Amicus Curiae Brief — Golden Gates Heights Investments v. City and County of San Francisco

MOTION FILED

sep 17 15

No. 93-274

In the

Supreme Court of the United States

October Term, 1993

+

GOLDEN GATE HEIGHTS INVESTMENTS,

Petitioner,

we

CITY AND COUNTY OF SAN FRANCISCO,

Respondent.

a

a de

Petition for Writ of

Certiorari to the California

First District Court of Appeal

,™

vr

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

+

RONALD A. ZUMBRUN

JAMES S. BURLING

*R. S. RADFORD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

No. 93-274

In the

Supreme Court of the United States

October Term, 1993

GEES

GOLDEN GATE HEIGHTS INVESTMENTS,

Petitioner,

v.

CITY AND COUNTY OF SAN FRANCISCO,

Respondent.

>

Petition for Writ of

Certiorari to the California

First District Court of Appeal

—-e—

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE

+

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves this court for leave to

file the accompanying brief amicus curiae in support of the

petition for writ of certiorari. Written consent to the filing

ii

of this brief has been granted by counsel for petitioner and

the letter of consent has been lodged with the clerk of this

Court. Consent has been withheld by counsel for respondent

City and County of San Francisco thereby requiring the filing

of this motion.

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in matters

affecting the public interest. PLF has over 20,000 contri-

butors and supporters located throughout the country and

maintains its principal office in Sacramento, California. The

Foundation’s policy is set by a Board of Trustees composed

of concerned citizens, the majority of whom are attorneys.

PLF’s Board evaluates the merits of any contemplated legal

action and authorizes such action only where the

Foundation’s position has broad support within the general

community.

Amicus seeks here to augment the argument in the

petition for writ of certiorari. It is believed that PLF’s

public policy perspective and litigation experience in support

of private property rights will provide an additional view-

point with respect to the constitutional issues presented. PLF

has participated in numerous cases involving issues arising

under the Takings arid Due Process Clauses of the Fifth and

Fourteenth Amendments to the United States Constitution.

iii

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,

505 U.S. __, 120 L. Ed. 2d 798 (1992); Yee v. City of

Escondido, 503 U.S. __, 118L. Ed. 2d 153 (1992);

Keystone Bituminous Coal Association y. DeBenedictis,

480 U.S. 470 (1987); Hodel v. Irving, 481 U.S. 704 (1987);

and First English Evangelical Lutheran Church of

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

The present case involves the use of predatory land

use policies by the City and County of San Francisco (City)

to justify the uncompensated physical appropriation of an

easement over petitioner’s land. The opinion below upholds

an eminent domain proceeding that deprives petitioner of

most of the value of its property. This deprivation was based

on the City’s assertion that the value of petitioner’s property

would otherwise have been diminished by the uncompensated

seizure of an easement via the application of restrictive land

use regulations.

The court below acquiesced in the City’s violation of

petitioners’ fundamental rights by refusing to apply

heightened scrutiny to the City’s actions, as required by this

Court in Nollan yv. California Coastal Commission. If

allowed to stand, the opinion below will constitute a serious

iV

setback for individual rights by undermining this Court’s

careful efforts over the past two decades to restore full

constitutional protection to private property rights.

Amicus firmly believes that review by this Court is

necessary to resolve the conflicts created by the California

courts in their efforts to avoid complying with Nollan.

DATED: September __, 1993.

Respectfully submitted,

RONALD A. ZUMBRUN

JAMES S. BURLING

*R. S. RADFORD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

By

R. S. RADFORD

Attorneys for Amicus Curiae,

Pacific Legal Foundation

Vv

TABLE OF CONTENTS

Page

CASES

TABLE OF AUTHORITIES CITED ........... vi

INTEREST OF AMICUS . 0. wc cc cscs ncesss |

STATEMENT OF THE CASE ............2--- 2

SUMMARY OF ARGUMENT .............--.- 3

PN ct) | i ee een a ee a ee ee 5

I. THE COURT BELOW ERRED IN NOT

APPLYING HEIGHTENED SCRUTINY TO

THE CITY’S SEIZURE OF AN EASEMENT

ACROSS PETITIONER’S LAND

II. | THE REFUSAL OF THE COURT BELOW

TO COMPLY WITH THIS COURT’S

NOLLAN MANDATE HAS DEPRIVED

PETITIONER OF FEDERAL CONSTITU-

TIONAL SAFEGUARDS GUARANTEED

TO ALL AMERICANS .....---ccccees 7

CONCLUSION

e ;

TABLE OF AUTHORITIES CITED

Page

CASES

Agins v. City of Tiburon,

Sn sg a ie Swede Oo eS 5

Blue Jeans Equities West v. City

and County of San Francisco,

3 Cal. App. 4th 164 (1992) ............. 8-9,i1

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982) ........... 5

Nollan v. California Coastal

é& Commission, 483 U.S. 825 (1987)........ 3-4,6-11

Yee v. City of Escondido, 503 U.S.

yy CEO hs ee EERO) 6 6 oe hk 8 es 4,9,11

UNITED STATES CONSTITUTION

ES See eS eee er er eae wes ee 5

MISCELLANEOUS

R. S. Radford, Statistical Error

and Legal Error, 21 Loy. L.A.

BC Sr rer ee 10

—

No. 93-274

In the

Supreme Court of the United States

October Term, 1993

+

GOLDEN GATE HEIGHTS INVESTMENTS,

Petitioner,

Vv.

CITY AND COUNTY OF SAN FRANCISCO,

Respondent.

So

Petition for Writ of

Certiorari to the California

First District Court of Appeal

+

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

+

INTEREST OF AMICUS CURIAE

The interest of amicus Pacific Legal Foundation

(PLF) is set forth in the preceding motion for leave to file

this brief.

2

STATEMENT OF THE CASE

In 1986 petitioner Golden Gate Heights Investments

(GGHI) bought an undeveloped parcel of land within the

jurisdiction of the City and County of San Francisco. In

accordance with the property’s then-existing zoning,

petitioner proceeded with plans to develop 14 residential

homesites on the parcel. The City responded with a resolu-

tion to acquire the property and brought condemnation

proceedings under its powers of eminent domain.

At trial, petitioner established that it had a reasonable

investment-backed expectation of developing and selling

14 residential homesites on its property. Such use was

consistent with all existing zoning, planning, and other

regulations at the time petitioner purchased the property and

began development activities.

The City did not deny that petitioner had the legal

right to develop 14 homesites on its property, nor was there

any dispute that petitioner had a reasonable, investment-

backed expectation in such development. Rather, the City

argued that it would never have allowed petitioner to exercise

its constitutional right to develop its property!

Although the City’s own planning code clearly

authorized the development of 14 homesites on petitioner’s

property, the City claimed it would have simply confi-

scated the equivalent of 9 of these sites, demanding that

3

they be dedicated to public use as a condition for approving

development of the remaining 5 sites. Since the City would

not have paid compensation for the regulatory confiscation

of petitioner’s property, the City urged that it should not

be required to compensate petitioner for the physical

taking of these same sites via eminent domain!

The trial court agreed with this astounding reasoning

and awarded petitioner no compensation for the City’s

seizure of nearly two-thirds of the property in question.

Compensation was required for the value of only five of

petitioner’s homesites, allowing the City to seize the

equivalent of the other nine sites without payment. -

4-

SUMMARY OF ARGUMENT

The Takings Clause of the Fifth Amendment to the

United States Constitution requires payment of just

compensation when private property is taken for public use.

In Nollan v. California Coastal Commission, this

Court established a requirement of heightened judicial

scrutiny for courts examining property regulations challenged

as regulatory takings. 483 U.S. 825, 834 n.3 (1987). The

deferential standard of review appropriate to due-process

inquiries was specifically rejected as inadequate for takings

cases. /d.

4

In the present case, petitioner suffered the uncompen-

sated taking of an easement over his property by the City and

County of San Francisco. In condemnation proceedings, the

City was awarded a portion of petitioner’s land--the

equivalent of nine buildable homesites--without payment of

compensation. The City’s rationale for this confiscation was

that, if petitioner had proceeded with its plans to develop the

property, the City would have seized an equivalent easement

in exchange for issuing building permits on the remaining

f.ve homesites.

Petitioner raised what should have been a self-evident

argument--that the City’s proposed regulatory seizure of

nearly two-thirds of the property would itself have required

compensation under the Takings Clause. On appeal,

however, the court below employed a series of tortured

evasions to acquiesce in the City’s confiscatory actions.

By rejecting the requirement of heightened scrutiny

laid down by this Court in Nollan, the court below abjectly

defers to the City’s forcible appropriation of petitioner’s

land. Worse, the appellate panel justifies its holding by

distorting and misstating this Court’s holdings in Nollan and

Yee v. City of Escondido, 503 U.S. __, 118 L. Ed. 2d 153

(1992).

The petition for certiorari should be granted not only

to correct the manifest injustice petitioner has suffered but to

5

eliminate the doctrinal conflicts created by the California

court in its efforts to avoid complying with Nollan.

aa

ARGUMENT

I

THE COURT BELOW ERRED

IN NOT APPLYING HEIGHTENED

SCRUTINY TO THE CITY’S SEIZURE OF

AN EASEMENT ACROSS PETITIONER’S LAND

The Fifth Amendment to the United States Constitu-

tion provides that "private property [shall not] be taken for

public use, without just compensation." U.S. Const.

Amend. V. This Court has long held that the Takings

Clause can be violated by either of two broad categories of

State action. Uncompensated physical invasions of property

are per Se violations of the Takings Clause under Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

The Takings Clause is also violated by land use regulations

that fail to substantially advance legitimate state interests or

deprive the owner of economically viable use of property.

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

In its leading case in the field of regulatory takings,

this Court clearly established that land use regulations

challenged under the Takings Clause must be subjected to a

heightened standard of judicial review. Such enactments may

6

no longer be upheld merely by reference to a "rational

relationship" to their asserted objectives:

[OJur opinions do not establish that [takings]

standards are the same as those applied to due

process or equal protection claims. To the

contrary, ... [w]e have required that the

regulation "substantially advance" the

"legitimate state interest" sought to be

achieved, not that "the State ‘could rationally

have decided’ the measure adopted might

achieve the State’s objective."

Nollan, 483 U.S. at 834 n.3 (citations omitted; emphasis in

original).

Nollan involved the uncompensated seizure of an

access easement by the Coastal Commission as a condition to

the issuance of a building permit. This Court recognized

that, had the Commission simply seized the easement

outright, compensation would have been required by the

Takings Clause. /d. at 831. Nollan went on to establish that

compensation was also required if the easement was seized

by regulation, so long as the property owners were not

uniquely responsible for the harm being mitigated by the

easement. Jd. at 835 n.4. Most important, the decision

required courts to closely examine such regulatory exactions

to determine whether they are legitimate exercises of the

police power or merely thinly disguised demands of

extortion. /d. at 834 n.3.

7

The case at bar presents identical issues, with the

addition of eminent domain proceedings. Nollan reaffirms

that, if the City had simply seized a view easement across

petitioner’s property, compensation would be required under

the Takings Clause. /d. at 831. Moreover, since petitioner

is in no way responsible for the City’s sudden desire to

establish a view easement across this site, Noll/an establishes

that the City may not simply confiscate such an easement as

a condition to the issuance of a building permit. /d.

at 835 n.4.

By logical extension, if the City cannot simply

expropriate the easement and may not seize it as a permit

condition, the trial court erred in assigning no value to the

easement at eminent domain. In effect, the trial court made

the City a gift of an easement over petitioner’s property.

Even more important, the appellate panel erred in failing to

apply heightened scrutiny to reveal the City’s actual

confiscatory role in these proceedings, as required by Nollan.

II

THE REFUSAL OF THE COURT BELOW TO

COMPLY WITH THIS COURT’S NOLLAN

MANDATE HAS DEPRIVED PETITIONER OF

FEDERAL CONSTITUTIONAL SAFEGUARDS

GUARANTEED TO ALL AMERICANS

The court below expressly recognized that petitioner

raised a regulatory takings challenge under the United States

Constitution. Disregarding the plain teaching of this Court,

8

however, the California panel declined to apply any

meaningful scrutiny to the City’s purported authority to

confiscate a view easement across petitioner’s land.

The City’s case rests on its asserted authority to seize

the equivalent of nine of petitioner’s homesites in exchange

for granting petitioner the "privilege" of developing the

remaining five sites. Under Nollan, the court below was

required to apply heightened scrutiny to this proposed regu-

latory seizure of property. Under any standard of review

greater than fawning deference to state power, the City’s

actions would have been struck down as an “out and out plan

of extortion." Nollan, 483 U.S. at 837.

Instead, the California court effectively asserts

that Nollan does not exist. The appellate panel correctly

observes that Nollan was not a physical takings case. See,

Petitioner’s Appendix at 3a-4a. But it also asserts that

Nollan was not a regulatory takings case. Id. at 4a. Having

thus "distinguished" this Court’s landmark decision out of

existence, the court below simply ignores the plain language

of Nollan and looks the other way while the City confiscates

petitioner’s land.

In its haste to acquiesce in the City’s uncompensated

taking of property, the court below cites to its own erroneous

holding in Blue Jeans Equities West v. City and County of

San Francisco, 3 Cal. App. 4th 164 (1992). Petitioner’s

9

Appendix at 4a. Blue Jeans Equities, a hopelessly garbled

and self-contradictory opinion, proclaims that WNollan’s

heightened scrutiny requirement applies only to "possessory

takings." The irony here is that the First Appellate District

coined the Blue Jeans doctrine to avoid applying heightened

scrutiny to the City’s extortion of money from property

owners. The forced exaction of land in exchange for the

right to build--as in the case at bar--is precisely the sort of

"possessory taking" that should trigger heightened scrutiny

according to the Blue Jeans court itself.

The most glaring and outrageous misinterpretation of

law in the opinion below is its citation to Yee v. City of

Escondido for the proposition that Nollan involved a physical

taking. Petitioner’s Appendix at 4a. The entire thrust of this

Court’s holding in Yee was to distinguish Nollan from the

physical taking theory unsuccessfully advanced by the

plaintiffs in that case.

As the court below observes barely one paragraph

later, Yee emphasized that a physical taking requires the

forced submission of the property owner. Yee, 118 L. Ed.

2d at 165, cited in Petitioner’s Appendix at 4a. This was

obviously not the case in Nollan--the property owners would

have been left in peace unless they insisted on exercising

their constitutional right to build on their own property.

Exactly the same situation pertains to the City’s proposed

10

seizure of nine homesites if GGHI exercised its right to build

five homes. The City’s proposed regulatory taking of nine

homesites must be subjected to heightened judicial scrutiny

under Nollan. Instead, the court below applied no

meaningful scrutiny whatever--beyond scrambling to create

legal justifications for the City’s confiscatory policies.

The rejection of Nollan’s heightened scrutiny require-

ment by the court below is more than a simple mistake in the

application of federal constitutional law. Rather, it amounts

to a denial of fundamental rights guaranteed by the United

States Constitution. The appropriate standard of judicial

review is not a mere procedural detail. In close cases, the

level of scrutiny determines the outcome of litigation. See

R. S. Radford, Statistical Error and Legal Error, 21 Loy.

L.A. L. REV. 843, 870-79 (1988). In the context of regula-

tory takings, the level of scrutiny determines whether

individual property rights will be protected against predatory

and confiscatory regulations--or not.

While California courts may be justified in departing

from. federal precedent in order to extend greater consti-

tutional protections to California citizens than the federal

courts provide, such is manifestly not the case here. To the

contrary, the California Court of Appeal has deprived

petitioner of important rights recognized and protected by the

decisions of this Court.

1]

——

CONCLUSION

The California court engaged in a tortured series of

legal errors and contradictions in its devotion to upholding

the City’s confiscation of petitioner’s land. The court

declares that Nollan was not a physical takings case but, in

the next breath, asserts that Nollan does not apply to

regulatory takings. The court cites to its own erroneous

holding in Blue Jeans Equities but then refuses to follow it.

The court claims that Yee characterized Nollan as a physical

takings case, yet it cites language from Yee plainly

distinguishing Nollan from physical takings.

The net effect is a doctrinally incoherent opinion that

will only exacerbate the already intense confusion that exists

in the field of regulatory takings. For this reason, Pacific

Legal Foundation respectfully urges this Court to grant the

12

petition for writ of certiorari in Golden Gate Heights

Investments v. City and County of San Francisco.

DATED: September, 1993.

Respectfully submitted,

RONALD A. ZUMBRUN

JAMES S. BURLING

*R. S. RADFORD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation