appeal from the denial of the variance by the Historic

Zoning Commission and by inverse condemnation if

Petitioner wished to claim a regulatory taking of her property.

REASONS FOR DENYING THE PETITION

A. Petitioner was not Denied Procedural Due Process of

Law under the Fourteenth Amendment.

Petitioner asserts a procedural due process claim under

the Fourteenth Amendment due to procedural flaws in the

adoption of the 1985 Ordinance. Petitioner bases her claim

on the Metropolitan Government’s failure to provide her with

individual notice of a public hearing held prior to the

Metropolitan Council’s adoption of the 1985 Ordinance and

on the failure to publicize the guidelines prior to its

consideration by the Metropolitan Council. For purposes of

summary judgment only, the Metropolitan Government

conceded the issue of individual notice even though there is

7

still a contested issue of fact as to whether Petitioner or her

late husband signed a petition in favor of the expansion of

the Historic District. (Petition, Appendix D, 20a).

The Tennessee Court of Appeals found that the

Metropolitan Government failed in two respects to provide

Petitioner with the individual notice required by M.C.L.

§ 17.40.710 prior to the adoption of the 1985 Ordinance.

(Petition, Appendix B, 9a). First, the Metropolitan

Government mailed the notice of the hearing on the

guidelines to the address of Petitioner’s property in the

proposed expanded Historic District, but not to her actual

residence that was outside that district. The Tennessee Court

of Appeals found that the address of Petitioner’s residence

was available to the Metropolitan Government in its property

tax records. (/d.). The second failure noted by the Tennessee

Court of Appeals was that the Metropolitan Government did

not mail the notice of the hearing in a timely fashion so that

it would arrive 21 days prior to the date of the public hearing,

as also required by M.C.L. § 17.40.710. (/d.). Therefore, the

Tennessee Court of Appeals found that the Metropolitan

Government violated the notice requirements established by

local ordinance and, by implication, the requirement for

reasonable notice imposed by T.C.A. § 13-7-406. (Petition,

Appendix B, 8a-9a). The Tennessee Court of Appeals noted

Petitioner’s claim regarding the tardy publication of the

guidelines, but made no finding other than to assume it was

true for the sake of argument. (Petition, Appendix B, 10a).

There was no contested issue regarding the adequacy of the

notice to the public at large prior to the adoption of the 1985

Ordinance. Likewise, the Tennessee Court of Appeals made

no findings regarding the Due Process Clause of the

Fourteenth Amendment, so the only violations it found were

restricted to Tennessee law.

8

By this time it is well settled that a violation of a state

procedural regulation or statute by itself does not necessarily

constitute a violation of the guarantee of procedural due

process conveyed by the Fourteenth Amendment. Engle v.

Isaac, 456 U.S. 107, 119-121 (1982). Otherwise, a state

would fall under a federal due process obligation to follow

all of its procedures thus creating an unmanageable situation

for the federal courts. Purisch v. Tennessee Tech. Univ.,

76 F. 3d 1414, 1423 (6" Cir. 1995), quoting Levine V. Torvik,

986 F.2d 1506, 1515 (6" Cir. 1993), cert. denied, 509 U.S.

907 (1993). This principle of law applies equally to matters

involving real property rights. Brody v. City of Mason, 250

F.3d 432, 438 (6" Cir. 2001). Therefore, Petitioner has to

demonstrate that the violations of which she complains rise

to a level that implicates the Fourteenth Amendment in

addition to Tennessee law.

There is no dispute that the issues of proper notification

to Petitioner arose in the context of legislation that increased

the size of the existing Historic District by 72 properties to

reach a total of 157 properties in all. Generally speaking, the

procedural arm of the Due Process Clause of the Fourteenth

amendment does not apply to adoption of a statute that affects

more than a “few people.” Bi-Metallic Inv. Co. v. State Board

of Equalization, 239 U.S. 441, 445 (1914). An exception to

this general principal arises when an ordinance places an

exceptional burden on a relatively small number of people.

Londoner v. Denver, 210 U.S. 373, 385 (1908). Neither of

these decisions offered a precise definition of the terms

“few people” or relatively small number of people so that

task has been left to courts in succeeding cases. Speaking

for the Seventh Circuit, Judge Posner has described the more

recent analytical framework in zoning cases to the effect that

due process does not apply “when zoning decisions are

9

confined to a legislative body rather than a judicial body.”

Indiana Land Company, LLC y. City of Greenwood, 378 F.3d

705, 710 (7 Cir. 2004). The rationale being that legislative

action is generally broader in scope than a proceeding that is

targeted on a specific individual. (/d.). In an earlier decision,

the Seventh Circuit applied the legislative-judicial analysis

to affirm dismissal in a case where the legislative bill was

prophylactic in nature and arguably aimed at preventing

single proposed development and in the face of a claim of

state law violation. Pro Eco, Inc. v. Bd. of Commissioners of

Jay County, Indiana, 57 F.3d 505, 513 (7" Cir. 1995).

In both of these cases, the Seventh Circuit relied on the

analysis in City of Eastlake v. Forest City Enterprises, 426

U.S. 668, 672-677 (1976). In Eastlake, the Court considered

an unusual situation in which the grant of a zoning variance

to a single entity was subject to approval by the town’s

citizens by referendum and found that even though the

referendum disapproved the variance, the Due Process Clause

was not implicated. The Sixth Circuit follows a similar

analytical process. Brody v. City of Mason, Id. 250 F.3d

437-38.

In an effort to meet the “small number of people” prong

of the Londoner analysis, Petitioner cites the decision from

the Ninth Circuit Court of Appeals that applied due process

requirements to zoning legislation. Harris v. County of

Riverside, 904 F.2d. 497, 501-502 (9" Cir. 1990). However,

the facts in Harris were quite unique. The challenged

legislation was actually an amendment to a pending zoning

ordinance that affected plaintiff and one other landowner who

actually requested the amendment. (/d.). Further, the

amendment effectively eliminated the commercial use that

plaintiff made of his land. (/d.). It was no surprise then that

the Court found that the amendment to the zoning ordinance

10

singled out the plaintiff and exceptionally affected his

property interest on an individual basis. (/d.). Therefore, the

Court found that although the original version of the

ordinance was duly published, there was virtually no notice

of the amendment, much less the individual, actual notice

that the Court believed was required by the Due Process

Clause under the Londoner analysis. Harris v. County of

Riverside, 904 F.2d 503-504. Needless to say, the undisputed

facts in the instant case are far different than those in Harris.

Although Petitioner complains of the timing of the adoption

of the administrative guidelines, there is no dispute that the

Metropolitan Government published the 1985 Ordinance.

Moreover, Petitioner’s property was one of 72 parcels added

to the Historic District, so she was not specifically targeted.

More recent decisions from the Ninth Circuit show that

its reasoning process is close to that employed by the Seventh

and Sixth Circuits. In Halverson v. Skagit County, 42 F.3d

1257, 1258, 1260-61 (9" Cir. 1995), the facts are more

analogous to the instant case in that ninety residents sued

the county claiming that its system of levees and dikes caused

increased flooding to their homes. One of their causes of

action was that the county violated the procedural arm of the

Due Process Clause by failing to provide them individual

notice of the legislative acts that established the system of

levee’s and dikes. (/Jd.). The Court upheld a summary

judgment dismissing that claim stating that the character of

the county’s action was legislative in nature in that it involved

land use covering a sizable area and was not targeted to one

or a few individuals. (/d.) Thus, it did not give rise to due

process considerations. (/d.). See also Hotel & Motel

Association of Oakland v. City of Oakland, 344 F.3d 959,

968-70 (9 Cir. 2003). Therefore, the Ninth Circuit’s

analytical framework for determining whether to analyze a

11

case under the Bi-Metallic or Londoner rulings is not

markedly different from that used by the Sixth and Seventh

Circuits.

In order to meet the “exceptionally affected” prong of

Londoner, Petitioner relies on a line of cases beginning with

Mullane v. Central Havover Bank & Trust Co. , 339 U.S. 306,

314 (1950), and culminating with Mennonite Board of

Missions v. Adams, 462 U.S. 791, 797-799 (1983). However,

a careful reading of those cases demonstrates that they do

not apply to her situation or support her argument. As the

Court explained in Mennonite, a common thread in the

precedents that it examined is that the owners of the property

interests were faced with an immediate and drastic effect to

their property due to the initiation of a specific proceeding.

Mennonite Board of Missions v. Adams, 462 U.S. 795-798.

Whether it be by court action to settle a trust account,

initiation of condemnation actions, or as in Mennonite itself,

a sale of property for back taxes that directly threatened the

mortgagee’s interest, the process potentially eliminated the

property interests of the various plaintiffs. (/d.). Therefore,

the Court determined that notice in rem was an insufficient

guarantee of due process as not reasonably calculated to

apprise the owner of the property interest of its peril,

particularly in view of the fact that the addresses of the

plaintiff in each case was reasonably available in public

documents. Mennonite Board of Missions v. Adams, 462 U.S.

798-99.

The impact of that common thread of immediate and

drastic impact was demonstrated in a decision by the Eleventh

Circuit that also addressed the interests of a mortgagee who

was apparently also the property owner. Zipperer v. City of

Fort Myers, 41 F.3d 619, 623-24 (11" Cir. 1995), certiorari

12

denied, 516 U.S. 807 (1995). The municipal action in

Zipperer consisted of a special assessment for property

improvements that resulted in a tax lien that subordinated

the mortgagee’s lien. (/Jd.). After closely examining

Mennonite, the Court reasoned that, although the plaintiff

had a constitutionally protected property right, due process

did not require actual notice because the plaintiff did not

face an immediate and drastic threat to his property interest.

(Id.). Instead, as the landowner, he retained his significant

ownership interest as well as the reduced priority of his lien,

albeit at a higher cost. (/d.). In reaching its decision, the Court

relied on a similar analysis in a case from the Fifth Circuit,

Federal Deposit Ins. Corp. v. City of New Iberia, 921 F.2d

610, 614 (5" Cir. 1991). (/d.). Likewise, Petitioner in the

instant case may face higher costs to maintain her property

as aresult of the 1985 Ordinance, but she cannot demonstrate

that she was thereby subject to an immediate and drastic effect

such as the complete loss of her property interest. Just as the

plaintiff in Zipperer, she retained the ownership of her

property upon the enactment of the 1985 Ordinance.

Therefore, Petitioner cannot satisfy the “exceptional burden”

requirement of the Londoner rule. Moreover, the ruling in

Mennonite Board of Missions v. Adams does not require

actual notice to Petitioner in order to satisfy the procedural

arm of the Due Process Clause. The publication of the

pendent 1985 Ordinance that the Metropolitan Government

unquestionably provided was sufficient.

Throughout her arguments on due process, Petitioner

appears to assume that the Due Process Clause applies to

her due solely to her ownership of her property. However, as

the Court clearly stated in Mennonite, it is the degree of threat

to that ownership interest that triggers the protection of the

procedural branch of the Due Process Clause. Simply put,

13

Petitioner has not suffered a deprivation of her property

interest sufficient to invoke the Due Process Clause.

Petitioner attempts to demonstrate such a deprivation by

inferring that historic zoning districts impose such restrictions

that they border on confiscatory measures. Suffice it to say

that Petitioner has not presented facts to show that the 1985

Ordinance even approaches that level of restrictions.

This Court has long recognized that all zoning interfere with

an owner’s use of property, but that alone is insufficient to

invalidate a zoning ordinance. City of Eastlake v. Forest City

Enterprises, 426 U.S. 668, 673, n.8 (1976).

B. The Rule of Repose Invoked by the Tennessee Court of

Appeals does not implicate the Supremacy Clause.

The Metropolitan Government, of course, does not

dispute Petitioner’s claim that the United States Constitution

is the law of the land and through the Supremacy Clause,

prevails over contrary state law. However, the decision of

the Tennessee Court of Appeals did not fly in the face of the

Supremacy Clause.

This Court has stated that its analysis of the application

of the Supremacy Clause, “start[s] with the assumption that

the historic police powers of the states [are] not to be

superceded by. . . Federal Act unless that [is] the clear and

manifest purpose of Congress.” Cipollone v. Liggett Group,

505 U.S. 504, 516 (1992), quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947). Unless Congress explicitly

States its intent to pre-empt all state laws on a particular

subject, state law is only pre-empted to the extent it actually

conflicts with federal law. Pacific Gas & Elect. Co. v. State

Energy Resources Conservator & Development Comm ‘n.,

461 U.S. 190, 204 (1983).

14

Petitioner poses her argument as if any state action to

limit a claim brought under 42 U.S.C. § 1983 for violation

of procedural due process frustrates the Congressional

purpose in its adoption and thus, violates the Supremacy

Clause. That simply is not the law. In reaching its holding

that state statutes of limitation for personal injury actions

should apply to claims brought under 42 U.S.C. § 1983, the

Court observed that, “A federal clause of action ‘brought at

any distance of time’ would be ‘utterly repugnant to the genius

of our laws.” Wilson v. Garcia, 471 U.S. 261, 271 (1985),

citing Adams vy. Woods, 2 Cranch 336, 342 (1805). In a

frequently quoted passage, this Court described the basis for

its decision to apply a state statute of limitation for personal

injury claims to claims under 42 U.S.C. § 1981 as follows:

Although any statute of limitations is necessarily

arbitrary, the length of the period allowed for

instituting suit inevitably reflects a value judgment

concerning the point at which the interests in favor

of protecting valid claims are outweighed by the

interests in prohibiting the prosecution of state

ones.... In borrowing a state period of limitation

for application to a federal cause of action, a

federal court is relying on the state’s wisdom in

setting a limit, and exceptions thereto, on the

prosecution of a closely analogous claim. Johnson

v. Railway Express Agency, Inc., 421 U.S. 454,

463-64 (1976).

The Court also stated that federal court should not show any

“special reluctance” to apply state law. (/d.).

As Petitioner asserts, the Metropolitan Government did

not plead the statute of limitations; however, as this Court

15

has stated, the general purposes and principles of all statutes

of repose are the same. Goodman v. Lukens Steel Company,

et al., 482 U.S. 656, 664-65 (1987).

The ruling of the Tennessee Court of Appeals amounts

to nothing more than a statute of repose. That Court found

that public policy dictates that after a long period of

acceptance, of at least ten years, that there can be no challenge

to a law based on any alleged procedural flaw in its adoption.

(Petition, Appendix B, 9a-10a). In reaching that conclusion,

the Court relied on precedents in Tennessee and at least four

other states. The logic and rationale underlying that decision

is precisely the same as that which underlies the decisions in

Wilson v. Garcia; Johnson v. Railway Express Agency, Inc.;

and Goodman v. Lukens Steel Company, et al., as quoted

above. Thus, its decision is not inconsistent with federal law.

Petitioner cites the Tenth Circuit case of Carter v. City

of Salina, 773 F.2d 251, 254 (10" Cir. 1985) for the

proposition that a zoning ordinance that does not comply

with state procedural notice requirement is void and subject

to attack at any time. It was a diversity case that apparently

relied on Utah law. (/d., 773 F.2d 252). However, five years

later the Tenth Circuit upheld another challenge to a zoning

ordinance from Utah where plaintiffs could have known about

the ordinance for 17 years through publication and actually

knew of it for nine years before filing suit challenging the

procedure used in its adoption. Thatcher Enterprises v. Cache

County Corporation, et al., 902 F.2d 1472, 1475-76 (10

Cir. 1990). The Thatcher court distinguished its earlier ruling

in Carter v. City of Salina because that the plaintiffs in that

case lived outside of Utah and could not possibly receive

notice by publication of the ordinance. In reaching its decision

in Thatcher, the Court cited at least three of the same cases

16

relied upon by the Tennessee Court of Appeals and eloquently

stated its reasoning to the effect that

Whether the reason is called laches, estoppel,

waiver or public policy, challenges to the

procedural validity of a zoning ordinance and

constitutional based thereon must be brought

within a reasonable time from enactment of the

ordinance. If not brought in a timely manner, the

plaintiff will be barred from challenging the

zoning ordinance.

(/d.). In the instant case, Petitioner resided in Nashville in

1985 and not some other state. Petitioner’s reliance on

LaSalle National Bank v. City of Evanston, 179 N.E.2d 673,

675-76 (Ill. 1963) is similarly misplaced because the

challenge in that case went to the substance of the zoning

ordinance, not to the procedure by which it was adopted.

Thus, it is irrelevant to the instant case. Illinois follows

much the same rule as Tennessee in procedural challenges.

Smith v. City of MaComb, 352 N.E.2d 697, 703 (Ill. Ct. App.

1976).

The policy of the State of Tennessee, applicable to

challenges to zoning ordinances, as stated by the Tennessee

Court of Appeals, does not conflict with 42 U.S.C. § 1983,

and complies with federal policy to the extent that there must

be some limitation to the right to bring procedural challenges

to the adoption of statutes. Moreover, Tennessee’s policy is

fully consistent with the majority rule among the states. There

is no need for the Supreme Court to consider this matter.

17

C. Petitioner had Adequate Post Deprivation Remedies

under Tennessee Law.

In the event a court determines that the procedural arm

of the Due Process Clause applies to a case, it still must find

that state law does not provide an adequate remedy before

allowing recovery. Hudson v. Palmer, 468 U.S. 517, 532-33

(1984). In the event that a deprivation of due process was

caused by a random, unauthorized, negligent or intentional

act of a state employee so that a pre-deprivation hearing is

impracticable, then due process is satisfied if the

state provides an adequate post-deprivation remedy. (/d.).

The random and unauthorized act cannot be the result of a

state law or established procedure. Logan v. Zimmerman

Brush Co., 455 U.S. 422, 435-36 (1982). Further, a pattern

of practice of such acts, in violation of state law, will not fall

into the category of a random or unauthorized act because a

pre-deprivation hearing is possible in such a situation.

Zinerman v. Burch, 494 U.S. 113, 135-37 (1990).

Petitioner claims that the decision of the Tennessee Court

of Appeals means th:. she has no remedy under Tennessee

law. However, she overlooks at least two remedies that were

available to her. In 1997, the Historic Zoning Commission

denied her request for a variance of the guidelines adopted

under the 1985 Ordinance. (R. 184). At that point, Tennessee

law provided her an appeal to a court of record through

common-law certiorari. (T.C.A. § 27-9-101, et seq.) Although

such appeals are confined to the administrative record, the

court reviews whether the administrative body’s action was

arbitrary or capricious. Hoover, Inc. v. Metro Bd. of Zoning

Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996).

18

Constitutional issues may also be raised in such a

proceeding, Willamette Industries, Inc. v. Tennessee

Assessment Appeals Commission, 11 S.W.3d 142, 150-51

(Tenn. Ct. App. 2000), and attorney fees are recoverable if

authorized by law. Wimley v. Rudolph, 931 S.W.2d 513, 516-

17 (Tenn. 1996). It is impossible to know how Petitioner

would have fared under such a proceeding, but the courts

might have looked more favorably on her case had she

expeditiously sought a remedy.

The other remedy available to Petitioner would be for

inverse condemnation for damages under T.C.A § 29-16-123

for a regulatory taking. Davis v. Metropolitan Govt, 620

S.W.2d 532, 534 (Tenn. Ct. App. 1981).

The failures on the part of the Metropolitan Government

to provide notice were obviously random, unauthorized

violations of state law. Staff personnel at the Historic Zoning

Commission, most likely overlooked the requirements and

failed to follow through but even if the oversight was

intentional, it makes no difference. There is nothing in the

record to indicate that the failure was part of any policy or

practice of misconduct. Therefore, the undisputed facts bring

this case within the category of random and unauthorized

acts.

Tennessee law provided Petitioner with at least two

potential post-deprivation remedies against the Metropolitan

Government. Therefore, there has been no deprivation of

procedural due process of law.

19

CONCLUSION

For the reasons stated above, the Metropolitan

Government respectfully submits that it did not deprive

Petitioner of any right guaranteed by the Due Process Clause

of the Fourteenth Amendment; that the decision of the

Tennessee Court of Appeals did not violate the Supremacy

Clause and that Tennessee law provided adequate post-

deprivation remedies. Therefore, the Metropolitan

Government respectfully requests this Court to deny the

Petition.

* Counsel of Record

Respectfully submitted,

Kar F. DEAN

Director of Law

JoHN L. KENNEDY*

Metropolitan Attorney

MarGareT O. DARBY

Metropolitan Attorney

DEPARTMENT OF LAW OF THE

METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY

204 Metropolitan Courthouse

Nashville, Tennessee 37201

(615) 862-6341

Counsel for Respondents