Amicus Curiae Brief — Ewing v. City of Carmel-by-the-Sea

Q PRS

FICED

No. 91-1541

0 5 APR

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

6

JOHN W. EWING, et al.,

Petitioners,

THE CITY OF CARMEL-BY-THE SEA, et al.,

Respondents.

e

Petition for Writ of Certiorari

to the Sixth Appellate District Court

of Appeal for the State of California

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

¥

RONALD A. ZUMBRUN

EDWARD J. CONNOR, JR.

*R. S. RADFORD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

'

TABLE OF CONTENTS

Page

TAREE GR AUSTEGie eee CITED. 20505 cee csanwees ii

ig ge Sle}. ee ee 2

EPR ENE GPE BU Ge cw cece ens sccsenensecs 3

SUMMARY GF ARGUMENT. 20.500 cc cccecsccccnsss 4

ph et |: OTe Tee Te Lee TS COR URE TUTTE EC Tee 6

I. THIS COURT’S HOLDING IN NOLLAN

DEMANDS HEIGHTENED JUDICIAL SCRU-

TINY OF LAND USE REGULATIONS CHAL-

LENGED UNDER THE TAKINGS CLAUSE... 6

II. NOLLAN’S HEIGHTENED SCRUTINY

REQUIREMENT HAS BEEN WIDELY NOTED

AND FOLLOWED BY COMMENTATORS AND

as) | SPT Tere TTT eT eer OTT Tr See Tere ee 7

III. REJECTION OF THE HEIGHTENED SCRUTINY

REQUIREMENT BY THE COURT BELOW HAS

DEPRIVED PETITIONERS OF FEDERAL CON-

STITUTIONAL SAFEGUARDS GUARANTEED

TO ALL AMERICANS

CRP RA OOUIN eso pS U NSW oes bo ba euestaheananssaanees 11

li

TABLE OF AUTHORITIES CITED

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980)....... 3,4

Blue Jeans Equities West v. City and County of

San Francisco, 3 Cal. App. 4th 164 (1992).......... 9

Commercial Builders of Northern California v.

City of Sacramento, 941 F.2d 872 (9th Cir.

i) eee Prey yer er ee Sy ae ea 9

Euclid v. Ambler Realty Co., 272 U.S. 365

CEP ss VOWS ci vanvten ed eNSURMACEL ORE NaNO EKa TEE 5, 11

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.

De CUNO oo cians wh awk vas aN en laeewee evade cee ee eee 2

riodel v. Irving, 461 U.S. 704 (1967)... 6. cccccceacess 2

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ...............05. 2

Loretto v. Teleprompter Manhattan CATV Corp.,

BOO VED. SIF TIRED onan 5 acwadeuasaubheebanctuaews 4

Nollan v. California Coastal Commission,

GOP GD Gee SUPE vaca 6 asuncenecadeduntaneeas passim

Seawall Associates v. City of New York,

ee & BB | eee r rere erry res eer 9

Surfside Colony, Ltd. v. California Coastal

Commission, 226 Cal. App. 3d 1260 (1991)......... 9

Yee v. City of Escondido, __-s—aUS. __,

No. 90-1947, slip op. (Apr. 1992)... .........50004 6, 7

RULES AND REGULATIONS

supreme Court Rite Si «os sacs decccccuccesnivesunene 1

ili

TABLE OF AUTHORITIES CITED-——Continued

Page

UNITED States CONSTITUTION

re a a ag Le ole og 4k ec RN eS 2, 4

GS aa a NBR 2, 4

MISCELLANEOUS

Lawrence Berger, Inclusionary Zoning Devices as

Takings: The Legacy of the Mount Laurel Cases,

ee 8

Brian W. Blaesser & Christine M. Kentopp, Impact

Fees: The “Second Generation,” 38 Wash. U. J.

re. Ge Comtempt. L. 55 (1990). .......... eee ceees 7-8

James W. Ely, Jr., The Guardian of Every Other

Right: A Constitutional History of Property

ria e Gh n6e 645 et eH OSES AREAS NORD 7

Note, “Taking” on the Environment: The Takings

Clause and Environmental Law—Some Obser-

vations, 36 Loy. L. Rev. 1083 (1991)................ 8

R. S. Radford, Statistical Error and Legal Error,

ee ee 11-12

No. 91-1541

¢

In The

Supreme Court of the United States

October Term, 1991

*

JOHN W. EWING, et al.,

Petitioners,

THE CITY OF CARMEL-BY-THE SEA, et al.,

Respondents.

*

Petition for Writ of Certiorari

to the Sixth Appellate District Court

of Appeal for the State of California

7

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

¢

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus

curiae in support of the petition for writ of certiorari.

Written consent to the filing of this brief has been granted

by counsel for all parties. Copies of the letters of consent

have been lodged with the clerk of this Court.

+

INTEREST OF AMICUS

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in

matters affecting the public interest. PLF has over 20,000

contributors and supporters located throughout the coun-

try and maintains its principal office in Sacramento, Cali-

fornia. The Foundation’s policy is set by a Board of

Trustees composed of concerned citizens, the majority of

whom are attorneys. PLF’s Board evaluates the merits of

any contemplated legal action and authorizes such action

only where the Foundation’s position has broad support

within the general community.

Amicus seeks here to augment the argument in the

petition for writ of certiorari. It is believed that PLF’s

public policy perspective and litigation experience in

support of private property rights will provide an addi-

tional viewpoint with respect to the constitutional issues

presented. PLF has participated in numerous cases

involving issues arising under the Takings and Due Pro-

cess Clauses of the Fifth and Fourteenth Amendments to

the United States Constitution. Its attorneys were counsel

of record in the landmark United States Supreme Court

case, Nollan v. California Coastal Commission, 483 U.S. 825

(1987), and PLF participated as amicus curiae in Keystone

Bituminous Coal Association v. DeBenedictis, 480 U.S. 470

(1987), Hodel v. Irving, 481 U.S. 704 (1987), and First

English Evangelical Lutheran Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987).

The present case involves an egregious violation of

federal constitutional rights in the guise of local land use

regulation. The opinion below upholds a regulation that

extinguishes a valuable property interest, even though it

fails to advance its asserted police-power objectives. The

regulation thus fails both parts of this Court’s threshold

standards for regulatory takings:

The application of a general zoning law to

particular property effects a taking if the ordi-

nance does not substantially advance legitimate

state interests .. . or denies an owner economi-

cally viable use of his land.

Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).

The court below acquiesced in the city’s violation of

petitioners’ fundamental rights by fabricating a rationale

for the ordinance based entirely on the court’s own fanci-

ful sociological theories. If allowed to stand, the opinion

below will constitute a serious setback for individual

rights by undermining this Court’s careful efforts, over

the past two decades, to restore full constitutional protec-

tion to private property rights.

¢

STATEMENT OF THE CASE

The City of Carmel-by-the-Sea (City) has a long his-

tory of municipal ordinances designed to exclude, harass,

or discriminate against nonresidents. Petitioners are resi-

dential homeowners in the City who have engaged in the

common, lawful activity of renting out their homes to

vacationers. In 1989 the City adopted Ordinance

No. 89-17, which prohibits petitioners from renting their

homes for terms of less than 30 days. Petitioners brought

this action challenging the ordinance as a taking of their

property without just compensation in violation of the

Fifth and Fourteenth Amendments to the United States

Constitution.

Although the City’s asserted police-power rationale

for the ordinance has been shown to be spurious, and the

measure extinguishes a valuable interest in private prop-

erty, the California Court of Appeal declined to apply the

close scrutiny demanded by this Court in regulatory tak-

ings cases. Instead, the court below applied the dis-

credited “rational basis” standard of review rejected by

this Court in Nolian and upheld the measure on the basis

of the court’s own fanciful sociological speculations.

¢

SUMMARY OF ARGUMENT

The Fifth Amendment to the United States Constitu-

tion provides that “private property [shall not] be taken

for public use, without just compensation.” U.S. Const.

Amend. V. This Court has long held that the Takings

Clause can be violated by either of two broad categories

of state action. Uncompensated physical invasions of

property are per se violations of the Takings Clause under

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982). The Takings Clause is also violated under this

Court’s regulatory takings doctrine whenever the charac-

ter of the government’s regulatory action is such that it

fails to substantially advance legitimate government

interests. The same is true when the economic impact is

such that it deprives an owner of economically viable use

of property. Agins v. City of Tiburon, 447 U.S. at 260.

In Nollan v. California Coastal Commission, this Court

established a requirement of heightened judicial scrutiny

for courts examining property regulations challenged as

regulatory takings. 483 U.S. at 835 n.3. The deferential

standard of review appropriate to due-process inquiries

was specifically rejected as inadequate for takings cases.

Id.

The case at bar involves an unwarranted prohibition

of a common and lawful use of private property in order

to exclude outsiders from a community. The municipality

asserted a boilerplate police-power rationale for this mea-

sure, but the court below acknowledged there is no evi-

dence that the prohibited activity has any relationship to

the asserted governmental objectives.

Instead of applying the heightened scrutiny required

by this Court in Nollan, however, the court below retreat-

ed to the highly deferential due-process standard of

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). There-

upon, the appellate court fabricated a wholly novel ratio-

nale for the regulation based entirely on the court’s own

pseudo-sociological speculations. The court then used

these unsupported, ad hoc fantasies to uphold the chal-

lenged measure against petitioners’ takings challenge.

The level of scrutiny applied by the court below is no

more than an exercise in judicial imagination to find some

way to uphold a patently unconstitutional enactment.

This may once have been an appropriate standard of

review in due-process cases under Euclid. However, this

intensely deferential attitude was explicitly rejected by

this Court in Nollan.

Review should be granted to resolve the conflict that

has been created among lower court jurisdictions con-

cerning Nollan’s requirement of heightened scrutiny in

regulatory takings challenges and to prevent future con-

flicts on this important issue.

¢

ARGUMENT

I

THIS COURT’S HOLDING IN NOLLAN

DEMANDS HEIGHTENED JUDICIAL SCRUTINY

OF LAND USE REGULATIONS CHALLENGED

UNDER THE TAKINGS CLAUSE

In its leading case in the field of regulatory takings,

this Court clearly established that land use regulations

challenged under the Takings Clause must be subjected to

a heightened standard of judicial review. Such enact-

ments may no longer be upheld merely by reference to a

“rational relationship” to their asserted objectives:

{[O]ur opinions do not establish that [takings]

standards are the same as those applied to due

process or equal protection claims. To the con-

trary, ... [w]e have required that the regulation

“substantially advance” the “legitimate state

interest” sought to be achieved, not that “the

State ‘could rationally have decided’ the measure

adopted might achieve the State’s objective.”

Nollan, 483 U.S. at 835 n.3 (citations omitted; emphasis in

original).

The heightened scrutiny requirement was recently

emphasized by this Court in Yee v. City of Escondido,

___ U.S. __, No. 90-1947, slip op. (Apr. 1992). The regula-

tion at issue in Yee was upheld against a claim that it

authorized a permanent physical invasion. However, this

Court noted that a regulatory takings challenge would

have warranted closer scrutiny to determine “whether

there is a sufficient nexus between the effect of the ordi-

nance and the objectives it is supposed to advance.” Yee,

slip op. at 9 (citing to Nollan).

Ii

NOLLAN’S HEIGHTENED SCRUTINY

REQUIREMENT HAS BEEN WIDELY NOTED AND

FOLLOWED BY COMMENTATORS AND COURTS

Nollan’s heightened scrutiny requirement has not lan-

guished in obscurity. It has been widely noted and dis-

cussed in legal journals and commentaries, often by

authors who are openly hostile to the Nollan doctrine. A

random sample of this literature would include passages

such as:

The Nollan decision alarmed land use regulators

because it signalled a heightened degree of judi-

cia] supervision.

James W. Ey, Jr., THE GUARDIAN OF Every OTHER RIGHT: A

CONSTITUTIONAL History oF Property Ricuts 148 (1992).

The Nollan case . . . suggests that a heightened

standard of review has replaced the less strin-

gent standard applied by California and Texas

courts in cases in which the challenger has

alleged a regulatory taking of private property

for public purposes without just compensation.

Brian W. Blaesser & Christine M. Kentopp, Impact Fees:

The “Second Generation,” 38 Wasn. U. J. Urs. & Contemp. L.

55, 100 (1990).

Nollan marks a move away from the mini-

mal-rationality test that had been used by the

Court in its prior takings analysis.

Note, “Taking” on the Environment: The Takings Clause and

Environmental Law—Some Observations, 36 Loy. L. Rev.

1083, 1098 (1991).

Nollan established that a meaningful, height-

ened, nexus scrutiny of governmental regulation

of property rights is, henceforth the governing

norm.

Lawrence Berger, Inclusionary Zoning Devices as Takings:

The Legacy of the Mount Laurel Cases, 70 Nes. L. Rev. 186,

211 (1991).

Citations to a representative selection of additional

published references to Nollan’s heightened scrutiny

requirement have been appended to this brief as Appen-

dix A. Given this extensive body of literature, it is hard to

imagine that the court below could have been unaware

that this Court has mandated a heightened standard of

review for claims such as petitioners’.

In addition to receiving widespread coverage in the

legal literature, Nollan’s requirement of heightened scru-

tiny in regulatory takings cases has been recognized and

applied by state courts faced with federal takings claims

brought under the Fourteenth Amendment.

9

[Regulatory takings challenges require] “semi-

strict or heightened judicial scrutiny of regula-

tory means-ends relationships” as articulated in

Nollan.

Seawall Associates v. City of New York, 542 N.E.2d 1059,

1068 (1989).

Nollan . . . changed the standard of consti-

tutional review in takings cases. Whether the

new standard is described as “substantial rela-

tionship,” or “heightened scrutiny,” it is clear

the rational basis test . . . no longer controls.

Surfside Colony, Ltd. v. California Coastal Commission,

226 Cal. App. 3d 1260, 1270 (1991).

Recently, however, some lower courts have fallen

into error on this point. For example, a brief filed with

the California Supreme Court opposing review of the

decision below cites Commercial Builders of Northern Cali-

fornia v. City of Sacramento, 941 F.2d 872 (9th Cir. 1991), for

the erroneous proposition that Nollan does not require

heightened scrutiny. And in an even more bizarre ruling,

a California court has proclaimed that Nollan does not

apply to regulatory takings cases at all. Blue Jeans Equities

West v. City and County of San Francisco, 3 Cal. App. 4th

164 (1992). Although obviously flawed and implicitly

overruled by Yee, these aberrant decisions have created a

conflict among state and federal jurisdictions on this vital

issue. They underscore the need for this Court to grant

the writ of certiorari sought by petitioners in order to

resolve conflicts among the jurisdictions over the height-

ened scrutiny requirement set forth in Nollan.

10

Ill

REJECTION OF THE HEIGHTENED

SCRUTINY REQUIREMENT BY THE COURT

BELOW HAS DEPRIVED PETITIONERS OF

FEDERAL CONSTITUTIONAL SAFEGUARDS

GUARANTEED TO ALL AMERICANS

The court below expressly recognized that petitioners

raised a regulatory takings challenge under the United

States Constitution. Ewing v. City of Carmel-by-the-Sea,

234 Cal. App. 3d 1579, 1583 (1991). Disregarding the plain

teaching of this Court, however, the California panel

declined to apply any meaningful scrutiny to the ordi-

nance at issue.

The City cloaked Ordinance No. 89-17 in a boilerplate

police-power rationale, claiming that the occasional

rental of private homes causes increased traffic, parking

problems, light, glare, and noise. Ewing, 234 Cal. App. 3d

at 1589. The appellate court properly looked behind this

asserted rationale and found that it had no basis in fact.

Id. at 1589-90.

At this point, the heightened scrutiny demanded by

Nollan permits only one outcome. Since the prohibited

property use has been shown not to cause the problems

purportedly addressed by the ordinance, the ordinance

cannot possibly “substantially advance” the mitigation of

these problems. Because it fails to substantially advance

the City’s asserted purposes, the ordinance must be

struck down as unconstitutional under Nollan.

Instead, the court below embarked on a breathtaking

exercise of uninformed sociological theorizing in a quest

to salvage the ordinance. On its own authority and with

11

no evidence before it, the appellate court proclaimed that

vacation renters do not become little league coaches,

scout troop leaders, or hospital volunteers—and therefore

that banning such individuals from the community com-

prises a legitimate state interest in itself! Ewing, 234 Cal.

App. 3d at 1591.

On its face, this burlesque of legal reasoning entails a

rejection of any meaningful concept of heightened scru- ~

tiny. Indeed, the court below acknowledges that it seeks

only to find some “rational relationship” between the

City’s ordinance and some governmental objective. Id.

at 1596. The California court’s application of an inade-

quate standard of review is highlighted by its reliance on

a 70-year-old due-process case, Euclid v. Ambler Realty Co.

Euclid’s intensely deferential standard of review may still

be appropriate to due-process inquiries, but it is mani-

festly inadequate for regulatory takings challenges. See

Nollan, 483 U.S. at 835 n.3.

CONCLUSION

The rejection of Nollan’s heightened scrutiny require-

ment by the court below, and its resurrection of the

deferential due-process standard of Euclid, is more than a

simple mistake in the application of federal constitutional

law. Rather, it amounts to a denial of fundamental rights

guaranteed by the United States Constitution. The appro-

priate standard of judicial review is not a mere pro-

cedural detail. In close cases, the level of scrutiny

determines the outcome of litigation. See R. S. Radford,

12

Statistical Error and Legal Error, 21 Loy. L.A. L. Rev. 843,

870-79 (1988). In the context of regulatory takings, the

level of scrutiny determines whether individual property

rights will be protected against predatory and confisca-

tory regulations or not.

While California courts may be justified in departing

from federal precedent in order to extend greater constitu-

tional protections to California citizens than the federal

courts provide, such is manifestly not the case here. To

the contrary, the California Court of Appeal has deprived

petitioners of impcerstant rights recognized and protected

by the decisions of this Court.

For the reasons stated above, it is respectfully sub-

mitted that the petition for writ of certiorari should be

granted.

DATED: April, 1992.

RONALD A. ZUMBRUN

EpwarpD J. CONNOR, JR.

*R. S. RapForD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

A-1

APPENDIX A

PUBLISHED CITATIONS TO THE HEIGHTENED

SCRUTINY REQUIREMENT OF NOLLAN v.

CALIFORNIA COASTAL COMMISSION

Lawrence Berger, Inclusionary Zoning Devices as Takings:

The Legacy of the Mount Laurel Cases, 70 Nes. L. Rev. 186,

210-12 (1991).

Robert K. Best, The Supreme Court Becomes Serious About

Takings Law: Nollan Sets New Rules for Exactions,

10 Zoninc & Ptan. L. Rep. 153 (Sep.-Oct. 1987).

Brian W. Blaesser & Christine M. Kentopp, Impact Fees:

The “Second Generation,” 38 Wasn. U. J. Urs. & Contemp.

L. 55, 100 (1990).

Bruce W. Burton, Predatory Municipal Zoning Practices:

Changing the Presumption of Constitutionality in the Wake

of the “Takings Trilogy,” 44 Ark. L. Rev. 65, 99 (1991).

Comment, “Get It Right the First Time”: A Message from

the Supreme Court to Land Use and Environmental Regu-

lators—A Comment on Nollan and First English, 7 UCLA

J. Envr’t L. & Pot’y 173, 177-78 (1988).

Comment, Justice Stevens’ Pro-Land Use Planning Views and

Recent Regulatory Takings Cases, 21 Urs. Law. 579, 584

(1989).

Michael H. Crew, Development Agreements After Nollan v.

California Coastal Commission, 483 U.S. 825 (1987),

22 Urs. Law. 23, 34-37 (1990).

Gary Eisenberg, Property: The Takings Clause of the Fifth

Amendment, 1988 ANN. Surv. Am. L. 1101, 1122.

James W. Ely, Jr., THE GuaARDIAN oF Every OTHER RiGHT: A

CONSTITUTIONAL History OF Prorerty RicHts 148 (1992).

William A. Falik & Anna C. Shimko, The “Takings” Nexus:

The Supreme Court Chooses a New Direction in Land-Use

CCC

A-2

Planning: A View from California, 39 Hastincs L. J. 359,

390 (1988).

Daniel R. Mandelker, LAND Use Law §2.23 at 45 (2d ed.

1988).

Gary Minda, The Dilemmas of Property and Sovereignty in

the Postmodern Era: The Regulatory Takings Problem, 62 U.

Coro. L. Rev. 599, 613 (1991).

Note, A Constitutional Standard of Review for Permit

Conditions, Exactions, and Linkage Programs: Nollan v.

California Coastal Commission, 30 B.C. L. Rev. 903, 926-29

(1989).

Note, Nollan v. California Coastai Commission: Unprece-

dented Intrusion Upon a State’s Judgment of the Proper

Means To Be Applied in Land Use Regulation, 21 J.

MArsHALL L. Rev. 641, 648-49 (1988).

Note, The Supreme Court, 1986 Term: Leading Cases,

101 Harv. L. Rev. 119, 245, 247 (1987).

Note, “Taking” on the Environment: The Takings Clause and

Environmental Law-—-Some Observations, 36 Loy. L. Rev.

1083, 1098 (1991).

Craig A. Peterson, Land Use Regulatory “Takings” Revisited:

The New Supreme Court Approaches, 39 Hastincs L. J. 335

(1988).

Bart H. Thompson, Jr., Judicial Takings, 76 VA. L. Rev.

1449, 1450 n.1 (1990).