# Amicus Curiae Brief — Palazzolo v. Rhode Island

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0384%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 606

## Text

SUPREME COURT OF THE UNITED S

ANTHONY PALAZZOLO,

Petitioner,

RHODE ISLAND ex rel. PAUL J. TAVARES,
General Treasurer, and
COASTAL RESOURCES MANAGEMENT COUNCIL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF RHODE ISLAND

BRIEF OF THE
NATIONAL ASSOCIATION OF HOME BUILDERS
AS AMICUS CURIAE
IN SUPPORT OF THE PETITIONER

DUANE J. DESIDERIO
CHRISTOPHER G. SENIOR
(Counsel of Record)
THE NATIONAL ASSOCIATION
OF HOME BUILDERS
1201 - 15th Street, N.W.
Washington, D.C. 20005
(202) 822-0200

Attorneys for Amicus Curae.

Weshington,0.C. © THIEL PRESS + (202) 328.3286

IRD P

TABLE OF CONTENTS

Page(s)
INTERESTS OF THE AMICUS CURIAE .................... l
SUMMARY OF ARGUMENT ....0000....ccccecccceeeeteeeeeeees 2
SITTEIIITET scssnscsensessnesticseonsnennennennesensssncenecenenvensnssesesinen 5

I THE MERE EXISTENCE OF A
REGULATION, ABSENT FURTHER
REVIEW, SHOULD NOT END’ THE
REQUIRED CONSTITUTIONAL ANALYSIS
OF A TAKINGS CLAIM | 0.0 ccceeeees 5

A. The Rhode Island Supreme Courts’ Cursory
Analysis Effectively Writes Out Of Existence
The Concept Of Regulatory Takings .................... 6

B. Investment-Backed Expectations Are Best
Utilized In Determining The Amount Of Just
BITTE . viinassdrsnntnnetonessintenntnnpeaesinenenvsconsmesenence 10

Il. ADDITIONAL RE-APPLICATIONS,
FOLLOWING SOME UNKNOWN NUMBER OF
REGULATORY DENIALS, SHOULD NOT BE
REQUIRED TO RIPEN A TAKINGS CLAIM .... 14

A. MacDonald Did Not Establish A Categorical
Re-Application Requirement ......................... 17

B. The Re-Application Standard Defies Consistent
Application By The Lower Courts ................ 18

ii iil
TABLE OF CONTENTS (Cont.) TABLE OF AUTHORITIES
Page(s) | Page(s)
CASES
C. The Court Should Adopt The “One Meaningful
Application” Standard, Modified By A Futility Abbot Labs. v. Gardner, 387 U.S. 136 (1967)...24, 25, 26
EL BOSIOISED .......0000csscesseensesssnessnnnnnnlensneinnnnnnnnnnnnnnnn 22
! Agins v. City of Tiburon, 447 U.S. 255 (1980) ........ 1,2,3
LTBI, «...2scccccssessescnsecsseecensenseenennennnnnnnnannnnnnnnn 29
~ Carson Harbor Village Ltd.v. City of Carson,
I I, UIE sccsccssesesssensssssseseccvsscccssessnesee y)
City of Chicago v. International College of
Surgeons, 522 U.S. 156 (1997) .......cccccsecseceseeceseerseeeeeees 15
City of Monterey v. Del Monte Dunes at Monterey,
En a: |
City of Virginia Beach v. Bell, 498 S.&.2d 414 (Va.),
cert. denied, 525 U.S. 826 (1998) ..........ccccccccccscccceceseeeees 6
Coniston Corp. v. Village of Hoffman Estates,
I IN, III cs ccccscecessssonscosscssovesensensseceseece 2
Dodd v. Hood River County, 136 F.3d 1219 (9" Cir.),
cert. denied, $25 U.S. 923 (19GB) 2.2.2... cccccccecceeeeeees 15
Dolan vy. City of Tigard, 512 U.S. 374 (1994) oo... 14

Eastern Minerals Int'l, Inc. v. United States,
Ss ssssemmannnnnonsnnes 26

Florida Rock Indus. v. United States,
I cesnsnneon 10

iV

TABLE OF AUTHORITIES (Cont.)

Page(s)
Forseth v. Village of Sussex, 20 F.Supp. 2d 167
(E.D. Wisc. 1998), aff'd in part, rev d in part,
POD G.30 SED GF Cae BD eeccerrerceccescetcnsenientencemnensi 14,19
Franklin v. Massachusetts, 505 U.S. 788 (1992) .......... 25

Front Royal and Warren County Indus. Park Corp. v.
Town of Front Royal, 135 F.3d 275 (4" Cir. 1998) ......22

Gilbert v. City of Cambridge, 932 F.2d 51
4g A. Rte 27

Good v. United States, 39 Fed. Cl. 81 (1997),
189 F.3d 1355 (Fed. Cir. 1999), cert. denied,
SED A, COP GED cceccnsssenninemennenmenannned passim

Grant v. South Carolina Coastal Council,
a ee is UD snisiisinatiiisintaiatiiitiaittinicnnreneel 6

Healing v. California Coastal Comm'n,
22 Cal. App. 4" 1158, Cal Rprtr. 758
a CRD, TD ccnsienicermemennniiemmenieell 27, 28

Hodel v. Virginia Surface Mining and
Reclamation Ass'n, 452 U.S. 264 (1981) ......cccccccceeeeeees 23

Hoehne v. County of San Benito, 870 F.2d 529
PP CRD iitisscesidceeatseietannntamnninae 2

Hunziker v. lowa, 519 N.W.2d 367 (lowa 1994),
cert. denied, 514 U.S. 1003 (1995) .......ccccccccccccceeeeeeeeeeees 6

TABLE OF AUTHORITIES (Cont.)

Idaho v. Coeur d'Alene Tribe of Idaho,
RE Df , 15

Kaiser Dev. Co. v. City and County of Honolulu,
649 F.Supp. 926 (D. Hawaii 1986), aff'd, 898 F.2d 112
(9" Cir. 1990), cert. denied, 499 U.S. 947 (1991) ........ 21

Kawaoka v. City of Arroyo Grande, \7 F.3d 1227
(9" Cir), cert. denied, 513 U.S. 870 (1994) .......cc00000+. 26

Kim v. City of New York, 681 N.E.2d 312 (N.Y.),
cert. denied, 522 U.S. 803 (1997) .0.......:ccccccccccceseeseeereeees 6

Kinzli v. City of Santa Cruz, 818 F.2d 1449,
amended, 830 F.2d 968 (9" Cir. 1987),
cert. denied, 484 U.S. 1043 (1988) ....cccccccccccccseceseseseees 26

Loretto v. Teleprompter Manhattan CATV Corp.,
| ee 12

Lucas v. South Carolina Coastal Council,
FOS UB. BGG CIGTE) ccccccccccsscssrsscsessccscesssssssssscseecs passim

MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340 (1986) ......0cccccrecrscccrrccsecesseceessesssoses passim

McQueen v. South Carolina,
530 S.E.2d 628 (S.C. 2000)...........cccccccsecsesseseeeeessneenennsnnens 6

vi

TABLE OF AUTHORITIES (Cont.)

Page(s)
Nollan v. California Coastal Comm'n,
RE eee 1,9
Palazzolo v. Rhode Island,
Se passim
Penn Central Transp. Co. v. City of New York,
ee 12, 28
Pennsylvania Coal Co. v. Mahon,
a 9

River Park, Inc. v. City of Highland Park, 23 F.3d 164
Fs Cee ieisiseinnhneiehinie ini 2

San Diego Gas & Electric Co. v. City of San Diego,
EE | eee l

Schulze v. Milne, 849 F Supp. 708 (N.D. Cal. 1994),
aff'd in part, rev'd in part, 98 F.3d 1346
PG CI ccctccstensinniinenenentesnsesnesincianvinacinsensnees 20

Shelter Creek Development Corp. v. Oxnard,
ge 28

Southview Assocs. v. Bongariz, 980 F.2d 84
(2d Cir. 1992), cert. denied, 507 U.S. 987 (1993) ........ 20

Suitum v. Tahoe Regional Planning Agency,
SEE: TEPID cucctncicvineiensemmeninanieninantiniiasnitl passim

Vii
TABLE OF AUTHORITIES (Cont.)

Page(s)

2BD Ltd. Partnership v. County Comm'rs for Queen
Anne 's County, 896 F. Supp. 518 (D.Md. 1995),
aff'd, 162 F.3d 1158 (4™ Cir. 1998) ....cccccccccsceseseseeseeees 20

Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency, 216 F.3d 764

I BI saicictiterssceiibibcnininiiteiinieaetiniaeeesbbsitioneniias 12

Unity Ventures v. County of Lake,

oe ag 26

Vatalaro v. Department of Envtl. Conservation,

601 So.2d 1223 (Fla. App. 1992) .............ssccscscceeseeeees 8.9

Wilkinson v. Pitkin County Bd. of Comm'rs,

EF Ey SR Oe CD ercecesttcrcictinstenieciiieai 15

Williamson County Rezional Planning Comm'n

v. Hamilton Bank, 473 U.S. 172 (1985).........cccc000+ passim
OTHER SOURCES

Black’s Law Dictionary I a 24

Brief of Amicus Curiae American Planning Association
in Support of Respondent, Suitum v. Tahoe Regional
Planning Agency, No. 96-243 .........cccccccceceeeeeeeeeee 21, 22, 27

Michael Berger, 7he Ripeness Mess In Federal Courts,

Or How The Supreme Court Converted Federal Judges
Into Fruit Peddlers, INST. ON PLANNING, ZONING

AND EMINENT DOMAIN 7-1 (1991) ...........ccccceccceeececeeeeeees 14

Vill
TABLE OF AUTHORITIES (Cont.)

Page(s)

Michael Berger, Supreme Bait & Switch: The Ripeness
Ruse In Regulatory Takings, to be printed in
3 WASH U.J.L. & POLICY 99 (2000) 0.0... cece eeeeeesesteeeeees 16

Brian Blaesser, Closing The Federal Courthouse Door On
Property Owners, 2 HOFSTRA PRopP. L.J. 73 (1988) .......... 3

John Delaney and Duane Desiderio, Who Will Clean Up
the Ripeness Mess? A Call For Reform So Takings
Plaintiffs Can Enter The Federal Courthouse,

BR BE Reena oneee 2, 16

Timothy Kassouni, The Ripeness Doctrine And The
Judicial Relegation Of Constitutionally Protected
Property Rights, 29 CAL. W. L. REV. 1 (1992) ...... eee 3

Testimony of Professor Daniel R. Mandelker on H.R.
1534, reprinted at 31 THe UrB. LAW. 236
GIR TOS cccecsnccssccsncsssscenellicntevemnemeneeennn 18, 19, 27

Lynda Oswald, Cornering the Quark: Investment Backed-
Expectations and Economically Viable Uses in Takings
Analysis, 70 WASH. L. REV. 91 (1995) occ ceeeeeeeees 7

Gregory Overstreet, The Ripeness Doctrine Of The
Takings Clause: A Survey Of Decisions Showing Just How
Far Federal Courts Will Go To Avoid Adjudicating

Land Use Cases, 10 J. LAND USE & ENVTL. L. 91

PUTED | sassscndsnsesecnenniemsnnabinintieusmnmniimanisstiananiteeseniiin 3, 24

Paul Weiland, Unfunded Environmental Mandates:
Causes, Burdens, and Benefits 22 HARV. ENVTL. L. REV.
PCO OEED cccerisatscsrensicnscsesennenmmsenmateninntiemsnaninenendl 6

Gren

INTERESTS OF THE AMICUS CURIAE

The National Association of Home Builders (“NAHB”)
has received the parties’ written consent to file this brief as
amicus curiae in support of the petitioner. Letters of
consent have been filed with the Clerk of the Court. !

NAHB represents over 200,000 builder and associate
members throughout the United States. Its members
include people and firms that construct and supply single
family homes as well as apartment, condominium,
commercial and industrial builders, land developers, and
remodelers. It is the voice of the American shelter
industry. NAHB, therefore, is concerned with any judicial
decision that calls into question the remedy available to its
members under the Fifth Amendment when land use
regulators take private property for public use without the
payment of just compensation.

NAHB has been before the Court as an amicus curiae
or as “of counsel” to the landowner in a number of cases
involving the rights of landowners to use their property
and the remedy to be applied when those rights are
interfered with. These include Agins v. City of Tiburon,
447 U.S. 255 (1980), San Diego Gas & Elec. Co. v. City of
San Diego, 450 U.S. 621 (1981), Williamson County
Regional Planning Comm'n v. Hamilton Bank, 473 U.S.
172 (1985), MacDonald, Sommer & Frates v. Yolo
County, 477 U.S. 340 (1986), Nollan v. California Coastal
Comm'n, 483 U.S. 825 (1987)2, Lucas v. South Carolina

'No person or entity other than NAHB made any monetary
contribution to the preparation or submission of this brief.

2The Court’s opinion cited NAHB’s brief. 483 U.S. at 840.

2

Coastal Council, 505 U.S. 1003 (1992), Dolan v. City of
Tigard, 512 U.S. 374 (1994), Suitum v. Tahoe Regional
Planning Agency, 520 U.S. 725 (1997), and City of
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687 (1999),

SUMMARY OF ARGUMENT

The lower couris greet constitutional property rights
cases with hostility.> When takings claims are presented to
federal judges, their knee-jerk reaction is to cite this
Court's ripeness opinions as an easy avenue for dismissal.
Between 1990-98, for example, 83% of takings cases with
a reported opinion from a U.S. district court were
dismissed without ever reaching the merits. During that
same time period, property owners who could afford to
continue litigation before one of the U.S. Circuit Courts of
Appeal saw 64% of their takings claims sacrificed on the
ripeness altar. See John Delaney and Duane Desiderio,
Who Will Clean Up The Ripeness Mess? A Call For

3See, e.g., River Park, Inc. v. City of Highland Park, 23 F.3d
164, 165 (7" Cir. 1994) (“Federal courts are not boards of
zoning appeals. This message, oft-repeated, has not penetrated
the consciousness of property owners who believe that federal
judges are more hospitable to their claims than are state judges.
Why they should believe this we haven't a clue; none has ever
prevailed in this circuit....”) (emphasis supplied); Hoehne v.
County of San Benito, 870 F.2d 529, 532 (9" Cir. 1989) (court
perceives its role as “the Grand Mufti of local zoning boards”
and dismisses takings case); Coniston Corp. v. Village of
Hoffman Estates, 844 F.2d 461, 467 (7" Cir. 1988) (takings
claim is merely a “garden-variety zoning dispute dressed up in
the trappings of constitutional law”).

a

3

Reform So Takings Plaintiffs Can Enter The Federal
Courthouse, 31 THE URB. LAW. 195, 203-204 (1999).4

Because federal courts have abdicated their
responsibility to decide constitutional property rights
cases, the takings clause is unfortunately unique. Except
for the rare occasion when this Court agrees to hear a
takings case, no other provision in the Bill of Rights
depends almost entirely on the state court system to flesh-
Out its substantive meaning and requirements.

But state courts, following the federal courts’ example,
routinely sidestep the merits of takings claims as well.
Here, for example, the Supreme Court of Rhode Island
declined a thorough analysis of Mr. Palazzolo’s request for
just compensation simply because the wetland regulations
at issue pre-dated his acquisition of the subject property.
The Rhode Island courts believed that Mr. Palazzolo could
not reasonably expect to develop his property because he
must have known it would be regulated. But in today’s
regulatory climate, with hundreds of thousands of federal,
state and local statutes and regulations purporting to
protect the environment, who doesn’t acquire property
with the expectation that it will be regulated? Can anyone,
from here on in, ever assert a viable regulatory takings

4The federal courts’ avoidance of takings claims is a common
subject of analysis. See also Gregory Overstreet, The Ripeness
Doctrine of the Takings Clause: A Survey of Decisions Showing
Just How Far Federal Courts Will Go to avoid Adjudicating
Land Use Cases, 10 J. LAND Use & ENVTL. L. 91 (1994);
Timothy Kassouni, The Ripeness Doctrine and the Judicial
Relegation of Constitutionally Protected Property Rights, 29
CAL. W. L. Rev. | (1992); Brian Blaesser, Closing the Federal
Courthouse Door on Property Owners, 2 HOFSTRA PROP. L.J.
73 (1988).

4

claim? Under the reasoning of the Rhode Island courts, the

answer is no.

Additionally, the Rhode Island courts determined that
Mr. Palazzolo’s takings claim is not ripe because he did
not submit enough applications requesting permission to
use his land. Mr. Palazzolo (and his corporate predecessor-
in-interest) submitted four land use applications.
Regulators denied them all, but the Rhode Island courts
wanted more before it would deem the case ripe. How
many more is anyone’s guess.

Too frequently, lower courts rely on the date of
acquisition and finality questions presented here as a quick
and simple dodge out of the substantive and fact-intensive
issues surrounding takings claims. The approach taken by
the Rhode Island courts here—and innumerable other
federal and state courts—relegates the takings clause “to
the status of a poor relation.” Dolan v. City of Tigard, 512
U.S. 374, 392 (1994). This case begs the Court to restore
the takings clause to its rightful, equal place among the
other protections in the Bill of Rights. To achieve this
restoration, NAHB respectfully urges the Court to rule as
follows:

e The date of statutory or regulatory enactment can not
preclude the courts from deciding whether a land use
agency has committed a taking in the first instance.
The date of regulatory enactment may be a factor in
determining the amount of just compensation due to a
property owner, but it should not negate the very
existence of a takings claim.

e When a citizen applies to use his property, his takings
claim should ripen after (1) regulators have denied one
“meaningful” application, and (2) he seeks a single
waiver or variance that allows relief from the denial—

i

5

unless (3) following such procedures would be futile in
terms of receiving the requested relief. Denial of a
single land use application does not mean that a taking
has in fact occurred. Rather, denial of one application
should simply mean that a takings claim is ripe for a
court to decide on the merits.

R NT

I. THE MERE EXISTENCE OF A REGULATION,
ABSENT FURTHER REVIEW, SHOULD NOT
END THE REQUIRED CONSTITUTIONAL
ANALYSIS OF A TAKINGS CLAIM.

In concluding that Mr. Palazzolo suffered no regulatory
taking, the court below found that because “there were
already regulations in place limiting [the Petitioner's]
ability to . . . develop[ ]” his property, he could have no
investment-backed expectations and therefore suffered no
taking. Palazzolo v. Rhode Island, 746 A.2d 707, 717
(R.I. 2000). The court below quoted with favor the
Federal Circuit’s opinion in Good v. United States, with
particular emphasis on the finding that, “In view of the
regulatory climate that existed when [the landowner]
acquired the subject property, [the landowner] could not
have had a reasonable expectation that he would obtain
approval . . . to develop the land.” /d. (quoting Good, 189
F.3d 1355, 1361-62 (Fed. Cir. 1999)).

Once the regulations in question were adopted, the
court below declared, the State of Rhode Island had
removed from the title to the property “the right to fill
wetlands,” thus leaving Mr. Palazzolo with no further right
to develop his land. Palazzolo, 746 A.2d at 710. The mere
enactment of the regulations were enough to extinguish

6

property rights in the parcel, precluding any possible
recovery for a taking.

A. The Rhode Island Supreme Court’s Cursory
Analysis Effectively Writes Out Of Existence
The Concept Of Regulatory Takings.

The seemingly simple proposition laid out by the
Rhode Island Supreme Court - if you acquire property
under regulatory burden your investment-backed
expectations cease to exist - has devastating results. For
what parcel of land in the United States today does not fall
under the rubric of some regulatory scheme? “Between
1968 and 1978 Congress passed more regulatory statutes
than it had in the nation's previous 179 years.”

As previously noted, courts are extremely reluctant to
resolve the merits of takings claims, and have effectively
used the ripeness hurdle to keep cases from their
courtrooms. When that evasion won’t work, what better
way to get the plaintiff out of the courthouse than by
telling her, “sorry, your property is regulated, and
therefore you have no takings claim.”

Courts have already shown such plaintiffs out the
courthouse door.6 Many have followed the “logic” in

5Paul Weiland, Unfunded Environmental Mandates: Causes,
Burdens, and Benefits, 22 HARV. ENV1L. L. REV. 283, 287
(1998).

6See McQueen v. South Carolina, 530 S.E.2d 628 (S.C. 2000);
City of Virginia Beach v. Bell, 498 S.E.2d 414, 417 (Va.), cert.
denied, 525 U.S. 826 (1998); Kim v. City of New York, 681
N.E.2d 312, 314-16 (N.Y.), cert. denied, 522 U.S. 803 (1997);
Grant v. South Carolina Coastal Council, 461 S.E.2d 388, 391

7

Good, where the court concluded that, “In light of the
growing consciousness of and sensitivity toward
environmental issues, [the landowner] must also have been
aware that standards could change to his detriment.”
Good, 189 F.3d at 1363. Some might say this ‘test’
requires citizens to become regulatory psychics, peering
into their crystal balls to divine how their property might
be regulated so they might take whatever steps were
necessary to protect their distinct, investment-backed
expectations. Or, as the Supreme Court of Rhode Island
appears to have done to Mr. Palazzolo’s land, this ‘test’
may simply add a new clause to every deed in America
reading, “Property subject to uncompensated regulatory
seizure at any time — purchase at your own risk.”
One legal commentator has described this regulatory
nullification of property rights as follows:
If we accept the premise that enactment of one
piece of legislation puts a property owner “on
notice” that more restrictive regulations might be
enacted in the future as well, we find ourselves
faced with a reductio ad absurdum — the
exsitence of the first regulation will defeat any
claims the owner might have regarding the
sanctity of the property interest in the future. By
merely enacting one regulation (even a relatively
non-intrusive one that is clearly a legitimate
exercise of the police power), the government
opens a path for eventual, incremental taking of
the entire property interest without payment of
compensation.

(S.C. 1995); Hunziker v. State, 519 N.W.2d 367, 371 (lowa
1994), cert. denied, 514 U.S. 1003 (1995).

8

Lynda Oswald, Cornering the Quark: Investment-Backed
Expectations and Economically Viable Uses in Takings
Analysis, 70 WASH. L. REV. 91, 114 (1995).

Here, the Supreme Court of Rhode Island even added a
novel twist. In noting that this Court recognized the
limitations “that background principles of the State’s law
of property and nuisance already place upon land
ownership,” Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1029 (1992), the Court below declared that
governmental regulations have exactly the same effect.
“[W]here the regulation predated the landowner’s
acquisition of the property, ‘the bundle of rights which [the
landowner] acquired upon obtaining title to the property
did not include the right to develop the lots without
restrictions.” Palazzolo, 746 A.2d at 716 (citation
omitted).

The end result is that any owner acquiring property
already regulated has no possibility of a takings claim.
“Regardless of whether the government physically takes
property in the form of an easement or promulgates
regulations restricting the property's use, all subsequent
owners take the land subject to the pre-existing limitations
and without the compensation owed to the original
owner.” /d. at 716-717.

By equating physical and regulatory takings, the
Palazzolo court failed to note one substantial difference:
an owner acquiring property knows the specific parameters
of a physical taking and can easily factor its impact into
his investment-backed expectations. An owner acquiring
property under a regulatory scheme will often not know
the parameters of these regulations until they are actually
applied to his property. While there is surely some
element of risk involved in any land purchase, the degree

9

of uncertainty in any regulatory scheme is vastly more
difficult to ascertain than one involving a physical taking.

The vast majority of regulatory takings claims arise in
the context of as-applied challenges, because the full
impact of a regulation can usually be quantified only when
it is applied to a particular parcel. “Even after [the agency]
has issued a jurisdictional declaratory statement . . . it
remains to be determined whether the permit will be
granted ... [for] no taking occur[s] until [the agency]
denifes the applicant’s] permit application.” Vatalaro v.
Department of Envtl. Conservation, 601 So.2d 1223, 1229
(Fla. App. 1992). Indeed the Ninth Circuit has recognized
that an owner acquiring property after the adoption of a
regulatory scheme may have an as-applied challenge
available to address any injury suffered. See Carson
Harbor Village Ltd. v. City of Carson, 37 F.3d 468 (9" Cir.
1994).

By treating the ability to develop land as a privilege
under the exclusive domain of the state, the Supreme Court
of Rhode Island appears to have forgotten the words of this
Court in Nollan v. California Coastal Commission, 483
U.S. 825, 833 n.2 (1987): “[T]he right to build on one’s
property — even though its exercise can be subjected to
legitimate permitting requirements — cannot remotely be
described as a ‘governmental benefit.””

If the holding o: the court below stands, there will be
no constitutional relief for property owners stripped of
their rights by application of a regulation, no matter how
severe the consequences. The Fifth Amendment will apply
almost exclusively to physical appropriation of property.
Justice Holmes oft-quoted statement, "The general rule at
least is that while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a
taking" Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,

10

415 (1922), will take its place in present day constitutional
analysis as simply another great dissent.

B. Investment-Backed Expectations Are Best
Utilized In Determining The A-sount Of Just
Compensation.

As this case and others indicate, courts can tie property
owners in knots over the degree to which distinct,
investment-backed expectations must be negatively
impacted by a regulation in order for a taking to be found
at all, much less in order to prove some level of
compensation. As Judge Smith of the Federal Court of
Claims has described, this debate can often reach absurd
heights:
The notion that the government can take two-
thirds of your property and not compensate you
but must compensate you if it takes 100% has a
ring of irrationality, if not unfairness, about it. If
the law said that those injured by tortious conduct
could only have their estates compensated if they
were killed, but not themselves if they could still
breathe, no matter how seriously injured, we
would certainly think it odd, if not barbaric. Yet
in takings trials, we have the government trying to
prove that the patient has a few breaths left, while
the plaintiffs seek to prove, often at great
expense, that the patient is dead. This all-or-
nothing approach seems to ignore the point of the
Takings Clause.

Florida Rock Indus. v. United States, 45 Fed. Cl. 21, 23

— 24 (1999).

This almost surreal legal battle underscores why
takings jurisprudence would be better served if distinct,

ll

investment-backed expectations played two roles rather
than one: as a simple threshold requirement, where proof
of deprivation of economically viable use of property
would be enough to show a taking; then as a central
component of the debate over compensation, where each
side would be free to battle over how much — if anything —
should actualiy be awarded.

Such a two-step analysis makes use of the investment
backed expectations concept where it works best — as a
tool to assess the amount of just compensation.

Rather than forcing plaintiffs to show the ‘death’ of all
investment-backed expectations to prove governmental
liability for a takings claim, a plaintiff should be required
to show only the existence of distinct, investment-backed
expectations and evidence indicating the degree to which
they have been frustrated. The government, at this
threshold stage, could present evidence challenging the
degree of impact, or the validity of the expectations in the
first place. |

However, instead of battling over percentages of loss
and the full impact of the regulation upon the property,
here a court would need only ascertain that 1) distinct
investment-backed expectations exist, and that 2) they
have been frustrated because the property owner has been
denied the ability to put his land to economically viable
uses.
Should the takings claim also meet the remaining Penn
Central tests and any other applicable hurdles, only then
would the court turn its attention to the actual,
compensable amount that is due and owing to the property
owner.

Such an analysis would greatly simplify the initial
review of a regulatory takings claim. Rather than fight
over what is essentially the specific degree of loss up front,

12

the parties would only reach such a level of detail when all
other factors have been addressed.

Of course, this Court would need to set some
guidelines as to what ‘quantifiable degree’ of loss triggers
further analysis.

In Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982), this Court found that physical
appropriation of a tiny fraction of a building for
installation of cable television equipment was a taking.
While such a specific, stringent standard need not be
adopted here, this Court must suggest some reasonable
parameters.

In Penn Central Transportation Co. v. City of New
York, 438 U.S. 104 (1978), this Court found that no taking
had occurred, in part, because the plaintiff's “primary
expectation concerning the use of the parcel” was not
frustrated. /d. at 136. Conversely, where a plaintiff's
“primary expectations” for his property are indeed
frustrated, it is reasonable to expect that his investment-
backed expectations have also been frustrated. In the
present case, Mr. Palazzolo’s inability to develop his
property for residential use — his primary expectation — has
been frustrated. Utilizing the proposed test, this evidence
should be enough to show sufficient impact on investment-
backed expectations to pass the initial threshold test for a
regulatory takings claim. Detailed analysis of actual loss
of compensable value would take place only after a court
found all other applicable takings tests fully satisfied.’

7 The difference between deprivation of use leading to a
taking, and computation of loss of value for purposes of
calculating compensation is one of the issues which has
bedeviled other courts, which consistently confuse the two.
See e.g, Tahoe-Sierra Preservation Council, Inc. v. Tahoe

> bs

13

Frustration of primary expectation of use is but one
possible factor in a threshold review of investment-backed
expectations, but certainly a reasonable one well-grounded
in existing precedent. With this Court’s guidance, other
similar threshold tests focusing on deprivation of use could
be established which would further assist courts
nationwide in more effectively analyzing investment-
backed expectations in the manner proposed here.

Meeting this threshold would not, of course, guarantee
recovery. Once a court finds a taking, the parties would
engage in a substantially more detailed presentation of
evidence indicating the specific degree of loss, taking into
account actual valuations, market realities, and the degree
of risk involved. Even when a fully-compensable physical
taking was found in Loretto, the actual loss per building
was largely insignificant due to the tiny amount of
property involved. Such an outcome is even more likely in
the considerably more speculative and uncertain world of
land development. But whatever the actual award, the
court would focus on investment-backed expectations as a

Regional Planning Agency, 216 F.3d 764, 780-81 (9" Cir.
2000)(“The central confusion centers on the relationship
between the ‘use’ of property and its ‘value.’ Clearly, the
economic value of property provides strong evidence of the
availability of "economically beneficial or productive uses"
of that property. . . Many cases treat the “use” and "value"
interchangeably, or speak only of the effect of a regulation
on the property's value.”) Cf. Tahoe Regional Planning
Agency, 520 U.S. 725, 749 (“[T]he relevant issue is the
extent to which use or development of the land has been
restricted.” (Scalia, J., concurring)

14

central issue only after a claim has reached the
compensation stage of review.

By clarifying the role of investment-backed
expectations during the first stage of a takings claim, this
Court will simplify the process of review of a regulatory
takings claim and remove the more detailed analysis of
loss to the compensation stage where it more properly

belongs.

Il. ADDITIONAL RE-APPLICATIONS, FOLLOW-
ING SOME UNKNOWN NUMBER OF
REGULATORY DENIALS, SHOULD NOT BE
REQUIRED TO RIPEN A TAKINGS CLAIM.

Suitum v. Tahoe Regional Planning Agency, 520 U.S.
725 (1997), was the last time the Court considered the
“prudential ripeness principles”® for a takings claim. The
case at bar presents a question unanswered by Suitum:
When a landowner’s initial application to use property is
denied, do the prudential ripeness elements require the
submission of additional applications—and an unknown
number of denials—before a takings claim becomes fit for
judicial review? See Id. at 738, n. 12.

The “ripeness mess” traces its genesis to Williamson
County Regional Planning Comm'n v. Hamilton Bank, 473

8520 U.S. at 733. The Seventh Circuit understands Suitum as
“distinguishing Williamson's prudential ripeness
requirements from ripeness requirements drawn from Article
II] limitations on judicial power.” Forseth v. Village of
Sussex, 199 F.3d 363, 368 n. 7 (7 Cir. 2000). See also
Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1012-1013 (1992) (takings ripeness requirements are
“prudential” in nature).

15

U.S. 172 (1985). See Michael M. Berger, The Ripeness
Mess in Federal Courts, Or How The Supreme Court
Converted Federal Judges Into Fruit Peddlers, INST. ON
PLANNING, ZONING AND EMINENT DOMAIN 7-1 (1991).
Williamson County established a two-part ripeness test for
takings claims. First, regulators must deliver a final
decision “regarding how [a landowner] will be allowed to
develop its property that represents a _ definitive
position...inflict{ing] an actual, concrete injury on the
property owner.” 473 U.S. at 191, 192. Second, a
property owner must exhaust available state remedies that
ae adequate compensation for a taking. /d. at

9If this Court did not grant certiorari, Mr. Palazzolo would
likely be forever precluded from having a federal court
review the merits of his takings claim. While the Court “has
frequently acknowledged the importance of having federal
courts open to enforce and determine federal rights,” Idaho
v. Coeur d'Alene Tribe of Idaho, 52\ U.S. 261, 293 (1997)
(O’Connor, J., concurring), the doors of the federal
courthouse are slammed shut on nearly all takings claimants.
This is because lower courts construe Williamson County
prong 2—the state compensation prong—as requiring
property owners to litigate their takings claims in state court
first under a state law inverse condemnation theory. Once
state court litigation is completed, federal courts avoid
deciding constitutional property rights claims under the
preclusive doctrines of res judicata or collateral estoppel.
See, e.g., Dodd v. Hood River County, 136 F.3d 1219, 1227
(9" Cir), cert. denied, 525 U.S. 923 (1998) (following state
court litigation on inverse condemnation under Oregon law,
“it was fair and efficient for the district court to decide the
Dodds are precluded from relitigating” their takings claim in
federal court); Wilkinson v. Pitkin County Bd. of Comm'rs,

16

Mr. Palazzolo’s situation implicates Williamson
County prong 1—the final decision prong. He (or his
corporate predecessor-in-interest) submitted four applica-
tions between 1962-1985 to fill wetlands on his property.
Every time, state environmental regulators denied the
applications. Every time, the regulators would have
permitted the construction of only one home on the
parcel’s upland portion. See Palazzolo, 746 A.2d at 710-
711. Despite the four permit denials, the Supreme Court of

142 F.3d 1319, 1325 n.4 (10" Cir. 1998) (Williamson County
prong 2 “may, in actuality, almost always result in
preclusion of federal claims....It is difficult to reconcile the
ripeness requirement of Williamson with the laws of [issue
and claim preclusion]).” The system is further stacked
against takings claimants because municipai defendants can
tactically remove Fifth Amendment cases to federal court
when it suits their purposes. See City of Chicago v.
International College of Surgeons, 522 U.S. 156 (1997).
Illogically, however, Williamson prong 2 is interpreted as
requiring plaintiffs to always initiate suit in state court. In
any event, “the synergy between the preclusion doctrines and
current ripeness rules is that property owners are forced to
litigate their constitutional takings claims in state court,
without ever receiving a federal adjudication on the merits.”
Delaney and Desiderio, supra at 2-3, 31 THe UrB. LAw. at
200-201 (emphasis in original). See also Michael Berger,
Supreme Bait & Switch: The Ripeness Ruse In Regulatory
Takings, to be printed in 3 WAsH. U.J.L. & PoLicy 99
(2000) (“When property owners follow Williamson County
and first sue in state court, they are met in some federal
circuits with the argument that the state court litigation, far
from ripening the federal cause of action, instead has
extinguished it. Under these courts’ reasoning, the state
proceedings are res judicata, and thus bar the pursuit of the
now-ripened federal action”) (emphasis in original).

17

Rhode Island decided that Mr. Palazzolo’s takings claim
was unripe because he never received a “final decision” on
how he could use his land. The court so ruled because Mr.
Palazzolo never re-applied for “less ambitious,” “less
grandiose” development plans. /d. at 714.

A. Macdonald Did Not Establish A Categorical Re-
Application Requirement.

The Rhode Island courts divined a categorical need for
re-applications from MacDonald, Sommer & Frates v.
Yolo County, 477 U.S. 340 (1986), where the Court wrote:

[A]ppellant has submitted one _ subdivision
proposal and has received the Board’s response
thereto [i.e., a denial]. Nevertheless, appellant still
has yet to receive the Board’s “final, definitive
position regarding how it will apply the
regulations at issue to the particular land in
question.”
Id. at 352-353 (quoting Williamson County, 473 U.S. at
191). The MacDonald Court further opined that the
takings claim before it was unripe because regulators did
not provide a “final and authoritative determination of the
type and intensity of development legally permitted on the
subject property.” Jd. at 349.

“MacDonald suggest|s] that the Williamson County
‘final decision’ requirement might sometimes require
multiple proposals or variance applications before a
landowner’s case will be considered ripe.” Suitum, 520
U.S. at 738, n.12 (emphasis added). This is a far cry from
the unconditional requirement, imposed by the Supreme
Court of Rhode Island and other courts, that multiple
applications are always required to ripen takings claims. In
fact, four Justices dissented in MacDonald because they

18

feared the majority opinion could be interpreted as a re-
application mandate. Justice White wrote: “Nothing in our
cases...suggests that the decisionmaker’s definitive
position may be determined only from explicit denials of
property owner applications for development. Nor do these
cases suggest that repeated applications and denials are
necessary to pinpoint that decision.” MacDonald, 477 U.S.
at 359 (White, J., dissenting.) Thus, the dissent expressly
refused to “import{] a re-application requirement into the
‘final decision’ analysis.” Jd.'°

B. The Re-Application Standard Defies Consistent
Application By The Lower Courts.

MacDonald’s four dissenting Justices were prescient.
The judiciary’s treatment of the re-application gloss on
ripeness is “riddled with obfuscation and inconsistency.
Testimony of Professor Daniel R. Mandelker on H.R.
1534, reprinted at 31 THE URB. LAW. 234, 236 (Spring
1999) (hereafter, “Mandelker Testimony”). The poster
child for re-application reform is probably City of
Monterey v. Del Monte Dunes at Monterey, Ltd. 526 US.
687 (1999). “The city, in a series of repeated rejections,
denied proposals to develop the property, each time

10The Court “noted probable jurisdiction” in MacDonald to
address the “importan[t]...question [of] whether a monetary
remedy in inverse condemnation is constitutionally required
in appropriate cases involving regulatory takings....’ 477
U.S. at 348. While that was the question it wanted to decide,
it became sidetracked with ripeness issues.

19

imposing more rigorous demands on the developers.” Jd. at
694.11

While the property owners in Del Monte ultimately
overcame the city’s ripeness objections after nine years of

'1Professor Mandelker summed-up.the endless carousel of
roundabout negotiations that the De! Monte property owners
faced before they litigated the merits: “In 1981, the property
owners submitted a subdivision proposal to build 344
residential units. The plan was rejected, and city planners
informed that a plan for 264 units would be reviewed
favorably. The owners then submitted a plan for 264 units;
city planners rejected it, and informed that a plan for 224
units would be reviewed favorably. The owners then
submitted a plan for 224 units; city planners rejected it, and
informed that a plan for 190 units would be reviewed
favorably. The owners then submitted a plan for 190 units:
city planners rejected it, and the owners appealed to the city
council. The city council found the plan ‘conceptually
satisfactory,’ and granted a conditional 18-month use permit
to commence construction for the project. Subsequently, the
developer worked with planning board staff to meet the city
council’s conditions for the 190-unit development. Staff
recommended approval of the site plan, but the planning
board overrode staff's recommendation and issued a denial.
The property owners then appealed this decision to the city
council, which this time denied the site plan for 190 units.
Meanwhile, a sewer moratorium was imposed, a request to
extend the special use permit was rejected, and the permit
expired. The local officials thus expected the developer to
start from square one. Following this Kafkaesque process,
the federal district court dismissed a takings claim for lack of
ripeness, but the appellate court then reversed. See 920 F.2d
at 1502-1506.” Mandelker Testimony, reprinted at 31 THE
UrB. LAW. at 237-38.

20

negotiation and litigation, the land use labyrinth they
navigated is not unique. Consider the following:

e Forseth v. Village of Sussex, 20 F.Supp.2d 1267, 1272
_ (E.D. Wisc. 1998), aff'd in part, rev'd in part, 199 F.3d
363, 366 (7" Cir. 2000): Three subdivision plats
submitted. Plaintiff should have pursued a variance
from an “offensive condition” that required him to
convey a two-acre strip of land to the adjoining land
owner—who also happened to be the Village Board
President voting on the application—for the President’s
own private use at considerably less than fair market
value.

Good vy. United States, 39 Fed. Cl. 81, 101-103 (1997),
aff'd, 189 F.3d 1355 (Fed. Cir. 1999), cert. denied, 120
S.Ct. 1554 (2000): Over a nine year period, eight
applications were submitted to federal and state
agencies to build a subdivision. Although the U.S
Army Corps of Engineers ultimately denied the
application for a wetlands permit, the decision was not
“final” under Williamson County and MacDonald
because “neither the Clean Water Act nor Corps
regulations limit plaintiff's ability to submit a new
application reflecting a different, less intensive plan.”
2BD Ltd. Partnership v. County Comm'rs for Queen

21

plan was “in compliance with all applicable zoning
laws,” yet local officials “refused to approve the plan,
and instead informed plaintiffs that there were
additional requirements, not found in any zoning or
other statutes, which plaintiffs had yet to meet.”
Southview Assocs. v. Bongartz, 980 F.2d 84, 92 (2d
Cir. 1992), cert. denied, 507 U.S. 987 (1993): Takings
claim unripe because landowner did not “attempt to
modify the location of the units or otherwise seek to
revise its application.” Court provided no indication of
how many re-applications would be necessary, or what
type of development regulators would approve, before
the takings claim would ripen.

Kaiser Dev. Co. v. City and County of Honolulu, 649
F. Supp. 926, 940, 941 n. 19, 942 n. 21 (D. Hawaii
1986), aff'd, 898 F.2d 112 (9 Cir. 1990), cert. denied,
499 U.S. 947 (1991): After “beat[ing] their heads
against a stone wall” and receiving “several final
rejections” to develop beachfront land, takings claim
nonetheless dismissed as unripe because “potentially
profitable uses,” for which the landowner never
applied, existed on the property—such as agriculture,
private riding academies, private recreation camps, a
cemetery, private utilities, and aquaculture.

Anne's County, 896 F. Supp. 5 18 (D.Md. 1995), aff d, The American Planning Association (APA)
remand, 162 F.3d 1158 (4" Cir. 1998): In addition to understands that this judicial disarray sends a clarion call
seeking federal and state permits to build a travel plaza, for this Court to clarify takings ripeness requirements.
plaintiff submitted at least three site plan applications Accordingly, the APA, whose national membership largely

to local officials for approval. includes land use
planning professionals that work for
e Schulze v. Milne, 849 F. Supp. 708, 709 (N.D. Cal. governmental bodies, has urged the Court to dispense with
1994), aff'd in part, rev'd in part on other grounds, 98 the re-application concept:

F.3d 1346 (9" Cir. 1996): Property owners submitted a

It must be recognized that the reapplication
total of 13 revised plans to renovate their home. Each - PP

requirement invites local government to create a

22

more complicated and time consuming review and

approval process. It is, in fact, an open invitation

for some local governments to do mischief.

Unscrupulous officials can and often do easily

assert, after the fact, that they “would have been

willing” to consider an intensity of use or an
alternative type of use that the landowner never
proposed. This is plainly unfair and an abuse of the
reapplication rule and is why such a rule is
unrealistic and should no longer be required to
demonstrate ripeness for adjudication.
Brief of Amicus Curiae American Planning Ass’n in
Support of Respondent, Suitum v. Tahoe Regional
Planning Agency, No. 96-243, at 13 (hereafter “APA
Suitum Brief”).

In short, all too often the re-application process causes
landowners to “pass{] through procedural purgatory” only
to “wend{] [their] way to procedural hell.” Front Royal
and Warren County Indus. Park Corp. v. Town of Front
Royal, 135 F.3d 275, 284 (4" Cir. 1998). This Court now
has the opportunity to clarify MacDonald and reconsider
the statements which lead some to mistakenly believe that
an unknown number of re-applications and denials is
always necessary to yield a ripe takings claim.

C. The Court Should Adopt The “One Meaningful
Application” Standard, Modified By A Futility

Exception.

There is nothing ambivalent about Rhode Island’s
treatment of Mr. Palazzolo’s applications. The record lacks
evidence that would lead him to believe he would have
received a permit to fill amy amount of wetlands. Nor
should he be required to blindly guess whether a

23

hypothetical future application for some lesser amount of
fill would receive administrative approval. When the
applications to fill 18 acres were denied, his injury became
concrete enough, and the administrative decision became
sufficiently final, for the limited purpose of ripening his
constitutional grievance. Accordingly, “(t]he demand for
finality is satisfied by (Mr. Palazzolo’s] claim,...there
being no question here about how the ‘regulations apply to
the particular land in question.’ ” Suitum, 520 U.S. at 739
(quoting Williamson County, 473 U.S. at 191).

Under Williamson County, a final decision arises when
the “initial decisionmaker” delivers a “definitive position
on the issue that inflicts an actual, concrete injury ....” 473
U.S. at 192 (emphasis supplied). Accordingly, as-applied
regulatory takings claims have been considered unripe
where a property owner did not: (1) submit initial
development plans for approval in the first instance; '2 (2)
submit to an available process to obtain a permit that may
allow development!3; or (3) once an initial application has

'2See Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)
(because property owners “ha[d] not submitted a plan for
development of their property as the [challenged] ordinances
permit(ted}, there [was] as yet no concrete controversy
regarding the application of the specific zoning provisions”).

'3See Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1011-13 (1992) (had a “special permit procedure” to
the Coastal Council, for the purpose of determining
permanent deprivations of viable land uses, been available to
petitioner, he would have been required to pursue those
avenues for a ripe takings claim)

24

been denied, apply for a variance or waiver from
applicable land use regulations. '4

‘All of these avenues require some regulatory body to
act in an adjudicative capacity. In each situation, the
parties present evidence (often in the context of a public
hearing). Thereafter, an administrative agency is called
upon to issue some judgment, determination, or decree
relevant to the factual findings it made. See BLACK’S LAW
DICTIONARY at 39 (5" ed. 1979) (definition of
“adjudication”).'>

144 variance permits a land use that is otherwise prohibited.
See Hodel v. Virginia Surface Mining and Reclamation
Ass'n, 452 U.S. 264, 297 (1981) (as-applied claim unripe
because “[t]here is no indication in the record that appellees
ha[d] availed themselves of the opportunities provided by
the Act to obtain administrative relief by requesting...a
variance from the [applicable provisions of the Act}”;
Williamson County, 473 U.S. at 193 (the developer must
“resort to the procedure for obtaining variances ... [and
obtain] a conclusive determination by the Commission
whether it would allow” the proposed development).

ISFor example, a variance “provides relief from the
application of a land use regulation....For this reason, the
granting of a variance is an adjudicatory function’ ....Given
the rationales for the ripeness doctrine, the final decision
prong must be limited to adjudicatory relief. \n essence, the
ripeness doctrine requires that the land use agency adjudicate
the permissible uses of a given parcel of property.” Gregory
Overstreet, The Ripeness Doctrine of the Takings Clause: A
Survey of Decisions Showing Just How Far Federal Courts
Will Go to Avoid Adjudicating Land Use Cases, 10 J. LAND
Use & Envt’L L. 91, 111 (1994) (emphasis supplied).

25

For ripeness purposes, full completion of one land use
adjudication process—namely, submission of an
application, then pursuit of an available variance, and
denial of each—would amply satisfy any reviewing court’s
pragmatic need for ripeness'®. Denial of that application
and/or variance causes an injury to the landowner on that
request, and would not lead reviewing courts to
“entangl[e] themselves in abstract disagreements....”
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967).
Initial denial would not mean that a taking has in fact
occurred, but simply that a reviewing court can conduct its
typical review to determine whether the administrative
record for that particular decision supports the finding of a
taking on the merits.

While a re-application would yield a second final
decision and a second distinct injury, it would not further
perfect the regulators’ “definitive position” from denial of
the first application and variance. See Williamson County,
473 U.S. at 193. A landowner’s pursuit in Round 2 (or
Rounds 3 or 4 or 5) would do nothing to
“formalize[]...[the] effects” he feels in a “concrete way”
from denials in Round 1. See Abbott Labs., 387 U.S. at
148-49. See also Franklin v. Massachusetts, 505 U.S. 788,

16 NAHB submits that denial of an application, followed by
denial of a variance, is sufficient for finality purposes to
ripen a takings claim. Often, however, the doctrine of
exhaustion of administrative remedies will require a property
owner to pursue further avenues reasonably available under
local ordinances, such as an appeal for review by a city
council or a board of zoning appeals. See Williamson
County, 473 U.S. at 192 (discussing differences between
doctrines of finality and exhaustion of administrative
remedies).

26

797 (1992) (“[t]he core question is whether the agency has
completed its decisionmaking process, and whether the
result of that process is one that will directly affect the
parties”).

Admittedly, under the proposed standard, issues will
likely arise as to whether a particular application is
“meaningful.”'7 In the takings arena, however, any
ripeness standard will likely require future litigation to
flesh-out its meaning. Setting a single application/variance
benchmark will lend much needed certainty to landowners,
regulators and courts who, right now, have no objective
starting point for determining when “enough is enough”
for prudential ripeness purposes. Indeed, NAHB's
suggested standard furthers the Court’s instruction that the
finality element for ripeness must be interpreted “in a
pragmatic way.” Abbott Labs. v. Gardner, 387 U.S. at,
149-50 (1967). Moreover, a body of precedent is
developing to explain the one meaningful application
requirement and the courts are becoming accustomed to

I7Regardless of the re-application issue, the property
owner's claim in MacDonald was arguably unripe because
he did not even submit a single “meaningful” application to
develop his parcel. “The Board found numerous reasons why
appellant’s tentative subdivision map was neither ‘consistent
with the General Plan of the County ... nor with the specific
plan of the County ... embodied in the Zoning Regulations
for the County." MacDonald, 477 U.S. at 342. The County
rejected the tentative subdivision map because it failed to
provide basic elements for a viable and safe land use plan,
such as access to a public street, sewer and water hook-ups,
and police protection. /d. at 343. How could MacDonald's
tentative subdivision map have been “meaningful” when it
was inconsistent with the county’s master plan for land use,
and did not provide the most basic public services?

27

the standard. See Eastern Minerals Int'l, Inc. v. United
States, 36 Fed. Cl. 541, 548 (1996); Kawaoka v. City of
Arroyo Grande, 17 F.3d 1227, 1232 (9" Cir.), cert. denied,
513 U.S. 870 (1994); Unity Ventures v. County of Lake,
841 F.2d 770, 775 (7" Cir. 1988); Kinzli v. City of Santa
Cruz, 818 F.2d 1449, amended, 830 F.2d 968 (9" Cir.
1987), cert. denied, 484 U.S. 1043 (1988).

While submission of one meaningful application is a
useful guidepost to initiate the ripeness inquiry, there may
be situations where submitting an application or pursuing a
variance would be a futile act. Justice White recognized
that while a “landowner must pursue reasonably available
avenues that might allow relief, it need not take...patently
fruitless measures.” MacDonald, 477 U.S. at 359. The
First Circuit applies a futility exception “where the degree
of hardship that would be imposed by waiting for the
permit process to run its course is so substantial and
severe, and the prospects of obtaining the permit so
unlikely, that the property may be found to be
meaningfully burdened and the controversy concrete
enough to warrant immediate judicial intervention.”
Gilbert v. City of Cambridge, 932 F.2d 51, 61 n. 12 (1"
Cir. 1991). See also APA Suitum Brief at 21 (“the
‘futility’ exception should always apply after one
application has been made for a land use approval or
administrative relief. ...”) (original emphasis).

A California appellate case best reflects the need for a
futility exception in the regulatory takings context. In
Healing v. California Coastal Comm'n, 22 Cal. App. 4"
1158, 27 Cal. Rprtr. 758 (Cal. App. 2d 1994), the Coastal
Commission denied a permit for a one-story, three
bedroom home, “where it had not received a
recommendation from a non-existent board as to whether
the property should be restricted from development under

28

a non-existent program for acquisition and set-asides of
lots in the Santa Monica mountains.” Mandelker
Testimony, reprinted in 31 THE URB. LAw. at 238. The
state argued that the property owner’s takings claim was
unripe for failure to pursue these unavailable procedures.
The court, however, ultimately found the claim ripe and
remarked:

It is in the nature of our work that we see many

virtuoso performances in the theaters of

bureaucracy, but we confess a sort of perverse
admiration for the Commission’s role in this case.

It has soared beyond both the ridiculous and the

sublime and presented a scenario sufficiently

extraordinary to relieve us of any obligation to
explain why we are reversing the judgment. To
state the Coastal Commission’s position is to
demonstrate its absurdity.
Healing, 27 Cal Rprtr. at 764. But see Shelter Creek Dev.
Corp. v. Oxnard, 838 F.2d 375, 379 (9" Cir. 1988)
(requiring application under an unavailable ordinance).

To summarize, NAHB respectfully urges the Court to
adopt a futility exception to the one meaningful
application/variance standard. On a case by case basis, a
property owner would bear the burden to convince a court
that it would be “patently fruitless” under all of the
circumstances to submit an application or pursue a
variance. Such an approach would be fully consistent with
the Court’s recognition that the very nature of takings
claims raises “essentially ad hoc, factual inquiries.” Penn
Central Transp. Co. v. City of New York, 438 U.S. 104,
127 (1978).

29

Ill. CONCLUSION

NAHB respectfully requests this Court to rule that Mr.
Palazzolo should not be (1) precluded from litigating the.
merits of his takings claim simply because the regulations
at issue pre-dated the acquisition of his property, and (2)
required to re-submit some additional number of land use
applications to ripen his takings claim.

November 22, 2000
Respectfully submitted.

DUANE J. DESIDERIO

CHRISTOPHER G. SENIOR*
*Counsel of Record

THE NATIONAL ASSOCIATION
OF HOME BUILDERS

1201 15" Street, N.W.

Washington, D.C. 20005

(202) 822-0200

Attorneys for Amicus Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0384%3A10. Public record. Not legal advice.