Amicus Curiae Brief — Franconia Associates v. United States

(4)

No. 01-455 _—

In The

Supreme Court of the United States

FRANCONIA ASSOCIATES et al.,

Petitioner,

Vv.

UNITED STATES,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals For The Federal Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF PETITIONERS

DUANE DESIDERIO

*THOMAS JON WARD

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15™ STREET, NW

WASHINGTON, DC 20005

(202) 266-8200

*COUNSEL OF RECORD

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE...................1

THE PROPERTY OWNERS IN THE CASE AT

BENCH SHOULD NOT BE TIME-BARRED FROM

BRINGING A TAKINGS CLAIM, BECAUSE ANY

SUCH CLAIM COULD NOT HAVE ACCRUED

UNTIL THE GOVERNMENT APPLIED THE

STATUTE TO THE PETITIONERS’ PROPERTY ..4

A. Takings Cases Decided in the Real Property

Context Apply Equally When Monetary

Property is Taken ......

The Federal Circuit’s Decision Below Cannot

be Reconciled with Palazzolo or Williamson

TABLE OF AUTHORITIES

CASES Page(s)

Broadwater Farms Joint Venture v. United States, 121

A pee | fe 8, eon 12

City of Annapolis v. Waterman, 745 A.2d 1000 (Md. App.

BODE) cececesecseverecevesseoeseseonseonenscssssonisnsesianenssesusnienenmnainitl 9

Concrete Pipe and Prods. v. Construction Laborers

Pension Trust, 508 U.S. 602 (1993) .........cccccceeeeeeee passim

District Intown Properties Limited Properties, et al.

v. District of Columbia, et al., 198 F.3d 874 (D.C. Cir.

SII .ccsecsesssocsnssonsssnnsvessssssssnssnennteeetiiainamamaann 9

Dolan v. City of Tigard, 512 U.S. 374 (1994) woes 7

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).......... 8

Florida Rock Industries, Inc. v. United States, 18 F.3d

1560

TOR. Cat. BGDED nccoscsascsscssessesesisssentneenmiimeemiiumaaaal 12

Forest Properties Inc. v. United States, 177 F.3d 1360

COG. COP. 1GBF) ncccceccsscesecoseessscsessintensscesbinienmanmuanataaal 12

Franconia Associates v. United States, 240 F.3d 1358

GOD, Cas. BIDE DP cccscssssscscsessscerssesnesseienmisciiniammmmialas 4-5

Good v. United States, 189 F.3d 1355 (Fed Cir. 1999)..12

Hadachek v. Sebastian, 239 U.S. 394 (1917) ....ccccceseeeeee 7

Hodel v. Virginia Surface Mining & Reclamation Ass'n,

Ee 6

Howard W. Heck and Assoc., Inc. v. United States, 134

ee 12

Keystone Bituminous Coal Ass'n v. DeBenedictis,

ES Sr 7

Loveladies Harbor, Inc. v. United States, 28 F.3d 1171

Ee 9,12

Lucas v. South Carolina Coastal Commission,

ee 7

Palazzolo v. Rhode Island,

seer crcennnmnnans 10-12

Penn Central Transp. Co. v. New York City, 438 U.S. 104

SEE sieseeneiennnsiassiareniteemansnnssansenssnsesneseseneszeccscocesccovezeseceses 7-8

Phillips v. Washington Legal Found.,

ne 8

Suitum v. Tahoe Regional Planning Agency,

Iran I Tenn ncnnnenenenenesencnecscsencocees 4

United States v. Riverside Bayview Homes, 474 U.S. 121

STII aliehddeeintiehdieaerinteinbatnennnicensenstecenscensesezsssecccsseceneccees 6

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

iV

Villas of Lake Jackson, Ltd. V. Leon County, 906 F.Supp

SE EAE FE Ce cccenscnnentnciinticibinneibiniiaanbidiiaaniniiaiell 9

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)......ccccccccecceceeee 12-13

STATUTES

ie SE ~ & TIO cecrsssnctnsnsnrcanennesonnnsinnnsniiaptantiniatidninaiill 5

OTHER

Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell

a eS Tea Yen 9

Douglas L. Grant, Western Water Rights and the Public

Trust Doctrine: Some Realism About the Takings Issue,

Se CD, Gh, Cos Gi ee cetasenttectainilaiinaiaiaiiiiaiaiiains 9

James E. Holloway, Donald C. Guy, Smart Growth and

Limits on Government Powers: Effecting Nature, Markets

and the Quality of Life Under the Takings and Other

Provisions, 9 Dick. J. Env. L. Pol. 421 (2001) .....0.00000.... 9

l

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 petitioners. The letters of

consent have been filed with the Clerk of the Court."

NAHB represents over 205,000 builder and associate

members throughout the United States. Its members

include not only people and firms that construct and

supply single family homes, but also apartment,

condominium, multi-family, 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 remedies available to its members under the

U.S. Constitution and federal statutes.

Since its inception, NAHB has played an integral role

in increasing affordable housing for low-income people.

Many of its members construct multifamily buildings,

including government-subsidized housing.

NAHB has been before the Court as amicus curiae or

as “of counsel” to the landowner in a number of cases

involving the rights of property owners and the remedies

available to them when their 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

' Pursuant to Rule 37.6 of this Court, amicus state that their counsel

authored this brief and amicus paid for it. This brief was not written

in whole or part by counsel for a party, and no one other than amicus

made a monetary contribution to its preparation.

2

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985),

MacDonald, Sommer & Frates v. Yolo County, 477 U.S.

340 (1986), First English Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987), Nollan v. California Coastal

Comm'n, 483 U.S. 825 (1987), Yee v. City of Escondido,

503 U.S. 519 (1992), Lucas v. South Carolina 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), City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999),

Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and

Tahoe-Sierra Reservation Council, Inc. v. Tahoe Regional

Planning Agency, et al., --- U.S. --- - argument held

January 7, 2002).

3

SUMMARY OF ARGUMENT

This Court has made clear that a takings claim does not

accrue until the government has denied compensation. —

Furthermore, this Court and lower courts have never made

a distinction between monetary takings claims and real

property takings claims. Thus, the Federal Circuit erred in

holding that the petitioner’s takings claim accrued when

Congress enacted ELIHPA in 1°88.

Ses

4

THE PROPERTY OWNERS IN THE CASE AT

BENCH SHOULD NOT BE TIME-BARRED FROM

BRINGING A TAKINGS CLAIM, BECAUSE ANY

SUCH CLAIM COULD NOT HAVE ACCRUED

UNTIL THE GOVERNMENT APPLIED THE

STATUTE TO THE PETITIONERS’ PROPERTY.

NAHB’s brief addresses the second question presented:

Whether a Fifth Amendment takings claim

accrues for purposes of 28 U.S.C. § 2501 when

Congress enacts a statute alleged to abridge a

contractual right to freedom from regulatory

covenants upon prepayment of government

mortgage loans.

The Federal Circuit answered that question

affirmatively: all takings claims based on the Emergency

Low Income Housing Preservation Act of 1987

(“ELIHPA”) first accrued when that statute was passed in

1988. So, according to the Federal Circuit, the last time a

takings claim could have been filed under ELIHPA was in

1994. See Franconia Associates v. United States, 240 F.3d

1358, 1365-66 (Fed. Cir. 2001). That was the wrong

result.

The Federal Circuit itself recognized, “[a] clair

against the United States first accrues when the

government’s liability is determined.” Franconia

Associates, 240 F.3d at 1363 (citing Kinsey v. United

. States, 852 F.2d 556, 557 (Fed. Cir. 1988)). As this Court

has made clear, not all takings violate the Fifth

Amendment. The constitutional infraction arises where the

5

taking goes uncompensated. See, e.g., Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725, 734 (1997)

(stressing “Fifth Amendment’s proviso that only takings

without ‘just compensation’ infringe that Amendment”). —

Accordingly, any takings claims the FmHA borrowers may

bring, as applied to them, could not have accrued simply

upon Congress’s passage of ELIHPA. (The claimants do

not posit their case as a facial challenge.) Rather, an as-

applied ELIHPA taking would have accrued only when the

government denied one of the claimant’s requests to

prepay his or her loan.” The six-year clock in 28 U.S.C. §

2501 would have started ticking from that point forward,

and the Federal Circuit acted in error by ruling otherwise.

? The FmHA can accept prepayment without making efforts to extend the

low income use if certain conditions exist. 42 U.S.C. § 1472(c)5)(G)

(1988). Furthermore, the Federal Circuit recognized that there was a

process whereby a borrower could prepay his or her loan:

Subtitle C imposes restrictions on prepayments of section

515 mortgages that originated before December 21, 1979.

One restriction, codified in 42 U.S.C. § 1472(c)(4)(A)

(1988), requires that before FmHA can accept a prepayment,

it must "make reasonable efforts to enter into an agreement

with the borrower under which the borrower will make a

binding commitment to extend the low income use of the

assisted housing and reiated facilities for not less than the 20-

year period beginning on the date on which the agreement is

executed.”

Franconia Associates, 240 F.3d 1361 (emphasis added).

6

A. Takings Cases Decided in the Real Property

Context Apply Equally When Monetary

Property is Taken.

“[T]he mere assertion of regulatory jurisdiction by a

governmental body does not constitute a regulatory

taking.” United States v. Riverside Bayview Homes, 474

U.S. 121, 126 (1985) (citing Hodel v. Virginia Surface

Mining & Reclamation Ass'n, 452 U.S. 264, 293-297

(1981)). In both Riverside Bayview and Hodel, the Court

ruled that the mere enactment of a statute regulating the

use of real property did not, by itself, effect a Fifth

Amendment taking. See Riverside Bayview, 474 U.S. 121

(permitting scheme to fill wetlands under Clean Water Act

Section 404); Hodel, 452 U.S. 264 (permitting scheme

under the Surface Mining Control and Reclamation Act).

Similarly, Congress’s enactment of ELIHPA did not effect

a taking. Therefore, no Fifth Amendment claim could

have accrued just by virtue of that legislative enactment.

The Government argues that cases such as Riverside

Bayview and Hodel are not applicable because they arose

in the real property context while a taking of monetary

property is at issue here.’ Brief for United States in

Opposition to Petition for Writ of Certiorari, at 17. But

why? Any differences between real and monetary property

should be irrelevant to examine when a takings claim

accrues for statute of limitations purposes. In addressing

substantive questions of takings liability the Court applies

the same underlying principles whether real or monetary

property is at issue. Concrete Pipe and Prods. v.

> The petitioners argue that this case is a real property matter. See

Petition for Writ of Certiorari at 28-29. NAHB does not take a position

on whether this is a monetary taking or a real property taking, but assert

that the Court has never made a distinction.

7

Construction Laborers Pension Trust, 508 U.S. 602

(1993), is instructive. An employer company withdrew

monies from a multiemployer pension trust fund. The

Multiemployer Pension Plan Amendments Act (MPPAA)

set up a scheme where an employer incurred “withdrawal

liability” in such circumstances. See id. at 609. Under the

MMPA if an employer withdraws funds it must re-pay that

amount, with a pegalty as calculated under the statute,

back into the plan. The “withdrawal liability” is assessed

by a notification and demand for payment. /d. at 610.

Concrete Pipe filed a Fifth Amendment takings claim to

challenge an assessment of withdrawal liability charged

against it, totaling $190,465.57.

The Court ultimately concluded that Concrete Pipe

suffered no Fifth Amendment taking. In reaching that

conclusion, Justice Souter’s majority opinion applied the

rulings of Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992), Penn Central Transp. Co. v. New York

City, 438 U.S. 104 (1978), Keystone Bituminous Coal

Ass'n v. DeBenedictis, 480 U.S. 470 (1987), Village of

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) and

Hadachek v. Sebastian, 239 U.S. 394 (1917)—all takings

cases decided in the real property context. See Concrete

Pipe, 508 U.S. at 643-645.4 When the Concrete Pipe

Court rejected the employers’ claim that the withdrawal

liability assessed against it rose to the level of a Lucas

* The converse is true as well. The Court has cited Concrete Pipe as

persuasive authority in the context of real property takings. In Dolan v.

City of Tigard, 512 U.S. 374 (1994), the Court concluded that conditions

attached to a land use permit were a taking where they were not “roughly

proportional” to the impacts of the proposed development project. In its

analysis, the Court remarked that it “approved the principle” in Concrete

Pipe that “ ‘a claimant’s parcel of property [cannot] first be divided into

what was taken and what was left’ to demonstrate a compensable taking.”

Dolan, 512 U.S. at 401 (citing Concrete Pipe, 508 U.S. at 644).

8

“total taking,” it applied the multi-factor Penn Central test

to analyze whether compensation for a partial taking was

due. Compare Penn Central, 438 U.S. at 124-25 (zoning

case setting forth the test for a taking as an “ad hoc

inquiry” balancing three factors: (1) the character of the

government’s action, (2) the regulation’s economic impact

on the property owner, and (3) the extent to which the

regulation interfered with the property owner’s reasonable

utvestment-backed expectations) with Concrete Pipe, 508

U.S. at 644-46 (no taking under Penn Central’s

framework).

Concrete Pipe is not unique. The Justices typically

turn to Penn Central and its progeny when analyzing

whether the government is liable for a Fifth Amendment

taking of monetary property. See e.g., Eastern Enterprises

v. Apfel, 524 U.S. 498, 540 (1998) (Kennedy, J.,

concurring in part and dissenting in part) (holdings of land

use takings case applied to health fund benefits for retired

miners); Phillips v. Washington Legal Found., 524 U.S.

156, 176 (1998) (Souter, J., dissenting) (employing Penn

Central analysis to interest income from client trust fund

accounts). Moreover, when land use agencies appear

before the Court to defend themselves against takings

liability, they commonly seek application of Concrete

Pipe’s principles. This term, regulators urged the Court to

apply Concrete Pipe in a manner that would find no taking

under a temporary development moratorium. See Brief for

Respondents, Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency at 32 (No. 00-1167)

(arguing that Concrete Pipe governs the Court’s approach

to the takings “denominator” problem). In prior years,

agencies defending against takings claims have cited

Concrete Pipe to avoid paying compensation from the

9

application of wetlands regulations,* coastal regulations

that limited development in endangered species habitat,°

and to determine whether a takings claim was ripe where

the property owner failed to transfer development rights.’

Finally, lower courts® and scholars’ freely cite the Court’s

monetary takings cases as persuasive authority in real

property takings cases, and vice versa.

* Brief for Respondents at 25, Palazzolo v. Rhode Island (No. 99-2047)

(citing Concrete Pipe to determine if takings inquiry is properly

addressed to entire property or portion thereof).

° Brief for the Petitioner at 35, City of Monterey v. Del Monte Dunes at

Monterey, Ltd. (No. 97-1235) (citing Concrete Pipe on issue of distinct

investment-backed expectations of pension plan participants).

"Brief for Respondent at 33, 34, 40, Switum v. Tahoe Regional Planning

Agency (No. 96-243) (quoting Concrete Pipe for approach employed in

determining economic impact of regulation on property).

* E.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1177 (Fed.

Cir. 1994) (citing Concrete Pipe when discussing “investment-backed

expectations”); District Intown Properties Limited Properties v. District

of Columbia, 198 F.3d 874, 884 (D.C. Cir. 1999) (citing Concrete Pipe in

an analysis of “reasonable expectations”); Villas of Lake Jackson, Ltd. V.

Leon County, 906 F.Supp 1509, 1516-17 (N.D. Fl 1995) (citing Concrete

Pipe when analyzing the land owner’s “bundle of rights); City of

Annapolis v. Waterman, 745 A.2d 1000, 1024 (Md. App. 2000) (citing

Concrete Pipe in determining whether requiring a developer to set aside

recreational space was a taking).

* E.g., Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev.

1, n. 484 (1997) (“Although Concrete Pipe involves the question of

whether purely financial interests are subdivisible for purposes of takings

analysis, its unequivocal language leaves little doubt that the principle

applies to land as well.”); James E. Holloway, Donald C. Guy, Smart

Growth and Limits on Government Powers: Effecting Nature, Markets

and the Quality of Life Under the Takings and Other Provisions, 9 Dick.

J. Env. L. Pol. 421, 453-54 (2001) (citing Concrete Pipe in discussion of

how smart growth regulations can lead to the taking of a land owner's

real property); Douglas L. Grant, Western Water Rights and the Public

Trust Doctrine: Some Realism About the Takings Issue, 27 Ariz. St. L.J.

423 (1995) (citing Concrete Pipe in article pertaining to the public trust

doctrine and the takings clause).

10

It is interesting that here the Government would

distinguish real property takings from monetary takings for

purposes of 28 U.S.C. § 2501 accrual. After all, as an

amicus the United States re itinely relies on Concrete Pipe

in real property takings cases."®

To conclude, this Court, parties arguing before this

Court, and the lower courts, all apply the same factors and

tests for takings liability whether real or monetary property

is at stake. Accordingly, amicus NAHB submits that the

Court must apply the principles from its real property

cases to decide if a takings claim under ELIHPA accrued

when Congress passed that statute. As shown below, the

answer to that question is “no.”

B. The Federal Circuit’s Decision Below Cannot be

Reconciled with Palazzolo or Williamson County.

The Federal Circuit’s ruling below—that takings

claims based on the effect of ELIHPA accrued when that

statute was passed in 1988—cannot be reconciled with this

Court’s opinions in Williamson County Regional Planning

Comm'n v. Hamilton Bank 473 U.S. 172 (1985), or

Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001).

Palazzolo concerned restrictions on land development

as the result of the application of state wetlands

regulations. Rhode _ Island’s Coastal Resources

" See, e.g., Brief for the United States as Amicus Curiae Supporting

Petitioner in Part at 17, 24, City of Monterey v. Del Monte Dunes at

Monterey, Lid (No. 97-1235) (citing Concrete Pipe persuasively); Brief

for the United States as Amicus Curiae in Support of Respondent, at 17,

18, 19, Suitum v. Tahoe Regional Planning Agency, (No. 96-243) (citing

Concrete Pipe persuasively).

—_

1]

Management Council argued that Mr. Palazzolo was

precluded from bringing a Fifth Amendment takings claim

because he succeeded to legal ownership of the property

after the Council issued regulations that limited

development in coastal wetlands. In other words, the state

argued that someone who acquired property post-

enactment “is deemed to have notice of an earlier-enacted

restriction and is barred from claiming that it effects a

taking.” Palazzolo, 121 S. Ct. at 2462. The Court

disagreed with the state’s position and found the takings

claim “was not barred by the mere fact that title was

acquired after the effective date of the state-imposed

restriction.” Jd. at 2464. Under the state’s rule, “the post

enactment transfer of title would absolve the State of its

obligation to defend any action restricting land use, no

matter how extreme or unreasonable. A State would be

allowed, in effect, to put an expiration date on the Takings

Clause.” Jd. at 2453. This Court rejected that rule.

The Federal Circuit’s ruling below is in tension with

Palazzolo. Under the Federal Circuit’s analysis, if a

landowner either owned real property or acquired it more

than six years after the enactment of a land use statute, a

takings claim would be barred. This, however, would put

a six-year “expiration date on the Takings Clause,” no

matter “how extreme or unreasonable” the government’s

statute. '' Jd. at 2453, 2464.

'' Furthermore, Fifth Amendment takings cases frequently arise where

property owners sue the U.S. Army Corps of Engineers seeking

compensation for the Corps’ application of regulations to discharge

dredged or fill material into navigable waters, promulgated under Section

404 of the Clean Water Act of 1972, Pub. L. No. 92-500, § 2, 86 Stat. 884

(codified in 33 U.S.C. § 1344). Ali of these takings cases, based on

effects of the Section 404 program, were governed by the same statute of

limitations at issue in the case at bench—namely, the six-year statute of

limitations governing suits against the federal government brought in the

12

The decision below also conflicts with Williamson

County, the Court’s seminal ripeness case for takings

claims. A takings claim is not ripe unless “the government

entity charged with implementing the regulations has

reached a final decision regarding the application of the

regulations to the property at issue.” Williamson County,

473 U.S. at 186. “The central question in resolving the

ripeness issue, under Williamson County and other relevant

decisions, is whether petitioner obtained a final decision

from the Council determining the permitted use for the

land.” Palazzolo, 121 S. Ct. at 2458. Here, the ability of

an FmHA borrower to prepay (or not) could not be known

simply by ELIHPA’s enactment in 1988. The statute

established a process whereby some borrowers would, in

fact, be allowed to pre-pay their loans." No property

owner would have a ripe takings claim under Williamson

County without first resorting to ELIHPA’s process to

Court of Federal Claims, 28 U.S.C. § 2501. Under the reasoning of the

Federal Circuit’s decision below, the following cases would have been

time-barred because the impacted property owners initiated litigation

more than six years after Congress enacted the Clean Water Act:

Good v. United States., 189 F.3d 1355 (Fed Cir. 1999) (takings case

brought approximately 25 years after enactment of CWA); Forest

Properties Inc. v. United States, 177 F.3d 1360 (Fed. Cir. 1999) (takings

case brought approximately 25 years after enactment of CWA); Howard

W. Heck and Assoc., Inc. v. United States, 134 F.3d 1468 (Fed. Cir. 1998)

(takings case brought approximately 25 years after enactment of CWA);

Broadwater Farms Joint Venture v. United States, 121 F.3d 727 (Fed.

Cir. 1997) (takings case brought approximately 24 years after enactment

of CWA); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed.

Cir. 1994) (takings case brought approximately 18 years after enactment

of CWA); Florida Rock Industries, Inc. v. United States, 18 F.3d 1560

(Fed. Cir. 1994) (takings case brought approximately 13 years after

enactment of CWA); Tabb Lakes, Lid. v. United States, 10 F.3d 796

(Fed. Cir. 1993) (takings case brought approximately 10 years after

enactment of CWA).

" See supra note 2.

13

receive a final decision on the viability of pre-payment. It

was therefore incorrect for the Federal Circuit to rule that

takings claims started to accrue upon ELIHPA’s passage,

because no claim could have yet been ripe at that point in

time.

The Federal Circuit’s decision is illogical in light of

Palazzolo and Williamson County. If it were allowed to

stand, the growing number of federal and state courts that

rely on Palazzolo and Williamson County would be forced

to make sense of a confusing inconsistency. In a climate

where the regulation of land use is the rule, many property

owners find themselves in the unfortunate position of

bringing takings claims against regulatory agencies.

Against that backdrop, this Court must ensure that

fundamental takings issues concerning ripeness, post-

enactment acquisition, and statute of limitations accrual

are all consistent.

14

CONCLUSION

For these reasons, the National Association of Home

Builders urges this Court to reverse the opinion of the

Federal Circuit and clarify that a takings claim does not

accrue simply upon legislative enactment of a statute.

DATED: February 13, 2002

Respectfully submitted,

Duane Desiderio

Thomas Jon Ward

National Association

of Home Builders