Amicus Curiae Brief — Dartmond Cherk, et al., Petitioners v. Marin County, California

Supreme Court briefJul 12, 2019

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No. 18-1538

In the

Supreme Court of the United States

DARTMOND CHERK, et al.,

Petitioners,

MARIN COUNTY, CALIFORNIA,

Respondent.

On Petition for Writ of Certiorari

to the California Court of Appeal

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

Counsel of Record

ANTHONY T. CASO

Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

jeastman@chapman.edu

Counsel for Amicus Curiae

QUESTIONS PRESENTED

Marin County imposed a $39,960 “affordable

housing” fee as a condition of approving a permit to

divide a residential lot, absent any finding that the fee

was needed to mitigate adverse impacts of the proposed development.

Alternatively, the property

owner might have dedicated various non-possessory

interests in the property, other land, or low-cost housing units off-site to satisfy the condition. The court

below held that neither the fee nor its alternatives

were subject to the unconstitutional-conditions doctrine, which requires land-use permit conditions to

bear an “essential nexus” and “rough proportionality”

to adverse public impacts of the proposed development. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825,

837 (1987); Dolan v. City of Tigard, 512 U.S. 374, 391

(1994); Koontz v. St. Johns River Water Mgmt. Dist.,

570 U.S. 595, 604 (2013).

The questions presented are:

1. Whether permit conditions are exempt from review under the unconstitutional-conditions doctrine

when their intended purpose is not to mitigate adverse impacts of a proposed development but to provide unrelated public benefits?

2. Whether the unconstitutional-conditions doctrine applies to such permit conditions when imposed

legislatively, as the high courts of Texas, Ohio, Maine,

Illinois, New York and Washington and the First Circuit Court of Appeals hold; or whether that scrutiny is

limited to administratively imposed conditions, as the

high courts of Alabama, Alaska, Arizona, California,

Colorado, and Maryland and the Tenth Circuit Court

of Appeals hold?

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

REASONS FOR GRANTING REVIEW .....................3

The Housing Affordability Crisis in California

was Created and is Sustained through

Government Land Use Policies. ..........................3

II.

California’s Antipathy Toward Individual Rights

in Property Is Contrary to the Concept of

Individual Liberty Enshrined in the

Constitution. ........................................................4

III. The Original Understanding of the Takings

Clause Demonstrates that it was meant to

Protect against Both Executive and Legislative

Encroachments on Individual Liberty. ...............6

IV. Constitutionally Protected Rights in Property

Preclude Local Governments from Leveraging

their Permit Power to Exact Land and Money

for General Public Needs. .................................. 12

CONCLUSION .......................................................... 13

iii

TABLE OF AUTHORITIES

Cases

Agins v. City of Tiburon,

24 Cal. 3d 266 (1979) ...............................................5

Associated Home Builders v. City of Walnut Creek,

4 Cal. 3d 633 (1971) .................................................4

Ayres v. City Council of City of Los Angeles,

34 Cal. 2d 31 (1949) .................................................4

California Bldg. Ind. Ass’n v. City of San Jose,

136 S.Ct. 928 (2016)........................................... 1, 13

Dolan v. City of Tigard,

512 U.S. 374 (1994).................................................. i

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998)..................................................5

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County,

482 U.S. 304 (1987)..................................................5

Koontz v. St. Johns River Water Mgmnt. Dist.,

570 U.S. 595 (2013).............................................. i, 1

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987).............................................. i, 6

Pennsylvania Coal Company v. Mahon,

260 U.S. 393 (1922)..................................................6

Sackett v. Environmental Protection Agency,

566 U.S. 120 (2012)..................................................1

Stop the Beach Renourishment v. Florida

Department of Environmental Protection,

560 U.S. 702 (2010)................................................1

Statutes and Constitutional Provisions

Declaration of Independence ¶2, 1 Stat. 1 (1776) .... 12

U.S. Const., Amend. V....................................... passim

Other Authorities

Blackstone, William, Commentaries on the Laws of

England (1765) (Univ. of Chicago Press 1979) .......8

Constitution of Vermont, July 8, 1777, Preamble

reprinted in VI Francis N. Thorpe, The Federal

and State Constitutions (William S. Hein & Co.)

(1909)........................................................................9

Ely, Jr., James W., THE GUARDIAN OF EVERY OTHER

RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY

RIGHTS (Oxford Univ. Press 3rd ed. 2008) ........ 7, 11

Gold, Andrew S., Regulatory Takings and Original

Intent: The Direct, Physical Takings Thesis Goes

Too Far, 49 Am. Univ. L. Rev. 181 (1999) ........ 9, 11

Legislative Analyst's Office, California’s High

Housing Costs, Causes and Consequences, March

2015 ..........................................................................3

Locke, John, Second Treatise of Government (1681),

reprinted in Political Writings (David Wootton, ed.,

Hackett Publishing Company: 2003) ......................8

Magna Carta reprinted in John S. McKechnie,

Magna Charta, A Commentary on the Great

Charter of King John (Lawbook Exchange, 2nd Ed.

2000) .........................................................................7

Massachusetts Constitution, (1880) reprinted in

Francis N. Thorpe, The Federal and State

Constitutions (1909) .............................................. 10

Rutland, Robert, THE BIRTH OF THE BILL OF RIGHTS,

(Northeastern Univ. Press 1991) .......................... 12

THE BILL OF RIGHTS, ORIGINAL MEANING AND

CURRENT UNDERSTANDING, (Eugene W. Hitchcock,

ed.) (Univ. Press of Virginia 1991) ........................ 12

Treanor, William Michael, The Original

Understanding of the Takings Clause and the

Political Process, 95 Colum. L. Rev. 782 (1995) ... 11

Treanor, William, The Origins and Original

Significance of the Just Compensation Clause of

the Fifth Amendment, 94 Yale L.J. 694 (1985) ....10,

Rules

Sup. Ct. Rule 37.2(a) ...................................................1

Sup. Ct. Rule 37.6........................................................1

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life. The Center has previously appeared before this Court in several cases addressing Fifth Amendment issues similar to those

raised in this case, including Koontz v. St. Johns River

Water Management District, 570 U.S. 595 (2013);

Sackett v. Environmental Protection Agency, 566 U.S.

120 (2012); and Stop the Beach Renourishment v. Florida Department of Environmental Protection, 560

U.S. 702 (2010).

SUMMARY OF ARGUMENT

Like California Building Industry Association v.

City of San Jose, ‘[t]his case implicates an important

an unsettled issue under the Takings Clause.” California Building Industry Ass’n v. City of San Jose, 136

S.Ct. 928 (2016) (Thomas, J., concurring in the denial

of certiorari) (CBIA). Unlike CBIA, however, this case

presents a ripe, as-applied challenge to the exaction

scheme. There is no question that the condition imposed is not intended to resolve any public harm created by the application to split one lot into two that is

at issue in this case. The fee at issue was enacted pursuant to the county’s police power to resolve a public

1 Pursuant to Rule 37.2(a), all parties were notified of and have

consented to the filing of this brief. In accordance with Rule 37.6,

counsel affirms that no counsel for any party authored this brief

in whole or in part and that no person or entity other than amici

made a monetary contribution to fund the preparation and submission of this brief.

need without resort to the politically troublesome

problem of diverting tax revenue from more popular

uses.

Moreover, the problem that the county claims to

be addressing is one of its own creation. Indeed, exactions that raise the cost of developing new housing

units inevitably result in higher rather than lower

housing costs and help to further restrict the supply

of affordable housing, thereby exacerbating the problem. California cities and counties may be free to enact legislation that results in the lack of affordable

housing. They may not, however, demand exactions

of land, houses, or money from property owners as a

condition of obtaining a development permit when

that exaction is unrelated to any impact caused by the

development. Such a condition is an unconstitutional

condition and it does not matter if the condition is imposed by a regulator or a legislative body.

This case is an example of California’s apparent

long-standing and official policy of antipathy toward

individual rights in property. This Court has reviewed (and reversed) California state court decisions

that purported to withdraw the protections of the Takings Clause from California property owners and that

gave the state the power to confiscate property without compensation as a condition for a permit approval.

These state policies are antithetical to the notion of

individual liberty enshrined in the federal constitution. This Court is called on once again to reject California’s view that the state can demand property in

exchange for a development permit as a simple exercise of its police power.

REASONS FOR GRANTING REVIEW

The Housing Affordability Crisis in California was Created and is Sustained through

Government Land Use Policies.

There is no doubt that California has a housing

affordability problem. There is also no doubt that it is

a problem of local government’s own making. Three

months before the California Supreme Court issued

its decision in California Building Industry Association v. City of San Jose, 61 Cal.4th 435 (2015), the California Legislative Analyst’s Office issued a comprehensive report entitled “California’s High Housing

Costs, Causes and Consequences.” The report confirms that the cost of housing in California – especially

in the urban coastal areas like West Hollywood – far

exceeds the cost of housing elsewhere in the nation.

The most striking finding in the Legislative Analyst’s report is the cause of this disparity in housing

costs. High building costs due to regulation and development fees, though significant when compared to

such costs elsewhere, are only a small part of the problem. Id. at 14. The national average for government

fees on development is about $6,000 per home compared to more than $22,000 per home in California.

Id. The real culprit, however, is that “far less housing

has been built in California’s coastal metro areas than

people demand.” Id. at 10. This lack of housing supply is a direct result of growth controls, zoning regulations, and general opposition to new development in

the coastal metropolitan areas like Marin County. Id.

at 15-17.

Rather than addressing the policies that created

this crisis of housing affordability, Marin County is ordering property owners who want to divide their lots

to either pay a fee to the city or record a deed restriction reserving some of the property for sale at below market rates. In the case of the Cherks, this deed

restriction would affect one-half of the property they

own.

New housing does not contribute to the problem,

it contributes to the solution. This Court should grant

review to rule that property exactions, even those imposed legislatively, must be related to a harm created

by the property owner.

II. California’s Antipathy Toward Individual

Rights in Property Is Contrary to the Concept of Individual Liberty Enshrined in the

Constitution.

California has a long-standing antipathy toward

the notion of individual rights in private property.

Since at least 1949 the state has clung to the view that

the “police power” allows it to demand real estate in

exchange for a building permit. See Ayres v. City

Council of City of Los Angeles, 34 Cal. 2d 31, 42 (1949).

The California Supreme Court reasoned in Ayers that

there was no taking involved because the developer

sought the “advantages” of a subdivision and the state

had the sovereign power to compel the property owner

to “yield to the good of the community” in exchange for

those advantages. Id.

The California Supreme Court reaffirmed the

holding of Ayers in Associated Home Builders v. City

of Walnut Creek, 4 Cal. 3d 633 (1971). There the court

ruled that local government could demand that home

builders give up a portion of their property for recreational facilities even if the development did not create

a need for those facilities. The court ruled that the

exaction “can be justified on the basis of a general public need for recreational facilities caused by present

and future subdivisions.” Id. at 638. The court based

its ruling on the finding that “[u]ndeveloped land in a

community is a limited resource which is difficult to

conserve in a period of increased population pressure.”

Id. at 641. In the view of California, this limited resource belongs to the government rather than the

property owner.

In later cases, the California Supreme Court

sought to further protect cities from the demands of

the compensation requirement of the Takings Clause.

Even where the exaction is unconstitutional, the California court ruled that no compensation was available. Agins v. City of Tiburon, 24 Cal. 3d 266, 272

(1979), aff’d, 447 U.S. 255 (1980), abrogated by First

English Evangelical Lutheran Church of Glendale v.

Los Angeles County, 482 U.S. 304 (1987).

This case continues this California tradition of resistance to the constitutionally guaranteed individual

liberties of ownership and use of property. The issue

is not the wisdom of the city policy. Cf. Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy,

J., concurring in the judgment and dissenting in part).

It is instead whether the city can, by legislation, demand specific property as a condition of permit approval where that condition has no relation to any

public harm created by the development.

The lower court ruled that the county’s exaction

is not subject to constitutional scrutiny because it was

imposed legislatively, rather than as the result of an

administrative process. In California, individuals are

first forced to apply to the local government for permission to exercise their constitutionally guaranteed

liberties, and then told that permission must be purchased with land or money, despite the fact that in

Nollan, this Court ruled that a permit condition that

does not serve the same purpose as a development ban

is ‘“an out-and-out plan of extortion.’” Nollan, 483

U.S. at 837.

Such a result is at odds with the Constitution.

The Takings Clause prohibits uncompensated takings

by government, regardless of which branch of government does the taking. Stop the Beach Renourishment,

Inc., 560 U.S. at 715. Leveraging its permit authority

to shift the cost of unrelated public needs to select

property owners is not a constitutionally permissible

alternative for the city. Pennsylvania Coal Company

v. Mahon, 260 U.S. 393, 416 (1922) (“[A] strong public

desire to improve the public condition is not enough to

warrant achieving the desire by a shorter cut than the

constitutional way of paying for the change.”). The police power is not all encompassing. Indeed, the liberties enshrined in the Bill of Rights are designed precisely to limit the exercise of the power of government.

III. The Original Understanding of the Takings

Clause Demonstrates that it was meant to

Protect against Both Executive and Legislative Encroachments on Individual Liberty.

The Fifth Amendment did not arise in a vacuum.

Rather, it represents a culmination of hundreds of

years of legal history and precedent going back to at

least the signing of the Magna Carta in 1215. As

James Ely has noted, “Colonial appreciation of prop-

erty rights was strongly shaped by the English constitutional tradition. Americans associated property

rights with the time-honored guarantees of Magna

Carta (1215).” James W. Ely, Jr., THE GUARDIAN OF

EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF

PROPERTY RIGHTS 13 (Oxford Univ. Press, 3rd ed.

2008).

One of those guarantees is the principle that

property shall not be taken by government without

just compensation paid to the owner. Three separate

clauses affirm that government may only take property from its citizens by obtaining their consent or

providing compensation.

Translated into English from the original Latin,

Chapter 28 directly addresses the requirement of just

compensation for the taking of property, providing:

No constable or bailiff of ours shall take corn

or other provisions from any one without immediately tendering money therefor, unless

he can have postponement thereof by permission of the seller.

Magna Carta, Chapter 28 reprinted in John S.

McKechnie, Magna Charta, A Commentary on the

Great Charter of King John (Lawbook Exchange, 2nd

Ed. 2000) at 329

Drawing upon the declarations of the Magna

Carta, English law evolved to the point that “[b]y the

seventeenth century, Parliament regularly provided

compensation when property was taken.” Ely at 23.

Thus, by the mid-eighteenth century, William Blackstone was able to declare: “So great moreover is the

regard of the law for private property, that it will not

authorize the least violation of it.” William Blackstone, Commentaries on the Laws of England (1765)

1:135 (Univ. of Chicago Press 1979) at 135.

This protection of individual liberty applied to

both legislative and executive encroachments:

In this and similar cases the legislature alone

can, and indeed frequently does, interpose,

and compel the individual to acquiesce. But

how does it interpose and compel? Not by

absolutely stripping the subject of his property in an arbitrary manner; but by giving

him a full indemnification and equivalent for

the injury thereby sustained. … All that the

legislature does is to oblige the owner to alienate his possessions for a reasonable price;

and even this is an exertion of power, which

the legislature indulges with caution, and

which nothing but the legislature can perform.

Id. (emphasis added).

This development is consistent with the English

liberal understanding of a natural right to property.

As John Locke articulated: “[T]he preservation of

property being the end of government … it is a mistake to think that the supreme or legislative power …

can do what it will, and dispose of the estates of the

subject arbitrarily, or take any part of them at pleasure.” John Locke, Second Treatise of Government

(1681), reprinted in Political Writings (David Wootton, ed., Hackett Publishing Company: 2003) at 332333 .

In America, the transformation of just compensation from an unenumerated but understood natural

right protected under English common law to specific,

positive law may be understood as a consequence of

increasing distrust of the ability and will of the legislatures to protect property rights.

For example, owing to historical circumstances,

Vermont began as part of New Hampshire, but was

later transferred to New York. Andrew S. Gold, Regulatory Takings and Original Intent: The Direct, Physical Takings Thesis Goes Too Far, 49 Am. Univ. L.

Rev. 181, 211 (1999). Following this transfer, many

landowners who were granted land by New Hampshire found their claims disregarded by the governor

of New York, with the support of the legislature. Id.

The people of Vermont explicitly cited the actions

of the legislature of New York in dispossessing citizens of their land as a central grievance when Vermont declared independence from New York early in

the Revolution. Constitution of Vermont, July 8,

1777, Preamble reprinted in VI Francis N. Thorpe,

The Federal and State Constitutions (William S. Hein

& Co.) (1909) at 3738 (“[W]hereas, the legislature of

New-York, ever have, and still continue to disown the

good people of this State, in their landed property,

which will appear in the complaints hereafter inserted

…”). In order to protect against future encroachments, the people of Vermont proposed a Constitution

that asserted “private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man’s property is

taken for the use of the public, the owner ought to receive an equivalent in money.” Vermont Constitution,

Ch. I, § II, supra at 3740. Concerns about the actions

of the legislature were part and parcel of the first state

constitution to explicitly require just compensation.

See William Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth

Amendment, 94 Yale L.J. 694, 703 (1985) (“The development of Vermont political ideas about property is

clearly linked to the actions of the New York legislature.”).

The Massachusetts Constitution also recognized

that compensation was required when the legislature

approved the taking of property:

[N]o part of the property of any individual

can, with justice, be taken from him, or applied to public uses, without his own consent,

or that of the representative body of the people. . . . And whenever the public exigencies

require that the property of any individual

should be appropriated to public uses, he

shall receive a reasonable compensation

therefor.

Massachusetts Constitution, Part the First, Art. X,

(1880) reprinted in III Francis N. Thorpe, supra, at

1891.

The Massachusetts Constitution is significant because it makes clear that compensation is required in

addition to the consent of the legislature, not in lieu of

it. This is not a historical accident. The Massachusetts Constitution itself arose at a time when tensions

between rural western parts of the state and eastern

authorities reached “near rebellion” due to concerns

over the development of debtor-creditor laws.

Treanor, 94 Yale L.J. at 706 n. 65 (citing S. Patterson,

Political Parties in Revolutionary Massachusetts 136137 (1973)). These tensions were so intense that an

earlier proposed constitution for Massachusetts was

rejected in part for its insufficient protections of private property. See Treanor, 94 Yale L.J. at 706; Gold,

49 Am. Univ. L. Rev. at 211-213.

Conduct of state legislatures during the Revolutionary War period also sowed distrust in the ability

of legislatures to protect property rights. See Treanor,

94 Yale L.J. at 704-705. During the war, there were

“wide-spread depredations of property held by both

Loyalists and creditors,” Ely at 26. “Sweeping confiscation and sequestration measures,” Ely at 41, resulted in the seizure of property belonging to British

loyalists and merchants valued at one-tenth of the

value of all real property in the country. William Michael Treanor, The Original Understanding of the

Takings Clause and the Political Process, 95 Colum.

L. Rev. 782, 790 (1995).

The natural right to be free from government-initiated extortions or expropriations of property without just compensation was generally recognized and

protected by English common law going back to the

Magna Carta. This understanding was incorporated

in the Takings Clause of the United States Constitution. Against this backdrop of concern for legislative

disregard for property rights, it would be ahistorical

to assert, as California has, that the legislature is

properly held to a lower standard when it takes property than an administrative body. A taking is a taking, regardless of whether it is through specific determination or legislative mandate.

IV. Constitutionally Protected Rights in Property Preclude Local Governments from Leveraging their Permit Power to Exact Land

and Money for General Public Needs.

Although there was little mention of a fear of federal confiscation of property during the ratification debates, James Madison included the Takings Clause in

the proposed Bill of Rights, based on the protections

included in the Northwest Ordinance. See THE BILL

OF RIGHTS, ORIGINAL MEANING AND CURRENT UNDERSTANDING, (Eugene W. Hitchcock, ed.) (Univ. Press of

Virginia 1991) at 233. The Northwest Ordinance of

1787 included the first federal level analog of the Bill

of Rights and it expressly protected property from government confiscation. Robert Rutland, THE BIRTH OF

THE BILL OF RIGHTS, (Northeastern Univ. Press 1991)

at 102. The drafters of the individual rights provisions of the Northwest Ordinance took their cue from

the 1780 Massachusetts Constitution. Id., at 104.

One of the core principles of the American Founding is that individual rights are not granted by majorities or governments but are inalienable. Declaration

of Independence ¶2, 1 Stat.1 (1776). The Fifth Amendment seeks to capture a part of this principle in its

announcement that “private property [shall not] be

taken for public use, without just compensation.” U.S.

Const. Amend. V. The importance of the individual

right in property that is protected in this clause is evident in the writings on which the Founders based the

notion of liberty that is enshrined in the Constitution.

There is nothing in the history or original understanding of the Takings Clause that exempts legislatures from the general command that government

may not take property for public use without just compensation. Precisely the opposite is true. The founding generation was just as concerned about legislatively enacted confiscations of property as confiscation

by executive officials. The city and the court below

concede that the exaction at issue here is unrelated to

any need or detriment caused by the development.

This is the case the Court needs to resolve the conflicts

in lower court rulings on legislative exactions.

CONCLUSION

The Court should grant review in this case to resolve the important and unsettled issue under the

Takings Clause” the Justice Thomas outlined in his

opinion concurring in the denial of certiorari in California Building Industry Association, supra.

July 2019

Respectfully submitted,