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

MOTION FILED

FES 26 159

No. 90-1212

In The

Supreme Court of the United States

October Term, 1990

La.

4

TAHOE-SIERRA PRESERVATION

COUNCIL, INC., et al.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, et al.,

Respondents.

—

4

Petition for Writ of Certiorari

to the United States Court of

Appeals for the Ninth Circuit

7%

4

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT

OF PETITIONERS TAHOE-SIERRA

PRESERVATION COUNCIL, INC., ET AL.

,

4

RONALD A. ZUMBRUN

*EDWARD J. CONNOR, JR.

TimotHy V. Kassouni

*Counsel Of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

COCKLE LAW BRIEF PRINTING CO., (800) 225-49

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED..................

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF PACIFIC LEGAL FOUNDATION IN

SUPPORT OF PETITIONERS TAHOE-SIERRA

PRESERVATION COUNCIL, INC., ET AL. .......

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

TAHOE-SIERRA PRESERVATION COUNCIL,

ee re Re ee eee eee Tee eer

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

STATBMamres OF Trin CARE... .........cccccevons

SUMMARY OF THE ARGUMENT .................

OP Fe ee eT eee re eT ePU TET RET Eee

I. AS A MATTER OF PUBLIC POLICY, PRIVATE

PROPERTY OWNERS SHOULD NOT BE

REQUIRED TO APPLY FOR AN AMENDMENT

TO THE LAND USE LAW ITSELF BEFORE

SEEKING JUDICIAL RELIEF...................

Il. THE NINTH CIRCUIT’S NEW “RIPENESS”

RULE CONFLICTS WITH DECISIONS OF THIS

COURT AND OTHER CIRCUIT COURTS......

ee a er ers Serre Pr rer ee

il

TABLE OF AUTHORITIES CITED

Page

CAsEs

Abbott Laboratories v. Gardner, 387 U.S. 136

CHOED i006 > 'b.k ns aau'eeee eee eee Eee nae oes 11

Agins v. Tiburon, 447 U.S. 255 (1980) ............... 12

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304

COPUTD <5 oon vccnckysgoheseuebeearaenl anus 2, 13, 14

Hodei v. Irving, 461 U.S. 704 (1967)................-. 2

Hodel v. Virginia Surface Mining and Reclamation

Association, Inc., 452 U.S. 264 (1981).............. 12

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ........... 2, 82, 13

Lynch v. Household Finance Corporation,

ED SEB BT hs koe nas re ak eer se cae ane 15

Nollan v. California Coastal Commission,

eS rte he rer ere 2

Village of Euclid v. Ambler Realty Co.,

rep A ee Pee te ee eee 12

Williamson County Regional Planning Commis-

sion v. Hamilton Bank, 473 U.S. 172 (1985)...7, 8, 13

STATUTES

Cal. Ganw't Se 6 Sion onceetsepueusekosesaeeers 10

OS GOR sinks aka destiny sasea eee aes 6

Peew. Ham. Bt. @ Bry wh viinvaccs veusoeccacacesverss. 6

Pub. L. No. 96-551, 94 Stat. 3233 (1980).............. 6

RULES

Spree C00 TRE OF oss aii ieee ences l

No. 90-1212

a.

4

In The

Supreme Court of the United States

October Term, 1990

a

» A

TAHOE-SIERRA PRESERVATION

COUNCIL, INC., et al.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, et al.,

Respondents.

yN

4

Petition for Writ of Certiorari

to the United States Court of

Appeals for the Ninth Circuit

—_ =

vy

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF PACIFIC LEGAL FOUNDATION IN

SUPPORT OF PETITIONERS TAHOE-SIERRA

PRESERVATION COUNCIL, INC., ET AL.

a.

4

Pursuant te Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits the annexed brief

amicus curiae in support of petitioners, Tahoe-Sierra Pre-

servation Council, et al. Written consent to the filing of

this brief has been granted by counsel for petitioners.

This consent has been lodged with the clerk of this Court.

Consent has been withheld by counsel for respondent,

Tahoe Regional Planning Agency.

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in

matters affecting the public interest. PLF has over 20,000

contributors and supporters located throughout the coun-

try and maintains its principal office in Sacramento, Cali-

fornia. Policy is set by a Board of Trustees composed of

concerned citizens, the majority of whom are attorneys.

PLF’s Board evaluates the merits of any contemplated

legal action and authorizes such legal action only when

the Foundation’s position has broad support within the

general community. PLF’s Board has authorized the filing

of an amicus curiae brief in this matter.

Amicus seeks here to augment the argument in the

petition for writ of certiorari. It is believed that PLF’s

public policy perspective and litigation experience in

support of private property rights will provide an addi-

tional viewpoint with respect to the constitutional issues

presented. PLF has participated in numerous cases

involving issues arising under the Just Compensation and

Due Process Clauses of the Fifth and Fourteenth Amend-

ments to the United States Constitution. Its attorneys

were counse! of record in Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), and PLF participated as

amicus curiae in Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987); Hodel v. Irving,

481 U.S. 704 (1987); and First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304

(1987).

The per curiam opinion below adds yet another

“ripeness” hurdle for property owners seeking redress

under the Fifth Amendment’s Just Compensation Clause.

In holding that a property owner must first seek an

amendment to the land use law itself, even in a facial

challenge, the opinion flouts the precedents of this Court

and has created an unequivocal conflict with the deci-

sions of other Circuit Courts.

The opinion also fails to acknowledge the practical

effect of its holding. Requesting a government agency to

amend a land use ordinance or statute can be enormously

expensive, time-consuming, and utterly futile. Under the

Ninth Circuit’s per curiam opinion, property owners may

nave the “technical” right to seek just compensation

under the Fifth Amendment for overburdensome govern-

mental regulations, but few will have the economic

resources and psychological tenacity needed to comply

with this new and novel “ripeness” requirement. The

public interest supports practical, commonsense limita-

tions on expansions to the increasingly dilatory “ripe-

ness” doctrine.

It is respectfully requested that this motion for leave

to file the annexed brief amicus curiae be granted.

DATED: February 26, 1991.

Respectfully submitted,

RonaALD A. ZUMBRUN

*Epwarp J. CoNNor, Jr

TimotHy V. Kassoun!

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

By

Epwarp J. Connor, JR.

Attorneys for Amicus Curiae,

Pacific Legal Foundation

No. 90-1212

a.

—_

In The

Supreme Court of the United States

October Term, 1990

,%

vv

TAHOE-SIERRA PRESERVATION

COUNCIL, INC., et al.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, et al.,

Respondents.

a

—_

Petition for Writ of Certiorari

to the United States Court of

Appeals for the Ninth Circuit

a

vr

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF

PETITIONERS TAHOE-SIERRA PRESERVATION

COUNCIL, INC., ET AL.

.

wr

INTEREST OF AMICUS CURIAE

The interests of amicus are set forth in the preceding

motion for leave to file brief amicus curiae of Pacific

Legal Foundation.

>

STATEMENT OF THE CASE

This case presents the question of whether the “ripe-

ness” doctrine in the land use context has been stretched

beyond its legal and practical limits by the Ninth Cir-

cuit’s per curiam opinion in Tahoe-Sierra Preservation

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

1331 (9th Cir. 1990). See Petitioners’ Appendix A at la.

Petitioner Tahoe-Sierra Preservation Council repre-

sents over 300 individuals who own single-family lots on

‘the Nevada side of Lake Tahoe, and who wish to build

homes. In 1984, the Tahoe Regional Planning Agency

(TRPA) adopted the Regional Plan at issue in this case.'

The petitioners challenged the express provisions of the

Regional Plan as “directly and specifically prohibit[ing]

any reasonable, practical, viable, beneficial, or feasible

use of thousands of legally-created lots or parcels of

privately-owned real property in the Lake Tahoe Basin

...." Petitioners’ Appendix F at 126a.

The Ninth Circuit dismissed as unripe petitioners’

second and fifth causes of action for damages resulting

from the regulatory taking cf private property without

just compensation. The court concluded that petitioners

“were required to request that TRPA amend the

[Regional] Plan before they filed this action, and that

their failure to do so renders unripe their taking

' TRPA was created by the Tahoe Regional Planning Compact

between the states of California and Nevada. Pub. L.

No. 96-551, 94 Stat. 3233 (1980); Cal. Gov’t Code § 66801; Nev.

Rev. Stat. § 277.200. See Petitioners’ Appendix E at 73a.

claims ....” Tahoe-Sierra, 911 F.2d at 1336. Petitioners’

Appendix A at 9a.

The court reasoned that an application for an amend-

ment to the Regional Plan would afford petitioners the

opportunity for an “administrative” remedy regarding

their plans for development. This “administrative” rem-

edy, the court noted, “offers the same possibility regard-

ing development as does a system for requesting

variances.” Id. The court found no reason to distinguish

an application for administrative relief, as required in

Williamson County Regional Planning Commission v. Ham-

ilton Bank, 473 U.S. 172 (1985), from an application for an

amendment to the land use law itself: “Certainly as long

as the process is limited and reasonably short in duration,

and is guaranteed to culminate in either a ‘yes’ or a ‘no,’

we believe the plaintiffs are required to pursue it.” Tahoe-

Sierra, 911 F.2d at 1339. Petitioners’ Appendix A

at 15a-16a.

- =

-_

SUMMARY OF THE ARGUMENT

The court below iias neglected to consider the impact

of its new “ripeness” rule on private property owners

who, after already expending substantial time and money

in an effort to comply with other ripeness requirements,

must now leap yet another technical (but costly) hurdle in

order to have their day in court. Governmental entities

will no doubt adopt new “amendment” procedures for

the sole purpose of avoiding and delaying substantive

judicial review of Jand use regulations.

The court also failed to acknowledge the existence of

a long line of conflicting court decisions, including deci-

sions by this Court. These decisions hold that the tradi-

tional “ripeness” analysis is only relevant to “as-applied”

takings claims, as opposed to “facial” claims which con-

tend that the “mere enactment” of the statute or ordi-

nance in and of itself results in a taking. The Ninth

Circuit was overly intent on applying the “finality”

requirement of Williamson County even though that was

an “as-applied” case. Here the petitioners are asserting

that the Regional Plan on its face caused a taking. As will

be shown, the Ninth Circuit’s error has resulted in a

conflict among the Circuit Courts regarding the applica-

ble ripeness analysis for facial takings claims.

If the decision below is allowed to stand, property

owners will have little hope of ever seeing the light at the

end of the “ripeness” tunnel. This Court should grant the

petition in order to put reasonable limits on the “ripe-

ness” doctrine, and to reaffirm the right of private prop-

ertv owners to obtain judicial review of overburdensome

governmental enactments which directly impact the right

to make reasonable use of property.

,%

_

ARGUMENT

I

AS A MATTER OF PUBLIC POLICY, PRIVATE

PROPERTY OWNERS SHOULD NOT BE

REQUIRED TO APPLY FOR AN AMENDMENT

TO THE LAND USE LAW ITSELF BEFORE

SEEKING JUDICIAL RELIEF

Within the last decade, the “ripeness” doctrine

has become the single most litigated issue in Fifth

Amendment takings cases. A governmental entity which

does not assert one of the increasingly long list of avail-

able “ripeness” defenses could probably be accused of

malpractice.

Lack of precedent notwithstanding, the Ninth Circuit

has created yet another technical “ripeness” defense for

the benefit of governmental entities: failure of the prop-

erty owner to seek an amendment to the land use law

itself. This new rule, in conjunction with the already

burdensome “ripeness” requirements of finality and

exhaustion of state compensation procedures, transforms

the Fifth Amendment’s just compensation mandate into a

theoretical pipe dream for private property owners.

There are several reasons why this new “ripeness”

requirement will have significant impacts on private

property owners—impacts which were not even consid-

ered by the Ninth Circuit. First, land use applications can

carry hefty price tags. Some cities and counties charge

thousands of dollars in fees just for the privilege of

asking for an amendment to the land use law.

Second, the cost of developing the information

needed to support an application to amend a land use

statute or ordinance can be enormous. Most general land

use laws in California (called “general plans”) consist of

hundreds of pages of detailed policy and environmental

analysis prepared by professional land use planners and

funded by tax dollars. California actually requires all

general plans to contain a number of mandatory ele-

ments, including the impact of land use designations on

housing, conservation, noise, safety, open space, and

10

transportation.2 A general plan amendment application,

which would now be required by the Ninth Circuit’s

decision, would likewise have to address these manda-

tory elements. Private property owners, the majority of

whom are middle-class families on fixed budgets, should

not be required to hire environmental consultants and

experts at astronomical fees in order to “formally”

request an amendment to a land use law.

If the property owner’s amendment application did

not include this type of detailed policy and environmen-

tal analysis, what would prevent a governmental entity

from refusing to even consider the application? If the

application were deemed incomplete for this reason, the

property owner would never be able to seek just compen-

sation for a regulatory taking because the case would

never be ripe.

The substantial amount of time it would take to

submit a complete amendment application also raises

statute of limitations problems. In the present case, the

property owners were faced with a 60-day statute of

limitations to initiate litigation “arising out of the adop-

tion or amendment of the regional plan” as provided in

Art. VI(j)(4) of the California-Nevada Compact. Peti-

tioners’ Appendix E at 105a. See also Brief of Petitioners

at n.17. It would be virtually impossible to gather the

necessary information for an amendment application in

such a short period of time, especially in California,

where it often takes years for cities and counties to amend

their general plans.

2 See Cal. Gov’t Code § 65302.

11

Finally, some local agencies in California have

adopted ordinances which require voter approval for any

amendment to the general plan. Property owners who

request such amendments are thus required to personally

pay for the cost of special elections. One such ordinance

was recently adopted, by initiative, in Monterey, Califor-

nia. Property owners in these cities must now pay for a

special election before their Fifth Amendment just com-

pensation claims will be ripe for judicial review.

These practical, commonsense concerns were com-

pletely ignored by the Ninth Circuit, which focused

solely on the fact that “TRPA specifically invites amend-

ment proposals and promises action on them within a

reasonable time.” Tahoe-Sierra, 911 F.2d at 1337. Peti-

tioners’ Appendix A at 10a.?

This simplistic, rigid view of the land use legislative

process fails to recognize the due process rights of prop-

erty owners. Perhaps this was due to an inherent belief

that the constitutional rights of property owners are of

collateral importance. The Ninth Circuit said: “Suffice it

to say that even the framers of the fifth amendment saw

the wisdom of enumerating life, liberty, and property

separately, and that few of us would put equal value on

the first and the third.” Tahoe-Sierra, 911 F.2d at 1338 n.5.

Petitioners’ Appendix A at 13a. But as observed in Judge

Kozinski’s dissent, this view reflects a “thinly disguised

> In Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), this

Court required courts to “evaluate both the fitness of the issues

for judicial decision and the hardship to the parties of with-

holding court consideration” when addressing ripeness issues.

Id. at 149 (emphasis added).

12

contempt” for constitutionally protected property rights.

In any event, the reasoning of Judge Kozinski’s dissent

regarding the necessity of a new “ripeness” hurdle, in

and of itself, demonstrates great need for review by this

Court.

II

THE NINTH CIRCUIT’S NEW “RIPENESS”

RULE CONFLICTS WITH DECISIONS OF

THIS COURT AND OTHER CIRCUIT COURTS

Aside from the public policy concerns discussed

above, the Ninth Circuit’s per curiam opinion conflicts

with the well-established precedents of this Court and

other Circuit Courts. In a line of cases stretching from

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), to

Keystone Bituminous Coal Association v. DeBenedictis,

480 U.S. 470 (1987), this Court has consistently addressed

the merits of “facial” takings challenges without applying

the traditional “as-applied” ripeness test.

The Keystone Court, quoting Hodel v. Virginia Surface

Mining and Reclamation Association, Inc., 452 U.S. 264,

294-96 (1981), emphasized the distinction between these

two types of claims:

“ ‘Because appellees’ taking claim arose in

the context of a facial challenge, it presented no

concrete controversy concerning either applica-

tion of the [Surface Mining Control and Recla-

mation] Act to particular surface mining

operations or its effect on specific parcels of

land. Thus, the only issue properly before . . . this

Court, is whether the “mere enactment” of the Sur-

face Mining Act constitutes a taking. [Quoting

Agins v. Tiburon, 447 U.S. 255, 260 (1980)]. The

13

test to be applied in considering this facial chal-

lenge is fairly straightforward. A statute regulat-

ing the uses that can be made of property effects

a taking if it “denies an owner economically

viable use of his land....”’” 480 U.S. at 495

(emphasis added).

As in Keystone, petitioners are not challenging the

application of specific provisions of the TRPA Regional

Plan. Rather, they are claiming that the mere enactment of

the Regional Plan constitutes a taking because it forbids

all economically viable use of land by its very terms. This

is precisely the type of claim which the Keystone Court

addressed, on its merits, without reference to the tradi-

tional “ripeness” analysis.*

If the enactment of a regulation results in a taking,

that regulation “necessarily implicates the ‘constitutional

obligation to pay just compensation.’ ” First English Evan-

gelical Lutheran Church of Glendale v. County of Los Angeles,

482 U.S. 304, 315 (1987) (citation omitted). The govern-

mental agency, if it chooses, can then amend or repeal the

4 Even if petitioners were pursuing an “as-applied” challenge

to the Regional Plan, the Ninth Circuit’s opinion would conflict

with Williamson County, 473 U.S. at 172. In that case, this Court

heid that an “as applied” takings claim is not ripe “until the

government entity charged with implementing the regulations

has reached a final decision regarding the application of the

regulations to the property at issue.” Id. at 186 (emphasis

added).

There is a substantial difference between requesting relief

from the application of a regulatica, usually by means of a

variance, and requesting an amendment to the regulation itself.

The former is a request for administrative relief, as required by

Williamson County, while the latter is a request for legislative

relief.

14

intrusive regulation. Id. at 321. This converts the taking to

a temporary or lesser one. Id. at 317-18. Nevertheless a

taking necessarily results and no case suggests that a

property owner, to obtain compensation, must first for-

mally ask the governmental agency to amend or repeal

the regulation. As First Church recognized, the Fifth

Amendment “is designed not to limit the governmental

interference with property rights per se, but rather to

secure compensation in the event of otherwise proper

interference amounting to a taking.” Id. at 315 (emphasis

in original). The rationale underlying the Ninth Circuit's

per curiam opinion—a rationale which requires affected

property owners to beseech the governmental agency to

amend or repeal its intrusive regulation as a condition to

compensation—totally fails to mesh with the concepts so

clearly articulated by this Court in First Church.

The opinion below also conflicts with the holdings of

a number of Circuit Courts, including the Ninth Circuit.

These decisions are all discussed in detail in the Petition

for Writ of Certiorari. What is especially significant about

these decisions is the fact that they uniformly recognize

the inapplicability of the traditional ripeness analysis to

“facial” takings claims.

hi.

_—

CONCLUSION

The “ripeness” doctrine should not be fashioned into

an instrument for the dilatory aims of governmental enti-

ties. Nor should private property owners be subjected to

a Kafkaesque maze of technical, expensive, and ulti-

mately futile procedures in order to secure judicial review

15

of overburdensome governmental regulations. Contrary

to the opinion of the court below, “a fundamental interde-

pendence exists between the personal right to liberty and

the personal right in property. Neither could have mean-

ing without the other.” Lynch v. Household Finance Corpo-

ration, 405 U.S. 538, 552 (1972).

In the interest of uniformity of law and the preserva-

tion of basic property rights, it is respectfully submitted

that the petition for writ of certiorari be granted.

DATED: February, 1991.

Respectfully submitted,

RONALD A ZUMBRUN

*EDWARD J. CONNOR, JR.

-Timotuy V. KaAssounl

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation