Amicus Curiae Brief — Presbytery of Seattle v. King County

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No. 90-298

In The

Supreme Court of the United States

October Term, 1990

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PRESBYTERY OF SEATTLE,

Petitioner,

KING COUNTY,

Respondent.

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On Petition For Writ Of Certiorari To

The Washington Supreme Court

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MOTION FOR LEAVE TO FILE AND BRIEF OF

AMICUS CURIAE, AMERICAN COLLEGE OF REAL

ESTATE LAWYERS, IN SUPPORT OF PETITIONER

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THEODORE C. Taus, Esquire*

Taus & Wiiams, P.A.

First Union Center

100 South Ashley Drive

Suite 2100

Post Office Box 3430

Tampa, Florida 33601

(813) 228-8000

*Counsel of Record for

the Amicus:

American Coliege of

Real Estate Lawyers

733 15th Street, NW,

Suite 700

Washington, D.C. 20005

(202) 393-1344

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2531

TABLE OF CONTENTS

Page

pe ee ee reer rrr rere ii

MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS

SG aS CL esd es aed pORA SARE AS Asa ae Koes 1

INTEREST OF AMICUS CURIAE .................. 3

OB ge ee 8) a ee t

EOL TTT TE CEET ETC CETTE TROCET TT Cee 5

I. THE WASHINGTON SUPREME COURT HAS

APPLIED A STANDARD FOR IDENTIFYING

AND COMPENSATING REGULATORY TAK-

INGS THAT DIRECTLY CONFLICTS WITH

ESTABLISHED CASE LAW, INCLUDING DECI-

SIONS OF THIS COURT, LOWER FEDERAL

COURTS, AND STATE COURTS ............... 5

A. The Washington Supreme Court has created a

definition of regulatory taking which conflicts

with this Court’s decisions and the decisions of

all other state and lower courts............. 5

B. The Washington Supreme Court has

restricted the ability of a property owner to

recover just compensation to such an extent

that it has undone this Court’s Constitu-

tionally mandated First English decision... 7

II. DEFINING THE RELEVANT PARCEL FOR TAK-

ING PURPOSES IS AN IMPORTANT QUESTION

OF FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT...... 11

Ee Lau 6 Cd ivesb v5i PEN ELSE KaEE KAN 15

ii

TABLE OF AUTHORITIES

Page

A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d

1483 (Lith Cir. 19GB)... ccc ccccecendaseseesssenss 6

Agins v. City of Tiburon, 447 U.S. 255 (1980) ....... 5, 6, 8

Allingham v. Seattle, 109 Wash. 2d 947, 749 P.2d 160

| ere rer ee 13, 14

American Savings & Loan Assn. v. County of Marin,

653 F.2d 364 (9th Cir. 1981)............-.-000 eee 13

Boston Chamber of Commerce v. Boston, 217 U.S. 189

CID1G) . . 0 ac ccccctdgieuankneen eel eeeneeeewEees as 7

Fifth Avenue Corp. v. Washington County, 282 Ore.

591, 581 P.2d 50 Wwe. 1978) .... 0... sciisceccsess 13

First English Evangelical Lutheran Church of Glendale

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

Georgia Outdoor Advertising v. City of Waynesville,

900 F.2d 783 (4th Cir. 1990)............-- ee eee eee 6

Hodel v. Irving, 481 U.S. 704 (1987)............-+-5-- 12

Jackson Court Condominiums, Inc. v. City of New

Orleans, 874 F.2d 1070 (5th Cir. 1989) .............. 6

Kaiser Aetna v. United States, 444 U.S. 164 (1979)..... 12

Keystone Bituminous Coal Assn. v. DeBenedictis, 480

US. SFO (HOGI) on nc csnxcncuccnuensaueueeamevesss 6, 12

Lake Nacimiento Ranch Company v. County of San

Luis Obispo, 841 F.2d 872 (9th Cir. 1987) ........... 6

Loretto v. Teleprompter Manhattan CATV Corpora-

tion, 458 U.S. 419 (1982) .... 2. ccc cece seen 14

MacDonald, Sommer, & Frates v. Yolo County, 478

U.S. 21085 (RUBE) «oo. ks cnccexuwsvenect vases noes cres 8

ete eee eee:

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TABLE OF AUTHORITIES - Continued

Nectow v. Cambridge, 277 U.S. 183 (1928) ........

Nollan v. California Coastal Commn., 483 U.S. 825

nach y 04 Fob se <u dou 4 unvxec¥ow «ais

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

se. ica lis as ooo bk euee 5, 6,

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

Preseault v. I.C.C., 494 U.S. __, 108 L.Ed 2d 1, 110

es cau daneaecuncedbusceccs

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

oo og y's ou dcaaedsdvasvas

Schad v. Borough of Mount Ephraim, 452 USS. 61

NE Ge Sg 0s 65 win dan de kk SERRA W da hee kas

Sederquist v. City of Tiburon, 765 F.2d 756 (9th Cir.

1984)

Twain Harte Assoc., Ltd. v. County of Tuolumne, 217

Cab App. 3d 71 (1990) ........ 0.0... cece cenese

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985)

Williamson County Regional Planning Commission v.

Hamilton Bank, 477 U.S. 340 (1986)............

tide Khe a we ee ee oe i 2 ir a a or es

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MOTION FOR LEAVE TO FILE

A BRIEF AS AMICUS CURIAE

The American College of Real Estate Lawyers

respectfully moves for leave to file the attached brief as

Amicus Curiae in support of the Petitioner. Consent to file

the brief has been obtained from counsel for Petitioner.

Consent from counsel for Respondent was requested but

refused.

As more fully explained in the attached brief, the

American College of Real Estate Lawyers believes that no

court other than this Court can change the decision of

this Court in First English Evangelical Lutheran Church of

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

if that court is the court of last resort of any state.

The interest of the American College of Real Estate

Lawyers lies in seeing that clear, fair, uniform, rational

rules exist for property owners affected by governmental

regulations involving constitutionally protected rights.

The decision below would inject a radical new test as to

when a regulatory taking entitling the property owner to

compensation occurs.

Because of the hundreds of thousands of applications

for the use of one’s property that occur each year

throughout the country that are constrained by govern-

mental regulations, it is imperative that the direction

given by First English not be permitted to be undermined

by the decision of any state or lower federal court. For

that reason, the American College of Real Estate Lawyers

believes that this Court’s review of the decision below is

essential and submits the attached brief in support of the

Petitioner.

Respectfully submitted,

THEopore C. Taus, Esquire*

Taus & Wituiams, P.A.

First Union Center

100 South Ashley Drive

Suite 2100

Post Office Box 3430

Tampa, FL 33602

(813) 228-8000

*Counsel of Record for

the Amicus:

American College Of

Real Estate Lawyers

733 15th Street, NW,

Suite 700

Washington, D.C. 20005

(202) 393-1344

BRIEF AS AMICUS CURIAE

&

INTEREST OF AMICUS CURIAE

The American College of Real Estate Lawyers is a

non-profit corporation organized for the purpose of gath-

ering together lawyers distinguished for their expertise

and high standards of professional and ethical conduct in

the practice of real estate law, in order, inter alia, to

improve and reform real estate law and practice and to

speak upon matters of interest and importance to real

estate law and practice. The College has over 700 mem-

bers from every state and the District of Columbia. They

represent owners, borrowers, lenders, purchasers, sellers,

developers, in short, those having reasonable investment-

backed expectations to use real property within constitu-

tional bounds. College members are required to have

concentrated their practice in real estate law for a period

of not less than ten years. Additional requirements estab-

lished by the Board of Governors include a demonstrated

willingness to devote time to improving real property

law, by writing, teaching or participating in organized

bar projects.

The College is interested in this case because it sub-

stantially impacts private property rights affected by gov-

ernment land use regulations. The decision below

establishes a “threshold inquiry” that eliminates most

takings claims and converts those claims into substantive

due process challenges, thus circumventing the rights

secured by the Court in First English Evangelical Lutheran

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

(1987). The Washington Supreme Court effectively again

relegates relief from excessive regulations to mere

invalidation of the offending measure.

Because of the profound constitutional issue

involved, as well as the important practical ramifications

for those persons specially concerned with landowners

being entitled to just compensation when land use regula-

tions deprive them of the economically viable use of their

land and where invalidation of the regulation cannot be

the exclusive remedy, the College supports Petitioner in

its Petition for Writ of Certiorari to the Washington

Supreme Court.

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SUMMARY OF ARGUMENT

The Washington Supreme Court in the case at bench

ignored established precedent of this Court when it for-

mulated a new standard for determining when regulation

of property effects a taking requiring just compensation.

That court held that a taking occurs only when the gov-

ernment regulation enhances a publicly owned right in

property. This narrowly drawn definition of a taking has

no basis in the decisions of this Court or any other court.

The Washington Supreme Court expressly stated that it is

only under those limited circumstances that a property

owner would be entitled to compensation. Despite the

fact that this Court in First English expressly held that the

Fifth Amendment requires that regulatory takings be

compensated, the Washington Supreme Court effectively

held that a regulatory taking (as that term is defined by

this Court and every other federal and state court) is a

violation of substantive due process that can only be

remedied by invalidation of the regulation. If this Court

allows that decision to stand, without granting the Peti-

tion for Writ of Certiorari and overturning that decision,

such may, and probably will, be perceived as tacit

approval of the Washington Supreme Court’s analysis.

The Washington Supreme Court also incorrectly

identified the relevant parcel for takings purposes by

looking at the entire 4.5 acres owned by the Presbytery,

rather than only that segment of the property that is

subject to regulation. The Washington Supreme Court’s

holding that the parcel must be viewed in its entirety is in

direct conflict with decisions of this Court, federal courts,

and state courts. The issue of the relevant parcel for

takings purposes is an issue that requires resolution by

this Court.

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ARGUMENT

I. THE WASHINGTON SUPREME COURT HAS

APPLIED A STANDARD FOR IDENTIFYING AND

COMPENSATING REGULATORY TAKINGS THAT

DIRECTLY CONFLICTS WITH ESTABLISHED

CASE LAW, INCLUDING DECISIONS OF THIS

COURT, LOWER FEDERAL COURTS, AND STATE

COURTS.

A. The Washington Supreme Court has created a

definition of regulatory taking which conflicts

with this Court’s decisions and the decisions of

all other state and lower courts.

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

this Court held that a regulation as applied to a particular

property may effect a taking if it does not substantially

advance legitimate state interests (citing Nectow v. Cam-

bridge, 277 U.S. 183, 188 (1928)), or if it “denies an owner

economically viable use of his land” (citing Penn Central

Transp. Co. v. New York City, 438 U.S. 104, 138, n. 36

(1978)).1 This simple definition of a Fifth Amendment

regulatory taking includes within it both regulations

which strip property of value and regulations which fail a

substantive due process test by not substantially advanc-

ing legitimate state interests. This simple, all-inclusive

definition has repeatedly been used by this Court. See

Nollan v. California Coastal Commn., 483 U.S. 825, 834

(1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480

U.S. 470, 485 (1987); United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 126 (1985); Schad v. Borough of

Mount Ephraim, 452 U.S. 61, 68 (1981).

Whether the application of a regulation results in a

taking is a highly ad hoc unde: ‘aking and not subject to

analysis by a set formula. Penn Central, 438 U.S. at 124. It

is “a question of degree — and therefore cannot be dis-

posed of by general propositions.” Pennsylvania Coal Co.

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

Equally clear, this Court has never defined a taking

based on whether a benefit accrued to the government. To

the contrary, as this Court long ago held: “ . . . The

1 Many federal circuit courts have expressly followed the

Agins approach, demonstrating the continuing efficacy of this

Court’s Agins description of a taking: Lake Nacimiento Ranch

Company v. County of San Luis Obispo, 841 F.2d 872, 877 (9th Cir.

1987) (as-applied taking claim dismissed on ripeness grounds,

facial claim analyzed under Agins); Sederquist v. City of Tiburon,

765 F.2d 756, 761 (9th Cir. 1984); A.A. Profiles, Inc. v. City of Ft.

Lauderdale, 850 F.2d 1483, 1486 (11th Cir. 1988); Jackson Court

Condominiums, Inc. v. City of New Orleans, 874 F.2d 1070, 1080

(Sth Cir. 1989); Georgia Outdoor Advertising v. City of Waynes-

ville, 900 F.2d 783, 787 (4th Cir. 1990).

questi »n is, What has the owner lost? not, What has the

taker gained?” Boston Chamber of Commerce v. Boston, 217

U.S. 189, 195 (1910).

Nevertheless, the Washington Supreme Court in the

case at bench? created a new definition of a regulatory

taking which conflicts with this Court’s decisions and the

decisions of all other state and lower federal courts by

announcing a wholly different test: a taking occurs only if

the regulation “ . . . actually enhances a publicly owned

right in property.” Pet.App. A-9. Were Washington’s new

and aberrant test to stand, virtually no regulatory

infringement upon the rights of property owners would

be a taking. Under the new Washington test, if “all” the

government is doing is preventing harm (rather than

enhancing its rights in specific property already owned

by the government), then no taking would occur.

B. The Washington Supreme Court has restricted

the ability of a property owner to recover just

compensation to such an extent that it has

undone this Court’s Constitutionally mandated

First English decision.

The United States Constitution, expressly and as

interpreted by this Court, provides the remedy of com-

pensation for regulatory takings. Prior to this Court’s

opinion in First English Evangelical Lutheran Church of

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

2 References to Presbytery of Seattle v. King County will be

to the version printed in Appendix “A” of Petitioner’s Petition

for Writ of Certiorari in this Court and will be denominated as

follows: Pet.App. A-#.

was confusion as to whether the Fifth Amendment admo-

nition —- “nor shall property be taken without just com-

pensation” — applied to takings of property that resulted

from regulation of property. Four times prior to First

English, this Court faced the issue of compensation of

regulatory takings and, in each case, did not reach the

issue. MacDonald, Sommer, & Frates v. Yolo County, 478 U.S.

1035 (1986); Williamson County Regional Planning Commis-

sion v. Hamilton Bank, 477 U.S. 340 (1986); San Diego Gas &

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

In San Diego Gas & Electric Co. v. City of San Diego, 450

U.S. 621, 636 (1981) (Brennan, J., dissenting) Justice Bren-

nan, in dissent, formulated the standard that was eventu-

ally adopted by this Court in First English. In First

English, this Court ended the confusion when it held that

the standard adopted by the California Supreme Court,

that regulatory takings could only be remedied by

invalidation and not by compensation, violated the Fifth

Amendment.

Earlier this year, in Preseault v. I.C.C., 494 U.S. ___

108 L.Ed.2d 1, 110 S. Ct. ___ (1990), this Court confirmed

its First English conclusion that the just compensation

remedy is not only required by the Constitution, but also

that it must be first availed before any challenge may be

made that the regulation is otherwise unconstitutional.

The decision below virtually repeals the compensatory

remedy which this Court concluded was “necessarily

implicate[d]” by the Fifth Amendment in First English.

After decades of uncertainty about whether a regula-

tion which goes too far requires compensation, this Court

clearly settled the issue in First English. In the case at

bench, the Washington Supreme Court adopted a stan-

dard whose effect is the same as that of the California

standard expressly rejected by this Court. The Washing-

ton Supreme Court, seemingly defiantly, effectively held

that compensation is to be denied under almost every

imaginable scenario where governmental regulation

impacts the use of property to the point that the owner is

entitled under First English to just compensation for the ~

deprivation, albeit temporary. In the words of the Wash-

ington Supreme Court:

If the regulation is not aimed at the legitimate

public purpose, or uses a means which does not

tend to achieve it, or if it unduly oppresses the

landowner, then the ordinance will be struck

down as violative of due process and the rem-

edy is invalidation of the regulation.

Pet.App. A-12.

Subparagraph (c) of Rule 10 of the Rules of this Court

could not have envisioned a more obvious conflict

between applicable decisions of this Court and the deci-

sion of the Washington Supreme Court herein sought to

be reviewed.

As if the question of the constitutionally required

remedy were still an open question and First English did

not exist, the Washington Supreme Court speculates:

“Invalidation of the ordinance (instead of compensation)

also avoids intimidating the legislative body... . ”

Pet.App. A-12. In First English, this Court rejected such a

rationale for refusing compensation:

We, of course, are not unmindful of these

considerations, but they must be evaluated in

10

the light of the command of the Just Compensa-

tion Clause of the Fifth Amendment.

482 U.S. at 317.

We realize that even our present holding will

undoubtedly lessen to some extent the freedom

and flexibility of land-use planners and govern-

ing bodies of municipal corporations when

enacting land-use regulations. But such conse-

quences necessarily flow from any decision

upholding a claim of constitutional rights; many

of the provisions of the Constitution are

designed to limit the flexibility and freedom of

governmental authorities, and the Just Compen-

sation Clause of the Fifth Amendment is one of

them.

482 U.S. at 321.

This Court’s review is absolutely essential to avoid

the judicial chaos, both inherent and predictable, if the

Washington Supreme Court’s radically different test is

allowed to stand. Surely, Justice Stevens had a different

conflagration in mind, when, in dissent in First English,

he opined that the majority’s decision was a “loose can-

non” that would ignite a “litigation explosion.” The

Washington Supreme Court’s decision below will, if not

overturned, create such an explosion, rather than the

settled framework for analysis left in the wake of First

English. Washington has announced no mere “nuisance

exception” to the general rule that just compensation is

required when the government regulates the value out of

private property. “The nuisance exception . . . is not

coterminous with the police power itself.” Penn Central,

438 U.S. at 145. The Fifth Amendment “is designed not to

limit the governmental interference with property rights

per se, but rather to secure compensation in the event of

11

otherwise proper interference amounting to a taking.”

First English, 482 U.S. at 315.

Even if the potential for confusion and wasteful liti-

gation as a result of the decision below were not so

obvious for the country as a whole, at least the citizens of

Washington are entitled to the benefit of this Court’s

decisions protecting their constitutional rights. They are

not under a separate umbrella devoid of either federalism

or the supremacy clause.

If the decision below is allowed to stand, other state

and federal courts would be pressed to adopt its rationale

and many courts may do so, notwithstanding First

English, thus creating results for property owners

throughout the nation inconsistent with the mandate of

First English. Rightly or wrongly, they would view a

denial of certiorari as tacit approval by the court, or at

least a conclusion by this Court that the decision below

can co-exist with First English.

II. DEFINING THE RELEVANT PARCEL FOR TAK-

ING PURPOSES IS AN IMPORTANT QUESTION

OF FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT

In the case at bench, the Washington Supreme Court

held that the relevant unit of property for takings pur-

poses was a “parcel of regulated property.” 787 P.2d at

914. The Court stated that the takings analysis must view

the parcel in its “entirety.” Id. at 915. The Washington

court views the entire parcel as the 4.5 acres that are

under the single ownership of the Presbytery. The Court

ignores the “ad hoc factual” nature of takings analysis,

12

which is reflected in the decisions of this Court, lower

federal courts, and state courts.

The Washington court relies heavily on this Court’s

decisions in Keystone and Penn Central. Admittedly, those

decisions expressed a takings standard that required con-

sideration of the parcel as a whole; however, other deci-

sions of this Court have held that the denial of just one

property right may constitute a taking. In Hodel v. Irving,

481 U.S. 704, 718 (1987), this Court held that the denial of

a single strand of property interest (deprivation of right

to devise property) was a taking. Similarly, in Kaiser Aetna

v. United States, 444 U.S. 164 (1979), this Court held that

the denial of the right to exclude was sufficient to consti-

tute a taking. What these cases demonstrate is that differ-

ent circumstances require different analyses.

The wetlands regulations at issue in this case forbid

the development of specifically designated property. The

complete prohibition of development of specific property,

despite the size of that property, is a taking. This Court’s

decisions in Penn Central and Keystone support a finding

of a taking in the case at bench. In Penn Central, this

Court defined the entire parcel as the entire area of

regulated property, which was the city tax block desig-

nated as a historic site (the Grand Central Terminai). In

Keystone, this Court found no taking by comparing the

amount of coal that could not be used with any “reason-

able unit” of the plaintiffs’ coal mining operations. Again,

it was the coal mining operations generally that were

being regulated. In this case, if we compare the amount

taken with the area regulated, we find that no develop-

ment is permitted on the entire area being regulated — the

wetlands.

: i

13

The decision below conflicts with decisions of other

state and federal courts. Clearly, if the frontage of a large

tract, or corner of a large tract, or that portion of a tract

which made the remainder valuable were over-regulated

so as to result in a taking requiring just compensation, the

Washington Supreme Court’s newly adopted entirety the-

ory compels a holding that neither a taking nor depriva-

tion of the portion regulated occurred, nor that any

compensation would be available. By contrast, other

courts have held that regulatory stultification of part of a

larger tract of land can be a taking which requires com-

pensation. Fifth Avenue Corp. v. Washington County, 282

Ore. 591, 581 P.2d 50 (Ore. 1978) (part of property zoned

for transit station and greenbelt); Twain Harte Assoc., Ltd.

v. County of Tuolumne, 217 Cal.App. 3d 71 (1990) (part of

property zoned open space); American Savings & Loan

Assn. v. County of Marin, 653 F.2d 364 (9th Cir. 1981) (part

of property zoned for density too low to permit economic

use).

The Washington Supreme Court itself has addressed

this issue. In Allingham v. Seattle, 109 Wash. 2d 947, 749

P.2d 160 (1988), the applicable portion of which it

expressly overrules in this case, the Washington Supreme

Court found a taking where a Seattle greenbelt ordinance

affected only a portion of the owner’s parcel. The Wash-

ington court in Allingham expressly rejected the argument

that because the regulation only affi ted a portion of the

owner’s property it was not a taking:

According to this argument, the City should be

allowed to regulate away all rights of ownership

to a portion of a person’s property so long as

some part of the property remains usable. We

find this argument unpersuasive. If the City

14

were to take a portion of certain properties for

the purpose of building a road, clearly we

would hold that the city must pay for the land

so taken. Likewise where, as here, the City takes

a portion of certain properties for the purpose of

preserving greenbelts, the City must pay for the

land taken. To permit the City to accomplish the

same purpose under the guise of a zoning regu-

lation would be inequitable and would consti-

tute an unconstitutional taking of private

property without just compensation.

109 Wash. 2d 947, 749 P.2d at 163.

The Washington court’s analogy in Allingham to

physical invasion is correct. The regulation at issue here

deprives the property owner of the use of its property in

the same manner that a physical invasion of its property

would deprive it of that use. This Court has held that a

physical invasion, no matter the size, is a taking. See

Loretta v. Teleprompter Manhattan CATV Corporation, 458

U.S. 419, 435-36 (1982).

The Washington Supreme Court’s new entirety thesis

is inconsistent with either logic or prior decisions of this

Court. Simply stated, if Washington had to condemn by

eminent domain the portion of the Presbytery’s property

it would be required to pay just compensation for the

property taken.

Accordingly, the College respectfully suggests to the

Court that the relevant parcel for takings purposes is,

indeed, a very important question of federal law that

should be settled by the Court so that the post-First

English and Nollan cases that are being determined in

both the state and lower federal courts have guidance so

15

as to provide a consistently fair doctrine in keeping with

prior precedent of this Court.

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CONCLUSION

For the foregoing reasons, the American College of

Real Estate Lawyers respectfully urges this Court to grant

the Petition for Writ of Certiorari and reverse the decision

of the Washington Supreme Court.

DATED: September 17, 1990

Respectfully submitted,

THEODORE C. Taus, EsQuire*

Taus & Wi uiams, P.A.

First Union Center

100 South Ashley Drive

Suite 2100

Post Office Box 3430

Tampa, Florida 33601

(813) 228-8000

*Counsel of Record for

the Amicus:

American College of

Real Estate Lawyers

733 15th Street, NW,

Suite 700

Washington, D.C. 20005

(202) 393-1344