Amicus Curiae Brief — Colony Cove Properties, LLC, Petitioner v. City of Carson, California, et al.

No. 18-573

IN THE

Supreme Court of the United States

COLONY COVE PROPERTIES, LLC,

Petitioner,

v.

CITY OF CARSON AND CITY OF CARSON

MOBILEHOME PARK RENTAL REVIEW BOARD,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

MICHAEL M. BERGER

*Counsel of Record

MANATT, PHELPS &

PHILLIPS, LLP

11355 West Olympic Blvd.

Los Angeles, CA 90064

mmberger@manatt.com

Tel: (310) 312-4000

Fax: (310) 312-4224

JOHN C. EASTMAN

ANTHONY T. CASO

c/o Chapman University

Fowler School of Law

One University Avenue

Orange, CA 92866

Tel: (714) 628-2666

Fax: (916) 307-5164

Counsel for Amicus Curiae

Center for Constitutional Jurisprudence

i

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT................................. 2

ARGUMENT .......................................................... 3

I

THIS COURT’S FOUNDATIONAL

RULE FOR REGULATORY

TAKINGS IS ONE OF FLEXIBILITY ........ 3

II

THE CONSTITUTION REQUIRES

JUST COMPENSATION FOR ALL

TAKINGS ..................................................... 6

III

ASIDE FROM ITS CONFLICTS

WITH DECISIONS OF THIS COURT,

THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH DECISIONS OF

OTHER LOWER COURTS,

CREATING CONFUSION THAT

REQUIRES THIS COURT’S REVIEW

TO RESOLVE ............................................. 11

IV

CHANGING THE RULES WHILE

THE GAME IS IN PROGRESS

VIOLATES SACRED AMERICAN

TENETS...................................................... 16

CONCLUSION ...................................................... 17

ii

TABLE OF AUTHORITIES

Page(s)

CASES

614 Company v. Minneapolis

Community Dev. Agency,

547 N.W.2d 400 (Minn. App. 1996) .................. 13

United States ex rel. Accardi v.

Shaughnessy,

347 U.S. 260 (1954)........................................... 16

Agins v. City of Tiburon,

447 U.S. 255 (1980)........................................9, 15

Atchison, T. & S.F.R. Co. v. Wichita

Bd. of Trade,

412 U.S. 800 (1973)........................................... 17

Black v. Romano,

471 U.S. 606 (1985)........................................... 16

Boston Chamber of Commerce v.

Boston,

217 U.S. 189 (1910)........................................... 10

City of Monterey v. Del Monte Dunes,

526 U.S. 687 (1999)........................................... 10

Connecticut Bd. of Pardons v.

Dumschat,

452 U.S. 458 (1981)........................................... 16

Cumberland Farms, Inc. v. Town of

Groton,

247 Conn. 196 (1998) ........................................ 12

Dickman v. Commissioner,

465 U.S. 330 (1984)............................................. 9

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Dolan v. City of Tigard,

512 U.S. 374 (1994)........................................... 10

Eberle v. Dane County Bd. of

Adjustment,

227 Wis.2d 609 (1999) ...................................... 12

First English Evangelical Lutheran

Church v. County of Los Angeles,

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

Florida Rock Indus., Inc. v. United

States,

18 F.3d 1560 (Fed. Cir. 1994) ........................... 11

Hendler v. United States,

952 F.2d 1364 (Fed. Cir. 1991) ....................14, 15

Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc.,

452 U.S. 264 (1981)............................................. 9

Kaiser Aetna v. United States,

444 U.S. 164 (1979)........................................9, 17

Kelo v. City of New London,

125 S.Ct. 2655 (2005).......................................... 1

Keystone Assocs. v. Moerdler,

278 N.Y.S.2d 185 (N.Y. 1967)........................... 14

Keystone Bituminous Coal Assn. v.

DeBenedictis,

480 U.S. 470 (1987)........................................... 10

Kirby Forest Indus., Inc. v. U.S.,

467 U.S. 1 (1984)................................................. 9

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Koontz v. St. Johns River Water

Management Dist.,

133 S.Ct. 2586 (2013).......................................... 1

Lomarch Corp. v. Mayor of Englewood,

237 A.2d 881 (N.J. 1968) .................................. 13

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419 (1982)......................................... 3, 7

Lucas v. South Carolina Coastal

Council,

424 S.E.2d 484 (1992) ..................................12, 13

Lucas v. South Carolina Coastal

Council,

505 U.S. 1003 (1992)....................................10, 13

Motor Vehicle Manufacturers Assn. v.

State Farm Mutual Automobile

Insurance Co.,

463 U.S. 29 (1983)............................................. 17

Murr v. State of Wisconsin,

137 S.Ct. 1933 (2017).......................................... 1

Nolan v. Newtown Township,

49 Pa. D. & C. 4th 148 (2000)........................... 14

Nollan v. California Coastal Commn.,

483 U.S. 825 (1987)........................................... 10

Palazzolo v. Rhode Island,

533 U.S. 606 (2001)........................................4, 10

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Penn Central Transp. Co. v. City of

New York,

438 U.S. 104 (1978).................................... passim

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922)............................................. 4

Sackett v. Environmental Protection

Agency,

132 S.Ct. 1367 (2012).......................................... 1

San Diego Gas & Elec. Co. v. City of

San Diego,

450 U.S. 621 (1981)......................................... 7, 9

Schad v. Borough of Mount Ephraim,

452 U.S. 61 (1981)............................................... 9

Seawall Associates v. City of New

York,

544 N.Y.S.2d 542 (N.Y. 1989)......................13, 14

Sintra, Inc. v. City of Seattle,

829 P.2d 765 (Wash. 1992) ............................... 13

Skip Kirchdorfer, Inc. v. United States,

6 F.3d 1573 (Fed. Cir. 1993) ............................. 14

Suitum v. Tahoe Reg. Plan. Agency,

520 U.S. 725 (1997)........................................... 10

Tabb Lakes, Ltd. v. United States,

10 F.3d 796 (Fed. Cir. 1993) ........................11, 12

Tahoe-Sierra Preservation Council,

Inc. v. Tahoe Reg. Plan. Agency,

535 U.S. 302 (2002)......................................4, 5, 6

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. General Motors Corp.,

323 U.S. 373 (1945)............................................. 8

United States v. Riverside Bayview

Homes,

474 U.S. 121 (1985)............................................. 9

Vitek v. Jones,

445 U.S. 480 (1980)........................................... 16

Wheeler v. City of Pleasant Grove,

833 F.2d 267 (11th Cir. 1987) .......................... 11

Whitehead Oil Co. v. City of Lincoln,

515 N.W.2d 401 (Neb. 1994)........................12, 13

OTHER AUTHORITIES

Callies, David & Calvert G.

Chipchase, Moratoria and Musings

on Regulatory Takings, 25 U. Haw.

L. Rev. 279 (2003) ............................................. 16

Echeverria, John D., Is the Penn

Central Three Factor Test Ready

For History’s Dustbin? 52 Land Use

L. & Zon. Dig. 3 (2000) ....................................... 3

Epstein, Richard, Takings—Private

Property And The Power Of

Eminent Domain 7-18 (1985) ............................. 3

Merrill, Thomas, The Economics of

Public Use, 72 Corn. L. Rev. 61

(1986)................................................................... 4

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Michelman, Frank, Property, Utility

and Fairness: Comments on the

Ethical Foundations of Just

Compensation Law, 80 Harv. L.

Rev. 1165 (1967) ................................................. 2

Sax, Joseph, Takings and Police

Power, 74 Yale L.J. 36 (1964) ............................. 2

Scalia, Antonin, The Rule of Law As a

Law of Rules, 56 U. Chi. L. Rev.

1175 (1989) .......................................................... 4

1

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence

was established in 1999 as the public interest law

arm of the Claremont Institute, the mission of

which is to restore the principles of the American

Founding to their rightful and preeminent

authority in our national life. Those principles

include the idea, articulated in the Declaration of

Independence and codified in the Takings Clause of

the Fifth Amendment, that governments are

instituted to protect the inalienable rights of

citizens, including the right to acquire and use

property. In addition to providing counsel for

parties at all levels of state and federal courts, the

Center has represented parties or participated as

amicus curiae before this Court in several cases of

constitutional

significance

addressing

the

Constitution’s protection of property rights,

including Murr v. State of Wisconsin, 137 S.Ct.

1933 (2017); Koontz v. St. Johns River Water

Management Dist., 133 S.Ct. 2586 (2013); Sackett v.

Environmental Protection Agency, 132 S.Ct. 1367

(2012); and Kelo v. City of New London, 125 S.Ct.

2655 (2005).

1

Pursuant to the Court’s Rule 37.3, this amicus brief is

filed with the consent of the parties. Pursuant to Rule 37.6,

Amicus Curiae affirms that no counsel for any party authored

this brief, and no person other than Amicus Curiae, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief. Counsel for Amicus

Curiae gave each party ten days’ timely notice of the intent to

file this brief.

2

SUMMARY OF ARGUMENT

1. The opinion of the Ninth Circuit Court of

Appeals is destined to sow confusion in a field of

In

law already renowned for its confusion.2

reversing the jury’s unanimous finding that the

City of Carson and its Mobilehome Park Rental

Review Board (collectively, the City) had taken

Petitioner Colony Cove’s property by changing the

rules for rent increases after Colony Cove

purchased the property, the City violated clear

holdings of this Court and created conflict with

holdings of other federal Circuit Courts as well as

state appellate courts. The Ninth Circuit’s idea

that there is only one way to apply the general

precepts of Penn Central Transp. Co. v. City of New

York, 438 U.S. 104 (1978), flies in the face of this

Court’s consistent call for flexibility. Indeed, in

Penn Central itself, the Court said flatly that there

were no hard and fast rules and it would examine

each takings case on its own facts. (438 U.S. at

124.)

2.

Aside from disregarding this Court’s

holdings on flexible application of takings doctrine,

the Ninth Circuit ignored the Court’s consistent

rulings that “temporary” takings are governed by

2

Takings law has regularly been criticized by courts and

scholars alike. See, e.g., Joseph Sax, Takings and Police

Power, 74 Yale L.J. 36, 37 (1964) (“a welter of confusing and

apparently incompatible results”); Frank Michelman,

Property, Utility and Fairness: Comments on the Ethical

Foundations of Just Compensation Law, 80 Harv. L. Rev.

1165, 1170 (1967 (“liberally salted with paradox”).

3

the same standards as “permanent” takings, so

that any time the government takes private

property for public use, compensation will be paid.

What matters is that a taking has occurred, not the

manner in which the taking was accomplished or

the size of the taking (Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, ---, n. –

[1982] [taking was no “bigger than a bread box”], or

its duration (First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304

[1987] [compensation is due for the period of time it

took to invalidate the regulation or convince the

government to withdraw it]).

3. Finally, although the Ninth Circuit’s reach

may be vast, courts outside that realm (both state

and federal) have flexibly applied the Fifth

Amendment’s protection against uncompensated

takings regardless of the duration or manner of

taking. The Ninth Circuit’s contrary rule for much

of the western United States will cause only conflict

and confusion. It needs to be reversed.

ARGUMENT

I

THIS COURT’S FOUNDATIONAL RULE FOR

REGULATORY TAKINGS IS ONE OF

FLEXIBILITY.

Scholars on both ends of the political spectrum

have criticized the decision in Penn Central.3

3

See, e.g., Richard Epstein, Takings—Private Property

And The Power Of Eminent Domain 7-18 (1985); John D.

4

Fundamentally, they have challenged the Court’s

conclusion that regulatory takings should be judged

on a constantly shifting mélange of circumstances

analysis. Professor Merrill noted, for example, that

“a totality of the circumstances analysis masks

intellectual bankruptcy.” (Thomas Merrill, The

Economics of Public Use, 72 Corn. L. Rev. 61, 93

[1986].) Although harsh, that conclusion found

resonance in Justice Scalia’s conclusion that such

analysis renders an appellate court more like a

trial court, making equality of treatment

“impossible to achieve; predictability is destroyed;

judicial arbitrariness is facilitated [and] judicial

courage is impaired.” (Antonin Scalia, The Rule of

Law As a Law of Rules, 56 U. Chi. L. Rev. 1175,

1179 [1989].)

In light of such criticism, it would be

appropriate for the Court to reconsider Penn

Central. After all, that decision was rendered after

the Court had been absent from takings law for

half a century, having last visited the field in

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922).

Absent reconsideration, however, this

Court continues to view Penn Central as its

“polestar” in regulatory taking cases.

(See

Palazzolo v. Rhode Island, 533 U.S. 606, 633

[O’Connor, J., concurring] [2001]). Thus, until the

Court decides to devise a different test, the three

Penn Central factors — economic impact,

investment-backed expectations, and character of

the government action — will continue to hold

Echeverria, Is the Penn Central Three Factor Test Ready For

History’s Dustbin? 52 Land Use L. & Zon. Dig. 3 (2000).

5

sway. And, as the Court has repeatedly held, they

are to be flexibly applied. (Penn Central, 438 U.S.

at 124; Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Reg. Plan. Agency, 535 U.S. 302, 322 [2002]

[courts

must

weigh

“all

the

relevant

circumstances”]; id. at 326 [Court has “eschewed

any set formula”].)

Rather than considering all parts of this

tripartite formula, the Ninth Circuit focused only

on the “economic impact” factor and then applied it

in a hopelessly rigid way. As the Petition amply

demonstrates, the Ninth Circuit held that the only

way to apply this factor is to determine a before

and after value for the property. In this case, the

court concluded that because the “after” value of

the property had maintained its general value,

there could not have been any taking of the use of

Colony Cove’s money during the interim.

First, that analysis is wrong on its own

premise. Economic impact encompasses more than

a simple-minded before and after comparison. To

say that the property retained its general value

wholly ignores the lost value during the period of

governmental interference. That flies in the teeth

of First English, which held clearly that

compensation is due for the period of time during

which the regulation’s validity is litigated. (482

U.S. at 306-307.)

Second, the Ninth Circuit also ignores Colony

Cove’s “distinct, investment-backed expectations.”

As shown by the uncontradicted evidence, the

City’s regulations at the time Colony Cove

purchased the property allowed consideration of the

interest on an investment loan and that it was

6

reasonable for Colony Cove to believe that interest

would be considered when it sought a rent increase.

But it was not.

Third, the final Penn Central factor is the

character of the governmental action. Here, that

character took the form of changing the rules after

Colony Cove bought the property. As the jury

found — unanimously — that the City’s action took

property that it should have compensated for, the

evidence also supports a conclusion that the City’s

changing the rules was a bad faith action that

should have been accounted for. As the Court said

in Tahoe-Sierra, bad faith action by the

government would satisfy the Penn Central

formula. (438 U.S. at 333 [no bad faith finding

there because trial court expressly found good

faith].)

The Ninth Circuit simply disregarded the plain

meaning of the Penn Central factors.

II

THE CONSTITUTION REQUIRES JUST

COMPENSATION FOR ALL TAKINGS. THUS,

THE ISSUE IS NOT WHETHER PROPERTY WAS

TAKEN TEMPORARILY, BUT WHETHER IT

WAS TAKEN AT ALL.

The Ninth Circuit erred conceptually when it

decided to focus on the nature of the taking as

being “temporary” rather than “permanent.” That

utterly disregards this Court’s decision in First

English, which concluded simply and directly:

“temporary takings which, as here, deny a

landowner all use of his property, are not different

7

in kind from permanent takings, for which the

Constitution clearly requires compensation.” (482

U.S. at 318.) In First English, the Court took direct

aim at government regulatory action that took the

use of private property for any period of time.

That, held the Court, would require compensation

because “invalidation of the ordinance without

payment of fair value for the use of the property

during this period of time would be a

constitutionally insufficient remedy.” (482 U.S. at

322.) Compensation for the lost use of the property

while the regulation precluded use of the property

was held constitutionally mandatory. To label a

taking as permanent or temporary is irrelevant, as

the two are “not different in kind.” (First English,

482 U.S. at 318.)4

First English built on an odd dissenting opinion

(odd because five Justices agreed on its substance)

in San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621, 657 (1981) (Brennan, J., dissenting).5

As summarized there:

4

Five years before First English, the Court held that a

permanent physical invasion was a per se taking. (Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419,[1982].)

Five years’ more experience allowed the Court to conclude in

First English that all takings were analytically alike under

the Fifth Amendment.

5

Three other Justices signed Justice Brennan’s dissent. In

addition, although Justice Rehnquist concurred with four

other Justices that the case was not final, he then noted his

agreement with Justice Brennan's group of four on the merits.

(450 U.S. at 633 [Rehnquist, J., concurring].)

8

"The fact that a regulatory 'taking'

may be temporary, by virtue of the

government's power to rescind or

amend the regulation, does not make

it any less of a constitutional 'taking.'

Nothing in the Just Compensation

Clause suggests that 'takings' must be

permanent and irrevocable. Nor does

the temporary reversible quality of a

regulatory

'taking'

render

compensation for the time of the

'taking' any less obligatory.

This

Court more than once has recognized

that temporary reversible 'takings'

should be analyzed according to the

same

constitutional

framework

applied to permanent irreversible

'takings.' "

Decades earlier, this Court had noted the

unfairness that can occur "when the Government

does not take [a property owner's] entire interest,

but by the form of its proceeding chops it into bits,

of which it takes only what it wants, however few

or minute and leaves [the property owner] holding

the remainder, which may be altogether useless to

him . . . ." (United States v. General Motors Corp.,

323 U.S. 373, 382 [1945].) In General Motors, this

Court addressed the compensation due when the

government took temporary occupancy of property.

Carefully parsing the words of the Fifth

Amendment, the Court concluded first that

"property" included all interests an individual

might hold, and then decided that determining

what has been "taken" is based on "the deprivation

9

of the former owner rather than the accretion of a

right or interest to the sovereign . . . ." (323 U.S. at

378.) There, what was taken was an estate for

years, i.e., a temporary deprivation of the right of

use. So, here, what the City’s change of rules

accomplished was to take Colony Cove’s right to

use its property in an economically productive way.

The idea that use is a key right in the property

rights bundle is not restricted to takings law. As

this Court concluded in a tax case:

"We have little difficulty accepting the

theory that the use of valuable

property . . . is itself a legally

protectible property interest. Of the

aggregate rights associated with any

property interest, the right of use of

property is perhaps of the highest

order." (Dickman v. Commissioner,

465 U.S. 330, 336 [1984]; emphasis

added.)

In Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1,

14 (1984), the Court held that “curtailment” of the

“ability to derive income” from property may give

rise to a Fifth Amendment taking. Moreover, the

Court has repeatedly framed its test for a

regulatory taking in terms of the ability of property

owners to use their property.6

6

Penn Central, 438 U.S. at 124; Kaiser Aetna v. United

States, 444 U.S. 164, 174 n. 8 (1979); Agins v. City of Tiburon,

447 U.S. 255, 260 (1980); San Diego Gas, 450 U.S. at 653

(1981) (Brennan, J., dissenting); Schad v. Borough of Mount

10

Thus, the real question is whether a taking has

occurred, and that depends on the impact of the

governmental action on the ability of the owner to

make economically productive use of the property.

Justice Holmes put it quite directly for this Court

shortly after the turn of the last century, saying

"the question is, What has the owner lost?" (Boston

Chamber of Commerce v. Boston, 217 U.S. 189, 195

[1910].)

If, as this Court has repeatedly held, the

Constitution is concerned with the pragmatic

impact of government action on citizens, then the

mode of infliction is not determinative. If the

action is severe enough to be a taking, then it

remains a taking even if it lasts only for a finite

period of time.

Here, the Ninth Circuit confronted a City

regulation that took the use of Colony Cove’s

investment. What cannot be overlooked — but

which the Ninth Circuit sought to sidestep — was

that the City’s sudden rule change that prevented

Colony Cove from recouping the cost of its

investment was precisely the kind of temporary

Ephraim, 452 U.S. 61, 68 (1981); Hodel v. Virginia Surface

Mining & Reclamation Assn., Inc., 452 U.S. 264, 296 (1981);

United States v. Riverside Bayview Homes, 474 U.S. 121, 126

(1985); Keystone Bituminous Coal Assn. v. DeBenedictis, 480

U.S. 470, 485 (1987); Nollan v. California Coastal Commn.,

483 U.S. 825 (1987); Lucas, 505 U.S. at 1015; Dolan v. City of

Tigard, 512 U.S. 374, 385 (1994); Suitum v. Tahoe Reg. Plan.

Agency, 520 U.S. 725, 736, fn. 10 (1997); City of Monterey v.

Del Monte Dunes, 526 U.S. 687, 700 (1999); Palazzolo v.

Rhode Island, 533 U.S. 606, 627 (2001).

11

taking condemned by First English. See also Lucas

v. South Carolina Coastal Council, 505 U.S. 1003,

1015 (1992).

III

ASIDE FROM ITS CONFLICTS WITH

DECISIONS OF THIS COURT, THE NINTH

CIRCUIT’S DECISION CONFLICTS WITH

DECISIONS OF OTHER LOWER COURTS,

CREATING CONFUSION THAT REQUIRES

THIS COURT’S REVIEW TO RESOLVE.

The Petition for Certiorari aptly points to the

conflict between the Ninth Circuit and the Court of

Appeals for the Federal Circuit on the precise

interest issue at the heart of this case. Another

such case in the Eleventh Circuit held that "[i]n

the case of a temporary regulatory taking, the

landowner's loss takes the form of an injury to the

property's potential for producing income or an

expected profit." (Wheeler v. City of Pleasant Grove,

833 F.2d 267, 271 [11th Cir. 1987].) That is an apt

description of what happened here. But there is

more.

As the Federal Circuit Court of Appeals put it

more recently, "[n]othing in the language of the

Fifth Amendment compels a court to find a taking

only when the Government divests the total

ownership of the property; the Fifth Amendment

prohibits the uncompensated taking of private

property without reference to the owner's

remaining property interests."

(Florida Rock

Indus., Inc. v. United States, 18 F.3d 1560, 1568

[Fed. Cir. 1994].) The opinion below conflicts with

other lower court opinions as well. For example, in

12

Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 800

(Fed. Cir. 1993), the court acknowledged that,

under First English, "a taking, even for a day,

without compensation is prohibited by the

Constitution." Both that conclusion and the one

below cannot coexist.

Other courts agree with Tabb Lakes. For

example, in Cumberland Farms, Inc. v. Town of

Groton, 247 Conn. 196 (1998), the town denied a

variance.

Notwithstanding that the property

owners retained some use of the service station on

their property, the Connecticut Supreme Court

held that they could pursue compensation for a

temporary taking of their property during the time

that it took to litigate the invalidity of the town's

denial. The court expressly noted that the town's

argument was "contrary to the holding of First

English . . . ." (247 Conn. at 196.)

In Eberle v. Dane County Bd. of Adjustment,

227 Wis.2d 609 (1999), the county denied an access

permit. The Wisconsin Supreme Court held that

the owners could pursue compensation for a

temporary taking, notwithstanding that they

regained full use of their property when that court

eventually overturned the permit denial. The court

expressly concluded that the county's argument

against compensation was contrary to both First

English and Lucas. (227 Wis.2d at 633.)

Likewise, in Whitehead Oil Co. v. City of

Lincoln, 515 N.W.2d 401 (Neb. 1994), the Nebraska

Supreme Court rejected the city's argument that it

should not be liable for a temporary taking because

all use of the property had not been taken, by

13

referring to "the line of cases which recognizes

relief is possible from regulatory takings which do

not deprive the owner of all economic use of the

property." (515 N.W.2d at 407.) Finally, on

remand from this Court's decision in Lucas, the

South Carolina Supreme Court held that a

temporary taking had occurred as a matter of law.

(Lucas v. South Carolina Coastal Council, 424

S.E.2d 484 [1992].) This, in spite of the fact that

Mr. Lucas could still "picnic, swim, camp in a tent,

or live on the property in a movable trailer."

(Lucas, 505 U.S. at 1044 [Blackmun, J.,

dissenting].)7

In Lomarch Corp. v. Mayor of Englewood, 237

A.2d 881 (N.J. 1968), the court held that if

government wanted to freeze the use of property for

one year while deciding whether to acquire it, it

had to compensate the owner, equating the action

with the purchase of an option on the private

market. Similarly, in Seawall Associates v. City of

New York, 544 N.Y.S.2d 542 (N.Y. 1989), the court

held that a five-year moratorium on converting low

rent housing into anything else was a taking. The

court found the ordinance facially invalid as a

7

See also Sintra, Inc. v. City of Seattle, 829 P.2d 765, 774

(Wash. 1992) ("a temporary taking is compensable under the

Fifth Amendment, and Sintra need not prove that the

property remained unusable after the [regulation] was

invalidated.

[Citing First English.]"); 614 Company v.

Minneapolis Community Dev. Agency, 547 N.W.2d 400, 406407 (Minn. App. 1996) (reduced occupancy of building

sufficient to state claim for temporary taking where complaint

alleged that remaining uses were not economically viable).

14

drastic interference with the owners' "right to use

their properties as they see fit" (544 N.Y.S.2d at

549; emphasis, the Court's) and a taking of their

right to develop their properties (544 N.Y.S.2d at

550).8 In Nolan v. Newtown Township, 49 Pa. D. &

C. 4th 148 (2000), a landowner sued when the

township instituted an 18-month moratorium on

subdivisions while it contemplated changes in its

ordinance. The court held that he properly stated a

claim under First English and set the matter for

valuation.

Those cases involved taking the

"immediate" right to use.

That some takings may last only for temporary

periods of time is a factor that affects only the

amount of compensation due, not the existence of a

taking. See Skip Kirchdorfer, Inc. v. United States,

6 F.3d 1573, 1583 (Fed. Cir. 1993) ["The limited

duration of this taking is relevant to the issue of

what compensation is just, and not to the issue of

whether a taking has occurred."]; Hendler v. United

States, 952 F.2d 1364, 1376 (Fed. Cir. 1991) ["[T]he

fact that [the government's] action was finite went

to the determination of compensation rather than

to the question of whether a taking had occurred"].

In Hendler (in an opinion written by Judge

Plager, who had spent his formative years as a

property professor) the court explained why

See also Keystone Assocs. v. Moerdler, 278 N.Y.S.2d 185

(N.Y. 1967) (invalidating an uncompensated 180-day delay on

the right of the purchasers of the old Metropolitan Opera

House to demolish and redevelop the property).

8

15

permanent

and

temporary

jurisprudentially the same:

takings

"Part of the difficulty here is the

confusion that arises in the cases and

commentaries over the use of the term

'temporary taking.' The argument in

Agins, which was finally laid to rest in

First Lutheran Church, was that a

regulatory taking, unlike a physical

taking, is by its nature 'temporary.'

This is because the government, upon

being told the regulation was overly

intrusive and therefore a taking (by

whatever test), could rescind or amend

the regulation.

"It is equally true, however, that

the government when it has taken

property by physical occupation could

subsequently decide to return the

property to its owner, or otherwise

release its interest in the property.

Yet no one would argue that that

would

somehow

absolve

the

government of its liability for a taking

during the time the property was

denied to the property owner. All

takings are 'temporary,' in the sense

that the government can always

change its mind at a later time, and

this is true whether the property

interest taken is a possessory estate

for years or a fee simple acquired

through

condemnation,

or

an

are

16

easement of use by virtue of a

regulation." (Hendler v. United States,

952 F.2d 1364, 1376 [Fed. Cir. 1991].)

Cases from appellate courts throughout the

country are contrary to the Ninth Circuit’s decision

below. This Court’s attention is sorely needed to

resolve the conflicts.

IV

CHANGING THE RULES WHILE THE GAME IS

IN PROGRESS VIOLATES SACRED AMERICAN

TENETS.

A prime American precept is that we don’t

change the rules while the game is in progress.

There are good reasons for that, with their origins

in the idea that people should be able to rest secure

that what is theirs when they go to sleep will still

be theirs when they wake up. As Professor Callies

put it, “The point is simple: the Constitution, not

ever-evolving policy considerations, should inform

the Court’s opinions.”9

The Court has referred to this as the “norm of

regularity in governmental conduct,” citing

numerous circumstances in which it has occurred.

(Black v. Romano, 471 U.S. 606, 622 [1985]

[Marshall, J., concurring] [citing United States ex

rel. Accardi v. Shaughnessy, 347 U.S. 260 [1954]

[Government bound by its own regulations]; Vitek

v. Jones, 445 U.S. 480, 489 [1980] [due process

9

David Callies & Calvert G. Chipchase, Moratoria and

Musings on Regulatory Takings, 25 U. Haw. L. Rev. 279, 282

(2003).

17

interest created by “ ‘objective expectation, firmly

fixed in state law’ ”]; Connecticut Bd. of Pardons v.

Dumschat, 452 U.S. 458, 467 [1981] [Brennan, J.,

concurring] [liberty interests arise from “statute,

regulation, administrative practice, contractual

arrangement or other mutual understanding [that

establish] that particularized standards or criteria

guide the State’s decisionmakers”]; Motor Vehicle

Manufacturers Assn. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29, 42 [1983]

[reasoned explanation required for agency

revocation of validly promulgated rule]; Atchison,

T. & S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S.

800, 807-808 [1973] [“There is . . . at least a

presumption that policies will be carried out best if

the settled rule is adhered to”]).

In short, we don’t change the rules while the

game is in progress. If change results in a taking of

property, then compensation must be paid. (Kaiser

Aetna v. United States 444 U.S. 164, 180 [1979].)

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,

MICHAEL M. BERGER

*Counsel of Record

MANATT, PHELPS &

PHILLIPS, LLP

11355 West Olympic Blvd.

Los Angeles, CA 90064

Tel: (310) 312-4000

Fax: (310) 312-4224

JOHN C. EASTMAN

ANTHONY T. CASO

c/o Chapman University

Fowler School of Law

One University Avenue

Orange, CA 92866

Tel: (714) 628-2666

Fax: (916) 307-5164

Counsel for Amicus Curiae

Center for Constitutional Jurisprudence