# Amicus Curiae Brief — Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0402%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 473 U.S. 172 ## Text 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 | 11 11 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- ee 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 15 17 21 iv 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 v 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 vi TaBLE OF AUTHORITIES CITED CasEs Page Holaway v. City of waenaniend 269 N.W.2d 28 (Minn. ee 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 -.... ix 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. 2 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. 3 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. 4 ARGUMENT I 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.) 5 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.) 6 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). 7 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- 8 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. 9 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.” 10 (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). 11 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 12 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 13 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 14 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 15 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). ” - 16 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. | 17 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).) 18 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).) 19 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. 20 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 21 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 22 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. 23 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.) 24 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.) II 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. 25 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). 26 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. 27 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. 28 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 29 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0402%3A07. Public record. Not legal advice.