Opposition Brief — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

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No. 90-1212 FEB @

OFFICE OF THe cussk |

In The

Supreme Court of the United States

October Term, 1990

a

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TAHOE-SIERRA PRESERVATION COUNCIL,

INC., ET AL.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, ET AL.,

Respondents.

A

. of

Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

a

4

BRIEF FOR RESPONDENT STATE OF CALIFORNIA

IN OPPOSITION

a

vy

Daniet E. LUNGREN

Attorney General of the

State of California

RIcHARD M. FRANK*

Acting Assistant Attorney General

Carta J. Caruso

Deputy Attorney General

Office of the Attorney General

1515 K Street, Suite 511

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone (916) 445-8178

Counsel for Respondent

State of California

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED

Whether petitioners’ constitutional challenge to the

1984 Tahoe Regional Plan has been rendered moot

because: a) a federal court, immediately following

that Plan’s enactment, enjoined it from ever taking

effect; and b) respondent Tahoe Regional Planning

Agency subsequently replaced the 1984 Plan with a

new Regional Plan which differs materially from the

1984 Plan and has not been challenged in this litiga-

tion.

Whether the Court of Appeals properly applied the

ripeness standards developed by this Court in several

recent decisions to bar petitioners’ facial takings chal-

lenge to the 1984 Tahoe Regional Plan, where peti-

tioners by their own admission had failed to seek an

amendment to that Plan as specifically authorized in

the bistate Tahoe Regional Planning Compact.

—_—

ii

TABLE OF CONTENTS

Page

‘to. 3. 2 8s, Swrererrr rrr err te 2

JURISDICTION ...... 26-2. - nee eee eee ener e eens 2

STATUTORY PROVISIONS INVOLVED..........-.- 2

STATEMENT OF THE CASE.........-------+eeeeee 2

AGAR voici: cc cance cudosncesnesesecteeenesss.- 5

A. Petitioners’ Constitutional Claims are Moot

Because the 1984 Regional Plan Was Enjoined by

Federal Court Order from Taking Effect, and

Because it Has Been Wholly Superseded by a

Materially Different 1987 Regional Plan........ 5

B. The Court of Appea!s Properly Applied the

Ripeness Standards Developed by This Court

in Recent Decisions to Bar Petitioners’ Facial

Takings Challenge to the 1984 Regional Plan,

Where Petitioners Had Failed to Seek an

Amendment to That Plan as Specifically

Authorized in the Tahoe Regional Planning

Compact ........ ccc ee cece eee rece eee e eee eeee 7

1. The Unique Provision of the Tahoe

Regional Planning Compact Applicable to

This Proceeding Cannot Reasonably Be

Ignored by Petitioners .............+-+--. 7

2. The Ninth Circuit’s Decision in Rejecting

Petitioners’ Facial Takings Challenge to the

1984 Regional Plan Is Fully Consonant with

This Court’s Previously-Articulated Ripe-

mend Stamens... onc cccccscnstoreccacs 8

3. The Decision Below Articulates a Ripeness

Standard Fully Consistent with Those of

Cee CCG oc isc einsc cans aecvensdccse: 14

COME ATION x caine ckein na eeccvnackus bh cab eens sess 16

ili

TABLE OF AUTHORITIES

Page

CASEs:

Agins v. Tiburon, 447 U.S. 255 (1980) ............... 11

Beacon Hill Farm Associates v. Loudon County

Board of Supervisors, 875 F.2d 1081 (4th Cir.

REG SS RSG A Tipe 4 Oi toner a a 15

Eide v. Sarasota County, 908 F.2d 716 (11th Cir.

1990), cert. denied, 59 U.S.L.W. 3441 (1991) ....11, 15

Euclid v. Ambler, 272 U.S. 365 (1926) ............ 11, 12

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1986)....12, 13

Fry v. City of Hayward, 701 F.Supp. 179 (N.D. Cal.

CP CCESWEASRNESUSGA NERS S6 bu NWO K Koo 65e5050 604608 15

Goldblatt v. Hempstead, 369 U.S. 590 (1961)......... 13

Hodel v. Irving, 481 U.S. 704 (1987)................. 12

Keystone Bituminous Coal v. DeBenedictis, 480

etki s ces ak hk ACNK ab besvaestwn 12

Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.

1987), modified at 830 F.2d 968 (1987), cert.

denied, 484 U.S. 1043 (1988) ....................05. 8

Lewis v. Continental Bank Corp., 494 U.S. __, 110

ie I a a 6

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982)

MacDonald, Sommer & Frates v. Yolo County, 477

i. cc ORKKAChaG ub etwes ves kon ed 10, 13, 16

iv

TABLE OF AUTHORITIES —- Continued

Pennell v. City of San Jose, 485 U.S. 1 (1988)........ 10

People ex rel. Van de Kamp v. Tahoe Regional

Planning Agency, 766 F.2d 1308 (9th Cir. 1985) ...4, 5

Smithfield Concerned Citizens v. Town of

Smithfield, 907 F.2d 239 (1st Cir. 1990)......... 11, 15

Southern Pacific Transportation Co. v. City of Los

Angeles, 922 F.2d 498 (9th Cir. 1990).............. 14

Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, CA No. 87-2096........ 3

Tahoe-Sierra Preservation Councii v. Tahoe

Regional Planning Agency, 611 F.Supp. 110

I a ne a oe wats 2

Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, 638 FSupp. 126

ie he ae hey Peewee se has MOOS 2

Tahoe-Sierra Preservation Courcil v. Tahoe

Regional Planning Agency, 911 F.2d 1331 (9th

oe ER ET es a Se aay Cee 3, 6

Webster v. Fall, 266 U.S. 507 (1925) ................. 13

Williamson County v. Hamilton Bank, 473 U.S. 172

TR is £005 54 ch vas ck uebad need teehed ecaeeea’ passim

STATUTES

Indian Land Consolidation Act of 1983, Pub.L.

O7-457, Tee. Ti, FS BROR. ZONe, & BOF 6 vv cisvccvvewccs 12

Vv

TABLE OF AUTHORITIES - Continued

Page

INTERSTATE COMPACTS

Tahoe Regional Planning Compact, Pub.L. 96-551,

94 Stat. 3233 (1980); Cal. Gov. Code

§§ 66800-66801; N.R.S. §§ 277.190-277.200 .......... 4

Ge TE ascitic Reiterates ee er 5, 7. 8

OTHER AUTHORITIES

1B Moore’s Federal Practice J 0.402[2] 37 and n.

ee ee cna a 5 cia he Glare d e 13

Supreme Court Rules

I IE RH Sw 04 Kaa Wane c bees Geekuen eee 14

RT re rer ee ee 16

PE WR sek Soi es eee 14

No. 90-1212

-%

ad

In The

Supreme Court of the United States

; October Term, 1990

a.

—

TAHOE-SIERRA PRESERVATION COUNCIL,

INC., ET AL.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, ET AL.,

Respondents.

a.

sz

Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

».

—

BRIEF FOR RESPONDENT STATE OF CALIFORNIA

IN OPPOSITION

a

™

The State of California, Respondent, respectfully sub-

mits this brief in opposition to the petition for writ of

certiorari to the United States Court of Appeals for the

Ninth Circuit, filed January 28, 1991, by Tahoe-Sierra

Preservation Council, Inc., and named members thereof,

Petitioners.

+

OPINIONS BELOW

The opinion of the Court of Appeals (Petition Appen-

dix at 1a-35a) is reported at 911 F.2d 1331. The opinions of

the district court (Petition Appendix at 36a-52a and

53a-72a), contrary to petitioners’ representations (Petition

at 1-2), are reported at Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency, 611 FSupp. 110 (D.Nev.

1985) and Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, 638 F.Supp. 126 (D.Nev. 1986),

respectively.

JURISDICTION

Respondent State of California (hereinafter “Califor-

nia”) concurs in petitioners’ jurisdictional statement, with

the caveat that petitioners’ constitutional claims are moot

for the reasons set forth herein.

—_—— —-

sa

7

STATUTORY PROVISION INVOLVED

California adopts petitioners’ citation of statutory

provisions raised by this petition, as supplemented by

that of co-respondent Tahoe Regional Planning Agency

(hereinafter “TRPA”.)

STATEMENT OF THE CASE

California adopts the statement of the case contained

in co-respondent TRPA’s Brief in Opposition. However,

California offers the following supplemental observa-

tions:

First, a parallel action brought by petitioner Tahoe-

Sierra Preservation Council and individual property

owners is currently pending in the Ninth Circuit Court of

Appeals. (Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, CA No. 87-2096.) While the

complaint in that litigation raises the same substantive

claims addressed in the present action, the district court

in the case now before the Ninth Circuit analyzed and

resolved those claims in a significantly different manner.

Moreover, the Court of Appeals in the parallel appeal is

considering several of the same issues (e.g., mootness)

presented by the instant petition.

Second, this case does not reach this Court with the

constitutional issues raised by petitioners and addressed

by the Court of Appeals fully resolved. Substantial por-

tions of the case have been remanded to the district court

for further proceedings. (Tahoe-Sierra Preservation Council

v. Tahoe Regional Planning Agency, 911 F.2d 1331, 1342-1343

(9th Cir. 1990).) Indeed, the only aspect of the Court of

Appeals’ decision presently before the Court is the nar-

row holding that one of the petitioners’ constitutional

challenges to the 1984 Regional Plan is not ripe for

review.

Finally and most importantly, the 1984 Tahoe

Regional Plan (enacted by the Tahoe Regional Planning

Agency or April 26, 1984. and hereinafter “1984 Regional

Plan”) which forms the basis of petitioners’ challenge has

never had any actual effect on petitioners’ property, is no

longer in effect, and never will be. This is due to two

interrelated developments. Immediately upon TRPA’s

adoption of the 1984 Regional Plan, the People of the

State of California sued to enjoin the implementation of

that Plan, on the ground that it failed to satisfy the

stringent requirements of the bistate Tahoe Regional

Planning Compact. (Pub.L. 96-551, 94 Stat. 3233 (1980);

Cal. Gov. Code §§ 66800-66801; N.R.S. §§ 277.190-277.200;

hereinafter “bistate Compact.”)! The district court agreed,

issuing the injunction sought by California, and the Court

of Appeals affirmed. (People ex rel. Van de Kamp v. Tahoe

Regional Planning Agency, 766 F.2d 1308 (9th Cir. 1985).)

The 1984 Regional Plan consequently never took effect.

While that litigation was pending, TRPA, California,

petitioner Tahoe-Sierra Preservation Council and

numerous other interested parties undertook painstaking

negotiations and mediation efforts designed to create a

new Regional Plan which could satisfy both the legal

requirements of the bistate Compact and the disparate

interests of the parties involved. Those efforts, which

consumed three years, ultimately bore fruit: in July 1987,

TRPA adopted a new Regional Plan which expressly

supersedes the 1984 Plan at issue here. The pending

litigation was then settled and the injunction against the

now-superseded 1984 Regional Plan was dissolved. As

TRPA notes in its Brief in Opposition (at 13), the 1987

Plan is markedly different from that challenged in the

present lawsuit. Petitioners, moreover, concede (Petition

1 This stands in stark contrast to petitioner Tahoe-Sierra

Preservation Council’s opposite contention - advanced here

and in related litigation — that the 1984 Regional Plan constitu-

ted an excessive and unconstitutional “overregulation” of pri-

vate property.

at 8, n.5), that the 1987 Regional Plan is not at issue

here.

+

ARGUMENT

Petitioners’ challenge to TRPA’s 1984 Regional Plan has

been rendered moot as a result of that Plan’s being enjoined

by the district court and subsequently superseded by the

1987 Regional Plan. Moreover, the Court of Appeals properly

followed applicable precedents in holding that petitioners’

facial takings challenge to the 1984 Regional Plan was not

ripe for judicial determination, due to petitioners’ failure to

seek an amendment to that Plan as specifically authorized

under Article V(a)(2) of the bistate Compact. Accordingly,

this case does not warrant review.

A. Petitioners’ Constitutional Claims are Mcot

Because the 1984 Regional Plan Was Enjoined by

Federal Court Order from Taking Effect, and

Because it Has Been Wholly Superseded by a Mate-

rially Different 1987 Regional Plan.

Petitioners seek certiorari to review the ripeness stan-

dard applied by the Ninth Circuit to takings claims aris-

ing from the 1984 Regional Plan. However, petitioners’

constitutional claims are moot because an injunction -

issued by the district court and sustained on appeal by

the Ninth Circuit —- prevented that Plan from ever being

implemented. (See People ex rel. Van de Kamp v. Tahoe

Regional Planning Agency, supra, 911 F.2d 1331.)?

2 In her concurring opinion below, Judge Fletcher rea-

soned that because the 1984 Regional Plan had never taken

(Continued on following page)

6

Moreover, the 1984 Regional Plan was explicitly

superseded by TRPA’s July 1987 adoption of a new

Regional Plan that currently governs planning and devel-

opment activities within the Tahoe Basin. The 1987

Regional Plan was the product of lengthy negotiations

that included petitioner Tahoe-Sierra Preservation Coun-

cil, dramatically differs from the terms of the superseded

1984 Regional Plan, and is not at issue in this litigation.

Federal courts may only adjudicate actual, ongoing

cases or controversies. This requirement subsists through

all stages of federal judicial proceedings, trial and appel-

late. (Lewis v. Continental Bank Corp., 494 U.S. __, 110

S.Ct. 1249, 1253-1254 (1990).) As noted, petitioners never

were affected by the 1984 Regional Plan because a federal

court enjoined that Plan before it was ever implemented.

And, since the 1984 Regional Plan has now been super-

seded by the enactment of the 1987 Regional Plan, peti-

tioners’ lawsuit is devoid of any present, live controversy.

A petition for certiorari ought not be granted to review a

moot claim. (See id.)

(Continued from previous page)

effect, petitioners had failed to establish the key element of

causation of their takings claims. (Tihoe-Sierra Preservation

Council v. Tahoe Regional Planning Agency, supra, 911 F.2d at

1343-1344 (Fletcher, J., concurring).) California commends this

analysis to the Court’s attention, and believes it provides a

fully adequate and independent basis upon which to deny the

petition for writ of certiorari.

7

B. The Court of Appeals Properly Applied the Ripe-

ness Standards Developed by This Court in Recent

Decisions to Bar Petitioners’ Facial Takings Chal-

lenge to the 1984 Regional Plan, Wiere Petitioners

Had Failed to Seek an Amendment to That Plan as

Specifically Authorized in the Tahoe Regional Plan-

ning Compact.

1. The Unique Provision of the Tahoe Regional

Planning Compact Applicable to This Proceed-

ing Cannot Reasonably Be Ignored by Peti-

tioners.

This case involves interpretation of the Tahoe

Regional Planning Compact, a uniquely-crafted docu-

ment designed by California, Nevada and the United

States Congress. That Compact deals both with the

unique environmental features of Lake Tahoe, and the

complex governmental relationships inherent to the

region. (See co-respondent TRPA’s Brief in Opposition at

8-11.)

The unique bistate Compact provides those affected

by a Regional Plan a focused opportunity to seek relief

from provisions of that Plan. Compact Article V(a)(2)

specifically requires TRPA to act within 180 days upon a

property owner’s request for an amendment to TRPA’s

Regional Plan.? Petitioners failed to avail themselves of

that procedural opportunity prior to commencing this

litigation.

3 Co-respondent TRPA has effectively rebutted petitioners’

meritless contentions that recourse to the administrative rem-

edy afforded by Article V(a)(2) would be futile or barred by the

statute of limitations. (See TRPA Brief in Opposition at 20,

n.16.)

Article V(a)(2) establishes a unique and specific pro-

cedure for seeking relief from otherwise-applicable Plan

provisions. Accordingly, this Court’s ripeness principles —

requiring a final decision before a takings claim may be

addressed on the merits - was appropriately applied by

the court below to bar petitioners’ takings claims. (See

Kinzlt v. City of Santa Cruz, 818 F.2d 1449 (9th Cir. 1987),

modified at 830 F.2d 968 (1987), cert. denied, 484 US.

1043 (1988).)

2. The Ninth Circuit’s Decision in Rejecting Peti-

tioners’ Facial Takings Challenge to the 1984

Regional Plan Is Fully Consonant with This

Court’s Previously Articulated Ripeness Stan-

dards.

Petitioners assertedly mount a “facial” challenge to

the 1984 Regional Plan,‘ claiming a taking without just

compensation because various aspects of the Plan

allegedly limit their ability to develop their properties.

They argue that their facial challenge should be exempted

from the constitutional requirement that landowners seek

a final decision as to the uses available for their property.

Petitioners’ arguments, however, ignore the ineluctable

4 Petitioners, in their cpposition to defendants’ motions to

dismiss the complaint on ripeness and other grounds,

expressly sought to limit their challenge to the 1984 Regional

Plan to a facial attack (District Court Clerk’s Record 28 at

70-72), despite the specific aspects of the complaint which

suggest an as-applied challenge (e.g., the particularized infor-

mation in the appendices to complaint containing information

as to the land use capability of each parcel at issue in the

lawsuit (Petition Appendix at 195a-199a)). Defendants below

framed their responses consistent with petitioners’ characteriz-

ation of their claims as facial.

fact that a constitutional takings claim cannot be analyzed

before a final decision as to the allowable uses of the

subject property has been reached.°®

In Williamson County v. Hamilton Bank, 473 U.S. 172

(1985), this Court specifically identified the ripeness

requirements for takings claims raised under the Just

Compensation Clause of the Fifth and Fourteenth

Amendments. To pursue a takings claim, a landowner

must obtain a final decision from local regulatory author-

ities regarding the uses to which the property in question

can be put. (Id. at 186, 199-200.) The “final decision”

standard includes a requirement that the property owner

seek variances from the applicable regulations. (Id. at

191.)

The reasons for the final decision requirement go to

the nature of the constitutional claims themselves. (/d. at

190-191, 199-200.) As to constitutional takings claims, this

Court reasoned that a final decision is necessary in order

to analyze factors of particular significance: the economic

impact of the challenged action and the extent to which it

interferes with reasonable investment-backed expecta-

tions. (Id. at 190-191.) These criteria cannot be deterniined

until a final decision has been made by the regulating

5 In fact, petitioners’ real disagreement appears to be with

the ripeness standards identified in this Court’s recent takings

decisions, rather than the Court of Appeals’ application of

those standards. (See, e.g., Petition at 4-6.)

6 A second ripeness requirement articulated in Williamson

— that a landowner must utilize state procedures which provide

for obtaining just compensation (Id. at 194) — is not at issue

here.

10

body as to the nature and extent of the development that

will be permitted. (See MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340, 348-349 (1986); Williamson County v.

Hamilton Bank, supra, 473 U.S. at 199-200.)

The Court stated this principle forcefully in Mac-

Donald, Sommer & Frates v. Yolo County, supra, 477 U.S. at

348:

“It follows from the nature of a regulatory tak-

ings claim that an essential prerequisite to its

assertion is a final and authoritative determina-

tion of the type and intensity of development

legally permitted on the subject property. A

court cannot determine whether a regulation

has gone ‘too far’ unless it knows how far the

regulation goes.”

Significantly, petitioners’ assertion that a facial tak-

ings claim is somehow exempt from the final decision

ripeness requirement does not address the foregoing con-

stitutional analysis developed by this Court in Wiiliamson

and MacDonald. Moreover, petitioners’ curious theory is

effectively rebutted by the Court’s recent decision in Pen-

nell v. City of San Jose, 485 U.S. 1 (1988). Pennell rejected as

premature a landowner’s facial takings challenge to a

municipal rent control ordinance.” Citing an administra-

tive relief procedure contained in the ordinance, the

Court held that it would be premature to consider the

takings claim where the plaintiff had not first availed

7 While there is some ambiguity as to the characterization

of the claims raised in Pennell, this Court’s analysis of the

takings claims was a facial analysis of an ordinance as yet

unapplied to a specific set of facts. The ordinance at issue in

Pennell was attacked as “facially unconstitutional.” (Id. at 4.)

11

himself of that administrative remedy. (Jd. at 8-10.) Citing

its earlier takings decisions, the Court admonished -

again — that such claims must necessarily be resolved in

the context of a concrete factual setting. (See also Agins v.

City of Tiburon, 447 U.S. 255, 262 (1980), in which the

Court rejected the landowners’ facial takings claim

because they were “free to pursue their reasonable invest-

ment expectations by submitting a development plan to

local officials.”)

This reasoning has been embraced by the lower

courts as well. As the First Circuit recently observed in

Smithfield Concerned Citizens v. Town of Smithfield, 907 F.2d

239, 242 (1st Cir. 1990):

“Under this particular [takings theory], the step

of applying for variances must of necessity

become a prerequisite to bringing a due process

challenge — whether facial or as applied — because

only by applying for variances would it become

possible to learn whether or not the zoning ordi-

nance had the same effect as a taking by emi-

nent domain. If a variance were granted, any taking

claim would disappear.” (Emphasis added.)

Petitioners’ efforts to abrogate these established ripe-

ness criteria regarding facial claims are unsupported by

the authorities they cite. Euclid v. Ambler, 272 U.S. 365, 384

(1926), for »xample, considered a due process and equal

protection challenge to a land use ordinance. These are, of

course, different constitutional challenges than the tak-

ings claim raised here. (See Eide v. Sarasota County, 908

F.2d 716 (11th Cir. 1990), cert. denied, 59 U.S.L.W. 3441

(1991), for a discussion of different ripeness tests for

various constitutional claims.) Moreover - and this flaw

undermines petitioners’ reliance on all Supreme Court

12

cases they cite - Euclid failed to identify or discuss the

ripeness criteria applicable to current takings challenges.

In short, the circumstances which led this Court to con-

sider claims in Euclid without requiring that a variance be

applied for do not exist in this case.

Other Supreme Court precedents relied upon by peti-

tioner to support the notion that facial challenges are not

subject to the final decision ripeness requirements sim-

ilarly fail to address the ripeness requirement. (See, e.g.,

Keystone Bituminous Coal v. DeBenedictis, 480 U.S. 470

(1987) (the procedural posture of Keystone bears note: the

parties filed a joint motion asking the lower court to

certify the facial challenge for appeal) (id. at 493-494).) In

Hodel v. Irving, 481 U.S. 704 (1987) — another case cited by

petitioners — this Court considered a variety of prelimi-

nary issues, including standing, but did not address the

question of ripeness.®

Nor does First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1986), support peti-

tioners’ position. That case came to the Court in a pro-

cedural posture entirely different from the present

litigation. In First English, the Court was asked to assume

that an unconstitutional taking had occurred; the sole

8 In any event, petitioners’ characterization of this case as

a facial challenge is surprising in that the plaintiffs in Hodel

were heirs or representatives who had not received otherwise-

inheritable interests in property, due to the operation of section

207 of the Indian Land Consolidation Act of 1983 (Pub.L.

97-459, Tit. II, 96 Stat. 2519.) (Id. at 709-710).

13

issue was the appropriate remedy for such an uncompen-

sated taking. (Id. at 311.) Accordingly, the ripeness issue

was neither raised nor discussed. However, the Court

there took pains to distinguish cases such as Williamson

County v. Hamilton Bank, supra, 473 U.S. 172, and Mac-

Donald, Sommer & Frates v. Yolo County, supra, 477 U.S.

340, where “factual disputes yet to be resolved by state

authorities might still lead to the conclusion that no tak-

ing occurred.” (Id.) First English thus provides utterly no

support for petitioners’ claim.

It is axiomatic that decisions which fail to address or

resolve a particular issue cannot serve as binding prece-

dent for subsequent cases that raise the question. (Webster

v. Fall, 266 U.S. 507, 511 (1925); 1B Moore’s Federal Prac-

tice, ¢ 0.402[2] 37 and n.34 (2d. ed. 1988).) Because the

Supreme Court cases embraced by petitioners simply do

not address the ripeness issue, they are of no precedential

value on this point.?

Petitioners have failed to establish that the decision

below conflicts with applicable decisions of this Court.1°

9 Other cases cited by petitioners similarly lack discussion

of ripeness issues: Goldblatt v. Hempstead, 369 U.S. 590 (1961),

an action to enjoin further mining for failure to comply with

local ordinances, contains no discussion of ripeness require-

ments. Also, Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982), which involved a physical taking, fails to

address ripeness principles.

10 Petitioners’ further argument that the decision below

conflicts with prior Ninth Circuit precedent fails for three

(Continued on foilowing page)

14

They have therefore failed to present a proper basis for

granting the petition for certiorari. (Supreme Court Rules,

Rule 10.1(c).)

3. The Decision Below Articulates a Ripeness

Standard Fully Consistent with Those of Other

Circuits.

Petitioners mistakenly assert that the decision below

articulates a ripeness standard in conflict with recent

opinions from the First, Fourth, and Eleventh Circuits.

(Petition at 20-22, citing Smithfield Concerned Citizens v.

Town of Smithfield, supra, 907 F.2d 239 (1st Cir.); Beacon Hill

Farm Associates v. Loudon County Board of Supervisors, 875

F.2d 1081 (4th Cir. 1989); and Eide v. Sarasota County,

supra, 908 F.2d 716 (11th Cir.).)

However, none of those cases involved the type of

regulatory takings claims asserted by petitioners. There-

fore, the ripeness standards applied to these distinct

claims are inapposite.

(Continued from previous page)

distinct reasons. First, intra-circuit conflict does not constitute

a stated ground for Supreme Court review. (See Supreme Court

Rules, Rule 10.1.) Second, petitioners’ reliance on the Ninth

Circuit cases cited in the petition is flawed because the facts of

those decisions make them inapposite to the present case.

Finally, as petitioners themselves are ultimately forced to con-

cede (See Petition at 24, n.16), the decision below is consistent

rather than at variance with other Ninth Circuit precedents.

(See, e.g., Southern Pacific Transportation Co. v. City of Los

Angeles, 922 F.2d 498 (9th Cir. 1990).)

15

In Beacon Hill Farm Associates v. Loudon County Board

of Supervisors, supra, 875 F.2d at 1084-5, the court consid-

ered a facial challenge to a land use regulation on due

process and equal protection grounds. In Smithfield Con-

cerned Citizens v. Town of Smithfield, supra, 907 F.2d at 242,

analyzed above, the court considered a facial substantive

due process claim to a land use regulation, which it found

distinct from a due process takings claim. Neither of

these cases involved a claim, as made by petitioners, of

an unconstitutional taking of property. (Smithfield, supra,

907 F.2d at 241; Beacon Hill, supra, 875 F.2d at 1084.) That

these cases each found the constitutional claims raised to

be ripe without requiring that a variance be applied for

(Smithfield, supra, 907 F.2d at 242; Beacen Hill, supra, 875 F.

2d at 1085) does not establish a conflict with the Ninth

Circuit’s ripeness requirements for a different constitu-

tional claim."!

Similarly, Eide v. Sarasota County, supra, 908 F.2d 716,

does not present a conflict with the Ninth Circuit’s opin-

ion below. In Eide, the court considered an as-applied

“arbitrary and capricious due process claim” and an

equal, protection claim, and found these claims unripe

because a final decision as to the uses permitted upon the

property in question had not been obtained. (/d. at

723-725.) It is significant that the Eide court, in determin-

ing the ripeness standards applicable to the claims it

faced, identified the ripeness standards for Fifth and

‘1 Another factually inapposite case relied upon by peti-

tioners is Fry v. City of Hayward, 701 FSupp. 179 (N.D. Cal.

1988) which raises a facial equal protection claim.

16

Fourteenth Amendment takings claims as those articu-

lated in Williamson County, supra, and MacDonald, Sommer,

& Frates, supra. (Id. at 720-721.) As California identified

supra, it is precisely these standards which were applied

to petitioners’ takings claims by the Ninth Circuit below.

Petitioners’ claim that the decision below conflicts

with those of other circuit courts of appeal is, therefore,

without merit. Petitioners have failed to demonstrate any

principled basis on which this case warrants Supreme

Court review. (Cf. Supreme Court Rules, Rule 10.1 (a).)

.

vr

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated: February 28, 1991

Respectfully submitted,

DanieL E. LUNGREN

Attorney General

RicHARD M. Frank, Acting

Assistant Attorney General*

Carta J. Caruso

Deputy. Attorney General

Counsel for Respondent

State of California

*Counsel of Record

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