# Petition for Writ of Certiorari — Woodbury Place Partners v. City of Woodbury

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 960

## Text

In the
Supreme Court of the United States
October Term, 1992

WOODBURY PLACE PARTNERS,
a Minnesota general partnership,

2, toenp °
Pevutuionel

CITY OF WOODBURY

a Minnesota Municipal Corporation,

4 ’ f
at SP nmaeni

PETITION FOR A WRIT OF CERTIORARI
THE STATE OF MINNESOTA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

‘Gerald S. Duffy

Anthony J. Gleeke!l

SIEGEL, BRILL, GRE|
DUFFY, P.A

100 Washington Avenus

1300 Washington Square

Minneapolis, Minnesota

612) 339-713]
{ttorneyv for Petitioner

*Counsel of Record

Bachman Legal Printing, 835 Second Ave. So., Mpls MN 55402
@ FAX 612-337-8053

QUESTION PRESENTED

DOES A TEMPORARY DEVELOPMENT
MORATORIUM THAT DENIES A
LANDOWNER ALL ECONOMICALLY VIABLE
USE OF ITS LAND DURING THE
MORATORIUM CONSTITUTE A
CATEGORICAL COMPENSABLE TAKING
UNDER THE FIFTH AMENDMENT OF THI
UNITED STATES CONSTITUTION?

THE PARTIES

Petitioner is a Minnesota General Partnership.

Respondent is a Minnesota Municipal Corporation.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........

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lll

TABLE OF AUTHORITIES

CASES:

Agins v. Tiburon,

447 U.S. 255 (19

Chicago BO&R Co. v. Chicago,
166 U.S. 226, 41 L.Ed. 979,
17 S.Ct. 581 (1897)

First English Evangelical Church
of Glendale v.
Los Angeles, 482
Sp is Pe rrr are

Keystone Bituminous Coal
Association Vv.
480 U.S. 470 (1987) ....

Lucas v. South Carolina Coastal
‘t. 2886 (1992)

Council, |

Penn Central Transportation
pene V.
438 U.S. 104 (

Pennsylvania Coal v.
260 U.S. 393.

County of

DeBenedictis,

City And New York,

415 (1922)

= ye 6s 2 are Fe

MISCELLANEOUS:

Bozung and Alessi, Recent Developments in
Environmental Preservation
and Rights of Property Owners,
The Urban Lawyer Vol. 20, No. 4
(eee eer eee ee ee ee eee

Michelman, Property, Utility and Fairness:
Comments on the Ethical Foundations
of "Just Compensation" Law,
80 Harv. L. Rev. 1165, 1192 (1967) .......

Sax, Takings and the Police Power,
74 Yale LJ. 36, 60 (1964) ..............

Williams, Smith, Siemon, Mandelker
& Babcock, The White River
Junction Manifesto, Vermont Law
Review, Vol. 9, No. 2 (1984) ...........

In the
SUPREME COURT OF THE UNITED STATES
October Term, 1992

WOODBURY PLACE PARTNERS,
a Minnesota General Partnership
Petitioner,

VS.
CITY OF WOODBURY,

a Minnesota Municipal Corporation
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES SUPREME COURT TO THE
STATE OF MINNESOTA COURT OF APPEALS

Petitioner respectfully asks that a Writ of Certiorari
issue to review the decision of the State of Minnesota
Court of Appeals filed on November 17, 1992.
Discretionary review was denied by the Minnesota
Supreme Court in an Order filed January 15, 1993.

OPINIONS BELOW

The Minnesota Supreme Court’s Order denying
review of the Minnesota Court of Appeals Decision is
unreported. The decision of the Minnesota Court of
Appeals is reported at 492 N.W.2d 258 (Minn. Ct. App.
1993). The Findings of Fact, Conclusions of Law and
Order for judgment of the State District Court are not
reported. The Minnesota Supreme Court’s Order, Court
of Appeal’s decision and State District Court’s Findings of
Fact, Conclusions of Law, Order for Judgment and
Judgment are reprinted in the Appendix and are cited
herein as App. A-1 through App. A-38.

JURISDICTION

The Minnesota Supreme Court’s Order denying
review of the Minnesota Court of Appeals decision was
filed on January 15, 1993. This Court has jurisdiction to
review the Minnesota Court of Appeals decision by Writ
of Certiorari pursuant to 28 U.S.C. §1257.

STATUTES AND RULES INVOLVED
U.S. Const. Amend. V:

No person shall be held to answer for a
capital, or otherwise infamous crime, unless
On a presentment or indictment of a Grand
Jury, except in cases arising in the land or
naval forces, or in the Militia, when in
actual service in time of War or public
danger; nor shall any person be subject for
the same offence to be twice put in jeopardy

5

of life or limb; nor shall be compelled in
any criminal case to be a witness against
himself, nor be deprived of life, liberty, or
property, without due process of law; nor
shall private property be taken for public
use, without just compensation.

STATEMENT OF THE CASE

This Petition presents the question of whether an
interim development moratorium, which denies a property
owner all economically viable use of its property, consti-
tutes a categorical compensable taking under the Fifth
Amendment of the United States Constitution.

At all relevant times, Petitioner was the owner of
thirteen acres of vacant, unimproved property within
Respondent’s corporate boundaries ("Property"). In
February 1988, Petitioner submitted an application to
Respondent for approval of a commercial development on
the Property. Respondent tabled the Petitioner’s develop-
ment application and requested that Petitioner submit a
revised development plan consistent with proposed
roadway improvements adjacent to the Property.
(Stipulated Findings of Fact (Petitioner’s version) no. 19.)
Petitioner revised its development application § to
accommodate the Respondent’s proposed redesign of
adjacent roadways. (Stipulated Findings of Fact
(Petitioner’s version) no. 19.)

On March 23, 1988, Respondent adopted a six-
month moratorium ("Moratorium") on development of
property including Petitioner’s Property. The Moratorium
States, in part:

No application for subdivision approval, site
plan review, amendments to the comprehen-
sive plan or rezoning should be accepted or
considered in the area designated herein
during the time that this ordinance is in

effect.

he Moratorium included a provision allowing a landown
er to apply for a variance.

On June 8, 1988, the Respondent made its final
decision on Petitioner’s application by tabling all further
action on the application until termination of the
Moratorium. Respondent also denied Petitioner's request
for a variance from the Moratorium. (Stipulated Findings
of Fact (Petitioner’s version) no. 36.)

On three separate occasions, the Respondent
extended the Moratorium for consecutive six-month terms.
(Stipulated Findings of Fact (Petitioner’s version) no. 41.)

On February 22, 1989, Respondent denied Peti-
tioner’s second request for a variance from the Moratori-
um. (Stipulated Findings of Fact (Petitioner's version) no.
41.) The Moratorium was terminated on March 23, 1990,
two years to the day from its adoption.

Petitioner sought an Alternative Writ of Mandamus
in July 1988, directing Respondent to institute condemna-
tion proceedings for a temporary taking of the Property
during the two-year Moratorium. In order to avoid a
lengthy trial, the parties stipulated to findings of fact,
including that Petitioner was denied all economically
viable use of the Property for the two years the

Moratorium was in effect. (Stipulated Findings of Fact
(Petitioner’s Version) no. 47).!

The state District Court heard oral argument on
the sole issue in the case: whether the Moratorium
constituted a compensable temporary taking of the
Property. The District Court ruled that the Moratorium
effected a compensable temporary taking (App. A 2-3).
The District Court’s decision was based on this Court’s
holdings in First English Evangelical Church of Glendale v.
County of Los Angeles, 482 U.S. 304 (1987), and Agins v.
Tiburon, 447 U.S. 255 (1980) (App. A-6).

Respondent appealed the District Court’s decision
to the Minnesota Court of Appeals. The Court ol
Appeals reversed the District Court. The Minnesota
Supreme Court denied discretionary review of the
Minnesota Court of Appeals’ decision.

Citing Lucas v. South Carolina Coastal Council, 112
S.Ct. 2886 (1992), the Minnesota Court of Appeals
recognized that a "categorical taking" occurs when a
regulation “denies all economically beneficial or
productive use of land,” but nevertheless held that a two-
year loss of use did not rise to the level of a categorical
taking.” The Minnesota Court of Appeal held that:

‘In Agins v. Tiburon, 447 U.S. 255, 260 (1980), this Court held that
the Fifth Amendment is violated when land-use regulation “does not
substantially advance legitimate state interests or denies an owner

economically viable use of his land" (emphasis added)

“The Court of Appeals remanded the case to the District Court for
submittal of evidence to determine if the Moratorium effecied a taking
pursuant to the factors set forth in Penn Central Transportation

When measured against the value of the
property as a whole, rather than against
only a two-year time frame, the moratorium
did not deny the partnership “all
economically viable use" of its property.

(App. A-33-34)

The Court of Appeals acknowledged that no case
specifically addressed the dimension of time as it applies
to the totality of a taking. The Court of Appeals
determined that loss of present use did not constitute
denial of all economically viable use as defined in Lucas
v. South Carolina Coastal Council, because the Property
had future use.

REASONS FOR GRANTING THE WRIT

SUMMARY

In 1922, Justice Oliver Wendell Holmes originated
the concept that government regulation, like physicai
appropriation, may effect a Fifth Amendment taking of

property:
while property may be regulated to a certain
extent, if it goes too far it will be recognized

as a taking.

Pennsylvania Coal v. Mahon, 260 U.S. 393, 415 (1922).

Company v. City of New York, 438 U.S. 104 (1978)

This Court has painstakingly sought to define
Holmes’ pronouncement in recent years. Lucas v. South
Carolina Coastal Counsel, 112 S. Ct. 2886 (1992);° First
English Evangelical Church of Glendale v. County of Los
Angeles, 482 U.S. 304 (1987); Keystone Bituminous Coal
Association v. DeBenedictis, 480 U.S. 470 (1987); Agtiis v.
City of Tiburon, 447 U.S. 255 (1980) and Penn Central
Transportation Company v. City of New York, 438 U.S. 104
(1978). Those cases provided the Court with the
opportunity to offer "insight into when, and under what
circumstances, a given regulation would be seen as going
‘too far’ for purposes of the Fifth Amendment." Lucas,
113 S.Ct. at 2893.

The issue presented in this Petition naturally
follows previous regulatory taking cases as it will provide
equally important "insight" into when and under what
circumstances a regulation effects a temporary taking. This
Petition presents the Court with a question that has never
been before the Court. Specifically, this Petition gives the
Court the opportunity to decide whether a temporary
regulation which denies a property owner all present
economic use of its property, constitutes a categorical
taking as defined in Lucas v. South Carolina Coastal
Council.

The issue is squarely presented as a matter of law
because the parties stipulated that the two-year
Moratorium denied Petitioner all economically viable use
of the Property for two years. (Stipulated Findings of Fact
(Petitioner's Version) no. 47). Presented with that

The Lucas v. South Carolina Coastal Council decision was issued
during the briefing schedule before Minnesota Court of Appeals

5

stipulation, the Minnesota Court of Appeals held that no
compensable temporary taking occurred. The Court of
Appeals held that denial of all economically viable use of
property, for a definite period of time, does not constitute
a taking because the economic burden must be measured
against the value of the Property “as a whole,” not just the
two-year segment of time (App. A-33). The Minnesota
Court of Appeals based its decision on Penn Central
Transportation Company, 438 U.S. at 130-131 and Keystone
Bituminous Coal Association v. DeBenedictis, cases pre
dating both Lucas v. South Carolina Coastal Council and
First English Evangelical Lutheran Church of Glendale \
County of Los Angeles.

This Court has not defined the "property interest
against which the loss of value is to be measured. While
that question remains unclear as to severance of physical
segments of property, the Court has never spoken to the
issue Of whether the temporal strand of the bundle of
rights that compose property should be isolated for the
purpose of determining whether denial of all economically

viable use occurs.

With widespread use of governmental growth
management techniques (1.e., moratoria), which are
designed to stop or stall development, the novel issue
presented in this Petition is timely, and of vital importance
and great interest to all landowners and_ planning

authorities.

The Decision Of The Minnesota Court Of Appeals
Raises An Important Question Of Federal Law
Which Should Be Settled By This Court Without Delay

In Keystone Bituminous Coal Association \
DeBenedictis, First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, and Lucas v. South
Carolina Coastal Council, petitions for certiorari were
yranted because of the novelty and importance of the
questions presented as they related to the Court's desire
to define when and under what circumstances a regulation
effects a taking under the Fifth Amendment to the
Constitution.’ The issue presented here is_ both
unresolved and novel, and as important as those presented
in Keystone Bituminous Coal Association v. DeBenedictts,
First English Evangelical Lutheran Church of Glendale
County of Los Angeles and Lucas v. South Carolina Coastal

Council.

In order to answer whether a moratorium
constitutes a compensable temporary taking,’ tne Court
must define the "property interest” against which the loss
in value resulting from the regulation is to be measured.
With temporary regulations the Court must consider
whether present use and future uses are separate SI

in the bundle of rights that compose property, or whether

“The Fifth Amendment (takings clause) provides “nor shall privat
property be taken for public use, without just compensation’ and 1
applies to the states through the Fourteenth Amendment. See ¢ hicage

BOAR Co. v. Chicago. 166 U.S. 226, 41 L.Ed. 979, 17 S.Ct. 581 (189
~

, Ss '
they are to be viewed together.” No case has addressed
a regulation’s duration as it applies to the totality of a
taking.

While the Court has never faced the issue regarding
segmentation of time as a component of property for
regulatory takings analysis, there appears to be no
consensus on the issue of segmentation of physical
segments of property versus defining the "parcel as a
whole."’ Penn Central Transportation Company, 438 U.S.
at 130-131 (1978). Segmentation of the physical strand that
composes a parcel of property was first addressed in Penn
Central Transportation Company v. New York:

"Taking" jurisprudence does not divide a
single parcel into discrete segments and
attempt to determine whether rights in a
particular segment have been entirely

‘This issue has ignited great debate amongst land-use scholars. See,
Sax, Takings and the Police Power, 74 Yale LJ. 36, 60 (1964);
Michelman, Property, Utility and Fairness: Comments on the Ethical
Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1192
(1967); Bozung and Alessi, Recent Developments in Environmental
Preservation and Rights of Property Owners, The Urban Lawyer Vol.
20, No. 4 (1988); Williams, Smith, Siemon, Mandelker & Babcock, The
White River Junction Manifesto, Vermont Law Review, Vol. 9, No. 2
(1984).

°In Penn Central Transportation Company v. New York, the dissent
did not agree with the "parcel as a whole" formulation. In response to
the Court’s formulation the dissent opined that "the Court must define
the particular property unit that should be examined.” Penn Central
Transportation Company, 438 U.S. at 149, n. 13 (Rehnquist J.,
dissenting).

10

abrogated. In deciding whether a particular
governmental action has effected a taking,
this Court focuses rather both on the
character of the action and on the nature of
the interference with rights in the parcel as
a whole...

Penn Central v. Transportation Company, 438 U.S. at 130-
131.

The Court in Keystone Bituminous Coal Association
v. DeBenedictis, focused on defining "property interest.” In
that case, the Court held that the Pennsylvania Subsidence
Act, which prohibited the mining of more than 50 percent
of coal beneath public buildings, dwellings or cemeteries,
did not constitute a facial taking. Just as the Minnesota
Court of Appeals broadly defined the temporal strand in
this case, the Court broadly defined physical segments of
property, ultimately holding that "as a whole" the owner
had not been denied all economically viable use because
it had use of a portion of the property. Keystone
Bituminous Coal Association, 480 U.S. at 497, quoting,
Penn Central Transportation Company, 438 U.S. at 130-131.

The dissent in Keystone Bituminous Coal Association
v. DeBenedictis opposed the Court’s perpetuation of the
Penn Central Transportation Company "parcel as a whole”
formulation. Recognizing the vagueness of the Penn
Central Transportation Company "parcel as a whole’
language, the dissent concluded:

The Court gave no guidance on how one Is

to distinguish a "discrete segment’ from a
single parcel.

tt CC

Keystone Bituminous Coal Association, 480 U.S. at 517, n.
S (Rehnquist J., dissenting).

In the same term, the Court decided the seminal
case ON a property owner’s right to compensation for
temporary taking of property. See; First English
Evangelical Lutheran Church of Glendale v. County of Los
Angeles. The Court held that where the governmental
regulation works a taking of all use of property, no
subsequent action relieves the government of the duty to
compensate the landowner for the period during which the
taking was effective. First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, provides
support for the State District Court’s holding in this case
(that the Moratorium effected a compensable taking), but
did not present the Court with the opportunity to
determine whether the temporal strand of property is to
be severed when defining the "property interest" that has
been denied use as a result of government regulation.’

"Justice Stevens, in his First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, dissent, recognized that treatment
of the temporal strand of property was an issue that needed
clarification:

Regulations are three-dimensional; they have depth,
width and length ... Finally, and for purposes of this
case, essentially, regulations set forth the duration of
the restrictions. It is obvious that no one of these
elements can be analyzed alone to evaluate the impact
of the regulation, and hence to determine whether a
taking has occurred

First English Evangelical Lutheran Church of Glendale, 482 U.S. at 330
(Stevens J., dissenting)

In Lucas v. South Carolina Coastal Council, the
Court again recognized the need to clarify what constitutes
"property interest" for regulatory taking purposes. The
Lucas v. South Carolina Coastal Council Court promulgat-
ed a per se categorical rule that a regulation which denies
a landowner economically viable use of its land effects a
compensable taking without case-specific inquiry or
balancing of public interest advanced in support of the
regulation. While committing to a categorical rule, it
appears the Court believed that the definition of "property
interest" remains unclear:

Regrettably, the rhetorical force of our
"deprivation of all economically feasible use"
rule is greater than its precision, since the
rule does not make clear the ‘property
interest’ against which the loss of value is to
be measured.

Lucas, 112 S.Ct. at 2894 n.7.

By this footnote, the Court appears to recognize that it
has only taken Justice Holmes’ proclamation so far, and
that further insight into when and under what
circumstances a regulation effects a compensable taking is
needed. This is especially true of temporary regulations.

Unless the Court defines "property interest” in the
temporary regulatory taking context, lower federal and
state courts may erode the constitutional principles pro-
mulgated by this Court since Pennsylvania Coal v. Mahon.
Moreover, the categorical formulation set forth in Lucas
v. South Carolina Coastal Council and the mandate for
compensation promulgated in First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles will
be more difficult to apply.

Resolution of the issue presented in this Petition
will provide foundation for future courts to rely on to
determine whether temporary regulations’ effect
compensable takings. Most temporary regulations are
accomplished through the use of growth management
regulations. The government’s right to regulate property
and a property owner’s right to use its property directly
conflict when government utilizes growth management
controls such as the Moratorium. Traditional subdivision
and zoning regulations regulate use and density. Growth
management controls are three-dimensional because they
add timing to the regulation.

As a result of growth management controls,
landowners are forced to maintain the status quo for sake
of the community as whole. When there are no uses of
property regulated by growth management regulations, the
result, as in this case, may be denial of all present use of
the property. This case presents the Court with the
opportunity to define whether such loss of present use is

compensable.

Perpetuation of the constitutional protections
granted to property owners by the Takings Clause will
exist only if the "property interest" to be measured against
the loss in value is defined. The Court has never been
presented the case in which it can define the relevant
property interest. The posture of this case presents the
Court with the opportunity to finally decide the issue, an
opportunity the Court has desired since Pennsylvania Coal

I
c

19909

Mahon. in 1922.

CONCLUSION

Just as with any police power regulation, the
underlying inquiry to determine compensability under the
takings clause is whether "some people bear public
burdens which in all fairness and justice, should be borne
by the public as a whole." First English Evangelical
Lutheran Church of Glendale, 482 U.S. at 318. This Court
has painstakingly balanced those interests in promulgating
regulatory taking jurisprudence. This case is the next in
the line of cases since Pennsylvania Coal v. Mahon, in
which the Court can define a landowner’s rights under the
Takings Clause of the Fifth Amendment.

For the reasons set forth above, a Writ of
Certiorari should be granted in this case.

Respectfully submitted,

Gerald S. Duffy, #24703

Counsel of Record

Siegel, Brill, Greupner & Duffy
Attorney for Respondent

100 Washington Avenue South
1300 Washington Square Building
Minneapolis, MN 55401

(612) 339-7131

ee

APPENDIX

Findings of Fact, Conclusions of Law
and Order for Judgment dated

Boe a) | rr A 1-7

District Court’s Order denying
Defendant’s Motion for a New Trial
and/or Motion for Amended Findings of
Fact, Conclusions of Law, Order

Se SL, 5-6 cae bo bod es ee eee es A 8-
Judgment Dated March 26, 1992 ....... .. Ald4-
Judgment Dated April 2, 1992 ........... A 1/-

Findings of Fact and Order dated
April 27, 1990 denying Defendant's

Motion for Summary Judgment ........... A 19-2

Court of Appeals’ Decision .............. A 25-:

Minnesota Supreme Court Order Denying
Petition for Review of Decision of

Sg 0 eee ee rr er re A:

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF WASHINGTON rTENTH JUDICIAI
: DISTRICT

Woodbury Place Partners, a Minnesota

general partnership, File No. CO-88-3249
Plainuft,

FINDINGS OF FACT

VS CONCLUSIONS OF LAW

ORDER AND ORDER FOR

City of Woodbury, Minnesota, JUDGMENT

a municipal corporation,
Detendant.

[he above-entitled matter came on for trial before
the undersigned, the Honorable J. E. Cass, Judge of the
above-named Court, at the Washington County
Government Center, Sillwater, Minnesota, on September
27, 1991,

Anthony J. Gleekel and Christopher Penwell
appeared on behaif of Plaintiff. Pierre N. Regnier and

James G. Golembeck appeared on behalf of Defendant.

The Court, after considering the arguments of
counsel and the memoranda submitted, and based upon
all of the files, records and proceedings herein, makes the

following:

FINDINGS OF FACT

l. The parties submitted the matter to the
Court upon two sets of stipulated facts. Each party agreed
as to the accuracy of each set of facts, but objected to the
Opposing party’s set on grounds of relevancy.

r Plaintiff's set of stipulated facts focus on the

fact that Plaintiff was denied all economically viable use
of the property from March 23, 1988 to March 23, 1990,
as the result of the City of Woodbury’s enactment of a
moratorium.
3. Defendant’s set of stipulated facts focus on
the reasonableness of the moratorium enacted by the City
of Woodbury. The Court finds the reasonableness of the
moratorium to be irrelevant.

4. Plaintiff's version of the Stipulated Findings
of Fact, attached, is incorporated herein by reference.
5. Plaintitf has not unreasonably delayed
asserting a known right to the prejudice of others.
}

Based on the foregoing, the Court makes the

following:
CONCLUSIONS OF LAW

1. Plaintiff's claim is not barred by the doctrine of

—
laches.

2. The moratorium effected a compensable

temporary taking of Plaintiffs land from March 23, 1988

A-2

to March 23, 1990.

Based on the foregoing, the Court makes the
following:

ORDER

l. A peremptory Writ of Mandamus shall issue
directing Defendant City of Woodbury to commence
condemnation proceedings against Plaintiff's property
involved herein.

2. Plaintiff is awarded its costs and disbursements.

3. Robert Beedle, C. J. Kabis, and Timothy J.
McKenzie, with James L. Currell and Robert Lafayette as
alternatives in that order, each of whom is a disinterested
person and resident of Washington County, Minnesota, are
hereby appointed as Commissioners to ascertain and
report the amount of damages that were sustained by
Plaintiff as a result of the temporary taking described
herein. The first meeting of said Commissioners shall be
held in the offices of the Court Administrator of
Washington County at the Washington County
Government Center, Stillwater, Minnesota, on January 15,
1992, at 10:00 am. The compensation of each
Commissioner is fixed at the sum of $150.00 per day.

4. The Washington County Court
Administrator shall mail a copy of this Order to the
attorneys for the above-named parties by U. S. mail. Such
mailing shall constitute due and proper service of this
Order for all purposes.

Based on the foregoing, the Court makes the
following:

ORDER FOR JUDGMENT

LET THE JUDGMENT BE ENTERED
ACCORDINGLY.

The attached Memorandum is incorporated herein

by reference.

Dated: December 16, 1991 -
Filed: December 18. 1991] J. E. Cass
Judge of District Court

MEMORANDUM

Re: Woodbury Place Partners v. City of Woodbury
Court File No. C0-88-3249

Plaintiff owns property located within the City of
Woodbury (the City). Plaintiff submitted an application
for a Special Use Permit, approval of preliminary plat, and
site plan review to the City on February 16, 1988. The
application complied with all applicable zoning and
subdivision ordinances, but was inconsistent with proposed
roadway improvements. The application was revised to be
consistent with these improvements and submitted to the
City prior to March 23, 1988. The City council, pursuant
to Minn. Stat. Sec. 462.355, subd. 4, on March 23, 1988
adopted a moratorium restricting development within a
certain area, including Plaintiff's property. Although the
moratorium provided for variances, Plaintiff was twice
denied a variance from the moratorium. The moratorium
expired on March 23, 1990. Plaintiff commenced this
action on August 1, 1988. The only remaining claim is
that the moratorium effected a temporary taking of
Plaintiff's property, requiring compensation. The parties
have stipulated that Plaintiff was denied all economically
viable use of the property from March 23, 1988 to March
23, 1990, as a result of the moratorium. The parties have
also stipulated that the moratorium was reasonable and
necessary to protect the planning process and the health,
safety, and welfare of the City’s citizens.

The United States Constitution, Amendment 5 and
Minn. Const. Art. 1, Sec. 13, state that private property
shall not be taken for public use without just
compensation. A government regulation which works a

A-5

temporary taking upon property Is treated the same as if
it had been a permanent taking; the landowner is entitled
to compensation for his loss of use during the temporary
taking. First English Evangelical Church v. Los Angeles
County, 482 U.S. 304, 318 (1987). First English involved
a situation where a building moratorium was imposed due
to flooding. The court held that, assuming the
moratorium worked a taking upon the land, Plaintiff was
entitled to compensation for that temporary taking. Id. at

a7)

~/ het het

The facts of First English are very similar to those
presented here, and Plaintiff is entitled to compensation
if the moratorium constitutes a taking. There are two
Situations in which a general zoning law can effect a
taking: (1) if the ordinance does not substantially advance
legitimate state interests; or (2) if application of the
ordinance denies the owner economically viable use of his
land. Agins v. Tiburon, 447 U.S. 255, 260 (1990);
Parranto Bros. v. City of New Brighton, 425 N.W.2d 585,
590 (Minn. Ct. App. 1988). The parties have stipulated
that the moratorium, denied Plaintiff all economically
viable use of the land. Therefore, under Agins and First
English, the moratorium worked a temporary taking of the
land for which compensation is owed.

Defendant argues that there can be no taking since
the moratorium was implemented under the City’s police
power and was reasonable in purpose, duration, and
scope. It is true that the exercise of a city’s police power
can properly limit the uses to which property can be put,
but it is also true that the exercise of such police power
constitutes a compensable taking if it deprives the
property of all reasonable use. McShane v. City of

A-6

Faribault. 292 N.W.2d 253, 257 (Minn. 1980), citing Euclid
v. Amber Realty Co., 272 U.S. 365 (1926); Thompson v.
City of Red Wing, 455 N.W.2d 512, 516 (Minn. Ct. App.
1990). Constitutional protections were designed to
compensate landowners for otherwise proper interference
with their land which amounted to a taking. First English
at 315. The moratorium here, although reasonable,
deprived Plaintiff of the use of its land, for which Plaintiff
is constitutionally required to be compensated.

Dated: December 16, 1991

J. E. Cass
Judge of District Court

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF WASHINGTON TENTH JUDICIAL
DISTRICT

Woodbury Place Partners, a
Minnesota general partnership, ORDER

Plaintiff,

City of Woodbury, Minnesota,
a municipal corporation,

Defendant.

The above-entitled matter came before the
undersigned, the Honorable J. E. Cass, Judge of the
above-named Court, at the Washington County
Government Center, Stillwater, Minnesota, on January 27,
1992.

Gerald S. Duffy, W. Christopher Penwell, and
Anthony J. Gleekel appeared on behalf of Plaintiff.
Pierre N. Regnier and James G. Golembeck appeared on
behalf of Defendant.

Based on all of the files and records herein, the
Court makes the following:

l.

ORDER

Defendant’s Motion to amend and for anew

trial is DENIED.

5

a

The parties have stipulated to stay the

proceeding pending an appeal on the liability issue. A
stay of the proceedings is GRANTED as follows:

d.

Six (6) months from the date of this Order,
Defendant City shall commence
condemnation proceedings pursuant to this
Court’s Order;

Upon commencement of the condemnation
proceedings, the parties may commence
discovery on the issue of damages;

Discovery shall be completed within four (4)
months of the filing of the Minnesota Court
of Appeals decision on the issue of liability
in this matter;

The Commissioners appointed by Order of

this Court dated December 16, 1991, are
hereby discharged from their duties as
Commissioners;

Upon receipt of this Order, Commissioner
Beedle, Kavis, and McKenzie shall submit
their bill for services incurred in attending
the swearing in ceremony to Pierre N.
Regnier, Esq., 2100 Meritor Tower, 444
Cedar Street, St. Paul, Minnesota 55101,

A-9

and such bill will then be paid by
Defendant.
3 The Washington County Court
Administrator shall serve a true and correct copy of this
Order by U. S. Mail upon counsel for the above-named
parties. Such mailing shall constitute due and proper
service of this Order for all purpose.

The attached Memorandum is made a part hereof
Dy reference.

Dated: March 9, 1992
Filed: April 3, 1992 J. E. Cass

Judge of District Court

MEMORANDUM

Re: Woodbury Place Partners v. City of Woodbury
Court File No. C0-88-3249

The parties submitted the above-entitled matter to
this Court upon stipulated facts for a determination of
liability. The Court, in Findings of Fact, Conclusions of
Law, and an Order for Judgment entered on December
18. 1991. concluded that a building moratorium enacted
by Defendant effected a compensable temporary taking of
Plaintiff's land from March 23, 1988 to March 23, 1990.
Defendant has now moved for Amended Findings of Fact,
Conclusions of Law, and Order for Judgment under Minn.
R. Civ. P. 52.02 or for a new trial under Minn. R. Civ. P.

S9.

Defendant’s first claim is that the Court erred in
finding the reasonableness of the Moratorium to be
irrelevant. Defendant claims that the Court ignored First
English Evangelical Church v. Los Angeles County, 482
U.S. 304 (1987), the First English remand, First English

3rd 1353, 258 Cal. Rptr. 893 (Cal. Ct. App. 1989), cert.
denied, 107 L. Ed. 2d 950 (1990) , and all other case law
dealing with reasonable moratoria. The logic of First
English was not lost upon this Court, it states quite clearly
that a landowner is entitled to compensation for any loss
caused by a temporary taking. Id. at 318. The court in
First English did not determine under what circumstances
a temporary taking exists; it assumed there was a taking
for purposes of its decision and remanded the case to the
state court to determine if a taking had occurred. Id. at
313. First English specifically declined to determine

A-11

whether the conclusion that a temporary taking had
occurred could be avoided by establishing that the denial
of all use was protected under the State’s authority to
enact safety regulations. Id, First English recognized that
temporary takings are no different that permanent takings,
Id, at 318, and that the Fifth Amendment is designed to
require compensation for government actions which,
although proper, amount to a taking. First English does
not make an exception for moratoria which are reasonab!e
in scope or duration, although other courts, whose
decisions are not binding upon this Court, have done so.
This Court has determined that under federal and
Minnesota law, a temporary taking occurred. Defendant
has not presented any new arguments which would cause
this Court to reverse its decision.

Defendant also argues that the court was In error
when it stated that the parties had stipulated that the
moratorium denied Plaintiff all economically viable use of
the land. Apparently Defendant is referring to a
Statement in the December 16, 1991 Memorandum where
the Court did not specifically list the dates of the taking.
It is clear from the Order and accompanying
Memorandum, however, that the Court was well aware of
the fact that Defendant did so stipulate only for the time
period of March 23, 1988 to March 23, 1990. See,
Supulated Findings of Fact (Plaintiffs version) No. 47.

Defendant argues that this Court’s decision will
require government agencies to pay every time there is
any delay in issuing a permit to develop land. This
moratorium did not involve a delay in the permitting
process, however. The moratorium restricted development
of all property in the area to allow Defendant time to

A-12

complete an access improvement study, it was not in
response to Plaintiff's development request and was not a
normal delay which Plaintiff should have expected to
occur as part of a permitting process.

Defendant’s last claim is that Plaintiffs action
should be barred by the doctrine of laches. The doctrine
of laches will bar a claim if there has been an
unreasonable delay in asserting a known right which
results in prejudice to others such that it would be
inequitable to grant the relief requested. Klapmeier v.
Town of Center, 346 N.W.2d 133 (Minn. 1984). Plaintiff
here commenced an action on August 1, 1988, alleging in
Count III that the moratorium constituted a taking. This
was only four months after the moratorium was adopted
and two months after Plaintiff had been denied a variance
from the moratorium. An Amended Complaint was
served on September 19, 1989, requesting declaratory
judgment that the moratorium was invalid. No taking was
alleged in this Amended Complaint. Plaintiff filed a Note
of Issue on February 26, 1990, certifying that the case was
ready for trial. An April 27, 1990 Order of this Court
allowed Plaintiff to file an Alternative Writ of Mandamus
and Second Amended Complaint, which re-alleged the
temporary taking claim. The Second Amended Complaint
was served on April 26, 1990. The Court finds that
Plaintiff did not unreasonably delay asserting a known
right; Defendant’s Motion is denied.

Dated: March 3, 1992 a ee ea

J. E. Cass
Judge of District Court

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF WASHINGTON PFENTH JUDICIAI
DISTRICT

Woodbury Place Partners, a
Minnesota general partnership, JUDGMENT

Plaintiff. FILE NO. CO-88-3249

Citv of Woodbury, Minnesota,

a municipal corporation,

Defendant

[he above-entitled matter came on for hearing
before the Honorable J. E. Cass, Judge of the above
named Court, on January 27, 1992, at the Washington
County Government Center, Stillwater, Minnesota.

Gerald S. Duffy, Esq., Wm. Christopher Penwell,
Esq., and Anthony J. Gleekel, Esq., appeared on behalf of
the Plaintiff. Pierre N. Regnier, Esq. and James G
Golembeck, Esq., appeared on behalf of the Defendant

Based upon the files, records and the proceedings

herein, the Court made its Order

Now. Therefore, Pursuant to said Order:

IT IS HEREBY ADJUDGED, DETERMINED
AND DECREED:

l. That Defendant’s Motion to amend and for
a new trial is DENIED.

b That the parties have stipulated to stay the
proceeding pending an appeal on the liability issue. A
stay of the proceedings is GRANTED as follows:

a. Six (6) months from the date of the Order,
Defendant City shall commence
condemnation proceedings pursuant to this
Court’s Order;

) Upon commencement of the condemnation
proceedings, the parties may commence
discovery on the issue of damages;

( Discovery shall be completed within four (4)
months of the filing of the Minnesota Court
of Appeals decision on the issue of liability
In this matter;

d lhe Commissioners appointed by Order of
this Court dated December 16, 1991, are
hereby discharged from their duties as
Commissioners;

c. Upon receipt of this Order, Commissioners
Beedle, Kabis, and McKenzie shall submit
their bill for services incurred in attending
the swearing in ceremony to Pierre N.
Regnier, Esq., 2100 Meritor Tower, 444

A-15

Cedar Street, St. Paul, Minnesota 55101,
and such bill will then be paid by
Defendant.

DATED: March 26, 1992
FILED: March 26, 1992
BY THE COURT

Court Administrator

BY

Deputy

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF WASHINGTON TENTH JUDICIAI
DISTRICT

Woodbury Place Partners, a
Minnesota general partnership,

Plaintiff, JUDGMENT

FILE NO. CO-8&-3249
City of Woodbury, Minnesota,
a municipal corporation,

Defendant

Pursuant to Judge Cass's Order dated December
16. 1991 and the Order dated January 22, 1992, on file

herein,

IT IS HEREBY ADJUDGED, DETERMINED
AND DECREED:

That a peremptory Writ of Mandamus shall issue
directing Defendant, City of Woodbury, to commence
condemnation proceedings against Plaintiffs property

involved herein.

That said condemnation proceedings are hereby

Stayed pursuant to the March 3, 1992 Order of the Court
and the March 26, 1992 Judgment.

DATED: April 2, 1992

FILED: April 3, 1992
BY THE COURT

Court Admunistrato!

BY
Deputy

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF WASHINGTON TENTH JUDICIAI
DISTRICT

Douglas M. DeCoster, Steven C. FINDINGS OF FACT

DeCoster, and Woodbury Place AND ORDER
Partners, a Minnesota general
partnership, File No. CO-88-3249

Plaintiffs.

City of Woodbury, Minnesota,
a municipal corporation,

Defendants.

The above-entitled matter came on for hearing
before the undersigned, the Honorable J. E. Cass, Judge
of the above-named Court, at the Washington County
Government Center, Stillwater, Minnesota, on April 20,
1990.

Gerald S. Duffy, Esq., appeared on behalf of
Plaintiffs. Pierre N. Regnier, Esq., and James G
Golembeck, Esq., appeared on behalf of Defendant.

Based upon all of the files, records, and

proceedings herein, the Court makes the following

FINDINGS OF FACT

a That Plainuffs owned certain commercially-
zoned property on Weir Drive, Woodbury, Minnesota, at
the northwest corner of Interstate 494 and Valley Creek
Road, as of July 29, 1988, the date of the initiation of this

CASeC.

2. That Plaintiffs desired to develop this
property and submitted an application for a preliminary
plat, site plan, and special use permit (Plan A) to
Defendant City of Woodbury in February of 1988. The
Woodbury City Council tabled this application.

3. Phat Plaintiffs revised Plan A and submitted
the revised plan (Plan B) to the Woodbury Planning
Commission and Woodbury Park Commission, botk of
whom recommended approval of Plan B in April of 1988.

4. That the Woodbury City Council passed
Ordinance 1516 on March 23, 1988, pursuant to Minn.
Stat. §462.355, subd. 4, which established a moratorium on

development along Interstate 494.

5. Phat the Woodbury City Council, on June 8,
1988. tabled Plaintift pplication for a variance from
Ordinance 1516

6. That Plaintiffs filed a Summons and
Complaint on August 1, 1988, making claims that the
Ordinance and governing statute were unconstitutional;
that the Ordinance is invalid; that the moratorium did not
apply to Plaintiffs’ property; that Defendant’s actions
violated 42 U.S.C. $1983; that Defendant’s actions

A-20

constituted a taking without just compensation; and asking
for damages and abatement of real estate taxes.

ts That Plaintiffs filed an Amended Complaint
on December 22, 1989, which dropped the claims
regarding 42 U.S.C. §1983, taking, damages, and real
estate taxes. The Amended Complaint requested only
declaratory judgment regarding the remaining claims.

8. That on December 29, 1989, Plaintiffs
Steven C. DeCoster and Douglas M. DeCoster entered
into a Purchase Agreement with Plaintiff Woodbury Place
Partners. Douglas M. DeCoster immediately conveyed all
of this interest in the subject property to Woodbury Place
Partners. Steven C. DeCoster conveyed all of his interest
in the property to Woodbury Piace Partners on January 3,
1990. Neither Steven C. DeCoster nor Douglas M.
DeCoster have any interest in the property or in
Woodbury Place Partners at this time.

9. That Ordinance 1516 expired on March 23,
1990. Defendant has moved for summary judgment,
claiming that the expiration of the Ordinance has mooted
Plaintiffs’ request for declaratory judgment.

10). That Plaintiffs’ request for declaratory
judgment is moot.

11. That Plaintiffs have moved for leave to file
an Alternative Writ of Mandamus and Second Amended
Complaint, which re-asserts the 42 U.S.C. $1983, taking,
damages, and real estate taxes claims.

12 That no prejudice will result to Defendant
t A

A-2]

by allowing Plaintiffs to amend their Complaint.

Based upon the foregoing, the Court makes the
following:

ORDER
l. That Defendant’s Motion for summary
judgment is DENIED.
é That Plaintiffs’ Motion to file an Alternative

Writ of Mandamus and Second Amended Complaint 1s
GRANTED.

a That Plaintiffs’ Motion to delete Douglas M.
DeCoster and Steven C. DeCoster as Plaintiffs is
GRANTED. The new caption shall read: Woodbury
Place Partners, a Minnesota general partnership, Plaintiff,
v. City of Woodbury, Minnesota, a municipal corporation,
Defendant.

4. That the Washington County Court
Administrator shall serve a true and correct copy of this
Order by U.S. mail upon counsel for the above-named
parties, which shall constitute due and proper service of
this Order for all purposes.

h

The attached Memorandum is made a part hereof

by reference.

Dated: April 27, 1990
J. BE. Cass
Judge of District Court

A-22

MEMORANDUM

Re: DeCoster, et al. v. City of Woodbury
Court File No. CO-88-3249

The above-entitled matter came before this Court
upon Defendant’s Motion for summary judgment and
Plaintiffs’ Motion for leave to file an Alternative Writ of
Mandamus and Second Amended Complaint.

Minn. R. Civ. P. 15.01 states that a party may
amend a pleading once before a responsive pleading is
served, otherwise a pleading may be amended only by
leave of court, with such leave freely given when justice so
requires. Amendment is generally allowed unless the
party opposing the amendment can show that prejudice
will result from the amendment other than having to
defend against an additional claim. Hughes v. Micka, 130
N.W.2d 505, 510 (1964). Other factors to be considered
are the state of the proceedings, Envail v. LS.D. #704, 349
N.W.2d 593, 597 (Minn. Ct. App. 1987), citing Tomilson
Lumber Sales, Inc. v. J.D. Harrold Co., 117 N.W.2d 203,
207 (1962), and whether substantial delay will result,

Envall, citing Hughes.

Defendant claims that Plaintiffs have changed the
character of the lawsuit by asserting new claims. In
essence, Defendant is merely stating that prejudice will
result from having to defend against additional claims,
which is not an adequate basis for showing prejudice
under Hughes. Defendant also claims that undue delay
will result and that Plaintiffs’ Motion should be denied
since a Note of Issue has already been filed. The Court
finds, however, that no significant delay should occur. The

A-23

original Complaint, which made the same claims as the
Second Amended Complaint, was filed on August 1, 1988.
These were the claims which were subject to discovery for
one year, until these claims were dropped in the Amended
Complaint served on Defendant on September 19, 1989.
It appears that much of the previously conducted discovery
will be applicable to the re-asserted causes of action.
Plaintiffs’ Motion is, therefore, granted.

Defendant’s Motion for summary judgment is
denied in light of the allowed Second Amended
Complaint

Dated: April 27, 1990 ;

J. E. Cass
Judge of District Court

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-92-670

Washington County
District Court #C0883249

Lansing, Judge

Woodbury Place Partners, Gerald S. Duffy
William Christopher Penwell

Respondent,

City of Woodbury,
Minnesota,
Appellant.

A-

Anthony J. Gleekel

Siegel, Brill, Greupner

Duffy, P.A.

100 Washington Avenue

Suite 1300

Minneapolis, MN 55401

Pierre N. Regnier
James G. Golembeck

Jardine, Logan & O’Brien

2100 Meritor Tower
444 Cedar Street
St. Paul, MN 55101

Robert H. Freilich
Richard G. Carlisle

&

Freilich, Leitner, Carlisle &

Shortlidge

1000 Plaza West

4600 Madison

Kansas City, MO 6411

25

t

5

-_

Carla Heyl

League of Minnesota Cities
183 University Avenue East
St. Paul, MN 55101
(Attorney for Amicus Curiae
League of Minnesota Cities)

Jay M. Heffern

Brian W. Ohm

Metropolitan Council

Mears Park Centre

230 East Fifth Street

St. Paul, MN 55101
(Attorneys for Amicus Curiae
Metropolitan Council)

Filed: November 17, 1992

Office of Appellate Courts
SYLLABUS

An interim moratorium enacted pursuant to Minn.
Stat. § 462.355 which denies an owner all economically
viable use of property for two years is not a categorical
taking under the Fifth Amendment to the United States
Constitution.

Reversed and remanded.

Considered and decided by Amundson, Presiding
Judge, Lansing, Judge, and Peterson, Judge.

A-26

OPINION
LANSING, Judge

The City of Woodbury challenges the trial court’s
determination that, on its face, an interim moratorium on
development effected a taking of property without just
compensation. We reverse and remand.

FACTS

This appeal focuses on 505,533 square feet of
unimproved land zoned for commercial use in the
northwest corner of the intersection of Interstate 494 and
Valley Creek Road in Woodbury, Minnesota. Woodbury
Place Partners purchased an undivided one-half interest in
the property, including all rights in this litigation, in
December 1987, and in January 1990 purchased all
remaining property rights. In January 1991 the
partnership conveyed its interest in the property to a third
party.

In March 1987 the City of Woodbury retained a
corporate transportation consultant to conduct an access
improvement study for I-494. Woodbury specifically
directed the consultant to analyze existing congestion
problems at the I-494 interchange at Valley Creek Road
and to assess the need and possible locations for
additional interchanges.

While the traffic flow study was pending, the
partnership proceeded on plans to develop its property.
In February 1988, the partnership applied to the city for
approvai of a preliminary plat, site plan and special use

A-27

permit for the construction of an 80,248 square foot retail
center and an 18,344 square foot office building on the
property. After discussions with city staff, the partnership
revised its development plan to accommodate the
consultant’s proposed roadway improvements.

On March 23, 1988, the city council adopted an
interim moratorium which prohibited acceptance or
consideration of subdivision approval, site plan review,
comprehensive plan amendments, or rezoning on
undeveloped areas adjacent to 1-494. Woodbury Ord. No.
1516. Conforming to the moratorium, the city council
tabled the partnership’s development applications.
Between March 23, 1988, and the moratorium’s expiration
on March 23, 1990, Woodbury twice denied the
partnership a variance.

In July 1988 the partnership brought this action
alleging an unconstitutional taking. The partnership and
the city agreed to submit the case on separately drafted
sets of stipulated facts. Stipulation 47 submitted by the
partnership states that they were denied all economically
viable use of the property from March 23, 1988, to March
23, 1990, as a result of the moratorium. Stipulations 124
and 125 submitted by the city stated that the moratorium
was reasonable and necessary to protect the planning
process and to prohibit construction which could adversely
affect road design and public health and safety.

The district court found that Woodbury’s
moratorium effected a compensable taking of the
partnership’s land from March 23, 1988 to March 23, 1990.
Proceedings to determine damages have been stayed
pending resolution of this appeal. The Metropolitan

Council and the League of Minnesota Cities have filed
amicus briefs.
ISSUE

Does a two-year moratorium enacted pursuant to
Minn. Stat. §462.355 which denies all economically viable
use of property to protect a planning process constitute a
compensable "taking" under the Fifth Amendment?

ANALYSIS
F

The Fifth Amendment’ provides that "private
property [shall not] be taken for public use without just
compensation." The essential purpose of this clause is to
‘bar Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be
borne by the public as a whole." Penn Central Transp.
Co. v. City of New York, 438 U.S. 104, 123-124, 98 S.Ct.
2646, 2659 (1978) (quoting Armstrong v. United States,
364 U.S. 40, 49, 80 S.Ct. 1563, 1569 (1960)).

The takings clause originally was applied only to
physical appropriations of property, but in 1922 Justice
Holmes recognized that regulations on property will also
be considered takings if they go "too far." Pennsylvania
Coal Co, v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160
(1922). Just how far a regulation must go before it will be
considered "too far" under the Fifth Amendment has not
been specifically denied by formula or rule. Penn Central,
438 U.S. at 124, 98 S.Ct. at 2659. Consequently, judicial

‘Although the partnership listed Article I, Section 13 of the Minnesota Constitution

in its complaint, its bnef and argument focused exclusively on federal case law

A-29

determinations have relied on ad hoc factual inquiries and
case-specific weighing of the competing public and private
interests. Id.; Agins v. City of Tiburon, 447 U.S. 255, 261,
100 S.Ct. 2138, 2141 (1980).

The Supreme Court has identified factors to guide
courts in ad hoc factual inquiries. The factors include: (1)
the economic impact of the regulation on the claimant; (2)
the extent to which the regulation has interfered with
distinct investment-backed expectations; and (3) the
character of the government regulation. Penn Central,
438 U.S. at 124, 98 S.Ct. at 2659; Connolly v. Pension
Benefit Guar. Corp., 475 U.S. 211, 225, 106 S.Ct. 1018,
1026 (1986). See Parranto Bros. v. City of New Brighton,
425 N.W.2d 585 (Minn. App. 1988) (restrictive zoning
ordinance held not a taking after applying three-factor
inquiry), pet. for rev. denied (Minn. July 28, 1988).

In addition the Supreme Court has recognized two
categories of regulatory action that constitute compensable

takings without a case-specific inquiry or balancing of

public and private interests. Lucas v. South Carolina
Costal Council, US. , 112 SA.
2886, 2893 (1992). The first occurs when regulations

compel owners to suffer physical invasion or occupation of

their property. See Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 102 S.Ct. 3164 (1982). The
second occurs when the regulation "denies all
economically beneficial or productive use of land." Lucas,
— US.at_, 112 S.Ct. at 2893.

The partnership, relying on Lucas and First English
Evangelical Lutheran Church v. County of Los Angeles,
482 U.S. 304, 107 S.Ct. 2378 (1987), maintains that the

A-30

city’s moratorium on development constitutes the second
type of regulatory action and, therefore, the partnership is
entitled to compensation without a case-specific inquiry or
balancing of public and private interests. We do not read
Lucas or First English to impose this result.

In Lucas, the property owner purchased residential
lots on the coast of South Carolina to build single family
homes. Before Lucas developed the property, the state
legislature enacted the Beachfront Management Act. The
trial court found that the Act decreed a permanent
construction ban which effectively deprived Lucas of any
reasonable use of the lots and made them valueless.
Lucas v. South Carolina Coastal Council, US.

, 112 S.Ct. 2886, 2890 (1992). On the basis of these
factual findings the Court applied the categorical rule that
"total regulatory takings must be compensated." Id. at
112 S.Ct. at 2899. -

To invoke the total takings analysis of Lucas, the
partnership relies exclusively on the stipulation that the
moratorium denied all economically viable use of the
property from March 23, 1988 to March 23, 1990.2 We
interpret the phrase "all economically viable use for two
years" as significantly different from "all economically
viable use" as applied in Lucas. The two-year deprivation
of economic use is qualified by its defined duration. In
Minnesota, moratoriums on development to aid planning

a
“In our view the sale of the remaining one-half interest in the property during the
moratonum would belie a determination of total economic inviability. However, we are

obligated to accept the stipulation for purposes of our analysis

A-31

processes cannot exceed thirty months. Minn. Stat.
§462.355, subd. 4 (1990). This is significantly different
from ‘the presumptively permanent South Carolina
regulation which imposed prohibitions on development.
That the Woodbury property’s economic viability was
delayed, rather than destroyed, is implicitly recognized in
the language of the stipulation. "[A]ll economically viable
use from March 23, 1988 to March 23, 1990" recognizes
that economic viability exists at the moratorium’s
expiration.

By narrowly defining the measurable property
interest as a two-year segment, the partnership equates its
loss of use to a "total" taking. Lucas acknowledges that
the "rhetorical force" of the "no economically viable use"
rule is "greater than its precision, since the rule does not
make clear the ‘property interest’ against which the loss of
value is to be measured." US. at _ , 112 S.Ct. at
2894 n.7. However, the Supreme Court has repeatedly
resisted attempts to narrowly define attributes of property
ownership to show total deprivation of economic use
through regulation.

In Penn Central the Court explained that:
"Taking" jurisprudence does not divide a
single parcel into discrete segments and
attempt to determine whether rights in a
particular segment have been entirely
abrogated. In deciding whether a particular
governmental action has effected a taking,
this Court focuses rather both on the
character of the action and on the nature
and extent of the interference with rights in
the parcel as a whole * * *.

A-32

438 U.S. at 130, 98 S.Ct. at 2662 (emphasis added).

Consistent with this construction, the Court declined to
find a categorical taking in Andrus v. Allard, 444 U.S. 51,
100 S. Ct. 318 (1979), when a governmental regulation
prohibited the owner from selling his property. The Court
reasoned that "where an owner possesses a full bundle’ of
property rights, the destruction of one ’strand’ of the
bundle is not a taking, because the aggregate must be
viewed in its entirety." Id. at 65-66, 100 S.Ct. at 327. This
concept was aptly characterized by Justice Stevens in his
dissent in First English: |

Regulations are three dimensional: they
have depth, width, and length, * * * It is
obvious that no one of these elements can
be analyzed alone to evaluate the impact of
a regulation, and hence to determine
whether a taking has occurred.

482 U.S. at 330, 107 S.Ct. at 2394.

We acknowledge that no case has specifically
addressed the dimension of length of time as it applies to
the totality of a taking. Nonetheless the Supreme Court’s
inclination to measure the economic burden against the
value of the property as a whole, rather than against
discrete segments, compels us to reject the partnership’s
argument. See Keystone Bituminous Coal Ass’n_v.
DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 1248

(1987).

When measured against the value of the property
as a whole, rather than against only a two-year time

A-33

frame, the moratorium did not deny the partnership “all
economically viable use" of its property. Delaying the sale
or development of property during the governmental
decision-making process may cause fluctuations in value
that, absent extraordinary delay, are incidents of
ownership rather than compensable takings. Agins v.

(1980).
Il.

First English does not change this analysis.
Although First English presented an issue dealing with the
dimension of time in the context of a regulatory taking, we
cannot apply its holding as broadly as the partnership
urges. First English essentially held that "where the
government’s activities have already worked a taking of all
use Of property, no subsequent action by the government
can relieve it of the duty to provide compensation for the
period during which the taking was effective." First
English Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304, 321, 107 S.Ct. 2378, 2389 (1987).

The First English court expressly declined to decide
whether a regulatory flood control ordinance prohibiting
construction or reconstruction amounted to a taking. Id

at 313, 107 S.Ct. at 2384-85. On remand the California
appellate court held that the interim "total moratorium"
ordinance was by design a temporary measure which could
not be a compensable taking. 210 Cal.App.3d 1353, 1372-
73 (1989), cert. denied, 493 U.S. 1056 (1990).

First English does not create a new liability
standard to determine when a "temporary" taking occurs,

A-34

but clarifies the appropriate remedy after a taking is
recognized. It is uncertain whether the term "temporary
taking" as employed by First English was even intended to
apply to planning moratoriums. The opinion seems to
presuppose that "temporary regulatory takings" means
‘regulatory takings which are ultimately invalidated by the
courts." 482 U.S. at 310, 107 S.Ct. at 2383. The apparent
reach of First English is to retrospectively temporary
takings (e.g., regulations subsequently rescinded or
declared invalid), not prospectively temporary regulations
such as the Woodbury moratorium.

Courts have uniformly construed the essential
holding of First English narrowly. See Guinnane v. City
and County of San Francisco, 197 Cal.App.3d 862, 869
(1987); McCutchan Estates Corp. v. _ Evansville-
Vanderburgh County Airport Auth. Dist., 580 N.E.2d 339
(Ind. Ct. App. 1991) ("[T]here is nothing in First English
which alters the established principle that the interim
burden imposed on a landowner during the government’s
decision-making process, absent unreasonably delay, does
not constitute a taking."), cert. denied., 488 U.S. 823
(1988). Because it has yet to be demonstrated that
Woodbury’s moratorium amounted to a taking; the
remedial rule of First English that "temporary" takings
must be compensated does not apply.

IV.

Woodbury’s two-year moratorium did not deny the

“Harvard Law Professor Frank Michelman has interpreted “the First English
Jecision [as] not reach|ing] regulatory enactments, even total restnctive ones, that are
expressly designed by their enactors to be temporary * * * .” Frank Michelman, Takin rs.
1987. 88 Colum. L. Rev. 1600, 1621 (1988)

partnership "all economically viable use" of their property
in the way that phrase has been conceived and applied by
the Supreme Court. Consequently, the district court's
determination that a categorical taking has occurred on
these facts must be reversed.

The three-factor inquiry of Penn Central, rather
than the categorical rule of Lucas, applies to determine
whether a compensable taking occurred. Although the
stipulations submitted by the parties shea light on the
character of the moratorium, they do not resolve the
extent to which the regulation interfered with distinct
investment backed expectations or the magnitude of the
economic impact on the partnership. Consequently, we do
not decide on this record whether a compensable taking
has occurred under the standards established in Penn
Central and Agins. This question is appropriately resolved

on remand.
DECISION

The district court erred in concluding that
Woodbury’s two-year moratorium constituted a categorical
taking. We remand to the district court for further
proceedings to determine whether the moratorium
effected a compensable taking.

Reversed and remanded.

Signed by: Judge Harriet Lansing
November 10, 1992

A-36

STATE OF MINNESOTA)
» =.

COUNTY OF HENNEPIN)

Sindy L. Campos of the City of Plymouth, County
of Hennepin, State of Minnesota being duly sworn says
that on the 16th day of December, 1992, she served the
annexed Petition for Review of the Decision of the Court
of Appeals on Robert H. Freilich and Richard G. Carlisle
by federal expressing to them two copies thereof enclosed
in an envelope, postage prepaid and by depositing same in
the post office at Minneapolis, Minnesota directed to said
attorneys at Freilich, Leitner, Carlisle & Shortlidge, 1000
Plaza West, 4600 Madison, Kansas City, Missouri 64112,
the last known address of said attorneys.

Sindy L. Campos

Subscribed and sworn to before
me this 16th day of December, 1992.

Notary Public

STATE OF MINNESOTA
IN SUPREME COURT

C2-92-670

Woodbury Place Partners,
Respondent,

VS.

City of Woodbury, Minnesota,
Appellant.

ORDER

Based upon all the files, records and proceedings
herein,

IT IS HEREBY ORDERED that the petition of
Woodbury Place Partners and the conditional petition of
the City of Woodbury for further review be, and the same
are, denied.

IT IS FURTHER ORDERED that the requests of
the Metropolitan Council and the League of Minnesota
Cities to serve and file briefs as amici curiae be, and the
Same are, accordingly denied.

Dated: January 15, 1993
Filed on January 15, 1993

BY THE COURT:

Chief Justice

A-38

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2328%3A1. Public record. Not legal advice.