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

IN THE

Supreme Court of the United

OCTOBER TERM, 1997

CITY OF MONTEREY,

. Petitioner,

Det MONTE DUNES AT MONTEREY, LTD. AND

MONTEREY-DEL MONTE DUNES CORPORATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE

AMERICAN PLANNING ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

ROBERT H. FREILICH *

KYLE E. FOOTE

RICHARD J. ANSSON, JR.

(Of Counsel)

FREILICH, LEITNER, & CARLISLE,

1000 Plaza West, 4600 Madison

Kansas City, Missouri 64112

(816) 561-4414

TERRY D. MORGAN

DAVID G. RICHARDSON

TERRY D. MORGAN & ASSOCIATES

Thanksgiving Tower

Suite 1930

1601 Elm Street

Dallas, Texas 75201

(214) 740-9944

* Counsel of Record

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

o> \

QUESTION PRESENTED

“Can the reasonable proportionality standard established

by Dolan v. Tigard, 512 U.S. 374 (1994), in the context

of property exactions properly be applied to an inverse

condemnation claim based upon regulatory denial?”

(i)

TABLE OF CONTENTS

QUESTION PRESENTED u020............-ccccccesseceeseesseesesees

TABLE OF AUTHORITIES. ..................cccsscseseecsoseeeereseess

STATEMENT OF INTEREST OF AMICUS CURIAE..

a

SUMMARY OF ARGUMENT 0200.20 ceeceeeeee

GEE censnessmmmennnsecipemenmannan

I,

Il.

ITT.

THIS COURT HAS NEVER APPLIED AN

INTERMEDIATE STANDARD OF HEIGHT-

ENED SCRUTINY TO INVERSE CONDEM-

NATION CLAIMS BASED SOLELY ON AN

ES

B. Title or Exaction Takings .........

i

THIS COURT HAS ADOPTED AN INTER-

MEDIATE STANDARD OF HEIGHTENED

SCRUTINY SOLELY FOR THE NARROW

CATEGORICAL EXCEPTIONS OF TITLE OR

EXACTION TAKES AND THE LOWER

COURTS HAVE USED THE ROUGH PRO-

PORTIONALITY TEST SIMILARLY SOLELY

FOR TITLE OR EXACTION TAKES AND

NOT FOR ECONOMIC TAKING CLAIMS...

THE COURT OF APPEALS ERRONEOUSLY

APPLIED THE DOLAN ROUGH PROPOR-

TIONALITY TEST TO INVERSE CONDEM-

NATION CLAIMS BASED ON ECC NOMIC

OTEED cisteccutitcaintuiitcinntnipiincctipanmipibiaiitn nedtemeniliien

ll

15

iv

TABLE OF CONTENTS—Continued

A. Supreme Court Precedent .......................-..--------

B. If Dolan Applies To Economic Takings,

Lochner Substantive Due Process Will Be

Resurrected To the Substantial Detriment

of the Public Health, Safety and Welfare......

CONCLUSION ........... -asetitannnesienetnenntsanessstmnesentinninenatinanns

Vv

TABLE OF AUTHORITIES

CASES Page

Agins v. City of Tiburon, 447 U.S. 255 (1980)... 3, 7, 11,

18, 21

Allingham v. City of Seattle, 749 P.2d 160 (Wash.

RE SO Le ee ae 10

Anderson v. Dunn, 19 U.S. 204 (1821) lla ital aii 23

Arcadia Development Corp. v. City of Blooming-

ton, 552 N.W.2d 281 (Minn. Ct. App. 1996) _.. 17

Associated Home Builders of The Greater East

Bay, Inc. v. Livermore, 557 P.2d 473 (Cal.

REE AS aE ene el 21

Berman v. Parker, 348 U.S. 26 (1954) 00. 11

Bituminous Materials, Inc. v. Rice County, Minne-

sota, 126 F.3d 1068 (8th Cir. 1997) 000. 19

Chesterfield Development Corp. v. City of Chester-

field, 963 F.2d 1102 (8th Cir. 1992) 0000000000. 19

City of College Station v. Turtle Rock Corp., 680

S.W.2d 802 (Tex. 1984) .. 9

City of Eastlake v. Forest City Enterprises, Ine. a

I em 22

City of Renton v. Playtime Theatres, Inc., 475 U.S.

Ce a ae 22

City of Virginia Beach v. Virginia Beach Land

Inv. Ass'n No. 1, 389 S.E.2d 312 (Va. 1990)...... 13

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

I I ni i a 4, 15, 16

Concrete Pipe and Products, Inc. v. Construction

Laborers Pension Trust, 508 U.S. 602 (1993)... 11, 12,

14, 19

De Botton v. Marple Township, 689 F.Supp. 477

I I aia hin catarrhalis ee 13

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

Monterey, 95 F.3d 1422 (9th Cir. 1996), cert.

granted, 66 U.S.L.W. 3509 (U.S. March 30,

ES ee ee 1

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

Monterey, 920 F.2d 1496 (9th Cir. 1990) ... 18

Dolan v. City of Tigard, 512 U.S. 374 (1994) ___i, 2, 7, 8,

12, 17, 24

Eide v. Sarasota County, 908 F.2d 716 (11th Cir.

SUED ceciacitnnchasediiadeaneeilieettsidletiintipmeesiunsiiiansstsinsine iti tiida” 10

vi.

TABLE OF AUTHORITIES—Continued

Equal Employment Opportunity Commission v.

Wyoming, 460 U.S. 226 (1982) .............................

Fauz-Burhans v. Board of County Commissioners,

674 F.Supp. 1172 (D.Md. 1987), aff'd, 859 F.2d

149 (4th Cir. 1988), cert. denied, 488 U.S. 1042

Page

eS ee een 13

FCC v. Beach Communications, Inc., 508 U.S. 307

CED cercncesitiintmesintilinmnapeeniememanusinineuemmetpantipimasids 4,19

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)...... 14

Haas & Co. v. City and County of San Francisco,

605 F.2d 1117 (9th Cir. 1979), cert. denied, 445

U.S. 928, reh’g denied, 446 U.S. 929 (1980) ........ 14

Hadacheck v. Sebastian, 239 U.S. 394 (1915)........ 14

Haviland v. Land Conservation and Development

Commission, 609 P.2d 423 (Or. 1980) ............... 20

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

ea 3, 11, 19

Herrington v. County of Sonoma, 834 F.2d 1488

(9th Cir. 1987), cert. denied, 489 U.S. 1090

(1989), modified, 857 F.2d 567 (9th Cir. 1987).. 14

Hodel v. Irving, 481 U.S. 704 (1987) ...................... 12

Kaiser Aetna v. United States, 444 U.S. 164

EETTIED scrsissrencenscnescesnsessiniiinaniatitasinitliiecaiiamsannaisicadnatinaliaiats 6,7

Keystone Bituminous Coal Association v. DeBene-

dictis, 480 U.S. 470 (1987) ..............-.--------00--0--0---- 13

Lochner v. New York, 198 U.S. 45 (1905) —............ 19

Loretto v. Teleprompter Manhattan CATV Corpo-

ration, 458 U.S. 419 (1982) .................................. 3, 6,7

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

ff a ee ee 7, 12,13

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

1084 (llth Cir. 1996), cert. denied, 117 S. Ct.

| SE eee: oe 4, 15

Nollan v. California Coastal Comm’n, 483 U.S. 825

EE EE Se ene 4, 7, 8, 10, 12

Pace Resources, Inc. v. Shrewsbury Township, 808

F.2d 1023 (3d Cir. 1987), cert. denied, 482 U.S.

906, reh’g denied, 483 U.S. 1040 (1987) ............ 14

vii

TABLE OF AUTHORITIES—Continued

Page

Palm Beach County v. Wright, 641 So.2d 50 (Fla.

STR ARE eh oS CIS 2.5 Vee: 21

Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th

BAT I OMS Fs AES Ma 19

Penn Central Transportation Co. v. New York

City, 438 U.S. 104 (1978), reh’g denied, 439 U.S.

IE Re a ee 4, 6, 8, 12, 13, 21

Pennell v. City of San Jose, 485 U.S. 1 (1988)...... 12

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

RCI Tea ATS PE oa Eee 5, 19

Pringle v. City of Wichita, 917 P.2d 1351 (Kan.

FE Ae NINES Peres 17

Presbytery v. King County, 787 P.2d 907 (Wash.

1990), cert. denied, 498 U.S. 911 (1990)... 10

Roth v. United States, 354 U.S. 476 (1956) ....... 23

Schenck v. City of Hudson, 114 F.3d 590 (6th Cir.

BRST Se SE eh a SaaS sc 19

Sierra Club v. Hayward, 623 P.2d 180 (Cal. 1981) .. 21

Simpson v. City of North Platte, 292 N.W.2d 297

(Neb. 1980) ...... SEER IETS. 2 CK TEs «A RCa ee RL Oe )

Southern Burlington County N.A.A.C.P. v. Mount

Laurel Township, 456 A.2d 390 (N.J. 1983)... 21

Sparks v. Douglas County, 904 P.2d 738 (Wash.

RES SE ee Se tS ees Sere ee 3

Springer, Grubb, & Associates v. . City of Hailey,

903 P.2d 741 (Idaho 1995) eee. 16

State v. Miami Beach Redevelopment Agency, 392

So.2d 876 (Fla. 1980) 2.002 21

Terminals Equipment Co. v. City and County of

San Francisco, 221 Cal. App. 3rd 234, 270 Cal.

Rptr. 329 (Cal. App. 1990) ...... RESIS Sve ae een 13

Village of Belle Terre v. Boraas, 416 U.S. 1

TIERS NS a Ia IR CORB SH Ps SEO Sn 22

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

LE RET TS eg ie eat AA RS are eset 14, 20

Villas of Lake Jackson, Ltd. v. Leon County, 121

F.3d 610 (11th Cir. 1997)... iin aoe

Young v. American Mini Theatres, Inc., 427 U.S.

RRC AS BAe IR En Nee 22

viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Daniel R. Mandelker, Jnvestment-Backed Expecta-

tions in Taking Law, 27 Urb. Law. 215 (1995) ..

Thomas E. Roberts, Karen E. Milner and Robert

I. McMurry, Land Use Litigation: Doctrinal

Confusion Under The Fourteenth and Fifth

Amendments, 28 Urb. Law. 765 (1996) ...............

Robert H. Freilich & Elizabeth A. Garvin, Takings

After Lucas: Growth Management, Planning,

And Regulatory Implementation Will Work Bet-

ter Than Before, 22 Stetson L. Rev. 409 (1993)..

Joint Economic Committee of the United States

Congress, Hard Choices: Summary Report of

the National Infrastructure Study (1984) .........

Nancy A. Rutledge, Report of President Reagan's

National Council on Public Works Improvement,

Volume 11, “Public Infrastructure, A National

EES EE: SESS a SO On Oe

Arthur C. Nelson, Development Impact Fees: The

Next Generation, 26 Urb. Law. 541 (1994)........

Franklin J. James, Evaluation of Local Impact

Fees As A Source of Infrastructure Finance, 11

Municipal Finance J. 408 (1990) ........0000000.........

Jonathan M. Block, Limiting The Use of Height-

ened Scrutiny To Exaction Cases, 71 N.Y.U.

BT Se

Henry M. Hart, The Relations Between State and

Federal Law, 54 Colum. L. Rev. 489 (1954) ........

H. Doc. No. 91-84 (91st Congress), National Com-

mission on Urban Problems (“Douglas Com-

mission Report”), Building The American City

GTI saiiieaicnsicerictinapeneriiintactpialinntaatscastmetiniieieiaastintazess

Advisory Commission on Intergovernmental Re-

lations, Urban and Rural America: Policies for

Future Growth (1968) ..................ccccccceeeeneeeeseeeeeess

Secretary of Housing and Urban Development,

1980 President’s National Urban Policy Report

EE IIT RE IT a AE ae aE FPN aN oe

Page

3, 6,8

20

In THE

Supreme Court of the United States

OcTOBER TERM, 1997

No. 97-1235

CITY OF MONTEREY,

. Petitioner,

Det Monte DuNEsS aT MONTEREY, LTD. AND

MONTEREY-DEL MonTE DUNES CORPORATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE

AMERICAN PLANNING ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMICUS CURIAE

The American Planning Association (APA) is a private

nonprofit educational research organization incorporated

in the District of Columbia. The APA’s purposes and ob-

jectives include the advancement of physical, economic,

and social planning at local, state, and national levels.

APA is the oldest and largest organization in the United

States devoted to fostering liveable communities through

effective comprehensive planning. The 30,000 members

belonging to APA work in local government, federal and

State agencies, private consulting firms, and universities.

The APA has forty-six chapters representing all fifty

states, including a California chapter. More than 4,200

2

of APA’s members reside in California. Members of APA

are routinely involved in comprehensive planning and its

implementation with regulations dealing with land-use

related resources.

Since the 1980's, the APA Board of Directors and its

Delegate Assembly composed of State Chapter Presidents

have periodically adopted policy guides on matters of

national importance to planning and the planning pro-

fession. In 1995, APA adopted a policy guide on con-

stitutional takings challenges in the context of land-use

regulations designed to implement comprehensive plans.

In this policy guide, APA supports the evolving takings

law in this country that clearly balances protecting the

public health, safety and welfare with protecting property

rights. A major concern of APA, however, expressed in

the policy guide is that placing this balance at risk by

expanding constitutional takings law can impose severe

penalties on the majority of our nation’s citizens.

INTRODUCTION

All Parties have provided written consent regarding the

American Planning Association’s' filing of this amicus

curiae brief. This Amicus Curiae Brief is confined to the

following question certified by this Court in accepting the

petition for certiorari: *

(3) “Can the reasonable proportionality standard es-

tablished by Dolan v. City of Tigard, 512 US. 374

(1994) in the context of property exactions properly be

1 The American Planning Association and its counsel authored

this amicus curiae brief. None of the parties, nor any other entity,

contributed in any way to this brief. In addition, the American

Planning Association, alone, made the monetary contributions neces-

sary for the preparation and submission of the brief. This infor-

mation is provided in accordance with Supreme Court Rule 37.6.

2 Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d

1422 (9th Cir. 1996), cert. granted, 66 U.S.L.W. 3509 (U.S. March

30, 1998) ( No. 92-212).

3

applied to an inverse condemnation action based upon

regulatory denial?”

The American Planning Association firmly believes that

the answer is “No.”

SUMMARY OF ARGUMENT

Three types of “regulatory takings” claims have been

recognized by this Court: (1) a physical invasion (Loretto

v. Teleprompter Manhattan CATV Corporation, 458 U.S.

419 (1982); (2) a title dedication or exaction claim in

which a property owner is compelled as a condition of

development approval to convey specific property or title

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

(3) a general economic taking in which regulation re-

stricts all or substantially all of the use of property. Robert

H. Freilich and Elizabeth A. Garvin, Takings After Lucas:

Growth Management, Planning and Regulatory Implemen-

tation Will Work Better Than Before, 22 Stetson L. Rev.

409, 411 (1993).

Economic takings, as distinguished from physical or

title takes, constitute the vast majority of inverse con-

demnation claims based on regulatory takings and the rule

adopted by this Court in Agins v. City of Tiburon, 447

U.S. 255 (1980), stating that a land-use regulation does

not effect a taking if it “substantially advance[s] legitimate

state interests” and does not “den[y] an owner economi-

cally viable use of his land,” id. at 260, is the general rule

governing all regulatory takings and is based upon the

rational basis test. The higher scrutiny test, rough pro-

portionality, applies only to the narrow categorical excep-

tions spelled out in physical and title takes.

Since Dolan, state courts have applied the rough propor-

tionality test solely to title dedications or exactions. See,

e.g., Sparks v. Douglas County, 904 P.2d 738, 745-46

(Wash. 1995). Similarly, the federal courts of appeals

have steadfastly refused to apply this heightened level of

scrutiny to inverse condemnation claims based on an eco-

nomic taking and have declared that this intermediate

standard only applies to title dedication or exaction claims.

4

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’s rough proporitonality test

does not apply to county that rezoned landowner’s beach

front property from residential duplex use to private air-

port use); Clajon Production Corp. v. Petera, 70 F.3d

1566, 1578-79 (10th Cir. 1995) (Dolan’s rough propor-

tionality does not apply to state regulations that limit the

right to hunt surplus game on rancher’s property ).

In an economic taking case, hence in this case, the

scope of legitimate state interest is extremely broad and

challenged regulations will not be construed to effectuate

a taking as long as the governmental entity has rationally

concluded that “the health, safety, morals, or general wel-

fare” would be promoted by prohibiting particular con-

templated uses of land.” Penn Central Transportation Co.

v. New York City, 438 U.S. 104, 125 (1978). Thus: (1)

when “public purpose” is at issue this Court has held that

any “conceivable” public purpose will satisfy this test. (See

also F.C.C. v. Beach Communications Inc., 508 U.S. 307

(1993)) (any “conceivable” public purpose will satisfy

economic and social legislative action under constitutional

scrutiny); and (2) when the relationship between the pub-

lic purpose and the regulation is analyzed the Supreme

Court has continuously held that a regulation “substan-

tially advances” a legitimate state interest if the regulation

is rationally related to the public interest. Penn Central

Transportation Co. v. New York City, 438 U.S. at 125-

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

242 (1984).

In this case, the Ninth Circuit’s decision to apply the

rough proportionality test to an inverse condemnation

claim based on an economic taking appears to result from

a misreading of Nollan v. California Coastal Comm'n, 483

U.S. 825 (1987), that in a title dedication taking the gov-

ernment must demonstrate a rational nexus between the

purpose of the regulation and the title condition imposed.

Efforts to extend the Nollan/Dolan tests in these ways are

te OR ena Oe es

5

without authority, and, if affirmed, would overturn every

general economic taking case this Court has ever decided.

See Villas of Lake Jackson Ltd. v. Leon County, 121 F.3d

610 (11th Cir. 1997). It would cause governmental en-

tities to bear the burden of proving that each and every

individual standard contained in their planning and zoning

legislative policies were roughly proportional to the impact

of regulation upon the property affected. Imposition of

any such heightened standard would stifle governmental

entities’ police powers, thwart their ability to regulate pri-

vate property for the public good, and undermine their

ability to facilitate land-use planning. In essence, the

adoption of a heightened standard for inverse condemna-

tion claims based on an economic taking would give the

federal courts the responsibility to sit as the “super legisla-

tures” of the nation on local issues of land-use planning

and zoning—a concept at odds with our Constitution’s

respect for both federalism and separation of powers.

ARGUMENT

I. THIS COURT HAS NEVER APPLIED AN INTER-

MEDIATE STANDARD OF HEIGHTENED SCRU-

TINY TO INVERSE CONDEMNATION CLAIMS

BASED SOLELY ON AN ECONOMIC TAKING

If affirmed, the Ninth Circuit’s application of Dolan’s

rough proportionality standard to inverse condemnation

claims based on an economic taking (other than in the

narrow categorical, title or exaction takings) would yield

an outright assault on a governmental entity’s police

powers to plan and zone. Such a decision would under-

mine a governmental entity’s ability to effectively engage

in land-use planning and would jeopardize the health,

safety, morals, and general welfare of the community.

The Court recognized this in Pennsylvania Coal v. Mahon,

260 U.S. 393 (1922): “Government could hardly go on

if, to some extent, values incident to property could not

be diminished without paying for every such change in

the general law. As long recognized, some values are

6

enjoyed under an implied limitation, and must yield to

the police power.” 7d. at 413.

In Penn Central Transportation Co. v. New York City,

438 U.S. 104, 125 (1978), the court articulated a com-

prehensive test for analyzing inverse condemnation claims.

The Court stated that three factors should be considered

in identifying a regulatory taking: the economic impact

of the regulation on the claimant; the extent to which the

regulation has interfered with distinct investment-backed

expectations; and the character of the government action.

Id, at 124; See Daniel R. Mandelker, Investment-Backed

Expecations in Taking Law, 27 Urb. Law. 215 (1995).

The Penn Central Court further noted that a taking may

“more readily be found when the interference with the

property can be characterized as a physical invasion by

the government, than when interference arises from some

public program adjusting the benefits and burdens of eco-

nomic life to promote the common good.” /d.; See Thomas

E. Roberts, Karen E. Milner and Robert I. McMurry,

Land Use Litigation: Doctrinal Confusion Under The

Fourteenth Amendment and Fifth Amendment, 28 Urb.

Law. 765 (1996).

Since Penn Central, this Court has recognized three

types of regulatory takings—physical, title, and economic.

See Robert H. Freilich & Elizabeth A. Garvin, Takings

After Lucas: Growth Management, Planning, And Regu-

latory Implementation Will Work Better Than Before, 22

Stetson L. Rev. 409, 411 (1993). First, this Court has

determined that a physical invasion or a regulatory activity

that produces a physical invasion will sufficiently support

an action for inverse condemnation. See Kaiser Aetna v.

United States, 444 U.S. 164 (1979); Loretto v. Tele-

prompter Manhattan CATV Corp., 458 U.S. 419 (1982).

Second, this Court has found an inverse condemnation

claim to lie where a regulation imposes title dedication as

a condition of development approval without rational

nexus or rough proportionality to the need created by the

7

development. Nollan v. California Coastal Commission,

483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S.

374 (1994). Third, in economic regulatory taking cases,

this Court has long determined when a regulatory activity

fails to substantially advance a legitimate state interest or

denies a property owner all or substantially all economi-

cally viable use of an owner’s land, it will give rise to an

inverse condemnation claim. See Agins v. City of Tiburon,

447 U.S. 255, 260 (1980); Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992).

A. Physical Takings

A physical taking will be found when a governmental

entity physically invades private property regardless of the

extent of the diminution of the property value. In Kaiser

Aetna v. United States, 444 U.S. 164 (1979), a privately

owned pond was made accessible to navigable waters by

physical dredging, requiring public access to these navi-

gable waters. Id. at 175-76. The Court explained that

“{t}his is not a case in which the Government is exercising

its regulatory power in a manner that will cause a sub-

stantial devaluation of [the landowner]’s private property;

rather, the imposition of the navigational servitude in this

context will result in an actual physical invasion of the

privately owned marina.” /d. at 180.

Similarly, Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982), provided that any regulation

—regardless of the government’s interest—which author-

izes a permanent physical invasion of a landowner’s prop-

erty constitutes a taking. Jd. at 426. However, the Court

specifically noted that this per se taking rule does not

apply to “appropriate restrictions upon an owner’s use of

property.” Id. at 428, 441 (i.e. economic taking claims).

B. Title or Exaction Takings

Titie or exaction takes do not result in physical in-

vasion but result from government placing a title dedica-

tion, or a monetary exaction or payment in lieu of dedica-

tion. See Robert H. Freilich & Elizabeth A. Garvin, Tak-

ings After Lucas: Growth, Management, Planning, And

Regulatory Implementation Will Work Better Than Be-

fore, 22 Stetson L. Rev. 409, 414 (1993). (a title take

inquiry focuses solely where the government “acquires in-

cidents of ownership or title to the property or an exaction

in lieu of the dedication of land”).

These title dedications or exactions are the result of the

enormous national and local deficiencies in infrastructure

resulting from the failure of government to require that

new development pay its one-time fair share of capital

costs generated Ly the development. See Joint Economic

Committee of the United States Congress, Hard Choices:

Summary Report of the National Infrastructure Study

(1984); Nancy A. Rutledge, Report of President Regan's

National Council on Public Works Improvement, Volume

11, “Public Infrastructure, A National Concern” (recom-

mending “developer financing of offsite infrastructure in-

vestments”); Arthur C. Nelson, Development Impact Fees:

The Next Generation, 26 Urb. Law. 541 (1994); Franklin

J. James, Evaluation of Local Impact Fees As A Source

of Infrastructure Finance, 11 Municipal Finance J. 408,

411 (1990).

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

825 (1987), the Court required that in cases involving

permanent dedication of title, an “essential nexus” must

exist between the title condition imposed and the stated

police power objective of requiring development to meet

the needs created by the development. /d. at 837. Under

this test, the dedication must serve the same governmental

purpose as the regulation. Hence, the Court employed a

heightened level of scrutiny differentiating the ad hoc fac-

tual inquiry balancing test of an economic \ake as enunci-

ated in Penn Central.

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

Court addressed the question of a second nexus required

9

between the city’s permit conditions of title or exaction

and the projected impact caused by the proposed develop-

ment. /d. at 388. To evaluate this question, the Dolan

Court articulated a two-pronged test. First, as determined

in Nollan, there must exist an essential nexus between

legitimate state interests and the permit conditions. /d. at

386. Second, the exacation required by the permit condi-

tion must be roughly proportional to the projected impact

of the proposed development. /d. at 391. Under this

prong, the government bears the burden of proof and must

show that the dedication or exaction is roughly propor-

tional to the impact of the project. Jd. The Court in-

tended this two-prong test to function as a higher standard

of review. Finally, the Court noted that traditional land-

use planning tools such as dedications for streets, side-

walks and other public ways will generally be considered

reasonable exactions. /d. at 395.

The Dolan Court recognized that the reasonable rela-

tionship test imposed by the majority of state courts would

satisfy the dual nexus test. The Court found that the

majority of the state courts already used an intermediate

level of scrutiny in title or monetary exactions in lieu of

dedication, referencing, among others, City of College

Station v. Turtle Rock Corp., 680 S.W.2d 802, 807 (Tex.

1984); and Simpson v. City of North Platte, 292 N.W.2d

197, 301 (Neb. 1980).

Imposition of land dedicaiton or an exaction require-

ment differs significntly from application of general stand-

ards or conditions imposed on a development application.

Typically, a development application is subject to uniform

standards set forth in a municipality's comprehensive plan

or zoning. In virtually every land development situation,

the project must meet standards, such as height limita-

tions or set-back requirements. In lieu of denial of a proj-

ect, site specific additional conditions are frequently im-

posed (e.g. preserving the environmental integrity of the

10

subject property and surrounding land, or habitat restora-

tion).*

Compliance with standards and conditions always in-

volves some forbee7ance or performance on the part of the

landowner. Meeting a height, setback or rear yard limita-

tion on structures involves foregoing building to greater

area or elevation. Mitigating environmental effects may

require preservation of particularly sensitive lands and

restoring habitat on other land, as was required in this

case. Such collective limitations or requirements, however,

do not involve dedication of land to the public, but estab-

lish the net development potential for the property. See

Presbytery v. King County, 787 P.2d 907 (Wash. 1990),

cert. denied 498 U.S. 911 (1990) (overruling Allingham

v. City of Seattle, 749 P.2d 160 (Wash. 1988) that a rear

yard setback constituted a severable title take). Such

collective limitations form the basis of an economic taking

challenge, not a physical or title taking challenge.

Under the Ninth Circuit's rough proportionality test,

however, each and every standard or condition applied to

a development proposal is subject to an individual “sub-

stantially advances” taking challenge, rather than a chal-

lenge to the collective limits imposed by the regulations on

the exercise of property rights. A standard height limita-

tion might be challenged under the theory that it was not

“roughly proportional” to the “nature and extent” of the

proposed development. Municipalities would be faced

with the prospect of modifying or defending each and

every one of its regulatory standards on an ad hoc basis

for every development project in order to avoid rough

proportionality challenges.

3 Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987).

4 Note that the Eleventh Circuit in Villas of Lake Jackson, Utd.

v. Leon County, 121 F.3d 610 (11th Cir. 1997) has soundly rejected

the notion that there is a Nollan substantially advancing due proc-

ess taking challenge for mere economic regulation, overturning

Eide v. Sarasota County, 908 F.2d 716 (11th Cir. 1990).

il

C. Economic Takings

Economic takings, as distinguished from physical or

title takes, constitute the vast majority of inverse con-

demnation claims based on regulatory takings. In eco-

nomic taking claims, this Court, in Agins v. City of

Tiburon, 447 U.S. 255 (1980), stated that a land-use

regulation does not effect a taking it if “substantially ad-

vance[s] legitimate state interests” and does not “den[y]

an Owner economically viable use of his land.” Jd. at 260.

Economic takings have been reviewed with great defer-

ence by the Supreme Court, specifically when it comes to

what constitutes a state interest and the relationship re-

quired between the regulation and the public interest. As

to the first prong of this test, the scope of legitimate state

interest is extremely broad and will be given the widest

latitude under the taking clause and the substantive due

process clause. See Concrete Pipe and Products, Inc. v.

Construction Laborers Pension Trust, 508 U.S. 602, 637

(1993); Hawaii Housing Authority v. Midkiff, 467 U.S.

229 (1984); Berman v. Parker, 348 U.S. 26 (1954).

The Court in Hawaii Housing Authority, made abundantly

clear that the Court should not substitute its judgment for

a legislature’s judgment:

When the legislature’s purpose is legitimate and its

means are not irrational, our cases make clear that

empirical debates over the wisdom of takings—no less

than debates over the wisdom of other kinds of socio-

economic legislation—are not to be carried out in

the federal courts. 467 U.S. at 241-242.

The Court has also found that governmental action is

entitled to a presumption that it legitimately advances

the public interest. See, e.g., Concrete Pipe and Products,

Inc. v. Construction Laborers Pension Trust, 508 U.S.

602, 637 (1993). Local governmental action will not be

construed to effectuate a taking as long as the govern-

mental entity has reasonably concluded that “ ‘the health,

safety, morals, or general welfare’ would be promoted by

12

prohibiting particular contemplated uses of land.” Penn

Central Transportation Co. v. New York City, 438 U.S.

104, 125 (1978). In that case, the Court cited a long his-

tory of decisions by the judiciary that allowed state regula-

tions that were “reasonable.” Penn Central Transporta-

tion Co. v. New York City, 438 U.S. at 125-126.°

Under the second prong of the test, a court must deter-

mine whether the property maintains any permanent bene-

ficial value, when viewed as a whole. See, e.g., Concrete

Pipe and Products, Inc. v. Construction Laborers Pension

Trust, 508 U.S. 602, 643-44 (1993); Pennell v. City of

San Jose, 485 U.S. 1 (1988); Hodel v. Irving, 481 U.S.

704 (1987). In Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), the Court concluded that unless

the owner is denied all economically viable use of the land,

then a court should return to the traditional Penn Central

balancing of interests test. The viability of the land has

traditionally been evaluated in its totality. See, e.g., Con-

crete Pipe and Products, Inc. v. Construction Laborers

Pension Trust, 508 U.S. 602 at 643-44 (1993) (“to the

extent that any portion of the property is taken, that por-

tion is always taken in its entirety, the relevant question,

however, is whether the property taken is all, or only a

portion of the parcel in question,” thus resolving footnote

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

1003, fn.7 (1992), which states, if, “for example, a regu-

5 The only Supreme Court pronouncement to the contrary is the

Majority’s opinion in Nollan v. California Coastal Commission, in

Footnote 3, in which the Court states, “We have required that the

regulation “substantially advance” the “legitimate state interest”

sought to be achieved . . ., not that “the State ‘could rationally have

decided’ that the measure adopted might achieve the State’s objec-

tive.” Nollan v. California Coastal Comm'n, 483 U.S. 825 at Foot-

note 3. However, even if not explicitly stated, this statement was

made in the context of a title taking and the Court in Dolan v. City

of Tigard clarified this when it expressly applied Nollan to the fac-

tual situation of title dedication. Dolan v. City of Tigard, 512 U.S.

at 377, 386.

ee eT

13

lation requires a developer to leave 90 percent of a rural

tract in its natural state, it is unclear whether we would

analyze the situation as one in which the owner has been

deprived of all economically beneficial use of the burdened

portion of the tract, or as one in which the owner has

suffered a mere diminution in value of the tract as a

whole.”).

This principle of looking at the totality of the land has

been a constant in economic takings jurisprudence. Penn

Central Transportation Co. v. New York City, 438 U.S.

104 (1978); Keystone Bituminous Coal Ass'n v. De-

Benedictis, 480 U.S. 470 (1987).

The federal and state courts have uniformly held that

all substantial use of the property must be lost before an

economic taking occurs. A per se taking occurs only if

the regulation denies the owner of 100 percent of the

economically viable use of the land unless the regulation

is establishing a common law nuisance principle. Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 1029

(1992). However, if the landowner has not been denied

all economically viable use, the court returns to a balanc-

ing of interests as elucidated in Penn Central Transpor-

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

reh’g denied 439 U.S. 883 (1978). See also Faux-Burhans

v. Board of County Commissioners, 674 F.Supp. 1172

(D.Md. 1987), aff'd 859 F.2d 149 (4th Cir. 1988), cert.

denied 488 U.S. 1042 (1989). Terminals Equipment Co.

v. City and County of San Francisco, 221 Cal.App. 3d

234, 270 Cal.Rptr. 329 (Cal.App. 1990) (restating rule

that “all” reasonable use must be denied); De Botton v.

Marple Township, 689 F.Supp. 477 (E.D.Pa. 1988)

(finding no taking because “all” uses of property have not

been denied); City of Virginia Beach v. Virginia Beach

Land Inv. Ass'n No. 1, 389 S.E.2d 312 (Va. 1990)

(downsizing of 403 acre parcel from PUD to agriculture

14

was not a taking because no deprivation of “all” economi-

cally viable use) .®

Economic takings cases since Village of Euclid v. Am-

bler Realty Co., 272 U.S. 365 (1926), have made clear

that diminution in land value, absent a deprivation of all

reasonable and substantial value, does not constitute a

taking. Village of Euclid v. Ambler Realty Co., 272 US.

365 (1926), (no taking despite a 78 percent reduction

in land value); Haas & Co. v. City and County of San

Francisco, 605 F.2d 1117 (9th Cir. 1979) (95 percent

reduction in value no taking), cert. denied 445 U.S. 928,

reh'g denied 446 U.S. 929 (1980); Pace Resources, Inc. v.

Shrewsbury Township, 808 F.2d 1023 (3d Cir. 1987)

(90 percent reduction, $495,000 to $52,000, is not a

taking), cert. denied 482 U.S. 906, reh’g denied 483 U.S.

1040 (1987); Hadacheck v. Sebastian, 239 U.S. 394

(1915) (holding that a 91.5 percent reduction, $800,000

to $60,000, is not a taking).

These cases have been recently summarized by this

Court in Concrete Pipe and Products, Inc. v. Construction

Laborers Pension Trust, 508 U.S. 602 (1993), which

reiterated that in economic takings the property must be

viewed in its entitrety and that diminution of value of 78

percent and 91.5 percent (citing Euclid and Hadacheck)

are not takings.

6 The Del Monte Dunes case is also a total anomaly to other Ninth

Circuit cases. In Herrington v. County of Sonoma, 834 F.2d 1488

(9th Cir. 1987), modified 857 F.2d 567 (9th Cir. 1987) (the court

interpreted First English to mean that a taking does not occur

unless the property owner demonstrates that all or substantially all

economically viable use of the property has been denied”), cert.

denied, 489 U.S. 1090 (1989).

a AS a ly la ee Oat tk

15

II. THIS COURT HAS ADOPTED AN INTERMEDIATE

STANDARD OF HEIGHTENED SCRUTINY

SOLELY FOR THE NARROW CATEGORICAL EX-

CEPTIONS OF TITLE OR EXACTION TAKINGS

AND THE LOWER COURTS HAVE USED THE

ROUGH PROPORTIONALITY TEST SIMILARLY,

SOLELY FOR TITLE OR EXACTION TAKINGS

AND NOT FOR ECONOMIC TAKING CLAIMS

Numerous cases have properly declined to apply Dolan’s

rough proportionality test to claims other than title or

exaction takings. In New Port Largo, Inc. v. Monroe

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

117 S.Ct. 2514 (1997), the court rejected applying

Dolan’s rough proportionality standard to an economic

regulatory taking claim. /d. at 1088. In New Port Largo,

a landowner sued the county for a temporary regulatory

taking and deprivation of due process, after the county

rezoned its beach front property from residential duplex

use to private airport use. /d. at 1087.

The court in New Port Largo rejected using the height-

ened level of scrutiny required under the Nollan/Dolan

paradigm. The Court explained:

In [Nollan and Dolan] a state had demanded that a

person open his or her property to public traffic,

again without just compensation. That fact distin-

guished NPL’s situation: the regulation in this case

told NPL how it could use the property for profit,

but did nothing to require NPL to open its property

to the public for use just as the public wished.

Id. at 1088.

The Tenth Circuit, in Clajon Production Corp. v. Pe-

tera, 70 F.3d 1566 (10th Cir. 1995), also held that

Dolan’s proportionality test did not apply to an economic

regulatory taking. /d. at 1578. In Clajon, the issue before

the court was whether Wyoming’s two-license limit on

supplemental hunting licenses issued to large landowners

violated the takings and equal protection clauses of the

16

Fifth Amendment. /d. at 1569. The landowners had

alleged that they enjoyed a common law property right to

hunt surplus game on their lands and that the Wyoming

regulation constituted an inappropriate “leveraging of

police power” which deprived them of their property rights

without justly compensating them. /d. at 1576.

The court in Clajon declined to apply Dolan’s rough

proportionality test to the landowners’ claim. In so doing,

the court recognized that Dolan’s rough proportionality

does not apply to all regulatory takings, but is instead

“limited to the context of development exactions where

there is a physical taking or its equivalent.” /d. at 1578.

The court further argued that this test must be limited to

development exactions “[g]iven the important distinctions

between general police power regulations and develop-

mental exactions [or] physical taking cases... ..” 1d.

The court concluded by noting:

In our judgment, both Nollan and Dolan follow from

takings jurisprudence’s traditional concern that an in-

dividual cannot be forced to dedicate his or her land

to public use without just compensation. That is

Nollan and Dolan essentially view the conditioning

of a permit based on the transfer of a property in-

terest—i.e., an easement—as tantamount to physical

occupation cases to those situations in which the

government achieves the same end (i.e., the posses-

sion of one’s physical property) through a conditional

permitting procedure.

See also Springer, Grubb & Associates v. City of Hailey,

903 P.2d 741, 747 (Idaho 1995), that held Dolan is lim-

ited to property exactions and does not apply to regulatory

rezoning activities because:

Dolan is distinguishable. It involved the reasonable-

ness of conditions exacted on a property owner be-

fore the community would grant a building permit.

One condition required the owner to dedicate a por-

tion of his property for public use as a bicycle/

ee ee

17

pedestrian pathway. The United States Supreme

Court’s holding required the lower court to make a

finding as to “proportionality” between the exactions

required and the projected impact of the proposed

development. Here there has been no exaction, nor

a taking for all uses for any portion of the subject

property.

Id. at 747.

See also Pringle v. City of Wichita, 917 P.2d 1351, 1357

(Kan. Ct. App. 1996) (Dolan’s rough proportionality test

does not apply to a challenge to a city’s decision to close

an intersection while completing a new four lane freeway) ;

Arcadia Development Corp. v. City of Bloomington, 552

N.W.2d 281, 286 (Minn. Ct. App. 1996) (Dolan’s rough

proportionality test does not apply to challenge to citv

ordinance requiring mobile home park owners who close

their parks to pay relocation costs to park residents).

Il. THE COURT OF APPEALS ERRONEOUSLY AP-

PLIED THE DOLAN ROUGH PROPORTIONALITY

TEST TO INVERSE CONDEMNATION CLAIMS

BASED ON ECONOMIC TAKINGS

A. Supreme Court Precedent

This Court has adopted the rough proportionality test

to serve as a heightened standard of scrutiny only in in-

verse condemnation claims involving title takings or exac-

tions in lieu of dedication. Dolan v. City of Tigard, 512

U.S. 374, 391 (1994). The Ninth Circuit erroneously

applied this standard to an inverse condemnation claim

involving solely an economic taking, without explanation

or justification. Indeed, the Court did not cite one single

case to support the validity of applying a heightened

standard to an economic taking case. No dedication of

iand or exactions in lieu of dedication were imposed as

project conditions by the City of Monterey. The Ninth

Circuit’s decision to apply this heightened standard to

18

inverse condemnation claims involving an economic taking

runs contrary to every takings case this Court has decided.

See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980);

Penn Central Transportation Co. v. New York City, 438

U.S. 104 (1978).

In Del Monte Dunes, the landowner challenged the

City’s rejection of its applications to build 190 (or more)

residential units on its property. Del Monte Dunes at

Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1499

(9th Cir. 1990). While the repeated rejections of the

landowner’s applications may warrant sympathy, they are

not title takes or exactions. In Del Monte Dunes, the City

did not mandate or authorize a physical invasion or a title

dedication or exaction as a condition for development

approval. The City never attempted to coerce Del Monte

Dunes into yielding some incident of ownership connected

with its land. Under its police power, a city has broad

authority to regulate land as long as the governmental

entity has reasonably ensured that “‘the health, safety,

morals, or general welfare’ would be promoted by pro-

hibiting particular contemplated uses of land.” Penn Cen-

tral Transportation Co. v. New York City, 438 U.S. 104,

125 (1978).

Here, the City denied development approval causing an

allegation that this resulted in an economic taking based

on deprivation of all substantial economic value during the

temporary period of the alleged take. This denial should

be evaluated under the test established in Agins v. City of

Tiburon, 447 U.S. 255 (1980).

It would indeed be a dramatic leap for this Court to

apply a heightened level of scrutiny to inverse condemna-

tion claims based on an economic taking because there

is no precedent for such a heightened level of scrutiny to

be applied to an economic takings claim.

19

B. If Dolan Applies To Economic Takings, Lochner’

Substantive Due Process Will Be Resurrected To

the Substantial Detriment of the Public Health,

Safety and Welfare

Assuming arguendo that the heightened scrutiny stand-

ard was extended to all inverse condemnation claims based

on economic takings, the federal courts would be intrud-

ing upon local governmental entities’ ability to utilize their

police power to plan and regulate the character of their

communities.

Justice Holmes, who wrote Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922) in 1922 at the height of

the Lochner era, nevertheless noted that local governments

must have the ability to effectively use their police power.

To allow heightened scrutiny would run counter to this

Court’s long-standing notion that legislatures will be given

the widest latitude in economic and social policy under

the takings clause, substantive due process and equal pro-

tection clauses. See, e.g., FCC v. Beach Communications

Inc., 508 U.S. 307, 313 (1993); Concrete Pipe and Prod-

ucts, Inc. v. Construction Laborers Pension Trust, 508

U.S. 602, 637 (1993); Hawaii Housing Authority v. Mid-

kiff, 467 U.S. 229 (1984).

7 Lochner v. New York, 198 U.S. 45 (1905).

8 See Pearson v. City of Grand Blane, 961 F.2d 1211, 1222 (6th

Cir. 1992), in which the court summarized the positions of all eleven

circuits on substantive due process to demonstrate that “loca! zon-

ing actions would fall to substantive due process only if they shocked

the conscience ;” by its “shocks the conscience” terminology, it was

referring to extreme irrationality. As recently as Schenck v. City

of Hudson, 114 F.3d 590, 594 (6th Cir. 1997), the Court of Appeals

recited the case holdings of all eleven circuits that federal courts

won't sit as “super zoning boards” and that unless the legislative

body was completely irrational, substantial due process will be met.

See Bituminous Materials, Inc. v. Rice County, Minnesota, 126 F.3d

1068, 1070 (8th Cir. 1997) ; Chesterfield Development Corp. v. City

of Chesterfield, 963 F.2d 1102 (8th Cir. 1992) (the theory of

substantive due process is properly reserved for truly egregious and

extraordinary cases).

20

Imposing a heightened standard of scrutiny to economic

regulations which merely diminish value would affect al-

most all land-use regulations as applied to every parcel of

land and would: (1) revive Lochner-type substantive due

process and empower the federal courts to sit as super

legislatures; (2) as a practical matter, shift the presump-

tion in land-use cases from validity to invalidity; (3) cause

more litigation in the already overburdened federal court

system; and (4) jeopardize the validity of all land-use

regulations and the public health, safety and welfare that

they protect. See Jonathan M. Block, Limiting the Use of

Heightened Scrutiny to Exaction Cases, 71 N.Y.U. L.Rev.

1021 (1996).

The importance of effective land-use regulation was first

recognized by this Court in Village of Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926), which with farsighted

vision stated:

Building zone laws are of modern origin. They began

in this country about 25 years ago. Until recent

years, urban life was comparatively simple, but, with

the great increase and concentration of population,

problems have developed, and constantly are develop-

ing, which require, and will continue to require, ad-

ditional restrictions in respect of the use and occu-

pation of private lands in urban communities. Regu-

lations, the wisdom, necessity, and validity of which,

as applied to existing conditions, are so apparent

that they are now uniformly sustained, a century ago,

or even half a century ago, probably would have

been rejected as arbitrary and oppressive.

Since then, cities, counties, and states have utilized the

opportunity to use planning and zoning to deal with the

countless problems of urbanization. These entities have

used planning to deal with the great crises and problems

of our modern day era. State and local governments have

used planning to reduce congestion and sprawl,’ save his-

9 Haviland v. Land Conservation and Development Commission.

609 P.2d 423 (Or. 1980) (by establishing urban growth boundaries).

21

toric districts,"° foster affordable housing," promote eco-

nomic development, protect the environment,’* reduce

infrastructure deficiencies,* and save agricultural land.’

However, if a heightened standard is employed by this

Court, governmental entities will have great difficulty

accomplishing these purposes for the public good.

This was stated well in Associated Home Builders of the

Greater East Bay, Inc. v. Livermore, 557 P.2d 473 (Cal.

1976), a decision known for its critical scrutiny of exclu-

sionary local zoning as:

Most zoning and land use ordinances affect popula-

tion growth and density. As commentators have ob-

served, to insist that such zoning laws are invalid

unless the interests supporting the exclusion are com-

pelling in character, and cannot be achieved by an

alternative method, would result in wholesale invali-

dation of land use controls and endanger the validity

of city and regional planning.

Finally, a heightened standard would reverse the funda-

mental constitutional policies in effect in this nation since

10 Penn Central Transportation Co. v. New York City, 438 U.S.

104 (1978), reh’g denied, 439 U.S. 883 (1978) (preserving historic

landmarks and districts).

11 Southern Burlington County N.A.A.C.P. v. Mount Laurel Town-

ship, 456 A.2d 390 (N.J. 1983) (promoting affordable housing and

inclusionary zoning).

12 State v. Miami Beach Redevelopment Agency, 392 So.2d 875

(Fla. 1980) (upholding bonds for redevelopment and economic plan

of city).

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

upon a plan the city also will consider how well the proposed devel-

opment will preserve the surrounding environment).

14 Palm Beach County v. Wright, 641 So.2d 50 (Fla. 1994) (pro-

tecting the right of way of future transportation corridors).

15 Sierra Club v. Hayward, 623 P.2d 180 (Cal. 1981) (upholding

agricultural zoning and tax assessment restrictions to preserve agri-

cultural land).

22

its founding. Land-use policy has always been the domain

of state and local government.’® This Court has said

repeatedly, perhaps no more important local government

power and responsibility to the people exists than the

determination of land-use governance and planning for

the future of the community. See Young v. American

Mini Theatres, Inc., 427 U.S. 50, 72 (1976); City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986);

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).

To impose a heightened standard of review on land-use

regulations would be to place federal court supervision

over the truly most local activity of state and local govern-

ment. It is important to emphasize that there is no na-

tional land-use policy."7 The underlying rationale is obvi-

ous: land-use policy is of local concern and is inherently

dependent upon local political, economic, social, aesthetic,

geographical, and environmental issues which are more

effectively analyzed and resolved by those government en-

tities which have intimate knowledge and understanding

of those elements."* Especially is this true in light of the

16 Henry M. Hart, The Relations Between State and Federal Law,

54 Colum. L. Rev. 489, 493 (1954).

17 See H. Doc. No. 91-34 (91st Congress), Natior ommission

on Urban Problems (“Douglas Commission Report” suilding The

American City (1976); Advisory Commission on Intergovernmental

Relations, Urban and Rural America: Policies for Future Growth

(1968); Secretary of Housing and Urban Development, 1980 Presi-

dent’s National Urban Policy Report (1980).

18 The importance of local involvement is emphasized by the con-

cept of direct legislation: initiative and referendum powers in local

zoning and planning. In upholding the constitutional validity of the

zoning referendum, the Supreme Court, in City of Eastlake v.

Forest City Enterprises, Inc., 426 U.S. 668, 676 (1976), held that

the electorate was free to control zoning so long as their decision

was not “clearly arbitrary and unreasonable.” Legislation affect-

ing land use is no longer to be totally excluded from such a

process than to abolish the entire initiative and referendum process

because some argue that the people are selfish, ignorant, and

parochial in their attitudes.

23

lack of any paramount preemptive, conflicting or interven-

ing federal statutory policy. This Court has always ad-

hered to the principle that state and local governments

must have the ability to function as independent centers

and laboratories for planning and economic policy. This

principle has carried through the jurisprudence of this

Court for over a century and a half, from Anderson v.

Dunn, 19 U.S. 204, 226 (1821) (“the science of govern-

ment .. . is the science of the experiment”) to Roth v.

United States (Harlan J.), 354 U.S. 476, 505 (1956)

(“It has often been said that one of the great strengths

of our federal system, is that we have, in the forty-eight

states, forty-eight experimental !aboratories.”) and Equal

Employment Opportunity Commission v. Wyoming, 460

U.S. 226, 264-265 (1982) (“Flexibility for experimenta-

tion not only permits each state to find the best solutions

to its own problems, it is the means by which each state

may profit from the experiences and activities of all the

rest.”).

This Court should reject heightened scrutiny in eco-

nomic regulatory taking claims based on faulty analogy

to the Dolan standard.

24

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be reversed. Specifically, the answer to

the third certified question (“Can reasonable proportional-

ity standard established by Dolan v. City of Tigard, 512

U.S. 374 (1994), in context of property exactions prop-

erly be applied to inverse condemnation action based upon

regulatory denial?” ) should be “no.”

Respectfully submitted,

ROBERT H. FREILICH *

KYLE E. Foote

RICHARD J. ANSSON, JR.

(Of Counsel)

FREILICH, LEITNER, & CARLISLE,

1000 Plaza West, 4600 Madison

Kansas City, Missouri 64112

(816) 561-4414

TERRY D. MORGAN

DAVID G. RICHARDSON

TERRY D. MORGAN & ASSOCIATES

Thanksgiving Tower

Suite 1930

1601 Elm Street

Dallas, Texas 75201

(214) 740-9944

* Counsel of Record