Opposition Brief — Leonard v. Town of Brimfield

Supreme Court, U.S j

Pe & BD

*\

\e) OCT 15 1996

A

No. 96-389 CLER!

—— eee ees

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

MARY E, LEONARD

Petitioner,

vs.

TOWN OF BRIMFIELD and

CYNTHIA K.POWERS,

Respondents.

On Petition for Writ of Certiorari to the Supreme Judicial Court

of the Commonwealth of Massachusetts

RESPONDENTS’ BRIEF IN OPPOSITION

JOEL B. BARD

WILLIAM HEWIG, III

Counsel of Record

MICHELE E. RANDAZZO

KOPELMAN AND PAIGE, P.C.

Attorneys for Respondents

31 St. James Avenue

Boston, Massachusetts 02116

(617) 556-0007

QUESTION PRESENTED

Whether the Supreme Judicial Court of Massachusetts

correctly determined that Petitioner Mary Leonard, who

purchased an undivided piece of land subject to long-

Standing zoning regulation through a local zoning by-law,

did not suffer a compensable “taking” under the Fifth

Amendment to the United States Constitution where the

Town of Brimfield Zoning Board of Appeals imposed a

condition upon its grant of a special permit to Leonard,

allowing her to build a residence upon part of her still

undivided property, and it was undisputed that the

remainder of her property could be used for agricultural,

horticultural, and recreational purposes.

ii

TABLE OF CONTENTS

Page

Capello PaCS wn 6 diet tenieeewes i

SOND CE COMBO none cc ae en oe 3 es li

Pe ge eee Perr rk err re amr iv

Constitutional and Statutory

FUOWMIOIE PUIIOG on ins on 0 ce ee aS 8 l

stateenent Of Tae CANO is eS ee ee ee 2

A. Procedural History ................ 2

SB. TWO MOCO BOW ks av ieee basen i 4

Background Facts . 0... ccc eeese 5

Factual and Legal

Mischaracterizations ............. 7

Reasons for Denying the Writ ................ 10

I. This Case Presents A Poor Vehicle For Review

Of The Question Presented Because The Petition,

At Best, Merely Contests The Supreme Judicial

Court’s Application Argued By Leonard To

Factual Determinations Made At Trial And

Upheld Om Apnetl. . csc cet eewene 10

ili

Table of Contents

Page

A. Under the Supreme Court’s Rules, a

writ of certiorari is rarely granted where

the error asserted consists of erroneous

factual findings or misapplication of a

properly stated rule of law. ....... 10

B. Leonard does not challenge the standard

of review applied by the SJC, but only its

application to the facts. ........... 11

Il. The Petition For Writ Of Certiorari Fails

4 To Identify An Appellate Issue Of Sufficient

General Importance To Justify The Grant of

eT Ee REE MELE CREE 14

A. The Michigan Court of Appeals decision

relied upon by Leonard is not a decision

of a state court “of last resort” and, in

any event, does not conflict with the

decision of the Massachusetts Supreme

NE CE a so A nine 6k en 0 888 14

B. Because Leonard has not challenged the

legal standard applied by the Supreme

Judicial Court, and because factual

deficiencies in the record preclude any

iv

Table of Contents

Page

result other than that reached by the

Supreme Judicial Court, any opinion

issued by this Court on the merits

would constitute an impermissible

ORVEREEY CRU. i. 6 Ne cs 17

Il. Leonard’s Efforts To Re-Litigate The Factual

Findings Of The Lower Court Without A

Substantial Basis For Appellate Review By

This Court Renders This A Frivolous Appeal. . 19

oe ere ig Sr yoo CS EY or Pe 21

TABLE OF CITATIONS

Cases Cited:

California Retail Liquor Dealers Ass’n v.

Midcal Aluminum, Inc..,

Tas Sas OU cos OR RCE Se eae Sas 2

Grayson v. Harris,

2G US. Faw tees eNO ees 16

Kehr v. Smith Barney, Harris Upham & Co.,

736 FBR Tee Ce TP ec ee eee en 19

Vv

Table of Citations

Page

Lloyd A. Fry Roofing Co. v. Wood,

ee Re 257 Ce oss BSc ee ee 16

Lucas v. South Carolina Coastal Council,

We Ads FOR CR Siac ke eS 16

Portland Ry. Co. v. Railroad Commission of Oregon,

Ba ee OT CAB es eee ECE ere. 17

Ruckelshaus v. Monsanto Co. .,

Or ar ee ss Sa. ES SEES 11

Stelly v. C.I.R.,

761 F.2d 1113 (Sth Cir. 1985),

CON, GG, Ore 4G. TE ee ee. 19

United States v. Johnston,

eet Se ee ee ee 17

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

OOP im. Bee teen es eI Oeek e. 11

Zacchini v. Scripps-Howard Broadcasting Co..,

GSD UA, DOR CISG Oe 8s es So SKE EES. 17

Vi

Table of Citations

Page

Constitutions Cited:

Michigan Constitution, Art. VI, §1 ............ 14

Statutes Cited:

pone. Goo, Bi: Gs GR BNE 0 kek a Re 6

pines. et. Fa: Oi: SE REP ih ek hw ee Bs aS 8

Rules Cited:

ee CA. BR 1G 6 ek KAS Ree passim

APPENDIX

Appendix A - Excerpts From the Record Appendix .. la

Appendix B - Cover Sheet of Application for Leave to

Appeal to Michigan Supreme Court in the

case of K&K Construction, Inc., J.F.K.

Company, and Resorts And Company v.

Department of Natural Resources .. 37a

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to those constitutional provisions referenced

by Petitioner in her Petition for a Writ of Certiorari, the

Respondents rely upon the following authorities:

Michigan Constitution, Article VI, Section 1, which

provides:

Judicial power in court of justice; divisions. Sec. 1.

The judicial power of the state is vested exclusively in one

court of justice which shall be divided into one supreme

court, one court of appeals, one trial court of general

jurisdiction known as the circuit court, one probate court,

and courts of limited jurisdiction that the legislature may

establish by a two-thirds vote of the members elected and

serving in each house.

Mass. Gen. L. ch. 40A, §17, which provides, in

pertinent part:

Any person aggrieved by a decision of the board of

appeals or any special permit granting authority...may

appeal to the land court department, [or] the superior court

department in which the land concerned is situated...by

bringing an action within twenty days after the decision has

been filed in the office of the city or town clerk.***

2

Mass. Gen. L. ch. 41, §81P, which provides, in

pertinent part:

Any person wishing to cause to be recorded a plan of

land situated in a city or town in which the subdivision

control law is in effect, who believes that his plan does not

require approval under the subdivision control law, may

submit his plan to the planning board of such city or town

in the manner prescribed by [Mass. Gen. L. ch. 41,]

section eighty-one T, and, if the board finds that the plan

does not require such approval, it shall forthwith, without a

public hearing, endorse thereon...the words “approval

under the subdivision control law not required” ...and such

endorsement shall be conclusive on all persons.***

Section VI-C of the Brimfield Zoning By-law in effect

at the relevant times of this action, which provides that:

1. Ina Flood Plain District, uses otherwise permitted

as set forth in Section IV-A through IV-B above may be

authorized after a finding by the Board of Appeals, after a

hearing with due notice given, that said use will not

endanger the health or safety of the occupants thereof.

STATEMENT OF THE CASE

A. Procedural History

This petition for writ of certiorari arises out of one of

three cases brought by Petitioner Mary Leonard [hereinafter

“Leonard”] against the Respondent Town of Brimfield

a i ier eer

3

{hereinafter “Town”].' Those cases are:

1. Mary E. Leonard v. Town of Brimfield, Hampden

Superior Court C.A. No. 87-592 (filed April, 1987). This

case alleged that the Town maintained multiple culverts

which discharged unreasonable and unnaturally large

volumes of water onto Leonard's property, thus resulting in

a nuisance. This case was settled by agreement of the

parties in consideration of $60,000.00, with a Release

granted by Leonard to the Town (Record Appendix at p.

19-20 [hereinafter"R.A. _"}’; see also Petitioner's

Appendix at p. A3-A4 [hereinafter "Pet. App. _")).

2. Mary Leonard v. Brimfield Zoning Board of Appeals,

Hampden Superior Court C.A. No. 87-1077 (filed April,

1987). This case appealed as unlawful, arbitrary and

Capricious the June 2, 1987 decision of the Brimfield

Zoning Board of Appeals granting a Special Permit with

conditions, allowing Leonard to build above the 370 foot-

elevation line. After a jury waived de novo trial held on

October 6-7, 1987, the superior court affirmed the Board's

decision. (R.A. 40-42). Leonard appealed to the

Massachusetts Appeals Court, which affirmed the lower

court's decision, 27 Mass. App. Ct. 1408 (1989). (R.A.

' Cynthia Powers, the other named Respondent, is only nominally

considered as part of the Petition for Writ of Certiorari and the

challenged state court decision.

* For this Court’s convenience, all Record Appendix references are

reprinted in “Appendix A,” infra, with the exception of the Town of

Brimfield Zoning Map, contained at R.A. p. 177.

4

165; Pet. App. A3). Further appellate review was denied

by the State's highest court, the Massachusetts Supreme

Judicial Court, on August 17, 1989, 405 Mass. 1204

(1989). (R.A. 165; Pet. App. A3).

3. Mary E. Leonard v. Town of Brimfield and Cynthia

K. Powers, Individually and as Chairperson of the

Brimfield Conservation Commission, Hampden Superior

Court C.A. No. 87-1238 (filed July, 1987). This case

alleged that the Town's enforcement of its zoning by-law

effected a "taking" of Leonard's land, and violated her civil

rights. After trial, the superior court found in favor of the

defendants (R.A. 163-168; Pet. App. A6), and Leonard

appealed to the Massachusetts Appeals Court. (R.A. 179).

The Supreme Judicial Court transferred the case from the

Appeals Court on it own initiative, and rendered a decision

on July 11, 1996 (Pet. App. Al), affirming the trial court's

decision in fayor of the Town. Leonard then filed this

petition for writ of certiorari.

B. The Record Below

Upon review of Leonard’s Petition, it is evident that her

real complaint lies, not with the Supreme Judicial Court's

decision but with her own failure at trial to introduce

sufficient evidence to support her claims. In an effort to

create an appellate issue, Leonard relies upon a series of

factual allegations in her petition that simply are not part of

the record below, were not adduced at trial in the

underlying case, and cannot provide a basis for review by

this Court.

5

Background Facts

In 1986, Leonard purchased an approximately 16-acre

lot located in Brimfield, Massachusetts (R.A. 59-60), in an

area zoned as the "Flood Plain District" as noted on the

Town of Brimfield's Zoning Map. (R.A. 172, 177).

Under Brimfield Zoning Bylaw Section VI-C (Flood Plain

Restrictions), no building permit could issue without

Leonard first obtaining a special permit from the Brimfield

Zoning Board of Appeals [hereinafter "ZBA"]. (R.A. 171,

175). Leonard applied for a building permit from the

Building Inspector, and in fact received such a permit, but

it was later revoked when the Building Inspector

determined that the property was located in the Flood Plain

District. (R.A. 171-172).

Leonard accordingly applied to the ZBA for a special

permit (R.A. 171, 175), and after a public hearing held on

May 4, 1987, the ZBA granted Leonard a special permit,

with conditions [hereinafter “the ZBA’s June 2, 1987

Special Permit”]. (R.A. 164, 175-176). The ZBA made

specific findings of fact, including that Leonard's lot had an

elevation of 360 feet (above sea level) in the vicinity of the

river, to approximately 400 feet at the most northeasterly

corner of the lot, with a large portion of the lot lying at

elevations of 360 to 365 feet. (R.A. 175). Within this area

of 360-365 foot elevation, the ZBA determined that

extensive wetlands existed. (R.A. 175). The ZBA further

found that flood crest levels of the river would create a

hazard at the 360-365 foot elevation, and that septic systems

lesated at this elevation would be rendered useless at flood

6

crest levels and most likely would contribute pollutants to

the environment. (R.A. 175). Finally, the ZBA noted that

the domestic water supply would be threatened at flood

crest levels and due to septic system failures. (R.A. 176).

Based upon these findings, the ZBA determined that

building within the 360-365 foot elevation area would

endanger the health and safety of the occupants, affect the

environment, and possibly endanger neighboring

inhabitants. (R.A. 175). Despite the potential harm posed,

the ZBA felt that prohibiting property use for the entire

property would be "extreme and unfair" to Leonard. (R.A.

176). Therefore, t > ZBA granted Leonard a special

permit, conditioning che approval upon the restriction that

construction on the property be limited to land located at

and above the 370-foot elevation mark, a five-foot safety

factor from the 360-365 foot elevation. (Pet. App. A3;

R.A. 176). Approximately 6 acres of the 16-acre lot were

available for building. (Pet. App. A3). Leonard built her

house on the property within that portion of the land above

the 370-foot elevation mark. (See, e.g., Pet. App. Al3;

R.A. 93).

Leonard first appealed the ZBA's decision as

“discriminatory, unreasonable, and arbitrary," to the

Hampden County Superior Court, pursuant to Mass. Gen.

L. ch. 40A, §17 (see Procedural History, Section A.2,

above). (R.A. 40-42, 165). After trial, the judge upheld

the ZBA's decision. (R.A. 40-42). Leonard then appealed

the trial court's decision to the Appeals Court, which

affirmed the lower court's ruling, 27 Mass. App. Ct. 1408

Pe

7

(1989). (R.A. 165). Further appellate review was denied

by the Supreme Judicial Court on August 17, 1989, 405

Mass. 1204 (1989). (R.A. 165). Following the exhaustion

of these appeals, Leonard built her house on that portion of

the lot located above the 370-foot elevation mark. (R.A.

93).

At the same time she was appealing the ZBA's decision,

Leonard filed two other actions in Hampden County

Superior Court, as previously noted. One of these actions

was settled by the parties (see Procedural History, Section

A.1, above), and the second action (see Procedural History,

Section A.3, above), forms the basis for the present Petition

for Writ of Certiorari.

Factual and Legal Mischaracterizations

Perhaps the best way to identify the numerous mis-

characterizations of fact and law Leonard makes in her

Petition is to emphasize what this case does not involve.

First, this case is not about the Town's (ZBA's) purported

“decision to enforce a one thousand (1,000) year flood plain

zone." (Petition at 3-4, 7). Leonard concedes that the

validity of the ZBA's June 2, 1987 Special Permit "is not at

issue." (Petition at 25). Nor could it be, as the doctrine of

res judicata bars Leonard’s efforts at this Stage to relitigate

the propriety of the ZBA's actions. The legal validity and

enforceability of the ZBA’s June 2, 1987 Special Permit

was affirmed by three competent reviewing courts, through

to the Massachusetts Supreme Judicial Court (hereinafter

“SJC”], which, as noted, denied further appellate review on

August 17, 1989.

Moreover, the record evidence does not support, even

marginally, Leonard’s bare assertion that the ZBA imposed

a "one thousand (1,000) year flood plain zone for the first

time, and required a special permit to build in this flood

plain (at any elevation) for the first time...." (Petition at

25). There is no evidence on the record that the 370-foot

elevation mark represents a one thousand year flood plain

zone, and Leonard has pointed to no such record evidence

(see, e.g., Petition at 7-8 n.4), except her own extrapolation

on appeal, that if 360 feet represents the 100 year flood

plain and 365 feet represents the 500 year flood plain, then

370 feet must represent the 1,009 year flood plain. There

is simply no evidence on the record to support this

presumption. There is no evidence from the record below

that any witness provided the engineering, geological, or

topographical foundation for such an extrapolation. The

record below does not even contain a simple statement by

any witness that the 370-foot elevation represents the 1,000

year flood plain. Perhaps more tellingly, even Petitioner's

complaint and pre-trial memorandum fail to identify a

1,000 year flood plain zone. (R.A. 3-9, 10-16).°

> Leonard herself is not consistent on the issue of what a 370-foot

elevation represents. In some instances, such as in her petition, she

contends that it is equivalent to a 1,000 year floor plain. In others, such

as her pre-trial memorandum (R.A. 13-14), Leonard asserts that it is

equivalent to a 1,200 year flood plain. Finally, in her complaint,

Leonard merely states that the 370-foot elevation resulted in a flood

plain zone that “substantially exceed[ed]” the 500 year flood plain.

(R.A. 4).

9

This case also does not involve multiple subdivided lots.

(Petition at 4-5, 9-10). The trial record Clearly establishes

that Leonard had not filed with the Brimfield Planning

Board a plan subdividing her land, as required under Mass.

Gen. L. ch. 41, §81P, at the time she applied for a special

permit. (Petition at 5; Pet. App. Al2). The property was

therefore undivided at all relevant times to her Claim: at the

time she petitioned the ZBA for a Special Permit (May 4,

1987); at the time the ZBA issued its Special Permit (June

2, 1987); and at the time she commenced the instant suit

(July 8, 1987) (R.A. 9). The trial judge properly made a

factual determination that at the time Leonard commenced

this underlying lawsuit, "the Subject property was a single

16-acre lot and the [Petitioner] had taken no action to

subdivide her property." (Pet. App. A24). This

determination was upheld by the SJC as supported by the

record. (Pet. App. Al2).

Finally, as stated above, this case is not about an error

of law by the SJC in applying a takings analysis under

federal law. That court, in fact, adopted completely

Leonard’s version of federal case law, and her proffered

legal analysis (the so-called “three-pronged test”). Cf

Brief of Mary E. Leonard, p. 22, et seg. and SJC’s

analysis, Pet. App. A8.

10

REASONS FOR DENYING THE WRIT

THIS CASE PRESENTS A POOR VEHICLE FOR

REVIEW OF THE QUESTION PRESENTED,

BECAUSE THE PETITION, AT BEST, MERELY

CONTESTS THE SUPREME JUDICIAL COURT'S

APPLICATION OF THE LEGAL STANDARD

ARGUED BY LEONARD TO FACTUAL

DETERMINATIONS MADE AFTER TRIAL AND

UPHELD ON APPEAL.

A. Under The Supreme Court’s Rules, A Writ Of

Certiorari Is Rarely Granted Where The Error Asserted

Consists Of Erroneous Factual Findings Or

Misapplication Of A Properly Stated Rules of Law.

Rule 10 (last ¥) of the Rules of the Supreme Court

provides that "[a] petition for writ of certiorari is rarely

granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated

rule of law." Here, Petitioner challenges exactly what the

Supreme Court has cautioned will not be generally

considered appropriate for certiorari review: factual

findings and the Massachusetts Supreme Judicial Court's

application of a standard proffered by Leonard herself. The

Petition for Writ of Certiorari should therefore be denied.

BN ee Pit td 6 POE RO EN EE ol go

11

B. Leonard Does Not Challenge The Standard Of

Review Applied By The SJC, But Only Its Application

To The Facts.

The three factors discussed by the SJC in determining

whether a compensable taking had occurred were the same

three factors argued by Leonard as the appropriate standard

of review in takings claims under federal law. See Brief of

the Plaintiff-Appellant, at p. 13, Leonard v. Town of

Brimfield, et al., 423 Mass. 152 (1996) (No. SJC-07008).

Specifically, the SJC addressed the "(1) ‘the economic

impact of the regulation on the claimant’: (2) ‘the extent to

which the regulation has interfered with distinct investment-

backed expectations’; and (3) ‘the character of the

governmental action.’" (Pet. App. A8). Leonard does not

challenge that standard here. (Petition at 16).

Rather, what Leonard really argues is that the SJC

misapplied her own proffered "standard" and made

erroneous factual findings against her. For instance, the

SJC applied the “distinct investment-backed expectations”

prong proposed by Leonard, and concluded that on the

facts, her expectations were not reasonable, because they

were made without considering the pre-existing zoning

restrictions on the property. (Pet. App. A9-A14). Accord

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984);

Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.

155, 161 (1980). Implicit in the SJC’s determination is the

fact that the record evidence was insufficient to show that

any economic impact Leonard allegedly suffered was

severe. (Pet. App. A9-A1l4). Any analysis of the SJC’s

12

decision will therefore be a fact-bound determination,

requiring extensive examination of the record below. Thus,

this case presents a poor vehicle for analyzing the question

presented. See California Retail Liquor Dealers Ass'n v.

Midcal Aluminum, Inc., 445 U.S. 97, 111-112 (1980)

(Supreme Court customarily accepts factual findings of state

courts in the absence of “exceptional circumstances”)

(citing Lloyd A. Fry Roofing Co., infra). A petition for a

writ of certiorari should not be granted where, as here, the

asserted error consists of erroneous factual findings or

misapplication of a properly stated rule of law. Supreme

Ct. R. 10.

Should the Court accept this case for review, it would

find that the record cannot support a finding that a

compensable taking occurred. This would be particularly

evident on the essential fact questions regarding valuation

of the subject property. Assuming arguendo that Leonard's

investment backed expectations were reasonable in light of

the preexisting zoning restrictions, the record contains no

comparative “before and after” valuation evidence from

which a reviewing court could determine the economic

impact of the ZBA’s June 2, 1987 Special Permit. The

only valuation evidence to be found in the record is trial

testimony from Leonard’s expert about the supposed value

of subdivided building lots. The record is fatally silent

about whether this supposed value is greater than, or less

than, the agricultural, horticultural or recreational

alternatives. In fact, there is no record evidence to support

even a finding that Leonard’s inability to build on certain

portions of the property due to the 370 foot elevation

ee OES eA tN AUER

Bs Cha i tat EP LIP 8D.

13

restriction decreased the value of the property, in light of

the other available uses listed above. It will, therefore, be

impossible for any reviewing court to reach any supportable

conclusions about the economic impact upon Leonard, if

any, of the ZBA’s June 2, 1987 Special Permit.

This lack of evidence was recognized by the SJC, which -

Stated in its decision: “the evidence was insufficient to show

that the economic impact was severe.” (Pet. App. A13).

Leonard’s failure of proof at the trial level presents an

incurable flaw to the worthiness of this case for certiorari

review, and this Court should deny Leonard’s Petition.

Finally, Leonard contends that the ZBA's actions

"should be deemed a ‘taking’ because it was

discriminatory...." (Petition at 27 [emphasis added]). In

her argument, Leonard suggests, without any supporting

citation to the record, that the present case "was the first

time that Brimfield enforced its flood plain zone.” (Petition

at 24). Regardless of whether this assertion has any

relevance to a takings analysis, the issue was not fully or

properly developed on the trial record, as indeed it should

not have been pursuant to the doctrine of res judicata. The

claim that the ZBA’s June 2, 1987 Special Permit was

arbitrary, capricious or discriminatory had previously been

litigated through to a final conclusion. (See Procedural

History, Section A.2, above; see also Pet. App. A70-A75).

Leonard’s efforts to color in that fashion the trial below

were properly objected to as being barred by the doctrine of

res judicata and sustained by the trial judge. (See, e.g.

R.A. 109-110). Furthermore, the SJC correctly noted in its

14

decision that “the validity of the Board’s enforcement of

this zoning by-law has been adjudicated.” (Pet. App. A7).

Should this Court grant Leonard’s certiorari petition, it

would find that, as is also the case with the question of

proving severe economic impact, the determination of

discriminatory effect upon Leonard would be at best an

exhausting fact-bound exercise, and at worst, a task made

impossible by the incompleteness of the record. This case

is a completely inappropriate vehicle for the question

presented, and accordingly, the Court should deny

Leonard’s Petition.

Il.

THE PETITION FOR WRIT OF CERTIORARI

FAILS TO IDENTIFY AN APPELLATE ISSUE OF

SUFFICIENT GENERAL IMPORTANCE TO JUSTIFY

THE GRANT OF CERTIORARI.

A. The Michigan Court Of Appeals Decision Relied

Upon By Leonard Is Not A Decision Of A State Court

"Of Last Resort" And, In Any Event, Does Not Conflict

With The Decision Of The Massachusetts Supreme

Judicial Court.

Rule 10 of the Rules of the Supreme Court provides that

a petition for writ of certiorari will only be granted for

"compelling reasons." In considering whether to grant :

certiorari, this Court considers whether "a state court of last

resort has decided an important federal question in a way

that conflicts with the decision of another state court of last

on wo” cli

etalon La anal oe CHS

Wet hg Pen RROD OLN VAIN AP MF ma Orme

15

resort ... Supreme Ct. R.10(b) [emphasis added].

Apparently in an effort to fit within this provision of the

Rules, Leonard proffers a Michigan Court of Appeals

decision, K&K Construction, Inc., J.F.K. Company, and

Resorts and Company v. Department of Natural Resources

and Michigan Association of Home Builders, 217 Mich.

App. Ct. 56 (1996), which she claims "directly conflicts

with the reasoning of the Massachusetts [Supreme Judicial]

Court ...." (Petition at 12). This argument is both

irrelevant and unpersuasive.

First, it is plainly irrelevant because the Michigan Court

of Appeals is not the court of "last resort" in the State of

Michigan. Michigan Constitution, Article VI, §1. In fact,

the Clerk's Office for the Michigan Supreme Court has

advised that an application for leave to appeal this decision

is currently pending before the Michigan Supreme Court.

A copy of the cover page of the Application for Leave to

Appeal is included in the Town’s “Appendix B,” infra.

This Court should not exercise its discretion and expend

limited judicial resources to review a case which cannot

even reach the threshold showing of a reviewable conflict.

Secondly, Leonard’s argument is unpersuasive because

even if the decision were from Michigan’s court of last

resort, the decision on its face does not conflict with the

SJC’s decision in one critical respect. In K&K

Construction, the Michigan Court of Appeals addressed a

takings claim where the trial court made a factual

determination that the property at issue was rendered

"essentially worthless as commercial real estate" by

16

restrictions under the Michigan Wetlands Protection Act.

(Pet. App. A35; see also 27 Mich. App. Ct. at 60).

Determining that this factual finding was not clearly

erroneous, the K&K Construction court analyzed the

takings issue pursuant to both federal and state authorities

in which a claimant was denied all economically viable (or

beneficial or productive) use of the property as a result of

governmental regulation. (Pet. App. A39-A40, A55; see

also 27 Mich. App. Ct. at 61-62, 68-67).

In contrast, the SJC decision challenged herein did not

involve or establish a deprivation of all "economically -

viable" or "economically beneficial or productive" use of

Leonard’s property. The record indicates that Leonard was

allowed to build a house on her property, and additionally,

that the entire property is suitable for agricultural,

horticultural and recreational purposes, and in fact, had

been used for agricultural purposes prior to Leonard’s

purchase of the land. (R.A. 93-94; see also Pet. App.

Al13). Furthermore, as noted earlier, it cannot even be

established from the record whether those viable alternative

uses were of greater or lesser value to Leonard.

This is a critical distinction because if the Court

wishes to review claims for takings damages in instances of

less than a total “deprivation of all economically feasible

use,” see Lucas v. South Carolina Coastal Council, 505

U.S. 1003, 1016-1017 n.7, this case is not the appropriate

vehicle to do so. Because the facts are totally

distinguishable on the key point, the Michigan Appeals

Court and Massachusetts SJC decisions do not present clear

Peer ee eae

ION A arnt Naa ee tli eS

PD reshihe

17

conflicting issues of federal law ripe for review by this

Court.

B. Because Leonard Has Not Challenged The Legal

Standard Applied By The Supreme Judicial Court, And

Because Factual Deficiencies In The Record Preclude

Any Result Other Than That Reached By The Supreme

Judicial Court, Any Opinion Issued By This Court On

The Merits Would Constitute An Impermissible

Advisory Opinion.

As discussed above (Section I., supra), Leonard has not

challenged the legal standard articulated by the SJC in its

analysis of the regulatory takings claim, and in fact was the

party who proffered this standard on appeal from the trial

court's decision. Brief of the Plaintiff-Appellant at p. 13-

14, Leonard v. Town of Brimfield, et al., 423 Mass. 152

(1996) (No. SJC-07008). Furthermore, also as discussed

above, Leonard failed to adduce sufficient evidence at trial

to support her takings claim, under eit/ver the standard of

review applied by the trial court or by the SJC. Leonard

essentially asks this Court to readjudicate the factual

findings of the trial court, which this court should not do

except in exceptional circumstances. See Lloyd A. Fry

Roofing Co. v. Wood, 344 U.S. 157, 160 (1952); Grayson

v. Harris, 267 U.S. 352, 358 (1925) [citations omitted];

Portland Ry. Co. v. Railroad Commission of Oregon, 229

U.S. 397, 412 (1913). (the Supreme Court will not

generally reexamine state court findings and conclusions of

fact). As this Court has plainly stated: "We do not grant

certiorari to review evidence and discuss specific facts."

18

United States v. Johnston, 268 U.S. 220, 227 (1925).

Leonard’s petition asks the Court to do just that, and it

should therefore be denied.

Should this Court grant certiorari, it will be called upon

to render in substance an advisory opinion. It is well

established that the Supreme Court’s power is to “correct

wrong judgments, not to revise opinions.” Zacchini v.

Scripps-Howard Broadcasting Co., 433 U.S. 562, 566

(1977) (quoting Herb v. Pitcairn, 324 U.S. 117, 125-26

(1945)). In construing its own authority, this Court has

noted that “[w]e are not permitted to render an advisory

opinion, and if the same judgment would be rendered by the

state court after we corrected its views of federal laws, our

review could amount to nothing more than an advisory

opinion." Jd. Leonard’s petition seeks just this. Leonard

calls upon the Court to apply the same “three-pronged test”

which she advocated below and which was accepted by the

SJC to a factual record which, because she so improperly

and incompletely developed it at trial, could only serve to

support the SJC’s decision. Leonard’s Petition for a Writ

of Certiorari should be denied.

19

Il.

LEONARD’S EFFORTS TO RE-L’TIGATE THE

FACTUAL FINDINGS OF THE LOWER COURT

WITHOUT A SUBSTANTIAL BASIS FOR

APPELLATE REVIEW BY THIS COURT RENDERS

THIS A FRIVOLOUS APPEAL.

Rule 10 of the Rules of the Supreme Court provides that

a petition for writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law. Leonard

was successful in persuading the SJC to adopt the “three-

pronged test” which she proffered, but she could not muster

the facts to get the ultimate result she desired. Her petition

falls squarely into the category rarely granted under Rule

10.

Her petition also is frivolous because she flatly failed to

establish any conflict within the meaning of Rule 10(a)-(c).

The Michigan Court of Appeals is not a court of “last

resort” within the meaning of the Rule, and the case

Leonard relies upon is currently pending before Michigan’s

Supreme Court. Even if the Michigan decision had reached

a court of “last resort,” the two decisions are so factually

distinguishable on the key inquiry in regulatory takings

analysis - the extent of economic deprivation - that they still

present no meaningful conflict. Leonard’s representation or

implication to the contrary is without merit. If there were

other “compelling reasons” for accepting this case for

review, Leonard has failed to identify them.

20

Finally, Leonard’s petition is frivolous because it is

nothing more than a transparent attempt to re-litigate her

failed “1,000 year flood plain” crusade, which was long

ago properly laid to rest. In an apparent attempt to gain the

sympathy of this Court, Leonard riddles her Petition with

references to the so-called “1,000 year flood plain,” a

reference which is unsupported by the record below, about

which she herself has been factually inconsistent, and which

she concedes in her Petition “is not at issue.” (Petition at

25). This disingenuous tactic failed at the trial level. It

also failed before the SJC. In light of these repeated

failures and her concession that it is “not at issue,” it is

frivolous for Leonard to reincarnate her 1000 year flood

plain crusade before this Court.

An appeal is frivolous if the result is obvious or the

arguments advanced are wholly without merit. See, e.g.,

Stelly v. CJ.R., 761 F.2d 1113 (Sth Cir. 1985), cert.

denied, 474 U.S. 851; Kehr v. Smith Barney, Harris

Upham & Co., Inc. , 736 F.2d 1283 (9th Cir. 1984). The

Town has expended significant funds from the public fisc

over the past nine years in successfully defending the

ZBA's June 2, 1987 Special Permit, and Leonard’s

continued efforts to challenge the validity of the ZBA's

action, disguised now as a takings claim, supports a finding

that her Petition is frivolous. The Town, therefore, is

entitled to its costs and any other "just damages" as

determined by this Court pursuant to Rules 42 and 43 of the

Supreme Court.

21

CONCLUSION

The Massachusetts Supreme Judicial Court correctly

held that the Petitioner had not established a compensable

governmental "taking" of property under the Fifth

Amendment of the United States Constitution. Moreover,

Petitioner has failed to identify an appellate issue worthy of

consideration by this Court, as she seeks only to

readjudicate factual determinations long since established by

the Massachusetts trial court. Therefore, the Respondents

respectfully request that this Court deny the Petition for a

Write of Certiorari.

Respectfully submitted,

JOEL B. BARD

WILLIAM HEWIG, Ill

Counsel of Record

MICHELE E. RANDAZZO

KOPELMAN AND PAIGE, P.C.

Attorneys for Respondents

31 St. James Avenue

Boston, MA 02116

(617) 556-0007