Opposition Brief — Buckley v. California Coastal Commission

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Supreme Court, U.S.

FILED

No. 98-1894

Supreme Court of the United

PEGGY ANN BUCKLEY,

Petitioner,

v.

CALIFORNIA COASTAL COMMISSION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORAR!

TO THE CALIFORNIA COURT OF APPEAL,

SECOND APPELLATE District, Division Two

RESPONDENT?’S BRIEF IN OPPOSITION

Bitt LOCKYER

Attorney General of the

State of California

RICHARD M. FRANK

Chief Assistant Attorney General

JAN S. STEVENS

Acting Assistant Attorney General

ALAN V. HAGER*

Deputy Attorney General

TERRY T. FUJIMOTO

Deputy Attorney General

300 South Spring Street

Los Angeles, California 90013

(213) 897-2701

* Counsel of Record Attorneys for Respondent

153544 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

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QUESTION PRESENTED

Did the California Coastal Commission engage in a

temporary taking where the property owner was not

prevented from building a house on her residential lot but

prevented only from grading in a ravine on that lot pending

resolution of a jurisdictional controversy?

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LIST OF PARTIES

Peggy Ann Buckley, the petitioner

John Buckley, Peggy Ann Buckley’s former husband

and a separately represented party in the proceedings below

The California Coastal Commission, an agency of the

State of California, created pursuant to the California

Coastal Act (Cal. Pub. Resources Code §§ 30000 et seq.),

the respondent

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TABLE OF CONTENTS

Page

Question Presented .......................... i

el cc li

Table of Contents ........................... lil

Table of Cited Authorities ................... iV

I ceeccscccescocceccs en. ]

Statement of the Case ........................ ]

Reasons for Denying the Writ ..............._. +

I. The Petition Fails To Address How The

Buckley Decision Presents An Issue

Supporting The Grant Of Certiorari ....... 4

II. The California Court Of Appeal’s Decision

In Buckley Correctly Applied Existing

Takings Law In Concluding That There Was

No Temporary a 7

A. The Court of Appeal in Buckley Relied

on Substantial Evidence that the Coastal

Commission was Pursuing Legitimate

State Interests and had not Deprived the

Buckleys of Economically Beneficial

Use of their Land. ............... 7

B. The Delay was the Product of Normal

Delays in the Regulatory Process. .... 9

5.6 i 6 nase eee ceveevesssse.... 13

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Agins v. City of Tiburon, 447 U.S. 255 (1980) .... 7

Dolan v. City of Tigard, 512 U.S. 374 (1994) .... 7,12

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987) . 5,9, 10, 11, 12

Landgate, Inc. v. California Coastal Commission,

17 Cal. 4th 1006, 73 Cal. Rptr. 2d 841 (1998),

cert. denied, 119 S. Ct. 179 (1998) ........ 4,5,9, 11

Littoral Development Co. v. San Francisco Bay

Conservation etc. Com., 33 Cal. App. 4th 211, 39

Ce See Be ee COME 0b vee ccaceevendeates 11

Lucas v. South Carolina Coastal Council, 505 U.S.

SE Si ccccnddedesdeeeebedcereeenen hy

Lujan Home Builders, Inc. v. Town of Orangetown,

568 N.Y.S.2d 850 (N.Y. Sup. 1991) .......... 11

Portland Ry. Co. v. Oregon R.R. Comm., 229 U.S.

Pe EEE e456 oped bank eke een 6

Smith v. Town of Wolfeboro, 615 A.2d 1252 (N.H..

Cited Authorities

Page

Steinbergh y. City of Cambridge, 604 N.E.2d 1269

(Mass. 1992), cert. denied, 508 U.S. 909 (1993)

NLS SASS EES TREES ee eee ag eee ye ete en 1]

Tabb Lakes, Ltd. y. United States, 10 F.3d 796 (Fed.

siden SECT dy 10

United States y. Riverside Bayview Homes, Inc., 474

U.S. 121 sini SESTILE OT ee Oa 6,9, 10

Statutes:

California Public Resources Code § 3000 et seg. .. ll

California Public Resources Code § 30610.1 ..... 1,7

California Public Resources Code § 30610.2 ..... ]

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OPINION BELOW

The petition seeks review of a final decision of the

California Court of Appeal, Second Appellate District,

Division Two, which is in a published opinion reported as

Buckley v. California Coastal Commission, 68 Cal. App.

4th 178, 80 Cal. Rptr. 2d 562 ( 1998).

STATEMENT OF THE CASE!

Petitioner Peggy Ann Buckley and John Buckley

(the Buckleys) own a 2.75-acre residential lot in the Point

Dume area of Malibu.” The lot is rectangular in shape,

running lengthwise from east to west. The front portion of

the lot, which borders the street, is on the east and is level.

The rear or west portion descends rather steeply into a

ravine. The Buckleys wanted to build a house on the front

portion. Their original plan called only for grading and

building on the front portion. There would be no

development in the rear. (App. 2-4.)

The front portion of the lot is situated in what has come

to be referred to as a “Calvo exempt” area. The name comes

from the state legislator who sponsored legislation, codified

in California Public Resources Code §§ 30610.1 and

30610.2, providing an exemption from the Coastal

Commission’s permit jurisdiction. The exemption is for the

1. The statement of the case is taken from the reported opinion

below. Citations to that opinion, which is appended to the Petition

for Writ of Certiorari, will be provided by referring to the Appendix

(App.) and the page number.

2. Whether the ownership of the property has changed as a

consequence of the Buckleys’ divorce is not shown by the record.

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limited purpose of constructing a single-family residence

and applies to certain areas designated by the Coastal

Commission that meet certain geographical criteria. When

designating “Calvo exempt” areas, the Coastal Commission

included in the exempt area the front portion of the

Buckleys’ lot, but excluded the rear portion because it was

“environmentally sensitive.” The Coastal Commission

informed the Buckleys that under these designations, they

did not need a coastal development permit to build a single-

family residence on the front portion of their lot. They

would, however, need a coastal permit for any development

on the rear portion and any development other than a single-

family residence on the front portion. (App. 4.)

The Buckleys later decided that in addition to grading

the front portion of their lot in preparation for construction

of a single-family home, they would grade the rear portion

to provide pads for a garden, a riding ring or a tennis court,

and a guest house. They applied for a coastal permit for the

grading in the ravine. At the hearing before the Coastal

Commission on their permit application, the Buckleys for

the first time voiced their belief that the grading in the ravine

was required to alleviate a landslide. The Coastal

Commission denied the permit application on the ground

that the extensive grading proposed by the Buckleys was

inconsistent with the environmentally sensitive habitat

policies of the Coastal Act. The Buckleys did not challenge

the permit denial. (App. 5-6.)

Notwithstanding the Coastal Commission’s denial of

the permit, the Buckleys began grading the rear portion of

their lot pursuant to their extensive grading plan that had

been approved by the County of Los Angeles. The Coastal

Commission issued an order to the Buckleys to stop the

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grading until they obtained a coastal permit. Then a County

geologist ordered the Buckleys to abate the landslide on

the rear portion of their lot by pursuing the County-approved

grading plan. The Buckleys sought an emergency permit

from the Coastal Commission to pursue this grading plan.

The Coastal Commission denied the application because

the County-approved plan provided more grading than was

needed to abate the hazard created by the landslide. When

the Buckleys continued with the grading in the ravine, the

Coastal Commission issued another stop-work order.

(App. 6-8.)

The Buckleys filed a declaratory relief action against

the Coastal Commission contending, contrary to their

position during the Commission’s permit hearings, that the

Coastal Commission lacked jurisdiction over any

development on their property. The Coastal Commission

sued the Buckleys to enjoin the grading and to impose civil

penalties for the impermissible activity. The Buckleys cross-

complained for damages. The cases were consolidated. The

declaratory relief cause of action was severed so that it could

be tried first. The trial court ruled that the Coastal

Commission had no jurisdiction over any portion of the

Buckleys’ lot. Based upon this determination, the trial court

then ruled that the Coastal Commission’s mistaken assertion

of jurisdiction was a permanent taking of the Buckleys’ lot |

and ordered that the case Proceed to trial on the amount of

damages that should be awarded for this taking. The trial

court awarded the Buckleys $1,355,837 in damages and

$831,494.76 in attorney fees. (App. 8.)

The Court of Appeal initially affirmed the trial court’s

determination that the Coastal Commission had no

jurisdiction over the rear portion of the Buckleys’ lot and

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reversed its determination that the mistaken assertion of

jurisdiction was a taking. The Court of Appeal premised its

finding that there was no taking on substantial evidence in

the record that the Buckleys were not deprived of

economically beneficial use because they were free at all

times to build their house on the level front portion of their

lot. The Buckleys petitioned the California Supreme Court

for review of the Court of Appeal’s decision. The California

Supreme Court granted the petition and then remanded the

case to the Court of Appeal for reconsideration in light of

its decision in Landgate, Inc. v. California Coastal

Commission, 17 Cal. 4th 1006, 73 Cal. Rptr. 2d 841 (1998),

cert. denied, 119 S. Ct. 179 (1998). (App. 37.) On

reconsideration, the Court of Appeal, this time citing

Landgate, reaffirmed its determinations that the Coastal

Commission had mistakenly asserted its jurisdiction and

that there was no evidence that the delay occasioned by the

mistaken assertion of jurisdiction deprived the Buckleys of

substantially all economically beneficial use of their lot.

(App. 20-32.) The Buckleys again petitioned the California

Supreme Court for review. Their petition was denied.

(App. 36.)

REASONS FOR DENYING THE WRIT

I.

THE PETITION FAILS TO ADDRESS HOW THE

BUCKLEY DECISION PRESENTS AN ISSUE

SUPPORTING THE GRANT OF CERTIORARI

The Petition for Writ of Certiorari is largely a diatribe

setting forth the petitioner’s opinion of regulatory takings

law in California. The premise of the petition is that the

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grant of a writ of certiorari is warranted simply because

Buckley is an inverse condemnation case decided by a

California court. The petition is directed primarily at the

California Supreme Court’s decision in Landgate, Inc.

v. California Coastal Commission, 17 Cal. 4th 1006, cert.

denied, 119 S. Ct. 179 (1998). The Landgate petition,

however, already has been denied. The California Court of

Appeal, acting at the direction of the California Supreme

Court, cited Landgate in confirming its initial decision that

the facts in Buckley fail to show that there was a temporary

taking. It is the Buckley case, however, for which review is

being sought, and the Buckley case is one in which there is

no substantial evidence to support a taking.

The portion of the petition arguing the reasons why the

writ should be granted in this case consumes twenty-three

pages. Only six of those Pages even address the Buckley

decision. More importantly, nothing in those six pages

explains how Buckley fails to apply correctly this Court’s

takings decisions or how Buckley conflicts with those

decisions. The six Pages ignore the Buckley court’s

determination that there was no evidence supporting a

finding that the Coastal Commission’s actions denied the

Buckleys all economically beneficial or productive use of

their land, the basis for finding a taking in Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).

There is nothing about how the delays in Buckley were not

“normal delays in obtaining building permits, changes in

zoning ordinances, variances, and the like” and, therefore,

not temporary takings under Firs; English Evangelical

Lutheran Church vy. Los Angeles County, 482 U.S. 304, 321

(1987). Finally, there is no attempt to show that the Coastal

Commission did more than assert its regulatory jurisdiction

to require a permit before grading was begun and, therefore,

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extended its actions beyond those found not to be a taking

in United States v. Riverside Bayview Homes, Inc., 474 U.S.

121, 126-27 (1985).

The six pages relating to Buckley simply say that the

Buckleys were faced with a choice of either surrendering

their constitutional rights to build on their land or

surrendering their right to be compensated for the taking of

their land. That is hardly how the California Court of Appeal

described the situation. The Buckleys were free to build

their home on the level front portion of their lot, over which

the Coastal Commission acknowledged it had no

jurisdiction, while they pursued their challenge to the

Coastal Commission’s assertion of jurisdiction over the rear

portion of their lot through the judicial process. (App.

20-25.) This Court does not retry issues of fact determined

by acompetent state court. Portland Ry. Co. v. Oregon R.R.

Comm., 229 U.S. 397, 412 (1913). Therefore, the question

is whether under these facts, the California Court of Appeal

properly applied this Court’s takings decisions to reach its

conclusion that there was no temporary taking of the

Buckleys’ lot.

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Il.

THE CALIFORNIA COURT OF APPEAL’S

DECISION IN BUCKLEY CORRECTLY APPLIED

EXISTING TAKINGS LAW IN CONCLUDING THAT

THERE WAS NO TEMPORARY TAKING

A. The Court of Appeal in Buckley Relied on

Substantial Evidence that the Coastal Commission

was Pursuing Legitimate State Interests and had not

Deprived the Buckleys of Economically Beneficial

Use of their Land.

In Lucas v. South Carolina Coastal Council, 505 U.S.

at 1016, and then again in Dolan y. City of Tigard, 512

U.S. 374, 385 (1994), this Court reaffirmed its statement in

Agins v. City of Tiburon, 447 U.S. 255, 260 (1980), that

land use regulation is not a taking if it substantially advances

legitimate state interests and does not deny an owner

economically viable use of his or her land. If a government

agency shows that in the course of its land use regulation it

pursued legitimate public interests and did not deny all

economically productive use of the land it was regulating,

ii cannot have engaged in a compensable taking. That is

exactly the Buckley case.

Section 30610.1 of the California Public Resources

Code authorized the Coastal Commission to designate

specific areas in the coastal zone where construction of

single-family residences would have no potential “for

Significant adverse impacts on highly scenic resources of

public importance, on environmentally sensitive areas, on

prime agricultural lands currently in production, or on publi:-

access to or along the coast.” In those areas desi gnated by

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the Coastal Commission, no coastal development permit

would be required for a single-family residence. The exempt

area must also be a legal lot meeting the size and use

designations of the applicable general plan.

The Coastal Commission designated the front portion

the Buckleys’ lot as exempt, but not the rear portion in the

ravine because the ravine was an environmentally sensitive

area. The trial and appellate courts said that the Coastal

Commission erred by bisecting the Buckleys’ lot into

exempt and non-exempt parts. The appellate court reasoned

that the Legislature had not authorized the splitting of lots

into exempt and non-exempt parts and by exempting part

of the Buckleys’ lot, the Coastal Commission had forfeited

its jurisdiction over the remainder. Buckley v. California

Coastal Commission, 68 Cal. App. 4th at 188-90.

Nonetheless, the Coastal Commission had been

pursuing a legitimate governmental purpose by asserting

jurisdiction over the rear portion of the lot that was an

environmentally sensitive area. It believed that it could

accomplish this goal by bisecting the lot and was told by

the court that it had misapplied the statute. The delay was

the product of the legitimate use of the judicial process to

resolve the Coastal Commission’s legitimate dispute with

the Buckleys over how this exemption should have been

applied to their lot. Buckley v. California Coastal

Commission, 68 Cal. App. 4th at 200-01.

Based on its exhaustive review of the factual record,

the Court of Appeal concluded that development of the

Buckleys’ lot was not stymied by the Coastal Commission’s

mistaken assertion of jurisdiction over the rear portion. The

Buckleys were free to build their house on the front portion

a

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of their lot. This was the most important part of their

development plans and the only thing that they wanted to

do in the first place. Buckley v. California Coastal

Commission, 68 Cal. App. 4th at 194-97. They were hardly

denied all economically beneficial or productive use of their

land. Under this Court’s temporary takings analyses, there

is no taking where government, acting in pursuit of

legitimate public interests when engaging in land use

regulation, does not deny all economically productive use

of the land. See Lucas vy. South Carolina Coastal Council,

505 U.S. at 1016; United States v. Riverside Bayview

Homes, Inc., 474 U.S. at 127; and First English Evangelical

Lutheran Church vy. Los Angeles County, 482 U.S. at 321.

B. The Delay was the Product of Normal Delays in the

Regulatory Process.

The Court of Appeal in Buckley rested its decision on

the facts showing that the Buckleys retained the ability to

build their house on the front portion of their lot, which

was their primary goal in developing this residentially zoned

lot. The Buckleys’ decision not to build the house, not any

denial by the Coastal Commission of a permit to build, kept

the property from being developed while the issue of the

Coastal Commission’s jurisdiction over the planned grading

in the rear of the lot proceeded through the judicial process.

Part of that process included the California Supreme Court’s

order to the Court of Appeal to reconsider its decision in

light of Landgate. The Court of Appeal’s discussion of

Landgate was, at best, ancillary to its independent, fact-

based finding that there were no grounds for a takings claim.

This ancillary basis, nonetheless, is consistent with the

teaching of First English that normal delays in the pursuit

of legitimate regulatory goals do not constitute takings.

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In First English, this Court assumed that a Los Angeles

County ordinance prohibiting any building on the church’s

land located in a flood plain temporarily denied the church

all use of its property. The Court then held that if this were

so, the Just Compensation Clause requires compensation

for that temporary taking. The Court limited its holding to

the assumed fact situation. It expressly did not include

within the scope of its holding denials of use resulting from

“normal delays in obtaining building permits, changes in

zoning ordinances, variances, and the like which are not

before us.” First English, 482 U.S. at 313 and 321.

First English did not deal with the inevitable delay in

development that occurs while a regulatory agency asserts

jurisdiction and requires a permit. This issue already had

been addressed in Riverside Bayview Homes. There, this

Court determined that neither the imposition of a permit

requirement nor the denial of a permit necessarily causes a

taking. Only after a permit is denied and the denial prevents

all economically viable use of the property is there a taking.

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

at 127.

Since First English, several courts, including the

California Supreme Court in Landgate, have addressed

whether a delay caused by.a regulatory agency’s mistaken

assertion of jurisdiction or application of law is a taking or

a “normal delay.” In light of First English and other takings

cases, including Riverside Bayview Homes, these federal

and state courts have concluded that delays in development

until judicial intervention rectifies a regulatory agency’s

mistake are among the “normal delays” to which this Court

was referring in First English. See, e.g., Tabb Lakes, Ltd.

v. United States, 10 F.3d 796, 800-03 (Fed. Cir. 1993) (no

1]

taking where Army Corps of Engineers mistakenly asserted

permit jurisdiction by issuing cease and desist order and

development “effectively stopped” until court corrected

mistake); Smith v. Town of Wolfeboro, 615 A.2d 1252, 1257

(N.H. 1992) (no taking for delay where erroneous planning

board decision declaring lot unsuitable for residential

development was ultimately set aside by court, noting that

appeals to the courts of mistaken agency decisions are part

of the governmental decision making process); Steinbergh

v. City of Cambridge, 604 N.E.2d 1269, 1275 (Mass. 1992),

cert. denied, 508 U.S. 909 (1993) (delay caused while

seeking and obtaining judicial invalidation of municipal

regulation beyond the authority of city to adopt not a taking);

Lujan Home Builders, Inc. v. Town of Orangetown, 568

N.Y.S.2d 850, 851 (N.Y. Sup. 1991) (no taking for

developmental delay while securing judicial relief from

erroneous planning board decision); and Littoral

Development Co. v. San Francisco Bay Conservation etc.

Com., 33 Cal. App. 4th 211, 221-22, 39 Cal. Rptr. 2d 266

(1995) (no taking where agency’s mistaken assertion of

jurisdiction overturned by court).

The California Supreme Court in Landgate, after citing

all and discussing most of the above cases, concluded that

certain errors, ones that involve the passage or enforcement

of a law or regulation that deprives property of all value,

are compensable takings under the teaching of First English.

“But government land use regulations and decisions . . .

which, despite their ultimately determined statutory defects,

are part of a reasonable regulatory process designed to

advance legitimate government interests, are not takings of

property under the Supreme Court’s doctrine reviewed

above.” Landgate, 17 Cal. 4th at 1020. If government had

to respond in damages for a taking for the delay consumed

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by every successful judicial challenge to a regulatory

agency’s invocation of jurisdiction or application of a statute

or regulation, the agency would be loath to act for fear of

absolute liability for a good faith mistake. Faced with the

choice of having to pay damages for the delay or applying

a law or regulation in favor of the developer but contrary to

what it may reasonably believe to the legitimate pursuit of

regulation, it may choose the former, to the public’s

detriment. First English teaches that unless the agency is

acting arbitrarily by failing to advance legitimate state

interests, or denies conclusively and absolutely all value to

property (see Dolan v. City of Tigard, 512 U.S. at 385), it

is not temporarily taking property by mistakenly asserting

jurisdiction and causing a delay in development until the

mistake is corrected by the courts.

There was no taking in this case. The Coastal

Commission and the Buckleys pursued the judicial remedies

that both were entitled to pursue to obtain a final

determination on the propriety of the Coastal Commission’s

assertion of jurisdiction over the grading on the rear portion

of the lot in order to preserve environmentally sensitive

habitat. The parties had a legitimate jurisdictional dispute

over the pursuit of a legitimate goal under the Coastal Act

by the Coastal Commission. The Coastal Commission’s

good faith legal mistake did not turn into a temporary taking

the delay required to settle this dispute through judicial

intervention.

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CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

Bitt Lockyer

Attorney General of the

State of California

RICHARD M. FRANK

Chief Assistant Attorney General

JAN S. STEVENS

Acting Assistant Attorney General

ALAN V. HaGeEr*

Deputy Attorney General

Terry T. Fusimoto

Deputy Attorney General

300 South Spring Street

Los Angeles, California 90013

(213) 897-2701

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Attorneys for Respondent

* Counsel of Record