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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0832%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1077

## Text

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 ©

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0832%3A3. Public record. Not legal advice.