Amicus Curiae Brief — Pheasant Bridge Corp. v. Township of Warren

SNR

_ \ Supreme Cours.

g | FILED |

No. 01-807 DEC 13 200; |

In the CLERK

Supreme Court of the United States—-—!

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PHEASANT BRIDGE CORPORATION,

Petitioner,

V.

THE TOWNSHIP OF WARREN,

Respondent.

4

On Petition for Writ of Certiorari to

the Supreme Court of New Jersey

—~>

BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

PHEASANT BRIDGE CORPORATION

+

J. DAVID BREEMER JAMES S. BURLING

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10360 Old Placerville Road 10360 Old Placerville Road,

Suite 100 Suite 100

Sacramento, California 95827 Sacramento, California 95827

Telephone: (916) 362-2833 Telephone: (916) 362-2833

Facsimile: (916) 362-2932 Facsimile: (916) 362-2932

Attorneys for Amicus Curiae

QUESTIONS PRESENTED

Where Petitioner successfully argued that the application

of the zoning ordinance to its property did not bear a substantial

relationship to its purposes, did the New Jersey Supreme Court

err in holding that Petitioner was not entitled, under this Court’s

decision in First English Evangelical Lutheran Church of

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

compensation for the period during which the ordinance

burdened its property?

TABLE OF CONTENTS

Page

CUES SENS FREON EE? och Cees Visueaeeuneens 1

oe ps 8b os) + Ee rere eae l

INTERES! OF AMICUS CURIAE .oscesceseesucsse ]

SEAT ENING OF Tite CARE ose ese eeek vas eae eee 2

SUMEMART UP ARGAINGBINE 250 sevcedveri cusses 2

PPAR TIGTTE ccc uccccdeuseys 0540 cee Rewert ere 4

WHETHER A LANDOWNER IS ENTITLED TO

COMPENSATION FOR THE EFFECTIVE PERIOD

OF A TEMPORARY REGULATION THAT FAILS

TO SUBSTANTIALLY ADVANCE A LEGITIMATE

STATE INTEREST IS AN IMPORTANT QUESTION

OF TAKINGS LAW ON WHICH THE LOWER

COURTS ARE IN CONFLICT WITH EACH OTHER

AES WEEE TEED RAPIIIRE So ec canesevssearevetae 4

I. The Decision Below Eviscerates the

Doctrine of Temporary Takings ................ 5

I]. The Decision Below Conflicts with the Decision

of This Court in First English and with the

Decisions of State and Federal Courts ............ 8

A. The Decision Below Conflicts with

ek PPP ee ee pe ere 8

B. The Decision Below Conflicts

with Important State Decisions ............. 10

C. The Decision Below Highlights a

Conflict Among Federal Courts ............ 13

GCERNCEARINEE 60525 v0tcnnees celveawenewir eres 16

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon,

ED bn ono aecedewetebedes 6.06 4-5,7

Chioffi v. City of Winooski,

rr ce cakekbeevedeesvneseees 6

City of Glenn Heights v.

Sheffield Development Company, Inc.

2001 Tex. App. LEXIS 7212 (Ct. App. 2001) .... 12, 16

City of Monterey v. Del Monte Dunes,

ee 5,9

Corrigan v. City of Scottsdale,

ES SE spc cvsevevsccenvaeass 12

Eberle v. Dane County Board of Adjustment,

595 N.W.2d 730 (Wis. 1999) ............-006- 10, 13

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

ee PE ONEEED oe bes cce cess e¥ae'ees 2, 4-6, 8-10

John E. Long, Inc. v. The Borough of Ringwood,

61 F. Supp. 2d 273 (D. N. J. 1998),

aff'd, 213 F.3d 628 (3d Cir. 2000) ............. 13-14

Landgate, Inc. v. California Coastal Commission,

ee CE civdeeeeesereseenverses 6

Loveladies Harbor, Inc. v. United States,

Cee ee ra, BOUED sccccccrcccvsvcneces 13

Lucas v. South Carolina Coastal Council,

Ee eT errr Terre rr rrr se 4

iV

TABLE OF AUTHORITIES—Continued

Page

Miller & Son Paving, Inc. v. Plumstead Township,

Pie. * 2 |. pee re ere 6

Nollan v. California Coastal Commission,

a NE 65444 sd deesueenbabraeucaes 1,4

Palazzolo v. Rhode Island,

See Bae EE sc oadidhocecsnessenevenaee l

Poirier v. Grand Blanc Ti ownship,

423 N.W.2d 351 (Mich. 1988) ............... 12-13

Rippley v. City of Lincoln,

S&F Pee Pr rrr ere reer es 13

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

ae ee ED nc sa aves eukeeeceusneoes 9,12

Schwartz v. City of Flint,

395 N.W.2d 678 (Mich. 1986). ............-..058. 12

Sea Cabins on the Ocean IV Homeowners

Association, Inc. v. City of North Myrtle Beach

eg Rm | PPP PTTTTerrrerire 6-7

Smith v. Town of Wolfeboro,

Ree grec) err err 6

Suitum v. Tahoe Regional Planning Agency,

Pe a SEP ENETD i ban eedundespedbioveusuaces l

Tahoe Sierra Preservation Council v.

Tahoe Regional Planning Agency,

Se Oh Gi SE hod es bawneesevenerees 1,4, 15

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency, :

216 F.3d 764 (9th Cir. 2000)... 0... cece cc ecees 14-15

V

TABLE OF AUTHORITIES—Continued

Page

Villas of Lake Jackson, Ltd. v. Leon County,

wie wm fie tS A) en ee 14

Wheeler v. City of Pleasant Grove,

ope & fi), te eR ere rrr rrr erry 14

Whitehead Oil Company v. City of Lincoln,

515 N.W.2d 401 (Neb. 1994) ................. 11,12

INTRODUCTION

Pacific Legal Foundation respectfully submits this brief

amicus curiae in support of the petition for certiorari filed by

Petitioner Pheasant Bridge Corporation on October 26, 2001.

All parties have consented to the filing of this brief. '

—_—

INTEREST OF AMICUS CURIAE

For more than 25 years, Amicus Pacific Legal Foundation

(PLF) has been litigating in support of the nghts of individuals

to make reasonable use of their private property. PLF attorneys

have been before this Court on three occasions representing

individuals whose right to use their property was unlawfully

denied by government agencies. See Palazzolo v. Rhode Island,

121 S. Ct. 2448 (2001); Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725 (1997); Nollan v. California Coastal

Commission, 483 U.S. 825 (1987). And PLF has participated

as amicus curiae in nearly every major real property takings

case heard by this Court in the last two decades, including

Tahoe Sierra Preservation Council v. Tahoe Regional Planning

Agency, 121 S. Ct. 2589 (2001), a case now pending in the

Court.

PLF believes that its public policy perspective and

litigation experience will provide an additional viewpoint on the

issues presented in this case. Specifically, PLF argues that the

New Jersey Supreme Court’s decision conflicts with this

' Letters evidencing the consent of all parties to the filing of this brief have

been filed with the Clerk of the Court pursuant to Court Rule 37.2(a).

In accordance with Rule 37.6, Amicus Curiae confirms that this brief

was not written by counsel for any party in this matter and that no person or

entity made a monetary contribution specifically for the preparation of this

brief.

Court’s decision in First English Evangelical Lutheran Church

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

with the decisions of a multitude of state and lower federal

courts. In particular, PLF argues that it is constitutionally

improper to deny compensation for a temporary taking when a

regulation does not substantially advance legitimate state

interests.

o—

STATEMENT OF THE CASE

Petitioner is the owner of approximately 28.98 acres of

vacant land in the Township of Warren. In December, 1993,

the Township placed Petitioners’ land within a newly created

environmental protection zone (EP-250 zone) and thereby

increased the minimum allowable lot size on the property from

one and one half acres to six acres. Petitioners’ land was so

classified despite the fact that the environmental concerns

giving rise to the EP-250 zone were not applicable to the

property. At the same time, other similarly situated properties

were permitted to remain under the previous zoning scheme.

Petitioners filed an action against the Township, asserting

that the EP-250 zone was invalid as applied to their property

and that it failed to substantially advance legitimate state

interests, thereby effecting a taking of private property without

just compensation. The trial court dismissed Petitioner’s claim

of invalidity and rejected the takings claim because Petitioner

did not argue that the ordinance deprived it of all use of land.

On appeal, the Appellate Division held that the trial court

should have addressed the claim of invalidity and the takings

claim under the substantial advancement test.

The trial court subsequently found that Petitioner had

suffered a taking because the EP-250 zone failed to

substantially advance a legitimate state interest as applied to

Petitioner’s land. The Appellate Division then reversed,

concluding that takings law called for compensation only when

a regulation denies a property owner substantially all economic

use of property. It also reversed the trial court’s judgment that

the EP-250 zone was invalid as applied to Pheasant Bridge’s

property.

When the case came before the New Jersey Supreme

Court, it agreed with the trial court that the EP-250 zoning was

arbitrary and invalid as applied to Pheasant Bridge’s property

and therefore reversed this aspect of the Appellate Division’s

judgment. Indeed, the court concluded that application of the

zoning scheme to Petitioner’s land did not advance its

underlying environmental purposes. However, it upheld the

Appellate Division’s dismissal of Petitioner’s takings claim.

This decision was based on the court’s assertion that

compensation is the proper remedy for a temporary regulatory

taking only when a challenged regulation is valid and denies all

economically beneficial use of property. The court also

implicitly adopted the conclusion that a taking does not occur

when a regulation does not Substantially advance legitimate

state interests. This ruling directly conflicts with the

established precedent of this Court on a question of federal

constitutional law.

+

SUMMARY OF ARGUMENT

This Court has stressed repeatedly that a regulatory taking

occurs when a regulation does not substantially advance a

legitimate state interest or when it denies an owner all

economically viable use. See Agins v. City of Tiburon, 447 U.S.

255,260 (1980); Nollan v. California Coastal Commission, 483

U.S. 825, 834 (1987); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1016 (1992). It is also well-

established that just compensation is the mandatory remedy for

a regulatory taking. See First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 321 (1987).

The decision below contravenes both of these settled principles

and thus perpetuates a conflict among lower state courts and

between state and federal courts. It also arises as this Court

prepares to settle a related conflict pertaining to the scope of

First English in Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, 121 S. Ct. 2589. The Court should

therefore grant the Petition, or in the alternative, grant and hold

this matter pending the issuance of the Court’s opinion in

Tahoe-Sierra Preservation Council.

—s

ARGUMENT

WHETHER A LANDOWNER IS ENTITLED

TO COMPENSATION FOR THE EFFECTIVE

PERIOD OF A TEMPORARY REGULATION

THAT FAILS TO SUBSTANTIALLY ADVANCE

A LEGITIMATE STATE INTEREST IS AN

IMPORTANT QUESTION OF TAKINGS LAW ON

WHICH THE LOWER COURTS ARE IN CONFLICT

WITH EACH OTHER AND WITH THIS COURT

Amicus will limit its discussion to a single critical issue,

whether compensation is the constitutional remedy for the

effective period of a regulation that fails to substantially

advance a legitimate state interest.’ It has been over twenty

years since this Court decided Agins v. Tiburon, and fourteen

years since the decision in First English, but there is still no

consensus among the lower courts on this important question.

While some courts conclude, like the New Jersey court, that

invalidation is the only relief available under such

circumstances, others reason that compensation is required from

the moment a regulation violates any substantive takings test.

As a result, the jurisdiction matters greatly in any dispute over

the applicability of the just compensation remedy. In some, a

property owner will be reimbursed for shouldering the burdens

of a restriction that is so irrational as to be declared illegal. In

others, she will find that she is required to bear them alone.

I. The Decision Below Eviscerates the

Doctrine of Temporary Takings

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,

? Petitioner Pheasant Bridge Corp. also asks this Court to decide whether “a

land use regulation that does not bear any real and substantial relationship

to the ostensible purposes of zoning, as applied to a particular property, fails

to substantially advance a legitimate state interest as to that property so as

to require the payment of just compensation under the Takings Clause of the

Fifth Amendment, without regard to the economic impact of the regulation.”

Amicus believes it well-established that a taking occurs where a

regulation fails to “substantially advance legitimate state interests” without

respect to economic impact factors, see Agins, 447 U.S. at 260 (a zoning

ordinance “effects a taking if the ordinance does not substantially advance

legitimate state interests or denies an owner economically viable use of

land”); City of Monterey v. Del Monte Dunes, 526 U.S. 687, 704 (1999)

(listing the numerous decisions of this Court that recognize the substantial

advancement test as an independent standard of takings liability), and

therefore chooses not to address this portion of the Petition for Certiorari.

the Court stressed that “invalidation” of an ordinance that

constitutes a taking “is not a sufficient remedy to meet the

demands of the Just Compensation Clause.” Jd. at 319. Rather,

the self-executing character of that clause required

compensation to be paid to the property owner aggrieved by a

regulatory taking, regardless of whether the taking turned out to

be of limited duration. The only exception was in the case of

‘normal delays in obtaining building permits, changes in zoning

ordinances, variances and the like.” /d. at 321.

Unfortunately, in some jurisdictions, courts have avoided

the thrust of First English. In particular, when faced with a

claim based on a deprivation of all use, a few courts expand the

“normal delay” exception to deny the temporary takings

remedy. See Smith v. Town of Wolfeboro, 615 A.2d 1252, 1258

(N.H. 1992) (stating “[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. Any decrease in the value of the subject property

that occurs during the pendency of governmental decision

making must be borne by the property owner’); Landgate, Inc.

v. California Coastal Commission, 953 P.2d 1188, 1203 (Cal.

1998) (concluding that “‘a judicial determination of the validity

of certain preconditions to development is a normal part of the

development process,” and thus could not give rise to a right to

a claim for compensation even when the “precondition” was

invalid and denied all use during the judicial proceedings).

On the other hand, when the underlying claim is based on

the substantial advancement standard, courts sometimes rule

that the compensatory remedy is limited to cases involving a

valid regulation that denies all use of property. Miller & Son

Paving, Inc. v. Plumstead Township, 717 A.2d 483, 486 (Pa.

1998) (holding that an invalid regulation did not give rise to a

temporary taking because it did not deny all use of property);

Chioffi v. City of Winooski, 676 A.2d 786, 790 (Vt. 1996)

7

(improper denial of variance did not cause a taking because

compensation remedy reserved for denials of all use); Sea

Cabins on the Ocean IV Homeowners Association, Inc. v. City

of North Myrtle Beach, 548 S.E.2d 595, 604 (S.C. 2001)

(stating that while a land owner “who successfully challenges

the applicability of a governmental regulation is likely to have

suffered some temporary harm during the process, the harm

does not give rise to a constitutional taking”’).

The decision of the New Jersey Supreme Court adopts

each of these rationales. In sum, the court below holds that

First English does not apply if (1) there is any use of property

left; (2) if the regulation is found to be invalid; or (3) if the

claim for compensation relates to a period during which the

regulation was being subjected to judicial challenge. It

therefore leaves open the possibility of compensation for a

temporary taking only where the government chooses to keep

a regulation in place that (1) denies all use of property and (2)

has been declared to constitute a taking in a judicial proceeding.

This framework effectively reinstates the Agins rule, overturned

in First English, that invalidation is a sufficient remedy for a

temporary taking.’ In practical terms, it requires individual

3 The decision below recalls Agins in its underlying reasoning as well as

in its holding. For example, in Agins, the California Supreme Court

observed:

[T}he utilization of an inverse condemnation remedy would have

a chilling effect upon the exercise of police regulatory powers at

a local level because the expenditure of public funds would be,

to some extent, within the power of the judiciary. “This threat of

unanticipated financial liability will intimidate legislative bodies

and will discourage the implementation of strict or innovative

planning measure in favor of measures which are less stringent,

more traditional, and fiscally safe.”

Agins v. City of Tiburon, 598 P.2d 25, 30 (1979).

Similarly, in the decision below, the New Jersey Supreme Court stated:

(continued...)

8

landowners to internalize the immense costs (including loss of

property value, litigation expenses, and lost profits) associated

with all arbitrary and irrational attempts to advance public goals

in the land use arena. This state of affairs cannot be squared

with this Court’s pronouncements or with the decisions of other

jurisdictions.

II. The Decision Below Conflicts with the Decision

of This Court in First English and with the

Decisions of State and Federal Courts

A. The Decision Below Conflicts with First English

Because the plaintiffs in First English claimed a denial of

all use of property, the compensatory principles set out in that

case were framed in the context of that claim. But the

compensatory remedy was not meant to be, and is not logically

limited to, any particular takings test. As Justice Stevens

acknowledged, the Court’s decision in First English simply

meant that “all ordinances which would constitute takings if

allowed to remain in effect permanently, necessarily also

constitute takings if they are in effect for only a limited period

of time.” First English, 482 U.S. at 322 (Stevens, J.,

dissenting). This principle was anticipated by Justice Brennan’s

> (...continued)

Ifsuch a distinction were accepted, it could have a chilling effect on land use

planning for the adoption of an invalid ordinance could prove financially

devastating to a municipality that was unsuccessful in its defense to a drawn-

out constitutional challenge.

Appendix to Petition for Writ of Certiorari (Pet. App.) at 17.

9

dissenting opinion in San Diego Gas & Electric Co. v. San

Diego, which stated that the government must “pay just

compensation for the period commencing on the date the

regulation first effected the ‘taking’ and ending on the date that

the government entity chooses to rescind or otherwise amend

the regulation.” 450 U.S. 621, 653 (1981) (Brennan, J.,

dissenting). Therefore, since it is well-established that a taking

results from a regulation that fails to advance a legitimate state

interest, temporary takings should logically arise under the

substantial advancement standard to the same degree that they

flow from a denial of all use of property.’ Further, the “normal

delay” exception is similarly narrow in both contexts. Although

Justice Stevens’ dissenting opinion in First English suggested

that it should encompass delay occasioned by resort to the

judicial process, see First English, 482 U.S. at 334 (Stevens, J.,

dissenting), this proposition was soundly rejected by the

majority. See id. at 319 (judicial invalidation of an excessive

ordinance after a period of litigation “is not a sufficient remedy

to meet the demands of the Just Compensation Clause”); see

: This proposition is consistent with the Court’s decision in City of

Monterey v. Del Monte Dunes, 526 U.S. 687. There, a jury found that the

City of Monterey was liable for compensatory damages for a seven year

period during which it repeatedly denied a landowner’s application to build

a residential development. 526 U.S. at 701. The jury reached its verdict

after being instructed that it could find a taking if the city’s action failed to

substantially advance a legitimate state interest or denied all use of property.

Id. at 701-02.

On appeal, the Court treated Del Monte Dunes’ claim as a “a claim for

a temporary regulatory taking.” Jd. at 704. It then stated that the jury’s

reliance on the substantial advancement standard was “consistent with our

previous general discussions of regulatory takings liability” and affirmed that

the City of Monterey could be held liable under that test for the period

during which it refused to approve the residential development. /d. at 704-

07. Though in dissent as to part of the Court’s opinion, Justices Souter,

O’Conner, Ginsburg and Breyer did not dispute the characterization of Del

Monte Dunes claim as “temporary” or the application of the substantial

advancement test to such a claim. /d. at 753 n.12 (Souter, J., dissenting).

10

also Eberle vy. Dane County Board of Adjustment, 595 N.W.2d

730, 742 n.25 (Wis. 1999) (First English “clearly considered

and rejected” the argument that ‘“‘when an agency’s erroneous

action is reversed by a court, there is no taking, because such

delay is just a part of the process of developing property”).

The decision of the New Jersey Supreme Court cannot be

reconciled with the principles articulated by this Court in First

English. While the First English Court declared that

“{iJnvalidation of the ordinance . . . is not a sufficient remedy

to meet the demands of the Just Compensation Clause,” First

English, 482 U.S. at 319, the court below denied that a

compensable taking occurs “as a result of the temporary

application of a zoning ordinance that is ultimately declared

invalid in a judicial challenge.” Pet. App. at 14. While First

English carefully limited the “normal delay” exception to

certain administrative processes, the court below ruled that

there is “no distinction justifying the need to provide for interim

monetary damages” between the sort of delays contemplated by

First English and for “delay occasioned by resort to judicial

processes to challenge application of a zoning ordinance to

one’s property.” Pet. App. at 16. Finally, while First English

addressed the takings remedy generally, 482 U.S. at 310-12, the

court below construed the compensatory remedy to apply only

to those takings claims based on one standard; the “denial of all

economically beneficial use” test. In light of these conflicts, it

is incumbent upon this Court to grant the petition to clarify the

scope of the compensatory remedy.

B. The Decision Below Conflicts

with Important State Decisions

Given the conflict with First English, it is not surprising

that the decision below also conflicts with the decisions of

several state courts. The Nebraska Supreme Court has, for

instance, clearly rejected the narrow temporary takings doctrine

adopted below. See Whitehead Oil Company v. City of Lincoin,

1]

515 N.W.2d 401 (Neb. 1994). In Whitehead Oil, the landowner

successfully challenged the validity of a zoning ordinance that

limited its property to office uses. 515 N.W.2d 390, 400 (Neb.

1994). The trial court then awarded damages for the five year

period of litigation during which the ordinance remained in

effect. Whitehead Oil, 515 N.W.2d at 404-05. On appeal, the

city argued that there could be no compensable temporary

taking under these circumstances, and thus that the damages

were in error. /d. at 407. The Nebraska Supreme Court

rejected this contention, concluding that the temporary takings

doctrine established in First English was applicable to

regulatory action that denied less than all use and, in particular,

to cases where the regulation failed to substantially advance a

legitimate state interest:

Our determination . . . that in changing the

applicable zoning designation the city acted not in

furtherance of a legitimate state interest but

arbitrarily and capriciously so as to deny Whitehead

Oil a use permit, compels our agreement with the

district court’s ruling that Whitehead Oil’s property

has been subjected to a taking under the federal

Constitution.

Id. at 408. It therefore upheld a damage award for the period

during which the invalid zoning was in effect, calculated as the

difference between the fair market value of the property as it

existed under zoning allowing development of a convenience

store and its value under the subsequent irrational zoning

scheme. /d. at 411-12.

Michigan courts have similarly relied on this Court’s

jurisprudence in determining that compensation is required

under the state constitution “for the period during which [a

substantial advancement] taking was effective.” Poirier v.

Grand Blanc Township, 423 N.W.2d 351, 354 (Mich. 1988);

accord Schwartz v. City of Flint, 395 N.W.2d 678, 687-88

12

(Mich. 1986). This rule operates without respect to whether the

underlying regulation denies all use of property. Thus, in

Poirer, the court granted compensation to a landowner whose

land was (irrationally) zoned to permit residential uses but not

a mobile home park. Poirier, 423 N.W.2d at 352, 355. In

Arizona, the state’s high court found Justice Brennan’s

dissenting opinion in San Diego Gas & Electric v. City of San

Diego, 450 U.S. 621 at 637-61 (Brennan, J., dissenting),

instructive in holding that a landowner was entitled to

compensation under the state constitution for the effective

period of an ordinance that was invalidated because it placed

some, but not all, of the claimant’s property in a conservation

zone. Corrigan v. City of Scottsdale, 720 P.2d 513, 515-18

(Ariz. 1986). Finally, a Texas appellate court recently held that

compensation was due for a one year period during which a

temporary building moratorium failed to advance legitimate

state interests. City of Glenn Heights v. Sheffield Development

Company, Inc., 2001 Tex. App. LEXIS 7212, *52-53 (Ct. App.

2001).

~ The decision of the New Jersey Supreme Court is patently

incompatible with the reasoning of these state courts. Unlike

the decision below, these cases acknowledge that the violation

of the substantial advancement takings test triggers the right to

compensation at the time the violation occurs. See, e.g.,

Whitehead Oil, 515 N.W.2d at 411. They thus recognize that

the compensatory remedy is a general remedy not dependent on

a denial of all use of property or the “validity” of an ordinance

at the time of enactment.’ Poirier, 423 N.W.2d at 353 (“The

* It is worth noting that, outside the “substantial advancement” context,

several state courts have relied on the Court’s jurisprudence for the general

proposition that compensation is the remedy for the effective period of a

zoning ordinance that is invalidated on takings grounds. See Eberle v. Dane

County Board of Adjustment, 595 N.W.2d at 743 (requiring compensation

for period during which an invalid zoning ordinance restricted access to

(continued...)

13

{First English] Court did not distinguish between takings

accomplished by the use of police power or by eminent domain.

The key consideration was whether there had been a taking.”’).

In contrast, the court below ruled that compensation is required

only when there is a prospective and complete denial of all use.

In essence, the decision below establishes compensation as a

constitutional rarity, one that is to be applied solely in the few

cases where government is foolish enough to impose draconian

restrictions in the face of judicial declarations that a taking is in

the offing. This is not, and should not, be the norm in state

courts.

C. The Decision Below Highlights a

Conflict Among Federal Courts

a

The decision below highlights an ongoing conflict among

the federal courts as to the remedy for a regulation that fails to

substantially advance legitimate state interests. On the one

hand, some federal courts hold that there is no right to just

compensation for the effective period of a land use restriction

that fails to substantially advance legitimate state interests

unless it also severely impacts the value of property. See

Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381, 389-90

(Cl. Ct. 1988) (stating that, under the substantial advancement

test, the “balancing of plaintiffs’ private interests and the

government’s public interests reveals a private interest much

more deserving of compensation,” but ultimately holding that

“this court cannot find a taking simply because there was no

substantial advancement of a legitimate state interest”); see also

John E. Long, Inc. v. The Borough of Ringwood, 61 F. Supp. 2d

273, 287 (D. N. J. 1998), aff'd, 213 F.3d 628 (3d Cir. 2000)

(declaring that a “temporary taking that denies the landowner all

> (...continued)

private property); Rippley v. City of Lincoln, 330 N.W.2d 505, 511 (1983)

(compensation due for “period between the date the regulation took effect

and the date it was rescinded”).

14

use of his or her property . . . requires compensation for the time

period of the taking”).

On the other hand are federal courts that properly grant the

compensatory remedy when a regulation is invalidated under

the substantial advancement test. The Eleventh Circuit, for

example, has explicitly endorsed the idea that there is a night to

compensation during the effective period of an invalidated

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

267, 270 (1 1th Cir. 1987); see also Villas of Lake Jackson, Ltd.

v. Leon County, 121 F.3d 610, 613 (1 1th Cir. 1997) (stating that

if a regulation “goes so far in diminishing the landowner’s

interests as to constitute a taking, just compensation may be

awarded running from the regulation’s effective date”). In

Wheeler, the City passed an ordinance that “outlawed

construction of apartment complexes” throughout the city

limits, including on plaintiff's land. Wheeler, 833 F.2d at 268.

The district court found, and a panel of the Fifth Circuit

subsequently agreed, that the city’s actions “bore no substantial

relationship to any legitimate police power interest,” and

therefore caused a taking. /d. The case was subsequently

remanded to the district court for a determination of damages,

but eventually returned to the newly-created Eleventh Circuit

after the district court failed to properly award compensation for

the period during which the invalidated ordinance was in effect.

Id, at 269. At that point, the court of appeals reiterated that “the

plaintiffs were entitled to compensation for the injury they

sustained as a result of the temporary taking.” Jd. at 270. The

court pointed to First English as vindicating its earlier

conclusion that compensation was required for the effective

period of an irrational ordinance. /d.

The Ninth Circuit has similarly determined that

compensation is the remedy for an invalidated permanent

confiscatory regulation. See Tahoe-Sierra Preservation Council

v. Tahoe Regional Planning Agency, 216 F.3d 764 (9th Cir.

2000). In Tahoe-Sierra, the court of appeals considered

aie

a

15

whether a temporary moratorium caused a taking. After

reviewing First English, the court stated: “[A] permanent

regulation leads to a temporary taking [requiring compensation]

when a court invalidates the ordinance after the taking.” /d. at

778 (italics in original; underline added). Thus, although the

court (incorrectly) held that an intentionally temporary

restriction could not rise to the level of a taking, its reasoning

clearly implies that compensation is due for the period between

enactment of a permanent regulation that violates the Court’s

takings standards and the judicial discovery of such a violation.

This Court has, of course, granted certiorari in Tahoe-

Sierra to determine “[w]hether the Court of Appeals [for the

Ninth Circuit] properly determined that a temporary

moratorium on land development does not constitute a taking

of property requiring compensation under the Takings Clause

of the United States Constitution.” 121 S. Ct. 2589. Though it

is fairly narrow, this question will require this Court to grapple

with the scope of the temporary takings doctrine and may

compel it to decide whether compensation is due from the

moment a temporary or permanent regulation contravenes the

Court’s basic takings rules. As a result, Tahoe-Sierra

implicates the fundamental issue underlying the decision below:

Does implementation of a regulation that is infirm under a

traditional takings test trigger the compensatory remedy?

As they now stand, the decisions of the Ninth and

Eleventh Circuits cannot be reconciled with the decision below.

The federal decisions hold that compensation must be paid for

the effective period of a “permanent” regulation that is

invalidated on takings grounds, while the court below holds that

monetary relief is unavailable in these circumstances. Pet. App.

at 14, 20. Neither of these positions represents a fully correct

application of the temporary takings doctrine, which is best

understood as applying the compensatory remedy to all

regulations, whether temporary or permanent, that fail the

Court’s substantive takings tests. See, e.g., City of Glenn

16

Heights, 2001 Tex. App. LEXIS 7212 at *52-53 (compensation

required for effective period of temporary moratorium that did

not substantially advance legitimate state interests).

Nevertheless, they aptly illustrate the confusion prevalent in the

lower courts over the scope of the temporary takings remedy as

articulated in First English.

In agreeing to review the Ninth Circuit’s decision in

Tahoe-Sierra, the Court has positioned itself to resolve this

confusion. Thus, while the manifest conflict between the

decision below and the decisions of other state and federal

courts, not to mention First English, warrants an outright grant

of review under Rules 10(b) and 10(c), it would be eminently

appropriate for this Court to grant and hold the Petition until

Tahoe-Sierra is decided, vacate the judgment below, and

remand the case for further consideration in light of Tahoe-

Sierra.

+

CONCLUSION

The Petition for Wnt of Certiorari should be granted.

DATED: December, 2001.

Respectfully submitted,

J. DAVID BREEMER JAMES S. BURLING

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10360 Old Placerville Road 10360 Old Placerville Road,

Suite 100 Suite 100

Sacramento, California 95827 Sacramento, California 95827

Telephone: (916) 362-2833 Telephone: (916) 362-2833

Facsimile: (916) 362-2932 Facsimile: (916) 362-2932

Attomeys for Amicus Curiae