Amicus Curiae Brief — Ehrlich v. City of Culver City

No. 96-238

a —_=

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

RICHARD K. EHRLICH, as Trustee of the

1985 Ehrlich Family Trust and as Trustee

of the July 28, 1965, Trust,

Vv.

CITY OF CULVER CITY, CITY COUNCIL OF

THE CITY OF CULVER CITY, STEVEN GOURLEY,

JOZELLE SMITH, JAMES BOULGARIDES,

AND PAUL A. JACOBS,

Petitioner,

Respondents.

Petition For Writ Of Certiorari

To The California Supreme Court

AMICUS CURIAE BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Mary V. DiCrescenzo Kenneth B. Bley*

The National Association Cox, Castle & Nicholson, LLP

of Home Builders 2049 Century Park East

1201 15th Street Suite 2800

Washington, D.C. 20005 Los Angeles, CA 90067

(202) 822-0359 (310) 284-2231

Attorneys for Amicus Curiae

THE NATIONAL

ASSOCIATION OF

HOME BUILDERS

*Counsel of Record

i

TABLE OF CONTENTS

I. THE NAHB’S INTEREST ARISES FROM ITS

MEMBERS’ CONCERNS AS TO WHEN THEY

CAN BE REQUIRED TO DEDICATE LAND

OR PAY MONEY TO A LOCAL

GOVERNMENT AS A CONDITION OF A

Pv et Fy | rarer

Il. SUMMARY OF THE ARGUMENT..........

ARGUMENT

Ill. THE PETITION FOR WRIT OF CERTIORARI

PRESENTS AN IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THE COURT ....

A. The Use And Regulation Of Land Present

Important Questions Of Law...........

B. The Extent Of Governmental Power To

Require Exactions In The Land Use

Context Is Of Vital Importance To

a ae

C. Dolan Solved Only One Part Of The

Oss Satine ee alg We eae whe ete Kk

D. The State Courts Are Already In Massive

Disagreement As To The Extent Of Dolan .

RG 6 6 owe ewes EWR eA eA

ii

TABLE OF AUTHORITIES

CASES Page(s)

Agins v. City of Tiburon,

G67 UR. BS Cee a da he Nae cee eee 1

Amoco Oil Co. v. Village of Schaumburg,

277 Ill.App.3d 926, 661 N.E.2d 380 (1995),

app. denied, 167 Ill.2d 549, 667 N.E.2d 1055

CRIED 0-0 5°54. bee nace See ee 9

Clark v. City of Albany,

137 Or.App. 293, 904 P2d 185 (1995), rev.

denied, 322 Or. 644, 912 P2d 375 (1996) ..... 8

Dolan v. City of Tigard,

- US. -, 114 S.Ct. 2809 (1994)............. 2-4, 6-10

Ehrlich v. City of Culver City,

12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911 P2d

ee CUD 868s aa SO eR SR eee 8,9

First English Evangelical Lutheran Church v.

County of Los Angeles,

Ge UE. SOG Tae) bs es Oe OS ee a ees 4

Garneau v. City of Seattle,

897 FSupp. 1318 (W.D. Wash. 1995) ........ 8

J.C. Reeves v. Clackamas County,

135 Or.App. 615, 887 P2d 360 (1994) ....... 8, 9

Kaiser Aetna v. United States,

O66 UE: SOG CR ee eis EN cs share ee eRe 4

Loretto v. Teleprompter Manhattan CATV,

ae ee | er eee eee ee re 4

Loyola Marymount University v. Los Angeles

Unified School District,

45 Cal.App.4th 1256, 53 Cal. Rptr.2d 424 (1996) g

Lucas v. South Carolina Coastal Council,

See Wah Bee COM 5 4 eA ORAS eee Re 4

ill

MacDonald, Sommer & Frates v. Yolo County,

Se en UE i wk dck han caeleeuwees

McCarthy v. City of Leawood,

257 Kan. 566, 894 P2d 836 (1995) .........

Nectow v. City of Cambridge,

Se a os oe e's

Nollan v. California Coastal Commission,

ee ee a ak ke as

Parking Association of Georgia, Inc. v. City of

Atlanta, - U.S. -, 115 S.Ct. 2268 (1995) ......

Pennsylvania Coal Co. v. Mahon,

cs an os as 6 a 6666 © 8

River Park, Inc. v. City of River Park,

Bo F.o0 166 (7th Cir, 1904)... ww ees

San Diego Gas & Electric Co. v. City of San

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

San Mateo Coastal Landowners’ Association v.

County of San Mateo,

38 Cal.App.4th 523, 45 Cal.Rptr.2d 117 (1995) .

Schultz v. City of Grants Pass,

131 Or.App. 220, 884 P2d 569 (1994) .......

Southeast Cass Water Resource District v.

Burlington Northern RR,

eee ee REE, BOD occ ecceccsess

State of Washington ex rel. Seattle Title Trust

Co. v. Roberge, 278 U.S. 116 (1928).........

Village of Belle Terre v. Boraas,

SS Get db ga'S ag oe sree ade.s 4.2

Village of Euclid v. Ambler Realty Co.,

oe Ere ee ae ee

iv

Waters Landing Limited Partnership uv.

Montgomery County, 337 Md. 15, 650 A.2d 712

bias xv GR bara OCR URES RRA

Williamson County Regional Planning

Commission v. Hamilton Bank,

Bit Sy. gi ere eer

TREATISES

Abbott, Moe & Hanson, Public Needs & Private

Spee CEG... x5 oR ae ONS SO She 6 eS

Alterman, Evaluating Linkage, and Beyond:

The New Method for Supply of Affordable

Housing and Its Impacts (1989) ...........

Altshuler & Gomez-Ibanez, Regulation for Revenue:

The Political Economy of Land Use Exactions

ROE is Sa Fares Cees ee Wha eek oes

4 Anderson, American Law of Zoning, Ch. 25,

Subdivision Controls (3d ed. 1986 and

SOR, Te Ta TD ic so isin eee eee eses

Frank & Rhodes (eds), Development Exactions

eo re ee eee ee eS et re

Kushner, Subdivision Law & Growth

Management, Ch.6, Financing Capital

eee ae ee eee

Mandelker, Cunningham & Payne, Planning

and Control of Land Development 600-601

FD Neto ee Core oe ee

Miles, Haney & Berens, Real Estate

Development: Principles and Process 35 (1996)

Nicholas, Nelson & Juergensmeyer, A

Practitioner’s Guide to Development Impact

| RRR a eal he oa a gre oe

Page(s)

Page(s)

“Not In My Backyard’: Removing Barriers to

Affordable Housing 2-10-12 (1991) ......... 5

Symposium, Exactions: A Controversial New

Source for Municipal Funds, 50 Law &

ee Se) es eee 5

Synder & Stegman, Paying for General Growth:

Using Development Fees to Finance

Endrestractare CIGGB) oo icc tec eee 5

U.S. Department of Commerce, Construction

Review Quarterly Industry Report, Table 2

(Fall and Winter 1995-96) ............... 7

5 Williams, American Planning Law, Chs. 156,

Subdivision Control, and 156A, Impact Fees

(1988 rev. and Aug. 1995 Cum. Supp.)....... 4

5 Ziegler, Rathkopf’s The Law Of Zoning &

Planning, § 65.04, Development Conditions,

Improvements, Exactions, and Impact Fees

LS PSR We cee eS Ean Sere Ss 4

1

THE NATIONAL ASSOCIATION OF HOME BUILD-

ERS (‘“‘“NAHB’’) has received the parties’ written consent to

file this brief as amicus curiae in support of the petition for

writ of certiorari and have filed the letters of consent with

the Clerk of the Court.

I.

THE NAHB’S INTEREST ARISES FROM ITS

MEMBERS’ CONCERNS AS TO WHEN THEY CAN BE

REQUIRED TO DEDICATE LAND OR PAY MONEY

TO A LOCAL GOVERNMENT AS A CONDITION

OF A LAND USE APPROVAL

The NAHB represents over 185,000 builder and associ-

ate members throughout the United States. Its members

include not only people and firms that construct and supply

single family homes but also apartment, condominium, com-

mercial, and industrial builders, as well as land developers

and remodelers. It is the voice of the American shelter indus-

try. It is, therefore, concerned with any judicial decision that

deals with the circumstances under which a landowner may

be forced to dedicate land, pay money, or provide services as a

condition of a land use approval. More specifically, its mem-

bers need to know, in advance, what costs they are likely to

incur as part of the land development process.

The NAHB has been before the Court as an amicus

curiae or as “‘of counsel’’ to the property owners in a number

of cases involving the rights of landowners to use their prop-

erty and the remedy to be applied when those rights are

interfered with. These include Agins v. City of Tiburon, 447

U.S. 255 (1980), San Diego Gas & 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), Nollan v. California Coastal Commission,

2

483 U.S. 825 (1987),! and Dolan v. City of Tigard, - U.S. -, 114

S.Ct. 2309 (1994).

The NAHB submits its amicus curiae brief in support of

the petitioner in the present case in order to assist the Court

in determining whether to grant its writ of certiorari to clar-

ify the circumstance under which the heightened scrutiny

demanded by Dolan applies; i.e., when is a municipality

required to make an individualized determination of

whether rough proportionality exists between the exactions

demanded as a condition of the approval of new development

and the impacts created by the new development. Its deter-

mination is particularly necessary at the present time

because of the importance of the issue presented and the

current uncertainty resulting from the differing views of the

applicability of Dolan amongst state courts.

Il.

SUMMARY OF THE ARGUMENT

Dolan held that a municipality bears the burden of dem-

onstrating, through an individualized determination, that a

rough proportionality exists before an exaction requiring the

dedication of land and the impacts created by new develop-

ment can be upheld when the exaction has been made a

condition of an adjudicative land use approval. Dolan did not

address the issue of whether a municipality bears a similar

obligation — and courts are to subject a municipality’s

actions to a higher level of scrutiny — when an exaction is

imposed as a condition in an adjudicative context but does

not involve the dedication of land, i.e., when it involves the

payment of money or the provision of services, nor did it

address the question of what happens when the exaction is

imposed legislatively to a whole class of approvals.

1 The Court’s opinion cited the NAHB’s brief. 483 U.S. at 840.

3

State courts handle the bulk of land use cases but they

haven’t a clue as to what they are supposed to do when

presented with an exaction condition in circumstances that

are not on all fours with Dolan. As a result, their decisions

are all over the place. Some state courts have limited Dolan

to its facts; others have extended it.

Dolan answered only one portion of the important fed-

eral constitutional question of when government is entitled

to force a landowner to provide private property to the public

in the land use approval context. Although only two years

old, Dolan has already formed the rule of decision for numer-

ous cases but without any uniform understanding by the

state courts of when the heightened scrutiny required by

Dolan applies. Costs, once known, can be dealt with; uncer-

tainty is a killer. Only the Court’s explanation of what it

intended in Dolan will provide the certainty that lower

courts and landowners need and deserve. That is why the

court should grant the petition for certiorari now pending.

ARGUMENT

iil.

THE PETITION FOR WRIT OF CERTIORARI

PRESENTS AN IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THE COURT.

A. The Use And Regulation Of Land Present Important

Questions Of Law.

The petition now pending before the Court should be

granted because it presents a federal constitutional issue

having to do with how far government can go when it

regulates private property, an issue of great importance that

has been frequently worthy of the Court’s expenditure of its

limited time and resources in the past. See, e.g.,

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), Village

4

of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), Nectow v.

City of Cambridge, 277 U.S. 183 (1928), State of Washington

ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928),

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987), and Lucas v. South Carolina

Coastal Council, 505 U.S. 1008 (1992).

The petition involves the specific issue of under what

circumstances government can demand that private

property be provided to the public as part of the land use

approval process — an important subset of the more general

issue of the limits of the governmental right to regulate the

use of land. The public’s desire for access to private property,

even for the worthiest of reasons, is not enough to justify a

demand that a landowner make his or her property available

to the public. See, e.g., Kaiser Aetna v. United States, 444 US.

164 (1979), Loretto v. Teleprompter Manhattan CATV, 458

U.S. 419 (1982), Nollan v. California Coastal Commission,

483 U.S. 825 (1987), and Dolan v. City of Tigard, - U.S. -, 114

S.Ct. 2309 (1994). This follows, of course, from the fact that

the Takings Cause of the Fifth Amendment is entitled to as

much respect as the other parts of the Bill of Rights. Dolan,

supra, 114 S.Ct. at 2320.

B. The Extent Of Governmental Power To Require

Exactions In The Land Use Context Is Of Vital

Importance To Landowners.

The literature on exactions in the land use context is

voluminous? because the subject of exactions in the land use

® See, e.g., 4 Anderson, American Law of Zoning, Ch. 25, Subdivi-

sion Controls (3d ed. 1986 and Dec. 1995 Cum. Supp.); Kushner, Subdi-

vision Law & Growth Management, Ch. 6, Financing Capital

Improvements (1996); 5 Williams, American Planning Law, Chs. 156,

Subdivision Control, and 156A, Impact Fees (1988 rev. and Aug. 1995

Cum. Supp.); 5 Ziegler, Rathkopf's The Law Of Zoning & Planning,

§ 65.04, Development Conditions, Improvements, Exactions, and

Impact Fees (1996); Abbott, Moe & Hanson, Public Needs & Private

(footnote continues)

5

context is important. Economists may argue as to who ulti-

mately bears the costs of the exactions — see Mandelker,

Cunningham & Payne, Planning and Control of Land Devel-

opment 600-601 (4th ed. 1995) — but nobody contests the

fact that those costs exist. Exactions go to the developer’s

bottom line and the developer’s ability to make a profit. No

profits, no development. No development, no new homes,

office buildings, stores, or factories.

Nor does anyone contest the reason why exactions have

become even more important than they were in the past:

government, at every level, simply does not have enough

money to do all of the things that the public wants done and

people are not eager to tax themselves to provide all of the

things which society requires. ‘““Not In My Backyard’’:

Removing Barriers to Affordable Housing 2-10-12 (1991).

The result is predictable: the burdens of society are shifted to

a small group — landowners who need land use approvals —

thus sparing the majority from having to assign priorities to

various needs.

Given that needs exist and resources are limited, the

question becomes one of when (not if) developers can be

required to solve public problems with private funds and,

when exactions can be imposed, how large the resulting costs

are going to be.

Landowners and developers are rational economic

beings. They can deal with exactions, even large ones, if they

(footnote continued)

Dollars (1993); Altshuler & Gémez-Ibanez, Regulation for Revenue:

The Political Economy of Land Use Exactions (1993); Nicholas, Nelson

& Juergensmeyer, A Practitioner's Guide to Development Impact Fees

(1991); Alterman, Evaluating Linkage and Beyond: The New Method

for Supply of Affordable Housing and Its Impacts (1989); Frank &

Rhodes (eds), Development Exactions (1987); Symposium, Exactions:

A Controversial New Source for Municipal Funds, 50 Law & Contemp.

Prob. 1 (1987); and Synder & Stegman, Paying for General Growth:

Using Development Fees to Finance Infrastructure (1986).

6

know what to expect. Reasonable business decisions can be

made when costs are fairly well known. However, no business

person can make plans and projections which hope to bear

any relationship to reality when there is no predictability

and costs are a sometime thing. Predictability of outcome —

even an adverse outcome — is better than uncertainty for all

concerned. Without that predictability, decisions cannot be

made or, if made, there is an increased chance that they will

be made poorly, resulting in wasted or underutilized

resources.

The only way that predictability can be restored on a

nationwide basis is for the Court to grant the petition and

tell the business and legal world what Dolan really means.

C. Dolan Solved Only One Part Of The Puzzle.

In Dolan, the City of Tigard imposed a condition which

required the landowner, Mrs. Dolan, to dedicate a portion of

her property to the public for flood control and traffic

improvements. (114 S.Ct. at 2312.) The Court refused to

allow Mrs. Dolan to be deprived of her land based only on an

attenuated relationship between impact and mitigation.

Instead, the Court held that the City was required to demon-

strate, through an individualized determination, that a

rough proportionality existed between the impact of

Mrs. Dolan’s expanded hardware store and the mitigation —

land to be deeded to the public — which the City had imposed

as a condition of the approval of that expansion. (114 S.Ct. at

2319-2320.)

In other words, Dolan provided a rule of decision in a

case where a condition imposed on an ad hoc basis required

the dedication of land; it said nothing as to what the rule of

decision would be had the City required the payment of fees

or the provision of services nor did it address the question of

what the rule of decision would be had the dedication

requirement been imposed by means of a legislatively

7

adopted requirement — one that would have been imposed

generally in a particular class of land use approvals.

As shown in the next subsection, state courts around

the nation have been unable to come to a common conclusion

as to when Dolan’s heightened scrutiny applies. Uncertainty

reigns supreme and will continue to do so until the Court

speaks and tells the business and legal world what Dolan

really means.

D. The State Courts Are Already In Massive Disagreement

As To The Extent Of Dolan.

Dolan was an important case because land development

is an important component of the national economy.® Courts

have had to deal with its importance; a Westlaw search shows

that, in the two years since Dolan was handed down, it has

been cited over 40 times by federal courts and over 65 times

by state courts. The same search also showed that Dolan has

been cited in more than 340 law review articles demonstrat-

ing its importance to commentators. As might be expected

with so many citations, different readers of the case have

come to different conclusions.

In particular, the state courts have no idea as to whether

Dolan’s heightened scrutiny is to be applied to exactions

which do not require the dedication of land or which have

been imposed legislatively.‘

3 Just under 50% of annual domestic private investment is in real

estate. Miles, Haney & Berens, Real Estate Development: Principles

and Process 35 (1996). The value of new residential, commercial and

industrial construction is estimated to be in excess of $250 billion for

1996. U.S. Department of Commerce, Construction Review Quarterly

Industry Report, Table 2 (Fall and Winter 1995-96). Real estate, as an

industry, employs approximat*'y 1.3 million workers; another 4.6 mil-

lion workers are employed in construction. Miles, Haney & Berens,

supra.

* There is an additional question of whether Dolan applies when a

land use regulation does not involve an exaction. See, e.g., Parking

(footnote continues)

8

No lower court has had any problem dealing with a case

where a condition imposed as part of an adjudicative decision

required the dedication of land. That is, however, where the

agreement ends.

Does Dolan apply when an exaction involves something

other than land? Some courts say yes, others no.

The case for which a writ of certiorari is being sought

held that it applies to money. Ehrlich v. City of Culver City,

12 Cal.4th 854, 859, 50 Cal.Rptr.2d 242, 246, 911 P2d 429,

433 (1996). Clark v. City of Albany, 137 Or.App. 293, 299, 904

P2d 185, 189 (1995), rev. denied, 322 Or. 644, 912 P2d 375

(1996), J.C. Reeves v. Clackamas County, 135 Or.App. 615,

623, 887 P2d 360, 365 (1994), both held that the heightened

scrutiny required by Dolan applied when a developer was

required to improve adjacent public streets.

On the other hand, McCarthy v. City of Leawood, 257

Kan. 566, 579, 894 P2d 836, 845 (1995), and Waters Landing

Limited Partnership v. Montgomery County, 337 Md. 15, 39,

650 A.2d 712, 724 (1994), held that the heightened scrutiny

required by Dolan did not apply where the exaction required

the payment of money.5

(footnote continued)

Association of Georgia, Inc. v. City of Atlanta, - U.S. -, 115 S. Ct. 2268

(1995) (Thomas, J., dissenting). In as much as the petition now pend-

ing before the Court involves an exaction, nothing more will be said

about non-exaction situations.

5 Most land use cases are brought in state courts because of the

desire of federal courts to avoid acting as super boards of zoning

appeals. See, e.g., Village of Belle Terre v. Boraas, 416 US. 1, 13 (1974)

(Marshall, J., dissenting); River Park, Inc. v. City of River Park, 23 F.3d

164, 165 (7th Cir. 1994); and Studen v. Beebe, 588 F.2d 560, 562 (6th

Cir. 1978). Even so, at least one lower federal court has already held

that Dolan is inapplicable where the exaction consists of money. Gar-

neau v. City of Seattle, 897 FSupp. 1318, 1325 (W.D. Wash. 1995). It is

probably fair to say that other lower federal courts will have to deal

with the extent of Dolan in the near future.

9

State courts are also split as to whether an exaction

imposed as the result of a legislatively adopted rule of gen-

eral application is governed by Dolan’s requirement of

heightened scrutiny. Amoco Oil Co. v. Village of Schaum-

burg, 277 Ill.App.3d 926, 939, 661 N.E.2d 380, 389-390

(1995), app. denied, 167 Ill.2d 549, 667 N.E.2d 1055 (1996),

J.C. Reeves Corp., supra, 131 Or.App. at 623, 887 P2d at 365,

and Schultz v. City of Grants Pass, 131 Or.App. 220, 226-227,

884 P2d 569, 572-573 (1994), all held that Dolan applies

when the exaction is imposed through a legislative enact-

ment. Further, Justice Mosk, in his concurring opinion in

Ehrlich, argued that “even generally applicable laws which

authorize the physical occupation of the property are tak-

ings...” (12 Cal.4th at 901, n.4, 50 Cal. Rptr.2d at 249, n.4,

911 P2d at 460, n.4)

On the other hand, the majority in Ehrlich stated that

legislatively imposed exactions would not be subject to

Dolan’s heightened level of scrutiny. (12 Cal.4th at 876, 50

Cal.Rptr.2d at 257, 911 P2d at 443-444.) This is the same

position taken in Loyola Marymount University v. Los Ange-

les Unified School District, 45 Cal.App.4th 1256, 1271, 53

Cal. Rptr.2d 424, 435 (1996), San Mateo Coastal Landowners’

Association v. County of San Mateo, 38 Cal.App.4th 523,

548-549, 45 Cal. Rptr. 2d 117, 131-132 (1995), Southeast Cass

Water Resource District v. Burlington Northern RR, 527

N.W.2d 884, 896 (N.D. 1995), and Waters Landing, supra, 337

Md. at 39, 650 A.2d at 724.

State courts of last resort and lower state appellate

courts are all wrestling with what the Court meant in Dolan.

In the two years since the Court handed down its decision in

Dolan, courts of last resort all over the country have come to

diametrically different results based on widely differing

understandings of its reach. The situation is not likely to get

any better — and the uncertainty is not likely to be

reduced — in the near future unless the Court grants the

10

petition and tells the business and legal world what Dolan

really means.

IV.

CONCLUSION

The Court’s decision in Dolan was of constitutional

magnitude; its application should be uniform throughout the

United States regardless of whether a case is brought in a

federal or a state court. The courts today are like the prover-

bial team of blind men trying to describe an elephant. The

differences in the interpretation of Dolan’s reach means that

the result in a particular case which goes anywhere beyond

the dedication of land in an adjudicative context is a function

of where the land is located and the case is brought. That is

no way to implement a rule of constitutional dimensions.

In some courts, the heightened scrutiny required by

Dolan will apply even though the exaction consists of money

or services; in others, it will apply only if the exaction con-

sists of the dedication of land. In some courts, the heightened

scrutiny required by Dolan will apply even though the exac-

tion has been imposed at a legislative level. In others, it will

apply only if the exaction is imposed on an ad hoc basis.

Rarely has a decision by this Court received so many

different interpretations by so many in such a short time. All

of those involved with the process — the staffs of the munici-

palities who are going to have to decide what exactions can

legitimately be imposed, the landowners who are going to

have to satisfy those exactions, the lawyers who are going to

have to advise both the municipalities and the landowners,

and the judges who are going to have to decide the validity of

the exactions — need and deserve the Court’s guidance as to

what circumstances invoke Dolan’s heightened scrutiny. The

uncertainty must, and can be, resolved by granting

Mr. Ehrlich’s petition for writ of certiorari.

1]

Accordingly, the NAHB respectfully requests that the

Court grant Mr. Ehrlich’s petition.

*Counsel of Record

Respectfully submitted,

KENNETH B. BLEY*

COX, CASTLE & NICHOLSON, LLP

MARY V. DICRESCENZO

Attorneys for Amicus Curiae

THE NATIONAL ASSOCIATION

OF HOME BUILDERS