Amicus Curiae Brief — Murr v. Wisconsin, 136 S. Ct. 890 (2016) (No. 15-214)

No. 15-214

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Supreme Court af t the United States

JOSEPH P. MURR, et al,,

Petitioners,

v.

STATE OF WISCONSIN AND ST. CROIX

COUNTY, et al.,

Respondents.

On Petrrion FOR A Writ OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF WISCONSIN

BRIEF OF AMICI CURIAE CALIFORNIA

CATTLEMEN’S ASSOCIATION, NATIONAL

FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL

CENTER AND NATIONAL ASSOCIATION OF

HOME BUILDERS IN SUPPORT

OF PETITIONERS

—a

KeEvIN M. Fonc

Counsel of Record

MakK E. ELLIOTT

RONALD E. VAN BusKIRK

Prtispury WINTHROP SHAW Pittman LLP

Four Embarcadero Center, 22™ Floor

San Francisco, CA 94111

(415) 983-1000

kevin.fong@pillsburylaw.com

Counsel for Amici Curiae

September 17, 2015

—_

261650 g

COUNSEL PRESS ee

i

TABLE OF CONTENTS

Page

|g i

TABLE OF CITED AUTHORITIES .............. ii

INTERESTS OF AMICI CURIAE.............-.-- 1

SUMMARY OF ARGUMENT...................:. 5

EE 6

I. THE WISCONSIN COURT OF

APPEALS’ DECISION ILLUSTRATES

AN UNRESOLVED ISSUE IN FIFTH

AMENDMENT TAKINGS LAW

WHICH WARRANTS REVIEW............. 6

ll. COURTS ARE IN CONFLICT ON

APPLICATION OF THE “PARCEL

AS A ‘WY HOLE” CONCEPT. ................. 9

Ill. CLARITY ON THE IMPORTANCE

OF PROPERTY RIGHTS IS

uw

TABLE OF CITED AUTHORITIES

Page

Cases

Andrus v. Allard,

we cvscbeeccenéseteteccenceenes )

Aptos Seascape Corp. v. County of Santa Cruz,

188 Cal. Rptr. 191 (Ct. App. 1982) ............... 11

Concrete Pipe & Prod. of Cal., Inc. v.

Constr. Laborers Pension Trust for S. Cal.,

i ccdeannedh oceecesedeesnswds 14

District Intown Props. Ltd. v.

District of Columbia,

198 F.3d 874 (D.C. Cir. 1999). ...............005- 15

Forest Props., Inc. v. United States,

177 F.3d 1360 (Fed. Cir. 1999)................... 15

Giovanella v. Conservation Comm'n of Ashland,

857 N.E.2d 451 (Mass. 2006) .................05. 7

Jefferson Street Ventures, LLC v. City of Indio,

187 Cal. Rptr. 3d 155 (Ct. App. 2015)............. 11

Kalway v. City of Berkeley,

60 Cal. Rptr. 3d 477 (App. Ct. 2007) ............. 12

Kavanau v. Santa Monica Rent Control Bd.,

ecu cadsecesecene 10

221

Table of Cited Authorities

Page

Keystone Bituminous Coal Ass’n. v.

DeBenedictis,

ib etc wemgeenbiusdessausue 7,9

Lost Tree Village Corp. v. United States,

Ps becccancsecescocceoced 8,12

Lost Tree Village Corp. v. United States,

EE os ccddcacesbecoccesened 8,12

Loveladies Harbor, Inc. v. United States,

28 F.3d 1171 (Fed. Cir. 1904). ........cccccecccees 7

Murr v. St. Croiz Cty. Bd. of Adjustment,

796 N.W.2d 837 (Wis. Ct. App. 2011)............ 6,9

Palm Beach Isle Assocs. v. United States,

208 F.3d 1374 (Fed. Cir. 2000), affd on reh’g,

231 F.3d 1354 (Fed. Cir. 2000) ................. 7,8

Penn Cent. Transp. Co. v. New York City,

Se EES v cvccceucscsscsccsceced 6, 7, 12

Ramona Convent of the Holy Names v.

City of Alhambra,

26 Cal. Rptr. 2d 140 (App. Ct. 1993).............. ll

San Diego v. Neumann,

I Is 9 ncccscccsecoesecceses 12

San Remo Hotel v. City & Cty. of San Francisco,

iG ccievededeanseksocess 10

WwW

Table of Cited Authorities

Page

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Reg’! Planning Agency,

ee es beeeeb ey 9

Twain Harte Assocs., Ltd. v. Cty. of Tuolumne,

265 Cal. Rptr. 737 (Ct. App. 1990) ............... 11

Constitution

EE oe co ec deceueesboese’ 6, 8, 9, 10

a in pc cdeseveneusensienekes 10

Statutes and Codes

Cal. Pub. Res. Code § 30010... ... 2... cc cece cneee 12

Rules and Regulations

es ccede dis ndénceeeessesénkanwe’ 1

Other Authorities

Ca. CoastaL Comm’n, STaFF REPortT: REGULAR

CALENDAR 82 (2010), http://documents.coastal.ca.gov/

reports/2011/2/Th8a-s-2-2011.pdf.................. 13

Cau. Dep’t oF Forestry & Fire Pror., CALIFORNIA'S

FORESTS AND RANGELANDS:

Vv

Table of Cited Authorities

CAL. Drep’t oF Forestry & FIRE Prort., CALIFORNIA’S

FORESTS AND RANGELANDS:

2010 ASSESSMENT 53 (2010)... ..........ccceccecceces 2

Gideon Kramer, Making Laws and Sausages: A

Quarter-Century Retrospective on Penn Central

Transportation Co. v. City of New York,

13 Wm. & Mary Brit Rrs. J. 679 (2005) .............. i)

John E. Fee, The Takings Clause as a Comparative

Right, 76 S. Cau. L. Rev. 1003 (2003) .............-. 15

S. Cent. Coast Starr, CAL. Coastat Comm’N, AGENDA

Irems 13C-H (2011), http://www. ee

I cn Sab bactaccdusaancnkassovedeer

Shasta Ferranto et al., Forest and Rangeland Owners

Value Land for Natural Amenities and As Financial

Investment, 65 Cau. Ac. 184 (2011) ...............4.. 3

STEPHANIE LARSON-PRAPLAN, CAL. RANGELANDS

ResEARCH & Inro. Crr., History of RANGELAND

MANAGEMENT (2015),

http://californiarangeland.ucdavis.edu/History of _

Be EEE 6c ccc cccccccccccesececceceoes 3

STEVEN J. EAGLE, REGULATORY T'AKINGS

Section 7-7(e)(5) (4th ed. 2009). ......... 2.00 ce eee 14

STEVEN J. EAGLE, REGULATORY TAKINGS

Section 11-7(b)(2) (2d ed. 2001). .................... 15

v1

Table of Cited Authorities

Page

Steven J. Eagle, The Parcel and Then Some: Unity of

Ownership and the Parcel as the Whole,

96 Vz. L. Rav. 640 GO1Z). . ccc ccc cc ccee 7, 8, 9, 14

Susan Rose-Ackerman, Against Ad Hockery: A

Comment on Michelman,

88 Cotum. L. Rev. 1697 (1988) .................0006- y

1

INTERESTS OF AMICI CURIAE'

Amici curiae, the California Cattlemen’s Association,

the National Federation of Independent Business Small

Business Legal Center, and the National Association of

Home Builders submit this brief in support of petitioners

Joseph P. Murr, et al. (“Petitioners”) and respectfully

request that the Petition for Certiorari (“Petition”) be

granted.

The California Cattlemen’s Association (“CCA”)

is the preeminent organization of cattle grazers in

California, and acting in conjunction with its affiliated

local organizations, it endeavors to promote and defend the

interests of the livestock industry. Formed in 1917 as a non-

profit trade association, the CCA promotes the interests

of ranchers both large and small in California. The CCA

has 35 local cattlemen’s association affiliates that serve as

a strong link between the grassroots membership and the

association. The CCA represents its members’ interests

before the California State Legislature, Congress and

federal and state regulatory agencies on a wide range of

issues including federal lands grazing fees and regulation,

wetlands, conservation programs, air quality, wildlife

1. No counsel for a party authorized this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici curiae or their counse] made a monetary

contribution to its preparation or submission.

Counsel of record for all parties received timely notice of

amici curiae’s intention to file this brief pursuant to Supreme

Court Rule 37.2(a). The parties have consented to the filing of

this brief.

2

management, parcel fees, and other issues affecting the

use and ownership of California’s rangelands.

California is the third largest state in the union with

almost 105 million acres of property. At 57 million acres,

primary rangelands—meaning those lands suitable for the

grazing of livestock—make up nearly 57% of California.

CAL. Dep’t or Forestry & FIRE Prot., CALIFORNIA’S

FORESTS AND RANGELANDS: 2010 AssEssMENT 53 (2010).

Forty-three percent of these 57 million acres are in

private ownership. CaL. Dep’r or Forestry & FIRE Pror.,

CALIFORNIA'S FORESTS AND RANGELANDS: 2003 ASSESSMENT

67 (2003). Such private rangelands are found in every major

geographic area of the State, with substantial ownerships

along the California coast and in the Sierra foothills. Jd. A

map created by the California Department of Forestry and

Fire indicates that at least 55 of California’s 58 counties

have private rangelands. While such rangelands account

for a significant portion of California’s area, they are not

evenly distributed across the state. Much of the private

rangeland is located in coastal regions subject to some

of the state’s most onerous planning and land use laws,

including, of course, the California Coastal Act.

Owners of private rangeland are required to navigate

the land use laws applicable to ranches that often consist of

large-scale acreages sometimes stretching across multiple

jurisdictions.* These rangelands are typically held for

the purposes of a family business and have been in the

2. For example, the Bar One Ranch located in both Sierra and

Plumas Counties totals 13,000 acres, the Nelson Ranch located in

both Mariposa and Merced Counties totals 3,861 acres, and Roney

Land and Cattle located in Butte, Tehama, Plumas, and Lassen

Counties totals over 50,000 acres of private lands.

3

same family-operation for four or five generations. Shasta

Ferranto et al., Forest and Rangeland Owners Value Land

for Natural Amenities and As Financial Investment,

65 Ca. Ac. 184 (2011); STEPHANIE LARSON-PRAPLAN,

CAL. RANGELANDS RESEARCH & INFo. Crr., History or

RANGELAND MANAGEMENT (2015).* For many ranches,

the parcels have been acquired piecemeal over decades.

LARSON-PRAPLAN, CAL. RANGELANDS RESEARCH & INFO.

Crr., History OF RANGELAND MANAGEMENT (2015). While

there may be common ownership among these parcels,

the individual holdings have been acquired separately

and are often noncontiguous. Particularly in mountain

areas, a rancher’s deeded land may be interspersed with

other leased lands; loss of one key parcel may affect the

operational functionality of a large area. Inconsistency

in land use law and the “takings” doctrine, especially

the “parcel as a whole” question, creates a minefield for

these private landowners as well as uncertainty for local

land use regulators when faced with such large property

holdings.

The National Federation of Independent Business

(“NFIB”) is the nation’s leading small business association,

representing 325,000 member businesses in Washington,

D.C., and all 50 state capitals. Founded in 1943 as a

nonprofit, nonpartisan organization, NFIB’s mission is

to promote and protect the right of its members to own,

operate and grow their businesses, including their rights

with respect to ownership and operation of real estate.

The National Federation of Independent Business, Small

Business Legal Center (“NFIB SBLC”) is a nonprofit,

3. Online at http://californiarangeland.ucdavis.edu/History _

of Range Management/.

4

public interest law firm established to provide legal

resources and be the voice for small businesses in the

nation’s courts through representation on issues of public

interest affecting small businesses.

The National Association of Home Builders (“NAHB”)

represents more than 140,000 members in 800 state and

local associations. Since its founding in the early 1940s,

NAHB has served as an important voice of America’s

housing industry. NAHB works to ensure that housing is

a national priority and that all Americans have access to

safe, decent and affordable housing. Achieving that goal is

increasingly difficult in today’s contentious and unsettled

legal environment. NAHB champions laws and regulations

designed to preserve the value of the nation’s housing

stock, decrease the cost of rental housing, and facilitate

economic recovery.

To fulfill their roles as the voices for small business

and home builders, NFIB SBLC and NAHB frequently

file amicus briefs in cases that will impact small businesses

and housing. NFIB SBLC supports the Petition in this

case because the “parcel as a whole doctrine” is of central

concern in regulatory takings cases. The issue is of great

practical concern for small business owners who happen

to own one or more contiguous properties. When economic

uses are severely restricted or prohibited with regard to

one of those parcels, NFIB SBLC believes it is unfair to

the landowner to view his or her separate legal parcels as

a single economic unit for purpose the regulatory takings

doctrine.

Similarly, NAHB supports the Petition in order to

preserve the integrity of legally subdivided parcels which

5

are the cornerstone of the nation’s real property system.

NAHB’s members are directly affected by the application

of the “parcel as a whole” question. NAHB’s members are

property owners who engage in land development and

construction activities that often occur at different times

and in different phases. The viability of each of these

phases is often determined by government regulation

and economic conditions. It is not unusual for a developer

to retain an interest in an individual parcel long after

completing an adjacent development phase. Unfortunately,

NAHB’s members often face scenarios strikingly similar

to those faced here—where parcels of separately deeded

land are combined together for purposes of takings

analysis. NAHB believes its homebuilder members would

be greatly served if this Court grants the Petition and

provides definitive guidance for land use agencies as to

the “parcel as whole” doctrine.

SUMMARY OF ARGUMENT

The “parcel as a whole” concept is an important, but

unresolved issue of takings law that should be defined in

the context of adjoining parcels under single ownership.

The CCA, NFIB and NAHB concur with Petitioners that

determination of the relevant parcel of land subject to

regulatory takings analysis should be clarified in order for

agencies and courts to legally and equitably determine the

extent of economic impact occasioned by restrictive land

use regulation. The facts presented by this case, involving

adjoining but legally separate parcels of property, provide

the Court with the opportunity to address the issue in

a context of great interest to California ranchers who

may own large acreages acquired at different times

and comprised of multiple legal parcels, as well as small

6

business owners and residential developers that acquire

multiple parcels for their business operations, development

activities, or investment plans.

ARGUMENT

I. THE WISCONSIN COURT OF APPEALS’

DECISION ILLUSTRATES AN UNRESOLVED

ISSUE IN FIFTH AMENDMENT TAKINGS LAW

WHICH WARRANTS REVIEW.

The ruling below that two discrete lots, which are

contiguous and happen to be owned by the same people,

are subject to this Court’s “parcel as a whole” doctrine

from Penn Central Transportation Co. v. New York City,

438 U.S. 104, 130-31 (1978) illustrates an overly subjective,

and potentially flawed, assessment of the “relevant parcel”

for regulatory takings analysis. See Murr v. St. Croix

Cty. Bd. of Adjustment, 796 N.W.2d 837 (Wis. Ct. App.

2011). But this determination results from no real fault

by the Wisconsin Appellate Court. Rather it derives from

conflicting and piecemeal judicial decisions ostensibly

offering direction on how to define the denominator in

the takings equation. This case provides an opportunity

for the Court to resolve long-standing questions about the

“relevant parcel” for takings analysis, at least in the case

of contiguous owned properties.

Determination of the relevant parcel is a critical issue

that controls the outcome of many takings claims. See

Brief for Petitioners 11. This point has been acknowledged

by many courts, including this one, as noted in the

Petition. Jd. at 11-12 (citations omitted). What constitutes

the relevant parcel has often perplexed the U.S. Court

7

of Appeals. Explaining the “question” of the relevant

parcel, the First Circuit states that “it is referred to as

the denominator problem because, in comparing the value

that has been taken from the property by the imposition

with the value that remains in the property, ‘one of the

critical questions is determining how to define the unit of

property whose value is to furnish the denominator of the

fraction.” Palm Beach Isle Assocs. v. United States, 208

F.3d 1374, 1380 n.4 (Fed. Cir. 2000), aff'd on reh’g, 231 F.3d

1354 (Fed. Cir. 2000) quoting Keystone Bituminous Coal

Ass’n. v. DeBenedictis, 48 U.S. 470, 497 (1987)).

As noted by Professor Eagle of George Mason School

of Law, the circuit courts have adhered to a flexible, but

factually nuanced, approach to defining the relevant parcel,

see, e.g., Loveladies Harbor, Inc. v. United States, 28 F.3d

1171, 1181 (Fed. Cir. 1994), but that flexibility comes at a

steep price to land use agencies, property owners and the

courts. Steven J. Eagle, The Parcel and Then Some: Unity

of Ownership and the Parcel as the Whole, 36 Vr. L. REv.

549, 551 (2012). “Repeated admonitions to use the ‘parcel

as the whole,’ however, do little to define the contours of

that whole parcel in any particular case.” Giovanella v.

Conservation Comm’n of Ashland, 857 N.E.2d 451, 456

(Mass. 2006).

This flexible analysis is governed by parameters

which ostensibly spring from Penn Central’s multi-factor

approach to takings analysis. The Court of Federal Claims

summarized those factors applicable to the relevant parcel

as the following:

(1) the degree of contiguity between property

interests, (2) the dates of acquisition of property

8

interests, (3) the extent to which a parcel has

been treated as a single income-producing unit,

(4) the extent to which a common development

scheme applied to the parcel, and (5) the extent

to which the regulated lands enhance the value

of the remai..ing lands.

The court also stated that a sixth factor, ‘the

extent [to which] any earlier development

had reached completion and closure’ was also

relevant to consideration in the relevant-parcel

analysis.

Steven J. Eagle, The Parcel and Then Some: Unity of

Ownership and the Parcel as the Whole, 36 Vr. L. REv.

549, 569 (citing Lost Tree Village Corp. v. United States,

100 Fed Cl. 412, 428 (2011) Citing Palm Beach Isles Assocs.

v. United States, 208 F.3d at 1381; Lost Tree Village Corp.

v. United States, 92 Fed Cl. 711, 718 (2010))) (brackets in

original). But while many cases have considered these

factors, the inherent vagaries of flexibility and factual

nuance frequently lead to conflict and confusion in the

outcome. Courts are not required to accord the same

weight or consi eration to any respective factor. As such,

disparate results arise that tend to cast doubt on the

integrity of Fifth Amendment jurisprudence and lead

to questions of the transparency of court decisions. As

surmised by Professor Eagle,

The idea that the rule under which one

evaluates the facts is not a fixed one, but varies

with the facts themselves, is apiece with the

“ad-hockery” that makes it so difficult for

lawyers to predict with any confidence what

Penn Central means.

9

Id. at 566-567 (citing Susan Rose-Ackerman, Against Ad

Hockery: A Comment on Michelman, 88 Co.um. L. Rev.

1697, 1700 (1988) (noting the confusion caused by ad hoc

factual inquiries in the current takings jurisprudence);

Gideon Kramer, Making Laws and Sausages: A Quarter-

Century Retrospective on Penn Central Transportation

Co. v. City of New York, 13 Wau. & Mary Bit Rrs. J. 679,

687 (2005)).

The Murr case provides a simple fact pattern which

may lend itself to a multi-factor determination. But

that simple factual context also provides this Court the

opportunity to provide practical objective guidance on

the appropriate weighting of those factors. As explained

by Petitioners, the Murr facts lack the complexities of

many regulatory takings cases which are confounded

by such things a temporal considerations, Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302 (2002), geophysical factors, Keystone

Bituminous Coul Ass’n. v. DeBenedictis, 48 U.S. 470,

497 (1987), or eagle feathers Andrus v. Allard, 444 U.S.

51 (1979). Instead, this matter is simply a question of the

regulation of two distinct parcels of residential property

which are owned by one party and happen to be contiguous.

II. COURTS ARE IN CONFLICT ON APPLICATION

OF THE “PARCEL AS A WHOLE” CONCEPT.

As illustrated in the Petition, inconsistent and

contradictory approaches have been used by federal

and state courts on the aggregation of parcels for Fifth

Amendment takings analysis. See Brief for Petitioners 17-

21. Anumber of the key federal cases in the area of takings

10

law have grown out of disputes arising in California.‘

This disparity of process and result illustrates that not

only do property owners need clarity on the application

of the “parcel of a whole” doctrine, but regulators and the

courts do as well.

The CCA’s members own and manage property in 55

of California’s 58 counties. NF IB and NAHB’s members

own property in essentially every county in California and

many other states as well. This means that California’s

ranchers, small business owners and home builders—all of

whom may be directly affected by the “parcel as a whole”

doctrine in current and future use of their properties—

are regulated by no fewer than 55 different counties

and a significantly greater number of cities in which

such properties may lie. In addition to county and city

jurisdictions, many California ranchers, business owners,

and residential developers are subject to regulation by the

California Coastal Commission (“Coastal Commission”)

for properties located in the coastal zone. As this Court

knows, this state agency has regulatory authority over

4. Like many states, the California Constitution contains a

“takings clause” that closely parallels the Fifth Amendment to the

U.S. Constitution ’s provision that “[N]or shall! private property be

taken for public use, without just compensation.” Article I, Section

19 of the California Constitution provides in part: “Private property

may be taken or damaged for public use only when just compensation

. has first been paid to, or into court for, the owner.” Despite a

slight disparity in wording, California regulatory taking cases treat

the state and federal takings provisions as essentially identical. As a

result, in reviewing regulatory takings challenges under California’s

Constitution, California courts frequently rely upon U.S. Supreme

Court decisions. See, ¢.g., Kavanau v. Santa Monica Rent Control

Bd., 941 P.2d 851, 858 (Cal. 1997); San Remo Hotel v. City & Cty. of

Sau Francisco, 41 P.3d 87, 100-101 (Cal. 2002).

11

large swathes of privately owned lands, including some

extensive rangelands, in Southern, Central and Northern

California.

In the absence of judicially-directed consistency on this

critical issue, property owners of contiguous properties

may be subject to conflicting land use regulation from

multiple agencies over a widely dispersed properties, or

even be subject to conflicting regulatory interpretation on

immediately contiguous parcels from different agencies.

This potential disparity works not only to the detriment

of the property owner, but also the land use agencies

themselves who have no ability to act in concert in their

interpretation of the parcel as a whole doctrine.

This disparity has not gone unnoticed by the courts.

Just as inconsistency is illustrated in federal and state

cases in Petitioner’s Brief, California also presents

examples of conflicting determinations. For example, in

Twain Harte Associates, Lid. v. County of Tuolumne, 265

Cal. Rptr. 737, 745-747 (Ct. App. 1990), the court found

that two contiguous properties with common ownership

would not be treated as a whole parcel for purposes of a

takings analysis because of a zoning distinction. The court

reached a similar conclusion in Jefferson Street Ventures,

LLC ». City of Indio, 187 Cal. Rptr. 3d 155 (Ct. App. 2015)

as well as Aptos Seascape Corp. v. County of Santa Cruz,

188 Cal. Rptr. 191 (Ct. App. 1982).

However, a California Appellate Court distinguished

these earlier cases (Harte and Aptos) based upon the

zoning distinctions and applied the parcel as a whole rule in

Ramona Convent of the Holy Names v. City of Alhambra,

26 Cal. Rptr. 2d 140 (App. Ct. 1993). In that case the court

12

ruled in a regulatory takings dispute that the entire parcel

of a school—19.17-acres—was the denominator in the

takings equation, rather than the 1.97-acre parcel carved

out for sale as a fundraiser. By further contrast, in Kalway

v. City of Berkeley, 60 Cal. Rptr. 3d 477 (App. Ct. 2007),

the court looked through a spousal property transfer to

determine that common ownership still existed and the

“parcel as a whole” doctrine applied. Another court has

found that the “whole parcel” is determined by looking

at “(1) unity of title; (2) contiguity of the parcels; and (8)

unity of use.” San Diego v. Neumann, 863 P.2d 725, 730

(Cal. 1993). On its face the factors posed in Neumann

pay lip service to elements of Lost Tree Village Corp.,

but the court is clearly weighting “unity” as a key factor

without justification or consideration of Penn Central's key

consideration of the “investment-backed expectations” of

the property owner. Penn Central, 438 U.S. at 124.

State agencies such as the Coastal Commission

are charged with furthering specific statutory tasks

and goals for which they were created, but the takings

doctrine must serve as a critical check on the agency’s

pursuit of those goals. While the Coastal Commission

is authorized to “liberally” pursue its environmental

mandate, at the same time the Coastal Act recognizes

that the Commission is not authorized “to grant or deny

a [coastal development] permit in a matter which will

take or damage private property for public use, without

payment of just compensation therefor.” Cal. Pub. Res.

Code § 30010.

Despite this restraint, the Coastal Commission

recently advocated an expansive interpretation of the

“parcel as a whole doctrine” to justify a limitation on real

13

property development. The “unity of ownership” theory

was asserted in a California Coastal Commission Staff

Report as grounds for the Coastal Commission’s denial

of development applications for five separate single-

family residences in the Santa Monica Mountains above

Malibu, California. CaL. CoastaL Comw’n, Starr REPORT:

REGULAR CALENDAR 82 (2010). Despite evidence to the

contrary, and without citation to supporting evidence, the

Commission Staff Report disputed that the five parcels

were separately owned, and asserted that the history

and ownership structure of the parcels, and coordination

in their development, provided evidence that “all of the

parcels are actually owned” by a single person, id. at

80, which justified denying the development permits.

S. Cent. Coast Starr, CAL. Coastat Comm’N, AGENDA ITEMS

13C-H (2011).°

This is but one example where this Court’s resolution

of the contiguous property “parcel as a whole” issue would

assist in limiting confusion and overreaching conduct by

government regulators.

III. CLARITY ON THE IMPORTANCE OF PROPERTY

RIGHTS IS NEEDED

Granting the Petition allows the Court the opportunity

to address a fundamental question of the overlap between

real property law and land use regulation. As discussed

above, the multi-factor approach to determining the

5. Online at http://documents.coastal.ca.gov/reports/2011/2/

Th8a-s-2-2011.pdf.

6. Online at http://www.coastal.ca.gov/meetings/mtg-mm11-6.

html.

14

relevant parcel lacks objective standards to ensure

uniformity in regulatory takings cases. This lack of

objectivity has resulted in lower courts struggling to

accurately define the relevant parcel. But this struggle

further illustrates a more fundamental question regarding

how to balance underlying property rights against the

factors developed by the courts to either shrink or enlarge

the property subject to the takings analysis. As noted by

Professor Eagle,

While courts have determined the relevant

parcel to be larger or smaller, the baseline for

‘parcel as a whole’ remains the deeded parcel.

Each legal! parcel is a separate parcel for takings

analysis, unless and until the facts indicate

otherwise. “To the extent that any portion of

property is taken, that portion is always taken

in its entirety; the relevant question, however,

is whether the property taken is all, or only a

portion of, the parcel in question.’

See Steven J. Eagle, The Parcel and Then Some: Unity

of Ownership and the Parcel as the Whole, 36 Vr. L.

Rev. 549, 562 (2012) (citing Concrete Pipe & Prod. of

Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal.,

508 U.S. 602, 644 (1993)) (emphasis added and citations

omitted). In deference to legal rights conveyed with a

legally subdivided parcel of property, Professor Eagle

and others have suggested a more neutral approach to

the relevant parcel analysis, “balancing the dangers of

severance and agglomeration.” /d. at 562 (2012); Steven

J. EAGLE, REGULATORY TAKINGS, § 7-7(e)(5) (4th ed. 2009).

To date, and with no objective or systematic basis for

their conclusion, “most courts entertain at least a strong

presumption that all contiguous land held by a single

15

owner is to be treated as a single unified parcel.” John E.

Fee, The Takings Clause as a Comparative Right, 76 S.

CAL. L. Rev. 1003, 1031 (2003) Citing, inter alia, District

Intown Props. Ltd. v. District of Columbia, 198 F.3d 874,

880 (D.C. Cir. 1999); Forest Props., Inc. v. United States,

177 F.3d 1360, 1365 (Fed. Cir. 1999)). Adopting such a

“strong presumption” that disregards legally-created

parcels goes to the heart of the conflict over weighting of

long established property rights in the takings equation:

It may be necessary to consider an owner’s

property as an undivided whole to avoid

extreme results under the deprivation-

of-all-use standard. To engage in such

‘conceptual agglomeration’ . . . however, is

to violate the concept of property as a set of

fungible entitlements. Large landowners are

disadvantaged in their constitutional rights

compared to small landowners for no apparent

constitutional reason other than to find some

limit to the regulatory takings doctrine.

STEVEN J. EAGLE, REGULATORY TAKINGS § 11-7(b)(2) (2d

ed. 2001).

In light of these concerns about perceived subjectivity

in defining the relevant parcel, the amici support the

opportunity for the Court to consider the instant case.

The Court can elucidate on the underlying deference to

be shown to property rights as juxtaposed against the

judicial factors utilized to define the relevant parcel.

16

CONCLUSION

For the foregoing reasons, amici curiae the California

Cattlemen’s Association, the National Federation of

Independent Business Small Business Legal Center, and

the National Association of Home Builders respectfully

submit the Petition should be granted.

Respectfully submitted,

Kevin M. Fone

Counsel of Record

MakK E. EL.iorr

RONALD E. VAN BuskIRK

PILLsBuRY WinTHROP SHAW Pittman LLP

Four Embarcadero Center, 22™ Floor

San Francisco, CA 94111

(415) 983-1000

kevin.fong@pillsburylaw.com

Counsel for Amici Curiae

September 17, 2015