*1 v. FOREST CITY OF EASTLAKE CITY et al. ENTERPRISES, INC. Argued March 1976 Decided June 74-1563. No. *2 J., opinion Court, C. delivered the
Burger, in which JJ., Stewart, White, Marshall, BlachmuN, Rehnquist, joined. Powell, J., dissenting p. filed opinion, post, a 680. SteveNS, J., dissenting filed a opinion, BreNNAN, J., joined, post, which p. 680. Melvin J. Andrews argued the cause and filed briefs for petitioners.
William D. Ginn argued respondent. the cause for With him on the brief Hughes Michael were M. L. Stephen Buescher.* *Briefs of urging amici curiae by reversal were filed J. Evelle Younger, Attorney General, Carl Attorney Boronkay, Assistant Gen-
eral, and Roderick Attorneys Walston and Jacobs, Deputy Richard C. General, for the California; by Barry Byron State of M. for the city Ohio, Euclid, al.; et Robert city R. Soltis for the Heights, Ohio, Garfield al. et Briefs urging of amici curiae affirmance were filed J. William Brown, Attorney General, and Earl M. Latanick, Mam and David G. Attorneys Assistant General, for the Ohio; by State of Richard F. Babcock, David Callies, L. and R. Marlin Smith for the National Burger opinion delivered Justice
Me. Chief the Court. city charter a this case is whether question to be rati- changes land use requiring proposed
provision due cast violates of the votes fied 55% change. for a applies who rights of a landowner has Cleveland, suburb of a Eastlake, Ohio, municipal ordi- in a codified zoning plan comprehensive acquired an developer, a real estate Respondent, nance. “light zoned in Eastlake parcel of real estate eight-acre purchase. the time of industrial” uses at Planning to the May respondent applied In permit construction zoning change Commission building. The Plan- high-rise apartment multifamily, *3 change to proposed recommended the ning Commission procedures Eastlake's City which under Council, the Planning Commission's accept reject or the could either the by popular vote, Meanwhile, recommendation. require to city charter amended the voters of Eastlake agreed by to the Council changes in land use any that City referendum.1 The by vote in a be approved 55% Peterson, aJL.; by A. Paul Builders et Association of Home and Diego Stephen MehaMck, Poliak for the San and J. James B. Assn, et Building Contractors al. City by voters, VIH, 3, of the Eastlake adopted the As Art. § part: provides pertinent Charter any change any change existing land uses or what- “That any approved unless and until ordinance . . cannot be soever . Planning Commission, for submitted to the it shall have been in the council should approval disapproval. or That event any preceding changes, enactments, approve of the or whether approved disapproved by Planning or Commission it shall not emergency, approved passed the declaration of an be mandatory effective, it the same not be but shall be shall approved favorable vote of all votes cast 55% qualified City regular at the next munici- electors of of Eastlake pal sixty (60) if one occur not less than or more than election, shall approved Council the Planning Commission’s recommen- dation for respondent’s reclassification of per- mit proposed project. Respondent applied then the Planning Commission for “parking yard” ap- proval for the proposed building. The Commission re- jected the application, ground City Council's rezoning yet action had not been submitted the voters for ratification.
Respondent then filed an action in court, state seek- ing a judgment declaring provision the charter invalid as an delegation unconstitutional legislative power to the people.2 While the case was pending, Council’s action was submitted to a but the referendum, proposed zoning change approved was not requi- 55% site margin. Following the the Court election, of Common Pleas and the Ohio Court Appeals sus- tained provision.3 the charter
The Ohio Supreme Court reversed. Ohio 2d St. 187, 324 N. E. 2d 740 Concluding that enact- ment provisions and rezoning legislative is a function, the court held that popular twenty (120) days one hundred passage, after its otherwise special falling at a generally election on the day of the established primary election. . .”. 2Respondent also contended that the charter amendment could apply rezoning to its application application pend since the was *4 ing at the time the adopted. amendment was The Court of Com rejected mon argument. Pleas the Respondent appealed neither point argued this nor in the Appeals Court of or the Ohio Supreme Court; the issue is therefore not before us. 3The Pleas, Court of Common however, invalidated the charter provision requiring assessment of against election costs the affected In affirming, owner. Appeals the Court upheld also portion of the trial judgment. appeal court’s No was taken to Supreme the Ohio question on this Court issue. The was, accord ingly, passed the State Court, and is therefore not before us.
672 guide to decision of
requirement, lacking the standards in exercised permitted police power the the voters, arbitrary manner. standardless, capricious hence Washington ex rel. Relying on this Court’s decisions 116 Roberge, (1928), Trust Seattle Co. v. 278 U. S. Chicago, 242 (1917), Thomas Cusack Co. v. U. 626 S. Richmond, 226 U. 137 but distin- (1912), Eubank v. S. Valtierra, (1971), James v. the guishing U. S. consti- provision court concluded that referendum the legislative tuted unlawful delegation power.4 an We reverse.
I The violates fed- conclusion that Eastlake’s guarantees upon proposition eral constitutional rests the legis- delegation referendum involves a A power. however, lative be charac- cannot, power. terized constitu- delegation as Under our tional power all derives from people, assumptions, who delegate can it to representative instruments which they g., create. The See, (J. e. Federalist Mad- No. ison) In establishing people . can legislative bodies, reserve power directly to themselves to deal matters with which might assigned legislature. otherwise be to the Erickson, Hunter v. S. (1969).5 U. power of such reservation is the basis for the 4Respondent requirement did not challenge the 55%-aiBrmative Instead, respondent as any mandatory such. contended that refer regardless requisite provision, endum margin approval, applied violated due as its rezoning application. people Ohio, in establishing general assembly, provided: legislative power
“The state shall be vested a General Assembly but people . . . reserve to themselves propose Assembly General laws and amendments to the con- stitution, adopt reject polls the same on a at referen- dum Ohio Const., II, . . .” vote . Art. 1.§ *5 day town to this meeting, tradition which continues practical symbolic part States as both a some processes.6 our democratic simi- The referendum, ais means for direct political allow- larly, participation, people ing amounting the final veto decision, representative over power, enactments The bodies. practice is designed “give ques- citizens a voice on public Valtierra, tions policy.” James supra, at 141.
In framing people state of Ohio constitution, specifically reserved the of referendum to the people of municipality each within the State.
“The powers initiative and referendum hereby are reserved to people municipality of each on all questions which such municipalities may now or by hereafter be authorized law control legisla- tive action Const., II, § Ohio Art. If. To subject to Ohio’s referendum procedure, question must be one within scope legislative power. expressly The Ohio Court found that Council’s action in rezoning respondent’s eight acres from light industrial high-density residential use was legislative nature.7 in, Distinguishing between ad- ministrative legislative acts, separated the court power to or zone rezone, passage amendment of a
6 Massachusetts, In example, the inhabitants could convene meeting purpose a town for the regulating Wolf, nuisances. DeA. Meeting: The Town A Manual (1890). of Massachusetts Law 136 generally Bryan, Meeting See Town Supported Government Still Vermont, (1972). Nat. R. Civic requested land change use respondent likely would provision entail the services, of additional such as schools and police protection. and fire Valtierra, Cf. James v. 402 U. S. n. would also diminish the land area thereby available purposes, industrial affecting po Eastlake’s development. tential economic
674 from relief power grant from the
zoning ordinance, found function was unnecessary hardship.8 The former Duluth, Denney v. legislative Accord, in nature.9 to be (1972) ; 2d 895-896 892, 295 202 N. 22, 28-29, Minn. W. 444, Livingston, Super. 106 N. J. Township Smith v. of Borough Wollen v. (1969); 90 85, 256 A. 2d 454, of 142 2d 888-889 Lee, 881, A. 408, 422, Fort 27 N. J. City 826, 49 Cal. 2d Johnston (1958); Claremont, City Dwyer v. (1958); 323 2d 76-77 835-836, 71, P. Council, (1927) ; 515, 932, 200 253 P. 935-936 505, Cal. Euclid, 110 Ohio Realty, City South Hilltop Inc. v. Kelley v. (1960). Compare E. 2d 180 App. 535, 164 N. In re 713 with John, (1956), 75 W. 2d 162 Neb. N. Frank, 2d 722, 723, 183 Neb. N. W. nature, zoning significantly with owners’ uses By its “interferes” market It is diminution of property. hornbook law “[m]ere personal plans and property interference owner’s
value or with zoning property is to invalidate a desires relative to his insufficient rezoning.” Mc- him or 8 E. ordinance or to entitle to a variance (3d 1965). p. ed., Ill Quillan, Municipal Corporations §25.44, existing course, no contention in this case that There is, zoning respondent’s property renders valueless or other classification respondent when ac wise diminishes its value below the value quired it. may of initiative or referendum be reserved or con administrative, any matter, legislative respect ferred “with McQuillan, Municipal within the realm of local affairs 5 E. . . .” . (3d 1969). p. ed., However, the Ohio Corporations §16.54, only changes Supreme granted Court land use concluded legislative capacity subject acting in a were to the Council when process. binding interpretation referendum Under the court’s law, unnecessary seeking hardship state owner relief from by zoning subject occasioned restrictions not be to Eastlake’s would procedure. example, changes referendum For if unforeseeable future give owner, rise to hardship holding Supreme on the Ohio provides subject Court avenues of relief not administrative process.
II Supreme The Ohio further Court concluded that “delega- amendment charter constituted tion” of power guar- violative federal constitutional antees because the voters no given were standards to guide their decision. Under Eastlake’s procedure, Ohio Court no mechanism existed, reasoned, nor indeed could to assure that the voters would exist, rationally act in passing upon a proposed change. *7 This meant “appropriate legislative action [would] dependent upon made potentially arbitrary and unreasonable whims of public.” 41 voting Ohio St. 2d, at 324 195, 2d, N. E. at 746. potential for arbitrariness in the the court process, violated concluded, process. due
Courts have frequently held other contexts that a congressional delegation of power to regulatory entity a accompanied must be by discernible so that standards, the delegatee's action can be measured its fidelity to legislative will. See, g., States, e. Yakus v. United 321 U. 414 (1944); Amalgamated S. Meat Cutters v. Connally, 337 F. Supp. (DC 1971). FEA Cf. v. SNG, Algonquin ante, p. generally 548. E. Mc See Quillan, Municipal Corporations 521-522 pp. § 25.161, (3d 1965); ed. Note, 1972 Duke L. 122. J. Assuming, arguendo, their relevance governmental to state func tions, these cases involved a delegation power by legislature to regulatory bodies, directly which are not responsible to the people; this doctrine inapplicable where, as here, rather than dealing delegation with a power, we deal with a power people reserved themselves.10
10The Ohio Supreme analysis requirements Court’s of the flowing standards from the sweeps Fourteenth Amendment also broadly. Except too legislative history analysis as a informs an process require- due on federal its claim basing
In Realty Ambler Euclid invokes v. also respondent ments, rely on the but it does Co., 272 U. S. (1926), Euclid, case. Under teaching of that direct if measure restriction challenge owner can no sub- having “clearly arbitrary and unreasonable, morals, public safety, relation to the health, stantial If Id., at 395. the substantive general welfare.” arbitrary capricious, result of the referendum is then the fact bearing police power, no relation save wish so would not the voters Eastlake invalidating the restriction. As this Court held by referendum: charter amendment enacted subject is itself sovereignty people “The limitations have been those constitutional which Hunter duly unrepealed.” remain v. adopted and Erickson, 393 U. atS., 392. Assembly, Colorado Gen. 377 U.
See also Lucas v. S. (1964); Virginia 736-737 West State Educ. Bd. of Barnette, U. S. *8 in Euclid contemplated
But no of the sort challenge Realty Supreme v. Ambler is before us. Ohio Court The respondent did not does not the hold, argue, present zoning comprehen- classification under Eastlake’s legislative action, of there is no more advance assurance that a by conscientiously legislative body applying act consistent will respect example, there standards than there is with to voters. For certainty is no in the Council this case would act on explicit the basis of “standards” or otherwise in Eastlake’s comprehensive zoning any is there assurance that ordinance. Nor townspeople assembling meeting, people in a as the of East- town do, Erickson, Hunter (1969), lake could 393 U. S. 392 will act according to The in- consistent standards. critical constitutional rather, quiry, zoning produces arbitrary is whether the restriction capricious results.
677 sive ordinance in principles violates the established Euclid v. Ambler Realty. If the respondent considers referendum result itself to unreasonable, the restriction is open challenge court, in where the state scope of the would remedy respondent state available to be determined as a as as under law, matter state well Fourteenth being so, Amendment standards. That nothing by required more is the Constitution.11 in
Nothing our with this conclu cases inconsistent sion. by Two of this the decisions Court were relied Ohio Supreme in invalidating procedure. Court Eastlake’s The thread common both decisions is delegation legislative power, originally given people leg islative and in turn body, delegated legislature narrow segment people of the not to the community, large. at In Richmond, 137 Eubank v. 226 U. S. the Court invalidated a ordinance which (1912), conferred to establish lines building setback upon the owners two-thirds of the property abutting any Washington street. ex rel. Seattle Similarly, Title Roberge, Trust Co. v. U. S. (1928), Court struck down an permitted ordinance which establishment of philanthropic homes for aged only residential but areas, upon the written consent the owners two-thirds within 400 feet proposed facility.12 solely Court of Ohio rested its decision on the Due Process Clause of the Fourteenth Amendment. See Ohio 187, 196, St. 2d only E. 2d N. ques presented tions in the petition this Court con certiorari validity cern the that due holding. Pet. Cert. 2. Accordingly, we confine ourselves to considering whether due process challenged denied charter amendment. *9 The Ohio Court also considered this Court's decision in Thomas Chicago, Cusack Co. (1917). 242 U. S. In contrast Roberge, to Eubank and upheld the Cusack Court neighborhood Roberge involved a referendum
Neither Eubank nor the standardless case; such as we have procedure this own- group property to a limited delegation Roberge is in Eubank by the Court ers condemned people decisionmaking by with equated not to be Appeals process. The Court through the referendum way: put it this for the Ninth Circuit than an ex- “A is far more however, referendum, pref- neighborhood ambiguously founded pression of through its legislating It is the itself erence. of their traditional exercise the voters voters —an legislation to override through direct views right what serves representatives as to of their elected Spanish Southern Alameda public interest.” City, California, v. Union Speaking Organization 2d F. Valtierra, Cali- upholding Our in James v. decision mandatory requirement, confirms fornia’s Black, Court in speaking for the this view. Justice Mr. case, said: of a people all “This ensures that which in a decision community will have a voice governmental of local may large expenditures lead property owners to waive provision permitted consent which This of billboards. municipal prohibiting the construction restriction way: following in the distinguished Eubank in Cusack Court building left the establishment ordinance Eubank] “[The gave then . lot owners should act and . . line untouched until the absolutely The ordinance in the case at bar to it the effect law. any permits this prohibits the erection of billboards . . . but persons who prohibition be modified with the consent of S., are to be most affected such modification.” U. at 531. simply appli- otherwise Since the owners could waive an legislative limitation, cable the Court in Cusack determined that provision delegate legislative power Ibid. did not at all.
679 funds for increased public . services .. S.,U. at (emphasis added).
Mr. Justice Black went on say that a referendum procedure, such as the at one issue here, is a classic dem- onstration of “devotion democracy . Id., .” . . at 141. As a basic instrument of democratic government, referendum process does in not, itself, violate the'Due Process Clause of the Fourteenth Amendment when applied rezoning to a ordinance.13 Since the rezoning decision in this case properly was reserved to people of Eastlake under the Ohio Constitution, the Ohio Su- preme holding Court erred in invalid, consti- federal tutional grounds, the permitting charter amendment voters decide whether zoned of respondent’s use property could be altered. judgment of the Ohio Supreme Court is reversed, expressed proposition The fears rest on the dissent “fundamentally ; at here is issue unfair” to landowners potentially
this fails to take into account the mechanisms for relief changes desired available to owners whose land use are rejected by First, hardship by zoning the voters. if is occasioned restrictions, potentially Indeed, administrative relief available. very zoning purpose of “variances” allowed officials is to avoid unnecessary McQuillan, “practical hardship.” difficulties 8 E. (3d 1965). Municipal Corporations §25.159, p. As we ed. noted, supra, at remedies remain available under the Ohio Su preme provide holding challenge means Court’s unreason Realty arbitrary Co., able or Euclid Ambler action. 272 U. S. presented zoning The situation case not this one action denigrating depreciating land; the use or instead, the value an involves effort a reasonable restriction. No existing rights being impaired; rights are use being sought new are Thus, from the seeking this ease involves an owner’s Council. approval of a new use from the free restrictions to the land attached acquired. when it was proceedings further the case is remanded opinion. this
inconsistent with remanded.
Reversed and *11 dissenting. Powell, Mr. Justice legality propriety as to the There can be no doubt questions, legislative generally applicable of submitting referendum. popular a including zoning provisions, single the status of only issue concerned But here the proce- This single “person.” parcel owned small for the affected opportunity no affording realistic dure, by the is fundamen- person heard, electorate, to be even appears technique “spot” referendum tally unfair. government for local open disquieting opportunities for re- protective procedures normal bypass bodies rights. issues individual solving affecting Bren- whom Mr. Stevens, Mr. Justice with Justice dissenting. joins, nan meeting process city’s on the town reliance critical is- decisionmaking tends to obfuscate two (1) the pro- this issues whether
sues in case. These are city deciding grant employs cedure which a in the zon- deny property request owner’s for a ing comply his must with the Due Process property Amendment; (2) so, if of the Clause Fourteenth employed by city of Eastlake whether the fundamentally fair?
I theory city on might rule in We favor respondent requirement deprive the referendum did Due Process any and therefore the interest wholly all, respond- Clause is After when inapplicable.1 provides: “No shall . 1 The Fourteenth Amendment State . . any property, due deprive person . . without . Const., law . . .” Arndt. 1. . U. S. § ent bought light this it was zoned for parcel, industrial use and it still retains that classification. The Court adopt any does not such rationale; nor, indeed, does the argument. even advance that On the contrary, throughout litigation everyone this has with- assumed, out discussing the that the problem, Due Process Clause apply. does Both authority reason and support assumption.2
Subject to limitations imposed common law nuisance and restrictions, the owner real prop- erty right has the to develop his land to his own eco- nomic advantage. As land to become continues more and as land scarce, planning constantly use becomes more sophisticated, opportunities needs and the un- of specific parcels foreseen uses continually of real estate increase. For that no reason, comprehensive matter how *12 plan may a zoning be, regularly some contains mecha- granting nism for or amendments, exemptions variances, specific specific pieces property.3 for uses of No re- reported The opinion Ohio Court 2d at Ohio St. (1976). 2d 324 N. E. 3“Zoning constantly maps being changed, reasons; are for various question is, changes and the under what circumstances are such justified? problem develop . . The . is then for dis criteria tinguishing zoning changes valid from invalid Williams, IN. . . . (1974). Planning American Land Law 6
“Legally, enabling zoning contemplate all acts possibility dezoning, zoning to amend serving pur- ordinances that pose. provisions The they do not on their show face whether are remedy particular hardships, intended to or errors or whether they contemplate readjustments changing called for character of neighborhoods; undoubtedly, they may however, be made available Freund, purpose.” Inadequately for either Some Discussed Prob- City Planning Zoning, lems the Law 24 Ill. L. Rev. communities, zoning “For most long range planning as based generalized legislative regard facts without to the individual proved dream, facts has to be a theoretician’s soon in dissolved a for wholly the need deny plan could prepared sponsibly change.4 future unforeseeable presently affecting legislation zoning unlike code is other A zoning deprivation caused property. use of property customarily by recognizing qualified code is variance or right apply an amendment owner’s that expectancy his individual needs. accommodate plan the basic changes consistent with particular normal merits is a on their frequently will be allowed governing ownership. When incident such a to seek body opportunity the owner offers priv- opportunity is denominated that —whether affording protection or a owner’s ilege right —it legitimate property. in use of his making interest pe- any (like owner other The fact that an individual to the may legal right or not have plaintiff) titioner right that he has no relief he seeks does not mean his the consideration of the merits procedure fair regularly provide a The fact codes application. that exceptions changes, granting individual cases changes granted individual the fact that such are particular great frequency, with and the fact changes contemplates in the before code record us sup- all plan allowed, with the basic will be consistent zoning map amendments, exceptions series variances —reflect- generally, grounds brought decisions made on individual about ing, — unanticipated politi- and often events: social and unforeseeable *13 changes, ecological necessity, availability and cal location of roads utilities, facts of (especially economic costs construction and needs, financing), governmental and, important any, as as market Kropf Sterling Heights, and consumer choice.” v. 391 of 139, 168, 179, (1974). 2d 215 N. W. 191-192 Mich. by “Zoning body governmental plan a means which a can may deny be used as a means to the future —it future.” Township National Investment Land & Co. v. Easttown Bd. of Adjustment, 504, 528, 2d Pa. 215 A.
port my opinion that the opportunity apply for an an aspect amendment of property ownership pro- tected the Due Process Clause of the Fourteenth Amendment.
This conclusion is supported the few cases in this Court which have by many decided zoning questions, well-reasoned state-court In Eubank decisions. both v. City Richmond, 137, Washington ex rel. U. S. Seattle Title Trust Roberge, Co. 278 U. S.
Court invalidated procedural ordinances for In reasons. Eubank the Court held that of imposing method building-line restriction on a property owner was de Roberge, fective. In which is analogous more to this the Court case, invalidated the requirement owners of property two-thirds of the within 400 feet must give their approval plaintiff’s proposed to the use of his property. both Implicitly, cases hold that making affecting decisions of particular pieces the use property must meet constitutional standards.5
Although this Court has only decided a handful of literally cases, disputes thousands of zoning have been resolved state courts. Those courts have re- peatedly identified the obvious difference between the adoption of comprehensive citywide by legislative plan action particular and the decision of involving issues specific of specific parcels. uses In the former situation there is generally great the judgment deference to majority distinguished ground these cases on the “the delegation group standardless prop to a limited erty equated owners is not decisionmaking by with ... people through process.” Ante, at 678. Whether or not that is a they sufficient distinction those cases insofar as adequacy city’s procedure, deal with the distinction support does not proposition city’s undermine their for the that the must afford the process. owner due *14 in situation state courts have the latter legislature; injustice. to correct manifest hesitated by Supreme the plainly The was drawn distinction Court Oregon: of general policies without laying down
“Ordinances usually an property are regard specific piece to a of lim- subject to legislative are authority, exercise of consti- may only upon be review, ited and attacked authority. of arbitrary for an abuse grounds tutional On determination whether hand, the other a of should permissible specific piece use of a usually judicial author- changed is an exercise altogether dif- ity propriety subject its to an Comm’rs, County Fasano Board ferent test.” 26 (1973). P. 2d 580-581, 264 Ore. point Washington made And the Court of way: in this may be either administrative
"Zoning decisions the act. legislative depending upon or nature importance their nature or But, whatever zoning deci- purposes, for other categorization their code which an amendment sions deal with arrived must be or reclassification of land thereunder they fairly. made, are which at plan adoption comprehensive subsequent to the a basically adjudicatory. zoning code, body legislative municipal when a “Generally, zoning code it comprehensive plan enacts a amending But in policy making capacity. acts land reclassifying thereunder, zoning code, adjudication between makes an body, effect, same and those proponents rights sought zoning change. opponents claimed readily are are affected whose interests parties questions pub- Although important identifiable. *15 lie policy may permeate zoning amendment, the decision has a greater impact far on group one citizens than on public generally.” the Fleming v. City Tacoma, 81 292, Wash. 2d 502 298-299, 2dP. 327, (1972) (citations 331 omitted).6 Specialists in practice the of zoning law are unhappily potential familiar with the for abuse which exists when inadequate procedural safeguards apply dispen- to the of special grants. power sation deny arbitrarily may give rise the to exact intolerable condi- tions.7 The insistence on fair in this area
6 Fleming Supreme was followed the Court of Colorado: early “Although rezoning our decisions viewed enactment of legislative function, ordinances as a the more recent decisions have activity quasi-judicial held such to be a function and reviewable (a) (4). under doing, Rule 106 In so we distinguished have between adjudicative process enacting rezoning in involved ordinance legislative process and the in passing general involved zoning concisely This ordinance. distinction was drawn Fleming of Washington Tacoma, Court in 292, v. 81 2d Wash. - (1972).” Snyder 2d 327 Lakewood, -, P. Colo. (1975) (footnotes 542 P. omitted). 2d 373-374 expert One matters has made the following comment: “The freedom accountability from the municipal governing body may be legislature tolerable those cases where the is engaged legislating but it makes legislature no sense where the dispensing refusing or dispense special grants. When local legislature pass general acts applicable generally laws per- it is forming its traditional role and it is entitled to be free from those place upon agency charged strictures we an granting with denying special privileges particular persons. When municipal legislature hearing crosses over into the role of pass- ing petitions on individual in adversary proceedings it should be required procedural to meet the same expect standards we from a agency.” Babcock, traditional administrative R. Zoning Game (1966). Compare practice this comment with the of another “zoning Staszcuk, man.” See United States v. F. 2d (CA7 1975). Due purpose of the squarely
of the law falls within Fourteenth Amendment. of the Process Clause
II purpose procedure for a state we examine When the constitutional comports with deciding whether may give that a State process, the fact standard of due in- otherwise should save an “legislative” it a label def- give some however, procedure. should, We valid highest court conclusion of erence to the *16 arbitrary un- represents an and that the State problem. way handling a local of reasonable at the conclu- In Ohio courts arrived this the case, city of of the of the charter VIII, 3,§ sion Art. wholly is amended on November Eastlake, as case has At no the stages.8 stage of invalid in three reading its legislation is worth exceptional bit of This entirety: Mandatory Referral 3. “Section any change any existing whatso- change the land uses or “That to any referring ordinance, ordinance any or the enactment ever development land and the controlling regulations the to other city or other leasing playgrounds, selling parkways, or or rental of re-locating, widening, narrowing, property, real or for the lands or avenue, any public street, boule- vacating, changing or the use vard, alley approved unless and until been or cannot be shall have it Commission, approval disapproval. Planning or submitted the any city approve preced- of the That in the the council should event by changes, enactments, approved disapproved . or ing whether . or . by passed Planning approved it not be or the the Commission shall effective, emergency, it declaration of an and shall not be but it by mandatory approved shall that the same be favorable be 55% qualified City of the electors of the of Eastlake vote of all votes cast election, regular municipal if shall not less at the next one occur (120) days sixty (60) twenty than or more than one hundred and special falling passage, after its otherwise at a on the election generally day primary of the election. shall established Said issue City only approval be submitted to the electors of of a after any suggestion respondent's proposed there been its property city's use of would be inconsistent with the zoning plan,9 any impact basic or would have change existing of an applicant, land use Council for and an applicant agrees post assume all costs of the election and city County bond with Auditor an amount estimated any Auditor or the Board proportionate of Elections with other may applicant issues that be on the ballot at the same time. The agree shall further City advertise, to authorize the Auditor to and obligations assume the pay, posted for a notice of the bond and requested change newspaper general land use in a circula- tion, largest, largest whose is circulation either the or second to the times, within the limits for two consecutive with at least two between prior weeks notices a third notice one week request to the election. Should the land use affirmed presented again year favorable cannot be for one vote full 55% request and a new must be made at that time. duty any applicant “It shall be for a land use codes, maps, thoroughfare plans obtain sewer or advice approving council officials and bodies inter- pretation they always this section as If are available. this section building and a completely violated under construction *17 mandatory be Mayor, Safety Director, constructed shall for the Building Director and Inspector equally Service to have the build- ing completely days or structure removed within 60 at the owner[’]s expense as these charged officials are with the enforcement of this mandatory City It shall be charge section. that the Council and Planning fund the Commission to display have at all times in the council chambers public and available to map, the a zone show- ing legend summary and zoning regulations by district, [m]ajor use, and maximum district, city width that [m]inimum and each lot park, city playground, accurately and lands be located and identi- fied with adoption the date of and the date of revisions to date. Any posted and all revisions will be map days to the zone within 90 of their Maps occurrence. shall be available to each land owner city $2.50 a nominal cost not to exceed each on demand. Maps shall be available within six months change.” of this charter City Both Planning the Commission the City Council expressly approved proposal. the city’s or.adversely potential affect the budget
municipal development.10 economic pay owner that the requirement the
First, in the was invalidated special the cost of the election Second, Appeals.11 and in the Ohio Court trial court refer- mandatory Court held that Ohio "clearly purported insofar as it endum invalid” was approved apply change land use ex- Without capacity.” “in administrative Council an properly charac- action is plaining when the Council’s the court administrative, legislative terized instead of as in this case was though approval even then held that its requirement was legislative, entire The court reasoned: invalid. procedures requires
“Due
of law
that
such
structured
municipal power
exercise
munici-
among competing
choices
that fundamental
organ of
responsible
pal policies are resolved
municipality
It
that a
government.
requires
also
against
arbitrary
exercise
protect
individuals
pol-
fundamental
municipal
by assuring that
power,
icy
underlying the exercise of that
are
choices
organ municipal
responsible
articulated
some
speculation
the Court’s
support
no
in the record for the
There is
likely
opinion, ante,
use
at 673 n.
the land
“would
services,
po
as
provision
entail the
additional
such
schools
equally likely
protection.”
It
that the residents of
lice and fire
seems
development
might move into the new
would also
Eastlake who
any
they
if
lived elsewhere. Nor is there
receive such services
“change
support
speculation that
would also diminish
for the
thereby affecting
purposes,
for industrial
land area available
development.”
potential
speculation
Eastlake’s
economic
If that
accurate,
Planning
surprising
were
it is
Commission
*18
change.
approved
the Council
city
Indeed,
requirement;
never even tried to enforce that
respondent
cost,
post
when
refused to
the bond to cover the
anyway.
went
held the election
ahead and
government. McGautha v.
(1971),
California
U.
183,
S.
270.
The Eastlake
provision
charter
ignored these
concepts
blatantly delegated legis-
lative authority, with no assurance
result
thereby
reached
would be reasonable or rational.
For
provision
these reasons,
clearly
violates the
due
clause of the Fourteenth Amendment.”
(1975) (footnote omitted). concurring opinion expressed additional reasons for regarding the requirement arbitrary. as Speaking for four members of the Ohio Supreme Court, Justice Stern stated:
“There can be little doubt of the true purpose of Eastlake’s provision charter change is to obstruct —it in land use, rendering change such so burdensome prohibitive. as to be provision charter was apparently adopted specifically, prevent to multi- family housing, adopted and indeed was while Forest City’s application for rezoning permit multi- family housing project pending City was before the Planning City Commission Council. The re- purpose strictive of the provision crudely appar- Any ent on its face. change, regardless of regardless how minor, approval by its Planning Commission and Council, must be approved by city-wide pro- referendum. The posed change must receive, simple rather than a ma- at jority, percent least a 55 Fi- affirmative vote. nally, property the owner required of the affected is pay although pro- the cost election, gives exactly vision no hint as which costs would be billed to a owner. this;
“There is no subtlety simply an at- tempt expensive render difficult and under the guise democracy. of popular *19 the char- provisions harsher stripped of its
“Even mandatory, A problems. poses serious ter provision any zoning applies city-wide which referendum af- decisions necessity, of submit change must, thousands property to use of his person’s fect one property. in that whatever of no interest voters with this same adoption of only imagine the We need By as such a a such Cleveland. provision in gasoline station rezoning a corner provision, hundreds of thousands approval of require would few of living away, them miles voters, of most of in the This interest matter. slightest with the them seriously and would caprice, government would be property. private ownership right of dilute the person the use a makes recognizes law inevitably neighbors his affect his must community. surrounding cases, in some and, to be balanced interests are entitled These real but a law against rights property owner; of a proposes who a requires property owner, a which the as- wholly benign property, use his obtain interest, with no such persons sent of thousands Id., beyond any public purpose.” reasonable goes 2d, at 324 N. E. at 748-749. 199-200, of the Ohio Court recognized, As the Justices de- provision we are concerned with the fairness a right particular particu- use of a termining to make In such state courts have parcel cases, lar land. frequently capricious described the character of a decision by majority sentiment than supported rather reference to they Moreover, articulable standards.12 have limited restricting rights “But in police individual exercise of the corporation municipal legislature neither nor state itself deprive rights plebiscite an of property can individual statutory procedures only approv- apply comprehensive zoning opposed als of ordinances as affecting amendments This parcels.13 specific conclusion *20 supported characterizing has been particular amend- as of an plan ments “administrative” and revision entire 14 “legislative.” as Tribbitt, neighbors 6, for .” Benner or their benefit. . v. 190 . Md. 346, 20, (1948). 2d 57 A. 353 petition “The determination of a a variance be deter- cannot poll neighborhood.”
mined
a
of the sentiment of the
Town of
Macbeth,
v.
62-63,
563,
57,
238 Ind.
148
2d
566
N. E.
Homecroft
(1958).
“It
proper
authority
is also not a
exercise of such
to base their
merely
rezoning]
objections
decision
a
of
[on
‘strenuous
residents
of the Town’ as
does in
(3).
reason
[the
Such remon-
Board]
may
they
strances
be heard and taken into consideration but
may
permitted
not be
to control the board’s
decision. Heffernan
Zoning Board,
26,
poll
neighborhood
I.
“We hold that such zoning subject is not to referen- characterized Supreme Court the Ohio
In this case “legis- proposal as respondent’s approval the Council's have charac- courts would many I state think lative.” may courts thus “administrative.” terized it as to this apply of the label differ in their selection well among state agreement I find substantial but action, citywide requiring that proposition tribunals on the this proposal like particular of a approval Surely my is view. manifestly unreasonable. the interested of fair The essence their to have opportunity a reasonable parties given be only legislative acts. A right extends of referendum dum. although in form zoning particular property, change in the analysis ordinance) (amendment in traditional of a administrative, thought legislative action, an is in substance *21 City Portage, 460- legislative, 458, act.” West v. 392 Mich. not of (1974). 461, 303, 2d 304 W.N. changing property resi- “An ordinance the classification of from comprehensive adoption dential to business use after the of a zon- subject ing plan matter, is an administrative or executive and not municipalities.” Kelley John, applicable to to referendum laws v. (1956) (syllabus 2d the Neb. N. W. court). City Washington zoning
“The of Terrace has in effect a master Subsequent plan adoption, City ordinance. its passed the Council changing an ordinance the classification of certain from residential to commercial use. . . . question requested
“The
in
passed
change
ordinance
was
after the
had been
planning
studied and recommended
commission
the
public hearing
and after a
had been held. The determinative
question
City
is whether or not the action of the
Council was
legislative.
former,
subject
administrative or
the
it
If
hold,
upon logic
We so
based
prior
and
decisions of
referendum.
this court.
each
in a
be
were to
If
classification
city electors, any
plan
submitted to a vote
the
master
would
of
inoperative.
be
changes
rendered
Such
are administrative acts
implementing
comprehensive plan
adjusting
the
it to current
(Emphasis added.)
conditions.”
Sorenson,
Bird
2d
Utah
1-2,
I validity have no doubt about the of the initiative or the referendum as an method of appropriate deciding I questions community policy.15 equally think it is popular acceptable clear that the is not an vote method adjudicating rights individual litigants. The problem presented by this case because it unique, may involve a three-sided in which there is at controversy, potential least conflict rights between the prop- erty owner and rights his and also neighbors, potential public conflict with the interest in preserving city’s basic If zoning plan. aspect the latter controversy were the referendum would be predominant, an acceptable procedure. On the other when hand, record indicates without contradiction that there is no threat general public interest preserving the city’s plan does this case, respondent’s since —as proposal approved by was both Planning Commission Council and has there been no allegation of this eight-acre use parcel for apartments rather light industry than would adversely affect the community any or raise policy citywide issue con- cern —I think the case should be treated as one in which *22 it is essential private that property owner be given altierra, James v. V U. S. sustained the “use of referen give dums to questions citizens a voice on public policy.” Id., at The approval 141. publicly of a financed housing project, might large expenditures which “lead to governmental of local funds for public increased services and to lower tax revenues,” id., at questions policy raises not zoning involved in change for a private property presented owner. That case no due or procedural other issue. on its determined claim his to have opportunity a fair merits. concurring opinion, in his out points
As Justice Stern whether to decide referendum to use a be absurd it would particular on a operated could be station gasoline isus before The case city in the Cleveland. corner only that there are told we are not that clear because an Conceivably, Eastlake. in people 20,000 sufficiently dramatic could development be eight-acre community; it the entire legitimate interest of arouse the would of the voters that most is also conceivable of build- wisdom uninformed about indifferent and factory on a warehouse apartments rather than ing of these is silent which eight these acres. The record ordinance probable. alternatives is the more Since path of manifestly obstacle in the places a unreasonable any since every property seeking owner change, par- provides procedures exempting no standards or parcels require- ticular or claims from the referendum justification no and since the record contains ment, I procedure persuaded the Use this am case, respect judiciary's that we should appraisal state the fundamental fairness of this decisionmaking process in this ease.16 opinion The final footnote in the Court’s identifies two reasons
why procedure fundamentally is not unfair. Both my assumption reasons are virtually consistent with that there is possibility no expected that an individual owner could be application proposed his have for a land use decided on the merits. first of the Court’s reasons is “hardship” shown, that if potentially
“administrative relief available”; “potential” relief, however, only applies to some undefined class of claims that does respondent’s. include this procedure A in one case does constitutionally not become sufficient because some other might be available some other case. second Court’s reasons is judicial there is a *23 I therefore conclude that the Ohio Court correctly held that Art. VIII, § charter Eastlake violates the Due Process Clause of the Fourteenth Amendment, and that its judgment should be affirmed. remedy zoning available if arbitrary is ordinance so that it is process invalid due grounds. substantive This is also reason inapplicable to city’s this case. There is no claim zoning plan arbitrary is or unconstitutional, respondent’s as even applied parcel. if right But there a constitutional fair- fundamental ness in applicable ordinary request to an for an amendment to applicable an parcel, individual right opportunity not vindicated to make a substantive due attack on the ordinance itself.