Amicus Curiae Brief — Stubblefield Construction Co. v. City of San Bernardino

A ) Supreme Court, U.S. )

No. 95-114 (‘Tt / “Eel LED

IN THE SFP 19 108i

Supreme Court of the Gnited States . _.. a

OCTOBER TERM, 1995

STUBBLEFIELD CONSTRUCTION COMPANY AND

STUBBLEFIELD PROPERTIES,

Petitioners,

Vv.

CITY OF SAN BERNADINO,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of California

Fourth Appellate District, Division Two

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS, BUILDING INDUSTRY LEGAL

DEFENSE FONDATION, THE NATIONAL ASSOCIATION

OF INDUSTRIAL AND OFFICE PROPERTIES,

THE NATIONAL REALTY COMMITTEE,

THE NATIONAL MULTI HOUSING COUNCIL AND

THE TEXAS CAPITOL AREA BUILDERS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF THE PETITIONERS

MARY V. DICRESCENZO KENNETH B. BLEY*

THE NATIONAL ASSOCIATION COX, CASTLE & NICHOLSON

OF HOME BUILDERS 2949 Century Park East

1201 15th Street, N.W. 28th Floor

Washington, D.C. 20005 Los Angeles, CA 90067

(202) 822-0359 (310) 284-2231

N'CK CAMMORTA *Counsel of Record

THE BUILDING INDUSTRY

LEGAL DEFENSE FONDATION Attorneys for Amici Curiae

1330 South Valley Vista Drive THE NATIONAL ASSOCIATION OF

Diamond Bar, CA 91765 HOME BUILDERS, THE BUILDING

(909) 396-9993 INDUSTRY LEGAL DEFENSE

FOUNDATION, THE NATIONAL

ASSOCIATION OF OF INDUSTRIAL

AND OFFICE PROPERTIES, THE

NATIONAL REALTY COMMITTEE,

THE NATIONAL MULTI HOUSING

COUNCIL AND THE TEXAS

CAPITOL AREA BUILDERS

ASSOCIATION

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

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TABLE OF CONTENTS

Page

I. THE INTERESTS OF THE AMICI CURIAE

ARISE FROM THEIR MEMBERS’

CONCERNS AS TO THEIR ABILITY TO

OBTAIN JUDICIAL REVIEW OF ACTIONS

WHICH INVOLVE THE USE OF LAND . . 2

II. SUMMARY OF THE ARGUMENT ......7

SEs THE COURTS OF APPEALS

THAT HAVE THE EMPLOYED

ENTITLEMENT ANALYSIS

HAVE DISREGARDED ALMOST

A CENTURY OF THE

COURT’S ANALYSIS OF

WHAT CONSTITUTES

eet a a a a 10

IV. THE COURT HAS ANALYZED GOVERNMENTAL

INTERFERENCE WITH THE USE OF LAND

WITHOUT EVER CONCERNING ITSELF

WITH THE EXISTENCE OF DISCRETION IN

THE LAND USE REGULATORY AGENCY WHOSE

ACTIONS HAVE BEEN QUESTIONED . 13

A. The Court Has Analyzed Land

Use Regulations Imposed By

Local Governments To See If

Those Regulations Deprived

Landowners Of Their Rights

Se DMS PEOCOGSR . 2. s+ @ ss 14

B. The Court Has Analyzed Land

Use Regulations Imposed By

The Federal Government To

See If Those Regulations

Have Taken The Land Affected

Sy THOM « « 2 i a SSS 17

of The Court Has Analyzed Land

Use Regulations Imposed By

Local Governments To See If

Those Regulations Have Taken

The Land Affected By Them 18

D. The Court Recognized The

Existence Of A Property

Right In The Use Of Land In

Every One Of The Land Use

Cases It has Reviewed... 20

V. USING THE ENTITLEMENT THEORY OF

PROPERTY WOULD

READ THE PROTECTION OF LAND RIGHT OUT

OF THE CONSTITUTION ..... .- 22

VI. EXPEDIENCY AND A DESIRE TO AVOID

DEALING WITH LAND

USE ISSUES DO NOT JUSTIFY STRIPPING

LANDOWNERS OF THEIR CONSTITUTIONAL

PROTECTION « «© «© «© 6 &@ © * © * 27

Tepe ee ee ee

een

VII. COMCLAISION . «1s xe 4 33

tal dah i

ii

ces at

sa abeabe"

se 6 NAD Atte Be NE DOME Na AOD AN PO AS Bt

Sh ANAESN

Sasebles te hs

Woke AMA caer Hon

TABLE OF AUTHORITIES

Page(s)

CASES

Agins v. City of Tiburon,

0 ge OS EE le | ee ae

Ankenbrandt v. Richards,

~ mee, =, 242 B.Ce. 2206 (3992) ... oe

Board of Regents v. Roth,

ee a eee Ceres , 5 we ee Oe Ow! Ce 33

Boulder City v. Cinnamon Hills

Associates,

Oe | eh)! |) 23

Burford v. Sun Oil Co.,

Dao. eee CEUSP 5. 6 ot el lel ell 28

City of Eastlake v. Forest City

Enterprises, Inc.,

0 NG es 2 tas an

Colorado River Water Conservation

District v. United States,

reo. er Shee Oo Se ee le lee 27

De Blasio v. Zoning Board of Adjustment,

53 F.3d 592 (3d Cir.), petition for cert.

filed (1995) (No. 95-163) eS a ee ee 35

iii

TABLE OF AUTHORITIES

Page(s)

CASES (Cont...)

Dobbins v. City of Los Angeles,

AS U.S. Bae three 6 6 kk 8 8 ee le el Oe

Dolan v. City of Tigard,

- U.S. -, 114 §.Ct..2309(1994) .4,13,20,27

Eubank v. City of Richmond,

ane UO. 237 tone «ss ct Se eC OE

Fields v. Rockdale County,

785 F.2d 1558 (11th Cir. 1986) <

First English Evangelical Lutheran Church

v. County of Los Angeles,

O00. W.m. BOE 12900) we ee we ew el USE

Gardner v. City of Baltimore Mayor and

City Council,

969 F.2G 63 (4th Car. 1993) . « « « « a9

Goldblatt v. Town of Hempstead,

36S GU... GSO (2PGRF «ts st tlt hl thlUctmhlCUCUr

Gorieb v. Fox,

ry ee et a gf ee ee i5

Hadacheck v. Sebastian,

aan 2.8 See Cee a Se Row Se we 15

iv

Sin ie ct eatias

. Sete eat st NP ak Salk ile

snd, Lan alent

ea ok lle

TABLE OF AUTHORITIES

Page(s)

CASES (Cont...)

Kaiser Aetna v. United States,

666. 0.8... 360: 429001 «) 6. # ee Ses 17

Keystone Bituminous Coal Association v.

DeBenedictis,

“60 0.8... 670 (i007) «© +52 # & « &@ © BF

Lucas v. South Carolina Coastal Council,

- U.S. -, 112 S.Ct. 2886 (1992) .. 19-27

MacDonald, Sommer & Frates v. Yolo

County,

ST7 Wace 200. C3908) & od eae % Se ee eee

Markham v. Allen,

3a6. Wale See. SEeee! «© ¢- 2b eee Ss ae

Minnesota Mining Co. v. National Mining

Co., 70 U.&. (3 Weak.) S22 15066) « + 2a

Moore v. City of East Cleveland,

433 U.8. 496- (297 Ti. «2 é % eS Se ee

Nectow v. City of Cambridge,

ST? O.@. 332 1ARSe 4 ah 2 Ae ee

New Orleans Public Service, Inc. v.

Council of the City of New Orleans,

603G.8. 330 2908) «2 « -s «oe ake See

TABLE OF AUTHORITIES

Page(s)

CASES (Cont.)

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ..3, 12, 19, 26, 34

Pearl Investment Co. v. City and County

of San Francisco, 774 F, 2d 2460, cert.

denied, 476 U.S. 1170 (1986) . es sao See

Penn Central Transportation Co. v. City

of New York,

436 U.3. 1064 (3976) « 3 es 6 = ©, eee

Pennsylvania Coal Co. v. Mahon,

4260 U.3. 393° (iSfa? « «Gs eA eee

Pierce Oil Co. v. City of Hope,

246 U.S. 496 (239233) >. 3s eee es ee ee

Railroad Commission v. Pullman Co.,

3132 U.8. 496 (2368) sos es 219s se eee

Red Maple Properties v. Zoning

Commission,

222 Conn. 730, 610 A.2d 1238 (1992) . 22

Reinman v. City of Little Rock,

a37 U.3. 172 (i953) .«§ <5 «eke ee a5

River Park, Inc. v. City of Highland

Park, 23 F.3d 164 (7th Cir. 1994) . . 27

vi

baci

TABLE OF AUTHORITIES

Page(s)

CASES (Cont.)

RRI Realty Corp. v. Incorporated Village

of Southampton, 870 F.2d 911 (2d Cir.),

cert. denied, 493 U.S. 893 (1989) .23, 29

Security Management Corp. v. Baltimore

County, 104 Md.App. 234 (1995) .. . 23

Sequin v. City of Sterling Heights,

968 F.2d 584 (6th Cir. 1992) bls lei. ee

Siegert v. Gilley,

i Me >) ee 2 |

State of Washington ex rel. Seattle Trust

Co. v. Roberge, 278 U.S. 116

(1928), Pla er ak: & «a ae Glee: wae wes

Sylvia Development Corp. v. Calvert

County,

48 F.3d 810 (4th Cir. 1995) .... . 30

Thomas Cusack Co. v. City of Chicago,

ye a ee ks bys Re a a a eS

Thurston Motor Lines, Inc. v. Jordan K.

Rand, Ltd., 460 U.S. 534 (1983) .. . 34

Triomphe Investors v. City of Northwood,

49 F.3d 198 (6th Cir.) petition for cert.

filed (1995) (No. 94-1991) ..... . 30

vil

TABLE OF AUTHORITIES

Pages (s)

CASES (Cont...)

United States v. James Daniel Good Real

Property, - U.S. -, 114 S.Ct. 492 (1993)

14

United States v. Riverside Bayview Homes,

ime., 474 GU. 122% 4ARees 2 8 we we

Village of Arlington Heights v.

Metropolitan Housing Development Corp.,

627 U8. Bee- Chere. « 4 ee cw as ow COU

Village of Belle Terre v. Boraas,

O16 U8. 3 (30 ee 0 OO Oe a ee ee ee

Village of Euclid v. Ambler Realty Co.,

ata U.S. 365 (i926)... « By SB, 2a, 32

Welch v. Swasey,

214 U.S. 91 (1909) SS 6 & 6 eo oe Oe

Williamson County Regional Planning

Commission v. Hamilton Bank,

473 U.S. 172 (1985) . se « « « Be 28, 39

Younger v. Harris,

G0i U.@. -3F §E97TR sk kh wet ew

Zahn v. Board of Public Works,

ro: em Be Bey 3 ee eee ae 15

viil

UNITED STATES CONSTITUTION

Fifth Amendment 6, 7, 10, 11, 13, 17, 19

24

Fourteenth Amendment.6, 7, 10, 11, 19, 24

STATUTES

3 a ee ee ey ee a ee

cP am ee oe! ee a a a ee ee ee ee

MISCELLANEOUS

1 Anderson, American Law of Zoning, Fairly

debatable issue, § 3.20

(3d ed. 1986 and Dec. 1994 Cum. Supp.) .32

ix

In The

Supreme Court of the United States

October Term, 1995

No. 95-114

STUBBLEFIELD CONSTRUCTION COMPANY and

STUBBLEFIELD PROPERTIES,

Petitioners,

Vv.

CITY OF SAN BERNARDINO,

Respondent.

BRIEF OF THE NATIONAL ASSOCIATION OF

HOME BUILDERS, THE BUiUDING INDUSTRY

LEGAL DEFENSE FOUNDATION, THE NATIONAL

ASSOCIATION OF INDUSTRIAL AND OFFICE

PROPERTIES, THE NATIONAL REALTY

COMMITTEE, THE NATIONAL MULTI HOUSING

COUNCIL and THE TEXAS CAPITOL

AREA BUILDERS ASSOCIATION AS AMICI

CURIAE

IN SUPPORT OF THE PETITIONERS

The National Association of Home

Builders ("NAHB"), the Building Industry

Legal Defense ("BILD") Foundation, the

National Association of Industrial and

Office Properties ("NAIOP"), the National

Realty Committee ("NRC") the National

Multi Housing Council ("NMHC"), and the

Texas Capitol Area Builders Association

("TCABA") have received the parties’

written consent to file this brief as

amici curiae in support of the petitioner

and have filed the letters of consent

with the Clerk of the Court.

I.

THE INTERESTS OF THE AMICI CURIAE

ARTSE FROM THEIR MEMBERS’ CONCERNS AS TO_

THEIR ABILITY TO OBTAIN JUDICIAL REVIEW

OF ACTIONS WHICH INVOLVE THE USE OF LAND

The NAHB represents over 180,000

builder and associate members throughout

the United States. 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 or remodelers. It is the

voice of the American shelter industry.

It is, therefore, concerned with any

judicial decision that calls into

question the right of its members to use

their land and, when their right to use

land is unduly interfered with by local

governmental actions, to seek judicial

review of those actions.

The NAHB has been before the Court

as an amicus curiae or as "of counsel" to

the property owner in a number of cases

involving the rights of landowners to use

their property and the remedy to be

applied when those rights are interfered

with. These include Agins v. City of

Tiburon, 447 U.S. 255 (1980), San Diego

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

450 U.S. 621 (1981), Williamson County

Regional Planning Commission v. Hamilton

Bank, 473 U.S. 172 (1985), MacDonald,

Sommer & Frates v. Yolo County, 477 U.S.

340 (1986), Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), and

Dolan v. City of Tigard, - U.S. -, 114

S.Ct. 2309 (1994).

The BILD Foundation is a wholly

owned subsidiary of the Building Industry

Association of Southern California, a

constituent part of the NAHB, whose 1,400

members include a significant number of

residential developers and associate

businesses that take part in building 70%

of all new residential units annually in

the Southern California region.

NAIOP is a professional organization

of 5,000 individuals engaged in owning,

managing, and developing industrial and

office buildings in the United States and

internationally. Its members include not

only the nation’s leading commercial real

* The Court’s opinion cited the NAHB’s

brief. 483 U.S. at 840.

estate developers, but also architects,

brokers, master planners, engineers,

property managers, banks, insurance

companies, and other real estate

financial groups.

The NRC serves as real estate’s

roundtable in Washington where it leads

the active involvement of the nation’s

principal real estate owners, advisors,

builders, investors, lenders, and

managers in the national policy process.

The NMHC is a national association

representing the interests of the

nation’s largest owners and operators of

multi-family rental housing. Its members

are engaged in all aspects of the

development and operation of rental

housing including ownership, building,

financing, and management involving

millions of rental housing units. Since

its formation in 1978, the NMHC has been

actively involved in all facets of public

policy that are of strategic importance

to participants in the multifamily

housing industry.

The TCABA is a trade organization

with over 700 members who are single and

multi-family house builders, land

developers, remodelers, and product or

service companies involved in the house

building industry.

The amici curiae submit their amici

curiae brief in support of the

petitioners in the present case in order

to assist the Court in determining

whether to grant its writ of certiorari

to determine if the property protected by

the Fifth and Fourteenth Amendments to

the Federal Constitution inheres in the

ownership of land or if, as asserted by

several of the federal circuits and the

state courts which have begun to follow

those circuits, the existence of a

protected property right in the use of

land exists only when government has no

discretion with respect to that use.

zi.

SUMMARY OF THE ARGUMENT

The petitioners’ brief in support of

their petition for certiorari has pointed

out that the decision in the case at bar

followed the courts of appeals for

several of the federal circuits which

have adopted an "entitlement" theory to

determine when a property right worthy of

constitutional protection exists; a

theory which holds that the property

right protected by the Fifth and

Fourteenth Amendments to the federal

Constitution arises in the land use

context only when the use of that land is

not subject to discretionary governmental

regulation, i.e., when the approval

sought must be granted. This is contrary

to the decisions of this Court which have

held that the property right protected by

the Constitution is the right to use land

subject, of course, to reasonable

regulation.

The adoption of the entitlement

theory has the effect of stripping land

cf all constitutional protection which is

neither correct nor necessary. The

concerns which have been identified by

the circuits which have adopted the

entitlement theory have centered

primarily on fears that a broader

recognition of what constitutes property

in the land use regulation context will

cause the federal courts to become super

boards of zoning Sineaie. cotetivehinn

their views of what constitutes

reasonable land use regulation for that

of the properly constituted local

governmental authorities. These fears

are without foundation.

Other mechanisms, including the

abstention doctrine set forth over 50

years ago in Railroad Commission v.

Pullman Co., 312 U.S. 496 (1941), and the

deferential "fairly debatable" rule set

forth 70 years ago in Village of Euclid

v. Ambler Realty Co., 272 U.S. 365

(1926), guarantee that the federal courts

will not become boards of zoning appeals

which will substitute their own judgments

for those of local land use authorities.

The intended effect of the adoption

of the entitlement theory by the federal

courts is to force land use cases back

into state courts. The unintended result

has been an uncritical adoption of the

entitlement theory by some state courts

which means, in those states, that a

landowner is stripped of constitutional

protection in the land use regulation

context regardless of where judicial

review is naib While abstention is

not available in state courts, the same

deferential "fairly debatable" rule is

routinely used.

Although the present petition seeks

review of a state court decision, the

stakes are much higher. Review by this

Court is necessary to tell both federal

and state courts whether the Fifth and

Fourteenth Amendments have any

application at all in the land use

regulation context.

10

This Court has held that the use of

land is part of the property protected by

the Fifth and Fourteenth Amendments.

"And the Court has frequently

emphasized that the term

‘property’ as used in the

Taking Clause includes the

entire ‘group of rights

inhering in the citizen’s

fownership].’ United States v.

General Motors Corp., 323 U.S.

373 (1945). The term is not

used in the ‘vulgar and

untechnical sense of the

physical thing with respect to

which the citizen exercises

rights recognized by law.

[Instead, it] ... denote[s] the

group of rights inhering in the

citizen’s relation to the

physical thing, as the right to

possess, use and dispose of it.

The constitutional

provision is addressed to every

sort of interest the citizen

may possess.’ Id., at 377-378

(emphasis added)." Penn

Central Transportation Co. v.

City of New York, 438 U.S. 104,

142-143 (1978) (Rehnquist, J.,

dissenting).

In the absence of zoning, the owner

of land has the right to use that land

for any purpose not prohibited by the

11

common law of nuisance. City of Eastlake

v. Forest City Enterprises, Inc., 426

U.S. 668, 681 (1976) (Stevens, J.,

dissenting). For this reason, the Court

has held that the property right inheres

in the ownership of land.

"The right of the

[landowner] to devote its land

to any legitimate use is

property within the protection

of the Constitution." State of

Washington ex rel. Seattle

Title Trust Co. v. Roberge, 278

0.3. 236, 12% (i926).

The Court has also held that the use of

land is not a governmental benefit but,

rather, a right, the exercise of which

"can be subjected to legitimate

permitting requirements...." Nollan v.

California Coastal Commission, 483 U.S.

825, 833 n.2 (1987).

12

unde choke

Property, in the land use regulation

context, receives its constitutional

protection under the Fifth Amendment,

which prohibits the federal government

from taking property without the payment

of just compensation, and the Fourteenth

Amendment, which prohibits the states

from depriving anyone of property without

due process of law and which also

incorporates the Fifth Amendment’s

prohibition against uncompensated

takings. Dolan v. City of Tigard, - U.S.

-, 114 S.Ct. 2309, 2316 (1994).

It is precisely because the Court

has held that it is the ownership of land

which is the property right to be

protected by the Fifth and Fourteenth

12

Amendments that it has repeatedly

reviewed actions taken by federal and

state agencies when landowners have

contended that those actions have

violated their constitutional rights.

Further, the Court’s repeated

willingness to review land use cases

demonstrates its continued adherence to

the fact that "individual freedom finds

tangible expression in property rights."

United States v. James Daniel Good Real

Property, - U.S. -, 114 S.Ct. 492, 505

(1993).

A. The Court Has Analyzed Actions By

Local Governments T nd Use

Regulations Deprived Landowners Of

Their Rights To Due Process

There are a number of cases where

the Court has looked to see whether

actions taken by local governmental

agencies involving the regulation of land

have violated the landowners’ Fourteenth

14

Te eee VP ee ee

2 ba het ore etal Coplecsintns 1b ps

Bele is BABS ated «Aare! MB chew oatnedin

ab i ania Whine

en Te Te) Tee ne en One tA T

Amendment’s right to due process. These

include Dobbins v. City of Los Angeles,

195 U.S. 223 (1904), Welch v. Swasey, 214

U.S. 91 (1909), Eubank v. City of

Richmond, 226 U.S. 137 (1912), Reinman v.

City of Little Rock, 237 U.S. 171 (1915),

Hadacheck v. Sebastian, 239 U.S. 394

(1915), Thomas Cusack Co. v. City of

Chicago, 242 U.S. 526 (1917), Pierce Oil

Co. v. City of Hope, 248 U.S. 498 (1919),

Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926), Zahn v. Board of

Public Works, 274 U.S. 325 (1927), Gorieb

v. Fox, 274 U.S. 603 (1927), Nectow v.

City of Cambridge, 277 U.S. 183 (1928),

State of Washington ex rel. Seattle Trust

Co. v. Roberge, 278 U.S. 116 (1928),

Goldblatt v. Town of Hempstead, 369 U.S.

590 (1962), Village of Belle Terre v.

Boraas, 416 U.S. 1 (1974), City of

Eastlake v. Forest City Enterprises,

15

Inc., 426 U.S. 668 (1976), Village of

Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977),

Moore v. City of East Cleveland, 431 U.S.

494 (1977), and Williamson County

Regional Planning Commission v. Hamilton

Bank, 473 U.S. 172 (1985).

All of these cases recognized that

the use of land may be regulated but that

the regulations must be reasonable; local

governmental agencies do not have the

right to act in an arbitrary or

capricious manner when they regulate the

use of land.

"The governmental power to

interfere by zoning regulations

with the general rights of the

land owner by restricting the

character of his use, is not

unlimited, and, other questions

aside, such restriction cannot

be imposed if it does not bear

a substantial relation to the

public health, safety, morals,

or general welfare." Nectow,

supra, 277 U.S. at 188.

16

iti

Nectow involved a landowner’s desire

to obtain a building permit but the Court

did not review Cambridge’s building code

to determine whether the landowner was

entitled to that permit as a matter of

right nor whether the City had the

discretion to grant or withhold it.

Nectow does not stand alone; in none of

the cases cited above did the Court

explore, or even mention, the fact that

the actions involved were discretionary.

Government To See If Those Actions

Vv Them

The Court has analyzed actions by

the federal government to determine

whether actions involving the use of land

have taken land under the Fifth

Amendment. These include Kaiser Aetna v.

United States, 444 U.S. 164 (1979), and

17

United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121 (1985).

Both Kaiser Aetna and Riverside

Bayview involved discretionary dredge and

fill permits administered by the Army

Corps of Engineers. 33 U.S.C. §§ 403 and

1344. The Court did not explore, or even

mention, the fact that the permits were

discretionary.

eG, The Court Has Analyzed Land Use

Regulatory Actions By Local

Governments To See If Those Actions

Have Taken The Land Affected By Them

The Court has analyzed a number of

actions involving land use by state and

local governments to determine whether

the result was a taking which required

the payment of just compensation under

the Fifth Amendment as made applicable to

18

the states by the Fourteenth

Amendment?/. These include Pennsylvania

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

Penn Central Transportation Co. v. City

of New York, 438 U.S. 104 (1978), Agins

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

re

Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172

piel atin arn

(1985), MacDonald, Sommer & Frates v.

oe ET

Yolo County, 477 U.S. 340 (1986),

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987), First

English Evangelical Lutheran Church v.

wi pang © liners Raa A ae Noe aie dae imran She

County of Los Angeles, 482 U.S. 304

(1987), Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), Lucas v.

South Carolina Coastal Council, - U.S. -

,

end eel SE LAA 5 aI MDL OS A bie rT B

2/ The fact that the Due Process Clause

of the Fourteenth Amendment incorporates

the Takings Clause of the Fifth Amendment

demonstrates that the meaning of property

under both Amendments is the same.

19

112 S.Ct. 2886 (1992), and Dolan v. City

of Tigard, - U.S. -, 114 S.Ct. 2309

(1994).

Every one of these cases involved a

discretionary act by the state or local

government involved - either the

imposition of a restriction on the use of

the land involved or the denial or

conditional approval of a land use

permit. In none of the cases did the

Court explore, or even mention, the fact

that the action under review was

discretionary.

D. The Court Recognized The Existence

Of A Pr rty Right In Th

Land In Every One Of The Land Use

Cases It has Reviewed

The important issue in every one of

the cases cited above is not whether the

landowner won or lost; instead, it is the

fact that the Court addressed the issue

20

et Mesa 8, hen

of whether governmental action

constituted an improper interference with

the landowner’s property rights. The

rule set down by the Court is that,

before any federal court considers

whether a constitutional right has been

violated, the existence of that

constitutional right must be

demonstrated. Siegert v. Gilley, 500

U.S. 226 (1991).

When it comes to the property right

in question in cases where the issue is

the effect of governmental regulation on

the use of land, the Court could not have

been clearer. See Roberge and Nollan,

supra. However, even if the clear

statements in Roberge and Nollan had

never been made, history and common sense

indicate that constitutional protection

was meant to be provided whenever

government regulates the use of land.

21

Lucas, supra, 112 S.Ct. at 2899-2900

(ownership of real property enjoys more

protection than ownership of personal

property). See also Minnesota Mining Co.

v. National Mining Co., 70 U.S. (3 Wall.)

332, 334 (1866) (stare decisis

particularly important when real property

is involved).

Wa

USING THE ENTITLEMENT THEORY OF PROPERTY

WOULD READ THE PROTECTION OF LAND RIGHT

OUT OF THE CONSTITUTION

The petition has identified the

federal circuits wnich have adopted the

entitlement theory. (Petition at 19-25.)

The case at bar demonstrates that their

views have begun to influence state

courts. California does not stand alone;

other state courts have also adopted the

entitlement theory. See, e.g., Red Maple

Properties v. Zoning Commission, 222

22

ow

Conn. 730, 610 A.2d 1238 (1992), which

relies on Second Circuit case law, and

Boulder City v. Cinnamon Hills

Associates, 110 Nev. 238, 871 P.2d 320

(1994), and Security Management Corp. v.

Baltimore County, 104 Md.App. 234, 655

A.2d 1326 (1995), both of which rely on

Fourth Circuit cases.

If those circuits and those states

which use the presence of discretion in

land use regulation?’ to determine the

nonexistence of property rights are

correct, then a landowner has no property

3/ Discretion, in the land use regulation

context, means that the government has the

right to deny or impose conditions on a

landowner’s application. There is no

discretion only when there is a "certainty

or a very strong likelihood" that the

approval will be granted and "the

opportunity of the local agency to deny

issuance" is virtually nonexistent as a

matter of law. RRI Realty Corp. v.

Incorporated Village of Southampton, 870

F.2d 911, 918 (2d Cir.), cert denied, 493

U.S. 893 (1989).

23

rights under either the Fifth or the

Fourteenth Amendment. Peplying the

entitlement theory would mean that

government - federal, state, or local -

could regulate the use of land through

discretionary land use approvals but

that, having done so, it would not then

be required to provide the protection of

procedural due process nor would it be

subject to either the limitations of

substantive due process or the just

compensation requirement of the Fifth

Amendment .

The simplest example is, of course,

the imposition of zoning itself. Village

of Euclid, supra, upheld the validity of

the adoption of a comprehensive zoning

plan for the entirety of the village,

surely a discretionary act. However, if

the presence of discretion is enough to

strip land of its status as property,

24

then how can the Court’s decision in

Lucas v. South Carolina Coastal Council,

supra, be explained? In Lucas, the

Coastal Council drew a line in the sand

and said that there could be no

development seaward of that line.

Certainly no one would argue that the

Coastal Council did not have the

discretion to determine what uses, if

any, would be allowed seaward of the

line. But, if the entitlement theory

applies, then the discretion inherent in

the Coastal Council’s determination as to

what uses would be allowed seaward of the

line would have meant that there was no

property right involved and therefore no

possibility that Mr. Lucas’s land could

have been taken as a result of the

Coastal Council’s action.

The same thing is true when it comes

to the issuance of a discretionary land

25

use permit. Dolan and Nollan, supra,

involved precisely that situation. There

was no question that both the California

Coastal Commission and the City of Tigard

had discretion as to whether to issue

land use permits and, if so, what

conditions to impose on the issuance.

Neither Mrs. Dolan nor Mr. and Mrs.

Nollan could have prevailed on their

claims that the conditions imposed on the

issuance of the permits took their land

if the existence of discretion meant that

they had no property rights subject to

the protection of the Constitution.

In other words, if the entitlement

theory is correct, then no landowner has

any protectable property right in the use

of that land if discretionary land use

permits are required. Moreover, the

necessary corollary is that this Court

wrongly decided a score of cases,

26

beginning in 1904 and culminating in

Dolan, Nollan, and Lucas.

VI.

EXPEDIENCY AND A DESIRE TO AVOID DEALING

WITH LAND USE ISSUES DO NOT JUSTIFY

STRIPPING LANDOWNERS OF THEIR _

CONSTITUTIONAL PROTECTION

The Court has made it clear that the

federal courts have a "virtually

unflagging obligation" to exercise their

jurisdiction. Colorado River Water

Conservation District v. United States,

424 U.S. 800, 817 (1976). The exceptions

to that obligation are few and far

between. Ankenbrandt v. Richards, - U.S.

-, 112 S.Ct. 2206, 2210 (1992) (domestic

relations), and Markham v. Allen, 326

U.S. 490, 494 (1946) (probate). Neither a

dislike of the subject matter*’ nor a

/ The clearest example of the dislike

shown by some federal courts may be found

in River Park, Inc. v. City of Highland

27

desire to remove cases from dockets are

among the reasons that the Court has

given for refusing or abstaining from the

exercise of jurisdiction. New Orleans

Public Service, Inc. v. Council of the

City of New Orleans, 491 U.S. 350 (1989),

Colorado River, supra, Younger v. Harris,

401 U.S. 37 (1971), Burford v. Sun Oil

Park, 23 F.3d 164, 165 (7th Cir. 1994):

"Federal courts are not

boards of zoning appeals. This

message, oft-repeated, has not

penetrated the consciousness of

property owners who believe that

federal judges are more

hospitable to their claims than

are state judges. Why they

should believe this we haven’t a

clue; none has ever prevailed in

thie circuat, ..."

In fairness to the Seventh Circuit,

it must be pointed out that the Court of

Appeals recognized that the property right

inhered in the ownership of the land, that

zoning is a limitation on the uses which

would otherwise be available, and that

allowing government to impose land use

regulations does not mean that’ those

regulations are unreviewable. Id., 23

F.3d at 165-166.

28

Co., 319 U.S. 315 (1943), and Railroad

Commission v. Pullman Co., supra.

The circuits which have adopted the

entitlement theory frequently refer to

their desire not to become boards of

zoning appeals, with or without a cite to

Justice Marshall’s dissent in Village of

Belle Terre, supra, 416 U.S. at 13. See,

e.g., Gardner v. City of Baltimore Mayor

and City Council, 969 F.2d 63, 68 (4th

Cir. 1992), and RRI Realty Corp., supra,

870 F.2d at 918. Unfortunately, they

never refer to the fact that, while

Justice Marshall did not want to see

federal courts substitute their judgments

for those of local land use author-ities,

neither did he want to see federal courts

abdicate their obligation to provide

constitutional oversight of those judg-

ments. Id., 416 U.S. at 14. His dissent

argued that the Court had erred and that

29

it should have held the village’s

ordinance limiting the number of

unmarried residents who could occupy a

single family home unconstitutional.

Id., 416 U.S. at 20.

The circuits which have adopted the

entitlement theory have recognized that,

in many cases, the result will be that

arbitrary actions - whether substantive

Or procedural - will go unreviewed and

unremediated. See, e.g., Triomphe

Investors v. City of Northwood, 49 F.3d

198, 201-204 (6th Cir.), petition for

cert. filed (1995) (No.

94-1991) (substantive), Sylvia Development

Corp. v. Calvert County, 48 F.3d 810,

826-828 (4th Cir. 1995) (procedural and

substantive), and Sequin v. City of

Sterling Heights, 968 F.2d 584, 59C-592

(6th Cir. 1992) (procedural).

30

There are already ways to ensure

that federal courts do not cross the line

and unduly interfere with the judgments

of local land use regulators.

First, if there are substantial,

unresolved questions of state law which

would obviate the need for a

constitutional decision, Pullman

abstention is available. See, e.g.,

Fields v. Rockdale County, 785 F.2d 1558

(lith Cir. 1986), and Pearl Investment

Co. v. City and County of San Francisco,

774 F.2d 2460, cert. denied, 476 U.S.

1170 (1986).

Second, when a constitutional

decision is required, the decision of the

local land use authority must be upheld

if that decision is "fairly debatable."

Village of Euclid, supra, 272 U.S. at

388. This deferential standard of review

is, by itself, a guarantee that federal

ce |

courts will not become boards of zoning

appeals.

The possibility that courts will

substitute their views for those of the

local governmental authorities charged

with the responsibility for regulating

land use is as of much concern to state

courts as it is to federal courts and the

solution is the same. The "fairly

debatable" standard has been adopted by

virtually every state court. 1 Anderson,

American Law of Zoning, Fairly debatable

issue, § 3.20 (3d ed. 1986 and Dec. 1994

Cum. Supp.).

In other words, there is no

institutional reason why land use

regulation should not continue in the

future to receive the same constitutional

protection that the Court has accorded it

in the past and no reason why that

protection cannot be provided in either

32

the federal or the state courts of the

nation.

Vil.

CONCLUSION

The Court in Board of Regents v.

Roth, 408 U.S. 564, 571-572 (1972),

intended to extend the protection

provided by the Fourteenth Amendment

beyond that provided to land:

"The Court has also made clear

that the property interest

protected by procedural due

process extend well beyond

actual ownership of real

estate, chattels, or money."

[Footnote omitted. ]

It is no accident that the courts of

appeals and the state courts which have

adopted the entitlement theory as the

measure of the existence of a protected

33

property right when it comes to the

regulation of the use of land have not

cited the foregoing portion of Roth nor

have they cited either Roberge or Nollan.

Had they done so, they could never have

come to the conclusion that the presence

of discretion in land use regulation

means that there is no property right

which could possibly be in issue.

The right to use land, subject to

reasonable regulation, is a property

right protected by the Fifth and

Fourteenth Amendments. That is the law

as stated by the Court and it is binding

on the Courts of Appeals and the District

Courts until the Court chooses to change

it. Thurston Motor Lines, Inc. v. Jordan

K. Rand, Ltd., 460 U.S. 534, 535 (1983).

Given the division amongst the

34

circuits® and the clear

misunderstanding of the law evidenced by

those circuits and those state courts

which have adopted the entitlement

theory, it is necessary that the Court

grant the petition for writ of certiorari

in order to bring order to an

increasingly disordered lower federal

judiciary and, if the Court does not

speak, to avoid the potential

disappearance of constitutional

protection for the owners of land in

state courts.

5/ Two cases are presently before the

Court seeking review on the very issue

discussed in this brief. See Triomphe

Investors v. City of Northwood, No. 94-

1991, and De Blasio v. Zoning Board of

Adjustment, No. 95-163. Triomphe, a Sixth

Circuit case, followed the entitlement

theory; De Blasio, a Third Circuit case,

held that the property right inhered in

the ownership of the land.

35

DATED: September /f* 1995

Respectfully submitted,

KENNETH B. BLEY*

COX, CASTLE & NICHOLSON

Attorneys for AMICI CURIAE THE

NATIONAL ASSOCIATION OF HOME

BUILDERS, THE BUILDING INDUSTRY

LEGAL DEFENSE FOUNDATION, THE

NATIONAL ASSOCIATION OF INDUSTRIAL

AND OFFICE PROPERTIES, THE NATIONAL

REALTY COMMITTEE, THE NATIONAL MULTI

HOUSING COUNCIL, AND THE TEXAS

CAPITOL AREA BUILDERS ASSOCIATION

*Counsel of Record

MARY V. DICRESCENZO

THE NATIONAL ASSOCIATION

OF HOME BUILDERS

NICK CAMMAROTA

THE BUILDING INDUSTRY LEGAL

DEFENSE FOUNDATION

36