# Opposition Brief — Littman v. Gimello

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 934

## Text

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

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= In The OCT 3 1985
Supreme Court of the United Statesers F. seanion y

_ October Term, 1989 CLERK

_— =.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0158%3A3. Public record. Not legal advice.