Amicus Curiae Brief — Long Beach Equities, Inc. v. County of Ventura

Supreme Court, U.S.

a 4;

C7 JAN 22 1992

No. 91-1076 |

= . we Whe

In The

Supreme Court of the United States

October Term, 1991

¢

LONG BEACH EQUITIES, INC.,

Petitioner,

V.

COUNTY OF VENTURA, CALIFORNIA,

and CITY OF SIMI VALLEY, CALIFORNIA,

Respondents.

¢

Petition for Writ of Certiorari

to the California Court of Appeal, Second

Appellate District, Division Six

¢

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONER,

LONG BEACH EQUITIES, INC.

¢

RONALD A. ZUMBRUN

*EDwAarD J. CONNOR, JR.

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

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

OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

TAGLE OF AUTHORITIES CITED.................. ii

INTEREST OF AMICUS CURIAE .................. 1

PEPER MES WO SERIE PMs keep cents ese ens 3

REASONS FOR GRANTING WRIT................. a

SUSIMEVEURIR EE GPE AUTRADAIIOIIW D6 05 cc ete eens 5

Er re er er re ree tere ee 8

I. THE COURT BELOW HOPELESSLY CONFUSED

THIS COURT’S TAKINGS DOCTRINE. .......... 8

II. CALIFORNIA’S HARSH VESTED RIGHTS RULE

CANNOT BE GRAFTED ON TO THIS COURT'S

REASONABLE EXPECTATION RULE ........... 13

III. THE OPINION BELOW REFLECTS THE

NATIONAL CONFUSION OVER THIS

COURT’S RIPENESS REQUIREMENT7TS........ 14

CE ecu ce iy eee ela es kee ee 18

il

TABLE OF AUTHORITIES CITED

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980)..... 11,

Avco Community Developers, Inc. v. South Coast

Regional Commission, 17 Cal. 3d 785 (1976) ......

Armstrong v. United States, 364 U.S. 40 (1960)... .6,

First English Evangelical Lutheran Church of

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

oj Per Prret rrr erry cr, A 2%,

Hodel v. Irving, 481 U.S. 704 (1987)............... 2,

Kaiser Aetna v. United States, 444 U.S. 164

CROFT SD a sve oe dab b5)080k4 eee 7; 3m

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ............... Z

McDougal v. County of Imperial, 942 F.2d 668

(Sth Lie 1999)... 6. ave censtecee ers eee ees

MacDonald, Sommer & Frates v. County of Yolo,

477 US. SOD CICS) wick. occa eee 14, 15,

Monongahela Navigation Co. v. United States,

146 U5. 392 GORD) ides 5555 ee ee

Nectow v. City of Cambridge, 277 U.S. 185 (1928) ....

Nollan v. California Coastal Commission, 483 U.S.

B25 (3967) . goa kts nee 2 oe Oh, te

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

t? ¢ 4 pene ee oes oe AIA

Penn Central Transportation Corp. v. City of New

York, 458 U.S. 106 (2976) oo cavers 7, 9, 1, 11,

12

13

ili

TABLE OF AUTHORITIES CITED—Continued

Page

Pumpelly v. Green Bay & Mississippi Canal Co.,

NN sg 6 ooo 5k as a em edo nw eens dane 9

Ruckelshaus v. Monsanto Co., 467 U.S. 986

SNE rs we w.0v-4% 0 Cte Peee err errr rrre Te Bhs tay ta 36

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

as oa 0:5 Wb no bb assesses eekua xs 9

Williamson County Regional Planning Commis-

sion v. Hamilton Bank of Johnson City, 473 U.S.

eee eee ie wa yews 's hee 658d us'un cA Kaas es 14

RULES

I is ra os Cine Sh cada denaleees 1

Unitep States CONSTITUTION

i | ae 2. ©, @ 9, 16 is

De es 2,9

No. 91-1076

®

In The

Supreme Court of the United States

October Term, 1991

Y)

LONG BEACH EQUITIES, INC.,

Petitioner,

COUNTY OF VENTURA, CALIFORNIA,

and CITY OF SIMI VALLEY, CALIFORNIA,

Respondents.

¢

Petition for Writ of Certiorari

to the California Court of Appeal, Second

Appellate District, Division Six

¢

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONER,

LONG BEACH EQUITIES, INC.

*

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus

curiae in support of petitioner, Long Beach Equities, Inc.

Written consent to the filing of this brief has been granted

by counsel for all parties. Copies have been lodged with

the Clerk of the Court.

PLF is a nonprofit, tax-exempt corporation organized

under the laws of the State of California for the purpose

of engaging in litigation in matters affecting the public

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

concerned citizens, the majority of whom are attorneys.

PLF’s Board evaluates the merits of any contemplated

legal action and authorizes such legal action only when

the Foundation’s position has broad support within the

general community. PLF’s Board has authorized PLF par-

ticipation in this case.

Amicus seeks here to augment the argument in the

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

public policy perspective and litigation experience in

support of private property rights will provide an addi-

tional viewpoint with respect to the constitutional issues

presented. PLF has participated in numerous cases

involving issues arising under the Takings Clause of the

Fifth and Fourteenth Amendments to the United States

Constitution. Its attorneys were counsel of record in

Nollan v. California Coastal Commission, 483 U.S. 825 (1987),

and PLF participated as amicus curiae in Keystone Bi-

tuminous Coal Association v. DeBenedictis, 480 U.S. 470

(1987); Hodel v. Irving, 481 U.S. 704 (1987); and First

English Evangelical Lutheran Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987).

Amicus believes that the present case provides an

excellent opportunity for this Court to provide some

needed answers on the question of when land use regula-

tion goes so far as to result in a taking. This case demon-

strates particularly egregious conduct by local officials.

And, in the future, such conduct can be assured in Cali-

fornia if the views of the California Court of Appeal are

allowed to stand. The opinion below not only seriously

erodes the constitutional concept of property rights, but it

also drastically departs from the direction and reasoning

employed by this Court in prior cases interpreting the

Takings Clause.

STATEMENT OF THE CASE

This case involves a 180 degree turnabout in official

actions regarding the residential development of a

250 acre parcel of property in Ventura County, California.

Despite huge expenditures, including infrastructure costs

incurred in reliance on official assurances, development

of the property has been rendered economically infeasible

by a series of regulatory actions undertaken by the local

public agencies.

REASONS FOR GRANTING WRIT

Although this Court’s willingness to now address

takings issues in other factual settings is most welcome,

there is continuing great need for this Court to consider

the takings implications of zoning and other regulatory

actions designed to alter residential development densi-

ties, or to downzone against residential development, in

order to achieve land conservation or no-growth objec-

tives. A major question presented is: How far can govern-

mental officials go in depriving a property owner of

values predicated on official assurances after these offi-

cials change their minds and decide that open space and

growth control objectives should be emphasized?

For example, where, based on development assur-

ances of officials, infrastructure is developed to support

the construction of a large number of homes on a parcel

of land, can government officials then decide that they

want to preserve the property for open space and thereby

change the zoning to reflect the latter use? Also—can

government officials achieve this objective indirectly by a

series of moratoria restrictions, or by the employment of

other mechanisms, the practical effect of which is to make

any development of the property economically infeas-

ible? And if government cannot safely do these things,

can it achieve the same result by downzoning actions

which allow only some very limited use of the property—

such as the development of one home on many acres of

property?

This Court’s views on such issues are urgently

needed. The location of development needed to provide

affordable housing stock, and the capital formation neces-

sary thereto, may depend considerably on this Court's

view. At present there is chaos. Both government officials

and developers of housing stock are in the dark about

what can be done. Takings law is interpreted differently

in different jurisdictions and this only makes the real

word problems of providing needed housing all the more

difficult and uncertain.

The building industry in the State of California has to

be gravely concerned with what it reads in the decision

by the California Court of Appeal below. Those investing

their time, moneys, and energies in the development of

housing stock are now in effect being told that dealing

with local officials is like swimming in a shark tank—-

there are no constitutional protections and one had better

be prepared to be eaten alive at any time.

The development of case law such as that below

necessarily affects this nation’s ability to provide needed

affordable housing stock. And the uncertainties inherent

in the present situation can only drive up the price of

housing making it far less affordable for those who need

it.

The present case provides this Court an excellent

vehicle for addressing issues which cry out for some

sensible resolution. This Court has never adopted a

“shark tank” approach to its interpretation of the Takings

Clause and it is in the public interest that this Court now

speak to the issues.

SUMMARY OF ARGUMENT

While amicus agrees wholeheartedly with the peti-

tioner’s plea for this Court to clarify matters by further

development of the law regarding regulatory takings,

there is, at the same time, an equally great need for the

Court to at least address the misuse of what it has already

said. The opinion below well-illustrates such misuse.

The court below commenced its discussion of takings

law with the following statement:

“To state a cause of action for inverse con-

demnation, LBE must plead facts which show

either that: (1) the application of the general

zoning laws to its property does not substan-

tially advance a legitimate state interest; or

(2) such laws deprive it of substantially all eco-

nomically viable use of its lands.” Petition,

Appendix C at 10 (emphasis added).

As will be shown, in so doing, the court below has

taken two bright-line tests which always yield a takings

result where the required showing is made and has con-

verted them to a rule which says that a taking never

results if government actions survive these tests.

In pursuing such an unwarranted approach, the court

below overlooks the fact that this Court’s interpretation

of the Takings Clause has been based on much broader

considerations. This Court has uniformly analyzed tak-

ings issues in light of the overall purpose of the Fifth

Amendment's Takings Clause which “was designed to

bar Government from forcing some people alone to bear

public burdens which, in all fairness and justice, should

be borne by the public as a whole.” Armstrong v. United

States, 364 U.S. 40, 49 (1960).

The analysis by the court below is further exacer-

bated by that court’s willingness to presume that govern-

ment regulations are well-motivated and will serve their

avowed purpose. By engaging in such deference to local

regulatory actions, the court below not only side-steps

the kind of examination required by this Court in

Nollan v. California Coastal Commission, 483 U.S. at 834 n.3,

but it reduces the takings issue to a question of whether

the landowner has been deprived of substantially all

economically viable use of his land. Thus the court below

reasons that “it is constitutional to restrict the use of

one’s land” simply because “the public benefits greatly.”

Petition, Appendix C at 10. The court goes on to say that

in some cases, “no compensation may be required even if

almost all uses are taken.” /d.

With this basic approach to the problem, the court

below was then quick to conclude that the takings issue

was not ripe because it found, as a matter of law, that the

regulatory devices employed did not necessarily result in

any such land use devastation. This was done without

permitting petitioner to factually establish that any fur-

ther attempts to obtain approvals to put the property to

some productive and economically feasible use would

have been outright rejected and hopelessly futile. The

mechanical approach taken by the court below has

stretched this Court’s ripeness requirement far beyond its

intended purpose.

Lastly, although the court below recognized this

Court’s prior pronouncements regarding “frustration of

reasonable investment-backed expectations” (e.g., Kaiser

Aetna v. United States, 444 U.S. 164 (1979); Ruckelshaus v.

Monsanto Company, 467 U.S. 986 (1984); and Penn Central

Transportation Corp. v. City of New York, 438 U.S. 104

(1978)), the court nevertheless stripped this federal tak-

ings issue of all vitality by concluding that property

owners, in California, can never have a reasonable expec-

tation of developing their property until they have satis-

fied California’s harsh “vested rights” rule. As the court

below pointed out, such a vested right does not accrue

until one obtains a final building permit. Under this view,

government officials can lead property owners down the

garden path, all along assuring them that the passageway

is perfectly safe, and can then abruptly push them over

the brink of a cliff unless they have reached safety at the

path’s end.

As will be shown, California’s vested rights rule has

nothing whatever to do with this Court’s pronounce-

ments on the subject of reasonable investment-backed

expectations.

ARGUMENT

I

THE COURT BELOW

HOPELESSLY CONFUSED THIS

COURT’S TAKINGS DOCTRINE

As this Court’s prior decisions demonstrate, it is no

answer to say that government pursues some legitimate

interest. See, e.g., First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 U.S. at 314-15

(Fifth Amendment is not designed to limit government

interference but rather to secure compensation “in the

event of otherwise proper interference”); see also McDou-

gal v. County of Imperial, 942 F.2d 668, 676-77 (9th Cir.

1991) (legitimate public interest is not a trump card).

Usually government actions do pursue some legiti-

mate government interest. But a question can still remain

as to whether the legitimate pursuit of government goals

nevertheless results in a taking requiring compensation.

Under Nollan, a taking will assuredly occur if a regulation

does not substantially advance legitimate government

interests—but this does not mean that a taking will not

occur if it does. There are still other factors to be consid-

ered under this Court’s takings doctrine.

The purpose of the Takings Clause has always been

to protect and secure the rights of the individual against

the government.! Pumpelly v. Green Bay & Mississippi

Canal Co., 80 U.S. 166, 177 (1872).

In 1922, this Court held that regulatory conduct can

be challenged as a taking under the Takings Clause. Penn-

sylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). The Court

there explained:

“The general rule, at least, is that while property

may be regulated to a certain extent, if regula-

tion goes too far it will be recognized as a tak-

ing.” Id. at 415.

While the Court spoke of the Fifth Amendment’s

Takings Clause as a “seemingly absolute protection,” the

Court nevertheless recognized that it was qualified by

“the police power.” Id. Given this qualification, the Court

also observed that “the natural tendency of human nature

is to extend the qualification more and more until at last

private property disappears.” Id.

This case demonstrates the accuracy of the Court’s

observation.

Although this Court has in more recent time referred

to its Pennsylvania Coal regulatory takings analysis as

“established doctrine” (First Church, 482 U.S. at 316), this

Court has also recognized that the question of what con-

stitutes a regulatory taking “has proved to be a problem

of considerable difficulty.” Penn Central, 438 U.S. at 123.

1 The Fifth Amendment applies to the state through the Four-

teenth Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beck-

with, 449 U.S. 155, 160 (1980).

10

What has always been clear, however, is that the

takings issue is to be considered in light of the guiding

principle that the Fifth Amendment’s Takings Clause

“was designed to bar Government from forcing some

people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole.”

Armstrong v. United States, 364 U.S. at 48.

In First Church, this Court referred to this principle as

“axiomatic.” 482 U.S. at 318.

In Penn Central, the Court said that it had been

“unable to develop any ‘set formula’ for determining

when ‘justice and fairness’ require that economic injuries

caused by public action be compensated by the govern-

ment, rather than remain disproportionately concentrated

on a few persons.” 438 U.S. at 124.

The Court, in Penn Central, nevertheless “identified

several factors that have particular significance.” Id. The

Court specifically pointed to:

1. “the character of the governmental

action,”

2. the “economic ithpact of the regula-

tion,” and

3. “the extent to which the regulation has

interfered with distinct investment-backed

expectations.” Id.

These factors have never been held to be exclusive.

They are merely means for analyzing the question of

whether, in a given factual situation, the regulation goes

too far. In other words, such factors assist in determining

whether the regulation is, in reality, an attempt to load

11

“upon one individual more than his just share of the

burdens of government.” See Keystone, 480 U.S. at 512

(Rehnquist, C.J., dissenting) (citing Monongahela Naviga-

tion Co. v. United States, 148 U.S. 312, 325 (1893)).

As stated in Agins v. City of Tiburon, 447 U.S. 255, 260

(1980):

“The determination that governmental action

constitutes a taking is, in essence, a determina-

tion that the public at large, rather than a single

owner, must bear the burden of an exercise of

state power in the public interest.”

This Court’s application of the Penn Central factors

shows that if the force of any one is sufficiently strong, it

alone will dispose of the takings question. Monsanto,

467 U.S. at 1005 (force of reasonable investment-backed

expectation factor “so overwhelming” as to dispose of the

taking question).

As a consequence of this Court’s approach in resolv-

ing takings issues, two bright-line tests have evolved

from the generalized considerations spelled out in Penn

Central which weigh so heavily in favor of a takings

conclusion that when either one occurs, it must be said

that the regulation goes “too far” and that “fairness and

justice” require the finding of a taking.

The first is where the character of the governmental

action is such that it fails to substantially advance a

legitimate government interest. Nollan illustrates this

bright-line test and a taking was found despite the fact

the property owners were left with reasonable use of

their property. Indeed, the California court in Nollan had

stressed this remaining use as a basis for its no taking

12

conclusion. This treatment of the case by the lower court

was expressly acknowledged by this Court in its opin-

ion.?

The second bright-line test recognizes a taking wher-

ever the economic impact of the government regulation

actually is so severe as to deny an owner economically

viable use of the property. Hodel v. Irving, 481 U.S. 704,

illustrates this test. There the regulation amounted “to

virtually the abrogation of the right to pass on a certain

type of property .. . to one’s heirs.” Id. at 716.

In Agins, this Court made it clear that either finding

alone would result in a taking. The Court summarized

the rule in the disjunctive as follows:

“The application of a general zoning law to

particular property effects a taking if the ordi-

nance does not substantially advance legitimate

state interests ... or denies an owner economi-

cally viable use of his land.” Agins, 447 U‘S.

at 260.

Of course, it follows that even though government

regulation may survive these bright-line tests, this does

not end the inquiry. The character of the government

action is still relevant. So also is the regulation’s eco-

nomic impact on the property. And, as noted above, this

Court has given particular attention to interference with

reasonable investment-backed expectations. Kaiser

Aetna v. United States, 444 U.S. 164; Ruckelshaus v.

2 “It [the California court] ruled that the Nollans’ taking claim

also failed because, although the condition diminished the

value of the Nollans’ lot, it did not deprive them of all reason-

able use of their property.” Nollan, 482 U.S. at 830.

13

Monsanto Company, 467 U.S. 986; and Penn Central Trans-

portation Corp. v. City of New York, 438 U.S. 104.

Obviously, the lower court’s analysis is confused and

it is precisely this kind of confusion which should be

addressed by this Court.

II

CALIFORNIA’S HARSH VESTED

RIGHTS RULE CANNOT BE

GRAFTED ON TO THIS COURT’S

REASONABLE EXPECTATION RULE

Although the court below gives lip service to this

Court’s reasonable investment-backed expectation rule, it

holds that this theory cannot be pursued unless the prop-

erty owner has acquired a “vested right” to proceed with

the final phase of construction under California law. The

court below has thus grafted on to this Court’s analysis

an additional requirement that the vesting rules adopted

by the California Supreme Court in Avco Community

Developers, Inc. v. South Coast Regional Commission, 17 Cal.

3d 785 (1976), be first satisfied. But, as the court below

recognized, that case not only requires substantial expen-

ditures but also requires that one obtain a final building

permit.

California’s vested rights doctrine is grounded on the

principle of equitable estoppel, not on the Fifth Amend-

ment’s Takings Clause. To say that one cannot have a

reasonable investment-backed expectation until the Cali-

fornia doctrine is met is the equivalent of throwing out

the federal rule in its entirety. Frustration of expectations

becomes moot when one has a permit in hand. This Court

14

has never hinted that its rule is limited to the kind of

proofs required by the court below. Indeed, as this Court

pointed out in Kaiser Aetna, although the actions of indi-

vidual officials representing a governmental agency may

not “estop” the government from pursuing its action,

such conduct “can lead to the fruition of a number of

expectancies embodied in the concept of ‘property.’ ” Id.

at 179.

Ill

THE OPINION BELOW REFLECTS

THE NATIONAL CONFUSION OVER THIS

COURT’S RIPENESS REQUIREMENTS

This amicus strongly endorses petitioner’s views

regarding the need to address the hopeless confusion that

has resulted from this Court’s ripeness requirements and,

in particular, its decisions in Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985), and MacDonald, Sommer & Frates v.

County of Yolo, 477 U.S. 340 (1986).

What was intended as a rule of practical application,

designed to ensure that a claim is not premature, has

resulted in a bureaucratic nightmare involving tactics

regularly employed to “defense” all takings claims as not

ripe. As a consequence, regulatory victims are being

deprived of any effective judicial remedy. The opinion

below well illustrates the problem and affords this Court

an excellent opportunity to address it.

The court below relied heavily on this Court’s state-

ment in MacDonald, Sommer:

15

“A court cannot determine whether a regulation

has gone ‘too far’ unless it knows how far the

regulation goes.” 477 U.S. at 348.

The court below reasoned:

“Denial of approvals for a particular and rela-

tively intensive residential development, as

here, cannot be equated with a refusal to permit

any beneficial use whatsoever.” Petition,

Appendix C at 17.

But here, the case pleaded is that final decisions have

been made. Although opportunity may always exist to

file further applications, where the facts alleged show an

absolute unwillingness to consider such applications, and

where it is known that they will not be processed, finality

is achieved.

It is submitted that this Court never intended its

ripeness requirements, designed to protect against pre-

mature claims, to be used as a device for requiring futile

actions.

But even if it were otherwise, this Court’s ripeness

rules still cannot be extended to the present type of case

for yet other reasons. The rule cannot logically be applied

in any Case:

1. where takings factors other than impact on use

are involved (such as failure to substantially advance

legitimate government interests or frustration of reason-

able investment-backed expectations) and the property

owner seeks to show that these factors are sufficient to

prove a takings claim regardless of remaining uses, or

16

2. where the property owner seeks to show that no

lesser use, even if approved, would be economically feas-

ible.

In the first situation, a taking can result despite

remaining economic uses. And where the required proof

is made, knowing the degree of economic impairment is

unnecessary. For example, where a plaintiff can suffi-

ciently demonstrate interference with reasonable invest-

ment-backed expectations, a taking will be shown. And

this result will follow even absent, as stated by the court

below, “a refusal to permit any beneficial use what-

soever.” The reasonable expectation rule would be ren-

dered sheer surplusage if in every case a property owner

had to show denial of all economically viable use. As

noted, this Court in Monsanto, 467 U.S. 986, found the

reasonable expectation factor to be “overwhelming” (id.

at 1005) and remaining usefulness to Monsanto “irrele-

vant” (id. at 1012).

Likewise, deprivation of use is not an essential ingre-

dient where, as here, it is claimed that regulatory action

fails to substantially advance a legitimate government

interest. Such proof, by itself, can support a taking con-

clusion regardless of economic impact. Nollan, 483 U.S.

825, is a good example. As Nollan demonstrates——one

need not know what beneficial uses remain where it is

not necessary to know what beneficial uses remain in

order to find a taking.

In the second situation set forth above, it is only

reasonable to allow a property owner to show that, even

if applications for lesser uses could be pursued, and even

17

if such uses might be allowed, such uses would be eco-

nomically infeasible. Surely, this Court, in its earlier ripe-

ness cases, did not intend to impose a requirement that

applications be processed for uses which cannot economi-

cally be pursued.

In short, ripeness requirements should not be

mechanically imposed in situations where they serve no

purpose. They are inappropriate in any case where a

property owner is seeking to pursue factually a claim that

his constitutional rights have been invaded regardless of

whether other uses might be allowed. Accordingly, the

MacDonald, Sommer finality ripeness requirement should

be limited to cases where a property owner’s claim is

dependent on proving deprivation of use and it is neces-

sary to know whether other uses may be allowed in order

to decide the case.

It also follows that where, as here, one seeks to show

factually that regulatory action does not substantially

advance legitimate public interests, or that reasonable

investment-backed expectations have been frustrated,

such matters cannot be resolved as a matter of law. Even

in a due process setting, the question of whether regula-

tory actions legitimately pursue governmental goals can

involve factual questions which require a fact-finding

type judicial inquiry. See, e.g., Nectow v. City of Cambridge,

277 U.S. 185 (1928).

18

CONCLUSION

For the reasons stated above, amicus respectfully

‘equests that this Court grant the petition for certiorari.

DATED: January, 1992.

Respectfully submitted,

Ron«tp A. ZUMBRUN

*EpwarpD J. CoNNoRr, JR.

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation