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

No, 04-340 JAN 2 4 2065

IN THE

SUPREME COURT OF THE UNITED STATES

SAN REMO HOTEL, L.P., THOMAS FIELD,

ROBERT FIELD, AND T & R INVESTMENT CORP.,

Petitioners,

CITY AND COUNTY OF SAN FRANCISCO,

DEPARTMENT OF CITY PLANNING,

CITY PLANNING COMMISSION, BOARD OF

PERMIT APPEALS, BOARD OF SUPERVISORS

OF THE CITY AND COUNTY

OF SAN FRANCISCO,

Respondents.

ON WRIT OF CERTIORARI TO

IHE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICI CURITAE OF EVANDRO S. SANTINI

AND SANTINI HOMES, INC.

OF VERNON, CONNECTICUT,

IN SUPPORT OF PETITIONERS

SAN REMO HOTEL, L.P., ET AL.

EVERETT E. NEwron

MURTHA CULLINA LLP

CityPlace I

185 Asylum Street

Hartford, Connecticut

06 103-3469

(860) 240-6000

Counsel for Amici Curiae,

Evandro S. Santini and

January 24, 2005 Santint Homes, Inc.

Washington. OC * THIEL PRESS «© (202) 328 3286

1g 2 CLERK

(1)

TABLE OF CONTENTS

Interest Of Evandro S. Santini And Santini

Argument:

This Court Should Overrule The Williamson

County State Court Requirement Or, In The

Alternative, Clarify That Required State Court

Litigation Does Not Extinguish, Preclude, Or

Limit A Subsequent Federal Claim.........

TABLE OF AUTHORITIES

Federal Cases:

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

Armstrong v. U.S., 364 U.S. 40 (1960)........

City of Monterey v. Del Monte Dunes, 526 U.S.

gt: PPeeererrrceprrrery rere y er.

Dodd v. Hood River County, 59 F.3d 852 (9th

f. .

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

First English Evangelical Lutheran Church of

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

„/ „

Hughes v. Washington, 389 U.S. 290 (1967)

Lucas v. South Carolina Coastal Council, 505

D..

59 4 21

Mills v. Rogers, 457 U.S. 291 (1982̃˖¹ .: 3

Palazzolo v. Rhode Island, 533 U.S. 606 (2001). 12

(ii)

Federal Cases, continued:

mi J

Penn Central Transport Co

. New York Ci

438 U.S. 104 (1978)........... 5 5 passim

Prune Yard Shoppin ne, 04708. 94.

g Ctr. v. Rob

...... 1 3

Santini v. C onnecticut Hazardous Waste 1

one Service, slip op. No. 3:01 cv 563 (WWE)

Aug. 27, 2002, (D. Conn.), affirmed on other

grounds, 342 F.3d 118 (2d Cir. 2003), cert.

denied, 73 U.S.L.W. 3211 . 1. 2, 6, 8

Snider v. Excelsior Sprin 7

„1

r. 1996)...... b e

6522 22 2 6 „ „%%% % 3

Willamson County Regional Planning Commis-

ston v. Hamilton Bank, 473 U.S, 172 (1985)... passim

State Cases:

Melillo v. New Haven, 732 A.2d 133 (1999)... 3,9

Santini v. Connecticut Haz

, ardous Waste Manage-

ment Service, 739 A.2d 680 (Conn. 1999),

cert. denied, 530 U.S, 1225 (2000) ;

State Constitutional Pro vision:

Connecticut Constitu tion, Article I, 811

l

BRIEF OF EVANDRO S. SANTINI AND

SANTINI HOMES, INC. AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

SAN REMO HOTEL, L.P., ET AL.

Evandro S. Santini and Santini Homes, Inc. of Vernon,

Connecticut, have received the parties’ consent to file

this brief as amici curiae through blanket letters of con-

sent filed with the Clerk of the Court.

INTEREST OF EVANDRO S. SANTINI

AND SANTINI HOMES, INC.

Evandro Santini has built homes and apartments for

37 years in the suburbs of Hartford, Connecticut. After

immigrating to the U.S. in 1957 at age 17, he served sev-

eral apprenticeships in the building trades. He founded

Santini Homes, Inc. in 1970, and has been its president

ever since.

From 1994 through 2004, Mr. Santini and his com-

pany (hereinafter Santini“) litigated through the Con-

necticut courts and then the federal courts a temporary

taking case that vividly illustrates what commentators

and courts have referred to as the Williamson County

“conundrum” and its jurisdictional “Catch 22.“ Santini

v. Connecticut Hazardous Waste Management Service,

251 Conn. 661, 739 A.2d 680 (1999), cert. denied, 530

U.S. 1225 (2000); slip op., No. 3:01 CV 563 (WWE),

August 27, 2002 (D. Conn.), affirmed on other grounds,

I Pursuant to Rule 37.6 of this Court, the amici state that no

counsel for any party authored any part of this brief, or paid for it

No one other than the amici or their counsel have m a mone-

tary contribution to its preparation.

2

342 F.3d 118 (2d Cir. 2003), cert. denied, 73 U.S.L.W.

3211 (2004). Simply summarized, because Santini

adhered to the “‘state-court-first” requirement created by

this Court in Williamson County Regional Planning Com-

mission v. Hamilton Bank, 473 US. 172 (1985), it

took ten years to obtain a ruling on the merits of his

Fifth Amendment taking claim.

required of Santini illustrates wh

should be overruled or at least clarifi

The tortuous path

y this requirement

ed and mitigated.

Santini's claim arose from a public agency’s designa-

tion of his under-construction residential subdivision as

a finalist for condemnation as a disposal site for low-

level radioactive waste. As of June 9, 1991, Santini was

building a fully-approved residential subdivision on 74

acres in Ellington, Connecticut. He had been working

on the project for six years and had invested $5 million

and borrowed $4 million to finance it.

The Connecticut Hazardous Waste Management Ser-

vice (“Service”) is a public instrumentality and political

suvdivision of the State. Its principal duty is to oversee

the handling and disposal of radioactive materials, includ-

ing the identification, acquisition, and construction

within Connecticut of a disposal facility for low-level

radioactive waste.

On June 10, 1991, after two years of secret delibera-

tions, the Service announced that the Santini develop-

ment was one of three finalist sites for condemnation

for public use as a disposal site for in-state generators

(utilities, hospitals, universities, and industrial compan-

ies) of low-level radioactive waste. Shortly thereafter,

the Hartford Courant newspaper displayed on its front

page a map of the Santini subdivision next to the sym-

bol for radioactivity.

3

Residents and public officials in Ellington = an

rounding towns reacted to the eS an an

tests and civil disobedience. In — ba ; a

necticut’s governor proposed revocation = — *

mandate to condemn an in-state site, in favor 41

a municipality to volunteer. The ———— —

months to adopt the revocation, which was sober

law on May 5, 1992. By this time, re —

use of the Santini development had been extinguished,

and this continued until at least June 1993.

Since, under Williamson County, Santini ** L

bring a threshold taking claim in federal = ee

(in March 1994) in state court under the a —

of the Connecticut Constitution, Article I, *

property of no person shall be taken for — —

without just compensation therefor”). In 4 —

sion, the Connecticut Supreme Court con 1 *

accuracy of Santini's 1994 choice of forum = ~ bee

liability, holding under Williamson County — a —

Amendment taking claim cannot be joined with a —

law taking claim that is brought in state 8

Melillo v. New Haven, 732 A. 2d 133, 143 n.2 ( 5

i is of his

Notwithstanding the exclusive state law basis o f

taking claim, Santini expressly argued that * *

icut courts, when interpreting the state *** 7 =

must afford no less protection than is p pets 2

Takings Clause of the Fifth Amendment to the — —4

stitution. Citing, for example, Mills v. 2 — —

291 (1982), and Prune Yard Shoppin beak — — —

U.S. 74 (1980), Santini explained that oo + Su

Court interpreting the Bill of Rights furnish etl

for protection of civil rights, and thus in ae

the state’s taking clause, the Connecticut cou eeded

—

4 5

to adhere to Fifth Amendment tests and standards. In

rejected as irrelevant the takings jurisprudence of this

making this argument, Santini reviewed how Connec-

Court:

ticut’s two takings tests, which date to the 1960’s and

1970’s, were inconsistent with current federal standards

and, in particular, with this Court’s takings test as set

forth in Penn Central Transport Co. v. New York City,

438 U.S. 104 (1978), Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992), and their progeny.

In November 1999, the Connecticut Supreme Court,

in a 5-2 en banc decision, affirmed a trial court denial

of Santini’s taking claim on the basis of two state law

principles that were plainly inconsistent with this Court's

takings jurisprudence, 739 A.2d 680 (1999). The court

framed the dispositive issue as Whether mere govern-

ment planning may constitute a taking, in the form of

an inverse condemnation.” It held that “mere govern-

mental planning and temporary steps in anticipation of

condemnation” do not, as a matter of Connecticut law,

constitute a taking. It further held as a matter of state

law that since the Service had never reached a fixed

and irreversible intent“ to condemn the Santini prop-

erty, no taking had occurred. The court cited First Eng-

lish Evangelical Lutheran Church of Glendale v. Los

Angeles County, 482 U.S. 304, 320 (1987), as stating

an analogous, one-factor taking test and a conclusion

that “depreciation in value of the property by reason

of preliminary [government] activity” cannot consti-

tute a taking.

Because it had resolved Santini’s taking claim on these

state law bases, the court noted, 739 A.2d at 688 n.19,

that it was “‘not necessary to discuss the plaintiffs’ fac-

tual claims“ of the economic impact of the June 1991

siting designation on their property. The court then

[T]he plaintiffs argue that we may not —

the Connecticut Constitution so as to — phe

protection for individual rights in the use . L 0

erty than What they refer to as a — 1

tional standard for protection of indivi — —

1 . es 12 *

»In the pial w, U

— or that the federal a yen

“minimum, national” standards mea . *

f itution is interprete

oe aaa — state constitution must

—— to grant at least the same level of =

tection as that granted by the federal 8

What is meant by that doctrine, however, is

vant to this case.

739 A.2d at 688 n.20 (emphasis added). = N —

not explain further. Finally, the 9 ae aa

relevance of Dolan v. City of Tig ‘ ol 5

(1994). Lucas, and Penn Central because n

N 2d at

involves mete planning by the government. 739 A. 2d a

689. 3 3 —

Santini petitioned this Court for * of certiorari

and was denied. 530 U.S. 1225 (2000).

2 me Questions Presented were:

liamson County Regi he 6

nonetheless adhere to of

82 Ry — interpreting the Takings Clause

takings

[footnote continued]

6

Having satisfied the Williamson County state court

requirement — after six years of litigation — Santini then

brought a Fifth Amendment taking claim in federal dis-

trict court in early 2001. On August 27, 2002 (in an

unreported slip opinion, No. 3:01 cv 563 (WWE)), the

court granted the Service’s Motion to Dismiss for lack of

Jurisdiction. After reciting undisputed facts regardin

Santini’s development during 1984-91, his vested —

erty rights, and his investment: backed expectations aa

to June 1991, the court turned to the Rooker-Feldman

doctrine, describing it as depriving a federal court of sub-

ject matter jurisdiction if “the exercise of jurisdiction

over that case would result in the reversal or modification

of a state court judgment.” Rooker-Feldman’s prohibi-

tion, it said, reached not only claims expressly raised or

decided in the state court, but also all claims “‘inextric-

ably intertwined,” with the scope of “intertwined” being

determined by applyin -

g the elements of

collateral estoppel. el res judicate and

The court then shifted its focus to Williamson County

and observed that Federal law demarcates no clear

approach to determine the preclusive effect of a previous

2. Whether the Connecticut Supreme Court, adjudicati

a claim that a state agency economically idled uel

properly on which a subdivision was being built by designat-

ing that land as a low-level radioactive waste disposal facility

violated the Takings Clause of the Fifth Amendment by dis.

missing as “irrelevant” the standards established by this

— in Penn Central Transportation Company v. New

— City, First English Evangelical Lutheran Church of

ilendale v. Los Angeles County, and Lucas v. South Car

lina Coastal Council, and by holding that because the —

— demonstrated a “fixed and irreversible intent“ to con-

emn, its action was mere government planning“ and could

never be a temporary taking as a matter of law.

7

state court action instituted . . . in order to satisfy [its]

ripeness requirement. It reviewed holdings of the

Tenth and Eleventh Circuits that a Fifth Amendment

claim must be raised in the state court proceedings. It

then recited the contrary view of Dodd v. Hood River

County, 59 F.3d 852 (9th Cir. 1995), that a federal tak-

ing claim may be brought after state court proceedings,

but that the federal court must then determine whether

the state court provided a determination “equivalent”

to a federal adjudication, so as to invoke... issue pre-

clusion.” The district court chose to follow Dodd. How-

ever, in conducting this search for an equivalent adjudi-

cation, the district court focused primarily on whether

the Connecticut Supreme Court had engaged in a good

faith effort to address the merits of the claim. It did

not conduct a comparison of whether the Connecticut

Supreme Court’s 1999 adjudication of Santini's state law

claim had employed or adhered to this Court’s three-

factor Penn Central analysis or its categorical Lucas form-

ulation. The district court was also “unpersuaded . . . that

collateral estoppel or Rooker-Feldman is inapplicable

in light of the state court’s failure to consider the tests

set forth in Lucas and Penn Central.”

Santini appealed. In briefs and arguments in the U.S.

Court of Appeals for the Second Circuit, Santini argued

principally that because had had no opportunity to liti-

gate a Fifth Amendment claim in the state court, and

because the Connecticut courts assuredly did not provide

him with the equivalent of an adjudication under Penn

Central and Lucas, the federal district court erred in dis-

missing the case on jurisdictional grounds.

In August 2003, the Second Circuit reversed the dis-

trict court on the jurisdictional issues, accepting Santini’s

argument that he had proceeded in state court involun-

tarily and had been prohibited in that forum from litigat-

ing his Fifth Amendment claim. 342 F.3d 118 (2003).

However, the Second Circuit reached the merits, holding

that the Service’s 1991 actions were precondemnationꝰ

activity that had not caused a taking. Santini petitioned

— Court for a writ of certiorari,“ which was denied in

004.

By the time the Santini case re

V N ached the Second Circui

events giving rise to the taking claim had occurred ten

years earlier, Among other things, the defendant's appraiser had

died, and had the Second Circuit remanded to the trial court for an

evidentiary hearing on the merits, that hearing would have exam-

ined events occurring more than a decade earlier.

*The Questions Presented were:

1. Did the Second Circuit err in int i ;

. erpreting Agins v.

Tiburon, 447 U.S. 255 (1980), and First Evangelical Lash.

eran Church of Glendale v. Los Angeles County, 482 U.S

304 (1987), as holding that “precondemnation activity” is

categorically exempt from liabili i

of the Fifth Amendment? 9

2. Did the Second Circuit contravene sev isi

this Court by holding that an agency's —

tion of an under. construction subdivision for public use as a

—— waste disposal facility, which action continued

or eleven months and undisputedly reduced the property's

value from approximately $2 million to zero for at least 24

months and undermined a $5 million equity investment, was

not a taking on the grounds that it was incomplete “regula-

tory” action of “short duration,” and protecting the con-

demnation process from liability was “sound public policy?”

ARGUMENT

THIS COURT SHOULD OVERRULE THE WILLIAMSON

COUNTY STATE COURT REQUIREMENT OR, IN THE

ALTERNATIVE, CLARIFY THAT REQUIRED STATE

COURT LITIGATION DOES NOT EXTINGUISH, PRE-

CLUDE, OR LIMIT A SUBSEQUENT FEDERAL CLAIM.

The Santini case provides a compelling example of how

the Williamson County state court requirement consigns

a property owner who seeks adjudication of a federal

taking claim to a long and tortuous path of litigation that

few property owners can sustain, and which effectively

denies the protection of the Takings Clause of the Fifth

Amendment.

In bringing his taking claim, Santini followed William-

son County. He brought his claim in state court under

the Takings Clause of the Connecticut Constitution.

When he brought his case in state court m 1994, San-

tini’s pleading options were unclear. On the one hand,

Williamson County, on its face, appeared tg say that a

federal taking claim did not then exist, which would

mean logically that it could not have pleaded, reserved,

or stayed. On the other hand, the Connecticut Supreme

Court’s takings jurisprudence had not been updated to

reflect Penn Central or Lucas, and thus to proceed

under the state constitution appeared to require arguing

that the state court must overrule several of its earlier

decisions. Santini chose to plead the state constitution

and argue that the takings cases of this court provided

the floor for interpreting the state’s takings clause. San-

tini’s pleading choice in this regard was subsequently

validated by this Court in City of Monterey v. Del Monte

Dunes, 526 U.S. 687, 710 (1999) (a Fifth Amendment

taking claim did not accrue” until state court proceed-

ings terminated), and in the Connecticut Supreme Court's

10

previously-mentioned Melillo decision (plaintiffs were

“not entitled to consideration of [a Fifth Amendment

taking claim] because of the existence of a legally suf-

ficient procedure, under [the Takings Clause of the Con-

necticut Constitution”] ), 732 A.2d at 143 n.28.

The Connecticut Supreme Court opinion, however,

affirmatively violated this Court’s Fifth Amendment

Takings Clause jurisprudence in several ways. It rejected

the principle that decisions of this Court interpreting the

Fifth Amendment furnish minimum national standards

for the analysis and adjudication of takings claims brought

in state court under available state remedies. It dismissed

as irrelevant, without explanation, the three-factor Penn

Central test, First English’s recognition of temporary

takings, and the Lucas categorical formulation of a tak-

ing resulting from a total loss of economic use. Because

of its application of state law principles, the Connecticut

court found it unnecessary to analyze the economic

impact of the Service’s action on the Santini property;

this inquiry, of course, constitutes the first factor of the

Penn Central analysis and the starting point of the Lucas

test. The state court declined to employ the princi-

ple of Armstrong v. U.S., 364 US. 40, 49 (1960), that

the purpose of federal Takings Clause is to avoid having

an individual bear an economic burden that should, in

fairness, be borne by the general public. In addition, the

Connecticut opinion employed a governmental “intent

to condemn standard,” in direct contradiction to such

cases as Hughes v. Washington, 389 U.S. 290, 298 (1967)

(government's intent not relevant to takings analysis).

Further, it stated in dictum, that all takings claims

require evidence of complete economic loss, thereby

contravening several decisions of this Court that recog-

nize taking claims based on partial economic loss. Pin-

11

ally, by employing an intent standard, the ee

court effectively eliminated inverse condemnation clai

in Connecticut because an inverse taking, by g-

arises from a total or severe impact on economic use that

has occurred without intent to formally condemn.

Thus, it is beyond argument that Santini could —

have brought his Fifth Amendment claim in a

court, but when Santini litigated his bey ve le o

N edly did no

court under state law, he most assur

implici djudication that was con

expressly or implicitly, an a

— with this Court's Fifth Amendment standards.

Worse, the federal district court dismissed 2

Fifth Amendment Takings Clause claim for 3 =

jurisdiction. Although the Second Circuit reverse :

‘urisdictional dismissal and addressed the merits, it too

Santini ten years and hundreds of thousands of e

to achieve that result. It should also be noted that in t :

Second Circuit, Santini was forced to devote rb.

his appeal brief to the jurisdictional issues, and 8 5

the Second Circuit sua sponte reached and decide : “

merits, it did so based on briefs that barely touc

upon the merits (and as a likely result, it misstated some

critical testimony and misapprehended a portion of San-

tini’s theory of liability for a taking).

In light of his experience as a litigant, Santini respect-

fully offers the following observations and prescriptions

for resolving the issue before this Court:

1. The root of the problem arising from Williamson

County’s state court requirement is whether a ~~

proceeding in state court as required by this Court 8

decision is required to raise, permitted to raise, or es

hibited from raising a Fifth Amendment taking — n

interpreting Williamson County, the federal courts have

12

been inconsistent. Compare, for example, this Court’s

statement in Del Monte Dunes that a federal taking

claim does not accrue” until state proceedings have been

completed, with its opinion in Palazzolo v. Rhode Island,

533 U.S. 606, 615 (2001), in which the Rhode Island

courts addressed a taking claim brought under the federal

constitution, but this Court on appeal had no comment

on that pleading choice.

2. The Williamson County state court requirement is

based on the erroneous premise that a Fifth Amendment

claim for a taking without just compensation does not

come into existence until a state court has denied a tak-

ing claim brought under state law. If the operative facts

give rise to a justiciable taking claim under state law,

they must create at the same time a Fifth Amendment

taking claim. The pleading basis and the forum may be

different, but the “claim” necessarily exists in both

forums.

3. The Williamson County state court requirement

should be overruled because (a) it is based on an erron-

cous assumption regarding when a federal taking claim

accrues, as explained above; (b) it has caused confusion

and inconsistency for litigants and judges; (c) it requires

property owners to engage in lengthy, expensive, sequen-

tial litigation in order to vindicate a federal civil right;

and (d) at least in those states where the state courts

refuse to adhere to this Court’s takings jurisprudence as

a minimum standard of civil rights protection, it pro-

hibits property owners ever from obtaining an adjudica-

tion of their Fifth Amendment rights, as the Santini

case illustrates.

4. The Ninth Circuit’s “functional equivalent“

approach is not a viable procedure, because it not only

—

13

preserves the requirement of sequential litigation. =

potentially lengthens that litigation by requiring : e

first issue in any subsequent federal case to be whether

the state courts have provided an adjudication that is

equivalent to federal standards.

5. In the alternative, if the Williamson County state

court requirement is not overruled, the megs curiae res-

pectfully suggest that this Court clarify 24 1

i : i jurisprudence furnishes .

pages» ge Swe for the adjudication

of a taking claim under state law; ? :

ion or similar procedure |

; oe — federal claim does not

yet exist); and | | :

e the Rooker-Feldman doctrine, Calm preclusion, an

issue preclusion are inapplicable. | a

if the state court requirement is to be

ee — it should be clear that minimum federal

standards apply, and the right to bring a ert

federal claim is not procedurally extinguished, limited,

or burdened by satisfying that requirement.

i i is, that where a

5 tion that might be recognized is,

pean fren — a takings case on a state law ground —_

28 of a protected property interest) that effectively —

adjudicati of a Fifth Amendment claim, a federal c —

— Feldman because reopen

2 2 under Rooker-

decline jurisdiction ate to relief

ould be a necessary

the state court judgment w Snider v. Excelsior Springs, 154 F.3d

ederal court. See, e. g. ' :

825 (8th Cir. 1998) (state proceedings unrelated to taking claim

had extinguished property interest).

14

CONCLUSION

Taking cases are difficult to litigate and difficult to

win. With the daunting substantive hurdles, restrictions,

and standards that takings plaintiffs must overcome, it

is apparent that overruling the Williamson County state

court requirement, or clarifying it as suggested above,

will not “open the floodgates” to the federal courts.

Rather, those with a viable taking claim will decide

whether and how to pursue it based on an assessment

of its merits, rather than the specter of an endless pro-

cedural gauntlet.

Respectfully submitted,

EVERETT E. NEWTON

MURTHA CULLINA LLP

CityPlace I

185 Asylum Street

Hartford, Connecticut

06 103-3469

(860) 240-6000

Counsel for Amici Curiae,

Evandro S. Santini and

Santini Homes, Inc.

January 24, 2005