Reply Brief — Agins v. City of Tiburon
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Supreme Court of the United
Supreme Court, U.S.
k
ik, es ee
IN THE APR 10 1980
ODAK, JR., CLERK
October Term 1979
No. 79-602
FOR ARGUMENT
DONALD W. AGINS AND BONNIE G. AGINS.
VS.
CITY OF TIBURON,
Appellee.
APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
APPELLANTS’ REPLY BRIEF.
GIDEON KANNER,
1440 West Ninth Street,
Los Angeles, Calif. 90015,
JOHN P. POLLOCK,
800 West Sixth Street, Suite 820,
Los Angeles, Calif. 90017,
REGINALD G. HEARN.
100 California Street, Suite 926,
San Francisco, Calif. 94111,
Attorneys for Appellants.
Appellants,
Parker & Son, Inc.. Law Printers, Los Angeles. Phone 724-6622
<tc rename
SUBJECT INDEX
pS 6 ee ee ees Shee Se
Preliminary Observations on Arguments of Appellee
EOE ES O08
A.
Appellants Contend That It Was Error for the
Court Below to Promulgate the Absolutist
Dogma That Just Compensation Is Never
Available for Regulatory Takings; the Con-
verse Arguments Ascribed to Them Are Spuri-
Large Judgments Can Threaten Only if the
Constitution Is Being Violated on a Large
Scale; if so, All the More Reason for This
Court’s Corrective Intervention ...........
The Invalidation ‘‘Remedy’’ Is de Facto Not
Available in California ..................
The Professed Nobility of Appellee’s Asserted
Goals Does Not Justify the Use of Unconstitu-
ES re ae ee
By Claiming That it Cannot Tell When it Vio-
lates the Constitution Appellee Contradicts the
Basis of its Central Argument ............
Appellee’s Notion of ‘‘Chilling’’ Stands
American Constitutional Jurisprudence on its
Head, by Demanding That Constitutional Vio-
er Sr ee
Appellee’s Arguments Ignore the Concept of
Fairness That Is the Cornerstone of the Con-
EGRET Sy EES
12
16
18
19
il
Page
z.
The Opinion Below Squarely Deals With the Constitu-
tional Issues of Takings and Remedies, and Ex-
pressly Belies Appellee’s ‘‘Administrative Re-
ge ee es ee eee ee
The Present Record Makes It Clear That the Subject
Property Has Been Rendered Useless and Worth-
less; Any Factual Controversy on That Point That
Appellee Wishes To Pursue Should Be Raised in a
pi, YPC e rete ees CTE
The Nature of Property and the Effect of Regulations
on it Lead to the Conclusion That a ‘‘Taking’’ Need
Not Encompass the Entire Fee Simple Absolute
Title, But May Involve Only the Taking of a Particu-
lar Property Right, With Just Compensation
pe eer en eee ee
5.
The Case at Bench Provides an Opportunity to Strike a
Balance Between the Public Interest and Environ-
gg | PTE PET CURE ETT CLE TEE
IS cok BAD OA et are ie eed es aac
22
23
26
i ow wel
iil
TABLE OF AUTHORITIES CITED
Cases Page
Arastra Limited Partnership v. City of Palo Alto, 401
F.Supp. 962 (1975, N.D. Cal.) 417 F.Supp.
URE Ogg are Here irate Frm eens We testes 25, 28, 29
Armstrong v. U.S., 364 U.S. 40 (1960)............ 33
Askew v. Gables-by-the-Sea, 33 So.2d 56 (1976,
UNIS Bohlen e Le ee nah ot dats cal diase othe 6
Benenson v. U.S., 548 F.2d 939 (1977, Ct.Cl.) ..... 28
Berman v. Parker, 348 U.S. 26 (1954)............. 33
Boston Chamber of Commerce v. Boston, 217 U.S. 189
c.g ies RR Aire ee ieee eri eee 28
Brock v. Superior Court (1952) 109 Cal.App.2d 594,
ph ” __REREISRN as SPUN Sais Ores 0 ea ing anes 22
Buchanan v. Warley, 245 U.S. 60917) ............ 30
Butz v. Economou, 438 U.S. 478 (1978) ........... 7
Bydlon v. U.S., 175 F.Supp. 891 (1959, Ct.Cl.) .... 28
City of Austin v. Teague, 570 S.W.2d 389 (1978,
BN hint 6-ace eck aes esata Ged Ne ea ae wea 29
City of East Lake v. Forest City Enterprises, 426 U.S.
I 55 eh A So he eee ON lee hs 22
Clifton v. Berry, 259 S.E.2d 35 (1979, Ga.) ........ 7
Commissioner of Natural Resources v. S. Volpe & Co.,
yr WS Re | ea reer 17
County of Los Angeles v. Berk, 26 Cal.3d 201, ...
Rk Snap. +00 SE wo Ns hpeip od ows es Oo 5
Dahl v. City of Palo Alto, 372 F.Supp. 647 (1974, N.D.
8 SE ese PO re et re ey ae ee ee 23
Damico v. California, 389 U.S. 416 (1967)......... 23
Davis v. Passman ... U.S. ..., 99 S.Ct. 2264
Eee eR eee er Eee yt ef eRe 8, 9
iV
Page
Davis v. Wechsler, 263 U.S. 22 (1923) ............ 4
Drakes Bay Land Co. v. U.S., 424 F.2d 574 (1970,
Ct.Cl.) and 459 F.2d 504 (1972, Ct.Cl.) ......... 28
Eck v. City of Bismark, 283 N.W.2d 193 .......... 6
Estuary Properties, Inc. v. Askew, ... So.2d ... (1979,
POR ADD.) 0 60:ds cece pike ieeeusdewndaenee een 6, 31
Euclid v. Ambler Realty Co., 272 U.S. 365
CRRBOD.. oan koh + adaceane eet cee 24, 33
Fred F. French Investing Co. v. City of New York, 350
N.E.2d 381, 385 N.Y.S.2d 5 (1976) ............ 6
Frisco Land & Mining Co. v. State, 74 Cal. App.3d 736,
149 Cal. Retr. GEO CIOTT)s. «nos cca cetide saccess 5
Furey v. City of Sacramento, 24 Cal.3d 862, 157
Cal.Rptr. 684, 598 P.2d 844 (1979) ............. 12
Gates v. Collier, 501 F.2d 1291 (1974, Sth Cir.) .... 11
Gerlach Live Stock Co. v. U.S., 339 U.S. 725
CHD es dn 6 ee ee ee 33
Gordon v. City of Warren, 579 F.2d 386 (1978, 6th
COED son nink ae bins beck enna ee eet see 30, 31
Hermanson v. Board of County Comm’rs, etc., 595 P.2d
GB6 C2979, CUR AMD) 5s ibs Rep nee ane ees dante 7
Hillside Water Co. v. City of Los Angeles, 10 Cal.2d
G7e, TPB Ut (IG i os envi cee 4
Hollister Park Investment Co. v. Goleta County
Water Dist., 82 Cal.App.3d 290, 147 Cal.Rptr. 91
COOGEE ob 500540 sad Fe ea SERS heen a eee 5
Hamer v. Town of Ross, 59 Cal.2d 776, 31 Cal.Rptr.
ee 2 By fl). oe rrr eS 12
Hughes v. Washington, 389 Us. a0 (9967) .....%% 4
International Paper Co. v. United States, 282 U.S. 399
GE ioe a WS « ctadlv a jens wwe kw gle es wn 19
Vv
Page
Jacobson v. Tahoe Regional Planning Agency, 566 F.2d
es | 8 Reg) ee Rett At OS Be 7
Jones v. People, 22 Cal.3d 144, 148 Cal.Rptr. 640, 583
NGS 5 duib-t avai spies OB seed cae 30
Kaiser Aetna v. United States, ... U.S. ..., 100 S.Ct. 383
RRs aN as leh olatin'e v.o,5-bice avon diene de ay oo
Keystone Associates v. State, 333 N.Y.S.2d 27 (1972,
App.Div.) aff’d. 307 N.E.2d 254 (1973, N.Y.) ... 31
Keystone Associates v. State, 371 N.Y.S.2d 814 (1975,
Ct.Cl.) rev’d. 389 N.Y.S.2d 895 (1976, App.Div.)
rev'd. and remanded 45 N. 7 2d 894, 383 N.E.2d 560
Se EU fio so Be indians <4 <8 ab baie 0 as 29
Kimball Laundry Co. v. United States, 338 U.S. 1
ie Bahai ad acbiaitin ii ole de wine 444 diem eine 28
Klopping v. City of Whittier, 8 Cal.3d 39, 164 Cal.Rptr.
Pe ge pk ES . pe. Ree ee ee oe 5
Lake County Estates v. Tahoe Regional Planning
Agency, «.. U.S...» .50- b.Ed:2d 401
CR hk flew Sa dias Seas kk) Saw COR ie 6, 7,: a5
Lomarch Corp. v. City of Englewood, 237 A.2d 81
Se WEN Hite eee Ka Fi les bw os shen wae 29
Lynch v. Household Finance Corp., 405 U.S. 538
ase CEs Ceiba howe eh TUR cis ince a 20
Macallen v. Massachusetts, 279 U.S. 620 (1929) .... 17
Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803) ..... 10
Moore v. East Cleveland, 431 U.S. 494............ 23
Moviematic Industries Inc. v. Dade County, 249 So.2d
oo te ee ee eee ee oe ee ee oe 6
Nectow v. Cambridge, 277 U.S. 183 (1928) ...... a 2
Orsetti v. Fremont, 80 Cal.App.3d 961, 146 Cal.Rptr. 75
OLE, vA GWE as Nase Die eal d aca ee Sere ah 5
vi
Page
Peacock v. County of Sacramento, 271 Cal.App.2d 848,
pee SOA ONG |S perireers Darin eee ari 28
Penn Central Transportation Co. v. City of New York,
Ge GA PRP bee ob bei Done bene sa 4,' 30
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
| Rene tee reed Pere a ed eee 33
Pete v. U.S. 531 F.2d 1018 (1976, Ct.Cl.), and 569 F.2d
Se I 5 cb edie ow sd che wae ths velees Kem es 28
Portsmouth Harbor L. & H. Co. v. United States, 260
eT Soi a U4 WA eels hs ea plie cee ae us 26
Raley v. Calif. Tahoe Regional Planning Agency,
68 Cal.App.3d 965, 137 Cal.Rptr. 699
(ods AES ee rere Sees ree ee Cee 15, 16, 27
Richmond Elks Hall Assn. v. Richmond Redevelopment
Agency, 561 F.2d 1327 (1977, 9th Cir.) ......... 29
San Antonio River Authority v. Garrett Bros., 528
S. Wi2d 266 (1975, Tex. Civ. App.) ... 5.0 2ce050 30
San Diego Bldg. Contractors Assn. v. City Council,
13 Cal.3d 205, 118 Cal.Rptr. 146, 529 P.2d 570
SE sb Wine tiln ck ba cues wa eacaes ea 4 oe 22
Sauer v. New York, 206 U.S. 536, (1907) ......... 30
Sixth Camden Corp. v. Township of Evesham, 420
Pe PEC UIO, MUD Wisk t ce vccceee exicwene 31
Sneed v. County of Riverside, 218 Cal.App.2d 205, 32
ee Be or er re eee eee 29
State v. Superior Court (Veta) 12 Cal.3d 237, 115
Cal.Rptr. 497, 524 P.2d 1281 (1974) ......... 3, 24
Strumsky v. San Diego County etc. (1974) 11 Cal.3d 28,
212 Cal. Row, GOS) SAO P.Be FO isi eee ceca. 22
Terry Trading Corp. v. Barsky, 210 Cal. 428, 292
PAE db kiss bss didi s cabs SUN Coe eee be 2
ee ee
Read a0Eal oe tote a
met Ch
Vii
Page
United States v. Causby, 328 U.S. 256 (1946) ...... 29
United States ex rel. TVA v. Powelson, 319 U.S. 266
CRITE \ oie: ahn:a:a-0 aca Wate Ors pee ee ecole 30, 31
United States v. General Motors Corp., 323 U.S. 373
CEIPOED i sd ula vied nuio s ke RUE OL eae bares 28
United States Trust Co. v. New Jersey, 431 U.S. 1
CIEE ows ik] cb eee ewe tae ee 16, 17, 18
Washington Market Enterprises, Inc. v. City of Trenton,
coe we | oy } Ree we ee 30
Watson v. Memphis, 373 U.S. 526 (1963) ......... 1]
Wulzen v. Board of Supervisors (1894) 101 Cal. 15, 35
F. Fee yi vde bea Dives eee bere eee eae bees 22
Statutes
California ‘Civil Code, Sec. GSO in inc Sie e ee 30
California Code of Civil Procedure, Sec. 452 ....... 2
California Code of Civil Procedure, Sec. 1094.5..... 22
California Constitution, Art.I, Sec. 1 .............. 21
California Government Code, Sec. 6953 ........... 31
California Streets & Highways Code, Sec. 5503 ..... 12
United States Code, Title 42, Sec. 1983......... 7; =
United States Constitution, Fifth Amendment ....... 24
United States Constitution, Fourteenth Amendment... 30
Textbooks
American Bar Association, Code of Professional Re-
sponsibility, Canon 7, Ethical Consideration,
hs Seis whe sk 0a ee a 8 Sk 13
A Pee eee ee 30
Comment, Developments in the Law: Zoning, 91 Harv.
es Oh Ay OE sks da bate pele de od es 21
25 Hastings Law Journal, Comment, p. 1165 ....... 15
Vili
Page
Huxtable, Inverse Condemnation — Its Structures, Ad-
vantages and Pitfalls, (1977 Institute of Planning, Zon-
ing and Eminent Domain), Southwestern Legal Foun-
ee i ee ee eee ees 9
Jackson, The Task Maintaining Our Liberties: The Role
of the Judiciary, 39 A.B.A. Journal, pp. 961, 963
GRUDGE ssh de eae aedshgesd Soy Cie eeee baa 17
Marks & Taber, Prospects for Regional Planning in
California, 4 Pacific Law Journal, pp. 117, 118,
GO vs oa ened gelbienkigs den deity ou ee aekas 14, 15
Michelman Property, Utility and Fairness: Comments on
the Ethical Foundations of ‘‘Just Compensation’’
Law, 80 Harv. L.Rev. pp. 1165, 1181 (1967). 10, 11
Note: De Facto Takings and the Pursuit of Just Compen-
sation, 48 Fordham L. Rev. (1948) p. 334........ 6
Sax, Takings and Police Power, 74 Yale Law Journal,
pp. 26, 62-63-1964) ..:..cccecees steeds. 32, 33
Traynor, No Magic Words Could Do It Justice, 49 Cal.
Bn 5 I GES; GR TEED 86 vce cca tet ceetens 9
CON ae 3 ON atid de eat O00 EBA BOYS etic ata BRE
ii WIPE AON, shen
IN THE
Supreme Court of the United States
October Term 1979
No. 79-602
DONALD W. AGINS and BONNIE G. AGINS,
Appellants,
vs.
CITY OF TIBURON,
Appellee.
APPEAL FROM THE SUPREME COURT OF CALIFORNIA
APPELLANTS’ REPLY BRIEF.
Introduction.
The basic strategy of Appellee and most of its amici is
to treat this controversy not quite as it factually is but to
assume that what is in issue here is “‘pure’’ regulation; /.e.,
a regulatory enactment unaccompanied by any governmental -
acquisitory purpose or activities. To that end the record
reflecting the Appellee’s plans, studies, announcements and
appropriations, specifically and avowedly aimed at acqui-
sition of the subject property as an ‘‘indispensable’’ part of
city-owned open space, as well as the on-again, off-again
condemnation, and their combined impact on the utility and
value of the subject property are virtually disregarded.
Put another way, Appellee and friends simply ignore
Appellants’ arguments presented in Appellants’ Brief at pp.
26-30. More importantly, they likewise ignore this Court’s
eat is.
analysis of taking criteria enumerated in Penn Central
Transportation Co. v. City of New York, 438 U.S. 104, 128
(1978), and emphasizing that governmental actions that may
be characterized as acquisitions of resources constitute a
factor of peculiar significance in the highly fact-dependent
inquiry as to whether a taking has occurred. In contrast, in
Appellee’s hands this important factor is treated as if it had
no significance or did not exist.’
Therefore, Appellants must note at the outset that virtually
all of the arguments of Appellee and friends are based on
a factually deficient premise. What is alleged here is a de
facto deprivation of all utility and value of the subject prop-
erty brought about by the totality of Appellee’s entire course
of conduct. Unless these facts are kept in mind (as they
must be, this being a case of dismissal following a general
demurrer), the pertinent legal principles cannot be properly
applied, and no amount of arguments going to abstract legal
concepts or invoking public policy can make up for the
crucial failing of not dealing candidly with all the facts of
this case. To that extent, virtually all legal arguments pre-
'To be sure, the Solicitor General (Brief of the United States, at pp.
21-22, fn.11) strives to gloss over this issue in a lengthy footnote.
Unfortunately, that argument does riot address the cumulative totality
of all of Appellee’s activities and their combined impact on the subject
property (nor can it, that being a clear issue of fact that cannot be
honestly dealt with, absent evidence and consideration of factual in-
ferences). Rather, that argument exemplifies so-called *‘salami tactics’’;
i.e., it evades the issue by attempting to separate it into pieces, and
then addressing one piece at a time as if the others did not exist. That
ingenious approach cannot be squared with this Court’s commitment |
to case-by-case adjudication of the peculiar facts of each individual
case. Moreover, under California law (this being an appeal from a
dismissal following the sustaining of a general demurrer without leave
to amend as to the inverse condemnation cause of action) the allegations
_ of the Appellants’ complaint must be liberally construed, and all rea-
sonable inferences, favorable to the pleader indulged in. Cal. Code of
Civil Procedure §452. Terry Trading Corp v. Barsky, 210 Cal. 428,
438, 292 P. 474.
aa ee aca ea. ee A
=—
a
sented by Appellee and its amici are inherently deficient’
because they lack a proper, honestly articulated factual basis
pertinent to this controversy as actually presented. Appel-
lants respectfully ask the court to bear these considerations
in mind in considering this case.
It should also be noted by way of introductory clarification
that some of Appellee’s amici seem to be confused as to
California law of remedies. Appellants sued seeking two
remedies: (a) just compensation by way of inverse condem-
nation, and (b) declaratory relief by way of determination
of unconstitutionality of the ordinance. The California Su-
preme Court denied the latter form of relief because under
California law declaratory relief may be used only to chal-
lenge the facial constitutionality of laws (see State v. Su-
perior Court (Veta), 12 Cal.3d 237, 251, 115 Cal.Rptr.
497, 524 P.2d 1281 (1974)). The court below thereby did
not determine that the ordinance worked no taking (as er-
roneously asserted by some of Appellee’s amici), but only
that such a taking did not appear on the face of the ordinance.
That, of course, in no way deals with the question of whether
(notwithstanding the language of the ordinance) any réa-
sonable use can in fact be made of the subject property,
Nectow v. Cambridge, 277 U.S. 183 (1928).
’This is implicitly recognized in the voluminous brief of the Con-
servation Foundation, et al., which unabashedly goes outside the record
in an effort to conduct something in the nature of a trial in writing.
Appellants reject the invitation to engage in such an endeavor;this is
no place for it. They offer as a short reply the following query: if
Appellants’ cause is nearly as factually deficient as asserted by these
amici, would it not follow that the amici should welcome a trial on on
the merits, where—if their argument has any merit—Appellants would
quickly suffer a defeat’? Moreover—and far more importantly—this is
the United States Supreme Court, not a trial court. This Court decides
national constitutional law and policy; it does not sit as a trier of fact
for Marin County. In short, if a determination of facts and factual
inferences is what is wanted, the cause ought to be remanded for trial.
ey Eee
In other words, whether an effective taking of the subject
property occurred in fact (i.e., by the impact of the ordi-
nances and the other city acts alleged, in their totality),
could only be reached by the inverse condemnation action
which—until the California Supreme Court spoke in the
case at bench’—was the way in which to examine the impact
of the specific facts on the aggrieved owner’s property
rights. Moreover, the issue is not what any state deems to
“be controlling; this is an avowedly federal constitutional
issue, and it is for this Court to say what type of factual
inquiry into the facts is required to establish a taking, and
what remedy is appropriate. As Mr. Justice Holmes put it
in Davis v. Wechsler, 263 U.S. 22, 24 (1923):
‘**Whatever springes the State may set for those who
are endeavoring to assert rights that the State confers,
the assertion of federal rights, when plainly and rea-
sonably made, is not to be defeated under the name
of local practice.’’
1.
PRELIMINARY OBSERVATIONS ON ARGUMENTS OF AP-
PELLEE AND ITS AMICI.
The wide-ranging Appellee’s Brief and the avalanche of
amici briefs filed in its support make it appropriate to bring
the arguments contained there within some manageable
bounds, before addressing the specific legal arguments
‘It must be observed that (as noted by Clark, J., in his dissent below—
J.S.A., pp. 20-21, fn. 3) California has for a long time adhered to the
view that once a taking has occurred, public use was deemed to attach,
and the owner’s sole remedy was inverse condemnation; see e.g., Hill-
side Water Co. v. City of Los Angeles, 10 Cal.2d 677, 688, 76 P.2d
681 (1938). All of this law and its rationale were simply ignored by
the majority opinion below in a sudden change of state law. Cf. Hughes
v. Washington, 389 U.S. 290 (1967).
tee
sek Edis!
Bi NLT saa i iil ty RIEL
NE etn 5 Be a
aint
pec Se
sought to be made there. To that end some general prelim-
inary observations seem in order:
A. Appellants Contend That It Was Error for the
Court Below to Promulgate the Absolutist Dogma
That Just Compensation Is Never Available for
Regulatory Takings; the Converse Arguments As-
cribed to Them Are Spurious.
Appellee and its amici distort Appellants’ legal argument
to a shocking extent. Appellants do not contend that just
compensation is the only remedy in regulatory takings. A
fortiori, they do not contend that just compensation is or
ought to be payable in every case of regulation that results
in any diminution of private property values; indeed, the
imputation of the latter argument to Appellants is simply
intellectually dishonest. Appellants’ view is that the problem
of takings is so heavily dependent on the specific facts of
each individual case (as so often noted by this Court) that
their exploration in terms of impact on the subject property
and its aggrieved owner is indispensable in terms of fash-
ioning a .emedy. Thus, for example, to a landowner whose
ownership or interest in land has been completely wiped out
by regulatory maneuverings so that whatever he had is gone,
it is grotesquerie, right out of Franz Kafka’s writings, to .
be lectured about invalidation as a ‘‘remedy.’”*
“California case law increasingly involves cases in which landowners
lost their land by foreclosure while being compelled to joust with the
ever-turning regulatory windmills erected in their path by local entities.
See e.g., Jacobson v. Tahoe Regional Planning Agency, 566 F.2d
1353, 1366-1367 (1978, 9th Cir.); Orsetti v. Fremont, 80 Cai.App.3d
961, 146 Cal.Rptr. 75 (1978), Hollister Park Investment Coav. Goleta
County Water Dist., 82 Cal.App.3d 290, 147 Cal.Rptr. 91 (1978);
Frisco Land & Mining Co. v. State, 74 Cal.App.2d 736, 141 Cal. Rptr.
820 (1977). Also see, Klopping v. City of Whittier, 8 Cal.3d 39, 58,
104 Cal.Rptr. 1, 500 P.2d 1345 (1972), County of Los Angeles v. Berk,
rote & Fens fo ee P.2d .... (1980).
=
The issue before the Court is not Appellants’ supposedly
rigid pro-compensation view, but the California Supreme
Court’s absolutist pronunciamenato that just compensation
is never available, no matter how jlagrant the non-physical
taking accomplished by iand use regulation, and no matter
how severe its impact. That court simply set itself at war
with the principle of case-by-case adjudication that weighs
the facts of each controversy, and by fiat did away with the
monetary remedy, irrespective of the individual facts. It is
the correctness of that dogmatic proposition that is before
the Court for review, not its converse. Once that true issue
is confronted, Appellee’s assertion that the opinion below
rests on sound law collapses; it does so even on the very
authorities relied on by Appellee.”
Thus, in Fred F. French Investing Co. v. City of New
York, 350 N.E.2d 381, 385 N.Y.S.2d 5 (1976), the New
York Court of Appeals was careful to delineate areas where
just compensation dves remain available as a remedy for
a non-physical taking. (Even so, the New York position has
been soundly criticized; see, Note, De Facto Takings and the
Pursuit of Just Compensation, 48 Fordham L. Rev. 334
(1979)). So did the Supreme Court of North Dakota in Eck
v. City of Bismarck, 283 N.W.2d 193, 201. So did the
courts of Florida: Moviematic Industries, Inc. v. Dade
County, 249 So.2d 667, 672 (1977, Fla.App.); Estuary
Properties, Inc. v. Askew, .... So.2d .... (1979, Fla.App.);
Askew v. Gables-by-the-Sea, 33 So.2d 56 (1976, Fla.App.).
‘Needless to say, even on Appellee’s faulty premise, such state court
decisions are of little precedential authority in light of Lake County
Estates v. Tahoe Regional Planning Agency, .... U.S. .... 59 L. Ed.2d
401 (1979) The notion embedded in Appellee’s arguments, of the tenor
that such state court decisions are authoritative on the federal consti-
tutional point in issue, has a quaint, positively ante bellum quality.
A COI BO RE ct te hd
eS ba LOBEL LAP te le ERED AINE IE a, PAL OEE BE i
a
So did the courts of Colorado: Hermanson v. Board of
County Comm’rs., etc., 595 P.2d 694, 695 (1979,
Colo.App.).
The point is that these are all states whose courts opt for
the invalidation remedy as the primary remedy. Yet, they
all recognize as a matter of logic and basic fairness that
circumstances can and do arise where a non-physical taking
has occurred but a declaration of invalidation is useless
(such as where the injury has already occurred; see Butz v.
Economou, 438 U.S. 478, 504-505 (1978)). It is only Cal-
ifornia whose courts have taken the dogmatic position that
even where it can do no possible good, invalidation is the
only remedy.° ©
Above all, this Court was careful to note the availability
of the civil rights damage remedy in Lake County Estates,
Inc. v. Tahoe Regional Planning Agency, .... U.S. .... 59
L.Ed.2d 401 (1979).’
Thus, any rigid, unyielding absolutism that may be pres-
ent in this case lies on the Appellee’s, not Appellants’, side
of the argument.
Please note that since the earlier briefing by Appellants yet another
state court opted in favor of inverse condemnation rather than man-
damus: Clifton v. Berry, 259 S.E.2d 35 (1979, Ga.). For a concise
survey of the division of states on this issue see the Jurisdictional
Statement (hereafter cited as J. S.) at pp. 19-22, and [Appellants’]
Response to Motion to Dismiss or Affirm, at pp. 12-13.
In connection with Lake County Estates, Appellants note with be-
musement reliance by Appellee and some of its amici on Jacobson v.
Tahoe Regional Planning Agency, 474 F.Supp. 901 (1979, D. Nev.),
in which a trial judge apparently defied this Court, and on remand
purported to rule that in spite of the plain language of 42 U.S.C. §1983
creating liability ‘*. . . in an action at law . . .’’, and in spite of Lake
County Estates, he would afford no such remedy, and then presumably
for good measure refused to entertain a plea for a non-monetary remedy
as well, and dismissed the action. While no doubt unintended by Ap-
pellee, that decision provides a penetrating commentary on the state
of pertinent law, and the attitude of some toward property rights—an
additude that could stand some corrective action by this Court.
—
B. Large Judgments Can Threaten Only if the Con-
stitution Is Being Violated on a Large Scale; if so,
All the More Reason for This Court’s Corrective
Intervention.
Appellee (and particularly its amici) can scarcely be se-
rious when they intone their doomsday cry of impending
fiscal catastrophe. If ever there was an argument that proves
too much, this is it.
If a dramatic ‘‘financial disaster’’* threatens, that can only
mean one thing (assuming the argument to be anything but
frivolous): private property is being confiscated on a large
scale. As this Court noted in Davis v. Passman, .... U.S.
...., 99 §.Ct. 2264, 2217 (1979), damages can only accrue
when the Constitution has been violated. Surely, the parties
making such assertions are not seriously contending that the
American judiciary is endemically unable to distinguish
between meritorious and frivolous claims.’ Such implicit
argument is itself frivolous; as every lawyer with pertinent
experience knows, an inverse condemnation suit undertaken
on behalf of an owner is a formidable task with victory
“Brief of the Conservation Foundation, et al., at p. 45
*But then again, see amicus brief of State of California, p. 51, fn.
21, which unblushingly deplores the very essence of the flexible case-
by-case approach to taking problems, that this Court has repeatedly
endorsed in recent cases. Given the State’s professed horror at the
prospect that trial judges tend to resolve issues before them on the basis
of their **. . . individualized analysis of the conflicting evidence”’ (/d.),
one is left to wonder as to how the State proposes to resolve individual
disputes in the courts. This bizarre argument seems to be premised on
the avowed notion that courts ought to stultify their most basic function
of adjudication for the sake of administrative convenience (/.¢., to allow
a regulatory agency ‘“‘to draw a hard and well-defined line as to the
permissible extent of its powers’” as opposed to *‘that variable reality”’
of case-by-case adjudication—-/d.). This is nothing short of saying that
the courts should not be permitted to consider the constitutionality of
administrative acts as applied, lest it interfere with regulatory agencies’
‘line drawing”’. That does not leave much of judicial pre-eminence in
constitutional matters.
TE Se
. a 9 I OO |
2h SED amen os
er.
an
elusive and just cofnpensation long delayed. It is a drastic
measure of last resort. (See Huxtable, Jnverse Condemna-
tion—Its Structures, Advantages and Pitfalis, 1977 Institute
on Planning, Zoning and Eminent Domain, Southwestern
Legal Foundation, 219, 247-250).
Such arguments were probably best dealt with by the
great past Chief Justice of California, Roger Traynor, who
said of such doomsday cries:
‘*The tenet of lag, strengthening the already great re-
straints on the judge, is deservedly respected. It bears
noting, however, that it is recurringly invoked by astute
litigants who receive aid and comfort from law that is
safely behind the times with the peccadillos of yester-
year and has not caught up with their own. At the
slightest sign that judge-made law may move forward
these bogus defenders of stare decisis conjure up myth-
ical dangers to alarm the citizenry. They do sly injury
to the law when the public takes them seriously and
timid judges retreat from painstaking analysis within
their already great constraints to safe and unsound rep-
etitions of magic words from the legal lore of the year
before much too long ago.’’ Traynor, No Magic Words
Could Do It Justice, 49 Cal.L.Rev. 615, 620 (1961).
And so it is here; logic tells us that if large judgments
threaten, that can only mean that egregious and widespread
takings have occurred. Davis v. Passman, supra, 99 S.Ct.
at 2278. That, in turn, can only mean that the Constitution
is being violated on a massive scale by local regulatory
entities. That, with all due respect, is hardly a condition
that commends itself to protective judicial solicitude. Ap-
pellee and its amici seem to have forgotten that the polestar
of American constitutional jurisprudence is the judicial ad-
herence to the oath of office which commands each judge
— en
to respect the Constitution above all. That is the foutainhead
of American judicial supremacy in constitutional interpre-
tation: Marbury v. Madison, | Cr. (SU.S.) 137, 180 (1803).
Making the lot of the Constitution’s effectively self-con-
fessed large-scale violators easy, cheap and convenient
would not appear to fit that jurisprudential and ethical prin-
ciple.
Moreover, such arguments collapse even on their own
unsound premise; even if just compensation is not an ap-
propriate remedy, that still leads one ineluctably to the
concession that widespread takings are occurring (how else
could there be a threat of massive judgments?). What these
parties are thus really logically saying is that even if they
are right, tiie courts have been remiss in failing to invalidate
large numbers of regulations. Again, the argument is tan-
tamount to concession of massive constitutional violations.
And so, even-accepting arguendo the extravagant asser-
tion that a ‘‘financial disaster’’ threatens, the perpetrators
of such massive constitutional disregard had best mend their
ways rather than ask for a license to continue. These are
matters that, in Professor Michelman’s apt words, call
‘
‘. . . for resolute sophistication in the face of occa-
sional insistence that compensation payments must be
limited lest society find itself unable to afford beneficial
plans and improvements. What society cannot, indeed,
afford is to impoverish itself. It cannot afford to in-
stigate measures whose cost, including costs which
remain ‘unsocialized’ exceed their benefits. Thus, it
would appear that any measure which society cannot
afford or, putting it in another way, is unwilling to
finance under conditions of full compensation, society
cannot afford at all.”” Michelman, Property, Utility
and Fairness: Comments on the Ethical Foundations
An Ore ate Sear
LL eee eee
a ee
of ‘‘Just Compensation’’ Law, 80 Harv. L. Rev. 1165,
1181 (1967)."°
Appellee and its amici are shrilly demanding nothing less
than a rule that would favor the constitutional violator and
disfavor the individual citizen seeking effective (not theo-
retical) vindication of his rights protected by the Bill of
Rights. They are demanding nothing less than a rule that
would make concededly flagrant constitutional violation
cheap, convenient, and in the long run virtually risk-free.
They ought to be informed that here as elsewhere there is
no such thing as a free lunch.
7
*. . . [V]indication of conceded constitutional rights
cannot be made dependent upon any theory that it is
less expensive to deny than to afford them.’’ Watson
v. Memphis, 373 U.S. 526, 537 (1963).!'
"This astute observation spotlights the inherent immorality under-
lying the Appellee’s arguments, whereby in an inversion of the Robin
Hood principle, a conspicuously wealthy community would enhance
its enviable condition at the expense of one of its inhabitants, without
paying for what it gets. Such concerns reach some sort of nadir in the
amicus brief of the Federation of Hillside and Canyon Associations.
These denizens of legendary pinnacles of exclusivity, displaying the
most spectacular accumulation of wealth in the West, comprised in
disproportionate measure of business tycoons, show business person-
alities, successful professionals, and all sorts of entrepreneurs, come
before this Court and fervently denounce, of all things, profits (see /d.
at p. 29), thereby displaying not only awe-inspiring chutzpa but also
a lamentable lack of understanding of the present record (i.e., since
the courts below denied liability, the issue of measure of damages was
never reached; moreover, such measure does not include profits in any
event—see Appellants’ Brief, at pp. 33-34, fn. 14).
''For a detailed exploration of the principle that an asserted shortage
of funds is no justification for violation of constitutional rights, see
Gates v. Collier, 501 F. 2d 1291, 1319-1320 (1974, Sth Cir.). That
principle is a fortiori applicable here, considering the economic make-
up of Tiburon. In other words, what we have here is an unwillingness,
not inability, to pay for the acquisition.
a”, om
C. The Invalidation ‘‘Remedy’’ Is de Facto Not Avail-
able in California.
Appellee espouses a far more favorable view of the in-
validation remedy in California than reality justifies. Ap-
pellants stand by their contention that there has been no
reported case of invalidation on grounds of taking in Cal-
ifornia since Hamer v. Town of Ross, 59 Cal.2d 776, 31
Cal.Rptr. 335, 283 P.2d 376 (1963). Appellants further
suggest that—with all due respect—Appellee has misinter-
preted the case on which it principally relies (Furey v. City
of Sacramento, 24 Cal.3d 862, 157 Cal.Rptr. 684, 598 P.2d
844 (1979)), and has failed to note its literal and legal bottom
line. Furey did not invalidate anything; it merely remanded
the cause to the trial court with directions that at first ab-
solutely nothing be done (See 24 Cal.3d at 878), in defer-
ence to a foreshadowed special reassessment proceeding
(See 24 Cal.3d at 873), without a hint as to how or when
this would occur, or with what results. Moreover, Furey
gives no indication as to the nature of the reassessment: Is
it to be prospective only (i.e., involving reduction or can-
cellation of future payments)?, or, is it retroactive?; and if
the latter, is the entire assessment to be voided, or is there
to be a new reassessment in some lesser amount, and if so,
how determined?
In short, Furey invalidated absolutely nothing; it only
gave a vague promise of delay and more litigation virtually
certain to consume years,'* during which the owner contin-
ues to be denied the right of rational use."
"Since interest in such proceedings accrues at 7% (See Cal. Streets
& Highways Code §5503), and the current rate of inflation hovers
around 18%, little imagination is needed to envision the diligence with
which such reassessment is likely to be pursued.
''A most penetrating insight into the efficacy of this supposed ‘‘in-
validation’ is provided by the fact that the ostensible winner (i.e., the
landowner) went to the trouble and expense of seeking review by this
a
ee ee
ntitinis
As for the many cases collected at Appellee’s Brief, p.
28, fn. 24, not one of them struck down a regulation as
working a taking. What purpose their citation serves is thus
obscure. '*
And so it is with the other California post-1963 cases
cited by the parties; they speak for themselves, and need
not be further discussed.'° In none of them did a landowner
receive any relief for confiscatory regulations; not even in
cases of bankruptcy and foreclosure caused by inability to
use one’s land (See supra, fn. 4). What happens all too
often is that landowners seeking to use their land are con-
fronted with unceasing change in the regulations, until their
economically viable stake is effectively destroyed. That is
how it is done in California; no regulation is stable; nothing
is reliable; indeed, Appellee expressly concedes this.'° No
Court, while the ostensible loser stoutly resisted such review, proclaim-
- ing itself delighted with the decision of the California Supreme Court,
in which it supposedly lost. A most curious epilogue to this ‘‘invali-
dation.”’
‘On the other hand, this may be a somewhat Freudian insight into
prevailing California governmental mentality, suggesting the presence
of a view that whenever a landowner wins in California (on any
grounds), these days that is somehow remarkable.
'SExcept for one. In the amicus brief of the State of California (p.
50, fn. 20) one is startled to come across an assertion impugning the
integrity of Appellants’ counsel in discussing the Briggs case. Since
the State is correct in foreshadowing an imminent review of Briggs by
this Court, the Court will have an early opportunity to assess for itself
the accuracy of the State’s assertion that in Briggs the trial court awarded
damages ‘*. . . based solely on the permit denial’’ (/d., emphasis in
the original). For now, a pointed reference to A.B.A. Code of Profes-
sional Responsibility, Canon 7, Ethical Consideration 7-14 (on the
obligation of government counsel to present the courts with ‘‘a full and
fair record’’) should suffice.
'*At Appellee’s Brief, p. 25, fn. 21, Appellee takes pride in the fact
that *‘[zJoning, by its nature is not permanent’’, and then leaps to the
non sequitur that zoning, therefore, can never work a taking because
supposedly a ‘‘taking’’ must be permanent (this, of course, is simply
wrong; takings can and often are temporary, as more fully discussed,
infra). This further instance of an argument that proves too much, bears
an alarming kinship to the sad (if familiar) notion that a successful shell
game requires its operator to keep the shells in motion. Hardly an
endorsement of zoning.
oe
rights are said to be ‘‘vested’’ until construction is under-
way. This point is probably best made by an extended quo-
tation’’ from a California appellate court which felt bound
by precedent to deny relief, even though its conscience was
obviously shocked. This is California reality of today:
7
*. . . the denouement of this lawsuit leaves the mem-
bers of this court, as appellate chancellors in equity,
with a dissatisfied sense of justice. In hard fact, Raley
spent $150,000 in reliance upon a land-use permit law-
fully granted by a state instrumentality which was then
repudiated by a related state instrumentality. The two
agencies had overlapping membership and occupied
a relationship of mutual awareness and privity. (See
Lerner v. Los Angeles City Board of Education, 59
Cal.2d 382, 398-399 [29 Cal.Rptr. 657, 380 P.2d 97].)
‘Several factors combined to cause the developer’s
loss and prevent its redress. Raley is the victim of
maladroitly engineered environmental controls. Cali-
fornia’s current need for 200,000 new jobs each year
can be met only by a flow of venture capital. The
protection of the state’s remaining environmental
amenities unavoidably constricts this flow. The com-
peting needs of economic development and environ-
mental protection can be brought into balance only
through competent, speedy and authoritative decision-
making. *‘California is faced with a bewildering num-
ber of conflicting planning jurisdictions, none of which
have the responsibility or the capability to adequately
Carry out comprehensive regional planning. . . . Most
state-mandated planning is done by numerous overlap-
"Appellants beg the Court’s indulgence for the length of this quo-
tation; it needs, however, to be given full expression, coming as it
does, not from an interested party, but from the pen of one of the most
respected and articulate members of California’s appellate judiciary.
ome ete
ee GAAP ithe a TE ECL tt as cit ct, TPR Bie
|
por
ping single-purpose agencies (there are over 100 in the
state), each with a varying degree of authority to en-
force its plan.’’ (Marks & Taber, Prospects for Re-
gional Planning in California, 4 Pacific L.J. 117, 118,
124; see also, Comment, 25 Hastings L.J. 1165.)
‘*The mechanism at work here combined to ‘protect’
the environment by protracted and undependable ad-
ministrative procedures followed by years of litigation.
Only the most hardy and well-heeled can run so harsh
a gauntiet.'* Burdened by land costs, loan interest,
architectural, engineering and attorney fees, many en-
trepreneurs run out of money or heart or both long
before the finish line.
‘*Handmaiden of prevailing administrative anarchy is
the vested rights rule, as voiced by the authoritative
decisions cited earlier. The vested rights rule gives a
green light to administrative vacillation virtually up to
the moment the builder starts pouring concrete. The
rule has been described as a ‘common law’ rule and
as a ‘constitutional common law principle.’ It is nei-
ther. The rule, as we have observed it, is a manifes-
tation of equitable estoppel.
'§**In a recent description of America’s most acute needs for speed
and economy in dispute resolution, Chief Justice Warren Burger de-
clared: ‘Ways must be found to give appropriate weight to ecological
and environmental factors without foreclosing development of needed
public works and industrial expansion by inordinate delays in litigation.
The accommodation of the conflicting values demands that there be a
swift resolution of those cases, so as to avoid the waste involved in
suspending execution of large projects to which vast public or private
resources are committed. This country has appropriately committed
itself to protecting our environment, but we must also build needed
schools, homes and roads, and in the process provide jobs.’ Address
given at National Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice in April 1976, reprinted under the
title, The Direction of the Administration of Justice (1976) 62 A.B.A.J.
ae
_
**Historically, estoppel was administered by the equity
chancellor; its function was justice and good consci-
ence; it was evoked by motives of equity and fair deal-
ing in order to prevent the inequitable enforcement of
other rules of law. (3 Pomeroy’s Equity Jurisprudence
(Sth ed.) § 802, pp. 180-181.) Equitable estoppel be-
speaks a thirst for individualized justice, obedient to
general doctrine but relatively free of servitude to fixed
verbalisms. In the evolutionary dynamics of California
environmental law, the plasticity of equitable estoppel
has been replaced by the rigidity of the vested rights
rule. Doctrinal evolution has come full circle — from
the formal, unmoral rigidities of medieval common law
to the individualized humanity of equity and back again
to the fixed demands of the vested rights rule.
Raley v. Calif. Tahoe Regional Planning Agency, 68
Cal.App.3d 965, 984-985, 137 Cal.Rptr. 699 (1977)
footnote 15 omitted.
That is today’s California reality—not the fanciful sugar-
coated platitudes of Appellee and its amici. It is that grim
reality that underscores the appropriateness of availability
of just compensation as a remedy for egregious abuses, so
that any citizen—not merely ‘‘. . . the most hardy and well
heeled . . .”,—can avail himself of effective constitutional
protection.
D. The Professed Nobility of Appellee’s Asserted Goals
Does Not Justify the Use of Unconstitutional Means.
The presentation of Appellee and its amici makes a classic
example of confusion between ends and means. The pursuit
of noble environmental goals no more entitles one to dis-
regard the language and policy of the Constitution than does
the pursuit of any other desirable societal goal; see United
States Trust Co. v. New Jersey, 431 U.S. 1, 29-30(1977).
Rr het tia 9 TT Si sed ere
ee ee
nD sai
For example, all right-thinking people abhor violent crim-
inal acts (which in today’s world are a most serious and
pervasive problem), but that hardly justifies exhortations to
freely swung police truncheons or warrantless midnight
raids,’ even if such were to reduce criminal activity sig-
nificantly. There are simply some values which this society
deems so vital as to make them supreme law which is not
to be subordinated to arguments of efficiency or desirabil-
ity.°° Or, as the Massachusetts Supreme Court so aptly put
it:
‘*In this conflict between the ecological and the con-
stitutional, it is plain that neither is to be consumed by
the other. It is the duty of the department of conser-
vation to look after the interest of the former, and it
is the duty of the courts to stand guard over constitu-
tional rights.’” Commissioner of Natural Resources v.
S. Volpe & Co., 206 N.E.2d 666, 671 (1965, Mass.)
This Court has likewise expressed itself on this point in
United States Trust Co. v. New Jersey, supra, 431 U.S. 1,
28-29:
"As Mr. Justice Jackson put it: “‘If officers search my house and
seize my papers, with no threat to my person, only property may be
directly touched; but I can think of no greater affront to my person.”’
Jackson, The Task Maintaining Our Liberties: The Role of the Judiciary,
39 A.B.A. Jour. 961, 963 (1953).
Indeed, the amicus brief of the City of San Jose (at p. 34), after
much elocnent circumlocution, eventually gets around to making the
vital concessions on which this controversy ultimately centers: what
needs to be done to achieve what Appellee and its amici really desire
is to nationalize privately owned land and to amend the Fifth Amend-
ment so as to spare the takers the inconvenience of having to pay just
compensation. Just so! That is exacily what Appellee contends, except
that it has not had the temerity to come out and say so as did its amicus.
But the Constitution still stands unamended to such specifications, and
so long as it so stands it guards against indirect, as well as direct,
attacks on the values it protects. Macallen v. Massachusetts, 279 U.S.
620, 629 (1929).
po
‘*Mass transportation, energy conservation, and en-
vironmental protection are goals that are important and
of legitimate public concern. Appellees contend that
these goals are so important that any harm to bond-
holders from repeal of the 1962 covenant is greatly
outweighed by the public benefit. We do not accept
this invitation to engage in a utilitarian comparison of
public benefit and private loss. . . . Thus a State cannot
refuse to meet its legitimate financial obligations sim-
ply because it would prefer to spend the money to
promote the public good rather than the private welfare
of its creditors.’’
The same is true here.
E. By Claiming That it Cannot Tell When it Violates
the Constitution Appelleee Contradicts the Basis of
its Central Argument.
The arguments of the Appellee and its amici add up to
a massive self-contradiction. When it comes to pursuit of
regulatory ends, the city is depicted as clear-thinking, con-
scientious, courageous, respectful of societal values, willing
to face hard realities, and dedicated to the public good.’!
Yet, when it comes to implementation of those ends and
to the choice of means, the regulators are depicted as inept,
confused, and (in spite of lavish assistance by counsel and
expert consultants), unable to tell constitutional right from
wrong, so that they blunder over the constitutional boundary
with such ingenuousness as to lay a claim to a judicial rescue
_ “Although, curiously enough, to the extent local California munic-
ipalities have shown an inclination to regulate themselves so as to
provide ample room for growth, they are criticized for so doing in the
amicus brief of the American Planning Association (at pp. 63-64). One
begins to wonder to what extent the asserted deference to local regu-
latory wisdom is being colored by unspoken commitments to idiosyn-
cratic ideologies.
ry
ee oe rz
= =
operation that would keep them from having to face the
constitutional consequences of their own acts. This, with
all due respect, is an image that simply won’t wash; if the
regulators are astute enough to select and pursue their chosen
governmental ends, they should also be responsible enough
to select appropriate means. As this Court pointedly noted
in International Paper Co. v. United States, 282 U.S. 399,
406 (1930):
‘‘The government exercised its power in the interest
of the country in an important matter, without diffi-
culty, so far as appears, until the time comes to pay
for what it has had. The doubt is rather late.”
F. Appellee’s Notion of ‘‘Chilling’’ Stands American
Constitutional Jurisprudence on its Head, By De-
manding That Constitutional Violators Be Favored.
Much is said in support of Appellee’s position about a
supposed ‘‘chilling’’ of governmental regualtory activities,
that is foreshadowed if access to the constitutional remedy
of just compensation is reaffirmed by this Court. Appellants
suggest in response that the various parties making such
arguments have their societal and constitutional values back-
wards. The concept of ‘‘chilling’’ rests on the idea that the
rights incorporated and protected by the Constitution are so
precious that the courts stand guard over them, and protect
them not only from outright invasions, but also from threat-
ening governmental activities that, though not crudely vi-
olative of the constitutional letter, would in reality tend to
discourage individuals from availing themselves of those
cherished rights. That is what ‘‘chilling’’ is all about.
For Appellee and its amici to come out boldly in favor
of standing this concept of ‘‘chilling’’ on its head, and to
demand that the constitutional values be narrowly circum-
— a
scribed, lest those who would violate them be ‘‘chilled’’ ,??
is simply an Orwellian inversion of the English language.
The ethical and logical basis on which the concept of ‘‘chill-
ing’’ rests means to protect the individual citizen from con-
stitutional overreaching by the powerful government, not
the other way around (history teaches that governments tend
to take care of themselves). It is indeed supposed to provide
disincentives to the government when it sets out on a con-
stitu.ionally suspect path. It would be an anomalous twist,
contrary to two centuries of American constitutional juris-
prudence, to say that constitutional violations should be
encouraged, lest their discouragement work a ‘‘chilling”’
of those who would set out on a path of collision with the
nation’s organic law and the precious values it enshrines.”’
It must be emphatically noted that no one on Appellce’s side worries
about any supposed ‘‘chilling’’ in the context of invalidation; it is only
when it comes to having to pay just compensation that the bogus tocsin
of ‘*‘chilling’’ rings out. That—Appellants suggest—tells volumes; the
commitment of the parties making that argument is thus not to the
Constitution, but only to their self-interest (i.e., to a remedial legal
structure that would make constitutional violations convenient, and
above all cheap).
Appellants suggest in reply that confronting a would-be constitutional
violator with the prospect of unpleasant consequences is not ‘‘chill-
ing’’—it is deterrence from wrongdoing.
*In that connection, one notes the es bald assertion (Ap-
pellee’s Brief. 16) suggesting that no ‘‘fundamental rights’’ are involved
here. Significantly, that naked assertion appears as ipse dixit in a head-
ing which is not supported by any reason or authority. Suffice it to say
in reply that this Court definitively rejected this unsound notion in
Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972), where
it made explicitly clear that the right to ‘*. . . enjoy property without
unlawful deprivation . . .”’ enjoys the same degree of protection as
**. . . the right to speak or the right to travel.’’ This principle, in turn,
rests on the eminently sensible notion that the most precious *‘personal’”’
rights cannot be enjoyed by persons whose property rights are not
similarly protected. ‘‘Neither could have meaning without the other’’
(/d.).
oe
i).
G. Appellee’s Arguments Ignore the Concept of Fair-
ness That Is the Cornerstone of the Constitution.
Finally, an observation must be made on one aspect of
the arguments of Appellee and its amici that is conspicuous
by its absence. fairness.
Appellee and friends devote all their policy arguments
to the support of governmental convenience, studiously ig-
noring in the process the idea that the persons who own
land in this country are not some sort of enemy to be fought,
Sut living, breathing individuals whose lives and lifetimes
of work are at stake, and who both deserve and are entitled
to the protection promised them by their Constitutions.” In
the words of a recent commentary:
‘*Fairness requires that individuals be treated not
merely as means to social ends but rather as persons
who deserve respect as ends in themselves. Although
fairness standards are necessarily indetern:inate, courts
faced with particular challenges to zoning measures
must nonetheless ask whether those measures exact
such a disproportionate sacrifice from individual prop-
erty holders relative to their peers and to their expec-
tations that the affected individuals may be seen as —
having been treated solely as a means in a process of
social engineering.’” Comment, Developments in The
Law: Zoning, 91 Harv. L. Rev. 1429, 1492 (footnote
omitted).
Those ethical principles have been wholly ignored by
Appellee’s arguments.
*The California Constitution (Art. I, §1) symbolically places at its
beginning the ‘*. . . acquiring, possessing, and protecting property
.’ as one of the secured **. . . inalienable rights. . . .”’
—
3
THE OPINION BELOW SQUARELY DEALS WITH THE CON-
STITUTIONAL ISSUES OF TAKINGS AND REMEDIES,
AND EXPRESSLY BELIES APPELLEE’S ‘‘ADMINISTRA-
TIVE REMEDIES” ARGUMENTS.
The matters suggested by the above heading were dis-
cussed in Appellants Response to Motion to Dismiss or
Affirm at pp. 7-10 (to which the Court’s attention is re-
spectfully invited), and need not be repeated at length here.
The court below could not have been clearer in rejecting
the notion that any ‘‘administrative remedies’’ threshold
problem was involved.** So did this Court, as discussed
presently.
By way of brief summary, the ‘‘administrative remedies’’
argument is without merit because:
(a) What is involved here is a major zoning ordinance
which is a legislative, not administrative, gov-
ernmental act (City of East Lake v. Forest City
Enterprises, 426 U.S. 668 (1976); San Diego
Bldg. Contractors Assn. v. City Council, 13
Cal.3d 205, 118 Cal.Rptr. 146, 529 P.2d 570
(1974)). There are no ‘‘administrative’’ remedies
**See particularly Appendix A to Appellants’ Response to Motion
to Dismiss or Affirm, in which the California Supreme Court carefully
deleted all references to ‘‘administrative mandamus’’ (the California
judicial remedy that serves to review administrative acts), and amended
its opinion to make clear that ordinary mandamus (a remedy used to
review legislative acts) was its chosen remedy. *‘Administrative man-
darnus’’ is the statutory review procedure of administrative acts (Cal.
Code Civ. Procedure §1094.5). By long standing and well settled Cal-
ifornia law, this is a remedy limited to judicial review of administrative
matters and is not available to review legislative acts. See Wulzen v.
Board of Supervisors (1894) 101 Cal.15, 35 P.353, Strumsky v. San
Diego County etc. (1974) 11 Cal.3d 28, 35, fn. 2, 112 Cal.Rptr. 805,
809, 520 P.2d 29. For an explication of the California legislative intent
in adopting Cal. Code Civ. Proc. §1094.5, see Brock v. Superior Court
(1952) 109 Cal.App.2d 594, 598-601, 241 P.2d 283.
NR Bo Tre ik tet ten ere
oa
to be pursued here,”° and, moreover, it is axio-
matic that one need not supplicate the legislative
to change the law before challenging its consti-
tutionality.
(b) Since, under the facts alleged, a claim of depri-
vation of constitutional rights is invoked, for
which a judicial remedy at law or in equity lies
under 42 U.S.C. §1983 (Lake County Estates
v. Tahoe Regional Planning Agency, .... U.S.
...., 59 L. Ed.2d 401 (1979)), no pursuit of ad-
ministrative remedies is required in any event
(Damico v. California, 389 U.S. 416 (1967)).
Also, in light of Appellee’s consistent and avowed
commitment to keeping the subject property as
an indispensable part of the City’s open space
resources, any such pursuit of these non-existent
‘*remedies’’ would have been futile in any event.
(See Dahl v. City of Palo Alto, 372 F.Supp. 647,
649, fn. 2, (1974, N.D. Cal.)).
(c) The court below did not base its decision on any
such threshold matters but went to the substantive
and remedial merits of the federal constitutional
issues presented.
(d) The court below decided the very issue tendered
by Appellee (See Appellants’ Response to Motion
to Dismiss or Affirm, at pp. 9-10) and thus Ap-
pellee is hardly in a position to argue that the
issue was not properly before that court.
(e) Whatever comforting language Appellee may find
in the California intermediate appellate court
cases it cites, the blunt fact is that in its most
recent decision on point, the California Supreme
See Moore v. East Cleveland,’ 431 U.S. 494, 511-512 (Brennan,
J., concurring.)
mm, Sam
Court definitively rejected the argument that ad-
ministrative remedies need to be exhausted before
mounting a judicial constitutional challenge. State
v. Superior Court (Veta), 12 Cal.3d 237, 250-
251, 115 Cal.Rptr. 497, 524 P.2d 1281 (1974).
Aside from these matters, Appellee overlooks that this
Court expressly considered and rejected that very argument
in Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926).
There, the city argued that the landowner was required to
seek permission to use his land contrary to the zoning or-
dinance before suing. This Court disagreed.
Finally, the California Supreme Court chose to decide a
prime constitutional issue that created a harsh precedent
going directly to federal constitutional rights of Californi-
ans. If the court below had intended to base its decision on
any threshold procedural matters by state law, it would have
said so;”’ instead, it expressly chose to address remedies
under the Fifth Amendment. That is what is before this
Court for review. The issue now ingeniously asserted by
Appellee and its amici formed no part of the decision below
and is thus not properly raised now.
i
THE PRESENT RECORD MAKES IT CLEAR THAT THE SUB-
JECT PROPERTY HAS BEEN RENDERED USELESS AND
WORTHLESS; ANY FACTUAL CONTROVERSY ON THAT
POINT THAT APPELLEE WISHES TO PURSUE SHOULD
BE RAISED IN A TRIAL ON THE MERITS.
Much is said by Appellee and its amici about Appellants’
supposed “‘right’’ to build at least one house. Putting aside
"When the California Supreme Court wants to deal with the state
law of remedies, it knows how to make its purpose clear; see State v.
a a (Veta), 12 Cal.3d 237, 115 Cal.Rptr. 497, 524 P.2d
( ).
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the fact that the allegations (which on this record are the
only facts before the Court) are to the contrary, and putting
aside the fact that such an argument simply contradicts
Nectow v. Cambridge, 277 U.S. 183 (1928).” the ordinance
before the Court itself belies the supposed ‘‘right’’.
While Appellee and friends exhort the ‘‘Uses Allowed
By Right’’ part of the ordinance as well as its density pro-
visions (see J.S.A. at pp. 31-32), they stop their reading
too soon. Immediately following these provisons there come
‘*Standards’’ (J.S.A. at pp. 32-33), which make it crystal
clear that nothing can be built on the subject property except
by the City’s whim, and that the owner would literally have
to deed the ‘‘open space’’ land to the City (J.S.A. at p.32).
What these draconian measures leave of utility and value
is at best illusory. Surely, Appellants are entitled to show
on the merits that the market’s reaction is to shun land which
(putting all else aside for the moment) would have to be
purchased by its users in large lots which then would have
to be largely dedicated ‘‘in fee title or of scenic easements’’
etc. to the City. Suffice it to say that when given the op-
portunity an owner may be able to prove that such severe
restrictions (that first create large lots and then stultify their
use and enjoyment as such), do constitute a taking. That
is quite similar to what happened in Arastra Limited Part-
nership v. City of Palo Alto, 401 F.Supp. 962 (1975,
N.D.Cal.), where the aggrieved landowner proved just that.
And, of course, there is also the impact on value, utility
and marketability of Appellee’s avowed and widely publi-
**Nectow—telied on by Appellants but completely ignored by Ap-
pellee—held that notwithstanding a zoning ordinance’s ostensible per-
mission to put the land to some uses, it was proper for a trier of fact
to consider the economics of such uses and to conclude that actually
such ostensibly permitted uses denied the owner any economically
rational use of his land or any return on his investment.
a
cized intention to make the subject property an ‘‘indispen-
sable’’ part of its ‘‘open space’’, and the on-again, off-again
condemnation, all of which Appellee and friends have sim-
ply ignored.
In sum, this record makes it clear that Appellants may
well be able to prove a taking, given a fair chance and their
day in court. That would seem to be their constitutional
right, as this Court explained in Portsmouth Harbor L. &
H. Co. v. United States, 260 U.S. 327, 330 (1922).
4.
THE NATURE OF PROPERTY AND THE EFFECT OF REGU-
LATIONS ON IT LEAD TO THE CONCLUSION THAT A
**TAKING”’ NEED NOT ENCOMPASS THE ENTIRE FEE
SIMPLE ABSOLUTE TITLE, BUT MAY INVOLVE ONLY
THE TAKING OF A PARTICULAR PROPERTY RIGHT,
WITH JUST COMPENSATION AWARDED ACCORD-
INGLY.
One of the myths extant in the field of inverse condem-
nation (that is displayed in the ‘‘parade of horribles’’ ar-
guments of Appellee and its amici” is the legally and log-
ically unjustified notion that if a ‘‘taking’’ is found and
payment of just compensation is ordered, that somehow
requires the taking entity to acquire involuntarily the entire
fee simple absolute title and pay full fair market value of
the entire ‘‘bundle of sticks’’ comprising the regulated prop-
erty. This, in turn, is said to expose regulating entities to
ruinous damages for what is but a misstep that goes only
“See, e.g., the amicus brief of the State of California, at p. 45,
where a crude attempt is made to impute to Appellants an argument
that ‘‘[s]lightly cross the line . . . and the hammer falls.’’ In fact, as
shown presently, that is the myth. The law requires examination of the
facts of each case, and a determination of what, if anything, has been
taken. Again, any supposed dogmatic approach to this problem lies on
Appellee’s—not Appellants’—side of the argument.
= =
a bit too far—so goes the argument. (See, e.g., the amicus
brief of the State of California, at p. 43, where the State
agonizes over whether the United States involuntarily
bought ‘‘an enormous portion’’ of Virginia). In reality, nei-
ther such simplistic all-or-nothing ‘‘taking’’ theory, nor its
supposed economically catastrophic sequelae have any sub-
stance.’ Nonetheless, this spurious theory is regularly
hauled out of mothballs, and is used to frighten unsophis-
ticated local judges into refusing to grant any relief to griev-
ously damaged property owners.”
“And neither does the fallacious premise that would depict ‘‘regu-
lation’’ so severe as to work a taking, as a careless misstep by a well-
meaning regulatory agency. Not only do such meritless importunings
propose that the judiciary ride to the rescue of irresponsible govern-
mental agencies shrinking from facting the consequences of their dis-
regard of the Constitution, but on the facts at bench they lack factual
validity as well. What is involved here is a solemnly undertaken act
of governance, arrived at only after careful study by leading expert
consultants and with assistance of counsel. It was a deliberate process
that invoked the full panoply of governmental powers, and took years
to accomplish. In short, such arguments do not properly tug at judicial
feelings of compassion; rather they are more in the nature of an irre-
sponsible litigant seeking to evade accountability to the Constitution
which it is bound to uphold rather than circumvent. The amicus brief
of the City of San Jose, et al, provides the proverbial ‘‘Exhibit A.”’
There (at pp. 5-6) it is argued with a straight face (albeit in flowing
prose) that a confessed municipal blunder in racing against other cities
to incorporate as much territory as possible, and then caving in to
political pressure to deny reasonable land uses on the annexed land,
is somehow an act of virtue to be rewarded. When viewed with some
detachment, this argument is something less than overwhelming in its
moral sweep. It does, however, provide a good illustration of what the
court in Raley (quoted supra, at pp. 14-16) aptly called ‘‘administrative
anarchy.”’
*'This observation implies no disrespect to the judiciary at any level.
On the contrary, it merely serves to acknowiedge the fact of life known
well to practicing lawyers, that judges are overwhelmingly generalists
and their usual heavy workload is typically composed of criminal pros-
ecutions, tort litigation, divorces, a sprinkling of commercial disputes,
and occasional litigation of governmental regulations of businesses.
Inverse condemnation cases are quite rare, and therefore it is hardly
surprising that a typical state trial judge, bereft of research assistance,
and unfamiliar with this arcane field (which has proven troublesome
to leading scholars, and indeed, even to this Court with all its enviable
resources), may well find himself intellectually intimidated by expe-
rienced attorneys’ doomsday cries of imminent municipal ruin.
ee
In fact, an analysis of the decisional law shows the myth
to be just that. While in some cases in which the regulation’s
impact on the landowner” was wholly confiscatory, or where
_the non-physical taking was brought about by the govern-
mental activities collateral to an overtly acquisitory intent
(as at bench), courts have occasionally held that a complete
taking had occurred. See Benenson v. U.S., 548 F.2d 939
(1977, Ct. Cl.) (severe regulations prevented owner from
using the Willard Hotel in Washington while the Govern-
ment moved to acquire it); Peacock v. County of Sacra-
mento, 271 Cal.App.2d 848, 77 Cal.Rptr. 391 (1969) (for
several years all uses of subject property—save growing of
grass—prohibited while the county tried to decide whether
to acquire it for an airport; in the meantime, taxes on that
property were raised annually); Drakes Bay Land Co. v.
U.S., 424 F.2d 574 (1970, Ct.Cl.), and 459 F.2d 504, 505
(1972 Ct. Ci.) (government successfully interfered with
owner’s plans for use of its land while awaiting Congres-
sional appropriation to condemn it); Arastra Limited Part-
nership v. City of Palo Alto, 401 F.Supp. 962 (1975,
N.D.Cal.), opinion vacated by stipulation following sub-
Please recall that the central criterion of a taking is the owner’s
loss, not the taker’s gain: ‘*. . . The question is, What has the owner
lost? not What has the taker gained?’’: (Boston Chamber of Commerce
v. Boston,) 217 U.S. 189, 194 (1910). This principle, although first
articulated as a rule of valuation, was adopted by the Court as a criterion
of taking: ‘‘The courts have held that the deprivation of the former
owner rather than the accretion of a right or interest to the sovereign
constitutes the taking.’’ United States v. General Motors Corp., 323
U.S. 373, 378 (1943). Also see Kimball Laundry Co. v. United States,
(338 U.S. 1, 13 (1948). Thus, where the governmental conduct has
stripped the owner of all/ rights of ownership, a full taking may be the
result.
“A similar case is Bydlon v. U.S., 175 F.Supp. 891 (1959, Ct.Cl.),
except that the taking technique there consisted of forbidding access
to the subject property. Also see Pete v. U.S., 531 F.2d 018 (1976,
Ct.Cl.), and 569 F.2d 565 (1978, Ct.Cl.) (a long-delayed denouement
of the original Bydlon controversy).
=
stantial settlement, 417 F.Supp. 1125 (extensive scheme of
ostensible regulations imposed in lieu of acquisition that so
burdened the regulated land as to make it unusable); Rich-
mond Elks Hall Assn. v. Richmond Redevelopment Agency,
561 F.2d 1327 (1977, 9th Cir.) (impact of announced, then
delayed, then abandoned plans to condemn the subject prop-
erty destroyed its utility and saleability; held: these events
amounted to taking of such title as aggrieved owner had,
561 F.2d at 1332).
On the other hand, where the impact of governmental
regulatory conduct on the affected land was less severe,
courts have held that the ‘‘taking’’ was either temporary,
or partial, or both. Thus, in Sneed v. County of Riverside,
218 Cal.App.2d 205, 32 Cal.Rptr. 318 (1963), the court
held that an ostensible height regulation was in reality a
taking of an avigation easement. In Lomarch Corp. v. City
_of Englewood, 237 A.2d 81 (1968, N. J.), a regulation
‘*freezing’’ land for a limited period of time in contempla-
tion of possible public park uses was held to be a com-
pensable taking of an option to purchase. In Keystone As-
sociates v. State, 371 N.Y.S.2d 814 (1975, Ct. Cl.) rev'd.
389 N.Y.S.2d 895, (1976. App. Div.) rev’d. and remanded
45 N.Y.2d 894, 383 N.E.2d 560 (1978, N. Y.), aregulation
improperly delaying demolition of the Old Metropolitan
Opera House was held to be a temporary de facto taking
and compensation was awarded on a temporary rental basis.
Similarly, in City of Austin v. Teague, 570 S.W.2d 389
(1978, Tex.), the. offending confiscatory governmental con-
duct (there, an unjustified permit denial) was interdicted by
non-monetary judicial declaration while in the same pro-
“Similarly, in United States v. Causby, 328 U.S. 256 (1946). this
Court did nor require that Causby's land be acquired in toto; on the
contrary, the matter was remanded to the Court of Claims to define
with particularity the nature and extent of the easement found to have
been taken there. See U.S. at 267-268.
= we
ceeding the owner was awarded compensation for out-of-
pocket losses incurred by reason of the improper govern-
mental regulatory intervention. Accord, San Antonio River
Authority v. Garrett Bros., 528 S.W.2d 266 (1975, Tex.
Civ. App.). And in Gordon’. City of Warren, 579 F.2d
386, 387 (1978, 6th Cir.), it was alleged that the wrongful
municipal regulatory activities effected a temporary taking,
and this was held to state a proper cause for relief under the
Fourteenth Amendment.
Of particular interest are cases in which the government
engaged in inequitable precondemnation activities that so
trenched on the landowner’s rights of use and enjoyment
of his land as to work a non-physical taking, but then the
governmental acquisition plans were abandoned before all
of the involved property rights were destroyed. In such
situations courts found a taking but awarded just compen-
sation only for the temporary invasion of the owners’ prop-
erty rights. See Washington Market Enterprises, Inc. v. City
of Trenton, 343 A.2d 408 (1975, N. J.), and Jones v. Peo-
ple, 22 Cal.3d 144, 148 Cal.Rptr. 640, 583 P.2d 165
(1978).
Still other cases involved situations where the aggrieved
landowners availed themselves of the remedy of invalidation
of the confiscatory regulation, and after securing judgments
to that effect, sued for just compensation to provide them
with monetary redress for the temporary loss of use* of
‘It is, of course, basic that the very idea of ‘‘property’’ rests on the
notion that its owner has the right to use and enjoy it subject only to
reasonabie regulation (Buchanan v. Warley, 245 U.S. 60, 74 (1917)).
Indeed, California defines property in terms of ‘‘ownership’’ which,
in turn, is defined as ‘*. . . the right of one or more persons to possess
and use it to the exclusion of others,’’ Cal. Civil Code §654, emphasis
added. In that connection, please recall that for purposes of applying
the protection of the Constitution to ‘‘property,”’ this Court iooks to
state law’s definition of ‘‘property’’; see United States ex rel. TVA v.
Powelson, 319 U.S. 266, 279 (1943); Sauer v. New York, 206 U.S.
536, 548 (1907). For an extensive collection of federal cases applying
this principle, see Annotation | A.L.R.Fed. 479, 482-483.
PAR NS ra Son 2D ie NTN
a
their property during the time consumed in obtaining a ju-
dicial declaration of the regulation’s invalidity. See Gordon
v. City of Warren, supra, 579 F.2d 386; Sixth Camden
Corp. v. Township of Evesham 420 F.Supp. 709 (1976, D.
N. J.): Keystone Associates v. State, 333 N.Y.S.2d 27,
(1972, App. Div.) aff'd. 307 N.E.2d 254 (1973, N.Y.).
Finally, some courts have fashioned a flexible remedy
whereby the regulation is found to work a taking, and there-
upon the regulating entity is ordered either to allow the
owner to proceed with his proposed land use or to initiate
condemnation proceedings promptly. See Estuary Proper-
ties, Inc. v. Askew, .... So.2d .... (1979, Fla.App.). This
approach too does not compel full acquisition of the ‘‘taken’’
property but rather confronts the regulating entity with an
intelligent decision whether the public benefit to be derived
from the community’s asset enhancement warrants the cost.
It is, in other words, a situation in which the courts quite
properly present the bill for the illusory ‘*free lunch’’, while
its would-be consumer may opt out of the feast now that
it is no longer ‘‘free’’. -
In sum, the concept of non-physical takings, as any other
takings, is premised on the sound and settled principle that
a compensable taking may be found to exist but, even so,
it need not be a permanent taking of the owner’s entire
‘‘bundle of sticks.’’ Depending on the specific facts and
particularly on the nature and extent of the impact of gov-
ernmental action on the subject property, it may only be a
taking of a limited property interest, possibly for a limited
period of time. In such cases the taking entity pays only for
those rights it has taken, and only for the duration of the
taking.”
“It cannot go without emphasis that the California Legislature con-
templated this very possibility when in Cal. Gov't. Code $6953 it
expressly authorized resales of land acquired for open space. It likewise
cannot go without notice that Appellee’s response to this point noted
by Appellants (see Appellants’ Brief, p. 42). is to ignore it entirely.
Most importantly, as this Court made quite clear in Kaiser
Aetna v. United States, .... U.S. ...., 100 S.Ct. 383 (1979),
a partial taking may result from the deprivation of the
owner’s one significant ‘‘stick’’ in the ‘‘bundle’’ of rights
that comprise property.
Thus, any doomsday cries of impending municipal bank-
ruptcy (which have made their appearance here in spite of
the self-evident fact that any fiscal catastrophe so dramat-
ically foreshadowed perforce has to be self-inflicted), ought
to be viewed with the healthy skepticism they deserve.
For if a finding of a full taking is in the offing on a given
set of facts, that perforce means that the constitutional vi-
olation has been gross and its impact on the owner devas-
tating. Here, as in other areas of constitutional law, it seems
only fitting that the courts opt for supporting the Consti-
tution, and not waste their sympathy on its egregious vio-
lators. Here, as elsewhere, there is no such thing as a free
lunch; there is no intellectually or morally respectable reason
why the public whose amenities are being bettered and
whose resources are being enhanced by quite deliberate and
determined acquistive actions of the government*’ (see Sax,
Takings and Police Power, 74 Yale L. Jour 26, 62-63
(1964)), should not be called upon to provide recompense
to those who are being impoveristied as a result of such
“It cannot go without noting that in the case at bench the events
complained of came about only after an extended period of studies by
renowned experts who determined that the subject property was indis-
pensable to the City’s ‘‘open space’’ resources and recommended its
acquisition; indeed, until the notion of a ‘‘free lunch’’ beckoned, the
City’s conduct was avowedly acquisitory and included formal eminent
doman proceedings. This governmental entity—advised by its counsel
all along—knew exactiy what it was doing; it was acquiring*‘open
space’’ parklands to enhance its own resources. An allusion to this
Court’s observation quoted supra, at p. 19, seems quite appropriate.
= oe
asset transfer.** This Court has repeatedly so held: Gerlach
Live Stock Co. v. U.S., 339 U.S. 725, 752-753 (1950);
Armstrong v. U.S., 364 U.S. 40, 49 (1960); Berman v.
Parker, 348 U.S. 26, 36, (1954). To countenance a contrary
view would be to sanction the ‘‘shorter cut’’ than permitted
by the Constitution, that was enduringly deplored by Mr.
Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 416 (1922).
3.
THE CASE AT BENCH PROVIDES AN OPPORTUNITY TO
STRIKE A BALANCE BETWEEN THE PUBLIC INTER-
EST AND ENVIRONMENTALIST ZEALOTRY.
Particularly in juxtaposition with the currently fashionable
rhetoric exhorting environmental concerns as being in the
_public interest, it warrants reiteration of the bedrock prin-
ciple on which this society rests, that the public interest
encompasses those values that the framers sought to protect
by inclusion in the fundamental guarantees of the Consti-
tution. Thus, this case may provide this Court with an ap-
propriate vehicle for striking a balance between environ-
mental zealotry and the constitutionally endorsed public
interest in securing to individual citizens a measure of pro-
The reciprocity theory on which zoning is sometimes justified (i.e.,
that a proper land use pattern confers benefits on all members of the
community) manifestly has no applicability to cases such as this where
one or two members of the community are stripped of their property
in order to improve the lot of their fellows. To call that ‘‘reciprocity”’
is to engage in a certain degree of distortion of the English language.
To put it in legal terms, the Euclid zoning notion on which the idea
of reciprocity rests has it that Jand uses in the community are allocated
and thereby balanced; but it is absurd to claim to find ‘‘balance’’ in
a system that denies all economic use to one citizen in order to enhance
the uses of his neighbors’ land.
=” an
tection against overreaching governmental confiscatory
course of conduct.
Simply put, this isn’t 1960 or even 1970; Rachel Carson’s
plea for the environment is no longer a lone cry in the
wilderness. Today’s world must confront the fact that en-
vironmentalists - far from the embattled little band of yore
- tend to make their appearance armed to the teeth with
potent laws and regulations enforced by a formidable array
of governmental bureaucracies. In short, environmentalism
has come of age and like any other force in society it must
confront its obligations and ethical duties. It is time to strike
a balance, and this Court may quite appropriately do so in
this case.
This case illustrates how an ordinary citizen, who lawfully
accumulated some property, can be simply destroyed by
latter-day environmentalist Savonarolas who care only for
their ideological goals, and who care naught for simple
fairness and its reflection in the Constitution. Such citizens
deserve and are entitled to that Constitution’s protection.
Conclusion.
Much of Appellee’s argument is digressive. It presses on
the Court a red herring having to do with the supposed
horrors of damages being payable for any slight govern-
mental misstep. That is simply not the issue here. The pres-
ent allegations (which must be taken as true, this being a
dismissal following a general demurrer) are that the subject
property has been deprived of all utility and value; that is
what is before the Court. Similarly, the issue is whether just
compensation remains an appropriate remedy in cases of
full deprivation of an owner’s property rights; not some
fantasy involving involuntary fee purchases for minor mis-
steps.
ae
Whatever may be the full panoply of criteria that will
satisfy the scholars as a complete matrix of inverse con-
demnation law governing non-physical takings, this case
presents three important factors:
(a) it charges deprivation of all utility and value.
(b) it charges that the ostensible regulation is in fact
an acquisitory device, and
(c) it charges that the owners have been deprived by
the interaction of all city acts of their substantial prop-
erty rights.
The criteria laid down by this Court in Penn Central and
Kaiser Aetna are thus quite sufficient to permit Appellants
a trial on the merits.
Appellants pray that the judgment below be reversed and
the cause be remanded for trial.
Respectfully submitted,
GIDEON KANNER,
JOHN P. POLLOCK,
REGINALD G. HEARN,
Attorneys for Appellants.
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