Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

Supreme Court, U.S.

ay FILED

\ y) i NOY oT 1995

7 8 CLERA

No. 96-243 » -

—

_

In The

Supreme Court of the United States

October Term, 1996

|

BERNADINE SUITUM,

Petitioner,

vs.

TAHOE REGIONAL PLANNING AGENCY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF

DEFENDERS OF PROPERTY RIGHTS*

AMERICAN HOMEOWNERS FOUNDATION

AMERICAN LAND RIGHTS ASSOCIATION

IN SUPPORT OF PETITIONER

Nancie G. Marzulla**

Lisa M. Jae

DEFENDERS OF

PROPERTY

RIGHTS

6235 33rd St. NW

Washington, DC

20015-2405

(202) 686-4197

November 29, 1996

*Amici listing continued on next page.

** Counsel of Record

[CONTINUED FROM COVER]

BRIEF AMICI CURIAE OF

AMERICAN LOGGERS SOLIDARITY

CITIZENS AGAINST REPRESSIVE ZONING

CITIZENS FOR CONSTITUTIONAL PROPERTY

RIGHTS, INC.

CREATIVE REAL ESTATE MAGAZINE

DAVIS MOUNTAINS TRANS-PECOS HERITAGE

ASSOCIATION

DEFENDERS OF PRIVATE RIGHTS

FARM CREDIT PROPERTY RIGHTS

FOUNDATION

ENVIRONMENTAL CONSERVATION

ORGANIZATION (ECO)

FRONTIERS OF FREEDOM

HEARTLAND INSTITUTE

HILL COUNTRY HERITAGE ASSOCIATION

HILL COUNTRY LANDOWNERS’ COALITION

MAINE CONSERVATION RIGHTS INSTITUTE

NATIONAL ASSOCIATION OF INDUSTRIAL

AND OFFICE PROPERTIES

NATIONAL ASSOCIATION OF

MANUFACTURERS

NATIONAL ASSOCIATION OF REVERSIONARY

PROPERTY OWNERS

NATIONAL CENTER FOR POLICY ANALYSIS

NATIONAL COALITION FOR PUBLIC LANDS

AND NATURAL RESOURCES

NORTHWEST LEGAL FOUNDATION

OREGONIANS IN ACTION LEGAL CENTER

PEOPLE FOR THE WEST! ACCORD CHAPTER

PUTTING PEOPLE FIRST

TAKE BACK ARKANSAS, INC.

TEXAS JUSTICE FOUNDATION

and TRANS TEXAS HERITAGE ASSOCIATION

IN SUPPORT OF PETITIONER

QUESTIONS PRESENTED FOR REVIEW

Be Whether the granting of the potential to transfer one

percent of the right to use a building lot (for which the owner

has been denied all beneficial and productive use), renders the

taking claim not ripe for adjudication?

2. Whether the Fifth Amendment's mandate of "just

compensation" is satisfied by the granting ot transfer

development rights instead of monetary compensation?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...............++ i

TABLE OF AUTHORITIES. ..............::.ccccccceeeeeeeeees iii

IDENTITIES AND INTERESTS OF AMICI CURIAE.....1

STATEMENT OF THE CASE.............ccccccceeeeeseeeeeees 6

SUMMARY OF ARGUMENT .................00ceeeeeeeeeees 7

ARGUMENT. ........-c.sccccccccccscsccecccececeecececcesceoones 11

I. ONCE IT IS CLEAR THAT A PROPERTY

OWNER HAS BEEN DENIED ALL

BENEFICIAL AND PRODUCTIVE USE OF

PROPERTY, COMPENSATION IS OWED

FOR THE TAKING, AND THE TAKING

CLAIM IS RIPE FOR ADJUDICATION. ............. 11

ll. THE FIFTH AMENDMENT MANDATE

OF "JUST COMPENSATION” IS NOT

SATISFIED BY THE GRANTING OF

TRANSFER DEVELOPMENT RIGHTBS............... 15

CONCLUSION. .......0.ccccccccsccccevercceccccscscsscresossoss 18

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

OO) passim

STATUTES

GB EE. © TEED cececccccccsccccccssccessecescscscesccsvecsesoes %

CASES

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles,

_ ££ & § = passim

Jacobs v. United States, 290 U.S. 13 (1933) ............... 17

Lucas v. South Carolina Coastal Council,

ch lc ‘'S!6h Se 0UmRlDUllCUEE—~E passim

MacDonald, Sommer & Frates v. Yolo County,

EAT EET Ee 12

M la igation Company v. United States,

SF eee eeen 16

Penn Central Transp. Co. v. New York,

OO passim

P. ia Coal Co. v. Mahon,

- 0 Se eereneeee 7

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

ee GD ccccercnccpcnsnensesinetpenbanenasoncnneses 11

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 437 U.S. 172 (1985) ..............00cccceees y

il

Pursuant to Rule 37.2 of the Rules of this Court, amici

curiae submit this brief in support of Petitioner.

IDENTITIES AND INTERESTS

OF AMICI CURIAE

Defenders of Property Rights is the nation's only legal

defense foundation devoted exclusively to protecting private

property rights. Defenders of Property Rights engages in

litigation across the county affecting the public interest and the

private property rights of its membership to vigorously protect

those rights considered essential by the framers of the

Constitution.

American Homeowners Foundation (Arlington, VA) is a

nonprofit educational and research organization serving the

nation's sixty-five million homeowners. The Foundation's

mission is to educate homeowners and prospective

homeowners and to protect and advance home ownership.

American Land Rights Association (Battle Ground,

WA) is a non-partisan grassroots coalition of farmers,

ranchers, private property owners, rights holders, loggers,

miners, and outdoor recreation advocates in or near federally

managed areas or who are affected by federal land use or

environmental laws and regulations.

American Loggers Solidarity (Forks, WA) is a broad-

based, grassroots organization made up of individuals, small

businesses, corporations and elected officials at the city,

county and state level in seven states.

Citizens Against Repressive Zoning (Haslett, MI)

works to curb abuses of zoning practices in counties, cities,

villages, towns, townships, and parishes.

Citizens For Constitutional Property Rights, Inc.

(Crestview, FL) is a statewide grassroots organization whose

mission is to secure private property guarantees provided in

the Bill of Rights.

Creative Real Estate Magazine (Rancho Santa Fe, CA)

publishes "How-To Journal For Anyone Who Wants To Make

Money in Real Estate,” sold by subscription nationwide for

over twenty-five years.

Davis Mountains Trans-Pecos Heritage Association

(Alpine, TX) is an association of Texas citizens formed in

response to the abridgment of private property rights in the

Davis Mountains and Trans-Pecos areas.

Defenders of Private Rights (Baker City, OR) is

dedicated to the defense of private rights as envisioned by the

Founding Fathers, and portrayed in the U.S. and Oregon

Constitutions, as originally written.

Farm Credit Property Rights Foundation (Austin, TX)

is a non-profit educational and research organization formed to

further the efforts of protection of property rights through

litigation and legislation. It promotes coordination among

property rights groups to find common strategies to preserve

Fifth Amendment guarantees as intended by the Founding

Fathers.

Environmental Conservation Organization (ECO)

(Hollow Rock, TN) represents more than 500 local, state,

regional and national organizations that promote free-market

alternatives to regulatory environmental protection.

Frontiers of Freedom (Arlington, VA) is a grassroots

membership organization founded to promote the basic ideas

of the Founding Fathers as articulated in the Constitution to

ensure the maximum amount of freedom for every American.

Heartland Institute (Palatine, IL) is a nonprofit public

policy research organization serving the nation's federal and

state elected officials, journalists, Heartland Members and

Hill Country Heritage Association (Lampasas, TX)

embraces the conservation of natural resources in conjunction

with respect for individual property rights.

Hill Country Landowners’ Coalition (Georgetown,

TX) was organized in 1991 to oppose over-regulation of

private property.

Maine Conservation Rights Institute (Lubec, ME) is

dedicated to private property rights and private conservation,

through education and research.

National Association of Industrial and Office

Properties (Herndon, VA) is a professional organization of

5,000 individuals engaged in owning, managing, and

developing industrial and office buildings ‘n the United States

and internationally. Its members include the nation's leading

commercial real estate developers, and also architects, brokers,

master planners, engineers, property managers, banks,

insurance companies, and other real estate financial groups.

National Association of Manufacturers (Washington,

DC) is the nation’s oldest and largest broad-based industrial

trade association. Its 14,000 member companies and

subsidiaries, including 10,000 small manufacturers, employ

eighty-five percent of all manufacturing workers and produce

eighty percent of the nation’s manufactered goods. More than

158,000 businesses are affiliated with the NAM through its

Associations Council and National Industrial Council.

National Association of Reversionary Property

Owners (Issaquah, WA) is a nonprofit foundation whose

major goal is to assist property owners to maintain their

complete land ownership and resist government confiscation.

National Center for Policy Analysis (Dallas, TX) seeks

to develop and promote private alternatives to government

regulation and control, solving problems by relying on the

strengths of the competitive, entrepreneurial private sector.

National Coalition for Public Lands and Natural

Resources (Pueblo, CO) represents 23,000 grassroots

activists across the country and advocates common sense

environmentalism including the protection of private property

rights.

Northwest Legal Foundation (Minot, ND) exists

expressly for the purpose of protecting the rights of

individuals, especially real property rights, against the

invasion of those rights by governmental actions.

Oregonians In Action Legal Center (Tigard, OR) is a

nonpartisan, nonprofit, public interest law center involved in

litigation seeking to protect the constitutional rights of

landowners and counter excessive land use regulation.

People for the West! ACCORD Chapter (Phoenix,

AZ) is a grassroots organization created to support western

communities against the overreaching hand of government.

Putting People First (Helena, MT) is a nonprofit

organization of citizens who support a return to common sense

in man's relationship with nature and civility among men.

Take Back Arkansas, Inc. (Fayetteville, AR) is a private

property rights organization whose goal is to organize like-

minded people at the grassroots level and provide information

about property rights.

Texas Justice Foundation (San Antonio, TX) is a

nonprofit, public interest, litigation foundation that seeks to

protect individual rights, limit government to its appropriate

role, and promote a better business climate in Texas.

Trans Texas Heritage Association (Alpine, TX) is a

Statewide organization dedicated to the protection of

landowners rights. Its members collectively own over fifteen

million acres of land in Texas and other states.

STATEMENT OF THE CASE

In 1972, Petitioner Mrs. Bernadine Suitum and her late

husband acquired an 18,300 square foot building lot in a

developed, residential subdivision located in Incline Village,

Nevada. In 1989, Petitioner submitted a building permit

application with Respondent Tahoe Regional Planning Agency

(TRPA) seeking permission to build a house on the lot.

Respondent denied the building permit application because in

1987 Petitioner's land had been included in a "Stream

Environment Zone" (SEZ).

The regional plan which prohibits any "new land

coverage or other permanent land disturbance" a SEZ,

rendered Petitioner's land ineligible for development.

However, under the regional plan, owners of property in a

SEZ are eligible through a lottery system for certain

transferable development rights (TDR’s). In the instant case,

Petitioner is potentially eligible to transfer development nghts

of 183 square feet, subject to Respondent approval. But as

the trial court concluded as to Petitioner's lot: "The Court

understands that plaintiff may not develop or build on the

parcel of land she owns and that no developmental rights may

be transferred to the property at issue." Pet. App. at D3

(emphasis in original).

After exhausting her administrative remedies,

Petitioner filed suit in the United States District Court for the

District of Nevada, alleging Respondent had taken her

property rights without payment of just compensation under

color of state law in violation of 42 U.S.C. § 1983, and the

Fifth and Fourteenth Amendments to the United States

Constitution.

The district court awarded summary judgment in favor

of Respondent on the ground that the case was not ripe for

adjudication because Petitioner had not attempted to transfer

her development rights to which she may be eligible under the

TDR program.

The court below affirmed the district court decision on

the ground that a TDR is a “use” of property, and because that

use had not been exercised, Petitioner's case was not ripe for

review.

SUMMARY OF ARGUMENT

In 1922, Justice Holmes wrote what turned out to be

the prophetic warning regarding the government's seemingly

insatiable appetite to acquire constitutionally protected property

rights without payment of just compensation:

The protection of private property in the Fifth

Amendment presupposes that it is wanted fer

public use, but provides that it shall not be

taken for such use without just compensation...

When this seemingly absolute protection is

found to be qualified by the police power, the

natural tendency of human nature is to extend

the qualification more and more until at last

private property disappears. But that cannot be

accomplished in this way under the

Constitution of the United States.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 394, 415 (1922).

The case at bar represents nothing less than the government's

latest attempt to evade its constitutional duty to pay for the

property that it has taken.

In 1992, this Court announced the principle that

governs the issue posed in the instant case:

When, however, a regulation that declares

“off-limits” all economically productive or

beneficial uses of land goes beyond what the

relevant background principles would dictate,

compensation must be paid to sustain it.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003,

1030 (1992).

The instant case is exactly like the case presented for

review in Lucas, with one exception. In both Lucas and the

instant case, the government has precluded the property owner

from building a house on an otherwise buildable lot; in this

case, however, the government has also told Petitioner that she

has the right to enter into a lottery process whereby she can

potentially transfer a development right equal to one percent of

the square footage of that lot to someone else's lot somewhere.

Petitioner does not own another lot nor is she interested in

trying to market the development rights to other owners with

the hope that they can put together enough development rights

to build a house on some other property.

The ability to transfer a percentage of development

rights does not constitute a use of the subject property at all.

Thus, the existence of transferable development rights

(TDR’s) in this case does not change the conclusion that

Petitioner's property nights have been taken. The

promulgation of the "Stream Environment Zone" now means

that Petitioner can make absolutely no beneficial or productive

use of her building lot, a nght which background principles of

property law would otherwise dictate that she possess.

In light of the fact that a per se taking occurred in this

case at the point at which Respondent told Petitioner that she

could make no productive or beneficial use whatsoever of her

building lot, the court below's holding that the case was not

ripe for adjudication is simply untenable.' Indeed, as this

Court explained in Williamson County Regional Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), the reason

for the rule that a claim for just compensation is not ripe for

review until the property owner had obtained a “final decision"

from the administrative agency is to ensure that the court can

determine “how the regulations will be applied to respondent's

property.” Id. at 200 (emphasis added).

In short, the takings inquiry focuses on the land

regulated and the associated ownership rights. In the instant

case, there is no question that the regulated lot is off-limits to

development due to its inclusion in the Steam Environment

! The court below held that the damages claim for violation of the

government's obligation to pay just compensation was not ripe for

adjudication, explaining:

We have previously noted that there are "two

independent hurdles to the filing of a [regulatory]

taking claim in federal court against a state or local

government." ... Only the first, known as the

“final decision requirement," is at issue in this case

and it requires Suitum to show that before filing

suit, she sought a "final decision from [TRPA]

regarding the application of the regulation to the

property at issue.”

Pet. App. at A-8.

into her ability to utilize that lot would render a different result.

First English, 482 U.S. at 321 (holding that government may

not avert just compensation requirement where a taking has

already occurred).

Thus, just as this Court in Penn Central Transp. Co. v.

New York, 438 U.S. 104, 137 (1978), held the takings claim

ripe for adjudication even though the government had made the

developable air rights transferable to the owners’ other

buildings in Manhattan, likewise this Court should hold the

instant claim ripe for adjudication and reverse the decision

below.

Finally, the granting of a TDR to another piece of

property does not satisfy the constitutional requirement of just

compensation. This Court has repeatedly held that "just

compensation" means payment of money damages for the fair

market value of any property that has been taken. The

government could not offer the property owner just anything

of value such as a car, stock options, or a seat on the city

council.? Therefore attempts to foist off on an unwilling

property owner so-called equivalents -- regardless of how

potentially valuable -- of just compensation for property that

has been taken fail to pass constitutional muster. At best, as

the Penn Central Court explained:

While these rights may well not have

constituted "just compensation” if a “taking”

had occurred, the rights nevertheless

2 Indeed, given the fact that Respondent asserts that the TDR’s do have a

market value, it should sell the rights and use the proceeds to pay

Petitioner the just compensation to which she is constitutionally entitled.

10

undoubtedly mitigate whatever financial

burdens the law had imposed on llants

and, for that reason, are to be taken into

account in considering the impact of

regulation.

Id at 137.

Thus, the court below not only failed to apprehend the

reality of the facts of this case, but it simply missed the point

of the clear constitutional mandate that "nor shall private

property be taken for public use, without just compensation."

U.S. Const. amend. V. Indeed, Justice Brennan's dissent in

San Diego Gas & Elect.Co. v. City of San Diego, 450 U.S.

621 (1981) well applies to the case at bar: “This Court has

consistently recognized that the just compensation requirement

in the Fifth Amendment is not precatory: Once there is a

‘taking,’ compensation must be awarded.” /d. at 654

(emphasis in original).

ARGUMENT

I. Once It Is Clear That A Property Owner Has

Been Denied All Beneficial and Productive Use of

Property, Compensation Is Owed For The Taking,

And The Taking Claim Is Ripe For Adjudication.

The court below erroneously concluded that because

Petitioner may have the right to transfer one percent of the use

of her lot to another lot, that her taking claim was not ripe for

adjudication. However, in a ripeness inquiry in the context of

a zoning regulation, this Court only looks at the uses regarding

the property in question -- not on future uses of other land

which the owner may or may not acquire. Penn Central, 438

U.S. at 136. In the leading case in this area, MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340 (1986), the

Court looked exclusively at the ability of the property owner to

use the land for which zoning had been denied, not at other

land he may or may not own:

It follows from the nature of a regulatory

takiiigs claim that an essential prerequisite to

its assertion is a final and authoritative

determination of the type and intensity of

development legally permitted on the subject

property. A court cannot determine whether

regulation has gone “too far" unless it

knows how far the re ion goes ... Until a

property owner has ined a final decision

regarding the se of the zoning

ordinance and ivision regulations to its

property, it is impossible to tell whether the

land retains any reasonable beneficial use or

whether existing expectation interests have

Id. at 350 (emphasis added).

There is no question in this case regarding how far the

SEZ regulations have gone. They have deprived Petitioner of

all of her rights to make reasonable and beneficial use of her

building lot. Pet. App. at D-3. Thus, under this Court's

holding in Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992), a per se taking of Petitioner's property rights

has occurred. Moreover, because Petitioner's property rights

have been taken, Respondent is now obligated to pay just

compensation for that taking. First English Evangelical

12

Lutheran Church of Glendale v. County of Los Angeles, 482

U.S. 304, 320 n. 10(" Though, as a matter of law, an

illegitimate taking might not occur until the government refuses

to pay, the interference that effects a taking might begin much

earlier, and compensation is measured from that time.”).

The court below's holding would allow Respondent to

evade its constitutional duty to pay just compensation through

employment of the fiction that the night to potentially transfer

one percent of the use of her building lot to another lot

elsewhere is a “use” of the original lot.’

On its face, however, the ability to transfer

development rights to another lot which Petitioner does not

even own (and even if she did would not allow her » build a

house because of the square footage she can potentially

transfer) is not a use of the original lot. Rather, the holding

below simply allows government -- through a TDR scheme --

to truncate the Fifth Amendment's guarantee of just

compensation by employment of a fiction that a TDR is a “use”

of the original lot.

Exactly a decade ago this Court faced a similar attempt

by government to evade its constitutional duty to pay just

compensation for the taking of private property. First English

482 U.S. 304 (1987). The state of California had argued in

3We recognize that TRPA's regulatory scheme is unique and conclude

within that scheme, transfer of development rights is a ‘use’ of SEZ

property. ... That the possible uses under TRPA's unusual procedure are

transfers of development rights from Suitum's property rather than, for

example, reapplications of development plans for her property, is

immaterial.

Pet. App. at A-19-10.

13

First English that the Fifth Amendment's just compensation

clause was a mere condition upon the exercise of the power of

eminent domain. By this logic, California sought to limit

property owners’ remedy for an uncompensated taking to

invalidation of the offending statute. Thus, the California legal

system simply defined away the just compensation remedy by

declaring that there could be no uncompensated takings, only

invalid regulations, thereby protecting and encouraging the

proliferation of confiscatory zoning and land use regulation.

However, in First English this Court flatly rejected the

“California rule,” holding that the rule unconstitutionally

truncated the Fifth Amendment right to a money remedy. /d.

at 317. Most significantly, the Court reasoned that denying an

owner compensation for all those years in which he held the

property but was denied its full use would be a constitutionally

inadequate remedy: “[WJhere the government's activities have

already worked a taking of all use of property, no subsequent

action by the government can relieve it of the duty to provide

compensation for the period during which the taking was

effective." Id. at 321.

This Court's refusal to allow government to avoid its

constitutional duty to pay just compensation for the property

that it has taken by engaging in subsequent actions to ‘undo’

the taking have most recently been rejected by this Court in

Lucas:

in-fact in this case, with respect to the

pre- placed

the use of his parcels by the Beachfront

14

Management Act. That there is a

discretionary “special permit” by

which he may regain -- for the future, at least

- beneficial use of his land goes only to the

prudential ” ripeness” of Lucas's challenge,

and for the reasons discussed we do not think

Sey Oe ae

Lucas, ho U.S. 1003, 1012-13 (citations omitted).

Just as this Court refused to allow government to

undo its taking by subsequent actions in Lucas and First

English, so should this Court in the instant case refuse to

allow Respondent to avoid its constitutional duty to pay for the

property that it has taken by its TDR scheme regarding future

property which Petitioner may or may not be eligible to

acquire.

Il. The Fifth Amendment Mandate of " Just

Compensation" Is Not Satisfied By The Granting of

Transfer Development Rights.

This Court long ago held that just compensation for the

taking of private property means payment of money damages:

The noun “compensation,” standing by itself,

carries the idea of an equivalent. Thus we

speak of damages by way of compensation, or

compensatory damages, as distinguished from

unitive or exemplary damages, the former

the latter imposed by way / of punishment. So

that if the adjective "just" had been omitted,

ee ee on ey OS eeetey

should not be taken without compensation, the

natural import of the language would be that

the compensation should be the equivalent of

15

the property. And this is made emphatic by

the adjective "just." There can, in view of the

combination of those two words, be no doubt

that the com —. must be a full bre

perfect equivalent property taken.

this just compensation, it will be noticed, is

for the property, and not to the owner.

Monongahela Navigation Co. v. United States, 148 U.S. 312,

326 (1893).

In sharp contrast, this Court has never suggested,

much less held, that TDR's can be forced on an unwilling

property owner as a substitute for just compensation.* The

Fifth Amendment itself contains no limitation or exception for

its guarantee that when private property rights are taken for

public use, just compensation must be paid to the owner. First

English Evangelical Lutheran Church of Glendale v. County

of Los Angeles, 482 U.S. 304, 316 n.9 (1987).

In First English, this court overruled the California line

of cases that had disallowed damages incurred prior to the

actual invalidation of a challenged ordinance. In so doing,

this Court reaffirmed the basic proposition that "the [Fifth]

4 Penn Central, 438 U.S. 104 (1978), involved New York City's refusal

to allow the property owner to construct an office building in excess of 50

stories atop one of the most historically significant buildings in the city

-- Grand Central Station. Employing the well-known three-factor

analysis, which ¢ atails analysis of the character of the government's

action, economic impact of the regulation, and reasonable investment-

backed expectations of the property owner, the Court reasoned that

because Penn Central could still profit from ownership of the train

terminal, and obtain a reasonable return on its investments, no taking had

occurred. /d. at 136. In short, the posture of Petitioner's position vis-a-

vis the offer of TDR’s is in no way similar to that of the property owner

in Penn Central. Moreover, the Penn Central Court had an independent

basis for its conclusion that no taking had occurred, regardless of the fact

that the TDR’s may have offset the economic impact of the permit denial.

16

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. Thus, government action that works a

taking of property rights necessarily implicates the

‘constitutional obligation to pay just compensation.” /d. at

315 quoting Armstrong v. United States, 364 U.S. 40, 49

(1960)(emphasis in original). Thus, just as this Court flatly

rejected the California rule that invalidation of a regulation that

infringed private property rights could satisfy the just

compensation requirement, so should this Court reject

Respondent's attempt to circumvent the Constitution by use of

TDR's.

Similarly, in Jacobs v. United States, 290 U.S. 13

(1933), this Court reviewed the constitutionality of a lower

court's holding that interest was not recoverable on a property

owner's claim for just compensation because the statute under

which suit had been brought did not authorize the payment of

interest. This Court rejected the lower court's conclusion that

the constitutional rights to just compensation could be limited

by statute:

The amount recoverable was just

compensation, not inadequate compensation.

The concept of just compensation is

comprehensive and includes all elements, "and

no specific command to include interest is

necessary when interest or its equivalent is

= of such compensation.” The owner is not

ted to the value of the at the time

of the taking; he is "entitled to addition as

17

will produce the full equivalent of that value

paid contemporaneously with the taking.”

Id. at 16-17 (citation omitted).

By the same token, Petitioner in this case is also

entitled to full compensation, not the inadequate grant of the

potential to transfer one percent of the use of her property to

someone else's lot. Although it may well be that the use of

TDR’s may be a legitimate way to offset the economic impact

of the SEZ on Petitioner's property or a desirable way to

obtain funds through the sale of such rights to pay

Respondent's cost of paying damages for the taking, in no

way can TDR's be seen as satisfying constitutionally required

just compensation.

CONCLUSION

For all of the foregoing reasons, amici curiae urge this

Court to reverse the decision below.

Respectfully submitted,

Nancie G. Marzulla

Lisa M. Jaeger

DEFENDERS OF

PROPERTY RIGHTS

6235 33rd Street, N.W.

Washington, D.C. 20015

202- 197

November 29, 1996

18