Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

No. 96-243

In the Paeer oes

Supreme Court of the United States

October Term, 1996

BERNADINE SUITUM,

Petitioner,

TAHOE REGIONAL PLANNING AGENCY,

Respondent.

o

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

e

AMICUS CURIAE BRIEF OF

THE MAYHEWS, ET AL. AND

SECTION 28 PARTNERSHIP, LTD.

SUGGESTING REVERSAL

e

*Charles L. Siemon, *Counsel of Record

Marcella Larsen

Siemon, Larsen & Marsh

433 Plaza Real, Suite 339

Boca Raton, Florida 33432

(407) 368-3808

Attorneys for the Mayhews, et al. and

Section 28 Partnership, Lid.

November, 1996

TABLE OF CONTENTS

(Cont'd)

PAGE

Ill. THE NINTH CIRCUIT ERRED IN

REQUIRING MRS. SUITUM TO UTILIZE

HER TRANSFERABLE DEVELOPMENT

RIGHTS ASA PREREQUISITE TO SUIT ..... 26

CS oo vecisvinckveeneau 27, 28

PROOF OF SERVICE .................. 29

TABLE OF CITED AUTHORITIES

CASES

PAGE

Agins v. City of Tiburon,

EO eee passim

Babbitt v. United Farm Workers National Union

ES 8

Carey v. Piphus,

ES pve ccevecdetcceccecoces 6

Dolan v. City of Tigard,

$12 U.S. 374 (1994) ..........6 0 eee 9, 18, 21, 25

First English Evan. Luth. Church v. City of Los Angeles,

482 U.S. 304 (1987) ............. 9, 11, 17,21, 25

Hernandez v. City of Lafayette,

643 F.2d 1188 (Sth Cir. 1981) ........... 8, 13,14

Hodel v. Irving,

481 U.S. 704 (1987) ............65-. 13, 14, 21, 25

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992).......... 4, 9, 18, 20, 21, 25

MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340 (1986) .. 0... cee eee passim

iv

TABLE OF CITED AUTHORITIES

(Cont'd)

CASES

PAGE

Monell v. Dept. of Social Services of the City of New York,

BESS, Gob tvdotccvevcdddsvvecs 13,14

Nollan v. California Coastal Commission,

GD GR Ga Ee o cc cecccccoccens 9, 17,21, 25

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

BO Te eee passim

Pennsylvania Coal Co. v. Mahon

SE BE 6 vb cccccccccncascesessees 7

Pennell v. City of San Jose,

Fp ee Sv cvccsdcocesceststee 18, 21, 25

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

GOED, Gad GIS cc cc ccccccccoccccess passim

Suitum v. Tahoe Regional Planning Agency,

80 F.3d 359 (9th Cir. 1996),

cert. granted, 117 S. Ct. 293 (1996) ... 2, 3,4, 6,27

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) ...... passim

STATUTES

Civil Rights Act of 1871, 42 U.S.C.A. § 1983 ......... 13

MISCELLANEOUS

Kendig, L., PERFORMANCE ZONING

(American Planning Association 1978) ......... 12

l

AMICUS CURIAE BRIEF OF THE MAYHEWS,

ET AL. AND SECTION 28 PARTNERSHIP, LTD.

°

INTERESTS OF AMICUS CURIAE

Amicus curiae, Charles Mayhew, Sr., Charles Mayhew,

Jr., the Estate of Audrey Mayhew, Sunnyvale Properties, Ltd.,

and Section 28 Partnership, Ltd. (hereinafter collectively

referred to as, “amicus curiae”), are property owners in the

States of Texas and Florida who are interested in the

formulation of a clear ripeness standard in land use cases which

will result in the predictable application of an unambiguous

rule nationwide. The Mayhews and Section 28 have been

embroiled in land use litigation for nine and three quarter and

four years respectively involving inconsistent and highly

unequitable application of the ripeness doctrine. Both the

Petitioner, Bernadine Suitum, and the Respondent, Tahoe

Regional Planning Agency, have granted their consent to the

filing of this amicus curiae brief.

2

.

STATEMENT OF CASE

In this case, a property owner’s constitutional

challenges to the application of land use regulations to her

property were held not to be “ripe” even though the Tahoe

Regional Planning Agency had reached a final determination

that she would not be permitted to make any physical use of her

property. In Suitum v. Tahoe Regional Planning Agency, 80

F.3d 359 (9th Cir. 1996), cert. granted, 117 S. Ct. 293 (1996),

the Court of Appeals for the Ninth Circuit held that a// of the

Plaintiff's claims -- a regulatory taking claim, a due process

claim and an equal protection claim -- were premature under

the first prong of the ripeness standard formally enunciated in

Williamson County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985).

The basis for the Ninth Circuit’s ruling was that the

Plaintiff, Mrs. Suitum, had not sought authorization for

transferable development rights (“TDRs”) and thus the

Defendant, the Tahoe Regional Planning Agency (“TRPA”),

had not made the requisite “final decision” under the first prong

of the Hamiiton Bank ripeness test:

Without an application for the transfer of

development rights, TRPA is foreclosed from

determining the extent of the use of Suitum’s

property. By failing to apply to the TDR

program, Suitum denies TRPA the ability to

grant a “different form[]) of relief ... which

might abate the alleged taking.” Without

3

pursuit of the transfer of development rights, we

cannot know whether the regulations have gone

too far because at this point, no one knows how

far the regulations have gone. Without

attempting to transfer the rights she currently

possesses, Suitum cannot know the “nature and

extent of permitted development{,]” and thus

cannot know the regulations’ full economic

impact or the degree of their interference with

her reasonable investment-backed expectations,

two critical components of a regulatory taking

claim analysis.

Suitum, 80 F.3d at 362-63 (citations omitted). This Court

granted Mrs. Suitum’s Petition for Writ of Certiorari.

Amicus curiae respectfully submits that: 1) it is clear

from the face of TRPA’s regulations and the final decision of

TRPA, that Mrs. Suitum will not be permitted by TRPA to

make any physical use of her property itself; and 2) the amount

or quantum of TDRs available to Mrs. Suitum is ascertainable

from the face of the regulations themselves. The regulations do

not permit any transfers to Mrs. Suitum’s property; the only

transfers which may occur are to properties other than the

property which is the subject of the instant litigation.' Thus,

just as Mrs. Suitum’s rights with respect to the on-site use of

her property are clear, so are the number or amount of TDRs

Mrs. Suitum may utilize off-site.

' See Petition for Writ of Certiorari at 6-8, and Appendix F which

is attached to the Petition for Writ of Certiorari.

4

TRPA has made a final decision not to permit Mrs.

Suitum any on-site development rights. This “final decision”

is ascertainable from the plain language of TRPA’s regulations,

but Mrs. Suitum went further and gave TRPA another chance

to consider whether any on-site use would be permitted through

her submission of building plans which were rejected, as was

a subsequent appeal. The existence of the potential off-site use

of TDRs to mitigate Mrs. Suitum’s inability to engage in any

on-site use of her property -- or whether the TDR mechanism

might be equated with “just compensation” -- is immaterial to

the issue of whether there has been a final decision. In this

case, TDRs are only relevant to a trial court determination of

whether in fact Mrs. Suitum’s property has been “taken,” so as

to require the payment of just compensation.

Sd

SUMMARY OF ARGUMENT

Amicus curiae submits that this Court should reverse

the Ninth Circuit’s decision in Suitum, 80 F.3d 359. That is so

because TRPA indisputably made a final decision regarding a

meaningful application for the development of Mrs. Suitum’s

property -- namely, no on-site development would be permitted

on her property, effectively sterilizing the property and

requiring it to be kept in its “natural state,” Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1018 (1992), which

constituted a sufficient factual setting for constitutional

adjudication -- a concrete controversy ripe for review.

Whether or not the possibility of using TDRs “off-site”

in any way mitigated the onerous effect of the application of

5

TRPA’s regulations to the Suitum property has nothing to do

with concreteness of the controversy, but rather has to do with

whether Mrs. Suitum can demonstrate as a matter of fact that

she has been denied all economically viable use of her

property. It may be that Mrs. Suitum is ill-advised to proceed

in the face of the unresolved factual matter of the potential

value of TDRs, just as the Penn Central petitioners were il!-

advised to proceed with a takings challenge based on the denial

of a single, “grandiose” plan of development:

. . . [i}t simply cannot be maintained, on this

record, that appellants have been prohibited

from occupying any portion of the airspace

above the Terminal. While the Commission’s

actions in denying applications to construct an

office building in excess of 50 stories above the

Terminal may indicate that it will refuse to

issue a certificate of appropriateness for any

comparably sized structure, nothing the

Commission has said or done suggests an

intention to prohibit ary construction above the

Terminal.

Penn Central Trans. Co. v. City of New York, 438 U.S. 104,

136-137 (1978).

But just as this Court had jurisdiction in Penn Central, amicus

curiae submits that this Court and the lower courts have

jurisdiction sub judice in this matter.

6

~

Amicus curiae submits that Suitum, 80 F.3d 359, and

other lower federal and state cases make clear the need for a

plain exposition of the ripeness standard in land use cases.

Amicus curiae respectfully submits that the ripeness

doctrine is more than a matter of academic curiosity. In the

United States, the concept of property exists, not as an

abstraction, but as the "yield" of a tension between the

individual freedom to own and use property and the inherent

power of the government to regulate for the public health,

safety and welfare. The constitutional framework for the

tension between public and private interests in the use of

private property, however, is not a simple bright line test:

... this Court, quite simply, has been unable to

develop any “set formula" for determining

when "justice and fairness" require that

economic injuries caused by public action be

compensated by the government, rather than

remain disproportionately concentrated on a

few persons.

Penn Central, 438 U.S. at 124. How far is “too far” is

determined by “the particular circumstances [in that] case" in

what are “essentially ad hoc, factual inquiries,” Jd., and it is in

failing to provide an effective and efficient forum for these ad

hoc determinations that the lower federal courts and many state

courts’ treatment of rineness threatens the very existence of

property rights.

Put plainly, “[rJights, constitutional and otherwise, do

not exist in a vacuum.” Carey v. Piphus, 435 U.S. 247, 254

7

(1978). In the absence of efficient and effective judicial

review of the application of land use regulations to individual

parcels of land, property rights exist only at the whim of the

regulator. If the ripeness doctrine can be used to shield local

government planning and zoning actions from judicial review

by requiring useless applications for development approval

which are not economically viable or repeat applications on the

hope that a less “grandiose” plan might find favor with the

local authorities, then there are effectively no property “rights.”

Justice Holmes long ago warned that “the natural tendency of

human nature is to extend the qualification more and more until

at last private property disappears.” Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922). The ripeness rulings of the

lower federal courts and many state courts which require

multiple applications for development approval and useless and

futile acts should not be allowed to provide cover for this

“natural tendency.”

At its core, the ripeness doctrine is nothing more than

a modern expression of the time-honored juridical rule

requiring a concrete controversy as a predicate to constitutional

adjudication:

The difference between an abstract question and

a “case or controversy” is one of degree . . .

[t]he basic inquiry is whether the “conflicting

contentions of the parties . . . present a real,

substantial controversy between parties having

adverse legal interests, a dispute definite and

concrete, not hypothetical or abstract.”

Babbitt v. United Farm Workers National Union, 442 U.S. 289,

297-298 (1979)(citations omitted).

In the hands of the lower federal courts and many state courts,

however, the ripeness doctrine has been transmogrified into a

Sisyphean endurance course of multiple applications for

development permission and of useless and futile acts.

Consequently, the application of local government land use

regulations to individual parcels of land are immunized from

judicial review for all but the wealthy and very patient. Amicus

curiae submits that a careful reading of this Court’s decisions

make it clear that the ripeness doctrine is a simple standard

intended to ensure a sufficiently factual setting for

constitutional adjudication -- nothing more and nothing less.

Amicus curiae respectfully submits the following

articulation of this Court’s ripeness holdings for the Court’s

consideration and prays this Court confirm its contours and

content:

1. As applied, economically beneficial use, justice and

and equal protection challenges to land use regulations

which have been in effect over a period of time are ripe

when a final decision is made in regard to a meaningful

application for development approval (e.g., Hernandez

v. City of Lafayette, 643 F.2d 1188 (Sth Cir. 1981);

Penn Central, 438 U.S. 104); and

2. As applied, economically beneficial use, justice and

9

and equal protection challenges to newly enacted land

use regulations are ripe:

1) automatically, if development rights are clear

from regulations (e.g., First English Evan. Luth.

Church v. City of Los Angeles, 482 U.S. 304 (1987);

Lucas, 505 U.S. 1003); or

2) if development rights are not clear from the face

of regulations (e.g., Penn Central, 438 U.S. 104; Agins

v. City of Tiburon, 447 U.S. 255 (1980); Hamilton

Bank, 473 U.S. 172; MacDonald, Sommer & Frates v.

Yolo County, 477 U.S. 340 (1986)):

a) when a local government makes a final

decision in regard to a meaningful application

for development approval (e.g., Penn Central,

438 U.S. 104; Nollan v. California Coastal

Commission, 483 U.S. 825 (1987); Dolan v.

City of Tigard, 512 U.S. 374 (1994)); or

b) when a local government otherwise

takes an authoritative position ia regard to

development rights (e.g., San Diego Gas and

Electric Co. v. City of San Diego, 450 U.S. 621

(1981)); or

c) where the preponderance of the

evidence demonstrates that it would be futile or

“pointless” to apply for development approval.

(MacDonald, 477 U.S. 340; Lucas, 505 U.S.

1003.)

10

Under this articulation of the Court’s ripeness standard,

the application and availability of TDRs is irrelevant to the

question of ripeness. TRPA made a final decision in regard to

a meaningful application for development approval and Mrs.

Suitum’s TDR rights are clear from the face of TRPA’s

regulations.

©

ARGUMENT

1.

THE PRECEPTS OF THE SUPREME COURT’S

RIPENESS DOCTRINE: REQUIREMENT OF

A FINAL DECISION, NOT PRO FORMA

MULTIPLE APPLICATIONS

Amicus curiae respectfully submits that a careful review

of this Court’s ripeness decisions reveals a consistent and

reasonable standard for when a sufficient factual setting exists

to support constitutional adjudication of as applied challenges

to land use regulations. If the development rights appurtenant

to a parcel of land are all clear from the face of the challenged

regulations, then a constitutional challenge is ripe. If

development rights under the challenged regulations are not

clear, then a constitutional claim is not ripe until a final

decision has been made by the appropriate agency in regard to

a meaningful application for development approval, unless the

permitted development rights are otherwise apparent or it is

clear that an application for development approval would be a

useless or futile act.

11

A. Supreme Court Precedents

In the land use arena,’ the origins of the ripeness

doctrine are found in Penn Central, 483 U.S. 104, where the

Supreme Court held that the fact that the City had denied one

particularly “grandiose” plan of development did not

necessarily mean that the City would not approve a less

ambitious plan and that therefore it was not possible for the

Court to find that the planning and zoning actions of the City

had effected a taking under the Fifth and Fourteenth

Amendments. Although this Court found that it was possible

that the City might approve a less-grandiose plan, the Court did

2 Amicus curiae respectfully submits that the context in which the

ripeness doctrine evolved is important. In the early 70's, the “taking issue”

became the focal point of land use law -- if a regulation went “too far,” was

it invalid, or was it a taking which required compensation? Government

the only relief should be available while property owners argued for just

compensation. In a series of cases including Penn Central, 483 U.S. 104,

Agins, 447 U.S. 51, San Diego Gas, 450 U.S. 621, Hamilton Bank, 473 U.S.

172, and MacDonald, 477 U.S. 340, the Supreme Court wrestled with the

taking issue, however it was not until First English, 482 U.S. 302, that the

Court finally held that the constitutional imperative for just compensation

applies to a regulation which is adjudicated to go “too far.” Although the

taking issue debate took almost 15 years to resolve, it became increasingly

apparent in the late 70's and early 80's that the Court would ultimately rule

in favor of property rights and hold that just compensation was required for

enforcement of an overly restrictive regulation. In the face of this

public planning and regulation of the private use of private property, tried

to stave off a ruling by invoking the concrete controversy requirement

defense which had helped to avoid a ruling on the merits of the taking issue

in Agins, 447 U.S. 51. It was out of this attempt to “avoid” the merits at all

cost that the ripeness doctrine emerged.

12

not dismiss the matter for want of subject matter jurisdiction

because the property owner had only tendered one application.

Instead the Court adjudicated the concrete controversy at hand

-- whether the planning and zoning actions of the City had

effected a taking -- and found in favor of the City.

The ripeness concept was next considered in a facial

takings claim in Agins, 477 U.S. 255. In Agins, the City

adopted a new set of zoning regulations which downzoned

property with spectacular views of San Francisco Bay. The

new zoning district allowed a range of densities of one to five

units per acre, based on a complex set of performance

standards.’ A property owner sued, challenging the regulations

as a taking and seeking just compensation under the

Constitution of the United States.

Although “ripeness” was not directly raised in Agins,

the Court’s discussion of the issue presented established the

germ which would ultimately give rise to the doctrine:

The [California Supreme Court] did not

be unconstitutional if applied to prevent

appellants from building five homes. Because

the appellants have not submitted a plan for

development of their property as the

ordinances permit, there is as yet no concrete

controversy regarding the application of the

specific zoning provisions. Thus, the only

> See generally, Kendig, L., PERFORMANCE ZONING (American

Planning Association 1978).

13

question properly before us is whether the mere

enactment of the zoning ordinances constitutes

a taking.

Agins, 477 U.S. at 260 (citations omitted)(emphasis added).

The next year, the Supreme Court heard San Diego Gas,

450 U.S. 621, but once again found itself unable to reach the

merits of the taking issue because of deficiencies vis-a-vis

federal jurisdiction -- the decision of the California court was

determined not to be final. Importantly, San Diego Gas was

“ripe” in terms of a concrete controversy even though no

application for development approval had been submitted. In

San Diego Gas, ripeness was grounded in the actions of the

County which disclosed the County’s authoritative position in

regard to San Diego Gas’ development rights.

Between San Diego Gas, 450 U.S. 621, and the next

major Supreme Court encounter with the taking issue in Hode/

v. Irving, 481 U.S. 704 (1987), the taking issue, suffused with

a new dynamic in municipal litigation arising out of Monell v.

Dept. of Social Services of the City of New York, 436 U.S. 658

(1978),* percolated through the district and circuit courts in

cases like Hernandez, 643 F.2d 1188:

. . . Where the application of a general zoning

ordinance to a particular person’s property does

not initially deny the owner an economically

viable use of his land, but thereafter does come

* In Monell, 436 U.S. 658, the Court held that a municipality was a

person for purposes of the Civil Rights Act of 1871, 42 U.S.C.A. § 1983.

14

to result in such a denial due to changing

circumstances, or where a zoning classification

initially denies a property owner an

economically viable use of his land, but the

owner delays or fails to timely seek relief from

such a classification, we conclude that a

“taking” does not occur until the municipality’s

governing body is given a realistic opportunity

and reasonable time within which to review its

property and to correct the inequity.

Hernandez, 643 F.2d at 1200.

In Hodel, 481 U.S. 704, an as applied constitutional

challenge to section 207 of the Indian Land Consolidation Act

was rejected as not being ripe because the application of the

statutory regime at issue to individual parcels of land was not

clear from the face of the statute and no applications for use

authorization had been requested.

In 1985, the Supreme Court took up Hamilton Bank,

473 U.S. 172, where the Sixth Circuit had held that a local

government decision to downzone a previously approved

subdivision constituted a taking and awarded just

compensation. This Court held that on the record before the

Court, the taking issue was premature because of the

unexplored possibility that the subdivision could be developed

as previously approved:

As the Court has made clear in several recent

decisions, a claim that the application of

15

government regulations effects a taking of a

property interest is not ripe until the

government entity charged with implementing

the regulations has reached a final decision

regarding the application of the regulations to

the property at issue.

Hamilton Bank, 473 U.S. at 186. Simply put, the Court found

that the taking issue was not yet a justiciable controversy

because of the uncertainty as to the application of the County’s

planning and zoning regulations to the subdivision.

Importantly, the key element of this Court’s holding in

Hamilton Bank was the fact that the application for

development approval was not meaningful. That was so

because the applicable subdivision regulations required that an

applicant for subdivision approval secure all variances

necessary for the proposed subdivision. The property owner’s

refusal to obtain required variances meant, as a matter of fact

and law, that the application was not meaningful:

Indeed, in a letter to the Commission written

shortly before its June 18, 1981, meeting to

took the position that it would not request

The Commission’s regulations clearly indicated

that unless a developer applied for a variance in

writing and upon notice to other property

owners, “any condition shown on the plat which

would require a variance will constitute grounds

for disapproval of the plat.” Thus, in the face of

16

respondent’s refusal to follow the procedures

for requesting a variance, and its refusal to

it would require, respondent hardly can

maintain that the Commission’s disapproval of

the preliminary plan was equivalent to a final

decision that no variances would be granted.

Hamilton Bank, 473 U.S. at 190.

The year after Hamilton Bank, 473 U.S. 172, this Court

avoided the merits of the taking issue in MacDonald, 477 U.S.

40, by once again invoking the ripeness doctrine. In

MacDonald, a property owner sought subdivision approval.

The County denied the plat and the property owner sought just

compensation in an inverse condemnation action. The

presented to the Supreme Court by the property owner seeking

determination of the merits of the taking issue. The Court once

again demurred, however, on the grounds that the denial of a

subdivision plat did not constitute a final decision as to the

application of the County’s planning and zoning regulations:

Until a property owner has “obtained a final

decision regarding the application of the zoning

ordinance and subdivision regulations to its

property,” “it is impossible to tell whether the

land retain{s] any reasonable beneficial use or

whether [existing] expectation interests ha[ve]

been destroyed."

17

MacDonald, 477 U.S. at 349 (citations omitted). This Court’s

decision was based on a record which showed that the plat was

denied because of deficiencies in the application and therefore

was not a meaningful appli ation; however, the conservation

coalition claimed that the decision required multiple

applications in order for a taking claim to be ripe.

In the years after MacDonald, the lower courts, at the

insistence of besieged government lawyers, have advocated all

manner of ripeness doctrine defenses to avoid the merits of the

taking issue, even though the Supreme Court made it clear in

1987 that:

. . » Where 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.

First English, 482 U.S. at 321.

In First English, the constitutional challenge was ripe

even though no application for development approval had been

submitted. Ripeness was grounded on the facts that the

challenged regulations were newly enacted and that the

property owner’s right to use its property was clear from the

face of the regulations. Similarly in Nollan, 483 U.S. 825,

decided during the same term, a takings challenge was ripe

after a single decision in regard to one application for

development approval.

18

One year later, in Pennell v. City of San Jose, 485 U.S.

1 (1988), this Court found that a takings claim to a rent control

ordinance was not ripe for as applied review because the actual

application of the ordinance to an individual property was not

clear from the face of the regulations and no application for

approval had been submitted.

Then, in Lucas, 505 U.S. 1003, the state court found

that the property owner’s development rights were clear on the

face of the challenged regulations and this Court held that the

constitutional challenges were ripe for adjudication

Finally, in Dolan, 512 U.S. 374, a challenge to a

development exaction was found to be ripe based on a final

decision on a meaningful application for development

approval.

B. Multiple Applications or Applications for All

Possible Uses Are Not Required, and the Futility

Doctrine May Render Any Application “Pointless”

In Hamilton Bank, the Court formally established the

simple and succinct "final decision" ripeness test:

... a claim that the application of government

regulations effects a taking of a property

interest is not ripe until the government entity

charged with implementing the regulation has

reached a final decision regarding the

application of the regulations to the property at

issue.

19

Hamilton Bank, 473 U.S. at 186 (emphasis added). The

Hamilton Bank Court concluded that a "final decision," under

the particular facts of the case, required both a "plan for

developing [the] property" and an application for a variance.

Hamilton Bank, 473 U.S. at 187-88. The variance requirement

in Hamilton Bank was based on the factual circumstances of

that case wherein the regulations specifically noted that a

variance was required in addition to plat approval to correct

any deficiencies in the application. Hamilton Bank, 473 U.S. at

189 n.10 (quoting regulations). A variance was required

because, based on the record before the Court, a variance could

have resolved the minor size and configuration problems raised

by the local government in denying the application. See

Hamilton Bank, 473 U.S. at 193 (variance required to

determine whether the landowner could “develop the

subdivision in the manner [it] proposed”). No per se

requirement of multiple applications or applications for every

conceivable use was adopted by the Court.

Subsequent to its holding in Hamilton Bank, the

Supreme Court found the just compensation taking claim in

MacDonald, 477 U.S. 340, to be unripe. In MacDonald, the

Court held that the County's rejection of a preliminary

subdivision plan which it determined had failed to adequately

deal with several infrastructure issues, was not a "meaningful

application" and that the County's rejection did not constitute

a "final decision." On the record in those proceedings, there

was still a possibility that "valuable development" might be

permitted. Importantly, zoning was not at issue in MacDonald

-- only the layout of the project was subject to review.

MacDonald, 477 U.S. at 351 and 353 n.8. Because the property

owner's application, which was denominated "preliminary,"

20

was deficient in several respects, the Court determined that it

was not "meaningful" and that there was no final decision as to

what development would be permitted.

MacDonald did not hold, and neither has this Court

ever held, that more than one application is required before a

claim is ripe for review, just that “a meaningful" application

must be submitted before the Hamilton Bank test will be

satisfied. Both before and after MacDonald, the Supreme

Court has uniformly held that "meaningful" means a valid

application, something more than no effort at all to comply with

local regulations.’ Indeed, the Supreme Court specifically

nc ied that the doctrine should not be used to work injustices:

A property owner is of course not required to

resort to piecemeal litigation or otherwise unfair

procedures in order to obtain this determination.

MacDonald, 477 U.S. at 352 n.7. MacDonald is further limited

by the fact that the Court specifically determined that there

were remaining economically viable uses available to the

property. MacDonald, 477 U.S. at 345, 351 and 352 n8.

Because of this conclusion, and the fact that the initial

application was only preliminary and inadequate in several

respects, the Court determined that there had been no final

decision.

’ Compare Agins, 447 U.S. at 260, (no application whatsoever

renders claims unripe) with Lucas, 505 U.S. at 1012 n.3 (no application

required where application would be "pointless”).

21

Finally, this Court has also made it clear that no

application will be required where such application would be

futile or “pointless,” Lucas, 505 U.S. at 1012 n.3; or said

another way, no application is required where the regulations

are clear on their face as to what development will be allowed.

Il.

TOWARDS A UNIFIED STATEMENT

OF THE RIPENESS REQUIREMENT

IN LAND USE CASES AND THE NINTH

CIRCUIT’S DEPARTURE FROM THE RULE

Amicus curiae respectfully submits that the precedents

of this Court’s ripeness decisions in Penn Central, 438 U.S.

104, Agins, 447 U.S. 255, San Diego Gas, 450 U.S. 621,

Hamilton Bank, 473 U.S. 172, MacDonald, 477 U.S. 340,

Hodel, 452 U.S. 264, First English , 482 U.S. 304, Nollan, 483

U.S. 825, Pennell, 485 U.S. 1, Lucas, 505 U.S. 1003, and

Dolan, 512 U.S. 374, make clear the Ninth Circuit’s error in

requiring Mrs. Suitum to pursue TDRs as a prerequisite to suit.

What emerges from careful examination of these

Supreme Court ripeness cases is a relatively simple rule which

may be restated as two general rules.

First, as was the case in First English, 482 U.S. 304 and

Lucas, 505 U.S. 1003 (no use of property allowed pursuant to

the terms of regulations themselves), a land use case will

automatically be ripe for review where the development rights

are clear from the regulations. The property owners’ claims

were ripe in First English and Lucas because it was clear from

the face of the regulations -- even though there had been no

22

applications filed whatsoever in either case -- that no use would

be permitted of either property. Similarly, Mrs. Suitum’s

claims are ripe for review because there is simply no ambiguity

as to what TRPA’s regulations allow Mrs. Suitum to do with

her property: nothing.

Where the development rights are not clear from the

regulations as was the case in, for example, Penn Central, 438

U.S. 104, Agins, 447 U.S. 255, San Diego Gas, 450 U.S. 621,

Hamilton Bank, 473 U.S. 172 and MacDonald, 477 U.S. 340,

the Supreme Court ripeness decisions establish three different

alternatives which may ripen a land use claim. First, a claim

may mpen where a local government makes a final decision in

regard to a meaningful application for development approval.

Once a final decision is made regarding one meaningful

application, no more applications are required unless there is

some deficiency in an application which might be corrected

through, for example, a variance. There is not, and never has

been, any requirement that a property owner apply for every

conceivable use before a claim will ripen for review. Penn

Central, 438 U.S. 104, is illustrative of this principle.

In Penn Central, 438 U.S. 104, a meaningful

application was filed seeking approval of an office building

above a train station. The case was determined ripe and no

additional applications were required even though TDRs were

available to the plaintiff. Instead, the Court found that the

plaintiff had failed to demonstrate a taking and suggested that

TDRs might be considered “mitigation” of the burdens

imposed by the regulations in issue. Penn Central, 438 U.S. at

137 (“[t]he [TDRs] undoubtedly mitigate whatever financial

burdens the law has imposed on appellants and, for that reason,

ee he eee nae

mal

FNS SN

cones

23

are to be taken into account in consideration of the impact of

the regulation”). Here too, Mrs. Suitum’s case is ripe for

review and the trier of fact will need to determine whether the

existence of the TDRs provides an economically viable use or

effective payment of compensation; however, an application to

use the TDRs has no relevance in terms of whether there was

a final decision. Finally, even though Mrs. Suitum’s rights

were clear from the regulations themselves, she made an

additional, albeit legally unnecessary effort, in submitting plans

to construct a residence on her property. In connection with

Mrs. Suitum’s meaningful application, TRPA determined that

no development would be permitted on site because the

property was within the Stream Environment Zone (“SEZ”).

Mrs. Suitum even unsuccessfully appealed TRPA’s decision.

No more is necessary to state a ripe claim.

Where development rights are not clear from the

regulations, a claim may also ripen where the government

otherwise takes an authoritative position in regard to the

development rights. For example, in San Diego Gas, 450 U.S.

621, the Supreme Court found that it did not have jurisdiction

to review a California Supreme Court decision denying

monetary compensation because a remand to the trial court

made the decision non-final. However, had the Supreme Court

exercised its jurisdiction, it is plain that there was a final

decision -- an “otherwise authoritative position” -- regarding

the property in issue. Specifically, the City of San Diego

designated the entirety of the plaintiff's property as an “ open-

space area,” San Diego Gas, 450 U.S. at 626, and proposed as

part of its open-space plan to “acquire the property to preserve

it as parkland,” Jd, even going so far as unsuccessfully

attempting to issue bonds for the acquisition. Similarly, Mrs.

24

Suitum’s property has been designated in TRPA’s 1987 Plan as

ineligible for development and TRPA has officially declared

the property as within the SEZ, an area in which no

development is permitted. TRPA has otherwise taken an

authoritative position in regard to Mrs. Suitum’s development

rights; she has none.

Finally, where development rights are unclear from the

face of regulations, a claim may ripen where the preponderance

of the evidence demonstrates that it would be futile to apply for

development approval. The law abhors useless acts and admits

where it is plain that an application for development approval

will be futile, a constitutional challenge is ripe. Mrs. Suitum’s

application for TDRs is also futile and unnecessary; TRPA has

taken a definitive position and both the amount and value of the

TDRs are readily ascertainable.

What is needed is not a new rule of law, but a

comprehensive articulation of existing, albeit scattered, law

into one coherent standard. The following chart of Supreme

Court opinions illustrates this already existing law, divided up

into the following three categories: (1) rights clear from

regulations (claims always ripe); one meaningful application

(claims always ripe); or some other authoritative position

(claims always ripe):

26

II.

THE NINTH CIRCUIT ERRED IN REQUIRING

MRS. SUITUM TO UTILIZE HE

TRANSFERABLE DEVELOPMENT

RIGHTS AS A PREREQUISITE TO SUIT

The Ninth Circuit incorrectly formulated a new ripeness

test in requiring that Mrs. Suitum actually sell her TDRs in

order to state ripe constitutional claims as the existence of

TDRs, and the characterization of the TDRs by the Ninth

Circuit as a potential “use,” is irrelevant to the final decision

first prong of the Hamilton Bank, 473 U.S. 172, ripeness test.

There can be no real dispute that: (1) TRPA made a

final decision not to allow any on-site, economically viable use

of Mrs. Suitum’s property; and (2) Mrs. Suitum submitted a

meaningful application to use her property in the form of

building plans which led to TRPA’s determination that the

property was within the SEZ and could not developed. The

existence of TDRs, and Mrs. Suitum’s admitted failure to

utilize those TDRs, are wholly irrelevant to the final

determination analysis. In this sense, the Ninth Circuit’s focus

on TDRs as a “use,” is misplaced.

As has already been discussed, there is no requirement

that a putative plaintiff apply for each and every potential “use”

of his property to state a ripe claim. All that is necessary for a

claim to be ripe is a final decision by the regulatory authority.

As may be the case with Mrs. Suitum, if there are remaining

potential uses of the property -- and there has nonetheless been

a final decision -- then the plaintiff will bear the burden of

demonstrating, as the plaintiff would in any taking case, that

27

those uses do not provide an economically viable or beneficial

use. TDRs may be a “use,” or they may in some cases be so

valuable as to constitute payment of just compensation;

however, the classification of TDRs as a “use” is simply not

pertinent to a reasoned or rational ripeness analysis. —

The ripeness doctrine is not a rule of exhaustion,

financial or otherwise. Mrs. Suitum should not be required, as

a matter of sound law or fundamental fairness, to apply for

every conceivable use to state a ripe claim.

+

CONCLUSION

Amicus curiae, Charles Mayhew, Sr., Charles Mayhew,

Jr., the Estate of Audrey Mayhew, Sunnyvale Properties, Ltd.,

and Section 28 Partnership, Ltd., respectfully request that the

Supreme Court reverse the Ninth Circuit’s decision in Suitum

v. Tahoe Regional Planning Agency, 80 F.3d 359 (9th Cir.

1996), cert. granted, 117 S. Ct. 293 (1996) and remand for trial

on the merits.

Mrs. Suitum may be unable to prove that TRPA has

taken her property because of the TDRs, but their existence is

irrelevant to the issue of whether there has been a final decision

which is ripe for review. This case is patently ripe for review:

TRPA has definitively and unequivocally determined that no

development will be permitted on Mrs. Suitum’s property and

that decision is final and ripe for adjudication. Whether TDRs

are properly considered a “use” or just compensation is only

pertinent to the question of whether there has been a taking.

28 29

No property owner should be required to apply for every PROOF OF SERVICE

conceivable use of his property to state a ripe taking claim; all

that is required is a final decision. I, Charles L. Siemon, a member of the Supreme Court

Bar, hereby certify that three copies of the foregoing Amicus

Respectfully submitted, Curiae Brief of the Mayhews, et al. and Section 28 Partnership,

Ltd. Suggesting Reversal were served. Service was made on

the following individuals by first class mail on November 27,

*CHARLES L. SIEMON 1996:

*Counsel of Record

MARCELLA LARSEN Victor W. Wolski, Esq.

Siemon, Larsen & Marsh Counsel of Record for Petitioner

433 Plaza Real, Suite 339 Pacific Legal Foundation

Boca Raton, Florida 33432 2151 River Plaza Drive, Suite 305

(561) 368-3808 Sacramento, California 95833

Richard J. Lazarus, Esq.

Counsel of Record for Respondent

Georgetown University Law Center

600 New Jersey Avenue, NW

Washington, D.C. 20001

Charles L. Siemon, Esq.

Siemon, Larsen & Marsh

433 Plaza Real, Suite 339

Boca Raton, Florida 33432

(407) 368-3808