Amicus Curiae Brief — Buckley v. California Coastal Commission

Supreme Court, U.S,

FILED

| JUN 22 1999

No. 98-1894 CLERK

In the

Supreme Court of the United States

a.

vv

PEGGY ANN BUCKLEY,

Petitioner,

Ve

CALIFORNIA COASTAL COMMISSION,

Respondent.

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On Petition for Writ of Certiorari to the California

Court of Appeal for the Second District

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BRIEF AMICI CURIAE OF PACIFIC LEGAL

FOUNDATION AND DEFENDERS OF PROPERTY

RIGHTS IN SUPPORT OF PETITIONER

a

a

JAMES S. BURLING

Counsel of Record

John A. Ramirez

Pacific Legal Foundation

10360 Old Placerviile Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation and

Defenders of Property Rights

pe

QUESTIONS PRESENTED

1. (a) May a State court rule, contrary to this Court’s

holdings in First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304 (1987), and

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992), that landowners who are prevented from improving and

using their land for a family home by invalid and unconstitu-

tional land use regulations—found by the court to be invalidly

imposed by a government agency acting without jurisdiction—

may be denied Fifth Amendment just compensation for the

resulting regulatory taking of their land?

(b) May a state court rule that the supposed “remedy”

of landowners subjected to jurisdictionally invalid and uncon-

Stitutional regulations is to knuckle under to the unlawful

government demands and forego lawful use of their land on pain

of losing their right to seek just compensation in court?

2. May a State court rule, contrary to this Court’s holdings

in First English, Lucas, and Agins v. City of Tiburon, 447 U.S.

255 (1980), that unconstitutional land use regulations that deny

landowners all economically beneficial use of their land for

many years do not justify Fifth Amendment compensation for a

taking if the regulators (who lack jurisdiction to act) can come

up with some arguable—albeit invalid—basis for their action?

3. May a State court nullify this Court’s holding in First

English (that the Fifth amendment compels compensation for the

period of time before a confiscatory regulation is struck down),

by ruling that no compensation can ever be constitutionally due

until after a court invalidates the regulation?

il

TABLE OF CONTENTS

Page

QUES URIS FREI IEE be ccc eveveresctnscenseeys i

TA OE RTT 6 0 66 Bee RS Ne ee es iv

INTEREST OF AMICI CURIAE 2... sc cccccrcvscsauss 1

SIA TMOEINS GP SEU CABS ks swddeweie ceases ences z

REASONS FOR GRANTING THE WRIT ...........-- 2

SUMMARY AND INTRODUCTION ................ 5

I. THE CALIFORNIA SUPREME COURT HAS

FORECLOSED THE JUST COMPENSATION

REMEDY REQUIRED BY THE FIFTH

AMENDMENT TO THE UNITED STATES

CAI ESE CMY 6c 5e00 9554 005 eas 6

A. First English Overruled the Former

California Supreme Court Rule Precluding

Compensation for Regulatory Takings ........ 6

B. The California Coastal Commission Has

Not Embraced the Doctrine of Regulatory

TO 6 50 hae eee 7

C. In Response to First English, the California

Supreme Court Required Regulatory

Takings Claimants to First Seek a Due

Process Remedy of Invalidating the

Offending Regulation via Mandamus or

Pe er rere 9

D. The Recent California Supreme Court

Kavanau Case Totally Eliminates the Just

Compensation Remedy for Most Regulatory

Sane COE ois ss fase She ee 10

ili

TABLE OF CONTENTS—Continued

E. Even in “Per Se” Takings Cases, California

F.

Case Law Precludes the Compensation

eee chal vawaehnseeawnegs 12

There Exists Not One Single Reported

California Decision Awarding Just

Compensation for a Regulatory Taking

eg ee re 17

If the Buckleys’ Property Were Located

Outside of California, They Would Have

Fared Better Because Other Jurisdictions

Are in Conflict with California and

Recognize that Unlawful Permit Denials

oO eer errr ere 18

SG ci vev cet edcotsceveveetenseseseenws 20

hy

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon, 24 Cal. 3d 266, 598 P.2d

TED 66a hak co eee Oe ee eee ee 6

Agins v. City of Tiburon, 447 U.S. 255 (1980) ........ i, 12

Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1986) .... 17

Armstrong v. United States, 364 U.S. 40 (1960) ......... 7

Bennett v. Spear, S20 U.S. 154 (1997)... cc cccccccces 2

Buckley v. California Coastal Commission,

ie we yk eer reer ere 3-4, 15

Cannone v. Noey, 867 P.2d 797 (Alaska 1994) ...... 18-19

Cumberland Farms v. Town of Groton, 719 A.2d :

Se es GOD Sacco oe eee kee oe ee 18

Del Monte Dunes v. City of Monterey, Docket

FO FR te By NPEOe code tadecweneievereas 2

Dolan v. City of Tigard, 512 U.S. 374 (1994) ........... 2

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.

ps Pr re ae er een ee irl re i, 7,11, 14

Healing v. California Coastal Commission,

ee Fe Fe 6 6-0 e 5 ca peaks eens eens |

Hensler v. City of Glendale, 8 Cal. 4th 1, 876 P.2d

Sen enn yee re rey ge ape 9,11

Kavanau v. Santa Monica Rent Control Board,

16 Cal. 4th 761, 941 P.2d 851(1997), cert.

denied, 118 S. Ct. 856 (1998) ............ 10-11, 16-17

Keene Corp. v. United States, 508 U.S. 200 (1993) ...... 2

an cl Gs sc NE ARERR ETS

Vv

TABLE OF AUTHORITIES—Continued

Page

Landgate v. California Coastal Commission,

17 Cal. 4th 1006, 953 P.2d 1188 (1998), cert.

denied, 119 S. Ct. 179 (1998) ........... eee

Lechuza Villas West v. California Coastal

Commission, 60 Cal. App. 4th 218 (1997), cert.

Gomial, 150 S. Cy. COG ETS) 6 ke stevens asevecess 1

Lucas v. South Carolina Coastal Council,

eR rrr eres i, 2, 8, 12

MacDonald, Sommer & Frates v. County of Yolo,

igh ie ef). errr errr rrr ry rrr rT 13

Nollan v. California Coastal Commission,

OS, Bae Co 6 ov ot ew cscevess cine, 1, 19-20

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

CORED. bbc cha cnn o ne eene ere vanes yeh eee Ree 5, 16

Phillips v. Washington Legal Foundation,

SIDS CO. 195 CTD) no nn vce vans cavensseveses: 2

Richardson v. City and County of Honolulu, 124

F.3d 2150 COCR. E997) 2 oc ccc svncvveseees 19-20

Ruckelshaus v. Monsanto Co., 467 U.S. 986

CONGR) gcc dezcvsacssseedl fanacenanssetstness 19

Santa Monica Beach, Ltd. v. Superior Court,

19 Cal. 4th 952, 968 P.2d 993 (1998), cert.

denied (May 26, 1999) «occ cicinccccccieveeseses 17

Seawall Associates v. City of New York, 542

ee ee errr re ry Tr 20

Suitum v. Tahoe Regional Planning Agency,

520 U.S. 725, 117 S. Ct. 1659 (1997) .......... 1-2, 8

United States v. Clarke, 445 U.S. 253 (1980) .......... 11

ee

vi

TABLE OF AUTHORITIES—C ontinued

Page

Wheeler v. City of Pleasant Grove, 833 F.2d 267

SOG EEE 665600 ceck vee asenndaeauneuaGn 19

Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City,

ee Chas CER EOEED oo a cavvbcawesoceessbiaywres 16

Woodbury Place Partners v. Woodbury,

492 N.W.2d 258 (Minn. App. 1992) .............. 19

Yuba Natural Resources, Inc. v. United States,

ik mw fF Be. 5 eee eer er re 19

Rules of Court

Sn GAMUT SUED BF so sc wis chase caus cececessuaues 2

NE CUNED OUD occ ev beewckaneteeeseunneees ]

Miscellaneous

Sharon L. Browne, Administrative Mandamus as a

Prerequisite to Inverse Condemnation:

“Healing” California’s Confused Takings Law,

22 Pepperdine L. Rev. 99 (1994) ....ccscccceves 9-10

Arthur Conan Doyle, Silver Blaze, The Complete

Se CS CUES «vn sas 5 cee esaveuns eueenn 18

1

INTEREST OF AMICI CURIAE'

Pacific Legal Foundation is a nonprofit public interest legal

foundation that specializes in defending property rights and other

individual liberties. Since its inception 26 years ago, PLF has

had extensive litigation experience in cases involving individuals

adversely affected by the Respondent California Coastal

Commission. For example attorneys with Pacific Legal

Foundation represented Marilyn and Patrick Nollan in their

battle with the Coastal Commission over its demand that the

Nollan’s dedicate a portion of their beachfront property in

exchange for a permit necessary to build their family home. See

Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

Its attorneys have also represented numerous other individuals

over the years in their disputes with the California Coastal

Commission, including cases that have made significant

contributions to the law of regulatory takings in California. See,

e.g., Lechuza Villas West v. California Coastal Commission,

60 Cal. App. 4th 218 (1997), cert. denied, 119 S. Ct. 163 (1998)

(representing landowner seeking review of decision allowing

state to redefine definition of property); Healing v. California

Coastal Commission, 22 Cal. App. 4th 1158 (1994)

(representing landowner seeking just compensation);

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

953 P.2d 1188, cert. denied, 119 S. Ct. 179 (1998) (amicus

support of landowner seeking just compensation for temporary

taking).

Attorneys for Pacific Legal Foundation have also

represented other property owners before this Court when

regulatory agencies have taken rights in property without the

payment of just compensation, see Suitum v. Tahoe Regional

' Pursuant to Supreme Court Rule 37.6, Amici Curiae Pacific Legal

Foundation and Defenders of Property Rights affirm that no counsel

for any party in this case authored this brief in whole or in pari; and

furthermore, that no person or entity has made a monetary contribu-

tion specifically for the preparation or submission of this brief.

2

Planning Agency, 520 U.S. 725, 117 S. Ct. 1659 (1997), and

have participated as amicus curiae in almost all of the major

Takings Clause cases before this Court in the past 20 years.

Finally, Pacific Legal Foundation attorneys are also currently

representing Mr. Bailey Jones in a petition for certiorari before

this Court in Jones v. City of Berkeley, Supreme Court Docket

No. 98-1774, another case in which the California courts denied

a property owner relief for a regulatory taking.

Because of the Foundation’s experience both with the

California Coastal Commission and Takings Clause litigation in

the California courts, it has a unique perspective on the state of

the doctrine of regulatory takings in the State of California.

Because of its experience, the Foundation can contribute a

unique perspective to this Court as it determines whether to

grant Peggy Ann Buckley’s petition for writ of certiorari.

Defenders of Property Rights is a nonprofit, public interest

legal foundation dedicated to the preservation of constitutionally

protected property nights. Defenders’ mission is to protect those

rights considered essential by the Framers of the Constitution

and to promote a better understanding of the relationship among

all the nghts protected under the Bill of Rights. Defenders’ goal

of the vigorous protection of property rights recognizes the

special role of federal courts in protecting those rights. Since its

founding in 1991, Defenders has participated in every significant

property nghts case in this Court including Del Monte Dunes v.

City of Monterey, No. 97-1235 (May 24, 1999), Phillips v.

Washington Legal Foundation, 118 S. Ct. 1925 (1998);

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725;

Bennett v. Spear, 520 U.S. 154 (1997); Dolan v. City of Tigard,

512 U.S. 374 (1994); Keene Corp. v. United States, 508 U.S.

200 (1993); and Lucas v. South Carolina Coastat Council, 505

U.S. 1003.

Pursuant to Supreme Court Rule 37, written permission

from all parties for PLF and Defenders of Property Rights to file

this brief has been lodged with the Clerk of this Court.

es ce

3

STATEMENT OF THE CASE

In 1976, the State of California adopted the California

Coastal Act which established the California Coastal Commis-

sion and vested in that agency the power to regulate development

along the California coast. The agency took its power

seriously—so seriously, in fact, that the Legislature feit

compelled, in 1979, to create an exemption for residential home

construction in established residential neighborhoods wherein

the counties, not the Coastal Commission, would have regulatory

jurisdiction.

In 1988, Peggy and John Buckley purchased an inland

2.75-acre lot in Malibu for which they paid $485,000 and

invested $200,000 to $300,000 in utilities and upgrades.

Buckley v. California Coastal Commission, 68 Cal. App. 4th

178, 183-84 (1998). The lot is located in a developed residential

neighborhood and, as such, is statutorily exempt from the

jurisdiction of the California Coastal Commission. /d. at 190.

The Buckleys’ plan was to obtain the permits necessary to

prepare the lot for the construction of a single-family home. /d.

at 183. Although the Buckleys received certification from the

county that their entire lot was exempt from Coastal

Commission jurisdiction, the Coastal Commission claimed that

the lower two thirds of their lot was an environmentally sensitive

area and therefore still subject to its jurisdiction. Jd. at 185.

After receiving grading and building permits from the

County of Los Angeles for a single-family home in 1989, the

Buckleys commenced grading. /d. at 185-86. The Commission

issued a stop work order, threatening a $10,000 fine plus

additional fines of $5,000 for every day that work continued.

Appellant’s Appendix at 68. In November of 1991, a landslide

began to develop and the County Department of Public Works

ordered the Buckleys to repair the landslide. 68 Cal. App. 4th

at 185-86. Shortly after work commenced, the Commission

issued another stop work order. Thus proventing the Buckleys

from repairing the landslide. /d. at 186.

Oa

TUSSI

4

The Buckleys filed an action for declaratory relief and the

Commission sought an injunction and fines. The Buckleys

cross-complained for takings damages. The trial court found

that the Commission had no jurisdiction over any part of the lot.

It also awarded $1.3 million for a permanent taking and

$831,494 in attorneys’ fees and costs. /d. at 187.

On appeal, the court of appeal affirmed that the Coastal

Commission had no jurisdiction over any portion of the lot. /d.

at 189-90. But the court also found that there was no takings

liability. /d. at 201. The court found that the Buckleys should

have applied to the Commission (which lacked jurisdiction) for

a scaled-back grading permit on the lower part of the lot that

would have allowed potential development of the front part. /d.

at 196. As for the fact that the Commission had no jurisdiction

on any portion of the lot, the court found that Landgate v.

California Coastal Commission precluded any liability:

For better or for worse . . . the majority held that

a legally erroneous decision of a governmental agency

during the development process that results in a delay

of the permit is not a taking, as long as there is an

objective, sufficient connection between the land use

regulation in question and a legitimate governmental

purpose.

68 Cal. App. 4th at 200. In other words, even though the

Commission had no jurisdiction to grant or deny any grading or

other development permit on any portion of the Buckleys’ lot,

the Commission could not be held liable for a taking so long as

there is a “legitimate purpose” to the illegitimate regulation.

After the California Supreme Court denied review, Peggy Ann

Buckley petitioned this Court for a writ of certiorari.

3

REASONS FOR GRANTING THE WRIT

SUMMARY AND INTRODUCTION

California is not a good place to own property that is

coveted by a public agency. If a proposed use of the property is

inconsistent with an agency’s desires for the property, the

landowner will not be able to use the land as the owner might

wish. If an agency unlawfully asserts jurisdiction over the

property and prevents it from being used, the landowner’s only

recourse is to employ attorneys to file a writ of mandate to get

the regulation overturned. But no matter how long an agency

unlawfully usurps the use of real property, the agency need not

worry about Takings Clause liability, temporary or otherwise.

In California, so long as the agency’s motives are said to be

pure, the agency is immune from takings liability. The law of

regulatory takings as elucidated by this Court and followed by

many other jurisdictions simply does not apply in California. As

California Supreme Court Justice Janice Brown recently put it:

When the government denies all economically viable

use of property, even temporarily, it may not achieve

its ends “by a shorter cut than the constitutional way

of paying for the change.” In these limited circum-

stances, government must turn square corners—

except in California.

Landgate v. California Coastal Commission, 17 Cal. 4th

at 1043, 953 P.2d at 1212 (quoting Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 416 (1922)) (Brown, J., dissenting).

6

I

THE CALIFORNIA SUPREME COURT

HAS FORECLOSED THE JUST

COMPENSATION REMEDY REQUIRED

BY THE FIFTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

A. First English Overruled the Former

California Supreme Court Rule Precluding

Compensation for Regulatory Takings

In 1979, the California Supreme Court proclaimed in

Agins v. City of Tiburon, 24 Cal. 3d 266, 598 P.2d 25 (1979),

that a just compensation remedy was unavailable in that state for

regulatory takings:

[A] landowner alleging [a regulatory taking] may

attempt through declaratory relief or mandamus to

invalidate the ordinance as excessive regulation in

violation of the Fifth Amendment to the United States

Constitution and article 1, section 19 of the California

Constitution. He may not, however, elect to sue in

inverse condemnation |[i.e., seek just compensation]

and thereby transmute an excessive use of the police

power into a lawful taking for which compensation

... must be paid.

In combination, the need for preserving a degree

of freedom in the land-use planning function, and the

inhibiting financial force which inheres in the inverse

condemnation remedy, persuade us that on balance

mandamus or declaratory relief rather than inverse

condemnation [i.e., just compensation] is the

appropriate relief under the circumstances.

Agins, 24 Cal. 3d at 273, 276-77, 598 P.2d at 28, 30-31

(emphasis added). Owners whose property was confiscated by

7

excessive regulation were limited to a due process remedy of

invalidation of the offending statute or regulation.

This Court directly confronted and overruled Agins in First

English. Squarely rejecting the California Supreme Court rule

that takings claimants could be limited to a due process remedy,

this Court stated:

[G]overnment action that works a taking of property

rights necessarily implicates the constitutional

obligation to pay just compensation.

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles. 482 U.S. at 315 (quoting Armstrong v.

United States, 364 U.S. 40, 49 (1960)) (emphasis added).

Accordingly, the California Supreme Court doctrine espoused in

Agins was overruled as “inconsistent[] with the requirements of

the Fifth Amendment.” First English, 482 U.S. at 311. But as

will be shown, according to at least two California Supreme

Court justices, “[t]he more things change, the more they remain

the same.” Landgate, 17 Cal. 4th at 1035, 953 P.2d at 1206

(Brown, J. dissenting (joined by Baxter, J.)).

B. The California Coastal Commission Has Not

Embraced the Doctrine of Regulatory Takings

California’s government agencies have resisted First

English and the doctrine of regulatory takings. This is especially

true of the California Coastal Commission. Peter Douglas, the

Commission’s long time executive director, rejects this Court’s

takings jurisprudence. He calls it

unfortunate, especially when you consider we live on

limited space and are a society with collective needs.

The land was here long before we were.

L.A. Times, Mar. 2, 1998, at A9. Harking back to the California

Supreme Court’s rationale in Agins of an “inhibiting financial

force” he claims:

8

The recent rulings on “takings” issues have,

directly and indirectly, stripped the public sector of

important tools needed to effectively manage

development of private land.

Peter Douglas, speech to the California Chapter of the American

Planning Institute, Oct. 13, 1997, at 9 (visited Jun. 14, 1999)

http://www.rain-org/calepa/peterdouglas.html. To regain the tool

of uncompensated regulatory takings, the Commission has done

everything in its power, with much success, to convince the

California courts to disregard this Court’s precedents in property

rights. It has attacked the advocacy of such doctrines as

something extremely corrosive [that] has been inject-

ed into our social being and the body politic that has

eroded our appreciation of the collective well-being.

Id. at 5-6. The Commission is contemptuous of this Court’s

recent takings decisions, for example suggesting in a discussion

of Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659,

and Lucas v. South Carolina Coastal Council, 505 U.S. 1003,

that

there is no legal formula or doctrine that compels this

result. Rather it is predicated on the subjective

judgment, the value choices and the philosophical

perspective of the judge or judges rendering the

decision.

9

Douglas at 8.° The California courts have been only too happy

to accommodate the state government’s disdain for the Just

Compensation Clause.

C. In Response to First English, the California

Supreme Court Required Regulatory Takings

Claimants to First Seek a Due Process Remedy

of Invalidating the Offending Regulation via

Mandamus or Declaratory Relief

In response to First English, the California Supreme Court

created a stringent new procedural rule which has the effect of

limiting claims for regulatory takings. Under the California rule

of Hensler v. City of Glendale, 8 Cal. 4th 1, 21-28, 876 P.2d

1043, 1056-60 (1994), as-applied regulatory takings claims must

proceed by way of administrative mandamus and facial

regulatory takings claims must proceed by way of an action for

declaratory relief. /d. Only if a takings claimant seeks to have

the offending regulation invalidated via mandamus or

declaratory relief may he then seek compensation through an

inverse condemnation proceeding. /d., 8 Cal. 4th at 14,

876 P.2d at 1051-52. What makes this procedural requirement

unique is not only its doctrinal unsoundness,’ but also that it

* Douglas’ alternative solution is reflected in his statement that unless

[we] amend our national constitution to give Americans

a constitutional right to a high “quality” of life (as in the

case in India) .. . it is the courts that will be the arbiters

of the debate over property rights.

Id. at 6.

* Outside of California, it has never been the law that only invalid

Statutes or government actions trigger liability under the Just

Compensation Clause. As one commentator has stated:

The Hensler opinion was [unclear] on why injured

property owners should be forced to seek an

invalidation remedy--the only relief provided under the

(continued...)

10

effectively requires plaintiffs to pursue a due process claim as a

prerequisite to seeking just compensation for a regulatory taking.

Thus, in effect, the initial response of the California

Supreme Court to First English was to establish that regulatory

takings plaintiffs must first pursue a due process action before

compensation under the Just Compensation Clause will even be

considered. Compensation was no longer expressly foreclosed,

as under Agins, but was reduced to a follow-on possibility for

plaintiffs who succeeded in their claim for a due process remedy

of invalidation.

D. The Recent California Supreme Court Kavanau

Case Totally Eliminates the Just Compensation

Remedy for Most Regulatory Takings Claims

In Kavanau v. Santa Monica Rent Control Board, \6 Cal.

4th 761, 941 P.2d 851 (1997), cert. denied, 118 S. Ct. 856

(1998), the plaintiff complied to the letter with California’s

rigorous procedural demands. His administrative mandamus

petition was filed within 90 days of the rent board’s confiscatory

actions and, remarkably, Mr. Kavanau obtained a judgment from

the California appeals court finding that the rent board’s

regulations were unconstitutionally confiscatory as applied to

him. /d., 14 Cal. 4th at 768, 941 P.2d at 855.

Mr. Kavanau then filed a timely complaint in inverse

condemnation seeking compensation for the period during which

the rent board had wrongfully deprived him of a fair return. The

‘(...continued)

cited code sections--when legitimacy of the regulation

may be conceded by the owner from the outset. .. .

Until now, it has not been suggested that a writ of

administrative mandamus is required to remedy

permissible governmental actions.

Sharon L. Browne, Administrative Mandamus a5 a Prerequisite to

Inverse Condemnation: “Healing” California's Confused Takings

Law, 22 Pepperdine L. Rev. 99, 125 (1994).

1]

trial and a divided appellate court found no taking can occur if

the owner retains any use of the property.

On appeal the California Supreme Court, faced with the

prospect of actually having to subject an entity of California

government to the discipline of the Just Compensation Clause—

as required by First English—avoided doing so. Rather, the

California high court determined that a due process remedy was

not only a prerequisite to (as expressed in Hensler), but a

substitute for, just compensation. According to the reasoning of

the court, because Mr. Kavanau could return to the rent board

and go through the petitioning process anew (to seek rent

increases), this in and of itself was an adequate remedy. As the

court stated: [A] remedy for [a] due process violation, if

available and adequate, obviates a finding of a taking. Kavanau,

16 Cal. 4th at 782, 941 P.2d at 865 (emphasis added).

By upholding the dismissal of Mr. Kavanau’s inverse

condemnation complaint, the California Supreme Court’s

decision cannot be reconciled with this Court’s teaching in First

English:

[ A] landowner is entitled to bring an action in inverse

condemnation as a result of the “self-executing

character of the constitutional provision [ie., the Fifth

Amendment] with respect to compensation.”

First English, 482 U.S. at 315 (quoting United States v. Clarke,

445 U.S. 253 (1980)).

Because every takings claimant is required, under

California’s procedural scheme, to obtain a due process remedy

aS a prerequisite to pursuing inverse condemnation (Hensler,

8 Cal. 4th at 7, 876 P.2d at 1047), and because under Kavanau

every due process violation with a so-called “available and

adequate” due process remedy obviates the finding of a taking

and therefore the payment of just compensation, the California

Supreme Court has foreclosed compensation in nearly every

4

case.

In other words, notwithstanding this Court’s decision in

First English overruling the California Supreme Court’s Agins

opinion, the California Supreme Court has in fact revived the

Agins rule: just compensation is not available in the California

courts as a matter of law, so long as an invalidation remedy is

available.

E. Even in “Per Se” Takings Cases, California Case

Law Precludes the Compensation Remedy

It is a long-settled principle of law that a regulation or

ordinance effects a taking if the ordinance either (1) does not

substantially advance legitimate state interests, or (2) denies an

owner economically viable use of his land. Agins v. City of

Tiburon, 447 U.S. at 260. The first prong focuses on the nature

of the regulation at issue to determine whether the application of

the regulation to the proposed use of the property substantially

advances a legitimate governmental interest. The second prong

focuses on the regulation’s effect on the property at issue to

determine to what extent the regulation eliminates economically

viable use of the property.

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

1003, this Court made clear that if a regulation operates to deny

a landowner all economically beneficial or productive use of his

land, a per se taking has occurred and therefore just compensa-

tion must be paid under the rule of First English.

Nevertheless, when the California Supreme Court was

recently confronted with exactly such a “per se” regulatory

* In Kavanau the “remedy” was the right to apply to the rent control

board for higher rents from tenants in the future. This is a poor

substitute for just compensation. The only exception (in theory)

would be where the government persists in the application of its

regulations after a court pronounced them to be invalid.

Se

13

taking, that court once again confirmed that just compensation

was not an available remedy in that state. In Landgate v.

California Coastal Commission, 17 Cal. 4th 1006, 853 P.2d

1188, the Coastal Commission reached a final decision’ with

respect to the property at issue which had the effect of denying

the property owner all beneficial use of his residential lot.

Landgate, 17 Cal. 4th at 1013-15, 953 P.2d at 1191-93.

Approximately two years later, this decision was overturned by

a trial court thereby allowing the plaintiff to build on the lot.

When the owner sought compensation pursuant to First English

and Lucas, for the two-year period during which the Coastal

Commission deprived him of all beneficial use of his property,

the trial court awarded him $156,000 for the temporary taking.

Landgate, 17 Cal. 4th at 1015, 953 P.2d at 1193 at 1015.

However, the California Supreme Court set aside this judgment

ruling that Landgate’s sole remedy was invalidation of the

Coastal Commission’s initial ruling. Id., 17 Cal. 4th at 1021,

953 P.2d at 1197. In other words, under Landgate, if a

regulatory agency illegally or erroneously precludes a property

owner from making anv beneficial use of his or her property for

a period of time—be it one, two, or ten years—the landowner

may not recover compensation for this temporary taking as a

matter of law in California.

The fact that the Landgate decision effectively resuscitates

the former California rule of Agins—which provided for an

invalidation remedy only and not a compensation remedy for

‘One of the ripeness requirements of a takings claim is that a

property owner receive a “final decision” with respect to what exact

use will be permitted of his land. MacDonald, Sommer & Frates v.

County of Yolo, 477 U.S. 340, 351 (1986). Landgate received such

a final decision: “At its February 1991 meeting the Commission

denied Landgate’s application.” Landgate, 17 Cal. 4th at 1013,

953 P.2d at 1191; see also 17 Cal. 4th at 1033, 953 P.2d at 1205

(Chin, J., dissenting) (“[T]he Commission flatly denied the permit,

and its decision was final in every sense. The Commission was not

planning to take any further action.”’).

14

takings claimants—is made all too clear by comparing the

practical effect of the Landgate decision with the First English

opinion. In sum, under First English, once a regulatory action

is administratively final, and where that regulation’s impact is to

prevent all economically productive use of the land at issue,

compensation is constitutionally compelled for the period during

the litigation that determines the validity of the regulation at

issue. First English, 482 U.S. at 306-07. In the words of this

_ Court:

In this case [ie., the California court decision

overruled by} the California Court of Appeal held that

a landowner who claims that his property has been

“taken” by a land-use regulation may not recover

damages for the time before it is finally determined

that the regulation constitutes a “taking” of his

property. We disagree, and conclude that in these

circumstances the Fifth and Fourteenth Amendments

to the United States Constitution would require

compensation for that period.

While the California Supreme Court may not have

actually disavowed this general rule . . . , we believe

that it has truncated the rule by disallowing damages

[i.e., compensation] that occurred prior to the

ultimate invalidation of the challenged regulation.

First English, 482 U.S. at 306-07, 317 (emphasis added).

Although Landgate certainly does not state directly that the

compensation remedy is precluded, it disavows the rule of First

English and precludes compensation all the same. By holding

that an aggrieved property owner must first sue to invalidate

even a valid regulation, and that such litigation over the

regulation is a “normal delay” in California’s planning process

which cannot— regardless of the illegality of the regulation or its

effect on the property at issue—result in a taking requiring the

een eee<_

15

payment of just compensation, California law has in fact

retained the Agins rule.

The Buckley opinion offers further unambiguous authority

that California law precludes a compensation remedy. As

described, the facts of Buckley are closely akin to those in

Landgate. For over a two-year period from August, 1989, to

December, 1991, the Coastal Commission precluded the owners

from making any beneficial use of the lot at issue. Buckley,

68 Cal. App. 4th at 183-87. The lower courts found that the

Coastal Commission had no jurisdiction over the lot. The only

way the Buckleys could have developed their property would

have been to submit to the unlawful jurisdiction of the California

Coastal Commission. The assertion of nonexistent jurisdiction

failed to advance any legitimate governmental interest—and, as

such, was a per se taking.

Yet, the court of appeal reversed the damage award for the

taking. While conceding that “[t]}emporary takings which deny

a landowner all use of property are not different in kind from

permanent takings, for which compensation is clearly required”

[citing First English}, the court nevertheless was compelled “for

better or for worse” to apply Landgate. Buckley, 68 Cal. App.

4th at 193-94, 200. In the words of the court:

Finally, the recent decision of our Supreme Court

in Landgate precludes any monetary recovery by the

Buckleys. Boiled down to its essence, Landgate held

that, under the facts presented, an incorrect decision

of the Commission in asserting jurisdiction over

property did not constitute a temporary taking [and

therefore precludes compensation].

Id. at 199 (emphasis added, citations omitted).

In other words, pursuant to Landgate and Buckley, under

California law, an aggrieved property owner who has suffered a

temporary taking is precluded from recovering compensation as

a matter of law: the only remedy is invalidation of the regu-

16

lation or government decision at issue. Together, both the

Landgate and Buckley decisions illustrate the evaporation of the

compensation remedy in the California courts by virtue of an

interpretive slight of hand.°

The Landgate, Buckley, and Kavanau decisions together

demonstrate the settled policy of the California courts to fore-

close a remedy of just compensation in virtually every instance.

As Justices Brown and Baxter have noted:

When the government denies all economically

viable use of property, even temporarily, it may not

achieve its ends “by a shorter cut than the constitu-

tional way of paying for the change.” In these limited

circumstances, government must turn square

corners—except in California.

Landgate, 17 Cal. 4th at 1043, 953 P.2d at 1212 (Brown, J.,

dissenting) (quoting Pennsylvania Coal v. Mahon, 260 U.S.

393) (emphasis added)).

Because under California law every takings claimant is

required to obtain a due process remedy as a prerequisite to

pursuing inverse condemnation, and because under Kavanau

every due process violation with a due process remedy obviates

the finding of a taking and therefore the payment of just

compensation (even in the context of “per se” takings, as

Landgate demonstrates), the California Supreme Court

continues to foreclose the compensation remedy: As a practical

matter, the discredited and overturned rule of Agins remains the

law in California.

* The lower court’s suggestion that the Buckleys might have applied

for another permit does not invoke the question of ripeness under

Williamson County Regional Planning Commission v. Hamilton

Bank of Johnson City, 473 U.S. 172, 186-94 (1985), because that

case did not involve an invalid assertion of permitting authority.

a

17

The recent case Santa Monica Beach, Ltd. v. Superior

Court, 19 Cal. 4th 952 (1998), 968 P.2d 993, cert. denied

(May 26, 1999), is further illustrative of the California Supreme

Court’s continued foreclosure of a compensation remedy in

resolving takings claims. In that case, the court precluded the

plaintiff from attempting to prove at trial that a city’s rent control

law did not substantially further the stated purpose of the law

(which was to expand the range of affordable rental housing).

In so holding, the court applied a due process standard. Santa

Monica Beach, 19 Cal. 4th at 964-68, 972, 968 P.2d at 1000-03;

see also Dissenting Opinion by Justice Chin, 19 Cal. 4th

at 1018, 968 P.2d at 1035 (“The majority . . . inappropriately

conflates takings jurisprudence with due process jurispru-

dence”); Dissenting Opinion by Justice Baxter, 19 Cal. 4th

at 985, 968 P.2d at 993 (“[T]he majority address the wrong

question and give the wrong answer. The takings clause has

different and more stringent criteria than those applied under the

majority’s attempt to morph the deferential due process rational

basis test into a takings clause test.”). In short, Santa Monica

Beach is yet another manifestation of the California Supreme

Court improperly forcing a takings claim into a due process

analysis capable of producing (at best) only a due process

remedy. Again, because the California Supreme Court has

opined that a remedy for a due process violation “obviates a

finding for a taking” (Kavanau, 16 Cal. 4th at 782, 941 P.2d

at 866), takings claimants are precluded as a matter of law from

obtaining a just compensation remedy. (But, in the Ninth

Circuit, a takings claim precludes a due process claim.

Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1986)).

F. There Exists Not One Single Reported California

Decision Awarding Just Compensation for a

Regulatory Taking Since First English

As further evidence that the California courts have a settled

policy of precluding a compensation remedy for takings

claimants, a search of reported California appellate decisions

18

since 1987 demonstrates that not one single reported California

decision awarding just compensation for a regulatory taking

exists. This lack of reported cases, “like Sherlock Holmes’s

‘dog in the night-time’ which tellingly failed to bark,” Arth.;

Conan Doyle, Silver Blaze, The Complete Sherlock Holmes 325

(1930), is evidence itself of the California Supreme Court’s

settled policy of precluding compensation for regulatory takings

claimants.

This fact is indicative of the problem to which this Court

should direct its attention. Namely, because California courts

do not provide just compensation to aggrieved property owners

who have had their property confiscated through regulatory

actions, the courts of that state do not provide adequate

protection of federal constitutional rights guaranteed by the Just

Compensation Clause.

G. Ifthe Buckleys’ Property Were Located

Outside of California, They Would Have Fared

Better Because Other Jurisdictions Are in

Conflict with California and Recognize that

Unlawful Permit Denials Can Lead to Takings

The Buckleys would be better off if they had owned their

property in another state. For example, in Cumberland Farms v.

Town of Groton, 719 A.2d 465 (Conn. 1998), the Town of

Groton denied a permit to an owner of a gasoline station who

desired to make improvements and build a minimart. The owner

filed two lawsuits, seeking Takings Clause damages in one suit

and challenging the denial of the permit in a second suit. In

direct contrast to the California Landgate and Buckley decisions,

the Connecticut Supreme Court held that the taking claim was

ripe, noting that even if the owner prevailed on the second

lawsuit and had the permit denial overturned, he still would have

a ripe claim for a temporary taking. /d.. at 472-73.

In Cannone v. Noey, 867 P.2d 797 (Alaska 1994), the

Alaska Supreme Court found that while a “compensable

temporary taking . . . would result if an ordinance were held

19

invalid,” id. at 801 n.8, there was no “per se” temporary taking

when an arbitrary permit denial did not destroy all economically

viable use. /d. at 801. The case was remanded for “balancing”

under Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). In

California, of course, the case would not have been remanded

under these circumstances because the owner must first seek

invalidation. Upon obtaining invalidation of the ordinance, no

takings compensation would be possible—either under a total

temporary denial of economically viable use (Landgate), or a

lesser economic impact leading to a “balancing” inquiry

(Cannone).

In Yuba Natural Resources, Inc. v. United States, 821 F.2d,

638, 641-42 (Fed. Cir. 1987), the Federal Circuit held that there

was a temporary taking when the United States unlawfully

denied a mining permit for six years during which time it

claimed to own the minerals. The Eleventh Circuit has similarly

been receptive to the concept of temporary takings. See, e.g.,

Wheeler v. City of Pleasant Grove, 833 F.2d 267, 270-71

(11th Cir. 1987).

There is only one state that has been close to adopting

California’s jaundiced view of temporary takings. In Woodbury

Place Partners v. Woodbury, 492 N.W.2d 258, 262 (Minn. App.

1992), an appellate court found in a curious decision that, based

on Justice Stevens’ dissent in First English, a regulation that

denied all use of property for two years was not a taking because

such a finding would otherwise impermissibly segment property.

The conflict between Connecticut, Alaska, the Federal

Circuit, and the Eleventh Circuit with California (and an

appellate court in Minnesota) is evident.’

’ There is also a conflict between the California Supreme Court and

the Ninth Circuit, as the latter has not substituted due process

standards for a takings analysis. In Richardson v. City and County of

Honolulu, 124 F. 3d 1150 (9th Cir. 1997), the court applied Nollan v.

(continued...)

20

CONCLUSION

If for no other reason than to bring California back in line

with the rest of the nation, Peggy Ann Buckley’s petition for writ

of certiorari should be granted.

DATED: June, 1999.

Respectfully submitted,

JAMES S. BURLING

Counsel of Record

John A. Ramirez

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

‘ Pacific Legal Foundation and

Defenders of Property Rights

7(...continued)

California Coastal Commission, 483 U.S. 825, and held that rent

contro] regulations must substantially further a_ legitimate

governmental interest. Richardson, 124 F.3d at 1165. Inso holding,

the court recognized—contrary to the California courts’ jurisprudence-

-that takings claims must be resolved under the Just Compensation

Clause and not under the Due Process Clause. /d. Other courts are

in accord with the Ninth Circuit’s reasoning in Richardson. See

Seawall Associates v. City of New York, 542 N.E.2d 1059 (NY 1989)

(applying the “substantial advancement” takings analysis enunciated

in Nollan to overturn restrictions against converting single-room

occupancy hotel rooms).