Petition for Writ of Certiorari — Tocco v. New Jersey Council on Affordable Housing

——

Supreme Court, U.&

FILED

JAN 15 199)

90-1219

CASE NO. oun

UNITED STATES SUPREME COU

(1990 TERM)

FRED J. TOCCO

Petitioner

Vv.

NEW JERSEY COUNCIL ON AFFORDABLE

HOUSING, a

Respondent

and

TOWNSHIP OF CHERRY HILL,

Respondent.

PETITION FOR CERTIORARI

FROM A FINAL DECISION OF THE NEW JERSEY

SUPREME COURT (1990 TERM)

BRANDT, HAUGHEY, PENBERTHY,

LEWIS & HYLAND, P.A.

240 West Route 38

Moorestown, NJ 08057

On the Petition:

S. David Brandt, Esq.

Patrick F. McAndrew, Esq.

a 1S. dG

a

QUESTION PRESENTED FOR REVIEW

Whether a temporary taking has occurred

under the Fifth Amendment of the United

States Constitution, so as to require the

payment of just compensation, under the

following circumstances:

The use of Petitioner Fred J.

Tocco’s undeveloped land was com-

pietely frozen for eighteen months

by order of a state administrative

agency;

The administratively-imposed freeze

was implemented through no fault of

Tocco, but to help a municipality

meet the municipality’s obligation

under New Jersey law to provide

affordable housing as cheaply and.

economically as possible for the

municipality;

The freeze had no environmental

basis. To the contrary,the freeze

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was imposed because Tocco’s land was

free of environmental limits and

prime for development;

The freeze not only precluded any

beneficial use of Tocco’s land for

eighteen months but also prevented

Tocco from even obtaining municipal

land use approvals — in direct vio-

lation of New Jersey statutes gov-

erning land use applications to mu-

nicipal boards;

The administratively-imposed freeze

violated New Jersey statutes prohib-

iting land development moratoriums

and was contrary to New Jersey Su-

preme Court precedent prohibiting

temporary takings without compensa-

tion;

The freeze was implemented without

as much as one penny of compensation

to Tocco.

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TABLE OF CONTENTS!

QUESTION PRESENTED FOR REVIEW. . . i

TABLE OF AUTHORITIES ...... . Vv

OPINION BELOW ...... + «© «© « « vi

GROUNDS FOR JURISDICTION... vi

CONSTITUTIONAL PROVISIONS

INVOLVED .... +. +6 «© « « « viii

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

ARGUMENT .... + © © © © © © «© «¢ 14

CONCLUSION . . +s 2e© © © © © © @ 24

1 The names of all parties appear in

the caption so they are not listed sepa-

rately. See S. Ct. R. 14.1(b).

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TAB A TI

Cases Cited

Agins v. Tiburon,

447 U.S. 255 (1980)

First j va a urch

Vv. les ,

482 U.S. 304 i987}

red J. Tocco v. N.J. uncil

on e) ousi 9

N.J. (1990)

olmd >.

To h (e) et al,

N.J (1990)

Lomarch v. Englew Py

51 N.J. 108 (1968).

Nollan v. California Coastal

Com’n., 483 U.S. 825 (1987)

rlean ilders ev A

Vv. , 186 N.J. Super.

432, 446, 453 A.2d 200

(App. Div.) cert. denied

91 N.J. 528

n

(1982)

le it

of San Diego, 450 U. S. 621

(1981)

14

14

= |

22,

Schiavone Const. Co. v. Hackensack,

486 A.2d 339

98 N.J. 258,

(1985)

iv

23

21

23

10

14

10

Uy iam ch

i,

Township, 67 N.J. 151,

336 A.2d 713, cert. denied

423 U.S. 808, 46 L.Ed.2d 28

(207es « wee ; oe ee,

ou t

N.A.A.C.P. v. Mount Laurel

ip, 92 N.J. 158,

456 A.2d 390

(19G3) .« « 2 0 0 to Bo GS LL, 18, 23

Tocco v. Council on Affordable _

ing, 242 N.J. Super. 218,

576 A.2d 327

ere, SOOO « st + ss te Wh

Williamson Planning Comm‘n. v.

Hamilton Bank, 473 U.S. 172

(Remeh « 3 8 Sie ae

Constitutional Provisions

United States Constitution,

V Amendment .... ++ + « « « Wi

Statutes

ee @.8.6. $4237 «© «© s « se oe te te ee OE

M.S.B.A. BB03-35 2. 1 ew ts ct wt tt tM

N.J.S.A. 40:55D-1 et seq. ...... 6

N.J.S.A. 40:55D-48(c) . .....2.-ee 8

N.J.S.A. 40:55D-49(a) ... 1... es 8

N.J.S.A. 52827D-302 . . . © «© «© «© « «© 4

Court Rules

S. Ct. R. 14.300) «. «© = w= w © oo et 6

vi

OPINION BELOW

Fred J. Tocco v. N.J. Council on Afford-

able Housing, N.J. _—s- (1990) (Pal),

denying certification in Tocco v. Council

on Affordable Housing, 242 N.J. Super.

218, 576 A.2d 327 (App. Div. 1990) (Pa3).

R FOR RISDICTION

i. Judgment to be Reviewed — Decision

of the New Jersey Supreme Court,

filed October 22, 1990, (Pal) deny-

ing certification to lower State

Court decisions.

ii. The case involves a “taking claim’

arising under the United States Con-

stitution, V Amendment. This provi-

sion is applicable to the states

under the XIV Amendment.

iii. This Court has jurisdiction under 28

U.S.C. §1257:

“Final judgments or decrees rendered

by the highest court of a state in

which a decision could be had, may

vii

be reviewed by the Supreme Court by

writ of certiorari...where any ti-

tle, right, privilege or immunity is

specially set up or claimed under

the Constitution....”

viii

NSTITUTION PROVISIONS INVOLVED

The Fifth Amendment, which provides in

relevant part:

"...-{NJor shall private property be

taken for public use, without just

compensation.”

\

STATEMENT OF THE CASE

The facts in this case are undisput-

ed. The New Jersey Courts acted on

Crossmotions for Summary Judgment; the

critical facts were specifically stipu-

lated.

This litigation has its roots in

matters which have absolutely nothing to

do with Petitioner Fred J. Tocco

(“Tocco”) — the New Jersey judiciary’s

quest for affordable housing in New Jer-

sey.

The quest began with the historic

decisions of the New Jersey Supreme Court

which held that the State Constitution

Mandated that each municipality in New

Jersey, provide, through its local zoning

code, a realistic opportunity for the

construction of low and moderate income

affordable housing. See Southern

Burlington County N.A.A.C.P. v. Mount

Dn,

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Laure ship, 67 N.J. 151, 336 A.2d

713, cert. denied 423 U.S. 808, 46

L.Ed.2d 28 (1975) and Southern Burlington

ounty N.A.A.C.P. v. Moun T =

ship, 92 N.J. 158, 456 A.2d 390 (1983)

(collectively, sometimes referred to as

the Mt. Laurel decisions).

Following the Mt. Laurel decisions,

an exclusionary zoning law suit was filed

against Cherry Hill Township ("Cherry

Hill”), a New Jersey Municipality and the

Third Party Defendant herein, by Fair

Share Housing Center, a non-profit orga-

nization, and by other interested par-

ties. The goal of that suit was to reme-

dy Cherry Hill’s historical failure to

provide affordable housing by ending

Cherry Hill’s exclusionary zoning prac-

tices and formulating a “compliance,

plan.”

Also following the Mt. Laurel deci-

sions, the New Jersey Legislature adopted

the New Jersey Fair Housing Act, N.J.S.A.

52:27D-301, in 1985. In adopting the

Act, the New Jersey Legislature specifi-

cally stated it was reacting to the man-

date of the Mt. Laurel decisions. See

N.J.S.A. 52:27D-302. A State agency, the

Council on Affordable Housing (“COAH” )

(the Defendant herein), was created in

order to form compliance plans. COAH’s

mission was, acting with municipalities

throughout the State, to insure that

local zoning codes would provide a real-

istic opportunity for affordable housing

and to address the historical failures of

municipalities to provide this opportuni-

ty. Upon the adoption of the Fair Hous-

ing Act and the creation of COAH, the

exclusionary law suit brought by Fair

Share Housing Center against Cherry Hill

4

was transferred from the Superior Court

of New Jersey to COAH.

While that law suit inched forward

in COAH’s administrative setting and

while the parties (which did not include

Tocco) attempted to resolve Cherry Hill’s

fair share housing obligations and how

those obligations would be fulfilled, an

Administrative Order (Pa54 et seq.) was

entered by COAH on April 24, 1987. This

Administrative Order prohibited Cherry

Hill from granting any development ap-

provals for vacant land in excess of two

acres. It is this Administrative Order

which effected the taking of Tocco’s

property. The Order issued by Defendant

COAH, an executive administrative agency,

says in part:

"ORDERED that the Township of Cherry

Hill, the Township of Cherry Hill

Planning Board, Board of Adjustment

and Zoning Board and any other per-

son, agent or employee who has the

5

authority to grant any type of de-

velopment approvals are hereby re-

strained from granting any type of

development approval for the devel-

opment of any parcel of land of two

acres or more in size....

Although not a party to the ongoing

litigation, Tocco was immediately affect-

ed by the Administrative Order. Tocco is

a New Jersey citizen who owns a 140 acre

tract of property in Cherry Hill Town-

ship, New Jersey, commonly called “Short

Hills Farm.” Tocco’s intentions for the

property were simple — to develop it in

accordance with the Cherry Hill Township

zoning -and subdivision codes and New

Jersey’s Municipal Land Use Law, N.J.S.A.

40:55D-1 et seg. (“MLUL”).

The effect of COAH’s Administrative

Order on Tocco was devastating. While

COAH, the Township, and the other liti-

gants in the exclusionary zoning case

were attempting to devise a compliance

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a i pote

plan and bring the suit to a resolution,’

Tocco was moving forward and preparing

applications for the development of Short

Hills Farm in accordance with the local

land use codes and the MLUL. Almost si-

multaneously with the issuance of the

COAH Administrative Order, Tocco was sub-

mitting hig application for development

on April 21, 1987 to the Cherry Hill

Township Planning Board (“Board”) for

preliminary subdivision approval.

A public hearing was held by the

Board on June 15, 1987. But, because of

the Administrative Order issued by COAH,

no action was taken by the _ Board.

Tocco’s development application was

shelved. The Administrative Order issued

2 For the record, the parties to

that litigation are still attempting to

find a resolution. A compliance plan has

yet to be worked out by COAH, Cherry Hill

Township and the other litigants.

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by COAH therefore prevented Tocco from

obtaining preliminary subdivision approv-

al for his development within the 95-day

time frame mandated by the New Jersey

Legislature in the MLUL; it also prevent-

ed Tocco from obtaining the vested rights

which a developer automatically receives

upon the granting of preliminary subdivi-

sion approval.’ The Administrative Order

kept Tocco’s land in its vacant, undevel-

oped state, while Cherry Hill Township,

COAH and the other litigants wrestled

with the fate of Cherry Hill’s compliance

plans for affordable housing.

3 The MLUL requires that a municipal

agency act upon an application for pre-

liminary sukdivision within 95 days.

N.J.S.A. 40:55D-48(c). COAH’s adminis-

trative order violated this legislative

mandate and prevented Tocco from obtain-

ing three year’s of protection for the

terms of approval. N.J.S.A. 40:55D-

49(a). The MLUL also prohibits land

development moratoriums, subject to lim-

ited health and safety exceptions not

applicable here. N.J.S.A. 40:55D-90.

8

At the outset, the COAH Order was of

unlimited duration. It was designed to

preserve vacant land within Cherry Hill

Township, deemed to be a “scarce

resource” by COAH, so that Cherry Hill

could satisfy its State constitutional

affordable housing obligation as cheaply

as possible. Faced with this open-ended

restraint, Tocco submitted a Motion to

COAH on January 29, 1988 to exempt Short

Hills Farm from the Administrative Order.

That request was denied on May 2, 1988

and the Order therefore continued in full

force and effect, unlimited in duration.

Tocco did not file a direct appeal

of the COAH denial since that appeal

would have focused on whether the COAH

Order was arbitrary or capricious, and

not on the constitutional taking issues.

The COAH Order is probably not arbitrary

and capricious since it seems rather

calculated and indeed effective in

achieving its purposes of preserving

vacant land for Cherry Hill’s benefit.

Tocco was concerned solely with the

effect of the Order, so the remedy he

pursued was the within claim against COAH

for inverse condemnation, which can be

filed under New Jersey law only in the

Superior Court of New Jersey, Law Divi-

sion. See Schiavone Const. Co. v.

Hackensack, 98 N.J. 258, 486 A.2d 330

(1985); Orleans Builders and Developers

v. Byrne, 186 N.J. Super. 432, 446, 453

A.2d 200 (App. Div.) cert. denied 91 N.J.

528 (1982); N.J.S.A. 20:3-5. Defendant

COAH, who imposed the freeze for Cherry

Hill’s benefit, joined Cherry Hill as a

Third Party Defendant in this case, re-

questing indemnification.

10

of

The COAH Administrative Order was

eventually modified’ by the trial Court

in this matter, per the Honorable lL.

Anthony Gibson, J.S.C.°, after the admin-

istrative freeze had been in effect for

one and one-half years. Thus, what

Started out as an open-ended freeze,

turned out to be a one and one-half year

freeze as a practical matter.

During that time, the Township nego-

tiated, mediated, contemplated and liti-

gated with COAH and the other partici-

pants in the affordable housing exclu-

sionary zoning case over how the Township

would meet its fair share obligation.

4 Even as modified, the restraints

were continued and portions of Short

Hills Farm remain subject to restraints

as of this writing.

. Judge Gibson is one of three trial

judges specially designated by the New

Jersey Supreme Court to hear all cases in

the State arising wnder the Mt. Laurel

doctrines.

ll

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While chis occurred, Tocco could not use

his property or obtain any development

approvals. All Tocco could do was spend

significant sums of money to carry his

property and wait to see the outcome of

COAH and Cherry Hill’s protracted dis-

pute.

Tocco’s inverse condemnation Com-

plaint was eventually dismissed by Judge

Gibson on July 7, 1989, acting on Cross-

motions for Summary Judgment on stipulat-

ed facts (Pal8 et seg.). The Appellate

Division of the New Jersey Superior Court

sttisies te a written decision (Pa3 et

seq.). In an Order (Pal) filed October

22, 1990, the New Jersey Supreme Court

declined to grant certification of the

Appellate decision and let the lower

Court rulings stand.

Tocco’s Fifth Amendment taking claim

is the principal claim in this litiga-

12

tion. It was raised on the face of his

State Court Complaint (see Verified Com-

plaint, 916 (Pa48)) and briefed throughout

the proceedings below.

13

ARGUMEN

Special and important reasons exist

for granting this Writ of Certiorari.

First, the taking issue is a signif-

icant constitutional taking issue which

has long bedeviled citizens and the

courts. Because of concerns about ripe-

ness and other procedural issues, defin-

ing when regulation crosses the line and

becomes a taking, permanent or otherwise,

has proven elusive. See e.g., Agins v.

Tiburon, 447 U.S. 255 (1980); San Diego

Gas_ & Elec. v. City of San Diego, 450

U.S. 621 (1981); and Williamson Planning

Comm’n. v. Hamilton Bank, 473 U.S. 172

(1984). Even in the case of First Eng-

lish Evan. Luth. Church v. Los Angeles

Cty., 482 U.S. 304 (1987), where this

Court decided only that compensation is

available for a temporary taking, a deci-

sion was not made on when a temporary

14

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taking occurs and the matter was remanded

to the State Court for further consider-

ation.

Tocco’s plight offers this Court a

great opportunity for delineating when a

temporary taking occurs under Federal

law. The case is simple, the facts are

undisputed since they were stipulated

below,. and the lower Court decisions are

final. State remedies were pursued to

exhaustion — both literally and figura-

tively. Moreover, this case is not

Clouded by grave environmental concerns —

Tocco’s use of his land and his ability

to seek development approvals was frozen,

not because his land was environmentally

limited or sensitive, but because Short

Hills Farm was ideal for development. If

this Court truly wishes to draw a line to

illustrate where takings occur, a cleaner

15

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canvas than this case could not be imag-

ined.

Second, granting the Writ is also

necessary in the interest of fundamental

fairness and to grant Tocco meaningful

judicial review. The New Jersey Courts

did not fulfill the judiciary’s tradi-

tional role of protecting individual

rights from legislative or executive

over-reaching.

In many instances, qovexrenaet offi-

cials such as local mayors must provide

necessary municipal services and improve-

ments within limited budgets. It is very

tempting to make developers pay for those

improvements and services even though the

proposed development has no connection tc

the service or improvement. It is thus

not at all unusual for a state or federal

court to review the following situation:

a local mayor, desiring a new traffic

16

light and acting with the very best of

intentions, “requests” that a developer

put in that new light. Even if the traf-

fic light has been needed by the munici-

pality for many years, the temptation is

often very great for the mayor to ask the

developer to pay the full bill. It isa

temptation born of convenience, good in-

tentions and sometimes local necessity.

The developer in these situations often

gives in simply because the developer

needs its approvals and needs to move on

with its financing and development; liti-

gation is not a realistic, economic op-

tion. In cases where litigation is pur-

sued, however, the developer looks to the

court system for fundamental fairness and

meaningful review.

In this particular case, the New

Jersey court system in a sense became the

mayor and was asked to do the impossible

17

i)

-

— to police itself. The "war" for af-

fordable housing in New Jersey has been

started and waged in large part by the

State judiciary. Had there been no Mt.

Laurel decisions, there would be no COAH

and none of the litigation which forms

the subject matter of this case, either

directly or indirectly, would have ever

taken place.

Having defined the ends, i.e., af-

fordable housing, it is difficult for New

Jersey Courts to objectively and fairly

assess the means to accomplish those

ends. It is akin to asking the mayor of

a small town whether it is fair to ex-

tract a long-needed traffic light from a

large developer. We do not quarrel with

the worthiness of the end — affordable

housing is a legitimate public goal and

it is a worthy objective. The issue here

is whether the means of freezing the use

18

and development of Tocco’s property for

the benefit of Cherry Hill Township is a

fair burden to place solely on the shoul-

ders of Tocco.

New Jersey Courts are peculiarly un-

suited to address this issue since, hav-

ing set the agenda and goals, they have a

real stake and interest in seeing that

the goals are accomplished. These in-

herent limitations are reflected in the

decisions below and in related cases.

The paradox of New Jersey Courts

reviewing the means used to achieve af-

fordable housing was reflected in Judge

Gibson’s trial decision herein. The

restraint imposed by COAH had been re-

newed by the trial Court, albeit in modi-

fied form, in its own injunction. Thus,

if Judge Gibson found COAH’s Order ef-

fected a taking, the same might be true

of the trial Court’s own subsequent in-

19

junction — a fact alluded to by the trial

Court. See Trial Court Transcript,

(Pa28-Pa29).

The intermediate New Jersey Appel-

late Court upheld the trial Court’s rul-

ing and illogically condoned the one and

one-half year deprivation of use and de-

velopment inflicted on Tocco because

Tocco did not stand alone. Several other

developers were similarly situated and

affected. The Appellate Division of the

Superior Court of New Jersey ruled, in

effect, that a taking might have occurred

had Tocco been singled out. But since

several people may have had their consti-

tutional rights curtailed, a taking did

not result. The apparent lesson to be

learned is that constitutional misery

likes company and if government is to

engage in constitutional violations it

should do it on a whole-scale basis.

20

+e]

In addition to the Appellate Divi-

sion’s bizarre ruling, the New Jersey

Supreme Court declined Tocco’s petition

for certification even though the eigh-

teen month deprivation of use was square-

ly prohibited by a decision of the New

Jersey Supreme Court issued in 1968,

entitled Lomarch v. Englewood, 51 N.J.

108 (1968). In Lomarch, the New Jersey

Supreme Court held that a municipality

could not freeze the use of a developer’s

land for even one year in order to deter-

mine if it would be utilized for a street

or other public purposes, unless compen-

sation was paid. In declining to review

the Appellate Division’s decision in this

case, the New Jersey Supreme Court elect-

ed to ignore its own precedent in Lomarch

and elected to ignore the doctrine of

stare decisis.

21

Just how far New Jersey Courts will

go in their efforts to achieve the judi-

cially imposed goal of affordable housing

was recently revealed in Holmdel Builders

Association v. Township of Holmdel, et

al, _=N~.J. ___—s«- (1990). That case was

concerned with impact fees which were

being imposed by municipalities across

New Jersey in an effort to collect money

from developers so that the municipali-

ties could build affordable housing and

cure the municipality’s historical fair

share housing deficiencies. Since devel-

opers were being singled out to pay for

public programs in the form of affordable

housing, which were no different in theo-

ry than the public’s need for new schools

or new roads, it was believed that the

impact fees would be subject to a tradi-

tional rational nexus requirement between

the proposed development and the exac-

22

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tion. This Court, of course, most re-

cently reviewed and applied the tradi-

tional rational nexus requirement between

development and exactions in Nollan v.

California Coastal Com’n., 483 U.S. 825

(1987).

In the Holmdel Builde Associ

case, however, the New Jersey Supreme

Court specifically held “that the ratio-

nal-nexus test is not apposite in deter-

mining the validity of inclusionary zon-

ing devices generally or of affordable

housing development fees in particular.”

N.J. at —. (Slip Opinion, p.27).

Rather than ask whether the exaction of

an impact fee was fair, the Court asked

whether it was efficient. See id. By

refusing to apply the traditional ratio-

nal nexus test in Mt. Laurel litigation,

the New Jersey Supreme Court is essen-

tially saying it is all right to single

23

out certain people to pay for affordable

housing, in one form or another, so long

as the goal for affordable housing is

achieved. Any meaningful inquiry into

fairness was avoided. The ends will,

according to the New Jersey judiciary,

justify the means.

CONCLUSION

In sum, granting the Writ of Cer-

tiorari in this case is appropriate be-

cause the Court is presented with a

unique chance. It is a chance to delin-

eate when temporary takings occur and to

provide guidance to courts, regulators

and citizens on these significant public

issues. It is important that public

goals be achieved; it is just as impor-

tant that they be fairly achieved.

The New Jersey Courts are unusually

ill-equipped in this particular instance

to assess fairness of the means. Usual-

24

ly, the Legislature or the Executive

Branch selects the goals and the judicia-

ry reviews the means for fairness and

appropriateness. In this instance, the

New Jersey Courts, much like the mayor in

a small town seeking to obtain public

services and improvements within a limit-

ed budget, is blinded by its own agenda

and by goals fashioned by its own hand.

It is certainly important that the

goal of affordable housing ke achieved.

But why Fred Tocco should be forced to

bear a unique exaction — the dedication

of his land as essentially open space for

a year and a half and a prohibition on

him even obtaining any loca] development

or approvals for a year and a half -

remains a mystery.

We therefore respectfully request

that this Court grant the within Peti-

tion, reverse the State Courts below, and

25

afford Tocco just compensation for the

temporary taking which clearly took place

in this case.

BRANDT, HAUGHEY, PENBERTHY,

LEWIS & HYLAND, P.A.

ey dL bundl Bult

S. DAVID BRANDT

Dated: Hoot

On the Petition:

Patrick F. McAndrew, Esq.

wp4327a.pfm/0191-3

26