# Amicus Curiae Brief — First English Evangelical Lutheran Church v. County of Los Angeles > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0653%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1056 ## Text PUPFEME VOUIL, Vive FILED 1 188 No. 89-826 DEC @ ecpH F. SPANIOL, JR. na — ee ERK =" — —~ vs IN THE — 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. 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 i ii 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, v. 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 . rE 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* 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 Dated: December 22, 1989 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0653%3A5. Public record. Not legal advice.