Amicus Brief — Agins v. City of Tiburon

[supreme Court, US.

i itLe wD

In The MAR 24 1980

Supreme Court of the United Wesateaow JR., CLERK

October Term, 1979

FOR ARGUMENT

No. 79-602

DONALD W. AGINS and BONNIE G. AGINS,

Appellants,

—vs.—

CITY OF TIBURON, |

Appellee.

ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA

-—— ———-

BRIEF AMICUS CURIAE ON BEHALF OF THE

COMMITTEE ON ENVIRONMENTAL LAW OF

THE ASSOCIATION OF THE BAR OF THE

CITY OF NEW YORK

[nnnnnnnnnnnEnEEnEEEEnEEEEneEeeseeieeeeeseseeeeeseeeeie —- - -- -

Committee on Environmental Law

of the Association of the Bar of the

City of New York as Amicus Curiae

42 West 44th Street

New York, New York 10036

DANIEL RIESEL, Esq.

NICHOLAS A. ROBINSON, Esq.

JOEL H. SACHS, Esq.

Ross SANDLER, EsqQ.

PHILIP WEINBERG, Esq.

Of Counsel

TABLE OF CONTENTS

Interests of Amicus Curiae . 2.0... ccc cc cc cc wee 1

ARGUMENT:

PoINT I—Dismissal Was Warranted And No Trial

Is Needed On The Issue Of Damages Because

The State Court Properly Ruled That There Was

PE sc hf nn SE a ee-ou eho c rea eee Rice 3

PoInT II—The Radical Change In The Established

Remedies For Unconstitutional Land Use Regu-

lation Advanced by Appellants Would Disrupt

Stable Economic Expectations And Frustrate

Accepted Patterns Of Zoning And Local Govern-

ment Police Power Responsibilities ........... 6

Point III—New York Has An Effective Land-Use

Regulation Scheme Which Appellants’ View

ME EIN i ois. oucaee peony bean 11

NN a a ae ey a Beaty aid 13

TABLE OF CASES

Andrus v, Allard, — U.38. —, 100 S.Ct. 318 ...... 5,11

Foster v. Scott, 186 N.Y. 577, 82 N.E. 976 (1898) .. 12

Fred F. French Jiwesting Co. v. City of New York,

89 N.Y.2d 587, 350 N.E.2d 381 (1976), app.

es Me WI IS kek ine o de Hex acdwa wwe es 8, 11

Goldblatt v. Town of Hempstead, 369 U.S. 590 .... 5

Hurley v. Kincaid, 285 U.S. 95 ..............000. 4

Lochner v. New York, 198 U.S. 45 ............... 10

Lutheran Church in America v. City of New York,

35 N.Y.2d 121, 316 N.E.2d 805 (1974) ...... 11

ii

PAGE

Matter of Spears v. Berle, 48 N.Y.2d 254, 397 N.E.2d

PRE CE chee Seeks keeles 11,12

Miller v. Schoene, 276 U.S. 272 .................. 5

National League of Cities v. Usery, 426 U.S. 883... 6

Penn Central Transportation Co. v. City of New

WO OE BR oe 5, 7, 8,12

Pennsylvania Coal Co. v. Mahon, 260 U.S. 398 .... 5

Portsmouth Harbor L. & H. Co. v. United States,

Fe WET odes cbns eRe elaacueisebe eet 3

Regional Rail Reorganization Act Cases, 419U.S.102 4

Sierra Club v. Environmental Protection Agency, 540

FOG 4116 (DC, Ges 1098) oe 7

United States v. Miller, 317 U.S. 369 ............ 9

Village of Arlington Heights v. Metro. Housing Dev.

CONPy GOP WO ick ec dicadicce cs 7

Village of Belle Terre v. Boraas, 416 U.S.1....... 6, 7

Village of Euclid v. Ambler Realty Co., 272 U.S.

POR. Fidbveiwuchaneauiicascooue ones 4, 6, 7, 8,9

Young v. American Mini-Theatres, Inc., 427 U.S. 50 6

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.

EE

BRIEF AMICUS CURIAE ON BEHALF OF THE

COMMITTEE ON ENVIRONMENTAL LAW OF

THE ASSOCIATION OF THE BAR OF THE

CITY OF NEW YORK

This Brief amicus curiae on the merits of this appeal

is filed by the Committee on Environmental Law of the

Association of the Bar of the City of New York pursuant

to Rule 42 of the Rules of the United States Supreme

Court. Both appellants and appellee have consented to

the filing of this brief and copies of their consents have

been filed with the Clerk of this Court.

Interests of Amicus Curiae

The Association of the Bar of the City of New York

(“The Association”) has a membership of 11,766 attorneys

admitted to practice in New York and elsewhere. The

Association was established by Act of the NewYork State

2

Legislature in 1871. Laws 1871, Chapter 819; Amended

Laws 1924, Chapter 134. Its stated statutory purposes

are “cultivating the science of jurisprudence, promoting

reforms in the law, facilitating the administration of

justice, elevating the standard of integrity, honor and

courtesy in the legal profession and cherishing the spirit

of brotherhood among the members thereof.”

Much of The Association’s membership serves on

specialized committees which are designed to make pro-

fessional contributions in their special fields in further-

ance of The Association’s purposes. The Association’s

Committee on Environmental Law (“Committee”) has

examined the issue on appeal herein; it requested and

unanimously approved the preparation of this brief amicus

curiae. The Committee is composed of eighteen attorneys

with extensive experience in environmental law and land-

use gained through serving in local, state and federal

governments, representing corporations, real estate de-

velopment interests, environmental citizen organizations,

and a range of other interests. The Executive Committee

of The Association has authorized the filing of this brief

on behalf of The Committee.

The Committee is concerned that the severe, narrow

view advanced by appellants here, that each land-use regu-

lation which exceeds constitutional limits creates a cause

of action for damages, if adopted, would seriously inhibit

land-use regulation in New York and nationally. We

maintain that current legal practice in this sensitive area

has struck a reasonable balance between the need to

protect owners’ interests and the need to safeguard the

community from abusive land-use which ultimately erodes

‘those property values. This is a responsibilty as time-

honored as the common law of nuisance from which it

stems. This balance is in conformity with the Constitution

and has proven to be equitable. The predictability of the

law is relied upon by municipalities, real estate developers

ye

3

and environmental protection interests. To impose the

threat of huge damages on municipalities would chill the

exercise of their responsibility in this vital area of land-

use regulation. There is no sound reason for reversing

the decision of the California Supreme Court below. The

administration of land-use laws in New York and else-

where, as well as the economy, would be disrupted by a

contrary decision which would throw the law into turmoil.

ARGUMENT

POINT |

Dismissal Was Warranted And No Trial !s Needed

On The Issue Of Damages Because The State Court

Properly Ruled That There Was No Taking.

The apparent linchpin of appellants’ claim is their

conclusory allegation that the ordinance “has completely

destroyed the value of Plaintiffs’ property for any purpose

whatsoever . . .” (Complaint, 1 IX). That allegation

ignored the fact that appellants were free, under the very

ordinance they attack, to construct five single-family resi-

dences on their five-acre tract. Accordingly, the California

courts correctly found that they were not deprived of the

reasonable use of their property. Thus, the state courts

found that there was no cause of action for damages to be

tried because there was no taking but merely an exercise

of the State’s police power.

Since on its face appellants’ complaint failed to assert

the sort of invasion or severe deprivation of all reasonable

use which alone might support a taking claim, there is no

issue of fact to try.

Portsmouth Harbor L. & H. Co. v. United States, 260

U.S. 827, on which appellants rely, dealt with a private

4

resort hotel made totally unusable by naval artillery shells

being fired directly over it—a classic taking, in contrast

to the zoning regulation at bar which does no more than

reduce somewhat the value of appellants’ tract. To rule

that a compensable taking would undo Village of Euclid

v. Ambler Realty Co., 272 U.S. 365, and five decades of

municipal land-use controls since, leaving the law in chaos.

Appellants disingenuously assume that local govern-

ments would actually prefer the damage suits and poten-

tial liability their view would spawn to the time-honored

remedy of judgment declaring an ordinance unlawful. In

the first place the two are not exclusive. Appellants

themselves sought both. Landowners aggrieved by re-

strictions are plainly not going to abstain from challenging

their constitutionality, even if damages exist as an altern-

ative.

Further, appellants turn the precedents on their head

in arguing that invalidation of a statute is somehow more

extreme or onerous to states and localities than the bar-

rage of actions for damages their view of the law would

unleash. The cases holding damages the proper remedy

rather than derailment of a government program dealt

with clearly compensable takings—the flooding of private

property in Hurley v. Kincaid, 285 U.S. 95, or its actual

seizure in the Regional Rail Reorganization Act Cases, 419

U.S. 102. Compensation for the owners was a genuine

consideration there, and the government program was an

actual taking. Here, in sharp contrast, the ordinance

simply regulates the extent to which appellants may build

on their land. Their ritual invocation of their property

rights gives them no justification whatever to raid the

public treasury when those rights are controlled by an

ordinance found to be valid by the state courts closest to

the scene.

—

5

Appellants would have us believe invalidating a state

or local law—a remedy they correctly note is to be spar-

ingly applied (Br. p. 88)—is somehow more burdensome

to state and local government than imposing monetary

damages would be. It is not appellees who seek to change

the law or encourage litigation (Appellants’ Br. p. 39)

but rather appellants, who would have this Court create a

remedy in damages for those restricted by traditional

municipal land-use controls which would shift the focus

of the courts to complex damage suits, often requiring

jury trials.

Later in their brief, appellants appear to concede (Br.

p. 41) what they earlier disputed—that the damage claims

they seek to pursue would hobble local governments far

more than existing remedies. They laud the “deterrent

effect” (p. 41, n.2v) of damages on public officials. But

aside from the chill the threat of such suits would doubt-

less place on all but the mildest land-use controls, whatever

possible punitive value such actions might serve does not

remotely warrant the radical tampering with constitu-

tional principles appellants urge.

The radical nature of appellants’ proposal is borne out

by this Court’s consistent refusal to find a compensable

taking in case after case involving land-use controls far

more stringent than those at bar, where appellants remain

free to build up to five homes for resale on their five-acre

tract. Not only in Penn Central Transp. Co. v. City of

New York, 438 U.S. 104, but in Miller v. Schoene, 276

U.S. 272, and Goldblatt v. Town of Hempstead, 369 U.S.

590, this Court rejected claims such as those here ad-

vanced. Most recently, this Court rejected the taking

claim in Andrus v. Allard, ... U.S. ..., 100 S.Ct. 318,

involving severe restrictions on personalty. Even in

Pennsylvania Coal Co. v. Mahon, 260 U.S. 398, relied on

repeatedly by appellants, the plaintiff recovered no dam-

ages. And although, as appellants note, the state was not

a party to that suit, that was by the plaintiff company’s

choice.

a

6

This Court has consisténtly respected the traditional

responsibility and upheld the rights of local governments

to regulate the use of land within the community even

when highly respected values are assertedly infringed.

See Village of Belle Terre v. Boraas, 416 U.S. 1; Young

v. American Mini-Theatres, Inc., 427 U.S. 50. Here,

where no free-speech or right-to-travel claims exist, it

would be an unjustified departure from settled constitu-

tional principles to corrode so severely the right of the

locality to control the use of land within its borders.

POINT Il

The Radical Change In The Established Remedies

For Unconstitutional Land Use Regulation Advanced

By Appellants Would Disrupt Stable Economic Ex-

pectations And Frustrate Accepted Patterns Of

Zoning And Local Government Police Power Re-

sponsibilities.

Appellants’ attack is really aimed at zoning itself. By

creating a compensable taking when zoning exceeds con-

stitutional limits, it would subvert the structure of land-

use controls which our federal system property reserves to

the States and their political subdivisions. Village of

Belle Terre v. Boraas, supra; Village of Euclid v. Ambler

Realty Co., supra. Thus, controls of such critical matters

as land-use regulation for “sanitation, public health, and

parks and recreation” are “traditional government func-

tions of the several states.” National League of Cities v.

Usery, 426 U.S. 888 at 851, n.16.

_ In recognition of the principal state and local’ respon-

sibility for controlling land-use, federal environmental

laws have authorized delegation of many of their powers

to the States, e.g., water pollution permits (Clean Water

Act § 402, 33 U.S.C. § 1842), safe drinking water controls

(Safe Drinking Water Act, 42 U.S.C. § 1421), air emis-

7

sion controls (Clean Air Act § 110(a) (2), 42 U.S.C.

§ 7410), and flood plain management (National Flood

Insurance Act § 1861, 42 U.S.C. § 4102). While Congress

has explicitly found the federal interests in these environ-

mental land-use controls important, the Tenth Amendment

secures State authority and insures that “the states retain

broad discretion under the[se] regulations to control the

use of their land in the scope of economic development.”

Sierra Club v. E.P.A., 540 F.2d 1114, 1140 (D.C. Cir.

1976). This Court has recognized the state role in such

critical land-use issues as housing equity, Village of Ar-

lington Heights v. Metro. Housing Dev. Corp., 429 U.S.

252.

In the half century since Euclid, a stable pattern of

state and local land-use regulation has emerged. It is

locally implemented under state enabling laws so as to be

flexible and responsive to a region’s policies for economic

growth, maintenance of environmental quality, and energy

resource management, as well as responsive to local needs

and priorities. See, e.g., Daniel R. Mandelker, Environ-

mental and Land Controls Legislation (1976).

Nationally, a flexible and varied pattern of zoning has

emerged. Indeed, a locality can even use its zoning

authority to create the effective basis for real estate de-

velopment, as New York City has done with its Zoning

Resolution and its Landmarks and Historic Districts Law,

upheld by this Court in Penn Central Transp. Co. v. City

of New York, 438 U.S. 104. New York’s Zoning Resolu-

tion establishes the perimeter of commercial development. ”

Flexibility is provided in three ways: (1) variance pro-

cedures are available through the New York City Board

of Standards and Appeals, a typical zoning appeals

mechanism; (2) legislative changes are entertained

through the City’s planning commission; and (3) assess-

ment and valuation disputes are adjusted through the City

Tax Commission. The same elements, rather more simple

8

in structure, are found in the villages and towns around

New York State. New York State has fashioned similar

methods to deal with case-by-case adjustments needed as a

result of state land-use regulation, such as the Freshwater

Wetlands Appeals Board. Environmental Conservation

Law Art. 24, Title II. The courts may be called upon in

lieu of these administrative routes when an overly restric-

tive law must be set aside as unconstitutional. Fred F.

French Investing Co. v. City of New York, 39 N.Y. 2d

587, 350 N.E.2d 381 (1976), app. dism. 429 U.S. 990.

New York City’s zoning has even created value in the

space “adrift” above a site, and allowed its transfer as a

development right to another site. New York City Zoning

Regulation, §§ 74-79 to 74-79.8. The utility of adjusting

value in the context of setting development limitations on

land has been established by scholars, e¢.g., John J.

Costonis, Space Adrift (1974), and was recognized by this

Court in Penn Central Transp. Co. v. City of New York,

supra.

What appellants would have this Court do is construct

an inverse condemnation remedy to create a cause of ac-

tion in damages for the difference between “free market

value” and market value as regulated. To do so would

disrupt the entire Euclidian pattern of land-use. Such a

step would destroy the expectation of real estate de-

velopers, park managers, conservation interests, municipal

planning boards, and landowners themselves. Consider

the range of consequences such a disruption would involve:

How would the air rights over a site be measured?

Such a gloss on the Fifth Amendment’s “taking” provision

would enmesh the federal courts in explaining what the

appropriate measures of value are, in the absence of

“comparable” cases. Until the comparables were found

and a new set of patterns settled, there would be economic

and regulatory chaos. Predictability would be lost.

9

Consider situations where land is actually confiscated

to extend a public works project. Where the extension

was originally in the plans, the land taken is compensated

for at market value before the adjacent project was built;

where the extension was a new idea, the compensation is

based on the value of the site taken as increased in amount

because of the adjacent projects being built. United States

v. Miller, 317 U.S. 869; see “Eminent Domain—Enhanced

Value of Property”, 95 A.L.R. 8d 752 (1979). Should

the need to compensate be extended to unconstitutionally

restrictive zoning, as appellants urge, would some land-

owners be denied the windfall social increment of value

which public works projects might bring them?

Should the owner’s “highest and best use” in the mar-

ket value sense, unfettered by any land-use regulation or

public works like roads or nearby parks, fix the value of

the parcel? Or should the taking be computed from the

maximum constitutional regulation the state might have

adopted? Dealing with these questions could open a

Pandora’s box for the deferal courts.

Development “value” is a creature of what the zoning

laws will permit. That is the teaching of Euclid v. Ambler,

Appellants seek to undercut this system by having this

Court order that some Platonic ideal of free market value

offers an outside limit of value which the owner is entitled

to possess as a right of his ownership—abandoning Euclid

v. Ambler and regressing to an anachronistic notion of

total ownership, with the owner holding almost all the

proverbial bundle of sticks and the community and its

government nearly none. Their scheme would enmesh the

federal courts first in drawing a factual line as between

the outer limit of theoretically constitutional development

and unconstitutional restrictions, and second in fixing a

value for that potential difference in development inten-

sity. Aside from what this would do to federalism, courts

are ill-equipped to give advisory opinions as to which de-

10

velopment scheme is realistically the “highest and best

use” of a parcel. That entails the skills of an entrepreneur,

the uncertainties of financing and marketing, and the

finely-tuned legislative judgment of a zoning enactment.

What would happen, for instance, if appellants ob-

tained their inverse condemnation damages “award” and

the City of Tiburon were then to repeal its zoning

ordinance and allow high density garden apartments on

the site? Would they have to pay back, pro rata, the

damage award? Just as this Court awarded no compensa-

tion when it overturned a statute barring child labor on

long-since rejected substantive due process grounds,

Lochner v. N.Y., 198 U.S. 45, so none is required when

the police power in a land-use context is used to secure a

common public value. The Agins have not, after all, as we

have noted, been denied the right to develop their site.

What would happen if Tiburon decided to tax and

recapture any enhanced value which its adjacent public

works projects or its zoning controls bring to a parcel?

Might not such a tax eliminate the “windfall” not be a

fair and valid way to finance compensation for zoning

“wipe-outs” in a given city? Cf. Hagman and Misczynski,

Windfalls For Wipeouts (1978); D.G. Hagman, “Com-

pensable Regulation: A Way of Dealing With Wipeouts

From Land-Use Controls,” 54 U. of Detroit J. Urb. L.

45 (1976). Such a use of state or local real property

taxation is invited by the Agins’ proposal. If such taxa-

tion began, it would have a far’more stifling effect on real

estate development than do the current zoning and en-

vironmental land-use controls. Why should this Court

play the activist role appellants demand of it in promoting

such a change in state laws for real property use and

taxation?

There has been no physical invasion of the Agins’

property by Tiburon. No traditional use of the land has

11

been taken ; “loss of future profits—unaccompanied by any

physical property restriction—provides a slender reed

upon which to rest a taking claim.” Andrus v. Allard,

&) UE. <5 DOE Be...

POINT Il!

New York Has An Effective Land-Use Regulation

Scheme Which Appellants’ View Would Undermine.

Appellants’ jurisdictional statement contended New

York’s law in this area was unclear. This is inaccurate,

and in fact the evolution of the law in New York effectively

shows how the states may best furnish a remedy in land-

use cases in which a taking is claimed. New York’s Court

of Appeals held in Fred F. French Investing Co. v. City

of New York, supra, 39 N.Y.2d 587, 850 N.E.2d 381, app.

dism. 429 U.S. 990, that a clearly constitutional zoning

change creating a special park district which deprived

the owner of the use of the tract did not constitute a com-

pensable taking. New York limits such takings, in “all

but exceptional cases” (Fred F. French v. City of New

York, supra, 39 N.Y.2d at 598, 850 N.E.2d at 385), to

acts of government “in its enterprise capacity, where it

takes unto itself private resources in use for the common

good.” Lutheran Church in America v. City of New

York, 35 N.Y.2d 121, 128, 8316 N.E.2d 305, 310 (1974).

Recently in Matter of Spears v. Berle, 48 N.Y.2d

254, 397 N.E.2d 1304 (1979), New York clarified its

rule, holding, in a proceeding to review a state agency’s

denial of a permit to place fill in a protected wetlands

area, that “only when the evidence shows that the eco-

nomic value, or all but a bare residue of the value, of the

parcel has been destroyed has a ‘taking’ been estab-

lished ***.” 48 N.Y.2d at 268, 397 N.E.2d at 1308. The

court went on to rule that an aggrieved landowner assert-

ing facts which actually support a taking claim—unlike

appellants here—has a right to a trial on that issue.

12

The California courts properly held the factual asser-

tions at bar do not justify such a trial, since, in contrast

to Spears, the ordinance concededly permits applicants to

erect five homes on ‘heir five-acre parcel. What is sig-

nificant here is thet New York furnishes a remedy for

an aggrieved landowner under a balanced scheme which

adopting applicants’ radical view of the Fifth Amend-

merit would jeopardize.

Spears v. Berle upheld a state law protecting fresh-

water wetland areas from overdevelopment. New York

Environmental Conservation Law, Art. 24. Similar New

York statutes protect tidal westlands, needed as a breed-

ing ground for fish and shellfish, Environmental Conser-

vation Law, Art. 25, as well as the Adirondack region,

where the legislature has found overdevelopment would

destroy scenic and recreational values. New York Exec-

utive Law, Art. 27. All such statutes, as well as historic

landmark laws (Penn Central Transp. Co. v. City of New

York, supra) and zoning ordinances, would be placed in

jeopardy by a decision allowing damage suits where the

legislation is found to exceed constitutional limits. Iron-

ically, much of this legislation, notably historic district

laws and zoning itself, henefits individual landowners as

well as the community by augmenting the value of an

entire area. Appellants, who write as if self-appointed

crusaders for all landowners, are in fact betting with the

shirts of numerous owners of property whose investments

would be destroyed were these laws impaired.

Foster v. Scott, 186 N.Y. 577, 32 N.E. 976 (1893),

which appellants describe as “seminal” (Br. p. 29), has

nothing to do with this case. There the court properly

set aside an 1882 law purporting to deny compensation

to a certain landowner whose property was literally

taken by the municipality for a street. The zoning and

other land-use laws at which appellants tilt did not then

even exist.

13

CONCLUSION

The judgment of the Supreme Court of California

should be affirmed in all respects, or in the alterna-

tive, the appeal dismissed for want of a substantial

federal question.

Dated: New York, New York

March 21, 1980

Respectfully submitted,

Committee on Environmental Law

of the Association of the Bar of the

City of New York as Amicus Curiae

42 West 44th Street

New York, New York 10036

DANIEL RIESEL, Esq.

NICHOLAS A. ROBINSON, ESQ.

JOEL H. SACHS, Esa.

Ross SANDLER, Esq.

PHILIP WEINBERG, Esq.

Of Counsel