Amicus Curiae Brief — Batch v. Town of Chapel Hill

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No. 89-1627 YOSEPH F. SPANIOL, IR.

CLERK

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In The

Supreme Court of the United States

October Term, 1989

DIEDRE V. BATCH,

Petitioner,

TOWN OF CHAPEL HILL,

Respondent.

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On Petition for Writ of Certiorari to the

Supreme Court of the State of North Carolina

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MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

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RONALD A. ZUMBRUN

*EDWARD J. CONNOR, JR.

R. S. RADFORD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED..................

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF PACIFIC LEGAL FOUNDATION IN

SUPPORT OF THE PETITION FOR WRIT OF CER-

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BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE PETITION

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INTERESTS OF AMICUS CURIAE

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SUMMARY OF THE ARGUMENT

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I. THIS COURT HAS JURISDICTION TO REVIEW

THE DECISION OF THE SUPREME COURT OF

NIOUITEE CAMIOUIMEA............c.cccccccccccccce:

Il. THE DECISION BELOW, IF ALLOWED TO

STAND, WILL RESULT IN A TAKING OF PETI-

TIONER’S PROPERTY WITHOUT JUST COM-

PENSATION

CONCLUSION

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TABLE OF AUTHORITIES CITED

CASES

Agins v. City of Tiburon, 447 U.S. 255 (1980)......... 9

Armstrong v. United States, 364 U.S. 40 (1960)....7, 13

First English Evangelical Lutheran Church of

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

0) ) Pe a ere 2

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ........ 8

Hodel v. Irving, 481 U.S. 704 (1987)..............0045. 2

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) .................. 2

Nollan v. California Coastal Commission,

483 US. 825 (HRGP) . ocx ska vcse seein eee van passim

Seawall Associates v. City of New York,

342 N.E.20 1059 (N.Y, TOGGE cs cccsenepscsvveres es 12

RULES AND REGULATIONS

Supreme Court Rule No. 10.1.(c)................05. 6, 8

MISCELLANEOUS

Note, Ohio v. Johnson: The Continuing Demise of

the Adequate and Independent State Ground

Rule, 57 U. Colo. L. Rev. 395 (1966) ............... 9

No. 89-1627

-.

—

In The

Supreme Court of the United States

October Term, 1989

>...

4

DIEDRE V. BATCH,

Petitioner,

TOWN OF CHAPEL HILL,

Respondent.

a.

—_—

On Petition for Writ of Certiorari to the

Supreme Court of the State of North Carolina

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MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF PACIFIC LEGAL FOUNDATION IN

SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

a.

This motion of Pacific Legal Foundation (PLF) for

leave to file the annexed brief amicus curiae is re-

spectfully submitted pursuant to Supreme Court Rule

No. 37. Consent to the filing of this brief has been granted

by counsel for petitioner, and has been lodged with the

Clerk of this Court. Consent has been withheld by coun-

sel for respondent, Town of Chapel Hill.

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in

matters affecting the public interest. PLF has over 20,000

contributors and supporters located throughout the coun-

try and maintains its principal office in Sacramento, Cali-

fornia. Policy is set by a Board of Trustees composed of

concerned citizens, the majority of whom are attorneys.

PLF’s Board evaluates the merits of any contemplated

legal action and authorizes such action only where the

Foundation’s position has broad support within the gen-

eral community. PLF’s Board has authorized the filing of

an amicus curiae brief in this matter.

Amicus seeks here to augment the argument in the

petition for writ of certiorari. It is believed that PLF’s

public policy perspective and litigation experience in

support of private property rights will provide an addi-

tional viewpoint with respect to the constitutional issues

presented. PLF has participated in numerous cases in-

volving issues arising under the Takings and Due Process

Clauses of the Fifth and Fourteenth Amendments to the

United States Constitution. Its attorneys were counsel of

record in Nollan v. California Coastal Commission,

483 U.S. 825 (1987), and PLF participated as amicus curiae

in Keystone Bituminous Coal Association v. DeBenedictis,

480 U.S. 470 (1987); Hodel v. Irving, 481 U.S. 704 (1987);

and First English Evangelical Lutheran Church of Glendale v.

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

The present case involves an egregious violation of

federal constitutional rights in the guise of local land use

regulation. The decision below rests on the principle that

government may prohibit the otherwise lawful develop-

ment of private property, if that property may someday

be condemned for public use. In effect, the value of

petitioner’s property has been permanently depressed in

order to minimize the government’s subsequent cost of

acquisition—if indeed the government ever decides to

acquire the property.

This amicus believes the opinion below is in direct

conflict with this Court’s decision in Nollan and other

regulatory takings cases. If allowed to stand, the opinion

below will constitute a serious setback for individual

rights by undermining the constitutional prohibition

against taking private property without just compensa-

tion. This result would abridge fundamental notions of

fairness and equity by unconscionably tipping the consti-

tutional balance in favor of the state’s regulatory power

over the rights of the individual.

For the foregoing reasons, Pacific Legal Foundation

requests that this motion for leave to file the annexed

brief amicus curiae be granted.

DATED: May 16, 1990.

Respectfully submitted,

RONALD A. ZUMBRUN

*EDwarD J. CONNOR, JR.

R. S. RADFORD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

By

Epwarp J. CONNOR, Jr.

Attorneys for Amicus Curiae,

Pacific Legal Foundation

No. 89-1627

sé.

of

In The

Supreme Court of the United States

October Term, 1989

sé.

vr

DIEDRE V. BATCH,

Petitioner,

TOWN OF CHAPEL HILL,

Respondent.

,%

—

On Petition for Writ of Certiorari to the

Supreme Court of the State of North Carolina

—_ *

—

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

i.

—

INTEREST OF AMICUS CURIAE

The interests of amicus are set forth in the preceding

motion for leave to file brief amicus curiae of Pacific

Legal Foundation.

,%

~ 2

STATEMENT OF THE CASE

This case involves a regulatory taking effected by the

Town of Chapel Hill (Town) through its subdivision

approval process. The subdivision application of peti-

tioner, Diedre V. Batch, was denied because she refused

to comply with certain conditions demanded by the

Town’s planning staff. One of these conditions was a

requirement that petitioner dedicate a right-of-way for a

proposed limited access highway across her property. The

Town’s desire to build the proposed Laurel Hill Parkway

was completely unrelated to petitioner’s proposed subdi-

vision. In fact, traffic from petitioner’s property would

not even have access to the proposed highway.

Upon the Town’s rejection of her permit application,

petitioner brought this action stating claims for, inter alia,

an unconstitutional taking of private property without

just compensation. The parkway dedication condition

was struck down by the trial court on a motion for

summary judgment. This portion of the ruling was af-

firmed by the North Carolina Court of Appeals.

The Supreme Court of North Carolina reversed. In

the decision below, the state’s highest court held that—

contrary to undisputed facts established at trial—the

Town had. not actually required a “dedication” of peti-

tioner’s property for the parkway right-of-way. Instead,

the court determined that the Town had required peti-

tioner to “incorporate the alignment of the parkway

right-of-way” into the design of her subdivision. Batch v.

Town of Chapel Hill, No. 121PA89, slip op. at 7 (N.C. Sup.

Ct. Jan. 18, 1990). In other words, the court found that

petitioner’s subdivision permit would be granted if she

agreed to forgo development of that part of her property

the Town might someday wish to acquire through con-

demnation. Asserting that the Town was empowered by

statute to attach such a condition to the approval of

petitioner’s subdivision permit, the state Supreme Court

remanded with instructions to dismiss petitioner’s feder-

al constitutional claims.

SUMMARY OF THE ARGUMENT

This amicus brief addresses the single issue of a

regulatory taking accomplished by the Town’s require-

ment that petitioner dedicate (or “reserve”) a right-of-

way easement. Despite the insistence of the court below

that its decision rests on independent and adequate state

grounds, this Court has jurisdiction to review the deci-

sion under Supreme Court Rule No. 10.1.(c).

The court below declined to review petitioner’s fed-

eral constitutional claims, asserting that the taking of

petitioner’s property was “authorized” by state law. This

holding conflicts with this Court’s ruling in Nollan v.

California Coastal Commission, requiring heightened scruti-

ny of land use regulations challenged under the Takings

Clause.

If heightened scrutiny had been applied, as required

by Nollan, it would be obvious that the Town’s subdivi-

sion exaction failed to substantially advance a legitimate

state interest, and deprived petitioner of economically

viab'e use of her land. Either result would establish a

violation of the Takings Clause under Nollan.

Finally, the decision below conflicts with the doctrine

repeatedly advanced by this Court, that land use regula-

tion may not force certain individuals alone to bear pub-

lic burdens which should rightfully be borne by the

public as a whole. By requiring petitioner to forgo the

development of her land to minimize the cost of subse-

quent acquisition by the gcvernment, the Town has vio-

lated the core premise of the Takings Clause as

enunciated by this Court in a long line of cases beginning

with Armstrong v. United States, 346 U.S. 40 (1960).

If the decision below is allowed to stand, petitioner

will not be the only party to suffer. This case will put

local governments throughout the United States on notice

that they may freely abridge individual rights protected

by the United States Constitution, so long as their highest

state court declines to review the violations.

.

—_

ARGUMENT

I

THIS COURT HAS JURISDICTION TO REVIEW

THE DECISION OF THE SUPREME COURT

OF NORTH CAROLINA

The court below asserts that its decision rests “solely

upon adequate and independent state grounds.” Batch v.

Town of Chapel Hill, slip op. at 17. This assertion is a

transparent attempt to mislead this Court concerning its

jurisdiction to review the decision below.

The Supreme Court of Nerth Carolina, having made

factual determinations that differ from the trial court's,

attempts to dispose of petitioner’s claims simply by

squaring the new “facts” with state statutory law: “We do

not find it necessary to review or decide any of plaintiff's

Batch, slip op. at 16. The court

below thus relies on the remarkable proposition that its

””

constitutional claims.

own state’s legislation takes precedence over the United

States Constitution in defining petitioner’s fundamental

rights.

It is unquestioned that a state Supreme Court is the

final authority in matters governed wholly by the laws of

its state. Moreover, when a state court’s decision rests

jointly upon state and federal grounds, the United States

Supreme Court lacks jurisdiction to review if the state

ground is “independent of the federal ground and ade-

quate to support the judgment.” Fox Film Corp. v. Muller,

296 U.S. 207, 210 (1935). However, when a state court

decision turns on an interpretation of federal constitu-

tional law that conflicts with previous opinions of the

United States Supreme Court, this Court’s jurisdiction to

review is established under Supreme Court Rule

No. 10.1.(c).

The present case raised substantive federal issues,

including a violation of the Takings Clause of the Fifth

Amendment, from its initial stage of litigation. These

issues were decided by the trial court and reviewed by

the North Carolina Court of Appeals. The takings issue

was extensively briefed by the parties, by this amicus,

and by other amici before the Supreme Court of North

Carolina. That court’s failure to address these issues can-

not alter the reality that the issues were before the court.

The decision below pretends to avoid addressing pe-

titioner’s federal constitutional rights, but in fact dis-

poses of them by denying their existence. As this case

clearly demonstrates, when a court fails to adjudicate an

individual’s rights, it deprives her of them.

Under the Takings Clause of the Fifth Amendment,

_ “a uniform national ‘floor’ of protection is established,

below which no . . . citizen may be made to stand. The

Constitution requires that all states rise at least to the

same minimum level of justice.” Note, Ohio v. Johnson: The

Continuing Demise of the Adequate and Independent State

Ground Rule, 57 U. Colo. L. Rev. 395, 408 (1986). The

decision below deprives petitioner of the minimum leve!

of justice required by the Constitution. Merely draping

this deprivation in the mantle of “independent state

grounds” cannot insulate the decision below from review

by this Court.

II

THE DECISION BELOW, IF ALLOWED TO STAND,

WILL RESULT IN A TAKING OF PETITIONER’S

PROPERTY WITHOUT JUST COMPENSATION

The court below places great emphasis on its finding

of facts different from those established before the trial

court. Irrespective of which set of facts pertain, however, the

Town’s actions plainly violate the Takings Clause of the

Fifth Amendment. This conclusion follows from a

straightforward application of current constitutional stan-

dards as expressed by this Court.

This Court has repeatedly stated that land use regu-

lations will effect a taking of private property if they fail

to “substantially advance legitimate state interests,” or if

they “den[y] an owner economically viable use” of prop-

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

at 834 (quoting Agins v. City of Tiburon, 447 U.S. 255, 260

(1980)). In Nollan, this Court reiterated the foregoing

threshold test, emphasizing that a heightened level of

10

judicial scrutiny must be applied in reviewing land use

regulations which are claimed to constitute a taking. Id.

at 834.

Unfortunately, this lesson was lost on the court be-

low. Far from subjecting the Town’s subdivision exaction

to the heightened scrutiny required by Nollan, the

North Carolina Supreme Court began and ended its in-

quiry with a simple assertion that the Town’s actions

were “authorized” by state law. Batch, slip op. at 15. This

degree of scrutiny—amounting to no scrutiny at all—is

grossly inadequate under the standards laid down by this

Court in Nollan.

Like the present case, Nollan dealt with restrictive

land use regulations imposed as a condition to the issu-

ance of a required permit. One essential lesson of Nollan

is that such conditions must be reasonably calculated to

relieve a public burden created by the proposed use of

the property in question. In the present case, however,

the Town’s desire to construct a parkway is totally unre-

lated to any burden created by petitioner’s proposed

subdivision. The subdivision’s streets will not directly

connect with the parkway, which is a limited access facili-

ty. Batch v. Town of Chapel Hill, 92 N.C. App. 601, 618,

376 S.E.2d 22, 32-33 (1989). The indirect, incremental traf-

fic flow attributable to the subdivision will be minimal.

Id. In short, there is no relationship whatever between the

need for the parkway and petitioner’s proposed use of

her land.

This Court has not defined the precise “fit” required

between a land use exaction and the burden created by

the development. See Nollan, 483 U.S. at 838. It hardly

11

matters what test is applied to petitioner’s case, however,

because it is clear that the parkway exaction, like the

permit condition in Nollan, “does not meet even the most

untailored standards.” Nollan, 483 U.S. at 838. The lack of

nexus between the parkway exaction and any public bur-

den created by petitioner’s proposed subdivision pro-

vides sufficient grounds for concluding—regardless of

the existence of statutory authority—that the Town’s ac-

tions failed to substantially advance a legitimate state

interest as that phrase was applied to land use regula-

tions by this Court in Nollan.

When the parkway exaction is subjected to the

heightened scrutiny required by Nollan, it is apparent that

its actual purpose is identical to that of the condition

demanded by the California Coastal Commission in the

latter case: “the obtaining of an easement to serve some

valid governmental purpose, but without payment of:

compensation.” Nollan, 483 U.S. at 837.

Regardless of whether the Town required an outright

dedication or a mere “reservation” of an undeveloped

right-of-way across petitioner’s property, the purpose of

this exaction was simply to reduce the Town’s ultimate

cost of acquiring land for the proposed parkway. Nollan

leaves no doubt that such an interest is not constitu-

tionally sufficient to justify taking property without com-

pensation. “Whatever may be the outer limits of

‘legitimate state interests’ in the takings and land use

context, this is not one of them.” Id.

If petitioner had not applied for a subdivision permit,

a demand by the Town for dedication of the parkway

12

easement would clearly have comprised a taking. Requir-

ing such a dedication as a permit condition under these

circumstances is “not a valid regulation of land use but

‘an out-and-out plan of extortion.’” Id.

Furthermore, regardless of which version of the

“facts” is accepted in this case, the Town’s exaction pa-

tently deprives petitioner of economically viable use of

her property. Two constitutionally protected property in-

terests are violated by the Town’s actions. The first is the

fee interest in that part of petitioner’s land required for

the right-of-way easement itself. The second protected

interest is petitioner’s right to develop the remaining

portion of any lots that are rendered unbuildable by

dedication or reservation of the easement. See Seawall

Associates v. City of New York, 542 N.E.2d 1059, 1067 (N.Y.

1989).

Whether the parkway easement is acquired by the

Town as an exaction now, or by formal condemnation

later, these property interests will be extinguished by

what amounts to a straightforward exercise of the gov-

ernment’s power of eminent domain. Any such exercise

requires just compensation as a matter of law, by the

plain language of the Takings Clause.

Even beyond its clear conflict with the standards laid

down by this Court in Nollan, the Town’s actions violate

the Takings Clause by requiring petitioner alone to bear

what should rightfully be a general public burden. In

addition to examining the nature of the state action em-

bodied in land use regulations, and its economic impact

on property owners, this Court has assigned unique sig-

nificance to this question of fundamental equity. “One of

13

the principal purposes of the Takings Clause is ‘to bar

Government from forcing some people alone to bear pub-

lic burdens which, in all fairness and justice, should be

borne by the public as a whole.’” Nollan, 483 U.S. at 835

n.4 (quoting Armstrong v. United States, 346 U.S. at 49).

The benefit sought by the Town’s subdivision exaction is

the acquisition of a right-of-way easement for a public

throughway. As previously noted, petitioner would de-

rive no special benefit from the proposed parkway; in-

deed, her property would not even have direct access to

it. Any presumed benefits of the parkway would accrue

to the community as a whole. It follows as a general

principle of constitutional law that the costs of construct-

ing the parkway, including the cost of acquiring the right-of-

way, must be financed out of general public revenues. The

Town is prohibited under the Fifth and Fourteenth

Amendments of the United States Constitution from re-

quiring individual property owners to bear the costs of

its land acquisition program.

The parkway exaction is an attempt to secure the

easement either at no cost by requiring the actual dedica-

tion of land, or at a reduced cost by prohibiting petitioner

from developing property that may one day be con-

demned. In either case, such regulatory abuses are clearly

prohibited by the Takings Clause as interpreted by this

Court in Nollan and other cases.

,

7

14

CONCLUSION

For the reasons stated above, it is respectfully sub-

mitted that the petition for writ of certiorari should be

granted.

DATED: May, 1990.

Respectfully submitted,

RoNALD A. ZUMBRUN

*EDWARD J. CONNOR, JR.

R. S. RADFORD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation