# Amicus Curiae Brief — Batch v. Town of Chapel Hill > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1392%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 931 ## Text L ED 4 ‘apy 1? 990 | No. 89-1627 YOSEPH F. SPANIOL, IR. CLERK PF supreme Court, us| * Bl In The Supreme Court of the United States October Term, 1989 DIEDRE V. BATCH, Petitioner, TOWN OF CHAPEL HILL, Respondent. y% wr On Petition for Writ of Certiorari to the Supreme Court of the State of North Carolina hp. a 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 Ap. a 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- FOR HA 4b Roecneine sb pebetecende ¥en ea etes- BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF THE PETITION oh Boe Bm cy ee) | reer INTERESTS OF AMICUS CURIAE SEALE EMESE GIP EVO Geo cece sccccscccccscnes SUMMARY OF THE ARGUMENT pe eer reer rrr er Tee TET Tete 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 oeeveeweeeee eee eens eevee eon eevee eeeeeee SSOP tae eeedcseesR ee SeseesstreeeaCece ee eee ee ii 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 ,% vr 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1392%3A4. Public record. Not legal advice.