Amicus Curiae Brief — Yee v. Escondido

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No. 90-1947 | OFFICE OF THE CLERI

In The

Supreme Court of the United States

October Term, 1991

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JOHN K. YEE and IRENE S. YEE, et al.,

Petitioners,

VS.

CITY OF ESCONDIDO,

Respondent.

¢

On Writ Of Certiorari To The Fourth Appeliate District,

Division One, Court Of Appeal

For The State Of California

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BRIEF AMICUS CURIAE OF FLORIDA

MANUFACTURED HOUSING ASSOCIATION, INC.

IN SUPPORT OF PETITIONERS

¢

Jack M. SKELDING, JR.

(Counsel of Record)

Davip D. EASTMAN

JENNIFER PARKER LAVIA

PARKER, SKELDING, LABASKY & CorRY

Post Office Box 669

Tallahassee, Florida 32302

(904) 222-3730

Counsel for Florida Manufactured

Housing Association, Inc.

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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MEE 6 6 co ve cses ve secnccdevesces ii

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

SUMMARY OF THE ARGUMENT ................. 2

RG A ee ee ee eee re 4

I. THE CITY OF ESCONDIDO ORDINANCE IN

CONJUNCTION WITH CALIFORNIA MOBILE

HOME LAW EFFECTS AN UNCONSTITU-

EE 56.6 6656 000 686 ota seensees eee. 4

Il. THE CHALLENGED LEGISLATION DOES NOT

SUBSTANTIALLY FURTHER A LEGITIMATE

hb oct eed acesneedvensenvess 14

III. THE CHALLENGED LEGISLATION DOES NOT

PROVIDE JUST COMPENSATION............. 16

EE Oe ee ee ee eee 18

TABLE OF AUTHORITIES

Page

Cases

Azul Pacifico, Inc. v. City of Los Angeles, 1991 WL

224528 (Nov. 1, 1998)... .ccexeecnebee suena 9, 10

Chicago, Burlington, & Quincy Railroad Co. v. Chi-

cago, 166 U.S. 226, 235-41 (1897) ...............005. 4

FCC v. Florida Power Corp., 480 U.S. 245 (1987)...... 12

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304, 316 (1987)............ 17

Hall v. City of Santa Barbara, 833 F.2d 1270 (9th Cir.

BODE)... nc ncccevcescessancene nme 5, 8, 9, 10, 15, 17

Hodel v. Irving, 481 U.S. 704, 716 (1987)............. 11

Kaiser Aetna v. United States, 444 U.S. 164 (1979)...... 7

Loretto v. Teleprompter Manhattan CATV Corp., 458

US. 419 (I9GZ) .... .ccceccesesesseumne ue a 4 oe

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

G25, S34 CISSZ) ... on cevccccssensenc wep 14

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

438 US. 104, 127 (1976) ......0000ss0000ns eee 14

Pennell v. City of San Jose, 485 U.S. 1 (1988)....... 4, 12

Pinewood Estates v. Barnegat Township Leveling

Board, 898 F.2d 347 (3d Cir. 1990)..............05. 10

PruneYard Shopping Center v. Robins, 447 U.S. 74

1 nr 7

CONSTITUTIONS

U.S. Const. amend. V.....6s<0cesseesecuueneeee 4

iii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

STATE

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EEE 2

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Tes es ccc cc ccc ccc ccc cess 2

INTEREST OF THE AMICUS CURIAE!

Florida Manufactured Housing Association, Inc.

(hereinafter FMHA) is a Florida not-for-profit corporation

organized and maintained for the benefit of approx-

imately 1000 owners of Florida mobile home parks con-

taining a combined total of approximately 300,000 to

350,000 mobile home lots. The owners of the 1000 mobile

home parks comprise a substantial portion of the mem-

bership of FMHA. One of the primary purposes of FMHA

is to act on behalf of its members before the various

governmental agencies of the State of Florida to promote

the interests of various segments of the manufactured

housing industry.

Mobile home parks are heavily regulated in Florida

by the “Florida Mobile Home Act.” Fla. Stat. Ch. 723.

There are rights granted to the purchaser of a mobile

home located in a mobile home park. Currently, Florida

law provides:

The purchaser of a mobile home park within a

mobile home park may become a tenant of the

park if such purchaser would otherwise qualify

with the requirements of entry into the park

under the park rules and regulations, subject to

the approval of the park owner, but such

approval may not be unreasonably withheld.

Fla. Stat. § 723.059(1). The purchaser is entitled to assume

the remainder of the term of any rental agreement

|! This Brief is submitted with the written consent of all

parties filed with the Clerk of the Court.

between the seller and the mobile home park owner. Fla.

Stat. § 723.059(3). However, the park owner may, within

certain guidelines, increase the amount of the rent upon

the expiration of the assumed rental agreement. Fla. Stat.

§ 723.059(4). Florida law also severely restricts the park

owner’s right to evict a tenant. Fla. Stat. § 723.061. The

current situation which exists in California as a result of

the interplay between California mobile home law and

local rent control ordinances could not presently occur in

Florida because the control of mobile home lot rents is

expressly preempted to the state. Fla. Stat. § 723.004(1).

Nevertheless, FMHA has a vital interest in the out-

come of this case because FMHA believes that if this

Court determines that the Escondido ordinance in combi.

nation with California law does not effect a taking, that

the State of Florida may enact similar legislation. The

enactment of rent control legislation without provision

for vacancy decontrcl in Florida would have devastating

consequences.

SUMMARY OF THE ARGUMENT

FMHA will not attempt to address all the arguments

presented in this case. Instead, FMHA will focus on three

important issues: 1) whether the City of Escondido ordi-

nance in conjunction with California mobile home law

effects an unconstitutional taking; 2) whether the com-

bined legislation substantially advances a legitimate state

interest; and 3) whether the challenged legislation pro-

vides just compensation.

FMHA will first demonstrate that the City of Escon-

dido ordinance against the background of existing Calli-

fornia law effects an unconstitutional taking. This is

consistent with past decisions of this Court. This Court

has not previously found rent control legislation to be a

per se taking. Nor has this Court found that legislation

which allows a tenant to choose his successor is uncon-

stitutional. Nevertheless, the combination of the two is

unquestionably unconstitutional, as will be shown below.

FMHA will next show that vacancy control does not

substantially advance any legitimate state interest.

Vacancy control does nothing to further the state interest

in providing affordable housing to its citizens. In fact,

vacancy control has exactly the opposite effect of arti-

ficially inflating the cost of existing mobile homes and

creating a windfall for the current owners.

Finally, FMHA will show that the challenged legisla-

tion does not provide just compensation to the park

owner. The provision in the ordinance for a reasonable

rent compensates the park owner only for the temporary

use of his land. The ordinance does not provide compen-

sation to the park owner for the permanent deprivation

of the use of his land. Therefore, the ordinance does not

provide just compensation as required by the United

States Constitution.

ARGUMENT

I. THE CITY OF ESCONDIDO ORDINANCE IN CON-

JUNCTION WITH CALIFORNIA MOBILE HOME

LAW EFFECTS AN UNCONSTITUTIONAL TAK-

ING.

The City of Escondido rent control ordinance coupled

with existing California law, which substantially restricts

a mobile home park owner’s ability to choose his tenants,

effects an unconstitutional taking. Thus, the challenged

legislation violates the Fifth Amendment to the United

States Constitution. The takings clause of the Fifth

Amendment is made applicable to the states through the

Fourteenth Amendment. Chicago, Burlington, & Quincy

Railroad Co. v. Chicago, 166 U.S. 226, 235-41 (1897).

This Court has not previously addressed the question

of whether rent control legislation in combination with

restrictions on the right of a mobile home park owner to

control the identity of his tenants violates the takings

clause. This Court has previously declined to find rent

control legislation unconstitutional per se and declined a

request to reconsider the constitutionality of rent control

per se. Pennell v. City of San Jose, 485 U.S. 1, 12 n.6 (1988).

This Court specifically declined to address the issue of

whether the combination of rent contro] and restriction of

a landlord’s power to evict a tenant amounted to a physi-

cal taking of the landlord’s property. /d. at 11 n.5.

This Court has never previously addressed the speci-

fic issue of rent control in mobile home parks. Therefore,

th brief does not address the issue of the constitu-

tionality of rent control, nor does it address the constitu-

tionality of restrictions on the ‘andlord’s right to

determine who his tenants will be. However, the combi-

nation of rent control and vacancy control necessarily

effects a physical taking of the mobile home park owner's

property by giving the mobile home park tenant a perma-

nent possessory interest in the park owner’s land by

virtue of the unfettered right of the mobile home owner

to transfer his interest in the housing that is the subject of

the rent control. The local ordinance is not necessarily

constitutional just by virtue of the rent control compo-

nent. As the Ninth Circuit has opined, a city may not

“eviscerate a property owner’s rights and shield its

actions from constitutional scrutiny by calling it rent

control.” Hall v. City of Santa Barbara, 833 F.2d 1270 (9th

Cir. 1986).

Previous decisions of this Court finding rent control

legislation to be constitutional are distinguishable from

the instant case. In Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982), this Court acknowledged that

“States have broad power to regulate housing conditions

in general and the landlord-tenant relationship in partic-

ular without paying compensation for all economic inju-

ries that such regulation entails.” Id. at 440. As authority

for such proposition, this Court cited numerous previous

Supreme Court cases, including rent control cases. This

Court recognized that “[i]n none of these cases, however,

did the government authorize the permanent occupation

of the landlord’s property by a third party.” Id. This

Court implicitly recognized that a different analysis is

required where regulations require the landlord to suffer

possession of his land by a third party. Id.

This Court has long differentiated between regula-

tory takings and takings in the form of physical occupa-

tion. Id. at 426. “When faced with a constitutional

challenge to a permanent physical occupation of real

property, this Court has invariably found a taking.” Id. at

427 (footnote omitted). “[PJermanent occupations of land

.. are takings even if they occupy only relatively insub-

stantial amounts of space and do not seriously interfere

with the landowner’s use of the rest of his land.” Id. at

430. By contrast to the small amount of space taken in

Loretto, the legislation challenged herein allows perma-

nent possession of entire lots within the mobile home

park. “[A] permanent physical occupation is a govern-

ment action of such a unique character that it is a taking

without regard to other factors that a court might ordi-

narily examine.” Id. at 432 (footnote omitted). Property

rights include the rights to possess, use and dispose of

the property. Id. at 435. The legislation challenged herein

allows the tenants to possess, use, and dispose of the

park owner’s property. The park owner retains almost

nothing of the bundle of rights, other than the right to

collect below-market rents. A permanent physical occu-

pation of the property of another is “perhaps the most

serious form of invasion of an owner's property inter-

ests .. . [because] the government does not simply take a

single ‘strand’ from the ‘bundle’ of property rights; it

chops through the bundle, taking a slice of every strand.”

Id.

The legislation challenged herein allows a third party

to occupy the park owner's land forever. The park owner

is essentially powerless to remove the stranger from his

land. The position of the park owner as to the initial

tenant may be said to be analogous to that of the shop-

ping center owner in PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980). In PruneYard, the shopping center

owner had opened his property to the public at large. Id.

at 83. Similarly, with regard to the initial tenant, the park

owner opens his property to the tenant. The park owner

has made the initial decision to allow the tenant on his

land.

However, with regard to the tenant’s successors, the

park owner is given no choice. He is required to suffer

the occupation of his land by strangers of the tenant's

choice. This Court has recognized that “an owner suffers

a special kind of injury when a stranger directly invades

and occupies the owner’s property.” Loretto, 458 U.S. at

436. When the state allows a third party to occupy the

landlord’s land, a taking occurs the same as if the state

itself were occupying the land. “A permanent physical

occupation authorized by state law is a taking without

regard to whether the State, or instead a party authorized

by the State, is the occupant.” Id. at 432 n.9.

Thus, the park owner’s situation under current Cali-

fornia law more closely resembles that found in Kaiser

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

the landowner had opened his marina to lessees for a fee.

Id. at 168. The marina was not generally open to the

public. Id. The marina owner dredged a channel connec-

ting the property to an adjacent bay to provide access to

the Pacific Ocean for boat traffic. The Corps of Engineers

asserted that the public had the right to use the facilities

under a “navigational servitude.” This Court held that a

governmentally-required public easement in the marina

was a taking. /d. at 180. Similarly here, the government is

requiring the park owner to allow the public access to the

rent controlled property by allowing the tenant to decide

who may purchase the mobile home and reside on the lot.

The decisions of lower courts finding that rent con-

trol legislation without vacancy decontrol effects a taking

by allowing occupation of the property by the tenant are

well-reasoned and this Court should adopt the positions

taken therein. Two are decisions of the Ninth Circuit

Court of Appeals. The other is a decision of the Third

Circuit Court of Appeals. An examination of the reason-

ing of these three cases may help illuminate the issues

before this Court.

In the first case, Hall v. City of Santa Barbara, 833 F.2d

1270 (9th Cir. 1986), the challenged ordinance was a rent

control ordinance applicable to mobile home parks. In

addition to the rent control provisions, the ordinance

required the park owner to offer leases of unlimited

duration. Id. at 1273. The court used a three-part test in

adjudicating the park owners’ claim: “(1) Did the govern-

mental action amount to a taking of property? (2) Did it

advance a legitimate governmental interest? (3) Was there

just compensation?” Id. at 1274-75 (citations omitted). The

court held that-arrunconstitutional taking occurred if the

first question is answered in the affirmative and either of

the remaining two questions is answered in the negative.

Id. at 1275.

Hall focused on the possessory nature of the tenants’

interest and recognized that this Court “reaches dramati-

caily different results depending on whether it concludes

that a particular governmental action amounts to a physi-

cal occupation of property or merely a regulation.” 833

F.2d at 1275. The court then determined that the chal-

lenged ordinance transferred a possessory interest in

property to the mobile home tenant. Under-the ordinance,

“the landlord’s residual rights in the property are largely

at the mercy of his tenants; he loses practically all right to

decide who occupies the property, and on what terms.”

ld. at 1276. The court further stated, “If a tenant moves,

the tenant alone decides who will be his successor by

selecting the buyer for his rental unit; the landlord has no

meaningful say as to who will live on the property, now

or in the future.” /d.

‘

The court realized that the tenant was given “an

economic interest in the land that he can use, sell, or give

away at his pleasure.” Id. Similar to the legislation before

this Court, the legislation before the Hall court allowed

removal of tenants for cause. Nevertheless, the court

recognized that the tenants were “given an indefeasible

right to possession so long as they pay the controlled rent

and behave themselves.” /d. at 1277. The court determine

that as the ordinance was alleged to operate, “landlords

are left with the right to collect reduce rents while tenants

have practically all other rights in the property they

occupy. . . . [T]his oversteps the boundaries of mere

regulation and shades into permanent occupation of the

property for which compensation is due.” /d. at 1280.

Recently, the Ninth Circuit again addressed rent con-

trol in mobile home parks in Azul Pacifico, Inc. v. City of

Los Angeles, 1991 WL 224528 (Nov. 1, 1991). The court

followed the reasoning it had applied in Hall, 833 F.2d

1270, reaffirming the validity of the three-part test. How-

ever, Azui Pacifico reached the court in a different pro-

cedural posture. Unlike Hall, a trial on the merits had

10

been held. Thus, what had been found by the Hall court

as theory was found as fact by the district court in Azul

Pacifico.

The Third Circuit reached the same conclusion in

Pinewood Estates v. Barnegat Township Leveling Board, 898

F.2d 347 (3d Cir. 1990). New Jersey law regulated the

relationship between mobile home owners and park

owners and prohibited park owners from requiring the

removal of a mobile home from the park upon sale of the

mobile home. The town of Barnegat enacted a rent control

ordinance which did not provide for vacancy decontrol.

The court determined that the challenged legislation per-

manently transferred a possessory interest in the rent-

controlled park from the park owner to the tenant with-

out compensation. The court found that the new tenants

who paid a premium for the privilege of purchasing a

mobile home in a rent-controlled park were in actuality

paying advanced rent for the lot. However, the rent was

paid not to the landlord, as it should be, but to the selling

tenant.

The reasoning of the federal courts in Hall, Azul

Pacifico, and Pinewood Estates is sound and comports with

precedents of this Court. However, these cases do not go

far enough. For example, all seem to rely heavily on the

fact that the tenant is able to exact a premium for his

mobile home as a result of the legislation. However, even

if the tenant could not exact such a premium, the chal-

lenged legislation would be unconstitutional. The pre-

mium received by the tenant provides one method of

determining the amount of compensation due. However,

the tenant's ability to collect the premium is not a prereq-

uisite to the finding of a taking.

11

As an extreme example, clearly if the legislation

allowed the tenant to devise his leasehold interest in the

land, that would effect a taking despite the fact that the

tenant would receive no premium. The right to devise

property is one of the most important property rights. “In

one form or another, the right to pass on property . . . has

been part of the Anglo-American legal system since feu-

dal times.” Hodel v. Irving, 481 U.S. 704, 716 (1987). To

allow the tenant to devise his leasehold would enable the

tenant and his devisees to occupy the park owner's land

in perpetuity, thus creating a permanent physical inva-

sion of the park owner’s land which is necessarily a

taking.

The Third Circuit appeared to recognize this distinc-

tion, for the court stated that the focus should not be on

the additional compensation or “premium” which the

tenant receives, but on the fact that the park owners are

deprived of compensation for the loss of a possessory

interest in their land. 898 F.2d 353. Curiously, however,

the court went on to state that the local ordinance in

conjunction with state law had “created valuable property

interests for which” the park owners were not compen-

sated. Id. The court’s analysis is somewhat flawed

because in actuality, no new interest is created. What

occurs is simply a transfer of an existing monetary interest

from the landlord to the tenant. The increase in value of

the tenant’s home corresponds to a decrease in the value

of the landlord’s property. The new tenant will pay the

same amount in the long run. Under the unconstitutional

scheme, he will pay the value of future reduced rents to

the selling tenant in the purchase price of the mobile

home.

12

The Third Circuit distinguished this Court’s prior

rent control cases on the basis of what the court saw as

two significant differences between the challenged legis-

lation and the typical urban rent control: “First, in urban

apartment rent control it is the landlord who chooses,

selects, and rents to the new tenants. No other party can

sell the right to occupy the landlord’s premises. Second,

the tenant cannot occupy in perpetuity. Thus, the tenant

does not acquire an inheritable right.” Id. at 355.

Recent takings decisions of this Court do not under-

mine the foregoing analysis. This Court’s decision in

Pennell v. San Jose, 485 U.S. 1 (1988) fails to provide

support for the position of Respondent herein. Pennell

involved a challenge to a rent control ordinance which

allowed a hearing officer to consider “hardship to a ten-

ant” in deciding whether to permit a rent increase. This

Court did not decide whether an unlawful taking

occurred. The plaintiff's claim was found to be premature

because the record failed to show that tenant hardship

had ever actually been used as a factor to deny a rent

increase. Id. at 9-10.

FCC v. Florida Power Corp., 480 U.S. 245 (1987), may,

upon the most superficial level, be similar to the instant

case. However, upon closer analysis, any similarities

fade. In FCC this Court upheld a law which regulated the

amount which could be charged by a utility company for

the leasing of space on utility poles to cable television

operators. Id. at 247. This Court found no taking. In

distinguishing Loretto, this Court noted that the legisla-

tion before it did not give cable companies “any right to

occupy space on utility poles,” nor did the legislation

“prohibit[ }] utility companies from refusing to enter into

13

attachment agreements with cable operators.” Id. at 251

(footnote omitted). In FCC this Court again reiterated that

economic regulations of the relationship between land-

lords and tenants are not per se takings so long as they do

not require the landlord to surrender possession of his

property to a third party. /d. at 252. The significant differ-

ence between the situation in FCC and that in Loretto was

that in FCC, the landlord had invited the tenant onto his

property. The government then had the right to regulate

that relationship. In Loretto, by contrast, the landlord had

not invited the third party onto her property.

The situation created by the interplay between the

Escondido ordinance and California mobile home law is

more analogous to the situation in Loretto. The park

owner initially invites a tenant onto his land. At that

point the rule in FCC applies and the government may

regulate the rent. However, at the point where the gov-

ernment requires the landlord to accept a new tenant, one

he did not invite, at the same reduced rent, the govern-

ment has effected an unlawful taking of the landlord’s

property. In FCC, this Court specifically did not decide

what the application of Loretto would be “if the FCC ina

future case required utilities, over objection, to enter into,

renew, or refrain from terminating pole attachment agree-

ments.” FCC, 480 U.S. at 251 n.6. Now this Court has the

opportunity to address thet question. FMHA respectfully

suggests that this Court should decide that where the

landlord is required to enter into, renew, or refrain from

terminating rental agreements and the rent is controlled,

an unlawful taking occurs.

To illustrate, suppose rent control legislation were

enacted which provided that the park owner could raise

14

the rent to the market rate when the tenant sold the

mobile home, but further provided that the difference

between the controlled rent and the market rent would be

paid to the selling tenant rather than to the park owner.

Such legislation would unquestionably violate the takings

clause. The legislation challenged herein does exactly the

same thing, but requires the incoming tenant to pay the

rent in a lump sum in advance in the form of a premium

in purchasing the mobile home. The unlawful taking

results from the fact that the park owner does not receive

the full rent rather than the fact that the selling tenant

does receive the rent.

Il. THE CHALLENGED LEGISLATION DOES NOT

SUBSTANTIALLY FURTHER A LEGITIMATE

STATE INTEREST.

The next issue which must be addressed is whether

the challenged legislation substantially furthers a legiti-

mate state interest. This Court has “long recognized that

land-use regulation does not effect a taking if it ‘substan-

tially advance[s] legitimate state interests’ and does not

‘den[y] an owner economically viable use of his land.’ ”

Nollan v. California Coastal Commission, 483 U.S. 825, 834

(1987) (quoting Agins v. Tiburon, 447 U.S. 255, 260 (1980)).

Furthermore, “a use restriction on real property may

constitute a ‘taking’ if not reasonably necessary to the

effectuation of a substantial public purpose.” Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 127

(1978).

Assuming that the legislation was enacted to allevi-

ate a shortage of affordable housing, FMHA does not

15

challenge that as a legitimate state interest. However, the

challenged legislation fails to substantially further that

interest. In Hall, the Ninth Circuit declined to express a

view on the issue of whether the legislation therein sub-

stantially advanced a legitimate state interest. However,

the court noted:

If appellants are able to prove their allegations,

it would seem that the Santa Barbara ordinance

will do little more than give a windfall to cur-

rent mobile park tenants at the expense of cur-

rent mobile park owners. If, as appellants allege,

the ordinance has resulted in a substantial

increase in the market price of mobile homes

subject to the ordinance, this may well hinder

rather than assist lower-income families seeking

access to rental units in mobile park homes.

833 F.2d at 1282. The challenged legislation does not

further a public purpose; instead, it provides a large

benefit to a small group of existing mobile home tenants.

More recently, the Ninth Circuit suggested an alter-

native state interest which was furthered by the lack of

vacancy decontrol as a part of rent control legislation.

The court was concerned that existing tenants benefiting

from rent control would suffer a significant injury when

they decided to sell their homes. The fear of the court was

that when rent-control tenants sold their homes, they

would be forced to sell their homes at stfbstantially

reduced rates because with vacancy decontro! the land-

lord could set the rent for the new tenant so high that no

one would want to buy the mobile home. This fear, how-

ever, defies logic. If the park owner has a tenant who is

protected by rent control and the legislation provides for

16

vacancy decontrol, sale of the home is obviously in the

landlord’s best interest, because he is provided with an

opportunity to increase the rent. Therefore, the park

owner’s interest will be in avoiding any increase which

would prohibit the sale of the mobile home. The park

owner will realize that if he negotiates too high a rent, the

sale will not be consummated and he will continue to

receive below market rents due to the rent control protec-

tion afforded the current tenant.

III. THE CHALLENGED LEGISLATION DOES NOT

PROVIDE JUST COMPENSATION.

The final question which FMHA will address is

whether the challenged legislation provides just compen-

sation. As will be shown below, the legislation fails to

provide adequate compensation. It is simplistic to argue

that the allowance of “reasonable rents” provides just

compensation. The rents, reasonable or otherwise, com-

pensate the park owner, but only for the temporary occu-

pation of his property by the tenant. The park owner is

not provided any form of compensation for the perma-

nent deprivation of the possession of his property.

Assuming that the California laws restricting the park

owner’s right to exclude future tenants from his land are

constitutional, such constitutionality must be based on

the fact that, in the absence of rent control, the park

owner is justly compensated for the use of his property.

When the new tenant comes in, the park owner is given

the opportunity to renegotiate the rent and to receive the

market rate for his land. Thus, even if the perpetual right

given to the tenant is a taking, it is not unlawful, because

17

the park owner is justly compensated. On the other hand,

in the situation presently before this Court, where the

rent control is not subject to vacancy decontrol, the park

owner is not justly compensated. Therefore, the taking is

unconstitutional.

Even if the legislation is allowable, and substantially

furthers a legitimate state interest, the inquiry does not

end there. “Whether compensation is adequate is an

inquiry separate from whether there has been a taking.”

Hall, 833 F.2d at 1278. The Fifth Amendment “is designed

not to limit the governmental interference with property

rights per se, but rather to secure compensation in the

event of otherwise proper interference amounting to a

taking.” First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304, 316 (1987).

No matter how laudable the public purpose, if a

taking occurs, the government must provide compensa-

tion. As this Court has reiterated, “ ‘a strong public desire

to improve the public condition is not enough to warrant

achieving the desire by a shorter cut than the constitu-

tional way of paying for the change.” Id. at 321-22

(quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416

(1922)).

If the public purpose is so important, then the public

should be forced to bear the burden of paying for it. “It is

axiomatic that the Fifth Amendment’s just compensation

provision is ‘designed to bar Government from forcing

some people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as a

whole.’ ” Id. at 318-19 (quoting Armstrong v. United States,

364 U.S. 40, 49 (1960)). If a shortage of affordable housing

18

exists and the need is so great that tenants should be

given the right to control their leasehold property in

perpetuity, then the public should bear the cost of such

government help in the form of housing subsidies or

otherwise.

CONCLUSION

Based on the foregoing analysis, the decision of the

lower court should be reversed.

Respectfully submitted,

Jack M. SKELDING, Jr.

(Counsel of Record)

Davip D. EASTMAN

JENNIFER PARKER LAVIA

PARKER SKELDING, LABASKY

& Corry

Post Office Box 669

Tallahassee, Florida 32302

(904) 222-3730

Counsel for Amicus Curiae

Florida Manufactured

Housing Association, Inc.