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 a Writ of Certiorari to

the California Court of Appeal,

Fourth Appellate District

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

___________

October 8, 2019

CORBIN K. BARTHOLD

Counsel of Record

CORY L. ANDREWS

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

cbarthold@wlf.org

QUESTION PRESENTED

How does the regulatory takings test set forth in

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

438 U.S. 104 (1978), work in cases of extraordinary

government delay?

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. iv

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

STATEMENT OF THE CASE ................................ 2

SUMMARY OF ARGUMENT................................. 7

REASONS FOR GRANTING THE PETITION ..... 8

THE COURT SHOULD GRANT REVIEW TO

CLARIFY HOW THE PENN CENTRAL TEST

WORKS IN CASES OF EXTRAORDINARY

DELAY ............................................................ 8

A. How We Got Here .................................. 8

1. Penn Central ................................ 8

2. Extraordinary Delay ................. 10

B. But Where Are We? ............................. 12

CONCLUSION ...................................................... 20

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Agins v. City of Tiburon,

447 U.S. 255 (1980) ................................ 11, 17, 18

Aloisi v. United States,

85 Fed. Cl. 84 (2008) .......................................... 13

Appolo Fuels, Inc. v. United States,

381 F.3d 1338 (Fed. Cir. 2004) .................... 13, 14

Bass Enter. Prod. Co. v. United States,

381 F.3d 1360 (Fed. Cir. 2004) .................... 10, 16

Byrd v. City of Hartsville,

620 S.E.2d 76 (S.C. 2005) .................................. 13

Cooley v. United States,

324 F.3d 1297 (Fed. Cir. 2003) .............. 15, 16, 17

Ecogen, LLC v. Town of Italy,

438 F. Supp. 2d 149 (W.D.N.Y. 2006)................ 14

First English Evangelical Lutheran

Church v. Cnty of Los Angeles,

482 U.S. 304 (1987) ............................................ 11

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) .......................................... 1

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

17 Cal. 4th 1006 (1998) ...................................... 10

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) .......................... 10, 11, 16, 18

Lucas v. S. Carolina Coastal Council,

505 U.S. 1003 (1992) ............................ 1, 9, 11, 12

v

Page(s)

N. Cnty. Advocates v. City of Carlsbad,

241 Cal. App. 4th 94 (2015) ................................. 3

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................ 16

Penn Cent. Transp. Co. v. City of

New York,

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

Penn. Coal Co. v. Mahon,

260 U.S. 393 (1922) .................................. 9, 10, 11

Rock Island A. & L.R. Co. v. United

States,

254 U.S. 141 (1920) ............................................ 11

Ruckelshaus v. Monsanto, Co.,

467 U.S. 986 (1984) ............................................ 16

Sackett v. EPA,

566 U.S. 120 (2012) ............................................ 18

State ex rel. Duncan v. Village of

Middlefield,

898 N.E.2d 952 (Ohio 2008) ............................... 13

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Agency,

535 U.S. 302 (2002) ..................................... passim

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Agency,

228 F.3d 998 (9th Cir. 2000) ........................ 12, 15

Wild Rice River Estates, Inc. v. City

of Fargo,

705 N.W.2d 850 (N.D. 2005) ........................ 13, 17

vi

Page(s)

Regulations:

14 Cal. Code Regs. § 15300 ..................................... 2

14 Cal. Code Regs. § 15303(a)................................. 2

Other Authorities:

John D. Echeverria, Making Sense of Penn

Central, 23 UCLA J. Envtl. L. &

Pol’y 171 (2005) ............................................ 10, 12

Note, The Supreme Court, 1986 Term:

Leading Cases, 101 Harv. L. Rev. 240

(1987) .................................................................. 11

Daniel L. Siegel & Robert Meltz,

Temporary Takings: Settled Principles

and Unresolved Questions,

11 Vt. J. Envtl. L. 479 (2010) ....................... 12, 13

1

INTEREST OF AMICUS CURIAE*

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free

enterprise, individual rights, limited government,

and the rule of law. It has appeared as amicus curiae

before this Court in important Fifth Amendment

takings cases. See, e.g., Knick v. Township of Scott,

139 S. Ct. 2162 (2019); Lucas v. S. Carolina Coastal

Council, 505 U.S. 1003 (1992).

This case puts an infamous Supreme Court

decision in touch with a notorious part of American

homeownership. It asks what the impenetrably

obscure regulatory takings test in Penn Central

Transportation Co. v. City of New York, 438 U.S. 104

(1978), has to say about the often long, arduous, and

vexing process of obtaining a building permit from

the local zoning authority. The answer, it turns out,

is “very little.” And that’s a problem, because this

Court has said that the lower courts must use Penn

Central to assess whether the length of a permit

delay has created a taking that requires just

compensation.

No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, helped pay for the brief’s preparation or

submission. At least ten days before the brief was due, WLF

notified each party’s counsel of record of WLF’s intent to file

the brief. Each party’s counsel of record has consented in

writing to the brief’s being filed.

*

2

Everyone is confused. Judges are applying Penn

Central to delay cases in all sorts of inconsistent

ways. WLF urges the Court to provide some clarity.

STATEMENT OF THE CASE

Frank and Nina Bottini bought a residential lot

in La Jolla, California, in February 2011. Pet. App.

10. The house on the property had been built in

1894—ancient

by

California

standards—and

designed by Irving J. Gill. Id. at 9-10. The Bottinis

asked the pertinent local authority, the Historical

Resources Board, whether the house qualified as a

historic monument worthy of preservation. Id. at 1011. The Board’s staff opined that the house was too

altered from its original state to warrant protection.

Id. After holding a hearing on the question in

September 2011, the Board agreed. Id. at 11. The

Bottinis then asked the City of San Diego to

determine whether the house was structurally

unsound, and thus a public nuisance. Id. at 12. The

City decided that indeed it was, and directed the

Bottinis to tear it down. Id. at 13. The Bottinis

promptly did so. Id.

In August 2012 the Bottinis applied to build a

single-family home on the now-vacant lot. Id. at 14.

The question arose whether the building project had

to undergo environmental review under the

California Environmental Quality Act (CEQA). The

construction of a “single-family residence” is

typically “categorically exempt” from such review.

See 14 Cal. Code Regs. §§ 15300, 15303(a).

Accordingly, in January 2013 the City staff declared

the Bottinis’ building project exempt. Pet. Br. 9.

3

Two local preservation groups appealed the

staff’s decision to the San Diego City Council. Pet.

App. 14. The appeal stood on two assumptions:

(1) that the old house should have been incorporated

into the project “baseline,” and (2) that the old house

was a “historic resource.” Id. at 14-16. Each

assumption was insupportable. A CEQA project

“baseline” is simply “the environment’s state absent

the project,” N. Cnty. Advocates v. City of Carlsbad,

241 Cal. App. 4th 94, 101 (2015)—in the Bottinis’

case, an empty lot—and the Board had already said

that the old house was of no historic value.

At a June 2013 City Council hearing, the deputy

city attorney told the Council that the Bottinis had

followed the municipal code “to the letter.” Pet. Br.

10. The City staff recommended that the Council

deny the appeal. Id. A councilwoman moved to grant

it, however, and in a vote on her motion the Council

deadlocked 4 to 4. Id. At a second hearing, in

September 2013, the Council voted 5 to 3 to grant

the appeal, one councilmember changing his vote

simply to break the stalemate. Id. at 11. The Council

then passed a resolution stating that the project

could damage a “historic resource.” Id. How could a

“resource” that no longer existed be damaged? The

Council simply declared, for purposes of setting a

project baseline, that the old house still stood. Pet.

App. 15. The Council directed the City staff to

reassess the project with that assumption in place.

Id.

The Bottinis promptly sued the City and the

Council in state court. Id. at 16. About a year later,

in December 2014, the trial court declared the

4

project exempt from CEQA review. Pet. Br. 12. It

ordered the Council to vacate its resolution. Id.

The Bottinis’ lawsuit included a cause of action

for inverse condemnation, and the trial court had

still to address that claim. Id. The Council submits

that, having been ordered to set aside the resolution,

it had either to ignore the order and risk contempt,

or to comply with it and risk losing the right to

challenge it on appeal. Bottini v. City of San Diego,

2016 WL 304682 *1 (Cal. Ct. App. Jan. 26, 2016).

The City could simply have asked the trial judge to

resolve this supposed concern. (The order set no

deadline for compliance.) Instead the City lodged an

appeal. A year later, in January 2016, the Court of

Appeal stated the obvious: “the City’s appeal

violate[d] the one final judgment rule.” Id. Appeal

dismissed.

Ten months later the trial court rejected the

inverse-condemnation claim (along with other claims

the Bottinis had raised in an amended complaint).

Pet. Br. 13. Both sides appealed.

Another twenty months later, in September

2018, the court of appeal affirmed both the order

invalidating the resolution and the order dismissing

the Bottinis’ inverse condemnation claim (as well as

their other claims, which will receive no further

attention).

To justify subjecting the Bottinis’ project to

CEQA review, the Council had cited two rules. A

project is not exempt from review if (a) it “may cause

a substantial adverse change” to a “historical

resource,” or (b) it will “have a significant effect on

5

the environment due to unusual circumstances.” Pet.

App. 29-30. The City, the court noted, in addressing

the first rule, had itself decided that the old house

was not a historic monument. The City could not, the

court said, simply “turn back the clock”—by, say,

setting a fantastical project baseline—and attaint

the Bottinis’ City-approved demolition of the old

house. Id. at 28. And even if the old house had been

a “historical resource,” the court added, the project

could “not cause a substantial adverse change” to a

structure that had “already been demolished.” Id. at

30.

“The City,” the court observed, turning to the

second rule, took “contradictory and confusing

positions” on the Council’s claims about “unusual

circumstances.” Id. at 30 n.9. At one point the City

argued that “the Bottinis’ self-serving actions” had

“present[ed]” the “unusual circumstances” that

justified subjecting their project to CEQA review. Id.

Later, however, the City claimed that the Council

had not invoked the “unusual circumstances” rule to

begin with. Id. It is plainly vindictive and irrational

to impose environmental review on an empty lot

because one dislikes what happened to a building

that no longer stands there. Perhaps the City came

to understand how bad the Council’s use of the

“unusual circumstances” rule looked.

In all events, the court called the City on its

revisionism, concluding that the Council “did in fact”

invoke the “unusual circumstances” rule. Id. The

City argued that the process leading to the old

house’s destruction was “unusual.” Again, though, it

was a non sequitur to cite the way the house came to

meet its end as a ground for reviewing the project’s

6

environmental impact going forward. Id. at 31.

Moreover, the City’s point failed on its own terms.

Although the City claimed that the Bottinis had

“pressured,” “cajoled,” “coerc[ed],” and “strongarmed” city employees into granting a demolition

permit, the City cited no evidence to support any of

its smears. Id. at 21-22. There was, quite simply,

nothing “unusual” about the project. Id. at 31.

The discussion to this point should have told us

a lot about the Bottinis’ inverse-condemnation claim.

The Bottinis contend that the City’s extraordinary

delay in granting a building permit amounts to a

temporary regulatory taking of property without just

compensation. As support for their claim that the

delay has been “extraordinary,” the Bottinis point to

(among other things) the City’s ex-post-facto

contortion of the project baseline, its abuse of the

“historical resource” and “unusual circumstances”

rules, its personal attacks on the Bottinis

themselves, and its exceedingly weak interlocutory

appeal.

In considering the Bottinis’ claim, however, the

court of appeal never got that far. The court applied

Penn Central, 438 U.S. 104, which, in its view,

required the Bottinis to satisfy each prong of a

multi-factor test to establish a temporary regulatory

taking. Pet. App. 42-43, 47. The court focused on a

single factor. The Bottinis were unsure, when they

purchased the lot, what building would ultimately

stand on it. Id. at 47. The court held that the

Bottinis thus lacked a “distinct investment-backed

expectation” (in Penn Central’s words) for the

property. Id. at 43-46. The court treated this

finding—along, perhaps, with the fact that the

7

government had not literally invaded the Bottinis’

land—as fatal to the Bottinis’ taking claim. Id. at 47.

Their claim was a loser, in other words, no matter

how long the delay dragged on, and no matter what

the government might do to prolong it.

The California Supreme Court granted review. It

later reversed course, however, and dismissed review

as improvidently granted. Id. at 1.

SUMMARY OF ARGUMENT

The Bottinis own a plot of land, and they want to

build a house on it. The land is of no use to them for

any other purpose: it is zoned for residential use.

One might think, therefore, that if the local

government deprived the Bottinis of a building

permit for years on end, the question would

eventually arise whether the sheer length of the

delay—especially if that delay came with signs that

the government was acting in bad faith—constituted

a temporary regulatory taking of the Bottinis’

property. For a while, indeed, the Takings Clause

seemed to work this way.

But this Court later decided that it’s not so

simple. The Court ruled that a plaintiff seeking to

show that extraordinary government delay has

caused a temporary regulatory taking must satisfy a

multi-factor test built around Penn Central, 438 U.S.

104. The Court did not explain how the Penn Central

test works in delay cases, however, and the lower

courts have been hopelessly lost in trying to work it

out for themselves. It appears, for instance, that the

court below failed to let the government’s delay play

any real role in its Penn Central analysis.

8

The lower courts cannot figure out how

extraordinary delay fits into the Penn Central test,

or how bad-faith conduct by the government fits into

an assessment of extraordinary delay. They take

differing stances on whether any specific length of

delay is presumptively extraordinary. They cannot

agree on whether the Penn Central factors are

considered in a certain order or all at once. They are

not even sure what those factors are.

This area of law is a mess. Property owners

across the nation need this Court to step in and sort

it out.

REASONS FOR GRANTING THE PETITION

THE COURT SHOULD GRANT REVIEW TO

CLARIFY HOW THE PENN CENTRAL TEST WORKS

IN CASES OF EXTRAORDINARY DELAY.

We will first explain how the Penn Central test

arose, where the concept of a delay-based temporary

taking comes from, and how the Court came to apply

the Penn Central test to cases of extraordinary delay.

We will then turn to the lower courts’ ongoing

struggle to apply the Penn Central test when a

plaintiff alleges that an extraordinary delay has

caused a temporary regulatory taking.

A.

How We Got Here.

1.

Penn Central.

The Fifth Amendment’s Takings Clause (applied

to the states through the Fourteenth Amendment’s

9

Due Process Clause) requires the government to pay

“just compensation” for “private property” it takes

for “public use.” For a long time “it was generally

thought” that the Takings Clause applied only to the

“direct appropriation” of property or the “practical

ouster” of a property owner. Lucas, 505 U.S. at 1014.

In 1922, however, the Court acknowledged that the

Takings Clause must impose some limit on a

government’s ability to qualify property rights

through regulation. Otherwise the government,

acting in accord with “human nature,” would extend

its power “more and more until at last private

property disappears.” Penn. Coal Co. v. Mahon, 260

U.S. 393, 415 (1922). Regulation that “goes too far”

must, therefore, be “recognized as a taking.” Id.

Saying what “goes too far” has caused the Court

“considerable difficulty.” Penn. Cent., 438 U.S. at

123. In Penn Central, decided in 1978, the Court

tried to offer some definitive guidance. New York

City declared Grand Central Terminal a historic

landmark. One effect of that declaration was to bar

the property’s owner, the Penn Central railroad,

from building anything above the station. The

railroad argued that this bar qualified as a taking.

On its way to disagreeing, the Court noted that the

analysis of regulatory takings claims is generally “ad

hoc.” Id. at 124. Still, the Court said, a few factors

“have particular significance.” A regulation that

disrupts a property owner’s “distinct investmentbacked expectations,” for example, is more likely to

constitute a taking. Id. So is a regulation that costs

the property owner a lot of money, or one that

interferes with the property itself (by allowing the

government to “invad[e]” it, for instance). Id.

10

Each of the Penn Central factors, the Court later

conceded,

has

produced

“vexing

subsidiary

questions.” Lingle v. Chevron U.S.A., Inc., 544 U.S.

528, 539 (2005). Other thinkers have been a little

less charitable. One scholar questioned whether

Penn Central offers anything more than “legal

decoration for judicial rulings based on intuition.”

John D. Echeverria, Making Sense of Penn Central,

23 UCLA J. Envtl. L. & Pol’y 171, 175 (2005). Janice

Rogers Brown, for her part, called the Penn Central

test “squishy,” “amorphous,” and “intractably

complex.” Landgate, Inc. v. Cal. Coastal Comm’n, 17

Cal. 4th 1006, 1036 (1998) (Brown, J., dissenting).

It’s not even clear what one is to do with Penn

Central. Does the decision create a formulaic multifactor test (step 1: look for investment-backed

expectation; step 2: look for government interference;

etc.)? That’s what the court below assumed. Pet.

App. 42-47. But other courts see Penn Central as

calling for a free-wheeling assessment of the totality

of the circumstances. See, e.g., Bass Enter. Prod. Co.

v. United States, 381 F.3d 1360, 1370 (Fed. Cir.

2004). We will return to this tension. For now it

suffices to note that, however it is applied, the Penn

Central test is a malleable one. It arguably lets a

judge reach “virtually any result” he wants.

Landgate, 17 Cal. 4th at 1036 (Brown, J.,

dissenting).

2.

Government Delay.

As with regulation that “goes too far,” so with

delay that “goes too long.” An indefinite wait for a

land-use permit must at some point trigger a taking.

Otherwise the state could dither “until at last

11

private property disappears.” Mahon, 260 U.S. at

415.

“Men must turn square corners when they deal

with the Government.” Rock Island A. & L.R. Co. v.

United States, 254 U.S. 141, 143 (1920) (Holmes, J.).

No one expects the local zoning board to move

quickly. Nor is it required to do so. The Court said as

much when it first hinted that, nonetheless, some

outer boundary for delay must exist. “Mere

fluctuations in value during the process of

governmental deicisionmaking,” the Court explained

in 1980, are, “absent extraordinary delay,” simply

“incidents of ownership” that do not trigger the

Takings Clause. Agins v. City of Tiburon, 447 U.S.

255, 263 n.9 (1980) (emphasis added), overruled on

other grounds by Lingle, 544 U.S. 528, as we will

see.

A few years later, in First English Evangelical

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

304 (1987), the Court confirmed that the state must

pay for a temporary taking no less than for a

permanent one, id. at 318. The Court reiterated,

however, that the delay must be extraordinary.

Temporary takings do not arise from “normal delays

in obtaining building permits.” Id. at 321.

But how long is too long? First English provides

“no basis for distinguishing a ‘normal’ delay from an

excessive one.” Note, The Supreme Court, 1986

Term: Leading Cases, 101 Harv. L. Rev. 240, 246

(1987). Lucas, decided in 1992, holds that when the

state tells a person “to leave his property

economically idle,” he “has suffered a taking.” 505

U.S. at 1019. So for a time we seemed at least to

12

know, from combining First English (long delay =

taking) and Lucas (forced idleness = taking), that an

unreasonable wait for a building permit is a taking.

See id. at 1011-12; Tahoe-Sierra Pres. Council, Inc.

v. Tahoe Reg’l Planning Agency, 228 F.3d 998, 9991000 (9th Cir. 2000) (Kozinski, J., dissenting from

denial of rehearing en banc). The only question was

when the wait becomes unreasonable.

Not so. In Tahoe-Sierra Preservation Council,

Inc. v. Tahoe Regional Planning Agency, 535 U.S.

302 (2002), the Court considered whether a yearslong building moratorium around Lake Tahoe

qualified as a per se taking. The Tahoe plaintiffs

wanted to build houses on residential lots. That’s

exactly what the Lucas plaintiff had wanted to do.

But Tahoe distinguishes Lucas as a case confined to

permanent takings. Id. at 330-31. (Said another way,

Tahoe guts Lucas. See Echeverria, supra, 23 UCLA

J. Envtl. L. & Pol’y at 173.) What matters when the

pertinent state action is temporary, Tahoe says, is

whether the plaintiff can pass the Penn Central test.

535 U.S. at 342. When a court assesses a temporary

regulatory taking claim, the length of a delay is just

“one of the important factors” it should consider. Id.

B.

But Where Are We?

It has been remarked that the “exact role of an

‘extraordinary delay’” in a proper takings analysis is

now “somewhat confusing.” Daniel L. Siegel &

Robert Meltz, Temporary Takings: Settled Principles

and Unresolved Questions, 11 Vt. J. Envtl. L. 479,

486 (2010). That understates things. Government

delay was not remotely an issue in Penn Central,

13

and the Penn Central test, unfruitful even in its

native soil, fares worse yet when uprooted.

Courts cannot even agree on how government

delay and Penn Central connect. Some say that

extraordinary delay sits within the Penn Central

test—it is a factor to be considered, alongside others,

holistically. See State ex rel. Duncan v. Village of

Middlefield, 898 N.E.2d 952, 956-57 (Ohio 2008);

Byrd v. City of Hartsville, 620 S.E.2d 76, 81 (S.C.

2005). Others treat it more as sitting in front of the

test—a plaintiff must show extraordinary delay,

considered by itself, and then satisfy Penn Central.

See Appolo Fuels, Inc. v. United States, 381 F.3d

1338, 1351-52 (Fed. Cir. 2004); Aloisi v. United

States, 85 Fed. Cl. 84, 93 (2008); see also Siegel &

Meltz, supra, 11 Vt. J. Envtl. L. at 492 (arguing that

a plaintiff must show extraordinary delay to “ripen”

her claim and get to the Penn Central test). At least

one court has suggested that a plaintiff can still skip

Penn Central altogether if she has suffered

extraordinary delay plus bad-faith government

conduct. See Wild Rice River Estates, Inc. v. City of

Fargo, 705 N.W.2d 850, 859 (N.D. 2005). This

position is not necessarily foreclosed by Tahoe, which

declines to consider a forfeited bad-faith theory. 535

U.S. at 333-34.

Although it assures the nation’s property holders

that “justice will be best served” by applying “the

familiar Penn Central approach” to cases of delay, id.

at 342, Tahoe says precious little about how the

Penn Central test will work in such cases. The Court

declined to apply the test to the dispute before it. Id.

at 334. “It may well be true,” the majority suggested,

in its only real stab at guidance, that “any

14

moratorium that lasts for more than one year should

be viewed with special skepticism.” Id. at 341

(emphasis added). At least one judge has taken this

aside seriously. See Ecogen, LLC v. Town of Italy,

438 F. Supp. 2d 149, 162 (W.D.N.Y. 2006). Usually,

however, it is ignored. See, e.g., Appolo Fuels, 381

F.3d at 1351-52 (“The eighteen-month delay here is

far short of extraordinary.”).

It was sorely neglected in the case at hand. The

court below assumed that, under Penn Central, it

must look at (1) “the economic impact of the

regulation on the claimant,” (2) the regulation’s

effect on “the claimant’s reasonable, distinct

investment-backed expectations,” and (3) “the

character of the government action.” Pet. App. 42-43.

The court acknowledged, when considering the first

factor, that government delay has harmed the

Bottinis, who “have had to pay a mortgage for . . . an

empty lot” while waiting for a permit. Id. at 43. But

when it turned to the second and third factors, the

court stopped talking about time. The second factor,

it said, “weighs strongly against the Bottinis,”

because, when they bought the property, they were

not sure (a) what kind of house would ultimately be

there (the old one or a new one) or (b) whether the

property would need to undergo an environmental

review. Id. at 43-45. The third factor supposedly cut

against the Bottinis, meanwhile, because “the City

did not physically invade or appropriate the Bottinis’

property.” Id. at 47.

The court flirted with sophistry when, in its

analysis of the second factor, it contended that

although someone who wants a home on his lot has

takings protection, someone who wants a home,

15

either home A or home B, does not. More to our

point, the court missed that someone who invests in

land has a “reasonable” and “distinct” expectation

that the government will not deliberately impose

extraordinary delays, such as by ordering

environmental reviews of vanished buildings or

taking frivolous interlocutory appeals. As for the

third factor, it is true that, over the many years the

Bottinis have been chasing a permit, the City has

not invaded or seized ownership of the property. But

time is a long thing, and at some point the

“character” of government inaction over a piece of

land must equal “appropriation” of it. “Governmental

policy is inherently temporary while land is

timeless.” Tahoe, 228 F.3d at 1001 n.1 (Kozinski, J.,

dissenting from denial of rehearing en banc). There

is therefore “no clear-cut distinction between a

permanent prohibition and a temporary one.” Id.

The court failed to account for this.

Penn Central, by the way, happens to mention

one “government action,” the “character” of which

suggests a taking: “interference with property” that

resembles “a physical invasion.” 438 U.S. at 124. The

proffering of this one example seems to have

convinced many courts, including the court below,

that “the character of the government action” factor

really just asks, “Did the government invade or seize

the property?” It’s not at all obvious that that’s right.

Other courts use the third factor to assess the

character of the government action, including, in a

case such as this one, “the nature of the permitting

process” and the government’s “reasons for delay” in

issuing a permit. Cooley v. United States, 324 F.3d

1297, 1306-07 (Fed. Cir. 2003). Some courts take

“character of the government action” literally, in

16

other words, while others don’t. Id. As usual in this

area, disorder reigns.

At any rate, the court below thought itself

entitled to “dispose of a takings claim” based on just

“one or two” of the Penn Central factors. Pet. App.

47. Tracking this assumption, it rejected the

Bottinis’ claim “in particular” for want of a proper

investment-backed expectation—the second factor.

Id. What the court did, in effect, was divide the Penn

Central factors into three discrete boxes, place

government delay in box 1, and then decide the case

based on the content of box 2 (and perhaps box 3). To

be left in box 1, when the case turns on box 2 (and

maybe box 3), is to be discarded. The court’s

disjointed approach removed government delay from

the equation.

The court below followed other California Courts

of Appeal in concluding that its keyhole version of

Penn Central is blessed by Ruckelshaus v. Monsanto,

Co., 467 U.S. 986 (1984), in which this Court

disposed of a regulatory takings claim while looking

only at investment-backed expectations, id. at 1005.

Contrast California’s constricted approach with the

Federal Circuit’s “gestalt approach”—an open-ended

“review of all relevant circumstances surrounding

the alleged taking by the Government.” Bass, 381

F.3d at 1370. This approach finds support in Justice

O’Connor’s concurrence in Palazzolo v. Rhode Island,

533 U.S. 606, 633-34 (2001), and in her opinion for

the Court in Lingle, 544 U.S. 528, which says that

the Penn Central test is a general appraisal of “the

magnitude of a regulation’s economic impact and the

degree to which it interferes with legitimate

property interests,” id. at 540. Then again, as we’ve

17

seen, the Federal Circuit elsewhere appears to

assume that a plaintiff must establish extraordinary

delay and then proceed to the Penn Central test. And

this approach too finds support in the Court’s case

law. Agins, the very case that introduces the concept

of delay to the Takings Clause, suggests that only

extraordinary delay can turn a change in a

property’s value pending permit approval from an

“incident of ownership” into a taking. 447 U.S. at 263

n.9. By this logic, an extraordinary delay is just a

ticket to Takings-Clause scrutiny.

The part that bad faith plays in temporary

regulatory takings is another potent source of

confusion. Some judges treat bad faith as something

like a necessary condition just for getting to the Penn

Central test. See Cooley, 324 F.3d at 1307. Others, as

we noted earlier, suggest that bad faith, when

coupled with extraordinary delay, is a sufficient

condition for establishing a taking. See Wild Rice,

705 N.W.2d at 859.

It seems obvious that bad faith must play some

role in the Penn Central analysis. Penn Central says,

after all, that a property holder’s “investment-backed

expectations” matter. What expectation could be

more fundamental than that your government—a

government of the people, by the people, for the

people—will not treat you like a serf? Perhaps a

citizen cannot reasonably expect efficient, or even

helpful, government. But he can reasonably ask that

his government not attack him, vilify him, and take

“contradictory and confusing positions” in a by-anymeans-necessary approach to opposing his modest

efforts to make his way in the world. Pet. App. 21-22,

30 n.9. “Whatever it takes,” “throw out the

18

rulebook,” and “no holds barred” are improper

mantras for a government bent on getting what it

wants from people. Some limit must exist on how

much the government may force a property owner to

“dance” to its “tune.” Sackett v. EPA, 566 U.S. 120,

132 (2012) (Alito, J., concurring). Some limit must

exist on the government’s ability to jerk around a

permit seeker.

There is, however, some doubt about whether the

Takings Clause ever provides the right avenue for

challenging bad-faith conduct by the government.

Agins declares that a property regulation that “does

not substantially advance legitimate state interests”

qualifies as a taking. 447 U.S. at 260. Lingle

disagrees. “Instead of addressing a challenged

regulation’s effect on private property,” it observes,

“the ‘substantially advances’ inquiry probes the

regulation’s underlying validity.” 544 U.S. at 543.

But a regulation can be invalid without much

burdening a person’s property rights. Id. at 542. A

complaint about irrational government conduct, qua

irrational government conduct, has the ring of a dueprocess claim rather than a takings claim. Id. And

what can be said of irrational state conduct can

equally be said of bad-faith state conduct. If the

government denies you a permit in bad faith, but the

denial has little effect on the value of your land, it’s

unclear what the bad faith has to do with the

Takings Clause. In such a case, the government

hasn’t taken anything.

Lingle was issued after Tahoe. But Tahoe, unlike

Lingle, directly addresses extraordinary delay. And

in doing so, Tahoe suggests that bad faith is relevant

to a takings analysis. “Were it not for the findings of

19

the District Court that [the government] acted

diligently and in good faith,” the Court wrote, “we

might have concluded that [it] was stalling.” Tahoe,

535 U.S. at 333. That conclusion, in turn, “arguably

could [have] support[ed]” a takings claim. Id. So we

have an older, on-point case that implies, without

explanation, that bad faith is part of the Penn

Central test; and a newer, off-point case, the logic of

which excludes bad faith from that test. Which case

are the lower courts to apply?

Of course, such quandaries are only to be

expected when a test is used so far from the

conditions that produced it in the first place.

*

*

*

When a plaintiff tries to establish a temporary

regulatory taking, is extraordinary delay an

antecedent to, or rather a part of, the Penn Central

test? Is that test a three-part “if-then” test, or a

many-factor “totality of the circumstances” test?

Does the test view delays of more than a year with

special skepticism? Do the test’s investment-backedexpectations and character-of-government-action

prongs encompass only the kinds of expectations or

actions explicitly discussed in Penn Central? And is

bad-faith government conduct integral to, merely

useful in, or utterly irrelevant to establishing that a

temporary regulatory taking has occurred?

These questions are not creating problems

because the lower courts are misunderstanding or

defying this Court’s precedents on extraordinary

delay and temporary regulatory takings. They are

creating problems, rather, because those precedents

20

are confused and confusing. Only this Court can

clear up what it means to say in this area. It should

do so.

CONCLUSION

The petition should be granted.

Respectfully submitted,

October 8, 2019

CORBIN K. BARTHOLD

Counsel of Record

CORY L. ANDREWS

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

cbarthold@wlf.org