Amicus Curiae Brief — Francis A. Bottini, Jr., et al., Petitioners v. City of San Diego, California, et al.

No. 19-318

In the Supreme Court of the United States

__________

FRANCIS A. BOTTINI, JR., ET AL.,

Petitioners,

v.

CITY OF SAN DIEGO, ET AL.,

Respondents.

__________

On Petition for Writ of Certiorari

to the Court of Appeal of California,

Fourth Appellate District, Division One

__________

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONERS

__________

Ilya Shapiro

Counsel of Record

Trevor Burrus

Sam Spiegelman

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 812-0200

ishapiro@cato.org

October 4, 2019

i

QUESTIONS PRESENTED

(1) Whether the “investment-backed expectations”

prong of the Penn Central test is a workable means

of determining, in part, whether a partial regulatory taking has occurred.

(2) Whether, in a case such as this, government action

that stalls purchasers’ intended use of their property is beyond the “normal delays” that the Court

in First English believed not to require compensation under the Takings Clause.

Answering these questions is of vital and immediate importance. Confusion as to the meaning of “investment-backed expectations”—even with respect to

its correct terminology—continues to cause confusion

among courts and litigants alike, as does the location

of the line between “normal” and abnormal delays in

the exercise of land-use regulations.

ii

TABLE OF CONTENTS

Page

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

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

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

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

ARGUMENT ................................................................ 5

I. PENN CENTRAL’S “INVESTMENT-BACKED

EXPECTATIONS” PRONG PROVIDES LITTLE

GUIDANCE ON WHETHER A REGULATORY

TAKING HAS OCCURRED ................................... 5

A. Subsequent Cases Demonstrate the

“Investment-Backed Expectations” Prong’s

Fatal Flaws........................................................ 7

B. “Investment-Backed Expectations” Should

Be Plausible and Courts Should Understand

That Expectations Can and Should Change

with Different Circumstances ........................ 13

II. THE CITY’S RESPONSES TO PETITIONERS’

REQUESTS TO BUILD A NEW DWELLING IS

NOT A “NORMAL DELAY” UNDER FIRST

ENGLISH AND ITS PROGENY ......................... 16

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Creppel v. United States, 41 F.3d 627

(Fed. Cir. 1994)....................................................... 12

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) .. 1, 4, 17

Florida Rock Indus. v. United States,

45 Fed. Cl. 21 (Fed. Cl. 1999) ................................ 10

Goldblatt v. Hempstead, 369 U.S. 590 (1962) ........... 14

Guggenheim v. City of Goleta,

638 F.3d 1111 (9th Cir. 2010) .................... 10, 11, 15

Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015)........ 10

Kaiser Aetna v. United States,

444 U.S. 164 (1979) .............................................. 3, 8

Kirby Forest Indus. v. United States,

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

Knick v. Township of Scott, 139 S. Ct. 2162 (2019) .... 2

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

17 Cal. 4th 1006 (Cal. 1998) .................................. 18

Laurel Park Cmty., LLC v. City of Tumwater,

790 F. Supp. 2d 1290 (W.D. Wash. 2011) .............. 14

Lingle v. Chevron, 544 U.S. 528 (2005)................... 5, 9

Loveladies Harbor v. United States,

28 F.3d 1171 (Fed. Cir. 1994) ................................ 11

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) .............................................. 19

iv

Mayhew v. Town of Sunnyvale,

964 S.W.2d 922 (Tex. 1998) ................................ 9-10

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) .... 1, 14-15

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ......... 5

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

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

Philip Morris v. Reilly, 312 F.3d 24

(1st Cir. 2002) ......................................................... 10

Pruneyard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) .................................................... 9

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) .................................................. 9

Tahoe-Sierra Pres. Council v. Tahoe Reg’l

Planning Agency, 535 U.S. 302 (2002) ............ 17, 18

Walcek v. United States,

49 Fed. Cl. 248 (Fed. Cl. 2001) .............................. 13

Other Authorities

John Bolthouse, Windermere Cottage & Heritage

Lost, Save Our Heritage Org. .................................. 6

Looking Back on Penn Central: A Panel Discussion

with the Supreme Court Litigators,

15 Fordham Envtl. L. Rev. 287 (2004) .................... 8

Richard A. Epstein, Lucas v. South Carolina Coastal

Council: A Tangled Web of Expectations,

45 Stan. L. Rev. 1369 (1993) .................................... 9

Steven J. Eagle, Regulatory Takings (3d ed. 2005) .... 9

Steven J. Eagle, The Four-Factor Penn Central

Regulatory Takings Test,

118 Penn St. L. Rev. 3 (2014) .................................. 8

v

William W. Wade, Sources of Regulatory Takings

Economic Confusion Subsequent to Penn Central,

41 Envtl. L. Rep. 10936 (2011) ................................ 8

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was established in 1989 to help restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences, and produces the annual Cato Supreme Court Review.

This case interests Cato because the Takings

Clause of the Fifth Amendment, incorporated against

the states by the Fourteenth Amendment, has always

been difficult to define. The Court has several times

endeavored to demarcate its boundaries, to extend it

(without extending it too far) to those cases wherein,

as Justice Oliver Wendell Holmes put it, a “regulation

goes too far.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 415

(1922) (emphasis added). In this case, the regulation

has “gone too far,” and rectifying it requires a reexamination of two of this Court’s more wide-reaching precedents in Takings Clause jurisprudence: the “investment-backed expectations” prong of Penn Central

Transp. Co. v. New York City, 438 U.S. 104 (1978), and

the “normal delays” test first hinted at in First English

Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).

1 Rule 37 statement:

All parties were timely notified and consented to the filing of this brief. No part of this brief was authored

by any party’s counsel, and no person or entity other than amicus

funded its preparation or submission.

2

SUMMARY OF ARGUMENT

The protection of property rights should generally

conform with those of other natural and constitutional

rights. Last term, in an opinion overruling precedent

that required state-level exhaustion of takings claims

before making a federal case, the Court held that

fidelity to the Takings Clause and our cases

construing it requires overruling Williamson

County and restoring takings claims to the

full-fledged constitutional status the Framers

envisioned when they included the Clause

among the other protections in the Bill of

Rights.

Knick v. Township of Scott, 139 S. Ct. 2162, 2170

(2019). Unfortunately, the Takings Clause has witnessed a gradual minimizing of its force in favor of

ever-more intrusive governmental actions. One case in

particular has haunted the clause for the better part

of the past half-century.

In Penn Central Transp. Co. v. New York City, 438

U.S. 104 (1978), the Court set forth a three-pronged

test that has perplexed courts, lawyers, and inquiring

laymen ever since. One of the prongs—testing purchasers’ “investment-backed expectations” to determine whether there has been a regulatory taking—has

sparked significant confusion. Its vagueness belies a

doctrinal weakness, one that has panned out in the

hundreds, if not thousands, of opinions that have cited

it to find in favor of a government action, often with

only surface analyses of the motivation behind the action and its true economic impact.

3

It also rests on a partial mistake, or at least a careless oversight. The original Penn Central decision

spoke of “distinct” investment-backed expectations.

438 U.S. at 124. One year after Penn Central, in Kaiser

Aetna v. United States, “distinct” had turned into “reasonable.” 444 U.S. 164, 175 (1979). In the legal lexicon,

“distinct” and “reasonable” are different concepts. Yet

even this Court made the mistake of citing Penn Central as the source of the “reasonable” language.

The (reasonable) “investment-backed expectations”

prong of Penn Central and Kaiser Aetna has allowed

federal, state, and local officials to take many actions

that, under a more robust (and spelled out) doctrine,

would not have made it past judicial scrutiny. Subsequent cases demonstrate that not only is the prong

toothless, but even its terminology is often lost in its

confused application.

For the Bottinis, there is more at stake than scholastic haranguing over terminology. This young couple

wants the freedom to build a simple single-family residence in which to raise their children. Their modest

American dream has turned into a nightmare, as for

the better part of a decade the city of San Diego,

goaded by local historical-preservationist groups, has

denied them the necessary permits until they conduct

an environmental-impact review of an action—the

demolition of an old cottage on the property—that was

already taken on separate public-nuisance grounds.

The city’s stonewalling is more than just the “normal delays” inherent to the land-use regulation process. While the Court in First English Evangelical Lutheran Church v. County of Los Angeles suggested that

“normal delays” cannot constitute a regulatory taking,

4

482 U.S. 304, 321 (1987), the motivations behind the

city’s actions appear driven by vindictiveness over the

demolition of the old cottage—whether from city officials or the historical-preservationist groups egging

them on. It was a lovely cottage, but it had fallen on

hard times when the Bottinis purchased it. The couple

thus sought, and quickly received, permission to demolish it as a public nuisance, thereby obviating the

need for an environmental-impact review.

And this change of circumstances also had the effect of changing the Bottinis’ investment-backed expectations, which the city argues should be measured

at the time of purchase rather than at some point after

the cottage demolition. That distinction is important.

If investment-backed expectations are formed and

fixed at the time of purchase without any consideration of subsequent events—such as a change in the interplay between state and local regulatory regimes—

then the investment-backed expectations prong gives

government officials carte blanche to throw whatever

they can at purchasers whom they hope to thwart. It

is an untenable prong, one which gives no real guidance to courts looking for a doctrine of uniform applicability, or to prospective purchasers forming expectations in the shadow of regulatory uncertainty.

This untenable application of the investmentbacked expectation rule, when combined with a nebulous “normal delays” proviso, reveals a glaring defect

of post-Penn Central takings jurisprudence. Having

opened the federal courthouse door to takings claims

in Knick, the Court should reformulate and clarify its

regulatory-takings jurisprudence. Federal courts and

litigants deserve a stronger “polestar.”

5

ARGUMENT

I. PENN CENTRAL’S “INVESTMENT-BACKED

EXPECTATIONS” PRONG PROVIDES LITTLE GUIDANCE ON WHETHER A REGULATORY TAKING HAS OCCURRED

In Penn Central Transp. v. New York City, 438 U.S.

104 (1978), the Court created a test that has become

the “polestar” for analyzing whether a government action constitutes a partial regulatory taking. Palazzolo

v. Rhode Island, 533 U.S. 606, 633 (2001); see also

Lingle v. Chevron, 544 U.S. 528, 539 (2005) (“The Penn

Central factors—though each has given rise to vexing

subsidiary questions—have served as the principal

guidelines for resolving regulatory takings that do not

fall within the physical takings or Lucas [total regulatory takings] rules.”). The test is comprised of three

prongs, which have been rehashed ad infinitum in subsequent cases. Two of these prongs are not pertinent

here. The purchasers’ “distinct investment-backed expectations,” however, is pivotal to the petitioners’ case.

Penn Central has engendered a wide array of judicial interpretations that, in the aggregate, provide no

prescriptive guidance to those who hope to follow this

precedent. It is especially confusing for property owners like the Bottinis, for whom on-the-ground conditions have changed to such a degree as to prevent their

having formulated informed expectations at the time

of purchase. These cases warrant a reexamination, if

not a total revision of the expectations prong. At the

very least, the prong’s timing should be better defined.

Take this case. A husband and wife buy a longabandoned cottage on a parcel surrounded, block after

6

block, by single-family residences. Upon the town’s approval, they demolish the dilapidated structure. Once

demolished, there is no actual need for a separate environmental-impact review of what the demolition

would do to the property and surrounding parcels. It

is, after all, already gone. The couple then applies for

a permit to build a single-family dwelling of their own,

without first undergoing a now-pointless environmental review. The town stonewalls them at every turn,

deploying novel and often inappropriate tactics—such

as filing an appeal of a court order out of turn—all in

to appease local interests that did not want to see the

old cottage destroyed. Pet. Brief at 7–13. The director

of one such group, the “Save Our Heritage Organization,” claims to have even “broach[ed] the idea of allowing the cottage to be relocated to another site,” assuring that the group “would do everything it could to

expedite the move and limit the owner’s financial burden.” John Bolthouse, Windermere Cottage & Heritage

Lost, Save Our Heritage Org., https://bit.ly/2m2h117.

Even if they had a singular investment-backed expectation (despite the uncertainty of multiple, overlapping regulatory regimes), how would the Bottinis

prove it? Must they memorialize their plan and give it

to their lawyer for safekeeping? Should they apply for

an exemption to the environmental-review statute immediately upon buying the property? Could they ensure that the town is aware of state environmental-review laws when submitting their nuisance-based request to demolish the decrepit cottage? As the petitioners put it, if rejecting a claimed investment-backed expectation is as simple as pointing to other possible

plans the purchasers could have had as a result of foreseeable but unspecified post-purchase governmental

7

actions, “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.” Pet. Brief at 21 (emphasis

original). Even if the Bottinis had written down a series of plans to account for any number of potentialities, a fact-finder could easily look at these as having

adulterated the “distinctness” of any one plan.

This case, like many others, has several moving

parts. Such is the nature of property ownership and

development. It should not be left to the courts to determine what people may have been thinking when

they bought a property, especially where post-acquisition events fundamentally muddle a buyer’s initial

valuation. Investment-backed expectations change,

and in such cases the benchmark for measuring when

they were formed ought to change along with them.

A. Subsequent Cases Demonstrate the “Investment-backed Expectations” Prong’s

Fatal Flaws

The Penn Central test was designed to answer, “essentially ad hoc, factual inquiries.” 438 U.S. at 104. It

makes sense that the end product is to a certain degree

vague, or, more forgivingly, malleable. But subsequent

courts have stretched the test too far, especially considering some insider revelations as to its intended

scope. As one of Justice Rehnquist’s law clerks during

the Penn Central term put it:

[B]ecause it was written to try to hold a majority, it sets out a test which is appealing to

a large number of judges. And so it’s not at all

surprising that as courts have wrestled with

takings issues and found them as difficult as

8

they are, they frequently find themselves

coming back to Penn Central[,] which appears

to offer a refuge for virtually everyone—and

in the process maybe doesn’t say anything at

all.

Transcript, Looking Back on Penn Central: A Panel

Discussion with the Supreme Court Litigators, 15

Fordham Envtl. L. Rev. 287, 308 (2004) (remarks of

Professor Barton H. “Buzz” Thompson Jr.). One

scholar who has investigated the origins of the test

ponders if Justice Brennan, who penned the majority

opinion in Penn Central, ever even “intended the ‘investment-backed’ phrase to have precedential value,

or whether the phrase was adopted as a rhetorical device to adorn the [separate] ‘economic impact’ factor.”

Steven J. Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Penn St. L. Rev. 3, 620 (2014).

Justice Rehnquist added to the confusion in an

opinion published the year after Penn Central, referring to the prong as bearing on the “reasonable,” rather than “distinct,” investment-backed expectations

of purchasers. Kaiser Aetna v. United States, 444 U.S.

164, 175 (1979). Rehnquist had “no discernible legal or

linguistic purpose” for replacing “distinct” with “reasonable,” and “this change has confounded subsequent

courts’ views of reasonable profit expectations with

plaintiffs’ reasonable notice of regulatory prohibitions.” William W. Wade, Sources of Regulatory Takings Economic Confusion Subsequent to Penn Central,

41 Envtl. L. Rep. 10936, 10938 (2011). Whether intentional or not, the replacement of “distinct” with “reasonable”—although plenty of courts have used “distinct”—reveals a prong too vulnerable to adulteration.

9

This Court has also occasionally adopted the Kaiser

Aetna misdescription of the rule, without ever expressly stating that “reasonableness” would replace

Penn Central’s literal standard. Indeed, the Court has

tended to interchange the two terms without comment. Compare Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1005 (1984) (“reasonable investment-backed expectations”) and Pruneyard Shopping Ctr. v. Robins,

447 U.S. 74, 84 (1980) (same) with Lingle, 544 U.S. at

539 (“distinct investment-backed expectations”) and

Kirby Forest Indus. v. United States, 467 U.S. 1, 14

(1984) (same). These departures revealed, even at an

early stage, how susceptible the “investment-backed

expectations” prong could be to mischaracterizations

at best and misinterpretations at worst. Indeed, “it is

not clear that ‘investment backed expectations,’

whether unembellished or styled ‘crystalline’ or ‘reasonable,’ has any intrinsic meaning at all.” Steven J.

Eagle, Regulatory Takings 926–27 (3d ed. 2005). Further, as leading property-rights scholar Richard Epstein has argued: “All in all, we should be deeply suspicious of the phrase ‘investment-backed expectations’

because it is not possible to identify even the paradigmatic case of its use.” Richard A. Epstein, Lucas v.

South Carolina Coastal Council: A Tangled Web of Expectations, 45 Stan. L. Rev. 1369, 1370 (1993).

Courts around the country have analyzed the issue

in different ways, with varying levels of coherency. For

example, the Texas Supreme Court found that “no reasonable investor would purchase” a property that the

owners wanted to “up-zone” for residential development but had no real reason to think the town would

approve. In that case, the purchasers had no “reasonable investment-backed expectation to lose.” Mayhew

10

v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998).

The First Circuit, meanwhile, held that among Penn

Central’s “clear contours” is that “[c]ourts protect only

reasonable expectations.” Philip Morris v. Reilly, 312

F.3d 24, 36 (1st Cir. 2002) (emphasis original). The

Federal Circuit also looks to reasonable expectations,

misciting to Penn Central to have included a “reasonable investment-backed expectations” prong. Florida

Rock Indus. v. United States, 45 Fed. Cl. 21, 24 (Fed.

Cl. 1999).

This Court itself has at least once miscited Penn

Central as the original source of the “reasonable” version of the prong. See Horne v. Dep’t of Agric., 135 S.

Ct. 2419, 2427 (2015) (reading Penn Central as having

required “considering such factors as . . . [the regulation’s] interference with reasonable investmentbacked expectations”) (emphasis added).

Penn Central’s “investment-backed expectations”

prong is too abstract where it needs more definition

and too defined where it requires greater abstraction.

At bottom, the “distinctness” element of the prong is

quite susceptible to bastardization because some

courts have simply mischaracterized it, while most appear to hold it against the purchaser.

A useful starting point is the Ninth Circuit case of

Guggenheim v. City of Goleta, 638 F.3d 1111 (9th Cir.

2010), which stands in contrast to those cases in which

the distinct expectations of the purchaser were whatever the court thought they should have been. The

court held that “distinct” investment-backed expectations “implies reasonable probability.” Id. at 1120.

This description suggests that certain distinct expec-

11

tations of a return on investment cannot be entertained because they are factually implausible. Note

that this view would not invalidate the buyers’ claim

in Mayhew of a regulatory deprivation based on an unrealized expectation that the zoning laws would

change to accommodate their plans. “Speculative possibilities of windfalls do not amount to ‘distinct investment-backed expectations’ unless they are shown to be

probable enough materially to affect the price.” Id. at

1120–21. “The idea, after all, of the constitutional protection we enjoy in the security of our property against

confiscation is to protect the property we have, not the

property we dream of getting.” Id. at 1121.

In Guggenheim there is a hint of a new prong to

replace Penn Central’s “investment-backed expectations”—if the Court is so amenable. Instead of determining whether a particular expectation was “distinct”

or “reasonable,” it could simply ask whether a use the

purchaser now claims as an ex ante expectation was

plausible at the time the purchaser formed it. That

would allow plaintiffs like the Bottinis to claim that,

in purchasing property in a suburban community, they

had a plausible investment-backed expectation of using it for a habitable single-family residence.

Not all courts employ Guggenheim’s logic. In Loveladies Harbor v. United States, the Federal Circuit

held that “interference with distinct investmentbacked expectations was a way of limiting takings recoveries to owners who could demonstrate that they

bought their property in reliance on a state of affairs

that did not include the challenged regulatory regime.”

28 F.3d 1171, 1177 (Fed. Cir. 1994). But what if, as in

this case, the relevant interplay between regulatory

regimes arises after the purchase of the property? In

12

Creppel, an opinion filed the same year as Loveladies,

the same court elaborated that “the extent to which

the regulation interferes with the property owner’s expectations . . . limits recovery to owners who can

demonstrate that they bought their property in reliance on the nonexistence of the challenged regulation.”

Creppel v. United States, 41 F.3d 627, 632 (Fed. Cir.

1994) (cleaned up).

Should the measure of an expectation, as the court

in Creppel suggests, be between simply the existence

and nonexistence of an intruding regulation? What

about the interplay between state and local regulations that, ex ante, gives no real sense of the probability of one outcome over another? As the petitioners explain, “the proper application of [the] rule takes into

account the uncertainties at the time of the taking. …

In this case, the actual odds of a wrecked building being declared a historical landmark were exceedingly

small.” Pet. Brief at 23. Once the existing structure

was deemed a public nuisance, the need for an environmental-impact review became, at the very least, a

secondary concern to the Bottinis and any “reasonable” purchaser in similar circumstances.

Unlike in Mayhew, the Bottinis did not purchase

property with a mind to develop the land in contravention to existing zoning laws. Nor did they seek a publicnuisance declaration with the true purpose of avoiding

an environmental-impact review. At the time of purchase, they could not have known that, after applying

to demolish the existing structure as a public nuisance, their plans for a single-family home would face

administrative obstacles relevant only to the state of

affairs before the demolition. Under existing case law,

the regulatory regime the Bottinis now challenge could

13

not have existed when the old cottage was still in

place—that is, when they could have formulated “investment-backed expectations.” Present conditions

emerged as a result of the demolition, itself the result

of a local governmental process separate and distinct

from the state environmental-review regime.

In sum, the “investment-backed expectations” test

has been, from its outset, either a blank slate or an

empty vessel. It provides support for whatever a court

wants to do and is most often perfunctorily held

against the purchaser claiming a taking. These are not

the marks of a durable precedent. If Penn Central is to

remain the sine qua non of partial regulatory taking

analysis, it requires clarification. Besides clearing up

the reasonable/distinct interchange, the Court should

flesh out the prong with a set of precise factors that

serves to define “investment-backed expectations.”

B. “Investment-Backed Expectations” Should

Be Plausible and Courts Should Understand That Expectations Can and Should

Change with Different Circumstances

In Walcek v. United States, the Court of Federal

Claims partially fleshed out the temporal aspect of “investment-backed expectations,” but in a way that left

a glaring oversight. “This factor,” the court held, “encompasses two related elements: first, the extent of the

plaintiff’s investment in reliance on the regulatory

scheme in place at the time of the purchase; and second, the extent to which the regulation of the property

was foreseeable.” 49 Fed. Cl. 248, 268 (Fed. Cl. 2001).

But what about those cases where the plaintiff bought

the property in reliance on a regulatory scheme that

proved not to operate in a foreseeable way? What if the

14

interplay between regulatory regimes at the time of

purchase had since changed so fundamentally that the

expectations at the time of purchase could not be logically applied to subsequent circumstances?

In such cases, the concepts of “fairness and justice”

animating modern takings jurisprudence, Penn Central, 438 U.S. at 123–124, require that the “economic

injuries caused by public action be compensated by the

government, rather than remaining disproportionately concentrated on a few persons.” Goldblatt v.

Hempstead, 369 U.S. 590, 594 (1962). The Bottinis followed the law “to the letter” in their demolition of the

old cottage. Pet. Brief at 9. The city approved of the

action, whether informed of the need for an environmental-impact review or not. But that is not the Bottinis’ concern, and it does not bear upon their subsequent investment-backed expectations, including the

investment they put into the demolition of the cottage

with the cognizable expectation of constructing a single-family residence in its place. When a government

action changes on-the-ground circumstances to make

expectations at the time of purchase obsolete, it defies

“fairness and justice” to disproportionately concentrate the economic costs on anybody, not least the individuals who followed the law to the letter during the

demolition and subsequent approval process.

Of course, almost any regulatory action can stifle a

purchaser’s investment-backed expectations, but that

doesn’t mean a taking has occurred. Courts should not

entertain, for example, “an expectation that zoning

laws will remain unchanged during the life of [the purchasers’] property ownership.” Laurel Park Cmty.,

LLC v. City of Tumwater, 790 F. Supp. 2d 1290, 1301

(W.D. Wash. 2011). See also Pa. Coal, 260 U.S. at 413

15

(“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”).

But all possible regulations, and the interactions between them, can’t be expected ex ante.

In Mayhew, Guggenheim, and Laurel Park, the

courts were correct to reject an expected use that

would have directly violated a rule that was already on

the books when the claimants purchased the property.

Such “starry eyed hope[s] of winning the jackpot if the

law changes” ought not be grounds for a successful inverse condemnation claim. Guggenheim, 638 F.3d at

1120. But that is not the case here.

Challenges should not be easily dismissed where

(1) the totality of circumstances reveals an obvious investment-backed expectation at a relevant point in

time, and (2) regulatory impediments were not foreseeable at the time of purchase. The Bottinis obtained a

separate approval to demolish the cottage, not to construct a new home. The cottage was deemed uninhabitable and risked collapse during an earthquake. They

could not have known the property would still need to

undergo an environmental-impact review, despite the

obvious fact the cottage had already been destroyed.

The Bottinis now find themselves in a bizarre situation—“forced to do the impossible: engage in the timeconsuming, expensive process of preparing an [environmental-impact review] with a baseline that incorporated the [c]ottage, which no longer existed, and

which had been found ineligible for designation as a

historical resource.” Pet. Brief at 11–12. The “expensive process” of an environmental-impact review was

foreseeable and reasonably baked into the Bottinis’

16

plans at the time of purchase. It is no longer a part of

their investment-backed expectations. Nor should it

be, because now it is axiomatically unnecessary.

If the Bottinis are left uncompensated, future purchasers in La Jolla might forego actions that benefit

the broader public, such as the demolition of public

nuisances. Or, more likely, knowing they might have

to bear the costs of both a public-nuisance demolition

and an environmental-impact review, many prospective buyers would simply avoid La Jolla in favor of a

town with less zealous officials and fewer busybodies.

Amicus thus urges the Court to update Penn Central’s “investment-backed expectations” prong to account for the inherent uncertainty in property ownership and development, and to ensure that purchasers

like the Bottinis are accorded the legal protections

their constitutional property rights deserve.

II. THE CITY’S RESPONSES TO PETITIONERS’

REQUESTS TO BUILD A NEW DWELLING IS

NOT A “NORMAL DELAY” UNDER FIRST

ENGLISH AND ITS PROGENY

San Diego officials have tried at every turn to outlast the Bottinis in their nearly decade-long bid for a

home in the suburbs. The tactics that the city has deployed are not “normal” workaday delays, necessary

considering the character of the regulation. Instead,

these delays are meant to stonewall the Bottinis into

counting their losses and moving on.

In First English Evangelical Lutheran Church v.

County of Los Angeles, the Court first suggested that

“normal delays in obtaining building permits, changes

in zoning ordinances, variances, and the like” were not

17

to be considered takings. 482 U.S. 304, 321 (1987). But

those words are not meant to excuse any such delays,

and, as the petitioners argue, “inordinate delays in

land-use proceedings are not ‘normal’ just because

they have become commonplace.” Pet. Brief at 29. The

frequency of a constitutional violation will never serve

to normalize it. If anything, it makes this Court’s intervention more urgent. It is more than plausible that

the Bottinis’ plight has and continues to play out for

other purchasers across the country.

In Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, the Court clarified that abnormal delays—those that do not fall within First English’s “normal” carve-out—will not be recognized as takings if a

temporary deprivation of the use of one’s property is

intended to regulate a private use rather than to impose upon the property a public purpose. 535 U.S. 302,

323–24 (2002) (“Land-use regulations are ubiquitous

and most of them impact property values in some tangential way—often in completely unanticipated ways.

Treating them all as per se takings would transform

government regulation into a luxury few governments

could afford.”). The delay must also be in good faith

and not mere subterfuge. Id. at 333.

But what about First English “normal delays” that

are in bad faith? In Tahoe-Sierra, “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.” Pet.

Brief at 32. That is not the Bottinis’ situation. And, by

all indications, something less than a good faith effort

is afoot in the City’s eight-year stonewall.

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For one thing, the City has not imposed a moratorium on the issuance of all building permits for some

specified reason but has merely refused on several occasions to issue it to the Bottinis. Second, because it is

not a moratorium but rather a targeted delay, the costs

in time-value for the non-use of the petitioners’ property is not shared by others initiating the normal

building-permit process. This is not only bad-faith behavior, but it also violates the economic justification

underlying Tahoe-Sierra: “with a moratorium there is

a clear ‘reciprocity of advantage,’ because it protects

the interests of all affected landowners against immediate construction that might be inconsistent with the

provisions of the plan that is ultimately adopted.” 535

U.S. at 341 (internal citations omitted). And not only

are the city’s delays not part of a regulation-based moratorium, it is also not based on any future project. In

short, there is no legitimate reason for it. There are

only the outside pressures of local interest groups, and

passive municipal staff willing to do their bidding.

In Landgate, Inc. v. Cal. Coastal Comm’n, the California Supreme Court held: “It would be, of course, a

different question if, even though the [government’s]

position . . . advanced a legitimate state interest, that

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.” 17 Cal. 4th 1006 (Cal. 1998).

There is ample evidence in this case that the city

acted inappropriately in continually denying the Bottinis their request for a permit. See Pet. Brief at 7–15.

These tactics, taken together, provides an ideal chance

for this court to pinpoint a more precise location for the

19

First English/Tahoe-Sierra line. This is especially important for the Bottinis of the world, who lose all economically viable use of their property as a result of

such delays. In this sense, the Bottinis’ plight is similar to that of the plaintiff in Lucas v. S.C. Coastal

Council, except here it is slightly worse because the

deprivation is impliedly temporary as it lacks the finality and concordant remedies of a Lucas per se taking. 505 U.S. 1003 (1992).

Without a court’s intervention, the city will likely

continue to stonewall the Bottinis until the couple concedes defeat and accepts the extraordinary expense of

environmental-impact review—for a demolition that is

a literal fait accompli—the baseline for which ignores

everything that happened between the time of purchase and the present.

CONCLUSION

For the foregoing reasons, and those expressed by

the petitioner, the Court should grant certiorari.

Respectfully submitted,

October 4, 2019

Ilya Shapiro

Counsel of Record

Trevor Burrus

Sam Spiegelman

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 812-0200

ishapiro@cato.org