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

Supreme Court, US.

—~ FILED

e

No. 01-807 JAN 2 2009

In The |

Supreme Court of the United States

PHEASANT BRIDGE CORPORATION,

Petitioner,

vy.

TOWNSHIP OF WARREN,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court of New Jersey

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF PETITIONER

CHRISTOPHER G. SENIOR

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15™ STREET, NW

WASHINGTON, DC 20005

(202) 266-8200

Attorney for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ................... |

\

SUMMARY OF ARGUMENT ................................65. 2

REASONS FOR GRANTING THE WRIT ................. 3

I. THIS COURT’S DECISION IN FIRST ENGLISH

HAS BEEN APPLIED IN DIAMETRICALLY

OPPOSITE WAYS BY OTHER COURTS,

CREATING CONFUSION AND

CONSTITUTIONALLY SUSPECT OUTCOMES

WHICH MUST BE CORRECTED ........................ 3

il. IT IS THE IMPACT ON THE PROPERTY

OWNER AS THE RESULT OF A TAKING, NOT

THE IMPACT ON A GOVERNMENTAL ENTITY

WHICH IS REQUIRED TO PAY JUST

COMPENSATION, WHICH A COURT MUST

CONSIDER IN A TAKINGS CLAIM .................. 6

CIE Ie ovccecccevevccnsvesescsesceessesvesecovnssecsesssensecessrsess 9

TABLE OF AUTHORITIES

CASES Page(s)

Agins v. City of Tiburon, 447 U.S. 255 (1980).............0.. l

City of Monterey v. Del Monte Dunes at Monterey,

Ladd, SHB UD. GOT CUD) sc giesssscscsenesescecerrersaslmersvecreve 2

Dolan v. City of Tigard, 512 U.S. 374 (1994) 0.0... 2

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ......... passim

Fklorida Rock Industries v. U.S.,

45 Fed, Gy, SUG e siidvcsvisneensaindneee eens 7

John E. Long v. Borough of Ringwood,

Gi PF Gem. 26 STS C.IN.G. FOGG) ccscesveseresserssossrcssvvuveroveees 5

Lucas v. South Carolina Coastal Council,

SOD UE. Ce CUSED scctsssvicncrs einen 2

MacDonald, Sommer & Frates v. Yolo County,

BETES. FER GD tivicivicsiemsnelatninanen l

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

BEF A.B HOE COGES ertitsccinntiGhnsanndindean 5

Nollan v. California Coastal Comm'n,

SGD UD. Fe GID sesicintenvceissnn cueing l

a

“ee

Palazzolo v. Rhode Island, 533 US. ___,

oa anhsaceutoseronsenicventieveenesynsceet 2

Pheasant Bridge Corp. v. Township of Warren,

A, AMEE vvavccuecessvvecscersesennesves passim

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

RO AS le l

Suitum v. Tahoe Regional Planning Agency,

aa ecsacanieuivagndonusentessnonsinorneenten 2

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 216 F.3d 764, 778 (9th Cir. 2000), pet.

for reh'g and reh'g en banc denied,

228 F.3d 998 (9th Cir. 2000), cert. granted,

IED ss cecnencessiadonesescertennsierstovausivevereosenens 4

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) ..........ccceeeees |

Yee v. City of Escondido, 503 U.S. 519 (1992) .........06. 2

l

INTERESTS OF THE AMICUS CURIAE

The National Association of Home Builders (“NAHB”)

has received the parties’ written consent to file this brief as

amicus curiae in support of the petitioners. Letters of

consent have been filed with the Clerk of the Court.’

NAHB represents over 205,000 builder and associate

members throug).out the United States, including more than

1500 members in the state of New Jersey. Its members

include not only people and firms that construct and supply

single family homes, but also apartment, condominium,

multi-family, commercial and industrial builders, land

developers, and remodelers. It is the voice of the American

shelter industry. NAHB, therefore, is concerned with any

judicial decision that calls into question the remedies

available to its members under the U.S. Constitution and

federal statutes, particularly when such remedies are in any

way obstructed by a state court.

NAHB has been before the Court as an amicus curiae or

as “of counsel” to the landowner in a number of cases

involving the rights of property owners and the remedies

available to them when their rights are interfered with.

These include Agins v. City of Tiburon, 447 US. 255

(1980), San Diego Gas & Elec. Co. v. City of San Diego,

450 US. 621 (1981), Williamson County Regional

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985),

MacDonald, Sommer & Frates v. Yolo County, 477 US.

340 (1986), Nollan v. California Coastal Comm'n, 483

’ Pursuant to Rule 37.6 of this Court, amicus states that its

counsel authored this brief and amicus paid for it. This brief was

not written in whole or part by counsel for a party, and no one

other than amicus made a monetary contribution to its

preparation. 7

2

U.S. 825 (1987), Yee v. City of Escondido, 503 U.S. 519

(1992), Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992), Dolan v. City of Tigard, 512 U.S. 374 (1994),

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725

(1997), City of Monterey v. Del Monte Dunes at Monterey,

Lid., 526 U.S. 687 (1999), and Palazzolo v. Rhode Island,

533 US. ---, 121 S.Ct. 2448 (2001).

SUMMARY OF ARGUMENT

There now exists a sharp split in the interpretation of

this Court’s opinion in First English Evangelical Lutheran

Church v. County of Los Angeles - namely, whether the

decision applies to ordinances later ruled invalid. At least

two courts, the New Jersey Supreme Court and the U'S.

Court of Appeals for the Ninth Circuit, have come to

diametrically opposite positions on that point, creating legal

confusion.

In addition, the court below based its decision, in part,

on the impact a takings claim might have on a local

government, rather than focusing on the impact a taking has

on basic constitutional rights.

3

REASONS FOR GRANTING THE WRIT

THIS COURT’S DECISION IN FIRST

ENGLISH HAS BEEN APPLIED IN

DIAMETRICALLY OPPOSITE WAYS BY

OTHER COURTS, CREATING CONFUSION

AND CONSTITUTIONALLY SUSPECT

OUTCOMES WHICH MUST BE

CORRECTED

In finding that the Petitioner’s takings claim was not

worthy of legal review, the court below purported to

analyze this Court’s decision in First English. In that

‘analysis,” the New Jersey Supreme Court determined

that this Court’s language led to but one clear and simple

conclusion — First English did not apply to invalid

ordinances.

After first declaring that a facial taking could not be

established merely “as a result of the temporary

application of a zoning ordinance that is ultimately

declared invalid in a judicial challenge to the municipal

zoning authority,” Pheasant Bridge Corp. v. Township of

Warren, 777 A.2d 334, 343 (N.J. 2001), the court below

went further still. As the Petitioner’s case addressed “an

invalid ordinance in which government went beyond the

scope of its zoning power, rather than a valid ordinance

that effected a taking,” — which was the case in First

English — the legal principles developed by the US.

Supreme Court could not be applied at all. /d. at 344.

The New Jersey Supreme Court buttressed its

conclusion that First English did not apply to invalid

ordinances by quoting from this Court’s opinion itself.

“The Takings Clause ‘is designed not to limit the

governmental interference with property rights per se but

4

rather to secure compensation in the event of otherwise

proper interference amounting to a taking.’ First English

Evangelical Lutheran Church v. County of Los Angeles,

482 U.S. 304, 315 (1987).” Jd. at 343.

Without dissecting the unique legal logic which led

the New Jersey Supreme Court to remove from

consideration as a taking any invalid, illegal or improper

governmental action which impacts on property nghts, we

are left with one inescapable fact — this opinion

interpreting First English is now the law of the land in the

State of New Jersey.

Meanwhile, a continent away in California, the U.S.

Court of Appeals for the Ninth Circuit has also

interpreted First English — only this time reading the

decision as applying only to ordinances which are later

ruled invalid.

The First English Court very carefully

defined " ‘temporary’ regulatory takings [as]

those regulatory takings which are ultimately

invalidated by the courts." 482 US. at 310.

What is “temporary,” according to the Court's

definition, is not the regulation; rather, what

is “temporary” is the taking, which is

rendered temporary only when an ordinance

that effects a taking is struck down by a

court. In other words, a permanent

regulation leads to a “temporary " taking

when a court invalidates the ordinance after

the taking.

Vahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 216 F.3d 764, 778 (9 Cir.

2000), pet. for reh'g and reh'g en banc denied, 228

,. =2

5

F.3d 998 (9" Cir. 2000), cert. granted, 121 U.S. 2589

(2001)

While this decision was met with derision in a sharply

worded dissent on the petition for rehearing, it is the law

not merely in California, but throughout the entire Ninth

Circuit.

The legal conundrum is clear. The First English

decision has been interpreted to apply only to invalidated

ordinances on the West Coast, while in New Jersey, the

very same decision now never applies to an invalidated

ordinance. That other courts seem equally confused only

adds to the need for immediate resolution of this legal

crisis.”

Fortunately, this Court has already accepted the

Tahoe-Sierra case for review, though limiting argument

to the question of whether moratoria can constitute a

taking. By accepting this case for review as well, this

Court can further clarify the First English decision in the

context of the jurisdictional split which now exists, and

answer clearly the question at hand — whether an invalid

governmental action, temporary as it may be, can lead to a

temporary taking.

Such a question is far from academic, as both the New

Jersey and Ninth Circuit opinions underscore. Confusion

on the applicability of the First English temporary takings

? See, e.g., John E. Long v. Borough of Ringwood, 61 F.Supp.2d

273 (D.N.J. 1998)(First English applies “even if the government

authority later amends, withdraws, or invalidates the original

regulation or action that caused the taking.” /d. at 287); Miller

and Son Paving, Inc. v. ?*\emstead Township, 717 A. 2d 483

(Penn. 1998)(First Engiish does “not involve the invalidation of

an unconstitutional zoning ordinance.” Jd. at 486).

6

doctrine to governmental actions — both valid and invalid

alike — will lead to more decisions as far removed as

those in New Jersey and the Ninth Circuit, with the

primary victim being the Fifth Amendment protection of

property rights.

I. ITIS THE IMPACT ON THE PROPERTY AS

THE RESULT OF A TAKING, NOT THE

IMPACT ON A GOVERNMENTAL ENTITY

WHICH IS REQUIRED TO PAY JUST

COMPENSATION, WHICH A COURT MUST

CONSIDER IN A TAKINGS CLAIM

In reaching its decision to deny consideration of the

Petitioner’s takings claim, the New Jersey Supreme Court

purported not only to rely on precedent, but also on

practicality.

After arguing that property rights lost in an appeal of -

an invalid ordinance was no different than “regulatory

delay in securing a change in, or variance from, a zoning

ordinance,” Pheasant Bridge at 344, the New Jersey

Supreme Court went on to declare that holding a

government liable for a taking for an invalidated

ordinance was just plain dangerous.

To make a municipality pay just compensation in such

circumstances “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.” /d.

That the New Jersey Supreme Court expressed such

concer for governmental actors may be heart-warming to

municipal associations everywhere, but it grossly

muisinterprets the proper role of a court in a takings

analy

Flo

24(

Indeed, the very language of the First English

decision — in a passage which was apparently missed by

the New Jersey Supreme Court — notes that the protection

of constitutional rights, not the impact on governmental

7

sis.

The court’s role “is not to make policy

choices about the best ratio of regulation to

individual rights, but to answer the question

whether the public must pay for its

regulations in this case. If those regulations

take property the Constitution gives a simple

answer: yes it must. The Founders chose to

provide for just compensation, and this court

must determine whether the Takings Clause

is triggered by the facts before us.

rida Rock Industries v. U.S., 45 Fed. Cl. 21,

1999)

action, is at the heart of a takings claim.

We realize that even our present holding will

undoubtedly lessen to some extent the

freedom and flexibility of land-use planners

and governing bodies of municipal

corporations when enacting land-use

regulations. But such consequences

necessarily flow from any decision upholding

a claim of constitutional right; many of the

provisions of the Constitution are designed to

limit the flexibility and freedom of

governmental authorities, and the Just

Compensation Clause of the Fifth

Amendment is one of them.

First English, 482 U.S. at 321.

Even were there not such a significant difference of

interpretation between New Jersey and the Ninth Circuit

regarding the application of First English, the New Jersey

Supreme Court’s misplaced sympathy for governments

facing just compensation awards led it down a

constitutionally suspect pathway all by itself. To base

rejection of a takings claim, even in part, on the impacts

an award would have on the entity responsible for the

causing the taking in the first place is as legally

indefensible as refusing to try an alleged criminal because

the prosecutor though it would hurt her reputation.

The takings clause exists to protect citizens from an

overreaching government, not the government from

claims for just compensation, no matter how large. The

New Jersey Supreme Court forgot this central element of

our Constitution. This Court must remind its fellow

jurists how the Fifth Amendment is meant to be read.

CONCLUSION

For the reasons above, the National Association of

Home Builders urges this Court to grant Petitioner’s

Petition for Writ of Certiorari and to reverse the decision

of the New Jersey Supreme Court.

DATED: December 28, 2001

Respectfully submitted,

Christopher G. Senior _

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 ISTH STREET, NW

WASHINGTON, DC 20005

(202) 266-8200 ©