Amicus Curiae Brief — First English Evangelical Lutheran Church v. County of Los Angeles

i

ia Supreme Court, US,

3) FILED

No. 89-826 EC 21 18S

. JOSEPH F. SPANIOL, JR.

In The ern

Supreme Court of the United States

October Term, 1989

-*

_

FIRST ENGLISH EVANGELICAL

LUTHERAN CHURCH OF GLENDALE,

a California corporation,

Petitioner,

V.

COUNTY OF LOS ANGELES, CALIFORNIA,

Respondent

a

—

On Petition for Writ of Certiorari

to the California Court of Appeal,

Second Appellate District, Division Seven

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a

BRIEF OF AMICUS CURIAE, PACIFI¢

LEGAL FOUNDATION, IN SUPPORT O!

THE PETITION FOR CERTIORARI

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vr

RONALD A. ZumikioN

Epwarp J. CONNok, fx

*Timotity A. Birr:

*Counsel of Record

Pacipic Lecat. Founpation.

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95s

Telephone: (916) 641-5458

Attorneys for Amicus Curtae

Pacific Legal Foundation

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED..... Py ee ii

ee ee ee, cans cans seventies sends l

THIS CASE PRESENTS IMPORTANT QUESTIONS

Ns te ae a koe ene ane 2

SUMMARY OF ARGUMENT....................... 4

ee ee US cd oicas seen be eet es 4

I. TAKING CLAIMS CANNOT BE DECIDED

WITHOUT A FACTUAL RECORD .......... 4

II. A COMPLETE DENIAL OF ALL USE

REQUIRES JUST COMPENSATION ......... &

III. TEMPORARY TAKINGS ARE COMPENS-

eee Pe ee eee ie tents aw aah 12

ii

TABLE OF AUTHORITIES CITED

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980)..... 10, 11

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304

tt rarer re passim

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

(OPE 6 05 sk ¥eanneen OTE eT irre eee 5, 6

_Hodel v. Virginia Surface Mining and Reclamation

Association, Inc., 452 U.S. 264 (1981)............ 5, 11

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ..... 5

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ................. 11

Kirby Forest Industries, Inc. v. United States,

467 US. 0 GGRR)D .n5. 5 svceeacevanes eee 11

Loretto v. Teleprompter Manhattan CATV Corp.,

4560 U.S. 439 (RRS nck cn ese eee 9

Mugler v. Kansas, 123 U.S. 623 (1887)............... 10

Nollan v. California Coastal Commission,

403 U.S. GES (UD xc ceccnnseentecene, schaeeueen 11

Penn Central Transportation Co. v. City of New

York, 438 U.S. BOO CIPD) oi okies ss evecdcapeeen me 5, 6

Pennell v. City of San Jose, 485 U.S. __, 99 L. Ed.

A 1 CIGGRD..... 5505 oven vin enone wee eeeenes eae 5

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(RGED) « ... sinus a des sna 0 oe 6 0 eee ele 10

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ..... 5

Williamson County Regional Planning Commis-

sion v. Hamilton Bank of Johnson City,

473 US. 172 (1968) . . «ss 9 0ne se eee 11

a 3 ey

iii

TABLE OF AUTHORITIES —- Continued

Supreme Court Rule 36

—_— _— I ——- oo AD ii a a oR a ees ae

ee, ae

No. 89-826

,

~

In The

Supreme Court of the United States

October Term, 1989

a

—_

FIRST ENGLISH EVANGELICAL

LUTHERAN CHURCH OF GLENDALE,

a California corporation,

Petitioner,

V.

COUNTY OF LOS ANGELES, CALIFORNIA,

Respondent.

»

»

On Petition for Writ of Certiorari

to the California Court of Appeal,

Second Appellate District, Division Seven

,™

_

BRIEF OF AMICUS CURIAE, PACIFIC

LEGAL FOUNDATION, IN SUPPORT OF

THE PETITION FOR CERTIORARI

a

—

INTEREST OF AMICUS

Pursuant to Supreme Court Rule 36, Pacific Legal

Foundation submits this amicus curiae brief in support of

petitioner’s petition for writ of certiorari. Consent to the

filing of this brief has been granted by counsel for all

parties. Copies of the letters of consent have been lodged

with the Clerk of this Court.

Pacific Legal Foundation (PLF) is a nonprofit founda-

tion, incorporated under the laws of California for the

purpose of participating in litigation that affects the pub-

lic interest. An independent Board of Trustees composed

of concerned citizens, a majority of whom are attorneys,

authorizes participation in a case only when it concludes

that PLF’s position has broad public support. The Board

of Trustees has authorized PLF’s involvement in this case.

a

. 4

THIS CASE PRESENTS

IMPORTANT QUESTIONS OF LAW

In its 1987 decision, this Court ruled that monetary

compensation is mandated by the Constitution when reg-

ulation takes private property, even if the taking is only

temporary. First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 318 (1987).

Due to the absence of a factual record (the case

having come up on a dismissal of pleadings) the Court

left undecided the question of whether First English

Church's property was in fact taken by the Los Angeles

County flood control ordinance. For the same reason the

Court noted it had no occasion to decide whether the

county might avoid a taking conclusion by establishing

that a denial of all use is insulated under the Fifth

Amendment as a part of the state’s authority to enact

safety regulations. First English, 482 U.S. at 313.

The latter question involves not only issues of fact,

but also an extremely important question of law, namely:

Can government deny all use of an owner's property, if

done to protect public safety, without compensating the

owner? Because a factual record has not yet been devel-

oped in the case, this Court properly refrained from

offering an advisory opinion on the issue. The California

Court of Appeal on remand, however, did not feel so

restrained and, despite the same lack of a factual record,

took it upon itself to answer this weighty question. The

Court of Appeal has announced that government can

indeed, consistent with the Fifth Amendment, deprive an

owner of all use of his property to promote public safety,

and the owner must bear that loss uncompensated.

As an “independent” ground for its decision, the

Court of Appeal also ruled that the temporary denial of

use imposed by the county was lawful because it was not

unreasonably long, “even were we to assume its restric-

tions were too broad if permanently imposed.” First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 210 Cal. App. 3d 1353, 1372 (1989) (emphasis in

original). In so ruling, the Court of Appeal adopts the

view of the dissent in this Court’s 1987 decision.

The First English case is one of high visibility, and the

Court of Appeal’s opinion will be widely read by govern-

ment officials and attorneys who must advise clients in

this area of the law. In regulation-happy California, the

uncertainty brought about by this decision can lead to

further eroding of constitutionally protected property

rights and to protracted litigation and legal costs associ-

ated therewith. The issues are too important to be

decided without the guidance of this Court, and this

Court is therefore respectfully urged to grant the petition.

SUMMARY OF ARGUMENT

1. The California Court of Appeal erred by ruling

that no taking had occurred when it had no evidentiary

record upon which to conduct the constitutionally man-

dated “ad hoc, factual inquiry” courts must undertake in

takings cases.

2. The Court of Appeal in deciding the major issue

of whether a denial of all use, done to promote public

health and safety, nonetheless requires compensation—an

issue this Court left for another day—decided the issue in

conflict with this Court’s precedents.

3. The Court of Appeal rejected this Court’s ruling

that a denial of use, which would constitute a taking were

it permanent, is no less a taking just because it is

temporary.

7.

vr

ARGUMENT

I

TAKING CLAIMS CANNOT BE DECIDED

WITHOUT A FACTUAL RECORD

The Court of Appeal took it upon itself to determine

whether First English Church had suffered a taking without

ever giving the church an opportunity to conduct discovery

or put on evidence. That was a significant legal error. This

Court has consistently described the review which courts

must undertake in takings cases as an “ad hoc, factual

inquiry.” See, e.g., Pennell v. City of San Jose, 485 U.S. __,

99 L. Ed. 2d 1, 13 (1988); Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1005 (1984); Hodel v. Virginia Surface Mining

and Reclamation Association, Inc., 452 U.S. 264, 294-95

(1981); Kaiser Aetna v. United States, 444 U.S. 164, 175

(1979); Penn Central Transportation Co. v. City of New York,

438 U.S. 104, 124 (1978).

It is of course stating the obvious to say that a factuai

record is not developed in the Court of Appeal. It is

developed in the trial court, where there is an oppor-

tunity to conduct discovery, subpoena records, examine

witnesses, introduce evidence, object to evidence, put on

experts—-in short, a chance for each side to prove its case.

The importance of a thorough factual record was

discussed by this Court in Goldblatt v. Town of Hempstead,

369 U.S. 590 (1962). In Goldblatt, this Court upheld the

New York ordinance at issue, but only after the property

owner had been given opportunity to and failed to

develcp an evidentiary record showing that the ordi-

nance was not reasonably necessary for public safety. The

Court said:

“*To justify the State in... interposing its

authority in behalf of the public, it must appear,

first, that the interests of the public . . . require

such interference; and, second, that the means

are reasonably necessary for the accomplish-

ment of the purpose, and not unduly oppressive

upon individuals.’

“The ordinance in question was passed as a

safety measure, and the town is attempting to

uphold it on that basis. To evaluate its rea-

sonableness we therefore need to know such

things as the nature of the menace against which

it will protect; the availability and effectiveness

of other less drastic protective steps, and the

loss which appellants will suffer from the impo-

sition of the ordinance.” Goldblatt, 369 U.S.

at 594-95.

The quoted language obviously demonstrates that, had

there been facts in the trial court record to show that no

viable use remained for the property, or that the ordi-

nance was overbroad, or that less restrictive alternatives

were available, the Court might well have reached a

different result. As stated in Penn Central Transportation

Co. v. City of New York, 438 U.S. at 127:

“It is, of course, implicit in Goldblatt that a use

restriction on real property may constitute a

‘taking’ if not reasonably necessary to the effec-

tuation of a substantial public purpose . . . or >

perhaps if it has an unduly harsh impact upon

the owner’s use of the property.”

Issues of reasonableness and impact on use are issues of

fact. The lack of an evidentiary record at the present

pleading stage of this case caused this Court to conclude

that it could not determine whether a taking had in fact

occurred. First English, 482 U.S. at 313. The California

Court of Appeal was no better equipped to make that

determination. As stated in Goldblatt, the court would

need to know such things asthe nature of the menace

against which the Los Angeles County ordinance was

supposed to protect, and the availability of other less

drastic protective steps. The court simply had no evi-

dence on matters such as the probability of another simi-

lar flood, whether the upstream watershed could be

revegetated, whether perhaps it had already become

revegetated, whether the church’s full 21 acres were sub-

ject to flooding, whether the church’s land could be

graded so as to elevate some of the acreage above the

flood plain, and whether buildings could be designed to

withstand flooding.

The Court of Appeal also had no evidence to explain

why, if the county was concerned about loss of life on the

church’s property, it prohibited buildings, but not people.

In the Court of Appeal’s own words, the ordinance “does

not even prevent occupancy and use of any structures

which may have survived the flood. It only prohibits the

reconstruction of structures which were demolished

. and the construction of new structures... . [MJany

camping activities could continue on this property. Meals

could be cooked, games played, lessons given, tents

pitched.” First English, 210 Cal. App. 3d at 1367.

In addition, the Court of Appeal had no evidence to

explain why, if the county was concerned about debris

that could be carried away in a flood, it prohibited even

flood-engineered buildings, but would permit a parking

lot full of unanchored cars on the flood plain. See First

English, 210 Cal. App. 3d at 1370.

If given the chance, First English Church might be

able to show that the county had simply seized upon the

flood as a chance to further its growth control and envi-

ronmental preservation goals for the Santa Monica

Mountains.

In the absence of any evidence against which to

weigh the reasonableness of the county’s ordinance, this

Court properly refrained from venturing an opinion

about whether the church’s property had been taken. This

Court returned the case to the state courts so that the

church could have its day in court. The Court of Appeal

should have sent the case on to the trial court. Unfor-

tunately, when the spotlight of public attention was

turned on the Court of Appeal, that court could not resist

the temptation to make legal history by deciding those

questions which this Court found itself unable yet to

answer. The result of the Court of Appeal’s action was to

again deprive First English Church of its day in court.

More importantly, in the absence of a factual record, the

Court of Appeal erred in deciding the ultimate legal

issue, that is, whether a denial of all use is lawful without

compensation if done in the name of public health and

safety.

II

A COMPLETE DENIAL OF ALL USE

REQUIRES JUST COMPENSATION

The Court of Appeal seriously mischaracterized prior

pronouncements of this Court when it concluded that

“where health and safety are at stake,” all use of private

property can be denied without compensation. First

English, 210 Cal. App. 3d at 1366. Although the court

purports to rest its conclusions on Supreme Court prece-

dents, including the majority opinion in First English, this

Court has never so held and the precedents relied upon

do not support this view.

The Court of Appeal completely misread this Court’s

First English opinion. The Court of Appeal asserts: “{T]he

Supreme Court majority clearly stated the land use regu-

lation involved in this case . . . would not constitute a

compensable ‘taking’ .. . even assuming it prohibited ‘all

uses’ of that property if the deprivation . . . promoted

public safety.” 210 Cal. App. 3d at 1366 (emphasis in

original). Far from “clearly stat[ing]” this view, the

Supreme Court majority actually said it had “no occasion

to decide” the issue. First English, 482 U.S. at 313.

This Court’s opinion reflects that the county was

proposing this view. However, the Court clearly indicated

that consideration of the county’s argument would not be

appropriate in the absence of a factual setting making it

necessary to do so. To quote the Court, “[w]e accordingly

have no occasion to decide... whether the county might

avoid the conclusion that a compensable taking had

occurred by establishing that the denial of all use was

insulated as a part of the State’s authority to enact safety

regulations.” 482 U.S. at 313 (emphasis added).

Amicus is not aware of any decision of this Court

holding that all use can be denied in the name of public

health and safety without running afoul of the guaranty

of compensation. To say that a regulation promotes health

or safety is merely to say that the regulation advances a

legitimate state interest. This Court has always held,

however, that finding a legitimate state interest does not

end the taking inquiry. “It is a separate question

. . whether an otherwise valid regulation so frustrates

property rights that compensation must be paid.”

Loretto v. Teleprompter Manhattan CATV Corp., 458 US. 419,

425 (1982).

10

Besides First English, the only other case the Court of

Appeal looks to as support for its theory is Mugler v.

Kansas, 123 U.S. 623 (1887). Mugler, a nuisance case, like

all this Court’s nuisance cases, does not involve facts

where all use of private property was denied. The defen-

dant, Mugler, while prevented from using his property as

a brewery, was free to put it to any of a host of other

lawful uses. Moreover, Mugler was the first of a long line

of cases to hold that a compensable taking occurs when

either the government’s action does not substantially

advance a legitimate purpose or the owner is denied all

reasonable use of his property:

“It does not at all follow that every statute

enacted ostensibly for the promotion of [public

health and safety] ends is to be accepted as a

legitimate exertion of the police powers of the

State. There are, of necessity, limits beyond

which legislation cannot rightfully go. . . . If,

therefore, a statute purporting to have been

enacted to protect the public health, the public

morals, or the public safety, has no real or sub-

stantial relation to those objects, or is a palpable

invasion of rights secured by the fundamental

law, it is the duty of the courts to so adjudge,

and thereby give effect to the Constitution.”

Mugler, 123 U.S. at 661 (emphasis added).

This rule has been oft repeated. In Pennsylvania Coal Co. v.

Mahon, the Court indicated that a denial of all reasonable

use, by itself, would constitute a taking when it wrote:

“(W]hile property may be regulated to a certain extent, if

regulation goes too far it will be recognized as a taking.”

260 U.S. 393, 415 (1922). In Agins v. City of Tiburon, the

Court stated that a taking occurs “if the ordinance does

not substantially advance legitimate state interests . . . or

11

denies an owner economically viable use of his land.”

447 U.S. 255, 260 (1980) (emphasis added). In Hodel v.

Virginia Surface Mining and Reclamation Association, Inc.,

the Court wrote: “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.’” 452 U.S. at 295-96.

In Kirby Forest Industries, Inc. v. United States, the same

language is used again: “Thus, we have acknowledged

that a taking would be effected by a zoning ordinance

that deprived ‘an owner [of] economically viable use of

his land.’” Kirby refers to this rule as one this Court has

“frequently recognized.” 467 U.S. 1, 14 (1984). In Wil-

liamson County Regional Planning Commission v. Hamilton

Bank of Johnson City, the Court assumes that compensa-

tion would be owing if, after a final decision by the

municipality, “the jury would have found that the respon-

dent had been denied all reasonable beneficial use of the

property.” 473 U.S. 172, 191 (1985). Recently, in Nollan v.

California Coastal Commission, this Court affirmed the rule

with these words: “We have long recognized that land-

use regulation does not effect a taking if it ‘substantially

advance[s] legitimate state interests’ and does not ‘denly]

an Owner economically viable use of his land.’”

483 U.S. 825, 834 (1987) (emphasis added). Perhaps most

significant for purposes of the present case is the use of

this “either/or” analysis by the Court in Keystone Bit-

uminous Coal Association v. DeBenedictis, 480 U.S. 470

(1987). There the Court found that the Pennsylvania sub-

sidence statute substantially advanced the same state

interest at stake in First English, namely the preservation

of human life. Nonetheless, it went on to consider

whether the statute deprived the coal companies of the

eee

12

economically viable use of their land. Keystone, 480 U.S.

at 493.

It is readily seen from the above list that this Court

has repeatedly held, contrary to the announcement of the

California Court of Appeal, that even when regulation is

justified by concerns for public health and safety, the

owner musi ether be left with some economically viable

use, or be paid compensation. Astonishingly, the Court of

Appeal refers to this rule as just the opinion of “[o]ne

pair of commentators.” First English, 210 Cal. App. 3d

at 1365.

The Court of Appeal misinterpreted a full century of

this Court’s jurisprudence when it ruled that all use can

be denied for public health or safety reasons without

compensation. The court did not stop there, however. As

an alternative ground for its decision, it went on to reject

this Court’s holding, in this very case, that a temporary

taking is no less compensable than a permanent one.

III

TEMPORARY TAKINGS ARE COMPENSABLE

In its 1987 decision this Court held that temporary

deprivations of use “are not different in kind from per-

manent takings, for which the Constitution clearly

requires compensation.” First English, 482 U.S. at 318. The

Court of Appeal, however, holds that “the interim ordi- ]

nance did not constitute a ‘temporary unconstitutional

taking’ even were we to assume its restrictions were too

broad if permanently imposed.” First English, 210 Cal. App. |

3d at 1372 (emphasis in original).

13

This Court held that temporary delays on the ability

to use property are excusable if “normal,” and cited as

examples the time needed to process requests by the

owner such as building permit applications and zoning

change requests. First English, 482 U.S. at 321. The Court

of Appeal, however, excuses delays that are years long,

and—far from accommodating some request by the own-

er—are intended to tie the owner’s hands while the gov-

ernment ponders how much it will pare his property

rights back, so long as these delays do not strike the court

as “unreasonable.”

This Court’s contrast of the denial of use suffered by

First English Church on the one hand, and normal delays

to process land use applications on the other hand,

reveals this Court's thinking that the purpose for a delay,

not just its length, determines whether it constitutes a

taking. If a denial of use is for a confiscatory purpose,

then it is a taking without regard to its length.' Thus the

court must look at the governmental purpose involved.

An ordinance passed to prohibit all use is different from

the delay of a particular proposed use. If the public

objective is to keep the land unused, rather than to regu-

late its use, that is a confiscatory purpose and should be

regarded as a taking even if the length of time involved

might be regarded as normal or reasonable in another

context.

1 Even if the delay is for a nonconfiscatory purpose, it may

still cause a taking if left in effect an abnormally long time. But

one does not get to this step if the public purpose ts

confiscatory.

DO

14

The Court of Appeal rejected this idea and ruled that,

regardless of the confiscatory or nonconfiscatory nature

of the county’s ordinance, if it was passed for health and

safety reasons, and was not “unreasonably” long, it could

not be a taking. The Court of Appeal is mistaken, if not

defiant, and should be overruled. |

.

—_—

— meee

CONCLUSION

Since the California Court of Appeal has committed

major errors interpreting the rights guaranteed to the

petitioner by the federal Constitution, which will affect

property owners throughout the state if not reversed, this

Court is urged to grant the petition for certiorari.

DATED: December, 1989.

Respectfully submitted,

Ronatp A. ZUMBRUN

Epwarp J. Connor, Jr.

*Timotny A. BITtLe

*Counsel of Record

Paciric LEGAL FOUNDATION

2700 Gateway Oaks Drive

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation