Amicus Curiae Brief — McQueen v. South Carolina Department of Health & Environmental Control

| ‘Qu Gourt, U.S.

eT DED

a oct 2°

‘ E CLERK

No. 00-285 } OER OE 1

In The

Supreme Court of the United States

SAM B. McQUEEN,

Petitioner,

v.

SOUTH CAROLINA DEPARTMENT OF HEALTH AND

ENVIRONMENTAL CONTROL, OFFICE OF OCEAN AND

COASTAL RESOURCE MANAGEMENT (formerly known as

SOUTH CAROLINA COASTAL COMMISSION),

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court of South Carolina

BRIEF OF THE NATIONAL ASSOCIATION OF HOME

BUILDERS AND THE CALIFORNIA BUILDING

INDUSTRY ASSOCIATION AS AMICI CURIAE IN

SUPPORT OF THE PETITIONER

KENNETH B. BLEY

(Counsel of Record)

COX, CASTLE & NICHOLSON LLP

2049 Century Park East, 28th Floor

Los Angeles, CA 90067

(310) 284-2231

[ADDITIONAL COUNSEL LISTED INSIDE FRONT COVER]

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MARY DiCRESCENZO

THE NATIONAL ASSOCIATION OF

- HOME BUILDERS

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 822-0250

DAVID CHRISTIAN SMITH

THE BUILDING INDUSTRY LEGAL

DEFENSE FOUNDATION

1330 South Valley Vista Drive

Diamond Bar, CA 91765

(909) 396-9993

Attorneys for Amici Curiae

THE NATIONAL ASSOCIATION OF HOME

BUILDERS and THE BUILDING INDUSTRY

LEGAL DEFENSE FOUNDATION

i

TABLE OF CONTENTS

Page

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AND THE BUILDING

INDUSTRY LEGAL DEFENSE FOUNDATION AS

AMICI CURIAE IN SUPPORT OF THE

a eT isisststnisinvalephataiitdaniasees asaieebdetedahindaiaentlééissarides l

THE INTERESTS OF THE AMICI CURIAE ARISE

FROM THEIR MEMBERS’ CONCERNS AS TO

THEIR ABILITY TO ENSURE THAT THEIR

RIGHT TO RECEIVE JUST COMPENSATION IS

NOT LOST THROUGH THE MERE PASSAGE OF

PR iicsissinctadiennterensscadedinaibinedi A aniatsispisisnusredlakinonss l

SUMMARY OF THE ARGUMENT ............ccccccccscsseseseees 3

ARGUMENT 5

I. THE RULE FOLLOWED BY THE SOUTH

CAROLINA SUPREME COURT WILL

DEPRIVE A SUBSTANTIAL NUMBER OF

LANDOWNERS OF THEIR RIGHT TO JUST

COMPENSATION IF IT IS ALLOWED TO

Il. NNT Seni coicennil bs tecediadterikicdsieiusaiidcnsabassanceis 10

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Agins v. City of Tiburon,

467 UD. E06 GHD wncuisicsennnies aeeseeeneeneens 2

Bowles v. United States,

31 Bod. C2. 37 (GSD cricccniieiiigdaw 5

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

$26 US. GBT (UGGS ccnnencienctacnnniniscaatnatinslisstsntnipiiinn 2

Deltona Corp. v. United States,

657 F.2d 1184 (Ct. Cl. 1981),

cert. denied, 455 U.S. 1017 (1982) ...................0008 6

Dolan v. City of Tigard,

S22 U.S. FPO CIGD) cccisinintisncriataticiiaaasitntntcietcincneis 2

Forest Properties, Inc. v. United States,

FD Pad. CL. FOCI ee ecccisssciiacintsanidininthatpautes 6

Good v. United States,

189 F.3d 1355 (Fed. Cir. 1999),

cert. denied, 120 S.Ct. 1554 (2000)....................000 6

Loveladies Harbor, Inc. v. United States,

2B F 38 8 17E Gee, Ca, SEO eciicetcichitensenicncricnss 6

iil

- TABLE OF AUTHORITIES (Cont.)

Page(s)

Lucas v. South Carolina Coastal Council,

PP AAs BOD CE DUD cassccinssscinsacscsnsnsssovssccave 4,5

MacDonald, Sommer & Frates v. Yolo County,

REE Gite TIED sipeanicsistscasssmsansnrasianccomnens 2

Nollan v. California Coastal Commission,

NE EU IIED iirebicctucdpsridessucistnscrcissrncnssnsdsarnes 2

Palm Beach Isles Associates v. United States,

206 F.3G 1374 (Ped. Cir: 2000) ..........ccccsssccsecosceess 7

Rindge Co. v. Los Angeles County,

UE A PRU EED itisicsesnnsxicasacnnsscksinarubscassecascons 7

San Diego Gas & Electric Co. v. City of San Diego,

RE PMS GROEN Sinentccsacncisscceccaserssnrscasseisciavenas 2

Suitum v. Tahoe Regional Planning Agency,

Gee FI Fane CRIED sesscscvehisinias sscsancapiecunandaiass 2, 6

Summa Corp. v. California ex rel. State

Lands Commission,

ie EE fen scsicsiicsansincbiiinianntejaveacensiecesann 7

United States v. 198.73 Acres of Land,

800 F.2d 434 (4th Cir. 1986 uu... cc ccesescseeseees 10

iv

TABLE OF AUTHORITIES (Cont.)

Page(s)

Wetlands Action Network v. United States

Army Corps of Engineers,

ok FSG TEGS CH Ca BOG) vs escscisesccissesessrccscsnsee 7

Williamson County Regional Planning

Commission v. Hamilton Bank,

STF RA EE ED ttle tamidnsadivaisivtvencaceiniioninl 2

STATE CASES

AVCO Community Developers, Inc. v. South Coast

Regional Commission,

17 Cal. 3d 785, 132 Cal.Rptr. 386, 553 P.2d

546 (1976), app. dismissed and cert. denied,

Se Shes PORATED ‘ciishcheiiphancinntshendakidecilaibeameitaied 6

Arverne Bay Construction Co. v. Thatcher,

278 N.Y. 222, 15 N.E.2d 587 (1938) .............ccceee0 9

Erb v. Maryland Department of Environmental

Protection,

110 Md.App. 246, 676 A.2d 1017 (1996) ............. 5

Gerhard v. Stephens,

68 Cal. 2d 864, 69 Cal. Rptr. 612, 442

I Ce IED hinisiiinitetiisaish eacioltabiasiadasahadevitiaabaten 9

Vv

TABLE OF AUTHORITIES (Cont.)

Page(s)

Karam v. State of New Jersey, Department of

Environmental Protection,

308 N.J. Super. 225, 705 A.2d 1221 (1998),

aff'd mem., 157 N.J. 187, 723 A.2d 943, cert.

Bahed, VTS B.S CESPI) receescsttsnasscnevousvensicctaanns 8

Landgate v. California Coastal Commission,

17 Cal.4th 1006, 73 Cal.Rptr.2d 841, 953 P.2d

1188, cert. denied, 525 U.S. 876 (1999) ............. 10

Mannheim v. Superior Court,

3 Cal.3d 678, 91 Cal.Rptr. 585, 478 P.2d 17

(TOD sesscscicrntoticd ahnigeeninsnnieainsadanuneninaaeen 10

Mayhew v. Town of Sunnyvale,

964 S.W.2d 922 (Tex. 1998), cert. denied, 526

TF MB, CIS CRUD “conncstamaninnccdeneeccubiniemnadanlonahad 8

People v. Rindge,

174 Cal. 743, 164 P. 633 (1917) ..............000. 7,8

State of Florida, Department of Environmental

Protection v. Burgess,

2000 WL 889840 (Fla.App. July 6, 2000) ............. 8

FEDERAL STATUTES

DO RAI: OR ii ora es ee 5

vi

TABLE OF AUTHORITIES (Cont.)

Page(s)

TREATISES

1 CJS., Abandonment, § 7.b, Subjects of

abandonment, Real property and rights or

interests therein at 14 (1985 and 2000 Cum.

Anmaatl Pochet PU) svcsiscinisnsniaviiccnide 9

11 Thompson on Real Property, § 91.07, Title by

Abandonment at 23 (Thomas ed. 1994 and

2008 Comm. BAD), osccecsssscsincissnisiiscinensnninomamuneailivins 9

l

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AND THE BUILDING

INDUSTRY LEGAL DEFENSE FOUNDATION AS

AMICI CURIAE IN SUPPORT OF THE

PETITIONER

The National Association of Home Builders

(“NAHB”) and the Building Industry Legal Defense

(“BILD”) Foundation have received the parties’ written

consent to file this brief as amici curiae in support of the

petitioner and have filed the letters of consent with the

Clerk of the Cour..!

THE INTERESTS OF THE AMICI CURIAE ARISE

FROM THEIR MEMBERS’ CONCERNS AS TO

THEIR ABILITY TO ENSURE THAT THEIR

RIGHT TO RECEIVE JUST COMPENSATION IS

NOT LOST THROUGH THE MERE PASSAGE OF

TIME

The NAHB represents over 200,000 builder and

associate members throughout the United States. Its

members include people and firms that construct and

supply single family homes as well as apartment,

condominium, commercial and industrial builders, land

developers, and remodelers. It is the voice of the

American shelter industry. It is, therefore, concerned with

any judicial decision that calls into question the remedy

available to its members when, as in the case at bar,

No counsel for either party authored any part of this brief.

No person or entity other than the NAHB and the BILD

Foundation made any monetary contribution to the

preparation or submission of this brief.

2

governmental action which has deprived them of all viable

economic use of their land is held immune from the

remedy provided by the Just Compensation Clause merely

because the landowner did not immediately begin

development.

The NAHB has been before the Court as an amicus

curiae or as “of counsel” to the landowner in a number of

cases involving the rights of landowners to use their

property and the remedy to be applied when those rights

are interfered with. These include Agins v. City of

Tiburon, 447 U.S. 255 (1980), San Diego Gas & Electric

Co. v. City of San Diego, 450 U.S. 621 (1981), Williamson

County Regional Planning Commission v. Hamilton Bank,

473 U.S. 172 (1985), MacDonald, Sommer & Frates v.

Yolo County, 477 U.S. 340 (1986), Nollan v. California

Coastal Commission, 483 U.S. 825 (1987)2, Dolan v. City

of Tigard, 512 U.S. 374 (1994), Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725 (1997), and City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687 (1999).

The BILD Foundation is a wholly owned

subsidiary of the Building Industry Association of

Southern California, a constituent member of the NAHB,

whose 1,800 members include a significant number of

residential developers and associate businesses that take

part in building 70% of all new residential units annually

in the Southern California region.

. i Court’s opinion cited the NAHB’s brief. 483 U.S. at

3

The NAHB and the BILD Foundation submit their

amici curiae brief in support of the petitioner in the present

case to convince the Court to grant its writ of certiorari

because, at bottom, the question is whether a landowner

who has not made use of his or her land for some period of

time has effectively abandoned the land and is therefore

not entitled to recover the Just Compensation required by

the Fifth Amendment, made applicable to the States

through the Fourteenth Amendment, where governmental

action deprives the landowner of all viable economic use.

SUMMARY OF THE ARGUMENT

Landowners may leave their land undeveloped for

various lengths of time depending on their individual

needs and desires. Governmental action can prohibit all

economically beneficial use and leave the land with no

value. Normally, this would result in a taking which

would require the payment of the constitutionally

mandated Just Compensation. The South Carolina

Supreme Court has held that the mere passage of time can

provide an absolute shield for that governmental action

and relieve the government of paying Just Compensation.

The idea that landowners are exposed to a “use it or

lose it” rule of law is both bad law and bad policy. It will

force landowners to develop their land quickly because of

the fear that delay may mean the loss of all economically

beneficial use without the possibility of receiving Just

Compensation.

It will force courts to spend precious judicial

resources trying to figure out how long is too long. No

4

one — not the landowner nor the government — will know

before trial is over and the appellate review process is

finished whether the landowner waited too long or whether

the government is liable for the payment of Just

Compensation.

Black letter law may be simplistic but it does have

its place and this is one of them. Everyone — landowners,

government and, not least, courts — should know that the

length of time between the purchase of land and its

development is not relevant when governmental action has

deprived the land of all economically beneficial use. A

court is simply not justified in denying Just Compensation

because the landowner waited before developing his or her

land. Investment-backed expectations should not be

defeated because of a landowner’s desire or, in many

cases, need to wait to begin development.

This Court’s decision in Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992), laid down a

categorical rule that governmental action which deprives

land of all economically beneficial use constitutes a taking

for which constitutionally mandated Just Compensation

must be paid. This Court’s definitive statement whether

the mere passage of time can strip landowners of their

right to receive Just Compensation — whether the rule is to

be that a landowner must either use the land or, for all

practical purposes, lose it — is needed to ensure that all

landowners in the United States know precisely what they

must do — or need not do — in order to prevent

governmental actions from depriving them of all

economically beneficial use of their land without being

required to provide the constitutionally mandated Just

Compensation. If Lucas’s categorical rule bears a use-by

5

date, this Court should tell us so which, in turn, requires

that Mr. McQueen’s petition for certiorari be granted.

ARGUMENT

I. THE RULE FOLLOWED BY THE SOUTH

CAROLINA SUPREME COURT WILL

DEPRIVE A SUBSTANTIAL NUMBER OF

LANDOWNERS OF THEIR RIGHT TO JUST

COMPENSATION IF IT IS ALLOWED TO

STAND

Governmental action which deprives land of all

economically beneficial use constitutes a taking of the land

and the Constitution mandates that the government pay the

landowner Just Compensation. Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992). The South

Carolina Supreme Court’s decision, if it is allowed to stand

unreviewed, will, in all too many cases, override Lucas

because land frequently remains undeveloped for some

period of time before the landowner decides to develop it.

Landowners come in all shapes and sizes so, not

surprisingly, the delays between acquisition and

development may be anywhere from days to centuries.

Individuals buy land for their own use. Sometimes

they will act almost immediately after the purchase.

Bowles v. United States, 31 Fed. Cl. 37 (1994)(purchase of

a vacant lot for a retirement house and submission of an

application for a § 404 permit under the Clean Water Act,

33 U.S.C. § 1344, in the same year). Sometimes they wait

a few years. Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992)(two years between purchase and

enactment of the Beachfront Management Act which

6

resulted in a taking), and Erb v. Maryland Department of

Environmental Protection, 110 Md.App. 246, 676 A.2d

1017 (1996)(eight years between acquisition of family

land, held since the 1920s, and application for a septic tank

permit).

Some individuals have waited substantially longer

before seeking to develop their land. Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997)(15 years

between purchase of the land and submission of a

development application for a single house). Mr. McQueen

waited 30 years. (Pet. App. at la-2a.)

Developers of large projects also wait for varying

lengths of time before beginning to develop their land

although, the approval process being what it is, the time is

generally a matter of several years at a minimum. AVCO

Community Developers, Inc. v. South Coast Regional

Commisssion, 17 Cal.3d 785, 132 Cal.Rptr. 386, 553 P.2d

546 (1976), app. dismissed and cert. denied, 429 U.S.

1083 (1977)(four years between purchase and enactment

of the California Coastal Zone Conservation Act of 1972),

Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999),

cert. denied, 120 S.Ct. 1554 (2000)(eight years between

purchase of the land and application for a § 404 permit),

and Deltona Corp. v. United States, 657 F.2d 1184 (Ct. Cl.

1981), cert. denied, 455 U.S. 1017 (1982)(nine years

between purchase of the land and submission of a

development application in a multiphase development).

Time measured in decades is not at all uncommon.

Forest Properties, Inc. v. United States, 39 Fed. Cl. 56

(1997)(18 years between purchase of the land and

submission of a development application), Loveladies

7

Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir.

1994)(24 years between purchase of the land and denial of

§ 404 permit in a multi phase development), and Palm

Beach Isles Associates v. United States, 208 F.3d 1374

(Fed. Cir. 2000)(32 years between purchase of the land

and application for state wetlands fill permit).

It is even possible for land to remain undeveloped

for over a century before the landowner decides to develop

it. Playa Vista, the largest development project in the City

of Los Angeles, is currently being developed on land that

was originally acquired by patent from the Spanish

government in 1839. Summa Corp. v. California ex rel.

State Lands Commission, 466 U.S. 198, 202 (1984).

Planning for development on the land did not even begin

until 1979 and an application for a § 404 permit wasn’t

submitted until 1990. Wetlands Action Network v. United

States Army Corps of Engineers, 222 F.3d 1105, 1110-

1111 (9th Cir. 2000).

Landowners change their mind from time to time as

to what they wish to do with their land. The owners of

what is now Malibu, a portion of Los Angeles County

known through out the world as the home of the rich and

famous, asked the County to open a public road through

their property in 1885 but later changed their minds.

People v. Rindge, 174 Cal. 743, 164 P. 633 (1917).

Indeed, the owners fought to avoid having a road

condemned over their land. Rindge Co. v. Los Angeles

County, 262 U.S. 700 (1923).

Clearly, the Rindges did not want to develop their

land; it remained undeveloped, used only for ranching, for

8

half a century after Matthew Keller acquired it in 1882.

- People v. Rindge, supra, 174 Cal. At 746, 164 P. at 635.

The Mayhews bought 850 acres of land for

ranching purposes between 1941 and 1965 and an

additional 346 acres in 1985 and 1986 when they decided

to develop a minimum of 3,600 houses. Mayhew v. Town

of Sunnyvale, 964 S.W.2d 922 (Tex. 1998), cert. denied,

526 U.S. 1144 (1999).

The Schweinerts bought land from New Jersey in

1924, sold off pieces over the years and, in 1993, sold off a

piece to the Karams who immediately applied for a dock

construction permit. Karam v. State of New Jersey,

Department of Environmental Protection, 308 N.J. Super.

225, 705 A.2d 1221 (1998), aff'd mem., 157 N.J. 187, 723

A.2d 943, cert. denied, 120 S.Ct. 51 (1999).

If the rule laid down by the South Carolina

Supreme Court is a correct statement of the law, then the

Rindges, the Mayhews and the Karams would all be

denied Just Compensation simply because either they or

their predecessors in interest had waited too long or, in the

case of the Rindges and the Mayhews, had no investment

backed expectations suitable for constitutional protection

because they had used their land for other purposes and,

government could argue, had abandoned any claim to

more intensive use of their land. See, e.g., State of

Florida, Department of Environmental Protection v.

Burgess, 2000 WL 889840 (Fla.App. July 6, 2000)(no

reasonable investment-backed expectation for change in

use when landowner had used land for nature walks and

fishing for 32 years before applying for a state wetland fill

permit).

9

The common law, in California and generally, is

that real property cannot be abandoned. Gerhard v.

Stephens, 68 Cal.2d 864, 883, 69 Cal.Rptr. 612, 628, 442

P.2d 692, 708 (1968)(“... many California cases have

declared that a fee simple interest in real property may not

be abandoned.”)[italics in the original]. See generally, 11

- Thompson on Real Property, § 91.07, Title by

Abandonment at 23 (Thomas ed. 1994 and 2000 Cum.

Supp.), and 1 C.J.S., Abandonment, § 7.b, Subjects of

abandonment, Real property and rights or interests therein

at 14 (1985 and 2000 Cum. Annual Pocket Part).

The practical effect of the ruling by the South

Carolina Supreme Court, if it is allowed to stand, will be

equivalent to a rule of law that holds that a landowner has

abandoned his or her land if development is not begun and

rights vested before the law changes to the landowner’s

detriment. This would be a substantial change in the law,

one which, if it is to become the law (and it should not),

should come from this Court.

Title will presumably remain vested in landowners

such as Mr. McQueen but what is bare title worth if no use

is allowed and no Just Compensation must be paid?

Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222,

232, 15 N.E.2d 587, 592 (1938)(the only difference

between outright confiscation and an overly burdensome

restriction on use “is that the restriction leaves the owner

subject to the burden of payment of taxation, while

outright confiscation would relieve him of that burden.”).

Again, the practical effect will be an escheat to the

State, something which, like abandonment, is disfavored

by the common law in California and _ generally.

10

Mannheim v. Superior Court, 3 Cal.3d 678, 691, 91

Cal.Rptr. 585, 592, 478 P.2d 17, 24 (1970), and United

States v. 198.73 Acres of Land, 800 F.2d 434, 435 (4th Cir.

1986).

The concerns expressed above are important for

landowners throughout the United States but of even

greater importance for those in California where the courts

have come up with ways to avoid finding that a taking has

occurred. See, e.g., Landgate v. California Coastal

Commission, 17 Cal.4th 1006, 73 Cal.Rptr.2d 841, 953

P.2d 1188, cert. denied, 525 U.S. 876 (1999)(denial of all

viable economic use resulting from a _ mistaken

interpretation of the law cannot result in a taking).

Il. CONCLUSION

The NAHB and the BILD Foundation respectfully

request that this Court grant Mr. McQueen’s petition for

writ of certiorari.

11

DATED: October 20, 2000

Respectfully submitted,

Mary DiCrescenzo Kenneth B. Bley

The National Association (Counsel of Record)

Of Home Builders COX, CASTLE &

NICHOLSON LLP

David Christian Smith Attorneys for Amici Curiae

The Building Industry The National Association of

Legal Defense Foundation Home Builders and The

: Building Industry Legal

Foundation