Opposition Brief — Guimont v. Director, Department of Community Development

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No. 93-1135

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

ROBERT PATRICK GUIMONT, ET AL., Cross-Petitioners,

THE DIRECTOR OF THE DEPARTMENT

OF COMMUNITY DEVELOPMENT, Cross-Respondent.

ON CROSS-PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT

OF WASHINGTON

BRIEF IN OPPOSITION

CHRISTINE O. GREGOIRE

Attorney General of Washington

JOHN J. RYAN*

WILLIAM BERGGREN COLLINS

TOMMY PRUD’HOMME

Assistant Attorneys General

Counsel for Cross-Respondent

* Counsel of Record

Office of the Attorney General

905 Plum St., Bldg. 5, P.O. Box 40100

Olympia, WA 98504-0100

(206) 753-6213

QUESTION PRESENTED

Whether a land use regulation, that substantially

advances a legitimate state interest and does not deny the owner

all economic use of the property or result in a physical invasion,

may nevertheless be invalidated under the Takings Clause based

on a non-fact specific facial claim that the regulation has unfairly

singled out the property owner to bear a burden that should be

borne by the public.

TABLE OF CONTENTS

1. The Washington Supreme Court Correctly

Concluded That the Mobile Home Relocation

Assistance Act is Not a Taking .......... 4

2. This Court Should Grant Both the State’s

Petition and Guimont’s Cross-Petition to

Clarify the Relationship Between Takings and

Substantive Due Process ............. 10

roe a ys c's yy oboe o 8 8 8 14

iii

TABLE OF AUTHORITIES

Cases Page

Agins v. City of Tiburon,

ee Wale Ge EE 6 86.45 bs os 443 os SE ES 5

Concrete Pipe & Prod. of Cal. v.

Construction Laborers Pension Trust

for S. Cal.,

508 U.S. _, 113 S. Ct. 2264 (1993) ......... 11, 12

Connolly v. Pension Benefit Guaranty Corp.,

Goel a ee I 6 68 os Vs oo 8 hos Oe 12

First English Evangelical Lutheran

Church v. County of Los Angeles,

ee 8. ee eee eee 12, 13

Guimont v. Clarke,

121 Wash. 2d 586, 854 P.2d 1 (1993).......... 2, 3, 6

Hodel v. Virginia Surface Mining

& Reclamation Ass’n,

en 5

Nollan v. California Coastal Comm’n,

Ge ee ES in 85d ko eh 6-8, 11

Orion Corp. v. State,

109 Wash. 2d 621, 747 P.2d 1062,

cert. denied, 486 U.S. 1022 (1988) ............... 3

Presbytery of Seattle v. King County,

114 Wash. 2d 320, 787 P.2d 907,

one. GR, Se Ge. Fhe CD bn bse ddewnenae 3

Robinson v. Seattle,

119 Wash. 2d 34, 830 P.2d 318,

cert. denied, 113 S.Ct. 676 (1992) ................ 3

Sintra, Inc. v. Seattle,

119 Wash. 2d 1, 829 P.2d 765,

cert. denied, 113 S. Ct. 676 (1992) ...............3

Yee v. City of Escondido,

wae Ue. BES Oo, GA. See CPP E) occ e es 4&3

STATEMENT

This case involves a challenge to the Mobile Home

Relocation Assistance Act (the “Act") passed by the Washington

Legislature to address the state-wide problem of relocation

expenses associated with the closing of mobile home parks. The

Washington Supreme Court ruled the Act violated substantive

due process. The State of Washington through the Director of

the Washington Department of Community Development has

petitioned for a writ of certiorari seeking review of this ruling.

The Washington Supreme Court also ruled that the Act was not

unconstitutional under the Takings Clause. The cross-petition

filed by Guimont and the other Cross-Petitioners seeks review of

the takings ruling.

The basic facts about the operation of the Act and the

procedural history of this case are set forth in the State’s

petition. Pet. 3-9. Of particular significance is the fact that this

action involves a facial challenge to the validity of the Act.

Guimont did not seek compensation for any alleged taking.

Guimont sought only to invalidate the Act.

Indeed, Guimont did not challenge the application of the

Act to any particular piece of property. Guimont v. Clarke, 121

Wash. 2d 586, 606, 854 P.2d 1 (1993). Pet. A-26. In this

respect, the statement of the case in the cross-petition is

potentially misleading. In it Guimont dwells on the experience

of one of the intervenors, Bear Creek Associates. Res. Br. Opp.

at 1-2.'_ However, this case does not concern the application of

the Act to any specific piece of property, including that of Bear

Creek.? This case presents solely a facial challenge to the Act.

ARGUMENT

The Washington Supreme Court has worked hard to

develop a set of rules to reconcile the application of substantive

' The statement of the case in Guimont’s cross-petition

incorporates the counter statement of facts contained in

Guimont’s Brief in Opposition. Cross-Pet. 3.

? In addition to intervening in this action, Bear Creek

brought a separate action alleging that the Act was

unconstitutional. Bear Creek Assoc. v. Department of

Community Dev., Thurston County Superior Court, Docket No.

91-2-00061-9. At this point, it is not clear whether Bear Creek’s

action represents a facial or "as applied" challenge to the Act.

However, Bear Creek’s intervention in this case did not change

the facial challenge raised by Guimont.

due process and takings in the land use context.’ Since the

Washington Supreme Court has developed these doctrines

together, Guimont argues that this Court should grant the cross-

petition regarding takings, if it grants the State’s petition

regarding substantive due process. Cross-Pet. at 4-5. We agree.

As we noted in the State’s petition, there is significant confusion

regarding the relationship between substantive due process and

takings in the land use context. Pet. 22-25. This case presents

the Court with an ideal vehicle to resolve this confusion and both

the state and federal courts would benefit if this Court explained

the relationship between these two doctrines.

While we agree that it would be appropriate to grant both

petitions to resolve the confusion regarding the relationship

between substantive due process and takings, we do not believe

“_

that the Questions Presented by Guimont have any particular

> See Orion Corp. v. State, 109 Wash. 2d 621, 747 P.2d

1062, cert. denied, 486 U.S. 1022 (1988); Presbytery of Seattle

v. King County, 114 Wash. 2d 320, 787 P.2d 907, cert. denied,

498 U.S. 911 (1990); Sintra, Inc. v. Seattle, 119 Wash. 2d 1,

829 P.2d 765, cert. denied, 113 S. Ct. 676 (1992); Robinson v.

Seattle, 119 Wash. 2d 34, 830 P.2d 318, cert. denied 113 S. Ct.

676 (1992); and Guimont v. Clarke, 121 Wash. 2d 586, 854

P.2d 1 (1993).

significance in and of themselves. The Washington Supreme

Court was correct in ruling that there is no taking in this case.

The court below properly applied the takings decisions of this

Court in analyzing the facial challenge to the Act.

1. The Washington Supreme Court Correctly

Concluded That the Mobile Home Relocation

Assistance Act is Not a Taking

The precedents of this Court establish two distinct classes

of takings analysis. The first is physical occupation of the

property. "Where the government authorizes a physical

occupation of property (or actually takes title), the Takings

Clause generally requires compensation." Yee v. City of

Escondido, 503 U.S. __, 112 S. Ct. 1522, 1526 (1992). The

second is a regulatory taking. The regulation of property may

require compensation depending on "complex factual assessments

of the purposes and economic effects of government actions."

Id.

The complex factual assessment required for a regulatory

taking claim may be avoided to some extent if the property

owner makes only a facial challenge that presents no concrete

controversy concerning the application of the law to any

iia

particular piece of property. "The test to be applied in

considering [a] facial challenge is fairly straightforward. A

statute regulating the uses that can be made of property effects

a taking if it ‘denies an owner economically viable use of his

land{.]"" Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264, 295-96 (1981) (quoting Agins v. City of

Tiburon, 447 U.S. 255, 260 (1980)). A facial challenge to an

alleged regulatory taking can apparently also be based on the

claim that “the ordinance does not ‘substantially advance’ a

‘legitimate state interest’ no matter how it is applied.” Yee, 112

S. Ct. at 1532.

In this case the Washington Supreme Court concluded

there was no physical or regulatory taking. First, there was no

physical invasion of Guimont’s property. "The government

effects a physical taking only where it requires the landowner to

submit to the physical occupation of his land.” Id. at 1528

(emphasis by the Court). The Washington Supreme Court

correctly concluded that the Act imposes no such requirement

because park owners have the right to voluntarily rent space and

to terminate the rental relationship. Guimont v. Clarke, 121

Wash. 2d at 608. Pet. A-29-30.

Second, Guimont’s regulatory taking claim raised only

a facial challenge. There was no regulatory taking because

Guimont made no attempt to prove the Act denied the park

owners all economically viable use of their property. Jd. at 606.

Pet. A-26. The Washington Supreme Court also correctly

rejected Guimont’s claim that the Act does not substantially

advance legitimate state interests. The court said: “The State

has a legitimate interest in addressing the statewide problem of

relocation expenses associated with mobile home park closings.

Making funds available to mobile home owners who are forced

to relocate substantially advances that interest.” Jd. at 606 n.8.

Pet. A-26.

Guimont claims that the court’s analysis of this final

point is inconsistent with the analysis in Nollan v. California

Coastal Comm'n, 483 U.S. 825 (1987). Cross-Pet. 11-13.

Guimont’s argument is flawed because it misstates the basis of

the Court’s decision in Nollan. According to Guimont:

This Court, in Nollan, recognized that the

Coastal Commission had a legitimate objective of

providing greater public access along the beach

and that acquisition of more access furthered it.

The means of acquisition employed, however,

were improper. . . . The actual condition

imposed was improper because it singled out the

Nollans and required them to provide a benefit

which should have been provided by the public

as a whole.

Cross-Pet. 7-8 (emphasis added).

This was not the basis of the Court's decision in Nollan.

Contrary to Guimont’s assertion, in Nollan the state asserted that

it had a legitimate state interest in “protecting the public's ability

to see the beach, assisting the public in overcoming the

‘psychological barrier’ to using the beach created by a developed

shorefront[.]” Nollan, 483 U.S. at 835 (emphasis added).

However, the restriction imposed by the state required access to

the beach rather than a view of the beach. Thus, the Majority

concluded that it was “impossible to urderstand how a

requirement that people already on the public beaches be able to

walk across the Nollans’ property reduces any obstacles to

viewing the beach created by the new house.” Jd. at 838.

The problem in WNollan was that the “condition

substituted for the prohibition utterly fails to further the end

advanced as the justification for the prohibition.” Jd. at 837. If

the condition in Nollan had dealt with view rather than access,

the Court likely would have concluded that there was no taking .*

In this case, unlike Nollan, there is a direct relationship

between the closing of a mobile home park and the payment of

relocation assistance to displaced homeowners. Guimont is

simply wrong in asserting that Nollan established a test to

determine whether a property owner is being singled out to

provide a benefit that should be provided by the public as a

* According to the Court in Nollan:

Thus, if the Commission attached to the permit

some condition that would have protected the

public’s ability to see the beach notwithstanding

construction of the new house-—for example, a

height limitation, a width restriction, or a ban on

fences—so long as the Commission could have

exercised its police power (as we have assumed

it could) to forbid construction of the house

altogether, imposition of the condition would

also be constitutional.

483 U.S. at 836.

whole. Indeed, the Court in Nollan specifically recognized that

this was not the basis of the landowner’s challenge.’

Of course, a property owner can raise a takings claim

based on the allegation that a regulation unfairly singles out the

land owner to bear a burden that should be borne by the public.

However, such a claim must be raised in an “as applied”

challenge that concerns a specific piece of property. As the

Court said in Yee:

But where the government merely regulates the

use of property, compensation is required only

if considerations such as the purpose of the

regulation or the extent to which it deprives the

> The Court said:

If the Nollans were being singled out to bear the

burden of California’s attempt to remedy these

problems, although they had not contributed to

it more than other coastal landowners, the

State’s action, even if otherwise valid, might

violate either the incorporated Takings Clause or

the Equal Protection Clause. One of the

principal purposes of the Takings Clause is "to

bar Government from forcing some people alone

to bear public burdens which, in all fairness and

justice, should be borne by the public as a

whole.” But that is not the basis of the Nollans’

challenge here.

Id. at 835 n.4 (emphasis added, citations omitted).

owner of the economic use of the property

suggest that the regulation has unfairly singled

out the property owner to bear a burden that

Should be borne by the public as a whole... .

[This] necessarily entails complex factual

assessments of the purposes and economic

effects of government actions.

Yee, 112 S. Ct. at 1526 (emphasis added, citations omitted). In

a facial challenge, such as the case at bar, it is simply not

possible to conduct the "complex factual assessments” required

to determine whether an individual landowner has been unfairly

singled out. Nollan does not so hold.

2. This Court Should Grant Both the State’s

Petition and Guimont’s Cross-Petition to

Clarify the Relationship Between Takings and

Substantive Due Process

Although the Washington Supreme Court was correct in

concluding the Act does not result in a taking, we urge the Court

to grant both the State’s petition and Guimont’s cross-petition.

In the State’s petition, we seek review of the unduly oppressive

standard applied by the Washington Supreme Court in its

substantive due process analysis. In raising the takings issue, the

cross-petition offers the Court the opportunity to clarify how the

test for substantive due process relates to the requirement of the

Takings Clause that a land use regulation substantially advance

a legitimate state interest.

As we noted in the State’s petition, there is substantial

confusion regarding the relationship between substantive due

process and takings. Pet. at 22-25. This confusion revolves

around a number of unanswered questions.

First, is the test for substantive due process the same as

the Takings Clause requirement that a land use regulation

substantially advance a legitimate state interest? Speaking for the

Majority in Nollan, Justice Scalia indicates that the tests are

different. ("Contrary to Justice Brennan’s claim . . . our

opinions do not establish that these standards [substantially

advance a legitimate state interest] are the same as those applied

to due process or equal protection claims." Nollan, 483 U.S. at

834 n.3.) In his dissenting opinion Justice Brennan disagreed.

("Not withstanding the suggestion otherwise . . . our standard

for reviewing the threshold question whether an exercise of the

police power is legitimate is a uniform one.” Jd. at 843 n.1.)

In Concrete Pipe & Prod. of Cal. v. Construction Laborers

Pension Trust for S. Cal., 508 U.S. _, 113 S. Ct. 2264

(1993), the Court seems to say that the tests are the same or at

least very similar. ("Given that Concrete Pipe’s due process

arguments are unavailing, ‘it would be surprising indeed to

discover’ the challenged statute nonetheless violating the Takings

Clause.” Jd. at 2289, quoting Connolly v. Pension Benefit

Guaranty Corp., 475 U.S. 211, 223 (1986).)

Second, can the Takings Clause be used to invalidate a

land use regulation when the landowner does not seek

compensation? A regulation that violates substantive due process

is unconstitutional and unenforceable. It is not clear whether this

is also true of the Takings Clause. First English Evangelical

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

(1987), suggests that the Takings Clause applies to determine

whether compensation is necessary. ("[The Takings Clause]

does not prohibit the taking of private property, but instead

places a condition on the exercise of that power.” Jd. at 314.)

On the other hand, Yee seems to say that even if there is

compensation, a regulation may be struck down if it does not

substantially advance a legitimate state interest. ("As this

allegation does not depend on the extent to which petitioners are

deprived of the economic use of their property or the extent to

which these particular petitioners are compensated, petitioners’

facial challenge is ripe." Yee, 112 S. Ct. at 1532.) This

question is directly relevant here since Guimont does not seek

compensation. Guimont only seeks to invalidate the Act.

Finally, there is an additional question relating to remedy

for violations of substantive due process and the Takings Clause.

If a land use regulation violates substantive due process it is

invalid. If the regulation violates the Takings Clause the

government appears to have the option of paying compensation

and “taking” the property. ("Once a court determines that a

taking has occurred, the government retains the whole range of

options already available-amendment of the regulation,

withdrawal of the invalidated regulation, or [the] exercise of

eminent domain." First Lutheran Church, 482 U.S. at 321.)

Thus, in Nollan the State could have compensated the landowner

in order to obtain access to the beach. Yet how can the

government exercise its eminent domain power under the

Takings Ciause if the land use regulation also violates substantive

due process?

The Washington Supreme Court and other courts have

long struggled with these questions. They are important and

complex. This Court can resolve these questions in this case.

It presents an ideal vehicle because this case is essentially a

simple one. It is a facial challenge to a statute and does not

involve a complex factual record. It offers the Court the

opportunity to establish a baseline for its substantive due process

and takings analysis.

CONCLUSION

For the reasons stated above, the Cross-Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,