# Opposition Brief — Leonard v. Town of Brimfield

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1028

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1436%3A2. Public record. Not legal advice.