Amicus Curiae Brief — Monterey v. Del Monte Dunes at Monterey, Ltd.
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Supreme Court, U.S.
FILED
€
1996
No. 97-1235 m=
Tt CLERK
In The
Supreme Court of the United States
October Term, 1997
4
CITY OF MONTEREY,
Petitioner,
DEL MONTE DUNES AT MONTEREY, LTD., et al.,
Respondents.
e
On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
o
BRIEF OF THE CITY AND COUNTY OF
SAN FRANCISCO AND 86 CALIFORNIA CITIES
AND COUNTIES AS AMICUS CURIAE IN
SUPPORT OF PETITIONER CITY OF MONTEREY
o
Loutse H. Renni
City Attorney
City and County of San Francisco
Dennis AFTERGUT
Chief Assistant City Attorney
E.teN ForRMAN
ANDREW W. SCHWARTz*
Deputy City Attorneys
1390 Market Street, 6th Floor
San Francisco, CA 94162
(415) 554-3906
*Counsel of Record
{Additional Counsel Continued On Inside Cover]
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
The following California public entities join with the
City and County of San Francisco in this brief in support
of petitioner City of Monterey:
Avalon
PAMELA ALBERS
City Attorney
P.O. Box 1676
Avalon, CA 90704
Benicia
HeatHer C. MCLAUGHLIN
City Attorney
250 East “L” Street
Benicia, CA 94510
Belvedere
Gary T. RAGGHIANTI
Ragghianti Freitas
Montobbio Wallace LLP
874 Fourth Street, Suite D
San Rafael, CA 94901-3246
Berkeley
ZacH COWAN
Assistant City Attorney
2180 Milvia Street,
4th Floor
Berkeley, CA 94704
Brentwood
Paut C. ANDERSON
City Attorney
708 Third Street
Brentwood, CA 94513
Burbank
Terry B. STEVENSON
Senior Assistant
City Attorney
Office of the
City Attorney
275 E. Olive Avenue
Burbank, CA 91502
Calmesa
Marcuerite P. Batrerssy
City Attorney
1839 Commercenter West
P. O. Box 6425
San Bernardino, CA
92412
Capitola
RicHarD M. MANNING
City Attorney
420 Capitola Avenue
Capitola, CA 95010
Carlsbad
RONALD R. BALL
City Attorney
1200 Carlsbad Village
Drive
Carlsbad, CA 92008-1989
Carson
Daroip D. Pierer
Assistant City Attorney
333 S. Hope Street,
38th Floor
Los Angeles, CA 90071
Chino
Jimmy L. Gutierrez
City Attorney
12616 Central Avenue
Chino, CA 91710
Chula Vista
JoHN M. KaAHeENy
City Attorney
276 Fourth Avenue
Chula Vista, CA 91910
Coachella
Jimmy L. Gutierrez
City Attorney
12616 Central Avenue
Chino, CA 91710
Colma
Rocer C. Prrers
City Attorney
180 Montgomery Street,
Suite 2000
San Francisco, CA 94104
Corte Madera
Jerrrey A. WaALtTerR
City Attorney
670 W. Napa, Suite F
Sonoma, CA 95476
Cotati
Jerpmrey A. WALTER
City Attorney
670 W. Napa, Suite F
Sonoma, CA 95476
Daly City
STAN GUSTAVSON
City Attorney
333 90th Street
Daly City, CA 94015
Del Rey Oaks
Rosert WetuiNncTon
City Attorney
857 Cass Street, Suite D
Monterey, CA 93940
El Centro
James L. Darrow
City Attorney
1275 Main Street
El Centro, CA 92243
Eureka
Ds f ANBERG
(vt orney
53° K Street
Eureka, CA 95501
Grand Terrace
JoHN R. Harper
City Attorney
Harper and Burne LLP
453 S. Glassell Street
Orange, CA 92866
Hermosa Beach
MicHaet JeNKINS
City Attorney
Richards, Watson
& Gershon
333 S. Hope Street,
38th Floor
Los Angeles, CA 90071
Highland
Marcuerite P. Batrrerssy
City Attorney
1839 Commercenter West
P. O. Box 6425
San Bernardino, CA
92412
Huntington
Gan Hutton
City Attorney
2000 Main Street
Huntington Beach, CA
92648
Indian Wells
Joun L. Cook
City Attorney
44-950 Eldorado Drive
Indian Wells, CA 92210
Irvine
Joe. D. Kurerserc
City Attorney
Rutan & Tucker, LLP
P. O. Box 1950
Costa Mesa, CA
92628-1950
King City
Epwarp J. Foury
City Attorney
103 River Drive
King City, CA 93930
Laguna Beach
PHur D. Korn
City Attorney
Rutan & Tucker, LLP
611 Anton Boulevard,
Suite 1400
Costa Mesa, CA 92626
Laguna Hills
Lors E. Jerrrey
City Attorney
701 S. Parker Street,
Suite 7000
Orange, CA 92868-4720
Lakewood
JouHn Sanrorp Topp
City Attorney
4909 Lakewood Blvd.,
Suite 300
Lakewood, CA 90712-2436
Lawndale
Wituiam W. Wynper
City Attorney
Rutan & Tucker, LLP
611 Anton Boulevard,
14th Floor
Costa Mesa, CA
92626-1998
Long Beach
HeatHer A. MAaHoop
Principal Deputy
City Attorney
333 W. Ocean Blvd.,
llth Floor
Long Beach, CA
90802-4664
Merced
Steven F. Norp
City Attorney
678 W. 18th Street
Merced, CA 95340
Mill Valley
Craic Lasapie
McDonough, Holland
& Allen
1999 Harrison Street,
Suite 1300
Oakland, CA 94612
Montebello
JONATHAN B. Stone, Jr.
City Attorney
Barbosa & Garcia LLP
Los Angeles, CA 90017
Monterey Park
ANTHONY CANZONERI
City Attorney
Bown, Winfield &
Canzonerri
300 S. Grand Avenue,
Suite 1500
Los Angeles, CA 90071
Mountain View
Micnaet D. Marretro
City Attorney
500 Castro Street
Mountain View, CA
94039
Murrieta
Joun R. Harper
City Attorney
Harper and Burne LLP
453 S. Glassell Street
Orange, CA 92866
Napa
THomas B. Brown
City Attorney
955 School Street
Napa, CA 94559
National City
Georce H. Etser, Ill
City Attorney
1243 National City
Boulevard
National City, CA 91950
Nevada
James R. ANDERSON
City Attorney
230 Main Street
Nevada City, CA 95959
Norco
Joun R. Harper
City Attorney
Harper and Burne LLP
453 S. Glassell Street
Orange, CA 92866
Novato
Jererey A. WatTeER
City Attorney
670 W. Napa, Suite F
Sonoma, CA 95476
Ojai
Monte L. Wippers
City Attorney
5425 Everglades Street,
Suite 100
Ventura, CA 93003
Orange
Davip A. De Berry
City Attorney
300 E. Chapman Avenue
Orange, CA 92866
Oxnard
Gary GILG
City Attorney
300 W. Third Street,
Suite 300
Oxnard, CA 93030-5737
Palmdale
Wa MartHew DrrzHazy
City Attorney
38300 N. Sierra Hwy
Palmdale, CA 93550
Palm Desert
Davip J. Erwin
City Attorney
Best Best & Krieger LLP
39700 Bob Hope Dr.,
Suite 312
Rancho Mirage, CA 92270
Pico Rivera
Scott NicHoLs
City Attorney
3610 Long Beach Blvd.,
Suite 218
Long Beach, CA 90807
Pleasant Hill
Desra S. MArGo.ts
City Attorney
100 Gregory Lane
Pleasant Hill, CA 94523
Plymouth
Micnaet F. Dean
City Attorney
400 Capitol Mall,
27th Floor
Sacramento, CA 95814
Poway
SrerHen M. Ecxis
City Attorney
P.O. Box 789
Poway, CA 92064
Redlands
Danie. J. McHucH
City Attorney
P. O. Box 3005
Redlands, CA 92373
Rialto
Rosert A. Owen
City Attorney
135 W. Rialto Avenue
Rialto, CA 92376
Riverside
STAN YAMAMOTO
City Attorney
3900 Main Street -
City Hall
Riverside, CA 92522
Rolling Hills
MicHaet JENKINS
City Attorney
Richards, Watson &
Gershon
333 S. Hope Street,
38th Floor
Los Angeles CA
90071-1469
Roseville
Mark Doane
City Attorney
311 Vernon Street, #202
Roseville, CA 95678
Ross
Hapven Rortn
Town Attorney
1050 Northgate Street
San Rafael, CA 94903
San Anselmo
Happen Rortn
Town Attorney
1050 Northgate Street
San Rafael, CA 94903
San Buenaventura
DoNNA LANDEROS
City Manager
501 Poli Street
P.O. Box 99
Ventura, CA 93002-0099
San Diego
C. ALAN SUMPTION
Deputy City Attorney
City Attorney’s Office
1200 Third Avenue,
Suite 1100
San Diego, CA 92101
San Rafael
Gary T. RAGGHIANTI
City Attorney
P.O. Box 151560
1400 Fifth Avenue
San Rafael, CA 94915-1560
Santa Barbara
Daniet J. WALLACE
City Attorney
740 State Street, Suite 201
Santa Barbara, CA 93102
Santa Cruz
Joun G. Barisone
City Attorney
333 Church Street
Santa Cruz, CA 95060
Santa Monica
MarsHa Jones Moutie
City Attorney
1685 Main Street,
Room 301
Santa Monica, CA 90401
Santa Paula
Pour H. Romey
City Attorney
P.O. Box 569
Santa Paula, CA 93061
Santa Rosa
Rene AuGuste CHOUTEAU
City Attorney
100 Santa Rosa Avenue,
Room 8
Santa Rosa, CA 95402-1678
Sunnyvale
Vaterie J. ARMENTO
City Attorney
456 W. Olive Avenue
P. O. Box 3707
Sunnyvale, CA 94088
Sutter Creek
Braviey W. SULLIVAN
City Attorney
18 Main Street
Sutter Creek, CA 95685
Tracy
Desra E. Corsert
City Attorney
325 E. Tenth Street
Tracy, CA 95376
Walnut
Scott NicHois
City Attorney
3610 Long Beach Blvd.,
Suite 218
Long Beach, CA 90807
West Hollywood
MicHaArt JENKINS
City Attorney
Richards, Watson &
Gershon
333 S. Hope Street,
38th Floor
Los Angeles, CA 90071
The Counties of:
Butte
Rosert MacKenzie
Chief Deputy County
Counsel
25 County Center Drive
Oroville, CA 95965
Contra Costa
Victor J. Westman
County Counsel
651 Pine Street, 9th Floor
Martinez, CA 94554
Glenn
NorMan Y. Herrinc
County Counsel
525 W. Sycamore Street
Willows, CA 95988
Imperial
HOMAS Fries
County Counsel
County Administration
Center
940 W. Main Street,
Room 205
El Centro, CA 92243-2869
Lake
CAMERON L. Reeves
County Counsel
255 N. Forbes Street
Lakeport, CA 95453
Mendocino
H. Perer Kew
County Counsel
501 Low Gap Road,
Room 1030
Ukiah, CA 95482
Napa
Rosert WestMeyer
County Counsel
1195 Third Street,
Room 301
Napa, CA 94559
Riverside
Jor S. Rank
Assistant County
Counsel
Riverside County
Counsel
3535 Tenth Street,
Suite 300
Riverside, CA 92501-3674
Sacramento
Rosert A. Ryan, Jr.
County Counsel
700 H. Street, Suite 2650
Sacramento, CA 95814
Santa Barbara
ALAN SELTZER
Chief Deputy County
Counsel
105 E. Anapamu Street,
#201
Santa Barbara, CA 93101
Santa Cruz
Dwicut L. Herr
County Counsel
701 Ocean Street,
Room 505
Santa Cruz, CA 95060-4068
Shasta
Karen KeatinG JAHR
County Counsel
1815 Yuba Street, Suite 3
Redding, CA 96001
Solano
Dennis BUNTING
County Counsel
580 Texas Street
Fairfield, CA 94533
Tulare
Juuia J. Roserrs
Chief Deputy County
Counsel
2900 W. Burrch
Visalia, CA 93271
TABLE OF CONTENTS
Page
ee ee Ce TT 05 6 ido ns os dh ieesdevonsses iii
STATEMENT OF INTEREST OF AMICUS CURIAE... 1
GPE tak btencsewhibe dan) ciekbastanesvece 1
EPUB EUS GRE BNW CAM dnc cease ccacdecssccces 4
SE 6.55 6 ar Oa e Fae NEERAR ASE NWE be VE Cadet 6
I. IN ALLOWING A JURY TO DETERMINE LIA-
BILITY FOR A TAKING, THE NINTH CIR-
CUIT MISCONSTRUED CONTROLLING
PRECEDENT OF THES COURT .............. 6
A. There Is No Right To A Jury In Cases
Arising Under the Takings Clause....... 6
B. Section 1983 Does Not Create A Right To A
PR acNca tice decn vets eosedalpademeuese, 10
Il. THE NINTH CIRCUIT ERRONEOUSLY
APPLIED HEIGHTENED SCRUTINY TO A
SITUATION WHERE THE GOVERNMENT
DID NOT REQUIRE THE DEDICATION OF A
POSSESSORY INTEREST IN LAND AS A
CONDITION OF APPROVAL................ 15
A. Like Other Social And Economic Regula-
tion, Land Use Regulation Has Tradi-
tionally Enjoyed A Presumption Of
Pde kdieviahasdkesabiepakas wens 6% 15
B. This Court Has Limited Heightened Scru-
tiny To The Special Class Of Land Use
Regulation Cases Where Government
Requires A Dedication Of Property As A
Condition Of Project Approval .......... 18
TABLE OF CONTENTS - Continued
Page
C. Shifting Authority For Land Use Regula-
tory Policy To The Courts Would Under-
mine Fundamental Principles Of Political
IRS Re rr erry ee 22
D. Transferring Authority For Land Use Pol-
icy To The Courts Would Cripple The
Ability Of Local Government To Engage
Be TR Clee PRE. ook coc cccicceccsess 24
CRE i nekk sds acon teddneeEbeRsab ec wunis 29
a
iii
TABLE OF AUTHORITIES
Page
CASES
Agins v. City Tiburon, 447 U.S. 255 (1980)
EE EAS Ge een ee aad Oh Pa. ee 6 2 07, 2.
Albright v. Oliver, 510 U.S. 266 (1994) ............... 12
Arizonans for Official English v. Arizona, __ US.
—_ 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)........ 14
Armstrong v. United States, 364 U.S. 40 (1960)........ 13
Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d
per GOUE Ged PU 8 o'0 b6 ew etd adicdcdinadecedesenss 13
Atlas Roofing Co. v. Occupational Safety and Health
Review Comm'n, 430 U.S. 442 (1977).......... 7, 9, 10
Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d
Poe SOU TAD UIE MAREN TREE ed hevewevidociees 11
Baker v. McCollan, 443 U.S. 137 (1979)............... 12
Bauman v. Ross, 167 U.S. 548 (1897) ................ 7,9
Beatty v. United States, 203 F. 620 (4th Cir. 1913),
writ of error dismissed and cert. denied, 232 U:S.
Se Sn avdvcdee recone couanctustede beserenvasss 13
Berman v. Parker, 348 U.S. 26 (1954)................. 16
Chapman v. Houston Welfare Rights Organization,
GEE SE Ge GF OE abc eee nk cis dasisavvapernwetuss 12
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226
CER khchad dee dnaue val peddesésubae st ceeded ie Pe
City of Columbia v. Omni Outdoor Advertising, 499
Ss Se MONE 65a dour e.dedysp Oaene des kxednes baeees 15
iv
TABLE OF AUTHORITIES - Continued
Page
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
CRPER oc ccncctndsegdeoucabsyegesssbeveeeeepdatebee 27
Clajon Production Corp. v. Petera, 70 F.3d 1566 (10th
CO GOOD oka bis side Sates nue beues baaeeaeheus ha 16
Commercial Builders of Northern California v. Sacra-
mento, 941 F.2d 872 (9th Cir. 1991), cert. denied,
Pk UE. TR QD vs wih cctnbdsussicuadscvinsswdaed 17
Cook v. Cox, 357 F. Supp. 120 (E.D. Va. 1973)........ 12
C-Y Development Co. v. City of Redlands, 703 F.2d
PES CO GE TSE 5 oan ccnckviveesabetisdhsndesaen 23
Del Monte Dunes v. City of Monterey, 920 F.2d 1496
CPU Se eas <b ov hudaueparevenpeadankseuss 2, 5, 17
Del Monte Dunes v. City of Monterey, 95 F.3d 1422
(9th Cir. 1996), reaff'd on reh’g, 127 F.3d 1149 (9th
Ge BOOED k0s ionnssevesskentsecdsecasereauas 2, 5, 16
Department of Agric. & Consumer Services v.
Bonanno, 568 So.2d 24 (Fla. 1990) .................. 8
Dodd v. Hood River County, 136 F.3d 1219 (9th Cir.
SUMS <'s kcc cen cdendterecucupieueciacs renee 16, \7
Dolan v. City of Tigard, 512 U.S. 374 (1994)
nee bean ath oneed eavha ver hun krinekels 15, 19, 20, 21, 28
First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U.S. 304 (1987)..... 6, 11, 18
Gardner v. Baltimore Mayor & City Council, 969 F.2d
GS Glan GAR BN sc esstrcminivonmeeees 23
Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) .... 17
_
v
TABLE OF AUTHORITIES —- Continued
Page
Gevled & Fen, 374 Us. Gab Cee ba cecscitesiesiikin 18
Graham v. Connor, 490 U.S. 386 (1989)............... 12
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) ..... 7
Hensler v. City of Glendale, 8 Cal.4th 1 (1994)......... 9
Jacobs v. United States, 290 U.S. 13 (1933)........... 2, 6
Kaiser Aetna v. United States, 444 U.S. 164 (1979)..... 20
Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.
SD coc hc cde enebddsdednsseeveelees eee 17
Koh! v. United States, 91 U.S. 367 (1876)............. 10
Lorillard v. Pons, 434 U.S. 575 (1978) ................ 12
Lucas v. South Carolina Coastal Council, 505 U.S.
SOUS CHPUER i oven cdaNadsdevecnent cabaret 14, 22
Markman v. Westview Instruments, Inc., 517 US.
___, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)......... 7
Mid Gulf, Inc. v. Bishop, 792 F. Supp. 1205 (D. Kan.
Wee 5 6 cb tai essed boas seesaw eee eee 5, 8, 9
Miller v. California, 413 U.S. 15 (1973) ...........005. 27
Molina v. Richardson, 578 F.2d 846 (9th Cir. 1978) .... 11
Monell v. New York City Dept. of Social Services, 436
OS. GRD CHG UD occ cbcndsvavesedssancepseanetant 11, 14
Nectow v. City of Cambridge, 277 U.S. 183 (1927)..... 22
New Port Largo, Inc. v. Monroe County, 95 F.3d 1084
(11th Cir. 1996), cert. denied, __ U.S. __, 117
S.Ct. 2514, 138 L.Ed.2d 1016 (1997) ..............5,8
vi Vii
TABLE OF AUTHORITIES - Continued TABLE OF AUTHORITIES - Continued
Page Page
Nollan v. California Coastal Comm'n, 483 U.S. 825 United States v. Reynolds, 397 U.S. 14 RRS 7,9
Ce tk ep beees 18, 19, 20, 21, 28
United States v. Willow River Power Co., 324 U.S.
Parker v. Brown, 317 U.S. 341 (1943)................. 15 Se een Ors cddsnbucdnasboacaséabenecksdnadiaa 13
Parking Ass'n of Georgia, Inc. v. City of Atlanta, 450 Usery v. Turner Elkhorn Mining Co., 428 US. 1
S.E.2d 200 (Ga. 1994), cert. denied, 515 U.S. 1116 Pi ¢iudae tn Ghbuetcnedees doklietieeiveskse widen. 15
Dee i dé beecescécececes 16 :
Village of Belle Terre v. Boraas, 416 U.S. 1 (1973)...... 17
Penn Central Transp. Co. v. New York City, 438 U.S. . : |
ee ER ESS a ea 17, 18 Village of Euclid v. Ambler Realty Co., 272 U.S. 365
FRE et eet! Se aniep er sekiarte: Im 16, 17, 21
Pennell v. San Jose, 485 U.S. 1 (1988) ................ 17
Warner/Elektra/Atlantic Corp. v. County of DuPage,
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) 771 F. DU. DER GCE Ge. DOWER ccc ccccscvccccschs ©
SPEDE isa s 6u 6b oes 064s 6 eccdcvcen: 2, 17, 18, 21
Williamson County Regional Planning Comm'n v.
Perez-Serrano v. DeLeon-Velez, 868 F.2d 30 (1st Cir. Hamilton Bank, 473 U.S. 172 (1985)................ 13
Nee ee cuceuene 11
Zahn v. Board of Public Works, 274 U.S. 325 (1927) .... 16
Quern v. Jordan, 440 U.S. 332 (1979) ............0005. 14
Railroad Commission v. Pullman Co., 312 U.S. 496 STATUTES
Sc emeecececvece 17, 23 ee eas Ge OP GO ov i scdccncaddadccsvebeshuacok 12
Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 42 USC. & 1983 )
401 (9th Cir. 1996), cert. denied, US. _, 118 SE ey Ee Ce ao he As dc dnevtceseecacsi 10, 11, 12, 14
S.Ct. 1386, 140 L.Ed.2d 646 (1998) ................ 17
© Au ) S
Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810 (4th eee eee
Nn wceecences 16, 22 Bay Area Futures, Asac Stupy For SAN Francisco
District Councn. AND Ursan Lanp Institut
United States v. 21.54 Acres of Land, 491 F.2d 301 SS SE oa pevdcedendia ban hindsbevkuesenedanuce 25
ew eek uee 9, 10, 13
5 Jeremy C. Moore Er At., Moore’s Feverar Prac-
United States v. Carolene Products Co, 304 U.S. 144 _- ee & f- F rere ere 8, 9
EE ES Se 15
8 Jeremy C. Moore Er At., Moore's Feperat Prac-
United States v. Clarke, 445 U.S. 253 (1980)............ 6 ee FR PR, ere ee 8, 9
——————oOese—ee .aLQ_oaaLaLaQSxVvV—wV4aaeSSe
Viii
TABLE OF AUTHORITIES — Continued
Page
Jownt Venture Siuicon Vatitey Network, BENCHMARK-
ING StuIcON VALLEY’s Economic Vitatity AND
Sdaae Gat BA Ge ci ncdadscdcataecawsiandel 24, 27
PAMPHLET, Joint Venture Smicon Vaiiey (1996)..... 24, 27
Press Revcease, Association Or Bay Area Govern-
RGIS Ge. Dek WE C<cilvdudecactuhiscecdvdeteseee 25
STATEMENT OF INTEREST OF AMICUS CURIAE
Under Supreme Court Rule 37.4, amicus curiae City
and County of San Francisco, joined by the 86 California
cities and counties identified below, submit this brief in
support of petitioner City of Monterey.' This case
involves (1) the traditional right of a regulatory govern-
ment agency to a trial by the court, rather than by a jury,
to determine the agency’s liability for a taking under the
Fifth Amendment to the U.S. Constitution, and (2) the
standard of judicial review of the decisions of administra-
tive and legislative bodies to regulate the use of land.
With respect to the first question, the Ninth Circuit
Court of Appeals held that a jury may decide the liability
of a city for a taking. With respect to the second question,
the Ninth Circuit eliminated the judicial deference to the
decisions of local government to regulate land use, a
deference that has been fundamental in our system of
justice for more than 70 years. Because the availability of
a jury in inverse condemnation cases and the standard of
judicial review of land use regulation could have pro-
found implications for local governments, the Court
should have before it the viewpoint of these California
cities and counties.
INTRODUCTION
The decision of the Ninth Circuit represents a radical
departure from the standard of judicial review of land
use regulation that has prevailed under the rulings of this
' See cities and counties listed on previous pages.
Court for more than 70 years. The decision takes respon-
sibility for land use policies from state and local govern-
ments that are accountable to their communities for those
policies and hands that responsibility to federal juries.
San Francisco and 86 California cities and counties join
the City of Monterey in requesting reversal of the Ninth
Circuit’s decision.
In Del Monte Dunes at Monterey, Ltd. v. City of Mon-
terey, the Ninth Circuit held for the first time that a
plaintiff is entitled to a jury trial in an inverse condemna-
tion case. In so holding, the Ninth Circuit misconstrued
the controlling precedent of this Court. In Chicago, B. & Q.
R. Co. v. Chicago, 166 U.S. 226, 245 (1897), this Court held
that there is no right to a jury trial for cases under the
Takings Clause of the Fifth Amendment. At the time of
this Court’s decision, the application of the Takings
Clause was limited to eminent domain, namely, the gov-
ernment’s physical appropriation of land, also known as
direct condemnation. Since that time, however, the appli-
cation of the Takings Clause has been expanded to
inverse condemnation, namely, property owners’ suits
from indirect takings resulting from government regula-
tion of land use. See Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 414-15 (1922); Penn Central Transp. Co. v. New
York City, 438 U.S. 104, 122 n.25 (1978).
This Court has made clear that both direct and
inverse condemnation actions arise under the Takings
Clause of the Fifth Amendment. Jacobs v. United States,
290 U.S. 13, 16 (1933). Thus, the same rules regarding the
right to a jury trial apply to both. Amici urge this Court
to correct the Ninth Circuit’s deviation from this Court’s
precedent.
In addition to affording parties the right to a jury to
determine the government's liability for a taking, the
Ninth Circuit erred in shifting the fundamental balance of
power for land use regulatory policy between the courts
on the one hand and the administrative and legislative
branches of government on the other. With the exception
of the narrow class of regulation that (1) allows a physical
invasion of property, (2) deprives property of all econom-
ically viable use, or (3) requires the dedication of land to
the public as a condition of approval of development, the
decisions of this Court have uniformly held that local
governmental regulation of land is entitled to a deferen-
tial standard of judicial review. Under this deferential
test, the party challenging the regulation has the burden
to show that the regulation does not substantially
advance a legitimate state interest. Judicial deference to
state land use regulation, firmly rooted in the doctrine of
separation of powers, means that courts find that a land
use regulation effects a taking only in the most extreme
circumstances.
The decision of the Ninth Circuit changes all this.
The opinion raises the standard of review of all land use
regulation to heightened scrutiny. Moreover, the Ninth
Circuit has shifted the burden to the public agency to
demonstrate that its regulation substantially advances a
legitimate state interest. As a result, the Ninth Circuit has
transferred final authority over state and local land use
policy — historically the province of local legislatures and
administrative agencies — to federal juries.
This new scheme would create a groundswell of liti-
gation; any disappointed applicant for a building permit
would be able to ignore the legislative and administrative
forum and take the case to a court. Unless reversed, the
decision will effectively nullify the state and local legisla-
tive and administrative process that has traditionally for-
mulated land use policy.
Moreover, if upheld, the decision of the Ninth Circuit
would allow a judge or jury to substitute their views as to
the wisdom and efficacy of particular economic and
social regulations for the judgment of legislatures, plan-
ning commissions, and city councils. In effect, judges and
juries would function as zoning boards of appeals to sit in
review of any land use regulation.
San Francisco and amici cities and counties respect-
fully request that the Court reverse this far-reaching deci-
sion.
STATEMENT OF THE CASE
The property at issue consists of approximately 37
acres overlooking the Pacific Ocean in the City of Mon-
terey, California (“Monterey”). Beginning in 1981, the
owner of the property, Ponderosa Homes, made several
unsuccessful attempts to develop the property with
houses.
While Ponderosa’s last application to build 190
homes was pending with Monterey, respondent Del
Monte Dunes at Monterey, Ltd. and Monterey-Del Monte
Dunes Corporation (“Del Monte”) purchased the prop-
erty and pursued the application. In 1986, Monterey
denied Del Monte’s application.
Del Monte brought an action in the district court
against Monterey for inverse condemnation, violations of
its due process and equal protection rights, estoppel, and
unjust enrichment. The district court held that Del
Monte’s constitutional claims were not ripe for review
and dismissed. The Ninth Circuit reversed, finding that
the constitutional claims were ripe for adjudication. Del
Monte Dunes v. City of Monterey, 920 F.2d 1496, 1506 (9th
Cir. 1990).
On remand, over the objection of Monterey, the dis-
trict court ordered the inverse condemnat‘on and equal
protection claims tried by a jury. The district court
instructed the jury that it could find Monterey liable for
inverse condemnation if there was no “reasonable rela-
tionship” between Monterey’s denial of Del Monte’s proj-
ect and a legitimate public purpose. After a trial, the jury
found that Monterey was liable to Del Monte for inverse
condemnation and for a violation of Del Monte’s equal
provection rights. The jury awarded Del Monte $1,450,000
in damages.? The Ninth Circuit affirmed. Del Monte Dunes
v. City of Monterey, 95 F.3d 1422 (9th Cir. 1996), reaff'd on
reh'g, 127 F.3d 1149 (9th Cir. 1997) (Appendix to Mon-
terey’s Petition for Certiorari [“App.”]).
°
2 Amici cities and counties do not dispute that once liability
for inverse condemnation has been established, the question of
damages should be tried to a jury. See New Port Largo, Inc. v.
Monroe County, 95 F.3d 1084, 1092 (11th Cir. 1996), cert. denied,
__ U.S. __, 117 S.Ct. 2514, 138 L.Ed.2d 1016 (1997); Mid Gulf,
Inc. v. Bishop, 792 F. Supp. 1205, 1215 (D. Kan. 1992); Warner/
Elektra/Atlantic Corp. v. County of DuPage, 771 F. Supp. 911, 913
(N.D. Ill. 1991).
ARGUMENT
I. IN ALLOWING A JURY TO DETERMINE LIA-
BILITY FOR A TAKING, THE NINTH CIRCUIT
MISCONSTRUED CONTROLLING PRECEDENT
OF THIS COURT.
A. There Is No Right To A Jury In Cases Arising
Under the Takings Clause.
Inverse condemnation cases arise directly out of the
self-executing character of the Takings Clause of the Fifth
Amendment. First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304, 315-17
(1987), citing United States v. Clarke, 445 U.S. 253, 257
(1980). Inverse condemnation is “a shorthand description
of the manner in which a landowner recovers just com-
pensation for a taking of his property when condemna-
tion proceedings have not been instituted.” Clarke, 445
U.S. at 257. Inverse condemnation differ: ‘rom direct
condemnation (“eminent domain”) only insofar as the
action is initiated by the property owner. See First English,
482 U.S. at 315-17; Agins v. City of Tiburon, 447 U.S. 255,
258 n.2 (1980). This Court long ago acknowledged that
direct and inverse condemnation stem from the same
basic right:
The fact that condemnation proceedings were
not instituted and that the right was asserted in
suits by the owners did not change the essential
nature of the claim. The form of the remedy did
not qualify the right. It rested upon the Fifth
Amendment.
Jacobs v. United States, 290 U.S. at 16.
The right to a jury trial for claims under the US.
Constitution is determined by the Seventh Amendment.
The Seventh Amendment provides: “In suits at common
law, . .. the right of trial by jury shall be preserved.” U.S.
Const. amend VII. The Ninth Circuit determined that
because an inverse condemnation action is a suit “at
common law,” Del Monte was entitled to a jury under the
Seventh Amendment. But this Court has held that the
Seventh Amendment merely “preserves” the right to a
jury for actions for which a right to jury trial existed in
1791 when the Seventh Amendment was ratified. Mark-
man v. Westview Instruments, 517 U.S. 370, 116 S.Ct. 1384,
1389, 134 L.Ed.2d 577 (1996); Granfinanciera, S.A. v. Nord-
berg, 492 U.S. 33, 40-42 (1989); Ati. + Roofing Co. v. Occupa-
tional Safety and Health Review Comm'n, 430 U.S. 442,
459-6" .977).
When this Court first applied the Takings Clause to
the States, the Court confirmed that no right to a jury trial
existed for condemnation in 1791:
[Blefore the establishment of the government of
the United States|,] it had been the practice in
this country and in England to ascertain by com-
missioners, special tribunals and other like
agencies, the compensation to be made to
owners of private property taken for public use,
and it was not to be supposed that the general
provisions in American constitutions, national
and state, preserving the right of trial by jury,
superseded that practice. [citation omitted.]
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. at 245; see also
Atlas Roofing Co., 430 U.S. at 458; United States v. Reynolds,
397 U.S. 14, 18 (1970), citing Bauman v. Ross, 167 U.S. 548,
593 (1897) (estimate of just compensation for property
taken under right of eminent domain is not required to be
made by a jury) and 5 Jeremy C. Moore Et At., Moore's
Feperat Practice, ¥ 38.32(1) at 240-49 (2d ed. 1978)
(“Moore's 2d ed.”) (practical and jurisprudential history
both before and after 1791 lead to conclusion that there is
no constitutional right to jury trial in federal condemna-
tion action); 8 Jeremy C. Moore Er At., Moore’s Feperar
Practice, J 38.33(4)(a) at 125 (3d ed. 1997) (“Moore’s 3d
ed.”) (no right to jury trial existed for takings in 1791).
Accordingly, because inverse condemnation actions
are premised on the Takings Clause, and there is no right
to a jury in direct condemnation actions, inverse condem-
nation actions also do not implicate the right to a jury
trial. See New Port Largo, Inc., 95 F.3d at 1092; c.f. Depart-
ment of Agric. & Consumer Services v. Bonanno, 568 So.2d
24, 28 (Fla. 1990) (no right to jury trial for inverse con-
demnation under Florida Constitution because no right to
jury trial for condemnation at common law). The Elev-
enth Circuit has adopted this view:
“We have discovered no indication that the rule
in regulatory takings cases differs from the gen-
eral eminent domain framework, in which
issues pertaining to whether a taking has
occurred are for the court, while damages issues
are the province of the jury.”
New Port Largo, Inc., 95 F.3d at 1092.5
* The only other federal courts to address the issue of the
right to trial by jury in an inverse condemnation case agreed
with the Eleventh Circuit. See Mid Gulf, Inc. v. Bishop, 792 F.
Supp. at 1215 (liability for inverse condemnation raises question
To find a right to a jury in an inverse condemnation
case, the Ninth Circuit attempted to distinguish the rule
in direct condemnation cases. Without authority, the
Court reasoned that direct condemnation proceedings are
not tried before a jury because the United States tradi-
tionally is a party. App. 8 (citing commentary and case
law relating to Federal government's waiver of sovereign
immunity to jury trial for inverse condemnation). But as
shown above, the rule precluding a jury in condemnation
actions is rooted in the consistent practice of our country
before the adoption of the Seventh Amendment. See Chi-
cago, B. & Q. R. Co., 166 U.S. at 245; Atlas Roofing Co., 430
U.S. at 458; United States v. Reynolds, 397 U.S. at 18;
Bauman v. Ross, 167 U.S. at 593; 5 Moore’s 2d ed.,
{ 38.32(1) at 240-49; 8 Moore’s 3d ed., | 38.33(4)(a) at 125.
The Ninth Circuit found a right to a jury on the
liability issue because Del Monte’s inverse condemnation
claim raised mixed questions of fact and law and Del
Monte sought a damages remedy. App. 11-15. The former
reason is not relevant to the jury issue; direct condemna-
tion cases also raise mixed questions of law and fact. See,
e.g., United States v. 21.54 Acres of Land, 491 F.2d 301,
of law to be determined by the court); Warner/Elektra/Atlantic
Corp. v. County of DuPage, 771 F. Supp. at 913 (liability for
inverse condemnation presented question for the court). The
Eleventh Circuit’s position is also consistent with the rule
prevailing in the great majority of the 50 states. See, e.g., Hensler
v. City of Glendale, 8 Cal.4th 1, 15 (1994). Accordingly, the Ninth
Circuit’s rule would promote forum shopping between the
federal and state courts.
10
306-07 (4th Cir. 1973). Yet, as demonstrated above, the
unanimous and long-standing rule of this Court pre-
cludes juries in direct condemnation cases under the Fifth
Amendment. As this Court stated in Aflas Roofing Co.:
“The point is that the Seventh Amendment was never
intended to establish the jury as the exclusive mechanism
for factfinding in civil cases.” 430 U.S. at 460. The latter
reason also is not relevant to whether the liability issue
should be decided by a jury; courts have consistently
treated liability for inverse condemnation differently
from damages.4
The Ninth Circuit also found a right to a jury because
inverse condemnation actions are actions “at law” rather
than suits “in equity.” App. 7-9. This logic fails. Direct
condemnation is also a right at law; it is not a right in
equity, nor a creature of statute. Atlas Roofing Co., 30 US.
at 458, citing Kohl v. United States, 91 U.S. 367, 375-76
(1876) (Judiciary Act of 1789 conferred upon circuit courts
jurisdiction over condemnation actions). Yet, direct con-
demnation claims have never included a right to jury
trial. Id.
B. Section 1983 Does Not Create A Right To A
Jury.
The Ninth Circuit erroneously assumed that Del
Monte was entitled to a jury trial because Del Monte
brought its inverse condemnation action under 42 U.S.C.
* If a court finds that the government is liable for inverse
condemnation, a jury determines just compensation. See infra p.
5 and footnote 2.
11
Section 1983. App. 7-10. The Ninth Circuit’s reliance on
Section 1983 is misplaced.
In general, a jury is available in an action brought
under Section 1983 if the plaintiff seeks money damages.
See, e.g., Perez-Serrano v. DeLeon-Velez, 868 F.2d 30, 32 (1st
Cir. 1989) (in unlawful discharge case, “where damages
and injunctive relief are sought under § 1983, liability is
for the jury.”). However, among the rights enumerated in
the Constitution, the Takings Clause is uniquely “self-
executing.” See First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. at 315. “[I]t is
the Constitution that dictates the remedy for interference
with property rights amounting to a taking.” Id. Unlike
other claims for damages arising under the Constitution,
the Takings Clause provides its own monetary remedy,
“just compensation,” obviating a remedy under Section
1983. See also Molina v. Richardson, 578 F.2d 846, 853 n.14
(9th Cir. 1978) (“The Fifth Amendment's explicit require-
ment that compensation be paid for such takings is, of
course, an important factor distinguishing such
actions. ... ”).5
This Court has regarded Section 1983 as creating a
remedy for “constitutional torts.” See Monell v. New York
City Dept. of Social Services, 436 U.S. 658, 691 (1978). But
whether a jury is available in an action brought under
Section 1983 turns on whether a jury is available for
infringement of the underlying constitutional right. See
° But see Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d
704, 705 (9th Cir. 1992) (relying on non-takings cases, finding
that takings claims against municipalities under Fifth
Amendment must be brought under 42 U.S.C. § 1983).
12
Albright v. Oliver, 510 U.S. 266, 271 (1994), citing Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979) and Graham v.
Connor, 490 U.S. 386, 393-94 (1989) (Section 1983 purely a
remedy for violation of other federal rights; Section 1983
not a source of substantive rights); see also Chapman v.
Houston Welfare Rights Organization, 441 U.S. 600, 617
(1979) (Civil Rights Act of 1871 provides merely a rem-
edy, not any substantive rights); but see Cook v. Cox, 357 F.
Supp. 120, 123 (E.D. Va. 1973) (Section 1983 creates sepa-
rate federal right that implicates right to jury trial). As
demonstrated above, there is no constitutional right to a
jury in a takings case. Section 1983 does not create such a
right here.
The Ninth Circuit relied on Lorillard v. Pons, 434 U.S.
575 (1978) for the proposition that Section 1983 confers a
right to a jury. App. 7. However, in Lorillard, the underly-
ing right the plaintiff sought to enforce originated with
the Age Discrimination in Employment Act of 1967
(ADEA). 29 U.S.C. §§ 621 et seq. This Court found that in
creating a new legal right under the ADEA, Congress
intended to incorporate the right to a jury trial that
existed for enforcement of similar federal statutes as of
1967. 434 U.S. at 581, 584.°
In finding that a jury is available in an inverse con-
demnation case under Section 1983, the Ninth Circuit also
© The predecessor statute to Section 1983 was enacted in
1871. At the time of its enactment, there was no right to a jury
trial for condemnation actions because there was no right to a
jury trial for such actions in 1791. See supra at pp. 7-8. The mere
enactment of Section 1983 did not create the right to a jury trial
for claims for which no such right existed in 1871.
13
misconstrued a takings action as a type of common-law
tort, such as trespass. App. 9. The Ninth Circuit relied on
Beatty v. United States, 203 F. 620, 626 (4th Cir. 1913), writ
of error dismissed and cert. denied, 232 U.S. 463 (1914)
(appeal denied because order not final), for the proposi-
tion that inverse condemnation is similar to trespass.
However, Beatty was overruled in 21.54 Acres of Land, 491
F.2d at 306-07 (trial judge had jurisdiction to find facts
relative to takings claim) and Atlantic Seaboard Corp. v.
Van Sterkenburg, 318 F.2d 455, 459 (4th Cir. 1963) (“there is
no absolute right to a jury trial on the issue of compensa-
tion”).
An inverse condemnation claim is not analogous to
commen-iaw torts like trespass. In cases of trespass and
other common-law torts, the plaintiff sues the defendant
for damages for a wrong committed by the defendant. In
contrast, under the Takings Clause, the taking is not
considered a wrong or an injury as long as the govern-
ment pays compensation. See Williamson County Regional
Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194
(1985). The framers intended the Takings Clause only to
apportion the burdens of public projects between the
individual and the public as a whole. Agins v. City of
Tiburon, 447 U.S. at 260 (taking is determination that
public at large rather than single owner must bear burden
of state’s action); Armstrong v. United States, 364 U.S. 40,
49 (1960) (Takings Clause designed to bar Government
from forcing some alone to bear public burdens); United
States v. Willow River Power Co., 324 U.S. 499, 502 (1945)
(Takings Clause redistributes economic losses inflicted by
public improvements so they fall upon public rather than
individual property owners). The Ninth’s Circuit's
14
attempt to analogize “takings” cases to common-law torts
cannot work.
Significantly, reliance on Section 1983 for a right to a
jury in inverse condemnation would produce anomalous
results. First, as shown above, both direct and inverse
condemnation claims arise directly out of the Takings
Clause of the Fifth Amendment. See supra at pp. 6-8. It is
settled that direct condemnation does not require a trial
by jury. It would be incongruous to require liability issues
in direct condemnation to be tried by a judge, and simul-
taneously allow liability for inverse condemnation to be
tried to a jury.
Second, a property owner cannot sue a state under
Section 1983. Arizonans for Official English v. Arizona, __
U.S. __, 117 S.Ct. 1055, 1069, 137 L.Ed.2d 170 (1997);
Quern v. Jordan, 440 U.S. 332, 338-41 (1979). Actions for
inverse condemnation against a state government are
brought directly under the Fifth Amendment. See Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1006 (1992).
Accordingly, under the Ninth Circuit's rule, a property
owner would have a constitutional right to a jury in an
inverse condemnation case in federal court against a local
public entity, see Monell v. Dept. of Social Services, 436 U.S.
at 690, but not against a state.
15
Il. HEIGHTENED SCRUTINY APPLIES ONLY TO
REGULATION WHERE THE GOVERNMENT
REQUIRES THE DEDICATION OF A POS-
SESSORY INTEREST IN LAND AS A CONDITION
OF APPROVAL.
A. Like Other Social And Economic Regulation,
Land Use Regulation Has Traditionally
Enjoyed A Presumption Of Validity.
Since the New Deal, this Court has consistently
applied the lowest level of scrutiny to determine whether
social and economic regulation advances a legitimate
government interest. See United States v. Carolene Products
Co., 304 U.S. 144, 152 (1938); City of Columbia v. Omni
Outdoor Advertising, 499 U.S. 365, 377 (1991) (“determina-
tion of ‘the public interest’ in the manifold areas of gov-
ernment regulation entails not merely economic and
mathematical analysis but value judgment, and [Parker v.
Brown, 317 U.S. 341 (1943)] was not meant to shift that
judgment from elected officials to judges and juries”);
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976)
(legislative acts adjusting burdens and benefits of eco-
nomic life presumed constitutional; burden is on one
complaining of constitutional violation to establish that
regulation is arbitrary and irrational).”
? In Dolan v. City of Tigard, 512 U.S. 374, 385 (1994), this
Court made clear that heightened scrutiny applies only to
adjudicatory decisions relating to specific permit applications,
rather than legislative regulation. However, it is unclear from
the Ninth Circuit's decision whether, in extending heightened
scrutiny to decisions involving no exaction, the panel intended
to limit such scrutity to adjudicatory actions. Disappointed
permit applicants will no doubt argue that heightened scrutiny
16
Generally, courts review land use regulation like
other economic and social legislation, applying the defer-
ential “rational basis” test. See, e.g., Euclid, 272 U.S. at 388
(if validity of legislative classification for zoning pur-
poses is fairly debatable, the legislative judgment must be
allowed to control); Zahn v. Board of Public Works, 274 U.S.
325, 328 (1927) (court will not substitute its judgment for
that of legislative body charged with primary duty to
determine the question); Berman v. Parker, 348 U.S. 26,
32-33 (1954) (court does not sit to determine whether
particular housing project is or is not desirable); Dodd v.
Hood River County, 136 F.3d 1219, 1230 (9th Cir. 1998)
(“The Courts of Appeals were not created to be ‘the
Grand Mufti of local zoning boards’ ”); Sylvia Dev. Corp.
v. Calvert County, 48 F.3d 810, 828-29 (4th Cir. 1995)
(“Resolving the routine land-use disputes that inevitably
and constantly arise among developers, local residents,
and municipal officials is simply not the business of the
federal courts”); Clajon Production Corp. v. Petera, 70 F.3d
1566, 1578 (10th Cir. 1995) (heightened scrutiny “limited
to the context of development exactions where there is a
physical taking or its equivalent.”). Under this test, the
applies to legislative land use regulations as well. See, ¢.¢.,
Parking Ass'n of Georgia, Inc. v. City of Atlanta, 450 S.E.2d 200 (Ga.
1994), cert. denied, 515 U.S. 1116 (1995) (Thomas, ]., dissenting,
arguing that heightened scrutiny should apply to legislative
conditions of development of real estate). For this reason, San
Francisco and amici cities will assume for purposes of argument
here that the Ninth Circuit’s decision applies to legislative
zoning regulations.
ag A Ml i ate Mie
— ae Mewes « we ee ~
17
courts presume that the government's decision is sup-
ported by the facts. The courts must uphold such regula-
tion unless no reason can be conceived to support it. See,
e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1973);
Goldblatt v. Town of Hempstead, 369 U.S. 590, 594-96 (1962).
The burden is on the party challenging the regulation to
prove that it constitutes an arbitrary regulation of prop-
erty rights. Village of Euclid v. Ambler Realty Co., 272 U.S.
365, 395 (1926); see also Pennell v. San Jose, 485 US. 1
(1988) (ordinance to control rents upheld); Agins v. City of
Tiburon, 447 U.S. at 261-62 (zoning to prevent ill effects of
urbanization upheld); Penn Central Transp. Co. v. New York
City, 438 U.S. 110, 129-30 (1978) (landmark preservation
law upheld as valid exercise of police power); Pennsylva-
nia Coal Co. v. Mahon, 260 U.S. at 413 (great weight given
to judgment of legislature).*
* Notably, the Ninth Circuit’s radical expansion of the
federal courts’ power to make land use policy in Del Monte
Dunes is at odds with other decisions of that Circuit. The Ninth
Circuit has been at the forefront of the federal courts
recognizing that the federal judiciary should only intervene in
local zoning disputes in cases of clear abuses of power. See, ¢. g.,
Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1455 (9th Cir. 1987)
(constitutional claims not ripe because city had not made final
decision regarding acceptable uses); Sinclair Oil Corp. v. County
of Santa Barbara, 96 F.3d 401, 409-10 (9th Cir. 1996), cert. denied,
— US. __, 118 S.Ct. 1386, 140 L.Ed.2d 646 (1998) (district court
should refrain from addressing federal facial taking claim under
Pullman abstention doctrine); Commercial Builders of Northern
California v. Sacramento, 941 F.2d 872 (9th Cir. 1991), cert. denied,
504 U.S. 931 (1992) (upholding impact fee imposed on
commercial development for construction of housing); Dodd v.
Hood River County, 136 F.3d at 1225 (deferring to state’s
judgment in denying building permit).
18
The rational basis test is firmly rooted in the doctrine
of separation of powers between the legislative and
administrative branches of government and the judicial
branch. Penn Central, 438 U.S. at 125; Gorieb v. Fox, 274
U.S. 603, 608 (1926). The Constitution vests the legislative
and executive branches with the authority to make social
and economic policy.
As this Court has consistently recognized in cases
involving the powers of the other branches, the Constitu-
tion limits the role of the judiciary to restraining the
arbitrary exercise of legislative and administrative
authority. The Takings Clause is one such limit. A public
agency is liable for a regulatory taking of private prop-
erty only where the regulation “goes too far.” Pennsylva-
nia Coal, 260 U.S. at 415; First English, 482 U.S. at 316.
B. This Court Has Limited Heightened Scrutiny To
The Special Class Of Land Use Regulation
Cases Where Government Requires A Dedica-
tion Of Property As A Condition Of Project
Approval.
In changing the standard of judicial review of discre-
tionary decisions affecting land use, the Ninth Circuit has
strayed far from this Court's precedent. In Nollan v. Calt-
fornia Coastal Comm'n, 483 U.S. 825 (1987), the Court
developed the “essential nexus” takings test. 483 U.S. at
837. In order to condition approval of a land use develop-
ment on the transfer of a possessory interest in land to
the public, known as an “exaction,” a governmental
entity must show that the transfer “substantially
advances a legitimate state interest.” Id. at 834-37.
gg Oe li sa Mi
19
The phrase “substantially advances a legitimate state
interest” in the context of exactions means that a condi-
tion must “serve[ | the same governmental purpose as [a]
development ban.” Id. at 837. The essential nexus test also
shifts to the government the burden of justifying the
exaction. Id. at 836; Dolan, 512 U.S. at 391 n.8. In contrast,
where the government merely regulates land use, the
property owner still bears the burden of demonstrating
that a regulation effects a taking. Id.
In Dolan, this Court answered “a question left open”
by Nollan. 512 U.S. at 377. The Court quantified the degree
of the nexus required by Nollan between the impact of a
development project and a mitigating condition. The
essential nexus test requires “rough proportionality.” Id.
at 391. Both Nollan and Dolan, however, made clear that
the “essential nexus” and “rough proportionality” tests -
collectively referred to as “heightened scrutiny” — apply
only where the government has required dedications of a
possessory interest in land as a condition of approval.
The Nollan Court found that permit conditions exact-
ing an interest in real property resembled a physical
taking. 483 U.S. at 831. The Court further acknowledged
that governmentally required dedication of land as a
condition of development is entirely uifferent from classic
regulation of land use. See id. at 834-35 (citing cases
involving land use regulation for the proposition that “a
broad range of governmental purposes and regulations”
of land use have been upheld). Justice Scalia concluded
his opinion by highlighting the distinction between use
restrictions and required dedications of possessory inter-
ests:
20
We are inclined to be particularly careful about
the adjective [“substantial”] where the actual
conveyance of property is made a condition to
the lifting of a land-use restriction, since in that
context there is heightened risk that the purpose
is avoidance of the compensation requirement,
rather than the stated police-power objective.
Id. at 841 (emphasis added).
Thus, heightened scrutiny has its origins in the nar-
row class of regulation of adjudicatory exactions on indi-
vidual permit applications allowing the physical invasion
by the public of private property. In Nollan and Dolan,
this Court held that heightened judicial scrutiny of this
special group of cases is necessary to guard against gov-
ernment’s “leveraging” the police power. The Court was
concerned about the potential abuses of governmental
power where the government imposes a condition on
development that allows the government to acquire an
interest in property on behalf of the public, but where the
dedication of the property to the public does not bear a
close relationship to the impact of the proposed project.
Dolan underscored the distinction between pure land
use regulation and conditions requiring the dedication of
a possessory interest in land. Chief Justice Rehnquist
emphasized that the exaction in question compromised
Dolan’s “right to exclude others,” which is “ ‘one of the
most essential sticks in the bundle of rights that are
commonly characterized as property.’ ” 512 U.S. at 384,
quoting from Kaiser Aetna v. United States, 444 U.S. 164, 176
(1979); see also Dolan, 512 U.S. at 393. The Chief Justice
defined the scope of the holdings in Nollan and Dolan as
follows:
——
21
The sort of land use regulations discussed in the
cases just cited [Euclid, Pennsylvania Coal, and
Agins], . . . differ in two relevant particulars
from the present case. First, they involved
essentially legislative determinations classifying
entire areas of the city, whereas here the city
made an adjudicative decision to condition peti-
tioner’s application for a building permit on an
individual parcel. Second, the conditions
imposed were not simply a limitation on the use
petitioner might make of her own parcel, but a
requirement that she deed portions of the prop-
erty to the city.
512 U.S. at 385.
Even in his dissent in Dolan, Justice Stevens pointed
out that Nollan’s “essential nexus” test and Dolan’s “rough
proportionality” test apply only to conditions requiring
the dedication of an interest in land: “The Court has
decided to apply its heightened scrutiny to a single
strand — the power to exclude. .. . ” Dolan, 512 U.S. at 409
(Stevens, J., dissenting). Plainly, a government's ordinary
regulation of land use does not implicate the power to
exclude and does not trigger heightened judicial scrutiny.
In the case of Del Monte, Monterey did not require an
actual conveyance of property. Nor did the government
impose a condition on the approval of a permit. Rather,
this case involves ordinary regulation of land use in the
form of a denial of a permit. This case does not raise the
special concerns that prompted the formulation of
Nollan/Dolan heightened scrutiny, namely, leveraging of
iia a al
22
the police power to acquire an interest in land. Accord-
ingly, the Ninth Circuit erroneously applied heightened
scrutiny.?
C. Shifting Authority For Land Use Regulatory
Policy To The Courts Would Undermine Funda-
mental Principles Of Political Accountability.
Expansion of heightened scrutiny to all land use
regulations adopted by legislative and administrative
agencies would frustrate our most basic democratic tradi-
tions. In Sylvia Development Corp. v. Calvert County, 48
F.3d 810, the Fourth Circuit described the essentially
political nature of land use planning:
Zoning is inescapably a political function.
Indeed, it is the very essence of elected zoning
officials’ responsibility to mediate between
developers, residents, commercial interests, and
those who oppose and support growth and
° Land use regulation effects a taking where the regulation
either: (1) fails to substantially advance a legitimate government
interest, or (2) denies the property owner economically viable
use of his land. Lucas v. South Carolina Coastal Council, 505 U.S. at
1016. This Court first referred to the first prong of the takings
test, that land use regulation must “substantially advance a
legitimate government interest,” in Agins. 447 U.S. at 260. In
establishing this standard, the Agins Court relied on a
substantive due process case, Nectow v. City of Cambridge, 277
U.S. 183, 187-88 (1927). Agins, 447 U.S. at 260. Accordingly, the
“substantially advances” standard had its origins in the
doctrine of substantive due process. In takings cases not
involving exactions of a possessory interest in land, therefore,
the same deferential standard of judicial review that applies to
substantive due process cases - namely, the rational basis test —
should apply.
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23
development in the community. . . . [L]and-use
decisions are a core function of local govern-
ment. . . . Federal courts should be extremely
reluctant to upset the delicate political balance
at play in local land-use disputes.
48 F.3d at 828, quoting Gardner v. Baltimore Mayor & City
Council, 969 F.2d 63, 67-68 (4th Cir. 1992). Local land use
planning “touches a sensitive area of social policy upon
which the federal courts ought not to enter unless no
alternative to its adjudication is open.” C-Y Development
Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir. 1983),
quoting Railroad Commission v. Pullman Co., 312 US. 496,
498 (1941).
The elected representatives serving on amici’s city
councils and boards of supervisors are accountable to
their constituents for the zoning and land use ordinances
that these eleeted-officials enact. These elective bodies,
and the boards and commissions appointed by these
bodies that administratively apply the zoning ordinances
and general plans to individual permits, are also account-
able to the people. Indeed, administrative and legislative
proceedings where these policies are considered and
applied provide an essential forum for members of the
public affected by a development project to express their
views to their elected representatives.
Critically, the universal application of heightened
scrutiny piQposedby+he Ninth Circuit would take the
authority over land use policy traditionally vested in
elected bodies and place ultimate power in the hands of
judges and juries. The effect would be to deny a meaning-
ful voice in matters that have direct and immediate
impact on their property values, safety, economic welfare,
24
and quality of life. The framers of the Constitution could
not possibly have intended this result.
D. Transferring Authority For Land Use Policy To
The Courts Would Cripple The Ability Of
Local Government To Engage In Land Use Plan-
ning.
The transfer of authority over land use policy to the
courts that would result if the Ninth Circuit’s decision is
upheld would not only undermine basic principles of
accountability, but would also devastate the existing sys-
tem by which local governments endeavor to make our
communities safe, clean, well-planned, and attractive,
thereby helping to make our businesses competitive. Sev-
eral examples illustrate the point.
First, in Silicon Valley, located on the Peninsula south
of San Francisco, industrial success has been accom-
panied by complex problems, such as a shortage of hous-
ing, congested traffic, and other environmental hazards.
See Joint VENTURE SILICON VALLEY Network, BENCHMARKING
Siuicon VALLEY’s Economic Vitaurtry AND Quauity OF Lire
(1997).1° These ills threaten to stifle job growth and
reduce prosperity for people in the San Francisco Bay
'0 The vision of Joint Venture Silicon Valley is “to build a
community collaborating to compete globally.” Pampntet, Jomt
VeNTURE Siticon VALLEY (1996) (“JVSV Pamphlet”) at 1. Joint
Venture Silicon Valley is comprised of CEO’s from high-
technology firms and the construction industry, government,
education and the community “who have joined together to act
on regional issues affecting economic vitality and quality of
life.” Id.
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a a ely Se oe,
Ne a ee. See ee ee
25
Area. As the Joint Venture Silicon Valley Network has
reported, the “affordability, variety, and location of hous-
ing affect a region’s ability to maintain a viable econ-
omy ...,” “[clongested roads reduce productivity,” and
the “availability of public transit . . . provides non-auto
workers access to job opportunities.” Id. at 16, 19; see also
Press Revease, Association Or Bay AreA GOVERNMENTS
(ABAG) Dec. 11, 1997, at 4 (“High housing prices and
production of [affordable] housing will remain the most
serious constraint to the economic health of the region”);
Bay Area Futures, ABAG Srupy For San Francisco Dis-
trict Counci. AND URBAN LAND Institute (Nov. 1997) at 38
(long commutes and lack of access to mass transit »
threaten economic vitality of region), 41 (Bay Area traffic
forecast appears “grim”).
In reaction to these social problems, the region has
developed strategic plans to manage growth, while
simultaneously achieving a balance between the rights of
property owners and the interests of the community.
These solutions require the coordination of governmental
agencies throughout the region.
Under existing California law, a development project
that would increase traffic congestion in Silicon Valley
would require an environmental impact report and
undergo a series of public hearings. In this public review
process, planners with experience and expertise in the
transportation issues raised by the project would study
the project and make recommendations to the decision-
maker, such as a planning commission or city council.
With input from the public, the decision-maker would
review the project for harmony with local and regional
26
zoning ordinances and transportation plans. If the project
is inconsistent with these ordinances and plans, the deci-
sion-maker could disapprove the project or condition
approval on the developer’s mitigation of the harmful
impacts of the project on the region’s transportation sys-
tems.
However, under the expansion of heightened scru-
tiny mandated by the Ninth Circuit, once this administra-
tive process is completed, the developer could challenge
a denial of the project or any condition imposed on the
project by filing a takings claim in court. The court's
review of the project would be essentially de novo. The
decisions made by planning commissions and city coun-
cils - decision-makers committed to enforcing local and
regional planning and zoning laws, and who have
reviewed a thorough study of the proposed project for
compliance with policies adopted by democratically
elected officials - would be entitled to no deference.
Instead, a judge or lay jury without experience in local
planning and zoning matters would have the final say on
the project.
These judges and juries do not report their decisions
to the citizens of Silicon Valley affected by the project."'
Under heightened scrutiny, judicial decision-makers
‘1 In the case of Del Monte Dunes, jurors deciding the fate
of property in the City of Monterey could be drawn from as far
away as Ukiah in Mendocino County - 200 miles away. The
views of such persons having no familiarity with the Monterey
Coast would thus become a more significant factor in the
decision ultimately to approve or disapprove the development
than all of the various local and regional plans, local and state
zoning ordinances, and applicable case law.
a a
27
would be free to re-weigh the evidence and substitute
their own, subjective views as to the advantages and
disadvantages of the project, giving no deference to the
exhaustive public review process. Decisions about land-
use and transportation planning would be made on an ad
hoc basis by different decision-makers in every case.
Because the subjective views of a judge or jury would be
the ultimate determinant of land use regulation, consis-
tency and predictability .n community planning would be
lost.'? Moreover, a judge or jury sitting in review of a
single development project is not apt to apply the broader
perspective necessary to achieve solutions to regional
problems.
A second example involves the ability of local com-
munities to restrict adult businesses to districts that are
removed from schools, churches, and other business
catering to children and families - one of the quintessen-
tial prerogatives of local governments. See City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 52 (1986) (cities may
regulate adult theaters through zoning by dispersing or
concentrating them); Miller v. California, 413 U.S. 15 (1973)
(standard for definition of pornography is contemporary
local community standard). Under a system in which
heightened scrutiny were universally applicable, courts
would no longer defer to the decisions of elected public
officials over policies for siting adult businesses.
'2 One of the primary objectives of Joint Venture Silicon
Valley is to “[p]romote[ } consistency and simplification of the
regulatory and permitting processes in Silicon Valley.” JVSC
Pamphlet at 2.
28
As a third example, the rule adopted by the Ninth
Circuit would subject zoning ordinances setting height
limits, set-backs, side-yards, off-street parking, and seis-
mic safety to general attack. Under heightened scrutiny,
the government would be required to make an ndividu-
alized showing for each restriction on each building per-
mit application that the regulation was justified to avoid
a social harm in that particular case. Moreover, judges
and juries would be free to substitute their own judgment
for that of the administrative or legislative agency as to
the basic policy underlying a land use regulation. Vir-
tually all planning and zoning would be vulnerable to
challenge as a taking.
In sum, the expansion of heightened scrutiny would
threaten the separation of powers between the adminis-
trative and legislative branches of government and the
judicial branch, undermine our democratic system with
respect to regulation of land use, and cripple the efforts
of government to plan our communities. As this Court
intended in deciding Nollan and Dolan, heightened scru-
tiny should be limited to the narrow, special class of
adjudicatory exactions involving a possessory interest in
land.
29
CONCLUSION
The decision of the Ninth Circuit should be reversed.
Dated: June 4, 1998
Respectfully submitted,
Loutse H. Renne
City Attorney
City and County of San Francisco
Dennis AFTERGUT
Chief Assistant City Attorney
E.ten FormMan
ANpDrew W. ScHWARTZ
Deputy City Attorneys
ANprew W. ScHWARTZ
Counsel of Record
Attorneys for Amicus Curiae City
and County of San Francisco
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.