Planning & Environmental Law Friend of the Court — May 2008

A Friend of the Court

Editor's Note: As space permits, we will include summaries of cases in which APA has participated as amicus curiae in a new column — 'A Friend of the Court.' We begin with the case Richard Babcock participated in, City of Eastlake.

Here are the facts. A real estate developer purchases an eight-acre parcel zoned "light industrial." He then seeks approval from the city planning commission to rezone the property to permit construction of a multifamily, high-rise apartment building. The planning commission recommends approval, and the city council accepts the recommendation and approves the requested rezoning. However, in this community, the city charter requires that after the city council approves a rezoning application, it must also be approved by a 55 percent vote of the public in a referendum. In essence, the public gets to veto the city council.

Before the referendum occurs, the developer files suit, asking the state court to declare the referendum provision in the city charter unconstitutional. He argues it's an unconstitutional delegation of legislative power to the people. While his lawsuit is pending, his rezoning is defeated in a referendum.

The trial court upholds the city charter, as does the court of appeals, but the developer doesn't give up. He eventually finds success in the state supreme court. The state's highest court concludes that the city charter provision is a delegation of power that violates the guarantee of due process in the federal constitution, because voters are given no standards to guide their decision at the ballot box.

Democracy in action or ballot box zoning run amok? These facts reached the U.S. Supreme Court 32 years ago in City of Eastlake, et al., v. Forest City Enterprises, Inc., 426 U.S. 668 (1976), and the planning profession weighed in as an amicus curiae through APA's predecessor organizations, the American Society of Planning Officials and the American Institute of Planners.

The amicus brief, authored by Richard F. Babcock, David L. Callies, and R. Marlin Smith, is an eloquent argument for fairness. Fifty years earlier, the Court found zoning was constitutional because it was based on a deliberate and carefully studied planning process (Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)). It was the quality of this deliberation and the fairness of the process that was considered essential to ensure due process. The authors explained the important distinction between legislative and adjudicatory decisions: The first might be proper subjects for a referendum, but certainly not the latter. Footnote 12 of the planners' amicus brief included a quote from The Zoning Game.

The freedom from accountability of the municipal governing body may be tolerable in those cases where the legislature is engaged in legislating but it makes no sense where the legislature is dispensing or refusing to dispense special grants. When the local legislature acts to pass general laws applicable generally it is performing its traditional role and it is entitled to be free from those strictures we place upon an agency that is charged with granting or denying special privileges to particular persons. When the municipal legislature crosses over into the role of hearing and passing on individual petitions in adversary proceedings it should be required to meet the same procedural standards we expect from a traditional administrative agency.
(R. Babcock, The Zoning Game 158 (1966))

The developer saw his "win" at the Ohio Supreme Court vanish when Chief Justice Burger, joined by five of his colleagues, concluded the city's referendum provision was constitutional. It could not be properly characterized as a delegation of power because "[t]he power is one reserved by the People to themselves, and the charter provision permitting voters to decide whether zoned use of property could be altered is not invalid on federal constitutional grounds." The majority deftly sidestepped the due process and fairness issues raised by the planners, but Justice Stevens, writing a strong dissent and joined by Justice Brennan, hit those issues head-on.

I have no doubt about the validity of the initiative or the referendum as an appropriate method of deciding questions of community policy. I think it is equally clear that the popular vote is not an acceptable method of adjudicating the rights of individual litigants. The problem presented by this case is unique, because it may involve a three-sided controversy, in which there is at least potential conflict between the rights of the property owner and the rights of his neighbors, and also potential conflict with the public interest in preserving the city's basic zoning plan. If the latter aspect of the controversy were predominant, the referendum would be an acceptable procedure. On the other hand, when the record indicates without contradiction that there is no threat to the general public interest in preserving the city's plan as it does in this case, since respondent's proposal was approved by both the Planning Commission and the City Council and there has been no allegation that the use of this eight-acre parcel for apartments rather than light industry would adversely affect the community or raise any policy issue of citywide concern I think the case should be treated as one in which it is essential that the private property owner be given a fair opportunity to have his claim determined on its merits. (426 U.S. at 693)

Often an amicus never knows what impact its argument might have had on the Court's decision, but in City of Eastlake v. Forest City Enterprises, the impact was clear. Justice Stevens paid Richard Babcock and the other authors a high compliment by quoting Footnote 12 verbatim and citing many of the references provided by the planners. Their argument for fairness resonated with the dissenters. You can read their amicus brief in full and the Eastlake opinion at www.planning.org/amicusbriefs.