Amicus Curiae Brief — Monterey v. Del Monte Dunes at Monterey, Ltd.

Supreme Court, U: $.

j FILED

No. 97-1235 tN 4 19%

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

CITY OF MONTEREY.

Petitioner,

DEL MONTE DUNES AT MONTEREY LIMITED, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF

LEAGUE FOR COASTAL PROTECTION,

PLANNING AND CONSERVATION LEAGUE,

CENTER FOR MARINE CONSERVATION,

CHESAPEAKE BAY FOUNDATION,

NATIONAL TRUST FOR HISTORIC PRESERVATION,

NATIONAL WILDLIFE FEDERATION, AND SIERRA CLUB

IN SUPPORT OF RESPONDENTS

JOHN D. ECHEVERRIA

ENVIRONMENTAL POLICY PROJECT

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Avenue, N.W.

Washington, DC 20001

(202) 662-9850

Counsel of Record for Amici Curiae

PRESS OF BYRON S. ADAMS ¢ WASHINGTON, D.C. @ 1-800-347-8208

~|BEST AVAILABLE COPY Fi

TABLE OF CONTENTS

Page

TABLE GP AUTIIGUEEES 6 i ceeds susssva ii

SEAR IPORUE CE MUCMEEOE 6 be ec ee ets ee eas l

SUMMARY OF ARGUMENT .......0c00ec008 2

pe ee re ere ee ee Ps 3

I. Dolan \s Irrelevant to this Case Because the

Dolan Standard is Limited to Regulatory

Conditions Effecting a Permanent Physical

Invasion of Property, and the Land Use

Regulation in This Case Did Not Effect a

Permanent Physical Invasion. ............ 3

Il. Whether a Regulation Furthers a Legitimate

Government Purpose Raises a Threshold Issue

About the Regulation’s Validity, Not an Issue

Dispositive of Whether the Regulation Effects a

Taking Requiring Payment of Just

COL. ba Kv ds Seas eee 6

A. Means-Ends Analysis is Not a Proper

Component of the Inquiry Whether a Land

Use Restriction Effects a Compensable

We, eect dnads bide eee 8

B. Agins Should Not be Read to Support the

Conclusion that Means-Ends Analysis Is a

Free-standing Test for Determining

Whether a Restriction on Land Use

en @ WE. 6 ve ink 0s eh owe 14

CRANGMAMIEEN 6 vct paces een we Wabencbetoes 21

TABLE OF AUTHORITIES

Page

CASES

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

Armstrong v. United States, 364 U.S. 40 (1960) ..... 10

Brunelle v. Town of South Kingston, 700 A.2d 1075 (R.1.

SON 2 ie A ee er 20

Clajon Production Corp. v. Petera, 70 F.3d 1566 (10th

re ae ee ee ee 2 ee 4

Commercial Builders v. City of Sacramento, 941 F.2d

872 (9th Cir. 1991), cert. denied, 505 U.S. 931

a ene ae oe ee 5

Del Monte Dunes at Monterey, Lid. v. City of Monterey, .

95 F.3d 1422 (9th Cir. 1996) ............ passim

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

First English Evangelical Lutheran Church v. County of |

Los Angeles, 482 U.S. 304 (1987). ........ passim

Fred F. French Investing Co. v. City of New York, 350

N.E.2d 381 (N.Y.), cert. denied and appeal

dismissed, 429 U.S. 990 (1976) .. 2... 6. ee ee. 15

Garneau v. City of Seattle, 1998 WL 214579 (9th Cir.

EAE Rs ee. ee ee 5

Goldblatt v. Hempstead, 396 U.S. $90 (1962) ....... 17

Harmelin v. Michigan, 501 U.S. 957 (1991)... ..... Q

Hawaii Housing Authority v. Midkiff, 467 U.S. 229

NE rae ee 11

Table of Authorities (continued)

Page

Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

I sei wie bate COL mirage) sel 15

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480

ee ET ns 6 wc bese Ubon accueil ewe 12

Loretto v. Teleprompter Manhattan CATV Corp., 458

es EE da at's 0 Ge eilwalcd don eetns 3

Loveladies Harbor v. United States, 15 Cl. Ct. 381

(1988), aff'd, 28 F.3d 1171 (Fed. Cir. 1994)... . . 20

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

SE SS oe 3 Ake as bas Che ee eck 7,9

McCarthy v. City of Leawood, 894 P.2d 836 (Kan.

xk vee dodtr Ss das owed as Pid ie 5

Mission Springs, Inc. v. Feature Realty, Inc., 1998 WL

EE SEED wi o's 4 os aides oh 21

Missouri & Pacific Railway Co. v. Nebraska, 164 U.S.

SE Gina S562 < 0s asia See dwar 12, 16

Nectow v. City of Cambridge, 277 U.S. 183 (1928) . 16, 17

New Port Largo, Inc. v. Monroe County, 95 F.3d 1084

(llth Cir. 1996) cert. denied, 117 S.Ct. 2514

Se rn eer as ed ee RS 4

Nollan v. California Coastal Commission, 483 U.S. 825

ET re ee ee eee passim

Oyama v. California, 332 U.S. 633 (1948) ......... 15

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

0 ee Se eer ee Pe re ere. 9.17

IV

Table of Authorities (continued)

Page

Pennell v. City of San Jose, 485 U.S. 1 (1988) ...... 19

Pennsylvania Coal Co v. Mahon, 260 U.S. 393 (1922). 11

Preseault v. ICC, 494 U.S. 1 (1990) ............. 12

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ... 11

San Diego Gas & Electric Co. v. City of San Diego, 450

ee ED 3's | owned ole baat 10, 13

Steinbergh v. City of Cambridge, 604 N.E.2d 1269

lo hie es iar as ee ae ae 21

Tampa-Hillsborough County Expressway Authority v.

A.G.W.S. Corp. , 640 So. 2d 541 (Fla. 1994) .. 9, 21

Thompson v. Consolidated Gas Corp., 300 U.S. 55

RR GEG PY SRR ARS nae ee 12

United States v. Riverside Bayview Homes, Inc., 474

ay GR ED : 0:0: bck wh ae Rew ee 9.11

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

are dee RA a ey tee 16, 17

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985)... ....... 15

MISCELLANEOUS

Bley, Kenneth, Substantive Due Process and Land Use:

The Alternative to a Takings Claim, in Takings:

Land-Development Conditions and Regulatory

Takings After Dolan and Lucas (1996) ......... 16

Vv

Table of Authorities (continued)

Page

Hart, John F., Colonial Land Use Law and its

Significance for Modern Takings Doctrine, 109

te a Ce Eo 0 odes wowvpeess* 9

Kayden, Jerold, Land Use Regulations, Rationality, and

Judicial Review: The RSVP in the Nollan Invitation,

23 Urban Lawyer 301 (1991) ............... 16

Laitos, Jan G., The Public Use Paradox and the Takings

Clause, 13 J. Energy Nat. Res. & Envtl. L. 9 (1993). 12

Treanor, William Michael, The Original Understanding

of the Takings Clause and the Political Process, 95

Columbia L. Rev. 782 (1995)............... 9

. a A

a

eR i

STATEMENT OF INTEREST

The amici curiae — League for Coastal Protection,

Planning and Conservation League, Center for Marine

Conservation, Chesapeake Bay Foundation, National Trust for

Historic Preservation, National Wildlife Federation, and

Sierra Club — are organizations dedicated to the wise use and

conservation of natural and cultural resources and therefore

support reasonable government regulation of land use to

protect the public interest. The amici have a substantial

interest in this case because the court of appeals adopted a

standard for identifying a taking under the Takings Clause

which contradicts the language and original understanding of

the Clause, is inconsistent with the principles established by

the Court’s prior takings decisions, and would impose new

financial liabilities on governments at all levels. This

expansion of liability under the Takings Clause would not

only increase the financial burdens on taxpayers, but also

would undermine the ability of democratically elected officials

to resolve important, complex issues in as fair and balanced

a fashion as possible.

This amicus brief focuses on two issues: First, whether

the court of appeals erred by attempting to defend the

judgment by relying on the Court’s decision in Dolan v. City

of Tigard, 512 U.S. 374 (1994). Second, whether the court

of appeals erred by concluding that an analysis of whether the

City’s action furthered a legitimate government purpose was

relevant, not simply to the due process claim in this case, but

” Counsel for the parties have consented to the filing of this amicus

brief, and the letters of consent are being filed with the Clerk

simultaneously with the filing of this brief. No counsel for a party in this

case authored this brief in whole or in part, and no person or entity, other

than amici or their counsel, made a monetary contribution to this brief’s

preparation or submission. See Supreme Court Rule. 37.

2

to the claim that the City effected a compensable taking under

the Fifth Amendment.

SUMMARY OF ARGUMENT

The court of appeals erred by relying on Dolan v. City of

Tigard, 512 U.S. 374 (1994), which is irrelevant to this case.

Dolan establishes a special test for reviewing physical

invasions of private property effected through permit

conditions attached to discretionary permits. This case, on the

other hand, involves a takings challenge to a city’s restrictions

on permissible land uses.

The court of appeals also erred by concluding that an

evaluation of whether a government action furthers a

legitimate public purpose provides an appropriate test for

determining whether a government restriction on land use

effects a compensable taking. Including a means-ends test as

a general component of takings analysis would conflict with

the language of the Takings Clause, the original understanding

of the Clause, basic principles supporting the Court's takings

jurisprudence, and several of the Court’s leading takings

precedents. While the Court has stated on several occasions

that a government action “effects a taking” if it “does not

substantially advance legitimate state interests,” Agins v. City

of Tiburon, 447 U.S. 255, 260 (1980), the Court has never

applied that test to find that ordinary land use restrictions

effect a taking. The Agins standard supports and is logically

related to the test developed in Dolan and Nollan v. California

Coastal Commission, 483 U.S. 825 (1987) for reviewing

physical invasions. But the Court should reject the position

that means-ends analysis provides an independent basis for

determining whether a land use restriction effects a taking

under the Takings Clause.

Ce ee ee

3 -

ARGUMENT

I. Detan Is Irrelevant to this Case Because the Dolan

Standard is Limited to Regulatory Conditions

Effecting a Permanent Physical Invasion of

Property, and the Land Use Regulation in This

Case Did Not Effect a Permanent Physical

Invasion.

The court of appeals erred by relying on the Court's

decision in Dolan v. City of Tigard, 512 U.S. 374 (1994), in

affirming the district court’s denial of the City’s motion for

judgment n.o.v. In fact, the jury was not given any

instructions which reflected this decision, which was not even

decided until after the jury entered its verdict. In any event,

the court of appeals was wrong to conclude that Dolan

provides an appropriate legal standard for determining

whether a limitation on the use of property, as opposed to a

regulation authorizing a physical invasion of private property,

effects a compensable taking.

De'an, and the Court's earlier decision in Nollan vy.

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

addressed regulatory permit conditions which effect a

permanent physical invasion of private property, and they

establish a special standard which is explained and justified

by, and logically confined to, that narrow context. In both

cases, the government imposed a condition requiring the

owner to grant public access to the property. Standing alone,

these requirements indisputably would have effected a taking

requiring payment of just compensation. Dolan, 512 U.S. at

384; Nollan, 483 U.S at 831. See generally Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426

(1982). The issue the Court faced in those cases was whether

a taking could be avoided because the requirements, rather

than being imposed as free-standing mandates, were attached

4

as conditions to discretionary permits which the government

had no constitutional obligation to grant.

The Court held that a finding of a taking could be

avoided, provided that the conditions were sufficiently closely

related to the legitimate purposes of the regulatory process

itself. More specifically, the Court ruled that attaching

otherwise unconstitutional conditions to regulatory permits

would not effect a taking if: (1) there was an essential

“nexus” between the conditions and the government's

regulatory purposes, Nollan, 483 U.S. at 837, and (2) there

was a “rough proportionality” between what the owner

surrendered and the impacts of the proposed development,

Dolan, 512 U.S. at 391. Thus, Nollan and Dolan established

a special standard of takings analysis to address a special

situation. This standard does not apply to traditional

regulatory programs which do not involve conditions effecting

physical invasions, Dolan, 512 U.S. at 385; . -ollan, 483 U.S.

at 831, and which therefore are entitled to the usual deference

accorded local land use decision-making.

Consistent with the holdings and reasoning in Dolan and

Nollan, lower federal and state appellate courts have almost

uniformly read these decisions as being limited to the physical

exactions context. See, e.g., New Port Largo, Inc. v. Monroe

County, 95 F.3d 1084, 1088 (11th Cir. 1996), cert. denied,

117 S.Ct. 2514 (1997) (Dolan and Nollan irrelevant to

takings challenge where zoning ordinance “told [the owner]

how it could use the property. . ., but did nothing to require

{the owner] to open its property to the public for use just as

the public wished”); Clajon Production Corp. v. Petera, 70

F.3d 1566, 1578-79 (10th Cir. 1995) (“Nollan and Dolan are

best understood as extending the analysis of complete physical

occupation cases to those situations in which the government

achieves the same end (i.e., the possession of one’s physical

property) through a conditional permitting procedure”);

5

McCarthy v. City of Leawood, 894 P.2d 836 (Kan. 1995)

(Dolan applies only to regulations involving dedications of

land). Indeed, even within the Ninth Circuit itself, the court

of appeals’ decision is apparently aberrational. See

Commercial Builders v. City of Sacramento, 941 F.2d 872

(9th Cir. 1991), cert. denied, 504 U.S. 931 (1992) (“no

decisions have interpreted [Nollan] as changing the level of

scrutiny to be applied to regulations that do not constitute a

physical encroachment on land”); Garneau v. City of Seattle,

1998 WL 214579 (9th Cir. 1998) (Dolan analysis rests on

condition which effects per se physical occupation taking).

Here, in contrast to Dolan, the government action does

involve, in the Court’s words, “simply a limitation on the use”

respon’ .. could make of the property, Dolan, 512 U.S. at

38*, and not a condition effecting a physical occupation of

f erty. Therefore, Dolan (and Nollan) do not apply in this

case. The Court should vacate the decision of the court of

appeals for reconsideration of the City’s appeal based on a

proper legal standard.’

' Apart from the fact that the holdings and logic of Dolan and Noilan

do not apply in this case, it also is impossible as a practical matter, as the

court of appeals’ somewhat tortured analysis illustrates, to apply the

“essential nexus” and “rough proportionality” standards developed in those

cases to this type of regulatory action. The “nexus” test first announced

in Nollan focuses on whether a condition serves the same objective as

would an outright regulatory denial; the “rough proportionality” test

focuses on whether the extent of a condition is proportional to the impacts

of development mitigated by the imposition of the condition. Both of

these tests represent meaningful judicial standards in the context of

exaction conditions. On the other hand, these tests cannot sensibly be

applied in a case involving the outright denial of a regulatory permit,

which would include no conditions for a court to analyze.

6

Il. Whether a Regulation Furthers a Legitimate

Government Purpose Raises a Threshold Issue

About the Regulation’s Validity, Not an Issue

Dispositive of Whether the Regulation Effects a

Taking Requiring Payment of Just Compensation.

The court of appeals incorrectly concluded that an

evaluation of the legitimacy of governmental ends, and the

reasonableness of the means selected to achieve those ends,

represents an independent test for all government regulation

in the land use area under the Takings Clause. This legal

error represents a second basis for reversing the decision of

the court of appeals.

The district court’s instructions, which the court of

appeals ratified, laid out this purported means-ends test at

some length. The trial court first instructed the jury that “one

of your jobs as jurors is to decide if the city’s decision here

substantially advanced . . . [a] legitimate public purpose.” 93

F.3d at 1429. The district court then instructed that “[t]he

regulatory actions of the city or any agency substantially

advance[ ] a legitimate public purpose if the action bears a

reasonable relationship to that objective.” Jd. Finally, the

court framed the ultimate question for the jury as follows:

“[I]f the preponderance of the evidence establishes that there

was no reasonable relationship between the city’s denial of the

. . . proposal and [a] legitimate public purpose, you should

find in favor of the plaintiff. If you find that there existed a

reasonable relationship between the city’s decision and a

legitimate public purpose, you should find in favor of the

city.” Id.

While the district court’s instructions offered varying

formulations of this purported standard, it is nonetheless clear

that these instructions framed an incorrect test for determining

whether a government action effects a compensable taking.

on ew ON Eee +) eee

7

To be sure, the Court has, on various occasions, suggested

that means-ends analysis plays a role in takings analysis.

Specifically, the Court has stated that a government action

“effects a taking” if it “does not substantially advance

legitimate state interests.” Agins v. City of Tiburon, 447 U.S.

255, 260 (1980). See, e.g., Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1016 (1992); Nollan v. California

Coastal Commission, 483 U.S. 825, 834 (1987) (citing

Agins). However, the Court has never applied this standard

to find a taking in a case such as this involving regulations

limiting the permissible uses of property. The Agins standard

supports and is logically related to the test the Court

developed in Nollan and Dolan for evaluating under the

Takings Clause conditions effecting a physical invasion. But,

as explained below, the Court should not extend the Agins

standard beyond that specialized context to circumstances

where it has no logical role.

The claim that a government action fails to advance —

whether “substantially” or “reasonably” — a legitimate

government purpose does potentially raise a viable

constitutional issue. But it does not represent a viable claim

of a compensable taking under the Takings Clause. It

represents a potential due process violation .”

Section A below discusses why means-ends analysis in a

takings compensation case would conflict with the language

> The trial court rejected the due process claim in this case and the

respondent did not appeal the resolution of that issue. That the means-ends

takings claim prevailed at trial simply reflects the fact that the court

resolved the mean-ends issue under the due process label and a jury was

(erroneously) assigned the task of resolving the same issue again under the

takings label, as well as the fact that the court of appeals (erroneously)

believed that the jury was not required to accord any deference whatsoever

to the conclusions and reasoning of the City.

8

of the Takings Clause, the original understanding of the

Clause, the basic principles the Court has identified as

underlying takings doctrine, and several of the Court s leading

takings precedents. Section B discusses the Agins

“substantially advance” standard and explains why this

standard should not be read to provide a test for identifying

compensable takings resulting from ordinary land use

regulations.

A. Means-Ends Analysis Is Not a Proper

Component of the Inquiry Whether A Land

Use Restriction Effects a Compensable

Taking.

Plain Language. A government action which fails to

advance a legitimate government purpose cannot, on that

basis, be found to effect a compensable taking for the simple

reason that such an action is not a taking “for public use”

within the plain meaning of the Takings Clause. Indeed, the

claim that a government action fails to serve a legitimate

public purpose contradicts the requirement for a lawful taking

that the action must serve a “public use.” Rather than

providing a basis for a taking claim, a government action that

does not serve a public use is already invalid under the Due

Process Clause.

This reading of the Takings Clause also is supported by

the important differemces in language between the Takings

Clause and the Due Process Clause. The Takings Clause in

the Fifth Amendment states that “private property [shall not]

be taken for public use, without just compensation,” while the

Due Process Clause in the Fifth and Fourteenth Amendments,

States that no person shall be “deprived” of “property, without

due process of law.” Given the difference in language, the

same means-ends claim which states a cause of action under

the Due Process Clause cannot logically state a cause of action

9

under the quite different language of the Takings Clause. See

Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991) (“When

two parts of a [constitutional amendment] use different

language to address the same or similar subject matter, a

difference in meaning is assumed.”).

Original Understanding. The application of a means-

ends test under the Takings Clause also conflicts with the

original understanding of the Clause. The Takings Clause was

originally intended to address direct appropriations of private

property. See Lucas v. South Carolina Coastal Council, 505

U.S. at 1014 (prior to the early 20th century, “it was

generally thought that the Takings Clause reached only a

‘direct appropriation’ of property . . ., or the functional

equivalent of a ‘practical ouster of [the owner's

possession.”’”); see also John F. Hart, Colonial Land Use Law

and its Significance for Modern Takings Doctrine, 109 Harv.

L. Rev 1252 (1996); William Michael Treanor, The Original

Understanding of the Takings Clause and the Political

Process, 95 Columbia L. Rev. 782 (1995). In deference to

the original understanding of the Takings Clause, the Court

has confined the Clause in the area of land use regulation to

those “extreme circumstances” where regulations impose

severe economic burdens analogous to direct physical

appropriations. United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 126 (1985). See Lucas v. South Carolina

Coastal Council, supra; Penn Central Transp. Co. v. City of

New York, 438 U.S. 104 (1978).

Application of the means-ends test, by contrast, would

extend the Takings Clause to circumstances where regulations

may have little or no adverse economic impact and bear no

similarity to the type of direct appropriations at the heart of

takings doctrine. Compare Tampa-Hillsborough County

Expressway Authority v. A.G.W.S. Corp., 640 So. 2d 54 (Fla.

1994) (rejecting means-ends takings test because it would

10

have supported claims for financial compensation when

economic injury was only nominal). This reading of the

Takings Clause would unhinge the Court's takings

jurisprudence from any plausible connection to the original

understanding of the Takings Clause. The conclusion that the

Takings Clause encompasses a means-end inquiry cannot be

Squared with the limited role of the judicial branch in

interpreting and enforcing the Constitution.”

Basic Takings Principles. The means-ends test also

conflicts with several general principles which the Court has

identified as supporting the Court’s takings jurisprudence.

First, the Takings Clause “bar[s] 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.” Armstrong v. United States, 364 U.S. 40. 49 (1960).

If a regulation advances a legitir.ate public purpose, “it is

axiomatic that the public receives a benefit while the

offending regulation is in effect.” San Diego Gas & Electric

Co. v. City of San Diego, 450 U.S. 621, 656 (1981)

(Brennan, J., dissenting). The Court has ruled. under that

* In keeping with the traditional view that a regulatory taking must

be closely akin to a direct physical Occupation, the Court in First English

Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987), stated that when a regulation is found to effect a taking, “the

government retains the whole range of options already available —

amendment of the regulation, withdrawal of the invalidated regulation, or

exercise of eminent domain.” /d. at 321. Exercise of eminent domain 1s

a logical option in the case of a regulation, as in First English, which

allegedly denies the owner “all use” of the property. /d. at 308. But an

exercise of the power of eminent domain makes no sense in response to a

determination that a regulation fails to advance a legitimate governmental

Purpose, because the government would not be legally authorized to take

the property. The Firsr English Court obviously did not conceive that a

taking could be established by demonstrating that the government action

was invalid. See p.12, infra.

ll

circumstance, that it is “fair” for the public to pay just

compensation. On the other hand, the claim that a

government action fails to advance a legitimate public purpose

demonstrates no public benefit for which the public can fairly

be asked to pay.

This conclusion also is consistent with the principle that

the Takings Clause is not a substantive limitation on

government power, but simply a condition on the exercise of

government power. As the Court has frequently stated, the

Takings Clause “does not prohibit the taking of private

property, but instead places a condition on the exercise of that

power.” First English Evangelical Lutheran Church vy.

County of Los Angeles, 482 U.S. 304, 314 (1987). See also

United States v. Riverside Bayview Homes, Inc.. 474 U.S.

121, 127-28 (1985); Ruckelshaus v. Monsanto Co.. 467 U.S.

986, 1016 (1984). “The protection of private property in the

Fifth Amendment presupposes that it is wanted for public use,

but provides that it shall not be taken for such use without just

compensation.” Pennsylvania Coal Co v. Mahon. 260 U.S.

393 (1922) (emphasis added). Accordingly, in Mahon, for

example, the Court did not closely examine whether the

Kohler Act reasonably implemented legitimate public

purposes, but simply “assume[d] . . . that the statute was

passed upon the conviction that an exigency existed that

would warrant it.” Jd. at 416. “{T}he question at bottom”

under the Takings Clause, the Court continued “is upon

whom the loss of the changes desired should fall.” Jd.

Leading Precedents. The means-ends test also conflicts

with the holdings and reasoning of some of the Court's

leading takings precedents. In Hawaii Housing Authority v.

Midkiff, 467 U.S. 229 (1984), a challenge to the legitimacy of

an exercise of the power of eminent domain accompanied by

payment of compensation, the Court held that the Takings

Clause prohibits a taking not for a “public use,” whether just

12

compensation is paid or not. Resolution of the issue whether

a government action meets the “public use” requirement

depends upon whether “the legislature’s purpose is

legitimate,” and whether “its means are not irrational,” id. at

242-43. This is the same standard that the Court uses to

determine whether an action is valid under the Due Process

Clause. See id. at 241, discussing Missouri Pacific Railway

Co. v. Nebraska, 164 U.S. 403, 416 (1896), and Thompson

v. Consolidated Gas Utilities Corp., 300 U.S. 55, 80 (1937)

(both due process cases).

Thus, under Midkiff, a means-ends analysis determines

whether or not a government action is within the scope of

governmental authority to begin with, regardless of whether

compensation is paid. The same analysis logically cannot

provide the test for determining whether a government action

demands compensation pursuant to the Takings Clause.

Indeed, the test applied by the court of appeals would turn

Midkiff on its head. See Jan G. Laitos, The Public Use

Paradox and the Takings Clause, 13 J. Energy Nat. Res &

Envtl. L. 9, 33 (1993) (discussing conflict between purported

means-ends takings test and Midkiff). See also Keystone

Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 511

(1987) (Rehnquist, C.J. dissenting) (fact that regulation serves

public purpose “does not resolve the question whether a taking

has occurred; the existence of such a public purpose is merely

a necessary prerequisite to the government's exercise of its

taking power”) (emphasis added).

The means-ends test under the Takings Clause also would

conflict with the Court’s decision in First English. As Chief

Justice Rehnquist explained in that case, the Takings Clause

“is designed . . . to secure compensation in the event of

otherwise proper interference amounting to a taking.” 482

U.S. at 315 (second emphasis added). See also Preseault v.

ICC, 494 U.S. 1, 11 (1990) (quoting First English). A

- ad a

13

government action which fails to advance a legitimate

government interest does not result in a compensable taking

because it is not an “otherwise proper” government action. A

regulation which is “improper” in the nominal sense that it

effects a taking without providing just compensation is, of

course, subject to challenge under the Takings Clause.

However, according to First English, the Takings Clause does

not provide just compensation unless the challenged action is

“otherwise proper,” that is, not unlawful on some other basis,

such as the Due Process Clause.

Of course, the Court’s decision in First English

definitively disposed of the argument that regulations which

eliminate a property’s economic value can never effect a

compensable taking and instead represent only invalid

exercises of government power under the Due Process Clause.

See First English, 482 U.S. at 314; see also San Diego Gas

& Electric Co. v. City of San Diego, 450 U.S. 621, 649 n.14

(1981) (Brennan, J., dissenting) (discussed with approval in

First English). At the same time, the First English decision

provides no support for the quite different position, which the

Court has never embraced, that a regulation which violates the

Due Process Clause necessarily results in a taking requiring

the payment of just compensation. The Court’s statement in

First English that recovery of just compensation is limited to

government actions which are “otherwise proper” refutes this

position.

Indeed, even Justice Brennan, who championed the view

that the Takings Clause mandates compensation for regulatory

takings, distinguished a claim that a valid government action

effects a compensable taking from the “different case . . .

where a police power regulation is not enacted in furtherance

of the public health, safety, morals, or general welfare so that

there may be no ‘public use.”” See San Diego Gas & Electric

Co. v. City of San Diego, 450 U.S. at 656 n.23. Speaking

14

for himself and three other Justices, Justice Brennan

observed, “the government entity may not be forced [in that

case] to pay just compensation under the Fifth Amendment,”

but the landowner might “nevertheless have a damage cause

of action under 42 U.S.C. § 1983 for a Fourteenth

Amendment due process violation.” Jd. Significantly, none

of the Justices in the majority, which concluded that the case

had to be dismissed for want of a final judgment, disputed

Justice Brennan’s view that regulations which do not further

a legitimate public purpose cannot be compensable takings

under the Takings Clause. See San Diego, 450 U.S. at 632-

33 (Rehnquist, J., concurring) (stating that he “would have

little difficulty in agreeing with much of what is said in the

dissenting opinion of Justice Brennan”).

B. Agins Should Not Be Read to Support the

Conclusion that Means-Ends Anaiysis Is a

Free-standing Test for Determining Whether

a Restriction on Land Use Effects a Taking.

As stated above, the Court has on various occasions

stated that a regulation “effects a taking” if it “does not

substantially advance legitimate state interests.” Agins v. City

of Tiburon, 447 U.S. 255, 260 (1980). However, the Court

has never applied this standard to find a taking as a result of

regulation limiting the permissible uses of land. Agins, which

is most often cited as the origin of this purported test, does

not support the conclusion that, in general, a compensable

taking occurs when a government action fails to meet this

means-ends standard. While the Court relied on the Agins

standard to justify and explain the “essential nexus” test

developed in Nollan, neither Nollan nor the Court’s

subsequent decision in Dolan supports applying the Agins

standard outside of the physical invasion context.

15

Understood in historical context, the means-ends test in

Agins, a brief, unanimous decision upholding a zoning

ordinance, simply repeated the familiar principle that a

regulation which fails to advance a legitimate governmental

interest violates the Due Process Clause. The Agins opinion

is best understood as referring to a government action which

amounts to a due process violation and is therefore invalid,

rather than to a government action which effects a taking

requiring the payment of just compensation under the Takings

Clause. Prior to First English, the distinction between

“takings” and “due process” violations was far less clear than

itis today. Indeed, as discussed above, there was debate at

the time over whether regulations which “took” private

property by eliminating its economic value effected a taking

under the Takings Clause at all, or simply represented a due

process violation. See, e.g., Fred F. French Investing Co. v.

City of New York, 350 N.E.2d 381, 384-86 (N.Y.), cert.

denied and appeal dismissed, 429 U.S. 990 (1976)

(concluding that the word ‘taking’ was used in Mahon

‘metaphorically,’ and that the “gravamen of the constitutional

challenge to the regulatory measure was that it was an invalid

exercise of the police power under the due process clause, and

the [case was] decided under that rubric”). See also

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 197-200 (1985) (discussing

due process theory at length).

Indeed, prior to the Court’s clarification of the distinct

character of the constitutional protection afforded by the

Takings Clause, the Court frequently used the term “taking”

to refer to a due process violation as well. See, e.g., Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241, 244

(1964) (addressing allegations that government action effected

a “taking . . . of property without due process of law, and a

taking of . . . property without just compensation”); Oyama

16

v. California, 332 U.S. 633, 635-36 (1948) (addressing claim

that escheat action “takes property without due process of

law”); Missouri Pacific Railway Co. v. Nebraska, 164 U.S.

403, 416 (1896) (invalidating under the Due Process Clause

a “taking” of private property, when the “order in question

was not, and was not claimed to be, . . . a taking of private

property for public use under the right of eminent domain”).

The Agins Court’s use of the term “taking” to refer to what

was a due process issue was therefore consistent with

longstanding Court practice, and did not establish a new,

independent test under the Takings Clause.

That the Agins Court was referring to a due process

violation is confirmed by the precedent upon which the Court

relied to support this statement, Nectow v. City of Cambridge,

277 U.S. 183 (1928). See Agins, 447 U.S. at 260. Nectow

involved a constitutional challenge to a zoning regulation in

which the owner alleged that the restriction did “not bear a

substantial relation to the public health, safety, morals, or

general welfare.” Jd. at 188. As the Court’s opinion in

Nectow made abundantly clear, Nectow did not arise under the

Takings Clause, but rather involved a claim that the ordinance

“deprived [the owner] of his property without due process of

law in contravention of the Fourteenth Amendment.” Nectow,

277 U.S. at 183. Moreover, the page in the Nectow opinion

to which Agins refers quotes from Village of Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926), another land use due

process case. See also 447 U.S. at 261. Thus, the Court's

language in Agins clearly referred to a due process claim, not

a takings claim. See Jerold Kayden, Land Use Regulations,

Rationality, and Judicial Review: The RSVP in the Nollan

Invitation, 23 Urban Lawyer 301, 314-16 (1991); Kenneth

Bley, Substantive Due Process and Land Use: The Alternative

to a Takings Claim, in Takings: Land-Development Conditions

and Regulatory Takings After Dolan and Lucas 289, 291

17

(1996) (“the authority for the first prong of the Agins takings

test was no authority at all; it was a case based solely on the

due process clause”).

The Court also used somewhat similar language in Penn

Central Transp. Co. v. City of New York, 438 U.S. 104, 127

(1978) — “a use restriction may constitute a ‘taking’ if not

reasonably necessary to the effectuation of a substantial

government purpose” — which, it has been suggested, also

supports the notion of a general means-ends test under the

Takings Clause. However, again, it is apparent from the

context that the Court in Penn Central was simply restating

the due process standard. The authorities upon which the

Court relied to support this proposition included the Nectow

due process decision, and Goldblatt v. Hempstead, 396 U.S.

$90 (1962). While Goldblatt involved claims under both the

Takings and the Due Process Clauses, Penn Central's

reference to a means-ends standard draws upon Goldblatt’s

discussion of the due process claim in that case.

The Court’s different linguistic formulauons —

“substantially advance” (Agins), and “reasonably necessary to

the effectuation of a substantial government purpose” (Penn

Central) — could be read to articulate a means-ends standard

under the Takings Clause which is somehow more demanding

of government, and therefore distinct from traditional rational

basis review under the Due Process Claus . However, for

several different reasons, this potential argument must be

rejected.

First, while the Court’s verbal formulations have indeed

varied, it is nonetheless clear from the Court's citations to

Nectow, Euclid, and Goldblatt that the test in Agins (and in

Penn Central) was derived from and simply restated the

traditional due process test of an earlier era. It would be

illogical to conclude that takings doctrine incorporates a

18

general means-ends standard that is similar to but more

demanding than means-ends analysis under the Due Process

Clause, when even a cursory reading of the Court’s decisions

shows that all of these formulations have a common origin in

the Due Process Clause. Moreover, such an argument would

produce the anomalous result that, if government acts

rationally, but no more than rationally, to advance a

legitimate state interest, it effects a taking, but if government

acts less than rationally, there is no taking because the

government action would fail the “public use” requirement of

the Takings Clause.

Second, there is no plausible basis for believing that the

Takings Clause independently supports some type of means-

ends analysis, much less a type of means-ends analysis that

would be more rigorous than means-ends scrutiny under the

Due Process Clause. Certainly, this position gains no

discernible support from the language of the Takings Clause,

and it is refuted by the original understanding that the Takings

Clause was intended to focus on direct appropriations

imposing extreme economic burdens on individual owners.

While dictum in Nollan may be read to support a contrary

view, Nollan, 483 U.S. at 834 n. 3, neither Nollan, nor the

Court's later decision in Dolan, should be read to establish

that the Takings Clause incorporates a means-ends test

applicable to all governmental decision-making in the land use

area. As discussed in section I, those cases involved physical

invasions of private property. The decisions addressed

whether and under what circumstances such impositions could

be inoculated from a finding of a taking based on the fact that

the invasions were imposed as a condition attached to

discretionary permits. The Court concluded that a condition

effecting a physical invasion will not be deemed a taking if an

“essential nexus” exists and if the standard of “rough

proportionality” is satisfied. This test is obviously similar to

19

(but not the same as) the Agins formulation of the traditional

due process means-ends analysis. Thus, it was entirely

natural that the Court in Nollan referenced the means-ends

language from its earlier Agins opinion in framing the

“essential nexus” test. See 483 U.S. at 834.

But the Nollan/Dolan inquiry does not extend to a claim

under the Takings Clause based on a government action not

effecting a physical invasion of private property. As the

Court has noted time and time again, physical invasions

authorized by regulation remove an essential right of

ownership and thus should be scrutinized with the greatest

care to assure that such measures are not an indirect method

for taking private property without paying just compensation.

Nollan and Dolan do not stand for the proposition that special

scrutiny would be appropriate when reviewing all regulations

in the land use area. Given the specialized context in which

they apply, Nollan and Dolan do not establish that the

language in Agins represents a general test for evaluating

regulatory takings claims.*

The Court’s decision in Pennell v. City of San Jose, 485

U.S. 1 (1988), decided one year after the Court’s decision in

Nollan, also supports the conclusion that Agins does not

provide an independent test for all government regulations in

the land use area. In a 6-2 decision involving a rent control

law, the Court concluded that it would be premature to

consider “any takings claim, because there was no evidence

that the tenant hardship provision had ever been applied and

‘It also is noteworthy that both Dolan and Nollan apparently

involved claims seeking injunctive relief, which is ordinarily viewed as an

appropriate form of relief for a due process violation, but not for an

alleged taking. See First English, 482 U.S. at 314 (the Takings Clause

“does not prohibit the taking of private property, but instead places a

[compensation] condition on the exercise of that power”).

20

hearing officers in any event did not have to reduce proposed

rents.” /d. at 9-10. The dissent, relying on Agins, argued that

the plaintiff's basic contention — that “providing financial

assistance to impecunious renters is not a state interest that

can be legitimately furthered by regulating the use of

property" — did not depend on how the law was actually

applied, and therefore the claim was ripe for adjudication. Jd.

at 18-19. The majority’s rejection of this argument

necessarily presupposed that the Agins means-ends language

did not provide a general test for determining whether land

use regulations effect a taking.

Not surprisingly, the overwhelming majority of lower

federal and state courts that have addressed the issue has

rejected the suggestion that the Agins language can sensibly be

read to establish a free-standing test for a compensable taking.

The federal courts with specialized jurisdiction to hear claims

under the Takings Clause, in particular, have been absolutely

clear on this point. Eight years after the Court’s Agins

decision, Chief Judge Loren Smith of the U.S. Court of

Federal Claims rejected the suggestion that means-ends

scrutiny provided an independent basis for finding a taking,

Stating that “no court has ever found a taking has occurred

solely because a legitimate state interest was not substantially

advanced.” Loveladies Harbor v. United States, 15 C1. Ct.

381, 390 (1988), aff'd, 28 F.3d 1171 (Fed. Cir. 1994)

(emphasis added). So far as we aware, no subsequent

decision of the Court of Federal Claims or the Court of

Appeals for the Federal Circuit has held that a compensable

taking can be established on this basis.

Likewise, the overwhelming majority of state courts has

rejected the suggestion that the Agins language creates a free-

standing takings test. For example, last year the Rhode Island

Supreme Court, in Brunelle v. Town of South Kingston, 700

A.2d 1075, 1083 (R.I. 1997), explicitly overruled the trial

21

court’s erroneous conclusion that “a regulatory taking can be

compensable if the ordinance in question does not

substantially advance any legitimate state interest,” stating that

“a discussion of the arbitrariness or capriciousness of a

particular state action is properly examined under the light of

the Fourteenth Amendment due process clause and not the

Fifth Amendment takings clause.” See also Mission Springs,

Inc. v. Feature Realty, Inc., 1998 WL 195977 (Wash. 1998)

(city’s allegedly “arbitrary” and “illegal” denial of permit

stated a claim under the due process clause, not the takings

clause); Tampa-Hillsborough County Expressway Authority v.

A.G.W.S. Corp., 60 So. 2d 541 (Fla. 1994) (rejecting prior

court of appeals decision which relied on Agins); cf.

Steinbergh v. City of Cambridge, 604 N.E.2d 1269, 1276

n.10 (Mass. 1992) (reciting Agins language as independent

takings test, but nonetheless concluding that illegality of

government action, standing alone, does not demonstrate a

compensable taking).

CONCLUSION

For the foregoing reasons, the Court should reverse the

decision of the U.S. Court of Appeals for the Ninth Circuit in

this case.

Respectfully submitted,

JOHN D. ECHEVERRIA

ENVIRONMENTAL POLICY PROJECT

GEORGETOWN UNIVERSITY LAW CENTER

600 New Jersey Avenue, N.W

Washington, D.C. 20001

(202) 662-9850

Counsel of Record for Amici Curiae

June 4, 1998