Amicus Curiae Brief — Batch v. Town of Chapel Hill

No. 89-1627

IN THE

Supreme Court ot the Gnited States

OCTOBER TERM, 1989

DEIRDRE V. BATCH.

Pet itione £

v.

TOWN OF CHAPEL HILL, NORTH CAROLINA.

Respond nt.

On Petition for Writ of Certiorari to the North

Carolina Supreme Court

MOTION OF THE NATIONAL ASSOCIATION OF HOME

BUILDERS FOR LEAVE TO FILE A

BRIEF AMICUS CURIAE AND

BRIEF IN SUPPORT OF THE PETITION

WILLIAM H. ETHIER

National Housing Center

15th & M Street, N.W.

Washington, D.C. 20005

(202) 822-0359

Counse l of Record

May 18, 1990

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

BEST AVAILABLE COPY

ee mataelal

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-1627

DEIRDRE V. BATCH,

Petitioner,

¥,

TOWN OF CHAPEL HILL, NORTH CAROLINA,

Respondent.

On Petition for Writ of Certiorari to the North

Carolina Supreme Court

MOTION OF THE NATIONAL ASSOCIATION OF HOME

BUILDERS FOR LEAVE TO FILE THE ATTACHED

BRIEF AMICUS CURIAE

The National Association of Home Builders (NAHB)

respectfully moves this Court for leave to file the

attached brief amicus curiae in support of Petitioner.

The NAHB has received the petitioner’s writter

consent to file this brief as amicus curiae in support

of petitioner and has filed the letter of consent with

the Clerk of this Court. The respondent town has

declined our request for consent to file a brief in

support of the petition.

The NAHB represents 157,000 builder and associ-

ate members organized into approximately 850 affil-

iated state and local associations in all fifty states,

the District of Columbia, and Puerto Rico. Its mem-

bers include not only people and firms that construct

and supply single-family homes but also apartment,

condominium, commercial and industrial builders, as

well as land developers and remodelers. It is the voice

of the American shelter industry.

The Just Compensation Clause and its implemen-

tation as a shield against oppressive governmental

land use regulation is of paramount importance to the

NAHB. The actual availability of compensation for

the occasional ordinance that results in a taking is

critical to the livelihood of private landowners who

either 1) have lost all reasonable economic use of their

property solely in order to serve the broader public

(i.e., governmental) interests, or 2) are otherwise faced

with governmental requirements that fail to substan-

tially advance legitimate governmental interests. The

latter type of governmental requirement is presented

in this case by the town’s defacto conversion of pri-

vate property into a public highway right-of-way.

The NAHB has been before this Court as an amicus

curiae or as of counsel on behalf of the property

owner in prior “takings” cases involving govern-

ments’ land use decisions. Nollan v. California Coastal

Commission, 483 U.S. 825 (1987); First English Evan-

gelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304 (1987); MacDonald, Sommer &

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

478 U.S. 1035 (1986); Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985); San Diego Gas & Electric

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

v. City of Tiburon, 447 U.S. 255 (1980). We submit

the attached brief to the Court to resolve the question

of whether a government that exacts a defacto right-

of-way from an individual for the public must pay just

compensation to the property owner when the prop-

erty owner neither contributes to the public’s need

for the right-of-way nor will benefit from the right-

of-way.

This amicus sincerely believes that the accompa-

nying brief will greatly assist the Court because our

concerns are much broader than those of petitioners.

Our members are faced with countless regulatory de-

cisions on a daily basis across the nation that affect

the use of privately held land and the ability to pro-

vide society with necessary and affordable shelter.

The vast majority of these decisions come from loca!

governments and, as pointed out in the accompanying

brief, some of these decisions do not respect the con-

stitutionally protected property rights of individuals.

While petitioner focuses her arguments on the harm

the town of Chapel Hill inflicts on her, our brief ad-

dresses the broader mandates of takings law that

should be applied against those government decisions

that abuse private rights and cites authorities differ-

ent from those in petitioner’s brief.

The government here claims that what it required

of the property owner was a lesser interest than that

required by the government in Nollan v. California

Coastal Commission, 483 U.S. 825 (1987) (involving

issuance of a permit to build a house conditioned on

the grant of an easement to the public to walk across

the private property), and, therefore, there is no con-

stitutional transgression. However, the court below

ii iil

does not even allow a property owner to ask the

constitutional question. This type of creative thinking

and pleading on the part of a local government and

the failure of the judiciary to supervise such actions

interferes with the constitutional right of all property

owners to use their land subject only to reasonable

regulation.

The Town of Chapel Hill does not stand alone in

this regard and it is in the interests of our members,

who are severely constrained by such governmental

creativity, to support a constitutional philosophy that

forces government decision makers to respect indi-

vidual rights.

For the above reasons, this Motion should be

granted.

Respectfully submitted,

is/ William H. Ethier

WILLIAM H. ETHIER

National Housing Center

15th & M Streets, N.W.

| Washington, D.C. 20005

(202) 822-0359

Counsel for Amicus

May 18, 1990

TABLE OF CONTENTS

Page

Taree GE QC ME ETI ccccercersinsccscscscorsccntnevsssnssecses il

INTEREST OF THE AMICUS CURIAE ............:0000000+: 1

SUMMARY OF THE REASONS FOR GRANTING THE

WRU snibinsnniaicecadastiiahsahipediinddeiauieialbad nila aibitiaiedalibiddisiatiien 1

REASONS FOR GRANTING THE WRIT .................... 4

I. THE NORTH CAROLINA SUPREME COURT

FAILED TO DISTINGUISH BETWEEN THE

WHOLLY SEPARATE QUESTIONS OF THE

AUTHORITY OF A GOVERNMENT TO REG-

ULATE AND THE CONSTITUTIONALITY OF

OTHERWISE VALID REGULATION ............... 4

Il. THE TOWN OF CHAPEL HILL SHOULD NOT

BE ALLOWED TO DEPRESS THE VALUE OF

DEIRDRE BATCH’S LAND TO REDUCE THE

EXPENSE OF THE TOWN’S FUTURE CON-

DEMNATION AND ITS ACTIONS VIOLATE

THIS COURT’S PRINCIPLE THAT THERE

MUST BE AN “ESSENTIAL NEXUS” BE-

TWEEN THE GOVERNMENT’S REQUIRE-

MENT AND THE GOVERNMENT’S

ERER TEED sccratsticvimiindtisbanernicatemmeettnnttcquanesseces 6

Il]. THIS CASE IS AN EXAMPLE OF THE CON-

DITION OF LOCAL LAND USE PRACTICE

THAT REQUIRES THIS COURT TO REITER-

ATE THE ADMONITION THAT WITHIN THE

SCHEME OF REGULATING PRIVATE AC-

TIONS PURSUANT TO POLICE POWERS THE

GOVERNMENT MUST RESPECT THE CON-

STITUTIONAL RIGHTS OF INDIVIDUAL

TIEN ciniecovccniicinceninnncsimtiannicsiiasitanenilabnidisdeditadi 12

CIE stntsiroviininschaicenbiipicienibetaatinlidlatpainmbiaiiniiae 19

TABLE OF AUTHORITIES

CASES: | Page

Agins v. City of Tiburon, 447 U.S. 255 (1980) ..... 8

Andrus v. Allard, 444 U.S. 51 (1979) ...............006 6

Armstrong v. United States, 364 U.S. 40 (1960) ... 6

Batch v. Town of Chapel Hill, 387 S.E.2d 655 (N.C.

REBT) ..recrceevernveecoosnunvenensunnemecesenseoneeunmipsenmmssanencabens 2,5,6,11

Batch v. Town of Chapel Hill, 376 S.E.2d 22 (N.C.

Ct. App. 1989), rev’d, 387 S.E.2d 655 (N.C.

QOGGD cnesesicsasvicicnerensniesiissaga alta A ne tidiscisbiine 9,15

Berman v. Parker, 348 U.S. 26 (1954) ..............00. 16

Chicago, B. & Q. R.Co. v. Chicago, 166 U.S. 226

CITT) ccticcisnnsetdeiasstibataiaiesnadanaeaih iieidliaidiiatiaiiaatss 1

Collis v. City of Bloomington, 246 N.W.2d 19 (Minn.

BOVE -iccsncensusreonstcinteniitiaeniasiiciatiaigatlltadaliantiaditudeie: 14

Department of Public Works And Buildings v. Ex-

change National Bank, 334 N.E.2d 810 (Ill.

BID. TUES cevcecsssemsecsneseesstenlivenssstitannehiilaitinene 7

First English Evangelical Lutheran Church of Glen-

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

(REBT) -eceversvcsvovesenssesentnnsuevepiesnedninpmensiniiens 1,4,17,18

Florida Rock Industries, Inc. v. United States, 791

Fe SOS GEOG, Gs Bee cernnteertcsemensssernioniens: 4

Florida Rock Industries, Inc. v. United States, 22

Env’'t Rep. Cas. (BNA) 1943 (Cl. Ct. 1985),

affd in part, vacated in part and remanded,

791 F.2d 898 (Fed. Cir. 1986) ...............ccccc0ee. 8

Hermanson v. Board of County Commissioners, 595

P.2d 694 (Colo. Ct. App. 1979) .............ccceeeee 7

J.E.D. Associates, Inc. v. Town of Atkinson, 432

Pe EB 7 ot Re 15

Joslin Mfg. Co. v. City of Providence, 262 U.S. 668

CED scscensvnsusssteiiimmamintisiaieitenbiniadaidied inde teariaas dice. 6

CRT TTD cevsccccessposnnnnenasiatiipnnaneoteigeliliimbaiesaiatimenilisiiietin 4,11

Table of Authorities Continued

Pose

Keystone Bituminous Coal Association v. De-

Benedictis, 480 U.S. 470 (1987) .............:000000e 8,17

MacDonald, Sommer & Frates v. County of Yolo,

477 U.S. 340, reh’g denied, 478 U.S. 1035

CIEE dictintnechicccdiigatibiaiiaiidisilbbiaa Le icigsed atsusgnt 19

Mills v. Rogers, 457 U.S. 291 (1982) .........cccccccseees 6

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

Be ED icieiniiccnctasicetinlaiaeieacibaiaetanihiatie 3,7-9,11,15,17

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

EE “sschinndiascidotienndeanintcendtitneataaiaiiatatelaniadiaiibleladecdic 3,7,17

Portsmouth Harbor Land & Hotel Co. v. United

OEE, TE ls Te ME ects enecnecctcctawescccsnees 11

Preseault v. Interstate Commerce Commission,

ceemeey: Gh cate ¢ e Slee GED stbicincdinnee 4,11

Pruneyard Shopping Center v. Robbins, 447 U.S. 74

(1980) ..... Sliaibaltldacassisauei eid edihelaeak hice leten ies 6

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

7 ok OE | es ee ee 19

Seawall Associates v. City of New York, 542 N.E.2d

1059, 544 N.Y.S.2d 542, cert. denied, _ U.S.

ae: lel UL Be &

United States v. Causby, 328 U.S. 256 (1946) ....... 3,11

United States v. Certain Lands In Truro, 476 F.

BP ES ee 7

United States v. Riverside Bayview Homes, 474 U.S.

IE sidilidiintiniis lela cecntcdddskibinncdestbiibiceadibidecens 8

Urbanizadora Versalles, Inc. v. Rivera Rios, 701

2 & 7 (9 Sh SRR One ere 7

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

Ef PERO SE Por ore 1

West Park Avenue, Inc. v. Township of Ocean, 224

PB ee RES eal 14

seein

iv

Table of Authorities Continued

Williamson —— Regional Planning Commission

v. Hamilton Bank of Johnson City, 473 U.S.

riiaiiiatniininbi baited cetieniiciitiaeanniinns

1902 Atlantic Limited v. Hudson, 574 F. Supp. 1381

I ao cacnmansnenenese

CONSTITUTIONAL PROVISIONS:

United States Constitution, Amend. V ..................

United States Constitution, Amend. XIV ..............

MISCELLANEOUS:

nc ccsinsensomaseneeenes

1 Anderson, American Law of Zoning, 774-75, §7.31

EE SE SID, cciisshensceccnsecsonienibsenserosere

Babcock, Forward to Ezxactions: A Controversial

New Source For Municipal Funds, 50 Law &

Contemp. Problems 1, 2 (1987) ...............000000

Mandelker & Berger, A Plea to Allow the Federal

Courts to Clarify the Law of Regulatory Tak-

ings, 42 Land Use Law & Zoning Digest 3

IEEE :nielinmnsdsidendebecinincsondidaldanniidisnne

9 A.L.R. 3d 304, §5(b) (1986 and 1988 Supp.) ......

Page

19

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-1627

DEIRDRE V. BATCH,

Petitioner,

Vv.

TOWN OF CHAPEL HILL, NORTH CAROLINA,

Respondent.

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is set forth in

the preceding motion for leave to file this brief.

SUMMARY OF THE REASONS

FOR GRANTING THE WRIT

This petition is the property owner’s last resort to

receive just compensation from the defendant town,

required by the United States Constitution when

property is taken for a public use.' If she fails before

1U.S. Const. amend. V, as incorporated by the U.S. Const.

amend. XIV. First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, 482 U.S. 304, 307 (1987); Webb's

Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980);

see Chicago, B. & Q. R.Co. v. Chicago, 166 U.S. 226, 239 (1897).

this Court, she loses for good because the North Car-

olina Supreme Court ordered the trial court to enter

summary judgment for the government.

This case is not about whether the government has

the authority to do what it did here. Rather, the

constitutional consequence to the government of prop-

erly exercising its authority is what is before the

Court. This case is about the level of protection af-

forded by the federal Constitution’s Just Compensa-

tion clause to an individual, Dr. Deirdre Batch, who

has been aggrieved by a town government. Yet the

court below ended the discussion after holding that

the town had authority to require the owner of land

not to build on a substantial portion of it because the

town may use it in the future as a highway. The

court expressly refused to answer the landowner’s

question of whether if so authorized the prohibition

nonetheless amounts to a taking under the federal

Constitution. The egregious failure of a lower court

to make the critical distinction between authority

questions and constitutional questions requires repair

by this Court.

The North Carolina Supreme Court, Batch v. Town

of Chapel Hill, 387 S.E.2d 655, 663 (N.C. 1990), ruled

that the town of Chapel Hill should have been granted

summary judgment because of the town council’s find-

ing that “‘Dr. Batch’s subdivision application failed to

take into account present and future road plans as

set forth in the town’s Thoroughfare Plan.” Jd. at

662. Whatever distinction respondent and the court

below attempt to draw with respect to a formal ded-

ication of a right-of-way, this case deals with a town

that exacted from a property owner a defacto high-

way easement without paying for what the property

owner has lost. And, ‘“‘[i]t is the owner’s loss, not the

taker’s gain, which is the measure of the value of the

property taken.”’ United States v. Causby, 328 U.S.

256, 261 (1946). The town’s proposed highway will

provide no access to Dr. Batch’s land, it damages the

scenic and residential character of her property, and

it is a highway the need for which is not created by

her proposed residential use. The prohibition of a use

of land to effectuate a legitimate public purpose when

the proposed land use has no “essential nexus’’ to

that public purpose should be redressed by the Con-

stitution when the prohibition is not accompanied by

recompense for the individual’s loss. Nollan v. Cali-

fornia Coastal Commission, 483 U.S. 825, 837 (1987).

Planning for and acquiring the necessary land and

capital to build adequate infrastructure to support our

cities and towns is an important goal in maintaining

society’s quality of life. But propositions that further

those ends must respect the property rights and other

liberties of individuals. Anything short of that proper

respect, as occurred here, is repugnant to the higher

considerations expressed in the Constitution. Dr.

Batch’s Constitutional rights must be confirmed and

this amicus respectfully requests the Court to grant

certiorari in order to send anew the message to all

governments that ‘‘a strong public desire to improve

the public condition is not enough to warrant achiev-

ing the desire by a shorter cut than the constitutional

way of paying for the change.’”’ Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 416 (1922).

REASONS FOR GRANTING THE WRIT

I. THE NORTH CAROLINA SUPREME COURT FAILED TO

DISTINGUISH BETWEEN THE WHOLLY SEPARATE

QUESTIONS OF THE AUTHORITY OF A GOVERNMENT

TO REGULATE AND THE CONSTITUTIONALITY OF

OTHERWISE VALID REGULATION

The plaintiff's challenge here is not a threat to

comprehensive planning nor is it an attack on the

government’s willingness and desire to provide for

the health, safety and welfare of its citizens. The

government is free to plan for future infrastructure

and provide for the public good. The Just Compen-

sation Clause ‘‘is designed ‘not to limit the govern-

mental interference with property rights per se, but

rather to secure compensation in the event of oth-

erwise proper interference amounting to a taking.’ ”’

Preseault v. Interstate Commerce Commission, __U.S.

__, 110 S. Ct. 914, 921 (1990\Xciting First English

Evangelical Lutheran Church v. County of Los An-

geles, 482 U.S. 304, 315 (1987)); Accord Kaiser Aetna

v. United States, 444 U.S. 164, 174 (1979\X‘“‘{T]here is

no question but that Congress could assure the public

a free right of access ... if it so chose. Whether a

statute or regulation that went so far amounted to

a ‘taking,’ however, is an entirely separate ques-

tion.’’); Florida Rock Industries, Inc. v. United States,

791 F.2d 893, 900 (Fed. Cir. 1986X‘‘the question has

got to be faced whether the impact of the regulation

here involved was sufficiently severe under the facts,

as undisputed or as found, [to effect a taking] and

the unchallengeable legality in this proceeding of the

regulatory act here involved, does not answer the

question or even lead towards an answer.”’’).

The North Carolina Supreme Court specifically con-

dones the town’s practice of prohibiting development

based on the property owner’s failure ‘‘to take into

account present and future road plans as set forth in

the town’s Thoroughfare Plan.” Batch v. Town of

Chapel Hill, 387 S.E.2d 655, 662 (N.C. 1990). The

court below then dismissed the property owner’s tak-

ings challenge and denies the existence of the court

of appeals’ takings analysis by saying only that the

property owner was rightfully prohibited from exer-

cising her right to build on her property. Since the

town has the authority to regulate in such a manner,

according to the court below, Dr. Batch can not re-

ceive any payment for the right-of-way for the high-

way that the town plans to place through her

property. See Jd. at 663-664. That analysis misses the

point. The town may prohibit construction activity so

as to preserve the land in a way that does not in-

terfere with its planned highway. But then the next

question is whether that prohibition of use amounts

to a taking, as was asked and answered in the af-

firmative by the trier of fact and the state court of

appeals. The state Supreme Court does not allow the

property owner to even ask the constitutional ques-

tion.”

In support of its conclusion that it need not address

the property owner’s constitutional claim because of

its conclusion that the town had authority to do what

* Whether the state trial court should have found that the

town’s actions in denying the plat amounted to a taking on a

summary judgment motion is yet another wholly separate ques-

tion. If a ruling on summary judgment was improper, then the

property owner should be allowed to offer proof of her consti-

tutional claim (preferably with more takings guidance from this

Court) at trial, which the state Supreme Court precludes the

owner from doing.

it did to Deirdre Batch, the North Carolina Supreme

Court stated that its “decision is based solely on ad-

equate and independent state grounds,” Batch, 387

S.E.2d at 664. This places the new federalism on its

head. Under state constitutional provisions, the state

courts are free to provide more protection to indi-

viduals than that guaranteed by the United States

Constitution. Joslin Mfg. Co. v. City of Providence,

262 U.S. 668, 676-677 (1923); Pruneyard Shopping

Center v. Robins, 447 U.S. 74, 81 (1980). But the

guarantees of the federal Constitution are the re-

quired minimum that all governments must afford to

individuals. Mills v. Rogers, 457 U.S. 291, 300 (1982).

This case concerns the extent to which the Just Com-

pensation Clause of the 5th Amendment to the United

States Constitution allows the government to inter-

fere with individual property rights. At minimum, the

state courts must give effect to the words and spirit

of our federal Constitution and this Court’s takings

jurisprudence.

II. THE TOWN OF CHAPEL HILL SHOULD NOT BE AL-

LOWED TO DEPRESS THE VALUE OF DEIRDRE

BATCH’S LAND TO REDUCE THE EXPENSE OF THE

TOWN’S FUTURE CONDEMNATION AND ITS AC-

TIONS VIOLATE THIS COURT’S PRINCIPLE THAT

THEPE MUST BE AN “ESSENTIAL NEXUS” BE-

TWEEN THE GOVERNMENT’S REQUIREMENT AND

THE GOVERNMENT’S INTERESTS

Fairness and justice dictate that the public should

pay the cost of infrastructure and the land upon which

it is placed rather than forcing some people alone to

bear those public burdens. See Andrus v. Allard, 444

U.S. 51, 65 (1979); Armstrong v. United States, 364

U.S. 40, 49 (1960). This is especially so in those sit-

uations where, as here, “‘there is heightened risk that

the purpose fof the government’s requirement] is

avoidance of the compensation requirement, rather

than the stated police power objective.” Nollan, 483

U.S. at 841. [T]he question at bottom is upon whom

the loss ... should fall.’”’ Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 416 (1922).

In the future when the town gets ready to build

the highway, if the town plans on offering some com-

pensation to the then existing property owners, its

actions now are still unconstitutional because govern-

ment’s land use decisions should not be used to de-

press the value of land to reduce the expense of

condemnation. Urbanizedora Versalles, Inc. v. Rivera

Rios, 701 F.2d 993 (1st Cir. 1983); United States v.

Certain Lands In Truro, 476 F. Supp. 1031, 1035-36

(D. Mass. 1979); Hermanson v. Board of County Com-

missioners, 595 P.2d 694 (Colo. Ct. App. 1979); De-

partment of Public Works And Buildings v. Exchange

National Bank, 334 N.E.2d 810 (ill. App. 1975); 1

Anderson, American Law of Zoning, 774-75, §7.31

(1986 and 1989 Supp.); 9 A.L.R. 3d 304, §5(b) (1986

and 1988 Supp.) and cases cited therein; Petition for

Certiorari at pgs. 16-17.

This case is very much like the Nollan case where

Justice Scalia admonished the government in its at-

tempt to compel a property owner to contribute to

the realization of an easement, even where the gov-

ernment ‘‘may well be right that [the easement] is a

good idea.’”’ The Court stated in Nollan that if the

government ‘“‘wants an easement across the Nollans’

property, it must pay for it.’’ Nollan, 483 U.S. at

842.

This Court has reiterated that a regulatory taking

occurs if either the regulation or government action

denies a property owner all or substantially all eco-

nomically viable use of the property or the regulation

or government act does not substantially advance a

legitimate government interest. Nollan, 483 U.S. at

834; Keystone Bituminous Coal Association v. De

Benedictis, 480 U.S. 470, 485 (1987); Agins v. City

of Tiburon, 447 U.S. 255, 260 (1980). The importance

of maintaining the distinction between these two tak-

ings tests should be self-evident. There are occasions

where a government’s actions substantially advance

legitimate government interests but nonetheless deny

a particular landowner all economically viable use of

the property.’ Likewise, there are situations, such as

in this case, where a government’s actions do not

deny a landowner all economically viable use of the

property but nonetheless do not substantially advance

a legitimate government interest. Nollan, 483 U.S.

825. In either situation, an analysis of both tests may

be necessary to protect individuals against those sit-

uations where it would be unfair to impose costs on

an individual that properly belong with the public. Of

course, in some cases the regulation will fail on both

counts. Seawall Associates v. City of New York, 542

8 See, e.g., 1902 Atlantic Limited v. Hudson, 574 F. Supp. 1381,

1404-05 (E.D. Va. 1983); Florida Rock Industries, Inc. v. United

States, 22 Env’t Rep. Cas. (BNA) 1943 (Cl. Ct. 1985), affd in

part, vacated in part and remanded, 791 F.2d 893 (Fed. Cir.

1986); Cf United States v. Riverside Bayview Homes, 474 U.S.

121, 127 (1985\While ruling on the Clean Water Act’s jurisdic-

tion to regulate certain wetlands, the Court noted that a prop-

erty owner can bring a takings claim in U.S. Claims Court if

a dredge or fill permit is applied for and denied and the ‘effect

of the denial is to prevent ‘economically viable’ use of the land

in question’).

N.E.2d 1059, 1065-66, 544 N.Y.S.2d 542, 548-49, cert.

denied, __U.S.__,, 110 S. Ct. 500 (1989).

The petitioner here does not allege that the town’s

actions denied her all economically viable use of her

property, but did assert from the beginning that the

town’s actions violated the second takings test. See

Batch v. Town of Chapel Hill, 376 S.E.2d 22, 29

(1989), rev’d, 387 S.E.2d 655 (1990). Therefore, the

Court need only look at whether the town’s require-

ment that she not develop a significant portion of her

property substantially advances, in the Constitutional

sense, the town’s legitimate interest in planning for

a highway.

To avoid the payment of just compensation, this

amicus believes this Court’s opinions stating that a

government’s actions must “substantially advance a

legitimate government interest’”’ mandates, in the tak-

ings context, a direct connection (the Court’s “‘essen-

tial nexus’’) between the government action and both

the burden the individual places on the community

(in this case, by her proposed land use) and the ben-

efits the individual will receive from the government

action (in this case, the benefit, if any, she will receive

from the highway). See Nollan, 483 U.S. at 837. This

direct connection requirement can be characterized as

a balancing test, but the Court has stated that it

requires more than the standards applied in due proc-

ess or equal protection cases. Nollan, 483 U.S. at 834

n.3. The traditional due process standard that says

“the State ‘could rationally have decided’ the measure

adopted might achieve the State’s objective’ is not

sufficient when analyzing government actions under

the Just Compensation clause. Jd.

10

The burden on the public produced by an individual

and the benefit a governmental requirement extends

to the individual must be part of the equation when

evaluating the takings implications of a governmental

act. It makes no sense to look at whether a particular

requirement substantially advances a legitimate gov-

ernment interest without considering the relationships

of the requirement and the government interest to

the individual. Without the specific individual and the

property interests he or she holds in the takings for-

mula, the purpose of the Just Compensation Clause

is destroyed.

While this amicus and many others hope for more

takings guidance from this Court, it is not necessary

in order to decide this case that the Court determine

precisely how far beyond traditional due process

standards the Just Compensation clause takes a

court’s review of governmental actions. For here,

there is no direct, indirect or any other connection

between the government action and either the burden

the individual places on the community or the benefits

received by the individual. Simply put, where the gov-

ernment requires a property owner to effectively

grant a highway right-of-way that has no connection

to the relevant burdens imposed on the community

by the proposed land use or will not benefit the pro-

posed land use, the government may preserve such

private property only by the constitutional way of

paying for the required land.

The property owner asserts that a dedication of

land, a formal process under state laws to transfer

private property to the government, was required by

the town. We agree with petitioner and believe a

dedication was required by Chapel Hill here. But even

1]

if a formal dedication was not imposed on Dr. Batch

as the North Carolina Supreme Court argues, Batch

v. Town of Chapel Hill, 387 S.E.2d at 660-61, con-

trary to the North Carolina Supreme Court’s opinion,

Id. at 663, a requirement, proper as it is, that a

property owner ‘“‘take future as well as present road

development into account when designing a subdivi-

sion’ is just as damaging to the property owner’s

interests as a requirement to formally dedicate the

land or grant an easement to the government for the

future road. In order to “take into account” future

road development the property owner must forego

building on the property where the road will be placed.

Regardless of what Chapel Hill or the court below

call it, their definitions are distinctions without a dif-

ference. Dr. Batch, in effect, must grant to the public

‘“‘a permanent and continuous right to pass to and

fro, so that the real property may continuously be

traversed, even though no particular individual is per-

mitted to station himself permanently upon the prem-

ises.”’ Nollan, 483 U.S. at 832. Moreover, citing to

Kaiser Aetna v. United States, 444 U.S. 164, 180

(1979), Justice O’Connor has said “ ‘[E]ven if the Gov-

ernment physically invades only an easement in prop-

erty, it must nonetheless pay just compensation.’ The

Government’s appropriation of other, lesser servi-

tudes may also impose a burden requiring payment

of just compensation. See United States v. Causby,

328 U.S. 256 (1946); Portsmvuth Harbor Land & Ho-

tel Co. v. United States, 260 U.S. 327 (1922). Pre-

seault v. Interstate Commerce Commission, —_— U.S.

__., 110 S. Ct. 914, 928 (1990\J. O’Connor concur-

ring).

12

Ill. THIS CASE IS AN EXAMPLE OF THE CONDITION

OF LOCAL LAND USE PRACTICE THAT REQUIRES

THIS COURT TO REITERATE THE ADMONITION

THAT WITHIN THE SCHEME OF REGULATING PRI-

VATE ACTIONS PURSUANT TO POLICE POWERS

THE GOVERNMENT MUST RESPECT THE CONSTI-

TUTIONAL RIGHTS OF INDIVIDUAL CITIZENS

Few developers and builders litigate when munici-

pal governments unfairly and unconstitutionally exact

fees and property that have little relation to the ser-

vices or benefits provided to a proposed project or

the burdens placed on the community by the project.

These entities, unlike Mr. and Mrs. Nollan, First Eng-

lish Evangelical Lutheran Church, and Dr. Deirdre

Batch in this case, are entrepreneurs and businesses

that simply find it not practical in almost all cases

to challenge unconstitutional government require-

ments. In a national symposium on development ex-

actions, Professor Babcock cited examples of abusive

exactions and followed with this discussion:

In each of these cases one can imagine the

initial reaction of the ‘‘extractee’’ - outrage.

In each case he surely went to his attorney

and asked two questions: (1) How long will

it take to get a final answer in court if we

challenge this condition?; and (2) How much

will it cost?

The answers probably were: (1) It will take

three to four years, with the possibility of

defeat; and (2) It will cost tens if not

hundreds of thousands of dollars.

By the time the developer approaches his

attorney, he has invested a large sum of

front-end money and has a great deal of in-

13

terest in obtaining a permit. Moreover, he

wants the permit immediately. He takes out

his pencil, does some calculating, and decides

to pay up. This example is a classic illustra-

tion of what I call “municipal leverage.”

Babcock, Foreword to Exactions: A Controversial New

Source For Municipal Funds, 50 Law & Contemp.

Problems 1, 2 (1987).

Also, most individual property owners can not af-

ford to hire attorneys and pursue land use litigation

and, therefore, like developers and builders, find it

impractical to challenge a government action that in-

versely condemns their property without compensa-

tion.

Loca! governments are often well aware of the

amount of time, money and other resources a builder

of a large development or of a single house has in-

vested in a project before the first plat application is

submitted. Local governments are usually free to ex-

ercise their municipal leverage to extract all types of

property interests and money from project applicants.

Occasionally, courts will scrutinize the exercise of mu-

nicipal leverage in ringing terms:

While in genera! subdivision regulations are

a valid exercise of the police power, made

necessary by the problems subdivisions create

- i.e., greater needs for municipal services

and facilities -, the possibility of arbitrariness

and unfairness in their application is none-

theless substantial: A municipality could use

dedication regulations to exact land or fees

from a subdivider far out of proportion to

the needs created by his subdivision in order

EE

14

to avoid imposing the burden of paying for

additional services on all citizens via taxation.

To tolerate this situation would be to allow

an otherwise acceptable exercise of police

power to become grand theft.

Collis v. City of Bloomington, 246 N.W.2d 19, 26

(Minn. 1976);

We have no doubt the municipality was

conscious of the illegality of what it did and

for that reason refrained from adopting an

ordinance, seeking instead to achieve its ends

through the guise of “‘voluntary’’ contribu-

tions with spurious ‘‘agreements’’ to make

them stick.

Defendants argue that even if the pay-

ments were illegally extorted, as we think

they were, nonetheless plaintiff ought not re-

cover ....

Defendants’ position boils down to the

proposition that one who buys with notice cf

municipal lawlessness thereby becomes bound

by it. Thus understood, defendants’ position

is frivolous.

West Park Ave., Inc. v. Township of Ocean, 224 A.2d

1, 4-5 (N.J. 1966);

Regulation H requires the dedication of

seven-and-one-half per cent of the total land

comprising the subdivision without any con-

sideration of the town’s need for the land.

Moreover, there is evidence, that was im-

properly excluded, which indicates that some

15

developers would be permitted to pay the

town the value of the land in lieu of its ded-

ication. This appears to us to be an out-and-

out plan of extortion....

J.E.D. Associates, Inc. v. Town of Atkinson, 432 A.2d

12, 14 (N.H. 1981).

The Just Compensation clause is one of the few

constraints on the public’s use of its regulatory pow-

ers over the use of an individual’s land. Its full ap-

plication is needed by property owners of all types

to provide some balance to weigh against a munici-

pality’s leverage.

As difficult as a takings challenge is for the prop-

erty owner, the Just Compensation clause should re-

main a fundamental crutch to support the property

owner in fighting the heavy-handed leverage brought

to the table by the municipality. The North Carolina

Supreme Court’s opinion below further deteriorates

this constitutional crutch and, by creative drafting,

does so without ever citing to this Court’s long line

of takings cases or even noting the North Carolina

Court of Appeals’ interpretation of this Court’s Nol-

lan decision, Batch v. Town of Chapel Hill, 376 S.E.2d

22, 34 (N.C. Ct. App. 1989), rev’d, 387 S.E.2d 655

(N.C. 1990).

This amicus does not mean to suggest that all local

governments - counties, cities and towns - are ruthless

and unreasonable in conducting the affairs of their

daily land use decision making processes. Many, if

not most, are reasonable and sincere in their efforts

to promote the public’s health, safety and welfare.

But while too many communities disrespect Consti-

tutional considerations for the sake of politica! or fi-

ee

16

nancial expediency, even if only one community

forsakes one of its citizen’s rights, the Constitutional

damage is done and we are all worse off because of

it. It is exactly in those situations that Constitutional

doctrine must be developed to protect individual

rights, including property rights. The courts must step

in to correct such damage and restore fairness and

justice.

This Court has eloquently stated that the legislature

is the domain for identifying the public’s interest in

legislation.

An attempt to define [the police power’s]

reach or trace its outer limits is fruitless, for

each case must turn on its own facts. ...

Subject to specific constitutional limitations,

when the legislature has spoken, the public

interest has been declared in terms well-nigh

conclusive. In such cases the legislature, not

the judiciary, is the main guardian of the

public needs to be served by social legislation

Berman v. Parker, 348 U.S. 26, 32 (1954). With equal

if not greater force, however, the judiciary must be

the guardian of individual and property rights. The

legislature defines the scope of the public’s interest

but when individual and property rights are destroyed

in the process, the courts should step in and define

when such destruction goes too far and insure that

adequate remedies exist to redress such loss. The

North Carolina Supreme Court has failed to exercise

its power of supervision over the conflict between the

public’s interest and Dr. Batch’s property rights as

protected by the United States Constitution.

17 |!

The Court has noted that

many of the provisions of the Constitution

are designed to limit the flexibility and free-

dom of governmental authorities, and the

Just Compensation Clause of the Fifth

Amendment is one of them. As Justice

Holmes aptly noted more than 50 years ago,

‘“‘a strong public desire to improve the public

condition is not enough to warrant achieving

the desire by a shorier cut than the consti-

tutional way of paying for the change.”’

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

at 416.

First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, 482 U.S. 304, 321- 22

(1987).

The Court has produced a long line of takings cases,

culminating in its 1987 trilogy of decisions that

changed several rules of the land use game, yet left

many questions still undecided. See, First Church, 482

U.S. 304; Nollan, 483 U.S. 825; and Keystone Bitu-

minous Coal Association v. DeBenedictis, 480 U.S.

470 (1987). However, a recent article by two of this

country’s foremost land use law scholars and prac-

titioners provides a forceful indictment of the practice

of leaving the development of takings jurisprudence

to state courts when it properly belongs within federal

court purview. The two authors admittedly have

widely varying opinions about many substantive as-

pects of takings law, citing to their published views

on the issue. Professor Daniel R. Mandelker is a self-

described ‘‘police power hawk,’’*and Michael M. Ber-

ger is a land use litigator who generally represents

18

property owners. And while they disagree on many

substantive ‘‘takings’”’ issues, they jointly state that

those substantive differences have not pre-

vented agreement on a fundamental, over-

riding, procedural issue: Who should be

involved in developing the substantive legal

precepts for regulatory takings?

The thesis is simple: If, as seems inescap-

able from the Supreme Court’s recent tak-

ings decisions, federal constitutional law will

control the outcome of these issues [citing to

First Church, 482 U.S. 304], then the ra-

tional conclusion is that the federal courts

should take a lead role in formulating the

controlling Fifth Amendment jurisprudence.

The alternative of leaving the exposition of

federal constitutional law to the vagaries of

50 state courts - each attempting to interpret

unclear pronouncements from the Supreme

Court ...- can yield only chaos. Even if the

Fifth Amendment’s protection is eventually

to be left to the state courts to implement,

it ought to await further development of sub-

stantive federal constitutional guidelines by

the federal courts. To date, the Supreme

Court’s decisions have been far too Delphic

to provide a solid ground on which the state

courts could be expected to act with any con-

sistency. -

Mandelker & Berger, A Plea to Allow the Federal

Courts to Clarify the Law of Regulatory Takings, 42

Land Use Law & Zoning Digest 3 (January 1990).

The context of the present case is a perfect vehicle

19

within which to elaborate on and reaffirm Just Com-

pensation Clause principles.‘

Local government and state court decisions, such

as those below, that vitiate federal Constitutional

guarantezs must be reversed. Property owners, like

Deirdre Batch and the tens of thousands of property

owners represented by this amicus, have nowhere else

to turn, and both the regulators and the regulated

await with hope for more United States Supreme

Court guidance on this critical issue within the law

of the use of privately held American land.

CONCLUSION

For the reasons stated above and in the Petition

for Certiorari, this Court is urged to issue a writ of

‘There is no ripeness question in this case since the town will

not allow development under any conceivable set of circumstan-

ces on that portion of the private land the town wants for its

highway and, therefore, the final, definitive position of the town

with respect to this issue has been offered the property owner.

See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S.

340, 351, reh’g denied, 478 U.S. 1035 (1986); Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172, 186-194 (1985). Even if the town could

conceive of some use of the property consistent with its desire

to preserve a corridor of land for its future highway, the allowed

use is irrelevant since the property owner alleges that the re-

quirement to preserve the highway corridor, irrespective of

whatever use is allowed, does not substantially advance a legit-

imate government interest.

As for other ripeness issues, the lower court decision is final

because there is no remaining litigation. See San Diego Gas &

Electric Co. v. City of San Diego, 450 U.S. 621, 632-633 (1981).

Also, the property owner followed the state’s inverse condem-

nation procedures for seeking just compensation in the state

courts. See Hamilton Bank, 473 U.S. at 194-197.

20

certiorari to review the judgment and opinion of the

North Carolina Supreme Court.

Respectfully Submitted,

WILLIAM H. ETHIER

National Housing Center

15th & M Streets, N.W.

Washington, D.C. 20005

(202) 822-0359

Counsel for Amicus

May 18, 1990