Opposition Brief — Huneycutt v. City of Suffolk

Supreme Court, U.§

FILED

No. 98-1909 CLERK

In The

Supreme Court of the United States

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J. GRANT HUNEYCUTT, et al.,

Petitioners,

CITY OF SUFFOLK,

Respondent.

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On Petition For Writ Of Certiorari

To The Supreme Court Of Virginia

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BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

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C. Epwarpb Roettcer, Jr.

City Attorney for the

City of Suffolk, Virginia

BeverLey Kay WILSON

Assistant City Attorney

Counsel of Record

Office of the City Attorney

441 Market Street

Post Office Box 1858

Suffolk, Virginia 23439-1858

(757) 923-2001

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

DID THE CITY OF SUFFOLK, VIRGINIA PROPERLY

VACATE THE FAMILY TRANSFER PLAT OF THE

RESPONDENTS, PURSUANT TO VIRGINIA CODE

SECTIONS 15.2-2272(2) and 15.2-2244 (1950), AS

AMENDED, AND SUFFOLK CITY CODE SECTION

78-6? OR ARE THEY VIOLATIVE OF THE FOUR-

TEENTH AMENDMENT TO THE CONSTITUTION

AND VOID FOR VAGUENESS?

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TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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JURISDICTION OF THIS COURT IS NOT BASED

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CIVIL STATUTES REQUIRE LESS STRINGENT

CONSTITUTIONAL REVIEW THAN CRIMINAL

STATUTES OR THOSE WITH FIRST AMEND-

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iii

TABLE OF AUTHORITIES

Page

Cases

District of Columbia Court of Appeals v. Feldman, 460

BRE cerca aan 4

Grayned v. City of Rockford, 408 U.S. 104 (1972)....... 5

Jackson v. W., 14 Va App. 391, 419 S.E. 2d 385

ROSS TE PUGS ooo 00640 i b0094 4440 be ohd odes nes 6

Kolender v. Lawson, 461 U.S. 352 (1983)............... 5

Maynard v. Cartwright, 486 U.S. 356 (1988)............ 7

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ....... 4

U.S. 0. Powell, 423 U.S. 87 (1975). .......ccccccccccces 6

Village of Hoffman Estates v. The Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1962). ........ ccc ccccccse 6

STATUTES

Suffolk City Code Section 25.9-4 (78-6).......... i

Title 28, Section 1331 of the United States Code...... 4

Virginia Code Section 15.1-466 (15.2-2244) (1950),

es ee Ce oe ae kD 2,4, 5

Virginia Code Section 15.1-482 (15.2-2272) (1950),

Ee oo oe ce ba ok bee bcs 1, 3, 4, 5, 7

OPINION BELOW

The Opinion of the Circuit Court of the City of Suf-

folk, Virginia, dated May 28, 1998, is contained in the

Huneycutts’ Petition at 3a. The Opinions of the Virginia

Supreme Court affirming this decision and denying an

appeal, are set forth in the Huneycutts’ Petition at la and

2a.

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory provisions

are set forth herein and in Huneycutts’ Petition at 5a and

6a.

VIRGINIA CODE SECTION 15.1-482(b) (1950), AS

AMENDED

In cases where any lot has been sold, the plat or

part thereof may be vacated according to either

of the following methods .. . (b) By ordinance of

the governing body of the county or munici-

pality in which the land shown on the plat or

part thereof to be vacated lies on motion of one

of its members or on application of any inter-

ested person. Such ordinance shall not be

adopted until after notice has been given as

required by Section 15.1-431. The notice shall

clearly describe the plat or portion thereof to be

vacated and state the time and place of the

meeting of the governing body at which the

adoption of the ordinance will be voted upon.

Any person may appear at such meeting for the

purpose of objecting to the adoption of the ordi-

nance. An appeal from the adoption of the ordi-

nance may be filed within thirty days with the

circuit court having jurisdiction of the land

shown on the plat or part thereof to be vacated.

Upon such appeal the court may nullify the

ordinance if it finds that the owner of any lot

shown on the plat will be irreparably damaged.

If no appeal from the adoption of the ordinance

is filed within the time above provided or if the

ordinance is upheld on appeal, a certified copy

of the ordinance of vacation may be recorded in

the clerk’s office of any court in which the plat

is recorded...

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STATEMENT OF THE CASE

The Petitioner, J. Grant Huneycutt, submitted and

had approved a plat, entitled “Family Transfer Plat

showing Subdivision of Property Owned by J. Grant

Huneycutt & Betty C. Huneycutt-Chuckatuck Borough-

Suffolk, Virginia” (the “Plat”), under Virginia Code Sec-

tions 15.1-466 A.12. and G. (1950), as amended, (now

Section 15.2-2244), and Suffolk City Code Section 25.9-4

(now Section 78-6, referred to as the Family Transfer Act).

Such Plat was duly recorded in the Circuit Court Clerk’s

Office of the City of Suffolk on August 9, 1995. The Plat

listed four parcels of land and a residue. The residue was

sold in September 1995, to an unrelated third party. The

deeds conveying these parcels to family members were

not recorded until April 18, 1996.

Information became available that this subdivision of

land, under the Family Transfer Act, had been done in

circumvention of the Subdivision Ordinance of the City

of Suffolk. Such information included not only the sale of

the residue parcel, but also the lateness of the recording

of the deeds, information from neighbors regarding the

intentions of Mr. Huneycutt, and his putting these parcels

on the market for sale. The City at that time filed a

Petition for Injunctive Relief and Declaratory Judgment,

declaring the recordation of the Plat to be in circumven-

tion of the Family Transfer Act, and an injunction to

prevent further conveyance of any of the lots thereon.

The City of Suffolk, under Virginia Code Section

15.1-482(b) (1950), as amended (now Section 15.2-2272(2)),

duly advertised and held a public hearing to hear evi-

dence regarding the vacation of the Plat. Mr. Huneycutt,

by counsel, appeared and spoke in opposition to the

vacation. The City Council of the City of Suffolk voted,

after hearing the evidence presented at the public hear-

ing, and by staff and counsel, to adopt Ordinance 79-96,

vacating the Plat, except for the Residue parcel and the

ingress and egress easement. Mr. Huneycutt appealed

this decision, asking the Court to nullify the Ordinance.

Both parties, by counsel, filed briefs in regard to the

City’s authority to vacate the Plat. The Circuit Court of

the City of Suffolk ruled that the City had the authority to

vacate the Plat. The appeal of the Huneycutts was dis-

missed, and the City non-suited its Injunction and Declar-

atory Judgment action. The Huneycutts filed their

petition for appeal to the Supreme Court of Virginia,

which was denied on December 17, 1998. A rehearing was

requested which was also denied, on February 26, 1999.

Suffolk City Code Section 78-6 is derived from an

explicit grant of authority from the Code of Virginia

Section 15.2-2244 (1950), as amended, not Section

15.2-2272 as stated by Petitioners.

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ARGUMENT

JURISDICTION OF THIS COURT IS NOT BASED

UPON 28 USCS 1331.

Title 28, Section 1331 of the United States Code sets

forth the Federal question jurisdiction of the District

Courts. However, the District Court has only original

jurisdiction and not appellate jurisdiction. The Rooker-

Feldman doctrine establishes the jurisdiction for review of

State Supreme Court decisions to be vested only in the

United States Supreme Court, by certiorari, not the Dis-

trict Courts. District of Columbia Court of Appeals v. Feld-

man, 460 U.S. 462 (1983), and Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923). In the instant case, the Petitioners

have attempted to base their jurisdiction to this Court

upon a federal question, but have erroneously cited the

wrong United States Code Section. Therefore, jurisdiction

can not be based on the United States Code Section cited.

There is also no substantial federal question pre-

sented in this case which would warrant an award of

certiorari. The issues involve a land use statute, basically

passed by the Commonwealth of Virginia, and imple-

mented by the City of Suffolk. Such issues are locality

based and involve factual issues, best decided by the trier

of fact and the states. Therefore, the issues presented do

not rise to the level of a substantial federal question to

warrant a grant of certiorari.

CIVIL STATUTES REQUIRE LESS STRINGENT CON-

STITUTIONAL REVIEW THAN CRIMINAL STAT-

UTES OR THOSE WITH FIRST AMENDMENT

CONCERNS.

The Family Transfer Statutes in question here, Vir-

ginia Code Section 15.2-2244 (1950), as amended, and

Suffolk City Code Section 78-6, Petition at 5a, allow an

individual to subdivide their property and deed the lots

to family members, as that term is defined in the Virginia

and Suffolk Codes and by case law, without abiding by

the local Subdivision ordinance. Such an ability is a sub-

stantial help to those attempting to keep land, such as a

family farm, within the family unit, and is a privilege.

However, the statutes state that the Family Transfer can

not be used “for the purpose of circumventing this subdi-

vision.” Id.

The City Council of the City of Suffolk vacated the

Family Transfer Plat of the Petitioners after abiding by

the requirements enunciated in Virginia Code Section

15.2-2272(2) (1950), as amended. City Council issued the

required Notice, held a public hearing at which the

Huneycutts, by counsel, spoke in opposition, and duly

passed an Ordinance vacating the Plat. Procedural due

process was clearly accomplished. Petitioners’ contention

that the statutes do not pass substantive due process, as

they are void for vagueness is not substantiated. In sup-

port of this assertion, they cite Kolender v. Lawson, 461

U.S. 352 (1983) and Grayned v. City of Rockford, 408 U.S.

104 (1972), both of which involved penal statutes and

First Amendment concerns. However, the statutes here

are not penal, but civil in nature, and involve no First

Amendment concerns.

The standard for measuring vagueness is not

rigid. ‘The degree of vagueness that the consti-

tution tolerates. . . . depends in part on the

nature of the enactment. The [United States

Supreme] Court has also expressed greater tol-

erance of enactments with civil rather than crim-

inal penalties because the consequences of

imprecision are qualitatively less severe.’ (Foot-

note omitted) Furthermore, if a ‘law interferes

with the right of free speech or association, a

more stringent vagueness test should apply.’

Jackson v. W., 14 Va App. 391, 403, 419 S.E.

2d 385 (1992), quoting, Village of Hoffman

Estates v. The Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 498-499 (1982).

Thus, the statutes involved here are subject to a less

stringent review. However, no definitive standard is

enunciated, except that some clarity is required. U.S. v.

Powell, 423. U.S. 87, 92-93 (1975). It appears to be a very

fact-driven process. In this instant, clarity is provided by

the requirement not to do Family Transfers to circumvent

the Subdivision Ordinance. Surely, common sense says

that if you only do Family Transfers so that you can

immediately sell off the lots to avoid going through the

requirements of the Subdivision Ordinance, then that is

circumvention. The Huneycutts had fair notice of what

was required to stay within the bounds of the law; trans-

fers to family members without trying to get around the

Subdivision Ordinance. In essence, it is circumvention to

attempt to create subdivisions without the restrictions

and requirements of the Subdivision Ordinance, by using

Family Transfers. This is exactly what was attempted.

Common sense dictates that a privilege like Family Trans-

fers have to be utilized fairly or anarchy will result.

The facts of this case are also important to consider

because without First Amendment concerns the

Huneycutts can not assert the vagueness of the statute as

it relates to others, but only as it relates to themselves.

Maynard v. Cartwright, 486 U.S. 356, 361 (1988). As these

statutes apply to them, there is no vagueness. Their

actions were done to circumvent the Subdivision Ordi-

nance, and they were aware of the consequences.

Lastly, the requirements of Virginia Code Section

15.2-2272(2) (1950), as amended, are clear and do give fair

notice and equitable enforcement to the Huneycutts. The

steps are clearly enunciated by the Code, and were fol-

lowed, giving the Huneycutts an opportunity to “defend”

their actions, which they did. Again, the facts are impor-

tant and establish that the requirements of Family Trans-

fers are clear, and were clear to the Huneycutts.

Thus, the Family Transfer Statutes and Virginia Code

Section 15.2-2272(2) pass Constitutional muster under the

review established for civil statutes, giving to the

Huneycutts both fair notice and fair enforcement, as the

facts of this case are examined.

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CONCLUSION

For the foregoing reasons the petition for a writ of

certiorari should be denied.

Respectfully submitted,

BEVERLEY Kay WILSON

City of Suffolk

Respondent Herein

C. Epwarp RoetTTcER, Jr.

City Attorney

BEVERLEY Kay WILSON

Assistant City Attorney

Counsel of Record

Office of the City Attorney

441 Market Street

Post Office Box 1858

Suffolk, Virginia 23439-1858

(757) 923-2001