Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

Suprome Svonr® Us

Fu BE SBS

JAN 9 W39T

No. 96-243

r — iteatnt

In The

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 AMICUS CURIAE OF THE

AMERICAN PLANNING ASSOCIATION

IN SUPPORT OF RESPONDENT

S

Of Counsel: Brian W. Biaesser*

Daniet R. MANDELKER *Counsel of Record

Stamper Professor of Law __H. Bissett Carey, III

Washington University in} Rosinson & Coit

St. Louis One Boston Place

Campus Box 1120 Boston, Massachusetts

St. Louis, Missouri 63130 02108

(314) 698-7233 (617) 557-5900

Counsel for Amicus Curiae

January 9, 1997

COCKLE LAW BRIEF PRINTING CO., (800) 225-0964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES...

INTERESTS OF AMICUS CURIAE......

SUMMARY OF ARGUMENT

ARGUMENT

I.

MRS. SUITUM’S TAKINGS CLAIM IS NOT

RIPE BECAUSE SHE DID NOT SUBMIT AN

APPLICATION FOR TRANSFERABLE

DEVELOPMENT RIGHTS (TDRS) TO

ENABLE A COURT TO DETERMINE THE

EXTENT OF ECONOMIC IMPACT OF TRPA’S

LAND USE REGULATORY SYSTEM....

A. There is No Evidence in the Record that

Mrs. Suitum’s Property Has Been Ren-

dered Valueless.......

By Merely Filing a Building Permit Appli-

cation, Mrs. Suitum Did Not Satisfy the

One Application Rule Developed in Agins,

Hamilton Bank, and MacDonald .

THE COURT SHOULD RESOLVE THE TEN-

SION BETWEEN THE AGINS-MACDONALD

RULE, THAT A LANDOWNER MUST SUB-

MIT AT LEAST ONE “MEANINGFUL”

APPLICATION FOR APPROVAL, AND THE

HAMILTON BANK RULE, THAT A LAND-

OWNER MUST UTILIZE ALL AVAILABLE

ADMINISTRATIVE RELIEF AT THE LOCAI

RES adhe tho uwh su bessecOeessrens

A. Simplify the One Application Rule.

TABLE OF CONTENTS - Continued

Page

B. The Reapplication Rule Is Irrelevant to Due

Process and Equal Protection Claims.... 14

Ill. HAMILTON BANK REQUIRED TAKINGS

PLAINTIFFS TO APPLY FOR A VARIANCE

TO MAKE THEIR TAKINGS CLAIMS RIPE,

BUT THE RELATED APPROVALS NECES-

SARY TO MAKE A TAKINGS CASE FINAL

SHOULD DEPEND ON THE TYPE OF LAND

USE REGULATORY SYSTEM ............... 15

IV. THIS COURT SHOULD RECOGNIZE A

FUTILITY EXCEPTION TO THE RIPENESS

RULE AND SHOULD REQUIRE COURTS TO

APPLY IT AFTER A PLAINTIFF HAS MADE

ONE APPLICATION FOR A LAND USE

APPROVAL OR ADMINISTRATIVE RELIEF 20

A. Site-Specific Studies, Including Environ-

enental Studies ....vc.scotevcesenebeeunas 22

B. Statements of Officials Before, During and

After the Application Process ........... 22

C. Local Land Use Policies and Regulations... 22

D. The History of ae and Other Land

Use Decisions in the Community ....... 23

E. The Nature of Surrounding Land Uses.. 23

V. THE COURT SHOULD ELIMINATE THE SEC-

OND PRONG OF THE RIPENESS DOCTRINE

REQUIRING THE LANDOWNER TO HAVE

SOUGHT AND BEEN DENIED JUST COM-

PENSATION THROUGH AVAILABLE STATE

PROCEDURES AND ALLOW LANDOWNERS

WITH REGULATORY TAKINGS CLAIMS TO

PURSUE THEIR FEDERAL REMEDY IN FED-

BRAL QOURE ...sccccscncpensuseneenennenen 23

CONCLUSION 2... ccccccccccccsvccsesescnuseeuneenes 26

iii

TABLE OF AUTHORITIES

Cases:

Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993)......... 14

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

eT Ee rr rr rrrrrereerererereriree 10, 11, 12, 27

Carroll v. City of Prattville, 653 F. Supp. 933 (M.D.

EE th bheaud wiedevee< 15

Christensen v. Yolo County Bd. of Supervisors, 995

I I on so vcccecenccceceescecce: 24

City of Merriam v. Bd. of Zoning Appeals of the City

of Merriam, 748 P.2d 883 (Kan. 1988).............. 16

Connolly v. Pension Benefit Guaranty Corp., 475 U.S.

DPPPETESEGRGEURGSscceccesccesotcceccccocce: 7

Dodd v. Hood River County, 59 F.3d 852 (9th Cir.

UCU SCAEEUSSOebbedbceeccccescccccccceccce: 26

East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb

County Planning & Zoning Comm'n, 896 F.2d

ee eect ececcccecceeseceses: 24

Estate of Himelstein v. City of Fort Wayne, 898 F.2d

ET Dabs bs cbeberccesccccccceccccce: 24

Fields v. Sarasota Manatee Airport Authority, 953

i i Ms a ccwcccccccesceccececee: 25

First English Evangelical Lutheran Church of Glendale

v. County of Les Angeles, 482 U.S. 304 (1987)

SUUMEMEMUERUEEEAES EES CR sebdcoecescecceces 7, 24, 25, 26

Glisson v. Alachus County, 558 So.2d 1030 (Fla.

Dist. Ct. App. Ist Dist. 1990), review denied, 570

EY ME coc ce cccnccnsccccecccescecce 19

Goldblatt v. Hempstead, 369 U.S. 590 (1962)............ 7

iv

TABLE OF AUTHORITIES — Continued

Page

Golemis v. Kirby, 632 F. Supp. 159 (D.R.1. 1985)...... 14

Hadacheck v. Sebastian, 239 U.S. 394 (1915)............ 7

HMK Corp. v. County of Chesterfield, 616 F. Supp.

GOP GELEWe. BOER oo cccccccccnvcvccccccscccoccesss 13

Kaiser Development Co. v. City and County of Hono-

lulu, 649 F. Supp. 926 (D.Hawaii 1986), aff'd, 848

F.2d 112 (9th Cir. 1990), cert. denied, 499 U.S. 947

CODON. cv ccccncevcccccccesccssecuevadesusgens +e 13

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480

WG, BO GIT cc cccccccccvcccsevcceeccesceseces 7, 10

Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.),

modified, 830 F.2d 968 (9th Cir. 1987), cert. denied,

GB6 UG. BOGD CIGEED. oc cccccccccseccccecccscees 14, 21

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

Perr rrerrrrrrr rrr rrr rer rr rrr? rT rr 7

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340, reh’g denied, 478 U.S. 1035 (1986)

WTTTTITTTTT Tre PriiT eet e 9, 10, 11, 12, 14, 21

Mary Gardner v. New Jersey Pinelands Commission,

125 N.J. 193, 593 A.2d 251 (1991) ...... 66... - 0 eee 19

Miller v. Schoene, 276 U.S. 272 (1928). ..........00005:

Mugler v. Kansas, 123 U.S. 623 (1887).......... 600005.

Nectow v. City of Cambridge, 277 U.S. 183 (1928) ..... 16

Northern Va. Law School, Inc. v. City of Alexandria,

680 F. Supp. 222 (E.D. Va. 1988)...............05. 24

Oberndorf v. City and County of Denver, 900 F.2d

1434 (10th Cir.), cert. denied, 498 U.S. 845 (1990) ....

v

TABLE OF AUTHORITIES - Continued

Page

Ochoa Realty Corp. v. Faris, 815 F.2d 812 (1st Cir.

ened ocnese site dddddbevsedundsusdecncciscnse 14, 24

Palomar Mobilehome Park Ass'n v. San Marcos, 989

ee ee ee SC banibebcéccketeivedeevacees 25

Patsy v. Florida Board of Regents, 457 U.S. 496 (1982) ..... 8

Penn Central tion Co. v. City of New York, 438

US. 104, reh’g denied, 439 U.S. 883 (1978) ...... 5, 9, 19

Reahard v. Lee County, 30 F.3d 1412 (11th Cir. 1994),

cert. denied, __. U.S. __, 115 S. Ct. 1693 (1995) .... 24

River Park, Inc. v. City of Highland Park, 23 F.3d 164

SPUN Gb DN Sd ud iUe Vabedddededdvncddéececeé veces 14

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)...... 7

Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d

375 (9th Cir.), cert. denied, 488 U.S. 851 (1988)..... 14

Shubert Organization, Inc. v. Landmarks Preservation

Comm'n, 166 A.D.2d 115, 570 N.Y.S.2d 504 (1st

Dep’t 1991), appeal dismissed without op., 78

N.Y.2d 1006, 575 N.Y.S.2d 456, 580 N.E.2d 1059

(1991), and appeal denied, 79 N.Y.2d 751, 579

N.Y.S.2d 651, 587 N.E.2d 289 (1991), and cert.

denied, 504 U.S. 946, 112 S. Ct. 2289 (1992)........ 19

Silver v. Franklin Township Bd. of Zoning Appeals,

966 P.2d 16351 (6th Cie. 1992). .... 2. ccc cecccceness 24

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84 (2d

Cir. 1992), cert. denied, U.S. 987 (1993) ........ 24

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

See Oe GE EE cd veneccndededcdcoudesesecencecs 5

vi

TABLE OF AUTHORITIES - Continued .

age

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 938 F.2d 153 (9th Cir.

Pin cdccecsdnceveseus petucetesendesubatacsadeess 17

Tari v. Collier County, 56 F.3d 1533 (11th Cir. 1995) .... 24

United States v. Caltex, Inc., 344 U.S. 149 (1952),

reh'g dewied, 344 U.S. 919 (1953)... . 2... 6c eee ween ees 7

Unity Ventures v. County of Lake, 841 F.2d 770 (7th

Cir.), cert. denied, 488 U.S. 891 (1988).............. 14

Williamson County Regional Planning Comm'n v. .

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

Zilber v. Town of Moraga, 692 F. Supp. 1195 (N.D.

GR, BED ce cvcccescccccccccccescnccessseccesesces 13

MIscELLANEOUS:

L. Kendig, Perrormance Zoninc (American Plan-

ning Association 1978). ............0-cecee eee eeees 17

Pub. L. No. 95-625, § 502, 92 Stat. 3492 (codified at

16 US.C.A. § 471i) (1996)... 2.6.66 cece cece 19

3 Edward H. Ziegler, Jr., RarHxorr’s THe Law or

ZONING AND PLANNING at § 39.02[d] (1996) ......... 18

3 Edward H. Ziegler, Jr., RarHxorr’s THe Law or

ZONING AND PLANNING at § 39.02[e] (1996) ......... 19

INTERESTS OF AMICUS CURIAE*

The American Planning Association (“APA”) is a

non-profit association of 27,000 members, all of whom are

employed in the field of land use planning or are other-

wise vitally concerned with the discipline.

Virtually all members of APA are engaged in land use

pianning either on behalf of governmental bodies exercis-

ing regulatory authority over the use of real property or

for the benefit of holders of land subject to land use

regulation. Consequently, APA does not represent the

interests of those who seek to increase the constitu-

tionally permissible scope of government regulation nor

of those who promote the interests, constitutional or oth-

erwise of individual landowners. APA and its members

are fundamentally and vitally interested in the promotion

of the rational, predictable, effective, and beneficial use of

real property consistent with the needs of individuals

having recognized interests in property and the public at

large. APA members are the professionals who engage in

the planning to accomplish that fundamental goal.

°

SUMMARY OF ARGUMENT

Mrs. Suitum’s takings claim is not ripe because she

has not submitted an application for a development

rights transfer that would determine the economic impact

of the regulatory system on her property. Neither is there

evidence in the record that Mrs. Suitum’s property is

* The consents of the parties to the filing of this amicus brief

are on file with the Clerk.

made valueless by the Tahoe Regional Planning Agency

(“TRPA”) regulations, and this Court has held that the

retention ot some value in property is enough to defeat a

takings claim. This Court has made clear that under its

takings jurisprudence there is no assumption that the

only uses of property cognizable under the Constitution

are developmental uses.

Mrs. Suitum’s filing of a building permit application

did not satisfy the requirement that she make at least »ne

application for approval because it was clear umder

TRPA’s regulations that the building permit could not

issue. However, there is a tension between the Agins-

MacDonald rule that a landowner must submit one

“meaningful” application and the Hamilton Bank rule that

a landowner must utilize all available administrative

relief at the local level. This tension creates a weakness in

ripeness law that, frankly, some local governments have

exploited to frustrate “as-applied” takings claims in fed-

eral courts.

This weakness in ripeness law promotes uncertainty

in land use decision making by local governments that

ultimately undermines the rational, predictable, effective

and beneficial use of property — goals of vital concern to

Amicus curiae. Because of these two rules, a landowner

whose proposal has been denied has an agonizing choice.

Should she “reapply” with something “less ambitious,”

or apply for relief from the land use agency? What is

“meaningful” and what is “grandiose” within the limits

of a planning and zoning program is a matter of judg-

ment. Amicus curiae believes the Court should resolve this

tension between these two rules and create a more precise

and fair basis for determining when federal courts have

jurisdiction in takings cases.

Amicus curiae submits that it is the developer who

should decide whether she wishes to reapply for a land

use approval or risk litigation on her takings claim over

the denial of one application. This Court should also

clarify the confusion in the lower federal courts over the

scope of the reapplication rule and hold that while the

one application rule is always applicable to “as applied”

challenges, the reapplication requirement is not relevant

to substantive due process and equal protection claims.

Because such claims challenge the rationality of a regula-

tory decision and do not require proof that a landowner’s

property has been rendered valueless by the regulation,

these two claims do not require speculation on what

forms of less intensive development a local government

might have permitted.

This Court required applicants specifically to apply

for a variance to make their takings claims ripe, but it

should recognize that a variance is only one type of

administrative relief available to landowners. The type of

administrative relief available depends upon the land use

regulatory system the local government has adopted. The

transfer of development rights system option available in

this case is simply another form of administrative relief

available in many land use regulatory systems.

This Court should also recognize a futility exception

to the ripeness rule and should apply it after a landowner

has made one application for a land use approval or

administrative relief. Landowners should be able to rely

on a number of factors, including official statements and

local land use policies and regulations, to show futility.

This Court should also eliminate the second prong of

the ripeness doctrine that requires landowners to seek

and be denied just compensation through available state

procedures. Landowners with regulatory takings claims

should be able to pursue their federal compensation rem-

edy in federal court.

ARGUMENT

The Petitioner, Mrs. Suitum, did not seek authoriza-

tion for transferable development rights (“TDRs”) under

the land use and development regulations of the Respon-

dent, the TRPA. Therefore, the Court of Appeals for the

Ninth Circuit properly held that Plaintiff's regulatory

taking claim was premature under the “finality require-

ment,” the first prong of the ripeness standard enunci-

ated in Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985). The Ninth Circuit

stated:

Without an application for the transfer of devel-

opment rights, TRPA is foreclosed from deter-

mining the extent of the use of Suitum’s

property. By failing to apply to the TDR pro-

gram, Suitum denies TRPA the ability to grant a

“different form [ ] of relief . . . which might

abate the alleged taking.” Without 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 reason-

able investment-backed expectations, two criti-

cal components of a regulatory taking claim

analysis.

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

362-63 (9th Cir. 1996) (citations omitted).

I. MRS. SUITUM’S TAKINGS CLAIM IS NOT RIPE

BECAUSE SHE DID NOT SUBMIT AN APPLICA-

TION FOR TRANSFERABLE DEVELOPMENT

RIGHTS (TDRS) TO ENABLE A COURT TO

DETERMINE THE EXTENT OF ECONOMIC

IMPACT OF TRPA’S LAND USE REGULATORY

SYSTEM.

In the context of land use regulation, this Court's

ripeness doctrine was intended to address the Article III

posture of regulatory takings claims by determining if, and

the extent to which, the decision maker has inflicted a

concrete economic injury to the plaintiff. Ironically, the

first land use case in which this Court applied the ripe-

ness doctrine was Penn Central Transportation Co. v. City of

New York, 438 U.S. 104, reh’g denied, 439 U.S. 883 (1978), a

case involving land use regulations that also included

provisions for use of transferable development rights

(TDRs). The Court rejected a taking claim based on a

refusal of the city’s landmarks commission to approve a

high-rise building over Grand Central Terminal, which

had been designated an historic landmark. In rejecting

Penn Central's taking claim, this Court based its decision

on lack of ripeness on two factors, noting first that Penn

Central had “not sought approval for the construction of

a smaller structure” than the proposed 50-story office

building. Id. at 137. For this reason, the Court did “not

know” whether the plaintiff would be denied “any use”

of the airspace above the Terminal building. Second, the

Court noted that Penn Central could not accurately assert

that it had “been denied all use” of its “pre-existing air

rights” because these rights were transferable to other

parcels. Id. As to the relevance of the city’s TDR program

to the takings claim, the Court stated:

While these [TDR] rights may well not have

constituted “just compensation” if a “taking”

had occurred, the rights nevertheless undoubt-

edly 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.

Id. (citation omitted) (emphasis added)

A. There is No Evidence in the Record that Mrs.

Suitum’s Property Has Been Rendered Value-

less.

In order to conclude that the finality requirement of

the ripeness doctrine allows Mrs. Suitum to stop short of

making any application under the TDR program, it must

be assumed that Mrs. Suitum’s property has been ren-

dered valueless under TRPA’s regulations.' However,

' Of course, even if that were true, this Court has held that

in some circumstances a law that renders property valueless

there is no evidence in the record below that this is the

case. By contrast, in Lucas v. South Carolina Coastal Coun-

cil, 505 U.S. 1003 (1992), the state trial court had found

that the prohibition against erecting any permanent hab-

itable structures on Lucas’s parcels under the state's

Beachfront Management Act (the “Act”) rendered those

parcels “ ‘valueless’ ” Id. at 1007. The Court in Lucas also

made clear that its takings jurisprudence makes no

assumption that the only uses of property cognizable

under the Constitution are “ ‘developmental uses,’ ” stat-

ing:

We make no such assumption. Though our prior

takings cases evince an abiding concern for the

productive use of, and economic investment in,

land, there are plainly a number of noneconomic

interests in land whose impairment will invite

exceedingly close scrutiny under the Takings

Clause.

Id. at 1020 n.8. Moreover, this Court in Lucas never

restricted the “property interest” involved in takings to a

developmental interest. In fact, the Court acknowledged

may nonetheless not constitute a taking. See, e.g., First English

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

482 U.S. 304, 313 (1987); Goldblatt v. Hempstead, 369 U.S. 590, 596

(1962); United States v. Caltex, Inc., 344 U.S. 149, 155 (1952), reh’g

denied, 344 U.S. 919 (1953); Miller v. Schoene, 276 U.S. 272 (1928);

Hadacheck v. Sebastian, 239 U.S. 394, 405 (1915); Mugler v. Kansas,

123 U.S. 623, 657 (1887); cf. Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1011 (1984); Connolly v. Pension Benefit Guaranty Corp., 475

U.S. 211, 225 (1986). In Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470, 490 (1987), the Court stated:

“ “Although a comparison of values before and after’ a

regulatory action ‘is relevant... it is by no means conclusive’ ”

(citation omitted).

that the “rhetorical force” of its “ ‘deprivation of all eco-

nomically feasible use’ rule is greater than its precision,

since the rule does not make clear the ‘property interest’

against which the loss of value is to be measured.” Id. at

1016 n.7. The Court observed:

When, for example, a regulation requires a

developer to leave 90% of a rural tract in its

natural state, it is unclear whether we would

analyze the situation as one in which the owner

has been deprived of all economically beneficial

use of the burdened portion of the tract, or as

one in which the owner has suffered a mere

diminution in value of the tract as a whole.

Id. The Court did not need to reach this “difficult ques-

tion” because the record demonstrated that the Act had

left each of Lucas’s beachfront lots “without economic

value.” Id.

Plainly the Court’s language in Lucas indicates that

the principal focus of regulatory takings analysis is the

impact of the regulation upon economic value, not the loss

of the opportunity to physically develop the property. As

in Penn Central, the TDRs available to Mrs. Suitum could

mitigate the financial burden imposed by TRPA’s regula-

tory system and must be taken into account in consider-

ing their economic impact. However, because Mrs.

Suitum never submitted an application under the trans-

ferable development rights (TDRs) program, she has

made it impossible for a court to determine the extent of

the economic impact of TRPA’s regulatory system on her

property. In Patsy v. Florida Board of Regents, 457 U.S. 496

(1982), the Court recognized that “the finality require-

ment is concerned with whether the initial decisionmaker

has arrived at a definitive position on the issue that

inflicts an actual, concrete injury;. ...” Hamilton Bank,

supra, at 193. It begs the question for a court to commence

an assessment of that impact under a takings claim with-

out the court having the evidence of a TDR application

before it. In MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340, reh’g denied, 478 U.S. 1035 (1986), the Court

referred explicitly to use of an available TDR program as

one means to satisfy the ripeness question.

The local agencies charged with administering

regulations governing property development

are singularly flexible institutions; what they

take with the one hand they may give back with

the other. In Penn Central Transportation Co. v.

New York City, for example, we recognized that

the Landmarks Preservation Commission . . . had

authority in appropriate circumstances to authorize

alterations, remit taxes, and transfer development

rights to ensure the landmark owner a reasonable

return on its property. [citation omitted] Because

the railroad had “not sought approval for the

construction of a smaller structure” than its pro-

posed 50-plus story office building, [citation

omitted], we concluded “that the application of

New York City’s Landmark Law hal[d] not effec-

ted a ‘taking’ of [the railroad’s] property.” [cita-

tion omitted]. Whether the inquiry asks if a

regulation has “gone too far,” or whether it seeks to

determine if proffered compensation is “just,” no

answer is possible until a court knows what use, if

any, may be made of the affected property.

Id. at 350 (emphasis added).

10

B. By Merely Filing a Building Permit Applica-

tion, Mrs. Suitum Did Not Satisfy the One

Application Rule Developed in Agins, Ham-

ilton Bank, and MacDonald.

In Agins v. City of Tiburon, 447 U.S. 255 (1980), this

Court held that a landowner must obtain a decision on

his land use proposal from the local government before

he can bring an as applied takings challenge. In that case,

the plaintiffs had attacked the ordinance facially, as a

taking, without submitting a development plan. This

Court dismissed the case because the plaintiffs were “free

to pursue their reasonable investment expectations by

submitting a development plan to local officials.” Id. at

262. Although the Court in Agins did not use the term,

the decision clearly meant that a case involving a claim

that an ordinance as applied to a landowner’s property

constitutes a taking is not ripe for a judicial decision

unless the plaintiff has submitted a development plan for

approval when the ordinance permits such an applica-

tion.?

Once an application is submitted, the applicant must

pursue all other required approvals related to that appli-

cation to enable the decision maker to arrive at a “final,

2 In Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.

470 (1987), this Court held that a facial takings challenge,

namely, a claim that a regulation on its face and in its entirety, as

it applies to all property affected by it (including the

landowner'’s), effects a taking, is not subject to the ripeness

doctrine. However, it noted that plaintiffs “face an uphill battle

in making a facial attack on [a regulation] as a taking.” 480 U.S.

at 495.

11

definitive position” as to the application of the regula-

tions to the plaintiff's land. Hamilton Bank, supra, at 191.

Mrs. Suitum’s building permit application did not satisfy

this requirement because the building permit could not

issue under TRPA’s land use regulations.

This Court again addressed the application require-

ment in MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340, reh’g denied, 478 U.S. 1035 (1986). There the

plaintiff had submitted one subdivision application and

the county had rejected it. Nevertheless, the Court stated

that it was not clear the county would not allow “some

development,” id. at 351-52, and explained that the his-

tory of the case indicated “not that future applications

would be futile, but that a meaningful application had

not yet been made.” /d. at 352 n.8. In addition, the Court

stated that “[rjejection of exceedingly grandiose plans

does not logically imply that less ambitious plans will

receive similarly unfavorable reviews,” suggesting that

reapplication may be necessary before a court can deter-

mine the extent of economic injury. Id. at 353 n.9

(emphasis added).

Amicus curiae believes the tension between the Agins-

MacDonald rule that a landowner must submit one

“meaningful” application and the Hamilton Bank rule that

a landowner must utilize all available administrative

relief at the local level, creates a weakness in ripeness law

that many local governments have exploited to frustrate

as-applied takings claims in federal courts. We believe the

Court should resolve this tension and create a more pre-

cise and fair basis for determining when federal courts

have jurisdiction in takings cases.

12

Il. THE COURT SHOULD RESOLVE THE TENSION

BETWEEN THE AGINS-MACDONALD RULE,

THAT A LANDOWNER MUST SUBMIT AT LEAST

ONE “MEANINGFUL” APPLICATION FOR

APPROVAL, AND THE HAMILTON BANK RULE,

THAT A LANDOWNER MUST UTILIZE ALL

AVAILABLE ADMINISTRATIVE RELIEF AT THE

LOCAL LEVEL.

A. Simplify the One Application Rule

The MacDonald Court no doubt thought that by elab-

orating on the Agins rule to say that rejection of “grandi-

ose development” plans is not enough and that

reapplication is necessary, it was adding clarification to

the ripeness doctrine. However, in attempting such clari-

fication the MacDonald Court ignored the realities of land

use control and, consequently, created an agonizing

choice for the landowner. The reality is that what is

“grandiose” and what is “meaningful” within the limits

of a local planning and zoning program is a matter of

judgment. Because of the Agins-MacDonald and Hamilton

Bank rules, the landowner whose development proposal

has been denied, does not know what to do. Should the

landowner “reapply” with something less ambitious, or

apply for relief from the land use agency? If the land-

owner decides to reapply, the landowner does not know

how many times to reapply - risking that a court will

decide that her project is “grandiose” or that her applica-

tion is not “meaningful” no matter how many times it is

rejected, and require her to apply again. Neither is it clear

who has the burden of proof to show that the reapplica-

tion process has been exhausted.

13

Amicus curiae submits its brief on behalf of an asso-

ciation of planners, many of whom work for local govern-

ments. Many other planners who belong to the

association work for members of the development com-

munity. In fairness to the development community, it

must be recognized that the reapplication requirement

invites local government to create a more complicated

and time consuming review and approval process. It is, in

fact, an open invitation for some local governments to do

mischief. Unscrupulous officials can and often do easily

assert, after the fact, that they “would have been willing”

to consider an intensity of use or an alternative type of

use that the landowner never proposed. This is plainly

unfair and an abuse of the reapplication rule and is why

such a rule is unrealistic and should no longer be

required to demonstrate ripeness for adjudication.

Amicus curiae submits that, as discussed below, the

determination of when “enough is enough” should not be

left to the local governments to decide.*® Rather, it should

be for the landowner or developer who must weigh the

risks of litigation versus another application proposal to

decide whether in fact to contest the decision rendered

after the first application. Unless the Court's ruling in the

case sub judice resolves this tension between the Agins-

3 In fact, many lower federal courts have openly admitted

their difficulty in determining “when enough is enough” under

this aspect of the “finality” requirement. See, e.g., Zilber v. Town

of Moraga, 692 F. Supp. 1195 (N.D. Cal. 1988); Kaiser Development

Co. v. City and County of Honolulu, 649 F. Supp. 926 (D.Hawaii

1986), aff'd, 898 F.2d 112 (9th Cir. 1990), cert. denied, 499 U.S. 947

(1991); HMK Corp. v. County of Chesterfield, 616 F. Supp. 667

(E.D.Va. 1985).

14

MacDonald rules, that a landowner must submit a “mean-

ingful” plan for approval, and the Hamilton Bank rule,

that a landowner must utilize all available administrative

relief at the local level, landowners will continue to be

faced with an agonizing and unfair choice. Put simply, if

the landowner seeks administrative relief before reapply-

ing with a less “grandiose” project, the reapplication

requirement of the ripeness rule will, in all likelihood, bar

the landowner’s takings claim. That surely is not the

result that this Court intended under the “finality”

requirement of the ripeness doctrine.

B. The Reapplication Rule Is Irrelevant to Due

Process and Equal Protection Claims.

In MacDonald, the Court stated that “[o]ur cases uni-

formly reflect an insistence on knowing the nature and

extent of permitted development before adjudicating the

constitutionality of the regulations that purport to limit

it.” MacDonald, 477 U.S. at 351. Many lower courts have

focused upon this sentence and, where they have found a

takings claim to be unripe, have dismissed substantive

due process and equal protection claims as equally

unripe. See River Park, Inc. v. Citw of Highland Park, 23 F.3d

164 (7th Cir. 1994); Acierno v. Mitchell, 6 F.3d 970 (3d Cir.

1993); Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d

375 (9th Cir.), cert. denied, 488 U.S. 851 (1988); Kinzli v.

City of Santa Cruz, 818 F.2d 1449 (9th Cir.), modified, 830

F.2d 968 (9th Cir. 1987), cert. denied, 484 U.S. 1043 (1988);

Unity Ventures v. County of Lake, 841 F.2d 770 (7th Cir.),

cert. denied, 488 U.S. 891 (1988); Ochoa Realty v. Faria, 815

F.2d 812 (1st Cir. 1987); Golemis v. Kirby, 632 F. Supp. 159

15

(D.R.1. 1985). Other courts, however, have declined to

apply the reapplication rule. See Carroll v. City of Pratt-

ville, 653 F. Supp. 933 (M.D. Ala. 1987); Oberndorf v. City

and County of Denver, 900 F.2d 1434 (10th Cir.), cert. denied,

498 U.S. 845 (1990).

The Court of Appeals for the Ninth Circuit, following

its earlier ruling in Kinzli, held in this case that Mrs.

Suitum’s substantive due process and equal protection

claim were also premature under the ripeness doctrine.

Amicus Curiae submits, however, that because substantive

due process and equal protection claims challenge the

rationality of a regulatory decision and do not require

proof that a landowner’s property has been rendered

valueless by the regulation, these two claims do not

require speculation as to what forms of less intensive

development might have been permitted by the local

government. This Court should clarify the confusion in

the lower federal courts on this issue and rule that while

the one application rule reasonably applies to substantive

due process and equal protection claims, the reapplication

rule is not relevant.

Ill. HAMILTON BANK REQUIRED TAKINGS PLAIN-

TIFFS TO APPLY FOR A VARIANCE TO MAKE

THEIR TAKINGS CLAIMS RIPE, BUT THE

RELATED APPROVALS NECESSARY TO MAKE

A TAKINGS CASE FINAL SHOULD DEPEND ON

THE TYPE OF LAND USE REGULATORY SYS-

TEM.

In Hamilton Bank, this Court held a takings case not

final because the plaintiff had not applied for a variance

from applicable subdivision control regulations. This

16

Court’s emphasis on the need for a variance has confused

lower federal courts that have tried to apply Hamilton

Bank. The reason is that zoning systems usually include

other forms of administrative relief besides the variance,

and this Court should provide guidance on when admin-

istrative relief besides a variance is necessary.

Under the traditional Euclidean zoning system, the

variance was originally conceived as a “safety valve” to

give relief to a landowner while protecting the ordinance

from invalidation on the constitutional ground that the

particular landowner’s property was burdened to a

greater extent than other land in the vicinity, in violation

of the due process clause.* The courts generally distin-

guish between a use variance and an area variance. The

area variance fits the notion that was originally intended

in the State Standard Zoning Enabling Act (SSZEA) pro-

mulgated by the U.S. Department of Commerce in 1926. It

authorizes departures from ordinance restrictions on the

construction or placement of buildings and other struc-

tures. In other words, the area variance allows adjust-

ments to the requirements for yards, height, frontage,

setbacks and similar dimensional aspects. A use variance

quite simply permits a use that is otherwise prohibited in

the particular zoning district. See, e.g., City of Merriam v.

Bd. of Zoning Appeals of the City of Merriam, 748 P.2d 883

(Kan. 1988).

4 Nectow v. City of Cambridge, 277 U.S. 183 (1928)

(invalidating a zoning ordinance on constitutional grounds as

applied to a particular parcel, and articulating a balancing test

weighing the public interest against the private interest).

17

Traditional zoning systems also usually include

another form of administrative relief, known as a “condi-

tional use” or “exception.” A conditional use is a use

authorized by the zoning ordinance if certain criteria are

met, such as a requirement that the use be compatible

with uses in the surrounding area. The conditional use is

not a safety valve. It is not appropriate to require a

takings plaintiff to ask for an amendment, as some fed-

eral courts require, because an amendment is a legisla-

tive, not an administrative, act. See, e.g., Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning Agency,

938 F.2d 153 (9th Cir. 1991).

There are also land use systems based on what is

known as “performance” zoning. Performance zoning is a

flexible zoning technique designed to permit maximum

development on a site in a manner that minimizes

impacts upon neighboring uses and systematically avoids

the wastage of land and the destruction of natural

resources.> Under performance zoning, each tract of land

is considered unique — a function of its size, shape, and

natural features. Unlike conventional zoning, which con-

trols development by means of rigid lot size, setback, and

housing regulations, performance zoning controls inten-

sity of development with standards that set maximum

density, impervious surface coverage, and minimum open

space, or buffer yards. For example, in the residential

land use context, performance zoning utilizes two key

elements: (a) bufferyard standards that provide a range of

options to a developer; and (b) housing-type options

5 See generally, L. Kendig, Perrormance ZoninG (American

Planning Association 1978).

18

based upon site capacity analysis. Flexible bufferyard

provisions enable a developer to build at varying land

use intensities on a particular site without significantly

impacting neighboring land uses. Housing-type options

based upon site capacity analysis free the developer of

the restrictions in sizes and types of housing under con-

ventional zoning districts and enable the developer to

provide housing at various sizes and scales of units in

response to a fluc‘uating housing market, subject to per-

formance criteria. In this type of regulatory system, “vari-

ances” are not typically relied upon as a relief or

adjustment mechanism. Rather, the municipality simply

decides to give or withhold approval as part of an admin-

istrative decision rnaking system.

It is important, therefore, that the extent to which

approvals relating to an application must be pursued is

assessed within the context of the particular type of land

use system, whether it be based on a Euclidean zoning

system, a performance zoning system, or some other type

of land use control system. Transfer of development

rights (TDR) is simply another form of administrative

relief available in many zoning systems, including tradi-

tional and performance zoning. Transfer development

rights are well recognized in many jurisdictions as an

integral component of the local government's overall

land use regulatory system, particularly in efforts to pre-

serve agricultural lands and natural resource areas.® In

New Jersey, for example, the Pinelands TDR program has

made it possible to mitigate the effects of regulations

6 3 Edward H. Ziegler, Jr., Ratuxorr’s THe Law or ZONING

AND PLANNING at § 39.02[d] (1996).

19

enacted to preserve unique resources of the pine-oak

forest and wild and scenic rivers, which include habitats

for many rare, threatened and endangered plant and

animal species.” In addition to preserving these resources,

TDR regulations protect the seventeen-trillion-gallon

Cohansey aquifer, believed to be one of the largest

untapped sources of pure water in the world.

Many local governments have also enacted TDR pro-

grams to save open space.* Programs can be found in

Malibu and Monteray Counties, California, and cities and

towns in Florida, New Jersey, Vermont, Montana and

Pennsylvania. For example, the 3,100 acre special study

area in the Cross Creek region of Alachua County, Flor-

ida, with its exceptional wetlands and upland habitat

areas, has been saved through the use of TDR.?

Another major area in which governments have put

TDR to work to save critical resources while preserving

property rights is landmarks preservation.’ Private

7 Mary Gardner v. New Jersey Pinelands Commission, 125 N.].

193, 198; 593 A.2d 251 (1991). The U.S. Congress enacted The

National Parks and Recreation Act of 1978 to establish the one

million acre Pinelands Natural Reserve. Pub. L. No. 95-625,

§ 502, 92 Stat. 3492 (codified at 16 U.S.C.A. § 471i) (1996).

8 3 Edward H. Ziegler, Jr., Ramuxorr’s THe Law or ZONING

AND PLANNING at § 39.02[e] (1996).

% Glisson v. Alachua County, 558 So. 2d 1030, 1036 (Fla. Dist.

Ct. App. Ist Dist. 1990), review denied, 570 So.2d 1304 (Fla. 1990).

10 Penn Central Transportation Company v. City of New York,

438 U.S. 104 (1978); Shubert Organization, Inc. v. Landmarks

Preservation Comm'n, 166 A.D.2d 115, 117-18, 570 N.Y.S.2d 504

(1st Dep’t 1991), appeal dismissed without op., 78 N.Y.2d 1006, 575

N.Y.S.2d 456, 580 N.E.2d 1059 (1991), and appeal denied, 79 N.Y.2d

20

property owners, developers, planners and preservation-

ists all benefit by the use of TDR in landmarks preserva-

tion. The use of TDR today enables future generations to

experience and appreciate our historic resources.

In short, over the last 30 years TDR programs to

preserve critical natural resources, open space and land-

marks have become important and integral components

of land use planning and regulatory programs in this

country.

IV. THIS COURT SHOULD RECOGNIZE A FUTILITY

EXCEPTION TO THE RIPENESS RULE AND

SHOULD REQUIRE COURTS TO APPLY IT

AFTER A PLAINTIFF HAS MADE ONE APPLICA-

TION FOR A LAND USE APPROVAL OR ADMIN-

ISTRATIVE RELIEF.

This Court, of course, has recognized that a land-

owner is not required to use “unfair” procedures or to

make “futile” applications. Hamilton Bank, supra, at

205-206 (Stevens, J., concurring). However, this Court

seems to be unaware of the importance of exceptions to

the ripeness doctrine or the impact they could ultimately

have on the doctrine scope and effect. Amicus curiae sub-

mits that the major difficulty is that this Court sees more

certainty and less discretion in the land use control proc-

ess than actually exists, and views its final decision

requirement as a simple requirement, easily met. Nothing

751, 579 N.Y.S. 2d 651, 587 N.E.2d 289 (1991), and cert. denied, 504

U.S. 946, 112 S. Ct. 2289 (1992).

—_

21

could be further from the truth in a system where judg-

ments are qualitative and administration requires the

exercise of substantial discretion.

Cases in the Ninth Circuit have developed the futility

exception most fully. Kinzli v. City of Santa Cruz, 818 F.2d

1449, amended, 830 F.2d 968 (9th Cir. 1987), cert. denied, 484

U.S. 1043 (1988). This case held the futility rule applies

after a plaintiff has made one application or an applica-

tion for a variance.

It is respectfully submitted that the “futility” excep-

tion should always apply after one application has been

made for a land use approval or administrative relief. In

addition, the “one meaningful” application suggested in

MacDonald, because it has been abused by many local

governments and misinterpreted by the lower courts,

should not be used to gauge whether the futility excep-

tion is satisfied. Rather, the finality requirement should

be applied reasonably to recognize that a local govern-

ment’s position on the nature and intensity of develop-

ment can be determined from factors other than repeated

applications and denials. These factors should include:

1. Site feasibility studies (i.e., environmental)

2. Statements of officials before and during the

application process

3. Local land use policies and regulations

4. The history of zoning and other land use

decisions in the community

5. The nature of surrounding land uses.

22

A. Site-Specific Studies, Including Environmental

Studies

Often a land use agency will reject a development

because site conditions make it ineligible for approval.

For example, an ordinance may allow approval of a con-

ditional use only if services available to the site, or ade-

quate. If a land use agency rejects a proposal because

services at the site are inadequate, the applicant should

be able to show that further application is futile because

services are adequate yet the agency refused to give

approval.

B. Statements of Officials Before, During and

After the Application Process

Local zoning officials often make statements on

pending land use applications, either during a hearing or

in public. These statements can demonstrate that further

application is futile, once land use agency has reiected an

application.

C. Local Land Use Policies and Regulations

Often a land use agency will reject a land use appli-

cation because of a local land use policy continued either

in a comprehensive plan or in development regulations.

Unless there is some evidence that the municipality may

be willing to change the policy, further application will be

futile.

et A ee . .

23

D. The History of Zoning and Other Land Use

Decisions in the Community

The rejection of a plaintiff's development application

may simply be part of a pattern of similar rejections in

the community. For example, the application may be for

low-cost housing and the applicant may be able to show

the community has regularly rejected applications for

such housing. Evidence of this also should be enough for

a futility holding.

E. The Nature of Surrounding Land Uses

The nature of surrounding land use is often critical to

the success of a land use application, such as an applica-

tion for a conditional use. If an application is rejected in

this kind of case because the land use agency claims

surrounding uses are incompatible, but the applicant can

show they are compatible, further application will be

futile and the claim should be ripe.

V. THE COURT SHOULD ELIMINATE THE SECOND

PRONG OF THE RIPENESS DOCTRINE REQUIR-

ING THE LANDOWNER TO HAVE SOUGHT AND

BEEN DENIED JUST COMPENSATION

THROUGH AVAILABLE STATE PROCEDURES

AND ALLOW LANDOWNERS WITH REGULA-

TORY TAKINGS CLAIMS TO PURSUE THEIR

FEDERAL REMEDY IN FEDERAL COURT.

When the Supreme Court first adopted the ripeness

rules in Hamilton Bank, it held that one prong of the

doctrine requires takings plaintiffs to seek compensation

in state court if it is available. Lower federal courts have

24

abused this requirement. Some courts require a showing

that state courts will grant a compensation remedy. See,

e.g., Reahard v. Lee County, 30 F.3d 1412 (11th Cir. 1994),

cert. denied, __ U.S. __, 115 S.Ct. 1693 (1995); Silver v.

Franklin Township Bd. of Zoning Appeals, 966 F.2d 1031 (6th

Cir. 1991); Ochoa Realty Corp. v. Faris, 815 F.2d 812 (1st Cir.

1987). Other courts bar plaintiffs from federal court even

when it is not clear a state court remedy is available. They

hold a plaintiff must attempt to seek compensation in

state court until the state court holds the compensation

remedy is unavailable. See, e.g., Southview Assocs., Ltd. v.

Bongartz, 980 F.2d 84 (2d Cir. 1992), cert. denied, 507 US.

987 (1993); Estate of Himelstein v. City of Fort Wayne, 898

F.2d 573 (7th Cir. 1990); East-Bibb Twiggs Neighborhood

Ass'n v. Macon Bibb County Planning & Zoning Comm'n,

896 F.2d 1264 (11th Cir. 1989).

These holdings effectively drain the ripeness rules of

any meaning. They prevent federal courts from ever

reaching the final decision issue because, under this view,

a takings plaintiff must seek compensation in state court

until that court clearly says it will not entertain a com-

pensation remedy.

Some federal courts take an even more extreme posi-

tion on the availability of a state compensation remedy.

They hold that takings plaintiffs must sue in state court

under the implied federal constitutional action for com-

pensation created in First English. Tari v. Collier County, 56

F.3d 1533, 1537 n.23 (11th Cir. 1995); Christensen v. Yolo

County Bd. of Supervisors, 995 F.2d 161 (9th Cir. 1993);

Northern Va. Law School, Inc. v. City of Alexandria, 680 F.

Supp. 222 (E.D. Va. 1988). This view of ripeness even

more clearly makes the ripeness rules an absolute bar to a

25

taking remedy. The federal constitution is always action-

able in state court. If takings plaintiffs must always sue in

state court first on the federal remedy, they will never

establish federal court jurisdiction over a takings claim.

This problem becomes even more serious if a takings

plaintiff cannot return to federal court once a state court

adjudicates the takings claim. A plaintiff usually is barred

from relitigating a state case in federal court under res

judicata and collateral estoppel principles. An exception

exists when a federal court forces a plaintiff into a state

court by abstaining, but it is not clear whether it applies

when ripeness rules force a plaintiff into state court.

Compare Fields v. Sarasota Manatee Airport Authority, 953

F.2d 1299 (11th Cir. 1992) (exception applies), with Pal-

omar Mobilehome Park Ass'n v. San Marcos, 989 F.2d 362

(9th Cir. 1993) (contra).

Amicus curiae submits that the rule that takings plain-

tiffs must first sue in state court for compensation under

the federal constitution is incorrect. When this Court first

adopted the ripeness rules, there was no remedy for

compensation in federal courts. Indeed, this Court

adopted ripeness rules to avoid deciding whether a fed-

eral compensation remedy is available. In the absence of a

federal compensation remedy, it perhaps made sense to

require takings plaintiffs to seek a state compensation

remedy first.

This situation has now changed. In 1987, in First

English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 302 (1987), this Court held that a remedy

for compensation in takings cases is available under the

federal constitution. Federal courts should not require

26

takings plaintiffs to go to state court to seek compensa-

tion before taking advantage of this federal remedy.

A Ninth Circuit panel has now held that the avail-

ability of a compensation remedy i state court under

First English does not satisfy the requirement that a tak-

ings plaintiff must sue for compensation first in state

court. Dodd v. Hood River County, 59 F.3d 852 (9th Cir.

1995). The court held that federal ripeness rules require

the availability of a state compensation remedy. It stated

that “to hold that a taking plaintiff must first present a

Fifth Amendment claim to the state court system as a

condition precedent to seeking relief in a federal court

would be to deny a federal forum to every takings claim-

ant.” Id. at 860. The court was “satisfied that Williamson

County may not be interpreted to command such a revo-

lutionary concept and draconian result.” Id. at 861.

This issue is important in Suitum because forcing the

plaintiff to seek a remedy under First English in state

court will make her case unripe even though she later

satisfies the final decision rule. This Court should follow

the holding in Dodd in order to make it clear that plain-

tiffs in as-applied takings cases can obtain a ruling in

federal court on the federal takings law that this Court

has developed so extensively in recent years.

°

CONCLUSION

This case affords the Court an opportunity to clarify

the application of the “finality” requirement of the ripe-

ness doctrine to land use cases so that the requirement

serves its intended purpose. That purpose is to encourage

et

27

the decision maker to arrive at a definitive position on

the issue that is alleged to inflict an actual, concrete and

justiciable injury. It is not to encourage the creation of

complex, time-consuming review and approval processes

that waste the resources of local government and create a

climate of regulatory uncertainty that does not promote

the public interest.

The Court’s ruling in this case should resolve the

tension between the Agins-MacDonald rule, that a land-

owner must submit a “meaningful” plan for approval,

and the Hamilton Bank rule, that a landowner must utilize

all available administrative relief at the local level. The

Court's clarification and guidance on the “finality” prong

of the ripeness doctrine will promote the rational, effi-

cient and predicable and beneficial use of real property in

concert with the public interest.

January 9, 1997

Respectfully submitted,

Brian W. Biagsser*

“Counsel of Record

H. Bissert Carey, Ill

Rosinson & Core

One Boston Place

Boston, Massachusetts 02108

(617) 557-5900

Attorneys for Amicus Curiae

Of Counsel:

Danie. R. MANDELKER

Stamper Professor of Law

Washington University in St. Louis

Campus Box 1120

St. Louis, Missouri 63130

(314) 968-7233