Amicus Curiae Brief — Lindquist v. Buckingham Township

; Supreme Coury

| UEC 2 2 2004 |

|

No. 04-681 Lo a OF THE CLERK |

Supreme Court of the United States

CORA F. LINDQUIST, INDIVIDUALLY AND AS

EXECUTRIX OF THE ESTATE OF JAMES O.

LINDQUIST,

Petitioner,

V.

BUCKINGHAM TOWNSHIP, et ai.,

Respondents.

On Petition For Writ Of Certiorari To The United States Court of

Appeals For The Third Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF PETITIONER

THOMAS JON WARD

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15TH STREET, NW

WASHINGTON, DC 20005

(202) 266-8200

i

TABLE OF CONTENTS

: Page(s)

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SENN MMIII ci cncsssusccassskivedandddsdddeosoasccosescoce,.ce 3

WIN isda ciabshceininradadlegls ccdisiesrscosdecs ccc. 4

I. The Court Below Has Focused Only On A Subset Of

This Court’s Substantive Due Process Precedent....4

A. Governmental Action That Restricts A

Landowner’s Right To Use Property Must Be

Rationally Related To A Legitimate

Governmental Purpose..........ccccccccccesseesscescecs. 4

B. County of Sacramento v. Lewis Does Not

Mandate Use Of The “Shocks The Conscience”

ae eT AAO OO aR RG 7

II. The “Shocks The Conscience” Standard Confers

State Governments Unwarranted Power To Restrict

Stic. cos eg, a, CET RO OED ee 10

stijesi pasate seicep Ce RO 14

TABLE OF AUTHORITIES

Cases Page(s)

Alden v. Maine, 527 U.S. FOG (IGG a ccccccocsccccsnesessesesesees 10

Allgeyer v. State of Louisiana, 165 U.S. 578 (1897) ......... 3

City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,

538 U.S. 186 (2O0D)......:..inccsgtheae 6

County of Sacramento v. Lewis,

$23 U.S. 833 (2G) ncicscccsssconne ene 7, 8, 9, 10,

Daniels v. Williams, 474 U.S. 327 (1986) ...............004. 3,13

DeShaney v. Winnebago County Dep't of Soc. Servs.,

489 U.S. 189 (1909 }.....:ccccosne eee 13

Goldblatt v. Town of Hempstead,

369 U.S. 390 €99GE) ....cacccencse ee 6

Gundling v. Chicago, 177 U.S. 183 (1900) .........0....cc ee 3

Lindquist v. Buckingham Township, 106 Fed. Appx. 768

(3rd Cir. BOOM)... ...:cccnslesacccueenaeleiae ae 3, 7,8, 12

Lindquist v. Buckingham Township, No. Civ.A. 00-1301,

2003 WL 22757894 (E.D. Pa. Apr. 15, 2003) ..............2. 9

Lingle v. Chevron U.S.A., Inc., 363 F.3d 846 (9" Cir. 2004),

cert. granted, 125 S. Ct. 314 (U.S. Oct. 12, 2004)

(No. 04+ 163).......:s:iscidtzbslea element 7

TABLE OF AUTHORITIES cont..

Page(s)

Moore v. City of East Cleveland,

ion nenialehtndvsicitadsespsbaxenosimnnianns 5

National Ass'n of Home Builders v. Babbitt,

Se ae WUE CE, COE, BOI cc sccecnnccctcncncsssocncsncccesacors 1]

Nectow v. City of Cambridge,

EN MI ii lids ichentascsnipeiipabaabeataiacieidaiaiell 4,5

North Point Breeze Coalition v. City of Pittsburgh,

431 A.2d 398 (Pa. Commw. Ct. 1981) ....0..cccccceccceeeeeees 9

Schad v. Borough of Mount Ephraim,

ES PS ce OER RT 5

Shalala v. Illinois Council On Long Term Care, Inc.

I eT ins iesoc datbhailsnchindcndssubncidsinsabssomoecstseawsnndeainia 9

Sullivan v. Town of Salem, 805 F.2d 81

I ails isclecc acide cociahcevebunielannioase 13

POE V: COR, SOR UG. 162 COON) oanescccccnccccesescsccecsessonccsess 8

Thornbury Township Bd. of Supervisors v. W.D.D., Inc.,

United Artists Theatre Circuit, Inc. v. Townsnip of

Warrington, 316 F.3d 392 (3™ Cir. 2003).......... 7, 8,9, 11

United States v. Deaton, 332 F.3d 698

(4" Cir. 2003)........... 3 SRE SL Nate ee 1

TABLE OF AUTHORITIES cont..

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).......... 6

Village of Euclid v. Amber Realty,

PR CEN FOO CEE sininostsdinth intnanteisssnntiniecnnsaiiomankinah 4

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............... eee 12

CONSTITUTION

2. CEE, ING, FEE Oe tihinadcteesriaciccton 3

OTHER

J.W. Ehrlich, Ehrlich’s Blackstone

NE TE ee axsiseecsnssachvsteesvidaswntninicnaraniatees 10

James W. Ely, Jr., The Guardian of Every Other Right, A

Constitutional History of Property Rights (Oxford

University Preas 24 66. 1998) ........0.s0sescreccssooesecesases 10, 11

James W. Ely, Jr., The Federalist No. 54

CEPUIRRE CRI, NTR Si ctsticastsssinsnccnanenencnesameradcess 1]

Bernard H. Siegan, Property Rights (Transaction

I I Bice cetiestecactilcshscesneoes sinless bieipabiagnenaiviediian 10

Gordon S. Wood, The Radicalism of The American

IE Ce a iideatkcnsccinicentsbicdenenninibpsstisianctcnaitaadiuna 11

INTEREST OF AMICUS

The National Association of Home Builders (“NAHB”) has

received the parties’ written consent to file this brief as

amicus curiae in support of the Respondents. Letters of

consent have been filed with the Clerk of the Court.’

NAHB represents over 215,000 builder and associate

members throughout the United States. Its members include

not only people and firms that construct and supply single-

family homes, but also apartment, condominium, multi-

family, commercial and __ industrial builders, land

developers, and remodelers. It is the voice of the American

shelter industry. Many of NAHB’s membe:s own and

develop land. It is therefore concerned with any judicial

decision that affects the regulation of land development.

Protecting our members’ fundamental constitutional rights

in property has long been an integral part of our activities.

NAHB has appeared before the Court as an amicus curiae

or as “of counsel” to the landowners in a number of cases

involving the rights and remedies of landowners who have

been adversely affected by governmental actions. These

include: Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621

(1981); Williamson County Reg’l Planning Comm'n vy.

Hamilton Bank, 473 U.S. 172 (1985); MacDonald, Sommer

& Frates v. Yolo County, 477 U.S. 340 (1986); First

English Evangelical Lutheran Church of Glendale vy.

County of Los Angeles, 482 U.S. 304 (1987); Nollan v. Cal.

' Pursuant to Rule 37.6 of this Court, amicus states that its

counsel authored this brief and amicus paid for it. This brief was

not written in whole or part by counsel for a party, and no one

other than amicus made a monetary contribution to its

preparation.

2

Coastal Comm'n, 483 U.S. 825 (1987); Lucas v. S.C.

Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of

Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Communities for a Great Or., 515 U.S. 687

(1995); Suitum v. Tahoe Reg'l Planning Agency, 520 U.S.

725 (1997); City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Solid Waste Agency of N.

Cook County v. United States Army Corps of Eng’rs, 531

U.S. 159 (2001); Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg'l Planning Agency, 535 U.S. 302 (2002); Borden

Ranch P’Ship v. United States Army Corps of Eng’rs, 537

U.S. 99 (2002); City of Cuyahoga Falls v. Buckeye Cmty.

Hope Found., 538 U.S. 188 (2003); S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe of Indians, 124 §S. Ct. 1537

(2004); and Kelo v. City of New London, 843 A.2d 500

(Conn. 2004), cert. granted, 125 S. Ct. 27 (U.S. Sept. 28,

2004) (No. 04-108).

** The Couri’s opinion cited NAHB’s brief. 483 U.S. at 840.

INTRODUCTION

The Fourteenth Amendment provides that no state shall

“deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, §1. This Court

has developed an interpretation of the Due Process Clause

that protects one’s basic substantive rights, in addition to

procedural rights. “Substantive due process” guarantees

that a state cannot deny a person’s life, liberty or property

without appropriate governmental justification, regardless

of the government’s procedures. See, e.g., Daniels v.

Williams, 474 U.S. 327, 331 (1986) (explaining that the due

process clause “bar[s] certain government actions

regardless of the fairness of the procedures used to

implement them . . .”); Gundling v. Chicago, 177 U.S. 183,

188 (1900) (explaining that it is possible for a state to

deprive property rights by unreasonable legislation);

Allgeyer v. State of Louisiana, 165 U.S. 578 (1897)

(recognizing that “liberty” means more than a person’s

right to be free from incarceration, but also to be free to

“live and work where he will” and enter into proper

contracts).

In the case below, the Petitioners claimed that Buckingham

Township violated their right to substantive due process by

abusing its zoning and planning authority and unlawfully

conspiring to thwart their land development project.

Lindquist v. Buckingham Township, 106 Feu. Appx. 768,

769 (3 Cir. 2004). In analyzing the Petitioner’s

substantive due process claim, the Court of Appeals applied

the “shocks the conscience test.” /d. at 773. Applying such

a heightened test to a land use setting contradicts the clear

precedent of this Court and will erode the rights of all

persons to use and enjoy their property without

unwarranted interference.

ARGUMENT

I. The Court Below Has Focused Only On A Subset

of This Court’s Substantive Due Process Precedent.

A. Governmental Action That’ Restricts a

Landowner’s Right to Use Property Must be

Rationally Related To a _ Legitimate

Governmental Purpose.

This Court’s early decisions dealing with restrictions of

land use establish a substantive due process test that the

Court has never renounced. In Village of Euclid v. Amber

Realty, 272 U.S. 365 (1926), landowners facially

challenged a zoning ordinance on the grounds that it

violated the Due Process Clause of the Fourteenth

Amendment. The ordinance in question established use,

height and area districts in the Village. /d. at 380. In

upholding the constitutionality of the ordinance, the Court

explained that a land use regulation would be deemed

unconstitutional where its provisions are “clearly arbitrary

and unreasonable, having no substantial relation to public

health, safety, morals or general welfare.” /d. at 395. In

addition, the Court provided that when provisions of the

ordinance are applied to “particular premises . . . or to

particular conditions . . . some of them, or even many of

them may be found to be clearly arbitrary and

unreasonable.” /d.

Just two years later, the Court decided Nectow v. City of

Cambridge, 277 U.S. 183 (1928), in which a landowner

brought a due process challenge to a zoning ordinance as

applied to his 29,000 square foot parcel. In Nectow, the

Court stated that “[t]he governmental power to interfere by

zoning regulations with the general rights of the land owner

by restricting the character of his use, is not unlimited... .”

Id. at 188. Moreover, it found that by applying the

ordinance in question to the landowner, the City violated

the Fourteenth Amendment because the restriction did “not.

bear a substantial relation to the public health, safety,

morals and general welfare.” Jd. at 187.

Since these early decisions, the Court has infrequently

reviewed cases where a landowner has complained that a

government body violated the Due Process Clause under its

zoning and planning authority.’ See Moore v. City of East

Cleveland, 431 U.S. 494, 514 (1977) (Stevens, J.,

explaining the history between the years 1928 and 1977).

However, in the cases that the Court has reviewed, it has

never suggested that the government’s action must “shock

the cci:science” before a violation of the due process clause

can lie. Rather, the Court has consistently applied a more

traditional “arbitrary or capricious,” “rational basis” means-

end analysis. See Schad v. Borough of Mount Ephraim,

452 U.S. 61, 68 (1981) (“Where property interests are

adversely affected by zoning, the courts have generally

emphasized the breadth of municipal power to control land

use and have sustained the regulation if it is rationally

related to legitimate state concerns . . .”); Moore, 431 U.S.

at 500 (explaining that the ordinance at issue violated the

due process clause because it had only a “tenuous relation”

to the government’s stated purpose); Village of Belle Terre

v. Boraas, 416 U.S. 1 (1974); Goldblatt v. Town of

Hempstead, 369 U.S. 590, 594-96 (1962) (providing that to

protect the public under its police power the governmental

3 In contrast, the Court’s decisions analyzing property

restrictions under the Takings clause have been more frequent.

See, e.g., cases cited supra at 1-2.

action must be reasonably necessary to accomplish its

purpose).

In City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,

538 U.S. 188 (2003), the Courts’ most recent land

restriction decision analyzed under the Due Process Clause,

a landowner who desired to build a low income housing

complex claimed that the City violated its substantive due

process rights “y i) subjecting its site plan approval to

referendum, and ii) refusing to issue building permits after

the City Council had approved the site plan. The Court did

not look to see whether the City’s actions shocked its

conscience. Instead, it explained that there was no

precedent to support the argument that subjecting the plan

approval to referendum was “per se arbitrary governmental

conduct” that would violate the due process clause. /d. at

199. Furthermore, the Court reviewed the denial of the

building permits to determine whether the City’s conduct

was “egregious or arbitrary.” /d. It found that the law

director and engineer’s refusal to issue the permits

“rational” in light of a charter provision that made it

unlawful to issue the permits. /d.

Though the Court has used a variety of terms to describe

the proper test for determining whether a governmental

land use restriction violates the due process clause, the

Court has never overruled its decisions in Euclid and

Nectow. Furthermore, the Court has never suggested that

the lower courts should review such restrictions to

determine whether they “shock the conscience.” By

* In Lingle v. Chevron U.S.A., Inc., 363 F.3d 846 (9" Cir. 2004),

cert. granted, 125 S. Ct. 314 (U.S. Oct. 12, 2004) (No. 04-163),

one issue presented is whether a land use restriction can be held

invalid under the Takings Clause. Both the United States and the

State of Hawaii argue that “substantially advance a legitimate

Wo

applying such a heightened level of review to a land use

restriction case, the Third Circuit has disregarded this

Court’s precedent.

The Court should review this matter to reassert that

governmentz! action that restricts a property owner’s right

to use property must be rationally related to a legitimate

governmental purpose.

B. County of Sacramento v. Lewis Does Not

Mandate Use of The “Shocks The Conscience”

Test.

In the case below, the Third Circuit applied the “shocks the

conscience” test by following its earlier decision in United

Artists Theatre Circuit, Inc. v. Township of Warrington,

316 F.3d 392 (3 Cir. 2003). Lindquist, 106 Fed. Appx. at

773. The United Artist panel relied on this Court’s decision

County of Sacramento v. Lewis, 523 U.S. 833 (1998) when

it explained that “executive action violates substantive due

process only when it shocks the conscience... .” United

Artists, 316 F.3d at 399-400 (emphasis added).

state interest” is the proper test for a substantive due process

violation. Brief For Petitioners at 23-28, Lingle v. Chevron

U.S.A., Inc., 363 F.3d 846 (9" Cir. 2004), cert. granted, 125 S.

Ct. 314 (U.S. Oct. 12, 2004) (No. 04-163) (section discussing

“The ‘Substantially Advance’ Test Is Actually The Test For A

Substantive Due Process Violation”); Brief of Amicus Curiae

The United States at 9, 22 n.10, 24-26, Lingle v. Chevron U.S.A.,

Inc., 363 F.3d 846 (9"" Cir. 2004), cert. granted, 125 S. Ct. 314

(U.S. Oct. 12, 2004) (No. 04-163) (“the phrase ‘substantially

advance’ has its roots in due process jurisprudence . . .”).

Neither, the United States nor Hawaii suggests that the proper

due process test in a land use matter is whether the government’s

actions shock the conscience.

The Third Circuit misinterpreted County of Sacramento and

has improperly expanded that decision beyond the facts it

addressed. In County of Sacramento, the Court clearly

explained that the core concept of due process is “the

protection against arbitrary action.” County of Sacramento,

523 U.S. 845-46 (citing Hurtado v. California, 110 U.S.

516 (1884); Wolff v. McDonnell, 418 U.S. 539 (1974);

Fuentes v. Shevin, 407 U.S. 67 (1972); and Daniels v.

Williams, 474 U.S. 327 (1986)). It then addressed it

decisions that rely on the “shocks the conscience” test and

explained that “the Due Process Clause is violated by

executive action only when it ‘can properly be

characterized as arbitrary, or conscience shocking, in a

constitutional sense.’” County of Sacramento, 523 U.S. at

847 (quoting Collins v. Harker Heights, 503 U.S. 115

(1992)) (emphasis added). By providing that the Due

Process Clause is violated “only” when executive action

shocks the conscience the Third Circuit has ignored the |

first, and traditional, standard by which the government can

violate the Due Process clause: namely when its actions can

be characterized as “arbitrary” or “irrational.”

Moreover, “([cJonstitutional rights are not defined by

inferences from opinions which did not address the

question at issue.” Texas v. Cobb, 532 U.S. 162, 169

(2001). In County of Sacramento, the Court stated the issue

of the case as “whether a police officer violates the

Fourteenth Amendment’s guarantee of substantive due

process by causing death through deliberate or reckless

indifference to life in a high speed automobile chase aimed

at apprehending a suspected offender.” County of

Sacramento, 523 U.S. at 835. The Third Circuit, however,

applied the test described in County of Sacramento, to the

“more mundane world of land use decisions, where lifeless

—

ieee

property interests . . . are involved” and has thereby

narrowed the substantive due process rights of property

owners in that circuit. United Artists, 316 F.3d at 407

(Cowen, J., dissenting). If this Court believes that “shocks

the conscience” is the correct test for a matter dealing with

governmental abuse of the police power over land use

decisions, it must say so explicitly. See Shalala v. Illinois

Council On Long Term Care, Inc. 529 U.S. 1, 18 (2000)

(“The Court does not normally overturn, or so dramatically

limit, earlier authority sub silentio.”).

Finally, in County of Sacramento, the Court used the

shocks the conscience test because it was “dealing with

abusive executive action ....” County of Sacramento, 523

U.S. at 846 (emphasis added). In the case below, however,

the Board of Supervisors denied the landowners plans by

resolution. Lindquist v. Buckingham Township, No. Civ.A.

00-1301, 2003 WL 22757894, at *3-6 (E.D. Pa. Apr. 15,

2003). These types of actions are properly considered

adjudicatory actions, not executive. Thornbury Township

Bd. of Supervisors v. W.D.D., Inc., 546 A.2d 744, 747 (Pa.

Commw. Ct. 1998); North Point Breeze Coalition v. City of

Pittsburgh, 431 A.2d 398, 401 (Pa. Commw. Ct: 1981).

Thus, the Third Circuit has again misapplied County of

Sacramento to a fact pattern to which it does not fn.

The Court should grant certiorari to correct the Third

Circuit’s incorrect interpretation of County of Sacramento.

Il. The “Shocks The Conscience” Standard Confers

State Governments Unwarranted Power to Restrict

Property Rights.

In pre-Constitutional America, most states followed the

English common law as the basis for their jurisprudence

10

and “the views of William Blackstone influenced American

law long after the break with England.” Ely, supra, at 32;

See Alden v. Maine, 527 U.S. 706, 715 (1999) (explaining

that Blackstone’s “works constituted the preeminent

authority on English law for the founding generation”).

Blackstone wrote that individuals have certain “absolute”

rights, which are rights that belong to individuals “merely

in a state of nature, and which every man is entitled to

enjoy, whether out of society or in it.” J.W. Ehrlich,

Ehrlich’s Blackstone 42 (Greenwood Press 1959). “The

third absolute right, inherent in every Englishman, is that of

property: which consists in the free use, enjoyment, and

disposal of all his acquisitions, without any control or

diminution, save only by the laws of the land.” /d. at 51.

The Colonial leaders of the United States believed that “the

protection of private property was crucial to the

preservation of freedom,” and that “property rights

antedated political liberty.” James W. Ely, Jr., The

Guardian of Every Other Right, A Constitutional History of

Property Rights 28 (Oxford University Press 2d ed. 1998);

See generally Bernard H. Siegan, Property Rights 50-52

(Transaction Publishers 2001). Thomas Jefferson, in fact,

believed that property ownership was so fundamental to the

creation of the United States that “he proposed in 1776 that

the new state of Virginia grant fifty acres of land to every

man that did not have that many.” Gordon S. Wood, The

Radicalism of The American Revolution 179 (1991).

Because of the importance of property, the founding fathers

understood that the function of government was to secure

these rights. Ely, supra, at 32; The Federalist No. 54, at

278 (James Madison) (Bantam Classic ed., 1982)

(“Government is instituted no less for protection of the

property, than of the persons of individuals . . . . The rights

of property are committed into the same hands with the

personal rights.”’).

Certainly, applying the amorphous “shocks the conscience”

standard to matters dealing with governmental land use

restrictions allows even “intentional and flagrant abuses of

authority . . . to go unchecked.” United Artists, 316 F.3d at

406-407 (Cowen, J., dissenting). In addition, such a

demanding standard, will eventually lead to a further

erosion of property rights. As governments take actions

that restrict property rights more often, these actions are

less likely to shock the conscience. In other words, actions

that shock the conscience today will not shock the

conscience 50 or 100 years from now. For example, a

century ago it may have “shocked the conscience” to

restrict land use by regulating the habitat of a fly or by

deeming an upland drainage ditch a “navigable water.”

These types of regulations, however, are apparently not

“conscience shocking” in today’s heightened regulatory

climate. See, e.g., National Ass'n of Home Builders v.

Babbitt, 130 F.3d 1041 (D.C. Cir. 1997); United States v.

Deaton, 332 F.3d 698 (4" Cir. 2003). It is hard to accept

that the founding fathers anticipated or would have

condoned the erosion of property rights that will surely

follow from applying the “shocks the conscience” standard

to matters dealing with governmental restrictions of land

use.

Finally, in supporting its use of the shocks the conscience

test, the Third Circuit explained that even when

government knowingly or in bad faith enforces unlawful

land use restrictions its conscience is not shocked and the

Constitution is not violated. See 106 Fed. Appx. at 774.

(citing Chesterfield Dev. Corp. v. City of Chesterfield, 963

F.2d 1102 (8"" Cir. 1992); Baker v. Coxe, 230 F.3d 470 qi"

12

Cir. 2000); Natale v. Town of Ridgefield, 170 F.3d 258 (2d

Cir. 1999); and PFZ Properties, Inc. v. Rodriquez, 928 ¢.2d

28 (1" Cir. 1991)).

The foundation of-our government is that governmental

officials may not restrict any right for personal or arbitrary

reasons. Over 100 year ago, the Court explained that the

nature and the theory of the United States’

institutions of government [and] the principles

upon which they are supposed to rest . . . do not

. . leave room for the play and action of purely

personal and arbitrary power . . . . [Sovereign

powers are delegated to the agencies of

government, sovereignty itself [however,]

remains with the people . . . . And the law is the

definition and limitation of power. \

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

Furthermore, the purpose of the Fourteenth Amendment’s

due process clause is “to protect the people from the State.”

DeShaney v. Winnebago County Dept. of Social Services,

489 U.S. 189, 196 (1989).

Actions taken by a government official that he or she

knows are illegal, or that are taken for personal reasons,

destabilize the foundation of our institutions of

government. And these are exacily the types of actions

from which the people must be protected. Cf Daniels v.

Williams 474 U.S. 327, 333-34 (1986) (explaining that a

deliberate decision not to comply with required procedures

violates the Due Process Clause); Sullivan v. Town of

Salem, 805 F.2d 81, 85 (2d Cir.1986) (if a government

official refused to issue permits to a developer for reasons

13

that were in violation of state law, such retusa!c “would

constitute a deprivation of property without due process”).

The Court should review this matter to ensure that the

peoples’ rights to own and use property are not

continuously eroded and to protect the people from any

government that would knowingly take illegal actions.

CONCLUSION

The U.S. Constitution does not allow government to

deprive a citizen of his property without due process of law.

By applying the shocks the conscience standard to a land

use restriction case, the Court of Appeals has ignored this

Court’s precedent and unconstitutionally narrowed each

citizen’s right to own and use property. NAHB respectfully

requests that the Court grant certiorari.

DATED: December 22, 2004

Respectfully submitted,

THOMAS JON WARD

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 1STH STREET, NW

WASHINGTON, DC 20005

(202) 266-8200