Amicus Curiae Brief — Hensler v. City of Glendale

No. 94-1124

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

R.R. HENSLER,

Petitioner,

V.

CITY OF GLENDALE,

Respondent.

On Petition for Writ of Certiorari

to the California Supreme Court

THE NATIONAL ASSOCIATION OF HOME

BUILDERS’ MOTION FOR LEAVE TO FILE A

BRIEF AMICUS CURIAE AND BRIEF AMICUS

CURIAE IN SUPPORT OF PETITIONER

GLEN FRANKLIN KOONTZ

1201 Fifteenth Street, N.W..

Washington, D.C. 20005

(202) 822-0359 .

Counsel for Amicus Curiae

The National Association of

Home Builders

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

No. 94-1124

R.R. HENSLER,

Petitioner,

V.

CITY OF GLENDALE,

Respondent.

On Petition for Writ of Certiorari

To The California Supreme Court

THE NATIONAL ASSOCIATION OF HOME

BUILDERS' MOTION FOR LEAVE TO

FILE A BRIEF AMICUS CURIAE

The National Association of Home Builders

("NAHB") moves this Court for leave to file this

accompanying brief amicus curiae in support of petitioner.

The NAHB has received the written consent of petitioner and

has filed the letter of consent with the Clerk of this Court.

The respondent City of Glendale has declined NAHB’s -

request for consent to file a brief in support of the Petition.

INTEREST OF THE AMICUS CURIAE

The NAHB represents 180,000 builder and associate

members organized in approximately 850 affiliated state and

local associations in all fifty states, the District of Columbia,

and Puerto Rico. Its members include not only people and

firms that construct and supply single-family homes but also

apartment, condominium, commercial and industrial builders,

as well as land developers and remodelers. It is the voice of

the American shelter industry.

The NAHB has been before this Court either as an

amicus curiae in support of, or as of counsel on behalf of, the

property owner in prior "takings" cases involving

governments’ land use decisions. Dolan v. City of Tigard,

114 S.Ct. 2309 (1994); Lucas v. South Carolina Coastal

Council, 112 S.Ct. 2886 (1992); Yee v. City of Escondido,

112 S.Ct. 1522 (1992); Nollan v. California Coastal Commn.,

483 U.S. 825 (1987);' First English Evangelical Lutheran

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

(1987); MacDonald, Sommer & Frates v. County of Yolo,

477 U.S. 340, reh’g denied, 478 U.S. 1035 (1986);

Williamson County Regional Planning Commission _v.

'The NAHB brief was cited approvingly in this Court’s Nollan

opinion, 483 U.S. at 840.

2

a alitek BE ct ori Nai via” Neil? Se

Hamilton Bank, 473 U.S. 172 (1985); San Diego Gas &

Electric Co. v. City of San Diego. 450 U.S. 621 (1981);

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

The just compensation clause serves as a vital shield

against oppressive governmental land use regulation. It is of

paramount importance to this amicus and its members. The

actual, as opposed to merely theoretical, availability of an

appropriate constitutional remedy for the governmental action

that results in a taking is critical to the livelihood of private

landowners who either 1) have lost all reasonable economic

use of their property solely in order to -serve the broader

public (i.e., governmental) interests, or 2) are otherwise faced

with overreaching governmental requirements that fail to

substantially advance legitimate governmental interests. In

this action, the California Supreme Court has erected a

senseless procedural roadblock to property owners presenting

federal Fifth Amendment claims which wil] have the effect

of preventing the pursuit of these claims. In so doing, the

California Supreme Court has so departed from this Court’s

prior takings jurisprudence that this Court’s intervention is

necessary.

The NAHB’s interest lies in seeing that the law in this

field remains consistent, fair, and cognizant of the need to

protect the rights of the individual when confronted with

well-meaning government officials whose actions to achieve

a public good may impinge on constitutional guarantees. As

Justice Brandeis insightfully admonished:

Experience should teach us to be most on our guard

to protect liberty when .government’s purposes are

beneficent . . . The greatest dangers to liberty lurk in

insidious encroachment by men of zeal, well-meaning

but without understanding.’

The NAHB sincerely believes that the accompanying

brief will assist the Court in making its decision whether to

grant plenary review of the issues presented in the Petition.

The NAHB’s concerns are much broader than those of

petitioner since its members are faced with countless

regulatory decisions on a daily basis across the nation that

affect the use of privately held land. The vast majority of

these decisions come from local governments and, as pointed

out in the accompanying brief. some of these decisions do

not respect the constitutionally protected property rights of

individuals. While petitioner focuses his arguments on the

harm the City of Glendale inflicts on his concerns, the

NAHB ’s brief addressess the broader public policy reasons

why plenary review should be granted.

\

*Olmstead v. United States, 277 U.S. 438, 479 (1928)(Brandeis, J.,

dissenting).

For the above reasons, this Motion should be granted.

Respectfully submitted.

/s/_ Glen Franklin Koontz

Glen Franklin Koontz

1201 Fifteenth Street, N.W.

Washington, D.C. 20005

202-822-0359

Counsel for Amicus Curiae,

The National Association of

Home Builders

January 20, 1995 :

TABLE OF CONTENTS

TABLE OF AUTHORITIES il

INTEREST OF THE AMICUS CURIAE l

SUMMARY OF THE REASONS

FOR GRANTING THE WRIT l

REASONS FOR GRANTING THE WRIT l

CONCLUSION 5

TABLE OF AUTHORITIES

Cases

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

482 U.S. 264 (1981)

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264 (1981)

Hurley v. Kincaid, 285 U.S. 95 (1932)

Lucas v. South Carolina Coastal Council,

112 S.Ct. 2886 (1992)

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893)

Nollan v. California Coastal Commission,

483 U.S. 825 (1987)

Penn Central Transportation Co. v. New York,

438 U.S. 104 (1978)

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922)

ms

1,2,4

1,4

United States v. Jones, 109 U.S. 513 (1893)

:

i)

Nn N @

Watson v. Memphis, 373 U.S. 526 (1963)

Williamson County Regional Planning

Commission v. Hamilton Bank,

473 U.S. 172 (1985) 1,4

United States Constitution

Amendment Five assim

-iii-

SPAN itl Part elk Win cet it ia Oe

etre

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is set forth in the

preceding motion for leave to file this brief.

SUMMARY OF THE REASONS FOR GRANTING

THE WRIT

The California Supreme Court’s decision constructs a

senseless procedural roadblock in the paths of property

owners seeking to enforce their federal Fifth Amendment

rights. This decision so radically departs from this Court’s

prior takings jurisprudence that this Court’s intervention is

necessary sO as to ensure the proper, fair and consistent

administration of federal Fifth Amendment rights in the State

of California.

REASONS FOR GRANTING THE WRIT

The Fifth Amendment necessarily presumes that

public property may be lawfully appropriated by government

for public use. See Lucas v. South Carolina Coastal Council,

112 S.Ct. 2886, 2890 (1992); Nollan v. California Coastal

Commn., 483 U.S. 825, 831-32 (1987); First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304, 314-315 (1987); Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S.

172, 194 (1985); Hodel_v. Virginia Surface Mining &

Reclamation Assn., Inc., 452 U.S. 264, 297, n. 40 (1981);

Hurley v. Kincaid, 285 U.S. 95, 104 (1932); Monongahela

Navigation Co. v. United States, 148 U.S. 312, 336 (1893);

United States v. Jones, 109 U.S. 513, 518 (1883). The Fifth

Amendment is clearly "designed not to limit the

governmental interference with property rights per se, but

rather to secure compensation in the event of otherwise

proper interference amounting to a taking." First English,

482 U.S. at 315. Thus, given the clarity of this Court’s

jurisprudence with respect to this issue, the California

Supreme Court’s requirement that a property owner challenge

the validity of a city ordinance before seeking compensation

for an inverse condemnation is inexplicable.

The petitioner filed his action pursuant to, inter alia,

the United States Constitution, Amendment Five, seeking

damages from the City of Glendale ("City") due to a

regulatory taking of approximately 40% of his property.’

Petitioner did not challenge the validity of the City’s actions;

rather, petitioner conceded lawfullness.* In so doing,

petitioner proceeded exactly as did David Lucas.‘ The

California Supreme Court, however, denied petitioner’s claim

on the basis that petitioner failed to challenge the validity of

the City’s ordinance. As stated in the opinion:

'See Petition for Writ of Certiorari, Appendix A at A31-32.

See Petition for Writ of Certiorari at 3-4. The value of this portion

of petitioner’s property is approximately ten million dollars

($10,000,000.00). Petition for Writ of Certiorari, Appendix A

at A20, fn. 8.

*Id.

“See Lucas, 112 S.Ct. at 2890.

2

The gravamen of plaintiff's cause of action is

therefore a claim that the Glendale ordinance is

invalid on its face or as applied . . . Plaintiff

cannot transform the action into one which does not

challenge the validity of the ordinance, regulations,

and administrative actions by acquiescing in the

taking, assuming the validity of those actions,

and seeking only damages.°

This decision erects a senseless procedural roadblock in

petitioner’s path. More importantly, it is likely to seriously

erode the constitutional protections afforded by the Fifth

Amendment to the citizens of California. Indeed, it defies

common sense.

The California Supreme Court’s reasoning is as

suspect as its result. First, the California Supreme Court

claims--without any supporting authority--that a property

owner, prior to asserting a federal Fifth Amendment claim,

must first:

[A]fford the state the opportunity to rescind the

ordinance or regulation or to exempt the property

from the allegedly invalid development restriction

*See Petition for Writ of Certiorari, Appendix A at A3 1-32 (emphasis

added).

°A roadblock which is fatal to petitioner’s case since the statute of

limitations for challenging the City’s ordinance is 120 days.

Presumably, this is why the City was so eager to claim that

petitioner was obligated to chaHenge the ordinance’s validity. It

is not clear why the California Supreme Court would

countenance such an argument.

3

once it has been judicially determined that the

proposed application of the ordinance to the property

will constitute a compensable taking.’

Presumably, the California Supreme Court gleaned this idea

from this Court’s First English and Lucas decisions.* These

decisions do not, however, support the California Supreme

Court’s holding. Indeed, contrary to the California Supreme

Court’s claim, these decisions upon which petitioner relied

"do . . . support his thesis that the only precondition to a suit

for compensation’ is administrative application of the

ordinance restricting development of his property." * See also

Williamson County, 473 U.S. at 186.

Second, the California Supreme Court arrogantly

proclaims--again without any supporting authority--that the

"procedural requirements to which plaintiff objects do no

more than ensure to the state its right to a prepayment

judicial determination that the ordinance or regulation is

excessive and will constitute a taking... .""° The NAHB

respectfully submits that states do not have "rights"; rather,

individuals have rights. Indeed, a careful examination of the

United States Constitution fails to uncover any instance of the

granting of "rights" to a government. Assuming arguendo,

’See Petition for Writ of Certiorari, Appendix A at A12.

*See Petition for Writ of Certiorari, Appendix A at A8-10.

"See Petition for Writ of Certiorari, Appendix A at A10.

'°See Petition for Writ of Certiorari, Appendix A at A20 (emphasis

added).

that states do have rights, the California Supreme Court

declined to identify its authority for this asserted right,

perhaps because there is no authority for this proposition.

Third, and finally, the California Supreme Court

reasons that this procedural requirement is necessary because

"[flew local governments could afford the financial impact of

a decision that a widely applicable zoning or regulatory

ordinance brought about a taking of all affected property."!!

This rationale is without merit. A municipality must obey

the United States Constitution irrespective of its financial

condition. See Watson v. Memphis, 373 U.S. 526, 537

(1963). See also Penn Central Transportation Co. v. New

York, 438 U.S. 104, 152-153 (1978) (Rehnquist, J.,

dissenting, citing Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 416 (1922)). Indeed, as petitioner so astutely points out,

"{iJf the harm so inflicted is economically burdensome to

cities, it is a fortiori devastating to the individual victims.’

The NAHB submits that the Fifth Amendment is clear as to

upon whom should fall this economic burden.

CONCLUSION

If the Fifth Amendment’s takings clause means

anything, this decision cannot stand. The procedural

roadblock that the California Supreme Court has placed in the

path of property owners seeking compensation pursuant to the

Fifth Amendment runs contrary to the Constitution’s plain

"Id.

"See Petition for Writ of Certiorari at 17.

5

meaning, as well as the totality of this Court’s takings

jurisprudence. Therefore, for the reasons stated above and in

the Petition for Writ of Certiorari, the NAHB prays that this

Court issue a writ of certiorari to-review the judgment and

opinion of the California Supreme Court.

Respectfully submitted,

GLEN FRANKLIN KOONTZ

1201 Fifteenth Street, N.W.

Washington, D.C. 20005

202-822-0359

Counsel for Amicus Curiae,

The National Association of

Home Builders

January 20, 1995