Amicus Curiae Brief — Basile v. Town of Southampton

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No. 96-1852

In the

Supreme Court of the United States

October Term, 1996

> ae

DOROTHY A BASILE,

Petitioner,

Vv.

TOWN OF SOUTHAMPTON,

Respondent.

On Petition for Writ of Certiorari

to the Court of Appeals

for the State of New York

—r-

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

STEPHEN E. ABRAHAM *JaMEs S. BURLING

Of Counsel *Counsel of Record

Pacific Legal Foundation RS. RADFORD

2151 River Plaza Drive, Suite 305 Pacific Legal Foundation

Sacramento, Califorma 95833 2151 River Plaza Drive, Suite 305

Telephone: (916) 641-8888 Sacramento, California 95833

Facsimile: (916) 920-3444 Telephone: (916) 641-8888

Facsumile: (916) 920-3444

Attorneys for Amicus Curiae

Pacific Legal Foundation

| a0 i a ta Nea TSS TTT. TTT NTS SEES

° i Se

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves this Court for leave to file

the attached amicus curiae brief in support of the petitioner,

Dorothy A. Basile. Consent to the filing of this brief has been

granted by counsel for petitioner and has been lodged with the

Clerk of this Court. Respondent, the Town of Southampton, has

withheld consent, necessitating the filing of this motion.

IDENTITY AND INTEREST OF AMICUS CURIAE

_ Pacific Legal Foundation (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 over 25,000 supporters nationwide. Policy for PLF is set by

a Board of Trustees composed of concemed citizens, many of

whom are attorneys. 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 a brief amicus curiae in this case.

PLF has participated in numerous cases involving

constitutional protection of property rights before this Court.

Particularly noteworthy of PLF’s involvement in land use and the

Takings Clause cases, PLF attorneys were counsel of record in

' Pursuant to Supreme Court Rule 37.6, amicus curiae Pacific Legal Founda-

tion affirms that no counsel for any party in this case authored this brief in

whole or in part, and furthermore that no person or entity has made a

monetary contribution specifically for the preparation or submission of this

brief.

Nollan v. California Coastal Commission,’ and Suitum v. Tahoe

Regional Planning Agency.’ PLF attorneys also represent

petitioners in two closely related cases, Anello v. Zoning Board

of Appeals of Village of Dobbs Ferry and Kim v. City of New

York. PLF participated as amicus curiae in Agins v. City of

Tiburon,® Keystone Bituminous Coal Association v.

DeBenedictis,’ Hodel v. Irving,* First English Evangelical

Lutheran Church of Glendale v. Los Angeles County,’ Lucas v.

South Carolina Coastal Council,” Dolan v. City of Tigard," and

Babbitt v. Youpee.*

PLF seeks to augment the argument in support of the

petitioner. PLF believes that its public policy perspective and

litigation experience in support of property rights will provide an

additional needed viewpoint with respect to the issues presented

by this case.

2 483 U.S. 825 (1987).

> 65 U.S.L.W. 4385 (U.S. May 27, 1997) (No. 96-243).

‘ Appeal docketed, No. 96-1880.

5 Appeal docketed, No. 96-1794.

447 U.S. 255 (1980).

7 480 U.S. 470 (1987).

* 481 U.S. 704 (1987).

* 482 U.S. 304 (1987).

® 505 U.S. 1003 (1992).

" $12 U.S. 374, 114 S. Ct 2309 (1994).

2 US _,1178.C1.29(1997).

iii

For the above reasons, Pacific Legal Foundation requests

that its motion to file the following brief amicus curiae be

granted.

DATED: June ___, 1997.

Respectfully submitted,

STEPHEN E. ABRAHAM *JAMES S. BURLING

Of Counsel *Counsel of Record

Pacific Foundation R.S. RADFORD

2151 River Plaza Drive, Pacific Legal Foundation

Suite 305 2151 River Plaza Drive,

Sacramento, California 95833 Suite 305

Telephone: (916) 641-8888 Sacramento, California 95833

Facsimile: (916) 920-3444 Telephone: (916) 641-8888

Facsimile: (916) 920-3444

JAMES S. BURLING

Attorneys for Amicus Curiae

Pacific Legal Foundation

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI .........

IDENTITY AND INTEREST OF AMICUS CURIAE

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

QUESTION PRESENTED FOR REVIEW .........

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

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

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

STATEMENT OF THE CASE ...................

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

L THE DOCTRINE OF THE NEW YORK

COURT OF APPEALS UNDERMINES THE

CONSTITUTIONAL OBLIGATION THAT

JUST COMPENSATION-THE FAIR-MARKET

VALUE-BE PAID WHEN PRIVATE

PROPERTY IS CONDEMNED ..............

Il. THE NEW YORK COURT OF APPEALS

ALTERS FUNDAMENTAL PROPERTY

RIGHTS IN A MANNER INCONSISTENT

WITH THE UNITED STATES CONSTITUTION

AND THE DECISIONS OF THIS COURT ......... 10

B. Property Is Not Defined Each Time

Property Is Transferred But Rather When

TABLE OF AUTHORITIES CITED

Agins v. City of Tiburon, 447 U.S. 255

PN SS ARBRE oe a ii

Almota Farmers Elevator & Warelicuas

Co. v. United States, 409 U.S. 470

te) Pe pa es) ORCAS Soa oe y

Anello v. Zoning Board of Appeals of

Village of Dobbs Ferry, 1997 WL 68232

(N.Y. Feb. 18, 1997), appeal docketed,

No. 96-1880 (U.S. May 26, 1997) ............. ii,3,8-10

Armstrong v. United States, 364 U.S. 40

CRS Sa Ss oo is Fe OSA SPS... 18

Babbitt v. Youpee, U.S._,

Sa EE ee i a ses ee eos eee ii

Board of Regents of State Colleges v. Roth,

Sk As oe re 11-12

Brotherton v. Department of Environmental

Conservation of the State of New York,

No. 12809-90 (N_Y. Feb. 24, 1997) ................. a

Chicago, Burlington, & Quincy Railroad

Co. v. City of Chicago, 166 U.S. 226

ty pape Cae RS oy pad 256i hp ae eee 6

City of Cincinnati v. Louisville & Nashville

Railroad Co., 223 U.S. 390 (1912) ...............06- 6

Daniels v. State Road Department,

170 So. 2d 846 (Fla. 1964) .............0..000.008. 6

Dolan v. City of Tigard, 512 U.S. 374,

114 S. Ct. 2309 (1994)...... PRA Mea eer an oh ole st Pek ii

Douglaston Manor, Inc. v. Bahrakis,

Fe ee I eo FOF ooo icc vkvn cece ccesi 17

First English Evangelical Lutheran

Church v. Los Angeles County,

GEAR ae a i ee rs ii

Florida Rock Industries v. United States,

18 F.3d 1560 (Fed. Cir. 1994)... 0... 12

Gazza v. New York Department of

Environmental Conservation,

1997 WL 68590 (N.Y. Feb. 18, 1997) ........... 3,9-10

Government of Virgin Islandsv.

2.7420 Acres of Land, 411 F.2d 785

Coe ars ok a a ee ks 4

Graff v. Smith’s Admors, 1 U.S. 481 (1789) ............ 14

Hodel v. Irving, 481 U.S. 704 (1987) .................4. ii

Hugher v. Washington, 389 U.S. 290 (1967)............ 18

K&K Construction, Inc. v. Department of

Natural Resources, 551 N.W.2d 413

(1996), leave to appeal granted, 106712

(Mich. Sup. Ct. Apr. 28, 1997) ...........5....0.05. 4

Kaiser Aetna v. United States, 444 U.S. 164

I ate eS se Ne Sg oie gg 11

er en skat ued Ve

OO Ee ee Oy pid eaten. or Dene Ra

Vili Page

Keystone Bituminous Coal Association v. 7

DeBenedictis, 480 U.S. 470 (1987) ...............2.. ii

Kim v. City of New York,

65 U.S.L.W. 2541 (N.Y. Feb. 18, 1997),

appeal docketed, No. 96-1794

(US. Maas 39, 1998) oe 6S. se Bi iS ii,3,8,10

Kirby Forest Industries, Inc. v. United

States, 467 U.S. 1 (1984) .......... Meco Gegedt 6-7

Kohl v. United States, 91 U.S. 367 (1875) ............... 6

Lopes v. City of Peabody, 595 N.E.2d 812

(1992), review denied, 600 N:E.2d 171

(1992), cert. granted and judgment

vacated, 113 S. Ct. 1574 (1993), on

remand, 629 N.E.2d 1312 (1994) ........2.......2.. 4

Loretto v. Teleprompter Manhattan CATV,

458 U.S. 419 (1982)... . os aes. So $3 ieet 11,18

Loveladies Harbor, Inc. v. United States,

yo PR Eby e ee | | Ce rors © 13

Lucas v. South Carolina Coastal Council, :

SOS U.S. G05 C1992) Foe ie cs ee. ii,5,8,11,13-15

Moroney v. Mayor and Council of the

Borough of Old Tappan, 633 A.2d

1045 (1993), cert. denied, 642 A.2d

SOOG CIOS os os tabs arene. 364 bu pe 4,14

Nixon v. United States, 978 F. 2d 1269

CURE Cols ROOMS cba OMS iiiiais ok care aksneeens 11

Nollan v. California Coastal Commission,

cf 8 si : RRR £55 Soe See eee ean ii,12

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

PE BSA SL SOS ee 59,14

Perry v. Sindermann, 408 U.S. 593 (1972) ............. 11

Preseault v. United States, 100 F.3d 1525

ey ee 0 486 tee 12,14-16

Prune Yard Shopping Center v. Robins,

MOD TE, TR eek OS. ee Se 11

Riggs v. Township of Long Beach,

a BO gn ccc cer cece 7

Suitum v. Tahoe Regional Planning Agency,

65 U.S.L.W. 4385 (U.S. May 27, 1997)

| SESS R. 2 oe ii

United States v. 15.65 Acres of Land

in Marin County, 689 F.2d 1329

SEES SES a a 4

United States v. 50 Acres of Land, 469 U.S

iWin sPOREAA Ch cas \ BENE Cie. Hees eS 7

United States v. 564.54 Acres of Land,

EE 7

United States v. Causby, 328 U.S. 256

EEE Se ne rene “shes HH 12

United States v. Commodities Trading

ee 7

: x eR a $~—

Pee tO eee a

x Page

United States v. James Daniel Good Real

Prapetty, SID T5G. SS CUS oe 6 ci BR Sk BER 13

United States v. Miller, 317 U.S. 369 (1943)............. 7

United States v. Virginia Electric & Power

Co. FES TES. GOCE oes SSS ewseueind ds 5,7,12

Vanhorne’s Lessee v. Dorrance,

oe, BE POE. cg vn etn ns sweat hawis ate 6

Vatalaro v. Department of Environmental

Regulation, 601 So. 2d 1223 (Sth Dist.

Fla. 1992), review denied, 613 So. 2d 3

GPU: Saree 2 SEC aR aa a a 6 eee Se es vu 4

Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155 (1980) .................... 18

Wolff v. Commonwealth of Puerto Rico,

SRE FBG Pee Ces BOE Shi vin i iviadve days 4-5

United States Constitution

Pin Ame oe 4-7,10,12-14,17,19

Fourteenth AmORGMOM ... ow. cece sp ecec tates tis ec 6

Rules

wugnns COG NG OF 28. hi aS 1

PONT ay pebis bigs whee eee ees ee 1,1

xi Page

Miscellaneous

] Edward Coke, Institutes

ee oss ha oda Boveea vied. 12

Friedrich A. Hayek, The Road to

eo a ee ee es 12

Walter Lippmann, The Method of

on ay, SRSA eee 13

Nichols on Eminent Domain, 3d ed.,

I eee ee 5

ee pe hc 5

Robert Nozick, Anarchy, State, and

cies oh icin, SERRE ES Te ee ee 2

Zoning as a Factor in Determination

of Damages in Eminent Domain,

Fs ios Pe bWS SRK. es Sab ok eS 5

xii

QUESTION PRESENTED FOR REVIEW

May a state take private property by condemnation

and deny the landowner-condemnees just compensation by

precluding them from presenting evidence of the value of the

condemned property independent of the impact of confiscatory

land use restrictions that were adopted before the owner-

condemnees acquired title?

ca eer ee SS Lae

]

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

The interests of amicus curiae are set forth in the

preceding motion and are adopted herein. '

STATEMENT OF THE CASE

In 1980, Mrs. Basile’s family acquired 12 acres of

residentially zoned property in the Town of Southampton.

Petition for Writ of Certiorari at Appendix (App.) 4-1. The land

was subject to state and municipal land use restrictions based on

its location within wetlands and floodplain overlay districts.

App. A-1-2. Under an existing covenant, permission from the

Southampton Planning Board would be required before a home

could be constructed on the land. App. A-2.

In 1990, the Town of Southampton condemned

Mrs. Basile’s land. The Town valued the land at $117,500,

based upon the existence of wetlands restrictions which were

alleged to have precluded residential development. App. A-13.

Experts for Mrs. Basile appraised her lot at $960,000, the value

of the lot without the restrictions. The trial court limited

Mrs. Basile’s condemnation award to the lesser amount.

App. A-17. Rejecting Mrs. Basile’s appraisal, the court noted

that she acquired her property after the imposition of regulations

' Pursuant to Supreme Court Rule 37.6, amicus curiae Pacific Legal Founda-

tion affirms that no counsel for any party in this case authored this brief in

whole or in part; and furthermore that no person or entity, other than amicus

curiae, its members, or its counsel made a monetary contribution to the

preparation or submission of this brief.

which restricted the land to “recreational or aesthetic purposes.”

App. A-17.

The Supreme Court, Appellate Division, affirmed the

lower valuation of Mrs. Basile’s lot. App. A-9. The appellate

court observed that the land use restrictions precluded

Mrs. Basile from building on her lot. Therefore, she

did not have any reasonable investment-backed

expectation of building on the property, the

potential of building on the property was not part

of her title to begin with, and there was no

categorical regulatory taking.

App. A-10. Citations omitted.

The New York Court of Appeals affirmed, observing that

the valuation of condemned property should reflect existing

restrictions. App. A-3. The court also noted that property

interests are redefined by land use restrictions. Id.

Whatever taking claim the prior landowner may

have had against the environmental regulation of

the subject parcel, any property interest that

might serve as the foundation for such a claim

was not owned by [Mrs. Basile] who took title

after the redefinition of the relevant property

interests.

Id.

REASONS FOR GRANTING THE WRIT

: SUMMARY

The New York Court of Appeals ruled that Mrs. Basile

was not entitled to payment of the fair-market value of her land

condemned by the Town of Southampton. Although the applica-

tion of the restrictions denied Mrs. Basile all but “recreational or

aesthetic” uses of her land, the court held that she did not have

the right to challenge the restrictions because she acquired her

property after the land use restrictions were enacted. The New

York court has thereby determined that one of the most essential

of all property rights—the right to use—may be eliminated by

legislative enactment. Furthermore, when the Town of

Southampton used these legislative enactments to render useless

and devalue Mrs. Basile’s land, which it thereafter condemned,

the town had only to pay a fraction of the true value of her land,

thereby avoiding the constitutional requirement of just compen-

sation. The New York court has thereby undermined an essential

premise in condemnation law that the price the government must

pay for land it takes is the fair-market value—the amount for

which a willing buyer would purchase the property.

On the same day the Court of Appeals decided

Mrs. Basile’s case, New York’s highest tribunal also decided

three other cases on essentially identical grounds.’ Together

these decisions establish what amounts to a judicial doctrine that

property rights can be transferred by legislative fiat to the state

without payment of just compensation.’

The New York court’s doctrine is antithetical to deeply

rooted understandings of the relationships that define property.

The New York court’s treatment of these understandings

? Anello v. Zoning Board of Appeals of Village of Dobbs Ferry, 1997 WL

68232 (N.Y. Feb. 18, 1997), appeal docketed, No. 96-1880 (U.S. May 26,

1997); Gazza v. New York Department of Environmental Conservation,

1997 WL 68590 (N.Y. Feb. 18, 1997), and Kim v. City of New York, supra.

The New York court’s per se rule that land use restrictions can be insulated

from challenge once property is transferred was applied to each of these

cases, resulting in the owners being denied the ability to make economically

beneficial use of their property or being forced to suffer an occupation

without receiving just compensation.

> Less than one week after the Court of Appeals crafted its doctrine, lower

courts began applying and extending it. In Brotherton v. Department of

Environmental Conservation of the State of New York, No. 12809-90 (N.Y.

Feb. 24, 1997), a trial court held that an owner who was precluded from

making any economical use of his land had no protected property interest

because restrictive regulations were adopted prior to the property’s transfer

from a wholly owned corporation to the firm’s sole shareholder. The sole

legal ground cited for this decision was the new doctrine of the Court of

Appeals which is the subject of the present petition.

is contrary to that of at least four other states’ courts—

Florida, Massachusetts, Michigan, and New Jersey—which have

demonstrated a respect for the principles upon which our takings

jurisprudence has been based.* The doctrine is also inconsistent

with long-standing policies permitting owners of condemned

private land to present evidence of the value of their land in the

absence of land use restrictions that have a probability of being

changed.’ Although Mrs. Basile’s case does not involve a

* Vatalaro v. Department of Environmental Regulation, 601 So. 2d 1223,

1229 (Sth Dist. Fla.), review denied, 613 So. 2d 3 (Fla. 1992) (a property

owner entitled to compensation under Fifth Amendment where permit

request to build home in residentially zoned land denied, based on the

property’s status as a wetlands); Lopes v. City of Peabody, 59S N.E.2d 812

(1992), review denied, 600 N.E.2d 171 (1992), cert. granted and judgment

vacated, 507 U.S. 981 (1993), on remand, 629 N.E.2d 1312, 1314-15

(1994) (purchaser of land subject to land use restriction at the time of

purchase has every right to challenge the continued application of the

restriction), K&K Construction, Inc. v. Department of Natural Resources,

551 N.W.2d 413 (1996), leave to appeal granted, 106712 (Mich. Sup. Ct.

Apr. 28, 1997) (timing of a regulation and acquisition of property cannot act

to preclude just compensation where it would otherwise be due); Moroney v.

Mayor and Council of the Borough of Old Tappan, 633 A.2d 1045, 1048

(1993), cert. denied, 642 A.2d 1004 (1994) (property owners “stand in the

shoes of their predecessors in title” to challenge local zoning ordinance).

* See, e.g., United States v. 15.65 Acres of Land in Marin County, 689 F.2d

1329, 1333 n.3 (9th Cir. 1982); Government of Virgin Islands v. 2.7420

Acres of Land, 411 F.2d 785, 786 (3d Cir. 1969) (evidence of value for use

prohibited by existing zoning admissible where change in zoning restrictions

was reasonably probable in the reasonably near future); Wolff v.

Commonwealth of Puerto Rico, 341 F.2d 945, 946 (1st Cir. 1965) (highest

and best possible use of property is not confined to the use or zoning at the

time of taking if zoning may be amended to permit other uses).

When “there is a possibility or probability that the zoning

restriction may in the near future be repealed or amended

SO as to permit the use in question, such likelihood may be

considered if the prospect of such repeal or amendment is

sufficiently likely as to have an appreciable influence

upon present market value.”

(continued...)

challenge raising the probability of change, she did base her

higher valuation of her condemned land on the allegation that the

land use restrictions as applied to her property would in all

likelihood be ruled unconstitutional. App. A-15. Under the

court’s doctrine, neither of these types of postregulation

challenges—those based on likelihood of change or on the

likelihood of successful challenge—could be brought by property

owners acquiring their land after the adoption of land use

restrictions.

Furthermore, the doctrine will prevent property owners

from being able to challenge preexisting regulations which have

the effect of depressing the value of condemned land. The

doctrine leaves a government unconstrained to redefine property

interests without regard for constitutional limits,’ and threatens

to render a nullity the Takings Clause of the Fifth Amendment to

the United States Constitution.

It is imperative that this Court grant certiorari to reconcile

the conflicts created by this New York decision and restore

fundamental rights eliminated by the New York doctrine.

* (...continued)

NICHOLS ON EMINENT DoMAI, 3d ed., Vol. 4, § 12.322, quoted in Wolff,

341 F.2d at 946-47. See also ZONING AS A FACTOR IN DETERMINATION OF

DAMAGES IN EMINENT DOMAIN, 9 ALR 3d 291, 309.

* In United States v. Virginia Electric & Power Co., 365 U.S. 624 (1961),

this Court noted that “it would be manifestly unjust to permit a public

authority to depreciate property values ... and then to take advantage of this

depression in the price which it must pay for the property when eventually

condemned. Jd. at 636. Citations omitted.

” See Lucas, 505 U.S. at 1014 (quoting Pennsylvania Coal Co. v. Mahon,

260 U.S. 393, 414-15 (1922) (warning that such powers to redefine property

must be constrained by constitutional limitations. Otherwise, the tendency

would be to increasingly qualify uses of private property until none

remained)).

THE DOCTRINE OF THE NEW YORK

COURT OF APPEALS UNDERMINES

THE CONSTITUTIONAL OBLIGATION

THAT JUST COMPENSATION-THE FAIR-

MARKET VALUE-BE PAID WHEN

PRIVATE PROPERTY IS CONDEMNED

“Eminent domain” is the fundamental power of the

sovereign to take private property for a public use without the

owner’s consent.’ The power of eminent domain is an inherent

attribute of sovereignty not derived from the Constitution.’

However, when this power is exercised, the government is

obligated under the Fifth Amendment to the Constitution of the

United States'® to pay just compensation to the owner of the

property taken."

When private property is taken for public use, this Court

has long held that just compensation must be paid.'? The amount

of compensation is based on the value of the property taken, not

* | NICHOLS ON EMINENT DOMAIN § 1.11 (rev. 3d ed. 1996).

® See, e.g., Kohl v. United States, 91 U.S. 367, 371 (i875) (right of eminent

domain exists in the United States government); City of Cincinnati v.

Louisville & Nashville Railroad Co., 223 U.S. 390, 400 (1912) (“[T]he right

of every state to authorize the appropriation of every description of property

for a public use is one of those inherent powers which belong to state

governments, without which they could not well perform their great

functions.”),; Daniels v. State Road Department, 170 So. 2d 846 (Fla. 1964)

(power of eminent domain not derived from constitution).

'° The Fifth Amendment provides in part that “private property [shall not] be

taken for public use without just compensation.”

"' Kirby Forest Industries, Inc. v. United States, 467 U.S..1,9 (1984). The

Takings Clause of the Fifth Amendment is applicable to state and local

government via the Fourteenth Amendment. Chicago, Burlington, & Quincy

Railroad Co. v. City of Chicago, 166 U.S. 226, 235-37 (1897).

"2 Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 315 (1795).

any “out of pocket” investment lost by the owner.’ No matter

what Mrs. Basile paid for her land, even if she had acquired it for

no consideration, the Fifth Amendment’s requirement of “just

compensation” would require that she be paid its fair-market

value.

However, this Court has deviated from this rule, for

instance,

when market value has been too difficult to find,

or when its application would result in manifest

injustice to owner or public.’®

Injustice is found where the police power has been used

to systematically reduce the value of land in anticipation of its

condemnation." In this case, it would be manifestly unjust to

permit the Town of Southampton to depreciate Mrs. Basile’s

land by limiting its uses to recreational or aesthetic purposes and

then take advantage of this depreciation when her land is

condemned.’” This is precisely what was done when the New

York Court of Appeals refused to permit Mrs. Basile to challenge

the valuation of her land based on the application of restrictions

which deprived her of all but recreational or aesthetic uses of her

land.

The land use restrictions applied to Mrs. Basile’s

property precluded all but aesthetic-nondevelopment-uses of her

'? United States v. 50 Acres of Land, 469 U.S. 24, 25-26 (1984) (quoting

United States v. Miller, 317 U.S. 369, 374 (1943) (“what a willing buyer

would pay in cash to a willing seller”)).

'* In most cases, just compensation means the fair market value of the

property—what a willing buyer would pay in cash to a willing seller—on the

day it is appropriated. United States v. 564.54 Acres of Land, 441 U.S. 506,

511-13 (1979).

'S United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950);

Kirby Forest Industries, 467 U.S. at 10 n.14.

6 See, e.g., Riggs v. Township of Long Beach, 538 A.2d 808 (N.J. 1988).

'” See Virginia Electric & Power Co., 365 U.S. at 636.

land. In Lucas, this Court explicitly held that regulations that

deny all beneficial use of land are categorical violations of the

Takings Clause.'* With very limited exceptions, the government

may not avoid the obligation to pay just compensation when land

use regulations render private property useless. '*

Under the doctrine crafted by the New York court,

Mrs. Basile is not entitled to just compensation based on a valua-

tion that ignores the confiscatory land use restrictions—simply

because she acquired the property after the restrictions were

adopted. The application of this rule to Mrs. Basile precluded

her from introducing evidence of the value of her land that

existed prior to adopticii of the confiscatory regulations that she

alleged were unconstitutional under this Court’s Lucas opinion.

The result in this case is manifestly unjust; the result

of the application of the subject land use restrictions is to render

land useless. Under this Court’s decision in Lucas, regulations

that preclude all but aesthetic uses of land constitute categorical

takings of private property. However, the New York court

precludes landowners from challenging as takings land use

restrictions enacted before they acquire their property, even when

the restrictions preclude all economically viable uses” of, or

allow the government to occupy, private property.”

By precluding landowners from bringing takings

challenges to land use restrictions in effect when the property is

acquired, the New York court has allowed the government, in

anticipation of acquiring property, to enact restrictions or deny

* Lucas, 505 U.S. at 1015.

9 Id.

® See, e.g., Anello v. Village of Dobbs Ferry, supra, in which the New York

court precluded a challenge to land use restrictions that precluded all use of

private land.

" See, e.g., Kim v. City of New York, supra, in which the New York court

uses of land merely for the purpose of decreasing land values and

concomitantly lowering acquisition costs in eminent domain

proceedings.

Beyond Anello and Gazza, where property owners were

denied the ability to use their land, the court expanded the

doctrine in this case to deny just compensation when land is

condemned. The court discarded universally accepted principles

of condemnation law that when the government takes land, it

must pay the same as any willing buyer so that the property

owner is made whole.”

Justice Holmes observed that

[t]he protection of private property in the Fifth

Amendment presupposes that it is wanted for

public use, but provides that it shall not be taken

for such use without [just] compensation.”

The New York court’s newly crafted doctrine precludes

property owners from challenging land use restrictions adopted

before they acquire their land. Under this new doctrine, the

government can render Mrs. Basile’s property utterly useless

through regulation, depress its value to insignificance, and then

take the property through condemnation for a pittance of its

nonregulated value. This new, unprecedented doctrine makes a

mockery of the Just Compensation Clause and must be reviewed

by this Court.

” In Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S.

470, 473-74 (1973), this Court held that “‘just compensation’ means the full

monetary equivalent of the property taken. The owner is to be put in the

same position monetarily as he would have occupied if his property had not

been taken.”

® Pennsylvania Coal Co. v. Mahon, 260 U.S. at 415.

THE NEW YORK COURT OF APPEALS

ALTERS FUNDAMENTAL PROPERTY

RIGHTS IN A MANNER INCONSISTENT

WITH THE UNITED STATES CONSTITUTION

AND THE DECISIONS OF THIS COURT

In Gazza v. New York State Department of Environmental

Conservation, decided the same day as Basile, the New York

Court of Appeals held that all existing land use regulations

formed part of Mr. Gazza’s title to his land, limiting the interests

upon which he could base any claim. As a result, the court left

him without a remedy when he was precluded from building a

home on his residentially zoned lot. Similarly, in Anello v.

Village of Dobbs Ferry, the court’s holding rendered

Mrs. Anello’s residential lot useless; in Kim v. City of New York,

the court’s holding left Mrs. Kim powerless to prevent the city

from permanently occupying her land.

While the physical invasion in Kim represents the most

obvious manifestation of the error in the New York court’s

doctrine, this case represents a logical (but illegitimate) extension

of the court’s doctrine as applied in the regulatory takings

analyses found in Gazza and Anello. Once regulations have

rendered property all but valueless, is there any reason why a

condemnor should pay the preregulation fair-market value of the

land? In Mrs. Basile’s case, the New York courts issued a

resounding “no.” The issues in this case are in many ways

similar to those in Gazza and Anello. However, in this case, the

courts allowed the definition of property to be altered to preclude

all uses of Mrs. Basile’s land and then allowed the government

to take it in what amounts to a fire sale.

In its amicus brief in support of Mr. Gazza, Pacific Legal

Foundation argued, among other things, that the government

should not be permitted to redefine the range of interests that

constitute property, thereby precluding many landowners from

challenging restrictions that deprive them of their property in

derogation of the Fifth Amendment’s Takings Clause. In the

following portion of this brief, amicus reiterates and amplifies

those legal arguments as they apply to this different factual

situation.

A. Property Consists of Consticutionally

Protected Relationships

This Court has never explicitly defined property, instead

defining “the range of intevests [qualifying] for protection as

‘property”” based on “existing rules or understandings” stem-

ming from sources independent of the Constitution.” Property

is understood to mean.

the grous of rights inhering in the citizen’s rela-

tion 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.”

The essential character of property is that it is made up of

mutually reinforcing understandings that are sufficiently well-

grounded to support a claim of entitlement.” These claims for

which the owners were entitled to protection have attached to a

* Lucas v. South Carolina Coastal Council, 505 U.S. at 1030 (quoting

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)).

25 PruneYard Shopping Center v. Robins, 447 U.S. 74, 82 n.6 (1980),

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).

* Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979) (property consists

of recognized expectancies), Perry v. Sindermann, 408 U.S. 593, 601

(1972) (property involves mutually explicit understandings). See also

Nixon v. United States, 978 F.2d 1269, 1275-76 (D.C. Cir. 1992).

wide variety of things” and varying degrees of possessory

interests.”

A cornerstone of any meaningful regime of private

property is the recognition that the right to use property is an

inherent attribute of ownership.” If this recognition is denied,

then the ability to use property is no more than a government

privilege or entitlement. Property ownership without the right of

use would be an empty formalism, incapable of performing its

_ crucial social function of providing a bulwark of personal

autonomy against the encroachments of an aggressive, over-

reaching state.”

” Board of Regents of State Colleges v. Roth, 408 U.S. at 571-72) (property

interests extend well beyond actual ownership of real estate, chattels, or

money). See also Florida Rock Industries v. United States, 18 F.3d 1560

(Fed. Cir. 1994).

Property interests are about as diverse as the human mind

can conceive. Property interests may be real and

personal, tangible and intangible, possessory and

nonpossessory.

Id. at 1572.

8 See, e.g., United States v. Virginia Electric & Power, 365 U.S. at 638

(Douglas, J., concurring) (Owners of an easement and subservient fee have

parts of the bundle of rights or possessory interests that represent

within the meaning of the Fifth Amendment.); Preseault v. United States,

100 F.3d 1525 (Fed. Cir. 1996) (owners of reversionary interest in easement

entitled to just compensation when government took interest). See also

1 EDWARD COKE, INSTITUTES ch. 1, § 1 (1st Amer. ed. 1812). “For what is

the land but the profits thereof[?]”

2° See Nollan, 483 U.S. at 833 n.2 (“[T]he right to build on one’s property

... Cannot remotely be described as a ‘governmental benefit.””). See, e.g.,

Robert Nozick, Anarchy, State, and Utopia 171 (1974){“[t}he central core

of the notion of a property right in X ... is the right to determine what shall

be done with X”); United States v. Causby, 328 U.S. 256, 261 (1946).

>° See Friedrich A. Hayek, The Road to Serfdom, 103-04 (1944) (system of

private property rights assures “that nobody has complete power over us,

that we as individuals can decide what to do with ourselves”).

[T]he only dependable foundation of personal

liberty is the personal economic security of

private property ... That is why the Englishman’s

belief that his home is his castle and that the king

cannot enter it ... [is] the very essence of the free

man’s way of life.*"

When the New York court held that all existing land use

regulations formed part of Mrs. Basile’s title to her land and

thereby limited the evidence she could present in support of her

valuation of her land when it was condemned, the court redefined

property. This redefinition frustrates mutually reinforcing

understandings that are property’s essential character. It places

the value of her land in the hands of those who wish to take it

from her and undermines the very essence of the Fifth Amend-

ment’s guarantee of just compensation.

B. Property Is Not Defined Each Time Property

Is Transferred But Rather When the

Fundamental Relationships Are First Established

“Individual freedom finds tangible expression in property

rights.”** However the power of the state to alter the definition

of property must have certain constitutional limits if property

rights are to have any sense.

In Lucas, this Court observed that the Fifth Amendment’s

just compensation requirement is triggered when “the logically

antecedent inquiry into the nature of the owner’s estate shows

that the proscribed use interests were not part of [the] title to

begin with.”

*! Walter Lippmann, The Method of Freedom 100-02 (1934), quoted in

Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1175 n8&

(Fed. Cir. 1994).

*2 United States v. James Daniel Good Real Property, 510 U.S. 43, 61

(1993).

*® Lucas, 505 U.S. at 1027.

Property is defined when the relationships between

specific people and the things they own are first recognized by

law. However, the New York court’s doctrine ignores the

importance of this instant in a title’s history. Instead, the court

redefines each successive owners’ title by all laws in effect on

the date the title was transferred. This practice renders any

“antecedent inquiry” under Lucas meaningless since, according

to the lower court, antecedent is no further back in time than the

moment the property was last acquired. This doctrine reaches an

illogical result, inconsistent with long-standing principles of

property law, as well as the holdings of this Court and the Court

of Appeals for the Federal Circuit.*

When property is transferred without any interests being

retained by the prior owner, the new owner is said to “stand in

the shoes” of the predecessor in interest.» It is fundamental that

as the cycle of property transfer is repeated, the property remains

unaltered as the owners are substituted, one for another.

However, reliance on fundamental principles seems mis-

placed if every land use restriction alters the title at the instant

land is transferred from one owner to another. Under the New

York court’s doctrine, the state takes from the new owner part of

the “bundle” of rights whenever property changes hands. Asa

result, the state would never have to pay just compensation for

the portions of property taken before land was transferred. Over

time, either transfer of ownership will cease or the state will

acquire all of the interests it desires in property by operation of

law. With the same passage of time, owners will lose any basis

for bringing takings claims under the Fifth Amendment as their

titles lose meaning with every transfer.

** See Pennsylvania Coal and Lucas, discussed ante; and Preseault,

discussed infra.

*> Graff v. Smith’s Admors, 1 U.S. 481, 485 (1789). See also Moroney,

633 A.2d at 1048 (property owners, just like their predecessors in title, can

challenge local zoning ordinance).

The New York court’s doctrine permits government to

engage in regulatory incrementalism, eventually depriving

owners of ali interests in their private property without paying

just compensation. Under the lower court’s logic, the govern-

ment could annually increase set-back requirements by

six inches, each year reducing the amount of land on which an

owner could build a home until eventually nothing was left.

Only the increases since the property was last transferred would

be relevant to a takings analysis. But the proper analysis would

involve a comparison of the total cumulative regulatory impact

on property to the original title, regardless of when and how

often the land may have been transferred.

In Lucas, this Court noted that the government could

prohibit uses of land without implicating the constitutional

requirement to pay just compensation” only if “the use of these

properties for what are now expressly prohibited purposes was

always unlawful.”” The land use restrictions that would meet

Lucas’ test of constitutionality would not create new limitations

on existing titles but, instead, merely recognize historically

prohibited uses.* The restrictions would do no more than state

that which the owners were never free to do with their land.

What Lucas implied, the Court of Appeals for the Federal

Circuit has expressly stated. In Preseault v. United States, the

* Lucas, 505 U.S. at 1029.

On this analysis, the owner of a lake-bed, for example,

would not be entitled to compensation when he is denied

the requisite permit to engage in a landfilling operation

that would have the effect of flooding others’ land. Nor

the corporate owner of a nuclear generating plant, when

it is directed to remove all improvements from its land

upon discovery that the plant sits astride an earthquake

fault.

Id.

*” Id. at 1030 (emphasis added).

* Id.

Federal Court held that property owners could challenge the

conversion of easements dedicated for railroad rights of way to

bicycle and hiking trails, even though the law under which the

easements were converted was enacted before the property

owners acquired their property.”

Under reasoning strikingly similar to that of the lower

court in this case, the United States argued that the Preseaults’

property interests in the tract were not defined when the railroad

acquired its rights-of-way in 1899, but by the evolving enactment

and implementation of law between 1899 and the dates the

Preseaults acquired the land.”

The Federal Circuit Court of Appeals categorically

rejected the thesis that general legislation enacted after the

creation of the property interests “somehow redefined

state-created property rights and destroyed them without

entitlement to compensation.’ Rather, the rights were defined

by the original conveyances and remained unchanged notwith-

standing subsequent regulatory enactments.“ Specifically, the

federal court stated that

[t]he question of what estates in property were

created by these turn-of-the-century transfers to

the Railroad requires a close examination of the

conveying instruments, read in light of the

common law and statutes of Vermont then in

effect.©

Property owners in New York have always enjoyed the

right to buy and sell land. Before the lower court crafted its

doctrine, new owners acquired all of the bundle of rights

* Preseault, 100 F.3d at 1530-31.

® Id. at 1537.

“' Id. at 1530.

@ Id. at 1537.

previously enjoyed by the old owners.“ When Mrs. Basile

purchased her land, she should have acquired the very same

protectable interests enjoyed by her predecessors in interest~but

the court below declared that she did not.

The New York court’s doctrine upsets this historically

rooted understanding of property rights. The doctrine precludes

Mrs. Basile from receiving just compensation when her property

is condemned because the doctrine bars consideration of

potential challenges to regulations that preclude all use of her

land but were adopted before she acquired her lot. Furthermore,

the doctrine permits the state to devalue property by eliminating

all productive uses and then condemning the land and paying

only a small fraction of the land’s true value.“ Such a doctrine

should be reviewed by this Court.

“* In Douglaston Manor, Inc. v. Bahrakis, 678 N.E.2d 201 (N.Y. 1997),

decided shortly before this case, the New York Court of Appeals observed

that

the desirable definiteness attendant upon discrete property

rights and principles, along with reliable, predictable

expectations built upon centuries of precedent, ought not

be sacrificed to the vicissitudes of unsupportable legal

theories.

Id. at 205.

‘5 As demonstrated by the facts of this case, the New York court’s theory is

that any land use that is subject to discretionary government approval is

deleted from the title when it passes from one owner to another, only uses

of right may pass with the title. Under this theory, a legislature could pass

laws eliminating all uses of land of right. If land were thereafter transferred

and then condemned, it would have little if any value because the owner’s

title would include no rights of use. Consistent with the New York court’s

theory, the comprehensive land use regulations existing in many

jurisdictions which are tantamount to the elimination of all uses of right

would abrogate any obligation under the Fifth Amendment to pay just

compensation when private property is condemned.

C. The Government Cannot Deprive Owners

of Expectancies Based on Established

Property Relationships Without

Triggering Fifth Amendment Liability

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

Court stated that the government does not have unlimited power

to redefine the sphere of interests defining private property, the

power “by ipse dixit [to] transform private property into public

property without compensation." No state has the right to

destroy expectations based on long-established relationships

between people and things, “defeat[ing] 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.”*”

One of the reasons for this rule is to prevent the

government, under the rationale of adjusting the benefits and

burdens of economic life, from “forcing some people alone to

bear public burdens which, in all fairness and justice, should be

borne by the public as a whole.””

In this case, however, the New York Court of Appeals

ignored this fundamental principle of United States Supreme

Court property law and told Mrs. Basile that she never possessed

the right to use her property except for recreational or aesthetic

purposes. The court decreed that Mrs. Basile was entitled neither

to use her land for purposes consistent with its residential zoning

nor to just compensation for the forced dedication of her lot for

a public purpose—essentially undevelopable open space.

“ Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980).