The Ohio Constitution reserves to the people of each
municipality in the State the power of referendum with respect to
all questions that the municipality is authorized to control by
legislation. Respondent real estate developer applied for a zoning
change to permit construction of a high-rise apartment building on
land it owned in petitioner Ohio city. While the application was
pending, the city charter was amended by popular vote so as to
require that any changes in land use agreed to by the City Council
be approved by a 55% vote in a referendum. The City Planning
Commission recommended, and the City Council approved, the proposed
zoning change, but the Commission rejected respondent's further
application for "parking and yard" approval for the proposed
apartment building on the ground that the Council's rezoning action
had not been submitted to a referendum. Respondent then filed suit
in state court, seeking a judgment declaring the city charter
amendment invalid as an unconstitutional delegation of legislative
power to the people. While the action was pending, the proposed
zoning change was defeated in a referendum. The charter amendment
was upheld by the trial court and by the Ohio Court of Appeals, but
the Ohio Supreme Court reversed, holding that the amendment
constituted a delegation of power violative of federal
constitutional due process guarantees because the voters were given
no standards to guide their decision.
Held: The city charter amendment does not violate the
due process rights of a landowner who applies for a zoning change.
Pp.
426 U. S.
672-679.
(a) A referendum, which is a means for direct political
participation by the people, allowing them what amounts to a veto
power over legislative enactments, cannot be characterized as a
delegation of power. In establishing legislative bodies, the people
can reserve to themselves power to deal directly with matters that
might otherwise be assigned to the legislature, and here the power
of referendum was specifically reserved to the people under the
Ohio Constitution. Pp.
426 U. S.
672-674.
Page 426 U. S. 669
(b) The doctrine that legislative delegation of power to
regulatory bodies must be accompanied by discernible standards is
inapplicable where, as here, rather than power being delegated, the
power exercised is one reserved by the people to themselves. P.
426 U. S.
675.
(c) A referendum result that is arbitrary and capricious,
bearing no relation to police power, is open to challenge in state
court, where the scope of the available state remedy would be
determined as a matter of state law and under the Fourteenth
Amendment. Pp.
426 U. S.
676-677.
(d) As a basic instrument of democratic government, the
referendum process does not, in itself, violate the Due Process
Clause of the Fourteenth Amendment when applied to a rezoning
ordinance.
Eubank v. Richmond, 226 U.
S. 137;
Washington ex rel. Seattle Title Trust Co.
v. Roberge, 278 U. S. 116,
distinguished. Pp.
426 U. S.
677-679.
41 Ohio St.2d 187, 324 N.E.2d 740, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined.
POWELL, J., filed a dissenting opinion,
post, p.
426 U. S. 680.
STEVENS, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
426 U. S.
680.
Page 426 U. S. 670
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question in this case is whether a city charter provision
requiring proposed land use changes to be ratified by 55% of the
votes cast violates the due process rights of a landowner who
applies for a zoning change.
The city of Eastlake, Ohio, a suburb of Cleveland, has a
comprehensive zoning plan codified in a municipal ordinance.
Respondent, a real estate developer, acquired an eight-acre parcel
of real estate in Eastlake zoned for "light industrial" uses at the
time of purchase.
In May, 1971, respondent applied to the City Planning Commission
for a zoning change to permit construction of a multifamily,
high-rise apartment building. The Planning Commission recommended
the proposed change to the City Council, which, under Eastlake's
procedures, could either accept or reject the Planning Commission's
recommendation. Meanwhile, by popular vote, the voters of Eastlake
amended the city charter to require that any changes in land use
agreed to by the Council be approved by a 55% vote in a referendum.
[
Footnote 1] The City
Page 426 U. S. 671
Council approved the Planning Commission's recommendation for
reclassification of respondent's property to permit the proposed
project. Respondent then applied to the Planning Commission for
"parking and yard" approval for the proposed building. The
Commission rejected the application on the ground that the City
Council's rezoning action had not yet been submitted to the voters
for ratification.
Respondent then filed an action in state court, seeking a
judgment declaring the charter provision invalid as an
unconstitutional delegation of legislative power to the people.
[
Footnote 2] While the case was
pending, the City Council's action was submitted to a referendum,
but the proposed zoning change was not approved by the requisite
55% margin. Following the election, the Court of Common Pleas and
the Ohio Court of Appeals sustained the charter provision.
[
Footnote 3]
The Ohio Supreme Court reversed. 41 Ohio St.2d 187, 324 N.E.2d
740 (1975). Concluding that enactment of zoning and rezoning
provisions is a legislative function, the court held that a popular
referendum
Page 426 U. S. 672
requirement, lacking standards to guide the decision of the
voters, permitted the police power to be exercised in a
standardless, hence arbitrary and capricious manner. Relying on
this Court's decisions in
Washington ex rel. Seattle Trust Co.
v. Roberge, 278 U. S. 116
(1928),
Thomas Cusack Co. v. Chicago, 242 U.
S. 526 (1917), and
Eubank v. Richmond,
226 U. S. 137
(1912), but distinguishing
James v. Valtierra,
402 U. S. 137
(1971), the court concluded that the referendum provision
constituted an unlawful delegation of legislative power. [
Footnote 4]
We reverse.
I
The conclusion that Eastlake's procedure violates federal
constitutional guarantees rests upon the proposition that a zoning
referendum involves a delegation of legislative power. A referendum
cannot, however, be characterized as a delegation of power. Under
our constitutional assumptions, all power derives from the people,
who can delegate it to representative instruments which they
create.
See, e.g., The Federalist No. 39 (J. Madison). In
establishing legislative bodies, the people can reserve to
themselves power to deal directly with matters which might
otherwise be assigned to the legislature.
Hunter v.
Erickson, 393 U. S. 385,
393 U. S. 392
(1969). [
Footnote 5]
The reservation of such power is the basis for the
Page 426 U. S. 673
town meeting, a tradition which continues to this day in some
States as both a practical and symbolic part of our democratic
processes. [
Footnote 6] The
referendum, similarly, is a means for direct political
participation, allowing the people the final decision, amounting to
a veto power, over enactments of representative bodies. The
practice is designed to "give citizens a voice on questions of
public policy."
James v. Valtierra, supra at
402 U. S.
141.
In framing a state constitution, the people of Ohio specifically
reserved the power of referendum to the people of each municipality
within the State.
"The initiative and referendum powers are hereby reserved to the
people of each municipality on all questions which such
municipalities may now or hereafter be authorized by law to control
by legislative action. . . ."
Ohio Const., Art. II, § 1f.
To be subject to Ohio's referendum procedure, the question must
be one within the scope of legislative power. The Ohio Supreme
Court expressly found that the City Council's action in rezoning
respondent's eight acres from light industrial to high-density
residential use was legislative in. nature. [
Footnote 7] Distinguishing between administrative
and legislative acts, the court separated the power to zone or
rezone, by passage or amendment of a
Page 426 U. S. 674
zoning ordinance, from the power to grant relief from
unnecessary hardship. [
Footnote
8] The former function was found to be legislative in nature.
[
Footnote 9]
Accord, Denney
v. Duluth, 295 Minn. 22, 28-29,
202 N.W.2d
892, 895-896 (1972);
Smith v. Township of Livingston,
106 N.J.Super. 444, 454,
256 A.2d 85, 90 (1969);
Wollen v. Borough of Fort Lee,
27 N.J. 408, 422,
142 A.2d
881, 888-889 (1958);
Johnston v. City of
Claremont, 49 Cal. 2d
826, 835-836, 323 P.2d 71, 76-77 (1958);
Dwyer v. City
Council, 200 Cal. 505, 515, 253 P. 932, 935-936 (1927);
Hilltop Realty, Inc. v. City of South Euclid, 110 Ohio
App. 535, 164 N.E.2d 180 (1960).
Compare Kelley v. John,
162 Neb. 319,
75 N.W.2d 713
(1956),
with In re Frank, 183 Neb. 722, 723,
164 N.W.2d
215, 216 (1969).
Page 426 U. S. 675
II
The Ohio Supreme Court further concluded that the amendment to
the city charter constituted a "delegation" of power violative of
federal constitutional guarantees because the voters were given no
standards to guide their decision. Under Eastlake's procedure, the
Ohio Supreme Court reasoned, no mechanism existed, nor indeed could
exist, to assure that the voters would act rationally in passing
upon a proposed zoning change. This meant that "appropriate
legislative action [would] be made dependent upon the potentially
arbitrary and unreasonable whims of the voting public." 41 Ohio
St.2d at 195, 324 N.E.2d at 746. The potential for arbitrariness in
the process, the court concluded, violated due process.
Courts have frequently held in other contexts that a
congressional delegation of power to a regulatory entity must be
accompanied by discernible standards, so that the delegatee's
action can be measured for its fidelity to the legislative will.
See, e.g., Yakus v. United States, 321 U.
S. 414 (1944);
Amalgamated Meat Cutters v.
Connally, 337 F.
Supp. 737 (DC 1971).
Cf. FEA v. Algonquin SNG, ante,
p.
426 U. S. 548.
See generally 8 E. McQuillan, Municipal Corporations §
25.161, pp. 521-522 (3d ed.1965); Note, 1972 Duke L.J. 122.
Assuming,
arguendo, their relevance to state governmental
functions, these cases involved a delegation of power by the
legislature to regulatory bodies, which are not directly
responsible to the people; this doctrine is inapplicable where, as
here, rather than dealing with a delegation of power, we deal with
a power reserved by the people to themselves. [
Footnote 10]
Page 426 U. S. 676
In basing its claim on federal due process requirements,
respondent also invokes
Euclid v. Ambler Realty Co.,
272 U. S. 365
(1926), but it does not rely on the direct teaching of that case.
Under
Euclid, a property owner can challenge a zoning
restriction if the measure is "clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety,
morals, or general welfare."
Id. at
272 U. S. 395.
If the substantive result of the referendum is arbitrary and
capricious, bearing no relation to the police power, then the fact
that the voters of Eastlake wish it so would not save the
restriction. As this Court held in invalidating a charter amendment
enacted by referendum:
"The sovereignty of the people is itself subject to those
constitutional limitations which have been duly adopted and remain
unrepealed."
Hunter v. Erickson, 393 U.S. at
393 U. S. 392.
See also Lucas v. Colorado Gen. Assembly, 377 U.
S. 713,
377 U. S.
736-737 (1964);
West Virginia State Bd. of Educ. v.
Barnette, 319 U. S. 624,
319 U. S. 638
(1943).
But no challenge of the sort contemplated in
Euclid v.
Ambler Realty is before us. The Ohio Supreme Court did not
hold, and respondent does not argue, that the present zoning
classification under Eastlake's comprehensive
Page 426 U. S. 677
ordinance violates the principles established in
Euclid v.
Ambler Realty. If respondent considers the referendum result
itself to be unreasonable, the zoning restriction is open to
challenge in state court, where the scope of the state remedy
available to respondent would be determined as a matter of state
law, as well as under Fourteenth Amendment standards. That being
so, nothing more is required by the Constitution. [
Footnote 11]
Nothing in our cases is inconsistent with this conclusion. Two
decisions of this Court were relied on by the Ohio Supreme Court in
invalidating Eastlake's procedure. The thread common to both
decisions is the delegation of legislative power, originally given
by the people to a legislative body, and in turn delegated by the
legislature to a
narrow segment of the community, not to
the people at large. In
Eubank v. Richmond, 226 U.
S. 137 (1912), the Court invalidated a city ordinance
which conferred the power to establish building setback lines upon
the owners of two-thirds of the property abutting any street.
Similarly, in
Washington ex rel. Seattle Title Trust Co. v.
Roberge, 278 U. S. 116
(1928), the Court struck down an ordinance which permitted the
establishment of philanthropic homes for the aged in residential
areas, but only upon the written consent of the owners of
two-thirds of the property within 400 feet of the proposed
facility. [
Footnote 12]
Page 426 U. S. 678
Neither
Eubank nor
Roberge involved a
referendum procedure such as we have in this case; the standardless
delegation of power to a limited group of property owners condemned
by the Court in
Eubank and
Roberge is not to be
equated with decisionmaking by the people through the referendum
process. The Court of Appeals for the Ninth Circuit put it this
way:
"A referendum, however, is far more than an expression of
ambiguously founded neighborhood preference. It is the city itself
legislating through its voters -- an exercise by the voters of
their traditional right through direct legislation to override the
views of their elected representatives as to what serves the public
interest."
Southern Alameda Spanish Speaking Organization v. Union
City, California, 424 F.2d 291, 294 (1970).
Our decision in
James v. Valtierra, upholding
California's mandatory referendum requirement, confirms this view.
Mr. Justice Black, speaking for the Court in that case, said:
"This procedure ensures that
all the people of a
community will have a voice in a decision which may lead to large
expenditures of local governmental
Page 426 U. S. 679
funds for increased public services. . . ."
402 U.S. at
402 U. S. 143
(emphasis added). Mr. Justice Black went on to say that a
referendum procedure, such as the one at issue here, is a classic
demonstration of "devotion to democracy. . . ."
Id. at
402 U. S. 141.
As a basic instrument of democratic government, the referendum
process does not, in itself, violate the Due Process Clause of the
Fourteenth Amendment when applied to a rezoning ordinance.
[
Footnote 13] Since the
rezoning decision in this case was properly reserved to the people
of Eastlake under the Ohio Constitution, the Ohio Supreme Court
erred in holding invalid, on federal constitutional grounds, the
charter amendment permitting the voters to decide whether the zoned
use of respondent's property could be altered.
The judgment of the Ohio Supreme Court is reversed,
Page 426 U. S. 680
and the case is remanded for further proceedings not
inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
As adopted by the voters, Art. VIII, § 3, of the Eastlake City
Charter provides in pertinent part:
"That any change to the existing land uses or any change
whatsoever to any ordinance . . . 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. . . ."
[
Footnote 2]
Respondent also contended that the charter amendment could not
apply to its rezoning application, since the application was
pending at the time the amendment was adopted. The Court of Common
Pleas rejected the argument. Respondent neither appealed this point
nor argued it in the Court of Appeals or the Ohio Supreme Court;
the issue is therefore not before us.
[
Footnote 3]
The Court of Common Pleas, however, invalidated the charter
provision requiring assessment of election costs against the
affected property owner. In affirming, the Court of Appeals also
upheld that portion of the trial court's judgment. No appeal was
taken to the Ohio Supreme Court on this issue. The question was,
accordingly, not passed on by the State Supreme Court, and is
therefore not before us.
[
Footnote 4]
Respondent did not challenge the 55% affirmative requirement as
such. Instead, respondent contended that any mandatory referendum
provision, regardless of the requisite margin for approval,
violated due process as applied to its rezoning application.
[
Footnote 5]
The people of Ohio, in establishing the general assembly,
provided:
"The legislative power of the state shall be vested in a General
Assembly . . . but the people reserve to themselves the power to
propose to the General Assembly laws and amendments to the
constitution, and to adopt or reject the same at the polls on a
referendum vote. . . ."
Ohio Const., Art. II, § 1.
[
Footnote 6]
In Massachusetts, for example, the inhabitants could convene a
town meeting for the purpose of regulating nuisances. A. De Wolf,
The Town Meeting: A Manual of Massachusetts Law 136 (1890).
See
generally Bryan, Town Meeting Government Still Supported in
Vermont, 61 Nat.Civic R. 348 (1972).
[
Footnote 7]
The land use change requested by respondent would likely entail
the provision of additional city services, such as schools and
police and fire protection.
Cf. James v. Valtierra,
402 U. S. 137,
402 U. S. 143
n. 4 (1971). The change would also diminish the land area available
for industrial purposes, thereby affecting Eastlake's potential
economic development.
[
Footnote 8]
By its nature, zoning "interferes" significantly with owners'
uses of property. It is hornbook law that
"[m]ere diminution of market value or interference with the
property owner's personal plans and desires relative to his
property is insufficient to invalidate a zoning ordinance or to
entitle him to a variance or rezoning."
8 E. McQuillan, Municipal Corporations § 25.44, p. 111 (3d ed.,
1965). There is, of course, no contention in this case that the
existing zoning classification renders respondent's property
valueless or otherwise diminishes its value below the value when
respondent acquired it.
[
Footnote 9]
The power of initiative or referendum may be reserved or
conferred "with respect to any matter, legislative or
administrative, within the realm of local affairs. . . ." 5 E.
McQuillan, Municipal Corporations § 16.54, p. 208 (3d ed., 1969).
However, the Ohio Supreme Court concluded that only land use
changes granted by the City Council when acting in a
legislative capacity were subject to the referendum
process. Under the court's binding interpretation of state law, a
property owner seeking relief from unnecessary hardship occasioned
by zoning restrictions would not be subject to Eastlake's
referendum procedure. For example, if unforeseeable future changes
give rise to hardship on the owner, the holding of the Ohio Supreme
Court provides avenues of administrative relief not subject to the
referendum process.
[
Footnote 10]
The Ohio Supreme Court's analysis of the requirements for
standards flowing from the Fourteenth Amendment also sweeps too
broadly. Except as a legislative history informs an analysis of
legislative action, there is no more advance assurance that a
legislative body will act by conscientiously applying consistent
standards than there is with respect to voters. For example, there
is no certainty that the City Council in this case would act on the
basis of "standards" explicit or otherwise in Eastlake's
comprehensive zoning ordinance. Nor is there any assurance that
townspeople assembling in a town meeting, as the people of Eastlake
could do,
Hunter v. Erickson, 393 U.
S. 385,
393 U. S. 392
(1969), will act according to consistent standards. The critical
constitutional inquiry, rather, is whether the zoning restriction
produces arbitrary or capricious results.
[
Footnote 11]
The Supreme Court of Ohio rested its decision solely on the Due
Process Clause of the Fourteenth Amendment.
See 41 Ohio
St.2d 187, 196, 324 N.E.2d 740, 746 (1975). The only questions
presented to this Court in the petition for certiorari concern the
validity of that due process holding. Pet. for Cert. 2.
Accordingly, we confine ourselves to considering whether due
process is denied by the challenged charter amendment.
[
Footnote 12]
The Ohio Supreme Court also considered this Court's decision in
Thomas Cusack Co. v. Chicago, 242 U.
S. 526 (1917). In contrast to
Eubank and
Roberge, the
Cusack Court upheld a neighborhood
consent provision which permitted property owners to waive a
municipal restriction prohibiting the construction of billboards.
This Court in Cusack distinguished
Eubank in the following
way:
"[The ordinance in
Eubank] left the establishment of
the building line untouched until the lot owners should act, and
then . . . gave to it the effect of law. The ordinance in the case
at bar absolutely prohibits the erection of any billboards . . . ,
but permits this prohibition to be modified with the consent of the
persons who are to be most affected by such modification."
242 U.S. at
242 U. S. 531.
Since the property owners could simply waive an otherwise
applicable legislative limitation, the Court in
Cusack
determined that the provision did not delegate legislative power at
all.
Ibid.
[
Footnote 13]
The fears expressed in dissent rest on the proposition that the
procedure at issue here is "fundamentally unfair" to landowners;
this fails to take into account the mechanisms for relief
potentially available to property owners whose desired land use
changes are rejected by the voters. First, if hardship is
occasioned by zoning restrictions,
administrative relief
is potentially available. Indeed, the very purpose of "variances"
allowed by zoning officials is to avoid "practical difficulties and
unnecessary hardship." 8 E. McQuillan, Municipal Corporations §
25.159, p. 511 (3d ed.1965). As we noted,
supra at
426 U. S. 677,
remedies remain available under the Ohio Supreme Court's holding
and provide a means to challenge unreasonable or arbitrary action.
Euclid v. Ambler Realty Co., 272 U.
S. 365 (1926).
The situation presented in this case is not one of a zoning
action denigrating the use or depreciating the value of land;
instead, it involves an effort to change a reasonable zoning
restriction. No existing rights are being impaired; new use rights
are being sought from the City Council. Thus, this case involves an
owner's seeking approval of a new use free from the restrictions
attached to the land when it was acquired.
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.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins,
dissenting.
The city's reliance on the town meeting process of
decisionmaking tends to obfuscate the two critical issues in this
case. These issues are (1) whether the procedure which a city
employs in deciding to grant or to deny a property owner's request
for a change in the zoning of his property must comply with the Due
Process Clause of the Fourteenth Amendment; and (2) if so, whether
the procedure employed by the city of Eastlake is fundamentally
fair?
We might rule in favor of the city on the theory that the
referendum requirement did not deprive respondent of any interest
in property and therefore the Due Process Clause is wholly
inapplicable. [
Footnote 2/1] After
all, when respondent
Page 426 U. S. 681
bought this parcel, it was zoned for light industrial use, and
it still retains that classification. The Court does not adopt any
such rationale; nor, indeed, does the city even advance that
argument. On the contrary, throughout this litigation, everyone has
assumed, without discussing the problem, that the Due Process
Clause does apply. Both reason and authority support that
assumption. [
Footnote 2/2]
Subject to limitations imposed by the common law of nuisance and
zoning restrictions, the owner of real property has the right to
develop his land to his own economic advantage. As land continues
to become more scarce, and as land use planning constantly becomes
more sophisticated, the needs and the opportunities for unforeseen
uses of specific parcels of real estate continually increase. For
that reason, no matter how comprehensive a zoning plan may be, it
regularly contains some mechanism for granting variances,
amendments, or exemptions for specific uses of specific pieces of
property. [
Footnote 2/3] No
responsibly
Page 426 U. S. 682
prepared plan could wholly deny the need for presently
unforeseeable future change. [
Footnote
2/4]
A zoning code is unlike other legislation affecting the use of
property. The deprivation caused by a zoning code is customarily
qualified by recognizing the property owner's right to apply for an
amendment or variance to accommodate his individual needs. The
expectancy that particular changes consistent with the basic zoning
plan will be allowed frequently and on their merits is a normal
incident of property ownership. When the governing body offers the
owner the opportunity to seek such a change -- whether that
opportunity is denominated a privilege or a right -- it is
affording protection to the owner's interest in making legitimate
use of his property.
The fact that an individual owner (like any other petitioner or
plaintiff) may not have a legal right to the relief he seeks does
not mean that he has no right to fair procedure in the
consideration of the merits of his application. The fact that codes
regularly provide a procedure for granting individual exceptions or
changes, the fact that such changes are granted in individual cases
with great frequency, and the fact that the particular code in the
record before us contemplates that changes consistent with the
basic plan will be allowed, all support
Page 426 U. S. 683
my opinion that the opportunity to apply for an amendment is an
aspect of property ownership protected by the Due Process Clause of
the Fourteenth Amendment.
This conclusion is supported by the few cases in this Court
which have decided zoning questions, and by many well reasoned
state court decisions. In both
Eubank v. Cty of Richmond,
226 U. S. 137, and
Washington ex rel. Seattle Title Trust Co. v. Roberge,
278 U. S. 116, the
Court invalidated ordinances for procedural reasons. In
Eubank, the Court held that the method of imposing a
building-line restriction on a property owner was defective. In
Roberge, which is more analogous to this case, the Court
invalidated the requirement that the owners of two-thirds of the
property within 400 feet must give their approval to the
plaintiff's proposed use of his property. Implicitly, both cases
hold that the process of making decisions affecting the use of
particular pieces of property must meet constitutional standards.
[
Footnote 2/5]
Although this Court has decided only a handful of zoning cases,
literally thousands of zoning disputes have been resolved by state
courts. Those courts have repeatedly identified the obvious
difference between the adoption of a comprehensive citywide plan by
legislative action and the decision of particular issues involving
specific uses of specific parcels. In the former situation, there
is generally great deference to the judgment of the
Page 426 U. S. 684
legislature; in the latter situation, state courts have not
hesitated to correct manifest injustice.
The distinction was plainly drawn by the Supreme Court of
Oregon:
"Ordinances laying down general policies without regard to a
specific piece of property are usually an exercise of legislative
authority, are subject to limited review, and may only be attacked
upon constitutional grounds for an arbitrary abuse of authority. On
the other hand, a determination whether the permissible use of a
specific piece of property should be changed is usually an exercise
of judicial authority, and its propriety is subject to an
altogether different test."
Fasano v. Board of County Comm'rs, 264 Ore. 574,
580-581,
507 P.2d
23, 26 (1973). And the Supreme Court of Washington made the
point in this way:
"Zoning decisions may be either administrative or legislative,
depending upon the nature of the act. But, whatever their nature or
the importance of their categorization for other purposes, zoning
decisions which deal with an amendment of the code or
reclassification of land thereunder must be arrived at fairly. The
process by which they are made, subsequent to the adoption of a
comprehensive plan and a zoning code, is basically
adjudicatory."
"Generally, when a municipal legislative body enacts a
comprehensive plan and zoning code, it acts in a policymaking
capacity. But in amending a zoning code, or reclassifying land
thereunder, the same body, in effect, makes an adjudication between
the rights sought by the proponents and those claimed by the
opponents of the zoning change. The parties whose interests are
affected are readily identifiable. Although important questions of
public
Page 426 U. S. 685
policy may permeate a zoning amendment, the decision has a far
greater impact on one group of citizens than on the public
generally."
Fleming v. City of Tacoma, 81 Wash. 2d
292, 298-299,
502 P.2d
327, 331 (1972) (citations omitted). [
Footnote 2/6]
Specialists in the practice of zoning law are unhappily familiar
with the potential for abuse which exists when inadequate
procedural safeguards apply to the dispensation of special grants.
The power to deny arbitrarily may give rise to the power to exact
intolerable conditions. [
Footnote
2/7] The insistence on fair procedure in this area
Page 426 U. S. 686
of the law falls squarely within the purpose of the Due Process
Clause of the Fourteenth Amendment.
II
When we examine a state procedure for the purpose of deciding
whether it comports with the constitutional standard of due
process, the fact that a State may give it a "legislative" label
should not save an otherwise invalid procedure. We should, however,
give some deference to the conclusion of the highest court of the
State that the procedure represents an arbitrary and unreasonable
way of handling a local problem.
In this case, the Ohio courts arrived at the conclusion that
Art. VIII, § 3, of the charter of the city of Eastlake, as amended
on November 2, 1971, is wholly invalid in three stages. [
Footnote 2/8] At no stage of the case
has
Page 426 U. S. 687
there been any suggestion that respondent's proposed use of its
property would be inconsistent with the city's basic zoning plan,
[
Footnote 2/9] or would have any
impact on the
Page 426 U. S. 688
municipal budget or adversely affect the city's potential
economic development. [
Footnote
2/10]
First, the requirement that the property owner pay the cost of
the special election was invalidated in the trial court and in the
Ohio Court of Appeals. [
Footnote
2/11] Second, the Ohio Supreme Court held that the mandatory
referendum was "clearly invalid" insofar as it purported to apply
to a change in land use approved by the City Council "in an
administrative capacity." Without explaining when the Council's
action is properly characterized as legislative, instead of
administrative, the court then held that, even though its approval
in this case was legislative, the entire referendum requirement was
invalid. The court reasoned:
"Due process of law requires that procedures for the exercise of
municipal power be structured such that fundamental choices among
competing municipal policies are resolved by a responsible organ of
government. It also requires that a municipality protect
individuals against the arbitrary exercise of municipal power by
assuring that fundamental policy choices underlying the exercise of
that power are articulated by some responsible organ of
municipal
Page 426 U. S. 689
government.
McGautha v. California (1971),
402 U. S.
183,
402 U. S. 256,
402 U. S.
270. The Eastlake charter provision ignored these
concepts and blatantly delegated legislative authority, with no
assurance that the result reached thereby would be reasonable or
rational. For these reasons, the provision clearly violates the due
process clause of the Fourteenth Amendment."
41 Ohio St.2d 187, 196, 324 N.E.2d 740, 746 (1975) (footnote
omitted).
The concurring opinion expressed additional reasons for
regarding the referendum requirement as arbitrary. Speaking for
four members of the Ohio Supreme Court, Justice Stern stated:
"There can be little doubt of the true purpose of Eastlake's
charter provision -- it is to obstruct change in land use by
rendering such change so burdensome as to be prohibitive. The
charter provision was apparently adopted specifically, to prevent
multifamily housing, and indeed was adopted while Forest City's
application for rezoning to permit a multifamily housing project
was pending before the City Planning Commission and City Council.
The restrictive purpose of the provision is crudely apparent on its
face. Any zoning change, regardless of how minor, and regardless of
its approval by the Planning Commission and the City Council, must
be approved by a city-wide referendum. The proposed change must
receive, rather than a simple majority, at least a 55 percent
affirmative vote. Finally, the owner of the property affected is
required to pay the cost of the election, although the provision
gives no hint as to exactly which costs would be billed to a
property owner."
"There is no subtlety to this; it is simply an attempt to render
change difficult and expensive under the guise of popular
democracy. "
Page 426 U. S. 690
"Even stripped of its harsher provisions, the charter provision
poses serious problems. A mandatory, city-wide referendum which
applies to any zoning change must, of necessity, submit decisions
that affect one person's use of his property to thousands of voters
with no interest whatever in that property. We need only imagine
the adoption of this same provision in a city such as Cleveland. By
such a provision, rezoning for a corner gasoline station would
require the approval of hundreds of thousands of voters, most of
them living miles away, and few of them with the slightest interest
in the matter. This would be government by caprice, and would
seriously dilute the right of private ownership of property. The
law recognizes that the use a person makes of his property must
inevitably affect his neighbors and, in some cases, the surrounding
community. These real interests are entitled to be balanced against
the rights of a property owner; but a law which requires a property
owner, who proposes a wholly benign use of his property, to obtain
the assent of thousands of persons with no such interest, goes
beyond any reasonable public purpose."
Id. at 199-200, 324 N.E.2d at 748-749.
As the Justices of the Ohio Supreme Court recognized, we are
concerned with the fairness of a provision for determining the
right to make a particular use of a particular parcel of land. In
such cases, the state courts have frequently described the
capricious character of a decision supported by majority sentiment,
rather than reference to articulable standards. [
Footnote 2/12] Moreover, they have limited
Page 426 U. S. 691
statutory referendum procedures to apply only to approvals of
comprehensive zoning ordinances, as opposed to amendments affecting
specific parcels. [
Footnote 2/13]
This conclusion has been supported by characterizing particular
amendments as "administrative," and revision of an entire plan as
"legislative." [
Footnote
2/14]
Page 426 U. S. 692
In this case, the Ohio Supreme Court characterized the Council's
approval of respondent's proposal as "legislative." I think many
state courts would have characterized it as "administrative." The
courts thus may well differ in their selection of the label to
apply to this action, but I find substantial agreement among state
tribunals on the proposition that requiring a citywide referendum
for approval of a particular proposal like this is manifestly
unreasonable. Surely that is my view.
The essence of fair procedure is that the interested parties be
given a reasonable opportunity to have their
Page 426 U. S. 693
dispute resolved on the merits by reference to articulable
rules. If a dispute involves only the conflicting rights of private
litigants, it is elementary that the decisionmaker must be
impartial and qualified to understand and to apply the controlling
rules.
I have no doubt about the validity of the initiative or the
referendum as an appropriate method of deciding questions of
community policy. [
Footnote 2/15]
I think it is equally clear that the popular vote is not an
acceptable method of adjudicating the rights of individual
litigants. The problem presented by this case is unique, because it
may involve a three-sided controversy in which there is at least
potential conflict between the rights of the property owner and the
rights of his neighbors, and also potential conflict with the
public interest in preserving the city's basic zoning plan. If the
latter aspect of the controversy were predominant, the referendum
would be an acceptable procedure. On the other hand, when the
record indicates without contradiction that there is no threat to
the general public interest in preserving the city's plan -- as it
does in this case, since respondent's proposal was approved by both
the Planning Commission and the City Council, and there has been no
allegation that the use of this eight-acre parcel for apartments,
rather than light industry, would adversely affect the community or
raise any policy issue of citywide concern -- I think the case
should be treated as one in which it is essential that the private
property owner be given
Page 426 U. S. 694
a fair opportunity to have his claim determined on its
merits.
As Justice Stern points out in his concurring opinion, it would
be absurd to use a referendum to decide whether a gasoline station
could be operated on a particular corner in the city of Cleveland.
The case before us is not that clear, because we are told that
there are only 20,000 people in the city of Eastlake. Conceivably,
an eight-acre development could be sufficiently dramatic to arouse
the legitimate interest of the entire community; it is also
conceivable that most of the voters would be indifferent and
uninformed about the wisdom of building apartments, rather than a
warehouse or factory, on these eight acres. The record is silent on
which of these alternatives is the more probable. Since the
ordinance places a manifestly unreasonable obstacle in the path of
every property owner seeking any zoning change, since it provides
no standards or procedures for exempting particular parcels or
claims from the referendum requirement, and since the record
contains no justification for the use of the procedure in this
case, I am persuaded that we should respect the state judiciary's
appraisal of the fundamental fairness of this decisionmaking
process in this case. [
Footnote
2/16]
Page 426 U. S. 695
I therefore conclude that the Ohio Supreme Court correctly held
that Art. VIII, § 3, of the Eastlake charter violates the Due
Process Clause of the Fourteenth Amendment, and that its Judgment
should be affirmed.
[
Footnote 2/1]
The Fourteenth Amendment provides: "No State shall . . . deprive
any person of . . property, without due process of law. . . ."
U.S.Const., Amdt. 14, § 1.
[
Footnote 2/2]
The Ohio Supreme Court opinion is reported at 41 Ohio St.2d 187,
324 N.E.2d 74 (1975).
[
Footnote 2/3]
"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).
[
Footnote 2/4]
"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).
[
Footnote 2/5]
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
426 U. S. 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.
[
Footnote 2/6]
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).
[
Footnote 2/7]
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).
[
Footnote 2/8]
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."
[
Footnote 2/9]
Both the City Planning Commission and the City Council expressly
approved the proposal.
[
Footnote 2/10]
There is no support in the record for the speculation in the
Court's opinion,
ante at
426 U. S. 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.
[
Footnote 2/11]
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.
[
Footnote 2/12]
"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).
[
Footnote 2/13]
"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).
[
Footnote 2/14]
"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).
[
Footnote 2/15]
James v. Valtierra, 402 U. S. 137,
sustained the "use of referendums to give citizens a voice on
questions of public policy."
Id. at
402 U. S. 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
402 U. S. 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.
[
Footnote 2/16]
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.