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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0607%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

No. 15-214

ee
Peet:

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0607%3A05. Public record. Not legal advice.