Petition for Writ of Certiorari — Yardarm Restaurant, Inc. v. City of Pompano Beach

Supreme Court, U.S.

FILED

941795 MAY 1 - 1995

DEHICE OF He OSH

NO.

An Ube

Supreme Conrt of the Hnited States

October Term, 1994

YARDARM RESTAURANT, INC.

Petitioner,

Vv.

CITY OF POMPANO BEACH, FLORIDA

Respondent.

Sd

Petition For a Writ of Certiorari

To the District Court of Appeal

Fourth District of Florida

__¢

PETITION FOR WRIT OF CERTIORARI

~°

GALE CICERIC PAYNE

Counsel of Record

JAMES C. PILKEY

Attorneys for Petitioner

PAYNE, PILKEY & ASSOCIATES

1132 Southeast Second Avenue

Fort Lauderdale, FL 33316

(305) 761-9600

EARL FAIRCLOTH

RANDOLPH ADAMS

Of Counsel

150 Southeast 12th Street, Suite 301

Fort Lauderdale, FL 33316

(305) 525-4885

QUESTIONS PRESENTED FOR REVIEW

I. Does the Fifth Amendment require compensation to a

private property owner when a 13 year period of illegitimate

regulatory conduct causes foreclosure allowing a city to

purchase the property at a greatly reduced price?

II. Does the First English allowance of temporary takings

damages eliminate any cause of action under the Fifth

Amendment for a permanent taking when regulatory activities,

persisting over a 13 year period, cause foreclosure and loss of

private property?

III. Can a state constitutionally time bar a cause of action for

a permanent taking against it or its political subdivisions based

on a ripeness doctrine applicable to a temporary taking?

LIST OF PARTIES

The parties to the proceeding below were the petitioner,

Yardarm Restaurant, Inc., a Florida corporation and The

City of Pompano Beach, Florida.

RULE 29.1 LISTING

Yardarm Restaurant, Inc. has no parent companies or

subsidiaries.

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .......... i

I ss sab wns vec auwwcaacc. ii

SABLE OF AUTHORITIES .............-.00.00ee V

EI, ons ue cr dohbeescccacccsecs l

STATEMENT OF JURISDICTION ................. 2

CONSTITUTIONAL PROVISION INVOLVED ...... 2

peMammes OF HE CASE ... ww... c eee cues. 3

REASONS FOR GRANTING THE WRIT .......... 10

I. This Case Presents The Court With The

Opportunity To Dissolve Reigning National

Confusion On The Interplay Of Temporary v.

a ee 10

A. Do Regulations Which Fail To Advance

Legitimate State Interests But Do Not Deprive

Substantially All Economic, Beneficial Or

Productive Use Of Private Property Require

Compensation Under The Fifth Amendment? ... . . 1]

B. Does First English Abolish Permanent Regulatory

Ne hs rain os oA Gaus bas 15

ili

Page

C. If Permanent Regulatory Takings Still Exist, Do

Its Standards Differ From Temporary Regulatory

BANDS 5. 9. xc Haan ante eke ene 17

D. Can A State Avoid Paying Just Compensation By

Deeming A Permanent Taking To Be A Series of

Temporary Tekings And, Thus, Ripe Before The

Effects Of The Former Become Certain.

CAG RAMENIN. <0 b6.0n 040 k6k beens hee 23

SINEMA He

ee

iV

TABLE OF AUTHORITIES

Cases Page

Agins v. Tiburon,

pie eh, See ar orn pene 13-15

Dolan v. Tigard, __ U.S. _,

S50 A EEO so wkcenenvaeceunns 11, 12, 14, i$

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

ee es rrr ere roe 11, 15-17, 21

Lucas v. South Carolina,

oS eee ee eee Ue 14,15

MacDonald, Sommer & Frates v. Yolo County,

G2 e Ss. SOI, eh ek os eee Coe kc kes 16, 20

Nectow v. Cambridge,

ete eth SRP RIE ee esses wceseerrerereeirer 13

Nollan v. California Coastal Comm'n,

ae as... os cc oe nedcacehasi 11-15, 18

Penn Central Transportation Co. v. New York,

IG Ws Gr DGPS ervreeesserccanceaeie 13-15, 18

Pennell v. San Jose,

oy eae age erage geben tate novela mappa! 20, 21

Cases Page

Pennsylvania Coal Co. v. Mahon,

SE Us De SUPREME 50 5006 1bo6s hose Le 14

Pompano Beach v. Yardarm Restaurant, Inc.,

641 So. 2d 1377 (Fla. Dist. Ct. App. 1994) .... 13 passim

San Diego Gas & Electric Co. v. San Diego,

Pee ee es GEO LESEED 60 4 veasdbbentelesee 12, 15, 16

United States v. Dickinson.

re Se: Es 6 5 6 as ce ee 19-22

Webb's Fabulous Pharmacies, Inc. v. Beckwith.

oS Sk er 13

Williamson Planning Comm'n v. Hamilton Bank,

GES DU. De LEER OS) «9 46 Gs shaw ees 11, 16, 20, 21

Statutes

Oe Wie BEOEE 005 04000; 0a eRe ee eee 12

Miscelianeous

Charles C. Marvel, Annotation, State Statute of

Limitations Applicable To Inverse Condemnation

Or SimilarProceedings By Landowner To Obtain

Compensation For Direct Appropriation Of Land

Without The Institution Or Conclusion Of Formal

Proceedings Against Specific Owner, 26 A.L.R. 4th 68

CFRRS) 000s iccanne<snued bwesdunte eee 19

vi

Miscellaneous Page

Prof. Gideon Kanner, Case Digest (Ed Note)

Just Compensation, December, 1994 ...............23

Vil

In The

Supreme Court of the United States

October Term, 1994

NO.

YARDARM RESTAURANT, INC.

Petitioner,

V.

CITY OF POMPANO BEACH, FLORIDA

Respondent.

&

Petition For a Writ of Certiorari To the

District Court of Appeal Fourth District of Florida

.

PETITION FOR WRIT OF CERTIORARI

*

The Petitioner, Yardarm Restaurant, Inc. respectfully

requests that a Writ of Certiorari issue to review the September

9, 1994 judgment and opinion of the District Court of Appeal

for the Fourth District of Florida, petition for certiorari denied

by the Supreme Court of Florida, January 30, 1995.

Sd

OPINIONS BELOW

The memorandum order of the Supreme Court of Florida

dated January 30, 1995 refusing to review this case is reprinted

in the Appendix at A-1.

The opinion and judgment of the District Court of Appeal

Fourth District of Flori ita (Judges of the Fifth District sitting by

designation) is reported at 641 So.2d 1377 (Fla. Dist. Ct. App.

1994), and is reprinted in the Appendix at A-2.

The opinion and judgment of the Circuit Court for the

Seventeenth Judicial Circuit of Florida, Judge C. Lavon Ward

presiding, entered June 6, 1991, was not reported and is

reprinted in the Appendix at A-23.

*

STATEMENT OF JURISDICTION

Petitioner seeks review from the opinion and judgment of

the District Court of Appeal Fourth District of Florida of

September 9, 1994, Petition for Certiorari denied by the

Supreme Court of Florida on January 30, 1995. The Supreme

Court has jurisdiction to review this case by virtue of 28 U.S.C.

§1257(a).

5

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the United States Constitution

provides in pertinent part that "private property [shall not] be

taken for public use without just compensation."

ae

STATEMENT OF THE CASE

This is a case about a company that was forced to fight

City Hall in order to build a project it always had every legal

right to build. It won again and again and again until it won

itself into foreclosure, bankruptcy and the loss of its property.

The factual chronology is largely undisputed.

In 1959, two brothers opened the Yardarm Restaurant. The

restaurant was located on land overlooking the Hillsboro Inlet

which leads directly to the Atlantic ocean, and provided a

commanding view of the Hillsboro Inlet Lighthouse. The

Yardarm sat in the middle of an existing commercial district in

the City of Pompano Beach, Florida which provided for all

types of high volume consumer oriented endeavors, including

hotels, motels, liquor stores, bars, office buildings, theaters,

auditoriums, parking lots, hospitals and much more. None of

these businesses was restricted in height or density by any law

of the City of Pompano.

Eventually, a 14 story condominium was built in this

commercial district across the street from the restaurant. Since

the condominium was considerably taller than the existing

restaurant, many of its residents had a view of the Hillsboro

Inlet, the lighthouse and the ocean.

The Yardarm Restaurant was noted as one of the 10 best

and busiest restaurants ir. the State of Florida. The restaurant

was so successful in this special location that the brothers

conceived a plan to turn the Yardarm property into a European

style grand hotel and marina. In 1972 Yardarm hired an

experienced hotel architect to determine the feasibility of such

a project. Finding no height, density, zoning or any legal

restrictions whatsoever, Yardarm's preliminary hotel plans were

submitted to the city and approved.

The approval of this major project generated a great deal of

publicity. Not all citizens of Pompano Beach were happy with

the idea of the Yardarm project, particularly a few politically

influential citizens who feared the project would block their

view of the lighthouse and the beach. Thus began what the

opinion below labels as the "sorry saga" of the Yardarm.

Bowing to political pressure, public officials vowed the

project would never be built. The city refused to meet to

finalize site plans until it passed an ordinance restricting

building height to 10 stories. The ordinance immediately

blocked the building of the hotel. Yardarm applied for a legally

entitled exception ana was met with more resistance in the form

of building moratoriums, a change in density restrictions and an

entirely different interpretation of the setback laws. The mayor

of Pompano proclaimed that he would get the city commission

to so restrict the setback requirements that the only thing

Yardarm could build would be a "needle."

At this point the City was truly in a bind. There is no

dispute on this record that there was no legal means to stop the

Yardarm project and that its owners (at least through the late

1970's) had the independent financial means to build it. On the

other hand, serious political pressure was being applied to stop

the project. Initially, the City did the right thing.

On September 9, 1973, the mayor proposed to the City

Commission passage of a referendum to purchase the Yardarm

property (Tr. 1192-93, 1196). The proposal was defeated.

Instead, the City took a course which both the trial court and

4

the opinion below found did not advance a legitimate state

interest.

Yardarm eventually secured an ordinance allowing it to

build the 18 story hotel and was immediately met with a

lawsuit filed by a homeowner's group against the City seeking

repeal of the ordinance. Because city officials declared that

they hoped Pompano would lose the suit and that the City had

no interest in defending this suit, Yardarm had to intervene.

One and a half years later, Judge Jose Gonzalez found the

ordinance to be valid.

On February 14, 1974, Yardarm received its first building

permit. Four days later, the permit was revoked due to

"administrative oversights." These "oversights" included such

things as the plans having been submitted on the wrong color

paper. They were easily remedied and Yardarm re-applied for

a permit but was again refused. This time, the City claimed

Yardarm needed to more than double the proposed number of

parking spaces. When the City refused to budge on the

parking, Yardarm was again forced to go to court.

In June of 1974, Yardarm filed a declaratory relief action.

The City moved for summary judgment claiming Yardarm

"failed to exhaust administrative remedies," which the trial

court denied. However, the City appealed this denial of

summary judgment. Two years after filing suit, the Court of

Appeals ruled in Yardarm's favor. Thus, Yardarm was finally

able to proceed to trial before a visiting judge. On September

27, 1976, the trial court ordered Yardarm to be given a permit

upon presentation of plans in compliance with building and

zoning laws existing on February 14, 1974, the date the initial

permit was issued.

Now, three years and nine months after Yardarm first

approached the City with its plans, it could finally reapply for

a permit. Notwithstanding the court order, the City again

refused to issue a permit, still claiming Yardarm needed to

double its parking spaces. Litigation renewed, and on March

14, 1977 the court again found in favor of Yardarm. Yardarm's

second permit was issued the following day. In April, 1977

construction of the hotel began in earnest with the demolition

of the Yardarm Restaurant, driving of pilings and construction

of a seawall.

Less than two months after the second permit was issued,

more trouble arose. Unlike the initial permit, the second permit

did not include approval for the dock and marina which were an

integral part of the Yardarm project. After another year and

another trial, the City agreed to an order allowing the docks to

be built. This order required the City to provide any written

assurances required by the Corps of Engineers. Instead, the

City wrote the Corps of Engineers demanding that the dock

permit be denied.

While the parties were fighting this issue, the City again

revoked the building permit claiming insufficient work was

being done. Despite the prior court order that Yardarm's permit

was to be judged by standards in place on February 14, 1974,

this third revocation was based on 1979 rules. The local zoning

board ordered the City to reinstate the permit. The City refused

and instituted a lawsuit. The trial court ruled in Yardarm's

favor and the City appealed. While this litigation was ongoing

the City Manager commanded that no work could be done on

the property until all subsequent appeals were decided.

Once again, the appellate court ruled in Yardarm's favor.

Thus, on July 16, 1981, after a further delay of two years, the

6

permit was reissued for a third time. Due to unprecedented

inflation and increases in building costs specifically during the

1978-1981 period, the cost of the project nearly quadrupled.

Yardarm was forced to reorganize the project and seek outside

institutional financing.

Along with the need for institutional lenders came rules,

requirements and guidelines, such as size of the project, size of

the land, per room costs, affiliation with national hotel chains,

management agreements, and myriad other issues which

Yardarm did not have to address when it was still capable of

financing the project itself. For example, Yardarm brought in

Mr. Stanley Graves as "project manager." Mr. Graves was

project manager for Disney World and described as the best in

the United States.

When Mr. Graves began with the Yardarm he described the

project as a "slam dunk." Comparing the Yardarm with his

many other projects, including the initial Disney hotels, Graves

found everything was positive except for the lack of support

from the City. Other witnesses described the Yardarm property

as the most magnificent site for a hotel in North America.

Yardarm began an international effort to find financing.

To make the project a more normal lending situation Yardarm

acquired another piece of land directly across the street from its

original property. It paid for this acquisition and funded fees

for construction, architecture and consultants by mortgaging

the original parcel which it owned outright. Despite its

international efforts, Yardarm found it impossible to obtain

appropriate financing. The trial court specifically found that

Yardarm's inability to find financing was a direct result of the

City's activities.

During this period, Yardarm's plan was to do as much work

as possible to keep its permit alive while seeking permanent

financing. The City visited the project virtually every day and

continued makiag demands for changes. Despite Yardarm's

attempt to keep the project alive by using the proceeds from its

mortgages on the property, the City again deemed work

progress insufficient and on May 1, 1985, revoked the building

permit for the third and final time. The letter of revocation

gave Yardarm until October 30, 1985 (180 days) to refile its

plans. Yardarm refiled its plans on time, but the City ignored

them. In addition, the City Commission voted to strip Yardarm

of its 18 story zoning. Faced with this dilemma, Yardarm filed

suit to enjoin the commissioners from meeting a second time to

finalize the zoning repeal. The trial court granted this relief,

but was later reversed on appeal.

At this juncture, Yardarm had invested nearly $6 million

in building the hotel project. However, with its permit gone

and its zoning at risk, Yardarm suffered a well publicized

foreclosure of its property and bankruptcy. No one bid at the

foreclosure sale where the property reverted to the Resolution

Trust Corporation which in turn sold it to the City of Pompano

for $3.75 million. Thus 14 years after its initial plans were

approved, the City of Pompano finally succeeded in killing the

Yardarm project. Today, the Yardarm site is a city park.

On September 15, 1987, Yardarm Restaurant, Inc. sued

Pompano alleging, inter alia, inverse condemnation under the

Fifth Amendment and a violation of 42 U.S.C. §1983.

Claiming the §1983 action to be premature, the City moved for

summary judgment which was granted by the trial court. The

case proceeded to a bifurcated trial on the inverse

condemnation claim (liability only) which lasted 11 days.

In a lengthy opinion, the trial court ruled in favor of

Yardarm finding that a permanent taking occurred on October

30, 1985 when the last permit revocation became final. It also

held that since Yardarm's interference did not advance a

legitimate state interest, it was not necessary to demonstrate

loss of all use of property, but even if such a loss was required,

all use was denied. Further, the trial court determined that even

assuming there was a statute of limitations for inverse

condemnation claims in the State of Florida, the statute could

not have run in this case.

The City appealed to the Fourth District Court of Appeals.

Eighteen months after briefing and oral argument were

completed, the Florida Supreme Court sua sponte reassigned

the case to three particular judges sitting in the Fifth District.

Supplemental briefs and further oral arguments were required.

On September 9, 1994, over three years after the trial court

opinion, the Fifth District Judges, sitting by designation as

Fourth District judges, reversed the trial court finding that due

to an alleged change in the !aw during the pendency of the

appeal, there could be no permanent taking even though the

City's regulatory interference did not advance legitimate state

interests. Rather, the court found Yardarm's exclusive remedy

to be a §1983 claim and remanded the case for purposes of

considering that claim.

The opinion below also found no taking because Yardarm

was not denied all use of its property since it remained free to

put other projects on the land, and because the land itself still

retained value. Finally, the court time barred the inverse

condemnation claim before it became ripe under federal or

Florida law by finding that, if there was a taking, it occurred on

July 16, 1981 when Yardarm's third permit was issued, and not

9

when that permit was revoked in 1985.

In reaching these conclusions, the opinion below rejects the

trial court holding that all beneficial use of the property was

denied; the record evidence that the City would not have

allowed any other project to be built; and the record evidence

that no other project would have been economically feasible.

The opinion below also fails to explain why switching to

another use after expending $6 million for a hotel is

economically viable or how a property which it claimed to be

worth $8 million just prior to foreclosure was able to be

purchased for less than half of that amount by the City of

Pompano.

Yardarm filed a Petition for Certiorari in the Supreme

Court of Florida. That petition was denied on January 30,

1995.

*

REASONS FOR GRANTING THE WRIT

I. THIS CASE PRESENTS THE COURT WITH THE

OPPORTUNITY TO DISSOLVE REIGNING NATIONAL

CONFUSION ON THE INTERPLAY OF TEMPORARY

V. PERMANENT TAKINGS.

This Petition invites the Court to map previously travelled

but still uncharted areas of regulatory takings law. In recent

years, this Court has taken several cases for the purposes of

answering the constitutional questions posed by this case. The

questions often went unanswered due to problems such as lack

of ripeness. No such problem is present here. Further, this case

10

presents a unique opportunity for the court to delineate

standards as the states attempt to comply with, or (arguably)

avoid, the dictates of First English and its progeny.

A. Do Regulations Which Fail To Advance

Legitimate State Interests But Do Not Deprive

Substantially All Economic, Beneficial Or

Productive Use Of Private Property Require

Compensation Under The Fifth Amendment?

The initial question is whether the Fifth Amendment

requires just compensation for regulations which fail to

substantially advance legitimate state interests, even if they do

not deny substantially all use of property. The Court's

decisions in Nollan v. California Coastal Comm'n, 483 U. S.

825 (1987) and Dolan v. Tigard, __ U. S. __, 114 S. Ct. 2309

(1994), appear to answer the question affirmatively by virtue of

their holdings. But, a major issue in this case was not squarely

presented therein.

The same question presented here was squarely presented

in Williamson Planning Comm'n v. Hamilton Bank, 473 U. S.

172, 185 (1985), but left unanswered due to ripeness problems.

The unanswered question was whether a regulation viewed as

violative of the Fourteenth Amendment's Due Process Clause

"because it is an attempt by government to use its police power

to effect a result that is so unduly oppressive to the property

owner that it constitutionally can be effected only through the

power of eminent domain ... need not be remedied by ‘just

compensation.’ " /d., at 185. The court found that question

“must be left for another day." /d. This question is squarely

11

presented today. The opinion below specifically answers this

question in the affirmative.

Both Nollan and Dolan found, at least preliminarily, that

the regulatory permits conditioned on easements failed to

advance a legitimate state interest and could constitute a taking

requiring just compensation even though economically

beneficial use of the property remained intact. The majority

opinion in Nollan recognized that, "Our cases have not

elaborated on the standards for determining what constitutes a

‘legitimate state interest’ or what type of connection between the

regulation and the state interest satisfies the requirement that

the former substantially advance the later." /d., at 834. The

majority decision believed the standards to be different from

those applied to due process or equal protection claims. The

dissent (Justice Brennan) claims them to be the same. /d., at

834, n.3.

Dolan went one step further establishing a two-prong

evaluation in this area: (1) Whether the "essential nexus” exists

between the "legitimate state interest" and the regulation; and

(2) if so, whether the degree of the regulation is "roughly

proportional" to the projected impact of the proposed

development.

The second half of this bifurcated evaluation appears to

dispel the notion that a police power regulation not enacted in

furtherance of valid public purpose may not confer a "public

use" and thus may not trigger just compensation under the Fifth

Amendment as opposed to damages under 42 U.S.C. §1983 for

a Fourteenth Amendment due process violation. See e.g.

Justice Brennan's dissent in San Diego Gas & Electric Co. v.

San Diego, 450 U. S. 621, 656, n.23 (1981).

12

Under its facts Dolan could not specifically reach this

question, however, the decision below expressly holds that:

The lower court incorrectly ruled that a judgment for

inverse condemnation could be had, even in the

absence of a deprivation of substantially all use of

Yardarm's property, if Pompano Beach's interference

with Yardarm's plan for development were an invalid

exercise of its police power.

ek

Here, the lower court determined that the City's

actions were ‘illegal,’ ‘arbitrary and capricious,' 'not

taken to promote the public's health, safety or welfare,’

‘frivolous,’ 'dilatory' and a ‘usurpation of authority.’

Pompano Beach v. Yardarm Restaurant, Inc., 641 So. 2d 1377.

1384-85 (Fla. Dist. Ct. App. 1994). Essentially, this opinion

holds that because the City's conduct was so bad the Fifth

Amendment may be ignored. Compare Webb's Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980) ("the

Taking Clause of the Fifth Amendment ... stands as a shield

against the arbitrary use of governmental power.") Thus, the

lower court exterminates any Fifth Amendment remedy for

governmental regulations which fail to advance a legitimate

state interest.

The opinion below admits that regulatory takings law is

"one of the most confused areas in American Jurisprudence,"

Id., at 1384, and blames this Court. The culprit for this

confusion, says the lower court, is language used loosely in this

Court's decisions in Agins v. Tiburon, 447 U. S. 255, 260

(1980); Nectow v. Cambridge, 277 U. S. 183 (1928); Penn

13

Central Transportation Co. v. New York, 438 U. S. 104, 123

(1978); and Nollan, 483 U. S. at 834, n.3. Yardarm, 641 So.2d,

at 1384, n. 9.

From Penn Central to Lucas v. South Carolina, __ U. S.

_, 112 S. Ct. 2886 (1992), and at present, the test requiring just

compensation for a Fifth Amendment regulatory taking has

remained constant: "As we have said on numerous occasions,

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." Id., at 2893-94

(citing Agins) This test specifically laid out in the disjunctive

has weathered the trial of time. It has been cited, but in fairness

not necessarily analyzed, in virtually every decision of this

Court while grappling with a regulatory takings issue.

The Nollan regulation (permit for construction of ocean

front residence conditioned on a public easement across portion

of property) exceeded the "outer limits of legitimate state

interests" and, as such, constituted "an out-and-out plan of

extortion." /d., 483 U.S., at 837. The same held true for the

Dolan permit to double the size of a commercial store and pave

a parking lot conditioned on an easement. Although both

advanced legitimate governmental goals of unblocking ocean

views to the public, preventing flooding and reducing traffic

congestion, neither regulation passed constitutional muster.

The disproportionate degree of the regulation to the impact of

the proposed development flunked the "legitimate state interest"

prong of this disjunctive test triggering the taking feature of the

Fifth Amendment. In sum, the Court required compensation

for both regulations which exceeded "legitimate state interests"

even though the economically beneficial use of the property

was preserved.

14

However, Justice Holmes in Pennsylvania Coal Co. y.

Mahon, 260 U. S. 393 (1922), did not stop his analysis after

finding that the regulation reviewed (the Kohler Act) failed to

advance a legitimate state purpose but delved into a deprivation

of use inquiry. Thus, there is arguably conflict between No/lan

and Dolan and its jurisdictional ancestors on this issue which

could be resolved here.

As an alternative basis for its ruling, the lower court finds

no taking because there was no "deprivation of substantially all

economic, beneficial or productive use of the property."

Yardarm, 641 So.2d, at 1385.' This Court has devoted most of

its analysis in the area of regulatory takings to the deprivation

of economically beneficial use of land. Penn Central. 483 U.

S., at 104; Agins, 447 U. S., at 225: First English Evangelical

Lutheran Church of Glendale v. C. ounty of Los Angeles, 482 U.

S. 304 (1987); Lueas,__ U. S. __, 112 S. Ct.. at 2886. No

case, to date, from this Court has posed or answered the

specific question of whether the failure to advance a legitimate

State interest, by itself, will suffice to compel an award of

damages for a taking. This case presents the opportunity to do

so.

B. Does First English Abolish Permanent

Regulatory Takings.

The jurisprudence over the last couple of decades

generated in regulatory takings cases focused on the remedial

'The trial court after considering all the evidence at trial and relying on

cases from this Court determined that, "While it is not necessary to prove denial of

all use (for the reasons stated), Yardarm, in fact, was denied all use of its property.”

Yardarm, 641 So.2d, at 1383. (A-37). The appellate court reweighed the evidence

and reached a different conclusion.

15

aspects of takings, e.g. whether the remedy was simply to

invalidate an offending regulation as a substitution for

compensation. This topic was raised from 1980-1987 without

decision. Agins, 447 U. S., at 263; San Diego Gas, 450 U. S.,

at 630; Williamson, 473 U. S., at 185; and MacDonald,

Sommer & Frates v. Yolo County, 477 U. S. 340, 348 (1986).

The dissenting opinion of Justice Brennan in San Diego

Gas discussed the merits of this question and recognized that,

"Invalidation unaccompanied by payment of damages would

hardly compensate the landowner for any economic loss

suffered during the time his property was taken.” /d., 450 U.

S.. at 655. He further observed that, "Invalidation hardly

prevents subsequent unconstitutional regulations by the

government entity," allowing it to simply amend the offending

regulation and start anew, and so on, theoretically ad infinitum.

Id, 450 U. S., at 655, n.2.

The resolution of this remedial controversy culminated in

First English, 482 U. S. 304 (1987). Although First English

dealt with a regulation which was considered to advance a

legitimate state interest, it nevertheless reaffirmed the

government's right to abandon its intrusion, discontinue its

regulations, or acquiesce in a judicial pronouncement that its

regulation is unlawful. Given this, the Court warned that "the

landowner has no right under the Just Compensation Clause to

insist that a 'temporary' taking be deemed a permanent taking."

Id., 482 U. S.,at 317.

This petition seeks review to address the other side of this

coin tossed in First English: The government's right under the

Just Compensation Clause to insist that a permanent taking be

deemed a temporary taking. Stated differently, does First

English and its progeny bar a permanent taking where land-use

16

——— 7

regulations, repeatedly judicially invalidated, persist, causing a

foreclosure of the land and total loss of the fee simple interest

in the property.

It falls within the government's prerogative to ward off a

permanent taking and, at best, relegate it to a temporary status

by completely backing off its regulatory scheme or, at the very

least, shifting its regulatory gears into neutral. Thus, in theory,

if the government backs off, the landowner is made whole and

continues with his project, there should be no permanent taking.

But the question becomes where, as here, the sovereign opts

not to back off, and continues to implement the regulatory

scheme, must it compensate for the permanent effects of its

chosen course?

When the regulator chooses not to institute eminent

domain proceedings, but instead elects to place a heavy

governmental thumb on the head of one of its citizens causing

a complete loss of property by foreclosure, there can be nothing

at all temporary about the nature of the taking. For example, in

the instant case, Pompano decided against condemnation

proceeding because of the huge expense in condemning one of

the ten busiest restaurants in the state to convert the land to its

present, not for profit, use as a City Park. It used its regulatory

powers to achieve the same objective. Thus, we have the

flipside of First English: can the government by repeated

regulation convert temporary takings into permanent takings?

C. If Permanent Regulatory Takings Still Exist, Do

The Standards Differ From Temporary Regulatory

Takings.

Should this Court decide that the failure to advance a

"legitimate state interest" cannot alone establish a taking

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without some deprivation of use, then this case presents an

opportunity to provide appropriate boundaries. The decision

below, by eliminating "legitimate state interest" from the

inverse condemnation equation focused on the offending

regulations’ impact on the economic use of the property. Just

as Nollan drew the boundary on what exceeded "the outer

limits of ‘legitimate state interests’ in the takings and land-use

context," /d., 483 U. S., at 837, the Court here can set the "outer

limits" of denial of "economically viable use of property."* Of

particular national importance would be a determination as to

whether the degree of deprivation differs in temporary as

opposed to permanent takings.

The Florida appellate decision below rationalized that,

"While Yardarm's evidence may have demonstrated Pompano

Beach's determined opposition to Yardarm's construction of an

eighteen story hotel, there is no evidence of obstruction of any

other use." Yardarm, 641 So.2d, at 1385-86. In other words,

despite a 13 year, $6 million effort to build its hotel, Yardarm's

arguable ability to build a lemonade stand precludes

constitutional compensation. If the remarkable pattern of

regulation pressed by this City over a twelve year period to

delay and defeat a legally viable, reasonably expected and

investment-backed hotel project stops short of going "too far,"

conceivably no scenario of regulatory interference banning an

otherwise permitted use can invoke the constitutional

imperative of just compensation.

? This invites inquiry into the “economic impact of the regulation on the

claimant and particularly, the extent to which the regulation has interfered with

distinct investment-backed expectations... [as well as] the character of the

governmental action,” Penn Central, 438 U. S., at 124, all of which become more

obvious if not per se when property has been taken permanently and not merely

temporarily.

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This case presents a veritable wonderland for setting the

analytical boundary limits in this area of law. Through it the

court can address such questions as whether the complete loss

of a legally authorized expectation use constitutes a taking, and

whether the standards for denial of use (characterized

interchangeably as “economically beneficial," "economically

viable,” "all," "commercially impractical", etc.) are more

stringent in the context of temporary takings than for permanent

ones. To exact constitutional compensation in the face of

retaining the interest in land, at least theoretically. should be

more difficult than where the land as well as the expectation

use vested therein has been forever appropriated to the public

at the expense of the individual landowner.

D. Can A State Avoid Paying Just Compensation

By Deeming A Permanent Taking To Be A Series

of Temporary Takings And, Thus, Ripe Before The

Effects Of The Former Become Certain.

This Court has not passed upon any minimum standards for

when an inverse condemnation claim can be time barred for

almost 48 years - the last time being to reject a statute of

limitations defense to a judgment "of just compensation for the

taking of private property by the Government." United States

v. Dickinson, 331 US. 745, 747 (1947). Almost a half century

later, the complete lack of uniformity on this issue throughout

the country’ coupled with the expanding area of regulatory

*For example, even in the more empirical area of "physical invasion"

takings, the country is divided over how and when to time bar such claim. Charles

C. Marvel, Annotation, State Statute of Limitations Applicable To Inverse

Condemnation Or Similar Proceedings By Landowner To Obtain C. ompensation F or

Direct Appropriation Of Land Without The Institution Or C onclusion Of Formal

Proceedings Against Specific Owner, 26 A.L.R. 4th 68(1983).

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takings beckons an update. The question is not how many

years comprise a time bar but when, at the earliest, can the

clock start for Fifth Amendment purposes when a taking is

effectuated over a continuous period of time. Also, of national

importance is whether the clock begins to run at different times

depending on if the takings claim is temporary or permanent in

nature?

We know that the clock cannot begin to tick before a

taking claim becomes ripe. Williamson, 473 U. S., at 172;

Yolo, 477 U. S., at 340. See also Pennell v. San Jose, 485 U. S.

1, 10 (1988) (without a showing as to the consequences of the

regulation no case is presented for a takings claim). Ripeness

requires the governmental entity charged with implementing the

regulations to reach a final decision regarding the application

of the regulations to the property at issue. Finality means when

"the initial decision maker has arrived at a definitive position

on the issue that inflicts an actual, concrete injury."

Williamson, 473 U. S., at 193.

We also know that a different set of standards will apply

when the source of the taking is not a single event but a

continuing process of events. As declared more than four

decades ago in Dickinson, "when the Government chooses not

to condemn land but to bring about a taking by a continuing

process of physical events, the owner is not required to resort

either to piecemeal or to premature litigation to ascertain the

just compensation for what is really 'taken.' /d., at 749. In

Dickinson, the government caused a permanent flooding to land

by constructing a dam with the purpose of raising the river level

to make it more navigable. Until the "consequences of

inundation have so manifested themselves that a final account

may be struck," suit could be postponed. Id.

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In the case at bar, Pompano did not physically invade

Yardarm's property until it purchased the land for a song at

foreclosure. Before then, Pompano continually "flooded"

Yardarm's land with a barrage of regulations designed to kill

the hotel project and enable the government to ultimately own

the land for a portion of its actual worth. At the earliest, until

the City's last revocation of Yardarm's hotel permit became

final on October 30, 1985, Yardarm's taking claim lacked

Williamson ripeness. Under Dickinson and San Jose, Yardarm

was required to postpone suit until its damage/injury became

certain (e.g. loss of property through foreclosure), as the fruits

of the City's forbidden regulations were not yet realized.

The decision below puts another spin on this analysis by

throwing the temporary versus permanent distinction into the

fray. It held that, "If its property were effectively 'taken,'

Yardarm was not obliged to keep suing to invalidate the City's

decision ... damages were available for the temporary taking.'

"Yardarm, at 1387. Aside from the fact that First English was

not decided until approximately 6 years after the court started

the statute of limitations, and two years after Yardarm's

temporary taking claim was barred, this reasoning begs the

question of whether permanent takings are foreclosed by First

English. See Section B above.

Assuming Florida had a cause of action for temporary

takings prior to First English (which it did not), the real

question is whether a landowner must bring multiple cases for

temporary taking each time its permit is revoked and eventually

reinstated, as happened here. The question is particularly

compelling when the true extent of the injury did not become

complete until the total loss of the property through foreclosure.

Dickinson says no and should be applied to regulatory takings

as well as physical invasion takings. First English arguably

21

says yes, but only-if the government imposing the offending

regulation(s) no longer does so.

Pompano retained every opportunity to back off, stop and

reverse its course of regulatory behavior against this project. It

chose not to do so and instead continued to wage its regulatory

war against the property. After repeatedly throwing Yardarm

off the wall, at the point of a foreclosure, all the king's horses

and all the king's men couldn't put Yardarm together again.

The court below would place those aggrieved by takings

into a perennial "Catch 22" by foreclosing their right to sue

until finality and consequential injury are achieved, but then

time barring a claim once ripe because it's too late. As

announced in Dickinson, "The Fifth Amendment expresses a

principle of fairness and not a technical rule of procedure

enshrining old or new niceties regarding ‘causes of action’ -

when they are born, whether they proliferate, and when they

die." Jd. at 748. As the trial court in this case succinctly

stated, Yardarm was denied the right to be "dealt with fairly by

his government," - precisely what the Fifth Amendment

guarantees but the lower court deprives.

If the decision below goes unreviewed it will mean that

regulatory stubbornness causing five reviews by the City's

building department, three proclamations from the County

Board of Rules and Appeals, a Corps of Engineers’ assessment,

three permit revocations, seven trial court adjudications and

four appellate reviews culminating in the loss of private

property by foreclosure still falls short of going "too far."

Notice of the inequities of this case already extend outside

the State of Florida. After digesting the opinion below, one

national commentator wrote, "If ever you need an example of

22

eS -

outrageous pettifoggery that refuses to look at the facts as a

whole and simply ignores common sense and the most

rudimentary notions of equity, look no further than this

opinion." Prof. Gideon Kanner, Case Digest (Ed. Note) Just

Compensation, December, 1994, at page 5. Respectfully, even

James Madison would agree.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted,

GALE CICERIC PAYNE

JAMES C. PILKEY

PAYNE, PILKEY & ASSOCIATES

1132 Southeast Second Avenue

Fort Lauderdale, FL 33316-1008

(305)761-9600

Attorneys for Petitioner

April 28, 1995

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