Amicus Curiae Brief — Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck

MOTION FILED

MAR 2 3 2000

\

Ca

No. 99-1399

In The

SUPREME COURT OF THE UNITED STATES

BONNIE BRIAR SYNDICATE, INC.,

Petitioner,

V.

TOWN OF MAMARONECK, TOWN BOARD OF

TOWN OF MAMARONECK, ELAINE PRICE,

Supervisor, KATHY O’FLINN, PAUL RYAN,

VALERIE O’KEEFE, and BARRY WEPRIN, as

Members of the Town Board,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS, STATE OF NEW YORK

MOTION FOR LEAVE TO FILE AMICUS

CURIAE BRIEF AND BRIEF OF THE

NATIONAL ASSOCIATION OF HOME

BUILDERS AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

Of Counsel: Gus Bauman

Mary V. DiCrescenzo (Counsel of Record)

National Association James T. Parkinson

of Home Builders Beveridge & Diamond, P.C.

1201 15™ St., N.W. 1350 I St., N.W., Suite 700

Washington, DC 20005 Washington, DC 20005

: (202) 789-6000

March 23, 2000

MOTION TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PETITIONER

The National Association of Home Builders (“NAHB”)

has received the written consent of the petitioner to submit

this amicus curiae brief.' The letter of consent has been filed

with the Clerk of this Court. Respondents have declined

consent.

The NAHB respectfully moves this Court for leave to file

its amicus curiae brief in support of petitioner because it

wishes to bring to the Court’s attention a disturbing trend

exemplified by the petitioners case and which quietly

underlies many of this Court’s takings cases involving land

use regulation — the use of the zoning power to exclude

needed housing once a builder or property owner, in good

faith reliance on a municipality’s master plan and zoning,

submits a housing development application to that

municipality. These municipalities, while uttering the

environmentally correct words, are, in reality, simply

enhancing their exclusivity by singling out and taking

through regulatory means private property, zoned for

housing use, without compensating for it. According due

deference to municipal land use action should not equate

with turning a blind eye to action tantamount to municipal

bad faith.

The NAHB represents over 200,000 builder and

associate members throughout the United States. Its

Pursuant to Rule 37.6 of this Court, amicus states that its counsel

authored this brief and amicus paid for it. This brief was not written in

whole or part by counsel for a party, and no one other than amicus

made a monetary contribution to its preparation.

members include not only people and firms that construct

and supply single family homes but also apartment,

condominium, commercial and industrial builders, as well

as land developers and remodelers. It is the voice of the

American shelter industry.

The NAHB has appeared before this Court as an amicus

curiae or as “of counsel” on behalf of the property owner in

prior takings cases involving land use regulation. These

include Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas and Electric Co. v. City of San Diego, 450 U.S. 621

(1981);? Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172 (1985); MacDonald,

Sommer @ Frates v. Yolo County, 477 U.S. 340 (1986); First

English Evangelical Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304 (1987); Nollan v. California Coastal

Commission, 483 U.S. 825 (1987);* Pennell v. City of San

Jose, 485 U.S. 1 (1988); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard, 512

U.S. 374 (1994); Suttum v. Tahoe Regional Planning Agency,

520 U.S. 725 (1997); and City of Monterey v. Del Monte

Dunes at Monterey, 526 U.S. 687 (1999).

Gus Bauman

> Justice Brennan’s dissent cited approvingly the NAHB brief. 450

U.S. at 643 n.6.

* The Court opinion cited approvingly the NAHB brief.

483 U.S. at 840.

iil

TABLE OF CONTENTS

MOTION TO FILE AMICUS BRIEF IN

DIE RUE COE FRERRIRRNGR. eee

gyi Foe Oy ys 0) 4 ¢ i | CSRS iv

SUMMARY OF ARGUMENT ............... l

REASONS FOR GRANTING THE WRIT ..... 2

I. THE COURT BELOW, BY EQUATING

THE “SUBSTANTIAL ADVANCEMENT”

TEST OF A TAKING TO MERE

“REASONABLENESS,” NOT ONLY

VIOLATES THIS COURTS RULINGS

BUT ALSO MAKES EASY MUNICIPAL

SBE Si OR +e BY (OS 2

II. DESPITE THIS COURT'S CLEAR

RULINGS THAT TAKINGS CLAIMS

REQUIRE AD HOC, FACT SENSITIVE

INQUIRIES, THE COURT BELOW

REDEFINED TAKINGS ANALYSIS THEN

DISMISSED THE CASE WITH NO

SEARCHING INQUIRY, DESTROYING

THE OWNER’S “DISTINCT INVESTMENT-

BACKED EXPECTATIONS” ............. 9

TS Te ren eae ee ee 14

IV

TABLE OF AUTHORITIES

Cases

Agins v. City of Tiburon, 447 U.S. 255

RINE Sa Rina Oka a eae ee Ss passim

Bonnte Briar Syndicate, Inc. v. Town of

Mamaroneck, 94 N.Y.2d 96 (1999) ..... passim

Bormann v. Board of Supervisors, 584

N.W.2d 309 (Iowa 1998) ............ 6

City of Monterey v. Del Monte Dunes at

Monterey, 526 U.S. 687, 119 S. Ct. 1624

CRP +c hale ke esse Sears Sarees passim

Department of Natural Resources v. Indiana

Coal Council, Inc., 542 N.E.2d 1000

ie. re enter eae SON er eee 5

Dolan v. City of Tigard, 512 U.S. 374

CREPE 4 Cot xs ea eae Caen eee eo passim

Dolan v. City of Tigard, No. 94-1259-CV

(Or, Cir, Ce, Nov. 26, 2997)... 2.5 5.. 10

Ehrlich v. Culver City, 19 Cal. Rptr.2d 468

(Cal. Ct. App. 1993), vacated and remanded,

Dis Sy Se CRD bibie eK aa he 3

Vv

First English Evangelical Lutheran Church

of Glendale v. Los Angeles County,

GEE Wi Pee CRED 8 vp ct hte eens 9

First English Evangelical Lutheran Church

of Glendale v. Los Angeles County, 258 Cal.

Rptr. 893 (Cal. Ct. App. 1989) ........ 9

Forseth v. Village of Sussex, 199 F.3d 363

‘to bt AP, we ee 7,8

Keystone Bituminous Coal Assn v.

DeBenedictis, 480 U.S. 470 (1987) ...... 3, 10

Lucas v. South Carolina Coastal Council,

US Way SU CRORES 6 iN 5 6 eee ae hh ye passim

Lucas v. South Carolina Coastal Council, 424

cae Ae ten EE Shee de ede es 9

MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340 (1986) ......... 6

Nollan v. California Coastal Comm n,

MBG WIS: Bee CAT bei et passim

Penn Cent. Transp. Co. v. New York City,

oe es | ee rr passim

Pennsylvania Coal Co. v. Mahon, 260 U.S.

Lt” | a ere Er ry irre ne 10

v1

San Diego Gas and Elec. Co. v. City of

San Diego, 450 U.S. 621 (1981) ....... 3

Suttum v. Tahoe Reg’! Planning Agency,

Ge Sse, FRO REOOTE Oh ee Keene 6, 10

Suttum v. Tahoe Reg’! Planning Agency,

No. CV-N-91-040-ECR (D. Nev.

ee es ra eee eae 10

Untied States v. Riverside Bayview Homes,

Iee., 474 U.S. 121 (1985) ............ 3,6

Villege of Willowbrook v. Olech, 120 S. Ct. 1073

i eS rors wore. are a 7

Wiliamson County Reg’l Planning Commn v.

Eamilton Bank, 473 U.S. 172 (1985) .... 6

Yee ». City of Escondido, 503 U.S. 519

OPE 55 65-54'n > Pes ee ee oe See 3, 11

Other

Advsory Comm’n on Regulatory Barriers

tc Affordable Housing, “Not In My Back

Yard” — Removing Barriers to Affordable Housing

eer reer rere ee es ey 7

Vil

H. Jane Lehman, Accord Ends Fight Over Use

of Land, Wash. Post, July 17, 1993,

9 Ee er ne eee eee eee 9

Report of the President’s Comm’n on

RMOUUME TE WOD 20k oho eg aes obec es ’f

Suitum Settles Longstanding Takings Case,

Endangered Species & Wetlands Report,

i 6 ws ea Ge oe wea’ Weeks 10

SUMMARY OF ARGUMENT

The test for regulatory takings, which is loss of

“economically viable use” or failure to “substantially advance

legitimate state interests,” is grounded in constitutional

reason and Supreme Court precedent. The lower court, one

with national influence in its rulings, chose to redefine the

test by equating “substantial” with “reasonable,” thereby

enabling an exclusionary community to take private property

for public use by destroying the owner’s “distinct

investment-backed expectations” (a takings standard

articulated by this Court 22 years ago in another land use

case in which the New York high court was rebuked for

misinterpreting the Fifth Amendment).

This case, like eight other takings cases heard by this

Court over the past score years, is really about the

manipulation of zoning (and now the Constitution) to

exclude needed housing. The justifications offered by the

town for its action, which had nothing to do with

preventing harmful use by the owner and everything to do

with obtaining an open space resource for the town at no

cost to anyone but the owner, were never accorded by the

lower courts the searching factual inquiry required by this

Court’s decisions. A review of the remands of this Court’s

recent takings cases is instructive on the critical reason for

having a trier of fact adjudge a takings claim.

2

REASONS FOR GRANTING THE WRIT

i.

THE COURT BELOW, BY EQUATING THE

“SUBSTANTIAL ADVANCEMENT” TEST OF

A TAKING TO MERE “REASONABLENESS,”

NOT ONLY VIOLATES THIS COURT’S

RULINGS BUT ALSO MAKES EASY

MUNICIPAL HOUSING EXCLUSION

Twenty years ago, in Agins v. City of Tiburon, 447

U.S. 255, 260 (1980), this Court, in a unanimous opinion,

enunciated the test to which all takings jurisprudence in state

and federal courts is supposed to adhere:

The application of a general zoning law to

particular property effects a taking if the

ordinance does not substantially advance

legitimate state interests . . . or denies an

owner economically viable use of his land

l

' Below, the Bonnie Briar Syndicate indicated that this case does not

implicate the second prong of the Agms test; thus, at issue here is

exclusively the operation of the “substantial advancement” prong of

Agins.

ee

3

Since 1980, this Court has returned to this test in

1981,? 1985,* twice in 1987,* twice in 1992,° 1994,° and

1999,’ each case building on the prior case, and cach time

stating that a zoning law must “substantially advance

legitimate state interests” to avoid a taking. Moreover, since

1980, this Court has neither applied nor countenanced a

different formula or altered the basic test, except to clarify in

the context of governmental exactions of private property

interests that a municipality must demonstrate “rough

proportionality” between an imposed exaction and the

impact of the proposed development. See Dolan v. City of

Tigard, 512 U.S. 374, 391 (1994); Ehrlich v. Culver City,

19 Cal. Rptr.2d 468 (Cal. Ct. App. 1993), vacated and

remanded, 512 U.S. 1231 (1994); City of Monterey v. Del

2 San Diego Gas ¢ Elec. Co. v. City of San Diego, 450 U.S. 621, 647

(1981) (Brennan, dissenting) (but representing the substantive views

of five members of the Court).

> United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126

(1985).

* Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 485

(1987); Nollan v. California Coastal Comm’n, 483 U.S. 825, 836 n.3

(1987).

5 Yee v. City of Escondido, 503 U.S. 519, 534 (1992); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1016 (1992).

° Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).

” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687, 119 S. Ct. 1624, 1636 (1999).

+

Monte Dunes at Monterey, 526 U.S. 687, 119 S. Ct. 1624,

1635 (1999).

By articulating the taking test to require “substantial

advance[ment],” this Court consciously encapsulated a

“verbal formulation” different from the “rational basis

review” applied as the least stringent standard applicable

under due process analysis.* In Nollan v. California Coastal

Commission, this Court stated that “our opinions do not

establish that [takings] standards are the same is those

applied to due process or equal protection claims.” 483

U.S. 825, 836 n.3 (1987). Rather, this Court explained,

“our cases describe the condition for abridgement of

property rights through the police power as ‘substantial

advanc[ing]’ of a legitimate state interest.” Id. at 841. Thus,

this Court’s jurisprudence is crystal clear on this point:

takings claims are constitutionally different from due process

or equal protection claims, and should not be analyzed

through the rational basis lenses of those doctrines.

In Bonnte Briar Syndicate, Inc. v. Town of Mamaroneck,

94 N.Y.2d 96 (1999), the New York Court of Appeals

simply ignored this Court’s consistent rulings. By doing so,

it was then able to deny the injured land owner its day in

court to prove its case. The New York court fashioned a

takings test requiring that zoning regulations be merely

“reasonable,” ruling that anything found “reasonable” then

also meets the “substantial advancement” test. Id. at 108.

* Nollan v. California Coastal Comm’n, 483 U.S. 825, 836 n.3

(1987).

5

It said: “Because zoning plaintifPs property for solely

recreational use bears a reasonable relation to the legitimate

objectives stated within [Local Law No. 6], the regulatory

action here substantially advances those purposes”. Jd. This

Orwellian reading of this Court’s specific language —

substantial equals reasonable — goes beyond the confusion

some other state courts express when applying § the

“substantial advancement” test.

For example, in Department of Natural Resources v.

Indiana Coal Council, Inc., 542 N.E.2d 1000 (Ind. 1989),

the Supreme Court of Indiana expressed the basis for such

confusion when ruling on a state mining law preventing

surface mining that might impact archeological resources.

Reviewing the menu of choices provided under modern

takings jurisprudence, the Indiana court stated:

[T]here is authority that suggests that a land

use regulation need only be “reasonably

related” to the legitimate state interests to be

valid, Penn Central, 438 U.S. 104, 131 [], or

that it be “reasonably necessary to the

effectuation of a substantial public purpose,”

Penn Central, 438 U.S. at 127 [], or that it

“substantially advance” a legitimate state

interest, Agins, 447 U.S. 255, 260 []. The

Supreme Court has, as yet, been unable to

) settle on an exact standard for assessing the

| connection between the regulation and the

state interest.

6

542 N.E.2d at 1005. The Indiana court prefaced its

comments above by stating: “In examining the nexus

between the land use regulation and the state interest, we

have relied on the phrasing of earlier Supreme Court cases,

and have required that there be a ‘substantial relationship’

between the two.” Id.

In Bormann v. Board of Supervisors, 584 N.W.2d 309,

316 (Iowa 1998), a takings case involving the adoption of

an agricultural district, the Supreme Court of Iowa recently

misunderstood the regulatory takings test, reciting a

“reasonableness” standard in the same confused manner as

the New York court did in Bonnie Briar. In so doing, the

Iowa court managed to discuss the law of takings without

ever referring to the alternative prong of the Agis test, the

“substantial advancement” prong.

Since this Court first confronted the constitutional

problem presented by inverse condemnation in Agins, a

remarkable number of its regulatory takings cases have, at

heart, concerned housing exclusion: Agins v. City of Tiburon,

447 U.S. 255 (1980); United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985); Williamson County

Regional Planning Comm’n v. Hamulton Bank of Johnson City,

473 U.S. 172 (1985); MacDonald, Sommer @& Frates v. Yolo

County, 477 U.S. 340 (1986); Nollan v. California Coastal

Comm’n, 483 U.S. 825 (1987); Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992); Sustum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997); and City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687, 119 S. Ct. 1624 (1999). These cases almost without

Pe ee

7

exception were about use of the police power to obtain open

space or very low density in exclusive suburban communities

despite what the zoning permitted and despite federal tax

and mortgage policies encouraging new housing for a

growing nation. Such housing exclusion is precisely what

: occurred in Bonnie Briar Syndicate, Inc. v. Town of

| Mamaroneck, and it is precisely what the New York court

condoned by taking this Court’s constitutional standard for

evaluating a taking and twisting it.

The wrong takings jurisprudence applied by the New

York Court of Appeals, and exhibited elsewhere as well,

fosters this type of housing exclusion nationwide.? When

courts misapply takings law, as here, the door opens wide

for municipalities to engage in behavior designed not for the

advancement of legitimate and laudable environmental goals

but for behavior designed to exclude new homes and people.

| Land use behavior tainted by municipal bad faith has

been the subject of this Court’s recent attention in Del Monte

| Dunes as well as Village of Willowbrook v. Olech, 120 S. Ct.

1073 (2000), an equal protection case. Similarly, in the

recent Forseth v. Village of Sussex, 199 F.3d 363 (7th Cir.

2000), the court reversed a district court’s dismissal of equal

protection claims in the context of land use. In Forseth, the

landowner alleged that the village board unconstitutionally

9

See generally Advisory Comm’n on Regulatory Barriers to

Affordable Housing, “Not In My Back Yard” ~ Removing Barriers to

Affordable Housing, at 2-5 (1991): Report of the President’s Comm’n

on Housing, at 199-208 (1982).

8

conditioned approval of an as-of-right development project

upon the landowner’s sale of a portion of the property to the

village board president personally. Id. at 366-67. The court

remanded the case.

One purpose in formulating a takings standard

different from the “rational basis” standard of due process

analysis, in both kind and degree, was to smoke out bad

faith by requiring more than the abstract possibility of a

rational basis for application of a zoning law. Here, where

close examination of the town’s stated rationales for what it

did does not survive even cursory scrutiny, see Reason II.

below, the underlying objective of the Town of Mamaroneck

becomes clear: to exclude new housing (therefore people) at

the singular expense of the Bonnie Briar Syndicate’s use of

its land, keeping it in open space for the benefit of the

neighbors and town and at no cost to anyone but for the

targeted landowner.

Conflicting application of takings law simply

encourages litigation, harms consumers by increasing

housing prices, decreases liquidity in the real estate

development markets, and is fundamentally unfair and

unconstitutional.

9

II.

DESPITE THIS COURT’S CLEAR RULINGS

THAT TAKINGS CLAIMS REQUIRE

AD HOC, FACT SENSITIVE INQUIRIES,

THE COURT BELOW REDEFINED TAKINGS

ANALYSIS THEN DISMISSED THE CASE

WITH NO SEARCHING INQUIRY,

DESTROYING THE OWNER’S “DISTINCT

INVESTMENT-BACKED EXPECTATIONS”

The court below, after redefining this Court’s test for

a regulatory taking, then dismissed the takings claim of the

Bonnie Briar Syndicate on motions for summary judgment;

no trial ever took place. Yet, since Penn Central

Transportation Co. v. New York City, 438 U.S. 104 (1978),

this Court has repeatedly stressed the “essentially ad hoc,

factual” nature of takings claims and the importance of trial.

Id. at 124. For example, in First English Evangelical

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

(1987), this Court reversed and remanded.'® In Lucas v.

South Carolina Coastal Council, 505 U.S. 1003 (1992), this

Court reversed and remanded.'! In Dolan v. City of Tigard,

'° On remand, the state appeals court found no taking under both

prongs of the Agims test. 258 Cal. Rptr. 893 (Cal. Ct. App. 1989).

'' On remand, the state supreme court found a taking and ordered

atrial. 424 S.E.2d 484 (S.C. 1992). The state then settled with David

Lucas, bought the property it tried to keep from being developed, and

then auctioned the property to the highest bidder for development.

H. Jane Lehman, Accord Ends Fight Over Use of Land, Wash. Post,

(continued...)

10

512 U.S. 374 (1994), this Court reversed and remanded.” ~

And in Suitum v. Tahoe Regional Planning Agency, 520 U.S.

725 (1997), this Court reversed and remanded.'*

As recently as last term, this Court in Del Monte

Dunes addressed the role of the trier of fact and reiterated

the fact-bound nature of takings claims, stating:

Almost from the inception of our regulatory

takings doctrine, we have held that whether a

regulation of property goes so far that “there

must be an exercise of eminent domain and

compensation to sustain the act . . . depends

upon the particular facts.” Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 413 (1922);

accord Keystone Bituminous Coal, [480 U.S. ] at

473-74. Consistent with this understanding,

'! (...continued)

July 17, 1993, at El.

'2 On remand, during jury trial in state court, the city settled with

Florence Dolan for $1.5 million, granting her a building permit in

exchange for two property easements. No. 94-1259-CV (Or. Cir. Ct.

Nov. 18, 1997).

'* On remand, in denying the agency’s summary judgment motion,

the federal district court indicated a likelihood of finding a taking. No.

CV-N-91-040-ECR (D. Nev. Dec. 9, 1998). The agency then settled

the case before trial, paying Bernadine Suitum for her property and

costs in exchange for her agreement that the district court opinion and

order be withdrawn. Suttum Settles Longstanding Takings Case,

Endangered Species & Wetlands Report, June 1999, at 7.

1]

we have described determinations of liability

in regulatory takings cases as “essentially ad

hoc, factual inquiries,” Lucas, [505 U.S.] at

1015 (quoting Penn Central Transp. Co. v.

New York City, 438 U.S. 104, 124 (1978)),

requiring “complex factual assessments of the

purposes and economic effects of government

actions,” Yee, 503 U.S. at 523.

119 S. Cr. at 1644.

Here, all three of the town’s stated objectives -

recreational opportunities, open space, and flood control -

when confronted with the landowner’s “distinct investment-

backed expectations” (a takings standard first enunciated in

Penn Central, 438 U.S. at 124) and submitted development

application, present clear factual issues requiring trial.

Neither the town’s stated objectives nor the landowner’s

takings claim were suited for summary disposition.

The town singled out and downzoned the Bonnie

Briar property based in part on the town’s claim that it

sought to provide Mamaroneck citizens with recreational

opportunities. Did the downzoning substantially advance

the town’s recreational opportunity rationale? No. Bonnie

Briar has operated the sought-after recreational opportunity

since 1921 and has never hinted that it would cease

providing this recreational opportunity. Indeed, when the

town was presented with the opportunity to convert this

private golf club into a public course operated for the benefit

of all the town’s residents, the town declined to substantially

12

advance its citizens recreational opportunities, opting instead

to downzone Bonnie Briar for open space. Moreover, the

development plan submitted by the owner contemplated no

alteration in the recreational opportunities; rather, the plan

submitted to the town conformed with the town’s own

comprehensive plan by retaining the golf course.

The town’s second rationale — retention of open space

— suffers from the same failures: the downzoning did not

substantially advance the state interest of retaining open

space. The owner’s residential application would retain the

entire 18-hole golf course and construct housing on a fifth

of the total property, in conformance with the zoning, the

town master plan, and the recommendations of the town’s

consultant.

The town’s final rationale — use of Bonnie Briar’s land

for a municipal flood control device — seems the most

outrageous and the least suited for summary disposition.

Having failed to provide appropriate flood control measures

using more traditional methods (where the whole

community bears the cost), the town baldly offers as one of

its objectives that it intends to use Bonnie Briar’s privately

owned land for this public purpose. Thus the town applied

a zoning provision for the express purpose of appropriating

Bonnie Briar’s property (without compensation) during

times of flooding, an action especially egregious since the

owner did nothing to contribute to the flooding.

Clearly, reasonable deference must be accorded

municipal actions in land use regulation. But, as this Court

en

13

noted in Del Monte Dunes, 119 S. Ct. at 1637, deference

| does not mean that municipalities are immune from

| searching inquiry when a citizen claims constitutional injury.

This Court made the same important point in both Lucas,

905 U.S. at 1031-32, and Dolan, 512 U.S. at 392.

| While a trier of fact certainly might determine that

: the town’s rationales for what it did to Bonnie Briar

: constitute the required substantial advancement of legitimate

) state interests, in Bonnie Briar, no trier of fact ever heard the

disputed evidence. If the lower court opinion by the

influential New York Court of Appeals is allowed to stand,

despite what this Court has said consistently since Penn

Central (when this Court rebuked the New York high court

for misinterpreting the law of regulatory takings), then no

owner or builder with an as-applied takings claim has much

chance of being allowed to try to prove its case.

14

CONCLUSION

For the above reasons, the amicus respectfully

requests that this Court grant the Petition for a Writ of

Certiorari.

Of Counsel:

Mary V. DiCrescenzo

National Association

of Home Builders

1201 15th St., N.W.

Washington, DC 20005

March 23, 2000

Respectfully submitted,

Gus Bauman

(Counsel of Record)

James T. Parkinson

Beveridge & Diamond, P.C.

1350 I St., N.W., Suite 700

Washington, DC 20005

(202) 789-6000