Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

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No. 96-243

In The ‘s

Supreme Court of the United States

October Term, 1996

BERNADINE SUITUM,

Petitioner,

TAHOE REGIONAL PLANNING AGENCY,

Respondent.

On Writ Of Certiorari To The

United States Court of Appeals

For The Ninth Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

RicHarp A. Epstein INSTITUTE FOR JUSTICE

1111 East 60th Street *Wituram H. MEeLtor

Chicago, IL 60637 Cunt Bouck

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* Counsel of Record

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ON COS COAT EE RE A, ts

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

ARGUMENT

THE DECISION OF TRPA WAS FINAL AND

RIPE FOR ADJUDICATION THE MOMENT IT

DENIED MS. SUITUM ANY RIGHT TO

DEVELOP HER OWN LAND

MS. SUITUM HAS NOT RECEIVED JUST COM-

PENSATION FOR THE TOTAL LOSS OF ANY

ECONOMICALLY VIABLE USE OF HER PROP-

The Just Compensation Clause Requires

Full And Perfect Compensation For The

Property Taken

The Apparent Willingness Of A Govern-

mental Entity To Purchase Ms. Suitum’s

Land At Below Market Value Does Not, As

A Matter Of Law, Provide Just Compensa-

tion

The Right To Sell The Encumbered Land To

Neighbors Is Not, As A Matter Of Law, Just

Compensation For The Property Taken....

The Transferrable Development Rights Do

pa As A Matter A A Law, —s oe

ompensation For Development Rights

Taken Under TRPA’s Coanpudhonsten 1987

TABLE OF CONTENTS - Continued

Page

Ill. ALLOWING TDRs TO SUBSTITUTE FOR CASH

OPENS THE DOOR TO A HOST OF OTHER

POLSESCAL ADUGEB. ..:cccctscsbenscabaeunnen 24

ae et os Pe 30

TABLE OF AUTHORITIES

Page

Cases

Agins v. Tiburon, 447 U.S. 255 (1980) ................ 11

Armstrong v. United States, 364 U.S. 40 (1960)... 19, 20, 21

Bauman v. Ross, 167 U.S. 548 (1897) ................. 26

Dolan v. City of Tigard, 512 U.S. 374 (1994)....... 28, 29

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) ................. 8

Fred F. French Investing Co. v. City of New York, 39

N.Y.2d 587, 350 N.E.2d 381 (1976) ..... 17, 18, 19, 20

Hodel v. Virginia Surface Mining & Reclamation

Assn., 452 U.S. 264 (1981). ..... 2.6.6 c ee eee. 10, 11

Kaiser Aetna v. United States, 444 U.S. 164 (1979)..... 18

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

CECE sdcusccccncccecesc: 4, 12, 15, 16

Marusic Liquors, Inc. v. Daley, 55 F.3d 258 (7th Cir.

UEREERRUERSREOESEs4 cccccceccccccccccesese 11, 12

Monongahela Navigation Co. v. United States, 148

PEGG hSSSesbcccecccccccccce 6, 14, 23, 24

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

EEE EEE ET POT TTUTTTTLITT TE 28, 29

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

EE cecesccccccccccceccce 9, 11, 22, 23

Pennell v. City of San Jose, 485 U.S. 1 (1985)......... 17

The Regional Railroad Reorganization Cases, 419 U.S.

PPPCENGDEERSSecececsoccocccccccccccccees 27

TABLE OF AUTHORITIES —- Continued

Page

Riggs v. Township of Long Beach, 109 N.J. 601, 538

Re GES GREED sccccccsteccodcsdcsoccsccocecen 14, 15

Suitum v. Tahoe Regional Planning Agency, 80 F.3d

SP Ges GEN GR co Fe cceccsucsscuctienséovwuseasé 3

Topanga Association for a Scenic Community v.

County of Los Angeles, 11 Cal.3d 517, 512 P.2d 12

GIOOUD cc evdccadodcccccnscsceéedaceceseneseosbates 28

United States v. Miller, 317 U.S. 369 (1943)............ 6

Williamson County Regional Planning Commission v.

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

CONSTITUTIONAL PROVISIONS

ae Cee GN, VF onc caccncccosccsdcacesess passim

MISCELLANEOUS

Ronald H. Coase, The Federal Communications Com-

mission, 2 J. Law & Econ. 1 (1959)................ 20

John Costonis, The Chicago Plan: Incentive Zoning

and the Preservation of Urban Landmarks, 85 Harv.

Ree FR GP GRIP wc ckccccccccctccscbdcuscccccce des 17

John Costonis, Development Rights Transfer: An

Exploratory Essay, 83 Yale L.J. 75 (1973) ........... 17

Grant Gilmore, The Age of Anxiety, 84 Yale L.J.

Ge Geet eecccecccncécccncteepbendedbabbasbecevese 4

TABLE OF AUTHORITIES - Continued

Page

Douglas T. Kendall & James Ryan, “Paying” For

The Change: Using Eminent Domain To Secure And

Sidestep Nollan and Dolan, 81 Va. L. Rev. 1801

SPP pererretir: Tritt ite ie 24, 28, 29

Note, The Unconstitutionality of Transferrable Devel-

opment Rights, 84 Yale L.J. 1101 (1975) ...........-. 9

Restatement (Second) of Torts............ 6.66 000005 12

INTEREST OF AMICUS CURIAE

The Institute for Justice is a nonprofit, public interest

legal center committed to defending essential founda-

tions of a free society and securing greater protection for

individual liberty. Central to the mission of the Institute

for Justice is to strengthen the ability of individuals to

control and transfer property and to demonstrate that

property rights are inextricably connected with other civil

rights.

Although the question in this case specifically

addresses the ripeness doctrine, the case also presents

larger issues involving private property rights and the

proper scope of administrative processes in a free society.

The Institute’s brief is co-authored with Professor Rich-

ard Epstein of the University of Chicago School of Law,

one of the nation’s leading authorities on property law.

The Institute for Justice has obtained the consent of

the parties to filing this brief and letters of consent have

been filed with the Clerk.

STATEMENT OF FACTS

Bernadine Suitum owns an ordinary residential lot of

18,300 square feet. She and her late husband bought the

property in 1972. The lot’s size would support construc-

tion of a single-family home indistinguishable from those

of her more fortunate neighbors who already have built

their homes. But her development rights have been

sharply regulated and curtailed by the Tahoe Regional

Planning Agency (TRPA). Pursuant to its comprehensive

planning ordinance, TRPA has deprived Ms. Suitum for

all time of the right to build on her land. In exchange, the

State of Nevada, under the Tahoe Basin Act, appears

ready to negotiate the purchase of the lands so encum-

bered for a sum estimated at $35,000. See Johnson Suppl.

Aff. { 12. Although the record is not clear on the point, a

buildable lot appears to be worth far more money.

Alternatively, TRPA allows Ms. Suitum to sell, sep-

arately or in combination, two remnants of her fee simple

ownership. First, she may sell her land, but subject to the

same development constraints - assuming she can find a

buyer. Second, she may sell a set of transferable develop-

ment rights (TDRs) to some other person within the plan-

ning region for a fraction of the value of her own lot as a

building site. It appears from the record that the com-

bined value of these two rights is less than that of her

land as a buildable lot.

TRPA denies that its elimination of Ms. Suitum’s

right to develop her own land constitutes a compensable

taking under the Fifth Amendment to the United States

Constitution. Indeed, it denies that the case is even ripe

for adjudication in federal court. That decision is incor-

rect on both the procedural and substantive aspects of the

case. The purpose of this amicus curiae brief is to expose

the constitutional infirmities of TRPA’s decision.

Some brief background helps place this case in per-

spective. In 1987, TRPA inaugurated a comprehensive

plan to regulate, and often prohibit, new construction

within its planning region. Each plot within the area was

assessed for its ostensible suitability for construction

under an elaborate set of criteria. Under this complex

scheme, TRPA has created Stream Environment Zones

(SEZs) which cover those lands that are located near the

stream that feeds Lake Tahoe. Land located in these zones

is not eligible for new private construction under any

circumstances. The decision is categorical and does not

depend on any individualized showing that the proposed

plan of construction would interfere with the drainage

within the region.

Under TRPA’s general plan, however, an owner, such

as Ms. Suitum, who is denied all right to build on her

own land receives in exchange either:

(1). an alleged willingness on the part of some govern-

ment entity to buy the land for less than its fair market

value as a buildable lot, or;

(2) a package of residential development rights, land

coverage rights; and residential allocations.

All of the elements of the package listed as the second

option are TDRs, the combined value of which appears to

be worth less than a buildable lot. These rights may be

transferred if the owner can find a buyer. That buyer,

however, does not receive any automatic right to build

either, as the completed transfer is subject to approval

which will only be granted if certain requirements on use

and density are met. TRPA does not organize this resale

market, but leaves it for holders of TDRs to fend for

themselves. Some sales are reported of these develop-

ment rights for sums that range between $1,500 to $6,000,

and building allocations for between $17,000 and $25,000.

See Johnson Suppl. Aff. { 13. There is no mention of how

long it takes to sell a TDR or of the expenses incurred in

the sale.

TRPA determined that Ms. Suitum’s land was located

within an SEZ, precluding all development. Therefore,

she was left with the unbuildable lot coupled with a

residential development right and land coverage right

equal to 183 square feet, or one percent of the surface area

of her own land. She has not tried to sell any of these

development rights, but instead brought an action in

federal court arguing that the net effect of the regulations

deprived her of all economically viable use of her land,

thus constituting a taking of property without just com-

pensation in violation of the Fifth Amendment to the

United States Constitution. In an unreported decision, the

United States District Court for the District of Nevada

granted TRPA summary judgment, ruling that the issue

was not ripe. This ruling was affirmed in Suitum v. Tahoe

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

SUMMARY OF ARGUMENT

This case raises the fundamental question of whether

planning authorities can engage in a series of maneuvers

that will render it impossible for landowners who have

suffered regulatory takings to ever recover full and per-

fect compensation for their loss guaranteed under the

Fifth Amendment to the United States Constitution. Lucas

v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

From the time of Shakespeare to the present, it has been

well understood that justice delayed is justice denied.

TRPA demonstrates the modern truth of Shakespeare's

maxim through its scheme of regulation that makes it

well-nigh impossible for any court to review TRPA’s con-

fiscatory regulations. Seizing on Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S.

172 (1985), TRPA consciously has placed obstacle after

obstacle in the path of ordinary landowners of limited

means who desire no more than to build a house similar

in kind and nature to that of their neighbors.

In many situations involving property regulation, the

due process clause is violated because too little process

has been given to an owner. But in this case the vice is

exactly the opposite: not too little process, but too much.

Grant Gilmore concluded his famous Storrs Lectures with

words that could have been written with this case in

mind: “Law reflects but in no sense determines the moral

worth of a society. A reasonably just society will reflect its

values in a reasonably just law. .. . An unjust society will

reflect its values in an unjust law. The worse the society,

the more law there will be. In Hell there will be nothing

but law, and due process will be meticulously observed.”

Grant Gilmore, The Age of Anxiety, 84 Yale L.J. 1022, 1044

(1975).

. Landowners like Ms. Suitum suffer from a process

whose elaborate uncertainty denies any means of vin-

dicating constitutional rights. The landowners’ plight

- — —EEEE —

stems directly from the finality rules erected by this

Court in Williamson. Local governments and regional

planning authorities know that so long as they have made

no final judgment their conduct will not be reviewed in

federal court. Not surprisingly, TRPA seeks to indefi-

nitely expand this period of delay. To do so, it has devel-

oped a complex system whereby it fractionates the

development rights associated with an ordinary parcel of

land into a number of separate components. Ms. Suitum

did not apply to transfer her residential development

right or available land coverage right under the program.

Those tasks require multiple forms and complicated

negotiations with other private parties before sale,

assuming they can be found. The costs of going through

these maneuvers could easily chew up much of the value

of her rights and might exceed their value in some cases.

TRPA throws the entire burden of this uncertainty on

Ms. Suitum and then seizes on this very uncertainty and

resulting delay to bar the door to the federal courthouse.

This Court should not extend the ripeness requirement of

Williamson to require additional private negotiations that

have nothing to do with the intrinsic use or value of the

land, and everything to do with concealing the paltry and

thoroughly inadequate compensation that a govern-

mental entity may offer for a formerly buildable lot.

TRPA has made its final offer, and, as a matter of law,

that offer does not satisfy the constitutional requirements

of just compensation. TRPA has already decreed that Ms.

Suitum will never make any actual use of her land. None-

theless, TRPA contends, and the Ninth Circuit agreed,

that she still can make two valuable “uses” of her land.

The first “use” is to sell the land to an adjacent owner

who could annex that land to his own parcel. The second

“use” is to apply for and sell TRPA’s package of transfer-

able development rights. These propositions confuse an

owner's right to use her own property with the owner’s

obligation to seli it in order to minimize the state's consti-

tutional duty to provide just compensation for the state-

imposed restrictions.

TRPA is not so brazen as to claim that no compensa-

tion will be offered. Instead it offers compensation in the

form of TDRs which are difficult to value under any

circumstances, and whose value falls far short of the “full

and perfect compensation in money for the property

taken” necessary to make the holder of property indif-

ferent between the land that was lost and the compensa-

tion received in exchange. See United States v. Miller, 317

U.S. 369, 373 (1943).

The simple and just solution to all these problems is

for TRPA to buy the land for fair market value and resell

it, or its associated development rights, as it pleases.

TRPA should not be allowed to hide its unconstitutional

tactics behind the ripeness doctrine. Once Ms. Suitum’s

right to build is denied, her claim to compensation is

perfected so that it becomes the duty of TRPA to pay in

cash, or in cash equivalents, the requisite constitutional

amount — namely, the fair market value of the plot of

whose use she has been deprived. Monongahela Navigation

Co. v. United States, 148 U.S. 312, 325-26 (1893). TRPA‘s

deliberate effort to inject massive uncertainty into the

compensation question should not become a royal road to

avoid compensation altogether.

ARGUMENT

I. THE DECISION OF TRPA WAS FINAL AND RIPE

FOR ADJUDICATION THE MOMENT IT DENIED

MS. SUITUM ANY RIGHT TO DEVELOP HER

OWN LAND.

This Court has created a ripeness requirement in

takings cases in order to make sure that cases not ready

for complete disposition are kept out of the federal

courts. The impulse behind the ripeness doctrine is one of

judicial economy. Where money will compensate an indi-

vidual for economic losses, there is little danger in defer-

ring judicial consideration of the matter until all

administrative rulings have been made. By waiting until

that moment, the controversy may well disappear, and if

it does not, all aspects of the case can be resolved in a

single proceeding, with enhanced judicial efficiency and

reliability.

Administrative efficiency is, however, only one ele-

ment of the proper judicial calculus. Preservation of con-

stitutional rights surely is another. Access to courts offers

vital protection in our system of constitutional govern-

ment with its explicit limitations on the power the state

may exert over its citizens. The ripeness requirement in

Williamson relieves the state of the obligation to pay com-

pensation in a particular case until the transaction itself

has been closed in order to reduce the stress on the court

system, as discussed infra at 9-11. But postponing access

to the courts until the entire matter can be resolved in a

comprehensive fashion increases the risk that redress will

be denied for serious and prolonged constitutional viola-

tions. The longer the period of delay, the greater this risk

of potential abuse. Ironically, the ripeness doctrine can

create a perverse incentive for overzealous governments

to create endless procedural hurdles calculated to deny

landowners the use or value of their property.

The district court below introduced a whole new set

of imponderables into its ripeness calculation. Just how

much effort in the private market must people make

before they can bring their claims to court? Must adver-

tisements be placed in local newspapers and brokers

hired? Does it matter that the landowner must bear these

costs if the effort to sell fails? The balance between judi-

cial efficiency and legal protection must at some point

shift in favor of opening the courthouse door. That point

has been reached, and passed, here. State planning

boards must not be allowed to take advantage of Wil-

liamson to place further roadblocks before the courthouse

door. Finality must become a legal reality, not an adminis-

trative mirage, manipulated by the very parties that

profit by their insulation from judicial review.

TRPA also undermines the decision of this Court in

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987), which held that temporary

takings by regulation should be treated like temporary

takings by direct occupation. Of what value is that rem-

edy if a governmental body can string out its delibera-

tions over the fate of a particular landowner during

periods of “normal delay” for administrative matters. See

First English, 482 U.S. at 321. That period of delay should

not be lengthened to cover administrative and business

matters unrelated to the use of the land at issue.

As a matter of basic due process, all individuals have

a right to have their dealings with government agencies

subject to timely and effective review in a court. In deal-

ing with this issue, this Court should not forget that

administrative agencies do not have internal gyroscopes

that automatically insure that their every action serves

the public interest. These agencies have institutional

incentives and agendas of their own. Planning commis-

sions are not neutral and disinterested arbitrators of dis-

putes. The agencies often are responsible for the

enforcement of the very policies they promulgate. Separa-

tion of powers is thus compromised in administrative

settings, and some bias in the execution of their mandate

is likely to occur given the dual rules that are occupied.

Those agencies having a strong interest in the outcome of

a dispute have an incentive to adopt measures that will

allow them to advance that interest, even by trampling

the rights of ordinary individuals in the process.

Williamson does not invite this dangerous extension

of the ripeness requirement. Under its rule, a claim is not

ripe until “the government entity charged with imple-

menting the regulations has reached a final decision

regarding the application of the regulations to the prop-

erty at issue.” Williamson, 473 U.S. at 186. For the pur-

poses of this case, the key words of this holding are

“property at issue.” The natural meaning of those words

is the property subject to the regulation at hand, which in

this case is Ms. Suitum’s lot for which all permission to

build has been denied in perpetuity. Surely, the property

at issue cannot be any other piece of land to which the

TDRs, if sold, might eventually attach. The TDRs are not

a “use” of Ms. Suitum’s property, but are, and are under-

stood by everyone, to be offered in compensation for the

property that is lost. See, e.g., Note, The Unconstitutionality

of Transferable Development Rights, 84 Yale L.J. 1101, 1107

(1975) (“once a TDR is found to be a taking, the question

then becomes whether the freely transferable develop-

ment rights awarded to the landmark owner by the city

constitute just compensation”). Likewise TDRs were

treated as a form of compensation, not a different version

of the property itself, in both the majority and dissenting

opinions in Penn Central Transportation Co. v. City of New

York, 438 U.S. 104, 137 (1978) (Brennan, J.); Id. at 151

(Rehnquist, J., dissenting).

. Any other conclusion would defy common sense.

Surely, Ms. Suitum does not receive some use of her land

if TRPA gives her an option to buy Kansas real estate,

1000 shares of GM stock, a state lottery ticket, or a free

AMTRAK pass. Use of her own land has been perma-

nently taken from her and TDRs are offered in compensa-

tion. The land to which those TDRs might pertain has not

even been identified, and the sale of the TDRs would

hardly give Ms. Suitum any interest in the land to which

they are eventually attached. The only land at issue in

this case is her plot of land, and there TRPA has issued its

final and decisive order: no development, ever.

Moreover, this common-sense interpretation of Wil-

liamson is borne out by an examination of the fact pat-

terns to which the rule applies. In Williamson itself, the

original developer, Temple Hills Country Club Estates,

did not have a ripe claim because once its proposals were

rejected it “did not then seek variances that would have

allowed it to develop the property according to its pro-

posed plat, notwithstanding the Commission’s finding

that the plat did not comply with the zoning ordinance

and the subdivision regulations.” Williamson, 473 U.S. at

188. Yet an application for a variance relates to the pro-

posed plans for the development of the particular prop-

erty. Nothing whatsoever in Williamson hints that some

possible transaction with respect to an unidentified and

unrelated parcel of land should delay access to federal

court. Nor does Williamson suggest that a land owner is

under some duty to place land for sale before attacking

the system at hand. Only unresolved issues over future

use of the discrete parcel prevented the owner’s claim

from being ripe.

This conclusion is fortified by the line of earlier

Supreme Court cases on which Williamson relied. In Hodel

v. Virginia Surface Mining & Reclamation Assn., 452 U.S.

264, 268 (1981), the landowners mounted a facial attack

on the constitutionality of the Surface Mining Control

and Reclamation Act of 1977, which required that strip-

mined land be returned to its original contour once the

work was done. That claim was rejected on the ground

that the landowners “have not availed themselves of the

opportunities provided by the Act to obtain administra-

tive relief by requesting either a variance from the

approximate-original-contour requirements of § 515(d) or

waiver from the surface mining restrictions in § 522(c).”

Hodel, 452 U.S. at 297, quoted in Williamson, 457 U.S. at

187. Once again the required process affected the prop-

erty at issue; the failure to resell the land had nothing to

do with the ripeness issue.

Williamson also relied on Agins v. Tiburon, 447 U.S.

255 (1980), where the challenge to a zoning ordinance

“was not ripe because the property owners had not yet

submitted a plan for development of their property.”

Williamson, 475 U.S. at 187. Williamson then brought home

the essential point by referring to Penn Central Transporta-

tion Corp. v. City of New York, 438 U.S. 104 (1978), where

the New York City Landmark Preservation Board had

already disapproved a proposed 50 story office tower

over Penn Station. That appeal was not regarded as ripe

because “the property owners had not sought approval

for any other plan, and it therefore was not clear whether

the Commission would deny approval for all uses that

would enable the plaintiffs to derive economic benefit

from the property.” Williamson, 475 U.S. at 187. Even

though Penn Central involved the use of TDRs, their

potential sale and the potential sale of the terminal were

not treated as preconditions for access to federal court.

A sensible approach to the ripeness question was

taken in Marusic Liquors, Inc. v. Daley, 55 F.3d 258 (7th Cir.

1995). There, the City of Chicago passed an ordinance

that restricted the rights of present owners to transfer

their existing liquor licenses. An affected liquor store

owner brought suit under 42 U.S.C. § 1983, claiming that

the ordinance’s restrictions on resale contravened both

the equal protection and due process clauses. Chicago

claimed that the action was not yet ripe because Marusic

had no immediate plans to sell his business. Judge East-

erbrook rebuffed that contention under Williamson: “A

claim is unripe when critical elements are contingent or

unknown. When, for example, a property owner alleges

that general regulation affects his land in some special

way, the claim is not ripe until all efforts to avoid the

restriction or obtain compensation for it cre exhausted.” Mar-

usic, 55 F.3d at 260 (emphasis addec!)

In Marusic, 55 F.3d at 261, the plaintiff was allowed to

press forward his claim immediately “because the ordi-

nance itself embodied a conclusive decision about trans-

ferability.” Likewise, in the instant case, TRPA made its

conclusive determination about use and has refused to

pay full compensation. In Marusic, Judge Easterbrook did

not require that Marusic seek out potential buyers for the

land, or to show exactly how much the value had

decreased. The fixed and final position of the City of

Chicago was all that it took to make the case ripe. For

these purposes, it is immaterial that the Seventh Circuit

sustained the ordinance on its merits.

There is no question that if TRPA had baldly pre-

vented any construction on Ms. Suitum’s land, it would

have been required to compensate her in full and in cash

for the use rights that were so lost. See Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015-18 (1992).

There is no showing that her proposed use of land

amounts to a common law nuisance or to anything close

to one. As Lucas’ home construction was not a nuisance

merely because he owned beachfront property, so too Ms.

Suitum’s proposed construction of an ordinary home is

not a nuisance merely because the land is located in a

stream enforcement zone. See Restatement (Second) of Torts

§§ 826-831, cited in Lucas, 505 U.S. at 1030-31. It therefore

makes no sense for the District and Circuit Courts to

deflect her valid claim for compensation by postponing

litigation until she disposes of a complex set of TDRs. The

critical question of the valuation of her property rights

taken from her can be litigated today.

Il. MS. SUITUM HAS NOT RECEIVED JUST COM-

PENSATION FOR THE TOTAL LOSS OF ANY

ECONOMICALLY VIABLE USE OF HER PROP-

ERTY.

A. The Just Compensation Clause Requires Full

And Perfect Compensation For The Property

Taken.

Once Ms. Suitum’s claim is ripe, a court must deter-

mine whether or not her property has been taken within

the meaning of the Fifth Amendment, and, if so, whether

just compensation has been offered in exchange. The first

issue is clear from the record, given the total deprivation

of any economically viable use of her property. The point

of contention is whether she has been justly compen-

sated. The applicable standard for just compensation

admits of no doubt:

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

punitive or exemplary damages, the former

being the equivalent for the injury done, and the

latter imposed by way of punishment. So that if

the adjective “just” had been omitted, and the

provision was simply that property should not

be taken without compensation, the natural

import of the language would be that the com-

pensation should be the equivalent of the prop-

erty. 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 compen-

’ sation must be a full and perfect equivalent for

By this legislation, Congress seems to have

assumed the right to determine what shall be

the measure of compensation. But this is a judi-

cial and not a legislative question. The legisla-

ture may determine what private property 1s

needed for public purposes — that is a question

of a political and legislative character; but when

the taking has been ordered, then the question

of compensation is judicial. It does not rest with

the public, taking the property, through Con-

gress or the legislature, its representative, to say

what compensation shall be paid, or even what

shall be the rule of compensation. The Constitu-

tion has declared that just compensation shall be

paid, and the ascertainment of that is a judicial

inquiry.

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

326-27 (1893).

B. The Apparent Willingness Of A Governmental

Entity To Purchase Ms. Suitum’s Land At Below

Market Value Does Not, As A Matter of Law,

Provide Just Compensation.

TRPA’s first effort to finesse the just compensation

requirement is to point to the possibility that the State of

Nevada may give Ms. Suitum a reduced price in cash for

her land. But this part payment, even if it is ever realized,

will not suffice. It is well recognized that a state cannot

downzone property with an eye to its purchase at a

reduced price. A court will cut through any apparent

police power justification when local governments

engage in such nefarious practices. For example, that

result was achieved in Riggs v. Township of Long Beach, 109

pr Arescedagen be csarheend eyo. Breandhor »-Aqeser ha semadary

ordinance sta that “the purpose zoning amend-

sve Gus tach 6s Wealid Gin Galas shea, Wk tp ance Gn

municipality to pay the property owner less than fair

market value under the preexisting zoning ordinance.”

Riggs, 109 N.J. at 615, 538 A.2d at 815.

That result represents the proper response to the

abuse of the police power present in this case. It is quite

intolerable that a local government should be able to take

land worth $100,000, zone it to a fourth of its original

value, and then condemn it for $25,000. The very fact that

governmental bodies in this case have allegedly sought to

take land from owners for a below market price shows

how these possibilities flout the just compensation

requirement, not satisfy it. TRPA or some other govern-

mental entity might as well claim it could avoid its duty

to compensate for the loss of all economically viable use

under Lucas by offering to pay $1.00 for the land. In the

absence of the planning restrictions, Ms. Suitum surely

would reject any such purported offer. The $35,000 figure

should not be regarded as evidence that Ms. Suitum’s

land has residual value. It should be regarded as a telling

admission that the government is always willing to con-

demn land for less than its full value, in violation of its

constitutional obligations.

C. The Right To Sell The Encumbered Land To

Neichbors Is Not, As A Matter of Law, Just

Compensation For The Property Taken.

TRPA’s next line of defense against paying compen-

sation is that Suitum still has the right to sell the property

that she cannot use. This means of compensation is far

below the full and perfect compensation required from

the government. Any sale requires a buyer. However, the

class of potential buyers is limited to the class of adjacent

neighbors who might wish to add someone else’s plot

onto their own. The exact price that would be paid cannot

be determined short of actual negotiation, but it can be

said with complete confidence that the net return to Ms.

Suitum would be far less than the value of her land as a

building plot. The use that the buyer could make of the

land is limited, because he could never build on the land

either. The gain from the purchase is limited as well. The

neighbor has no need to purchase the lot to prevent

construction, as that already has been accomplished by

regulation. Therefore, the most that can be gained is

private access and perhaps some additional measure of

privacy. These conditions are so restrictive as to block

many sales, and to allow some for small amounts after

difficult negotiations. That paltry residue is far below the

full and perfect compensation required under the Consti-

tution. Moreover, that possibility exists in every case in

which the use of land is restricted. Yet it played no role

whatsoever in Lucas, where the state was required to

compensate in full when it denied Lucas his right to build

under circumstances indistinguishable from those here.

D. The Transferable Development Rights Do Not,

As A Matter of Law, Constitute Just Compensa-

tion For The Development Rights Taken Under

TRPA’s Comprehensive 1987 Plan.

Properly deployed, TDRs can serve as a useful tool

for land use planning. TDRs are proper constitutional

devices when the state first condemns for cash the devel-

opment rights from individual landowners. Thereafter it

may hold these in reserve or resell them to private

owners for use. Because full and just compensation has

been paid at the outset, the state has every incentive to

make sound decisions on whether to use, resell, or retire

the rights. The system of direct condemnation avoids any

excessive imposition on individual landowners. The state

deployment can then achieve any community objective

reached through democratic means. In this case, the

strong preservation of property rights aids the delibera-

tive process by forcing its representatives to consider the

impact of its planning proposals on all individuals within

the community, including those who own property there

but who may not be eligible to vote. See Pennell v. City of

San Jose, 485 U.S. 1, 22 (1985) (Scalia, J., dissenting). This

system is easy to administer and was proposed for use in

Chicago. John Costonis, The Chicago Plan: Incentive Zoning

and the Preservation of Urban Landmarks, 85 Harv. L. Rev.

574 (1972); John Costonis, Development Rights Transfer: An

Exploratory Essay, 83 Yale L.J. 75, 86-87 (1973).

However, TDRs become an affront to the constitu-

tional protection of property rights when they are given

to individual landowners in part payment for the ordi-

nary development rights of which they have been

deprived. Now, instead of introducing transparency in

social decision-making, they seek to use “off-budget”

devices to force some individuals to bear a disproportio-

nate burden of actions taken in the name of the public

good. Let the state pay in money and it is an easy matter

to determine whether proper compensation has been

paid. Let it pay with TDRs and the state will take refuge

in the uncertainties of valuation that it has deliberately

injected into the overall situation.

The basic point was made by Justice Breitel in his

well-reasoned decision in Fred F. French Investing Co. v.

City of New York, 39 N.Y.2d 587, 350 N.E.2d 381 (1976),

whose facts bear a close relationship to the instant case.

There the plaintiff owned a large mid-Manhattan residen-

tial complex that contained two private parks zoned for

residential and office development. An amendment to the

New York City zoning law reclassified the land as a

Special Park District, such that title remained in the pri-

vate landowners even though the land was held open to

the. public. Then, New York City stipulated that original

development rights for the two parcels were transferable

to other locations in mid-Manhattan. The opening of the

lands to unlimited public use was treated as a taking. Cf.

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

Breitel, writing for a unanimous court of appeals, refused

to allow the City to credit the TDRs against its compensa-

tion obligation:

[The City’s action] thus created floating

development rights, utterly unusable until they

could be attached to some accommodating real

property, available by happenstance of prior

ownership, or by grant, purchase or devise, and

subject to the contingent approvals of adminis-

trative agencies. In such case, the development

rights, disembodied abstractions of man’s inge-

nuity, float in a limbo until restored to realit’ by

reattachment to tangible real property. Put

another way, it is a tolerable abstraction to con-

sider development rights apart from the solid

land from which as a matter of zoning law they

derive. But severed, the development rights are

a double abstraction until they are actually

attached to a receiving parcel, yet to be identi-

fied, acquired, and subject to the contingent

future approvals of administrative agencies,

events which may never happen because of the

exigencies of the market and the contingencies

and exigencies of administrative action.

Fred F. French, 39 N.Y.2d at 597-98, 350 N.E.2d at 387-88.

This Court does not have to hold such a negative

view on TDRs as to refuse to credit them toward the

compensation owing. It is quite sufficient to say that any

value that inheres in them is rendered highly uncertain

by the nature of the right. New York City was responsible

for the creation of that indefiniteness in Fred F. French.

TRPA is responsible for that indefiniteness here. The

party that creates the risk should be required to bear its

associated costs. By valuing these rights at zero, the

Court sends a clear message to municipalities that TDRs

cannot be used to muddy the waters when a clear func-

tion of the courts is to secure full and perfect compensa-

tion for the property taken.

Following Fred F. French will not unduly limit the

ability of local governments to make responsible deci-

sions on land use. In Fred F. French, Chief Judge Breitel

articulated the position urged here, noting with approval

the sensible use of TDRs found in the so-called Chicago

plan, which met the conditions of a sound TDR plan set

out above because it required local governments to con-

demn development rights “instantly and in money.” Fred

F. French, 39 N.Y.2d at 598, 350 N.E.2d at 388.

The incentives of the Chicago system are completely

different from those under New York City’s scheme and

TRPA’s plan. First, local governments no longer have any

incentive to cast the net for these development rights too

widely. The cash payments for them must be made out of

public budgets so that local officials will now be disci-

plined in their acquisition plans, just as they are when

raw land or completed structures are acquired through

standard condemnation practices. Second, local govern-

ments have an incentive to repackage these development

rights in usable form in order to maximize the amount of

cash received from their sale. It is most unlikely that it

will break them up into development rights, land cover-

age rights, and building allocations, as are done under

the TRPA plan. Third, the use of this system avoids the

massive disparate impact that existed under the schemes

in Fred F. French and the instant case because no land-

owner is wiped out by the process. All receive their fair

share of benefits and burdens, so as to avoid the dispa-

rate impact of regulations that always raises suspicion

under the Takings Clause. See Armstrong v. United States,

364 U.S. 40, 49 (1960) (the Fifth Amendment guarantee

was designed to “bar Government from forcing some

people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole”)

To see why the dictates of Armstrong are satisfied,

assume that 100 lots in the TRPA region are presently

undeveloped, and the planning authority is willing to

allow only 20 to be developed. Buying and banking

development rights allow the state to hold development

off the market and to find the highest bidder for the

rights that can be immediately utilized. The government

that imposes the restriction therefore bears the financial

losses from the lots that it chooses to keep out of circula-

tion. But it may correct any mistakes that it makes by

auctioning off an additional set of development rights,

just the way the FCC can auction off additional portions

of the spectrum. See, generally, Ronald H. Coase, The

Federal Communications Commission, 2 J. Law & Econ. 1

(1959).

In contrast, when TDRs are given to individual land-

owners as ostensible compensation for the property

taken, local governments operate under a perverse set of

incentives. It is far too easy to create the appearance that

something of substance has been given, while fragment-

ing and conditioning the rights in ways so that their

value approaches zero. For example, in Fred F. French,

New York City’s development rights could only be trans-

ferred within a certain portion of Manhattan; the receiv-

ing lots were “those with a minimum lot size of 30,000

square feet and zoned to permit development at the maxi-

mum commercial density.” Fred F. French, 39 N.Y.2d at

592, 350 N.E.2d at 384. The rights could be transferred to

the receiving lot, thereby increasing its maximum floor

area up to 10%. Further increase in the receiving lot's

floor area, limited to 20% percent of maximum commer-

cial density, was contingent upon a public hearing and

approval by the City Planning Commission and the Board

of Estimate. Why assume that any market will emerge for

these abstract disembodied development rights? And

why value them at more than a tiny fraction of the

common law development rights that pre-existed the zon-

ing change of the original private parks? In this case, the

TDRs are fragmented into three separate components

which, even when reassembled, can only be used subject

to planning approval. And if this scheme is approved,

there is every reason to suppose that the next generation

of TDRs will be more restrictive and less valuable than

those that have preceded it.

Should this plan be approved, land use plans that

violate Armstrong’s warning against disproportionate

impacts will be routinely adopted. Before the onset of

TRPA’s 1987 plan, one could assume (for illustration only

since the record gives no precise numbers) that half the

lots under TRPA’s jurisdiction had single family homes,

and the rest had none. The public determination was

made to limit construction on the remaining lots for the

benefit of all owners. If the Chicago TDR bank proposal

had been followed, the burdens of this public scheme

would have been borne equally by established and poten-

tial homeowners. But once TRPA’s elaborate system of

TDRs is put into place, the incidence of the public bur-

dens shifts. Existing homeowners bear none of the cost of

the plan, and indeed benefit from the increased value of

their existing holdings. All owners of undeveloped plots

lose, some more than others. The possibility of the resale

of the vacant land to neighbors, TRPA, or some other

governmental entity, and the possibility of some indepen-

dent sale of TDRs shift none of the burden of the conser-

vation scheme to the established homeowners. It only

spreads it around in some uncertain fashion among the

owners of undeveloped lots. Before the scheme was

imposed, all of these lot owners had development rights.

After the scheme was imposed most have neither the

development rights nor their cash equivalent. The bottom

line is that, over the life of this program, people who

started with development rights will be stripped of them

without compensation.

Nor is the use of TDRs as valid compensation devices

implicitly authorized by Penn Central Transportation Corp.

v. City of New York, 438 U.S. 104 (1978). That decision

upheld the application without compensation of a land-

mark designation statute that prevented the construction

of a 50 story office tower above Penn Station. In explain-

ing that decision, Justice Brennan had these observations

about TDRs:

Although appellants and others have argued

that New York City’s transferable development-

rights program is far from ideal, the New York

courts here supportably found that, at least in

the case of the Terminal, the rights afforded are

valuable. While these rights may well not have

constituted “just compensation” if a “taking”

had occurred, the rights nevertheless undoubt-

edly mitigate whatever financial burden the law

has imposed on the appellants, and, for that

reason, are to be taken into account in consider-

ing the impact of the regulation.

Penn Central, 438 U.S. at 137.

This precarious compromise over TDRs does not sur-

vive scrutiny. If the TDR only mitigates the loss in ques-

tion, then it leaves unsatisfied some portion of the

underlying constitutional obligation to make full and per-

fect compensation. Yet there is no reason for TDRs to

remain in constitutional limbo. The remainder of Justice

Brennan's opinion explains how the landmark preserva-

tion statute at issue in Penn Central should pass constitu-

tional muster even if no TDRs are provided. In sharp

contrast to the situation here

the New York City law does not interfere in any

way with the present uses of the Terminal. Its

designation as a landmark not only permits but

_ contemplates that appellants may continue to

use the property precisely as it has been used

for the past 65 years: as a railroad terminal

containing office space and concessions. So the

law does not interfere with what must be

regarded as Penn Central's primary expectation

concerning the use of the parcel. More impor-

tantly, on this record, we must regard the New

York City law as permitting Penn Central not

only to profit from the Terminal but also to

obtain a “reasonable return” on its investment.

Penn Central, 438 U.S. at 136.

Then to drive home the point, the Court emphasized

that its holding was “based on Penn Central’s present

ability to use the Terminal for its intended purposes and

in a gainful fashion.” Id. at 136 n.36. These strictures are a

far cry from the instant case where the landowner is

denied her primary expectation of building on a building

lot, and is restricted to the most incidental uses of prop-

erty - e.g., gardening, picnicking, etc. - that offer no

prospect of “a reasonable return” on investment. In Penn

Central, the TDRs were the icing on the cake that pre-

served established uses. They did not and could not

constitute the just compensation required when all bene-

ficial use of the land was denied. As then-Justice Rehnqu-

ist stressed in his Penn Central dissent:

Of all the terms used in the Taking Clause, “just

compensation” has the strictest meaning. The

Fifth Amendment does not allow simply an

approximate compensation but requires “a full

and perfect equivalent for the property

taken.” .. . And the determination of whether a

“full and perfect equivalent” has been awarded

is a “judicial function.” The fact that appellees

may believe that TDR’s [sic] provide full com-

pensation is irrelevant.

Penn Central, 438 U.S. at 150-51 (quoting Monongahela, 148

U.S. at 326).

Clear limits have to be placed on the use of TDRs as

in-kind compensation for regulatory takings. A strong

presumption should be erected against substituting them

for cash outside the context of the Chicago plan, given

the difficulties of evaluation and finality they pose. In

principle, a government may well be prepared to devise a

set of TDRs that has a readily realizable and ascertainable

market value that makes them close equivalents to cash.

If these conditions are satisfied, they could count as just

compensation.

Yet we believe that it is unlikely that these conditions

will be satisfied. Creating a system of TDRs costs the

public money, which makes their use more cumbersome

than cash. Why would a state or local government prefer

to bear the costs of creating these requirements if they

could not thereby find some way to circumvent the strict

constitutional standards on compensation? We therefore

predict that few if any schemes will be implemented that

meet the strict constitutional requirements set out in

Monongahela and in this brief. For the moment, however,

it is not necessary to erect a per se rule on the question. It

is sufficient in this case to refuse categorically to credit

the TDRs offered by TRPA in lieu of its constitutional

obligation to compensate Ms. Suitum.

Ill. ALLOWING TDRs TO SUBSTITUTE FOR CASH

OPENS THE DOOR TO A HOST OF OTHER

POLITICAL ABUSES.

This case has great precedential importance for

unless this Court takes a firm stand, state and local

governments will inaugurate a whole host of other pro-

grams to circumvent their obligation to pay compensation

for either physical or regulatory takings. Consider, for

example, the question of whether the government may

discharge its compensation obligations by substituting

financial instruments for cash. No decision of this Court

has decisively settled this issue. For a collection of the

relevant authorities, see Douglas T. Kendall & James

Ryan, “Paying” For the Change: Using Eminent Domain To

Secure Exactions And Sidestep Nollan and Dolan, 81 Va. L.

Rev. 1801, 1837-41 (1995). But the issue does admit of a

principled answer once the amount owing from the state

has been settled. Money should be the only allowable

form of explicit compensation. The state should cure a

cash shortage by borrowing in capital markets, not by

imposing additional obligations on those people it has

already singled out as targets for its coercive action.

To see why, assume that the state owes $100,000 for

the outright taking of an ordinary piece of land. No

slippage in the discharge of that obligation is possible if

the state is forced to make good on that obligation in

cash. But let the state pay in kind, and the landowner will

receive a note whose face value is $100,000, but whose

market value is likely to be far less. (No state would ever

voluntarily pay with a note worth more than $100,000.)

After all, it is commonplace that the market value of

financial instruments, when issued, can diverge dramati-

cally from the face amount of the instruments. The spe-

cially-tailored note might carry a below-market rate of

interest, be backed by inadequate security, or be hedged

in by terms and conditions. The note might be nonassign-

able by the landowner, who must wait a period of years

to receive its cash value; yet, the state could have the

option to call the note at any time. Why force a land-

owner to fight two battles and a trial court to make two

separate valuations ~ one for the land and the other for

the note - when the capital markets can better value any

note the state might care to issue?

The state’s taking power may be essential to over-

come the individual power to hold out against needed

government projects. But money is fungible, so there is

no remotely comparable social objective to allow the state

to discharge its compensation obligations with notes of

questionable value. No private judgment debtor could

freely substitute a personal note for cash. Nor could any

buyer of real estate. Why invite abuse by adopting a

different rule for state compensation when neutral parties

operating in competitive capital markets can cheaply and

reliably evaluate financial instruments? A simple rule of

constitutional prudence should dictate that explicit com-

pensation always be paid in money, both for physical

occupations and regulatory takings.

The above proposition only applies, it must be

stressed, when explicit compensation must be paid. It

hardly follows therefore that TDRs should be allowed as

compensation just because in-kind compensation is

allowed in other cases. By drawing the correct distinc-

tions, this Court can, and should, leave undisturbed the

evaluation rules applicable when in-kind compensation

for any given property holder is derived from the same

government scheme that takes private property. In Bau-

man v. Ross, 167 U.S. 548 (1897), this Court held the state

could offset from any compensation owed the benefits

that accrue to the landowner as a direct consequence of

the project in question. Thus, suppose that a landowner

has 100 fungible acres worth $100,000, of which 20 are

taken for a highway. The compensation owing is pre-

sumptively $20,000. But if the remaining holdings of the

landowner increase in value to $85,000 because of supe-

rior highway access, the amount of cash compensation

owing is only $15,000. This principle is perfectly neutral,

for should the severance of part of the land reduce the

value of the residue to $75,000, then the compensation

owing is increased to $25,000. Both cases respond to the

same ideal: the landowner’s total wealth position should

remain at $100,000 when the transaction runs its course.

Note the difference between these in-kind benefits

and TDRs. TDRs are artifacts of some accounting conven-

tions; these offsets by contrast reflect real changes in

underlying values of the retained property. The unified

parcel had a market value before the taking took place,

and the portion retained by the original owner retains

some market value once that taking is completed. Unlike

the dangers with financial instruments that do not have

fixed value, the variations in value in the land cases can

run in either direction depending on the relationship

between the portion of the land taken and that retained.

Since the valuation can move in both directions, the land-

owner is no longer exposed to systematic risk that the

state will use papers of inflated or uncertain value to

escape its financial obligations.

These cases of implicit benefits and burdens help

place in context some broad statements that the state

need not always provide compensation in cash. See, ¢.g.,

The Regional Railroad Reorganization Cases, 419 U.S. 102,

150 (1974) (“no decision of this Court holds that compen-

sation other than money is an inadequate form of com-

pensation under eminent domain statutes”). That general

statement works best in the cases just mentioned where

material benefits flow directly from the government occu-

pation of land, or, in the present situation, from the use

restrictions imposed on land. As applied to this case, Ms.

Suitum could not challenge any reduction in dollar com-

pensation if the very development ban she protests

increased the value of her land by imposing like-restric-

tions on the property of her neighbors. In the overall

scheme of things, this qualification of the basic rule is no

small matter, for the fundamental justification of sound

zoning schemes rests on the proposition that the value

lost from the restriction on one’s own land is offset by the

benefits imposed on the land of a neighbor:

A zoning scheme, after all, is similar in some

respects to a contract; each party forgoes rights

to use its land as it wishes in return for the

assurance that the use of a neighboring property

- will be similarly restricted, the rationale being

that such mutual restriction can enhance total

community welfare.

Topanga Association for a Scenic Community v. County of Los

Angeles, 11 Cal.3d 506, 517, 522 P.2d 12, 19 (1974).

Yet, by the same token, these reciprocal benefits can-

not simply be presumed because some general ordinance

has been put in place. In the instant case, Ms. Suitum is

not allowed to develop her land; and no evidence in the

record hints that she owns any nearby parcels of devel-

oped land that benefit from the restriction. Any offsets

inhere to the neighbors who benefit from the open space

and the opportunity to buy that land at a small fraction of

its pre-restriction value. The basic incentive structure that

influences local deliberation must change before any in-

kind offsets come into play in this case. This case is not

one in which the challenged ordinance restricts all land-

owners to one singie-family home per standard lot, and

allows them freedom as to when it may be built. Rather, it

is a textbook example of how the early comers pull up the

bridge and deny to other owners (who often are not local

voters) the power to do what they have done. Any

nuanced interpretation of the takings clause should be

alert to these differences.

To see the potential for constitutional evasion, one

should consider the proposal defended at enormous

length by Kendall and Ryan in “Paying” for the Change:

Using Eminent Domain To Secure Exactions and Sidestep

Nollan and Dolan, 81 Va. L. Rev. 1801 (1995). True to the

title of their article, they propose to “sidestep” constitu-

tional obligations by dismantling the constitutional pro-

tections against illicit exaction that this Court erected in

Nollan v. California Coastal Commission, 483 U.S. 825 (1987)

and Dolan v. City of Tigard, 512 U.S. 374 (1994). Their

proposal quite simply is that local governments resort to

eminent domain to avoid paying cash for land: “where

the value of a development permit exceeds the value of

the land exaction sought by the town, the town should

take the land through eminent domain and give the land-

owner the choice between cash compensation and com-

pensation in the form of a development permit.” Kendall

& Ryan, 81 Va. L. Rev. at 1803. The individual property

owner will of course be better off by accepting the permit,

so that the land can in effect be acquired for free, which is

why the term “paying” is placed in quotes in the title of

their article.

While academic discourse permits such inventive

shell games, the Constitution does not. Here, adherence

to constitutional requirements will not take place if a

government can use the funny money of TDRs or other

land use restrictions to discharge its constitutional obliga-

tion of just compensation. The entire purpose of both

Nollan and Dolan is to insure that the state does not use

its power of regulation to acquire the possession or use of

land for free. That can be done only if the state is not

allowed to create new rights out of whole cloth for the

acquisition of land. Requiring that the compensation for

the land taken be provided solely and exclusively in

money puts an end to this sham, just as it puts an end to

the abuses inherent in using TDRs as direct compensa-

tion. Upholding the use of TRPA’s TDR scheme invites an

unwarranted deterioration of the constitutional safe-

guards erected in Nollan and Dolan.

CONCLUSION

For the foregoing reasons, the decision of the Ninth

Circuit should be reversed, and the case should be

remanded to the District Court with instructions that

TRPA pay full and just compensation for the property

taken.

Respectfully submitted,

RicHarp A. Epstein INSTITUTE FOR JUSTICE

1111 East 60th Street *Wituam H. MELLoR

Chicago, IL 60637 Cunt Bouck

(773) 702-9494 Scott G. BuLLocK

Suite 200

1717 Pennsylvania

Avenue, NW

Washington, DC 20006

(202) 955-1300

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.