Amicus Curiae Brief — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

10) MOTION: FILED

SEP 19 2vUl

No. 00-1167

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2000

e

TAHOE-SIERRA PRESERVATION COUNCIL, et ai.

Petitioners,

Vv.

TAHOE REGIONAL PLANNING AGENCY, et ai.,

Respondents.

4

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

=

Brief Amicus Curiae of

American Association of Small Property Owners, ef ai.

in Support of PETITIONER

(Complete List of Amici Appears on the Inside Cover)

-4

MARTIN S. KAUFMAN*

* Counsel of Record

Atlantic Legal Foundation

205 East 42nd Street, 9th Floor

New York, NY 10017

(212) 573-1960

Counsel for Amici Curiae

Complete list of amici curiae:

American Association of Small Property Owners

Apartment Association of South Central Wisconsin

American Land Rights Association

Apartment Owners Association

of Southern California, Inc.

Berkeley Property Owners Association

Chicago Creative Investors Association

Genessee Landlord Association

Georgia Real Estate Investors Association, Inc.

Greater Dayton Real Estate Investors Association

Illinois Rental Property Owners Association

Ohio Real Estate Investors Association

Property Owner's Association of Greater Baltimore

Property Owning Women

Real Estate Investors Association of Cincinnati

Real Estate Investors Association of Toledo

Suncoast Real Estate Investors Association, Inc.

Motion for Leave to File Brief Amicus Curiae of

American Association of Small Property Owners

in Support of Petitioner Out of Time

Amici curiae American Association of Small Property

Owners, ef al. hereby move this Court for leave to file a brief

amicus curiae in support of Petitioner out of time.

Amici expect to file their brief on September 19, 2001,

one week after Petitioners’ brief on the merits was due to be filed.

The delay in filing the brief of amici results from the

tragic events of September 11, 2001, which has caused serious

disruption to communications and the work of counsel for amici,

who are located in New York City.

Wherefore, amici curiae move for permission to file their

brief in support of Petitioner on or before September 20, 2001.

Dated: New York, New York

September 18, 2001

Respectfully submitted,

MARTIN S. KAUFMAN

Counsel of Record

Atlantic Legal Foundation

205 East 42nd Street

New York, New } ork 10017

212-573-1960

TABLE OF CONTENTS

Page

ED 6 ndddnc cotecdcceetdncesécocencees ii

Ts. cugdcdnpeneduscedcdebiccecediocnes l

I Rs oc ccccccescccesecssccoctucceces 2

Is o cc cccccctecccnscesccesescecss 3

ROMER « cccccccccccccccccceseccccccocesccccceces 4

1. Regulatory Limits on Economic Use of Private

Property Are As Much “Takings” As Are

Pluysical Appropriations ....... cc esccccccccccsces 4

A. Regulatory Limitations on Use of Property

ROP TEED 0b adbdcccdetccesees ccceséeess 4

B. Regulatory Takings Require Compensation .... 8

TABLE OF AUTHORITIES

Page(s)

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980) ............ 9

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)........ passim

Hendler v. United States, 952 U.S. 1364 (Fed. Cir. 1991) .. 14

Lucas v. South Carolina Coastal Council,

I. 5 nc cdeneccuscedbnéockbanckha 9,10

Monongahela Navigation Company v. United States,

inn ot cttindécwussecincédslesi< 12

Nollan v. California Coastal Commission,

Se ME ncbaddecteccbdovecesocsecs 7,11, 13

Penn Central Transp. Co. v. City of New York,

SP es BP abnccdbendtnnctsescecdacscecesns 9

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .... 10

San Diego Gas & Elec. Co. v.

City of San Diego, 450 U.S. 621(1981) ............. passim

TABLE OF AUTHORITIES (cont'd)

Page(s)

Cases (cont'd)

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency,

216 F.3d 764, 777 (9th Cir. 2000) .... 2... cece eee eee 19

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency,

228 F.3d 998 (9th Cir. 2000) .... 0... cece eee eee ee 10, 19

United States v. General Motors Corp.,

SED CAD, BID IGE 0 oc ccccdcccccccccccsccccccses 6, 17

ther Authoriti

R. Epstein, TAKINGS: PRIVATE PROPERTY AND

THE POWER OF EMINENT DOMAIN (1985)...........-. 6, 16

R. S. Freilich and E. A. Gavrin, "Takings

After Lucas" in David L. Callies, ed.

AFTER LUCAS: LAND USE REGULATION AND

THE TAKING OF PROPERTY WITHOUT

COMPENSATION (American Bar Ass'n Section

of Urban, State and Local Government Law (1993) ...... 10

iv

TABLE OF AUTHORITIES (cont'd)

Other Authorities (cont’d)

W. U. Larsen & M. Larsen, "Moratoria as

Takings Under Lucas," 46 Land Use Law

& Zoning Dig., no. 6 at 3 (1994)

John Locke, OF CIVIL GOVERNMENT (1690)

Nelson, "Private Rights to Government Actions:

How Modern Property Rights Evolve,"

1986 U. ILL. L. REV. 361

L. Tribe, AMERICAN CONSTITUTIONAL LAW

(2d ed. 1988)

Max Weber, "Politics as a Vocation" in

H. H. Gerth and C. Wright Mills, eds.,

FROM MAX WEBER, ESSAYS IN SOCIOLOGY (1958)

sree eeeeeeeeeeeeeeeeeeeeeeeee

INTEREST OF AMICI

Amici are organizations from throughout the United States

whose purpose is to represent the interests of small property

owners, through education, interaction with legislative and

regulatory bodies, and through legal proceedings. They believe that

this case is important to their constituents because it represents an

opportunity for this Court to clarify the principles embodied in the

Bill of Rights for the protection of the rights of individuals,

specifically their right to use and enjoy their property. A

description of each of them is found in the Addendum to this brief.

This brief is submitted in support of the petitioners, and we

urge the Court to reverse the judgment of the Court of Appeals for

the Ninth Circuit.'”

' Counsel for the parties have consented to the filing of amicus briefs by letter

dated September 4, 2001, and filed with the Clerk of this Court.

. Pursuant to Supreme Court Rule 37.6, amici curiae state that this brief was

not prepared, written, funded or produced by any person or entity other than

amici curiae or their counsel.

2

INTRODUCTORY STATEMENT

Amici believe that the facts of this case, as cogently stated

by petitioner, demonstrate that there has in fact been a permanent

ban on all productive use of petitioners’ land.’ Amici urge,

however, that whether the cessation of development is

characterized as "temporary" or "permanent" is immaterial, and that

all regulations that prohibit otherwise lawful use of property (apart

from "normal delays" inherent in threading through the land use

regulatory process) are compensable takings under the Fifth

Amendment.

Amici assume that the moratoria at issued were adopted for

a genuine and sound public purpose. There is no dispute that

TRPA had a legitimate concern, and that it was within its discretion

to make a policy choice to halt all development in "sensitive" zones

around Lake Tahoe to preserve the lake's "pristine" character.

The issue is simply whether a public agency, acting for the

public benefit, may shift the financial burden of its decision to stop

development to the shoulders of the property owners directly

affected, or whether the public at large must pay the price of that

policy choice.

Amici represent small property owners, who often suffer

particularly harsh economic injury when prevented from using their

propery; in most cases they are too small, and with too limited

5

Petitioners demonstrate that they have been prevented from building on their

properties by a series of rolling prohibitions imposed by the Tahoe Regional

Planning Agency ("“TRPA" or “respondent"); there were four formal

“moratoria” and a number of informal ones, the effect of which has been a

complete prohibition of any economic use of petitioners’ land since 1981.

TRPA has blocked petitioners’ construction of homes for two decades and that

prohibition in fact has become permanent. Petitioners’ property cannot be

used productively. The owners’ "Hobson's choice” is to continue to pay taxes

on their useless property or to sell at distress prices.

3

resources, to challenge governmental abuses of "temporary"

moratoria; they are too closely held and too cash poor to spread the

cost of, or wait out, "temporary" development bans which, as in

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987), last two years, let alone those which,

as in this case, last two decades.

SUMMARY OF ARGUMENT

The use and enjoyment of private property is a fundamental

right, and important to a democratic society. The takings clause

was designed to protect this core value.

This Court has long recognized that limitations on the

exercise of rights in private property are as much "takings" as are

physical invasion of property. Government regulation tends to

become ubiquitous, and government constantly develops new and

artful ways to appropriate rights to use and enjoy private property

for the "public good." Unless constrained by a requirement to

compensate owners of private property, in a majoritarian system,

government agencies will allocate disproportionate burdens of

achieving public purposes to politically weak segments of the

citizenry.

Temporary development moratoria, if not clearly and

closely limited in duration, work significant hardships on those

property owners prevented from developing the economic potential

of their land, and this constitutes a taking as clearly as does a

temporary physical taking.

Requiring compensation for temporary, but economically

significant, restraints on use and enjoyment of private property will

ensure that the burdens of achieving a socially desirable goal will

be equitably allocated among all taxpayers, and it will ensure that

4

the electorate makes informed decisions about policy choices and

priorities.

ARGUMENT

REGULATORY LIMITS ON ECONOMIC

USE OF PROPERTY ARE AS MUCH

"“TAKINGS" AS ARE PHYSICAL APPROPRIATIONS

A. Regulatory Limitations on Use of Property Are Takings.

The use and enjoyment of private property is a fundamental

right, and important to a democratic society. The takings clause

was designed to protect this core value.

Federal, state and local government agencies have

developed new forms of regulation that make it difficult to discern

clear boundaries between private property and what belongs to the

community. Government entities constantly develop new and artful

ways to appropriate rights to use and enjoy private property for the

"public good."

The traditional common law distinctions between private

property and state power have blurred as federal agencies, states,

counties, cities and other local government units perform more

functions -- many of them "proprietary" in nature -- to use property

ownership to achieve governmental objectives, and to establish new

forms of regulation through licenses, franchises, development

subsidies, etc. Actions by government officials often cannot be

separated from private sector interests. Indeed, every public act is,

at least in part, a response to expressed desires of private

5

individuals, and private actions often are a response to

governmental institutions, rules or incentives.

Unless constrained by a requirement to compensate owners

of private property, in a majoritarian system, government agencies

will unfairly allocate disproportionate burdens of achieving public

purposes to politically weak segments of the citizenry.

Justice Brennan recognized the ubiquitous nature of

takings. He did this both in equating regulatory takings and

physical invasion, and in equating "temporary" and "permanent"

takings for purposes of compensation. His approach brings

consistency to the interpretation of the takings clause. Government

actors occasion losses in both regulatory and physical invasion

cases, and the losses have the same effect on the property owner

whether they are permanent or temporary, except, of course, for the

quantum of damage caused.

Police power regulations such as zoning ordinances

and other land-use restrictions can destroy the use

and enjoyment of property in order to promote the

public good just as effectively as formal

condemnation or physical invasion of property.

From the property owner's point of view, it may

matter little whether his land is condemned or

flooded, or whether it is restricted by regulation to

use in its natural state, if the effect in both cases is

to deprive him of all beneficial use of it. . . .It is

only logical, then, that government action other

than acquisition of title, occupancy, or physical

invasion can be a “taking,” and therefore a de facto

exercise of the power of eminent domain, when the

effects completely deprive the owner of all or most

of his interest in the property.

6

San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621,

652-53 (1981 )(hereafter "San Diego Gas & Elec. Co.") (Brennan,

J., dissenting).

Professor Richard A. Epstein argues, and amici urge on this

Court, that nearly all regulatory restrictions on the use and

disposition of private property should be seen as prima facie

takings. R. Epstein, TAKINGS: PRIVATE PROPERTY AND THE POWER

OF EMINENT DOMAIN 57 (1985).

Ownership consists of three separate incidents: possession,

use, and disposition. As the Court in United States v. General

Motors Corp. expressed it:

The critical terms [of the takings clause] are

“property,” "taken" and "just compensation."

[These terms] have been employed in a more

accurate sense to denote the group of rights

inhering in the citizen's relation to the physical

thing, as the right to possess, use and dispose of it.

In point of fact, the construction given the phrase

has been the latter.

323 U.S. 373, 377-378 (1945).

", ..[P]ossession, use and disposition do not form a random

list of incidents; they form the core of a comprehensive and

coherent idea of ownership." R. Epstein, supra at 60. If

government removes or dininishes the rights of the owner in any

of the incidents of ownership, "it has prima facie brought itself

within the scope of the eminent domain clause, no matter how

small the alteration and no matter how general its application." R.

Epstein, id. at 57. In Professor Laurence Tribe's plain English

statement, ". . . forcing someone to stop doing things with his

property — telling him ‘you can keep it, but you can't use it — is at

times indistinguishable, in ordinary * rms, from grabbing it and

7

handing it over to someone else." (L. Tribe, AMERICAN

CONSTITUTIONAL LAW § 9-3 at 593 (2d ed. 1988").

Property owners have a right to build on their property,

subject only to reasonable regulation. "[T]he right to build on one's

own property--even though its exercise can be subjected to

legitimate permitting requirements--cannot remotely be described

as a “governmental benefit." Nollan v. California Coastal

Commission, 483 U.S. 825, 845 n.2 (1987) (hereafter "Nollan").

One commentator summarized the difference between a

"right" and a “benefit"in this context:

If a benefit is merely a privilege, then it will

continue only so long as government officials

determine that continuance "serves the public

interest." The recipient of a privilege faces

substantial uncertainty and insecurity, and is at the

mercy of government planners and administrators

who base their authority on claims to expert objec-

tivity. Moreover, the beneficiary knows that expert

decisions are often more arbitrary than these claims

would suggest.

"(R]jight[s]" . . . are more certain and secure.

Courts offer protection to holders of rights against

arbitrary or otherwise unjust government actions .

.. AS a practical matter, the government may be

able to revoke established rights only if the

political process devises some form of compensa-

tion; revocation without compensation may be

considered a de facto "taking" of a private property

right.

Nelson, "Private Rights to Government Actions: How Modern

Property Rights Evolve," 1986 U. ILL. L. REV. 361, 364.

B. Regulatory Takings Require Compensation.

In economic terms, requiring compensation is a way to

force public policymakers to consider the opportunity costs of their

proposed actions. Policies that "take" private property would then

have concrete budgetary impacts that would be immediately

reflected in tax bills or municipal borrowing capacity. If the

regulatory action does not have a cost to the government (and thus

to the public at large) regulators will believe that if they use a

regulatory scheme to stop development, they need not pay for the

impact on the owners, and will thus not be accountable to the

citizenry at large.

Economically efficient takings rules will also affect the

behavior of private citizens. Public choices are the result of the

competition of various groups for political benefits. Powerful

groups may not need a constitutionally mandated takings doctrine

to protect their interests; they will be able to ensure that the overall

legislative package is beneficial to them. Politically ineffective

individuals or groups, however, may be severely injured by some

public policy. Efficiency and fairness require that their costs be

taken into account. The operation of the political process may not

incorporate these costs, and thus compensation should be paid for

these losses to force politicians to recognize the existence and

rights of such small, powerless groups. Amici submit that the

location of the takings clause in the Bill of Rights evidences a clear

intent that the requirement of just compensation is designed to

protect those with insufficient political power to protect their

interests.

When public policies have unpredictable or

disproportionate impacts on small groups, the legitimacy of

government depends on the payment of compensation to mitigate

9

the arbitrary distributive consequences of many public policies.

Citizens whose assets have been taken are unlikely to be satisfied

with the argument that the system, "over all," is fair.

Private property and its protection are important building

blocks of democracy. Private property helps distinguish

individuals’ interests from those of the state, and thus acts as a limit

on state power.‘ |

In a typical regulatory takings case, a government agency

adopts a measure that severely restricts the ability of the landowner

to productively use her land, whether by rezoning, denials of

permits or variances, density limitations, etc. See, e.g., San Diego

Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981); Agins

v. City of Tiburon, 447 U.S. 255 (1980); Penn Central Transp. Co.

v. City of New York, 438 U.S. 104 (1978). When the effect of such

regulations is to deny private landowners economically productive

use of their land, compensation must be paid. Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992). When a

government agency imposes a moratorium on development, the

sole purpose of that action is to foreclose the landowner’s ability

to make any economic use of his land, either for a finite or an

indefinite period.’ Without an economic cost to government -- and

* For the central importance of private property to the creation and

preservation of democracy in the inevitable tension between the individual

and government, see John Locke, OF CIVIL GOVERNMENT ff 135, 138 (1690);

Max Weber, "Politics as a Vocation” in H. H. Gerth and C. Wright Mills, eds.,

FROM MAX WEBER, ESSAYS IN SOCIOLOGY 78 (Galaxy ed. 1958).

* The moratorium may be to permit local planners to study the potential uses

of land in the area without having development take place during their study,

or it could be to delay development until public facilites are adequate to serve

it, or it could be to preclude development indefinitely. Sometimes moratona

are abused by local agencies, mouthing the words of planning propnety while

intending all along to prevent use forever — or at least as long as possible.

See, e.g., Wendy U. Larsen & Marcella Larsen, “Moratoria as Takings Under

10 11

to decide whether they need or want to impose severe restrictions process.

so much that they are willing to pay a price to do so, rather than

imposing the cost on private landowners. As this Court perceived

in Lucas:

regulations that leave the owner of without * In an amicus curiae brief filed in First English on behalf of nearly half the

. . oF ns states (Alaska, Arkansas, California, Florida, Hawaii, Illinois, Maine,

economically beneficial or productive options for Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New

its use--typically, , by requiring York, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah,

—e wepepupend punning Vermont, Virginia, Washington, Wyoming, and Puerto Rico) argued that

left substantially in its natural state--carry with "Adoption of appellant's radical reformulation of takings jurisprudence would

them a heightened risk that private property is cripple amici’s ability to perform regulatory functions upon which their

bei : f " r citizens’ health, safety and welfare quite literally depend.” States’ amicus brief

ing pressed into some form of public service in First English at 1-2. The states argued further that "Compelled payment of

under the guise of mitigating serious public harm. interim damages. . . would . . . carry the risk of financial chaos for state and

of : , local governments; and . . . have a major chilling effect on the regulatory

505 U.S. at 1018. To similar effect, this Court held in process.” /d. at 2, and that "[TJhe rule urged by appellant could undermine the

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) that fiscal well-being of state and local governments. Judicially compelled

: : : damages in this context could have major adverse fiscal consequences. /d. at

private property cannet cavelierty be commandeqed without 23. The of d + teh ano

payment simply "because the public wanted it very much." As that “temporary taking” theory, they urged, would have “a major chilling effect

Court i it, " : : upon essential governmental functions.” /d. at 25.

perceptively stated it, [T]he question st bottom is upon caetien man ty Go Sanpend head Lent ie

whom the loss of the changes desired should fall." /d., at 416. amicus brief on behalf of the National Association of Counties, the National

The Court can anticipate that TRPA and its amici curiae League of Cities, the U.S. Conference of Mayors, the National Governors’

Association, the American Planning Association and others in First English:

"such a decision could paralyze governmental efforts to regulate land use to

protect the public health and safety from a host of...injuries....In the wake of

Lucas,” 46 Land Use Law & Zoning Di . 6, p. 3 (1994). As Judge such a decision, claims for compensation [would] overioad{ ] court dockets

Santaché exted to bio Gsena Gum Gee domed of echacsinn on bane: and threaten[ } bankruptcy for state and local governments. Bnef of State and

Why would a government enact a permanent regulation- Local Legal Center at 3. .

and nsk imcurnng an obligation to compensate when it can The same types of arguments were made to this Court in Nollan by the

enact one moratorium after another, perhaps indefinitely? County Supervisors Association of Califormia, six counties and 46 cities in

Under the theory adopted by the panel, it's hard to see California: “the Court's decision in this case may affect amici curiae's

when a property owner would ever state a takings claim continued ability to regulate land use for the benefit of the public... . A

against such a scheme. finding by this Court that dedication requirements are either permanent

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 228 physical occupations or lesser physical invasions subject to stricter scrutiny

F.3d 998, 1001 (9th Cir. 2000). peer li 7-+~ dir nqurnenie.~ pu ep epemrieaerianaeetenennas

For a description of the subtlety of land use planners in devising methods to implications.” California entities bref at

prevent development without incurring the obligation to pay compensation, These arguments simply ignore the point that “Once a court determines that

see Robert S. Freilich & Elizabeth A. Gavrin, "Takings After Lucas” in David a taking has occurred, the government retains the whole range of options

L. Callies, ed., AFTER LUCAS: LAND USE REGULATION AND THE TAKING OF already available—-amendment of the regulation, withdrawal of the invalidated

PROPERTY WITHOUT COMPENSATION (American Bar Ass'n Section of Urban, regulation, or exercise of eminent domain.” First English, 482 U.S. at 321.

State and Local Government Law (1993)).

12

Rather than being a limitation on the ability of government

to act in the public interest, compensation is a substitute for

imposing severe restrictions on the ability of public officials to

adopt policies that are deemed desirable by the political class or a

majority of the political unit. The Fifth Amendment is designed to

prevent the public from placing upon one

individual more than his just share of the burdens

of government, and says that when he surrenders to

the public something more and different from that

which is exacted from other members of the public,

a full and just equivalent shall be returned to him.

Monongahela Navigation Company v. United States, 248 U.S. 312,

325 (1893). As Chief Justice Rehnquist put it in First English:

It is axiomatic that the Fifth Amendment's just

compensation provision is “designed to bar

Government from forcing some people alone to

bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.”

First English, 482 U.S. at 318-319 (citations omitted). He

recognized the need to balance the needs of governments to protect

the public interest and the Constitution's overarching purpose in

protecting the rights of individuals as against government power:

We realize that even our present holding will

undoubtedly lessen to some extent the freedom and

flexibility of land-use planners and governing

bodies of municipal corporations when enacting

land-use regulations. But such consequences

necessarily flow from any decision upholding a

claim of constitutional right; many of the

provisions of the Constitution are designed to limit

the flexibility and freedom of governmental

13

authorities, and the Just Compensation Clause of

the Fifth Amendment is one of them. As Justice

Holmes aptly noted more than 50 years ago, "a

strong public desire to improve the public

condition is not enough to warrant achieving the

desire by a shorter cut than the constitutional way

of paying for the change." Pennsylvania Coal Co.

v. Mahon, 260 U.S., at 416, 43 S.Ct., at 160.

First English, 482 U.S. at 321-322.

Justice Scalia, in finding that a taking had occurred in

Nollan, argued that even if the California Coastal Commission's

policy was sound, it does not follow that coastal residents "can be

compelled to contribute to its realization .. . . [I}f [the

Commission] wants an easement across the Nollans’ property, it

must pay for it." Nollan, 483 U.S. at 841.

Il.

TEMPORARY TAKINGS

REQUIRE COMPENSATION

The fact that a moratorium may be characterized as

"temporary" should have no bearing on the property owner's

entitlement to compensation, if the limitation on her use of her

property is significant and endures for more than a de minimis

time.’

” Chief Justice Rehnquist set out practical parameters in First English: "We.

. .do not deal with the quite different questions that would arise in the case of

normal delays in obtaining building permits, changes im zoning ordinances,

variances, and the like which are not before us.” 482 U.S. at 321.

14

Justice Brennan analyzed the legal principles succinctly

when he wrote:

"The fact that a regulatory ‘taking’ may be

temporary, by virtue of the government's power to

rescind or amend the regulation, does not make it

any less of a constitutional ‘taking.’ Nothing in the

Just Compensation Clause suggests that ‘takings’

must be permanent and irrevocable. Nor does the

temporary reversible quality of a regulatory ‘taking’

render compensation for the time of the ‘taking’ any

less obligatory. This Court more than once has

recognized that temporary reversible ‘takings’

should be analyzed according to the same

constitutional framework applied to permanent

irreversible ‘takings.’ "

San Diego Gas & Elec. Co., 450 U.S. at 657 (1981) (Brennan, J.,

dissenting). In his opinion in San Diego Gas, Justice Brennan

expounded a unified theory of takings. In Justice Brennan's view,

derived from the conviction, which amici share and urge here, that

the Bill of Rights is an individual's fundamental protection against

governmental overreaching, all the many divergent types of

limitations on private property owners require compensation. The

fact that some limitations may be for temporary periods of time

merely affects the amount of compensation that would be due. (see

450 U.S. at 658-660.)°

In First English, Chief Justice Rehnquist began his analysis

of this issue by pointing out the equivalence under the takings

clause of the Fifth Amendment of physical invasions and

* See Hendler v. United States, 952 U.S. 1364, 1376 (Fed. Cir. 1991) ("[Tyhe

fact that [the government's} action was finite went to the determination of

compensation rather than to the question of whether a taking had occurred”).

15

regulations which have the effect of destroying an owner's property

interest. Chief Justice Rehnquist went on to analyze cases of

temporary physical invasion takings, from which he concluded that

"(t]hese cases reflect the fact that ‘temporary’ takings which, as

here, deny a landowner all use of his property, are not different in

kind from permanent takings, for which the Constitution clearly

requires compensation" (First English, 482 U.S. at 318).

Temporary physical invasions constitute takings and regulatory

takings are equivalent to physical invasion takings. First English,

482 U.S. at 319; see also San Diego Gas and Electric Co., 450 U.S.

at 653 (Brennan, J., dissenting). When the government's actions

have already effected a taking of all economic use of property, no

subsequent action by the government can relieve it of the duty to

provide compensation for the period during which the taking was

effective. First English, 482 U.S. at 321.

First English thus recognizes a class of temporary

regulatory takings, adopting Justice Brennan's reasoning in his

dissent in San Diego Gas and Electric Co. In recognizing that

compensation is due for temporary takings, the Court refined its

economic impact criterion to encompass fairly short-term losses,

and also recognized that takings of various kinds -- physical

invasion or regulatory restrictions, permanent or temporary --

constitute a continuum of government actions, all of which require

corupensation.

Temporary takings, as this Court held in First English, are

no different in kind from permanent takings. The duration of the

taking merely affects the quantum of compensation, not entitlement

to compensation.’

% Requiring compensation for “temporary ing moratoria” will not

paralyze land use planners and will not let loose rapacious developers. If a

planning moratorium is longer than “normal delays in obtaining building

16

As Justice Brennan noted, from the property owner's

perspective, there is no substantive difference between a

government agency's decision to halt all use of property, even

"temporarily," and a government agency's decision to physically

take the property temporarily. Either way, the government prevents

the owner's use of the property for whatever period it deems

necessary or desirable. See San Diego Gas & Elec. Co., 450 U.S.

at 652 (dissenting opinion). "What stamps a government action as

a taking is what it does to the property rights of each individual

who is subject to its actions: nothing more or less is relevant." R.

Epstein, supra, at 94.

When regulations deny an owner the use of his land through

the exercise of the police power, whether it is a physical invasion

or a regulatory limitation, there is no effective difference. In both

situations, the owner is deprived of the use and enjoyment of the

land, and it is that deprivation, not the acquisition of title by the

government, that constitutes a taking.

[T]he deprivation of the former owner rather than

the accretion cf a right or interest to the sovereign

constitutes the taking. Governmental action short

of acquisition of title or occupancy has been held,

permits, changes in zoning ordinances, variances, and the like ... ."_ (First

English, 482 U.S. at 321), but amounts to a reasonable development hiatus,

the time value may be too little for an owner to have an incentive to undertake

the lengthy and expensive legal proceedings to collect damages. If she does,

the cost to the government agency will not be so prohibitive that the agency

will be deterred from enacting the moratorium, if it deems such truly to be in

the public interest.

'© In First English, 482 U.S. at 319, this Court analogized regulatory taking

for a period of years to the condemnation of a leasehold, which requires

compensation: “The value of a leasehold interest in property for a period of

years may be substantial, and the burden on the property owner in

extinguishing such an interest for a period of years may be great indeed."

17

if its effects are so complete as to deprive the

owner of all or most of his interest in the subject

matter, to amount to a taking."

United States v. General Motors Corp., 323 U.S. 373, 378 (1945).

Justice Stevens, dissenting in First English, argued that

what the Court called a "temporary regulatory taking" was in fact

merely a small diminution of value:

Why should there be a distinction between a

permanent restriction that only reduces the

economic value of property by a fraction-perhaps

one-third-and a restriction that merely postpones

development of a property for a fraction of its

useful life-presumably far less than a third?

First English, 482 U.S. at 332. These are, according to Justice

Stevens, "irreconcilable results." (id.)

Amici submit that Justice Stevens, dissenting in First

English, was correct in pointing out the apparent anomaly, but

amici also suggest that the results are not "irreconcilable." Justice

Stevens’ proposed solution -- in essence to ignore the "temporary"

loss suffered by the property owners -- defeats the central purpose

of the takings clause, to protect individual rights. The doctrinally

consistent and constitutionally acceptable way to reconcile the

results is for this Court to reiterate that both permanent regulatory

restrictions that result in partial, but significant, reductions in

economic value of property and regulations (or moratoria) that

postpone development for a substantial time, require compensation.

This approach achieves a basic objective of the law: clarity,

coherence, predictability and substantial consistency in applic2‘ion.

It recognizes a "temporary" moratorium as a taking for the duration

of the moratorium. When government action interferes

substantially with, or limits, the ability of a property owner to use

his land in an economically viable way a taking has occurred and

compensation is due:

The language of the Fifth Amendment prohibits

the "tak[ing]" of private property for ‘public use’

without payment of ‘just compensation.’ As soon as

private property has been taken, whether through

formal condemnation proceedings, occupancy,

physical invasion, or regulation, the landowner has

already suffered a constitutional violation, and the

self-executing character of the constitutional

provision with respect to compensation is triggered.

This Court has consistently recognized that the just

compensation requirement in the Fifth Amendment

is not precatory: once there is a ‘taking,’

compensation must be awarded."

San Diego Gas & Elec. Co., 450 U.S. 621 at 654 (Brennan, J.,

dissenting; citations and internal quotation marks omitted;

emphasis in original.)

Temporary development moratoria, if not clearly and

closely limited in duration, work significant hardships on the

property owners prevented from developing the economic potential

of their land, and this constitutes a taking as clearly as does a

temporary physical taking. Requiring compensation for temporary,

but economically significant, restraints on use and enjoyment of

private property will ensure that the burdens of achieving a socially

desirable goal will be equitably allocated among all taxpayers, and

it will ensure that the electorate makes informed decisions about

policy choices and priorities.

This Court need not, in this case, determine whether there

is a “bright line" between the "normal delays in obtaining building

permits, changes in zoning ordinances, variances, and the like"

19

described in First English, 482 U.S. at 321, and a temporary

regulatory interference with ownership rights that amounts to a

taking.'' The fact that in this case the regulatory agency has

adopted a consecutive series of "temporary" moratoria that has

prevented Petitioners from building single family residences on

their land for two decades clearly falls on the "takings" side of any

such line.

The Ninth Circuit dismissed the relevance of First English

case by describing it as "not even a case about what constitutes a

taking." (Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 216 F.3d 764, 777 (9th Cir. 2000). The Circuit

Court simply ignored plain language in First English, where this

Court stated the issue thus: "We now turn to the question whether

the Just Compensation Clause requires the government to pay for

‘temporary’ regulatory takings." (482 U.S. at 313). Indeed, the

phrase "temporary regulatory taking" or its equivalent appears

throughout the majority and dissenting opinions in First English.

This Court apparently thought that case was about whether a

"temporary" regulatory limitation on ownership rights is a "taking."

This Court had no problem dealing directly with the

question whether compensation is required when the landowner's

bundle of property rights is "temporarily" abrogated, nor in holding

that such a deprivation was compensable. The facts of this case

warrant no different outcome.

"As Judge Kozinski put it "[TJhere is no clear-cut distinction between a

permanent prohibition and a temporary one. Governmental policy is

inherently temporary while land is timeless. Even a permanent prohibition

can be rescinded and, in the fullness of time, almost certainly will be.” Tahoe-

Sierra Preservation Council v. Tahoe Regional Planning Agency, 228 F.3d

998, 1001 (9th Cir. 2000).

20

CONCLUSION

Amici respectfully submit that this Court has already held

that both regulatory takings and physical takings require the

government to compensate the owner of the private property taken.

Amici also respectfully submit that this Court has recognized that

“temporary” limitations on the exercise of property ownership

rights can be a taking if they exceed quite modest duration. These

doctrines are, in fact, necessary to effectuate a core constitutional

protection.

The judgment of the Court of Appeals for the Ninth Circuit

should be reversed.

September 18, 2001

Respectfully submitted,

MARTIN S. KAUFMAN

Counsel of Record

Atlantic Legal Foundation

205 East 42nd Street

New York, New York 10017

212-573-1960

Counsel for Amici Curiae

A-l

ADDENDUM

DESCRIPTION OF THE AMICI

American Association of Small Property Owners is a

nonpartisan, nonprofit 501(c)(3) corporation. Since 1993, AASPO

has been working for the right of small property owners to prosper

freely and fairly -- to make possible the American dream of

building wealth through real estate. Based in Washington, DC,

AASPO is the only national organization for small landlords,

property owners and real estate investors to share information and

strategies on important issues of the day. AASPO has chapters in

more than 25 states.

American Land Rights Association is a national clearinghouse

and support coalition, encouraging private property ownership,

family recreation, multiple use of federal lands, commodity

production, and access to federally controlled lands. ALRA has a

membership of 10,000.

Apartment Association of South Central Wisconsin, located in

Madison, has been in existence since 1969, and is the only

organization serving the rental housing providers of Columbia,

Dane, Green, Sauk, and lowa Counties in Wisconsin. Its mission

is "To unite and serve area apartment owners, managers, investors,

and the community; and promote an environment in which

members may successfully conduct their businesses while serving

their residents and their communities with honesty, integrity,

fairness and the highest degree of professionalism." It has

approximately 500 members.

A-2

Apartment Owners Association of Southern California, Inc. is

a trade association that provides educational and support services

to apartment owners throughout the State of California. Located in

Van Nuys, AOA was founded in 1978 and currently has 12,000

members.

Berkeley Property Owners Association of Berkeley, California,

has been defending the rights of small property owners for over

twenty years. It is a nonprofit association of rental housing

providers and has approximately 650 members.

Chicago Creative Investors Association provides educational,

motivational and networking support to real estate investors in the

Chicagoland area. It was founded in 1983 and currently has

approximately 500 active members.

Genessee Landlord Association is a nonprofit trade association

and has served the needs of landlords in the Flint, Michigan area for

more than 25 years. It has more than 500 members.

Georgia Real Estate Investors Association, Inc. is the largest real

estate investors association in the United States. With 2200

members, Atlanta-based GaREIA brings together the novice, the

part-time and the experienced investor with education, networking,

publications and a monthly meeting of educators and business

associates to share information. GaREIA started in the early

1980's. Its mission is to assist its members in succeeding in their

real estate investment plans by providing continuing education,

motivation, and opportunity in a positive and mutually supportive

environment.

A-3

Greater Dayton Real Estate Investors Association is a nonprofit

educational association of real estate investors and rental! housing

providers serving eight counties in Southwestern Ohio. It has more

than 350 members.

Illinois Rental Property Owners Association is an organization

of rental property owners, investors, and managers in Illinois. It

unites numerous member organizations from around the state,

comprising approximately 4,000 property owners. Illinois Rental

Property Owners Association's mission, in part, is to provide a

unified voice for Illinois rental property owners.

Ohio Real Estate Investors Association is a state-wide business

league that provides education and resources to enable property

owners to realize the full potential of their real estate investments.

It has 18 member groups in the state representing some 5,000 active

members.

Property Owner's Association of Greater Baltimore, Inc. was

established in 1957, and is a voluntary trade association consisting

of hundreds of owners and/or managers of rental property in the

Greater Baltimore metropolitan area. Its members own or control

tens of thousands of rental units in the Baltimore area and range

from owners of a few single family rental units to owners of

hundreds of single and multi-family dwellings. The Association

provides services to its members and the community in general,

including educational seminars and mediation in landlord-tenant

disputes. It also provides guidance and support to the Governor of

Maryland and the Maryland General Assembly.

As

Property Owning Women is a nonprofit association of small

rental building owners in New York City. It has approximately 100

members. Property Owning Women's mission, in part, is to educate

the public about the role that small property owners play in the

maintenance of New York City's diversity, economic health, and

quality of life.

Real Estate Investors Association of Cincinnati is the largest and

most active real estate investor group in Ohio and one of the

biggest in the country. It has over 500 members.

Real Estate Investors Association of Toledo serves the needs of

real estate investors in Northwest Ohio. The nonprofit association

encourages all levels of investors to expand their knowledge by

networking, attending meetings and participating in educational

programs. It is active in public affairs with many of its members

serving on various community boards. The Toledo REIA has

approximately 300 members.

Suncoast Real Estate Investors Association, Inc. has 400

members, who provide safe and affordable housing to Tampa,

Florida. It is a nonprofit corporation that exists to inform and

educate its members in all aspects of real estate investing.

as

Certificate of Service

Martin S. Kaufman, an attorney admitted to practice before the

bar of this Court, hereby declares under penalty of perjury that two

copies of the foregoing brief of amici curiae American Association of

Small Property Owners, ef ai. in support of the petitioner and motion

for leave to file the amicus brief out of time were served on the

following counsel of record for the parties on the 19° day of

September, 2001, by depositing same in a postal depository box under

the care of the United States Postal Service, in a properly addressed,

first class postage prepaid envelopes addressed to them at:

Michael M. Berger

Berger & Norton

1620 26th Street, Suite 200 South

Santa Monica CA 90404

Counsel of Record for Petitioners

Lawrence L. Hoffman

Hoffman Law Offices

3000 No. Lake Blvd.

P.O. Box 7740

Tahoe City, CA 96145

Attorney for Petitioners

E. Clement Shute, Jr.

Shute, Mihaly & Weinberger

396 Hayes St.

San Francisco, CA 94102

Counsel of Record for Respondents

John L. Marshal!

Tahoe Regional Planning Agency

P.O. Box 1038

Zephyr Cove, NV 89448

Attorney for Respondent Tahoe Regiona! Planning Agency

Hon. Bill Lockyer

Attorney General of the State of California

Attn.: Richard M. Frank

1300 I Street

P.O. Box 944255

Sacramento CA 94244-2550

Attorney for Respondent State of California

Hon. Frankie Sue Del Papa

Attorney General of the State of Nevada

Attn.: William J. Frey

100 North Carson Street

Carson City, NV 89701

Attorney for Respondent State of Nevada

Dated: New York, New York

September 19, 2001

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