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

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Subfame Ceust 5.

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No. 89-826 JAN 5: 1990

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i JOSEPH & SPANIOL, JR,

In The | a

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

Court of Appeal Of The State of California,

Second Appellate District, Division Seven

AMICUS CURIAE BRIEF OF JOHN K. VAN DE KAMP,

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

IN OPPOSITION

JOHN K. VAN DE KAMP, Attorney General

of the State of California

N. GREGORY TAYLOR

Assistant Attorney General

THEODORA P. BERGER

Assistant Attorney Genera!

CRAIG THOMPSON

Deputy Attorney General

TERRY T. FUJIMOTO

Deputy Attorney General

(Counsel of Record)

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2152

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

REASONS WHY THE PETITION SHOULD

BE DENIED

I

II

THE COURT OF APPEAL DID NOT

CONTRAVENE THIS COURT’S

REMAND ORDER OR VIOLATE DUE

PROCESS IN DETERMINING THAT

PETITIONER’S COMPLAINT FAILED

TO ALLEGE FACTS SUFFICIENT TO

STATE A CAUSE OF ACTION FOR AN

UNCONSTITUTIONAL TAKING

THE OPINION OF THE COURT OF

APPEAL CORRECTLY INTERPRETED

AND APPLIED THE DECISIONS OF

THIS COURT RELATING TO THE

STANDARD OF REVIEW FOR

DETERMINING WHETHER A

REGULATORY TAKING HAS

OCCURRED

A. The Court of Appeal Did

Not Ignore This Court’s =

Guidance for Remand

B. The Court of -— Properly

Interpreted And Applied the Public

Safety Exemption In the Context of

Takings Analysis

ii

TABLE OF CONTENTS

C. The Court of Appeal Applied the

Proper Test in Rejecting

Petitioner’s Facial Challenge

to the Interim Safety Ordinance

D. The Court of Appeal Did Not

Misconstrue or Misinterpret Nollan

CONCLUSION

Page

10

12

15

TABLE OF AUTHORITIES

| Page

Cases

Agins v. City of Tiburon, 4 Cal.3d 266 (1979) 5

ns v. City of Tiburon,

a7 US. 285 (1980) 3, 5, 6, 10, 11, 13

Andrus v. Allard, 444 U.S. 57, 65-66 (1979) 13, 14

First English Evangelical Lutheran

Church of Glendale v. County of Los

Angeles, 482 U.S. 304, 313 (1987) 3, 5, 9, 11, 12

Gamer v. Louisiana, 368 U.S. 157 (1961) 6

Hodel v. Virginia Surface Mining &

Reclamation Ass’n., 452 U.S. 264, 294-296 (1981) 11

Keenan v. Dean, 134 Cal.App.3d 189 (1956) 4

Keystone Bituminous Coal Ass’n. v.

De Benedictis, 480 U.S. 470 (1986) 8-10

Mugler v. Kansas, 123 U.S. 623 (1897) 8-10, 14

Newcomb v. Brennan, 538 F.2d 825, 829

(7th Cir. 1977) 4

Nollan v. Cal. Coastal Comm.,

483 U.S. 825 (1987) 12-14

Ohio Bell Tel. Co. v. Pub. Util. Commun.

301 U.S. 292, 301 4, 6

Patterson v. Colorado ex rel. Attorney

General, 205 U.S. 454, 461 (1907) 4

iv

TABLE OF AUTHORITIES (contd.)

Penn. Centrat Transp. Co. v. City of New York,

438 U.S. 104, 130-131 (1978) 13, 14

People v. Terry, 38 Cal.App.3d 432, 439 (1974) 4

Renaud v. Abbott, 116 U.S. 285-286 (1985) 4

Statutes and Regulations

Cal. Evid. Code, § 452 4

Cal. Evid. Code, § 455 4

Cal. Evid. Code, § 459 4

i

INTEREST OF AMICUS CURIAE

Amicus respectfully file this brief in support of

respondent County of Los Angeles pursuant to rule

37.5 of the rules of the Supreme Court of the United

States.

The issues presented by this case are of fundamental

importance to the State of California. A decision

holding that the flood plain safety measures enforced

by respondent herein have violated the United States

Constitution would seriously impair the ability of the

State and its political subdivisions to carry out their

diverse police power responsibilities. Adoption of

petitioner’s radical reformation of takings jurisprudence

would cripple amicus’ ability to perform regulatory

functions upon which its citizens’ health, safety and

welfare quite literally depend.

STATEMENT OF THE CASE

Amicus adopts respondent’s Statement of the Case.

SUMMARY OF ARGUMENT

1. - Facial challenges to an alleged regulatory taking

may be decided on demurrer without a "factual,

evidentiary inquiry" based solely upon the pleadings and

judicially noticed facts. (Agins v. City of Tiburon, 447

U.S. 255 (1980).) Neither Nollan nor First English

changes that standard.

2

2. The taking of judicial notice of facts for the first

time on appeal does not raise due process concerns

where they involve matters of common knowledge such

as statutes and local ordinances. Furthermore, to the

extent judicial notice of certain matters is permissible

under local law, this Court is bound by that

determination. Under California law, an appellate

court can take judicial notice even though the facts

were not presented to the trial court.

3. The Court of Appeal in addressing the takings

challenge to the interim flood ordinance enacted by

respondent correctly interpreted this Court’s standards

for determining when a regulation amounts to a taking

of property.

REASONS WHY THE PETITION SHOULD BE DENIED

I

THE COURT OF APPEAL DID NOT

CONTRAVENE THIS COURT'S REMAND

ORDER OR VIOLATE DUE PROCESS IN

DETERMINING THAT PETITIONER'S

COMPLAINT FAILED TO ALLEGE FACTS

SUFFICIENT TO STATE A CAUSE OF

ACTION FOR AN UNCONSTITUTIONAL

TAKING

Contrary to petitioner’s claim, this Court did not

order that there be a “factual, evidentiary inquiry" or

trial to determine whether a taking occurred. Rather,

this Court limited its decision solely to the remedies

issue, namely, whether the Fifth Amendment requires

—

3

compensation for a regulatory taking. Indeed, this

Court specifically recognized:

We accordingly have no occasion to decide

whether the ordinance at issue actually denied

appellant all use of its property or whether the

County might avoid the conclusion that 4a

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.

[Citations omitted.] These questions, of course,

remain open for decision on the remand we direct

today. (First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 US.

304, 313 (1987).

The circumscribed nature of this Court’s holding was,

as the Court of Appeal observed, underscored by

Justice Stevens in his dissenting opinion and was not

"“controverted in any way by the majority opinion.”

(Pet. for Writ of Certiorari, Appendix A, p. A-9; First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 325-328 (1987).)

Thus, it cannot be said that this Court directed or

required the Court of Appeal on remand to resolve the

takings issue in any particular manner.

Furthermore, the Court of Appeal’s decision to

sustain the trial court’s judgment on the alternative

ground that the complaint failed to allege facts

sufficient to state a cause of action, was wholly

consistent with California rules of appellate review

4

which provide that a correct ruling by the trial court

must be affirmed on appeal even if it is based on

erroneous reasoning if there is an alternative rationale

which will support the judgment. (Keenan v. Dean, 134

Cal.App.3d 189 (1956).) To the extent petitioner

objects to the Court of Appeal’s application of state

law, petitioner's claim does not raise a federal question

appropriate for review by this Court. (See Patterson v.

Colorado ex rel. Attorney General, 205 U.S. 454, 461

(1907).)

Finally, there is no merit to petitioner’s assertion

that judicial notice of the disputed interim ordinance

by the Court of Appeal violates due process. This

Court has long held that courts may take judicial notice

of "matter of common knowledge" including state

Statutes, city charters and local ordinances. (See Ohio

Bell Tel. Co. v. Pub. Util. Commn. 301 U.S. 292, 301;

Newcomb v. Brennan, 538 F.2d 825, 829 (7th Cir.

1977).) To the extent judicial notice of certain matters

is permitted under local law, this Court is "bound" by

that determination. (Renaud v. Abbott, 116 U.S. 285-

286 (1985).)

Under California law, courts may take judicial notice

of all regulations or enactments issued by any public

entity (Cal. Evid. Code, § 452(b)), and a reviewing

court may take judicial] notice of any matter that could

have been judicially noticed by the trial court even

though they were not presented to the trial court as

long as the reviewing court affords each party

5

reasonable opportunity to present to the court

information relevant to the propriety of taking judicial

notice. (Cal. Evid. Code, § 455(a), 459(c); People v.

Terry, 38 Cal.App.3d 432, 439 (1974).)

Furthermore, it is apparent that this Court saw no

due process problems with the Court of Appeal taking

judicial notice of the interim ordinance. Justice Stevens

in his dissent in this case, without objection from any

other Justice, similarly took judicial notice of the

interim flood ordinance. (First English, supra, 482 U.S.

at 326, fn. 6.)

Accordingly, it was entirely proper for the Court of

Appeal to take judicial notice of the disputed interim

ordinance and related provisions. (Pet. (Opinion) p. A-

19; also see Pet. (Appendix D).)

Furthermore, the Court of Appeal’s decision directly

mirrored this Court’s resolution of the identical issue in

Agins v. City of Tiburon, 477 U.S. 255 (1980). In Agins,

both the California Supreme Court (see Agins v. City of

Tiburon, 4 Cal.3d 266 (1979)) and this Court upheld

an order sustaining a demurrer to an_ inverse

condemnation complaint despite an allegation that the

zoning ordinance would "completely destro[y] the value

of [appellant’s] property for any purpose or use

whatsoever. . ." (Agins, supra, 447 U.S. at 259, fn. 6.)

The California high court, taking judicial notice of the

relevant ordinances, concluded that the enactment on

its face did not deprive plaintiffs of all reasonable use

since it allowed them to build between one to five

6

residential units on their land. (Agins, supra, 24 Cal.3d

277.) This Court in affirming the judgment, rejected

the assertion that it was improper for the California

Supreme Court to take judicial notice of the zoning

ordinances.

This Court reasoned that under California law,

judicial notice of local ordinances was permissible and

that the State Supreme Court "merely rejected

allegations inconsistent with the explicit terms of the

ordinance under review." (Agins, supra, 477 USS. at

259, fn. 6.)

Here, as in Agins, the sole purpose of taking judicial

notice of the disputed ordinances was to "compare the

express terms of the [regulations] with the factual

allegaiions in the complaint." (Agins, supra, 477 U.S. at

259, fn. 6; Pet. (Opinion), p. A-19.) On that basis, the

Court of Appeal, properly sustained the judgment of

the trial court.

Neither of the two cases cited by petitioner are

applicable to the circumstances here or compel reversal

of the judgment below. (E.g., Ohio Bell Tel. Co. v. Pub.

Util. Commn., 301 U.S. 292 (1937); Gamer v. Louisiana,

368 U.S. 157 (1961). Gamer and Ohio Bell merely

stand for the self evident proposition that appellate

courts may not judicially notice facts which are properly

in dispute and the province of the trier of fact.

Furthermore, both cases are clearly distinguishable on

other grounds as well. (See Respondent’s Brief in

Opposition, pp. 18-19.)

7

I]

THE OPINION OF THE COURT OF APPEAL

CORRECTLY INTERPRETED AND APPLIED

THE DECISIONS OF THIS COURT RELATING

TO THE STANDARD OF REVIEW FOR

DETERMINING WHETHER A REGULATORY

TAKING HAS OCCURRED

A. The Court of Appeal Did

Not Ignore This Court’s

Guidance for Remand

Petitioner argues that the Court of Appeal in

concluding that no taking has occurred, relied solely on

the public safety justification for the enactment and

failed to adequately address whether the ordinance

provided petitioner economically viable use of its

property. Thus, petitioner asserts that the Court of

Appeal’s conclusion cannot be reconciled with this

Court’s view that the "purpose of the Just

Compensation Clause . . . is to require government to

compensate for property taken in the course of

‘otherwise proper’ interferences." (Pet., p. 13.)

Contrary to petitioner’s claim, the Court of Appeal

did not ignore this Court’s pronouncements, it simply

concluded after a comparison of the terms of the flood

safety measure and the allegations of the complaint

that petitioner was not entitled to compensation

because the interim ordinance did not work a taking of

property. (Pet. (Opinion), p. A28.)

8

B. The Court of Appeal Properly Interpreted

And Applied the Public Safety Exemption

In the Context of Takings Analysis

Petitioner also contends the court below misapplied

the "public safety" or "nuisance" exception line of cases

exemplified by this Court’s decision in Mugler v. Kansas,

123 U.S. 623 (1897) and more recently in Keystone

Bituminous Coal Ass’n. v. De Benedictis, 480 U.S. 470

(1986).

Specifically, petitioner asserts that the "extent of the

use prohibition approved the Court of Appeal in this

case goes beyond anything this court has ever

countenanced” (Pet., p. 18) and accuses the Court of

Appeal of applying the public safety exception in a

manner which would "preclude all reasonable use of

First Church’s property without compensation." (Pet.,

p. 18.) The fallacy of this argument is, as respondent

aptedly observed, that it rests on a “patently false

premise." (Respondent’s Brief in Opposition, p. 21.)

The Court of Appeal specifically found, contrary to

petitioner’s contention, that the interim flood safety

ordinance did not deprive First English of “all use" of

its property. (Pet. (Opinion), pp. A18, A24.)

Furthermore, there is nothing in the Court of

Appeal’s opinion which even remotely suggests that the

~———— court misconstrued or misapplied the public safety or

"nuisance" exception.

On the contrary, the Court of Appeal recognized, as

did this Court in Mugler and Keystone, that a

9

"prohibition simply upon the use of property for

purposes that are declare by valid legislation, to be

injurious to the . . . safety of the community cannot, in

any just sense, be deemed a taking or an appropnation

of property for the public benefit." (Mugler, supra, 123

U.S. 668-669; Pet. (Opinion), p. All.) This Court, in

reaffirming Mugler, observed that the "special status of

this type of state action can also be understood on the

simply theory that since no individual has a right to use

his property so as to create a nuisance or otherwise

harm others, the State has no ‘taken’ anything when it

asserts its power to enjoin the nuisance like activity."

(Keystone, supra,, 480 U.S. at 491, fn. 20.)

In the present case, this Court has acknowledged

that even assuming the ordinance in question denied

petitioner all use of the property, it may still be

"insulated as part of the state’s authority to enact safety

regulations." (First English, supra, 482 U.S. at 313.)

The decision of the Court of Appeal below was

entirely consistent with these principles. (Pet.

(Opinion), pp. Al6-A24.)

In any event, the Court of Appeal in rejecting the

takings claim did not rely solely on the public safety

exception. Here as in Keystone, supra, 480 U.S. at 492-

493, the Court of Appeal found that the safety

ordinance besides being insulated as part of the State’s

authority to enact safety regulations, did not deprive

petitioner of all use of its property. (Pet. (Opinion),

pp. A18, fn. 10, A25.)

10

Petitioner seeks to distinguish Mugler and the present

case on the ground that the former involved a specific

use of property which this Court held could be

prevented because it constituted a nuisance. (Pet., p.

19.) In fact, there is little difference between the

application of the public safety exception in Mugler and

here. Here as in Mugler, the safety ordinance under

review only prohibited, temporarily, a specific hazardous

use of property, namely, the reconstruction of buildings

in a flood prone area. (Pet. (Opinion), p. A18.)

cc The Court of Appeal Applied the Proper

Test in Rejecting Petitioner’s Facial

Challenge to the Interim Safety Ordinance

Petitioner asserts that the Court of Appeal "ignored"

this Court’s standards for determining whether a

regulation effects a taking of property. (Pet. pp. 16,

18.) This contention is as respondent noted “patently

frivolous." (Respondent’s Brief in Opposition, p. 24.)

Because petitioner’s taking claim in the present case

arose in the context of a "facial" challenge of the

ordinance, the sole question was whether the "mere

enactment” of the flood safety provision constitutes a

taking. (Keystone, supra, 480 U.S. at 495.) The test to

be applied in considering a facial challenge is whether

the ordinance fails to substantially advance legitimate

State interest or denies petitioner economically viable

use of his land. (Agins, supra, 447 US. at 260.) The

Court of Appeal here in explicitly applying the Agins

formulation, determined that the petition failed to state

11

a cause of action for an unconstitutional taking

precisely because the interim ordinance in question

“substantially advanced the preeminent state interest in

public safety and did not deny petitioner all use of its

property." (Pet. (Opinion), p. A2, A18.)

Petitioner, although acknowledging that the court

below "mentions" the Agins test, asserts that there is no

way, without a trial, that any court can “determine

whether the County’s regulation permitted “economically

viable use or not." (Pet., p. 12.) Petitioner overlooks

the fact that this Court in Agins applied the two-

pronged Agins test based solely upon the pleadings and

judicially notice provisions of the disputed ordinance in

disposing of a facial takings challenge. (Agins, 447 US.

at 259, fn. 8.)

Lastly, the Court of Appeal did not err in failing to

apply the "reasonable investment backed expectations"

test. (See Pet. p. 16.) First, the test applies only

where there is an "as applied" challenge to an alleged

regulatory taking. (Hodel v. Virginia Surface Mining &

Reclamation Ass’n., 452 U.S. 264, 294-296 (1981). In

contrast, this case involved a facial attack on the

ordinance under review. Secondly, petitioner failed to

allege any fact which would demonstrate how the

interim ordinance could have interfered with any

reasonable investment back expectation interest.

Indeed, as Justice Stevens points out in his dissent in

this case, in light of the tragic flood and loss of life that

precipitated the safety regulation "it is hard to

12

understand how [petitioner] ever expected to rebuild

on Lutherglen." (First English, 482 U.S. at 327-328.)

D. The Court of Appeal Did Not

Misconstrue or Misinterpret Nollan

Petitioner also argues that the Court of Appeal

failed to apply the “heightened standard of judicial

review" this Court adopted in Nollan v. Cal. Coastal

Comm., 483 U.S. 825 (1987) for determining whether a

land use regulation substantially advances a legitimate

state interest. (Pet., pp. 25-28.)

The argument fails for two reasons. This Court in

Nollan made clear that heightened scrutiny was

intended to apply only where the "actual conveyance of

property is made a condition to the lifting of a land use

restriction, since in that context there is a heightened

risk that the purpose is avoidance of the compensation

requirement rather than the stated police power

objective." (Nollan, supra, 483 U.S. at 841.)

Here, unlike Nollan, the petitioner did not allege

that the limitation imposed was motivated by a desire

to acquire Lutherglen at a lower price. (Pet. (Opinion),

p. A25.) On the contrary, the flood ordinance was

clearly a legitimate safety regulation and not intended

as a means to circumvent compensating petitioner for

the loss of property; petitioner concedes as much.

Justice Stevens points out in his dissent, the

"legitimacy of the County’s interest in the enactment of

[the flood ordinance] is apparent from the face of the

a ge

-

13

ordinance and has never been challenged." (First

English, supra, 482 U.S. at 326-327.)

Furthermore, the conveyance of a property interest

present in Nollan is not apparent here. Thus,

application of the heightened scrutiny test in this case

is neither appropriate nor compelled by Nollan.

Secondly, the Court of Appeal, in fact, recognized

that Nollan reflected a “refinement” of the Agins test

and expressly held that under Nollan “there can be no

serious contention" that the safety ordinance failed to

substantially advance the precise legitimate state

interest. (Pet. (Opinion), pp. Al6, A25.)

Petitioner also claims that the Court of Appeal

ignored this Court’s language in Nollan that property

owners have a right to build on their own property

subject to reasonable regulation. (Pet., p. 24.) This

argument, as with petitioner’s other claims, is without

merit.

The crux of petitioner’s contention is that the right

to build is an identifiable and separable property

interest for takings purposes and thus the prohibition of

new development imposed by the County’s flood

measure deprived it of all economically viable use of its

land. There is nothing in Nollan or any other decision

of this court which compels such a result. To the

contrary, the right to build is merely one strand in the

bundle of property rights. Where an owner possesses

a full bundle of rights, the destruction of one strand is

not a taking because the aggregate must be viewed in

14

its entirety. (Andrus v. Allard, 444 U.S. 57, 65-66

(1979).)

As this Court explained in Penn. Central Transp. Co.

v. City of New York, 438 U.S. 104, 130-131 (1978):

Taking jurisprudence does not divide a single

parcel into discrete segments and attempt to

determine whether rights in a particular segment

have been entirely abrogated. In deciding

whether a particular governmental action has

effected a taking, this Court focuses rather both

on the character of the action and on the nature

of the interference with rights in the parcel as a

whole... .

Thus, here as in Andrus and Penn. Central, the flood

ordinance does not deprive petitioner of all

economically viable use of its land, it merely removes

one strand from the Church’s bundle of rights.

Petitioner still retains the ability to use the property in

any number of viable ways which are reflected in the

Court of Appeal’s decision below. (Pet. (Opinion), p.

A18-A24.)

Lastly, Nollan does not provide, as petitioner

contends, that one has a constitutional nght to build on

his property if to do so would create a potential risk of

harm to the public. (See Mugler, supra.) If the rule

were otherwise, as respondent observed, “all building

and safety codes would be invalid." (Respondent's

Brief in Opposition p. 27.) Accordingly, the Court of

15

Appeal in this case did not misconstrue or misapply

this Court’s decision in Nollan.

In short, petitioner raises no issues which demand

this Court’s attention. The sole question is whether the

Court of Appeal below faithfully followed this Court's

settle precedents in determining whether the ordinance

under review amounted to a taking of property. As

shown, the court acted properly. Therefore, review by

this Court is neither necessary or appropriate.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

DATED: January 4, 1990

Respectfully submitted,

JOHN K. VAN DE KAMP, Attorney General

of the State of California

N. GREGORY TAYLOR

Assistant Attorney General

THEODORA P. BERGER

Assistant Attorney General

CRAIG THOMPSON

Deputy Attorney General

TERRY T. FUJIMOTO

Deputy Attorney Genera!

(Counsel of Record)

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2152

Attorneys for Amicus Curiae

DECLARATION OF SERVICE

County of Los Angeles

I am a citizen of the United States and a resident of

yh gy py Ld phage Dy

I am over the age 8 years and not a

eS Se ee my business address is 3580

Boulevard, Los Angeles, California.

On January 5, 1990, I served the within Amicus

Curiae Brief of John K. Van de Kamp, Attorne

General of the State of California in Opposition on a

— ~~ © _— true co vod — enclosed in

sealed envelopes, tage prepaid, in

the United State Post mei bor Angeles,

California, addressed as follows:

Michael M. Berger Jack R. White

Fadem, Berger & Norton Hill, Farrer & Burrill

12424 Wilshire Boulevard 445 South Figueroa Street

Los Angeles, CA 90025 35th Floor, Union Bank

Bidg.

Los Angeles, CA 90071

DeWitt W. Clinton

County Counsel

Charles J. Moore

Prin. Deputy County Counsel

500 West Temple Street

Los Angeles, 90012

All parties required to be served have been served.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on January 5, 1990, at Los Angeles,

ete ao

JOSEPHINE D. ROSE