Petition — Interstate Marina Development Co. v. Wright

October Term, 1982

INTERSTATE MARINA DEVELOPMENT CO., a limited part-

nership,

Petitioner,

vs.

DorRILL B. WRIGHT; Lois EWEN; HARRIET ALLEN; MILDRED

BENIOFF; HANK DOERFLING; MARY HENDERSON; HELEN

McABoy; JUDY ROSENER; JOHN RUSH; NAOMI SCHWARTZ;

LYNN SCHENK; and RICHARD GOLDEN, each individually

and as members of the California Coastal Commission;

MICHAEL FISCHER, individually and as Executive Direc-

tor of the California Coastal Commission; CALII‘ORNIA

COASTAL COMMISSION, an agency of the State of Cali-

fornia; and THE STATE OF CALIFORNIA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GIDEON KANNER,

1441 West Olympic Blvd.,

Los Angeles, Calif. 90015,

(213) 736-1058,

HILLEL CHODOS,

9595 Wilshire Blvd., Suite 600,

Beverly Hills, Calif. 90212,

(213) 278-2356,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

i

Questions Presented.

1. Where a state regulatory body ‘‘temporarily’’ and

unlawfully prevents a property owner from putting his land

to any lawful or reasonable use for years — all on the pretext

that the delay was for the benefit of the public — does the

‘*temporary’’ character of the taking insulate the state from

liability for just compensation under the Fifth and Fourteenth

Amendments?

2. A fortiori, where the state, through one of its coun-

ties, owns the fee interest in the land, and the property

owner has only a sixty-year leasehold interest on which he

must pay rent and taxes annually, so that the years of delay

permanently and irretrievably deprive him of a part of the

leasehold interest for which he is paying, has there been a

pro tanto permanent taking of property entitling the property

owner to just compensation?

3. Should the Court now address on the merits the issue

of proper taking remedies, left open in Agins v. City of

Tiburon, 447 U.S. 255 (1980), and again left open in San

Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621

(1981), and thereby resolve the nationwide disagreement

now raging among state courts and among the circuits?

TABLE OF CONTENTS

Page

CROSMIND SNOUIOE Bi Veisicnivccdbeviecived dies sicredoccere i

RUINS HCO Goi idivaiacssiibesisndesscesscececscedes 2

PURRUIEE RCRA CTED Vet shtrdas Veen ccovvebvicivesesecdesyoues 2

Constitutional and Statutory Provisions Involved ...... 2

EN TM ic cab suai Nus sin siaivembedocccedeececs 3

EUCRMMIEEE SUMMEITIOUE ase casibeiescnipecdiccercosecsoeces 3

ET IM Sep oadeeithes so asasn¥igecsdosrcocscscpees 3

Reasons for Granting the Writ ..............cccccceeeeeenes 8

SERINE 1 alas Cus W aba AAUANis sy obdesebibesiescsecvesedt 8

I

There Is a Vacuum of Guiding Principle in the Law

of Regulatory Takings, That Needs the Court’s

MMII Es che hak envi l Lun sdduvOusNtonbnthus vesceccocesss 9

A. The Country Desperately Needs This Court’s

Guidance as tc Where Flexibility Ends and

PRCT SPUD Vi hiridgs vi bavavedesccodcccenecs 9

B. There Is Outright Conflict Between Circuits

on the Issue of Temporary Regulatory

MRED \sidactolse ask edhincedbsatideveievesions ess 11

Il.

The Taking Criteria of Penn Central Have Been Sat-

isfied in the Case at Bench ...............cceeeseeees 12

Ill.

Apart From the Taking Issue, the Compensation Issue

Has Produced a Welter of Conflicting and Irrec-

oncilable Approaches Among State and Federal

Courts, All Claiming to Construe the ‘‘Just Com-

pensation’’ Clause of the Fifth Amendment, Quar-

reling With One Another and Some Simply Defying

RAMEE ci cheese el libadsububecdapett sb oeessscccectdes 14

iii

Page

A. When Deciding Questions of Remedies for

Uncompensated Takings, This Court Has for

the Past Half-Century Consistently Opted for

Compensation as the Proper Remedy ........ 14

B. The State Court Decisions on Remedies Can-

not Be Organized Into Any Legal or Intellec-

tual Pattern; They Are Irreconcilable With

Decisions of This Court and With One

FIN ig a hk ch VERSA tN Wa den sdha Cheesdonavespones 15

C. The Circuits Are in Conflict ................06. 19

IV.

The Eleventh Amendment Issue Alluded to in the

Court of Appeal Opinion Is Not Dispositive Be-

cause There Remain Individual Defendants ....... 20

CSOMGMRRIOID. LU. ou vbadss a andeaniia vale phased deka on UnCpeecnes 21

INDEX TO APPENDICES

Appendix A. Memorandum ...............006: App. p. 1

Appendix B. Order. Appellant’s Petition for Rehear-

SG TW BOOMING He dsicta iiinians os ecibceitess ct scvsvotnepeves 7

pe

iv

TABLE OF AUTHORITIES CITED

Cases Page

Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr.

372, 598 P.2d 25 (1979), aff'd. on other grounds,

G41 U.S; 25S (ESC) sscic ees Oe UE i, 6, 8, 15, 19

Aircrash in Bali, etc., In re, 684 F.2d 1301 (9th Cir.

MORON arsiptivaditntachscetathavcnatekorseana ia’ ste bked 16, 19

Askew v. Gables-by-the-Sea, 333 So.2d 56 (Fla. App.

MOWER baieexeoucvvva ts vedehiens veabecahaecobik ue desea enite sie. 18

Brazil v. City of Auburn, 598 P.2d 1 (Wash. App.

PO RME claret uhdaevanad seesdansacboeacd eoossnageds sve vobedecedh 17

Burrows v. City of Keene, 432 A.2d 15 (N.H.

DELS evphhideatehpyshihsccebeiecsakedertukbens coe chervtnaes 19

Charles v. Diamond, 41 N.Y.2d 318, 360 N.E.2d 1295

SEGUE TROTTED ucivbcvcchanvuacass PAs uWOMbaeb Ho vcks cap sonuge 18

City of Austin v. Teague, 570 S.W.2d 389 (Tex.

ORIED Vaca coy Sans keeonee heed) Paeeem Roh ate hes ceed cee 11, 17

Clifton v. Berry, 259 S.E.2d 35 (Ga. 1979) ............ 17

Dames & Moore v. Regan, 453 U.S. 654 (1981) ..... 15

Davis v. Pima County, 590 P.2d 459 (Ariz. App.

RP LUD dss cine voghbQVhu ts cena eaLeDabaeekse.s aps eekhibanse 15

Devines v. Moier, 665 F.2d 758 (7th Cir. 1981) ...... 19

Dugan v. Rank, 372 U.S. 609 (1963) .............. 14, 15

Eck v. City of Bismark, 283 N.W.2d 193 (N.D.

DPE PDcaes se Uaruus <ckacinOMeAnbuasnMannimes erie) che hxocb sets 19

Fred F. French Investing Co. v. City of New York, 39

N.Y.2d 587, 350 N.E.2d 381 (N.Y. 1976) ..... pane 18

Fresno v. California, 372 U.S. 627 (1963) ............. 15

Gilliland v. City of Palmdale, 179 Cal.Rptr. 627 _

REPT Sd canhns drones ovupshinth ca Naedtretensddevksivenwnss 16

Gilliland v. County of Los Angeles, 126 Cal.App.3d

610, 179 Cal Rote, FSCIGB1) ..cci sakes eveseed. 16, 17

Gordon v. City of Warren, 579 F.2d 386 (6th Cir.

SO TOR Wass cosets saod Jenckehcdes umn tORiietdes 10, 11, 14, 19

Page

Hamilton v. Conservation Comm’n., 425 N.E.2d 358

CPE OMND: RODS) afccvikandabapinradvabeness sccieccreyces 17

Hans v. Louisiana, 134 U.S. 1 (1890) ................... 20

Hermanson v. Board of Comm’rs., 595 P.2d 694 (Colo.

FRET. So uhsanedecappececehsdbbamthasedba ces coaved comes 18

Hernandez v. City of Lafayette, 643 F.2d 1188 (Sth Cir.

I oi cbil Tes cawensdbdandoavaMeRebsasccnecband aed 19

Hurley v. Kincaid, 285 U.S. 95 (1932) ............ 14, 17

Keystone Associates v. State, 371 N. Y.S.2d 814 (Ct.Cl.

1975), rev'd. 389 N.Y.S.2d 895 (App. Div. 1976),

rev'd and remanded, 45 N. Y.2d 894, 383 N.E.2d 560

RPELE FBTR wi vicvones Ocacubadamvbimias qkivesehdanees 11, 18

Kimball Laundry Co. v. U.S., 338 U.S. 1 (1949) .... Il

Kraft v. Malone, 313 N.W. 2d 758 (N.D.) .........668. 18

Lake Country Estates v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979) .........ccceeee 15, 16, 20

Lomarch Corp. v. Englewood, 237 A.2d 41 (N.J.

BONDS ccc cchandhaseaead ovanebte Casapiboweweued <ycavvaeuieena 11

Loretto v. Teleprompter Manhattan CATV, 53 N.Y.2d

124, 423 N.E.2d 320, reversed .... U.S. ...., 73

L.Ed.2d 868, 102 S.Ct. .... (1982) ..........000 15, 18

Lynch v. Household Finance Co., 405 U.S. 538

CWDS) siinin oat Round SLATER bab oe eebebeeda bes +0 ose endehende 21

Mailman Dev. Corp. v. Hollywood, 286 So.2d 614 (Fla.

PUNT OD) siti gcadbaunacachaeienpane nokieets cdbisaanobane 18

Marina Plaza v. California Coastal Zone Conservation

Commission, 73 Cal.App.3d 311, 140 Cal.Rptr. 735

LORIN Ura bein skeen srest od alebebebelhinhs o'ada nace 4, 6

Milardo v. Coastal Resources Man. Council, 434 A.2d

OO Cis Pda) ckncacdevaccgeatine vukakaedbias ve aucendena 17

Moviematic Industries, Inc. v. Dade County, 349 So.2d

SOTA Oey RD SOLID tates sai sebetieacioonescnssancheeys 18

vi

New York Telephone Co. v. North Hempstead, ... N.Y.

Bk cig GD. Nok COOLING s BUTE) etic csccsecentics 18

Pamel Corp. v, Puerto Rico Highway Authority, 621

Re ae ERG SCN RIOD bo Wa cccesnechadibascsghedaces suns 20

Penn Central Transp. Co. v. City of New York, 438

ME. TOG KESTER) soc ooe ob Secbbd Gaon Meeos tileeet 9, 12, 13, 14

Persinger v. Islamic Republic of Iran, 690 F.2d

PANDY (Bee io cdnd bunsdsnssdvtibue ycccadgabes Luh accsevayetooeye 19

Rose v. State of California, 19 Cal.3d 713, 123 P.2d

SUR lv 065600 Ra8d ead bani deckcds sett Phs ech indguaveeste 20

San Diego Gas & Elec. Co. v. City of San Diego, 450

U.S. 621 (1981) ............. i, 8, 9, 12, 13, 14, 16, 21

Second Employees’ Liability Cases, 223 U.S. 1

SPR ueEsSE\S Sh cca sshaands adoase pctv enshVebbe odedadeadeaenst 16

Sheer v. Township of Evesham, 445 A.2d 46 (N.J.

OR NSIS. Si ccbinscoWopaas chussocaechaphes ovdeticodocenia 17

Sixth Camden Corp. v. Township of Evesham, 420

PP TOT MAP.EN Da EPTOD, ccctycocdceainesvecebaibecess 11

Smith v. U.S., 458 F.2d 1231 (9th Cir. 1972) ......... 12

Testa v. Katt, 330 U.S. 386 (1947) ...............00.008. 16

The Regional Rail Reorganization Act Cases, 419 U.S.

SEER GRO) ch Feat i ig nedupaeh i egranchuddapaceicsnacepeveciga 15

United States v. General Motors Corp., 323 U.S. 373

CAS CaUee Geis as she Cov Olan akbdul cdhenvnde soe) oe sdpne 11, 12

CERI Abe seh calasedeccetcdhvevs VOPIUC Peds .isiuhevabiens) 15

Ventures in Property I v. City of Wichita, 594 P.2d 671

RE, RUTOR cad sadeseccctacvecansecehMuaiatecheverttysnesse 17

Village of Willoughby Hills v. Corrigan, 278 N.E.2d

658 (Ohio 1972) cert. den. sub nom. Chrongris v.

Corrigan, 409 U.S. 919 (1972) ....cccccceccceecneceeees 17

vii

Page

Wheeler v. City of Pleasant Grove (Sth Cir. 1981), 644

FBG GP iin inka cbt: sUedaaD Vande s cadebnh sid cdadtcdber ose 19

Wyoming Borough v. Wyco Realty Co., 440 A.2d 696

res CHRIS TP inne s ccdpcodsavcapudaivscovncanteves 15

Constitutions

California Constitution, Art. I, Sec. 19 ..............0.4. 20

United States Constitution, Fifth Amendment ... i, 2, 20

United States Constitution, Eleventh Amendment ..... 20

United States Constitution, Fourteenth Amendment

SARs one. Vednaes Cheep ee eee AaRtMbes ches ses ace age i, 2, 10

Rules

Revised Rules of the Supreme Court of the United

FORD TREOD OD PUR) 0 vebnedansdepncsdsebeucesschaheccdescedh 20

Revised Rules of the Supreme Court of the United

UGG TRIMND LTR PUD. siete s scedbduubadbccwprause’s coesacess 16

Statutes

California Public Resources Code, Sec. 30334(b) ..... 20

United States Code, Title 28, Sec. 1254(1) ............. 2

United States Code, Title 28, Sec. 1331 ..............4. 2

United States Code, Title 28, Sec. 1343 ..............4. 2

United States Code, Title 42, Sec. 1983 .............05.

vephalh eh peaphWnerewadetdashamdsnnev RAMUS oce 3, 10, 15, 16

Treatises

Berger, You Can’t Win Them All — Or Can You? 54

Cal. State Bar Journal 16 (1979) ..........:.cccccceeees 5

Van Alstyne, Taking or Damaging by Police Power:

The Search for Inverse Condemnation Criteria, 44 So.

Cabs TROY «3 ZS: CISA dae ic iieaapedscindskeversores 9

Witkin, Manual on Appellate Court Opinions (West,

TOT TY D. OS. vecspisvanasceuicyscarinveesWeh Givei ven (udvacses 17

No. ....

IN THE

Supreme Court of the United States

October Term, 1982

INTERSTATE MARINA DEVELOPMEN: CO., a limited part-

nership,

Petitioner,

vs.

Dorit B. WriGHT; Lois EWEN; HARRIET ALLEN; MILDRED

BENIOFF; HANK DOERFLING; MARY HENDERSON; HELEN

McAsoy; JUDY ROSENER; JOHN RUSH; NAOMI SCHWARTZ;

LYNN SCHENK; and RICHARD GOLDEN, each individually

and as members of the California Coastal Commission;

MICHAEL FISCHER, individually and as Executive Direc-

tor of the California Coastal Commission; CALIFORNIA

COASTAL COMMISSION, an agency of the State of Cali-

fornia; and THE STATE OF CALIFORNIA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Interstate Marina Development Co., respect-

fully prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals for

the Ninth Circuit.

hae a

fall, Yo

THE OPINION BELOW.

The Court of Appeals rendered its decision by Memo-

randum Opinion (unpublished), captioned /nterstate Marina

Development Co. v. The Staie of California, No. @1-5312.

JURISDICTION.

1. This is an action for just compensation in which

Plaintiff-Petitioner contends that Defendants-Respondents

(the State acting through its Coastal Commission, and cer-

tain officials thereof sued individually and in their official

capacity) effected an uncompensated taking, and deprivation

of Petitioner’s property without due process of law.

2. The opinion below was filed on August 23, 1982.

Petitioner’s timely petition for rehearing was denied on

October 12, 1982.

3. Jurisdiction of the U.S. District Court in which this

action was brought was based on 28 U.S.C. §1331 and 28

U.S.C. $1343.

4. This Court's jurisdiction is invoked under 28 U.S.C.

§$1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED.

Fifth Amendment, U.S. Constitution:

‘*. . , nor shall private property be taken for public

use, without just compensation.”’

Fourteenth Amendment, U.S. Constitution:

‘Section 1. . . . No State shall make or enforce any

law which shall abridge the privileges or imniunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws."’

Gad

42 U.S.C. $1983.

‘*Every person who, under color or any statute, or-

dinance, regulation, custom, or usage, of any State

. » «» Subjects, or causes to be subjected, any citizen

of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privi-

leges or immunities secured by the Constitution and

laws, Shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for

redress.’’

STATEMENT OF THE CASE.

Procedural Statement.

Petitioner seeks review of the affirmance of a District

Court dismissal of its action against the California Coastal

Commission and its members, seeking interim just com-

pensation for a temporary taking of its entire leasehold, and

a permanent pro tanto taking of the part of its 60-year

leasehold that was irretrievably destroyed during the years

of the regulatory taking.

STATEMENT OF FACTS.

Interstate Marina Development Co. (IMDC) is a limited

partnership holding a 60-year lease on an approximately

four-acre parcel in the Marina Del Rey area of Los Angeles

Courty. The Marina Del Rey, a project of the County, has

been intensively developed over the years, and is well

known as a complex of marinas and various water-oriented

apartments, condominiums, hotels, restaurants, offices, and

other businesses. It is, in short, a fully developed urban

area, not some sort of environmentally fragile open land.

The land is owned in fee simple by the County of Los

Angeles, a political subdivision of the State, and the IMDC

lease requires that IMDC improve the subject property with

hotels, apartments, restaurants and o.her facilities designed

to maximize the return from the land. This return-empha-

pa Wea

sizing feature was inserted into the lease at the County’s

insistence. Under the lease, and throughout the events that

gave rise to this action, IMDC has been required to pay

rent to the County, and has been taxed on its leasehold

based on such contemplated intensive, income-producing

uses, even though for years IMDC was prevented from put-

ting the subject property to any economically rational use

whatsoever.

In 1972, California adopted by initiative the Coastal Zone

Convervation Act which imposed a number of regulatory

requirements on land uses in the Coastal Zone, which in-

cludes Marina del Rey. After completing necessary prelim-

inary work, IMDC applied for a coastal development permit

in 1976, but the Regional Coastal Commission denied the

application. The State Coastal Commission refused to hear

IMDC’s appeal.

Thereupon IMDC brought parallel actions against the

Commission in state and federal courts.' At first, the U.S.

District Court abstained because another entity (Marina

Plaza — of which more presently) was in the process of

litigating potentially dispositive state law issues. After the

State courts ruled adversely to Marina Plaza (see Marina

Plaza v. California Coastal Zone Conservation Commis-

sion, 73 Cal.App.3d 311, 140 Cal.Rptr. 725 (1977)), the

District Court resumed exercise of its jurisdiction. IMDC

then moved for partial summary judgment. After first re-

sisting, the Commission stipulated that IMDC’s permit ap-

plication be remanded for reconsideration, This was ordered

on December 15, 1978. The following month, the Regional

Commission granted the permit application, but this was

appealed by opponents of IMDC's project to the State

'The defendants are hereafter collectively referred to as *‘the Com-

mission,’’ unless otherwise indicated.

Mi

Coastal Commission’ which — sharp contrast with its earlier

attitude, when IMDC was appealing a permit denial —

found that when the appeal was pursued by IMDC’s ad-

versaries, there was after all a substantial issue, and set the

matter for hearing.’

In the meantime, Marina Plaza, another entity, was still

pursuing its permit application (an effort that began in 1973)

to build an entirely different project in the Marina del Rey

area. But, acting on the pretext that one of IMDC’s general

partners was also a partner in Marina Plaza, the Commission

— over vehement objections of both IMDC and Marina

Plaza — consolidated the two matters and heard one appeal

for both projects.

The Commission then ostensibly granted both permits,

but cynically made them subject to onerous conditions that

rendered both permits illusory as a practical matter. Marina

Plaza had applied for a 9-story, 300-room hotel, but it was

‘*permitted’’ to build a 3 to 4 story, 75 to 100 room motel.

And, evidently to make sure that Marina Plaza’s project

would be economically unviable, the Commission also re-

quired that Marina Plaza include a youth hostel, a public

promenade, provide public recreational vehicle hookups,

and provide public bicycle racks. Then, to drive the last

nail into Marina Plaza’s economic coffin, the Commission

decreed that Marina Plaza could charge no niore than $20

per night per room, and that its restaurant charges be com-

para e¢ to those of such large-scale, low-cost chain oper-

"Under California's ie peactics, virtually anybody can

in Comm: ssion ings appeal a Regional Commission -

mination, but the state Commission hears such appeals only if it first

decides that there is a substantial issue.

‘The attitude of the Commission toward private landowners, and the

California “aap —_ unduly indul PH amrry oh bs vo,

sion, ma gleaned from Berger, You Can't Them All — Or Can

You?, 34 Cal State Bar Journal 16 (1979).

nh” av

ations as Sambo’s or Denny’s (a level totally incompatible

with any quality hotel operation).

The reason why this blatant mistreatment of Marina Plaza

is pertinent, is that the Commission then conditioned

IMDC’s permit on the economically ridiculous Marina Plaza

project being built first, and on the posting by IMDC of a

‘construction bond’’* to ensure the completion of the

Marina Plaza project in accordance with that permit,

It was the Commission's avowed intention, evident from

its findings, to require IMDC to subsidize the youth-hostel

and other low-cost, public service features they had imposed

on the Marina Plaza project, in order to get permission to

build its own jroject.

IMDC amended its complaint to allege the above events,

and filed a parallel action in the state Superior Court to set

aside the conditions. The state court entered judgment in

IMDC’s favor to the extent of issuing a writ of mandate,

but denied any monetary relief under the complusion of

Agins v. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598

P, 2d 25 (1979), aff'd. on other grounds, 447 U.S. 255

(1980).

Since then, the Commission has replaced most of the

conditions objected to with ones that IMDC can live with.

There is thus no further non-monetary relief that is appro-

priate. The only question left is whether IMDC is entitled

to recover just compensation for this complete deprivation

of its property for the years consumed while the Commission

went through its various unlawful maneuvers. To that ex-

tent, Petitioner has suffered grievous losses and years of

“Such a bond, which even in would be enormously expensive

could not in reality be obtained at all because it would create liabilicy

sep igebegd ewer a pane babes met png renga!

in its mind would underwrite such an uncontrollable lity of

one for the acts or omissions of another.

REASONS FOR GRANTING THE WRIT.

INTRODUCTION,

The aftermath of this Court's decision in Agins v.

Tiburon, 447 U.S. 255 (1980), and San Diego G. & E. Co.

v. City of San Diego, 450 U.S. 621 (1981), in which the

Court declined to deal with the issue of remedies for reg-

ulatory takings, has been a veritable maelstrom of litigation

throughout the nation, with conflicting ai, utterly irrec-

oncilable results, remedies and legal theories.

While the Constitution purports to protect private property

against takings, it is a matter of common knowledge that

zealous local officials, with an ear cocked to their influential

(usually affluent suburbanite) environmentalist constitu-

ency, are using onerous regulations, complex regulatory

procedures and, above all, delay, to acquire de facto various

interests in the ostensibly ‘regulated’ land, Until and unless

this Court speaks out on this issue with clarity, such large-

scale subversion of the constitutional protection is certain

to go on. The belief that no damages are payable for abuse

of private property rights is viewed — often quite cynically

— by local officials (who would rather not have to spend

public money) as a basis for taking a risk-free shot at stul-

tifying private property rights and grinding down their own-

ers with enormously costly delay, huge losses, and litigation

expenses.

This case provides the Court with an opportunity to ad-

dress a limited facet of the ‘taking issue:’’ j.e., whether

a temporary regulatory taking invokes the guarantee of the

Taking Clause and requires payment of just compensation.

This.case provides the Court with an unusually clear and

egregious example of how de facto confiscation can disguise

itself as ‘‘regulation,’’ and how ostensibly ‘‘temporary"’

interference with property rights, in the case of a lessee, de

lan

facto deprives him totally and permanently of a significant

portion of his leasehold for which he is forced to pay rent

and taxes by the very government that denies him any use

of it. This case offers the Court a unique opportunity to

continue its case-by-case approach toward systematizing the

law of takings so as to create a body of guiding precedent.

Beyond Petitioner's plight, it is doubtful whether there

has ever been a serious issue of constitutional law that has

so sharply divided the country’s judiciary, and simultane-

ously left it so bereft of authoritative guidance from this

court. Remedial intervention by this Court is urgently

needed; it is a matter of serious national priority.

I.

THERE IS A VACUUM OF GUIDING PRINCIPLE IN THE LAW

OF REGULATORY TAKINGS, THAT NEEDS THE

COURT'S ATTENTION.

A. The Country Desperately Needs This Court’s Guid-

ance As to Where Flexibility Ends and Precedent

Begins.

The avowedly ad hoc, case-by-case approach to issues

of non-physical takings, favored by the Court thus far (see

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

104, 123-24 (1978)) has with the passage of time led to

situations where predictability has been sacrificed to flex-

ibility to such an extent that neither private nor public parties

across the Nation are able to ascertain what their rights are

without first litigating through the highest appellate levels.

Even then, the results are chaotic.’

‘This is the peeveling view recy scholars of the first rank; see

commentaries collected in San Diego G. & E. Co. v. City of San Diego,

450 U.S. 621, 649, fn. 15. To those commentaries there should also

be added the scathing assessment of Prof. Arvo Van Alstyne, another

leading scholar in this field, that ‘*with some exceptions, the decisional

law is largely characterized by confusing and incompatible results, often

ex in conclusionary . circular reasoning and

a. "’ Van nae Taking or Bama by Police Soele: The

‘ondemnation Ci

Search for Inverse So. Cal. L. Rev. 1,

(1970).

== 10

The relatively infrequent decisions of the Court in this

field, combined with the avowed ad hoc nature of judicial

inquiries, merely provide incentives to further litigation, as

both sides to this durable conflict press their causes on the

courts in an effort to reduce to precedent the infinitely var-

iable facts of each individual dispute. ‘‘Even the modicum

or predictability which might otherwise inhere in the pattern

of judicial precedents is impaired by the frequently reiterated

judicial declaration that each case must be decided on its

own facts.’’ Van Alstyne, supra, fn. 6, at 2-3.

The case at bench is a good example. Here, the conduct

of the defendants was unlawful, as eventually determined

by the state courts. Yet that unlawful conduct irretrievably

took a substantial part of Petitioner’s leasehold; the entire

property was rendered totally useless for years. As more

fully discussed infra, the Sixth Circuit considered this very

issue (whether such temporary unlawful deprivations of the

use of one’s property give rise to valid claims under the

Fourteenth Amendment and 42 U.S.C. §1983), and con-

cluded that they do; see Gordon v. City of Warren, 579 F.

2d 386 (6th Cir. 1978). Yet in the case at bench the Ninth

Circuit casually dismissed that very same claim because the

taking was ‘‘only temporary,’’® thereby assuming away the

central constitutional issue and creating conflict with the

Sixth Circuit.

*The court below evidently confused the tem decline in value

resulting from announced, and then , condemnation plans,

(a situation which leaves the fee simple title landowner in a position

ul ret whe pe return to Feeney his uted yr na

i , with a temporary taking of a portion of a leasehold t

te the lessee from using his cals leasehold for years, thereby

vably depriving him pro tanto of his leasehold.

MEE, ll

B. There Is Outright Conflict Between Circuits on the

Issue of Temporary Regulatory Takings.

The present situation is wasteful of public and private

resources, and has inspired positively chaotic conditions,

and outright conflict between Circuits. Thus, the Sixth Cir-

cuit holds that a temporary deprivation of use of private

land by local regulations eventually held invalid in state

court proceedings, is a compensable temporary taking. Gor-

don v City of Warren, supra, 579 F. 2d 386 (6th Cir.

1978); accord Sixth Camden Corp. v. Township of Evesham,

420 F. Supp. 707 (D.N.J. 1976).

But in the case at bench the Ninth Circuit, without anal-

ysis or reference to authority, simply brushed aside this

important issue’ with a casual statement that the ‘‘. . . dep-

rivation was only temporary . . .’’ (Slip opinion, p. 5, Ap-

pendix A, p. 4, emphasis added).

So far Petitioner has been deprived of all use, value and

return of its land for seven years. Can that be ‘‘only’’ tem-

porary? A fortiori, since Petitioney’s interest was, to begin

with, a leasehold, can an unlawful pro tanto destruction of

it, so that part of it is irretrievably gone, be dismissed as

‘‘only’’ temporary?* But aside from such semantic dispar-

’The results reached by the Sixth Circuit have also been the law in

a number of states; see ch Corp. v. Englewood, 237 A. 2d 41

(N.J. 1968); Keystone Associotes v. State, 371 N.Y.S. 2d 814 (Ct. Cl.

1975), rev'd. 389 N.Y.S. 2d 895 Ae. Div. 1976), rev'd and re-

manded, 45 N.Y. 2d 894, 383 N.E. 2d 560 (N.Y. 1978); City of Austin

v. Teague, 570 S.W. 2d 389 (Tex. 1978).

ie all due respect, the vont below evidently f ot that the law

of *‘just compensation"’ to te as well as permanent

takings. In the temporary takings of World War II this Court erp

held just sation payable. Some of the landmark World War Il

decisions of Court arose from cases where the taking (includin

that of a leasehold) was admittedly . See U.S. v, Genera

Motors Corp., 323 U.S. 373 (1945), K l Laundry Co. v. U.S.,

338 U.S. 1 pap As gh pa nes the eye Md

compensation in ‘emporary may be, if an , greater

ina taking of fee simple title, Sika be tesomiared tee

World War II only lasted three-and-a-half

f

a

:

is | Pew

agement and even on the Court of Appeals’ erroneous prem-

ise, the government can no more commandeer private prop-

erty temporarily than permanently (see e.g., Smith v. U.S.,

458 F. 2d 1231 (9th Cir. 1972).’ The same is true of reg-

ulatory takings; San Diego G. & E. Co. v. City of San

Diego, supra, 450 U.S. at 653-654 (Brennan, J., dissenting

from dismissal of appeal, but on the issue of remedies in-

timating the views of five members of this Court — see

Rehnquist, J., concurring, 450 U.S. at 633).

il.

THE TAKING CRITERIA OF PENN CENTRAL HAVE BEEN

SATISFIED IN THE CASE AT BENCH.

In Penn Central Transp. Co. v. City of New York, 438

U.S. 104, 124, this Court set up the factors of ‘‘particular

significance’ in determining whether a taking has occurred.

All of these are present at bench.

First, ‘*The economic impact of the regulation on the

claimant and, particularly, the extent to which the reg-

ulation has interfered with distinct investment-backed

expectations . . .’’ 438 U.S. at 124

Here, the impact on the claimant has been total: for

most of a decade, the claimant has been completely

deprived of all use, or return on his leasehold. Unlike

diminution of value (which may eventually be undone

by a rising market) the Petitioner's status as lessee

makes the injury completely irreversible; nearly one-

sixth of its ownership is completely gone. During that

time, moreover, the state (acting through its political

subdivision, the County) continued to exact a heavy

investment from Petitioner, by insisting that Petitioner

"The ‘‘taking’’ for which just compensation must be paid is the

deprivation of the owner of hh versony | interest, and does not

on accretion of any right to the taker. U.S. v. General Motors Corp.,

supra, 323 U.S, at 377-378.

ais acs

pay rents and taxes on his leasehold, even as he was

being prevented unlawfully from putting the leased

land to any use whatever, and even as his leasehold

period was irretrievably ticking away.

As Mr. Justice Brennan put it in San Diego G. &

E. Co. v. City of San Diego, supra, 450 U.S. at 657:

‘“‘The fact that a regulatory ‘taking’ may be tem

porary, by virtue of the government’s power to rescind

or amend the regulations, does not make it any less of

a constitutional ‘taking’.”’

Second, while the invasion of property rights here

was not physical, it was also not a case of ‘*. . . ad-

justing the benefits and burdens of economic life to

promote the common good.’’ (cf. 438 U.S. at 124)

Here, the ‘‘regulation’’ was a mere pretext, and was

eventually held unlawful by the state courts whose

rulings were acceded to by the Coastal Commission.

Yet, this pretended pursuit of the public good was the

ostensible rationale for depriving Petitioner of all use

of all its property for years.

Third, Petitioner’s leasehold interest is unquestion-

ably a constitutionally protected property right (cf. 438

U.S. at 124-125).

Fourth, the gravamen of Petitioner’s case is that it

was deprived of all reasonable, economically viable

uses of its property while Respondents went on with

their unlawful ‘‘regulation’’; i.e., Petitioner was not

merely prevented from using its property for some par-

ticular use (cf. 438 U.S. at 125), but for any econom-

ically viable uses (see particularly the Court’s discus-

sion at 438 U.S. at 127-128 concerning the implications

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

of Armstrong v. U.S., 364 U.S. 40 (1960)). As a result,

about one-eighth of Petitioner’s leasehold is gone for-

ever. Beyond that, Petitioner was required to pay taxes

and rent to the very government which prevented it

from using the property at all.

sist," Tea

Finally, in contrast with Penn Central, here a state

tribunal concluded that this ‘‘regulation’’ was unlawful

(cf. 438 U.S. at 125).

In sum, all the earmarks of a regulatory taking under

Penn Central are present here. The court below denied relief

solely because of its mistaken view that private property

may be taken without compensation if that is done ‘‘only

temporarily.’’ That, conclusion, however, is conceptually

in error,’® it creates direct conflict with Gordon v. City of

Warren, supra, and disregards a long line of this Court’s

decisions holding that just compensation must be paid for

temporary takings.

Il.

APART FROM THE TAKING ISSUE, THE COMPENSATION

ISSUE HAS PRODUCED A WELTER OF CONFLICTING

AND IRRECONCILABLE APPROACHES AMONG STATE

AND FEDERAL COURTS, ALL CLAIMING TO CON-

STRUE THE “‘JUST COMPENSATION” CLAUSE OF THE

FIFTH AMENDMENT, QUARRELING WITH ONE AN-

OTHER AND SOME SIMPLY DEFYING THIS COURT.

A. When Deciding Questions of Remedies for Uncom-

pensated Takings, This Court Has for the Past Half-

Century Consistently Opted for Compensation as

the Proper Remedy.

There is little that can be added to the above subheading;

this Court’s decisions speak for themselves. See Hurley v.

Kincaid, 285 U.S. 95 (1932); Dugan v. Rank, 372 U.S.

"Even a casual contemplation of the ‘bundle of sticks’ concept of

property, discloses at once that a number of important and valuable

property rights (leaseholds, life estates, and , to name but a few

examples) are inherently in heir . The court below

evidently did not reflect on tale ther ee tenly temporary” jen

cation, Meats of tn ialion (6:4. ho sile shook

by goverment witout compensation A

sere Sg ecbewe, “apgidgmeen obser cheesey 9 Tp gay to

wien, oh ly — impermissible; see 450 U.S. at 7-658. If the

ruling were sound, the government would have no need to

for leases; it would instead take * oe ee

to pay just compensation.

enw f Se

609 (1963); Fresno v. California, 372 U.S. 627 (1963);

United States v. Gerlach Live Stock Co., 339 U.S. 725,

752-753 (1950); The Regional Rail Reorganization Act

Cases, 419 U.S. 102, 126-127 (1974); Lake Country Estates

v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979);

Dames & Moore v. Regan, 453 U.S. 654, 689-690 (1981);

Loretto v. Teleprompter Manhattan CATV, ... U.S. ..., 73

L. Ed. 2d 868, 886 [14], 102 S. Ct. ... (1982).

And yet, in spite of this clear and consistent line of the

highest authority, definitively construing the remedial at-

tributes of the Taking Clause, the pattern of the lower courts

— state and federal — is simply chaotic.

B. The State Court Decisions on Remedies Cannot Be

Organized Into Any Legal or Intellectual Pattern;

They Are Irreconcilable With Decisions of This

Court and With One Another.

At one end of the spectrum are the ‘‘absolutist’’ states

which flatly refuse to permit awards of just compensation

no matter how egregious the taking affected by harsh reg-

ulations. See Agins v. City of Tiburon, 24 Cal. 3d 266, 157

Cal. Rptr. 372, 598 P. 2d 55 (1979), aff'd on other grounds,

447 U.S. 255 (1980); Davis v. Pima County, 590 P. 2d 459

(Ariz. App. 1978); Wyoming Borough v. Wyco Realty Co.,

440 A. 2d 696 (Pa. Cmwith. 1981).

California, alas, in this legal area evidently means to live

up to its general ‘‘far out’’ image; two decisions of its

intermediate appellate court have gone Agins one better,

and have for all practical purpose defied the Supremacy

Clause by holding that notwithstanding the Federal Civil

Righis Act’s (42 U.S.C. $1983) express provision for mon-

etary relief in an action at law (see Lake Country Estates

v. Tahoe Regional Planning Agency, supra, 440 U.S. 391

(1979)), they mean to award no compensation even where

saath iain

relief is sought under §1983. See Gilliland v. County of Los

Angeles, 126 Cal. App. 3d 610, 617, 179 Cal. Rptr. 73,

78 (1981), holding expressly that notwithstanding 42 U.S.C.

$1983, the California Supreme Court's Agins decision

means that monetary relief under §1983 would be ‘‘inap-

propriate.”’'' Even more egregious is the companion case

of Gilliland v. City of Palmdale, 179 Cal, Rptr. 627 (1981).

In the latter case, the California Court of Appeal analyzed

pertinent law, and coincidentally using Justice Brennan's

exact words in San Diego Gas & Electric Co. v. City of

San Diego, supra, 450 U.S. at 651, concluded that *‘Cal-

ifornia’s position flatly contradicts clear precedent of United

States Supreme Court cases,’ 179 Cal. Rptr. at 631, How-

ever, the California Supreme Court, instead of addressing

this troublesome issue"’ ordered this Gilliland opinion not

"**In view of that [Agins] decision, the remedy of monetary damages

would be unavailable in any event, whether the action were brought

in inverse conmdemnation or under the Federal Civil Rights Act.’’ (126

Cal. App. 3d at 617, 179 Cal. Rptr. at 78, emphasis added.) This poe 1

ry 9 views in ca v. wy 1 tt a vata Bee

ec Employees’ Liabi ases, 5S. 1 ), concerning

the state courts 7 under the Federal Supremacy Clause to give effect

to federal laws, With regard to monetary liability under $1983 for

onerous land use regulations, see Lake Country Estates, Inc, v. Tahoe

Regional Planning Agency, supra.

"By now the issue is acutely troublesome because the Ninth Circuit,

in a recent opinion, expressly di with the California Agins rule;

see In re Aircrash in Bali, etc., F, 2d 1301, 1311, fn. 7, following

ne Justice cog sre lip ont ology iw" psa Henny we mesa

opinion at (s nion, p. 5, A x A, p. 5.) disparages

those views. Since California lies within The Ninth Circuit, one must

thus conclude coed ge rey federal constitutional law in the nation's

most populous litigious ic area is dependent on which

court tries the suit. Corrective action by this Court is urgently needed;

see Rule 17(1)(b), Revised Rules of the Supreme Court of the United

eee! LO a

ieee

to be published in the official reports, thereby censoring it

out of California law."

At the other end of the spectrum are what might be termed

**strict construction’’ states which adhere to the position

that the ‘‘just compensation’’ language of the Constitu-

tion(s) compels a monetary remedy; these jurisdictions gen-

erally reason along the lines articulated by this Court in

Hurley v. Kincaid, supra, and its progeny. See Village of

Willoughby Hills v. Corrigan, 278 N.E. 2d 658 (Ohio

1972), cert. den. sub. nom. Chrongris v. Corrigan, 409

U.S. 919 (1972), Douglas, J., dissenting (opinion); Clifton

v. Berry, 259 S.E. 2d 35 (Ga. 1979). Two New England

states recently endorsed this approach by dictum: Milardo

v. Coastal Resources Man. Council, 434 A, 2d 266 (1982,

R.I.); Hamilton v. Conservation Comm'n., 425 N.E. 2d

358 (1981, Mass. App.).

Somewhere between these two polarized views are what

one might call the ‘‘flexible approach’’ states. These juris-

dictions either:

a) Allow both specific relief and monetary damages

to the extent losses are shown: City of Austin v. Teague,

570 S.W. 389 (Tex. 1978); Ventures in Property I v.

City of Wichita, 594 P. 2d 671 (Kan. 1979); Brazil v.

City of Auburn, 598 P. 2d 1 (Wash. App. 1979); Also

see, Sheer v. Township of Evesham, 445 A. 2d 46

(N.J. Super. 1982), or

"The California Supreme Court wields the plenary power simply to

order the State R of Decisions not to publish a Court of A

opinion in the official reports, thereby — in the words of California's

premier legal commentator — **. . . taking it out of the class of citable

.«»"", Witkin, Manual on Appellate Court Opinions, (West,

977), at p. 35. Thus, although this opinion was originally Bg gem

in the official California advance sheets at 127 Cal. ee 386, it

now appears only in the ‘‘unofficial’’ reports at 179 Cal, Rptr. 617,

b) Express a preference for specific relief (i.e., in-

validation of the harsh regulation), but with the proviso

that in circumstances where specific relief is not ef-

fective, damages are to be awarded. See, Hermanson

v. Board of Comm'rs., 595 P. 2d 694 (Colo. App.

1979); Kraft v. Malone, 313 N.W. 2d 758 \N.D.),

Moviematic Industries, Inc. v. Dade County, 349 So.

2d 667, 672 (Fla. App. 1977)"

c) Then there is New York whose law defies clas-

sification, On the one hand New York purports to hold

that invalidation is the only remedy, unless there has

been physical invasion or direct legal control of the

affected property, or where the injury suffered is ir-

reversible. Fred F. French Investing Co. v. City of

New York, 39 N.Y. 2d 587, 350 N.E. 2d 381 (N.Y.

1976). Yet, on the other hand, New York has stead-

fastly refused to compensate even in the face of phys-

ical invasion (see, New York Telephone Co. v. North

Hempstead, .... N.Y. 2d ...., 363 N.E. 2d 694 (N.Y.

1977), Loretto v. Teleprompter Manhattan CATV, su-

pra, 53 N.Y. 2d 124, 423 N.E. 2d 320, reversed,

wa. US, ...., 73 L.Ed. 2d 868 (1982)) or irreversible

injury (see, Charles v. Diamond, 41 N.Y. 2d 318, 360

N.E, 2d 1295 (N.Y. 1977)).

To confound New York's law even further, while

the above case law was being decided, the courts of

New York routinely awarded damages for interim

losses due to temporary de facto taking effected by a

harsh regulation in Keystone Associates v. State, 371

N.Y.S. 2d 814 (Ct. Cl. 1975), rev'd 389 N.Y.S. 2d

895 (App. Div. 1976), rev’d and remanded, 45 N.Y.

2d 894, 383 N.E. 2d 560 (1978).

"In spite of the dictum at the end of the Moviematic opinion, there

are inconsistencies in Florida nt eg yma) Dev. Corp. v.

H , 286 So. 2d 614 (Fla. . 1973), with Askew v, Gables-

deen 333 So. 2d 56 (Fla. ae 1976).

=) Gam

To add a contentious touch to this sea of inconsistency,

some of these state courts go out of their way to disagree

with one another; see e.g., Eck v. City of Bismarck, 283

N.W. 2d 193 (N.D. 1979), disagreeing with the sweep of

California's Agins decision, and particularly Burrows v.

City of Keene, 432 A, 2d 15, 20 (N.H. 1981), where the

new Hampshire Supreme Court expressly ‘‘reject[ed] out

of hand"’ the California Agins approach because, inter alia,

it is **. . . in violation of the Constitution of the United

States . . ."" (/d.)'* Yet all these courts purport to be fol-

lowing the law and construing the same provision of the

federal Constitution.

C. The Circuits Are in Conflict.

As noted, the Ninth and District of Columbia circuits

have opted for monetary damages (‘‘just compensation’’)

as a remedy for takings. /n re Aircrash in Bali, etc., supra,

665 at 1311; Persinger v. Islamic Republic of Iran, supra,

690 F. 2d at 1024-1025. So has the Fifth: Hernandez v.

City of Lafayette, 643 F. 2d 1188 (Sth Cir. 1981), Wheeler

v. City of Pleasant Grove (Sth Cir. 1981), 644 F. 2d 99.

So has the Seventh: Devines v. Moier, 665 F. 2d 758 (7th

Cir. 1981). So has the Sixth: Gordon v. City of Warren,

supra.

However, the First Circuit takes a diametrically opposite

position, evidently choosing to follow the absolutist Cali-

fornia Agins position, rejected by the other Circuits; see

"This is also the view of the Ninth Circuit; /n re Aircrash in Bali,

etc., supra, 684 F, 2d 1301, 1311, fn. 7 (9th Cir. 1982), where the

— = y noted that California's Agins ruling does not appear to

Ww.

es

Pamel Corp. v. Puerto Rico Highway Authority, 621 F. 2d

33, 35 (Ist Cir. 1980)!°

This Court's intervention is urgently needed, if nothing

else, to let the federal trial bench know which rule to follow.

Petitioner respectfully urges that the prevailing situation

thus invokes the criteria for this Court's intervention, set

forth in Rule 17(1).

IV.

THE ELEVENTH AMENDMENT ISSUE ALLUDED TO IN THE

COURT OF APPEAL OPINION IS NOT DISPOSITIVE BE-

CAUSE THERE REMAIN INDIVIDUAL DEFENDANTS.

There is little to be added to the above heading. Even if

the court below had considered the Eleventh Amendment

issue (see Appendix A, p. 6.) and resolved it adversely to

Petitioner,"’ that would not dispose of the case, as the ques-

tion of liability of the individual defendants remains as a

viable issue. See Lake Country Estates, Inc. v. Tahoe Re-

gional Planning Agency, 440 U.S. 319 (1979).

Accordingly, such issue presents no obstacle to this

Court's determination of the taking/compensation issue

"Thereb same conceptual anomaly now exists in New England

as in Cali Boog New Hampshire is within the First Circuit, yet it

interprets the Fifth Amendment's remedial aspects con to its federal

ya 8 es (Ni ni Coek | dh mM vy heheh of Cali eee

sagrees with its [Nin reuit es views cannot y

be correct. This is intellectual chaos. /

"While the Eleventh Amendment issue is not presented here for

review, it should be noted in passing that California, by its Constitution

(Art. 1, $19) has consented to suit for takings of : Rose v. State

of California, 19 Cal. 34 713, 722, 123 P. 2d 1942), and that the

rule of Hans v. Louisiana, 134 U.S. | (1890) is therefore inapplicable.

Moreover, California Public Resources Code §30334(b) ieee

ane that the Coastal Commission may, inter alia, be sued ‘

y court, board or nny of the state or federal government"’, em-

ghasls added, The w thus hardly be more explicit.

eK, ee

which was viewed as dispositive by the Court below, and

remains such now, wholly apart from any Eleventh Amend-

ment issues.

CONCLUSION.

In the end, the idea articulated by this Court in Lynch v.

Household Finance Co., 405 U.S. 538, 552 (1972) says it

all; not only are property rights expressly protected by the

Constitution, but a fundamental interdependence exists be-

tween them and the other liberties protected by the Bill of

Rights; ‘neither can having meaning without the other.’’

A government that has it within its whim to strip citizens

of their lawfully accumulated property, of their material

well-being on which rests the day-to-day security of their

families, has little need for overtly invading their other

seemingly protected liberties. That is the teaching of logic

and the verdict of history.

Substantive rights, even of constitutional dimension, have

no meaning unless their theoretical beneficiaries can avail

themselves of realistic remedies that make those rights a

reality. To say, as did the Court below, that one may be

prevented from using his leasehold for a eighth of its term,

encompassing over a half-dozen years, and then be denied

any relief because the outrage was ‘‘only temporary’’ is

shocking. A fortiori this is so where delay is so often the

wrongdoers’ openly and cynicaly chosen means of sub-

verting the very constitutional rights asserted by the victim

(see San Diego G. & E. Co. v. City of San Diego, supra,

450 U.S. at 654-657, particularly fn. 22).

Both the equities of this factual situation and the urgent

national need for clarification of the substantive and re-

medial aspects of this litigation-spawning ‘‘taking/compen-

sation issue’’ (which is increasingly baffling even the ex-

ae, ae

perts, to say nothing of the bewildered trial bench and bar)

cry out for intervention by this Court.

January 1983.

Respectfully submitted.

HILLEL CHODOS,

GIDEON KANNER,

Attorneys for Petitioner.