Amicus Curiae Brief — Lingle v. Chevron USA Inc.

In The

Supreme Court of the Anited States

9

LINDA LINGLE, Governor of Hawaii, et al.,

Petitioners,

v.

CHEVRON U.S.A. INC.,

Respondent.

¢

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

*

BRIEF OF THE AMERICAN PLANNING

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

0

EDWARD J. SULLIVAN*

CARRIE A. RICHTER

GARVEY SCHUBERT BARER

121 SW Morrison St. #1100

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

a 5 8

=”. >

ORS ‘3 7

fue

a

QUESTIONS PRESENTED

Ff... pee 3 1. Whether the Just Compensation Clause authorizes a

„ 3 28 meee court to invalidate state economic legislation on its face

FTT. aa Sy eH x and enjoin enforcement of the law on the basis that the

„ he | sae | 8 legislation does not substantially advance a legitimate

. 5 state interest, without regard to whether the challenged

e 5 5 a law diminishes the economic value or usefulness of any

V . 2 property.

e 5 2. Whether a court, in determining under the Just

FV $3 Compensation Clause whether state economic legislation

oe, 8 ‘a4 substantially advances a legitimate state interest, should

| 5 apply a deferential standard of review equivalent to that

traditionally applied to economic legislation under the Due

Process and Equal Protection Clauses, or may instead

substitute its judgment for that of the legislature by

determining de novo, by a preponderance of the evidence

at trial, whether the legislation will be effective in achiev-

ing its goals.

TABLE OF CONTENTS

Page

Interest of Amicus Curiae . . . .. . . . . . 1

e c..sccccsssssssessssesssstensinseteetnneteena 2

1 ͥ . 3

I. Whether legislation substantially advances a

II.

III.

legitimate state interest is not a question

within the purview of the Takings Clause

A. Neither the language nor the purpose of

the Takings Clause support the use of the

substantially advances teste.

B. No explanation has been forthcoming as to

how the substantially advances test fits

within either the language or purpose of

the Takings Clause . ...... . . . . ....

C. The historical confusion between due

process and regulatory takings led to the

mistaken application of the substantially

advances test of the former into the latter

D. Nollan’s essential nexus test applies to

physical exactions, and is not dependent

on the substantially advances test.............

The invalidation remedy that necessarily

follows from a finding that a law does not sub-

stantially advance a legitimate state interest

contradicts the express, self-executing com-

pensation remedy of the Takings Clause

Incorporating the substantially advances test

into the Takings Clause in order to apply in-

termediate scrutiny to judge the wisdom and

efficacy of government regulation undermines

the legislative process and compromises or-

47 é

15

18

TABLE OF CONTENTS - Continued

Page

A. The legislative and planning processes fol-

lowed across the country, particularly at

the local level, are the epitome of partici-

patory democracy and deserve to be ac-

corded substantial deference by the Court 21

B. Judicial second-guessing destroys the pub-

lic effort that the planning process embod-

— 23

r F- ,. 24

iv

TABLE OF AUTHORITIES

Page

CASES

Agins v. City of Tiburon, 447 U.S. 255 (1980)... 1, 4, 6, 8, 15

Armstrong v. United States, 364 U.S. 40 (1960)........... 5, 16

Banks v. City of Whitehall, 344 F.3d 550 (6th Cir.

a 13

Board Machine, Inc. v. U.S., 49 Fed. Cl. 325 (2001). 19

City of Monterey v. Del Monte Dunes at Monterey,

BOE, Gp ae Ge Ge cnccremannertenemmnmnne 7

Dolan v. City of Tigard, 512 U.S. 374 (1994).......... 2,17, 24

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)... 8, 18, 20

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304

— . passim

GJR Investments, Inc. v. County of Escambia,132

1. een 10

Goldblatt v. Town of Hempstead, 369 U.S. 590

—— ͤ—— —ͤ—ͤ—ñ—— 12

Graham v. Connor, 490 U.S. 386 (1989) 13

John v. City of Houston, 214 F.3d 573 (5th Cir.

—. .. . i 13

Hawai'i Housing Authority u. Midkiff, 467 U.S. 229

— . 14

Kelo v. City of New London, 268 Conn. 1, 843 A. 2d

500 (2004), cert. granted, 125 S.Ct. 27, 73 USLW

3178, 73 USLW 3204 (Sep. 28, 2004) (NO. 04-

Ce RE BP. 14

TABLE OF AUTHORITIES - Continued

Keystone Bituminous Coal Ass’n v. DeBenedictis,

— ¶ ͤ W 7 8

Landgate, Inc. v. California Coastal Commission,

17 Cal.4th 1006, 953 P.2d 1188, 73 Cal.Rptr.2d

841, cert. denied, 525 U.S. 876 (1998) 19

Lawton v. Steele, 152 U.S. 133 (1894) 10, 12

Lucas v. South Carolina Coastal Council, 505 U.S.

— . —— — —T—ẽ — 2, 5

Miller & Son Paving, Inc. u. Plumstead Twp., 717

A.2d 483 (Pa.1998), cert. denied, 525 U.S. 1121

Nectow v. City of Cambridge, 277 U.S. 183 (1928) .. 6, 7, 8, 18

Nollan v. California Coastal Commission, 483 U.S.

DD ..... 15, 16, 17

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ................. 2

Penn Central Transportation Co. v. New York City,

. —. 5, 7, 20

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

Pheasant Bridge Corp. v. Township of Warren, 169

N.J. 282, 777 A.2d 334 (2001), cert. denied, 535

Dr.,, ⅛ i;. r ² qe 19

Sea Cabins on Ocean IV Homeowners Ass n, Inc. v.

City of North Myrtle Beach, 345 S.C. 418, 548

rr 19

Suitum v. Tahoe Regional Planning Agency, 520

. . 2

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302 (2003).... 2, 6, 22

vi

TABLE OF AUTHORITIES - Continued

Whitley v. Albers, 475 U.S. 312 (1986) . 13

Williamson County Regional Planning Commission

v. Hamilton Bank of Johnson City, 473 U.S. 172

— 1. 10, 12

OTHER AUTHORITIES

American Institute of Certified Planners Code of

Ethics and Professional Conduct (Adopted Octo-

ber 1978, amended October 1991) . 23

Edward J. Sullivan, Emperors and Clothes: The

Genealogy and Operation of the Agins’ Tests, 33

Dr ̃ ̃Ä .. •—ʃ ee 10

James W. Ely, Jr., The Fuller Court and Takings

Jurisprudence, 1996 J. Sup. Ct. History, vol. II. 11

John D. Echeverria, Taking and Errors, 51

rr 222. 7˙—Ä——— o - 00] 19

J. Harvie Wilkinson, III, Is There a Distinctive

Conservative Jurisprudence? 73 U. Colo. L. Rev.

Be — —— —-—¼ 23

Julian C. Juergensmeyer and Thomas E. Roberts,

Land Use Planning and Development Regulation

— 10, 13

Policy Guide on Takings, American Planning

e — 17

Robert Brauneis, The Foundation of Our Regula-

tory Takings” Jurisprudence: The Myth and

Meaning of Justice Holmes’s Opinion in Pennsyl-

vania Coal v. Mahon, 106 Yale L.J. 613 (1996) 11

1

INTEREST OF AMICUS CURIAE'

The American Planning Association is a nonprofit

public interest and research organization, founded in

1978 exclusively for charitable, educational, literary, and

scientific research purposes to advance the art and science

of planning physical, economic and social - at the local,

regional, state, and national levels. APA’s mission is to

encourage planning that will contribute to public well-

being by developing communities and environments that

more effectively meet the present and future needs of

people and society.

APA resulted from a merger between the American

Institute of Planners, founded in 1917, and the American

Society of Planning Officials, established in 1934. The

organization has 46 regional chapters and 19 divisions

devoted to specialized planning interests. APA represents

more than 34,000 practicing planners, officials, and

citizens involved with urban and rural planning issues.

Sixty-five percent of APA’s members work for state and

local government agencies. These members are involved,

on a day-to-day basis with the public, in formulating

planning policies and preparing land-use regulations.

The American Planning Association has filed Amicus

briefs in a number of cases involving the Takings Clause:

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

County Regional Planning Com’n v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985); First English Evangelical

Counsel for the parties did not author this brief in whole or in

part. No person or entity other than the amicus, its members, and its

counsel made a monetary contribution to the preparation or submission

of this brief. The parties have consented to the filing of amicus briefs.

2

Lutheran Church of Glendale v. Los Angeles County, 482

U.S. 304 (1987); 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); Palazzolo v. Rhode Island, 533 U.S. 606

(2001); and Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 535 U.S. 302 (2002).

This case raises critical issues of national importance

for state and local governments, and planners who work

both in the public and private sectors, as well as the

general public they serve. ——

9

SUMMARY OF ARGUMENT

Courts should not substitute their views of the wis-

dom or efficiency of state economic legislation under the

guise of the Takings Clause.

The Takings Clause conveys a straightforward mes-

sage: when government physically takes property, it must

pay. Yet, no property of Respondent was physically taken

by the statute.

Regulations that destroy all economic value of prop-

erty also may fall within the compensation command of

the Takings Clause based on the principle that such a

denial is the functional equivalent of a confiscation. Yet,

the statute did not deprive Respondent’s property of

economically viable use. N

Principle does not support moving the Fourteenth

Amendment's substantially advances test into the Takings

Clause of the Fifth Amendment. The question of the

3

validity of government action is not a part of the takings

inquiry, and it ought not become so based on the historical

confusion between due process and takings.

The adoption of legislation, particularly at the local

government level, aided by the planning process, involves

the participation of all segments of the community work-

ing to define the public interest. Allowing judges to second

guess legislation will undermine the public’s role in the

democratic process. Intermediate judicial scrutiny is

neither needed nor justified to protect those who are well

represented in legislative halls.

*

ARGUMENT

I. Whether legislation substantially advances a

legitimate state interest is not a question

within the purview of the Takings Clause.

A. Neither the language nor the purpose of

the Takings Clause supports the use of the

substantially advances test.

The Ninth Circuit’s decision invalidating Hawaii's

statute on the grounds that it represents unwise and

ineffective legislation is wrongly based on the Takings

Clause of the Fifth Amendment. The Takings Clause

“nor shall property be taken for a public use without just

compensation” — on its face limits the eminent domain

power, not the police power. The Court has subjected the

police power to the Takings Clause, but only in cases

where regulations have an economic impact that is tanta-

mount to a confiscation of property. Except insofar as the

exercise of the power of eminent domain must be for a

public use, ill-advised governmental action is not within

4

the purview the Takings Clause. As Chief Justice

Rehnquist has said:

This basic understanding of the [Fifth] Amend-

ment makes clear that it is designed not to limit

the governmental interference with property

rights per se, but rather to secure compensation

in the event of an otherwise proper interference

amounting to a taking.

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 314-315 (1987).

The substantially advances test, drawn from Agins v.

City of Tiburon, 447 U.S. 255 (1980), and used by the

Ninth Circuit in the case at bar, assesses the validity of

government action pursuant to the police power. This

question, however, precedes the takings question. If a

court finds a regulation does not substantially advance a

legitimate state interest, the case is over and the regula-

tion is invalidated. If a court finds the law does substan-

tially advance a legitimate state interest, then the court

may move to the question of whether that law has gone too

far in the imposition of economic harm on a property

owner and thus been converted into a taking. The sub-

stantially advances test, already answered, should not be

reexamined as part of the takings inquiry.

The plain language of the Takings Clause cannot

support a requirement that a law substantially advance a

legitimate state interest. The mandate is straightforward.

If government takes property for a public use, it must pay.

While deciding what constitutes a “taking” or a “public

use” or qualifies as “property” or suffices as “just compen-

sation” may be difficult, they are questions that must be

asked. What is not covered, and no reading, however

5

tortured, can supply it, is whether the government is doing

a good job in legislating to promote the general welfare.

While the Court “has ... not read [the Takings

Clause] literally,” Penn Central Transportation Co. v. New

York City, 438 U.S. 104, 142 (1978) (Rehnquist, J., dissent-

ing), it has gone beyond the language of the Amendment to

transmute regulations into takings in only the narrow

circumstance where a regulation is the functional equiva-

lent of a confiscation. Thus, while the operative language

of the clause connotes a physical invasion or seizure,

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

an otherwise valid regulation can be converted into a

taking if it goes “too far.” Id. at 415. In language perhaps

more familiar to the law, such a regulation constitutes a

“constructive taking” based on the reasoning that a “total

deprivation of beneficial use is, from the landowner’s point

of view, the equivalent of a physical appropriation.” Lucas

v. South Carolina Coastal Council, 505 U.S. 1003, 1017

(1992).

In contrast to the Agins supposed substantially

advances takings test, Pennsylvania Coal’s regulatory

takings equation is a principled interpretation of the

Takings Clause. Over the years, the Court has steadfastly

viewed the purpose of the Fifth Amendment’s Takings

Clause to prevent government from forcing one property

owner “alone [to] bear public burdens which, in all fairness

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

Armstrong v. United States, 364 U.S. 40, 49 (1960). For the

greater good, the property owner yields the land but his

loss is mitigated by the payment of compensation and the

burden of paying is shared by the public by use of public

funds. As explained in Pennsylvania Coal, the Takings

Clause prevents government from “forgetting that a strong

6

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.” 262 U.S. at

416.

A concern for excessive economic impact does not

enter into the antecedent question of whether a law

substantially advances a legitimate state interest. That

question is applicable to all legislation and is grounded on

the proposition that there are some things government

may not do under any circumstance. The Takings Clause

only comes into play where an otherwise valid measure is

alleged to have gone too far and extracted too much. It is

at this point that the “fairness and justice,” which are the

guideposts for the Takings Clause, come into play. Tahoe-

Sierra Preservation Council, Inc. v. Tahoe Regional Plan-

ning Agency, 535 U.S. 302, 334 (2003).

B. No explanation has been forthcoming as to

how the substantially advances test fits

within either the language or purpose of

the Takings Clause.

The entry of the “substantially advance” language into

the takings lexicon was either a mistake or a momentous

change in takings jurisprudence that was announced

without fanfare or explanation. The former is the more

likely explanation. Agins v. City of Tiburon, 447 U.S. 255

(1980), drew the substantially advances test from Neciow

v. City of Cambridge, 277 U.S. 183 (1928), a substantive

due process case. The Court in Agins said:

While the declaration in Agins is commonly viewed as the source

of the supposed incorporation of the Fourteenth Amendment test into

(Continued on following page)

7

The application of a general zoning law to par-

ticular property effects a taking if the ordinance

does not substantially advance legitimate state

interests, see Nectow v. Cambridge, or de-

nies an owner economically viable use of his

land, see Penn Central.... The determination

that governmental action constitutes a taking is,

in essence, a determination that the public at

large, rather than a single owner, must bear the

burden of an exercise of state power in the public

interest.

447 U.S. at 260.

Glaringly absent from the above quoted language is

an explanation that links the Nectow rule in the first

clause of the first sentence, that a valid exercise of the

police power must substantially advance a legitimate state

interest, to the ultimate goal set out in the second sen-

tence of determining whether it is fair to burden a single

landowner with the cost of an otherwise valid police power

measure.

No principled explanation has been offered as to how

a law that does not substantially advance a legitimate

state interest can be a taking within the language or

purpose of the Takings Clause. On numerous occasions the

Court has stated that a regulation that does not substan-

tially advance a legitimate state interest is a taking, but

as the Court observed in City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687 (1999), it has yet to

offer “a thorough explanation of the nature or applicability

of the requirement that a regulation substantially advance

the Fifth Amendment, two years earlier, the Court used “substantially

advances” language in Penn Central.

8

legitimate public interests outside the context of required

dedications or exactions.” Jd. at 704. Lower courts have

likewise failed to explain how the test fits within the Fifth

Amendment. This lack of an explanation is understand-

able since, outside the context of physical exactions, a

regulation that does not substantially advance a legiti-

mate state interest cannot be viewed as the functional

equivalent of a physical appropriation, the touchstone of

the regulatory takings doctrine.

In most of the instances when the Court_has ex-

pressed the Nectow or Agins substantially advances

language as a takings test, it has done so in dicta. On the

few occasions when the Court has applied the test and

said that a particular regulation is not a taking because it

passes the substantially advances test, it has not only not

paused to discuss why it is relevant to ask that question

but in those cases, the landowner’s so-called takings claim

was in fact an effort to secure an invalidation of the law in

question, not to seek compensation. In Keystone Bitumi-

nous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987), the

Court declared the Pennsylvania prohibition of mining so

as to cause surface subsidence substantially advanced a

state interest and then moved on to the question of eco-

nomic impact. The answer to the former question was

virtually a given, and, while four justices dissented, none

took issue with this conclusion. The serious question of the

case for the majority and the dissent was whether the

Five members of the Court have expressed serious reservations

about the test, see Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)

(Kennedy, J., concurring in the judgment but dissenting in part, and,

Breyer, J., joined by Stevens, J., Ginsburg, J., and Souter, J., dissenting.

9

statute went too far in the economic harm it imposed on

owners of the mineral estates.

In Del Monte Dunes, the Court upheld the trial judge’s

decision to allow the jury to determine the city’s takings’

liability, which included ascertaining whether the city’s

permit denials substantially advanced the stated purposes

of its regulations. Since the city itself had proposed the

jury instructions that included the Agins question, the

Court “decline[d] the suggestions of amici” to address the

issue. 526 U.S. at 704. These uses of the substantially

advances test hardly constitute endorsements of the test

since its application was not contested in Keystone and

was assumed in Del Monte Dunes.

It is not a strong endorsement of Agins as a takings

test to say that the courts have repeated it often. Yet, no

other reason is forthcoming. Repeated inconsequential

reiterations should not be used to knowingly validate a

test that stems from an erroneous reading of authority and

cannot be tied to the language or purposes of the Takings

Clause. Merely wishing to have intermediate scrutiny

applied to regulations of property is also insufficient.

C. The historical confusion between due proc-

ess and regulatory takings led to the mis-

taken application of the substantially

advances test of the former into the latter.

Confusion has been a constant companion of the

regulatory takings doctrine. This confusion can be traced

to the doctrine’s origins, which is usually said to have been

the 1922 Pennsylvania Coal v. Mahon decision. 260 U.S.

393 (1922). With the advantage of hindsight we can look

back and say that the regulatory takings doctrine originated

10

in the 1922 Pennsylvania Coal decision, but at the time

the decision was handed down it was not clear that any-

thing new had been done. When the Court spoke of regula-

tions as takings in Pennsylvania Coal, it was difficult to

distinguish that idea from then prevailing views of sub-

stantive due process.

In the latter part of the Nineteenth Century and early

Twentieth Century, the jurisprudence of the Court was

that the validity of a police power regulation depended on

whether the measure promoted the public interest by a

means reasonably necessary to accomplish the purpose

and was “not unduly oppressive upon individuals.” Lawton

v. Steele, 152 U.S. 133, 137 (1894). Pennsylvania Coal’2

holding that otherwise valid regulations that went “too

far” were takings in effect restated the Lawton due process

“unduly onerous” test. The result has been a confusion of

tongues and minds, as courts have spoken of “due process

takings.” See Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S.

172, 199 (1985); GJR Investments, Inc. v. County of Es-

cambia, 132 F.3d 1359, 1364 (11th Cir. 1998).

Certain features of the Pennsylvania Coal opinion

caused or aided this confusion. The state by definition

must be a party to a takings claim yet the case was be-

tween private parties. The Takings Clause has a self-

executing compensation remedy, but invalidation, not

compensation, was the remedy awarded. In other words

For a complete historical analysis, see Edward J. Sullivan,

Emperors and Clothes: The Genealogy and Operation of the Agins’

Tests, 33 Urb. Law. 343, 345-348 (2001). See also Julian C. Juer-

gensmeyer and Thomas E. Roberts, Land Use Planning and Develop-

ment Regulation Law § 10.9 (Thomson-West 2003).

11 -

what happened in the case duplicates what would have

happened had the Court not mentioned the Takings

Clause and relied instead on the Fourteenth Amendment’s

Due Process Clause. So great was the confusion that it

was not known for decades whether the remedy from a

regulatory taking was a Fourteenth Amendment declara-

tion of invalidity coupled with an injunction or a Fifth

Amendment taking requiring the assessment of compensa-

tion due. The historically accurate reading is merely an

academic point today.’ But, the fact of the confusion is of

great importance because it goes to the heart of the error

made by the Ninth Circuit in this case.

The confusion created by Pennsylvania Coal between

due process and takings concerned the excessive impact of

a regulation, not whether the regulation substantially

advanced a legitimate state interest. For Justice Holmes

the legitimacy of the action was a given:

We assume, of course, that the statute was

passed upon the conviction that an exigency ex-

isted that would warrant it, and we assume that

an exigency exists that would warrant the exer-

cise of eminent domain. But the question at bot-

tom is upon whom the loss of the changes desired

should fall.

Pennsylvania Coal, 260 U.S. at 416.

* Professor James Ely notes that the Court had intimated that

regulations could become takings before 1922. See James W. Ely, Ir,

The Fuller Court and Takings Jurisprudence, 1996 J. Sup.Ct. History,

vol. II at 120. Then again, Professor Brauneis notes problems with

viewing Pennsylvania Coal itself as a takings case. See Robert Brau-

neis, The Foundation of Our “Regulatory Takings” Jurisprudence: The

Myth and Meaning of Justice Holmes’s Opinion in Pennsylvania Coal v.

Mahon, 106 Yale L.J. 613 (1996).

12

The confusion, instead, dealt with the third “unduly

onerous” prong, which came to be confused with the “too

far” test. Consequently, some courts viewed Pennsylvania

Coal as a due process case, believing that Justice Holmes

spoke merely “symbolically” in using takings language or

as this Court said in Williamson County, he may have

spoken “loosely.” 472 U.S. at 198.

In Goldblatt v. Town of Hempstead, 369 U.S. 590

(1962), the Court distinguished between takings and due

process. The Court there held that a ban on excavation as

applied to a sand and gravel business was not a taking

because there was no showing of a reduction in the value

of the property. Id. at 594. After reaching this conclusion,

the Court looked at the validity of the ban, concluding that

it did substantially advance a legitimate state interest. In

reaching this conclusion this Court did not mention the

Takings Clause but the Court did rely on the leading

substantive due process case of Lawton v. Steele, 152 U.S.

155 (1894). Goldblatt, 369 U.S. at 594. Despite Goldblatt,

the confusion reemerged in Agins.

First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, 482 U.S. 304 (1987), par-

tially resolved the confusion by settling the debate as to

whether claims of excessive economic impact were action-

able under the Takings Clause. The Court there held that

regulations that went “too far,” or, put another way, were

excessive in their impact upon the affected property owner,

were real, as opposed to symbolic, takings. Thus, a judicial

finding of a taking by regulation triggered the “self-

executing compensation remedy” of the Takings Clause.

First English, Id at 315.

13

A lingering question as to claims of severe economic

impact from regulations is whether the Takings Clause is

the exclusive home to such claims. The question is an-

swered by the doctrine that where there is an explicit

textual source in the constitution it must be used to

determine liability rather than generalized notions of

substantive due process. See Graham v. Connor, 490 U.S.

386 (1989) (claims of excessive force during arrest must be

brought under the Fourth Amendment) and Whitley v.

Albers, 475 U.S. 312 (1986) (injuries suffered in a prison

riot must be heard under the Eighth Amendment). Though

the Fifth Amendment is not an explicit textual source for

compensation from excessive regulations, the reasoning of

Graham and Whitely, as well as Pennsylvania Coal and

First English call for application of the rule.

While this Court has not specifically addressed

whether the Fifth Amendment Takings Clause qualifies as

sufficiently explicit under the Graham-Whitley doctrine,

the functional equivalence of regulatory takings to physi-

cal appropriations should yield that conclusion. And

several circuit courts have so held. See Banks v. City of

Whitehall, 344 F.3d 550 (6th Cir. 2003); John v. City of

Houston, 214 F.3d 573, 583-583 (5th Cir. 2000). There is no

merit in having two independent yet virtually identical

causes of actions. Thus, allegations of excessive economic

impact should be exclusively within the province of the

Fifth Amendment’s Takings Clause. But, that does not

mean that allegations of arbitrary legislation likewise

should be subsumed by the Takings Clause. See Julian C.

Juergensmeyer and Thomas E. Roberts, Land Use Plan-

ning and Development Regulation Law § 10.12 C (Thom-

son-West 2003).

14

While the Graham-Whitely issue is not directly before

the Court in this case, it is important to recognize its

relevance to clarifying the distinction between regulatory

takings and due process. The thrust of those cases, along

with Pennsylvania Coal and First English, is that at the

most the Due Process Clause can provide a check on the

validity of legislation, while the Takings Clause deals with

the question of whether otherwise valid government

actions either confiscate or effectively confiscate property

so as to become takings.

The strand of confusion that remains is the one in this

case and it is of more recent origin, dating back only to the

1980 Agins case. The Court can remove that confusion in

this case by applying the principled standard of the

Takings Clause that has heretofore guided its decisions:

The Fifth Amendment regulatory takings claim assumes

the legitimacy of the regulation but demands that where

the effect of the regulation is so great that it is the func-

tional equivalent of a physical appropriation the land-

owner must be compensated.*

* Legitimacy of the exercise of eminent domain must of course be

shown to meet the Public Use clause. That issue and such public use

cases like Hawai'i Housing Authority v. Midkiff, 467 U.S. 229 (1984)

and Kelo v. City of New London, 268 Conn. 1, 843 A.2d 500 (2004), cert.

granted, 125 S.Ct. 27, 73 USLW 3178, 73 USLW 3204 (Sep. 28, 2004)

(NO. 04-108) are different from regulatory takings actions in that they

check unlawful government action rather than compensate for exces-

sive regulation.

15

D. Nollan’s essential nexus test applies to

physical exactions, and is not dependent on

the substantially advances test.

In Nollan v. California Coastal Commission, 483 U.S.

825 (1987), the Court applied the “substantially advances”

test in the context of a physical exaction. The Court

purportedly used the Agins test to find a taking but,

though superficially applicable to the facts of the case, the

Agins formulation was irrelevant to the holding reached in

the case. In Nollan, when the owners of a beachfront lot

sought permission to build a larger house, the state

coastal commission conditioned the permit on the granting

of an easement to allow the public to walk along the

beachfront side of the lot. The Court had no quarrel with

the legitimacy of the state-asserted interests (to protect

the public’s ability to see the beach from the street, to

prevent congestion on the beach, and to overcome psycho-

logical barriers to the use of the beach resulting from

increased shoreline development), but the Court was not

convinced that the required lateral access easement along

the beach front would promote them.

While this Court in Nollan found that the interests

asserted by the state would not have been substantially

advanced by the easement sought, the Court’s concern was

the state’s justification for singling out the Nollans to

contribute land for the public use, which the Court found

wanting. The lack of a sufficient nexus between what the

Nollans proposed to do and what the state was asking in

return led the Court to conclude that the state’s problems

were not of the Nollans’ making. If California wanted an

easement, the Court said it would have to pay for it. This

was the heart of the opinion. What was important was not

whether the law substantially advanced a legitimate state

16

interest but whether the government was attempting to

force the property owners “alone bear public burdens

which, in all fairness and justice, should be borne by the

public as a whole.” Armstrong v. United States, 364 U.S.

40, 49 (1960).

Although the regulation at issue in Nollan did not

substantially advance a legitimate state interest, the

question did not need to be asked in order to decide

whether a taking had occurred. While the means and ends

did not link up in Nollan, imagine what would have

happened had the state “come clean” so to speak, and

simply admitted that it wanted the easement to aid public

passage on the beach. Obtaining an easement unques-

tionably would have substantially advanced a legitimate

state interest, and thus not run afoul of the Agins test. No

one, however, would contend that it therefore was not a

taking. Yet, that is where Agins leads.

Nollan does not deal with issues of regulatory takings

but rather establishes the essential nexus test for physical

exactions. When the state conditions development permis-

sion on a landowner dedicating property to public use it

may do so without paying compensation only if the dedi-

cated land is “reasonably necessary,” Nollan, 483 U.S. at

834, to prevent or counteract anticipated public effects of

the landowner’s actions. The only difficulty with Nollan is

that asking the wrong question runs the risk of unfair

results in that it does not answer the question of who

should bear the burden in question. The corrective step

needed is to recognize that the use of the word “substan-

tially” was unnecessary to the essential nexus test. A land

exaction may be required because of its use or because of

its location. While acquiring the land by either method

substantially advances a legitimate interest, compulsory

17

dedication should only be imposed on those whose use is

related to the interest the state is promoting. Those who

own land the state happens to need but who are not

contributors to or involved in the project or program that

creates the need should be compensated.

In Dolan v. City of Tigard, 512 U.S. 374 (1994), the

Court added a rough proportionality requirement to

physical exactions. In Dolan, the Court remanded a case to

the state court requiring the city to show that its demand

for land for a greenway and pedestrian pathway was

roughly proportional to the new burdens that would be

placed on the city by the landowner’s increased develop-

ment.

The Nollan and Dolan requirements, that government

carry the burden of justifying the need for exacting land,

are based directly on the language of the Takings Clause.

Physical takings of land must be compensated unless the

state can show that the exaction is a legitimate condition

of development permission. Planners have incorporated

these rules into the planning process. A year after the

Dolan decision, Amicus American Planning Association

incorporated the principle of fact-based decision-making in

its 1995 Policy Guide on Takings.’ The Policy Guide

advises planners to establish a sound basis for land use

and environmental regulations through comprehensive

planning and background studies. The Policy Guide states

that “a thoughtful comprehensive plan or program that

sets forth overall community goals and objectives and

which establishes a rational basis for land use regulations

American Planning Association, Policy Guide on Takings (April

1995). http://www. planning. org / policyguides/takings html.

18

helps lay the foundation for a strong defense against any

takings claim.” Id.

II. The invalidation remedy that necessarily

follows from a finding that a law does not sub-

stantially advance a legitimate state interest

contradicts the express, self-executing com-

pensation remedy of the Takings Clause.

The Ninth Circuit’s invalidation of Hawaii’s law turns

a blind eye to the self-executing compensation remedy of

the Takings Clause and thereby reveals the Agins mas-

querade. In First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987), the Court held

that the remedy for a regulatory taking, as with a physical

taking, is compensation. As discussed above in Part I. C.,

this decision ended the debate as to whether the Pennsyl-

vania Coal decision spoke merely symbolically of excessive

regulations as takings by concluding that it did not. A

regulatory taking was a true, not a symbolic, taking,

insofar as the self-executing compensation remedy is

concerned. 482 U.S. at 315. As Justice Kennedy has

explained:

The [Takings] Clause operates as a conditional

limitation, permitting the government to do what

it wants so long as it pays the charge. The Clause

presupposes what the government intends to do

is otherwise constitutional.

Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998)

(concurring in the judgment and dissenting in part).

An act that does not substantially advance a legiti-

mate state interest as required by the federal constitution

is void, Nectow v. City of Cambridge, 277 U.S. 183 (1928),

~

19

and a void act cannot be a taking. Allowing an ordinance

found to not substantially advance legitimate state inter-

ests to remain in effect by treating it as an exercise of the

power of eminent domain is not constitutionally permissi-

ble. Yet, the plain meaning of the Agins formula coupled

with the express mandate of the Fifth Amendment means

that an ordinance that does not substantially advance a

legitimate state interest can remain in force if compensa-

tion is paid. *

Numerous courts have made the point that where an

ordinance is invalidated as an improper exercise of the

police power, any loss sustained for the period the ordi-

nance applied to the property is not a compensable exer-

cise of the power of eminent domain. Pheasant Bridge

Corp. v. Township of Warren, 169 N.J. 282, 777 A.2d 334,

343 (2001), cert. denied, 535 U.S. 1077 (2002), Sea Cabins

on Ocean IV Homeowners Ass’n, Inc. v. City of North

Myrtle Beach, 345 S.C. 418, 548 S.E.2d 595, 604 (2001),

Miller & Son Paving, Inc. v. Plumstead Twp., 717 A.2d 483

(Pa.1998), cert. denied, 525 U.S. 1121 (1999), Landgate,

Inc. v. California Coastal Commission, 17 Cal.4th 1006,

953 P.2d 1188, 1195, 73 Cal.Rptr.2d 841, 848, cert. denied,

525 U.S. 876 (1998). See also Board Machine, Inc. v. U.S.,

49 Fed.Cl. 325, 328 (2001) (unauthorized action of gov-

ernment official not within the purview of the takings

clause). See generally John D. Echeverria, Taking and

Errors, 51 Ala.L.Rev. 1047 (2000).

Since the exercise of the power of eminent domain

requires legitimate government action, a judicial finding of

illegal or unauthorized action precludes the constitutional

trigger of compensation. Even if the period of time from

application to declaration of invalidity were viewed as a

taking for a public use, that would not end the inquiry. A

20

second analysis would follow under the Penn Central

factors to determine whether a taking had occurred.

While retrospective monetary relief could be labeled

compensation for a temporary taking, characterizing a

monetary award for the past effects of a law found invalid

for failing to substantially advance a legitimate state

interest as a taking means that the government took

property by an illegal act. Since an award of just compen-

sation “presupposes what the government intends to do is

otherwise constitutional,” Eastern Enterprises, 524 U.S.

498, 545 (1998) (Kennedy, J., concurring in the judgment

and dissenting in part), awarding compensation for some-

thing the government did unconstitutionally is a constitu-

tional impossibility.

Despite the Fifth Amendment’s self-executing com-

pensation remedy for a taking, First English, 482 U.S. at

315, the Court has recognized that an exception must be

made in the unusual situation where monetary relief

would be ineffective. For example, in Eastern Enterprises

v. Apfel, 524 U.S. 498 (1998), coal companies sued to

escape having to pay money into a retirement fund for

miners. Finding the act to impose retroactive liability and

constitute a taking, it made no sense to have the coal

company comply with the law by paying money into the

fund (and thus complete the taking) only to turn around

and order the fund to give the money back to the coal

company as compensation. But, as Justice Kennedy

pointed out in his concurrence, this feature itself sug-

gested that the takings clause was inapposite. 524 U.S. at

540.

Invalidation is the exception, not the rule. Asking that

invalidation be recognized as a commonplace remedy for a

21

taking reveals the flawed basis of the Respondent’s argu-

ment.

III. Incorporating the substantially advances test

into the Takings Clause in order to apply in-

termediate scrutiny to judge the wisdom and

efficacy of government regulation undermines

the legislative process and compromises or-

derly planning.

A. The legislative and planning processes fol-

lowed across the country, particularly at

the local level, are the epitome of participa-

tory democracy and deserve to be accorded

substantial deference by the Court.

The planning and legislative processes that local

governments use to consider, formulate, and adopt regula-

tions are by their very nature participatory. Property

owners, special interest groups, and members of the

general public have ample opportunity to make their views

known before elected officials adopt policies that will

govern community affairs. If members of the public dis-

agree with decisions made they have an opportunity to

seek relief through the legislative or administrative

appeals processes. In many states, they can engage in

direct lawmaking by use of the initiative or referendum.

And, they have the power at the polls to turn out of office

those they believe have not served them well.

The appropriate way to promote the public’s involve-

ment in the development of state and local laws and

regulations is through a democratic process that allows for

public debate and deliberation based on studies designed

to evaluate alternative approaches to achieving commu-

nity objectives. The process may be time-consuming but

22

democracy often is. For example, this Court recognized the

importance of the decision making process in Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302 (2002), observing that the morato-

rium imposed by the regional agency allowed it “to obtain

the benefit of comments and criticisms from interested

parties, such as the petitioners, during its deliberations.”

535 U.S. at 340. The district court in Tahoe-Sierra noted

the complexity of the planning task, and found the agency

had acted reasonably and in good faith, and did not waste

time in enacting a new plan. 34 F. Supp. 2d 1226, 1250 (D.

Nev. 1999). Courts should defer to the legislative judg-

ments that flow from this process.

Involving the public in formulating legislation

through public review and comments are concepts that are

integral to the planning process. The Code of Ethics of the

American Institute of Certified Planners, whose member-

ship includes more than 14,000 certified professional

planners, places particular emphasis on the planning

profession’s special responsibility to serve the public

interest and to involve the public in the process of balanc-

ing among divergent interests. To the planning profession

the public interest is not an abstract concept but rather a

set of principles that is defined through debate and with

the full participation of citizens. To that end, the planner

has special obligations that include striving to provide full,

clear and accurate information on planning issues to

citizens and governmental decision-makers. The planner’s

Code of Ethics requires that every effort be made “to give

* The American Institute of Certified Planners, known as AICP, is a

subsidiary institute of amicus American Planning Association. http://

www.planning.org/aicp/

23

citizens the opportunity to have a meaningful impact on

the development of plans and programs. Participation

should be broad enough to include people who lack formal

organization or influence.” Endorsing the Ninth Circuit’s

second guessing of legislation would undermine the

public’s role in defining the public interest. And, as Judge

J. Harvie Wilkinson has observed, in these times we can ill

afford to do this:

The very impersonality of global trends and na-

tional bureaucracy will leave state and local gov-

ernments among the few places where a sense of

civic connection with governing institutions can

still be felt.

J. Harvie Wilkinson, III, Chief Judge, United States Court

of Appeals for the Fourth Circuit, “Is There a Distinctive

Conservative Jurisprudence?” 73 U.Colo.L.Rev. 1383, 1392-

93 (2002).

B. Judicial second-guessing destroys the pub-

lic effort that the planning process embod-

ies.

Intermediate judicial scrutiny is neither needed nor

justified to protect those who are well represented in

legislative halls. Property owners, developers, and finan-

cial institutions, along with special interest groups such as

homebuilders and realtors associations, as well as envi-

ronmental organizations, all have an opportunity to speak

up on how their communities should develop and grow.

The economic and political influence of those wishing to

* AICP Code of Ethics and Professional Conduct (Adopted October

1978, amended October 1991).

24

develop land or to prevent land from being developed will

wax and wane. One group will be strong in some commu-

nities and weak in others. Legislators who disfavor growth

will be replaced by those who favor growth or vice-versa.

But those who are affected, particularly property owners,

have a powerful voice in what happens.

The Court recognized in Dolan v. City of Tigard that

“cities have long engaged in the commendable task of land

use planning, made necessary by increasing urbanization.”

512 U.S. 374, 396 (1994). Engagement in this task calls for

a process that may be messy at times and may result in

laws that are imperfect in design, but those imperfections

are the essence of our democratic system. To permit a

judge who thinks a law is imperfect or unwise, with the

stroke of a pen, to undermine this democratic process

violates the fundamental mandate of our constitutional

government that separates the legislative, judicial, and

executive branches.

*

CONCLUSION

The decision of the court of appeals should be reversed.

Respectfully submitted,

EDWARD J. SULLIVAN*

CARRIE A. RICHTER

GARVEY SCHUBERT BARER

121 SW Morrison St. #1100

Portland, Oregon 97204

503-228-3939

Attorneys for Amicus

*Attorney of Record

December 3, 2004