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

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Supreme Court, U.S. :

No. 97-1235 SOS

: ST.

In the

Supreme Court of the etbsacw

October Term, 1997

CITY OF MONTEREY,

Petitioner,

v.

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 AMICI CURIAE

THE WASHINGTON LEGAL FOUNDATION

AND THE ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF RESPONDENTS

DANIEL J. POPEO

PAUL D. KAMENAR

(Counsel of Record)

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Date: July 31, 1998

A AN A TS

CASILLAS PRESS ¢ 1717 K STREET, N.W. ¢ WASHINGTON, D.C. 20036 ¢ (202) 223-1220

——— _ a4 py

BEST AVAILABLE COPY

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE ............. l

SEAT GMeEIE OF Thee CARE 2. cence cccvees l

SUMMARY OF ARGUMENT ................ 3

REPSOL: 0 60 8 bpd wich eailpdaedek sabi abe 4

DEL MONTE WAS ENTITLED TO A JURY

TRIAL UNDER 42 U.S.C. § 1983 AND THE

SEVENTH AMENDMENT ............. 4

A. The Historical Context of § 1 of the Civil

Rights Act of 1871 Shows That Congress

Intended for All Substantive Liability Issues

In Claims for Legal Relief under § 1983 to

Be Decided by a Jury ..........4...- 4

B. The Seventh Amendment Requires That a

Jury Determine Liability in a Claim for

Legal Relief under § 1983 for the Violation

of a Federal Civil Right. ........... 7

THIS COURT SHOULD AFFIRM THE

JUDGMENT OF THE COURT OF APPEALS

BECAUSE THE EVIDENCE SUPPORTED A

FINDING THAT THE PERMIT DENIAL BY

THE CITY DENIED DEL MONTE OF

ECONOMICALLY VIABLE USE OF ITS LAND

OR DID NOT SUBSTANTIALLY ADVANCE

LEGITIMATE STATE INTERESTS ...... 14

A. The Appropriate Standard of Review . 15

B. The Evidence Showed Del Monte Was

Denied All Economically Viable Use of its

Property; The Purchase of Property by a

Government Agency for Public Uses Does

Not Establish a Defense to that Claim. 17

od An Adjudicative Decision to Restrict the

Use of Certain Property Should Be

Subjected to Heightened Scrutiny under the

Jusi Compensation Clause ......--- 23

D. The City’s Own Testimony Shows That it Is

Liable for Taking Del Monte’s

Property .....--- eee eee eee 28

CONCLUSION ...... cece creer e rere eeeees 30

TABLE OF AUTHORITIES

Cases: Page

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

Baltimore & P. R. Co. v. Fifth Baptist Church,

DME OOM 0 ec 6ce wee es 6, 10, 11

Barnes v. United States,

241 F.2d 252 (9th Cir. 1956). ......... 10

Barron v. Mayor of Baltimore,

el rae 5, 6, 10

Bauman v. Ross, 167 U.S. 548 (1897)... 2.2... 10, 20

Benner v. Tribbitt, 190 Md. 6 (1947) .......... 16

Bonaparte v. Camden & A. R. Co.,

a ED cc ccmceceececes rs)

Bowles v. United States,

I ee ee 22

Brooke Group Lid. v. Brown & Williamson Tobacco

Corp., SWB U.S. 209 (1993) ........... 28

Bushell’s Case, Vaughan 135 (1670) ............ Y

Carl M. Freeman, Inc. v. State Rds. Comm'n,

i an al a a 21

Curtis v. Loether, 415 U.S. 189 (1974) ... 2.0... 7

Del Monte Dunes v. City of Monterey,

920 F.2d 1496 (9th Cir. 1990) ........... 3

Del Monte Dunes v. City of Monterey, |

95 F.3d 1422 (9th Cir. 1996) ......... passim

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

Dowsey v. Village of Kensington,

177 N.E. 427 (N.Y. 1931) .......... 19, 21

Eastern Enterprises v. Apfel,

I oie on 5 nn oe ths & 14, 27

Feltner v. Columbia Pictures, Inc. ,

See ERE gw cw cnens 5, 7,9, 11

First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987) ........ ll

Formanek v. United States,

26 Cl. Ce. 392 (IDSZ) 0 ww wee eee 22

Gardner v. Trustees cf Newburgh,

2 Johns. Ch. 162 (N.Y. Ch. 1816) ....... 12

Granfinanciera, S. A. v. Nordberg,

G00 UB. SB CHSGRD «cc ccc ccc cece 7, 13

Hafer v. Melo, SOL U.S. 21 (1991) ©. 2 ee ee ees 14

Higg-A-Rella, Inc. v. County of Essex,

647 A.2d 862 (N.J. Super) (1994) ........ 14

Howard County v. JJM, Inc.,

482 A.2d 908 (1984) .......--- eee 25

Hoyert v. Board of County Comm'rs,

276 A.26 SEB ISTE) 2. ww we wee cece 21

Lehman v. Nakshian, 453 U.S. 154 (1981) ......-. 14

Lindsay v. Commissioners,

2 S.C.L. (2 Bay) 38 (1796) .........--- 12

Lomarch Corp. v. Mayor of Englewood,

237 A.2d 881 (1968) ........-- 22 eee 21

Lucas v. South Carolina Coastal Council,

§05 U.S. 1003 (1992) ........... 1, 19, 22

Maryland-Nat'l Capitol Parks & Planning

Comm’n v. Chadwick, 286 Md. 1 (1979) . . 20, 21

Maund v. Monmouthshire Canal Co. ,

4M. & G. 452 (1842) ........--54es 11

Moale v. Baltimore, 5 Md. 314 (1854) ..... 6, 20, 21

Monell v. Department of Soc. Serv.,

436 U.S. G6B (19TB) . ww ee ees 5

Moore v. City of East Cleveland,

Pr Ril © OY: eer 27

Nollan vy. California Coastal Comm'n,

483 U.S. $25 (1967)... we eee wees passim

Ornelas v. United States, 517 U.S. 690 (1996) .... 16

Paine v. Partridge, 1 Shower 231 (1794) ........ i2

Parsons v. Bedford, 3 Pet. 433 (1830) .......... 9

Penn Cent. Transp. Co. v. New York City,

438 U.S. 106 (ISTE) 0. ww ec ccc cece 23

v

Pumpelly v. Green Bay Co., 80 U.S. 166 (1871) .. 6, 10

Richards v. Washington Terminal Co.,

EE ere 11

J.E. Riley Inv. Co. v. Commissioner of Internal Rev.,

ee ee ee ND he a ee WEN 15

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

Sear eee Gee PA i wks ce k 11, 25

Schwartz v. U.S. Dept. of Justice,

435 F. Supp. 1203 (D.D.C. 1977),

aff'd, 59S F.2d 888 (D.C. Cir.) ........... 14

Schwimmer v. Sony Corp. of Am.,

677 F.2d 946 (9th Cir. 1982)........... 15

Spaid v. Board of County Comm'rs,

ee ee 19, 21

Strain v. Payette Sch. Dist.,

134 F.3d 379 (9th Cir. 1998)........... 15

Surget v. Lapice, 49 U.S. 48 (1850) .......... 14

Syufy Enter. v. American Multicinema,

793 F.2d 990 (9th Cir. 1986)........... 17

The People v. Platt, 17 Johns. 195 (N.Y. 1819)... . 12

Transportation Company v. Chicago,

Co 6, 10

Traver v. Meshiry,

627 F.2d 934 (9th Cir. 1980)........... 17

Troy Campus v. City of Troy,

349 N.W.2d 177 (Mich.App. 1984) .... 19, 22

Tull v. United States, 481 U.S. 412 (1987)... . 7, 8, 10

United States v. Bajakajian, 118 S.Ct. 2028 (1998) .. 16

United States v. Bodcaw Co., 440 U.S. 202 (1979) . 10

United States v. Lee, 106 U.S. 196 (1882) ....... 14

Wyatt v. Cole, 504 U.S. 169 (1992) ............ 6

Yee v. City of Escondido, 503 U.S. 519 (1992) .... 27

Fg. SS £4 ever rerre ee ee. passim

U.S. Comet. AGRE THe. <0 vec oe viele tie 60% 7,17

OS. Cont... BEE BEY. .ccvvewdedervex 23, 26

Be) ik Sake ob ok 2 0 Ole iim OK passim

Tucker Act 42 U.S.C. §§ 4601-4655 .......... 10

Reap AGRE THD oc owe cv ecb eect ees He% 13

Pus. B Ge. We Ae boo 00d: 666 eb ked 6 Sen 15

. & - % 5 eer Tee eee ee 16

Miscellaneous:

Anderson, | American Law of Zoning (1986) ...... 18

| Ge RR. Ge. 6 b.bee.n 0 abe ee eeies oss 12

Eric Grant, A Revolutionary View of the Seventh

Amendment and the Just Compensation

Clause, 91 Nw. U. L. Rev. 144 (1996) 8, 12, 13

D. Hagman, Urban Planning and Land

Development Control Law (1975) ........ 20

Dwight Arven Jones, A Treatise on the Negligence

of Municipal Corporations, § 15 (1892) .... 12

5A James Wm. Moore et al., Moore’s Federal Practice,

CRO Se Ba is sb Hd Cie 4 0 'é 0 15

Zeigler, | Ratkopf’s The Law of Zoning

and Planning (1991) .............. 18, 22

Edward H. Zeigler, Jr., Shaping Megalopolis:

The Transformation of Euclidean Zoning by

Special Zoning Districts and Site-Specific

Techniques, in 1993 ZONING AND PLANNING

LAW HANDBOOK (Kenneth H. Young ed.,

OER cbig che ho V6 0s Cw EMME SEE Oe 18

INTERESTS OF AMICI CURIAE'

The Washington Legal Foundation (WLF) is a national

non-profit public interest law and policy center based in

Washington, D.C., with supporters nationwide, including

many property owners who are faced with confiscatory

land-use regulations at the federal, state, and local levels.

WLF has participated as amicus curiae in numerous Fifth

Amendment regulatory takings cases in this and other

courts. See, e.g., Dolan v. City of Tigard, 512 U.S. 374

(1994); Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992).

The Allied Educational Foundation (AEF) is a non-

profit charitable and educational foundation based in

Englewood, New Jersey. Founded in 1964, AEF is

dedicated to promoting sound principles in diverse areas of

constitutional law and policy, including regulatory takings.

AEF has appeared with WLF as amici curiae in numerous

cases before this Court, including Dolan and Lucas.

STATEMENT OF THE CASE

In the interests of judicial economy, amici adopt by

reference the statement of the case as presented in the brief

filed by respondents Del Monte Dunes, et al. (collectively

"Del Monte"). Nevertheless, amici will briefly present

those aspects of the case as are pertinent to the arguments

presented in this brief.

' Pursuant to Supreme Court Rule 37.6, no counsel for a

party in this case authored this brief in whole or in part, and no

persons or entities other than amicus Washington Legal

Foundation, its supporters, or counsel, contributed financially to

the preparation or submission of this brief. This brief is being

filed with the written consent of the parties which have been

filed with the Clerk.

2

Del Monte owned a 37-acre rectangular shaped parcel

of land on the California coast within the City of Monterey

("City") that once was an industrial site. Del Monte

wished to develop the property for housing in conformance

with the local zoning plan which permitted up to

approximately 900 multi-family units for this size property.

JA 158. However, because of environmental and other

concerns expressed by the City in its desire to keep the

property in its natural state, Del Monte was forced over a

period of years to drastically scale back its plans ultimately

to 190 units. The City initially approved the 190-unit plan

with conditions that Del Monte was forced to meet. Del

Monte was required to dedicate the western one-third of the

property, the dune area which fronted the ocean, because

the City wanted to retain the property for public beach use

and access. Del Monte was even required to build a

parking lot for the public with access through its

development. In addition to this conveyance of an interest

in real property, the City also required the reservation of

the eastern third of the parcel adjacent to the highway for

as a public viewshed. That left only the remaining central

portion of the property available for the development.

Unfortunately for Del Monte, that area contained

buckwheat plants which are the habitat for the Smith’s Blue

Butterfly, an endangered species, which had not been seen

on the property. Del Monte’s offer to move the buckwheat

habitat to the other areas of the property were rejected.

While Del Monte was able to meet the conditions imposed,

and would even improve the buckwheat habitat area, the

City changed its mind and denied the permit. In effect, the

City forced Del Monte to paint itself into a corner, and

then told Del Monte it wasn’t allowed to stand there.

Del Monte filed a civil rights lawsuit under 42 U.S.C.

§ 1983 claiming, inter alia, that the City had violated Del

Monte’s Fifth Amendment right to be free from

3

uncompensated takings of private property for public use.

The City unsuccessfully argued that Del Monte’s claim was

not ripe for review because Del Monte did not seek to scale

down its plans for a sixth time. The futility of further

development proposals formed the basis of the Ninth

Circuit's ripeness determination in Del Monte Dunes v. City

of Monterey, 920 F.2d 1496, 1502 (9th Cir. 1990) (Del

Monte I). The City did not further appeal this decision and

its conclusion is the law of the case.

The case was remanded for trial and the jury found in

Del Monte’s favor after properly being instructed (at the

insistence of the City) that a takings occurs if the denial of

the permit denied Del Monte all economically viable use of

its land or did not substantially advance legitimate state

interests. See Agins v. City of Tiburon, 447 U.S. 255

(1980). The jury awarded Del Monte damages for a

temporary taking only, because during the litigation, the

State of California, which had its eye on the property all

along to be used as a state park, purchased the heavily

restricted property at a substantially reduced price.

On the second appeal, the Ninth Circuit, in a well-

reasoned opinion, affirmed the trial court’s denial of the

City’s motion for judgment as a matter of law and for a

new trial without a jury. Del Monte Dunes v. City of

Monterey, 95 F.3d 1422 (9th Cir. 1996) (Del Monte II).

SUMMARY OF ARGUMENT

The court of appeals correctly concluded that Del

Monte’s § 1983 civil rights action was properly tried before

a jury. That conclusion is supported by both the historical

context of § 1983 as well as the Seventh Amendment's

guarantee to trial by jury inasmuch as Del Monte’s

action for damages against the City was in the nature of a

4

common law actions of trespass or tort, actions which were

historically tried before juries.

The court of appeals also correctly found that there

was sufficient evidence before the jury to support both

theories of takings liability as instructed. This Court

should reject the City’s facile argument that the subsequent

sale of the property to the State at a reduced price

precludes a finding of a denial of all economically viable

use of the property as a matter of law.

The City and its amici are mistaken in arguing that the

“rough proportionality" standard of Dolan v. City of Tigard

does not apply in this case because in their view, this case

does not involve exactions or dedications of real property.

Quite the contrary; the beach dedication, habitat

conservation easement, and viewshed reservations of the

kind in this case are all typical interests in real property

that are regularly bought and sold. Even if "rough

proportionality" does not apply in this case, this Court’s

taking jurisprudence demonstrates that a heightened level of

scrutiny or review is required nevertheless, rather than the

simple rational basis standard urged by the City.

ARGUMENT

I. DEL MONTE WAS ENTITLED TO A JURY

TRIAL UNDER 42 U.S.C. § 1983 AND THE

SEVENTH AMENDMENT

A. The Historical Context of § 1 of the Civil Rights

Act of 1871 Shows That Congress Intended for

All Substantive Liability Issues In Claims for

Legal Relief under § 1983 to Be Decided by a

Jury.

5

Before inquiring into the applicability of the Seventh

Amendment, this Court first will inquire whether the

Statute in question may fairly be construed to provide the

right to a jury trial. Feltner v. Columbia Pictures, Inc.,

118S. Ct. 1279, 1283 (1998). Here, Section | of the Civil

Rights Act of 1871, now codified as 42 U.S.C. § 1983, is

a Reconstruction era statute enacted to enforce the

provisions of the Fourteenth Amendment to the

Constitution of the United States.

As an initial matter, the question of whether Del

Monte was entitled to a jury trial would be properly before

this Court if Del Monte had lost its case tried before a

judge after denying Del Monte’s request for a jury trial.

The City, which did lose, does not have a right not to have

a jury, and any error in that regard is harmless. In any

event, amici submit that the widespread practice of using

jury trials in § 1983 actions, and numerous circuit court

holdings that such jury trials are indeed required, are

firmly supported by the historical context of § 1983.

In Monell v. Department of Social Services, 436 U.S.

658 (1978), this Court meticulously examined the

legislative history of § 1983 to hold that a municipal

corporation, such as the City of Monterey, is liable under

§ 1983 in a claim for money damages for the violation of

a federal civil right. As Monell made clear, Section | of

the Fourteenth Amendment was drafted with the case of

Barron v. Mayor of Baltimore, 7 Pet. 243 (1833) in mind,

in which a state court had denied compensation for an

alleged uncompensated taking, and there was no federal

remedy. Thus, Congress expressly intended § 1983 to

provide a federal remedy for the practice, such as occurred

prior to the adoption of the Fourteen Amendment, of

uncompensated takings by municipal corporations. Monell,

436 U.S. at 686-87.

6

Congress certainly did not adopt a federal remedy for

uncompensated takings (or the deprivation of numerous

other federal rights, privileges, or immunities) because

state remedies were not available.’ Rather, the Barron case

graphically illustrated the inadequacy of relying on state

remedies to enforce federal constitutional rights. Thus,

Congress enacted § 1983 precisely because a federal civil

remedy was deemed to be the only adequate means for

redressing the violation of a federal civil or private right,

even though most states had adopted by this time, at least

on paper, just compensation provisions in their respective

constitutions.

The scope of relief provided under § 1983 must be

interpreted within this remedial context. Cf. Wyatt v. Cole,

504 U.S. 169, 171 (1992) (KENNEDY, J., concurring). The

language of the statute is inclusive, and strongly suggests

that Congress intended the term “action at law” to have its

full meaning, at least such as that was commonly

understood in the federal courts of law around 1871 when

§ 1983 was enacted.

Prior to the merger of the courts of law and equity,

liability in a claim for money damages against a municipal

corporation was tried before a jury. See, e.g., Pumpelly v.

Green Bay Company, 80 U.S. 166 (1871); Transportation

Company v. Chicago, 99 U.S. 645 (1878); and Baltimore

& P. R. Co. v. Fifth Baptist Church, 108 U.S. 317 (1883).

2 By 1871, Maryland, like most other states, had

incorporated the principle of just compensation into its

constitution. See Moale v. Baltimore, 5 Md. 314 (1854). The

1796 corporate charter of the City of Baltimore conferred on the

City the right to sue and to be sued. This probably explains why

the Maryland Court of Appeals did not object to the Barron case

being tried at law. 7 Pet. at 244.

7

These were “actions on the case” which, like other law

actions, were tried before juries. See Feltner v. Columbia

Pictures, Inc., supra, 118 S. Ct. at 1285, 1286.

Accordingly, Del Monte’s claim for money damages

against the City is an action at law triable before a jury

under § 1983.

B. The Seventh Amendment Requires That a Jury

Determine Liability in a Claim for Legal Relief

under § 1983 for the Violation of a Federal

Civil Right.

Even in the absence of any express legislative intent

providing for a jury trial, or indeed, even where a statute

purports to preclude a right to a jury trial, the Seventh

Amendment guarantee of the right to a jury trial in a

federal cause of action may nevertheless apply in an

appropriate case. Feltner v. Columbia Pictures, Inc.,

supra; Granfinanciera, S. A. v. Nordberg, 492 U.S. 33

(1989); Tull v. United States, 481 U.S. 412 (1987); Curtis

v. Loether, 415 U.S. 189, 193 (1974).

In determining whether the Seventh Amendment

requires a jury trial in a statutory action, this Court will

first “compare the statutory action to 18th-century actions

brought in the courts of England prior to the merger of the

courts of equity and law.” Granfinanciera, S. A. Vv.

Nordberg, 492 U.S. at 41, quoting Tull v. United States,

481 U.S. at 417-18. Then this Court will “examine the

remedy sought and determine whether it is legal or

equitable in nature.” Ibid.

The City argues that nothing equivalent to the modern

civil rights complaint existed at common law. Pet. Br. at

22. This alleged “fact” leads the City to look for what it

believes is the appropriate historical parallel to the modern

practice. The City quickly concludes that an eminent

8

domain proceeding, for which it claims a jury was not

required at common law, presents such a parallel. Ibid. at

23. The City is mistaken.

In the first place, the notion that juries were not

employed in condemnation cases has been refuted.’

Secondly, the City’s conclusion does not follow from the

premise that a takings action may be compared to a

eminent domain action. Amici agree that the matter of

who initiates a “takings” claim is not determinative of the

Seventh Amendment right; but the petitioner is mistaken if

it assumes that if the government is the initiator, no jury

trial is required.* Further, the fact that “takings” claims

and eminent domain proceedings may be alike in one

respect does not mean that they cannot be distinguished on

other grounds. Indeed, as amici will presently show, the

case at bar is distinguishable from an eminent domain

> Historical practice shows that trial by jury was usually

available on appeal, even if not in the first instance. Eric Grant,

A Revolutionary View of the Seventh Amendment and the Just

Compensation Clause, 91 Northwestern University Law Rev.

144, 181 (1996) (hereinafter "Grant"). While amici believe that

Grant is correct in his evaluation of English and colonial

condemnation practice, amici nevertheless believe that the

question is not determinative of the case at bar since “takings”

claims owe their historical origins to common law conceptions

of municipal liability in tort or trespass where juries were

indisputably used to determine liability and damages.

* For example, when the government tries to “take”

property in the form of assessing civil penalties for alleged

violations of law, that proceeding is initiated by the government,

and yet a jury trial still is required to determine whether the

party should be held liable in the first instance. Cf Tull v.

United States, supra.

9

proceeding in terms of important common law principles.

Since Bushell’s Case, Vaughan 135 (1670), the purpose

of a jury at English common law has been to determine,

not to advise. As this Court explained in Feltner, the

phrase, “’Suits at common law’ . . . refer{s] ‘not merely

[to] suits, which the common law recognized among its old

and settled proceedings, but [to] suits in which /egal rights

were to be ascertained and determined, in contradistinction

to those where equitable rights alone were recognized, and

equitable remedies were administered.” Feltner vv.

Columbia Pictures Television, Inc., supra, at 1284 (quoting

Parsons v. Bedford, 3 Pet. 433, 447 (1830) (second

emphasis added).

In a similar vein, in Bonaparte v. Camden & A. R.

Co., 3 F. Cas. 821 (1838), the court traces the English

common law jury back to the Magna Carta’s prohibition on

the arbitrary seizure of property. Applying this principle

to eminent domain, Justice Henry Baldwin, riding circuit,

further explained:

We are therefore of opinion that the trial by jury is

preserved inviolate in the sense of the constitution,

when in all criminal cases, and in civil cases when a

right is in controversy in a court of law, it is secured

to each party. In cases of this description [i.e.

eminent domain cases], the right to take, and the right

to compensation, are admitted; the only question is the

amount, which may be submitted to any impartial

tribunal the legislature may designate.

Id. at 829 (1838) (emphasis added). In other words, the

English common law would allow the estimate of the

damages in eminent domain to be decided by any impartial

tribunal, but would require the issue of liability in criminal

or civil proceedings to be decided by a jury. This Court

10

has reached a similar conclusion when considering the right

to a jury trial within the context of civil penalties. Tull v.

United States, 481 U.S. 412 (1987). Compare Bauman v.

Ross, 167 U.S. 548, 593 (1897) (“By the Constitution of

the United States, the estimate of the just compensation for

property taken for public use, under the right of eminent

domain, is not required to be made by a jury") (emphasis

added). Thus, if the City were to concede liability, amici

would then agree that the case at bar would indeed be

“analogous” to an eminent domain proceeding.°

In its haste to compare “takings” claims and

condemnation proceedings, the City overlooks numerous

and obvious alternative comparisons among common law

actions. From an historical perspective, 19°-century

“takings” claims against municipal corporations not only

were considered analogous to common law trespass or tort

claims, they were common law trespass or tort claims.

See, e.g. Barron v. Mayor of Baltimore, 7 Pe 243 (1833);

Pumpelly v. Green Bay Company, 80 1 . 166 (1871)

(action in trespass on the case); Transporia..on Company v.

Chicago, 99 U.S. 645 (1878) (action in trespass on the

case); Baltimore & P. R. Co. v. Fifth Baptist Church, 108

* This is a federal civil rights case involving an

infringement of Del Monte’s private right to be free from an

uncompensated taking; it is not an “inverse condemnation” case

filed under state law. The term “inverse condemnation”

appeared for the first time in a federal circuit court decision in

Barnes v. United States, 241 F.2d 252, 255, n. 10 (9th Cir.

1956), and in this Court in United States v. Bodcaw Company,

440 U.S. 202, 204 (1979). In each instance, the term was used

within the context of an implied contract theory of liability under

the Tucker Act (42 U.S.C. §§ 4601-4655). The case at bar is

premised on the absence of a comparable state statutory

provision applicable to Del Monte at the time of the taking.

U.S. 317 (1883) (nuisance). See also Richards v.

Washington Terminal Co., 223 U.S. 546, 556-58 (1914)

(interpreting Fifth Baptist Church, supra, as a takings

case). An “action on the case” or “trespass on the case”

were common law actions that did not involve a physical

occupation of property by another as would be the case for

simple trespass. Yet such common law actions, which

formed the basis of many of these cases, existed and, as

previously noted, were triable before a jury at English

common law before the merger of the courts of equity and

law in 1872. See Feltner v. Columbia Pictures Television,

Inc., supra, at 1285, 1286.

This practice did not change after the Revolution. Nor

did it change merely because the target of the claim was a

corporation established under government charter. The

Fifth Amendment's Takings Clause did not alter the pre-

existing forms of relief. It limited the ability of

government to claim immunity from those pre-existing

forms. Thus, while it may be said, as this Court rightly

stated in First English Evangelical Lutheran Church vy.

County of Los Angeles, 482 U.S. 304 (1987), that “The

form of the remedy did not qualify the right,” 482 U.S. at

315 (quoting San Diego Gas & Electric Co., 450 U.S. at

655 (BRENNAN, J., dissenting)), it equally may be said,

that the nature of the right did not qualify the form of the

remedy. Otherwise, the Fifth Amendment’s Takings

Clause would become a limitation on the rights of the

citizen, rather than on the power of government.

Municipal corporations were not entirely immune from

suit under the English common law. Municipal

corporations could, and commonly were, sued at law in

actions sounding in contract, trespass on the case, nuisance,

or other torts. Maund v. Monmouthshire Canal Co., 4M.

12

& G. 452 (1842); Paine v. Partridge, 1 Shower, 231

(1794); 1 Coke Inst. 68.°

Inspired by the adoption of the Just Compensation

Clause at the federal level, citizens began bringing common

law actions in state courts to vindicate what they perceived

to be their right to compensation against municipal

corporations. Such prototypical “takings” cases viewed the

offending municipal corporation variously as being liable

for violation of an implicit contract (see e.g. The People v.

Platt, 17 Johns. 195, 217 (N.Y. 1819)), or as neglecting an

affirmative obligation (see e.g. Gardner v. Trustees of

Newburgh, 2 Johns. Ch. 162 (N.Y. Ch. 1816)), or as

committing a common tort (see e.g. Lindsay vy.

Commissioners, 2 §.C.L. (2 Bay) 38, 62 (1796)).

Sometimes, an action was brought in equity, sometimes an

action was brought at law, depending on the nature of the

requested relief. In each case, where the right to

compensation was recognized, pre-existing theories of

municipal liability were applied to virdicate a uniquely

American conception of the right to compensation.

One of the principle grievances of American colonists

against England prior to the Revolution was the gradual

expansion of jurisdiction of the vice-admiralty courts. See

Grant, supra, at 149-159. While an action could not be

brought against the Crown, common law recognized the

® See Dwight Arven Jones, A Treatise on the Negligence

of Municipal Corporations, § 15 at 21 (1892) (“There seems to

be no time when corporations were wholly free from

responsibility for torts by the common law... [FJor numerous

instances are mentioned in the ancient books where corporations

were made liable in actions on the case for trespass and other

torts.”). Municipal tort liability extended also to the neglect of

a corporate duty which inflicted special damage. /bid.

the seizure, and to have liability in that action determined

by a jury of one’s peers (who were not appointed by the

Crown), is an important and historic restraint which the

common law, and the Constitution, place on the power of

government.’ While government at all levels may at times

find this limitation on the exercise of its powers to be

inconvenient, it is nevertheless a restraint which our

” See e.g. Granfinanciera, S. A. v. Nordberg, supra, at 61

(“Congress cannot eliminate a party’s Seventh Amendment right

to a jury trial merely by relabeling the cause of action to which

it attaches and placing exclusive jurisdiction in an administrative

agency or a specialized court of equity.”).

14

nation’s history, and the legislative history of the Civil

Rights Act of 1871, have proved necessary.*

fl. THIS COURT SHOULD AFFIRM THE

JUDGMENT OF THE COURT OF APPEALS

BECAUSE THE EVIDENCE SUPPORTED A

FINDING THAT THE PERMIT DENIAL BY THE

CITY DENIED DEL MONTE OF

ECONOMICALLY VIABLE USE OF ITS LAND

OR DID NOT SUBSTANTIALLY ADVANCE

LEGITIMATE STATE INTERESTS.

* Amici recognize that a claim against the United States

for just compensation under the Takings Clause must be brought

to a special tribunal that sits without a jury “in the first -

instance.” Eastern Enterprises v. Apfel, 118 S. Ct. 2131, 2144

(1998). See also Brief of the U.S. at 2, n.1, citing Lehman v.

Nakshian, 453 U.S. 154 (1981); see also ibid. at 27, n.15. But

this does not preclude a subsequent action at law (before a jury)

against government officials attempting to enforce a confiscatory

regulation or policy. See, e.g., United States v. Lee, 106 U.S.

196 (1882); Hafer v. Melo, 501 U.S. 21 (1991); see also Surgett

v. Lapice, 49 U.S. 48 (1850) (an action of ejectment in a court

of common law is strictly an action at law and in no respects

analogous to proceeding in equity to remove cloud from title);

Higg-A-Rella, Inc. v. County of Essex, 647 A.2d 862, 864 (NJ.

Super) (1994); Schwartz v. U.S. Dept. of Justice, 435 F. Supp.

1203 (D.D.C. 1977), aff'd, 595 F.2d 888 (D.C. Cir.) (common

law remedies may co-exist with and be broader in scope than

statutory remedies on the same subject; a party may therefore

in. *ke either one or both unless the statute expressly repeals

such common law remedies). Nor would such a common law

action against government officials infringe upon the sovereignty

of the United States, or any other governmental entity for that

matter.

15

A. The Appropriate Standard of Review

The City concedes (for obvious reasons) that the Dolan

“rough proportionality” standard was not included in the

instructions to the jury by the trial court. Nevertheless, the

City believes that the Ninth Circuit's discussion of Dolan

provides grounds for an unqualified reversal without orders

for a new trial. Pet. Br. at 50.

At the outset, it is important to determine the

appropriate standard of review. The Ninth Circuit

discussed the Dolan decision in the course of the court's

affirmance of the trial court's denial of the City’s motion

for judgment as a matter of law (formerly judgment

n.o.v.). The Ninth Circuit recognized that a trial court's

denial of a motion for judgment as a matter of law under

Rule 50(b) is subject to de novo review on appeal. Del

Monte II at 1426. The function of an appellate court

reviewing the denial of a motion for judgment as a matter

of law is essentially the same as the trial court.

Schwimmer v. Sony Corporation of America, 677 F.2d 946,

951-52 (9th Cir. 1982). See also Strain v. Payette School

District, 134 F.3d 379 (9th Cir. 1998); 5A Moore’s

Federal Practice, § 50.07(2) (2d ed. 1981). Rule 50(b)

and the controlling standard of appellate review of a trial

court’s denial of a motion under Rule 50(b) give effect to

important Seventh Amendment principles prohibiting the

reexamination of a jury’s factual findings except as

provided by common law.

Even if, for the sake of argument, the Ninth Circuit

came to the correct conclusion for “all the wrong reasons” ,

that would not justify disturbing the jury's verdict. A party

who prevailed in the court of appeals can have the

judgment affirmed on any valid grounds, not just the ones

articulated by the court. J.E. Riley Inv. Co. y.

Commissioner of Internal Rev., 311 U.S. 55, 59 (1940).

16

Cf. Fed. Rule Civ. Proc. 61 (all errors and defects to be

disregarded if “substantial rights of parties" are not

affected).°

In the case at bar, the jury was instructed to find in

favor of Del Monte if “the preponderance of the evidence

establishes that there was no reasonable relationship

between the city’s denial of the claims proposal and

legitimate public purpose,” or if the permit denial deprived

Del Monte of the “economically beneficial use” of its land.

Del Monte II, at 1428. As the City does not object to these

jury instructions (after all, the City insisted on them), the

* Amici recognize that in limited circumstances, this Court

has subjected the determination of a trial court or state court to

de novo appellate review because the nature of the underlying

issue calls for “the application of a constitutional standard to the

facts of a particular case, and in this context de novo review of

that question is appropriate.” United States v. Bajakajian, 118

S. Ct. 2028, 2038, n.10) (1998) (determining the excessiveness

of criminal fine imposed by trial court), citing Ornelas v. United

States, 517 U.S. 690, 697 (1996) (imposition of judicia, action

by trial court). The City’s reliance on Ornelas, Pet. Br. at 31,

is misplaced in the context of the issues in this case. Ornelas

and Bajakajian say nothing about whether an issue should be

submitted to a jury in the first place. Rather, they deal only

with the standard of appellate review of a trial judge’s finding

with respect to issues nof traditionally decided by juries where

the application of a constitutional standard is concerned. In the

case at bar, however, the Seventh Amendment's Reexamination

Clause provides the rule for appellate review of jury verdicts.

Nor does it follow that the jury’s verdict may be nullified by

supposed inconsistent findings by a trial judge when the verdict

is supported by the evidence. See Benner v. Tribbitt, 190 Md.

6, 15 (1947) (“If any of the issues submitted to a jury were

material or pertinent, the verdict (if supported by evidence)

cannot be nullified by contrary findings by the court.”).

17

question is simply whether the jury’s verdict is supported

by the evidence. '°

B.

Agency for Public Uses Does Not Establish a

Defense to that Claim.

There can be no doubt that the jury was presented with

sufficient evidence demonstrating that the denial of the

permit denied Del Monte the economically viable use of its

‘0 The jury rendered a general verdict which did not

differentiate between the two alternate theories of takings

liability. An error in the instructions or submission of evidence

on one theory of liability sometimes requires a new trial. But

the court of appeals and this Court has the discretion to attribute

the verdict to the alternate theory. Traver v. Meshiry, 627 F.2d

934, 938 (9th Cir. 1980) (KENNEDY, J.) (“Where more than one

theory of recovery has been submitted to the jury in a civil case,

and where on appeal it is claimed that as to one of the theories

there was a lack of evidential support or an error of law in

submitting the theory to the jury, the reviewing court has

discretion to construe a general verdict as attributable to another

theory if it was supported by substantial evidence and was

submitted to the jury free from error.”). The court below,

however, believed it had to determine whether the evidence

supported both theories of takings liability. Del Monte Il at

1428, citing Syufy Enter. v. American Multicinema, 793 F.2d

990, 1001 (9th Cir. 1986). Whiie amici believe this case lends

itself more to the Traver either/or analysis, the evidence supports

both theories of takings liability. In any event, the question of

appellate review of a jury verdict is to be resolved by common

law as provided by the Seventh Amendment's Reexamination

Clause.

18

property. Del Monte showed that the City exacted the

western one-third of the property for public beach use and

access and the eastern third for a public viewshed. Finally,

Del Monte showed that the City’s categorical permit denial

prevented Del Monte from building on the remaining

portion of the parcel in order to protect butterfly habitat.

Del Monte’s experts concluded that the property was left

essentially unmarketable. (JA 254-258.) Del Monte met

its initial burden of production. In response, the City

evidently failed to meet its burden of production to either

rebut the factual basis of Del Monte’s denial of economic

viability claim or to mount an affirmative defense. Rather,

the City presented as a defense only the purchase of the

subject property by a government agency in 1991 for half

of its value. See Pet. Br. at 10.

The court of appeals correctly rejected the City’s

argument that, as a matter of law, the purchase of the

property precluded a finding of a taking by the jury on the

economically viable use theory. Del Monte II at 1432. In

doing so, the court articulated several compelling reasons

why such a buy-out does not obviate a finding of a taking.

Id. at 1432-33. Amici note that the reduction in value of

Del Monte’s property caused by development restrictions

and the subsequent purchase of this white elephant by the

government "on the cheap" is simply a new variation of an

old theme.

Early Euclidean zoning was designed primarily to

separate incompatible uses and to promote orderly

development. See generally, Zeigler, 1 Ratkopf’s The Law

of Zoning and Planning §§ 1.01 et seq. at 1-1, 1-22 (1991);

and Anderson, 1 American Law of Zoning §§ 3.07 et seq.

at 96-104 (1986). More recently, the use of special zoning

districts and ad hoc land use techniques have become

commonplace; yet their use raises concerns not implicated

by more conventional forms of zoning. This is particularly

19

so where contributions of land or money are exacted on a

more or less ad hoc basis, see Nollan v. California Coastal

Commission, 483 U.S. 825 (1987) and Dolan v. City of

Tigard, 512 U.S. 374 (1994), or where, as here, the

government authorities practically reserve the land for a

use that closely resembles a common object of eminent

domain. See Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992).

The history of zoning law provides numerous examples

of confiscatory restrictions imposed to preserve the social

amenity of undeveloped land for the benefit of existing

residents. The cases of “buffer zoning" come to mind.

See, e.g., Spaid v. Board of Co. Comm’rs, 259 Md. 369,

269 A.2d 797 (1970); and Dowsey v. Village of Kensing-

ton, 177 N.E. 427 (N.Y. 1931). See also Troy Campus v.

City of Troy, 349 N.W.2d 177, 180-81 (Mich. App. 1984)

(traffic problems caused by previous zoning decisions

cannot be solved by downzoning last vacant lot in a

commercial district to residential use); and Lucas v. South

Carolina Coastal Council, 505 U.S. at 1073-74 (STEVENS,

J., dissenting) (citing cases). The more developed a

surrounding area becomes, the more valuable its remaining

undeveloped land becomes for the social amenity which the

undeveloped land provides. Sometimes neighboring

residents mistakenly believe that they have a legal right to

the status quo. Where land is reserved for use in its

natural state, as it is being required here, there is the

heightened risk (as opposed to a typical risk associated with

other land use regulations), that it is being pressed into

some form of public service. See Lucas v. South Carolina

Coastal Council, 505 U.S. at 1018. However, the

20

reservation of land for other public or quasi-public uses

presents many of the same concerns. ''

For example, street reservation statutes go back almost

as far as this nation’s history. See Bauman v. Ross, 167

U.S. 548 (1897). In the 19th century, municipalities

commonly established general plans to guide future

development of the city in the placement of streets and

roads and other public facilities. Land was commonly

reserved for future public improvements at the time of

subdivision plat approval. The land was then opened using

the power of eminent domain. It didn’t take long for

someone to figure out that it might be cheaper to acquire

the land for a needed public street or road if the land

remained in an undeveloped condition.

Thus, by an act of 1817, the City of Baltimore

provided that when a street should be opened, only nominal

damages would be paid to the owner of the land lying

within the roadbed since the land was to be valued as

unimproved and un-improvable. The Maryland Court of

Appeals termed the act of 1817 “which denies to the

proprietor the use of his land, as nothing short of an act of

confiscation.” Moale v. Baltimore, 5 Md. 314, 321-22

(1854). See also Md.-Nat’l Cap. P. & P. Comm'n v.

- D. Hagman distinguishes the "reservation" of land

from its formal"dedication"” because, “Dedication ordinarily

involves the conveyance of an interest in land by the fee owner

to the public....Reservation, on the other hand, involves no

conveyance but restricts the right of the subdivider and others to

use the land for anything but the restricted purpose." /d., Urban

Planning and Land Development Control Law § 140 at 259

(1975). From the property owner’s perspective, reservations

may be worse than dedications because the property owner

continues to pay taxes on reserved land, while enjoying none of

the property’s private benefits.

21

Chadwick, 286 Md. 1 (1979); Lomarch Corp. v. Mayor of

Englewood, 51 N.J. 108, 237 A.2d 881 (1968); Hoyert v.

Bd. of County Commissioners, 262 Md. 667, 278 A.2d 588

(1971) (attempt to depress value of property in anticipation

of subsequent condemnation declarec invalid); and Carl M.

Freeman, Inc. v. St. Rds. Commission, 252 Md. 319, 250

A.2d 250 (1969) (ordinance declared invalid because its

sole purpose was to freeze land values). The difference

between the reservation statutes denounced in Moale,

Chadwick and Lomarch, and the “buffer” zones denounced

in Spaid and Dowsey, was that the reservation statutes at

least acknowledged the obligation to pay something for

land, albeit at an unspecified future date.

The City of Monterey’s intense interest since at least

1984 in the public acquisition of Del Monte’s land is well

established in the record. R.T. 215-17 (Letter from Mayor

of Monterey to California Coastal Commission dated June

13, 1984 endorsing plans by State to purchase the property

as being "fair" to the owner). The State of California in

fact found funding for the acquisition subsequent to the

1986 permit denial, and the property was purchased in

1991 for $4.5 million, about half the value of the property

had the City not denied even the drastically scaled-down

project. R.T. 709. We may assume that there was a

legitimate public need for dune access, viewshed, and

butterfly habitat in the vicinity of Del Monte’s property at

the time the permit was denied, and that the State of

California’s subsequent acquisition of the property served

a legitimate public purpose. The question is whether the

means by which the City set about achieving it: goal bear

the necessary connection to this objective.

Considered within the context of the exactions, the

City’s categorical denial of Del Monte’s permit application

effectively restricted Del Monte’s right to use its property

for anything but the restricted purposes of dune access,

22

viewshed and butterfly park, pending subsequent pubiic

acquisition at an unspecified future date. The State of

California did in fact subsequently acquire the property, but

in so doing, compensated Del Monte only for the value of

the land subject to restriction. (JA 259-260, 264). As

previously stated, this is just a new variation on an old

theme. At least in Moale’s case, Baltimore bothered to

enact legislation purporting to justify the confiscation.

Reservation statutes have long been associated with

uncompensated takings by municipal corporations. This

perhaps explains why most courts decline to accept certain

public or quasi-public uses as establishing an economically

beneficial use of land. Such uses include parking facilities,

parks, schools, public housing and recreational facilities.

Troy Campus v. City of Troy, 349 N.W.2d, at 180-81. See

Zeigler, | Ratkopf’s The Law of Zoning & Planning §

6.07[6] at 6-48, 6-51 (1991) (discussing cases). See also

Bowles v. United States, 31 Fed. Cl. 37, 48-49 (1994);

Formanek yv. United States, 26 Cl. Ct. 332, 340-41 (1992);

Lucas, 505 U.S. at 1019 (listing federal and state statutes

permitting acquisition of private lands for public use). This

Court should affirm the court of appeals and make it clear

that the willingness of a government or non-profit agency

to purchase land for a public use is insufficient to defeat a

“takings” claim as a matter of law."

'2 In any event, as the lower court correctly stated, the test

is whether the restrictions have denied the owner all

economically viable use of the property; not whether the

property has some residual value that can be realized only by

disposing of it. Del Monte Il at 1432-33.

23

C. An Adjudicative Decision to Restrict the Use of

Certain Property Should Be Subjected to

Heightened Scrutiny under the Just

Compensation Clause.

In Dolan v. City of Tigard, this Court applied the

maxim first enunciated in Penn Central Transportation Co.

v. New York City, 438 U.S. 104 (1978), that a land use

regulation is confiscatory “if not reasonably necessary to

the effectuation of a substantial government purpose.” 512

U.S. at 388, quoting Penn Central, 438 U.S. at 127. In

the context of a developmental exaction, this Court

determined that a regulation requiring the conveyance of

property was not “reasonably necessary” to effect a

substantial public purpose unless the exaction was “roughly

proportional” to needs created by the landowner’s proposed

new use of his property. Dolan, supra, at 391. This

Court has not yet defined the degree of necessity that is

required to support land use regulations in many other

contexts. But it is clear that the “reasonably necessary"

standard continues to serve as the "floor" or level from

which to evaluate land use regulations. So the question in

this case is (1) whether the Dolan “rough proportionality”

standard applies to the case at bar, and (2) if it does not,

does the “reasonably necessary" test of Penn Central

require a greater degree of review or scrutiny than the

rational basis test under the Equal Protection Clause as

urged by the City. Amici submit the answer to both

questions is "yes."

The City and its supporting arnici urge that the “rough

proportionality” standard enunciated in Dolan should never

apply to a takings claim that is predicated on a permit

denial. The problem with this argument is that the Dolans

advanced their claim in the form of an appeal from the

denial of a variance permit. Dolan, 512 U.S. at 381.

24

Similarly, while the California Coastal Commission issued

the Nollans’ building permit with conditions to which the

Nollans objected, the Commission just as easily might have

. rejected the permit application outright because the Nollans

refused to accept the permit conditions. Clearly, a permit

denial provides just as good an occasion to test the

const! onal propriety of an exaction as a permit issuance.

The City and its supporting amici also attempt to

distinguish Nollan and Dolan from the case at bar because

the former involved physical invasions, while the case at

bar supposedly involves a mere restriction on Del Monte’s

use of its land. This objection fails because the factual

premise of this argument is erroneous. The City exacted

a beach/dune access easement from Del Monte comparable

to the easements exacted from the Nollans and Dolans.

This Court distinguished the Dolans’ case from

traditional zoning regulations because Dolan involved an

adjudicative decision’ to condition a permit application for

an individual parcel, and because it involved the actual

conveyance of property to the city in the form of a

“permanent recreational easement" that would not merely

regulate the Dolans’ right to exclude others from their

property, it would “eviscerate" it. 512 U.S. at 394.

The case at bar also involves an adjudicative decision

to condition certain land and it involves actual conveyances

and dedications which would require the public to trample

upon Del Monte’s property, thereby eviscerating Del

Monte’s right to exclude. There can be no doubt that a

taking of Del Monte’s property by the City was required as

3 Indeed, Dolan made clear that the burden of proof

"properly rests on the city" because it had made an adjudicative

decision to condition the Dolans’ building permit application.

512 U.S. at 391, n.8.

25

a condition for any development to occur on the property,

much like the scenario in Dolan. Dolan considered the

“rough proportionality” standard as part of its discussion of

what defenses would be available to government entities

facing such partial takings claims. And while much of Del

Monte’s property is being required to be dedicated, this

Court has never held that physical invasions or formal

conveyances or dedications are the only means by which

takings of property interests may occur. See, e.g., San

Diego Gas & Electric Co. , 450 U.S. 621 (1981), in which

five members of this Court recognized that a mere zoning

regulation affecting a portion of a parcel could effect a

taking; and Howard County v. JJM, Inc.. 21 Md. 256,

280-81, 482 A.2d 908 (1984)."* In stv. *he dedication

and reservations involved in this -* —onstitute habitat,

conservation, and viewshed easements; these are property

interests which are bought and sold all the time. Amici

thus find it odd that the City and its supporting amici are

actually advocating that this Court strip them of a defense

(Dolan’s “rough proportionality" standard) to such takings.

Del Monte also argued in the trial court that the City’s

exactions were unreasonable, and thus not reasonably

necessary to advance the City’s stated objectives. The

City’s denial of Del Monte’s permit application effectively

reserves one-third of the parcel as butterfly habitat, which

itself may be deemed an exaction. Howard County v. JJM

Inc., supra. In effect, the City progressively exacted the

entire parcel and now has the audacity to claim that Dolan

14

Even if the California Coastal Commission had passed

a regulation prohibiting all coastal landowners who receive a

building permit from interfering with beach access by the public

on the owner’s property, the restriction would nevertheless be

confiscatory.

26

does not apply at all because there is nothing left of the

parcel for the City to rely on in its defense to justify the

exactions!'’ Thus, while the Dolan “rough proportionality”

test may not necessarily apply to every kind of land use

regulation, the court of appeals below nevertheless had

ample reason to apply the standard here.

At the same time, the real problem with the City’s

argument is its casual assumption that the standard of

review under the Takings Clause necessarily defaults to the

minimal level of scrutiny applied under the Equal

Protection Clause of the Fourteenth Amendment whenever

the Dolan “rough proportionality” standard is found not to

apply"®. This Court's decisions allow for no such result.

Justice Brennan argued the position advanced by the City

and its supporting amici very forcefully in Nollan, citing

virtually the same due process and equal protection cases.

'S The City cannot escape the Dolan’s applicability by

simply denying all development. Thus, a proportionality test

would have applied to the Dolans’ property even if, instead of

seeking a building permit to expand its already existing hardware

store, the Dolans wanted to build a new hardware store on

vacant land, and were told that a building permit would be

conditioned on bike-path and floodplain exactions.

‘© The City assumes that the standard of review in the

case at bar is the same as the standard of review under the Due

Process Clause or the Administrative Procedures Act because the

City mistakenly assumes that the issue before this Court is the

same as the issues presented before the City Council which

denied Del Monte’s permit application. In fact, the issue in the

case at bar is not whether the City’s actions were arbitrary and

irrational, but who should pay for the otherwise reasonable

purpose of preserving Del Monte’s land for beach access,

viewshed, and butterfly habitat.

27

See Nollan, 483 U.S. at 843 (BRENNAN, J., dissenting).

This Court nevertheless held that the challenged land use

regulations were confiscatory despite the fact that they were

“rationally based.”

This Court has never held that only one standard of

review applies to all takings claims regardless of the nature

of the regulation or the private interests affected'’. In the

case at bar, the City has made an adjudicative decision to

restrict individual property in a manner that is in

derogation of important common law rights. The level of

interference is severe, even assuming that it is not

complete. Also, the City’s discretion is extremely broad to

approve, or not to approve, anywhere from 0 to 900 homes

on the subject property.

In short, there is good reason why the City’s actions

should be subject to heightened scrutiny even if Dolan’s

"rough proportionality” is found not to apply. At a

minimum the City should have the burden of explaining

why it had to deny Del Monte’s permit application

categorically, without any further guidance as to how to

make the project acceptable. While the City is not required

to adopt the least restrictive means, its refusal to accept

obvious and suitable alternatives (after numerous attempts

by Del Monte to meet the City’s concerns) to a total ban on

development create the heightened risk that Del Monte’s

17

There is thus no particular reason to believe that a

regulation restricting the right to build on one’s own land,

Nollan, supra; Dolan, supra; Lucas, supra, or the right to dwell

with whomever one chooses, Moore v. City of East Cleveland,

431 U.S. 494, 513-521 (1977) (STevENs, J., concurring in

judgment) needs to be subjected to the same level of judicial

review as regulations governing rent control, Yee v. City of

Escondido, supra, or a retirement health benefits plan. Eastern

Enterprises v. Apfel, 118 S. Ct. 2131 (1998).

28

land is being pressed into some form of public service

under the guise of regulating the use of land.

D. The City’s Own Testimony Shows That it Is

Liable for Taking Del Monte’s Property.

Ordinarily, a jury’s verdict is judged in relation to the

instructions to the jury. But “a reasonable jury is

presumed to know and understand the law, the facts of the

case, and the realities of the market.” Brooke Group Lid.

v. Brown & Williamson Tobacco Corp. , 509 U.S. 209, 243

(1993). The jury had plenty of evidence to support a

finding that Del Monte’s property was effectively being

denied any economically viable use.

Del Monte also introduced evidence to show that the

City’s categorical permit denial was not “reasonably

related” to any of the City’s stated objectives. Del Monte

II, at 1429-30. The City produced its own experts who

testified that the City’s categorical denial of Del Monte’s

permit application was necessary. Whatever else may be

said about the City’s denial of Del Monte’s permit

application, it is clear that it was categorical, without any

further direction as to how the project might be made

acceptable to the City. The City categorically rejected a

proposal to build 190 homes.

Yet after this action was initiated, the State of

California acquired the subject property. In calculating the

purchase price, “the State relied upon an appraisal that

assumed that the highest and best use of the property was

for residential development with a density of up to 150

units.” Pet. Br. at 10. At trial, the City shamelessly

introduced this appraisal as proof of the continuing

economic viability of Del Monte’s property subject to

restriction. Ibid. By introducing the appraisal, the City

effectively concedes that 150 homes could have been built

29

consistent with the City’s legitimate objectives. Why then

did the City need to deny Del Monte’s permit application

categorically? Because 150 homes have to go someplace,

a reasonable jury might have inferred that one or more of

the restrictions placed on the subject property by the City

were not reasonably necessary to achieve the City’s stated

objectives. In short, the City is impeaching their own

experts by suggesting the 150 units could have been built

on the property despite all the alleged environmental

concerns. Given this internal conflict in the City’s own

statement of the facts, the jury reasonably might have

inferred that the City’s real purpose was other than the

stated ones.

This Court has often repeated the maxim that a land

use regulation may be confiscatory “if not reasonably

necessary to the effectuation of a substantial government

purpose.” Dolan v. City of Tigard, 512 U.S. at 388. But

this Court has never explained the reasons for this rule.

Perhaps it is simply the fact that land use regulations that

do not substantially advance the stated public objectives so

often are found to be directed towards some unstated public

goal such as acquiring the land without having to pay for

it. See Nollan, 483 U.S. at 837 (“Similarly here, the lack

of nexus between the condition and the original purpose of

the building restriction converts that purpose to something

other than what it was. The purpose then becomes, quite

simply, the obtaining of an easement to serve some valid

governmental purpose, but without payment of

30

compensation.”).'* In any event, the case at bar confirms

the wisdom of this rule.

Ordinarily, a party to litigation is assumed to present

the facts in the light most favorable to its case. Where, as

here, a party is liable according to its own statement of the

facts, a reviewing court need look no further. Nor should

a reasonable jury have to look further.

CONCLUSION

For the foregoing reasons, amici curiae urge this Court

to affirm the judgment of the court of appeals.

Respectfully submitted.

Daniel J. Popeo

Paul D. Kamenar

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

Date: July 31, 1998

'§ The jury was instructed that the City’s “underlying

motives and reasons are not to be inquired into.” Del Monte II,

at 1429. This must refer to the personal motivations of the City

Council members. The jury was not obligated to assume that the

public purpose of the permit denial was limited to the purposes

stated by the City.