Amicus Curiae Brief — Mock v. Pennsylvania Department of Environmental Resources

MOTION FILED

APR 22 1996 >

—

4

No. 95-1329

-

In the

Supreme Court of the United States

October Term, 1995

+

CONRAD MOCK and BARBARA MOCK,

Petitioners,

Vv.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent.

ove +

Petition for Writ of Certiorari to the

Supreme Court of Pennsylvania

— oe

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF PACIFIC LEGAL FOUNDATION AND

AMICUS CURIAE BRIEF OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS,

CONRAD MOCK AND BARBARA MOCK

+

* JAMES S. BURLING

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorney for Amicus Curiae

Pacific Legal Foundation

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED ............... iii

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS,

CONRAD MOCK AND BARBARA MOCK ......... a

IDENTITY AND INTEREST OF AMICUS CURIAE ..... 2

AMICUS CURIAE BRIEF OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI ............ 3

INTEREST OF AMICUS CURIAE ...........2.20.. -

EE ce ks cone be bee 6 eo ele 68 4

PRSRRENNE SUE SUMP GMMEED one sie tc cee escesece 5

ee eee eee eee 6

I ee a ee 7

I. THE PENNSYLVANIA COURT ERRS

BY MISCONSTRUING THE REQUIREMENT

THAT A CLAIM BE RIPE BEFORE

pp we ee 7

A. On the Record of This Case, It Is

Clear That the State Would Not Grant

a Permit Enabling the Mocks to Make

Reasonable Economic Use of Their Property .... 8

Page

B. The Pennsylvania Court’s Decision Is

in Conflict with Other Circuits |

That Have Adopted a Futility Limitation \

to the Requirements of Exhaustion and Ripeness .. 9

C. The Decision of the Pennsylvania r

Court Does Not Follow from This

Court’s Precedents Regarding Ripeness ...... 14

D. The Pennsylvania Court’s Insistence

That the Mocks Apply for Additional

Permits Conflicts with This Court’s

Pronouncement That Government Has the

Burden of Proof in Certain Takings Cases... .. 15

Il. THERE IS NO “RIPARIAN LAND”

EXCEPTION TO THE TAKINGS DOCTRINE ..... 16

CORAM cc cece ssctswessteseeneessuss 19

ili

TABLE OF AUTHORITIES CITED

Page

CASES

Azul Pacifico, Inc. v. City of Los Angeles,

948 F.2d 575 (9th Cir. 1991), on reconsideration,

973 F.2d 704 (9th Cir. 1992), cert. denied,

i ee ee es co cc ee 0 6 13

Chicago, Burlington & Quincy Railroad Co. v.

City of Chicago, 166 U.S. 226 (1897) ............. 19

Dolan v. City of Tigard, 512 U.S. __,

EE ee eee ee eee 15

Eide v. Sarasota County, 908 F.2d 716 (1990)......... 13

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

ES 2

Florida Rock v. United States, 21 Cl. Ct. 161 (1990),

rev'd on other grounds, 18 F.3d 1560 (Fed. Cir. 1994),

cert. denied, U.S. , 115 S. Ct. 898 (1995) ... 3,9-10

Florida Rock v. United States, 791 F.2d 893 (Fed. Cir.),

cert. denied, 479 U.S. 1053 (1986) ............... 10

Formanek v. United States, 26 Cl. Ct. 332 (1992) ....... 6

Greenbriar v. City of Alabaster, 881 F.2d 1570

(11th Cir.), reh’g denied,

893 F.2d 346 (11th Cir. 1989).................. 13

Herrington v. County of Sonoma, 834 F.2d 1488

(9th Cir.), modified at 857 F.2d 567 (1988) ....... 11-12

iv

Page

Hodel v. Irving, 481 U.S. 704 (1987) ............... 2

Hoehne v. City of San Benito, 870 F.2d. 529

SE Sy ee ee er eT ee. ee ee 12

Hughes v. State of Washington, 389 U.S. 290 (1967) .... 19

Kaiser Aetna v. United States,

C00 Te A Wikies bk oe SRE RD eee kae 17-18

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ................. 2

Kinzli v. City of Santa Cruz, 818 F.2d 1449

(9th Cir.), amended at 830 F.2d 968 (1987),

cert. denied, 484 U.S. 1043 (1988) ............... 12

Loveladies Harbor v. United States,

fo Be BR Fo nn ore 10

Loveladies Harbor v. United States,

21 Cl. Ct. 153, aff'd,

28 F.3d 1171 (Fed. Cir. 1994)............ 2,6,10-11,18

Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 112 S. Ct. 2886 (1992) ...... 2,9,16-17,19

Lucas v. South Carolina Coastal Council,

S50 Be es SE Wb wre ee ee Solves 16

MacDonald, Sommer & Frates v. Yolo County,

i SR i a eee a 14

McDougal v. County of Imperial, 942 F.2d 668

Cs Gay Be 6 a wer oe eee Oe ESOS 03 ERS 18

Page

Nansay Hawaii, Inc. v. Public Access Shoreline

Hawaii, 903 P.2d 1246 (Haw. 1995), petition

for certiorari pending, 64 U.S.L.W.30d96......... 19

Nollan v. California Coastal Commission,

tk RA ee ee ee 2,17

Reahard v. Lee County, 30 F.3d 1412

te ee Pere ee eer eee ee 13

Sierra Lake Reserve v. City of Rocklin,

938 F.2d 951 (9th Cir. 1991), vacated on other

mes, ED. EE ie Ge SED ows ecaee 12

Stevens v. City of Cannon Beach,

854 P.2d 449 (1993), cert. denied,

eS ee ee ee ee 18

Whitney Benefits, Inc. v. United States,

926 F.2d 1169 (Fed. Cir.), cert. denied,

ee fe eer ree eee 11

Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City,

ee ee ee rere ae eee 14

Zilber v. Town of Moraga, 692 F. Supp. 1195

Gea ee Se 6 he Sec Sa Fee Hie RE eS 12

eC ee 866 io oak ke bw eee hes 1

vi

UNITED STATES CONSTITUTION

Fan REE ie Ce Cd eee ek eee

Putin AGRON fess ss Re aS eee oS

MISCELLANEOUS

Michael Berger, The Ripeness Mess in Land Use

Cases or How the Supreme Court Converted

Federal Judges into Fruit Peddlers, 199i

Institute on Planning, Zoning, and Eminent Domain,

Ch. 7 (Sw. Legal Found. 1991) ...............

John E. Fee, Comment, Unearthing the

Denominator in Regulatory Takings Claims,

61 UNIv. of CHICAGO L. REV. 1534 (1994) .......

Timothy Kassouni, The Ripeness Doctrine and

the Judicial Relegation of Constitutionally

Protected Property Rights,

29 CALIFORNIA WESTERN L. REV. 1 (1992) .......

Page

No. 95-1329

In the

Supreme Court of the United States

October Term, 1995

«

CONRAD MOCK and BARBARA MOCK,

Petitioners,

Vv.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent.

+

Petition for Writ of Certiorari to the

Supreme Court of Pennsylvania

w

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS,

CONRAD MOCK AND BARBARA MOCK

+

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves this Court for leave to

file the attached amicus curiae brief in support of petitioners,

Conrad Mock and Barbara Mock. Consent to the filing of

this brief has been granted by counsel for petitioner and has

been lodged with the Clerk of this Court. Respondent,

Commonwealth of Pennsylvania Department of

Environmental Resources has withheld consent, necessitating

the filing of this motion.

IDENTITY AND INTEREST OF AMICUS CURIAE

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in matters

affecting the public interest. PLF has over 20,000 contri-

butors and supporters located throughout the Nation and

maintains its principal office in Sacramento, California.

Policy is set by a Board of Trustees composed of concerned

citizens, many of whom are attorneys. PLF’s Board |

evaluates the merits of any contemplated legal action and |

authorizes such action only where the Foundation’s position

has broad support within the general community. PLF’s

Board has authorized the filing of an amicus curiae brief in

this matter.

PLF has participated in numerous cases involving issues

arising under the Takings Clause of the Fifth and Fourteenth

Amendments to the United States Constitution. PLF

attorneys were counsel of record in Nollan v. California

Coastal Commission, 483 U.S. 825 (1987), and PLF

participated as amicus curiae in Keystone Bituminous Coal

Association v. DeBenedictis, 480 U.S. 470 (1987); Hodel v.

Irving, 481 U.S. 704 (1987); 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, 112 S. Ct. 2886 (1992).

PLF has also participated in numerous lower court

cases involving the denial of permission to utilize property

designated as a wetland. For example, PLF has participated

as amicus curiae in Loveladies Harbor v. United States,

21 Cl. Ct. 153, aff'd, 28 F.3d 1171 (Fed. Cir. 1994)

(upholding $2.6 million damage award for wetlands takings);

——e__e_QQSeaeaeEw

3

and Florida Rock v. United States, 21 Cl. Ct. 161 (1990),

rev'd on other grounds, 18 F.3d 1560 (Fed. Cir. 1994), cert.

denied, __ U.S. __, 115 S. Ct. 898 (1995).

Amicus seeks here to augment the argument in the

petition for writ of certiorari. PLF’s public policy

perspective and litigation experience in support of private

property designated as wetlands will provide an additional

viewpoint with respect to the constitutional issues presented.

Specifically, PLF will demonstrate that the court’s

interpretation of a rigid application of principles of

exhaustion and ripeness is not consistent with that of other

jurisdictions. PLF will also show that the court below errs

in attempting to find a riparian exception to the established

principles of property rights and takings.

DATED: April 19, 1996.

Respectfully submitted,

* JAMES S. BURLING

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

By

JAMES S. BURLING

Attorneys for Amicus Curiae

Pacific Legal Foundation

4

No. 95-1329

In the *

Supreme Court of the United States

October Term, 1995

+

CONRAD MOCK AND BARBARA MOCK,

Petitioners,

Vv.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent.

-~o

Petition for Writ of Certiorari to the

Supreme Court of Pennsylvania

-

AMICUS CURIAE BRIEF OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

+

INTEREST OF AMICUS CURIAE

The interests of amicus curiae are set forth in the

preceding motion and are adopted herein.

°

OPINION BELOW

The order of the Supreme Court of Pennsylvania,

affirming the order of the Commonwealth Court of

Pennsylvania, is reported at 667 A.2d 212 (Penn. 1995), and

is reproduced as Appendix A attached to the Mocks’ Petition

5

for Writ of Certiorari. The Commonwealth Court decision

is reproduced in Petitioners’ Appendix C and the Environ-

mental Hearing Board (EHB) Adjudication at Appendix E.

STATEMENT OF THE CASE

Conrad and Barbara Mock made the mistake in 1963 of

investing in a 5.2 acre parcel of undeveloped land. Little did

they know that the presence of wetlands on the property

would prevent them from developing it in a manner similar

to several highly developed surrounding properties. See

Petitioners’ Statement of the Case at 3, EHB Adjudication,

Appendix E at 34a. They also did not guess that the nature

of their property as riparian land would be used by the

Pennsylvania EHB to help justify its denial of compensation

for a regulatory taking. Yet that circumstance, along with

the fact that they did not spell out their investment plans in

1963, is what led the EHB to decide that the Mocks were not

entitled to relief when their permit was denied:

The board was persuaded that the Mock’s

investment-backed expectations were not

destroyed, because they never introduced

evidence of what their expectations were when

they purchased the property in 1963 or

afterwards, and because riparian land has been

"the subject of regulation for centuries."

Opinion of the Commonwealth Court of Pennsylvania filed

March 25, 1993 (Opinion), reproduced in Petitioners’

Appendix C at 13a. The Mocks appealed the Environmental

Review Board’s adverse decision to the Commonwealth

Court of Pennsylvania, which upheld the board’s decision on

several significant grounds. There was one dissent. See

Petitioners’ Appendix D. The majority found first that

although the property is valueless in its present undeveloped

state, it might obtain some value if it were developed.

Opinion at 17a to 18a. Petitioners object to this conjecture

6

because the uses suggested by the court, which included a

hospital or retail shop, were unrealistic in view of the

board’s intent to deny all projects requiring significant filling

of the wetland. See Petition at 5-7 (showing that sc long as

a suggested use could be located elsewhere in the community

(on drier land) it would be denied on the Mocks’ property).

Second, the court found that the regulation did not

constitute a “physical invasion" of Mocks’ property. Opinion

at 2la. Third, the court found that the Mocks had not

proven that their "reasonable investment backed expectations"

had been interfered with because they had not shown what

their plans were in 1963, because the land was riparian, and

because it was within a floodplain. Opinion at 23a. Finally,

the court rejected the reasoning of the Court of Federal

Claims in two wetlands takings cases which had found that

permit denials constituted a taking. Opinion at 24a

(discussing Formanek v. United States, 26 Cl. Ct. 332

(1992), and Loveladies Harbor v. United States, 21 Cl. Ct.

153, aff'd, 28 F.3d 1171 (Fed. Cir. 1994)). |

The Pennsylvania Supreme Court summarily affirmed

the Commonwealth court opinion without comment. See

Petitioners’ Appendix A.

SUMMARY OF ARGUMENT

The order of the Pennsylvania Supreme Court conflicts

with established takings doctrine in several federal circuits.

This brief will focus on two of those conflicts. The first key

area of departure is the court’s finding that the Mocks had

not properly ripened their claim by not applying for permits

to put the property to certain alternative uses. These

alternatives are illusory and would be futile to pursue.

Several federal circuits have adopted more meaningful tests

for determining whether or not a claimant has adequately

exhausted available administrative remedies in order to ripen

a claim.

7

The second area of concern is the notion that because

the subject land is “riparian” and in a floodplain, the owners,

who bought the property in 1963, should have expected that

any permit applications might be denied, and that they there-

fore had fewer reasonable investment-backed expectations to

use the property, and thus a less viable takings claim. This

reasoning serves to redefine the underlying property rights of

the Mocks in a manner proscribed by this Court.

ARGUMENT

I

THE PENNSYLVANIA COURT

ERRS BY MISCONSTRUING THE

REQUIREMENT THAT A CLAIM BE

RIPE BEFORE THERE CAN BE A TAKING

The Pennsylvania Court determined that the Mocks’

claim for inverse condemnation had not ripened because there

was a theoretical possibility that some sort of permit would

have been granted which could have provided the Mocks

with some economic return on their property. Finding that

there was “no evidence in the record that the land cannot be

put to economically viable use," Opinion at 22a, the court

put the burden on the Mocks to prove a negative. Yet this

requirement is contrary not only to the facts in this case, but

is also in conflict with many courts which have considered

how many times a property owner must go to a dry well

before concluding that the well is dry.

8

A. On the Record of This Case, It Is

Clear That the State Would Not Grant

a Permit Enabling the Mocks to Make

Reasonable Economic Use of Their Property

There can be little question that the well was dry in this

instance. The Mocks explored alternatives suggested by the

state, but found that these would either not make economic

sense or would still require the filling of wetlands. EHB

Adjudication, Petitioners’ Appendix E at 43a-44a, Nos. 48,

49, 50, 51, 48a.

It is also clear from the record that any filling of the

wetlands, for uses that were not “wetland-dependent" would

have been denied. As petitioners note, the policy of the

Department of Environmental Resources (DER) is to not

grant a permit for filling a wetland when there are alternative

sites in the community for the desired use--regardless of who

owns the alternative site. See Petition for Certiorari at 7

(quoting testimony of Richard Shannon, DER, indicating that

as long as any available alternative upland sites are available

for a project, a wetland development permit will not be

granted). See also EHB Adjudication, Appendix E at 47a-

48a, concluding that the Mocks failed to adequately consider

alternatives because they did not consider putting an auto

repair shop elsewhere in the community. Reliance on the

Mocks’ failure to consider moving the repair shop, of course,

begs the question of whether economically viable use of the

site has been destroyed. Furthermore, there is nothing in the

record suggesting that any sort of wetland-dependent use

would have been feasible (or approved).

With respect to the Commonwealth Court’s reliance on

the EHB finding that because the Mocks "did not seek

approval for a smaller facility, we cannot conclude that they

will be denied any use of the facility," Opinion, Appendix C

at 13a (emphasis added), it is misplaced. First, as noted, the

record is clear that no economically feasible use will be

9

granted. Second, the emphasis on “any use” ignores the

potential of, and has denied the Mocks’ ability to prove, that

neither economically beneficial nor productive use remains

feasible or that there has been a complete taking of a portion

of the property, see Lucas v. California Coastal Council

505 U.S. 1003, 112 S. Ct. 2886, 2894 n.7, or a partial

taking of the whole property, id. at 2895 n.8; see also

John E. Fee, Comment, Unearthing the Denominator in

Regulatory Takings Claims, 61 UNIV. of CHICAGO L. REV.

1534 (1994).

Thus, despite claims from the state and the

Pennsylvania court that the Mocks should have explored

additional alternative uses and applications, it is clear that the

Mocks did explore such alternatives and that they would have

been denied in any event.

B. The Pennsylvania Court’s Decision Is

in Conflict with Other Circuits

That Have Adopted a Futility Limitation

to the Requirements of Exhaustion and Ripeness

The notion that a property owner must apply for

permits when it is clear that no permits to put the property

to any feasible use will be forthcoming conflicts with the

holdings of the Court of Federal Claims, and the Ninth and

Eleventh Circuits where landowners are not required to apply

for permits that clearly would not be forthcoming. In other

words, a property owner who is unlucky enough to have

property taken by a regulatory agency in Pennsylvania will

not be able to obtain relief nearly as readily, if at all, as a

property owner in other parts of the country or in some

federal courts.

There is a substantial conflict between the Pennsylvania

courts and the Court of Federal Claims which has ruled for

landowners in similar circumstances. For example, in

Florida Rock v. United States, 21 Cl. Ct. 161 (1990), rev’d

on other grounds, 18 F.3d 1560 (Fed. Cir. 1994), cert.

10

nid, US ..,. We &. & oe

(Florida Rock 11), the trial court was confronted with a

takings claim by a property owner who was denied a permit

to use wetlands for limestone mining. In response to

government arguments that the owner should have submitted

alternative permits, the trial court found "‘[i]t would serve no

purpose to require claimant to exhaust administrative

procedures before seeking judicial review when it is clear

that resort to administrative action would be futile.’” Jd. at

170 (quoting Conant v. United States, 12 Cl. Ct. 689, 692

(1987)). Or, as noted by the Federal Circuit in an earlier

proceeding responding to the argument that the Corps of

Engineers might grant Florida Rock a permit to mine 1,560

acres after denying a permit to mine 98 acres: “We do not

think that the mere possibility a permit might be granted, like

the possibility one might put a pot of water on a hot stove

and have it freeze, is a reality." Florida Rock v. United

States, 791 F.2d 893, 904 (Fed. Cir.), cert. denied,

479 U.S. 1053 (1986) (Florida Rock I).

Similarly, the trial court in Loveladies Harbor v.

United States, 15 Cl. Ct. 381 (1988) (Loveladies IT) (denying

summary judgment for government in taking claim against

government for failure to grant a wetlands permit); 21 Cl.

Ct. 153 (1990) (Loveladies II) (awarding $2.6 million in

takings damages); aff'd, 28 F.3d 1171 (Fed. Cir. 1994),

refused to require the applicant to pursue any additional

permit applications once it became clear that the property

could not be put to economic use. The trial court found that

the plaintiff should not be forced to resort to “some endless

series of requirements." Loveladies I, 15 Cl. Ct. at 386.

The court also considered and promptly rejected suggestions

(which were ridiculous in light of the property’s location and

proximity to residential development) from the Corps of

Engineers that the property could be put to some other

economically viable use, such as farming or hunting.

Loveladies Tl, 21 Cl. Ct. at 158-59. On affirming the

11

decision, the Federal Circuit agreed that economically viable

use had been denied on the facts of the case. 28 F.3d

at 1182.

In Whitney Benefits, Inc. v. United States, 926 F.2d

1169 (Fed. Cir.), cert. denied, 502 U.S. 952 (1991), the

court rejected the proposition that the owner of a coal mine

had to apply for permits which would have surely been

denied under the law. As the Whitney case was ably

summarized by the same court later in Loveladies Il, “the

regulatory enactment, the Surface Mining Control and

Reclamation Act of 1977, had its intended effect, precluding

the surface mining of plaintiff's coal field because of the

overlying alluvial valley floor. This was based on extensive

fact finding by the trial court regarding the purpose of the

imposition, the nature of the property, its alternative uses,

and the extent to which all or only a portion of plaintiff’s

property was so limited." Loveladies II, 28 F.3d at 1181.

The appeals court in Whitney Benefits rejected arguments by

the government that the plaintiff had to apply for additional

permits. It noted that the coal mining statute at issue

"expressly provides that ‘no permit shall be approved’ under

conditions precisely descriptive of the Whitney coal estate.’"

Whitney Benefits, 926 F.2d at 1171. The court concluded

that an application would be "futile" and “absolutely fore-

doomed." Jd. at 1172.

The Ninth Circuit has, on occasion, applied the futility

exception to constitutional challenges to zoning decisions. In

Herrington v. County of Sonoma, 834 F.2d 1488 (9th Cir.),

modified at 857 F.2d 567 (1988), the court, after first noting

that it would apply the same ripeness considerations in due

process and Equal Protection Clause challenges to zoning

ordinances as this Court applied in the context of takings

challenges, 857 F.2d at 569, held that it would be

"inappropriate to require the Herrington’s to have formally

completed a hopeless application." 857 F.2d at 569. Instead

the court adopted the “one meaningful application" rule,

12

meaning that a landowner cannot plead futility until he has

filed at least one meaningful application. The court thus

allowed the Herringtons to pursue a claim despite the fact

that their permit had been rejected in the preliminary stage:

"Under the circumstances of this case, it would be inappro-

priate to require the Herringtons to have formally completed

a hopeless application." Jd.!

Similarly, in Hoehne v. City of San Benito, 870 F.2d.

529, 534-35 (9th Cir. 1989), the court held that a landowner

need not make an additional rezoning application when it was

clear that it would be "futile." But cf. Kinzli v. City of Santa

Cruz, 818 F.2d 1449 (th Cir.), amended at 830 F.2d 968

(1987), cert. denied, 484 U.S. 1043 (1988) (the court

declined to apply the futility exception when an applicant had

claimed that under the existing regulatory regime no

application could possibly result in a marketable property.

The court, while agreeing that the futility exception existed,

thought it unwise to speculate on the “marketability” of an

affected property without the benefit of a permit denial.).

See also Zilber v. Town of Moraga, 692 F. Supp. 1195, 1199

(N.D. Cal. 1988) (finding that the Ninth Circuit’s futility

rule in Kinzli is “harsh and counterintuitive" but still

controlling).

In the context of a takings challenge to a rent control

regulation, the Ninth Circuit has on several occasions held

that the ripeness doctrine does not require futile procedures.

For example, in Sierra Lake Reserve v. City of Rocklin,

938 F.2d 951, 957 (9th Cir. 1991), vacated on other

grounds, ___ U.S. __,, 113 S. Ct. 31 (1992), the court

1 The Ninth Circuit also did not require the Herringtons to apply for a

variance: “Nevertheless ... application for a variance—need not be met in this

case because pursuit of a variance was not a legally viable option." Herrington,

857 F.2d at 569-70.

13

found there was no need to pursue futile California state

court remedies in a mobile home rent control takings case as

a prerequisite for pursuing a federal claim. Accord Azul

Pacifico, Inc. v. City of Los Angeles, 948 F.2d 575 (9th

Cir. 1991), on reconsideration, 973 F.2d 704 (9th Cir.

1992), cert. denied, _ _ U.S. __, 113 S. Ct. 1049 (1993).

The “one meaningful application” rule was also

followed by the Eleventh Circuit in Eide v. Sarasota County,

908 F.2d 716, 726 n.17 (1990). The Eleventh Circuit has

also noted that "[i]n most cases, no ‘final decision’ has been

reached until an aggrieved landowner has applied for at least

one variance to a contested zoning ordinance." Reahard v.

Lee County, 30 F.3d 1412, 1415 (11th Cir. 1994).2 The

Eleventh Circuit has also held that only one application need

be made in an analagous substantive due process challenge

where evidence showed that the only alternative to a rezoning

was the existing zoning. The city failed to prove that any

use other than the particular zoned use would be permitted.

Greenbriar v. City of Alabaster, 881 F.2d 1570, 1576 (11th

Cir.), reh’g denied, 893 F.2d 346 (11th Cir. 1989) ("The

City has effectively conceded that the only alternative plan of

development would have been under the existing zoning. As

there is no uncertainty regarding the level of development

that would be permitted ... [a] reapplication requirement

serves no purpose here.")’ Thus, the Eleventh Circuit’s

holding conflicts with the argument of the Pennsylvania

Commonwealth court that the owner must prove a negative.

2 The Reahard decision ultimately found that a federal takings case was not ripe

for failure to exhaust state takings remedies.

3

The court considered ripeness for a due process claim in the same analytical

framework as for takings claims. Id. at 1573-74.

id

C. The Decision of the Pennsylvania

Court Does Not Follow from This

Court’s Precedents Regarding Ripeness

Furthermore, the hypercritical application of the

ripeness doctrine against the Mocks is not consistent with this

Court’s decisions in Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S.

172, 186-94 (1985), and MacDonald, Sommer & Frates v.

Yolo County, 477 U.S. 340, 352 (1986).

In Hamilton Bank, noting that "a claim that the

application of government regulations effects a taking of a

property interest is not ripe until the government entity

charged with implementing the regulations has reached a

final decision regarding the application of the regulations to

the property at issue,” 473 U.S. at 186, the Court found a

takings claim not ripe because the applicant had not applied

for a variance. In the case of the Mocks, the record is

devoid of reference to any available variance procedures.

And, as noted above, the alleged opportunity to apply for

new permits is a chimera. In MacDonald this Court found

a takings claim not ripe because there was “open the

possibility that some development will be permitted."

MacDonald, 472 U.S. at 352. However, the property in

MacDonald was zoned for residential development and the

state appellate court concluded that some significant

development could be approved--but just not the particular

159-unit subdivision development applied for. Jd. at 346-

47.“ No such possibility existed for the Mocks.°

‘ MacDonald, as noted by the dissent, was a close question because the

developer’s allegations that further applications would be futile. 477 U.S. at 390

(J. White, dissenting). However, the county asserted further applications might

be granted. Here, the policies and testimony of the state agency make it clear

that it would be futile to apply for any significant use of the riparian parcel.

SS

15

D. The Pennsylvania Court’s Insistence That the

Mocks Apply for Additional Permits Conflicts

with This Court’s Pronouncement That Government

Has the Burden of Proof in Certain Takings Cases

It was conceded by the court that Mocks had proven

that their permit application had been denied and that the

value of the property without a permit would be zero.

Opinion at 22a. But the court continues to place the burden

of proof on the Mocks to prove that no other permit would

be granted. Placing of the burden on the Mocks ignores this

Court’s holdings on the burden of proof in takings cases.

In the context of a regulatory taking, once a claimant

has made at least a prima facie case that the individual

application of a land use restriction takes property, then the

burden of proof should shift to the government to prove that

its regulatory action, as applied to an individual landowner

in an adjudicative decision, does not constitute a taking. In

Dolan v. City of Tigard, 512 U.S. __, 114 S. Ct. 2309,

2320 n.8 (1994), this Court found that Mrs. Dolan’s case

was not a challenge to a generally applicable zoning

ordinance (where a landowner has the burden of proving that

the legislative act arbitrarily regulates property rights).

Instead, it dealt with a government regulation of property

applied in an “adjudicative decision" on an individual

building permit condition. There the burden shifts to the

government to prove that there has been no taking. /d.

* For two illuminating discussions of the doctrinal and practical difficulties

presented by overzealous adherence to ripeness rules in the context of takings

claims, see Timothy Kassouni, The Ripeness Doctrine and the Judicial Relegation

of Constitutionally Protected Property Rights, 29 CALIPORNIA WESTERN L. REV.

1 (1992); and Michael Berger, The Ripeness Mess in Land Use Cases or How the

Supreme Court Converted Federal Judges into Fruit Peddlers, 1991 Institute on

Planning, Zoning, and Eminent Domain, Ch. 7 (Sw. Legal Found. 1991).

16

Here, the Mocks have had their land use application

denied leaving the property without value. For all practical

purposes, any use of their property has been conditioned on

the Mocks’ willingness to forego touching all but a tiny

fraction of the land that is not accessible or commercially

useful. Adjudication, Appendix E at 43a-44a, Paragraph 50.

The Mocks have made a prima facie case that their land has

been taken. The burden is now on the government to prove

otherwise, not on the Mocks to engage in a process of

endless applications to prove again and again that no permit

would ever be issued.

il

THERE IS NO "RIPARIAN LAND"

EXCEPTION TO THE TAKINGS DOCTRINE

In Lucas, the State of South Carolina argued that

David Lucas had no right to build on his land because it was

beachfront property where all building was a nuisance-like

activity. This Court doubted that assertion was correct and

remanded the case for a determination of whether building a

beachfront home was a nuisance in South Carolina. 112 S.

Ct. at 2901-02. On remand, the South Carolina Court found

that there was no such nuisance. Lucas v. South Carolina

Coastal Council, 424 S.E.2d 484 (S.C. 1992).

Like David Lucas, the Mocks have never disputed that

they are subject to reasonable regulations. However, the

Pennsylvania court carved out a special rule for owners of

riparian land, alleging that they should expect to be so highly

regulated that they necessarily lack (unless they are able to

prove otherwise) “reasonable investment backed expecta-

tions” to develop their land. Thus, the court recited EHB’s

finding that the Mocks’ "investment-backed expectations

were not destroyed, because they never introduced evidence

as to what their expectations were ... because riparian land

has been ‘the subject to regulation for centuries.’" Opinion

17

at Appendix C, 13a. And later in its opinion the court

proceeded to find that

[a]s to the Mocks’ future plans, we further agree

with the board that the Mocks could not

reasonably expect to develop their land free from

government regulation because it is riparian land

which has been subject to regulation for

centuries.

Opinion at 23a. This statement undercuts the principle that

the landowners can expect to put their property to

economically viable use. See Nollan v. California Coastal

Commission, 483 U.S. at 833 n.2 (there is a right to build on

property). More significantly, however, the Court is carving

out an exception to the takings doctrine by claiming that it

can never be assumed that owners of riparian or floodplain

land can have reasonable investment-backed expectations to

use their land.®

To be sure, owners of riparian property may be subject

to greater regulation than others. Lucas, 112 S. Ct. at 2900.

However, this fact has never been seen to countenance a

denial of economically viable use of property, especially

when the use is consistent with preexisting uses of

neighboring riparian properties and when the government is

not using the riparian lands for the purpose of accessing

navigable waters--which is the limiting parameter for the

navigational servitude exception for riparian land. See

Kaiser Aetna v. United States, 444 U.S. 164, 177 (1979).

Indeed, in Kaiser Aetna the Court found the riparian land

exception did not apply:

’ The Pennsylvania Court, Opinion at 13a, cites to White v. Pennsytvania

Railroad Co., 47 A.2d 200 (1946), for the proposition that riparian land has been

“subject to regulation for centuries." But White dealt with a landowner blocking

a natural watercourse, damaging neighboring land. It was not a takings case.

Neither it nor any other cited case stands for the proposition that landowners in

Pennsylvania may not develop riparian land.

18

Here, the Government’s attempt to create a public

right of access to the improved pond goes so far

beyond ordinary regulation or improvement for

navigation as to amount to a taking under the

logic of Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922).

Kaiser Aetna, 444 U.S. at 178. Similarly, in Loveladies

Harbor, the federal circuit was unimpressed by arguments

that the existence of modern wetlands regulations trumps an

owner’s investment-backed expectations for previously

acquired property: “It is important to note that Loveladies

purchased the property with the intent to develop it long

before these particular state and federal regulatory programs

came into effect." Loveladies Harbor Il, 28 F.3d at 1183.

Similiarly, the Mocks purchased their property in 1963, long

before today’s heightened awareness and regulation of

wetlands. Kaiser Aetna and Loveladies are both clearly at

odds with that of the Pennsylvania court.’

Indeed, by discovering a newly expanded riparian land

exception to the takings doctrine, the court is following a

growing trend to redefine property rights in order to

minimize the potential of a governmental taking. See, e.g.,

Stevens v. City of Cannon Beach, 854 P.2d 449 (1993), cert.

denied, _ U.S. __, 114 S. Ct. 1332 (1994) (dissent by

Scalia, J., expressing concern over the extension of the

“public trust doctrine” to what had previously been

7 In contrast to the Pennsylvania court's emphasis on the Mocks’ land being in

a floodplain, the Ninth Circuit has held that the fact that land is in a floodway

does not by itself defeat a takings claim. “[Allegations that] the County, for

illegitimate reasons, has deprived the McDougals of all economically viable uses

of their property in designating it a floodway and in denying their application for

a conditional use permit for retaliatory reasons ... state a claim for compensation

for a regulatory taking.” McDougal v. County of bnperial, 942 F.2d 668, 680

(9th Cir. 1991).

19

considered private property); Nansay Hawaii, Inc. v. Public

Access Shoreline Hawaii, 903 P.2d 1246 (Haw. 1995),

petition for certiorari pending, 64 U.S.L.W. 30 d 96

(extending “custom” of “gathering rights” to all persons with

native Hawaiian blood and expanding that custom to allow

native Hawaiians to restrict land development).

The notion that property rights can be defined anew,

however, flies in the face of this Court’s warning in Lucas v.

South Carolina Coastal Council, “if the protection against

physical appropriations of private property was to be

meaningfully enforced, the government’s power to redefine

the range of interests included in the ownership of property

was necessarily constrained by constitutional limits." Lucas,

112 S. Ct. at 2892. Similarly, in Hughes v. State of

Washington, 389 U.S. 290 (1967), Justice Stewart warned

that "a State cannot be permitted to defeat the constitutional

prohibition against taking property without due process of

law by the simple device of asserting retroactively that the

property it has taken never existed at all." 389 U.S. at 296-

97 (Stewart, J., concurring.) See also Chicago, Burlington

& Quincy Railroad Co. v. City of Chicago, 166 U.S. 226,

233-34 (1897) (potential of a "judicial takings" mentioned).

The Pennsylvania courts must be restrained from

creating an expansive new riparian or floodplain land

exception to the takings doctrine.

CONCLUSION

Property ownership carries with it certain rights, such

as the right to make reasonable and beneficial use of land.

Property owners should not be subjected to an endless series

of circus hoops before they can hope to exercise that right or

present a claim for relief after use of the property is denied

by the governmental body. Actions by state courts that

redefine property rights to benefit the public at the expense

20

of individual landowners must be closely monitored by this

Court.

For these reasons, it is appropriate and timely that this

Court grant certiorari in order to provide the needed

consistency and guidance to the lower courts.

DATED: April, 1996.

Respectfully submitted,

* JAMES S. BURLING

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation