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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 913

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2111%3A3. Public record. Not legal advice.