Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield

• Decision Date: 05 February 1990
• Docket Number: No. 89-1819,89-1819
• Citation: 907 F.2d 239
• Parties: SMITHFIELD CONCERNED CITIZENS FOR FAIR ZONING, et al., Plaintiffs, Appellants, v. The TOWN OF SMITHFIELD, etc., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 239

907 F.2d 239

111 A.L.R.Fed. 835

SMITHFIELD CONCERNED CITIZENS FOR FAIR ZONING, et al Plaintiffs, Appellants, v. The TOWN OF SMITHFIELD, etc., et al., Defendants, Appellees.

No. 89-1819.

United States Court of Appeals First Circuit.

Heard Feb. 5, 1990.

Decided July 2, 1990.

As Amended July 3, 1990.

John B. Webster with whom Michael A. Kelly and Adler Pollock & Sheehan Inc., Providence, R.I., were on brief, for plaintiffs, appellants.

C. Russell Bengtson and Edmund L. Alves, Jr., with whom Carroll, Kelly & Murphy, Gorham & Gorham, Edward W. Moses and Asquith, Merolla, Anderson, Ryan & Wiley, Providence, R.I., were on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

The twenty-five appellants brought suit in the district court against the Town of Smithfield, Rhode Island, the Town Council, and the individual Council members, seeking a declaration that a new zoning ordinance adopted by the Town Council was invalid, an injunction against its enforcement, and $50 million in damages. The district court dismissed the complaint for failure to state a claim upon which relief may be granted. 719 F.Supp. 75. This appeal followed.

The challenged new zoning ordinance (the "Ordinance") affects large portions of the town. ¹ It provides for a variety of residential, commercial, industrial and public uses, prescribes the geographical districts where each use will be permitted, establishes performance standards addressing a number of environmental concerns, and creates a zoning board of review empowered to interpret the Ordinance and grant variances and exceptions. The plaintiffs allege that the Ordinance has substantially altered the municipality's zoning designations in ways that adversely impact upon them. Most complain that it changed the designation of their property from commercial or industrial to residential.

Eighteen of the 25 plaintiffs are individuals or entities that own property and/or operate businesses in Smithfield. Four plaintiffs were identified only as individuals who live outside of Smithfield or persons who claim to have been damaged in some unspecified way. The remaining plaintiffs are Smithfield Concerned Citizens for Fair Zoning, described as a nonprofit organization located in Smithfield, and two of its principals.

Suing under 42 U.S.C. Sec. 1983, plaintiffs challenged the new Ordinance and defendant's actions on numerous grounds, including that they violated the takings clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment; the conspiracy section of the Civil Rights Act, 42 U.S.C. Sec. 1985(3); the Fair Housing Act of 1968, 42 U.S.C. Secs. 3601 et seq.; and a variety of state constitutional and statutory provisions. The district court addressed and rejected each of these attacks in its opinion. On appeal plaintiffs focus on the argument that the Ordinance, on its face, violates their right to substantive due process derived from the Fourteenth Amendment of the Federal Constitution.

Plaintiffs' claims of error amount to three separate contentions:

1. The district court erred in holding that their claims were not yet ripe for review because they had not availed themselves of the procedures required to obtain a variance under the challenged Ordinance. Plaintiffs argue that a variance would not redress their injury, which derived from the act of passing the Ordinance. The gravamen of their claim is that the Ordinance, by its very existence, violates their fundamental constitutional right under the due process clause of the Fourteenth Amendment to be free from the enactment of "arbitrary, capricious and unreasonable" legislation; and such a claim, they assert, is ripe for review the moment such an ordinance comes into existence.

2. The district court erred in dismissing their substantive due process claim on the merits. The Ordinance, they argue, is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). The provisions of the Ordinance (the Ordinance has transformed over half the land in the town into non-conforming uses, has increased minimum lot size to 4.6 acres in some segments and 2.6 acres in others, has increased residential frontage, set back and density requirements, and has converted land formerly zoned commercial or industrial into residential even though residential use is allegedly incompatible with existing uses in the immediate vicinity) are alleged to harm, rather than benefit the town; and it is further alleged that the Ordinance was adopted in a totally arbitrary way, without any consideration at all being given to existing conditions, the needs of the town, principles of sound land-use planning, and considerations of fairness.

3. The court erred in making a specific factual finding in ruling on the defendants' motion to dismiss--i.e., that the purposes stated in the preamble to the Ordinance were the "actual" purposes of the Town Council in passing the Ordinance--when it should have limited itself to rulings of law.

We discuss each of the above in turn.

I. RIPENESS

The district court invoked Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), in support of its ruling that plaintiffs' substantive due process claim cannot be deemed ripe until plaintiffs have sought final decisions from the Smithfield Zoning Board by applying for variances. Until that time, said the court, there is no basis for determining whether or to what extent they have been deprived of their property.

Williamson was a suit by a developer whose plans for developing a particular tract of land had been blocked by a change in the local zoning laws. The suit was brought on the basis of both the just compensation clause and the due process clause. The Supreme Court held that a regulatory taking claim invoking either of the two clauses was unripe until the governmental entity charged with implementing the regulation had reached a final decision regarding the application of the regulations to the property at issue. A final decision would not be reached until concrete plans for development were submitted and disapproved and application for variances made and denied.

Williamson, however, is inapposite to the present case. The theory of due process invoked by the plaintiffs in Williamson was that "regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment." Williamson, 473 U.S. at 197, 105 S.Ct. at 3122. Under this particular theory of due process, the step of applying for variances must of necessity become a prerequisite to bringing a due process challenge--whether facial or as-applied--because only by applying for variances would it become possible to learn whether or not the zoning ordinance had the same effect as a taking by eminent domain. If a variance were granted, any taking claim would disappear. Here, plaintiffs' theory of substantive due process is markedly different from that propounded in Williamson. Rather than relying on Pennsylvania Coal v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922) (regulation that goes too far will be recognized as a taking), as did the plaintiff in Williamson, plaintiffs here invoke what they style their "fundamental constitutional right to be free from arbitrary, capricious and unreasonable legislation." Under this theory, they assert that the Ordinance, as a whole, is arbitrary, capricious and unreasonable, entitling them to a declaration that the Ordinance is invalid on its face. As in Euclid v. Ambler Realty Co., 272 U.S. at 386, 47 S.Ct. at 117-18:

The effect of the allegations of the bill is that the ordinance of its own force operates greatly to reduce the value of appellee's lands and destroy their marketability for industrial, commercial and residential uses; and the attack is directed, not against any specific provision or provisions, but against the ordinance as an entirety. Assuming the premises, the existence and maintenance of the ordinance, in effect, constitutes a present invasion of appellee's property rights and a threat to continue it. Under these circumstances, ... jurisdiction is clear. ²

The district court erred in ruling that a facial substantive due process challenge to a zoning ordinance under the above theory is not ripe for adjudication until variances have been applied for (and inverse condemnation proceedings invoked) ³. See Euclid v. Ambler Realty Co., 272 U.S. at 386, 47 S.Ct. at 117 (A suit to enjoin the enforcement of a zoning ordinance with respect to the plaintiff's land need not be preceded by any application on his part for a building permit, or for relief under the ordinance from the zoning board of appeals, where the gravamen of the bill is that the ordinance of its own force operates unconstitutionally to reduce the value of the land and destroy its marketability, and the attack is not against specific provisions but against the ordinance in its entirety.); Pennell v. City of San Jose, 485 U.S. 1, 9-14, 108 S.Ct. 849, 856-59, 99 L.Ed.2d 1 (1988) (plaintiff's "taking" claim was premature, as plaintiff had failed to avail himself of the provisions of the ordinance permitting relief from its burdens, but plaintiff's facial substantive due process challenge was not unripe for consideration); Beacon Hill Farm Assocs. II v. Loudoun County Bd. of Supervisors, 875 F.2d 1081, 1084-85 (4th Cir.1989) (A developer's claim that a zoning ordinance regulating mountainside development was facially unconstitutional as a violation of substantive due process was ripe for adjudication; there was no necessity for final determination...