EASTLAKE v. FOREST CITY ENTERPRISES, INC.

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Argument of J. Melvin Andrews

Chief Justice Warren E. Burger: We will hear arguments next in 1563, City of Eastlake against Forest City Enterprises.

Mr. Andrews.

Mr. J. Melvin Andrews: Mr. Chief Justice, may it please the Court.

The City of Eastlake is located approximately 15 miles of East of Cleveland in the State of Ohio and it is has about 20,000 people.

It is a city which operates under a charter type of government, which under the Ohio constitution grants to the city all rights of local self Government, and it grants to the people sovereign rights and so far, they do not conflict with the Ohio Constitution or general laws.

The City of Eastlake had adopted a general zoning plan, some 25 years ago, in which the entire city is zoned into various districts for industrial business and residential use.

The general zoning plan of the city of Eastlake did not under attack in this case.

In May of 1971, Forest City respondent herein asked or requested a rezoning of an eight acre parcel of land from a limited industrial use to a multiple family use for the purpose of building multiple housing.

The record does not disclose the type of multiple housing rather it would be very expensive apartments or the lower economic variety.

At any rate, the Planning Commission of the city of Eastlake approved this rezoning request and in the meantime, the voters by initiative petition had made an amendment to the Eastlake City charter requiring that before any rezoning of land becomes finally effective, it must be submitted to a 55% majority vote of the people.

Now, the City Council then approved the rezoning request of Forest city and under the Eastlake Charter Amendment, it was submitted for a vote of the people and failed to achieve or receive the 55% affirmative vote necessary for its passage.

Forest City then applied to the Local Court of Common Pleas requesting injunctive relief and declaratory judgment asking that the Court declare the Eastlake Charter Amendment to be unconstitutional and the Court of Common pleas affirmed the Constitutionality of the Eastlake Charter Amendment and subsequently in the Court of Appeals – the Eastlake Charter Amendment was affirmed.

And then, in the Ohio Supreme Court, the decision was reversed and the Ohio Supreme Court found a reasonable use of property by rezoning may not be made dependent upon the potentially, arbitrary and unreasonable whims of the voting public without violating Due Process under the Fourteenth Amendment to the Federal Constitution.

It is important to note that the Ohio Supreme Court did not find the Eastlake Charter Amendment to violate the Ohio Constitution or the General Laws of the State of Ohio even though this was contended by the respondents throughout.

The issue in this case is whether the mandatory referendum voting procedure of the Eastlake Charter relative to rezoning constitutes unlawful delegation of legislative power to the electorate in violation of the Federal Constitution.

I believe basically that the Ohio Supreme Court got the cart before the horse because the delegation as power is not from the council to the people but it is exactly the opposite under the charter and under the Ohio Constitution.

The power is given by the people to the council.

They can give as much of the power to the council as they desire or they can retain it onto themselves.

Really, what is involved here, we believe is a struggle on a local issue between whether the final power of rezoning shall reside in the city council, or whether it shall reside in the people.

The Supreme Court has placed in jeopardy the final power of the people in respect to rezoning.

Unknown Speaker: Your entire argument is based upon hypothesis that zoning is a legislative function, is that correct?

Mr. J. Melvin Andrews: That is correct.

Now, the history of Ohio without exception has made a determination that rezoning a property is a legislative act and as such, subject to referendum.

Unknown Speaker: Now, a variance would probably be administrative quasi- judicial act, is that right?

Mr. J. Melvin Andrews: That is right.

We are not talking a variance here nor on hardship, nor administering of the act.

Unknown Speaker: On the general zoning provision.

Mr. J. Melvin Andrews: That is right.

The basic thinking is as long as the people have the initial right to enact zoning ordinances, then they also have the right of change.

Because if that were not so, then the final power of zoning would vest in the council and not in the people.

We believe, that my basic position is, this is just a pure local issue as to where that power should be vested.

Unknown Speaker: If one thought of zoning, generally zoning as a judicial or Quasi-judicial function, you could not make the arguments you are making, could you?

Mr. J. Melvin Andrews: There are cases throughout United States where they have called rezoning, a Quasi-judicial Act or an administrative act and attempted to get around the referendum because the referendum even on Ohio is restricted to Legislative Act.

But the Ohio Supreme Court even in this case, found this to be a Legislative Act and cited the Ohio law which backs that up.

Unknown Speaker: Under the Ohio law, it has traditionally been considered a Legislative function?

Mr. J. Melvin Andrews: That is correct, Your Honor.

Justice William H. Rehnquist: Is there any claim here that the existing use of the property, existing industrial zoning was an unreasonable classification?

Mr. J. Melvin Andrews: Absolutely not.

This is the basic problem here that there is no claim whatsoever that the existing zoning classification of the property, the industrial zone classification is any matter unreasonable.

There is no claim that there is any economic damage to the respondent here by virtue of the failure of the city rezoning.

No, this property maybe equally valuable as industrial property, maybe more so than it would as multiple family zone housing.

There is no – nothing in the record to show that it would be good city planning to rezone the property as request.

In fact, the proposed parcel is located directly between industry and business zone property.

The very purpose or the reason that this came into being is that the respondent here is a very large developer property throughout the Ohio District, and the history has been such that they can go into a given community and exercise much power of control over the council and so the city of Eastlake residents felt rightly or wrongly that Forest City had too much sway over council and that council is making these decisions not because of what is good for the city but because of pressures and so forth what was good for Forest City.

And the very traditional concept of referendum, was to sort of counterbalance the wealthy and entrenched, so that the people could reserve themselves the power to in effect veto, the actions of their council if they did not like them.

Justice William H. Rehnquist: What if in Ohio, what if the city subjected rezoning or variances to referendum?

Mr. J. Melvin Andrews: There is a difference.

Justice William H. Rehnquist: let us suppose (Inaudible), what Federal constitutional provision is implicated by that?

Mr. J. Melvin Andrews: The only way we got into the federal implication is that the Ohio Supreme Court may know finding of any violation of Ohio law but said that this procedure violated the Fourteenth Amendment of the Federal Constitution.

Our premise is that --

Unknown Speaker: In what respect?

Well, I understand this but in my example, what provision of the Federal Constitution do you think might be implicated?

Mr. J. Melvin Andrews: Well, they said that the Fourteenth Amendment that there was--

Unknown Speaker: How about you?

What do you think?

Mr. J. Melvin Andrews: I do not believe there is any – I do not believe it is a question for Federal Constitutional constraint at all.

I think it is a pure local issue--

Unknown Speaker: Do you think that the local legislative bodies could leave to the electorate, all questions of rezoning or variances?

Mr. J. Melvin Andrews: Rezoning, I mean, there are two different things.

Variance is administrative probably--

Unknown Speaker: Just take the variance then, just take the variance.

Mr. J. Melvin Andrews: Probably, a variance is usually given to a Board of Appeals and generally speaking, I think variance is to be considered administrative.

Probably-

Justice William H. Rehnquist: What if they are, then what provision does the Federal Constitution be implicated if those decisions were subject to referendum?

Mr. J. Melvin Andrews: I do not believe there would be any.

I think the line is drawn here.

We go back to the Ambler Reality Case, 1926, in which this Court, in its initial case finding the general zoning to be valid under the police powers, said number one, that it had to be reasonable and secondly it had to pass certain test, it has to bear a reasonable resemblance to the public health safety, morals and welfare.

I believe that if the final decision of the council people and so forth, violates those safeguards of Ambler, then on a case-by-case basis, then it should be determined whether or not it is non-constitution restriction, but in the absence of that, I do not believe that the Federal Constitution has anything to do with the decision of the people so long as the decision is reasonable as it applies to any given property.

Unknown Speaker: What if the State of Ohio should make every decision of the Supreme Court of Ohio subject to popular recall, referendum?

Would that violate the Federal Constitution?

Mr. J. Melvin Andrews: Would you repeat that please.

Unknown Speaker: Let us say, this Ohio State Legislature provided that every decision of the Ohio Supreme Court upon initiative of 5% of the people could be subject to referendum and recall in i.e. popular overruling, would that violate the Federal Constitution?

Mr. J. Melvin Andrews: I agree.

This is far field from our issues here.

I do not know that I can--

Unknown Speaker: I do not think it is very far field in theory, at least arguably.

Mr. J. Melvin Andrews: No, I do not believe that Court decisions constitutionally can be made to subject of a vote of people and everything.

Unknown Speaker: (Inaudible)

Mr. J. Melvin Andrews: Pardon?

I believe that legislation matters (Voice Overlap)

Unknown Speaker: (Inaudible) command any division of power, separates the powers in the state systems?

Justice William H. Rehnquist: What if you had a provision under Ohio Statute that set after a criminal defendants trial in the Court of Common Pleas, the verdict will then be submitted to a referendum of the people in that county and if they found him guilty even if the jury and the Court of Common Pleas had found him innocent, he would be regarded as guilty.

Mr. J. Melvin Andrews: No, I do not believe that people would have that power.

Unknown Speaker: (Voice overlap) Sixth and Fourteenth Amendments but the Supreme Court of Ohio hypothesis does not involve those, does it?

Mr. J. Melvin Andrews: Well, like I said, it requires so much.

I just have not considered that kind of a question here.

I think that we are into a different area.

I think we are dealing here with the local decision not with Court decision that we are dealing legislative matters which are subject to vote of the people.

Now, whether judicial matter is subject to vote of people is another question.

I do not think it involved here.

Chief Justice Warren E. Burger: If this is decision solely on Ohio law, would you be here?

Mr. J. Melvin Andrews: It would have been much more difficult to be here but the Ohio Supreme Court has placed this entirely upon the Federal Constitution basis and in effect by their silence, it has held that this does not violate Ohio Constitutional or general laws.

Unknown Speaker: May I go back over a simple majority rather than a 55%?

Mr. J. Melvin Andrews: I think that there will be no difference, whatsoever.

The traditional concept of Ohio Law and I have quoted all of these various decision in my briefs but, many of the statues of Ohio require 55%, 60%, and 65% majority.

Unknown Speaker: Here is whether they were right in saying that merely submitting it to a referendum violated the Fourteenth Amendment?

Mr. J. Melvin Andrews: That is right and that is the precise issue that we are talking here and this is exactly what the respondent contends.

That it is the procedure by which this is given to the people that they are arguing about.

They do not seem to say that there is anything wrong with having referendum on zoning matters as long as there is 10% petition circulated but the moment you eliminate that 10% petition and say it would be by automatic referendum then they say that is not correct.

But anyhow, really, this does not make that much change because in the zoning procedures under the Eastlake charter and this is traditional method, first of all it goes to the Planning Commission and then there is a public hearing for the Planning Commission, then it goes to the City Council as it plans a public hearing for city planning – City Council.

This far, the amendment makes no change whatsoever, if City Council turns the change down it makes no difference.

It is only in the event that City Council approves the proposed rezoning that for the first time does this amendment come in to play and then it says before that decision of City Council becomes final then it must be approved by a majority vote of people.

Now, if we have a voter whose property of rezoning is destined to become a subject referendum by the 10% petition, it makes no difference at all other than the fact the electors have to circulate their 10% petition.

And in the other side of the defense, if it does make a difference, it might add as much as six months time to the application because you do have to submit it for a vote of the people and there is some delay involved there.

I think we should at least mention because of Judge Stern’s decision that the record does not substantiate any claim of racial or economic discrimination in this case.

I believe that respondent will probably back me up.

There is no record in this case, whatsoever except for the charter and the applicable ordinances.

So, really, we are talking entirely about the constitutionality of the Eastlake procedure provided for rezoning.

It is a little unfortunate because in the Ohio Supreme Court, there was a housing unit that filed a brief which was far field from the record in this case and there they advocated the discrimination and impeding a right travel and so forth and Judge Stern in his concurring majority opinion picked up this kind of wording but I do not believe that the record in this case substantiates that and I do not believe it is basically a discrimination case.

As a practical matter, I believe that this case is pretty well governed by the finding of this Court in the Valtierra case rising out of California.

Almost the same arguments were made in that case even though that case applied to a public housing.

It was a Constitutional Amendment of the State of California requiring before any law in housing comes in any community, it is subject automatic referendum requirements.

In the same case, the same arguments was made in here that people or the developers were entitled this 10% procedure type petition and there are the Judge Black, I believe in the ruling says that the referendum is a democratic decision making procedure which by ensuring at all people of community will have a voice in the decision which may lead in large expenditure.

Local government funds will increase public services.

So, it gives them voice in decisions, it will effect the development of the community.

And, I think that is what we are saying here, that this is a means whereby the people have the constitutional right to reserve on to themselves the power in respect to rezoning.

Now, if rezoning was a power that was set aside by the Ohio Constitution and said no, you cannot vote on that, that be something else.

There are certain things such as Fiscal matter and tax matters which are exempt.

Rezoning is not one of them and rezoning has traditionally been subject to a vote of people and first of all adopting the general zoning plan and secondly, we feel that they have the power to adopt.

They have the power to rezone.

Unknown Speaker: You have not -- I think this dealt specifically with two or three decisions in this Court upon which the Supreme Court of Ohio relied, have you?

Mr. J. Melvin Andrews: Are you speaking of --

Unknown Speaker: Yes.

Mr. J. Melvin Andrews: We are speaking now of the two cases.

The Supreme Court below and also the respondents here relied pretty much upon Roberge and this is a case way back in 1928 in which the Court held that a philanthropic home could not to be made a subject of voting by people located in the same block and also the Eubank case which was in 1912 and this is one which they attempted to establish building lines by adjacent neighbors.

And we believe that neither of these cases are correctly interpreted by the respondent or by the Ohio Supreme Court because these are neighborhood preference cases and they say that they can not have a vote of people, in neighborhood’s preference case unless there are established standards.

But even in those cases, in each case, the Court says the power to locate a philanthropic home, or the general part of the city located philanthropic home, we do not decide.

And in the other case, the power to establish building lines, we do not decide.

So these are the cases which were relied upon by the respondent and I think they are misinterpreted or mis-relied upon by the Ohio Supreme Court and this is exactly the wording which was used by District Court case of California, the Alameda Spanish Speaking case, which they said that these two cases were misinterpreted and were not a basis for a finding where the entire referendum power of the city is involved.

I will save the remaining time --

Unknown Speaker: May I ask you a question?

I understood you indicate that the referendum was required because some history indicate that the council subservient to a large economic interest of some kind.

Mr. J. Melvin Andrews: Yes.

Unknown Speaker: Is there anything in the record to indicate that?

Mr. J. Melvin Andrews: No.

The reason this was circulated for petition and so forth, it was conceded by the respondent that the petition was correctly circulated, that amendment was correctly made and so the reason why this amendment was made is somewhat immaterial to this case.

Unknown Speaker: But as the case comes to us, the record is silent on why this procedure was adopted?

Mr. J. Melvin Andrews: That is correct.

Unknown Speaker: And you suggested there is nothing in the record to show there is any public interest in having this rezoning take place.

Should we not presume that the City Council acted in the best interest of the community?

And therefore, there is some public interest to be served by this particular rezoning?

Mr. J. Melvin Andrews: I, that is certainly is not in the record but I supposed it is a presumption that, I do not think it is important in this case.

Unknown Speaker: You represent the city and you, as lawyer for the City, you are describing the City Council the way you did earlier that there is subservient outside interest?

Mr. J. Melvin Andrews: No.

I am saying this that the City Council is the subservient to the electors.

In other words, as I am saying that the final decision is not in council.

The final decision is in the electors and that the electors have the constitutional right to veto the access, as they are elected representative (Inaudible)

Justice William H. Rehnquist: One can assume that the City Council acted in the public interest, one can assume that the people who voted in the referendum likewise acted in the public interest?

Mr. J. Melvin Andrews: I certainly hope so and as they stated in the Valtierra case that such procedure, referendum procedure show a devotion to democracy and not to bias and prejudice.

So I hope that we can assume that, yes.

Unknown Speaker: The Valtierra case did not involve a due process as you did?

Mr. J. Melvin Andrews: No, they used Equal Protection but the arguments were the same.

Unknown Speaker: What is the logical end of your last statement.

Suppose the citizen adopt a Amendment to the City charter and say instead of 55% we have to have 95% and then along comes a referendum on this kind of rezoning ordinance and only 93% vote the favor of it?

Mr. J. Melvin Andrews: I think that would be an unreasonable requirement and I think an unconstitutional requirement.

Unknown Speaker: They draw the line then?

Mr. J. Melvin Andrews: I do not know that the Courts have ever really drawn that line.

I know in Ohio they have held that 55% is constitutional in certain issues.

Chief Justice Warren E. Burger: You gave some information in the West Virginia case a couple of years ago, I think it was '66, it is either '66 or '60, there was some hint that that could go so high that it might create constitutional problems?

Mr. J. Melvin Andrews: Yes.

As far as I know, no Court has ever held that and also as far as I know, no Court has ever held the automatic referendum procedure or process itself to be unconstitutional.

Justice William H. Rehnquist: I take it that the zoning that results from the referendum.

This referendum procedure is subject to the same type of review, is that that it has simply been limited to City Council, that is once it has gone the referendum, it does not mean all judicial review is foreclosed of the reasonableness of this --

Mr. J. Melvin Andrews: Absolutely.

you have the same Ambler procedure safeguards to the final decision.

That is why I am saying that the way that the political decision is made, be it by the people or council is of very low consequence, but if they make the wrong decision, be it council or people, then we go into the Ambler to ask if it is unreasonable.

It is subject to judicial scrutiny on a case-by-case basis.

Chief Justice Warren E. Burger: Would unreasonableness raise one that Mr. Justice Blackmun, suggested 90% or 93% --

Mr. J. Melvin Andrews: I would think so, almost without doubt.

Chief Justice Warren E. Burger: Mr. Ginn.

Argument of William D. Ginn

Mr. William D. Ginn: Mr. Chief Justice and may it please the Court.

If there is one thing that we shall not do in this case, is to treat this issue which has been presented by these litigants lightly or other than a severe question of due process under the Fourteenth Amendment.

My client is a corporation form, but it was ten immigrant -- immigrants from Lithuania originally and we cherish the right to vote and the constitutional protections just as much as the citizens of the City of Eastlake.

And Your Honors, we do not have a voting right case here and we do not really have a referendum case and we really do not have a division of powers case in the sense of legislative administrator.

Chief Justice Warren E. Burger: (Inaudible) in the referendum aspect?

Mr. William D. Ginn: In the referendum aspect, Your Honor, it does not differ.

There was a mandatory referendum in effect in Valtierra and there is also here a mandatory referendum.

The crucial difference in Valtierra and there are several differences, the first difference is that Valtierra was not a due process case.

As the Court recognized, the Valtierra case was a situation where there was no attempt to exercise the police power.

The issue was equal protection.

It was raised by a group of persons interested in low rent housing, not in individual property owner’s rights with respect to the use of his property and it was not a zoning case.

Justice Byron R. White: (Inaudible) there has been no City Council ordinance, no referendum in this case that you should win because industrial zoning is unreasonable to this Court?

Mr. William D. Ginn: No, it is not Your Honor.

The use --

Justice Byron R. White: It is only is that you are left with industrial zoning?

Mr. William D. Ginn: The result is that we are left with industrial zoning, but with a deprivation of due process, because Your Honor, the essential issue in the case is exactly that the due process issue and I will explain to the Court why.

Justice Byron R. White: Well, it has to do with the fact that you are being unreasonably restrained in the use of your properties?

Mr. William D. Ginn: It has to do, Your Honor, with the process by which our rights have been decided.

Justice Byron R. White: Not by the use of reasonable restriction above the use of the property?

Mr. William D. Ginn: On the use of the property.

We are challenging the process by which the City of Eastlake seeks to grant or deny the right to change which is recognized in Euclid, which is recognized in due process cases generally, even in McGautha and dissenting opinion of Mr. Justice Brennan.

Justice William H. Rehnquist: The way it is chosen to pass on application such as yours to change the zoning that existed on the property at the time you bought it?

Mr. William D. Ginn: Precisely, Your Honor.

That comes directly down to really the vices and I think these will interweave into the questions that Court has been asking.

The vice, if you will, the shortcomings of the Euclid mandatory referendum system.

We have a traditional referendum system and I believe the Court understands that, up to the, I mean, the traditional zoning system and rezoning system up to the point where the council has validated the request for the change has found that the request for a change is within the public safety, morals, and general welfare of the community and at that point, it is that the Eastlake mandatory zoning procedure takes over and we submit that the effectiveness, if you will, of the legislative determine -- yes, Mr. Justice Rehnquist.

Justice William H. Rehnquist: Well, why do you not object on the grounds that once the Planning Commission has decided to recommend the change, it is unconstitutional to submit it to even a body derivative from the sovereignty of the people, such as the City Council?

Mr. William D. Ginn: Because the Planning Commission only makes recommendations, Your Honor.

The --

Justice William H. Rehnquist: Well, that is the way the Eastlake ordinance has set up now that the City Council only makes referendum recommendations and it is ultimately the people who decide?

Mr. William D. Ginn: Well, it is not --

Justice Byron R. White: You said that every votes of the City Council once the Planning Commission acts, it goes to the people?

Mr. William D. Ginn: Had that been true, Your Honor and if the people were exercising the right to control the use of my property, then that exercise with that right would have to be or would have to arise to the constitutional standards of the Fourteenth Amendment.

My property and the right to utilize it, is being restricted by a system which in the first instance is not a process which permits of a reasonable decision by reason of the process.

In other words, in order to have a constitutional system for restricting my property rights under Euclid, under McGautha, the decision on rezoning, Your Honors, must be arrived at in an even handed manner on a rational basis and not by a process which permits random choice or arbitrary decision.

That is the standard.

Yes sir, Mr. Chief Justice.

Chief Justice Warren E. Burger: You, at least I understood you to say that they could not change the rules of the game after you acquired the property here.

Now, suppose at the time you acquired the property a simple majority of the City Council would resolve these issues, but the city charter was amended after you have acquired the property, provided that it would take a vote of three fourths of the council to change the zoning, is that unconstitutional?

Mr. William D. Ginn: No, I would not, Your Honor because I have no vested right in the zoning.

The zoning, this is the very thing that precipitated Justice Sterns concurring opinion in the Supreme Court below.

The attempt to think in terms of a constitutional zoning system as though it is a restrictive covenant running with the land, the right to change of which is a matter of favor, it can be granted or denied, depending upon the status of the particular litigant standing before the people.

Chief Justice Warren E. Burger: Having the city procedure amended by putting it to a referendum and increasing the size of the vote in the council, what is the fundamental difference there?

Mr. William D. Ginn: Well, you may -- we may increase the size of the vote in council, Your Honor.

We may, under a constitutional or a classic zoning system provide for various procedures for change, but the end result, the final decision here, is a decision which in effect is a mandatory referendum decision.

It is one which is not reviewable on any of the basis which support a due process system.

It is one which cannot be referred to any of the standards of health safety or general welfare.

Under the classic zoning system, Your Honor, we have a provision for as it prescribes in Euclid against the Ambler Realty, a provision for measuring whether the end product has had reference to the standards of due process.

Justice William H. Rehnquist: What if the City Council in this case had simply denied your application for rezoning without any reasons or giving simply a minute order denying it, would you say that is a procedurally defective under the Fourteenth Amendment?

Mr. William D. Ginn: No, I would not say it is procedural defect, Your Honor because there the decision by the real decision maker, the City Council arrived at through a due process system has determined that I shall not get the change.

Now, it may be --

Justice William H. Rehnquist: You said that the City Council is the real decision maker.

Now, in our hypotheses where the City Council is the final authority that is true, but the people of Eastlake have made the people, a real decision maker?

Mr. William D. Ginn: In making the people the real decision maker, that is where they have created the conflict under the Fourteenth Amendment because the -- yes, Mr. Justice Blackmun.

Justice Harry A. Blackmun: Suppose this case, instead of coming up from Ohio, came up from a rural county in Massachusetts where everything is done by town meeting, would you be making the same arguments here?

Mr. William D. Ginn: I think the question, the issue Mr. Justice Blackmun, in that circumstance would be whether the town meeting as a part of the process for rezoning had a sufficient procedural protection to it, so that we could ascertain whether the standards of due process were being applied by the decision maker so that we could examine into the basis of that decision through some legitimate judicial process.

Justice Harry A. Blackmun: But you know what a town meeting is?

Mr. William D. Ginn: I do Your Honor.

Justice Harry A. Blackmun: Town meeting and the decisions made that night are there standards ever, people can just vote?

Mr. William D. Ginn: I think in the sense what you are referring to, Your Honor, is that what does take place in a lot of zoning, even in Eastlake and that is that there are public hearings.

Now, the town meeting may -- I do not know whether the town meeting actually decides in the sense of a Town Council deciding, but as long as the constitutional processes are present, then we can have a valid zoning system.

Justice Byron R. White: So you would, I guess you would see an argument that it is planning committee make a right decision, City Council (Inaudible) and in the middle of the night which comes out with the decision which announces the next morning without any reason at all.

That is procedurally deficient or not?

Mr. William D. Ginn: Well, the --

Justice Byron R. White: The City Council does it.

The only thing is it just does not tell you who is going to do it, has no public hearings, there is not one single procedural right extended to any member of the public.

Mr. William D. Ginn: Right, or to the litigant.

Justice Byron R. White: Yes.

Mr. William D. Ginn: Well, under those circum --

Justice Byron R. White: Litigant is the property owner.

Mr. William D. Ginn: Yes.

Justice Byron R. White: And they just said the City Council just announces, we think industrial zoning is just fine for this property.

Now, would you make the same argument there as you are making now?

Mr. William D. Ginn: Well, no I would say there maybe deficiencies in the due process procedure under which that decision has been arrived at and those deficiencies maybe a matter of concern to the local community at large or there maybe a matter of concern to the property owner.

Chief Justice Warren E. Burger: Deficiencies in hypothesis just given to you?

Mr. William D. Ginn: That there is no public hearing and the --

Chief Justice Warren E. Burger: In that hypothesis before the Planning Commission?

Mr. William D. Ginn: But we had no consideration, Your Honor in, you know, before the public.

Chief Justice Warren E. Burger: Your answer is the City Council cannot do what Justice White has hypothesized?

Mr. William D. Ginn: That is correct, Your Honor.

Justice William H. Rehnquist: Would you extend that rule to legislation in general?

Most Western States have a provision that if the legislature passes a law, a certain number of people by petition can submit it to referendum and if at the next election, the people disapprove the law it is repealed.

Is that constitutionally infirm?

Mr. William D. Ginn: Mr. Justice Rehnquist, I think it is quite well established that in that type of referendum that you have spoken of, that there may not be a constitutional infirmity.

The kind of referendum so called that we are speaking of is a show of hands by the people on whether my individual property shall be restricted by a zoning ordinance or by a change.

Unknown Speaker: (Inaudible)

Mr. William D. Ginn: Well, Your Honor, I do not believe that it is appropriate to say have the restriction lifted.

The Eastlake ordinance as many, as indeed all of these ordinances, as the Ambler, Euclid against Ambler Realty case itself said, there must be a function of change under these.

Justice William H. Rehnquist: We know that, but the question is, in this case, not whether your property was going to be rezoned against your will, but whether the existing zoning on your property was going to be changed in accordance with your request?

Mr. William D. Ginn: Correct.

Justice William H. Rehnquist: So, it is peculiar to zoning then this doctrine that you are not, it does not carry you over in the other legislative function?

Mr. William D. Ginn: Yes, Your Honor it is and zoning is itself a rather unique and as the Court has observed, members of the Court previously, Mr. Justice Marshall, I think most recently in Valtierra that zoning is a matter which does impinge directly on individual property rights.

And zoning has his historically, been treated as a adjudicatory type, whether we put the labels on it or not, if the request of the individual that he has the benefits of the change that the zoning ordinances provide as available to the community and have --

Justice Thurgood Marshall: The trouble is you keep saying litigant and under the zoning procedures you are not a litigant?

Mr. William D. Ginn: No, Your Honor.

We are individual property owner, that is true.

We are just an individual property owner and the issue is whether --

Justice Thurgood Marshall: Not measured by a litigant’s due process, is it?

Mr. William D. Ginn: No, it is not.

It is measured --

Justice Thurgood Marshall: It is something else?

Mr. William D. Ginn: Pardon, Your Honor?

Justice Thurgood Marshall: It is something else?

Mr. William D. Ginn: It is something else, it is something else.

Justice Thurgood Marshall: Can it be controlled by a referendum?

Mr. William D. Ginn: It can be controlled by a referendum of the traditional variety if the -- or at least it is arguable that it can be.

In this particular instance, we do not have that kind of a referendum.

We have a show of hands which masquerades as a referendum.

It has been labeled as a referendum.

Justice Thurgood Marshall: (Inaudible) put your side in before the people?

Mr. William D. Ginn: You can put your side in before the people, Your Honor, but let us examine that because I think that is -- due process is a matter of the burdens of course that a society places on the individual and in the case of a mandatory referendum, the burden is placed on the homeowner, not only of carrying the initial burden, that is of going to Planning Commission, the public hearing and the council and having his request for a change validated as being within the public welfare.

Now, the individual property owner is given an additional burden and that additional burden is to act in affect as the private Attorney General for the public officials seeking to validate their judgment.

Now, with respect to my use of property that is whether or not my use fits the general welfare and in --

Justice Thurgood Marshall: This is on private Attorney General now?

Mr. William D. Ginn: Well, I am conscripted into that position, Your Honor, because --

Justice Thurgood Marshall: (Inaudible) -- what do you want?

Mr. William D. Ginn: We wanted to build some conventional housing on a piece of industrial property that was rezoned for that purpose after public hearing by the council upon recommendation of the Planning and Zoning Commission.

And then, by throwing it open to a show of hands to the personal preference, if you will, Your Honor, are the people who happened to come down to the poles on that day, by throwing it open to show of hands, we were denied that which the duly constituted authorities under the classic rezoning situation had granted to us.

Unknown Speaker: (Inaudible)

Mr. William D. Ginn: Pardon, Your Honor?

Justice Thurgood Marshall: The rezoning questions on the ballot, would you make the same argument?

Mr. William D. Ginn: It was put on the ballot under this mandatory referendum.

It was put on the ballot --

Justice Thurgood Marshall: Show of hands can take away a whole lot of rights, but it cannot take yours away?

Mr. William D. Ginn: They cannot take my rights away in a fashion --

Justice Thurgood Marshall: They put other rights away?

Mr. William D. Ginn: They do, Your Honor, occasionally and then --

Justice Thurgood Marshall: Indeed the whole zoning law, could it not?

Mr. William D. Ginn: They cannot change it in such a way is to violate the Fourteenth Amendment.

Justice Thurgood Marshall: The whole zoning law, could they not?

Mr. William D. Ginn: Yes, if they did it within.

Justice Thurgood Marshall: (Voice overlap) change yours?

Mr. William D. Ginn: No, if they change mine in accordance with the Fourteenth Amendment, Your Honor, I have no complaint.

But --

Justice Potter Stewart: In accord with the ordinary referendum provisions under the town Charter of Eastlake, what if the people in a referendum had ordained that there would be no change in any of the zoning laws or ordinances of Eastlake for five years?

Mr. William D. Ginn: Mr. Justice Stewart --

Justice Potter Stewart: Do they make a law of general applicability?

Mr. William D. Ginn: Yes, they make a law of general applicability.

Justice Potter Stewart: And ordinance enacted by referendum, by popular vote?

Mr. William D. Ginn: Under those circumstances, the issue would be whether the time for which the in effect policy was in effect was the reasonable one, if the people or if their legislative authorities or by charter amendment had said there shall be no changes, in the zoning laws that under Euclid against Amber Realty would be unconstitutional, I would contend.

Justice Potter Stewart: The substantive zoning, not the substantive law, not a matter of the procedure under which it was enacted there?

Mr. William D. Ginn: That is the matter of the burden of restrictions on my property because the very essence --

Justice Potter Stewart: As a matter of substance, not as a matter of procedures by which it was created or ordained or acted upon?

Mr. William D. Ginn: It is so unreasonable as to be unlawful.

Justice Potter Stewart: That is a different question.

You have answered I thought quite clearly and answered to other previous questions here from the bench that you are not attacking as such, the unreasonableness of this -- refuse of the result?

Mr. William D. Ginn: As directive against my property.

You are --

Justice Potter Stewart: Is that correct?

Mr. William D. Ginn: You are absolutely right, Your Honor.

We are attacking the method and means whereby zoning is opposed and denied under the Eastlake Charter.

Justice Potter Stewart: Now, what is the answer to my question then?

A popularly --

Mr. William D. Ginn: The answer --

Justice Potter Stewart: -- enacted ordinance provides, there shall be no rezoning in Eastlake for five years and who change the process on it?

Mr. William D. Ginn: That would likely be reasonable and likely be constitutional because of the reasonableness of it, if the five years was a reasonable period of time.

Justice Potter Stewart: (Inaudible) -- procedure, the method --

Mr. William D. Ginn: No it does not.

Justice Potter Stewart: -- under which was it was enacted; it has to do with the substantive result underneath that.

How about the method and procedure by which this hypothetical ordinance was enacted?

Would that (Voice Overlap)

Mr. William D. Ginn: I think the method and procedure there is inconsequential.

Yes, Your Honor?

Justice John Paul Stevens: The time when this referendum requirement was put in?

Mr. William D. Ginn: Well, it was clearly under the briefs while they just indicated the denial than that under of the brief of the petitioner.

It was clearly directed to our individual property.

Justice John Paul Stevens: (Inaudible)

Mr. William D. Ginn: And the brief --

Justice John Paul Stevens: (Voice overlap) and if so do you rely on that time sequence as part of your argument?

Mr. William D. Ginn: No, we do not rely upon it, Your Honor.

The deprivation of due process by this system is so fundamental that we would not rely upon it as being -- as the key being the fact that it was directed to us.

Unknown Speaker: Do you rely on the 55%?

Mr. William D. Ginn: No, Your Honor.

The 55% as such --

Justice William J. Brennan: You would make the same argument if it were just a simple majority?

Mr. William D. Ginn: Yes, Your Honor and it is noted in the --

Justice Byron R. White: In careful condition, their approval on their being as many as 20% in the community who agreed with it?

Mr. William D. Ginn: The question of conditional zoning is another issue.

Justice Byron R. White: Let us just assume the ordinance said no City Council's rezoning shall be -- shall take effect until as 20% of the people in the referendum approved.

You would be making the same argument?

Mr. William D. Ginn: In this, I would be making the same argument, Your Honor because the fact is, that we cannot examine into the basis for the decision that is made by the electorate on my property --

Justice William J. Brennan: And I gather (Voice Overlap) of course your property is already restricted.

It is restricted to industrial use and it was when you bought it and your real complaint is that this procedure keeps the restriction in effect and it will not remove it, is it not?

Mr. William D. Ginn: No, that is the effect (Voice overlap).

That is the --

Justice William J. Brennan: That is what your real complaint, is not it?

Mr. William D. Ginn: My real complaint --

Justice William J. Brennan: That you cannot be denied the release of the restriction by this procedure --

Mr. William D. Ginn: Pursuant to a --

Justice William J. Brennan: By this procedure?

Mr. William D. Ginn: By this procedure, I cannot be denied and that is for sure.

Your Honor, the procedure is deficient in at least three major ways.

The first two are interrelated.

Justice Byron R. White: (Inaudible)If everything you wanted to say about it, got an every single voters name?

Mr. William D. Ginn: Yes, Your Honor because in the first place they have put that burden on me of expanding my --

Justice Byron R. White: Well, I know, but let us assume that the states and you want to say we will make sure it gets in the hands of every voter.

I take it your problem is that you think voters voted in a way that it may be completely irrational?

Mr. William D. Ginn: No, I have no distrust to the voters as the fundamental matter, Your Honor.

Justice Byron R. White: Do you think it is really a procedural thing?

Mr. William D. Ginn: No.

I say that the decision of the voters cannot be as they have conceded, cannot be examined into.

There is no way in which I can test the basis on which -- it may be personal preference, it maybe bias and prejudice, who knows?

Justice Byron R. White: (Inaudible) -- fact that -- it is the fact that it is a voting process?

Mr. William D. Ginn: No.

Justice Byron R. White: But you do not, you just really will not just accept the fact decision is made by the individual voter, by voting?

Mr. William D. Ginn: On my individual property, I cannot accept the fact that under the Fourteenth Amendment by a mere show of hands, that is without any reference and this is important Mr. Justice White, without reference to standards because that was the key of Euclid against Ambler Realty, the people have no way.

Justice Byron R. White: If they have accorded all the process that anybody could have imagined and you still would be here objecting?

Mr. William D. Ginn: Process in that sense, I would be, Your Honor because the decision of the people on the use of my property once having been validated as within the public welfare, now the people are asked by a show of hands to determine do I get what I have gotten from the legislative authorities and through the normal processes or do I not and there is no way, in which I could --

Chief Justice Warren E. Burger: When you say the normal processes, the normal process in the City of Eastlake is to have go to a referendum?

Mr. William D. Ginn: I should say the constitutional process, Your Honor, because and I want to answer that directly because, the contention that the petitioner makes is that the end result, that is the people’s votes, is the only thing that matters and how we get to that end result is inconsequential and cannot be attacked.

I say, that under our constitution, it is process, it is how we structure the system that does the whole job and the fact that in a particular instance --

Justice John Paul Stevens: Mr. Ginn, you were going to tell us and you never did.

What are the three you are relying on?

Mr. William D. Ginn: Your Honor, in a --

Justice John Paul Stevens: One is the lack of standards, I understand.

Mr. William D. Ginn: One is the lack of any ability to refer to the standards in terms or to measure the standards in terms of the mandatory referendum.

The mandatory referendum is not susceptible to being measured by the standards.

The second one, Your Honor, is really the first one and that is that we cannot have a constitutional system under the Fourteenth Amendment where there is purely at random or arbitrary result unless the system itself is susceptible of a reasonable, rational even handed approach and mandatory referendum is simply random.

It depends upon the content of the information in the minds of the voters as they approach the polls on that very day.

It depends upon who happens to show up.

It depends upon --

Chief Justice Warren E. Burger: (Inaudible) -- the town here is in Massachusetts that Mr. Justice Blackmun postulated to --

Mr. William D. Ginn: True, Your Honor --

Justice William H. Rehnquist: -- is true in plenty of City Council meetings?

Mr. William D. Ginn: It is true.

It is plenty of them.

Chief Justice Warren E. Burger: Yeah.

Justice Harry A. Blackmun: (Inaudible) that is your 13 there, necessarily means that the town meeting procedure is unconstitutional when it comes to rezoning?

Mr. William D. Ginn: I am not sure that it is necessarily means that, Mr. Justice Blackmun.

I think that that what we mean, is that when we have a system which is designed to grant or deny my use or restrict my use of private property that it has to be shrouded with at least the protections of being a system that can be referred to standards that it can be reasonable and not random arbitrary, capricious, Eubank, Roberge and Euclid itself and thirdly, Mr. Justice Stevens, the system itself must be one that where you can examine judicially into the basis for the final decision that has been made and there is no way as they concede that you can examine judicially into the basis of the determination that has been made at the ballot box on this mandatory referendum.

Justice William J. Brennan: Our cases have made of distinction, have they not, between restrictions imposed via the lot owners on your property and the removal of restrictions on your property.

Mr. William D. Ginn: I do not --

Justice William J. Brennan: Have you not, Cusack made -- Cusack said--

Mr. William D. Ginn: May I speak to that, Mr. Justice Brennan?

Justice William J. Brennan: I would think you would.

You have not said a word about it.

You have got Cusack and Roberge and all those cases --

Mr. William D. Ginn: Well --

Justice William J. Brennan: You need to explain the way.

Mr. William D. Ginn: Well, Mr. Justice Brennan, I do not have to explain a way Eubank or Roberge, they are in the line of my authority.

Cusack --

Justice William J. Brennan: They imposed restriction?

Mr. William D. Ginn: And they allow.

Justice William J. Brennan: They allow the land owners to imposed restrictions and not already on your property?

Mr. William D. Ginn: In the case of Roberge, Your Honor, there was a duly validated opportunity to build a home for the aged and that final decision just as in the City of Eastlake was suspended or made ineffective until there was a vote.

It is directly on point.

Cusack, Your Honor, involved an offensive use that is --

Justice William J. Brennan: Signboards?

Mr. William D. Ginn: Signboards, billboards which were classified under their ordinances as an offensive use, of public nuisance and that public nuisance could be lifted by the discreet group of persons who were directly affected by it, and that was held to be constitutional and that is not -- it does not have bearing on our particular situation.

The Eastlake’s scheme, Your Honors, for a ballot box rezoning really presents this issue.

Do the people have the right by a show of hands by their mere expression of personal preferences to override an individual property owner's fully validated right to use his property in a way which is in keeping with the public welfare.

And if this becomes the law of the land, then we will have taken a giant step towards the destruction of due process of law in the area of land use.

This concept that has been so vital to the development of land use law of a rational planning system, a decision that is reasonably arrived at, objectively reached, this is the essence of Euclid.

It is the essence of McGautha’s discussion of due process.

That kind of a system will no longer have any significance.

Fifty years of experience, Your Honors, in arriving at that delicate balance between the community interest and the individual property owners' interest will be jettisoned in favor of the vagaries of the ballot box and we respectfully urge --

Justice John Paul Stevens: Again, I take it you attach any significance either to the fact that the property owner bears the cost of the election?

Mr. William D. Ginn: I consider that to be an additional burden.

That is a hallmark in effect of the distinction between traditional referendum and this mandatory referendum scheme.

There is a distinction which can be made.

This Court could constitutionally arrive at the conclusion that the traditional referendum has a sufficient group of protections attached to it, that it ought to be upheld whereas the mandatory referendum with no guide post, with no standards and with just a random result, ought not to be upheld constitutionally.

Yes, Mr. Justice Powell.

Justice Lewis F. Powell: Let us assume that the Mayor had vetoed your ordinance and the council had failed to override the veto, would you be contend with that as complying with all of the arguments you have advanced?

Mr. William D. Ginn: That would be another issue and I would have to test then the reasonableness of the action of the legislative body in terms of -- it would not be --

Justice Lewis F. Powell: Any better means of testing the action of the Mayor who decided to veto than you have had in testing the reasonableness of the action of the people?

Mr. William D. Ginn: At least, the action of the Mayor is one that could be inquired into.

I think if the system provides for legislative vetoes and we assume that this is a legislative act, then the issue would be a slightly different one.

It would be the reasonableness of the act of veto in my property interest or my result.

Justice Lewis F. Powell: But if it authorized the Mayor to veto ordinances?

Mr. William D. Ginn: Pardon, me Your Honor?

Justice Lewis F. Powell: Your charter authorizes the Mayor to veto ordinances?

Mr. William D. Ginn: Yes, Your Honor.

And that we would welcome the system that gives us an opportunity to examine into the rightness, the wrongness, the reasonableness of what is done in that respect.

Justice Potter Stewart: What was the conventional way prior to the enactment of this ordinance providing for this special referendum?

What was the convention?

How would you get the review of -- is it either the council action or council action vetoed by the Mayor that council had failed to override?

Mr. William D. Ginn: The way you get at the review of council action, Your Honor, is by going to the Courts.

Justice Potter Stewart: Common Pleas Court?

Mr. William D. Ginn: You go to Common Pleas Court.

Justice Potter Stewart: Name me one.

Mr. William D. Ginn: Claiming that there had been an improper application of the standards of public health safety and general welfare under Euclid, putting in all of the zoning type testimony and evidence that you would put in --

Justice Potter Stewart: Could you still do that?

Mr. William D. Ginn: Not now, Your Honor, because the ultimate decision maker -- I mean, we have the presumption attached to the validity now of what the council has done, but the ultimate decision maker is no longer challengeable, we never get the opportunity.

Justice Potter Stewart: Why not?

Why could you not go in the County Pleas Court with the same claim?

Mr. William D. Ginn: Because, Your Honor, you cannot delve into the minds of the voters according to the petitioner.

I think that --

Justice Potter Stewart: (Voice Overlap) -- all you can show by your own case, not by examination of your adversaries, but by your own case, if this violates all the standards of equity and reasonableness are outnumbered, cannot you?

Mr. William D. Ginn: Yes, Your Honor.

Justice Potter Stewart: Common Pleas Court of Ohio?

Mr. William D. Ginn: I think the issue there would be slightly different, Your Honor.

Justice Potter Stewart: Why?

Mr. William D. Ginn: I think the issue would be whether or not the use of your property as it has been circumscribed is an invalid use because unreasonable and contrary to the Fourteenth Amendment.

It would be the traditional Euclid against Ambler Realty type.

Justice Potter Stewart: And so that it would be, if there were this for council action, that is it would be if these were council action vetoed by the Mayor and that is what will be in this case, is it not?

Mr. William D. Ginn: No, Your Honor.

Justice Potter Stewart: It is the same issue?

Mr. William D. Ginn: It would not be the same issue in the case of the council action because there we would be seeking to have overwritten the judgment of the Council denying our right and we would be seeking to have the Court, you know, grant us the rezoning.

Now, in that circumstance we would not be heard and we would not be held by the presumptions that normally attached to the legislative process and we would have a real uphill battle.

But in this circumstance, in which we were now placed, we do not -- we had a valid exercise of legislative power over the rezoning.

We have been accorded the rezoning.

Now, it has been put to the ballot box and personal preference has said no –

Justice Potter Stewart: Right, under the law, you can still get a review of that under Amber, would you not?

Mr. William D. Ginn: No, we cannot get the same review, Your Honor because we cannot force the people.

Justice Potter Stewart: You might have a little different problem of proof because you -- in council action, I suppose you could call councilmen to the witness stand to testify and you could not call the individual voters of Ambler, but beyond problem of proof, you would have the same kind of case, would you not?

Mr. William D. Ginn: I do not think the case is the same, Your Honor because the issue is no longer whether the presumption of validity attached is to the legislative process by which we have gotten the change.

That presumption has been wiped out by the show of hands at the end of a line and so we are --

Justice Potter Stewart: Because there is the presumption and validity of what the voters did?

Mr. William D. Ginn: There is, Your Honor, a presumption.

Justice Potter Stewart: I would suppose so under --

Mr. William D. Ginn: Well, that Your Honor then as a presumption of validity which we cannot surmount and which we ought not to have placed upon us as a burden under the Fourteenth Amendment.

Justice Potter Stewart: If this is an inequitable refusal to rezone in violation of the standard set out in Ambler, why could you not seek review in the County Pleas Court, the same as you would have been able to do, had this simply been council action?

Mr. William D. Ginn: We would certainly attempt that.

I think the burdens and the whole process would be different because we are not able to examine as Euclid against Ambler Realty, as McGautha, as like other decisions of this Court have said, in order to have a due process system, at the end of the line judicial review must be available in a reasonable manner which enables the person who has been deprived of his rights to examine into the basis of the decision and we are deprived of that under this system.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Do you have anything Mr. Andrews?

Rebuttal of J. Melvin Andrews

Mr. J. Melvin Andrews: Just very briefly in answer to the question of Justice Stewart.

The decision would be reviewable the same from the council or the people.

That type of case you look at the property and determine what the restrictions are in the property and whether decision made by council or people, makes no difference.

Are those restrictions are reasonable or are they not, that is the issue there.

Secondly, I think Mr. Ginn’s position is he does not want the people to vote on rezoning and thirdly, in respect to the Eastlake charter, rezoning has always been a subject of referendum under the Eastlake charter.

The only difference being that under old system so we speak, it required a 10% petition of the people in order to bring the referendum to vote and the substantive rights are the same.

Now, the only difference is the procedure is different.

Instead of the requirement that the people circulate at 10% petition that is eliminated.

That is the only difference.

Justice John Paul Stevens: Mr. Andrews, let me just get the 55% requirement clear in my mind.

Do I correctly understand that if an individual say an owner of a two flat, one at the rezone, the single family is just a very minor 30-foot lot, wanted to change, that property owner would still in order to get that done had to bare the cost of a city wide referendum to get approved?

Mr. J. Melvin Andrews: Let us get straight on this cost.

The law court held the fact that the cost of the referendum should be chargeable to the applicant was unconstitutional.

We have accepted that and we have not pursued it on review so that is not (Voice Overlap)

Justice John Paul Stevens: Well if that is true, no matter how small the parcel and no matter how minor the change in zoning, the property owner has the burden of getting a 55% of the electorate to agree to that particular change?

Mr. J. Melvin Andrews: That is correct.

It was just very recently that a piece of property up the street from this particular property was put up through a vote of people.

It was nine acre parcel from industrial business.

They received the 78% majority vote so -- but this is true we draw the line at rezoning.

Yes.

Justice Potter Stewart: Unless you talk about the variance?

Mr. J. Melvin Andrews: Variance is something else.

We are talking on rezoning, yes sir --

Justice Potter Stewart: And my brother's example might be no more than a variance?

Mr. J. Melvin Andrews: That is right.

If it got into a variance set, that is administrative, that is not subject to a referendum.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.