Reply Brief — Southview Associates, Ltd. v. Individual Members of the Vermont Environmental Board

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

& Bupreme Court, UX

a 2. 1 Ep

ran

NO. Ae-tare ll stice oF 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

SOUTHVIEW ASSOCIATES, LTD.,

SOUTHVIEW AT STRATTON PARTNERS,

Petitioners

Vv.

INDIVIDUAL MEMBERS OF THE VERMONT

ENVIRONMENTAL BOARD; FERDINAND BONGARTZ,

LIXI FORTNA, ARTHUR GIBB, SAMUEL LLOYD,

WILLIAM MARTINEZ, CHARLES STORROW,

STEVE WRIGHT, and the CHAIRMAN OF THE

ENVIRONMENTAL BOARD, ELIZABETH COURTNEY,

Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

REPLY BRIEF FOR PETITIONERS

A. JAY KENLAN, Esq.

Counsel of Record

ABELL, KENLAN, SCHWIEBERT & HALL, P.C.

71 Allen Street

Rutland, VT 05702-0578

(802) 773-3300

Attorneys for Petitioners

Southview Associates, Ltd.,

Southview at Stratton Partners

TABLE OF CONTENTS

TAREE Si AAT ens in ee eee kee

OURO NW ER ox 595! ose a 99-8 2

[. WILLIAMSON REQUIRES BOTH "A

REASONABLE, CERTAIN AND ADEQUATE

MEANS OF COMPENSATION" AND

COMPENSATION ITSELF TO SATISFY THE

DUE PROCESS AND JUST COMPENSATION

REQUIREMENTS OF THE FIFTH

IE 60 oa yn ed eae ete 2

IT. PETITIONERS’ FILING OF A STATE COURT

COMPENSATION CLAIM DOES NOT RENDER

Slee PETTITT ww kk ew 6

if. PETITIONERS CLAIMS ARE NOT BARRED BY

THE ELEVENTH AMENDMENT ........ 8

CE er Or Lae rere 10

be |

TABLE OF AUTHORITIES

CASES Page

Collins v. Porter,

Se Ae i TD vk 4 ok Kee we ek ee 7

Eno v. City of Burlington,

125 Vt. 6, 209 A.20 499 (1965) . 2. wie es 5

Ex Parte Young,

ee eats Se COME (as 6 tsk 08 a we ce ee ee 8

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, Cal.,

ae SEs Re LEED 6y. 6s ca Oe ee 3,4,6,9

Foster v. Stafford Nat’l Bank,

ie ee ST ft. ererrcr re ee 3,4,5,6

Loretto v. Teleprompter CATV Corp..,

ee A ee AEDs 0k ae Ga ee ee 9

Lucas v. South Carolina Coastal Council,

* [oe © ©. 2). errr ree 4.9

Pennhurst State School & Hosp. v. Halderman,

Se Si LED 3s oe 88 oo a eee 9

Nollan v. California Coastal Comm’n,

Ee Shs ED kos 6 a we ee 9

Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City,

om Shake BU CEE ko ss oe ee ew 2,3,4,5,6,9

Yee v. City of Escondido,

a pe © § ot. | errr ee ree ens 3

No. 92-1273

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

SOUTHVIEW ASSOCIATES, LTD.,

SOUTHVIEW AT STRATTON PARTNERS,

Petitioners

INDIVIDUAL MEMBERS OF THE VERMONT

ENVIRONMENTAL BOARD; FERDINAND BONGARTZ,

LIXI FORTNA, ARTHUR GIBB, SAMUEL LLOYD,

WILLIAM MARTINEZ, CHARLES STORROW,

STEVE WRIGHT, and the CHAIRMAN OF THE

ENVIRONMENTAL BOARD, ELIZABETH COURTNEY,

Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

REPLY BRIEF FOR PETITIONERS

Although much of Respondents’ Brief is conclusory and does not

warrant reply, several of the arguments advanced by Respondents

evidence a fundamental misunderstanding of constitutional principles

which have been established by this Court, but which have been

abridged or largely ignored by Respondents and by the Court of

Appeals. Left uncorrected, the direction in which the decision of the

Court of Appeals below leads takings jurisprudence will only result

in more confusion, more controversy, and the further erosion of

constitutionally-protected property rights.

POINTS IN REPLY

I. WILLIAMSON REQUIRES BOTH "A REASONABLE,

CERTAIN AND ADEQUATE MEANS OF

COMPENSATION" AND COMPENSATION ITSELF TO

SATISFY THE DUE PROCESS AND _ JUST

COMPENSATION REQUIREMENTS OF THE FIFTH

AMENDMENT.

Respondents’ assertion, that "no constitutional violation occurs

until just compensation has been denied", Pet. Brief at 12, reads too

littke and too much into the Court’s decision in Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985). It is evident that neither Respondents nor the

Court of Appeals recognize that the Court, in Williamson, establishes

a two-part analysis to determine whether the Just Compensation

clause has been satisfied. The Williamson analysis begins with a

determination of whether a "‘reasonable, certain and adequate

provision for obtaining compensation’ exist at the time of the

taking", id. at 194, to compensate the property owner whose

property has been taken. Only when it is determined that a

"reasonable, certain and adequate provision" for obtaining

compensation has been provided does the analysis turn to whether

compensation has, in fact, been paid. Only then does the Court in

Williamson conclude that "the property owner cannot claim a

violation of the Just Compensation Clause until it has used the

procedure and been denied just compensation." /d. at 195.

Although not expressly stated in its decision, it is evident that the

Court, in Williamson, viewed the Just Compensation clause as

having both a substantive component and a procedural component;

substantive to the extent that a "reasonable, certain and adequate"

means of obtaining compensation must be provided, procedural to

the extent that the property owner who has suffered a taking must

—

seek compensation in accordance with such procedures. The

availability of a "reasonable, certain and adequate" procedure to

obtain compensation is as important to the concept of Just

Compensation as the compensation itself.

The Court’s decisions in First English Evangelical Lutheran

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

(1987) and Williamson, and the Vermont Supreme Court’s decision

in Foster v. Stafford Nat’l Bank, 57 Vt. 128, 5 A. 890 (1894), are

easily reconcilable and clearly consistent with respect to the

substantive and procedural components of the Williamson analysis.

In Williamson, the Court required that compensation must be

provided pursuant to a reasonable, certain and adequate procedure.

Although Williamson tells us that a taking has not occurred until

compensation has been denied, the Court in First English concludes

that, under the self activating character of the Just Compensation

clause, no property owner whose property has been taken can be

In their Brief, Respondents state that "[a]t no time did Southview

ever argue below that Vermont's alleged failure to provide a process was

itself a denial of "Due Process and Just Compensation." Resp. Brief at 10.

Not only do Respondents misstate the record (see, e.g., Pet. App. F22,

¢101), they ignore this Court's pronouncement in Yee v. City of Escondido,

118 L. Ed. 2d 153 (1992) that "it is the petitioner himself who controls the

scope of the question presented. The petitioner can generally frame the

question as broadly or as narrowly as he sees fit." Yee, 118 L. Ed. 2d at

170. From the filing of the Complaint to the filing of the Petition,

Petitioners have consistently and steadfastly maintained that Respondents

actions have deprived them of their substantive Due Process rights

guaranteed under the Fifth Amendment. It is Respondents’ fundamental

misunderstanding of the constitutional concept of substantive Due Process.

and not any defect in Petitioners’ pleadings, which appears to confuse

Respondents about the nature of Petitioners’ claims.

denied compensation’ (assuming that the governmental action does

not come within the nuisance exception addressed by this Court in

Lucas v. South Carolina Coastal Council, 120 L. Ed. 2d 798

(1992)). It is evident that Williamson’s reference to a ‘denial of

compensation’ which would give rise to a taking is not necessarily

limited to a procedural denial of compensation, since a procedural

denial of compensation could not occur under the Court’s rationale

in First English. Read together, Williamson and First English

establish that the failure to provide a reasonable, certain and

adequate means of compensation is the effective equivalent of a

substantive denial of compensation, and a substantive violation of the

rights guaranteed to Petitioners under the Fifth Amendment.

Williamson and Foster are in complete accord; Foster effectively

While First English is often relied upon for the proposition that

compensation, not invalidation, is the appropriate remedy for a regulatory

taking, it is evident that the Court in First English did not intend to

preclude invalidation as a remedy for a constitutionally-defective law or act.

First English, 482 U.S. at 319. While, as Respondents observe, "[i]f

Vermont’s administration of Act 250 results in a taking, Vermont may

choose to pay just compensation. Or, Vermont may choose to limit Act

250 so as never to cause a taking", Resp. Brief at 14, Vermont need only

make its choice "[o]nce a court has determined that a taking has occurred".

First English, 482 U.S. at 321. Petitioners are asking the Court to make

the constitutional determination that Respondents’ actions in this case have

resulted in a taking of Petitioners’ property in violation of both the Due

Process and Just Compensation provisions of the Fifth Amendment. Once

that determination has been made, Vermont must then make its election

with respect to any future application of Criterion 8 of Act 250 to the

Southview Property.

applies the Williamson analysis by striking down as constitutionally

defective a state law which results in a taking but does not provide

a ’reasonable, certain and adequate’ means of compensation.’

The Court of Appeals, in its decision below, confirms that no

Statutory compensation remedy for Respondents’ taking of

Petitioners’ property exists under Vermont law. Instead, the Court

of Appeals and Respondents maintain that Article 2 of the Vermont

Constitution provides to Petitioners whatever "remedy" is available

under Vermont law. Foster tells us, however, that in Vermont, the

remedy for a law which effects a taking of property but does not

provide a compensation remedy is invalidation, not compensation,

and neither Judge Oakes nor Respondents offer any contrary

authority.*

Petitioners do not contend that the Vermont Supreme Court, in

Foster, was clairvoyant and anticipated the Court’s decision in Williamson,

only that the constitutional premise upon which the "century old" Foster

decision was based is entirely consistent with the modern view of this Court

in Williamson.

* While, as Respondents observe, Foster is a “century old" case,

neither Respondents nor the Court of Appeals cite any authority which

indicates a modification of the court’s decision in Foster that "any

legislative act authorizing . . . an appropriation [of private property]. . .

which does not provide for compensation, is plainly in conflict with the

Constitution." Foster, 57 Vt. at 133, 5 A. at 895. Respondents’ citation

to Eno v. City of Burlington, 125 Vt. 8, 209 A.2d 499 (1965), as authority

for the proposition that "the common law provides the machinery to secure

full vindication of rights provided by the Vermont Constitution", Brief at

12, conveniently overlooks the fact that the reference in Eno to the

availability of "common law machinery" refers specifically and exclusively

to remedies available under § 28 of Chapter II of the Vermont Constitution

(relating to access to the courts). Eno, 125 Vt. at 16, 209 A.2d at 506.

Nothing in Eno suggests any intent to modify the Court's holding in Foster,

that it was unnecessary "to decide whether, upon the facts stated, the use

for which the orator was authorized to appropriate the property, was public

Accordingly, no compensation is available to Petitioners under

Vermont law, and both Foster and Williamson mandate the

invalidation of Respondents’ application of Criterion 8 of Act 250 to

future applications for development of the Southview Property.

II. PETITIONERS’ FILING OF A STATE COURT

COMPENSATION CLAIM DOES NOT RENDER THIS

PETITION MOOT.

Respondents argue that the filing by Petitioners of a compensation

claim in the Vermont Superior Court somehow renders moot the

continuation of Petitioners’ action to enjoin Respondents’

unconstitutional application of Criterion 8 of Act 250. What

Respondents steadfastly refuse to acknowledge, however, is that, for

almost eight years, Respondents’ actions have deprived Petitioners

of their constitutionally-protected property rights in violation of both

the Due Process and Just Compensation provisions of the Fifth

Amendment. In their federal court complaint, Petitioners have

sought invalidation of Respondents’ application of Criterion 8 of Act

250, however, "[iJnvalidation . . . after this period of time, though

converting the taking into a ‘temporary’ one, is not a sufficient

remedy to meet the demands of the Just Compensation Clause."

First English, 482 U.S. at 319. Petitioners have brought their state

court compensation claims against Respondents not pursuant to any

state compensation remedy (since no such remedy exists), but under

the "self-executing character of the constitutional provision with

respect to compensation", id. at 315, to recover compensation for the

effects of Respondents’ unconstitutional application of Criterion 8 of

Act 250.

use or not; as the failure to make compensation or to give such security for

its payment, as the law requires, rendered the act unconstitutional." Foster,

57 Vt. at 134, 5 A. at 896. Foster may be old law, but it is good law!

It is Petitioners’ hope and belief that this Court will grant their

Petition and determine that the actions of Respondents have resulted

in a constitutionally impermissible taking of Petitioners’ property.

Time is passing, however, and to avoid any argument by

Respondents that Petitioners have failed to perfect their compensation

claims against Respondents within applicable statutes of limitation,

Petitioners filed their state court compensation claim in anticipation

of a decision of this Court.* While the filing of the State court

action by Petitioners may appear to the Court to be presumptuous,

Petitioners submit that, under the circumstances of this case, the

decision to file their State court claims prior to a decision by this

Court was simply prudent.

Here, the relief sought by Petitioners is exclusively declaratory

and injunctive in nature, and is of an entirely different character than

Petitioners’ state court compensation claim. Petitioners seek from

this Court a determination that the actions of Respondents are

constitutionally impermissible. Such a determination will make the

state court compensation claim filed by Petitioners "a living and not

a hypothetical controversy." Collins v. Porter, 328 U.S. 46, 49

(1946). While, as the Court observes in Collins, it is "powerless to

decide a case if its decision ‘cannot affect the rights of the litigant

before it’", id. at 48, here, as in Collins, a decision by the Court on

Petitioners’ claims will clearly "affect the rights" of Petitioners and

Respondents.

* It is noteworthy that Petitioners and Respondents have, by agreement,

advised the state court in which the compensation claim was filed to stay

any further action on the state court compensation claim until this Court

makes a determination with respect to this Petition.

Il. PETITIONERS’ CLAIMS ARE NOT BARRED BY

THE ELEVENTH AMENDMENT.

The record of this case, the decision of the Court of Appeals and

the Brief of Respondents leave no doubt that any Act 250 Permit for

any future development of the Southview Property will require the

applicant to forego any development which might exclude deer from

the Southview Property. Moreover, as the record clearly

demonstrates, any future development of the Southview Property

requiring an Act 250 permit will only be approved by Respondents

for the portion of the Southview Property other than the 44 acres of

deeryard.

Petitioners’ claims for declaratory and injunctive relief against

Respondents, to prevent them from acting in their official capacity

and under color of State law to deprive Petitioners of their

constitutional rights, have long been recognized by this Court as

appropriate and consistent with the Eleventh Amendment. In Ex

Parte Young, 209 U.S. 123 (1908), the Court held that “individuals

who, as officers of the state, are clothed with some duty in regard

to the enforcement of the laws of the state, and who threaten . . . an

unconstitutional act, violating the Federal Constitution, may be

enjoined by a Federal court of equity from such action." /d. at 155-

56. Here, as in Ex Parte Young, Respondents have acted (and have

evidenced their intent to continue to act) in their official capacity, as

members of the Vermont Environmental Board, to apply Criterion

8 of Act 250 to prevent any development which would cause the

deer to be excluded from the Southview Property, and to require that

half of the Southview Property be maintained in its natural state as

a condition of the development of any other portion of the Southview

Property.

In their brief, Respondents, relying on Pennhvrst State School &

Hosp. v. Halderman, 465 U.S. 89 (1984), contend that the Eleventh

Amendment requires that Vermont retain the "sovereign right to . .

. administer its own laws", Resp. Brief at 14, and assert that

Petitioners’ action seeks to “instruct[] state officials on how to

conform their conduct to state law". Jd. at 106°. The Court in

Pennhurst, however, recognized an important exception to this

general rule: that "a suit challenging the constitutionality of a state

official’s action is not one against the State", id. at 102, and

observed that while "[t}his rationale . . created the “well recognized

irony’ that an official’s unconstitutional conduct constitutes state

action under the Fourteenth Amendment but not the Eleventh

Amendment . . . [t]he Young doctrine has been accepted as

necessary to permit the federal courts to vindicate federal rights and

hold state officials responsible to the ‘supreme authority’ of the

United States." /d. at 104-05. Here, Petitioners seek only to have

Respondents conform their conduct to the Federal Constitution,

under principles established by this Court in First English, Loretto,

Williamson, Nollan and Lucas.

* In their Brief to the Court of Appeals, Respondents maintain that the

"Eleventh Amendment precludes a federal court from instructing a State on

the interpretation and administration of State law in the absence of a

constitutional infirmity." (Defendants’ Brief at 39-40) It is the

constitutional infirmity of Respondents’ actions which is central to this case

and which distinguish Petitioners’ claims from claims which might

otherwise contravene the Eleventh Amendment, and the only "instruction"

which Petitioners seek is to have Respondents comply with the Federal

Constitution.

CONCLUSION

For the reasons cited in the Petition and this Reply Brief, the

Petition for a Writ of Certiorari should be granted.

DATED: March 5, 1993