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

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PUPFEME VOUIL, Vive

FILED

1 188

No. 89-826 DEC @

ecpH F. SPANIOL, JR.

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ERK

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IN THE —

Supreme Court of the United States

OCTOBER TERM, 1989

FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF

GLENDALE, A CALIFORNIA CORPORATION,

Petitioner.

County OF Los ANGELES, CALIFORNIA,

Respondent.

On Petition for Writ of Certiorari to the

California Court of Appeal

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

KENNETH B. BLEyY*

Cox, CASTLE & NICHOLSON

2049 Century Park East

28th Floor

Los Angeles, CA 90067

(213) 284-2231

*Counsel of Record

WILLIAM H. ETHIER

National Housing Center

15th & M Streets, N.W.

Washington, D.C. 20005

(202) 822-0359

December 22, 1989

—————

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. .............cccccccccccsccscceccecees il

INTEREST OF THE AMICUS CURIAE. ..........0s00000+ 1

SUMMARY OF THE ARGUMENT ...............::eceeeeeees 3

RIE Uigiesantsinisnasencedinensanacdivaenneenenncsnerewesesnneess 3

I id china hidden aabinblieiariansinhannhainauanannannnnninnns 8

TABLE OF AUTHORITIES

CASES: Page

Agins v. City of Tiburon, 24 Cal.3d 266, 157

Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd on other

grounds, 447 U.S. 255 (1980) .......cccceceeeesseenes 5,6

Ayres v. City Council, 34 Cal.2d 31, 207 P.2d 1

(1949) ...cccrcrccccacrecccrsccsstsncsenesssnsasensesseneeeeenSBOSSEe 4

Briggs v. State of California ex rel Department of

Parks and Recreation, 98 Cal.8d 190, 159

Cal.Rptr. 390 (1975), app. dismissed and cert.

denied, 447 U.S. 917 (1980) ............cccscecessseeees 5

California Coastal Commission v. Superior Court,

210 Cal.App.3d 1488, 258 Cal.Rptr. 567

(19GB) ....ccccccccccccccecsencssssssensessncsesesnstausssesecsenseues 6

Cooper v. Aaron, 358 U.S. 1 (1958) «0... cceeeeeeneees 8

First English Evangelical Lutheran Church of Glen-

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

(1.007). .....v-cnscosecssvassnnssnssbensaieeliie nina nannInI 3

Lake Lucerne Civic Association, Inc. v. Dolphin

Stadium Corp., 878 F.2d 1360 (11th Cir.

LOBD) .ccrsccocsceresesesseesnensncsnnsesannsseresenensasinensunennene 6

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340, reh’g denied, 478 U.S. 1035

(19GB) ...cccccccerssrrsesecssrenseetscnssensessnnbeetenseeenSROGiens 5

Nash v. City of Santa Monica, 37 Cal.3d 97, 207

Cal.Rptr. 285, 688 P.2d 894 (1984), app. dis-

missed, 470 U.S. 1046 (1985) ...........ccesseeeeeeeees 6,7

Nollan v. California Coastal Commission, 483 U.S.

BOE (1GBT) ..ccccccrrcecrsceesensnsossescnteensnssesenesenenambess 4,6

Rancho LaCosta v. County of San Diego, 111

eens ay 54, 168 Cal.Rptr. 491 (1980), cert.

denied, 451 U.S. 989 (1981) ......cceresreeeneeeeeees 5

Rossco Holdings, Inc. v. State of California, 212

Cal.App.3d 642, 262 Cal.Rptr. 736 (1989) ...... 6

iii

Table of Authorities Continued

Russ Building Partnership v. City and County of

San Francisco, 199 Cal.App.3d 1496, 246

a a

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

TITIES ‘stsninssscenccesensengncsonsccetasncnee

San Telmo Associates v. City of Seattle, 108 Wash.2d

it EE SEED EIINUD ‘cncccccconcsssccncesccsesecssscecs

Seawall Associates v. City of New York, 74 N.Y.2d

92, 544 N.Y.S.2d 542, 542 N.E.2d 1059 (1989),

cert. denied, __._ U.S. ___ (Nov. 27, 1989).......

Terminal Plaza Corp. v. City and County of San

Francisco, 177 Cal.App.3d 892, 223 Cal.Rptr.

SITE elec abeanetannennsegbseteatennctaatnnannennescnses

Trent Meridith, Inc. v. City of Oxnard, 114

Cal.App.3d 317, 170 Cal.Rptr. 685 (1981) ......

Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th

Cir. 1981), cert. denied, 456 U.S. 973 (1982) .

Wheeler v. City of Pleasant Grove, 746 F.2d 1437

ici aeeihiiccenatnennnaenneranencense

Wheeler v. City of Pleasant Grove, 883 F.2d 267

(11th Cir. 1987), reh’g denied, 844 F.2d 794

I isa ccs cenennecnnennannnnoncneiceincane

MISCELLANEOUS:

1 Williams, American Land Planning Law, section

6.03 at 184-185 (1988 Rev.) .........cccccccccccceen

Interagency Task Force on Floodplain Management,

A Status Report on the Nation’s Floodplain

me) Og Activity (An Interim Re-

TT acne cncenncnccenanncsanenacensennces

Page

~~)

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-826

First ENGLISH EVANGELICAL LUTHERAN CHURCH OF

GLENDALE, a California corporation,

Petitioner,

CounTY OF Los ANGELES, CALIFORNIA,

Respondent.

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

The National Association of Home Builders has re-

ceived the parties’ written consent to file this brief as

amicus curiae in support of the petitioner and has filed

the letters of consent with the Clerk of this Court.

INTEREST OF THE AMICUS CURIAE

National Association of Home Builders represents

160,000 builder and associate members organized

tions in all fifty states, the District of Columbia, and

of .

those members are in Cal-

builders, as well as land developers and remodelors. It

is the voice of the American shelter industry.

Together, the industry the National Association of

Home Builders represents has built over 1,400,000 hous-

ing units in 1989, over 245,000 of which were built in

California. In fact, California leads all other states by

far in the number of units built, having produced over

17% of the housing units in the entire country.

The Just Compensation Clause and its implementation

as a shield against oppressive governmental land use

regulation is of paramount importance to the National

Association of Home Builders. The actual availability of

compensation for the occasional ordinance that results

in a taking is critical to the livelihood of private land-

owners who have lost the beneficial use of their property

solely in order to serve local governmental interests,

such as in the present case by effectively converting

private property into a public flood control channel.’

The courts of California, unlike those of virtually every

other state and federal jurisdiction that has considered

the question, have held, either directly or through pro-

cedural mechanisms, that private landowners are not

entitled to the just compensation required by the Fifth

Amendment (and made applicable to the states by the

Fourteenth Amendment) where a local governmental

body adopts a land use regulation that takes the land-

owners’ property by depriving it of all, or substantially

' Depending on how the calculation is made, there are some-

where between 162 million and 195 million acres of flood land

throughout the United States, approximately 7 million acres of

which are located in California. See A Status Report on the

Nation's Floodplain Management Activity (An Interim Report),

prepared by the Interagency Task Force on Floodplain Man-

agement (April, 1989).

all, use. The California courts have taken this position

notwithstanding this Court’s holding to the contrary in

its previous decision in this case, First English Evan-

gelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304 (1987).

The National Association of Home Builders was be-

fore this Court as an amicus curiae on behalf of the

petitioner when this case was first brought before this

Court. We submit this brief to this Court to resolve the

question of whether a court may do indirectly what it

may not do directly; that is, whether it may deny a

landowner the payment of just compensation by denying

the landowner the opportunity to prove that its property

has been taken.

SUMMARY OF THE ARGUMENT

The courts of California have a long history, both

before and after this Court’s initial decision in this case,

of limiting the rights of property ownership, requiring

landowners to pay more than their fair share of the

burdens imposed on all citizens, and denying them just

compensation in those situations where a taking has

occurred. The latest method of doing this—the one pres-

ently before this Court—is to use the stratagem of de-

ciding questions of fact as though they were questions

of law and granting judgment in favor of the govern-

ment without providing the landowner with a trial on

the merits.

ARGUMENT

It has long been the position of the courts of Cali-

fornia that landowners can be required to provide their

property to the public as a quid pro quo for the right

to obtain governmental permits which would allow de-

velopment of that property. Ayres v. City Council, 34

Cal.2d 31, 207 P.2d 1 (1949) (dedication of land to widen

a major thoroughfare adjoining the property to be de-

veloped). The underlying philosophy was best stated in

Trent Meredith, Inc. v. City of Oxnard, 114 Cal.App.3d

317, 328, 170 Cal.Rptr. 685, 691 (1981), which upheld

the requirement that fees be paid for interim school

facilities:

“The dedication of land or the payment of

fees as a condition precedent is voluntary in

nature. Even though the developer cannot le-

gally develop without satisfying the condition

precedent, he voluntarily decides whether to

develop or not to develop. Development is a

privilege not a right.”

Trent Meredith does not stand alone; similar expressions

are common in reported decision. See, eg., Russ Building

Partnership v. City and County of San Francisco, 199

Cal.App.3d 1496, 1506, 246 Cal.Rptr. 21, 25 (1987):

“Developers have been required to pay for

streets, sewers, parks and lights as a condition

for the privilege of developing a particular par-

cel.”

This view—that development is a privilege—is directly

contrary to this Court’s holding that development is a

right and not a privilege.

“{Tyhe right to build on one’s own property—

even though its exercise can be subjected to

legitimate permitting requirements—cannot re-

motely be described as a ‘governmental bene-

fit." Nollan v. California Coastal Commission,

483 U.S. 825, 833 n.2 (1987).

The philosophy stated by the foregoing California

opinions was accompanied by a determination by the

California Supreme Court that just compensation could

never be required as a result of a regulatory taking.

Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr.

372, 589 P.2d 25 (1979), aff'd on other grounds, 447

U.S. 255 (1980). Before Agins was decided by the Cal-

ifornia Supreme Court, the California Courts of Appeal

routinely reversed trial court judgments awarding just

compensation for inverse condemnation. See, e.g., Briggs

v. State of California ex rel Department of Parks and

Recreation, 98 Cal.3d 190, 159 Cal.Rptr. 390 (1975),

app. dismissed and cert. denied, 447 U.S. 917 (1980);

Rancho LaCosta v. County of San Diego, 111 Cal.App.3d

54, 168 Cal.Rptr. 491 (1980), cert. denied, 451 U.S. 989

(1981); and San Diego Gas & Electric Co. v. City of

San Diego, 450 U.S. 621 (1981).

Agins, at least in theory, held out the hope that some

remedy—even if only invalidation—of a regulation which

went too far was available. As a practical matter, no

such remedy existed. The remedy was often precluded

by procedural decisions. In fact, three of the four Cal-

ifornia taking cases which came before this Court in

the 1980's arose in the context of a demurrer or motion

to strike; that is, without any trial on the merits. Agins

v. City of Tiburon, supra; MacDonald, Sommer & F rates

v. Yolo County, 477 U.S. 340, reh’g denied, 478 U.S.

1035 (1986); and the original opinion in the case at bar.*

* The dissent in Agins in the California Supreme Court took

the majority to task for ruling as it did on a demurrer where

sufficient facts had been pleaded to state a cause of action.

“... unless, of course, the majority deemed that they

are not bound by the honored rule of law which pre-

The attitude of the courts of California is also dem-

onstrated by their refusal to honor this Couit’s holding

in Nollan, supra, which prohibited the “extortion’’® of

easements by the California Coastal Commission. They

did this, not by defiantly saying that such easements

could be required, but rather by making it impossible

for landowners who had been forced to make illegal

dedications to recover what they had lost.

Thus, in California Coastal Commission v. Superior

Court, 210 Cal.App.3d 1488, 258 Cal.Rptr. 567 (1989),

and Rossco Holdings, Inc. v. State of California, 212

Cal.App.3d 642, 262 Cal.Rptr. 736 (1989), the Courts

of Appeal held that a failure to seek administrative

review of a permit containing a condition requiring the

dedication of an easement barred the landowner from

recovering just compensation for the property taken.

Compare these mean spirited procedural determinations

with that made by the Supreme Court of Florida which

has separated litigation involving the judicial review of

improper administrative land use decisions from that

involving the issue of a taking. See the discussion in

Lake Lucerne Civic Association, Inc. v. Dolphin Stadium

Corp., 878 F.2d 1360, 1870-1371 (11th Cir. 1989), which

sets forth the Fiorida courts’ procedures for first testing

the validity of an administrative land use decision and

then allowing a second lawsuit for a taking if necessary.

Finally, compare the positions taken by the courts of

California in Nash v. City of Santa Monica, 37 Cal.3d

vents the court on a demurrer from finding factual

issues contrary to matters well pleaded in the com-

plaint.” Agins, supra, 24 Cal.3d 266, 280, 117

Cal.Rptr. 372, 380, 598 P.2d 25, 33 [footnote omitted].

’ Nollan, supra, 483 U.S. at 837.

97, 207 Cal.Rptr. 285, 688 P.2d 894 (1984), app. dis-

missed, 470 U.S. 1046 (1985), and Terminal Plaza Corp.

v. City and County of San Francisco, 177 Cal.App.3d

892, 223 Cal.Rptr. 379 (1986), which held that the

owner of residential property had no right to go out

of the residential rental business (Nash) unless the land-

owner was willing to provide replacement housing or

pay an in lieu fee, with Seawall Associates v. City of

New York, 74 N.Y.2d 92, 544 N.Y.S.2d 542, 542 N.E.2d

1059 (1989), cert. denied, __ U.S. __, 110 S.Ct. __

(Nov. 27, 1989), and San Telmo Associates v. City of

Seattle, 108 Wash.2d 20, 735 P.2d 673 (1987), both of

which held precisely to the contrary.

“The striking feature of California zoning

law is that the courts in that state have quite

consistently been far rougher on the property

rights of developers than those in any other

state. In a fairly long series of cases, the

California court has upheld restrictions on

property rights which would not be upheld

in many other states, and (in some instances)

probably not in any other. Moreover, this

group of decisions is not an isolated phenom-

enon, out of line with the rest; the same

spirit pervades the body of California zoning

law generally ... [T]he general rule [is] that

practically anything goes...’ 1 Williams,

American Land Planning Law, section 6.03

at 184-185 (1988 Rev.) [footnote citing six

California Supreme Court cases omitted].

This Court’s help is needed if landowners in Cali-

fornia are to enjoy the Constitutional protection iden-

tified by this Court and routinely provided by the

federal courts and the courts of the other states.

CONCLUSION

Unfortunately, it is sometimes necessary for su-

perior courts to reinstruct the lower courts that they

are required to follow the clear mandate of the Con-

stitution. ‘‘Judicial officers,” like other state officers,

are required to follow this Court’s interpretation of

the Constitution; it is, after all, the supreme law of

the land. Cooper v. Aaron, 358 U.S. 1, 18-19 (1958).

See also, Wheeler v. City of Pleasant Grove, 664 F.2d

99 (5th Cir. 1981), cert. denied, 456 U.S. 973 (1982);

746 F.2d 1437 (11th Cir. 1984); and 883 F.2d 267

(11th Cir. 1987), reh’g. denied, 844 F.2d 794 (11th

Cir. 1988), where the Court of Appeals was required,

three times, to reverse a trial court’s determination

that unreasonable land use regulation was not to be

adequately compensated in damages.

In the case at bar, the only way that the courts

of California can be brought into line with this Court’s

clear statement that the Just Compensation Clause

requires the payment of just compensation when the

facts warrant them is to grant the petition for

certiorari and review the limits which a court may

place on a landowner’s attempt to recover just com-

pensation when a taking has been alleged.

Respectfully submitted,

KENNETH B. BLEY*