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

supreme Court, U.S, |

FILED

fy JUL 2 8 1998

No. 97-1235 ~~ OFFICE OF THE CLERK

“ee In The

Supreme Court of the United States

October Term, 1997

CITY OF MONTEREY,

Petitioner,

VS.

DEL 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 OF

California Association of Realtors®, International

Council of Shopping Centers, National Association of

Realtors®, National Cattlemen’s Beef Association,

California Business Properties Association

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Roger J. Marzulla*

MARZULLA &

MARZULLA

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

July 31, 1998 (202) 822-6760

*Counsel for Amici Curiae

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BEST AVAILABLE COPY!

QUESTIONS PRESENTED

|. Does the “rough proportionality” standard for evaluating

regulatory taking cases, announced by this Court in Dolan v.

City of Tigard, apply to land use restrictions which are the

functional equivalent of exactions, as well as to exactions

themselves?

2. Should this Court abandon the ad hoc factual inquiry in

taking cases, overruling every regulatory taking case since

Penn Central Transp. Co. v. City of New York, thus

eliminating the role of the jury or judge as trier of fact?

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............scesscsscssessessosssesecssereess i

RE Ie FART BRUNE BB Be cccecsccccecccscccvccvsscssccessccscooesseece iv

IDENTITIES AND INTERESTS OF AMICI CURIAE...... 1

BEATEN E OF TEE CARE nnccccccccccccsccccccccssccssconscoseseeses 4

SUMMARY OF THE ARGUMENT .............ccccccccceesceenseees 5

REASONS FOR NOT GRANTING PETITION................ 7

I. THE DOLAN “ROUGH

PROPORTIONALITY” STANDARD IS THE

APPROPRIATE TEST FOR LAND USE

RESTRICTIONS AND PERMIT DENIALS,

WHICH CAN TAKE PROPERTY IN THE

SAME WAY EXACTIONS DO...........ccccccseceeeeees 7

A. The “Rough Proportionality”

Standard Properly Applies the

Fundamental Principle of the Just

Compensation Clause: A Property

Owner Should Not Be Required to Bear

a Disproportionate Burden Which, in

Fairness And Justice, Should Be Borne

By the Public As a Whole .......................00. S

B. Land Use Restrictions Which Impose

a Disproportionate Burden on the

Landowner Constitute a Taking Under

Dolan Whether Imposed by Regulation,

Permit Denial, or Exaction...................0+. 12

TABLE OF CONTENTS - cont.

Il. THE AD HOC FACTUAL INQUIRY

REQUIRED TO DETERMINE TAKING

LIABILITY IS PROPERLY SUBMITTED TO THE

A. The Euclid Deferential Standard of

Review Applies Only to Broad

Challenges to Legislative Enactments,

Not to Fact-Based Adjudicative

Applications of Ordinances to Particular

Ne I winitiertadittienineniitictateninitn 18

B. The o/ » standard of Heightened

Scrur ir’ © cu on an Ad Hoc Factual

Inquii, —.c«ould Not be Replaced in

Favor of the Deferential Standard

Reserved for Facial Challenges................. 21

CE AUIS canscssstinsnscteiatninnsoeuiisiinadabiieenialigeldaianinte 28

TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon, 447 U.S. 225 (1980)........... 7, 10,17

Andrus v. Allard, 444 U.S. 51 (1979).....ccccccceseeseerseneeeeneennenee 9

Arlington Heights v. Metro. Housing Dev. Corp.,

GBD UD, BEB CITED ccececsnceseccenenscensencansssnnvinnpsocenacessvsensess 28

Armstrong v. United States, 364 U.S. 40 (1960)... 9

Ball v. United States, 1 Cl. Ct. 180 (1982).......ccccccccceeeeeeeees 15

Bell v. Town of Wells, 557 A.2d 168 (Me. 1989)................. 15

Bensch v. Metro. Dade County, 952 F. Supp. 790 (1996)....26

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

9S PBB B4B2 CBee Cle. BD DG casccccccrencescessveccsrsscesnessoanssnsonts 5

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

Erlich v. City of Culver City, 12 Cal. 4th 854 (1996)........... 21

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).......passim

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987) .........cccc000 15

Florida Rock Indus., Inc. v. United States, 2\ C1. Ct.

Le a eee eee 15, 20

iV

TABLE OF AUTHORITIES -- cont.

Florida Rock Indus., Inc. v. United States, 79\ F.2d 893

(Fed. Cir. 1986), cert. denied, 479 U.S. 1053 (1987), on

remand, 21 Cl. Ct. 161 (1990), vacated, and remanded, |8

ee COI Gets Be ccitecrisicsiccnnespsttenintnonvceasetienentenpesens 22

Goldblatt v. Hempstead, 369 U.S. 590 (1962).............. 19, 25

Hodel v. Virginia Surface Mining & Reclamation Ass 'n.,

Ee a 20

Int'l Paper v. United States, 282 U.S. 399 (1931) 0.0.0.0... 15

Kaiser Aetna v. United States, 444 U.S. 164 (1979)............ 13

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

RE IIR SS ERS ee SRC ee eae ye Ne 19

Kirby Forest Indus., Inc. v. United States, 467 U.S. |

RSE RIE TA ES ET Ser ve)

Loveladies Harbor v. United States, 28 F.3d 1171

EE Eee Some ey a A a 20

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

Be iattirnithcsknipieitistniaeemmitertidaniainlinnidessecntinal passim

Manocherian v. Lennox Hill Hosp. 84 N.Y .2d 385

SSI PU clanesnnsibiesiciotitacsietiacbataiienihcniecteidininlailethicinitthapanina dactnibtalaias 21

Moore v. City of East Cleveland, 431 U.S. 494 (1977)........ 27

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

ETITTED nsshlpriniinlictinadiilleaiiinliadiaaiteaitatinasiaitilalhiaieliians 7, 15,17, 24

v

TABLE OF AUTHORITIES -- cont.

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

FO CI cntccsstesinsicisenninnieinionepannted 6, 22, 23

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)...9,28

Reahard v. Lee County, 30 F.3d 1412 (11th Cir. 1994)....... 26

Richardson v. City and County of Honolulu, 759 F. Supp.

gk | RR ea ene een en ro 21

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

es Cae Ee cctictcnepinintncniidabticsiininitiniiapicanisiaiin 12, 13

Seawall Assoc's v. City of New York, 74 N.Y .2d 92

IR eS ee 21

United States v. Central Eureka Mining Co., 357 U.S.

vey CUI ncciichicensteintidionsilediasidiesicasastibiaininbedienenpbitiedeimaslapataiadadbian 22

United States v. Cress, 243 U.S. 316 (1917) ............cccccceeeeee 15

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

Be TD ccindiciiiectincinettsineenctinadigititinriiaiadaiidieatneiieatacmniaaen 19, 20

Whitney Benefits, Inc. v. United States, 18 Cl. Ct. 394 (1989),

modified, 20 Cl. Ct. 324 (1990), aff'd, 926 F.2d 1169 (Fed.

Cir. 1991), cert. denied, 502 U.S. 952 (1991)............004 15

Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed.

Cir. 1991), cert. denied, 502 U.S. 952 (1991).................. 20

Williamson County Reg 'l Planning Comm'n v. Hamilton

EE; SES We CPE ee icanntnistaniaitiitniniiaibidcinmaabiiticinndiagis 26

vi

TABLE OF AUTHORITIES - cont.

Yuba Natural Resources v. United States, 10 C1. Ct. 486

OTHER AUTHORITIES

John H. Delaney, Citizens Access to Justice Act of 1997:

Hearings Before the Judiciary Committee of the United

States Senate, 106th Cong. (Oct. 7, 1997).........cccccceeeees 27

Robert J. Hopperton, The Presumption of Validity in

American Land-Use Law: A Substitute for Analysis, A

Source of Significant Confusion, 23 B.C. Envtl. Aff. L.

I ta elena ahha 26

Keith Kraus, Recent Developments: Dolan v. City of Tigard:

Property Owners Win the Battle but May Still Lose the

War, 48 Wash. U. J. Urb. & Contemp. L. 275

SI nchcnnesinusiaesiititensiviitniaatapiantitienpiaiciiantaindtiiimguniitiineneiion 12

Earl M. Maltz, The Prospects for a Revival of Conservative

Activism in Constitutional Jurisprudence, 24 Ga. L. Rev.

I inisierictunstinicibasincenichccctntinntadienenetibtsitiiaansiiianedbindigtinaai 24

Bernard H. Siegan, Property and Freedom: The Constitution,

The Courts, and Land-Use Regulation 149 (1997).......... 11

Vii

Pursuant to Rule 37.2 of the Rules of this Court, amici curiae

submit this brief is support of Respondents.

INDENTITIES AND INTERESTS

OF AMICI CURIAE

California Association of Realtors® (C.A.R.) is a voluntary

trade association representing the interests of approximately

90,000 persons licensed as real estate brokers and

salespersons by the State of California. C.A.R. is actively

engaged in promoting and establishing reasonable standards

to govern the transfer of real estate and the protection of

private property rights. C.A.R. pursues its objectives through

a variety of methods, including education of its members,

creation of standard form agre -ments for use in real estate

transactions, lobbying, providing legal advice to its members,

and participation as amicus curiae in relevant court cases.

California Business Properties Association is a non-profit

organization which currently represents the largest

commercial industrial real estate consortium in California

with about 5,000 members. Its membership includes real

"No counsel for either party authored this brief amici curiae, either in

whole or in part. Furthermore, no persons other than amici curiae (their

Ee NE TT EN He renee

estate developers, builders, lenders, commercial property

owners, real estate brokers, major retailers and professional

service corporations, including the California chapters of the

National Association of Industrial and Office Projects, the

Associated Builders and Contractors of California, the

Society of Industrial and Office Realtors, Commercial Real

Estate Women, the Institute of Real Estate Management and

the Commercial Industrial Development Association.

International Council of Shopping Centers, Inc. is the

trade association for the shopping center industry. It has over

38,000 members worldwide, over 33,500 in the United States

including approximately 6,000 members in the State of

California. These members include developers, owners,

lenders, retailers, and all others having a professional interest

in the shopping center industry. These individuals own or

operate virtually all of the 43,000 shopping centers in the

United States and 6,000 centers in the State of California. In

1997, these centers accounted for $1,019.3 billion in retail

sales nationally representing 53% of total retail non-

automotive sales, and $111.3 billion in sales in the State of

California, representing 51% of total non-automotive retail

sales. These centers employed over 10 million people

members or counsel) contributed financially to the preparation of this

brief.

to

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A —

nationally and over one million in the State of California,

representing in both cases about 8% of non-farm employees.

National Association of Realtors® (NAR) is a non-profit

professional association incorporated in Illinois. NAR’s

membership includes 700,000 individuals involved in all

aspects of the real estate profession, including brokerage,

management, appraisal, and counseling. Members are

engaged in the development and sale of residential,

commercial and industrial real estate, including activities that

are subject to the regulation challenged in this litigation.

NAR is also a champion of the rights of real property owners.

Through its participation in court cases before this Court and

in others as well, NAR has long sought to preserve for

property owners the rights guaranteed to them by the Fifth

Amendment to the Constitution.

National Cattiemen’s Beef Association is the marketing

organization and trade association for America’s one million

cattle farmers and ranchers. NCBA is a consumer-focused,

producer-directed organization representing the largest

segment of the nation’s food and fiber industry. NCBA

works to achieve the vision of “[a] dynamic and profitable

beef industry, which concentrates resources around a unified

plan, consistently meets consumer needs and increases

demand.” The NCBA Dues Division oversees policy-

making, governmental affairs and related activities. In this

role, NCBA is a trade association with about 40,000

individual members, 46 state cattle associations and 27

national breed organizations. Together these organizations

represent more than 230,000 cattle breeders, producers, and

feeders. NCBA works to advance the economic, political

and social! interests of the U.S. cattle business and to be an

advocate for the cattle industry’s policy positions and

economic interests.

STATEMENT OF THE CASE

This action arises out of Petitioner’s denial of

permission to develop a 37.6-acre oceanfront parcel located

within the City of Monterey, California. Respondent filed an

action under 42 U.S.C. § 1983, asserting (among other

claims) that Petitioner, acting under color of state law, had

denied to Respondent the right to just compensation for

private property that is taken for public use. The regulatory

taking claim was tried to a jury, which determined that

Respondent had proved by a preponderance of the evidence

that the City’s action either did not substantially advance a

legitimate governmental interest, or that it denied to

Respondent all economically viable use of the property.

At trial, Respondent presented evidence “establishing

that the City progressively denied use of portions of the

Dunes until no part remained available for a use inconsistent

with leaving the property in its natural state.” Del Monte

Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422,

1433 (9th Cir. 1996). The City denied use of the western

one-third of the property “because the City wanted to retain

that property for public beach use and access,” imposed view

shed requirements so that the development could not be seen

from the public highway but must be located “in the lowest

elevated area of the property, also called the ‘bowl’ area,”

and, finally, “denied it any use of the bow! area because of

the risk of damage to buckwheat plants, the natural habitat of

the endangered Smith’s Blue Butterfly.” De/ Monte Dunes,

95 F.3d at 1433-34.

Petitioner filed various post-trial motions for New

Trial and Judgment Notwithstanding the Verdict, all of which

were denied, and this Petition for Writ of Certiorari followed.

SUMMARY OF THE ARGUMENT

1. A prohibition of a certain use can transfer an

interest in land from private to public ownership as

effectively as a deed. From the points of view of both the

owner and the public, it matters little whether a conservation

easement is conveyed to the city or the land is required to be

left in its natural state for the benefit of endangered species,

the coastal environment, or as a public view shed. Since

each of these purposes could be accomplished equally by

deed or by negative restriction on land use, the constitutional

principle of rough proportionality announced by this Court in

Dolan vy. City of Tigard, 512 U.S. 374 (1994), a case of

required dedications, applies equally to land use restrictions

having the same effect (if not the same legal form) as a

dedication. The rule announced in Dolan is but a restatement

of the fundamental premise underlying the just compensation

clause: a single owner should not be required to bear a public

burden which, in fairness and justice, should be borne by the

public as a whole.

To abandon this standard of reasonableness and

justice would be to desert the Fifth Amendment’s promise

that, where private property is taken for public use, just

compensation will be paid.

2. In determining whether a regulatory taking has

occurred, the ad hoc factual inquiry required by the precedent

of this Court may be performed by a jury examining the

effects of the particular restrictions upon the specific land at

issue. To convert this inquiry into an issue of law,

independent of all factual questions, would require this Court

to overrule every regulatory taking case since Penn Central

Transp. Co. v. New York City, 438 U.S. 104, 124 (1978), and

to adopt a rule that would effectively eliminate judicial

review of individual land use cases. This Court rejected this

precise argument in Nollan v. California Coastal Council,

483 U.S. 825 (1987), and Dolan, supra, and should do so

here as well.

3. Although Petitioner claims that continuing to

apply the rule, first announced in Agins v. City of Tiburon,

447 U.S. 225 (1980), that a landowner who proves by a

preponderance of evidence that the city’s action has either

deprived the property of all economically viable use or that it

fails to substantially advance a legitimate government

interest will transfer zoning authority to federal courts, no

evidence of this doomsday prophesy is presented. Rather,

statistics demonstrate that less than 15% of regulatory taking

claims filed in federal court ever make it to judgment, and

that the majority of the remainder are decided in favor of the

city. Accordingly, no reason for overruling Agins, see supra,

Nollan, see supra, Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), and Dolan, see supra, appears, and the

judgment below should be affirmed.

REASONS FOR NOT GRANTING PETITION

I. THE DOLAN “ROUGH PROPORTIONALITY”

STANDARD IS THE APPROPRIATE TEST FOR

LAND USE RESTRICTIONS AND PERMIT DENIALS,

WHICH CAN TAKE PROPERTY IN THE SAME

WAY EXACTIONS DO.

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

Court described a “rough proportionality” standard under

which the burden assumed by the landowner would be

compared with the impact of the development in determining

whether the landowner was being asked to bear a

disproportionate burden which, in fairness and justice, should

be borne by the public as a whole. Factually, that case

involved a requirement that the owner dedicate by deed a

portion of her property to public use. Nothing in that

opinion, nor in logic, however, limits the rough

proportionality principle to cases where an outright

conveyance of legal title is required, nor should that opinion

be read to permit municipalities to evade the rough

proportionality standard by creating restrictions which

unconstitutionally deprive the owner of all legitimate use of

land but otherwise differ in that they lack the legal formality

of a transfer of legal title.

A land use restriction which operates as the functional

equivalent of an exaction of part or all of the land is therefore

properly evaluated under the Dolan “rough proportionality”

rule.

A. The “Rough Proportionality” Standard

Properly Applies the Fundamental Principle of the

Just Compensation Clause: A Property Owner

Should Not Be Required to Bear a

Disproportionate Burden Which, in Fairness And

Justice, Should Be Borne By the Public As a

Whole.

The Constitution’s just compensation requirement

“[is] designed to bar Government from forcing some people

alone to bear the burdens which, in all fairness and justice,

should be borne by the public as a whole.” Armstrong v.

United States, 364 U.S. 40, 49 (1960). See also Kirby Forest

Indus., Inc. v. United States, 467 U.S. 1, 14 (1984) (“The

principle that underlies this doctrine is that, while most

burdens consequent upon government action undertaken in

the public interest must be borne by individual landowners as

concomitants of ‘the advantage of living and doing business

in a civilized community,’ some are so substantial and

unforeseeable, and can so easily be identified and

redistributed, that ‘justice and fairness’ require that they be

borne by the public as a whole.” )(quoting Andrus v. Allard,

444 U.S. 51, 67 (1979) quoting Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 422 (1922)(Brandeis, J., dissenting)).

The Dolan “rough proportionality” standard balances

the legitimate community interest in land use planning with

the constitutional right of the landowner to avoid bearing a

disproportionate share of public needs and requirements.

We think a term such as ‘rough

proportionality’ best encapsulates what we

hold to be the requirement of the Fifth

Amendment. No precise mathematical

calculation is required, but the city must

make some sort of _ individualized

determination that the required dedication is

related both in nature and extent to the

impact of the proposed development.

Dolan, 512 U.S. at 391.

The Dolan rule is predicated on the fundamental

principle, described in Lucas, that the landowner has the

constitutional right to make all uses of his property which are

included within his title under background principles of

property law, such as state law. Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1027 (1992). The state may

not arbitrarily prohibit such a “logically antecedent” use

unless it can prove that the prohibition “substantially

advances a legitimate government interest,” Dolan, 512 U.S.

374, 385 (1994) quoting Agins v. Tiburon, 447 U.S. 255, 260

(1980)), within the police power. In other words, the city

bears the burden of identifying the harm which the proposed

project is likely to cause, then to tailor its restrictions to

address that threatened harm. The restriction, so tailored,

will impose upon the landowner a burden which is not

disproportionate to the impact of his development, but 1s

roughly proportional to it.

10

As Professor Siegan points out:

The problem presented in Dolan is a

common one under zoning. Municipalities

impose regulations and exactions on the use

and development of property that are

intended to offset the resulting burdens that

the public sustains. In all fairness, the

owner should only be responsible for

remedying those burdens he creates. An

excessive restraint or exaction is a

confiscation veiled as an exercise of the

police power.

Bernard H. Siegan, Property and Freedom: The Constitution,

The Courts, and Land-Use Regulation 149 (1997).

To ensure that the landowner was not required to bear

a disproportionate share of the public burden, the Dolan court

employed a heightened level of judicial scrutiny to the

reasons put forward by the city in justification of the required

exactions:

The Court’s decision in Dolan properly

balances the state’s power to regulate land

use and an individual’s property rights.

The decision also may be viewed as

increasing the level of judicial scrutiny

focused on development exaction schemes.

The Court adopted the ‘rough

proportionality’ standard instead of the

widely-used ‘reasonable __ relationship’

standard because the Court was concerned

with the proper level of judicial scrutiny.

Dolan requires courts to scrutinize the

relationship between required exactions and

the adverse impacts of proposed

developments. Such scrutiny is particularly

appropriate when the local government has

a direct financial interest in the outcome of

the decision.

Keith Kraus, Recent Developments: Dolan v. City of Tigard:

Property Owners Win the Battle but May Still Lose the War,

48 Wash. U. J. Urb. & Contemp. L. 275, 290 (1995).

In short, Dolan makes clear that a landowner may be

deprived of an otherwise legitimate land use only if the city

can justify the deprivation as a remedy for some adverse

impact of her project, and can demonstrate that the

magnitude of that deprivation is quantitatively proportionate

~ albeit only “roughly” so — to the magnitude of the impact.

Otherwise, the exaction is a confiscation of private property

for public use, requiring just compensation.

B. Land Use Restrictions Which Impose a

Disproportionate Burden on the Landowner

Constitute a Taking Under Dolan Whether

Imposed by Regulation, Permit Denial, or

Exaction.

The underlying premise of so-called regulatory

takings jurisprudence is the “essential similarity of regulatory

‘takings’ and other ‘takings’.” San Diego Gas & Electric

Co. v. City of San Diego, 450 U.S. 621, 651 (1981)(Brennan,

J., dissenting). That similarity lies not in the transfer of title

12

to the government, for often the restriction does not transfer

title at all. See, e.g., Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992); Kaiser Aetna v. United

States, 444 U.S. 164 (1979). Rather, it lies in the fact that

[plolice power regulations such as zoning

ordinances and other land-use restrictions

can destroy the use and enjoyment of

property in order to promote the public good

just as effectively as formal condemnation

or physical invasion of property. From the

property owner’s point of view, it may

matter little whether his land is condemned

or flooded, or whether it is restricted by

regulation to use in its natural state, if the

effect in both cases is to deprive him of all

beneficial use of it. From the government’s

point of view, the benefits flowing to the

public from preservation of open space

through regulation may be equally great as

from creating a wildlife refuge through

formal condemnation or increasing

electricity production through a dam project

that floods private property.

San Diego Gas, 450 U.S. at 652 (Brennan, J., dissenting).

Lucas v. South Cai olina Coastal Council provides a

dramatic example of a restriction on land use which imposed

a disproportionate burden on the landowner without requiring

that he deed the property to the government. Lucas, 505 U.S.

at 1019 (1992).

13

As this Court said in Lucas, citing with approval

portions of Justice Brennan’s San Diego Gas dissent,

[A}ffirmatively supporting a compensation

requirement, is the fact that regulations that

leave the owner of land without

economically beneficial or productive

options for its use—typically, as here, by

requiring land to be left substantially in its

natural state—carry with them a heightened

risk that private property is being pressed

into some form of public service under the

guise of mitigating serious public harm.

Lucas, 505 U.S. at 1018.

A disproportionate restriction on land use, too, may

constitute a taking, even where the owner is left with other

substantial uses.’ The touchstone in such analyses is

proportionality to the impact of the proposed project, not

conveyance of legal title. For

[t]he many statutes on the books, both state

and federal, that provide for the use of

eminent domain to impose servitudes on

private scenic lands preventing

developmental uses, or to acquire such lands

altogether, suggest the practical equivalence

in this setting of negative regulation and

appropriation.

* The Court in Dolan expressly acknowledged that Mrs. Dolan would

have been able to derive economic use from her property despite the

permit conditions, but nevertheless the Court held that those conditions

worked a taking.

4

Lucas, 505 U.S. at 1018-19.

Thus, it is not essential (as occurred in Nollan) that

the owner be required to deed away his right to exclude the

public in order to effectuate a taking of a private beach; in

Bell v. Town of Wells, 557 A.2d 168, 176-77 (Me. 1989), the

Supreme Court of Maine came to a virtually identical result

on the basis of a legislatively-created right to public access.

Accordingly, it was the inability of the owner to use its

property (on the basis of flood hazard), not a requirement that

the flood plain be deeded to the public, that gave rise to the

taking in First English Evangelical Lutheran Church of

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

Appurtenances to land, such as water rights, may be

taken without condemnation or conveyance, simply by re-

directing the flows of navigable waters. See, e.g., United

States v. Cress, 243 U.S. 316 (1917) and Jnt’l Paper v.

United States, 282 U.S. 399 (1931) (both involving riparian

right to undiminished flow) and Ball v. United States, | Cl.

Ct. 180 (1982) (involving diminished ground water flows

resulting from excavation). Mineral rights may also be taken

by negative restrictions, even though no conveyance of the

right is exacted. See Whitney Benefits, Inc. v. United States,

18 Cl. Ct. 394 (1989), modified, 20 Cl. Ct. 324 (1990), aff'd,

926 F.2d 1169 (Fed. Cir. 1991), cert. denied, 502 U.S. 952,

(1991) (coal), Florida Rock Indus., Inc. v. United States, 2\

15

Cl. Ct. 161 (1990) (limestone), Yuba Natural Resources v.

United States, 10 Cl. Ct. 486 (1986) (gold).

No reason appears why a restriction on the use of land

in order to provide endangered species habitat, or a public

beach, or to protect the natural coastal environment, should

be analyzed differently from an exaction requiring the

conveyance of a conservation easement to the government.

In both cases the landowner is equally deprived of the

beneficial use of the property and the government obiains the

benefits flowing from that deprivation (e.g., public access,

habitat, or open space in its natural state).°

Indeed, the “roug,: rroportionality” standard set forth

in Dolan can be viewed as merely an elaboration of the basic

Armstrong principle of balancing the burdens so that one

property owner is not required to bear a disproportionate

share of the needs of the community. By limiting restrictions

* Conversely, there are substantial reasons why the “rough

proportionality” test should apply to land use restrictions. Consider, for

example, the familiar case of a proposed development which raises the

prospect of imposing certain burdens on public facilities, such 2

increased traffic, a need for larger public school capacity, or other like

additional pressures on public infrastructure, which burdens could be

mitigated by an appropriately commensurate financial contribution or

property dedication by the developer. It would defy all logic and deny

justice if the relevant regulatory body could avoid the constitutional

requirement of Dolan that the contribution or dedication required of the

developer be “roughly proportional” to the burdens created by simply

rejecting the project outright, with no threat of the latter action being

deemed a taking. Yet that would be precisely the opportunity available to

16

on land use to those reasonably addressing the impacts

created by the particular development in question, this Court

highlights a fundamental premise of fairness and justice—

that private property should not be taken by government

without just compensation simply because a public need

exists—which lies at the heart of the Fifth Amendment.

Il. THE AD HOC FACTUAL INQUIRY REQUIRED

TO DETERMINE TAKING LIABILITY IS PROPERLY

SUBMITTED TO THE JURY.

Petitioner’s contention that liability for a regulatory

taking of property without just compensation presents an

issue of law, to be determined by the court under the highly

deferential standard of review, has been repeatedly rejected

by this Court in cases such as Agins, 447 U.S. 225 (1980),

Nollan, 483 U.S. 825 (1987), Lucas, 505 U.S. 1003 (1992),

and reiterated by this Court just four years ago in Dolan v.

City of Tigard, 512 U.S. 374 (1994). Petitioner fails to

recognize that the rule in cases involving broad challenges to

an entire ordinance (“facial challenges”) is distinct from the

rule applicable in cases asserting that the concrete application

of that ordinance results in an unconstitutional taking of

private property without just compensatiun (“as applied

the regulatory body if, as petitioner and amici assert, Dolan did not apply

to land use restrictions, but only to exactions.

17

challenges”). Since Petitioner presents no cogent reason why

this Court should take the extraordinary step of reversing its

holdings in Agins, Nollan, Lucas, and Dolan, and because

such a standard would have extraordinarily dire

consequences for property owners, this invitation to overrule

those decisions should be rejected.

A. The Euclid Deferential Standard of Review

Applies Only to Broad Challenges to Legislative

Enactments, Not to Fact-Based Adjudicative

Applications of Ordinances to Particular Uses of

Property.

Where an entire ordinance is challenged on its face,

without reference to a specific application of the ordinance to

any particular property, this Court has consistently employed

a deferential standard of review. In the case which Petitioner

claims is controlling here, Euclid v. Ambler Realty Co., 272

U.S. 365 (1926), for exampie, this Crurt upheld a town’s

comprehensive zoning ordinance against a facial challenge

that it was “arbitrary and unreasonable, having no substantial

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

welfare.” Euclid, 272 U.S. at 395. In so doing the Euclid

Court was careful to explain the context of its holding:

[W]here the equitable remedy of injunction

is sought, as it is here, not upon the ground

of a present infringement or denial of a

specific right, or of a particular injury in

18

process of actual execution, but upon the

broad ground that the mere existence and

threatened enforcement of the ordinance, by

materially and adversely affecting values

and curtailing the opportunities of the

market, constitute a present and irreparable

injury, the court will not scrutinize its

provisions, sentence by sentence, to

ascertain by a process of piecemeal

dissection whether there may be, here and

there, provisions of a minor character, or

relating to matters of administration, or not

shown to contribute to the injury complained

of, which, if attacked separately, might not

withstand the test of constitutionality.

Euclid, 272 U.S. at 395. See also, e.g., Keystone Bituminous

Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987)

(requirement that fifty percent of subterranean coal remain in

place to prevent subsidence not a taking as a matter of law);

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

121 (1985)(wetland regulations not a taking as a matter of

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

(regulation of rock quarries not a taking as a matter of law).

The Euclid Court distinguished the case before it

from a possible future challenge to the specific application of

the ordinance to a particular property:

It is true that when, if ever, the provisions

set forth in the ordinance in tedious and

minute detail, come to be concretely applied

to particular premises, including those of the

19

appellee, or to particular conditions, or to be

considered in connection with specific

complaints, some of then, or even many of

them, may be found to be clearly arbitrary

and unreasonable.

Euclid, 272 U.S. at 395.

The difference between the “facial” and “as applied”

standards for analyzing constitutional challenges to land use

regulations is illustrated by comparing pairs of cases brought

under the same statutes. For example, in Hodel v. Virginia

Surface Mining & Reclamation Ass'n., Inc., 452 U.S. 264

(1981), this Court upheld the Surface Mining Control and

Reclamation Act against a facial taking challenge, while in

Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed.

Cir. 1991), cert. denied, 502 U.S. 952 (1991), the United

States Court of Appeals for the Federal Circuit upheld a

money judgment for the taking of particular coal deposits

under the same statute. Likewise, in United States v.

Riverside Bayview Homes, 474 U.S. 121 (1985), this Court

upheld the wetland regulations of the Clean Water Act

against a facial taking challenge, while in Florida Rock

Indus., Inc. v. United States, 21 Cl. Ct. 161 (1990) and

Loveladies Harbor v. United States, 28 F.3d 1171 (1994), the

United States Court of Federal Claims imposed liability for

an unconstitutional taking under the wetland regulations,

following the kind of ad hoc factual analysis required in an

20

“as applied” taking case. As the Euclid Court suggested,

even though an ordinance or statute may be upheld under the

deferential standard, this does not mean that the same

deferential standard should be applied when the regulation

“comes to be concretely applied to particular premises,”

Euclid, 272 U.S. at 395.4

B. The Dolan Standard of Heightened Scrutiny

Based on an Ad Hoc Factual Inquiry Should Not

be Replaced with the Deferential Standard

Reserved for Facial Challenges.

¥ Indeed, state courts have not felt themselves bound by the “deferential

standard of review,” even in cases asserting facial challenges to

ordinances which fail to substantially advance a governmental purpose.

In Seawall Assoc’s v. City of New York, 74 N.Y.2d 92 (N.Y. 1989), New

York struck down a ban on the conversion of single room occupancy

(SRO) units, intended to preserve availability of housing for the

homeless, on the ground that experience demonstrated that the ban was

ineffective. “The heavy exactions imposed by Local Law No. 9 must

‘substantially advance’ its putative purpose of relieving homelessness.

No such showing of this required ‘close nexus’ has been made. Rather,

the nexus between the obligations placed on SRO property owners and

the alleviation of the highly complex social problem of homelessness is

indirect at best and conjectural. Such a tenuous connection between

means and ends cannot justify singling out this group of property owners

to bear the costs required by the law toward the cure of the homeless

problem.” Seawall, 74 N.Y.2d at 112. See also Richardson v. City and

County of Honolulu, 759 F. Supp. 1477 (D. Haw. 1991)(rent control

ordinance, invalidated because it actually benefited sublessors, not

renters); Manocherian v. Lennox Hill Hosp. 84 N.Y .2d 385, 394 (1994)

(“The preservation of this Manhattan Upper East Side housing enclave

for this privileged entity's benefit, albeit one engaged in a laudable and

necessary eleemosynary health service function, cannot masquerade as

general welfare legislation.”); Erlich v. City of Culver City, 12 Cal. 4th

854 (1996)(monetary exaction as a condition of building approval is a

taking).

21

In contrast to the broad, general challenges to entire

statutes or ordinances, in cases such as Euclid and Goldblatt,

this Court has “frequently observed that whether a particular

restriction will be rendered invalid by the government's

failure to pay for any losses proximately caused by it depends

largely ‘upon the particular circumstances [in that] case.’”

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

124 (1978)(alterations in original)(quoting United States v.

Central Eureka Mining Co., 357 U.S. 155, 168 (1958)).

Justice Scalia, writing for the Court in Lucas v. South

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

the paradigm for takings analysis set forth by Justice Brennan

in Penn Central: “In 70-odd years of succeeding ‘regulatory

takings’ jurisprudence, we have generally eschewed any ‘set

formula’ for determining how far is too far [for a regulation

to go before it will be recognized as a taking], preferring to

‘engage in ...essentially ad hoc, factual inquiries.’” Lucas,

505 U.S. at 1015 (quoting Penn Central, 438 U.S. at 124).

See also, Florida Rock Industries, Inc. v. United States, 79\

F.2d 893 (Fed. Cir. 1986), cert. denied, 479 U.S. 1053

(1987), on remand, 21 Cl. Ct. 161 (1990), vacated, and

remanded, 18 F.3d 1560, 1564 (Fed. Cir. 1994)(“One

formula that has emerged and has been repeated in several

cases requires that the court balance several pragmatic

considerations in making its regulatory takings

22

impact of the regulation on the claimant, the extent to which

the regulation interferes with investment-backed

expectations, and the character of the Government action.”’).

In this case, Petitioner contends for nothing less than

the abandonment of the ad hoc factual inquiry in favor of the

deferential standard for facial challenges applied in Euclid,

272 U.S. 365, 386-87 (1926). To do this, the Court would be

required to overrule every taking decision since Penn

Central, supra, substituting instead a standard for “as

applied” challenges to the specific application of regulations

to particular property that even the Euclid court itself

expressly declined to adopt. Under this standard, cases such

as the present one would present no issues of fact to be

submitted to the jury but only the bare issue of law whether

the denial was arbitrary. Conflicting evidence would be

ignored, and the Court would be presented only with the

facial question in each instance of whether a city could deny

development on police »ower grounds, without reference to

the particular facts of the case. Under such a standard, the

Court would be left with very little discretion to rule other

than in favor of the city in every case. To adopt the standard

that petitioner seeks would thus amount to denying property

owners the right to essentially any meaningful review of

local land use decisions at all, and give regulators unbridled

23

discretion to limit or to eviscerate completely the rights of

property owners to use their property in economically

productive ways.

Petitioner's argument here was directly rejected by

the majority in Nollan v. California Coastal Comm'n, 483

U.S. 825 (1987), finding voice in the dissent of Justice

Brennan:

Contrary to Justice Brennan’s claim, our

opinions do not establish that these

standards are the same as those applied to

due process or equal protection claims. To

the contrary, our verbal formulations in the

takings field have generally been quite

different. 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

~ Objective.”

Nollan, 483 U.S. at 835, n.3 (citations omitted).

Again in Dolan v. City of Tigard, the town made the

same losing argument that the Euclid standard for facial

challenges should be used. Distinguishing Euclid v. Ambler

“At the same time, however, the majority declined to adopt the

deferential rational basis test as the standard against which the imposition

of the condition was to be tested; instead the opinion concluded that the

easement could only be required if it would ‘substantially advance’ a

legitimate governmental interest.” Earl M. Maltz, The Prospects for a

24

Realty Co., 272 U.S. 365 (1926), as well as Goldblatt v.

Hempstead, 369 U.S. 590 (1962)(which Petitioner here also

cites), the Dolan Court stated: “[T]hey involved essentially

legislative determinations classifying entire areas of the city,

whereas here the city made an adjudicative decision to

condition Petitioner’s application for a building permit on an

individual parcel.” Dolan, 512 U.S. at 385.

To ensure that lower courts would not be confused

about the heightened level of judicial scrutiny applicable in

individual adjudicative land use cases, the Dolan Court even

rejected the phrase “reasonable relationship” employed by

most state courts “because the term . . . seems confusingly

similar to the term ‘rational basis’ which describes the

minimal level of scrutiny under the Equal Protection Clause

of the Fourteenth Amendment.” Dolan, 512 U.S. at 391.

Responding to Justice Stevens’ dissent from the use of

heightened scrutiny, the majority admitted that:

He is correct in arguing that in evaluating

most generally applicable = zoning

regulations, the burden properly rests on

the party challenging the regulation to

prove that it constitutes an arbitrary

regulation of property rights. Here, by

contrast, the city made an adjudicative

decision to condition petitioner's

Revival of Conservative Activism in Constitutional Jurisprudence, 24 Ga.

L. Rev. 629, 664-65 (1990).

25

application for a building permit on an

individual parcel. In this situation, the

burden properly rests on the city.°

Dolan, 512 U.S. at 391 (citations omitted).

Moreover, Petitioner’s cry that the Nollan/Dolan

standard will result in the federal courts becoming substitute

city councils in zoning matters is simply unsupported. First,

in the eleven years since this Court’s decision in Nollan

established that the city carries the burden of proving that the

restriction substantially advances a legitimate government

purpose, no such excessive federal court involvement has

resulted. Second, one good reason for limited federal court

involvement in local land use matters is the stringent ripeness

requirement under Williamson County Reg 'l Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), requiring

multiple development and permit applications to ensure

concreteness, and further requiring in most cases that the

landowner pursue his state court inverse condemnation

remedy before filing in federal court. See, e.g.. Reahard v.

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

Dade County, 952 F. Supp 790 (1996). Third, the burden

* "These opinions involve a significantly heightened judicial scrutiny and.

as was true in Lucas, even the suggestion that legislative findings deserve

virtually no presumption of validity.” Robert J. Hopperton, The

Presumption of Validity in American Land-Use Law: A Substitute for

Analysis, A Source of Significant Confusion, 23 B.C. Envtl. Aff. L. Rev.

301, 391 (1996).

26

imposed on the landowner of proving that the restriction

denies him all economically viable use or fails to advance

substantially a legitimate governmental purpose is

significant. The plain fact remains that, in the vast majority

of cases, the city’s land use decision is upheld against federal

court challenge under the No/lan/Dollan standard.’

Finally, although Petitioner claims some special

status for land use regulation under the Constitution (Pet. Br.

20), no reasons in the Constitution or case law support this

bold assertion. The plain fact is that land use regulation, like

other municipal actions, is exercised subject to the limitations

imposed by the Bill of Rights—including the Just

Compensation Clause. Where application of a land use

ordinance violates constitutional protections, it will be struck

down—whether the violation found is of the right to free

assembly (Moore v. City of East Cleveland, 431 U.S. 494

(1977)), the right to equal protection (Arlington Heights v.

" “The lower federal courts are overwhelmingly predisposed to dismiss

federal land use cases on jurisdictional grounds, such as abstention and

ripeness. In the context of H.R. 1534, my law firm prepared a survey

showing that over 80% of the takings cases originating in the U.S. district

courts between 1990-97, were dismissed before the merits were ever

reached. For those property owners who could afford an appeal, the

survey showed that more than half of the takings claims were still

dismissed. Of those appellate cases in the survey that were found ripe,

60% were remanded for more litigation on the merits.” Citizens Access

to Justice Act of 1997: Hearings Before the Judiciary Committee of the

United States Senate, 106th Cong. (Oct. 7, 1997)(testimony of Prof. John

27

Metro. Housing Dev. Corp., 429 U.S. 252 (1977)), or the

right to just compensation. As Justice Holmes pointed out

more than seventy-five years ago, “[A] strong public desire

to improve the public condition is not enough to warrant

achieving the desire by a shorter cut than the constitutional

way of paying for the change.” Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 416 (1922).

CONCLUSION

For all of these reasons, amici curiae urges this Court

to affirm the decision below.

Respectfully submitted,

Roger J. Marzulla

Marzulla & Marzulla

1350 Connecticut Ave., N.W.

Suite 410

Washington, DC 20036

202-822-6760

Counsel for Amici Curiae

July 31, 1998 Marzulla & Marzulla

J. Delaney )(referring to a survey of takings decisions between 1990-97

completed by Linowes and Blocher LLP in Silver Spring, MD)

28