Amicus Curiae Brief — Clark v. City of Hermosa Beach

Supreme Court, U.S.

2 & D

Y MAR 12 1997

y

: CLERK

No. 96-1278

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

DOUGLAS A. CLARK AND CHERYL CLARK

v Petitioners,

CITY OF HERMOSA BEACH and CITY COUNCIL

OF THE CITY OF HERMOSA BEACH

Respondent.

On Petition For A Writ Of Certiorari

To The Court Of Appeal Of California

Second Appellate District, Division One

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AND THE BUILDING INDUSTRY

LEGAL DEFENSE FOUNDATION AS AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

Mary V. DiCrescenzo Kenneth B. Biey*

THE NATIONAL ASSOCIATION COX, CASTLE & NICHOLSON, LLP

OF HOME BUILDERS 2049 Century Park East, 28th Floor

1201 15th Street, NW Los Angeles, CA 90067

j DC 20005 (310) 284-2231

(202) 822-0359 *Counsel of Record

Nick Cammarota Attomeys for Amici Curiae

THE BUILDING INDUSTRY LEGAL ‘ThE NATIONAL ASSOCIATION OF

DEFENSE FOUNDATION HOME BUILDERS and THE

1330 — ne 4 pan Drive BUILDING INDUSTRY LEGAL

—>—~ 3 DEFENSE FOUNDATION

et

Ag 0 ee |

I.

Il.

IV.

i

TABLE OF CONTENTS

THE INTERESTS OF THE AMICI CURIAE

ARISE FROM THEIR MEMBERS’ CONCERNS

AS TO HEIR ABILITY TO OBTAIN JUDICIAL

REVIEW OF ACTIONS WHICH INVOLVE THE

et A ee

THERE ARE MASSIVE CONFLICTS

BETWEEN FEDERAL AND STATE COURTS ..

A. There Are Conflicts Between Different

Federal Circuits As To When A Protected

Interest Exists In the Land Use Context

B. A Number Of State Courts Are Now

Applying The “Legitimate Claim Of

SO

ow Federal And State Courts Are In Conflict As

To What Constitutes The Proper Standard

NS ree, ener ee nee

ONLY THIS COURT CAN RESOLVE THE

CONFLICTS AMONGST FEDERAL CIRCUITS

foe es.) a ae

EE RES Le

ig

TABLE OF AUTHORITIES

Page(s)

CASES

Acierno v. Cloutier,

et tk Lf | | ee es 5,7

Agins v. City of Tiburon,

ee Se SD hale Ww bdw'ewddbececoeecson. 2

Anselma Station, Ltd. v. Penoni Associates, Inc.,

654 A.2d 608 (Pa.Cmwith 1995).............. tier te 9, 10

Bakken v. City of Counsel Bluffs,

470 N.W.2d 34 (Iowa 1991) ..................... 7

Bartlett v. Cinemark U.S.A., Inc.,

908 S.W.2d 229 (Tex.App. 1995) ................. 7

Bateson v. Geisse,

857 F.2d 1300 (9th Cir. 1988) ................... 6

Biser v. Town of Bel Air,

991 F.2d 100 (4th Cir.), cert. denied, 510 U.S. 864

GOD cas eeksésseress okedtetee 6

Blanche Road Corp. v. Bensalem Township,

57 F.3d 253 (3d Cir.), cert. denied,—U.S.—, 116 S.Ct.

rc On ee ean AT 5,7

Boulder City v. Cinnamon Hills Associates,

110 Nev. 238, 871 P2d 830 (1994) ................ 8

Braxton v. United States,

rrr Sera 4

Chesapeake & O.R.R. v. Martin,

SE 5's So's ho ob cee oe 10

City of Buford v. Ward,

212 Ga.App. 752, 443 S.E.2d 279 (1994)............ 8

Crowley v. Courville,

PO OS 47 CAB Cie. 998)... on cc cccccccceec 5

Dean Tarry Corp. v. Friedlander,

826 F.2d 210 ( (2d a are 6

DeBlasio v. Zoning Board of Adjustment,

53 F.3d 592 (3d Cir.), cert. denied,—U.S.—, 116 S.Ct.

SO TED 050 6 050 ved desde tease A

ili

Page(s)

CASES (Continued)

Dolan v. City of Tigard,

i eo 2

Electro-Tech, Inc. v. H.F. Campbell Co.,

433 Mich. 57, 445 N.W.2d 61 (1989), cert. denied, 493

CE 8

Fairmont Township Board of Supervisors v. Beardmore,

ES ee 8

Gagliardi v. Village of Pawling,

| 6

Gardner v. City of Baltimore,

ES 6

Generali v. D'Amico,

_ WOO Tiae 465 (1th Cyr. 1985) ................... 9G

Harms v. County of Riverside,

wee Tae 457 (eb Cir. 1990): .. wc eee 5, 6, 8

Henneford v. Silas Mason Co., ,

I 4

Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence,

927 F2d 1111 (10th Cir. 1991)..................., 6, 9

Kelley Property Development, Inc. v. Town of Lebanon,

226 Conn. 314, 627 A.2d 909 (1993) .............. 8

L.M. Everhart Construction, Inc. v. Jefferson County

Planning Commission, 2 F.3d 48 (4th Cir. 1993) ...... 6

Lutheran Day Care v. Snohomish County,

119 Wash.2d 91, 829 P.2d 746 (1992) .............. 7

MacDonald, Sommer & Frates v. Yolo County,

a ioe 6 oo 0k as.nceeae 2

Moongate Water Co., Inc. v. State, 7

120 N.M. 399, 902 P2d 554 (1995)................ 7,9

Nollan v. California Coastal Commission,

PE oon nova w ac vccccccceccccces 2

Norton v. Village of Corrales,

Bee Wise mee cee Cr, 1995) .. kw et ee 3 44

Orange Lake Associates, Inc. v. Kirkpatrick,

Se We SM GUE. BOO oo oon n sonic cose ccewns 5

Parks v. Watson,

716 F.2d 646 (9th Cir. 1983) .................... 6

iv

CASES (Continued)

Polenz v. Parrott,

ge Bee Be Re. re renee

Riverpark, Inc. v. City of Highland Park,

ps Bf ee eee See

Riverview Investments, Inc. v. Ottawa Community

Improvement Corp.,

eo | ke ae orn ery err ee rrr

Rivkin v. Dover Township Rent Leveling Board,

143 N.J. 352, 671 A.2d 567, cert. denied,—U.S.—, 117

Re cep re ae ae oe

Rohr Aircraft Corp. v. County of San Diego,

31 CaLae Toe, 396 Fad S21 (1999)... ww eee

Rosenfeld v. Board of Health,

27 Mass.App.Ct. 621, 541 N.E.2d 375 (1989) ........

RRI Realty Corp. v. Incorporated Village of Southampton,

870 F.2d 911 (2d Cir.), cert. denied, 493 U.S. 893

CE en ele k PETE SEU ESL ES UREN Pe ORS se ccs

San Diego Gas & Electric Co. v. City of San Diego,

ie tte tora, th ong) MERE EM TREES PETE eee

Security Management Corp. v. Baltimore County,

104 Md.App. 234, 655 A.2d 1326, cert. denied,—U.S.—,

BOD ae WET AE bere few se heres hs cies ve

Seguin v. City of Sterling Heights,

ee We WO, ob 5 + one sce snaence

Silver v. Franklin Township Board of Zoning Appeals,

Pe BE GD nc ons ic swan evccwes

Spence v. Zimmerman,

O7o Woge woe (eee Ge. FONE) 8 ic cect esccces

State of Washington ex rel Seattle Title Trust Co. v. Roberge,

Re et re ae ea ee ae

Sundheim v. Board of County Commissioners,

904 P.2d 1337 (Colo.App. 1995), aff’d, 926 P2d 545

CU I OW aes rh a eto ok oa 4 bcs dn wo

Sylvia Development Corp. v. Calvert County,

Te Teme Gee, BUD ov ce ccc cdc cincdvece

Town of Orangetown v. Magee,

88 N.Y.2d 41, 665 N.E.2d 1061, 643 N.Y.S.2d 21 (1996)

Page(s)

Page(s)

CASES (Continued)

Triomphe Investors v. City of Northwood,

49 F3d 198 (6th Cir.), cert. denied,—U.S.—, 116 S.Ct.

MS Ca cA T RENTS Fes CA R6 RS ORK RCR ARE OE 5

Villager Pond, Inc. v. Town of Darien,

, re ee ie ha ine edo 6 0.9 oe hae 5

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) .............. 2

Yale Auto Parts v. Johnson,

Foe We Oe EE eek ck ck cuca wece ves 6

Zahra v. Town of Southold,

Oe ee ee se BN 6 5 ve cscs ck seceevans Ǥ

CONSTITUTION

Fourteenth Amendment, Art.I.............-..008. 4

RULES OF COURT

Rule 10 of the Rules of the Supreme Court of the United

ei Fy ETA eC Le 4 WAG ks Um Me oR EE RS, OS oe 4

TREATISES

21 CJS, Courts, § 158, Decisions of United States Courts

os FopenGemts im Gate Cowmst... i ccccccccnsccscs 10

MISCELLANEOUS

Black’s Law Dictionary, 1218 (6th ed. 1990) .......... 4

Pd) oe NE ees eee ol

=: os

Ae | *

ee ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1278

DOUGLAS A. CLARK AND CHERYL CLARK

Petitioners,

v.

CITY OF HERMOSA BEACH AND CITY COUNCIL

OF THE CITY OF HERMOSA BEACH

Respondent,

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AND THE BUILDING INDUSTRY

LEGAL DEFENSE FOUNDATION AS AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

The National Association of Home Builders (“NAHB”) and

the Building Industry Legal Defense (“BILD”) Foundation

have received the parties’ written consent to file this brief as

amici curiae in support of the petitioner and have filed the

letters of consent with the Clerk of the Court.

2

I, THE INTERESTS OF THE AMICI CURIAE

ARISE FROM THEIR MEMBERS’ CONCERNS AS TO

THEIR ABILITY TO O#TAIN JUDICIAL REVIEW

OF ACTIONS WHICH INVOLVE THE USE OF LAND

The NAHB represents over 190,000 builder and associate

members throughout the United States. Its members include

people and firms that construct and supply single family homes

as well as apartment, condominium, commercial and industrial

builders, land developers, and remodelers. It is the voice of the

American shelter industry. It is, therefore, concerned with any

judicial decision that calls into question the right of its members

to use their land and, when their right to use land is unduly

interfered with by local governmental actions, to seek judicial

review of those actions.

The NAHB has been before the Court as an amicus curiae

or as “of counsel” to the property owner in a number of cases

involving the rights of landowners to use their property and the

remedy to be applied when those rights are interfered with.

These include Agins v. City of Tiburon, 447 U.S. 255 (1980), San

Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621

(1981), Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985), MacDonald, Sommer &

Frates v. Yolo County, 477 U.S. 340 (1986), Nollan v. California

Coastal_ Commission, 483 U.S. 825 (1987)!, and Dolan v. City of

Tigard, 512 U.S. 374 (1994).

The BILD Foundation is a wholly owned subsidiary of the

Building Industry Association of Southern California, a constit-

uent part of the NAHB, whose 1,400 members include a signifi-

cant number of residential developers and associate businesses

that take part in building 70% of all new residential units

annually in the Southern California region.

' The Court’s opinion cited the NAHB’s brief. 483 U.S. at 840.

3

The amici curiae submit their amici curiae brief in support

of the petitioners in the present case in order to assist the Court

in determining whether to grant its writ of certiorari to deter-

mine if the property protected by the Fifth and Fourteenth

Amendments to the Federal Constitution inheres in the owner-

ship of land or if, as asserted by several of the federal circuits

and the state courts which have begun to follow those circuits,

the existence of a protected property right in the use of land

exists only when government has no discretion with respect to

that use.

Il. SUMMARY OF THE ARGUMENT

The federal and state courts are in massive conflict as to

whether an owner of land—real property—who seeks govern-

mental approval for the use of that land has a property interest

protected by the Due Process Clause of the Fourteenth Amend-

ment as a result of that ownership or whether a protectable

property interest arises only when the governmental agency

involved has no discretion with respect to granting the approval

sought. This is an important question because, if a landowner

has no protected property interest, he or she has no constitu-

tional right to notice or hearing, fair procedures, nor substan-

tively reasonable decisions, i.e., decisions which are not arbi-

trary or capricious. Even where courts have found the existence

of the requisite property interest, there is disagreement

amongst federal and state courts as to what level of review—

how arbitrary or capricious the governmental action can be—

the landowner is entitled to.

This Court, and this Court alone, can answer the questions

of federal law presented by the petitioners because the federal

courts of one circuit are not bound to follow the decisions of

those in another and state courts are not bound to follow those

of any lower federal court. Thus, until this Court speaks, the

result of any attempt by a landowner to seek relief for a claimed

violation of the Due Process Clause will turn on the fortuity of

4

where the land is located and whether the landowner’s lawyer

files in state or federal court. This is no way to interpret a

provision of the United States Constitution.

|

| Ill. THERE ARE MASSIVE CONFLICTS BETWEEN

FEDERAL AND STATE COURTS —

Article I of the Fourteenth Amendment prohibits the

States from depriving anyone of property without due process

of law. This Court has held that the use of land is an aspect of

property. Henneford v. Silas Mason Co., 300 U.S. 577, 582

(1937). The ownership of land, a term synonymous with real

property, see, the definition of real property given in Black’s

Law Dictionary, 1218 (6th ed. 1990), with its concomitant right

of use, would appear to be precisely the type of property

interest protected by the Fourteenth Amendment. This Court

has said precisely that:

“The right of the [landowner] to devote its land to any

legitimate use is property within the protection of the

Constitution.” State of Washington ex rel. Seattle Title

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

Nevertheless, many federal and state courts have adopted

a rule of interpretation which holds that there is no property

interest in the land use context protected by the Due Process

Clause as long as the governmental agency responsible for

granting a land use approval has any discretion in the granting

or conditioning of that approval.

One of the primary purposes for which this Court uses its

certiorari jurisdiction is to resolve conflicts amongst federal and

state courts. Braxton v. United States, 500 U.S. 344, 347 (1991),

and Rule 10 of the Rules of the Supreme Court of the United

States. It is hard to conceive of a situation where the conflict

amongst federal and state courts could be more widespread

than that found in the land use context as presented by the

current petition for certiorari.

5

A. There Are Conflicts Between Different Federal Circuits As

To When A Protected Property Interest Exists In The Land Use

Context.

A number of decisions from several circuits have held that

the property interest protected by the Fourteenth Amendment

inheres in the ownership of land and the right to its use subject,

of course, to reasonable regulation. Blanche Road Corp. v.

Bensalem Township, 57 F3d 253, 268 n.15 (3d Cir.), cert.

denied,—U.S.—, 116 S.Ct. 303 (1995); DeBlasio v. Zoning

Board of Adjustment, 53 F.3d 592, 600-601 (3d Cir.), cert.

denied,—U.S.—, 116 S.Ct. 352 (1995); Riverpark, Inc. v. City of

Highland Park, 23 F.3d 164, 165-166 (7th Cir. 1994); Polenz v.

Parrott, 883 F.2d 551, 556 (7th Cir. 1989); and Harris v. County of

Riverside, 904 F.2d 497, 503 (9th Cir. 1990) (citing and quoting

from State of Washington ex rel Seattle Title Trust Co. v. Roberge,

278 U.S. 116 (1928)).

On the other hand, there are a number of cases from a

number of other circuits which have held that a property inter-

est arises in the land use context only where the governmental

body responsible for approving the desired land use has no

discretion; that is, where the landowner has shown a “legitimate

claim of entitlement” as opposed to a “mere expectancy.”

These cases stand for the proposition that the Due Process

Clause does not apply in the land use context and that the

landowner must look elsewhere—to state law—for protection

against actions taken without notice or hearing, pursuant to

unfair procedures, or, substantively, in an arbitrary and capri-

cious manner. Norton v. Village of Corrales, 103 E3d 928,

931-932 (10th Cir. 1996); Crowley v. Courville, 76 F.3d 47, 51-52

(2d Cir. 1996); Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,

378-379 (2d Cir. 1995); Triomphe Investors v. City of Northwood,

49 F.3d 198, 201-203 (6th Cir.), cert. denied,—U.S.—, 116 S.Ct.

70 (1995); Sylvia Development Corp. v. Calvert County, 48 F.3d

810, 825-828 (4th Cir. 1995); Zahra v. Town of Southold, 48 F.3d

674, 679-682 (2d Cir. 1995); Acierno v. Cloutier, 40 F.3d 597, 616

(3d Cir. 1994); Orange Lake Associates, Inc. v. Kirkpatrick, 21

6

F3d 1214, 1224-1225 (2d Cir. 1994); Gagliardi v. Village of

Pawling, 18 F.3d 188, 191-193 (2d Cir. 1994); L.M. Everhart

Construction, Inc. v. Jefferson County Planning Commission, 2

F.3d 48, 51-52 (4th Cir. 1993); Biser v. Town of Bel Air, 991 F.2d

100, 103-104 (4th Cir.), cert. denied, 510 U.S. 864 (1993);

Gardner v. City of Baltimore, 969 F.2d 63, 68-69 (4th Cir. 1992);

Seguin v. City of Sterling Heights, 968 F.2d 584, 590-592 (6th Cir.

1992); Silver v. Franklin Township Board of Zoning Appeals, 966

F.2d 1031, 1036 (6th Cir. 1992); Jacobs, Visconsi & Jacobs, Co. v.

City of Lawrence, 927 F.2d 1111, 1115-1118 (10th Cir. 1991);

Spence v. Zimmerman, 873 F.2d 256, 258-259 (11th Cir. 1989);

RRI Realty Corp. v. Incorporated Village of Southampton, 870

F.2d 911, 914-918 (2d Cir.), cert. denied, 493 U.S. 893 (1989)?;

Bateson v. Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988); Dean

Tarry Corp. v. Friedlander, 826 F.2d 210, 212-213 (2d Cir. 1987);

Yale Auto Parts v. Johnson, 758 F.2d 54, 57-60 (2d Cir. 1985);

Riverview Investments, Inc. v. Ottawa Community Improvement

Corp., 769 F.2d 324, 327 (6th Cir. 1985); and Parks v. Watson,

716 F.2d 646, 655-657 (9th Cir. 1983).

It should also be noted that there are differences amongst

the appellate panels in a single circuit and sometimes even in a

single case. Thus, the Ninth Circuit has come down squarely on

both sides of the question, holding that the property interest

was in the ownership of land for the purposes of analyzing a

procedural due process claim in Harris v. County of Riverside,

supra, after looking at the existence of a “legitimate claim of

entitlement” when analyzing a procedural due process claim in

Parks v. Watson, supra. Further, in Bateson v. Geisse, supra, the

Court of Appeals found a substantive due process violation

without analyzing the property interest involved, 857 F.2d at

1303-1304, while finding no procedural due process violation

? The majority opinion held bound by previous Second Circuit deci-

sions to apply the “legitimate claim of entitlement test instead of simply

recognizing the owner’s indisputable property interest in the land he owns

.-” 870 F.2d at 917-918.

7

because of the absence of a “legitimate claim of entitlement.”

857 F2d at 1305.

It is not clear whether the same problem has arisen in the

Third Circuit. In Acierno v. Cloutier, supra, the Court of

Appeals, sitting en banc, cited the Second Circuit test requiring

the demonstration of a “legitimate claim of entitlement” in the

context of deciding an immunity issue based on a substantive

due process violation claim. 40 F.3d at 616. On the other hand,

the Third Circuit has been extremely clear in holding that the

ownership of the land is the protectable interest. Blanche Road

Corp. v. Bensalem Township, supra, and DeBlasio v. Zoning

Board of Adjustment, supra.

This kind of conflict—among circuits, between courts in

the same circuit, and sometimes even in the same opinion—

requires resolution by this Court.

B. A Number Of State Courts Are Now Applying The “Legit-

imate Claim Of Entitlement” Test.

A number of state courts have found violations of the Due

Process Clause in the land use context. However, they have

generally done this without analyzing the precise property inter-

est involved. See, ¢.g., Sundheim v. Board of County Commis-

sioners, 904 P.2d 1337, 1346 (Colo.App. 1995)(open question in

Colorado as to what the protected property interest is), aff’d,

926 P.2d 545 (Colo. 1996); Bakken v. City of Counsel Bluffs, 470

N.W.2d 34, 38-39 (Iowa 1991); Rivkin v. Dover Township Rent

Leveling Board, 143 N.J. 352, 363-380, 671 A.2d 567, 573-582,

cert. denied,—U.S. —, 117 S.Ct. 275 (1996); Moongate Water

Co., Inc. v. State, 120 N.M. 399, 404-405, 902 P.2d 554, 559-560

(1995); Bartlett v. Cinemark U.S.A., Inc., 908 S.W2d 229

(Tex.App. 1995); and Lutheran Day Care v. Snohomish County,

119 Wash.2d 91, 117, 117-125, 829 P.2d 746, 758-763 (1992).

Some state courts have discussed the two possibilities as to

what constitutes a protectable property interest and have then

come down on the side of the “legitimate claim of entitlement”

8

test. Kelley Property Development, Inc. v. Town of Lebanon, 226

Conn. 314, 320 n.11, 321-322, 627 A.2d 909, 913 n.11, 914

(1993); and Electro-Tech, Inc. v. H.F Campbell Co., 433 Mich.

57, 77 n.22, 114-118, 445 N.W.2d 61, 70 n.22, 87-89 (1989), cert.

denied, 493 U.S. 1021 (1990).

Finally, a number of state courts have adopted the “legiti-

mate claim of entitlement” test without even referring to the

possibility that the protectable right might lie in the ownership

of land. City of Buford v. Ward, 212 Ga.App. 752, 756, 443

S.E.2d 279, 283 (1994); Security Management Corp. v. Baltimore

County, 104 Md. App. 234, 245-249, 655 A.2d 1326, 1331-1333,

cert. denied,—U.S.—, 116 S.Ct. 917 (1995); Rosenfeld v. Board

of Health, 27 Mass.App.Ct. 621, 627, 541 N.E.2d 375, 379

(1989); Boulder City v. Cinnamon Hills Associates, 110 Nev. 238,

246, 871 P.2d 830, 325-326 (1994); Town of Orangetown v. Magee,

88 N.Y.2d 41, 52, 665 N.E.2d 1061, 1068, 643 N.Y.S.2d 21, 28

(1996); and Fairmont Township Board of Supervisors v.

Beardmore, 431 N.W.2d 292, 295 (N. Dak. 1988).

C. Federal And State Courts Are In Conflict As To What

Constitutes The Proper Standard Of Review.

Even in those courts which recognize the possibility that

actions taken by a governmental body in the land use context

may violate the Due Process Clause, there is still substantial

conflict as to what the proper standard of review is. As pointed

out in the petition for certiorari at 23-24, it is bad enough that

there are conflicts between circuits and amongst the states, but

it is intolerable that the results may turn on which court—

federal or state—a complaint is filed in. In California, as

demonstrated by the case under consideration, a landowner

who files a complaint in state court alleging a violation of the

Due Process Clause will be forced to face the “legitimate claim

of entitlement” test and then demonstrate that the action by the

governmental body shocks the conscience. On the other hand,

by filing in a district court in the Ninth Circuit, the ownership of

land will be sufficient, Harris v. County of Riverside, supra.

9

In New Mexico, a landowner apparently has a property

interest by virtue of ownership of land but can prevail only if he

or she can convince the state court that the governmental action

“shocks the conscience.” Moongate Water Co., supra, 120 N.M.

at 404, 902 P.2d at 559. On the other hand, the Tenth Circuit

uses the “legitimate claim of entitlement” test but analyzes the

validity of a claim that the Due Process Clause has been vio-

lated to determine whether the governmental action com-

plained of was “arbitrary and capricious.” Jacobs, Visconsi &

Jacobs, supra, 927 F.2d at 1119.

Finally, for some unknown reason, state courts located in

the Third Circuit are in disagreement with the Circuit Court of

Appeals. In Rivkin v. Dover Township Rent Leveling Board,

supra, the New Jersey Supreme Court adopted the “shocks the

conscience” test and then stated:

“We acknowledge that the standard that we adopt

today may be contrary to the more expansive interpreta-

tion given the Due Process Clause by many circuit courts,

which have found that ’arbitrary or irrational’ government

actions deny substantive due process rights. See, e.g., De

Blasio v. Zoning Bd. of Adjustment, 53 F.2d 592, 593 (3d

Cir.) .. .” 143 N.J. at 368, 671 A.2d at 576.

The concurring opinion in Anselma Station, Ltd. v. Penoni

Associates, Inc., 654 A.2d 608 (Pa.Cmwith 1995), is similar:

“The Third Circuit may want district courts to sit

often as super zoning hearing boards by hearing Section

1983 actions with jury trials in some cases, but I don’t

believe this court or the common pleas courts want to

assume that role.” 654 A.2d at 620.

IV. ONLY THIS COURT CAN RESOLVE THE CONFLICTS

AMONGST FEDERAL CIRCUITS AND STATE COURTS

Decisions by a court of appeals in one federal circuit are

not binding upon the courts in another circuit. Generali v.

—

10

D'Amico, 766 F.2d 485, 489 (11th Cir. 1985). California follows

the general rule that state courts are not bound by the interpre-

tations of federal statutes by the lower federal courts. Rohr

Aircraft Corp. v. County of San Diego, 51 Cal.2d 759, 764, 336

P.2d 521, 524 (1959), and 21 CJS, Courts, § 158, Decisions of

United States Courts as Precedents in State Court. On the

other hand, when this Court speaks, all lower courts, federal

and state, must listen.

“The determination by this court of [a federal] ques-

tion is binding upon the state courts, and must be followed,

any state law, decision, or rule to the contrary notwith-

standing.” Chesapeake & O.R.R. v. Martin, 283 U.S. 209,

221 (1931).

Until this Court speaks, the conflicts will continue and the

uncertainty will remain.

V. CONCLUSION

The lower courts—federal and state—are crying out for a

definitive statement as to the application of the Due Process

Clause in the land use context.

““The lower courts’ differing approaches to the treat-

ment of substantive due process in these areas [land use]

suggests the obvious need for Supreme Court clarification.’

Levinson, supra, 16 U. Dayton L. Rev. at 18.” Rivkin, supra,

134 N.J. at 371, 671 A.2d at 577.

See also Anselma Station, supra, 654 A.2d at 613:

“The Supreme Court has not seen fit to visit the issue

of what is required to properly allege a Section 1983

violation for deprivation of substantive due process.”

Finally, in what can only be described as a masterful

understatement, the Tenth Circuit stated:

11

“There is some confusion in the law as to when a

person has a property right in a [land use] context like that

before us.” Norton v. Village of Corrales, supra, 103 at 931.

This Court has to clear up that confusion and the petition

now before the Court provides the perfect vehicle to do so. As

it stands today, there are a number of courts which hold that the

Due Process Clause does not provide protection in the land use

context. This should not be the law but, if it is to be the law,

then it should be stated by this Court.

Accordingly, the NAHB and the BILD Foundation ask

that this Court grant Mr. and Mrs. Clark’s petition for certiorari

and remove the conflict, confusion, and uncertainty which cur-

rently exists.

DATED: March 12, 1997 Respectfully submitted,

MARY V. DICRESCENZO KENNETH B. BLEY*

THE NATIONAL COX, CASTLE &

ASSOCIATION NICHOLSON, LLP

OF HOME BUILDERS attorneys for AMICI

CURIAE

NICK CAMMAROTA THE NATIONAL

THE BUILDING ASSOCIATION OF HOME

INDUSTRY BUILDERS AND THE

LEGAL DEFENSE BUILDING INDUSTRY

FOUNDATION LEGAL DEFENSE

FOUNDATION

*Counsel of Record