Amicus Curiae Brief — Stubblefield Construction Co. v. City of San Bernardino

No. 95-114

In the

Supreme Court of the United States

October Term, 1995

STUBBLEFIELD CONSTRUCTION COMPANY and

STUBBLEFIELD PROPERTIES,

Petitioners,

Vv.

CITY OF SAN BERNARDINO,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeal of California

Fourth Appellate District, Division Two

BRIEF OF

ALLIANCE FOR AMERICA,

AMERICAN HOMEOWNERS FOUNDATION,

AS AMICI CURIAE*

IN SUPPORT OF PETITIONERS

Nancie G. Marzulla

President and

Chief Legal Counsel

DEFENDERS OF

PROPERTY RIGHTS

6235 33rd St., NW

Washington, DC

20015-2405

(202) 686-4197

September 20, 1995

*Amici listing continued on next page

[CONTINUED FROM COVER]

BRIEF AMICI CURIAE OF

BUILDING INDUSTRY ASSOCIATION,

CITIZENS AGAINST REPRESSIVE ZONING,

CITIZENS FOR CONSTITUTIONAL PROPERTY

RIGHTS,

CITIZENS FOR PRIVATE PROPERTY RIGHTS,

DAVIS MOUNTAIN TRANS-PECOS HERITAGE

ASSOCIATION,

ENVIRONMENTAL CONSERVATION

ORGANIZATION,

GOLDEN STATE RESOURCE MANAGEMENT

GROUP,

HILL COUNTRY LANDOWNERS ASSOCIATION,

LAND RIGHTS FOUNDATION,

OREGONIANS IN ACTION LEGAL CENTER,

PENNSYLVANIA LANDOWNERS’

ASSOCIATION,

PEOPLE FOR THE WEST! ACCORD CHAPTER,

PUTTING PEOPLE FIRST,

SMALL BUSINESS SURVIVAL COMMITTEE,

TRANS TEXAS HERITAGE ASSOCIATION, and

DEFENDERS OF PROPERTY RIGHTS

i

QUESTION PRESENTED FOR REVIEW

Does the Due Process Clause of the Fifth and

Fourteenth Amendments of the United States Constitution

prohibit local governments from making arbitrary and abusive

land use decisions that are not related to a legitimate

government interest? 7

ss

TABLE OF CONTENTS

QUESTION |

TI oie ae

TABLE OF

Pe i snide sn ashes atone iii

IDENTITIES AND INTERESTS OF

Ie Pe ick aha th cates eaten bed vecacn sce tenccintivekite aides 3

METS SP FN Said citnscscansssesnpstesesvnesens 8

REASONS FOR GRANTING THE

Fe icy sc iinialachasadarenebiaisois ovbirrniseicpoteuneesines 13

I. THIS CASE RAISES AN ISSUE OF CRITICAL

IMPORTANCE FOR PRIVATE PROPERTY

OWNERS -- WHETHER THE DUE PROCESS

CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS PROTECTS PRIVATE PROPERTY

RIGHTS AGAINST ARBITRARY AND ABUSIVE

INFRINGEMENT BY GOVERNMENT............. 13

Il. THE FAILURE OF THIS COURT TO DEFINE

WHAT PROCESS IS DUE AN INDIVIDUAL WITH

RESPECT TO THE REASONABLE USE OF HIS

PROPERTY HAS LED TO MUCH CONFUSION BY

CFU RITE D Clow ancrcdencnsxinccecnctaaviccnsasseucts 17

Re ee aa cahieinta chen cdaccabaksicedaséceesdavaens seuceanes 20

iii

TABLE OF AUTHORITIES

CASES

Daniels v. Williams, 474 U.S. 327 (1986).....0.....0000000.. 15

DeBlasio v. Zoning Bd. of Adjustment,

Pa ee ee Ba Ae escent iat 18

Dolan v. City of Tigard, 114 S. Ct. 2309 (1987).......... 9, 14

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482

as Be Ree atic cekias a ence 8

Kaiser Aetna v. United States,

S66 25; Wee Ge iiiecercccutsason ene 15

Loan Assn. v. Topeka,

ST UA GR Wee) Ge CRP acini cee riences 12

Lucas v. South Carolina Coastal Council,

bea eg UR Pre ee rrrre 8, 13

Mid-American Waste Systems vy. City of Gary,

ee ee Fe, Se, eRe am oe ee 19

National Paint & Coatings Ass’n v. Chicago,

SS F356: LEA... Sree Be i cetticitientiocnmcd: 19

Nollan v. California Coastal Commission,

ES Ue. ee Ee ivkresataneasancumintuse 13,14

iV

Penn Central Transp. Co. v. New York City,

ren - SUE” © UUPUUUD, cc cssiidausuucscandsakvacek spose viaweenen 15

Triomphe Investors v. City of Northwood,

ee I OE ETE © OO Rc scicsrncssscucsasseasseivnesseansies 18

United States Trust Co. v. New Jersey,

LN RR SR: g | SRR ey ea een renee enn errant es 15

Washington ex rel Seattle Title Trust Co.

pe Ray a Eg |v.) Spree 13

UNITED STATES CONSTITUTION

es I, BY waciccckiccracnssentsccesixdvasbessscenions 8

en ec MINES” WF vec cnoncecancscanaassvevnseeanvenes passim

es UN, DOING, FAY canscksidiscovsieceneciccasederens passim

MISCELLANEOUS

James Madison, Federalist Paper No. 54.................000000+ 9

Rosalie Berger Levinson,

Protection Against Government

Abuse of Power: Has the Court Taken the

Substance Out Of Substantive Due Process,

Saree Ul. EPUWOOR Li. TOV. SE CHIE Biccivsncccecensisccsacessece 17

Stephen Page, Jn My Former Life As A Seagull,

ln iy SOD. Ey Rs iio ented 17

No. 95-114

In the

Supreme Court of the United States

October Term, 1995

STUBBLEFIELD CONSTRUCTION COMPANY and

STUBBLEFIELD PROPERTIES,

Petitioners,

V.

CITY OF SAN BERNARDINO,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeal of California

Fourth Appellate District, Division Two

BRIEF OF

ALLIANCE FOR AMERICA,

AMERICAN HOMEOWNERS FOUNDATION,

BUILDING INDUSTRY ASSOCIATION,

CITIZENS AGAINST REPRESSIVE ZONING,

CITIZENS FOR CONSTITUTIONAL PROPERTY

RIGHTS,

CITIZENS FOR PRIVATE PROPERTY RIGHTS,

DAVIS MOUNTAINS TRANS-PECOS HERITAGE

ASSOCIATION,

ENVIRONMENTAL CONSERVATION

ORGANIZATION,

GOLDEN STATE RESOURCE MANAGEMENT

GROUP,

HILL COUNTRY LANDOWNERS ASSOCIATION,

LAND RIGHTS FOUNDATION,

OREGONIANS IN ACTION LEGAL CENTER,

PENNSYLVANIA LANDOWNERS’

ASSOCIATION,

PEOPLE FOR THE WEST! ACCORD CHAPTER,

2

PUTTING PEOPLE FIRST,

SMALL BUSINESS SURVIVAL COMMITTEE,

TRANS TEXAS HERITAGE

ASSOCIATION, and

DEFENDERS OF PROPERTY

RIGHTS,

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

3

Pursuant to Rule 37.3 of the Rules of this Court, the amici

submit this brief amici curiae in support of Petitioners,

Stubblefield Construction Company and Stubblefield

Properties. The amici support granting of the Petition for Writ

of Certiorari. Consent to the filing of this brief has been

granted by counsel for Petitioners and counsel for

Respondent, and has been lodged with the Clerk of this Court.

IDENTITIES AND INTERESTS OF

AMICI CURIAE

Alliance for America (Gloversville, NY) is a fifty state

network of nearly 500 independent, grassroots property rights

organizations whose collective membership represents millions

of individual property owners all across the country. Groups

under the Alliance’s umbrella cover the full spectrum of

property nights interests including the nght to fair application

of zoning laws.

American Homeowners Foundation (Arlington, VA)

is an independent education and research organization serving

the nation’s sixty-five million homeowners and millions of

future homeowners. AHF is dedicated to making home

ownership possible for non-owners, helping homeowners in

need, protecting home values and ownership tax incentives,

and helping people make the best informed decision when

purchasing a home.

Building Industry Association (Olympia, WA) is a

federation of regional and local associations representing over

5,600 members engaged in commercial and light industrial

4

construction and the building of most of Washington State’s

residential housing. The interest of BIA-Washington in this

case is to ensure that decisions regarding restrictions on

development are made in a fair and predictable manner.

Citizens Against Repressive Zoning (East Lansing,

MI) is an organization of citizens concerned about over-

restrictive zoning laws. CARZ continuously monitors zoning

decisions across the nation, and provides resources and advice

to persons whose property interests have been adversely

affected by zoning laws.

Citizens for Constitutional Property Rights, Inc.

(Crestview, FL) is a statewide organization whose mission is

to secure private property guarantees provided in the Bill of

Rights. CCPR engages in public advocacy projects that foster

an awareness of governmental programs that violate the United

States Constitution by eroding private property rights.

Citizens for Private Property Rights (Sullivan,

MO) is a grassroots organization formed to protect and

preserve the legal, equitable and traditional rights of property

owners.

Davis Mountains Trans-Pecos’ Heritage

Association (Alpine, TX) is an association of Texas citizens

formed in response to the abridgement of private property

rights in the Davis Mountains and Trans-Pecos areas. The

Association supports private property rights protection through

research, public education and other activities. Its mission

embraces conservation of natural resources in conjunction with

5

respect for private property rights, which underlie all other

individual liberties.

Environmental Conservation Organization

(Hollow Rock, TN) represents more than 500 local, state,

regional and national organizations that promote free-market

alternatives to regulatory environmental protection. The

organization believes that private property rights are the

foundation of all free-market options, and that government

regulation limits and precludes opportunities for free-market

alternatives for environmental conservation.

Golden State Resource Management Group

(Moreno Valley, CA) is a private consulting firm providing

policy advice to farmers, ranchers, landowners and non-profit

associations on the issues of endangered species, natural

resource and environmental laws as well as regulations and

their effects on land use. Many of Golden State’s clients are

located in the southern California area.

Hill Country Landowners’ Association

(Georgetown, TX) was formed in 1991 in response to plans to

designate a 30,000-acre endangered species habitat in the State

of Texas. The Coalition opposes the enlargement of the

authority of unelected officials due to the fact that they are not

subject to voter approval and their decisions can be remedied

only through litigation.

Land Rights Foundation (Gloversville, NY) is an

educational organization dedicated to providing information

concerning the right to own and enjoy property as guaranteed

by the United States Constitution and state constitutions. This

6

mission is accomplished through The Land Rights Letter, a

monthly newsletter highlighting legislation, court decisions,

individual accounts of regulatory abuse nationwide, and the

Land Rights Archive -- an extensive reference and research

library.

Oregonians in Action Legal Center (Tigard, OR) is

a nonpartisan, nonprofit, public interest law center involved in

litigation seeking to protect the constitutional rights of

landowners and counter excessive land use regulation. It is

financed entirely through the voluntary contribution of time

and money from individuals, families, businesses and

foundations on a continuing basis. OIA-LC successfully

represented the Petitioner in the United States Supreme Court

case of Dolan v. Tigard, 114 S. Ct. 2309 (1994).

Pennsylvania Landowners’ Association

(Waterford, PA) was formed to educate property owners about

the threat to their property rights and personal freedom posed

by increasingly intrusive regulations on land use, to generate

public debate, and to develop and implement a strategy to

restore reason and balance in environmental regulation --

including regulation in the form of zoning restrictions.

People for the West! Accord Chapter (Phoenix,

AZ) is a grassroots organization created to support western

communities against the overreaching hand of government. Its

membership believes that people who own and depend on the

land make better stewards of the environment, and that

mankind has the ability to solve any legitimate environmental

problems through sound scientific means.

7

Putting People First (Helena, MT) is a nonprofit

organization of citizens who support a return to common sense

in man’s relationship with nature and civility in relation to his

fellow man. They also believe that public policy should be

based on science and rationality, not arbitrary political

motivations.

Small Business Survival Committee (Washington,

DC) is a national, nonprofit, nonpartisan advocacy

organization fighting unchecked government taxation and

regulation of small business -- the entrepreneurial sector of the

United States economy. They believe that this case illustrates

the plight of small business owners and entrepreneurs

nationwide who follow local, state and federal Jaws only to

become entangled in political and bureaucratic red tape where

private property rights have no meaning.

Trans Texas Heritage Association (Alpine, TX) is a

statewide organization dedicated to the protection of landowner

rights. Its members collectively own over fifteen million acres

of land in Texas and other states. Members of TTHA believe

that private property rights are the cornerstone of the freedoms

and liberties protected by the Constitution, and that

environmental regulations and zoning restrictions often

unreasonably limit private property ownership.

Defenders of Property Rights (Washington, DC) is a

nonprofit public interest law foundation and the nation’s only

legal defense foundation devoted exclusively to protecting

private property rights. Its mission is to vigorously protect

those rights considered essential by the Framers of the

8

Constitution, and to promote a better understanding of the

relationship between private property rights and individual

rights and liberty. Defenders of Property Rights engages in

litigation across the country on behalf of its members, who are

owners, users, and beneficiaries of private property, to

prevent government incursion into protections guaranteed by

the Bill of Rights. Defenders devotes a significant portion of

its resources to litigation and has participated in Lucas v.

South Carolina Coastal Council, Dolan v. City of Tigard and

Babbitt v. Sweet Home Chapter Communities for a Great

Oregon when they were before this Court.

STATEMENT OF THE CASE

At issue in this case is the extent to which private property

rights are protected under the Due Process Clause of the Fifth

and Fourteenth Amendments. In recent years, this Court has

done much to resuscitate the previously dormant provision in

the Fifth Amendment requiring payment of just Compensation

for the taking of private property. See, e.g., Lucas v. South

Carolina Coastal Council, 112 S. Ct. 2886 (1987)

(government regulation that destroys all beneficial and

productive use of private property is a per se violation of the

Just Compensation Clause of the Fifth Amendment); First

English Evangelical Lutheran Church of Glendale v. County

of Los Angeles, 482 U.S. 304 (1987) (property owner must

be paid just compensation for even temporary taking of private

property rights).

9

Most recently, in Dolan v. City of Tigard, 114 S. Ct.

2309, 2320 (1994), this Court stated: “We see no reason why

the Takings Clause of the Fifth Amendment, as much a part of

the Bill of Rights as the First Amendment or Fourth

Amendment, should be relegated to the status of a poor

relation.”

However, the Just Compensation Clause cannot be and

was not intended by the framers of the Constitution to be the

sole provider of full protection for private property rights.

Rather, the Constitution contains several provisions designed

to accomplish that purpose together. The Fourth Amendment,

for example, protects against unreasonable searches and

seizures. The Fifth Amendment states that no person shall “be

deprived of life, liberty, or property without due process of

law.” The Fourteenth Amendment echoes the Fifth, stating

that no “state shall deprive any person of life, liberty, or

property without due process of law.”

The Founding Fathers’ intent to protect property rights is

clear. They considered private property ownership critical to a

free society. James Madison, the author of the Bill of Rights,

stated this clearly in Federalist Paper No. 54, when he wrote

“Government is instituted no less for protection of the property

than of the persons of individuals.” However, the modern

crush of government regulations, and the now virtually

unchecked power of government officials over an individual’s

use of his property (even for laudable purposes), is destroying

the genius of the constitutional system of private property

rights.

10

Until recently, this Court has not been called upon to

affirm the protections contained in the Due Process Clause as

applied to questions regarding the constitutionality of decisions

by local officials over local land use. As a result, the court

below was able to sanction an interpretation of the Due

Process Clause that emasculates the notion of due process in

cases such as this. The decision of the court below essentially

gives local government free rein to target -- at will -- any

private property owner for abuse.

Thus, the issue raised by this case is whether the Due

Process Clause will retain its vitality in the face of such a

broadside affront as is presented by the decision below. The

facts of this case are clear. They paint a picture of local

government officials, by virtue of their position and power,

using the local government land use review process to wipe

Out one person’s constitutionally-protected private property

rights. In the early 1960's, the Petitioners, Stubblefield

Construction Company and Stubblefield Properties, purchased

approximately 600 acres of property in San Bernardino

County, California in order to develop an entire master-

planned community, including the 492-unit apartment complex

at issue in this case. The thirty acres designated for the

apartment units were zoned for such construction. In 1968,

the Respondent, the City of San Bernardino, annexed the

property with the assurance that existing zoning would be

maintained. In reliance on that promise, the Petitioners

invested heavily to prepare the property for construction by

developing water, power and sewer connections.

11

In 1986, just when Petitioners thought they were in a

position to gain permission from the Respondent to actually

begin construction of the project, the City Council moved the

goalposts to prevent development of the project. This arbitrary

and abusive behavior by the government in refusing to

approve the Petitioners’ development plans grossly affronts

the due process guaranteed to every property owner under the

Fifth and Fourteenth Amendments.

Instead of providing a fair and indiscriminatory system of

review for land use decisions, the Respondent systematically

used every arrow in its quiver to target and kill the Petitioners’

development plans. In doing so, it failed to state a single

legitimate health, safety, or welfare concern over the project.

Rather, as the trial court found, one specific City Councilman

was a “powerful opponent” of the Petitioners’ development

plans. For example, the City Council adopted an “urgency”

ordinance which allowed it to freeze the Petitioners’ project

until it could change the zoning law to further restrict the

Petitioners’ development plans. The only “urgent” rationale

for the ordinance was that it would prevent the project from

ever being built. In short, public power was used by elected

officials to accomplish personal goals.

After a public hearing, John Stubblefield was told by the

mayor of the San Bernardino that he was not allowed to

testify regarding his proposed project because “(t]he Council

had met [in closed session], they had all made up their mind

that this project was going down to defeat so why talk about

12

it.”! In 1989, the Respondent finally succeeded in killing the

Petitioners’ project by adopting a new General Plan for the

area which downzoned his property so that only four

residential units were permitted.

The pervasive regulatory state existing today, as opposed

to fifty or even twenty years ago, makes it imperative that this

Court establish that government regulation of the reasonable

use of private property, such as that at issue in this case, be

applied fairly and rationally. Federal, state and local laws

affecting private property have -- in the modern regulatory

State -- become an elaborate web of laws and regulations

covering every conceivable aspect of property use and

ownership.

Therefore, the time has come for this Court to end local

tyranny and the cavalier destruction of private property rights.

This Court put it well when it declared over a century ago that

“A government which held the lives, the liberty and the

property of its citizens subject at all times to the absolute

despotism and unlimited control of even the most democratic

dispository of power, is after all but a despotism. It is true it

is a despotism of the many, of the majority, if you choose to

call it so, but it is none the less a despotism.” Loan Assn. v.

Topeka, 87 U.S. (20 Wall.) 655, 662 (1874).

By reversing the opinion of the court below, this Court

will assure all Americans that their property rights cannot be

destroyed at the whim of a local despot.

1 Reporter’s Transcript on Appeal at 2614.

13

REASONS WHY THE PETITION SHOULD BE

GRANTED

ae

THIS CASE RAISES AN ISSUE OF CRITICAL

IMPORTANCE FOR PRIVATE PROPERTY

OWNERS -- WHETHER THE DUE PROCESS

CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS PROTECT PRIVATE PROPERTY

RIGHTS AGAINST ARBITRARY AND ABUSIVE

INFRINGEMENT BY GOVERNMENT.

This Court has long recognized that a landowner has a

constitutional right emanating from the Fifth Amendment “to

devote his land to any legitimate use of property within the

protection of the Constitution.” Washington ex rel Seattle Title

Trust Co. v. Roberge, 278 U.S. 116, 121 (1928). This right

has been buttressed in recent years by several landmark

decisions of this Court applying the Just Compensation Clause

to require governments to pay property owners if a regulation

effects a taking of private property. See, e.g., Lucas, 112 S.

Ct. 2886. This Court continues to affirm that the Just

Compensation Clause specifically entitles a property owner to

make reasonable use of his land: “[T]he right to build on

one’s Own property -- even though its exercise can be subject

to legitimate permitting requirements -- cannot remotely be

999

described as a ‘governmental benefit.’” Nollan v. California

Coastal Commission, 483 U.S. 825, 833 n. 2 (1987).

14

Yet, however efficacious the Just Compensation Clause

may be in deterring burdensome or confiscatory regulations on

private property rights, it has little utility in the face of

government actions that discriminatorily target individual

property owners -- as do challenged actions in this case. Even

the Nollan case, which sets forth the farthest application of the

Just Compensation Clause in this context of challenging the

validity of a confiscatory regulation, only requires that

government actions “substantially advance” their stated

purpose. Nollan does not address the allegations of abuse of

authority in situations where government officials misuse

legitimate laws and the conduct of the government officials is

aimed exclusively at precluding an individual from exercising

his constitutional right to use his property. Nor does this

Court’s recent decision in Dolan, 114 S. Ct. 2309 (exactions

of private property must be “roughly proportional” to the

burden they purport to address), provide relief from the

arbitrary infringement of private property rights presented in

this case.

As this Court has made clear on many occasions, the Just

Compensation Clause is not designed to probe the motivations

of the decision makers.2 Rather, it is a “no-fault” concept that

merely requires payment when government action takes private

2 But see Dolan, 114 S. Ct. at 2319 (local government’s decision to

deny a building permit unless the property owner gave to city

approximately 10 percent of her property violated the Just Compensation

Clause unless the city could show a "rough proportionality between the

impact and the extent of the exaction"); Nollan, 483 U.S. at 3147

(regulation that impacts private property rights must substantially advance

its stated purpose).

15

property. Once established that a taking is for any legitimate

public purpose (and legitimate public purpose is broadly

defined),> and that the taking substantially advances the stated

legitimate public purpose, the only scrutiny under the Just

Compensation Clause is whether and to what extent the

governmental actions impact a private property owner's

reasonable investment-backed expectations. See Penn Central

Transp. Co. v. New York City, 438 U.S. 104, 136 (1978) (if

a zoning law is substantially related to the promotion of the

general welfare then the only takings consideration remaining

is the severity of the law’s interference with the owner’s

property). Whether the government action is wise, virtuous or

even necessary is irrelevant to the constitutional requirement of

just compensation. See Kaiser Aetna v. United States, 444

U.S. 164, 174 (1979) (the fact that Congress had “expansive

authority” to regulate was immaterial to whether or not the

regulation went so far as to effect a taking requiring

compensation); see also United States Trust Co. v. New

Jersey, 431 U.S. 1, 29-30 (1977) (no matter how important

and legitimate the public purpose is for regulation, the court

will not “balance away” constitutional rights).

However, the Due Process Clause is, as the name implies,

specifically designed to probe whether the process by which

property is infringed is fair. See Daniels v. Williams, 474

U.S. 327, 331 (1986) (the purpose of the Due Process Clause

3 See, eg., Hawaii Housing Avihority v. Midkiff, 467 U.S. 229, 240

(1984) (“deference to the iegislature’s ‘public use’ determination is

required ‘until it is shown to be an impossibility,” (citing Old Dominion

Co. v. United States, 269 U.S. 55, 56 (1925)).

16

is to prevent government from abusing its power or employing

it for purposes of oppression). When the process afforded

private property owners is unfair, or when local governments

succumb to private biases or interests, then clearly the Due

Process Clause is implicated. The Due Process Clause, quite

simply, forbids all deprivations of property by governmental

action that is arbitrary, unreasonable or violative of

fundamental principles of fairness. Thus, the issue in a due

process case is not whether the government has the power to

“take” the property, but whether the deprivation of property

has been accomplished in a manner protective of fundamental

individual liberties. In short, due process focuses upon the

method by which land use controls are imposed, while just

compensation examines only the result of the process. To be

valid, both the process and result of a land use restriction must

comport with these separate but related constitutional

protections.

In the present case, it is the misuse of the process that

failed to comply with the constitutional requirement of fairness

and justice. The repeated and consistent maneuvering and

obstructionist conduct of the government officials to halt the

Petitioners’ project for personal reasons is the gravamen of

this due process violation. Indeed, the trial court found that

the Respondent arbitrarily changed its zoning law with an

intention of sabotaging the Petitioners’ development project;

the court of appeals even had to concede that the process

operated as a “vendetta” against the Petitioners.

17

Unfortunately, the facts presented here are not unique.

Local zoning decisions, because of the inherently ad hoc and

discretionary nature of the decision-making process, are often

subject to abuse and unfairness. See generally Rosalie Berger

Levinson, Protection Against Government Abuse of Power:

Has the Court Taken the Substance Out Of Substantive Due

Process, 16:2 U. Dayton L. Rev. 312 (1991). Decisions

regarding the use of one’s property all too frequently are

driven by local politics and the personalities of the people

involved.4 Over recent years the situation has been

exacerbated at the local level due to the increasing number of

federal and state laws granting even greater authority to local

governments with respect to land use decisions. Thus, strong

guidance is needed from this Court to set appropriate standards

whereby government officials can exercise their authority in

accordance with the constitutional requirement of due process.

IT.

THE FAILURE OF THIS COURT TO DEFINE

WHAT PROCESS IS DUE AN INDIVIDUAL WITH

RESPECT TO THE REASONABLE USE OF HIS

4 Take for example the recent case reported in the Wall Street Journal

where a government official voted to deny approval of a requested building

permit on a wholly arbitrary basis, stating: “In my former life as a

seagull, I was flying up and down the California coastline and saw your

house built shaped as a seashell...out of driftwood and feathers.” Stephen

Page, In My Former Life as a Seagull, WALL ST. J., Dec. 27, 1994, at

Al4.

18

PROPERTY HAS LED TO MUCH CONFUSION BY

LOWER COURTS.

‘ihe failure of this Court to articulate definitive standards

that govern arbitrary and capricious government decisions

concerning property rights in the realm of actions prohibited

by the Due Process Clause has led to uncertainty among

litigants and judges among the various circuit courts of

appeals. Indeed, within just the past few months, federal

courts across the nation have wrestled with questions of the

nature and extent of due process protections as applied to local

land use decisions. In DeBlasio v. Zoning Bd. of Adjustment,

53 F.3d 592 (3d Cir. 1995), the United States Court of

Appeals for the Third Circuit adopted a broad test holding that

property ownership per se is entitled to due process protection

under the Fourteenth Amendment. Judge Lewis, writing for

the Third Circuit, held that a due process claim would lie

where the decision limiting land use was arbitrary or irrational.

In contrast, the United States Court of Appeals for the

Sixth Circuit has adopted a more restrictive test holding that a

plaintiff must show not only a property interest but also that he

had a legitimate claim of entitlement to a special use permit or a

justifiable expectation that the city council would issue the

permit before a cause of action would lie under the Due

Process Clause. Triomphe Investors v. City of Northwood,

49 F.3d 198 (6th Cir. 1995). In Triomphe, the court held that

the property owner did not have a “legitimate expectation” to a

special permit, even if the requirements for the permit had been

19

met, because the city ordinance provided that such a permit

“may” be granted; the court reasoned that the word “may”

gave the city council the discretion to refuse to grant the permit

on the basis of any evidence, rather than on substantial

evidence. /d. at 203.

The most restrictive test of all was announced by the

United States Court of Appeals for the Seventh Circuit in Mid-

American Waste Systems v. City of Gary, 49 F.3d 286 (7th

Cir. 1995). In Mid-American, the court held that the corporate

plaintiff did not have a right to challenge the city’s allegedly

arbitrary cancellation of its lease because “(t]he only interest at

stake is the interest in obtaining the maximum return on

investment. This is not a ‘fundamental right.’” Jd. at 291

(citing National Paint & Coatings Ass'n v. Chicago, 45 F.3d

1124, 1129 (7th Cir. 1995)). This statement suggests that a

businessman or certainly a corporation would not have a right

under the due process clause to challenge even an illegal denial

of a zoning variance if its motive was that of profit.>

> The Mid-American decision is constitutionally flawed on its face

because it is discriminatory. The Due Process Clause does not exclude

corporations and business people from its coverage: it makes all property

Owners a protected class. If due process means anything, it means that all

property owners should have access to the courts to remedy due process

violations.

20

CONCLUSION

Strong policy concerns weigh against this Court’s

adopting an expansive interpretation of the Due Process

Clause. Valid concerns of judicial activism, growing out of

the legitimate question of whether courts can objectively define

“arbitrary” or “abusive” governmental conduct, argue against

an open-ended definition of the clause. Nevertheless, the

Constitution states explicitly that individuals shall not be

deprived of “property” without “due process of law.”

However, that is just what happened to the Petitioners in this

case. Moreover, it is what is happening and will continue to

happen across the country unless this Court definitively holds

that the Constitution will not countenance governmental

conduct that unfairly or otherwise arbitrarily infringes private

property rights.

For all of these reasons, the amici curiae strongly urge this

Court to grant the requested Petition for Certiorari.

Respectfully submitted,

Nancie G. Marzulla

President and Chief Legal Counsel

DEFENDERS OF PROPERTY

RIGHTS

6235 33rd St., NW

Washington, DC 20015

(202) 686-4197

September 20, 1995