Amicus Curiae Brief — Santini v. Connecticut Hazardous Waste Management Service

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Supreme Count.Us. |

FILED |

AUG 36 2004 |

“a OFFICE OF THE CLERK

No. 04-142

In The

Supreme Court of the United States

October Term, 2004

EVANDRO S. SANTINI, et ai.,

Petitioners,

V.

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Respondent.

On Petition For A Writ Of Certiorani ;

To The United States Court Of Appeals For The Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF HOME

BUILDERS AS AMICUS CURIAE IN SUPPORT OF THE

PETITIONERS

MARY V. DiCRESCENZO KENNETH B. BLEY

DUANE J. DESIDERIO (Counsel of Record)

THE NATIONAL ASSOCIATION COX, CASTLE & NICHOLSON LLP

OF HOME BUILDERS 2049 Century Park East, 28th Floor

1201 15th Street, N.W. Los Angeles, CA 90067

Washington, D.C. 20005 (310) 284-2231

(202) 822-0250 Attomeys for THE NATIONAL

ASSOCIATION OF HOME

BUILDERS

TABLE OF CONTENTS

THE NAHB’S INTEREST ARISES FROM ITS

MEMBERS’ CONCERNS AS TO. THEIR

ABILITY TO RECOVER FOR THE INJURY

SUFFERED BY THEM WHEN THEIR LAND

IS MADE UNUSABLE FOR SOME PERIOD

OF TIME

SUMMARY OF ARGUMENT

ARGUMENT

I.

II.

CONCLUSION

THE COURT’S PREVIOUS STATEMENTS

CONCERNING THE BURDEN A

LANDOWNER SHOULD BE REQUIRED

TO BEAR’ PRESENT COMPETING

POLICIES THAT ONLY THIS COURT

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STATE COURTS ARE, LITERALLY AND

FIGURATIVELY, ALL OVER THE MAP

ON HOW TO DEAL WITH _ ISSUES

INVOLVING CONDEMNATION. .................:

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TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon, 447 U.S. 255 (1980)......... 4,5

Armstrong v. United States, 364 U.S. 40 (1960)........... 3

Bailey v. Myers, 76 P.3d 898 (Ariz. Ct. App. 2003)..... 6

Berman v. Parker, 348 U.S. 26 (1954) .......cccccccccceeceees 6

Cohens v. Virginia, 19 U.S. 264 (1821)..............000 cee 5

County of Wayne v. Hathcock, 2004 WL 1724875

(ENCE. Fal Th, DOOD is esrccannsiaue aia 6

Danforth v. United States, 308 U.S. 271 (1939)... 3, 4, 5

Danforth v. United States, 105 F.2d 318

CRC. FBI Do. 5 csessascncdecsnncs eee eee at ieee 5

DUWA, Inc. v. City of Tempe, 52 P.3d 213

(Artz. CY. AMM DORE E ssiiccscatotital eee bia 6

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

She 0.0. FOC eigenen 4

Foster v. City of Detroit, 405 F.2d 138

(Ge Ce, FI ccinetaccctosesenaecnsaniaiatad 6

Johnson v. City of Minneapolis, 667 N.W.2d 109

CONE. IID i csavsnsncsnsconsnccdasnteaniaemlanieuaanasinerenatens 6

TABLE OF AUTHORITIES (cont.)

CASES

Page(s)

Kelo v. City of New London, 843 A.2d 500

REET SE a 6

Landgate, Inc. v. California Coastal Comm'n,

953 P.2d 1188 (Cal.), cert. denied,

SN ME Disc teseerdisnccusaseesnsnsaisesasnasttandecasanees 6

Lochner v. People of the State of New York,

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Merkur Steel Supply, Inc. v. City of Detroit,

680 N.W.2d 485 (Mich. Ct. App. 2004) 00... 6

Penn Central Transportation Co. v. City of New York,

I x occaiccscespkshseda'gantovanonessisannataninnsysde 7

Pheasant Bridge Corp. v. Township of Warren,

777 A.2d 334 (N.J. 2001), cert. denied,

I: TE CI ss cs sccsnaKanasninxavicasnsnansseersevacaionsven 6

Southwestern Illinois Dev. Auth. v. National City

Environmental, L.C.C., 768 N.E.2d 1 (Ill. 2002)........ 6

Sea Cabins on the Ocean IV Homeowners Ass'n, Inc. v.

City of North Myrtle Beach, 418 S.E.2d 595

aa asia hatawuniactvesbcnusonaasnbnanenases 6

TABLE OF AUTHORITIES (cont.)

CASES

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Reg'l Planning Agency, 535 U.S. 302 (2002)..... 4, 5, 7

Page (s)

Torromeo v. Town of Fremont, 813 A.2d 389 (N.H. 2002),

cert. denied, S39 U.S. 924 (ZOOS) ......cceccccscsessesecccssees 6

United States v. Causby, 328 U.S. 256 (1946)

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BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS AS AMICUS CURIAE IN

SUPPORT OF THE PETITIONERS

The National Association of Home _ Builders

(“NAHB”) has received the parties’ written consent to file

this brief as amicus curiae in support of the petitioners and

has filed the letters of consent with the Clerk of the Court.!

THE NAHB’S INTEREST ARISES FROM ITS

MEMBERS’ CONCERNS AS TO THEIR ABILITY

TO RECOVER FOR THE INJURY SUFFERED BY

THEM WHEN THEIR LAND IS MADE UNUSABLE

FOR SOME PERIOD OF TIME

The NAHB represents over 215,000 builder and

associate members throughout the United States. Its

members include people and firms that construct and

supply single family homes as well as apartment,

condominium, commercial and industrial builders, land

developers and remodelers. It is the voice of the American

shelter industry. It is, therefore, concerned with any

judicial decision that calls into question the protection

rovided to landowners when, as in the case at bar, a court

olds that the injury suffered by a landowner whose land is

effectively sterilized for some period of time cannot

possibly result in a compensable taking.

The NAHB has appeared before the Court as an

amicus curiae or as “of counsel” to the landowners in a

number of cases involving the rights and remedies of

landowners who have been adversely affected by

governmental actions. These include Agins v. City of

Tiburon, 447 U.S. 255 (1980); San Diego Gas & Electric

Co. v. City of San Diego, 450 U.S. 621 (1981); Williamson

1 No counsel for any of the parties authored any part of this

brief. No person or entity other than the NAHB has made

any monetary contribution to the preparation or submission

of this brief.

2

County Reg’l Planning Comm'n v. Hamilton Bank, 473

U.S. 172 (1985); MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340 (1986); Nollan v. California Coastal

Commission, 483 U.S. 825 (1987);2 Yee v. City of

Escondido, 503 U.S. 519 (1992); Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of

Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Communities for a Great Or., 515 U.S. 687

(1995); Suitum v. Tahoe Regional Planning Agency, 520

U.S. 725 (1997); City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999); Solid Waste Agency

of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S.

159 (2001); Palazzolo v. Rhode Island, 533 U.S. 606

(2001); Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Reg'l Planning Agency, 535 U.S. 302 (2002); Borden

Ranch P’ship v. U.S. Army Corps of Eng’rs, 537 U.S. 99

(2002); City of Cuyahoga Falls v. Buckeye Cmty. Hope

Found., 538 U.S. 188 (2003); S. Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 124 S. Ct. 1537 (2004).

SUMMARY OF THE ARGUMENT

Past statements by this Court set forth competing

policies that only this Court can reconcile. Lower federal

and state courts are hopelessly confused as how to apply

these policies. This Court’s grant of certiorari and review

of the case at bar will have a widespread effect on situations

involving eminent domain and, beyond that, on the

allocation of the burdens resulting from governmental

actions which renders land unusable for some period of

time.

2 The Court’s opinion cited the NAHB’s brief. 483 US. at

840.

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ARGUMENT

I.

THE COURT’S PREVIOUS STATEMENTS

CONCERNING THE BURDEN A LANDOWNER

SHOULD BE REQUIRED TO BEAR PRESENT

COMPETING POLICIES THAT ONLY THIS COURT

CAN RECONCILE

Stripped to its essentials, the facts underlying the

decision by the Court of Appeals in the case at bar involves

a complete loss of use of the property owned by Mr. Santini

and his company for 24 months while planning went on to

determine whether the site should be acquired by the

Connecticut Hazardous Waste Management Service using

its power of eminent domain. This Court has made a

number of statements over the years which arguably apply.

e “A reduction or increase in the value of

property may occur by reason of legislation

for or the beginning or completion of a

project. Such changes in value are

incidents of ownership.” Danforth v.

United States, 308 U.S. 271, 285 (1939).

e “It is the owner’s loss, not the taker’s gain,

which is the measure of the value of the

property taken.” United States v. Causby,

328 U.S. 256, 261 (1946).

e “The Fifth Amendment’s guarantee that

private property shall not be taken for a

public use without just compensation was

designed to bar government from forcing

some people alone to bear public burdens

which, in all fairness and justice, should be

borne by the public as a_ whole.”

Armstrong v. United States, 364 U.S. 40, 49

(1960).

. “Appellee argues that requiring

compensation for denial of all use of land

prior to invalidation is inconsistent with

this Court’s decisions in Danforth v. United

States and Agins v. Tiburon....

“Rut these cases merely stand for the

unexceptional propositions that the

valuation of property which has been taken

must be calculated as of the time of taking,

and that depreciation in value of the

property by reason of preliminary activity

is not chargeable to the government.” First

English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482

U.S. 304, 319-320 (1987) [citations

omitted].

e “In our view the answer to the abstract

question whether a temporary moratorium

affects a taking is neither ‘yes, always’ nor

‘no, never;’ the answer depends upon the

particular circumstances of the case.”

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 US.

302, 321 (2002) [footnote omitted].

The foregoing statements — contradictory on the

facts before the Court — illustrate the truth of Justice

Holmes’s statement in his dissent in Lochner v. People of

the State of New York, 198 U.S. 45, 76 (1905):

“General propositions do not decide

concrete cases. The decision will depend on a

judgment or intention more subtle than any

articulate major premise.”

As a corollary, the statements in every opinion are

meaningful only in the context of the factual situation

which gives rise to them.

2

It is a maxim not to be disregarded, that

general expressions, in every opinion are to be

taken in connection with the case in which

those expressions are used. If they go beyond

the case, they may be respected, but ought not

to control when the very point is presented for

decision. Cohens v. Virginia, 19 U.S. (6

Wheat.) 264, 399 (1821).

Chief Justice Marshall’s statement in Cohens and

Justice Holmes’s in Lochner are particularly appropriate in

the case at bar given the repeated references to Danforth

which involved a farm which was physically unaffected by

Congress’s authorization of the acquisition of flowage

easements. Danforth v. United States, 105 F.2d 318, 139

(8th Cir. 1939).

Given the very different factual situations in the case

at bar and in Danforth, this Court’s grant of certiorari and

subsequent review would go a long way toward

reconciling the competing policies quoted above.

Il.

STATE COURTS ARE, LITERALLY AND

FIGURATIVELY, ALL OVER THE MAP ON HOW

TO DEAL WITH ISSUES INVOLVING

CONDEMNATION

The analysis provided by the Second Circuit, relying

as it does upon this Court’s statements in Danforth and

Agins, actually raises a per se rule that any planning

action, regardless of its duration or impact on the

landowner, does not result in a compensable taking. (App.

at 23a-27a.) As such, it contradicts this Court’s

statements in Causby and Tahoe-Sierra. This, by itself, is

enough of a reason for this Court to grant its writ of

certiorari.

The Second Circuit’s decision in the case at bar does

not exist in a vacuum. In fact, the law involving both the

extent of the power of eminent domain and the effect of

6

temporary takings is in a state of flux unmatched since this

Court’s decision in Berman v. Parker, 348 U.S. 26 (1954).

Thus, for example, state courts, interpreting both their own

and the federal Constitutions, as well as this Court’s

decisions, have come to very different conclusions in the

very recent past. For instance, three recent cases have held

that governmental agencies did not have the power to

condemn one person’s private property and transfer it-to

another merely because of the economic benefits which

would accrue to the larger community. County of Wayne

v. Hathcock, 2004 WL 1724875 (Mich. July 30, 2004);

Bailey v. Myers, 76 P.3d 898 (Ariz. Ct. App. 2003); and

Southwestern Illinois Development Authority v. National

City Environmental, L.C.C., 768 N.E.2d 1 (Ill. 2002).

On the other hand, other recent cases have

specifically upheld just this type of action. Kelo v. City of

New London, 843 A.2d 500 (Conn. 2004); and DUWA,

Inc. v. City of Tempe, 52 P.3d 213 (Ariz. Ct. App. 2003).

Contrary to the holding in the present case by the

Second Circuit, other recent cases have held that pre-

condemnation actions, if bad enough, can result in a

compensable taking. Merkur Steel Supply, Inc. v. City of

Detroit, 680 N.W.2d 485 (Mich. Ct. App. 2004); and

Johnson v. City of Minneapolis, 667 N.W.2d 109 (Minn.

2003). This is, of course, not a new phenomenon. See,

e.g., Foster v. City of Detroit, 405 F.2d 138 (6th Cir.

1968).

In an analogous situation, a number of State

Supreme Courts have imposed a per se rule that invalid

regulation, successfully invalidated through litigation,

cannot result in a taking. Torromeo v. Town of Fremont,

813 A.2d 389 (N.H. 2002), cert. denied, 539 U.S. 923

(2003); Pheasant Bridge Corp. v. Township of Warren,

777 A.2d 334 (N.J. 2001), cert. denied, 535 U.S. 1077

(2002); Sea Cabins on the Ocean IV Homeowners

Association, Inc. v. City of North Myrtle Beach, 418

S.E.2d 595 (S.C. 2001); and Landgate, Inc. v. California

Coastal Commission, 953 P.2d 1188 (Cal.), cert. denied,

525 U.S. 876 (1998).

7

Although presented in different contexts, all of the

foregoing cases have in common situations where a

landowner is unable to do anything with his or her land for

some period of time because of actions taken by a

governmental agency attempting to further the public

welfare. Regardless of the factual differences, each

presents a question of when fairness requires that society

at large, rather than a single landowner, should bear the

cost of governmental actions. This Court’s grant of

certiorari and subsequent review in the case at bar would

go a long way to providing guidance to lower courts, both

state and federal, as to how the question should be

answered.

CONCLUSION

The NAHB’s reading of this Court’s opinion in

Tahoe-Sierra is that planning is a good thing, that the delay

associated with planning cannot result in a per se

compensable taking and that the multi-factor analysis called

for by Penn Central Transportation Co. v. City of New

York, 438 US. 104 (1978), applies in similar

circumstances. However, the NAHB is concerned that a

number of courts — federal as in the case at bar and state as

cited above — are of the opinion that there is something

special about the planning associated with the exercise of

the power of eminent domain which should insulate it from

any possibility of a taking occurring. Given the existence

today of cases trying to make sense of this Court’s

| pronouncements, gleaned from different cases having

| different facts decided at different times, the NAHB

| believes that the case at bar provides a perfect vehicle for

| this Court to explain that it really intended to have each

case looked at on its merits when a planning delay —

whether in a prosaic land use situation or an exotic eminent

domain case — is presented to the courts, both federal and

state.

aa

8

Accordingly, the NAHB respectfully requests that

the Court grant the petition for a writ of certiorari

requested by the petitioners.

DATED: August 30, 2004 Respectfully submitted,

Mary V. DiCrescenzo Kenneth B. Bley

Duane J. Desiderio (Counsel of Record)

THE NATIONAL

ASSOCIATION OF riven Depa

HOME BUILDERS NICHOLSON LLP

Attorneys for Amicus Curiae

THE NATIONAL

ASSOCIATION OF HOME

BUILDERS