# 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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0159%3A22. Public record. Not legal advice.