Opposition Brief — Tocco v. New Jersey Council on Affordable Housing

Court, U.S.

= ) FILED

4

No. 90-1219 FEB 2 8 1991

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1990

FRED J. TOCCO,

Petitioner,

V.

NEW JERSEY COUNCIL ON AFFORDABLE HOUSING

and TOWNSHIP OF CHERRY HILL,

Respondents.

y

_

Petition For Writ Of Certiorari To The

Supreme Court Of New Jersey

La.

—

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI ON BEHALF OF RESPONDENT

COUNCIL ON AFFORDABLE HOUSING

y%

4

Rosert J. Det Turo

Attorney General of New Jersey

Attorney for Respondent,

New Jersey Council on

Affordable Housing

R.J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

(609) 984-9664

Mary C. JACOBSON

Deputy Attorney General

Counsel of Record

Topp A. WIGDER

Deptty Attorney General

On the Brief

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

OR CALL COLLECT (402) 342-2831

: ‘

enc tt)

QUESTION PRESENTED

Does the Takings Clause of the Fifth Amendment

require the State of New Jersey to pay compensation to

owners of land subject to a local development mor-

atorium, which was of limited duration, provided for

exemptions and was established for the public purpose of

preserving scarce land resources during the time that the

extent of the municipality’s obligation under the State

Constitution to provide lower income housing is subject

to administrative review?

ii

TABLE OF CONTENTS*

Page

QUESTION PRESENTED ..........--- 22sec eeeeeees i

TABLE OF AUTHORITIES............-.2+--eeeeee iii

STATEMENT OF THE CASE............-.--20-ee: 1

SUMMARY OF REASONS FOR DENYING THE

fy thst tere rrr rr tr ee 6

REASONS FOR DENYING THE PETITION......... 8

COMCLUIGEIN «won ccncncccsnneusceesennsaesesesses 17

* The list of parties is omitted because the names of all parties

appear in the caption. Sup.Ct.R. 14.1(b).

ili

TABLE OF AUTHORITIES

Page

Cases Citep

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

Andrus v. Allard, 444 U.S. 51 (1979) ...............4. 13

Armstrong v. United States, 364 U.S. 40 (1960)......... 5

Berman v. Parker, 348 U.S. 26 (1954) .............0000. 9

Danforth v. United States, 308 U.S. 271 (1939)...... 7, 10

First English Evan. Luth. Ch. v. Los Angeles Cty., 482

EE 5c eS aca ness sees he cau ekeden'e 7,

Goldblatt v. Hempstead, 369 U.S. 590 (1962)........... 12

Hills Dev. Co. v. Bernards Tp., 103 N.J. 1, 510 A.2d

ae rio Peis keke RA Dew ee ve dn Oe Se me eS

Holmdel Builders Ass'n v. Twp. of Holmdel, 121 N.].

550, 583 A.2d 277 (1990)......... | OO ANE 5, 9, 15

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ....12

Kirby Forest Industries, Inc. v. United States, 467

Se US ars Kayes cea ce 060060 ees & 7, 11, 13

Littman v. Gimello, 115 N.J. 154, 557 A.2d 314, cert.

denied ___—s- «U.S. __, 110 S.Ct. 324, 107 L.Ed.2d

ER Per rere eer ere heer rrr 8

Lomarch v. Englewood, 51 N.J. 108, 237 A.2d 881

a AS aS NRSRE VERE Ms aticnee 15, 16

Nectow v. Cambridge, 327 U.S. 183 (1928) ........... 6, 8

Nollan v. California Coastal Com'n, 483 U.S. 825

ets ch coe oi awe cb san ddeude es csaske hs 15

Penn Central Transp. Co. v. New York City, 438 U.S.

a a ekN iG vGA SOS k ys cKcussenses 72m 14.33

iv

TABLE OF AUTHORITIES - Continued

Page

So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp., 92 N.J.

TSG, G56 ADd THO CRED). nw once ccwcessncscces 2

So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J.

151, 336 A.2d 713, cert. denied 423 U.S. 808

Se rn rn rrr nee err 1, 7, 9, 15

United States v. Central Eureka Mining Co., 357 U.S.

gE errr Seer ere yr ee eT Tere e ee 12

United States v. Riverside Bayview Homes, Inc., 474

SE Pe EMEA. ov vss kc ncdcewesstcccusnesavccncn 6,9

Williamson Cty. Regional Planning v. Hamilton Bank,

GP SO WHE PSN Rb bck nc de ctcdesdeneeandness 12

ConstiTuTIONs CITED

ee, a Sr ees aes aha aise 8

ES .. Cae, Sey Ms Me EE hv we nnd en vans Cecensscsces 1

RES... Ce, Ss Ms Be I oo ein hve van cciensinenescs 8

Ot. Comet. SURGE. BU. FU, BG, Te onc ccc ices cn nevenses 1

Statutes CitTED

NISA. SEF Er ae) OF OO oa oes ccc scccccwessecesctesee 1

fi Ee | PRP PPOPCPTET TTT ETT Tee ee 1

Fee, SN 6 i 555.00 85.56 Senennen exeRaaeeues 1,2

fee me Te Teer er eee ee 2

ARS et err re errr errr re ere ?

V

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS CITED

Pgh: ME xh inks sel ekenteerieneed eee 2

FOR Penne 8i <6 Cig ehundneey ieee ee 2

Rutes Citep

ac Ml, MER TERE OT RN er eR 8

I See hoes ke eS ee eee 15

Pe TI sis eisiccteees ee ii

i in | Pe PEP INAA Cann eee th. 5

STATEMENT OF THE CASE

In two landmark decisions, the Supreme Court of

New Jersey declared that each municipality in the State

has a unique and important obligation under New Jer-

sey’s constitution to provide a realistic opportunity for its

fair share of lower income housing. N.J. Const. (1947), art.

I, 41; art. IV, § 6, 2. So. Burl. City. N.A.A.C.P. v. Tp. of Mt.

Laurel, 67 N.J. 151, 174, 336 A.2d 713, cert. denied 423 U.S.

808 (1975) (Mt. Laurel I); So. Burl. Cty. N.A.A.C.P. v. Mt.

Laurel Tp., 92 N.J. 158, 208-09, 456 A.2d 390 (1983) (Mt.

Laurel II). In response to the so-called Mt. Laurel deci-

sions, the State Legislature enacted the Fair Housing Act

(the Act), N.J.S.A. 52:27D-301 et seq., to provide a compre-

hensive mechanism to address in an orderly and mean-

ingful way the constitutional duty of all local

communities. See N.J.S.A. 52:27D-303.

Among its many regulatory features, the Act created

a State agency known as the Council on Affordable Hous-

ing (the Council) and gave it wide-ranging administrative

powers to define regional needs throughout New Jersey

for low and moderate income housing, to establish guide-

lines for municipalities to determine their fair share of the

region’s needs and to decide if proposed ordinances and

related planning steps will satisfy local needs. Hills Dev.

Co. v. Bernards Tp., 103 N.J. 1, 21-23, 510 A.2d 621, 632-33

(1986) (Hills Development). Under the Act, a municipality

is required to submit to the Council a “housing element,”

which is an analysis of the measures it plans to take to

address its ower income housing obligation, and a “fair

share plan,” the township’s proposed ordinances

designed to actually carry out its planning steps. N.J.S.A.

52:27D-309(a); N.J.A.C. 5:91-4.2. Based on these submis-

sions, a community may petition the Council for “sub-

stantive certification” which, if granted constitutes

approval of the plan to satisfy the municipality’s Mt.

Laurel obligation. N.J.S.A. 52:27D-313. In order to ensure

that a community will still be in a position to meet its fair

share obligation at the conclusion of the substantive certi-

fication process, the Council is authorized to require a

municipality to preserve its scarce resources, such as

vacant land, that may be essential to satisfy its fair share

housing obligation. Hills Development, supra, 103 N.J. at

61, 510 A.2d at 653.*

In May 1985 an exclusionary zoning lawsuit was filed

against Cherry Hill in the State’s trial court alleging that

the township had failed to provide for its fair share of

lower income housing. Fair Share Housing Center, Inc., et

al. v. Township of Cherry Hill, Docket No. L-042750-85 P.W.

(Law Division, Superior Court). Pursuant to the Act and

the Hills Development opinion, the case was transferred by

the court to the Council, and Cherry Hill eventually

applied for substantive certification in January 1987.

The Council determined in March 1987 that Cherry

Hill’s housing element and fair share plain had certain

deficiencies, and the township was given 60 days to

submit a corrected plan. The Council also determined

that land was a scarce resource in Cherry Hill and, in an

order dated April 24, 1987, the township was restrained

by the Council from granting development approval for

* The authority to preserve scarce resources was later codified

by the Council in its regulations. N.J.A.C. 5:91-11.1.

Cw

any vacant land of two or more acres until the Council

acted on Cherry Hill’s request for substantive certifica-

tion. Relief from the restraining order was available in the

form of exemptions. (Pa34-Pa37).* The purpose of the

restraint was to ensure that scarce vacant land did not

disappear while the administrative process was pending.

Fred. J. Tocco owns about 140 acres of vacant land in

Cherry Hill, New Jersey. More than nine months after the

Council’s restraints on development were ordered, Tocco

asked the Council on January 29, 1988 to grant him an

exemption from the terms of the order. The Council

denied the request because Tocco’s land was suitable for

lower income housing development and relief from the

restraints at that time would therefore be inappropriate

given the limited amount of vacant land available in

Cherry Hill. Tocco did not appeal from this denial, nor

did he later seek a more narrow or limited exemption

from the order.

Ultimately, the administrative process proved unsuc-

cessful. Although the Council conditionally granted

Cherry Hill’s petition for substantive certification in July

1988, the township failed to satisfy the conditions and the

Council was forced to deny the petition in September

1988. The question of the township’s failure to provide a

realistic opportunity for its fair share of lower income

housing was therefore remanded to the State trial court in

accordance with N.].S.A. 52:27D-314. However, the Coun-

cil’s restraints on land development were extended

* “Pa” refers to the appendix accompanying Tocco’s petition.

Cites below to “Pb” refer to the petition.

for 30 days to October 26, 1988 in order to preserve the

status quo until the trial court could consider the case.”

In the meantime, on May 24, 1988, Tocco filed a

complaint in the State’s trial court alleging that the Coun-

cil’s restraints, which had been in effect at that time for

little more than one year, constituted a temporary taking

entitling him to compensation under the New Jersey and

United States Constitutions (Pa48-Pa53). This claim was

rejected by both the trial court and the State’s Appellate

Division, the intermediate appeals court in New Jersey.

(Pal18-Pa47; Pa3-Pal17).

Holding that the Council’s restraints did not amount

to an unconstitutional taking under the State or federal

constitution, the Appellate Division noted that Tocco did

not challenge the Council’s scarce resource regulation or

the reasonableness of the moratorium or its duration. The

State court also correctly observed, while weighing the

private and public interests at stake, that Tocco was one

of many landowners whose property may have been inci-

dentally affected by the legitimate exercise of the State’s

police powers to preserve scarce resources.” (Pall;

* On remand, the trial court restrained all development of land,

including Tocco’s property, in excess of 10 acres. However,

Tocco was granted an exemption in April 1989 and was permit-

ted to proceed through the township’s preliminary and final

approval process for 48 of his 140 acres on the condition that at

least 42 lower income units were built on the site. Tocco was

also allowed to apply for preliminary major subdivision

approval on the remaining parcel. In March 1990 the trial court

released an additional 8 acres to receive final approvals.

* Although noting this observation in his discussion of the

State court’s opinion (Pb20), Tocco inexplicably asserts as fact

(Continued on following page)

Pal4-Pa15). With respect to his claim that the freeze was

nonetheless a temporary taking of his property, the court

below applied the well-settled State law principle, inter-

preted consistently with parallel federal constitutional

standards enunciated by this Court, that the imposition of

a land development moratorium of limited duration for

public interest reason does not constitute a temporary

taking of a landowner’s property (Pa15). Nor, said the

court, does a taking result from a diminution in property

values during governmental deliberations, absent

extraordinary delay (Pa15-Pa16). Hence, the Court con-

cluded that the Council’s “land development moratorium

imposed for the purpose of enabling a municipality to

(Continued from previous page)

at several places in this petition that he has been singled-out or

that he was the only landowner affected the moratorium (Pb19;

Pb23 to Pb24; Pb25). This misstatement could affect the Court's

deliberations on the petition (Sup.Ct.R. 15.1) because one of the

acknowledged purposes of the Takings Clause is “to bar Gov-

ernment from forcing some people aione to bear public bur-

dens which, in all fairness and justice, should be borne by the

public as a whole.” Armstrong v. United States, 364 U.S. 40, 49

(1960). In weighing the private and public interests at stake,

the benefits enjoyed by landowners as a result of the exercise

of the police powers must be considered along with any bur-

den occasioned by temporary fluctuations in property values.

Agins v. Tiburon, 447 U.S. 255, 260-62 (1980). Here, in the

context of land use regulation designed to promote the general

welfare, iandowners were not unfairly burdened by a tempor-

ary development moratorium since they also undoubtedly ben-

efit as members of the community as a whole by enabling their

township to attract housing for the workforce. See Holmdel

Builders Ass'n v. Twp. of Howell, 121 N.J. 550, 562-66, 583 A.2d

277, 283-85 (1990); Mt. Laurel II, supra, 92 N.J. at 209-212 and

n.5.

fulfill its [State] constitutional obligation to provide for

its fair share of low and moderate income housing is not

unconstitutional” (Pa17).

Tocco petitioned New Jersey’s highest court for dis-

cretionary review of the intermediate appellate court’s

decision. In an order dated October 16, 1990, the State’s

Supreme Court denied the application without comment

(Pal-Pa2). Tocco filed a petition for certiorari with this

Court on January 15, 1991.*

,%

.

SUMMARY OF REASONS FOR

DENYING THE PETITION

1. The petition should be denied because the State

court below merely applied the principle long-settled by

this Court that reasonable land use regulation in the

proper exercise of the police power does not constitute a

taking. Nectow v. Cambridge, 327 U.S. 183 (1928).

2. Land use regulation amounts to an impermissible

taking only in extreme circumstances, such as where it

fails to promote a legitimate State interest or destroys a

fundamental attribute of ownership. United States v. Riv-

erside Bayview Homes, Inc., 474 U.S. 121 (1985); Kirby Forest

Industries, Inc. v. United States, 467 U.S. 1 (1984). Thus,

even a substantial reduction in the value of property

during governmental decisionmaking, absent extraordin-

ary delay, is an incident of ownership and is not considered a

* The petition was returned to Tocco’s counsel by the Clerk

because of deficiencies. Corrected copies of the petition were

received by the New Jersey Attorney General’s office on Janu-

ary 30, 1991.

taking in the constitutional sense. Agins v. Tiburon, 447 ULS.

255 (1980); Danforth v. United States, 308 U.S. 271 (1939).

3. Consistent with these constitutional standards,

the opinion below correctly concluded that any inter-

ference with Tocco’s property interest caused by the 18-

month development moratorium, imposed to promote the

general welfare, was not severe enough to be considered

a taking in the Fifth Amendment sense. Under State law,

lower income housing and the opportunity to provide for

it advances the public welfare and is a valid exercise of

the State’s police powers. Hills Development, supra, 103

N.J. at 19-26, 510 A.2d at 631-34; Mt. Laurel I, supra, 67 N.J.

at 173-91, 336 A.2d at 924-34. There was no extraordinary

delay in this case occasioned by the Council’s review of

Cherry Hill’s petition for substantive certification and

any fluctuation in property value during that time was

merely an incident of ownership. In addition, Tocco pre-

sented no proof at all concerning the effect, if any, of the

moratorium on property values. Moreover, he was not

deprived of all use of his land since he did not pursue the

kind of limited exemptions from the moratorium that

were ultimately sought from and ordered by the trial

court, to permit him to use his lard in ways that would

still preserve enough vacant land for lower income hous-

ing. Penn Central Transp. Co. v. New York City, 438 U.S. 104

(1978). Likewise, the moratorium did not interfere with

his right to sell the land. Kirby Forest Indus., supra, 467

U.S. at 15.

4. It makes no difference that Tocco asserts a “tem-

porary” rather than permanent taking. A temporary tak-

ing is not different in kind from a permanent taking. First

English Evan. Luth. Ch. v. Los Angeles Cty., 482 U.S. 304

(1987) (First Lutheran Church). Therefore, the analysis

does not differ depending on the permanency of the

taking alleged. An effected landowner must still show,

which Tocco did not and could not do, that the land use

regulation at issue failed to advance legitimate State

interests or destroyed fundamental ownership rights.

REASONS FOR DENYING THE PETITION

There are no special and important reasons why the

Court should review this case. Sup.Ct.R. 10. The opinion

below merely applied the well-established principle that

reasonable land use regulation in the proper exercise of

the police power does not constitute a taking. See, e.g.,

Nectow v. Cambridge, supra, 327 U.S. at 188 (1928). Just

such a case, and nothing more, is before the Court on this

petition.

The Fifth Amendment guarantees that private prop-

erty will not “be taken for public use, without just com-

pensation.”* However, there can be no doubt that

government may implement laws or programs that

adversely affect property and other economic values.

Penn Central Transp. Co., supra, 438 U.S. at 124-25.

* Although the State court below did not expressly rely on

federal precedent in reaching its decision, the New Jersey

Supreme Court has interpreted as coextensive the protections

under both the New Jersey and United States Constitutions

afforded a landowner against taking property without just

compensation. N.J. Const. (1947), art. I, 420; U.S. Const.

amends, 5, 14; Littman v. Gimello, 115 N.J. 154, 557 A.2d 314,

317-18, cert. denied __ U.S. __, 110 S.Ct. 324, 107 L.Ed.2d 314

(1989).

Government regulations affecting property values work a

taking only if their application does not promote legiti-

mate state interests or denies an owner economically

viable use of his lands. Agins, supra, 447 U.S. at 260. Only

in “extreme circumstances” will land use regulation

amount to an impermissible taking of affected property.

United States v. Riverside Bayview Homes, Inc., supra, 474

U.S. at 126. All the State court did was apply these settled

standards of constitutional analysis to the particular cir-

cumstances of the taking claim before it.

The State court opinion at issue recognized that the

land development freeze imposed by the Council

advanced legitimate State interests. Under New Jersey

law, providing lower income housing is a governmental

end. Holmdel Builders Ass'n, supra, 121 N.J. at 567, 583

A.2d at 285. So too, government regulation designed to

provide a realistic opportunity for lower income housing

throughout the State promotes the general welfare and is

a valid exercise of the State’s police powers.* Mt. Laurel I,

supra, 67 N.J. at 174-80, 336 A.2d at 713-17. The public

welfare is similarly served when the Council exercises its

regulatory power during the Mt. Laurel process to pre-

serve scarce resources, such as vacant land, until it is

determined if those resources will be needed to satisfy a

municipality’s fair share obligation. Hills Development,

supra, 103 N.J. at 61-62, 510 A.2d at 653.

* Housing needs have been recognized by this Court as clearly

related to the general welfare. Berman v. Parker, 348 U.S. 26, 33

(1954).

10

Indeed, Tocco does not question the Council’s

authority to preserve scarce resources or the reasonable-

ness of the restraints on land development imposed in

this case against Cherry Hill in the proper exercise of the

State’s police power. (Pall; Pb9 to Pb10). Hence, it was not

surprising, and no new constitutional ground was bro-

ken, when the opinion below concluded that a develop-

ment moratorium of limited duration imposed for public

interest reasons, during governmental deliberations and

to enable compliance with a State constitutional mandate

did not result in the temporary taking of an affected

landowner’s property. Certainly, this mundane applica-

tion of clearly established takings law does not merit

review by this Court.

Likewise, there was nothing remarkable about the

State court’s recognition that there were no extreme cir-

cumstances in this case giving rise to a regulatory taking.

Apart from the fact that the land use regulation at issue

advanced legitimate State interests during governmental

deliberations, there can be no taking unless an owner is

deprived of economically viable use of his land. Agins,

supra, 447 U.S. at 260. No such showing was made in this

case. Moreover, it is an incontrovertible axiom of takings

law that changes in value, even had they been demon-

strated here, are incidents of ownership and “cannot be

considered as a taking in the constitutional sense.” Dan-

forth v. United States, supra, 308 U.S. at 285.

Along similar lines, fluctuations in the value of prop-

erty during the process of governmental decisionmaking,

in the absence of extraordinary delay, are incidents of

ownership and do not work a taking. Agins, supra, 447

U.S. at 263. Even a substantial reduction in property

11

value does not result in a taking, absent an interference

with the owner’s legal right to sell his land. Kirby Forest

Indus., supra, 467 U.S. at 15. Thus, only land use regula-

tions that extinguish a “fundamental attribute of owner-

ship” amount to a taking and entitle a landowner to

compensation. Id. at 262. In holding that no unconstitu-

tional taking occurred in this case, the court below merely

concluded, consistent with these standards, that any

interference with Tocco’s property interests caused by the

18-month development freeze was not severe enough to

be considered a taking in the constitutional sense.

Here, the State court assumed for purposes of its

analysis that there may have been some diminution in the

value of Tocco’s property, but concluded nevertheless

that the 18-month moratorium was reasonable given the

cumbersome nature of the Council’s administrative pro-

cess. As the trial court had also observed (Pa39 to Pa40),

it was not surprising that the moratorium was in effect

for 18 months, the corresponding period of time between

the dates of Cherry Hill’s application for and the denial

of substantive certification. In that regard, even Tocco

conceded the reasonableness of the moratorium. More-

over, the length of time involved here was well within

acknowledged expectations of how long the decisionmak-

ing process may last. See Hills Development, supra, 103 N.].

at 39, 510 A.2d at 641-42. Consequently, there was no

extraordinary delay in the constitutional sense occa-

sioned by the Council’s deliberations and, as the State

court correctly noted, any fluctuation in property value

during that time was an incident of ownership for which

12

no compensation was required.* (Pa15 to Pal7). This

unremarkable and appropriate application of constitu-

tional takings law to the circumstances of this case clearly

does not require further review by this Court.

Nevertheless, Tocco claims in his petition that the

development moratorium in fact denied him all use of his

property. Each case must be examined on its particular

facts to determine if government action has worked a

taking. See e.g., Kaiser Aetna v. United States, 444 U.S. 164,

175 (1979); Penn Central Transp. Co., supra, 438 U.S. at 124

(ad hoc, factual inquiries); United States v. Central Eureka

Mining Co., 357 U.S. 155, 168 (1958) (question turns upon

the particular circumstances of each case). A taking claim

is premature, however, until use of an owner’s land is

actually forbidden. See, e.g., Williamson Cty. Regional Plan-

ning v. Hamilton Bank, 473 U.S. 172, 186-88 (1985). For

example, in Penn Central, the Court held that a challenge

to the application of New York City’s Landmarks Preser-

vation Law was not ripe because, although the respons-

ible administrative body had denied a plan for a 50-story

office building, the property owners had “not sought

approval for a smaller structure.” Penn Central Transp. Co.,

438 U.S. at 137. As a result, the Court was uncertain whether

the administrative body would deny all economically

* Significantly, there was no evidence whatsoever in the record

below concerning the effect, if any, that the 18-month mor-

atorium had on the value of Tocco’s land. For this reason, there

is no way to evaluate the economic impact caused by the

moratorium. Penn Central Transp. Co., supra, 438 U.S. at 124.

Therefore, the Court should assume Tocco’s land could be put

to reasonable use. See Goldblatt v. Hempstead, 369 U.S. 590,

594-96 (1962).

13

viable uses of the property and, consequently, if the prop-

erty had in fact been taken in the constitutional sense. 438

U.S. at 136-37.

Likewise, in the present case, although he applied for

and was denied an exemption from the moratorium,

Tocco never asked the Council if it would allow him to

build lower income housing.* Nor did he pursue limited

exemptions to permit him to develop small portions of

his land, relief the trial court here eventually allowed on

remand from the Council. See, e.g., Andrus v. Allard, 444

U.S. 51, 65-66 (1979). Moreover, there is no evidence in

this case that the moratorium interfered with Tocco’s

right to sell or otherwise dispose of his land. Kirby Forest

Indus., supra, 467 U.S. at 15; Agins, supra, 447 U.S. at 262.

In these circumstances, a development moratorium

imposed to promote legitimate State interests that does

not deprive a landowner of a fundamental attribute of

ownership or economically viable use of his property

cannot be considered a taking entitling him to compensa-

tion. Therefore, the opinion below is correct and presents

no special and important reasons supporting further con-

sideration by this Court.

This conclusion is not altered because Tocco asserts a

“temporary” rather than a permanent taking. A tempor-

ary taking, which denies a landowner all use of his prop-

erty, is not different in kind from a permanent taking.

First Lutheran Church, supra, 482 U.S. at 318. Thus, the

analysis used to determine if a taking — temporary or

* It is inconceivable that the Council would interpret the

restraints it imposed on the township to precluae the very use

they were designed to preserve.

14

permanent — has occurred in the first instance does not

differ depending on the permanency of taking alleged.

The threshold question in both situations is whether the

governmental regulation advances a legitimate State

interest or deprives an owner of economically viable use

of his land. Agins, supra, 447 U.S. at 260. Here, applying

these established rules of constitutional analysis, the State

court below concluded that the moratorium had not

worked a taking, temporary or otherwise.

For like reasons, this case does not present the Court

with “a great opportunity” (Pb15) to declare for the first

time when a temporary taking occurs under federal law.

Contrary to Tocco’s assertion, there is nothing in First

Lutheran Church to suggest that the Court was anxious to,

but could not or chose on the record before it not to,

devise a temporary taking test that departed from the

settled criteria applicable to a permanent taking. See e.g.,

Agins, supra, 447 U.S. at 260. Rather, having assumed

there was a taking, First Lutheran Church was limited to

resolving what remedies were available to a landowner

when government action had already resulted in a tempo-

rary taking. Id., 482 U.S. at 322. Since no pertinent ques-

tion was left open, there is no reason to revisit First

Lutheran Church in this context.

Tocco’s remaining argument is so absurd that it

deserves only a brief response. He urges the Court to

grant his petition on the ground that the New Jersey

courts were “unsuited” to hear this case (Pb19; Pb16 to

Pb24). Having declared in the first instance the constitu-

tional obligation of communities to provide their fair

share of lower income housing, the argument goes, the

State courts cannot fairly decide a challenge to regulatory

15

actions designed to further the goals established in the

Mt. Laurel cases. This argument must be rejected as just a

desperate attempt by this unhappy litigant to divert the

Court’s attention from his insubstantial takings claim.

First, the trial court’s decision on remand from the

Council to continue the development freeze, contrary to

Tocco’s claim at pages 19 and 20 of his petition, serves to

underscore rather than undercut the propriety and rea-

sonableness of the Council’s original development

restraints. Second, there is no “conflict” (Pb22 to Pb24)

between this Court’s decision in Nollan v. California

Coastal Com’n, 483 U.S. 825 (1987), and the New Jersey

Supreme Court’s decision in Holmdel Builders Ass‘n

because no takings claim was decided in that State court

opinion. Moreover, even if a conflict existed between the

two cited opinions, there is no conflict between Nollan

and the Appellate Division decision below. Thus, the

asserted conflict has nothing to do with this case and

does not support this Court’s exercise of discretionary

review over the Tocco matter. See Sup.Ct.R. 10.1(c).

Finally, Tocco argues (Pb21) that the State’s highest

court, in declining to review this case, ignored allegedly

controlling precedent in Lomarch v. Englewood, 51 N.J. 108,

237 A.2d 881 (1968). This argument is utterly meritless

because Lomarch has no application to the present case.

The one-year land development freeze invalidated in

Lomarch affected only one landowner and it was not

imposed to advance governmental interests in the exer-

cise of the police powers. Instead, the freeze was

designed solely to give the city more time to decide if it

16

wanted to buy the property subject to the freeze. Con-

versely, it is undisputed here that the development mor-

atorium was imposed in the proper exercise of the State’s

police powers to preserve all scarce vacant land resources

in Cherry Hill while the township’s Mt. Laurel obligation

was being reviewed by the Council. Lomarch is therefore

inapplicable to this case, and the State courts properly

chose not to consider it either instructive, persuasive or

controlling.*

In conclusion, the State court opinion at issue applied

well-established principles of takings law to the circum-

stances of this case and correctly concluded that the 18-

month land development moratorium imposed to enable

a municipality to satisfy its obligation under the State

constitution to provide for its fair share of lower income

housing did not work an unconstitutional temporary tak-

ing of Tocco’s land. This unremarkable conclusion pre-

sents no special and important reason requiring further

review by this Court and Tocco’s petition for a writ of

certiorari should therefore be denied.

»

er

* Obviously, the New Jersey Supreme Court, which authored

the opinion, was not troubled by any purported conflict

between Lomarch and the Appellate Division’s decision in this

case since it declined to review the decision.

17

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Rosert J. De. Turo

Attorney General of New Jersey

Attorney for Respondent

New Jersey Council on

Affordable Housing

Mary C. JACOBSON

Deputy Attorney General

ounsel of Record

Topp A. WiIpGER

Deputy Attorney General

On the Brief

Dated: February 28, 1991