Judicial Review

3. Judicial Review


3.1. Substantive Due Process


3.1.1. Federal Courts


Nectow v. City of Cambridge et al.,

277 U.S. 183 (1928)



ERROR TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS.




Messrs. Judson Hannigan and John E. Hannigan for plaintiff in error.


Mr. Peter J. Nelligan, with whom Messrs. J. Edward Nally and Joseph P. Lyons were on the brief, for defendants in error.


 


Mr. Justice Sutherland delivered the opinion of the Court.


 


A zoning ordinance of the City of Cambridge divides the city into three kinds of districts: residential, business and unrestricted. Each of these districts is sub-classified in respect of the kind of buildings which may be erected. The ordinance is an elaborate one, and of the same general character as that considered by this Court in Euclid v. Ambler Co., 272 U.S. 365. In its general scope it is conceded to be constitutional within that decision. The land of plaintiff in error was put in district R-3, in which are permitted only dwellings, hotels, clubs, churches, schools, philanthropic institutions, greenhouses and gardening, with customary incidental accessories. The attack upon the ordinance is that, as specifically applied to plaintiff in error, it deprived him of his property without due process of law in contravention of the Fourteenth Amendment.


The suit was for a mandatory injunction directing the city and its inspector of buildings to pass upon an application of the plaintiff in error for a permit to erect any lawful buildings upon a tract of land without regard to the provisions of the ordinance including such tract within a residential district. The case was referred to a master to make and report findings of fact. After a view of the premises and the surrounding territory, and a hearing, the master made and reported his findings. The case came on to be heard by a justice of the court, who, after confirming the master’s report, reported the case for the determination of the full court. Upon consideration, that court sustained the ordinance as applied to plaintiff in error, and dismissed the bill. 260 Mass. 441.


A condensed statement of facts, taken from the master’s report, is all that is necessary. When the zoning ordinance was enacted, plaintiff in error was and still is the owner of a tract of land containing 140,000 square feet, of which the locus here in question is a part. The locus contains about 29,000 square feet, with a frontage on Brookline street, lying west, of 304.75 feet, on Henry street, lying north, of 100 feet, on the other land of the plaintiff in error, lying east, of 264 feet, and on land of the Ford Motor Company, lying southerly, of 75 feet. The territory lying east and south is unrestricted. The lands beyond Henry street to the north and beyond Brookline street to the west are within a restricted residential district. The effect of the zoning is to separate from the west end of plaintiff in error’s tract a strip 100 feet in width. The Ford Motor Company has a large auto assembling factory south of the locus; and a soap factory and the tracks of the Boston & Albany Railroad lie near. Opposite the locus, on Brookline street, and included in the same district, there are some residences; and opposite the locus, on Henry street, and in the same district, are other residences. The locus is now vacant, although it was once occupied by a mansion house. Before the passage of the ordinance in question, plaintiff in error had outstanding a contract for the sale of the greater part of his entire tract of land for the sum of $63,000. Because of the zoning restrictions, the purchaser refused to comply with the contract. Under the ordinance, business and industry of all sorts are excluded from the locus, while the remainder of the tract is unrestricted. It further appears that provision has been made for widening Brookline street, the effect of which, if carried out, will be to reduce the depth of the locus to 65 feet. After a statement at length of further facts, the master finds “that no practical use can be made of the land in question for residential purposes, because among other reasons herein related, there would not be adequate return on the amount of any investment for the development of the property.” The last finding of the master is:


“I am satisfied that the districting of the plaintiff’s land in a residence district would not promote the health, safety, convenience and general welfare of the inhabitants of that part of the defendant City, taking into account the natural development thereof and the character of the district and the resulting benefit to accrue to the whole City and I so find.”


It is made pretty clear that because of the industrial and railroad purposes to which the immediately adjoining lands to the south and east have been devoted and for which they are zoned, the locus is of comparatively little value for the limited uses permitted by the ordinance.


We quite agree with the opinion expressed below that a court should not set aside the determination of public officers in such a matter unless it is clear that their action “has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” Euclid v. Ambler Co., supra, p. 395.


An inspection of a plat of the city upon which the zoning districts are outlined, taken in connection with the master’s findings, shows with reasonable certainty that the inclusion of the locus in question is not indispensable to the general plan. The boundary line of the residential district before reaching the locus runs for some distance along the streets, and to exclude the locus from the residential district requires only that such line shall be continued 100 feet further along Henry street and thence south along Brookline street. There does not appear to be any reason why this should not be done. Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Bd. of Public Works, 274 U.S. 325, 328, and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395. Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established; and, since a necessary basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment and cannot be sustained.


Judgment reversed.


Coniston Corporation v. Village of Hoffman Estates,

844 F.2d 461 (1988)



Francis X. Grossi, Jr., Katten, Muchin & Zavis, Chicago, Ill., for plaintiffs-appellants.


Richard N. Williams, Hoffman Estates, Ill., David L. Ader, Ancel, Glink, Diamond, Murphy & Cope, Chicago, Ill., for defendants-appellees.



Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.


 


Posner, Circuit Judge.


 


The plaintiffs own a tract of several hundred acres of land, originally undeveloped, in the Village of Hoffman Estates, Illinois. Their complaint, laid under the ubiquitous section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, charges that in turning down the site plan for a 17-acre parcel in the tract, the Village Board of Trustees and its members violated the Constitution and state law. The district court dismissed the complaint for failure to state a claim.


The procedure for land development set forth in the Village’s ordinances — ordinances incorporated by reference in an agreement that the Village made with the plaintiffs, annexing their land to the Village — requires first of all that there be a general plan for development approved by the Village Board of Trustees. This condition was met; there is an approved plan for the plaintiffs’ tract. The next step is that, as development proceeds, the developer must submit site plans setting forth his plans for developing particular parcels. The site plan is first submitted to the Village Plan Commission for its recommendation and is then forwarded to the Board of Trustees for its approval or disapproval. No criteria are set forth in the ordinances or anywhere else to guide the Board.


Over the years the plaintiffs have presented a number of site plans for parcels within their tract, and these plans have been approved by both the Plan Commission and the Board of Trustees. For the 17-acre parcel at issue in this case, the plaintiffs submitted a plan that envisaged the construction of five single-story commercial buildings with a total office space of 181,000 square feet. The Plan Commission recommended approval of the plan, finding that it conformed to the general plan for the development of the plaintiffs’ tract and to all applicable legal regulations. The Board of Trustees, however, disapproved the plan. It gave no reasons for its action but one of the trustees indicated that the reason (her reason, at any rate) was that the village has a lot of unused office space. (The Plan Commission had also expressed concern with the amount of vacant office space in the village.) Asked by the plaintiffs to reconsider its decision the Board went into executive session and emerged with an announcement that it was adhering to its original decision. Again there was no statement of reasons.


Before we get to the merits of the plaintiffs’ appeal we must decide whether we have jurisdiction. The defendants had filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. The district judge granted the motion and ordered the complaint dismissed, but did not order the entry of a judgment dismissing the lawsuit; no one had asked him to. The dismissal of a complaint is not the dismissal of the lawsuit, see Bieneman v. City of Chicago, 838 F.2d 962 (7th Cir.1988) (per curiam); Benjamin v. United States, 833 F.2d 669 (7th Cir.1987) (per curiam), since the plaintiff may be able to amend his complaint to cure whatever deficiencies had caused it to be dismissed. As long as the suit itself remains pending in the district court, there is no final judgment and we have no jurisdiction under 28 U.S.C. § 1291. This is particularly clear in a case such as the present one, where the plaintiff had not amended his complaint before it was dismissed and the defendant had not filed a responsive pleading; for then the plaintiff has a right to amend his complaint without leave of court. Fed.R.Civ.P. 15(a); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111 (7th Cir.1984).


If, however, it is plain that the complaint will not be amended, perhaps because the grounds of the dismissal make clear that no amendment could cure the defects in the plaintiff’s case, the order dismissing the complaint is final in fact and we have jurisdiction despite the absence of a formal judgment under Fed.R.Civ.P. 58. See, e.g., Akins v. Board of Governors, 840 F.2d 1371, 1375 n. 2 (7th Cir.1988); Hickey v. Duffy, 827 F.2d 234, 238 (7th Cir.1987). That is this case, notwithstanding the district judge’s mysterious statement that he was dismissing the complaint “in its present state.” The complaint sets forth the plaintiffs’ case in full; there appear to be no disputed or unclear facts; and the district judge found that the complaint stated no claim under federal law and he then relinquished his jurisdiction of the pendent state law counts in accordance with the usual rule that pendent claims are dismissed when the federal claims drop out before trial. The plaintiffs have no feasible options in the district court; the case is over for them there. Therefore they can appeal — but it would have been a lot simpler if either the plaintiffs or the defendants had asked the district court to enter a Rule 58 judgment order. We hope that, in the future, parties to litigation in this circuit will do that.


The plaintiffs’ only federal claims are that they were denied “substantive” and “procedural” due process. They expressly waived any claim they may have had that the defendants, by preventing them from developing the 17-acre parcel in accordance with the site plan, took their property without paying just compensation, in violation of the Fifth and Fourteenth Amendments. In this court they try to withdraw their waiver because of intervening Supreme Court decisions which they argue have broadened the concept of a regulatory taking, but their effort is futile. The taking is complete when it occurs, and the duty to pay just compensation arises then, see, e.g., First Evangelical Lutheran Church v. County of Los Angeles, ___ U.S. ___, 107 S.Ct. 2378, 2389 n. 10, 96 L.Ed.2d 250 (1987), but the suit for just compensation is not ripe until it is apparent that the state does not intend to pay compensation, Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985); Unity Ventures v. County of Lake, 841 F.2d 770, 773-74 (7th Cir.1988). These plaintiffs have not explored the possibility of obtaining compensation for an alleged regulatory taking. In fact, they do not want compensation; they want their site plan approved.


One might have thought that the takings clause would occupy the field of constitutional remedies for governmental actions that deprive people of their property, and hence that the plaintiffs’ waiver of their takings claim would drag their due process claims down with it. But this is not correct; pushed to its logical extreme, the argument would read “property” out of the due process clause of the Fifth and Fourteenth Amendments. Even limited to claims of denial of substantive due process the argument may fail. Rather than being viewed simply as a limitation on governmental power the takings clause could be viewed as the source of a governmental privilege: to take property for public use upon payment of the market value of that property, since “just compensation” has been held to be satisfied by payment of market value, see, e.g., United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970). Compensation in the constitutional sense is therefore not full compensation, for market value is not the value that every owner of property attaches to his property but merely the value that the marginal owner attaches to his property. Many owners are “intramarginal,” meaning that because of relocation costs, sentimental attachments, or the special suitability of the property for their particular (perhaps idiosyncratic) needs, they value their property at more than its market value (i.e., it is not “for sale”). Such owners are hurt when the government takes their property and gives them just its market value in return. The taking in effect confiscates the additional (call it “personal”) value that they obtain from the property, but this limited confiscation is permitted provided the taking is for a public use. It can be argued that if the taking is not for a public use, it is unconstitutional, but perhaps not as a taking; for all the takings clause says is “nor shall private property be taken for public use, without just compensation.” This language specifies a consequence if property is taken for a public use but is silent on the consequences if property is taken for a private one. Perhaps the effect of this silence is to dump the case into the due process clause. The taking would then be a deprivation of property without due process of law. The victim could bring suit under section 1983 against the governmental officials who took or are threatening to take his property, seeking an injunction against the taking (or an order to return the property if, it has been taken already — subject to whatever defense the Eleventh Amendment might afford against such a remedy) or full tort damages, not just market value.


There are two objections to this approach. First, the takings clause may be broad enough to take care of the problem without the help of the due process clause. The Supreme Court may believe that the takings clause, of its own force, forbids any governmental taking not for a public use, even if just compensation is tendered. There is language to this effect in a number of opinions, see, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 2329, 81 L.Ed.2d 186 (1984), though it may be inadvertent, and there is language in some cases that looks the other way — or both ways, compare First English Evangelical Lutheran Church v. County of Los Angeles, ___ U.S. ___, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250 (1987), with id. 107 S.Ct. at 2386 (takings clause requires compensation “in the event of otherwise proper interference amounting to a taking”). In Midkiff the Court cited, as an example of a case where it had “invalidated a compensated taking of property for lack of a justifying public purpose,” 467 U.S. at 241, 104 S.Ct. at 2329,a case (Missouri Pac. Ry. v. Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896)) where in fact the Court, after finding there was no public use, had held that the state had denied the owner due process of law. In other words, once the privilege created by the takings clause was stripped away, the state was exposed as having taken a person’s property without due process of law. But this was before the takings clause had been held applicable to the states (via the due process clause of the Fourteenth Amendment) in Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 236, 17 S.Ct. 581, 584, 41 L.Ed. 979 (1897) — though only a year before.


It seems odd that the takings clause would require just compensation when property was taken for a public use yet grant no remedy when the property was taken for a private use, although the semantics of the clause are consistent with such an interpretation, as we have seen. Yet well after the takings clause was deemed absorbed into the due process clause of the Fourteenth Amendment, the Supreme Court reviewed a zoning ordinance for conformity to substantive due process. See Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Justice Stevens has said that the Court in Euclid “fused the two express constitutional restrictions on any state interference with private property — that property shall not be taken without due process nor for a public purpose without just compensation — into a single standard.” Moore v. City of East Cleveland, 431 U.S. 494, 514, 97 S.Ct. 1932, 1943, 52 L.Ed.2d 531 (1977) (concurring opinion).


The other objection to the due process route in a case such as the present one is that it depends on the idea of “substantive” due process. This is the idea that depriving a person of life, liberty, or property can violate the due process clause of the Fifth and Fourteenth Amendments even if there are no procedural irregularities — even if, for example, the state after due deliberation has passed a statute establishing procedures for taking private homes and giving them to major campaign contributors or people with red hair, and in taking the plaintiff’s home has complied scrupulously with the statute’s procedural requirements.


Substantive due process is a tenacious but embattled concept. Text and history, at least ancient history, are against it, though perhaps not decisively. (See generally Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law, 19 Am.J. Legal Hist. 265 (1975).) A provision which states that life, liberty, or property may not be taken without due process of law implies that life, liberty, or property can be taken with due process of law, and hence that the only limitations are procedural ones. The term “due process of law” has been traced back to a fourteenth-century English statute, in which the term plainly referred to procedure rather than substance. See 28 Edw. III, ch. 3 (1354) (“no man … shall be put out of land …, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought into answer by due process of law”). In the seventeenth century Sir Edward Coke confused the picture by equating the term to Magna Carta’s much vaguer expression “by the law of the land.” The Supreme Court adopted Coke’s approach in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1856), pointing out that the Northwest Ordinance and several state constitutions had used the Magna Carta language and implying that the terminology was interchangeable in the Fifth Amendment as well. Even so, the term “law of the land” is scarcely pellucid. Further complications are injected by the much debated legislative history of the Fourteenth Amendment.


The strongest criticisms of substantive due process are institutional ones. The concept invests judges with an uncanalized discretion to invalidate federal and state legislation. See Illinois Psychological Ass’n v. Falk, 818 F.2d 1337, 1342 (7th Cir.1987); Gumz v. Morrissette, 772 F.2d 1395, 1404-08 (7th Cir.1985) (concurring opinion), overruled (on the grounds urged in the concurrence) in Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987); Chicago Board of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 744-45 (7th Cir.1987) (separate majority opinion). It also and by the same token invites the federal courts to sit in judgment on almost all state action — including, to come back to the present case, all zoning decisions. For it is tempting to view every zoning decision that is adverse to the landowner and in violation of state law as a deprivation of property. Property is not a thing, but a bundle of rights, and if the state confers rights with one hand and takes them away with the other, by a zoning decision that by violating state law deprives the owner of a property right and not just a property interest (the owner’s financial interest in being able to employ his land in its most valuable use), why is it not guilty of denying substantive due process?


No one thinks substantive due process should be interpreted so broadly as to protect landowners against erroneous zoning decisions. But it is difficult to come up with limiting concepts that are not completely ad hoc. Justice Stevens tried — though in the context of judicial review of an ordinance, rather than of an individual decision applying an ordinance — in his concurring opinion in Moore v. City of East Cleveland, supra, 431 U.S. at 520, 97 S.Ct. at 1946, where he suggested that an ordinance that is not “shown to have any ‘substantial relation to the public health, safety, morals or general welfare’” and that “cuts deeply into a fundamental right associated with the ownership of residential property” violates the Constitution.


The present case is so remote from a plausible violation of substantive due process that we need not decide whether, or to precisely what extent, the concept limits takings by state and local governments; or whether the takings clause does so; or whether both or neither do so and if both whether there is any practical difference except possibly in a case like this where the plaintiff waives any claim based on the takings clause; or, finally, whether the plaintiffs can force us to confront difficult questions of substantive due process by their decision to waive a seemingly more straightforward claim under the takings clause. The Village of Hoffman Estates did not take the plaintiffs’ land (or in the language of the due process clause, deprive them of the land) for a private (hence presumptively unreasonable) purpose, so even if we assume that if both conditions were fulfilled the taking or deprivation would violate the due process clause, the plaintiffs cannot prevail.


As to whether there was a deprivation: Granted, the rejection of the plaintiffs’ site plan probably reduced the value of their land. The plan must have represented their best guess about how to maximize the value of the property, and almost certainly a better guess than governmental officials would make even if the officials were trying to maximize that value, which of course they were not. But the plaintiffs do not even argue that the rejection of the site plan reduced the value of their parcel much, let alone that the parcel will be worthless unless it can be used to create 181,000 square feet of office space. A taking is actionable under the takings clause even if it is of just a sliver of the owner’s property (e.g., a one-foot strip at the back of a 100-acre estate), see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), and we can assume that the same thing is true under the due process clause. But in cases under the takings clause the courts distinguish between taking away all of the owner’s rights to a small part of his land and taking away (through regulation) a few of his rights to all of his land, and grant much broader protection in the first case. With Loretto compare City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 674 and n. 8, 96 S.Ct. 2358, 2362 and n. 8, 49 L.Ed.2d 132 (1976); Barbian v. Panagis, 694 F.2d 476, 483-85 (7th Cir.1982), and cases cited there. The plaintiffs in this case have been deprived of their “right” to create 181,000 square feet of office space on a 17-acre parcel of a much larger tract, and that deprivation is a limited, perhaps minimal, incursion into their property rights. If so it is not a deprivation at all, in the constitutional sense, and the due process clause is not in play. See Wells Fargo Armored Service Corp. v. Georgia Public Service Comm’n, 547 F.2d 938, 941 (5th Cir.1977); cf. Brown v. Brienen, 722 F.2d 360, 364 (7th Cir.1983) (dictum); York v. City of Cedartown, 648 F.2d 231 (5th Cir.1981) (per curiam).


Considering now the grounds as distinct from the consequences of the defendants’ action, it may seem that since the Board of Trustees gave no reason for rejecting the plan we cannot exclude the possibility that the motive for the rejection was private, so that if (but it is a big if, as we have just seen) the rejection amounted to a taking or deprivation of property the plaintiffs’ constitutional rights may have been violated. And even if, as seems plausible, the reason given by one trustee was the ground for the Board’s rejection of the site plan, this reason seems to amount to nothing more than a desire to protect existing owners of office buildings from new competition, and thus makes the rejection look like an effort to transfer wealth from the plaintiffs to the existing owners. But as emphasized in our opinion in the Chicago Board of Realtors case, much governmental action is protectionist or anticompetitive, see 819 F.2d at 742, 745; and nothing is more common in zoning disputes than selfish opposition to zoning changes. The Constitution does not forbid government to yield to such opposition; it does not outlaw the characteristic operations of democratic (perhaps of any) government, operations which are permeated by pressure from special interests. Rogin v. Bensalem Township, 616 F.2d 680, 687-88 (3d Cir.1980). There is no suggestion that the defendants acted out of some partisan political motive that might raise questions under the First Amendment or, one of our sister courts has suggested recently, under some notion of substantive due process, see Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.1988).


This case presents a garden-variety zoning dispute dressed up in the trappings of constitutional law — a sure sign of masquerade being that the plaintiffs do not challenge the constitutionality of the zoning ordinances of the Village of Hoffman Estates but argue rather than the Board of Trustees had no authority under those ordinances to reject their site plan once the Village Plan Commission had approved it. If the plaintiffs can get us to review the merits of the Board of Trustees’ decision under state law, we cannot imagine what zoning dispute could not be shoehorned into federal court in this way, there to displace or postpone consideration of some worthier object of federal judicial solicitude. Something more is necessary than dissatisfaction with the rejection of a site plan to turn a zoning case into a federal case; and it should go without saying that the something more cannot be merely a violation of state (or local) law. A violation of state law is not a denial of due process of law. See, e.g., Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926); Kompare v. Stein, 801 F.2d 883, 888 (7th Cir.1986); Kasper v. Board of Election Comm’rs, 814 F.2d 332, 342 (7th Cir.1987).


Thus we agree with the First Circuit’s decision in Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982), that the fact “that town officials are motivated by parochial views of local interests which work against plaintiffs’ plan and which may contravene state subdivision laws” (or, we add, local ordinances) does not state a claim of denial of substantive due process. We cited Estabrook with approval in Burrell v. City of Kankakee, 815 F.2d 1127, 1129 (7th Cir.1987). It is true that there we interpreted Estabrook to mean that “in order to prevail on a substantive due process claim, plaintiffs must allege and prove that the denial of their proposal is arbitrary and unreasonable bearing no substantial relationship to the public health, safety or welfare,” id. This formulation, borrowed from Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926), which dealt with the validity of zoning ordinances, not of individual zoning decisions where arguably the standard of federal judicial review should be narrower, is broadly worded indeed; but the only example we gave of a zoning decision that might flunk the test was one based on race or color, see 815 F.2d at 1129. Of course if a zoning decision is based on considerations that violate specific constitutional guarantees, it is invalid; but in all other cases the decision can be said to deny substantive due process only if it is irrational. See Shelton v. City of College Station, 780 F.2d 475, 479-83 (5th Cir.1986); Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1034-35 (3d Cir.1987). Thus, by “arbitrary and unreasonable” in Burrell we meant invidious or irrational. See also Unity Ventures v. County of Lake, supra, 841 F.2d at 775 n. 2. The same test would be appropriate if the zoning decision were challenged under the equal protection clause of the Fourteenth Amendment, rather than under the due process clause of the Fifth or Fourteenth Amendments. See id.; Parks v. Watson, 716 F.2d 646, 654 (9th Cir.1983) (per curiam).


At worst, the decision here was mistaken and protectionist; it was not irrational, so the claim of a denial of substantive due process fails. But were the plaintiffs denied procedural due process? As often, the line between “procedure” and “substance” is hazy in the setting of the regulation of land uses. The denial of the plaintiffs’ site plan without a full statement of reasons is what gives the denial such arbitrary cast as it may have, and thus lends color to the claim of irrationality, which is the substantive due process claim; but the failure to give reasons is also the cornerstone of the procedural due process claim. It is no good saying that if a person is deprived of property for a bad reason it violates substantive due process and if for no reason it violates procedural due process. Unless the bad reason is invidious or irrational, the deprivation is constitutional; and the no-reason case will sometimes be a case of invidious or irrational deprivation, too, depending on the motives and consequences of the challenged action.


The plaintiffs complain not only about the absence of a statement of reasons but also about the Board of Trustees’ action in going into executive session and about the absence of any language in the Village’s ordinances to indicate that the Board of Trustees is authorized to reject a site plan recommended by the Plan Commission. These complaints might have considerable force if the zoning decision had been adjudicative in nature, but it was not. The very absence of criteria, coupled with the fact that the Village Board of Trustees is the governing body of the Village of Hoffman, suggests that, as is usually true of zoning, the Board’s decision to approve or disapprove a site plan is a legislative rather than adjudicative decision. The difference is critical. See Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915); City of Eastlake v. Forest City Enterprises, Inc., supra, 426 U.S. at 675 n. 10, 96 S.Ct. at 2363 n. 10; Griffin High School v. Illinois High School Ass’n, 822 F.2d 671, 676 (7th Cir.1987); Philly’s v. Byrne, 732 F.2d 87, 92 (7th Cir.1984). The Constitution does not require legislatures to use adjudicative-type procedures, to give reasons for their enactments, or to act “reasonably” in the sense in which courts are required to do; as already noted, legislatures can base their actions on considerations — such as the desire of a special-interest group for redistributive legislation in its favor — that would be thought improper in judicial decision-making. It is odd, though, that the plaintiffs should complain about the action of the Board of Trustees in considering their request for reconsideration in executive session; judicial deliberations are typically more private than legislative ones.


It is not labels that determine whether action is legislative or adjudicative. A legislature is not allowed to circumvent the due process clause by the facile expedient of announcing that the state’s courts and administrative agencies are henceforth to be deemed legislative bodies even though nothing in their powers and procedures has changed. But neither is the legislature required to judicialize zoning, and perhaps it would not be well advised to do so. The decision whether and what kind of land uses to permit does not have the form of a judicial decision. The potential criteria and considerations are too open-ended and ill-defined. Granted, much modern adjudication has this character, but the difference is that even modern courts hesitate to treat the decision-making process as a wide-open search for the result that is just in light of all possible considerations of distributive and corrective justice, while legislatures are free to range widely over ethical and political considerations in deciding what regulations to impose on society. The decision to make a judgment legislative is perforce a decision not to use judicial procedures, since they are geared to the making of more circumscribed, more “reasoned” judgments. Moreover, if a state legislature wishes to reserve to itself the type of decision that in other systems might be given to the executive or judicial branches, it can do so without violating the federal Constitution, which does not require a specific separation and allocation of powers within state government. See Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937); United Beverage Co. v. Indiana Alcoholic Beverage Comm’n, 760 F.2d 155 (7th Cir.1985). It has been argued that the need for separation of powers is even greater at the state than the national level, because a smaller polity is more susceptible to the pressure of factions than a large one. See Comment, The Guarantee of Republican Government: Proposals for Judicial Review, 54 U.Chi.L.Rev. 208, 234-35 (1987). The counterargument is that there is more intergovernmental competition the lower the level of government. The debate is foreclosed at our level of the judiciary by higher authority.


The Board of Trustees is the Village’s legislature, LaSalle National Bank v. Village of Bloomingdale, 154 Ill.App.3d 918, 928-29, 107 Ill.Dec. 604, 611, 507 N.E.2d 517, 524 (1987), and it has reserved to itself the final decision in zoning matters. Naturally it has not sought to tie its hands with criteria for approval of site plans or with a requirement that it give reasons for its action and always act in a fishbowl. The check on its behavior is purely electoral, but, as the Supreme Court stated in the City of Eastlake case, in a democratic polity this method of checking official action cannot be dismissed as inadequate per se. See also Bi-Metallic Investment Co. v. State Board of Equalization, supra, 239 U.S. at 445, 36 S.Ct. at 142; Philly’s v. Byrne, supra, 732 F.2d at 91-93.


A reason stressed in Philly’s why legislatures are not required to follow trial-type procedures is the across-the-board character of legislation. See id. at 92. A statute, unlike a judicial decision, applies directly to a whole class of people, and it is this attribute that makes democractic checking feasible, though it is far from perfect. The smaller the class affected by a nominally legislative act, the weaker the democratic check; in the limit, where the class has only one member, we have the bill of attainder, which Congress and state legislatures are forbidden to enact. See U.S. Const., art. I, §§ 9, 10; Philly’s v. Byrne, supra, 732 F.2d at 93. The class here is small. This might support an argument that some type of individualized hearing was required. See Londoner v. City & County of Denver, 210 U.S. 373, 385-86, 28 S.Ct. 708, 713-14, 52 L.Ed. 1103 (1908). City of Eastlake, upholding the decision to submit a single landowner’s zoning application to a referendum, cuts the other way. In any event, there was a hearing here — maybe not enough of one to satisfy the requirements of due process in an adjudicative setting but enough to give the plaintiffs all the process that due process in zoning could possibly be thought to require after City of Eastlake.


One point remains to be noted briefly. The district court dismissed a pendent state law claim that sought a mandamus directing the defendants to approve the plaintiffs’ site plan. The ground for the dismissal was, as we noted, the fact that the federal claims were being dismissed before trial. That is fine, but we think it useful to add for future reference that the court had in any event no jurisdiction to issue a mandamus against state officials for violating their duties under state law. The interference with the operation of state government from such a mandamus would be disproportionate to the need, which can be satisfied perfectly well (if perhaps with some loss of convenience) by proceeding in state court. The interference would be even greater than that caused by the usual injunction — and the Supreme Court has held that the federal courts’ pendent jurisdiction may not be used as a basis for enjoining state officials from violating state law. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 120-21, 104 S.Ct. 900, 918-19, 79 L.Ed.2d 67 (1984).


AFFIRMED.


3.1.2. State Courts


Twigg v. County of Will,

255 Ill. App.3d 490, 627 N.E.2d 742, (1994)



John X. Breslin, Deputy Director, State’s Attys. Appellate Prosecutor, Ottawa, James Glasgow, Will County State’s Atty., Joliet, Judith Z. Kelly (argued), State’s Attys. Appellate Prosecutor, Ottawa, for County of Will.


Thomas R. Wilson (argued), Herschbach, Tracy, Johnson, Bertani & Wilson, Joliet, for John W. Twigg and Anna M. Twigg.


 


Justice Barry delivered the opinion of the court.



Defendant County of Will appeals from a judgment of the Circuit Court of Will County declaring defendant’s county zoning ordinance void and unconstitutional as applied to the property of plaintiffs John W. and Anna Twigg and granting injunctive relief to restrain defendant from enforcing its A-1 (agricultural) zoning regulation with respect to the subject real estate. The issue in this appeal is whether the trial court’s decision is contrary to the manifest weight of the evidence. For reasons that follow, we affirm.


According to the record on appeal, plaintiffs purchased a 35-acre parcel of land in Peotone Township zoned A-1 for $3750 per acre in 1991. John Twigg testified that he knew the zoning classification at the time of the purchase, but he was not aware that the corresponding county ordinance required a minimum of 10 acres per residential unit. He testified that he had intended to divide the real estate into four parcels to provide separate residential lots for himself and his three adult children and to raise and keep horses. However, because of complaints of an adjoining property-owner, plaintiffs sold off the eastern-most 10 acres for $50,000. They then proposed to divide the remaining acreage into two 10-acre lots for one son and their daughter, and to split the last 5 acres into two lots of 2 1/2 acres each for themselves and their other son. Because plaintiffs’ plans for the five acres did not conform with the A-1 classification, they petitioned the Will County Board to rezone the five acres from A-1 to E-2, which permits country residential lots of 2 1/2 acres. The Board denied plaintiffs’ application, and they brought their complaint for declaratory and injunctive relief in the circuit court.


At trial, plaintiffs presented expert testimony of Thomas Murphy, a land use planner, and Charles Southcomb, a real estate appraiser. Murphy testified that E-2 zoning was a good use of the five-acre parcel and that it would have a positive effect on the future development of the surrounding area in that it would increase tax values while providing attractive residences in the immediate area. He further opined that the current A-1 zoning had no practical application and its 10-acre limitation was “somewhat arbitrary” as applied to plaintiffs’ proposed use. As a former director of the Will County Regional Planning Commission, Murphy testified that in his opinion the county had assigned A-1 classification arbitrarily to all tracts in Will County that were not otherwise used for non-agricultural purposes when the county zoning ordinance was adopted in 1978. He testified that the county had a history of turning down all applications for rezoning to develop parcels of less than 10 acres. Finally, Murphy testified that denial of plaintiffs’ proposed use of the five-acre parcel for two single-family residences adjacent to their daughter’s horse-keeping operation would do nothing to preserve the agricultural character of the surrounding area.


Southcomb testified that the plaintiffs’ proposed use of the five-acre parcel as two lots zoned E-2 was the highest and best use. He testified that the market value of the land as currently zoned was $5000 per acre, and that using a comparable sales analysis it would be $12,000 per acre if rezoned E-2.


James Shelby, Director of Planning for Will County, and Bruce Clover, a farmer in the immediate area, testified on defendant’s behalf. Shelby testified that there were no parcels zoned E-2 within a 1 1/2-mile radius of the subject property. However, he admitted that there are about five non-conforming parcels with residences on less than 10-acre lots within that 1 1/2-mile radius. These all had been in existence prior to the enactment of the 1978 zoning ordinance. Shelby testified that residential development was generally incompatible with agricultural use because the homeowners complained about farming practices. He also expressed concern about setting a precedent for residential development if the rezoning were allowed in this case.


Clover testified that he had leased the subject real estate from the prior owner and had himself netted about $150 per acre per year on a crop-share basis. He stated that he bore no animosity toward the plaintiffs, but that agricultural use was incompatible with residential development to the extent that mail boxes and garbage cans along the roadways might hinder the movement of farm machinery, or children playing in the area might damage terraces and downspouts. Clover agreed that the soil was “excellent” for growing crops, including alfalfa, and for pasturing horses.


At the conclusion of all testimony and closing arguments of counsel, the court took the matter under advisement. On February 22, 1993, a written decision was entered granting declaratory and injunctive relief for plaintiffs, as aforesaid.


Zoning is primarily a legislative function, and it is within the province of local governmental bodies to determine the use of land and to establish zoning classifications. Accordingly, a zoning ordinance will be deemed constitutional and its validity upheld if it bears any “ ‘substantial relationship to the public health, safety, comfort or welfare.’ ” ( La Grange State Bank v. County of Cook (1979), 75 Ill.2d 301, 26 Ill.Dec. 673, 675-76, 388 N.E.2d 388, 390-91 ( quoting Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 179-80, 354 N.E.2d 899, 903).) A party challenging the validity of a zoning ordinance must establish both the invalidity of the existing zoning ordinance and the reasonableness of the proposed use of the property. ( Glenview State Bank v. Village of Deerfield (1991), 213 Ill.App.3d 747, 758, 157 Ill.Dec. 330, 338, 572 N.E.2d 399, 407.) The party challenging the ordinance has the burden of proving by clear and convincing evidence that the application of the ordinance to the property is “unreasonable and arbitrary and bears no substantial relation to public health, safety, morals, or welfare.” (Cosmopolitan National Bank v. County of Cook (1984), 103 Ill.2d 302, 310, 82 Ill.Dec. 649, 653, 469 N.E.2d 183, 187.) An appellate court may not reverse the trial court’s findings unless such findings are against the manifest weight of the evidence. ( Glenview State Bank, 213 Ill.App.3d at 759, 157 Ill.Dec. at 309, 572 N.E.2d at 408.) The trier of fact is in a better position to assess the credibility of the witnesses and their opinions, and the reviewing court may not reverse simply because the reviewing court may have come to a different conclusion. Glenview State Bank, 213 Ill.App.3d at 759-60, 157 Ill.Dec. at 309, 572 N.E.2d at 408.


There are eight factors to consider in determining whether a zoning ordinance is valid. The first six factors were listed in La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46-47, 145 N.E.2d 65, 69. They are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promote the health, safety, morals or welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. The final two factors set forth in Sinclair Pipeline Co. v. Village of Richton Park (1960), 19 Ill.2d 370, 378, 167 N.E.2d 406, 411, are: (7) the care that the community has taken to plan its land use development, and (8) the community need for the proposed use.


Although no one factor is controlling, the first factor-existing uses and zoning of nearby property-is “of paramount importance.” (Glenview State Bank, 213 Ill.App.3d at 760, 157 Ill.Dec. at 309, 572 N.E.2d at 408.) Defendant argues in this appeal that this factor weighs heavily in its favor. We do not agree. As plaintiffs correctly point out, the quarter section in which the subject property is situate is divided into nine other ownerships, three of which contain less than ten acres. Plaintiffs’ five-acre parcel lies in the northwest corner of the quarter section, and within the 1 1/2-mile radius surrounding it, several residences on parcels of less than ten acres are established. Although none are zoned E-2 and were existing prior to the 1978 ordinance, the uses of nearby property are not inconsistent with the E-2 use plaintiffs propose for the five-acre parcel in question. The trial court specifically noted that the existing, non-conforming uses of the surrounding property did not support the county’s position in this case. We find that the trial court’s conclusion is not contrary to the manifest weight of the evidence.


With regard to the second factor, defendant argues that the trial court mistakenly focused on the property’s increase in market value if rezoned E-2 instead of the diminution of value, if any, as currently zoned A-1. We agree in part that the fact that rezoning would enhance the property’s value is not determinative. However, the evidence presented to the court established that the highest and best use of the property was E-2, and there was no evidence that the value of surrounding property would be diminished by plaintiffs’ proposed use. Thus, to the extent that evidence of property value was presented, we do not find that the trial court erred in weighing this factor in plaintiffs’ favor.


The third and fourth factors, similarly, support the trial court’s conclusion. Although there is no question that public morals are not at risk if the rezoning is granted, there was some testimony that farming practices are not compatible with residential use. On the other hand, plaintiffs’ expert witnesses testified that the A-1 limitation was not substantially related to issues of public health, safety or general welfare. Plaintiffs propose to build two residences on five acres adjacent to their daughter’s horse-keeping operation-one for themselves, and the other for an adult son. Even defendant’s expert witness could not deny that the horses were an agricultural enterprise. Defense witnesses’ suggestion that rezoning in this case would set an unfavorable precedent for future property owners was purely speculative, self-serving and appropriately discounted by the trial court in weighing the parties’ evidence. And, inasmuch as plaintiffs’ proposed use of the entire 25-acre parcel was to unite his family and promote animal husbandry, thereby preserving the agricultural character of the area, there is little, if any, public gain to be realized by enforcing the A-1 classification, and great hardship would be imposed on plaintiffs to deny the zoning change.


Factors five and six, as the court noted in its written decision, do not establish the invalidity of the ordinance. There is no dispute that the land is suitable for agricultural use and that it was actively farmed prior to plaintiffs’ purchase of it.


With respect to factor seven, the evidence tended to show that the current zoning of the area, including plaintiffs’ tract, was assigned in an arbitrary manner without considering the several non-conforming uses existing when the land-use plan was adopted and the zoning ordinance was enacted. The former planning director testified that he had expressed his disagreement with the across-the-board A-1 classification, but that he was overruled by the time the plan was presented for approval in 1978. A later Land Resource Management Plan adopted in 1990 pursuant to the State Local Land Resource Management Planning Act (50 ILCS 805 (West 1992)) similarly failed to take into consideration the various residences on parcels under ten acres surrounding plaintiffs’ property. Thus, despite the county board’s consistent denial of petitions for rezoning, the trial court’s conclusion that the land use plan was not carefully designed is supported by the evidence of record.


Lastly, although no community need for rezoning was demonstrated (factor eight), a need for rezoning was shown to exist for plaintiffs in order to accommodate their interest in uniting with their adult children in a country environment. Mr. Twigg testified that he had looked at other parcels in other townships, but the size and selling price made this particular 35-acre tract appropriate for his purposes. The promotion of family unity and animal husbandry in this case is consistent with the community interest in preserving A-1 agricultural zoning generally.


Although no one factor definitively established the invalidity of defendant’s ordinance in this case, it is clear that the court gave great weight to its finding that plaintiffs’ proposed use of the remaining 25 acres of the original 35-acre land purchase was generally in harmony with both the current A-1 agricultural zoning and existing non-conforming uses for smaller residential parcels in the surrounding area. In our opinion, the court acted within its discretion in analyzing the factors and weighting them within the context of the evidence presented here.


In sum, we find that the trial court’s conclusion that enforcement of the zoning ordinance prohibiting plaintiffs’ proposed development of the five-acre parcel “is arbitrary and bears no substantial or reasonable relation to public health, safety, morals, comfort and general welfare” is not contrary to the manifest weight of the evidence. Accordingly, we affirm the court’s judgment declaring the ordinance void and unconstitutional as applied to plaintiffs’ property and enjoining the defendant from prohibiting the building of two residences on the five-acre parcel as proposed.


The judgment of the Circuit Court of Will County is affirmed.


 


Affirmed.


McCUSKEY and LYTTON, JJ., concur.


Amberwood Development Corporation v. Board of Appeals of Boxford,

65 Mass. App. Ct. 205 (2005)




Katharine Goree Doyle for the defendants.


Alan L. Grenier for the plaintiffs.


 


Mills, J.


 


In an action brought by Amberwood Development Corporation (Amberwood) under G. L. c. 240, § 14A, a judge of the Land Court, reversing the zoning board of appeals of Boxford (board), ruled that the application of a provision that prohibits the further subdivision of a lot that has benefited from an exception to a frontage requirement in the zoning by-law, while otherwise valid, was unconstitutional as applied to Amberwood’s lot of residentially zoned land.1 This is the town’s appeal. We reverse.


1. Background.2 Amberwood owns an 8.1 acre lot of land on Georgetown Road in Boxford.3 The lot was created in 1997 when Amberwood obtained approval to subdivide a tract containing approximately twenty-two acres into four separate lots, including the locus.4 John C. Sanidas, as trustee of the Sanidas Family Trust, is the owner of, and resident at, 7 Amberwood Lane (Sanidas house lot), which abuts the locus to the north.5


Both the locus and the Sanidas house lot are in a residential zoning district where the minimum lot area is two acres, and the minimum street frontage is 250 feet. The locus has frontage of only one hundred feet along Georgetown Road, but Amberwood was able to build a single family home on the locus by taking advantage of a “frontage exception for larger lots” (frontage exception) in the Boxford zoning by-law, § 196-24.D(3), which provides as follows:


“(a) Notwithstanding the [otherwise applicable dimensional provisions, including minimum street frontage of 250 feet], a lot in an R-A Residence-Agricultural District need not have the specified amount of street frontage, provided that:


“[1] The area of the lot exceeds by at least four acres the minimum area required for such an R-A District;


“[2] The lot has a minimum continuous street frontage of not less than 50 feet and a width of not less than 50 feet at any point between the street and the site of the dwelling;


“[3] There is not more than one other such lot with frontage contiguous to it; and


“[4] It is not, in the opinion of the Planning Board, so located as to block the possible future extension of a dead-end street.


“(b) Notwithstanding any other provisions, no such lot as described in Subsection D(3)(a) above on which a dwelling is located shall be hereafter subdivided, reduced in area” (emphasis added).


In March of 2000, Amberwood, seeking to convey a two-acre portion of the locus (parcel C-2) to become part of the Sanidas house lot, sought a variance (G. L. c. 40A, § 10) from subsection (b) of the frontage exception provision which otherwise prohibited the two-acre reduction of the area of the 8.1 acre locus, a lot that had been created by Amberwood utilizing subsection (a) of that provision. When the board denied the variance request, Amberwood appealed pursuant to G. L. c. 40A, § 17, adding a second count to its complaint pursuant to G. L. c. 240, § 14A, challenging the frontage exception provision generally and as applied to the locus in these circumstances.


The Land Court judge noted the legitimacy of the purposes for the frontage exception, ruling it a valid zoning by-law provision. However, upon the precedent of Barney & Carey Co. v. Milton, 324 Mass. 440 (1949), and Pittsfield v. Oleksak, 313 Mass. 553 (1943), she ruled that the by-law provision could not legitimately be applied to the locus. The judge decided that the principal purposes of that provision of the by-law, preservation of open space and prevention of further development, would remain unoffended and unaffected by the conveyance out of the two-acre parcel. She further noted that Amberwood had announced, in argument before the Land Court, that a restrictive covenant would be in place upon the two-acre parcel when conveyed and that it would remain essentially untouched, as open space not susceptible to development.6 The judge essentially ruled that application of the by-law provision in this case was not necessary to effect its purposes.


2. Discussion. General Laws c. 240, § 14A,7 applies only to the Land Court, and provides for declaratory relief without an existing controversy. See Hansen & Donahue, Inc. v. Norwood, 61 Mass. App. Ct. 292, 293 (2004). The Land Court has exclusive jurisdiction in such cases, G. L. c. 185, § 1(j), and it has become common for zoning appeals pursuant to G. L. c. 40A, § 17, especially from denial of variance requests, to be accompanied by a count under G. L. c. 240, § 14A, concerning the validity or invalidity of a zoning restriction applicable to a specific lot or use. The Land Court is considered a particular court of competence in such matters. See Harrison v. Braintree, 355 Mass. 651, 654 (1969). See also Kindercare Learning Centers, Inc. v. Westford, 62 Mass. App. Ct. 924 (2004).


“The primary purpose of proceedings under § 14A is to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provisions of a zoning enactment in terms applicable to it, particularly where there is no controversy and hence no basis for other declaratory relief.” Hansen & Donahue, Inc. v. Norwood, 61 Mass. App. Ct. at 295, quoting from Harrison v. Braintree, 355 Mass. at 654. Section 14A is to be broadly construed, Hansen & Donahue, supra, although the burden is on the landowner to prove that the zoning regulation is unreasonable as applied to its property. See Kaplan v. Boston, 330 Mass. 381, 384 (1953). While the availability of the remedy is not restricted to situations in which the purchase and sale of the locus is pending, in Whitinsville Retirement Soc., Inc. v. Northbridge, 394 Mass. 757, 763 (1985), the court explained that “[t]he evil to be remedied” by G. L. c. 240, § 14A, is “a situation where someone may be forced to invest in land and then subsequently find[s] out there are restrictions.” See Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206, 210 (1985).8


The town argues that for a by-law provision to be found invalid as applied, the court must find both a failure to promote the purposes of the by-law and significant injury to the property owner, and that neither alone warrants a determination of invalidity. The town then asserts that the judge did not find injury to the landowner, that the landowner made no effort to show any injury, and that none is evident from the record. The landowner argues that (a) the judge’s decision is consistent with public policy because parcel C-2 will remain open space and undeveloped; (b) there is no second branch to the analysis, that is, injury to the property owner; and (c) the plaintiff intends to covenant in perpetuity, nevertheless, to prevent further development of parcel C-2.


We conclude that there is, essentially, a second branch to the analysis, and we are persuaded by the town’s argument. Although the cases have not explicitly articulated a second branch “as such,” in Barney & Carey Co. the court ruled that “[w]here the application of the by-law … has no real or substantial relation to the public safety, public health or public welfare but would amount to an arbitrary, unreasonable, and oppressive deprivation of the owner’s interest in his private property, then that application of the regulation has been struck down” (emphasis added). Barney & Carey Co. v. Milton, 324 Mass. at 445. The emphasized language requires that Amberwood show significant injury to its interest in the locus, i.e., that the prohibition against conveying out parcel C-2 is arbitrary, unreasonable, and oppressive. See Opinion of the Justices, 333 Mass. 773, 781 (1955). The judge did not so find, and the record would not, in any event, support such a finding.


In contrast, the “substantiality” of the injury claimed by the landowner was determined to be significant in the following cases. In Barney & Carey Co. v. Milton, supra at 445-447, the land was zoned only for residential purposes but was not readily usable for dwellings. It was located some distance from any other dwelling, and bounded by the Neponset River, extensive marshes, and a highway beyond which there were further extensive marshes. Id. at 441, 445. After meticulous review of the facts, the court effectively noted that use of the land for the zoned residential purposes was a practical impossibility. “In Barney & Carey Co. … there was, practically speaking, no use left for the locus when zoned for residences and not for business.” Lexington v. Simeone, 334 Mass. 127, 131 (1956).


In Pittsfield v. Oleksak, 313 Mass. at 554-555, the ordinance prevented the maintenance and use of a portable saw mill, which effectively rendered useless one hundred acres of timberland, with resulting negative consequences to both public and private interests. The court concluded that application of the ordinance “would permanently deprive the defendant, and therefore the community, of a valuable and otherwise wasting asset” and held that the ordinance was invalid as applied. Id. at 555.


The residentially zoned land in Nectow v. Cambridge, 277 U.S. 183, 186 (1928), was surrounded by industrial and railroad uses. The United States Supreme Court noted that “no practical use [could] be made of the land in question for residential purposes,” id. at 187, and concluded that “the invasion of the property … was serious and highly injurious.” Id. at 189.


We also consider it relevant that Amberwood elected to create the locus by taking advantage of the frontage exception that it now seeks to have partially invalidated. We respect, but do not find compelling as matter of law, the judge’s observation that the owner, when earlier creating the subdivision, could have accomplished what he now seeks, i.e., a 6.1 acre lot to the exclusion of the land represented as parcel C-2 from that lot.9 ,10


Amberwood, in its application to the board, identified the purpose of the conveyance as to “provide buffering for the [Sanidas house lot].” Its application also noted that “[n]o new lots will be or can be created by the conveyance.” However, Amberwood can accomplish these purposes within the status quo, and without the invalidation of the by-law provision as applied. For example, the buffering and prohibition of development can be created by the conveyance of an easement to the owner of the Sanidas house lot over parcel C-2, with rights to exclusive occupation, reserving no rights (other than the underlying fee ownership) to the owner of the locus.11


The ability to convey one’s land is a recognized property interest, United States v. General Motors Corp., 323 U.S. 373, 378 (1945), and application of the by-law is some impediment to that property right. However, numerous statutes and regulations restrict private property rights. Here, the impediment is minimal compared with the circumstances of those cases where courts have invalidated the application of zoning regulations. See Nectow v. Cambridge, 277 U.S. at 189; Pittsfield v. Oleksak, 313 Mass. at 555; Barney & Carey Co. v. Milton, 324 Mass. at 445.


Additionally, the relief allowed by the judge below undermines the uniform application of otherwise valid local zoning. See G. L. c. 40A, § 4, inserted by St. 1975, c. 808, § 3 (“Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted”); Everpure Ice Mfg. Co. v. Board of Appeals of Lawrence, 324 Mass. 433, 439 (1949) (“A zoning ordinance is intended to apply uniformly to all property located in a particular district … and the properties of all the owners in that district [must be] subjected to the same restrictions for the common benefit of all”); SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 107 (1984) (“[t]he uniformity requirement is based upon principles of equal treatment: all land in similar circumstances should be treated alike”); KCI Mgmt., Inc. v. Board of Appeal of Boston, 54 Mass. App. Ct. 254, 258 (2002), quoting from Lopes v. Peabody, 417 Mass. 299, 303 (1994) (courts should avoid “a crazy-quilt pattern of the enforceability of a zoning law intended to have uniform applicability”). Many, if not all applications of zoning regulations could be arguably characterized as unnecessary in any particular case. Numerous arguments of that nature are made by citizens to building inspectors and local zoning authorities every year.


The important and difficult balance between the public interest in the integrity of the local land law, with requirements for uniform application of zoning, compared with the relatively minimal restriction upon the landowner’s property rights in the circumstances of this case, does not weigh in favor of determining the frontage exception invalid as applied to the locus. Our conclusion derives additional support here because the owner’s goal can be accomplished without such invalidation.


That portion of the judgment declaring the frontage exception provision in the zoning by-law invalid as applied is vacated, and a new judgment shall enter declaring that provision of the by-law valid as applied. The remainder of the judgment is affirmed.




FOOTNOTES

  1. Amberwood had initially sought relief in the Land Court under G. L. c. 40A, § 14A, from the board’s denial of its request for a variance. The plaintiffs waived their appeal of that decision in the Land Court and, therefore, that appeal is not before this court. Amberwood also included in its count under G. L. c. 240, § 14A, a claim that the by-law provision was generally invalid. That claim of general invalidity has been abandoned and is, therefore, deemed waived.


  2. Facts are essentially taken from the judge’s succinct and thoughtful decision on cross motions for summary judgment. There appears, as between the parties, no genuine dispute as to any of the material facts.


  3. We will call the lot the “locus.” It is a single lot, though shown as parcels C-1 and C-2, collectively, on a sketch plan in the addendum to this opinion.


  4. The locus evolved and changed slightly from a lot that was created in the 1997 subdivision plan. To the extent relevant, for purposes of this decision, the locus is essentially one of four lots created by Amberwood in its 1997 subdivision.


  5. At the time of proceedings before the town with respect to this case, Sanidas was the president and treasurer of Amberwood.


  6. The town challenges reliance by the judge upon such a covenant, asserting that it had never been presented in the proceedings before the local government. We need not further consider the judge’s reference, or the town’s concern, in view of our disposition of this case.


  7. General Laws c. 240, § 14A, as amended through St. 1977, c. 829, § 14, provides, in relevant part:


    “The owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition … . The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not.”


  8. As to application of the statute, the court in Harrison v. Braintree, 355 Mass. at 654-655, said, “We deem appropriate a broad construction of c. 240, § 14A. With court dockets greatly overloaded, access to particular courts of competence in the general field should not be restricted on narrow grounds and the need for attention to nonsubstantive issues should be minimized.” As such, we pay particular attention and accord special deference to the Land Court judge in these cases.


  9. We are not unmindful that laches is inapplicable to an as-applied challenge, see Barney & Carey Co. v. Milton, 324 Mass. at 444, but this is not a situation where a landowner has acquiesced in a direct invasion of its rights, “a usurpation of power which violates rights protected by constitutional provisions.” Id. at 445.


  10. In the design of subdivisions, and in other regulated land matters, the fact that initially different designs and choices were possible does not furnish reason for retroactive design to obviate those earlier choices that have proved to be less desirable. For example, strict time limits within the statutory scheme of the subdivision control law are designed to provide record certainty. See Craig v. Planning Board of Haverhill, 64 Mass. App. Ct. 677, 679 (2005); G. L. c. 41, § 81U. Compare Martin v. Board of Appeals of Yarmouth, 20 Mass. App. Ct. 972 (1985); Maurice Callahan & Sons, Inc. v. Board of Appeals of Lenox, 30 Mass. App. Ct. 36, 40 (1991); Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 (2002) (self-inflicted hardship does not ordinarily constitute “substantial” hardship under G. L. c. 40A, § 10).


  11. The zoning application stated that the applicant owns both the locus and the abutting residential lot (the Sanidas house lot).


3.2. Adjudication and Quasi-Adjudication


Louis J. Fasano et al., Respondents, v. The Board of County Commissioners of Washington County and A.G.S. Development Company,

507 P.2d 23 (Ore. 1973)


 


Edward J. Sullivan, Washington County Counsel, Hillsboro, argued and reargued the cause for petitioners. With him on the briefs were William Bradley Duncan, Asst. County Counsel, Carrell F. Bradley, Joe D. Bailey, and Schwenn, Bradley, Batchelor & Bailey, Hillsboro.


Louis J. Fasano, Portland, argued and reargued the cause for respondents. With him on the briefs were Veatch, Lovett & Stiner, Portland.


Donald C. Ashmanskas, Beaverton, argued the cause for amici curiae on reargument. With him on the briefs were James M. Mattis, Eugene, Merle Long, Albany, and Edward C. Harms, Jr., Springfield, on behalf of the League of Oregon Cities. Also on the briefs were Duane R. Ertsgaard, Salem, Roy E. Adkins, Eugene, Richard Crist, West Linn, Paul Mackey, Portland, and Gary Rueter, McMinnville, on behalf of the Association of Oregon Counties; and Frank L. Whitaker, Portland, on behalf of Oregon Chapter, American Institute of Planners.


 


Howell, Justice.


 


The plaintiffs, homeowners in Washington county, unsuccessfully opposed a zone change before the Board of County Commissioners of Washington County. Plaintiffs applied for and received a writ of review of the action of the commissioners allowing the change. The trial court found in favor of plaintiffs, disallowed the zone change, and reversed the commissioners’ order. The Court of Appeals affirmed, 489 P.2d 693 (1971), and this court granted review.


The defendants are the Board of County Commissioners and A.G.S. Development Company. A.G.S., the owner of 32 acres which had been zoned R-7 (Single Family Residential), applied for a zone change to P-R (Planned Residential), which allows for the construction of a mobile home park. The change failed to receive a majority vote of the Planning Commission. The Board of County Commissioners approved the change and found, among other matters, that the change allows for “increased densities and different types of housing to meet the needs of urbanization over that allowed by the existing zoning.”


The trial court, relying on its interpretation of Roseta v. County of Washington, 254 Or. 161, 458 P.2d 405, 40 A.L.R.3d 364 (1969), reversed the order of the commissioners because the commissioners had not shown any change in the character of the neighborhood which would justify the rezoning. The Court of Appeals affirmed for the same reason, but added the additional ground that the defendants failed to show that the change was consistent with the comprehensive plan for Washington county.


According to the briefs, the comprehensive plan of development for Washington county was adopted in 1959 and included classifications in the county for residential, neighborhood commercial, retail commercial, general commercial, industrial park and light industry, general and heavy industry, and agricultural areas.


The land in question, which was designated “residential” by the comprehensive plan, was zoned R-7, Single Family Residential.


Subsequent to the time the comprehensive plan was adopted, Washington county established a Planned Residential (P-R) zoning classification in 1963. The P-R classification was adopted by ordinance and provided that a planned residential unit development could be established and should include open space for utilities, access, and recreation; should not be less than 10 acres in size; and should be located in or adjacent to a residential zone. The P-R zone adopted by the 1963 ordinance is of the type known as a “floating zone,” so-called because the ordinance creates a zone classification authorized for future use but not placed on the zoning map until its use at a particular location is approved by the governing body. The R-7 classification for the 32 acres continued until April 1970 when the classification was changed to P-R to permit the defendant A.G.S. to construct the mobile home park on the 32 acres involved.


The defendants argue that (1) the action of the county commissioners approving the change is presumptively valid, requiring plaintiffs to show that the commissioners acted arbitrarily in approving the zone change; (2) it was not necessary to show a change of conditions in the area before a zone change could be accomplished; and (3) the change from R-7 to P-R was in accordance with the Washington county comprehensive plan.


We granted review in this case to consider the questions — by what standards does a county commission exercise its authority in zoning matters; who has the burden of meeting those standards when a request for change of zone is made; and what is the scope of court review of such actions?


Any meaningful decision as to the proper scope of judicial review of a zoning decision must start with a characterization of the nature of that decision. The majority of jurisdictions state that a zoning ordinance is a legislative act and is thereby entitled to presumptive validity. This court made such a characterization of zoning decisions in Smith v. County of Washington, 241 Or. 380, 406 P.2d 545 (1965):


“Inasmuch as ORS 215.110 specifically grants to the governing board of the county the power to amend zoning ordinances, a challenged amendment is a legislative act and is clothed with a presumption in its favor. Jehovah’s Witnesses v. Mullen et al., 214 Or. 281, 292, 330 P.2d 5, 74 A.L.R.2d 347 (1958), appeal dismissed and cert. denied, 359 U.S. 436, 79 S.Ct. 940, 3 L.Ed.2d 932 (1959).” 241 Or. at 383, 406 P.2d at 547.


However, in Smith an exception to the presumption was found and the zoning held invalid. Furthermore, the case cited by the Smith court, Jehovah’s Witnesses v. Mullen et al., supra, at least at one point viewed the contested zoning in that case as an administrative as opposed to legislative act.


At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of separation of powers. Local and small decision groups are simply not the equivalent in all respects of state and national legislatures. There is a growing judicial recognition of this fact of life:


“It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government.” Ward v. Village of Skokie, 26 Ill.2d 415, 186 N.E.2d 529, 533 (1962) (Klingbiel, J., specially concurring).


The Supreme Court of Washington, in reviewing a rezoning decision, recently stated:


“Whatever descriptive characterization may be otherwise attached to the role or function of the planning commission in zoning procedures, e.g., advisory, recommendatory, investigatory, administrative or legislative, it is manifest * * * that it is a public agency, * * * a principle [sic] and statutory duty of which is to conduct public hearings in specified planning and zoning matters, enter findings of fact — often on the basis of disputed facts — and make recommendations with reasons assigned thereto. Certainly, in its role as a hearing and fact-finding tribunal, the planning commission’s function more nearly than not partakes of the nature of an administrative, quasi-judicial proceeding, * * *.” Chrobuck v. Snohomish County, 78 Wash.2d 884, 480 P.2d 489, 495-496 (1971).


Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test. An illustration of an exercise of legislative authority is the passage of the ordinance by the Washington County Commission in 1963 which provided for the formation of a planned residential classification to be located in or adjacent to any residential zone. An exercise of judicial authority is the county commissioners’ determination in this particular matter to change the classification of A.G.S. Development Company’s specific piece of property. The distinction is stated, as follows, in Comment, Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130 (1972):


”* * * Basically, this test involves the determination of whether action produces a general rule or policy which is applicable to an open class of individuals, interest, or situations, or whether it entails the application of a general rule or policy to specific individuals, interests, or situations. If the former determination is satisfied, there is legislative action; if the latter determination is satisfied, the action is judicial.” 33 Ohio St.L.J. at 137.


We reject the proposition that judicial review of the county commissioners’ determination to change the zoning of the particular property in question is limited to a determination whether the change was arbitrary and capricious.


In order to establish a standard of review, it is necessary to delineate certain basic principles relating to land use regulation.


The basic instrument for county or municipal land use planning is the “comprehensive plan.” Haar, In Accordance with a Comprehensive Plan, 68 Harv.L.Rev. 1154 (1955); 1 Yokley, Zoning Law and Practice, § 3-2 (1965); 1 Rathkopf, The Law of Zoning and Planning, § 9-1 (3d ed. 1969). The plan has been described as a general plan to control and direct the use and development of property in a municipality. Nowicki v. Planning and Zoning Board, 148 Conn. 492, 172 A.2d 386, 389 (1961).


In Oregon the county planning commission is required by ORS 215.050 to adopt a comprehensive plan for the use of some or all of the land in the county. Under ORS 215.110(1), after the comprehensive plan has been adopted, the planning commission recommends to the governing body of the county the ordinances necessary to “carry out” the comprehensive plan. The purpose of the zoning ordinances, both under our statute and the general law of land use regulation, is to “carry out” or implement the comprehensive plan. 1 Anderson, American Law of Zoning, § 1.12 (1968). Although we are aware of the analytical distinction between zoning and planning, it is clear that under our statutes the plan adopted by the planning commission and the zoning ordinances enacted by the county governing body are closely related; both are intended to be parts of a single integrated procedure for land use control. The plan embodies policy determinations and guiding principles; the zoning ordinances provide the detailed means of giving effect to those principles.


ORS 215.050 states county planning commissions “shall adopt and may from time to time revise a comprehensive plan.” In a hearing of the Senate Committee on Local Government, the proponents of ORS 215.050 described its purpose as follows:


”* * * The intent here is to require a basic document, geared into population, land use, and economic forecasts, which should be the basis of any zoning or other regulations to be adopted by the county. * * *”1


In addition, ORS 215.055 provides:


“215.055 Standards for plan. (1) The plan and all legislation and regulations authorized by ORS 215.010 to 215.233 shall be designed to promote the public health, safety and general welfare and shall be based on the following considerations, among others: The various characteristics of the various areas in the county, the suitability of the areas for particular land uses and improvements, the land uses and improvements in the areas, trends in land improvement, density of development, property values, the needs of economic enterprises in the future development of the areas, needed access to particular sites in the areas, natural resources of the county and prospective needs for development thereof, and the public need for healthful, safe, aesthetic surroundings and conditions.”


We believe that the state legislature has conditioned the county’s power to zone upon the prerequisite that the zoning attempt to further the general welfare of the community through consciousness, in a prospective sense, of the factors mentioned above. In other words, except as noted later in this opinion, it must be proved that the change is in conformance with the comprehensive plan.


In proving that the change is in conformance with the comprehensive plan in this case, the proof, at a minimum, should show (1) there is a public need for a change of the kind in question, and (2) that need will be best served by changing the classification of the particular piece of property in question as compared with other available property.


In the instant case the trial court and the Court of Appeals interpreted prior decisions of this court as requiring the county commissions to show a change of conditions within the immediate neighborhood in which the change was sought since the enactment of the comprehensive plan, or a mistake in the comprehensive plan as a condition precedent to the zone change.


In Smith v. Washington County, supra, the land in question was designated residential under the comprehensive plan, and the county commissioners enacted an amendatory ordinance changing the classification to manufacturing. This court held that the change constituted spot zoning and was invalid. We stated:


”* * * Once a [zoning scheme] is adopted, changes in it should be made only when such changes are consistent with the over-all objectives of the plan and in keeping with changes in the character of the area or neighborhood to be covered thereby. * * *” (Emphasis added) 241 Or. at 384, 406 P.2d at 547.


In Roseta v. Washington County, supra, the land in question was classified as residential under the comprehensive plan and had been originally zoned as R-10, Single Family Residential. The county commissioners granted a zone change to A-1, Duplex Residential. We held that the commissioners had not sustained the burden of proving that the change was consistent with the comprehensive plan and reversed the order allowing the zone change. In regard to defendants’ argument that the change was consistent with the comprehensive plan because the plan designated the areas as “residential” and the term included both single family dwellings and duplex residences, we stated:


”* * * However, the ordinance established a distinction between the two types of use by classifying one area as R-10 and another area as A-1. It must be assumed that the Board had some purpose in making a distinction between these two classifications. It was for defendant to prove that this distinction was not valid or that the change in the character of the use of the * * * parcel was not inconsistent with the comprehensive plan.” 254 Or. at 169, 458 P.2d 405, at 409.


The instant case could be distinguished from Roseta on the basis that we are involved with a floating zone which was not before the court in Roseta.2


However, Roseta should not be interpreted as establishing a rule that a physical change of circumstances within the rezoned neighborhood is the only justification for rezoning. The county governing body is directed by ORS 215.055 to consider a number of other factors when enacting zoning ordinances, and the list there does not purport to be exclusive. The important issues, as Roseta recognized, are compliance with the statutory directive and consideration of the proposed change in light of the comprehensive plan.


Because the action of the commission in this instance is an exercise of judicial authority, the burden of proof should be placed, as is usual in judicial proceedings, upon the one seeking change. The more drastic the change, the greater will be the burden of showing that it is in conformance with the comprehensive plan as implemented by the ordinance, that there is a public need for the kind of change in question, and that the need is best met by the proposal under consideration. As the degree of change increases, the burden of showing that the potential impact upon the area in question was carefully considered and weighed will also increase. If other areas have previously been designated for the particular type of development, it must be shown why it is necessary to introduce it into an area not previously contemplated and why the property owners there should bear the burden of the departure.3


Although we have said in Roseta that zoning changes may be justified without a showing of a mistake in the original plan or ordinance, or of changes in the physical characteristics of an affected area, any of these factors which are present in a particular case would, of course, be relevant. Their importance would depend upon the nature of the precise change under consideration.


By treating the exercise of authority by the commission in this case as the exercise of judicial rather than of legislative authority and thus enlarging the scope of review on appeal, and by placing the burden of the above level of proof upon the one seeking change, we may lay the court open to criticism by legal scholars who think it desirable that planning authorities be vested with the ability to adjust more freely to changed conditions. However, having weighed the dangers of making desirable change more difficult against the dangers of the almost irresistible pressures that can be asserted by private economic interests on local government, we believe that the latter dangers are more to be feared.


What we have said above is necessarily general, as the approach we adopt contains no absolute standards or mechanical tests. We believe, however, that it is adequate to provide meaningful guidance for local governments making zoning decisions and for trial courts called upon to review them. With future cases in mind, it is appropriate to add some brief remarks on questions of procedure. Parties at the hearing before the county governing body are entitled to an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the matter — i.e., having had no pre-hearing or ex parte contacts concerning the question at issue — and to a record made and adequate findings executed. Comment, Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130-143 (1972).


When we apply the standards we have adopted to the present case, we find that the burden was not sustained before the commission. The record now before us is insufficient to ascertain whether there was a justifiable basis for the decision. The only evidence in the record, that of the staff report of the Washington County Planning Department, is too conclusory and superficial to support the zoning change. It merely states:


“The staff finds that the requested use does conform to the residential designation of the Plan of Development. It further finds that the proposed use reflects the urbanization of the County and the necessity to provide increased densities and different types of housing to meet the needs of urbanization over that allowed by the existing zoning. * * *”


Such generalizations and conclusions, without any statement of the facts on which they are based, are insufficient to justify a change of use. Moreover, no portions of the comprehensive plan of Washington County are before us, and we feel it would be improper for us to take judicial notice of the plan without at least some reference to its specifics by counsel.


As there has not been an adequate showing that the change was in accord with the plan, or that the factors listed in ORS 215.055 were given proper consideration, the judgment is affirmed.


 


Bryson, Justice (specially concurring).


 


The basic facts in this case exemplify the prohibitive cost and extended uncertainty to a homeowner when a governmental body decides to change or modify a zoning ordinance or comprehensive plan affecting such owner’s real property.


This controversy has proceeded through the following steps:


1. The respondent opposed the zone change before the Washington County Planning Department and Planning Commission.


2. The County Commission, after a hearing, allowed the change.


3. The trial court reversed (disallowed the change).


4. The Court of Appeals affirmed the trial court.


5. We ordered reargument and additional briefs.


6. This court affirmed.


The principal respondent in this case, Fasano, happens to be an attorney at law, and his residence is near the proposed mobile home park of the petitioner A.G.S. No average homeowner or small business enterprise can afford a judicial process such as described above nor can a judicial system cope with or endure such a process in achieving justice. The number of such controversies is ascending.


In this case the majority opinion, in which I concur, adopts some sound rules to enable county and municipal planning commissions and governing bodies, as well as trial courts, to reach finality in decision. However, the procedure is no panacea and it is still burdensome.


It is solely within the domain of the legislative branch of government to devise a new and simplified statutory procedure to expedite finality of decision.




FOOTNOTES

  1. Hearing on Senate Bill 129 before the Senate Committee on Local Government, 52nd Legislative Assembly, February 14, 1963.


  2. Even in Maryland, the chief exponent of the change or mistake rule, the courts have not required that there be a showing of changed conditions or mistake in the original zoning as a condition precedent to granting a zone change when a floating zone is involved. Bigenho v. Montgomery County Council, 248 Md. 386, 237 A.2d 53 (1968); Bayer v. Siskind, 247 Md. 116, 230 A.2d 316 (1967); Board of County Com’rs of Howard County v. Tipton, 244 Md. 77, 222 A.2d 701 (1966); Bujno v. Montgomery County Council, 243 Md. 110, 220 A.2d 126 (1966); Knudsen v. Montgomery County Council, 241 Md. 436, 217 A.2d 97 (1966); Beall v. Montgomery County Council, 240 Md. 77, 212 A.2d 751 (1965); Huff v. Board of Zoning Appeals, 214 Md. 48, 133 A.2d 83 (1957).


  3. For example, if an area is designated by the plan as generally appropriate for residential development, the plan may also indicate that some high-density residential development within the area is to be anticipated, without specifying the exact location at which that development is to take place. The comprehensive plan might provide that its goal for residential development is to assure that residential areas are healthful, pleasant and safe places in which to live. The plan might also list the following policies which, among others, are to be pursued in achieving that goal:


    1. High-density residential areas should be located close to the urban core area.


    2. Residential neighborhoods should be protected from any land use activity involving an excessive level of noise, pollution or traffic volume.


    3. High trip-generating multiple family units should have ready access to arterial or collector streets.


    4. A variety of living areas and housing types should be provided appropriate to the needs of the special and general groups they are to serve.


    5. Residential development at urban densities should be within planned sewer and water service areas and where other utilities can be adequately provided.


    Under such a hypothetical plan, property originally zoned for single family dwellings might later be rezoned for duplexes, for garden apartments, or for high-rise apartment buildings. Each of these changes could be shown to be consistent with the plan. Although in addition we would require a showing that the county governing body found a bona fide need for a zone change in order to accommodate new high-density development which at least balanced the disruption shown by the challengers, that requirement would be met in most instances by a record which disclosed that the governing body had considered the facts relevant to this question and exercised its judgment in good faith. However, these changes, while all could be shown to be consistent with the plan, could be expected to have differing impacts on the surrounding area, depending on the nature of that area. As the potential impact on the area in question increases, so will the necessity to show a justification.


Board of County Commissioners of Brevard County, Florida v. Jack R. Snyder,

627 So.2d 469 (1993)



Robert D. Guthrie, County Atty., and Eden Bentley, Asst. County Atty., Melbourne, for petitioner.


Frank J. Griffith, Jr., Cianfrogna, Telfer, Reda & Faherty, P.A., Titusville, for respondents.


Denis Dean and Jonathan A. Glogau, Asst. Attys. Gen., Tallahassee, amicus curiae, for Atty. Gen., State of FL.


Nancy Stuparich, Asst. Gen. Counsel, and Jane C. Hayman, Deputy Gen. Counsel, Tallahassee, amicus curiae, for FL League of Cities, Inc.


Paul R. Gougelman, III, and Maureen M. Matheson, Reinman, Harrell, Graham, Mitchell & Wattwood, P.A., Melbourne, amicus curiae, for Space Coast League of Cities, Inc., City of Melbourne, and Town of Indialantic.


Richard E. Gentry, FL Home Builders Ass’n, and Robert M. Rhodes and Cathy M. Sellers, Steel, Hector and Davis, Tallahassee, amicus curiae, for FL Home Builders Ass’n.


David La Croix, Pennington, Wilkinson & Dunlap, P.A., and William J. Roberts, Roberts and Eagan, P.A., Tallahassee, amicus curiae, for FL Ass’n of Counties.


David J. Russ and Karen Brodeen, Asst. Gen. Counsels, Tallahassee, amicus curiae, for FL Dept. of Community Affairs.


Richard Grosso, Legal Director, Tallahassee, and C. Allen Watts, Cobb, Cole and Bell, Daytona Beach, amicus curiae, for 1000 Friends of FL.


Neal D. Bowen, County Atty., Kissimmee, amicus curiae, for Osceola County.


M. Stephen Turner and David K. Miller, Broad and Cassel, Tallahassee, amicus curiae, for Monticello Drug Co.


John J. Copelan, Jr., County Atty., and Barbara S. Monahan, Asst. County Atty. for Broward County, Fort Lauderdale, and Emeline Acton, County Atty. for Hillsborough County, Tampa, amici curiae, for Broward County, Hillsborough County and FL Ass’n of County Attys., Inc.


Thomas G. Pelham, Holland & Knight, Tallahassee, amicus curiae, pro se.


 


Grimes, Justice.


 


We review Snyder v. Board of County Commissioners, 595 So.2d 65 (Fla. 5th DCA 1991), because of its conflict with Schauer v. City of Miami Beach, 112 So.2d 838 (Fla. 1959); City of Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA 1984), review denied, 469 So.2d 749 (Fla. 1985); and Palm Beach County v. Tinnerman, 517 So.2d 699 (Fla. 4th DCA 1987), review denied, 528 So.2d 1183 (Fla. 1988). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. Jack and Gail Snyder owned a one-half acre parcel of property on Merritt Island in the unincorporated area of Brevard County. The property is zoned GU (general use) which allows construction of a single-family residence. The Snyders filed an application to rezone their property to the RU-2-15 zoning classification which allows the construction of fifteen units per acre. The area is designated for residential use under the 1988 Brevard County Comprehensive Plan Future Land Use Map. Twenty-nine zoning classifications are considered potentially consistent with this land use designation, including both the GU and the RU-2-15 classifications.


After the application for rezoning was filed, the Brevard County Planning and Zoning staff reviewed the application and completed the county’s standard “rezoning review worksheet.” The worksheet indicated that the proposed multifamily use of the Snyders’ property was consistent with all aspects of the comprehensive plan except for the fact that it was located in the one-hundred-year flood plain in which a maximum of only two units per acre was permitted. For this reason, the staff recommended that the request be denied.


At the planning and zoning board meeting, the county planning and zoning director indicated that when the property was developed the land elevation would be raised to the point where the one-hundred-year-flood plain restriction would no longer be applicable. Thus, the director stated that the staff no longer opposed the application. The planning and zoning board voted to approve the Snyders’ rezoning request.


When the matter came before the board of county commissioners, Snyder stated that he intended to build only five or six units on the property. However, a number of citizens spoke in opposition to the rezoning request. Their primary concern was the increase in traffic which would be caused by the development. Ultimately, the commission voted to deny the rezoning request without stating a reason for the denial.


The Snyders filed a petition for certiorari in the circuit court. Three circuit judges, sitting en banc, reviewed the petition and denied it by a two-to-one decision. The Snyders then filed a petition for certiorari in the Fifth District Court of Appeal.


The district court of appeal acknowledged that zoning decisions have traditionally been considered legislative in nature. Therefore, courts were required to uphold them if they could be justified as being “fairly debatable.” Drawing heavily on Fasano v. Board of County Commissioners, 264 Or. 574, 507 P.2d 23 (1973), however, the court concluded that, unlike initial zoning enactments and comprehensive rezonings or rezonings affecting a large portion of the public, a rezoning action which entails the application of a general rule or policy to specific individuals, interests, or activities is quasi-judicial in nature. Under the latter circumstances, the court reasoned that a stricter standard of judicial review of the rezoning decision was required. The court went on to hold:


(4) Since a property owner’s right to own and use his property is constitutionally protected, review of any governmental action denying or abridging that right is subject to close judicial scrutiny. Effective judicial review, constitutional due process and other essential requirements of law, all necessitate that the governmental agency (by whatever name it may be characterized) applying legislated land use restrictions to particular parcels of privately owned lands, must state reasons for action that denies the owner the use of his land and must make findings of fact and a record of its proceedings, sufficient for judicial review of: the legal sufficiency of the evidence to support the findings of fact made, the legal sufficiency of the findings of fact supporting the reasons given and the legal adequacy, under applicable law (i.e., under general comprehensive zoning ordinances, applicable state and case law and state and federal constitutional provisions) of the reasons given for the result of the action taken.


(5) The initial burden is upon the landowner to demonstrate that his petition or application for use of privately owned lands, (rezoning, special exception, conditional use permit, variance, site plan approval, etc.) complies with the reasonable procedural requirements of the ordinance and that the use sought is consistent with the applicable comprehensive zoning plan. Upon such a showing the landowner is presumptively entitled to use his property in the manner he seeks unless the opposing governmental agency asserts and proves by clear and convincing evidence that a specifically stated public necessity requires a specified, more restrictive, use. After such a showing the burden shifts to the landowner to assert and prove that such specified more restrictive land use constitutes a taking of his property for public use for which he is entitled to compensation under the taking provisions of the state or federal constitutions.


Snyder v. Board of County Commissioners, 595 So.2d at 81 (footnotes omitted).


Applying these principles to the facts of the case, the court found (1) that the Snyders’ petition for rezoning was consistent with the comprehensive plan; (2) that there was no assertion or evidence that a more restrictive zoning classification was necessary to protect the health, safety, morals, or welfare of the general public; and (3) that the denial of the requested zoning classification without reasons supported by facts was, as a matter of law, arbitrary and unreasonable. The court granted the petition for certiorari.


Before this Court, the county contends that the standard of review for the county’s denial of the Snyders’ rezoning application is whether or not the decision was fairly debatable. The county further argues that the opinion below eliminates a local government’s ability to operate in a legislative context and impairs its ability to respond to public comment. The county refers to Jennings v. Dade County, 589 So.2d 1337 (Fla. 3d DCA 1991), review denied, 598 So.2d 75 (Fla. 1992), for the proposition that if its rezoning decision is quasi-judicial, the commissioners will be prohibited from obtaining community input by way of ex parte communications from its citizens. In addition, the county suggests that the requirement to make findings in support of its rezoning decision will place an insurmountable burden on the zoning authorities. The county also asserts that the salutary purpose of the comprehensive plan to provide controlled growth will be thwarted by the court’s ruling that the maximum use permitted by the plan must be approved once the rezoning application is determined to be consistent with it.


The Snyders respond that the decision below should be upheld in all of its major premises. They argue that the rationale for the early decisions that rezonings are legislative in nature has been changed by the enactment of the Growth Management Act. Thus, in order to ensure that local governments follow the principles enunciated in their comprehensive plans, it is necessary for the courts to exercise stricter scrutiny than would be provided under the fairly debatable rule. The Snyders contend that their rezoning application was consistent with the comprehensive plan. Because there are no findings of fact or reasons given for the denial by the board of county commissioners, there is no basis upon which the denial could be upheld. Various amici curiae have also submitted briefs in support of their several positions.


Historically, local governments have exercised the zoning power pursuant to a broad delegation of state legislative power subject only to constitutional limitations. Both federal and state courts adopted a highly deferential standard of judicial review early in the history of local zoning. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), the United States Supreme Court held that “[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” 272 U.S. at 388, 47 S.Ct. at 118. This Court expressly adopted the fairly debatable principle in City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941).


Inhibited only by the loose judicial scrutiny afforded by the fairly debatable rule, local zoning systems developed in a markedly inconsistent manner. Many land use experts and practitioners have been critical of the local zoning system. Richard Babcock deplored the effect of “neighborhoodism” and rank political influence on the local decision-making process. Richard F. Babcock, The Zoning Game (1966). Mandelker and Tarlock recently stated that “zoning decisions are too often ad hoc, sloppy and self-serving decisions with well-defined adverse consequences without off-setting benefits.” Daniel R. Mandelker and A. Dan Tarlock, Shifting the Presumption of Constitutionality in Land-Use Law, 24 Urb.Law. 1, 2 (1992).


Professor Charles Harr, a leading proponent of zoning reform, was an early advocate of requiring that local land use regulation be consistent with a legally binding comprehensive plan which would serve long range goals, counteract local pressures for preferential treatment, and provide courts with a meaningful standard of review. Charles M. Harr, “In Accordance With A Comprehensive Plan,” 68 Harv.L.Rev. 1154 (1955). In 1975, the American Law Institute adopted the Model Land Development Code, which provided for procedural and planning reforms at the local level and increased state participation in land use decision-making for developments of regional impact and areas of critical state concern.


Reacting to the increasing calls for reform, numerous states have adopted legislation to change the local land use decision-making process. As one of the leaders of this national reform, Florida adopted the Local Government Comprehensive Planning Act of 1975. Ch. 75-257, Laws of Fla. This law was substantially strengthened in 1985 by the Growth Management Act. Ch. 85-55, Laws of Fla.


Pursuant to the Growth Management Act, each county and municipality is required to prepare a comprehensive plan for approval by the Department of Community Affairs. The adopted local plan must include “principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development” of the local government’s jurisdictional area. Section 163.3177(1), Fla. Stat. (1991). At the minimum, the local plan must include elements covering future land use; capital improvements generally; sanitary sewer, solid waste, drainage, potable water, and natural ground water aquifer protection specifically; conservation; recreation and open space; housing; traffic circulation; intergovernmental coordination; coastal management (for local government in the coastal zone); and mass transit (for local jurisdictions with 50,000 or more people). Id., § 163.3177(6).


Of special relevance to local rezoning actions, the future land use plan element of the local plan must contain both a future land use map and goals, policies, and measurable objectives to guide future land use decisions. This plan element must designate the “proposed future general distribution, location, and extent of the uses of land” for various purposes. Id., § 163.3177(6)(a). It must include standards to be utilized in the control and distribution of densities and intensities of development. In addition, the future land use plan must be based on adequate data and analysis concerning the local jurisdiction, including the projected population, the amount of land needed to accommodate the estimated population, the availability of public services and facilities, and the character of undeveloped land. Id., § 163.3177(6)(a).


The local plan must be implemented through the adoption of land development regulations that are consistent with the plan. Id. § 163.3202. In addition, all development, both public and private, and all development orders approved by local governments must be consistent with the adopted local plan. Id., § 163.3194(1)(a). Section 163.3194(3), Florida Statutes (1991), explains consistency as follows:


(a) A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.


Section 163.3164, Florida Statutes (1991), reads in pertinent part:


(6) “Development order” means any order granting, denying, or granting with conditions an application for a development permit.


(7) “Development permit” includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.


Because an order granting or denying rezoning constitutes a development order and development orders must be consistent with the comprehensive plan, it is clear that orders on rezoning applications must be consistent with the comprehensive plan.


The first issue we must decide is whether the Board’s action on Snyder’s rezoning application was legislative or quasi-judicial. A board’s legislative action is subject to attack in circuit court. Hirt v. Polk County Bd. of County Comm’rs, 578 So.2d 415 (Fla. 2d DCA 1991). However, in deference to the policy-making function of a board when acting in a legislative capacity, its actions will be sustained as long as they are fairly debatable. Nance v. Town of Indialantic, 419 So.2d 1041 (Fla. 1982). On the other hand, the rulings of a board acting in its quasi-judicial capacity are subject to review by certiorari and will be upheld only if they are supported by substantial competent evidence. De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957).


Enactments of original zoning ordinances have always been considered legislative. Gulf & Eastern Dev. Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla. 1978); County of Pasco v. J. Dico, Inc., 343 So.2d 83 (Fla. 2d DCA 1977). In Schauer v. City of Miami Beach, this Court held that the passage of an amending zoning ordinance was the exercise of a legislative function. 112 So.2d at 839. However, the amendment in that case was comprehensive in nature in that it effected a change in the zoning of a large area so as to permit it to be used as locations for multiple family buildings and hotels. Id. In City of Jacksonville Beach v. Grubbs and Palm Beach County v. Tinnerman, the district courts of appeal went further and held that board action on specific rezoning applications of individual property owners was also legislative. Grubbs, 461 So.2d at 163; Tinnerman, 517 So.2d at 700.


It is the character of the hearing that determines whether or not board action is legislative or quasi-judicial. Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.2d 648 (Fla. 3d DCA 1982). Generally speaking, legislative action results in the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy. Carl J. Peckingpaugh, Jr., Comment, Burden of Proof in Land Use Regulations: A Unified Approach and Application to Florida, 8 Fla.St.U.L.Rev. 499, 504 (1980). In West Flagler Amusement Co. v. State Racing Commission, 122 Fla. 222, 225, 165 So. 64, 65 (1935), we explained:


A judicial or quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation to past transactions. On the other hand, a quasi-legislative or administrative order prescribes what the rule or requirement of administratively determined duty shall be with respect to transactions to be executed in the future, in order that same shall be considered lawful. But even so, quasi-legislative and quasi-executive orders, after they have already been entered, may have a quasi-judicial attribute if capable of being arrived at and provided by law to be declared by the administrative agency only after express statutory notice, hearing and consideration of evidence to be adduced as a basis for the making thereof.


Applying this criterion, it is evident that comprehensive rezonings affecting a large portion of the public are legislative in nature. However, we agree with the court below when it said:


[R]ezoning actions which have an impact on a limited number of persons or property owners, on identifiable parties and interests, where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as policy application, rather than policy setting, are in the nature of … quasi-judicial action… .


Snyder, 595 So.2d at 78. Therefore, the board’s action on Snyder’s application was in the nature of a quasi-judicial proceeding and properly reviewable by petition for certiorari.1


We also agree with the court below that the review is subject to strict scrutiny. In practical effect, the review by strict scrutiny in zoning cases appears to be the same as that given in the review of other quasi-judicial decisions. See Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d 996 (Fla.2d DCA 1993) (The term “strict scrutiny” arises from the necessity of strict compliance with comprehensive plan.). This term as used in the review of land use decisions must be distinguished from the type of strict scrutiny review afforded in some constitutional cases. Compare Snyder v. Board of County Comm’rs, 595 So.2d 65, 75-76 (Fla. 5th DCA 1991) (land use), and Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987), review denied, 529 So.2d 693 (Fla. 1988), and review denied, 529 So.2d 694 (Fla. 1988) (land use), with In re Estate of Greenberg, 390 So.2d 40, 42-43 (Fla. 1980) (general discussion of strict scrutiny review in context of fundamental rights), appeal dismissed, 450 U.S. 961, 101 S.Ct. 1475, 67 L.Ed.2d 610 (1981), Florida High Sch. Activities Ass’n v. Thomas, 434 So.2d 306 (Fla. 1983) (equal protection), and Department of Revenue v. Magazine Publishers of America, Inc., 604 So.2d 459 (Fla. 1992) (First Amendment).


At this point, we depart from the rationale of the court below. In the first place, the opinion overlooks the premise that the comprehensive plan is intended to provide for the future use of land, which contemplates a gradual and ordered growth. See City of Jacksonville Beach, 461 So.2d at 163, in which the following statement from Marracci v. City of Scappoose, 552 P.2d 552, 553 (Or. Ct. App. 1976), was approved:


[A] comprehensive plan only establishes a long-range maximum limit on the possible intensity of land use; a plan does not simultaneously establish an immediate minimum limit on the possible intensity of land use. The present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan.


Even where a denial of a zoning application would be inconsistent with the plan, the local government should have the discretion to decide that the maximum development density should not be allowed provided the governmental body approves some development that is consistent with the plan and the government’s decision is supported by substantial, competent evidence.


Further, we cannot accept the proposition that once the landowner demonstrates that the proposed use is consistent with the comprehensive plan, he is presumptively entitled to this use unless the opposing governmental agency proves by clear and convincing evidence that specifically stated public necessity requires a more restricted use. We do not believe that a property owner is necessarily entitled to relief by proving consistency when the board action is also consistent with the plan. As noted in Lee County v. Sunbelt Equities II, Limited Partnership:


[A]bsent the assertion of some enforceable property right, an application for rezoning appeals at least in part to local officials’ discretion to accept or reject the applicant’s argument that change is desirable. The right of judicial review does not ipso facto ease the burden on a party seeking to overturn a decision made by a local government, and certainly does not confer any property-based right upon the owner where none previously existed.


… .


Moreover, when it is the zoning classification that is challenged, the comprehensive plan is relevant only when the suggested use is inconsistent with that plan. Where any of several zoning classifications is consistent with the plan, the applicant seeking a change from one to the other is not entitled to judicial relief absent proof the status quo is no longer reasonable. It is not enough simply to be “consistent”; the proposed change cannot be inconsistent, and will be subject to the “strict scrutiny” of Machado to insure this does not happen.


619 So.2d at 1005-06.


This raises a question of whether the Growth Management Act provides any comfort to the landowner when the denial of the rezoning request is consistent with the comprehensive plan. It could be argued that the only recourse is to pursue the traditional remedy of attempting to prove that the denial of the application was arbitrary, discriminatory, or unreasonable. Burritt v. Harris, 172 So.2d 820 (Fla. 1965); City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423 (Fla. 2d DCA 1974). Yet, the fact that a proposed use is consistent with the plan means that the planners contemplated that that use would be acceptable at some point in the future. We do not believe the Growth Management Act was intended to preclude development but only to insure that it proceed in an orderly manner.


Upon consideration, we hold that a landowner seeking to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance. At this point, the burden shifts to the governmental board to demonstrate that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose. In effect, the landowners’ traditional remedies will be subsumed within this rule, and the board will now have the burden of showing that the refusal to rezone the property is not arbitrary, discriminatory, or unreasonable. If the board carries its burden, the application should be denied.


While they may be useful, the board will not be required to make findings of fact. However, in order to sustain the board’s action, upon review by certiorari in the circuit court it must be shown that there was competent substantial evidence presented to the board to support its ruling. Further review in the district court of appeal will continue to be governed by the principles of City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982).


Based on the foregoing, we quash the decision below and disapprove City of Jacksonville Beach v. Grubbs and Palm Beach County v. Tinnerman, to the extent they are inconsistent with this opinion. However, in the posture of this case, we are reluctant to preclude the Snyders from any avenue of relief. Because of the possibility that conditions have changed during the extended lapse of time since their original application was filed, we believe that justice would be best served by permitting them to file a new application for rezoning of the property. The application will be without prejudice of the result reached by this decision and will allow the process to begin anew according to the procedure outlined in our opinion.


It is so ordered.



BARKETT, C.J., and OVERTON, McDONALD, KOGAN and HARDING, JJ., concur.



Shaw,J., dissents.




FOOTNOTES

  1. One or more of the amicus briefs suggests that Snyder’s remedy was to bring a de novo action in circuit court pursuant to section 163.3215, Florida Statutes (1991). However, in Parker v. Leon County, 627 So.2d 476 (Fla. 1993), we explained that this statute only provides a remedy for third parties to challenge the consistency of development orders.


3.3. Procedure


Frank S. Griswold v. City of Homer,

925 P.2d 1015 (Alaska 1996)



Frank S. Griswold, Homer, pro se.


Gordon J. Tans, Perkins Coie, Anchorage, for Appellee.



Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.


 


Eastaugh, Justice.


 


 


I. INTRODUCTION


 


In 1992 the Homer City Council adopted Ordinance 92-18 amending Homer’s zoning and planning code to allow motor vehicle sales and services on thirteen lots in Homer’s Central Business District. Frank Griswold claims Ordinance 92-18 is invalid because it constitutes spot zoning. We affirm the superior court’s rejection of that claim. Griswold also claims the Ordinance is invalid because a council member with a personal interest improperly participated in its adoption. We hold that the council member should not have participated. We consequently remand so the superior court can determine whether that participation invalidates the Ordinance. Finally, we hold that Griswold is a public interest litigant who cannot be assessed the City’s attorney’s fees and court costs.


… .


 


B. Claim of Conflict of Interest


 


Homer City Council member Brian Sweiven owned one of the thirteen lots in the reclassified area. He was one of nine owners directly affected by Ordinance 92-18. It appears that it was Sweiven who first recommended to the commission that the rezone apply only to Main Street. An article in the Homer News was titled “Sweiven proposes commercial zoning for downtown Homer.” The article refers to the idea of rezoning Main Street as “Sweiven’s proposal.” Griswold alleges that Sweiven had a disqualifying conflict of interest under Homer municipal law and that his participation in the adoption of Ordinance 92-18 therefore invalidates the Ordinance, even though Sweiven’s vote was not necessary for passage. The superior court found that Sweiven did not have a disqualifying conflict of interest and that even if he had, his participation in the deliberations and vote would not invalidate Ordinance 92-18.


 


1. Was there a conflict of interest?


 


Homer City Code 1.24.040(g) states:


A member of the Council shall declare a substantial financial interest the member has in an official action and ask to be excused from a vote on the matter. The Mayor or other presiding officer shall rule on the request; however, the decision may be overridden by the majority vote of the Council. Should a Council member fail to declare a substantial financial interest, the Council may move to disqualify that member from voting by a majority vote of the body. A Council member with a conflict of interest regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter.[1 ]


The code defines “substantial financial interest” as


1. An interest that will result in immediate financial gain; or


2. An interest that will result in financial gain which will occur in the reasonably foreseeable future. HCC 1.12.010(a). Under common law, “the focus … [is] on the relationship between the public official’s financial interest and the possible result of the official’s action, regardless of the official’s intent.” Carney v. State, Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990) (citing Marsh v. Town of Hanover, 113 N.H. 667, 313 A.2d 411, 414-15 (1973)).2 The plain language of HCC 1.24.040(g) appears to coincide with this principle.


The City Council did not address Sweiven’s alleged conflict of interest until after the Ordinance had been passed. After the council passed the Ordinance, the City Attorney advised the council to address the matter at its next meeting by having Sweiven declare the facts concerning his ownership of the land and ask the council to determine whether his participation in the matter constituted a conflict of interest under the City Code, and to have the Mayor then rule on this question. The City Attorney stated that if the City were to determine that Sweiven had a disqualifying conflict of interest, it should declare the Ordinance void. The City Attorney also stated that, in his opinion, Sweiven’s ownership did not constitute a disqualifying conflict of interest.


The superior court found that


[t]here has been no showing that passage of the ordinance will result in a financial gain to Council member Sweiven, now or in the future. In fact, it may act as a detriment. Council member Sweiven’s interest in Ordinance No. 92-18 is simply too remote and/or speculative to require his disqualification as a legislative official.


This finding is clearly erroneous. The court further stated,


Plaintiff correctly surmises that Council Member Sweiven’s purpose and intent at the time he promoted and voted for the ordinance are of crucial importance in determining whether or not he had a conflict of interest.


This holding incorrectly states the law, because the proper focus is on the relationship between the official’s financial interest and the result of the official’s action, “regardless of the official’s intent.” Carney, 785 P.2d at 548.


Sweiven had a “substantial financial interest” within the meaning of HCC 1.12.010(a)(2) in a reclassification which would increase the permissible uses of his property. Indeed, it seems inconsistent for the City to argue both that the Ordinance will benefit the City by increasing the tax base and property values, and that it will not benefit Sweiven’s lot in a similar fashion.


The City nevertheless asserts that Sweiven’s interest in the passage of Ordinance 92-18 is too remote and speculative to constitute a disqualifying interest, and argues that Sweiven’s property is affected the same way as other citizens’ property. The City attempts to distinguish Carney in which we held that fishermen who sat on the Board of Fisheries could vote on matters affecting the fishing industry as a whole but were disqualified from voting on regulations which affected the area in which they actively fished. We reasoned in Carney that the members should have abstained from decision-making in areas in which they had a narrow and specific interest. Id. at 548. The City argues that Sweiven did not have a narrow and specific interest because “Mr. Sweiven’s operations (his home and appliance repair business) are not affected at all by Ordinance 92-18 (automobile sales and services).”


Ordinance 92-18 does not directly affect all of Homer, or even a large part of the City or an entire class of its citizens. Sweiven voted on an amendment which directly affects only thirteen lots, including his own, out of the 500-some lots in the CBD. According to the Alaska Department of Law, the common law requires that a legislator refrain from voting on a bill which will inure to the legislator’s financial benefit if the legislator’s interest “is peculiarly personal, such as when a bill benefits only a tiny class of which the legislator is a member.” 1982 Formal Op. Att’y Gen. 4133.


Furthermore, it is said in the context of zoning:


Most of the cases [of disqualifying conflict of interest] have involved a charge of a more-or-less direct financial interest, and it is clear that such an interest is a proper ground of disqualification, as where the officer himself holds property which is directly involved in or affected by the proceeding.


….


The clearest situation in which disqualifying bias or prejudice is shown is that where the zoning officer himself owns property the value of which will be directly promoted or reduced by the decision to be made and it is not surprising that upon a showing of such interest the courts have usually held the officer disqualified.


W.E. Shipley, Annotation, Disqualification for Bias or Interest of Administrative Officer Sitting in Zoning Proceeding, 10 A.L.R.3d 694, 697 (1966). Sweiven himself apparently believed that the Ordinance would increase the value of his property. In recommending the limited rezone to the planning commission, he stated that “it would increase the tax base and property values” of the area. The record reflects that when Sweiven was advocating rezoning the entire CBD, he was quoted in the Homer News as stating: “Even my own business. I can’t sell my business, but I can sell my building, and someone who wants to put a VW repair shop there — he can’t…. It’s not just me. This gives everybody in town a lot more options as far as selling their business.” Finally, Sweiven initially refrained from voting on Ordinance 94-13, which would have repealed Ordinance 92-18, on the ground that he had a potential conflict of interest. It consequently appears that Sweiven had a “substantial financial interest” as that term is defined in HCC 1.12.010(a).


The superior court’s finding that Sweiven did not have a disqualifying conflict of interest is clearly erroneous.


 


2. What was the effect of the conflict of interest?


 


There are six voting members on the Homer City Council. Five voted for Ordinance 92-18 on its first reading. One was absent. Four weeks later, it passed its second and final reading, again by a vote of five in favor and one absent. Thus, without counting Sweiven’s vote, Ordinance 92-18 would have passed. The superior court held that even if Sweiven had a disqualifying conflict of interest, his participation and voting would not invalidate the result. In support it cited Waikiki Resort Hotel v. City of Honolulu, 63 Haw. 222, 624 P.2d 1353, 1370-71 (1981).


Waikiki followed the rule, also articulated in several other jurisdictions, that where the required majority exists without the vote of the disqualified member, the member’s participation in deliberation and voting will not invalidate the result. 624 P.2d at 1371 (citing Singewald v. Minneapolis Gas Co., 274 Minn. 556, 142 N.W.2d 739 (1966); Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972); Eways v. Reading Parking Auth., 385 Pa. 592, 124 A.2d 92 (1956)). The Waikiki court also cited Marshall v. Ellwood City Borough, 189 Pa. 348, 41 A. 994 (1899), where the court reasoned that because the other four members voted in favor of the disputed ordinance, the invalid vote of one city councilman had no legal efficacy; thus, the court would not invalidate the ordinance. Waikiki, 624 P.2d at 1371.


Waikiki cited decisions from three other jurisdictions holding that a vote cast by a disqualified member vitiates the decision in which the member participated, even if the vote does not change the outcome of the decision. 624 P.2d at 1370 (citing Piggott v. Borough of Hopewell, 22 N.J. Super. 106, 91 A.2d 667 (1952); Baker v. Marley, 8 N.Y.2d 365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960); Buell v. City of Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972)). In Buell, the court stated:


The self-interest of one member of the planning commission infects the action of the other members of the commission regardless of their disinterestedness. The recommendation of the planning commission to the city council could not be assumed to be without impact on the council. More importantly, it would not appear to the affected public that it was without impact, and [the disqualified member’s] actual financial gain is sufficient to invalidate the entire proceeding.


495 P.2d at 1362-63 (citations omitted).


These lines of authorities offer a choice between vote-counting (Waikiki) and automatic invalidation (Buell). We have not had occasion to consider this exact issue. In Carney, we found that four of seven fisheries board members had a disqualifying conflict. We then held the board’s regulation invalid: “Because a majority of the votes cast to pass the regulation are invalid, so is the regulation.” 785 P.2d at 549. Carney did not raise the issue now before us because there the measure would have been invalidated under either doctrine.


We decline to follow the vote-counting approach adopted in Waikiki, notwithstanding its appealing ease of application. A council member’s role in the adoption or rejection of an ordinance cannot necessarily be measured solely by that member’s vote. A conflicted member’s participation in discussion and debate culminating in the final vote may influence the votes of the member’s colleagues. Moreover, the integrity required of public officeholders demands that the appearance of impropriety be avoided; the approach adopted in Waikiki will not always do so. See Falcon v. Alaska Pub. Offices Comm’n, 570 P.2d 469, 477 (Alaska 1977) (holding financial disclosure laws preserve the integrity and fairness of the political process both in fact and appearance); Warwick v. State ex rel. Chance, 548 P.2d 384, 388 (Alaska 1976) (“[I]t is important that the legislature not only avoid impropriety, but also the appearance of impropriety.”). Cf. AS 39.50.010(b)(1) (public office is a public trust which should be free from the danger of conflict of interest). The superior court erred in holding that Ordinance 92-18 is valid simply because Sweiven did not cast the decisive vote in its adoption.


We also decline, however, to adopt the rule of automatic invalidation endorsed in cases such as Buell, 495 P.2d at 1362-63. The vote and participation of a conflicted member will not invariably alter the votes of other members or affect the merits of the council’s decision. This is especially true if the conflict is disclosed or well-known, allowing other members to assess the merits of the conflicted member’s comments in light of his or her interest. Automatic invalidation could needlessly overturn well-considered measures which would have been adopted even if the disqualified member had refrained from participating. Automatic invalidation has the potential for thwarting legislative enactments which are not in fact the result of improper influence.


The dissenting opinion cites HCC 1.12.030 as justification for its conclusion that participation by a disqualified member requires invalidation of the council’s action.3


HCC 1.12.030 and 1.24.040(g), however, determine whether a member may vote or participate. They deal with disqualification, and do not address the consequences of participation by a conflicted member. The drafters of the code must have contemplated that violations might occur notwithstanding the prohibition. They nonetheless specified no remedy. Had they intended that particular consequences would follow from violation of the prohibition, such as the clear-cut remedies of automatic invalidation or vote-counting, they could have easily so provided. Their failure to specify a remedy for violation implies that the drafters intended that the courts fashion the remedy.


In determining whether the vote of a conflicted member demands invalidation of an ordinance, courts should keep in mind the two basic public policy interests served by impartial decision-making: accuracy of decisions, and the avoidance of the appearance of impropriety. See generally Mark W. Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N.D.L.Rev. 161 (1989).


Guided by these basic policy concerns, we conclude that the following analysis should be applied in determining the effect of a conflicted vote. Initially the court must determine whether a member with a disqualifying interest cast the decisive vote. If so, the ordinance must be invalidated. Carney, 785 P.2d at 549. If the ordinance would have passed without the vote of the conflicted member, the court should examine the following three factors: (1) whether the member disclosed the interest or the other council members were fully aware of it; (2) the extent of the member’s participation in the decision; and (3) the magnitude of the member’s interest. The first two factors squarely bear on the accuracy of the council’s decision. All three factors directly relate to any appearance of impropriety.


If the interest is undisclosed, the ordinance will generally be invalid; it can stand only if the magnitude of the member’s interest, and the extent of his or her participation, are minimal. If the interest is disclosed, the ordinance will be valid unless the member’s interest and participation are so great as to create an intolerable appearance of impropriety. The party challenging the ordinance bears the burden of proving its invalidity. We recognize that this analysis is more difficult to apply than the vote-counting and automatic invalidation rules. Simple to apply, those rules are unacceptably rigid.


The factual record before us is not so clear that we can decide as a matter of law whether invalidation is appropriate. The record does not reveal whether the other council members had actual knowledge of Sweiven’s interest. While Sweiven’s interest in his lot, where he lived and worked, was open and obvious, this is a matter of potential factual dispute to be explored on remand. Likewise, we cannot weigh the extent of Sweiven’s participation or say whether it may have affected the outcome of the measure. Nor does the record establish whether Sweiven was likely in the foreseeable future to realize any significant appreciation from the reclassification by selling or servicing motor vehicles or by selling his lot to someone who intended to do so. We therefore remand so that the superior court, applying the analysis discussed above, can determine whether Ordinance 92-18 must be invalidated.


… .


 


Rabinowitz, Justice, dissenting in part.


 


I believe it is of particular significance that Sweiven participated in the discussion of and voted for Ordinance 92-18. As the court observes, this ordinance does not directly affect all of Homer, or even a large segment of the City or an entire class of its citizens. More particularly, the ordinance directly affects only thirteen lots, including Sweiven’s own, out of approximately 500 lots located within the Central Business District. The record further reveals Sweiven’s belief that Ordinance 92-18 would increase the value of his property. Indeed Sweiven explicitly stated that “[the proposal] would increase the tax base and property values” of the area when recommending the Limited Rezone to the planning commission.4


Based on the foregoing, the court correctly concludes that “Sweiven had a ‘substantial financial interest’ within the meaning of HCC 1.12.010(a)[5 ] in a reclassification which would increase the permissible uses of his property…. The superior court’s finding that Sweiven did not have a disqualifying conflict of interest is clearly erroneous.” Op. at 25, 28.


My disagreement with the court’s opinion goes to its discussion of the effect of Sweiven’s conflict of interest and the appropriate remedy given the factual context of this case. Central to my differing analysis are the provisions of the Homer City ordinances which address the subject of conflict of interest. In my view, the court’s analysis ignores that part of the Homer Municipal Code 1.12.030, which states:


A City Councilmember or Mayor with a conflict of interest under section 1.12.020 shall so declare to the body as a whole and ask to be excused from voting on the matter. However, a City Councilmember or Mayor with a conflict of interest, regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter. (Ord.92-49(A) § 4, 1992; Ord. 86-22(S) § 1(part), 1986).[6 ]


The City of Homer, as expressed in section 1.12.030 of its Code, has adopted a policy which flatly contradicts the court’s statement that


[t]he vote and participation of a conflicted member will not invariably alter the votes of other members or affect the merits of the council’s decision. This is especially true if the conflict is disclosed or well known, allowing other members to assess the merits of the conflicted member’s comments in light of his or her interest.


Regardless of the wisdom of the City of Homer’s legislative enactment barring conflicted council members’ participation in decisions,7 the fact remains that the City of Homer has expressly adopted a rule specifically prohibiting conflicted council members from taking part in discussion or voting on the matter of interest. In fact, the prohibition on discussion is more stringent that the rule on voting — even when the “Mayor or other presiding officer” decides that the member need not be excused from voting, and even when the council chooses not to override that decision by a simple majority vote, the member is nonetheless forbidden to participate in the discussion.


The rule adopted by the court pays no heed to this participation ban contained in the City of Homer’s municipal code. The portions of the court’s rule which conflict with the express non-participation policy of HCC 1.12.030 are the following:


If the interest is undisclosed, the ordinance will generally be invalid; it can stand only if the magnitude of the member’s interest, and the extent of his or her participation, are minimal. If the interest is disclosed, the ordinance will be valid unless the member’s interest and participation are so great as to create an intolerable appearance of impropriety.


(Emphasis added.) In short, the court’s rule would permit a conflicted council member to participate in the discussion of a matter before the body responsible for official action in cases where the conflicting interest has been disclosed, or where the conflicting interest is undisclosed and the conflicted member’s participation does not create an intolerable appearance of impropriety.


Although the court’s formulation might well be adopted as a general rule, I think it inappropriate to do so in the face of an ordinance completely prohibiting participation by any city council member with a substantial conflicting interest in the subject matter of a proposed ordinance. In this regard, it is noteworthy that HCC 1.12.030 is not couched in terms of de minimis levels of participation. On the contrary, it imposes a complete ban on the conflicted member’s participation.


Given the participation ban imposed by HCC 1.12.030, Sweiven’s conflict generating significant financial interest, and Sweiven’s participation in the discussion of Ordinance 92-18, I conclude that the appropriate remedy is invalidation of the ordinance.


As the court recognizes, a council member’s role in the adoption or rejection of an ordinance cannot necessarily be measured solely by that member’s vote. A conflicted member’s participation in discussion and debate culminating in the final vote may influence the votes of the member’s colleagues. The court also appropriately recognizes that the integrity required of public office holders demands that even the appearance of impropriety be avoided.8


Guided by these principles and the City of Homer’s explicit ban on a conflicted member’s participation, I respectfully dissent from the court’s remedy. Rather than remand this issue, I would hold Ordinance 92-18 invalid because of council member Sweiven’s participation.9




FOOTNOTES

  1. In addition, Homer’s City Code mandates that a city official “disclose any financial interest in any matter before the board or commission before debating or voting upon the matter” and prohibits the official from participating in the debate or vote unless the board or commission determines that a financial interest is not substantial as defined in HCC 1.12.010. HCC 1.12.070 (emphasis added).


  2. At first glance it may appear that the Executive Branch Ethics Act, AS 39.52.010-.960, which explicitly supersedes the common law on conflicts of interest, see AS 39.52.910, requires intent on the part of public officials subject to that Act. See AS 39.52.120(b)(4). However, that Act does not apply to municipal officials. Gates v. City of Tenakee Springs, 822 P.2d 455, 462 (Alaska 1992). Thus, the common law of conflicts of interest continues to apply to municipal officers. Carney, 785 P.2d at 547-48.


  3. The portion of HCC 1.12.030 cited by the dissent states:


    A City Councilmember or Mayor with a conflict of interest under section 1.12.020 shall so declare to the body as a whole and ask to be excused from voting on the matter. However, a City Councilmember or Mayor with a conflict of interest, regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter. (Ord.92-49(A) § 4, 1992; Ord. 86-22(S) § 1(part), 1986).


    This language is nearly identical to the similar prohibition in HCC 1.24.040(g), but also applies to the mayor.


  4. The court notes:


    The record reflects that when Sweiven was advocating rezoning the entire CBD, he was quoted in the Homer News as stating: “Even my own business. I can’t sell my business, but I can sell my building, and someone who wants to put a VW repair shop there — he can’t… . It’s not just me. This gives everybody in town a lot more options as far as selling their business.” Finally, Sweiven refrained from voting on Ordinance 94-13, which would have repealed Ordinance 92-18, on the ground that he had a potential conflict of interest.


    Op. at 27.


  5. At all times relevant to the case at bar, HCC 1.12.010(a) defined “substantial financial interest” as follows:


    1. An interest that will result in immediate financial gain; or


    2. An interest that will result in financial gain which will occur in the reasonably foreseeable future.


    (HCC 1.12.010 has subsequently been amended.)


    HCC 1.12.020 provides:


    A City Councilmember or Mayor with a substantial financial interest in an official action to be taken by the Council has a conflict of interest. (Ord.92-49(A) § 3, 1992; Ord. 86-22(S) § 1(part), 1986).


  6. HCC 1.12.040 provides:


    The Mayor or, in his absence, the Mayor Pro-Tem or other presiding officer, shall rule on a request by a City Councilmember to be excused from voting on a matter because of a declared conflict of interest. The Mayor Pro-tem or other presiding officer shall rule on a request by the Mayor to be excused from participating in a matter because of a declared conflict of interest. (Ord.92-49(A) § 5, 1992; Ord. 86-22(S) § 1 (part), 1986).


    HCC 1.12.050 further provides:


    A decision of the Mayor or other presiding officer under Section 1.12.040 may be overridden by a majority vote of the City Council. (Ord.86-22(S) § 1 (part), 1986).


  7. This court has consistently held that it is not our function to question the wisdom of legislation. University of Alaska v. Geistauts, 666 P.2d 424, 428 (Alaska 1983); Alaska Interstate v. Houston, 586 P.2d 618, 621 (Alaska 1978).


  8. See generally Mark W. Cordes, Policing Bias and Conflict of Interest in Zoning Decisionmaking, 65 N.D.L.Rev. 161 (1989). Here the author writes in part:


    The second and more common provision is to prohibit participation when a conflict of interest exists. The rationales behind this are obvious. Although disclosure has some restraining effect, a significant conflict might still affect the substantive outcome of a decision. More importantly, perceptions of fairness and legitimacy are only partly addressed by disclosure.


    For these reasons disqualification rather than disclosure is the preferable approach. Although in some instances disclosure might adequately address the need for impartiality, in many instances it will only be partially effective. The inconvenience of adjusting to the disqualification of a decisionmaker is not so great as to justify the threat to accuracy and legitimacy posed by the requirement of mere disclosure.


    Beyond determining what effect a conflict of interest should have on a particular decisionmaker is what judicial remedies should be available when a zoning decision in fact involved an improper conflict of interest. In those instances in which the biased decisionmaker casts a dispositive vote, courts have consistently invalidated the decision. This seems appropriate in that both accuracy and legitimacy concerns are clearly threatened when a decision appears to turn on the vote of a self-interested decisionmaker.


    A more difficult issue is whether the participation of a conflicting member whose vote was not determinative to a decision should also result in invalidation. This might occur in two general situations. First is where the tainted vote was numerically unnecessary for the decision. Courts have evenly split on this issue, with a slight majority favoring invalidation. Courts refusing to invalidate such decisions have primarily reasoned that even without the tainted vote the decision would have occurred anyway and therefore invalidation is improper. In this sense the threat to accuracy and legitimacy concerns is arguably de minimis when the particular vote is apparently not crucial to a decision. In particular, legitimacy concerns are less threatened when a decision appears inevitable. As a result, the administrative burden of invalidating and remanding a decision outweighs any threat to substantive results and perceptions of fairness.


    Despite these distinctions, several strong reasons exist for invalidating decisions even when a tainted decisionmaker’s vote was numerically unnecessary for the decision. First, courts invalidating such decisions have noted that collegial decisionmaking ideally involves the exchange of ideas and views, often with the intent of persuading toward a particular position. The actual contribution of any particular decisionmaker cannot be measured with precision, but frequently extends significantly beyond the actual vote cast. For this reason, a significant threat to accuracy can exist even when a particular vote was numerically unnecessary for the decision.


    For similar reasons legitimacy concerns also exist even when a vote is numerically unnecessary. Although legitimacy concerns are less substantial in such circumstances, the perception of collegial decisionmaking and the potential influence of a tainted decisionmaker on others would violate “appearance of fairness” standards. Thus, for both accuracy and legitimacy reasons the better view is that even when a vote is numerically unnecessary for a decision courts should still invalidate it.


    Id. at 214-216 (footnotes omitted).


  9. I note my agreement with the court’s other holdings.


In re McGlynn,

974 A.2d 525 (2009)



H. Peter Nelson, Perkasie, for appellants.


Matthew J. Goodrich, Bangor, for appellee, L.U.R.R.S.


 


Opinion by Judge SIMPSON.


 


An important issue in this appeal is whether the failure to strictly comply with the public notice provisions of the Pennsylvania Municipalities Planning Code (Code) resulted in a denial of procedural due process so as to render a decision on a conditional use application void ab initio.


The Board of Supervisors (Board) of Lehigh Township (Township) granted a conditional use application (Use Application) filed by L.U.R.R.S. (Applicant). The Use Application sought approval for development of a mobile/manufactured home park. Objectors, who actively participated in multiple hearings on the Use Application, appealed the Board’s decision to the Court of Common Pleas of Northampton County (trial court). In addition to challenging the Township’s notice procedures, Objectors asserted Applicant does not own all the property subject to the Use Application, the Application is moot, and the Application failed to meet the standards of the Lehigh Township Zoning Ordinance (Ordinance) for the grant of a conditional use application and for a mobile/manufactured home park. The trial court affirmed the Board’s decision, and Objectors appeal. We affirm.


… .


In June 2004, Applicant filed the Use Application with the Township seeking to construct a mobile/manufactured home park on property located along Mountainview Drive (Property). The 103-acre Property is located in a Village Residential District (VR), which permits a mobile/manufactured home park as a conditional use. Applicant proposed to construct 245 single-family homes designated as North Woods Manufactured Home Community.


The Township Planning Commission recommended approval of the Use Application. Accordingly, the Township advertised that the Board would hold a public hearing on the Use Application at its January 31, 2006 meeting. The public notice appeared in the January 19, 2006 edition of a local newspaper of general circulation. The Township also published a second notice of the public hearing in the January 23, 2006 edition of the same newspaper. These publications occurred four days apart.


The Board held the conditional use hearing as scheduled. Applicant submitted evidence in support of its Use Application and Objectors, representing themselves, cross-examined Applicant’s witnesses. The Board’s hearing did not conclude on January 31; rather, the Board held additional hearings on February 28 and March 27, 2006. Objectors again actively participated in the hearings by cross-examining Applicant’s witnesses and offering evidence.


In a comprehensive decision, the Board set forth findings of fact and conclusions of law, and examined each conditional use requirement of the Ordinance as well as the specific requirements of a mobile/manufactured home park. It concluded Applicant showed compliance with all zoning requirements and, therefore, granted the Use Application with conditions.


Retaining counsel, Objectors appealed the Board’s decision to the trial court. Among a variety of motions, Objectors sought to reopen the record. Certified Record (C.R.) Item 9. Objectors also asserted Applicant engaged in unauthorized tree clearing on the Property. The trial court ordered that “the entire matter will be remanded to the [Board] for purposes of presentation of any additional testimony and evidence.Id. (emphasis added).


The Board held remand hearings in April, May and June 2007. Objectors through Counsel actively participated in the remand hearings. In October 2007, the Board issued a second decision confirming its May 2006 decision as modified by an interim stipulation between the Township and Applicant. Addressing the matters subject to remand, the Board noted the wetlands issue arose during the first round of conditional use hearings and, as a result, it imposed Conditions 7, 8 and 10, noted below. Concerning the utility easement, the Board observed that relocation of homes, roads, and water retention basins impacted by the easement would be addressed in the subdivision and land development process. Finally, the Board explained the Township previously issued and withdrew a violation notice regarding tree removal on the Property. In short, the Board found the testimony on remand did not affect its decision on the Use Application.


Objectors filed a second appeal to common pleas court. A different trial judge heard Objectors’ appeal. The trial court affirmed.


… .


The first issue Objectors raise involves the concept of procedural due process. The fundamental components of procedural due process are notice and opportunity to be heard. Pessolano v. Zoning Bd. of Adjustment of City of Pittsburgh, 159 Pa.Cmwlth. 313, 632 A.2d 1090 (1993).


Regarding only the conditional use hearing held January 31, 2006, the Township advertised the Board’s hearing on January 19 and then again on January 23. The publications occurred four days apart and, according to Objectors, constituted insufficient public notice under the MPC. There are no assertions that the Board failed to publish notice of the remaining five conditional use hearings held in 2006 and 2007. It is also important to note Objectors do not assert any harm resulting from the Township’s failure to twice advertise the first conditional use hearing at least five days apart.


Section 908(1) of the MPC requires public notice of Board hearings. 53 P.S. § 10908(1). Section 107 of the MPC defines “public notice” as


notice published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.


53 P.S. § 10107.


The MPC does not define the term “successive weeks.” We therefore look to the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991, to construe the term’s meaning. It provides that whenever any statute uses the phrase “successive weeks” in reference to publishing of notices, the weeks “shall be construed as calendar weeks [and the] publication upon any day of such weeks shall be sufficient publication for that week, but at least five days shall elapse between each publication.” 1 Pa.C.S. § 1909.


At this juncture, the parties agree the Township’s two notices of the Board’s January 31 hearing were published four days apart instead of five days, as required by Section 1909.1 The question then is the result of the defect on the Use Application.


At the outset, we observe Objectors failed to raise their public notice concerns at anytime before the Board and, therefore, deprived it of an opportunity to discontinue the proceedings and start anew. Nevertheless, Objectors cite several appellate decisions for the proposition that strict compliance with the MPC’s notice provisions is mandatory and any deviation renders the local agency’s decision void ab initio. See Luke v. Cataldi, 593 Pa. 461, 932 A.2d 45 (2007) (alleged failure to provide public notice or public hearing before granting conditional use application would render board’s decision void ab initio; remanded for further proceedings); Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Twp., 589 Pa. 135, 907 A.2d 1033 (2006) (a claim alleging a procedural defect affecting notice or due process rights in the enactment of an ordinance may be brought beyond statutory appeal period because, if proven, ordinance is void ab initio); Schadler v. Zoning Hearing Bd. of Weisenberg Twp., 578 Pa. 177, 850 A.2d 619 (2004) (failure to make full text of proposed amendment to zoning ordinance available for public comment rendered subsequent enactment of the amendment void ab initio); Lower Gwynedd Twp. v. Gwynedd Props., Inc., 527 Pa. 324, 591 A.2d 285 (1991) (failure to publish entire text of ordinance as required by The Second Class Township Code rendered ordinance void).


After careful consideration, we do not believe reversal of the Board’s decision is compelled here where Objectors received all process due and asserted no claim of prejudice or harm.


The statutory notice and publication requirements are to ensure the public’s right to participate in the consideration and enactment of municipal land use decisions. Lower Gwynedd Twp. In other words, the notice provisions protect procedural due process. The concept of due process, however, is a flexible one and imposes only such procedural safeguards as the situation warrants. LaFarge Corp. v. Ins. Dep’t, 557 Pa. 544, 735 A.2d 74 (1999); Fountain Capital Fund, Inc. v. Pa. Secs. Comm’n, 948 A.2d 208 (Pa. Cmwlth.2008), appeal denied, ___ Pa. ___, 967 A.2d 961 (2009). Demonstrable prejudice is a key factor in assessing whether procedural due process was denied. State Dental Council & Examining Bd. v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974).


The seminal case addressing due process is Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Factually, Mathews concerned the Social Security Administration’s decision to discontinue cash benefits without affording the recipient a pre-decisional hearing. The United States Supreme Court rejected the recipient’s claim that due process required the agency to hold a hearing prior to terminating benefits. In doing so, the Court considered what process is due an individual before a property interest may be affected by government action. It identified three factors that must be considered in formulating the process due: the private interest affected by the government action; the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the administrative burdens that additional or substitute procedural requirements would entail. Id. at 335, 96 S.Ct. 893. We address each of these considerations.


First, we recognize Objectors have an interest in the quiet use and enjoyment of their properties near the proposed use, as well as the right to participate in the Board’s hearings. Here, however, we discern no deprivation of Objectors’ interests. In Pessolano, neighboring property owners appeared at a zoning hearing to oppose a landowner’s application for a special exception. The zoning board denied the application, and the landowner appealed to common pleas court. The landowner did not serve the neighboring property owners with a notice of appeal. On appeal, the court reversed the zoning board’s decision, granted the special exception, and imposed conditions on the property’s use.


After the appeal period lapsed, the neighboring property owners petitioned to vacate the court’s order on the basis they were denied the opportunity to intervene in the landowner’s appeal. They cited a city zoning ordinance requiring an appealing party to notify all persons appearing before the zoning hearing board of an appeal. Sustaining the landowner’s preliminary objections, the common pleas court dismissed the petition to vacate. Of import, the court concluded the landowner’s failure to strictly comply with the city ordinance did not warrant reversal of its decision because the property owners did not claim lack of actual knowledge of the landowner’s appeal.


We affirmed. Cognizant of the procedural safeguards that notice provisions are to provide, we stated the value and necessity of strict compliance with the notice requirements is diminished where the interested parties have actual notice of the legal proceedings. “[A]ctual notice serves to accomplish the same purposes that legal notice is intended to accomplish. Both forms of notice serve to make interested parties aware of the opportunity to exercise their legal rights.” Id. at 317, 632 A.2d 1090.


Applying the above principle here, Objectors had actual notice of the Board’s first conditional use hearing and actively participated at that time. At no time during the six Use Applications hearings did Objectors assert to the Board lack of actual notice of the first hearing or defective publication of the required notices. Cf. Citimortgage, Inc. v. KDR Invs., LLP, 954 A.2d 755 (Pa.Cmwlth.2008) (the formal requirements of statutory notice for sale of property for nonpayment of taxes need not be strictly met where actual notice is established); Aldhelm, Inc., v. Schuylkill County Tax Claim Bureau, 879 A.2d 400 (Pa.Cmwlth.2005)(same).


Second, the ongoing proceedings here did not risk depriving Objectors of their interests. At the conclusion of the first hearing, the Board announced its intention to hold a second hearing. Likewise, the Board announced a third hearing at the conclusion of the second hearing. It also indicated it would publish notice of the upcoming hearings in a local newspaper and post the Township building. See C.R., Notes of Testimony (N.T.), Vol. I at 147-48; Vol. II at 147.


Most significantly, Objectors and their counsel fully participated in the remand proceedings. The scope of the remand was not limited; rather, Objectors were able to call any witness and offer any appropriate document. Thus, their interests were fully protected.2 Objectors’ participation with counsel during the unrestricted remand hearings acted to cure any deficiency in notice of the original set of hearings. Indeed, Objectors do not assert prejudice by the manner of publishing notice of the first of the original set of hearings.


Third, we consider the Township’s interests and burden in curing the defective notices of the first hearing. It is conceivable that the entire application process would start anew. The Township would again incur advertising costs and counsel fees to cover the same material already offered in the previous six hearings. Objectors do not suggest any different information would be offered at new proceedings. Under these circumstances, a similar result is expected, and Objectors’ challenge to the proposed use would likely result in appeals again. The financial and administrative burdens on the Township are obvious.


In summary, Objectors do not claim harm resulting from the Township’s failure to twice advertise the first conditional use hearing in strict compliance with the MPC. Objectors’ interests were protected by their active participation during the initial set of hearings and by their active participation with counsel during unrestricted remand hearings. Absent a showing of discernible harm, a denial of due process claim must fail.


… .




FOOTNOTES

  1. Section 1908 of the Statutory Construction Act provides for the computation of time when referenced in a statute. 1 Pa.C.S. § 1908. However, Section 1908 does not apply to Section 1909, above. Id. The trial court therefore looked to the Rules of Civil Procedure to determine the number of days between publications of the hearing notices. Specifically, Rule 106 provides that when any period of time is referenced in the rules, the period shall be computed by excluding the first day and including the last day of any such period. Pa. R.C.P. No. 106. In this case, the first day of the five-day period was January 20 and the last day was January 23; thus, only four days lapsed between publications. Nevertheless, the trial court recognized liberal construction of the rules of civil procedure is required so long as the error does not affect the substantial rights of the parties. See Pa. R.C.P. No. 126. As more fully explained, the publication error did not affect the parties’ substantive rights.


  2. Our recent decision in Southeastern Chester County Refuse Authority v. Board of Supervisors of London Grove Township, 954 A.2d 732 (Pa.Cmwlth.2008), is also instructive on this point. There, the Southeastern Chester County Refuse Authority (SECCRA) filed an application to expand its landfill. The township board of supervisors held hearings on the application over an 18-month period. After denial of its application, SECCRA claimed the board failed to schedule the hearings in compliance with the MPC and, thus, it was entitled to a deemed approval. We affirmed the denial of SECCRA’s application. Important to our decision was the fact that SECCRA actively participated in the board’s decisions and challenged the evidence opposing its application over the 18-month period. It never asserted its right to a deemed approval during that time. In sum, we concluded SECCRA’s active participation in hearing subsequent to the date it could have asserted a deemed approval under the MPC manifested its agreement to an extension of time for a board determination.


    Southeastern Chester County Refuse Authority confirms that a party’s actions which are contrary to the rights it seeks to assert may result in waiver of the claimed right. Here, Objectors should have asserted the Township’s publication of the first Use Application hearing was defective at the start of the first hearing. They compounded the issue by failing to raise it before the Board at any of the other five hearings.


Maxwell v. Carney,

273 Ga. 864 (2001)



Sherwood & Sherwood, J. Carol Sherwood, Jr., Valdosta, for appellants.


Long Denton & Parrott, Allen Denton, Vann K. Parrott, Quitman, for appellees.


 


Thompson, Justice.


 


The Brooks County Board of Commissioners held a regularly scheduled monthly meeting on November 16, 1999, in the Brooks County Commission’s meeting room. A number of people, over and above the room’s seating and standing capacity, showed up for the meeting but they were unable to get in. Although a larger room in the building had been used for county meetings, the commission refused a request to move the meeting to the larger room. The stated reason for that refusal was that the public notice specified that the meeting would take place in the smaller room.


Thereafter, plaintiffs brought this suit seeking injunctive relief on the ground that the commission violated the Open Meetings Act, OCGA § 50-14-1 et seq. Following a hearing, the superior court enjoined the commission “from conducting public meetings… in the Brooks County Office Building unless both meeting rooms in the building are available to the board.” Furthermore, the superior court ordered that, “if a new site is selected for public meetings the room shall provide adequate seating and space so that all members of the public who desire to attend may be accommodated.” Finally, the superior court held “that a public notice of a meeting to the effect that all county commissioner’s meetings in the Brooks County Office Building at [address] shall be legally sufficient regardless of which room in the building is utilized.” The commission appeals asserting the superior court abused its discretion in shaping injunctive relief. We affirm in part and reverse in part.


1. The public notice did not specify in which room the meeting was to be held. The notice only gave the location of the building, and a sign with an arrow was placed at the entrance of the building to indicate which room was to be used. Moreover, the commission moved a previous meeting from the regular meeting room to the larger room in the building without advance notice. Accordingly, we find no error in that portion of the superior court’s order which requires the commission to conduct meetings in the larger meeting room if the usual meeting room is insufficient to accommodate the public.


Harms v. Adams, 238 Ga. 186, 232 S.E.2d 61 (1977), upon which the commission relies, is inapposite. In that case, the meeting was held in the mayor’s office because the regular meeting room was occupied. Moreover, there was no evidence that another room was available.


2. The superior court’s injunction is too broad insofar as it requires the commission to provide adequate seating to enable all members of the public to attend the meeting. The superior court would have the commission provide seating for everyone in the county if they all decided to attend a meeting. This was not the intent of the Open Meetings Act. The Open Meetings Act requires adequate, advance notice of a meeting – not physical access to all members of the public. See Harms v. Adams, supra.


Judgment affirmed in part and reversed in part.


Kearns-Tribune Corporation v. Salt Lake County Commission,

28 P.3d 686 (Utah 2001)



Michael Patrick O’Brien, Deno G. Himonas, Jeremy M. Hoffman, Salt Lake City, Charles A. Brown, Lewiston, Idaho, for plaintiff.


David E. Yocom, Gavin J. Anderson, Salt Lake City, for defendant.


Jeffrey J. Hunt, Diana Hagen, David C. Reymann, Salt Lake City, for amici.


 


Wilkins, Justice.


 


¶ 1 This appeal presents the question of whether the Utah Open and Public Meetings Act, Utah Code Ann. §§ 52-4-1 to -10 (1998), permits the Salt Lake County Commission to close a meeting to the public in order to consider, with legal counsel, possible courses of action with respect to an annexation petition pending before the Salt Lake County Boundary Commission. The parties filed cross motions for summary judgment, and the district court ruled in favor of plaintiff Kearns-Tribune Corporation concluding that by closing the meeting, the Salt Lake County Commission violated the Open and Public Meetings Act. We reverse and remand.


 


BACKGROUND


 


¶ 2 In this case, no material differences in the facts were raised by the parties, only questions about the legal implications of those facts. We recite the facts accordingly.


¶ 3 The Salt Lake County Commission (“County Commission”) held a staff meeting on March 30, 1998. The County Commission customarily treated staff meetings as subject to the Utah Open and Public Meetings Act, and therefore the March 30, 1998 meeting was open to the public. At one point, however, the county attorney’s office suggested to the County Commission that part of the meeting be closed. The county attorney’s office wanted to discuss in private whether to oppose Riverton City’s petition to annex unincorporated county land that was pending before the Salt Lake County Boundary Commission (“Boundary Commission”). The county commissioners voted unanimously to close the meeting, and the public, including the press, was asked to leave.


¶ 4 The county commissioners and their attorneys then met privately and discussed matters pertaining to Riverton City’s annexation proposal. The minutes of this closed meeting reflect that legal counsel first explained to the Commissioners the factual and procedural circumstances surrounding the annexation proceeding and the possible results of the annexation petition, namely that islands of unincorporated county land would result. Next, counsel indicated that South Jordan City had protested Riverton City’s petition. Finally, counsel outlined three possible courses of action: (1) the County Commission could send a letter to Riverton City listing technical problems with the petition, but refrain from appearing before the Boundary Commission; (2) the County Commission could appear, through counsel, before the Boundary Commission and address only technical problems with the petition; or (3) the County Commission could file a formal protest with the Boundary Commission opposing the annexation. Counsel recommended that the county not protest technicalities. The County Commission voted to appear before the Boundary Commission and to send a letter to Riverton City identifying technical problems. The meeting was then reopened to the public, and adjourned.


¶ 5 The complaint filed by plaintiff Kearns-Tribune Corporation (“Kearns-Tribune”), a newspaper publishing company, insists that the Salt Lake County Commission violated the Utah Open and Public Meetings Act (the “Act”), arguing that the exception to the Act permitting closed meetings for “strategy sessions to discuss pending or reasonably imminent litigation,” Utah Code Ann. § 52-4-5(1)(a)(iii) (1998), is inapplicable to annexation or boundary protest proceedings. The County Commission answered the complaint and filed a motion for summary judgment, arguing that it appropriately closed the March 30, 1998 meeting to discuss the county’s legal alternatives to Riverton City’s annexation petition as pending or reasonably imminent litigation. Plaintiff responded by filing a response and a cross-motion for summary judgment.


¶ 6 The district court ruled in favor of Kearns-Tribune, indicating that the portion of the meeting that was closed by the County Commission should have been open to the public. The district court concluded that the County Commission did not conduct a strategy session, but instead discussed the underlying policy issues, which the court stated should be debated publicly. The Salt Lake County Commission appeals.


… .


 


ANALYSIS


 


¶ 8 This case requires the interpretation and application of the Utah Open and Public Meetings Act. Section 52-4-3 of the Act specifies, “Every meeting is open to the public unless closed pursuant to Sections 52-4-4 and 52-4-5.” Section 52-4-4 provides the procedure through which a meeting may be closed. It reads, in relevant part: “No closed meeting is allowed except as to matters exempted under Section 52-4-5… .” The provision under consideration in this case, section 52-4-5, sets forth seven purposes for which a meeting may be closed. Four of those purposes or circumstances permitting closure to the public of a meeting involve “strategy sessions,” and all four require that a record of the closed proceedings be kept. Utah Code Ann. § 52-4-5(1)(a) (1998).


¶ 9 The types of strategy sessions allowing for lawful closure of an otherwise public meeting include those to discuss “collective bargaining,” § 52-4-5(1)(a)(ii), “pending or reasonably imminent litigation,” § 52-4-5(1)(a)(iii), “the purchase, exchange, or lease of real property where public discussion … would disclose the … value of the property… or prevent the public body from completing the transaction on the best possible terms,” § 52-4-5(1)(a)(iv), and “the sale of real property where public discussion … would disclose the … value of the property… or prevent … completing the transaction on the best possible terms; the public body had previously given public notice that the property would be offered for sale; and the terms of the sale are publicly disclosed before the public body approves the sale,” § 52-4-5(1)(a)(v).


¶ 10 We have not had occasion to review and distinguish the individual categories of closable meetings. The general nature and tone of the seven exceptions in section 52-4-5(1), however, suggest a clear legislative intent to ensure that the public’s business is done in full view of the public except in those specific instances where either the public, or a specific individual who is the subject of the meeting, may be significantly disadvantaged by premature public disclosure of sensitive information. The ultimate consequence of closed discussions about the price of real property, collective bargaining, and a public body’s approach to pending or reasonably imminent litigation eventually becomes public. Nevertheless, in each of these limited circumstances, the public’s general interest was thought by our legislature to be best served by allowing confidential discussions to precede the actions that would disclose the strategy.


¶ 11 In the case before us, the Salt Lake County Commission relies upon the exception for strategy sessions to discuss pending or reasonably imminent litigation. See § 52-4-5(1)(a)(iii). The Commission argues that it properly closed the meeting to the public because it discussed Riverton City’s petition before the Boundary Commission, and matters before the Boundary Commission are quasi-judicial and therefore qualify as “litigation” for purposes of the statute. Kearns-Tribune, to the contrary, argues that the Salt Lake County Commission improperly closed the meeting because the topic discussed by the county commissioners, an annexation dispute, is a legislative or policy matter, and not pending or reasonably imminent litigation. The amici, the Society of Professional Journalists and several news organizations, also argue that the County Commission improperly closed the meeting because the county commissioners discussed policy, not litigation strategy. The amici further contend that the litigation exception must be strictly construed. The plain meaning of the term “litigation” implies court proceedings, they argue, and defining “litigation” to include agency proceedings, like an annexation proceeding, would result in the litigation exception eviscerating the general rule of openness intended by the Act.


¶ 12 Both parties and the amici refer us to our decision in Common Cause of Utah v. Public Service Commission, 598 P.2d 1312 (Utah 1979). Common Cause is not like this case, however. In Common Cause, we said that the legislatively-created Utah Public Service Commission performs a variety of duties, including those that fall distinctly within legislative, administrative, and adjudicative categories. Id. at 1314. In order to perform the adjudicative function of hearing and resolving disputes between competing and protesting utilities, the Public Service Commission must be able to deliberate and arrive at decisions in private. Id. We therefore concluded that the Public Service Commission’s adjudicative function was quasi-judicial, and that as a result the Open and Public Meetings Act did not apply when the Public Service Commission acts in its adjudicative role. Id. In concluding that the Public Service Commission’s deliberative sessions need not be open to the public, we balanced two competing interests:


[T]he obviously desirable objective of giving the public, … the fullest possible degree of knowledge of the matter under consideration, and of affording the opportunity to supply information and to engage in dialogue and the exchange of ideas[; against the interest that] after all of the evidence and information has been furnished to the Commission, the process of analysis, deliberation, and arriving at a decision, should be permitted to take place in an atmosphere of peace and privacy, … so that the commissioners have the opportunity for a frank and unrestricted discussion and exchange of ideas in order that they can arrive at the best possible decision… .


Id. at 1313-14.


¶ 13 This case, however, is different from Common Cause because here we are not presented with the question of whether the Salt Lake County Commission closed the meeting to conduct a quasi-judicial deliberative function, but whether the County Commission’s meeting could be closed under the Act to discuss strategy with respect to an entire adversarial process, the process of protesting an annexation petition before the county Boundary Commission. In other words, the question is whether the entire process before a county boundary commission, a process that involves both legislative and judicial aspects, constitutes litigation for purposes of the Open and Public Meetings Act, from the perspective of the County Commission. Moreover, we are not balancing interests as we did in Common Cause. We are interpreting legislation which, on the one hand expresses clear legislative intent that the deliberations of state agencies and political subdivisions be conducted openly, against an exception to that mandate that permits meetings to be closed for “strategy sessions to discuss pending or reasonably imminent litigation.” § 52-4-5.


 


I. INTERPRETATION OF EXCEPTIONS TO THE UTAH OPEN AND PUBLIC MEETINGS ACT


 


¶ 14 When we interpret statutes, we “give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve.” [citations omitted]


¶ 15 The legislature expressly declared its purpose in enacting the Utah Open and Public Meetings Act in section 52-4-1, which reads, “It is the intent of the law that [the] actions [of the state, its agencies and political subdivisions,] be taken openly and that their deliberations be conducted openly.” Utah Code Ann. § 52-4-1 (1998). As a result, we interpret the Utah Open and Public Meetings Act broadly to further the declared statutory purpose of openness. Because we construe the Act broadly, it therefore follows that the exceptions be strictly construed. In this case we construe the litigation exception narrowly so as to give effect to the legislative intent. We further note the intent of the legislature to permit some meetings to be closed under certain circumstances. In carrying out the purpose of openness, the legislature could have chosen to make the open meetings requirement absolute. It chose, however, to exclude some meetings from the openness requirement.


¶ 16 The statutory provision in question permits an otherwise public meeting to be closed by a public body for “strategy sessions to discuss pending or reasonably imminent litigation.” Utah Code Ann. § 52-4-5(1)(a)(iii). In order for the Salt Lake County Commission not to have violated the Act by closing the March 30, 1998 meeting, the closed portion of the meeting (1) must have been a strategy session, (2) the strategy session must have been with respect to litigation, and (3) the litigation must have been pending or reasonably imminent.


 


A. Whether the Closed Portion of the Meeting was a Strategy Session


 


¶ 17 The trial court, after reviewing the minutes of the March 30, 1998 meeting in camera, concluded that the County Commission “did not conduct a strategy session, rather it discussed the underlying policy question of whether to take any action at all.” The district court stated that in order to close a meeting under section 52-4-5(1)(a)(iii), the focus of the public body’s discussion must be on litigation strategy, which could include a discussion of claims or defenses, strengths and weaknesses of the public body’s position, whether to hire outside counsel, settlement posture, etc.


¶ 18 We conclude that the closed portion of the meeting was a strategy session. In generally accepted terms, to strategize means to devise plans or means to achieve an end. The Salt Lake County Commission devised a plan or course of action and put it in motion during the private portion of the March 30, 1998 meeting. It is uncontested that counsel for the County Commission explained the factual and procedural circumstances leading to, and the possible results of, Riverton City’s annexation petition. Next, counsel informed the County Commission that South Jordan City had already protested Riverton City’s petition and offered three possible courses of action for the County Commission to take with respect to the petition: (1) send a letter to Riverton City listing technical problems with the petition, but refrain from appearing before the Boundary Commission; (2) appear, through counsel, before the Boundary Commission and address only technical problems with the petition; or (3) file a formal protest opposing the annexation. Moreover, counsel also suggested that one option regarding the protest of technicalities not be pursued; and at the end of the private session, the County Commission selected a course of action, agreeing to appear before the Boundary Commission and to send a letter to Riverton City identifying technical problems. This closed session during which the County Commission was informed of the background of the Riverton City annexation petition, was advised on how to respond to the petition, was given a recommended course of action, and decided on a course of action, constitutes a strategy session.


 


B. Whether Disputes Before the Boundary Commission Constitute Litigation


 


¶ 19 Having concluded the closed portion of the meeting was a strategy session, the question becomes whether the meeting was a discussion of litigation strategy, or whether it was strategy with respect to a non-litigation process. Essentially, we must decide whether an annexation matter before the Boundary Commission is litigation.


¶ 20 The County Commission reasons that county boundary commission proceedings are pending or reasonably imminent litigation because annexation proceedings before a boundary commission include adverse parties, representation, notice, witnesses, evidence, exhibits, transcripts, appeals to the district court, etc., and are therefore quasi-judicial proceedings that qualify as litigation. Kearns-Tribune, on the other hand, argues that boundary commission proceedings are legislative proceedings, not litigation. The amici also assert that annexation proceedings are not litigation. They say that the plain meaning of the term “litigation” implies court proceedings, and defining “litigation” to include agency proceedings would result in the litigation exception swallowing the general rule of openness intended by the Open and Public Meetings Act. Furthermore, the amici cite Bradshaw v. Beaver City, 27 Utah 2d 135, 493 P.2d 643 (Utah 1972), and Child v. City of Spanish Fork, 538 P.2d 184 (Utah 1975), for the proposition that annexation proceedings are legislative functions and are therefore not litigation. They argue that even though boundary commission proceedings may be similar to litigation procedurally, the substance of boundary commission decisions is a matter of public policy that should be debated publicly.


¶ 21 This court has clearly indicated that the determination of municipal boundaries is a legislative function, see Sweetwater Props. v. Town of Alta, 622 P.2d 1178, 1180 (Utah 1981); Freeman v. Centerville City, 600 P.2d 1003, 1005 (Utah 1979); Child, 538 P.2d at 186; Bradshaw, 27 Utah 2d at 137, 493 P.2d at 645, and we do not depart from this conclusion. More accurately, the determination of municipal boundaries is a function of the state legislature, as opposed to a local legislative body. This is because local governmental bodies, as political subdivisions of the state, have no inherent control over their own boundaries as they derive their powers from the State. See, e.g., Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 607-08, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) (stating that it is well settled that local governmental units are created as agencies for exercising the State’s governmental powers and that the governmental powers that may be entrusted to local governments are granted in the absolute discretion of the State); see also 1 Antieau on Local Government Law § 3.01 (2d ed.2000). Accordingly, we maintain that the determination of municipal boundaries, including land annexation, is a legislative function within the control of the state legislature.


¶ 22 Our legislature has delegated, to a certain extent, this authority over annexation and has enacted a statutory system that controls the annexation process. See Utah Code Ann. § 10-2-401 to -426 (1999 & Supp.2000). Because of this statutory scheme, local governments in our state are authorized to annex land, provided they follow the statutory guidelines. Moreover, as part of the statutory framework, the legislature also created a mechanism for the resolution of annexation disputes. This method of dispute resolution involves county boundary commissions.


¶ 23 The process of annexing an unincorporated area to a municipality generally begins with the filing of an annexation petition. Compare Utah Code Ann. § 10-2-402(2) (1999) (“Except as provided in Section 10-2-418, a municipality may not annex an unincorporated area unless a petition under Section 10-2-403 is filed requesting annexation”), and Utah Code Ann. § 10-2-403(1) (1999) (“Except as provided in Section 10-2-418, the process to annex an unincorporated area to a municipality is initiated by a petition as provided in this section”), with Utah Code Ann. § 10-2-418 (1999) (explaining how, notwithstanding subsection 10-2-402(2), a municipality may annex an area without an annexation petition if, for example, the area to be annexed consists of islands within or peninsulas contiguous to the municipality). The annexation petition is filed with the city recorder or town clerk of the proposed annexing municipality. § 10-2-403(2)(a). The legislative body of the proposed annexing municipality may either deny or accept the petition. § 10-2-405(1)(a). If the legislative body of the proposed municipality accepts the petition, the city recorder or town clerk for that municipality then determines if the petition is valid by deciding whether the petition meets the necessary requirements of subsections 10-2-403(2), (3), and (4). § 10-2-405(2)(a). If the petition passes muster, the city recorder or town clerk then certifies the petition and provides written notice of the certification to various persons and entities, including the county legislative body. § 10-2-405(2)(b)(i).


¶ 24 The legislative annexation scheme then permits the county legislative body to oppose an annexation petition by filing a protest to the petition, Utah Code Ann. § 10-2-407(1)(a)(i) (Supp.2000), thereby creating an adversarial process. The protest is filed with either the county boundary commission, § 10-2-407(2)(a)(i)(B)(I), or with the clerk of the county in which the area proposed for annexation is located if the county has not yet created a boundary commission, § 10-2-407(2)(a)(i)(B)(II). Regardless of with whom the protest is filed, an existing boundary commission must review the annexation petition and protest, or one must be formed to do so. See Utah Code Ann. § 10-2-409 (1999) (explaining that at the time a protest is filed, a boundary commission may already exist because a county legislative body may create a boundary commission at any time, and that if a boundary commission does not exist at the time a protest is filed under section 10-2-407, the county legislative body must form a boundary commission within thirty days of the filing of the protest). In other words, the legislature provided that where an annexation petition is protested, each county must create, at some point, a boundary commission to resolve the dispute.


¶ 25 Once created, the role of a county boundary commission is to “hear and decide, according to the provisions of this part,1 each protest filed under Section 10-2-407, with respect to any area within that county.” § 10-2-412. In essence the boundary commission is required to apply the rules promulgated by the legislature regarding annexation to factual circumstances before it. The boundary commission is instructed to issue a written decision on the proposed annexation. § 10-2-416(2). In this sense, the mandate to resolve disputes between adverse parties by applying rules of law to a particular set of facts is judicial in nature, meaning the boundary commission performs a judicial function.


¶ 26 However, in performing its role of deciding protests, the boundary commission generally retains a “feasibility consultant” to conduct a “feasibility study,” see § 10-2-413, and then holds a public hearing, see § 10-2-415. A feasibility consultant is required to analyze and report on different factors pertaining to the area proposed for annexation including, among other things, population and population density, natural boundaries, current and five-year projections of demographics and economic base, projected growth over the next five years, projected revenues and costs of governmental services for the next five years, cultural and social aspects of the surrounding area, and the potential effect on school districts. § 10-2-413(3)(a). At the hearing, the feasibility consultant presents the results of the feasibility study, and the boundary commission takes public comment. As such, the boundary commission considers whether a proposed annexation is good policy. In this sense, the boundary commission acts in a legislative capacity. In sum, the boundary commission functions as both a legislative body and an adjudicative body.


¶ 27 Nevertheless, the role of a county boundary commission is, on the whole, essentially one of resolving disputes between competing parties, the petitioner and the protesting party. Thus, even though the boundary commission engages a consultant to gather information and present recommendations on matters of policy, the county boundary commission is mandated by the legislature to apply the law to the facts and information presented to it by the feasibility consultant, petitioner, and protester. See §§ 10-2-402, 403. For these reasons, we conclude that boundary commissions act as quasi-judicial bodies when considering annexation petitions and protests.


¶ 28 In addition, we are further persuaded that the process of considering annexation petitions and protests is litigation. First, decisions of a county boundary commission are subject to judicial review. “Review of a boundary commission decision may be sought in the district court… .” § 10-2-417(1). Even though the district court reviews the decision of the boundary commission under an arbitrary and capricious standard, see § 10-2-417(2) & (3), the district court is authorized to review whether the decision of the commission was contrary to the annexation laws set forth by the state legislature.


¶ 29 Plaintiff Kearns-Tribune also acknowledged before the district court that “a proceeding before a tribunal like the Utah State Tax Commission would qualify as ‘litigation’ for the purposes of the litigation exception.” Plaintiff argued before the district court, however, that proceedings before the Tax Commission were different from proceedings before the Salt Lake County Boundary Commission because, according to plaintiff, the Boundary Commission lacked rules of procedure like the Tax Commission. We are persuaded, however, that county boundary commission proceedings are analogous to contested proceedings before the State Tax Commission2 and constitute litigation under the litigation exception to the Open and Public Meetings Act. The Salt Lake County Boundary Commission conducts its proceedings pursuant to rules of procedure and the proceedings before the Boundary Commission bear all of the necessary accouterments of litigation.


¶ 30 We conclude that while county boundary commissions perform both legislative and adjudicative functions, the method of resolving annexation disputes through county boundary commissions is quasi-judicial, and it constitutes litigation for purposes of the Utah Public and Open Meetings Act.


 


C. Whether the Dispute before the Boundary Commission was Pending or Reasonably Imminent


 


¶ 31 In the instant case, it is undisputed that the annexation proceeding discussed by the County Commission was already pending before the Boundary Commission. As a result, the County Commission did not violate the Open and Public Meetings Act by closing the March 30, 1998 meeting to discuss whether to protest Riverton City’s annexation petition before the Salt Lake County Boundary Commission. As a matter of law, the closed portion of the meeting constituted a strategy session to discuss pending or reasonably imminent litigation.


… .


 


CONCLUSION


 


¶ 35 The district court erred in concluding that the Salt Lake County Commission violated the Utah Open and Public Meetings Act when it closed part of the March 30, 1998 meeting to discuss how to address an annexation petition filed by Riverton City with the Boundary Commission. The Act permits closed meetings for “strategy sessions to discuss pending or reasonably imminent litigation,” § 52-4-5(1)(a)(iii), and the County Commission conducted a strategy session in which it discussed courses of action to take regarding Riverton City’s annexation petition then pending before the Salt Lake County Boundary Commission, proceedings that constitute litigation under the Act.


¶ 36 Accordingly, the trial court’s order granting plaintiff’s motion for summary judgment is reversed, and the award of attorney fees to plaintiff is vacated.


¶ 37 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Judge TAYLOR concur in Justice WILKINS’ opinion.


¶ 38 Having disqualified himself, Justice DURRANT does not participate herein; District Judge TAYLOR sat.




FOOTNOTES

  1. Part 4 of title 10, chapter 2, of the Utah Code includes sections 401 to 426, the statutory provisions pertaining to annexation.


  2. We have previously indicated that the Tax Commission is a quasi-judicial body, Salt Lake County v. Tax Comm’n, 532 P.2d 680, 682 (Utah 1975), that is also subject to judicial review, see Utah Code Ann. §§ 59-1-601 to -610 (outlining the method of judicial review of tax commission decisions).


Shanks v. Dressel,

540 F.3d 1082 (2008)



Charles A. Cleveland, Spokane, WA, for the plaintiffs-appellants.


James S. Craven, City Attorney, Milton G. Rowland (argued), Assistant City Attorney, Spokane, WA, for the Spokane and Spokane employee defendants-appellees.


Steven Schneider, Murphy, Bantz & Bury P.S., Spokane, WA, for the Dressel defendants-appellees.


 


Fisher, Circuit Judge:


 


… .


The Mission Avenue Historic District (“District”) lies just north of Gonzaga University in the city of Spokane, Washington (“Spokane”). The District is listed on the National Register of Historic Places, a designation conferred by the Secretary of the Interior pursuant to the National Historic Preservation Act of 1966 (“NHPA”). See 16 U.S.C. § 470a(a). It is architecturally noteworthy because it includes a “significant collection of late 19th and early 20th century houses located on one of the city’s oldest landscaped boulevards.” On both sides of Mission Avenue are a “variety of Queen Anne, Four Square, Craftsman, and bungalow style houses that reflect the substantial architecture of the period and the original suburban character of the area.”


In March 2005, Spokane granted the Dressels a building permit to construct a duplex addition to 428 East Mission, a clapboard-sided, Four Square house located within the District and inventoried on the District’s nomination for the National Register of Historic Places. The Dressels demolished an existing garage on the property and erected a “box-like dormitory building[ ] … attached” to the original house.


We summarize the municipal ordinances that Logan Neighborhood alleges have been violated. In 1981, the city amended the Spokane Municipal Code (“SMC”) to provide “criteria and procedures for the… management of historic landmarks.” A newly created Historic Landmarks Commission was charged with the “stewardship of historic and architecturally-significant properties … to effect the recognition and preservation of such properties.” Two of its responsibilities are relevant here: reviewing applications for “certificates of appropriateness,” as provided by SMC 17D.040.200, and reviewing requests for “administrative special permits,” as provided by SMC 11.19.270. See SMC 17D.040.080(C)(1)(d), (f).


SMC 17D.040.200 requires owners to obtain a certificate of appropriateness for “work that affects the exterior … of … property within an historic district” or for “development or new construction within an historic district.” In evaluating an application for a certificate of appropriateness, the Historic Landmarks Commission “uses the Secretary of the Interior’s Standards for Rehabilitation and other general guidelines established and adopted by the commission.” SMC 17D.040.210(B). The owner of a property and the Commission may negotiate “different management standards for a specific piece of property,” subject to the approval of the Spokane City Council. See SMC 17D.040.270-.280.


SMC 11.19.270 provides for special “development standards” that apply “only to those historic districts for which ‘defining characteristics’ have been prepared by the landmarks commission, and those structures or properties listed in the National Register of Historic Places.” When these standards apply, proposed construction requires an “administrative special permit” from the director of planning services. The Historic Landmarks Commission “make[s] recommendations concerning the approval or denial of the special permit.” SMC 17D.040.080(C)(1)(f). It “issues a certificate of appropriateness in support of approval” only if the construction is “of a character which is consistent with the defining characteristics of the historic district, or the U.S. Department of Interior standards in the case of structures or properties listed in the National Register but not located within an historic district.” SMC 11.19.270(D)(3)(b). If no action is taken within 35 days, the application is “deemed approved.” SMC 11.19.270(D)(3)(c). In any event, the Commission’s recommendation “will not otherwise preclude” the director of planning services from reaching a “contrary decision” upon “consideration of other factors of public interest.” Id.


The Dressels did not seek a certificate of appropriateness or an administrative special permit for their development of the 428 East Mission property, nor has Spokane taken any steps to require them to do so. Logan Neighborhood alleges that the Dressels’ construction has compromised the historic character of the Mission Avenue Historic District, resulting in harm to its “cultural, architectural, educational, recreational, aesthetic, historic, and economic interests.” Its complaint asserts three claims: (1) that Spokane violated 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment by not enforcing the Spokane Municipal Code; (2) that Spokane and the Dressels violated the National Historic Preservation Act; and (3) that Spokane and Spokane employees violated the Spokane Municipal Code. The district court granted Spokane’s motion for summary judgment and the Dressels’ motion to dismiss.


… .


We are … not convinced by Logan Neighborhood’s argument that it has been deprived of procedural due process because it did not have fair notice and an opportunity to be heard before Spokane issued the Dressels a building permit. Logan Neighborhood claims a constitutionally protected property interest in the denial of the permit unless the city “compl[ied] with the Spokane Municipal Code applicable to historic districts.” It contends that the historic preservation provisions obliged Spokane to hold a public “design review taking into account the Mission Avenue Historic District” and complying with the certificate of appropriateness and administrative special permit requirements.1 Even if Logan Neighborhood’s interpretation of the Spokane Municipal Code is correct – the parties dispute whether construction in the District is subject to those additional requirements – it has not stated a viable claim.


The claim is an unusual one; more typically, the plaintiff asserts that it personally was denied a permit without due process of law, not that someone else was granted a permit without the decisionmaker following the procedure established by state law. See Gagliardi, 18 F.3d at 191 (describing argument as “rather unique”); see generally Dumas v. Kipp, 90 F.3d 386, 392 (9th Cir.1996) (citing O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980), and noting distinction between direct and indirect beneficiaries of government regulation). Assuming without deciding that a property owner ever could have a constitutionally protected interest in the proper application of zoning restrictions to neighboring properties, see id. at 192, we conclude that Logan Neighborhood’s procedural due process claim fails because Spokane’s historic preservation provisions do not “contain[ ] mandatory language” that significantly constrains the decisionmaker’s discretion. Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980).


We apply our conventional analytic framework. See Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1217 & n.4 (10th Cir.2003) (rejecting distinction between inquiry for “due process claims brought by a landowner who received an unfavorable decision on its own application for a particular land use” and inquiry for claim brought “challeng[ing] the decision … to grant [a third-party’s] proposed land use”) (emphasis added); see also Gagliardi, 18 F.3d at 192-93. To obtain relief on a procedural due process claim, the plaintiff must establish the existence of “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir.1993). The Due Process Clause forbids the governmental deprivation of substantive rights without constitutionally adequate procedure. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Not every procedural requirement ordained by state law, however, creates a substantive property interest entitled to constitutional protection. See Dorr v. County of Butte, 795 F.2d 875, 877(9th Cir.1986); see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 764, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005); Hayward v. Henderson, 623 F.2d 596, 597 (9th Cir. 1980). Rather, only those “rules or understandings” that support legitimate claims of entitlement give rise to protected property interests. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).


Logan Neighborhood does not have a legitimate claim of entitlement to the denial of the Dressels’ permit in accordance with the historic preservation provisions. Only if the governing statute compels a result “upon compliance with certain criteria, none of which involve the exercise of discretion by the reviewing body,” does it create a constitutionally protected property interest. Thornton v. City of St. Helens, 425 F.3d 1158, 1164-65 (9th Cir.2005); see also Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir.1998) (holding that “specific, mandatory” and “carefully circumscribed” requirements constrained discretion enough to give rise to property interest). Conversely, “a statute that grants the reviewing body unfettered discretion to approve or deny an application does not create a property right.” Thornton, 425 F.3d at 1164. There is no protected property interest if “the reviewing body has discretion … to impose licensing criteria of its own creation.” Id. at 1165.


We have not been directed to any statutory language that “impose[s] particularized standards … that significantly constrain” Spokane’s discretion to issue the permits in question and would create a protected property interest in the permits’ denial. See Fidelity Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1436 (9th Cir.1986). The Historic Landmarks Commission is to apply “defining characteristics … prepared” and “general guidelines established and adopted” by that very same body. The Commission also has the freedom to negotiate “different management standards” for any particular piece of property. In deciding whether to approve an administrative special permit, the director of planning services is to apply “other factors of public interest” in an unspecified way. Moreover, the ordinance requires only that the ultimate decisionmaker “use[ ]” or “consider[ ]” those open-ended criteria; it does not mandate any outcome. Finally, we are mindful that, as a matter of Washington law, building codes are not generally construed to impose an affirmative duty upon local governments to initiate compliance actions, and Logan Neighborhood has not directed us to any special features of Spokane’s historic preservation ordinance. See Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 799 P.2d 250, 264-65 (1990); Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447, 450 (1988).2 We conclude that the historic preservation provisions of the Spokane Municipal Code do not create a constitutionally cognizable property interest in the denial of a third-party’s building permit.


From this it follows that Logan Neighborhood’s procedural due process claim fails. Absent a substantive property interest in the outcome of procedure, Logan Neighborhood is not constitutionally entitled to insist on compliance with the procedure itself. “To hold otherwise would immediately incorporate virtually every regulation into the Constitution.” Clemente v. United States, 766 F.2d 1358, 1364 (9th Cir.1985). The Tenth and Second Circuits rejected very similar claims in Crown Point I and Gagliardi, respectively. See Crown Point I, 319 F.3d at 1216(plaintiffs alleged property interest in expectation that city would “follow its own mandatory notice and public hearing procedures as set forth in a city code, before depriving a [neighboring] landowner of the use and enjoyment of its property”); Gagliardi, 18 F.3d at 193 (plaintiffs “complain[ed] of a lack of notice and contend[ed] that certain affirmative actions were taken without compliance with the procedures established for municipal approval”). As is the case here, the ordinances in question did not significantly limit the municipal defendants’ discretion, so no substantive property interest with respect to permitting decisions was thereby created. See Crown Point I, 319 F.3d at 1217; Gagliardi, 18 F.3d at 192-93. Given this, both courts concluded the plaintiffs could not state a claim for a violation of the Due Process Clause: “The deprivation of a procedural right to be heard, however, is not actionable when there is no protected right at stake.” Gagliardi, 18 F.3d at 193; see also Crown Point I, 319 F.3d at 1217. We agree with the Second and Tenth Circuits’ reasoning and hold that Logan Neighborhood does not have a legitimate claim of entitlement to the “design review” allegedly required by the Spokane Municipal Code.


Nothing we say here condones unlawful official action, and we express no view about the legality of Spokane’s permitting decision as a matter of state law. See, e.g., Wash. Rev.Code § 36.70C.040 (Washington Land Use Petition Act); Clemente, 766 F.2d at 1365 (explaining that even when a plaintiff cannot “successfully claim a constitutionally cognizable property interest,” it is “well-settled … that regulations validly prescribed by an agency are binding upon it”). But we cannot agree with Logan Neighborhood that it has established a violation of the federal Due Process Clause. Cf. Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 832 n. 5 (9th Cir.2003) (remarking that the courts of appeals do not sit as “super zoning boards or zoning boards of appeals”) (internal quotation marks omitted).


… .


AFFIRMED.




FOOTNOTES

  1. The Spokane Municipal Code directs the “official responsible for processing the application” for “action which may require a certificate of appropriateness” – for example, a building permit – to request review by the Historic Landmarks Commission. See SMC 17D.040.240. The ordinance then provides for a public comment period, as well as a noticed public hearing. See SMC 17D.040.260(C)(1)(3).


  2. Cf. Asche v. Bloomquist, 132 Wash.App. 784, 133 P.3d 475, 479-82 (2006) (reasoning that plaintiffs “had a property right, created by the … [view protection] zoning ordinance, in preventing [their neighbors] from building a structure over” a certain height without their approval).


3.4. Discriminatory Zoning


Village of Willowbrook v. Olech,

528 U.S. 562, 120 S.Ct. 1073 (2000).




Per Curiam.




Respondent Grace Olech and her late husband Thaddeus asked petitioner Village of Willowbrook (Village) to connect their property to the municipal water supply. The Village at first conditioned the connection on the Olechs granting the Village a 33-foot easement. The Olechs objected, claiming that the Village only required a 15-foot easement from other property owners seeking access to the water supply. After a 3-month delay, the Village relented and agreed to provide water service with only a 15-foot easement.


Olech sued the Village, claiming that the Village’s demand of an additional 18-foot easement violated the Equal Protection Clause of the Fourteenth Amendment. Olech asserted that the 33-foot easement demand was “irrational and wholly arbitrary”; that the Village’s demand was actually motivated by ill will resulting from the Olechs’ previous filing of an unrelated, successful lawsuit against the Village; and that the Village acted either with the intent to deprive Olech of her rights or in reckless disregard of her rights. App. 10, 12.


The District Court dismissed the lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable claim under the Equal Protection Clause. Relying on Circuit precedent, the Court of Appeals for the Seventh Circuit reversed, holding that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a “ ‘spiteful effort to “get” him for reasons wholly unrelated to any legitimate state objective.’ ” 160 F.3d 386, 387 (1998) (quoting Esmail v. Macrane, 53 F.3d 176, 180 (C.A.7 1995)). It determined that Olech’s complaint sufficiently alleged such a claim. 160 F.3d, at 388. We granted certiorari to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a “class of one” where the plaintiff did not allege membership in a class or group.1 527 U.S. 1067, 120 S.Ct. 10, 144 L.Ed.2d 841 (1999).


Our cases have recognized successful equal protection claims brought by a “class of one,” where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). In so doing, we have explained that “ ‘the purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’ ” Sioux City Bridge Co., supra, at 445, 43 S.Ct. 190 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, 38 S.Ct. 495, 62 L.Ed. 1154 (1918)).


That reasoning is applicable to this case. Olech’s complaint can fairly be construed as alleging that the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint also alleged that the Village’s demand was “irrational and wholly arbitrary” and that the Village ultimately connected her property after receiving a clearly adequate 15-foot easement. These allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis. We therefore affirm the judgment of the Court of Appeals, but do not reach the alternative theory of “subjective ill will” relied on by that court.




It is so ordered.


 


Justice Breyer, concurring in the result.



The Solicitor General and the village of Willowbrook have expressed concern lest we interpret the Equal Protection Clause in this case in a way that would transform many ordinary violations of city or state law into violations of the Constitution. It might be thought that a rule that looks only to an intentional difference in treatment and a lack of a rational basis for that different treatment would work such a transformation. Zoning decisions, for example, will often, perhaps almost always, treat one landowner differently from another, and one might claim that, when a city’s zoning authority takes an action that fails to conform to a city zoning regulation, it lacks a “rational basis” for its action (at least if the regulation in question is reasonably clear).


This case, however, does not directly raise the question whether the simple and common instance of a faulty zoning decision would violate the Equal Protection Clause. That is because the Court of Appeals found that in this case respondent had alleged an extra factor as well-a factor that the Court of Appeals called “vindictive action,” “illegitimate animus,” or “ill will.” 160 F.3d 386, 388 (C.A.7 1998). And, in that respect, the court said this case resembled Esmail v. Macrane, 53 F.3d 176 (C.A.7 1995), because the Esmail plaintiff had alleged that the municipality’s differential treatment “was the result not of prosecutorial discretion honestly (even if ineptly-even if arbitrarily) exercised but of an illegitimate desire to ‘get’ him.” 160 F.3d, at 388.


In my view, the presence of that added factor in this case is sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right. For this reason, along with the others mentioned by the Court, I concur in the result.



  1. We note that the complaint in this case could be read to allege a class of five. In addition to Grace and Thaddeus Olech, their neighbors Rodney and Phyllis Zimmer and Howard Brinkman requested to be connected to the municipal water supply, and the Village initially demanded the 33-foot easement from all of them. The Zimmers and Mr. Brinkman were also involved in the previous, successful lawsuit against the Village, which allegedly created the ill will motivating the excessive easement demand. Whether the complaint alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis.


Anup Enquist v. Oregon Department of Agriculture,

553 U.S. 591 (2008)



ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.


 


Chief Justice Roberts delivered the opinion of the Court.


 


The question in this case is whether a public employee can state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class. We hold that such a “class-of-one” theory of equal protection has no place in the public employment context.


… .


Our equal protection jurisprudence has typically been concerned with governmental classifications that “affect some groups of citizens differently than others.” McGowan v. Maryland, 366 U. S. 420, 425 (1961). See, e.g., Ross v. Moffitt, 417 U. S. 600, 609 (1974) “‘Equal Protection’ … emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable”); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 60 (1973) (Stewart, J., concurring) (“[T]he basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes”). Plaintiffs in such cases generally allege that they have been arbitrarily classified as members of an “identifiable group.” Personnel Administrator of Mass.v. Feeney, 442 U. S. 256, 279 (1979).


Engquist correctly argues, however, that we recognized in Olech that an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called “class of one.” In Olech, a property owner had asked the village of Willowbrook to connect her property to the municipal water supply. Although the village had required only a 15-foot easement from other property owners seeking access to the water supply, the village conditioned Olech’s connection on a grant of a 33-foot easement. Olech sued the village, claiming that the village’s requirement of an easement 18 feet longer than the norm violated the Equal Protection Clause. Although Olech had not alleged that the village had discriminated against her based on membership in an identifiable class, we held that her complaint stated a valid claim under the Equal Protection Clause because it alleged that she had “been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” 528 U. S., at 564 (citing Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923), and Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989)).


Recognition of the class-of-one theory of equal protection on the facts in Olech was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle. That case involved the government’s regulation of property. Similarly, the cases upon which the Court in Olech relied concerned property assessment and taxation schemes. See Allegheny Pittsburgh, supra; Sioux City Bridge, supra. We expect such legislative or regulatory classifications to apply “without respect to persons,” to borrow a phrase from the judicial oath. See 28 U. S. C. §453. As we explained long ago, the Fourteenth Amendment “requires that all persons subjected to … legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Hayes v. Missouri, 120 U. S. 68, 71-72 (1887). When those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being “treated alike, under like circumstances and conditions.” Thus, when it appears that an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a “rational basis for the difference in treatment.” Olech, 528 U. S., at 564.


What seems to have been significant in Olech and the cases on which it relied was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations—at least not with regard to easement length, however typical such determinations may be as a general zoning matter. See id., at 565 (BREYER, J., concurring in result). Rather, the complaint alleged that the board consistently required only a 15-foot easement, but subjected Olech to a 33-foot easement. This differential treatment raised a concern of arbitrary classification, and we therefore required that the State provide a rational basis for it.


In Allegheny Pittsburgh, cited by the Olech Court, the applicable standard was market value, but the county departed from that standard in basing some assessments on quite dated purchase prices. Again, there was no suggestion that the “dramatic differences in valuation” for similar property parcels, 488 U. S., at 341, were based on subjective considerations of the sort on which appraisers often rely, see id., at 338-342, 345. Sioux City Bridge, also cited in Olech, was the same sort of case, recognizing an equal protection claim when one taxpayer’s property was assessed at 100 percent of its value, while all other property was assessed at 55 percent, without regard to articulated differences in the properties. See 260 U. S., at 445-447.


There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be “treated alike, under like circumstances and conditions” is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.


Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them. If the officer gives only one of those people a ticket, it may be good English to say that the officer has created a class of people that did not get speeding tickets, and a “class of one” that did. But assuming that it is in the nature of the particular government activity that not all speeders can be stopped and ticketed, complaining that one has been singled out for no reason does not invoke the fear of improper government classification. Such a complaint, rather, challenges the legitimacy of the underlying action itself—the decision to ticket speeders under such circumstances. Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action. It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized.


This principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify… . .


The judgment of the Court of Appeals is affirmed.


It is so ordered.


 


Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting.


 


… .


Our decision in Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam), applied a rule that had been an accepted part of our equal protection jurisprudence for decades: Unless state action that intentionally singles out an individual, or a class of individuals, for adverse treatment is supported by some rational justification, it violates the Fourteenth Amendment’s command that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”


Our opinion in Olech emphasized that the legal issue would have been the same whether the class consisted of one or five members, because “the number of individuals in a class is immaterial for equal protection analysis.” Id., at 564, n. The outcome of that case was not determined by the size of the disadvantaged class, and the majority does not—indeed cannot—dispute the settled principle that the Equal Protection Clause protects persons, not groups. See ante, at 4-5.


Nor did the outcome in Olech turn on the fact that the Village was discriminating against a property owner rather than an employee. The majority does not dispute that the strictures of the Equal Protection Clause apply to the States in their role as employers as well as regulators. See ante, at 5. And indeed, we have made clear that “the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and §1983 provides a cause of action for all citizens injured by an abridgment of those protections.” Collins v. Harker Heights, 503 U. S. 115, 119-120 (1992).


Rather, the outcome of Olech was dictated solely by the absence of a rational basis for the discrimination. As we explained:


“Our cases have recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. In so doing, we have explained that ‘[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’


“[Olech’s] complaint also alleged that the Village’s demand was ‘irrational and wholly arbitrary’ … . These allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.”


528 U. S., at 564, 565 (some internal quotation marks and citations omitted).


Here, as in Olech, Engquist alleged that the State’s actions were arbitrary and irrational. In response, the State offered no explanation whatsoever for its decisions; it did not claim that Engquist was a subpar worker, or even that her personality made her a poor fit in the work-place or that her colleagues simply did not enjoy working with her. In fact, the State explicitly disclaimed the existence of any workplace or performance-based rationale.1 … .


In sum, there is no compelling reason to carve arbitrary public-employment decisions out of the well-established category of equal protection violations when the familiar rational review standard can sufficiently limit these claims to only wholly unjustified employment actions. Accordingly, I respectfully dissent.




FOOTNOTES

  1. But for this disclaimer, the lower court could have dismissed the claim if it discerned “any reasonably conceivable state of facts that could provide a rational basis for the [State’s actions],” even one not put forth by the State. FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). The disclaimer, however, negated that possibility.


3.5. Anticompetitive Zoning


City of Columbia et al. v. Omni Outdoor Advertising, Inc.

499 U.S. 365 (1991)



No. 89-1671.


Supreme Court of the United States.


Argued November 28, 1990.


Decided April 1, 1991.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.




Joel I. Klein argued the cause for petitioners. With him on the briefs were Paul M. Smith, Roy D. Bates, James S. Meggs, David W. Robinson II, and Heyward E. McDonald.


A. Camden Lewis argued the cause for respondent. With him on the brief was Randall M. Chastain.1


 


Justice Scalia delivered the opinion of the Court.


 


This case requires us to clarify the application of the Sherman Act to municipal governments and to the citizens who seek action from them.


 


I


 


Petitioner Columbia Outdoor Advertising, Inc. (COA), a South Carolina corporation, entered the billboard business in the city of Columbia, South Carolina (also a petitioner here), in the 1940’s. By 1981 it controlled more than 95% of what has been conceded to be the relevant market. COA was a local business owned by a family with deep roots in the community, and enjoyed close relations with the city’s political leaders. The mayor and other members of the city council were personal friends of COA’s majority owner, and the company and its officers occasionally contributed funds and free billboard space to their campaigus. According to respondent Omni Outdoor Advertising, Inc., these beneficences were part of a “longstanding” “secret anticompetitive agreement” whereby “the City and COA would each use their [sic] respective power and resources to protect … COA’s monopoly position,” in return for which “City Council members received advantages made possible by COA’s monopoly.” Brief for Respondent 12, 16.


In 1981, Omni, a Georgia corporation, began erecting billboards in and around the city. COA responded to this competition in several ways. First, it redoubled its own billboard construction efforts and modernized its existing stock. Second–according to Omni–it took a number of anticompetitive private actions, such as offering artificially low rates, spreading untrue and malicious rumors about Omni, and attempting to induce Omni’s customers to break their contracts. Finally (and this is what gives rise to the issue we address today), COA executives met with city officials to seek the enactment of zoning ordinances that would restrict billboard construction. COA was not alone in urging this course; concerned about the city’s recent explosion of billboards, a number of citizens, including writers of articles and editorials in local newspapers, advocated restrictions.


In the spring of 1982, the city council passed an ordinance requiring the council’s approval for every billboard constructed in downtown Columbia. This was later amended to impose a 180-day moratorium on the construction of billboards throughout the city, except as specifically authorized by the council. A state court invalidated this ordinance on the ground that its conferral of unconstrained discretion upon the city council violated both the South Carolina and Federal Constitutions. The city then requested the State’s regional planning authority to conduct a comprehensive analysis of the local billboard situation as a basis for developing a final, constitutionally valid, ordinance. In September 1982, after a series of public hearings and numerous meetings involving city officials, Omni, and COA (in all of which, according to Omni, positions contrary to COA’s were not genuinely considered), the city council passed a new ordinance restricting the size, location, and spacing of billboards. These restrictions, particularly those on spacing, obviously benefited COA, which already had its billboards in place; they severely hindered Omni’s ability to compete.


In November 1982, Omni filed suit against COA and the city in Federal District Court, charging that they had violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2,2 as well as South Carolina’s Unfair Trade Practices Act, S. C. Code Ann. § 39-5-140 (1976). Omni contended, in particular, that the city’s billboard ordinances were the result of an anticompetitive conspiracy between city officials and COA that stripped both parties of any immunity they might otherwise enjoy from the federal antitrust laws. In January 1986, after more than two weeks of trial, a jury returned general verdicts against the city and COA on both the federal and state claims. It awarded damages, before trebling, of $600,000 on the § 1 Sherman Act claim, and $400,000 on the § 2 claim.3 The jury also answered two special interrogatories, finding specifically that the city and COA had conspired both to restrain trade and to monopolize the market. Petitioners moved for judgment notwithstanding the verdict, contending among other things that their activities were outside the scope of the federal antitrust laws. In November 1988, the District Court granted the motion.


A divided panel of the United States Court of Appeals for the Fourth Circuit reversed the judgment of the District Court and reinstated the jury verdict on all counts. 891 F. 2d 1127 (1989). We granted certiorari, 496 U. S. 935 (1990).


 


II


 


In the landmark case of Parker v. Brown, 317 U. S. 341 (1943), we rejected the contention that a program restricting the marketing of privately produced raisins, adopted pursuant to California’s Agricultural Prorate Act, violated the Sherman Act. Relying on principles of federalism and state sovereignty, we held that the Sherman Act did not apply to anticompetitive restraints imposed by the States “as an act of government.” Id., at 352.


Since Parker emphasized the role of sovereign States in a federal system, it was initially unclear whether the governmental actions of political subdivisions enjoyed similar protection. In recent years, we have held that Parker immunity does not apply directly to local governments, see Hallie v. Eau Claire, 471 U. S. 34, 38 (1985); Community Communications Co. v. Boulder, 455 U. S. 40, 50-51 (1982); Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 412-413 (1978) (plurality opinion). We have recognized, however, that a municipality’s restriction of competition may sometimes be an authorized implementation of state policy, and have accorded Parker immunity where that is the case.


The South Carolina statutes under which the city acted in the present case authorize municipalities to regulate the use of land and the construction of buildings and other structures within their boundaries.4 It is undisputed that, as a matter of state law, these statutes authorize the city to regulate the size, location, and spacing of billboards. It could be argued, however, that a municipality acts beyond its delegated authority, for Parker purposes, whenever the nature of its regulation is substantively or even procedurally defective. On such an analysis it could be contended, for example, that the city’s regulation in the present case was not “authorized” by S. C. Code Ann. § 5-23-10 (1976), see n. 3, supra, if it was not, as that statute requires, adopted “for the purpose of promoting health, safety, morals or the general welfare of the community.” As scholarly commentary has noted, such an expansive interpretation of the Parker-defense authorization requirement would have unacceptable consequences.


“To be sure, state law ‘authorizes’ only agency decisions that are substantively and procedurally correct. Errors of fact, law, or judgment by the agency are not ‘authorized.’ Erroneous acts or decisions are subject to reversal by superior tribunals because unauthorized. If the antitrust court demands unqualified ‘authority’ in this sense, it inevitably becomes the standard reviewer not only of federal agency activity but also of state and local activity whenever it is alleged that the governmental body, though possessing the power to engage in the challenged conduct, has actually exercised its power in a manner not authorized by state law. We should not lightly assume that Lafayette’s authorization requirement dictates transformation of state administrative review into a federal antitrust job. Yet that would be the consequence of making antitrust liability depend on an undiscriminating and mechanical demand for ‘authority’ in the full administrative law sense.” P. Areeda & H. Hovenkamp, Antitrust Law ¶ 212.3b, p. 145 (Supp. 1989).


We agree with that assessment, and believe that in order to prevent Parker from undermining the very interests of federalism it is designed to protect, it is necessary to adopt a concept of authority broader than what is applied to determine the legality of the municipality’s action under state law. We have adopted an approach that is similar in principle, though not necessarily in precise application, elsewhere. See Stump v. Sparkman, 435 U. S. 349 (1978). It suffices for the present to conclude that here no more is needed to establish, for Parker purposes, the city’s authority to regulate than its unquestioned zoning power over the size, location, and spacing of billboards.


Besides authority to regulate, however, the Parker defense also requires authority to suppress competition–more specifically, “clear articulation of a state policy to authorize anticompetitive conduct” by the municipality in connection with its regulation. Hallie, 471 U. S., at 40 (internal quotation omitted). We have rejected the contention that this requirement can be met only if the delegating statute explicitly permits the displacement of competition, see id., at 41-42. It is enough, we have held, if suppression of competition is the “foreseeable result” of what the statute authorizes, id., at 42. That condition is amply met here. The very purpose of zoning regulation is to displace unfettered business freedom in a manner that regularly has the effect of preventing normal acts of competition, particularly on the part of new entrants. A municipal ordinance restricting the size, location, and spacing of billboards (surely a common form of zoning) necessarily protects existing billboards against some competition from newcomers.5


The Court of Appeals was therefore correct in its conclusion that the city’s restriction of billboard construction was prima facie entitled to Parker immunity. The Court of Appeals upheld the jury verdict, however, by invoking a “conspiracy” exception to Parker that has been recognized by several Courts of Appeals. See, e. g., Whitworth v. Perkins, 559 F.2d 378 (CA5 1977), vacated, 435 U. S. 992, aff’d on rehearing, 576 F.2d 696 (1978), cert. denied, 440 U. S. 911 (1979). That exception is thought to be supported by two of our statements in Parker: “[W]e have no question of the state or its municipality becoming a participant in a private agreement or combination by others for restraint of trade, cf. Union Pacific R. Co. v. United States, 313 U. S. 450.” Parker, 317 U. S., at 351-352 (emphasis added). “The state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit.” Id., at 352 (emphasis added). Parker does not apply, according to the Fourth Circuit, “where politicians or political entities are involved as conspirators” with private actors in the restraint of trade. 891 F. 2d, at 1134.


There is no such conspiracy exception. The rationale of Parker was that, in light of our national commitment to federalism, the general language of the Sherman Act should not be interpreted to prohibit anticompetitive actions by the States in their governmental capacities as sovereign regulators. The sentences from the opinion quoted above simply clarify that this immunity does not necessarily obtain where the State acts not in a regulatory capacity but as a commercial participant in a given market. That is evident from the citation of Union Pacific R. Co. v. United States, 313 U. S. 450 (1941), which held unlawful under the Elkins Act certain rebates and concessions made by Kansas City, Kansas, in its capacity as the owner and operator of a wholesale produce market that was integrated with railroad facilities. These sentences should not be read to suggest the general proposition that even governmental regulatory action may be deemed private–and therefore subject to antitrust liability–when it is taken pursuant to a conspiracy with private parties. The impracticality of such a principle is evident if, for purposes of the exception, “conspiracy” means nothing more than an agreement to impose the regulation in question. Since it is both inevitable and desirable that public officials often agree to do what one or another group of private citizens urges upon them, such an exception would virtually swallow up the Parker rule: All anticompetitive regulation would be vulnerable to a “conspiracy” charge. See Areeda & Hovenkamp, supra, ¶ 203.3b, at 34, and n. 1; Elhauge, The Scope of Antitrust Process, 104 Harv. L. Rev. 667, 704-705 (1991).6


Omni suggests, however, that “conspiracy” might be limited to instances of governmental “corruption,” defined variously as “abandonment of public responsibilities to private interests,” Brief for Respondent 42, “corrupt or bad faith decisions,” id., at 44, and “selfish or corrupt motives,” ibid. Ultimately, Omni asks us not to define “corruption” at all, but simply to leave that task to the jury: “[a]t bottom, however, it was within the jury’s province to determine what constituted corruption of the governmental process in their community.” Id., at 43. Omni’s amicus eschews this emphasis on “corruption,” instead urging us to define the conspiracy exception as encompassing any governmental act “not in the public interest.” Brief for Associated Builders and Contractors, Inc., as Amicus Curiae 5.


A conspiracy exception narrowed along such vague lines is similarly impractical. Few governmental actions are immune from the charge that they are “not in the public interest” or in some sense “corrupt.” The California marketing scheme at issue in Parker itself, for example, can readily be viewed as the result of a “conspiracy” to put the “private” interest of the State’s raisin growers above the “public” interest of the State’s consumers. The fact is that virtually all regulation benefits some segments of the society and harms others; and that it is not universally considered contrary to the public good if the net economic loss to the losers exceeds the net economic gain to the winners. Parker was not written in ignorance of the reality that determination of “the public interest” in the manifold areas of government regulation entails not merely economic and mathematical analysis but value judgment, and it was not meant to shift that judgment from elected officials to judges and juries. If the city of Columbia’s decision to regulate what one local newspaper called “billboard jungles,” Columbia Record, May 21, 1982, p. 14-A, col. 1; App. in No. 88-1388 (CA4), p. 3743, is made subject to ex post facto judicial assessment of “the public interest,” with personal liability of city officials a possible consequence, we will have gone far to “compromise the States’ ability to regulate their domestic commerce,” Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48, 56 (1985). The situation would not be better, but arguably even worse, if the courts were to apply a subjective test: not whether the action was in the public interest, but whether the officials involved thought it to be so. This would require the sort of deconstruction of the governmental process and probing of the official “intent” that we have consistently sought to avoid.7 “[W]here the action complained of … was that of the State itself, the action is exempt from antitrust liability regardless of the State’s motives in taking the action.” Hoover v. Ronwin, 466 U. S. 558, 579-580 (1984). See also Llewellyn v. Crothers, 765 F. 2d 769, 774 (CA9 1985) (Kennedy, J.).


The foregoing approach to establishing a “conspiracy” exception at least seeks (however impractically) to draw the line of impermissible action in a manner relevant to the purposes of the Sherman Act and of Parker: prohibiting the restriction of competition for private gain but permitting the restriction of competition in the public interest. Another approach is possible, which has the virtue of practicality but the vice of being unrelated to those purposes. That is the approach which would consider Parker inapplicable only if, in connection with the governmental action in question, bribery or some other violation of state or federal law has been established. Such unlawful activity has no necessary relationship to whether the governmental action is in the public interest. A mayor is guilty of accepting a bribe even if he would and should have taken, in the public interest, the same action for which the bribe was paid. (That is frequently the defense asserted to a criminal bribery charge–and though it is never valid in law, see, e. g., United States v. Jannotti, 673 F. 2d 578, 601 (CA3) (en banc), cert. denied, 457 U. S. 1106 (1982), it is often plausible in fact.) When, moreover, the regulatory body is not a single individual but a state legislature or city council, there is even less reason to believe that violation of the law (by bribing a minority of the decisionmakers) establishes that the regulation has no valid public purpose. Cf. Fletcher v. Peck, 6 Cranch 87, 130 (1810). To use unlawful political influence as the test of legality of state regulation undoubtedly vindicates (in a rather blunt way) principles of good government. But the statute we are construing is not directed to that end. Congress has passed other laws aimed at combating corruption in state and local governments. See, e. g., 18 U. S. C. § 1951 (Hobbs Act). “Insofar as [the Sherman Act] sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity.” Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 140 (1961).


For these reasons, we reaffirm our rejection of any interpretation of the Sherman Act that would allow plaintiffs to look behind the actions of state sovereigns to base their claims on “perceived conspiracies to restrain trade,” Hoover, 466 U. S., at 580. We reiterate that, with the possible market participant exception, any action that qualifies as state action is “ipso facto … exempt from the operation of the antitrust laws,” id., at 568. This does not mean, of course, that the States may exempt private action from the scope of the Sherman Act; we in no way qualify the well-established principle that “a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” Parker, 317 U. S., at 351 (citing Northern Securities Co. v. United States, 193 U. S. 197, 332, 344-347 (1904)). See also Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384 (1951).


 


III


 


While Parker recognized the States’ freedom to engage in anticompetitive regulation, it did not purport to immunize from antitrust liability the private parties who urge them to engage in anticompetitive regulation. However, it is obviously peculiar in a democracy, and perhaps in derogation of the constitutional right “to petition the Government for a redress of grievances,” U. S. Const., Amdt. 1, to establish a category of lawful state action that citizens are not permitted to urge. Thus, beginning with Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., supra, we have developed a corollary to Parker: The federal antitrust laws also do not regulate the conduct of private individuals in seeking anticompetitive action from the government. This doctrine, like Parker, rests ultimately upon a recognition that the antitrust laws, “tailored as they are for the business world, are not at all appropriate for application in the political arena.” Noerr, supra, at 141. That a private party’s political motives are selfish is irrelevant: “Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.” Mine Workers v. Pennington, 381 U. S. 657, 670 (1965).


Noerr recognized, however, what has come to be known as the “sham” exception to its rule: “There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” 365 U. S., at 144. The Court of Appeals concluded that the jury in this case could have found that COA’s activities on behalf of the restrictive billboard ordinances fell within this exception. In our view that was error.


The “sham” exception to Noerr encompasses situations in which persons use the governmental process–as opposed to the outcome of that process–as an anticompetitive weapon. A classic example is the filing of frivolous objections to the license application of a competitor, with no expectation of achieving denial of the license but simply in order to impose expense and delay. See California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972). A “sham” situation involves a defendant whose activities are “not genuinely aimed at procuring favorable government action” at all, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U. S. 496, 500, n. 4 (1988), not one “who ‘genuinely seeks to achieve his governmental result, but does so through improper means,’” id., at 508, n. 10 (quoting Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 827 F. 2d 458, 465, n. 5 (CA9 1987)).


Neither of the Court of Appeals’ theories for application of the “sham” exception to the facts of the present case is sound. The court reasoned, first, that the jury could have concluded that COA’s interaction with city officials “‘was actually nothing more than an attempt to interfere directly with the business relations [sic] of a competitor.’” 891 F. 2d, at 1139 (quoting Noerr, supra, at 144). This analysis relies upon language from Noerr, but ignores the import of the critical word “directly.” Although COA indisputably set out to disrupt Omni’s business relationships, it sought to do so not through the very process of lobbying, or of causing the city council to consider zoning measures, but rather through the ultimate product of that lobbying and consideration, viz., the zoning ordinances. The Court of Appeals’ second theory was that the jury could have found “that COA’s purposes were to delay Omni’s entry into the market and even to deny it a meaningful access to the appropriate city administrative and legislative fora.” 891 F. 2d, at 1139. But the purpose of delaying a competitor’s entry into the market does not render lobbying activity a “sham,” unless (as no evidence suggested was true here) the delay is sought to be achieved only by the lobbying process itself, and not by the governmental action that the lobbying seeks. “If Noerr teaches anything it is that an intent to restrain trade as a result of the government action sought … does not foreclose protection.” Sullivan, Developments in the Noerr Doctrine, 56 Antitrust L. J. 361, 362 (1987). As for “deny[ing] … meaningful access to the appropriate city administrative and legislative fora,” that may render the manner of lobbying improper or even unlawful, but does not necessarily render it a “sham.” We did hold in California Motor Transport, supra, that a conspiracy among private parties to monopolize trade by excluding a competitor from participation in the regulatory process did not enjoy Noerr protection. But California Motor Transport involved a context in which the conspirators’ participation in the governmental process was itself claimed to be a “sham,” employed as a means of imposing cost and delay. (“It is alleged that petitioners ‘instituted the proceedings and actions … with or without probable cause, and regardless of the merits of the cases.’” 404 U. S., at 512.) The holding of the case is limited to that situation. To extend it to a context in which the regulatory process is being invoked genuinely, and not in a “sham” fashion, would produce precisely that conversion of antitrust law into regulation of the political process that we have sought to avoid. Any lobbyist or applicant, in addition to getting himself heard, seeks by procedural and other means to get his opponent ignored. Policing the legitimate boundaries of such defensive strategies, when they are conducted in the context of a genuine attempt to influence governmental action, is not the role of the Sherman Act. In the present case, of course, any denial to Omni of “meaningful access to the appropriate city administrative and legislative fora” was achieved by COA in the course of an attempt to influence governmental action that, far from being a “sham,” was if anything more in earnest than it should have been. If the denial was wrongful there may be other remedies, but as for the Sherman Act, the Noerr exemption applies.


Omni urges that if, as we have concluded, the “sham” exception is inapplicable, we should use this case to recognize another exception to Noerr immunity–a “conspiracy” exception, which would apply when government officials conspire with a private party to employ government action as a means of stifling competition. We have left open the possibility of such an exception, see, e. g., Allied Tube, supra, at 502, n. 7, as have a number of Courts of Appeals. See, e. g., Oberndorf v. Denver, 900 F. 2d 1434, 1440 (CA10 1990); First American Title Co. of South Dakota v. South Dakota Land Title Assn., 714 F. 2d 1439, 1446, n. 6 (CA8 1983), cert. denied, 464 U. S. 1042 (1984). At least one Court of Appeals has affirmed the existence of such an exception in dicta, see Duke & Co. v. Foerster, 521 F. 2d 1277, 1282 (CA3 1975), and the Fifth Circuit has adopted it as holding, see Affiliated Capital Corp. v. Houston, 735 F. 2d 1555, 1566-1568 (1984) (en banc).


Giving full consideration to this matter for the first time, we conclude that a “conspiracy” exception to Noerr must be rejected. We need not describe our reasons at length, since they are largely the same as those set forth in Part II above for rejecting a “conspiracy” exception to Parker. As we have described, Parker and Noerr are complementary expressions of the principle that the antitrust laws regulate business, not politics; the former decision protects the States’ acts of governing, and the latter the citizens’ participation in government. Insofar as the identification of an immunity-destroying “conspiracy” is concerned, Parker and Noerr generally present two faces of the same coin. The Noerr-invalidating conspiracy alleged here is just the Parker-invalidating conspiracy viewed from the standpoint of the private-sector participants rather than the governmental participants. The same factors which, as we have described above, make it impracticable or beyond the purpose of the antitrust laws to identify and invalidate lawmaking that has been infected by selfishly motivated agreement with private interests likewise make it impracticable or beyond that scope to identify and invalidate lobbying that has produced selfishly motivated agreement with public officials. “It would be unlikely that any effort to influence legislative action could succeed unless one or more members of the legislative body became … ‘co-conspirators’” in some sense with the private party urging such action, Metro Cable Co. v. CATV of Rockford, Inc., 516 F. 2d 220, 230 (CA7 1975). And if the invalidating “conspiracy” is limited to one that involves some element of unlawfulness (beyond mere anticompetitive motivation), the invalidation would have nothing to do with the policies of the antitrust laws. In Noerr itself, where the private party “deliberately deceived the public and public officials” in its successful lobbying campaign, we said that “deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned.” 365 U. S., at 145.


 


IV


 


Under Parker and Noerr, therefore, both the city and COA are entitled to immunity from the federal antitrust laws for their activities relating to enactment of the ordinances. This determination does not entirely resolve the dispute before us, since other activities are at issue in the case with respect to COA. Omni asserts that COA engaged in private anticompetitive actions such as trade libel, the setting of artificially low rates, and inducement to breach of contract. Thus, although the jury’s general verdict against COA cannot be permitted to stand (since it was based on instructions that erroneously permitted liability for seeking the ordinances, see Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U. S. 19, 29-30 (1962)), if the evidence was sufficient to sustain a verdict on the basis of these other actions alone, and if this theory of liability has been properly preserved, Omni would be entitled to a new trial.


There also remains to be considered the effect of our judgment upon Omni’s claim against COA under the South Carolina Unfair Trade Practices Act. The District Court granted judgment notwithstanding the verdict on this claim as well as the Sherman Act claims; the Court of Appeals reversed on the ground that “a finding of conspiracy to restrain competition is tantamount to a finding” that the South Carolina law had been violated, 891 F. 2d, at 1143. Given our reversal of the “conspiracy” holding, that reasoning is no longer applicable.


We leave these remaining questions for determination by the Court of Appeals on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.


It is so ordered.


 


Justice Stevens, with whom Justice White and Justice Marshall join, dissenting.


 


Section 1 of the Sherman Act provides in part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U. S. C. § 1 (emphasis added). Although we have previously recognized that a completely literal interpretation of the word “every” cannot have been intended by Congress,8 the Court today carries this recognition to an extreme by deciding that agreements between municipalities, or their officials, and private parties to use the zoning power to confer exclusive privileges in a particular line of commerce are beyond the reach of § 1. History, tradition, and the facts of this case all demonstrate that the Court’s attempt to create a “better” and less inclusive Sherman Act, cf. West Virginia University Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991), is ill advised.


 


I


 


As a preface to a consideration of the “state action” and so-called “Noerr-Pennington” exemptions to the Sherman Act, it is appropriate to remind the Court that one of the classic common-law examples of a prohibited contract in restraint of trade involved an agreement between a public official and a private party. The public official–the Queen of England– had granted one of her subjects a monopoly in the making, importation, and sale of playing cards in order to generate revenues for the crown. A competitor challenged the grant in The Case of Monopolies, 11 Co. Rep. 84, 77 Eng. Rep. 1260 (Q. B. 1602), and prevailed. Chief Justice Popham explained on behalf of the bench:


“The Queen was … deceived in her grant; for the Queen… intended it to be for the weal public, and it will be employed for the private gain of the patentee, and for the prejudice of the weal public; moreover the Queen meant that the abuse should be taken away, which shall never be by this patent, but potius the abuse will be increased for the private benefit of the patentee, and therefore … this grant is void jure Regio.” Id., at 87a; 77 Eng. Rep., at 1264.


In the case before us today, respondent alleges that the city of Columbia, S. C., has entered into a comparable agreement to give the private petitioner a monopoly in the sale of billboard advertising. After a 3-week trial, a jury composed of citizens of the vicinage found that, despite the city fathers’ denials, there was indeed such an agreement, presumably motivated in part by past favors in the form of political advertising, in part by friendship, and in part by the expectation of a beneficial future relationship–and in any case, not exclusively by a concern for the general public interest.9 Today the Court acknowledges the anticompetitive consequences of this and similar agreements but decides that they should be exempted from the coverage of the Sherman Act because it fears that enunciating a rule that allows the motivations of public officials to be probed may mean that innocent municipal officials may be harassed with baseless charges. The holding evidences an unfortunate lack of confidence in our judicial system and will foster the evils the Sherman Act was designed to eradicate.


 


II


 


There is a distinction between economic regulation, on the one hand, and regulation designed to protect the public health, safety, and environment. In antitrust parlance a “regulated industry” is one in which decisions about prices and output are made not by individual firms, but rather by a public body or a collective process subject to governmental approval. Economic regulation of the motor carrier and airline industries was imposed by the Federal Government in the 1930’s; the “deregulation” of those industries did not eliminate all the other types of regulation that continue to protect our safety and environmental concerns.


The antitrust laws reflect a basic national policy favoring free markets over regulated markets.10 In essence, the Sherman Act prohibits private unsupervised regulation of the prices and output of goods in the marketplace. That prohibition is inapplicable to specific industries which Congress has exempted from the antitrust laws and subjected to regulatory supervision over price and output decisions. Moreover, the so-called “state-action” exemption from the Sherman Act reflects the Court’s understanding that Congress did not intend the statute to pre-empt a State’s economic regulation of commerce within its own borders.


The contours of the state-action exemption are relatively well defined in our cases. Ever since our decision in Olsen v. Smith, 195 U. S. 332 (1904), which upheld a Texas statute fixing the rates charged by pilots operating in the Port of Galveston, it has been clear that a State’s decision to displace competition with economic regulation is not prohibited by the Sherman Act. Parker v. Brown, 317 U. S. 341 (1943), the case most frequently identified with the state-action exemption, involved a decision by California to substitute sales quotas and price control–the purest form of economic regulation–for competition in the market for California raisins.


In Olsen, the State itself had made the relevant pricing decision. In Parker, the regulation of the marketing of California’s 1940 crop of raisins was administered by state officials. Thus, when a state agency, or the State itself, engages in economic regulation, the Sherman Act is inapplicable. Hoover v. Ronwin, 466 U. S. 558, 568-569 (1984); Bates v. State Bar of Arizona, 433 U. S. 350, 360 (1977).


Underlying the Court’s recognition of this state-action exemption has been respect for the fundamental principle of federalism. As we stated in Parker, 317 U. S., at 351: “In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.”


However, this Court recognized long ago that the deference due States within our federal system does not extend fully to conduct undertaken by municipalities. Rather, all sovereign authority “within the geographical limits of the United States” resides with “the Government of the United States, or [with] the States of the Union. There exist within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these.” United States v. Kagama, 118 U. S. 375, 379 (1886).


Unlike States, municipalities do not constitute bedrocks within our system of federalism. And also unlike States, municipalities are more apt to promote their narrow parochial interests “without regard to extraterritorial impact and regional efficiency.” Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 404 (1978); see also The Federalist No. 10 (J. Madison) (describing the greater tendency of smaller societies to promote oppressive and narrow interests above the common good). “If municipalities were free to make economic choices counseled solely by their own parochial interests and without regard to their anticompetitive effects, a serious chink in the armor of antitrust protection would be introduced at odds with the comprehensive national policy Congress established.” Lafayette v. Louisiana Power & Light Co., 435 U. S., at 408. Indeed, “[i]n light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation’s economic goals reflected in the antitrust laws, … we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach.” Id., at 412-413.11


Nevertheless, insofar as municipalities may serve to implement state policies, we have held that economic regulation administered by a municipality may also be exempt from Sherman Act coverage if it is enacted pursuant to a clearly articulated and affirmatively expressed state directive “to replace competition with regulation.” Hoover, 466 U. S., at 569. However, the mere fact that a municipality acts within its delegated authority is not sufficient to exclude its anticompetitive behavior from the reach of the Sherman Act.


“Acceptance of such a proposition–that the general grant of power to enact ordinances necessarily implies state authorization to enact specific anticompetitive ordinances– would wholly eviscerate the concepts of ‘clear articulation and affirmative expression’ that our precedents require.” Community Communications Co. v. Boulder, 455 U. S. 40, 56 (1982).


Accordingly, we have held that the critical decision to substitute economic regulation for competition is one that must be made by the State. That decision must be articulated with sufficient clarity to identify the industry in which the State intends that economic regulation shall replace competition. The terse statement of the reason why the municipality’s actions in Hallie v. Eau Claire, 471 U. S. 34 (1985), was exempt from the Sherman Act illustrates the point: “They were taken pursuant to a clearly articulated state policy to replace competition in the provision of sewage services with regulation.” Id., at 47.12


 


III


 


Today the Court adopts a significant enlargement of the state-action exemption. The South Carolina statutes that confer zoning authority on municipalities in the State do not articulate any state policy to displace competition with economic regulation in any line of commerce or in any specific industry. As the Court notes, the state statutes were expressly adopted to promote the “‘health, safety, morals or the general welfare of the community,’” see ante, at 370, n. 3. Like Colorado’s grant of “home rule” powers to the city of Boulder, they are simply neutral on the question whether the municipality should displace competition with economic regulation in any industry. There is not even an arguable basis for concluding that the State authorized the city of Columbia to enter into exclusive agreements with any person, or to use the zoning power to protect favored citizens from competition.13 Nevertheless, under the guise of acting pursuant to a state legislative grant to regulate health, safety, and welfare, the city of Columbia in this case enacted an ordinance that amounted to economic regulation of the billboard market; as the Court recognizes, the ordinance “obviously benefited COA, which already had its billboards in place … [and] severely hindered Omni’s ability to compete.” Ante, at 368.


Concededly, it is often difficult to differentiate economic regulation from municipal regulation of health, safety, and welfare. “Social and safety regulation have economic impacts, and economic regulation has social and safety effects.” D. Hjelmfelt, Antitrust and Regulated Industries 3 (1985). It is nevertheless important to determine when purported general welfare regulation in fact constitutes economic regulation by its purpose and effect of displacing competition. “An example of economic regulation which is disguised by another stated purpose is the limitation of advertising by lawyers for the stated purpose of protecting the public from incompetent lawyers. Also, economic regulation posing as safety regulation is often encountered in the health care industry.” Id., at 3-4.


In this case, the jury found that the city’s ordinance–ostensibly one promoting health, safety, and welfare–was in fact enacted pursuant to an agreement between city officials and a private party to restrict competition. In my opinion such a finding necessarily leads to the conclusion that the city’s ordinance was fundamentally a form of economic regulation of the billboard market rather than a general welfare regulation having incidental anticompetitive effects. Because I believe our cases have wisely held that the decision to embark upon economic regulation is a nondelegable one that must expressly be made by the State in the context of a specific industry in order to qualify for state-action immunity, see, e. g., Olsen v. Smith, 195 U. S. 332 (1904) (Texas pilotage statutes expressly regulated both entry and rates in the Port of Galveston); Parker v. Brown, 317 U. S. 341 (1943) (California statute expressly authorized the raisin market regulatory program), I would hold that the city of Columbia’s economic regulation of the billboard market pursuant to a general state grant of zoning power is not exempt from antitrust scrutiny.14


Underlying the Court’s reluctance to find the city of Columbia’s enactment of the billboard ordinance pursuant to a private agreement to constitute unauthorized economic regulation is the Court’s fear that subjecting the motivations and effects of municipal action to antitrust scrutiny will result in public decisions being “made subject to ex post facto judicial assessment of ‘the public interest.’” Ante, at 377. That fear, in turn, rests on the assumption that “it is both inevitable and desirable that public officials often agree to do what one or another group of private citizens urges upon them.” Ante, at 375.


The Court’s assumption that an agreement between private parties and public officials is an “inevitable” precondition for official action, however, is simply wrong.15 Indeed, I am persuaded that such agreements are the exception rather than the rule, and that they are, and should be, disfavored. The mere fact that an official body adopts a position that is advocated by a private lobbyist is plainly not sufficient to establish an agreement to do so. See Fisher v. Berkeley, 475 U. S. 260, 266-267 (1986); cf. Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537, 541 (1954). Nevertheless, in many circumstances, it would seem reasonable to infer–as the jury did in this case–that the official action is the product of an agreement intended to elevate particular private interests over the general good.


In this case, the city took two separate actions that protected the local monopolist from threatened competition. It first declared a moratorium on any new billboard construction, despite the city attorney’s advice that the city had no power to do so. When the moratorium was invalidated in state-court litigation, it was replaced with an apparently valid ordinance that clearly had the effect of creating formidable barriers to entry in the billboard market. Throughout the city’s decisionmaking process in enacting the various ordinances, undisputed evidence demonstrated that Columbia Outdoor Advertising, Inc., had met with city officials privately as well as publicly. As the Court of Appeals noted: “Implicit in the jury verdict was a finding that the city was not acting pursuant to the direction or purposes of the South Carolina statutes but conspired solely to further COA’s commercial purposes to the detriment of competition in the billboard industry.” 891 F. 2d 1127, 1133 (CA4 1989).


Judges who are closer to the trial process than we are do not share the Court’s fear that juries are not capable of recognizing the difference between independent municipal action and action taken for the sole purpose of carrying out an anticompetitive agreement for the private party.16 See, e. g., In re Japanese Electronic Products Antitrust Litigation, 631 F. 2d 1069, 1079 (CA3 1980) (“The law presumes that a jury will find facts and reach a verdict by rational means. It does not contemplate scientific precision but does contemplate a resolution of each issue on the basis of a fair and reasonable assessment of the evidence and a fair and reasonable application of the relevant legal rules”). Indeed, the problems inherent in determining whether the actions of municipal officials are the product of an illegal agreement are substantially the same as those arising in cases in which the actions of business executives are subjected to antitrust scrutiny.17


The difficulty of proving whether an agreement motivated a course of conduct should not in itself intimidate this Court into exempting those illegal agreements that are proved by convincing evidence. Rather, the Court should, if it must, attempt to deal with these problems of proof as it has in the past–through heightened evidentiary standards rather than through judicial expansion of exemptions from the Sherman Act. See, e. g., Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986) (allowing summary judgment where a predatory pricing conspiracy in violation of the Sherman Act was founded largely upon circumstantial evidence); Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 768 (1984) (holding that a plaintiff in a vertical price-fixing case must produce evidence which “tends to exclude the possibility of independent action”).


Unfortunately, the Court’s decision today converts what should be nothing more than an anticompetitive agreement undertaken by a municipality that enjoys no special status in our federalist system into a lawful exercise of public decision-making. Although the Court correctly applies principles of federalism in refusing to find a “conspiracy exception” to the Parker state-action doctrine when a State acts in a nonproprietary capacity, it errs in extending the state-action exemption to municipalities that enter into private anticompetitive agreements under the guise of acting pursuant to a general state grant of authority to regulate health, safety, and welfare. Unlike the previous limitations this Court has imposed on Congress’ sweeping mandate in § 1, which found support in our common-law traditions or our system of federalism, see n. 1, supra, the Court’s wholesale exemption of municipal action from antitrust scrutiny amounts to little more than a bold and disturbing act of judicial legislation which dramatically curtails the statutory prohibition against “every” contract in restraint of trade.18


 


IV


 


Just as I am convinced that municipal “lawmaking that has been infected by selfishly motivated agreement with private interests,” ante, at 383, is not authorized by a grant of zoning authority, and therefore not within the state-action exemption, so am I persuaded that a private party’s agreement with selfishly motivated public officials is sufficient to remove the antitrust immunity that protects private lobbying under Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), and Mine Workers v. Pennington, 381 U. S. 657 (1965). Although I agree that the “sham” exception to the Noerr-Pennington rule exempting lobbying activities from the antitrust laws does not apply to the private petitioner’s conduct in this case for the reasons stated by the Court in Part III of its opinion, I am satisfied that the evidence in the record is sufficient to support the jury’s finding that a conspiracy existed between the private party and the municipal officials in this case so as to remove the private petitioner’s conduct from the scope of Noerr-Pennington antitrust immunity. Accordingly, I would affirm the judgment of the Court of Appeals as to both the city of Columbia and Columbia Outdoor Advertising, Inc.


I respectfully dissent.




FOOTNOTES

  1. Charles Rothfeld, Benna Ruth Solomon, and Peter J. Kalis filed a brief for the National League of Cities et al. as amici curiae urging reversal.


    Steven C. McCracken, Maurice Baskin, and John R. Crews filed a brief for Associated Builders and Contractors, Inc., as amicus curiae urging affirmance.


    Eric M. Rubin and Walter E. Diercks filed a brief for the Outdoor Advertising Association of America, Inc., as amicus curiae.


  2. Section 1 provides in pertinent part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U. S. C. § 1.


    Section 2 provides in pertinent part: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.” 15 U. S. C. § 2.


  3. The monetary damages in this case were assessed entirely against COA, the District Court having ruled that the city was immunized by the Local Government Antitrust Act of 1984, 98 Stat. 2750, as amended, 15 U. S. C. §§ 34-36, which exempts local governments from paying damages for violations of the federal antitrust laws. Although enacted in 1984, after the events at issue in this case, the Act specifically provides that it may be applied retroactively if “the defendant establishes and the court determines, in light of all the circumstances … that it would be inequitable not to apply this subsection to a pending case.” 15 U. S. C. § 35(b). The District Court determined that it would be, and the Court of Appeals refused to disturb that judgment. Respondent has not challenged that determination in this Court, and we express no view on the matter.


  4. S. C. Code Ann. § 5-23-10 (1976) (“Building and zoning regulations authorized”) provides that “[f]or the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities and incorporated towns may by ordinance regulate and restrict the height, number of stories and size of buildings and other structures.”


    Section 5-23-20 (“Division of municipality into districts”) provides that “[f]or any or all of such purposes the local legislative body may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this article. Within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land.”


    Section 6-7-710 (“Grant of power for zoning”) provides that “[f]or the purposes of guiding development in accordance with existing and future needs and in order to protect, promote and improve the public health, safety, morals, convenience, order, appearance, prosperity, and general welfare, the governing authorities of municipalities and counties may, in accordance with the conditions and procedures specified in this chapter, regulate the location, height, bulk, number of stories and size of buildings and other structures… . The regulations shall … be designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers, to promote the public health and the general welfare, to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to protect scenic areas; to facilitate the adequate provision of transportation, water, sewage, schools, parks, and other public requirements.”


  5. The dissent contends that, in order successfully to delegate its Parker immunity to a municipality, a State must expressly authorize the municipality to engage (1) in specifically “economic regulation,” post, at 388, (2) of a specific industry, post, at 391. These dual specificities are without support in our precedents, for the good reason that they defy rational implementation.


    If, by authority to engage in specifically “economic” regulation, the dissent means authority specifically to regulate competition, we squarely rejected that in Hallie v. Eau Claire, 471 U. S. 34 (1985), as discussed in text. Seemingly, however, the dissent means only that the state authorization must specify that sort of regulation whereunder “decisions about prices and output are made not by individual firms, but rather by a public body.” Post, at 387. But why is not the restriction of billboards in a city a restriction on the “output” of the local billboard industry? It assuredly is–and that is indeed the very gravamen of Omni’s complaint. It seems to us that the dissent’s concession that “it is often difficult to differentiate economic regulation from municipal regulation of health, safety, and welfare,” post, at 393, is a gross understatement. Loose talk about a “regulated industry” may suffice for what the dissent calls “antitrust parlance,” post, at 387, but it is not a definition upon which the criminal liability of public officials ought to depend.


    Under the dissent’s second requirement for a valid delegation of Parker immunity–that the authorization to regulate pertain to a specific industry–the problem with the South Carolina statute is that it used the generic term “structures,” instead of conferring its regulatory authority industry-by-industry (presumably “billboards,” “movie houses,” “mobile homes,” “TV antennas,” and every other conceivable object of zoning regulation that can be the subject of a relevant “market” for purposes of antitrust analysis). To describe this is to refute it. Our precedents not only fail to suggest, but positively reject, such an approach. “[T]he municipality need not ‘be able to point to a specific, detailed legislative authorization’ in order to assert a successful Parker defense to an antitrust suit.” Hallie, supra, at 39 (quoting Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 415 (1978)).


  6. The dissent is confident that a jury composed of citizens of the vicinage will be able to tell the difference between “independent municipal action and action taken for the sole purpose of carrying out an anticompetitive agreement for the private party.” Post, at 395-396. No doubt. But those are merely the polar extremes, which like the geographic poles will rarely be seen by jurors of the vicinage. Ordinarily the allegation will merely be (and the dissent says this is enough) that the municipal action was not prompted “exclusively by a concern for the general public interest,” post, at 387 (emphasis added). Thus, the real question is whether a jury can tell the difference–whether Solomon can tell the difference–between municipal-action-not-entirely-independent-because-based-partly-on-agreement-with-private-parties that is lawful and municipal-action-not-entirely-independent-because-based-partly-on-agreement-with-private-parties that is unlawful. The dissent does not tell us how to put this question coherently, much less how to answer it intelligently. “Independent municipal action” is unobjectionable, “action taken for the sole purpose of carrying out an anticompetitive agreement for the private party” is unlawful, and everything else (that is, the known world between the two poles) is unaddressed.


    The dissent contends, moreover, that “[t]he instructions in this case, fairly read, told the jury that the plaintiff should not prevail unless the ordinance was enacted for the sole purpose of interfering with access to the market.” Post, at 396, n. 9 (emphasis added). That is not so. The sum and substance of the jury’s instructions here were that anticompetitive municipal action is not lawful when taken as part of a conspiracy, and that a conspiracy is “an agreement between two or more persons to violate the law, or to accomplish an otherwise lawful result in an unlawful manner.” App. 79. Although the District Court explained that “[i]t is perfectly lawful for any and all persons to petition their government,” the court immediately added, “but they may not do so as a part or as the object of a conspiracy.” Ibid. These instructions, then, are entirely circular: An anticompetitive agreement becomes unlawful if it is part of a conspiracy, and a conspiracy is an agreement to do something unlawful. The District Court’s observation, upon which the dissent places so much weight, that “if by the evidence you find that [COA] procured and brought about the passage of ordinances solely for the purpose of hindering, delaying or otherwise interfering with the access of [Omni] to the marketing area involved in this case … and thereby conspired, then, of course, their conduct would not be excused under the antitrust laws,” id., at 81, see post, at 387, n. 2, is in no way tantamount to an instruction that this was the only theory upon which the jury could find an immunity-destroying “conspiracy.”


  7. We have proceeded otherwise only in the “very limited and well-defined class of cases where the very nature of the constitutional question requires [this] inquiry.” United States v. O’Brien, 391 U. S. 367, 383, n. 30 (1968) (bill of attainder). See also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 268, n. 18 (1977) (race-based motivation).


  8. Construing the statute in the light of the common law concerning contracts in restraint of trade, we have concluded that only unreasonable restraints are prohibited.


    “One problem presented by the language of § 1 of the Sherman Act is that it cannot mean what it says. The statute says that ‘every’ contract that restrains trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract; read literally, § 1 would outlaw the entire body of private contract law. Yet it is that body of law that establishes the enforceability of commercial agreements and enables competitive markets–indeed, a competitive economy– to function effectively.


    “Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition. The Rule of Reason, with its origins in common-law precedents long antedating the Sherman Act, has served that purpose … . [The Rule of Reason] focuses directly on the challenged restraint’s impact on competitive conditions.” National Society of Professional Engineers v. United States, 435 U. S. 679, 687-688 (1978) (footnotes omitted).


    We have also confined the Sherman Act’s mandate by holding that the independent actions of the sovereign States and their officials are not covered by the language of the Act. Parker v. Brown, 317 U. S. 341 (1943).


  9. The jury returned its verdict pursuant to the following instructions given by the District Court:


    “So if by the evidence you find that that person involved in this case procured and brought about the passage of ordinances solely for the purpose of hindering, delaying or otherwise interfering with the access of the Plaintiff to the marketing area involved in this case … and thereby conspired, then, of course, their conduct would not be excused under the antitrust laws.


    “So once again an entity may engage in … legitimate lobbying … to procure legislati[on] even if the motive behind the lobbying is anticompetitive.


    “If you find Defendants conspired together with the intent to foreclose the Plaintiff from meaningful access to a legitimate decision making process with regard to the ordinances in question, then your verdict would be for the Plaintiff on that issue.” App. 81.


  10. “The Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services. ‘The heart of our national economic policy long has been faith in the value of competition.’ Standard Oil Co. v. FTC, 340 U. S. 231, 248 [(1951)]. The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain–quality, service, safety, and durability–and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers. Even assuming occasional exceptions to the presumed consequences of competition, the statutory policy precludes inquiry into the question whether competition is good or bad.” National Society of Professional Engineers, 435 U. S., at 695.


  11. In Owen v. City of Independence, 445 U. S. 622 (1980), this Court recognized that “notwithstanding [42 U. S. C.] § 1983’s expansive language and the absence of any express incorporation of common-law immunities, we have, on several occasions, found that a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that ‘Congress would have specifically so provided had it wished to abolish the doctrine.’ Pierson v. Ray, 386 U. S. 547, 555 (1967).” Id., at 637. Nevertheless, the Court refused to find a firmly established immunity enjoyed by municipal corporations at common law for the torts of their agents. “Where the immunity claimed by the defendant was well established at common law at the time [42 U. S. C.] § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify” according them such immunity. Id., at 638. See also Will v. Michigan Dept. of State Police, 491 U. S. 58, 70 (1989) (“States are protected by the Eleventh Amendment while municipalities are not …”).


  12. Contrary to the Court’s reading of Hallie, our opinion in that case emphasized the industry-specific character of the Wisconsin legislation in explaining why the delegation satisfied the “clear articulation” requirement. At issue in Hallie was the town’s independent decision to refuse to provide sewage treatment services to nearby towns–a decision that had been expressly authorized by the Wisconsin legislation. 471 U. S., at 41. We wrote:


    “Applying the analysis of Lafayette v. Louisiana Power & Light Co., 435 U. S. 389 (1978), it is sufficient that the statutes authorized the City to provide sewage services and also to determine the areas to be served.” Id., at 42.


    “Nor do we agree with the Towns’ contention that the statutes at issue here are neutral on state policy. The Towns attempt to liken the Wisconsin statutes to the Home Rule Amendment involved in Boulder, arguing that the Wisconsin statutes are neutral because they leave the City free to pursue either anticompetitive conduct or free-market competition in the field of sewage services. The analogy to the Home Rule Amendment involved in Boulder is inapposite. That Amendment to the Colorado Constitution allocated only the most general authority to municipalities to govern local affairs. We held that it was neutral and did not satisfy the ‘clear articulation’ component of the state action test. The Amendment simply did not address the regulation of cable television. Under home rule the municipality was to be free to decide every aspect of policy relating to cable television, as well as policy relating to any other field of regulation of local concern. Here, in contrast, the State has specifically authorized Wisconsin cities to provide sewage services and has delegated to the cities the express authority to take action that foreseeably will result in anticompetitive effects. No reasonable argument can be made that these statutes are neutral in the same way that Colorado’s Home Rule Amendment was.” Id., at 43.


    We rejected the argument that the delegation was insufficient because it did not expressly mention the foreseeable anticompetitive consequences of the city of Eau Claire’s conduct, but we surely did not hold that the mere fact that incidental anticompetitive consequences are foreseeable is sufficient to immunize otherwise unauthorized restrictive agreements between cities and private parties.


  13. The authority to regulate the “‘location, height, bulk, number of stories and size of buildings and other structures,’” see ante, at 371, n. 3 (citation omitted), may of course have an indirect effect on the total output in the billboard industry, see ante, at 373-374, n. 4, as well as on a number of other industries, but the Court surely misreads our cases when it implies that a general grant of zoning power represents a clearly articulated decision to authorize municipalities to enter into agreements to displace competition in every industry that is affected by zoning regulation.


  14. A number of Courts of Appeals have held that a municipality which exercises its zoning power to further a private agreement to restrain trade is not entitled to state-action immunity. See, e. g., Westborough Mall, Inc. v. Cape Girardeau, 693 F. 2d 733, 746 (CA8 1982) (“Even if zoning in general can be characterized as ‘state action,’ … a conspiracy to thwart normal zoning procedures and to directly injure the plaintiffs by illegally depriving them of their property is not in furtherance of any clearly articulated state policy”); Whitworth v. Perkins, 559 F. 2d 378, 379 (CA5 1977) (“The mere presence of the zoning ordinance does not necessarily insulate the defendants from antitrust liability where, as here, the plaintiff asserts that the enactment of the ordinance was itself a part of the alleged conspiracy to restrain trade”).


  15. No such agreement was involved in Hallie v. Eau Claire, 471 U. S. 34 (1985). In that case the plaintiffs challenged independent action–the determination of the service area of the city’s sewage system–that had been expressly authorized by Wisconsin legislation. The absence of any such agreement provided the basis for our decision in Fisher v. Berkeley, 475 U. S. 260, 266-267 (1986) (“The distinction between unilateral and concerted action is critical here… . Thus, if the Berkeley Ordinance stabilizes rents without this element of concerted action, the program it establishes cannot run afoul of § 1”).


  16. The instructions in this case, fairly read, told the jury that the plaintiff should not prevail unless the ordinance was enacted for the sole purpose of interfering with access to the market. See n. 2, supra. Thus, this case is an example of one of the “polar extremes,” see ante, at 375, n. 5, that juries–as well as Solomon–can readily identify. The mixed motive cases that concern the Court should present no problem if juries are given instructions comparable to those given below. When the Court describes my position as assuming that municipal action that was not prompted “exclusively by a concern for the general public interest” is enough to create antitrust liability, ibid., it simply ignores the requirement that the plaintiff must prove that the municipal action is the product of an anticompetitive agreement with private parties. Contrary to our square holding in Fisher v. Berkeley, 475 U. S. 260 (1986), today the Court seems to assume that municipal action which is not entirely immune from antitrust scrutiny will automatically violate the antitrust laws.


  17. “There are many obstacles to discovering conspiracies, but the most frequent difficulties are three. First, price-fixers and similar miscreants seldom admit their conspiracy or agree in the open. Often, we can infer the agreement only from their behavior. Second, behavior can sometimes be coordinated without any communication or other observable and reprehensible behavior. Third, the causal connection between an observable, controllable act–such as a solicitation or meeting–and subsequent parallel action may be obscure.” 6 P. Areeda, Antitrust Law ¶ 1400, at 3-4 (1986). See also Turner, The Definition of Agreement under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655 (1962) (discussing difficulties of condemning parallel anticompetitive action absent explicit agreement among the parties).


  18. As the Court previously has noted:


    “In 1972, there were 62,437 different units of local government in this country. Of this number 23,885 were special districts which had a defined goal or goals for the provision of one or several services, while the remaining 38,552 represented the number of counties, municipalities, and townships, most of which have broad authority for general governance subject to limitations in one way or another imposed by the State. These units may, and do, participate in and affect the economic life of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender.” Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 407-408 (1978) (footnotes omitted).


3.6. Spot Zoning


Frank S. Griswold v. City of Homer,

925 P.2d 1015 (Alaska 1996)



Frank S. Griswold, Homer, pro se.


Gordon J. Tans, Perkins Coie, Anchorage, for Appellee.



Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.


 




Eastaugh, Justice.

 


 


I. INTRODUCTION


 


In 1992 the Homer City Council adopted Ordinance 92-18 amending Homer’s zoning and planning code to allow motor vehicle sales and services on thirteen lots in Homer’s Central Business District. Frank Griswold claims Ordinance 92-18 is invalid because it constitutes spot zoning. We affirm the superior court’s rejection of that claim. Griswold also claims the Ordinance is invalid because a council member with a personal interest improperly participated in its adoption. We hold that the council member should not have participated. We consequently remand so the superior court can determine whether that participation invalidates the Ordinance. Finally, we hold that Griswold is a public interest litigant who cannot be assessed the City’s attorney’s fees and court costs.


 


II. FACTS AND PROCEEDINGS


 


Alaska Statute 29.40.020 requires that each first class borough establish a planning commission which will prepare, submit, and implement a comprehensive plan.1 This plan must be adopted before the local government can adopt a zoning ordinance. AS 29.40.020.040. A borough assembly “[i]n accordance with a comprehensive plan adopted under AS 29.40.030 and in order to implement the plan … shall adopt or amend provisions governing the use and occupancy of land.” AS 29.40.040. That statute requires the borough to implement the comprehensive plan by adopting provisions governing land use, including zoning regulations. Id. A borough may delegate this responsibility and the planning power to a city within the borough, if the city consents. AS 29.40.010(b). The Kenai Peninsula Borough delegated to the City of Homer the zoning authority for areas within the City.


The City adopted a comprehensive land use plan in 1983 and revised it in 1989. The City Council enacted zoning ordinances to implement the plans. Motor vehicle sales and services were not a permissible use within the Central Business District (CBD). Several businesses provided automobile services in the CBD before the City adopted the zoning ordinances. Those businesses were “grandfathered” into the zoning district and allowed to continue to provide those services as nonconforming uses, so long as those uses did not extend beyond the original lot boundaries and the property owners did not discontinue their nonconforming uses for more than one year.


Guy Rosi Sr. owns a parcel (Lot 13) in the CBD.2 Rosi Sr. has continuously operated an automobile repair service on Lot 13. His repair business remains a valid nonconforming use in the CBD. Rosi Sr. also operated an automobile dealership on Lot 13 until sometime prior to 1990, but lost the right to continue that nonconforming use on that lot by discontinuing the vehicle sales business for more than one year.


Guy Rosi Jr. owns Lot 12, which is adjacent to his father’s lot. Lot 12 is also in the CBD; because it had never been used for automobile sales or services, these uses were not grandfathered for Lot 12.


In 1986 the City received complaints that Lot 12 was being used for vehicle sales in violation of the zoning ordinance. In May 1986 Rosi Jr. applied to the Homer Advisory Planning Commission for a conditional use permit for Lot 12. The commission denied the application. It found that public services and facilities were adequate to serve the proposed use. The commission also found that automobile sales were not consistent with the purpose of the CBD; were not in harmony with the Comprehensive Plan; would negatively impact neighborhood character; but might not negatively impact the value of adjoining property more than permitted uses.


Rosi Jr. then applied for a contract rezone under Homer City Code (HCC) 21.63.020(c). The City granted the application in 1986, rezoning Rosi Jr.’s lot to General Commercial 1(GC1) and restricting its use to vehicle sales. Griswold does not challenge the Lot 12 contract rezone in this litigation.


Rosi Sr.’s Lot 13 was not affected by the Lot 12 contract rezone. In September 1990 Rosi Sr. requested that the CBD be rezoned to allow vehicle sales and related services. In August 1991 Rosi Sr., stating that he had not received any response to his earlier request, asked that Lot 13 be rezoned to allow vehicle sales and related services. During this period, there were numerous zoning proposals and public hearings regarding automobile-related services in the CBD, but some people spoke in favor of rezoning the area.


In January 1992 a commission memorandum informed the City Manager that the commission had been wrestling with several possible amendments to the zoning code since 1990, and that “[c]entral to the issue is the Commission’s desire to rezone the Guy Rosi property to allow for vehicle sales.” The commission noted that a proposed ordinance would allow automobile-related services in the CBD only on Main Street from Pioneer Avenue to the Homer Bypass, excluding corner lots with frontage on Pioneer Avenue and the Homer Bypass Road. However, the commission staff recommended that the council pass an ordinance which would allow automobile-related services “everywhere in the Central Business District or nowhere.” The memo stated that the City Attorney felt the proposed ordinance would be difficult to enforce and defend.


In April the City Council adopted Ordinance 92-18, which amended HCC 21.48.020 by adding the following section:


hh. Automobile and vehicle repair, vehicle maintenance, public garage, and motor vehicle sales, showrooms and sales lots, but only on Main Street from Pioneer Avenue to the Homer Bypass Road, excluding corner lots with frontage on Pioneer Avenue or the Homer Bypass Road, be allowed as a permitted use.


The Ordinance passed five-to-zero. One council member was absent. Brian Sweiven was one of the council members voting for the amendment. He owned one of the thirteen lots on which automobile sales and services were to be allowed under Ordinance 92-18. Sweiven both lived on his lot and operated an appliance repair business there. In 1994, stating he had a potential conflict of interest, he refrained from voting on Ordinance 94-13, which would have repealed subsection (hh). A week later he reversed that position and voted not to repeal subsection (hh).


Frank Griswold, the plaintiff in this case, owns an automobile repair shop in the CBD. Its operation was grandfathered in under the zoning code. He also lives in the CBD. Griswold’s lot was not one of the thirteen lots directly affected by Ordinance 92-18. Griswold brought suit against the City, alleging under several theories that Ordinance 92-18 is an invalid exercise of the City’s zoning power and that Sweiven’s participation in the adoption of Ordinance 92-18 invalidates the Ordinance. Following a bench trial, the superior court found against Griswold on all issues. It later ordered him to pay a portion of the City’s court costs and attorney’s fees. Griswold appeals.


 


III. DISCUSSION


 


We have repeatedly held that it is the role of elected representatives rather than the courts to decide whether a particular statute or ordinance is a wise one.3Norene v. Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985); Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1299 (Alaska 1982). In Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974), we stated:


A court’s inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. The party claiming a denial of substantive due process has the burden of demonstrating that no rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification.


(Footnote omitted.) See also 6 Eugene McQuillan, Municipal Corporations § 20.05, at 12 (3d ed. 1988) (“The validity of an ordinance will be upheld where there is room for a difference of opinion ‘even though the correctness of the legislative judgment is doubtful.’“) (quoting Western Springs v. Bernhagen, 326 Ill. 100, 156 N.E. 753, 754 (1927)).


However, we will invalidate zoning decisions which are the result of prejudice, arbitrary decision-making, or improper motives. See South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168, 174 (Alaska 1993) (“In reviewing zoning decisions, courts generally try to guard against prejudice, arbitrary decision-making, and improper motives.”) (citing 3 Edward H. Ziegler Jr., Rathkoph’s The Law of Zoning and Planning § 41.06, at 41-29, § 41.14(3)(b), at 41-93 (1992)). Similarly, a legislative body’s zoning decision violates substantive due process if it has no reasonable relationship to a legitimate government purpose. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452. Moreover, another court has noted, “The dividing line between … mere difference in opinion and what is arbitrary is the line between zoning based on objective factual evidence and zoning without a rational basis.” Smith v. County of Washington, 241 Or. 380, 406 P.2d 545, 548 (1965) (citations omitted).4 In this case, Griswold argues that the City’s Ordinance does not have a legitimate basis but rather is arbitrary spot zoning.5


We have not previously had the opportunity to consider whether a municipality’s planning and zoning enactment is invalid because it constitutes “spot zoning.” The City states that “this is not a case of ‘spot zoning’ at all” because the area in question remains zoned CBD. However, treatise discussions of spot zoning appear to make no distinction between cases where a zoning district has been reclassified and those where a new use without district reclassification is at issue. See, e.g., 1 Robert M. Anderson American Law of Zoning 3d § 5.12, at 358 (1986) (“The common [spot zoning] situation is one in which an amendment is initiated at the request of an owner or owners who seek to establish a use prohibited by the existing regulations.”). See also, Ballenger v. Door County, 131 Wis.2d 422, 388 N.W.2d 624, 627 (App. 1986) (applying spot zoning analysis in a case where the zoning district remained the same but the permitted uses within the district were expanded); Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 (whether zoning decision violates substantive due process depends on whether it has a reasonable relationship to a legitimate public purpose).


 


A. Claim of Spot Zoning


 


The “classic” definition of spot zoning is “the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners….” Anderson, supra, § 5.12, at 359 (quoting Jones v. Zoning Bd. of Adjustment of Long Beach, 32 N.J. Super. 397, 108 A.2d 498 (1954)). Spot zoning “is the very antithesis of planned zoning.” Id.6 Courts have developed numerous variations of this definition. Id. These variations have but minor differences and describe any zoning amendment which “reclassifies a small parcel in a manner inconsistent with existing zoning patterns, for the benefit of the owner and to the detriment of the community, or without any substantial public purpose.” Anderson, supra, § 5.12, at 362. Professor Ziegler states:


Faced with an allegation of spot zoning, courts determine first whether the rezoning is compatible with the comprehensive plan or, where no plan exists, with surrounding uses. Courts then examine the degree of public benefit gained and the characteristics of land, including parcel size and other factors indicating that any reclassification should have embraced a larger area containing the subject parcel rather than that parcel alone. No one particular characteristic associated with spot zoning, except a failure to comply with at least the spirit of a comprehensive plan, is necessarily fatal to the amendment. Spot zoning analysis depends primarily on the facts and circumstances of the particular case. Therefore the criteria are flexible and provide guidelines for judicial balancing of interests.


3 Edward H. Ziegler Jr., Rathkoph’s The Law of Zoning and Planning § 28.01, at 28-3 (4th ed. 1995).


In accord with the guidance offered by Professor Ziegler, in determining whether Ordinance 92-18 constitutes spot zoning, we will consider (1) the consistency of the amendment with the comprehensive plan; (2) the benefits and detriments of the amendment to the owners, adjacent landowners, and community; and (3) the size of the area “rezoned.”


 


1. Consistency with the comprehensive plan


 


Just as an ordinance which complies with a comprehensive plan may still constitute an arbitrary exercise of a city’s zoning power, Watson v. Town Council of Bernalillo, 111 N.M. 374, 805 P.2d 641, 645 (App. 1991), nonconformance with a comprehensive plan does not necessarily render a zoning action illegal. Anderson, supra, § 5.06, at 339-40. However, consistency with a comprehensive plan is one indication that the zoning action in question has a rational basis and is not an arbitrary exercise of the City’s zoning power.


Homer’s comprehensive plan divides the city into several zoning areas. By its own terms, Homer’s comprehensive plan is not intended to set specific land use standards and boundaries; specific standards and boundaries are instead implemented through the City’s zoning ordinance. The plan states, “The City shall encourage a mix of business/commercial and public/governmental activities in areas zoned or planned as central business district.” The plan states that the CBD is “intended primarily for retail sales and services occurring within enclosed structures.” The plan’s objectives for the CBD are (1) to guide growth and development to provide a centrally located business and commercial area and focal point for the community; (2) to encourage infilling of the area already designated CBD before expanding the area; (3) to promote a safe, attractive, and easily accessible business and commercial core for pedestrian and vehicular visitors and residents; (4) to attract and accommodate a variety of uses to fill the business and commercial needs of downtown Homer; and (5) to tie into state and federal programs that beautify the business and commercial core.


Griswold does not dispute that the CBD is intended to allow commercial uses. He notes however, that although auto-related services are explicitly permitted in the General Commercial 1 District under HCC 21.49.020(d), the planning commission previously denied a conditional use permit for auto-related services on Main Street, specifically finding, inter alia, that automobile sales were not consistent with the purpose of the CBD and were not in harmony with the comprehensive plan. He also notes that the comprehensive plan provides that the CBD was meant primarily for retail sales and services occurring within enclosed structures. Further, the fact that the City began phasing out auto-related services in the CBD when it adopted the comprehensive plan, while simultaneously specifically permitting these services in the General Commercial I District, indicates to Griswold that auto-related sales and services were, at least at one time, considered incompatible with the CBD.


The superior court concluded that the Ordinance was consistent with the comprehensive plan. In so concluding, it considered the policy statement implementing the Ordinance, and found that the Ordinance “encourages private investment and infilling” and “enhances convenient access to other parts of the CBD which are designated for other uses.” It noted that Policy 4.1 provided: “The City shall research the nature of land uses and CBD land use needs and evaluate the need for subzones in the CBD.”


Griswold points to trial evidence that the expansion of auto-related services in the CBD does not further all the goals of the comprehensive plan, but he fails to demonstrate that the superior court’s finding — that the Ordinance is consistent with the plan — is clearly erroneous. Although the evidence presented by Griswold would permit a finding that the City Council had believed in 1986 that auto-related uses were incompatible with the CBD and the zoning ordinance as it then read, that evidence does not compel a finding that auto-related uses are in fact incompatible with the CBD or comprehensive plan, or that the City Council’s 1992 change of opinion is unsupportable and arbitrary.


The superior court did not clearly err in making the findings discussed above. The court permissibly relied on Policy 4.1, which anticipates the type of action at issue here. The comprehensive plan does not expressly prohibit automobile sales or service establishments in the CBD. As the City notes, motor vehicle sales are most appropriately classified as a business and commercial use, for which the CBD was intended under the plan. Homer’s city planner testified at trial that the Ordinance is in accordance with Homer’s comprehensive plan. We conclude that the superior court did not err in holding that Ordinance 92-18 is consistent with the City’s comprehensive plan.


 


2. Effect of small-parcel zoning on owner and community


 


Perhaps the most important factor in determining whether a small-parcel zoning amendment will be upheld is whether the amendment provides a benefit to the public, rather than primarily a benefit to a private owner. See Anderson, supra, §§ 5.13-5.14; Ziegler, supra, § 28.03, § 28.04, at 28-19 (calling an amendment intended only to benefit the owner of the rezoned tract the “classic case” of spot zoning). Courts generally do not assume that a zoning amendment is primarily for the benefit of a landowner merely because the amendment was adopted at the request of the landowner. Anderson, supra, § 5.13, at 368. If the owner’s benefit is merely incidental to the general community’s benefit, the amendment will be upheld. Ziegler, supra, § 28.04, at 28-19 to 28-20. The City argues that Ordinance 92-18 serves the interests of the general community rather than primarily the interests of the Rosis. We agree.


 


a. Benefits and detriments to the community


 


Griswold argues that there are many negative aspects of the City’s decision to allow auto-related uses in the CBD. Griswold presented evidence that the neighborhood character would be harmed by the zoning amendment. He presented evidence that a newspaper article quoted Planning Commissioner Cushing as saying that public opinion was overwhelmingly against allowing auto-related services in the CBD and that many Homer citizens expressed the opinion that their homes and businesses would be harmed by introducing auto-related services into the area. A real estate agent testified that property in the CBD has a higher value than property in the GC1 District.


Many jurisdictions, including this one, have held that interests such as the preservation of neighborhood character, traffic safety, and aesthetics are legitimate concerns. Barber v. Municipality of Anchorage, 776 P.2d 1035, 1037 (Alaska) (holding the government’s interest in aesthetics is substantial and should be accorded respect), cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267 (1989); Cadoux v. Planning and Zoning Comm’n of Weston, 162 Conn. 425, 294 A.2d 582, 584 (holding increased traffic a valid reason to deny application for rezone), cert. denied, 408 U.S. 924, 92 S.Ct. 2496, 33 L.Ed.2d 335 (1972). Contrary to the implication of the City’s argument,7 these are tangible harms. Moreover, the City itself appears to be concerned about the effects of auto-related services on property values and aesthetics, as evidenced by the council’s findings supporting its confinement of the zoning change to Main Street,8 and the commission’s earlier finding that use for automobile sales would negatively impact neighborhood character.


However, despite this negative aspect of Ordinance 92-18, it appears that the Ordinance will result in genuine benefits for the City of Homer. The City notes that before adopting Ordinance 92-18, for a year and a half it deliberated proposals which would allow auto-related uses in the CBD and delineated the many benefits which it believed the Ordinance will confer upon the community. These benefits include encouraging filling in vacant places in the CBD; increasing the tax base and employment in the CBD; increasing convenience and accessibility for local and regional customers for vehicle repairs or purchases; and promoting orderly growth and development in the CBD.9 Homer’s city planner testified that the Ordinance provides a convenience to the public and guides growth and development to a centrally located area, while restricting such uses to areas away from tourists or to areas for visitors and pedestrians.


The superior court stated that Ordinance 92-18 advances legitimate legislative goals articulated in HCC 21.28.020 including but not limited to regulating and limiting the density of populations; conserving and stabilizing the value of properties; providing adequate open spaces for light and air; preventing undue concentration of population; lessening congestion on streets and highways; and promoting health, safety and general welfare. The court found “as a matter of fact and law that Ordinance No. 92-18 bears a substantial relationship between legitimate legislative goals and the means chosen to achieve those goals.”


Griswold has demonstrated that there are some negative aspects of allowing auto-related uses in the CBD. Nonetheless, giving proper deference to the City Council as legislative policymaker and to the superior court as finder of fact, we cannot conclude that these detriments so outweigh the benefits of Ordinance 92-18 that we must hold the Ordinance was arbitrarily and capriciously adopted.


 


b. Benefit to the landowner


 


It appears that initially the City was primarily concerned with Rosi Sr.’s interests.10 Rosi Sr. initiated the inquiry into rezoning the CBD. Before the City amended the zoning code, the planning commission chair stated that “[c]entral to the issue is the Commission’s desire to rezone the Guy Rosi property to allow for vehicle sales.” In 1991 commissioners “voiced their dislike for spot zoning but felt it important to right a wrong [done to Mr. Rosi].” The City planning staff stated that “‘spot zoning’ is not good planning; however there are extenuating circumstances that support the proposed change in zone.” The commission supported these conclusions with the following findings of fact: (1) the property owner had owned and operated a business on the property since the early 1950’s; (2) public testimony and response to staff were positive; (3) the City Attorney’s response was positive; and (4) the business was an expensive business to establish and maintain. This desire to accommodate the needs of a businessman who had been in the community for decades is understandable. Nevertheless, small-parcel zoning designed merely to benefit one owner constitutes unwarranted discrimination and arbitrary decision-making, unless the ordinance amendment is designed to achieve the statutory objectives of the City’s own zoning scheme, even where the purpose of the change is to bring a nonconforming use into conformance or allow it to expand. See Speakman v. Mayor of N. Plainfield, 8 N.J. 250, 84 A.2d 715, 718-19 (1951). Otherwise, the City would be forced either to discriminate arbitrarily among landowners seeking relaxed restrictions or to abandon the concept of planned zoning altogether. Thus, if assisting Guy Rosi Sr. was the primary purpose of the Ordinance, we would invalidate it even if it was not the product of discriminatory animus.


However, it appears that the City Council was ultimately motivated to pass the Ordinance because of the community benefits the council perceived rather than because of the benefit the Ordinance would confer upon Rosi Sr. The Ordinance restricted auto-related uses to one street not because its real intent was to benefit Rosi Sr.’s property, but, as Homer’s city planner testified, because the City desired to minimize the negative impact of auto-related uses, especially the impact of such uses on more pedestrian and tourist-oriented areas such as Pioneer Avenue. See also supra note 7. Similarly, it appears that vacant lots located farther from Pioneer Avenue were excluded not because Rosi did not own these lots, but in an attempt to prevent urban sprawl by filling in vacant places in developed areas before expanding development. These reasons are legitimate, nondiscriminatory justifications for enacting the Ordinance.


 


3. Size of “rezoned” area


 


Ordinance 92-18 directly affects 7.29 acres.11 The size of the area reclassified has been called “more significant [than all other factors] in determining the presence of spot zoning.” Anderson, supra, § 5.15, at 378. The rationale for that statement is that “[i]t is inherently difficult to relate a reclassification of a single lot to the comprehensive plan; it is less troublesome to demonstrate that a change which affects a larger area is in accordance with a plan to control development for the benefit of all.” Id. at 379.


We believe that the relationship between the size of reclassification and a finding of spot zoning is properly seen as symptomatic rather than causal, and thus that the size of the area rezoned should not be considered more significant than other factors in determining whether spot zoning has occurred. A parcel cannot be too large per se to preclude a finding of spot zoning, nor can it be so small that it mandates a finding of spot zoning. Although Anderson notes that reclassifications of parcels under three acres are nearly always found invalid, while reclassifications of parcels over thirteen acres are nearly always found valid, id., as Ziegler notes, the relative size of the parcel is invariably considered by courts. Ziegler, supra, § 28.04, at 28-14. One court found spot zoning where the reclassified parcel was 635 acres in an affected area of 7,680 acres. Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489, 497 (1971).


Nor does the reclassification of more than one parcel negate the possibility of finding spot zoning. Ziegler, supra, § 28.04, at 28-15. In this case, there was some evidence that the reclassified area may have been expanded to avoid a charge of spot zoning. Other courts have invalidated zoning amendments after finding that a multiple-parcel reclassification was a subterfuge to obscure the actual purpose of special treatment for a particular landowner. Id. See Atherton v. Selectmen of Bourne, 337 Mass. 250, 149 N.E.2d 232, 235 (1958) (holding that the amendment is “no less ‘spot zoning’ by the inclusion of the additional six lots than it would be without them” where proponents of a zoning change apparently anticipated a charge of spot zoning and enlarged the area to include the three lots on either side of the lot in question).


Homer’s CBD is over 400 acres; the reclassified area is 7.29 acres. The CBD appears to contain approximately 500 lots; the reclassified area contains 13 lots. A comparison of the size of the area rezoned and the size of the entire CBD is not in itself sufficient to persuade us that the City’s decision was the product of prejudice, arbitrary decision-making, or improper motives. South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168, 174 (Alaska 1993).


Further, it is not necessarily appropriate to compare the area of the affected lots with that of the entire CBD. The comprehensive plan recognized the possibility of subzones. The City considered significant portions of the CBD to be inappropriate for automobile sales and services, particularly Pioneer Avenue and the Bypass. Subtracting those areas from the entire CBD, the reclassified area on Main Street is a relatively larger part of the remaining CBD.


Thus, having considered the relative size of the rezoned area in determining whether Ordinance 92-18 constituted spot zoning, we hold that the size of the area rezoned does not require a finding of spot zoning given other factors supporting a contrary conclusion. We conclude that the superior court did not err in finding that Ordinance 92-18 does not constitute spot zoning.


 


B. Claim of Conflict of Interest


 


Homer City Council member Brian Sweiven owned one of the thirteen lots in the reclassified area. He was one of nine owners directly affected by Ordinance 92-18. It appears that it was Sweiven who first recommended to the commission that the rezone apply only to Main Street. An article in the Homer News was titled “Sweiven proposes commercial zoning for downtown Homer.” The article refers to the idea of rezoning Main Street as “Sweiven’s proposal.” Griswold alleges that Sweiven had a disqualifying conflict of interest under Homer municipal law and that his participation in the adoption of Ordinance 92-18 therefore invalidates the Ordinance, even though Sweiven’s vote was not necessary for passage. The superior court found that Sweiven did not have a disqualifying conflict of interest and that even if he had, his participation in the deliberations and vote would not invalidate Ordinance 92-18.


[The court concluded there was a disqualifying conflict of interest under the ordinance but that whether the vote should be invalidated required analysis of facts not yet found.]


We therefore remand so that the superior court, applying the analysis discussed above, can determine whether Ordinance 92-18 must be invalidated.


 


C. Public Interest Litigant Status


 


The superior court found that Griswold was not a public interest litigant. That finding was clearly erroneous because Griswold met all four criteria of a public interest litigant in this case: (1) his lawsuit was designed to effectuate strong public policies; (2) if Griswold succeeded, numerous people would have benefited from the lawsuit; (3) only a private party could be expected to bring the action; and (4) Griswold lacked sufficient economic incentive to bring the lawsuit if it did not also involve issues of general importance… . .


 


IV. CONCLUSION


 


We hold that Ordinance 92-18 does not constitute spot zoning, and consequently AFFIRM that aspect of the judgment below. We hold, however, that council member Sweiven had a conflict of interest which should have disqualified him from participating in consideration of the Ordinance. We consequently REVERSE the court’s finding that there was no conflict of interest and REMAND so the superior court can determine whether the Ordinance must be invalidated. We also REVERSE that portion of the judgment imposing costs and fees on Griswold.


 


Rabinowitz, Justice, dissenting in part.


 


I believe it is of particular significance that Sweiven participated in the discussion of and voted for Ordinance 92-18.


… .


Rather than remand this issue, I would hold Ordinance 92-18 invalid because of council member Sweiven’s participation.12




FOOTNOTES

  1. AS 29.40.030 defines a comprehensive plan as follows:


    [A] compilation of policy statements, goals, standards, and maps for guiding the physical, social, and economic development, both private and public, of the first or second class borough, and may include, but is not limited to, the following:


    (1) statements of policies, goals, and standards;


    (2) a land use plan;


    (3) a community facilities plan;


    (4) a transportation plan; and


    (5) recommendations for implementation of the comprehensive plan.


  2. Although the Borough’s tax assessment records indicate that Guy Rosi Sr. owns only part of Lot 13, the parties and the trial court have referred to his parcel as “Lot 13.” We do the same.


  3. This appeal concerns the validity of an enactment of a legislative body, rather than a decision of a zoning board. See Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)(analyzing a Borough Assembly’s ordinance as a legislative enactment). We are here reviewing a superior court judgment rejecting claims that a municipal ordinance is invalid. We give independent consideration to the legal conclusions of the superior court. Beesley v. Van Doren, 873 P.2d 1280, 1281 (Alaska 1994). We will uphold the superior court’s findings of fact unless they are clearly erroneous. In re R.K., 851 P.2d 62, 66 (Alaska 1993).


  4. We have held that, although a planning commission is not required to make specific findings supporting its decisions, it must articulate reasons for its decisions sufficient to assist the parties preparing for review and to restrain agencies within the bounds of their jurisdiction. South Anchorage Concerned Coalition v. Coffey, 862 P.2d 168, 175 (Alaska 1993) (citing City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 875 (Alaska 1985); and Kenai Peninsula Borough v. Ryherd, 628 P.2d 557, 562 (Alaska 1981)).


  5. Griswold also argues that the Ordinance is invalid because it is inconsistent with the City’s zoning code and comprehensive plan. We consider this argument in conjunction with our discussion of spot zoning.


  6. The City argues that spot zoning should not be considered per se illegal, but merely descriptive. Thus, whether spot zoning is valid or invalid would depend upon the facts of each case. See Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579, 588 (1988); Save Our Rural Env’t v. Snohomish County, 99 Wash.2d 363, 662 P.2d 816 (1983); Tennison v. Shomette, 38 Md. App. 1, 379 A.2d 187 (1977). However, we will follow the vast majority of jurisdictions which hold that, while not all small-parcel zoning is illegal, spot zoning is per se illegal. See Chrismon, 370 S.E.2d at 588 (noting that majority of jurisdictions regard spot zoning as a legal term of art); 3 Edward H. Ziegler Jr., Rathkoph’s The Law of Zoning and Planning § 28.01 n. 2 (4th ed. 1995) (compiling cases holding same); Anderson, supra, § 5.12, at 359 n. 46 (same).


    Thus, spot zoning is simply the legal term of art for a zoning decision which affects a small parcel of land and which is found to be an arbitrary exercise of legislative power. Cf. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 (“[T]he constitutional guarantee of substantive due process assures only that a legislative body’s decision is not arbitrary but instead based upon some rational policy.”).


  7. The City argues that Griswold could not show any “concrete detriment” but instead “could only argue that car lots were not pleasant to look at, they didn’t alleviate traffic, and other similar arguments.”


  8. At trial the City’s planner testified that the Ordinance was restricted to Main Street to avoid certain negative impacts in more tourist-oriented areas. These negative impacts include traffic congestion, visual blight, detraction from the pleasing aesthetic nature of Pioneer Avenue, and conflict with the comprehensive plan’s goal of promoting sidewalks, pocket parks, and pedestrian amenities in the CBD.


  9. Not all of the goals articulated by the City can be considered legitimate per se. For example, any zoning change which eases restrictions on property use could be said to further the goal of “filling in vacant places.” Similarly, increasing the tax base and the employment of a community is not automatically a legitimate zoning goal. See Concerned Citizens for McHenry, Inc. v. City of McHenry, 76 Ill. App.3d 798, 32 Ill.Dec. 563, 568, 395 N.E.2d 944, 950 (1979) (an increase in the tax base of the community as the primary justification for a rezone is “totally violative of all the basic principles of zoning”); Oakwood at Madison, Inc. v. Township of Madison, 117 N.J. Super. 11, 283 A.2d 353, 357 (1971) (finding that “fiscal zoning per se is irrelevant to the statutory purposes of zoning [although] ‘alleviating tax burden is a permissible zoning purpose if done reasonably and in furtherance of a comprehensive plan) (citing Gruber v. Mayor and Tp. Committee of Raritan Tp., 39 N.J. 1, 186 A.2d 489, 493 (1962))’“; Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489, 497 (1971) (allowing industrial development on only one site would be arbitrary spot zoning despite the potential tax revenue the oil refinery would produce). Thus, the goal of increasing the tax base and employment opportunities is usually legitimate only if the ordinance is otherwise reasonable and in accordance with the comprehensive plan.


    Some courts have allowed inconsistent small or single parcel rezoning in order to raise tax revenues or stimulate needed industry if the public receives higher tax revenue or employment industries. Ziegler, supra, § 28.04, at 28-20. Generally, the facility being built must be indisputably needed, and the city must have secured assurance as to the existence and amount of increased employment and tax revenue. For example, in Information Please Inc. v. County Comm’rs of Morgan County, 42 Colo. App. 392, 600 P.2d 86 (1979), the county rezoned agricultural area to industrial to accommodate an electric utility after determining the plant would add $46,000,000 to the tax base of the county, and provide approximately 250 jobs after it was completed. Id. 600 P.2d at 88. In Watson v. Town Council of Bernalillo, 111 N.M. 374, 805 P.2d 641, 647 (App. 1991), the county made findings that the rezone would employ eighty-seven people from the community and would produce tax revenues constituting twenty-five percent of the city’s budget. In Chrismon v. Guilford County, 322 N.C. 611, 370 S.E.2d 579, 590 (1988), the court approved the rezoning of two contiguous tracts from agricultural to conditional use industrial district to facilitate expansion of an already-operating grain elevator. The court stated that the “[e]vidence clearly shows that [the owner’s] operation is beneficial to area farmers.” Id. It also noted that spot zoning will be allowed even where the adjacent property owners object and the owner receives a greater benefit than others if there is a community-wide need for the rezone. Id.


  10. Currently, Rosi Jr.’s lot is not affected by Ordinance 92-18 since that lot has been contract rezoned to GC1.


  11. There may be an immaterial discrepancy about the size of the reclassified area. There was testimony Ordinance 92-18 affected 7.29 acres, but the trial court’s memorandum decision stated the affected lots contained about 7.44 acres. That decision did not state that the exact size of the parcel was significant to its determination that the amendment does not constitute illegal spot zoning.


  12. I note my agreement with the court’s other holdings.


Covington v. The Town of Apex,

108 N.C. App. 231 (N.C. Ct. App. 1992)



Grimes and Teich by S. Janson Grimes, Asheville, for plaintiffs-appellees.


Holleman and Stam by Henry C. Fordham, Jr., Apex, for defendants-appellants.


 


Johnson, Judge.


On 26 March 1990, C & D Investment Company, Inc. (hereinafter C & D) petitioned the Town of Apex to rezone the property located at 212 S. Salem Street, Apex, N.C. from Office & Institutional-1 to Conditional Use Business-2. The rezoning was sought to permit electronic assembly by a prospective tenant, A & E Electronic, Inc. (hereinafter A & E), within the former post office building located on the subject property.


The subject property is bordered by property zoned as follows: to its immediate north by property zoned Office to its immediate east by property zoned Business-1; to its immediate southeast by property zoned Business-2; to its immediate south by property zoned Office & Institutional-1; and to its immediate west by property zoned Residential-6.


On 7 May 1990, the Apex Planning Board held a public hearing on the rezoning application. The Apex Planning Director, David Rowland, recommended approval of the rezoning petition in his memorandum given to the Planning Board and Board of Commissioners. On 4 June 1990, the Planning Board voted 5-2 to recommend approval of the rezoning.


On 10 May 1990, several persons, including Donald W. Grimes who resides next to the subject property, submitted a valid protest petition to the Town of Apex. The Apex Board of Commissioners held public hearings on 15 May 1990 and 5 June 1990. After hearing the testimony, the board voted 4-1 to amend the zoning ordinance to rezone the subject property to a Conditional Use Business-2 district with the condition that use of the tract be restricted to the uses permitted in Office and Institutional-1 plus the use of electronic assembly. The mayor executed the ordinance effecting the rezoning on 19 June 1990. Plaintiffs instituted this action.


Plaintiffs filed suit in the Superior Court of Wake County. After defendants answered denying plaintiffs’ allegations, plaintiffs filed a motion for summary judgment. Defendants also filed a motion for summary judgment. The Honorable Donald W. Stephens, Superior Court Judge, granted plaintiffs’ motion and denied defendants’ motion. Defendants, the Town of Apex and the named commissioners, gave timely notice of appeal.


… .


“Zoning, as a definitional matter, is the regulation by a local governmental entity of the use of land within a given community, and of the buildings and structures which may be located thereon.” Chrismon v. Guilford County, 322 N.C. 611, 617, 370 S.E.2d 579, 583 (1988). “A county’s legislative body has authority to rezone when reasonably necessary to do so in the interests of the public health, safety, morals or general welfare; ordinarily the only limitation upon this authority is that it may not be exercised arbitrarily or capriciously.” Nelson v. Burlington, 80 N.C.App. 285, 287, 341 S.E.2d 739, 740-741 (1986). “A duly adopted zoning ordinance is presumed to be valid, and the burden is upon the plaintiff to establish its invalidity.” Id.


… .


“In this case and indeed in any spot zoning case in North Carolina courts, two questions must be addressed by the fact finder: (1) did the zoning activity in the case constitute spot zoning as our courts have defined that term; and (2) if so, did the zoning authority make a clear showing of a reasonable basis for the zoning.” Chrismon, 322 N.C. at 625, 370 S.E.2d at 588.


The North Carolina Supreme Court has defined spot zoning as


A zoning ordinance, or amendment which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned … so as to relieve the small tract from restrictions to which the rest of the area is subjected is called spot zoning.


Dale v. Town of Columbus, 101 N.C.App. 335, 338, 399 S.E.2d 350, 352 (1991); see Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).


An essential element of spot zoning is a small tract of land owned by a single person and surrounded by a much larger area uniformly zoned. Plaintiffs’ supporting materials showed that the parcel of land was a small rectangular lot, 100’ × 275’ in size, and owned by a single owner, C & D. They also presented materials which showed that the vast majority of the land surrounding the subject tract is uniformly zoned.


The Court of Appeals, in Mahaffey v. Forsyth County, 99 N.C.App. 676, 394 S.E.2d 203 (1990), aff’d., 328 N.C. 323, 401 S.E.2d 365 (1991), stated that a tract must be examined relative to the vast majority ofthe land immediately surrounding it, not just a small isolated pocket of property. The vast majority of the land in Mahaffey was zoned Residential-5 and Residential-6 while property 700 feet down the highway was zoned Business-1. The Court found that the property zoned Business-1 was an isolated pocket of spot zoning and held that the vast majority of the property surrounding the subject tract, absent the isolated pocket of spot zoning, was uniformly zoned. Mahaffey, 99 N.C.App. at 681, 394 S.E.2d at 206.


In the case sub judice, plaintiffs used zoning maps to show that the subject tract is surrounded by a vast majority of property zoned either Residential-6 or Office & Institutional. Property adjacent to the subject tract is zoned Business-1 and Business-2. The two isolated pockets of property zoned Business-1 and Business-2, at the time they were implemented, were both surrounded by Residential-6 and Office & Institutional zoning. The properties zoned Business-1 and Business-2 are themselves examples of spot zoning. On the basis that the property is surrounded by property uniformly zoned Residential-6 and Office & Institutional, the zoning ordinance enacted by the Town of Apex is spot zoning as defined by the North Carolina Courts.


The North Carolina Supreme Court, however, has established that spot zoning is not invalid per se. Chrismon, 322 N.C. at 627, 370 S.E.2d at 589. If there is a reasonable basis for the spot zoning in question, then the spot zoning is legal and therefore valid. “The practice [of spot zoning] is not invalid per se but is beyond the authority of the municipality or county and therefore void only in the absence of a reasonable basis.” Id.


The North Carolina Supreme Court has enumerated several factors that are relevant to a showing of the existence of a sufficient reasonable basis for spot zoning.


1. The size of the tract in question.


2. The compatibility of the disputed action with an existing comprehensive zoning plan.


3. The benefits and detriments for the owner, his neighbors and the surrounding community.


4. The relationship of the uses envisioned under the new zoning and the uses currently present in adjacent tracts.


Chrismon, 322 N.C. at 628, 370 S.E.2d at 589.


The first factor is the size of the tract in question. Plaintiffs provided evidence that the tract is a single rectangular lot, 100’ × 275’ in size, with a one-story masonry building containing 3,780 square feet of net interior floor space. The lot is surrounded by residences on three sides and is uniformly zoned Residential-6 and Office & Institutional.


The second factor is the compatibility of the disputed action with an existing comprehensive zoning plan. “Zoning generally must be accomplished in accordance with a comprehensive plan in order to promote the general welfare and serve the purpose of the enabling statute.” Alderman v. Chatham County, 89 N.C.App. 610, 615-616, 366 S.E.2d 885, 889, disc. review denied, 323 N.C. 171, 373 S.E.2d 103 (1988). The North Carolina General Statutes § 153A-341 (1983) addresses this issue:


Zoning regulations shall be made in accordance with a comprehensive plan[.] The regulations shall be made with reasonable consideration as to, among other things, the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land through the county….


In the present case, a comprehensive zoning plan entitled 2010 Land Use Plan was adopted on 5 December 1989. The plan list several guidelines for future development in the Town of Apex. The two that are relevant to this appeal are the following: (1) Use buffer areas and transitional zoning to protect adjacent existing residential development and (2) Industrial uses should be located adjacent to or near the major railroad corridors and away from residential areas. The 2010 land Use Map also provides that South Salem Street should continue to be zoned and developed for Office & Institutional uses to provide a transition between residential and more intensive uses. Although the property is zoned Conditional Use Business-2 with the same features as Office & Institutional, the uses to be employed are industrial in nature. The Town of Apex enacted a zoning ordinance in direct contravention of its comprehensive zoning plan.


The third relevant factor is the benefits and detriments to the owner, his neighbors and the surrounding community.


The standard is not the advantage or detriment to particular neighboring landowners, but rather the effect upon the entire community as a social, economic and political unit. That which makes for the exclusive and preferential benefit of such particular landowner, with no relation to the community as a whole, is not a valid exercise of this sovereign power.


Chrismon, 322 N.C. at 629, 370 S.E.2d at 590, citing Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 150, 198 A. 225, 233 (1938). The benefits to the owner are monetary in nature. When C & D leased the premises to the postal service in December 1989, the rent was $8,000.00 per year. The lease between C & D and A & E, dated 1 June 1990, fixed the rent at $18,000.00 per year. By leasing the premises to A & E, C & D will receive a $10,000.00 increase in rental profits. C & D will also benefit from the special conditions of the permit which required additional streetscaping to be performed by the tenant around the subject property. The zoning change presents no detriment to C & D.


The only benefit to the community provided by the zoning change is one of an aesthetic nature. Again, the prospective tenant, in accordance with the conditions listed in the zoning ordinance, is obligated to perform streetscaping around the premises. No jobs will be created by the zoning change nor services provided which would specifically benefit the community. The main detriment to the community would be the placement of an industrial use in an area where the property is used for residential and professional purposes.


In Chrismon, the Court considered the community’s support of the rezoning ordinance in order to assess the benefit of the zoning change to the community. In the case sub judice, there was no support for the purported zoning change. In fact, sixty Apex residents signed a protest petition in opposition to the proposed zoning change.


The final factor listed by the Chrismon Court in determining whether or not a reasonable basis exists for spot zoning focuses on the compatibility of the uses envisioned in the rezoned tract with the uses already present in adjacent tracts. The use envisioned under the new zoning change is electronic assembly. Present uses of property surrounding the subject tract include: residential dwellings on three sides, medical offices, a bank, a pharmacy and a jewelry store.


Plaintiffs correctly contend that the use envisioned by A & E is a drastic change from the uses already present in the surrounding area. Electronic assembly is manufacturing which is totally different from the various uses that are already present in the surrounding areas. Ann Sears, president of A & E, stated in her deposition that at various times automobiles, vans and tractor trailer trucks would create a flow of traffic in and out of the premises. This type of activity would totally destroy the tenor of the basically residential and professional area. In Chrismon, the Court declared that “rezoning of a parcel in an old and well established residential district to a commercial or industrial district would be clearly objectionable.” 322 N.C. at 631, 370 S.E.2d at 591.


For the foregoing reasons, the trial court correctly granted the plaintiffs’ motion for summary judgment and denied defendants’ motion for summary judgment. Accordingly, we affirm.


Chrismon v. Guildford County,

322 N.C. 611 (1988)



Gunn & Messick by Paul S. Messick, Jr., Pittsboro, for plaintiffs-appellees.


Samuel Moore, Deputy Co. Atty., Greensboro, for defendants-appellants Guilford County and Members of the Bd. of Com’rs of Guilford County.


Ralph A. Walker and Osteen, Adams & Tilley by William L. Osteen, Greensboro, for defendant-appellant Bruce Clapp.


Thomas A. McCormick, Jr., City Atty., City of Raleigh by Ira J. Botvinick, Deputy City Atty., Raleigh, and Jesse L. Warren, City Atty., Greensboro, and Henry W. Underhill, Jr., City Atty., Charlotte, amici curiae.


 


Meyer, Justice.


 


This was an action by plaintiffs for a declaratory judgment with regard to an amendment to the Guilford County, North Carolina, zoning ordinance. Specifically, plaintiffs sought a judgment declaring that the amendment to the ordinance adopted 20 December 1982 rezoning defendant Bruce Clapp’s 8.57 acres of land was unlawful and therefore void. The principal issue presented on this appeal is whether the trial court committed reversible error in affirming the validity of the rezoning in question. The Court of Appeals reversed, holding, first, that the rezoning in question constituted illegal “spot zoning” and, second, that it also constituted illegal “contract zoning.” We hold that the Court of Appeals erred in both of these conclusions, and accordingly, we reverse.


The facts underlying the case are undisputed. Defendant Bruce Clapp (who is not related to defendant Paul Clapp, a member of the Guilford County Board of Commissioners) had been operating a business on a 3.18-acre tract of property adjacent to his residence in Rock Creek Township, Guilford County, since 1948. Mr. Clapp’s business consisted, first, of buying, drying, storing, and selling grain and, second, of selling and distributing lime, fertilizer, pesticides, and other agricultural chemicals. The distinction between these two principal elements of Mr. Clapp’s business is important to the disposition of this case.


In 1964, Guilford County adopted a comprehensive zoning ordinance. The ordinance zoned Mr. Clapp’s 3.18-acre tract, as well as an extensive area surrounding his tract, as “A-1 Agricultural” (hereinafter “A-1”). Under this particular zoning classification, one element of the business— namely, the grain drying and storing operation—constituted a permitted use. Significantly, however, the sale and distribution of the lime, fertilizer, pesticides, and other agricultural chemicals were not uses permitted by the A-1 classification. However, because this latter activity pre-existed the ordinance, Mr. Clapp was allowed to continue to sell agricultural chemicals on the 3.18-acre tract adjacent to his own home. Under the ordinance, though such sales constituted a nonconforming use, the sales could be carried on, so long as they were not expanded.


In 1969, plaintiffs William and Evelyn Chrismon bought a tract of land from Mr. Clapp and built a home there. Plaintiffs’ lot is located at the south side of the intersection of North Carolina Highway 61 and Gun Shop Road. Highway 61 runs north and south, while Gun Shop Road, a small, unpaved road, begins at Highway 61 and runs east. Mr. Clapp’s residence is located on the north side of the intersection, directly across Gun Shop Road from plaintiffs’ residence. Adjacent to plaintiffs’ lot is an additional 5.06-acre tract, also owned by Mr. Clapp. Prior to 1980, that tract had been used by its owner for the growing of tobacco.


Beginning in 1980, however, Mr. Clapp moved some portion of his business operation from the 3.18-acre tract north of Gun Shop Road to the 5.06-acre tract south of Gun Shop Road, directly adjacent to plaintiffs’ lot. Subsequently, Mr. Clapp constructed some new buildings on this larger tract, erected several grain bins, and generally enlarged his operation. Concerned by the increased noise, dust, and traffic caused by Mr. Clapp’s expansion, plaintiffs filed a complaint with the Guilford County Inspections Department. The Inspections Department subsequently notified Mr. Clapp, by letter dated 22 July 1982, that the expansion of the agricultural chemical operation to the larger tract adjacent to plaintiffs’ lot constituted an impermissible expansion of a nonconforming use. The same letter informed Mr. Clapp further that, though his activity was impermissible under the ordinance, should he so desire, he could request a rezoning of the property.


Shortly thereafter, Mr. Clapp applied to have both of the tracts in question, the 3.18-acre tract north of Gun Shop Road and the 5.06-acre tract south of Gun Shop Road, rezoned from A-1 to “Conditional Use Industrial District” (hereinafter CU-M-2).1 He also applied for a conditional use permit, specifying in the application that he would use the property as it was then being used and listing those improvements he would like to make in the next five years. Under the CU-M-2 classification, Clapp’s agricultural chemical operation would become a permitted use upon the issuance of the conditional use permit. The Guilford County Planning Board met on 8 September 1982 and voted to approve the recommendation of the Planning Division that the property be rezoned consistent with Mr. Clapp’s request.


On 20 December 1982, pursuant to appropriate notice, the Guilford County Board of Commissioners held a public hearing concerning Mr. Clapp’s rezoning application. Members of the Board heard statements from Mr. Clapp, from plaintiffs, and, also, from plaintiffs’ attorney. Several additional persons had previously spoken in favor of Mr. Clapp’s rezoning request at earlier Board meetings, stating that Mr. Clapp’s business provided a service to the farmers in the immediate vicinity. The Board had also been presented with a petition signed by eighty-eight persons favoring the rezoning. Having considered the matter, the Board members voted to rezone the tracts in question from A-1 to CU-M-2, and as a part of the same resolution, they also voted to approve the conditional use permit application.


Pursuant to this decision by the County to rezone the property in question, plaintiffs brought this action seeking to have both the zoning amendment and the conditional use permit declared invalid. After a trial without a jury, the trial court found, among other things, that the sale and distribution of the agricultural chemicals were uses compatible with the agricultural needs of the surrounding area. The trial court concluded further that the rezoning was neither “spot zoning” nor “contract zoning” and also that the County had not acted arbitrarily in making its decision. The trial court made neither findings of fact nor conclusions of law with regard to the issuance of the conditional use permit.


As indicated above, the Court of Appeals reversed the decision of the trial court. It held, first, that the rezoning at issue in this case—namely, the rezoning of Mr. Clapp’s 8.57 acres from A-1 to CU-M-2—constituted an illegal form of “spot zoning” and was therefore void. It so held for three principal reasons: (1) the rezoning was not called for by any change of conditions on the land; (2) the rezoning was not called for by the character of the district and the particular characteristics of the area being rezoned; and (3) the rezoning was not called for by the classification and use of nearby land. The Court of Appeals further held that the mere fact that the uses actually authorized were not, in and of themselves, incompatible with the general area was not sufficient to support the trial court’s finding of no illegal spot zoning on these facts.


The Court of Appeals held, second, that the rezoning in question also constituted illegal “contract zoning” and was therefore also void for that alternative reason. Here, stated the Court of Appeals, the rezoning was accomplished upon the assurance that Mr. Clapp would submit an application for a conditional use permit specifying that he would use the property only in a certain manner. The Court of Appeals concluded that, in essence, the rezoning here was accomplished through a bargain between the applicant and the Board rather than through a proper and valid exercise of Guilford County’s legislative discretion. According to the Court of Appeals, this activity constituted illegal “contract zoning” and was therefore void.


Pursuant to N.C.G.S. § 7A-31, and because this Court was convinced that this cause involves legal principles of major significance to the jurisprudence of this State, we allowed defendants’ petition for discretionary review of the Court of Appeals’ decision. The questions plainly before us are these: first, did the rezoning of defendant Clapp’s tract from A-1 to CU-M-2 by the Guilford County Board of Commissioners constitute illegal spot zoning; and second, did the same rezoning constitute illegal contract zoning. The Court of Appeals answered each question in the affirmative. We conclude that the correct answer to both questions is “no.”


… .


We turn now to the question of spot zoning. As we noted above, in its opinion below, the Court of Appeals held that the rezoning at issue here—namely, the rezoning of Mr. Clapp’s two tracts from A-1 to CU-M-2—constituted an illegal form of “spot zoning” and was therefore void. In arriving at its holding, the Court of Appeals concluded that Guilford County had “failed to show a reasonable basis” for the rezoning in question and cited three principal reasons for its conclusion: (1) the rezoning was not called for by any change of conditions on the land; (2) the rezoning was not called for by the character of the district and the particular characteristics of the area being rezoned; and (3) the rezoning was not called for by the classification and use of nearby land.


While this Court agrees with some portions of the analysis employed by the Court of Appeals, we must disagree with that court’s final conclusion. In our firmly held view, the rezoning accomplished in this case, while admittedly constituting a form of spot zoning, constituted a legal, and not an illegal form of spot zoning. Notwithstanding the Court of Appeals’ conclusion to the contrary, we find that, on the facts of this case, the county did show a reasonable basis for the rezoning at issue. Moreover, while this is a case of first impression in that it involves the practice of conditional use zoning, we find our result to be consistent with related zoning cases from other jurisdictions. Accordingly, the Court of Appeals is reversed on this question.


We note as an initial matter that there is substantial disagreement amongst jurisdictions across the nation as to both the proper definition of and the legal significance of the term “spot zoning.” Jurisdictions have essentially divided into two distinct camps. One group, the majority of jurisdictions, regards the term “spot zoning” as a legal term of art referring to a practice which is per se invalid. See 2 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning § 28.01 (4th ed. 1987); 1 R. Anderson, American Law of Zoning § 5.12 (3d ed. 1986); 2 E. Yokley, Zoning Law and Practice § 13-3 (4th ed. 1978). In such jurisdictions, a judicial determination that a given rezoning action constitutes spot zoning is, ipso facto, a determination that the rezoning action is void.


The position of this first group has been described by one commentator as follows:


Spot zoning amendments are those which by their terms single out a particular lot or parcel of land, usually small in relative size, and place it in an area the land use pattern of which is inconsistent with the small lot or parcel so placed, thus projecting an inharmonious land use pattern. Such amendments are usually triggered by efforts to secure special benefits for particular property owners, without proper regard for the rights of adjacent landowners. These are the real spot zoning situations. Under no circumstances could the tag of validity be attached thereto.


2 E. Yokley, Zoning Law and Practice § 13-3 at 207 (4th ed. 1978) (emphasis added).


A somewhat smaller group of jurisdictions, including our own, has taken a different approach. In these jurisdictions, it has been stated that “spot zoning” is a descriptive term merely, rather than a legal term of art, and that spot zoning practices may be valid or invalid depending upon the facts of the specific case. See 2 E. Yokley, Zoning Law and Practice § 13-5 (4th ed. 1978); 2 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning § 28.01 n. 1 (4th ed. 1987). See also Tennison v. Shomette, 38 Md.App. 1, 379 A.2d 187 (1977); Save Our Rural Environment v. Snohomish County, 99 Wash.2d 363, 662 P.2d 816 (1983) (holding that the practice of spot zoning is not invalid per se). Unlike in the majority of jurisdictions, in these jurisdictions, a spot zoning case poses, not merely the lone question of whether what occurred on the facts constituted spot zoning. It also poses the additional question of whether the zoning action, if spot zoning, was of the legal or illegal variety.


We are firmly amongst this latter group of jurisdictions which has held that spot zoning is not invalid per se. For example, in this Court’s opinion in Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972), we defined “spot zoning” as follows:


A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned, so as to impose upon the small tract greater restrictions than those imposed upon the larger area, or so as to relieve the small tract from restrictions to which the rest of the area is subjected, is called “spot zoning.”


Id. at 549, 187 S.E.2d at 45. However, having so defined the practice, we hastened to add that the practice is not invalid per se but, rather, that it is beyond the authority of the municipality or county and therefore void only “in the absence of a clear showing of a reasonable basis” therefor. Id.


Accordingly, in this case, and indeed in any spot zoning case in North Carolina courts, two questions must be addressed by the finder of fact: (1) did the zoning activity in the case constitute spot zoning as our courts have defined that term; and (2) if so, did the zoning authority make a clear showing of a reasonable basis for the zoning. In the case at bar, since the action by the Board was so clearly spot zoning under the Blades definition, this two-part inquiry can quickly be narrowed to the lone question of whether there is a clear showing of a reasonable basis. As the Court of Appeals quite correctly stated in its opinion below in this case:


The rezoning amendment here clearly constitutes spot zoning. The rezoned area was only 8.57 acres and was uniformly surrounded by property zoned A-1. The remaining question then is whether there was a reasonable basis for the county’s action in spot zoning the 8.57 acre tract.


Chrismon v. Guilford County, 85 N.C. App. 211, 215, 354 S.E.2d 309, 312 (emphasis added).


It is at this point, however, that we differ with the decision of the Court of Appeals. As we stated above, in its opinion, the Court of Appeals concluded, after considering several different factors, that the Board of County Commissioners had failed to clearly demonstrate a reasonable basis for its zoning action and, further, that the action was therefore void. With due respect, we find the analysis employed by the Court of Appeals to be flawed. In the view of this Court, the Board did in fact clearly show a reasonable basis for its rezoning of Mr. Clapp’s two tracts from A-1 to CU-M-2. We are particularly persuaded, first, by the degree of public benefit created by the zoning action here and, second, by the similarity of the proposed use of the tracts under the new conditional use zone to the uses in the surrounding A-1 areas.


At the outset, we note that a judicial determination as to the existence or nonexistence of a sufficient reasonable basis in the context of spot zoning is, and must be, the “product of a complex of factors.” 1 R. Anderson, American Law of Zoning § 5.13 at 364 (3d ed. 1986). The possible “factors” are numerous and flexible, and they exist to provide guidelines for a judicial balancing of interests. 2 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning § 28.01 (4th ed. 1987). Among the factors relevant to this judicial balancing are the size of the tract in question; the compatibility of the disputed zoning action with an existing comprehensive zoning plan; the benefits and detriments resulting from the zoning action for the owner of the newly zoned property, his neighbors, and the surrounding community; and the relationship between the uses envisioned under the new zoning and the uses currently present in adjacent tracts. See id.; 1 R. Anderson, American Law of Zoning § 5.13 (3d ed. 1986). Once again, the criteria are flexible, and the specific analysis used depends on the facts and circumstances of a particular case. 2 A. Rathkopf & D. Rathkopf, The Law of Planning and Zoning § 28.01 (4th ed. 1987).


Turning our attention to the case before us, we find the latter two of the above-mentioned factors to argue forcefully for the proposition that the rezoning activity here was supported by a reasonable basis. First, the relative benefits and detriments accruing to Mr. Clapp, Mr. Chrismon, and the surrounding area as a result of the rezoning are instructive. It has been stated that the true vice of illegal spot zoning is in its inevitable effect of granting a discriminatory benefit to one landowner and a corresponding detriment to the neighbors or the community without adequate public advantage or justification. 2 E. Yokley, Zoning Law and Practice § 13-3 (4th ed. 1978); see Smith v. Skagit County, 75 Wash.2d 715, 453 P.2d 832 (1969). Accordingly, while spot zoning which creates a great benefit for the owner of the rezoned property with only an accompanying detriment and no accompanying benefit to the community or to the public interest may well be illegal, spot zoning which provides a service needed in the community in addition to benefitting the landowner may be proper. See 2 E. Yokley, Zoning Law and Practice § 13-3 (4th ed. 1978).


Courts from other jurisdictions have held, for example, that the mere fact that an area is rezoned at the request of a single owner and is of greater benefit to him than to others does not make out a case of illegal spot zoning if there is a public need for it. See, e.g., Jaffe v. City of Davenport, 179 N.W.2d 554 (Iowa 1970); Sweeney v. City of Dover, 108 N.H. 307, 234 A.2d 521 (1967). The Supreme Court of New Jersey long ago announced a standard for properly weighing the various benefits and detriments created by disputed zoning activity. In a statement with which this Court agrees, that court stated as follows:


The standard is not the advantage or detriment to particular neighboring landowners, but rather the effect upon the entire community as a social, economic and political unit. That which makes for the exclusive and preferential benefit of such particular landowner, with no relation to the community as a whole, is not a valid exercise of this sovereign power.


Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 150, 198 A. 225, 233 (1938) (emphasis added).


Turning to the facts of the case at bar, it is manifest that Mr. Clapp, the owner of the tracts rezoned in this case, has reaped a benefit by the Board’s action. Specifically, by virtue of the Board’s decision to rezone the tracts from A-1 to CU-M-2, Mr. Clapp will be able to carry on the otherwise illegal storage and sale of agricultural chemicals on both of his two tracts along Gun Shop Road in rural Guilford County. It is also beyond question that the plaintiffs in this case, the Chrismons, have simultaneously sustained a detriment. They, of course, would prefer that Mr. Clapp carry on his agricultural chemical operation somewhere other than next door to their home. Notwithstanding this, and consistent with the authority excerpted above, it is important, in our view, to consider this in the added context of both the benefits of the rezoning for the surrounding community and for the public interest.


As the Court of Appeals quite correctly conceded in its opinion below, “[t]he evidence clearly shows that Mr. Clapp’s operation is beneficial to area farmers.” Chrismon v. Guilford County, 85 N.C.App. 211, 218, 354 S.E.2d 309, 313-14. The record reveals that members of the farming community surrounding the disputed land spoke in favor of the rezoning action during a meeting of the Guilford County Board of Commissioners prior to the ultimate meeting of 20 December 1982. Moreover, the record also reveals that, at one of the Board’s meetings concerning the proposed rezoning, the Board was presented with a petition signed by some eighty-eight area residents favoring the action. While this Court understands that it was the Chrismons alone who lived next door to the operation, we do note that it was the Chrismons, and no one else, who spoke up against the rezoning.


In addition to this record evidence of substantial community support for Mr. Clapp’s proposed use, there is additional and more objective evidence that the operation constitutes a use valuable to the surrounding community. The area in the vicinity of Mr. Clapp’s operation is zoned for some miles as exclusively A-1 and is used by many for farming activities. Quite independent of the indications from members of the community that they have a subjective need for Mr. Clapp’s services, it cannot be gainsaid that services of this type— namely, the storage and sale of pesticides, lime, and fertilizer—are valuable in a farming community such as that here. It has been held elsewhere that community-wide need for commercial or industrial facilities usually takes precedence over the objections of several adjacent property owners. See Citizens Ass’n of Georgetown, Inc. v. D.C. Zoning Comm’n, 402 A.2d 36 (D.C. App.1979). We believe that to be the case here.


A second factor that we find important in the determination of a reasonable basis for the spot zoning here is the similarity between the proposed use of the tracts under the new conditional use zone and the uses already present in surrounding areas. In its opinion in this case, the Court of Appeals stated as follows:


The only finding of fact which would arguably allow the trial court to conclude that the rezoning was supported by a reasonable basis is that the uses actually authorized were not incompatible with the general area…. We cannot agree.


Chrismon v. Guilford County, 85 N.C. App. 211, 218, 354 S.E.2d 309, 313-14 (emphasis added). We disagree strongly with the Court of Appeals on this point. In our view, even in the wake of the rezoning of Mr. Clapp’s tracts to CU-M-2, the uses present in the rezoned area and the surrounding A-1 area will remain, by virtue of the restrictions inherent in conditional use zoning, quite similar. At the very least, the differences in the uses will certainly not be vast, as is often the situation in a case of illegal spot zoning.


The compatibility of the uses envisioned in the rezoned tract with the uses already present in surrounding areas is considered an important factor in determining the validity of a spot zoning action. 2 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning § 28.04 (4th ed. 1987); 1 R. Anderson, American Law of Zoning § 5.16 (3d ed. 1986). One commentator addressed this factor as follows:


In determining whether a zoning amendment constitutes spot zoning, the courts will consider the character of the area which surrounds the parcel reclassified by the amendment. Most likely to be found invalid is an amendment which reclassifies land in a manner inconsistent with the surrounding neighborhood.


1 R. Anderson, American Law of Zoning § 5.16 at 383 (3d ed. 1986) (emphasis added). One court has described the evil to be avoided as “an attempt to wrench a single small lot from its environment and give it a new rating which disturbs the tenor of the neighborhood.” Magnin v. Zoning Commission, 145 Conn. 26, 28, 138 A.2d 522, 523 (1958) (emphasis added). We see no such disturbance on the facts before us.


While significant disturbances such as the rezoning of a parcel in an old and well-established residential district to a commercial or industrial district would clearly be objectionable, see, e.g., Mraz v. County Comm’rs of Cecil County, 291 Md. 81, 433 A.2d 771 (1981), this is clearly not such a case. We note first that, in actuality, the rezoning of the tracts in question from A-1 to CU-M-2, with all of the attendant restrictions and conditions, really represents very little change. The A-1 classification, as we stated earlier in our review of the facts of this case, allows all of Mr. Clapp’s current operation except for the storage and sale of agricultural chemicals. The most noticeable activity, and the activity we suspect the plaintiffs would most like to be rid of—namely, the storage and sale of grain—is a conforming use under the A-1 classification and can legally continue irrespective of any zoning change. In addition, the conditions accompanying the disputed rezoning in the form of the conditional use permit essentially restrict Mr. Clapp to the very activities in which he is currently engaging—the storage and sale of agricultural chemicals—and nothing more.


Second, this is simply not a situation like that alluded to above in which a radically different land use, by virtue of a zoning action, appears in the midst of a uniform and drastically distinct area. No parcel has been “wrenched” out of the Guilford County landscape and rezoned in a manner that “disturbs the tenor of the neighborhood.” As we have noted on several occasions, the area surrounding the tracts in question is uniformly zoned as A-1 agricultural. The A-1 district, a general use district in the Guilford County comprehensive zoning scheme, provides for a wide variety of uses. Conforming uses under the A-1 district include such disparate uses as single family dwellings, sawmills, fish or fowl hatcheries, farms, hospitals, and grain mills like the one Mr. Clapp was in fact operating here. In our view, the use of the newly rezoned tracts, pursuant to a CU-M-2 assignment, to store and sell agricultural chemicals is simply not the sort of drastic change from possible surrounding uses which constitutes illegal spot zoning.


Our research has revealed a case from another jurisdiction, Earle v. McCarthy, 28 Or.App. 539, 560 P.2d 665 (1977), which is strikingly similar on the facts to that before us today. While the court was not specifically called upon there to address a spot zoning challenge, it upheld the issuance of a conditional use permit.


In Earle, the Marion County Board of Commissioners granted defendant a conditional use permit for the construction of a hop warehouse. The warehouse was to store a rather large volume of crops from many local hop growers and was, in addition, to store and sell string and burlap used in hop production. The proposed site of the warehouse was in an area of land designated pursuant to the local zoning ordinance as an EFU (Exclusive Farm Use) zone, the purpose of which was as follows:


“The purpose and intent of the Exclusive Farm Use zone is to provide areas for the continued practice of agriculture and permit the establishment of only those new uses which are compatible to agricultural activities.


Earle v. McCarthy, 28 Or.App. 539, 542, 560 P.2d 665, 666 (quoting local ordinance) (emphasis added).


Owners of land near the proposed site of the warehouse challenged the action of the local board. In the view of the court, the warehouse constituted, pursuant to the relevant ordinance, a commercial activity in conjunction with farm use and was therefore a proper use even within an exclusive farm use zone. In our opinion, the parallels between the Oregon case and that before us are striking. The relationship between the hop warehouse and the surrounding EFU zone in the Oregon case, in our view, mirrors the relationship between Mr. Clapp’s agricultural chemical operation and the adjacent A-1 district in this case. Here, as there, the local authority’s activity was proper.


As we noted earlier in this section, cases involving a challenge to a rezoning action on the basis of possible illegal spot zoning are very fact specific; their resolution turns very heavily on the particular facts and circumstances of the case. This spot zoning case, in which the disputed action changed a general district zone to a conditional use zone, is, for that reason, a case of first impression. While this Court has addressed the issue of spot zoning in North Carolina cases involving rezoning from one general district to another, the facts of these cases are not analogous to this case and are therefore not helpful.


In sum then, while we agree with the Court of Appeals that the rezoning of Mr. Clapps’ two tracts constituted a form of spot zoning under the Blades definition, we find, contrary to its conclusion, that this activity was of the legal and not illegal variety. More precisely, we find that, because of the quite substantial benefits created for the surrounding community by the rezoning and because of the close relationship between the likely uses of the rezoned property and the uses already present in the surrounding tracts, there was a clear showing of a reasonable basis for the spot zoning in this instance. It is therefore not void, and the Court of Appeals is reversed as to this point.


… .




FOOTNOTES

  1. The 3.18-acre tract and the 5.06-acre tract, taken together, do not correspond precisely to the 8.57-acre total indicated in Mr. Clapp’s rezoning request. The record reveals that the additional .33 acre in question corresponds to land adjacent to one of the tracts for which Mr. Clapp had an option to buy. We make this explanation for the sake of clarity only; it is not relevant to the disposition of the case.


3.7. Contract Zoning


Chrismon v. Gilford County,

322 N.C. 611 (1988)



Gunn & Messick by Paul S. Messick, Jr., Pittsboro, for plaintiffs-appellees.


Samuel Moore, Deputy Co. Atty., Greensboro, for defendants-appellants Guilford County and Members of the Bd. of Com’rs of Guilford County.


Ralph A. Walker and Osteen, Adams & Tilley by William L. Osteen, Greensboro, for defendant-appellant Bruce Clapp.


Thomas A. McCormick, Jr., City Atty., City of Raleigh by Ira J. Botvinick, Deputy City Atty., Raleigh, and Jesse L. Warren, City Atty., Greensboro, and Henry W. Underhill, Jr., City Atty., Charlotte, amici curiae.


 


Meyer, Justice.


 


[For the facts of this case, see the prior section.]



We turn finally to the question of contract zoning. As we stated above, in its opinion below, the Court of Appeals also held that the rezoning in question constituted illegal “contract zoning” and was therefore invalid and void for that alternative reason. Relying for support primarily on this Court’s decision in Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432, the Court of Appeals stated, in relevant part, as follows:


[T]he county’s action here also constitutes “contract zoning.” Rezoning lacks a permissible basis where it is done “on consideration of assurances that a particular tract or parcel will be developed in accordance with restricted approval plans.” [>Allred, 277 N.C.] at 545, 178 S.E.2d at 441.


… In effect, the rezoning was done on the assurance that Mr. Clapp would submit an application for a conditional use permit specifying that he would use the property only in that manner. The rezoning here was accomplished as a direct consequence of the conditions agreed to by the applicant rather than as a valid exercise of the county’s legislative discretion.


Chrismon v. Guilford County, 85 N.C. App. 211, 219, 354 S.E.2d 309, 314 (citations omitted).


We must disagree with the Court of Appeals. In the view of this Court, the Court of Appeals, in its approach to the question of whether the rezoning at issue in this case constituted illegal contract zoning, improperly considered as equals two very different concepts—namely, valid conditional use zoning and illegal contract zoning. By virtue of this treatment of the two quite distinguishable concepts, the Court of Appeals has, for all intents and purposes, outlawed conditional use zoning in North Carolina by equating this beneficial land planning tool with a practice universally considered illegal. In fact, for the reasons we will develop below, the two concepts are not to be considered synonymous. Moreover, we hold that the rezoning at issue in this case—namely, the rezoning of Mr. Clapp’s two tracts of land from A-1 to CU-M-2—was, in truth, valid conditional use zoning and not illegal contract zoning.


Illegal contract zoning properly connotes a transaction wherein both the landowner who is seeking a certain zoning action and the zoning authority itself undertake reciprocal obligations in the context of a bilateral contract. Shapiro, The Case for Conditional Zoning, 41 Temp.L.Q. 267 (1968); D. Mandelker, Land Use Law § 6.59 (1982). One commentator provides as illustration the following example:


A Council enters into an agreement with the landowner and then enacts a zoning amendment. The agreement, however, includes not merely the promise of the owner to subject his property to deed restrictions; the Council also binds itself to enact the amendment and not to alter the zoning change for a specified period of time. Most courts will conclude that by agreeing to curtail its legislative power, the Council acted ultra vires. Such contract zoning is illegal and the rezoning is therefore a nullity.


Shapiro, The Case for Conditional Zoning, 41 Temp. L.Q. 267, 269 (1968) (emphasis added). As the excerpted illustration suggests, contract zoning of this type is objectionable primarily because it represents an abandonment on the part of the zoning authority of its duty to exercise independent judgment in making zoning decisions. See id.; see generally Wegner, Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Governmental Land Use Deals, 65 N.C.L.Rev. 957 (1987).


As we indicated in Part I above, valid conditional use zoning, on the other hand, is an entirely different matter. Conditional use zoning, to repeat, is an outgrowth of the need for a compromise between the interests of the developer who is seeking appropriate rezoning for his tract and the community on the one hand and the interests of the neighboring landowners who will suffer if the most intensive use permitted by the new classification is instituted. One commentator has described its mechanics as follows:


An orthodox conditional zoning situation occurs when a zoning authority, without committing its own power, secures a property owner’s agreement to subject his tract to certain restrictions as a prerequisite to rezoning. These restrictions may require that the rezoned property be limited to just one of the uses permitted in the new classification; or particular physical improvements and maintenance requirements may be imposed. Shapiro, The Case For Conditional Zoning, 41 Temp. L.Q. 267, 270-71 (1968) (emphasis added).


In our view, therefore, the principal differences between valid conditional use zoning and illegal contract zoning are related and are essentially two in number. First, valid conditional use zoning features merely a unilateral promise from the landowner to the local zoning authority as to the landowner’s intended use of the land in question, while illegal contract zoning anticipates a bilateral contract in which the landowner and the zoning authority make reciprocal promises. Second, in the context of conditional use zoning, the local zoning authority maintains its independent decision-making authority, while in the contract zoning scenario, it abandons that authority by binding itself contractually with the landowner seeking a zoning amendment.


The Court of Appeals, in its opinion in this case, determined that “[t]he rezoning here was accomplished as a direct consequence of the conditions agreed to by the applicant rather than as a valid exercise of the county’s legislative discretion.” Chrismon v. Guilford County, 85 N.C.App. 211, 219, 354 S.E.2d 309, 314. In so doing, it concluded, in essence, that the zoning authority here—namely, the Guilford County Board of Commissioners—entered into a bilateral agreement, thereby abandoning its proper role as an independent decision-maker and rendering this rezoning action void as illegal contract zoning. This Court disagrees. We conclude that the zoning authority neither entered into a bilateral contract nor abandoned its position as an independent decision-maker. Therefore, we find what occurred in the case before us to constitute valid conditional use zoning and not illegal contract zoning.


First, having carefully reviewed the record in the case, we find no evidence that the local zoning authority—here, the Guilford County Board of Commissioners— entered into anything approaching a bilateral contract with the landowner—here, Mr. Clapp. The facts of the case reveal that, pursuant to a filed complaint from the Chrismons, the Guilford County Inspections Department, by a letter dated 22 July 1982, notified Mr. Clapp that his expansion of the agricultural chemical operation to the tract adjacent to plaintiffs’ lot constituted an impermissible expansion of a nonconforming use. More important for purposes of this issue, the letter informed Mr. Clapp of his various options in the following manner:


Mr. Clapp, there are several courses of action available to you in an effort to resolve your Zoning Ordinance violations:


….


2. You may request rezoning of that portion of your land involved in the violations. This is not a guaranteed option.


Shortly after receiving this letter, Mr. Clapp applied to have both of his tracts of land—the 3.18-acre tract north of Gun Shop Road and the 5.06-acre tract south of Gun Shop Road—rezoned from A-1 to CU-M-2. He also filed written application for a conditional use permit, specifying in the application that he would continue to use the property as it was then being used and, in addition, listing those changes he would like to make in the succeeding five years. While these applications were ultimately approved by the Guilford County Board of Commissioners after a substantial period of deliberation which we highlight below, we are quite satisfied that the only promises made in this case were unilateral—specifically, those from Mr. Clapp to the Board in the form of the substance of his conditional use permit application. As the letter excerpted above makes clear, no promises whatever were made by the Board in exchange, and this rezoning does not therefore fall into the category of illegal contract zoning.


Second, and perhaps more important, the Board did not, by virtue of its actions in this case, abandon its position as an independent decision-maker. The Court of Appeals concluded that, rather than from a “valid exercise of the county’s legislative discretion,” the Board’s decision in this zoning matter in fact resulted from an illegal bargain between the Board and the landowner, Mr. Clapp. This conclusion by the Court of Appeals is, in our view, at odds with the facts developed in the record. On the contrary, we find that the Board made its decision in this matter only after a lengthy deliberation completely consistent with both the procedure called for by the relevant zoning ordinance and the rules prohibiting illegal contract zoning.


The Guilford County Zoning Oridnance provides appropriate procedures to be used by landowners wishing to apply for rezonings to a conditional use district and for conditional use permits. Pursuant to the ordinance, a landowner must apply separately for rezoning to the appropriate conditional use district and for the conditional use permit. This second petition—that for the conditional use permit—must provide specific details of the applicant’s proposed use of the land affected by the potential permit. Petitions are directed to the Guilford County Board of Commissioners and are filed initially in the office of the Planning Department. The Planning Director submits the petition and the Planning Department’s recommendation to the Planning Board. The Planning Board subsequently makes advisory recommendations to the Board of County Commissioners, which, following a public hearing held pursuant to proper notice, makes the final decision as to whether the rezoning application and the permit will be approved or disapproved.


It is undisputed, and plaintiffs conceded as much upon oral argument before this Court, that all procedural requirements were observed in this case. As we indicated above, shortly after the Guilford County Inspections Department notified Mr. Clapp of his violation, he submitted an application for a rezoning of the tracts in question. Simultaneously, he applied for a conditional use permit, specifying how the property was then being used and, in addition, listing those improvements he would like to make in the future. The Planning Division recommended that the property be rezoned accordingly, and the Guilford County Planning Board voted to approve that recommendation at their meeting of 8 September 1982.


Pursuant to proper notice, the Guilford County Board of Commissioners held a public meeting on 20 December 1982 regarding both applications and heard numerous statements from all of the concerned parties. During at least one previous meeting, members of the community had spoken in favor of Mr. Clapp’s rezoning request, numerous ideas had been introduced concerning use of the property, and the Board was presented with a petition signed by eighty-eight persons favoring the rezoning request. While the Court of Appeals’ opinion seems to suggest that the ultimate result of the 20 December 1982 meeting was a foregone conclusion, the record simply does not reveal as much. Instead, the record reveals that the Board made its final decision only after what appears to have been a thorough consideration of the merits of Mr. Clapp’s applications for rezoning and for a conditional use permit, as well as of the various alternatives to granting those applications.1


While the Court of Appeals concluded that the decision at issue here by the Guilford County Board of Commissioners was not the result of “a valid exercise of the county’s legislative discretion,” we find just the opposite. The record in the case, in our view, while it reveals a unilateral promise from Mr. Clapp to the Board concerning his proposed use of the tracts, does not demonstrate the reciprocity featured in cases of illegal contract zoning. Moreover, the record also demonstrates, we think quite clearly, that the Board did not abandon its role as an independent decision-maker. Rather, after deliberating over information gathered from a large number of sources and after weighing both the desired rezoning and permit as well as various alternatives, the Board rendered a decision. In short, then, we find that the Board engaged here, not in illegal contract zoning, but in valid conditional use zoning. Accordingly, the Court of Appeals is reversed as to this issue as well.


 


IV.


 


In conclusion, this Court has carefully reviewed the record in its entirety and all of the contentions of the parties to this action. Consistent with the above, we hold as follows: (1) the practice of conditional use zoning, insofar as it is reasonable, neither arbitrary nor unduly discriminatory, and in the public interest and, subject to our discussions of spot zoning and contract zoning above, is an approved practice in this state; (2) the rezoning in this case, while clearly spot zoning, was not illegal spot zoning in that it was done pursuant to a clear showing of a reasonable basis; and (3) the rezoning in this case, because the Board neither entered into a bilateral agreement nor abandoned its place as the independent decision-maker, was not illegal contract zoning.


 


Accordingly, the decision of Court of Appeals is hereby reversed. The case is remanded to that court for further remand to the Superior Court, Guilford County, for reinstatement of the original judgment denying plaintiffs’ action for a declaratory judgment and affirming the zoning action of the Guilford County Board of Commissioners.


REVERSED.


 


MITCHELL, Justice, dissenting.


 


The zoning amendment and conditional use permit in this case amounted to written acceptance by Guilford County of Clapp’s offer—by written application—to use his property only in certain ways. Thus, for reasons fully discussed in the opinion of the Court of Appeals, 85 N.C.App. 211, 354 S.E.2d 309 (1987), Guilford County’s actions in the present case also amounted to illegal “contract zoning.” See Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972); Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).


I believe that Guilford County was without authority to engage in any conditional use zoning whatsoever in 1982, the time it did so in the present case. Effective 4 July 1985, the General Assembly amended N.C. G.S. § 153A-342 and N.C.G.S. § 160A-382 to allow cities and counties to establish conditional use districts. 1985 N.C.Sess. Laws ch. 607. Although the act was entitled an act to “make clear” the authority of local governments to establish such districts, I do not believe that the title controls in this case. Courts need refer to the title in construing an act only when the meaning of the act is in doubt.Finance Corp. v. Scheidt, Comr. of Motor Vehicles, 249 N.C. 334, 106 S.E.2d 555 (1959). Here, the 1985 act expressly authorizes units of local government to establish conditional use districts upon a petition by the owners of all the property to be included. Prior to that enactment, units of local government did not have such authority. See generally Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35; Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432. Therefore, the action of the General Assembly is fully consistent with the ordinary presumption that, by amending an existing statute, the legislature intended a departure from the old law. See Childers v. Parker’s, Inc., 274 N.C. 256, 162 S.E.2d 481 (1968).


The majority cites numerous scholarly authorities in support of its very thorough discussion of social policy arguments in favor of conditional use zoning. Boiled down to their essence, these arguments simply amount to an expression of the majority’s view that the authority to engage in conditional use zoning will give planners and local governing authorities greater flexibility and that such flexibility is very valuable. Beyond question, conditional use zoning authority will give them greater flexibility. Because I believe that the General Assembly had not authorized conditional use zoning at the time in question here, I find it unnecessary to consider whether conditional use zoning gives so much “flexibility” to local planners and governing bodies that they are left free to allow or disapprove specific uses of property in an unconstitutionally arbitrary and unpredictable manner.


For the foregoing reasons, I dissent.


WEBB, J., joins in this dissenting opinion.


 


Webb, Justice, dissenting.


 


I join in the dissent of Justice Mitchell and I add a few comments.


… .


I believe that prior to today the rule was that if a person requested a zoning change and submitted plans of the type building he would construct if the change were granted, and the zoning authority made the change based on the promise to construct such a building, that would be contract zoning. We have held contrary to this and in doing so have overruled Blades and Allred.


I vote to affirm the Court of Appeals.



MITCHELL, J., joins in this dissenting opinion.




FOOTNOTES

  1. The official minutes of the 20 December 1982 Board of Commissioners meeting reveal discussion of “attempts [that] had been made to resolve differences between the owner and his neighbors.” These attempts to resolve the problem short of rezoning the property apparently included the removal of one grain dryer from the property, the planting of trees along the property line, the placement of canvas covers over the grain bins, and discussions with the Environmental Protection Agency concerning other ways of reducing dust and noise.


3.8. Nonconforming Uses


City of Red Bank v. Phillips,

2007 WL 4460223 (Tenn. Ct. App. 2007).



Arvin H. Reingold, Chattanooga, Tennessee, for the appellant, Peter H. Phillips.


Arnold A. Stulce, Jr. and Angela C. Larkins, Chattanooga, Tennessee, for the appellee, City of Red Bank, Tennessee.


 


Charles D. Susano, Jr.




The City of Red Bank (“City”) filed this declaratory judgment action against Peter H. Phillips (“Owner”) alleging that his property at 217 W. Newberry Street was being utilized for multi-family purposes in violation of its single family zoning. Owner admitted to the use of the premises as a three-apartment rental property. He asserted, however, that the non-conforming use of the property was permitted as a “grandfathered” use. Following a bench trial, the court found in favor of the City. Owner appeals. We affirm.


 


I.


As early as 1951, the structure at 217 W. Newberry Street was used by the Roberts family as a multi-family dwelling. The Roberts family maintained a residence in the upstairs unit. Two downstairs units were rented out. Each unit had a separate kitchen and bath. This multi-family use continued until December 2002, when one of the tenants moved out. Shortly thereafter, Mrs. Mamie Roberts, the owner of the property, died, leaving only one tenant utilizing the premises. The final tenant departed in July 2003, and the property remained vacant until March 2004, when the house was sold by Mrs. Roberts’ estate to Wallis Properties, LLC. Approximately twenty months passed during which the property was completely vacant until one tenant moved in on April 1, 2005.


Prior to purchasing the property in July 2005, Owner and his mother, Audeline Phillips, inspected the premises. Mrs. Phillips, a realtor, testified at trial that she had located the property on the Multiple Listing Service. Mrs. Phillips noted that when she and her son toured the property, one unit was occupied. She recalled that all the units were furnished and the utilities were on. Over the objection of the City’s attorney, Mrs. Phillips discussed contacting a City employee who indicated to her that the non-conforming multi-family use was grandfathered in. She admitted, however, that she did not request written verification of this statement. Owner testified that he also had been advised by someone with the City that the non-conforming use was subject to grandfather protection. Additionally, Owner indicated that the property was advertised for sale during this time as a three-unit rental and was taxed by the county as commercial property.


After the City became aware of Owner’s non-conforming use, it filed a petition for declaratory judgment.1 The petition alleges, in part, as follows:


The property located at 217 W. Newberry Street, owned by the plaintiff has, for many years, been located in an R-1 Residential Zone….


The permitted uses section of the Red Bank Zoning Ordinance applicable to the R-1 Residential Zone does not permit multi-family residential uses, i.e. for more than one family to occupy a dwelling unit in that R-1 Zone. Accordingly, any use of the premises … as a multi-family dwelling is in violation of the Red Bank Zoning Ordinance and is a “non-conforming use” pursuant to said Ordinance.


The house and lot … is configured for three (3) separate apartments/dwelling units and the respondent has leased or is offering to lease three (3) separate dwelling units/apartments located in that structure. Utilization of the premises for multi-family occupancy and/or for more than one dwelling unit is in violation of the Red Bank Zoning Ordinance.


Upon information and belief, the premises … may have been, in times past, utilized as a multi-family dwelling. Use of the property as a multi-family dwelling in times past may or may not have been lawful pursuant to “the grandfather clause”….


The petitioner would show that the premises were owned or occupied until approximately December 15, 2002 when a former owner died. Since on or about June of 2003, the premises have been totally unoccupied until approximately April 1, 2005, a time period of 22 months, … On or about April 1, 2005, a single individual began, apparently, to live in and occupy one of the separate apartments….


The Red Bank Zoning Ordinance, subsection (205.01), provides, in pertinent part with respect to “non-conforming uses”, as follows:


The lawful use of a building existing at the time of the passage of this Ordinance shall not be affected by this Ordinance, although such use does not conform to the provisions of this Ordinance; and such use may be extended throughout the building … If such non-conforming building is removed or the non-conforming use of such building is discontinued for 100 consecutive days, … every future use of such premises shall be in conformity with the provisions of this Ordinance.


The Petitioner has refused demands and requests from the City of Red Bank not to utilize the property … except as a single family residence. During the course of a City Commission meeting on or about September 13, 2005, the respondent made clear his intention to remodel the separate apartment units and utilize the property as a multi-family dwelling and to not conform and adhere to the requirements of the R-1 Residential Zone regulations of the Red Bank Zoning Ordinance.


(Paragraph numbering omitted; emphasis in original).


In Owner’s answer, he stated that at the time he purchased the property “and at all times prior to said date the property was maintained and used as a three unit dwelling containing three separate and distinct apartment units,” the “apartment units were used as a three unit apartment structure prior to the enactment of the present R-1 Residential Zone designation and was and is at present a lawful use as a multi-family dwelling,” and “at the time of his purchase the property was used as a multi-family apartment structure.” Owner contended that his non-conforming use of the property should be permitted as a “grandfathered” use.


After the matter was heard on August 24, 2006, the trial court, sitting without a jury, determined that (1) the City’s complaint for declaratory relief and to enforce the zoning ordinance was sustained and (2) that Owner was enjoined from using the real estate in a manner not in conformity with the single-family provisions of the City’s zoning ordinance. Owner timely appealed.


 


II.


Owner raises the following issues:


1. The Chancellor’s ruling that the statute does not apply to protect the non-conforming use of the property was in error because, even without subsection (g) of Tenn.Code Ann. s 13-7-208, the statute still applies to protect non-conforming uses.


2. The Chancellor’s ruling that a “discontinuance” of the non-conforming use occurred under the ordinance is erroneous because there was no intent to abandon the premises and because the property was always held out as a multiple rental property.


 


III.


In a non-jury case, our review is de novo upon the record before us, accompanied by a presumption of correctness as to the trial court’s findings of fact, unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). We accord no such deference to the trial court’s conclusions of law. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).


The issues raised on this appeal involve the interpretation of state statutes and local ordinances. The primary rule of statutory construction is “to ascertain and give effect to the intention and purpose of the legislature.” LensCrafters, Inc. v. Sundquist, 33 S.W.3d 772, 777 (Tenn.2000); Carson Creek Vacation Resorts, Inc. v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.1993). To determine legislative intent, one must look to the natural and ordinary meaning of the language used in the statute itself. We must examine any provision within the context of the entire statute and in light of its over-arching purpose and the goals it serves. State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000). The statute should be read “without any forced or subtle construction which would extend or limit its meaning.” Nat’l Gas Distribs., Inc. v. State, 804 S.W.2d 66, 67 (Tenn.1991).


Courts are instructed to “give effect to every word, phrase, clause and sentence of the act in order to carry out the legislative intent.” Tidwell v. Collins, 522 S.W.2d 674, 677 (Tenn.1975). Courts must presume that the General Assembly selected these words deliberately, Tenn. Manufactured Hous. Ass’n v. Metro. Gov’t, 798 S.W.2d 254, 257 (Tenn.Ct.App.1990), and that the use of these words conveys some intent and carries meaning and purpose. Tenn. Growers, Inc. v. King, 682 S.W.2d 203, 205 (Tenn.1984). The same rules and principles are applied when construing zoning ordinances. Lions Head Homeowners’ Ass’n v. Metro. Bd. of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn.Ct.App.1997).


The applicable “grandfather” provision is codified at Tenn.Code Ann. s 13-7-208 (Supp.2006). The owner contends that the statute permits him to continue his non-conforming use. The statute provides, in relevant part, as follows:


In the event that a zoning change occurs in any land area where such land area was not previously covered by any zoning restrictions of any governmental agency of this state or its political subdivisions, or where such land area is covered by zoning restrictions of a governmental agency of this state or its political subdivisions, and such zoning restrictions differ from zoning restrictions imposed after the zoning change, then any industrial, commercial or business establishment in operation, permitted to operate under zoning regulations or exceptions thereto prior to the zoning change shall be allowed to continue in operation and be permitted; provided, that no change in the use of the land is undertaken by such industry or business.


Tenn.Code Ann. s 13-7-208(b)(1) (emphasis added). Subsection (g) of the statute adds the following:


The provisions of subsections (b)-(d) shall not apply if an industrial, commercial, or other business establishment ceases to operate for a period of thirty (30) continuous months and the industrial, commercial, or other business use of the property did not conform with the land use classification as denoted in the existing zoning regulations for the zoning district in which it is located. Anytime after the thirty (30) month cessation, any use proposed to be established on the site, including any existing or proposed on-site sign, must conform to the provisions of the existing zoning regulations….


Subsection (g) was added in 2004 and became effective on May 28, 2004. The trial court found, however, that this amendment to the statute cannot have retrospective effect to invalidate a lawful zoning ordinance. Further, the court determined that the property had already been vacant over 100 days prior to this subsection becoming effective. The trial court therefore concluded that “this case is controlled by the law in existence before the 2004 amendments to Tenn.Code Ann. s 13-7-208, which would be the Red Bank ordinance.” (Emphasis added).


The City’s ordinance at issue contains the following:


(A) Single-family dwelling.




2. SECTION 11-205.


Non-conforming Uses:


The lawful use of a building existing at the time of the passage of this Ordinance shall not be affected by this Ordinance, although such use does not conform to the provisions of this Ordinance; and such use may be extended throughout the building…. If such non-conforming building is removed or the non-conforming use of such building is discontinued for 100 consecutive days, every future use of such premises shall be in conformity with the provisions of this Ordinance.


 


IV.


A.


The trial court determined that Tenn.Code Ann. s 13-7-208 and its subsections did not apply to supersede the ordinances relied upon by the City. As indicated above, the trial court specifically found that subsection (g), which introduces the discontinuance period of 30 months for non-conforming uses, was not in effect at the time the events at issue took place.


Owner argues that even without subsection (g), the trial court erred in assuming that Tenn.Code Ann. s 13-7-208 no longer afforded any protection to the non-conforming use. He asserts that the statute, without subsection (g), was in effect at all times pertinent to this litigation. Thus, Owner contends that while subsection (g) may not apply to the case at hand, the rest of the statute, including subsection (b)(1), is applicable. If subsection (g) is applicable, Owner contends that the property was not completely unoccupied for thirty months or longer, as required by law. Tenn.Code Ann. s 13-7-208(g). Therefore, Owner argues that the trial court committed reversible error in the manner in which it applied the City’s ordinance.


In Bramblett v. Coffee County Planning Comm’n, No. M2005-01517-COA-R3-CV, 2007 WL 187894, at * 9 (Tenn. Ct.App. M.S., filed January 24, 2007), a panel of this court indicated as follows:


By its plain language, the statute [Tenn.Code Ann. s 13-7-208] protects only “industrial, commercial or business establishment[s].” Tenn.Code Ann. s 13-7-208(b)(1); Custom Land Dev., Inc. v. Town of Coopertown, 168 S.W.3d 764, 775 (Tenn.Ct.App .2004) (noting that purpose of statute was “to protect ongoing business operations”). In zoning parlance, use of real property for human habitation is generally classified as “residential,” regardless of whether someone profits from it. Zoning laws typically employ terms such as “commercial,” “industrial,” and “business” in contradistinction to the term “residential.” 6 ZONING LAW AND PRACTICE s 35-2, at pp. 35-3 to 35-7; s 38-1, at pp. 38-1 to 38-2; s 39-1, at pp. 39-1 to 39-5; s 44-1, at p. 44-1. 3 AMERICAN LAW OF ZONING s 18.15, at 304. Tennessee’s zoning statutes are no exception.


(Capitalization in original; footnotes omitted).


Owner seeks to use the property in an indisputably residential manner. He desires to lease out the three units of the premises to individuals and families for human habitation. Tenn.Code Ann. s 13-7-208 confers no grandfathering protection for this use. Accordingly, only the City’s ordinance applies in this matter.


B.


The power of local governments to enact ordinances regulating the use of private property is derived from the state and is delegated to them by the legislature. Henry v. White, 250 S.W.2d 70, 71 (Tenn.1952); Anderson County v. Remote Landfill Servs., Inc., 833 S.W.2d 903, 909 (Tenn.Ct.App.1991). Local governments’ statutory power to employ zoning measures to control the use of land within their boundaries is firmly established. Draper v. Haynes, 567 S.W.2d 462, 465 (Tenn.1978). The City’s zoning ordinance, subsection 205.01, states, in part, that “[i]f such non-conforming building is removed or the non-conforming use of such building is discontinued for 100 consecutive days, every future use of such premises shall be in conformity with the provisions of this Ordinance.”


In interpreting a zoning ordinance, a court must strictly construe the relevant ordinance in favor of the property owner. Boles v. City of Chattanooga, 892 S.W.2d 416, 420 (Tenn.Ct.App.1994) (citing State ex rel. Wright v. City of Oak Hill, 321 S.W.2d 557, 559 (Tenn.1959)). A zoning ordinance is in derogation of the common law because it operates to deprive an owner of a use of land which might otherwise be lawful. Oak Hill, 321 S.W.2d at 559.


Under the facts of this case, Owner contends that the trial court erred in ruling that a lack of tenants constituted a discontinuance of the non-conforming use for 100 consecutive days. He quotes from 83 Am.Jur.2d Zoning and Planning s 619 at 534-35 (2003) as follows:


Discontinuance of a nonconforming use may sometimes be caused by the loss of a tenant, but this generally does not result in an abandonment, so long as the owner makes a diligent effort to locate a new tenant.


(Citations omitted). Owner further asserts that a lack of multiple lodgers has been held not to constitute discontinuance where the apartments were still available for rent. He cites us to James L. Isham, Annotation, Zoning: Occupation Of Less Than All Dwelling Units As Discontinuance Or Abandonment Of Multifamily Dwelling Nonconforming Use, 40 A.L.R. 4th 1012 (1985).


Relying on Boles, Owner asserts that the voluntary and affirmative actions of the prior owners did not manifest an intention to abandon the non-conforming multi-family use of the property. In Boles, an injunction had been issued which required the closure of an adult-oriented establishment which wanted to lease its premises to another lessee of adult products. More than 100 days had passed since the premises were used for an adult-oriented establishment, however, the court found that the failure to maintain its non-conforming use was due to the injunction and not due to the intent of the owner. This court held as follows:


The word “discontinued” as used in a zoning ordinance is generally construed to be synonymous with the term “abandoned.” The meaning of the word “abandoned,” in the zoning context, generally includes an intention by the landowner to abandon as well as an overt act of abandonment.


Boles, 892 S.W.2d at 420 (citing Douglas Hale Gross, Annotation, Zoning: Right to Resume Nonconforming Use of Premises After Involuntary Break in the Continuity of Nonconforming Use Caused by Governmental Activity, 56 A.L.R.3d 138, 151, 152 (1974)). The Boles court noted that


the term “discontinued” or words of similar import, as utilized in zoning ordinances with specific time limitations, should be construed to include an element of intent, combined with some act-or failure to act-indicative of abandonment….


Id., 892 S.W.2d at 422. This court added that such an ordinance will not apply “if the discontinuance of the non-conforming use is purely involuntary in nature.” Id.


Owner further argues that there was no consolidation of any of the units into one unit and that repairs and renovations were undertaken without any intent to combine units. The separate kitchen and bath fixtures and appliances were maintained, ready for new tenants. According to Owner, except for the time when they were being renovated, the units were always available to let. He also contends that electricity was supplied to all the units throughout the relevant period and asserts that “[y]ou don’t keep power on in some of your rental property … if you are abandoning that use.”


As argued by the City, the circumstances in Toles v. City of Dyersburg, 39 S.W.3d 138 (Tenn.Ct.App.2000), are very similar to those in the present matter, namely that the discontinuance of the non-conforming use was due to the owners voluntarily not using the property for the non-conforming use and therefore the “grandfather” protection was lost. In Toles, this court indicated that


[w]e read Boles to support the proposition that “intent” is only important where some force outside the control of the property owner prevents the continued use of the land in a particular manner.


39 S.W.3d at 141. Unlike the injunction in Boles, nothing prevented the prior owners of this property from renting out the units. As found by the trial court, there was no extrinsic force which prevented the leasing of the property. There was nothing involuntary about the cessation of the non-conforming use.


The trial court properly determined that “the protection of the grandfather clause had been lost long before Owner bought the property on July 21, 2005” and “the lack of any tenant for approximately twenty (20) months resulted in the loss of the grandfather clause’s protection for 217 W. Newberry Street.” The failure of the Roberts’ Estate and/or Wallis Properties, LLC to lease the property as a triplex, or rent to at least two tenants, was a discontinuance of the non-conforming use.


 


V.


We do not find that the evidence preponderates against the trial court’s resolution of this matter. Accordingly, the judgment of the trial court is affirmed. This case is remanded to the trial court for enforcement of the trial court’s judgment and for collection of costs assessed below, all pursuant to applicable law. Costs on appeal are taxed to the appellant, Peter H. Phillips.




FOOTNOTES

  1. The City sought the imposition of a civil penalty of up to $50 per day against Owner. Because the provisions of the City’s ordinances introduced at trial did not contain a civil penalty provision, the trial court denied this relief.


Suffolk Asphalt Supply v. Board of Trustees of Village of Westhampton Beach,

59 A.D.3d 429 (N.Y. App. Div. 2009)


Mastro, J.P., Florio, Covello and Belen, JJ., concur.


 


The plaintiff owns real property within the Village of Westhampton Beach that has been improved with an asphalt plant since 1945. In 1985 the Board of Trustees of the Village of Westhampton Beach (hereinafter the Board of Trustees) amended the Village’s zoning code so that the use of the property as an asphalt plant became nonconforming. The plaintiff acquired the property, including the asphalt plant, in 1994.


In June 2000 the Board of Trustees adopted Local Law No. 10 (2000) of Village of Westhampton Beach (hereinafter the local law), which provided that the right to operate and maintain the nonconforming asphalt plant was to terminate within one year unless the plaintiff applied to the Zoning Board of Appeals of the Village of Westhampton Beach (hereinafter the ZBA) for an extension of the termination date, not to exceed five years from the date that the local law was adopted. The plaintiff applied to the ZBA for such an extension almost immediately after the enactment of the local law, and, in a determination dated May 19, 2005, the ZBA granted the maximum extension permitted by the local law and directed the plaintiff to terminate its asphalt operation effective July 2, 2005.


Meanwhile, the plaintiff commenced this action, inter alia, for a judgment declaring that the local law is invalid and unconstitutional since, among other things, the amortization period provided in the statute is unreasonably short. After the ZBA made its determination, the plaintiff moved for summary judgment declaring that the local law is invalid and unconstitutional.


“The validity of an amortization period depends on its reasonableness. We have avoided any fixed formula for determining what constitutes a reasonable period. Instead, we have held that an amortization period is presumed valid, and the owner must carry the heavy burden of overcoming that presumption by demonstrating that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power” (Village of Valatie v Smith, 83 NY2d 396, 400-401 [1994] [citations omitted]).


“Whether an amortization period is reasonable is a question which must be answered in light of the facts of each particular case” (Modjeska Sign Studios v Berle, 43 NY2d 468, 479-480 [1977], appeal dismissed 439 US 809 [1978]). “Reasonableness is determined by examining all the facts, including the length of the amortization period in relation to the investment and the nature of the use. The period of amortization will normally increase as the amount invested increases or if the amortization applies to a structure rather than a use” (Matter of Town of Islip v Caviglia, 73 NY2d 544, 561 [1989]). Factors to be considered in determining reasonableness include “the nature of the business of the property owner, the improvements erected on the land, the character of the neighborhood, and the detriment caused the property owner” (Matter of Harbison v City of Buffalo, 4 NY2d 553, 562-563 [1958]).


“Typically, the period of time allowed has been measured for reasonableness by considering whether the owners had adequate time to recoup their investment in the use” (Village of Valatie v Smith, 83 NY2d at 401). “While an owner need not be given that period of time necessary to permit him to recoup his investment entirely, the amortization period should not be so short as to result in a substantial loss of his investment” (Modjeska Sign Studios v Berle, 43 NY2d at 480 [citation omitted]).


Inasmuch as the plaintiff failed to submit any evidence as to the amount that it actually invested in the business, there remains a question of fact regarding whether the amortization period provided in the local law was reasonable and thus constitutional as applied to the plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Chekenian v Town Bd. of Town of Smithtown, 202 AD2d 542, 543 [1994]). With respect to the plaintiff’s contention that the brevity of the amortization period rendered the local law unconstitutional on its face, “a litigant cannot sustain a facial challenge to a law when that law is constitutional in its application to that litigant” (Village of Valatie v Smith, 83 NY2d at 403). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment.


Trip Associates v. Mayor and City Council of Baltimore,

898 A.2d 449 (2006)



John A. Austin, Towson, for Petitioners.


Sandra R. Gutman, Chief Sol. (Thurman W. Zollicoffer, Jr., City Sol., on brief), Baltimore, for Respondent.


 


Bell, Chief Judge.


 


The question this case presents is whether the Board of Municipal and Zoning Appeals (“the Board”) erred when it restricted the number of days per week the appellants could operate a valid nonconforming use. The appellants’ property, located in the B-5-1 Zoning District in Baltimore City, is being used for the operation of “Club Choices,” a nightclub and after-hours establishment that sometimes features adult entertainment. The Club is owned by the appellant, Anthony Dwight Triplin (“Triplin”), who also is the owner of Triplin Associates, Inc. (“Trip”), the other appellant.


Triplin purchased 1815-17 North Charles Street, the property at issue, in 1983. Prior to his purchase, the property had been a nightclub featuring adult entertainment, including male and female exotic dancing. The adult entertainment had been presented up to five nights a week since 1979. When Triplin purchased the property, the applicable zoning ordinance did not prohibit the use of the property as an adult entertainment facility. Nevertheless, Triplin reduced the number of nights of nude or exotic dancing from five to two nights per week, featuring music and comedy on the other nights. The Board approved his use of the premise as an “after hours establishment” in 1992. With this approval, the adult entertainment was presented after hours, exclusively.


On December 15, 1994, Ordinance No. 443 was enacted. That ordinance, codified at Baltimore City Code, Art. 30, § 8.0-61, regulated adult entertainment businesses, “where persons appear in a state of total or partial nudity.” It also provided that “[a]ny adult entertainment business existing on September 10, 1993 is considered a nonconforming use, subject to all Class III regulations.”1 Baltimore City Zoning Code § 13-609. After this Ordinance was passed, Triplin continued to use the facility as a club that provided adult entertainment after hours. That use was unchallenged until April 14, 2000, when a Baltimore City zoning inspector issued a “Code Violation Notice and Order” to the Club. The violation notice charged:


“ZONING VIOLATION


“1. Using portion of premises for adult entertainment without first obtaining proper Adult Entertainment Ordinance and Adult Entertainment License. DISCONTINUE SAID USE. REMOVE ALL STOCK, MATERIAL, EQUIPMENT, AND ANY ADVERTISING SIGNS ASSOCIATED WITH SAID USE. OBTAIN CERTIFICATE OF OCCUPANCY BEFORE RE-ESTABLISHING ANY USE.”


Triplin appealed to the Board. On appeal, Triplin testified that Club Choices featured exotic dancing and adult entertainment two times a week, Wednesdays and Fridays, for two hours each night. That testimony was confirmed by employees, who offered further that such dancing with partial nudity has been presented two nights per week since 1983.


The Board ruled:


“1 … . [A]dult entertainment may be continued two nights during the week. “The Board finds that a non-conforming use of the premises for adult entertainment had been established prior to Ordinance 443 (adult entertainment business approved December 15, 1994) and may be continued under Subsection 13-402 of the Zoning Code. The Board finds that with the above condition that the request would not be detrimental to or endanger the public health, security, general welfare, or morals or be injurious to the use and enjoyment of other property in the immediate vicinity, nor substantially diminish and impair property values in the neighborhood. Further, and as agreed by the appellant that this is specifically for the appellant Mr. Triplin, the owner and operator of the subject site and a copy of the resolution/decision is to be recorded in the land records of Baltimore City and the appellant is to provide to the Board a court certified copy to be placed in the file … as part of the record. The purpose of the recording requirement is to give the Charles North Community Association legal standing to enjoin any uses as adult entertainment to a subsequent purchaser, owner, lessee or operator….


“In accordance with the above facts and findings and subject to the aforementioned condition, (adult entertainment two nights a week only) the Board approves the application.”


Board of Municipal and Zoning Appeals, Appeal No. 327-00X, October 12, 2000. Thus, the Board, despite finding that Club Choices was a valid nonconforming use, limited that use, based on the testimony, to two nights per week.


Triplin petitioned the Circuit Court for Baltimore City for judicial review of the Board’s decision. That court affirmed the Board’s decision … .


 


A.


 


Title 13 of the Baltimore City Zoning Code establishes the zoning districts in Baltimore, and “provides for the regulation of nonconforming uses and noncomplying structures existing in the various districts.” Baltimore City Zoning Code § 13-102. Under the Baltimore City Zoning Code, a “nonconforming use” is defined as “any lawfully existing use of a structure or of land that does not conform to the applicable use regulations of the district in which it is located.” Baltimore City Zoning Code § 13-101(c). A valid and lawful nonconforming use is established if a property owner can demonstrate that before, and at the time of, the adoption of a new zoning ordinance, the property was being used in a then-lawful manner for a use that, by later legislation, became non-permitted.


As the Court of Special Appeals recognized, nonconforming uses are not favored. County Council v. Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 (“These local ordinances must be strictly construed in order to effectuate the purpose of eliminating nonconforming uses.”); Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 308, 129 A.2d 363, 365 (1957) (“Indeed, there is general agreement that the fundamental problem facing zoning is the inability to eliminate the nonconforming use”); Colati v. Jirout, 186 Md. 652, 657, 47 A.2d 613, 615 (1946) (noting that the spirit of the Baltimore City Zoning Ordinance is against the extension of nonconforming uses). Indeed, in Grant, this Court stated, “[T]he earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned.” 212 Md. at 307, 129 A.2d at 365. The context for this conclusion was the historical development of the nonconforming use, which the Court also detailed:


“Nonconforming uses have been a problem since the inception of zoning. Originally they were not regarded as serious handicaps to its effective operation; it was felt they would be few and likely to be eliminated by the passage of time and restrictions on their expansion. For these reasons and because it was thought that to require immediate cessation would be harsh and unreasonable, a deprivation of rights in property out of proportion to the public benefits to be obtained and, so, unconstitutional, and finally a red flag to property owners at a time when strong opposition might have jeopardized the chance of any zoning, most, if not all, zoning ordinances provided that lawful uses existing on the effective date of the law could continue although such uses could not thereafter be begun.”


Id.


Nevertheless, a “nonconforming use is a vested right entitled to constitutional protection.” Amereihn v. Kotras, 194 Md. 591, 601, 71 A.2d 865, 869 (1950). The Court in Amereihn made that point forcefully. There, after the area in which a light manufacturing plant was located was zoned as residential, the neighbors brought a complaint, praying that the new owners of the plant be restrained from using the property for manufacturing purposes. This Court, in ruling against the neighbors, pointed out:


“If a property is used for a factory, and thereafter the neighborhood in which it is located is zoned residential, if such regulations applied to the factory it would cease to exist, and the zoning regulation would have the effect of confiscating such property and destroying a vested right therein of the owner. Manifestly this cannot be done, because it would amount to a confiscation of the property.”


194 Md. at 601, 71 A.2d at 869 (citations omitted). See also Board of Zoning Appeals of Howard County v. Meyer, 207 Md. 389, 114 A.2d 626 (1955), in which the Court of Appeals held that an owner of a truck manufacturing plant on land that had been rezoned as residential had a valid nonconforming use, observing, “[t]he law is established that the zoning of an area as residential cannot apply to a previously established factory in that area, which is entitled under the circumstances to constitutional protection.” 207 Md. at 394, 114 A.2d at 628.


A nonconforming use may be reduced to conformance or eliminated in two ways: by “amortization,” that is, requiring its termination over a reasonable period of time, and by “abandonment,” i.e. non-use for a specific of time. Thus, in Grant, the Court held that an amortization period of five years to remove nonconforming billboards was valid, and that a five-year period was not an arbitrary time period. 212 Md. at 316, 129 A.2d at 370.


The Baltimore City ordinance takes the “abandonment” approach. Section 13-406, as we have seen, prohibits the expansion of any nonconforming use, except as authorized by the Board. Under § 13-407, “Discontinuance or abandonment,” the failure actively and continuously to operate the nonconforming use results in its abandonment. That section provides:


“(a) Discontinuance or abandonment


“(1) Except as specified in this section, whenever the active and continuous operation of any Class III nonconforming use, or any part of that use, has been discontinued for 12 consecutive months:


“(I) the discontinuance constitutes an abandonment of the discontinued nonconforming use, or discontinued part of that use, regardless of any reservation of an intent to resume active operations or otherwise not abandon the use; and


“(ii) the discontinued nonconforming use, or discontinued part of that use:


“(A) may not be reestablished; and


“(B) any subsequent use of any part of the land or structure previously used for the discontinued use, or discontinued part of that use, must conform to the regulations of the district in which the land or structure is located.


“(2) In accordance with Subtitle 7 {“Modifications and Continuances by Board”} of this title, the Board may extend the time limit for discontinuance for 1 or more additional periods. In no case, however, may the total of the additional time exceed 12 months.”


Abandonment, as the foregoing ordinance confirms, focuses not on the owner’s intent, but rather, on whether the owner failed to use the property as a nonconforming use in the time period specified in the zoning ordinance. See Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 581, 709 A.2d 749, 759 (1998) (“There is no hard and fast rule in nonconforming use abandonments that intent to abandon must be actually shown when the zoning ordinance or statute utilizes the word ‘abandonment’“).


On the other hand, the abandonment or discontinuance must be active and actual. In Mayor and City Council of Baltimore v. Dembo, Inc., 123 Md.App. 527, 719 A.2d 1007 (1998), the Court of Special Appeals discussed whether the failure of a property owner to apply for a license to operate an adult entertainment business after the passage of an ordinance, in that case, Ordinance 443, the same one as involved in this case, which prohibited such business in the district in which it was located, constituted “abandonment” of the nonconforming use, notwithstanding that he had actually used the property in that nonconforming manner throughout the subject period. There, Donald Dembo owned an adult entertainment establishment called the “Gentleman’s Gold Club” (“the Gold Club”) which, like Triplin’s club, was located in a zoning district in which it was not permitted. Like Club Choices, however, the Gold Club’s use was a valid nonconforming use, having pre-existed the ordinance that excluded that use. The city argued that, by using the property without the required license for two years, Dembo had essentially terminated his once lawful nonconforming use. Addressing for the first time whether or not a failure to apply for a license constituted an abandonment of a lawful nonconforming use, the Court of Special Appeals, after analyzing how other jurisdictions approached the issue, concluded:


“We shall follow the majority of jurisdictions and apply the rule that a valid nonconforming use will not be forfeited by the failure of the business owner to secure a license to operate his business. We consider that this rule accords reasonable protection to the property right that has been long recognized under Maryland law as a vested right subject to constitutional protection.”


123 Md.App. at 541, 719 A.2d at 1015. Furthermore, the Court of Special Appeals held that, even without the license, “Dembo retain[ed] its vested nonconforming use status to operate a business with adult entertainment. ..”.


There is no issue with regard to Club Choices’ status; it is a valid Class III nonconforming use property under § 13-609 of the Zoning Code. It is an adult-entertainment business, presently existing, that was also operating as such on September 10, 1993, as § 13-609 specifies. As to that status, there is no contention that Triplin has abandoned or discontinued it, at least in whole. The issue is, as the Court of Special Appeals has framed it, whether using the valid nonconforming use more frequently than it was being used when the use became nonconforming–presenting adult entertainment more than two nights per week–would be a prohibited expansion of the use or a mere intensification of the use.


 


B.


 


Despite Maryland’s well settled policy against nonconforming use and the Baltimore City Zoning Code’s explicit prohibition against expansion of those uses, Baltimore City Zoning Code § 13-406, Maryland recognizes, and our cases have held, that an intensification of a nonconforming use is permissible, so long as the nature and character of that use is unchanged and is substantially the same.


In Green, supra, 192 Md. 52, 63 A.2d 326, citizens of Baltimore City sought to enjoin the Department of Recreation and Parks of Baltimore City and the Baltimore Baseball and Exhibition Company from allowing professional baseball to be played at Baltimore Stadium, and further to enjoin the use of the loud speaker system, the flood lights, and the parking facilities nearby. Baltimore Stadium was constructed prior to 1931, when the district in which it was located was rezoned residential, 192 Md. at 63, 63 A.2d at 330, after which it was used infrequently for football games, track meets and civic events. It was used more frequently after 1939, when lights were installed, a speaker system having been installed earlier. 192 Md. at 57, 63 A.2d at 327-328. That increased use consisted mainly of football games and other events, not baseball games. In 1944, however, a fire destroyed the baseball stadium, then known as Oriole Park. This resulted in more baseball games being played at Baltimore Stadium. 192 Md. at 57-58, 63 A.2d at 328.


When that occurred, neighboring citizens contended that the use of the Stadium for baseball games for a considerable portion of the year was an enlargement of the valid nonconforming use of the Stadium and, therefore, contravened the zoning ordinance. 192 Md. at 63, 63 A.2d at 330. They pointed out that, when the zoning ordinance was enacted, the nonconforming use consisted of professional football games and the infrequent, at best, baseball game. This Court disagreed. Id. Acknowledging that the “spirit of the zoning ordinance is against the extension of nonconforming uses and that such uses should not be perpetuated any longer than necessary,” we observed:


“We have never held that the more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenable. Nor does it seem to us that a different use is made of the Stadium when the players of games there are paid. The use of the property remains the same.”


192 Md. at 63, 63 A.2d at 330. This Court concluded, “we find that the Department had and has power to lease the Stadium… for the purposes of professional baseball, and that such use is not an extension of the non-conforming use heretofore existing….” 192 Md. at 63-64, 63 A.2d at 330-331.


In Nyburg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954), this Court addressed the question of whether increased usage of nonconforming property constituted an unlawful extension of that use or was simply an intensification of the use. At issue was property on which a garage had been built in 1920, on which cars of nearby residents were parked. In front of the garage was an open area, “some 164 feet by 129 feet.” 205 Md. at 153, 106 A.2d at 484. In 1931, after the neighborhood where the garage was located had been classified as a residential use district, the garage operation continued without change. 205 Md. at 153, 106 A.2d at 484. In 1950, the owners of the garage contracted with a new car company to use the open space for the storage of new cars. 205 Md. at 154, 106 A.2d at 484. In 1953, a complaint was made by neighbors that the property was being used in violation of the zoning ordinance. 205 Md. at 154, 106 A.2d at 484. The Board of Municipal and Zoning Appeals held that, while the garage owner had a valid nonconforming use for parking, storage and washing motor vehicles and the sale of gasoline and accessories, that use was restricted by the nature and extent of the use to which the open area in front of the garage was put in 1931, the result of which was that no more than ten vehicles could be stored on the lot at any one time. 205 Md. at 154, 106 A.2d at 484-485. The Baltimore City Court reversed, striking down the restriction “since it amounted to an attempted prohibition of a legally valid intensification of use.” 205 Md. at 156, 106 A.2d at 485. On appeal, this Court rejected the appellant’s argument that, without the restriction the zoning board placed on the number of cars that could be stored in the open space, there would be a prohibited extension of a non-conforming use. 205 Md. at 161, 106 A.2d at 488. Explaining our decision, this Court held:


“[H]ere there is not an extension but merely an intensification of a long continued non-conforming use. In Green v. Garrett, … [t]his Court held that … ‘more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenable.’ … It was held that although there was no doubt that the games played at the stadium had produced a use greatly in excess of the former use, that intensification was not an extension within the meaning of the Zoning Ordinance.


“We think that the present case is controlled by the principle of the Green case and that the court below was right in striking down the restriction which the Board had placed on the use of the open space in front of the garage, and in affirming otherwise the findings of the Board.”


205 Md. at 161-162, 106 A.2d at 488, citing and quoting Green, 192 Md. at 63, 63 A.2d at 330.


Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967), is similarly instructive. There, a decree by the Circuit Court for Anne Arundel County, in addition to restrictions related to and involving expansions of physical facilities, including the extension of a pier, occurring after the zoning which prohibited any non-conforming use to those uses in effect prior to the date of its adoption, 245 Md. at 133, 225 A.2d at 279, restricted the nonconforming use of marina property to the rental of seven rowboats. The waterfront property had been used by its previous owners as a boat rental property dating from 1946, when a pier was attached to the land, and continuing after 1949, when a comprehensive zoning ordinance rezoned the land and placed the property into an agricultural classification.


On appeal, this Court reaffirmed the principle that although the purpose of zoning regulations is to restrict rather than to expand nonconforming uses, Phillips v. Zoning Commissioner, 225 Md. 102, 169 A.2d 410 (1961), an intensification of a non-conforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used. 245 Md. at 137, 225 A.2d at 281, see also Nyburg, 205 Md. 150, 106 A.2d 483. While physical expansions like constructing a new pier and use of the land for services other than what was already present prior to the effective date of the ordinance were held to be invalid extensions of the nonconforming use, 245 Md. at 138, 225 A.2d at 282, this Court decided that “[a]ny increase in the number of rowboats rented would be an intensification of [the] non-conforming use and would not be an extension.” 245 Md. at 138, 225 A.2d at 282. The intensification of a non-conforming use, in short, is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used. 245 Md. at 137, 225 A.2d at 281.


To like effect is Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A.2d 731 (1967). In that case, the issue involved whether the expansion of a high rise junkyard owned by the appellant was an extension of a nonconforming use or an intensification of a nonconforming use. The junkyard, operating since 1939, was surrounded by property that was later rezoned for residential use. The junkyard was recognized as a nonconforming use; however, the zoning ordinance provided that “all presently existing junkyards must be screened within a year by the erection of a fence or wall or by the planting of trees, shrubbery or other planting.” 246 Md. at 207-208, 227 A.2d at 732. The appellant had stacked scrap metal higher than it was able to be concealed. The zoning board alleged, on that basis, that the owner had unlawfully expanded the nonconforming use, and sought an order permanently enjoining the extension of the junkyard beyond the area occupied at the time the zoning ordinance was adopted. 246 Md. at 208, 227 A.2d at 732.


The chancellors who heard the cases2 found that the stacking of junk was not an extension of the nonconforming use, in violation of the zoning ordinance; rather, it was, they concluded, an intensification of that use. 246 Md. at 209, 227 A.2d at 733. This Court agreed:


“The zoning ordinance … provides that a nonconforming use shall not be extended, but that does not mean that the vested nonconforming use of the junkyard owner could not be lawfully intensified. The chancellors held that the increase in the quantity and height of the stored scrap metal was an intensification and not an extension under the law. We agree … . While a nonconforming use should not be extended or perpetrated longer than necessary, the more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore was held to be an intensification and not an extension.”


246 Md. at 211, 227 A.2d at 734, citing Green, 192 Md. 52, 63 A.2d 326; Nyburg, 205 Md. 150, 106 A.2d 483. Jahnigen, 245 Md. 130, 225 A.2d 277. See also County Commissioners of Carroll County v. Zent, 86 Md.App. 745, 587 A.2d 1205 (1991), in which the Court of Special Appeals, addressing a parcel of land in Carroll County, Maryland, that was zoned for agricultural use in 1965, but had had a milk delivery trucking business on its land since 1923, opined that an increase in the number of decommissioned delivery trucks stored for parts on property owned by the business would be an intensification of the nonconforming use for which it was using the property, not an illegal extension. 86 Md.App. at 757, 587 A.2d at 1211.


In these cases, we have consistently held that merely increasing the frequency of a nonconforming use did not constitute an unlawful extension; rather, it was but an intensification of the use. The Court of Special Appeals distinguishes these cases on the basis that none of them, with the exception of Green, dealt with the situation presented in this case:


“But none of these cases involved an expansion of the temporal limits of operation. Each concerned, at most, increasing the amount of business performed within an existing temporal framework-in other words, intensifying the use of the premises during existing business hours.”


151 Md.App. at 179-80, 824 A.2d at 984-85.


To be sure, as the intermediate appellate court noted, the cases, with the exception of Green, do not address the situation sub judice. On the other hand, Green did not draw, expressly or otherwise, the distinction that the Court of Special Appeals draws; we did not, in Green, say, or signal in any way, that any increase in the nonconforming use, except temporally, by adding days or hours of operation, would be an intensification, but that the temporal modification would be an unlawful expansion of the use. We do not read the cases so narrowly. In each of the cases, the frequency of the use of the subject property in the nonconforming manner was increased, often significantly so, without regard to the hours of operation. Their focus was, as it should be, on the actual use made of the property, not the times when that use occurs.


If the intermediate appellate court is correct, Green is no longer good law and our definition of “intensification” is misleading, if not largely meaningless. Indeed, the concept of intensification would have no meaning at all in the nightclub context, or in any other where there are discrete hours of operation, such as retail. In Feldstein, we distinguished an “intensification” of a nonconforming use from an “extension” of such use, noting that the former is “the more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore.” 246 Md. at 211, 227 A.2d at 734. Increasing the number of nights on which adult entertainment is presented at Club Choices from two to five, for example, would fit within the definition of “intensification”–it would be a “more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore.” In fact, that was the rationale for Green; going from infrequent baseball games to their presentation for much of the year seems a similar, if not identical, scenario.


As we have seen, the Court of Special Appeals views Green as being “of little precedential value,” 151 Md.App. at 180, 824 A.2d at 985, if not inapplicable. We have not overruled Green, we do not now do so. Moreover, we are not at all sure of the accuracy of the intermediate appellate court’s observation with respect to the timing of the Green decision, “before the zoning administrative process was created,” 151 Md.App. at 180, 824 A.2d at 983, with the result that “the deference owed an administrative body’s interpretation of its governing statute and the substantial evidence rule played no role in the Court’s decision.” Id. The zoning ordinance was enacted in 1931 and we can assume that its implementation was entrusted to an administrative agency. The case did not proceed through the administrative process, however. It was an action for injunctive and declaratory relief. Therefore, the administrative agency was not called upon to, and, thus, did not opine on the subject. Had it done so, the deference due it would not have carried the day. The Court, in any event, would have been required to decide whether that conclusion of law, to which deference was due, was correct.


Nor are we persuaded by the out-of-state cases upon which the appellees and the Court of Special Appeals relied. Garb-Ko v. Carrollton Township, 86 Mich. App. 350, 272 N.W.2d 654 supports the proposition for which it is offered, the Court of Appeals of Michigan having answered in the affirmative the question, “whether the extension of hours of a grocery store operating as a nonconforming use constitutes an expansion of the nonconforming use which can be lawfully restricted by the defendant township.” 86 Mich.App. at 352-353, 272 N.W.2d at 655. It did so, however, on the basis of the following Michigan policies: “that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance” and that “[t]he policy of the law is against the extension or enlargement of nonconforming uses, and zoning regulations should be strictly construed with respect to expansion.” Id. at 353, 272 N.W.2d at 655, quoting Norton Shores v. Carr, 81 Mich.App. 715, 720, 265 N.W.2d 802, 805 (1978); Dearden v. Detroit, 70 Mich.App. 163, 169, 245 N.W.2d 700, 703 (1976); White Lake Township v. Lustig, 10 Mich.App. 665, 674, 160 N.W.2d 353, 357 (1968). These policies would prohibit the distinction between intensification and expansion that is, and long has been, recognized in Maryland.


em>Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals, 547 N.E.2d 877 (Ind. Ct.App.1989) also is distinguishable from the case sub judice. Time-Low purchased a plot of land on which there was a filling station and then applied for a building permit to convert the filling station to a convenience store and gas station. The LaPorte Board of Zoning Appeals issued the building permit, but limited the hours of operation of the convenience store. As relevant, LaPorte’s Zoning Ordinance Code provided:


18.57.030 Change to other nonconforming use.


“A. A nonconforming use may not be changed to any other nonconforming use without the permission of the board of zoning appeals regardless of whether or not structural changes are made or required to be made in the building or premises.


“B. A nonconforming use changed to a conforming use may not thereafter be changed back to any nonconforming use without the permission of the board of zoning appeals. (Prior code § 29-96)


* * * * * *


18.57.060 Remodeling, addition to or alteration of existing use.


“A lawful nonconforming use existing at the time of the passage of the ordinance codified in this title shall not be remodeled, added to or structurally altered without the permission of the board of zoning appeals. (Prior code § 29-99)”


The Court of Appeals of Indiana, Third District, agreed that the change in nonconforming use that the applicant sought required approval by the Board, and, thus, was subject to Board regulation. 547 N.E.2d at 879. In support of its conclusion, the court identified a list of physical changes, which it characterized as extensive and which it determined required Board approval. 547 N.E.2d at 879. Accordingly, it was in this context that the court stated:


“The Board of Zoning Appeals …. may use its judgment and discretion in making such modification of the [building commissioner’s] order and attach such conditions and restrictions to the granting of a variance as in its opinion should be made, so that the spirit of the ordinance shall be observed and substantial justice done.”


547 N.E.2d at 880, citing City of E. Chicago v. Sinclair Ref. Co., 232 Ind. 295, 313-314, 111 N.E.2d 459, 467 (1953).


The other two cases, Incorporated Village v. Hillside Ave. Restaurant Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (1977), and Cornell Uniforms, Inc. v. Township of Abington, 8 Pa.Cmwlth. 317, 301 A.2d 113, 116 (1973), are both distinguishable and unpersuasive. Cornell Uniforms, like Time-Low, involved temporal restrictions imposed in the wake of the substantial physical changes to the property that the applicant sought when changing its nonconforming use. In Incorporated Village, while the court upheld restrictions placed on the operating hours of an adult entertainment club, its rationale for doing so is, to say the least, sparse; the court provides little in the way of reasoning as to why it possessed the authority to temporally restrict the hours of the nonconforming use.


[Reversed.]




FOOTNOTES

  1. “Class III” is defined in the Baltimore City Zoning Code, § 13-401. In describing what is regulated by the subtitle, it states:


    Ӥ 13-401. Scope of subtitle.


    “This subtitle applies to Class III nonconforming uses, which comprise:


    “(1) any nonconforming use of all or part of a structure that was designated and erected primarily for a use that is no longer allowed in the district in which it was located;


    “(2) any nonconforming use of the lot on which that structure is located; and


    “(3) any nonconforming use of land or structures not regulated as Class I or Class II.”


  2. Two judges, Harold E. Naughton and James S. Getty, sat for this zoning case in the Circuit Court for Allegany County.


3.9. Vested Rights


Metro. Dev. Comm’n v. Pinnacle Media,

836 N.E.2d 422 (Ind. 2005)



Anthony W. Overholt, Jeffrey S. McQuary, Office of Corporation Counsel, Indianapolis, for Appellant.


Alan S. Townsend, George T. Patton, Jr., Paul D. Vink, Indianapolis, for Appellee.


 


Sullivan, Justice.


 


Pinnacle Media, LLC, seeks a declaration that a change in the zoning ordinance of the City of Indianapolis concerning billboard location permits is not applicable to its plan to erect 10 billboards in Indianapolis. Because no construction or other work that gave Pinnacle a vested interest in the billboard project had begun on the billboards at the time of the ordinance change, the ordinance change did apply to the 10 billboards.


 


Background


 


Pinnacle Media, LLC, erects and leases advertising billboards. In July, 1999, after some period of discussion, the City of Indianapolis advised Pinnacle in writing that the City’s billboard location permit regulation did not apply with respect to billboards proposed to be erected in interstate highway rights-of-way because those rights-of-way were not covered by the City’s zoning ordinance.


Pinnacle thereupon embarked on a plan to erect billboards without applying to the City for a permit. Its plan consisted of three steps. First, it would lease land for this purpose from Hoosier Heritage Port Authority, an entity that owned abandoned railroad rights-of-way at points where the abandoned railroad rights-of-way intersected with or were otherwise coextensive with interstate highway rights-of-way. Second, it would seek permits from State government, specifically, the Indiana Department of Transportation (“INDOT”), which is responsible for interstate highways. Third, it would erect the billboards without seeking any approval from the City. Following this plan, Pinnacle erected two billboards in 1999, after leasing rights-of-way and obtaining INDOT permits.


Shortly thereafter, Pinnacle initiated efforts to erect 15 additional billboards by securing additional leases and submitting additional applications to INDOT. The last of these applications was submitted on April 19, 2000. A period of negotiation with the State followed during which INDOT initially denied all 15 of the applications. Pinnacle appealed the denials and ultimately entered into a settlement with the State. Well over a year later, on June 18, 2001, INDOT approved 10 of the applications and Pinnacle abandoned its request for the other five in accordance with the settlement.


Meanwhile, following the erection of the two initial billboards, the City re-examined its policy in respect of excluding interstate highway rights-of-way from the coverage of its zoning ordinance. On April 26, 2000, the City officially proposed an amendment to this effect to its zoning ordinance. Pinnacle and other interested parties received notice of the proposed amendment on April 28, and were given the opportunity to appear at a public hearing on the matter on May 17. On July 10, 2000, the City-County Council enacted into law an amendment to the zoning ordinance, assigning zoning classifications to the previously un-zoned land occupied by interstate highways. Indianapolis/Marion County Rev.Code §§ 730-100 through -103. This had the effect of making the City’s billboard location permit applicable to billboards proposed to be erected in interstate highway rights-of-way.


Following receipt of the INDOT approvals in 2001, Pinnacle began erecting one of the billboards. The City issued a stop work order on grounds that Pinnacle had not obtained the permit for the billboard required by the amended zoning ordinance.1 Pinnacle ceased construction and subsequently filed suit against the City, seeking a declaration that the amendment to the zoning ordinance was inapplicable to the 10 permits and that the stop work order was void and unenforceable. The City filed a motion to dismiss, which the trial court denied,2 and both parties subsequently filed for summary judgment. The trial court granted summary judgment in favor of Pinnacle and also concluded that Pinnacle was entitled to attorney fees because the City engaged in “frivolous, unreasonable, or groundless litigation.” Appellant’s App. at 9-10. The Court of Appeals affirmed the determination of the trial court that the amendment to the zoning ordinance was inapplicable to the 10 permits but reversed the trial court on the attorney fees issue. Metro. Dev. Comm’n v. Pinnacle Media, LLC, 811 N.E.2d 404, 414 (Ind.Ct.App.2004). We now grant transfer and reverse the judgment of the trial court.


 


Discussion


 


 


I


 


The question of whether Pinnacle’s 10 billboards are subject to the 2000 zoning ordinance amendment implicates two disparate lines of Indiana cases. Both lines employ the term “vested rights” and generally stand for the proposition that a person’s “vested rights” are protected against retroactive application of a change in law. But each line takes a quite different approach to defining or determining when a “vested right” exists, and these approaches can lead to different results.


 


A


 


The first line of cases arises under a zoning law principle called “nonconforming use.” A nonconforming use is a use of property that lawfully existed prior to the enactment of a zoning ordinance that continues after the ordinance’s effective date even though it does not comply with the ordinance’s restrictions. Metro. Dev. Comm’n. v. Marianos, 274 Ind. 67, 408 N.E.2d 1267, 1269 (1980). The general rule is that a nonconforming use may not be terminated by a new zoning enactment. See Jacobs v. Mishawaka Bd. of Zoning Appeals, 182 Ind.App. 500, 501-02, 395 N.E.2d 834, 836 (1979) (“An ordinance prohibiting any continuation of an existing lawful use within a zoned area is unconstitutional as a taking of property without due process of law and as an unreasonable exercise of police power.”). In these situations, it is often said that the landowner had a “vested right” in the use of the property before the use became nonconforming, and because the right was vested, the government could not terminate it without implicating the Due Process or Takings Clauses of the Fifth Amendment of the federal constitution, applicable to the states through the Fourteenth Amendment.3 U.S. Const., amends V & XIV. See generally, John J. Delaney and Emily J. Vaias, Recognizing Vested Development Rights as Protected Property in Fifth Amendment Due Process and Takings Claims, 49 Wash. U.J. Urb. & Contemp. L. 27, 31-35 (1996).


A relatively frequent subject of land use litigation is whether a developer can have a “vested interest” in a nonconforming use that is only intended – construction has not yet begun at the time of the new enactment – such that the government cannot terminate it. See Linda S. Tucker, Annotation, Activities in Preparation for Building as Establishing Valid Nonconforming Use or Vested Right to Engage in Construction for Intended Use, 38 A.L.R.5th 737, 752 (1996 & Supp.2005).


This Annotation reflects the fact that many courts, including ours, have been presented with cases where a developer encounters a zoning change after embarking on a project but before beginning construction. The leading Indiana case on this subject – discussed in the Annotation – is Lutz v. New Albany City Plan Comm’n, 230 Ind. 74, 101 N.E.2d 187 (1951).


As a general proposition, the courts have been willing to hold that the developer acquires a “vested right” such that a new ordinance does not apply retroactively if, but only if, the developer “(1) relying in good faith, (2) upon some act or omission of the government, (3) … has made substantial changes or otherwise committed himself to his substantial disadvantage prior to a zoning change.” Delaney & Vaias, supra, at 31-35 (citing Sgro v. Howarth, 54 Ill.App.2d 1, 203 N.E.2d 173, 177 (1964)).


Indiana law, as enunciated in Lutz, is consistent with these principles. In that case, the developer acquired real estate pursuant to an option agreement that required the seller to demolish a house on the property and clear the lots for construction of a gasoline service station. The developer secured a mortgage commitment to finance the construction and entered into an agreement by which a petroleum concern would lease and operate the service station when built. After all of these actions had been taken but before construction of the service station itself began, the city enacted a zoning ordinance that did not permit the erection of gasoline service stations on the real estate in question. Lutz, 230 Ind. at 78-79, 101 N.E.2d at 189.


When the developer’s application for a zoning variance was denied by the Board of Zoning Appeals, the developer appealed, contending that by entering into the lease and proceeding to convert the real estate to a service station prior to the passage of the zoning ordinance, his rights to use of the property in that way had become vested and that the application of the zoning ordinance to him was unconstitutional. Id. at 77, 101 N.E.2d at 188. The trial court affirmed the decision of the Board of Zoning Appeals, as did this Court:


The zoning ordinance herein is, of course, subject to any vested rights in the property of appellants acquired prior to the enactment of the zoning law. But where no work has been commenced, or where only preliminary work has been done without going ahead with the construction of the proposed building, there can be no vested rights. The fact that ground had been purchased and plans had been made for the erection of the building before the adoption of the zoning ordinance prohibiting the kind of building contemplated, is held not to exempt the property from the operation of the zoning ordinance. Structures in the course of construction at the time of the enactment or the effective date of the zoning law are exempt from the restrictions of the ordinance. The service station was not in the course of construction so as to give to appellants vested rights, and was not a nonconforming use existing at the time of passage of the ordinance.


Id. at 81-82, 101 N.E.2d at 190.


 


B


 


The second line of cases traces its origin in Indiana law to zoning law but has over the years been invoked more generally when a person has an application for a government permit pending at the time a law governing the granting of the permit changes.


The lead case in this line illustrates the point. In Knutson v. State ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959) (on reh’g), this Court held that an application for approval of a subdivision plat was not subject to the provisions of a subdivision control ordinance enacted by a town council after the date on which the application was first filed.4


The Court in Knutson said that “a municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application of such permit.” Id. at 667, 160 N.E.2d at 201 (citing State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777 (1941)). The Knutson Court went on to say that “[t]his rule, we believe, is consistent with the general rule of law that ordinances or statutes which are substantive in their effect are not retroactive.” Id. at 668, 160 N.E.2d. at 201. The Court then quoted the Corpus Juris Secundum: “[T]he general rule, which is almost universally supported by the authorities, is that retrospective laws are unconstitutional if they disturb or destroy existing or vested rights.Id. (quoting 16A C.J.S., Constitutional Law § 417 at 99-103) (emphasis added).


Knutson has been relied upon by the Court of Appeals in a number of cases for the proposition that a change in law cannot be applied retroactively in respect of a permit application on file with a permitting agency at the time of the change. See Steuben County v. Family Dev., Ltd., 753 N.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a permit for a landfill); Yater v. Hancock County Bd. of Health, 677 N.E.2d 526 (Ind.Ct.App.1997) (concerning septic permits); Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt. of Ind., Inc., 604 N.E.2d 1199 (Ind.Ct.App.1992), trans. denied (concerning a hazardous waste disposal permit); Bd. of Zoning Appeals of Ft. Wayne v. Shell Oil Co., 164 Ind.App. 497, 329 N.E.2d 636 (1975) (concerning a building permit for gas station).


 


II


 


In one respect, the Lutz and Knutson precedents are quite consistent. Both clearly stand for the proposition that changes in zoning ordinances are “subject to any vested rights,” Lutz, 230 Ind. at 81, 101 N.E.2d at 190; that such changes “are unconstitutional if they disturb or destroy existing or vested rights,” Knutson, 239 Ind. at 667, 160 N.E.2d at 201. But in another respect, Lutz and Knutson lie in uneasy tension with one another. If the land acquisition, demolition, and site preparation work in Lutz is not enough to establish a vested interest, how can it be that the mere filing in Knutson of a building permit (when, by definition, no construction has yet begun) is enough to do so? In the words of one commentator, “[i]t is difficult to see how the theoretically distinguishable concept of nonconforming use, protecting owners of developed property from the provisions of subsequently enacted zoning regulations, could logically be applied to protect a landowner who has only reached the stage of applying for a building permit.” Roland F. Chase, Annotation, Retroactive Effect of Zoning Regulation, in Absence of Saving Clause, on Pending Application for Building Permit, 50 A.L.R.3d 596, 607 (1973, Supp.2005).


Pinnacle argues adamantly that this is not a nonconforming use case for which Lutz is precedent but a permit application case controlled by Knutson. While for reasons we will set forth in a moment we think this is a nonconforming use case, we also think, at least in respect of building permits, the Knutson rule should be revisited.


To repeat, the Court in Lutz held that “[t]he zoning ordinance herein is, of course, subject to any vested rights in the property of appellants acquired prior to the enactment of the zoning law. But where no work has been commenced, or where only preliminary work has been done without going ahead with the construction of the proposed building, there can be no vested rights.” Lutz, 230 Ind. at 81, 101 N.E.2d at 190. We think this is the correct rule for nonconforming uses, one that is the rule of most jurisdictions. See, e.g., Town of Orangetown v. Magee, 88 N.Y.2d 41, 643 N.Y.S.2d 21, 665 N.E.2d 1061 (1996); Finch v. Durham, 325 N.C. 352, 384 S.E.2d 8 (1989) (reh’g denied); Snake River Venture v. Bd. of County Comm’rs, 616 P.2d 744 (Wyo.1980); Houston v. Bd. of City Comm’rs, 218 Kan. 323, 543 P.2d 1010 (1975); Blundell v. West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975); Perkins v. Joint City-Council Planning Comm’n, 480 S.W.2d 166 (Ky.1972).


If “there can be no vested rights” where “no work has been commenced, or where only preliminary work has been done without going ahead with the construction of the proposed building,” then in logic, the filing of a building permit – an act that must be done before any work is commenced – cannot alone give rise to vested rights.


Furthermore, at least as to building permits, Knutson is out of the mainstream. “In most jurisdictions it is clear that, as a general rule, … a zoning regulation may be retroactively applied to deny an application for a building permit, even though the permit could have been lawfully issued at the time of application.” Chase, supra, at 607. See, e.g., Town Pump, Inc. v. Bd. of Adjustment, 292 Mont. 6, 971 P.2d 349 (1998) (upholding the retroactive application of a zoning change where there was a building permit on file); Whitehead Oil Co. v. Lincoln, 234 Neb. 527, 451 N.W.2d 702 (1990) (noting and applying the “general rule”); Gay v. Mayor of Lyons, 212 Ga. 438, 93 S.E.2d 352 (1956) (upholding the retroactive application of a zoning change where there was a building permit on file); Brougher v. Bd. of Pub. Works, 205 Cal. 426, 271 P. 487 (1928)(same); Cayce v. Hopkinsville, 217 Ky. 135, 289 S.W. 223 (1926) (same).


With respect to building permits, then, Knutson’s suggestion that having a building permit on file creates a vested right that cannot be overcome by a change in zoning law is overruled.5


 


III


 


Regardless of Knutson’s viability, we do not believe its rule is available to Pinnacle in this case. While Pinnacle argues vehemently that this is not a nonconforming use case, we believe that it is properly analyzed under Lutz’s principles. When Pinnacle set out to erect the 10 (initially 15) billboards, there was no location permit required by the City. This is exactly the position the developer in Lutz was in when it started out to develop the gasoline service station. The question there – as we find it to be here – was whether, at the time of the change in the zoning ordinance, construction had proceeded on the project to the point that the developer had a vested interest. As discussed, the Court held that the construction had not. Lutz, 230 Ind. at 81, 101 N.E.2d at 190.


In this case, no construction of any kind had proceeded on the 10 billboards as of April 26, 2000, the date the ordinance change was officially proposed, or even July 10, 2000, the date it was enacted. Pinnacle does not present us with any argument that it made construction expenditures before the enactment of the zoning ordinance change.6 Nor could it. It was not until 11 months later, June 18, 2001, that Pinnacle received the separate approvals required by the State.


Pinnacle argues that its filing of applications for permits with the State on April 19, 2000, immunized it from the City’s zoning change but we see no basis in law or logic for this proposition. While we acknowledge that at times, state law can pre-empt local law, see, e.g., Ind.Code § 36-1-3-5(a) (2005), Pinnacle provides us with no authority that there is state pre-emption here. Local government enjoys wide latitude from the State in land use regulation. Its authority includes “not only all powers granted it by statute, but also all other powers necessary or desirable in the conduct of its affairs.” Ind. Dep’t of Natural Res. v. Newton County, 802 N.E.2d 430, 432 (Ind.2004) (quotations and citations omitted). And while here the City has imposed burdens in addition to those of the State for a party seeking to erect billboards in interstate rights-of-way, state law has not been frustrated by the city zoning ordinance. See id at 433. In other words, this is not a case where anything the City has done interferes with State prerogatives. Furthermore, common experience tells us that permits and approvals from different agencies and levels of government are often required for a single project. Compliance with one agency’s or level’s requirements simply does not constitute compliance with another’s.


Most telling in this respect is the fact that regardless of what the City’s billboard location regulation was, or even whether it had one, Pinnacle would still have been required to obtain State approval for its project. State approval was in addition to, and not a substitute for, local approval. That being so, Pinnacle cannot use its compliance with State requirements as a substitute for compliance with local requirements.


 


Conclusion


 


Having granted transfer, Indiana Appellate Rule 58(A), we reverse the judgment of the trial court as to its holding that the zoning ordinance was inapplicable to the 10 permits and remand this matter to the trial court with instructions to grant the City’s motion for summary judgment. Because we find that the zoning ordinance was applicable, we also reverse the trial court’s award to Pinnacle of attorney fees.


Shepard, C.J., and Dickson, Boehm, and Ruckerconcur.




FOOTNOTES

  1. After this lawsuit was filed, the City took the position that Pinnacle needed the City’s approval to erect billboards even before the zoning ordinance was amended. Because we hold that the amended ordinance governs the 10 billboards at issue here, we need not address this contention.


  2. In denying the City’s motion, the trial court found that the City was estopped from arguing that the doctrine of vested rights did not apply because Pinnacle detrimentally relied on the City’s representations that it did not have jurisdiction to issue the improvement location permits. Order on Defendant’s Motion to Dismiss (Pappas, J., pro tempore), Appellant’s App. at 39. The court relied on our decision in Equicor Dev. v. Westfield-Washington Twp., 758 N.E.2d 34 (Ind.2001). In Equicor, this Court made an exception to the general rule that “government entities are not subject to equitable estoppel.” Id. at 39 (citing State ex rel. Agan v. Hendricks Superior Court, 250 Ind. 675, 678, 235 N.E.2d 458, 460 (1968)). In Fulton County Advisory Plan Comm’n v. Groninger, 810 N.E.2d 704 (Ind.2004), we made it clear that we found the facts in Equicor to be “highly unusual.” Id. at 710. The trial court’s ruling here preceded Groninger.


  3. See Bd. of Zoning Appeals v. Leisz, 702 N.E.2d 1026, 1031 (Ind.1998), where we held that a zoning ordinance that provided for the forfeiture of a prior nonconforming use if it was not registered did not violate the Fifth and Fourteenth Amendments.


  4. The procedural setting of Knutson was somewhat complicated. In unrelated collateral litigation, a trial court had declared the subdivision control ordinance of the Town of Dyer to be unconstitutional and this Court found that ruling to control in Knutson. As such, the question presented in Knutson was whether the developer was entitled to have its plat approved by the Town Council, whose decision, in the absence of an effective subdivision control ordinance, was controlled only by the state statute governing subdivisions. This Court ordered the Town Council to approve the plat. On rehearing, the Town Council argued that a new subdivision control ordinance had been enacted after the first had been declared unconstitutional and that the developer’s application had been properly denied pursuant to the new ordinance’s terms.


  5. As noted in the text above, the Knutson principle has been applied to applications for a number of other types of government permits. See Steuben County v. Family Dev., Ltd., 753 N.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a permit for a landfill); Yater v. Hancock County Bd. of Health, 677 N.E.2d 526 (Ind.Ct.App.1997)(concerning septic permits); Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt. of Ind., Inc., 604 N.E.2d 1199 (Ind.Ct.App.1992), trans. denied (concerning a hazardous waste disposal permit). Because the law and facts in each of these cases differs materially from those applicable to building permits, we limit our holding today only to building permits.


  6. Compare with State ex rel. Great Lakes Pipe Line Co. v. Hendrickson, 393 S.W.2d 481, 484 (Mo.1965). In Hendrickson, a public utility company had acquired land in a village for the purpose of installing a pumping station. After having been advised by the village that it had no zoning regulations, the utility had entered into a contract for the construction of the station. After the utility’s contractors began work, the village enacted a zoning ordinance that restricted the erection of pumping stations. Before the ordinance was enacted, the utility had spent or committed itself to a total of over $64,000 in addition to the amount that it had paid for the land. Id. at 482-83. The court found that “[a] structure in the course of construction at the time of the enactment of the ordinance is protected as a nonconforming use, but mere preliminary work which is not of a substantial nature does not constitute a nonconforming use.” Id. at 484. The court then held that because the utility had completed a portion of the structure and had obligated itself to a great extent of money before the zoning ordinance was passed, the utility had established a non-conforming use of the land for the purpose of a pumping station prior to the enactment of the ordinance and had a vested right thereto. Id.


Valley View Industrial Park, Respondent, v. The City of Redmond, Appellant,

733 P.2d 182 (Wash. 1987)




Ogden, Ogden & Murphy, by Larry C. Martin, James E. Haney, and Mark A. Eames, for appellant.


Bogle & Gates and Elaine L. Spencer, for respondent.


 


Callow, J.


 


… .


Valley View Industrial Park is a general partnership formed in 1978 to develop this specific parcel of land. Following a protracted interchange between the partnership and the City of Redmond, within whose boundaries the property lies, the partnership initiated this action against the City seeking (1) a writ of mandamus ordering the City to proceed with site plan review of its light industrial development in the Sammamish River Valley; (2) a declaration that the City’s decision to change the zoning of its property from light industrial to agricultural use was an uncompensated taking that violated federal and state constitutions; and (3) damages and attorney’s fees it incurred from the time of the zoning change.


The City denied the complaint and interposed the following defenses: (1) that Valley View had failed to meet procedural prerequisites to suit, including (a) conformance with the applicable statute of limitations, (b) exhaustion of administrative remedies, and (c) laches; (2) that the zoning change represented a valid exercise of police power; (3) that even if an unconstitutional taking had occurred, Valley View was not entitled to interim damages and attorney’s fees.


The trial court dismissed Valley View’s claim for interim damages but conducted a trial to the court on the remaining issues. Following trial, the court found for Valley View. It held that the zoning change was unconstitutional and ordered the City to proceed with the site plan review. The City appealed the decision on the grounds it had asserted at trial. On Valley View’s motion, the case was transferred here from the Court of Appeals pursuant to RAP 4.3.


We affirm the trial court’s judgment which holds that Valley View acquired vested rights to have five building permit applications processed under the City of Redmond’s light industrial use zoning classification in effect at the time of filing, we affirm the court’s order retaining upon the property the light industrial use zoning classification, and we affirm the denial of damages and deny the request for attorney fees in the cross appeal.


 


FACTS


 


Valley View intends to develop an industrial park on a 26.71-acre parcel of property in the Sammamish River Valley. The valley historically was an agricultural area; the soil is some of the richest in King County. In recent years the agricultural character of the Sammamish River Valley has changed drastically. The population has increased significantly. Commercial and residential development has replaced many of the farms and the accompanying agricultural support services, including feed and fertilizer dealers, farm equipment sellers, and grain elevators. The area around the Valley View parcel reflects this transition. The property immediately to the north remains zoned for agricultural uses. To the northwest, across the road from Valley View, are three large industrial developments. Puget Sound Power and Light holds a 250-foot right of way on Valley View’s south border. South of that right of way is another industrial park and property zoned for expected commercial and residential development. The Sammamish River marks the east edge of the Valley View property. Across the river, to the southeast, is the site of a proposed regional shopping center.


The City of Redmond annexed the Valley View parcel from King County in 1964, and changed the zoning of the parcel from agricultural to “light industrial.” In 1970, the City adopted a comprehensive land use plan setting forth the City’s official policies and goals for future regulation and use of property.


The City began revising and updating its land use regulations to achieve conformity with the 1970 comprehensive plan. Concurrently, the farmlands preservation movement became a force in King County and applied pressure for agricultural zoning of the parcel. In 1977, a citizens’ advisory committee was formed for the purpose of formulating recommendations on the land use plan and regulatory revisions. The committee conducted numerous public hearings and meetings, culminating in an official committee proposal which was forwarded to the city council. Following receipt of the proposal, the city council conducted extensive deliberations, including additional public hearings upon the proposal. On June 5, 1979, the council passed ordinance 875, which adopted the City’s revised land use goals, policies, plans, regulations and procedures in a volume entitled Community Development Guide.


The Community Development Guide included an amended zoning map which adjusted the boundary between the agricultural and industrial zones in the Sammamish Valley. The citizen advisory committee recommended that the council shift the boundary between the agricultural and light industrial uses to the south, in alignment with a 250-foot-wide power transmission line right of way, thereby providing a visible and spatial separation of the agricultural and industrial uses. The city council adopted this recommendation as a part of its comprehensive zoning revisions. With adoption of the revised zoning map, the boundary line was extended to the southern boundary of the Valley View property to adjoin the 250-foot power line right of way. The zoning of the Valley View property thus was revised from light industrial to agricultural use.


Valley View formulated and proceeded with plans to develop an industrial park on the tract. Valley View intended the industrial park to consist of 12 buildings, developed in phases. In the first phase, it intended to build the infrastructure (i.e., the road, utilities, etc.) and the shell of the first building. It then intended to market the project and construct additional buildings as it found tenants for those buildings. The cost of the infrastructure was projected to be so high that the cost would not be recovered, and the project would not be profitable until several of the buildings were completed.


Valley View first initiated contact with the city planning department on September 3, 1978, by submitting a preliminary site plan for the proposed development. A city planner informed Valley View representatives that the proposed industrial park would be subject to site plan review under Redmond ordinance 733, which provided that no building permit could be issued for a commercial or industrial development without prior site plan approval.


Although the preliminary site plan did not contemplate construction that would require a shoreline development permit, the city planner incorrectly informed Valley View that the proposed industrial park would require a shoreline substantial development permit due to the proximity of the Sammamish River.


During the conversation on September 3, Valley View was requested to file, and as a result on September 7, 1978, Valley View did file, a more detailed site plan, a SEPA environmental checklist, a shoreline substantial development permit application and plans for the first of 12 buildings to be constructed in the industrial park. As a result of the discussion on September 3, in which it was informed that the City would require a shoreline substantial development permit, Valley View amended the site plan to include a building which came within 200 feet of the Sammamish River.


On September 7, 1978, the head of the City’s building department refused to proceed on the single building permit application until site plan review had been completed on the project.


In a September 18 letter, city officials wrote Valley View for additional information. In response, Valley View provided some information on sewers and storm drainage, as well as a revised SEPA checklist, a revised site plan and a proposed protective covenant. These documents were filed on October 18.


The City requested no additional information for 3 months. In the interim, it approved a plan to connect the Valley View property to the storm sewer system in place at the industrial park to the south. The City collected $2,500 from Valley View to pay for the extension. On January 22, 1979, the City informed Valley View that an environmental impact statement was necessary.


On February 2, Valley View submitted the names of three consultants to prepare the EIS. The City responded on March 6, by selecting a consultant not on the Valley View list. Attempting to avoid further delay, Valley View sought an appeal of the EIS decision on March 7. The City stated that no appeal was possible, but suggested a modification of the project proposal to obviate the need for an EIS. Valley View submitted a new proposal according to the City’s suggested modifications.


In early 1979, Redmond officials informed Valley View that it would have to file additional building permit applications in order to vest its rights to construct the entire project if the City downzoned the property. At that time, the City’s site plan review process for the project had not been completed. Valley View then filed four additional building permit applications. The five buildings, for which building permit applications were filed, totaled approximately 108,000 square feet of space out of the 466,914 square feet contemplated by the site plan as a whole. Five was the maximum number of buildings which Valley View concluded it was feasible to build prior to obtaining tenants for them.


On May 22, 1979, Valley View submitted an enlarged site plan and revised protective covenants and offered to negotiate with the City concerning dedication to the City of a buffer zone to the north of the Valley View property. On June 5, 1979, the Redmond City Council enacted the revised zoning code which downzoned the Valley View property from light industrial to agricultural use. By letter dated June 6, 1979, the City rejected Valley View’s modification of its proposal. Valley View did not appeal the development plan rezone as allowed by the Redmond ordinance.


The City’s 1976 version of the Uniform Building Code called for building permits to lapse after 180 days unless the permits were renewed for another 180 days. The City notified Valley View in a May 20, 1980 letter that the building permit applications were deemed abandoned. City officials, however, later assured Valley View that it still could proceed under the permits.


After the downzoning, the City took the position that if Valley View agreed to limit development to the five filed building permit applications no EIS would be required. Valley View contended it could not proceed without an EIS. The City agreed to proceed with an EIS, but later reversed itself and refused to proceed. Thereafter, in response to the City’s change in position, Valley View filed an application to change the city land use plan and zoning for the property from agricultural to light industrial use. The City then began preparation of an EIS for the Valley View project, and on January 23, 1981, issued a final impact statement for the project. After issuance of the final impact statement, the City refused to further process Valley View’s five building permit applications until the city council had acted on Valley View’s rezone application.


On April 7, 1981, the city council denied the Valley View rezone request. Valley View did not appeal this decision. Thereafter, the parties engaged in further discussion in which Valley View sought to proceed with a modified proposal. When the City refused to allow Valley View to proceed with the modified development, this suit was commenced on July 10, 1981. We have set forth in the appendix the pertinent trial court findings of fact for two reasons. First, because a number have been challenged, and second, because a reading of those findings is extremely helpful in acquiring an understanding of the factual situation.


… .


 


III. VESTING


 


Due process requires governments to treat citizens in a fundamentally fair manner. West Main Assocs. v. Bellevue, 106 Wn.2d 47, 51, 720 P.2d 782 (1986). Consequently, citizens must be protected from the fluctuations of legislative policy, West Main Assocs., at 51 (citing The Federalist No. 44, at 301 (J. Madison) (J. Cooke ed. 1961)), so that they can plan their conduct with reasonable certainty as to the legal consequences. West Main Assocs., at 51. Property development rights constitute “a valuable property right.” West Main Assocs., at 50 (quoting from Louthan v. King Cy., 94 Wn.2d 422, 428, 617 P.2d 977 (1980)). Thus new land use ordinances must satisfy due process standards by meeting a 2-part test: (1) the new regulation must aim at achieving a legitimate public purpose; and (2) the means used to achieve that purpose must be reasonably necessary and not unduly oppressive upon individuals. West Main Assocs., at 52; Norco Constr., Inc. v. King Cy., 97 Wn.2d 680, 684, 649 P.2d 103 (1982).


These due process considerations require that developers be able to take recognized action under fixed rules governing the development of their land. West Main Assocs., at 51. The right of a property owner to use his property under the terms of the zoning ordinance prevailing at the time that he applies for a building permit has been settled for over half a century. State ex rel. Hardy v. Superior Court, 155 Wash. 244, 284 P. 93 (1930). The precept was stated in State ex rel. Ogden v. Bellevue, 45 Wn.2d 492, 495-96, 275 P.2d 899 (1954), which is often quoted as follows:


A property owner has a vested right to use his property under the terms of the zoning ordinance applicable thereto. A building or use permit must issue as a matter of right upon compliance with the ordinance. The discretion permissible in zoning matters is that which is exercised in adopting the zone classifications with the terms, standards, and requirements pertinent thereto, all of which must be by general ordinance applicable to all persons alike. The acts of administering a zoning ordinance do not go back to the questions of policy and discretion which were settled at the time of the adoption of the ordinance. Administrative authorities are properly concerned with questions of compliance with the ordinance, not with its wisdom. To subject individuals to questions of policy of administrative matters would be unconstitutional….


… An owner of property has a vested right to put it to a permissible use as provided for by prevailing zoning ordinances. The right accrues at the time an application for a building permit is made. The moves and countermoves of the parties hereto by way of passing ordinances and bringing actions for injunctions, should and did avail the parties nothing. A zoning ordinance is not retroactive so as to affect rights that have already vested.


(Citations omitted.) We have rejected the rule of many jurisdictions which requires a change of position and a substantial reliance on the building permit before equitable estoppel arises to rescue the by then financially extended landowners. 1 R. Anderson, Zoning § 6.24, at 408-09 (2d ed. 1976). See Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958).


Washington’s “date certain vesting rights doctrine” aims at insuring that new land-use ordinances do not unduly oppress development rights, thereby denying a property owner’s right to due process under the law. See West Main Assocs., at 50-52. Focusing on the date building permit applications are submitted protects development rights and, at the same time, provides two safeguards against developer speculation: (1) once a permit issues, a time limit is imposed on construction; and (2) preparing the detailed plans and specifications required for the application involves a substantial cost to the developer. Hull v. Hunt, at 130. In addition, the permit application date facilitates determining with certainty what the developer has applied for and what specific rights have accrued as a result. See Hull v. Hunt, supra at 130; see also Mercer Enters. v. Bremerton, 93 Wn.2d 624, 633, 611 P.2d 1237 (1980) (Utter, C.J., dissenting).


In the ordinary course of events, a developer’s right to develop in accordance with a particular zoning designation vests only if the developer files a building permit application that (1) is sufficiently complete, (2) complies with existing zoning ordinances and building codes, and (3) is filed during the effective period of the zoning ordinances under which the developer seeks to develop. West Main Assocs., at 51; Allenbach v. Tukwila, 101 Wn.2d 193, 676 P.2d 473 (1984). Due process considerations of fundamental fairness require this court to look beyond these four requirements to the conduct of the parties only in the rare case where city officials clearly frustrate a developer’s diligent, good faith efforts to complete the permit application process. See Mercer Enters. v. Bremerton, supra; Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359 (1978).


In Parkridge, this court created a limited exception to the requirement of completeness of building permit applications. The issue there was whether a right to develop land could vest despite an incomplete building permit application when the developer’s diligent attempts to complete the application prior to the zoning change had been obstructed by the local government. This court held that a development right had vested, notwithstanding the incompleteness of the application, because the developer’s good faith conduct merits recognition of the vested right. Parkridge, at 465-66.


This court then applied the Parkridge rule in Mercer Enterprises to hold that a developer’s building permit application, including a site plan, can be considered as a whole for the purpose of determining whether a building permit complied with the existing zoning ordinances. Mercer Enterprises, at 633-34. Although standing alone the building permit exceeded the density restrictions of the zoning ordinance, when considered together with the site plan for the total development project, the building permit densities were within the density restrictions. The developer’s building permit application was held sufficient to establish vested rights in that portion of the project in which building permit applications were filed.


Here, Valley View argues that it has a vested right to build the five buildings covered under the five filed permit applications. In addition, Valley View contends it has a vested right to build the remaining seven buildings designated in the site plan filed with Redmond, but not covered by any permit application. The City argues that the five permit applications were incomplete and therefore insufficient to vest Valley View’s rights in those five buildings, much less the seven buildings for which applications were not filed. As to the five buildings covered by incomplete building permits, we conclude that the Parkridge rule controls. The trial court’s findings clearly demonstrate the presence of each of the Parkridge elements: (1) Valley View diligently and in good faith attempted to obtain building permits; (2) Redmond officials explicitly frustrated Valley View’s attempts; and (3) as a result, Valley View’s building permit applications were incomplete. Thus, Valley View has a vested right to complete the five buildings for which it filed building permit applications under the light industrial zoning classifications.


Whether Valley View’s vested right also encompasses the remaining seven buildings is a question of first impression for the court. Like the developer in Mercer Enterprises, Valley View proposed a phased construction scenario. Also similar to Mercer Enterprises, throughout the negotiations between Valley View and Redmond, the 26.71-acre project was considered as a complete whole. 93 Wn.2d at 628. In Mercer Enterprises, however, this court was not asked to determine whether the scope of the vested right encompassed the entire development proposal. As a general principle, we reject any attempt to extend the vested rights doctrine to site plan review. Only where a city’s conduct frustrates the permit application process will we consider looking to the entire development proposal contained in a site plan. Because we have held that Valley View has a vested right to build the five permit application buildings, we consider those buildings as having been constructed, and review the validity of Redmond’s downzoning of Valley View’s property.


To satisfy due process standards, the City’s downzoning of Valley View’s property decision, like all zoning decisions, must bear a substantial relation to the public welfare. See Cathcart-Maltby-Clearview Comm’ty Coun. v. Snohomish Cy., 96 Wn.2d 201, 211, 634 P.2d 853 (1981). Because Redmond downzoned the property at the specific request of a number of citizens’ groups and city officials (finding of fact 50), and because Valley View’s property was the only tract downzoned to agricultural zoning (finding of fact 61), Redmond’s actions constitute rezoning. Cathcart, at 212. Although Redmond’s rezoning decision is granted some deference, Save a Neighborhood Env’t v. Seattle, 101 Wn.2d 280, 285, 676 P.2d 1006 (1984), there is no presumption of validity favoring a rezone. Parkridge, at 462. To survive a challenge, the City must demonstrate that the rezoning of Valley View’s property bears a substantial relationship to the general welfare of the affected community. Save a Neighborhood Env’t v. Seattle, supra at 286.


The City argues that rezoning Valley View’s property serves two public interests: (1) the preservation of farmland, and (2) the belief that the power line that runs along the south edge of Valley View’s property makes a nicer breaking point between land zoned industrial and land zoned agricultural than the north edge of Valley View’s property. When viewed in light of the five buildings to be built on the property, the City’s rezoning decision bears no relationship to the public interest it seeks to serve, much less a substantial relationship.


Valley View’s property is a single tract of land. As the illustrative site map indicates, when Valley View constructs the five buildings covered by permit applications, the buildings would be so located on the 26.71 acres that its preservation and use as farmland is no longer feasible. In addition, with five buildings already built on the property, the power line no longer provides a break between industrial and agricultural land. The following map illustrates the placement on the site of the five buildings for which building permits have been filed.


Five buildings plus necessary access roads, parking and utility ingress and egress will so cut up the property that any agricultural use on the remaining portions of the property could well be uneconomic. Furthermore nothing in the record indicates that the right to build just five buildings makes financial sense. The practical result of changing the zoning to agricultural could place Valley View in a situation where economic realities dictate that no buildings will be built. This would deny Valley View its rights which vested upon the filing of the five building permit applications.


As the trial court’s findings indicate, Valley View chose the number and location of the buildings covered by permit applications in good faith, basing its decision on a number of factors including: (1) the City would accept five building permits as enough to vest the right to build the entire project (finding of fact 34); (2) the location of the buildings would offer space to prospective tenants with varying needs (finding of fact 33); and (3) five buildings was the maximum number of buildings which Valley View concluded it was possible to build prior to obtaining tenants (finding of fact 33). Moreover, the rezoning does not bear a substantial relationship to the public welfare in light of the evidence that changes in the Redmond area made Valley View’s property extremely undesirable for agricultural use, land to the south and west has been, or rapidly is being, developed for industrial and commercial purposes, and the Valley View parcel does not qualify for the King County Agricultural Lands Preservation Program.


Had the City not explicitly frustrated the building permit process, Valley View would have constructed five buildings ranging over the complete area of its single tract of land. Consequently, the City’s subsequent action to downzone would not have withstood scrutiny. Therefore, the City may no longer preclude development of the Valley View property consistent with the code requirements and restrictions pertaining to the light industrial classification in effect at the time the building permit applications were filed.


We hold that when Valley View filed its five building permit applications on the subject property, it fixed, and firmly imprinted upon the parcel, the zoning classification it carried at the moment of the filing. The City has lost its chance to change the zoning classification.


However, “a vested right does not guarantee a developer the ability to build. A vested right merely establishes the ordinances to which a building permit and subsequent development must comply.” West Main Assocs., at 53. If the Valley View parcel can contain 12 buildings within its boundaries under the terms of the light industrial classification, the landowner is entitled to construct that number. Valley View is required to file building permit applications for the remaining phases of the project and comply with applicable City ordinances. The City is required to act in good faith in processing Valley View’s application.


… .


 


CONCLUSION


 


We hold that (1) Valley View has the vested right to have its five building permit applications processed under the light industrial use classification in existence at the time such building permit applications were filed; (2) the entire property must remain zoned as light industrial with the possibility of additional light industrial buildings being constructed on the property subject to compliance with existing city ordinances; (3) no interim taking occurred justifying an award of damages for a temporary taking; and (4) each party shall pay its own attorney fees.


 


Dore, J. (dissenting)


 


The separation of powers doctrine is a cornerstone of American jurisprudence. That which has been left to the Legislature should not be usurped by the judiciary. Unfortunately, the majority opinion, by rezoning the parcel of land owned by Valley View from agricultural to light industry use, does precisely that. Rezoning large parcels of property has always been a legislative, rather than a judicial function, and the majority’s refusal to follow this time-honored tradition is incorrect and unconstitutional.


I would hold that Valley View has vested rights in the five buildings for which it has filed building permits, because of the unwarranted interference of the Redmond planning officials in processing such permits. However, Valley View admittedly did not file building permits for the other seven buildings in the site review plan, as it had failed to locate tenants which were essential to obtain financing to justify the preparation and filing of seven additional building permit applications. As the City of Redmond cannot interfere or obstruct the processing of building permits which were never completed or filed, Valley View cannot under our present case law obtain vested rights for these structures. The majority by allowing construction of the seven buildings, which Valley View has yet to file building permits for, overrules the following cases that have previously held that vesting rights can only be established by filing for building permits. State ex rel. Ogden v. Bellevue, 45 Wn.2d 492, 275 P.2d 899 (1954); Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958); Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359 (1978); Mercer Enters. v. Bremerton, 93 Wn.2d 624, 611 P.2d 1237 (1980); Norco Constr., Inc. v. King Cy., 97 Wn.2d 680, 649 P.2d 103 (1982). I therefore dissent.


 


VESTING OF THE FIRST FIVE BUILDING PERMITS


 


The State of Washington presently has one of the most liberal vested rights doctrines in the nation. The requirements of the Washington doctrine are that (1) the applicant file a building permit application (2) which complies with the existing zoning ordinance and building codes and (3) is filed during the effective period of the zoning ordinances under which the applicant seeks to develop, and (4) is sufficiently complete. West Main Assocs. v. Bellevue, 106 Wn.2d 47, 50-51, 720 P.2d 782 (1986). The doctrine in Washington thus provides that an applicant for a building permit has a vested right to have the application processed under the zoning regulations in effect at the time the building permit application is filed.


In contrast to the Washington rule, the majority of jurisdictions hold that even the issuance of a building permit is insufficient to establish a vested right entitling the applicant to a nonconforming use. The applicant, in addition to obtaining a building permit, also must establish a substantial expenditure or change in position in reliance on the issued building permit to effectuate a vested right. See 1 R. Anderson, Zoning §§ 6.24, 6.25 (2d ed. 1976); Comment, Washington’s Zoning Vested Rights Doctrine, 57 Wash. L. Rev. 139 (1981).


An applicant in Washington on the other hand need not show a “change in position”; the applicant need only file a sufficiently complete building permit application to vest his right to have his application processed under the existing zoning regulations. Allenbach v. Tukwila, 101 Wn.2d 193, 676 P.2d 473 (1984). The rationale for Washington’s “date of application” vested rights rule is best enunciated in Hull v. Hunt, 53 Wn.2d 125, 130, 331 P.2d 856 (1958) as follows:


Notwithstanding the weight of authority, we prefer to have a date certain upon which the right vests to construct in accordance with the building permit. We prefer not to adopt a rule which forces the court to search through (to quote from State ex rel. Ogden v. Bellevue, supra,) “the moves and countermoves of … parties … by way of passing ordinances and bringing actions for injunctions” — to which may be added the stalling or acceleration of administrative action in the issuance of permits — to find that date upon which the substantial change of position is made which finally vests the right. The more practical rule to administer, we feel, is that the right vests when the party, property owner or not, applies for his building permit, if that permit is thereafter issued. This rule, of course, assumes that the permit applied for and granted be consistent with the zoning ordinances and building codes in force at the time of application for the permit.


The court concluded that the extensive expense incurred in securing building permits justifies a presumption that developers will not speculate in the enhanced values of land for which building permits have been hurriedly obtained prior to a zoning change. Hull, at 130. Thus, Washington’s bright line vesting rule presumes the developer has acted in good faith by incurring the substantial costs of filing a complete building permit.


The right to have a complete building permit processed under the zoning ordinances in effect at the time of application is chiefly derived from the doctrine of equitable estoppel and due process concerns of fundamental fairness. Although the court will not scrutinize the moves and countermoves of the parties nor inquire into the extent of expenditure of moneys, the doctrine prohibits a municipality from repudiating its prior conduct when a developer has expended the necessary funds to complete a building permit application. At this stage in the development process, notions of fundamental fairness require that the rules which govern the development be “fixed” and not subject to the “fluctuating policy” of the Legislature. West Main Assocs., at 51.


Filing a complete building permit application is the operative act that converts the developer’s mere expectation of no zoning change into the vested right to have the application considered under the existing zoning, despite a subsequent effective zoning change.


[T]he right vests when the party, property owner or not, applies for his building permit, if that permit is thereafter issued. This rule, of course, assumes that the permit applied for and granted be consistent with the zoning ordinances and building codes in force at the time of application for the permit.


Hull, at 130. See also Mayer Built Homes, Inc. v. Steilacoom, 17 Wn. App. 558, 564 P.2d 1170, review denied, 89 Wn.2d 1009 (1977). However, the holder of vested rights is not thereby entitled to a building permit or to develop the proposed project, but to have the building permit decision made on the basis of regulations in effect at the time of application. West Main Assocs., at 53.


The requirement that a building permit be sufficiently complete serves two purposes. First, the completed application enables a court to determine whether the building permit application complies with the zoning and building ordinances. Mercer Enters. v. Bremerton, 93 Wn.2d 624, 631, 633-34, 611 P.2d 1237 (1980) (Utter, C.J., dissenting). If a building permit application is not substantially complete, the municipality must reject the application and no vested right accrues until the omissions or irregularities are rectified. Second, the completeness requirement ensures that the developer has proceeded in good faith, i.e., incurred an investment sufficient enough to deter speculation. Hull, at 130. The provisions of the Uniform Building Code and related standards, 1976 edition, published by the International Conference of Building Officials generally set the requirements a building permit application must conform to in order to obtain a permit approval. See former RCW 19.27.030. The nature of a complete building permit application necessarily requires the expenditure of substantial sums of money. See, e.g., Allenbach v. Tukwila, 101 Wn.2d 193, 195, 676 P.2d 473 (1984).


Applying the Washington vested rights doctrine, both the majority and I find that (1) Valley View filed five building permit applications (2) which complied with the light industrial zoning ordinance and building code and (3) were filed during the effective period of the light industrial zoning ordinance under which Valley View sought to construct the five buildings.


The City contends that the fourth element (completeness) is lacking due to the need for additional information in the applications prior to processing. Any incompleteness as to these five building permit applications is governed by the rule of Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359 (1978). In Parkridge, this court created a limited exception to the requirement of completeness of building permit application. The issue there was whether a right to develop land could vest despite an incomplete building permit application when the developer’s diligent attempts to complete the application prior to the zoning change had been obstructed by the local government. This court held that the development right had vested, notwithstanding the incompleteness of the application, because of the municipality’s attempts to frustrate the project and the developer’s good faith conduct merited recognition of the vested right. See also Mercer Enters. v. Bremerton, 93 Wn.2d 624, 611 P.2d 1237 (1980).


Valley View took numerous steps to comply with the City’s requests for more information. It modified its plans to conform to city officials’ ideas, and showed a willingness to meet necessary shortcomings in the applications. The City, on the other hand, continually made new demands on Valley View. If more detailed building plan information was necessary, the building officer had the power under the ordinance to request it. The trial judge found strict compliance with zoning ordinances. That finding need not be disturbed. Valley View has the right to have its five building permits processed.


 


THE ADDITIONAL SEVEN BUILDING PERMITS


 


At this juncture, both the majority and I agree that Valley View has the right to have its five building permits processed under the ordinances in effect prior to the date that the City of Redmond rezoned its land. At this point, however, the majority ignores clear precedent, and formulates new law without any authority. By rezoning the land as light industrial, the majority violates the doctrine of separation of powers and acts as a legislative body. This should not be allowed, and the City of Redmond undoubtedly will seek relief in the United States Supreme Court.


The majority is correct when it states that a rezone must bear a substantial relationship to the general welfare of the affected community. Majority, at 640; Save a Neighborhood Env’t v. Seattle, 101 Wn.2d 280, 286, 676 P.2d 1006 (1984); Save Our Rural Env’t v. Snohomish Cy., 99 Wn.2d 363, 662 P.2d 816 (1983). The majority, however, for no apparent reason, holds that the Redmond City Council possesses the power and authority to rezone thousands of acres of land from light industrial to agricultural — which of course is correct — but does not have the authority to decide whether to end the rezone at the north end of Valley View’s property or at the south end. The majority for some incomprehensible reason holds that the city council’s legislative decision where to end a rezone (which they decided to end at a 250-foot power line right of way and not at the point the majority countenances approximately 350 feet north of the power line) bears no substantial relationship to the general welfare of the affected public. Not possessing the majority’s omniscient powers of what the general welfare of the affected public is, I would defer to the city council’s determination.


The majority creates this situation by looking at Valley View’s property as a separate tract of land from the rest of the rezone, and then assuming that the five buildings have been built for which Valley View has filed building permits. Specifically, the majority states: “[w]hen viewed in light of the five buildings to be built on the property, the City’s rezoning decision bears no relationship to the public interest it seeks to serve …” Majority, at 640. I note that the majority has cited no authority that requires a legislative body, when considering a rezone, to adjust its action to the possible developments which may or may not occur on the property. This is because no such authority exists.


To the contrary, although the construction of a number of industrial buildings on the parcel may inhibit any agricultural use of the remaining property, it does not follow that the agricultural zoning is invalid. Securing vested rights under a prior zoning classification does not invalidate the subsequently enacted zoning ordinance; the holder of vested rights is merely entitled to a nonconforming use to the extent of the vested rights. 7 P. Rohan, Zoning § 52.08[4] (1986); 1 R. Anderson, Zoning §§ 6.24, 6.25 (2d ed. 1976); R. Settle, Washington Land Use § 2.7(c)(vi) (1983). The remaining land in the parcel is not considered separate from the nonconforming use in a determination as to whether there is a possibility for profitable use of the property.


The logic for this result is apparent. In this case, for example, neither this court nor the Redmond City Council (nor anyone else for that matter) has any idea whether or not Valley View will eventually construct the five buildings for which it has filed permits. The permit applications may be invalid, Valley View may decide to abandon one or more of the buildings, or any number of other events could prevent the construction of those buildings. This is especially true as a building permit does not give the developer a vested right in perpetuity to build, but only a right to build for a limited time period which in the City of Redmond does not exceed 12 months.


The majority’s solution to this case does not account for the truly speculative nature of the construction of these buildings. It assumes they have been built, and then makes this legislative decision as an excuse to rezone large tracts of land. Furthermore, it creates the following anomalous situation. Had Valley View proceeded without hindrance from the City of Redmond, and had it found tenants for the other 7 buildings it may have filed and received building permits for all 12 buildings. These would have contained time restrictions and Valley View’s vested right to construct buildings would not have lasted in perpetuity. Instead, because of the delays, Valley View will be given the right to develop its site with no time restrictions and the City will never be able to rezone the land. This makes no sense, yet it is the result the majority opinion provides.


In the subject case, Valley View did not spend any money at all to prepare building permits for the last seven structures. The majority, however, has created a new standard which allows a developer, by filing a few building permits, to prohibit legislative bodies from rezoning adjacent land. This usurps the local legislative power to rezone land according to its beliefs as to the public welfare, and should not be allowed. I would only allow Valley View to have vested rights in the five buildings for which it has filed building permits.


 


CONCLUSION


 


I believe the majority opinion commits a flagrant violation of the separation of powers doctrine. Article 2 of the Washington State Constitution and article 1 of the United States Constitution confine the legislative power to the legislatures of the municipal, state and federal governments, and not to the judiciary. Rezoning land thus has always been a legislative act prior to this date, and the majority advances no theory to justify our unilateral decision to change this situation. I believe that the City of Redmond possessed and still possesses the power to rezone the subject tract of land which includes Valley View’s property, and that any analysis of what rights Valley View has at this point should be based on our prior decisions concerning vested rights, rather than a wholesale denial of the inherent power of a city to zone land within its own legislative boundaries.


I would


(1) Set aside the trial court’s judgment;


(2) Grant Valley View vested rights to five building permit applications, and order the City of Redmond to process such applications in accordance with the zoning of the City of Redmond in effect at the time the permits were filed;


(3) Valley View, of course, is free to apply to the Redmond City Council for a rezone of the land to permit construction of the additional seven buildings.


 


GOODLOE, J., concurs with DORE, J.


 


3.10. Neighbor Consent Provisions


City of Chicago v. Stratton,

44 N.E. 853 (Ill. 1896)



Farson & Greenfield, for appellant.


 


S. J. Howe, for appellees.



This was a suit brought under a section of the building ordinance, and is to recover the penalty for a violation of the ordinance. The section of the ordinance is as follows: ‘Sec. 49. It shall not be lawful for any person to locate, build, construct or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes, a livery boarding or sales stable, gas house, gas reservoir, paint, oil or varnish works, within 200 feet of such residence, on either side of the street, unless the owners of a majority of the lots in such block fronting or abutting on the street consent in writing to the location or construction of such livery stable, gas house, gas reservoir, paint, oil, or varnish works therein. Such written consent of the property owners shall be filed with the commissioner of buildings before a permit be granted for the construction or keeping of such livery stable, gas house, gas reservoir, paint, oil or varnish works.’ It is conceded by the appellees that they are engaged in keeping a livery, boarding, and sale stable at Nos. 211 and 213 Evanston avenue, in the city of Chicago; that they were so engaged on the 7th day of June, 1894, at said place; and that they did not procure the consent of the owners of a majority of the lots in such block fronting or abutting on the street before the erection of said building. The building which they were occupying on the 7th day of June, 1894, for that purpose, was constructed under a building permit to erect a two-story and basement brick carriage repository and stable in the rear, which was issued July 28, 1893. Instead of building a stable in the rear, it appears that the horses-some 30 or more-were kept in the basement. The building is back about 59 feet from the street, and has a plank driveway running from the entrance of the stable, which is about 6 feet above the ground, down to Evanston avenue. The livery stable and driveway are so near to a residence building on the adjoining lot that carriages driving out and in shake the whole building. On the 7th of June, 1894, there were 31 buildings in the block in which this livery stable is located, 28 of which were devoted to exclusive residence purposes. No petition has ever been signed by a majority of the property owners, as required by the ordinance governing the location and keeping of livery stables in the city of Chicago. This suit was originally brought before a justice of the peace, where judgment was entered against the defendants, and was, by the defendants, appealed to the circuit court of Cook county. Upon the trial before the court, a jury having been waived, certain propositions of law, in pursuance of the statute, were offered on behalf of the plaintiff, presenting the question of the legaility of the ordinance in question, which the court was requested to hold as the law governing the case, but the court held the section of the ordinance to be invalid, and entered a finding for the defendants. Motion for a new trial having been overruled, the court entered judgment upon the finding. The case was taken by appeal to the appellate court, where the judgment of the court below was affirmed. The plaintiff now brings the case to this court by appeal.


The assignment of error chiefly relied upon is that the court below refused to hold as law the following propositions of law submitted on behalf of the plaintiff, the city of Chicago: ‘(2) The court is requested to hold as a proposition of law that the provisions of section 49 of the building ordinance of the city of Chicago passed March 13, 1893, wherein it is ordained that it shall not be lawful for any person to locate, build, construct, or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes a livery, boarding, or sales stable, unless the owners of a majority of the lots in such block fronting or abutting on the street consent in writing to the location of such livery stable, is not, under the laws of the said state of Illinois, a delegation of legislative power by the common council of said city of Chicago to the property owners of such block. (3) The court is requested to hold as a proposition of law that section 49 of the building ordinance of the city of Chicago passed by the common council of said city on the 13th day of March, A. D. 1893, is lawful, valid, and binding upon the defendants in this case, and that under the evidence the plaintiff is entitled to recover. (4) If the court find from the evidence that on the 6th day of June, 1894, the defendants were engaged in keeping a livery, boarding, and sales stable within the limits of the city of Chicago, and that the said defendants have not at any time procured in writing the consent of the owners of a majority of the lots in the block in which said livery stable is located fronting or abutting on the street upon which the same is located, in pursuance of the requirements of section 49 of the certain building ordinance of the city of Chicago passed by the common council of said city on the 13th day of March, A. D. 1893; and, if the court further finds from the evidence that two-thirds of the buildings in the block in which said livery stable is located are devoted to exclusive residence purposes,-then the court is requested to hold as a proposition of law that the defendants have been guilty of a violation of said section 49 of said ordinance, and the plaintiff is entitled to recover in this suit the penalty provided in said ordinance for the violation thereof.’


 


Magruder, J. (after stating the facts).



The eighty-second paragraph of section 1 of article 5 of the city and village act, which has been adopted by the city of Chicago, provides that the city council in cities shall have the power ‘to direct the location and regulate the use and construction of * * * livery stables * * * within the limits of the city.’ 3 Starr & C. Ann. St. p. 191. The power to make laws which the constitution confers upon the legislature cannot be delegated by the legislature to any other body or authority. The constitutional maxim which prohibits such delegation of legislative power is not violated when municipal corporations are vested with certain powers of legislation in view of the recognized propriety of conferring upon such municipal organizations the right to make local regulations, of the need of which they are supposed to be beteer judges than the legislature of the state. But such powers as are conferred upon municipality, and, so far as they are legislative, cannot be delegated to any subordinate or to any other authority. The same restriction which rests upon the legislature as to the legislative functions conferred upon it by the constitution, rests upon a municipal corporation as to the powers granted to it by the legislature. Cooley, Const. Lim. (6th Ed.) pp. 137, 138, 248, 249. Accordingly, ‘the principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.’ 1 Dill. Mun. Corp. (4th Ed.) § 96. The question, then, in the present case is whether the power to direct the location of livery stables and regulate their use and construction which has been conferred upon the common council of the city of Chicago by the city and village act is delegated by section 49 of the building ordinance to the owners of a majority of the lots in the blocks therein specified. That section provides that ‘it shall not be lawful for any person to locate, build, construct or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes, a livery, boarding or sales stable * * * within 200 feet of such residence, on either side of the street, unless the owners of a majority of the lots in such block fronting or abutting on the street consent in writing to the location or construction of such livery stable.’ It is to be noticed that the ordinance does not prohibit the location or construction or keeping of livery stables in blocks which are vacant, or where the buildings are devoted to business purposes, or where less than two-thirds of the buildings are devoted to exclusive residence purposes. It forbids the location of such stables in blocks where two-thirds of the buildings are devoted to exclusive residence purposes, but provides that they may be located even in such blocks if the owners of a majority of the lots therein consent thereto in writing. There is a general prohibition against the location of livery stables in blocks where two-thirds of the buildings are devoted to exclusive residence purposes, and then an exception to the prohibition is created in favor of blocks of the class designated where a majority of the lot owners consent in writing to the location of a livery stable there. We are unable to see how this exception amounts to a delegation by the common council of its power to direct the location of livery stables to such lot owners. While it may be true that a livery stable in a city or town is not per se a nuisance, ‘yet it becomes so if so kept or used as to destroy the comfort of owners and occupants of adjacent premises, and so as to impair the value of their property.’ 13 Am. & Eng. Enc. Law. p. 935. A livery stable in close proximity to an existing residence may be injurious to the comfort, and even health, of the occupants by the permeation of deleterious gases, and by the near deposit of offal removed therefrom. Shiras v. Olinger, 50 Iowa, 571, 32 Am. Rep. 138, and note. As cities are constructed, the division of the territory is into blocks bounded by streets. The persons who will be injuriously affected by a livery stable so kept as to be a nuisance are those whose residences are in the same block where the stable is located. The prohibition against the location of a stable in a residence block is for the benefit of those who reside there. If those for whose benefit the prohibition is created make no objection to the location of such a stable in their midst, an enforcement of the prohibition as to that block would seem to be unnecessary. By section 49 the lot owners are not clothed with the power to locate livery stables, but are merely given the privilege of consenting that an existing ordinance against the location of a livery stable in such a block as theirs may not be enforced as against their block. They are simply allowed to waive the right to insist upon the enforcement of a legal prohibition which was adopted for their benefit and comfort. It is competent for the legislature to pass a law the ultimate operation of which may, by its own terms, be made to depend upon a contingency. People v. Hoffman, 116 Ill. 587, 5 N. E. 596, and 8 N. E. 788, and cases cited. As was said by the supreme court of Pennsylvania in Locke’s Appeal, 72 Pa. St. 491: ‘The true distinction * * * is this: The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.’ In the case at bar the ordinance provides for a contingency, to wit, the consent of a majority of the lot owners in the block upon the happening of which the ordinance will be inoperative in certain localities. The operation of the ordinance is made to depend upon the fact of the consent of a majority of the lot owners, but the ordinance is complete in itself as passed. What are known as ‘local option laws’ depend for their adoption or enforcement upon the votes of some portion of the people, and yet are not regarded as delegations of legislative power. 13 Am. & Eng. Enc. Law, p. 991. Delegation of power to make the law is forbidden, as necessarily involving a discretion as to what the law shall be; but there can be no valid objection to a law which confers an authority or discretion as to its execution, to be exercised under and in pursuance of the law itself. Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton Co., 1 Ohio St. 77. Here the provision in reference to the consent of the lot owners affects the execution of the ordinance, rather than its enactment. People v. Salomon, 51 Ill. 37; Bull v. Read, 13 Grat. 78; Cargo of the Brig Aurora v. United States, 7 Cranch, 382; Alcorn v. Hamer, 38 Miss. 652. The ordinance in question does not delegate to a majority of the lot owners the right to pass, or even approve of, it. On the contrary, their consent is in the nature of a condition subsequent which may defeat the operation of the prohibition against the location of a livery stable in a block where two-thirds of the buildings are devoted to exclusive residence purposes, but which was never intended to confer upon the ordinance validity as an expression of the legislative will. Alcorn v. Hamer, supra. The express grant of the power to direct the locaton of livery stables as made by the legislature to the municipal corporation carries with it all necessary and proper means to make the power effectual. Huston v. Clark, 112 Ill. 344. In other words, a grant of legislative power to do a certain thing carries with it the power to use all necessary and proper means to accomplish the end; and the legislature may authorize others to do things which it might properly, but cannot conveniently or advantageously, do itself. Railroad Co. v. Jones, 149 Ill. 361, 37 N. E. 247 In determining the question of the location of a livery stable the common council may properly consult the wishes and ascertain the needs of the residents of the block where the stable is to be kept, and to that end make their written consent the basis of the action of the commissioner of buildings in issuing the permit. In matters of purely local concern the parties immediately interested may fairly be supposed to be more competent to judge of their needs than any central authority. Cooley, Const. Lim. (6th Ed.) p. 138. In Meyers v. Baker, 120 Ill. 567, 12 N. E. 79, there was involved the question of the validity of a section of the Criminal Code, which provides that: ‘Whoever during the time of holding any camp or field meeting for religious purposes and within one mile of the place of holding such meeting hawks or peddles goods, wares or merchandise or without the permission of the authorities having charge of such meeting establishes any tent, booth or other place for vending provisions or refreshments or sells or gives away, or offers to sell or give away any spirituous liquor, wine, cider or beer or practices or engages in gaming or horse racing, or exhibits or offers to exhibit any show or play shall be fined,’ etc. Rev. St. Ill. c. 38, § 59. In that case we held that ‘the rule which would control an ordinance would also apply to an act of the legislature,’ and that the statute did ‘not confer the power to licence on the authorities in charge of the meeting,’ and we there said: ‘The fact that the act confers on the authorities the right to consent or refuse consent cannot be held to authorize such authorities to license. The right to consent or refuse consent is one thing, while the right or power to license a person to conduct a certain business at a certain place is quite a different thing. Had the legislature intended to authorize the authorities to license, language expressing that intention in plain words would no doubt have been used. But, however this may be, we see nothing in the language of the act which can be construed as authorizing the authorities to license.’ Where an annexation act of the legislature provided that, when territory was annexed to a city under the provisions of that act, and, prior to such annexation, there were in force ordinances providing that licenses to keep dram shops should not be issued except upon petition of a majority of the voters residing within a certain distance of the location of such proposed dram shop, it was held that such ordinance still remained in force after the annexation, and that it was not unreasonable. People v. Cregier, 138 Ill. 401, 28 N. E. 812.


The case of City of St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, is relied upon as announcing a different view of the present question from that which is here expressed, but the ordinance condemned in that case provided that no livery stable should ‘be located on any block of ground in St. Louis without the written consent of the owners of one-half the ground of said block.’ It will be noticed that in the Missouri case the ordinance requiring the consent of adjacent property owners related to the entire city. Under the operation of such an ordinance livery stables might be totally suppressed and prohibited everywhere within the municipal limits. The ordinance, however, in the case at bar is not thus unreasonable, as it relates only to certain residence districts, which are clearly defined. Within such specified residence districts, the city council undoubtedly has the power to prohibit or forbid the location of livery stables, and, having the power of total prohibition within those districts, it may impose such conditions and restrictions in relation to their limited area as it may see fit. For the reasons stated, we are of the opinion that the ordinance here in question is not void as being a delegation of legislative power, and that the circuit court erred in not holding as law the propositions submitted to it as the same are set foth in the statement preceding this opinion. Accordingly the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed. Reversed and remanded.


Eubank v. City of Richmond,

226 U.S. 137 (1912)


ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.




Mr. S.S.P. Patteson for plaintiff in error.


Mr. H.R. Pollard for defendant in error.


 


Mr. Justice McKenna delivered the opinion of the court.


 


In error to review a judgment of the Hustings Court of the city of Richmond affirming a judgment of the Police Court of the city imposing a fine of $25.00 on plaintiff in error for alleged violation of an ordinance of the city fixing a building line. The judgment was affirmed by the Supreme Court of the State. 110 Virginia, 749.


Plaintiff in error attacks the validity of the ordinance and the statute under which it was enacted on the ground that they infringe the Constitution of the United States in that they deprive plaintiff in error of his property without due process of law and deny him the equal protection of the laws.


The statute authorized the councils of cities and towns, among other things, “to make regulations concerning the building of houses in the city or town, and in their discretion,… in particular districts, or along particular streets, to prescribe and establish building lines, or to require property owners in certain localities or districts to leave a certain percentage of lots free from buildings, and to regulate the height of buildings.” Acts of 1908, p. 623, 4.


By virtue of this act the city council passed the following ordinance: “That whenever the owners of two-thirds of the property abutting on any street shall, in writing, request the committee on streets to establish a building line on the side of the square on which their property fronts, the said committee shall establish such line so that the same shall not be less than five feet nor more than thirty feet from the street line… . And no permit for the erection of any building upon such front of the square upon which such building line is so established shall be issued except for the construction of houses within the limits of such line.” A fine of not less than twenty-five nor more than five hundred dollars is prescribed for a violation of the ordinance.


The facts are as follows: Plaintiff in error is the owner of a lot thirty-three feet wide on the south side of Grace street between Twenty-eighth and Twenty-ninth streets. He applied for and received a permit on the nineteenth of December, 1908, to build a detached brick building to be used for a dwelling, according to certain plans and specifications which had been approved by the building inspector, dimensions of the building to be 26x59x28 feet high.


On the ninth of January, 1909, the street committee being in session, two-thirds of the property owners on the side of the square where plaintiff in error’s lot is situated, petitioned for the establishment of a building line, and in accordance with the petition a resolution was passed establishing a building line on the line of a majority of the houses then erected and the building inspector ordered to be notified. This was done, and the plaintiff in error given notice that the line established was “about fourteen (14) feet from the true line of the street and on a line with the majority of the houses.” He was notified further that all portions of his house “including Octagon Bay, must be set back to conform to” that line. Plaintiff in error appealed to the Board of Public Safety, which sustained the building inspector.


At the time the ordinance was passed the material for the construction of the house had been assembled, but no actual construction work had been done. The building conformed to the line, with the exception of the octagon bay window referred to above, which projected about three feet over the line.


The Supreme Court of the State sustained the statute, saying (p. 752) that it was neither “unreasonable nor unusual” and that the court was “justified in concluding that it was passed by the legislature in good faith, and in the interest of the health, safety, comfort, or convenience of the public, and for the benefit of the property owners generally who are affected by its provisions; and that the enactment tends to accomplish all, or at least some, of these objects.” The court further said that the validity of such legislation is generally recognized and upheld as an exercise of the police power.


Whether it is a valid exercise of the police power is the question in the case, and that power we have defined, as far as it is capable of being defined by general words, a number of times. It is not susceptible of circumstantial precision. It extends, we have said, not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity. C., B. & Q. Ry. Co. v. Drainage Commissioners, 200 U.S. 561. And further, “It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.” District of Columbia v. Brooke, 214 U.S. 138, 149. But necessarily it has its limits and must stop when it encounters the prohibitions of the Constitution. A clash will not, however, be lightly inferred. Governmental power must be flexible and adaptive. Exigencies arise, or even conditions less peremptory, which may call for or suggest legislation, and it may be a struggle in judgment to decide whether it must yield to the higher considerations expressed and determined by the provisions of the Constitution. Noble State Bank v. Haskell, 219 U.S. 104. The point where particular interests or principles balance “cannot be determined by any general formula in advance.” Hudson Water Co. v. McCarter, 209 U.S. 349, 355.


But in all the cases there is the constant admonition both in their rule and examples that when a statute is assailed as offending against the higher guaranties of the Constitution it must clearly do so to justify the courts in declaring it invalid. This condition is urged by defendant in error, and attentive to it we approach the consideration of the ordinance.


It leaves no discretion in the committee on streets as to whether the street line shall or shall not be established in a given case. The action of the committee is determined by two-thirds of the property owners. In other words, part of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent. This we emphasize. One set of owners determine not only the extent of use but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience or welfare served by conferring such power? The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the proper rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest or even capriciously. Taste (for even so arbitrary a thing as taste may control) or judgment may vary in localities, indeed in the same locality. There may be one taste or judgment of comfort or convenience on one side of a street and a different one on the other. There may be diversity in other blocks; and viewing them in succession, their building lines may be continuous or staggering (to adopt a word of the mechanical arts) as the interests of certain of the property owners may prompt against the interests of others. The only discretion, we have seen, which exists in the Street Committee or in the Committee of Public Safety, is in the location of the line, between five and thirty feet. It is hard to understand how public comfort or convenience, much less public health, can be promoted by a line which may be so variously disposed.


We are testing the ordinance by its extreme possibilities to show how in its tendency and instances it enables the convenience or purpose of one set of property owners to control the property right of others, and property determined, as the case may be, for business or residence — even, it may be, the kind of business or character of residence. One person having a two-thirds ownership of a block may have that power against a number having a less collective ownership. If it be said that in the instant case there is no such condition presented, we answer that there is control of the property of plaintiff in error by other owners of property exercised under the ordinance. This, as we have said, is the vice of the ordinance, and makes it, we think, an unreasonable exercise of the police power.


The case requires no further comment. We need not consider the power of a city to establish a building line or regulate the structure or height of buildings. The cases which are cited are not apposite to the present case. The ordinances or statutes which were passed on had more general foundation and a more general purpose, whether exercises of the police power or that of eminent domain. Nor need we consider the cases which distinguish between the esthetic and the material effect of regulations the consideration of which occupies some space in the argument and in the reasoning of the cases.


Judgment reversed and case remanded for further proceedings not inconsistent with this opinion.


Cary v. City of Rapid City,

559 N.W.2d 891 (S.D. 1997)



James S. Nelson and Mark J. Connot of Gunderson, Palmer, Goodsell & Nelson, and Melvin D. Wedmore, Rapid City, for Plaintiff and Appellant.


Tamara M. Pier, Assistant City Attorney, Rapid City, for Defendant and Appellee.


 


Miller, Chief Justice.



Jane Cary petitioned the city of Rapid City, South Dakota, seeking to rezone certain property from a general agricultural classification to a medium density residential classification. The City approved an ordinance granting Cary’s request. Prior to the effective date of the ordinance, certain neighboring property owners filed a written protest of the rezoning pursuant to SDCL 11-4-5. Based on the protest, the ordinance rezoning Cary’s property was blocked.


Cary brought an action seeking a declaratory judgment and a writ of mandamus declaring the rezoning ordinance to be effective. In addition, she requested that the trial court declare SDCL 11-4-5 inapplicable to her property and unconstitutional. The trial court declared SDCL 11-4-5 constitutional and applicable to Cary’s property. Cary appeals. We reverse.


 


FACTS



This matter was presented to the trial court by stipulation of facts. The trial court entered findings of fact (even though findings are superfluous in a stipulated case, Muhlenkort v. Union Cty. Land Trust, 530 N.W.2d 658, 660 (S.D.1995)) and conclusions of law based on the stipulation.


Cary’s property, which is located in southwestern Rapid City, was annexed into the City on September 8, 1992. At the time of annexation, it was classified as “no use” property pursuant to Rapid City Municipal Code 17.26.010. Following annexation, City placed a street assessment of approximately $90,000 on the western portion of the property. Additionally, the property’s real estate taxes were increased from $122.36 in 1990 to $3,678.48 in 1995. The property, however, continued to be used as a horse pasture and generated rental income of $150 per year.


On December 6, 1993, City adopted an ordinance rezoning Cary’s property as “general agriculture” property. The City Planning Department described this rezoning as follows:


The property was zoned General Agriculture following annexation into the City limits.


* * * * * *


The purpose of the General Agriculture zoning of this property was to allow it to be used for agricultural purposes until development was proposed.


As a result of the street assessment and increased property taxes, Cary decided to sell the property. In 1995, she received an offer to purchase which was contingent on the property being rezoned as “medium density residential” to allow construction of apartment buildings. According to the buyers, a medium density residential designation was the lowest zoning classification which would be cost effective and economically viable for the property.


In an attempt to comply with the buyers’ condition, Cary filed a petition with City seeking to rezone the property. She complied with all requirements for rezoning. The Rapid City Fire Department, Engineering Department, Building Inspector and City Planning Department recommended approval of the petition. On September 5, 1995, City approved Ordinance 3224 rezoning Cary’s property as medium density residential property. In accordance with the law, the ordinance was published on September 11, 1995, and scheduled to take effect October 1, 1995. On September 21, 1995, more than forty percent of the neighboring property owners filed a written protest pursuant to SDCL 11-4-5. The protesters owned less than eighteen percent of the property neighboring Cary’s property. Based on the protest, City took the appropriate legal position that the ordinance could not be effectuated because of the provisions of SDCL 11-4-5.


Cary then brought an action in circuit court seeking a declaratory judgment and a writ of mandamus. She asked the trial court to declare Ordinance 3224 effective and require City to rezone the property in compliance with her petition. Additionally, she requested that SDCL 11-4-5 be declared inapplicable to the property or, in the alternative, be declared unconstitutional. The trial court denied her requests. Cary appeals, raising two issues: (1) Whether SDCL 11-4-5 applies to the property; and (2) whether SDCL 11-4-5 is constitutional. Because we find SDCL 11-4-5 to be unconstitutional, we need not address the first issue.


 


DECISION



Whether SDCL 11-4-5 is Constitutional


SDCL 11-4-5 provides:


If such a proposed zoning ordinance be adopted, the same shall be published and take effect as other ordinances unless the referendum be invoked, or unless a written protest be filed with the auditor or clerk, signed by at least forty percent of the owners of equity in the lots included in any proposed district and the lands within one hundred fifty feet from any part of such proposed district measured by excluding streets and alleys. A corporation shall be construed to be a sole owner, and when parcels of land are in the name of more than one person, ownership representation shall be in proportion to the number of signers who join in the petition in relation to the number of owners. In the event such a protest be filed, the ordinance shall not become effective as to the proposed district against which the protest has been filed. Such written protest shall not be allowed as to any ordinance regulating or establishing flood plain areas.


Challenges to the constitutionality of a statute must overcome formidable requirements.


There is a strong presumption that the laws enacted by the legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision. Sedlacek v. South Dakota Teener Baseball Program, 437 N.W.2d 866, 868 (S.D.1989) (citations omitted). See also State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175; Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D.1995); Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995); In re Certification of a Question of Law (Elbe), 372 N.W.2d 113, 116 (SD 1985). If a statute can be construed so as not to violate the constitution, that construction must be adopted. Simpson v. Tobin, 367 N.W.2d 757, 766 (S.D.1985). Relying on our prior holding in State Theatre Co. v. Smith, 276 N.W.2d 259, 264 (S.D.1979), the trial court determined SDCL 11-4-5 to be constitutional. On appeal, Cary argues the protest provision of the statute is unconstitutional1 because it does not provide standards and guidelines for the delegation of legislative authority, nor does it contain a legislative bypass provision to remove the ultimate legislative authority and lawmaking power from the protesters. She claims the absence of such provisions is an unlawful delegation of legislative power that results in a small number of property owners being able to prevent a landowner’s use of property. Cary also contends the holding in State Theatre was in error and is not controlling in the instant case.


The attorney general was provided proper notice of Cary’s challenge to the constitutionality of SDCL 11-4-5.


SDCL 11-4-5 has been the subject of previous constitutional review. In State Theatre, SDCL 11-4-5 was determined to be a consent statute and held constitutional. 276 N.W.2d at 263-64. In determining SDCL 11-4-5 to be constitutional, the State Theatre court stated:


SDCL 11-4-5 is not a typical “protest” statute. Normally enabling acts provide for the filing of protest petitions by a specified number of property owners within a prescribed distance of the land affected by the amendment under consideration. If sufficient protests are filed, a larger affirmative vote of the municipal legislative body than normally needed to enact an ordinance is required to adopt the protested amendment and render the protest ineffective. R. Anderson, American Law of Zoning § 4.33 (2d Ed.1966). These provisions have been held constitutional when challenged as an unlawful delegation of legislative power. Garrity v. District of Columbia, 66 U.S.App. D.C. 256, 86 F.2d 207 (1936); Northwood Properties Co. v. Perkins, 325 Mich. 419, 39 N.W.2d 25 (1949).


SDCL 11-4-5 does allow protest by neighboring property owners but does not include a provision for subsequent municipal legislative action. The statute is, therefore, analogous to what are referred to as “consent” statutes. These statutes require that the consent of a certain number of affected neighbors be obtained before a zoning ordinance is amended. The legislative body has no power to overrule; the neighbors are given the ultimate power to block the amendment. R. Anderson, American Law of Zoning § 4.36.


The validity of consents has long been debated; the absence of standards relating to the giving of consents has been a major ground for the invalidity of consent statutes. There appear to be two categories of consent statutes: those requiring consent to establish a restriction and those requiring consent to waive a restriction. The former are invalid and the latter valid.


276 N.W.2d at 263. The State Theatre court concluded the result of the protest by other property owners was analogous to requiring the consent of a number of affected property owners. Unlike traditional consent statutes, the consent under SDCL 11-4-5 was required after the adoption of the ordinance instead of before the adoption. Id. The court also determined the absence of a statutory provision to provide for a review of the protests by a larger vote of the municipality was indicative of a consent statute rather than a protest statute. Id. Therefore, the State Theatre court concluded SDCL 11-4-5 to be a consent statute. Id. at 264.


For the reasons set forth below, we expressly overrule the holding in State Theatre and conclude SDCL 11-4-5 is unconstitutional.


Initially, we must determine whether SDCL 11-4-5 is a consent statute or a protest statute. When analyzing a statute to determine legislative intent, we must assume the legislature had in mind all provisions relating to the same subject. In re Estate of Smith, 401 N.W.2d 736, 740 (S.D.1987). In SDCL ch 11-4, only SDCL 11-4-9 may require the consent of neighboring landowners as a prerequisite to effectuating a zoning ordinance. Under SDCL 11-4-9, consent of any property owners having a right to protest an ordinance under SDCL 11-4-5 may be required in certain circumstances in the discretion of the governing body. SDCL 11-4-9 provides:


The governing body may by ordinance require as a condition precedent to the introduction of any ordinance proposing changes in the zoning ordinance that there be first filed with the city auditor or clerk the written consent of the owners not exceeding sixty percent of the aggregate area having the right of protest against such proposed ordinance if adopted, determined as provided by § 11-4-5.


SDCL 11-4-5, however, makes no mention of consent as a prerequisite to effectuating a zoning ordinance but, rather, provides that forty percent of neighboring property owners may file a written protest following the adoption of a zoning ordinance. In the event of such a properly filed written protest, the adopted ordinance “shall not become effective.” SDCL 11-4-5.


The express language of SDCL 11-4-9 indicates the legislature’s inclusion of a consent prerequisite in certain situations. SDCL 11-4-5 does not use language requiring consent prior to the adoption of zoning ordinances. Instead, SDCL 11-4-5 specifically uses language allowing written protests to be filed after the adoption of zoning ordinances. SDCL 11-4-9 is a proactive statute which, if exercised by the appropriate governing body, requires consent to rezoning ordinances be secured prior to the adoption of the ordinance. SDCL 11-4-5, on the other hand, is a reactive statute which allows a written protest to block an ordinance following its adoption. The distinction between the language of SDCL 11-4-9 and SDCL 11-4-5 indicates the legislature’s intent to provide two different and distinct methods by which zoning ordinances may be limited. We now conclude, based on the plain language of SDCL 11-4-5, the legislature’s specific inclusion of a consent provision in SDCL 11-4-9 and the intent of the legislature as expressed through all provisions of SDCL ch 11-4, that SDCL 11-4-5 is a protest statute.


Having determined SDCL 11-4-5 to be a protest statute, we now turn to the constitutionality of the statute.


Legislative power is vested in the legislature and this essential power may not be abdicated or delegated. SD Const Art III, § 1; Ind. Community Bankers Ass’n v. State, 346 N.W.2d 737, 743 (S.D.1984); Schryver v. Schirmer, 84 S.D. 352, 171 N.W.2d 634, 635 (1969). When a legislative body retains a police power, articulated standards and guidelines to limit the exercise of the police power are unnecessary. Bashant v. Walter, 78 Misc.2d 64, 355 N.Y.S.2d 39, 44 (N.Y.Sup.Ct.1974). Police powers which are delegated, however, must include minimum standards and guidelines for their application. Id. 355 N.Y.S.2d at 45. The failure to provide standards and guidelines for the application of the police power constitutes a delegation of legislative power repugnant to the due process clause of the Fourteenth Amendment. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 122, 49 S.Ct. 50, 52, 73 L.Ed. 210, 213 (1928); Bashant, 355 N.Y.S.2d at 45.


Zoning ordinances find their justification in the legislative police power exerted for the interest and convenience of the public. Eubank v. Richmond, 226 U.S. 137, 142, 33 S.Ct. 76, 77, 57 L.Ed. 156, 159 (1912). A delegation of this legislative power requires appropriate standards and guidelines. Id. See also Drovers Trust & Savings Bank v. City of Chicago, 18 Ill.2d 476, 165 N.E.2d 314, 315 (1960); Shannon v. City of Forsyth, 205 Mont. 111, 666 P.2d 750, 752 (1983). Additionally, “ ‘in order for an ordinance to comply with the requirements essential to the exercise of police power …, it is essential that there should be an appellate body, such as the City, with the power to review exceptional cases.’ ” Shannon, 666 P.2d at 752 (quoting Freeman v. Board of Adjustment, 97 Mont. 342, 356, 34 P.2d 534, 539 (1934)).


In the instant case, SDCL 11-4-5 does not provide guidelines or standards for protesting an adopted ordinance. So long as a certain number of neighboring property owners file a written petition, those property owners may impose or create restrictions on neighboring property without reason or justification.


A person’s right to use his or her land for any legitimate purpose is constitutionally protected. Seattle Trust, 278 U.S. at 121, 49 S.Ct. at 52, 73 L.Ed. at 213. SDCL 11-4-5, however, allows the use of a person’s property to be held hostage by the will and whims of neighboring landowners without adherence or application of any standards or guidelines. Under SDCL 11-4-5, “the property holders who desire to have the authority to establish a restriction may do so solely for their own interests or even capriciously. Taste (for even so arbitrary a thing as taste may control) or judgment may vary .” Eubank, 226 U.S. at 144, 33 S.Ct. at 77, 57 L.Ed. at 159. Such a standardless protest statute allows for unequal treatment under the law and is in clear contradiction of the protections of the due process clause of the Fourteenth Amendment. See Id.


Furthermore, SDCL 11-4-5 provides no legislative bypass to allow for review of a protest. The filing of a written protest requires that the adopted ordinance “shall not become effective.” SDCL 11-4-5. By allowing forty percent of the neighboring property owners to block the effectuation of an adopted ordinance approved by City, as being consistent with the best interests of the public, SDCL 11-4-5 allows a potentially small number of neighboring property owners to make the ultimate determination of the public’s best interest.2 The absence of a review provision or some method by which a protest is reviewed by a legislative body makes the protest filed under SDCL 11-4-5 determinative and final. See Garrity v. District of Columbia, 66 U.S.App. D.C. 256, 86 F.2d 207 (1936); Northwood Properties v. Perkins, 325 Mich. 419, 39 N.W.2d 25 (1949). The ultimate determination of the public’s best interest is for the legislative body, not a minority of neighboring property owners. See Eubank, 226 U.S. at 143, 33 S.Ct. at 77, 57 L.Ed. at 159. Delegations of legislative authority which allow this ultimate decision to be made by a minority of property owners without an opportunity for review are unlawful. Id.


The protest provision of SDCL 11-4-5 is unconstitutional. We therefore expressly overrule the previous holding of State Theatre to the extent that it conflicts with this ruling.


 


Reversed.


Sabers, Amundson, Konenkap and Gilberston, JJ., concur.




FOOTNOTES

  1. “Ordinarily, we will not rule on the constitutionality of a statute unless the Attorney General has been notified because when an adjudication of unconstitutionality may seriously affect the general public, it is proper for the Attorney General to appear on behalf of the Legislature and the people.” West Two Rivers Ranch v. Pennington Cty., 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687 (citing Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 870 (S.D.1990); Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D.1988)).


  2. As presently written, SDCL 11-4-5 would allow the owner of one small parcel of land within one hundred fifty feet of a large parcel of land to effectively block any proposed use of the large parcel of land so long as the small parcel owner constituted forty percent of neighboring property owners and a written protest was filed.


Buckeye Community Hope Foundation v. City of Cuyahoga Falls,

82 Ohio St. 3d 539, 697 N.E.2d 181 (1998).


Syllabus by the Court


  1. The citizens of a municipality may not exercise powers of referendum, by charter or other means, greater than those powers granted by Section 1f, Article II of the Ohio Constitution.


  2. Pursuant to Section 1f, Article II of the Ohio Constitution, actions taken by a municipal legislative body, whether by ordinance, resolution, or other means, that constitute administrative action, are not subject to referendum proceedings.


  3. The passage by a city council of an ordinance approving a site plan for the development of land, pursuant to existing zoning and other applicable regulations, constitutes administrative action and is not subject to referendum proceedings.

  ON MOTION FOR RECONSIDERATION



Appellant Buckeye Community Hope Foundation (“Buckeye Hope”), a nonprofit Ohio corporation, develops housing for individuals through the use of state grants and tax credits. Buckeye Hope is affiliated with Cuyahoga Housing Partners, Inc. and Buckeye Community Three L.P. (“Buckeye Three”), also appellants herein.


In 1995, Buckeye Three purchased a tract of land in Cuyahoga Falls for the purpose of building a seventy-two unit apartment complex. The land was zoned for multifamily use. Subsequently, the Cuyahoga Falls Planning Commission unanimously approved a site plan concerning the proposed complex. Pursuant to Section 1.7, Article VIII of the Charter of Cuyahoga Falls, the plan was then submitted to the City Council of Cuyahoga Falls for its approval.


On April 1, 1996, the city council ratified the decision of the planning commission by passing Ordinance No. 48-1996. The ordinance provided, in part, that “City Council approves the plan for development of land situated in an R-17 Medium Density Multiple Family zoning district in accordance with such district and zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Planning Commission * * *.”


Following passage of the ordinance, a group of residents of Cuyahoga Falls filed referendum petitions with the clerk of city council. The petitions sought a referendum to approve or reject Ordinance No. 48-1996, pursuant to Section 2, Article IX of the municipal charter, which provides, in relevant part, that the citizens of Cuyahoga Falls “have the power to approve or reject at the polls any ordinance or resolution passed by the Council * * *.” (Emphasis added.) The Summit County Board of Elections then certified that the petitions contained a sufficient number of valid signatures to be placed on the November 1996 ballot.


On May 1, 1996, the appellants filed a complaint against the appellees in the Court of Common Pleas of Summit County, requesting injunctive relief and a declaration that the ordinance could not be challenged by referendum because its passage by the city council was an administrative, rather than legislative, action. Appellants claimed that Section 1f, Article II of the Ohio Constitution did not grant powers of referendum to citizens of municipalities on administrative actions taken by municipal legislative bodies.


The trial court denied the appellants’ request for injunctive relief. The court also determined that the Charter of Cuyahoga Falls permitted the residents of the city to exercise powers of referendum on any action taken by the city council, regardless of whether the action taken was legislative or administrative in nature.


Appellants appealed the decision of the trial court to the Court of Appeals for Summit County. The court of appeals affirmed the judgment of the trial court, holding that Section 1f, Article II of the Ohio Constitution does not limit the referendum powers of charter municipalities such as Cuyahoga Falls.


Pursuant to the allowance of a discretionary appeal, this court affirmed the judgment of the court of appeals. Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 81 Ohio St.3d 559, 692 N.E.2d 997.


The cause is now before this court upon a motion for reconsideration filed by the appellants.



Zeiger & Carpenter, John W. Zeiger, Jeffrey A. Lipps and Michael N. Beekhuizen, Columbus; McFarland Law Office, and J. Drew McFarland, Granville, for appellants.


 


Moyer, Chief Justice.




This court has invoked the reconsideration procedures set forth in S.Ct.Prac.R. XI to “correct decisions which, upon reflection, are deemed to have been made in error.” State ex rel. Huebner v. W. Jefferson Village Council (1995), 75 Ohio St.3d 381, 383, 662 N.E.2d 339, 341. For the reasons that follow, we grant the appellants’ motion for reconsideration and reverse the judgment of the court of appeals.


 


I


Section 3, Article XVIII of the Ohio Constitution grants powers of local self-government to municipalities by providing, “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” In exercising those powers, municipalities may choose to govern themselves by charter in accordance with Section 7, Article XVIII of the Ohio Constitution: “Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”


It is well settled that although the Ohio Constitution grants broad powers of local self-government to municipalities, the scope of those powers is not without limits. In Canton v. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d 285, 337 N.E.2d 766, this court interpreted Section 3, Article XVIII as follows: “This section, adopted in 1912, preserved the supremacy of the state in matters of ‘police, sanitary and other similar regulations,’ while granting municipalities sovereignty in matters of local self-government, limited only by other constitutional provisions.” (Emphasis added.) Id. at 65, 73 O.O.2d at 287, 337 N.E.2d at 769. See, also, State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 20, 577 N.E.2d 645, 647.


In Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the syllabus, we articulated the limits of charter government by stating that “a charter city has all powers of local self-government except to the extent that those powers are taken from it or limited by other provisions of the Constitution or by statutory limitations on the powers of the municipality which the Constitution has authorized the General Assembly to impose.” (Emphasis added.) More recently, we stated that “a municipality that chooses to adopt a charter does so in order to manage its own purely local affairs without interference from the state, with the understanding that these local laws will not conflict with the Constitution and general laws.” (Emphasis added.) Rispo Realty & Dev. Co. v. Parma (1990), 55 Ohio St.3d 101, 102, 564 N.E.2d 425, 426-427.


The City Charter of Cuyahoga Falls provides that voters may exercise powers of referendum on any ordinance or resolution passed by the city council. The appellants contend that this provision conflicts with Section 1f, Article II of the Constitution, which provides, “The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorizedby law to control by legislative action; such powers may be exercised in the manner now or hereafter provided by law.”


Words used in the Constitution are construed according to their usual or customary meaning. See State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 998; R.C. 1.42. Section 1f, Article II reserves referendum powers to the people of “each municipality.” Those words are unambiguous. There is no distinction between charter municipalities and municipalities that have no charter. Additionally, Section 1f, Article II is the sole constitutional source of initiative and referendum powers, reserved by the people of the state to the people of each municipality.


Section 1f, Article II provides initiative and referendum powers only on those questions that municipalities “may now or hereafter be authorized by law to control by legislative action.” We have interpreted this phrase to exclude, from referendum proceedings, administrative actions taken by a city council.1 In Myers v. Schiering (1971), 27 Ohio St.2d 11, 56 O.O.2d 6, 271 N.E.2d 864, we held that “under Section 1f of Article II of the Ohio Constitution, municipal referendum powers are limited to questions which municipalities are ‘authorized by law to control by legislative action.’ ” Myers at paragraph one of the syllabus. There, we determined that the passage of a resolution “granting a permit for the operation of a sanitary landfill, pursuant to an existing zoning regulation, constitutes administrative action and is not subject to referendum proceedings.” Id. at paragraph two of the syllabus. See, also, State ex rel. Srovnal v. Linton (1976), 46 Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764.


The prior majority opinion in this case determined that both Myers and Srovnal were inapposite because neither case presented an issue regarding referendum powers granted by charter. That conclusion was not correct.


The prior majority opinion reasoned that because Section 1f, Article II is not a self-executing provision, charter municipalities enacting ancillary legislation to carry out the principles enunciated in Section 1f, Article II were not restricted to following the statutory initiative and referendum procedures enacted by the General Assembly for non-charter municipalities. Buckeye Hope, 81 Ohio St.3d at 565-566, 692 N.E.2d at 1001-1002. The prior majority opinion then concluded that by virtue of Section 7, Article XVIII, charter municipalities were not limited by Section 1f, Article II to providing referendum powers only for actions legislative in nature. Id. at 566, 692 N.E.2d at 1002.


It is true that charter municipalities, in providing for referendum and initiative powers, are not restricted to the statutory mechanisms for initiative and referendum proceedings that govern non-charter municipalities. Charter provisions may be more restrictive, or less restrictive than those statutory procedures pursuant to the power of local self-government granted by the people under Sections 3 and 7 of Article XVIII, as the prior majority opinion noted. Id. at 565-566, 692 N.E.2d at 1001-1002. However, both the statutory procedures enacted by the General Assembly to carry into effect Section 1f, Article II, and provisions enacted by charter municipalities to do the same, must be consistent with the specific powers granted by Section 1f, Article II, since it is the sole constitutional source for referendum and initiative powers. Otherwise, the meaning of any constitutional provision that is not self-executing, and therefore requires ancillary legislation, could be altered by the words of the legislation carrying the provision into effect.


Accordingly, there is no persuasive reason to deviate from our well-established case law as stated in Myers and Srovnal. Section 1f, Article II clearly limits referendum and initiative powers to questions that are legislative in nature. Charter municipalities are subject to this limitation, as the powers of local self-government granted pursuant to Sections 3 and 7 of Article XVIII are subject to the limitations of other provisions of the Constitution. See Bazell, at paragraph one of the syllabus, and Whitman, 44 Ohio St.2d at 65, 73 O.O.2d at 287, 337 N.E.2d at 769.


The section of the Charter of Cuyahoga Falls providing that voters may exercise powers of referendum on any ordinance or resolution passed by the city council is constitutionally invalid. Voters of Cuyahoga Falls may exercise powers of referendum on any ordinance or resolution that constitutes legislative action. Section 1f, Article II does not authorize the residents of Cuyahoga Falls to initiate referendum proceedings on an action taken by the city council that is not legislative in nature. Section 1f, Article II permits initiative and referendum powers only on those matters that constitute legislative action.


Therefore, we hold that the citizens of a municipality may not exercise powers of referendum, by charter or other means, greater than those powers granted by Section 1f, Article II of the Ohio Constitution.


 


II


The remaining question for our determination is whether the approval of the site plan by the city council constituted administrative or legislative action.


The city argued that the approval of the site plan was a legislative action because the action was taken by adopting an ordinance. In support of its position, the city cited Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500, paragraph two of the syllabus, which states that “the test for determining whether the action of a legislative body is legislative or administrative is whether the action taken is one enacting a law, ordinance or regulation, or executing or administering a law, ordinance or regulation already in existence.”


The question presented to this court in Donnelly was whether the action of a city council in failing to approve the recommendation of the city’s planning commission for a resubdivision of a parcel of real estate constituted legislative or administrative action. Id. at 3, 42 O.O.2d at 2, 233 N.E.2d at 501. This court determined that the action was administrative. Id. at 4, 42 O.O.2d at 3, 233 N.E.2d at 502. In arriving at that conclusion, the court stated, “ ‘The crucial test for determining that which is legislative from that which is administrative or executive is whether the action taken was one already making a law, or executing or administering a law already in existence.’ * * * If, then, the action of a legislative body creates a law, that action is legislative, but if the action of that body consists of executing an existing law, the action is administrative.” (Emphasis added.) Id. at 4, 42 O.O.2d at 2-3, 233 N.E.2d at 502, citing Kelley v. John (1956), 162 Neb. 319, 321, 75 N.W.2d 713, 715. Therefore, paragraph two of the syllabus in Donnelly established that the test requires an examination of the nature of the action taken, rather than the mere form in which it is taken.2 Accordingly, the city’s position that the approval of the site plan was a legislative action because the council took action via an ordinance (rather than by resolution or other means) is in error.


Additionally, the city argued that the ordinance approving the site plan constituted legislative action because city law stated that decisions made by the city council relating to approvals of site plans “shall be considered as legislative rather than administrative actions.” Cuyahoga Falls Zoning Ordinance No. 1171.03(c). This argument also is without merit. The city council cannot designate an action as legislative simply because it desires the action to be legislative. Donnelly requires that the nature of the action taken determines whether it is legislative or administrative, i.e., whether the action creates or establishes law, or whether the action merely applies existing law to a given situation. Donnelly at 4, 42 O.O.2d at 2, 233 N.E.2d at 502. Additionally, it is our constitutional duty, in interpreting the words of Section 1f, Article II, to independently analyze whether the action by the city is a legislative action.


The action taken by the city council here was clearly administrative in nature. Ordinance No. 48-1996 passed by the city council approved a plan for the “development of land * * * in accordance with such district and zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Planning Commission * * *.” The ordinance merely approves the planning commission’s application of existing zoning regulations to the plan submitted by the appellants. The ordinance has no general, prospective application such that the action taken would fit within the usual and customary meaning of the phrase “legislative action” contained in Section 1f, Article II. See Black’s Law Dictionary (6 Ed.1990) 899 (defining “legislative act” as “law * * * passed by legislature in contrast to court-made law. One which prescribes what the law shall be in future cases arising under its provisions.”). Rather, the city council determined the rights of the appellants by applying existing law to the site plan submitted by the appellants. Accordingly, adoption of Ordinance No. 48-1996 was an administrative act, and therefore was not a legislative action that could be subjected to referendum proceedings pursuant to Section 1f, Article II.


Therefore, we hold that pursuant to Section 1f, Article II of the Ohio Constitution, actions taken by a municipal legislative body, whether by ordinance, resolution, or other means, that constitute administrative action, are not subject to referendum proceedings. The passage by a city council of an ordinance approving a site plan for the development of land, pursuant to existing zoning and other applicable regulations, constitutes administrative action and is not subject to referendum proceedings.


Pursuant to S.Ct.Prac.R. XI, the timely filing of a motion for reconsideration temporarily prevents the issuance of a mandate in accordance with the court’s judgment. A timely motion was filed in this cause. Thus, this court has not yet issued a mandate in this action to implement our opinion rendered on May 6, 1998, and reported at 81 Ohio St.3d 559, 692 N.E.2d 997. Under S.Ct.Prac.R. XI(3)(A)(2), where a timely filed motion for reconsideration is granted, a mandate shall issue at the time the Supreme Court’s judgment entry on reconsideration is entered. In accordance with our grant of the motion for reconsideration today, a mandate implementing this opinion shall also issue today.


For the foregoing reasons, we grant the motion for reconsideration and reverse the judgment of the court of appeals.3


Reconsideration granted and judgment reversed.


 


PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.


LUNDBERG STRATTON, J., concurs separately.


DOUGLAS, RESNICK and FRANCIS E. SWEENEY, Sr., JJ., dissent.




Lundberg Stratton, Justice, concurring.



As the justice who changed her vote on an opinion that has already been published, I feel obliged to explain my decision to reconsider and to join the former dissenters in issuing a new majority opinion.


As a trial judge, issues before me were frequently clear, easy to resolve, and more black and white (though certainly not always). However, when a case reaches the Supreme Court, the black and white issues have often been resolved by settlement, fallen by the wayside, or have been resolved by the lower courts by established precedent, case law, or statute. More frequently, the issues we accept for full consideration upon the allowance of a discretionary appeal are now gray-what did the drafters of the United States or the Ohio Constitutions mean by this broad language we must apply to this narrow fact pattern or to this twentieth century technology issue? What did the legislature intend by this confusing statute? Did the legislature even think that the statute would ever be applied as the parties now contend it should be? Who is right-the three very experienced appellate court districts who believe this new law is constitutional or the four other equally learned and respected appellate districts who strongly disagree? Does the court or the General Assembly decide public policy? What if public policy is overriding the constitutional rights of a minority? These are tough issues we struggle with daily, seeking that correct interpretation, that fine balancing of rights. I constantly challenge myself as to whether this is the “right” decision or whether I have reached it because my own judicial philosophy colors my outlook. Am I being an activist or deferring too much to the legislature? There are no simple answers.


Into this difficult mix comes Buckeye Community Hope Found. v. Cuyahoga Falls-that all-too-complex clash between two groups-the developer seeking to move forward on an unpopular but worthy project opposed by the homeowners who do not want that project “in their backyard.” Both sides have valid, strong legal and emotional arguments; both firmly believe in their cause; both look to us to finally resolve the conflict.


I voted with the majority in Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 81 Ohio St.3d 559, 692 N.E.2d 997, because I passionately believe in the rights of the voter. It is the cornerstone of our system of justice.


I grew up in three foreign countries as a daughter of American missionaries. I was born in Thailand and attended boarding schools in South Viet Nam and Malaysia. I saw countries governed by military dictators, by monarchs, by anarchy, and by communists. I came from the outside to this country, where the right to vote, though not always exercised, is one of its most cherished foundations, the basis of its representative form of government. The openness of our government, and the power of our vote to determine who represents us in our government, cannot be fully appreciated until one has lived in countries that do not have those privileges.


Therefore, when I considered the first majority opinion, it seemed the right decision. The people should have the ultimate right to decide their own fate, to be the final arbiters of their community’s course. The majority’s argument was powerful that Home Rule allowed a chartered municipality to grant its voters the final say. That is the strength of our system.


But I forgot in my zeal to affirm the power of the vote that our forefathers carefully fashioned some checks and balances that are equally a cornerstone to our system. Our system of three equal branches, which balance and check each other, does not exist in many other countries, where the legislature or the courts are merely puppets of the executive branch. Yet, to allow any of the three branches to become more powerful than the other two is to create instability in our system. Underlying the three branches is the right to vote, sometimes direct and sometimes representative. The crafters of our Constitution recognized that sometimes our representatives need some distance from the voting so that they can make a decision that may not be popular at the moment, but may be best or right in the long haul. Thus, state representatives have close accountability with two-year terms, senators are more insulated by four-year terms, and the judiciary by six-year terms-still accountable but with greater freedom to act as necessary though it may not be popular.


But predictability and stability are also important to the survival of our system. A mere change of our President cannot wipe out decades of law and statutes, as happens in many countries. The legislature acts as the check against the arbitrary changes of the administrative branch; the courts as a check against both. Homeowners must be secure in the knowledge that their deed to their home will survive the election; businesses must be able to rely on the stability of contracts, zoning laws, tax laws, and laws governing relationships, whether their business is to build factories or to operate a beauty salon. The loss of stability can result in chaos.


In reconsidering Buckeye Community Hope Found., and in weighing all of those heavy thoughts and constitutional issues, about which volumes have been written, I now join the new majority because I believe it has arrived at the right analysis; I now believe my former view was wrong. I see now that the framers of the Ohio Constitution had a good reason for Section 1f, Article II, in limiting the referendum to legislative decisions only. But to apply the referendum to everyday administrative decisions, even if the charter of the municipality so allows (and I am no longer convinced this is what the drafters of the charter intended), is to submit the minutiae of everyday administrative decision-making to the whim of the voter at the moment. The unpopular development, the disfavored contract with a school principal, the neighbor’s new garage approval, or any other decision could be subject to voter disapproval if an angered voter was organized or well-funded enough. Chaos and instability could result. The decisions made by homeowners, developers, schools, or anyone else could no longer depend on established zoning approvals or contracts made-all could be thrown out at whim.


The law of unintended consequences is “the idea that whenever society takes action to change something, there will be unanticipated or unintended effects.” Fortune, Aug., 1996. Sometimes legislative action results in unintentional consequences. Sometimes our actions do also. We make a decision that seems right, constitutional, and just at the time, but cannot always foresee how it can apply in ways we never intended. I now see the danger of my original vote and the wisdom of the original framers of our Constitution in limiting referendums to legislative actions and in not allowing municipalities to exercise powers greater than the Constitution grants. In this case, Section 1f, Article II trumps the Home Rule Amendment. I believe this is what the Constitution intends. I now so vote accordingly.


 


Douglas, Justice, dissenting.



I dissent from the judgment and opinion of the majority. Subsequent to our May 6, 1998 decision in Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 81 Ohio St.3d 559, 692 N.E.2d 997, appellants filed a motion for reconsideration. However, in granting appellants’ motion, the majority has clearly disregarded the requirements of S.Ct.Prac.R. XI. Section 2 of S.Ct.Prac.R. XI provides that a motion for reconsideration shall be confined strictly to the grounds urged for reconsideration and that the motion “shall not constitute a reargument of the case.” Appellants’ motion is premised upon essentially the same arguments that were initially presented to this court. In fact, the motion contains absolutely nothing that warrants a change from our original decision. The majority, however, in rehearing the cause for whatever undisclosed reasons, has conveniently ignored the requirements of S.Ct.Prac.R. XI. Oh well, so much for the rules!


In any event, I also dissent from the judgment and the opinion of the majority because I cannot agree with the majority’s severe restriction of the sacrosanct right of referendum. What is particularly disturbing is that the majority completely ignores the clear wording of the drafters of Section 1f, Article II and turns the enabling provision into an affirmative limitation on the right of referendum. I continue to believe that our original decision in Buckeye is correct, is supported by law, and, most importantly, reflects the fundamental precepts upon which our state and country are based. In that regard it is interesting to recall, during this time of the year, July 4, when we celebrate the founding of our country and our Declaration of Independence, that that sacred document contains the words “that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” (Emphasis added.) Today, the majority tells the citizens of Cuyahoga Falls, and all other communities and citizens likely situated, that what they have voted into their charters means nothing because if the charter provision in question here can be negated by the waving of the four-vote magic wand, then no charter provision is truly sacred. So much for “just powers” being derived “from the consent of the governed.” Given today’s holding, Section 2, Article I of the Ohio Constitution should now read that “all political power is no longer inherent in the people.”


Finally, this case is not about missionaries, separation of powers, length of terms of office, the President, or a “disfavored contract with a school principal.” This case is about Home Rule Charters voted into existence by electors in municipalities all across this state having nothing to do, of course, with the parade of horribles assembled in the concurring opinion. The citizens of a municipality have the authority to establish the means and methods to govern their own affairs.


Accordingly, I dissent. I would deny the motion for reconsideration and follow our decision reported in 81 Ohio St.3d 559, 692 N.E.2d 997, which affirmed the well-reasoned judgment of the court of appeals.


RESNICK and FRANCIS E. SWEENEY, Sr., JJ., concur in the foregoing dissenting opinion.



  1. As a municipal legislative body, city councils may act in an administrative capacity. Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500, paragraph one of the syllabus.


  2. The quoted language in the text of Donnelly is instructive in determining the meaning of paragraph two of the syllabus because paragraph two itself is not stated within the text.


  3. Our earlier opinion, including paragraphs one and two of the syllabus, as reported at 81 Ohio St.3d 559, 692 N.E.2d 997, is hereby nullified in all respects by virtue of our decision today, and thus has no controlling authority.


City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation,

538 U.S. 188 (2003)


 


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.



O’CONNOR, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined, post, p. 200.




Glen D. Nager argued the cause for petitioners. With him on the briefs were Virgil Arrington, Jr., Michael A. Carvin, and Michael S. Fried.


David B. Salmons argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy Solicitor General Clement, Mark L. Gross, and Teresa Kwong.


Edward G. Kramer argued the cause for respondents. With him on the brief were Diane E. Citrino, Kenneth Kowalski, and Michael P. Seng.1


 


Justice O’Connor delivered the opinion of the Court.


 


In 1995, the city of Cuyahoga Falls, Ohio (hereinafter City), submitted to voters a facially neutral referendum petition that called for the repeal of a municipal housing ordinance authorizing construction of a low-income housing complex. The United States Court of Appeals for the Sixth Circuit found genuine issues of material fact with regard to whether the City violated the Equal Protection Clause, the Due Process Clause, and the Fair Housing Act, 82 Stat. 81, as amended, 42 U. S. C. § 3601 et seq., by placing the petition on the ballot. We granted certiorari to determine whether the Sixth Circuit erred in ruling that respondents’ suit against the City could proceed to trial.


 


I


 


 


A


 


In June 1995, respondents Buckeye Community Hope Foundation, a nonprofit corporation dedicated to developing affordable housing through the use of low-income tax credits, and others (hereinafter Buckeye or respondents), purchased land zoned for apartments in Cuyahoga Falls, Ohio. In February 1996, Buckeye submitted a site plan for Pleasant Meadows, a multifamily, low-income housing complex, to the city planning commission. Residents of Cuyahoga Falls immediately expressed opposition to the proposal. See 263 F. 3d 627, 630 (CA6 2001). After respondents agreed to various conditions, including that respondents build an earthen wall surrounded by a fence on one side of the complex, the commission unanimously approved the site plan and submitted it to the city council for final authorization.


As the final approval process unfolded, public opposition to the plan resurfaced and eventually coalesced into a referendum petition drive. See Cuyahoga Falls City Charter, Art. 9, § 2, App. 14 (giving voters “the power to approve or reject at the polls any ordinance or resolution passed by the Council” within 30 days of the ordinance’s passage). At city council meetings and independent gatherings, some of which the mayor attended to express his personal opposition to the site plan, citizens of Cuyahoga Falls voiced various concerns: that the development would cause crime and drug activity to escalate, that families with children would move in, and that the complex would attract a population similar to the one on Prange Drive, the City’s only African-American neighborhood. See, e. g., 263 F. 3d, at 636-637; App. 98, 139, 191; Tr. 182-185, 270, 316. Nevertheless, because the plan met all municipal zoning requirements, the city council approved the project on April 1, 1996, through City Ordinance No. 48-1996.


On April 29, a group of citizens filed a formal petition with the City requesting that the ordinance be repealed or submitted to a popular vote. Pursuant to the charter, which provides that an ordinance challenged by a petition “shall [not] go into effect until approved by a majority” of voters, the filing stayed the implementation of the site plan. Art. 9, § 2, App. 15. On April 30, respondents sought an injunction against the petition in state court, arguing that the Ohio Constitution does not authorize popular referendums on administrative matters. On May 31, the Court of Common Pleas denied the injunction. Civ. No. 96-05-1701 (Summit County), App. to Pet. for Cert. 255a. A month later, respondents nonetheless requested building permits from the City in order to begin construction. On June 26, the city engineer rejected the request after being advised by the city law director that the permits “could not be issued because the site plan ordinance ‘does not take effect’ due to the petitions.” 263 F. 3d, at 633.


In November 1996, the voters of Cuyahoga Falls passed the referendum, thus repealing Ordinance No. 48-1996. In a joint stipulation, however, the parties agreed that the results of the election would not be certified until the litigation over the referendum was resolved. See Stipulation and Jointly Agreed upon Preliminary Injunction Order in No. 5:96 CV 1458 (ND Ohio, Nov. 25, 1996). In July 1998, the Ohio Supreme Court, having initially concluded that the referendum was proper, reversed itself and declared the referendum unconstitutional. 82 Ohio St. 3d 539, 697 N. E. 2d 181 (holding that the Ohio State Constitution authorizes referendums only in relation to legislative acts, not administrative acts, such as the site-plan ordinance). The City subsequently issued the building permits, and Buckeye commenced construction of Pleasant Meadows.


 


B


 


In July 1996, with the state-court litigation still pending, respondents filed suit in federal court against the City and several city officials, seeking an injunction ordering the City to issue the building permits, as well as declaratory and monetary relief. Buckeye alleged that “in allowing a site plan approval ordinance to be submitted to the electors of Cuyahoga Falls through a referendum and in rejecting [its] application for building permits,” the City and its officials violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Fair Housing Act, 42 U. S. C. § 3601. Complaint in No. 5:96 CV 1458 ¶ 1 (ND Ohio, July 5, 1996) (hereinafter Complaint). In June 1997, the District Court dismissed the case against the mayor in his individual capacity but denied the City’s motion for summary judgment on the equal protection and due process claims, concluding that genuine issues of material fact existed as to both claims. 970 F. Supp. 1289, 1308 (ND Ohio 1997). After the Ohio Supreme Court declared the referendum invalid in 1998, thus reducing respondents’ action to a claim for damages for the delay in construction, the City and its officials again moved for summary judgment. On November 19, 1999, the District Court granted the motion on all counts. Civ. No. 5:96 CV 1458, App. to Pet. for Cert. 35a.


The Court of Appeals for the Sixth Circuit reversed. As to respondents’ equal protection claim, the court concluded that they had produced sufficient evidence to go to trial on the allegation that the City, by allowing the referendum petition to stay the implementation of the site plan, gave effect to the racial bias reflected in the public’s opposition to the project. See 263 F. 3d, at 639. The court then held that even if respondents failed to prove intentional discrimination, they stated a valid claim under the Fair Housing Act on the theory that the City’s actions had a disparate impact based on race and family status. See id., at 640. Finally, the court concluded that a genuine issue of material fact existed as to whether the City, by denying respondents the benefit of the lawfully approved site plan, engaged in arbitrary and irrational government conduct in violation of substantive due process. Id., at 644. We granted certiorari, 536 U. S. 938 (2002), and now reverse the constitutional holdings and vacate the Fair Housing Act holding.


 


II


 


Respondents allege that by submitting the petition to the voters and refusing to issue building permits while the petition was pending, the City and its officials violated the Equal Protection Clause. See Complaint ¶ 41. Petitioners claim that the Sixth Circuit went astray by ascribing the motivations of a handful of citizens supportive of the referendum to the City. We agree with petitioners that respondents have failed to present sufficient evidence of an equal protection violation to survive summary judgment.


We have made clear that “[p]roof of racially discriminatory intent or purpose is required” to show a violation of the Equal Protection Clause. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265 (1977) (citing Washington v. Davis, 426 U. S. 229 (1976)). In deciding the equal protection question, the Sixth Circuit erred in relying on cases in which we have subjected enacted, discretionary measures to equal protection scrutiny and treated decisionmakers’ statements as evidence of such intent. See 263 F. 3d, at 634-635 (citing Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448 (1985); Arlington Heights v. Metropolitan Housing Development Corp., supra, at 268; and Hunter v. Erickson, 393 U. S. 385, 392 (1969)). Because respondents claim injury from the referendum petitioning process and not from the referendum itself — which never went into effect — these cases are inapposite. Ultimately, neither of the official acts respondents challenge reflects the intent required to support equal protection liability.


First, in submitting the referendum petition to the voters, the City acted pursuant to the requirements of its charter, which sets out a facially neutral petitioning procedure. See Art. 9, § 2. By placing the referendum on the ballot, the City did not enact the referendum and therefore cannot be said to have given effect to voters’ allegedly discriminatory motives for supporting the petition. Similarly, the city engineer, in refusing to issue the building permits while the referendum was still pending, performed a nondiscretionary, ministerial act. He acted in response to the city law director’s instruction that the building permits “could not … issue” because the charter prohibited a challenged site-plan ordinance from going into effect until “approved by a majority of those voting thereon,” App. 16. See 263 F. 3d, at 633. Respondents point to no evidence suggesting that these official acts were themselves motivated by racial animus. Respondents do not, for example, offer evidence that the City followed the obligations set forth in its charter because of the referendum’s discriminatory purpose, or that city officials would have selectively refused to follow standard charter procedures in a different case.


Instead, to establish discriminatory intent, respondents and the Sixth Circuit both rely heavily on evidence of allegedly discriminatory voter sentiment. See id., at 635-637. But statements made by private individuals in the course of a citizen-driven petition drive, while sometimes relevant to equal protection analysis, see supra, at 194, do not, in and of themselves, constitute state action for the purposes of the Fourteenth Amendment. Cf. Blum v. Yaretsky, 457 U. S. 991, 1002-1003 (1982) (”’[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States’” (quoting Shelley v. Kraemer, 334 U. S. 1, 13 (1948))). Moreover, respondents put forth no evidence that the “private motives [that] triggered” the referendum drive “can fairly be attributed to the State.” Blum v. Yaretsky, supra, at 1004.


In fact, by adhering to charter procedures, city officials enabled public debate on the referendum to take place, thus advancing significant First Amendment interests. In assessing the referendum as a “basic instrument of democratic government,” Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 679 (1976), we have observed that “[p]rovisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice,” James v. Valtierra, 402 U. S. 137, 141 (1971). And our well established First Amendment admonition that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Texas v. Johnson, 491 U. S. 397, 414 (1989),dovetails with the notion that all citizens, regardless of the content of their ideas, have the right to petition their government. Cf. Meyer v. Grant, 486 U. S. 414, 421-422 (1988) (describing the circulation of an initiative petition as “‘core political speech’“); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972) (“[G]overnment may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views”). Again, statements made by decisionmakers or referendum sponsors during deliberation over a referendum may constitute relevant evidence of discriminatory intent in a challenge to an ultimately enacted initiative. See, e. g., Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 471 (1982) (considering statements of initiative sponsors in subjecting enacted referendum to equal protection scrutiny); Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 268. But respondents do not challenge an enacted referendum.


In their brief to this Court, respondents offer an alternative theory of equal protection liability: that city officials, including the mayor, acted in concert with private citizens to prevent Pleasant Meadows from being built because of the race and family status of its likely residents. See Brief for Respondents 12-26; Tr. of Oral Arg. 33-34, 36-40, 43. Respondents allege, among other things, that the city law director prompted disgruntled voters to file the petition, that the city council intentionally delayed its deliberations to thwart the development, and that the mayor stoked the public opposition. See Brief for Respondents 17. Not only did the courts below not directly address this theory of liability, but respondents also appear to have disavowed this claim at oral argument, focusing instead on the denial of the permits. See Tr. of Oral Arg. 37-38.


What is more, respondents never articulated a cognizable legal claim on these grounds. Respondents fail to show that city officials exercised any power over voters’ decisionmaking during the drive, much less the kind of “coercive power” either “overt or covert” that would render the voters’ actions and statements, for all intents and purposes, state action. Blum v. Yaretsky, 457 U. S., at 1004. Nor, as noted above, do respondents show that the voters’ sentiments can be attributed in any way to the state actors against which it has brought suit. See ibid. Indeed, in finding a genuine issue of material fact with regard to intent, the Sixth Circuit relied almost entirely on apparently independent statements by private citizens. See 263 F. 3d, at 635-637. And in dismissing the claim against the mayor in his individual capacity, the District Court found no evidence that he orchestrated the referendum. See 970 F. Supp., at 1321. Respondents thus fail to present an equal protection claim sufficient to survive summary judgment.


 


III


 


In evaluating respondents’ substantive due process claim, the Sixth Circuit found, as a threshold matter, that respondents had a legitimate claim of entitlement to the building permits, and therefore a property interest in those permits, in light of the city council’s approval of the site plan. See 263 F. 3d, at 642. The court then held that respondents had presented sufficient evidence to survive summary judgment on their claim that the City engaged in arbitrary conduct by denying respondents the benefit of the plan. Id., at 644. Both in their complaint and before this Court, respondents contend that the City violated substantive due process, not only for the reason articulated by the Sixth Circuit, but also on the grounds that the City’s submission of an administrative land-use determination to the charter’s referendum procedures constituted per se arbitrary conduct. See Complaint ¶¶ 39, 43; Brief for Respondents 32-49. We find no merit in either claim.


We need not decide whether respondents possessed a property interest in the building permits, because the city engineer’s refusal to issue the permits while the petition was pending in no sense constituted egregious or arbitrary government conduct. See County of Sacramento v. Lewis, 523 U. S. 833, 846 (1998) (noting that in our evaluations of “abusive executive action,” we have held that “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense’“). In light of the charter’s provision that “[n]o such ordinance [challenged by a petition] shall go into effect until approved by a majority of those voting thereon,” Art. 9, § 2, App. 15, the law director’s instruction to the engineer to not issue the permits represented an eminently rational directive. Indeed, the site plan, by law, could not be implemented until the voters passed on the referendum.


Respondents’ second theory of liability has no basis in our precedent. As a matter of federal constitutional law, we have rejected the distinction that respondents ask us to draw, and that the Ohio Supreme Court drew as a matter of state law, between legislative and administrative referendums. In Eastlake v. Forest City Enterprises, Inc., 426 U. S., at 672, 675, we made clear that because all power stems from the people, “[a] referendum cannot … be characterized as a delegation of power,” unlawful unless accompanied by “discernible standards.” The people retain the power to govern through referendum “‘with respect to any matter, legislative or administrative, within the realm of local affairs.’” Id., at 674, n. 9. Cf. James v. Valtierra, 402 U. S. 137. Though the “substantive result” of a referendum may be invalid if it is “arbitrary and capricious,” Eastlake v. Forest City Enterprises, supra, at 676, respondents do not challenge the referendum itself. The subjection of the site-plan ordinance to the City’s referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, did not constitute per se arbitrary government conduct in violation of due process.


 


IV


 


For the reasons detailed above, we reverse the Sixth Circuit’s judgment with regard to respondents’ equal protection and substantive due process claims. The Sixth Circuit also held that respondents’ disparate impact claim under the Fair Housing Act could proceed to trial, 263 F. 3d, at 641, but respondents have now abandoned the claim. See Brief for Respondents 31. We therefore vacate the Sixth Circuit’s disparate impact holding and remand with instructions to dismiss, with prejudice, the relevant portion of the complaint. See Deakins v. Monaghan, 484 U. S. 193, 200 (1988).


The judgment of the United States Court of Appeals for the Sixth Circuit is, accordingly, reversed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.


It is so ordered.


 


Justice Scalia, with whom Justice Thomas joins, concurring.


 


I join the Court’s opinion, including Part III, which concludes that respondents’ assertions of arbitrary government conduct must be rejected. I write separately to observe that, even if there had been arbitrary government conduct, that would not have established the substantive-due-process violation that respondents claim.


It would be absurd to think that all “arbitrary and capricious” government action violates substantive due process — even, for example, the arbitrary and capricious cancellation of a public employee’s parking privileges. The judicially created substantive component of the Due Process Clause protects, we have said, certain “fundamental liberty interest[s]” from deprivation by the government, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S. 702, 721 (1997). Freedom from delay in receiving a building permit is not among these “fundamental liberty interests.” To the contrary, the Takings Clause allows government confiscation of private property so long as it is taken for a public use and just compensation is paid; mere regulation of land use need not be “narrowly tailored” to effectuate a “compelling state interest.” Those who claim “arbitrary” deprivations of nonfundamental liberty interests must look to the Equal Protection Clause, and Graham v. Connor, 490 U. S. 386, 395 (1989), precludes the use of “‘substantive due process’” analysis when a more specific constitutional provision governs.


As for respondents’ assertion that referendums may not be used to decide whether low-income housing may be built on their land: that is not a substantive-due-process claim, but rather a challenge to the procedures by which respondents were deprived of their alleged liberty interest in building on their land. There is nothing procedurally defective about conditioning the right to build low-income housing on the outcome of a popular referendum, cf. James v. Valtierra, 402 U.S. 137 (1971), and the delay in issuing the permit was prescribed by a duly enacted provision of the Cuyahoga Falls City Charter (Art. 9, § 2), which surely constitutes “due process of law,” see Connecticut Dept. of Public Safety v. Doe, ante, p. 8 (SCALIA, J., concurring).


With these observations, I join the Court’s opinion.




FOOTNOTES

  1. Briefs of amici curiae urging reversal were filed for the City of Athens, Ohio, et al. by Barry M. Byron, John E. Gotherman, and Garry E. Hunter; and for the International Municipal Lawyers Association et al. by Henry W. Underhill, Jr., Charles M. Hinton, Jr., and Brad Neighbor.


    Briefs of amici curiae urging affirmance were filed for the Lawyers’ Committee for Civil Rights Under Law et al. by Barbara Arnwine, Thomas J. Henderson, Cheryl L. Ziegler, Eva Jefferson Paterson, Javier N. Maldonado, and Michael Churchill; for the National Association of Home Builders by Thomas Jon Ward; for the National Fair Housing Alliance et al. by Joseph R. Guerra, Thomas Healy, John P. Relman, Meera Trehan, and Robert G. Schwemm; and for the National Multi Housing Council et al. by Leo G. Rydzewski and Clarine Nardi Riddle.


    John H. Findley and Meriem L. Hubbard filed a brief for the Pacific Legal Foundation et al. as amici curiae.

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