# Amicus Curiae Brief — Wong v. Carson City Council

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1635%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 915

## Text

“) ORIGINAL

No. 95-241

suoreme Court, U.S.

In the FYt £ D
Supreme Court of the United} Statés? 8% 1995
October Term, 1995

CLERK

x2

DARRYL WONG, WILLIE WONG,
and DELPHINE WONG,
Petitioners,
Vv.

CITY COUNCIL OF THE CITY

OF CARSON and PLANNING
COMMISSION OF THE CITY OF CARSON,
Respondents.

>

Petition for a Writ of
Certiorari to the California Court
of Appeal for the Second Appellate District

,%
4

BRIEF AMICUS CURIAE OF
PACIFIC LEGAL FOUNDATION IN
SUPPORT OF PETITION FOR CERTIORARI
FILED BY PETITIONERS DARRYL WONG, ET AL
+

JAMES S. BURLING
* R. S. RADFORD
DANIEL T. FITZPATRICK
*Counsel of Record
Pacific Legal Foundation

2151 Riv
Yelateall pera ep IVED
Pacife LigalfPoundenfse > — g 1995
OFFICE Ui ThE CLERK

UuRi. U.S.

x
QUESTIONS PRESENTED FOR REVIEW

1. Is the City of Carson’s Administrative Resolu-
tion 91-014, which conditions the City of Carson’s issuance
of a permit to terminate month-to-month tenancies and close
the Avalon-Carson Mobile Home Park on the owners’
payment of more than $1.4 million dollars to park tenants for
mobile home coaches, moving expenses, dislocation fees, and
stipends for low-income seniors and disabled tenants, a
regulatory or physical taking, or both, under the Fifth
Amendment of the United States Constitution?

2. Does the City of Carson’s Administrative
Resolution 91-014, which functionally requires the park
owner to refund to tenants all of the profits the park owner
has made, violate substantive due process in that it
unreasonably deprives park owners of their "fair return" to
which they are entitled under Carson’s Rent Control
Ordinance?

|

oi.

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIOS 65-6. CA iv
INTER. CF BOGS. o:c's 3:5 8b ee eee eee l
CPTI. DAPI sais cles 640s ba ee ee 4
STATERters OF Tee CASS 66 ccc ence eee eee ess 4
AIUUIOGIT «0.06 0a) bene 38 ae 654 6
I. THIS CASE PRESENTS AN
OPPORTUNITY FOR THIS COURT
TO CLARIFY THE PROPER ANALYSIS
FOR DETERMINING A COMPENSABLE
TAKING AND TO RESOLVE THE
PRESENT CONFLICT AMONG
Vea RUMSE 805-7 e eR CER ee eer 6
A. A Great Deal of Confusion Has
Arisen Among the State and Federal
Courts With Respect to the Proper
Analysis for Determining
=o Comeeee Sa a 6 Soo 0 Kae eee 7

B. The State Courts of California
Have Consistently Refused to
Apply the Heightened Standards of
Review Set Forth by This Court
in Nollan v. California Coastal
Commission and Dolan v.
Ay OF TOE 66s eS howe a eree nea 12

- iti -
Page

of A Conflict Between the New York
and California Courts Exists
Because New York Follows This
Court’s Nollan and Dolan
Decisions While California Does
0 a a re 14

II. THE APPELLATE COURT FAILED TO
APPLY HEIGHTENED SCRUTINY
AND, HAD IT DONE SO, WOULD
HAVE FOUND A COMPENSABLE
TAKING UNDER EITHER PRONG
ei. gies ut Few wit ee os ee ere 15

A. The Lower Court Did Not
Apply Heightened Scrutiny
EE a 15

B. The Conversion Ordinance
Fails to Substantially
Advance a Legitimate State
eae ae eee eae 16

C. Resolution No. 91-014
Deprives the Wongs of
Economically Viable Use
ee ee ee ee ee 18

D. The City’s Park Closure
Conditions Unfairly Require
the Wongs to Bear a General
ee ee a ee ee 19

I a 20

-iv-

TABLE OF AUTHORITIES CITED

Agins v. City of Tiburon,
Cl a BE CE oe eee Rae ee

Armstrong v. United States,
Se I 6 ono 6.46 Vices wheaes

Blue Jeans Equities West v.
City and County of San Francisco,
> Cal. Amp. 40 UGS CISFE) «cc veces

City of Pompano Beach v. Yardarm
Restaurant, 641 So.2d 1377
is. TE Es BO ee ee Sern ts

City and County of San Francisco v.
Golden Gate Heights Investments,
14 Cal. App. 4th 1203 (1993) ............

Commercial Builders v. City of
Sacramento, 941 F.2d 872 (9th Cir.
1991), cert denied, 118 L. Ed.
ye ee ere a er ee rea oe

Del Oro Hills v. City of
Oceanside, 31 Cal. App. 4th 1060

| Beane eee aa ene eas ee

Dolan v. City of Tigard,
SiIZUS. , OL.
a. A ee ee ce adda eee

Page

. 2-3,6-9,16

Page

Ehrlich v. City of Culver City,
15 Cal. App. 4th 1206 (1993),
cert. granted and judgment
vacated, 129 L. Ed. 2d 854
ES a ee ee eer ee eee 2 en eo 12

Eide v. Sarasota County,
COR F.26 716 (11 Cer, 1990). wc ccc ee teneves 9

Esposito v. South Carolina
Coastal Council, 939 F.2d 165
SE Pe eer ee ere ere ee ee 10

First English Evangelical
Lutheran Church of
Glendale v. County of
Los Angeles, 482 U.S.
OD © aa og Sw asis 4s 90.40.0150 8 Se ee Et 2,13

Gardner v. New Jersey Pinelands
Commission, 593 A.2d 251
RGA A Oe eee ee oer eee ee Ce 8

Gerijo, Inc. v. City of Fairfield,
638 N.E.2d 533 (Ohio 1994)... ce cc tees 9,11

Halverson v. Skagit County,
42 F.3d 1257 (Sth Cir. 1995) ... 1... cece cere eens 10

Hodel v. Virginia Surface Mining
and Reclamation Association, Inc.,
PRS mm eee ane e ee oa 2 18

Kelly v. Tahoe Regional Planning
Agency, 855 P.2d 1027
ie, COD. bowed OR 6 Wed on 60 eb ea 4 REA 8

- Vi -

Keystone Bituminous Coal
Association v. DeBenedictis,
480 U.S. 470 (1987) ........

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

Lucas v. South Carolina
Coastal Council,
505 U.S. __, 120 L. Ed.
r i § i): re

Manocherian v. Lenox Hill
Hospital, 643 N.E.2d 479
4 SS. | er a re

McAndrews v. Fleet Bank of
Massachusetts, 989 F.2d 13
te

McDougal v. County of Imperial,
942 F.2d 668 (9th Cir. 1991) ..

Miller v. Columbia River Gorge
Commission, 848 P.2d 629
(Or. Ct. App. 1993) ........

Moore y. City of Costa Mesa,
886 F.2d 260 (1989) ........

Nollan y. California Coastal
Commission, 483 U.S. 825
(1987) ............02 0 ee

Page

- Vil -
Page

Parking Association of Georgia,
Inc. v. City of Atlanta,
Georgia, U.S. 132L.
Ed. 2d 273 (May 30, 1995) .......-- ee eee eeee 3,7,13

Penn Central Transportation Co. v.
New York City, 438 U.S. 104
SEE a vea ke Che eee ea Ke eRe ree ROA eee es 10

Pennsylvania Coal Co. v. Mahon,
, fk a 2.» ree eee ee 20

Reahard v. Lee County,
968 F.2d 1131 (11th Cir. 1992) ..... aaa 1]

Saad v. City of Berkeley, 24 Cal.
App. 4th 1206 (1994) .. 0... eee eee ee eee 12

Schultz v. City of Grants Pass,
884 P.2d 569 (Or. Ct. App.
MD kets 668-6 owes

Seawall Associates v. City of
New York, 542 N.E.2d 1059
i eee ere eee ee ee 2 7,14

Southview Associates, Ltd. v.
Bongartz, 980 F.2d 84
ie ae Se eee ee ea ke 10

Tahoe Keys Property Owners’
Association v. State Water
Resources Control Board,
23 Cal. App. 4th 1459 (1994) ........--- eee eee 12

United States v. General Motors
Corp., 323 U.S. 373 (1945) .....---- eee ee eres: 18

- Vill -
Page

Westwinds Mobile Home Park v.

Mobilehome Park Rental Review

Board, 30 Cal. App. 4th 84 (1994) ............... 13
Whitehead Oil Co. v. City of

Lincoln, 515 N.W. 2d 401

ee a et oes so be 6 abe 8-5-0 S88 OO 8
Woodbury Place Partners v.

City of Woodbury, 492 N.W.2d

ee ee 10
Yee v. City of Escondido,

503 U.S. _, 118 L. Ed. 2d

SUD So Shel are a a old ao 5b ew + 0.418. 8 » 084 2,12

Statutes

Ce ee ee Oe Sawa scer ees eee eeuet 4

EE ideas dog aed gos e oo 6 be 8 ve 8 0 68 84 19
Gov't Code § 65863.7-65863.8 ..........005 ee eeee 4

IG ae oaks eg bb wee 66-6 s eee seein ete ae 17

a ee ee rk ee eee eee oe ye a 5
Honlth & Safety § 1G200-1S70O ww ccc rece cc cens 4

Regulations

y RS ee Be or rear ar 6

a

No. 95-241

-

In the
Supreme Court of the United States

October Term, 1995
+

DARRYL WONG, WILLIE WONG,
and DELPHINE WONG,
Petitioners,
v.

CITY COUNCIL OF THE CITY
OF CARSON and PLANNING
COMMISSION OF THE CITY OF CARSON,
Respondents.
+

Petition for a Writ of
Certiorari to the California Court
of Appeal for the Second Appellate District
+

BRIEF AMICUS CURIAE OF
PACIFIC LEGAL FOUNDATION IN
SUPPORT OF PETITION FOR CERTIORARI
FILED BY PETITIONERS DARRYL WONG, ET AL
+

INTEREST OF AMICUS CURIAE

PLF is a nonprofit, tax-exempt corporation organized
under the laws of the State of California for the purpose of
litigating in cases affecting the public interest. PLF has over
20,000 contributors and supporters located throughout the

“bi

Se

country and maintains its principal office in Sacramento,
California.

PLF has participated in numerous cases involving issues
arising under the Takings and Due Process Clauses of the
Fifth and Fourteenth Amendments to the United States
Constitution. Its attorneys were counsel of record in the
landmark United States Supreme Court case Nollan v.
California Coastal Commission, 483 U.S. 825 (1987), and
PLF participated as amicus curiae in Lucas v. South Carolina
Coastal Council, 50S U.S. __, 120 L. Ed. 2d 798 (1992);
Yee v. City of Escondido, 503 U.S. __, 118 L. Ed. 2d 153
(1992); Keystone Bituminous Coal _ Association v.
DeBenedictis, 480 U.S. 470 (1987); and First English
Evangelical Lutheran Church of Glendaie v. County of
Los Angeles, 482 U.S. 304 (1987). Because of its public
policy perspective and experience, Pacific Legal Foundation
believes it can provide additional insight with respect to the
issues before this Court in the present case. Pursuant to
Rule 37.3, written permission from all parties to file this
brief has been lodged with the clerk of the Court.

Given PLF’s extensive involvement in cases concerning
the Takings and Due Process Clauses of the Fifth and
Fourteenth Amendments, PLF is particularly interested in
ensuring that the bedrock principles of this Court are not
eroded by implausible interpretations of takings case law by
state or federal circuit courts. In Nollan v. California
Coastal Commission, 483 U.S. 825, this Court reaffirmed the
bright-line, two-part test set forth in Agins v. City of Tiburon,
447 U.S. 255, 260 (1980), that land use regulations will
effect a taking if they fail to "‘substantially advance
legitimate state interests,’" or if they “‘den[y] an owner
economically viable use’" of property. Nollan, 483 U.S.
at 834 (quoting Agins v. City of Tiburon, 447 U.S. at 260
(brackets in original)). The two prongs of the test are stated
in the disjunctive; either is sufficient to establish a regulatory
taking without further analysis. See, e.g., Nollan v.

me

California Coastal Commission, 483 U.S. 825 (striking down
a regulatory exaction under a first-prong Agins challenge);
Lucas v. South Carolina Coastal Council, 120 L. Ed. 2d 798
(striking down a regulation under a second-prong Agins
challenge). Moreover, this Court has clearly established that
land use regulations challenged under the Takings Clause
must be subjected to a heightened standard of judicial review.
Nollan, 483 U.S. at 836 n.3.

Members of this Court have expressed dismay about the
difficulties which lower courts routinely encounter in
attempting “to make sense of th[{e] tension in [this Court’s
takings] caselaw." Parking Association of Georgia, Inc. v.
City of Atlanta, Georgia, __ U.S. ___, 132 L. Ed. 2d 273
(May 30, 1995), denial of petition for writ of certiorari,
Thomas, J. and O’Connor, J., dissenting. The case at bar
clearly illustrates the struggles of the lower courts in dealing
with “the confused nature of some of [this Court’s] takings
case law....". Id. The decision below upheld an exorbitant
financial exaction by the City of Carson that violated both
prongs of Agins. The exaction failed to substantially advance
a legitimate state interest and deprived petitioners of an
economically viable use of their land. In considering
whether the exaction was an unconstitutional taking, the court
below merely paid lip service to Nollan and declined to
engage in even the most cursory analysis.

"{T]he fact-specific nature of takings claims has led
[this Court] to grant certiorari in takings cases without the
existence of a conflict." Parking Association of Georgia,
132 L. Ed. 2d 274. Amicus Pacific Legal Foundation will
illustrate that there is a significant conflict between the
California courts and New York courts with respect to the
proper application of Nollan and Dolan. This case presents
this Court with an opportunity to clarify and expound on the
regulatory takings doctrine of Nollan and Dolan and to
resolve the current conflict between the state courts.

So

a

OPINION BELOW

The dismissal of the case by the California Supreme
Court is attached to petitioner’s Petition for Writ of
Certiorari, filed August 9, 1995. The unpublished opinion
of the California Court of Appeal is attached to petitioners’
Petition for Writ of Certiorari. The Court of Appeal held,
inter alia, that the City of Carson (City) may require
petitioners, who paid $1.7 million for a mobile home park,
to pay more than $1.4 million to the resident mobile home
owners as a condition of closing this mobile home park. The
appellate court recognized the applicability of Nollan v.
California Coastal Commission, yet found that a condition
which virtually extinguished petitioners’ investment was not
an unconstitutional taking.

.

STATEMENT OF THE CASE

Darryl, Willie, and Delphine Wong are owners of the
Avalon Carson Mobile Home Park in the City of Carson.
They acquired the property in June, 1979, and since that time
have operated it as a mobile home park. The park contains
172 spaces, most of which are leased to mobile home owners
for a monthly rental fee. Administrative Record (AR) 106,
6535.

Mobile home parks in California are a heavily regulated
industry. Comprehensive statewide regulations include the
Mobilehome Residency Law (Civ. Code § 798, et seq.) and
the Mobilehome Parks Act (Health and Safety Code
§§ 18200 to 18700). In addition, park owners seeking to
convert their property to another use must comply with
Government Code §§ 65863.7 to 65863.8 and other
provisions. Local governments are authorized to require
park owners to mitigate the impact of park closures on the

7

ability of displaced residents to find replacement housing,
but such mitigation cannot exceed the reasonable costs of
relocation. Gov’t Code § 65863.7(e).

Shortly after the Wongs purchased their mobile home
park, the City added to this existing matrix of regulation by
adopting a mobile home rent control ordinance. The
purposes of the park closure conditions promulgated by this
ordinance include “protect[ing] the investment of mobile
home coach owners, while allowing park owners to change
the use of the[ir] property without incurring unreasonable
burdens." Resolution No. 91-014, §4(D), Petition for Writ
of Certiorari Appendix (App.) 32. (emphasis added.)

In March, 1988, the Wongs applied for permission to
close the Avalon Carson Mobile Home Park. After a lengthy
series of hearings and related procedures, the City agreed to
the proposed closure only upon the condition that the Wongs
comply with "mitigation" measures set forth in a document
entitled Resolution No. 91-014. App. 23. This resolution,
adopted by the City on March 19, 1991, requires the Wongs
to make cash payments totaling $1,430,295 to mobile home
coach owners residing in their park, almost equal to the $1.7
million purchase price of the park paid by the Wongs.
AR 7, 161. The City’s price for allowing the Wongs to go
out of business exceeds all the profit the Wongs have earned
on space rentals during their entire 16-year ownership of the
park. Petition for Writ of Certiorari at 20.

The Wongs challenged the City’s park closure
conditions on the grounds that, inter alia, they effected a
taking of the Wongs’ property without just compensation,
in violation of the Takings Clause of the Fifth Amendment.
The trial court denied the Wongs’ petition for a writ of
administrative mandamus and dismissed their complaint for
damages against the City. The Court of Appeal affirmed in
an unpublished opinion. The California Supreme Court
granted review on May 12, 1994. On May 11, 1995, the

<8s

California Supreme Court dismissed the case without
decision, thereby invoking the jurisdiction of this Court,
pursuant to 28 U.S.C. § 1257(a).

This case screams for review by this Court. The
Wongs invested a substantial portion of their personal
resources in this mobile home park and have struggled for
16 years under the City’s onerous rent controls to try to
make the operation a reasonable economic venture. Only
after many years of effort did they conclude that further
struggles would be fruitless. The lower court decision forces
the Wongs to distribute the monetary value of their property
among their tenants as the price of going out of business.
Aside from the patent inequities of this situation, this Court
should also review this case because it offers the unique
opportunity to clarify the proper method for reviewing
takings claims under the bright-line, two-prong test of Agins,
as set forth in Nollan and Dolan.

7

ARGUMENT
I

THIS CASE PRESENTS AN OPPORTUNITY FOR
THIS COURT TO CLARIFY THE PROPER
ANALYSIS FOR DETERMINING A
COMPENSABLE TAKING AND TO RESOLVE
THE PRESENT CONFLICT AMONG THE STATES

The appropriate framework for evaluating regulatory
takings claims was established by this Court in Agins v. City
of Tiburon: “The application of a general zoning law to
particular property effects a taking if the ordinance does not
substantially advance legitimate state interests [citation], or
denies an owner economically viable use of his land
[citation]." 447 U.S. at 260 (emphasis added). This two-
prong approach for establishing a taking, either by a showing
that the regulation does not substantially advance a legitimate

>

state interest ("first-prong Agins challenge") or by showing
a denial of economically viable use of land ("second-prong
Agins challenge"), has been reiterated by this Court in nearly
every regulatory takings case in the last 15 years. Numerous
state decisions and dozens of federal cases have also recited
and relied on the disjunctive Agins test.

Regulatory takings have been found under either prong
of Agins. See, e.g., Nollan v. California Coastal
Commission, 483 U.S. 825 (striking down a regulatory
exaction under a first-prong Agins challenge); Lucas v. South
Carolina Coastal Council, 120 L. Ed. 2d 798 (striking down
a regulation under a second-prong Agins challenge). In the
case at bar, neither prong of the Agins test revealed a
regulatory taking because the Court of Appeal failed to even
apply the test!

A. A Great Deal of Confusion Has Arisen
Among the State and Federal Courts
With Respect to the Proper Analysis
for Determining a Compensable Taking

"The lower courts should not have to struggle to make
sense of th[e] tension in [this Court’s takings] case law."
Parking Association of Georgia, Inc. v. City of Atlanta,
Georgia, 132 L. Ed. 2d 273, denial of petition for writ of
certiorari, Thomas, J. and O’Connor, J., dissenting. Lower
state and federal courts have fallen into conflict and
confusion in their application of Agins to regulatory takings.
At least six different variations of the Agins test have arisen,
leading to unpredictable and arbitrary outcomes of takings
issues, thereby necessitating further guidance from this
Court.

Some courts properly apply the disjunctive Agins test
and recognize that satisfaction of either prong of Agins
suffices to constitute a regulatory taking. Seawall Associates
v. City of New York, 542 N.E.2d 1059 (N.Y. 1989),
exemplifies the line of cases supporting the disjunctive

~

application of the Agins test.' The New York Court of
Appeals struck down a regulation of rental property because
the challenged law did not substantially advance legitimate
state interests and denied plaintiffs economically viable use
of their property. Jd. at 1069. The Court of Appeals held
that, under either prong of the Agins test, the regulation was
invalid and constituted a regulatory taking. Jd. at 1068-69.
Conversely, in the case at bar, the Court of Appeal failed to
apply either prong of the Agins test to the regulation at issue,
instead analogizing to condominium conversion cases which
had upheld relocation assistance conditions. App. 4-5.
Because the appellate court saw “no reason why the result
ought to be different in the context of mobilehomes"
(App. 5), no Agins analysis was done.

Other courts have found a regulatory taking under the
first prong of the Agins test without proceeding to analyze the
second prong. Manocherian v. Lenox Hill Hospital,
643 N.E.2d 479 (N.Y. 1994), represents this line of
disjunctive application cases.”

' See also McDougal v. County of Imperial, 942 F.2d 668, 677
(9th Cir. 1991) (reciting disjunctive Agins test in negative voice);
Kelly v. Tahoe Regional Planning Agency, 855 P.2d 1027, 1033
(Nev. 1993) (reciting disjunctive Agins test); Miller v. Columbia
River Gorge Commission, 848 P.2d 629, 630 and 630 n.1 (Or. Ct.
App. 1993) (acknowledging that taking occurs if either prong of
Agins test is satisfied); Gardner v. New Jersey Pinelands
Commission, 593 A.2d 251, 257 (N.J. 1991) (reciting disjunctive
Agins test in negative voice).

2 See also Schultz v. City of Grants Pass, 884 P.2d 569, 573 (Or.
Ct. App. 1994) (holding that imposed exaction of land was
regulatory taking because exaction did not relate to impact of
plaintiffs’ proposed development); Whitehead Oil Co. v. City of
Lincoln, 515 N.W.2d 401 (Neb. 1994) (holding that arbitrary and
capricious government action did not advance legitimate state
interest and thus was regulatory taking).

icin ial ii ili a ail

= PE

Despite this Court’s clear statements and
demonstrations that the two-part Agins analysis is a
disjunctive test, some courts have applied the two prongs in
the conjunctive. Under this approach, no taking is found
unless the plaintiff has satisfied both prongs. Thus, under
the conjunctive application, one who alleges a regulatory
taking must prove both that the regulation fails to
substantially advance a legitimate state interest and that the
regulation denies the owner economically viable use of her
property. An example of this approach is Del Oro Hills v.
City of Oceanside, 31 Cal. App. 4th 1060 (1995). This
clearly erroneous interpretation of this Court’s regulatory
takings doctrine has also been adopted in other states. See
Gerijo, Inc. v. City of Fairfield, 638 N.E.2d 533 (Ohio 1994)
(applying conjunctive Agins test).

A few courts have analyzed the first prong of the Agins
test as a substantive due process claim. As with the
conjunctive interpretation, however, this method consistently
requires satisfaction of the second prong in order to find a
regulatory taking that merits just compensation. An example
of this approach is Eide v. Sarasata County, 908 F.2d 716
(11th Cir. 1990).

Still other courts have applied both a substantive due
process and a takings analysis. This method permits first
prong Agins claims under either the “arbitrary and capricious
due process” theory or the Fifth Amendment takings theory.
This approach highlights the difference in standards of
review between a due process claim and a takings claim and
demonstrates how applying an exclusive due process theory
to a takings claim permits lower courts to elude Nollan’s
heightened standard of review for takings claims. Avoidance
of the "essential nexus" test set out in Nollan, 483 U.S.
at 837, places the burden of proof for takings claims on
property owners. According to this Court’s decision in
Dolan v. City of Tigard, 512 U.S. __, 129 L. Ed. 2d 304

+. F

(1994), however, the burden of proof for such claims
properly lies with the government. /d. at 320. The
nonexclusive substantive due process analysis was applied in
Southview Associates, Lid. v. Bongartz, 980 F.2d 84 (2d Cir.
1992). See also Halverson v. Skagit County, 42 F.3d 1257,
1261 (9th Cir. 1995) (stating that facts which form basis of
“arbitrary and capricious due process” claim may also form
basis of takings claim). This flawed method may bear the
closest resemblance to the appellate court’s analysis in the
case at bar where the court declined to undertake any type of
takings analysis and simply asserted that a due process attack
is not appropriate "unless the restriction is clearly arbitrary
and unreasonable....". App. 6 (emphasis added).

Other courts apply a “balancing” test, which either
subsumes or completely ignores the two-prong Agins test.
This application effectively analyzes the second prong of the
Agins test under the three-part balancing test set out in Penn
Central Transportation Co. v. New York City, 438 U.S. 104,
124 (1978) (balancing the economic impact of the regulation
on the claimant, its interference with investment-backed
expectations, and the character of the government action).
Courts applying the balancing test either ignore the first
prong of Agins, or they conclude that plaintiff has failed to
satisfy the first prong. See McAndrews v. Fleet Bank of |
Massachusetts, 989 F.2d 13 (ist Cir. 1993); Esposito v. |
South Carolina Coastal Council, 939 F.2d 165, 170-71 |
(4th Cir. 1991) (applying Penn Central balancing test to
analyze second prong of Agins test after determining that
plaintiff has failed to satisfy first prong); Woodbury Place
Partners v. City of Woodbury, 492 N.W.2d 258, 262 (Minn.
Ct. App. 1993) (remanding to District Court to determine
existence of regulatory taking under "economically viable
use” analysis in light of Penn Central balancing test).

Finally, some courts use second prong takings analysis
exclusively, calling the first prong irrelevant. Among cases

ie ee AEM ey

» iti

subscribing to the second prong application, Reahard v. Lee
County, 968 F.2d 1131 (11th Cir. 1992), provides a unique
analysis. See also, Moore v. City of Costa Mesa, 886 F.2d
260, 263 (1989) (restricting takings analysis to second prong
of Agins test despite lower court’s finding that challenged
regulation was invalid but not unconstitutional); City of
Pompano Beach v. Yardarm Restaurant, Inc, 641 So.2d
1377, 1384 (Fla. Dist. Ct. App. 1994) (court finds second
prong argument, based on an alleged invalid exercise of the
police power, insufficient for a takings, noting that the trial
court’s embrace of an Agins’ first prong takings analysis was
simply “an understandable error given that ‘takings’ law is
one of the most confused areas in American jurisprudence. ").

It may be that the Court of Appeal in the case at bar
has created yet another method of analysis, where no type of
takings analysis need even be done because the use of the
property in question (here, a mobile home park) can be
analogized to other uses on other properties (such as
condominium conversions), where no regulatory taking has
been found. App. 4-6.

These various applications of the Agins test breed
varying and unpredictable results, even when applied to the
same fact situation. For example, if the court in Gerijo,
Inc. v. City of Fairfield, 638 N.E.2d 533, had applied a
disjunctive instead of conjunctive analysis, the plaintiff could
likely have established a regulatory taking because the
challenged ordinance failed to advance a legitimate state
interest. Gerijo, 638 N.E.2d at 537. No further analysis
would have been necessary. Further guidance from this
Court regarding a uniform application of the Agins test would
alleviate the unpredictability prevalent in current takings
doctrine.

-12-

B. The State Courts of California
Have Consistently Refused to Apply
the Heightened Standards of Review Set
Forth by This Court in Nollan v. California
Coastal Commission and Dolan v. City of Tigard

Instead of accommodating the mandate of this Court,
the California judiciary responded to Nollan’s requirement
for a heightened standard of review by mischaracterizing the
decision as a physical invasion case which did not apply to
regulatory takings. The most notorious example in this line
of decisions is Blue Jeans Equities West v. City and County
of San Francisco, in which the California Court of Appeal
proclaimed that Nollan applies only to "possessory” takings--
even though no such term appears in the text of Nollan or in
any other decision ever issued by this Court! 3 Cal. App.
4th 164, 169 (1992).

Although the Blue Jeans Equities holding was flatly
preposterous on its face, it has been embraced by a majority
of California’s appellate districts as a means to avoid
applying Nollan’s requirement of heightened scrutiny to
property regulations. See Tahoe Keys Property Owners’
Association v. State Water Resources Control Board, 23 Cal.
App. 4th 1459 (1994); Saad v. City of Berkeley, 24 Cal.
App. 4th 1206 (1994); Ehrlich v. City of Culver City, 15 Cal.
App. 4th 1737 (1993), cert. granted and judgment
vacated, 129 L. Ed. 2d 854 (1994); City and County of
San Francisco v. Golden Gate Heights Investments, 14 Cal.
App. 4th 1203 (1993); see also Commercial Builders v. City
of Sacramento, 941 F.2d 872 (9th Cir. 1991), cert. denied,
118 L. Ed. 2d 593 (1992) (stating that Nollan did not
“chang[e] the level of scrutiny to be applied to regulations
that do not constitute a physical encroachment on land").

Even after this Court’s express citation to Nollan as the
standard applicable to nonphysical takings in Yee v. City of
Escondido, __ U.S. ___, 118 L. Ed. 2d at 167, California

A a cma
a ee A ce

8

courts have persisted in following the erroneous doctrine of
Blue Jeans Equities, interpreting “possessory taking" to
denote what the Supreme Court has always called a physical
taking. See, e.g., Westwinds Mobile Home Park y.
Mobilehome Park Rental Review Board, 30 Cal. App. 4th 84,
90 (1994) (refusing to apply Nollan to a regulatory takings
case and asserting that “Nollan involved a statute which
physically appropriated property"--despite the fact that no
statute of any kind was at issue in Nollan, and no physical
appropriation of property occurred or was alleged by either
party).

The California judiciary’s hostility to the Fifth
Amendment rights of property owners should be no surprise
to this Court. In First English Evangelical Lutheran
Church v. County of Los Angeles, this Court noted that "the
California courts have decided the compensation question
inconsistently with the requirements of the Fifth
Amendment.” 482 U.S. at 311. Similarly, in Nollan y.
California Coastal Commission, this Court noted that its
approach to regulatory takings “is consistent with the
approach taken by every other court ... with the exception of
the California state courts." Jd. at 839.

Since this Court’s decision in Dolan vy. City of Tigard,
129 L. Ed. 2d 304, some members of this Court have
continued to express frustration at the "confused nature of
some of [this Court’s] takings case law" and have observed
that certiorari has been granted "in takings cases without the
existence of a conflict." Parking Association of Georgia,
Inc. v. City of Atlanta, Georgia, 132 L. Ed. 2d 273, denial
of petition for writ of certiorari, Thomas, J. and O’Connor,
J., dissenting. There is no such absence of conflict in this
case because California has consistently misapplied the
takings analysis carefully developed by this Court and, as
shown above, this misapplication has been gaining an
increased acceptance among state and federal circuit courts.
Further, the recalcitrance of the California indiciary has

.

created a direct conflict with New York state courts because
those courts have followed the dictates of Nollan and Dolan.

C. A Conflict Between the New York and
California Courts Exists Because New
York Follows This Court’s Nollan and
Dolan Decisions While California Does Not

In addition to conflicting with the holdings of this
Court, the regulatory takings decisions of the state courts of
California have come into direct conflict with the New York
State Court of Appeals on federal takings issues. This
conflict between the courts of the most populous states of the
Union on federal constitutional questions can only be
resolved by a timely and forceful ruling by this Court.

In contrast to the labored efforts of the California
judiciary to evade this Court’s teaching in Nollan and Dolan,
the highest court of the State of New York has applied the
heightened standards of review set forth in these cases to
strike down overzealous regulation of private property both
facially and as applied. While the California Court of
Appeal was evading Nollan by concocting the “possessory
takings” doctrine of Blue Jeans Equities, the New York State
Court of Appeals promptly acknowledged that

the "close nexus" test ... requires "semi-strict or
heightened judicial scrutiny of regulatory means-
ends relationships” as articulated in Nollan.

Seawall Associates v. City of New York, 542 N.E.2d at 1068.

Five years after Seawall, the New York Court of
Appeals applied this Court’s Dolan decision to find a
regulatory taking arising from a rent control measure in
Manocherian v. Lenox Hill Hospital, 618 N.Y.S.2d 857.
Applying the heightened scrutiny required by this Court, the
New York panel observed that Nollan and Dolan “establish
a constitutional minimum floor of protection which this

Ee

~ ai

Court lacks authority to diminish under the supremacy
clause." 618 N.Y.S.2d at 860 (emphasis added).

) In sharp contrast to the New York court’s regard for
| the Supremacy Clause, California has responded to Dolan by
concocting a new rationale to evade this Court’s regulatory
takings doctrine. The case at bar exemplifies such evasion,
where this Court’s Nollan ruling was cited but not discussed.
Instead, the appellate court summarily concluded that “{oJur
courts have routinely upheld relocation assistance conditions
imposed when an apartment owner seeks permission to
convert to condominiums (citations) and we see no reason
why the result ought to be different in the context of
mobilehomes." App. 4-5. By failing to apply Nollan and
Dolan, the court below has come into direct conflict with the
state courts of New York, as well as this Court.

II

THE APPELLATE COURT FAILED TO APPLY

HEIGHTENED SCRUTINY AND, HAD IT DONE

SO, WOULD HAVE FOUND A COMPENSABLE
TAKING UNDER EITHER PRONG OF AGINS

A. The Lower Court Did Not Apply
Heightened Scrutiny to the Condition

In erroneously upholding the validity of Resolution
No. 91-014, the court below fundamentally misconstrued the
legal question that was before it. By framing the issue as
"whether the relocation assistance conditions imposed by the
City of Carson are reasonable," App. 5, the Court of Appeal
invoked a deferential standard of review which has been
twice repudiated by this Court. Instead of applying
heightened scrutiny to the City’s park closure conditions, the
appellate court merely held that "substantial evidence
supports the trial court’s findings" that the park closure
conditions did not comprise a taking. As this Court well
knows, such a deferential standard is wholly inadequate for

th.

a regulatory takings challenge, and constitutes independent
grounds for reversal.

The conclusory, highly deferential analysis of the court
below directly contravenes the constitutional mandate of this
Court as expressed in Nollan and Dolan. The Court of
Appeal’s failure to apply any semblance of heightened
scrutiny to the City’s park closure conditions was erroneous
in itself, and contributed to a clearly erroneous finding of
constitutionality.

B. The Conversion Ordinance Fails to
Substantially Advance a Legitimate State Interest

Regardless of its economic impact, a land use
restriction will constitute a taking if it fails to “substantially
advance legitimate state interests." Agins v. Tiburon, |
447 U.S. at 262. This rule was first given analytical |
substance in Nollan v. California Coastal Commission, |
483 U.S. 825. |

As set forth in Nollan, a legitimate state interest is one
directly related to a public burden that would be created by |
the proposed land use, which would justify outright denial of :
the property owner’s application. Nollan, 483 U.S. at 835-
37. Substantial advancement means directly mitigating that |
public burden.

In the case at bar, the City is requiring the Wongs to |
pay more than $1.4 million as a condition of closing their
mobile home park. The ostensible purposes of the City’s
park closure conditions are recited in Resolution No. 91-014.
These include "protect[ing]” the investment of mobile home
coach owners, while allowing park owners to "change the
use of the[ir] property without incurring unreasonable
burdens.” The record indicates that the appraised value of
the subject coaches, including all improvements, is $641,859.
Thus, even if the Wongs were responsible for insuring their
residents against any risk of loss, the maximum liability this
could generate is less than 50% of the $1.4 million demanded |

——————

se

by the City. In essence, the City is requiring the Wongs to
pay each of their residents 100% of the market value of their
mobile home coaches--plus an additional $650,000 to ransom
the Wongs’ own property! Such a requirement flies in the
face of the "rough proportionality” test of Dolan.

Rather than engaging in close scrutiny of Resolution
No. 91-014 as required by Nollan and, rather than requiring
the City to carry its burden of proof as required by Dolan,
the Court of Appeal upheld the City’s conditions without
even bothering to examine their impact. The Court of
Appeal’s inquiry began and ended with a recitation of
Government Code § 65863.7. App. 5. It was, however,
"the City’s RIR ordinance that was the issue in the case
(App. 2), not Government Code § 65863.7. Having
determined that state law authorizes relocation fees not
exceeding "reasonable costs of relocation," the appellate
panel immediately proclaimed that Resolution No. 91-014
substantially advances a legitimate state interest. Jd. The
actual impact of the City’s conditions was not even
examined!

This Court’s requirement that challenged regulations
must substantially advance legitimate state interests requires
more than a mere genuflection toward the government’s
police power. In Nollan, this Court looked past the Coastal
Commission’s avowed objective and found that the actual
purpose served by its permit condition was, “quite simply,
the obtaining of an easement to serve some valid govern-
mental purpose, but without payment of compensation."
483 U.S. at 837. Comparable scrutiny of Resolution No. 91-
014 would reveal that its purpose and effect is simply to
transfer a valuable property interest from mobile home park
owners to the coach owners who reside on their land. It
cannot seriously be argued that such a special interest
transfer, extorting assets from one class of property owners
and shifting them to another, complies with the “substantial

- 18 -

advancement" test as that standard has been set forth in
Nollan and Dolan.

C. Resolution No. 91-014 Deprives the Wongs
of Economically Viable Use of Property

Turning to the second prong of the regulatory takings
inquiry, this Court has made it clear that land use restrictions
which deprive owners of economically viable use of their
property will violate the Takings Clause regardless of the
merits of the state interests which they may advance.
Lucas v. South Carolina Coastal Council, 120 L. Ed. 2d
798; Hodel v. Virginia Surface Mining and Reclamation
Association, Inc. , 452 U.S. 264, 295-96 (1981); Kirby Forest
Industries, Inc. v. United States, 467 U.S. 1, 14 (1984). The
Court of Appeal committed yet another fundamental error by
failing to subject Resolution No. 91-014 to this
constitutionally mandated, independently sufficient test for a
regulatory taking.

There can be no doubt that the Wong’s right to occupy
a rent-controlled space on their land in perpetuity is a
protected property interest under the Takings Clause. This
Court has defined the interests subject to constitutional
protection as all those rights inhering in an individual’s
relation to the thing owned, including the rights of
possession, use, and disposal. United States v. General
Motors Corp. , 323 U.S. 373, 378 (1945). Protected property
interests include not just fee interests and leaseholds, but
"every sort of interest the citizen may possess." Jd.

Requiring the Wongs to make cash payments to recover
the value of their own property graphically demonstrates that
the City has deprived the Wongs of any economically viable
use of this valuable property interest. Under the clear
standards laid down by this Court, this deprivation violates
the Takings Clause in and of itself, without regard to the
legitimacy of the governmental purposes which might be
advanced thereby.

MM

D. The City’s Park Closure Conditions Unfairly
Require the Wongs to Bear a General Public Burden

The essential purpose of the Takings Clause is to place
a check on the government’s exercise of the police power at
the expense of individual rights. The ultimate question in
considering whether a regulation has gone too far is whether
it "forc[es] some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as
a whole." Armstrong v. United States, 364 U.S. 40, 49
(1960).

In addition to examining the nature of the state action
embodied in a regulation and its economic impact on prop-
erty owners, the Supreme Court has assigned primary
significance to this question of basic equity. The issue of
disproportionate impact permeates the Nollan and Dolan
decisions and underlies all of the specific "ad hoc” balancing
tests this Court has applied to the takings question.

In the case at bar, the conditions set forth in Resolution
No. 91-014 are intended to benefit a narrowly circumscribed
class of citizens, namely those persons of low or moderate
income whose principal asset is their mobile home coach.
No one would dispute that the protection of people whose
circumstances make them deserving of "unique protection”
is a worthy objective. See, e.g., Civ. Code § 798.55(a).
But that does not establish that the Wongs and other park
owners may be compelled to bear the full costs of such a
"comprehensive program." Nollan, 483 U.S. at 841.

For 15 years, the Wongs have provided affordable
housing for the residents of the Avalon Carson Mobile Home
Park. During this time, the City has continuously regulated
the Wongs’ property to ensure that their residents have
enjoyed rents below competitive market levels. In addition
to bearing this long burden, distributing the full value of
their own property to the residents of their park, or
ransoming the right to occupy their own land, grossly

- 2.

exceeds the Wongs’ rightful share of the societal burden of
providing affordable housing.

The issue is not whether special subsidies to mobile
home coach owners are worth the costs, but rather who
should pay. "[T]Jhe question at bottom is upon whom the
loss ... should fall." Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 416 (1922). As Justice Scalia concluded
regarding the governmental objective in Nollan, "[t]he
Commission may well be right that it is a good idea, but that
does not establish that the Nollans (and other coastal
residents) alone can be compelled to contribute to its ;
realization. ... [If California] wants an easement across the
Nollans’ property, it must pay for it." 483 U.S. at 841-42.
This conclusion is directly applicable to the case at bar. If
the City wants to redistribute the value of the Wongs’
property to the owners of mobile home coaches, it is
constitutionally required to pay for it.

CONCLUSION

For the foregoing reasons, amicus Pacific Legal
Foundation respectfully urges this Court to grant certiorari.

DATED: August, 1995.

a —=

Respectfully submitted,

JAMES S. BURLING :
*R. S. RADFORD
DANIEL T. FITZPATRICK
*Counsel of Record
Pacific Legal Foundation
2151 River Plaza Drive,
Suite 305
Sacramento, California 95833
Telephone: (916) 641-8888
Attorneys for Amicus Curiae
Pacific Legal Foundation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1635%3A4. Public record. Not legal advice.