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

— ‘

4

STUBBLEFIELD CONSTRUCTION COMPANY

and STUBBLEFIELD PROPERTIES,

Petitioners,

V.

CITY OF SAN BERNARDINO,

Respondent.

y%

vw

Petition for Writ of Certiorari

to the Court of Appeal of California

Fourth Appellate District, Division Two

+.

a

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

La.

v-

*JAMES S. BURLING

VICTOR J. WOLSKI

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation

id Wii

EER TEEPE IES NE cman Br

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED ............ ill

INTEREST OF AMICUS CURIAE ............ l

siAtomen: OF THE CASE .......ccccceces 3

SUMMARY OF ARGUMENT ............... 6

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI ....... ee

I. THIS COURT SHOULD RESOLVE

THE MULTIPLICITY OF CONFLICTS

OVER WHETHER ARBITRARY AND

CAPRICIOUS REGULATION OF

PROPERTY SATISFIES DUE PROCESS ...... 7

A. Are Zoning and Other

Decisions Affecting

the Use and Enjoyment of

Property Immune from a

Substantive Due Process

Attack by Their Very

eee he a gy 6 a kd a ae a 10

B. May Motives and the

Background Circumstances

of Such Decisions Be Probed

by Fact Finders to Decide if

any Purpose (Particularly an

Improper Purpose) Was the

Basis of These Decisions? ........... 12

Page

C. Are Political Concerns

Such as the Demands of

Constituents a Legitimate

Purpose to Support

Restrictions on the Use

and Enjoyment of Private

PONENT osx o SB Ae Ee SE 14

Il. THIS COURT SHOULD RESOLVE

THE CONFLICTS OVER WHETHER

OWNERSHIP OF PROPERTY IS A

SUFFICIENT INTEREST TO RECEIVE

DUE PROCESS PROTECTION ........... 16

CUINCLARMRINS 6 6 Wim 0% Siete eee eee 20

lil

TABLE OF AUTHORITIES CITED

Page

CASES

Agins v. City of Tiburon,

ee 2 a a ar 2,9

Amsden v. Moran, 904 F.2d 748

CG 11

| Anderson v. Douglas County,

Coe Be 2 ES): ) ee 12

Bello v. Walker, 840 F.2d 1124

I a 15

Board of Regents of State

Colleges v. Roth,

a re 19

Brady v. Town of Colchester,

Be & ae ED | 13

Chesterfield Development Corp. v.

City of Chesterfield,

ee ae Bee eee er. TSE) ww ee 12

City of Cleburne v.

Cleburne Living Center,

I ki ds 5 bc es te ee ee 16

City of Eastlake v. Forest

City Enterprises, Inc..,

a a 16

Page

Coniston Corporation v. Village

of Hoffman Estates,

844 F.2d 461 (7th Cir. 1988) ........... 9,11,15

Creative Environments, Inc. v.

Estabrook, 680 F.2d 822

Cp a ERA res ee a nee 11

DeBlasio v. Zoning Board of

Adjustment for the Township

of West Amwell, 53 F.3d 592

(3rd Cir.) petition for cert.

filed, 64 U.S.L.W. 3084

(July 28, 1995) (No. 95-163) .......... 10,13,18

Dolan v. City of Tigard, 512 U.S.

ees 2 ee 2. | ee 2,8-9

Eubank v. City of Richmond,

226 U.S. 1357 (1912) 6. cece eee 16

Fuentes v. Shevin,

er ee ee ND os. on ae oa ee rea 17

Furtado v. Bishop,

Ce ae are Ge, SE POD oo ee ws Bek sc ws 12

Hartland Sportsman’s Club,

Inc. v. Town of Delafield,

poe Ee. fe. ff Ae) ee 11

Lawton v. Steele,

tae Se Be CE sb ss so ee Wi ee ee 8

Page

Lemke v. Cass County,

| 846 F.2d 469 (8th Cir. 1987) .............. 12

Lockary v. Kayfetz,

| Tae? 26 OO Cw. TD oo eee eet 2

Marine One, Inc. v. Manatee

County, 877 F.2d 892

pt gs We er ear are a ear ee ee 18

| Marks v. City of Chesapeake,

Virginia, 883 F.2d 308

Glee ee I a es ele ay Caw ee ee 15

| Moore v. City of East Cleveland,

Gal Ah WTA Ee ec eS eh eee ese 14

Nectow v. City of Cambridge,

| BEF Ca I 8 FR Fe ae 8

| Nollan v. California Coastal

Commission, 483 U.S. 825 (1987) ......... 2,9,19

Pennell v. City of San Jose,

ar ae ee oe eee eee oe Ve ee wee 2

PFZ Properties, Inc. v. Rodriguez,

928 F.2d 28 (1st Cir.), cert.

granted, 502 U.S. 956 (1991), cert.

Gomtaeed, SG3 U.S. 257 CIGFe) ww wc cc ce es 2

Polenz v. Parrott, 883 F.2d 551

Cpe I ee ee te tee 5 we sate ae oe 11

vi

Page

River Park, Inc. v. City of

Highland Park, 23 F.3d 164

PE 5 se a SPO a ok Ve ee ees 18-19

RRI Realty Corp., Inc. v.

Village of Southampton,

Bre 7 .Oe 8s CA Ge TOP es 8 LNA 18

Schaper v. City of Huntsville,

Sar Wee Fa Gee Ge POTD 6 8 vk 8s eee wee 10

Shelton v. City of College

Station, 780 F.2d 475

ee Fe es ee ee eRe 13

Smithfield Concerned Citizens for

Fair Zoning v. Town of Smithfield,

Set Fae Bae ee as SO 4 As o cw bs we 13

State of Washington ex rel.

Seattle Title Trust Co. v. Roberge,

Bee a SO Cee 64 Pk oh CRA were 15-16

Sylvia Development Corp. v.

Calvert County, Maryland,

46 £36 SIU (4) Col. 1995) own cee. 15,18

Triomphe Investors v. City of

Northwood, 49 F.3d 198

ee Sty GE Cao's hath Paes eR an 15,18

United States v. Carolene

Products Co., 304 U.S. 144

SEE a uw ie Waa ee Re ee aa 13

Vi

Page

i

Village of Arlington Heights v.

Metropolitan Housing Development

| Corporation, 429 U.S. 252 (1977) ........... 18

Village of Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926) .......... 5-6,12

Walz v. Town of Smithtown,

me ge oe ae... ra ae 9

'

| Wilkinson v. Leland, 27 U.S.

. pe I alas a a o's 6 9:50 0s 0s ees 17

Williamson County Regional

Planning Commission v.

Hamilton Bank of Johnson

ee ee er telat ae

RULES AND REGULATIONS

CME tae ar rte ce cnn Dia ae eh gag 2

| Le Code ©, Seige ena aaanane 5

UNITED STATES CONSTITUTION

pt Se eae a en eee ee 9

eo tag ee a ha erg eee ee 8

SE FETE ko aoa a 8b ec eo a ee eS 5

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.

+

Petition for Writ of Certiorari

to the Court of Appeal of California

Fourth Appellate District, Division Two

+

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

A.

vy

INTEREST OF AMICUS CURIAE

PLF is a nonprofit, tax-exempt corporation organized

under the laws of the State of California for the purpose of

litigating in the public interest. PLF has nearly 25,000

supporters nationwide. Policy for PLF is set by a Board of

Trustees composed of concerned citizens, many of whom are

2

attorneys. PLF’s Board of Trustees evaluates the merits of

any contemplated legal action and authorizes such legal

action only when the Foundation’s position has broad support

within the general community. PLF’s Board of Trustees has

authorized the filing of an amicus curiae brief in this matter.

Attorneys for PLF have participated in numerous cases

concerning constitutional protections for property rights

before this Court and other courts representing both amicus

curiae and property owners. Many of these cases involved

land use and the Due Process Clause, including Lockary v.

Kayfetz, 908 F.2d 543 (th Cir. 1990), in which PLF

attorneys were counsel of record, and Pennell v. City of

San Jose, 485 U.S. 1 (1988), in which PLF participated as

amicus curiae. PLF also participated as amicus curiae before

this Court in PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28

(1st Cir.), cert. granted, 502 U.S. 956 (1991), cert.

dismissed, 503 U.S. 257 (1992).'

Amicus seeks to augment the argument in the petition

for writ of certiorari. PLF believes that its public policy

perspective and litigation experience in support of property

rights will provide an additional viewpoint with respect to the

constitutional and legal issues presented. Pursuant to

Rule 37.2, written permission from all parties to file this

brief has been lodged with the Clerk of the Court.

r

' PLF has also participated in every major case before this Court

in the last two decades involving land use and the Takings Clause.

For example, PLF attorneys represented the Nollans in Nollan v.

California Coastal Commission, 483 U.S. 825 (1987), and PLF

has participated as amicus curiae in cases from Agins v. City of

Tiburon, 447 U.S. 255 (1980), to Dolan v. City of Tigard,

512 U.S. __, 129 L. Ed. 2d 304 (1994),

3

STATEMENT OF THE CASE

Petitioners Stubblefield Construction Company and

Stubblefield Properties (Stubblefield) own property located

within the limits of respondent City of San Bernardino (City).

Stubblefield’s parcel had been zoned R-3, allowing for

multifamily housing, from the time the property was annexed

by the City in 1968. Stubblefield Construction Co. v. City of

San Bernardino, 32 Cal. App. 4th 687, 696 (1995), Petition

for a Writ of Certiorari (Pet.) at A-6. In May, 1986,

Stubblefield submitted to the City a development application

for a 492 unit apartment project. The zoning at that time

allowed for as many as 638 units on the parcel and,

according to the City’s planning director, the application met

all the requirements then in place. Stubblefield, 32 Cal.

App. 4th at 697 n.4, Pet. at A-7 n.4.

Stubblefield’s application was not approved, however.

It was not approved because of a series of actions taken by

the City to delay final approval until the downzoning of the

parcel reduced the number of units that could be developed

to just four. Jd. at 698, Pet. at A-8-9. On September 10,

1986, the City Council passed an ordinance allowing third

parties to appeal planning department decisions that the lack

of significant impacts would excuse a project from the

requirement of a costly and time-consuming environmental

impact report (EIR). On October 20, 1986, the City adopted

an “urgency ordinance," effective in 30 days, that ended its

policy of processing development applications under the

zoning rules in force when the application was submitted.

Id. at 697, Pet. at A-8. Both of these ordinances were

sponsored by City Councilman Steve Marks, a vocal

opponent of Stubblefield’s project.

Two days later, the City’s R-3 zoning ordinance was

amended to impose a two-story height limit on apartments

and to require a conditional use permit to exceed this limit.

Stubblefield’s project contained three-story apartment

ee ee ee NT ee

4

buildings. /d. To insure that the new R-3 zoning ordinance

would apply to Stubblefield’s project under the urgency

ordinance, Marks delayed final approval of the project by

personally appealing the planning department’s EIR decision,

using the ordinance he had sponsored. Thus, approval was

not received within 30 days of passage of the urgency

ordinance, and the new R-3 zoning requirements controlled

the project. Jd. at 698, Pet. at A-9.

Stubblefield requested that its project be

"grandfathered" so that the project would be evaluated under

the zoning rules in place when the application was submitted.

The City delayed action on this request for over one year.

In the meantime, a moratorium on development was imple-

mented in response to a lawsuit challenging the City’s

general plan. The grandfathering request was denied on

January 19, 1988, at a hearing in which Mr. Stubblefield was

not allowed to speak for petitioners. Five months later the

moratorium was lifted and Stubblefield’s property was

downzoned to allow only four apartment units. Jd. at 699-

700, Pet. at A-10-12.

This pattern of events was more than a run of bad

luck for Stubblefield. A subsequent 10-week, 31-day jury

trial resulted in the accumulation of evidence showing that

a number of the City’s actions were taken for the purpose

of delaying and _ biocking Stubblefield’s project.

Stubblefield, 32 Cal. App. 4th at 714, Pet. at A-35. The

urgency ordinance was justified solely by "the desire to

block approval of the Stubblefield project." Jd. at 698, Pet.

at A-8. The change in the height limit of R-3 structures and

an amendment requiring that structures be compatible with

their neighborhood were also "aimed at the Stubblefield

project." Jd. at 697-98, Pet. at A-7-9.

The jury decided that the City’s actions were not

"performed for a purpose which was substantially related

to the public health, safety, morals or general welfare,” Pet.

EE oe

ee ee ee

5

at A-43, were “motivated with a purpose of intending to

discriminate against Stubblefield," Pet. at A-44, and resulted

in harm to petitioners totaling $11,537,000. Stubblefield,

32 Cal. App. 4th at 694-95, Pet. at A-44-45. On the basis

of these findings, the court entered judgment in petitioners’

favor, determining that the City’s actions violated the Equal

Protection and Due Process Clauses of the Fourteenth

Amendment under 42 U.S.C. § 1983.2 The trial court

denied the City’s motion for judgment, notwithstanding the

verdict, and granted the City’s motion for a new trial on the

damages issue. Id. at 695, Pet. at A-4.

The California Court of Appeal reversed this judgment,

holding that actions taken in response to “concerns of

constituents in the affected area and other political concerns"

are “not, as a matter of law ... arbitrary or irrational."

Stubblefield, 32 Cal. App. 4th at 710-11, Pet. at A-29. Even

the unusual efforts of Marks to defeat the project “merely

represent the democratic process at work." Jd. at 714 n.19,

Pet. at A-36 n.19. The Court of Appeal belittled the case as

"an ordinary dispute between a developer and a

municipality." Jd. at 712, Pet. at A-32. Since the R-3

amendments and the moratorium applied generally, peti-

tioners were not singled out, according to the Court below,

so the actions were at least debatable and, hence, rational.

Stubblefield, 32 Cal. App. 4th at 711-12, Pet. at A-30-32.

Thus, for actions involving property the California

Court of Appeal rejected the traditional test for a Due

Process violation, which defined "clearly arbitrary and

unreasonable” to mean “having no substantial relation to the

public health, safety, morals, or general welfare." Village of

2 A number of other causes of action were dismissed, six before

trial and four after trial. Stubblefield, 32 Cal. App. 4th at 702.

A second lawsuit brought by petitioners challenging the general

plan adopted in June, 1988, has yet to be tried. /d. at 703 n.9.

6

Euclid v. Ambler Realty Co. , 272 U.S. 365, 395 (1926). In

California, political motivations have been deemed just as

legitimate as health and safety. As long as the neighbors

want it, zoning changes restricting the use of private property

are "rational."

a.

-

SUMMARY OF ARGUMENT

Several circuits and the Stubblefield court have adopted

an approach to judicial review of alleged property depriva-

tions that is in conflict with a number of circuits and with

the philosophy and purpose behind the United States

Constitution. Property rights, an explicit portion of the Bill

of Rights and one of the three categories of individual rights

specifically protected under the Due Process Clause, should

not be restricted by clearly arbitrary and _ irrational

government actions. When such restrictions do not relate to

a legitimate purpose of government, they violate due process.

The courts which require some additional injury to constitute

a cognizable constitutional claim, or which rubber stamp

approval for all zoning decisions based on hypothetical

purposes, are departing from the precedents of this Court and

the meaning of the constitutional guarantee of due process.

Courts should ensure that government decisions

restricting the use and enjoyment of private property relate

to a legitimate public purpose. This entails an investigation

of the factual circumstances surrounding that property and

the considerations of the government in its decision-making

process. Proof that land use restrictions were imposed for

either no reason or for an impermissible reason should be

proof that the property owner was treated in arbitrary and

capricious manner. The Stubblefield court was incorrect to

hold that any constituent opposition to a development project

affords a rational basis for land use restrictions. Unless this

opposition is based on legitimate health, safety, morals, or

general welfare concerns; it is not transformed into a rational

7

basis merely by being a part of the political process. The

court below also seriously departed from the Constitution and

from this Court’s precedents in holding that the ownership of

real property does not implicate a property right protected by

due process. Due process includes the guarantee that one’s

property rights will not be interfered with in an arbitrary

manner. The right to use and enjoy ones’ own property is

and has always been at the core of property ownership and

the requirement that one show a "vested right” or

"entitlement" to a particular use does violence to the plain

meaning and historical purpose of the Due Process Clause.

»

vw

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

I

THIS COURT SHOULD RESOLVE THE

MULTIPLICITY OF CONFLICTS OVER WHETHER

ARBITRARY AND CAPRICIOUS REGULATION OF

PROPERTY SATISFIES DUE PROCESS

The Stubblefield case places squarely before this Court

a number of key questions concerning how alleged depriva-

tions of property are to be analyzed under the United States

Constitution. A 31-day jury trial resulted in a jury deter-

mination that a number of respondent’s actions in adopting

zoning ordinances and denying petitioners’ development

applications did not relate to legitimate public health, safety,

morals, or general welfare purposes but instead were aimed

at blocking petitioners’ development. The appellate court

reversed this verdict, on the grounds that political

motivations--the placating of constituents--are rational

purposes for public officials, and that zoning ordinances that

purport to apply generally will always pass rational basis

review. Stubblefield, 32 Cal. App. 4th at 710-11.

8

This Court just last year announced the desire to

rehabilitate the status of property protection under the

Takings Clause from that of a "poor relation” compared to

the other individual rights enumerated in the Bill of Rights.

Dolan v. City of Tigard, 129 L. Ed. 2d at 321. Yet various

of the circuits, as well as the State of California in this case,

give short shrift to property rights when reviewing govern-

ment regulations under the Due Process Clause.

The Due Process Clause guarantees against deprivations

of "life, liberty, or property, without due process of law."

United States Constitution Amendments V, XIV, § 1. Due

process has long been understood to mean more than mere

procedural formalities. Due process embraces the

fundamental concept that certain government decisions must

instead relate to a legitimate end of government and may not

be made for no reason or for a bad reason. See Lawton v.

Steele, 152 U.S. 133, 136-37 (1894); Nectow v. City of

Cambridge, 277 U.S. 183, 188 (1928). This concept is the

essential difference between the rule of law and arbitrary

government, between a government of laws and one of men.

Certain public decisions by their very nature may be

arbitrarily decided--such as the color of the wallpaper in city

hall, the number of members of a board or commission,

maybe even the generally applicable tax rate. But decisions

to restrict the liberty of individuals or their enjoyment of

their property must be justifiable by one of the legitimate

ends of government, the promotion of health, safety, morals,

or general welfare. "Because we said so” might be an

acceptable if somewhat disserving rule for a paternalistic

relationship but has no place in a system of limited govern-

ment designed to protect and defend the rights of free men

and women.

Lower court decisions abound upholding restrictions on

the use of property without regard for the reasons behind

these restrictions. This shabby treatment of property rights

9

under Due Process review is ameliorated somewhat by the

heightened protection for property rights mandated by the

Takings Clause. Thus, regulation of the use and enjoyment

of property must have more than a mere hypothetical connec-

tion with a legitimate end of government--it must in actuality

"substantially advance" such an end. Dolan, 129 L. Ed. 2d

at 316; Nollan v. California Coastal Commission, 483 U.S.

at 834 n.3; Agins v. City of Tiburon, 447 U.S. at 260; .

This Court has thus recognized that the government’s

authority over private property is proper only when it will

further a legitimate goal. If no such goal is furthered, then

government cannot mandate a restriction on the use of

property--unless it decides to condemn that property right.

The Takings Clause, however, is not a substitute for

the protections of the Due Process Clause. The former

guarantees only that Just Compensation be paid for the

property taken, it does not stop government misconduct. The

latter can invalidate the government action and could provide

for the payment of actual damages to compensate for the

personal injury inflicted upon an individual who has been the

subject of unlawful treatment at the hands of the government.

Williamson County Regional Planning Commission vy.

Hamilton Bank of Johnson City, 473 U.S. 172, 197 (1985);

| see also Walz v. Town of Smithtown, 46 F.3d 162, 169-70

(2d Cir. 1995) (emotional distress and pain and suffering

damages recovered for substantive due process violation);

Coniston Corporation v. Village of Hoffman Estates,

844 F.2d 461, 464 (7th Cir. 1988) (injunctive relief and "full

| tort damages” available under Due Process Clause).

Unfortunately, as will be seen below, many courts act

as if the promise of private property protection under the

Takings Clause were grounds to erase the word "property"

from the Due Process Clause. If this situation persists, the

Takings Clause would remain the "poor relation" of the other

explicit guarantees such as those in the First Amendment.

oy on

10

Stubblefield affords this Court the opportunity to correct the

situation and provide firm guidance to the lower courts.

This area of the law has been described as one “not

known for its simplicity." Schaper v. City of Huntsville,

813 F.2d 709, 716 (Sth Cir. 1987). The wide variety of

approaches used by the various courts (and impressively

catalogued in the Petition for Writ of Certiorari) indeed pose

a daunting challenge to practitioners in the field of land use.

Yet the issues can be boiled down to a few simple but

important questions over which the courts are badly split:

Are zoning and other decisions affecting the use and

enjoyment of property immune from a substantive due

process attack by their very nature? May motives and the

background circumstances of such decisions be probed by

fact finders to decide if any purpose (particularly an

improper purpose) was the basis of these decisions? And are

political concerns such as the demands of constituents a

legitimate purpose to support restrictions on the use and

enjoyment of private property?

A. Are Zoning and Other Decisions Affecting

the Use and Enjoyment of Property Immune

from a Substantive Due Process Attack by

Their Very Nature?

The circuits are split in the seriousness with which they

consider zoning challenges under the Due Process Clause.

It appears obligatory that the standard disclaimer that federal

courts are not zoning boards of appeals be invoked’ by

> It is curious that courts do not similarly protest that employment

discrimination cases threaten to turn them into boards of employ-

ment appeals. Cf DeBlasio v. Zoning Board of Adjustment for the

Township of West Amwell, 53 F.3d 592, 601 n.11 (3d Cir.)

(federal courts have not been overrun by plaintiffs denied occupa-

tional licenses), petition for cert. filed, 64 U.S.L.W. 3084

(July 28, 1995) (No. 95-163).

1]

certain circuits, which deride zoning challenges as “run of

the mill," “typical,” “ordinary,” etc.‘

At this extreme end of the range appears to be the view

that zoning laws are the raison d’étre of local government

and are thus immune from serious facial challenge. This

approach stems from a unfortunate philosophical premise that

i government has as its mission the regulation of property

rather than the protection of property rights. The latter

premise would uphold regulations that are intended to prevent

injury to the property rights of citizens by placing reasonable

limits on what others could do. The former premise gives

carte blanche to regulators because regulation is what they

are supposed to do.

Some of the circuits which indulge the land use

regulatory process go so far as to explicitly adopt a double

standard when considering due process challenges to such

decisions. The Seventh Circuit "requires that ‘in addition to

showing that [a zoning] decision was arbitrary and irrational,

the plaintiff must show either a separate constitutional

violation or the inadequacy of state law remedies.’"

Hartland Sportsman’s Club, Inc. v. Town of Delafield,

35 F.3d 1198, 1202 (7th Cir. 1994) (quoting Polenz v.

Parrott, 883 F.2d 551, 558-59 (7th Cir. 1989). In the First

Circuit, “arbitrary and malicious" action or a decision made

in “bad-faith" are not of "constitutional dimension" when the

deprivation alleged is of property. Amsden v. Moran,

904 F.2d 748, 757 (1st Cir. 1990). That circuit requires

conduct that is “shocking or violative of universal standards

of decency" to rise (or, more accurately, sink) to the level of

Ce Ny SRE A, Mia ech tim wt ai SIN

* See, e.g., Creative Environments, Inc. v. Estabrook, 680 F.2d

822, 833 (ist Cir. 1982) ("too typical of the run of the mill

dispute"); Coniston Corp., 844 F.2d at 467 ("garden-variety

zoning dispute"); see also Stubblefield, 32 Cal. App. 4th at 712

("an ordinary dispute").

12

a constitutional claim. Jd. (quoting Furtado v. Bishop,

604 F.2d 80, 95 (Ist Cir. 1979)). The Eighth Circuit

requires that property owners "establish that the government

action complained of is ‘truly irrational,’ that is, ‘something

more than ... arbitrary, capricious, or in violation of state

law." Anderson v. Douglas County, 4 F.3d 574, 577

(8th Cir. 1993) (citing Chesterfield Development Corp. v.

City of Chesterfield, 963 F.2d 1102 (8th Cir. 1992) (quoting

Lemke v. Cass County, 846 F.2d 469, 470-72 (8th Cir. 1987)

(en banc) (Arnold, J., concurring)).

The Stubblefield court adopted the First Circuit’s

“shocks the conscience" standard for “substantive due

process in the land use context." Stubblefield, 32 Cal. App.

4th at 709-10, Pet. at A-28-29. The conflict between this

approach and the traditional “no substantial relation" Euclid

standard used by this Court and most circuits, Pet. at 14-15,

should be resolved by granting the petition for writ of

certiorari.

B. May Motives and the Background Circumstances of

Such Decisions Be Probed by Fact Finders to Decide

if any Purpose (Particularly an Improper Purpose)

Was the Basis of These Decisions?

If government is not given a free pass in zoning

decisions, then the Court should announce just how lower

courts are to determine if zoning decisions--both the passage

of legislation and the adjudication of permit applications--are

"clearly arbitrary and irrational." Must there be a stated

purpose for the decision? Is a stated purpose taken at face

value, or should the court look to see if in actuality it is a

"pig in the parlor." See Euclid, 272 U.S. at 388 (consider

restrictions "in connection with the circumstances and the

locality"). If a stated purpose is not required, and is not

present, will the court hypothesize a conceivable justification,

or will it attempt to determine the actual motivation? And if

a legitimate purpose could be fabricated by a court, but the

ee Ee ee Oe

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13

evidence shows either that the decision makers did not bother

themselves with a purpose or had a bad, impermissible

purpose in mind, is the decision arbitrary?

There is a variety of approaches to this question taken

by the circuits. Some have held that an improper motive or

the absence of a proper purpose is a question of fact for a

jury. See, e.g., DeBlasio, 53 F.3d at 601-02; Brady v. Town

of Colchester, 863 F.2d 205, 215-16 (2d Cir. 1988) (for trier

of fact to decide if rational basis exists). Others deny juries

the opportunity to determine the actual motives of the

decision makers, and will uphold zoning decisions on the

basis of any conceivable relationship between a hypothesized

legitimate purpose and the challenged zoning decision. See

Smithfield Concerned Citizens for Fair Zoning v. Town of

Smithfield, 907 F.2d 239, 244-46 (1st Cir. 1990); Shelton v.

City of College Station, 780 F.2d 475, 482-84 (Sth Cir.

1986) (en banc) (zoning decisions will be reviewed by

looking for a, rather than the, basis).

This Court’s past decisions should not require an

extremely deferential version of rational basis review of

zoning decisions. The famous Carolene Products footnote

begins, "[t]here may be narrower scope for operation of the

presumption of constitutionality when legislation appears on

its face to be within a specific prohibition of the Constitution,

such as those of the first ten amendments." United States v.

Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)

(emphasis added). Unless protection of real property

ownership remains a “poor relation" of the rest of the Bill

of Rights, this “narrower scope" should be employed in

evaluating laws that regulate real property usage, as opposed

to the economic and social legislation for the workplace.

This Court has, on occasion, refused to defer to the

legislative judgment behind a zoning ordinance and found a

14

due process violation despite some’ connection between the

ordinance and legitimate purposes. Moore v. City of East

Cleveland, 431 U.S. 494, 500 (1977) (ordinance prohibited

members of extended family from living with grandmother).

In Moore, the plurality cast the issue in terms of a “liberty”

interest implicating the "institution of the family," id. at 502-

04, but Justice Stevens posed the "critical question" as

whether the ordinance “is a permissible restriction on

appellant’s right to use her own property as she sees fit."

Moore, 431 U.S. at 513 (Stevens. J., concurring in the

judgment) (emphasis added).

This Court’s reluctance to accept uncritically the

government’s explanation for a zoning ordinance, finding the

ordinance unconstitutional despite the presence of a relation-

ship to legitimate purposes, could become the model for

evaluating alleged arbitrary treatment of real property usage.

Stubblefield presents this Court with an unusual opportunity

to resolve the Circuit conflicts on this issue in a manner that

addresses both the role of the fact finder and of the court

and, if necessary, the difference between review of

legislation (the zoning amendments) and its administration

(the denials of development and grandfathering permits).

C. Are Political Concerns Such as the

Demands of Constituents a Legitimate

Purpose to Support Restrictions on the

Use and Enjoyment of Private Property?

If courts are to scrutinize the purpose behind zoning

decisions, they will need direction concerning which

purposes are legitimate. Does "public health, safety, morals,

or general welfare" encompass decisions to restrict the use of

people’s property at the request of their neighbors? See

5 Albeit this relation was deemed “marginal[!" and "tenuous."

Moore, 431 U.S. at 499-500.

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15

Stubblefield, 32 Cal. App. 4th at 697 (opponent was "merely

reflecting the concerns of his constituents").

In one sense, it is certainly not “irrational” for elected

officials to make decisions on the basis of the views of their

constituents--just as it similarly would be "rational" to do

special favors for big campaign contributcrs. But to burden

the liberty of individuals, or to restrict their enjoyment of the

property they own, requires a legitimate public purpose. The

fact that you are outnumbered in the community or failed to

give as much money to elected officials as other members of

the community should not have any bearing on your enjoy-

ment of your rights. Yet, some Circuits have allowed the

clamor of the crowd to dictate such decisions. See Triomphe

Investors v. City of Northwood, 49 F.3d 198, 202 (6th Cir.

1995) (neighbors concern over effect on property values

reasonable basis for denying permit); Coniston Corp.,

844 F.2d at 467 ("nothing is more common in zoning

disputes than selfish opposition to zoning changes. The

Constitution does not forbid government to yield to such

opposition"). Other circuits have considered such political

motivations to be arbitrary and improper. See Marks v. City

of Chesapeake, Virginia, 883 F.2d 308, 309 (4th Cir. 1989)

(residents objected to permit for fortune teller);° Bello v.

Walker, 840 F.2d 1124, 1129 (3d Cir. 1988) (evidence that

city councilmen opposed project for "partisan political or

personal reasons").

This Court has held that it is a due process violation for

the government to delegate to a property owner’s neighbors

the power to regulate that person’s land. State of Washington

° Cf. Sylvia Development Corp. v. Calvert County, Maryland,

48 F.3d 810, 828 (4th Cir. 1995) ("[e]ven if ... appeasing the

public was the only purpose behind the Board’s action," decision

had rational basis because the citizens expressed legitimate traffic

safety and water supply concerns”).

16

ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,

121-23 (1928) (law requiring written consent of neighbors

ownirg two-thirds of nearby property was a “delegation of

power ... repugnant to the due process clause;" neighbors

would have been "free to withhold consent for selfish reasons

or arbitrarily, and may subject the [property owner] to their

will or caprice"); Eubank v. City of Richmond, 226 U.S.

137, 143-44 (1912) (power to request establishment of

building line without reviewable standards was Due Process

violation; neighbors could invoke ordinance “solely for their

own interest, or even capriciously"). These cases were not

upset by this Court’s subsequent decision in City of

Eastlake v. Forest City Enterprises, Inc. , 426 U.S. 668, 677-

78 (1976), which pointed out the difference between a

referendum of the entire voting public and "standardless

delegation of power to a limited group of property owners."

If one’s neighbors cannot be given the power to decide

one’s land use, these neighbors’ opposition to a proposed

use, without more, should not supply the grounds for a

rational basis. See City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 448 (1985) (under rational basis equal

protection review, neighbors’ “mere negative attitudes, or

fear, unsubstantiated by factors which are properly

cognizable in a zoning proceeding, are not permissible

bases") (emphasis added). This Court should grant the

petition for writ of certiorari to settle this conflict over

permissible purposes for land use regulations.

Ii

THIS COURT SHOULD RESOLVE THE

CONFLICTS OVER WHETHER OWNERSHIP

OF PROPERTY IS A SUFFICIENT INTEREST

TO RECEIVE DUE PROCESS PROTECTION

The Stubblefield court also adopted the notion that

ownership of private property does not involve a property

interest protectible by the Due Process Clause. This bizarre

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17

decision cannot be shrugged off as an anomaly, as several

Circuit Courts of Appeals have also rejected the basic idea

that ownership of property entails use and enjoyment of that

property. These courts look instead for a "vested right" or

“entitlement” to a particular permit in order for Due Process

protections to be triggered.

This question should have been settled long ago. In

1829, speaking through Justice Story, this Court held that the

American Revolution settled it, resulting in a government for

which it would be repugnant to its very nature that "the

rights of property are left solely dependent upon the will of

a legislative body without restraint." Wilkinson v. Leland,

27 U.S. (2 Pet.) 627, 657 (1829). The Wilkinson Court

declared, "[t]he fundamental maxims of a free government

seem to require that the rights of personal liberty and private

property should be held sacred," id., and stressed "the right

of the citizens to the free enjoyment of their property

lawfully acquired." Wilkinson, 27 U.S. (2 Pet.) at 657-58.

The passage of the years has not undermined recogni-

tion of the fundamental basis of property ownership in the

American political system. For example, in discussing the

importance of procedural due process to reduce the likelihood

of substantively unfair treatment of property owners, this

Court explained, "the prohibition against the deprivation of

property without due process of law reflects the high value,

embedded in our constitutional and political history, that we

place on a person’s right to enjoy what is his, free of

governmental interference." Fuentes v. Shevin, 407 U.S. 67,

81 (1972) (emphasis added).

One would think it obvious that fundamental to the

ownership of property is the use and enjoyment of that

property, and that restrictions on such use would definitely

implicate the Due Process Clause. But the Stubblefield court

instead adopted the view that a property owner challenging

the denial of a development permit must have a "vested

18

right" under state law--the right to receive that permit--in

order to assert a Due Process claim. Stubblefield, 32 Cal.

App. 4th at 707-08. Unless one can demonstrate an entitle-

ment under state law to erect a certain building, one cannot

complain about the government’s refusal to allow it to be

built.

A similar approach is taken by a number of federal

Courts of Appeals. The Second, Fourth, Sixth, and Eleventh

Circuits all require the showing of the right to receive

permission for a particular use of property in order to make

out a Due Process claim.’ There is a sharp conflict between

the circuits on this issue, as several Courts of Appeals have

recognized that it is basic to ownership of property that one

receive due process of law when use is restricted. See, e.g.,

DeBlasio, 53 F.3d at 601 ("one would be hard-pressed to

find a property interest more worthy of substantive due

process protection than ownership"); River Park, Inc. v. City

of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994) ("An

owner may build on its land; that is an ordinary element of

a property interest."). See also Village of Arlington

Heights v. Metropolitan Housing Development Corporation,

429 U.S. 252, 263 (1977) (purchaser’s "right to be free of

arbitrary or irrational zoning actions").

The circuits that do not consider property to be

property protected by the Due Process Clause have relied on

7 RRI Realty Corp., Inc. v. Village of Southampton, 870 F.2d

911, 917-18 (2d Cir. 1989) (must show no discretion in issuance

of permit, or that issuance is "virtually assured" if under "narrowly

circumscribed" discretion); Sylvia Development, 48 F.3d at 826

(must establish “legitimate claim of entitlement"); Triomphe

Investors, 49 F.3d at 202 (need “legitimate claim of entitlement"

to permit or "justifiable expectation” it would be issued); Marine

One, Inc. v. Manatee County, 877 F.2d 892, 894-95 (11th Cir.

1989) (property owner lacked “vested right” to permit).

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19

this Court’s decision in Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972). But Roth merely held that

a "legitimate claim of entitlement" to a “benefit,” in that case

a nontenured teaching position, was needed to trigger certain

procedural protections. Jd. Roth was broadening the class

of claims that come under Due Process protection, not con-

tracting them, by recognizing that "property interests pro-

tected by procedural due process extend well beyond actual

ownership of real estate, chattels, or money." Roth,

408 U.S. at 571-72. It is incredible that Roth could be read

to mean that land ownership is not protected by due process.

This approach misapprehends what is at stake in due

process land use claims. Unlike a professor seeking

continued employment, property owners are not claiming the

right to a government-established benefit when they seek to

make use of their property. Nollan, 483 U.S. at 833 n.2

("the right to build on one’s own property--even though its

exercise can be _ subjected to legitimate permitting

requirements--cannot remotely be described as a

‘governmental benefit’"). One of the defining characteristics

of property ownership is that the owners get to use their

land. The permit process does not confer any benefits or

rights upon the successful applicants. To the contrary, this

process restricts existing rights to ensure that uses of

property do not impair the rights of others. It is a process

that protects rights, rather than confers them.'

—~—

* See River Park, 23 F.3d at 166. “Zoning classifications are not

the measure of the property interest but are legal restrictions on the

use of property. ... Licenses, permits, ... and classifications are

important to owners because they reflect governmental promises

not to interfere with private uses of property, but let us not confuse

a decision not to intervene with the property itself."

20

CONCLUSION

In order to ensure that property rights are not treated as

a “poor relation" of the rest of the rights guaranteed in the

Bill of Rights, property owners’ claims based on due process

protections against arbitrary and irrational government

actions must be given meaningful review by the courts. In

Stubblefield, the California Court of Appeal refused to accept

that a violation of due process could be found based on a

jury’s finding that a number of land regulation activities--

including both zoning ordinance amendments and develop-

ment applications--did not substantially relate to any public

health, safety, morals, or general welfare purposes. The

court below accepted these actions as politics as usual and

found that a city councilman’s personal vendetta against a

landowner and its proposed development was justified by the

opposition to the development on the part of the elected

official’s constituents. The court also held that real property

ownership alone, without the right to a government-created

"entitlement" to a particular usage, does not implicate

property rights protectible under the Due Process Clause.

In order to settle a large number of conflicts between

the circuits on the important issues relating to due process

protection of property, amicus respectfully requests that this

Court grant the petition for writ of certiorari.

DATED: September, 1995.

Respectfully submitted,

*JAMES S. BURLING

VicTOR J. WOLSKI

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation