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

- Supreme Lourl, ¥.0-

_ FILED

\p /

No. 84-4 DEC 13 1984

In the Supreme Court ofthe: ss |

CLERK

United States | 7

WILLIAMSON COUNTY REGIONAL

PLANNING COMMISSION, E? AL.,

Petitioners,

v.

HAMILTON BANK OF JOHNSON CITY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FC & THE SIXTH CIRCUIT.

BRIEF OF

CALIFORNIA BUILDING INDUSTRY ASSOCIA-

TION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

GIDEON KANNER

1441 West Olympic Boulevard

Los Angeles, California 90015

Teiephone: (213) 736-1058,

(818) 848-6765

Attorney for Amicus Curiae

California Building Industry

Association

Westside Law Publishers Los Angeles, California (213) 477-0491

TOPICAL INDEX

Page

Interest Of Amicus Curiae And Nature Of The Problem

Addressed. tena l

Summary Of Argument Ph ve 3

Argument

l.

Preliminary Statement: What Is The Issue Before The

Court? 7

I.

This Court’s History Of Explicit Recognition Of The

“Just Compensation” Remedy For Takings, As

Available And Preferred, Is Longstanding And

Thoroughly Settled. a 9

Ill.

The Acts Of Petitioner Were Within Its Powers, Even If

The Manner Of Execution Exceeded Constitutional

Limits. 12

IV.

Preservation Of The Right To Just Compensation For

Temporary Takings As Part O; A Flexible And Fair

System Of Remedies Rests On Sound Policy, Settled

Precedent, And Conservation Of Judicial Resources 15

V.

M_ Justice Brennan’s Views In San Diego Gas &

Electric Co. Have. Been Widely Acclaimed, And

Form A Desirable Blueprint For Solution Of The

Issue Before: The Court... coccccceee .. 20

Conclusion ...... de Re Rea eee oe aa | Om

<a

. id *

TABLE OF AUTHORITIES CITED

Cases’ Page

Alma Motor Co. v. Timken-Detroit Axie Co., 329 U.S.

SERRE 18

American Savings & Loan Assn. v. County of Marin, 653

Se PD WN GID. 5 ccc cnsccncscssccss, 4

Arastra Limited Partnership v. City of Palo Alto, 401

I UE CPO UN, GID. 2... 22s crescccccccceses 25

Armstrong v. United States, 364 U.S. 49 (1960)... 9,11

Askew v. Gables-by-the-Sea, 333 So.2d 56 (1976, Fla.

Ne Me De cddenccnadsneansousesscces: 22

Barbian v. Panagis, 694 F.2d 476 (1982 7th Cir.)........ 21

Bivens v. Six Unknown etc. Agents, 403 U.S. 388 (1971)

i ccccuddivecsinesesnesaees. 8, 12

Brazil v. City of Auburn, 598 P.2d 1 (1979, Wash.

iid ndins dewanneckndivoayeedeesseccceses “

Burrows v. City of hema, 432 A.2d 15 (1981, N.H.)..

Charles v. Diamond, 360 N.E. 2d 1295 (1977 N.Y.)..

Citadel Corp. v. Puerto Rico Highway Auth., 695 F. 2d

i

City of Austin v. Teague, 570 S.W. 389 (1978, Tex.)..

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

County of Los Angeles v. Berk, 26 Cal.3d 201, 161

Cal.Rptr. 742, 605 P.2d 381 (1980) ................... 6

Cuyahoga River Power Co. v. Akron, 240 U.S. 462

EE 15

Dames & Moore v. Regan, 453 U.S.654(1981)... 4,9,10,17

Davis v. Newton Coal Co., 267 U.S. 292 (1925) ........ 13

Devines v. Maier, 665 F.2d 138 (1981, 7th Cir.)......... 21

Donovan v. Penn Shipping Co., 429 U.S. 648 (1977)..... 8

Dugan v. Rank, 372 U.S. 609 (1963) ..3................... 10

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

ll cual sdckaccnucenenens 23

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

4G Co Edt aS SOE... SE Oe SN oD 2, 26, 27

Fountain v. Metro Atlanta Rapid Transit Dist., 678 F.2d

ec ccscntasecunccnveceses 21

ili

Fred F. French Investing Co. v. City of New York, 350

Ie ID TED on acs occcnncccsvacscncccocses 24

Fresno v. California, 372 U.S. 627 (1963) ................ 10

Frisco Land & Mining Co. v. State, 74 C.1l App.2d 736,

Se CE POUT ED 5. cc ccccccccccncccccnccscccss 6

Gold v. National Sav. Bank, etc. 641 F.2d 430 (1981

ROTA Eat SE (re et Senn any Pee 7

Gordon v. City of Warren, 579 F.2d 386 (1978 6th

SOIC Ra aT Be Pe eee ee ae eee 8, 21

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

rs os udanausnnews cacsctecnes 23

Hamilton Bank v. Williamson County, etc., Comm’n.,

729 F.2d 402 (1984, 6th Cir.) ...00000 oe. 21

Hawaii Housing Authority v. Midxiff, __.__ U.S. ___,

Ls ne en 11, 12

Hermanson v. Board of Commissioners, 595 P.2d 694

to, 2: | ne “elena 22, 23

Hernandez v. City of Lafayette, 643 F.2d 1188 (1981,

a, AER. SPR ie AR ela ts OM RO 21

Hollister ark Investment Co. v. Goleta County Water

Dist., 82 Cal. App.3d 290, 147 Cal. Rptr.91(1978) .... 6

Hooe v. United States, 218 U.S. 322 (1910).............. 13

Hughes v. Washington, 389 U.S. 290 (1967) ............. 13

Hurley v. Kincaid, 285 U.S. 95 (1932)......... 4,9, 10, 13

OUST Pee NES PMY FSO PN POR nt 14, 15, 16, 17

In re Aircrash in Bali, 684 F.2d 1301 (1982 9th Cir.)... 21

Jacobs v. United States, 290 U.S. 13 (1933).............. 13

Jacobson v. Tahoe Regional Planning Agency, 566 F.2d

Ne nn ne ee mnunens 5-6

Kaiser Aetna v. United States, 444 U.S. 164 (1979) .... 13

Key Haven Associates v. Board of Trustees, etc., 427 So.

RR ae Pee ae Sen 22, 23

Keystone Associates v. State, 333 N.Y.S. 2d 27 (App.

Div. 1972), aff'd, 307 N.E.2d254(N.Y.1973).... 8,24

Kohl v. United States, 1 Otto (U.S.) 357 (1876)......... 16

Kraft v. Malone, 313 N.W. 2d 758 (1981, N.D.)........ 22

Lake Country Estates v. Tahoe Regional Planning Agency,

SPP SD CIID «cvs vncucccdnccasénceoasetecuss 3,4, 9

iV

Larson v. Domestic & Foreign Commerce Corp., 337

RIE See RENE mee ap er 11, 15

Loretto v. Teleprompter Manhattan CATV, 423 N.E. 2d

320 (1982 N.Y.), reversed, 458 U.S. 419 (1982)... 24

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

RIE RES ee CR r=. 1A 27

Lynch v. United States, 292 U.S. 571 (1933)....... ...... Y

Martino v. Santa Clara Valley Water Dist., 703 F.2d

I Ro du ekaneiudeees 21

McCulloch v. Maryland, 4 Wheat. 316 (1819)........ 17-18

Meigs v. McClung’s Lessee, 9 Cranch(US) 11(1815)...... 11

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

TL << oas chaussenppeadsdaesuwanackhiiebeks 23

Miss. & Rur River Boom Co. v. Patterson, 98 U.S. 403

Ee as ea te ets a ie eck vaindints 16

Mosher v. Phoenix, 287 U.S. 29 (1932) ............ «2... 15

New York Telephone Co. v. North Hempstead, 363 N.E.

i ia ak ebisi 24

Orsetti v. Fremont, 80 Cal.App.3d 961, 146 Cal. Rptr. 75

DRIER Ng Same Seer ee nae Tene See 6

Owen v. City of Independence, 445 U.S. 622 (1980)...... 5

Pamel Corp. v. Puerto Rico Highway Auth., 621 F.2d 33

a a ld cu 21

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

a a ee aa ane 3

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

J dialed nail dbuaiedan tain atains neidas Ganesan 14, 27

Perkins v. Standard Oil Co. 395 U.S. 642 (1969).......... 7

Pioneer Land & Gravel v. Anchorage, 627 P.2d 651

IE TE et EN ERED Fee OS B 22

Regional Rail Reorganization Act Cases, 419 U.S. 102

RRS SSS Sree ee ea ee 9, 10, 16

Rescue Army v. Municipal Coun, 331 U.S. 549(1947).... 18

Rippley v. City of Lincoln, 330 N.W. 2d 505 (1983,

Ie ccpca eaid ill 35 da codes alate duel ie aad 21-22

Ruckelshaus v. Monsanto Co.,_____ ~U.S.___, 104 S. Ct.

Bene (ISSF) ............. 3, 4,10, 11, 12, 13, 14, 15

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

PI a oe eae Gi ee passim

Seaboard Air Line Ry. v. United States, 261 U.S. 299

ER foci. os PEEP EDS STOOL eR ORT EAE 16

Seuss Builders v. Beaverton, 656 P.2d 306 (1983,

RET SRE CR eerie See AONE ERC Nem 22

Sheer v. Township of Evesham, 445 A.2d 46 (1982, N.J.

RIERA Bev te ae My le Mc ys ey Aer tee SO aR 23

Sinclair Pipeline Co. v. Village of Richton Park, 167 N.E.

SE a an eo ee 18

6th Camden Corp. v. Evesham Township, 420 F.Supp.

ESERIES Ree cee nega 8

Spector Motor Service v. McLaughlin, 323 U.S. 101

RE ee Te es en A PRR a SOc 18

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

ails dee cascducsensss 6

United States v. Causby, 328 U.S. 256 (1946) ........... 14

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

ER AR Ae RES EEE A ee en 10

United States v. Dickinson, 331 U.S. 745 (1947)........ 13

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

SE isl cunueniauuidy cairn dicanieutaladusuaddagemaes< exudes 11

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

Ry aeegpem sere ak Meee Wena SH ere 10

United States v. Lynah, 188 U.S. 445 (1903)............. 14

United States v. Mitchell, 445 U.S. 535 (1980) .......... 15

United States v. New River Collieries, 262 U.S. 341

Tisch cciett abeka laden sbecakondddanahieiaicenieneuneens 16

United States v. Testam, 424 U.S. 392 (1976) ........... 15

United States Trust Co. v. New Jersey, 431 U.S. 1

ae icant unt itiaiab ts ee adel sa iaioeds 6,9

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

Tn eT ae nee a ee en 23

Village of Willoughby Hills v. Corrigan, 278 N.E. 24658

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

Corrigan, 409 U.S. 919 (1972), Douglas J., dissent-

vi

Watson v. Memphis, 373 U.S. 526 (1963).................. 6

Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 15

Sib icabiddccnditdaipeniiaadacwstsomnaibaeteures 11

Wheeler v. City of Pleasant Grove, 664 F.2d 99 (1981,

odie lcubinttusse canicieeceessaseue . 21

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

I a a aN ae ah alta 3, 10, 11, 13

Zinn v. State, 334 N.W. 2d 67 (1983, Wis.).............. 21

Constitutions

United States Constitution

Nc usauaceden 11, 12, 14

nn oe esbeabacesn eee’ 11

Statutes

28 United States Code

Ried) cccach edt Nedssdanusbeupescendcscoananiaiies 15

ST nc ck U aca deubhnchsaneoncdausscesncupaanmedade 15

42 United States Code §1983.................... 3, 4, 15, 21

Se cdeembacecnaae 13, 14, 15

Other Authorities

Badler, Municipal Zoning Liability in Damages — A

New Cause of Action, 5 Urban Law. 25 (1973) .... 22

Bauman, The Supreme Court, Inverse Condemnation

and the Fifth Amendment: Justice Brennan Con-

fronts the Inevitable in Land Use Controls, 15

Re 8 eee 22, 26

Berger, The State’s Police Power Is Not (Yet) the Power

of a Police State: A Rep!y to Professor Girard, 35

Land Use Law & Zoning Digest 4(May 1983)... 22

Berger, To Regulate or Not to Regulate — Reflections on

the Supposed Dilemma Between Environmental

Protection and Private Property Rights, 8 Loyola

Re Sy PIN ss ons levses hier isnesiscvciee. 22

Frieden, ““The Environmental Protection Hustle,” 1979,

kT ae EL ene SRI rie RPA EE ED oR 2

Vii

Kanner, Inverse Condemnation Remedies in an Era of

Uncertainty, 1980 Institute on Planning, Zoning

and Eminent Domain, Southwestern Legal Founda-

tion, at pp. 195-206

Katz and Rosen, The Effects of Land Use Controls on

Housing Prices, at p. 47, Working Paper 80-13,

Center for Real Estate and Urban Economics,

University of California, Berkeley....................... ~

McMurry, Just Compensation or Just Invalidation: The

Availability of a Damages Remedy in Challenging

Land Use Regulations, 29 UCLA L. Rev. 711

PR RS eo ST ad SR 22

Report of the President’s Commission on Housing (1982),

«Chap. 13, “Government Regulation and the Cost of

NE oO PPO iris cainnnnanccuvdcecccvccescccee 2

Stoebuck, Conaemnation of Rights The Condemnee

Holds in Lands of Another, 56 lowa L. Rev. 293

RE ee SSR ne Oe de 6

Richard F. Babcock, ‘“‘The Zoning Game,” (Univ. Wisc.

SE I aa cs dvcecucnddeunces 4,19

Tucker, ‘Progress and Privilege: America in an Age of

Environmentalism’, (Anchor Press/Doubleday 1983)

No. 84-4

In the Supreme Court of the

United States

WILLIAMSON COUNTY REGIONAL

PLANNING COMMISSION, ET AL.,

Petitioners,

v.

HAMILTON BANK OF JOHNSON CITY,

Respondent.

BRIEF OF

CALIFORNIA BUILDING INDUSTRY ASSOCIA-

TION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

With consent of the parties, The California Building Industry

Association (CBIA) respectfully submits this brief as amicus

curiae in support of the Respondent.

INTEREST OF AMICUS CURIAE

AND NATURE OF THE PROBLEM ADDRESSED

CBIA is an umbrella organization representing some 5,000

company members of seven regional Building Industry Associa-

tions throughout California. As an organization of homebuilders,

CBIA is vitally concerned with the impact of harsh ‘and use

regulations which, however motivated, at once impact adversely

on its members’ economic interests and on the availability of

housing, particularly housing that is affordable *o those in the

lower income brackets and increasingly to the middle class. !

CBIA is concerned that , as is alarmingly evident in California

(but by no means confined to it), harsh land use restrictions

ofien simply prevent housing construciion and thus effectively

bar entry not only into desirable suburbs, out also into

homeownership altogether by the young, the m’ddle class, and

particularly minorities. For 1n enlightening, concise and lucid

insight of a noted scholar into the gritty realities of the use of

professedly high-minded land use regulations, see Frieden,

“The Environmental Protection Hustle,” 1979, MIT Press,

passim. On a more philosophical level, see Tucker, ** Progress

and Privilege’ America in an Age of Environmentalism”,

Anchor Press/Doubleday, 1982.

In sum, CBIA finds itself in a position where in the context of

the issues at ber.ch, the self-interest of its members coincides

with the interest of the population in the area served by it, and —

it is forcefully submitted — with the public interest. In the final

analysis, CBIA is interested in building homes for people who

need them. So is a growing segment of the population that is

priced out of home ownership, and thereby sentenced, as it

were, to protracted or permanent status as a sort of an

apartment renter underclass.” It is in the public interest to

provide increased — not shninken —- housing opportunities for

'It is by now a fact of judicially noticeable proportions that

California has the most expensive housing in the Nation. Much of this

cost, some 18-20% in the San Francisco Bay area, for example, is

attributable to land use regulations, such as growth controls and

moratoria. Katz and Rosen, The Effects of Land Use Controls on

Housing Prices, at p.47, Working Paper 80-13, Center for Real

Estate and Urban Economics, University of California, Berkeley.

The problem, moreover, is increasingly present beyond California;

see Report of the President's Commission on Housing (1982),

particularly Chap. 13, “Government Regulation and the Cost of

Housing’, pp. 1-5 et seq.

2See Euclid v. Ambier Rec'ty Co., 272 U.S. 365, 394-395 (1926).

es

that population. Effective — not theoretical — remedies for

excessive, use-stultifying !and use regulations will help provide

such opportunities.

SUMMARY OF ARGUMENT

CBIA respectfully urges that the court reject the dogmatic

importunings of the Petitioner and its amici, of the tenor that

“just compensation” expressly provided for by ihe Takings

Clause of the Constitution, or damages explicitly authorized by

42 U.S.C. § 1983,3 nonetheless be made unavailable for

regulatory takings. It is respectfully suggested that the Court

reaffirm instead the pragmatic and flexible approach which

(depending on the factual circumstances of the governmentally

- inflicted wrong) would provide damages 4, or in cases where

the government acts wholly extra-legally and the harm is purely

prospective, specific relief 5,or a combination of both, as

outlined in Mr. Justice Brennan’s opinion in San Diego Gas &

Elec. Co. v. City of San Diego, 450 U.S. 621i (1981).

The reasons for the position espoused by this amicus are:

First, the “‘just compensation” remedy is explicitly provided

for in the Constitution, and is as surely applicable to partial and

temporary takings as to others.®

3Since § 1983 explicitly provides for “‘an action at law,” one is

baffled how such arguments are made with a straight face (see e.g.

Brief of California, et al., at p. 20; cf. Brief of St. Petersburg, at pp. 27-

28, fn. 68). See Lake Country Estates v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979).

4*Ruckelshaus v. Monsantc Co., __. U.S. ___, 104 S. Ct. 2862,

2880{ 8] (1984).

5Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

6In Penn Central Transp. Co. v. New York City, 438 U.S. 104,130

(1978), this Court observed that “ ‘[t]aking’ jurisprudence does not

divide a single parce: ‘ato discrete segments and attempt to Jetermine

whether rights in a particular segment have been entirely abrogated”’.

In the ad hoc factual context of that case, that was a reasonable

expression, because there the owner had already improved the entire

site with a major building which concededly produced a reasonable

Second, alinough ignored by Petitioner and its amici, this

Courts’ precedents on the issue of remedies for uncompensated

takings, beginning at least with Hurley v. Kincaid, 285 U.S. 95

(1932), and continuing through Ruckelshaus v. Monsanto Co.,

supra, 104 S. Ct. at 2880 [8], decided only last term, make it

crystal clear that just compensation is the preferred remedy

because it tends to make the aggrieved citizen whole, while

permitting the governmental entity to pursue” . . . the accomplish-

ment of irnportant governmental ends .. .”’ (Hurley v. Kincaid,

supra, 285 U.S. at 104, fn. 3).? Moreover, 42 U.S.C. § 1983

provides for damages in case of regulatory land use takings: see

Lake Country Estates, Inc. v. Tahoe Regional Planning

Agency, supra.

Third, as astutely noted by Mr. Justice Brennan, on-

monetary remedies tend to be ineffective, and provide enormous

opportunities for governmental entities to drag their feet (or

even to actin bad faith); see San Diego Gas & Elec. Co. v. City

of San Diego, supra. 450 U.S. ai 655, fn. 22) 8.

Fourth, specific remedies require the courts to be telling

regulatory entities on an ongoing basis how they may and may

not regulate; injunctive relief requires judicial oversight and

return. But that hardly justifies the transplantation of the quoted

metaphor into the context of the government simply taking a part of an

unimproved tract of land, and in effect saying to its owner: ““We don’t

have to pay, because we only took a part of your land, leaving you

some residue”. See American Savings & Loan Assn. v. County of

Marin, 653 F. 2d 364 (198i 9th Cir.).

7For a concise summing up of Hurley and its progeny through

1974, see Kanner, Inverse Condemnation Remedies in an Era of

Uncertainty, 1980 Institute on Planning, Zoning and Eminent

Domain, Southwestern Legal Foundation, at pp. 195-206. Since then

the Court has adhered to this settled approach to remedies for takings

in Dames & Moove v. Regan, 453 U.S. 654, 689, 691 (1981), and

Ruckelshaus v. Monsanto, supra.

8The inefficacy of specific remedies was also noted by Richard F.

Babcock, in his widely acclaimed book, ““The Zoning Game,”’ at p.

13. See footnote 23, infra.

continuing enforcement, thereby embroiling courts far more

deeply in complex and varying land regulation schemes replete

with overtly pursued local politics, than would the relatively

simpler decision whether a particular regulatory scheme took a

“stick” from the landowner’s bundle of rights, thus requiring

recompense. Moreover, there is a greater tendency to compromise

monetary claims, whereas non-monetary ones provide incentives

to defendants to litigate to the bitter end because it is cheaper

(particularly where defense lawyers are salaried as muncipal

lawyers often are).

Fifth, as explicii_y recognized by the Court in Owen v. City of

Independence, 445 U.S. 622, 651 (1980), the imposition of

compensatory damages not only effectively redresses the

wrong (and indeed is the only way of doing so where economic

injury has already occured), but a!so provides a wholesome

deterrent to future constitutional wrongdvine,

Sixth, the cries of fiscal doom emanating from some of

Petitioner’s amici (see e.g., Brief of New York City, passim),

are little more than self-serving importunings that this Court

make constitutional violations cheap and convenient. They are

unworthy suggestions that the Court opt for chilling constitu-

tional rights in preference to “chilling” (i.e., providing disincen-

tives to) unlawful official conduct that is quite deliberately

designed to constrict those constitutional rights to their absolute

minimum and indeed beyond.? This Court has repeatedly

°This is no hyperbole. Petitioner's amici demand for themselves

“freedom” to experiment with “innovative” (read “confiscatory”’)

land use restrictions. But the worst that the “innovators” want for

themselves, should they infringe on the Constitution, is a judicial tut-

tut of the ‘you shouldn’t have done it” genre, followed by another go

at the hapless owner (see e.g. Brief of California et al., p. 1, which

importunes this Court to put the fox in charge of the chicken house).

That is no more than the pursuit of the proverbial free lunch; see San

Diego Gas & Electric Co., supra, 450 U.S. at 652. Please bear in

mind that in this very case the original developer went under by

foreclosure. This is no fluke; California law alone is replete with cases

in which owners lost their property by foreclosure while being

“regulated” to death. See, e.g., Jacobson v. Tahoe Regional Plan-

6

rejected the odious notion that constitutional ‘iolations should

be tolerated because that may be cheaper: Watson v. Memphis,

373 U.S. 526, 537 (1963), United States Trust Cc., v. New

Jersey, 431 U.S. 1, 28-29 (1977), San Diego Gas & Electric

Co. v. San Diego, supra, 450 U.S. at 661 (Brennan, J.

dissenting). More importantly, the ostensibly feared large

judgments can threaten only if there have been large-scale,

serious violations of constitutional rights. If so, all the more

reason for this Court to provide disincentives to such conduct.

As a noted commentator put it in another context, the “‘just

compensation” guarantee does not extend only to cases where

the taking is easy and cheap; indeed, the need for compensation

is greatest where the loss is greatest. Stoebuck, Condemnation

of Rights The Condemnee Holds in Lands of Another, 56

Iowa L. Rev. 293, 307 (1970).

Finally, clear recognition by this Court of limits on local

regulatory powers that destroy private property rights, and the

concurrent imposition of effective remedies making the victim

whole and deterring future wrongdoing, will have the wholesome

effect of balancing the social scales. After all, this isn’t 1954;

Rachel Carson’s concerns for the environmert are no longer a

lone cry in the wilderness. In the ensuing quarter-century,

environmentally inspired regulations have proliferated, and are

now applied by a forraidable array of powerful governmental

bureaucracies armed to the teeth with far-reaching regulations

imposed by a tough enforcement apparatus. The environmental

movement has come of age, and like all other powerful forces in

a free society must recognize its own limitations as well as

responsibility to its victims. That is no more than a decent

foundation on which a just society must ultimately rest. In

ning Agency, 566 F.2d 1353, 1366-1367 (1978, 9th Cir.); Orsetti v.

Fremont, 80 Cal.App. 3d 961, 146 Cal.Rptr. 75 (1978); Hollister

Park Investment Co. v. Goleta County Water Dist., 82 Cal.App. 3d

290, 147 Cal. Rptr. 91 (1978); Frisco Land & Mining Co. v. State,

74 Cal.App. 2d 736, 141 Cal.Rptr. 820 (1977); County of Los

Angeles v. Berk, 26 Cal.3d 201, 161 Cal.Rptr. 742, 605 P.2d 381

(1980); Toso v. City of Santa Barbara, 101 Cal.App. 3d 934, 162

Cal.Rptr. 210 (1980).

short, it is time to strike a balance between regulatory ends and

constitutionally respectable means. A recognition tuut the

victim of an overzealous regulatory process is entitled to

recompense for demcnstrable losses, will tend to accomplish

just that.

ARGUMENT

PRELIMINARY STATEMENT:

WHAT IS THE ISSUE BEFORE THE COURT?

While an amicus must perforce take the case as the parties

have made it, there is nonetheless an unusual problem that

presents itself at bench. Petitioner’s briefing appears to be a

candid effort to reargue the raw evidence favorable to itself, as if

it were before a new trier of fact in the first instance (compare

Perkins v. Standard Oil Co. 395 U.S. 642, 648 (1969), and

Gold v. National Sav. Bank, etc., 641 F.2d 430, 434(1981),

6th Cir.)). The result of such unorthodox approach by Peti-

tioner is to leave an amicus somewhat uncertain as to the

precise issues Petitioner means to address.!°

In spite of such difficulties, at the very least the following

appears. The lower courts have applied Tennessee law (either

correctly or in a manner acquiesced in by Petitioner) to hold

that it was unlawful for Petitioner to prevert construction of

Respondent’s subdivision under the 1973 regulations, thereby

preventing economically viable use of the affected land.'!

10] ¢., Petitioner’s first Question Presented (Pet Br., p.i) disparages

the lower courts’ treatment of adjudicated facts, while the third

Question Presented candidly quarrels with the lower courts’ resolu-

tion of disputed evidence that led to the finding of estoppel, even

though Petitioner has affirmatively acquiesced in the estoppel judg-

ment by (a) not seeking appellate review thereof, and (b) by

entering into an agreement (Pet. Br., Appendix, pp. 35-39) implementing

that aspect of the District Court’s decision and thereby rendering any

argument on that issue moot.

'lAs the opinion below makes clear (729 F. 2d at 403) there was

substantial evidence that in 1973 the Planning Commission gave

written approval for 736 units, but later reneged. Any dispute thereon

Thus, the only legal issue properly raised — as opposed to

rearguing disputed facts adjudged against and acquiesced in by

Petitioner — is what is the nature of the remedy to be granted

Respondent for the years of unlawful denial by Petitioner of

economically viable use of the Respondent’s land. To put it

another way, the question is one of remedies for the time

Respondent was deprived of economically viable use of its

property. Since such deprivation is now irretrievably in the

past, it seems to amicus that this puts the case at bench into the

“damages or nothing” posture (Bivens v. Six Unknown etc.

Agents, 403 U.S. 388, 410 (1971) (Harlan, J., concurring))

insofar as Petitioner’s serious interim economic losses for the

period of use deprivation are concerned.'? To channel the

court’s efforts into any “invalidation’’ discourse now — as

urged by Petitioner and its amici — would lead to an academic

exercise in mootness: i.e., how does a court “invalidate”

something which has already irreversibly occurred? How do

losses already suffered ‘““unhappen’’?

was resolved by decisions of the trier of fact — both judge and jury —

against Petitioner, but Petitioner did not appeal therefrom; on the

contrary, Petitioner voluntarily entered into an agreement imple-

menting that aspect of the case, thus giving rise to a situation closely

analogous to Donovan v. Penn Shipping Co., 429 U.S. 648 (1977).

The question of the lawfulness of Petitioner's conduct is thus at this

time finally resolved against it, and disputations thereon barred by a

judgment long since final, as well as mooted by Petitioner's voluntary

implementation thereof (see Pet. Br., Appendix, pp. 35-39).

'2The issue is hardly new. See Gordon v. City of Warren, 579 F.2d

386 (1978 6th Cir.), 6th Camden Corp. v. Evesham Township, 420

F. Supp. 709, 727-730 (D.N.J. 1976), recognizing the right to

constitutionally-based damages for temporary deprivation of eco-

nomically viable use of land, pending the owner’s judicial establish-

ment that the deprivation was unlawful under state law. Accord,

Keystone Associates v. State, 333 N.Y.S. 2d 27 (App.Div. 1972),

aff'd. 307 N.E. 2d 254 (N.Y. 1973).

THIS COURT'S HISTORY OF EXPLICIT RE-

COGNITION OF THE “JUST COMPENSA-

TION” REMEDY FOR TAKINGS, AS AVAIL-

ABLE AND PREFERRED, IS LONGSTAND-

ING AND THOROUGHLY SETTLED.

The supposed proposition pressed on the Court (that in cases

of takings the “‘traditional’’ remedy is invalidation or enjoining

of the confiscatory governmental conduc?) is simply a myth

which, like all mythology, derives its sustenance from a

disregard of reality. The fact is that this Court has dealt with the

issue of remedies for uncompensated takings over a half-dozen

times, and those decisions opt for the monetary remedy of

inverse condemnation, as primary. Petitioner and its amici

have simply ignored all that decisional law,'? and, save for

vigorous self-serving arguments, have not suggested any legit-

imate reason why this Court should suddenly depart from

the sound and settled analysis outlined by Mr. Justice Brandeis

in Hurley v. Kincaid, 285 U.S. 95 (1932), and followed ever

since.

13An egregious example of svch disregard is provided at pp. 6-7 of

the amicus brief of California et al., where not only does Petitioner’s

friend ignore virtually all pertinent precedents of this Court, but it also

has the temerity to charge Respondent with advancing “fiction”. Of

course, case law is to the contrary, and speaks for itself, belying in the

process California’s assertion that this Court has permitted the just

compensation remedy only in cases of physical seizure, which is

demonstrably not so; see Lake Country Estates, Inc. v. Tahoe

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

Rail Reorganization Act Cases, 419 U.S. 102 (1974); Dames &

Moore v. Regan, 453 U.S. 654, 688-689 (1981); also see United

States Trust Co. v. New Jersey, supra, 431 U.S. 29, fn. 27, and

accompanying text. At times, the property right in question (e.g., a

lien) is incapable of physical seizure, but it is protected by the ‘just

compensation” clause just the same — Armstrong v. United States,

364 U.S. 49 (1960). The same is true of contractual rights: Lynch v.

United States, 292 U.S. 571, 579 (1933).

10

It is difficult to see how this Court could have been c!earer,

when at the end of last term it unequivocally held in Ruckelshaus

v. Monsanto Co., supra, i04 S. Ct. at 2880 [8]:

‘Equitable relief is not available to enjoi': an alleged

taking of private property for a public use, duly

authorized by law, when a suit for compensation can

be brought against the sovereign subsequent to the

taking”’ (citations and footnote omitted).!4

Of course, Ruckelshaus was merely the most recent manifes-

tation of a settled line of decisions going back at least to 1932:

Hurley v. Kincaid, supra, 285 U.S. 95; Dugan v. Rank, 372

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

Regional Rail Reorganization Act Cases, *19 U.S. 102

(1974); Dames & Moore v. Regan, 453 U.S. 654, 688-629

(1981). Also see, United States v. Gerlach Live Stock Co.,

339 U.S. 725, 752-753 (1950) (held: state police power

rendered property right unenforceable by injunction, but could

not obviate constitutional obligation to pay just compensation

for its actual extinguishment).

It is equally well settled that it is only in those rare cases

where a government official attempts to act but, as it turns out,

the act is whoily extralegal (i.e., the claimed power to ac. does

not stem either from the Constitution directly, nor is it authorized

'4A seemingly inconsistent assertion appears in footnote 12, in

United States v. Central Eureka Mining Co., 357 U.S. 155, 166

(1958). However, the only authority cited there in support is

Youngstown Sheet & Tube Co., v. Sawyer, supra, 343 U.S. 579,

which, of course, dealt with a prospective, wholly extralegal seizure,

rather than an already accomplished taking un‘er otherwise proper

powers. To the extent the terse footnc 'e assertion in Central Eureka

is inconsistent with the fully considered holding in Ruckelshaus v.

Monsanto Co., the former must undoubtedly be deemed overruled

sub silentio by the latter. However, the two expressions need not

necessarily be viewed as inconsistent, when the prospective vs.

accomplished nature of the respective types of takings is kept in mind.

Moreover, the Central Eureka footnote addresses “arbitrary govern-

mental action” rather than a taking; the two, of course, may, but need

not be the same.

1]

by legislation) that injunctive relief becomes available to

restrain a prospective taking. Youngstown Sheet & Tube Co. v.

Sawyer, supra, 343 U.S. 579, Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682, 689-691 (1949). Of course,

where a taking (i.e., deprivation of the owner, not necessarily

accretion of any formal interest to the taker — United States ».

General Motors Corp., 323 U.S. 373, 377-378 (1945)) hus

actually occurred, it has been held from the outset that the

government, as a creature of the Constitution. cannot even form

the intent (much less act on it) to deprive an individual of

property without just compensation. Meigs v. McClung’s

Lessee, 9 Cranch (US) 11, 18 (1815). Also, see Armstrong v.

United States, 364 U.S. 40, 42 (1960) (held: Where govern-

ment obtained benefit of property, it had to pay just compensation ‘

for deprivation of private liens therein irrespective of its

“. . . intent or purpose. . .”’).

To the above discussion one must add the teaching of

Ruckelshaus that in inverse as well as direct taking cases the

police power and taking power are coterminous (104 S. Ct. at

2879). That perforce means that when a regulatory gcvernmental

entity chooses to regulate within its general powers to promote

police power objectives of public health, safety, welfare or

morals, it thereby establishes a legitimate objective!> that is

entitled to the same degree of judicial deference as the avowed

pursuit of the err ‘nent domain power for a public purpose; see

Hawaii Housing Authority v. Midkiff __. U.S. ___., 104 S.

Ct. 2321, 2329 (1984); Ruckelshaus, supra, 104 S. Ct. at

2879. Since the judiciai role in ‘*second-guessing the legislature”

is held by these authorities to be extremely narrow, it follows

that a regulaiory taking effected by an overreaching statutory

application is in every constitutional sense a taking for public

use, for which compensation is mandated by the Fifth Amend-

ment (binding on the states through the Due Process Clause of

the Fourteenth Amendment — Webb's Fabulous Pharmacies

v. Beckwith, 449 U.S. 15, 160 (1980)). Put another way, when

regulators take the position that their regulation promotes the

'SAs opposed to wholly extralegal prospective acts as in Youngs-

town Sheet and Tube Co., supra.

12

police power objectives, and as such is entitled to judicial

deference for purposes of its validity, they cannot simultaneously

assert when their regulation effects a temporary taking, then the

regulation suddenly becomes so unimportant that the courts

should disregard the teachings of Midkiff and Ruckelshaus,

eschew all deference to the legislature, and as a matter of

routine simply invalidate the regulation — as a first, not last,

resort — merely to spare the regulators the need of obeying the

weighty “just compensation” command of the Fifth Amendment.

Such an argument is simply self-contradictory; it just won't

wash. “. . . [P]ower, once granted does not disappear like a

magic gift when it is wrongfully used.” Bivens v. Six Unknown

etc. Agents, supra, 403 U.S. at 392.

In sum, in spite of expansive assertions, Petitioner and

friends are unable to put their finger on any holding of this Court

that where a taking has already occurred, the “remedy” shoula

be the ineffective and acaden.ic exercise of telling the wrongdoer

through a court decree that it shouldn’t have done what it

already dia, leaving the victim uncompensated for serious

economic losses already inflicted. Petitioner and friends are

unable to do so because no such unjust cases are extant, as

shown above, this Court has historically opted for effective

compensatory remedies as part of its remedial arsenal, and

has done so consistently in physical as well as non-physical -

takings (see footnote 13, supra). No legitimate reason appears

why that reasoned and mature doctrinal approach to the taking

problem should be suddenly abandoned now.

til

THE ACTS OF PETITIONER WERE WITHIN

ITS POWERS, EVEN IF THE MANNER OF

EXECUTION EXCEEDED CONSTITUTIO-

NAL LIMITS.

Two points need tc be touched on briefly in connection with

the law of remedies discussed above.

First, Ruckelskaus, supra, speaks of takings of property

“|. duly authorized by law. . .” Does that mean that there

ee nee

13

must be express authorization of the taking qua taking?!®

The short answer to this question was provided by this Court

in Davis v. Newton Coal Co., 267 U.S. 292, 301 (1925): “The

incantation pronounced at the time jof taking] is not of

controlling importance; our primary concern is with the accomp-

lishment.”!? Likewise, Hughes v. Washington, 389 U.S. 290,

298 (1967): “ . .. The Constitution measures a taking of

property not by what a State says, or what it intends, but by

'6This issue bears comment in light of the ingenious assertion in the

Brief of the United States, that when government action is “‘not

authorized’’, no “‘taking’’ can result. The vintage case of Hooe v.

United States, 218 U.S. 322 (1910) relied on by the Solicitor

Generai is simply not on point because there the Congress expressly

refused to appropriate a $6,000 annual rent, whereupon the claimant

rented the premises to the government for $4,500 ( which he accepted)

and sued on the balance. What that has to do with the ad hoc factual

analysis requized at bench (Kaiser Aetna v. United States, 444 U.S.

164, 174-175 (1979)) is obscure. With respect, the Solicitor General

seems to confuse those cases where the action is wholly extralegal and

hence the officials are without any power to act at all (e.g,

Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S. 579), and

those cases where the power to act exists, but the illegality springs

from failure to authorize payment of just compensation (Hurley v.

Kincaid, supra, Ruckelshaus v. Monsanto Co., supra), thereby

triggering a constitutional remedy (Jacobs v. United States, 290 U.S.

13, 16 (1933)).

'7Another answer is provided by the fact that the Tucker Act

provides a procedure for recovering compensation from the govern-

ment for claims arising under the Constitution. Jacobs v. United

States, supra, 290 U.S. at 16. But if it were first necessary to show

that the governmental act was “‘authorized”’ (in the sense of the taking

being authorized rather than the governmental act that led to the

taking) that would make self-stultifying nonsense out of the Tucker

Act, for then a claim under the Constitution wouid be of no avaii,

and the claimant would be limited to claims under statutes “ authori-

zing’ the taking. Compare United States v. Dickinson, 331 U.S.

745, 748-749 (1947). Put another way, if the taking itself first had to

be authorized by legislation, there could never be an inverse

condemnation case. Yet, this Court’s many precedents and the daily

busir.ess of the U.S. Claims Court bear striking witness to the

contrary.

14

what it does (Stewart, J. concurring, emphasis in the original.)

See, San Diego Gas & Electric Co., supra, 450 U.S. at 652-

653. Thus, in United States v. Lynah, 188 U.S. 445 (1905), the

“authorized” governmental act was the construction of a dam,

not appropriation of the plaintiffs’ land. And in United States v.

Causby, 328 U.S. 256 (1946), the “‘authcrized” act was the

flight of aircraft through navigable airspace, not an appropriation

of a flight easement. Yet both were deemed compensable

takings because that was required by the Fifth Amendment. Or.

as this Court put it in Hurley v. Kincaid, supra, 285 U.S. at

104:

“For even if the defendants are acting illegally,

under the Act, in threatening to proceed without first

acquiring flowage rights over the complainant’s la..a,

the illegality, on complainant’s own contention, is

confined to the failure to compensate him for the

taking, and affords no basis for an injunction if such

compensation may be procured in an action at law”

(footnote omitted).

In sum, the illegality of governmental conduct at bench, as in

Hurley, did not consist of any absence of authority to act!8, but

rather of acting in pursuance of such authority in an excessive

way that deprived Respondent of any economically viable use

of its land for the duration of the illegal conduct.

A second aspect of Ruckelshaus (and kindred cases) that

warrants mention, is the Court’s familiar inquiry into the

availability of the Tucker Act remedy, which finds no application

in cases suci: as this, where the taking arises by conduct of state

rather than federal entities. All the Tucker Act does is waive the

United States’ defense of sovereign immunity, and designates a

special court for monetary claims in excess of $10,000. The

'8Quite the contrary. Petitioner vigorously asserts lawful posses-

sion of the police power to regulate subdivisions, which is not

disputed. The controversy is over the way in which Petitioner wielded

its plainly and concededly present authority. In other words, Peti-

tioner’s authority was not lacking; rather, it went “‘too far’ (Penn-

sylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).

15

Tucke; Act in no way gives rise to a cause of action;!? itis“...

only a jurisdictional statute; it does not create any substantive

right...” “*... itmerely confers jurisdiction upon [the Claims

Court] whenever the substantive right exists . . .”, United

States v. Mitchell, 445 U.S. 535, 538-539 (1980). Accord,

United States v. Testam, 424 U.S. 392, 398 (1976).

None of these concerns, however, have any applicability to

lawsuits in federal courts against state and local! defendants, for

there jurisdiction is provided by 28 U.S.C. §1331 and 28

U.S.C. § 1343, and the substantive right of recovery at law by

the Constitution and 42 U.S.C. § 1983. Indeed, it has long been

settled that federal courts do have jurisdiction to entertain on

the merits claims of takings by local entities. Cuyahoga

River Power Co. v. Akron, 240 U.S. 462 (1916), Mosher v.

Phoenix, 287 U.S. 29 (1932)

IV

PRESERVATION CF THE RIGHT TO JUST

COMPENSATION FOR * EMPORARY TAK-

INGS AS PART OF A FLEXIBLE AND FAIR

SYSTEM OF REMEDIES RESTS ON SOUND

POLICY, SETTLED PRECEDENT, AND CON-

SERVATION OF JUDICIAL RESOURCES.

Any argument on the issue of remedies must at least begin

with this Court’s definitive analysis in Hurley v. Kincaid,

supra, 285 U.S. 95, which is conceptually dispositive. When a

taking is effected in pursuance of governmental powers --- as is

the case at bench — the property owner’s grievance arises not

19Indeed, neither does it give rise per se to any particular remedy.

What the Tucker Act does, is provide the jurisdictional and pro-

cedural means of pursuing a constitutionally mandated monetary

remedy for a pre-existing substantive, constitutional “cause of

action”; i.e., a completed taking of a property interest. Jacobs v.

United States, supra, 29 U.S. at 16. Where such monetary remedy

at law is adequate, this 1vxecloses equitable relief (Hurley, 285 U.S.

at 104; Ruckelshaus, 104 S. Ct. at 2880 [8]). For further discussion

of the Court’s analysis of the law of remedies, see Larson v. Domestic

and Foreign Commerce Corp., 337 U.S. 682 (1949).

16

because of the taking,2° but because compensation has not

been paid (285 U.S. at 104). It follows, therefore, that if

compensation is provided by the courts (whether at the

government s or the owner’s behest) the illegality is elimina. =d

(Id.). Moreover, it is the courts that are have primacy in

determining just compensation; see, e.g. United States v. New

River Collieries, 262 U.S. 341, 343 (1923); Seaboard Air

Line Ry. v. United States, 261 U.S. 299, 304 (1923).

Nor did Hurley stop there; it went on to admonish:

“Even where the remedy at law is less clear and

adequate, where large public interests are concerned

and the issuance of an injunction may seriousiy

embarrass the accomplishment of important govern-

mental ends, a court of equity acts with caution and

only upon a clear showing that its intervenuon is

necessary to prevent an irreparable injury.” 285

U.S. at 104, fn. 3.

That admonition, of course, puts its finger on the pertinent

policy: it would be most improvident to structure a constitu-

ti nal imperative striking down potentially vital regulations, as

the sole remedy, merely because they impacted on a property

owner so as to deprive him of a “stick” in his property rights

“bundle”. The Regional Rail Reorganization Act Cases,

supra, provide an excellent example of the hazards inherent in

Petitioner's theory. Had such a theory been applied there (as

indeed it was by the trial court, only to be rejected by this Court)

the upshot would have been an instant destruction by the stroke

of a judicial pen of a comprehensive congressional scheme, that

would have left the most densely populated regions of the

country without an effective rail transportation system, with

eight major railroads in the throes of fragmented, individual

bankru;-tcy proceedings, without a coherent system whereby to

20This is so because the taking power is an inherent attribute of

sovereignty (Koh/ v. United States, 1 Otto (U.S.) 367 (1876)); the

Constitution only limits it, inter alia, by requiring that just compensa-

tion be paid. Miss. & Rum River Boom Co. v. Patterson, 98 U.S.

403, 406 (1878).

17

consolidate and make optimally useful all of their combined

resources, still needed to maintain a national rail transportation

system. The same is true of Dames & Moore v. Regan, supra.

Had Petitioner's no-compensation approach been applied

there, the result wouid have been a drastic d'sruption of the

executive power to conduct foreign relations, with severe

consequences to the affected citizens. Instead, the Court's

opting for availability of the compensation remedy preserved

both the governmental policies, and the rights of the few

adversely affected individuals. While the instant controversy

does not present the Court with such far-reaching prospects as

the above cases, it still should not serve as a vehicle for the

formulation of a dogmatic constitutional imperative that in

future applications would compel judicial destruction of regula-

tory scheines that some day may be vital to national survival.?!

As Mr. Chief Justice Marshall enduringly put it:

“The subject is the execution of those great powers

on which the welfare of a nation essentially depends.

It must have bee~ the intention of those who gave

these powers, to insure, as far as human prudence

could insure, their beneficial execution. This could

not be done by confiding the choice of means to such

narrow limits as nox to leave it in the power of

Congress to adopt any which might be appropriate,

and which were conducive to the end. This provision

is made in a constitution intended to endure for ages

tc come, and consequently, to be adapted to the

varicus crises of human affairs.” McCulloch vy.

2!This is no hyperbole. Surely, it takes no vivid imagination to

visualize governmenta! responses to the difficult problems of energy,

deficit control, and inflation, for example, that may trench on

constitutionally protected property rights of some individuals. Should

that occur, which would be better public policy: to require the

benefited public to pay only for those limited private rights destroyed

in the process of thus bettering the public condition (see San Diego

Gas & Electric Co., 450 U.S. at 652), or to declare such programs

completely invalid, with possibly calamitous consequences? (Hurley,

285 U.S. at 104, fn. 3).

18

Maryland, 4 Wheat. 316, 415 (1819), emphasis

added.

Petitioner's thesis, that would have the courts invalidate

legislative enactments on an ongoing basis, as the primary

remedy, violates that principle, and ignores the gravity of

judicial intervention in the workings of a tri-partite democratic

government. When the judiciary invalidates a legislative enact-

ment it is a measure of last — not first — resort. The judicial

power to invalidate is historically rooted in “strict necessity”

(Rescue Army v. Municipal Court, 331 U.S. 549, 568 (1947);

Spector Motor Service v. McLaughlin, 323 U.S. 101, 105

(1944)), and is to be invoked only when “‘unavoidable” (4/ma

Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136

(1946)). See Rescue 4rmy v. Municipal Court, supra, 331

U.S. at 571-572.

Petitioner's theory seems preoccupied with short-range pro-

vincial concerns of local governmental interests. It ignores the

grave strain that judicial invalidation of legislation imposes on

the fabric of a democratic society. It improvidently demands a

rule that would have the judiciary tell the legislature what it may

or may not enact, not in the historical context of major policy

conflicts that have confronted the nation on occasion and

thereby made legitimate claims on this Court’s extraordinary

power to invoke the organic law’s grand scheme of checks and

balances, but in ierms of routine, day-in, day-out, case by case,

ad hoc adjudications of purely local (usually intensely political)

decisions involving what in national policy terms are but

insignificant patches of land. Petitioner's approach would make

the judiciary an ongoing supervisor of the local legislative

branch; it would make this Court te Supreme Board of Zoning

Appeals.

The foregoing is no hyperbole. Only a few state’s law

provides so-called site specific non-monetary relief;?? i.e.,

judicial relief in the form of a decree that commands the

regulating entity to allow a specified improvement on the

22See e.g. Sinclair Pipeline Co. v. Village of Richton Park, 167

N.E. 2d 406, 411 (1960, IIl.).

19

specific site. The vast majority of jurisdictions (in those cases

where non-monetary relief is granted) merely remand the

matter back to the regulatory entity for further action, thus

inviting ongoing judicial involvement. Aside from the delay-

lade... inefficiency of such a procedure, it also opens up vast

opportunities for either regulatory foot-dr igging or outright bad

faith, as acutely noted t_- Mr. Justice Brennan in San Diego

Gas & Electric Co. v. City of San Diego, supra, 450 U.S. at

655, fn. 22.23

23]t must be noted with great emphasis that the problem is far more

pervasive than one might surmise from the entirely accurate, if

somewhat flippant, remarks of a California city attorney quoted there.

No less an expert than Richard F. Babcock, the dean of the land use

bar, noted the severity of the problem in his book, ““The Zoning

Game” (Univ. Wisc. Press, 1966) at pp. 12-13, with devastating

accuracy: “First, we have the multiplicity of jurisdictions, the

innumerable decision-makers. In other significant areas of admiri-

strative law — the regulation of utilities, control over the issuance of

securities, and the arbitration of disputes between employe: and

employee — there exist if not national at least statewide forums for the

resolution of disputes. In the area of zoning there is no such

centralized umpire to provide a sense of belonging to a common

administrative practice, and, indeed, of sharing a common admini-

stra:ive ethic. Among these scattered groups of lay decision-makers

there is an almost total lack of communication despite the effort of

innumerable planning groups, each offering earnest if generally

diffused guidance. One of the most significant results of this fractured

cecision-making process is that the injunctions of the judiciary have

only nominal impact upon the decision-makers. 4f the Supreme

Court of California makes a determination that the California

Public Utilitites Commission has acted improperly, the impact of

that judicial determination is direct and, in most instances, decisive.

But if the Supreme Court of California were to say to the local

legislature in Community X that its policy is improper that

injunction, I suspect, would have little practical impact upon the

identical administrative actions of Community Y or perhaps even on

Community X itself. Other lawyers have shared the experience that

follows a victory on behalf of a landowner in the state Supreme Court.

You have obtained a decision that the single-family classification of

your client’s property is unreasonable. Your client wants to use the

property for commercial purposes. The community immediately

rezones the property to a Duplex Zone and invites you to spend

20

Moreover, putting aside such potential for unwholesome

governmental conduct, injunctive relief is often ineffective

without judicial oversight. In practice, in order to have effective

specific decree enforcement, one would have to emtroil the

courts even deeper in the ongoing administration of complex

local land use schemes, and impinge further on the courts’

limited resources. In contrast, in appropriate cases where a

compensable economic loss has already been suffered, a court

need only order recompense under the familiar rules of eminent

domain valuation (San Diego Gas & Electric Co., 450 U.S. at

658-659), thereby concluding the particular litigation, and

freeing itself for other judicial business.

Vv

MR. JUSTICE BRENNAN’S VIEWS IN SAN

DIEGO GAS & ELECTRIC CO. HAVE BEEN

WIDELY ACCLAIMED, AND FORM A DE-

SIRABLE BLUEPRINT FOR SOLUTION OF

THE ISSUE BEFORE THE COURT

There is littie that can be added to the above heading. The

response of the Courts of Appeals speaks for itself. So far, the

following Circuits have expressly opted to follow the views

articulated in the Brennan opinion: 24 Hernandez v. City of

another two years and thousands of dollars litigating thai classifica-

tion.

“This indifference to judicial decisions applies, by the way, even in

jurisdictions such as Maryland, where, as in Baltimore County, there

are relatively few independent municipalities and decisions with

respect to land use are centralized in the county itself.’ Emphasis

added.

Of course, since the time Mr. Babcock wrote, things have changed a

bit, and a second round of litigation these days can easily consume a

multiple of the “two years” he alludes to, to say nothing of tens of

thousands of dollars, and likely mere.

24Reasoning quite logically that since Mr. Justice Brennan spoke

for four members of the Court, and Mr. Justice Rehnquist — although

joining the majority on the jurisdictional point — was unmistakably

clear in his endorsement of the substantive soundness of Mr. Justice

21

Lafayette, 643 F 2d 1188(1981, Sth Cir.), Devines v. Maier,

665 F. 2d 138, 1/:2,(1981, 7th Cir.), Barbian v. Panagis, 694

F. 2d 476, 482, fn. 5 (1982, 7th Cir.), In re Aircrash in Bali,

684 F. 2d 1301, 1311, fn. 7 (1982, 9th Cir.), Martino v. Santa

Clara Valley Water Dist., 703 F. 2d 1141, 1148 (1983, 9th

Cir.), Fountain v. Metro Atlanta Rapid Transit Dist., 678 F.

2d 1038, 1043 (1982, 11th Cir.) and of course, the Court

below: Hamilton Bank v. Williamson County, etc., Comm’n.,

729 F. 2d 402, 408 (1984, 6th Cir.). To the same effect,

Wheeler v. City of Pleasant Grove, 664 F. 2d 99 (1981, 5th

Cir.), endorsing the 42 U.S.C. §1983 damages remedy for

temporary denial of use of the subject property under a local

confiscatory land use ordinance. Also see, Gordon v. City of

Warren, 579 F. 2d 386 (1978, 6th Cir.). Only the First Circuit

adheres to the lonely and concededly problem-ridden position

that non-monetary relief is the sole remedy: Pamel Corp. v.

Puerto Rico Highway Auth., 621 F. 2d 33 (1980, 1st Cir.)*°

Similarly, in the short time since their articulation, the San

Diego Gas & Electric Co. substantive views have commanded

a following among state courts; see e.g., Burrows v. City of

Keene, 432 A. 2d 15, (1981, N.H.); Zinn v. State, 334 N.W.

2d 67, 72-73 (1983, Wis.); Rippley v. City of Linccln, 330

Brennan’s views (450 U.S. at 633), the Brennan views clearly

intimated the substantive and remedial views of the Court’s majority,

particularly since the majority opinion in San Diego merely address-

od jurisdiction — it did not disagree with the dissent’s substantive

views.

<5It bears noting that Pame/ was cecided without denefit of San

Diego Gas & *'ectric Co., and the views expressed there are pure

dictum, the hoidit.g being that the plaintiff failed to allege any causal

connection bets een the defendant and the assertedly wrongful act

(see 621 F. 2d 4 24 4)). In Citadel Corp. v. Puerto Rico Highway

Auth., 695 F.2d 31, 33-34, fn. 4 (1982, Ist Cir.), the First Circuit

candidly expressed doubt about the soundness of its Pamel views in

light of San Diego, but avoided its problem by resting the decision on

Eleventh Amendment grounds, the defendant in Citadel being the

Commonwealth of Puerto Rico.

22

N.W. 2d 505, 511 (1983, N.D.);26 also see Pioneer Land &

Gravel v. Anchorage, 627 P. 2d 651 (1981, Alaska) (Reserv-

ing judgment on proper remedy in light of San Diego Gas &

26In light of Rippley’s agreement with Justice Breunan’s opinion

(“. . . constitutes not only a legally correct analysis of the ‘taking’

involved but also provides a practical and fair solution for all parties,”

330 N.W. 2d at 511 [5]) one is shocked to come across the amicus

brief of California asserting (at p. 6, fn. 2) that North Dakcta, among

other states, denies the right to compensation (compare also Kraft v.

Malone, 313 N.W. 2d 758 (1981, N.D.), and therein lies a bit of a

tale. Space limitations prevent a full analysis of California’s glob of

sometimes dated string citations contained there. But it must be noted

that several other states cited there have modified their positions and

now allow inverse condemnation recovery in proper cases; they are

Colorado (Hermanson v. Board of Commissioners, 595 P.2d 694

(1379 Colo. App.)), Oregon (Seuss Builders v. Beaverton. 656 ?.2d

306 (1983, Ore.), and Florida (Askew v. Gables-by-the-Sea, 333 So.

2d 56 (1976, Fla. App.), Key Haven Associates v. Board of Trustees,

etc., 427 So. 2d 153 (1983, Fla.)).

{In short, by its selective briefing, California is no friend of the

court’s taxed resources, and unfortunately the same is true of the

collection of commentaries at p. 10, fn. 5, of its brief. The literature is

indeed vast, but hardly as one-sidedly doctrinaire in its views as one

might surmise by reviewing California’s hand-picked examples. For a

sampling of different views of commentators, see Bauman, The

Supreme Court, Inverse Condemnation and the Fifth Amendment:

Justice Brennan Confronts the Inevitable in Land Use Contro’s, 15

Rutgers L. Jour. 15 (1983), McMurry, Just Compensation or Just

Invalidation: The Availability of a Damages Remedy in Challeng-

ing Land Use Regulations, 29 UCLA L. Rev. 711 (1982), Berger,

To Regulate or Not to Regulate — Is That the Question? Reflections

of the Supposed Dilemma Between Environmental Protection and

Private Property Rights, 8 Loyola(L.A.) L. Rev. 253(1975); Badler,

Municipal Zoning Liability in Damages — A New Cause of Action,

5 Urban Law. 25 (1973). Note also that one of the polemical

commentaries (by Prof. Girard) cited by California, was the subject of

a devastating refutation by another commentator — see Berger, The

State's Police Power Is Not(Yet) the Power ofa Police State: A Reply

to Professor Girard, 35 Land Use Law & Zoning Digest 4 (May

1983).

23

Electric, but in the meantime allowing the inverse condem-

nation action to proceed).

Apart from the above decisions expressly animated by the

fairness and pragmation of the San Diego Gas & Electi ic Co.

dissent, other states have independently decided to endorse the

efficacy of the inverse condemnation “just compensation”’

remedy. Putting aside the invalidation-only jurisdictions ful-

somely briefed by Petitioner and friends, these states may be

grouped as follows:

(a) states which relegate the aggrieved land owner

solely to monetary remedies: Village of Willoughby

Hills v. Corrigan, 278 N.E. 2d 658 (Ohio 1972),

cert. den. sub nom. Chrongris v. Corrigan, 409 U.S.

919 (1972), Douglas, J., dissenting (opinion); Clif-

ton v. Berry, 259 S.E. 2d 35 (Ga. 1979); Milardo v.

Coastal Resources Ma Council, 434 A. 2d 266

(1982, R.I.); Hamilton v. Conservation Comm'n.,

425 N.E. 2d 358 (1981, Mass. App.) (dictum).

(b) states which allow both specific relief and dam-

ages for demonstrable losses: City of Austin v.

Teague, 570 S.W. 389 (1978, Tex.); Ventures in

Property I v. City of Wichita, 594 P. 24671 (1979,

Kan.); Brazil v. City of Auburn, 598 P. 2c 1 (1979,

Wash. App.); Also see, Sheer v. Township of

Evesham, 445 A. 2d 46 (1982, N.J. Super); Key

Haven Associates v. Board of Trustees, etc., 427 So.

2d 153 (1983, Fia.).

(c) states which express a preference for specific

relief, but allow damages where such relief would be

ineffective: e.g., Hermanson v. Board of Commission-

ers, 59§ P.2d694(1979, Colo. App.), Eck v. City of

Bismarck, 283 N.W. 2d 193 (1979 N.D.).

(d) New York is in a category by itself. It purports

to hold that invalidation is the only remedy, unless

there has been physical invasion or direct legal

control of the affected property, or where the injury

24

suffered is irreversible, Fred F. French Investing

Co. v. City of New York, 350 N.E. 2d 381 (1976

N.Y.). Yet, New York has steadfastly refused to

compensate even for physical invasion (see, New

York Telephone Co. v. North Hempstead, 363 N.E.

2d 694 (1977 N.Y.); Loretto v. Teleprompter Man-

hattan CATV, 423 N.E. 2d 320 (1982 N.Y.),

reversed, 458 U.S. 419 (1982), or irreversible injury

(see, Charles v. Diamond, 360 N.E. 2d 1295 (1977

N.Y.). At the same time, New York has routinely

awarded damages for temporary de facto taking

effected by use-stultifying regulation in Keystone

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

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

rev d. and remanded, 383 N.E. 2d 560 (1978).

In sum, it appears that of the jurisdictions which have

considered the issue of taki»g remedies recently, most opt for

recognition of damages as a flexible and pragmatic component

of a just and fair remedial scheme. Specific relief often remains

available, but only as one component of a comprehensive

remedial scheme, which is as it should be, for only a combination

of these approaches can assure substantial justice to both sides

in most cases.

This developing picture is in large measure due to the

persuasive influence of Mr. Justice Brennan’s views in San

Diego Gas & Electric Co., which are noteworthy because they

posed no precedentiai compulsion. Yet, those views have been

so often adopted because they are plainly right. Under that

approach the rights of all parties are protected:

(a) The regulatory entity need not fear that its

important policies will be frustrated against its will.

(b) The regulatory entity _ :ts to opt for acquisition

of an appropriate property right in the regulated land,

or for retreat from its overly ambitious regulatory

scheme.

25

(c) The landowner is assured of ability to proceed

with some reasonable, economically viable use of his

property, and is recompensed to the extent of demon-

strable losses suffered.

(d) Even in the “worst case scenario” (from the

regulatory entity’s point of view), in those few cases

where the entity’s invasion of private rights is so

egregious that it may be adjudged to acquire the

stigmatized property (rather than merely pay for a

lirmited/temporary interest therein), it gets in exchange

for its money a valuable asset at its judicially

determined fair value. The entity thereby loses little;

it merely converts “ne asset into another. And if that

should prove too t urdensome, the entity has its relief

in its own hands: it can then resell the thus acquired

land and recoup its involuntary investment.’

In sum, the San Diego Gas & Electric Co. analysis is sound

and fair, and has been remarkably persuasive to courts around

the country in spite of its lack of precedentially compulsive

effect. It is time to adopt it as the Court’s holding.

CONCLUSION

“After all, ifa policeman must know the Constitu-

tion, ihen why not a planner?”

Brennan, |.,

450 U.S. 661, fn. 26

In the final analysis, that question cuts to the heart of the

matter. After all the polemics are done with, there rema:n but

27The experience of the City of Palo Alto is instructive. In Arastra

Limited Partnership v. City of Palo Alto, 401 F. Supp. 962 (1975

N.D. Cal.) the City was held liab'e, whereupon it settled (see 417 F.

Supp. 1125) by acquiring the laud in question for some seven miilion

dollars. Later, land values rose sharply, and the tract in question is

now reputed to be worth over twenty million dollars; the city is said to

have explored selling the land to 2 developer at a huge profit.

26

few unyielding legal and factual realities at bench. First, the

Constitution addresses takings, not merely some takings; it

commands payment of “‘just compensation” — not inadequate

compensation, and a fortiori not no compensation. Second, this

court’s settled precedential record is plain in its recognition of

availability of just compensation as the remedy in uncompensated

taking cases, because it is effective, pragmatic, and in the long

run better serves the greater public interest, irrespective of the

mechanics of the taking, Third, the only reason why this newly-

resurrected remedies issue is being thrust on the Court at this

late date, is the simple fact that planners and land use regulators

demand for themselves a special privilege: a rule that would

impos~ >on them a lesser remedial responsibility to their victims

than 1s raced by other constitutionally transgressing entities and

officials. (See Bauman, The Supreme Court, Inverse Condem-

ration a..d the Fifth Amendment: Justice Brennan Confronts

the Inevitable in Land Use Controls, supra, 15 Rutgers L.

Jour. at 99). No respectable reason has been advanced for such

an unblushing demand that the Court create some sort of

aristocracy, as it were, privileged to live above prevailing norms

of constitutional accountability. Justice Brennan’s policeman,

reacting instantly to deadly peril, ali alone in a dark alley, often

with limited education and experience, still must know and

obey the Constitution — and be accountable for his refusal to do

so. No respectable reason appears why the municipal land use

establishment, replete with planners, legal counsel and expert

consultants, fully advised of its responsibilities, and acting at

leisure (usually, as at bench, taking years to accomplish its

purpose) should claim for itself & ‘esser standard of constitutional

accountability.

As the court noted in Euclid v. Ambler Realty Co., 272 U.S.

365, 387 (1926), in a changing world, the scope of constitu-

tional guaiantees must “‘expand and contract to meet the new

and different conditions which are constantly coming within the

field of operations.” In the past half-century, their scope has

contracted in the face of expanding (nay, exploding) land use

regulations. But now the time is at hand to note that the sword

and scales of justice have two sides. In the face of expansive

27

growth of land regulatory powers, it is time to reaffirm the line

beyond which constitutional rights may not be impaired with

impunity. “In a changing world, it is impossible that it should be

otherwise” (Euclid, supra). A fortiori so, in a principled if

changing world.

Land use regulations have at long last reached such a level of

intensity and complexity that they often become counter-

productive. Instead of regulating housing, they frustrate it;

instead of soiving problems, they exacerbate them. That is not

in the public interest. It does not deserve the issuance of what

amounts to a carte blanche. If permitted to go on unchecked and

unrestrained by an obligation to make whole its victims, it is a

process that is certain in the long run to erode property nghts

and impair other liberties; see Pennsylvania Coal Co. v.

Mahon, supra, 260 U.S. at 415.

For ultimately, there can be no real liberty for people whose

property nghts can be snuffed out by an izresponsible govern-

ment; liberty and property are in the final analysis inter-

dependent a:id “neither could have meaning without the other”

(Lynch v. Household Finance Corv., 405 U.S. 538, 552

(1972)).

Amicus respectfully urges that the decision of the Court of

Appeals be affirmed.

Respectfully submitted,

GIDEON KANNER

Attorney for Amicus Curiae

California Building Industries

Assoc.

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

1, the undersigned say: I am and was at all times herein

mentioned, a citizen of the United States and a resident of the

County of Los Angeles, over the age of eighteen (18) years and

not a party to the within action or proceeding; that my business

address is 11333 lowa Avenue, Los Angeles, California

90025; that on December 12, 1984, I served the within Brief

of Amicus Curiae in said action or proceeding by derositing

true copies thereof, enclosed in a sealed envelope with post2ge

thereon fully prepaid, in the United States mail at Los Angeles,

California, addressed as follows:

U.S. Supreme Court Robert L. Estes, Esq.

One First Street N.W. M. Milton Sweeney, Esq.

Washington D.C. 20543 Stewart, Estes & Dornell

(Orginal and 40 cupies) Third National Bank Building

Nashville, Tennessee 37219

G.T. Nebel, Esq. Counsel for Petitioners

Bass, Berry & Sims

2700 First American Center

Nashville, Tennessee 37238

Counsel for Respondent

I declare under penalty of perjury that the foregoing is true

and correct. Executed on December 12, 1984, at Los Angeles,

California.

Robin J. McColgan

(Original signed)