Amicus Curiae Brief — Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City

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Office - Su

In the Supreme Co FILED

ALEXANDER u STtvas

Ocroprr TERM, 1984 CLERK

7 ag

WiuraMson County Recionat PLtanninc Commission, et al.,

Petitioners,

Vs.

Hami.ton Bank or JoHnson City,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

Amici Curiae Brief of State of California ex rel. John K.

Van de Kamp, Attorney General and California Coastal

Commission, the Tahoe Regional Planning Agency, the

States of Alaska, Florida, Iowa, Massachusetts,

Minnesota, Nebraska, Nevada, New Hampshire,

North Carolina, Oklahoma, South Dakota,

Utah, Vermont, Wisconsin, Wyoming,

and the Terri of American Samoa.

Rist Ree

Attorney General

Ricuarp C, Jacoss

Special Counsel

N. Grecory TayLor

THEopoRA BERGER

Assistant Attorneys General

Craic C. THompson

Ricuarp M. F’Ranx

Counsel of Record

Deputy Attorneys General

1515 K Street, Suite 511

Sacramento, California 95814

(916) 324-5497

Attorneys for Amici State of California ex rel. John K.

Van de Kamp, Attorney General and Califurnia Coastal

Commission, and the Tahoe Regional Planning Commis-

sion

(Continued on inside front cover)

BOWNE OF SAN FRANCISCO, INC. © 190 NINTH ST. ¢ S.F., CA 94103 © (415) 864-2300 43 pg?

Norman C. GorsucH

Attorney General

State of Alaska

Jim SMITH

Attorney General

State of Florida

Tuomas J. MILuER

Attorney General

State of Iowa

Francis X. BeLLorri

Attorney General

State of Massachusets

Housert H. Humpseey IIT

Attorney General

State of Minnesota

Pavut L. Dove tas

Attorney General

State of Nebraska

Brian McKay

Attorney General

Grorce V. Postrozny

Deputy Attorney General

State of Nevada

Grecory H. Smrrx

Attorney General

State of New Hampshire

Rvurvs L. Epmisten

Attorney General

State of North Carolina

MicHaEL TURPEN

Attorney General

Rosert L. McDonatp

First Assistant Attorney

General

state of Oklahoma

Mark V. MererHENRY

Attorney General

State of South Dakota

Davin L. WiLK1nson

Attorney General

Dauuis W. JENSEN

Solicitor General

State of Utah

Joun J. Easton

Attorney General

State of Vermont

Bronson C. La Fouuerre

Attorney General

State of Wisconsin

Arcurs G. McCurtock

Attorney General

State of Wyoming

Aviata F Fa’ ALEvao

Attorney General

American Samoa

QUESTIONS PRESENTED

1. Where a land use regulatory measure enacted pur-

suant to the police power comes into conflict with

property rights protected by the Fifth and Fourteenth

Amendments, does a judicial decree remanding the matter

to the regulatory body for appropriate corrective action

constitute the appropriate remedy or does the Constitution

compel forced purchase?

2. Can a taking be demonstrated a) by examining a

portion of a unified land development project in isolation

from the overall development; and b) based solely on #

showing that the developer may be unable to realize a

profit on each phase of the development, without reference

to the developer’s reasonable, investment-backed expecta-

tions concerning the project as a whole?

‘i

TABLE OF CONTENTS

ee I ui icicsciissiicnbnaisacindessiictanel A badetediniartecattabe

A LL aI

If a regulatory measure is found to constitute 2 taking

of property because of its effect on a particular prop-

erty owner, the appropriate remedy is to remand the

matter to the governmental entity for appropriate

corrective action; judicially forced purchase of the

property is neither mandated nor warranted ............

A. The court’s prior decisions do not support the

assertion that a monetary remedy is compelled

for a regulatory action which constitutes a tak-

DUD schisciciicetnsspicsidesinsanitsaniacnalbienicihabdaalicteniaes aire tears

B. Remanding a regulatory measure which consti-

tutes a taking of property is an effective and

Se ET tniicilieniinteiininsiilntepitinideeitasiaining

C. A compelled damages remedy for a regulatory

action which constitutes a taking contravenes

several important public policies warranting a

more flexible approach .... ws

1. Damages are an inefficient remedy in most

cases involving a taking arising out of regu-

latory conduct .

2. A compelled monetary remedy for a regu-

latory action which constitutes a taking is

inappropriate and would effectively trans-

fer the power of eminent domain from legis-

latures to the judiciary, and is therefor in-

consistent with the separation of powers

doctrine ............. Rpsensne |

ili

TaBLE oF CONTENTS

3. Adoption of the rule suggested by respon-

dent would result in major additional fiscal

problems for state and local government ....

4. The compelled payment of damages as the

remedy in land use eases will have a chilling

effect on the exercise of necessary govern-

D. Recent decisions of this court involving constitu-

tional torts by government officials and 42 U.S.C.

§ 1983 suggest federal deference to available

state remedies; land use regulation is perhaps

the classic example of “Special Circumstances

Counseling Hesitation” where money damages

would be inappropriate —.................-....--.0--s-e+-e0-0

“Interim damages” are not required to compen-

sate landowners for “temporary” takings. Judi-

cial remand to the affected agency, coupled with

effective court oversight, affords a fully suffi-

CE CI ncccenecngeptnttencnctntnmnnameenmmnaan

No taking has been shown to have occurred in this case

A. The courts below inappropriately chose to con-

sider only the portion of the development owned

by respondent, rather than the integrated proj-

ect as a whole, in determining whether a taking

Ge GEE. cetesteentpeennnetinen

The court of appeals erroneously determined

that the ordinances in question were required to

ensure a profitable use of respondent’s property

OE Cee OT Ae ee

TABLE OF AUTHORITIES CITED

Cases

Page

Abood v. Detroit Board of Education, 431 U.S. 209

EITIIUTD - cacsonmecnitidhenentaatinnieinndsaimmtiiaaenasiai 20

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

372 (1979), aff’d. on other grds, 447 U.S. 255

GED scatemnsiniecnentinniminnammmaal 6, 13, 16, 17, 22, 24

Allen v. City & County of Honolulu, 58 Hawaii 432, 571

2 Ff: | ae 6,18

Andrus v. Allard, 444 U.S. 51 (1979) 200-222... 26

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1977) ................ 20, 21

Burford v. Sun Oil Co., 319 U.S. 315 (1943) 0.002... 15

Carlson v. Green, 446 U.S. 14 (1980) 22 eee eee 21

CEEED v. California Coastal Zone Conservation Com-

mission, 43 Cal.App.3d 306, 118 Cal.Rptr. 315 (1974)

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

ED ic ey. CITED eistnisininnnsinmnengueiochttiutnglinnctnadence °18

Citadel Corp. v. Puerto Rico Highway Authority, 695

F.2d 31 (ist Cir. 1982) aiieitidinenal 15

City of Beaumont v. Beaumont Irrigation District, 63

Cal.2d 291, 46 Cal. Rptr. 465 (1965) 022. 14

City of Newport v. Fact Concerts, Inc., 453 U.S. 247

TUITE didssechtbieneeniniininnsiaasittnndh 25

C-Y Development Co. v. City of Redlands, 703 F.2d 375

ER ee ee we 15

Davis v. Passman, 442 U.S. 228 (1979) —...00... 21

Davis v. Pima County, 121 Ariz. 343, 590 P.2d 459

(1978) cert. denied 442 U.S. 942 (1979) 00. 6

DeMello v. Town of Plainville, 170 Conn. 675, 368 A.2d

Tee CEs RIND © cechiaeisithcctihititaitcdilit ii ieee. 6

TaBLE OF AUTHORITIES CITED

CasEs

Page

Donohue Construction Co., Inc. v. Montgomery Co.,

567 F.2d 603 (4th Cir. 1977) ...... iiislabiiipeleniaidiane 23

Eck v. City of Bismarck, 283 N.W.2d 193 (N.D. 1979)... 6

Ed Zaagman, Inc. v. City of Kentwood, 406 Mich. 137,

277 N.W.2d 475 (1979) in

Euclid v. Ambler Realty Co., 272 U.S. 365 (1927) ...... 1

Fifth Ave. Corp. v. Washington County, 282 Or. 591,

581 P.2d 50 (1972) ..................-..-s--0-0-- 6

Fred F. French Invest. Co. v. City of New 7 York, 39

N.Y.2d 58, 350 N.E.2d 381, 385 N.Y. Supp.2d 5,

(1976) app. dism., 429 U.S. 990 (1977) 6, 12

Furey v. City of Sacramento, 24 Cal.3d 862, 157 Cal.

Rptr. 684 (1979), cert. denied 444 U.S. 976 (1979)......9, 10

Gaeble v. Thornbury Township, 8 Pa. Commw. 399

A.2d 57 (1973) sitibbieeaiiielidalsieciesinnnitadliiantameeciastiiiaeticees 6

Gold Run, Ltd. v. Board of County Comm’rs, 38 Colo.

App. 44, 554 P.2d 317 (1976) 222....ecceeeeeeeeeseseceeeeeneees 6

Gorieb v. Fox, 274 U.S. 603 (1927) ...... - 26

Hamilton Bank of Johnson City v. Williamson iets

Regional Planning Commission, 729 F.2d 402 (6th

Cir. 1984) 24, 25, 27

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .......... 17, 23, 24

Hernandez v. City of Lafayette, 643 F.2d 1188, 1200-

1201 (5th Cir. 1981) cert. denied 455 U.S. 907 (1982)

10, 22, 23

HFH, Ltd. v. Superior Court, 15 Cal.3d 508, 125 Cal.

EE 10, 22

Hodel v. Virginia Surface Mining & Reclamation Asso-

ciation, 452 U.S. 264 (1981) ........... 25

TaBLE OF AUTHORITIES CITED

CasEs

Page

Holaway v. City of waenaniend 269 N.W.2d 28 (Minn.

Hurley v. Kincaid, 285 U.S. 95, 104 (1982) sniidiediiinaiaiatidti 7

Jacobson v. Tahoe Regional Planning Agency, 474

F.Supp. 901 (D.Nev. 1979), aff’d. on other grds., 661

F.2d 940 (9th Cir. 1981) -......0.2222.....2......- 13, 15, 16, 21

Jones v. People ex rel. Dept. of Transportation, 22 Cal.

3d 144 Cal.Rptr. 640 (1978) 22... eeeeeceeeeeeeeceeeeee ene eees 10

Lake Country Estates, Inc. v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979) 2.22.22... .eeeeeseeeenoreceeoe = 2,17

Liberty v. California Coastal Commission, 113 Cal.

App.3d 491, 500-504, 170 Cal.Rptr. 247 (1980) ............ 10

Loretto v. Teleprompter Manhattan CATV Corp., 458

a I tianlian idsiemmeeniiaiitetn 25

McShane v. City of Faribault, 292 N.W.2d 253 (Minn.

STII. chcticsctheeniibceicindaicmeiee etait aiaeatiecasinietantsiariiaiatitendiel 6

Mailman Dev. Corp. v. City of Hollywood, 286 So. 2d

ee rs GR, TI ccnetternetnennineneniinennmin 6

Miller v. Board of Public Works, 195 Cal. 477, 234 P.

381 (1925), cert. denied 273 U.S. 781 (1927) -.............. 23

Miranda v. Arizona, 384 U.S. 436 (1966) —.........000......... 20

National League of Cities v. Usery, 426 U.S. 833 (1976) 16

NBH Land Co. v. United States, 576 F.2d 317 (Ct. Cl.

FRE Ge ET

New York Times v. Sullivan, 376 U.S. 254 (1964) -...... 23

Owen v. City of Independence, 445 U.S. 622 (1980)... 20

Pamel Corp. v. Puerto Rico Highway Authority, 621

F.2d 33 (1st Cir. 1980) —............... ae; 6, 15, 21

Vii

TaBLe oF AUTHORITIES CITED

CasEs

Parratt v. Taylor, 45i U.S. 52/ (1981) —..2.-

Penn Central Transportation Co. v. City of New York,

438 U.S. 104 (1978) ” 7, 25, 26

Pennhurst State School and Hospital v. Halderman., ......

5 a | fs | enn 15

Pusies v. . Qaeties Court, 10 Cal.2d 288, 73 P.2d 1221

ce ae 14

San Diego Gas & Electric Co. v. City of San ies, 450

SE SEE coaichindersisitacecneensiisnnscinitinneningnprmesaniia 5, 10, 21, 23

San Diego Land & Town Co. v. Neale, 78 Cal. 80, 20

P. 380 (1888) ..................

Smoke Rise, Inc. v. Washington iain Sanitary

Comm., 400 F.Supp. 1369 (D. Md. 1975) -..................... 23

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, E.D.Cal. Case No. CIV-S-84-0816-

SUITE -ssteienietndidintnnintantenpiatratenenamennences Te i ve 16

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, D.Nev. Case No. CV-R-84-257-

ie I en Ali eto SAR a ve 16

Tenney v. Branhove, 341 U.S. 367 (1951) —.......000020....... 19

Toso v. City of Santa Barbara, 101 Cal.App.3d 934, 162

RR CE 10

Trustee Under Wills, ete. v. Town of Westlake, 357

gE 6

United States v. Causby, 308 U.S. 25€ (1946) 0.000... 7

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

EE a ee 7

United States v. Clarke, 445 U.S. 253 (1980) —.....0....... 7

United States v. Dow, 357 17 (1958) -.............. Seessiaiipetigan 7

United States v. Lynah, 188 U.S. 445 (1903) ........... powes 7

United States v. Powelson, 319 U.S. 266 (1943) .......... 12

viii

TaBLeE or AUTHORITIES CITED

Constit. ion

United States Canstiti ‘ion:

Fifth Amendment ’

TEL Ee

lee

Statutes

Calif. Code of Civil Procedure:

§ 1230.10 et seq. ......

Coastal Zone Management Act of 197 2 1 16 U.S.C. 1451

ff a incinensiihannciaettiiniatpiiseibicailecitabiAandeaiasiindaiin

Delaware Coastal Zone Act (7 Delaware Code, Chapter

TE cccntnicnecsintiabiniititetinnncciaihinetiatliiniininsamedsiaiitcamunicniebasnittis

Florida Land and Water iaiailiai Act. Fla. Stat.

Anno. (West) §§ 380.085(3) modeled on § 9-112 of

the American Law Institute’s Model Land Develop-

ee GRD CID cinch chitictcntninintiicaisessnncennisicntaanmmces

Mass. Gen. Laws C. 131, § 40A, and C. 130, $ 105 -...........

Tahoe Regional Planning Compact, P.L. 96-551, 94

Stat. 3233 ....

GD TI. © TI cece ccecscrseceenentntncnenerinnnemnsrornimceremecasiionsanannen,

Rule

Supreme Court Rule, Rule 36.4 -....

TasLe or AUTHORITIES CITED

Other Authorities

Page

Beuscher, Land Use Controls: Cases and Materials,

(3d ed. 1964) at 538-50 10

Bosseiman, Callies and Banta, The Taking Iss1.e (1975)

319 5

Clark and Kidman, The Relationships of Just Compen-

sciion to the Land Use Regulatory Power, 2 Pepper-

dine L. Rev. 79 (1975) bi io:

Comment, Inverse Condemnatior: Its Availability in

Challenging the Validity of a Zoning Ordinance, 26

Stanford L.R. 1439 (1974)

Cunningham, Inverse Condemnation as a Remedy for

“Regulatory Takings”, 8 Hastings Const. L.Q. 517

(1981)

Girard, Agins: A Step in the Right Direction, Land

Use L. & Zoning Dig. (September 1979) 2.000000... 10

Hagman and Misczynski, Windfalls for Wipeouts:

Land Value Capture and Compensation (1978) 256,

gee IS RR Sas a Ne A 4,5

Hill, Constitutional Remedies, 60 Colum. L. Rev. 1109,

1118 (1969) ..... 20

Magavern, T'he Evolution and Extension of the New

York Law of Inverse Condemnation, 24 Buff. L. Rev.

273 (1975) .... on

Mandelker, Land Use Takings, The Compensation

Issue, 8 Hastings Const. L.Q. 491, 504-512 (1981) .... 10

' Wright, Exclusionary Land Use Controls and the

Taking Issue, 8 Hastings Consi. L.Q. 545, 578-583

(1981) 10, 17

2 J. Sackman & P. Rohan, Nichols’ Law of Eminent

Doma § 6.13[3] (3d ed. 1979) ........

No. 84-4

In the Supreme Court

OF THE

United States

Octoser TERM, 1984

Wituiamson County Recronat PLannive Commission, et al.,

Petitioners,

vs.

Hami.ton Bank or Jonnson Ciry,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

Amici Curiae Brief of State of California ex rel. John K.

Van de Kamp, Attorney General and California Coastal

Commission, the Tahoe Regional Planning Agency, the

States of Alaska, Florida, Iowa, Massachusetts,

Minnesota, Nebraska, Nevada, New Hampshire,

North Carolina, Oklahoma, South Dakota,

Utah, Vermont, Wisconsin, Wyoming,

and the Territory of American Samoa.

Amici file this brief pursuant to Rule 36.4 of the Rules of

the Supreme Court of the United States.

INTEREST OF AMICI

This brief is respectfully submitted in support of peti-

tioner Williamson County Regional Planning Commission.

The seventeen states and territories which have joined as

amici in this case, together with their politicai subdivisions,

exercise regulatory power over the proposed use of land

and water resources within their respective jurisdictions.

Amici are charged with the delicate responsibility of bal-

ancing demands for growth and development against the

need to preserve finite natural resources located within

their borders. The nature of affected resources runs the

gamut from shoreline areas to urban communities, coastal

wetlands to rural farmlands. Proposed development proj-

ects that amici review on a regular basis are similarly

multifaceted: residential subdivisions, commercial centers,

recreational developments and coal mining projects are but

a partial list. The power of state, regional and local govern-

ments to control untoward development in light of resourve

and population constraints has been recognized for gener-

ations. (Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).)

In recent years, the need for amici to evolve planning

mechanisms to meet increased population pressures has

become apparent. California’s experience with Lake Tahoe

is illustrative. The Tahoe Regional Planning Agency was

created by California and Nevada and approved by Con-

gress following a general consensus that traditional land

use planning measures were inadequate to preserve the

unique Lake Tahoe Basin in the face of rapid growth. The

Agency, created in 1969 and modified in 1980 by interstate

compact (P.L. 91-148, 83 Stat. 360, amended by P.L. 96-551,

94 Stat. 3233.), is directed to adopt and administer a

regional plan which allows limited development while

recognizing and preserving Lake Tahoe’s exceptional

qualities.

T.R.P.A.’s actions to promote the protection of natural

resources have resulted in substantial litigation. Land-

owners have repeatedly charged that the effect is to have

inversely condemned their properties. (See, e.g., Lake

Country Estates, Inc. v. Tahoe Regional Planning Agency,

440 U.S. 391 (1979).)

This agency has, in recent years, been engaged in inverse

condemnation litigation in which the monetary claims

aggregate many millions of dollars. The ability of T.R.P.A.

to accomplish the mandates of Congress and amici States

of California and Nevada would be severely harmed if dam-

ages are found to be an available remedy in such cases.

This experience is by no means unique to amici T.R.P.A.

and the State of California. Other amici joining in this

brief administer similar programs and confront related

litigation on a continuing basis. The issues in this case are

thus of critical importance to them, and amici therefore

respectfully request that their contentions be considered

in this case.

SUMMARY OF ARGUMENT

1. Traditionally, federal and state courts confronted

with a regulatory measure that results in an unconstitu-

tional taking of property have found equitable relief rather

than damages to be the appropriate remedy. Consistent

with precedent, amici submit that where such a regulatory

taking exists, the preferable course is to remand the matter

to the affected administrative or legislative body for cor-

rective action under the continuing supervision of the trial

court. This remedy properly leaves to the agency the

decision to choose between acquisition of the property

through exercise of the condemnation power, invalidation

of the offending measure or other effective corrective

action.

Compelled payment of damages in such cases, on the

other hand, would have several unfortunate consequences.

First, damages are not nearly as efficient a remedy as

judicial remand. Second, imposition of the former remedy

would raise serious separation of powers questions by

forcing the judiciary to make de facto planning and bud-

getary decisions that have traditionally been left to other

branches of government. Third, requiring money damages

in the case of a regulatory taking carries the risk of

fiscal chaos for state and locai governments. Finally, such

a holding would have a major chilling effect on the land

use planning process, stifling attempts to fashion plan-

ning techniques made necessary by changing social cir-

cumstances.

Nor are damages required to cure a “temporary” taking.

Judicial remand to the governmental entity involved,

coupled with careful oversight and utilization by the courts

of traditional sanctions when necessary, is equally effective

and far less disruptive of the regulatory process.

2. No taking of respondent’s property has been demon-

strated in this case for two distinct reasons. First, in deter-

mining whether a taking had occurred, the Sixth Circuit

inappropriately considered only a portion of the entire

development rather than examining the uses which had

already been alluwed for the development as a whole. Sec-

ond, the Sixth Circuit inappropriately determined that a

taking had occurred based on nothing more than a deter-

mination that the developer would not make a profit on

the segment of the development under examination. Noth-

ing in the Constitution requires that developers be assured

a profit on each parcel of property they acquire.

ARGUMENT

IF A REGULATORY MEASURE IS FOUND TO

CONSTITUTE A TAKING OF PROPERTY BECAUSE

OF ITS EFFECT ON A PARTICULAR PROP-

ERTY OWNER, THE APPROPRIATE REMEDY IS

TO REMAND THE MATTER TO THE GOVERN.

MENTAL ENTITY FOR APPROPRIATE CORREC.-

TIVE ACTION; JUDICIALLY FORCED PURCHASE

OF THE PROPERTY IS NEITHER MANDATED NOR

WARRANTED

Amici submit that the record in this case, when applied

to the standards created by the Court, compels the con-

clusion that no unconstitutional taking of respondent’s

property occurred as a result of petitioner’s actions. (See

part II, below.) Yet even if an unlawful taking was

assumed to exist, established precedent and important con-

siderations of public policy dictate that compelled pay-

ment of money damages is an inappropriate remedy.

A. The Court’s Prior Decisions Do Not Support the

Assertion That a Monetary Remedy Is Compelled for a

Regulatory Action Which Constitutes a Taking

The theory that a land use regulatory measure might

result in a constitutionally compelled award of damages is

of recent origin:

“During the first part of this century, courts had

called harsh regulations takings, and, since no com-

pensation had been offered, the courts invalidated

them. It hardly occurred to anyone that if the regula-

tion was a taking, then a possible remedy was for the

property owner to sue in inverse condemnation... .

“Until the 1970s, no reported case recognizing inverse

condemnation for mere regulation could have been

cited.” (Hagman and Misczynski, Wimdfalls fur Wipe-

outs: Land Value Capture and Compensation (1978)

256, 272.)

Indeed, Professors Hagman and Misezynski assert that the

concept of compensable regulation was never even raised

until 1953. (Id. at 256.)

In fact, several notable property law experts, in a com-

prehensive historical analysis of the taking clause, con-

cluded that the clause was never intended to apply to

regulation of land at all, and that it derived only

“from the English nobles’ fear of the King’s seizures

of land for his own use .. . But the use of land was

being regulated—often very severely regulated—

throughout English and early American history. Only

around the turn of the Twentieth Century did judges

and legal scholars popularize the notion that if regula-

tion of the use of land became excessive, it could

amount to the equivalent of a taking.” (Bosselinan,

Callies and Banta, The Taking Issue (1973) 319."

Even those scholars who seemingly concur in the views

expressed in the dissent of Justice Brennan in San Diego

Gas @ Electric Co. v. City of San Diego, 450 U.S. 621,

636-661 (1981), acknowledge that the concept of a com-

pelled damages remedy represents a departure from estab-

lished law. (See, e.g., Cunningham, Jnverse Condemnation

as a Remedy for “Regulatory Takings”, 8 Hastings Const.

L.Q. 517 (1981): “The traditional recourse of landowners

and land developers whose plans for profitable develop-

ment of land are blocked by restrictive zoning or other land

use regulations is a suit to invalidate the regulations on

constitutional grounds.”)

“The exact motivation for the adoption of the taking clause may

never be ascertained, but a: least one thing is clear; the draftsmen

were not troubled by any issue involving regulation of the use of

land. Such regulations had been standard practice in England and

throughout colonial times and seem to have provoked no serious

controversy. There is no evidence that the founding fathers ever

conceived that the taking clause could establish any sort of restric-

tions on the power to regulate the use of land.” (Id. at 104.)

The conclusions of taboo scholars are buttressed by legal

precedent. Reviewing applicable case law, the First Circuit

observed in 1980:

“The remedy awarded in such cases . . . has not been

the awarding of the value of the diminished property

right, but a declaration of the invalidity of the pur-

ported exercise of the police power. [Citations

omitted.] Our research has disclosed no case in which

a federal court has ordered a state or local govern-

ment unit to pay for a diminution of the value of a

piece of property caused by a zoning regulation.”

(Pamel Corp. v. Puerto Rico Highway Authority, 621

F.2d 33, 35 (1st Cir. 1980).)

Traditionally, state courts have similarly rejected dam-

ages as remedy in regulatory takings cases in favor of

invalidation or related equitable remedies.’

Thus, respondent’s claim that “this Court has also recog-

nized that . . . a temporary deprivation of property can

constitute a taking for which damages are an appropriate

remedy” in land use cases (Respondent’s Brief in Opposi-

*A partial list of pertinent state court decisions includes Davis v.

Pima County, 121 Ariz. 343, 590 P.2d 459 (1978) cert. denied 442

U.S. 942 (1979); Gold Run, Ltd. v. Board of County Comm'rs, 38

Colo. App. 44, 554 P.2d 317 (1976); Mailman Dev. Corp. v. City of

Hollywood, 286 So. 2d 614 (Fla. App. 1974); Holaway v. City of

Pipestone, 269 N.W.2d 28 (Minn. 1978); Fred F. French Inv. Co. v.

City of New York, 39 N.Y.2d 587, 350 N.E.2d 381, 385 N.Y.S. 2d 5,

(1976), appeal dismissed, 429 U.S. 990 (1977); Eck v. City of Bis-

mark, 283 N.W.2d 193 (N.D. 1979); Fifth Ave. Corp. v. Washing-

ton County, 282 Or. 591, 581 P.2d 50 (1978); Gaeble v. Thornbury

Township, 8 Pa. Commw. 379, 303 A.2d 57 (1973); Allen v. City &

County of Honolulu, 58 Ha. 432, 571 P.2d 328 (1977); McShane v.

City of Fe~tault, 292 N.W.2d 253 (Minn. 1980); Agins 0. City of

Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372 (1979), affd. on other

grds, 447 U.S. 255 (1980); DeMello v. Town of Plainville, 170

Conn. 675, 368 A.2d 71 (1976); Trustee Under Will, etc. v. Town

of Westlake, 357 So.2d 1299 (La. 1978).

tion to Petition at 5) is fiction. The Court observed in

United States v. Central Eureka Mining Co., 357 U.S. 155,

166 n.12 (1958) that “Ordinarily, the remedy for arbitrary

governmental action is an injunction, rather than an action

for just compensation.”

Respondent mistakenly relies upon past cases in which

the federal courts have mandated compensation in the

face of actual governmental seizure of private property.

But such precedents simply reflect the rule that the United

States and individual states may constitutionally enter

into physical possession of property without first filing

condemnation proceeding, and instead may take the prop-

erty and require the owner to himself institute proceed-

ings for compensation. (United States v. Dow, 357 U.S. 17,

21 (1958).) A corollary principle is that physical invasions

of private property rights (so-called “physical invasion”

cases) may trigger a requirement for compensation.

(United States v. Lynah, 188 U.S. 445 (1903) (permanent

flooding of plaintiff’s land); United States v. Causby, 328

U.S. 256 (1946) (airplane overflights).) Where such action

occurs, limiting the remedy to an award of damages may

well be proper. The sometimes permanent nature of such

takings accounts for the court’s historical reluctance to

utilize injunctive relief when to do so might frustrate legi-

timate government functions. (See, e.g., Hurley v. Kincaid,

285 U.S. 95, 104 (1932).)

Precisely the opposite considerations obtain in the case

of alleged takings resulting solely from applications of the

government’s police powers (so-called “regulatory tak-

ings”). Such acts are neithe. permanent nor irreversible.

This Court has previously recognized that the distinction

between “physical invasion” and “regulatory” takings is

one of kind rather than degree. (See Penn Central Trans-

portation Co. v. New York City, supra, 438 U.S. 104, 124;

United States v. Clarke, 445 U.S. 253, 257-258 (1980).)

This critical difference accounts for the traditional judi-

cial preference for equitable remedies in the case of “regu-

latory takings,” and damages in “physical invasion” cases.

B. Remanding a Regulatory Measure Which Constitutes a

Taking of Property Is an Effective and Appropriate

Remedy

Amici suggest that it is inappropriate for this Court to

mandate payment of damages under a theory of inverse

condemnation in cases involving takings arising out of

regulatory conduct. The preferable rule following a finding

of a taking is instead to remend the case to permit the

agency and legislative body to make an informed decision

as to whether to repeal the offending measure, acquire the

parcel or take other sufficient corrective action.

This rule respects longstanding federal and state court

precedents while avoiding the imposition of forced pur-

chase on an agency that often lacks the requisite power,

funds or desire to acquire property that has been “taken.”

The Court should instead afford respondent a reasonable

opportunity to cure the taking. In particular cases, pur-

chase may ultimately be the optimum solution; in others,

rescission or modification of the offending measure is

appropriate. A blanket rule imposing damages as the ex-

clusive remedy, however, would be inflexible and ultimately .

counterproductive. (See part I(C), below). The central

point is that choice of the appropriate remedy should be

left in the first instance to the governmental agency, to

be made on the basis of informed decision-making.

The trial court, having initially found a taking, exercises

its inherent and traditional supervisorial power to oversee

the administrative decision-making process on remand.

*We understand that petitioner Commission does not have the

power of eminent domain. Amici California Coastal Commission

and Tahoe Regional Planning Agency also lack such authority.

That a ccart can retain continuing jurisdiction over such

developments is an unquestionable element of the trial

court’s equitable powers.

The trial court’s retention of such an oversight role,

moreover, overcomes any suggestion that public agencies

will simply change an invalidated regulatory measure so

as to frustrate both the judicial decree of invalidation

and the landowner’s private property rights. Public

officials, after all, are sworn to uphold constitutional rights

to the best of their ability, and they therefore are not

likely knowingly and voluntarily to violate that oath. Nor

do they lightly risk contempt of court sanctions for sub-

verting judicial decrees. The courts, both state and federal,

have sufficient enforcement powers to ensure that their

orders are observed, including the ultimate power to man-

date specific actions, if good faith responses are not forth-

coming. There are thus numerous meens, other than the

drastic remedy sought here, to provide relief for improper

governmental responses after a decree striking down a

regulatory measure.

How this rule can and should be applied is illustrated

by the California Supreme Court’s recent decision in Furey

v. City of Sacramento, 24 Cal.3d 862, 157 Cal.Rptr. 684

(1979), cert. denied 444 U.S. 976 (1979). There the court

held that allegations that a city encouraged installation

of public improvements with private funds, if proven,

could constitute a taking where subsequent municipal

zoning rendered those improvements worthless. The court,

however, rejected an award of damages premised on a

theory of inverse condemnation. It insteasi found it appro-

priate to remand the proceedings w the local govern-

mental entities to afford them “a reasonable opportunity

to make use of the reassessment procedures. .. . or to take

other appropriate action directed toward ameliorating in

equitable fashion the gross inequities which here appear.”

(24 Cal.3d at 878, 157 Cal. Rptr. at 693*); see also Ed

Zaagman, Inc. v. City of Kentwood, 406 Mich. 137, 277

N.W. 2d 475, 480-489 (1979) (requiring remand for admin-

istrative corrective action following judicial finding of a

taking) ; cf. Hernandez v. City of Lafayette, 643 F.2d 1188,

1200-1201 (5th Cir. 1981), cert. denied 455 U.S. 907 (1982).)

Numerous legal commentators have agreed that judicial

remand to the public agency is a -emedy far preferably to

mandated imposition of a damage award.

‘In his San Diego Gas & Electric dissent, Justice Brennan char-

acterizes California law as standing for the proposition that “[n]o

set of factual circumstances, no matter how severe, can ‘transmute’

an arbitrary exercise of the city’s police power into a Fifth Amend-

ment ‘taking.’” (450 U.S. at 642-643.) With all due respect, this

perception is incorrect, as evidenced by the Furey decision. Califor-

nia courts have found takings to have occurred in a variety of fac-

tual contexts, with damages warranted in appropriate circumstances.

(See, e.g., HFH, Ltd. v. Superior Court, 15 Cal.3d 508, 516 n.14,

125 Cal.Rptr. 365, 371 n.14 (1975); Toso v. City of Senta Barbara,

101 Cal.App.3d 934, 162 Cal.Rptr. 210 (1980); jones v. People ex

rel. Dept. of Transportation, 22 Cal.3d 144, 148 Cal.Rptr. 640

(1978); Liberty v. California Coastal Commission, 113 Cal.App.3d

491, 500-504, 170 Cal.Rptr. 247, 252-255 (1980).) What California

law does provide is that the right to pursue judicial relief for an

unconstitutional taking does not carry with it an unfettered right

to a particular remedy. (Sen Diego Land & Town Co. v. Neale,

78 Cal. 80, 82, 20 P. 380, 381 (1888).)

*There have been innumerable law review articles written on

this subject. See e.g., Mandelker, Land Use Takings, The Compen-

sation Issue, 8 Hastings Const. L.Q. 491, 504-512 (1981); Comment,

Inverse Condemnation: Its Availability in Challenging the Validity

of a Zoning Ordinance, 26 Stanford L.R. 1439 (1974); Girard,

Agins: A Step in the Right Direction, Land Use L. & Zoning Dig.

(September 1979); Magavern, The Evolution and Extension of the

New York Law of Inverse Condemnation, 24 Buff. L. Rev. 273

(1975); Clark and Kidman, The Relationships of Just Compens

tion to the Land Use Regulatory Power, 2 Pepperdine L. Rev. *

(1975); Beuscher, Land Use Controls: Cases and Materials, ( .d

ed. 1964) at 538-50; Wright, Exclusionary Land Use Controls and

the Taking Issue, 8 Hastings Const. L.Q. 545, 578-583 (1981).

C. A Compelled Damages Remedy for a Regulatory

Action Which Constitutes a Taking Contravenes Sev-

eral Importart Public Policies Warranting a More

Flexible Approach

Numerous important considerations of public policy

underlie the longstanding rule that judicially imposed dam-

ages are inappropriate in a case involving a regulatury

taking. Several of the most important are summarized

below.

1. Damages Are an Inefficient Remedy in Most Cases

Involving a Taking Arising Out of Regulatory

Conduct

Where application of regulatory measures have been

found to effect a taking, it is incumbent upon the court to

fashion the optimum remedy. Implicit is the duty to deter-

mine what type of relief is required to correct the wrong

and how the court can most efficiently provide it.

The rule urged by respondent is of a most radical nature.

In effect, it would tell a governmental entity that when the

latter acted in a specific regulatory role, albeit improperly,

it triggered compulsory acquisition of a fee or lesser inter-

est in the land involved. “When you zoned it, you bought it”

(or at least some interest in it). This would be true no

matter how unintended the result or how disastrous the

impact on the public treasury.

However, the mandatory damages remedy urged by

respondent is short-sighted and ultimately counterproduc-

tive. In the case of a successful takings action brought

against an agency that has impermissibly denied a develop-

ment permit, for example, the aggrieved landowner could

be awarded damages in lieu of the right to further pursue

development options. Leaving aside the often illusory Lene-

fits government would obtain thereby, the interests of

various third parties are ignored. The proposed project

developer, if other than the landowner, would obtain no

benefit whatsoever from a damages remedy. Nor would sur-

rounding landowners who may (or may not) stand to benefit

from future development. Similarly overlooked are vier

potential beneficiaries of development, such as prospective

residential or commercial tenants.

The corollary issue of valuation is also ignored by respon-

dent’s argument. In the event of direct or inverse condemna-

tion warranting damages, government is presumably re-

quired to pay only for the property interest it received,

not for the opportunity value lost to the property owner.

(United States v. Powelson, 319 U.S. 266, 284 (1943.))

Damages may, of course, turn out to be the preferable

remedy in a given case. Compelled payment of damages,

however, does not represent the optimum course in all or

even most takings litigation.

2. A Compelled Monetary Remedy for a Regulatory

Action Which Constitutes a Taking Is Inappro-

priate and Would Effectively Transfer the Power

of Eminent Domain from Legislatures to the Judi-

ciary, And Is Therefore Inconsistent With the

Separation of Powers Doctrine

The power to regulate and the power of eminent domain

are two distinct powers of government. (See, e.g., Fred F.

French Invest. Co. v. City of New York, 39 N.Y.2d 58, 350

N.E.2d 381, 384-385, 385 N.Y. Supp.2d 5, 8-9 (1976), app.

dism. 429 U.S. 990 (1977).) The fact that the former may be

limited by the same constitutional clause which limits the

latter does not mean that the latter has been exercised when

that limit is reached. Where the legislature has not chosen

to exercise its eminent domain power, the courts should not

compel its use as a damage remedy. This result simply rec-

ognizes the proper constitutional role of the legislative

branch of government in determining when that legislative

power should be exercised. ;

This distinction betwcen agencies with the power to con-

demn and th se which are not entrusted with such authority

also finds considerable support in the court’s rationale in

NBH Land Co. v. United States, 576 F.2d 317, 319 (Ct. Cl.

1978):

“Cases of ‘inverse’ takings without physical invasion

or ousters are not very numerous, and when they occur

. .. this court has been careful to consider the role of

Congress, and the taking, if not expressly authorized

or directed by Congress, at ieast is a natural conse-

quence of Congrevsionally approved measures... To

reach the result of those cases here, in a case when the

only participatiou by Congress has been to reject the

acquisition out of hand, would strike a blow at the

power of the purse. The exclusive assignment of that

power to Congress is ile foundation of our liberties.”

The separation of powers issue engendered by respon-

dent’s theory was further noted in Jacobson v. Tahoe Re-

gional Planning Agency, 474 F.Supp. 901, 904 (D.Nev.

1979), affd. on other grds., 661 F.2d 940 (9th Cir. 1981):

“Tf a zoning ordinance is enjoined, the legislative body,

rather than the court, can then decide whether the so-

cial benefits flowing from the plan warrant the exercise

of eminent domain and the expenditure of public re-

sources. When the legislature decides that the costs

outweight the benefits, it can either abandon the ob-

jective entirely, enact less stringent regulation, or com-

bine regulation with compensation” (quoting Com-

ment, Inverse Condemnation: Its Availability In Chal-

lenging the Validity of a Zoning Ordinance, 26 Stan-

ford L.R. 1439, 1451 (1974).)

(See also, Agims v. City of Tibwron, supra, 24 Cal.3d 266,

276, 157 Cal. Rptr. 372, 377 (1979).)

Tkus, the courts have repeatedly emphasized that the

legislature is the appropriute branch of government for a

determination of whether the condemnation power will be

exercised and public funds expended.°

Some state legislatures have explicitly provided for such

a determination in the regulatory measure itself. The Dela-

ware Wetlands Statute (7 Delaware Code, Chapter 66), for

example, provides that “if the Superior Court finds that the

action appealed from constitutes a taking without just com-

pensation, it shall invalidate the order and grant appropri-

ate relief .. .” The effect of such an order is, however,

stayed by statute for a period during which the Secretary

of Natural Resources and Environmental Control may de-

termine whether to invalidate his action or to initiate con-

demnation proceedings to acquire the fee or any lesser in-

terest. A similar provision is provided in the Delaware

Coastal Zone Act (7 Delaware Code, Chapter 79.) Other

states have similar provisions. (E.g., Florida Land and

Water Management Act, Fla. Stat. Anno. (West) $§ 380.085

(3), modeled on § 9-112 of the American Law Institute’s

Model Land Development Code (1976); Mass. Gen. Laws

C. 131, § 40A, and C. 130, § 105.)

In summary, it is indisputably the court’s obligation to

determine whether a regulatory measure effects a taking

in a particular case. But the weighing of costs and benefits

leading to the decision whether compensation should be paid

is properly left to the legislature rather than the courts.

‘California law, for example, provides detailed limitations and

procedures for exercise of the eminent domain power. Under

California law, state and municipal governments do not have the

power of eminent domain unless authorized by statute, and they

must adhere to the procedures established by statute. See generally

Calif. Code of Civil Procedure §§ 1230.010 et seq.; see also City

of Beaumont v. Beaumont Irrigation District, 63 Cal.2d 291, 46

Cal.Rptr. 465 (1965); People v. Superior Court, 10 Cal.2d 288,

73 P.2d 1221 (1937).

DS OR PARE APIO 8 OMI OB OO 7 pia

3. Adoption of the Rule Suggested by Respondent

Would Result in Major Additional Fiscal Prob-

lems for State and Local Government

Closely related to the separation of powers concerns dis-

cussed above is the fact that the rule urged by respondent

could undermine the fiscal weli-being of state and local gov-

ernments.

Since agencies such as petitioner and amicus Tahoe

Regional Planning Agency have not been granted the power

of eminent domain, it goes without saying that no funds

heve been appropriated to purchase property on their be-

half or even to pay damages for temporary restrictions.

State legislatures simply did not intend for petitioner Com-

mission and similar planning bodies to commit public funds

for the purchase of private property.

Judicially-compelled damages in this context could have

major adverse fiscal consequences. With the advent of se-

vere tax reduction measures across the nation, state and

local governments are being asked to meet increasing de-

mands with a stable or even declining revenue base.

Federal courts have recognized the adverse consequences

of imposing upon the judiciary the de facto task of allocat-

ing public funds. “Federal enforcement of the inverse con-

demnation remedy would be a singularly inappropriate in-

trusion into the states’ traditional domains of property law

and land use policy.” (Pamel Corp. v. Puerto Rico Highway

Authority, supra, 621 F.2d 33, 36;' see also Jacobton v.

"The power of federal courts to impose money damages against

cate and egfensl qreememactn ts Satan cemmmeasteads enter oo

Eleventh Amendment (Pennhurst State School & Hospital v.

Halderman, .. US. .. , 79 L.Ed.2d 67 (1984); Citadel Corp. v.

Puerto Rico Highway Authority, 695 F.2d 31, 33n.4 (1st Cir. 1982) )

and the abstention doctrine. (Burford v. Sun Oil Co., 319 U.S. 315

(1943); C-Y Develo, ment Co. v. City of Redlands, 703 F.2d

(9th Cir, 1983). ” -

Tahoe Regional Planning Agency, supra, 474 F.Supp. 901,

903: “TRPA does not have the power under the interstate

compact to levy and collect revenue ... A damage remedy

may frustrate the budgeting of public funds”; Agins v.

City of Tiburon, supra, 24 Cal.3d 266, 276, 157 Cal.Rptr.

372, 377.)

Respondent’s position, if upheld, would significantly re-

duce if not emasculate legislative control over the proper

allocation of often limited financial resources. For example,

we are advised that the $350,000 awarded in damages

against petitioner far exceeds the Commission’s annual bud-

get. Monetary judgments in such cases could well destroy

state and local government’s ability to provide other nec-

essary public services. (Cf. National League of Cities v.

Usery, 426 U.S. 833, 852 (1976).)*

The availability of damages in cases such as the instant

litigation would spell fiscal disaster for state and local gov-

ernments charged with administering extensive and com-

plex land use programs. The Court should not impose such

a rule, particularly where less burdensome and equaily

effective remedies are available.

*Petitioner's situation is by no means ee dts

Regional Plannin Agency, for example, has recen

Seoticstneies te Gis Raho Tatoo Siiits on 0 vesiit of tp ebagtion of 0

revised regional plan. Plaintiffs—who assert no bad faith or mali-

cious conduct on the part of T.R.P.A—seek damages that aggregate

over $26 million. (Tahoe-Sierra Preservation Council v. Tahoe Re-

gional Planning Agency, E.D.Cal. Case No. CIV-S-84-0816-EJG;

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning

Agency, D.Nev. Case No. CV-R-84-257-ECR.) These claims, if

successful, would no doubt bankrupt the agency, which lacks insur-

ance and depends on voluntary appropriations by amici States of

Nevada and California for its major source of funding. The poten-

tial adverse consequences to the public as well as the Lake Tahoe

environment are obvious. |

4. The Compelled Payment of Damages as the Rem-

edy in Land Use Cases Will Have a Chilling Effect

on the Exercise of Necessary Governmental Func-

tions

Last but certainly not least, the award of damages against

land use planning entities is likely to have a major chilling

effect upon this essential governmental function. Especially

given the limited budgets of most such regulatory bodies,

only the bravest official will venture more than the mildest,

and most ineffectual, form of land use controls. As one

commentator observed in reviewing the Agins case:

“The upholding of Agins’ position wuuld have had only

the effect of making local governments or public enti-

ties very cautious in the use of police power. They

would retreat to the safety of proven regulations sanc-

tioned by stare decisis. If this had been the meaning

of Euclid and Nectow, very likely no one would have

proposed the planned unit development, the cluster

zone, or the floating zone, and even if those efforts had

received the prior blessing of developers, it is highly

unlikely that environmental concerns or regulation of

coastal and inland waterways would ever have been

risked.

“The price that Agins urged and California rejected is

too high to pay. To condone the concept of inverse con-

demnation in this area of the law is to deny the very

first of the maxims of equity, which recognizes that the

public interest must be the first concern of the law.”

Wright, Exclusionary Land Use Controls and the

Taking Issue, 8 Hastings Const. L.Q. 545, 583 (1981).)

This Court has expressed the same concern. (Lake

Country Estates, Inc. v. Tahoe Regional Planning Agency,

supra, 440 U.S. 391, 405; Harlow v. Fitzgerald, 457 U.S. 800,

814, 816 n.29 (1982).)

If governmental entities may exercise their regulatory

powers only at the risk that they may have erred and there-

fore inadvertently “purchased” interests in regulated par-

cels, appropriate and necessary regulation of land by both

traditional and modern methods will be substantially in-

hibited, with a predictable adverse effect on the nation’s

environment. As the Hawaii Supreme Court has put it:

“Monetary awards in zoning disputes would inhibit

governmental experimentation in land use controls and

have a detrimental effect on the community’s control of

the allocation of its resources.” (Allen v. City and

County of Honolulu, 571 P.2d 328, 331 (Ha. 1977).

The New York Court of Appeals has expressed the same

view:

“(T]he prospect of tort liability might impede .. .

desirable governmental regulation and legislation since

[governmental] officers might fear subsequent judicia:

imposition of massive tort recoveries. Open-ended lia-

bility could inhibit the enactment of needed, but consti-

tutionally borderline legislation. The most salutary and

effective means to curtail unconstitutional action is to

stop the action before it can take effect. Indeed, the

prospect of a tort action might incite potential plain-

tiffs to cumulate their damage and institute their con-

stitutional claims only after significant passage of time

and significant reliance upon the heretofore unchal-

lenged validity of its action by the governmental unit

involved. In the absence of legislative guidance and

compelling precedent, we decline to extend tort liability

for unconstitutional action to situations where govern-

ment has not trespassed in some manner upon the bur-

dened property.” (Charles v. Diamond, 41 N.Y.2d

318, 360 N.E.2d 1295, 392 N.Y.S.2d 594, 604-605

(1977), see also CEEED v. Califorma Coastal Zone

Conservation Commission, 43 Cal.App. 3d 306, 327,

118 Cal.Rptr.315, 330 (1974).)

This Court has consistently emphasized that a damage

remedy should not be available where it would have such

a chilling effect:

“Legislators are immune from deterrents to the unin-

hibited discharge of their legislative duty, not for their

private indulgence but for the public good. One must

not expect uncommon courage even in legislators. The

privilege would be of little value if they could be sub-

ject to the cost and inconvenience and distraction of a

trial upon a conclusion of the pleader, or to the hazard

of a judgment against them based upon a jury’s specu-

lation as to motives.” (Tenney v. Brandhove, 341 U.S.

367, 377 (1951).)°

Finally, imposition of a mandatory damages remedy in

regulatory takings cases could discourage state and local

governments from participating in a wide variety of fed-

eral programs that depend for their effectiveness on state

and local implementation. (See, e.g., Coastal Zone Manage-

ment Act of 1972, 16 U.S.C. 1451 et seq.; cf. Tahoe Regional

Planning Compact, P.L. 96-551, 94 Stat. 3233.)

Accordingly, the potential chilling effect on vital goven-

_ mental functions is yet another reason why the decision

below should be reversed.

*It is also important to emphasize the costs of litigating an action

in which damages are a possible remedy, as fcc pe action in

which invalidation is the result. In an action for damages after the

finding of a taking, the parties must proceed to try the issue of

the fair market value of the property, with all the attendant com-

plexities and costs of an eminent domain proceeding. Moreover,

even if the public agency is successful in prevailing in the appellate

courts, it cannot recover its complete defense costs. The simple

potential for incurring all or part of such costs, even in a successful

action, is thus an additional inhibiting factor to any regulatory

agency.

D. Recent Decisions of This Court Involving Constitu-

tional Torts by Government Officials and 42 U.S.C.

§ 1983 Suggest Federal Deference to Available State

Remedies ; Land Use Regulations Is Perhaps the Classic

Example of ‘‘Special Circumstances Counseling Hesi-

tation’? Where Money Damages Would Be Inap-

propriate

Respondent asserts that it is constitutionally entitled to

a damages remedy because invalidation of zoning and plan-

ning measures found to constitute a taking would be an in-

adequate remedy for constitutional violations. Yet princi-

ples of federalism afford state courts broad discretion in

fashioning remedies for violations of federal rights, so long

as the state courts afford an adequate remedy. (See gen-

erally Hill, Constitutional Remedies, 60 Colum. L. Rev. 1109,

1118 (1969). This Court has interfered with the states’

choice of remedy for violation of a federal right only where

the sole remedy offered in the state courts is wholly inade-

quate, in effect denying any relief for the violation. (Abood

v. Detroit Board of Education, 431 U.S. 209, 237-242 and

n.45 (1977) ; see also, Miranda v. Arizona, 384 U.S. 436, 467

(1966).) Indeed, this Court has specifically expressed a

willingness to defer to traditional remedies afforded under

state law in the face of state or local actions resulting in a

taking. (Parratt v. Taylor, 451 U.S. 527, 537-539 (1981).)

Nor do past cases involving damage actions arising

either directly under a provision of the Constitution or

under 42 U.S.C. 1983 assist respondent. (E.g., Owen v.

City of Independence, 445 U.S. 622 (1980); Bivens v. Six

Unknown Named Agents of the Federal Bureau of Nar.

cotics, 403 U.S. 388 (1977).) In these decisions, as well as

in others involving a constitutional claim to a monetary

damage remedy, the Court has consistently emphasized

that there may be “special circumstances counselling hesi-

tation” where money damages would not be appropriate.

(Bivens, 443 U.S. at 396-397 ; Owens, 445 U.S. at 651; see

also, Carlson v. Green, 446 U.S. 14 (1980); Davis v.

Passman, 442 U.S. 228 (1979).)

Amici respectfully submit that the factors discussed in

part I(C) of this brief are “special circumstances coun-

selling hesitation,” and that a compelled damage remedy is

singularly inappropriate in the case of an unconstitutional

land use regulation. It is not “damages or nothing” in this

case (cf. Bivens, 403 U.S. at 410 (J. Harlan, dissenting) ) ;

another “remedy, equally effective,” exists. A federally

mandated damage remedy here “would be a singularly

inappropriate intrusion into the states’ traditional domains

of property law and land use policy,” since it would, in

effect, constitute a judicial exercise of the legislative

power of eminent domain. (Pamel Corp. v. Puerto Rico

Highway Authority, swpra, 621 F.2d 33, 36; Jacobson v.

Tahoe Regional Planning Agency, supra, 474 F

yd , supra, ‘Supp. 901,

E. “Interim Damages” Are Not Required to Compensate

Landowners for “Temporary” Takings. Judicial Re-

mand to the Affected Agency, Coupled With Effective

Court Oversight, Affords a Fully Sufficient Remedy

Respondent suggests that the equitable remedies which

have always been available under American law to ad-

dress a regulatory taking are inadequate to cure in-

juries attributable to a “temporary” or “partial” taking.

Justice Brennan’s dissent in San Diego Gas ¢ Electric

supra, 450 U.S. 621, 636-661, affords some support for this

proposition. Yet amici believe that the traditional remedy

of judicial remand to the agency for appropriate corrective

action, coupled with diligent, continuing court oversight, is

a fully adequate remedy.

Faced with a regulatory measure perceived to be uncon-

stitutional, a landowner bears the responsibility to secure

judicial review promptly. Assuming this is done, the courts

are fully capable of resolving the controversy with dis-

patch.”

Assuming that a regulatory body is acting in good faith,

courts have consistently held that such temporary inter-

ferences with construction projects do not give rise to a

taking. Justice Powell observed for a unanimous Court in

Agins v. City of Tiburon, swpra, 447 U.S. 255, 263n.9, for

example:

“Even if the appellants’ ability to sell their property

was limited during the pendency of the condemnation

proceeding, the appellants were free to sell or develop

their property when the proceedings ended. Mere fluc-

tuations in value during the process of governmental

decisionmaking, absent extraordinary delay, are ‘in-

cidents of ownership. They cannot be considered as a

“taking” in the constitutional sense.’ ”

(See also 2 J. Sackman & P. Rohan, Nichols’ Law of Emi-

nent Domain §6.13[3] (3d ed. 1979); HFA, Ltd. v. Supe-

rior Court, 15 Cal.3d 508, 518-520, 125 Cal.Rptr. 365, 372-

74 (1975).)

The Fifth Cireuit in Hernandez v. City of Lafayette,

supra, 643 F.2d 1188, 1200, coneluded that “a ‘taking’ does

not occur until the municipality’s governing body is

given a realistic opportunity and reasonable time within

which to review its zoning legislation vis-a-vis the partic-

ular property and to correct the inequity.” Adopting the

"The present case provides an excellent illustration. Petitioner

denied respondent's development application in June 1981. Re-

spondent brought the instant suit two months later. Trial was held

and a verdict reached in April 1982—a mere nine months subse-

quent. Yet respondent claimed, and the Court of Appeals agreed,

that the former was entitled to $350,000 in interim damages as the

result of this short delay. And this was despite the fact that normal

delays in the land development proces:, independent of petitioner's

actions, had already consumed eight years before the application

in question was denied.

remand remedy outlined in part I(B) above, the Hernandez

court expressly rejected the notion that temporary diminu-

tions in value could amount to a taking for which compen-

sation is resuired. (Jd. at 1201.)

Indeed, numerous federal and state court decisions have

upheld the power of agencies unilaterally to impose good

faith moratoria on land use development. (Donohue Con-

struction Co., Inc. v. Montgomery Co., 567 F.2d 603, 608

(4th Cir. 1977) ; Smoke Rise, Inc. v. Washington Suburban

Sanitary Comm., 400 F.Supp. 1369, 1382-1383 (D. Md.

1975); Miller v. Board of Public Works, 195 Cal. 477, 234

P. 381 (1925), cert. denied 273 U.S. 781 (1927).) The pres-

ent case is closely analogous.

Damages are therefore unnecessary in the vast majority

of cases in which temporary regulatory takings are the

product of good faith, reasonable governmental attempts

to administer land use programs.

Left to be considered is the rare case where malicious

or wanton conduct is at work. (E.g., San Diego Gas ¢

Electric Co. v. City of San Diego, supra, 450 U.S. 621,

655 n.22 (Brennan, J., dissenting.) Such conduct cannot and

should not be condoned. Yet this Court has had little diffi-

culty fashioning precise rules to correct intentional con-

stitutional torts in a variety of ecntexts. (See, e.g., New

York Times v. Sullivan, 376 U.S. 254 (1964) ; City of New-

port v. Fact Concerts, Inc., 453 U.S. 247, 269-270 (1981) ;

Harlow v. Fitzgerald, supra, 457 U.S. 800, 817-819.) There

is no reason to believe that it is any less able to articulate

such effective and precise sanctions in the case of zoning

officials who knowingly abuse their important offices.”

“Such is not, of course, apposite in the present litigation. The

jury reached a special verdict that petitioner was acting in gcod

faith and without malice in denying respondent's project applica-

tion. (Appendix to Petition for Certiorari at 24a.)

In the vast majority of cases, however, it is indisputable

that state, regional and local planning officials engage in

conduct that “does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” (Harlow v. Fitegerald, supra, 457 U.S. at

818.) Inadvertent regulatory excess under such circum-

stances can be corrected fully by remanding the matter to

the administrative/legislative body for corrective action.

Under the watchful eye of the reviewing court, effective

relief can be secured swiftly and efficiently. (See part I(B),

above.)

NO TAKING HAS BEEN SHOWN TO HAVE 0OC-

CURRED IN THIS CASE

While the issue of whether a monetary remedy is con-

stitutionally required for “regulatory takings” is both

interesting aud very important, it need not be reached in

this case, for the district court correctly found that no

taking had occurred.”

12]t is doubtful that the taking question raised by respondent is

even ripe for judicial review, as there seems to be no evidence that

respondent ever attempted to submit an application to petitioner

complying with the ordinances in question. In that posture, the

case lacks the “concrete controversy” described by this Court in

Agins, supra, 447 U.S. 255, 260, ret.vithstanding testimony from

respondent's appraiser about what the ordinances allowed. (See

Hamilton Bank of Johnson City v. Williamson County Regional

Planning Commission, 729 F.2d 402, 406 (6th Cir. 1984). The

rejection of a preliminary plat, apparently prepared without any

effort to comply with the regulations in question, cannot be suffi-

cient to constitute a taking especially when it is conceded that

some additional developme will be allowed.

A. The Courts Below Inappropriately Chose to Consider

Only the Portion of the Development Owned By

Respondent, Rather Than the Integrated Project

as a Whole, in Determining Whether a Taking Had

Occurred

While this Court has repeatedly recognized the difficulty

inherent in determining whether a taking has occurred in a

particular case,“ the applicable precedents make it clear

that no taking occurred here.

The fundamental flaw in the Sixth Circuit’s analysis of

the taking question is its description of the property with

which it is concerned : “The property in question in this case

is the as yet underdeveloped portion of a residential sub-

dwision.” (729 F.2d at 406.) (Emphasis added.) It is onlv

this artificial dissection of the property by the respondent

that made it possible to find that the property at issue

“had no remaining significant value,” (id.) when in fact 212

houses had already been built as part of the same develop-

ment. For the court to consider only part of the develop-

ment for purposes of the taking analysis was plainly

incorrect. °

This Court’s decision in Penn Central Transportation Co.

v. City ef New York, supra, 438 U.S. 104, is dispositive.

Rejecting the argument that the rights to develop the air-

space above Grand Central Terminal had been taken regard-

less of whatever value might inhere in the existing struc-

ture, the Court noted:

““Taking’ jurisprudence does not divide a single parcel

into discrete segments and attempt to determine

whether rights ix. * certain segment have been entirely

See, e.g., Penn Central Transportation Co. v. City of New York,

supra, 438 U.S. at 123-24 (1978); Loretto v. Te’2prompter Man-

hattan CATV Corp., 453 U.S. 419, 426 (1982); Hodel v. Virginia

Surface Mining & Reclamaiion Association, 452 U.S. 264, 294-95

(1981).

abrogated. In deciding whether a particular govern-

mental action has effected a taking, this Court focuses

rather both on the character of the action and on the

nature and extent of the interference with rights in

the parcel as a whole—here the city tax block desig-

nated as the ‘landmark site.’” (438 U.S. at 130-31;

see also Andrus v. Allard, 444 U.S. 51, 65-66 (1979).)

Thus, in determining whether the property at issue here

had been taken, it is necessary to examine the entire devel-

opment rather than only the portion now owned by the bank.

Since this approach was not followed by the courts below,

no findings were made as to whether the parcel, with 212

existing units and apparently at least 67 more allowable,

had been “taken.”

A different result cannot obtain * crely because the

original owners of the development have now sold a portion

of it to respondent. This would allow to be done by indirec-

tion precisely what was forbidden in Penn Central. Put

another way, the validity of governmental regulations can-

not change with shifts in ownership of the property being

regulated. For example, if Penn Central were now to sell

its air rights above Grand Central Terminal, the new owner

would not be able to allege a taking any more successfully

than could Penn Central itself. Similarly, as long ago as

1927, this Court upheld set back regulations requiring de-

velopers not to build within a given distance of the edge of

their property against an argument that this constituted a

taking of the property to be left vacant. Gorieb v. For, ‘74

U.S. 603 (1927). Surely the result would not be different

had the set back areas been sold to a third party.”

“It was by considering the original plans for the entire

dovelageat Get ctor of tos apart bilow wus peomended Gut

the respondent had acquired any expectations concerning the abil-

ity to build on the land now at issue. The artificial nature of the

division employed in the decision below is therefore particularly

glaring.

B. The Court of Appeals Erroneously Determined That

the Ordinances in Question Were Required to Ensure

& Profitable Use of Respondent’s Property

Related to the artificial division of one development into

two parcels for purposes of analyzing the taking question

is the Sixth Circuit’s analysis of the “economic viability”

of plaintiff’s parcel in isolation from the project as a

whole.”

The Court of Appeal erroneously interprets prior cases

to require that government allow uses which will make

the ownership of ery parcel of land economically viable.**

This is not the lav., any more than is the government re-

quired to insure the profitability of any other investment.

Examples are obvious. One who buys a parcel on top of a

mountain will obviously encounter tremendous costs in

attempting to provide urban services such as water and

electricity. The fact that these services will be expensive

does not somehow entitle the mountain’s owner to construct

a 200-stery condominium tower, even if that is the only

density which could reasonably be expected to yield a suf-

ficient return to finance the extension of urban services.

Were this not true, the parcels most ill-suited financially

for intensive urban development, i.e., those furthest from

the necessary services, would be entitled to the most inten-

sive use since they would require the most intensive use

to be financially viable. There are parcels of land which can-

not yield a reasonable return on any investment. No gov-

ernmental entity is required by the United States Constitu-

“The Sixth Circuit found a taking based un testimony that only

67 new building sites could be developed and that the cost of meet-

ing the conditioas of approval would be too great to permit a

development of 67 houses to be profitable. (720 F.2d at 406.)

**The Court of Appeals seems to have applied only the economic

viability test in determining whether a taking had occurred. It

makes no mention of the extent of the investment the respondent

had made in this property or of what reasonable expectations it

could have formed at the time the investment was made.

tion to remedy this simple fact of nature and economics.

Nor is government required to assure that all investors

in real estate will make money.

CONCLUSION

For the foregoing reasons, amici curiae respectfully sub-

mit that the decision of the Court of Appeals for the Sixth

Circuit, insofar as it finds petitioner liable in damages,

should be reversed.

Dated: November 15, 1984

Joun K. Van ve Kamp

Attorney General

Ricuarp C, Jacoss

Special Counsel

N. Grecorny TayLor

THeEoporsa BERGER

Assistant Attorneys General

Craic C. THompson

Ricuarp M. F* anx

(Counsel of Record)

Deputy Attorneys General

1515 K Street, Suite 511

Sacramento, California 95814

(916) 324-5497

(Continued on nex. page)

Norman C. Gorsucn

Attorney General

State of Alaska

Tomas J. Mier

Attorney General

State of Iowa

Francis X. Bexiorr

Attorney General

State of Massachusetts

Husert H. Humpurey

Attorney General

State of Minnesota

Paut L. Doveias

Attorney General

State of Nebraska

Brun McKay

Attorney General

Grorce V. Postrozyy

Deputy Attorney General

State of Nevada

Grecory H. Surrs

Attorney General

State of New Hampshire

Rurvs L. Epmisren

Attorney General

State of North Carolina

Mic#Hae. TuRPEN

Attorney Genera!

Rosert L. McDownatp

First Assistant

Attorney General

State of Oklahoma

Marx V. Merernenry

Attorney General

State of South Dakota

Davi L. Wiuxrnson

Attorney General

Datuas W. Jensen

Solicitor General

State of Utah

Joun J. Easton

Attorney General

State of Vermont

Bronson C. La Fouuetrre

Attorney General

State of Wisconsin

Arc G. McCurntock

Attorney General

State of Wyoming

Avista F. Fa’Atevao

Attorney General

American Samoa

Attorneys for Amici

Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.