City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976)

MR. JUSTICE POWELL, dissenting.

There can be no doubt as to the propriety and legality of submitting generally applicable legislative questions, including zoning provisions, to a popular referendum. But here, the only issue concerned the status of a single small parcel owned by a single "person." This procedure, affording no realistic opportunity for the affected person to be heard, even by the electorate, is fundamentally unfair. The "spot" referendum technique appears to open disquieting opportunities for local government bodies to bypass normal protective procedures for resolving issues affecting individual rights.

1. The Fourteenth Amendment provides: "No State shall . . . deprive any person of . . property, without due process of law. . . ." U.S.Const., Amdt. 14, § 1.

2. The Ohio Supreme Court opinion is reported at 41 Ohio St.2d 187, 324 N.E.2d 74 (1975).

3.

Zoning maps are constantly being changed, for various reasons; and the question is, under what circumstances are such changes justified? . . . The problem is then to develop criteria for distinguishing valid from invalid zoning changes. . . .

1 N. Williams, American Land Planning Law 6 (1974).

Legally, all zoning enabling acts contemplate the possibility of dezoning, the power to amend zoning ordinances serving that purpose. The provisions do not show on their face whether they are intended to remedy particular errors or hardships, or whether they contemplate readjustments called for by the changing character of neighborhoods; undoubtedly, however, they may be made available for either purpose.

Freund, Some Inadequately Discussed Problems of the Law of City Planning and Zoning, 24 Ill.L.Rev. 135, 145 (1929).

For most communities, zoning as long range planning based on generalized legislative facts without regard to the individual facts has proved to be a theoretician’s dream, soon dissolved in a series of zoning map amendments, exceptions and variances -- reflecting, generally, decisions made on individual grounds -- brought about by unanticipated and often unforeseeable events: social and political changes, ecological necessity, location and availability of roads and utilities, economic facts (especially costs of construction and financing), governmental needs, and, as important as any, market and consumer choice.

Kropf v. Cit of Sterling Heights, 391 Mich. 139, 168, 215 N.W.2d 179, 191-192 (1974).

4. "Zoning is a means by which a governmental body can plan for the future -- it may not be used as a means to deny the future." National Land & Investment Co. v. Easttown Township Bd. of Adjustment, 419 Pa. 504, 528, 215 A.2d 597, 610 (1965).

5. The majority distinguished these cases on the ground that

the standardless delegation of power to a limited group of property owners . . . is not to be equated with decisionmaking by the people through the referendum process.

Ante at 678. Whether or not that is a sufficient distinction of those cases insofar as they deal with the adequacy of the city’s procedure, the distinction does not undermine their support for the proposition that the city’s procedure must afford the property owner due process.

6. Fleming was followed by the Supreme Court of Colorado:

Although our early decisions viewed the enactment of rezoning ordinances as a legislative function, the more recent decisions have held such activity to be a quasi-judicial function and reviewable under Rule 106(a)(4). In so doing, we have distinguished between the adjudicative process involved in enacting a rezoning ordinance and the legislative process involved in passing the general zoning ordinance. This distinction was concisely drawn by the Supreme Court of Washington in Fleming v. Tacoma, 81 Wash.2d 292, 502 P.2d 327 (1972).

Snyder v. City of Lakewood, ___ Colo. ___, 542 P.2d 371, 373-374 (1975) (footnotes omitted).

7. One expert on zoning matters has made the following comment:

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). Compare this comment with the practice of another "zoning man." See United States v. Staszcuk, 517 F.2d 53, 56 (CA7 1975).

8. This exceptional bit of legislation is worth reading in its entirety:

SECTION 3. MANDATORY REFERRAL

That any change to the existing land uses or any change whatsoever to any ordinance, or the enactment of any ordinance referring to other regulations controlling the development of land and the selling or leasing or rental of parkways, playgrounds, or other city lands or real property, or for the widening, narrowing, relocating, vacating, or changing the use of any public street, avenue, boulevard, or alley cannot be approved unless and until it shall have been submitted to the Planning Commission, for approval or disapproval. That in the event the city council should approve any of the preceding changes, or enactments, whether . . . approved or disapproved by the Planning Commission it shall not be approved or passed by the declaration of an emergency, and it shall not be effective, but it shall be mandatory that the same be approved by a 55% favorable vote of all votes cast of the qualified electors of the City of Eastlake at the next regular municipal election, if one shall occur not less than sixty (60) or more than one hundred and twenty (120) days after its passage, otherwise at a special election falling on the generally established day of the primary election. Said issue shall be submitted to the electors of the City only after approval of a change of an existing land use by the Council for an applicant, and the applicant agrees to assume all costs of the election and post bond with the city Auditor in an amount estimated by the County Auditor or the Board of Elections proportionate with any other issues that may be on the ballot at the same time. The applicant shall further agree to authorize the City Auditor to advertise, and assume the obligations to pay, for a notice of the posted bond and the requested land use change in a newspaper of general circulation, whose circulation is either the largest, or second to the largest within the limits of the City for two consecutive times, with at least two weeks between notices and a third notice one week prior to the election. Should the land use request not be affirmed by a 55% favorable vote it cannot be presented again for one full year and a new request must be made at that time.

It shall be the duty of any applicant for a land use change to obtain zoning codes, maps, thoroughfare and sewer plans or advice of the city council and officials and approving bodies for interpretation of this section as they are always available. If this section is violated and a building is under construction or completely constructed it shall be mandatory for the Mayor, Safety Director, Service Director and Building Inspector equally to have the building or structure removed completely within 60 days at the owner[’]s expense as these officials are charged with the enforcement of this section. It shall be mandatory that the City Council charge and fund the Planning Commission to have on display at all times in the council chambers and available to the public a zone map, showing a legend and summary of zoning regulations by district, [m]ajor use, [m]inimum and maximum lot width and that each district, city park, playground, and city lands be accurately located and identified with the date of adoption and the date of revisions to date. Any and all revisions will be posted to the zone map within 90 days of their occurrence. Maps shall be available to each land owner of the city for a nominal cost not to exceed $2.50 each on demand. Maps shall be available within six months of this charter change.

9. Both the City Planning Commission and the City Council expressly approved the proposal.

10. There is no support in the record for the speculation in the Court’s opinion, ante at 673 n. 7, that the land use change "would likely entail the provision of additional city services, such as schools and police and fire protection." It seems equally likely that the residents of Eastlake who might move into the new development would also receive such services if they lived elsewhere. Nor is there any support for the speculation that the

change would also diminish the land area available for industrial purposes, thereby affecting Eastlake’s potential economic development.

If that speculation were accurate, it is surprising that the Planning Commission and the Council approved the change.

11. Indeed, the city never even tried to enforce that requirement; for when respondent refused to post the bond to cover the cost, the city went ahead and held the election anyway.

12.

But, in restricting individual rights by exercise of the police power, neither a municipal corporation nor the state legislature itself can deprive an individual of property rights by a plebiscite of neighbors or for their benefit. . . .

Benner v. Tribbitt, 190 Md 6, 20, 57 A.2d 346, 353 (1948).

The determination of a petition for a variance cannot be determined by a poll of the sentiment of the neighborhood.

Town of Homecroft v. Macbeth, 238 Ind. 57, 62-63, 148 N.E.2d 563, 566 (1958).

It is also not a proper exercise of such authority to base their decision [on a rezoning] merely on "strenuous objections of residents of the Town," as [the Board] does in reason (3). Such remonstrances may be heard and taken into consideration, but they may not be permitted to control the board’s decision. Heffernan v. Zoning Board, 50 R.I. 26, 144 A. 674. A poll of the neighborhood to weigh the conflicting wishes of the residents or landowners in the vicinity is not the purpose of the hearing.

Kent v. Zoning Board of Town of Barrington, 74 R.I. 89, 92, 58 A.2d 623, 624 (1948).

Rather, the comprehensive plan is the essence of zoning. Without it, there can be no rational allocation of land use. It is the insurance that the public welfare is being served and that zoning does not become nothing more than just a Gallup poll.

(Emphasis added.) Udell v. Haas, 21 N.Y.2d 463, 469, 235 N.E.2d 897, 900-901 (1968).

13.

While the referendum provision of the statute has not heretofore been construed by this court, we believe that the reasonable and proper construction of the statute supports the position of the plaintiff to the effect that the referendum-election provision applies only to a comprehensive type of zoning ordinance, and does not apply to an altering or amending ordinance.

Minneapolis-Honeywell Regulator Co. v. Nadasdy, 247 Minn. 159, 165, 76 N.W.2d 670, 675 (1956).

14.

The issue is whether an amendment to a city zoning ordinance changing the zoning of particular property is subject to a referendary vote of the electors of the city.

We hold that such a change in zoning is not subject to referendum. The right of referendum extends only to legislative acts. A change in the zoning of particular property, although in form (amendment of a zoning ordinance) and in traditional analysis thought to be legislative action, is, in substance, an administrative, not legislative, act.

West v. City of Portage, 392 Mich. 458, 460-461, 221 N.W.2d 303, 304 (1974).

An ordinance changing the classification of property from residential to business use after the adoption of a comprehensive zoning plan is an administrative or executive matter, and not subject to referendum laws applicable to municipalities.

Kelley v. John, 162 Neb. 319, 75 N.W.2d 713, 714 (1956) (syllabus by the court).

The City of Washington Terrace has in effect a master zoning plan ordinance. Subsequent to its adoption, the City Council passed an ordinance changing the classification of certain property from residential to commercial use. . . .

The ordinance in question was passed after the requested change had been studied and recommended by the planning commission and after a public hearing had been held. The determinative question is whether or not the action of the City Council was administrative or legislative. If the former, it is not subject to referendum. We so hold, based upon logic and prior decisions of this court. If each change in a zoning classification were to be submitted to a vote of the city electors, any master plan would be rendered inoperative. Such changes are administrative acts implementing the comprehensive plan and adjusting it to current conditions.

(Emphasis added.) Bird v. Sorenson, 16 Utah 2d 1-2, 394 P.2d 808 (1964).

15. James v. Valtierra, 402 U.S. 137, sustained the "use of referendums to give citizens a voice on questions of public policy." Id. at 141. The approval of a publicly financed housing project, which might "lead to large expenditures of local governmental funds for increased public services and to lower tax revenues," id. at 143, raises policy questions not involved in a zoning change for a private property owner. That case presented no due process or other procedural issue.

16. The final footnote in the Court’s opinion identifies two reasons why the referendum procedure is not fundamentally unfair. Both reasons are consistent with my assumption that there is virtually no possibility that an individual property owner could be expected to have his application for a proposed land use change decided on the merits.

The first of the Court’s reasons is that, if "hardship" is shown, "administrative relief is potentially available"; that "potential" relief, however, applies only to some undefined class of claims that does not include this respondent’s. A procedure in one case does not become constitutionally sufficient because some other procedure might be available in some other case.

The second of the Court’s reasons is that there is a judicial remedy available if the zoning ordinance is so arbitrary that it is invalid on substantive due process grounds. This reason is also inapplicable to this case. There is no claim that the city’s zoning plan is arbitrary or unconstitutional, even as applied to respondent’s parcel. But if there is a constitutional right to fundamental fairness in the procedure applicable to an ordinary request for an amendment to the zoning applicable to an individual parcel, that right is not vindicated by the opportunity to make a substantive due process attack on the ordinance itself.