Fred B. Shelton Iii, and John Paul Jones, Cross v. City of College Station, Cross-Appellants

ALVIN B. RUBIN and ALBERT TATE, Circuit Judges,

with whom POLITZ, JOHNSON and JERRE S. WILLIAMS, join dissenting:

We dissent from the majority’s opinion because it fundamentally misconstrues both the character of the Zoning Board’s action, and our role in reviewing such actions for compliance with fundamental constitutional guarantees. By a stroke of the judicial pen, zoning boards of adjustment have become legislatures and the action of every state or municipal agency, however petty, is now entitled to the same deference as the deliberate enactments of the highest state legislature.

The…