# Opposition Brief — Lyman v. City of Honolulu

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 954

## Text

FILED

MAR 8 199)
: 7. = tlrecereeeeeneecerrrm E CLERK
No. 90-1078
In Che

Supreme Court Of Che United States

OCTOBER TERM, 1990

RICHARD LYMAN, JR., MATSUO TAKABUKI,
MYRON B. THOMPSON, WILLIAM S. RICHARDSON,
HENRY H. PETERS, JR.,

Petitioners,
V.

CITY AND COUNTY OF HONOLULU,
A Municipal Corporation,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

H. BISSELL CAREY, III RONA: )B. MUN

Counsel of Record Corporation Counsel
STEVEN L. RICHARDS DONNA M. WOO
DWIGHT H. MERRIAM Department of

ERIC D. DANIELS Corporation Counsel
ROBINSON & COLE City and County of Honolulu
One Commercial Plaza Honolulu, Hawaii 96813
Hartford, Connecticut 06103 (808) 527-5688

(203) 275-8200

Attorneys for Respondent

QUESTIONS PRESENTED’

1. Did the courts below err in concluding that a cause
of action for inequitable precondemnation activities requires
proof of no economically viable use?

2. Did the court of appeals err in concluding that ‘‘uncon-
stitutional exaction”’ was not raised as a separate claim before
the trial court?

3. Did the courts below err in concluding that certain of
Petitioners’ claims were not ripe for federal adjudication?

bm,
hese are the true questions presented, absent the hyperbole and mis-
statements contained in Petitioners’ questions presented.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ..... he A Re oan ae i
TABLES GF AUTHORS ee. oe ss eee eee iv
STATEMENT OF THE CASE ........ Protein ty ae
STATEMENT OF FACTS ............. ase 4
A. The Subject Property: Queen’s Beach......... 4
B. Land Use Plans Applicable To Queen’s Beach .. 5

C. Zoning Ordinances Applicable To
Gets OOO... .. 62. ole oe
D. Efforts To Develop Queen’s Beach . . os 8
E. The Alleged Unconstitutional Conduct ....... 10

REASONS WHY THE WRIT SHOULD NOT
ee CAO 5. sae pe eee ae 12

I

II.

. THE COURTS BELOW PROPERLY

CONCLUDED THAT A CAUSE OF ACTION
FOR INEQUITABLE PRECONDEMNATION
ACTIVITIES REQUIRES PROOF OF

NO ECONOMICALLY VIABLE USE iy

THE SO-CALLED NOLLAN CLAIM WAS
NOT RAISED AS A SEPARATE CLAIM
BEFORE THE TRIAL COURT ... | l

qn

il

TABLE OF CONTENTS (continued)
Page

Hil. THRE COURTS BELOW PROPERLY
CONCLUDED THAT CERTAIN OF
BISHOP'S CLAIMS ARE NOT RIPE FOR
FEDERAL ADJUDICATION 19

A. Bishop Has Never Secured A Final Decision
Krom The City Applying Preservation
Zoning ‘To Queen's Beach Nor Has Bishop
K ver Sought A Variance From
Preservation Zoning 19

B. The Futility Exception Does Not Excuse
Bishop From Meeting The Final Decision
Requirement 22

C. Bishop Has Failed To Demonstrate That
There Is No Adequate State Procedure

For Securing Just Compensation 23

CONCLUSION 26

il

TABLE OF AUTHORITIES
Cases: Pages
Agins v. City of Tiburon,
447 U.S. 255 (1980). . | , 12,14

Am. Savings & Loan Ass'n v. County of Marin,
653 F.2d 364 (9th Cir. 1981) | 22

Austin v. City and County of Honolulu,
840 F.2d 678 (9th Cir.), cert. denied,

488 U.S. 852 (1988)... 20, 21, 23, 24
Benenson v. United States,

548 F.2d 939 (Ct. Cl. 1977) 13
City and County of Honolulu v. Chun,

54 Haw. 287, 506 P.2d 780 (1973). . 25

City of St. Louis v. Praprotnik,
485 U.S. 112 (1988) 1]

Commissioner v. McCoy,
484 US. 3, reh'g denied,

484 U.S. 982 (1987) 5
Drakes Bay Land Co. v. United States,
424 F.2d 574 (Ct. Cl. 1970) 13

First English Evangelical Lutheran Church v.
County of Los Angeles,
482 U.S. 304 (1987) 17

Foster v. City of Detroit,
254 F. Supp. 655 (E.D. Mich. 1966), aff'd,
405 F.2d 138 (6th Cir. 1968) 13

Herrington v. Sonoma County,
834 F.2d 1488 (9th Cir. 1987), amended,
857 F.2d 567 (9th Cir. 1988), cert. denied.

489 U.S. 1090 (1989) 20, 22, 23, 24
Hoehne v. County of San Benito,
870 F.2d 529 (9th Cir. 1989) 20, 23
iv

TABLE OF AUTHORITIES (continued)

Cases:

Honolulu Memorial Park, Inc. v. City and
County of Honolulu,
50 Haw. 189, 436 P.2d 207 (1967)

Kaiser Aetna v. United States,
444 US. 164 (1979)

Kaiser Dev. Co. v. City and County of Honolulu,
649 F. Supp. 926 (D. Haw. 1986)

Kaiser Dev. Co. v. City and County of Honolulu,
898 F.2d 112 (9th Cir. 1990)

Kaiser Dev. Co. v. City and County of Honolulu,
913 F.2d 573 (9th Cir. 1990)
(per curiam)

Kinzli v. City of Santa Cruz,
818 F.2d 1449, modified,
830 F.2d 968 (9th Cir. 1987),
cert. denied, 484 U.S. 1043 (1988) 20, 21

Kirby Forest Industries, Inc. v. United States,
467 U.S. 1 (1984)

Lai v. City and County of Honolulu,
749 F.2d 588 (9th Cir), cert. denied,

488 US. 994 (1988) 20,

Lake Nacimiento Ranch Co. v. County of
San Luis Obispo,
841 F.2d 872 (9th Cir.), cert. denied,
488 U.S. 827 (1988) 20, 21

MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340 (1986)

Pages

14,

15

passim

passim

passim

, 2m

» aes

16,

21,

23

14

24

20

TABLE OF AUTHORITIES (continued)

Cases: Pages

Martino v. Santa Clara Valley Water Dist.,
703 F.2d 1141 (9th Cir.), cert. denied,

464 US. 847 (1983) ......... 2, 13, 14, 16, 22
Monell v. Dep't of Social Services,

436 U.S. 658 (1978)....... 0... | 1]
Nollan v. California Coastal Comm'n,

483 U.S. 825 (1987)... _ passim

Nuuanu Neighborhood Ass'n v.
Dep't of Land Utilization,

63 Haw. 444, 630 P.2d 107 (1981) 6, 7.9
Parks v. Watson,

716 F.2d 646 (9th Cir. 1983) 16
Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) 1]

Penn Central Transp. Co. v. New York City,
438 U.S. 104, reh'g denied,
439 U.S. 883 (1978) 14

Richmond Elks Hall Ass'n v.
Richmond Redev. Agency,

561 F.2d 1327 (9th Cir. 1977) 11, 13, 14
Roberts v. College of the Desert,
870 F.2d 1411 (9th Cir. 1988) 4

Shelter Creek Dev. Corp. v. City of Oxnard,
838 F.2d 375 (9th Cir.), cert. denied,

488 U.S. 851 (1988). 20, 21
Singleton v. Wulff,
428 U.S. 106 (1976) 5

Williamson County Regional Planning Comm'n
v. Hamilton Bank,
473 U.S. 172 (1985) passim

vl

TABLE OF AUTHORITIES (continued)

Federal Constitutional Provisions: Pages
U.S. Const. art. 1, § 10, cl. 1 Plas
U.S. Const. amend. V 1, 2, 24
U.S. Const. amend. XIV 1,2

Federal Statutes:

42 USC. § 1983 (1982) 1,11
Rules of the Supreme Court:

Rule 10 15
Rule 14.5 26
Federal Rules of Civil Procedure:

Rule 54(b) 2
State Statutes:

Haw. Rev. Stat. § 46-6 (1985) 18
Haw. Rev. Stat. § 101-3 (1985) 24
Ordinances, Resolutions and Charter Provisions:

City and County of Honolulu Ordinance No. 2443
(May 7, 1964) 5

City and County of Honolulu Ordinance No. 2473
(July 23, 1964)

|

City and County of Honolulu Ordinance No. 2808
(June 8, 1966) 5

Vil

TABLE OF AUTHORITIES (continued)
Ordinances, Resolutions and Charter Provisions:

City and County of Honolulu Ordinance No. 4517
(Ceteter 25, 1975) .............. Nee

City and County of Honolulu Ordinance No. 4621
(August 17, 197G6)..........

City and County of Honolulu Ordinance No. 83-6
(May 10, 1983) ... e |

City and County of Honolulu Ordinance No. 84-5
(March 1, 1984)... ...........

City and County of Honolulu Resolution No. 238
(February 2, 1977) ...

City and County of Honolulu Resolution No. 82-188

(December 23, 1982) .

1959 Charter of the City and County of Honolulu
§$ 5-512

Pages

o, 7

18

or

1973 Rev. Charter of the City and County of Honolulu

§ 5-407

1973 Rev. Charter of the City and County of Honolulu

$ 5-408

1973 Rev. Charter of the City and County of Honolulu

§ 5-412 ..

1973 Rev. Charter of the City and County of Honolulu

§ 6-1009

Vill

21

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATEMENT OF THE CASE

Petitioners Richard Lyman, Jr., et al., Trustees of the Ber-
nice P. Bishop Estate (“Bishop’), filed an intervening complaint
in this case on July 19, 1985. The claims of Bishop parroted
those of Kaiser Development Company, et al. (“Kaiser”), the
original plaintiff in this action. Read liberally, those claims
sought relief pursuant to 4Z U.S.C. § 1983 based on allega-
tions that the land use regulations and other conduct of
Respondent City and County of Honolulu (“the City”) violated
Bishop's rights involving a certain parcel of land known as
“Queen's Beach” under the Fifth and Fourteenth Amendments
to and the Contract Clause of the United States Constitution.

The City filed motions for summary judgment pertain:
ing to all claims of Bishop and Kaiser. In its decision on the
City’s motion against Bishop, the United States District Court
for the District of Hawaii (Honorable Samuel P. King, Judge)
held as follows:

Specifically, | find that. . . plaintiffs do not have any
vested rights to development at Queen's Beach; that
plaintiffs’ claims are not ripe for review under Wil-
liamson County [Regional Planning Comm'n v.
Hamilton Bank, 473 U.S. 172 (1985)|; that none of the
regulations or plans at issue violate due process or
equal protection on their face; that plaintiffs are not
entitled to procedural due process; and that the City
has not violated the guaranties of the Contract
Clause.

Kaiser Dev. Co. v. City and County of Honolulu, 649 F. Supp. ~

926, 949 (D. Haw. 1986) (Petitioners’ Appendix E at E 52).”

However, relying on Martino v. Santa Clara Valley Water
Dist., 703 F.2d 1141, 1146-47 (9th Cir.), cert. denied, 464 U.S.
847 (1983), the court held that Bishop's ‘inequitable precon-
demnation activities’’ claim was not subject to the Supreme
Court's ‘‘finality’’ requirements. 649 F. Supp. at 943 (Appen-
dix E 37-38). The court, therefore, denied summary judgment
against Bishop as to that claim.*

After the City’s motion to enter judgment pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure was denied
on November 13, 1986, Bishop’s remaining claim went to trial
before Judge King and a jury on June 26, 1987. At the con-
clusion of Bishop's case, the City moved for a directed ver-
dict. The trial court granted the City’s motion (Petitioners’
Appendix C at C 6), and, subsequently, entered judgment dis-
missing Bishop’s remaining claim.*

The district court's written decision and order granting
the City’s motion for directed verdict concluded that Bishop
had failed to establish that an official intent existed to acquire
any portion of Queen's Beach prior to passage of the 1982
General Plan (Appendix C 4);° that, in order to succeed on its

* References are made throughout this brief to Petitioners’ Appendix. Spe-
cifically, reference is made to Petitioners’ Appendices A and B (decisions
by the court of appeals), to Petitioners’ Appendix C (decision by the dis-
trict court on the City’s motion for directed verdict), and to Petitioners’
Appendix E (decision by the district court on the City’s motions for sum-
mary judgment).

3 The district court granted summary judgment against Kaiser on all of
its claims. 649 F. Supp. at 949 (Appendix E 52).

: Bishop's statement of the case indicates that the district court directed
a verdict against it on its ‘remaining claims.’ See Bishop's Petition, p. 5.
Presumably, Bishop is referring to claims under both the Fifth and Four-
teenth Amendments for inequitable precondemnation activities. The so-
called ‘‘Nollan claim" was not raised at trial. See infra Section II.

: Bishop did not appeal from this decision. Curiously, Bishop neverthe-
less dedicates the vast majority of its statement of facts to a hyperbolic
description of pre-1982 conduct by various City personnel and agencies.

claim, Bishop was required to present evidence from which
a fact-finder could reasonably conclude that Queen's Beach
or a portion thereof was *‘taken’’ by the City (Appendix C 3);
that, in order to prove a ‘‘taking,’ Bishop was required to
present evidence that no economically viable use of Queen's
Beach was available (Appendix C 5); and that Bishop had
failed to do so. (Appendix C 5).

Bishop appealed to the Court of Appeals for the Ninth
Circuit from both the district court’s summary judgment as
to all but one of its claims and from the district court’s deci-
sion directing a verdict against it on its one remaining claim.

With regard to the district court's decision granting sum-
mary judgment, the court of appeals affirmed for the reasons
stated in the district court’s decision. Kaiser Dev. Co. v. City
and County of Honolulu, 898 F.2d 112, 113 (9th Cir. 1990) (Peti-
tioners’ Appendix A at A 2).° In reaching its decision, the
court of appeals reviewed cases decided subsequent to the dis-
trict court’s decision and concluded that none of those cases
changed the validity of the district court's reasoning. /d. at
113 (Appendix A 2).

In a separate opinion addressing Bishop's claims of error
in connection with the trial court’s granting of the City’s
motion for directed verdict, Kaiser Dev. Co. v. City and County
of Honolulu, 913 F.2d 573 (9th Cir. 1990) (per curiam) (Peti-
tioners’ Appendix B), the court of appeals concluded, as did
the trial court (Appendix C 5), that Bishop's inequitable
precondemnation activities claim required proof that there
is no economically viable use for the subject property. 913
F.2d at 575 (Appendix B 9). Having reached that conclusion,
the court of appeals held, as did the trial court (Appendix C
5), that Bishop did not offer any substantial evidence that
it had no economically viable use for its property. 913 F.2d
at 576 (Appendix B 10). The court of appeals also

Bishop's assertion that the decision by the court of appeals ‘‘{a]stonish-
ingly ... contains no holding” is groundless. See Bishop's Petition, p. 1
n.2. The court of appeals held that *‘[t}he decision of the district court is
affirmed for the reasons stated by Judge King in Kaiser Development Co.
v. Honolulu, 649 F. Supp. 926 (D. Haw. 1986) [Appendix F]."" 898 F.2d at
113 (Appendix A 2).

concluded that Bishop did not raise an ‘‘unconstitutional exac-
tion”’ claim at trial. Jd. (Appendix B 10-11). Finally, the court
of appeals concluded that the district court did not abuse its
discretion in excluding certain evidence at trial. Jd. (Appen-
dix B 10).

Following the decision by the court of appeals, Bishop
filed a petition for rehearing and suggestion for rehearing en
banc. Therein, Bishop challenged the court of appeals’ con-
clusion that its inequitable precondemnation activities claim
required proof that there is no economically viable use of the
subject property.’ Bishop also contended in its petition for
rehearing that an unconstitutional exaction claim was raised
at trial.” Bishop's petition for rehearing was denied, and its
suggestion for rehearing en banc was rejected. Id. at 574
(Appendix B 6).

Bishop has now petitioned this Court for a writ of
certiorari.

STATEMENT OF FACTS®
A. The Subject Property: Queen’s Beach

Petitioners own approximately 6,000 acres of land, now
known as ‘Hawaii Kai,’ on the island of Oahu, State of

‘ Bishop also suggested that that conclusion created a conflict within the
Ninth Circuit, but see infra note 31 and-accompanying text.

. Bishop's petition for rehearing could also be read to challenge the court
of appeals’ conclusion that the trial court did not abuse its discretion in
excluding certain evidence at trial. The court of appeals’ conclusion, given
the limited standard for appellate review of evidentiary questions, see, e.g.,
Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1988), cer-
tainly was the proper one, and, based on its questions presented, Bishop
does not appear to be pursuing those evidentiary issues with this Court.

Bishop's statement, see Bishop's Petition, p. 5 n.6, that the City, in its
Appellee’s Brief, did not dispute the facts as presented by Bishop to the
(continued)

Hawaii.'® The subject property is a 209.4 acre parcel in Hawaii
Kai known as “‘Queen’s Beach.’ Queen’s Beach is vacant,
undeveloped land.

B. Land Use Plans Applicable To Queen’s Beach

As required by the 1959 Charter of the City and County
of Honolulu, a General Plan for Oahu was enacted by
ordinance effective May 7, 1964 (‘‘1964 General Plan’’).
Immediately thereafter, a Detailed Land Use Map for the
Hawaii Kai area was enacted, which was later amended (** 1966
DLUM”). The 1966 DLUM showed potential land uses for
Hawaii Kai. It designated approximately 109 acres of Queen's
Beach for future resort use, five acres for future commercial
use, and ninety-five acres for park and golf course use.

Effective January 2, 1973, the Revised Charter of the City
and County of Honolulu (‘1973 Charter’), as approved by the
Cit:’’s citizens, by a referendum vote heid on November 7,
1972, became law, supplanting the 1959 Charter. On October
28, 1975, the City amended by ordinance the 1964 General
Plan to clarify that DLUM’s were not to be regarded as zoning

9 (continued)
court of appe -als is patently false. It is clear from the following excerpt from
the City’s Appellee Brief that the City did dispute Bishop's ‘‘facts”’:

[T]he City urges the court to carefully examine those portions of
the record cited by Bishop Estate in support of its **facts.”’ In large
part, the record fails to support them as stated. Because of the
page limitation on the City’s Brief, however, it is virtually impos-
sible to address the multitude of overstatements and misstate-
ments of facts contained therein.

Brief for Appellee at 7 n.5. Not surprisingly. the City still finds itself con-
fronted with the task of addressing a multitude of overstatements and mis-
statements of fact.

On April 27, 1961, Bishop entered into an agreement with Kaiser. That

agreement designates Kaiser as Bishop's ‘‘independent contractor to sub-
divide, develop and improve’’ Hawaii Kai pursuant to the terms, most of
them restrictive, of the agreement.

Bishop's claimed motivation for entering into the agreement with Kaiser,
see Bishop's Petition, p. 3, was not presented in any form to the courts below.
Accordingly, it should have no bearing upon this Court. See Commissioner
v. McCoy, 484 US. 3, 6, reh'g denied, 484 U.S. 982 (1987); Singleton v. Wulff,
428 U.S. 106, 120 (1976)

5

maps, and were not to be considered as having priority over
the provisions of the General Plan. See Nuuanu Neighborhood
Ass'n v. Dep't of Land Utilization, 63 Haw. 444, 630 P.2d 107
(1981).

On February 2, 1977, pursuant to the 1973 Charter, a
General Plan for the City (‘1977 General Plan’’) was adopted
by resolution of the City Council.'’ That General Plan spe-
cifically identified Queen’s Beach as a possible site for future
resort development. On December 23, 1982, also pursuant to
the 1973 Charter, the 1977 General Plan was amended (‘‘1982
General Plan’’). The 1982 General Plan differed from the 1977
General Plan in several respects, including the fact that
Queen’s Beach was not specified as a possible site of future
resort development. Hence, until the passage of the 1982
General Plan, portions of Queen’s Beach were planned for
future resort use, but the zoning for all of Queen’s Beach, while
permitting residential use, did not permit resort use.!”

As also required by the 1973 Charter, the City began in
1977 the process of formulating Development Plans for all
areas of the City, including East Honolulu, which encompasses
all of Hawaii Kai, including Queen’s Beach.!* In 1979, the

'! The 1973 Charter provides that the General Plan contain:

[T]he city’s broad polices for the long range development of the
city. It shall contain statements of the general social, economic,
environmental and design objectives to be achieved for the general
welfare and prosperity of the people of the city through govern-
ment action, city, state or federal. The statements shall include
but not be limited to, policy and development objectives to be
achieved with respect to the distribution of social benefits, the most
desirable uses of land within the city, the overall circulation pat-
tern and the most desirable population densities within the several
areas of the city.

19 = , :,
For a full discussion of zoning ordinances applicable to Queen's Beach
see infra Statement of Facts, Section C.

“i Development Plans, as they were eventually formulated, are comprised
of three elements: a written portion, which describes the area to which it
is applicable as well as that area's long range goals, specific problems and
planned future development; a land use map, which shows in pictorial form
the future land uses for the area; and a public facilities map, which shows
in pictorial form the area's existing public facilities and planned future pub-
lic facilities.

City’s Department of General Planning (‘‘DGP”’) made pub-
lic its proposed Development Plan Land Use Map for East
Honolulu. This Development Plan Land Use Map proposed
that a portion of lower Queen’s Beach be designated for future
resort uses and that the remainder of the property be desig-
nated for future preservation uses. In 1980, DGP proposed
another Development Plan Land Use Map for East Honolulu
containing the same designations for Queen’s Beach (** 1980
Proposed DP’). This proposed plan was submitted to the City
Council, which, pursuant to the 1973 Charter, was required
to enact Development Plans as ordinances. The 1980 Proposed
DP was not adopted by City Council. Instead, the City Council
passed a Development Plan Land Use Map for East Honolulu
that was essentially consistent with a proposed land use plan
submitted by Kaiser (without, incidentally, Bishop's approval)
and that designated a portion of Queen’s Beach for future
resort uses and the remainder for future single-family residen-
tial uses. This Development Plan was vetoed by the Mayor
(along with all but one of the seven other proposed Develop-
ment Plans for the Island of Oahu passed by the City Coun-
cil at the same time), for, among other reasons, its failure to
adequately reflect the requirements of the 1977 General Plan.

In April, 1982, after reviewing input from both Bishop
and Kaiser,'* DGP made public another proposed Develop-
ment Plan Land Use Map for East Honolulu (**1982 Proposed
DP"’), which eliminated future resort uses at Queen's Beach.
Instead, it proposed that approximately eighty acres of
Queen's Beach be designated for future park uses and that
the remaining area of Queen's Beach be designated for future

ae rejecting Bishop's suggestion that the 1982 Proposed DP mirror the
1966 DILLUM, DGP was not denying Bishop ‘‘uses expressly permitted by
existing law... .’ See Bishop's Petition, p. 9n.14. After all, permitted uses
are controlled by zoning, and the DLUM’s were not to be regarded as zon-
ing maps. See City and County of Honolulu Ordinance No. 4517; Nuuanu
Neighborhood Ass'n v. Dep't of Land Utilization, 63 Haw. 444, 630 P.2d
107 (1981).

preservation uses.'° On May 10, 1983, the 1982 Proposed DP,
with minor changes, was adopted as the Development Plan
Land Use Map for East Honolulu. That map reflected the fact
that the 1982 General Plan had not identified Queen’s Beach
as a future resort site.

C. Zoning Ordinances Applicable To Queen’s Beach

Applicable zoning has at all relevant times permitted
development of Queen’s Beach. Beginning in 1943, Queen's
Beach was zoned to permit single-family residential uses. That
zoring was in effect until March 1, 1984, when the zoning of
Queen’s Beach was amended to permit preservation uses.
Preservation zoning allows many possible uses, such as pub-
lic and private golf courses, vacation cabins and uses that are
accessory to those uses.’°

D. Efforts To Develop Queen’s Beach"

Prior to 1971, Bishop made no effort to gain the neces-
sary approvals to develop Queen's Beach. On or about Feb-
ruary 8, 1971, Bishop applied to the City for a zone change
on sixteen parcels in Hawaii Kai, including a request that 42.4
acres of lower Queen’s Beach be rezoned for resort and

pe Bishop's contention that the City ‘designated Queen's Beach as ‘Park’
and ‘Preservation, and refused to permit any economically viable private
use,’ see Bishop's Petition, p. 4, is without merit for at least two reasons
First, the City did not ‘‘refuse”’ anything. Rather, Bishop never sought to
develop the property under the existing land use regulations. See infra
Section II1.A. Second, Bishop failed to prove that there were no economi
cally viable uses under those regulations. See infra note 27 and accom-
panying text.

l

® For a complete list of preservation uses see 649 F. Supp. at 929 n4
(Appendix E 4-6 n.4).

. Bishop is, perhaps, most disingenuous in its description of its efforts
to develop Queen's Beach. See, e.g., Bishop's Petition, pp. i, iin.1, 28. Bishop
made only two specific applications for zone changes or development of
Queen's Beach, not seven. Therefore, a patently false “fact” has been woven
throughout Bishop's petition, beginning with all three of its questions
presented.

commercial uses.'* That application was met with substan-
tial public opposition, including that of elected State legisla-
tors. The City deemed that application to be withdrawn as
of July 10, 1971.'9

No application has ever been submitted to the City to
develop lower Queen's Beach in accordance with applicable
zoning.”° Only one application was ever submitted to the City
to develop upper Queen's Beach, and that was submitted on
March 18, 1983, in anow admitted, see Bishop's Petition, pp.
9-10, race of diligence with the proposed East Honolulu
Development Plan, seeking approval to develop a single-family
residential subdivision across approximately 120 acres of
upper Queen's Beach. This one application was denied on May
19, 1983, after the May 10, 1983 enactment of the East
Honolulu Development Plan had designated that portion of
Queen's Beach for preservation uses.*' Kaiser appealed the
denial to the zoning board of appeals, which upheld the denial
on March 8, 1984. Bishop never appealed that denial to
Hawaii's state courts.”?

18 The City was not, as Bishop suggests, see Bishop's Petition, p. 6 n.8,
required to zone Queen's Beach in conformance with the General Plan and
the 1966 DLUM. See Nuuanu Neighborhood Ass'n v. Dep't of Lond Utili-
zation, 63 Haw. 444, 630 P.2d 107 (1981).

19 The City did not, as Bishop claims, refuse to consider the application.
See Bishop's Petition, p. 6. By a letter dated May 24, 1972 to the City’s
Planning Department, Kaiser requested that a public hearing on its appli-
cation be postponed, indicating that a revised application would be forth-
coming. It never requested that the original application be processed any
further. Thereafter, this application was considered withdrawn by the City.

The 1971 application was the only attempt to secure zoning for a resort
at Queen's Beach. Therefore, Bishop's contention that “the City prohibited
development of the resort,’ see Bishop's Petition, p. 4, is, at least, an over-
statement.

20 , : a av - .
Lower Queen's Beach is the “*makai,’ or “toward the ocean,” portion
of Queen's Beach comprised of roughly eighty acres.

“1 The application was denied on specified grounds set forth in a written

decision, none of which were in any way related to proposed dedication of

property.

sn Knowing that from 1971 to the institution of this litigation only two

applications were actually filed, Bishop's statement that its development
(continued)

E. The Alleged Unconstitutional Conduct

The City is a governmental body which has distinct legis-
lative and executive branches, and the latter has a number
of agencies, all as established and described by state law.
Bishop, in its petition, makes no effort to delineate the final
policy-making authority of the various components of the
City’s governmental structure, let alone establish where final
authority rests in the areas of land use planning and regula-
tion and the exercise of eminent domain authority. Rather,
Bishop unjustifiably characterizes the acts or conduct of City
personnel upon which it relies as that of ‘‘the City.’*°

In fact, all that Bishop is able to show is that certain ind)-
viduals or agencies within the City government, at various
times, personally desired a park at Queen's Beach. For instance,
Bishop introduced evidence to show that, in 1973 and again
in 1975, the Deputy Director of the City’s Parks Department

applications ‘‘made it a convenient target’ becomes rather ludicrous. See
Bishop's Petition, p. 18 n.24. The same holds true with regard to the state-
ment that “‘[e]very conceivable type of land use was applied for at one time
or another... .”’ See Bishop's Petition, p. 11. Aside from the fact that it
only made two applications, Bishop also overlooks its obvious failure to
apply for any of the potential uses allowed by present zoning. See infra
Section III.A.

23 For example, following its discussion of Deputy Parks Director Ramon
Duran’s 1975 press release, Bishop proclaims that “the City thus conceded
its unlawful purpose to blight the subject property.’ See Bishop's Petition,
p. 7n.11. Certainly, Mr. Duran and “the City” are not interchangeable teris.
The trial court recognized this at trial when it warned Bishop that *‘[ilf
you're relying upon [Mr. Duran] only to prove your case, you're in bad shape.’
(RT 15-41).

* Petitioners’ repeated reliance on the ‘blackmail’ expression says 2 lot
about their candor in dealing with this Court. ‘1r. Duran used the term
at his deposition, where it was stipulated by all parties, including Bishop,
that the word had been used ‘“‘facetiously.”’

Bishop also provides the Court with a September 21, 1990 newspaper
article (Appendix F) in support of its statement that the City “will hence-
(continued)

10

this particular official, nor the Parks Department as a whole,
was vested with authority to acquire park lands on behalf of
the City. Further, no funds were ever appropriated by the City
in furtherance of this person's wishes.

Bishop also introduced evidence of the conduct of City
employees at DGP. Again, none of these individuals, nor DGP
itself, was vested with authority to regulate or condemn lands
within the City’s jurisdiction, including Queen's Beach.

None of the individual acts complained of rose to the
required level of official action.”® The district court concluded
that no official action regarding a potential park at Queen's
Beach was taken until 1982 (Appendix C 4), and the court of
appeals, because of its findings on other issues, found it
unnecessary to reach the issue.”°

*4 (continued)

forth” engage in conduct which Bishop has concluded would violate con-
stitutional guaranties, conduct Bishop also says was “evidently” precipi-
tated ‘‘by the courts’ failure’ to stop it. See Bishop's Petition, p. 15 n.20.
Simply put, the article is irrelevant to the issues presented on appeal. As
if that were not enough, Bishop misrepresents the content of the article,
and the conclusions Bishop draws from the article are nothing more than
an unjustified affront to the City and, more importantly, to the Court.

2° One seeking relief from a municipality pursuant to 42 U.S.C. § 1983 is
required to prove that the conduct or action allegediy causing the constitu-
tional deprivation was pursuant to the municipality's official policy. City
of St. Lovis v. Praprotnik, 485 U.S. 112 (1988); Pembauer v. City of Cincin-
nati, 475 U.S. 469 (1986); Monell v. Dep't of Social Services, 436 U.S. 658
(1978).

26 “Phe court of appeals stated that: ** Because we find that Bishop did not
offer any substantial evidence that it had no economically viable use for
its property, we need not decide if the City took official action here. See
Richmond Elks Hall Ass'n v. Richmond Redev. Agency, 561 F.2d 1327, 1331
(9th Cir. 1977) (acknowledging ‘official action’ requirement for inequitable
precondemnation claim and finding such action in that case). 913 F.2d
at 576 n.3 (Appendix B 10 n.3).

1]

‘

REASONS WHY THE WRIT SHOULD
NOT BE GRANTED

I. THE COURTS BELOW PROPERLY CONCLUDED
THAT A CAUSE OF ACTION FOR INEQUITABLE
PRECONDEMNATION ACTIVITIES REQUIRES
PROOF OF NO ECONOMICALLY VIABLE USE.

In its decision, the court of appeals stated that *‘[a] cause
of action for inequitable precondemnation activities merely
states a type of regulatory takings claim. Recent Supreme
Court cases unequivocally indicate that the government does
not take an individual's property unless it has **‘denie[d] [him]
economically viable use of his land.’’ Nollan v. California
Coastal Comm'n, 483 U.S. 825, 834 (1987) (quoting Agins v.
Tiburon, 447 U.S. 255, 260 (1980)).’ 913 F.2d at 575 (Appen-
dix B 9). Accordingly, the court of appeals concluded, as did
the trial court (Appendix C 5), that Bishop's inequitable pre-
condemnation activities claim required proof that there is no
economically viable use for the subject property. 913 F.2d at
575 (Appendix B 9-10).*’ Although Bishop disagrees with that
conclusion and has petitioned for a writ of certiorari on that
basis, the courts below have reached the right conclusion.

As it did during argument on the City’s motion for
directed verdict, in its appellate briefs, in oral argument

97
27

Having reached the conclusion that Bishop's inequitable precondem-
nation activities claim required proof of no economically viable use, both
the trial court and the court of appeals held that Bishop did not offer any
substantial evidence that it had no economically viable use for its prop-
erty. See Appendix C 5 and 913 F.2d at 576 (Appendix B 9-10).

In light of the holdings of both courts below, Bishop's assertion that
‘‘{e]ventually, Bishop Estate proved at trial that these ostensibly permit-
ted uses were in fact infeasible,’ is a serious misrepresentation. See Bishop's
Petition, p. 11 n.17. Further, with regard to the testimony of Bishop's expert
witnesses, the trial court did not ‘insist’ on anything. See id. Rather, the
trial court ruled certain evidence inadmissible. Finally, the court of appeals
did not ‘ignore the submission” of the claimed evidentiary error. See id
The court of appeals, in fact, found the exclusion of the evidence proper.
913 F.2d at 576 (Appendix B 10).

before the court of appeals and in its petition for rehearing,
Bishop contends that proof of no economically viable use is
not required as part of its inequitable precondemnation activi-
ties claim.”* Rather than the availability of economically via-
ble use, Bishop contends that the important elements of a
claim for inequitable precondemnation activities are the bad
faith or unreasonableness of the government's conduct. As
the courts below have found, Bishop's contentions are wrong.

Bishop's contentions are wrong because Bishop does not
extend its legal analysis of a claim for inequitable precondem-
nation activities far enough. Bishop's analysis begins and ends
with the government's conduct. The impact of that conduct,
however, must also be included in the analysis. Specifically,
to establish liability for inequitable precondemnation acti\ i-
ties, the impact of governmental conduct on the property must
be so extensive that the property is regarded as ‘‘taken.’’ See,
e.g., Richmond Elks Hall Ass'n v. Richmond Redev. Agency,
561 F.2d 1327, 1331 (9th Cir. 1977); Benenson v. United States,
548 F.2d 939, 948 (Ct. Cl. 1977); Drakes Bay Land Co. v. United
States, 424 F.2d 574, 588 (Ct. Cl. 1970); Foster v. City of
Detroit, 254 F. Supp. 655, 665-66 (E.D. Mich. 1966), aff'd, 405
F.2d 138 (6th Cir. 1968).

A ‘taking,’ therefore, must be shown in order for Bishop
to prevail under its inequitable precondemnation activities
claim. The trial court so concluded (Appendix C 3-4), and the
court of appeals agreed. 913 F.2d at 575 (Appendix B 8-9). The
trial court also ruled that in order to show a ‘taking,’ the stan-
dard of no economically viable use, which is also applicable
to regulatory takings claim, must be satisfied. (Appendix C
5). That is, Bishop was required to show that no economically

28 For prosecuting this particular claim, Bishop relied principally upon Mar-
tino v. Santa Clara Valley Water Dist., 703 F.2d 1141 (9th Cir), cert. denied.
464 U.S. 847 (1983), and Richmond Elks Hall Ass'n v. Richmond Redev.
Agency, 561 F.2d 1327 (9th Cir. 1977). Interestingly enough, Bishop, in argu-
ing that something less than the standard of no economically viable use
is the appropriate standard for its remaining takings claim, no longer relies
on either Martino or Richmond Elks.

13

viable use was available to the property. The court of appeals,
citing the recent Supreme Court decisions in Nollan v. Cali-
fornia Coastal Comm'n, 483 U.S. 825, 834 (1987), and Kirby
Forest Industries, Inc. v. United States, 467 U.S. 1, 15 (1984),”°
again agreed with the trial court. 913 F.2d at 575 (Appendix
B 9). See also Agins v. City of Tiburon, 447 U.S. 255, 260
(1980);°° Penn. Ceniral Transp. Co. v. New York City, 438 U.S.
104, 138, n.36, reh'g denied, 439 U.S. 883 (1978).

The conclusion that a cause of action for inequitable
precondemnation activities, like a regulatory takings claim,
requires proof of no economically viable use is the proper one,”'
and, therefore, Bishop's petition should be denied.*”

- Bishop cites Kirby Forest in support of its position that the standard
for its inequitable precondemnaiion activities claim is something less than
a denial of economically viable use. See Bishop's Petition, p. 25. Kirby
Forest, however, lends no support to that position. 467 U.S. at 14-15.

- Bishop's suggestion that Agins endorses a standard other than the
denial of economically viable use for claims of inequitable precondemna-
tion activities is unavailing. See Bishop's Petition, p. 20. The clear impli-
cation of Agins is that, in order to succeed on its claim, Bishop was required
to show that the City’s precondemnation activities denied it economically
viable use of Queen's Beach. 447 U.S. at 260, 261 n.9. While noting that
the presence of ‘good faith planning activities’ may vitiate liability, the
Agins Court did not hold that an inquiry into good faith could replace the
preliminary inquiry into the economic viability of uses.

3) Par from creating the confusion and conflict complained of, see Bishop's
Petition, p. 17, the decision in this case provides welcomed claritication
regarding the elements of an inequitable precondemnation activities claim.
By concluding that Bishop's inequitable precondemnation activities claim
required proof that there is no economically viable use for the subject prop-
erty, the court of appeals implicitly found what the trial court clearly stated;
namely, ‘substantial interference,’ as that term is used in Martino, 703
F.2d at 114, and Richmond Elks, 561 F.2d at 1330, in the context of an
inequitable precondemnation activities claim. must, in order to be consis-
tent with recent Supreme Court decisions such as Nollan, Kirby Forest,
Agins and Penn Central, be read as ‘no economically viable use.’ (Appen-
dix C 5).

= Bishop's reference to Kaiser Aetna v. United States, 444 U.S. 164 (1979),
and its statement that ‘‘[njo reason appears why Honolulu should be able
to accomplish what this Court held may not be done constitutionally by

(continued)

14

Il. THE SO-CALLED NOLLAN CLAIM WAS NOT
RAISED AS A SEPARATE CLAIM BEFORE THE
TRIAL COURT.*®

In its memorandum of decision, the court of appeals con-
cluded that Bishop “‘failed ... to specify at trial that it was
pursing a separate claim based on unconstitutional exaction.
We, therefore, have no factual record to assist us in ruling on
this claim and hence do not reach this [claim]}.”’ 913 F.2d at
576 (Appendix B 10-11) (citations omitted and emphasis
added). Bishop contends, in its petition for a writ of certiorari,
that unconstitutional exaction was raised as a separate claim
at trial. The conclusion reached by the court of appeals is,
however, the proper one.

Bishop never did specify at the trial that it was pursu-
ing a separate claim based on an unconstitutional exaction.
Rather, Bishop always contended at trial that the conduct it
now argues gives rise to its exaction claim was part of a ‘‘con-
tinuing course of conduct” giving rise to its inequitable
precondemnation activities claim, not the basis of a separate
and distinct claim for constitutional relief.** That earlier con-
tention, unlike the present contention, was, of course, entirely

32 (continued)

the federal government,’ see Bishop's Petition, p. 3 n.4, should be dis-
regarded by the Court. In Kaiser Aetna, the Court found a taking through
physical invasion of a privately owned marina. 444 U.S. at 180. No claim
of physical invasion is being made herein, and, therefore, Kaiser Aetna has
no bearing upon this case.

334 decision by the court of appeals that a claim was not raised at trial
fails to satisfy the standards set forth in Rule 10 of the Rules of the Supreme
Court of the United States governing review on a writ of certiorari. Since,
however, those standards are ‘neither controlling nor fully measuring the
Court's discretion,’ the City will respond to Bishop's argument.

34 The remarks made by the City’s trial counsel during opening statement
to which Bishop makes reference in its petition, see Bishop's Petition, pp.
13-14, were in response to Bishop's continuing course of conduct claim as
it was explained to the jury during Bishop's opening statement. Certainly,
it would be much more probative for Petitioners to refer to specific instances
where they articulated that the Nod/an claim was being pursued at trial.
Such proof is conspicuously absent from Bishop's petition.

eee
on

consistent with the district court’s ruling on the City’s motion
for summary judgment. Relying on Martino v. Santa Clara
Valley Water Dist., 703 F.2d at 1146-47, the district court held
that Bishop's inequitable precondemnation activities claim
was not subject to the Supreme Court's “‘finality’’ require-
ments, see, e.g., MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340 (1986); Williamson County Regional Planning
Comm'n v. Hamilton Bank, 472 U.S. 172 (1985), and, there-
fore, denied summary judgment only as to that claim. 649 F.
Supp. at 943 (Appendix E 52) (‘In conclusion, the City’s
motions for summary judgment are granted against Bishop
and Kaiser on all causes of action except for Bishop's claims
concerning inequitable precondemnation activities.)

The argument before the trial court on the City’s motion
for directed verdict is most instructive on this issue. Despite
specific inquiry from the trial judge as to what claims were
before the court,®° not once did Bishop's trial counsel refer
to a claim for unconstitutional exaction. In fact, in at least
two instances, Bishop's trial counsel expressly stated that a
claim for unconstitutional exaction was not before the court.
The first instance involved the following exchange between
the court and Bishop’s trial counsel:

The court: Well, you're relying on Martino,[(703 F.2d 1141
(9th Cir.), cert. denied, 464 U.S. 847 (1983)] —

Mr. Jackson: Yes.

The court: Now, Parks v. Watson, [716 F.2d 646 (9th Cir.
1983)] too, I guess, huh?

Mr. Jackson: No, Parks was an unconstitutional exaction
case.
(RT 36-57).

= Bishop's petition for a writ of certiorari repeatedly states that Bishop
raised the Nollan claim ‘by every method known to law.’ See Bishop's Peti-
tion, pp. 16, 17, 19. Apparently, direct inquiries from the trial judge do not
count.

16

In the second instance, Bishop's trial counsel made the
following observation:

Mr. Jackson: [W]e are now beginning to see the law
begin to clear and the law is clearing in excessive exac-
tion cases, under Nollan, [483 U.S. 825 (1987)] its
clearing in over-regulation cases in First Evangeli-
cal, [482 U.S. 304 (1987)] and I submit that next case
will be one like this, where there has been a course
of conduct over a period of time that has culminated
in not only temporary damages but a fee
taking. ...

(RT 36-64). Thus, the trial court did not address an uncon-
stitutional exaction claim in its decision on the City’s motion
for directed verdict.*®

Bishop's suggestion that the court of appeals reached a
‘wholly unjustified’’ and ‘‘baseless’’ conclusion simply does
not withstand scrutiny. See Bishop's Petition, p. 19. The con-
clusion that an unconstitutional exaction claim was not raised
at trial was fully supported by arguments made below. In its
initial brief to the court of appeals, the City stated that
‘‘[Bishop] now seems to pursue a separate, independent claim
of ‘unconstitutional exaction; whereas, at trial, it did not,’
Brief for Appellee at 10 n.9, and the City provided the court
with an abundance of record cites to support that statement.
Bishop, of course, had the opportunity to respond to the City’s
argument that unconstitutional exaction was not raised as
a separate claim before the trial court in its reply brief, but
Bishop failed to do so. The issue was then the subject of argu-
ment before the court of appeals.

The court of appeals, with the benefit of the aforemen-
tioned briefs and argument in addition to a full record review,
concluded that Bishop did not raise the claim at trial. Bishop,
unsatisfied with that result, availed itself of its right

36 It should also be pointed out that the City did not address a claim for
unconstitutional exaction in its motion for directed verdict or during argu-
ment thereon.

17

to petition for rehearing, and, as Bishop itself acknowledges,
‘‘{ajll this was covered in [Bishop's] petition for rehearing.’
See Bishop's Petition, p. 13. That petition for rehearing was,
of course, denied. 913 F.2d at 574 (Appendix B 6). The court
of appeals had before it all of the arguments now being made
to this Court and did not alter its conclusion that Bishop did
not raise the claim at trial.*”

Now, two levels removed from the trial court, Bishop's
counsel of record continues to argue about what claims were
presented at a trial in which he did not even participate. Just
as the court of appeals was warned when faced with Bishop's
petition for rehearing, so shall this Court be warned in light
of Bishop's petition for a writ of certiorari. Do not fall prey
to Bishop's desperate tactics, first alluded to by the City in
its initial appellate brief. Therein, the City pointed out that
the ‘‘continued lack of clarity of Bishop's claims is no doubt
viewed by Bishop Estate as a means by which it can keep all
doors open to possible appellate relief. .. ’’ Brief for Appellee
at 1in.10. It is time to close those doors once and for all by
denying this petition.*®

T Bishop’ s request for a remand to the court of appeals on this issue is
incredible. See Bishop's Petition, p. 19. There is no justifiable reason why
si court of appeals should hear the same arguments for a third time.

5 In connection with the Nollan claim, Bishop cites Haw. Rev. Stat. § 46-6
and the ordinance enacted pursuant thereto, the so-called Park Dedication
Ordinance. See Bishop's Petition, p. 12. Since these issues could conceiv-
ably have some relevance to Bishop's inequitable precondemnation activi-
ties claim, the City will address them. First, by passage of § 46-6, the State
did not limit the City's power to impose park dedication conditions in con-
texts other than residential subdivision applications. Second, the City sim-
ply did not violate the provisions of its Park Dedication Ordinance. Bishop's
one subdivision application met the Ordinance’s requirements. The appli-
cation was denied for reasons totaily unconnected with noncompliance with
statutory dedication requiremenis.

For similar reasons, the City will also respond to Bishop's argument that
there was ‘‘no reasonable nexus” between a park and resort development.
See Bishop's Petition, p. 12. It is clear that a municipality may not condi-
tion the grant of a land use permit or approval upon the concession by the
applicant of a constitutionally guaranteed right unless the concession bears
a rational relationship to the goals served by the permit or approval require-

(continued)

18

III. THE COURTS BELOW PROPERLY CONCLUDED
THAT CERTAIN OF BISHOP’S CLAIMS ARE NOT
RIPE FOR FEDERAL ADJUDICATION.

In affirming the district court’s decision granting sum-
mary judgment against Bishop, the court of appeals stated:
‘The decision of the district court is affirmed for the reasons
stated by Judge King in Kaiser Development Co. v. Honolulu,
649 F. Supp. 926 (D. Haw. 1986) [Petitioner’s Appendix E].’’
898 F.2d at 113 (Appendix A 2). By affirming the district
court’s decision granting summary judgment against Bishop
‘for the reasons stated by Judge King,’ id. (Appendix A 2),
the court of appeals affirmed the district court’s dismissal
of all but one of Bishop's claims based upon the finding that
‘‘[Bishop’s] claims are not ripe for review under Williamson
County [Regional Planning Comm'n v. Hamilton Bank, 473
U.S. 172 (1985)].” 649 F. Supp. at 949 (Appendix E 52). Despite
Bishop’s complaint that the ripeness standard has become
a ‘‘puzzle,’ see Bishop’s Petition, p. 16, the court of appeals
and the district court properly found that certain of Bishop's
claims are not ripe for federal court review.

A. Bishop Has Never Secured A Final Decision From
The City Applying Preservation Zoning To Queen’s
Beach Nor Has Bishop Ever Sought A Variance From
Preservation Zoning.

Far from being a “‘puzzle,’ the standard for when a regula-
tory taking claim or a substantive due process claim premised
upon an allegation that all use has been denied is ripe for adju-
dication by a federal court is well-settled. Two conditions must
be satisfied. First, such claims are not ripe until the landowner
has received:

[A] final and authoritative determination of the type

38 (continued)

ment. Nollan, 483 U.S. at 836. However, in no instance described by Bishop
was City approval of any governmental benefit conditioned upon dedica-
tion of all or any portion of Queen's Beach. Without that essential prereq-
uisite, there is no need to undertake the rational relationship analysis.

19

and intensity of development legally permitted on the
subject property. ’

Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1453, modified,
830 F.2d 968 (9th Cir. 1987), cert. denied, 484 U.S. 1043 (1988)
(quoting MacDonald, Sommer & Frates v. Yolo County, 477
U.S. 340, 348 (1986)). Accord Williamson County Regional
Planning Comm'n, 473 US. at 180, 190 n.11; Hoehne v. County
of San Benito, 870 F.2d 529, 532 (9th Cir. 1989); Lake Naci-
miento Ranch Co. v. County of San Luis Obispo, 830 F.2d 977,
amended, 841 F.2d 872, 876 (9th Cir.), cert. denied, 488 U.S.
827 (1988); Lai v. City and County of Honolulu, 841 F.2d 301,
303 (9th Cir.), cert. denied, 488 U.S. 994 (1988); Austin v. City
and County of Honolulu, 840 F.2d 678, 680 (9th Cir.), cert.
denied, 488 U.S. 852 (1988); Shelter Creek Dev. Corp. v. City
of Oxnard, 838 F.2d 375, 377 (9th Cir.), cert. denied, 488 U.S.
851 (1988); Herrington v. Sonoma County, 834 F.2d 1483, 1499
(9th Cir. 1987), amended, 857 F.2d 567 (9th Cir. 1988), cert.
denied, 489 U.S. 1090 (1989). As this Court has explained: *‘A
court cannot determine whether a regulation has gone ‘too
far’ unless it knows how far the regulation goes.’ MacDonald,
Sommer & Frates, 477 U.S. at 348. In other words, ** ‘the
nature and extent of permitted development’ must be
‘‘expose[d]"’ by virtue of the municipality’s final decision.
Kinzli, 818 F.2d at 1453 (quoting MacDonald, Sommer &
Frates, 477 U.S. at 348).

The district court found, and the court of appeals agreed,
898 F.2d at 113 (Appendix A 2), that the Petitioners ‘‘have
not submitted a development plan under the present land use
regulations, which list at least twenty possible uses for the
land...’ 649 F. Supp. at 940 (Appendix E 31). Bishop has,
therefore, failed to obtain a final and authoritative determi-
nation of ** ‘the nature and extent of permitted development’ ~
at Queen's Beach. Kinzli, 818 F.2d at 1453 (quoting Mac-
Donald, Sommer & Frates, 477 U.S. at 348). By failing to
expose the extent of permitted development, Bishop has failed
to satisfy the so-called ‘final decision requirement.’ Herring-
ton, 834 F.2d at 1496.°"

39 1: . . $s ‘
Bishop maintains that it is a “mystery” how summary judgment could
‘ be granted on a point on which there was a conceded factual dispute. See
(continued)

20

Bishop’s shortcomings do not end there. The final deci-
sion requirement also requires a plaintiff to show that it has
applied for and been denied a variance from the regulations
at issue. Lake Nacimiento Ranch Co., 841 F.2d at 876 (citing
Williamson County Regional Planning Comm'n, 473 US. at
187-88; Kinzli, 818 F.2d at 1454). Accord Lai, 841 F.2d at 303;
Austin, 840 F.2d at 680; Shelter Creek Dev. Corp., 838 F.2d
at 377. The district court found, and the court of appeals again
agreed, 898 F.2d at 113 (Appendix A 2), that Bishop has never
sought a variance from the regulations at issue, 649 F. Supp.
at 942 (Appendix E 31), although Bishop has been able to
apply for such a variance pursuant to § 6-1009 of the 1973
Charter. As this Court stated in Williamson County Regional
Planning Comm'n: “'[I]t is impossible to determine the extent
of the loss or interference until the [municipality] has decided
whether it will grant a variance from the application of its
regulations.’ 473 U.S. at 192 n.12.

Having failed to submit a development plan under the
present land use regulations and having failed to apply for
a variance from those regulations, Bishop has absolutely failed
to meet the final decision requirement. Therefore, its taking
claims are not ripe for adjudication by a federal court.

39 (continued)

Bishop's Petition, p. 4 n.5. The district ccurt, however, explained away
Bishop's purported mystery. In reaching its decision that Bishop had failed
to satisfy the final decision requirement, the district court stated that:

The City readily admits that there is a significant factual dispute
concerning the economic value of Queen's Beach under the present
zoning. I believe I do not have to assess the economic viability
of particular uses in this case. For the purpose of my determina-
tion that the takings issue is unripe, I believe it is sufficient that
the present zoning allows many potential uses and that plaintiffs
have not submitted any application, let alone a **meaningful" one.
to develop Queen's Beach consistent with its zoning.

649 F. Supp. at 942 n.21 (Appendix FE 36 n.21) (emphasis in original).

21

B. The Futility Exception Does Not Excuse Bishop From
Meeting The Final Decision Requirement.

Bishop does not claim that it satisfied the final decision
requirement. Rather, Bishop seeks to avoid the requirement
by claiming that ‘‘[h]aving to seek further City approvals*°
to achieve ‘ripeness’ would have been an exercise in utter futil-
ity...’ See Bishop's Petition, p. 28.*' The so-called ‘‘futility
exception” to the final decision requirement holds that the
requirement may be avoided if the plaintiff can show that an
attempt to comply with the requirement would be an “‘ ‘idle
and futile act. ’’ Kinzli, 818 F.2d at 1454 (quoting Martino
v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1146 n.2 (9th
Cir.), cert. denied, 464 U.S. 847 (1983)). The plaintiff has the
‘* ‘heavy burden’ "’ of showing futility. Lake Nacimiento, 841
F.2d at 876 (quoting Am. Savings & Loan Ass'n v. County
of Marin, 653 F.2d 364, 371 (9th Cir. 1981)).

Bishop cannot meet this heavy burden for the same rea-
son that it cannot satisfy the final decision requirement.
Bishop has never made any application, let alone a meaning-
ful one, pursuant to the regulations at issue, nor has it made
a meaningful application for a variance from those regulations.
A plaintiff cannot rely on the futility exception until at least
one ‘meaningful application” has been made to expose the
type and intensity of development legally permitted on the
subject property and at least one ‘‘meaningful application”
has been made for a variance from the regulations at issue.
Lake Nacimiento Ranch Co., 841 F.2d at 876-77; Herrington,
834 F.2d at 1495-96; Kinzli, 818 F.2d at 1454-55.*”

” Bishop suggests that this would be the eighth time it sought City
approval, but see supra note 17 and accompanying text.
pp p panying

= Bishop claims futility on the basis that “the City” made it clear that
it would not permit any private land uses unless Queen's Beach was donated
to the City. For the problems with this claim see supra note 23 and accom-
panying text.

42, , F , .
The answer, therefore, to Bishop's question regarding the number of
times a landowner ‘must beat his head against a brick wall,” see Bishop's
(continued)

22

Bishop has never applied for permission to develop under
the challenged regulations or for a variance from the chal-
lenged regulations. Therefore, the ‘futility exception” is not
available to Bishop. That heavy burden has not been met.
‘‘[Mlere allegations by a property owner that it has done every-
thing possible to obtain acceptance of a development proposal
will not suffice to prove futility.’ Herrington, 834 F.2d at 1496
(citing Williamson County Regional Planning Comm'n, 473
US. at 188; Kaiser Dev. Co., 649 F.Supp. at 942). Bishop merely
alleges futility.

C. Bishop Has Failed To Demonstrate That There Is
No Adequate State Procedure For Securing Just
Compensation.

The second condition that must be satisfied before a
regulatory taking claim or a substantive due process claim
premised upon an allegation that all use has been denied is
ripe for adjudication by a federal court is that the land-
owner must prove that state procedures for obtaining just
compensation are inadequate. See Williamson County Re-
gional Planning Comm'n, 473 U.S. at 196-97; Hoehne, 870 F.2d
at 534; Lake Nacimiento Ranch Co., 841 F.2d at 879-80;
Austin, 840 F.2d at 680; Kinzli, 818 F.2d at 1455.*°

42 .

(continued)
Petition, p. 29, is at least once. Bishop cannot, however, meet the one
meaningful application requirement.

The one meaningful application requirement also provides the answer
to Bishop's inquiry regarding ‘‘combination of uses.’ Bishop asks whether
a land owner must apply for all combinations of uses, see Bishop's Peti-
tion p. 29 n.31, and the answer is, of course, ne. A land owner can resort
to the futility exception after one meaningful application. Once again,
however, Bish p cannot meet that requirement.
= Despite Bishop's grumblings about the “challenge” to the plaintiff, see
Bishop's Petition, p. 27, the burden is upon the plaintiff to show “that the
inverse condemnation procedure is unavailable or inadequate. . . °° William-
son County Regional Planning Comm'n, 473 U.S. at 197.

23

The courts below did not, as Bishop seems to suggest,
construe Williamson County as requiring state court litiga-
tion even where state remedies are unavailable or uncertain.
Rather, the district court found, and the court of appeals
agreed, 898 F.2d at 113 (Appendix A 2), that Bishop “has not
tried to use state procedures to obtain just compensation or
shown that such procedures are unavailable or inadequate. ’
649 F. Supp. at 942 (Appendix E 36).**

Bishop also suggests that it was ‘‘conceded”’ that
Hawaii's procedures were unavailable or inadequate. See
Bishop's Petition, p. 27. That suggestion requires elaboration.
No such concession was made in this case. In Lai, the defen-
dant City and County of Honolulu stipulated that there were
no state procedures in Hawaii for recovering just compensa-
tion pursuant to inverse condemnation claims. Certainly, that
stipulation does not constitute case law that bound the courts
below in their deliberations in this case,*° and it would appear,
in fact, that the stipulation executed by the parties in Lai was
ill-advised. In Austin, where the defendant City and County
of Honolulu did not enter into a stipulation regarding the avail-
ability of state remedies, the Ninth Circuit concluded that the
plaintiff could seek compensation pursuant to the Hawaii Con-
stitution and Haw. Rev. Stat. § 101-3. 840 F.2d at 681. The
Austin Court then held that the plaintiff's claim was not ripe
because the plaintiff failed to prove that relief under those
state laws would be inadequate. Jd. at 680-81. Austin is con-
spicuously absent from Bishop's discussion of the availabil-
ity and adequacy of state remedies.

44 Without the benefit of elaboration, Bishop suggests that the decision
by the court of appeals in this case ‘conflicts’ with Herrington. See
Bishop's Petition, p. 27. To the extent that the perceived conflict is that
the second requirement of the ripeness doctrine was not applied in /er-
rington, the court there explained that it was not applying the requirement
that the plaintiff prove that state procedures for obtaining just compen-
sation are inadequate because no Fifth Amendment takings claims were
being raised therein. 834 F.2d at 1499 n.10. Obviously, that is not the case
here.

4 ‘The court of appeals specifically considered Lai, and concluded that the
decision in Lai did not ‘change the validity of [the district court's] reason-
ing or the result in this appeal.’ 898 F.2d at 113 (Appendix A 2).

24

Finally, Bishop contends that state remedies are, in fact,
unavailable in Hawaii state courts. In support of that con-
tention, Bishop cites City and County of Honolulu v. Chun,
54 Haw. 287, 506 P.2d 770 (1973), and Honolulu Memorial
Park, Inc. v. City and County of Honolulu, 50 Haw. 189, 436
P.2d 207 (1967). It should be pointed out as a preliminary mat-
ter that Bishop, in attempting to satisfy its burden on this
issue, did not provide either of the courts below with these
citations. Therefore, these cases should be given little, if any,
weight by this Court.

In any event, these cases do not support the contention
that state remedies for inverse condemnation are unavailable
in Hawaii state courts. Chun, which Bishop, for the first time,
cites for the proposition that ‘* Hawaii courts did not permit
an action in inverse condemnation seeking just compensation
for takings affected by precondemnation blight,’ see Bishop's
Petition, p. 27, is a direct condemnation action. Rather than
offering any insight into how the court would handle an action
in inverse condemnation, Chun discusses when the value of
the taking is to be established in a direct condemnation action.
54 Haw. at 288-89, Chun concludes that, in a direct condem-
nation action, the value of the condemned property is set at
the date of the summons. /d. at 289. Chun does not foreclose
a property owner from filing an inverse condemnation action
for damages occurring prior to that date.

Bishop's new-found reliance on Honolulu Memorial Park
is even more misplaced. Honolulu Memorial Park, which
Bishop cites for the proposition that Hawaii ‘‘did not even
permit an action for just compensation for physical seizure
of privately owned land,” see Bishop's Petition, p. 27, is an
action for ejectment. In explaining the nature of an action
for ejectment, the Supreme Court of the State of Hawaii stated
that ‘it does not in anyway include condemnation of prop-
erty,’ 50 Haw. at 194, and, therefore, ‘‘evidence [of damages]
is immaterial. .. ”’ Jd. Obviously, neither of these cases can
fairly be said to support the contention that state remedies
for inverse condemnation are unavailable in Hawaii state
courts.

The courts below properly concluded that Bishop had
failed to prove that just compensation is not available under
Hawaii law. Given that conclusion and the earlier conclusion
that Bishop had failed to meet the final decision requirement,
Bishop's takings claims are not ripe for federal adjudication.

CONCLUSION

For the foregoing reasons, including the Petitioners’ fail-
ure to comply with Rule 14.5 of the Rules of the Supreme
Court, the Respondent City and County of Honolulu respect-
fully urges this Court to deny the Petitioners’ petition for a
writ of certiorari.

Respectfully submitted,

H. BISSELL CAREY, III
Counsel of Record

STEVEN‘L. RICHARDS
DWIGHT H. MERRIAM
ERIC D. DANIELS
ROBINSON & COLE

RONALD B. MUN

Corporation Counsel

DONNA M. WOO

Department of Corporation Counsel,
City and County of Honolulu

Attorneys for Respondent

March 8, 1991 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3373%3A2. Public record. Not legal advice.