BRIEF FOR RESPONDENT IN NATIONAL MOOT
COURT COMPETITION 1973-74, INCORPORATED
VILLAGE OF BUCOLIA V. AMALGAMATED OFFICE
\~ORKERS U
iHON
WVNETTE J. HEWETT
JAMES
HAL
R.
R.
MARDIS
UPCHURCH
No. 0001
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1973
INCORPORATED VILLAGE OF BUCOLlA,
Petitioner,
v.
AMALGAMATED OFFICE WORKERS UNION,
Respondent.
On Writ of Certiorari to the
Court of Appeals for the Twelfth Circuit
BRIEF FOR RESPONDENT
Texas Tech University .
School of Law
Lubbock, Texas
November I, 1973
Wynette J . Hewett
James R. Mardis
Hal R. Upchurch
Attorneys for Respondent
I N 0 E X
Page
.. .
. . . . .. . .. " " " " " " " " " " " " " " " " " " " " "
iv
Opinions Below ""."""" .. ",,.,,"""""""" ~ " " " " " " " " " " " " " " " "." " " " " " " " "
1
Jurisdiction """".,""""""""""""
.0" " " " " " " " " " " " " " " " " " " " " " " .. "
.1
" ........ "......................................................................
2
Constitutional Provisions and Statutes Involved ••••••••••.••
2
Sta tement .......... .. .................................... "." .............. , .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
3
S~ary
4·
Index of Authorities " " " " " " "
Questions
Present~d
".'
It "
"
"
"
of Argument ..............................
Argument and AuthQrities ....................
I.
e ' " """ .. .. .. .. .. .. .. .. .. .. .... .... .. .. .. .. .... ..
e " .......
~
..
!' .......................... " " .. ....
6
THE PETITIONER WAS NOT ENTITLED TO $UMMARY
JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL
FACT ARE YET TO BE R$SOLVED ...... .. ................ .. ...... .. ....
A.
B.
e ' .. .. .. .. .. .. ..
6
The Petitioner has the burden of demonstrating the absence of genuine issues
of material fact ............................ ~ ...................... " .. .. .. .. .. .. ..
8
Issues of material fact concerning the
pattern of discrimination are unresolved ..
.. .. .. .. .. .. .. .. ..
9
Inferences of fact must be drawn
against the moving party ...................•..
9
1.
C.
D.
2.
A discriminatory purpose can be
inferred from the facts in the Record ••••••••• 11
3.
Summary judgment is inappropriate
when material issues of fact involve
questions of motive, intent, and purpose •••••• 12
Issues of material fact concerning the
environmental impact are unresolved ••••••••••••••• 16
1.
Summary judgment is inappropriate
when the moving party relies solely
upon the opinion of an expert •••••••••••••••.• 16
2.
Surrounding circumstances indicate
that the credibility of the expert
should be tested at trial . . . . . . . . . . . . . . . . ..... 18
Summary judgment was inappropri,ate because
the questions involved are of far-flung
public importance ................................. 19
i
Page
II.
THE PETITIONER WAS NOT ENTITLED TO SUMMARY
JUDGMENT BECAUSE CONCERN FOR FUTURE ENVIRONMENTAL PROBLEMS FAILS, AS A MATTER OF LAW,
TO CONSTITUTE A COMPELLING INTEREST FOR
DISCRIMINATION ...................... ,. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .... 22
A.
B.
The effect of the moratorium as applied
is to discriminate against the Workers •••••••••••• 23
1.
The moratorium renders the exercise
of fundamental and constitutional
rights dependent upon the classification of wealth ............. "....................................... """ 23
2.
The moratorium results in discrimination on the basis of race . . . . . . . . . . . . . . ...... 26
3.
The City's position that the moratorium is nondiscriminatory because
it applies to all multiple-housing
units is incorrect as a matter of law ••••••••• 27
The City failed to justify the moratorium
as a legitimate government interest •.••••••••••..• 28
1.
The "compelling interest" test is the
proper burden for justification •••••••••••••••• 28
2. , The City failed, as a matter of law,
to show a compelling interest for
the moratorium .. .. .. .. .. .... .. .................. .. ............................ 30
III.
THE PETITIONER WAS NOT ENTITLED TO SUMMARY
JUDGMENT BECAUSE THE TOTAL EXCLUSION OF
MULTIPLE-HOUSING UNITS FROM AN AREA IS, AS
A MATTER OF LAW, DETRIMENTAL TO THE GENERAL
WELFARE ..............................................................................................
A.
B.
33
The sole purpose of the moratorium was
to prevent the construction of multiplehous ing uni ts .. .............. .. .............. . ..................... _" ................ " 3 3
1.
The Union's status as a non-resident
was immaterial to the denial of a
water permit ................................................................... 34
2.
The City has not prohibited large
scale development in any form other
than multiple-housing units •••••••••• • ••••••.• 35
Multiple-housing units would contribute
to the general welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1.
The availability of multiple-housing
would have social utility to Bucolia •••••••••• 36
ii
Page
2.
C.
The exclusion of multiple-housing
harms the general welfare of the
surrounding region .•..•........•.....•••••...• 37
As a matter of law, the City has no
right to totally exclude a land-use
which contributes to the general welfare
Conclusion
Certificate
J\1?1?E!nCliC:~!i
. ... .... .. 40
....... ....................... ..... .............. . 42
••••
•
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•••••••••••••••••••••••••
U
•
0
••••
0
•
¥
•••
•
•••
42
•••••••••••••••••••••••••••••••••••••••••••••••••• J\--l.
iii
INDEX OF AUTHORITIES
Page
Cases
American F idelity & Casualty Co. v. London &
·Ed i nburgh Ins. Co., 354 F. 2d 214
(4 t h eire 1965) ................................ .. .... .. .................................. 10
American University v. Prentiss, 113 F. Supp.
389
(D.D.C .. 1953)
.............................................. .. ...................... 40
Appeal of Girsch, 437 Pa. 237, 263 A.2d 395
(1970) .. ............ .. .. .. .. .. .............. ...... .................................... .. .......... 41
Appeal of Kit-Mar Builders, Inc ., 439 Pa . 466 ,
268 A.2d 765 (1970) •.•. . •• • •••••••••. •. ••• . •••• • 31 , 40
Arenas v . Un ited States , 322 U.S. 419 (1944)
• •••••••.. • .••.• 20
Astor v. Te xas Gulf Sulphur Co. , 306 F . Supp.
1 333 (S.D.N. Y .. 1969) .... .. .. .. .. .. .. .. .. .... ........ .. .. .. .... .. .... .... ........ .... 13
Bell v. Maryland, 378 U.S .
226 (1964)
.••..•.. • •••••••• • •. •• . 24
Board of Zoning Appeals of Decatur v. Decatur
Ind . Co . of Jehovah ' s Witnesses , 233
Ind. 83 , 117 N.E . 2d 115 (1954) • ••• •• ••••• •• . •• ••• . . . 40
Borough of Cresskill v. Borough of Dumont ,
15 N.J . 238, 104 A.2d 441 (1954) • • •• • • • ••• • •• • •••... 34
Brunswick Corp. v . Vinebe r g , 370 F.2d 605
( 5th eir e 1967) .. .. .. .. .... .. .. .... ...... .. ...... .. .... .. ........ .... .. .... .. .. ...... .... 22
City of Chicago v. Sachs , 1 Ill . 2d 342,
1 15 N .E . 2d 762 (1953) ........ .... .. .......... .. .... .. .......... .. .............. .. .. 40
City of Milwaukee v. Public Service Cornrn' n ,
268 Wise . 116 , 66 N.W . 2d 716 (1954) ••••••••••••• • ••• 34
Cole v . Housing Autho r ity of Newport, 435
F . 2d 807 ( 1s t eir e 1970) .. . ...• . . . • • . . . . . . . . . . . . 25, 29
Confederacion de la Raza Un i da v . City of
Morgan Hill , 324 F. Supp. 895
(N.D . Cal . 1971)
.... .. ...... .... ........ ...... .. .. ..
0
°. . .
........
..
............
......
..
32
.Crane Co. v . American Standard, Inc. , 326
F . Supp . 766 (S.D . N.Y. 1971) •• • •• •••••• •• ••• • • • ••.. • 13
Dailey v . City of Lawton , 425 F . 2d 1037
( 1 0th eir e 1970) . •.. ... . . . . . . . . . . . .. . . . .. . • . ... . 15 , 26
iv
Page
Dailey v. City of Lawton, 296 F . Supp. 266
(w.O. Okla. 1969) .. .......................................... .... ...................... 15
Dayton Power & Light Co. v. Public Utilities
Conun'n, 292 U.S. 290 (1934) •..•••••••••••• •• .• • ••••• 16
Douglas v. California, 372 U.S. 353 (1963)
•.••••..•••..•..•• 29
Dulansky v. Iowa-Illinois Gas & Electric Co.,
191 F.2d 881 (8th Cir. 1951) ••••••••••••..•••••• 17, 18
Eccles v . Peoples Bank, 333 U.S. 426 (1948)
Edwards v. California, 314 U.S . 160 (1941)
.•••.••••••••••.• 20
•••••••••••••••••. 24
Elgin, Joliet & Eastern Ry. v. Burley, 325
U.S. 711 (1945) " .. .... .............................................. .. .......... ...... .. 10
Elliott V. Massachusetts Mutual Life Ins. Co.,
388 F.2d 362 (5th Cir. 1968) • .. • • • ••••••••••••••..•. 17
Exton Quarries, Inc . v. Zoning Board of
Adjustment of West Whiteland Township, 425 Pa. 43 i 228 A.2d 169 (1967)
•••••••• • ••••.• 41
Ferguson v. Omnimedia, Inc. , 469 F.2d 194
(1st eire 1972) ...... .. ............ .......... ..... .. .................. .. ................ 13
Gautreaux v. Chicago Housing Authority, 265
F . Supp. 582 (N.D. Ill. 1967) ••••.•••••••••••••.•..• 14
Gomillion v. Lightfoot, 364 U. S . 339 (1960)
•• • •••••••••••••• 23
Harper v. Virginia Board of Elections , 383
u.s.
663 (1966)
.......................................................................... 29
Hawkins v. Town of Shaw, 437 F.2d 1286
(5th Cir. 1971), aff'd en banc,
461 F.2d 1171 (1972) ..•......... ~ . . . . . . . . . . . . . . . . 26, 27
Heyward v. Public Housing Administration ; 238
F.2d 689 (5th Cir . 1956) .•. •• .• •• •• • •••••• •.• ... 20, 21
Hunter v. Erickson, 393 U.S. 385 (1969)
•• ••. •••..• •.• ••• 27, 28
James v. Atchison, Topeka & Santa Fe Ry.,
464 F.2d 173 (10th Cir. 1972) ••••.•.•••••••.•.•••••• 10
James v . Valtierra, 402 U. S. 137 (1971)
• ••••••••••••••••.•.• 27
Johnson v. Louisiana State Employment Service,
301 F. Supp. 675 (W.D. La. 1968) • ••.•••••••••••••••• 14
Kennedy v. Silas Mason Co., 334 U.S. 249 (1948)
v
•••••••••••.• 20
Page
Kennedy Park Homes Ass ' n v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970), cert.
denied, 401 u.s. 1010 (1971) •••. • . . ...•••..••••• 12, 31
Kennedy Park Homes Ass'n v. City of Lackawanna,
318 F . Supp. 669 (W.D.N.Y. 1970) ••....•.•.•.•••....• 31
Kin g v. New Rochelle Municipal Housing Authori ty. 442 F.2d 646 (2d Cir. 1971), cert.
denied, 404 U.S. 863 (1971) ....•.....•••••..••••.•.. 24
Knapp v . Kinsey, 249 F.2d 797 (6th Cir. 1957)
. • .. •. •..•.. . .• 20
Korematsu v. United States , 323 U.S . 214 (1944)
• . •• •••••.... 30
Kunzler v. Hoffman, 48 N.J. 277, 225 A.2d
321 (1966)
.............. .. ............ .... . . . . . . . " . ... . .. 39
u. s .
Lane v . Wilson, 307
26B (1939)
............ ... ... . .... . .... . 15
Lindsey v. Normet, 405 U.S . 56 (1972)
•• • ••••.••.•• •••• •• ••. . 24
Loving v. Virginia, 388 U.S. 1 (1967 ) .. .. .. . .. ..
. .. . .. . . . .. . . .. . .
28 , 29
Lundeen v. Cordner ; 356 F.2d 169 (8th Cir.
1966)
..........
co
. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
McDonald v. Board of Election Comm'r of
Chicago , 394 U. S. 802 (1969) •••••••• • •.. . . • .•.••.. . . 29
McGowan v. Maryland, 366 U.S . 420 (1 961)
• ••• •• •• • •.•• .••. .•. 28
McLaughlin v. Florida, 379 u.S. 184 (1964)
• • •••••••.••• .. •.• 28
Manufacturers Trust Co . v. Rogers, 181
F . Supp . 116 (S.D.N.Y . 1960) •••••.••.••.•.....•.•..•
8
Mongiello v. Borough of Hightstown, 17
N.J. 611, 112 A.2d 241 (1955 ) ••••.• . •.• .• •••.••••.•• 35
Monroe v. Pa pe , 365 U.S. 167 (1961)
. ...• •. . • . •• .•..•••••• •.. 25
. National Land & Implement Co . v. Kohn,
419 Pa. 504 , 215 A. 2d 597 (1965)
•••••••••••..•.•...• 31
National Sc re en Service Corp. v . Poster
Exchange , Inc. , 305 F.2d 647
(5th eir e 1962) .......................... .. .. .... .... ...... ...... .. ...... ........ .. ......
8
Norate Corp. v. Zoning Board of Adjustment
of Upper Moreland Township , 417 Pa.
397 , 207 A. 2d 890 (1965) •••• .• •••..• . ••••••••• •• •. . • 41
Oakwood at Madison, Inc . v .• Township of Madison ,
117 N.J. Super . 11, 283 A. 2d 353 (1971) • . ••••.•• .•.. 37
vi
Page
Peterson v. City of Greenville, 373 u.s. 244
(1963)
....... . . . . . . .. . ........ .. .... . .. . ............... " •.• 22
Poller v. Columbia Broadcasting System,
368 u.s . 464 (1962) . . . . . . . . . . . . . . . • ....... 7, 8, 12, 13
Progress Development Corp. v. Mitch e l l.
286 F.2d 222
(7th eire 1961)
. . . . . . . . . . . . . . . . . . . • • ... 15
Ranjel v. City of Lansing, 417 F.2d 321
(6th Cir . 1969), cert. denied,
397
u.s.
9 80
(1970 )
.. • . • • . . . • . . . • . . • . . . . . • • . • . • . . . . . 28
Reitman v. Mulkey, 387 u.s. 369 (1967)
•• ••• .••••• • ••••••••.• 15
Repsold v . New York Life Ins . Co., 216
F.2d 479 (7th eir e 1954) .... .... • ... . . . . . . . . . . . . ....
Ridley v. Pennsylvania Public Utility Comm'n,
172 Pa. Super. 472, 94 A.2d 168 (1953)
7
• •••••. • ••••.• 38
Sartor v. Arkansas Natural Gas Corp., 321
u.s.
620
(1944)
... . . .. .. . . ... . . . . . . . . . ... . . .. .. .. .. 16 , 17
Shapiro v. Thompson, 394 u . S . 618 (1969)
••••.•• •••• •.••• 24, 29
Sheridan v . Garrison, 415 F . 2d 699 (5th Cir .
1969) , cert. denied, 396 u.S . 1040
(1970) .. .... .... .. .......... ............ .. .. .. .. .......... . . .. . . . . . . . . . . . . ........
Shelly v . Kraemer, 334 u.S . 1 (1948)
8'
•• • • •• •• •• •• • •• ••••• • • •• 28
Sinderman v. Perry , 430 F.2d 939 (5th Cir .
1970)
.............. .. ......
0 ' .
........
....
........
..
..
..
..
..
....
..
..........
..
....................
20
Sisters of Providence of St . Mary of the Woods
v. City of Evanston , 335 F. Supp. 396
(N.D . Ill . 1971) •• •• •••• • ••••• •••••• 13, 14, 21, 25, 27
Smith v . Pittsburgh Gage & Supply Co., 464
F.2d 870 (3d eire 1972) . .. ...... : . . . . . . . . . . . •. ...... 11
Southern Alameda Spanish Speaking Organization v. City of Union City, 424
F.2d 291 (9th Cir. 1970) •• • ~ . ••••• •• • . • •••••••• • 26 , 31
Steel Hill Development, Inc. v . Town of
Sanbornton, 469 F.2d 956 (1st Cir. 1972)
• • •••••• _ 31, 32
Township of River Vale v. -Town of Orangetown, 403 F . 2d 684 (2d Cir . 1968) •••• • •••••• •• ••. . .. 40
United States v . Bob Lawrence Realty, Inc .
327 F. Supp. 487 (N.D. Ga. 1971) ••• . • • •••••• ••• • • • • • 10
vii
Page
United States v. Diebold, 369
u.s.
..............................
654 (1962.)
United States v. Guest, 383 U.S. 745 (1966)
9
••••• •..•••• ••..• 24
Un i ted States v. United States Gypsum Co.,
340
u.s.
76
(1950)
.................................................................... 14
United States v. Perry, 431 F.2d 1020
(9th eire 1970) .......................................................................... 20
Village of Euclid v. Amble r Realty Co. ,
272 U. S. 365 (1926) . ...•....... • ...•••..... • .•• • 33 , 38
Village of Univers i ty Heights v. Cleveland
Jewish 'Orphans ' Home, 20 F .2 d 743
(6th Cir. 1927), cert. denied, 275
U.S .. 569
(1927)
.. .... ...... .. .... .. .... .. .... .......... .... .... ...................... .... 40
Whitaker v. Coleman, 115 F.2d 305 (5th
Cir .. 194 0 )
...... ....
<;I
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
..
7
White Motor Co. v. Un ited States , 372 U.S.
253 (1963)
.. .................. ........ .... ...... .. ................................ .. ........ .. 20
Statutes
...... . .... . .... . . ............ . . .............. 25
Civil Rights Act, 42 U.S.C .
§
1981
Civil Rights Act, 42 U.S.C .
§
1982
Civil Rights Act, 42 U.S.C.
§
1983 .. .. .. .. .
Fair Housing Act, 42 U.S.C .
§
3601 . . ............ . .... . .... . ...... .... ...... .... . 25
FED. R. CIV. P.
Sea)
..........................
....
II
....
..
..
..
..
..
..
....
25
.. . . .. . . . . . . . . . .. . . .. .. .. . . 25
...... .. .. .. ...... ...................................... .. ............ .. .. . ....
FED. R. CIV. P. 56
23
6, 7, 16 , 17 , 18, 22
Miscellaneous
Aloi , Goldberg, & Wh i te , Racial and Economic
Segregation by Zoning: Death Knell
for Home Rule? , 1 U. TOLEDO L. REV.
65
(1969)
.. .. ...... ........ ................ .. .... .. ...................... .. .... .. .... ..........
C. ANTIEAU, FEDERAL CIVIL RIGHTS ACTS
§
37 (1971)
38
•• .• •• . •.•• 26
Babcock & Bosselman, Suburban Zoning and the
Apartment Boom , 111 u. PA. L. REV . 1040
(1963)
......... . . . . . . . . . . . . . . .. . . . . . . . . . . . . . ... . .... .
36
W. BARRON & A. HOLTZOFF, FEDERAL PRACTICE AND
PROCEDURE § 1231 (Wright ed. 1958) •••••••••.•••..... 10
viii
Page
M. BROOKS, EXCLUSIONARY ZONING (1970)
Comment,
••••••••••••••••••••••• 39
Develo~ments
in the Law--Equal
82 HARV. L. REV. 1065
.......... .. .................... .. .......................................................... 30
Protect~on,
(1969)
D. HAGMAN, URBAN PLANNING AND LAND DEVELOPMENT CONTROL LAW S 248 (1971) ••••••••••••••••••••••• 25
Lloyd, A Developer Looks at Planned Unit
Development, 114 U. PA. L. REV. 3
(1965)
."....... ...... ...... .. .............. .... ........ .... ...................................... 36
6 J. MOORE, FEDERAL PRACTICE
1972)
~
56.05 (2d ed.
~
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . • . . • . . . . . .
7
NATIONAL COMM'N ON URBAN PROBLEMS, FRAGMENTATION IN LAND-USE PLANNING AND
CONTROL (1969)
............................................................................
Notes of Advisory Committee on Rules, 28
U.S.C.A. following Rule 56 (1971)
.•••• • ••••••••••• • •
39
7
Sager, Tight Little Islands: Exclusionary
Zon~ng, E ual Protection, and the
Ind~gent, 21 STAN. L. REV. 767
1969) ...••••..•••.•• 19
U.S . BUREAU OF LABOR STATISTICS, DEP'T OF
LABOR , MONTHLY LABOR REVIEW, THE
DECENTRALIZATION OF JOBS (1967) .••..••• •• • • • • • • • •.• • 38
R. VERNON, THE MYTH AND REALITY OF OUR URBAN
PROBLEMS
(1962)
.... ........ .. .... ........................................................ 38
Water Use Committee Report, Trends in Water
Use, 65 J. AM. WATERWORKS ASS'N 285 (1973)
•• •• •• 36 , 37
Williams, Planning Law and Democratic Living ,
20 LAW AND CONTEMPORARY PROBLEMS 317
(1955)
•.•.•.••
.t • • • • • •
••••••••••• ;
•• •
••••••••••••••••
26
10 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND
PROCEDURE §
2712
(1973)
ix
.. ........ .... .. .. ........ .. .......... .......... ........ ..
7
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1973
No. 0001
INCORPORATED VILLAGE OF BUCOLIA.
Petitioner
v.
AMALGAMATED OFFICE WORKERS UNION ,
Respondent
On Writ of Certiorari to the
Court of Appeals for the Twelfth Circuit
BRIEF FOR RESPONDENT
OPINIONS BELOW
The opinions of the United States District Court for the
District of New Eden and the united States Court of Appeals for
the Twelfth Circuit, as yet unreported, are set forth in the
Record at pages 1-6 and 7-8 respectively.
JURISDICTION
Statement of jurisdiction is omitted pursuant to Rule
IV(B), 1973 Rules of the National Moot Court Competition.
2
QUESTIONS PRESENTED
1.
Whether summary judgment is proper when an asserted compelling
interest is "balanced" against an infringement of fourteenth amendment rights without a determination of material facts regarding the nature and degree of the
discrimination involved?
2.
Whether summary judgment should be sustained when discrimination'is assumed ; and the alleged compelling interest is
supported solely by projections and opinion rather than
by ascertainable fac t s?
3.
Whether an opinion of future environmental harm is, as a matter of law, sufficient to constitute compelling interest
for discriminatory legislation?
4.
Whether, in the face of an existing demand for low-priced
housing, the total exclusion of multiple-family dwellings
from a city and the surrounding vicinity is, as a matter
of l aw , a l egitimate exercise of municipal zoning
aut hority?
5.
Whethe r issues affecting national housing pat t erns and the
power of municipalities to exclude, poor and minority persons by zoning should be determined without the benefit
of a Record fully developed at trial?
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
Relevant provisions of the United States Constitution,
the Federal Rules of Civil Procedure , the Civil Rights Acts of
1866 and 1871 , and the Fair Housing Act of 1968 are included in
the appendices .
Complete reproduction here is omitted pursuant
to Rule 40(3), 1970 Revi sed Rules of the Supreme Court .
3
STATEMENT
The Respondent, Amalgamated Office Workers Union, seeks
an injunction to prevent enforcement of an ordinance enacted by
the Petitioner, the Incorporated Village of Bucolia.
The basis
for relief is that the ordinance violates rights guaranteed by the
United States Constitution, the Civil Rights Acts of 1866 and
1871, and the Fair Housing Act of 1968 (R. 1).
Bucolia, the wealthiest community in New Eden, is located
on the shore of one of several large lakes in the area (R. 2).
The residents live in single-family dwellings on four acre lots
(R. 3).
The only exception to this zoning scheme is a small busi-
ness district (R. 3).
The population of Bucolia contains approx-
imately two percent minority persons (R. 2).
Bucolia has the power to grant access to its water and
sewer systems to non-residents (R. 3).
vice outside its boundaries:
The City has granted ser-
a sanatorium for alcoholics, a high-
income residential subdivision, and Colossal Ecstatic International, Ltd., a large corporation (R. 3).
The City has made a
substantial profit on the contract it negotiated with Colossal,
who is the largest single user of the systems (R. 3).
Colossal's relocation adjacent to Bucolia has created
pressure for low-cost housing (R. 4).
Many of the executives live
in Bucolia , but the Workers, predominantly black and Spanish speaking persons, are unable to find housing they can afford (R. 3).
Since low-cost housing is non-existent in Bucolia, the Union
obtained a tract of land outside the City to construct a multifamily housing unit (R. 2,4).
The Union's application for access
to the City's water and sewer systems was denied in an emergency
4
session (R. 4).
The Petitioner then declared a moratorium on per-
mits to all multiple-dwellings, and subsequently commissioned an
expert to study the systems (R. 4).
The expert recommended that
development be halted to avoid exhaustion of underground water
and the danger o f pollution (R. 5).
The district court granted the Petitioner's motion for
summary judgment.
The court assumed, without deciding, that there
was discrimination, and held that the environmental concern was a
compelling interest (R. 6).
The circuit court reversed this rul-
ing on appeal and held that there were genuine issues of fact
concerning the environmental impact (R.8).
This Court granted
certiorari to consider all questions raised by the Record (R. 9).
SUMMARY OF ARGUMENT
The granting of summary judgment was erroneous because
the Petitioner failed to discharge the burden of demonstrating the
absence of genuine issues of material fact.
Summary judgment is
appropriate only where the truth is "quite clear."
case is not a clear case for relief.
The present
When the inferences are
drawn against the Petitioner's motion, material questions of fact
are revealed.
Additionally, summary judgment is particularly
inappropriate in this case since the moratorium raises questions
of motive and intent, and is supported only by expert opinion.
The resolution of the issues in this case will have far reaching
impact upon the zoning policies adopted throughout the country.
Issues of such public importance should not be resolved on the
"bare bones" of affidavits and other documentary evidence.
Full
exploration of the facts under the watchful eye of the fact finder
is both necessary and desirable.
5
The Petitioner has likewise not shown an entitlement to
summary judgment as a matter of law.
The moratorium denies equal
protection by drawing two constitutionally-suspect classifications
of race and wealth to deprive the Workers of both the civil right
to housing and the constitutional right to enter an area and abide
therein.
A fear of future environmental harms fails, as a matter
of law, to constitute a compelling interest for discriminatory
legislation.
Available case law indicates that concern for the
environment is a viable consideration for land-use planning; but
such concern does not justify discriminatory action by government.
Because the City's only defense for the moratorium does not constitute a compelling interest, the Petitioner was not entitled to
summary judgment as a matter of law.
Summary judgment should be denied . because the moratorium
is an arbitrary exercise of zoning authority which bears no substantial relation to the general welfare.
The Union was therefore
denied due process in the use of its property.
The City has con-
tinued its established policy of the total exclusion of multifamily dwellings from the vicinity of Bucolia.
The availability
of multiple-housing would have social utility to Bucolia by balancing the inevitability of future development with the possibility
of potential environmental harm.
Multiple-housing is the most
efficient means of conserving water and controlling sewage.
The
City's action is also harmful to Carbonville, to Colossal, and to
the surrounding region.
Courts are not reluctant to declare such
blanket prohibitions of beneficial land-use as invalid exercises
of zoning authority.
The Petitioner was therefore not entitled to
summary judgment as a matter of law.
6
ARGUMENT AND AUTHORITIES
I.
THE PETITIONER . WAS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE
GENUINE ISSUES OF MATERIAL FACT ARE YET TO BE RESOLVED.
Two interests of national importance are crucial to the
determination of this cause:
an interest in securing a healthy
environment for all citizens, and an interest in obtaining decent
housing for minority and low-income persons.
The Workers are
asserting their right to secure housing within a portion of Nirvana County near their employment.
The Petitioner , on the other
hand, is claiming that the possibility of future environmental
problems justifies the selective determination of who is to receive the benefits of municipal facilities.
The district court
did not consider whether such a selective determination resulted
in a discriminatory allocation of the City ,' s services.
Rather,
the court granted summary judgment for the Petitioner , stating:
"Even assuming, for purposes of argument, that the ordinance is
discriminatory in its effect, we feel that the environmental evidence submitted by Bucolia meets the 'compelling interest' test"
(R. 5).
To find the existence of a compelling interest necessi-
tates a balancing of the degree of discrimination with the environmental impact of water and sewer use.
· The "balancing" performed
by the district court was distorted since material questions of
fact regarding both the extent of discrimination and the degree of
environmental impact remained unresolved.
judgment was therefore erroneous.
The granting of summary
See FED. R. CIV. P. 56(c).
A summary disposition of the case at bar does not promote
the purposes of rule 56.
Summary judgment is proper only where
"there is no genuine issue as to any material fact and • • • the
7
moving party is entitled to a judgment as a matter of law." Id.
(emphasis added).
The rule had its origin in England and was
des i g ned to prevent frivilous and fictitious defenses to actions
brought under the Bills of Exchange Act of 1855.
FEDERAL PRACTICE " 56.05 at 2071 (2d ed. 1972).
6 J. MOORE,
At present, the
purpose of the rule is to eliminate unnecessary trials .
Notes of
Advisory Committee on Rules, 28 U.S . C.A. following Rule 56 (1971).
While this purpose of summary judgment is laudable, the
rule was never meant to deprive a party of a trial where needed.
Poller v. Columbia Broadcasting System, 368 U.S. 464 (1962) .
Where there are genuine issues of material fact , a trial is indispensible to the fair administration of justice .
~,
115 F.2d 305 (5th Cir. 1940).
Whitaker v . Cole-
There is no "magic formula"
for determining when a material question of fact exists, and e ach
case depends upon the facts peculiar to it .
Life Ins . Co., 216 F.2d 479 (7th Cir . 1954).
Repsold v . Ne w York
Because the remedy
is drastic, rule 56 should be used with due regard for its purposes
and should be invoked cautiously to insure that no party will be
improperly deprived of a trial when disputed factua.l matter s
exist.
10 C . WRIGHT & A. MILLER , FEDERAL PRACTICE AND PROCEDURE
l' 2712 at 389 (1973).
The district court erred in granting summary judgment in
the present case because issues of material fact were unresolved.
Petitioner's notion to the contrary should be rejected.
Th e pur-
pose of rule 56 does not call for summary disposal of this case
since the Workers ' claim for relief was neither frivilous nor
imaginary.
Rather, the district court's action deprived the Res-
pondent of the right to a needed trial on the issues of the degree
8
and extent of discrimination, and the degree and extent of the
environmental impact of water and sewer usage.
A.
The Petitioner has the burden of demonstrating the
absence of genuine iss·u esof material fact.
The party seeking summary judgment has the burden of
demonstrating that there is no genuine issue of material fact.
National Screen Servo Corp. v. Poster Exch., Inc., 305 F.2d 647
(5th Cir. 1962).
This burden must be discharged even though the
opposing party would have the burden of proof on that issue at
trial.
Sheridan v. Garrison, 415 F.2d 699 (5th Cir. 1969), cert.
denied, 396 U.S. 1040 (1970): Manufacturers Trust CO. V. Rogers,
181 F. Supp. 116 (S.D.N.Y. 1960).
The quality and quantity of
the proof offered must be such that the truth is made to appear
"quite clear . "
Poller, supra, at 468.
The Petitioner in this case failed to meet the burden of
demonstrating that the truth was "quite clear."
The City took the
position that the moratorium was nondiscriminatory in intent, and
that the water and sewer systems could not accomodate additional
use without detrimental environmental effects (R. 5).
These con-
tentions fly in the face of the undisputed facts in the Record.
The intent of the moratorium can be inferred from the pattern of
Bucolia's development.
The City permits only single-family .dwell-
ings which must be constructed on lots of at least four acres
(R. 3).
Less than one percent of the homes in Bucolia are owned
and occupied by members of minority groups.
Their holdings
amount to less than one-tenth of one percent of the residentiallyzoned land (R. 2).
A clear demand for medium and low-price hous-
ing exists due to the influx of the white and blue-collar employees
9
of Colossal (R. 3).
There are no multi-family dwellings in
Bucolia , and the Workers are unable to afford the available housing in or near the City (R. 2,3).
The Petitioner's pattern of
development, therefore, suggests not only that the effect, but
also the underlying intent of the morat orium is to discriminate
in favor of the wealthy .
The Petitioner likewise failed to demonstrate that the
truth was "quite clear" on the issue of environmental impact.
The City ' s position is that adverse environmental effects constitute a compelling interest which justifies discrimination .
only support
The
for this contention is the report of the Petitioner ' s
expert which warned of t he "danger of pollution of Majestic Lake
and Bucolia ' s beaches," and exhaustion of the underground water
supply (R . 5).
Yet , the City is the wealthiest community in the
state of New .Eden and is located on a five-mile stretch of Majestic Lake (R. 2).
The opinion evidence concerning future harm is,
at best , less than a compelling interestl especially when tested
in light of the City's undisputed economic power and the availability of water .
B.
Issues of material fact concerning the pattern of
discrimination are unresolved.
1.
Inferences of fac t must be drawn against the
moving party .
Inferences of fac t are drawn against the party moving for
summary j udgment, and are v i ewed in a light most favorable to the
existence of triable issues.
654 (1962 ).
United States v. Diebold, 369 U.S.
The rationale for this rule evolves from the princi-
pIe that the finder of fact is to draw inferences from the
10
evidence after observing the demeanor of witnesses and hearing
them on cross-examination .
Primarily, the court is determining
whether there are issues for the jury to hear rather than
ing summary judgment as a substitute for trial.
A. HOLTZOFF, FEDERAL PRACTICE & PROCEDURE
ed. 1958).
§
utiliz~
W. BARRON &
1231 at 100 (Wright
Because the granting of summary judgment infringes
upon the function of the finder of fact, courts are reluctant to
employ rule 56 when reasonable inferences against the motion
exist.
Id. The courts therefore preserve the role of the jury
by construing all reasonable inferences in a manner to favor the
existence of triable issues.
~.,
James v. Atchison, Topeka &
Santa Fe Ry., 464 F.2d 173 (10th Cir . 1972) .
The rule that summary judgment is inappropriate when reasonable inferences exist against the motion does not mean the
parties must disagree on evidentiary matters.
To the contrary,
the rule has equal vitality when there is a dispute only as to
the conclusions to be drawn from uncontroverted facts .
~.,
American Fidelity & Cas. Co. v. London & Edinburgh Ins. Co., 354
F.2d 214 (4th Cir. 1965).
This Court reversed a granting of
summary judgment in a case where the parties had conflicting
interpretations of the conclusions to be drawn from undisputed
evidence.
Elgin, Joliet & E. Ry. v. Burley, 325 U.s. 711 (1945).
The basis for the decision was that "the parties are at odds upon
the inferences to be drawn from the' facts and their legal effects
rather than upon the facts themselves." Id. at 743.
The policy
of indulging the non-moving party does not penalize the moving
party since , at trial, credence is given to the inference most
reasonably drawn from the facts.
United States v. Bob Lawrence
11
Realty Inc., 327 F. Supp . 487 (N.D. Ga •. 1971).
Additionally, a
conclusion reached by drawing adverse inferences on a motion for
summary judgment has no res judicata effect on remand.
Smith v.
Pittsburgh Gage & Supply Co., 464 F.2d 870 (3d Cir. 1972).
The Workers are entitled to the benefit of all favorable
inferences from the facts in the Record.
Because these inferences
demonstrate the existence of issues of material fact, the Petitioner failed to discharge its burden and the granting of summary
judgment was error .
2.
A discriminatory purpose can be inferred from the
facts in the Record.
The Record in the case at bar reflects that the population
of Bucolia includes barely two percent black and Spanish speaking
persons (R. 2).
Of the three-hundred ninety-three minority per-
sons living in Bucolia , eighty-six are live-in domestics (R. 2) •
. During the last decade, the number of minority individuals residing in the City has declined (R. 2) .
The relocation of Colossal
near Bucolia has created pressure for moderate and low-priced
housing (R. 3).
A number of Colossal's executives live in Bucolia,
but the middle and low-income employees are unable to afford housing in or near the City (R. 3,4).
The City's response to the
increased pressure for low-priced housing was the continuation of
a zoning scheme which requires single-family dwellings with a four
acre minimum lot size (R . 3,4).
When confronted with the Respon-
dent ' s application for water and sewer services to a multiplehousing unit outside Bucolia, the City met in emergency session
and declared a moratorium on permits (R. 4) .
Reasonable men could i nfer from these facts that the
12
moratorium effectively accomplished the City's intention to continue a policy of systematic discrimination on the basis of race
and wealth.
The Second Circuit reached a similar conclusion on
similar facts in Kennedy Park Homes Ass'n v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S. 1010 (197i).
The evidence in Kennedy Park established that nearly ninety-nine
percent of nonwhite citizens lived in the First Ward, with barely
one percent located in all other sections of town.
Pressure
existed to allow minority persons to move to other sections.
The
response to this pressure was a moratorium on new residential
subdivisions.
The city later rescinded this ordinance, but then
refused to grant access to sewer lines.
The court concluded that
the effect of the city's action was to discriminate, and that the
action was discriminatory in intent.
Id. at 114.
A comparison of the facts of the present case with those
of Kennedy Park demonstrates that a reasonable man could infer
that the purpose of the present moratorium was to continue the
City's established pattern of discrimination.
Since all reason-
able inferences must be drawn adverse to the Petitioner, a genuine
issue of material fact exists .
Furthermore, summary judgment was
particularly inappropriate since this issue of material fact involved questions of Bucolia's motive and intent.
3.
Summary judgment is inappropriate when material
issues of fact involve questions of motive, intent,
and purpose.
.
Summary judgment was especially inappropriate since
material issues were raised regarding the purpose of the moratorium.
This Court held in Poller, supra, that summary judgment
13
should be used sparingly, if at all, when motive and intent play
leading roles in the litigation of issues, and the proof is
largely in the hands of the opposing party.
Questions of motive
and intent are traditionally reserved for the finder of fact,
s i nce "trial by affidavit is no substitute for trial by jury
which so long has been the hallmark of 'even handed' justice . "
Id. at 473.
This rationale has not been limited to the anti-trust
fact situation of Poller.
One example of the extension of the
Poller holding is found in actions brought under § 10b-5 of the
Securities Exchange Act of 1934.
Knowledge that a statement is
false is a sufficient showing of fraudulent intent.
Astor v.
Texas Gulf Sulphur Co., 306 F. Supp. 1333 (S.D.N . Y. 1969).
Yet,
summary disposition on a cold record is a poor substitute for a
finding based upon observation and appraisal of witnesses.
Crane
Co. v. American Standard Inc., 326 F. Supp. 766 (S.D.N.Y. 1971).
The opportunity to cross-examine hostile witnesses and carefully
marshal circumstantial evidence is considered paramount to the
advantages gained by summary judgment.
Ferguson v. Omnimedia,
Inc., 469 F.2d 194, 198 (1st Cir. 1972).
The Poller holding , as expanded by the aforementioned
cases, has been specifically applied to fact situations similar
to the case at bar .
~.,
Sisters of Providence of St. Mary of
the Woods v. City of Evanston, 335 F. Supp. 396 (N.D. Ill. 1971)
[hereinafter cited as Sistersl.
In that case, the plaintiffs
alleged violations of equal protection and due process based upon
the city's refusal to rezone their property.
The court refused
to summarily dismiss because the challenge involved issues of
14
motive and intent.
Allegations of discriminatory intent should
receive a full factual development at trial because such motives,
rather than being openly expressed, are usually subtly disguised.
Cases of this nature have a habit of "suddenly sprouting strange
fruit when the proofs are in."
Id. at 400.
The reaso.ning of Sisters is similar to that of Gautreaux
v. Chicago Housing Authority, 265 F. Supp. 582 (N.D. Ill. 1967).
There, the court declined to grant summary judgment because the
issues raised by the allegation of discrimination in site selection for public housing involved motive, intent, and purpose.
Id. at 584.
Summary disposition was likewise rejected on a cause
of action based upon discrimination in the state employment office
in Johnson v. Louisiana State Employment Serv., 301 F. Supp . 675
(W.O. La. 1968).
The court observed that .the important element
of demeanor of the witnesses might well be the most valuable
impeachment tool available to the plaintiff.
Id. at 678.
The Respondent does not claim that any allegation of
motive and intent is sufficient to defeat a motion under rule 56.
Rather, summary disposition is inappropriate only when these
allegations are material to the determination of the cause.
Hence, the holding of this Court in United States v. United States
Gypsum Co., 340 U.S. 76 (1950) is inapplicable to the case at bar.
Summary judgment was correct in Gypsum because the good intentions
of the defendants did not constitute a defense to the violation
of an anti-trust law.
Motive was therefore immaterial.
In the
instant case, however, the intent goes to the very heart of the
purpose of the moratorium.
This case likewise does not conflict with those decisions
15
which have refused to scrutinize the subjective motives of the
legislators.
~.,
(7th Cir. 1961).
Progress Dev. Corp. v. Mitchell, 286 F.2d 222
The Respondent has not relied upon a determina-
tion of subjective intent; but has contended that the factual
context of the City's pattern of development demonstrates the
discriminatory int.e nt of the moratorium.
Consideration of the
purpose of legislation is appropriate when based on the terms of
the statute, its operation, and the legal and factual context in
which it was passed.
(1967);
~.,
Okla . 1969).
See Reitman v. Mulkey, 387 u.S. 369, 374
Dailey v. City of Lawton, 296 F. Supp. 266 (W.O.
The court in Dailey analyzed the objective manifes-
tations of the city's overall zoning policy and concluded the
motive behind the challenged ordinance was discriminatory.
at 269.
This finding was affirmed on appeal:
Id.
"If proof of a
civil right violation depends on an open statement by an official
of an intent to discriminate, the fourteenth amendment offers
little solace to those se,king protection."
Dailey v. City of
Lawton, 425 F.2d 1037, 1039 (10th Cir. 1970).
A full development of the factual issues of motive and
intent is necessary in the case at bar, because the law prevents
"sophisticated as well as simple-minded modes of discrimination."
Lane v. Wilson, 307 u.S . 268, 275 (1939).
The Petitioner has
alleged a nondiscriminatory intent (R. 5,6).
Yet the City's
entire pattern of development reflects that low-income and minority persons have been effectively prohibited from residing in
Bucolia in spite of the pressure by such persons to so locate.
· Because the subtleties of this discriminatory scheme can be
exposed only by a full factual development of the surrounding
16
circumstances, the Workers should have the opportunity to proceed
to trial on the merits .
C.
Issues of material fact concerning the environmental
impact are unresolved.
1.
Summary judgment is inappropriate when the moving
party relies solely upon the opinion of an expert.
The City ' s allegation of adverse environmental effects is
based solely on the report of V.R. Willing & Associates, Inc.
(R. 5,6).
This report did not reflect a current situation which
could be verified by reference to presently existing facts.
To
the contrary, the premise of the report was Willing's projections
of potential obligations (R. 5).
The conclusion Willing drew
from his own projections was the danger of pollution (R. 5).
This Court has clearly expressed the weight to be given
such expert opinion on motions for summary judgment .
The language
of Justice Cardozo was quoted with approval in Sartor v. Arkansas
Natural Gas Corp., 321 U' .S, 620 (1944):
If they [expert opinions] have any probative effect, it
is that of the expressions of opinion by men familiar with
the gas business and its opportunities for profit. But
plainly opinions thus offered, even if entitled to some
weight, have no such ·conclusive force that there is error
of law in refusing to follow them. -This is true of opinion
evidence generally, whether addressed to a jury, or to a
judge, or to a statutory board.
Dayton Power & Light Co.
v. Public Util. Comm'n, 292 U.S. 290, 299 (1934).
The moving party in Sartor had offered expert opinion on the market price of gas at the wellhead to support the motion for summary
judgment.
The opposing party did not avail himself of either of
the options specified in FED. R. CIV. P . 56(e) or (f).
Nonethe-
less , this Court reversed the granting of summary judgment under
the rationale that the jury, endowed with "their natural
17
intelligence and their practical knowledge of men and the ways of
men" can best judge the weight to be accorded the testimony.
Sartor, supra, at 628.
Since the jury is entitled to disbelieve
an expert, summary judgment cannot rest solely upon such opinion.
The Petitioner, by relying solely upon the Willing report,
failed to set forth the predicate necessary to receive a summary
judgment.
Rule 56(e) requires the moving party to establish
"facts" in support of the motion.
The weight to be given expert
testimony is to be determined by the finder of fact.
~.,
Dulansky v. Iowa-Illinois Gas & Elec. Co., 191 F.2d 881 (8th Cir.
1951).
Hence, such opinion evidence fails to meet the require-
ment of "fact" as set forth in rule 56(e).
Elliott v. Massachu-
setts Mut. Life Ins. Co., 388 F.2d 362 (5th Cir. 1968).
In the
present case, the opinion of the City's expert was not conclusive
on the issue of potential harm to the environment.
The expert
was not dealing with factual matters susceptible of verification
by reference to ascertainable data.
A jury, therefore, would be
entitled to reject the projections of the Willing report.
The failure of the Petitioner to establish a factual predicate for summary judgment relieved the Respondent of the duty of
coming forth with "specific facts showing there is a genuine
issue for trial."
FED. R. CIV. P. 56(e).
The burden never passed
to the Respondent because the Petitioner initially failed to support the motion.
Hence, the question is simply whether the City
is entitled to summary judgment solely on the basis of expert
opinion which has not been subjected to the scrutiny of a jury's
appraisal of credibility.
Both case law and the reasonable infer-
ences from the Record before this Court answer this question in
18
the negative.
The City's exclusive reliance on expert opinion distinguishes this case from Lundeen V. Cordner, 356 F.2d 169 (8th Cir.
1966).
The court in Lundeen held that the party opposing a motion
for summary judgment must set forth facts i n order to place the
credibility of an ordinary affiant at issue.
Note, however, that
the ordinary witness is testifying as to facts which are within
his knowledge, as required by rule 56(e).
In sharp contrast, the
expert in the case at bar was not testifying as to facts, but was
rendering an opinion as to the future impact of additional use of
the water and sewer systems.
Also, Willing is an interested wit-
ness, as he was commissioned by the City to undertake the study
(R. 4).
The ordinary witness, on the other hand, receives no
o:enumeration for his testimony.
2.
The surrounding circumstances indicate that the
credibility of the expert should be tested at trial.
Even assuming the Respondent had the burden of showing
facts in order to raise the issue of credibility, the present
expert opinion should be tested at trial .
The court in Dulansky,
supra, found the surrounding circumstances. to be a valuable guide
in determining whether credibility was in issue.
The circumstances of the present case cast doubt upon the
credibility of Willing's opinion.
The policy of excluding multi-
family dwellings is of long standing (R. 3).
The policy with
regard to other types of uses of the water and sewer systems is
in sharp contrast.
Bucolia extended service to Silver Knoll in
1963; to an adjacent high-income residential area in 1966; and to
Colossal in 1970.
Furthermore, the City's population has
19
increased twenty-nine percent over the last decade (R. 2,3).
In spite of this pattern of development, the Petitioner seeks to
justify its denial of service to the Workers on the basis of a
report obtained subsequent to the ordinance establishing singlefamily dwellings; subsequent to the other extensions of service;
and subsequent to .the moratorium.
An opinion obtained by the
Petitioner which recommends the continuation of discriminatory
policies must be deemed to raise the issue of credibility.
D.
Summary judgment was in·a ppropriate because the questions
involved are of ·f ar'-flun·g pUblic· irnp·o rtance.
The Record before this Court is inadequate for the deter-
mination of issues of vast public importance .
The practice of
utilizing zoning ordinances to fence out persons of low-income
and minority groups has, within the past few years, become an
issue of national concern.
See,
~.,
Sager , Tight Little Islands:
Exclusionary Zoning, Equal Protection, . and the Indigent, 21 STAN.
L. REV. 767 (1969).
Final resolution of the conflict between a
municipality's responsibility to zone for the general welfare and
the right of all persons to obtain decent housing requires a balancing of many relevant factors.
The decision of this Court will
establish both precedent and guidelines for subsequent litigation
on these issues.
The importance of this case, therefore, compels
a full development of the Record .
In other factual contexts, this Court has been unwilling
to decide issues of public importance without the benefit of full
exploration at trial .
Issues concerning the conditions placed
upon a bank operating in the federal reserve system were of such
public moment to necessitate denial of summary judgment in
20
Eccles v. Peoples Bank, 333
u.s.
426 (1948).
"Caution is appro-
priate against the subtle tendency to decide public issues free
from the safeguards of critical scrutiny of the facts • • • . "
Id. at 434.
The affidavits and interrogatories supporting the
motion in Eccles were simply inadequate to determine the issues.
Likewise, the importance of issues involved in anti-trust violations resulted in this Court's denying summary judgment in White
Motor Co. v. United States, 372 U.S. 253 (1963).
" • • • [w]e know
too little of the actual impact • • • to reach a conclusion on
the bare bones of the documentary evidence before us."
261.
Id. at
The refusal to determine issues of public importance on the
"bare bones" of an inadequate record has occurred in many other
factual contexts:
(9th Cir. 1970)
~.,
United States v. Perry, 431 F.2d 1020
(involving the Anti-Kickback Act); Kennedy v.
Silas Mason Co., 334 U.S. 249 (1948)
(involving the Fair Labor
Standards Act); Arenas v. United States, 322 U.S. 419 (1944)
(involving a patent of
re~ervation
F.2d 797 (6th Cir. 1957)
lands); Knapp v . Kinsey, 249
(involving the construction of a trust).
Individual constitutional and civil rights are of no less
stature in terms of public importance
examples.
tha~
the aforementioned
The violation of first amendment rights is not to be
determined upon a "scanty" record.
939 (5th Cir. 1970).
Sindermann' v. Perry, 430 F.2d
"Scanty" records are also insufficient in
cases involving the denial of equal protection.
In Heyward v.
Public Housing Administration, 238 F.2d 689 (5th Cir. 1956), the
plaintiffs challenged a policy of racial segregation in public
housing.
The court pointed to the public significance of the
issues and refused to grant summary judgment:
21
Here , we have an extremely important question, undoubtedly
affecting a large percentage of the low-cost housing deve lopment programs, and ultimately affecting the living standards of a great number of persons, white and colored, who
are in urgent need of decent , safe a nd sanitary dwellings.
No conclusion in such a case should pr ud ently be rested on
a [sic] indefinite factual situation • • "
rd. at 698 .
The present factual situation is at best indefinite .
The
Workers have alleged the discriminatory effects of the moratorium.
The concept of discrimination inherently involves questions of
'e xtent and degree,
Resolution of this genre of cases depends
upon the delicate balancing of infringed rights against government police power.
Sisters at 399 .
In order to adequately bal-
ance the interests of the Workers against those asserted by the
City, a finding of the extent and degree of discrimination was
necessary.
The district court, however , assumed discrimination
without determining t he degree.
The factual basis on which the district court granted the
summary judgment was inadequately developed.
The court found that
the environmental report sufficiently demonstrated a compelling
interest.
The report, however , raised more questions than it
answered .
Despite the availability of water from Majestic Lake,
the report was premised only on use of the underground water
resources
(R. 5).
In the face of clear economic ability , the
report recommended a halt of further development (R. 5).
The
report did not analyze existing environmental dangers which could
b e verified by factual data ; but rather advanced an opinion of a
future problem based on projected needs.
This projection took
into account such imponderables as the "potential future obligations to Colossal"
(R . 5),
The face of the report , as it appears
in the Record, inadequately reflects the extent and nature of the
22
interest which Bucolia seeks to protect.
The report did not inti-
mate what, if any, corrective actions should be taken by the City
to rectify the projected problems.
Nor did the report, as re-
flected in the Record, demonstrate whether the potential "danger
of pollution" was imminent.
The distri.c t court erroneously attempted to balance two
' competing interests without a detailed factual examination of the
extent and nature of each of the interests.
This failure to give
proper judicial consideration to issues of such national importance gives special meaning to the warning of Brunswick Corp. v.
Vineberg, 370 F.2d 605, 612 (5th Cir. 1967):
"Summary judgment
is a lethal weapon, and courts must be mindful of its aim and targets and beware of overkill in its use."
II.
THE PETITIONER WAS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE
CONCERN FOR FUTURE ENVIRONMENTAL PROBLEMS FAILS, AS A MATTER
OF LAW, TO CONSTITUTE A COMPELLING INTEREST FOR DISCRIMINATORY LEGISLATION.
FED. R. CIV. P. 56(c) specifies that summary judgment
shall be rendered upon a showing "that there is no genuine issue
as to any material fact and that the moving party is entitled to
jUdgment as a matter of law"
(emphasis added).
Since the Record
contains genuine issues of material fact ', the granting of summary
judgment was erroneous.
Assuming, however, the absence of issues
of fact, the Petitioner failed to show an entitlement to summary
judgment "as a matter of law."
Municipal actions are unquestionably within the equal
protection concept of state action.
ville, 373 U.S. 244 (1963).
Peterson v. City of Green-
The Respondent's allegations of the
moratorium's discriminatory effects and denial of equal protection
23
are sufficient to establish a claim for relief under FED. R. CIV.
P. 8(a).
The City, on the other hand, has not shown that a con-
cern for future environmental probl e ms is, as a matter of law, a
compelling interest for discriminatory legislation.
A.
'l'he effect of the moratoriUm as applied is to discriminate
against the Workers.
The seeming-neutrality and resulting discrimination of the
moratorium is analogous to a state action condemned by this Court
in Gomillion v. Lightfoot, 364 u.s. 339 (1960).
There, the issue
concerned the constitutionality of a change in municipal bound aries.
Although the action was neutral on its face, the result
was to deny virtually all black residents in the area the right
to vote in local elections.
In the present case, the City's de-
nial of access to water service applies solely to those desiring
to live in multi-family dwellings .
The effect of the moratorium
is to create and to discriminate against two constitutionallysuspect classifications.
1.
The moratorium renders the exercise of fundamental
and constitutional rights dependent upon the classification of wealth.
The low and middle-income
\~orkers
- lack the financial capa-
bility to purchase the required four acre lot or to construct the
required single-family dwelling (R . 3) .
Thus, the net effect of
the City's zoning scheme is to predicate access to Bucolia and the
surrounding vicinity on the basis of wealth.
This economic dis-
crimination deprives the Workers of several constitutional and
civil rights .
The moratorium on water permits is an economic
discrimination which deprives the Workers of the constitutional
right to enter an area and abide therein.
This Court granted
24
constitutional sanction to the privilege to enter and abide from
the viewpoint of interstate travel in Edwards v. California, 314
U.S. 160 (1941).
Edwards held that a state may not prohibit indi-
gents from settling within its borders.
The subsequent case of
united States v. Guest, 383 U.S. 745 (1966) specifically reaffirmed
that the privilege, of interstate travel was a constitutional
right.
This right was incorporated into the equal protection
analysis in Shapiro v. Thompson, 394 u.S. 618 (1969).
Shapiro
held that interstate travel includes the constitutional right to
move from state to state for the purpose of establishing a residence.
The " right to travel intrastate is as basic" as the right
to travel interstate.
Bell v. Maryland, 378 U.S. 226, 255 (1964)
(Douglas, J., concurring)
(emphasis in original).
A city, as an
agent of the state, cannot fence out potential residents on the
ground of economic discrimination.
See,
~.,
Shapiro at 631;
Therefore, a city's denial of access to housing for new residents
on the basis of wealth violates the constitutional right to enter
and abide.
~.,
King v. New Rochelle Municipal Housing Authority,
442 F.2d 646 (2d Cir. 1971), cert. denied, 404 u.S. 863 (1971).
An understanding of what is included within the concept of
the right to enter and abide is best achieved by a consideration
of what that right does not include.
The Workers do not advocate
a constitutional right to housing which they cannot afford.
Hence, Lindsey v. Normet, 405 u.S. 56 (1972)
(eviction for non-
payment of rent does not violate equal protection) is distinguishable on the facts.
Likewise, the Workers do not claim a consti-
tutional right to low-income housing in whatever area of Bucolia
they should choose to live.
The Workers admit the desirability of
25
the City's right to exclude multiple-housing from certain sections.
The Petitioner , however, has not only excluded multiple-housing
from all of Bucolia; but has likewise precluded any such development within the adjacent area.
Because this total exclusion pre-
vents the Workers from residing anywhere within the general
vicinity of Bucolia, it violates their constitutional right to
enter an area and abide therein.
Newport,
S"e e Cole v. Housing Authority of
435 F.2d 807 (1st Cir. 1970).
The economic discrimination resulting from the moratorium
also denies the Workers of the civil right to equal opportunity
for hous i ng.
See 42 U. S.C . §§ 1981,1982 , 3601 (Appendix A) .
This right is fundamental within the framework of national policy .
42 U.S.C. § 3601.
Government techniques which subvert this na-
tional goal "cannot be tolerated. "
D. HAGMAN, URBAN PLANNING AND
LAND DEVELOPMENT CONTROL LAW § 248 (1971) .
The City's action
established a cause of action independent of and in addition to
the violation for equal protection.
cause of action is found in 42 U.S.C .
Statutory authority for this
§
1983 (Appendix A) :
Every person who , under color of any • . • ordinance.
subjects • . • any citizen of the United States . • . to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in • • • [aJ suit in equity • •
.,
The facts of the present case demonstrate the existence
of a valid cause of action under 42 U.S.C. § 1983.
The City ,
under color of law, has deprived the Workers of both constitutional and civil rights.
injunctive relief.
See ,
The Workers are therefore entitled to
~ .,
Sisters .
The holding of Monroe v.
Pape, 365 U.S. 167 (1961) that a municipality is not liable under
this section for money damages does not apply to the injunctive
26
relief sought by the Workers.
See,
~.,
Hawkins v. Town of Shaw,
437 F.2d 1286 (5th Cir. 1971), aff'd en banc, 461 F.2d 1171 (1972);
see generally C. ANTIEAU, FEDERAL CIVIL RIGHTS ACTS
37 (1971).
§
Assuming, therefore, that the district court correctly
held that the moratorium did not violate equal protection, the
City was not entitled to summary judgment as a matter of law.
The
Workers established an independent cause of action for violation
of their civil rights to fair housing.
See,
~.,
Dailey v. City
of Lawton, 425 F.2d 1037 (10th Cir. 1970).
2.
The moratorium results in di s crimination on the
basis of race.
The social and economic structure of the United States is
such that there is a substantial correlation between the classes
of " low-income" and "racial minorities."
Hence, "a successful
policy of economic segregation will automatically bring about a
very high degree of racial and ethnic segregation. "
Williams,
Planning Law and Democratic Living, 20 LAW AND CONTEMPORARY PROBLEMS 317, 330 (1955).
This correlation has, in some instances,
approached the realm of judicial notice.
The Ninth Circuit, for
example, has referred to "low income fami.lies, who usually--if
not always--are members of minority groups."
Southern Alameda
Spanish Speaking Organization v. City of Union City, 424 F.2d 291,
296 (9th Cir. 1970)
[hereinafter cited as SASSO).
The conclusion of racial discrimination is especially
appropriate in the present case since the Workers are of "predominantly black and Spanish speaking" minorities (R. 5)
added).
(emphasis
For the purpose of considering a motion to dismiss,
an allegation that a class of low and middle-income affects a
27
"substantial percentage" of minority groups is sufficient to move
the case into the realm of racial discrimination.
Sisters at 403.
In Hawkins, supra, the town had provided sewer service to ninetynine percent of the white residents, and to eighty percent of the
blacks.
The Fifth Circuit held this nineteen percent disparity
was a prima facie case of racial discrimination.
Thus, even
though the Workers as a class are not one-hundred percent minorities, the Respondent's uncontroverted proof of "predominance" is
sufficient to conclude racial discrimination.
moratorium is geared predominantly to race.
The impact of the
See,
~ . ,Hunter
v.
Erickson, 393 U.S. 385 (1969).
3.
The City's position that the moratorium is nondiscriminatory because it applies to all multiple-housing
units is incorrect as a matter of law.
The City .asserts nondiscrimination since the moratorium
applies to all multiple-housing units .
The underlying reasoning
is that all who desire an apartment are equally affected; regardless of whether they are rich, poor, black, or white.
The City
relies on James v. Valtierra, 402 U.S. 137 (1971i to support this
proposition.
There are, however, important distinctions between
James and the case at bar.
James did not involve a situation of
total exclusion of multiple-housing.
Rather, the basic issue was
the constitutionality of a state's power to determine public housing issues by referendum .
The most compelling distinction from
the present case was the element of the importance of decisionmaking through voting .
See Id . at 143 .
When the right to suf-
frage is at stake, constitutional issues totally different from
those of the instant case are injected.
See Sisters.
James
28
might support, by extension, the conclusion that claims of discrimination are insufficient to enjoin an election.
See,
~.,
Ranjel v. City of Lansing, 417 F.2d 321 (6th Cir. 1969), cert.
denied, 397 U.S. 980 (1970).
It should not, however, be construed
as supporting the assertion that equal application to rich and poor
alike renders the .moratorium free from discriminatory effects.
This Court has consistently rejected the notion that equal
application removes the element of discrimination .
The claim
that a statute preventing interracial marriages was not discriminatory since it applied to white and black equally was rejected
in Loving v. Virginia, 388 U.S. 1 (1967)
Florida , 379 U.S. 184 (1964).
1
accord, McLaughlin v.
The rationale for this Court's
refusal to accept the equal application argument is that "[allthough the law on its face treats Negro and white, Jew and gentile. in an identical manner, the reality is that the law's impact
falls on the minority."
Hunter, supra, at 391 .
Fourteenth amend-
ment rights are guaranteed to the individual rather than to a
class.
Shelly v. Kraemer, 334 U.S. 1 (1948).
Hence, even though
the moratorium theoretically applies to all apartment dwellers,
the effect is a denial of the rights of the individual Workers.
B.
The City failed to justify the moratorium as a legitimate government interest.
1.
The "compelling interest" test is the proper burden
for justification.
The "traditional" benchmark for evaluating a state's interest is whether the classifications drawn by the legislation bear
a rational relation to a constitutionally-permitted purpose.
McGowan v. Maryland, 366 U.S. 420, 426 (1961).
~.,
There are, however,
29
two situations in which the state is held to the more stringent
burden of showing a compelling interest for the legislation.
First, any state action which classifies according to race is
immediately sU5Ipect and bears a "very h eavy burdQ n of justification."
Loving, supra, at 9.
Second, government is prohibited,
absent a showing of compelling interest, from creating "disfavored" classifications to deprive one of a "fundamental right."
Douglas v. California, 372 U.S. 353 (1963).
Because both excep-
tions are specifically applicable to the present case, the City
must justify the moratorium in view of the compelling interest test.
Dictum in cases of this Court suggests that economic discrimination per se is so invidious as to activate the compelling
interest test.
Wealth is a factor which "would independently ren-
der a classification highly suspect and thereby demand a more
exacting judicial scrutiny."
McDonald v. Board of Election
Comm'r, 394 U.S. 802, 807 (1969).
At the very least, such lan-
guage indicates this Court's view that economic discrimination
represents a "disfavored" classification.
A showing of compelling
interest is therefore required when such discrimination results
in the denial of a constitutional right.
of Elections, 383 U.S. 663 (1966).
Harper v. Virginia Bd.
This ' Court held that any
classification which penalized the constitutional right to enter
a state and abide therein, "unless shown to be necessary to promote a compelling governmental interest, is unconstitutional."
Shapiro
nal).
v.
Thompson, 394 U.S. 618, 634
(1969)
(emphasis in origi-
Since the moratorium and zoning ordinances result in a
direct denial of the right to enter and abide, the City must show
a compelling interest.
See,
~. ,
Cole v. Housing Authority of
30
Newport, 435 F . 2d 807 (1st Cir. 1970).
The moratorium also results in racial discrimination and
thereby necessitates the compelling interest test.
The uncontro-
verted fact that the Workers were 'predominantly of minority groups
established a prima-facie case of racial discrimination.
The
City failed to remove the racial stigma of the moratorium by
alleging equal application to all apartment dwellers.
The Peti-
tioner therefore assumed the burden of showing compelling interest.
The decisions of this Court demonstrate the stringent burden of justification necessary to sustain discrimination based on
race.
The only case where this Court has ever held a racial
classification to be justifiable was Korematsu v. United States,
323 U.s. 214 (1944).
Korematsu approved the exclusion of Japan-
ese-Americans from certain parts of California during World War II.
The near impossibility of showing compelling interest has prompted
one commentator to doubt that anything "short of the exigencies
of war-time emergency" would justify a racial classification.
Comment, Developments in the Law--Equal protection, 82 HARV. L.
REV. 1065, 1090 (1969).
2.
The City failed, as a matter of law, to show a
compelling interest for the moratorium.
The City asserts compelling interest solely on the basis
of Willing's report of future environmental dangers.
This opin-
ion, which was based on a projection of potential obligations, is
illusory in that it is nothing but a particular statement of an
obvious generalization:
without improvement of the nation's
existing water and sewer systems, continued population growth
would eventually result in environmental dangers.
The City
31
cannot refuse to improve its systems and claim the inevitability
of environmental harm as a compelling interest to exclude the
poor and racial minorities.
constitutional question."
Such action presents a " substantial
See SASSO at 295.
A potential sewage problem is no justification to refuse
residential development.
Pa . 466,
Appeal of Kit-Mar Builders, Inc., 439
, 268 A.2d 765, 767 (1970).
The City must solve its
sewage problems and resulting environmental dangers without
infringing on the constitutional rights of the Workers.
See
Kennedy Park Homes Ass'n v. City of Lackawanna, 318 F. Supp. 669,
680 (W.O.N.Y. 1970), aff'd, 436 F.2d 108 (2d Cir. 1970), cert.
denied, 401 U. S. 1010 (1971) .
The sewage problem in Kennedy Park
was far more serious than the potential harm alleged in the case
at bar .
There, the city had existing deficiencies which had
already produced a condition of open sewage.
The district court
and the Second Circuit both held that this problem failed to constitute a compelling interest for a discriminatory ordinance.
Bucolia ignores the holding of Kennedy Park and claims
that a future problem based on projected needs is a compelling
interest.
The City's reliance on Steel Hill Oev., Inc. v. Town
of Sanbornton, 469 F.2d 956 (1st Cir. 1972) to support this
assertion is misplaced.
To the contrary , the philosophy of Steel
Hill supports the Workers position that environmental harms fail
to constitute a compelling interest .
The court in Stee l Hill
accepted , by implication, the holdings of cases which have denied
municipalities the right to exclude newcomers when there is an
existing demand for housing.
~.,
National Land & Implement Co.
v. Kohn , 419 Pa . 504 , 215 A.2d 597 (1965).
The court in Steel Hill
32
distinguished its fact situation as atypical since the issue
involved a developer's desire to create an artificial demand for
tourists rather than the city's attempt to exclude a natural
demand for housing.
Further, the court emphasized that its appro-
val of the minimum lot size was a stop-gap measure, and that resort to the courts. was always possible if the zoning restrictions
became permanent barriers to the right to enter and abide.
"Where there is natural population growth, it has to go somewhere,
unwelcome as it may be, and in that case we do not think it should
be channelled by the happenstance of what town gets its · veto in
first."
Steel Hill at 962.
The conclusion, therefore, is that
the City's assertion of compelling interest is defeated by the
very case upon which it relies.
Finally, the City attempts to justify the moratorium as
a compelling interest on the authority of Confederacion de la
Raza Unida v. City of Morgan Hill, 324 F. Supp. 895 (N.D. Cal.
1971).
The ordinance in that case prevented development of low-
income housing in certain specified areas of Morgan Hill.
Such
housing was, however, generally available throughout the city.
In view of the complete absence of low and middle-income housing
in the vicinity of Bucolia, the holding of Confederacion is
inapplicable.
Further, that case did not involve the question of
equal protection, as there was no allegation of "racial, ethnic,
or income" discrimination.
Id. at 897.
Hence, the case does not
support the City's assertion of compelling interest.
The foregoing cases justify the conclusion that concern
for future environmental problems fails, as a matter of law, to
sustain the burden of compelling interest.
Even assuming the
33
City's justification was consistent with case law, a genuine issue
of material fact exists as to whether the Record is sufficient to
summarily conclude the presence of compelling interest.
The City,
therefore, did not demonstrate an entitlement to summary judgment
as a matter of law, and the Workers should have the opportunity
to proceed to trial on the merits.
III .
THE PETITIONER WAS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE
THE TOTAL EXCLUSION OF MULTIPLE-HOUSING UNITS FROM AN AREA
IS, AS A MATTER OF LAW, DETRIMENTAL TO THE GENERAL WELFARE.
The traditional right of an individual property owner to
use his land as he desires is inherently contradictory to the
responsibility of government to safeguard the general welfare.
This Court resolved the conflict in Village of Euclid v. Ambler
Realty Co., 272 U.S. 365 (1926).
The health, safety, and welfare
of the general public must of necessity be considered superior to
the rights of the individual property owner.
Hence, Euclid estab-
lished the validity of zoning as a legitimate function of the
state police power.
This ·Court stated that in order for an ordi-
nance to be declared unconstitutional, there must be a showing
that the provisions "are clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety,
morals, or general welfare."
Id. at 395.
Because the moratorium
was an arbitrary exercise of police power with no substantial
relation to the general welfare, it constituted a taking of the
Union's property without due process of law.
A.
The sole eurpose of the moratorium was to prevent the
construct~on of multiple-housing units.
The City justified the moratorium to prevent the
"advers~
environmental effect that large scale non-resident use will have
34
on its water and sewer system"
(R. 5)
(emphasis added).
Analysis
of the City's objection to "large scale" and "non-resident" use
demonstrates that the sole purpose of the moratorium was to prevent the construction of multiple-housing units.
1.
The Union's status as a non-resident was immaterial
to the denial of a water permit.
The extent of a city's duty to provide or to continue
service to non-residents is a question of state law.
The states
have adopted the near-unanimous position that a city has no initial duty to provide services to non-residents; but once this
obligation is assumed, the city must serve all similarly-situated
in a nondiscriminatory manner.
E.g., City of Milwaukee v. Public
Servo Comm'n, 268 Wise. 116, ___ , 66 N.W.2d 716,718 (1954).
The
Petitioner has undertaken to serve non-residents in the unincorporated area adjacent to Bucolia, as evidenced by the granting of
water service to Silver Knoll, Colossal, and the high-income res idential subdivision (R. 3).
The present denial of the Union's
request indicates the Petitioner has interpreted its "power" to
grant access to non-residents (R. 3) as a right to determine on a
discriminatory basis who is to receive
services.
th~
benefit of the City's
In view of the access granted -to other non-residents,
the Petitioner cannot selectively discriminate against multiplehousing solely because the Union's property lies outside the municipal boundary.
See Borough of Cresskill V. Borough of Dumont,
15 N.J. 238, ___ , 104 A.2d 441, 446 (1954).
The Respondent is not unaware of the City's other fears
of "large scale" use and adverse environmental effects.
The crux
of the present analysis, however, is that the City's real objection
35
was not to the Union's status as a non-resident; but rather, to
the stigma of multiple-housing.
If "non-residency" was the real
basis for objection, the City could have declared a moratorium on
all subsequent non-resident use, and thereby have presented an
entirely different issue before this Court.
See Mongiello v.
Borough of Hightstown, 17 N.J. 611,112 A.2d 241 (1955).
2.
The City has not prohibited large scale development
in any form other than multiple-housing units.
The City further justifies the moratorium due to fear of
the adverse effects of "large scale " use of its water facilities.
Note, however, that nothing in the City ' s zoning scheme prevents
large scale usage of water in any form other than multiple-housing.
During the pre ceding decade, Bucolia's population increased
by nearly four-thousand persons (R. 2).
Nothing in the Record
suggests the unlikelihood of similar residential growth in the
future.
The City, however, apparently has no fear of adverse
environmental effects from new residents who can afford singlefamily dwellings on four acre plots.
Likewise, additional non-
res i dential development (other than apartment units) ostensibly
presents no environmental danger.
Indeed, there is nothing in
the City's present ordinances to prevent further commitment to
new industries desiring to locate near Bucolia.
The Respondent does not suggest that the City, when faced
with any of the aforementioned possibilities, will necessarily
grant such additional use .
Bucolia might well deny future appli-
cations with an ex post facto justification similar to the one
used in the case at bar .
Nonetheless, the City's retention of
the options of further development coupled with its asserted fear
36
of "large scale" use justifies concluding that the moratorium was
specifically designed to prevent construction of multiplehousing units.
B.
Multiple-housing units contribute" to the general welfare.
The availability of adequate housing for all is an estab-
lished national policy essential to insure the general welfare.
Hence, by definition, any action which subverts this policy is
inconsistent with the general welfare.
In addition to this
overall contradiction, there are specific reasons to conclude
that the availability of multiple-housing would enhance rather
than harm the general welfare.
1.
The availability of multiple-housing units would
have social utility to Bucolia.
The Petitioner appears before this Court as a city seeking a reasonable means of balancing the inevitability of future
development with the possibility of future environmental harm.
The most realistic solution to this problem is the construction
of multiple-housing units.
Apartment complexes represent the
most efficient means of conserving water and preventing the environmental damages which result from the inability to contain
sewage.
See Lloyd, A Developer Looks at Planned Unit Development,
114 U. PA. L. REV. 3, 5 (1965)
i see generally Babcock & Bosselman,
Suburban Zoning and the Apartment Boom, 111 U. PA ; L. REV. 1040,
1062-64 (1963).
An elementary principle of water resource con-
trol is that per capita water consumption decreases as population
density increases.
See,
~.,
Water Use Committee Report, Trends
in Water Use, 65 J. AM . WATERWORKS ASS'N 285, 290-91 (1973).
37
The advantages of multiple-housing become obvious when
compared to the City's present housing requirements.
The resi-
dents of Bucolia would use far less water in an apartment complex
than in their single-family dwellings on four acre plots.
This
would be true if for no other reason than an apartment would
obviate the necess,ity of each family unit watering the grass and
shrubbery of an area approximately the size of four football
fields.
See id. at 290.
Multiple-housing results in less per
capita water consumption than single-family dwellings (Appendix B).
Unless the City is prepared to unconstitutionally halt all
future development , the construction of multiple-housing Wo.uld
have the immediate social utility o.f preserving the water supply
and minimizing the danger of Po.llution.
The only actio.n taken by
the City to combat the fear o.f adverse environmental harms is to.
eliminate the mo.st efficient means of securing that go.al.
Such
action bears no substantial relatio.n to the general welfare.
2.
The exclusion ' o.f multiple-housing units harms the
general welfare o.f the surro.unding region .
The morato.rium raises the issue of a municipality's right
to create regio.nal tensio.ns by a self-insulating, exclusionary
zoning scheme.
There is a point when a municipality's desire for
exclusivity must, as a matter of law, yield to. regio.nal needs and
co.nsideratio.ns.
bo.undaries.
The general welfare do.es not sto.P at municipal
~. ,
Oakwo.o.d at Madison, Inc. v. Township o.f Madi-
so.n, 117 N.J. Super. 11,
,283 A.2d 353, 358 (1971).
This Co.urt
approved zoning as a legitimate exercise of Po.lice power, but did
no.t "exclude the possibility of cases where the general public
interest Wo.uld so far o.utweigh the interest of the municipality
38
that the municipality would not be allowed to stand in the way."
Village of Euclid, supra, at 390.
The City, through its contract with Colossal, is solely
responsible for the resulting increased demand for housing.
Ye t
Bucolia seeks judicial sanction of its attempt to achieve the benefits of industrialization while simultaneously shifting the
accompanying burdens to the rest of the county.
A city cannot
"collect the cream in its territory and reject the skimmed milk."
Ridley v. Pennsylvania Pub. Util. Comm'n, 172 Pa . Super. 472, ___ ,
94 A.2d 168, 171 (1953) .
The City's exclusionary zoning is not reasonable land-use
planning, but regional "warfare. "
OF OUR URBAN PROBLEMS 64 (1962).
R. VERNON, THE MYTH AND REALITY
The Workers have the option of
commuting from their present homes in Carbonville or quitting their
job with Colossal and seeking new employment in Carbonville.
Neither alternative is acceptable.
To force the Workers to com-
mute is to place an unnecessary economic burden on those least
capable of bearing it.
The low and middle-income Workers must
secure dependable transportation and endure the financial strain
of a sixty-mile round trip each day.
Situations such as this are
one of the prime causes of the nation's -current failure to match
available jobs with available personnel.
U.S. BUREAU OF LABOR STA-
TISTICS , DEP'T OF LABOR, MONTHLY LABOR REVIEW, THE DECENTRALIZATION
OF JOBS (1967).
Some commentators argue an employee has an econo-
mic right not to be zoned out of the area wherein his job is
located.
by Zoning:
Aloi, Goldberg, & White, Racial and Economic Segregation
Death Knell for Home Rule?, 1 U. TOLEDO L. REV . 65,
80-84 (1969).
The effect might be a denial of the right to
39
equal employment due to the inability to obtain housing within
the vicinity of Bucolia.
(1970).
See M. BROOKS, EXCLUSIONARY ZONING 17
At the very least, however, the City is responsible for
th e plight of the Workers, and should not be allowed the arbitrary
right of injuring their general welfare.
To force the Workers to quit their jobs and seek new
employment would be harmful both to Colossal and to Carbonville.
Colossal would be faced with a shortage of clerical help; and the
potential employees could no more afford housing in Bucolia than
the present Workers.
The end result would be to force Colossal
either to maintain a permanent labor shortage or to pay executivelevel salaries to clerical employees in order for them to obtain
housing within a reasonable distance of the plant.
Carbonville,
on the other hand, would face the necessity of creating new jobs
for the Workers or suffering the financial and social burdens of
increased unemployment.
These specific harms generated by the City's actions are
indicative of the nationwide conflicts stemming from local zoning
restrictions.
The increasing severity of this problem has
prompted the recommendation for abolition of municipal zoning
authority in favor of regional planning boards under the auspices
,
of the state legislatures.
NATIONAL COMM'N ON URBAN PROBLEMS,
FRAGMENTATION IN LAND-USE PLANNING AND CONTROL (1969).
The courts
have likewise recognized that municipal zoning authorities must
consider regional requirements.
~.,
277, ___ ,225 A.2d 321, 326 (1966).
Kunzler v. Hoffman, 48 N.J.
The concept of municipal
autonomy was crisply rejected by the Pennsylvania Supreme Court:
40
It is not for any given township to say who mayor may not
live within its confines, while disregarding the interests
of the entire area. I f . • • [Bucolial is successful in
unnaturally limiting its population growth through the use
of exclusive zoning regulations, the people who would normally live there will inevitably have to live in another
community, and the requirement that they do so is not a
decision that • • • [Bucolial should alone be able to make.
Appeal of Kit-Mar Builders, Inc. , 439 Pa. 466,
, 268 A.2d
765, 768-69 (1970). .
-A legal remedy exists to insure that a community consider regional
needs.
If a zoning ordinance results in damage to another com-
munity, the injured municipality has both standing and a cause of
action for damages.
Township o·f River Vale v. Town of Orangetown,
403 F.2d 684 (2d Cir. 1968).
C.
As a matter of law, the City has no right to totally
exclude a land-use which contributes to the general
welfare.
There are some uses of land that carry such social util-
ity that courts simply will not tolerate total exclusion.
For
example, a blanket prohibition of homes for children represents
no substantial relationship. to the general welfare and is therefore an arbitrary abuse of zoning authority.
Village of Univer-
sity Heights v . Cleveland Jewish Orphans' Home, 20 F.2d 743
(6th Cir. 1927), cert. denied, 275 U.S. 569 (1927).
The construc-
tion of a university hospital has a substantial relationship to
the general welfare .
389 (D.D.C. 1953).
unacceptable.
,,]62 (1953) .
American Univ. v. Prentiss, 113 F. Supp.
The total exclusion of nursery schools is
City of Chicago v. Sachs, 1 Ill. 2d 342, 115 N.E.2d
An ordinance which prohibits the construction of a
church anywhere within an area is unreasonable.
Board of Zoning
Appeals v. Decatur Ind. Co. of Jehovah's Witnesses, 233 Ind. 83 ,
117 N.E.2d 115 (1954).
Although billboards may be limited to
41
certain areas, this form of advertising has some social utility
and cannot be totally excluded from a
municipa~ity.
Norate Corp.
v. Zoning Bd. of Adjustment of Upper Moreland Township, 417 Pa.
397, 207 A.2d 890 (1965).
Finally, the right of a municipality
to exclude a quarry was rejected in Exton Quarries, Inc. v. Zoning Bd. of Adjustment of West Whit'e land Township, 425 Pa. 43,
228 A.2d 169 (1967).
The city in Exton argued that air and noise
pollution resulting from the quarry would be harmful to the general welfare.
This contention was supported by an ex post facto
expert study.
The court observed that if one municipality was
allowed to ban an undesired use of land, "it is not unlikely that
surrounding municipalities will do the same--thus increasing the
distance to an alternative site and the concomitant economic disadvantages. "
Id. at
--'
228 A.2d at
179 ~
Regardless of the
testimony of the planning consultant, the city could not constitutionally prohibit quarrying throughout its borders.
Id. at
228 A.2d at 18l.
The aforementioned cases demonstrate that, as a matter of
law, the exclusion of a land-use which substantially contributes
to the general welfare is an arbitrary aQuse of the police power.
The Respondent submits that for reasons previously discussed, the
availability of multiple-housing carries a social utility at
least equal to that of the above examples.
a fact of life that communities
accept."
(1970).
"Apartment living is
[Bucolial must learn to
Appeal of Girsch, 437 Pa. 237,
, 263 A.2d 395, 399
The moratorium is an arbitrary exclusion which bears no
substantial relationship to the general welfare.
The Union was
therefore denied due process in the use of its property as
,
42
desired.
Any government action which harms rather than enhances
the general welfare of an entire region and simultaneously continues an established pattern of discrimination is, by definition,
arbitrary and capricious.
The Petition e r has therefore failed,
as a matter of law, to demonstrate an entitlement to summary
jUdgment.
CONCLUSION
For the reasons stated, the Respondent respectfully prays
that this Court affirm the judgment of the United States Court of
Appeals for the Twelfth Circuit so that the Union and the Workers
will have the opportunity to proceed to trial on the merits.
Respectively submitted,
CERTIFICATE
We certify that this brief has been prepared and served
in compliance with the Rules of . the 1973 National Moot Court
Competition .
A P PEN D ICE S
Page
APPENDIX A
United States Constitution,
Fourteenth Amendment § 1 ................................ .. .............................. A-I
civil Rights Act of 1866,
42 u.s.c. § 19.81 (1870) •••....•••••••••.•••.•••.•... • .•. A-I
Civil Rights Act of 1866,
42 U.S.C. § 1982 (1866) .. ....... .. .. .. .... ............ .. ............................ A-I
Ci vil Rights Act of 1871,
42 u.s.c . § 1983 (1871) • .. ••. . .••• • • •. • .. •. .. •. • .••• ... • A-I
Fair Housing Act of 1968,
42
u.s.c .
S 3601 ( 1968)
...... ........ .... .... .. ...... .. .. .... .. .. ........ .. .... ...... .. .. A-2
Federal Rules of Civil Procedure,
Rule 56 .... .. .. ...... ...... .... .. .. .. .. .. .................. .. .. .... .. .. .. .. .. .. .. ...... .. ................ A-2
APPENDIX B
Household Water Use Plotted Against
Number of Persons Per Dwelling Unit,
65 J. AM. WATERWORKS ASS'N 235 (1973)
• •••••••••••••••••• B-1
A-I
A P PEN D I X
A
UNITED STATES CONSTITUTION
Fourteenth Amendment,
§
1.
All persons born or naturalized in the united States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
CIVIL RIGHTS ACT OF 1866 , 42 U.S.C. § 1981 (1870)
1981.
§
Equal rights under the law.
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make
and enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens,
and shall be ,subject to like kind, and to no other .
CIVIL RIGHTS ACT OF 1866, 42 U.S.C. § 1982 (1866)
§
1982.
Property rights of citizens.
All citizens of the United States shall have the same
right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey
real and personal property.
CIVIL RIGHTS ACT OF 1871 , 42 U.S.C . § 1983 (1871)
§ 1983.
Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceedings for redress.
A-2
FAIR HOUSING ACT, 42 U.S.C. § 3601 (1968)
§
3601.
Policy.
It is the policy of the United States to provide, within
constitutional limitations, for fair housing throughout the United
States.
FEDERAL RULES OF CIVIL PROCEDURE, RULE 56
Rule 56.
Summary Judgment.
(a) For Claimant. A party seeking to recover upon a
claim, counterclaim, or cross-claim or to obtain a declaratory
judgment may, at any time after the expiration of 20 days from
the commencement of the action or after service of a motion for
summary judgment by the adverse party, move with or without
supporting affidavits for a summary judgment in his favor upon all
or any part thereof.
(b) For Defending Party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or
any part thereof.
(c) . Motion and Proceedings Thereon. The motion shall be
served at least 10 days before the time fixed for the hearing.
The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.
A summary judgment, interlocutory in character, may be rendered
on the issue of liability alone although there is a genuine issue
as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion.
If on motion
under this rule judgment is not rendered upon the whole case or
for all the relief asked and a trial is necessary, the court at
the hearing of the motion, by examining the pleadings and the
evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith
controverted. It shall thereupon make an order specifying the
facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action
as are just. Upon the trial of the action the facts so specified
shall be deemed established, and the trial shall be conducted
accordingly.
A-3
(e) Form of Affidavits; Further Testimony; Defenses
Required. Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissable in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred
to in an affidavit shall be attached thereto or served therewith.
The court may permit affidavits to be supplemented or opposed
by depositions, answers to interrogatories, or further affidavits.
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of his pleading, but his response,
by affidavits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for
trial.
If he does not so respond, summary j udgment, if appropriate, shall be entered against him.
(f) When Affidavits are Unavailable.
Should it appear
from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to
justify his opposition, the court ma y refuse the application for
judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may
make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to
the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith
or solely for the purpose of delay, the court shall forthwith
order the party employing them to pay to the other party the
amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees,
and any offending party or, attorney may be adjudged guilty of
contempt.
B-1
A P PEN D I X
B
HOUSEHOLD WATER USE PLOTTED
AGAINST NUMBER OF PERSONS PER DWELLING UNIT
Source:
65 J. AM. WATERWORKS ASS'N 233 (1973).
90
80
70
60
flII ..
50
09 D
00f8
tlc.
'" 40
Median Value
"
~
)-
::::>
.."
;::
~
~
30
".c0
"0
"
:I:
~
20
10~1-----------------L2----------~3-------L4-----76----~6~~7--~8--~9--:'10
People per Dwelling Unit