PCA Case Law Maher v. New Orleans

Case Law #1: Paula-Beth Lashley Maher Administrator of the Succession of Morris G. Maher, Plaintiff-Appellant v. The City of New Orleans et al, Defendants-Appellees Date:July 31, 1975 United States Court of Appeals Fifth Circuit Issues posed by the Case: 1) Plaintiff Maher, based on the Fifth assails an ordinance of the City of New Orleans that regulates the preservation and maintenance of buildings in the Vieux Carre section of the city, popularly known as the French Quarter. The Plaintiff asserts that the ordinance inhibits the due process clause because it offers no objective criteria to the Commission charged with its administration. The plaintiff also contends that the ordinance, as applied and under the banner of regulation, constitutes the taking of his property without due compensation. 2) After dealing with the issues at hand, the district court reached the conclusion that the Ordinance was valid, affirm by the fifth circuit. Factual Background 1) By amendment to the Louisiana Constitution in 1936, authority was given to the City of New Orleans to create a commission whose purpose was: a) the preservation of buildings in the Vieux Carre section of New Orleans,deemed in the opinion of the Commission, to have architectural and historical value, and which should be preserved for the benefit of the people of the city and state. b) implement the historical preservation, the City enacted the Vieux Carre Ordinance. This Ordinance established the Vieux Carre Commission and creates a framework of rules governing its powers, duties and operations. Among its other provisions, the Ordinance stipulates that, to perform construction, alterations, or demolition with the the defined boundaries, a permit must be obtained. 2) the controversy centers on the Victorian Cottage located at 818-22 Dumaine Street, adjacent to the Maher residence in the Vieux Carre. Mr. Maher, who owned the property until his death had sought, since 1963 to demolish the cottage and build a seven-story complex on the site. 3) Following preliminary approval of Maher's proposal by the Architectural Committee, the Commission on April 16. 1963, disapproved Maher application for demolition. Almost from the beginning of the application, interested individual neighborhood owners and the organized groups such as the Vieux Carre Property Owners and Associates, Inc; the French Quarter Residents Association; and the Louisiana Council for the Vieux Carre opposed Maher's proposal. 4) Maher undertook a series of attempts to secure approval for his plan from the Commission. After several refusals, the Commission finally issued the permit. Ultimately, construction was prohibited when on August 16, 1966, the City Council for New Orleans, on the basis of an appeals, forbade the grant of a demolition permit. 5) While proceedings before the Commission and City Council were pending, Maher institute a suit in the Civil District for Orleans Parish, Louisiana. Upon the City Council's final refusal to issue a demolition permit, litigation in state court was initiated. Relief was requested was a declaration that the City Council's action was beyond its authority, and hence, null and void. On February 26, 1968, the Civil District Court granted in favor for Maher. 6) The Louisiana Court of Appeal reversed the decision, holding that the City Council's review was proper and, further, that the Ordinance was constitutional both on its face and as applied to Maher's application. On appeal, the Louisiana Supreme Court affirmed the the judgement of the Court of Appeals that the council's action lay within the purview of its authority, but held that the constitutionality of the Ordinance had not been pleaded in the trial court and consequently could not be considered on appeal. 7) In 1971, Maher filed a federal suit under the civil rights act against the City and its agencies, seeking a declaratory judgement that the Ordinance is unconstitutional and an injunction against its enforcement. 8) The district court held that collateral estoppel and res judicata were not barriers to litigation and held the Ordinance was constitutional. Collateral Estoppel and Res Judicata 1) The initial before the fifth circuit is whether the this suit is barred by the principles of res judicata or collateral estoppel, these doctrines eliminate the unnecessary re-litigation. Where applicable, res judicata prohibits re-adjudication of all matters that were, or might have been litigated respecting the same cause of action between two parties. By comparison, collateral estoppel would preclude renewed controversy over an issue already decided even when, a different cause of action is presented. 2) Couched in the determination whether principles of finality governed the disposition of this case is the underlying question of whether the matter is one of federal or state law. Different tests were relevant depending on whether the choice favored one or the other. However, in this circumstance, the outcome is unaffected, since the court has determined that the suit was not barred under either Louisiana or federal finality rules. Louisiana state law, based on the French Code Civile, takes a more narrow perspective on the doctrines of repose than jurisdictions whose rules are based on common law. Res judicata in Louisiana forbids re-litigation only the ultimate judgement rendered, but not extending broadly to matters that "might have been litigated" and not comprehending intermediate facts. Thus, less importance is attached to finality than in common law jurisdictions and all doubts are resolved in favor of re-litigation. 3) The district court and parties proceeded on the assumption that applicable law regrading finality is that of Louisiana. Upon review, if Louisiana law controls, the conclusion of the district that the suit may be maintained does not appear erroneous. 4) Under federal jurisdiction, in a diversity matter, state law principles of collateral estoppel govern, under the rational of Erie Railway Co. v. Tompkins. Unlike a diversity case, this suit presents a federal constitutional question to the federal courts for resolution according to federal law. Despite the fact that questions of state law and issues of local importance play a core role, this case was characterized as a federal matter. In such event, federal notions of repose must serve as the guideposts of analysis. 5) In Exhibitors Poster Exchange, Inc. v National Screen Service Corp the fifth circuit applied federal concepts of finality in an antitrust case arising from certain business practices in Louisiana. The Court disregarded piecemeal results and carefully balanced the interest implicated in finality determinations. 6) The doctrines (collateral estoppel and res judicata) must be used to protect the litigants right to a hearing as well as his adversary and the courts from repetitive litigation. 7) With this admonition in mind, the fifth circuit dismissed the City's claims from this suit. 8) The argument is made that collateral estoppel controls the disposition of this case. However, the constitutional issues posed by Maher were expressly excluded from consideration by the Louisiana Supreme Court. The fifth circuit court concluded that collateral estoppel does not prohibit this suit. 9) The argument that res judicata prevented Maher's presentation to the federal courts required a more subtle analysis of the facts and procedures. For res judicata to interdict an action, the rule is that "judgement 'on the merits' in a previous suit involving the same parties or their privies prohibits a second suit based on the same cause of action." It is not disputed that the state action in this matter was between parties identical with or privy to the parties here, and the judgement in that case was based on the merits and final. The inquiry centers on whether the cause of action set forth in this matter is identical with that in the prior state case. 10) There is no per se rule that the existence of earlier litigation between the same parties, predicated on common fact establishes res judicata. Instead, in this circuit, it had been held. 11) The main test for comparing causes of action is whether or not the primary right and duty, and delict or wrong are the same in each action. 12) This test is easier to formulate than apply, but its application is aided by precedent. In Exhibitors Poster the fifth circuit court tolerated a succession of federal suits with related antitrust claims. Although a single business-policy decision dating from a specific period formed the basis for the suit, res judicata did not bar the action, the Court held because the alleged illegal conduct continued, giving rise to new damage claims. After paying heed to possible collateral estoppel impact of individual issues previously adjudicated, the Court focused exclusively on the definition of "cause of action," held that new causes of action were alleged in the later suit. 13) Since Maher first brought the suit in state court, the similarity of the two causes of action must be assessed by reference to the local Louisiana definition of "cause of action." The Court, in applying Louisiana law in a franchise dispute held that no res judicata barrier to a federal suit for breach of contract following a state action for conversion and business injury,both arising from the sequence. The panel states that the gists of the actions were different. 14) The language in both complaints bear some similarity because of the pleading requirements of Louisiana law. 15) There was overlap in the operative facts in both claims. It was true that Maher's success in either action might have resulted in the same ultimate outcome, the dismantling of the cottage. Nevertheless, the state and federal complaints presented distinct causes of action one based on state law, one based on federal constitutional precepts. The analysis and precedents used to make the two arguments are quite distinct. Somewhat disparate proof was required in determining whether the City Council overstepped its authority under Louisiana law, or whether a taking had occurred contrary to the Fifth Amendment. 16) The Fifth Circuit did not decide whether the same result would have be obtained had the initial suit been brought in the federal court operating under federal rules and policies respecting joinder of claims arising from a common factual basis. All that was decided by the Fifth Circuit Court under the configuration of this case, combined with local Louisiana pleading and practice rules, the disposition of the merits is not foreclosed by res judicata. 17) The very policies favoring an end to litigation pointed to the immediate adjudication of the merits. At that point, no fewer than five tribunals were presented with Maher's claims respecting the elimination of his cottage. The parties spent themselves unsuccessfully to obtain a judicial response. Even if the Court dismissed the action, litigation between the parties would not have necessarily ended. Maher would still have returned to the states courts to pursue his constitutional claim. Thus, in the interest of judicial peace, dismissing the claim on the ground of res judicata would not have been the solution. 18) Furthermore, it appeared that proceedings were instituted against Maher for violating the maintenance clauses of the Vieux Carre Ordinance. As a defense to any prosecution under these provision the question of an unconstitutional taking of Maher's property might have arisen and required judicial attention in another forum. 19) For this reason the Court concluded that res judicata and collateral estoppel and not applicable, and the energy of both parties and the courts would have best served by addressing the merits of Maher's allegations. 20) The Vieux Carre Ordinance is a propert exercise of police power. 21) The Supreme Court placed guidelines to be used for consideration in determining whether the Vieux Carre Ordinance violated due process. A legislative determination is generally associated with the presumption of constitutionality but is also subject to several tests before its validity is established. To be sound, the enactment must be within the perimeter of police power, an authority residing in the law-making body to secure, preserve and promote the general health, welfare, and safety. To sustain a regulatory ordinance as a suitable exercise of police power, it must bear a real and substantial relation to a legitimate state purpose. The means selected must be reasonable and of general application and the law must not infringe on constitutionally protected interests. 22) Maher contended that, although the legislative purpose underlying the preservation of Vieux Carre, maybe unobjectionable, the general program of effectuation as well as the denial of Maher's demolition permit had inadequate standards and arbitrary enforcement that violated due process. Furthermore, he asserted that the law was confiscatory in its operation and constituted a taking that required compensation. 23) A substantial body of precedent existed respecting the appropriate balancing of interests where an ordinance diminished the freedom of an individual owner to dispose of his property in the name of what the lawmaker deemed the greater public benefit. It is generally accepted that legislative bodies are entrusted with the task of defining the public interest and purpose, and enacting laws in the furtherance of the general good. The Supreme Court had made it clear that, while police powers are not unlimited, its boundaries are ample. Drawing on the rich and flexible police power, a legislature has the authority to respond to economic and cultural developments cast in a different mold, and devise new solutions to new problems. In Euclid v. Ambler Realty, the watershed case upholding the right of a municipality to enact a general zoning ordinance, the Supreme Court observed: 24) Problems developed and constantly developed, which requires and continue to require additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half century ago, probably would have been rejected as arbitrary and oppressive. 25) Accordingly, no fixed constraints may be placed on police power in the future. Rather, each case must be evaluated on its own facts and in context to prevailing circumstances. 26) A keystone of due process analysis is the determination that the state purpose to be served is legitimate. Thus, it would be beneficial to detail the substantial support that exists for a legislative determination to preserve historic landmarks and districts. The Ordinance in question has declared its objective: 27) The Vieux Carre shall have for its purpose the preservation of buildings in the Vieux Carre section of the city as in the opinion of the Commission, shall have architectural and historical values and which should be preserved for the benefit of the people of the City and State. 28) Proper state purposes may encompass not only the goal of abating undesirable conditions, of of fostering ends the community deems worthy. In Berman v. Parker the Supreme Court gave a "well-nigh" effect to the legislative determination of community needs and solutions, upheld the purposes of slum clearance programs designed to "develop a more balanced, more attractive community. 29) Nor need the values advanced be solely economic or directed at health and safety. The police power inhering in the lawmaker is more generous, comprehending more subtle and ephemeral societal interests. "The values (that the police power) represents are spiritual as well as physical, aesthetic as well as monetary. It is within the domain of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." 30) The Fifth Circuit held that in Stone v. City of Maitland zoning ordinances may be sustained under the police power where motivated by a desire to "enhance the aesthetic appeal of a community." The Court noted that with approbation city action to maintain "the value of scenic surroundings" and "the preservation of the quality of our environment." 31) One of the nation's distinctive historic districts is found in New Orleans. Federal, state, and local government have ascertained that it would be beneficial to society to preserve the French Quarter. 32) The federal government has also acknowledge our debt to the past in the National Historic Preservation Act of 1966: Congress finds and declares a) that the spirit and direction are founded upon and reflect in its historic past. b) that the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people... 33) An Advisory Committee on Historic Preservation was established, and a National Register of Historic Places was developed that included the Vieux Carre. 34) The Court was not able to reverse the judgement of the legislature that it is in the public interest to maintain status quo in the Vieux Carre and to closely scrutinize any proposed change in the ambience by private owners. When a legislative determination is questionable, the legislative judgement should be allowed to control. Thus The Court concluded that considering national sentiment for preserving the country's heritage and with particular regard to the context of the unique and characteristic French quarter, the objective of the Vieux Carre Ordinance falls within the perimeter of acceptable police power. 35) Since the issue at hand is legislation designed to effect a legitimate economic and social policy, so as the means chose a matter entrusted to the legislature are reasonable not arbitrary, due process is satisfied. It is not disputed that the Vieux Carre Ordinance furthers the objective of preserving the character of the district in a meaningful fashion. 36) The Ordinance is applied to a well-defined geographic area. Additionally, it established a Commission whose professional qualifications and means of selection are delineated. Within the boundaries of the French Quarter, the Commission is direction to review plans for all proposed demolition or construction and its duties and procedures are specific. After, due consideration the Commission reports its recommendations to the Director of the Department of Safety and Permits, whereupon a permit maybe issued. Provision is made for review by the City Council. 37) Though generally the procedures outlined are not at fault, Maher attacked the schema as a violation of due process because, in his view, it provided inadequate guidance to the Commission for the exercise of its administrative judgement. The City conceded that no official objective standards were promulgated in this regard. Maher suggested that formal standards are mandator to guide the Commission in its resolution of buildings worthy of preservation. 38) To satisfy due process, guideline to aid the commission charges with implementing a public zoning purpose should not be so rigidly drawn as to prejudge the outcome in each case, precluding reasonable administrative discretion. Because of the circumstances pertaining to the Vieux Carre, The Court concluded the Ordinance provided adequate legislative direction to the Commission to enable it to perform its function consonant with the due process clause. 39) While concerns of aesthetic or historical preservation are not precisely quantified, certain measures have been undertaken here to assure that the Commission would not be remiss in acting without standards in an impermissible manner. First, the Louisiana constitution, the Vieux Carre Ordinance, and by interpretation the Supreme Court of Louisiana have specified their expectation for the Vieux Carre, and the values for implementation by the legislation. 40) Further the legislature exercises substantial control over the Commission's decision making in several ways. When possible, the ordinance is exact, for example, in defining the district, defining what alterations in which locations require approval, and particularly regulating items of special interests, such as floodlights, overhanging balconies, or signs. 41) Another method by which the lawmaking body restricted potential for abuse by the Commission was by specifying the composition of the body and its manner of selection. Therefore, the City is assured that the Commission included architects, historians, and business people offering complementary skill, experience, and interests. 42) The elaborate decision-making and appeal process set down in the ordinance created another structural check on any potential of arbitrariness that might exist. Decisions of the Commission may be reviewed ultimately by the City Council. The Court concluded that this procedure was followed. 43) As observed by Maher, it is true that no officially enacted regulations pinpointed each decision by the Commission. Nonetheless, other than evident purpose of the legislation and tight lines of review maintained by the legislature over the operation of the Commission, other rich sources were available to advance a reasoned exercised of the profession and scholarly judgement of the Commission. It may be difficult to capture the regional atmosphere through a set of regulations. However, it is possible that old city plans and historic documents, as well as photographs and contemporary writings may provide an abundant and accurate source of information to guide the Commission. The district court observed, In this case, the meaning of the mandate to preserve the character of the Vieux Carre "takes clear meaning from the observable character of the district to which it applies." 44) Other than contemporary indicia of the nature and appearance of the French Quarter at earlier times, the Commission had the advantage of recent impartial architectural and historical studies of the structures. The Vieux Carre Survey Advisory Committee conducted its analysis and assessed the merit of each structure with respect to several factors. For example, the Maher cottage was deemed worthy of preservation as part of the over-all scene. While the survey was in no way binding on the Commission, it did furnish an independent and objective judgement respecting the edifices in the area. The existence of the survey and other historical source material assisted in anchoring the Commission's discretion to legislative purpose. 45) Thus, the Court concluded that the present zoning ordinance, enacted to promote the social and economic goals of historic district preservation judged of public value, did not delegate unfettered authority to the Vieux Carre Commission. Rather, the legislature provided adequate structure and guidelines to it. 46) Although it primarily concerned a taking, Berman v. Parker is an appropriate analogy to this situation. The question arose whether it was necessary to have legislative guidance for each individual decision in context to a district-wide project to eliminate slums and blighted areas. A redevelop,ent agency decided to raze an entire district, and an individual owner objected to the implementation of the decision with respect to its property, insisting that its building should be allowed to stand because it was safe, sanitary, and profitable. 47) The Supreme Court held that the agency, acting with the needs of the whole community in mind and the advantage of expert consultation was able to implement the mandate with respect to the entire district without the need for specifically demonstrating that in each case, action was necessary to the purpose of legislation. By allowing each affected party to challenge the basis for an agency determination could impede a comprehensive project. It appeared that the Vieux Carre Commission, like the agency in Berman, acted in harmony with the public interest and directive, affording procedural fairness, and utilized expert assistance. 48) By contrast, there is a case in which the Supreme Court did strike down a zoning ordinance because of improper delegation of arbitrary, unreviewable decision making power by an administrative body, Seattle Trust Co. v. Roberge. In this case a local ordinance prohibited the building of a philanthropic institution in a specific area, unless written consent was given by the neighbors. According to the Court, this violated due process because no standards existed to govern consent., and consent could be withheld for any or no reason. An owner was not afforded review or other recourse and was subject to the caprice of its neighbors. 49) Additionally to his argument, that the ordinance is arbitrary for lack of standards, Maher asserted that the ordinance as applied to him was arbitrary because the decision of the City Council to prohibit him from demolishing the Dumaine Street residence was unsupported. The district court, faced with this argument stated, 50) Considerable testimony supported the Council's decision that the cottage had substantial architectural value as part of the Vieux Carre scene as well as some individual architectural merit. 51) (Although) a finding (in Maher's favor) would have been possible,...the facts that the city authorities did not ultimately agree...does not make their decision arbitrary. The district court was persuaded that 52) This case was not an example so much of a lack of standards as a disagreement whether or not the Maher cottage qualified for demolition under the applicable standards. In the view of the whole case record, it the opinion of the Court that since the City Council fairly resolved a difference of opinion, the judgment of the zoning authority should be followed. 53) No reversible error in the district court's conclusion was detected. 54) IV. There is no Taking of the Dumaine Cottage that would have required the payment of compensation. 55) Maher presented a two-pronged basis for his contention that the application of the Vieux Carre Ordinance to the cottage constituted a taking of his property. First, he claimed that unless could build the apartment complex, he could not have pursued the most profitable use for his property. Second, he asserted that the city may not permissibly impose an affirmative maintenance duty on his property without a taking under the power of eminent domain. Each contention was dealt with in turn. 56) To survive a taking, the zoning regulation must as a threshold matter, satisfy the due process requirements that it purpose and means are reasonable. Even if it satisfies the due process requirement, a regulatory ordinance may nonetheless be a taking if it is unduly onerous so that it is confiscatory. The Supreme Court had held that every regulation in some sense a prohibition and that whether a given regulation treads over the line of proper execution and operates as a taking is a matter that is determined under all the circumstances in a specific case. Justice Oliver Holmes remarked: 57) Constitutional rights like others are a matter of degrees. For example, under the police, in its strict sense, a certain limit might be set for a building height without compensation, but to make that limit five feet would require compensation and taking by eminent domain. 58) The Supreme Court has repeatedly made clear that an ordinance within the police power does not become an unconstitutional taking simply because, as a result of its operation, the property does not achieve its maximum economic potential. In Goldblatt v. Hempstead, the ordinance was amended to forbid excavation below the water table. Goldblatt owned property dedicated to quarrying which had created a rather deep lake of several acres. The ordinance applied to Goldblatt substantially reduced the value of his property and its potential use. The Supreme Court upheld the validity of the measure as a reasonable regulation, stating, 59) The ordinance completely prohibited its beneficial use to which the property had previously been devoted. However, this characterization does not tell us whether or not the ordinance was unconstitutional. It is often repeated that every regulation necessarily speaks as a prohibition. If this ordinance was a valid exercise of the town's police powers, the fact that it deprived the property of its most beneficial use did not render it unconstitutional. 60) Using Mugler v. Kansas, the Supreme Court in Goldblatt observed that a properly enacted prohibition against the use of a property for the purposes adverse to the public well being is not controlled by the doctrine of eminent domain. Such regulation "is not, and consistently with the existence and safety of organized society, cannot be burdened with the condition that the State must compensate such individual owners for monetary losses they may sustain..." 61) The Court's attention has been focused on ordinances of other municipalities where the authority to prohibit the destruction of designated buildings is more limited. Refusals to allow demolition could be accompanied with tax credits, permission to transfer "building rights" to other owners, or by other economic incentives or palliative which could prevent demolition conditionally or temporarily. These measures may be considered fairer or wiser by a legislature which considers an historic preservation enactment. The decision here is whether or not an enactment that does not furnish alleviating devices is constitutional. 62) An ordinance forbidding the demolition of certain structures, if it serves a purpose in a reasonable fashion, does not seem on its face constitutionally different from ordinances regulating other elements of land ownership such as: building height, set back, or limitations on use. We concluded that the provision requiring a permit before demolition and the fact that in some cases a permit may not be obtained does not alone make the case for a taking. 63) The ordinance applied to Maher, the denial of the demolition permit and rebuild does nto operate as an example of eminent domain, a taking of Maher's property for government use. Nor did Maher demonstrate to the satisfaction of the district court that a taking had occurred because the ordinance diminished the property value as to leave Maher nothing. Particularly, Maher did not show that the sale of the property was impracticable, commercial rents could not provide a reasonable rate of return, or that the potential use of the property was foreclosed. To the extent that this was the underlying theory of Maher's claims, it failed for lack of proof. 64) Finally, the court considered Maher's objection to that portion or the ordinance requiring reasonable maintenance and repair of buildings in the French Quarter. By imposing an affirmative duty on property owners to prevent and correct defects, Maher claimed that the City Council overstepped permissible bounds of police power by requiring him to make expenditures that effectively taken his property. To accomplish this, Maher invoked eminent domain provisions and demanded just compensation. 65) Test set forth by the Supreme Court again informed the analysis. Once it has been determined that the purpose of of the Vieux Carre legislation was a proper one, upkeep of buildings appear reasonably necessary to accomplish the goals of the ordinance. As noted above.the responsibility for determining the wisdom of a legislation is not tasked to the judiciary. 66) The fact that an owner may incidentally re required to make out-of-pocket expenditures in order to remain in compliance with the ordinance does not per se render the ordinance a taking. In the interest of safety, it would seem that an ordinance might reasonably require buildings to have fire sprinklers or provide emergency exits and light. In matters of health, provisions for plumbing and sewage disposal might be demanded. Compliance could require owners to spend money. Yet, if the purpose was legitimate and means reasonably consistent with the objective, the ordinance could withstand a question of invalidity. 67) The decision of the court is a narrow one regarding the requirement to reasonably maintain the property is constitutional, the court does not conclude that every application of such an ordinance would be a constitutional assault. As the Supreme Court emphasized in Goldblatt, even generally constitutional regulations may become a taking in an isolated application if "unduly oppressive" to a property owner. It may be that, in some set of circumstances, the expense of maintenance under the Ordinance, if exacted by the city, would so unreasonable as to constitute a taking. 68) The burden of proof falls to the party alleging the taking. Based on the evidence presented in this case, the district court found that Maher had not sustained his burden of demonstrating that the upkeep provisions were inordinately burdensome. Conclusion 1) The Vieux Carre Ordinance was enacted to pursue the legitimate goal of preserving the "tout ensemble" of the historic French Quarter. The provisions of the Ordinance appeared to comprise permissible means adapted to secure that objective. Furthermore, the operation of the Vieux Carre Commission satisfied due process standards in that they provided a reasonable legislative and practical guidance to, and control over administrative decision making. 2) Once the district court concluded it was at liberty, under the principles of finality, to reach the merits of Maher's case, the court was not persuaded that the denial of a demolition permit was arbitrary. It did not find that they ordinance, applied to Maher, constituted a taking of the property for which compensation was indicated. These determinations, based on the proof offered there, are not clearly erroneous. 3) An order was entered affirming the judgement of the district court. 4) Affirmed