# Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0011%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 725

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0011%3A13. Public record. Not legal advice.