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

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No. 89-826 — DEC a Bes

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JOSE

IN THE

‘ Ut

JR.

Supreme Court of the Hnited States

OcTOBER TERM. 1989

FIRST ENGLISH EVANGELICAL LUTHERAN

CHURCH OF GLENDALE,

a California corporation,

Petitioner,

VS.

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 OF THE

CALIFORNIA ASSOCIATION OF REALTORS®

IN SUPPORT OF PETITIONER

WILLIAM M. PFEIFFER,

Vice President and General Counsel*

JUDITH K. HERZBERG, Senior Counsel

CALIFORNIA ASSOCIATION OF REALTORS®

525 South Virgil Avenue

Los Angeles, California 90020

(213) 739-8200

Attorneys for Amicus Curiae

*Counsel of Record

Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510

rer’

No. 89-826

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

FIRST ENGLISH EVANGELICAL LUTHERAN

CHURCH OF GLENDALE,

a California corporation,

Petitioner,

vs.

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 OF THE

CALIFORNIA ASSOCIATION OF REALTORS®

IN SUPPORT OF PETITIONER

WILLIAM M. PFEIFFER,

Vice President and General Counsel*

JUDITH K. HERZBERG, Senior Counsel

CALIFORNIA ASSOCIATION OF REALTORS®

525 South Virgil Avenue

Los Angeles, California 90020

(213) 739-8200

Attorneys for Amicus Curiae

*Counsel of Record

TABLE OF CONTENTS

I. WHEN REGULATORY IMPOSITIONS HAVE

THE SAME EFFECT AS_ PHYSICAL

INVASIONS, COMPENSATION MUST BE

DUPER USER GSS 645000 secsecececs 3

Il. THE PUBLIC AT LARGE, RATHER THAN

THE INDIVIDUAL PROPERTY OWNER,

SHOULD BEAR THE COST OF PUBLIC

IMPROVEMENTS WHEN THE BURDEN ON

THE INDIVIDUAL IS MORE AND

DIFFERENT THAN THAT ON THE PUBLIC 10

Ill. THERE IS A NEED FOR THIS COURT TO

MORE ADEQUATELY DEFINE

"ECONOMICALLY VIABLE USE" WHICH

MUST INCLUDE REASONABLE

INVESTMENT-BACKED EXPECTATIONS . 14

ec ccc cece cccccs eel, 18

TABLE OF AUTHORITIES

Cases:

Agins v. City of Tiburon, 447 U.S. 255 (1980) ..... 5,

10, 11, 14, 15

Andrus v. Allard, 444 U.S. §1 (1979) ........... 14

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987) ....... 6

Hodel v. Irving, 481 U.S. 704 (1987) ............ 15

Kaiser Aetna ». United States, 444 U.S. 164 (1979) 5, 14

Keystone Brjamanous Coal Ass'n v. DeBenedicns,

480 US. 478 (9987 iii. aaa 5-9, 12, 14, 15

Loretto v. Teleprompter Manhattan CATV Coprp.,

3B US... GOD COED 6 kc ccc ccsuheceees 7, 9, 14, 15

Monogahela Navigation Co. v. United States,

BOB CRE. FE Glee obi nek hkk debe awe ceeds 12

Nollan v. California Coastal Comm'n,

438 US. GBS CRUE 2 wc cecccccs 5, 6, 10, 11, 14, 15

Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1978) .......... 5, 7, 8, 10, 14, 15, 18

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922)

eh a A ts

PruneYard Shopping Center v. Robins,

OF WN PEE wo cb eccccescesessn 5, 7, 10, 14

Reichert v. Felps, 73 U.S. (6 Wall.) 160 (1868) ..... 4

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) . 14

San Diego Gas & Elec. Co. v. San Diego,

oo eS eee 5, 10, 18

Williamson County Regional Planning Comm'n v. Hamilton

oo at.) Peer 8, 14

Constitutions:

United States Constitution,

I Pe ig a es 4 Sw wie oe a 3, 4, 6, 10, 12

Other Authorities:

Dept. of Finance, State of California, Population Estimates

of Califomia Cities and Counties January 1, 1988 to

January, 1, 1989 (May, 1989) .............0058. 13

Epstein, An Outline of Takings, 41 U. Miami L. Rev. 3

TT Ee Te CEE RR 16

Falik & Shimko, The Takings News: The Supreme Court

Forges a New Direction in Land Use Jurisprudence,

eS 8 eee 16

-iv-

Kmiec, The Original Understanding of the Taking Clause is

Neither Weak nor Obtuse, 88 Colum. L. Rev. 1630

t. BPPTTETELETTT TT re 16

Mandelker, /nvestment-Backed Expectations: Is There a

Taking?, 31 J. of Urb. and Contemp. L. 3 (1987) .. 16

Michelman, Takings, 1987, 88 Colum. L. Rev. 1600

( SP Perrrrrerrrrrrrr errs 16

Peterson, Land Use Regulatory “Takings” Revisited: The

New Supreme Court Approaches, 39 Hastings L.J. 335

(TEED ncccccdcccrctucsvseeseseepeeesess 6

Rose-Ackerman, Against Ad Hocery: A Commentary on

Michelman, 88 Colum. L. Rev. 1697 (1988) ... 12, 16

Salsich Jr., Keystone Bituminous Coal, First English and

Nollan: A Framework for Accommodation? 34 J. of Urb.

and Contemp. L. 173 (1988) . 2... 6... eee eee 6

Sussna, The Concept of Highest and Best Use Under

Takings Theory, 21 The Urban Lawyer 113 (1989) .. . 6

Symp., Land-Use, Zoning and Linkage Requirements

Affecting Pace of Urban Growth,

20 Urban Lawyer 413 2... ccc ccc cc cccncnccces 6

Symp., Utilitarian Balancing and Formalism in Takings, 88

Colum. L. Rev. 1581 (1988) ........00 0 eee eee 6

L. Tribe, American Constitutional Law (2nd Ed. 1988) 4

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

FIRST ENGLISH EVANGELICAL LUTHERAN

CHURCH OF GLENDALE, A CALIFORNIA

CORPORATION,

Petitioner,

VS.

COUNTY OF LOS ANGELES, CALIFORNIA,

Respondent.

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 36, the California

Association of REALTORS® respectfully submits this

brief amicus curiae in support of Petitioner, First English

Evangelical Lutheran Church of Glendale.

Amicus curiae California Association of REALTORS®

(C.A.R.) is a voluntary trade association whose members

consist of Boards of REALTORS® in California and those

persons licensed by the state of California as real estate

brokers and salespersons who are members of local

boards. C.A.R. is the largest state trade association in

the United States and has 180 affiliated Boards of

REALTORS® and over 135,000 members.

Me

The mission of C.A.R. is to serve in developing and

promoting programs and services that will enhance the

members’ freedom and ability to conduct their individual

businesses successfully with integrity and competency.

Moreover, C.A.R. serves to promote, through collective

action, the preservation of private property rights.

The California appellate courts need guidance from

this Court in determining when a regulatory taking so

undermines private property rights that compensation

under the U.S. Constitution is required. The California

rule, if this case is allowed to stand, will allow

municipalities to impose land use regulations that

effectively deprive a private property landowner of all

reasonable use of his property without any viable remedy.

With the extensive proliferation of land use regulatory

programs that greatly restrict the use to which private

property may be put, C.A.R., its members and all the

property owners they represent have a significant interest

in the outcome of this case and the law it establishes.

SUMMARY OF THE ARGUMENT

In 1986, when this case was briefed on the remedy

issue, we noted that this Court was not presented with

the broad question of establishing constitutional standards

for determining whether a land use regulation constitutes

a de facto taking of private property. With this second

phase of the case, it is.

The California appellate court, in applying the

guidelines set forth by this Court, has ruled that a

regulatory taking only occurs if all] reasonable use of

property is denied. Further, in its opinion is an analysis

/)

sf.

that would effectively result in no regulatory taking if

property is taken for public safety. This Court has

declared over the years that there is no set formula for

defining when a regulatory taking occurs. The California

appellate court’s decision in this case would make it

extremely difficult, if not impossible, to find a regulatory

taking and will result in a great injustice to property

owners specifically and society as a whole.

Counsel for C.A.R. are familiar with the questions

involved and the scope of their presentation and believe

that further argument on the issues discussed by this

amicus brief will be helptul to this Court.

ARGUMENT

Il. WHEN REGULATORY IMPOSITIONS HAVE

THE SAME EFFECT AS _ PHYSICAL

INVASIONS, COMPENSATION MUST BE

PAID.

In September, 1789, Congress adopted the Bill of

Rights, which was sent to the states for ratification. Of

the twelve amendments sent, ten were ratified including

what today is the Fifth Amendment. It is only fitting and

proper that as we begin our national celebration of the

two hundredth year of the Bill of Rights, this Court

continue in its well reasoned efforts to assist the citizens

of this country in determining what those rights are that

are so zealously guarded.

It is axiomatic that the Bill of Rights generally, and

the Just Compensation Clause of the Fifth Amendment

specifically, was adopted to protect individuals from

re

majoritarian oppression.'! As is always the case, it is this

Court’s duty to apply the principles encompassed in the

Constitution to facts as they exist today, two hundred

years later. In 1789, the framers did not conceive of the

highly sophisticated bureaucratic land use regulatory

system that exists today. In 1789, land was actually

"taken" for public use.2 Today, faced with ever

diminishing tax revenues, governmental entities find it

more economically "acceptable" to turn to land use

regulation than eminent domain to accomplish the same

goal. Why buy a park when it can be had by merely

zoning land "open space?"

'See generally L. Tribe, American Constitutional Law

587 et seq. (2nd Ed. 1988). The Fifth Amendment deals

"with the idea that government must respect ‘vested

rights’ in property and contract--that certain settled

expectations of a focused and crystallized sort should be

secure against governmental disruption, at least without

appropriate compensation.”

2See, e.g., the case Reichert v. Felps, 73 U.S. (6 Wall.)

160 (1868), in which the U.S. Government under the

authority of the Judiciary Act of 1789 invalidated patents

by the Governor of the Northwest Territories in favor of

later issued U.S. patents. The Supreme Court had to

reverse the lower courts’ decisions and restore the

property to Felps.

—

The evolution of "regulatory taking" law has been, by

this Court’s own admission,’ less than clear and concrete

as one might expect, given the case-by-case analysis that

is required. Currently, the most clearly stated judicial

guide for determining whether a regulation constitutes a

taking is that there is no "set formula." In case after

case, the judiciary has avoided pronouncing distinct,

concrete guidelines for such a determination.‘ Instead,

this Court has pronounced that "there-is no set formula

to determine when a taking occurs," and has repeatedly

noted that "[t]he question of what constitutes a ‘taking’

for purposes of the Fifth Amendment has proved to be

a problem of considerable difficulty." Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 123

(1978).

Admittedly, it would be difficult, if even possible, to

develop a set formula for every case to determine when

a regulation becomes a taking. However, the Court in

this case has the opportunity to clarify guiding principles

mentioned, but not fully explained, in regulatory takings

cases for sixty-eight years. In all the cases since the 1922

3See Penn_Central Transportation Co. v. New York

City, 438 U.S. 104 (1978); Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922); Kaiser Aetna v. United

States, 444 U.S. 164 (1979); PruneYard Shopping Center v.

Robins, 447 U.S. 74 (1980); San Diego Gas & Elec. Co. v.

San Diego 450 U.S. 621 (1981); Agins v. City of Tiburon

447 US. 255 (1980); Nollan v. California Coastal

Comm'n, 438 U.S. 825 (1986); Keystone Bituminous Coal

Ass’n v. DeBenedictis, 480 U.S. 470 (1987)

‘See footnote 3.

an

Pennsylvania Coal case, perhaps none has set forth a

regulatory takings doctrine with any more clarity than

Justice Holmes’ statement that "[w]hile property may be

regulated to a certain extent, if regulation goes too far it

will be recognized as a taking." Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922).

Petitioner brings this case before this esteemed Court

because the courts in California need further guidance in

interpreting the Fifth Amendment of the US.

Constitution. Planners and property owners alike as well

as their respective counsel have reviewed the cases from

the 1987 term’ and many of the law reviews® in light of

SFirst English Evangelical Lutheran Church of

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

Nollan v. California Coastal Comm’n, 438 U.S. 825

(1987); Keystone Bituminous Coal Ass’n v. DeBenedictis

480 U.S. 470 (1987)

Salsich Jr., Keystone Bituminous Coal, First English

and Nollan: A Framework for Accommodation? 34 J. of

Urb. and Contemp. L. 173 (1988); Symposium: Land-

Use, Zoning and Linkage Requirements Affecting Pace of

Urban Growth, 20 Urban Lawyer 413; Sussna, The

Concept of Highest and Best Use Under Takings Theory, 21

The Urban Lawyer 113 (1989); Symposium: Ufilitarian

Balancing and Formalism in Takings, 88 Colum. L. Rev.

1581 (1988); Peterson, Land Use Regulatory "Takings"

Revisited: The New Supreme Court Approaches, 39

Hastings L.J. 335 (1988); see also footnote 15 and cases

cited therein.

= a

previous cases dealing with regulatory takings’ and still

they are in a quandary.

This Court has consistently reiterated the rule set

forth in Pennsylvania Coal that a regulation that goes

"too far" can be a taking, but the definition of "too far’

remains unclear.

In evaluating the character of an alleged regulatory

"taking" action, this Court has observed that it is

necessary to apply the multifactor balancing test which

has appeared in taking cases since Penn Central and

includes ‘such factors as the character of the

governmental action, its economic impact and _ its

interference with reasonable investment-backed

expectations." PruneYard at 83.

However, when this Court analyzes a physical "taking"

(whether it results from a regulation or not) the standard

is much more relaxed:

When "the character of the governmental action"

(cite omitted) is a permanent physical occupation

of property, our cases uniformly have found a

taking to the extent of the occupation, without

regard to whether the action achieves an

important public benefit or has only minimal

economic impact on the owner.

Loretto at 434-435.

Unlike the physical takings analysis, regulatory takings

analysis involves a balancing of factors to determine what

is "too far" as was noted by Chief Justice Rehnquist in his

dissent in Keystone.

7See footnote 3.

-8-

..we have recognized that regulations--unlike

physical invasions--do not typically extinguish the

“full bundle" of rights in a particular piece of

property....This characteristic of regulations

frequently makes unclear the breadth of their

impact on identifiable segments of property, and

has required that we evaluate the effects in light

of the “several factors" enumerated in Penn

Central Transportation Co....

Keystone dissent at 516.

In Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985), although unable to

decide on the merits of the case because of procedural

deficiencies, this Court made a statement that could be

construed to clarify the concept of "too far" as "that point

at which a regulation becomes so onerous that it has the

same effect as an appropriation of the property through

eminent domain or physical possession." Jd. at 199. See

also Pennsylvania Coal at 413.

The guidance of this Court is needed to assist all

interested parties in better understanding when a

regulation goes "too far," and to avoid the inequities that

occur from a rule that seems to allow compensation for

a minor physical invasion but not for a regulatory

imposition that leaves only the barest of rights.

If the County of Los Angeles had determined that the

most effective method of handling the water runoff was

to put in a flood control channel through Petitioner’s

property, the appeiiate court seemingly, by applying the

guidelines of the Court vis-a-vis physical takings, would

{

:

is

have little difficulty in finding a taking of private land for

public use requiring just compensation. 7

The County of Los Angeles, however, has

accomplished the same thing by prohibiting reasonable

use of the property, thereby creating a natural runoff.

Why should the standard of analysis be different for

the two approaches available to the County? This Court

has found a taking when a cable is stretched across the

roof of a building pursuant to an ordinance® but not

when 27 million tons of coal are prohibited by ordinance

from being mined.? Given these two extremes, what

governmental entity would choose the Loretto approach

when the Keystone approach is available?

The Petitioner, in fact, is damaged far greater by the

County’s choice. If it had chosen to put in a channel

(designed, of course, to blend with the natural setting),

Petitioner would then presumably be entitled to use the

rest of its property for its intended purpose with access

restricted only to the runoff channel itself; not an

uncommon situation. The diminution in value, although

present, would be less and would be compensable.

The Petitioner’s property under the County’s choice

is rendered virtually valueless. Who would want to own

or pay money for land that is useful only for cooking

meals (without a kitchen, of course), playing games,

giving lessons (outdoors, of course: query, what if it

rains?) and pitching tents (the ordinance states that one

8Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982)

9Keystone Bituminous Coal Ass'n v. DeBenedictis 480

U.S. 470 (1987)

-10.-

can not place a structure_in the flood protection area so

even pitching tents is suspect)? These minimal uses and

lack of economic value, based on the County’s decision

to declare the property a "flood protection area," and the

method it chose to accomplish that, must be a regulatory

taking pursuant to the Fifth Amendment.

Il. THE PUBLIC AT LARGE, RATHER THAN

THE INDIVIDUAL PROPERTY OWNER,

SHOULD BEAR THE COST OF PUBLIC

IMPROVEMENTS WHEN THE BURDEN

ON THE INDIVIDUAL IS MORE AND

DIFFERENT THAN THAT ON THE

PUBLIC.

In determining when there is a "taking," both courts

and commentators agree that an individual property

owner should not be forced alone to bear the burdens of

providing a public benefit. This Court has consistently

recognized that one of the principal purposes of the Fifth

Amendment is "to bar Government from forcing some

people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole."!°

10Nollan v. California Coastal Comm’n, 438 U.S. 825,

835, n.4 (1986); San Diego Gas & Elec. Co. v. San Diego

450 U.S. 621, 656 (1981) (Brennan, J., dissenting); Penn

Central Transportation Co. v. New York City, 438 U.S. 104,

123 (1978); PruneYard Shopping Center v. Robins, 447 U.S.

74, 83 (1980).

—

se

In Agins v. City of Tiburon 447 U.S. 255 (1980), the

Court restated the principle of shifting burdens based on

fairness:

The determination that governmental action

constitutes a taking is, in essence, a determination

that the public at large, rather than a single

owner, must bear the burden of an exercise of

State power in the public interest. /d. at 260.

An analysis of the Agins case demonstrates that

important factors included not only the legitimate state

interest,'' but also the degree of reasonable investment

backed expectations (Agins was planning to develop raw

land for residential purposes); the reciprocity of

advantage (similarly situated properties were likewise

affected); the prevention of beneficial use of the

property; and the degree to which a fundamental

attribute of ownership is extinguished (Agins could still

use the land for less dense residential purposes).

In contrast, application of the rule to this case shows

that despite the fact there is indeed a_ legitimate

governmental interest, the Church has more than a mere

expectation of use, it has decades of vested use. There

is no land or profit speculation involved. Because of its

location, Petitioner’s property is more affected than

others by the moratorium. Not only has best use, but

But see Nollan in which this Court stated that "our

cases describe the condition for abridgement of property —

rights through the police power as a_ substantial

advanc[ing] of a legitimate state interest. Nollan at 841.

>. re

practically all use (an essential ownership attribute) has

been denied.

The government’s goal of preventing harm to property

and life in the instant case is laudable. Surely, it is within

the government’s police power to attain such an end,

however, as was noted by one commentator, "since some

losses can be imposed constitutionally, the problem for

takings jurisprudence is to decide when an individual has

borne more than his or her ‘just share of the burdens of

government.”"!2

Chief Justice Rehnquist, in his dissent in Keystone,

perhaps most succinctly stated the goal of the Fifth

Amendment.

Though...the Fifth Amendment does not prevent

actions that secure a ‘reciprocity of advantage,’

...it is designed to prevent "the public from loading

upon one individual nore than his just share of

the burdens of government, and says that when he

surrenders to the public something more and

different from that which is exacted from other

members of the public, a full and just equivalent

shall be returned to him."

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.

470, 512 (1987) (citing Monogahela Navigation Co. v.

United States, 148 U.S. 312, 325 (1893)).

In determining the burden on the Church it is helpful

to explore the cost to the Church to meet the purpose it

12Rose-Ackerman, Against Ad Hocery: A Commentary

on Michelman, 88 Colum. L. Rev. 1697, 1708 (1988)

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set out to accomplish decades ago, and in fact did

accomplish until the moratorium.

In operation was a convention center, a retreat for its

parishioners. A place for handicapped children to get

away from the city. A place of reflection. To serve all

parishioners of varying age and agility, buildings are

required, including a chapel for worship.

To accomplish this purpose, the Church must now

purchase other land in the mountains, but not in a

similarly protected zone owned by the government (much

of the land in the mountains above Los Angeles is owned

by the Federal government). The available land is

perhaps beyond the financial reach of the Church

because of the economics of supply and demand. While

encumbered with land that is for all practical purposes

unusable, but still requires an ongoing debt service, the

Church must find property to accomplish its purpose.

This financial burden on the Church is disproportionately

heavy compared to the burden on the public at large in

Los Angeles County which frequently adds flood control

facilities to its sprawling flood control infrastructure. For

decades, the populous of Los Angeles County has been

served by a flood control system that has, with great

success, protected life and property from major

destruction. Compensating the church and passing this

cost on to the 8,650,300 people of Los Angeles County’?

is the only fair and just thing to do.

13Dept. of Finance, State of California, Population

Estimates of California Cities and Counties January 1, 1988

to January, 1, 1989 (May, 1989)

sth

In the words of Justice Holmes:

We are in danger of forgetting that a strong public

desire to improve the public condition is not

enough to warrant achieving the desire by a

shorter cut than the constitutional way of paying

for the change.

Pennsylvania Coal at 416.

Ill. THERE IS A NEED FOR THIS COURT TO

MORE ADEQUATELY DEFINE

"ECONOMICALLY VIABLE USE" WHICH

MUST INCLUDE REASONABLE

INVESTMENT-BACKED EXPECTATIONS

Of particular importance in this case because of their

use in previous cases are the terms “economically viable

use"'* and “reasonable investment-backed expectations."!S

4Agins v. City of Tiburon, 447 U.S. 255, 260 (1980);

Penn Central Transp. Co. v. City of New York, 438 U.S.

104, 124 (1978); Kaiser Aetna v. United States, 444 US.

164, 174, n.8 (1979); Nollan v. California Coastal Comm'n,

483 U.S. 825, 834 (1987); Keystone Bituminous Coal Ass'n

v. DeBenedictis, 480 U.S. 470, 485 (1987); Williamson

County Regional Planning Commn. v. Hamilton Bank, 473

U.S. 172 (1985).

1SPenn Central, 438 U.S. 104; Andrus v. Allard, 444

U.S. 51 (1979); Kaiser Aetna, 444 U.S. 164; PruneYard

Shopping Center v. Robins, 447 U.S. 74 (1980); Loretto v.

Teleprompter Manhattan CATV Corp., 458 US. 419

(1982); Ruckelshaus v. Monsanto Co., 467 U.S. 986

(1984); Williamson County, 473 U.S. 172; Keystone, 480

.

Unfortunately, case law creates an ambiguous picture of

what these concepts actually mean in today’s regulatory

takings arena.

This Court has discussed the economic harm of a

governmental action in many ways since 1922, for

example.

a State statute that substantially furthers important

public policies may so frustrate distinct investment-

backed expectations as to amount to a ‘taking’.

Penn Central at 127.

(a)ny intelligibie takings inquiry must also ask

whether the extent of the state’s interference is so

severe as to constitute a compensable taking in

light of the owner's alternative uses for the

property.

Loretto at 453.

We have held that land use regulation can effect

a taking if it ‘does not substantially advance

legitimate state interests,’.... or denies an owner

economically viable use of his land...

Keystone at 495 citing Agins v. Tiburon, supra at 260. See

also Penn Central.

Although many commentators have written about

investment-backed expectations and the other factors

USS. 470, 493 et seq.; Hodel v. Irving, 481 U.S. 704, 715

(1987); Nollan, 483 U.S. at 833, fn 2.

<i.

mentioned in the leading regulatory takings cases,'® none

have been able to discern a consistent definitional

framework sufficient to place owners and regulators on

notice of the consequences of their actions.

The appellate court, in this case, stated the test as "...

a private landowner is entitled to compensation when a

land use regulation either does not substantially advance

a legitimate public purpose or deprives the landowner of

‘all uses’ (emphasis added) of the property."’’ citing W.

Falik and A. Shimko, The Takings News: The Supreme

Count Forges a New Direction in Land Use Jurisprudence,

23 Real Prop., Prob. & Tr. J. 1.

If this Court does not hear this case, then the law in

California will be that a regulatory taking does not exist

See, e.g., Rose-Ackerman, Against Ad Hocery: A

Commentary on Michelman, 88 Colum. L. Rev. 1697

(1988) (arguing that the uncertainty created by ad hoc

inquiry is detrimental to the real estate community and

the economy as a whole); Epstein, An Outline of Takings,

41 U. Miami L. Rev. 3 (1986); Kmiec, The Original

Understanding of the Taking Clause is Neither Weak nor

Obtuse, 88 Colum. L. Rev. 1630 (1988); Mandelker,

Investment-Backed Expectations: Is There a Taking?, 31 J.

of Urb. and Conteffip. L. 3 (1987) (concluding that the

test may as well be ignored); Michelman, Takings, 1987,

88 Colum. L. Rev. 1600 (1988)

‘The appellate court did enunciate the test as set

forth in Keystone as denial of “economically viable use,"

however, its analysis was based on “all uses."

» 9.

unless all use of property is destroyed.'® The appellate

court, as a matter of fact'? determined that the Church

was not denied all use of its property, based on the fact

the Church maintained a campground, however, it

operated a camp, not just a campground. At this camp

were buildings to serve the needs of all its parishioners,

irrespective of age or physical ability.

The appellate court, insensitive to the range of uses,

held that because "camping" could still be possible (albeit

very rustic camping) there was some use to the property

and no taking occurred. The appellate court

acknowledged that these sorts of uses would have meant

little to another type of landowner, but not to the Church

because it operates a campground, so uses of value to

that purpose remained available after the moratorium

went into effect.

Had there bee= a trial, permitting a more accurate

and expanded record for analysis, the court may have

reached a different conclusion.

The Church has been denied one of the basic rights

inherent in any theory of property, the ability to make

improvements and utilize land beyond its natural state.

By any standard, either looking at the beneficial use of

'8The standard, it seems, is economically viable use,

not all or reasonable use. Still confusing for private

property owners and planners alike is what constitutes

economically viable use.

'9As stated by Petitioner, the appellate court did not

remand the case for trial. C.A.R. is of the opinion that

a trial should have been held in order for a full

exposition of all the facts.

~ &

development which the government has taken away, or

looking to what the owner has left - the ability to pitch

tents - the Church has been substantially deprived of

vested property rights. In San Diego Gas, Justice

Brennan noted in his dissent that "[f]rom the property

owner’s point of view, it may matter little whether his

land is condemned or flooded, or whether it is restricted

by regulation to use in its natural state, if the effect in

both cases is to deprive him of all beneficial use of it."

Id. at 652. Requiring the Church to keep the land in its

natural state effectively denies it all beneficial use of the

property.

Additionally, in his Penn Central dissent, now Chief

Justice Rehnquist rejected the contention that a taking

only occurs when the property owner is denied all

reasonable return on his property. 438 US. at 149.

Justice Rehnquist also noted that "[a] taking does not

become a noncompensable exercise of police power

simply because the government in its grace allows the

owner some ‘reasonable’ use of his property." Jd. at 149

(emphasis added).

This Court’s assistance by better defining

“economically viable use" and rejecting the “all use"

standard is needed.

CONCLUSION

C.A.R. is of the opinion further guidance on the

definition of a regulatory taking is needed from this

Court. It is believed that this case is the proper vehicle

for that guidance. We urge the Court to take this case.

+

The California appellate court attempted to

thoughtfully apply the "guideposts" this Court has

provided for analysis of regulatory takings. The

untenable result of its analysis demonstrates the need for

this Court to grant Petitioner’s request.

DATED: _ Loe. AO cise

Respectfully submitted,

William M. Pfeiffer, Vice President and General Counsel

Judith K. Herzberg, Senior Counsel

By:

Judith K. Herzberg

No. 89-826

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

First English Evangelical Lutheran Church of Glendale,

Petitioner,

vs.

County of Los Angeles, California,

Respondent.

STATE OF CALIFORNIA )

) 8s:

COUNTY OF LOS ANGELES )

Esiquia Gonzales, being first duly sworn, deposes and says: I am a citizen of the

United States and a resident of or employed in the county aforesaid. I am over the

age of 18 years and not a party to the said action. My business address is 3550

Wilshire Boulevard, Suite 916, Los Angeles, California 90010. On this date, |

served the within BRIEF OF AMICUS CURIAE IN SUPPORT OF PETITIONER

on the interested parties in said action by placing three true copies thereof with

first-class postage fully prepaid, in the United States post office mailbox at Los

Angeles, California, in sealed envelopes addressed as follows:

MICHAEL M. BERGER, ESQ. JACK R. WHITE, ESQ.

FADEM, BERGER & NORTON HILL, FARRER & BURRILL

Suite 900 35th Floor, Union Bank Square

12424 Wilshire Boulevard 445 South Figueroa Street

Los Angeles, CA 90025 Los Angeles, CA 90071-1666

That affiant makes this service, for WILLIAM M. PFEIFFER, Counsel of Record

for California Association of Realtors®, Amicus Curiae herein, and that to the

best of my knowledge all the persons required to be served in said action have

been served.

Esiquia Gonzales U

On December 21, 1989, before me, the undersigned, a Notary Public in and for

said County and State, personally appeared Esiquia Gonzales, known to me (or

proved to me on the basis of satisfactory evidence) to be the person whose name is

subscribed to the within instrument, and acknowledged to me that she executed the

Mad, Mi. Wil.

Notary Public in and for

said county and state

Witness my hand and official seal.

OFFICIAL SEAL

Cae) Theodore Matsuo Wilden

Re 4 2): NOTARY PUBLIC - CALIFORNIA

eiaie 17S ANGELES counTY —_—|

PES“ sy comm. exzires WOW 30, 1990 (

Sao a es eee le

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