# Amicus Curiae Brief — Lindquist v. Buckingham Township

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1793%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1121

## Text

; 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)
TE NN as enccscnsovcssoneseskaben ses cesecs. cc. l
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1793%3A4. Public record. Not legal advice.