Amicus Curiae Brief — Hunziker v. Iowa

No. 94-1077 vAN 1

es

comers: a

In the

Supreme Court of the United States

October Term, 1994

+

ERBEN A. HUNZIKER, DONALD M. FURMAN,

R. FRIEDRICH AND SONS, INC., and

BUCK CONSTRUCTION COMPANY, INC.,

Petitioners,

V.

STATE OF IOWA,

Respondent.

+

Petition for Writ of Certiorari

to the Supreme Court of Iowa

°

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

+

* JAMES S. BURLING

VICTOR J. WOLSKI

GREGORY W. MCCRACKEN

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED ............ ll

INTEREST OF AMICUS CURIAE ............ 1

STATEMENT OF THE CASE .......... 2.202. 3

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

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI ............... 7

I. THE SUPREME COURT OF IOWA

IGNORED THE BACKGROUND

PRINCIPLES OF IOWA’S COMMON

LAW OF PROPERTY AND NUISANCE,

IN VIOLATION OF THIS COURT’S

PI oo ke a oe we ec eo 7

II. THE SUPREME COURT OF IOWA’S

DECISION WOULD EFFECTIVELY

ELIMINATE THE ABILITY OF A

LARGE CATEGORY OF PROPERTY

OWNERS TO SECURE COMPENSATION

FOR PER SE TAKINGS OF THEIR LAND .. 10

ee SR rere ts eee tr oh ee 13

TABLE OF AUTHORITIES CITED

Page

CASES

Agins v. City of Tiburon,

S67 U.S. Tao Ge: x ecb ee kee ss 2,11

Armstrong v. United States,

34 US. SOs 862s ee ee ea ee r)

Dolan v. City of Tigard,

o3 U.S...

52> 1. EG. Be ae es ee eas 2

First English Evangelical Lutheran

Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987) ............ 2

Hodel v. Irving, 481 U.S. 704 (1987) ........... 2

Hodel v. Virginia Surface

Mining and Reclamation

Association, 452 U.S. 264 (1981) ............ 2

Hughes v. State of Washington,

Jae Ua Ge i Neekin e ee ese ee es 12-13

Keystone Bituminous Coal

Association v. DeBenedictis,

|) ee ere 2

Lucas v. South Carolina Coastal

Council, 505 U.S. _,

120 L. Ed. 2d 798 (1992) ............ 2,5-10,13

MacDonald, Sommer & Frates v.

County of Yolo, 447 U.S. 340 (1986) .......... 2

Nollan v. California Coastal

Commission, 483 U.S. 825 (1987) ...... 2,10-11,13

Penn Central Transportation

Co. v. City of New York,

eas 5 fi bo kee cw dn ees 8

Pennell v. City of San Jose,

oO 2

Pennsylvania Coal Co. v.

peamon, fo U.S. 393 (1922) 2... cc ee 8

Preseault v. Interstate Commerce

Commission, 494 U.S. 1 (1990) ............. 2

San Diego Gas & Electric

Company v. City of San Diego,

ok | 2

Williamson County Regional

Planning Commission v.

Hamilton Bank of Johnson City,

es 2,12

Yee v. City of Escondido,

503 U.S. __, 118 L. Ed.

I eer Sen's ho x ox eee ee 2

iV

Page

RULES

Ee 644 694 64 RO Eee es ee Oe 3

STATUTES

ek Ee errr ee eee re eee 3

Pe Cheon ees SO ee EA eee 3,5

fe Bara a a mae ear Gre era gar es 3

UNITED STATES CONSTITUTION

Pe GE bo boas be oa ee eaA eee 7

POUTORONER AMIGMGMIONE . ww ct ce eases 7

No. 94-1077

+

In the

Supreme Court of the United States

October Term, 1994

ee

ERBEN A. HUNZIKER, DONALD M. FURMAN,

R. FRIEDRICH AND SONS, INC., and

BUCK CONSTRUCTION COMPANY, INC.,

Petitioners,

V.

STATE OF IOWA,

Respondent.

—

Petition for Writ of Certiorari

to the Supreme Court of Iowa

+.

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

—>

INTEREST OF AMICUS CURIAE

PLF is a nonprofit, tax-exempt corporation organized

under the laws of the State of California for the purpose of

litigating in the public interest. PLF has nearly 25,000

supporters nationwide, including donors from the State of

Iowa. Policy for PLF is set by a Board of Trustees

2

composed of concerned citizens, many of whom are lawyers.

PLF’s Board of Trustees evaluates the merits of any

contemplated legal action and authorizes such legal action

only when the Foundation’s position has broad support within

the general community. PLF’s Board of Trustees has

authorized the filing of an amicus curiae brief in this matter.

Attorneys for PLF have participated in numerous land

use takings cases before this Court and cther courts

representing both amicus curiae and property owners. For

example, PLF participated as amicus curiae in Lucas v. South

Carolina Coastal Council, 505 U.S. __, 120 L. Ed. 2d 798

(1992), and PLF attorneys represented the Nollans in

Nollan v. California Coastal Commission, 483 U.S. 825

(1987).'

Amicus seeks to augment the argument in the petition

for writ of certiorari. PLF believes that its public policy

perspective and litigation experience in support of property

' PLF has also participated as amicus curiae in other takings

cases before this Court such as in Dolan v. City of Tigard,

512 U.S. __, 129 L. Ed. 2d 304 (1994); Yee v. City of

Escondido, 503 U.S. __, 118 L. Ed. 2d 153 (1992);

Preseault vy. Interstate Commerce Commission, 494 U.S. |

(1990); Pennell v. City of San Jose, 485 U.S. 1 (1988); First

English Evangelical Lutheran Church of Glendale v. County

of Los Angeles, 482 U.S. 304 (1987); Hodel v. Irving,

481 U.S. 704 (1987); Keystone Bituminous Coal Associa-

tion v. DeBenedictis, 480 U.S. 470 (1987); MacDonald,

Sommer & Frates v. County of Yolo, 447 U.S. 340 (1986);

Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172 (1985);

San Diego Gas & Electric Company v. City of San Diego,

450 U.S. 621 (1981); Hodel v. Virginia Surface Mining and

Reclamation Association, 452 U.S. 264 (1981); and Agins v.

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

|

3

rights will provide an additional viewpoint with respect to the

constitutional and legal issues presented. Pursuant to

Rule 37.3, written permission from all parties to file this

brief has been lodged with the Clerk of the Court.

ca

STATEMENT OF THE CASE

In 1976 and 1978, the Iowa Legislature enacted statutes

governing significant findings of ancient human remains.

lowa Code §§ 305A.7, 305A.9, and 716.5. These statutes

can dramatically impact the ability of property owners to

make use of their land--although the existence of the impact

may not have been apparent in 1976 or 1978--and, indeed, in

most cases may not become apparent for many years hence.

Under the decision in this case below, once the impact of the

Statutes is discovered, the current owner may have no legal

recourse whatsoever for any relief.

The statutes enable Iowa’s state archaeologist, after

making a significant find of ancient human remains, to

follow two possible courses of action. The state

archaeologist may allow the disinterment of remains from the

property on which they were discovered for their subsequent

reinterment in a cemetery established specifically for that

purpose, or the state archaeologist may refuse to allow

reinterment of the remains elsewhere, in which case the state

archaeologist could prohibit any use of the property on which

Significant human remains were discovered which would

disturb them.

On May 1, 1990, the petitioners, Erben A. Hunziker,

Donald M. Furman, R. Friedrich and Sons, Inc., and Buck

Construction Company, Inc., who are land developers, sold

to Dr. Jon Fleming a lot in a 59-acre tract of farmland which

they platted for development. Dr. Fleming planned to build

a home on the lot. In April, 1991, just before excavation

4

began on the home’s basement, the state archaeologist

learned that Dr. Fleming’s lot had a Native American burial

mound on it. The state archaeologist probed the lot and

found some human bones. Later studies concluded that the

burial mound was made between 1,000 and 2,500 years

earlier by Native Americans of the Woodland Period, a

significant find. Before the probes neither petitioners nor

Dr. Fleming were aware of the burial mound. Hunziker v.

State of Iowa, 519 N.W.2d 367, 368 (Iowa 1994).

Pursuant to the ancient human remains statutes, the

state archaeologist prohibited disinterment of the burial

mound and required the establishment of a 50-foot buffer

zone around the 34-foot diameter burial mound. On

April 30, 1991, Dr. Fleming received a letter from the state

archaeologist warning him of the criminal penalties for

disinterment of the remains. Because of the size of the lot

and the situation of the burial mound with its surrounding

buffer zone near the center of the lot, construction of a house

on the lot was no longer feasible. Indeed, because of the

ancient human remains statutes and the actions of the state

archaeologist, the City of Ames refused to issue a building

permit for the lot. /d., Petition for Writ of Certiorari (Pet.)

at 3.

Petitioners refunded Dr. Fleming his purchase price and

architectural fees incurred for development of the lot.

Dr. Fleming in turn quitciaimed all his interest in the lot to

petitioners, including the right to sue for a taking. Peti-

tioners then offered the state archaeologist to move the

mound and its remains, at their expense, to a site in a

wooded city park, but the state archaeologist refused the

offer. The state archaeologist also refused to disinter the

remains and reinter them in the special cemetery established

for that purpose. Petitioners then brought a mandamus

action in state court, alleging that the state’s action was a

5

regulatory taking of private property without just compensa-

tion. They sought a writ of mandamus commanding the state

to condemn the lot and pay them just compensation for it.

Both petitioners, plaintiffs below, and defendant moved for

summary judgment, which the trial court granted the latter

and denied the former. 519 N.W.2d at 368, Pet. at 3-4.

Petitioners appealed to the Iowa Supreme Court, which

affirmed the trial court on a vote of four to one.?

519 N.W.2d at 371. The majority opinion cited Lucas v.

South Carolina Coastal Commission, 120 L. Ed. 2d 798, as

authority to deny petitioners compensation because their lot

was purchased after the enactment of the ancient human

remains statutes, which the court deemed part of the property

law affecting title to all land in the state containing

significant human remains by forbidding its development.

519 N.W.2d at 370-71. Under the court’s reasoning,

because both the statutes and the burial mound were in place

before petitioners purchased the lot, the right to develop the

lot was not one of their property interests, so they could not

receive compensation for it. Jd. at 371. The dissenting

opinion also relied on Lucas but concluded that Lucas

supported petitioners’ claim. Jd. at 372-73. The dissent

reasoned that the mere passage of the ancient human remains

Statutes did not effect a taking. Rather, a regulatory taking

occurred when the government applied the statutes to the lot

in a manner that precluded all economically viable use of it.

Id. at 373. The dissent also noted that Iowa Code § 305A.9,

"giving the state archaeologist authority to deny permission

to disinter human remains, is not a self-executing statute

creating a covenant running with the land.”

> Hunziker v. State of Iowa, 519 N.W.2d 367.

6

There is no dispute in this case that all economically

viable use of the property in question has been destroyed.

The dispute is whether petitioners should be precluded from

obtaining just compensation for the taking.

>

SUMMARY OF ARGUMENT

The denial of all economically beneficial use of

property by a law or regulation is a categorical taking, and

the Just Compensation Clause of the United States

Constitution requires that states pay compensation when this

occurs. The only exception, under Lucas, is when the

restriction on use can be rationalized as an extension of pre-

existing common iaw principles of property and nuisance.

Presented with a categorical taking of petitioners’ property,

the Supreme Court of Iowa failed to analyze the responsible

statutes in light of common law principles. Instead, the court

held that the mere passage of the statutes--even though the

statutes were not determined to have any effect on the

property until more than a decade later--creates an exception

to takings liability when the property was purchased after the

Statutes had passed. This holding conflicts with Lucas,

violates the Just Compensation Clause, and effectively

abolishes the right of subsequent purchasers to bring as-

applied takings challenges to laws requiring government

permission (such as variances, special use, or building

permits) prior to the use of land.

iia

7

a

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

I

THE SUPREME COURT OF

IOWA IGNORED THE BACKGROUND

PRINCIPLES OF IOWA’S COMMON

LAW OF PROPERTY AND NUISANCE, IN

VIOLATION OF THIS COURT’S REQUIREMENT

This case is an extreme example of the very situation

this Court attempted to preclude by the decision in Lucas v.

South Carolina Coastal Council, 120 L. Ed. 2d at 821-22.

Even though it is not disputed that all economically viable

use of petitioners’ property has been eliminated by applica-

tion of the ancient human remains statutes, see Hunziker,

519 N.W.2d 370-71, the Supreme Court of Iowa excuses the

state from a per se category of takings liability, solely on the

basis that the state passed a law under its police powers. Id.

Lucas makes clear that the Just Compensation Clause

of the Fifth Amendment, as applied to the states by the

Fourteenth Amendment, requires that compensation be paid

to property owners who suffer a loss of economically

beneficial or productive use of their property, unless their use

of the land could have been enjoined in the courts as a

private or public nuisance.’ The only laws passed by a state

> This Court left open the possibility that other common law

principles could be enlisted to avoid payment of compensa-

tion, primarily “to forestall ... grave threats to the lives and

property of others." Lucas, 120 L. Ed. 2d at 821 n.16

(continued...)

8

that can deprive private citizens of all economic use of their

property without payment of just compensation are laws that

can be justified under the common law nuisance and property

principles of that state, as it is "open to the State at any point

to make the implication of those background principles of

nuisance and property law explicit." Lucas, 120 L. Ed. 2d

at 822.

This Court’s use of common law principles as an

external, objective yardstick with which to assess a state’s

liability was no accident. See Lucas, 120 L. Ed. 2d at 823

n.18. Lucas stressed the “heightened risk that private

property is being pressed into some form of public service

under the guise of mitigating serious public harm” when such

an extreme prohibition on private use is in force. 120 L. Ed.

2d at 814. This Court found such a limitation to be an

"extraordinary circumstance” in which

it is less realistic to indulge our usual assumption

that the legislature is simply "adjusting the

benefits and burdens of economic life,” ... in a

manner that secures an "average reciprocity of

advantage” to everyone concerned.

Lucas, 120 L. Ed. 2d at 814 (quoting Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 124

(1978), and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,

415 (1922)).

> (...continued)

(citations omitted). Obviously, more than a police power

justification is required and recourse must be had to

preexisting principles.

9

In the “extraordinary circumstance” of deprivation of

all economically beneficial use, the self-interested

determinations of a legislature cannot be controlling.

Common law principles concerning property ownership and

use, developed in the neutral, disinterested courts by private

party adversaries, are a reliable safeguard against public

confiscation of private property rights.‘ The state may make

explicit the implications of these principles, but cannot

legislatively alter these "background principles" that inhere

in the title to property. See Lucas, 120 L. Ed. 2d at 821-22.

State courts must analyze legislative enactments to ensure

that they "do no more than duplicate the result that could be

achieved in the courts," id., else these courts are failing in

their duty to prevent "[g]overnment from forcing some

people alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole."

Armstrong v. United States, 364 U.S. 40, 49 (1960).

The Supreme Court of Iowa deviated from this

responsibility in a manner that, if allowed to stand, gives all

state courts the means to render Lucas a nullity. Rather than

determining whether the ancient human remains statutes can

be considered an extension of preexisting, common law

principles, the court in Hunziker instead proclaimed that,

once enacted, these statutes are the background principles.

519 N.W.2d at 371. Thus, everyone who purchases land

after the enactment of a regulation that could possibly be

applied to their property is buying much less than "an estate

‘ The only time the state can "inhere” limitations in the title

to land itself must be when the land first enters the private

domain. If the state places a covenant, condition, or restric-

tion on the use of land before selling it to private parties, it

has already in a sense “paid” for this limitation by accepting

a lower purchase price on account of the limitation.

10

with a rich tradition of protection at common law.” Lucas,

120 L. Ed. 2d at 814 n.7. They instead are purchasing title

to land with a serious latent defect that can render the

property worthless. If other courts follow the Hunziker

decision, then there is no preventing the eventual elimination

of the per se category of complete deprivation of economic

use of property. Under Hunziker, all a state need do is pass

a law authorizing localities to adopt property regulation that

precludes all use of private property and then wait for the

current generation of property owners to pass away.

Inhering in the title would be the possibility that all use of

land can be prohibited. Surely, Lucas envisions greater

protection for property rights than this.

II

THE SUPREME COURT OF IOWA’S

DECISION WOULD EFFECTIVELY ELIMINATE

THE ABILITY OF A LARGE CATEGORY OF

PROPERTY OWNERS TO SECURE COMPENSATION

FOR PER SE TAKINGS OF THEIR LAND

The Hunziker court failed to address the question of

what happens to the property rights of the previous owners

of petitioners’ land. This is a failing of profound

consequence, for the ability to transfer--along with the land

itself--the night to challenge the application of land use laws,

is crucial to the enforcement of property rights. As this

Court recognized in WNollan v. California Coastal

Commission, 483 U.S. at 833 n.2:

Nor are the [buyers’] rights altered because they

acquired the land well after the [government] had

begun to implement its policy. So long as the

[government] could not have deprived the prior

owners of the [property interest] without

1]

compensating them, the prior owners must be

understood to have transferred their full property

rights in conveying the lot.

The Supreme Court of Iowa held that prohibitions on

use run with the land, Hunziker, 519 N.W.2d at 371, but

assumed without analysis that the right to challenge these

prohibitions does not. This places property rights in peril,

particularly under the circumstances of this case. Unlike a

zoning regulation that is geographically defined, there is no

telling whether the ancient human remains statutes will apply

to one’s property. As ancient bones could be found buried

in any cubic inch of one’s land, it is practically impossible to

determine with certainty whether the statute applies, until one

discovers that it does.

Thus, a facial challenge based on economic impact,

which requires a showing that the challenged laws will

necessarily deny beneficial or productive use, cannot be

prosecuted since there exists the possibility that the law will

not apply. Cf. Agins v. City of Tiburon, 447 U.S. at 262

(facial challenge rejected because property owners “may be

permitted to build” on land). But if subsequent purchasers

acquire land in which the potential "limitation or restriction

on the use of the land inhered in the [purchasers’] title,”

Hunziker, 519 N.W.2d at 371, then the right to bring a

challenge to the laws as applied to that parcel of land

vanishes into thin air.

If there is no right to transfer the ability to challenge

land use regulations along with the subject property, then the

whole impact of the risk posed by the regulations will fall on

the seller. The owner at the time the regulations are enacted

will have to sell the property at a lower price--with the lower

price reflecting a "discount" for the probability that the

regulations will apply and the potential impact of the

12

regulations if they were to apply. This discount might be

large, but of necessity will not reduce the price down to the

level that will support a facial challenge, namely, a net of

zero. The buyer is gambling that all economic value will not

be deprived by application of the regulations; the seller

always loses the amount of the discount caused by the

existence of the potentially applicable regulations. And the

State becomes insulated from the liability to compensate

private property owners for the taking of all economic value

of their land.

Under the Hunziker approach, only owners of property

who possess the means to develop it prior to sale will be in

a position to challenge regulations enacted during the

pendency of their ownership. Given the wide sweep of poten-

tial jurisdiction, it is doubtful the state archaeologist can give

a final determination until development plans are far along

and the ripeness of an as-applied challenge hinges on this

determination. See Williamson County, 473 U.S. at 186-90.

Professional, commercial land developers could still, in some

occasions, protect their rights. Most individuals, such as a

retired couple selling all or part of their farmland for a nest

egg, cannot and will have to accept a reduced "discounted"

price caused by a cloud on their title due to the potential

impact of the regulations on their property. The sum of

these discounts will equal the value of the land withdrawn

from private use by the state, which avoids paying just

compensation.

The Iowa Supreme Court has, for most individuals,

eliminated the right to bring an as-applied takings challenge--

when a categorical taking normally would have been found.

Such a result violates the United States Constitution,

regardless of the branch of government that is to blame. See

Hughes v. State of Washington, 389 U.S. 290, 296-97 (1967)

(Stewart, J., concurring) ("a State cannot be permitted to

13

defeat the constitutional prohibition against taking property

without due process of law by the simple device of asserting

retroactively that the property it has taken never existed at

all").

ee

CONCLUSION

In failing to determine if the ancient human remains

statutes were an extension of the preexisting common law

principles of property and nuisance, the Supreme Court of

Iowa has violated the express requirements set forth by this

Court in Lucas v. South Carolina Coastal Council. Rather

than judge the enactments in light of the common law

yardstick, the court made these enactments the yardstick

itself. This decision removed the Lucas safeguards against

a State’s taking of property without payment of just

compensation. Further, it ignored the important issue

whether owners can transfer their full property rights,

including the right to challenge land use regulations, in

conflict with this Court’s decision in Nollan v. California

Coastal Commission.

14

To resolve these conflicts and to reaffirm the

fundamental rights of Iowa property owners, Pacific Legal

Foundation respectfully submits that this Court should grant

the petition for writ of certiorari.

DATED: January, 1995.

Respectfully submitted,

* JAMES S. BURLING

VicTorR J. WOLSKI

GREGORY W. MCCRACKEN

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae

Pacific Legal Foundation