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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 687

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A10. Public record. Not legal advice.