# Petition — Interstate Marina Development Co. v. Wright

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1038

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0276%3A1. Public record. Not legal advice.