# 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%3A23 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 545 U.S. 323 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0037%3A23. Public record. Not legal advice.