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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 876

## Text

OE

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,

v,

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

12

13

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

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19

20

21

ad

27

30

STS

Vv

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

vi
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

l
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

2

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...)

3

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.

4

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

5

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.

6

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.

© A careful reading of the Court of Appeal's decision reveals that its
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...)

—

7

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.

Rn

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

9

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...)

10

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).

11

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).

12

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

13

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"

14

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).

i5

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

16

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.

17

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

18

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

19

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.

20

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

21

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.

22

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 |

23

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

24

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

25

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

26

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).

a

27

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.

28

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...)

29

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.

30

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1341%3A1. Public record. Not legal advice.