Petition for Writ of Certiorari — Cole v. Santa Barbara County

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011778 JN -5 2002

No. OPFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

JOSEPH L. COLE,

TRUSTEE OF THE STANFORD FARMS TRUST,

Petitioner,

COUNTY OF SANTA BARBARA ef al.,

Respondents.

Petition for a Writ of Certiorari

to the California Supreme Court

PETITION FOR A WRIT OF CERTIORARI

THEODORE N. MILLER CARTER G. PHILLIPS*

ANNE MAYER TURK ; JOSEPH R. GUERRA

SIDLEY AUSTIN BROWN & SIDLEY AUSTIN BROWN &

WOOD LLP WOOD LLP

555 West Fifth Street 1501 K Street, N.W.

Suite 4000 Washington, D.C. 20005

Los Angeles, California 90013 (202) 736-8000

(213) 896-6641

Counsel for Petitioner

June 3, 2002 * Counsel of Record

POLE Rn ACUTE ARAN RONEN RI I NEAR I sR a

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

UB Px

QUESTION PRESENTED

Whether a county may take a permanent easement over

private property, and thereby deprive the owner of the right to

exclude, without satisfying either the nexus or proportionality

requirements of Nollan v. California Coastal Commission,

483 U.S. 825 (1987) or Dolan v. City of Tigard, 512 U.S. 374

(1994), and without paying just compensation, solely because

two decades earlier the State was able to “extort” from a prior

| owner an offer to dedicate that easement as a condition of

obtaining a building permit?

(i)

PARTIES TO THE PROCEEDING

In addition to the parties stated in the caption, the Board of

Supervisors of the County of Santa Barbara is a respondent in

this proceeding.

TABLE OF CONTENTS

QUESTION PRESENTED .......

PARTIES TO THE PROCEEDING.

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ..................

STATEMENT OF THE CASE..............

REASONS FOR GRANTING THE PETITION |

IIL.

THE COUNTY’S ACCEPTANCE OF THE

OFFER TO DEDICATE WAS AN UNCON-

STITUTIONAL TAKING OF PROPERTY .........

. NO CHALLENGE TO A DEPRIVATION OF

THE TRUST’S RIGHT TO USE THE

PROPERTY AND TO EXCLUDE OTHERS

FROM IT WAS “RIPE” IN 1980....000000.00...00.0000...

UNLESS THIS COURT GRANTS REVIEW,

HUNDREDS OF OTHER UNCONSTITU-

TIONAL DEPRIVATIONS WILL ESCAPE

REY MEO oo ooicssceccsussson<canseversacennsessances

i Fake ia ns ca tillnsls Xia sbaapin lnadvianwcseses

(iii)

TABLE OF AUTHORITIES

CASES Page

Agins v. Tiburon, 598 P.2d 25 (Cal. 1979), aff'd

on other grounds, 447 US. 255 (1980),

overruled by First English Evangelical

Lutheran Church v. County of Los Angeles, 482

RPK SIT cassia cunlaskvtenntasiccustcievadaizacens 17

Baldwin v. City of Los Angeles, 83 Cal. Rptr. 2d

Pe A, ME HOI nace ycieycaciconaneseiaccoieieadans 12

City of Santa Clara v. Ivancovich, 118 P.2d 303

a ee PU caidas peeetetcnea Kas cgeenipieiccans 12

Copeland v. City of Oakland, 23 Cal. Rptr. 2d

Pi, > ie GS. | Ren eeenen eel mine 13

Danforth vy. United States, 308 U.S. 271 (1939).... 16

Dolan v. City of Tigard, 512 U.S. 374 (1994) ....... 5

First English Evangelical Lutheran Church v.

County of Los Angeles, Cal., 482 U.S. 304

TD is eintiaetataacastne Maine Cucladianstincopamnaantin 15, 17, 18

Grupe v. California Coastal Comm’n, 212 Cal.

Rptr. 578 (Cal. Ct. App. 1985)............ 3, 12, 13, 14, 15

Kaiser Aetna v. United States, 444 US. 164

Le 5, EC ER ee ART TERT MCR oe 13

Nollan v. California Coastal Comm'n, 483 U.S.

DE: , RN CO OTD ee PE Ptr 2, 13

Palazzolo v. Rhode Island, 533 US. 606

I i 8, 10, 15

Patrick Media Group, Inc. v. California Coastal

Comm'n, 11 Cal. Rptr. 2d 824 (Cal. Ct. App.

People v. Williams, 2 P. 393 (Cal. 1884)............... 12

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

GO US. SES Ce ovens 1]

TABLE OF AUTHORITIES - continued

Page

Whalers’ Village Club v. California Coastal

Comm'n, 220 Cal. Rptr. 2 (Cal. Ct. App.

PD 5s ehstniothetsncccsibesadctabel one eae tee 3, 12, 14

Williamson County Reg'l Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)....000000....... 15

CONSTITUTION AND STATUTES

<7, CA COST re a l

WO titnaree e l

Te Slee: © Ss cient oe eee 6, 18

Cal. Pub. Res. Code § 3080200000000. 18

Serene 5

FU Spare hie eae 5

OTHER AUTHORITY

James Rainey, Faster Action by Agencies Is

Preserving Beach Access, L.A. Times, July 10,

FS PERT SED TET HR em ACP HG CAL 18

PETITION FOR A WRIT OF CERTIORARI

Petitioner Joseph L. Cole, Trustee of the Stanford Farms

Trust, respectfully petitions for a writ of certiorari to review

the judgment of the Supreme Court of the State of California

OPINIONS BELOW

The California Supreme Court order denying the Petition

for Review and Publication request is not reported. Appendix

to the Petition of Certiorari (“Pet. App.”) 20a. The opinion of

the Court of Appeal for the State of California, Second

Appellate District, Division Six, affirming the judgment of

the Superior Court of the State of California for the County of

Santa Barbara is not reported, but can be found at 2001 WL

1613856. Pet. App. la-l6a. The opinion of the Superior

Court of the State of California for the County of Santa

Barbara sustaining respondent’s demurrer to petitioner’s

constitutional claims without leave to amend and granting

respondent’s motion to dismiss petitioner's claim under the

California Environmental Quality Act is not published. Pet

App. 17a-19a

JURISDICTION

The judgment of the California Supreme Court was entered

on March 13, 2002. This Court has jurisdiction under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The federal constitutional provisions at issue in this matter

are the Fifth and Fourteenth Amendments to the United States

Constitution. The Fifth Amendment provides in part: “[NJor

shall private property be taken for public use, without just

compensation.” The Fourteenth Amendment provides in part:

1 af oe a

“[N]or shall any State deprive any person of life, liberty, or

property, without due process of law.”

STATEMENT OF THE CASE

1. At its core, this case poses a simple and important

question: can local governments evade the restrictions on

compelled dedication of public access easements that this

Court announced in WNollan vy. California Coastal

Commission, 483 U.S. 825 (1987), through the expedient of

taking private property in two discrete steps, neither of which

may be challenged as an unconstitutional taking? In Nollan,

this Court condemned as “‘an out-and-out plan of extortion”

a decision in which the California Coastal Commission

approved a building permit on the condition that the property

owner grant the public an easement that was wholly unrelated

to any adverse impacts caused by the proposed construction

project. /d at 837. This case arises from a 1980 Coastal

Commission permit decision that employed a slightly

different, and far more typical, form of extortion: as a

condition of approving a 570 square-foot addition, the Coastal

Commission required petitioner’s predecessor-in-interest not

to convey an access easement outright, but to record an offer

to dedicate a 77,000 square-foot easement — an offer that

would expire in 21 years unless accepted by another local

governmental entity.

In the decision below, the lower court ruled that the County

of Santa Barbara was free to accept this coerced offer to

dedicate without paying any compensation for the resulting

easement and without having to demonstrate any nexus

between any alleged adverse impacts caused by the owner’s

construction project and the easement she was required to

offer. According to the lower court, the prior property

owner's failure to bring a takings challenge to the 1980

permit decision — a decision that did not itself deprive the

prior property owner of any possessory interest in her

property, and did not compel such a deprivation at any time

thereafter — barred petitioner’s prompt challenge to the legally

distinct governmental action of the County, which accepted

the coerced offer to dedicate in 2000 and thereby first stripped

petitioner of the fundamental right to exclude others from the

Trust’s beachfront property. Unless this Court grants review

of the decision below, other local governments in California

will be free to accept literally hundreds of soon-to-expire

offers to dedicate easements, all of which were coerced in

blatant violation of the restrictions announced in Nollan, and

all of which can now be accepted, under the decision below,

without satisfying the commands of the Fifth Amendment.

2. In the late 1970s, the Coastal Commission

implemented a policy of refusing to issue building permits

unless coastal property owners recorded offers to dedicate

easements over their beachfront to the public. These offers

were temporary in nature; if not accepted by a local agency

within 21 years, they would expire. Conversely, acceptance

conveyed actual title to the public access easement to the

accepting agency in perpetuity.

Acceptance of such offers, however, was by no means

certain. An accepting entity had to ensure that it was able to

assume the often significant liabilities and maintenance costs

that attend ownership of public beach property. Whalers’ -

Village Club v. California Coastal Comm’n, 220 Cal. Rptr. 2,

14 (Cal. Ct. App. 1985). In addition, because local

governments would not accept an easement that the public

could not reach (and thus could not use), the acceptance of an

offer to dedicate often depended on whether the Coastal

Commission could extort offers to dedicate easements over

neighboring properties, an event that depended, in turn, on

whether the owners of such neighboring property would seek

construction permits from the Commission. See generally

Grupe v. California Coastal Comm'n, 212 Cal. Rptr. 578,

592, 601-02 (Cal. Ct. App. 1985).

In 1980, Francice Bushkin. applied for a _ coastal

development permit to build an addition to an existing

guesthouse on her a 25-acre parcel of property in Santa

Barbara. Pet. App. la. The proposed addition was to consist

of a 196-square-foot sunroom and a 374-square-foot deck, or

a total of 570 square feet. Jd Although these improvements

were to be built 920 feet inland from a 60-foot coastal bluff,

on property accessible only by a private road, the Coastal

Commission refused to grant Bushkin a permit unless she

agreed to record an offer to dedicate a 77,000 square-foot

public lateral easement across her beachfront property (i.e., an

easement running parallel to the ocean). See id. at la-2a.

The Commission made no finding that the proposed addition

had any impact on public access to the beach, nor could it

have done so: the modest 570 square-foot improvements to

the property were not visible from any public roadway or

from any beach.

Bushkin accepted the building permit, built the sunroom

and deck, and recorded an offer to dedicate the easement in

May 1982. The offer to dedicate was to expire unless it was

accepted by a public agency within 21 years of its

recordation. The Stanford Farms Trust acquired the Bushkin

property, subject to the offer to dedicate, in 1995, eight years

after this Court handed down its decision in Nollan.

By the late 1990s, the Commission had collected over

1,000 offers to dedicate public easements across private

coastal property, but very few, if any, had been accepted.

Realizing that hundreds of outstanding offers to dedicate

would soon expire, the Coastal Commission began urging

local governments to expedite the acceptance process for all

offers pending in their respective jurisdictions. On October 6,

1998, the County of Santa Barbara conducted a public hearing

to consider whether to accept 72 outstanding offers to

dedicate easements over coastal property located in the

County, including the offer to dedicate recorded by Bushkin.

The Trustee for the Stanford Farms Trust appeared at the

hearing and objected to the proposed acceptance of the offer

to dedicate an easement over the Trust’s property on the

grounds that acceptance would violate the requirement, set

forth in Nollan and in this Court’s subsequent decision in

Dolan v. City of Tigard, 512 U.S. 374, 391 (1994), that a

compelled easement must be roughly proportionate to the

nature and extent of any adverse impact caused by the

underlying construction project. The County decided to delay

action on 26 offers to dedicate, including the offer to dedicate

affecting the Trust’s property.

On October 16, 1998, the Trust recorded a Notice of

Revocation and/or Rescission of Offer to Dedicate Public

Access Easement with the Santa Barbara Recorder’s Office.

The Notice stated that the offer to dedicate was revoked and

rescinded on the basis of Nollan and Dolan. The Notice was

recorded to give effective legal notice to all interested parties

of the Trust’s claim that the offer to dedicate was invalid after

Nollan, and that the Trust therefore was entitled to rescind the

offer to dedicate. On October 16, 1998, the day the Notice

was recorded, the Trust’s attorneys sent the Notice to the

County, advising the County that the Trust had revoked the

offer. Pet. App. 3a.

On March 15, 1999, the Coastal Commission issued a

“cease and desist” order, directing the Trust to cancel the

Notice of Revocation and to refrain from engaging in any

further activities that would be inconsistent with the

previously issued permit. Pet. App. 3a. This order exposes

petitioner to civil penalties of up to $6,000 a day for failure to

comply. In addition, petitioner is exposed to civil penalties of

up to $15,000 a day for failure to comply with the original

permit condition. See Cal. Pub. Res. Code §§ 308216 &

30820(b). In April 1999, thie Trust filed a complaint against

the Commission, seeking declaratory relief, rescission of the

irrevocable offer to dedicate, and a writ of mandamus. Pet.

App. 3a.

While that action was pending,’ the County moved ahead

with its efforts to accept the offer to dedicate that the Coastal

Commission had extracted from Bushkin. On February 15,

2000, the County adopted a resolution accepting the lateral

easement across the entire beachfront of the Trust’s property.

In so doing, the County conducted a substantive review of the

proposal to accept the outstanding offers to dedicate within its

jurisdiction, but refused to consider whether acceptance

would violate the Trust’s constitutional rights in light of

Nollan and Dolan. The County made no effort to show that

its acquisition of the easement satisfied the nexus and

proportionality requirements of the Fifth Amendment, and

instead simply recorded its acceptance of the offer to dedicate

on March 23, 2000.

On April 17, 2000, fewer than 30 days after the County

accepted the offer to dedicate, petitioner filed this action

against the County. The complaint, as amended, included

claims for redress under 42 U.S.C. § 1983 for violations of

substantive and procedural due process and equal protection,

and a request for a declaration under § 1983 and the

California Code of Civil Procedure that acceptance of the

offer to dedicate violated the Fifth and Fourteenth

Amendments of the United States Constitution.

'In January 2000, after petitioner's suit against the Coastal

Commission was transferred from Los Angeles County Superior Court,

the San Francisco County Superior Court sustained the Commission’s

demurrer to petitioner’s first two causes of action. Petitioner filed a writ

of mandate in the Court of Appeal seeking to set aside the order sustaining

the demurrer, but the writ was denied. Thereafter, he filed a motion

seeking to strike the Coastal Commission’s cross-complaint as a Strategic

Lawsuit Against Public Participation under the California Code of Civil

Procedure § 425.16, and that motion was denied, as was the subsequent

petition for wmit filed in the Court of Appeal. Petitioner’s lawsuit against

the Coastal Commission, which does not give rise to this petition, is still

pending in the San Francisco Superior Court.

The County filed a demurrer and a motion to dismiss.

Notably, the County did not contend that its acceptance of the

offer was lawful under Nollan and Dolan. Instead, the

County alleged that petitioner’s challenge was an untimely

and improper collateral attack on the original permit

condition and was thus barred by principles of res judicata

and waiver. Relying on § 30801 of the California Public

Resources Code, which governs judicial review of Coastal

Commission decisions, the County argued that the taking

challenge petitioner asserted could only have been brought

within 60 days of the Coastal Commission’s original permit

decision in 1980. The County further argued that the Trust

lacked standing as a subsequent owner that had purchased the

property after the easement had been irrevocably conveyed.

In opposition, petitioner noted that the complaint did not

challenge the actions of the Coastal Commission or the

original permit condition, but instead challenged the County’s

wholly separate and legally distinct action of accepting the

coerced offer to dedicate. Petitioner noted that this challenge

to the County’s actions was timely under section 30802 of the

Public Resources Code, which provides for judicial review of

decisions and actions of local governments implementing

certified local coastal programs, because the County did not

take final action to acquire the easement until March 2000.

Petitioner also argued that his challenge was timely under 42

U.S.C. § 1983. Nevertheless, on December 13, 2000, the

Superior Court sustained the demurrer without leave to

amend.”

3. The Court of Appeal affirmed that judgment in an

unpublished opinion filed on December 17, 2001. The Court

of Appeal did not dispute petitioner’s showing that, after the

* The Superior Court also granted the County’s motion to dismiss

petitioner’s claim under the California Environmental Quality Act.

Although petitioner pursued that claim in his appeals below, his state law

claim is not subject to review in this Court.

Coastal Commission’s 1980 permit decision, the Trust had

retained valuable property rights in the portion of the land

subject to the offer to dedicate, and that those rights were not

extinguished until the County accepted the offer in 2000.

Instead, the court adopted the County’s argument that any

challenge to the County’s acceptance of the offer to dedicate

was an impermissible collateral attack on the 1980 permit

itself. Noting that Bushkin had failed to challenge the permit

decision by filing a petition for a writ of administrative

mandate under Public Resources Code § 30801, Pet. App. 7a,

the court concluded that the Commission’s permit decision,

and the offer to dedicate that it compelled, were “immune

from collateral attack and that the causes of action set forth in

the trustee’s amended complaint are barred by the doctrines

of res judicata and waiver.” /d at lla. The court reasoned

that “[t]he validity of the permit condition underlies all of the

causes of action alleged in the trustee’s amended complaint,”

and that petitioner’s claims “are derived from and dependent

upon the original permit condition the predecessor in interest

failed to timely challenge.” /d. at 12a. The court concluded

that “[t]o allow the instant challenge to the permit condition

would circumvent the system of review provided under Code

of Civil Procedure section 1094.5.” Jd The court did not

address petitioner’s contentions that the challenge was timely

under both California Public Resource Code § 30802 and 42

U.S.C. § 1983.

The court also dismissed petitioner’s contention that a

takings claim seeking compensation for the loss of the right to

exclude others was not ripe until the County accepted the

offer to dedicate. Petitioner, citing Palazzolo v. Rhode

Island, 533 U.S. 606 (2001), argued that no governmental

entity had reached a final decision as to the disposition of the

Trust’s property until the County chose to accept the offer to

dedicate. In addition, petitioner noted that the County itself

had admitted that no easement was created by the offer to

dedicate — an admission that was wholly inconsistent with any

contention that the Trust’s taking claim was ripe in 1980.

Finally, petitioner noted that the County’s ripeness theory

would lead to undeserved windfalls: an original property

owner would be entitled to recover compensation for the full

value of a property loss that might never come to pass if the

offer to dedicate expired without acceptance, or, as actually

happened here, might be suffered only by a subsequent

property owner. Failing to address these arguments, the court

below dismissed the Trust’s ripeness arguments on the ground

that Palazzolo “does not address the situation... where the

predecessor in interest acquiesced in the restriction and

accepted the benefits.” Pet. App. 14a.

Petitioner filed a Petition for Review in the Supreme Court

of the State of California on January 25, 2002. On March 13,

2002, the California Supreme Court denied the Petition for

Review.

REASONS FOR GRANTING THE PETITION

In the decision below, the court of appeal adopted a

procedural bar that shields from review, and _ thereby

effectively sanctions, flagrant evasions of the constitutional

restrictions this Court has placed on the use of local zoning

powers to take private property. That procedural bar allowed

the County of Santa Barbara to take a 77,000 square-foot

easement that, in plain contravention of this Court’s holdings,

is wildly disproportionate to the construction project to which

the easement is tied, and for which the County will never pay

a penny in compensation. The California Coastal

Commission, moreover, has made clear its determination to

preserve, by whatever means necessary, “the vitality of the

many unaccepted offers of dedication” that it has previously

coerced, and to encourage other local governmental bodies to

accept as many of these soon-to-expire offers as possible.

Amicus Curiae Brief of California Coastal Commission in

Support of Respondent County of Santa Barbara at 2, Cole v.

County of Santa Barbara, No. B147339 (Cal. Ct. App. Dec.

17, 2001). The lower court’s failure to prevent such open

flouting of this Court’s rulings is a compelling ground, in and

of itself, to justify review of the decision below

But a blatant disregard for this Court’s precedents is not all

that justifies plenary review of the decision below The

procedural bar the court of appeal adopted rests on two

related errors of constitutional law, each of which warrants

review by this Court. First, the lower court failed to

recognize the legally distinct property deprivation that the

County's conduct caused. Notwithstanding the Coastal

Commission’s exaction of an offer to dedicate an easement,

the Trust continued to enjoy the fundamental rights to use its

property and to exclude others from that property It was the

County’s acceptance of the offer to dedicate that stripped the

Trust of these fundamental rights. By failing to recognize the

separate deprivation that the County’s conduct caused, the

lower court allowed the County to violate the Trust’s

constitutional rights with impunity.

Second, the lower court’s procedural rule rests on a clearly

mistaken understanding of ripeness principles in the takings

context. Because the Coastal Commission’s permit decision

neither stripped the Trust of its right to exclude others nor

necessarily compelled such a deprivation, no takings claim

seeking compensation for the loss of this right could have

been brought in a 1980 challenge to the Commission’s

decision. Plainly, any challenge to County conduct that did

not occur until 2000, and that might never have occurred, was

in no sense “ripe” in 1980.

As a direct result of these errors, the County escaped its

“categorical duty” to pay compensation for an appropriation

of property that “dispossesse[d] the owner [of its] right to

exclude others,” 7ahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, No. 00-1167, slip op. at 18,

20 n.19 (U.S. Apr. 23, 2002), available at 2002 WL 654431,

and the Coastal Commission was improperly allowed “to put

an expiration date on the Takings Clause.” Palazzolo, 533

US. at 627. Absent review by this Court, moreover, these

constitutional violations will by no means be isolated. The

decision below clears the way for acceptance of literally

hundreds of other coerced offers to dedicate easements that

are due to expire in the next few years — offers that the

Coastal Commission is making every effort to ensure are

accepted In addition, the decision below provides a clear

roadmap that other States may use to escape the commands of

Nollan and Dolan and to appropriate beachfront and other

valuable easements without paying any compensation

I. THE COUNTY’S ACCEPTANCE OF THE OFFER

TO DEDICATE WAS AN UNCONSTITUTIONAL

TAKING OF PROPERTY.

The decision below raises a fundamental question of

constitutional law. when one governmental agency coerces a

property owner to record an offer to dedicate a public access

easement that does not satisfy the substantial nexus

requirement announced in Nollan and Dolan, and a separate

governmental entity later accepts that offer, does the latter

decision work a legally distinct deprivation of property

without just compensation? The court of appeal concluded

that it does not, and that any constitutional injury the property

owner suffers flows from the initial decision to compel the

offer. That conclusion, which is one of the central predicates

underiying the lower courts procedural bar, is demonstrably

wrong.

Although state law defines the property interests that the

Takings Clause protects, see Webb's Fabulous Pharmacies,

Inc. v. Beckwith, 449 U.S. 155, 161 (1980), whether and

when a compensable taking has occurred are questions of

federal law. In this case, the Coastal Commission did not

require the original property owner, Ms. Bushkin, to convey

title to the easement outright. Rather, it demanded that she

record only an offer to dedicate an easement. By its terms,

this offer to dedicate was made irrevocable for a period of 21

years; if it was not accepted during that period, the offer

would expire.

Under California law, it is well-established that, when an

offer to dedicate an easement is made, the public does not

thereby “acquire any right to the easement.” People v.

Williams, 2 P. 393, 396 (Cal. 1884). Rather, an unconditional

acceptance is required to complete a dedication. Baldwin v.

City of Los Angeles, 83 Cal. Rptr. 2d 178, 187 (Cal. Ct. App. :

1999). “A dedication without acceptance is, in law, merely

an offer to dedicate, and such offer does not impose any

burdens nor confer any rights,” unless there is an acceptance.

City of Santa Clara v. Ivancovich, 118 P.2d 303, 307 (Cal. Ct.

App. 1941) (emphasis added); see also Grupe, 212 Cal. Rptr.

at 592 (an offer to dedicate “will become effective only if

accepted by a public agency”).

The corollary to this rule, of course, is that an offer to

dedicate does not itself divest the property owner of the right

to use the subject property or to exclude others from that

property. To the contrary, Ms. Bushkin retained the essential

bundle of rights that attach to ownership of property. Indeed,

in Grupe, the court explained that an offer to dedicate like the

one at issue here created “no easement and respondent can

exclude the public from the privately owned portion of his

beach until such time as a public agency . . . agrees to accept

the offer and the concomitant responsibility to police the

beach.” 212 Cal. Rptr. at 592. See also Whalers’ Village

Club, 220 Cal. Rptr. at 15 (Commission abused its discretion

- in denying a landowner the right to exclude the public from

property prior to acceptance of an offer to dedicate, because

such a denial improperly “turns the offer to dedicate public

access into an immediate easement”).

Accordingly, even after the Coastal Commission required

Ms. Bushkin to execute an offer to dedicate a lateral

easement, she retained full use and possession of the property

in question, including “one of the most essential sticks in the

bundle of rights that are commonly characterized as

property — the right to exclude others.” Kaiser Aetna v.

United States, 444 U.S. 164, 176 (1979). Nor did the

Commission’s permit decision render the loss of these rights

inevitable. In fact, the likelihood that the easement would be

accepted was quite minimal. See Grupe, 212 Cal. Rptr. at

592, 601-02. And of course, if no public agency formally

accepted the offer to dedicate within 21 years of recordation,

the offer would expire by it terms and the owner of the

property would retain title completely unburdened by the

offer. See id. at 602.

It is thus clear that it was the County’s acceptance of the

offer to dedicate in March 2000, and not the Coastal

Commission’s 1980 permit decision, that deprived the Trust

of the right to use the 77,000 square feet of property and to

exclude others from that property. As a result of the County’s

acceptance, the Trust is forced to bear what amounts to a

permanent physical occupation’” of its property, by virtue

of the public’s unfettered right to use the land “to pass to and

fro,” Nollan, 483 U.S. at 832, and petitioner’s right to exclude

others has been permanently extinguished. See Copeland v.

City of Oakland, 23 Cal. Rptr. 2d 719, 723 (Cal. Ct. App.

1993) (upon acceptance of an offer to dedicate, “‘the property

is thereafter held in trust for public use’” and is “‘no longer

subject to private control’”’), As a matter of federal

constitutional law, the County’s acceptance of the offer to

dedicate worked a legally distinct deprivation of property for

which the County either must pay compensation or

demonstrate that the nexus and proportionality requirements

of Nollan and Dolan have been satisfied.

cee

In concluding otherwise, the court of appeal reasoned that

“[t]he validity of the permit condition underlies all of the

causes of action alleged in the trustee’s amended complaint,”

and that petitioner’s claims “are derived from and dependent

upon the original permit condition the predecessor in interest

failed to timely challenge.” Pet. App. 12a. Although the

Coastal Commission’s decision to impose the unconstitutional

condition was plainly a necessary predicate for the County’s

later decision to accept the offer to dedicate, the two decisions

are logically and legally distinct. In accepting the offer to

dedicate, the County made a purely discretionary decision

that was not compelled by the original permit condition. See

Grupe, 212 Cal. Rptr. at 592 (noting that it was unlikely that a

public agency would actually accept the offer to dedicate at

issue in that case). In making this decision, moreover, the

County had an independent duty to respect the constitutional

rights of property owners. Its decision to accept an easement

that was patently inconsistent with the requirements of Nollan

and Dolan, therefore, is a legally separate governmental act

that caused an injury that the original permit decision made

possible but did not, by itself, cause. See Whalers’ Village

Club, 220 Cal. Rptr. at 14-15.°

In short, although the same constitutional flaw infects both

the Coastal Commission’s action and that of the County, the

County’s acceptance of the offer to dedicate resulted in a

constitutional injury that the Commission’s permit decision

alone did not cause. This Court should grant review in order

to make clear that the dictates of the Takings Clause cannot

be circumvented by state efforts to appropriate private

property in two steps rather than one.

* Under the contrary, and misguided, reasoning of the lower court, a

local government would today be free to accept an offer to dedicate an

easement for a “whites only” beach that a permitting body coerced when

de jure racial segregation practices were under legal attack but had not yet

been deemed unconstitutional or proscribed by any federal statute.

Although the same equal protection violation would inhere in both the

permit and the subsequent acceptance decision, it is perfectly clear that a

decision to accept such an unlawful offer gives rise to a separate

constitutional wrong by a separate state entity bound to respect

constitutional rights.

Il. NO CHALLENGE TO A DEPRIVATION OF THE

TRUST’S RIGHT TO USE THE PROPERTY AND

TO EXCLUDE OTHERS FROM IT WAS “RIPE”

IN 1980.

The decision below also rests on a _ fundamental

misapprehension of federal ripeness principles. That

misapprehension led the lower court to adopt a procedural

rule that barred judicial review of a valid takings claim, and

thereby impermissibly “relieve[d] [the State] of the duty to

provide compensation.” First English Evangelical Lutheran

Church v. County of Los Angeles, Cal., 482 U.S. 304, 321

(1987). As it did in First English, this Court should grant

review to correct this constitutional error and to make clear

that perceived notions of administrative efficiency cannot

trump the requirements of the Takings Clause.

This Court has consistently ruled that a property owner may

not pursue a takings challenge until there has been a final

government decision. See Williamson County Reg'] Planning

Comm'n v. Hamilton Bank, 473 U.S. 172, 186 (1985); see

also Palazzolo, 533 U.S. at 620 (property owner cannot

establish a takings challenge “before a land-use authority has

the opportunity, using its own reasonable procedures, to

decide and explain the reach of a challenged regulation”).

Under California law, it is clear that no state agency made a

final decision to divest the Trust of its right to use and

exclude others from the beachfront property until the County

finally accepted the offer to dedicate in March 2000. Thus,

any claim the original property owner could have brought

seeking redress for a physical taking would have been entirely

premature in 1980; at that time, and for nearly 20 years

thereafter, no one knew whether, or when, a public agency

might decide to accept the offer to dedicate. See Grupe, 212

Cal. Rptr. at 602 (“the Commission cannot know with

certainty whether future events will occur that as a practical

matter are essential to implementation of [an offer to

dedicate]”).

The court of appeal’s conclusion that petitioner’s claims

were barred by Bushkin’s failure to file a petition for a writ of

administrative mandamus within 60 days of the

Commission’s 1980 permit decision is flatly inconsistent with

these ripeness principles. Under this Court’s precedents, it is

clear that any challenge to the taking caused by the County’s

acceptance of the offer to dedicate was not “ripe” when the

offer to dedicate was recorded, and that Bushkin could not

have brought (and thus could not have waived) any challenge

to that taking in 1980. Indeed, the court of appeal’s flawed

reasoning would allow a recording landowner to obtain an

undeserved windfall — she would be entitled to compensation

for the full value of a property loss that might never come to

pass, or, as happened in the present case, that might be

suffered by a subsequent property owner. See Danforth v.

United States, 308 U.S. 271, 284 (1939) (“compensation is

due at the time of taking, [and] the owner at that time, not the

owner at an earlier or later date, receives the payment”).

None of the policies the court of appeal cited below,

moreover, supports its procedural bar. The court noted that:

“[o]nce aware of a challenge from whatever source, an

agency can cancel, change, or stay enforcement of a

challenged action, or otherwise mitigate damages. On

the other hand, if persons affected by adverse

administrative actions — be they landowners, permit

applicants, or others — were permitted to refrain from

challenging such actions until mitigation of damages by

the government becomes impossible through the passage

of time or events, and then present monetary claims, the

financial burden on government could become

overwhelming.”

Pet. App. lla (quoting Patrick Media Group, Inc. v.

California Coastal Comm'n, 11 Cal. Rptr. 2d 824, 836-37

(Cal. Ct. App. 1992)). Petitioner asserted his taking claim,

however, in a manner that is fully consistent with the policies

the court of appeal relied on to justify preclusion of that

claim. He afforded the-County — the state entity that actually

deprived the Trust of its fundamental property rights — ample

warning and opportunity to avoid exposure for takings

damages, by repeatedly urging the County not to accept an

easement that bore no substantial nexus or rough

proportionality to the construction project to which the

easement was tied. Petitioner then brought suit within 30

days of the County’s acceptance of the offer to dedicate, not

“three or five years later... [when] meaningful governmental

fiscal planning . . . [became] impossible,” Patrick Media

Group, Inc. v. California Coastal Commission, \1 Cal. Rptr.

2d 824, 836 (Cal. Ct. App. 1992); indeed, petitioner claims

that the taking dates only from March 2000, not May 1980,

when the Commission imposed the original permit condition.

In all events, this Court has made clear that the type of

policy considerations that the court of appeal cited cannot

justify a procedural scheme that forecloses judicial review of

valid takings claims. In First English, this Court addressed a

procedural scheme that prohibited landowners from

challenging a “regulatory” taking in an action for inverse

condemnation, and thus effectively barred compensation for

temporary takings. Citing the “need for preserving a degree

of freedom in the land-use planning function, and the

inhibiting financial force which inheres in the inverse

condemnation remedy,” the California Supreme Court had

held, in Agins v. Tiburon, 598 P.2d 25 (Cal. 1979), aff'd on

other grounds, 447 U.S. 255 (1980), that a landowner must

first establish that a regulation is excessive in an action for

declaratory relief or for a writ of mandamus, and thus cannot

recover damages for any “temporary” taking that occurs prior

to the government’s decision to withdraw the regulation in

response to a court finding of excessiveness. /d. at 29-31.

Although this Court acknowledged the validity of the policies

that led to the adoption of this procedural scheme, First

English, 482 U.S. at 317, it heid that a State may not adopt a

review scheme that “relieve[s] it of the duty to provide

compensation for the period during which the taking was

effective.” /d. at 321.

So too here, policies supporting prompt review of

administrative action cannot compel the bringing of takings

claims that, under this Court’s precedents, are plainly unripe,

particularly where, as here, a “failure” to bring such an unripe

claim then forms the basis for precluding all judicial review

of an unquestionably meritorious takings claim. The

California legislature itself has explicitly recognized that local

governments play a role, separate and unique from that of the

Coastal Commission, in implementing coastal programs and

has provided a separate remedy for any injuries that local

governments cause through such implementation. See Cal.

Pub. Res. Code § 30802 (“[a]ny person . . . aggrieved by the

decision or action of a local government that is implementing

a certified local coastal program . . . ha[s] a right to judicial

review of such decision or action”). The decision below

improperly forecloses this avenue of redress, as well as that

provided under 42 U.S.C. § 1983, for an unconstitutional

taking bas ' on a_ procedural waiver rule that is

irreconciliable with governing ripeness doctrine. This Court

should grant the petition to confirm that preclusion of such

valid takings claims is impermissible, and cannot be justified

by claims of administrative efficiency.

lil. UNLESS THIS COURT GRANTS REVIEW,

HUNDREDS OF OTHER UNCONSTITUTIONAL

DEPRIVATIONS WILL ESCAPE JUDICIAL

REVIEW.

Unless this Court grants review, the unconstitutional taking

of coastal property that occurred in this case will not be an

isolated incident. First, literally hundreds of other offers to

dedicate easements that the Coastal Commission coerced

before this Court’s decision in Nollan are due to expire soon,

and the Commission has made clear its intention to secure

acceptance of as many of these easements as possible. See

James Rainey, Faster Action by Agencies Is Preserving Beach

Access, L.A. Times, July 10, 2000, at A3, available at 2000

WL 2258956. If this Court declines to review the decision

below, local governments throughout California will

understand that they are free to accept these outstanding

offers to dedicate without fear of incurring takings liability.

Indeed, absent review by this Court, it is unlikely that many

other property owners will even attempt to challenge such

acceptance decisions. In its zeal to obtain acceptance of

hundreds of outstanding offers to dedicate easements, the

Coastal Commission took the extraordinary step of enjoining

petitioner from resisting such efforts, and is threatening him

personally (not as trustee) with fines amounting, at this point,

to potentially tens of millions of dollars for challenging an

offer to dedicate an easement that does not comply with the

requirements set forth in Nollan and Dolan. Should this

Court deny review in this case, few litigants will have either

the financial wherewithal or the resolve to withstand such

administrative intimidation in the future. This Court

condemned the Coastal Commission’s strong-arm tactics in

Nollan, it should not blink at them now when the effect will

be precisely the same, viz., uncompensated takings of

property.

Second, the decision below provides a clear roadmap that

other States can use to escape the Court's holdings in Nollan

and Dolan. Rather than employ direct extortion as in Nollan,

government entities can use the “offer to dedicate” scheme to

avoid paying for their takings. Most landowners will have

little incentive to mount a takings challenge to a permit

condition that coerces an offer to dedicate given (1) the

remote likelihood that such an offer will ever affect the

current landowner, and (2) the reality that any such challenge

is unripe. Thus, the government can compel such offers with

impunity, then wait years to implement the actual taking, and

resist subsequent compensation claims based on the waiver

and res judicata principles endorsed below. The resulting

procedural whipsaw thus prevents the truly injured landowner

from challenging the real taking because no one acted in

response to the largely trivial action taken earlier.

Finally, this case presents a particularly good vehicle for

resolving an important issue affecting hundreds of coastal

property owners. Petitioner’s challenge to the unconstitu-

tional taking committed by the County of Santa Baroara has

been clearly and squarely presented from the outset of this

litigation, and he has exhausted his state court remedies. This

Court should grant the petition in order to ensure that the

procedural bar adopted below does not render the promise of

Nolian and Dolan completely illusory.

CONCLUSION

For the reasons stated above, this Court should grant the

petition for writ of certiorari.

Respectfully submitted,