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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A18

## Record

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

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A18. Public record. Not legal advice.