# Opposition Brief — Ehrlich v. City of Culver City > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1294%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 519 U.S. 929 ## Text No. 96-238 CLER® In The Supreme Court of the United States October Term, 1995 . RICHARD K. EHRLICH, as Trustee of the 1985 Ehrlich Family Trust and as Trustee of the July 28, 1965 Trust, Petitioner, CITY OF CULVER CITY, CITY COUNCIL OF THE CITY OF CULVER CITY, STEVEN GOURLEY, JOZELLE SMITH, JAMES BOULGARIDES, PAUL A. JACOBS, Respondents. + On Petition For Writ Of Certiorari To The Supreme Court Of The State Of California ¢ BRIEF IN OPPOSITION * NorMan Y. HEerrinc City Attorney 9770 Culver Boulevard Culver City, California 90232-0507 (310) 253-5660 Counsel of Record JosepH W. PANNONE Kane, BALLMER & BERKMAN 515 South Figueroa Street Suite 1850 Los Angeles, California 90071-3301 (213) 452-0128 | Additional Counsel Continued On Inside of Front Cover] COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 Additional Counsel for Respondents BENJAMIN KAUFMAN FremuicH, KAUFMAN, Fox & SOHAGI The Wilshire Landmark, Suite 1230 11755 Wilshire Boulevard Los Angeles, California 90025-1518 (310) 477-7663 Beil Bis pnb ati Si, os rig > ah ye QUESTIONS PRESENTED FOR REVIEW The questions as framed by the petitioner seriously misstate the opinion of the California Supreme Court and the issues before this Court. The questions presented by the petition are more properly stated as follows: Whether a claim that the imposition of a recreation fee constitutes a “taking without a payment of just compensation” under the Fifth Amendment presents a “final judgment” within the meaning of 28 USC § 1257, where the Cali- fornia Supreme Court has remanded the claim to the respondent public agency and the lower courts of the State to determine “what, if any, recreational fee the evidence might justify.” Can the issue of whether an ordinance requiring a developer to commit one percent (1%) of the value of his proposed improvements to public art constitutes a “physical taking” under the Fifth Amendment, which was not pressed or passed upon in the lower courts, be raised for the first time in the petition? If the first question presented is answered in the affirmative, then may a public agency under any circumstances condition the grant of a discre- tionary upzoning of property on a requirement that a developer pay a fee as a partial mitigation of the impacts caused by the upzoning? If the second question presented is answered in the affirmative, then should this Court reverse its unanimous decision in Yee v. City of Escondido, 503 U.S. 519 (1992), and instead hold that regulation designed to pre- serve a community’s-aesthetics is a per se taking under the Fifth Amendment? TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ........... i TABLE CP ALI URGLC GG so canteen cok casnnedt buows iv STATEMENT. OF THB CAGE Ai occ sevasascavireens 1 A. Procedural Posture of This Case............. 2 B. The Allegation of Physical Invasion of Private Property Has Been Raised for the First Time in SIU TOR ak nn sn bh ddins Ci08 CON thane eet 4 C. : Se ARE PRO 0s kc ine seseeseneeccenbaneens 4 D. The City Was Not Required to Approve the ROOMS PORE Ss a ons ian censKsapenneeenees 5 E. Culver City Was Required to Approve a Gen- eral Plan Amendment before It Could Approve yh FOWRMOMG PIU «onc insccccccsescasasss 7 REASONS FOR DENYING THE PETITION......... 8 I. THE CASE IS NOT PROPERLY BEFORE THIS SIAR SOUPRPIRE Sc ce xepesiaccsbesieds 8 A. The Entire Matter Regarding the Recre- ation Fee is Still Pending in the Trial ROE io ind dcecccaev inca een nei nees 8 B. Until This Petition, Allegations Regarding the Art Program Were Never Raised ...... 15 Il. MITIGATION OF THE IMPACTS FROM A LAND USE CHANGE IS A CONSTITU- TIONAL EXERCISE OF A CITY’S POLICE PRPC Cass ua cadpaaee The petitioner’s complaint in the trial court only alleged that the art program unconstitutionally imposed a 5 In fact, during one of the appearances at the California Courts of Appeal, the petitioner’s counsel indicated that had it not been for the recreation fee, the petitioner would not have challenged the art program. It seems untenable that the petitioner would have waived his arguments regarding the art program, if indeed it was an actual physical intrusion on his property. 16 fee. No allegations were made regarding the placement of art on the petitioner’s property. This Honorable Court should not permit the petitioner, at this late date, to allege the art program somehow constitutes a physical invasion of private property. In Illinois v. Gates, 462 U.S. 213 (1983), Chief Justice Rehnquist reiterated the importance of the rule against deciding claims “not pressed nor passed upon” in state court. [D]ue regard for the appropriate relationship of this Court to state courts requires us to decline to consider and decide questions affecting the validity of state statutes not urged or considered there. Id., at p. 219.° Here there is no doubt that the petitioner’s original complaint did not raise the claim that a physical taking ® In Yee v. City of Escondido, 503 U.S. 519 (1992), this Court reiterated the Illinois rule before finding an exception to that rule because there were ambiguities in the complaint and lower court decisions as to whether the issue of both physical takings and regulatory takings had been raised. Notwithstanding the exception, this Honorable Court ultimately decided that the issue of regulatory taking had not been properly raised in the Yees’ petition and, therefore, refused to hear that argument. In doing so, Justice O’Conner’s opinion stated that: “While the regulatory taking question is no doubt important, from an institutional perspective it is not as important as the physical taking question.” Id. at p. 537. Because of the importance of the physical taking question, the petitioner should have raised it below. If permitted to raise it now for the first time, then this Court would be permitting a party to circumvent having fundamental issues addressed in the lower courts. 17 had occurred. The petitioner only claimed that the fee imposed under the art program did not meet constitu- tional standards. There is also no doubt that no court has ruled on whether the art program could constitute a physical invasion. This may be because the petitioner had originally decided to pay the in lieu fee. However, even after changing his mind and placing art work on the townhome site, while still in the California Supreme and appellate courts and even before this Honorable Court in Ehrlich v. Culver City, 512 U.S. __, 114 S.Ct. 273 (1994), the petitioner never raised the issue of a per se physical taking. Actually, if a physical taking had been at issue then this Court’s previous remand would have made no sense. That remand required the California Court of Appeal to reconsider its decision in light of this Court's decision in Dolan. As this Court is well aware, Dolan is not a per se takings case. Further, no reconsideration would have been needed if a per se taking had occurred. In order to preserve the important policy reason, which gives rise to the “not pressed or passed upon” rule and which was reiterated by Chief Justice Rehnquist in lilinois v. Gates, supra, this Court is respectfully requested to deny the petition. 18 Il. MITIGATION OF THE IMPACTS FROM A LAND USE CHANGE IS A CONSTITUTIONAL EXERCISE OF A CITY’S POLICE POWER The petitioner attempts to overturn 70 years of prece- dent with his argument that Culver City cannot mitigate the impacts resulting from a change of zoning. In Dolan, this Court noted the long line of cases [starting with the seminal case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)] which provide great deference to govern- mental land use regulations which do not entail physical intrusions into private property. A land use regulation does not effect a taking if it “substantially advances(s) legitimate state interests” and does not “den(y) an owner eco- nomically viable use of his land.” Agins v. Tiburon, 447 U.S. 255, 260 (1980). [Modifications original. ] Do'an, supra, at __, 114 S. Ct. at p. 2316. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, [citation omitted] than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the com- mon good. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). Culver City has clear authority to plan its community for various uses, including recreational facilities which the city council has determined are necessary for the PE ee 19 public health and welfare. This is a fundamental author- ity every city has under its police power. Village of Euclid, supra; Keystone Coal Association v. DeBenedictis, 480 U.S. 470 (1987); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). Based on the foregoing long-recognized authority, the City can regulate the use of land within its jurisdiction in such a way as to provide the community with the oppor- tunity for the placement of housing in certain areas, com- mercial and industrial uses in other areas and recreational facilities on the subject site. This is true even if, as in this case, the property owner no longer wants to provide the recreational use provided by Culver City’s land use approvals. This authority is no different from the Culver City’s power to require certain properties to be designated solely for rental housing for low- and moderate-income residents, television and movie studios, stadiums, or a regional shopping mall. A property owner’s options would be (i) to leave the land fallow and exclude all others from it, (ii) to use the property for a similar use subject to the approval of any necessary modification or (iii) to sell the property to another to be used as authorized or with modifications, but for the same use. This developer had the exact same options. It is also clear from the record that all three of the above options provided an economi- cally viable use for the subject site and that use was well within the property owner’s investment-backed expecta- tions. Ehrlich, supra, 12 Cal.4th at pp. 860-861, 882; Peti- tion Appendix A, pp. A4-A5, A339. The foregoing authority is even more applicable in this case because a General Plan amendment was 20 required. As stated previously, under long-standing Cali- fornia law, in order for the subject townhome project to be approved, Culver City had to approve a subdivision map. Cal. Government Code Section 66426. Culver City could not approve that map unless it could also find that the proposed project was consistent with the city’s Gen- eral Plan. Cal. Government Code Section 66474. To be able to make that required finding, Culver City had to amend its General Plan so that the land use designation for the subject property could be changed from commer- cial to residential. The importance of the General Plan in California has been clearly stated by the California Supreme Court. The General Plan is the “constitution” or “charter” for future development in California cities. Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (1990). Pursuant to the foregoing, Culver City could not approve the townhome project without a Gen- eral Plan amendment. It is also important to note that the commercial land use designation was the result of a 1974 request from the petitioner to change the designation so that the recre- ational facilities could be built. Under that commercial designation, Culver City could have permitted many dif- ferent non-residential uses on the site, including recre- ational uses. In determining whether land-use regulations effect a compensable taking, the owner’s reasonable investment-backed expectations are to be taken into account. Penn Central Transp. Co., supra, at p. 124. In this case, the petitioner sought and the city has approved an “upzoning” of his property beyond the petitioner’s rea- sonable investment-backed expectation in 1974 to have his property designated for recreational uses. Also, even 21 a regulation which deprives an owner of all economic use of his property will not effect a compensable taking if “the proscribed use interests were not part of [the prop- erty owner's] title to begin with.” Lucas v. South Carolina Coastal Council, 505 U.S. __., 112 S.Ct. 2886, 2899 (1992). Under the instant facts, neither test would have been violated had Culver City refused to approve the General Plan amendment necessary for the townhome develop- ment. The recreational use was originally requested by the petitioner. Petition at p. 4. That recreational land use was made applicable to the property before the petitioner became the owner. Petition at p. 5. Based upon the fore- going law and facts, Culver City was under no obligation to modify its General Plan to permit the residential pro- ject. In addition, providing for recreational facilities through conditions for dedication of land or payment of fees has been upheld as a valid governmental exaction. Even the majority of lower court decisions cited in Dolan in support of the “rough proportionality” rule validate the exercise of governmental authority to provide those public benefits. Jordan v. Menomonee Falls, 28 Wis.2d 608 (1965); College Station v. Turtle Rock Corp., 680 S.W.2d 802 (Tex. 1984); Call v. West Jordan, 606 P.2d 217 (Utah 1979); and Collis v. Bloomington, 310 Minn. 5 (1976). Based on the foregoing, Culver City had authority to regulate land within its jurisdiction in order to provide for recreational uses. Under that authority, it could have refused to change the commercial recreational land use designation on the site or, as it did in this case, required the payment of a fee to reduce the impacts which would result from that change in use. With that legitimate and in 22 this case compelling state interest established, the next inquiry is whether the recreation fee and that state inter- est have an “essential nexus”. There is no doubt such a connection exists. The sole purpose of the recreation fee is to provide for recreational facilities. In the findings made to support the imposition of the recreation fee, Culver City expressly determined the fee would be used for replacement of community recreational facilities which were provided by previous land use restrictions applicable to the site. Petition Appendix M, p. M5; Ehrlich, supra, at p. 862; Petition Appendix A, p. A6. Therefore, the recreation fee serves the same legitimate interest served by Culver City’s regu- lation of land uses, that is, to provide an opportunity for the creation of community recreational facilities. Based ‘ upon the foregoing, the Nollan “essential nexus” require- ment has been met. The petitioner states that if the mitigation fee is per- mitted to stand, then cities may require payments for removal of grocery stores, lawyers’ offices and saloons. Petition at p. 20. This contention is no more than unfet- tered and unsupported hyperbole. Any city would be hard pressed to be able to show, through satisfactory evidence, that loss of one grocery store, lawyer’s office or saloon could cause a significant impact on the community. When so many other similar establishments would likely be readily available, it would be virtually impossible to require some special mitiga- tion. 23 Unlike those uses, recreational facilities have been recognized to serve legitimate public interests and bene- fits, which can be served through development condi- tions. Based on the foregoing, this reason for granting review is clearly spurious. THE ART PROGRAM IS NOT A PER SE PHYSICAL TAKING OF PRIVATE PROPERTY A physical taking occurs only when a governmental agency physically occupies private property. Because the Escondido rent control ordinance does not compel a landowner to suffer the phys- ical occupation of his property, it does not effect a per se taking under Loretto. Yee v. City of Escondido, supra, at p. 539. Prior to that holding, this Court decided Loretto v. Teleprompter Man- hattan CATV Corp., 458 U.S. 419, 441 (1982): Our holding today is very narrow. We affirm the traditional rule that a permanent physical occu- pation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation. We do not, however, question the equally substantial authority upholding a State’s broad authority to impose appropriate restric- tions upon an owner’s use of his property. {Emphasis original.] As stated earlier, pursuant to Culver City’s art pro- gram a developer may place art work on a subject project 24 site and retain all ownership interest in that art work and the site. No publicly owned art work would be placed on the developer’s property nor is any property given to the city. Alternatively, the developer may pay an in lieu fee. If that fee is paid, then no art work, either private or public, is placed on the developer’s property. As discussed below, the program is more akin to aesthetic use regula- tions which require certain types of architectural design. Based on the foregoing, it is clear that no physical occu- pation of private property is required or even implicated by the art program. IV. NO HEIGHTENED SCRUTINY NEED BE APPLIED TO CULVER CITY’S ART PROGRAM Culver City’s art program requires neither a dedica- tion of land or other property, nor the payment of any fees. Instead, it provides the owner of a large develop- ment with at least two options.? An art work can be incorporated into the development project or an in lieu fee can be paid to the city which is deposited into a special fund for the purchase of art work. In the first instance, the developer retains all right, title and interest in the art work. In the latter, Culver City could use the money to purchase art work to be placed on public prop- erty. The choice is left to the absolute discretion of the developer. The art requirement was adopted by ordinance through a legislative process and applies throughout the 7 The program exempts small developers and developers of affordable or senior housing projects. 25 city. Petition Appendix N, pp. N1-N12. The city made specific findings regarding the purpose of and reasons for the art program. Petition Appendix N, pp. N1-N2. The requirement is similar to other development conditions related to aesthetics, such as setbacks, open space, land- scaping, color schemes, materials used and architectural design, all of which are valid exercises of a city’s police power. The art program does not require the developer to give anything to the city. Nothing in Nollan or Dolan indicates this Court intended to limit a city’s police power as it relates to aesthetic regulations. The art program is merely a logical extension of the city’s authority to regulate in the area of aesthetics. In numerous cases, this Honorable Court has stated that the police power extends to community aes- thetics. Penn Central Transp. Co., supra (requirement to preserve landmark structures); Agins, supra (condition requiring scenic views); City Council v. Taxpayers for Vin- cent, 466 U.S. 789 (1984) (prohibition against posting signs in the public right of way). The city’s art program is no more an exaction than are typical requirements for devel- opers to incorporate into their developments certain architectural and design elements. As noted by the Cali- fornia Supreme Court, such development conditions are clearly within the City’s police power. Ehrlich, supra, at pp- 885-886. Based upon the foregoing, Cuiver City’s art program does not constitute an exaction subject to review under the Nollan/Dolan standards. “We accept beauty as a proper community objective, attainable through use of the police power.” [Citation.] [J] Present day city planning would be virtually impossible under a doctrine 26 which denied a city authority to legislate for aesthetic purposes under the police power. Vir- tually every city in this state has enacted zoning ordinances for the purpose of improving the appearance of the urban environment and the quality of metropolitan life. Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 861-862 (1980) (footnote omitted).§ If this Court embraces the petitioner’s bold assertions that the art program must and cannot meet the Nollan and Dolan tests, then no city could require general landscap- ing, architectural amenities or other aesthetic related requirements as conditions of development. Under the petitioner’s theory, unless Culver City could deny a requested permit because of its direct impact on land- scaping, architecture or aesthetics in the city, it could not attach landscaping, and other design criteria as condi- tions of approval for a development. Such an absurd result is obviously not what this Court had in mind when it decided Nollan and Dolan. In fact, such a conclusion would be contrary to this Court’s direction relating to a city’s authority regarding aesthetics. As noted previously, this Court has stated time and again community aes- thetics are concerns to which a city’s police power 8 Although this ruling was reversed on other grounds in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the majority applauded the California Supreme Court’s holding that the police power extends to aesthetic regulation, pointing out that this had placed California law “in accord with that of most other jurisdictions.” Id. at p. 508 fn. 13; see, also Id. at pp. 530, 541 and 557 (agreement by concurring and dissenting opinions). 27 extends. The petitioner should not be permitted to uproot the long-standing holdings of this Honorable Court - holdings which have concluded that a substantial police power goal is promoted when a city regulates in order to advance aesthetic interests. CONCLUSION For the reasons stated herein, this Honorable Court is respectfully requested to deny the petition. Respectfully submitted, NorMAN Y. HERRING City Attorney 9770 Culver Boulevard Culver City, California 90232-0507 (310) 253-5660 | Counsel of Record JosepH W. PANNONE Kane, BALLMER & BERKMAN 515 South Figueroa Street Suite 1850 Los Angeles, California 90071-3301 (213) 452-0128 BENJAMIN KAUFMAN FREILICH, KAUFMAN, Fox & SOHAGI The Wilshire Landmark Suite 1230 11755 Wilshire Boulevard Los Angeles, California 90025-1518 (310) 477-7663 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1294%3A4. Public record. Not legal advice.