Petition for Writ of Certiorari — Francis A. Bottini, Jr., et al., Petitioners v. City of San Diego, California, et al.

No. ______

In the

Supreme Court of the United States

__________________

NINA M. BOTTINI, FRANCIS A. BOTTINI, JR., AND

BERNATE TICINO TRUST DATED MARCH 2, 2009,

TRUST “3”,

Petitioners,

v.

CITY OF SAN DIEGO, A MUNICIPAL CORPORATION, AND

CITY COUNCIL OF THE CITY OF SAN DIEGO,

Respondents.

__________________

On Petition for Writ of Certiorari to the

Court of Appeal of California

Fourth Appellate District, Division One

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

ALBERT Y. CHANG

YURY A. KOLESNIKOV

BOTTINI & BOTTINI, INC.

7817 Ivanhoe Avenue

Suite 102

La Jolla, California 92037

(858) 914-2001

RICHARD A. EPSTEIN

Counsel of Record

800 North Michigan Avenue

# 3502

Chicago, Illinois 60611

(312) 702-9563

richard.epstein@nyu.edu

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

In First English Evangelical Lutheran Church v.

County of Los Angeles, this Court held that the Takings

Clause requires the government to compensate a

landowner for the entire period when a regulatory

taking effectively denied him “all use of his property.”

See 482 U.S. 304, 318 (1987). And in Penn Central

Transportation Co. v. City of New York, the Court

formulated a three-prong, ad hoc test for regulatory

takings that requires consideration of whether the

landowner had “reasonable and distinct investmentbacked expectations” to justify compensation. See 438

U.S. 104 (1978).

Here, the landowners have endured an eight-year

ordeal to apply for a permit from a city government to

build a home on a lot zoned solely for single-family

housing. After concluding that the city’s denial of the

building permit was unlawful, the California trial and

appellate courts refused to find a taking

notwithstanding the clear mandate in First English

and Penn Central. And the California Supreme Court

rescinded its initial grant of review. The questions

presented in this petition are two-fold:

1. Should the investment-backed-expectations test

of Penn Central be construed to totally bar recovery

whenever the purchaser of a single-family lot is unable

to learn, at the time of purchase, the exact path of

allowable development under local law?

2. Should the “normal delay” exception to the total

temporary takings rule of First English be construed so

broadly as to allow for indefinite and calculated delays

to bar recovery of any compensation?

ii

PARTIES TO THE PROCEEDINGS

All parties to the proceedings are listed in the

caption.

Petitioners are a married couple, Francis A. Bottini,

Jr. and Nina M. Bottini, and their family trust,

Bernate Ticino Trust Dated March 2, 2009, Trust “3”,

established to hold the title to the single-family lot at

issue.

Respondents are the City of San Diego, a municipal

corporation, and the City Council of the City of San

Diego.

STATEMENT OF PROCEEDINGS

The proceedings in the California state courts are

listed below:

! Francis A. Bottini, Jr., et al. v. City of San Diego,

et al., Case No. 37-2013-00075491-CU-TT-CTL

(Cal. Super. Ct. Cnty. of San Diego);

! Francis A. Bottini, Jr., et al. v. City of San Diego,

et al., Case No. D067510 (Cal. Ct. App. 4th

Dist.);

! Francis A. Bottini, Jr., et al. v. City of San Diego,

et al., Case No. D071670 (Cal. Ct. App. 4th

Dist.); and

! Francis A. Bottini, Jr., et al. v. City of San Diego,

et al., Case No. 8252217 (Cal.).

iii

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDINGS. . . . . . . . . . . . . ii

STATEMENT OF PROCEEDINGS . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . vi

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3

I.

The Bottinis’ Plight — to Build a Home. . . . . 3

II.

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The Bottinis’ 2011 Purchase of the Lot —

and the Dilapidated Cottage . . . . . . . . . . . 7

B. The City’s Refusal to Designate the

Cottage as Historical . . . . . . . . . . . . . . . . . 7

C. The City’s Declaration of the Cottage as a

Public Nuisance and Issuance of a

Demolition Order . . . . . . . . . . . . . . . . . . . . 8

III.

The City Council’s Unlawful Conduct

Effectively Denying the Bottinis a Permit —

and All Use of the Property. . . . . . . . . . . . . . . 9

iv

IV.

Proceedings in California Courts . . . . . . . . . 12

A. The Superior Court of California denied

any compensation to the Bottinis even

after finding that the City acted

unlawfully. . . . . . . . . . . . . . . . . . . . . . . . . 12

B. The Court of Appeal of California

misapplied Penn Central and rejected the

Bottinis’ takings claim . . . . . . . . . . . . . . . 13

C. After granting review, the Supreme Court

of California dismissed the review as

improvidently granted . . . . . . . . . . . . . . . 15

REASONS FOR GRANTING THE PETITION . . . 16

I.

The California Courts Have So Gutted

the Penn Central Test That It No Longer

Places Any Constitutional Restraint on the

Denials and Delays of Building Permits in

California . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Penn Central sets forth a balancing test,

including consideration of investmentbacked expectations . . . . . . . . . . . . . . . . . 16

B. The California Court grievously

misinterpreted accepted law on the status

of investment-backed expectations . . . . . 18

C. The California Court of Appeal grievously

exaggerated the City’s environmental

interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

v

II.

The California Court of Appeal Misread the

“Normal Delay” Exception of First English by

Allowing It to Deny Any Compensation in All

Claims for Total Temporary Takings . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

APPENDIX

Appendix A Order in the Supreme Court of

California

(April 10, 2019) . . . . . . . . . . . . . . . App. 1

Appendix B Opinion in the Court of Appeal, in the

Court of Appeal of the State of

California, Fourth Appellate District,

Division One

(September 18, 2018) . . . . . . . . . . App. 3

Appendix C Judgment in the Superior Court of the

State of California for the County of

San Diego, Central Division

(December 23, 2016) . . . . . . . . . . App. 59

Appendix D U.S. Const. Amend. 5 . . . . . . . . . App. 89

Cal. Const., Art. I, § 19 . . . . . . . . App. 89

Appendix E Excerpts of Respondents’ Brief and

Cross-Appellants’ Opening Brief in the

Court of Appeal of the State of

California, Fourth Appellate District,

Division One

(November 3, 2017). . . . . . . . . . . App. 92

vi

TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon,

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

Armstrong v. United States,

364 U.S. 40 (1960). . . . . . . . . . . . . . . . . . . . . 32, 33

Bottini v. City of San Diego,

27 Cal. App. 5th 281 (2018) . . . . . . . . . . . . . . 1, 14

Dolan v. City of Tigard,

512 U.S. 374 (1994). . . . . . . . . . . . . . . . . . . . . . . . 6

First English Evangelical Lutheran Church v.

Cnty. of L.A.,

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

First English Evangelical Lutheran Church v.

Cnty. of L.A.,

210 Cal. App. 3d 1353 (1989) . . . . . . . . . . . . . . . 28

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019). . . . . . . . . . . . . . . . . . . 6, 30

Landgate, Inc. v. California Coastal Comm’n,

17 Cal. 4th 1006 (1998). . . . . . . . . . . . . . 28, 29, 30

Loretto v. Teleprompter CATV Corp.,

458 U.S. 419 (1982). . . . . . . . . . . . . . . . . . . . . . . 16

Meriden Trust & Safe Deposit Co. v. FDIC,

62 F.3d 449 (2d Cir. 1995) . . . . . . . . . . . . . . 21, 22

Penn Cent. Transp. Co. v. New York City,

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

vii

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1923). . . . . . . . . . . . . . . . . . . . . . . 30

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

450 U.S. 621 (1981). . . . . . . . . . . . . . . . . . . . . . . 21

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency,

535 U.S. 302 (2002). . . . . . . . . . . . . . . . . 31, 32, 33

Yancey v. United States,

915 F.2d 1534 (Fed. Cir. 1990) . . . . . . . . . . . . . . 22

CONSTITUTIONS AND STATUTES

U.S. CONST. AMEND. V . . . . . . . . . . . . . . . . . . . . . 2, 13

28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CAL. CONST., ART. 1, § 19 . . . . . . . . . . . . . . . . . . . . . . 2

CAL. PUB. RES. CODE § 21000 et seq. . . . . . . . . . . . . . 9

OTHER AUTHORITIES

RICHARD BABCOCK & CHARLES SIEMON, THE ZONING

GAME REVISITED (1985). . . . . . . . . . . . . . . . . . . . . 7

RICHARD A. EPSTEIN, TAKINGS PRIVATE PROPERTY

AND THE POWER OF EMINENT DOMAIN (1985) . . . 31

Gideon Kanner & Michael M. Berger, The Nasty,

Brutish, and Short Life of Agins v. City of

Tiburon, THE URBAN LAWYER, Vol. 50, No. 1

(Spring 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1

OPINION BELOW

The opinion of the Court of Appeal of California,

Fourth Appellate District, Division One is reported at

27 Cal. App. 5th 281 (2018). App. 3–58.

JURISDICTION

The judgment of the Court of Appeal of California

was entered on September 18, 2018. App. 58. The

Supreme Court of California, the highest court of the

State, initially granted review by a December 19, 2018

order signed by the en banc court of six justices. On

April 10, 2019, however, the Supreme Court of

California dismissed the review as “improvidently

granted.” App. 1–2.

This Court has jurisdiction under 28 U.S.C.

§ 1257(a) because the California Court of Appeal’s

decision violates the Takings Clause of the United

States Constitution by rejecting the Bottinis’ claim for

a regulatory taking, raised in their merits brief filed in

that court on November 3, 2017 (see App. 92–107). See

First English Evangelical Lutheran Church v. Cnty. of

L.A., 482 U.S. 304, 313 n.8 (1987) (exercising

jurisdiction where petitioner had raised a takings claim

under the United States Constitution in the California

Court of Appeal).

On June 25, 2019, the Honorable Elena Kagan

granted petitioners’ application for a 30-day extension

of time to file the petition extending their deadline to

August 8, 2019.

2

On August 7, 2019, Justice Kagan granted

petitioners’ second application for a 28-day extension of

time to file the petition extending their deadline to

September 5, 2019.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution states:

No person shall … be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

U.S. CONST. amend. V. App. 89.

Section 19 of Article 1 of the California Constitution

states:

Private property may be taken or damaged for

public use only when just compensation,

ascertained by a jury unless waived, has first

been paid to, or into court for, the owner. The

Legislature may provide for possession by the

condemnor following commencement of eminent

domain proceedings upon deposit in court and

prompt release to the owner of money

determined by the court to be the probable

amount of just compensation.

CAL. CONST. art. 1, § 19. App. 89.

3

STATEMENT OF THE CASE

I.

The Bottinis’ Plight — to Build a Home

For eight years and running, all that Frank and

Nina Bottini, and their family trust (the “Bottinis”)

have wished to do is build a single-family home on an

ordinary 7,000-square foot lot in La Jolla, California, in

keeping with all their neighboring lots in the

community.

At the time of their purchase of the lot, the land was

occupied by a dilapidated house, which the City of San

Diego (the “City”) first deemed not historic, then

declared unsafe and a public nuisance, then ordered

demolished. In a reality-defying flip flop, only after the

non-historic, dilapidated house was demolished and

removed from the property did the City mandate,

against professional staff recommendations, an

infeasible time-traveling historical-resource review of

the then empty lot.

Prior to demolition, the Bottinis offered to let any

group or municipality, without charge, take the house

off their land if the group wanted it for preservation.

There were many loud and opinionated voices, but a

distinct lack of active response. There were no takers,

private or public, for the house. After lengthy

proceedings, the house was adjudged a public nuisance,

clearing the way for the construction of a new singlefamily home.

The Bottinis have asked for no deviation whatsoever

from current zoning requirements; they seek no special

concessions, privileges, or favors; their proposed plans

pose no peril to their neighbors. Their proposed home

4

imposes no harms to the environment. The Bottinis

have scrupulously and timely complied with each and

every arcane procedure needed to obtain a building

permit. They have obtained the approval of all

professionals on the City staff, only for the staff’s

expert judgments to be overridden by an overtly

partisan City Council that forced the Bottinis to endure

an exhaustive, expensive “review” under the California

Environmental Quality Act (CEQA), even though they

are entitled to an explicit, non-discretionary statutory

“categorical exemption” for their single-family home.

But it only gets worse. After years of senseless

delays, the Bottinis sought relief in the California

courts. First the California trial court, and then the

Court of Appeal acknowledged the administrative

shambles in the San Diego City Council, which violated

its own rules in overruling its own staff’s expert report.

Despite finding that the City Council acted unlawfully,

both courts ruled against the Bottinis on their claim for

a regulatory taking, including their takings claim

under the United States Constitution, which was

raised in their merits brief filed in the California Court

of Appeal on November 3, 2017 (see App. 92–107).

In rejecting the Bottinis’ takings claim under both

the federal and California Constitutions, the California

Court of Appeal utterly distorted this Court’s test in

Penn Central Transportation Co. v. New York City, 438

U.S. 104 (1978), by holding that the Bottinis could not

have formed distinct investment-backed expectations

in their particular project because they did not know —

and could not have known — at the time of purchase

whether they would be required either to fix up an old

5

home as a historical landmark or rip it down as a

public nuisance. The Court of Appeal held that these

uncertain expectations, wrought solely by government

action, doomed the Bottinis’ Penn Central claim.

The California Supreme Court granted review to the

Bottinis to answer just this question. It received the

Bottinis’ brief on March 22, 2019. Less than three

weeks later, on April 11, 2019, unanimously and

without explanation, the California Supreme Court

dismissed the review as “improvidently granted,” and

dismissed the case forthwith, without so much as

requiring a brief from the City Council in defense of its

unconstitutional actions. See App. 1–2.

The dismissal of the review reveals that the

California courts, which have often deviated from this

Court’s takings jurisprudence, are restricted to issuing

slap-on-the-wrist injunctions. After mangling the Penn

Central test, the California Court of Appeal made a

mockery of one other important precedent, First

English, 482 U.S. at 304, which requires that full

compensation be made for temporary total takings that

are not justified by the “normal delays” inherent in the

administrative process. The City did not, and could

not, point to any other single-family residential lot in

San Diego subjected to the delay occasioned by the

failure to apply the Class 3 CEQA exemption, yet the

California courts imply that this extraordinary delay is

“normal.”

First English overruled the earlier

California Supreme Court decision in Agins v. City of

Tiburon, 24 Cal. 3d 266 (1979), but the tradition of

California intransigence continues.

Now under

California law all delays are deemed “normal,” no

6

matter how contrived, unreasonable, or unique to the

property — for eight years and counting — so that the

caveat of “normal delays” has swallowed the basic rule

of First English.

The consequences are dire. The Bottinis’ lot lays

vacant. They have no way to recover their initial costs,

and they have incurred enormous outlays in terms of

cash and personal effort to obtain their building

permit. Nothing has moved the needle.

In the meantime their lot, if they are allowed to

build and complete a single-family home, will be worth

an estimated $3,000,000 to $4,000,000. Without a

building permit, the vacant lot is unusable and

virtually unsalable, with a $500,000 assessed value. In

the face of this provocation, the Bottinis do not seek a

constitutional revolution. They do insist that the

Takings Clause not be relegated “‘to the status of a

poor relation’ among the provisions of the Bill of

Rights.” See Knick v. Township of Scott, 139 S. Ct.

2162, 2169 (2019) (quoting Dolan v. City of Tigard, 512

U.S. 374, 392 (1994)).

Yet just that has been done by the California courts.

Their distorted readings of both Penn Central and First

English make it impossible for citizens to have their

day in court. Indeed, the shabby treatment given to

the Bottinis has no doubt been given to countless

California homeowners, and contributed to the state’s

epic housing shortages. See Gideon Kanner & Michael

M. Berger, The Nasty, Brutish, and Short Life of Agins

v. City of Tiburon, THE URBAN LAWYER, Vol. 50, No. 1,

at 18 (Spring 2019) (“‘[i]n California, the courts have

elevated governmental arrogance to a fine art’”)

7

(quoting RICHARD BABCOCK & CHARLES SIEMON, THE

ZONING GAME REVISITED 293 (1985)).

California has strayed too far from established

constitutional principles. The Court should grant

certiorari so that the healing process can begin.

II.

Background

A. The Bottinis’ 2011 Purchase of the Lot —

and the Dilapidated Cottage

In January 2011, the Bottinis paid $1.22 million for

the 7,000-square-foot lot (the “Property”), in the Village

of La Jolla in San Diego. App. 10. A lone dilapidated

structure called Windemere Cottage (the “Cottage”) sat

on the Property. App. 4–5. The Property was zoned

solely for single-family housing. App. 43. At the time

of purchase, it was uncertain whether the Bottinis

would preserve and renovate the Cottage for future

use, or whether they would tear it down in order to

make room for the construction of a new single-family

home. Still, the Bottinis were prepared to deal with

both situations.

B. The City’s Refusal to Designate the

Cottage as Historical

On August 1, 2011, the Bottinis applied to the City’s

Historical Resources Board (“HRB”), seeking a

determination as to whether the Cottage was eligible

for designation as a historical resource. App. 10–11.

After three months of hearings and reviews, the

HRB denied historical designation of the Cottage over

the objections of powerful local groups, including the La

8

Jolla Historical Society (“LJHS”) and the Save Our

Heritage Organisation (“SOHO”). App. 11.

The

Bottinis repeatedly offered to donate the Cottage to the

LJHS if the group would move it off the Property.

Declining these offers, the LJHS persisted in its efforts

to force the Bottinis to maintain the dilapidated, unsafe

structure on their Property.

C. The City’s Declaration of the Cottage as

a Public Nuisance and Issuance of a

Demolition Order

In November 2011, the Bottinis requested that the

City’s Neighborhood Code Compliance Division

(“NCCD”) evaluate the Cottage to determine whether

it was a dangerous and unsafe structure. App. 63–64.

The NCCD reviewed an exhaustive written opinion

from a structural engineer concluding that the Cottage

lacked structural integrity and was thus unsafe for

human habitation. App. 64. A Senior Civil Engineer

from the NCCD inspected the Cottage. Following the

inspection, on December 21, 2011, the NCCD declared

the Cottage a public nuisance and ordered the Bottinis

to obtain a demolition permit. App. 4. In compliance

with the City’s order, Bottinis timely applied for and

obtained a demolition permit from the City. App.

13–14. The demolition was thereafter completed.

Despite the City’s nuisance determination, the

controversy over the demolition of the Cottage

persisted. On the one hand, the local incumbents,

represented by powerful groups, such as the LJHS and

SOHO, deemed the Cottage a historical resource and

resented its demolition, even though they failed to

persuade the HRB. On the other hand, the City

9

agencies and engineers declared the Cottage a public

nuisance and required its demolition to keep the public

safe.

Caught in the middle of this controversy were the

Bottinis, who had, as the City concluded, followed the

law “to the letter” in their quest to build a single-family

home. App. 15. They then needed to apply to the City

for a building permit, called a Coastal Development

Permit (“Permit”). App. 14–16.

III.

The City Council’s Unlawful Conduct

Effectively Denying the Bottinis a

Permit — and All Use of the Property

On August 22, 2012, over eight months after the

demolition of the Cottage, the Bottinis applied to the

City’s Development Services for a Permit to construct

their single-family home. App. 14. On January 11,

2013, the City staff made its environmental

determination that the issuance of the Permit was

“categorically exempt” under the applicable guidelines

promulgated pursuant to CEQA, CAL. PUB. RES. CODE

§ 21000 et seq., pertaining to the construction of a

single-family residence (CEQA Guidelines § 15303).

App. 14.

To revenge its loss before the HRB to designate the

Cottage as a historical resource, the LJHS banded

together with the La Jolla Community Planning Group

and filed CEQA administrative appeals on February 4,

2013. See App. 14–15. Their appeals alleged that the

City staff’s environmental determination relied on an

improper baseline (urging for applying a baseline

predating the demolition of the Cottage), that the

10

demolition of the Cottage was part of the “whole of the

action,” and that substantial evidence established that

the demolition of the Cottage and the construction of a

single-family home (the “Project”) would have a

significant negative effect on a historical resource,

requiring the preparation of an environmental impact

report (“EIR”).

On March 15, 2013, the City’s staff issued a detailed

Staff Report to the City Council recommending denial

of the appeals because the Project was indeed

categorically exempt from CEQA review and because

the proper date for that analysis was August 12, 2012,

at which time the Project was a vacant residential lot

following the proper issuance of the demolition permit

in December 2011. App. 14, 64.

On June 3, 2013 — nine months into the Permitapplication process — the City Council held a public

hearing regarding the appeals, at which the City staff

reiterated its position that its report showed that the

demolition permit was validly issued. Specifically, the

City staff testified that, throughout the permitting

process, the Bottinis “followed [the City’s laws and

regulations] to the letter.” App. 15. Members of the

public spoke for and against the appeals.

Against the advice of City staff, one Councilwoman

(a former member of LJHS’s board of directors) moved

to grant the appeals. See App. 48 n.11. The City

Council deadlocked on the motion on two separate fourto-four votes and, thereafter, voted to continue the

consideration of the appeals.

11

On September 23, 2013, the City Council considered

the appeals for a second time. The City Council again

deadlocked on a four-to-four vote. But the City Council

was required by law to reach a decision, so that

somehow the tie had to be broken then and there. See

App. 15, 64. Then one Councilman who had previously

voted against the appeals, switched his vote solely to

allow the City Council to reach a decision. With this

vote switch, the City Council granted the appeals —

contrary to the recommendation of its professional

staff.

On that same day, the City Council adopted the

resolution that “there is a reasonable possibility that

the activity will have a significant effect on the

environment due to unusual circumstances and may

cause a substantial adverse change in the significance

of a historic resource” (the “Resolution”). See App. 15,

31.

The Resolution remanded the Project to the City’s

staff with instructions to reevaluate the environmental

determination with a baseline in 2010 — before the

Bottinis even owned the Property. See App. 15.

The Resolution reopened two issues that had been

exhaustively reviewed and properly decided — the

HRB’s refusal to designate the Cottage as a historical

resource, and the validity of the demolition permit,

without offering any explanation why a single-family

home on a lot specifically zoned for that purpose posed

a threat to the environment. See App. 43, 63–64. In

essence, the Resolution forced the Bottinis to do the

impossible: engage in the time-consuming, expensive

process of preparing an EIR with a baseline that

12

incorporated the Cottage, which no longer existed, and

which had been found ineligible for designation as a

historical resource.

Everything was back to square one. The Bottinis

were effectively denied a building permit — 12 months

after filing their application, 18 months after

complying with the demolition order, and 33 months

after purchasing the Property.

IV.

Proceedings in California Courts

A. The Superior Court of California denied

any compensation to the Bottinis even

after finding that the City acted

unlawfully.

On November 13, 2013, nearly three years after the

Bottinis purchased the Property, they sued the City

and the City Council (sometimes collectively referred to

as the “City”) in the Superior Court of California,

County of San Diego. The Bottinis sought a writ of

mandamus to set aside the Resolution, and brought an

action for damages for inverse condemnation.

On December 15, 2014, the trial court granted the

petition, concluding that the City Council abused its

discretion in determining — without substantial

evidentiary support — that the Project was not

categorically exempt from CEQA review. App. 69. The

court directed the City Council to set aside its

Resolution. On January 26, 2015, the court issued the

peremptory writ of mandamus, without setting a date

for the City to comply. App. 60. The December 15,

2014 order did not rule on the second cause of action

seeking damages for inverse condemnation.

13

In a transparent attempt to stall the Bottinis’ case,

the City prematurely appealed the trial court’s writ

order while the case remained pending — before final

judgment could be entered. The premature and,

indeed, meritless appeal delayed the case for almost a

year, until it was dismissed for lack of jurisdiction in

January 2016. See Bottini v. City of San Diego, No.

D067510, 2016 Cal. App. Unpub. LEXIS 629, at *2

(Cal. Ct. App. Jan. 26, 2016).

On June 7, 2016, the Bottinis amended their

complaint to add due-process and equal-protection

claims. On October 21, 2016, upon the City’s motion,

the trial court granted the City summary judgment

with respect to the Bottinis’ second (inverse

condemnation), third (due process), and fourth (equal

protection) causes of action. App. 5–6.

B. The Court of Appeal of California

misapplied Penn Central and rejected

the Bottinis’ takings claim.

On January 5, 2017, the City filed its second notice

of appeal from the trial court’s order granting the writ

of mandate. The Bottinis cross-appealed the trial

court’s summary-judgment rulings. In their November

3, 2017 merits brief, the Bottinis squarely raised a

claim under the federal Takings Clause (see App. 94

(citing U.S. CONST. amend. V)), arguing that the trial

court erred in granting summary judgment to the City

because sufficient factual issues existed with respect to

Penn Central’s investment-back-expectations factor (see

App. 102–105).

14

On September 18, 2018, the California Court of

Appeal affirmed in a published decision, Bottini v. City

of San Diego, 27 Cal. App. 5th 281 (2018). App. 3–58.

The court held that the City unlawfully ordered the

evaluation of a single Project going back to 2010,

because there was no evidence showing that the

Bottinis’ construction of a single-family home could

cause any significant environmental change, and

because the Resolution employed an improper baseline

for such evaluation. See App. 31–32.

But in the second portion of the decision, the Court

of Appeal concluded that the three-part test in Penn

Central governed the Bottinis’ inverse condemnation

claim. App. 34–42. Affirming the trial court’s

summary judgment ruling, the Court of Appeal denied

the Bottinis any compensation for their losses. The

court reasoned, erroneously, that the Bottinis had not

established at the appropriate point in time — in its

view, the original acquisition of the Cottage in January,

2011 — that they had sufficiently distinct investmentbacked expectations necessary to support a claim for

compensation in a regulatory-takings case. App.

43–46. More concretely, the court found “no basis” to

support “a reasonable expectation” on the part of the

Bottinis “that they would be permitted to engage in

such conduct without undertaking any form of

environmental review.” App. 45.

At no point in its Penn Central discussion did the

Court of Appeal evaluate the environmental concerns

that might be invoked to justify denying the Bottinis a

Permit. See App. 43–46. But the Court of Appeal

turned to those issues briefly in its rejection of the

15

equal-protection claim on the ground that “a legislative

classification does not deny equal protection if the

‘distinctions drawn by a challenged [act] bear some

rational relationship to a conceivable legitimate state

purpose.’” App. 53. Thus, “[a] distinction … is not

arbitrary if any set of facts reasonably can be conceived

that would sustain it.” Id. Consistent with this

standard, the Court of Appeal did not consider any

evidence of possible adverse consequence, and refused

to remand the case for further consideration of that

point, holding the existence of an actual stated basis for

decision was always irrelevant. App. 52–57.

C. After granting review, the Supreme

Court of California dismissed the review

as improvidently granted

The Bottinis petitioned for review in the Supreme

Court of California, which was granted on December

19, 2018. On March 22, 2019, the Bottinis filed their

merits brief in the Supreme Court of California.

Three weeks later, on April 10, 2019, the Supreme

Court of California dismissed review as “improvidently

granted.” App. 1.

* * *

To date, over eight years after the Bottinis

purchased the Property, nearly six years after the

Bottinis commenced action in the Superior Court, four

and a half years after the issuance of the writ of

mandate, and almost a year after the affirmance of the

writ order, the City has not complied with the order

that requires the unlawful Resolution be set aside. The

Bottinis still do not have a Permit to build their home.

16

REASONS FOR GRANTING THE PETITION

I.

The California Courts Have So Gutted the

Penn Central Test That It No Longer Places

Any Constitutional Restraint on the

Denials and Delays of Building Permits in

California

A. Penn Central sets forth a balancing test,

including consideration of investmentbacked expectations.

The California Court of Appeal has so twisted the

Penn Central balancing test for regulatory takings that

it no longer imposes any restraint against the arbitrary

and capricious behavior of local governments during

the permitting process. To set the stage, Penn Central

first distinguishes physical from regulatory takings.

As the law has developed, physical takings are

governed by the per se compensation rule of Loretto v.

Teleprompter CATV Corp. which holds that “a

permanent physical occupation [of private land]

authorized by government is a taking.” 458 U.S. 419,

426 (1982). But this Court has adopted a radically

different standard to deal with “regulatory takings”

that leave a landowner in full possession of the

property but still impose restrictions on its use or

disposition. In these cases, this Court has instructed

all lower courts to balance the inconvenience or loss of

the regulated landowner against the justifications,

often couched in environmental terms, for imposing the

challenged restrictions. The famous formulation of that

test reads:

17

The economic impact of the regulation on the

claimant and, particularly, the extent to which

the regulation has interfered with distinct

investment-backed expectations are, of course,

relevant considerations. So, too, is the character

of the governmental action. A “taking” may

more readily be found when the interference

with property can be characterized as a physical

invasion by government, than when interference

arises from some public program adjusting the

benefits and burdens of economic life to promote

the common good.

Penn Cent., 438 U.S. at 124 (citations omitted).

In dealing with this balance, Justice William J.

Brennan, Jr. first looked at the nature of the

government intrusion, and then turned to its asserted

public justifications. On these private losses, he wrote:

[T]he New York City law does not interfere in

any way with the present uses of the Terminal.

Its designation as a landmark not only permits

but contemplates that [landowner] may continue

to use the property precisely as it has been used

for the past 65 years: as a railroad terminal

containing office space and concessions. So the

law does not interfere with what must be

regarded as [landowner’s] primary expectation

concerning the use of the parcel.

More

importantly, on this record, we must regard the

New York City law as permitting [the

18

landowner] not only to profit from the Terminal

but also to obtain a “reasonable return” on its

investment.

Id. at 136.

The phrase “investment-backed expectations”

derives from the key finding that the ongoing

operations of Penn Central are sufficient to allow it to

obtain a reasonable rate of return on its invested

capital. In essence, the Court approaches the case as

if Penn Central were a public utility that was allowed

a reasonable rate of return on its invested capital. It

then further holds that the air rights to build above the

terminal did not have to receive any independent

valuation, even though they were fully vested and

protected rights under New York State law, which

could be, like other forms of property, sold, mortgaged,

leased, or given away.

B. The California Court grievously

misinterpreted accepted law on the status

of investment-backed expectations.

One key gap in the Penn Central formulation stems

from its failure to address the pivotal case of vacant

land, where by definition the property owner receives

no current revenues, and indeed suffers a negative rate

of return on the property, given that it is obligated to

pay taxes and to incur heavy expenses in an effort to

lift the restrictions that have been so imposed on the

property. In this case, Justice Brennan’s notion of

investment-back expectations cannot be applied in any

straightforward fashion when there is no going-concern

that generates a positive rate of return on the property

19

owner’s investment. At this point, the Penn Central

test necessarily becomes otiose if it values at zero all

future development rights, as was done credibly in

Penn Central itself.

Hence, it becomes imperative to develop some

formula that allows courts to steer a troubled path

between a legal regime that allows for no development

at all and one that strips local governments of all power

to regulate the new construction of vacant land.

Nothing in Penn Central itself addresses, let alone

answers, this challenge. Nor have lower courts been

able to offer any clear guidance as to how this might

best be done.

The intellectual gap in the Penn Central formula is

most evident in the grotesque transformation of

“investment-backed expectations” in petitioners’ case

decided over 40-years after Penn Central. The Bottinis

bought the land for one and only one purpose: to build

or renovate a single-family home in keeping with the

neighborhood for either sale or use. Clearly, their

$1.22 million investment was made to obtain a return

on capital either through sale, lease, or use. Taken

together, the full range of options rested on their

investment-backed expectations.

But this sensible interpretation of the requirement

received a back-of-the-hand rejection by California

courts. Now the California Court of Appeal has given

the words “distinct” or “particular” investment-backed

expectations a tortured reading that is at odds with

Penn Central. The relevant time for analyzing

“distinct” expectations, according to the court in

Bottini, was when the land was acquired and when

20

logically the Bottinis could not know whether they

would be forced to preserve the dilapidated structure as

an historical monument, or rip it down as a public

nuisance. They were prepared to do either, and when

the time came they properly dismantled the derelict

structure. The California Court of Appeal held that the

Bottinis were not, as a matter of law, entitled to just

compensation for a taking under Penn Central because

they could not establish that they had reasonable

investment-backed expectations solely by pointing to a

true representation made by the prior owner to the

Bottinis that the Property “could either be renovated or

demolished and replaced.” App. 44–45. The Court of

Appeal held that this statement of intention was

insufficient:

Mr. Bottini’s declaration does not state that,

at the time the Bottinis purchased the

[Property], they intended to demolish the

[Cottage] and construct a residence on the lot.

Thus, the Bottinis’ expectations are not distinct

and concrete, but are instead vague and

abstract.

App. 44.

That point proved dispositive because, based on the

“the lack of a distinct investment-backed expectation,”

the California Court of Appeal affirmed the trial court’s

grant of summary judgment for the City on the

Bottinis’ inverse-condemnation claim. App. 47. But

the California courts completely missed the point that

the proper expectation to consider is the use of the

property (here, as a single-family residence), not the

manner in which the owner achieves the use

21

(renovation versus new construction). If this logic

remains unchallenged, then any initial uncertainty

about the future course of a profit-making sidesteps the

Penn Central balancing test by requiring a summary

judgment in favor of the local government. Neither

side of the Penn Central test matters. It is irrelevant

that the government action is devastating to the

property owner. It is equally irrelevant that the

private project has trivial or even positive

environmental impacts. Given the complexity of the

land-use approval process, any local government has it

within its power to find or create some residual level of

uncertainty sufficient to neutralize Penn Central. The

misapplication of the reasonable-investment-backedexpectation test has become the death knell to any

landowner objection to any unlawful permitting

process.

The decision of the California Court of Appeal might

be thought to have some superficial credibility from the

general rule cited by Justice Brennan in San Diego Gas

& Electric Co. v. City of San Diego, 450 U.S. 621, 654

(1981). “As soon as private property has been taken,

whether through formal condemnation proceedings,

occupancy, physical invasion or regulation, the

landowner has already suffered a constitutional

violation, and the self-executing character of the

constitutional provision with respect to compensation

is triggered.” Id. (emphasis added, internal quotations

and citations omitted).

The same thought was

expressed in Meriden Trust & Safe Deposit Co. v.

Federal Deposit Insurance Corp.: the landowners “of

course are correct that the critical time for considering

investment-backed expectations is the time a property

22

is acquired, not the time the challenged regulation is

enacted.” See 62 F.3d 449, 454 (2d Cir. 1995)

(citing Yancey v. United States, 915 F.2d 1534 (Fed.

Cir. 1990)).

The error in the holding of the California Court of

Appeal was to assume that at the time of purchase the

Bottinis’ investment-backed expectation had to be

worthless because they did not know the manner in

which that expectation would be achieved. See App.

44–45. Thus this case presents several related, but

unresolved challenges for the Penn Central test. First,

what are the distinct investment-backed expectations

of the Bottinis, or any purchaser, of vacant land?

Second, when and how are those expectations

measured? If, as the evidence presented below

indicates, the investment was made with the sole

expectation of being able to maintain a single-family

home on a residential lot, then the “when” answer

requires a similar measurement whether it is

measured at time of purchase or at the subsequent

time of a permit application. The method of achieving

the expectation (either remodel or build a new home)

does not change with the time that expectation is

measured. It is positive, not zero, in both cases.

Certiorari should be granted to clarify just what

these important propositions mean for the Penn

Central test. In ordinary private transactions, the risk

of gain or loss transfers to the buyer at the conclusion

of the voluntary transaction. The same rule applies in

takings cases as well. Once the government has taken

title, it gets all the upside and downside of the

transaction. The former owner in turn has a fixed

23

claim for the value of the property at that time, plus

the interest that accrues between the time of the taking

and the time of payment. Put otherwise, the taking

makes the former owner a creditor of the government

entitled to interest payments for the period that the

underlying obligation remains unpaid.

One consequence of this rule is that subsequent

changes in the general law that occur after the taking

do not affect the amount of compensation. There was,

however, no change in the general law in the Bottinis’

case. There was only a misapplication of the relevant

standard. Applied to the Bottinis’ case, therefore, the

proper application of that rule takes into account the

uncertainties at the time of the taking. Thus, if there

is a probability, “p”, that the Property will be declared

a historical landmark, the first component of value is

pVL for the landmarked status (“VL” refers to the

Property’s value following historical designation).

Since there are only two choices, the second component

of value is (1-p)VN—the value of the Property if the

structure on the Property is indeed a public nuisance.

The total is the sum of these two numbers, pVL + (1p)VN > 0.

In this case, because the actual odds of a wrecked

building being declared a historical landmark were

exceedingly small, most of the value inhered in the

second term ((1-p)VN). What the California Court of

Appeal did was breathtaking in its sheer audacity. It

pointed to the initial uncertainty and assumed that the

total value was zero — the one answer that is totally

wrong. The gross deviation from accepted principles

cries out for correction by this Court.

24

C. The California Court

grievously exaggerated

environmental interest.

of Appeal

the City’s

One further reason to grant certiorari is to correct

the serious misinterpretation of the second prong of the

Penn Central test occasioned by the California Court of

Appeal’s kid-glove treatment of the City’s asserted

environmental interest. There is no doubt that the

state has large powers to respond to any possible

externalities, but the decision below goes far beyond

those broad boundaries. One clear case for government

regulation arises from the construction of any new

building. The most obvious externalities are nuisancelike activities: noises, smells, vibrations, leakages, of

which there is not a whisper here or in Penn Central.

But Penn Central established conclusively that modern

takings law does not treat nuisance control as setting

the outer limits of the police power. Building a Breuer

tower on top of Grand Central Station was not enjoined

because it created a public nuisance. Instead, New

York used the Grand Central Terminal’s unique

location along Park Avenue as a defense for its refusal

to grant a permit. Thus, Justice Brennan wrote:

Because this Court has recognized, in a

number of settings, that States and cities may

enact land-use restrictions or controls to

enhance the quality of life by preserving the

character and desirable aesthetic features of a

city, appellants do not contest that New York

City’s objective of preserving structures and

areas with special historic, architectural, or

25

cultural significance is an entirely permissible

governmental goal.

Penn Cent., 438 U.S. at 129 (citations omitted).

Yet the decision below goes far beyond the

proposition that Justice Brennan announced in Penn

Central. The clear negative implication from Justice

Brennan’s quoted passage is that the case would have

come out the other way if the proposed development

was, as is the case with the Bottinis, consistent with

the character of the neighborhood and imposed no

special burdens on any party. Thus the Bottinis case

falls at that opposite pole from Penn Central. The

Bottinis present no risk of a common-law nuisance.

Nor does the construction of single-family home in

keeping with the neighborhood offend any special

historic, architectural, or cultural standard.

Nonetheless, the California Court of Appeal refused to

even look at the second-half of the Penn Central

balancing test. See App. 47. As far as it was

concerned, no balancing was needed at all, because

local government control becomes total when any court

can decide wrongly that the Bottinis could not meet the

“distinct” expectations test. That one determination

cuts off any review of the environmental issues at all.

Accordingly, the Court of Appeal found “no basis” to

support “a reasonable expectation” on the part of the

Bottinis “that they would be permitted to engage in

such conduct without undertaking any form of

environmental review.” App. 45 (emphasis in original).

The California Court of Appeal’s objection to the

Bottinis’ claim wholly misconceives the case. The

Bottinis rightfully expected, when they invested $1.22

26

million dollars in their Property, to be able to construct

or renovate a single-family home in the same manner

and time frame as other similarly situated property

owners in San Diego, all of whom are and have been

categorically exempt by Class 3 from CEQA review.

They did, and do, claim and expect a hearing that

satisfies the mandate of Penn Central, which would

require at a minimum presentation of evidence

demonstrating the amount of just compensation for the

regulatory taking caused by the City’s denial of a

“Coastal Development Permit” that normally issues as

of right to owners of vacant lots zoned for single-family

homes.

And so Penn Central is turned upside down. Penn

Central pitted a strong property-rights claim against a

strong environmental claim. The property rights claim

there was rejected because the property retained a

current use that guaranteed it a reasonable rate of

return on its original investment. The Bottinis have no

permitted use, and a huge negative rate of return. The

environmental claims in Penn Central were also found

to have great weight because of their distinctive impact

on the Manhattan landscape. See 438 U.S. at 110 &

n.8, 115. In contrast, here the Bottinis are ruined

financially without any perceivable environmental risk

from their intention to build an ordinary single-family

home. See App. 28–31. No lower court should have

discretion to rig the test for investment-backed

expectations to deny a building permit for no good

reason. Certiorari must be granted to correct this

perverse and indefensible application of the Penn

Central case.

27

II.

The California Court of Appeal Misread the

“Normal Delay” Exception of First English

by Allowing It to Deny Any Compensation

in All Claims for Total Temporary Takings

In First English, the church operated its Lutherglen

campsite on twelve acres of property on the banks of

Middle Forks of Mill Creek in Los Angeles County. See

482 U.S. at 307. After major fires denuded lands

upstream from the camp, the County imposed a

temporary but total moratorium on new construction at

the location of the former site. Id. The only issue

before this Court was whether that regulation itself

generated a prima facie obligation to compensate the

owner for its loss of use during the designated period.

As in the Bottinis’ case, the church’s claim in First

English only arose under California law but the Court

in First English perceived no difficulty for certiorari

jurisdiction, see id. at 313 n.8, because, as is the case

here, the City conceded below that “this [California

Supreme] Court has held that the takings clause in the

California Constitution should be construed

‘congruently’ with the federal takings clause, with minor

differences that are not applicable here.” See App. 42.

With the issue properly before it, this Court held

that prima facie, such compensation was required, and

remanded the case back to the California courts for

further consideration to determine whether the local

government offered some sufficient police power

justification for its decision. See First English, 482

U.S. at 311, 322. On remand, the California Court of

Appeal held that such a police-power justification was

present given the need to protect young campers from

28

the potential risk of death or personal injury from

flooding. First English Evangelical Lutheran Church

v. County of Los Angeles, 210 Cal. App. 3d 1353, 1372

(1989).

Under First English, this Court also announced

another qualification to the temporary-total-takings

rule that this Court has not revisited in 32 years:

We limit our holding to the facts presented,

and of course do not deal with the quite different

questions that would arise in the case of normal

delays in obtaining building permits, changes in

zoning ordinances, variances, and the like,

which are not before us.

482 U.S. at 321 (emphasis added). Regrettably, the

Bottinis’ plight illustrates the way in which lower

courts can degrade the notion of “normal.”

The decision here is even in tension with California

law — Landgate, Inc. v. California Coastal

Commission, 17 Cal. 4th 1006 (1998), which held that,

doubtfully, an incorrect assertion of jurisdiction that

denied a landowner all use of his property for two years

counted as a “normal delay” that took the case out of

the First English rule. But even that court held that:

“It would be, of course, a different question if, even

though the [government’s] position … was so

unreasonable from a legal standpoint as to lead to the

conclusion that it was taken for no purpose other than

to delay the development project before it. Such a

delaying tactic would not advance any valid

government objective.” Id. at 1024. The repeated

stalling tactics of the San Diego City Council show how

29

this principle has been flouted in the very jurisdiction

that announced that rule. See App. 12–16, 74–75.

Certiorari is needed to avoid the absurd result that

makes all delays normal, and so that the important

constraint that this Court imposed on government

misbehavior does not become dead letter law.

The phrase “normal delays” has an irreducible

normative component. Individual landowners may be

able to predict that they will be ill-treated, but that

knowledge should not be used to strip them of all

procedural protections. Inordinate delays in land-use

proceedings are not “normal” just because they have

become commonplace. Justice Ming W. Chin of the

California Supreme Court made this forceful

observation about the “normal delay” exception to First

English in his dissent in Landgate:

When a regulatory agency prohibits all use of

a particular property, and the property owner is

forced to sue the agency to get it to change its

position, its stonewalling is not fairly

characterized as a “normal delay” in the permit

approval process.

17 Cal. 4th at 1205 (Chin., J., dissenting).

As Justice Chin further noted, the California

Supreme Court incorrectly adopted the exact meaning

of the phrase “normal delay” that Justice John Paul

Stevens offered in his First English dissent, namely

this: “Litigation challenging the validity of a land-use

restriction gives rise to a delay that is just as ‘normal’

as an administrative procedure seeking a variance or

an approval of a controversial plan.” First English, 482

30

U.S. at 334–35, cited in Landgate, 17 Cal. 4th at 1033.

But Justice Stevens’s formulation makes it appear as

though all delays initiated by the local government are

“normal,” which in turn invites any local government to

file pointless motions and frivolous appeals solely to

avoid issuing a permit. Like the term reasonable

investment-backed expectations, the term “normal” has

an implicit normative component. Not every delay is

normal, for many delays are both excessive and

unprincipled, so some guidance is imperative as to its

proper use.

The situation here has an eerie resemblance to the

exhaustion of state remedy requirement under Section

1983, which this Court overturned in the last term in

Knick, 139 S. Ct. at 2162. It is important to remember

that opportunism in land-use cases is not limited to

crafty property owners. All too often local hostility to

new development gets explicit voice in hearings before

local governments, and those senseless delays, both

before and after a final administrative determination is

made, constitute infringement of property rights every

bit as much as the misplaced exhaustion of remedy

requirement struck down in Knick. See id. at 2168.

There are, moreover, good political economy reasons

why only exceptional, not normal, delays should

generate takings claims. The point here goes back to

the provocative observation by Justice Oliver Wendell

Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S.

393 (1923), when he observed that cash compensation

is not required for the imposition of general land use

regulations that produce an “average reciprocity of

advantage.” Id. at 415. The notion of a “normal delay”

31

is meant to capture just this idea. In contrast,

abnormally long delays are outside the set of forced

exchanges that produce an average reciprocity of

advantage, and hence the economic imbalances have to

be compensated in cash. Since all property owners

have to go through normal procedures, it becomes

unduly burdensome to hold that all such small delays

should generate an obligation to compensate. Instead,

each landowner now understands that it receives a

quid pro quo for the loss of compensation under normal

delay, by not having to pony his or her share of taxes to

fund payments to all other applicants before a local

land use board. The relevant notion is one of “implicitin-kind compensation,” which applies not only in this

case, but in all instances of small but widespread

invasions of property rights. For explication and

examples, see RICHARD A. EPSTEIN, TAKINGS PRIVATE

PROPERTY AND THE POWER OF EMINENT DOMAIN

195–205 (1985).

The removal of the large

administrative costs generates savings that are shared

by all property owners, without working a transfer of

wealth to some politically favored class — the very

political risk that has been imposed on the Bottinis as

outsiders to the local politics. So long as the size of the

delay is proportionate, every landowner from the ex

ante position benefits from the elimination of the

compensation requirement.

In more technical

language, allowing an exemption for normal delays

works a Pareto improvement, while privileging

excessive delay works an illicit wealth transfer from

privileged insiders to vulnerable outsiders.

The power of this distinction is illustrated by TahoeSierra Preservation Council, Inc. v. Tahoe Regional

32

Planning Agency, 535 U.S. 302 (2002), which is readily

distinguishable from the Bottinis’ case. The issue in

Tahoe-Sierra was whether the decision by the Tahoe

Regional Planning Agency to impose a general

moratorium on development in order to take time to

prepare a comprehensive land-use plan constitutes a

per se taking that requires full compensation. In that

instance, the delay was 32 months, and was issued in

two separate stages as work progressed. See id. at 306.

This Court held that the per se rule did not apply. See

id. at 342. The simple explanation is that the time

allocated for this comprehensive effort could easily

have been needed to coordinate all the moving parts in

a major decision that could not easily be reversed after

it was made. The longer delay under conditions of

complexity did not work with any disguised or illicit

wealth transfers as all landowners within the region

were in the same basic position.

Accordingly, Tahoe-Sierra stands in sharp contrast

with the Bottinis’ unhappy predicament. The City’s

endless series of maneuvers have consumed over eight

years with no end in sight. But far from seeking to

implement any comprehensive development plan for a

large and complex region, the City’s sole objective is to

prevent the Bottinis, by hook or crook, from building an

ordinary single-family residence indistinguishable from

neighboring houses.

Any comprehensive zoning

ordinance may well need the approval of a majority of

the community. But unlike here, the burden of public

delay does not fall on a single landowner to bear the

brunt of any new decision. The oft-quoted remark in

Armstrong v. United States is most applicable:

33

The Fifth Amendment’s guarantee that

private property shall not be taken for a public

use without just compensation was designed to

bar Government from forcing some people alone

to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.

364 U.S. 40, 49 (1960).

If excessive delays are impermissible, just what

counts as a normal delay? One good reference point is

found in legislation that applies specific limits for

specific moratoria, all of which are far shorter than the

many years involved in this case. Thus, in his dissent

in Tahoe-Sierra, Chief Justice William H. Rehnquist

emphasized the majority’s recognition that permissible

moratoria are limited in duration — commonly ranging

between 45 days and two years:

As the Court recognizes, … state statutes

authorizing the issuance of moratoria often limit

the moratoria’s duration. California, where

much of the land at issue in this case is located,

provides that a moratorium “shall be of no

further force and effect 45 days from its date of

adoption,” and caps extension of the moratorium

so that the total duration cannot exceed two

years …. Another State limits moratoria to 120

days, with the possibility of a single 6-month

extension …. Others limit moratoria to six

months without any possibility of an extension.

535 U.S. at 353–54.

34

The inordinate delays in this case — eight years

and counting — far exceed these common time

limitations, without a semblance of justification. A

proper valuation of the losses from government action

should include all the economic losses that arise when

the government immobilizes land use, for eight years

and counting. There are always line-drawing problems

between normal and extraordinarily long delays, but

this case is not one of them. This Court needs to

respond firmly to the epidemic of abuse wrought by

intransigent local governments, and should grant the

writ of certiorari.

CONCLUSION

For all the foregoing reasons, the Court should

grant this petition for a writ of certiorari.

Respectfully submitted,

ALBERT Y. CHANG

YURY A. KOLESNIKOV

BOTTINI & BOTTINI, INC.

7817 Ivanhoe Avenue

Suite 102

La Jolla, California 92037

(858) 914-2001

RICHARD A. EPSTEIN

Counsel of Record

800 North Michigan Avenue

# 3502

Chicago, Illinois 60611

(312) 702-9563

richard.epstein@nyu.edu

Counsel for Petitioners

September 5, 2019