# Amicus Curiae Brief — Lingle v. Chevron USA Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0032%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 528

## Text

Suprcm Court US
'

y JAN } & 2005
No. 04-163 UTRICE OF Dik CLERK
EE
In The

Supreme Court of the United States

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 AMICUS CURIAE
NATIONAL ASSOCIATION OF HOME BUILDERS
IN SUPPORT OF RESPONDENT

DUANE J. DESIDERIO MICHAEL M. BERGER*

NATIONAL ASSOCIATION OF MANATT, PHELPS & PHILLIPS.
HOME BUILDERS LLP

1201 15" Street, N.W, *Counsel of Record

Washington, D.C. 20005 111355 West Olympic
Telephone: (202) 866-8200 Boulevard
Los Angeles, CA 90064-1614
Telephone: (310) 312-4000
Attorneys for Amicus Curiae
The National Association of Home Builders

EES

TABLE OF CONTENTS

Page
INTEREST OF AMICUS CURIAE coccccccccccccccccscsccscccceccsceee. |
SUMMARY OF ARGUMENT............cccccccccsssseccesseseeceececes 2

AGINS ESTABLISHED ITS RULE BY
HOLDING, NOT BY DICTUM, AND THE
COURT HAS HEWED TO IT EVER SINCE......... 5

TAKINGS AND DUE PROCESS ARE
DIFFERENT THEORIES, THERE IS NEED
AND ROOM FOR BOTH IN EVALUATING

THE PROPRIETY OF REGULATIONS ............... 8

A Economic Impact Has Never Been The
Sine Qua Non Of The Takings Clause. ....... 8

B A "Substantial Advancement"
Analysis Is Not The Sole Province Of
The Due Process Clause. ..........ccccccccccccceees 10

C The Regulators Over-Read The Court's

Decision in First English. ..ccccccccccccccccceee 18

TABLE OF CONTENTS
(continued)
Page

i A MERE GOVERNMENTAL STATEMENT
THAT REGULATION IS UNDERTAKEN
TO ADVANCE THE PUBLIC INTEREST
CANNOT BE ACCEPTED ON FAITH.
REAL JUDICIAL INQUIRY IS REQUIRED..... 21

A The Bill of Rights Was Designed To
Restrict The Power of Government.
This Court Has Consistently Applied
That Restriction Under The Takings
CORMBB, .coccccocevcccscesssccsssevsseseeesinnnnnninnnnnnnan 21

B An Elevated Level Of Judicial
Scrutiny Is Necessary To Vindicate
The Protection Intended By The
Takings Clause, ....c.cvcccsscsrsssseseserssossoonesssnees 24

CONCLUSION ...cccrccrrcccscscccovevcersessesessosensesonssssossssssssssnne 29

TABLE OF AUTHORITIES
Page
CASES
Agins v. City «f Tiburon,
447 U.S. 255
I iiliietiiidstcecenccccensncecs 2, 3, 5, 8, 9, 10, 15,
EES EE 17, 19, 22, 25, 28, 30
Andrus v. Allard,
Ee 6, 8
Armendariz v. Penman,
75 F.3d 1311 (9th Cir. 1996) (en banc).................. 16
Armstrong v. U.S.,
a anesuennonens 29
Babbitt v. Sweet Home Chapter of
Communities for a Great Or.,
re 2
Babbitt v. Youpee,
a 6,9
Bateman v. City of West Bountiful,
89 F.3d 704 (10th Cir. 1996)..............ccccccceceeeeeeseees 16
Berman v. Parker,
Ee 13, 15
Borden Ranch P’Ship v. U.S. Army Corps
of Engineers,
EEL 2
City of Cu —~ 4 Falls v. Buckeye Cmty.
a US. 188
I ccnenenenten 2
City of Monterey v. Del Monte Dunes,
ET 2, 5, 7, 22

TABLE OF AUTHORITIES

(continued)
Page

Collins v. Harker Heights,

ye cncinscnicennuinsnvenensitienitebivinanians 16
County of Sacramento v. Lewis,

es Ce ctnctnintictitintnincentinnaainineaiiieiediuiaiia 27
Del Monte Dunes at Monterey v. City of

Monterey, 95 F.3d 1422

re 7, 8, 23, 25, 29
Delaware, Lackawana & Western Ry. Co.

v. Morristown, 276 U.S. 182 (1928) .................0.. 11
Dolan v. City of Hoo

$12 U.S. 374 (1994)...............0.+. 2, 10, 24, 25, 27, 28
Ehrlich v. City of Culver City,

ee es Ce CR iccntececesieninisanniiiininninninnniis 25

First English Evangelical Lutheran Church
v. County of Los Angeles,
GBS U.S. SOS (IGG 7) nceccccccccoscceccscssees 2, 12, 18, 19, 23

Florida Prepaid Postsecondary Ed.
Expense Bd. v. College Savings Bank,

ST ii il 25
Florida Rock Indus., Inc. v. U.S.,

18 F.3d 1560 (Fed. Cir. 1994). 00000 16
Graham v. Connor, 490 U.S. 386 (1989) ..00000.... 16
Hawaii Housing Auth. v. Midkiff,

I a ne 12

Hodel v. re >
481 U.S. 704, 718 (1987).........6, 8, 9, 15, 18, 19, 28

Hughes v. Washington,
I 10

TABLE OF AUTHORITIES
(continued)
Page
Kaiser Aetna v. U.S.,
I Ci 15
Kelo v. City of New London,
I a a I 4
Kelo v. City of New London,
843 A.2d 500 (Conn. 2004), cert.
SE, CE > OF GD ctcccnsnnccceneesmsememmennen 2
Kennedy v. Mendoza-Martinez,
I i 21
Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U.S. 470
TRATES 6, 8, 11, 15, 18, 19
Levin v. Upper Makefield Township,
No. 04-300 aa el 27
Lindquist v. Buckingham Township,
9 | A LE NET LET ETT ee 27
Lochner v. New York,
8 rT eee 16, 27
Loretto v. Hoa ry r Manhattan CATV
OU 9,15
Lucas v. South Carolina Coastal Council,
os SLES E 2, 15, 28
MacDonald, Sommer & Frates v. Yolo
County, 477 U.S. 340 (1986) ..............ccccccceeeeeees 2, 15
Marbury v. Madison,
DO 21
Minnesota v. Clover Leaf Creamery Co.,
IE 26

TABLE OF AUTHORITIES
(continued)
Page
Monell v. Department of Social Services,

I 17
Monroe v. Pape, 365 U.S. 167 (1961) ...............cccceeeee 17
Moore v. City of East Cleveland,

I alan 12
Nestor Colon Medina & Sucesores, Inc. v.

Custodio, 964 F.2d 32 (1st Cir. 1992)... 26
Nollan v. California Coastal Comm'n,

483 U.S. 825 (1987) .....2, 6, 8, 14, 18, 19, 23, 24, 25
Palazzolo v. Rhode Island,

ETT EE 2,8, 12
Pearson v. C ity of Grand Blanc,

te by | f (s 5 a 26
Penn Central Transp. Co. v. City of New

York, 438 U.S. 104

TEESE SEE 3, 8, 9, 14, 15, 25, 29, 30
Pennsylvania Coal Co. v. Mahon,

EE 10, 11, 15, 22
Rochin v. California,

I i 27
S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 124 S. Ct. 1537

leh Daler RE, SRR eee Pome ere aE ee 2
San Diego Gas & Elec. Co. v. City of San

Diego, 450 U.S. 621 (1981) ................. 2, 10, 12, 15
San Remo Hotel v. City and County of

SD FUBMGIIOD, FED. BG SG cccccccccccccccsccccceccscccsssccsses 20

vi

TABLE OF AUTHORITIES

(continued)
Page
Solid Waste Agency of N. Cook County v.
U.S. re! y, AY Engineers,
8 ne 2
South County Sand & Gravel v. Town of
South + 160 F.3d 834
| AT, FP ae 16
Suitum v. Tahoe Reg. Planning Agency,
ERE ee 2
Tahoe-Sierra Preservation Council v.
Tahoe Reg. Plan. Agency,
a ean 2,7,8
U.S. v. Carolene Prods., 304 U.S. 144
STITT iineabiiiiiaiteiiata ape ceaiaatintanaeanaaaareaasiai 29
U.S. v. Vajakajian, 524 U.S. 321, 324
ST inseideliehcetineiiiaentinentetaitereiptma ta raatetaaaitate 25
United Artists v. Township of Warrington,
oo 26
Williamson County Reg. Plan. Comm'n v.
Hamilton Bank, 473 U.S. 172 (1985). .............. 2, 20
Winger v. Aires,
SY SETI: SONI cccernscersnnicernientenecensnnnitnciemsiis 22
Yee v. City of Escondido,
ee I ciincirsncndinnnitntinnmmnnnnidtiainiiita 12

vil

TABLE OF AUTHORITIES
(continued)

CONSTITUTION

ET AAA AR CR TNE

| TTT: Te 27
I 1, 2,4, 27
STATUTES
| Eee ne 15,17
OTHER AUTHORITIES

Eagle, Regulatory Takings,
SRE Eo 27

Hentoff, Living the Bill of Rights

GD sinceercarsnsssscbieneienicinnninnnnmnniiniiiansotinis

Michelman, Property, Utility, and
Fairness: Comments on the Ethical

Foundations of "Just Compensation"
Law, 80 Harv. L. Rev. 1165.

Van Alstyne, Taking or Damaging by
Police Power: The Search for Inverse
Condemnation Criteria, 44 §. Cal. L.

SS ae

Waite, Governmental Power and Private
Property, 16 Cath. U.L. Rev. 283

RN a PRES SANE Oe ee ee

vill

nn

With the joint written consent of the parties filed
with the Clerk of the Court, the National Association of
Home Builders (NAHB) respectfully submits this brief
as amicus curiae.’

INTEREST OF AMICUS CURIAE

NAHB represents more thar. 215,000 builder and
associate members throughout the United States. Its
members. include people and firms that construct and
supply single family homes, as well as apartment,
condominium, commercial, and industrial structures,
land developers, and remodelers. It is the voice of the
American shelter industry. It is — and historically has
been — vitally concerned with judicial decisions dealing
with government regulation of property, with a
particular interest in this Court's interpretation and
application of the 5th Amendment.

NAHB has appeared before the Court as an
amicus curiae or “of counsel" to property owners in a
number of cases involving the rights and remedies of
those adversely affected by governmental actions.
These began with the case that has become the focal
point at bench, Agins v. City of Tiburon, 447 U.S. 255
(1980), and continued with San Diego Gas & Elec. Co.
v. City of San Diego, 450 U.S. 621 (1981); Williamson
County Reg. Planning Comm'n v. Hamilton Bank, 473
U.S. 172 (1985); MacDunald, Sommer & Frates v. Yolo

Counsel for amicus curiae authored this brief in
whole and no other person or entity other than amicus, its
members or counsel have made a monetary contribution to
the preparation or submission of this brief.

County, 477 U.S. 340 (1986); First English Evangelical
Lutheran Church v. County of Los Angeles, 482 U.S.
304 (1987); Nollan v. California Coastal Comm'n, 483
U.S. 825 (1987);° Lucas v. South Carolina Coastal
Council, 505 U.S, 1003 (1992); Dolan v. City of Tigard,

512 U.S. 374 (1994); Babbitt v. Sweet Home Chapter of

Communities for a Great Or., 515 U.S. 687 (1995);
Suitum v. Tahoe Reg. Planning Agency, 520 U.S. 725
(1997), City of Monterey v. Del Monte Dunes, 526 US.
687 (1999); Palazzolo v. Rhode Island, 533 U.S. 606
(2001); Solid Waste Agency of N. Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001); Tahoe-
Sierra Preservation Council v. Tahoe Reg. Planning
Agency, 535 U.S. 302 (2002); Borden Ranch P'Ship v.
U.S. Army Corps of Engineers, 537 U.S. 99 (2002); City
of Cuyahoga Falls v. Buckeye Cmty, Hope Found., 538
U.S. 188 (2003); S. Fla. Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 124 §, Ct. 1837 (2004) and
Kelo vy. City of New London, 843 A.2d 500 (Conn,
2004), cert. granted, 125 §.Ct. 27 (2004),

SUMMARY OF ARGUMENT

1. This Court's decision in Agins v. City of

Tiburon, 447 U.S. 255 (1980), plainly held that a Sth
Amendment taking of property occurs when a regulation
fails to substantially advance a legitimate state interest,
contrary to the repeated assertions of Petitioners and
their amici, who insist that it was mere dictum. — In
Agins, the Court first’ described its two-pronged

The Court's opinion cited NAHB's brief. (483
U.S. at 840.)

alternative test for regulatory takings and then held that
the city's regulation substantially advanced a legitimate
State interest, thus eliminating any need to determine
whether there was any adverse economic impact. It has
become a regulators’ fiction, a modern urban myth, to
describe the test as "dictum," but the regulators’ position
is nonetheless fiction. The test was an integral part of
the Court's holding. Eliminating one of the test's two
prongs would require overruling Agins and, at least in
part, Penn Central Transp. Co. v. City of New York, 438
U.S. 104 (1978), a result that would be as unfortunate
for takings jurisprudence as it would be out of pattern
with the Court's other decisions.

2. There is no basis for the Petitioners' charge
that the Agins formulation was the result of this Court's
"confusion" between takings and due process doctrine.
Rather, as this Court's later opinions fleshed out, there is
a substantial relationship between takings and due
process that sometimes makes them resemble each other.
The Court, for example, has explained that the breadth
of the eminent domain power is "coterminous" with the
scope of the police power, although the former is
reviewed under the Takings Clause and the latter under
the Due Process Clause.

The relationship between the two powers may be
most clearly seen in the "public use" restriction on the
power of eminent domain (otherwise an inherent power
of government). If a deliberate attempt to exercise
eminent domain is found not to be for a public use, then

the taking is enjoined as invalid.’ In similar fashion, if a
regulation fails to substantially advance a iegitimate
state interest, it 1s also enjoined as invalid (with
compensation for any temporary taking that occurred
while the invalid regulation was enforced), Both
theories operate under, and are judged by, the Takings
Clause,

3. The real crux of the regulators’ position here is
not whether their actions are challenged under a taking
theory or a due process theory, but what standard of
review is applied. Regardless of the constitutional
theory, they want a standard of review that is so
deferential as to be a virtual rubber stamp. That does not
fit with this Court's settled jurisprudence nor with this
Nation's development.”

In order to vindicate the Sth Amendment's
protection of the rights of private property owners, it is
essential that the judiciary engage in an elevated form of
review, something that will actually ensure that the
Takings Clause is effectuated, not merely mouthed.

‘ The public use issue is currently before the Court

in Kelo v. City of New London, no. 04-108, set for oral
argument the same day as this case.

’ They have perhaps lost sight of the fact that our
forebears revolted against the British because they had
no real ability to have substantial regulatory review.
(Events like the Boston tea party come to mind.)

4

AGINS ESTABLISHED ITS RULE BY HOLDING, NOT
BY DICTUM, AND THE COURT HAS HEWED TO IT
EVER SINCE,

The strange governmental premise at bench is
that the regulators are merely asking the Court to clear
away a bothersome "dictum" that has never formed a
holding of the Court. (E.g., Lingle 25.) That is a false
premise.” In opinions authored by a variety of Justices,
the Court has regularly applied the test.

In Agins, the Court laid down the rule for
evaluating regulatory taking claims (447 U.S. at 260)
and then applied that rule by holding that the city had
met the standard: "the zoning ordinances substantially

. The Solicitor General's repetition of this

argument (US 24) is particularly troublesome. The
arguments of that office are rightly respected by this
Court. But the Solicitor General never questioned the
validity of the Agins formulation before its amicus brief
in City of Monterey v. Del Monte Dunes, 526 U.S. 687
(1999) (as NAHB demonstrated in its own amicus brief
in that case, pp. 16-17, fn. 5) and this Court refused to
consider the argument there. Indeed, even in this case,
the Solicitor General concedes that the Court upheld the
regulation in Agins because it "did ‘substantially advance
legitimate governmental goals .. . ." (US 24, fn. 14;
emphasis in original), plainly denoting a holding. So
why attack the rule as "dictum" when it clearly was not
and the Solicitor General knows it was not?

5

advance legitimate governmental goals." (447 U.S. at
261 |Powell, J.].) That was not dictum; it was ratio
decidendi,

Thereafter, in Hodel v. Irving, 481 U.S, 704, 718
(1987), the Court struck down a federal statute, holding
it went "too far" because its proper purpose would not
always be advanced by its application. ({O'Connor, J.].)°

In Nollan, this Court again applied the standard
and held that the California Coastal Commission had
failed the test of advancing the public purpose and
therefore its permit condition was invalid. (483 U.S. at
837 |Scalia, J.J.)

In Andrus y. Allard, 444 U.S. 51 (1979), the
Court began its analysis of the constitutionality of the
Eagle Protection Act by concluding that its terms
reasonably advanced its purposes (444 U.S. at 57-58
[Brennan, J.]), presaging Agins and using the same kind
of Takings Clause analysis to uphold the statute.

In Keystone Bituminous Coal Assn. _ ¥v.,
DeBenedictis, 480 U.S. 470, 485 (1987), the Court
summarized the rule this way: “We have held that land
use regulation can effect a taking if it ‘does not
substantially advance legitimate state interests. .. .'
{Citing Agins.|" (Emphasis added [Stevens, J.].)

, Congress’ later attempt to "fix" the statute was

struck down for the same reasons. (Babbitt v. Youpee,
519 U.S. 234 [1997] (Ginsburg, J.].)

6

In Del Monte Dunes, a property owner proved at
trial that "none of the City's stated reasons for denying
its application was sufficiently related to the City's
legitimate interests." (Del Monte Dunes at Monterey vy.
City of Monterey, 95 F.3d 1422, 1430 [9th Cir, 1996],
affd sub nom. City of Monterey v. Del Monte Dunes,
526 U.S. 687 [1999].) The evidentiary clash is
discussed in detail in the Court of Appeals' opinion (95
F.3d at 1430-1432), and noted with this Court's
comment that the owner "submitted evidence designed
to undermine the validity of the asserted factual
premises for the city's denial of the final proposal. . . ."
(526 U.S. at 699; emphasis added [Kennedy, J.].)’

More recently, in Tahoe-Sierra Preservation
Council v. Tahoe Reg. Plan. Agency, 535 U.S. 687
(2002), the Court reiterated that considerations of
"fairness and justice" could require relief under the
Takings Clause if a regulation "did not substantially
advance a legitimate state interest." (535 U.S. at 334
(Stevens, J.].) In support, the Court cited both Agins and
Del Monte Dunes.

The "substantially advance" theory is an
embedded part of Takings Clause jurisprudence. The

, Del Monte Dunes was a 5-4 decision on the 7th

Amendment issue of whether liability shoula j.ave been
decided by judge or jury, but the four dissenters agreed
that a decision on the validity of the city's action was
appropriate for trial under the Takings Clause. The only
disagreement was on the question of who made that
ultimate decision. (See 526 U.S. at 755, fn. 14.)

J

Court has used it to uphold regulations (Agins, Andrus),
to strike down regulations (Nollan, Hodel), to uphold a
compensatory award (Del Monte Dunes) and has
referred to it repeatedly (e.g., Keystone, Tahoe-Sierra),
Calling it dictum doesn't change those facts.

TAKINGS AND DUE PROCESS ARE DIFFERENT
THEORIES, THERE IS NEED AND ROOM FOR
BOTH IN EVALUATING THE PROPRIETY OF
REGULATIONS.

The regulators assert that this Court was
"mistaken" and "confus[ed]" about takings and due
process when it established Agins' two part disjunctive
lest for a regulatory taking. (Lingle 23, 28.) NAHB
demurs. The Court plainly recognized a proper sphere
for each theory, and the relevance to the Takings Clause
of both substantial advancement of legitimate interests
and economic impact.

A

Economic Impact Has Never Been The Sine Qua Non
Of The Takings Clause.

Agins was decided shortly after Penn Central
Transp. Co. v. City of New York, 438 U.S. 104 (1978)
— and Penn Central is recognized as the polestar of this
Court's modern takings jurisprudence. (E.g., Tahoe-
Sierra Preservation Council v. Tahoe Reg. Plan.
Agency, 535 U.S. 302, 327, fn. 23 [2002]; Palazzolo v.

Rhode Island, 533 U.S. 606, 633 [2001}.)

In laying out the proper mode of analysis for
regulatory taking cases, this Court made clear that there
were many factors to be considered, and economic
impact was merely one of a group of factors to consider
in what must be “essentially ad hoc, factual inquiries."
(Penn Central, 438 U.S. at 124.)

Thus, when Agins held that either economic
impact or failure to substantially advance legitimate
state interests would suffice to invoke the protection of
the Takings Clause, it was merely amplifying what the
Court established in Penn Central two years earlier.
Later cases continued that development.

In Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419 (1982), a case challenging a New
York statute authorizing the installation of cable TV in
apartment buildings over the owners’ protests, the Court
found a taking regardless of the fact that the amounts
involved were de minimis.

In Hodel v. Irving, 481 U.S. 704 (1987), a case
challenging a congressional scheme to escheat miniscule
estates of Native Americans in order to reduce the
government's administrative costs, the Court found a
taking regardless of the fact that the property interests
involved were worth less than $100 each. (See also
Babbitt v. Youpee, 519 U.S. 234 [1997] [amended statute
struck down in similar fashion].)

In Dolan vy. City of Tigard, 512 U.S. 374 (1994),
the Court found that conditions to a land use permit
amounted to a taking because they were not “roughly
proportional” to the projected impact of the proposed
development. A taking was found even though Mrs.
Dolan “assuredly [was] able to derive some economic
use from her property." (512 U.S. at 385, fn. 6;
emphasis, the Court's.)

In short, although economic impact can be an
important factor in regulatory takings, it is not the sole
— or even determinative — factor. It never was.

A "Substantial Advancement" Analysis Is Not The
Sole Province Of The Due Process Clause.

At the heart of the regulators’ substantive
argument is the neo-Lochnerian notion that “failure to
substantially advance a legitimate state interest” is
“really” a substantive due process standard, rather than a
takings standard. (Lingle 23.)

But the Agins formulation fits with this Court's
consistent view of regulatory takings as well as its view
of the relationship of substantive due process to the
enumerated protections in the Bill of Rights.

First, since Pennsylvania Coal Co. v. Mahon, 260

U.S. 393 (1922), the Court's regulatory taking law has
been premised on the concept that a taking occurs when
an exercise of the police power goes “too far." All of the

10

Court's subsequent regulatory takings jurisprudence has
explicated the meaning of “too far" and described how
one draws that line. But the only way to determine that
answer is to examine the regulatory action and
determine precisely what it does and how it does it.
(Hughes v. Washington, 389 U.S. 290, 298 [1967];
Stewart, J., concurring. See also San Diego Gas & Elec.
Co. v. City of San Diego, 450 U.S. 621, 652-653 [1981];
Brennan, J., dissenting but apparently expressing the
substantive view of a majority of the Court [see 450 U.S.
at 633-634; Rehnquist, J., concurring]}.)

Plainly, one of the ways in which government
regulators can go “too far" is by enactuug regulations
thought to be in the public interest but which, in fact, fail
to substantially advance that interest.”

"Pennsylvania Coal instructs courts to examine
the operative provisions of a statute, not just its
stated purpose, in assessing its true nature. In
Pennsylvania Coal, that inquiry led the Court to
reject the Pennsylvania Legislature's stated
purpose for the statute... ." (Keystone, 480
U.S. at 487, fn. 16.)

Justice Stevens analyzed the Court's application
of the Takings Clause in Pennsylvania Coal this way:

. Shortly after Pennsylvania Coal, the Court struck
down another regulation as a taking because the
government lacked a proper regulatory purpose.
(Delaware, Lackawana & Western Ry. Co. ¥.
Morristown, 276 U.S. 182, 195 [1928].)

"In his opinion for the Court, Mr. Justice
Sutherland fused the two express constitutional
restrictions on any state interference with
private property — that property shall not be
taken without due process nor for a public
purpose without just compensation — into a
single standard." (Mvore v. City of East
Cleveland, 431 U.S. 494, 514 [1977]; Stevens,
J., concurring.)

Thus, in Justice Stevens’ view, the East Cleveland
ordinance in Moore was invalidated as a taking because
analysis showed there was no justification for the
ordinance. (431 U.S. at 520.)

In San Diego Gas, Justice Brennan's nominally
dissenting opinion concluded that California's courts had
contradicted this Court's clear precedents by holding that
“a city's exercise of its police power, however arbitrary
or excessive, cannot as a matter of law constitute a
‘taking’ within the meaning of the Fifth Amendment.”
(450 U.S. at 647.)”

In Hawaii Housing Auth. v. Midkiff, 467 U.S.
229, 240 (1984), Justice O'Connor explained for the
Court that “the ‘public use’ requirement is .. .
coterminous with the scope of a sovereign's police
powers.” Justice O'Connor amplified this thought in Yee
v. City of Escondido, 503 U.S. 519, 530 (1992), a case

° Justice Brennan's view became the basis for the

Court's decision in First English, which cites the
Brennan dissent repeatedly and tracks its analysis.

12

challenging rent control regulations as a taking of
property, concluding that a regulatory taking depends on
“whether there is a sufficient nexus between the effect of
the ordinance and the objectives it is supposed to
advance." Justice O'Connor then returned to this theme
more recently in Palazzolo, showing how “{[t)he first
question” in a takings analysis is whether "application of
a regulation constitutes a valid exercise of the police
power.” (533 U.S. at 636; O'Connor, J., concurring.)

In Berman v. Parker, 348 U.S. 26, 31 (1954), the
Court evaluated “public use” in a direct condemnation
case by noting that "[wJe deal, in other words, with what
traditionally has been known as the police power."

As the Solicitor General put it in his amicus
curiae brief in this case:

"(Indeed the ‘public use’ requirement would be
a proper basis under the Just Compensation
Clause for any examination parallel to that
under the Due Process Clause of whether the
governmental action could rationally be
expected to advance a legitimate public
purpose.” (US 22, fn. 10.)

In other words, the Takings and Die Process
Clauses are not separated in hermetically sealed
containers, as the regulators would have it. Rather, they
are closely related — “fused,” to use Justice Stevens’

13

word, or “coterminous,” to borrow Justice O'Connor's.'”

A regulation that goes “too far,” like the Hawaii statute
at bench, violates the Takings Clause, regardless of any
due process analysis. (Nollan, 483 U.S. at 835, fn. 3.)
As the polestar Penn Central opinion put it, "a use
restriction may constitute a ‘taking’ if not reasonably
necessary to the effectuation of a substantial government
purpose.” (438 U.S. at 127.)'!

10

Scholars kave long understood this, denigrating
attempts to segregate the two powers. See, e.g., Waite,
Governmental Power and Private Property, 16 Cath.
U.L. Rev. 283, 292 (1967) ("illusory"); Michelman,
Property, Utility, and Fairness: Comments on the
Ethical Foundations of "Just Compensation” Law, 80
Harv. L. Rev. 1165, 1186 (1967) Poca sn Bm
Alstyne, Taking or Damaging by Police Power:
Search for Inverse Condemnation Criteria, 44 S. Cal. L.
Rev. 1, 2 (1971) ("circular reasoning, and empty
rhetoric").

'' The Petitioners’ attempt to deconstruct the word
“substantial” (Lingle 47) is unconvincing. Plainly, the
Court meant something by its use. The assertion that the
word is “ambiguous” seems disingenuous. As the Court
itself explained in Nollan, the word means more than the
rational basis concept of due process cases. (483 U.S. at
834-835, fn. 3.) Acknowledging the Nollan analysis but
describing it as “tentative” and said "in passing” (Lingle
48) does not further the inquiry. It is plain from a
reading of the cases discussed in the text that the word
has not been used casually and was, instead, intended to
have meaning.

14

Thus, under Penn Central, it is not enough to say
that a regulation is “reasonable” or has a "rational basis."
That may be the issue under the Due Process Clause, but
it is not the issue under the Takings Clause. Takings
analysis requires examination of the necessity for the
regulation as well (Penn Central, 438 U.S. at 127) and,
accordingly, whether the regulation will actually
accomplish its stated goals. And it requires that
determination to be made on an “ad hoc" basis. The
Court's requirement of ad hoc inquiry to determine
Takings Clause liability has not been restricted to Agins'
second prong, but has been a uniform requirement. (See
Penn Central, 438 U.S. at 124; Kaiser Aetna v. U.S., 444
U.S. 164, 175 [1979]; San Diego Gas, 450 U.S. at 649-
650 [Brennan, J., dissenting]; Loretto v. lew 2rompter
Manhattan CATV Corp., 458 U.S. 419, 426 [1982];
MacDonald, Sommer & Frates v. Yolo County, 477 U.S.
340, 349 [1986]; Keystone, 480 U.S. at 474, 495; Hodel,
481 U.S. at 714; Lucas, 505 U.S. at 1015.)"”

s Some of the cases cited above involved as-

applied challenges, others were facial; some involved
regulatory takings, others were physical; some involved
development denials, others conditions on development;
some involved 42 U.S.C. § 1983, others did not; some
were from state courts, others federal. But they all
concerned Takings Clause challenges and they all
required factual examination of the regulatory action to
determine its validity. Indeed, this factual requirement
pre-dates the Court's takings decisions during the last
few decades. (See Pennsylvania Coal, 260 U.S. at 413;
Berman v. Parker, 348 U.S. 26, 32 [1954].)

15

In Lucas, 505 U.S. at 1030, the Court mandated a
"total takings inquiry" into a case's facts and background
circumstances using the Penn Central rationale, except
for those few cases that would fit within the per se, or
categorical, takings categories.

Lower courts have followed Penn Central's lead
in examining the "necessity of regulation” under a
Takings Clause analysis:

"In short, has the Government acted in a
responsible way, limiting the constraints on
property ownership to those necessary to
achieve the public purpose, and not allocating
to some number of individuals, less than all, a
burden that should be borne by all?" (Florida
Rock Indus., Inc. v. U.S., 18 F.3d 1560, 1571
(Fed. Cir. 1994]; emphasis added.)

Second, perhaps wary of resurrecting Lochner v.
New York, 198 U.S. 45 (1905), the Court has not looked
favorably on actions that would expand the reach of
substantive due process. (See, e.g., Collins v. Harker
Heights, 503 U.S. 115, 125 [1992] ["the Court has
always been reluctant to expand the concept of
substantive due process because the guideposts for
responsible decisionmaking in this uncharted area are
scarce and open-ended" }.)

To restrict the reach of substantive due process,
Graham v. Connor, 490 U.S. 386 (1989) holds that,
where a claim can be brought under one of the
separately stated Bill of Rights guarantees, there is no

16

substantive due process claim. Some lower courts have
interpreted Graham to preclude property owners from
suing on substantive due process grounds because the
Takings Clause provides an adequate constitutional
remedy. (E.g., Armendariz v. Penman, 75 F.3d 1311,
1318-1320 [9th Cir, 1996] [en banc]; South County Sand
& Gravel v. Town of South Kingstown, 160 F.3d 834,
835 [Ist Cir, 1998); Bateman v. City of Wes. Rountiful,
89 F.3d 704, 709 [10th Cir. 1996].)

The regulators’ briefs say they want to reverse all
that and increase the volume of substantive due process
litigation, What they really want, as briefed post, pp.
24-29, is a lessened standard of review for their actions.

Beyond that, other than a cursory mention in the
Petitioner's procedural summary (Lingle 4), the
regulators’ briefs fail even to acknowledge, much less
account for, the fact that this constitutional challenge
was brought under 42 U.S.C. § 1983.

The use of Section 1983 makes a difference.
Ignoring it allows the regulators to argue that failure to
advance a legitimate state interest cannot be a takings
theory because there can be no taking without proper
governmental action. (Lingle 18-19; US 22.) But
Section 1983 alters that. Actions under that section are
brought because of a "[m]isuse of power, possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law . . ."
(Monroe v. Pape, 365 U.S. 167, 184 [1961].) That
Statute was enacted to protect citizens against violations
of their constitutional rights under color of state law,

17

including the specific problem of Takings Clause
violations. (Monell v. Department of Social Services,
436 U.S. 658, 685-687 & fn. 45 [1978].)

Thus, in the context of Section 1983, the
“substantial advancement" prong of Agins can be used in
cases where regulations have already been invalidated to
show the need for temporary taking compensation. The
failure to substantially advance a legitimate state interest
part of the takings rationale goes beyond due process
and establishes liability in these circumstances.

C

The Regulators Over-Read The Court's
Decision in First English.

The regulators’ position is based largely on an
over-reading of First English, asserting that it
established compensation as the only remedy for a
Takings Clause violation, thus showing that the analysis
used below properly belongs to the Due Process Clause.
(Lingle 18, 19, 22; US 17-22.)

While it is true that First English answered a
question which had plagued courts for years, by
concluding that the Takings Clause prohibits states from
holding that compensation may not be awarded for
regulatory takings of property, the Court did not hold
that compensation is the only remedy available to
Takings Clause — victims. Other cases decided
contemporaneously with First English (as well as First
English itself) make this clear. (See Keystone, 480 U.S.

470; Hodel, 481 U.S. 704; Nollan, 483 U.S. 825.)

In Keystone, the first of 1987's multiple Takings
Clause cases, the Court was faced with a challenge to
the constitutionality of a statute requiring coal
companies to leave a sufficient amount of coal in the
ground to preclude subsidence, effectively prohibiting
the mining of a substantial amount of coal. The coal
companies sought injunctive relief. The important thing
about Keystone is not that the Court upheld the statute,
but the way it did so: the merits of the coal companies’
arguments were painstakingly examined. If the only
remedy for a regulatory taking were compensation, then
the Court's opinion needed to be only one paragraph
long. It could have dismissed the case on the ground
that it sought the wrong remedy. But it did not. And
First English was under active consideration at the time,
having been argued less than two months before the
Keystone opinion was filed.

Hodel was decided two months after Keystone. It
tested the constitutionality of a federal statute designed
to halt the intense fractionalization of Native American
lands by prohibiting the transfer at death of miniscule
estates. By statute, such estates would escheat to the
appropriate tribe. There was no question about the
public purpose of the statute, but the Court held it went
too far. The statute was struck down, this time less than
a month before First English would be filed.

First English itself talks of invalidating

regulations that violate the Takings Clause. (See 482
U.S. at 317, 319, 320, 322.) Compensation is an

19

additional remedy to compensate for the temporary
taking occurring between adoption of the regulation and
its ultimate invalidation. (482 U.S. at 321.)

Then, two weeks after it decided First English,
the Court decided Nollan. There, the property owners
sought a writ of mandate to invalidate a condition
attached to a development permit. No compensation
was sought. With First English freshly on the books,
the Court concluded that the permit condition effected a
taking and turned to the remedy sought by the property
owners. The Court granted the only relief sought, i.e.,
injunctive. If, as the regulators argue here, the only
remedy for a taking is compensation, then the Court had
no business granting some other form of relief.

Plainly, this Court's series of 1987 cases
demonstrates that there is no single remedy under the
Takings Clause. Injunctive relief against excessive
regulation is not the sole province of the Due Process
Clause. Depending on the facts, either monetary relief
or injunctive relief may be appropriate. Here, in an
application of Agins' first prong, the courts below
determined that injunctive relief was the proper Takings
Clause remedy on these facts. Because the economic
impact of the regulation was not at issue, that result was
both authorized and justified.'®

5 As no compensation was sought, the case was

properly filed in U.S. District Court without "ripening"
under Williamson County Reg. Plan. Comm'n vy.
Hamilton Bank, 473 U.S. 172 (1985). The operation of
the Williamson County rule has been heavily criticized,

20

A MERE GOVERNMENTAL STATEMENT THAT
REGULATION IS UNDERTAKEN TO ADVANCE
THE PUBLIC INTEREST CANNOT BE
ACCEPTED ON FAITH. REAL JUDICIAL
INQUIRY IS REQUIRED.

Reviewing the constitutionality of legislative acts
is neither to be sought nor taken lightly. However, such
review is a necessary part of our constitutional system.
As this Court explained, such review is undertaken:

".., with all respect for the powers of Congress,
but with recognition of the transcendent status
of our Constitution." (Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 159 [1963}].)

Whether legislative action complies with the
Constitution is a question for the judiciary — and has
been since Marbury v. Madison, | Cr. 137 (1803).

A

The Bill of Rights Was Designed To Restrict The
Power of Government. This Court Has Consistently
Applied That Restriction Under The Takin, Clause.

As Justice Holmes explained for the Court in its
first regulatory taking case of the 20th century, "[t}he

and will be reviewed later in the Term in San Remo
Hotel v. City and County of San Francisco, No. 04-340.

21

greatest weight is given to the judgment of the
legislature, but it always is open to interested parties to
contend that the legislature has gone beyond its
constitutional power." (Pennsylvania Coal Co, vy.
Mahon, 260 U.S. 393, 413 [1922].)""

The problem is that the regulators refuse to
recognize limits; they seek virtually unreviewable
deference. With respect, as this Court recently held in
Del Monte Dunes, 526 U.S. 687, that position is
untenable. In Del Monte, the city and its amici protested
against judicial "second-guessing" of regulatory
decisions under the first prong of Agins, asking for the
same kind of abject deference sought at bench. The
Question Presented by the city was this: |

"Whether liability for a regulatory taking can be
based upon a standard that allows a jury or
court to reweigh evidence concerning the
reasonableness of the public entity's land use
decision." (Petition, p. i; emphasis added.)

This Court's response was crisp and clear:

"To the extent the city argues that, as a matter
of law, its land-use decisions are immune from
judicial scrutiny under all circumstances, its

” See also Winger v. Aires, 89 A.2d 521, 522 (Pa.
1952) (enjoining use of eminent domain as
unnecessary): "The genius of our democracy springs
from the bedrock foundation on which rests the
proposition that office is held by no one whose orders,
commands or directives are not subject to review."

22

position is contrary to settled regulatory takings
principles. We reject this claim of error." (Del
Monte Dunes, 526 U.S. at 707.)

Del Monte was a continuation of the Court's
modern regulatory taking decisions. In First English,
the Court concluded that compensation is an available
remedy for a regulatory taking. The defendant county
and its many amici had voiced fears that a governmental
loss would cripple government's ability to gov.rn. The
Court rejected that hyperbolic plea, concluding that
“many of the provisions of the Constitution are
designed to limit the flexibility and freedom of
governmental authorities ...." (482 U.S. at 321.)

Indeed, one might say that the entire purpose of
the Bill of Rights is to restrict the exercise of
governmental power. ”

Two weeks after First English, the Court
amplified its insistence that the protection afforded the
rights of property owners be enforced, not evaded: “We
view the Fifth Amendment's Property Clause to be more
than a pleading requirement, and compliance with it to
be more than an exercise in cleverness and imagination.”
(Nollan, 483 U.S. at 841.)

As shown below, the Court's decisions under the
Takings Clause have enforced this choice of protection

'S As Justice Douglas put it, "The Constitution and
the Bill of Rights were designed to get Government off
the backs of the people — all the people." (Quoted in
Hentoff, Living the Bill of Rights 2 [1998).)

23

over inventive wordplay. Accepting the regulators’
arguments at bench, and subjecting their actions only to
minimal review, will undo the protection intended by the
Constitution and enforced by the Court until now.

An Elevated Level Of Judicia! S« rutiny Is Necessary
To Vindicate The Protection Intended By The ~
Takings Clause.

Candor is necessary. What the regulators are
really complaining about is the standard of review
(eventually discussed late in the Petitioners’ brief [Lingle
37]}). The theory under which review is made cannot be
divorced from its standard of review. Indeed, the
labeling process is otherwise meaningless: it would
make no difference which constitutional violation was
charged if the standard of review were the same.

What the regulators seek is to evade the
heightened scrutiny for regulatory takings established in
cases like Nollan v. California Coastal Comm'n, 483
U.S. 825, 834, 841 (1987)."° Instead, they want to

‘© The regulators’ briefs concede that Nollan and its
eventual companion Dolan are fully applicable to
property exactions attached as conditions to permits
(Lingle 33; US 28). but seek to evade any Nollan/Dolan
analysis by saying that those cases involve a special rule
applicable only to such permit conditions.

They are right about the continuing validity of
Nollan and Dolan, but wrong about their application

24

beyond the exaction context. First, nowhere in either
case — or in Agins or Penn Central, for that matter —
did the Court hold that the substantial advancement test
required land dedication. To the contrary, in Ehrlich v.
City of Culver City, 512 U.S. 1231 (1994), involving
development fees, the Court issued a writ of certiorari,
vacated the state court judgment, and remanded the
matter for consideration in light of Dolan, which had
just been decided. Ultimately, the California Supreme
Court agreed with this Court and applied the
Nollan/Dolan analysis to a purely monetary issue.
(Ehrlich v. City of Culver City, 911 P.2d 429 [Cal.
1996], cert. den., 117 S. Ct. 299 [1996].)

Second, their reliance on Del Monte Dunes
(Lingle 32; US 27) is misplaced. There, this Court dealt
with Dolan's “rough proportionality” component, not the
Nollan/Agins issue of “substantial advancement.” In that
context, the Court said that it had not yet applied the
rough proportionality test beyond the exaction context
(526 U.S. at 702), but never said that it would be
improper to do so. In any event, assuming that the
rough proportionality concept is restricted to exactions,
nothing in the Court's jurisprudence suggests that the
entire first prong of Agins is so restricted.

Third, both before and after Del *!-"te Dunes,
the Court has stressed the proper role of proportionality
analysis in judging the validity of legislative responses
to perceived problems. (See U.S. v. Vajakajian, 524
U.S. 321, 324 [1998]; Florida Prepaid Postsecondary
Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627,

25

substitute due process, whose standard they gloss over
as “rational basis” (US 21, fn. 9), ie., that a regulation is
acceptable if there is some rational basis for it that can
be conjured up by a court after the fact, regardless of
whether anyone who voted on the regulation ever
considered it at all. (E.g., Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 466 [1981].)

But that is not an accurate picture of due process
as it is applied in land use cases. Property owners have
not even had that loose standard applied to their claims.

The Ist Circuit, for example, has held that
substantive due process is virtually unavailable in land
use disputes, saying it has only “left the door slightly
ajar for federal relief in truly horrendous situations.
But . . . the threshold for establishing the requisite ‘abuse
of governmental power’ is a high one indeed.” (Nestor
Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d
32, 45 [1st Cir. 1992]; emphasis added.)'”

The 3d Circuit applies a “shocks the conscience”
standard (United Artists v. Township of Warrington, 316

646 [1999].) Thus, nothing in Del Monte Dunes or any
other of this Court's cases suggests that there is no need
for a close nexus between regulatory means and ends.

Quite the contrary.

‘The 2d Circuit has been called “even more
hostile” to such property owner claims than the Ist.
(Pearson v. City of Grand Blanc, 961 F.2d 1211, 1218
[6th Cir: 1992].)

26

F.3d 392, 400 [3d Cir. 2003]),"* even though that
standard devolved from police actions like Rochin v.
California, 342 U.S. 165 (1952) (forced stomach
pumping) and County of Sacramento v. Lewis, 523 US.
833 (1998) (high speed car chase through residential
neighborhood), which had nothing to do with the more
carefully thought out economic and land use regulations
dealt with in cases like this.

Thus, the regulators’ desire to be thrown into the
briar patch of substantive due proccss (a desire
unthinkable for regulators in the Lochner era) comes
from an evident wish to slide into a form of judicial
review that is exceedingly regulator-friendly.'”

This Court is already on record as seeing “no
reason why the Takings Clause of the Fifth Amendment,

‘8 The validity of the 3d Circuit's standard 1s the
subject of Petitions for Certiorari this Term in Lindquist
v. Buckingham Township, No. 04-681 and Levin v.
Upper Makefield Township., No. 04-500, cert den., 73
U.S.L.W. 3248 (Dec. 13, 2004).

'? Professor Eagle has urged that, if the Court were
to enforce a standard of “meaningful substantive due
process” (Eagle, Regulatory Takings, § 12-2, p. 977 [2d
ed. 2001]; emphasis added), i... review with a
heightened level of actual scrutiny, then such a standard
might provide appropriate constitutional protection. But
that would require more than “rational basis” review and
would certainly not subject property owners to the
‘standards discussed above.

27

—

as much a part of the Bill of Rights as the First
Amendment or the-Fourth Amendment, should be
relegated to the status of a poor relation... ." (Dolan v.
City of Tigard, 512 U.S. 374, 392 [1994].) The Court, in
furtherance of that protection for property owners, has
expressly refused to apply “rational basis” scrutiny to
Takings Clause cases. (Dolan, 512 U.S. at 391.)°

If the first prong of Agins is eliminated, the rights
protected by the Takings Clause will become poor
relations, indeed. If regulators need do no more than
appear in court and suggest possible reasons that might
have supported their regulations, then the regulators will
always prevail. That's not a rule of law, but an imperial
ukase that ill serves our Constitution. As the Court put
it, “such a justification can be formulated in practically
every case" making review of even expressly stated
regulatory intentions “a test of whether the legislature
has a stupid staff." (Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1025, fn. 12 [1992].)

That is why the Court was quite explicit when it
remanded Lucas so the State could defend its legislation.
The Court “emphasized{d] that to win its case, South
Carolina must do more than proffer the legislature's
declaration . . . or its conclusory assertion... ." (Lucas,
505 U.S. at 1031.) A fortiori, if the legislature's actual

20

The reason for that should be apparent: a
regulation can be perfectly “rational” or “reasonable” but
still not advance legitimate state interests one iota and
may, in fact, be counterproductive. (See, e.g., Hodel v.
Irving.) The courts below found that to be the case here.

28

formulation of a supposed justification is insufficient to
validate legislation challenged under the Takings Clause
—- unless supported by facts produced at trial — then
conjectured rationalizations under a “rational basis”
review should not suffice either.

Reliance on U.S. v. Carolene Prods., 304 U.S.
144 (1938) (Lingle 38; Govt. Organizations 10)
overlooks that opinion's express recognition that any
presumption of regulatory regularity is "narrower .. .
when legislation appears on its face to be within a
specific prohibition of the . . . first ten amendments.”
(304 U.S. at 152, fn. 4.) That is this case.

The ultimate goal in a takings inquiry is “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.” (Armstrong v. U.S.,
364 U.S. 40, 49 [1960].) The way to achieve that goal is
for a court to scrutinize the burden imposed on the
property owner and measure, as Penn Central instructs
(438 U.S. at 127), whether the means chosen are
necessary to the desired end, and whether they will
achieve that end.

CONCLUSION

The Takings Clause standard being challenged
here is one that this Court has applied and discussed for
decades. It has consistently inquired whether
regulations “substantially advance a legitimate state
interest,” upholding some while striking down others.

29

The standard has worked well, allowing (as in
Del Monte Dunes) an impartial examination of the
workings of a regulatory scheme to determine whether it
has the capacity to accomplish its goals or whether, in
the alternative, it is an unnecessary imposition on the
property owner (as the Court instructed lower courts to
investigate in Penn Central).

The major item of concern in this case is not the
legal theory of liability, but the standard of review of
governmental action. The positions are starkly laid out.
The regulators want virtual free rein, under a standard
that — in the Court's words — only “a stupid staff"
could fail to satisfy. Property owners, by contrast, ask
for a standard that allows them to demonstrate a
regulation's constitutional failure.

NAHB prays that the decision be affirmed, with
an opinion explaining the continuing vitality of the
Agins formula for enforcing the Takings Clause.

Respectfully submitted,

Duane J. Desiderio Mi-hael M. Berger*

The National Association Manatt, Phelps & Phillips
of Home Builders *Counsel of Record

1201 15th Street, N.W. 11355 W. Olympic Blvd.
Washington, D.C. 20005 Los Angeles, CA 90064
(202 266-8200 (310) 312-4185

Attorneys for Amicus Curiae
The National Association of Home Builders

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0032%3A22. Public record. Not legal advice.