# Amicus Curiae Brief — Commercial Builders v. City of Sacramento > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0409%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 - **Citation:** 504 U.S. 931 ## Text aa Supreme Court, U.S ( 2) FILED No. 91-1556 APR 22 1992 OFFICE THE CLERK IN THE OFFICE OF Supreme Court of the Anited States OCTOBER TERM, 1991 COMMERCIAL BUILDERS OF NORTHERN CALIFORNIA, and its affected members, Petitioner, Vs City OF SACRAMENTO, CALIFORNIA, et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit NATIONAL ASSOCIATION OF HOME BUILDERS, INTERNATIONAL COUNCIL OF SHOPPING CENTERS, ASSOCIATION FOR COMMERCIAL REAL ESTATE, NATIONAL REALTY COMMITTEE, NATIONAL MULTI HOUSING COUNCIL, AND NATIONAL APARTMENT ASSOCIATION MOTION FOR LEAVE TO FILE A BRIEF AMICI CURIAE AND BRIEF IN SUPPORT OF THE PETITION WILLIAM H. ETHIER CoHN & BIRNBAUM, P.C. 100 Pearl Street Hartford, CT 06103-4500 (203) 493-2200 Counsel of Record April 22, 1992 Silicate mination eetnenendenienaetenene eeemeemenmnctnenedimeennneaeaianaenennetaneaneeneeee PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 IN THE Supreme Court of the GAnited States OCTOBER TERM, 1991 No. 91-1556 COMMERCIAL BUILDERS OF NORTHERN CALIFORNIA, and its affected members, Petitioner, ¥e CITY OF SACRAMENTO, CALIFORNIA, et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit NATIONAL ASSOCIATION OF HOME BUILDERS, INTERNATIONAL COUNCIL OF SHOPPING CENTERS, ASSOCIATION FOR COMMERCIAL REAL ESTATE, NATIONAL REALTY COMMITTEE, NATIONAL MULTI HOUSING COUNCIL, AND NATIONAL APARTMENT ASSOCIATION MOTION FOR LEAVE TO FILE A BRIEF AMICI CURIAE The National Association of Home Builders (NAHB), et al., respectfully move this Court for leave to file the accompanying brief amici curiae in support of Petitioners. These amici curiae have received the petitioner’s written consent to file this brief in support of petitioner and have filed the letter of consent with the Clerk of this Court. The respondent city has not responded to our request for consent to file a brief in support of the petition. The NAHB represents 157,000 builder and associ- ate members organized in approximately 850 affiliated state and local associations in all fifty states, the Dis- trict of Columbia, and Puerto Rico. Its members in- clude not only people and firms that construct and supply single-family homes but also apartment, con- dominium, commercial and industrial builders, as well as land developers and remodelers. It is the voice of the American shelter industry. The International Council of Shopping Centers (ICSC) is the trade association of the shopping center industry. It has approximately 24,000 members world- wide and approximately 22,000 in the United States. Its members, including developers, owners, retailers, lenders and all others having a professional interest in the shopping center industry, are engaged in the day-to-day activities of designing, planning, construct- ing, managing, financing, developing, leasing and owning shopping centers and their retail stores. It represents almost all of the 37,000 shopping centers in this country and is the only U.S. trade association specific to shopping centers. The Association for Commercial Real Estate, for- merly the National Association of Industrial & Office Parks, is a professional organization of more than 6,000 individuals engaged in owning, managing and developing office and industrial buildings in the United States and internationally. Its members include not only the nation’s leading commercial real estate de- velopers but als» architects, brokers, master planners, engineers, property managers, banks, insurance com- panies and other real estate financial groups. The National Realty Committee represents the na- tion’s leading developers, owners and financiers of income-producing real property. Its members include individuals and firms that design, plan, develop, lease, own, operate and finance income-producing real prop- erty, including office buildings, shopping centers, in- dustrial buildings, warehouses and apartment buildings. The National Multi Housing Council (NMHC) rep- resents the country’s larger and most respected mul- tifamily rental housing firms. Its members are engaged in all aspects of the development and op- eration of rental housing including the ownership, building, financing, management, and conversion to condominium of such properties. The National Apart- ment Association (NAA) is an organization of local and state associations representing owners, builders, investors, developers and managers of multifamily properties. The NAA represents the interests of more than 200,000 multifamily professionals and the mem- bers of the NMHC and NAA together own and man- age about one third of the nation’s approximately 24 million rental housing units. The just compensation clause serves as a vital shield against oppressive governmental land use regulation. It is, therefore, of paramount importance to these amici, all non-profit trade associations, and our mem- bers. The actual availability of an appropriate remedy for the occasional government action that results in a taking is critical to the livelihood of private land- owners who either 1) have lost all reasonable eco- nomic use of their property solely in order to serve the broader public (i.e., governmental) interests, or 2) are otherwise faced with overreaching governmental requirements including those that fail to substantially advance legitimate governmental interests. The latter type of governmental requirement is presented in this case by the city’s demand that individual private prop- erty owners pay for society’s costs of providing hous- ing to low income persons. That affordable housing is needed by persons with low incomes is not the question. The question is whether this housing must be paid for by individual private property owners who happen to provide employment opportunities for low income people. The NAHB has been before this Court as an amicus curvae or as of counsel on behalf of the property owner in prior “takings” cases involving govern- ments’ land use decisions.. The NAHB and ICSC joined to file an amici curiae brief in Lucas v. South Carolina Coastal Council, No. 91-453, currently be- fore the Court. The NAHB’s brief was favorably cited in this Court’s Nollan opinion, 483 U.S. at 840. Nollan is at the heart of the present controversy. The attached brief is submitted to show the need to resolve the question of whether a fee exacted by the government from an individual, as a condition for using its own private property, is an unconstitutional ' Nollan v. California Coastal Commission, 483 U.S. 825 (1987): First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987); MacDonald, Sommer & Frrates v. County of Yolo, 477 U.S. 340, reh’g denied, 478 U.S. 1035 (1986); Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985); San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981); Agins v. City of Tiburon, 447 U.S. 255 (1980). taking of private property when the fee is used for a legitimate public purpose but the individual does not directly, substantially or in any other reasonable and essential way contribute to the public’s need to further such a purpose. These amici sincerely believe that the accompanying brief will assist the Court be- cause our concerns are much broader than those of petitioners. Our members across the nation are faced with countless regulatory decisions on a daily basis that affect the use of privately held land. The vast majority of these decisions come from local govern- ments and, as pointed out in the accompanying brief, some of these decisions do not respect the constitu- tionally protected property rights of individuals. While petitioner focuses its arguments on the harm the City of Sacramento inflicts on its concerns, our brief ad- dresses the broader mandates of takings law that should be applied against those government decisions that abuse private rights and cites authorities differ- ent from those in petitioner’s brief. For the above reasons, this Motion should be granted. Respectfully submitted, WILLIAM H. ETHIER CoHN & BIRNBAUM, P.C. 100 Pearl Street Hartford, CT 06103-4500 (293) 493-2200 Counsel for Amici April 22, 1992 TABLE OF CONTENTS TAA OE RU TERED cvncncsncesssscesscensnesscssvencseses ill INTEREST OF THE AMICI CURIAE .........cccceeeeeeeees 1 WHEREL scvndinenssansoennssseneasensontenerasepnesonevensseceonesseooncssseess 1 REASONS FOR GRANTING THE WRIT ................... 4 I. THE QUESTION BEFORE THE COURT IS A SUBSTANTIAL FEDERAL QUESTION DE- SERVING OF THIS COURT’S PRE BEES VMIEAIEY xacvnccencesconenanccsaninvasncaseassnaccoasees + A. The Fifth Amendment’s Takings Clause, Which Ostensibly Prohibits Permit Con- ditions That Do Not Substantially Ad- vance Legitimate Government Interests, Is In Jeopardy Of Becoming A Useless Limitation On Government Power ......... 4 B. Sacramento’s Linkage Fee Requirement Does Not Meet The Essential Nexus Re- quirement This Court Established In Nol- lan v. California Coastal Commission, 483 Biss Se MITE thdavckiseatiincealcekntsenbarninsouns 6 Il. THIS CASE REFLECTS A LOCAL LAND USE PRACTICE THAT CLAMORS FOR THIS COURT TO REITERATE ITS ADMONITION . THAT THE GOVERNMENT MUST RESPECT THE CONSTITUTIONAL RIGHTS OF INDI- VIDUALS WHEN REGULATING PRIVATE ACTIONS PURSUANT TO ITS POLICE PUFUE MEUEED vesnsccsesnveendasesnenssissatesnassentsavesscabsascess 9 ii III. THE PROPER CONSTITUTIONAL BALANCE BETWEEN LEGISLATIVE POWER AND JU- DICIAL DEFENSE OF INDIVIDUAL RIGHTS DEMANDS THAT THIS CASE RECEIVE PLENARY CONSIDERATION BY THE SET shtsmincaminnamigntncite tia 14 \UMTTTTE. seciensnrnonstiepnsapathisisdhusinicedcisiecuasseacncs... 17 a iii TABLE OF AUTHORITIES CASES: Page Agins v. City of Tiburon, 447 U.S. 255 (1980) ..... 4 Andrus v. Allard, 444 U.S. 51 (1979) ........ ee. 5 Armstrong v. United States, 364 U.S. 40 (1960) ... 5 Berman v. Parker, 348 U.S. 26 (1954) ......... ee. 15 Collis v. City of Bloomington, 246 N.W.2d 19 (Minn. icekalicitarcrsnunseiaiedealacabulinnliaaccudbesseereiies 11 Commercial Builders of Northern California v. City of Sacramento, 941 F.2d 872 (9th Cir. 1991). 7,8 First English Evangelical Lutheran Church of Glen- dale v. County of Los Angeles, 482 U.S. 304 SPIT a icautink ciccdtmsaniaiidetnaseiedaulidianienatincuareaes 16 Florida Rock Industries, Inc. v. United States, 21 Sie es IE sctseniutsichentitslicawatiqusiaianténiaavenseves 4 _ Frank Ansuini, Inc. v. City of Cranston, 264 A.2d EEG UTEE 'coshaiotentinsssenniinntinabedetentiaeieusatecson 7 J.E.D. Associates, Inc. v. Town of Atkinson, 432 Sie Se ES FED Ubicrhantecscanphtadébentencenssnriesess 12 Keystone Bituminous Coal Association v. De- Benedictis, 480 U.S. 470 (1987) ........ce eee 4 Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. Be IIIT ca lonicnaaslatlsscinahuconetinknciuonencemeumenieneatsinsss 4,5 Nollan v. California Coastal Commission, 483 U.S. EE ITD cuhsinaciusdiehincudinshiaorenaslancanstnaatannensiniages passim Penn Central Transportation Co. v. City of New York, 488 U.S. 104, 147 (1978) .........c.ccccccceees 16 Pennell v. City of San Jose, 485 U.S. 1 (1988) ..... 15 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 SIU: sisicsciabbivtrahichdaheiaigiseiunibiieinssleibmenabeananielaaneananes 3,16 Pioneer Trust and Savings Bank v. Village of Mount Prospect, 176 N.E.2d 799 (Ill. 1961) .............. 7 Rosen v. Village of Downers Grove, 167 N.E.2d 230 Stes EE (Subaumcsacanen th lscadaateicmanbulpatonesedussdsnaabadian 7 ita eiaile a iv Table of Authorities Continued Page Seawall Associates v. City of New York, 542 N.E.2d 1059, 544 N.Y.S.2d 542, cert. denied, ___ U.S. mm» SIO S. Ct. GOO (19BB) n.ccccccccccccccccccccceceee 5 Surfside Colony. Ltd. v. California Coastal Com- mission, 226 Cal. App. 3d 1260 (1991) .......... 5 United States v. Riverside Bayview Homes, 474 U.S. SUPE MUTED Sctsissihitenanstesicnticnisininttietendasaniibiceiaesiiiantnees. 4 West Park Avenue, Inc. v. Township of Ocean, 224 oe Fe ne eee 12 Yee v. City of Escondido, CA, No. 90-1947, slip op. (U.S. April 1, 1992) cccccccccscsscccsceeees.. 4 MISCELLANEOUS: Petition for Certiorari ..............ccccccccccscsscsoseososeees... 9 Babcock, Forward to Exactions: A Controversial New Source For Municipal Funds, 50 Law & Contemp. Probiems 1, 2 (1987) o.ccccccccccoscose-s.. 10 Bauman & Ethier, Deve t Exactions and Im- pact Fees: A Survey Of American Practices, 50 Law & Contemp. Problems 51 i, a 9 Ethier & Weiss, Development Excise Taxes: An Ex- ercise In Cleverness And Imagination, 42 Land Use L. & Zoning Digest 3 (No. 2 Feb. POON