# Opposition Brief — Buckley v. California Coastal Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0878%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 816

## Text

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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
(800) 274-3321 + (800) 359-6859

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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?

ii
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0878%3A2. Public record. Not legal advice.