Motion — Harsh Investment Corp. v. City & County of Denver

es, _ Supreme Court, U.S,

eo

JOSEPH F. SPANIOL, JR.

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1986

HARSH INVESTMENT CORP.,

“ Appellant,

CITY AND COUNTY OF DENVER, et al.,

Appellees.

On Appeal from the Supreme Court, State of Colorado

MOTION TO DISMISS OR AFFIRM

STEVEN H. KAPLAN

Denver City Attorney

ROBERT M. KELLY

Assistant City Attorney

1437 Bannock Street, Room 353

Denver, Colorado 80202-5375

(303) 575-2665

Attorneys for Defendant-Appellees

JAMES M. LYONS *

ARNOLD C. MACDONALD

ROTHGERBER, APPEL, POWERS

& JOHNSON

One Tabor Center, Suite 2800

1200 17th Street

Denver, Colorado 80202

Telephone: (303) 623-9000

Attorneys for Defendant-

Intervenor-A ppellees

* Counsel of record

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QUESTIONS PRESENTED

A. Whether a case challenging the constitutionality of

a municipal land use ordinance is “ripe” for review when

the party challenging the ordinance has not utilized avail-

able municipal procedures to obtain a permit or seek a

variance from the ordinance.

B. Whether, on a facial challenge, a party whose prop-

erty is valued at a minimum of $6 million and whose

present use of the property is unimpaired after an ordi-

nance is enacted can assert that the ordinance effects a

“taking” of its property.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ooooo-o-..---ses.----sssssseseseeseeeeeee

TABLE OF AUTHORITIES .o-o-ccsc-scccccccccsesecssssssseseveeeeee

FACTUAL BACKGROUND AND PROCEEDINGS

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I. The Appeal Should Be Dismissed For Lack Of

Jurisdiction Because Harsh’s Taking Claim Is

Not Ripe Until Harsh Is Refused A Building

Permit, Applies For A Variance, And Exhausts

All Available Administrative Remedies .............

II. The.Southmoor Park Amendment Does Not Deny

Harsh The Economically Viable Use Of Its

ERO Ee Se ne ae ON ORME See OTS sins

(iii)

10

13

17

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iv

TABLE OF AUTHORITIES

Page

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......... 10, 13

Andrus v. Allard, 444 U.S. 51 (1979) ...00002.. 16

Berman v. Parker, 348 U.S. 26 (1954) -...00000.02220-... 14

City of Renton v. Playtime Theatres, Inc., 106

EERE ip on va vn re 16

Cochran v. Preston, 108 Md. 220, 70 A. 113

a 15

Commonwealth v. Stearns Coal and Lumber Co.,

678 S.W.2d 378 (Ky. 1984), appeal dismissed,

es i ec 10

Goldblatt v. Town of Hempstead, 369 U.S. 590

Lf FERRE ES IP AES HT TE OF 14

Gorieb v. Fox, 274 U.S. 608 (1926) ......................... 14

Hadacheck v. Sebastian, 239 U.S. 394 (1915) -........ 14

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264 (1981) -......00000.... 10, 11, 12, 13

Keystone Bituminous Coal Association v. DeBene-

dictus, 107 S. Ct. 1282 (1987) ..............0...- 13, 14, 16, 17

Landmark Land Co. v. City and County of Denver,

Tae ee Se SE nis 9

MacDonald, Sommer & Frates v. Yolo County, 106

I eae: Se I 10

Penn Central Transportation Co. v. City of New

etm See ak Be CON te ce 2,15, 16

State v. Good Samaritan Hospital, 299 Md. 310,

473 A.2d 892 (1983), appeal dismissed, 4F9 U.S.

I Sa ac Na are 10

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)... 14,15

Welch v. Swasey, 214 U.S. 91 (1909) -.000222.222 2... 6, 14, 15

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172 (1985)...... 10, 11, 12, 13

Young v. American Mini Theatres, Inc., 427 U.S. 50

1: FREE oe OR AE, SES AES ORC Ne aL SS SO 16

Vv

TABLE OF AUTHORITIES—Continued

CONSTITUTION AND STATUTES Page

U.S. Const.

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Mass. Gen. Laws

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New York Laws

Ch. 454 (1985) «..........-..-.--..----.-ces-ccseecsecnecneneennneee 15

Denver Municipal Code

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TREATISES

R. Anderson, The American Law of Zoning 8d

(1986) ..........-.--..ce---n--cec--csesenceesnaeennvesneseneonecsensnesnsnees 15

A. Rathkopf & D. Rathkopf, The Law of Z oning

and Planning (1987) .......----------:-----ssece-ceeseesteeee 15

N. Williams, American Planning Law t j= 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1528

HARSH INVESTMENT CORP.,

Appellant,

v.

CITY AND COUNTY OF DENVER, e¢ al.,

Appellees.

On Appeal from the Supreme Court, State of Colorado

MOTION TO DISMISS OR AFFIRM

Appellees, the City and County of Denver, the Mayor,

City Council and its members, Building Department and

Acting Director of the Building Department of the City

and County of Denver, the Southmoor Park East Home-

owners’ Association (“SPEHA”’) and Thomas P. McCallin,

respectfully request this Honorable Court to dismiss this

appeal for lack of jurisdiction on the grounds that the

controversy is not ripe for resolution in this Court, be-

cause the appeal does not present a substantial federal

question, or the federal questions presented are so unsub-

stantial as to require no further argument, or in the alter-

native, to affirm the decision of the Colorado Supreme

Court.

2

FACTUAL BACKGROUND AND PROCEEDINGS BELOW

A. Statement of the Facts

This case challenges the constitutionality of a Denver

Municipal Ordinance enacted to preserve the mountain

views from various Denver parks by limiting the height

of numerous residential and commercial buildings within

the view-plane of the parks to a level that does not block

the view. Appellant Harsh Investment Corp., which at

no time material to this action has had any plans to de-

velop its property, seeks to have this Court rule that

Denver is precluded from enacting an ordinance designed

to preserve the natural beauty of the environment of

its citizens, because the ordinance reduces its profit

expectation.

Throughout this century, Denver has recognized the

importance of mountains to its heritage. Like landmarks

in other cities, the mountains in Colorado enhance the

quality of life for all, represent the lessons of the past,

and embody precious features of our heritage. See Penn

Central Transportation Co. v. New York City, 438 U.S.

104, 108 (1978). With Denver’s rapid growth in the late

1960s, the City Council enacted Section 10-56 (the

“Mountain View Ordinance”) of the Denver Municipal

Code (hereinafter cited as ‘“Code”’) to save Denver’s

mountain views. The stated purposes of the Mountain

View Ordinance are to perpetuate the prosperity, civic

pride, and general welfare of the people; to perpetuate

the enjoyment and environmental enrichment of Denver’s

community and of visitors to Denver; to strengthen Den-

ver’s heritage as a city of the plains at the foot of the

Rocky Mountains; to foster civic pride in Denver’s

beauty; to stabilize and enhance the aesthetic and eco-

nomic vitality of the area whose views are preserved: to

protect and enhance the city’s attraction to tourists; and

to promote good urban design (Code § 10-56). The orig-

inal Mountain View Ordinance protected the views from

3

five parks: Cranmer Park (Code § 10-58), Cheesman

Park (Code § 10-59), Ruby Hill Park (Code § 10-60),

the State Capitol (Code § 10-61), and City Park (Code

§ 10-62). Later amendments added State Home Park

(Code § 10-60.5), Washington Park (Code § 10-61.5),

and Southmoor Park (Code § 10-62.5).

The City Council voted to include Southmoor Park

within the purview of the Mountain View Ordinance

when it enacted Section 10-62.5 (the “Southmoor Park

Amendment”) in July 1982. Appellant in this case,

Harsh Investment Corp., owns commercially zoned prop-

erty in a small portion of the area affected by the South-

moor Park Amendment (Tr. at 337, 340). The property

in question is currently occupied by a Howard Johnson

Restaurant and Motor Lodge under a long-term lease

with Harsh (Tr. at 173). The Southmoor Park Amend-

ment permits Harsh to build up to a height of 42 feet on

its property (Code § 10-62.5), which is consistent with

surrounding commercial development (Tr. at 163).

Harsh has never applied for a building permit on its

property (Tr. at 194), and admitted at trial that it had

no development plans for the property (Tr. at 190). The

Southmoor Park Amendment has no impact on Harsh’s

-eurrent use of its property, and the present value of

Harsh’s property, with the amendment in place, is at

least $6 million (Tr. at 185).

Southmoor Park is the only park in southeast Denver

protected by the Mountain View Ordinance (Tr. at 150).

1Harsh’s Jurisdictional Statement (hereinafter cited as J.S.)

asserts that Harsh established the loss in investment expectation

value to its property by “expert calculations.” (J.S. at 9). This is

an apparent reference to “damage” testimony presented by Harsh

at trial. Of the three plaintiffs, only Harsh presented such testi-

mony. Bennett Wright, Vice-President of Harsh, testified as to his

estimate of the value of Harsh’s property. Mr. Wright was never

qualified as an expert, his testimony was plainly self-serving, and

no independent testimony or valuation was offered at any time

as to the value of Harsh’s property.

4

It is a multi-use park containing two basebail fields, foot-

ball fields, picnic tables, and a playground (Plaintiff’s

Exhibits II and JJ, p. 6). It is used frequently for

events such as athletics, Denver school outings, picnics,

and band concerts (Tr. at 151, McCallin Depo. at

22-23) .°

The trial judge, after observing the mountain views

from each of the protected parks, stated that:

As far as Southmoor Park is concerned . . . there is,

I determine, a panoramic mountain view. ... [Y]ou

can see all the way to Long’s Peak and a long way

south. The trees off to the south block Pike’s Peak

from the view, but there is a view of a lot of the

mountains from that elevation of the park.

Tr at 346. Similarly, the developers’ own witnesses con-

ceded at trial that Southmoor Park offers a clear view

of the front range (Tr. at 65, 105, 235, 269). On a clear

day an observer can see the Devil’s Head formation,

Lookout Mountain (the burial site of Buffalo Bill), the

Mother Cabrini Shrine, and Red Rocks Park (McCallin

Depo., p. 12).

From the first stages of its development in the mid-

1960s, the Southmoor Park neighborhood was promoted

and marketed for the magnificent mountain views it

offers. (Exhibits 00, 26, 27). When local residents be-

came aware of Landmark Land Company’s (‘“Land-

2 Harsh claims that before the Southmoor Park Amendment, all

protected views were from areas with “significant regional and

scenic importance,” and that Southmoor Park has no such im-

portance. J.S. at 5 n.7. This argument is not supported by the

record. Indeed, the record reveals that the city classifies two of

those parks, Cheesman Park and Cranmer Park “neighborhood

parks,” the same classification given Southmoor Park, and Ruby

Hill Park as a “community park.” Plaintiffs Exhibit JJ.

3 By stipulation of the parties at trial, the parties designated

deposition testimony rather than calling certain witnesses. The

cited deposition testimony is, therefore, part of the record.

5

mark”) plan to build either one or two high rises which

would obstruct the view of the mountains, they proposed

the Southmoor Park Amendment.‘ The record reflects

that the citizens immediately became concerned with the

threatened destruction of their views (Tr. at 34, 35,

Bradley Depo. p. 70, Plaintiff’s Exhibits G, H). Support

for the amendment was not limited to a small, localized

group; community groups throughout metropolitan Den-

ver voiced their support of the amendment, and appeared

before the Denver City Council to urge its passage (Tr.

at 67; McCallin Depo. p. 78; Reynolds Depo. p. 27, 29;

Defendant’s Exhibit 20 p. 4; Cert. Record of City Coun-

cil Proceedings, Letter from Pine Valley Homeowners).

Harsh and other developers ® joined with other power-

ful members of Denver’s business community to launch

a vigorous campaign in opposition to the Southmoor

Park Amendment, lobbying the Denver Pianning Board,

the City Council and the Mayor’s office in an effort to

prevent the Southmoor Park Amendment from passing

(Tr. at 68-70, 160, 192-94; Defendant’s Exhibits 2-22).

Although Harsh’s Jurisdictional Statement contains a

long passage about how the Homeowners’ Association

supposedly railroaded the Southmoor Park Amendment

4The Jurisdictional Statement suggests that Harsh was the

target of a rezoning effort by the homeowners. The only rezoning

applications filed by SPEHA applied to the property of Landmark,

who is not a party to this appeal. Furthermore, SPEHA’s efforts

to rezone Landmark’s property are utterly irrelevant to this pro-

ceeding. Harsh does not contend here, as it did unsuccessfully

in front of the Colorado Supreme Court, that zoning procedures

should have been followed to-enact the Southmoor Park Amendment.

From a “taking” standpoint, it is immaterial whether a munici-

pality’s action is zoning or not.

5 Two other developers, Landmark and Southmoor Park Shopping,

Inc. (“Shopping”), joined in the campaign and later sued to chal-

lenge the ordinance. Their lawsuits were consolidated with Harsh’s

at trial and again on appeal to the Colorado Supreme Court. Land-

mark and Shopping have not joined in the appeal to this Court.

6

through the City Council, Harsh in no way challenges

the procedures involved in the enactment of the amend-

ment.®

The Southmoor Park Amendment was introduced be-

fore the Denver City Council on first reading on June 22,

1982. Although the procedural standards of the Moun-

tain View Ordinance do not require that the Denver

Planning Board meet to consider amendments to the

ordinance, the Denver Planning Board held a_ public

hearing on July 7, 1982, at the request of Landmark and

recommended that the City Council reject the amendment

(Defendant’s Exhibit 4, Bradley Depo. p. 15). Harsh

and the other developers were represented at that meet-

ing, both individually and by counsel. Following a pre-

sentation by the developers, the Planning Board applied

its criteria, which are “general guidelines rather than

restrictive standards” (Plaintiff’s Exhibit CC), and rec-

® Harsh argues that the Southmoor Park Amendment is aimed

specifically at its property. J.S. at 22. The trial court, however,

expressly found that the amendment affects “several hundred

properties” (Tr. at 340). Landmark, who is not a party to this

appeal, was the only developer with any sort of development plan.

Whether a view merits protection, the maximum height of buildings,

and the amount of property to be restricted in order to preserve

the view are matters of purely local concern. As this Court wrote

in Welch v. Swasey, 214 U.S. 91 (1909):

In passing upon questions of this character as to the validity

and reasonableness of a discrimination or classification in re-

lation to limitation as to height of buildings in a large city,

the matter of locality assumes an important aspect. The par-

ticular circumstances prevailing at the place or in the state

where the law is to become operative,—whether the statute is

really adapted, regard being had to all the different and ma-

terial facts, to bring about the results desired from its pas-

sage; whether it is well calculated to promote the general and

public welfare—are all matters which the state court is

familiar with; but a like familiarity cannot be ascribed to this

court, ..<

Id. at 105.

7

ommended that the City Council not pass the amendment

(Tr. at 105, 128; Defendant’s Exhibit 19).’

Although the City Charter does not require the City

Council to hold public hearings for amendments to the

Mountain View Ordinance, the City Council held a hear-

ing on July 12. Before the hearing, Harsh, Landmark

and Shopping met and/or corresponded with each mem-

ber of the City Council and with the Mayor to voice their

opposition to the amendment (Tr. at 68, 160, 192-93;

Defendant’s Exhiibt 3, 5-18). In addition, Harsh tried

to enlist the help of prominent members of the local busi-

ness community to defeat the amendment (Tr. at 193-

94). Officials of the developers spoke against the amend-

ment at the hearing, and the developers were repre-

sented by their attorneys and a private consultant (Cert.

Record of City Council proceedings, Minutes of July 12th

meeting). Many Council members visited the park before

voting on the amendment (Scheitler Depo. p. 4; Reynolds

Depo. p. 7; Sandos Depo. p. 9; Crider Depo. p. 12; Dona-

hue Depo. p. 11), and the amendment passed by a 9-3

vote.

After the City Council passed the amendment, the

developers unsuccessfully sought a mayoral veto. The

record reveals that Harsh had full and complete access

to the political process, including a planning board hear-

ing, a full city council hearing, and extensive lobbying.

Throughout the period before the Southmoor Park

Amendment was enacted, while the amendment was pend-

ing before the City Council, and since the enactment of

the Southmoor Park Amendment, Harsh has never sub-

mitted any development plans, applied for any building

permits, or sought a variance from the height ordinance

(Tr. at 190).

7 Harsh again exaggerates the record, claiming that the “Planning

Office found that Southmoor Park failed to meet the established

criteria it had applied to all previously protected areas.” J.S. at 6.

The record shows, however, that the criteria were established only

as a reaction to the proposed Southmoor Park Amendment, Tr. at

120-22, and were not binding. Tr. at 128.

\

B. Proceedings Below

Following passage of the Southmoor Park Amendment,

Harsh sued in the District Court for the City and County

of Denver, asserting that the mere passage of the Or-

dinance constituted a de facto rezoning of its property,

and that proper zoning procedures were not followed.

Harsh asserted that the City Council used its legislative

power to perform what should have been a judicial func-

tion, with the attendant notice, hearing and application

of fact to existing legal criteria. Harsh’s lawsuit was

consolidated with those of Landmark and Shopping.

SPEHA and Thomas P. McCallin, a Southmoor Park

homeowner, intervened as defendants with the City and

County and certain of its officials.

At trial, Harsh, Landmark, and Shopping received a

full and complete hearing on the merits. Plaintiffs pre-

sented extensive testimony concerning the history and

purposes of the Mountain View Ordinance and the South-

moor Park Amendment, and the alleged political maneu-

vering by the homeowners and the developers before the

amendment was passed. At the request of all parties, the

trial judge conducted a “view” of Southmoor Park and

each of the seven other parks with protected mountain

views. The trial judge found that under Colorado law

zoning or rezoning procedures did not apply to the enact-

ment or amendment of the Mountain View Ordinance,

and that the City could, under its police power, properly

enact or amend the ordinance in its legislative capacity.

The trial judge found that there is a panoramic moun-

tain view from Southmoor Park (Tr. at 346), and con-

cluded that the purposes of the Mountain View Ordi-

nance were fully met and satisfied by the Southmoor

Park Amendment.

_ The judge noted that the value of Harsh’s property

was not an issue before the court (Tr. at 341), but

found that although the property was worth less than

before the amendment was enacted,

9

[i]t is also clear that there was not a taking of the

three plaintiffs’ properties. These properties are still

very valuable. As far as Harsh is concerned we have

the testimony it’s worth six million dollars after

passage of the Mountain View Ordinance. .. . They

still have very valuable property, and it will continue

to be valuable in the future.

(Tr. at 341-42)

The consolidated cases were then appealed to the

Colorado Supreme Court. The Colorado Supreme Court

unanimously affirmed, holding that under state law, the

Southmoor Park Amendment was legislative in nature, a

proper exercise of the City’s police power, and substan-

tially related to a legitimate government concern. Fi-

nally, the Colorado Supreme Court held that because

Harsh’s present uses of its property could continue under

the amendment, no property was unconstitutionally taken:

Appellants cannot meet this test (i.e., unconstitu-

tional taking) as their present use of their land may

continue under the amendment. They attempt to find

a constitutional taking by distinguishing the cases

requiring deprivation of all beneficial use of property

and arguing that those cases involved a landowner

bringing suit to change the zoning ordinance as it

existed when the land was purchased.

Such a distinction is unpersuasive.

Landmark Land Co. v. City and County of Denver, 728

P.2d 1281, 1287 (Colo. 1986) .°

8 Harsh presents this case as an opportunity for the Court to

consider what it characterizes as Colorado’s “rigid ‘no value’ test’:

whether Denver has taken all value from Harsh’s property. J.S.

at 13-15 & n.20. The quoted language of the Colorado Supreme

Court opinion reveals that the court looked instead to Harsh’s

continuing unimpaired use of its property. Moreover, in footnote

20, Harsh cites two cases from other states which purportedly

apply “no value” tests, both of which were appealed to this Court,

which dismissed each appeal for want of a substantial federal

10

ARGUMENT

I. The Appeal Should Be Dismissed For Lack ‘Of Juris-

diction Because Harsh’s Taking Claim Is Not Ripe

Until Harsh Is Refused A Building Permit, Applies

For A Variance, And Exhausts All Available Admin-

istrative Remedies.

The constitutionality of statutes ought not to be de-

cided except in an actual factual setting that makes such

a decision necessary. Hodel v. Virginia Surface Mining

& Reclamation Association, 452 U.S. 264, 294-95 (1981).

Adherence to this rule is particularly important in cases

raising allegations of an unconstitutional taking of pri-

vate property. Jd. An “essential prerequisite” to the as-

sertion of a takings claim is a “final and euthoritative

determination of the type and intensity of development

legally permitted on the subject property.” MacDonald,

Sommer & Frates v. Yolo County, 106 S. Ct. 2561, 2566

(1986). In Hodel, this Court concluded that “mere en-

actment” of legislation does not “affect a taking of pri-

vate property.” 452 U.S. at 297, n.40. In Agins v. City

of Tiburon, 447 U.S. 255 (1980), this Court held that

until a developer submits a plan for development of its

property, there is no “concrete controversy” regarding

the application of specific zoning provisions. Jd. at 260.

Before a takings case is ripe for review in this Court,

a landowner must exhaust his administrative remedies, .

including applying for a building permit and exhausting

municipal variance procedures. The uncontroverted rec-

ord establishes that Harsh has not done so, and this case

is therefore not ripe for review.

In both Hodel and Williamson County Regional Plan-

ning Commission v. Hamilton Bank, 473 U.S. 172 (1985),

question. Commonwealth v. Stearns Coal and Lumber Co., 678

S.W.2d 378 (Ky. 1984), appeal dismissed, 105 S. Ct. 3549 (1985) ;

State v. Good Samaritan Hospital, 299 Md. 310, 473 A.2d 892

(1983), appeal dismissed, 469 U.S. 802 (1984).

11

landowners challenged legislation on the ground that it

constituted either a “taking” of private property without

just compensation in violation of the Fifth Amendment,

or a deprivation of property without due process in viola-

tion of the Fourteenth Amendment. In both cases, this

Court held that the cases were not ripe because, as in the

instant case, the landowners had not sought variances

from the legislation in question. Hodel, 452 U.S. at 297;

Williamson County, 473 U.S. at 186. Not only has Harsh

failed to seek a variance but it has not even applied for

a building permit and concedes that it has no immediate

development plans (Tr. at 190).

Hodel involved a challenge to the Surface Mining Con-

trol and Reclamation Act of 1977, 91 Stat. 447, 30 U.S.C.

§ 1201, et seg. (1976 & Supp. III) which requires, inter

alia, that coal miners restore land to its original con-

dition after mining it, and prohibits mining in certain

locations. 452 U.S. at 269. The district court found that

it was “economically and physically impossible” to re-

store mines on steeply sloped property to their original

condition. Jd. at 293. This Court held that the taking

issue was not ripe for judicial resolution because

There is no indication in the record that appellees

have availed themselves of the opportunities pro-

vided by the Act to obtain administrative relief by

requesting either a variance from the approximate-

original-contour requirement of § 515(d) or a waiver

from the surface mining restrictions in § 522(e). If

appellees were to seek administrative relief under

these procedures, a mutually acceptable solution might

well be reached with regard to individual properties,

thereby obviating any need to address the constitu-

tional questions.

Id. at 297.

Similarly, in Williamson County a developer challenged

« change in a zoning ordinance as a “taking” in violation

12

of the Fifth and Fourteenth Amendments. Following the

zoning change, the developer submitted a revised prelimi-

nary plat to the regional planning commission. The com-

mission rejected it, raising eight specific objections.

Based on the objections, the developer claimed that the

zoning change reduced the number of housing units he

could build on his property from 736 to 67.° 473 U.S. at

182. Williamson County has a board of zoning appeals

which has the power to grant variances which could have

resolved at least five of the commission’s eight objections.

Id. at 3117-18. The developer, like Harsh, sued precipi-

tously without seeking variances from either the commis-

sion or the board of zoning appeals. Because the developer

did not seek the variances, this Court held that its claim

was not ripe.

This case requires the same result as Hodel and

Williamson County. Denver also has a variance proce-

dure which Harsh did not even attempt to follow. In

fact, Harsh has made no effort to develop its property,

as did the developer in Williamson County. Harsh ad-

mitted at trial that it has no immediate plans to develop

its property (Tr. at 190), and that, at the time of trial,

the property was leased, including an option to renew,

until 1991 to Howard Johnson for a 186-room motel with

a restaurant, cocktail lounge, and gasoline service station

(Tr. at 173, Exhibit 25). Article III of Chapter 41 of

the Code establishes a Board of Plan Enforcement Re-

view and Variation which has the power to grant vari-

ances from the Mountain View Ordinance and the South-

moor Park Amendment. Section 41-74 provides that the

Board has the power:

[t]o authorize, upon appeal in specific cases, such

variations from the terms of Chapter 10, subject to

the terms and conditions fixed by the Board, as will

not be contrary to the public interest where, owing to

9 Other testimony asserted that the developer could build as many

as 300 units. 473 U.S. at 182 (1985).

13

exceptional and extraordinary circumstances, literal

enforcement of Chapter 10 would result in unneces-

sary hardship.

Code, Section 41-74, attached as Appendix A.’ At this

stage, Harsh is, as the Court wrote in Ayins, “free to

pursue (its) reasonable investment expectations by sub-

mitting a development plan te local officials,” 447 U.S. at

262, applying for a building permit, and seeking a vari-

ance—all of which it must do before presenting this

Court with a ripe, concrete controversy. As the Court

wrote in Williamson County, “whether the property

taken is viewed as the land itself or respondent’s expec-

tation interest in developing the land as it wished, it is

impossible to determine the extent of the loss or inter-

ference until the Commission has decided whether it will

grant a variance from the application of the regula-

tions.” 473 U.S. at 192 n.12.

II. The Southmoor Park Amendment Does Not Deny

Harsh The Economically Viable Use Of Its Land.

In view of the foregoing, Harsh raises no substantial

federal question, and presents no issues that have not

been settled urder well-established case law. Harsh’s

only challenge to the amendment is that it is facially

invalid. See Keystone Bituminous Coal Association v.

DeBenedictus, 107 8. Ct. 1232, 1247 (1987). As Harsh

concedes, the test in a facial challenge is straight-

forward: “[a] statute regulating the uses that. can be

made of property effects a taking if it ‘denies an owner

economically viable use of his land.’” J.S. at 106 n.14

(quoting Keystone, 107 S. Ct. at 1247 and Hodel, 452

U.S. at 295-96). This test presents a challenger with an

10 Appellees wish to bring to the Court’s attention, pursuant to

F.R.E. 201(b) and (f), that the Denver Board of Plan Enforce-

ment Review and Variation has granted variances from the Moun-

tain View Ordinance to permit buildings which intrude in the view

plane. E.g., Terracentre Association (4/9/81); United Bank of

Denver and Gerald Hines (jointly) (1/17/80).

14

“uphill battle’ which is “made especially steep” where,

as here, the petitioner has not claimed that its existing

use of the property is commercially impracticable. Key-

stone, 107 S. Ct. at 1247. The record is undisputed that

Harsh’s existing property uses are unimpaired by the

amendment (Tr. at 187), and that its property value

with the Southmoor Park Amendment exceeds $6 million

(Tr. at 185).

Harsh does not assert that the Mountain View Ordi-

nance is an invalid exercise of the police power. Nor is it

an unconstitutional taking. It is well settled that the

fact that an ordinance deprives a property owner of its

most beneficial use of its property does not render the

ordinance unconstitutional. E.g., Goldblatt v. Town of

Hempstead, 369 U.S. 590 (1962). An ordinance may

deprive a landowner of as much as 921% percent of his

property value without constituting a taking. Hadacheck

v. Sebastian, 239 U.S. 394 (1915). The Court has sus-

tained as a valid exercise of police power,'' city ordi-

nanees restricting building height, Welch v. Swasey, 214

U.S. 91 (1909), establishing setbacks, Gorieb v. Fox,

274 U.S. 603 (1926),** and implementing other restric-

11 This Court has written that the values represented by police

power are “spiritual as well as physical, aesthetic as well as mone-

tary. It is within the power of the legislature to determine that the

community should be beautiful as well as healthy, spacious as well

as clean, well-balanced as well as carefully patrolled.” Berman v.

Parker, 348 U.S. 26, 33 (1954). See also Village of Belle Terre v.

Boraas, 416 U.S. 1, 13 (1974) (“The police power is not confined

to elimination of filth, stench, and unhealthy places. It is ample

to lay out zones where family values, youth values, and the blessings

of quiet seclusion and clean air make the area a sanctuary for

people.’’).

12 Gorieb also relied on principles of comity and federalism to

uphold the setback ordinance:

State legislature and city councils, who deal with the situation

from a practical standpoint, are better qualified than the courts

to determine the necessity, character and degree of regulation

which these new and perplexing conditions require; and their

15

tions which deprive a landowner of uses of air space

above his property. E.g., Penn Central Transportation

Company v. New York City, 438 U.S. 104 (1978).

In Penn Central, this Court confirmed that states and

cities may, as a legitimate exercise of their police power,

restrict uses of land to preserve the character and aes-

thetics of a community. “Before considering these, we

emphasize what is not in dispute... . this Court has

recognized, in a number of settings, that States and

cities may enact land-use restrictions or controls to

enhance the quality of life by preserving the character

and desirable aesthetic features of a city...” 438 US.

at 129 (citations omitted). The Court in Penn Central

upheld a landmark preservation law against landowners’

contentions very similar to those made by Harsh in this

case, i.e., that the law imposed disproportionate burdens

on them, appropriated the airspace above their property,

conclusions should not be disturbed by the courts unless clearly

arbitrary and unreasonable.

274 U.S. at 608; see also Welch v. Swasey, 214 U.S. 91, 105-07

(1909). As Justice Marshall has written, the role of the Supreme

Court is not to “sit as a zoning board of appeals.” Village of Belle

Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting).

18 States have long been mindful of the necessity of height re-

strictions in various settings. As early as 1885, an amendment to

the New York tenement house laws restricted the hefght of all

residential buildings to 80 feet on streets over 60 feet wide. New

York Laws, Ch. 454 (1885). In Massachusetts, an 1895 statute

permitted towns to limit the height of buildings near parks to 70

feet, with exceptions for steeples and domes. Mass. Gen. Laws,

Ch. 13 (1896); Ch. 379 §1 (1897). Contemporary examples of

such regulations abound; cases in California, Connecticut, Hawaii,

Illinois, Iowa, Florida, Maryland, Massachusetts, Minnesota, New

Hampshire, New Jersey, New York, North Carolina, North Dakota,

Ohio, Pennsylvania, Vermont, Virginia, Washington and Wiscon-

sin have all upheld height restrictions. R. Anderson, American

Law of Zoning 3d §§ 9.54, 9.55 (1986); A. Rathkopf and D. Rath-

kopf, The Law of Zoning and Planning § 34.05 (1987) ; N. Williams,

American Planning Law, Ch. 67 (1985). See also, Cochran v.

Preston, 108 Md. 220, 70 A. 113 (1908) (upholding height limita-

tion in the area surrounding the Washington Monument).

16

and significantly diminished their property value. The

Court rejected Penn Central’s argument that it had been

wholly deprived of a discrete segment of its property, the

airspace above it:

[T]he submission that appellants may establish a

“taking” simply by showing that they have been

denied the ability to exploit a property interest that

they heretofore had believed was available for develop-

ment is quite simply untenable. Were this the rule,

this Court would have erred not only in upholding

laws restricting the development of all rights, but

also in approving those prohibiting both the sub-

jacent and the lateral development of particular par-

cels. “Taking” jurisprudence does not divide a single

parcel into discrete segments and attempt to deter-

mine whether rights in a particular segment have

been entirely abrogated.

Id. at 130 (citations omitted). Last term, the Court,

upholding restrictions on the location of adult movie

theatres, reaffirmed that “a city’s interest in attempting

to preserve the quality of urban life is one that must

be accorded high respect.” City of Renton v. Playtime

Theatres, Inc., 106 S. Ct. 925, 930 (1986) (quoting

Young v. American Mini Theatres, Inc., 427 U.S. 50, 80

(1974) (Powell, J., concurring) ).

Under Keystone, Harsh raises a federal question only )

if it meets a simple, but strict test: whether the Moun-

tain View Ordinance deprives Harsh of economically

viable use of its land. Harsh ignores the Keystone test

and asks the Court to look to the amendment’s “interfer-

ence” with Harsh’s “investment-backed expectations.”

(J.S. at 10, 11).%* Harsh, however, presented no testi-

14 Harsh asserts that Denver has “plucked strands” from Harsh‘s

“bundle of rights” by depriving it of estimated future profits (J.S.

at 10-11). As strands go, however, the loss of future profits is “a

slim reed upon which to rest a takings claim.” Andrus v. Allard,

441 U.S. 51 (1979). Harsh’s present use of its property, which

must be considered its primary expectation concerning the use of

its property, Penn Central, 438 U.S. at 136, is unimpaired.

17

mony as to its investment-backed expectations. The

only testimony it presented as to the value of its property

consisted of the surmise and speculation of one of its

corporate officers. Harsh offered no testimony as to its

plans for the property beyond the terms of the Howard

Johnson lease. With no development plans, its existing

use of its property unimpaired and its property valued

at six million dollars, Harsh cannot argue that it has

been deprived of economically viable use of its land and

thus fails to satisfy the threshold test of Keystone.

CONCLUSION

This appeal should be dismissed for lack of jurisdiction

because it is not ripe. The appeal also does not raise a

substantial federal question. For the reasons stated

above, this Court should dismiss this appeal or affirm the

decision of the Colorado Supreme Court.

Dated this 20th day of May 1987.

STEVEN H. KAPLAN

Denver City Attorney

ROBERT M. KELLY

Assistant City Attorney

1437 Bannock Street, Room 353

Denver, Colorado 80202-5375

(303) 575-2665

Attorneys for Defendant-A ppellees

JAMES M. LYONS *

ARNOLD C, MACDONALD

ROTHGERBER, APPEL, POWERS

& JOHNSON

One Tabor Center, Suite 2800

1200 17th Streee

Denver, Colorado 80202

Telephoiue: (303) 623-9000

Attorneys for Defendant-

Intervenor-A ppeilees

* Counsel of record

la

APPENDIX A

Sec. 41-74. Powers.

Subject to the limitations enumerated herein, the board

of plan enforcement review and variation shall have and

exercise the following powers in connection with chap-

ter 10 but with no other portion, of this Code. In the

exercise of its powers, the board may reverse or affirm,

wholly or partly, or may modify the order, requirement,

decision or determination appealed from and may make

such order, requirement, decision or determination as

ought to be made, and, to that end, shall have all the

powers of the officer or department from whom the

appeal is taken.

(1) Administrative review. To hear and decide appeals

where it is alleged there is error in any order, re-

quirement, decision or determination made by an

administrative official in the enforcement of chap-

ter 10.

(2) Variations. To authorize, upon appeal in specific

cases, such variations from the terms of chapter 10,

subject to terms and conditions fixed by the board,

as will not be contrary to the public interest where,

owing to exceptional and extraordinary circum-

stances, literal enforcement of the provisions of

chapter 10 would result in unnecessary hardship.

Every variation authorized hereunder shall not be

personal to the applicant therefor, but shail be

transferable and shall run with the land. No varia-

tion shall be authorized hereunder unless the board

shall find that all of the following conditions exist:

a. That the use proposed by the applicant is a per-

mitted use in the zoning district applicable to

the subject land;

b. That literal enforcement of chapter 10 would

preclude a reasonable development of the land of

the applicant for the use proposed;

2a

ce. That the development of the land proposed by

the applicant would not be such as to defeat the

purposes of chapter 10;

d. That the development proposed by applicant is

the minimum development which would be needed

to secure for applicant from the land a reason-

able return in service, use or income;

e. That the development proposed by applicant

would not result in damage to neighboring prop-

erties or public lands.

(3) Oaths and attendance of witnesses. For the purpose

of exercising the powers-enumerated in this section,

the board shall elect a chairperson and vice-chair-

person. The chairperson, or, in the chairperson’s

absence, the vice-chairperson, shall administer oaths

to or accept affirmations from witnesses and may

compel the attendance of witnesses. A failure or a

refusal to appear in response to a subpoena issued by

the board shall constitute a violation of this article.

(Code 1950, § 649.1-4)