# Amicus Curiae Brief — San Remo Hotel, LP v. City and County of San Francisco

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0037%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 323

## Text

'

| Supreme Court US~—
; ;

FILER
j@ | NOV 1 2 2004
No. 04-340 OFFICEOFTHECLERK |
In the
Supreme Court of the United States
+

SAN REMO HOTEL, L.P., THOMAS FIELD,
ROBERT FIELD, and T&R INVESTMENT CORP..,
Petitioners,
v.

CITY AND COUNTY OF SAN FRANCISCO,
DEPARTMENT OF PLANNING, CITY PLANNING
COMMISSION, BOARD OF PERMIT APPEALS,
BOARD OF SUPERVISORS OF THE CITY
AND COUNTY OF SAN FRANCISCO,

Respondents.

+

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

~~

BRIEF AMICUS CURIAE OF PACIFIC LEGAL
FOUNDATION AND NATIONAL ASSOCIATION OF

REALTORS IN SUPPORT OF THE PETITIONERS wae

+ NOY See, e.g., Daniel v. County of Santa Barbara, 288 F.3d 375, 381
(9th Cir.), cert. denied, 537 U.S. 973 (2002); US West
Communications v. MFS Intelenet, Inc., 193 F.3d 1112, 1126 (9th
Cir. 1999), cert. denied, 530 U.S. 1284 (2000); San Remo Hotel v.
City and County of San Francisco, 145 F.3d 1095, 1101-02 (9th Cir.
1998).

* Professor of law at the University of Washington in St. Louis,
Missouri, and a prolific author on the law of zoning and land use

planning.

7

The importance of this problem cannot be overstated.
Professor Steven J. Eagle described the “notion of ‘ripeness’”
as “the greatest barrier to the protection of property rights.”
State Approaches to Protecting Private Property Rights:
Hearing Before the Subcomm. on the Constitution of the House
Comm. on the Judiciary, 105th Cong. (1997) [Available on
Westlaw, 1997 WL 626959 (F.D.C.H.)] (Statement of Steven J.
Eagle, Professor of Law, George Mason University School of
Law). °

A. The Williamson County Ripeness
Requirements Must Not Preclude
Litigation of Federal Takings Claims
from the Federal Trial and Appellate Courts

In Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. at 195, this Court
established a test for determining if a takings case is ready to be
heard in federal court. First, administrative action must be
final,° and second, a plaintiff must have sought “compensation
through the procedures provided by the State.” Jd. Only the
second requirement is relevant to the instant case. And as to
that requirement, this Court explained as follows:

* Professor Eagle emphasized that he was not referring to the

normal requirements that a matter involves a case or
controversy over which the court has jurisdiction or the
normal prudential requirements. Rather, the Supreme Court
has developed “a special ripeness doctrine applicable only to
constitutional property rights claims.” Timothy V. Kassouni,
“The Ripeness Doctrine and the Judicial Relegation of
Constitutionally Protected Property Rights,” 29 Cal. W. Rev.
1, 2 (1992).

Id.

® “(T]he finality requirement is concerned with whether the initial
decisionmaker has arrived at a definitive position on the issue that
inflicts an actual, concrete injury ....” Jd. at 193.

8

[B]ecause the Fifth Amendment proscribes takings
without just compensation, no constitutional
violation occurs until just compensation has been
denied. The nature of the constitutional right
therefore requires that a property owner utilize
procedures for obtaining compensation before
bringing a § 1983 action.

Id. at 195 n.13.

Two years later, in First English Evangelical Lutheran
Churcn of Glendale v. County of Los Angeles, 482 U.S. 304,
315-16 (1987), this Court said that the state courts must provide
adequate procedures for recovery of just compensation when
government takes private property. Williamson County and
First English, read together, require that property owners seek
and be denied compensation in state court before bringing a
federal takings claim in federal court. That said, this Court has
not explained how the lower federal courts should resolve the
issue preclusion and claim preclusion questions that can arise
when property owners seek to ripen their federal takings claims
in state court as required by Williamson County.

What should be clear is that the very steps necessary to
ripen a federal takings claim should not serve to bar that claim.
This Court’s language holds out the promise of federal
adjudication of a federal takings claim. In Williamson County,
this Court explained that the takings claim was premature (see,
e.g., Williamson County, 473 U.S. at 185, 187, 194, 196) and
not ripe (see, e.g., id. at 186, 194).

Throughout the opinion, the Court returns to
these twin concepts, emphasizing and reemphasizing
the temporal nature of its holding, repeatedly saying
that land use cases can be ripened and then litigated
in federal court.

9

Michael M. Berger, Supreme Bait & Switch: The Ripeness
Ruse in Regulatory Takings, 3 Wash. U. J.L. & Pol’y 99, 104
(2000) (emphasis added).

In another context, habeas corpus review, this Court
explained that construing a law as ceding authority to interpret
federal law to the states would be an important change in the
Court’s jurisdiction, requiring a clear intent on the part of
Congress to do so. Williams v. Taylor, 529 U.S. 362, 379
(2000). Amici urge this Court to review this case and open the
doors of the federal courthouse to those with federal takings
claims.

B. Federal Courts Must Define the Contours of
Federal Takings Law; That Responsibility
Cannot Be Left to the State Courts

When takings claims ripened through state procedures are
precluded from resolution in the federal courts by claim or issue
preclusion, the federal courts do not contribute to the
development of the law pertaining to Fifth Amendment takings.
State courts will decide when compensation is appropriate and
how it should be measured (see George A. Yuhas, The Ever-
Shrinking Scope of Federal Court Takings Litigation, 32 Urb.
Law. 465, 475 (2000)\. and the only remaining federal court
review is direct review by this Court (see id. at 466). Some
commentators suggest that is acceptable,* but this Court

’ See Berger, Supreme Bait & Switch, supra, at 122 (“Once property
owners submit their claims to state courts, their risk of never seeing
the inside of a federal courthouse is high.”).

* E.g., Thomas E. Roberts, Procedural Implications of Williamson
County/First English in Regulatory Takings Litigation:
Reservations, Removal, Diversity, Supplemental Jurisdiction,
Rooker-Feldman, and Res Judicata, 31 Envtl. L. Rev. 10353, 10354
(2001); Kathryn E. Kovacs, Accepting the Relegation of Takings

(continued...)

10

disagreed in England v. Louisiana State Board of Medical
Examiners. in England, this Court said that appellate review by
the High Court does not provide adequate recourse to those who
want to litigate federal claims in federa: court

It is true that, after a postabstention
determination and rejection of his federal claims by
the state courts, a litigant could seek direct review in
this Court. But such review . . . is an inadequate
substitute for the initial District Court determination
. . . to which the litigant is entitled in the federal
courts. This is true as to issues of law; it is
especially true as to issues of fact. Limiting the
litigant to review here would deny him the benefit of
a federal trial court’s role in constructing a record
and making fact findings. How the facts are found
will often dictate the decision of federal claims. It is
the typical, not the rare, case in which constitutional
claims turn upon the resolution of contested factual
issues. There is always in litigation a margin of
error, representing error in factfinding .... Thus in
cases where, but for the application of the abstention
been by the District Court, a litigant may not be
unwillingly deprived of that determination. The
possibility of appellate review by this Court of a
state court determination may not be substituted,
against a party’s wishes, for his right to litigate his
federal claims fully in the federal courts.

375 U.S. at 416-17 (internal quotations, citations, and footnote
omitted).

* (...continued)

Claims to State Courts: The Federal Courts’ Misguided Attempts to
Avoid Preclusion Under Williamson County, 26 Ecology L.Q. 1, 34-
47 (1999).

Er eee

—_ Tc — —

11

England is an abstention case, not a takings case, but this
Court’s words are equally relevant to Fifth Amendment takings
cases.

[A]s the Court acknowledged in abstention cases, it

now seems necessary, as the lowest level of

protection affordable to Fifth Amendment property

rights, for the Court to acknowledge that in the

unique class of land use ripeness cases a trial in state

court may be a precondition designed to weed out

the cases where relief is granted by state law.

Obtaining state court relief may moot the federal

issue, but unsuccessful state court litigation “may not

be substituted, against a party’s wishes, for his right

to litigate his federal claims fully in federal courts.”
Berger, Supreme Bait & Switch, supra, at 129-30 (quoting
England v. Louisiana State Board of Medical Examiners, 375
U.S. at 417). See Barry Friedman, Under the Law of Federal
Jurisdiction: Allocating Cases Between Federal and State
Courts, 104 Colum. L. Rev. 1211, 1270 (2004) (Preclusion law
should provide no more of an obstacle when litigating a takings
claim than it did in England itself.).

Far more is involved than a plaintiff s desire to litigate his
or her case in federal court: an interpretation of Williamson
County that cuts lower federal courts out of federal takings
cases ignores the distinct roles of the Federal Constitution and
state constitutions. The United States Constitution “prescribes
a floor below which protections may not fall, rather than a
ceiling beyond which they may not rise.” United States v.
Hammad, 858 F.2d 834, 839 (2d Cir. 1988), cert. denied, 498
U.S. 871 (1990). State constitutions can provide protections for
civil liberties that are more expansive than those provided by
the United States Constitution. Prune Yard Shopping Center v.
Robins, 447 U.S. 74, 81 (1980). Amici PLF and National
Association of Realtors urge this Court to act now so that the

12

lower federal courts can set the floor for and define the contours
of federal takings law.

APPLICATION OF DOLAN’S STANDARD
OF “ROUGH PROPORTIONALITY”
CANNOT DEPEND ON THE METHOD
BY WHICH EXACTIONS ARE IMPOSED

As Petitioner and Amicus National Association of Home
Builders (NAHB) ably describe, there is a nationwide split of
authority on the question of whether the heightened standard of
judicial scrutiny articulated in Dolan v. City of Tigard, 512 U.S.
374, applies to legislatively adopted exactions. See petition at
11-12; and amicus curiae brief of NAHB. In California, the
“rough proportionality” standard of scrutiny described in Dolan
does not apply to legislatively imposed exactions. The
California Supreme Court adopted a bright-line test: the Dolan
standard of scrutiny applies to exactions imposed on an
individual and discretionary basis, and a rational basis standard
applies to generally applicable, legislatively formulated
exactions. Ehrlich v. City of Culver City, 911 P.2d 429, 444
(Cal.), cert. denied, 519 U.S. 929 (1996).’

° See San Remo Hotel L.P. v. City and County of San Francisco, 41
P.3d at 104-05, App. at 139a (“[A] housing fee . . . assessed under
the [San Francisco ordinance] stands in sharp contrast to the
recreational facilities replacement fee we found subject to heightened
scrutiny in Ehrlich.”); Santa Monica Beach, Lid. v. Superior Court
of Los Angeles County, 968 P.2d 993, 1002 (Cal. 1999) (The
standard of scrutiny in Nollan and Dolan do not apply. “[A]
different standard of scrutiny would apply to development fees that
are generally applicable through legislative action.”); Landgate, Inc.
v. California Coastal Commission, 953 P.2d 1188, 1198-99 (Cal.),
cert. denied, 525 U.S. 876 (1998) (A more deferential standard of
judicial review is appropriate in this case where neither conveyances

(continued...)

ee a ee ee

ETO 8

— —_ ow ae

13

A. The Risk of Government Extortion
Does Not Disappear When Exactions

Are Imposed Legislatively

In Ehrlich, the California Supreme Court opined that
heightened scrutiny is not required when analyzing the
constitutionality of legislatively formulated exactiors, because
“the heightened risk of the ‘extortionate’ use of the police
power to exact unconstitutional conditions is not present.”
Ehrlich, 911 P.2d at 444. Other state courts followed suit. See,
e.g., Rogers Machinery, Inc. v. Washington County, 45 P.3d
966, 982 (Or. Ct. App. 2002), cert. denied, 538 U.S. 906
(2003) (Dolan only applies “with the sort of governmental
leveraging that can arise in case-by-case adjudicatory
imposition of development conditions.”); Krupp v.
Breckenridge Sanitation District, 19 P.3d 687, 696 (Colo.
2001) (“One critical difference between a legislatively based fee
and a specific, discretionary adjudicative determination is that
the risk of leveraging or extortion on the part of the government
is virtually nonexistent in a fee system.”); and Home Builders
Association of Central Arizona v. City of Scottsdale, 930 P.2d
993, 1000 (Ariz.), cert. denied, 521 U.S. 1120 (1997) (“The
California court suggested that the Dolan analysis applied to
cases of regulatory leveraging that occur when the landowner
must bargain for approval of a particular use of its land.”).

The fact is that the risk of government extortion does not
disappear when exactions are imposed by legislation of general
applicability. See Inna Reznik, The Distinction Between

® (...continued)

nor individualized development fees are at issue.); and Kavanau v.
Santa Monica Rent Control Board, 941 P.2d 851, 867 (Cal. 1997),
cert. denied, 522 U.S. 1077 (1998) (Nollan and Dolan do not apply
because “rent control neither requires a physical dedication nor
amounts to an individual and discretionary development fee.”) /d. at
868 n.1 (Mosk, J., concurring).

14

Legislative and Adjudicative Decisions in Dolan v. City of
Tigard, 75 N.Y.U. L. Rev. 242, 251 (2000) (“The extortion and
inequitable economic burdens that local governments
potentially impose on landowners through administrative
processes can occur just as easily in the legislative context.”)
Id. at 267. Indeed, it is highly probable that grossly
disproportionate exactions will result from broadly applicable,
generalized exaction programs. Local legislative bodies acting
in their legislative capacity may be more likely to use the police
power to exact unconstitutional conditions than in the
adjudicative setting. See Reznik, supra, at 270-72. Those types
of programs do not allow government to consider widely
varying individual circumstances, and do not provide a means
to accommodate those who do not fit within a program’s
general categories.

B. The Political Process Provides Inadequate
Protection from Extortionate Exactions

Parties to adjudicative proceedings have significant
procedural rights that may enhance equal treatment for
competing interests. Reznik, supra, at 273. But the only
safeguard against legislatively imposed extortionate exactions
is found in the political process. The California Supreme Court
said that

[wJhile legislatively mandated fees do present some
danger of improper leveraging, such generally
applicable legislation is subject to the ordinary
restraints of the democratic political process. A city
council that charged extortionate fees for all property
development, unjustifiable by mitigation needs,
would likely face widespread and well-financed
opposition at the next election.

San Remo Hotel L.P. v. City and County of San Francisco, 41
P.3d at 105, App. at 141a. See Rogers Machinery, Inc. v.

15

Washington County, 45 P.3d at 982, wherein the Oregon Court
of Appeals cited the quoted language.

While the democratic political process may, as the
California Supreme Court suggested, protect against
“extortionate fees for all property development,” it is doubtful
that the political process would work as efficiently to remove
government officials who impose extortionate fees on only
some forms of property development. The cost of development
exactions is invisible to the majority of voters, and developers
are subject to the kind of majoritarian oppression that affects
seriously outnumbered groups. See Reznik, supra, at 271-72;
and William A. Fischel, Utilitarian Balancing and Formalism
in Takings, 88 Colum. L. Rev. 1581, 1582 (1988).

C. The Legislative-Adjudicative
Distinction Creates Great Uncertainty

The legislative-adjudicative distinction is not a viable
means for determining whether or not to apply Dolan’s “rough
proportionality” standard because it is difficult to pigeonhole
local government action as legislative, administrative, or
judicial. Local governments are not structured under strict
separation of powers principles, and commonly combine these
functions in land use decisionmaking. See Reznik, supra, at
257-61. See also Steven J. Eagle, Symposium: When Does
Retroactivity Cross the Line? : Winstar, Eastern Enterprises and
Beyond: Substantive Due Process and Regulatory Takings: A
Reappraisal, 51 Ala. L. Rev. 977, 1042 (2000) (“The problem
of discerning which statutes are legislative and which are
adjudicative for purposes of a Dolan analysis is apt to be open-
ended and chronic.”).

Inna Reznik authored the most comprehensive article on
the problems encountered when differentiating between
legislative and adjudicative decisions in land use cases. See
Reznik, supra. In the article, Ms. Reznik describes the results
of a survey of 29 cases. She put each case into one of three

16

categories: (1) scheduled exactions (where an amount of
money or land was specified in advance by a legislative body);
(2) negotiated (authorized by a legislative body but individually
determined in response to a specific development proposal); or
(3) not clear. Jd. at 252. The results show a great deal of
confusion among the courts, and an inconsistent application of
the legislative-adjudicative distinction.

Of the cases involving exactions that were scheduled by
the legislative body (those closest to legislative decisions), just
as many courts applied Dolan’s “rough proportionality” test as
refused to apply it because of the belief that Dolan applies only
to adjudicative decisions. Reznik, supra, at 254. In challenges
to negotiated exactions (those closest to adjudicative decisions),
five out of nine applied Dolan’s “rough proportionality”
standard. Jd. at 255. And finally, in nine cases where the court
did not clarify the nature of the exaction, eight out of nine
applied the “rough proportionality” standard. Jd. at 256.

The artificial distinction between fees imposed by
legislative acts and those imposed by quasi-adjudicative acts
creates uncertainty among the courts, property owners, and
local governments. All would benefit from a manageable and
predictable test.

D. The Bright-Line Test Adopted by the
California Supreme Court, and Followed
by a Number of Other State Courts, Does Not
Further the Purpose of the Takings Clause

The Takings Clause of the Fifth Amendment to the United
States Constitution guarantees that private property shall not
“be taken for public use without just compensation.” U.S.
Const. amend. V. In Armstrong v. United States, 364 U.S. 40,
49 (1960), this Court explained that “[t]he Fifth Amendment's
guarantee .. . was designed to bar Government from forcing
some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.” The

-_

17

nexus and rough proportionality requirements ensure that the
purpose of the Fifth Amendment is fulfilled by protecting
property owners from government actions that impact
arbitrarily and unevenly on isolated individuals. See James L.
Huffman, Colloquium on Dolan: The Takings Clause Doctrine
of the Supreme Court and the Federal Circuit: Dolan v. City
of Tigard: Another Step in the Right Direction, 25 Envtl. L.
143, 152 (1995) (“The takings clause . . . protects against this
majoritarian tyranny . . . by insisting that the costs imposed by
government use or regulation of private property are borne by
all to whom the benefits inure.”’).

The nexus and rough proportionality tests of Nollan v.
California Coastal Commission, 483 U.S. 825, and Dolan were
adopted for the express purpose of preventing government from
taking advantage of propertyowners seeking permits to develop
or otherwise use private property. In Nollan, this Court used
the now-famous phrase “‘an out-and-out plan of extortion’” to
describe the California Coastal Commission’s attempt to take
private property without paying just compensation. /d. at 837
(quoting J.E.D. Associates, Inc. v. Town of Atkinson, 432 A.2d
12, 14-15 (N.H. 1981)). See Lambert v. City and County of San
Francisco, 529 U.S. 1045 (2000) (Scalia, Kennedy, & Thomas,
JJ., dissenting to denial of certiorari) (“The object of the
Court’s holding in Nollan and Dolan was to protect against the
State’s cloaking within the permit process ‘“an out-and-out plan
of extortion.” ”). (Citations omitted.)

Legal scholars argue that neither the Fifth Amendment nor
the takings precedents support a legislative-adjudicative
distinction between exactions, and those scholars urge an
integrated doctrine that recognizes the constitutional
equivalency of all exactions. See Huffman, supra, at 150 (Dean
Huffman acknowledges the important procedural implications
of a legislative-adjudicative distinction, but goes on to say that
“it is not at all clear that the distinction should have any
relevance with respect to the substantive protection of property

18

rights. From the point of view of the property owner, the
consequence of a taking is the same whether done by the
legislative, executive, or judicial branches of government. The
Fifth Amendment draws no such distinction.”). See also
David L. Callies, Regulatory Takings and the Supreme Court:
How Perspectives on Property Rights Have Changed from
Penn Central to Dolan, and What State and Federal Courts are
Doing About It, 28 Stetson L. Rev. 523, 575 (1999) (Land
development conditions require a legitimate state interest,
nexus, and proportionality. “These rules extend to exactions
beyond physical dedications even though Nollan and Dolan
were land dedication cases. ... Why should a common
legislative scheme of conditions escape scrutiny if it lacks either
nexus or proportionality? An unconnected or disproportionate
condition is extortionate, regardless.”).

Legislatively imposed exactions have become an
increasingly popular method of funding local projects, and the
distinction between exactions imposed by legislative acts and
those imposed by quasi-adjudicative acts does not further the
Takings Clause’s substantive protection of private property.

CONCLUSION

This Court phrased the Williamson County prerequisites
to federal takings litigation in terms of ripeness. The ripeness
inquiry in a takings claim involves a determination that a
property owner has exhausted all avenues for obtaining
compensation.'’ The ripeness requirements cannot and should
not extinguish the opportunity to litigate in federal court. As
the Second Circuit Court of Appeals recently noted, such a
result “would be both ironic and unfair.” Santini v. Connecticut
Hazardous Waste Management Service, 342 F.3d 118, 130 (2d

‘© Laurence H. Tribe, American Constitutional Law 337 (3d ed.
2000).

19

Cir. 2003), cert. denied, No. 04-142, 2004 WL 2071528 (Oct. 4,
2004).

Equally unfair are the grossly excessive development
exactions that result when courts refuse to apply the “rough
proportionality” standard required by this Court in Dolan v.
City of Tigard. The standard of review in a constitutional
takings claim must not depend on arbitrary 4nd ill-defined
distinctions like the manner by which an exaction is imposed.

Amici Pacific Legal Foundation and National Association
of Realtors respectfully request that this Court grant certiorari

to resolve the important issues raised by the Ninth Circuit
Court’s decision in this case.

DATED: November, 2004.

Respectfully submitted,
RALPH W. HOLMEN MERIEM L. HUBBARD
National Association of Realtors Counsel of Record
430 North Michigan Avenue R. S. RADFORD
Chicago, Illinois 60611 Pacific Legal Foundation
Telephone: (312) 329-8375 3900 Lennane Drive, Suite 200
Facsimile: (312) 329-8256 Sacramento, California 95834

Telephone: (916) 419-7111
Facsimile: (916) 419-7747

Counsel for Amici Curiae Pacific Legal Foundation
and National Association of Realtors

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0037%3A06. Public record. Not legal advice.