Opposition Brief — Woodbury Place Partners v. City of Woodbury

No. 92-1644

In The

Supreme Court of the United States

October Term, 1992

+

WOODBURY PLACE PARTNERS,

a Minnesota General Partnership,

Petitioner,

CITY OF WOODBURY, a Minnesota

Municipal Corporation,

Respondent.

¢

Petition For Writ Of Certiorari To The

State Of Minnesota Court Of Appeals

»

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

*RosBert H. FREILICH PIERRE N. REGNIER

RICHARD G. CARLISLE James G. GOLEMBECK

FREILICH, LEITNER & CARLISLE JARDINE, LOGAN & O'BRIEN

1000 Plaza West 2100 Meritor Tower

4600 Madison 444 Cedar Street

Kansas City, Missouri 64112 St. Paul, Minnesota 55101

(816) 561-4414 (612) 290-6500

Attorneys for Respondent

* Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Counsel for Respondent suggest that the question

presented by Petitioner is a misstatement of the Question

Presented in this case. Pursuant to Rule 24.2 of the

Supreme Court Rules, Respondent respectfully offers the

following Question Presented:

IF A DEVELOPER AND GOVERNMENTAL

BODY STIPULATE THAT TEMPORARY

DENIAL OF ALL ECONOMICALLY VIABLE

USE IS REASONABLE IN SCOPE AND DURA

TION AND WHERE THERE IS NO EVI-

DENCE OF TEMPORARY OR PERMANENT

ECONOMIC HARM OR DIMINUTION IN

VALUE ~ DOES THAT CONSTITUTE A PER SE

TAKING UNDER LUCAS V. SOUTH CAROLINA

COASTAL COUNCIL, U.S , 112 S.Ct. 2886

(1992)?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......... Sagan ee i

TABLE OF AUTHORITIES..... ese ili

SIAL EMONS UP 381e CADE es eins elinsanceuee l

REASONS FOR GRANTING THE WRIT ........... 6

SUMMARY OF THE ARGUMENT ................ 6

The Decision Of The Minnesota Court Of

Appeals Does Not Raise An Important Question

Of Federal Law Which Has Not Been, But Should

me, sectieG By This COUN... aks eesakeeeeesaaas

ee MET ter ee nee vane

iil

TABLE OF AUTHORITIES

1902 Atlantic Limited v. United States, 26 Cl. Ct. 575

eee Gy Lae dw ba kbs 6 een e ness

Agins v. City of Tiburon, 447 U.S. 255 (1980) 5, 6,

Bell v. City of Waco, 835 S.W.2d 211 (Tex. Ct. App.

tg EG

Berrios v. City of Lancaster, 798 F.Supp. 1153 (E.D.

EE EO

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

Dufau v. United States, 22 Cl. Ct. 156 (1990), aff'd,

co a ARS 2) |

NR

i)

-

SN)

W

>>

1

oO

ho

°>

4

/

Euclid v. Ambler Realty Co.,

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987) ........ 11,

Fitzgarrald v. City of lowa City, 492 N.W.2d 659

a AS

Guinane v. City and County of San Francisco, 197

Cal. App. 3d 862, 241 Cal. Rptr. 787 (1987)

Jackson Court Condominiums v. City of New Orleans,

874 F.2d 1070 (5th Cir. 1989)....

Lockary v. Kayfetz, 908 F.2d 543 (9th Cir. 1990)

rehearing denied 917 F.2d 1150 (9th Cir. 1990)....

Lucas v. South Carolina Coastal Council, U.S.

oo Ge By 6») a

McAndrews v. New Bank of New England, 796

F.Supp. 613 (D. Mass. 1992)....

TABLE OF AUTHORITIES - Continued

Page

McCutchan Estates Corp. v. Evansville-Vanderburgh

County Airport Auth. Dist., 580 N.E. 2d 339 (Ind.

| Ae) ees ee Peer re err 1]

Naegele Outdoor Advertising, Inc. v. City of Durham,

803 F.Supp. 1068 (M.D.N.C. 1992).............. oe

New Jersey Shore Builders Assoc. v. Township of Mid-

dletown, 561 A.2d 319 (N.J. A.D. 1989) ............ 12

Penn Central Transp. Co. v. City of New York, 438

15 ay sy, | Cn re ga kr Lees rari nee penne 10

Powers v. Skagit County, 835 P.2d 230 (Wash. Ct.

eee st pete Ane - 13

S.E.W. Friel v. Triangle Oil Co., 543 A.2d 863 (Md.

1988).......... ie kgea tetera te aie ee, Wiewen AS

Schafer v. City of New Orleans, 743 F.2d 1086 (5th

ee ee 11

Smith v. Wolfeboro, 615 A.2d 1252 (N.H. 1992) .... 10

Tabb Lakes, Inc. v. United States, 26 Cl. Ct. 1334

(3 Ra rermeacane ~ Tee ee , 13

Tocco v. N.J. Council on Affordable Housing, 576

A.2d 328 (N.J. 1990), cert. denied, 122 N.J. 403,

585 A.2d 401 (N.J. 1990), cert. denied, 111 S.Ct.

hg, Re ee ee eae ae 12

Tull v. Commonwealth of Virginia, U.S , 113

aks OE CEWMEE: vee vk ee hens 5

Zilber v. Town of Moraga, 692 F.Supp. 1195 (N.D.

Cal. 1988) . Wear | - 11

TABLE OF AUTHORITIES - Continued

Page

STATUTES, RULES AND ARTICLES

Bozung & Alessi, Recent Developments in Environ-

mental Preservation and Rights of Property

Owners, 20 Urb. Law. 969 (1988).................-.. 8

D. Callies & C. Duerksen, Value Recapture as a

Source of Funds to Finance Public Projects, 8 Urb.

ee” Se Ri) Pere re ret errr er ey ree ree 7

Michelman, Property, Utility and Fairness: Com-

mentson the Ethical Foundations of “Just Compen-

sation” Law, 80 Harv. L. Rev. 1165 (1967)......... 8, 9

Minn. Stat. § 462.355(4) (1990) .............20008. Cae

Sax, Takings in the Police Power, 74 Yale L. J. 36

Ce rere Creer serrnrs ene te 8,9

Williams, Smith, Siemon, Mandelker & Babcock,

The White River Junction Manifesto, 9 Vermont L.

Oe Ae MUD esac one sae ee ra en ses ou: baa 8, 10

No. 92-1644

+

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 Writ Of Certiorari To The

State Of Minnesota Court Of Appeals

ESS ae oO ee

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

me eH & -

Respondent respectfully asks that the Writ of Cer-

tiorari requested by Petitioner be denied

* —

STATEMENT OF THE CASE

Petitioner states that the City’s 24 month interim

development moratorium “denies a property owner of all

economically viable use of its property ... ” constituting

a per se categorical taking of property under this Court's

recent decision in Lucas v. South Carolina Coastal Council,

__ U.S. __, 112 S.Ct. 2886 (1992). Petition pg. 3. Contrary

to Petitioner’s assertion, the parties in this case stipulated

that denial of all economically viable use for two years

was reasonable in scope and duration. (Stipulated Find-

ings, [Petitioner’s Version], No. 47; and, Stipulated Find-

ings, [Respondent’s Version], Nos. 124 and 125). Further,

there was no stipulation or evidence in this case of eco-

nomic harm or diminution in the temporary or permanent

value of the developer’s property caused by the mor-

atorium.

In 1980, the City’s Comprehensive Plan identified the

need for access to Interstate 494 (1-494) in the vicinity of

property owned by Douglas and Steven DeCoster. In

1987, Petitioner purchased an undivided one-half interest

in the DeCoster land!. In early 1988, a transportation

consultant reported that traffic safety problems caused by

growth in the area would seriously worsen traffic conges-

tion and recommended that several new interchanges be

constructed to accommodate existing and future traffic

demands. (Defendant’s Findings Nos. 15, 16). In accord-

ance with law, a period of study, negotiations and discus-

sions with over 40 federal, state, regional and local

agencies commenced regarding amendment of the City’s

1 Contrary to Petitioner’s Statement of the Case, Petitioner

has not been the owner of the Property here involved at all

relevant times. Twenty months after enactment of the mor-

atorium. (while the interim ordinance was still in effect), Peti-

tioners purchased the DeCosters’ remaining interest in the land.

Moreover, in January 1991 Petitioners sold the Property to a

third party for an undisclosed sum. (Plaintiff’s Findings, Nos.

3-6).

Comprehensive Plan to provide new access to I-494. Care-

ful study of impacts of the project on nearby elementary

and junior high schools, on adjacent wetlands, traffic

safety and capacity, church property (among many other

issues) ensued. (Defendant’s Findings, Nos. 11, 31, 39, 40,

44, 45, 54, 57, 65, 72, 74, 77).

To prevent premature development during the

studies and environmental assessments, which might

destroy and frustrate the proper implementation for the

health, safety and welfare of the corridor intersection

location, the City enacted Ordinance No. 1516 to impose a

temporary moratorium on development in the 1-494 corri-

dor which would have a negative impact on the planning

process. Ordinance No. 1516 was expressly authorized by

Minn. Stat. § 462.355(4) (1990) which provided for such

moratoria for a period not to exceed 30 months.” Pur-

suant to the mandates of state law and by its own terms,

the interim moratorium ordinance expired on March 23,

1990. During the study period, the final alignment for the

new interchanges and access roads was fully planned and

improved the access along the westerly edge of Peti-

tioner’s Property. (Defendant’s Findings, No. 95).

The parties stipulated that: (1) Petitioner was neces-

sarily and reasonably denied all economically viable use

2 Originally, Petitioner challenged the constitutionality of

this statute, but later abandoned the claim. The City suggests

that abandonment of that claim moots any viable challenge to a

moratorium authorized by that statute. (Defendant's Findings,

Nos. 115, 121). This is particularly true where the existence of

that statute on the date Petitioner acquired the property defined

Petitioner’s property interest. Lucas v. South Carolina Coastal

Council, __ US. , 112 S.Ct. 2886, 2899-2901 (1992).

of its property for two years as a result of the mor-

atorium; (2) Petitioner was not singled out under the

moratorium (Defendant’s Findings Nos. 110, 114, 115,

118, 119, 121, 123, 124 and 125; and Plaintiff's Findings

No. 47); (3) the ordinance was enacted properly and in

conformance with all statutes and ordinances. (Defen-

dant’s Findings No. 111); (4) the ordinance was of limited

duration, enacted in good faith, without discrimination

and was not improperly prolonged (Defendant's Findings

No. 114); (5) the moratorium was necessary for coordina-

tion between all of the governmental agencies involved in

the studies from 1986 to 1991 (Defendant's Findings No.

118); (6) the ordinance was necessitated by a large traffic

study directly related to the Comprehensive Plan of the

City, and was directly related to official controls of the

City, such as zoning maps, transportation maps, site plan

review, and plat applications; and (7) the ordinance was

necessary to protect the public health, safety and welfare

(Defendant’s Findings No. 125).

Petitioner sought an Alternative Writ of Mandamus

in July 1988, compelling Respondent to institute condem-

nation proceedings. The distréct court ordered the

Respondent to institute condemnation proceedings. On

appeal, the Minnesota Court of Appeals noted that Peti-

tioner had totally and simply relied on a stipulation that

the ordinance denied all economically viable use of the

property for two years; and, that such stipulation was

significantly different from the concept of deprivation of

“all economically viable use” as applied in Lucas v. South

Carolina Coastal Council, __ U.S. ___, 112 S.Ct. 2886, 2890

(1992). (App. A-31). The Court further held:

The two-year deprivation of economic use is

qualified by its defined duration. In Minnesota,

moratoriums on development to aid planning

processes cannot exceed 30 months. Minn. Stat.

§ 462.355, subd. 4 (1990). This is significantly

different from the presumptively permanent

South Carolina regulation which imposed prohi-

bitions on development.

(App. A-31-32).

When measured against the value of the prop-

erty as a whole rather than only a two year time

frame, the moratorium did not deny the partner-

ship “all economically viable use” of its prop-

erty. 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.*

(App. A-33-34) (citing Agins v. Tiburon, 447 U.S. 255, 263

Thus, the Court of Appeals held that Petitioner’s

economically viable use was merely delayed, rather than

taken. (App. A-32).

Accordingly, the Court held that the City’s mor-

atorium did not deny Petitioner “all economically viable

use” of their property in the way that phrase has been

conceived and applied by the Supreme Court; and,

* Following the decision in Lucas, this Court denied cer-

tiorari in the case of Tull v. Commonwealth of Virginia, __ U.S.

__, 113 S.Ct. 191 (1992), which squarely presented the question

of whether a taking inquiry may focus on a portion of the

property regulated as opposed to the property as a whole.

remanded for further consideration of this case under the

ad-hoc multi-factor standards established in Penn Central

Transp. Co. v. City of New York, 438 U.S. 104 (1978), and

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

The case is currently pending on remand and no

Opinion by Minnesota’s state court of last resort on the

remand has yet been issued.

a a

REASONS FOR GRANTING THE WRIT

SUMMARY OF THE ARGUMENT

Pursuant to Rule 10 of the Supreme Court Rules,

strong considerations exist in this case to deny review on

Writ of Certiorari. There is no conflict on the issue here

involved in the circuits. There has been no decision by

Minnesota’s state court of last resort which in fact,

refused a writ of review. This case itself is inchoate in that

it is currently still being litigated in the state courts. The

intermediate decision in this case is not in conflict with

any decision of the U.S. Supreme Court or, for that mat-

ter, with any other federal decision. A review of the

Petition for Writ of Certiorari shows that no claim is

made by Petitioner to the contrary.

Instead, Petitioner seeks to bootstrap a phrase, which

in and of itself has no meaning, from one of many stipula-

tions in this case. Petitioner’s version of the stipulated

findings of fact in this case was to the effect that the

moratorium here involved denied Petitioner “all econom-

ically viable use of the Property for two years.” (Petition,

pg. 7; Petitioner’s Findings, No. 47). In every proceeding

in this case, Petitioner has sought to elevate the semantics

of this one phrase, standing alone, over the substance of

all of the stipulations taken together.

Reduced to its simplest terms, Petitioner’s argument

has always been that the phrase “all economically viable

use ... for two years” has some talismanic effect upon its

cause of action. It matters not, according to Petitioner,

whether or not the value of the Property diminished*

during the period of time the moratorium was in effect,

only that the use was affected for the two years.

Because this case was submitted on stipulations

which, when taken together, establish that the temporary

denial of use (a) was reasonable in duration and scope,

(b) caused no economic harm, and (c) caused no diminu-

tion in value of the Property, this case presents no impor-

tant question of federal law which has not been, but

should be, settled by this Court.

The Decision Of The Minnesota Court Of Appeals Does

Not Raise An Important Question Of Federal Law

Which Has Not Been, But Should Be, Settled By This

Court.

This case involves careful transportation planning for

new access to an interstate highway. At this stage of the

proceedings, the record does not reveal whether or not

4 See D. Callies & C. Duerksen, Value Recapture as a Source of

Funds to Finance Public Projects, 8 Urb. L. Ann. 73, 74 (1974)

(“privately-owned land near transit stations and stops will

probably increase in value due to the enhanced commercial,

industrial and residential development potential created by

superior access and the concurrent generation of intense local

activity.”)

economic harm or windfall profits to the developer were

the result of that planning. To date, the record in the case

at hand reveals only a temporary interference with the

use of the Property. There has been no showing of the

impact of the ordinance on the fair market value of the

Property or the extent to which the ordinance interfered

with the Petitioner’s reasonable investment-backed

expectations.

The record does reveal that the Petitioner reaped the

economic benefits of improved access in the 1-494 corri-

dor and that the Petitioner was able to sell its property

during the moratorium for an undisclosed sum (presuma-

bly for a profit). (Petitioner’s Findings Nos. 3-6). The

parties have stipulated that the temporary denial of all

economically viable use here involved was reasonable in

scope and duration. (Respondents’ Findings Nos. 95, 110,

111, 114, 115, 118, 119, 121, 123, 124 and 125; and, Peti-

tioner’s Findings No. 47).

Beyond peradventure, there is no “great debate” as to

the constitutionality of an ordinance under the Fifth

Amendment which creates windfall profits for a devel-

oper and is not unfair or arbitrary. Petitioner cites Sax,

Takings in the Police Power, 74 Yale L. J. 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 & Alessi, Recent Develop-

ments in Environmental Preservation and Rights of Property

Owners, 20 Urb. Law. 969 (1988); Williams, Smith, Siemon,

Mandelker & Babcock, The White River Junction Manifesto,

9 Vermont L. Rev. 193 (1984) in an attempt to show the

dimensions of a debate on the issues involved in this

case.

In fact, a review of the sources cited reveals from

Petitioner’s own authorities that no debate exists over the

Question Presented when the stipulations are read as a

whole. See Question Presented, supra.

For example, Professor Sax states:

The more one examines these early explanations

of the constitutional purpose of the taking pro-

vision, the clearer it becomes that the protection

afforded is most properly viewed as a guarantee

against unfair or arbitrary government. Story,

for example, stated that the compensation provi-

sion, “is laid down by jurists as a principle of

universal law [because] in a free government,

almost all other rights would become worthless,

if the government possessed an uncontrollable

power over the private fortune of every citizen.”

Sax, 74 Yale L.J. at 60 (citations omitted) (emphasis in

original). By stipulation in the case at hand, we know that

the ordinance was not “unfair or arbitrary” and that it

did not have an adverse impact upon the “private for-

tune” of the Petitioner.

Professor Michelman, with language that fore-

shadowed Lucas stated:

Is the supposedly critical factor the size of the

private loss absolutely, or rather’ the size of that

loss compared with some other quantity? And

if, as seems clear, a comparison of magnitudes is

intended — a comparison in which, were it frac-

tionally expressed, the loss in value of the

affected property would compose the numerator

~ what value supplies the denominator? Is it the

preexisting value of the affected property, or is

it the whole preexisting wealth or income of the

complainant?

Michelman, 80 Hav. L. Rev. at 1192 (1967).

10

Thus, Professor Michelman speaks of value (not mere

temporal use disassociated from value) as the key con-

cept in the equation. This case involves no evidence of

diminution in value or economic harm; therefore, it can

shed no light on any great debate as to what proportion

of value in property may be destroyed by government

regulation without payment of just compensation. Com-

pare Penn Central Transp. Co. v. City of New York, 438 U.S.

104, 125-126 (1978) (showing of “economic harm” not

merely a lack of economic use required).

Similarly, the Bozung article and the White River Junc-

tion Manifesto merely emphasize that fluctuations in value

caused by reasonable delays in governmental decision-

making do not constitute takings. In the case at hand, we

do not know whether value fluctuated or not; however,

we do know that the delay in economically viable use

was reasonable.

There is certainly no “great debate” about whether or

not the separation of powers doctrine still exists; and, as

long as it does, municipal legislation, including the ordi-

nance here at issue, will enjoy a presumption of validity.

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

there is no debate that the taking question “necessarily

> “Mere fluctuations in value during the process of govern-

mental decision-making, absent extraordinary delay, are ‘inci-

dents of ownership. They cannot be considered as a “taking” in

the constitutional sense.’ ” Agins v. Tiburon, 447 U.S. 255, 263 n. 9

(1980) (citing Danforth v. United States, 308 U.S. 271, 285)

(remaining citations omitted). Accord 1902 Atlantic Limited v.

United States, 26 Cl. Ct. 575 (1992); Smith v. Wolfeboro, 615 A.2d

1252 (N.H. 1992), and Bell v. City of Waco, 835 S.W.2d 211, 215

(Tex. Ct. App. 1992).

11

requires a weighing of private and public interests.”

Agins v. City of Tiburon, 447 U.S. 255, 261 (1980). Peti-

tioner, by failing to submit evidence of economic harm,

clearly did not raise any issue over which there could be

much debate.

First English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987) and, Lucas, 118 S.Ct. 2886, do

not stand for the propositions presented in this petition

and, do not rescue Petitioner from its failure to meet its

burden. First English reached merely the “remedial ques-

tion” of whether or not the Fifth Amendment mandated

the payment of just compensation in the event that there

was a temporary taking. 482 U.S. at 303, 312-313. After

remand, as we respectively suggest should be the case

here, the Supreme Court denied certiorari where the ulti-

mate issue and question presented was whether a reason-

able delay in use could be a taking®.

© This fact is borne out by the decision of the California

Court of Appeals in the First English remand, 210 Cal. App. 3d

1353, 258 Cal. Rptr. 893 (1989), cert. denied, 493 U.S. 1056 (1990).

There the court found that, on balance, the moratorium was

reasonable and therefore not a taking. First English, 210 Cal.

App. 3d at 1367-69, 258 Cal. Rptr. at 902-03. Following this

Court’s opinion in First English, many courts have upheld val-

idly enacted development moratoria and interim development

ordinances against taking challenges. See e.g., Jackson Court Con-

dominiums v. City of New Orleans, 874 F.2d 1070 (5th Cir. 1989);

S.E.W. Friel v. Triangle Oil Co., 543 A.2d 863 (Md. 1988); Schafer v.

City of New Orleans, 743 F.2d 1086 (5th Cir. 1984); Lockary v.

Kayfetz, 908 F.2d 543 (9th Cir. 1990), rehearing denied, 917 F.2d

1150 (9th Cir. 1990); Zilber v. Town of Moraga, 692 F. Supp. 1195

(N.D. Cal. 1988); McCutchan Estates Corp. v. Evansville-Vander-

burgh County Airport Auth. Dist., 580 N.E. 2d 339 (Ind. App.

1991); Dufau v. United States, 22 Cal. Ct. 156 (1990), aff'd, 940 F.2d

12

os

Lucas, contrary to Petitioner’s assertions, did not

somehow invite re-examination of the settled issue that

taking claims do not arise when reasonable legislation is

passed that has no discernable impact on the value of

property. Repeatedly, throughout his opinion, Justice

Scalia emphasized the draconian prohibitions of the

Beachfront Management Act and its “complete extin-

guishment of property value... .” The Act “[rjender[ed]

them valueless.” Repeatedly, Justice Scalia made clear

that the taking issue was implicated only where legisla-

‘valueless.” 112 S.Ct. at 2895.

Justice Scalia refused -to entertain any argument (as

/

tion rendered property

addressed in the dissents) that “valueless” did not mean

“valueless.” Id. at 2896, n. 9. Finally, in footnote 7, empha-

sized at page 13 of the Petition, Justice Scalia stated that it

is the “loss of value” in a given “property interest” that is

critical to a determination of whether or not a per se

taking exists. Id. at 2894.

677 (Fed. Cir. 1991); and New Jersey Shore Builders Assoc. v.

Township of Middletown, 561 A.2d 319 (N.J. A.D. 1989). Similarly

in two specific cases after First English this Court has refused to

grant certiorari where the question"presented squarely raised

the issue that a temporary moratorium for periods ranging from

eighteen months to five years constituted a compensable taking

Tocco v. N.J. Council on Affordable Housing, 576 A.2d 328 (N.J.

1990), cert. denied, 122 N.J. 403, 585 A.2d 401 (N.J. 1990), cert.

denied, 111 S.Ct. 1389 (1991) (moratorium completely freezing

land for eighteen months constitutes a temporary taking); First

English, after remand (five year moratorium until study com-

pleted and permanent ordinance adopted constitutes a tempor-

ary taking). See also Guinane v. City and County of San Francisco,

197 Cal. App. 3d 862, 241 Cai. Rptr. 787 (1987), cert. denied, 488

U.S. 823 (1988).

13

Perhaps another day in another case as the circuits

continue to apply Lucas a case may come before this

Court where property was rendered temporarily “value-

less” and where the regulation was not limited upon

passage and by state statute to a reasonable duration and

scope. However, this is not such case.”

¢--

CONCLUSION

Petitioner states that the underlying inquiry to deter-

mine compensability under the takings clause is whether

7 None of the cases decided after the Lucas decision even

remotely suggest that the lower courts are having any trouble

interpreting Justice Scalia’s “loss of value” standard for deter-

mination of whether or not, by categorical rule, there is a taking.

See, e.g., Naegele Outdoor Advertising, Inc. v. City of Durham, 803 F.

Supp. 1068 (M.D.N.C. 1992) (although the court found signifi-

cant economic loss, no taking found where there was no physi-

cal invasion and some economic value remained); Berrios v. City

of Lancaster, 798 F. Supp. 1153 (E.D. Pa. 1992) (court must review

economic impact of regulation); McAndrews v. New Bank of New

England, 796 F. Supp. 613 (D. Mass. 1992) (no taking where “no

transfer of wealth from the plaintiff to the public domain”); Tabb

Lakes, Inc. v. United States, 26 Cl. Ct. 1334 (1992) (evidence of

substantial economic activity defeated taking claim); Fitzgarrald

v. City of lowa City, 492 N.W.2d 659 (lowa 1992) (no taking where

remaining value for property found); and Powers v. Skagit

County, 835 P.2d 230 (Wash. Ct. App. 1992) (if regulation merely

diminishes economic viability taking inquiry reverts to balanc-

ing of interests test, not Lucas test). If no showing of “loss of

value” is required, the federal courts will find themselves

reviewing every garden variety zoning disposition as a “super

planning commission”. We respectfully suggest that absent such

a showing, merely local political issues are raised which should

not be reviewed by the federal courts.

14

“some people bear public burdens which in all fairness

and justice, should be borne by the public as a whole,”

citing First English, 482 U.S. at 318. We consider Peti-

tioner’s statement paradoxical in the extreme where Peti-

tioner has stipulated to the “fairness and justice” of the

ordinance at issue in this case (Defendant’s Findings,

Nos. 110, 114, 115, 118, 119, 121, 123, 124 and 125; and

Plaintiff’s Findings No. 47) and has carefully avoided

offering any evidence of economic harm. We do, however,

agree with Petitioner —- and with Professor Sax and Mic-

helman —- that the “fairness and justice” standard per-

vades every case under the Fifth Amendment. Here,

however, because that issue was settled in Respondent's

favor, the decision of the Minnesota Court of Appeals

does not raise an important question of federal law.

For the reasons set forth above, Writ of Certiorari

should be denied in this case.

Respectfully submitted,

Ropert H. FREILICH

RICHARD G. CARLISLE

FREILICH, LEITNER & CARLISLE

4600 Madison, Suite 1000

Kansas City, MO 64112-3012

Pierre N. REGNIER

James G. GOLEMBECK

JARDINE, LoGAN & O’BrIEN

2100 Meritor Tower

444 Cedar Street

St. Paul, MN 55101

Attorneys for Respondent

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