Opposition Brief — Littman v. Gimello

a \

A J

No. 89-272 Supreme Court, U.S,

yack eae

= In The OCT 3 1985

Supreme Court of the United Statesers F. seanion y

_ October Term, 1989 CLERK

_— =.

a

vv

SEYMOUR LITTMAN, Individually

and as Mayor of the Township

of Millstone, DIANAMIC INDUSTRIES,

THE TOWNSHIP OF MILLSTONE,

a Municipal Corporation of the

State of New Jersey, and

COBBLESTONE-PENN LIMITED PARTNERSHIP,

Petitioners,

RICHARD GIMELLO, Executive Director,

and THE HAZARDOUS WASTE

FACILITIES SITING COMMISSION,

Respondents.

-

—

RESPONDENTS’ BRIEF AND APPENDIX IN

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF NEW JERSEY

7‘

vw

Peter N. PEeRReETTI, JR.

ATTORNEY GENERAL OF New JERSEY

Attorney for Respondents

R.J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

(609) 292-1509

Mary C. JACOBSON

Deputy Attorney General

Counsel of Record

JoHN A. Covino

Deputy Attorney General

On the Brief

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

J

QUESTIONS PRESENTED

1. Whether the declaration of certain real property

by the New Jersey Hazardous Waste Facilities Siting

Commission as a potential site for a hazardous waste

incinerator constitutes a taking of property without just

compensation in violation of the United States

Constitution?

2. Whether the Major Hazardous Waste Facilities

Sitihg Act, which provides for the exercise of the power

of eminent domain following the completion of a multi-

tier administrative siting process, is violative of the

United States Constitution?

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding in the court below are

accurately set forth by petitioners. Respondents note,

however, that the consolidation of cases mentioned by

petitioners was made by the trial court. The potential site

located in the Township of East Greenwich, New Jersey,

was eliminated from further consideration by respondent

Commission before the petition for certification was

sought before the New Jersey Supreme Court. Therefore,

none of the plaintiffs in the East Greenwich proceeding

participated in any way in the matter before the New

Jersey Supreme Court.

iii

TABLE OF CONTENTS

Page

ee» i

PARTIES TO THE PROCEEDING .................. ii

COUNTER-STATEMENT OF THE CASE............ 1

REASONS FOR DENYING THE WRIT

The Petition For A Writ of Certiorari Should Be

Denied Since The New Jersey Supreme Court

Correctly Decided That The Mere Designation Of

A Potential Site For A Hazardous Waste Incinera-

tor Did Not “Take” The Property Without Just

Compensation Under The United States Consti-

Dee aaah a xkke ke CNR eON AAG CA Kae ees 5

A. The Actions Of Respondents Have Not

Effectively Deprived Petitioners Of Benefi-

cial Use Of Their Property. Petitioners Have — -

No Right To Receive Compensation ....... 7

B. The Major Hazardous Waste Facilities Siting

Act Guarantees Full And Adequate Compen-

sation To Property Owners For All “Takings”

ES Uh RW aknkd sk we ue cas bats 11

ae ocd de yan shasecsckass vacates 15

iv

TABLE OF AUTHORITIES

Page

Cases CiteD

Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct.

1507, 18 L.Ed. 2d G81 (1967) .........cccsenecseces 11

Agins v. Tiburon, 447 U.S. 255, 100 S.Ci. 2138, 65

eo Fe. PCIe ier eee 14

First English Evan. Luth. Ch. v. Los Angeles Cty., 482 —

U.S. 304, 107 S.Ct. 2378, 96 L.Ed. 2d 250 (1987)

aleDeae Tee EEN Nae ee baukh ENA ME AbS esa eane™ 6, 8, 12, 13, 14

Kirby Forest Industries, Inc. v. United States, 467

U.S. 1, 104 S.Ct. 2187, 81 L.Ed. 2d 1 (1984)....... 8, 9

Littman v. Gimello, 115 N.J. 154, 557 A.2d 314 (1989)

dw Wbe eUU bees Sheu wee U eas Re eAWE DRS eae beee 2.4 %.7,8

Littman v. Gimello, 111 N.J. 639, 546 A.2d 550 (1988) ..... 4

Morgan v. United States, 304 U.S. 1, 58 S.Ct. 999, 82

eT TCS Tree errr CT eee 11

Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed.

PORE dx os vain 644s us peweaaenteaGbeds cepacess 11

Statutes CITED

FS We 8 Ff ee rerrrerrrr rier etc 1

ere ree Terre Ts Prey 2

CE Wanda ccs cceccashsecvavssecceesade 1, 3

EE, SIDS on kc vinsnn sed ussveaccsconecsus 2

IE SGA eswh stan edcessesencessaeseees oe

N.J.S.A. 13:1E-59(a)(1) through (5)...............065 2

SORE: MERI 5 in casted desssssesascesuuweiioes 3

SRL CUUNIIEE 5 Cod. annnd ceca cabenducensseeeecien |

TABLE OF AUTHORITIES - Continued

Page

ee ae 4,5

cd aS el Te lot ia Coa ld one eee 3

REGULATIONS CITED

OE TNs bn skin scan eee cceeucecnctasawas 1

Rutes Cirep

i i a ad 5

Nn LS ean G aaa compen 6

OTHER AUTHORITIES CITED

N.J. Rules of Court 2:2-3(a)(2) (Pressler ed. 1989)...... 3

APPENDIX

Cover to Draft Site Evaluation Report - GAF Pro-

posed Incinerator, Linden, N.J..................... la

COUNTER-STATEMENT OF THE CASE

The New Jersey Legislature enacted the Major Haz-

ardous Waste Facilities Siting Act (“Act”), N.J.S.A.

13:1E-49 et seq., in 1981. As the court below noted, the Act

created respondent Hazardous Waste Facilities Siting

Commission (“Commission”) and charged it “with the

responsibility of locating appropriate sites for the future

construction of hazardous waste facilities needed by the

State of New Jersey. N.J.S.A. 13:iE-59.” Littman v. Gimello,

115 N.J. 154, 157, 557 A.2d 314, 316 (1989) (Petitioners’

Appendix A, page 3a).

In February 1986, the Commission identified 11

potential sites it preliminarily believed to be environmen-

tally suitable for facility location. Seven of the sites were

potential sites for a hazardous waste incinerator. The

remaining four were potential sites for an above-ground

empiacement facility. Littman v. Gimello, supra, 115 N.J. at

158, 557 A.2d at 316 (Petitioners’ Appendix A, page 4a).

The identification of the 11 potential facility sites was

an extremely preliminary step by the Commission. It was,

in fact, not required by the Act and was thus preliminary

even to the beginning of the multi-step review process

established by the Act. N.J.S.A. 13:1E-59(a)(1) through (5).

The identification was made simply because the Commis-

sion needed to enter upon the potential sites for testing to

confirm or refute hydrogeological assumptions made

about each site relative to mandatory siting criteria. See

N.].S.A. 13:1E-57 and N.J.A.C. 7:26-13.1 et seq. The Com-

mission felt that a frank public announcement of even

such a preliminary step was the most appropriate course

to follow.

If the testing revealed that a site failed to conform to

the criteria, the site would be eliminated from further

consideration as a hazardous waste facility site. If a site

was found to conform to the criteria, the Commission

would then decide whether or not to propose that site for

designation as a facility site. N.J.S.A. 13:1E-59(a)(1).

In fact, the “proposal for designation” is only the

beginning of the multi-step administrative review process

mandated by the Act. Id. At least four additicnal steps

must occur before the Commission is considered to have

taken “final agency action” (subject to judicial review)

concerning the site. The steps are: (1) the awarding of a

grant from the Commission fo the affected municipality

for the conducting of a site suitability study by consult-

ants acting on behalf of the municipality; (2) the munici-

pal site suitability study itself; (3) a plenary adjudicatory

hearing before the New Jersey Office of Administrative

Law, in which the administrative law judge (ALJ) cannot

favorably recommend the site for location of the hazard-

ous waste facility unless the ALJ finds that the facility

will not constitute a substantial detriment to the public

health, safety and welfare of the affected municipality;

and (4) a vote by the Commission whether to affirm,

conditionally affirm or reject the ALJ’s findings. For that

vote, the Commission will be expanded by two additional

voting members. One will be appointed by the governing

body of the affected municipality and the other will be

appointed by the governing body of the county in which

the facility is located. N.J.S.A. 13:1E-59(a)(1) through (5)

and N.J.S.A. 13:1E-52(c).

The Commission’s decision is appealable as of right

to the Appellate Division of New Jersey Superior Court.

N.J.S.A. 13:1E-59(a)(5); N.J. Rules of Court 2:2-3(a)(2)

(Pressler ed. 1989). Once the administrative review proc-

ess is completed, an engineering design for the facility

has been approved and negotiations for the purchase of

the site have proven unsuccessful, the Commission is

authorized to exercise powers of eminent domain to

acquire the adopted site. N.J.S.A. 13:1E-81.

Among the seven potential incinerator sites identi-

fied by the Commission in February 1986 was real prop-

erty located within petitioner Township of Millstone (“the

Millstone potential site”). Petitioner Dianamic Industries

(“Dianamic”) owns a portion of the Millstone potential

site. Petitioner Cobblestone-Penn owns property adjacent

thereto. If the Millstone potential site were adopted by

the Commission - an event that has not yet occurred and

may never occur — a portion of petitioner Cobblestone-

Penn’s property may have to be condemned as part of a

“buffer zone” required for the facility. N.J.S.A. 13:1E-57.

Prior to identification of the Millstone potential site,

Cobblestone-Penn had plans to develop a senior citizens

mobile home park on its property. Absolutely nothing in

the Commission’s action in identifying the potential site

in Millstone has ever posed a legal impediment to such a

development. Nothing in the Act or its regulations has

placed any type of restriction, moratorium, “freeze” or

other prohibition whatsoever against the development of

the potential site. As the court below noted, “The identi-

fication of the eleven potential sites and the attendant

publicity did not prevent the landowners from using or

developing their property. Nothing in the Act or regula-

tions thereto poses a legal impediment to the use or

development of [petitioners’] land.” Littman v. Gimello,

supra, 115 N.J. at 162, 557 A.2d at 318 (Petitioners’ Appen-

dix A, page 9a).

Nevertheless, as the court below noted, petitioners

brought suit alleging “that the Act constituted a ‘taking’

of property without just compensation and due process in

violation of the United States and New Jersey Constitu-

tions.” Id. at 158, 557 A.2d at 316 (Petitioners’ Appendix

A, pages 4a to 5a). The trial court dismissed the com-

plaint (Petitioners’ Supplemental Appendix, page 28a).

The dismissal was affirmed by the Appellate Division of

New Jersey Superior Court substantially for the reasons

stated in the triai court’s opinion (Petitioners’ Supple-

mental Appendix, page 2a).

The New Jersey Supreme Court granted petitioners’

petition for certification. Littman v. Gimello, 111 N.J. 639,

546 A.2d 550 (1988). In November 1988, pending oral

argument before that court, respondent Commission pro-

posed the Millstone site for designation, the first step in

the administrative review process mandated by the Act.

Littman.v. Gimello, supra, 115 N.J. at 168, 557 A.2d at 321.

(Petitioners’ Appendix A, page 15a).*

* The ten other potential sites identified by the Commission

in 1986 were eliminated between 1986 and 1988. Testing con-

tinues at the Millstone potential site; the Commission could

eliminate that site at any time throughout the entire multi-step

review process if test results warrant such action. See N.J.S.A.

13:1E-59(c). Further, the Commission can eliminate the site in

(Continued on following page)

The New Jersey Supreme Court affirmed the Appel-

late Division’s decision. Littman v. Gimello, supra, 115 N.J.

at 169, 557 A.2d at 321 (Petitioner’s Appendix A, page

16a). The decision of the court below was rendered on

May 4, 1989. On August 3, 1989, petitioners filed their

petition for a writ of certiorari. Respondents submit that

the writ should be denied.

y%

vw

REASONS FOR DENYING THE WRIT

The Petition For A Writ of Certiorari Should Be

Denied Since The New Jersey Supreme Court

Correctly Decided That The Mere Designation

Of A Potential Site For A Hazardous Waste

Incinerator Did Not “Take” The Property With-

out Just Compensation Under The United

States Constitution.

The Court generally will issue a writ of certiorari

“only when there are special and important . reasons

therefor.” Rule 17.1. Among the reasons that may cause

the Court to issue a writ are “[w]hen a state court of last

resort has decided a federal question in a way in conflict

with the decision of another state court of last resort or of

a federal court of appeals” and “[w]Jhen a state

court . . . has decided an important question of federal

law which has not been, but should be, settled by this

Court, or has decided a federal question in any way in

(Continued from previous page)

favor of a site proposed by a hazardous waste industry. See

N.J].S.A. 13:1E-59(b) and (c). In fact, at this time the Commis-

sion is reviewing an application by GAF Chemical Corporation

to site the incinerator on GAF’s industrial tract in Linden, New

Jersey (Respondents’ Appendix, page 1a).

conflict with applicable decisions of this Court.” Rule

17.1(b) and (c).

Respondents submit that the petition in this case

demonstrates none of those reasons. The decision of the

court below was fully in accord with this Court's rulings

on the “taking” issue. The only case petitioners cite as

presenting a conflict, First English Evan. Luth. Ch. v. Los

Angeles Cty., 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250

(1987), is readily distinguishable. Further, as even peti-

tioners assert, this case presents “specific facts.” (Petition,

page 8). The decision would affect few, if any, individuals

beyond the litigants to this case.* |

Petitioners have summarized their argument as

follows:

The essence of petitioners’ complaint is that

the actions of respondents have effectively

deprived petitioners of any beneficial use of

their property and they are entitled to compen-

sation now because of that deprivation; more-

over, the Major Hazardous Waste Facilities

Siting Act is unconstitutional because it pre-

cludes such compensation now and does not

guarantee property owners full and adequate

compensation later. [Petition, pages 5 a

The reasons why the writ should be denied concerning

each of those points will be addressed seriatim.

* The only other potential site currently under consideration

by the Commission is the GAF site in Linden, New Jersey. See

note, page 4 supra. Since GAF has applied to build the facility,

little if any land would have to be condemned if the Commis-

sion chose the Linden potential site instead of the Millstone

potential site.

= ==»

-—<— =

A. The Actions Of Respondents Have Not Effec-

tively Deprived Petitioners Of Beneficial Use

Of Their Property. Petitioners Have No Right

To Receive Compensation.

The actions of the Commission to date concerning the

property in question have been nothing more than the

preliminary steps of identifying it as a potential hazard-

ous waste facility site, proposing the site for designation

and issuing a grant to Millstone Township for perform-

ance of a municipal site suitability study as required by,

the Act. N.J.S.A. 13:1E-59.* Other administrative review

steps, such as a plenary hearing before the New Jersey

Office of Administrative Law - in which the Commission

has the burden of proof by a “clear and convincing”

standard - are also required by the Act even before

judicial review occurs. Id.

a

The Millstone potential site could be eliminated from

further consideration at any time throughout the multi-

step administrative review process which has now barely

begun. See Counter-Statement of Facts, page 2, supra. At

no point until the Commission actually exercises eminent

domain powers, which it cannot do until after adoption

of the site following the administrative law hearing

* Only the identification of the site as a potential facility site

had occurred when petitioners brought suit in 1986. The pro-

posal for designation occurred in November 1988, while the

case was pending before the New Jersey Supreme Court. Lift-

man v. Gimello, supra, 115 N.J. at 168, 557 A.2d at 321. (Peti-

tioners’ Appendix A, page 15a). Issuance of the grant occurred

in August 1989, about three months after the court below

rendered its decision.

8

(which hearing and adoption have not yet occurred and

may never occur), does the Commission have any author-

ity whatsoever to impose any restrictions, moratoriums,

“freezes,” or other prohibitions of any kind against devel-

opment of a potential site. As the court below stated,

“Nothing in the Act or regulations thereto poses a legal

impediment to the use or development of [petitioners’]

land.” Littman v. Gimello, supra, 115 N.J. at 162, 557 A.2d at

318 (Petitioners’ Appendix A, page 9a).

The decision of the court below that no “taking” has

occurred is therefore fully in accord with decisions of this

Court. Where no law infringes upon the landowner’s

freedom to make whatever use it pleases of its property,

no taking has occurred. Kirby Forest Industries, Inc. v.

United States, 467 U.S. 1, 15, 104 S.Ct. 2187, 2196, 81

L.Ed.2d 1, 13 (1984). In Kirby Forest, “petitioner [was]

unable to point to any statutory provision that would

have authorized the Government to restrict petitioner’s

usage of the property prior to payment of the award.”

Ibid. (Footnote omitted). The same is true in this case.

Compare, First English Evan. Luth. Ch. v. Los Angeles Cty.,

supra, 482 U.S. at 307, 107 S.Ct. at 2381-2382, 96 L.Ed.2d at

259, in which an interim ordinance indeed prohibited

construction within a flood protection area.

Petitioners contend, however, that even absent legal

restrictions upon development, the Commission’s consid-

eration of the potential site effects a taking because it

hangs “like a poisoned yellow cloud” over such develop- -

ment. (Petition, page 10). The court below accepted as

true the allegations that the Commission’s actions had

adverse effects on salability and financing. Littman v.

Gimello, supra, 115 N.J. at 162-163, 557 A.2d at 318-319

(Petitioners’ Appendix A, pages 8a to 10a). The court

below correctly found nonetheless that no taking had

occurred thereby because, as it stated, “[t]he cases are

legion that hold that decreases in the value of property

during governmental deliberations, absent extraordinary

delay, are incidents of ownership and do not constitute a

taking.” Id? at 163, 557 A.2d at 319 (Petitioners’ Appendix

A, page 10a). The court below then quoted this Court’s

decision in Kirby Forest, supra:

(I)n the absence of an interference with an

owner’s legal rights to dispose of his land even

a substantial reduction in the attractiveness of

the property to potential purchasers does not

entitle the owner to compensation under the

Fifth Amendment. Kirby Forest Indus. v. United

States [supra], 467 U.S. [at] 15, 104 S.Ct. [at]

2197, 81 L.Ed.2d [at] 14. [Littman v. Gimello,

supra, 115 N.J. at 163, 557 A.2d at 319 (citations

omitted). (Petitioners’ Appendix A, page 10a)].

Petitioners argue that the procedures of the Act effect

a taking because the landowner “faces almost total loss of

property rights” for an indefinite period which peti-

tioners claim could last up to 92 months from the identi-

fication made in February 1986. (Petition, page 14).

Respondents submit that petitioners’ argument cannot

support the issuance of the writ.

First, the decision of the court below that the land-

owner petitioners have not lost the beneficial use of their

property was fully consistent with decisions of this

Court. The legal premise of petitioners’ argument is thus

invalid. Of perhaps even greater significance is the fact

that petitioners’ claim of a present taking is based

entirely upon gross conjecture as to the future. Petitioners

| ,

10

contend that the period from t

as a potential site in Februar

demnation (assuming that co:

could take 41 to 84 months (F

41 to 86 months (Petition, pa

months (Petition, pages 12 ar

The variation in petitione

utter speculation of their cla

because the property may e

because an uncertain, perhap

may elapse between identificat

because adverse effects arisir

may continue during that time

rect in ruling that no present

Respondents submit that |

correct. In rejecting petitior

below simply refused to enga

stone potential site might nev

mission. It could be eliminate

testing. It could be eliminate

law hearing. It could be elimi

potential site. Even if the M

adopted, an agreement conce

be reached. Any of those oc

eliminate the need for conden

clock” — and the uncertainty

periods predicted by petitic

stated:

Essentially, plaintiffs

based on conjecture ali

contend that the procedu

vide for an excessive peri

- forty-one to 101 months

identification of a poten

e property’s identification

1986 to its eventual con-

Jemnation in fact occurs)

tition, page 5) or perhaps

e 10) or perhaps 56 to 92

t 19).

’ own forecasts belies the

ns. Petitioners argue that

entually be condemned,

lengthy, amount of time

on and condemnation and

’ from such identification

the court below was incor-

taking has occurred.

ie court below was indeed

rs’ argument, the court

e in conjecture. The Mill-

r be adopted by the Com-

i as the result of ongoing

| after the administrative

ited in favor of the Linden

lstone potential site were

ning compensation could

irrences would obviously

iation and could “stop the

- far earlier than the time

ers. As the court below

laim a present taking

it future facts. They

es under the Act pro-

d of delay of between

from the time of the

al site to its eventual

11

condemnation. As the trial court correctly held,

however, the question is whether the Commis-

sion’s actions to date constitute a taking. The

procedures under the Act on their face are not

unreasonable. We decline to speculate about

whether in practice their implementation will

~. result in delays that are so excessive as to consti-

tute a taking. [/d. at 168, 557 A.2d at 321 (Peti-

tioners’ Appendix A, pages 15a to 16a)].

The court below stated that “[iJt is unwise and

unnecessary to deal with such speculative and hypotheti-

cal questions.” Id. (Petitioners’ Appendix A, page 16a).

This Court has long held that it will not attempt to

forecast issues or decide them hypothetically. See Morgan

v. United States, 304 U.S. 1, 26, 58 S.Ct. 999, 1001, 82 L.Ed.

1129, 1136 (1938); Smiley v. Holm, 285 U.S. 355, 375, 52

S.Ct. 397, 402, 76 L.Ed. 795, 804-805 (1932). See also Abbott

Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507,

1515, 18 L.Ed.2d 681, 691 (1967) (courts should avoid

“premature adjudication” by avoiding “abstract disagree-

ments”). The court below committed no error in holding

likewise.

Since the decision of the court below was fully in

accord with the rulings of this Court and since there is no

conflict between various state or federal courts on the

issue, the petition for certiorari should be denied.

_

B. The Major Hazardous Waste Facilities Siting

Act Guarantees Full And Adequate Compensa-

tion To Property Owners For Ali “Takings” Of

Their Property.

Petitioners’ second major contention is that the Act

violates the United States Constitution in that it gives the

owner of a potential site “neither the ability to use his

12

property nor certainty as to the parameters of his tempor-

ary or permanent loss nor temporary compensation nor

permanent compensation.” Petition, pages 19 to 20. Peti-

tioners further contend that the court below erroneously

failed to consider this Court’s opinion in the First English

Evangelical case in rejecting petitioners’ argument (Peti-

tion, page 20).

Respondents submit that petitioners’ argument

clearly does not justify issuance of a writ of certiorari. The

opinion of the court below does not conflict with any

decisions of this Court, including the First English Evan-

gelical case. Several reasons support respondents’

position.

First, as respondents set forth previously in this brief,

the court below was entirely correct in ruling that the Act

places no impediments upon the ability of the owner of a

potential site to use his property. See page 8, supra. Once

again, petitioners rely upon an invalid premise to support

their claim.

Second, as respondents have also set forth, the

periods of time petitioners cite are obviously the product

of speculation. See page 10, supra. At this point no one -

petitioners, respondents or the Court - can state with any

certainty at all whether or not the Millstone potential site

will;be adopted at the end of the multi-step administra-

tive review process and, even if it is adopted, whether

condemnation proceedings will be necessary at that

point. Petitioners’ claim that the Act places them in a

“uniquely negative position . . . for a period of at least 5

years” (Petition, page 19) is supportable only by

hypothesis.

13

Third, the landowner is protected no maiter what

happens to the site. As the court below observed:

There is no allegation that [petitioners] have

lost their property or that they are threatened

with losing their property. There is no evidence

that if the hazardous-waste project does not go

through, the permanent value of their property

will nevertheless be diminished. They will be

left in a fine position to develop their land. On

the other hand, if it does go through, they will

receive compensation for their property . .

[Littman v. Gimello, supra, 115 N.J. at 166-167, 557

A.2d, at 320 (Petitioners’ Appendix A, page

13a)].

There is another possibility as well. If the site is adopted

and more than one hazardous waste firm seeks to become

the owner and operator of the facility, the value of the

property could substantially rise, rather than fall, as the

result of the competition between the firms for ownership

of the site.

Even under petitioners’ “worst case scenario” that

condemnation will in fact occur and that compensation

will be “based on a valuation already diminished by 5

years of the property’s being submerged in a yellow

cloud of fear, emotion and threatened condemnation”

(Petition, page 20), the lower court’s ruling of the Act’s

constitutionality is fully consistent with decisions of this

Court. “[T]he valuation of property which has been taken

must be calculated as of the time of the taking, and

. depreciation in value of the property by reason of

preliminary activity is not chargeable to the govern-

ment.” First English Evan. Luth. Ch. v. Los Angeles Cty.,

supra, 482 U.S. at 320, 107 S.Ct. at 2388, 96 L.Ed.2d at 267.

14

Accord, Agins v. Tiburon, 447 U.S. 255, 263 note 9, 100

S.Ct. 2138, 2143 note 9, 65 L.Ed.2d 106, 113 note 9 (1984).

Finally, petitioners’ argument that the lower court

erred by not considering this Court’s decision in the First

English Evangelical case as to the occurrence of a “taking”

is totally untenable. That case is readily distinguishable.

There, the issue was whether a temporary deprival of all

use of property constituted a “taking” in the same way as

a permanent deprival would. 482 U.S. at 318, 107 S.Ct. at

2388, 96 L.Ed.2d at 266. This Court stated, “We merely

hold that where the government's activities have already

worked a taking of all use of property, no subsequent action

by the government can relieve it of the duty to provide

compensation for the period during which the taking was

effective.” 482 U.S. at 321, 107 S.Ct. at 2389, 96 L.Ed.2d at

268. (Emphasis added).

In this case, even assuming the truth of all of peti-

tioners’ factual allegations, clearly no “taking” has

occurred. The prchibition on development present in the

First English Evangelical case is not found in this case, and

respondents’ activities to date are only those of prelimi-

nary governmental decision-making. Petitioners cannot,

therefore, fit this case into the “temporary takings” ruling

of the First English Evangelical case. Their argument that

the lower court erred by failing to consider that case is

meritless.

aa

15

| CONCLUSION

! It is respectfully submitted that for the foregoing

reasons the petition for a writ of certiorari should be

denied.

Respectfully submitted,

Peter N. Perret, JR.

ATTORNEY GENERAL OF

New Jersey

Attorney for Respondents

Richard J. Hughes Justice

Complex

CN 112

Trenton, New Jersey 08625

(609) 292-1509

By: Mary C. JAcoBson

Deputy Attorney General

Counsel of Record

JoHn A. Covino

Deputy Attorney General

On the Brief

DATED: October 3, 1989

ce

.

la

APPENDIX - COVER TO DRAFT SITE EVALUATION

REPORT TO NEW JERSEY HAZARD-

OUS WASTE FACILITIES SITING COM-

MISSION CONCERNING GAF

PROPOSED INCINERATOR, LINDEN,

NEW JERSEY.

New Jersey Hazarpous WaAsTE

Faciuities SITING COMMISSION

DrRarrT

Sire EvALUATION REPORT

GAF Proposep INCENERATOR

LINDEN, N.]J.

Marcu 1989

TAMS Consu rants, INc.