Petition for Writ of Certiorari — Landgate, Inc. v. California Coastal Commission

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Supreme Court, U.S.

FILED

98 188 W289

CHHCE GF THE OutRx

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

LANDGATE, INC.,,

Petitioner,

CALIFORNIA COASTAL COMMISSION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE CALIFORNIA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN M. REZNIK

(Counsel of Record)

JOHN M. BOWMAN

JEFFER, MANGELS, BUTLER

& MARMARO, LLP

2121 Avenue of the Stars

Tenth Floor

Los Angeles, California 90067

(310) 203-8080

July 28, 1998 Counsel for Petitioner.

Washington, 0.C. © THIEL PRESS © (202) 3283286

QUESTIONS PRESENTED

1. Where real property cannot be put to any economically

beneficial or productive use from the time a state administrative

agency makes a final decision to deny a development permit

until judicial invalidation of the agency's decision, does a

property owner have a constitutional right to receive just

compensation for a temporary taking under Lucas v. South

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

judicial review of the agency's permit denial constitute a non-

compensable "normal delay" in the development process within

the meaning of First English Evangelical Lutheran Church of

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

2. Under First English, does the implied exception from

temporary takings liability for "normal delays" in obtaining

development permits extend to judicial proceedings that

conclude with a holding that an administrative agency's decision

to deny a permit was not authorized by state law, or does it

cease to apply once the agency charged with implementing the

regulations renders a final decision on the application?

3. Did the court below err in holding that the temporary

denial of all use of land caused by an agency's erroneous

decision to deny a development permit constitutes "normal

delay" within the meaning of First English as long as the

agency's decision, although unlawful, attempted to advance

some legitimate governmental interest?

PARTIES TO THE PROCEEDINGS

The parties to the proceedings in this Court are Landgate,

Inc. ("Landgate") and the California Coastal Commission (the

"Commission").

Landgate is the owner of the subject real property and was

the applicant in the underlying administrative proceedings.

Landgate has neither a parent company nor any subsidiaries.

The Commission is a state agency organized and existing

under the laws of the State of California. Under the California

Coastal Act of 1976, California Public Resources Code §§

30000 et seq., the Commission has jurisdiction to approve

"development" within the coastal zone, as defined by law.

eee

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

AT ISSUE

STATEMENT OF THE CASE

A. Background

B. Proceedings Below

REASONS FOR GRANTING

THE PETITION

A. The Petition Should Be Granted

Because It Presents Important

Questions Left Unanswered by

this Court in First English

B. The Questions Presented Are

Important

1. The Test Created by the Court Below

Effectively Restores the "No

Compensation" Rule Rejected by this

Court in First English

2. The Test Created By the Court Below

Vitiates the "Categorical Takings"

Rule of Lucas

3. The Test Created by the Court Below

Invites Regulatory Abuse

4. The Test Created by the Court Below

Unfairly Forces Property Owners to

Bear the Burden of Governmental

"Mistakes" in the Permitting Process

C. The Decision of the Court Below Is

Erroneous and Conflicts with this Court's

Decisions in First English, Williamson

County, and Lucas

1. The Conflict with First English

2. The Conflict with Williamson

County

3. The Conflict with Lucas

CONCLUSION

STS

TABLE OF AUTHORITIES

Page(s)

CASES

1902 Atlantic Lid. v. United States,

26 Cl. Ct. 575 (1992) 9

Agins v. Tiburon,

24 Cal.3d 266 (1979) 14

Agins v. Tiburon,

447 U.S. 255 (1980) 14, 23

Armendariz v. Penman,

75 F.3d 1311 (9th Cir. 1996) 19

California Coastal Commission v. Buckley,

98 Daily Journal D.A.R. 7537 (July 10, 1998) 12

Chicago, Burlington & O.R. Co. v. Chicago,

166 U.S. 226 (1897) l

City of St. Petersburg v. Bowen,

675 So.2d 626 (Fla. App. 1996) 10

County of Imperial v. McDougai,

19 Cal.3d 505 (1977) 26

Del Monte Dunes v. City of Monterey,

95 F.3d 1422 (9th Cir. 1996) 21

Dolan v. City of Tigard,

512 U.S. 374 (1994) 21

Page(s)

Dumont v. Town of Wolfeboro,

622 A.2d 1238 (N.H. 1993) 9

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

482 U.S. 304 (1987) i, 10, 11,

12, 13, 14,

15, 19, 20,

2, 23

Healing v. California Coastal Commission,

22 Cal.App.4th 1158 (1994) 6,9

Landgate, Inc. v. California Coastal Commission,

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

Landgate, Inc. v. California Coastal Commission,

61 Cal.Rptr.2d 196 (1997) l

Lechuza Villas West v. California Coastal Commission,

60 Cal. App.4th 218 (1997) 26

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) i, 11,

16, 27, 28

Lujan Home Builders v. Town of Orangetown,

568 N.Y.S.2d 850 (1991) 9

MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340 (1986) 24, 26

Page(s)

Macri v. King County,

126 F.3d 1125 (9th Cir. 1997) 20

Nolian v. California Coastal Commission,

483 U.S. 825 (1987) 18, 20, 29

Parks v. Watson,

716 F.2d 646 (9th Cir. 1983) 20

Patsy v. Florida Board of Regents,

457 U.S. 496 (1982) 25

Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1978) 10

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) 13

San Diego Gas & Electric Co. v. City of San Diego,

450 U.S. 621 (1981) 18

Selby Realty Co. v. City of San Buenaventura,

10 Cal.3d 110 (1973) 18

Smith v. Town of Wolfeboro,

615 A.2d 1252 (N.H. 1992) 9

Steel v. Cape Corporation,

677 A.2d 634 (Md. Ct. Spec. App. 1996) 10

Suitum v. Tahoe Regional Planning Agency,

117 S. Ct. 1659 (1997) 24

Page(s)

Williamson County Regional Planning

Commission v. Hamilton Bank of

Johnson City,

473 U.S. 172 (1985) 10, 11,

24, 25, 26

STATUTES

28 U.S.C. §1257(a) l

42 U.S.C. 1983 21

California Public Resources Code §§30000 et seq. ii

OPINIONS BELOW

The opinion of the California Supreme Court is reported as

Landgate, Inc. v. California Coastal Commission, \7 Cal.4th

1006, 73 Cal Rptr.2d 841 (1998), the entire opinion appears at

Appendix A to the Petition. The opinion of the California Court

of Appeal upholding the trial court's decision to grant

Landgate’s motion for summary adjudication of its takings claim

was certified for partial publication pursuant to California Rules

of Court, Rules 976(b) and 976.1, and was partially published

in an unofficial reporter as Landgate, Inc. v. California Coastal

Commission, 61 Cal.Rptr.2d 196 (1997), the entire opinion

appears at Appendix B to the Petition. The earlier opinion of

the California Court of Appeal upholding the trial court's

decision to issue a writ of mandate is unreported; the entire

opinion appears at Appendix C to the Petition. The relevant

orders and opinions of the trial court are unreported, they

appear at Appendices D and E of the Petition.

JURISDICTION

The Supreme Court of California entered its opinion and

judgment on April 30, 1998. The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fifth Amendment to th~ United States Constitution

provides in pertinent part: “nor shall private property be taken

for public use without just compensation.”

The Fifth Amendment is made applicable to the States

through the Fourteenth Amendment. See Chicago, Burlington

& Q.R. Co. v. Chicago, 166 U.S. 226, 239 (1897). The

Fourteenth Amendment provides in pertinent part: “nor shall

any State deprive any person of life, liberty, or property,

without due process of law."

STATEMENT OF THE CASE

A. Background

Landgate owns a 2.5-acre vacant lot in the Malibu hills

zoned for residential use. Although the lot is not visible from

the coastline, it is located within the "coastal zone" as delineated

by the Commission. App. 3a.

The subject lot was created by Landgate's predecessor-in-

interest and approved by the County of Los Angeles in 1989

through a procedure known as a "lot line adjustment." The

purpose of the lot line adjustment was to accommodate the

County's plan to construct an east-west roadway bisecting two

adjoining lots owned by Landgate's predecessor-in-interest.

Under the approved lot line adjustment, the former lots, which

ran in a north-south direction, were reconfigured into two new

lots running in an east-west direction (one lot on each side of

the new roadway). App. 3a.

Landgate purchased the newly-created northern lot in 1990.

After posting a $52,000 street bond, Landgate applied for and

received County approval of grading and building plans to

construct a single-family home on the property. App. 3a.

In October 1990, Landgate filed an application with the

Commission for a coastal development permit for the proposed

residence.” In February 1991, the Commission denied

” Because the Commission had not yet certified the County's "local

coastal program," a coastal development permit was required from the

(continued...)

Landgate's application on the ground that, among other things,

the lot itself was not "legal" because the lot line adjustment

previously approved by the County had not been approved by

the Commission and therefore constituted impermissible

"development" under the Coastal Act. Landgate's request for

reconsideration, which proposed reductions in the height of the

structure and the amount of grading, was denied by the

Commission during its April 11, 1991 meeting.” App. 8a.

Thus, the Commission, in an attempt to expand its

jurisdictional reach, refused to issue a development permit to

Landgate. The Commission's decision to deny the application

constituted a final decision by the Commission regarding the

extent of development it would allow on Landgate's lot -- none.

B. Proceedings Below

In March 1991, Landgate filed a lawsuit against the

Commission, seeking a writ of mandate to set aside the

Commission's final decision to deny the development permit.

The complaint also sought damages for the temporary taking of

Landgate's property without just compensation. App. 7a.

In October 1991, the trial court issued a writ of mandate

overturning the Commission's denial of Landgate's application

V/(...continued)

Commission for the proposed construction.

” During the meeting, the Commission's Chief Counsel advised the

Commission that “without the lot line adjustment some of these

revisions are I think irrelevant." Additionally, the Commission's

Executive Director told the members that "without your willingness to

change the lot line, [the proposed changes] wouldn't have led to a

different result ....". App. 63a.

and ordering the Commission to reconsider the application

without regard to the lot line adjustment (i.e., to consider

Landgate's property to be a legal lot). The trial court

determined that the term "development" as defined by state law

“does not include the lot line adjustment approved and recorded

by the County ....". App. 104a.

In December 1992, the California Court of Appeal affirmed

the trial court's decision to issue the writ. App. 99a. The court

noted that the Commission retained "its ability to regulate and

approve any proposed building on the lot." App. 98a (emphasis

added).

On February 16, 1993 -- nearly two years after the

Commission rendered its final decision to deny Landgate's

application -- the Commission, in response to the trial court's

writ of mandate, conditionally approved a coastal development

permit to construct a residence on Landgate's lot. App. 64a.

Landgate, having expended its construction funds on litigation,

was unable to construct the proposed residence.

Landgate then sought summary adjudication on its

remaining temporary takings claim, arguing that the

Commission's illegal denial of a development permit prevented

it from making any economically viable use of its property. The

Commission also moved for summary judgment, contending

that its "jurisdictional error" did not constitute a taking of

Landgate's property. The trial court granted Landgate's motion

for summary judgment and denied the Commission's motion,

ruling that the Commission had temporarily taken Landgate's

property from February 1991 to February 1993. In its

statement of decision, the trial court ruled that Landgate's

regulatory takings claim was meritorious as a matter of law

"because Landgate has been deprived, at least temporarily, of all

economically viable or productive use of its property insofar as

Landgate, at least temporarily, could not legally obtain any valid

permits or approvals to construct any project on its property as

a result of the Commission's actions."* App. 101a.

The trial court's ruling that the Commission was liable for

the temporary taking of Landgate's property was affirmed by the

California Court of Appeal in a partially published opinion.

App. 90a. In so ruling, the appellate court relied on Lucas,

supra, which held that a restriction that denies all use of

property constitutes a regulatory taking of property without

regard to the public interest advanced in support of the

restriction. Observing that "the Commission does not argue

that a viable use of the land remained after the permit denial,"

the court simply applied Lucas and concluded that the

Commission's decision worked a categorical taking of

Landgate's property for a two-year period. App. 69a. In

response to the Commission's argument that it should not be

held liable for its "mistake," the court added:

Nothing in the record suggests that the lot line

adjustment issue arose out of anything other than the

Commission's ongoing jurisdictional spat with the

County of Los Angeles combined with a desire to

prevent Landgate from building on its parcel. Instead,

the overwhelming sense of the record is that by its

insistence that the lot itself was illegal, the Commission

put Landgate in a situation which was not of Landgate's

own making and which Landgate could do nothing to

cure. In short, this was not a case of bureaucratic

bungling, but a declaration of war between

governmental behemoths in which the inevitable

” After a bench trial on the issue of damages, the trial court

subsequently ordered the Commission to pay temporary takings

damages of $155,657 to Landgate. App. 10a.

casualty was to be a noncombatant, Landgate.* App.

7la-72a.

The California Supreme Court granted the Commission's

petition for review of the case “to address the important

question of whether the Commission's mistaken assertion of

jurisdiction of the lot line adjustment in this case led to a

temporary taking of Landgate's property."* App. lla.

Focusing on the above-quoted language from the Court of

Appeal's decision, the court below, in a 4-3 decision, disagreed

with the characterization of the Commission's action as the

product of a "jurisdictional spat" between two agencies, and

concluded that the Commission's denial of Landgate's permit

application, while erroneous, advanced legitimate governmental

interests.* For this reason, the court concluded that the two-

4 Landgate was apparently not the first "casualty" in the "war"

between the Commission and the County. In Healing v. California

Coastal Commission, 22 Cal.App.4th 1158, 1167-68 (1994), the

Commission took the position that Healing's regulatory takings claim

was not "ripe" because the Commission could not say one way or the

other whether Healing's house "could affect" the County's ability to

obtain certification of its local coastal program -- something the County

had been trying to do since 1982. In rejecting this argument, the court

observed that "[t]o state the Coastal Commission's position is to

demonstrate its absurdity." Jd. at 1168.

¥ In its petition for review, the Commission did not seek review of

the trial court's or the Court of Appeal's determination that the permit

denial deprived Landgate of all use of its property. Consequently,

under California Rules of Court, Rule 28(e)(2), this ruling was not

before the California Supreme Court.

holding was based upon the undisputed fact that the Commission's final

decision on the permit application deprived Landgate of all use of its

(continued...)

—

year delay suffered by Landgate in the development process

constitutes "normal delay" in the development process and

therefore was not a temporary taking of property under the

Fifth Amendment. App. 32a. The court went on to conclude

that the Commission's action was “at most conditional" and

held:

Nothing in First English ... is inconsistent with the

recognition that a judicial determination of the validity

of certain preconditions to development is a normal part

of the development process, and the fact that a

developer must resort to such a determination does not

constitute a per se temporary taking. App. 32a-33a.

(emphasis in original).

Accordingly, a sharply-divided California Supreme Court

reversed and remanded with directions to grant the

Commission's motion for summary judgment and to deny

Landgate's motion for summary adjudication.

In a dissenting opinion joined by Justice Baxter, Justice Chin

sharply criticized the majority opinion below on a number of

grounds. Most notably, Justice Chin pointed out that Justice

Stevens, in his dissent in First English, “articulated the precise

argument on which the majority relies here ... that litigation over

the validity of a land-use restriction is simply a 'normal delay' in

the permit approval process and, therefore, cannot give rise to

a temporary taking." App. 38a. Justice Chin observed that

while the majority opinion in First English “considered Justice

*(__ continued)

property for a two-year period, rather than the Commission's motives

or "bad faith.” Thus, by extensively discussing this secondary aspect

of the case, the California Supreme Court was jousting with a straw

man.

Stevens’ argument and rejected it," it has "found new life in the

majority opinion here." App. 38a (emphasis in original). Justice

Chin concluded that when a regulatory agency prohibits all use

of a particular property, forcing the property owner to sue the

agency to get it to change its position, "its stonewalling is not

fairly characterized as a ‘normal delay’ in the permit approval

process." App. 37a.

awe cman

Justice Brown wrote a second dissenting opinion, also

joined by Justice Baxter, which even more vehemently criticized

the majority. Justice Brown argued that the essential meaning

of both First English and Lucas is that a final decision by a

regulatory agency that denies all economically beneficial use of

the property, even temporarily, is a per se compensable Fifth

Amendment taking. Justice Brown emphasized that Lucas

establishes a categorical rule making all regulation that denies

all economically beneficial or productive use of land

compensable without case-specific inquiry into the public

interest advanced in support of the restraint. Consequently,

Justice Brown concluded that if "a judicial determination of the

validity of certain preconditions to development is a normal part

of the development process, ... then, in California, at least for

now, Lucas is a dead letter." App. 53a.

REASONS FOR GRANTING THE PETITION

This Petition should be granted in order to address the

important questions left unanswered in First English and to

clarify the application of the "categorical takings" rule of Lucas

in the context of a temporary regulatory taking. In particular,

state and lower courts need guidance as to whether this Court's

apparent exclusion of "normal delay" in obtaining development

permits from takings liability extends to litigation brought by a

landowner to set aside an agency's final and erroneous decision

resulting in a denial of all use. Further, in light of the new test

iii alii

announced by the court below, direction is urgently needed as

to whether the "substantial advancement" test applies in a case

where, as here, the government agency's legally erroneous

decision to deny a development permit deprived the owner of all

use of its property.”

” These questions have divided the lower courts. Examples of cases

in which the courts have treated litigation as "normal delay" or have

required takings claimants to establish that permit denial did not

substantially advance legitimate interests notwithstanding the denial of

all use include 1902 Atlantic Ltd. v. United States, 26 Cl. Ct. 575

(1992) (court held that the temporary harms suffered by plaintiff during

the period its permit was denied were significant but cannot be charged

to the government); Lujan Home Builders v. Town of Orangetown,

568 N.Y.S.2d 850 (1991) (court held that “as long as a land use

decision-making process passes constitutional muster in the procedural

sense and a full judicial mechanism exists to challenge the

administrative determination, no cause of action exists for deprivation

of use of the property for the period of time the property could not be

used as requested by reason of administrative denial or relief”); Smith

v. Town of Wolfeboro, 615 A.2d 1252 (N.H. 1992) (court held that

decrease in value of property during the governmental decision-making

process must be borne out by the property owner and does not give rise

to a compensable taking, stating that “[t]he delay inherent in the

statutory process of obtaining subdivision approval, including appeals

to the superior court and to this court, is one of the incidents of

ownership”); and Dumont v. Town of Wolfeboro, 622 A.2d 1238

(N.H. 1993) (court held that “[a]lthough the board’s mistaken decision

impeded the plaintiff's conversion of his property,” the loss was part

of the governmental decision-making process and was therefore not

compensable as a taking). Examples of cases in which the courts have

rejected the "normal delay" defense and/or properly found that a

categorical taking occurred without regard to the governmental interests

advanced include Healing v. California Coastal Commission, 22

Cal.App.4th 1158, 1171 n.7 (1994) (court "summarily" rejected the

Coastal Commission's contention that the delay suffered by plaintiff is

(continued...)

This Petition should also be granted because the new

Landgate test conflicts with this Court's decisions in Lucas,

First English, and Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985). First, the rule established below emasculates Lucas,

rendering it inapplicable in all but the rarest of cases. As Justice

Brown observed in her dissenting opinion below, the majority

decision improperly attempts to supplant Lucas’ categorical rule

with the “squishy, 'multi-factor’ test" of Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 124

(1978), "a standard so amorphous it is capable of producing

virtually any result." App. 44a. Second, the Landgate decision

ignores First English's admonition that "where the government's

activities have already worked a taking of all use of property, no

subsequent action by the government can relieve it of the duty

to provide compensation for the period during which a taking

was effective." 482 U.S. at 321. In effect, the Landgate

decision restores the pre-First English rule in California that

"compensation is not required until the challenged regulation or

ordinance has been held excessive in an action for declaratory

relief or a writ of mandamus and the government has

nevertheless decided to continue the regulation in effect." /d.

at 309. Third, the California Supretae Court's holding that

Landgate did not have a viable takings claim (notwithstanding

(._.continued)

"normal" and held that the Commission "may be liable for a regulatory

taking even if it ultimately issues a permit" to plaintiff); City of Sz.

Petersburg v. Bowen, 675 So.2d 626 (Fla. App. 1996) (court held that

the invalidation of an ordinance “that effectively deprives the owner of

all economically viable use of that property” signifies that a taking has

occurred); and Steel v. Cape Corporation, 677 A.2d 634 (Md. Ct.

Spec. App. 1996) (court held that “when an owner has been called upon

to sacrifice all economically beneficial uses in the name of the common

good,” this constitutes a compensable taking).

the total denial of all use of its property) because the litigation

it was forced to pursue against the Commission concerned "pre-

conditions" of development is plainly inconsistent with the

principles discussed in Williamson County regarding the

"finality" of administrative decisions.

The questions presented are important because the answers

provided by the court below represent a fundamental shift in the

balance between the "freedom and flexibility of land-use

planners and governing bodies" (First English, supra, 482 U.S.

at 321), on the one hand, and the constitutional rights of

property owners, on the other. Specifically, if a deprivation of

all use of property resulting from a government agency's

erroneous decision (and the associated litigation to set aside the

decision) is not a regulatory taking because it falls within the

implied exception for "normal delays" in obtaining development

permits, the "exception" will swallow the "categorical rule" that

"total regulatory takings must be compensated." Lucas, supra,

505 U.S. at 1004.

The importance of the questions presented in this Petition

is underscored by the attention that this case has attracted from

a wide spectrum of organizations and public agencies

throughout California and the nation.” Not surprisingly, this

” Organizations and agencies filing amicus briefs with the California

Supreme Court include the California Chamber of Commerce; the

California Building Industry Association; the California Cattlemen's

Association; the California Forestry Association; the California Mining

Association; the Building Industry Legal Defense Foundation; Home

Builders Association of Northern California; Pacific Legal Foundation;

the Coastal Protection, Planning and Conservation League; National

Audubon Society; Natural Resources Defense Council; National

Wildlife Federation; Sierra Club; and the City and County of San

Francisco (joined by over 70 other California cities and counties).

case has been closely watched by governmental agencies

throughout California, which apparently view the California

Supreme Court's decision as providing a safe harbor from the

Fifth Amendment's Takings Clause.

The impacts of Landgate on other pending regulatory

takings cases in California are already being seen. See

California Coastal Commission v. Buckley, 98 Daily Journai

D.A.R. 7537 (July 10, 1998) (case transferred by the California

Supreme Court to the California Court of Appeal with

directions to vacate its decision and to reconsider the cause in

light of Landgate). This Petition should be granted in order to

send a message that reports about the untimely deaths of First

English and Lucas in California have been greatly exaggerated.

A. The Petition Should Be Granted Because it Presents

Important Questions Left Unanswered by this Court in

First English

In First English, this Court held that “where the

government's activities have already worked a taking of all use

of property, no subsequent action by the government can relieve

it of the duty to provide compensation for the period during

which the taking was effective." 482 U.S. at 321. In so ruling,

this Court expressly left unanswered "the quite different

questions that would arise in the case of normal delays in

obtaining building permits, changes in zoning ordinances,

variances, and the like which are not before us." Jd. (emphasis

added).

In his dissenting opinion in First English, Justice Stevens

rhetorically asked "[w]hether delays associated with a judicial

proceeding that terminates with a holding that a regulation was

not authorized by state law would be a ‘normal delay' or a

temporary taking ...." /d. at 334, n.10. The majority opinion

did not answer this question, and did not attempt to define the

phrase "normal delays."

In Landgate, the California Supreme Court adopted the

reasoning of Justice Stevens’ dissent and held that judicial

proceedings culminating with a holding that the Commission's

action was not authorized by state law amounted to a "normal

delay" within the meaning of First English and, therefore, do

not constitute a regulatory taking. App. 32a-33a. Thus, the

questions left unanswered by the majority in First English, and

the very question posed by Justice Stevens in his dissent, are

now squarely presented for review.

While the majority opinion in First English implied that

"normal delays" in the development process would not

constitute a temporary taking, this Court has yet to provide

guidance as to the meaning of this term. Consequently, in an

effort to circumvent the "just compensation" requirement for

temporary takings, government agencies are increasingly

invoking the "normal delay" defense when their actions are

challenged as an excessive interference with private property.

Indeed, the Landgate decision points the way -- raising serious

questions regarding the continued efficacy of the principles

announced by this Court in First English and Lucas.

B. The Questions Presented Are Important

It is established doctrine that "while property may be

regulated to a certain extent, if regulation goes too far it will be

recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 415 (1922). It is equally well established that mere

invalidation of the regulation, "though converting the taking

into a ‘temporary’ one, is not a sufficient remedy to meet the

demands of the Just Compensation Clause." First English,

supra, 482 U.S. at 319. Instead, under the “self-executing"

provisions of the Fifth Amendment, a government agency is

compelled to pay compensation for such "temporary takings."

Id. at 305.

The questions presented in this Petition are important

because the test articulated by the court below for determining

whether a "temporary taking" has occurred severely undermines

the rule in First English, leaving property owners without a

Constitutionally adequate remedy for excessive governmental

inference with private property rights. The new test also

vitiates the "categorical takings" rule of Lucas, requiring courts

to consider whether an agency's action, albeit erroneous and

confiscatory in effect, advances some legitimate governmental

interest.

1. The Test Created by the Court Below Effectively

Restores the "No Compensation" Rule Rejected by

this Court in First English

Nearly 20 years ago, the California Supreme Court held in

Agins v. Tiburon, 24 Cal.3d 266, 273 (1979), that a property

owner is not entitled to compensation for the "regulatory"

taking of his land unless and until the challenged regulation or

decision has been held unconstitutional in an action for

declaratory relief or a mandamus proceeding and the

government agency has nevertheless decided to continue the

regulation in effect. Under this rule, owners whose property

was subjected to excessive regulations were generally limited to

the remedy of invalidation of the offending regulation or

decision. Although the California Supreme Court's decision

was upheld on other grounds, this Court declined at that time to

reach the question of whether a state may constitutionally limit

the remedy for a taking to non-monetary relief. Agins v.

Tiburon, 447 U.S. 255, 263 (1980).

Seven years later, this Court addressed the question left

unanswered in Agins, i.e., whether government must pay

compensation to a landowner whose property has been taken

temporarily by the application of government regulations. In

First English, a landowner sought compensation for the

regulatory taking of its property based upon an allegation that

a Los Angeles County interim flood protection ordinance

deprived the owner of all use of its property. The California

Court of Appeal upheld the trial court's dismissal of this claim,

ruling that an owner whose property has been taken by a land-

use regulation may not recover damages for the time period

prior to the ultimate invalidation of the challenged regulation

(i.e. during litigation). This Court disagreed, and concluded

"that in these circumstances the Fifth and Fourteenth

Amendments to the United States Constitution would require

compensation for that period.” 482 U.S. at 307.

In First English, this Court also implied (but did not rule)

that “normal delays in obtaining building permits, changes in

zoning ordinances, variances, and the like" would not be

compensable. Furthermore, this Court did not address (but

impliedly rejected) the point raised by Justice Stevens in his

dissent that "[I]itigation challenging the validity of a land-use

restriction gives rise to a delay that is just as ‘normal’ as an

administrative procedure seeking a variance or an approval of

a controversial plan." Jd. at 334-35. In other words, while

clearly rejecting the Agins’ “no compensation" rule for

temporary regulatory takings, the door was left slightly ajar with

respect to the "normal" time period for obtaining development

permits.

Taking advantage of the ambiguities in the First English

decision, the court below has established a new rule that, if left

to stand, will all but eliminate the possibility of obtaining

compensation for temporary regulatory takings in California. In

Landgate, the California Supreme Court held, by a bare

majority (4-3), that litigation to set aside an erroneous (but not

"objectively unreasonable") decision by a governmental agency

concerning "pre-conditions" of development constitutes "normal

delay" in the development process and is therefore not

compensable, even where the erroneous decision denies all use

of the property. App. 25a-33a. Specifically, notwithstanding

the fact that the Commission's wrongful denial of the proposed

residence on Landgate's property resulted in the total denial of

all use of the property for a two-year period, the court below,

taking refuge in the "normal delay" language of First English,

left Landgate with the sole remedy of invalidation of the

Commission's illegal decision. In effect, this ruling resurrects

the Agins "no compensation" rule in California.

2. The Test Created By the Court Below Vitiates the

"Categorical Takings" Rule of Lucas

In Lucas, supra, this Court held that governmental

regulations that deny a property owner all economically viable

use of his or her land constitute one of the discrete categories

of regulatory deprivations that require compensation without

the usual case-specific inquiry into the public interest advanced

in support of the restraint.” 505 U.S. at 1016. Here, there is no

dispute that the Commission's decision was erroneous as a

matter of law and that it deprived Landgate all use of its

property for a two-year period while the validity of the decision

2 The Court described the reason for this rule as follows: "[T}he

fact that regulations that leave the owner of land without economically

beneficial or productive options for its use -- typically, as here, by

requiring land to be left substantially in its natural state -- carry with

them a heightened risk that private property is being pressed into some

form of public service under the guise of mitigating serious public

harm." Jd. at 1018.

was being contested in court. Pursuant to the “categorical

takings" rule of Lucas, a temporary regulatory taking has clearly

occurred and compensation is required.

The court below sidesteps this seemingly inescapable

conclusion by creating a new and potentially massive loophole

which will enable government agencies to escape the duty of

paying just compensation even when their erroneous decisions

result in the temporary denial of all use of private property.

Specifically, according to the Landgate majority, so long as an

agency's decision to deny a development permit can be

characterized as being based upon a "pre-condition" of

development and was not motivated by a "bad faith" intent to

deprive the owner of his property, the legality of the agency's

decision or its impact on the owner's ability to use the property

is completely irrelevant to the takings inquiry. In other words,

under the new Landgate test devised by the court below,

government agencies can render illegal decisions on

development permit applications resulting in the deprivation of

all use of the property with impunity.

3. The Test Created by the Court Below Invites

Regulatory Abuse

The potential for regulatory abuse is manifest. Under the

new Landgate test, a government agency can repeatedly deny

development permit applications on illegal, improper, or

pretextual grounds, without having to be concerned about

paying compensation for the temporary taking. In fact, an

agency could keep a property owner in perpetual motion by

forcing the owner to repeatedly file legal challenges to

successive decisions by the agency. If the first decision is struck

down, all the agency need do is render a new, and perhaps

equally erroneous decision. As the litigation treadmill spins, the

property remains vacant and unusable for any beneficial

purpose.”

As this Court observed in Nollan v. California Coastal

Commission, 483 U.S. 825, 841 (1987), compliance with the

Fifth Amendment's Property Clause "is more than an exercise in

cleverness and imagination." The Petition should be granted to

ensure that the California Supreme Court's imaginative reading

of First English does not vitiate the categorical rule of Lucas.

1Y In San Diego Gas & Electric Co. v. City of San Diego, 450 U.S.

621, 655 n.22 (1981), Justice Brennan (writing a nominal dissent that

had the substantive concurrence of five justices) made a similar

observation in an analogous context:

Invalidation [unaccompanied by payment of damages] hardly

prevents enactment of subsequent unconstitutional regulations

by the government entity. At the 1974 annual conference of

the National Institute of Municipal Law Officers in California,

a California City Attorney gave fellow City Attorneys the

following advice: IF ALL ELSE FAILS, MERELY AMEND

THE REGULATION AND START OVER AGAIN. [4] If

legal preventive maintenance does not work, and you still

receive a claim attacking the land use regulation, or if you try

the case and lose, don't worry about it. All is not lost. One of

the extra 'goodies' contained in the recent [California] Supreme

Court case of Selby Realty Co. v. City of San Buenaventura,

10 Cal.3d 110 (1973), appears to allow the City to change the

regulation in question, even after trial and judgment, make it

more reasonable, more restrictive, or whatever, and everybody

starts over again. [{] See how easy it is to be a City Attorney.

Sometimes you can lose the battle and still win the war. Good

luck.' Longtin, Avoiding and Defending Constitutional

Attacks on Land Use Regulations (Including Inverse

Condemnation), in 38B NIMLO Municipal Law Review 192-

93 (1975).

LNT ETE

4. The Test Created by the Court Below Unfairly

Forces Property Owners to Bear the Burden of

Governmental "Mistakes" in the Permitting Process

"It is axiomatic that the Fifth Amendment's just

compensation provision is ‘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."

First English, 482 U.S. at 318-19 (quoting Armstrong v. United

States, 364 U.S. 40, 49 (1960)). Here, the California Supreme

Court has turned this principle on its head by requiring

Landgate alone to bear the burden of the Commission's so-

called "mistake." Since the Commission maintains that it was

acting at all times in the public interest, fairness and justice

dictate that this burden should be borne by the public as a

whole.’

Finally, it should be noted that, at least in the Ninth Circuit,

a property owner may no longer pursue a claim for

compensation under the "substantive" aspects of the Fourteenth

Amendment's due process clause for excessive governmental

interference with property rights. Armendariz v. Penman, 75

1’ In Landgate, the majority suggests that the takings question

should not turn on whether or not the agency prevails in the litigation

because the "resolution of these cases often turns on the construction

and application of complex statutory schemes and results in significant

delays in the development process." App. 33a. In other words, the

court seems to suggest that mistakes by government agencies (and the

resulting litigation to correct these mistakes) are inevitable due to the

increasing complexity of land use regulations, and that the public

should not be held responsible for the consequences of these mistakes.

Of course, this argument overlooks the fact that it is the public, through

its representatives, that has created these "complex regulatory schemes"

in the first place, presumably for the benefit of the public as a whole.

F.3d 1311, 1325-1326 (9th Cir. 1996) ("The scope of

substantive due process does not extend to areas addressed by

other, more specific provisions of the Constitution"); Macri v.

King County, 126 F.3d 1125, 1128 (9th Cir. 1997) (dismissing

plaintiff's substantive due process claim in light of Armendariz).

Thus, as Justice Brown pointed out in her dissenting opinion

below, the Fifth Amendment stands as the “last lonely bulwark"

against regulatory abuse in the land development process --

making the questions presented more important than ever.

C. The Decision of the Court Below Is Erroneous and

Conflicts with this Court's Decisions in First English,

Williamson County, and Lucas

The California courts have a history of misconstruing or

ignoring the dictates of the Fifth Amendment. See First

English, supra, 482 U.S. at 311 ("[T]he California courts have

decided the compensation questions inconsistently with the

requirements of the Fifth Amendment"); Nollan v. California

Coastal Commission, supra, 483 U.S. at 839 ("[O]ur

conclusion on this point is consistent with the approach taken

by every other court that has considered this question, with the

exception of the California state courts"); Parks v. Watson, 716

F.2d 646, 652-53 (9th Cir. 1983) (characterizing California as

representing the "extreme" end of regulatory takings

jurisprudence). See also Coyle, Property Rights and the

Constitution (State University of New York 1993), p. 11

(California is “a near unanimous choice [among legal land use

scholars] as the state least likely to protect landowner rights").

In fact, of the twenty land use and regulatory takings decisions

rendered by this Court over the last 20 years, over one-half

involved cases from California. Clearly, the California courts

march to a different beat. Landgate is the latest case in point.”

1. The Conflict with First English

The decision below conflicts with First English because it

is based on, and adopts the reasoning of, the dissenting opinion

in that case. Justice Chin made this point succinctly in his

dissenting opinion below:

In his dissent in First English, Justice Stevens

articulated the precise argument on which the majority

relies here. Specifically, Justice Stevens asserted, as

does the majority here, that litigation over the validity of

a land-use restriction is simply a "normal delay" in the

permit approval process and therefore cannot give rise

2 On March 30, 1998, the Court granted review of a Ninth Circuit

regulatory takings case from California, Del Monte Dunes v. City of

Monterey, 95 F.3d 1422 (9th Cir. 1996). In Del Monte Dunes, the

City of Monterey repeatedly refused to grant development permits to

the owner of a 37.6-acre ocean front parcel, in spite of the fact that the

owner had complied with all of the city’s development conditions.

Although these facts are somewhat similar to those in Landgate, each

case presents entirely different legal questions for the Court’s review.

Specifically, Del Monte Dunes concerns the following: (1) whether

liability under 42 U.S.C. 1983 is a question of law or fact; (2) whether

a jury or court may “reweigh evidence concerning [the] reasonableness”

of the government’s decision not to approve a land use; and (3) whether

the “rough proportionality” standard of Dolan v. City of Tigard, 512

U.S. 374 (1994) can be applied to an inverse condemnation claim that

is based upon a regulatory denial. Landgate, on the other hand,

presents a question of first impression regarding a government agency's

liability for temporary takings during the pendency of litigation to set

aside its erroneous decision.

to a temporary taking. Justice Stevens stated: "The

Court's analysis ... appears to erect an artificial

distinction between 'normal delays’ and the delays

involved in obtaining a court declaration that the

regulation constitutes a taking. [§]] Jn my opinion, ...

[l]itigation challenging the validity of a land-use

restriction gives rise to a delay that is just as ‘normal’

as an administrative procedure seeking a variance or

an approval of a controversial plan." Thus, Justice

Stevens would have held that litigation over the validity

of a land-use regulation, like other "normal delays" in

the permit approval process, cannot give rise to a

temporary taking even if the regulation deprives the

property owner of all use of its property. The majority

of the high court considered Justice Steven's argument

and rejected it. Now, the same argument has found

new life in the majority opinion here. App. 38a

(citations omitted).

The holding of the court below that /itigation to set aside an

erroneous agency decision constitutes "normal delay" in

obtaining a development permit cannot be reconciled with First

English. Read in proper context, it is clear that the "normal

delay" language in First English was intended to exclude from

the compensation requirement, at most, the delays associated

with the administrative proceedings before the governmental

agency. Specifically, the phrase "normal delay" was qualified by

this Court as follows:

We ... do not deal with the quite different questions that

would arise in the case of normal delays in obtaining

building permits, changes in zoning ordinances,

variances, and the like which are not before us. 482

U.S. at 329 (emphasis added).

a |

The reference to building permits, zone changes, and

variances indicates that this Court was referring to the

administrative or legislative process leading up to a final

decision by the governmental agency to approve or deny a

development permit -- not subsequent judicial proceedings

made necessary by the agency's erroneous determinations. In

fact, it appears that Justice Stevens assumed that this was the

majority's intent when he stated that "[IJitigation challenging the

validity of a iand-use restriction gives rise to a delay that is just

as ‘norm as an administrative procedure seeking a variance or

an appcoval of a controversial plan." /d. at 334-35.

In support of its holding, the court below relied on Agins for

the proposition that litigation is simply part of the

"governmental decisionmaking process," and that "[mJere

fluctuations in value during the process of governmental

decisionmaking, absent extraordinary delay, are ‘incidents of

ownership.” App. 19a (quoting Agins, supra, 447 U.S. at 263,

n.9}. This reliance is misplaced. In First English, this Court

rejected this notion, holding that Agins "merely stand[s] for the

unexceptional proposition that the valuation of property which

has been taken must be calculated as of the time of the taking,

and that ... preliminary activity did not work a taking." 482

U.S. at 320.

Here, the Commission's decision cannot be fairly

characterized as "preliminary activity." As Justice Chin pointed

out in his dissenting opinion below, "the Commission flatly

denied the permit, and its decision was final in every sense."

App. 38a.

In summary, the court below misconstrued the reference to

"normal delays" in First English and improperly extended it to

include litigation. This conclusion is inconsistent with First

English because it leaves Landgate without a sufficient remedy

for the two-year period of time in which it was deprived all use

of its property. The Commission's decision worked a taking of

Landgate's property for a two-year period, and no subsequent

action by the Commission (whether in response to the court's

writ of mandate or otherwise) can relieve the Commission of its

duty to pay just compensation for this period.

2. The Conflict with Williamson County

In Williamson County, this Court held that a regulatory

takings claim "is not ripe until the government entity charged

with implementing the regulations has reached a final decision

regarding application of the regulations to the property at

issue." 473 U.S. at 186 (emphasis added). See also Suitum v.

Tahoe Regional Planning Agency, 117 S. Ct. 1659, 1665

(1997) (a "final and authoritative decision from the agency" is

"sufficient to satisfy the [final decision] prong of Williamson

County") (emphasis added). In Williamson County, this Court

explained that one of the reasons for this rule is that the factors

relevant to the takings inquiry "simply cannot be evaluated until

the administrative agency has arrived at a final, definitive

position regarding how it will apply the regulations at issue to

the particular land in question." 473 U.S. at 191. Thus, under

Williamson County, the "final decision" prong of the ripeness

test is satisfied once the government agency -- not the courts --

makes a final determination regarding how it will apply the

challenged regulations. See also MacDonald, Sommer & Frates

v. Yolo County, 477 U.S. 340, 348 (1986) (observing that the

question of whether a land use regulation went "too far"

depends, "in significant part, upon an analysis of the effect [of]

the Commission's application of the zoning ordinance and

subdivision regulations") (quoting Williamson County, supra,

473 U.S. at 199-200) (emphasis added).

i iii

The court below ignored this principle when it held that the

Commission's decision was “at most conditional," and that the

litigation brought by Landgate to set aside the Commission's

illegal action was simply part of the "normal delays" associated

with obtaining development permits. In effect, the court held

that there could be no taking until after the courts (as opposed

to the Commission) had determined how to apply the

regulations at issue. This holding confuses the "ripeness"

requirements of Williamson County with the doctrine of

exhaustion of remedies. As this Court explained in Williamson

County:

While the policies underlying the two concepts often

overlap, the finality requirement is concerned with

whether the initial decisionmaker has arrived at a

definitive position on the issue that inflicts an actual,

concrete injury, the exhaustion requirement generally

refers to administrative and judicial procedures by

which an injured party may seek review of an adverse

decision and obtain a remedy if the decision is found to

be unlawful or otherwise inappropriate. /d. at 193

(emphasis added).

This Court further explained that, while the state may

provide "procedures by which an aggrieved property owner may

seek a declaratory judgment regarding the validity of zoning and

planning actions taken by [government] authorities," such a

property owner "would not be required to resort to those

procedures" in order to ripen a takings claim because these

procedures are "clearly remedial." /d. (quoting Patsy v. Florida

Board of Regents, 457 U.S. 496 (1982)).

The Commission -- the "government entity charged with

implementing the regulations" at issue in this case -- reached a

final, definitive decision regarding how it would apply the

regulations to Landgate's lot in February 1991” Thus,

Landgate's takings claim became ripe the instant the

Commission rendered its decision. Under Williamson County,

the fact that Landgate had a judicial remedy in the form of a

petition for writ of mandate does not immunize the Commission

from takings liability.

In MacDonald, Sommer & Frates, supra, 477 U.S. at 351,

n.7, this Court expressly stated that "a property owner is of

course not required to resort to piecemeal litigation or

otherwise unfair procedures" in order to obtain a determination

of the extent of use that will be allowed. The majority opinion

below requires Landgate to do just that -- continually litigate to

determine the extent of allowable development on its lot.

LY It should be emphasized that the Commission's decision to deny

Landgate's application was based in large part on its erroncous

conclusion that Landgate's lot did not legally exist. Thus, unless

Landgate acquiesced in the Commission's illegal assertion of

jurisdiction of the lot line issue -- thereby waiving its right to seek

judicial review of the decision under County of Imperial v. McDougal,

19 Cal.3d 505 (1977) -- the Commission's decision left open no other

means of developing the property.

1Y This is not the first time the California courts have confused the

Williamson County "final decision" requirement with the exhaustion

doctrine. In the recent case of Lechuza Villas West v. California

Coastal Commission, 60 Cal.App.4th 218, 234-235 (1997), the court

concluded that the plaintiff's takings claim was not "final" within the

meaning of Williamson County (and therefore not ripe) because the

plaintiff had not yet “established” that it had a right to develop its

property under state law in separate litigation concluded before it

asserted its takings claim. The California Supreme Court denied review

of this decision on April 1, 1998. A petition for writ of certiorari was

filed with this Court on June 30, 1998 (case no. 98-30).

3. The Conflict with Lucas

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

(1992), this Court addressed the question of whether South

Carolina's 1988 Beachfront Management Act, which had the

effect of barring plaintiff from erecting any permanent habitable

structures on his two beachfront parcels, worked a taking of

private property under the Fifth and Fourteenth Amendments

requiring the payment of just compensation. After observing

that this Court has generally eschewed any "set formula" for

determining whether a regulation has "gone too far," this Court

described two discrete categories of regulatory action that are

“compensable without case-specific inquiry into the public

interest advanced in support of the restraint," as follows:

The first encompasses regulations that compel the

property owner to suffer a physical "invasion" of his

property ... The second situation in which we have

found categorical treatment appropriate is where

regulation denies all economically beneficial or

productive use of land. As we have said on numerous

occasions, the Fifth Amendment is violated when land-

use regulation "does not substantially advance legitimate

state interests or denies an owner economically viable

uses of his land." 505 U.S. at 1015-16 (quoting Agins,

supra, 447 U.S. at 260) (citations omitted).

The decision below is in direct conflict with this

"categorical" rule. There is no dispute that the Commission's

erroneous decision denied "all economically beneficial or

productive use" of Landgate's property for a two-year period.

Thus, under Lucas, inquiry into the public interest advanced in

support of the Commission's decision is unnecessary and

improper. Yet, that is exactly what the court has done below --

through the back door.

In Landgate, the court below fashioned a new and

unsupported “exception” to the categorical rule in Lucas. In

effect, the court held that litigation to set aside an agency's

decision to deny a development permit will be considered

"normal delay" if the decision, albeit erroneous, substantially

advances a legitimate interest. App. 32a. In other words, the

court took the "normal delay” language from First English, and

then grafted the “substantial advancement" test onto the

question of whether the delay was "normal."

The test devised by the court below was made out of whole

cloth. There is no authority whatsoever for this new

"exception" to the categorical rule of Lucas. Moreover, if

consideration of the governmental interest sought to be

advanced is irrelevant to the takings inquiry where all use had

been denied, as Lucas teaches, there is no rational reason to

consider these interests in the determination of whether a delay

was "normal" and therefore not a taking. In fact, as noted

above, the exception created by the court below would allow

government agencies to escape temporary takings liability in all

but those rare cases where the agency explicitly espouses its

intent to deny all use. An exception that swallows the rule is no

exception.

Finally, the "substantial advancement" test is inappropriate

and unworkable in this context because it will require courts to

inquire into the agency's "good faith" in rendering an illegal

decision.” Although the standard of review for determining

LY For example, the court below concluded that the Commission

rendered its erroneous decision in "good faith" because "Landgate has

not demonstrated that the development delay between February 1991

and February 1993 was due to anything other than a bona fide dispute

over the legality of Landgate's lot. Such delay is an incident of property

(continued...)

whether a dispute is “bona fide" is ostensibly an “objective”

one, in practice this standard will be nearly impossible to apply,

and will undoubtedly be rebuffed as improper inquiries into the

subjective motivations of governmental officials.

Even if it is assumed, arguendo, that the substantial

advancement test applies under these circumstances, it was not

satisfied in this case. To conclude that the Commission's illegal,

improper, and erroneous decision to deny Landgate's

application for a development permit "substantially advanced a

legitimate governmental interest" is contrary to both logic and

common sense. What legitimate interest is served by subjecting

a property owner to the Hobson's choice of either acquiescing

in the agency's illegal "assertion of jurisdiction” or foregoing all

beneficial use of the property? In an analogous context, this

Court has already concluded that such illegal "pre-conditions"

do not substantially advance any legitimate governmental

purpose and are therefore unconstitutional. See Nollan, supra,

483 U.S. at 839 ("We therefore find that the Commission's

imposition of the permit condition [requiring dedication of an

easement across plaintiff's lot] cannot be treated as an exercise

of its land-use power...").

12 continued)

ownership and not a taking of property." App. 34a. On the other hand,

the court below offered the following example of a “bad faith” dispute:

"{[A] government agency may not evade the takings clause by

fabricating a dispute over the legality of a lot, or by otherwise

arbitrarily imposing conditions on development in order to delay or

discourage that development." App. 3 la.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

BENJAMIN M. REZNIK

Counsel of Record

JOHN M. BOWMAN

JEFFER, MANGELS, BUTLER

& MARMARO LLP

2121 Avenue of the Stars

Tenth Floor

Los Angeles, California 90067

(310) 203-8080

Counsel for Petitioner

Dated: July 28, 1998

Fe Dik oh oie

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.