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

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## Record

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

## Text

Supreme Court of the United States
October Term, 1997

¢

CITY OF MONTEREY,

Petitioner,

DEL MONTE DUNES AT MONTEREY, LTD., and
MONTEREY-DEL MONTE DUNES CORPORATION

Respondents.

7

¢

On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

e

BRIEF OF THE INSTITUTE FOR JUSTICE AS
AMICUS CURIAE IN SUPPORT OF RESPONDENTS

¢

RicHarp A, Epstein INSTITUTE FOR JUSTICE
1111 East 60th Street *Wituiam H. MEttor
Chicago, IL 60637 Cunt Bouick
(773) 702-9494 Scott G. Buttock
Suite 200
1717 Pennsylvania Ave., NW
Washington, DC 20006
(202) 955-1300
* Counsel of Record

PRINTING CO., (600) 225-6964
OR CALL COLLECT (a0) 3 342-2831

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TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE................... |

STATEMENT OF FACTS ........cccccccvcccvceccess l

SUMMARY OF ARGUMENT ..............--+000055 4

RETIN E vv avec widccucsncdvdavenesssvasetneeeees 6
I. Section 1983 Entitles Aggrieved Landowners to A

Il.

Jury Trial on the Basic Elements of Liability in a
Regulatory Takings Claim ...............0500055

A.

The Basic Structure of Section 1983 Contem-
plates Jury Trials for Money Damages in State
Regulatory Takings Cases ...............65:

This Court Should Decide the Important Sub-
stantive Question of Constitutional Law even if
it Rules that the Trial Judge Should Resolve all
Questions of Liability in Regulatory Takings
DUORGRNS on. cece ccoceessuestutesenescesss

The “Rough Proportionality” Standard of Dolan
Clearly Applies to Government Regulations that
Deprive Landowners of All Economically Viable
Use of their Property ...........ccccvccceeseces

A. The Questions Presented Implicitly Address

Situations in which State Regulations Have
Deprived Landowners of All Economically
Viable Use of Their Property...............

The State Deprives An Owner of Vacant Land
All Beneficial Economic Use When the Total-
ity of its Permit Conditions and Restrictions
Render Unprofitable Even the Ideal Develop-
mont Program .........cccccccnscseceeesess

TABLE OF AUTHORITIES - Continued
Page

C. The City of Monterey Has Not Shown that the
Total Deprivation of Viable Economic Use is
Necessary to Prevent any Nuisance-Like
Eo avin ke hide bude ccc cad 11

D. Only Anti-Nuisance Justifications Suffice in
Cases Where Regulation Strips a Landowner of
All Economically Viable Use............... 12

E. The Dolan Rough Proportionality Standard
Governs State Justifications for Total Land Use
MEP AN Ka du ep neh Vika cUk cidbas kee chcde 14

Ill. Even in Cases of Partial Land Use Restrictions The
Rough Proportionality Standard Should be Adopted... 19

A. Rough Proportionality Reconciles the Need to Curb
the Sum of Private and Public Abuse .......... 19

B. The Need for Judicial Oversight is as Great in
Land Use Restriction Cases as it is in Exaction
SRNR Aa SSAN 2S i Ii Sa aN 23

IV. State and Local Governments Have Taken Advan-
tage of Judicial Deference to Frustrate The Reason-
able Expectations of Property Owners ........... 27

ce «SERENA ITIES GA Sei Wenn a a a 29

ili
TABLE OF AUTHORITIES

Cases
Agins v. City of Tiburon, 447 U.S. 255 TS Ea 12

Bowles v. United States, 31 Fed. Cl. 37 (1994) ..... 11, 13

City of Euclid v. Ambler, 272 U.S. 365 RS noes 15, 17
Clajon Production Corp. v. Petera, 70 F.3d 1566

A OR nD eae Ce Rise 9, II
Del Monte Dunes at Monterey, Ltd. v. C ity of Mon-

terey, 9S F.3d 1422 (9th Cir 1996)........ 1, 4, 6, 7, 26
Del Monte Dunes at Monterey, Lid. vy. City of Mon-

terey, 920 F.2d 1496 (9th Cir 1990) ........... 2, 3, 28
Dolan v. City of Tigard, $12 U.S. 374 GR passim

First English Evangelical Lutheran Church of Glen-
dale v. Los Angeles County, 482 U.S. 304 (1987) .... 28

Goldblatt v. City of Hempstead, 369 U.S. 590 (1962) ...15. 16

Landgate, Inc. v. California Coastal Commission. 17

Cal. 4th 1006, 953 P.2d 1188 (1998)............. 28, 29
Loretto v. Teleprompter Manhattan CATV Corp., 458

© EONS I ERIS Te ela eR rene 14
Lorillard v. Pons, 434 U.S. 575 (1978)................. 6

Lucas v. South Carolina Coastal Council, 505 U.S.
Sa SSE gE AE Gm ee ad passim

Nollan v. California Coastal Commission, 483 US.
Sa ena lt I i ES: 5, 9, 15, 16, 19

iv

TABLE OF AUTHORITIES — Continued

Page
Outdoor Systems v. City of Tucson, 997 F.2d 604 (9th

Gah BRED ccdcéoccnncécccendccdsadscwieebsdebiction 11
Penn Central Transportation Co. v. City of New Yc rk,

Ge es Se Gis cccucschuscabenstehtestnanscs 10
Pioneer Trust & Savings Bank v. Mount Prospect, 22

Ill. 2d 375, 176 N.E.2d 799 (1961)...............4.. 21
Pumpelly v. Green Bay Co., 80 U.S. 166 (1871) ....... 26
San Diego Gas and Electric Co. v. City of San Diego,

Gr Wes Ge CR od hd cccupebictedbadenedbacentibecs )
Schenck v. City of Hudson, 114 F.3d 590 (6th Cir.

Ss ss dancnsbdbasevecntehasanbedestatevens 12, 18, 24
Sprenger, Grubb, & Associates, Inc. v. City of Hailey,

127 Idaho 576, 903 P.2d 741 (1995)................ 18
United States v. Reynolds, 397 U.S. 14 (1970).......... 7
Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172

ic on dcucdcegdntdsaeetcmuaveasevsnssecieel 27, 28
Williamson v. Lee Optical of Oklahoma, 348 U.S. 483

SpEe 436 Votrsd 40400 bsnbbarder as ebnlene canoe 15
Stare StTaTuTEes
- Me Be FP Sf rer 25
Cal. Gov't Code, §§ 66410 to 66499.58 (Deering

Sk t.s chdec en dacebedistdaneSnethendkabscetiadbad 2
S.C. Code Ann. § 48-39-290(D) (Law. Co-op. 1997) .... 27

TABLE OF AUTHORITIES - Continued

Page
MisceLLaANeous PUBLICATIONS
Baldus and Cole, Statistical Proof of Discrimination
DUiols dncae cubic sued beddet Ghideadedobus és kc 20
Buchanan and Tullock, The Calculus of Consent
ictctedechutietehnensshbdbixGecaseceneheucess 22
Gilmore, The Age of Anxiety, 84 Yale L. J. 1022
Pst che taededsovsadsnadsddavenss cebuadsducdese< 28
Hayek, The Constitution of Liberty (1960) ............. 22
Hayek, The Fatal Conceit: The Errors of Socialism
Scninthigddd seats édkewdibes shin dcovedseateand 22
Hayek, The Road to Serfdom (1944)................... 22
Tribe, American Constitutional Law § 9-3 (2d ed.
PA tpthovddutmenksé ndbad dans anadsavielsesecsheced 7)

INTEREST OF AMICUS CURIAE

The Institute for Justice is a nonprofit, public interest law
center committed to defending the essential foundations of a
free society through securing greater protection for individual
liberty and restoring constitutional limits on the power of
government. Central to the mission of the Institute for Justice
is strengthening the ability of individuals to control and
transfer property and demonstrating that property rights are
inextricably connected to other civil rights.

The Institute's brief is co-authored with Professor Rich-
ard Epstein of the University of Chicago School of Law, one
of the nation’s leading authorities on property law. The Insti-
tute also filed an amicus curiae brief in Dolan vy. City of
Tigard, among other important takings cases before this
Court. The Institute's brief focuses on the proper standard of
review when government regulations fully or partially restrict
the rights of property owners.

The Institute has obtained the consent of the parties to
the filing of this brief, and letters of consent have been filed
with the clerk.!

STATEMENT OF FACTS

This lawsuit reaches the Supreme Court after a protracted
dispute between the Respondent Del Monte Dunes and the
Petitioner City of Monterey (“the City”) over the develop-
ment of a 37.6-acre plot of oceanfront property located adja-
cent to a multi-family development, a railroad right-of-way,
and a state beach park.?

' Counsel for the parties in this case did not author this brief in whole
or in part. No person or entity, other than amicus curiae Institute for
Justice, its members, or its counsel made a monetary contribution to the
preparation and submission of this brief.

? The full statement of facts is drawn both from the decision below,
Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th
Cir. 1996), [hereinafter De! Monte 11) and from the fuller description of the
facts found in the earlier Ninth Circuit decision holding that respondent's

2

The subject parcel had cace been used as a petroleum
tank farm, and seven tank pads and other equipment had
remained on the site. In 1981, Respondent's predecessor in
title, Ponderosa Homes, sought the City’s permission to build
a 344-unit residential development cu the site. As part of its
application, Ponderosa had to submit for City approval a
tentative map outlining in detail its planned-unit-develop-
ment. See Cal. Gov't Code, §§ 66410 to 66499.58 (Deering
1997).

Ponderosa’s initial 344-unit proposal “was within the
residential density allowed on the site by the existing zoning
and general plan designations.” Del Monte 1, 920 F.2d at
1502. Nonetheless the City’s planning staff then asked for an
environmental impact statement, duly submitted if January
1982. The planning commission then rejected Respondent's
permit request, but invited submission of a plan for a project
with 264 units. That proposal was in turn rejected in Decem-
ber 1983, when the commission suggested a project with 224
units. Respondent submitted a proposal to that effect in early
1984, which was rejected first by the commission and then by
the City Council in March, 1984. The Council then instructed
the planning commission to consider a 190-residential-unit
development. In July 1984, the planning commission denied
Respondent's site plan for 190 units, but its decision was
overruled by the City Council in SeptemSer 1984. The Coun-
cil did not grant final permission to build but did give Pon-
derosa an eighteen-month conditional use permit for the
proposed site development. One of the fifteen required condi-
tions demanded assurance of habitat preservation for the
Smith's Blue Butterfly. This assurance had to meet the
approval of the California Department of Fish and Game
(DFG) and the United States Fish and Wildlife Service
(USFWS). Other conditions required the approval of the
Architectural Review Committee of the actual plans; still

constitutional challenge was ripe for adjudication. See De! Monte Dunes at
Monterey, Lid. v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990),
[hereinafter Del Monte 1}.

3

others pertained to access, fencing, grading, underground
utilities, provision of moderate income housing, and sound-
proofing between units. See Del Monte |, 920 F.2d at 1503. In
late 1984 Ponderosa sold its interest to the Respondent, Del
Monte Dunes.

By August 1985, the professional planning staff had
recommended approval of the project, noting that “the pro-
posed subdivision [was] not likely to cause substantial envi-
ronmental damage or substantially and avoidably injure fish
or wildlife or their habitat.” /d. at 1504. But the planning
commission turned down the proposal in January, 1986, and
in June 1986, the City Council affirmed the denial of the
planning commission, noting that the site was “not physically
suitable for the type and density of the development proposed,
in that sand relocation and grading necessary for construction
of the project results in significant environmental impacts that
are not mitigable nor adequately addressed given the current
size of the project.” /d. at 1504. The City Council also found
that there was inadequate access to the project and that an
inadequate habitat had been supplied for the Smith's Blue
Butterfly. See id.

Thereafter the landowners brought suit against the City
in Federal Court for inverse condemnation. The City defended
on the ground that the action was not ripe, but in 1990, the
Ninth Circuit ruled for the landowner, and remanded the case
for trial. See Del Monte 1, 920 F.2d 1496. In September 1994,
the City again approved Del Monte’s proposed 190-unit
development, conditional on its ability to provide adequate
mitigation for adverse environmental impacts. Negotiations
dragged on for another eighteen months between Del Monte,
the City, the USFWS, the California DFG, and other inter-
ested experts and members of the public. Before the planning
commission, Del Monte introduced expert testimony to show
that it had met the appropriate environmental concerns; that
conclusion was disputed by USFWS and the California DFG.
The building permit was again rejected. Thereafter, Del
Monte again sued in District Court, and during the pendency
of the case sold its land to the state of California for $4.5

4

million, or $800,000 more than its purchase price. That deci-
sion left unaffected Del Monte’s suit against the City of
Monterey. When that case was tried, the jury awarded Del
Monte $1,450,000, and that decision was affirmed again by
the Ninth Circuit in September, 1996, fifteen years after the
original application was filed. In its decision, the Ninth Cir-
cuit noted that the jury passed on both relevant questions: was
there a legitimate public reason that justified the restrictions
in question, and did the restrictions in question deprive the
landowner of all viable economic use. The Court then exam-
ined both these claims and found that each was supported by
sufficient evidence. See Del Monte I], 95 F.3d at 1429-32
(legitimate justification) and id. at 95 F.3d at 1432-34 (eco-
nomic use). In April 1998 a writ for certiorari was granted.

SUMMARY OF ARGUMENT

This inverse condemnation case raises both procedural
and substantive issues.

Procedurally, the District Court allowed the jury to
decide (1) whether the City had legitimate public reasons to
restrict Del Monte’s use of its own property, and (2) whether
those restrictions had deprived it of all economic value. That
standard makes sense under Section 1983, which distin-
guishes between actions at law and suits in equity. An action
for damages for what would otherwise be an unlawful taking
more closely resembles a common law suit for trespass or
conversion than it does a suit in equity for specific perfor-
mance or an injunction. Absent any intention by Congress to
displace the ordinary division of labor between court and jury,
such as that governing federal condemnation actions under
Fed. R. Civ. P. 71A(h), the decision of the District Court, as
affirmed by the Ninth Circuit, was correct.

Wholly apart from its soundness, the critical issue in this
case is the standard of review that is brought to the takings
claim. The Ninth Circuit carefully reviewed both parts of the
takings issue. It first held that the jury had ample reason to
find that the City did not meet the “rough proportionality”
standard of Dolan v. City of Tigard, 512 U.S. 374 (1994) in

5

advancing its public justifications for the restrictions that it
imposed. It also held that the evidence supported the jury’s
determination that the regulations and conditions deprived
Del Monte of all economically viable use of the property.

The judgment below is easily defensible when both these
facts are found in conjunction. The total wipeout of all eco-
nomic use has been held by this Court in Lucas v. South
Carolina Coastal Council, 505 U.S. 1003 (1992) to be tanta-
mount to a physical taking. Just as with physical takings, the
City cannot expect the deference of the rational basis test to
evaluate the reasons for its actions. Rather, it must meet the
higher level of scrutiny enunciated in Dolan’s rough propor-
tionality test. The size of the wipeout inflicted and the danger
of abusive, factional behavior within local government poses
too great a risk for government decisions that work a massive
deprivation of constitutional rights.

The rough proportionality standard in Dolan should
apply even if the City’s restriction had worked only a partial
restriction of land use. As articulated in Nollan v. California
Coastal Commission, 483 U.S. 825 (1987), the takings clause
contains a specific substantive protection for private property
that cannot be overridden on a deferential rational basis
standard, such as that applicable to substantive due process or
equal protection claims. With partial restrictions, as with total
wipeouts, the dangers of faction, abuse and delay militate
against a deferential rational basis test that allows too much
abuse for too little sensible public gain. Local and state
governments often oppose development for reasons that are
parochial, anticompetitive and isolationist. Democratic mea-
sures of self-correction often fail because bodies frequently
give short shrift to the legitimate expectations of developers
and their potential customers who do not live and vote within
the state or its political subdivision.

This pattern of abuse and delay is evident in this lawsuit,
which has bounced back and forth through the courts for
nearly eighteen years. The rough proportionality standard
only requires courts to review public restrictions of private

6

development under the same type of standards that they have
long used in private disputes. In the short term, the rough
proportionality standard might increase the fraction of land
use planning decisions subject to judicial challenge. But in
the long run it should help reduce the frequency of litigation
by making state and local planning commissions fearful of
putting pointless obstacles in the path of ordinary develop-
ment that by no stretch of the imagination constitute a com-
mon law nuisance or an unreasonable burden on public
facilities.

ARGUMENT

I. Section 1983 Entitles Aggrieved Landowners to A Jury
Trial on the Basic Elements of Liability in a Regula-
tory Takings Claim.

A. The Basic Structure of Section 1983 Contemplates
Jury Trials for Money Damages in State Regula-
tory Takings Cases.

The first question presented in this case is whether a
plaintiff who brings an action under 42 U.S.C. § 1983 is
entitled to have the basic issues of liability determined by a
jury rather than by a court. Regulatory takings disputes usu-
ally raise two related questions. First, has the landowner been
denied all economically viable use of the property? If that
question is answered in the affirmative, then the inquiry shifts
to whether the rejection of the landowner’s development
application has substantially advanced a legitimate public
purpose. See Del Monte II, 95 F.3d at 1426. The Ninth Circuit
held that both these issues raised mixed questions of fact and
law which fell into the province of the jury, subject to review
by the court to correct against manifest error. The division of
fact-finding power between court and jury in regulatory tak-
ings cases follows the conventional pattern that has served
well in countless other contexts, ranging from ordinary tort
decisions to statutory causes of action under the anti-
discrimination laws. See, e.g., Lorillard v. Pons, 434 U.S. 575
(1978) (jury trial in age discrimination actions).

7

The advantages of this customary division of respon-
sibility are well understood and widely accepted. Using juries
allows members of the community to bring their own sense of
fairness to matters that turn heavily on the reasonableness of
government action, which is so central to this case. See Del
Monte 11, 95 F.3d at 1430. The judicial override offers a check
against runaway juries moved by passion and prejudice. The
court first sets the applicable legal standard; then the jury
makes the initial factual determination; finally, trial and
appellate courts set aside verdicts when juries reach mani-
festly indefensible decisions. Regulatory takings cases offer
no special reason to displace this time-honored division of
power as a matter of policy. Nor does anything in this Court's
decision in United States v Reynolds, 397 U.S. 14 (1970)
require the contrary. That decision only dealt with the divi-
sion of responsibility between judge and jury under rule
71A(h) of the Federal Rules of Civil Procedure, which gov-
erns federal condemnations in federal court, but which has no
impact on inverse condemnation proceedings brought against
state governments in federal court. Reynolds, 397 U.S. at 20.

B. This Court Should Decide the Important Substan-
tive Question of Constitutional Law even if it
Rules that the Trial Judge Should Resolve all
Questions of Liability in Regulatory Takings Dis-
putes.

The central issue in this case is not whether juries should
be excluded from any role in determining government lia-
bility in land use cases. Rather, it concerns the substantive
standards by which these government decisions will be
judged. The Court will surely have to face this critical issue
sooner or later, for even if the Ninth Circuit erred on this
procedural point, the substantive issue remains central to the
case on remand. Rather than allow that trial to take place in
ignorance of the applicable standard of review, it is better to
resolve the issue now on the strength of a detailed factual
record that permits full consideration of the relevant factors.
The implications of this issue are so profound for the health

8

of the nation as a whole that any delay in passing on the
question will unnecessarily allow uncertainty to fester in
countless other land use and permit disputes that raise similar
questions. A clear statement on the matter is required.

ll. The “Rough Proportionality” Standard of Dolan
Clearly Applies to Government Regulations that
Deprive Landowners of All Economically Viable Use
of their Property.

A. The Questions Presented Implicitly Address Situ-
ations in which State Regulations Have Deprived
Landowners of All Economically Viable Use of
Their Property.

The second and third questions presented in the City’s
petition for certiorari place in sharp relief the standard of
review for government action in inverse condemnation cases.
Question Two asks “whether liability for a regulatory taking
can be based on a standard that allows a jury or court to
reweigh the evidence concerning the reasonableness of a
public agency’s land use decision.” The presumed answer to
this question is “no,” which in effect allows government
agencies a free pass whenever they make individualized deci-
sions that restrict the use of private lands. Question Three
asks “whether the reasonable proportionality standard estab-
lished by this Court in Dolan v. City of Tigard, 512 U.S. 374
(1994), in the context of property exactions can be properly
applied to an inverse condemnation claim based upon a regu-
latory denial.”

As formulated, the questions presented elide a critical
point about the position of this case on appeal. The judgment
below must be sustained either (1) narrowly, that the Dolan
standard applies in all cases where the state seeks to justify
land use restrictions that totally destroy all economically
viable use or, (2) if this Court decides, broadly, that the
Dolan standard applies to all partial land use restrictions.
Amicus Curiae believes that the narrow proposition is already
well established as a matter of law, and that the broader
proposition is sound as a matter of constitutional principle.

9

Accordingly, this brief first addresses the more limited ques-
tion of the application of Dolan to cases of total wipeouts,
and then the broader issue of whether the Dolan standard
applies to State justifications for partial land use restrictions.

In dealing with this case, the City’s proposed answer is
that the state may be asked to justify its actions when it
conditions the issuing of a building permit on the surrender of
a possessory interest in property (a fee interest, or an ease-
ment) but not for any “mere” restrictions on land use, even
those that deprive the landowner of all economically viable
use of the land. Thus the Petitioner and the various Amici
claim that Dolan’s rough proportionality standard is limited to
cases of permanent physical occupation of once private lands.
In support of that position they point to the conclusion found
in such decisions as Clajon Production Corp. v. Petera, 70
F.3d 1566 (10th Cir. 1995): “Based on a close reading of
Nollan and Dolan, we conclude that those cases (and the tests
outlined therein) are limited to the context of development
exactions where there is a physical taking or its equivalent.”
Id. at 1578. (emphasis added).

Ironically the last clause of this sentence in Clajon
clearly supports the Respondent’s judgment below: the only
“equivalent” to a physical taking is an economic regulation
that deprives land of all beneficial economic use, which is
precisely the situation present in this case. Given the factual
posture of this case, the City’s position embraces an indefens-
ible anomaly. Generally speaking, the complete loss of all
economic use is treated like the physical dispossession of
private property because it is its functional equivalent. See
San Diego Gas and Electric Co. v. City of San Diego, 450
U.S. 621 (1981) (Brennan, J. dissenting); see also, Lawrence
Tribe, American Constitutional Law § 9-3 (2d ed. 1988)
(“Thus a taking occurs . . . when government controls a
person’s use of property so tightly that, although some uses
remain to the owner, the property’s value had been virtually
destroyed”). If the rough proportionality standard holds for an
exaction that leaves a landowner with many beneficial uses of
property, then it must surely apply to the greater loss of rights
that flow from the complete loss of all viable economic use.

10

Accordingly, the correct analysis of this case requires an
understanding of the two key elements of a regulatory takings
case: (1) did the government action deprive the landowner of
all viable economic use, and (2) was there a legitimate public
purpose that supported the state’s action.

B. The State Deprives An Owner of Vacant Land All
Beneficial Economic Use When the Totality of its
Permit Conditions and Restrictions Render Eco-
nomically Unviable Even the Ideal Development
Program.

The issue of whether government action has deprived a
landowner of all viable economic use arises in two separate
contexts. The first of these involves cases where the land-
owner is already making productive use of his property, but
wishes to make more intensive use of the land in question. In
Penn Central Transportation Co. v. City of New York, 438
U.S. 104 (1978), the owners of the Grand Central Terminal
sought to construct a major new structure in its upper air
space, which was denied under New York’s landmark preser-
vation ordinance. This Court refused to award Penn Central
compensation in part because Penn Central had not been
deprived of all economically viable use of its property. The
revenue from the land and building covered its costs and
allowed the owner a profit even in its current configuration.

The maintenance of the status quo does not offer the
government an escape hatch for land that has no current
productive use. To require land to remain vacant necessarily
strips away its entire economic use and thus rises to the level
of a compensable taking. That was the clear import of Lucas
v. South Carolina Coastal Council, 505 U.S. 1003 (1992),
where South Carolina prohibited all new construction on a
buildable beachfront lot. But constitutional obligation to com-
pensate is not limited only to cases that explicitly prohibit any
development of the land. A formal permission to build, cou-
pled with a set of restrictions that in combination make
building unprofitable, has the same practical effect as the

absolute prohibition. Accordingly, it has been treated in the
same fashion.

Thus, in Bowles v. United States, 31 Fed. Cl. 37 (1994),
the Army Corps of Engineers denied the landowner a permit
to fill his land for a septic tank, and required him (alone
among his neighbors) to “build a house on stilts and install a
holding tank sewer system without filling Lot 29 [his building
plot}.” /d. at 44. The sole use of the land was for a single
family residence, and the Court ordered compensation by
crediting the landowner’s evidence and by disregarding the
contrary evidence of the government. The Court found that
meeting the Corps’s requirements of an above-ground sewage
system gave the lot a negative value. /d. at 44. In contrast, the
cases that have refused to find a total deprivation of economic
use have typically involved situations where the regulation
itself explicitly preserved some profitable land use to its
owner. Thus, the landowner was not deprived of all economic
value in Outdoor Systems v. City of Tucson, 997 F.2d 604 (9th
Cir. 1993), when the City’s sign ordinance conditioned the
issuance of a valuable building permit on the dismantling of
any billboard on the land. Nor was a landowner deprived of
all economic use when prohibited from hunting “surplus
game” on its own property, although allowed to continue with
all of its other previously profitable activities. See Clajon
Prod. Corp. v. Petera, 70 F.3d 1566, 1575 (10th Cir. 1995). In
all these cases the residual uses allowed the owner to market
the land at a positive market value. Not so with the restric-
tions imposed on Del Monte: once the conditions were
imposed, any further development of its land would only add
to its financial losses.

C. The City of Monterey Has Not Shown that the
Total Deprivation of Viable Economic Use is Nec-

essary to Prevent any Nuisance-Like Harms to
Others.

The City of Monterey does not necessarily lose a regula-
tory taking case simply because a landowner has been
deprived of all economically viable use. But within that

12

confined context, it no longer suffices for the City to show
that the restrictions in question advance some broad objec-
tives of land use planning such as the preservation of open
spaces, see Agins v. City of Tiburon, 447 U.S. 255 (1980), or
growth control, see Schenck v. City of Hudson, 114 F.3d 590
(6th Cir. 1997). Rather, the City is put to a higher test in light
of the greater devastation that its regulations have wreaked.
Now it must show that this set of provisions was justified in
order to prevent nuisance-like harms to others. See Lucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992).

Notwithstanding their formal equivalence, the examina-
tion of the relevant justifications for government action does,
however, raise distinctive issues when the landowner’s tak-
ings claim rests on a complete loss of economic use as
opposed to the permanent occupation of land. Only in extraor-
dinary cases could a state justify the complete occupation as
necessary to prevent the occurrence of a common law nui-
sance. Except in extraordinary cases, some lesser restriction
on land use could achieve that same end. But that less-
restrictive alternative is not obviously available when govern-
ment land use regulations force a landowner to suffer a total
loss of economic use: in principle, these restrictions could be
the least restrictive means of preventing nuisance-like harm to
strangers, in which case they do not run afoul of the takings
clause.

D. Only Anti-Nuisance Justifications Suffice in
Cases Where Regulation Strips a Landowner of
All Economically Viable Use.

Lucas itself makes clear the limited types of justification
made available to the state when land use regulations work a
total taking. Thus this Court held that the state “may resist
compensation only if the logically antecedent inquiry into the
nature of the owner's estate shows that the proscribed use
interests were not part of his title to begin with.” Lucas v.
South Carolina Coastal Council, 505 U.S. at 1027. This Court
made the point still more explicit when it said:

13

{a} law or decree with such an effect must, in
other words, do no more than duplicate the result
that could have been achieved in the courts — by
adjacent landowners (or other uniquely affected
persons) under the State’s law of private nuisance,
or by the State under its complementary power to
abate nuisances that affect the public generally, or
otherwise.

Lucas, 505 U.S. at 1029.

In light of that standard, this Court remanded the case to
the South Carolina Courts to decide whether a total prohibi-
tion on new construction on plaintiff's beachfront lots was
consistent with the common law of nuisance (which contains
the implicit limitations on use inherent in fee simple owner-
ship). The South Carolina Court held it did not. See Lucas v.
South Carolina Coastal Council, 309 S.C. 424, 424 S.E. 2d
484 (1992).

Lower court decisions have then held that the state bears
the burden of proof on this critical question of nuisance
prevention:

When a total regulatory taking occurs the govern-
ment can resist compensation only if the nature of
the owner's estate shows that the proscribed use
was not part of the owner’s property right to begin
with. . . . In the case of a fee simple estate in land
the government has the burden of proof to demon-
strate that the prohibited use of the property consti-
tutes a nuisance under state common-law doctrine.
It cannot hide behind conclusory legislative find-
ings that simply characterize land use restrictions as
harm-preventing.

Bowles v. United States, 31 Fed. Cl. 37, 45 (1994). (emphasis

added).

Bowles then applied this test by holding that “building a
house” is not a common law nuisance. /d. at 49. The same
logic applies in this case. There is simply no credible argu-
ment that the construction of a housing complex on a dune
near the beachfront is a nuisance. That was the conclusion in

14

Lucas and it has to be the conclusion here. The state may
want to preserve land in its natural state, whether for tourism
or for needed habitat, but if so the condemnation option
always remains open to it. The power of eminent domain
confers on the state the extraordinary power to take private
property without the consent of its owner. But it authorizes
only condemnation, not public theft. Ordinary individuals
who obtain consent must pay for what they take. All the more
reason why the state must pay for what it takes without
consent. That extraordinary government power to take with-
out landowner’s consent cannot under our Constitution be
transmuted into the tyrannical power to take without compen-
sation. Confiscation is not allowed when the government
permanently occupies land. It should not be allowed here with
its functional equivalent — the stripping away of alk economic
use of the property. The short, simple truth is that the state's
own preferred justifications for its actions fall short of what
Lucas requires of it. For these reasons alone the decision of
the Ninth Circuit should be affirmed.

E. The Dolan Rough Proportionality Standard Gov-
erns State Justifications for Total Land Use
Wipeouts.

At present this Court has adopted a strict scrutiny stan-
dard whenever the government takes permanent physical pos-
session of private property. See Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419 (1982). That rule holds
whether the government occupies the land or authorizes pri-
vate parties to occupy it, as was the situation in Loretto when
the cable company’s box was placed on the roof of the
landowner’s apartment building. As noted earlier, Lucas
expressly adopted the language of strict scrutiny when it
examined the state's justification for imposing land use
restrictions.

The applicable standard of review in Lucas stands in
sharp opposition to that used with partial restrictions on land
use, i.e. those that do not deprive the landowner of all eco-
nomically viable use of his property. See Dolan, 512 U.S. at

ee ~~

15

385, n.6. Historically, the rational basis standard of review
dominated takings cases under the jurisprudence of this
Court. That standard (although not those exact words) gov-
erned this Court's initial foray into zoning law in City of
Euclid v. Ambler, 272 U.S. 365 (1926). It was more con-
sciously applied in Goldblatt v. City -’ Hempstead, 369 U.S.
590 (1962). Nollan v. California Coastal Commission, 483
U.S. 825 (1987), marked a self-conscious retreat from the
earlier trend and the acceptance of a higher standard of
review.

Nollan addressed the situation in which the state was
willing to issue a building permit if the landowner was pre-
pared to submit to the exaction of a lateral easement across its
land. This Court rejected the state’s effort to bundle the
easement with the building permit when the easement was
unrelated to the state’s asserted interest in preserving a view-
ing easement from the public highway over Nollan’s land to
the Pacific Ocean. In so doing, Nollan explicitly rejected any
assimilation of takings cases to the lower rational basis stan-
dard, which has long been the norm in equal protection or due
process challenges to state regulation of ordinary economic
liberties (chiefly to buy and sell goods and services at unregu-
lated prices or wages). See Williamson v. Lee Optical of
Oklahoma, 348 U.S. 483 (1955). Thus Nollan states (in lan-
guage that supports both Respondent's broad and narrow
claims) that

there is no reason to believe (and the language of

our cases gives some reason to disbelieve) that so

long as the regulation of property is at issue the

standards for takings challenges, due process chal-
lenges, and equal protection challenges are identi-

cal; any more than there is any reason to believe

that so long as the regulation of speech is at issue

the standards for due process challenges, equal pro-

tection challenges, and First Amendment challenges

are identical.

483 U.S. at 836, n.3.

Thereafter the Court limited Goldblatt by noting that it

does “appear to assume that the inquiries are the same, but

16

that assumption is inconsistent with formulations of our later
cases.” /d.

The exact level of the increased scrutiny required under
the takings clause was not fully settled in Nollan because of
the utter lack of any nexus between the lateral beachfront
easement and the viewing easement. It fell to Dolan to test
the closeness of the relationship between the exactions
demanded and the state justifications for their use. In Dolan,
the plaintiff wished to double the size of her plumbing supply
store, but was told by the City that she could obtain the
necessary permits only by deeding over portions of her land
for use as a flood plain and a pedestrian/bicycle pathway. This
Court recognized that these restrictions in principle could be
related to legitimate public ends, but steadfastly refused to
defer to the City’s judgment on the closeness of that connec-
tion. In remanding the case, this Court held that the state must
demonstrate a “rough proportionality” that linked the exac-
tions imposed to the ends they served.

In articulating this rough proportionality standard, this
Court reviewed the decision standards of state courts to
decide whether the findings made in Dolan “are constitu-
tionally sufficient to justify the conditions imposed by the
city on Petitioner's building permit.” Dolan, 512 U.S. at 389.
More specifically, the Court first rejected a rational basis
standard of review under which “very generalized statements
as to the necessary connection between the required dedica-
tion and the proposed development seem to suffice.” /d. at
389. At the opposite extreme, this Court also rejected a “very
exacting correspondence, described as the ‘specifi{c] and
uniquely attributable’ test.” “We do not think the Federal
Constitution requires such exacting scrutiny, given the nature
of the interests involved.” /d. at 389-90.

This Court then opted for the rule adopted in the majority
of states that “have taken an intermediate position, requiring
the municipality to show a ‘reasonable relationship’ between
the required dedication and the impact of the proposed devel-
opment.” /d. at 390. Nonetheless this Court was uncomfort-
able with this verbal formulation.

17

We think the ‘reasonable relationship’ test
adopted by a majority of the state courts is closer to
the federal constitutional norm than either of those
previously discussed. But we do not adopt it as
such, partly because the term ‘reasonable relation-
ship’ seems confusingly similar to the term ‘rational
basis’ which describes the minimal level of scrutiny
under the Equal Protection Clause of the Fourteenth
Amendment. We think a term such « ‘rough pro-
portionality’ best encapsulates what we hold to be
the requirement of the Fifth Amendment. No pre-
cise mathematical calculation is required, but the
city must make some sort of individualized deter-
mination that the required dedication is related both
in nature and extent to the impact of the proposed
development.

Id. at 391.

At this juncture Euclid, with its rational basis approach,
was explicitly distinguished on the ground that it involved
“generally applicable zoning regulations,” in contrast to the
city’s “adjudicative decision to condition Petitioner's applica-
tion for a building permit on an individual parcel,” where “the
burden properly rests on the city.” /d. at 391, note 8. See also
id. at 385 (contrasting the “essentially legislative determina-
tions classifying entire areas of the city,” with the “adjudica-
tive decision” involved in passing on Dolan’s application).
The clear import of these passages is that rough propor-
tionality is tantamount to intermediate scrutiny in the choice
of means to reach the set of antinuisance objectives.

The rejection of rational basis review applies with
undiminished force in the current case. No one doubts that
Del Monte had complied with all general zoning ordinances in
its initial permit application. All the objections to its pro-
posed plan of construction rested alleged defects in that
program that depended on conditions that apply to every
coastal dune in the United States. All dunes contain high and

low points. How easy it is to allege that building on the high
ground blocks views over the land, while building on the low
portions could have some impact on drainage; or that each
plot of undeveloped land could in principle serve as habitat
for some species, endangered or otherwise, of interest to the
State.

We are far from suggesting that the state is incapable of
acting when it is prepared to compensate for the losses that it
wishes to impose on the landowner and his potential pur-
chasers. In this case, however, these concerns have been
invoked to delay for years development on this parcel and this
parcel only. Yet the City’s reasons for denying a building
permit contained only cookbook responses that could have
been drafted in complete ignorance of the evidence gathered
in this case. Indeed, if anything, the “findings” here were iess
informative than those rejected as insufficient in Dolan, for
there at least flood plain and traffic control counted as
unquestionable ends of the state’s police power. In contrast,
the stylized responses offered by the City of Monterey did not
reveal any discernible harm to public lands or waters; nor did
they show any harm to the property of any neighbors; nor did
they show any excessive demands on infrastructure that have
been the concern in recent federal appellate opinions; see,
e.g., Schenck v. City of Hudson, 114 F.3d 590 (6th Cir. 1997),
or state court opinions, see Sprenger, Grubb & Associates,
Inc. v. City of Hailey, 127 Idaho 576, 903 P.2d 741 (1995). At
most they demonstrated an awareness of the inevitable envi-
ronmental change that accompanies any development any-
where. If the rough proportionality standard carries over to
this case, then the decision of the Ninth Circuit must stand.

19

Ill. Even in Cases of Partial Land Use Restrictions The
Rough Proportionality Standard Should be Adopted.

A. Rough Proportionality Reconciles the Need to
Curb the Sum of Private and Public Abuse.

The broad version of the question presented in this case
is whether the rough proportionality standard should be
applied to review government justifications for partial land
use restrictions. Legal authority on this point is surely
divided. This Court’s decision in Nollan points to the general
rejection of a rational basis standard in connection with speci-
fic substantive guarantees, such as the takings clause. But the
Circuit Court and state court decisions distinguished above,
all take the position that the rough proportionality standard of
Do'in only applies to exaction or dedication cases. Amicus
Curiae submits that the higher standard of rough propor-
tionality review is appropriate with regard to the full range of
land use restrictions.

The Constitution and Bill of Rights contain a large
number of individual guarantees, but they contain no explicit
instructions on the standard of scrutiny that should be used.
The various government parties attacking the Ninth Circuit
decision write as though the only real issue at stake involves
preserving the “flexibility” of government to make land use
decisions, including those relevant to the preservation of
endangered species. See, e.g., Amicus Curiae Brief for the
United States, supporting the Petitioner in Part, at 1. In so
doing, they act as though the only goal is to preserve the
appropriate sphere of action for virtuous and informed gov-
ernment action. Our Constitution takes a different view of
government action. On the one hand it obviously authorizes
official action at all levels, but it does so with a keen appre-
ciation of the abuses that can subvert its sound operation.
Ever since Federalist No. 10 articulated the danger of faction,
the theory of constitutionalism poses a more complex inquiry
than Petitioner’s one-sided account acknowledges. The issue
is not merely how to preserve government flexibility for
constructive ends. Rather, it is how to preserve government
flexibility for constructive ends without giving the state carte

20

blanche to perform destructive actions. Our Constitution thus
always performs the balancing act of both authorizing and
limiting government action. So the real question is how is that
best done?

The problem is best understood by linking the choice of
standard to the costs of an erroneous decision under condi-
tions of uncertainty. Any judicial judgment on constitu-
tionality is subject to two types of errors. See generally David
C. Baldus & James W. L. Cole, Statistical Proof of Discrimi-
nation 291-92 (1980). Type I error is to uphold a constitu-
tional challenge to lawful government action that should be
allowed. Type II is to permit a government action that should
be prohibited. It is impossible to eliminate both types of error
simultaneously since they are inversely related. The only way
to eliminate the last bit of one type of error is tO increase
substantially the error rate of the other type. If both forms of
error were weighted equally, then the ideal strategy would be
simply to reduce the sum of the errors, without regard to their
direction — which offers a sensible interpretation of the stan-
dard of rough proportionality (or intermediate scrutiny) under
Dolan. But let one type of error be weighted more heavily
then the other, and the balance shifts accordingly. Greater
attention should be paid to eliminate those errors that carry
with them the more serious negative consequences.

The various standards of constitutional law respond to
these different weights of error. A strict scrutiny standard is
used when this Court adjudges the errors of commission to be
far greater than the errors of omission. The rational basis
standard is used when this Court adjudges the errors of
omission to be far greater than the errors of commission,
leaving intermediate scrutiny to cover those cases where
errors are of roughly equal weight. An intelligent program of
constitutional adjudication necessarily makes rule-of-thumb
estimations of the gravity of error in certain well-established
categories. It is not possible at this juncture to analyze how
this framework applies to the various freedoms protected by
the Bill of Rights, or to the various classifications (race, sex,
age, alienage, wealth) that could be challenged under the
equal protection clause. But in the takings area, it is clear that

21

the strict scrutiny standard requires the state to pay compen-
sation when it permanently dispossesses the owner of private
land.

The situation is more complex when land use regulation
is at stake, for the difficulties with harmful spillovers are no
longer so easily dismissed. It is this reason that best explains
Dolan’s rejection of the strict scrutiny standard adopted in
some states. See Pioneer Trust & Savings Bank v. Mount
Prospect, 22 IN. 2d 375, 380, 176 N.E.2d 799, 802 (1961).
The construction of a hard surface covering in one area could
lead to dangerous runoff in other areas. The construction of a
new shopping center or apartment complex will increase the
demands of roads and infrastructure. A strict scrutiny stan-
dard could easily be held to frustrate the efforts of the state to
make sure that the actions of some individuals do not impose
untoward costs on nearby property, public or private. Dolan
thus treats the risk of private abuse as too great to justify
strict scrutiny, at least under federal constitutional law -
leaving open the possibility that state constitutions might
impose higher standards of review on their own legislative
and administrative processes.

If private abuse (such as harmful spillovers) were rou-
tinely curbed by well designed state regulation, then the error
minimization framework could justify the rational basis stan-
dard of review. State and local governments could never be
faulted for their dubious motivation or their insufficient
knowledge. Since the risk of official misconduct is nil, the
vast deference required under the rational basis standard
would provide the proper theoretical norm. But the question
of abuse of state and local power cannot be dismissed cava-
lierly. Even in those cases that do not result in a total depriva-
tion of economic value, a landowner could suffer the loss of
seventy-five or eighty percent of land value, amounting in
individual cases to millions of dollars of loss. In those situa-
tions, it is easy to recognize that vast powers of state and
local government operate as a two-edged sword, capable of
being turned to parochial as well as public-spirited ends. It
was just that concern with arbitrary state and local power that
led Madison to trumpet the virtues of the extended republic in

22

Federalist No. 10. The dangers and vagaries of any system of
political logrolling lay at the root of the public choice move-
ment. See generally James Buchanan & Gordon Tullock, The
Calculus of Consent (1962). And F.A. Hayek has exhaustively
demonstrated the dangers and inevitable impossibility of cen-
tral planning. See, e.g., The Road to Serfdom (1944); The
Constitution of Liberty (1960); The Fatal Conceit: The Errors
of Socialism (1989). No one can deny that local governments
often have superior knowledge of local conditions. But, by
the same token, no one can deny that the virtues of commu-
nity participation and reasoned deliberation often yield to the
dangers of political faction and legislative or administrative
capture. Here, as in other contexts, the law of diminishing
returns sets in. The last bit of private abuse that is ferreted out
by public agencies operating under the rational -basis test
paves the way for substantial amounts of public abuse com-
mitted by state and local governments whose activities are,
under that test, virtually immunized from constitutional scru-
tiny.

The risk of government misconduct is serious and
endemic, and it reaches partial land use restrictions with the
same fury as total wipeouts. It stems from the frequent mis-
match between private landholdings and political power. An
individual owns a valuable parcel in a given community, but
has few, if any, votes to protect him from the restrictions
imposed by a determined majority. Worse still is the position
of individuals who live outside the local community and own
no property within it, for they cannot register their prefer-
ences in the political process, for they cannot identify them-
selves until the project is ready for sale or lease.

This fuller picture of state and local government there-
fore reveals substantial costs to both kinds of error. In the
exaction context, a rational basis test outweighs the fears of
excessive private misbehavior relative to the equal risks of
excessive localism and protectionism. Rough proportionality,
with its appeal to intermediate scrutiny, recognizes the
approximate parity in the two forms of error. It does not fixate
on private misconduct while allowing government abuse to
multiply free of judicial review.

23

This rough proportionality standard does not eliminate all
prospect of abuse, but it helps achieve the right legal objec-
tive, which is to minimize the expected costs of the two forms
of error. In particular, the intermediate scrutiny standard takes
into account the obvious point that more state and local land
use regulation does not necessarily lead to better state and
local land use regulation. It may be relatively easy to elimi-
nate the most obvious forms of error by taking some simple
steps, such as imposing restrictions against pollution, dis-
charge, and other common law nuisances. Any effort to insu-
late all state and local actions from constitutional scrutiny
ushers in, however, the endless rounds of official obstruction
that mark and mar the record in this case.

Any other result would be unwise because it would erect
an unnecessary categorical divide between easements (that
allow entry that would otherwise constitute a trespass) and
restrictions (that prohibit uses that would otherwise be law-
ful) that destroy or impair economic viability. But the politi-
cal forces that lead to local abuse are equally powerful in both
these situations. Any legal regime that guarded against exac-
tions while allowing land use restrictions to impose total
wipeouts would lead to perverse economic results. The Con-
stitution would prevent local governments from imposing
easements that cost $100 as a condition to exercise develop-
ment rights worth $1,000. But the Constitution would stand
mute as state and local governments condition development
on accepting land use conditions that reduce those same
development rights by $500, if they don’t wipe them out
altogether.

B. The Need for Judicial Oversight is as Great in
Land Use Restriction Cases as it is in Exaction
Cases.

Judicial scrutiny of government behavior in exaction
cases ultimately rests on the awareness of the inherent limita-
tions of the political process. The same concerns carry over to
state and local land use restrictions that impose substantial
economic losses.

24

First, Dolan stressed the great dangers of individualized
exactions, as opposed to generalized zoning ordinances. See
Dolan, 512 U.S. at 385 and 391, n.8, discussed supra at 22.
This last worry is fully vindicated here since Del Monte had
satisfied all general zoning requirements but was tormented
for years with an endless array of individualized planning
reviews that resulted in a complete rebuff of its ability to
build on its own tract of land.

Second, the same constellation of state and local political
forces are at work with these ad hoc land use restrictions as
with exactions and dedications. Local residents and planning
commissions could easily vote against a proposed project that
promises large gains for its potential residents because it
imposes some small loss or inconvenience on local residents.
But a rational basis test will not uncover these abusive restric-
tions because the state can always show some reason for the
action, namely, that it will benefit the majority who voted for
it. Only the standard of reasonable proportionality can exam-
ine the purported reasons for the decision and expose the
parochial interests that led to its passage.

Third, this case shows that it is unwise to assume that the
use of a rough proportionality standard heralds a return to the
Lochner era in which the economic and social decisions of
state legislatures were constantly second-guessed by courts.
See U.S. Amicus Curiae Brief at 13, n.6, claiming that closer
review would turn the federal courts into super-zoning
boards. See also Schenck, 114 F.3d at 593. But these fears are
quite groundless. The question in this case is whether the
state can point to some legitimate interest that justifies the
restriction in question.

On this score it makes good sense to ask about the
legitimacy of the ends and the appropriate nature of the
means. On the first point, the concerns with habitat preserva-
tion may be honored by condemnation, but they should never
be respected as the grounds for a simple declaration that a
parcel of land is off-limits for all forms of development. The
simple reason is that this purported justification places no
limit on state appetites. First, one level of government could
insist that portions of the land be set aside for habitat to

25

“mitigate” the harms from development. But in the next
breath, another state or federal agency could find yet another
environmental peril that requires still more land to be set
aside. And then a third. The combined effect of these attacks
is to wipe out all value of land because the landowner cannot
by agreement with any single agency obtain the clarity of title
needed for ordinary development. The land will be taken little
by little, and each government agency will hide behind the
actions of the others. The rough proportionality standard
blocks these dubious stratagems by looking both at public
ends and the public means. So implemented, that standard
prevents the endless train of public misconduct that has fes-
tered under the rational basis test, without hamstringing pub-
lic efforts at environmental protection.

The common law baselines in Lucas thus work to stabi-
lize relations between the multiple layers of the government
and an individual landowner. With the police power ends of
the government properly defined, the only factual questions at
hand are those already identified in Lucas: does a neighbor
(or the public as an agent) have reason to enjoin the develop-
ment. That standard will reduce (for good reason) the levels
of government activity, which in turn should lead to a reduc-
tion in the level of administrative and judicial action in land
use matters. The City simply has no case to impose these
restrictions on Del Monte under California's definition of
nuisance law. See Cal. Civ. Code § 3479 (West 1998) (Nui-
sance Defined):

Anything which is injurious to health, or is
indecent or offensive to the senses, or an obstruc-
tion to the free use of property, so as to interfere
with the comfortable enjoyment of life or property,
or unlawfully obstructs the free passage or use, in
the customary matter, of any navigable lake, or
river, bay, stream, canal, or basin, or any public
park, square, street, or highway, is a nuisance.

A close look at this record shows the evident virtues of
this state law standard. T xe City for over a dozen years used a
combination of exactions and restrictions to foil routine

26

beachfront development, which by no stretch of the imagina-
tion constitutes a nuisance at common law. The first wave in
its assault was the demand that Del Monte set aside the
western third of its land for public beach use and access. That
demand simply imitates on a grander scale the lateral ease-
ments that the California Coastal Commission claimed in
Nollan and the bike and pedestrian path claimed in Dolan.
Next the City imposed on Del Monte a requirement that it
take active steps to preserve the buckwheat habitat for the
Smith's Blue Butterfly (only one of which was observed on
the property in 1984. See Del Monte I], 95 F.3d at 1431.) The
decision could be treated as a simple land use restriction, yet
on the other hand it also looks very much like a special tax for
the privilege of real estate construction that should also be
caught under the Dolan rationale.

Any requirement that certain portions of land be left in its
natural state verges on a demand that the property be conveyed to
the government for use as a nature preserve. But one great advan-
tage of a unified approach to land use regulation is that courts no
longer have to ask the question of whether this government action
amounts to a possessory taking when the landowner may exclude
all others, but cannot enter or use the land himself, and thus is
forced to stand in the same distant relationship to his land as a total
stranger. Why should the government reap the benefits of fee
ownership without having to go through the usual formalities of
taking title to the property? See Pumpelly v. Green Bay Co., 80
U.S. 166 (1871).

More generally, exactions segue into land use restrictions
on the remaining portions of Del Monte’s parcel. As men-
tioned previously, dunes always have high and low points. So
it is an easy maneuver for the state to claim that it is improper
to fill in the low, or “bow!” areas on the land because that will
create environmental hazards. It is then just as easy to claim
that it is also impossible to build on the high portions of the

27

land because the development might block a view corridor to
the ocean, or might be seen from public highways or other
public lands. Under the rational basis test advocated by the
City, the state can multiply without end the permissible objec-
tives of land use regulation and then choose the broadest
possible means to achieve them. Each individual restriction is
looked at in isolation even when in combination they wreak
devastation on any and all development programs.

IV. State and Local Governments Have Taken Advantage
of Judicial Deference to Frustrate The Reasonable

Expectations of Property Owners.

The level of deference demanded by the City and its
numerous Amici must fall given the long-track record of
government planning abuse that it fosters. One lesson that
state and local governments learned after Lucas was that a
simple outright prohibition on new development could expose
them to liability for hefty sums from the land rendered worth-
less by their decisions. The political dynamics of state and
local governments, however, quickly resulted in the erection
of partial barriers to either delay or block the development of
land. Just that result happened in South Carolina after Lucas,
when the state’s original flat prohibition against all beach-
front development was scrapped once it became clear that it
was vulnerable to takings challenges. In its place came a far
more complex statutory framework with more elaborate spe-
cial permitting provisons. See S.C. Code Ann. § 48-39-290(D)
(Law Co-op. 1997). Yet the new procedures contain no limita-
tions that force decisions to be made within some reasonable
time after the application has been made. Rather the systems
allow local planning commissions to take advantage of Wil-
liamson County Regional Planning Commission v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985), which holds that
judicial review of planning commission action is normally
precluded until a final judgment has been entered against the
landowner.

28

Unfortunately, Williamson became an open invitation for
planning commissions to kill land use development by plying
developers with endless opportunities to be heard. Tradi-
tionally government was feared for its arbitrary decisions
made without hearings and notice to the parties. The new
wave of abuse, so clearly evident in this case, features endless
inspections, reports, filings and hearings whose sole purpose
is coldly calculated to block access to the courts by postpon-
ing finality until the will of the landowner is broken. The late
Grant Gilmore could well have had planning commissions in
mind when he wrote: “The worse the society, the more law
there will be. In Hell there will be nothing but law, and due
process will be meticulously observed.” Grant Gilmore, The
Age of Anxiety, 84 Yale L. J. 1022, 1044 (1975). Procedural
Hell also has its unintended ironies. In this very case, the
planning commission received five separate proposals for real
estate development and then had the temerity to argue (unsuc-
cessfully) in federal court that Del Monte’s compensation
claim was not yet ripe for adjudication. See Del Monte Dunes
1, 920 F.2d 1496 (9th Cir. 1990).

Planning commissions have also resorted to endless liti-
gation to subvert this Court's holding in First English that
compensation must be paid for final decisions that lead to
regulatory takings that deprive a landowner of all economi-
cally viable use for a limited period of time. First English
carved out an apparently innocent exception for cases “of
normal delays in obtaining building permits, changes in zon-
ing ordinances, variances, and the like which are not before
us.” First English Evangelical Lutheran Church of Glendale
v. Los Angeles County, 482 U.S. 304, 321 (1987). Yet once
again the definition of a “normal delay” has been stretched
beyond all recognition by the California Supreme Court,
which denied compensation for interim losses when the delay
issuing a development permit took place “partly owing to the
mistaken assertion of jurisdiction by a government agency.”
See Landgate, Inc. v. California Coastal Comm'n, 17 Cal. 4th
1006, 953 P.2d 1188 (1998). The landowner has to pay for the
mistakes of the planning agency, which of course gives that
agency painless incentives to make aggressive assertions of

29

jurisdiction. To date, the instant case has resulted in 17 years
of wrangling and confusion. How much better it is for the
City to be put to a clear choice: condemn the land or have
your planning restrictions subjected to a rough proportionality
standard.

No one can claim that rough proportionality to evaluate
state justifications for land use restrictions will solve all the
problems of real estate development in California or any-
where else. But here is a case where the consistent application
of sound constitutional principles should not be deterred by
cries of wolf from local governments who claim that the
takings clause constrains their prerogatives. That it will
indeed do as noted by this Court in First English, 482 U.S. at
321. But it will do so for sound constitutional reasons. The
decision of the Ninth Circuit sends a much needed message to
local governments that their stubborn disrespect for the prop-
erty rights of local landowners carries with it a price.

CONCLUSION

For the foregoing reasons, the decision of the Ninth
Circuit should be affirmed, and the judgment of $1,450,000 in
favor of Del Monte should be affirmed.

Respectfully submitted,

RicnHarp A. Epstein INstTITUTE POR JUSTICE

1111 East 60th Street *Witiam H. Mettor

Chicago, IL 60637 Cunt Bouck

(773) 702-9494 Scorr G. Buttock
Suite 200

1717 Pennsylvania Ave., NW
Washington, DC 20006
(202) 955-1300

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A19. Public record. Not legal advice.