Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

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No. 96-243

Supreme Court, U.S.

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Supreme Court of the Uni

IN THE

October Term, 1996

BERNADINE SUITUM,

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TAHOE REGIONAL PLANNING AGENCY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 9 1997

d States

Petitioner,

BRIEF FOR THE STATE OF NEW YORK

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

*Counsel of Record

DENNIS C. VACCO

Attorney General of the State of New York

BARBARA G. BILLETT

Solicitor General

PETER H. SCHIFF

Deputy Solicitor General

JOHN J. Sipos*

LISA M. BURIANEK

Assistant Attorneys General

The Capitol

Albany, NY 12224

(518) 474-8480

Attorneys for the State of New York

THE REPORTER CO., INC.-Walton, NY 13856 - 800-252-718!

Syracuse Office, University Building. Syracuse, NY 13202 - 315-426-1235

NYC Office - 30 Vesey St.. New York, NY 10007 - 212-732-6978 - 800-800-4264

(2819 — 1997)

Printed on Recycled Paper

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES

il, ill, iv

INTEREST OF AMICUS

The Long Island Aquifer and the Central Pine Barrens

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B. The Long Island Pine Barrens Protection Act

C. The Long Island Pine Barrens Credit Program ...

ARGUMENT

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases

Concrete Pipe and Products, Inc. v. Construction Laborers

Pension Trust, 508 U.S. 602 (1993) ............045. 10

Fred French Investing Co. v. City of New York, 39 N.Y.2d

587, 385 N.Y.S.2d 5, cert denied, 429 U.S. 990

APOC Perr > ae eee eee 10

Gardner v. New Jersey Pinelands Commission, 125 N.J.193,

SIE vnceeb5esesées ceeseccecoes 10

Long Island Pine Barrens Society, Inc. v. Planning Bd. of the

Town of Brookhaven, 80 N. Y.2d 500, 591 N.Y.S.2d 982

SR eUeeUucdend cGe est obs COUN S00 006 c0ec0ee 3

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

Ee ee? re Py Te rer er eee ey )

New State Ice Co v. Liebmann, 285 U.S. 262 (1932) ...... 10

Penn Central Transportation Co. v. City of New York, 42

N.Y.2d 324, 397 N.Y.S.2d 914 (1977), aff'd, 438 U.S.

DP atch éebecanedeeceentcecdespe 8,9, 10, 11

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

EA GE te tics Chibi e cent 6s 006006005 80 000 fn.

Federal Regulations

iii

State Statutes

Civil Practice Law and Rules (“CPLR”)

Environmental Conservation Law

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iv No. 96-243

Town Law —

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TAHOE REGIONAL PLANNING AGENCY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE STATE OF NEW YORK

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS

Amicus the State of New York is concerned about the

potential impact of the Court's ruling in this case on several

transferable development rights programs throughout the State.

An overly-broad ruling, along the lines suggested by the

petitioner, could adversely affect New York's programs. Given

the differences among the numerous transferable development

rights programs throughout the country, New York State

respectfully urges the Court to tailor any holding regarding

transferable development rights to the program before it.

The State has enacted a number of statutes that provide for the

transfer of economically beneficial uses from one parcel of

property to another. For example, the Legislature amended the

Town Law to provide each municipality throughout the State

with the authority to establish a Transferable Development

Rights program. See Town Law § 261-a. Also, the Adirondack

Park Agency Act permits adjacent parcels to aggregate their

development rights on a single parcel. See Executive Law

§ 809(10)(c). Moreover, New York City's historic preservation

regulations include a transferable development rights program.

In addition to these varied programs, the New York State

Legislature recently enacted a comprehensive land use statute

for the Central Long Island Pine Barrens (the "Act") that

provided for the development and implementation of a voluntary

transferable development rights program. See Environmental

Conservation Law ("ECL") Article 57 (McKinney’s 1996

Supp.). The Act, which we describe in some detail, has two

central goals: (1) to protect the quality of Long Island's drinking

water; and (2) to preserve the unique ecosystem of the Long

Island Central Pine Barrens for present and future generations.

ECL § 57-0105.

There can be no dispute about the critical importance of the

Long Island aquifer and the fire-prone Central Pine Barrens

ecosystem. The United States Environmental Protection Agency

has determined that Long Island's sole-source aquifer provides

the “sole or principal drinking water supply” for the area's 2.5

million citizens and "is vulnerable to contamination." See 43

Fed. Reg. 2661 1-12 (June 21, 1978). Given that the Long Island

aquifer is the principal source of drinking water for Nassau and

Suffolk Counties, the EPA determined that the contamination of

the aquifer "would create a significant hazard to public health.”

Id. at 26612. The New York State Legislature has long sought

to protect this vital resource. For example, in 1987, the Legisla-

ture enacted the Sole Source Aquifer Protection Law, ECL

Article 55, to assist in comprehensive planning to protect the

water quality of the Long Island aquifer. ECL § 55-0101.

Four years ago, in Long Island Pine Barrens Society, Inc., v.

Planning Bd. of the Town of Brookhaven, 80 N.Y .2d 500, 591

N.Y.S.2d 982 (1992), the New York Court of Appeals summa-

rized the fragility and critical environmental attributes of the

Central Pine Barrens. 80 N.Y.2d at 510-11, 591 N.Y.S.2d at

985-86. The Court stated that "[t]he Pine Barrens’ singular

geological and meteorological history, as well as its highly

unusual soil, vegetation and water levels, make it particularly

hospitable to a wide variety of life forms whose survival could

well be threatened by development." 80 N.Y.2d at 509, 591

N.Y.S.2d at 984-85. The Court also recognized that the "Pine

Barrens is an indispensable component of the aquifer system

that is the sole natural source of drinking water for over two and

a half million inhabitants of Long Island," 80 N.Y.2d at 508, 591

N.Y.S.2d at 984, and is:

especially vulnerable to the risk of pollution, since its

permeable soil is not readily capable of filtering or

degrading contaminants. As is indicated by at least one

study, once the deep recharge system in this area be-

comes contaminated, it would take centuries to flush it

sufficiently to return it to clean groundwater quality.

Thus, as a practical matter, contamination would be

irreversible. ... It is thus apparent that the protection of

the Pine Barrens region from sources of pollution is vital

to the health of Long Island's human population.

80 N.Y.2d at 509, 591 N.Y.S.2d at 984-85.

While holding that a cumulative environmental impact

statement covering 224 development projects was not mandated

by the State Environmental Quality Review Act ("SEQRA")

regulations, 80 N.Y.2d at 517, 591 N.Y.S.2d at 990, the Court

stated that "an exhaustive and thorough approach to evaluating

projects affecting [the Central Pine Barrens] is unquestionably

desirable and, indeed, may well be essential to its preservation.

..." 80 N.Y.2d at 515, 591 N.Y.S.2d at 988. The Court

recognized "the need for centralized planning by a single

regional agency" and called for a legislative resolution to the

problems caused by piecemeal development stating that "the

solution must be devised by the Legislature, which is responsi-

ble for crafting sensible deadlines and mandating prompt action

by the designated planning bodies to address this matter of

urgent public concern.” 80 N.Y.2d at 516, 518, 519 N.Y.S.2d

at 989, 990.

B. The Long Island Pine Barrens Protection Act

Soon thereafter, the New York State Legislature enacted L.

1993, c. 262, 263. See also L. 1996, c. 145. The Legislature

declared that the protection of Suffolk County's Pine Barrens,

especially the area known as the Central Pine Barrens, is of

"critical" importance to the State because it lies over "the largest

source of pure groundwater in New York" and "contains one of

the greatest concentrations and diversities of endangered,

threatened and special concern species of plants and animals to

be found in the state," ECL § 57-0105, and that the area’s

"hydrological and ecological integrity is endangered," ECL § 57-

0119(1). The Act divided the Central Pine Barrens into two

areas known as the Core Preservation Area and the Compatible

Growth Area, ECL §§ 57-0105, 57-0107 (10),(11), required the

preparation of a state-supported Central Pine Barrens Compre-

hensive Land Use Plan (the "Plan"), ECL § 57-0105, and

established the Central Pine Barrens Joint Policy and Planning

Commission "to plan, manage and oversee land use" within the

Pine Barrens. ECL § 57-0119 (1), (2), (6). In accordance with

the Act, the Commission prepared the Plan which subsequently

was adopted by the involved towns and Suffolk County.

Governor Pataki signed the Plan on June 28, 1995.

The Act and the Plan permit agricultural, recreational, and

some residential uses within the Core Preservation Area. ECL

§ 57-0121(3); L. 1996, c. 145. Also, landowners who wish to

develop property within the Core Preservation Area may apply

for a development permit for any land use, and the Commission

may permit such use pursuant to the Act. ECL §§ 57-

0123(3); 57-0121(10). The Act specifically provides that, like

other administrative actions, the Commission’s permit determi-

nations are reviewable in state court proceedings, and should the

court find a taking, the Commission must either permit the

requested development or pay for the acquisition of the property

interest in question. ECL § 57-0135; CPLR Article 78.

C. The Long Island Pine Barrens Credit Program

In addition to the uses discussed above, and because the Plan's

land use regulations may limit the value of some lands, anew

use right under the Pine Barrens Credit Program was established

for all privately owned property in the Core Preservation Area.

Specifically, the Pine Barrens Credit Program vests in Core

Preservation Area real property the right to transfer development

potential or "development rights" to other property designated

for more intense development upon receipt of Pine Barrens

Credit. ECL § 57-0105; see also ECL § 57-0121(6)(m); ECL §

57-0119(6)(j), (p). Pursuant to the Act, the Plan identified

"Sending Districts" within the Core Preservation and Compati-

ble Growth Areas, and "Receiving Districts" outside of the Core

Preservation Area. ECL § 57-0121(6)(f). The Act also directed

the Commission to establish a system generally referred to as the

"Development Rights Bank"—a system whereby values are set

and standards established with respect to the purchase, sale,

ownership, and transfer of development rights. ECL

§ 57-0119(6)(j); ECL § 57-0119(7)(b); ECL § §7-0121(6)(f).

Accordingly, the Plan established a Pine 5arrens Credit Clear-

inghouse to facilitate the transfer of development rights from the

sending areas to receiving areas through the issuing, monitoring,

brokering, purchasing, and selling of credits.

Obtaining Pine Barrens Credits for sending area property is a

two-step process. First, an owner may request and receive a

Letter of Interpretation issued by the Pine Barrens Credit

Clearinghouse which determines the number of Pine Barrens

Credits generated by an individual tax parcel. This document

specifies the total number of credits that may be allocated to a

given parcel of property in the sending area. Pine Barrens

Credits are allocated to property in the sending areas based upon

a set formula that takes into account a parcel's size and zoning

category (prior to the Plan's enactment).' As of December 20,

1996, 219 Letters of Interpretation allocating 221 Pine Barrens

Credits were issued for Core Preservation Area parcels within

the three towns.

Having obtained a Letter of Interpretation for the property, the

landowner may pro_eed to the second step, obtaining a Pine

‘The program also incorporates an appellate process by which a property

owner may seek and obtain a greater allocation of Pine Barrens Credits if the

owner is dissatisfied with the allocation established by the formula.

Barrens Credit Certificate. A landowner obtains a certificate by

recording a conservation easement for the sending area property.

The conservation easement permanently limits the future uses of

the sending area parcel as defined in the conservation easement.’

The owner then receives the Certificate following the recording

of the conservation easement with the County Clerk. For the

majority of small property landowners, participation in the Pine

Barrens Credit Program will not involve any out-of-pocket

expenses. In exchange for the conservation easement, the Pine

Barrens Credit Certificate permits certain land uses to be

transferred to the receiving area.

Landowners who have received a Pine Barrens Credit

Certificate may use the credit in one of several ways. First,

landowners can sell the Certificate directly to the Clearinghouse,

and the Commission established the prices that the Clearing-

hc»se will pay for Pine Barrens Credits. The Clearinghouse will

purchase Pine Barrens Credit Certificates from any Core

Preservation Area property owner wishing to sell one or more

Pine Barrens Credit Certificate(s) or a portion thereof. The

Clearinghouse has a five million dollar revolving fund to

purchase Certificates. Any Pine Barrens Credits purchased by

the Clearinghouse can then be sold by the Clearinghouse, and

the proceeds from such sales will be reinvested by the Clearing-

house to replenish the fund and to purchase future Pine Barrens

Credit Certificates. ECL § 57-0119(6))).

2Once a conservation easement is recorded and the Pine Barrens Credits

are transferred, the sending parcel is entitled to a reduction in assessed value

under the Town Law §261-a(2)(d), and a corresponding reduction in real

property taxes will result.

Second, holders of Pine Barrens Credit Certificates could also

sell their credits to another landowner or developer on the

private market. The value of a credit lies in the ability to redeem

it for the right to increase development beyond that permitted by

current zoning. To facilitate the development of this private

market and to match interested buyers with interested sellers of

Pine Barrens Credits, the Clearinghouse publishes on a monthly

basis the Pine Barrens Credit Registry. See ECL § 57-

0121(6\(f). A third option for an owner of property in both the

sending and receiving areas is to transfer the credits from the

sending parcel to the receiving parcel.

Notably, the Plan ensures that holders of Pine Barrens Credit

Certificates may convert that certificate into an actual land use

in the receiving area "as of right" by providing that "the redemp-

tion of Pine Barrens Credits entitles a person to an increase in

‘intensity or density in accordance with this Plan . . . with no

additional special permit required" within the same town. See

Plan at § 6.4.1.1.

ARGUMENT

TRANSFERABLE DEVELOPMENT RIGHTS PRO-

GRAMS, INCLUDING THE PINE BARRENS CREDIT

PROGRAM, PROTECT ECONOMICALLY BENEFI-

CIAL USES OF PROPERTY

Should the Court reach the merits of the respondent's transfer-

able development rights program, New York urges the Court to

follow the teachings of its landmark ruling in Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 137 (1978),

affirming, 42 N.Y.2d 324, 397 N.Y.S.2d 914 (1977), and

reconfirm that properly designed transferable development

rights programs provide economically beneficial uses.’ In

contrast, petitioner’s overly-broad attack, by ignoring both Penn

Central decisions and the fact that the transferable development

rights are of value to the petitioner, could undermine land use

programs that seek to protect watershed areas, farmland, and

open space. Petitioner seems intent on shoehorning this case

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

1003 (1992), or an onerous troop deployment. Pei. Br. at 32-3.

Neither scenario applies to this case in particular or transferable

development rights programs in general: Lucas was grounded

on the factual finding by the state trial court that the Beachfront

Management Act "rendered [the two lots] valueless," 505 U.S.

at 1009, while the Third Amendment protects against such

hypothetical troop deployments. In contrast, here the property

retains value and there has been no physical invasion either by

the public or troops. Aside from physical invasions and

regulations involving the destruction of a// value, the Court has

eschewed a rigid, bright-line test in favor of an "ad hoc, factual

inquir[y] into the circumstances of each particular case."

*New York submits that the Ninth Circuit correctly decided the ripeness

question. Petitioner's counsel, it seems, would like to have it both ways. On

the one hand, they would like to press a legal challenge and bypass the

respondent planning agency's review of the actual transfer of petitioner's

economically beneficial uses. On the other hand, petitioner's unilateral

decision not to apply for the transfer of her economically beneficial uses

prevented the agency from fulfilling its duty to review the actual transfer of

petitioner's valuable beneficial uses, and thus permitted her counsel to argue

that the program is a “ruse.” See Suitum v. Tahoe Regional Planning Agency,

80 F.3d 359, 363 (9th Cir. 1996); Pet. Br. at 9 (questioning "if any [recipi-

ents] can be found"). Thus, petitioner, by her unilateral actions, has forced

the agency to defend a legal challenge and impeded it from responding to her

allegations.

Concrete Pipe and Products, Inc. v. Construction Laborers

Pension Trust, 508 U.S. 602, 643 (1993).

A number of transferable development rights programs exist

throughout New York State, e.g., Penn Central, 42 N.Y.2d 324,

397 N.Y.S.2d 914 (1977), affirmed, 438 U.S. 104 (1978), and

throughout the nation, e.g., Gardner v. New Jersey Pinelands

Commission, 125 N.J.193, 593 A.2d 251 (1991). State and local

governments, each "serv[ing] as a laboratory," New State Ice

Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,

dissenting), are searching for innovative ways to address

competing land use, planning, and environmental issues. Each

transferable development rights program is distinct, with

different components and procedures, and designed to address

different situations. Consistent with well established Fifth

Amendment jurisprudence, each of these programs must be

analyzed on its own particular facts.

Properly constructed transferable development rights pro-

grams do not deprive property owners of all economically

beneficial uses of their property. Rather, such programs, like the

Pine Barrens Credit program, ensure that the economically

beneficial use is transferred to other parcels of land. Penn

Central, 42 N.Y.2d at 334, 397 N.Y.S.2d at 920. Transferable

development rights programs do not leave the transferable

economica’™™ ‘eneficial use in “legal limbo." Penn Central, 42

N.Y.2d at 330, 397 N.Y.S.2d at 921; Fred French Investing Co.

v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, cert

denied, 429 U.S. 990 (1976). Some programs incorporate a

bank or clearinghouse that stands ready to purchase certificates

or rights from willing landowners and thereby provide greater

certainty. Jd. Other programs include clearly delineated

receiving areas. Id.

Twenty years ago, in rejecting a challenge to New York City's

historic preservation regulations, the New York Court of

Appeals ruled that the transfer of such economically beneficial

uses "may be considered as part of the owner's return on the

property." Penn Central, 42 N.Y.2d at 328, 397 N.Y.S.2d at

916. In affirming the New York Court of Appeals, this Court

recognized that landowners retained "valuable" uses under the

historic preservation and transferable development rights

program, and that, therefore, they were not denied all use of any

so-called "pre-existing air rights." 438 U.S. 104, 137. Specifi-

cally, the Court stated that the "ability to use those rights has not

been abrogated; they are made transferable to at least eight other

parcels in the vicinity. . ." Jd. Moreover, the landowner’s

retention of such valuable uses under the transferable develop-

ment rights program “nevertheless undoubtedly mitigate

whatever financial burdens the law has imposed on appellants

and, for that reason, are to be taken into account in considering

the impact of regulation." /d. The same rationale should apply

with equal force to the present case and in other cases involving

transferable development rights programs.

CONCLUSION

Despite petitioner's criticisms on the Tahoe Regional Plan-

ning Agency's transferable development rights program, the

record in this case demonstrates that her Mill Creek property

provides her with valuable, economically beneficial uses.

Accordingly, there is no categorical taking.

For the foregoing reasons, the judgment of the United States

Court of Appeals for the Ninth Circuit should be affirmed.

Dated: Albany, New York

January 9, 1997

Respectfully submitted,

DENNIS C. VACCO

Attorney General of the

State of New York