Amicus Curiae Brief — Gazza v. New York Department of Environmental Conservation

; Supreme Court, U.S,

4 FILED

JUN 11 1997

a SEICE OF THE GLERI

No. 96-1881

In the

Supreme Court of the United States

) October Term, 1996

,%

—_

IN THE MATTER OF JOSEPH F. GAZZA,

Petitioner,

Vv.

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Respondent.

Petition for Writ of Certiorari

to the Court of Appeals

for the State of New York

—_*

4

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

—*

-

JAMES S. BURLING

STEPHEN E. ABRAHAM *R. S. RADFORD

Of Counsel *Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive, Suite 305 2151 River Plaza Drive, Suite 305

Sacramento, California 95833 Sacramento, California 95833

Telephone: (916) 641-8888 Telephone: (916) 641-8888

Facsimile: (916) 920-3444 Facsimile: (916) 920-3444

Attorneys for Amicus Curiae

Pacific Legal Foundation

mall

i

QUESTION PRESENTED FOR REVIEW

May the government avoid liability under the Takings

Clause for a taking of private property because the regulations

prohibiting all reasonable economically beneficial use of the

property were adopted before the property was acquired by the

agerieved owner?

il

TABLE OF CONTENTS

Page |

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

TABLE GF AUTHORITIES CITED ................. iil

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

SEAREreE Che RWMES SPRUE ow ww ek cece cca twee 2

REASONS FOR GRANTING THE WRIT ............ 3 |

DOI, sid se ky ute eh eel peter ees s 3 |

I. PROPERTY CONSISTS OF FUNDAMENTAL |

ELATIONSHIPS WHICH ARE PROTECTED

UNDER THE CONSTITUTION’S FIFTH |

FEI eo Pe Pee ras ok Ca ks hws 6

II. PROPERTY IS DEFINED WHEN

FUNDAMENTAL RELATIONSHIPS ARE

ESTABLISHED AND NOT EACH TIME

PROPERTY IS TRANSFERRED .............. 10

Ill. THE ESTABLISHING OF PROPERTY

RELATIONSHIPS CREATES EXPECTANCIES

WHICH THE GOVERNMENT CANNOT

EXTINGUISH WITHOUT TRIGGERING FIFTH

AMENDMENT LIABILITY .-................ 15

re es 17 |

iil

Page

TABLE OF AUTHORITIES

Cases

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

Anello v. Zoning Board of Appeals of Village

of Dobbs Ferry, 89 N.Y.2d 535, 1997 WL 68232

(NY Feb. 18, 1997); appeal docketed,

Pao. So-teeu Geeey ae, BPP) ww... 2... ......... 1,4

Armstrong v. United States, 364 U.S. 40 (1960) ..... 15-16

Babbitt v. Youpee, U.S.__,117S.Ct.29(1997)..... 2

Basile v. Town Southampton, appeal docketed,

ee i EG SS +

Board of Regents of State Colleges v. Roth,

CR se ee 6

Brotherton v. Department of Environmental

Conservation of the State of New York,

No. 12809-90 (NY Feb. 24, 1997) ...........0...... 4

Chicago, Burlington, & Quincy Railroad Co. v.

City of Chicago, 166 U.S. 226 (1897) .............. 3

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

ee I a ae 2,7

First English Evangelical Lutheran Church of

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

Se ree aS Se ob etl eee db ec esses 2,8

Florida Rock Industries v. United States, 18 F. 3d

RO A i a be 7

Hall v. Ford, 856 F.2d 255 (D.C. Cir. 1988) ........... 7

Hodel v. Irving, 481 U.S. 704 (1987) ............... 2,8

1V

Hughes v. Washington, 389 U.S. 290 (1967) .......... 15

K Mart Corp. v. Cartier, Inc., 485 U.S. 176 (1988) ..... 7

K&K Construction, Inc. v. Department of

Natural Resources, 551 N.W.2d 413 (1996),

leave to appeal granted, No. 106712 (Mich.

ae: Co Oe 6b oc CS ree kick 5

Kaiser Aetna v. United States, 444 U.S. 164(1979) .. 4,6-8

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ............... 1-2

Kim v. City of New York, appeal docketed,

No. SG-17O Cie 40 Bae) eases ie ce ks 1,4

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

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

(1992), cert. granted and judgment vacated,

__US. _, 113 S. Ct. 1574 (1993), on remand,

GRP BE ee Sree SOE on ee hoe ued ees hs acees 5

Loretto v. Teleprompter Manhattan CATV Corp.,

Pe OE EEE bk i ed cama se 6,8,15-16

Loveladies Harbor, Inc. v. United States,

y Pe Eee! eS OR | lee ae 9

Lucas v. South Carolina Coastal Council,

SD 55 eS EE he ee 2,5-6,8,10,12-13

Moroney v. Mayor and Council of the Borough of

Old Tappan, 633 A.2d 1045 (1993), cert. denied,

ee a Le ne ee 5,10

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

eee: SI SG os en ees wee aaa ea aee 6

Page

Nollan v. California Coastal Commission,

Ee Si NORE ore ie oa Ree. b ckk ee 1,8

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

CPs cas eu Habe twa ek ces bas c: 5

Perry v. Sindermann, 408 U.S. 593 (1972) ............ 6

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

OR CRa, ies i ek Biches 7,13-14

PruneYard Shopping Center v. Robins,

ak oe a a aie as o-oo o vce 6,8,15

Pumpelly v. Green Bay Co., 13 Wall.

Ee cate ce 8

Stevens v. City of Cannon Beach,

eee ML POE MU eed iis asad wo cwex wee

Suitum v. Tahoe Regional Planning Agency,

__U.S.L.W. __ (May 27, 1997), vacating and

remanding, 80 F.3d 359 (9th Cir. 1996) ........... 1,11

United States v. Causby, 328 U.S. 256 (1946) .......... 8

United States v. James Daniel Good Real Property,

SR MA A NE 6 88S nica dak cecseascess. 10

United States v. General Motors Corp., 323 U.S.

We ee te ry 6

United States v. Riverside Bayview Homes, Inc.,

gs fe 2.) AAA erties eek iat eae eae 1]

United States v. Virginia Electric & Power Co.,

UNI Ns ees k eo ee ke wa oa 7

Vatalaro v. Department of Environmental

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

1992), review denied, 613 So. 2d 3 (Fla. 1992) ....... 5

vi

Page

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

TE A Flin ike s Haw ees Ova SOREN 15-16

Williamson County Regional Planning

Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985) ............. 11,16

Rules

Domes Gert TN 18 a I re OE ]

United States Constitution

SEE ASSOC re re ror 3,5,7-10,15-16

SE ern ee eee 3

Miscellaneous

Thomas Bergin & Paul Hasskeil, Preface to

Estates in Land and Future Interests

SN ac 3 es Pee aT A aes Sle Ae Nees 6 FF TS» Herm 12

Edward Coke, Institutes (1st Amer. ed.

dea e a Oi le eae cia |S eb eer tee 7

Friedrich A. Hayek, The Road to

I haere s Fabre ES a viegw ag iwe «paren Gis 9

James Kent, Commentaries on American

I Gh a Rae bee ke ees x te a dereriee apr 5

Walter Lippmann, The Method of

IN 80g 950 bis s o's a cielo cies. «seine 9

Robert Nozick, Anarchy, State, and

III. oa: Ke'v:gikca's Wate ko ataierbinne > Sane orev Ges 8

]

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 20,000 supporters nationwide. Policy for PLF is

set by a Board of Trustees composed of concerned 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 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 also participated as amicus

curiae in Agins v. City of Tiburon,’ Keystone Bituminous Coal

' 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 made a monetary

contribution specifically for the preparation or submission of this brief.

? 483 U.S. 825 (1987).

> _ U.S.L.W. __ (May 27, 1997), vacating and remanding, 80 F. 3d 359

(9th Cir. 1996).

* Appeal docketed, No. 96-1880 (May 28, 1997).

* Appeal docketed, No. 96-1794 (May 19, 1997).

6 447 U.S. 255 (1980).

2

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."”

Consent to the filing of this brief has been granted by

counsel for petitioner and respondent and has been lodged with

the Clerk of this Court.

STATEMENT OF THE CASE

In 1989, Joseph Gazza purchased a 43,000 square foot

parcel in a neighborhood zoned exclusively for single-family

residences. Appendix to Petition for Writ of Certiorar

(Appendix) at 26a. He wished to build a home similar to those

in the neighborhood. His lot was inventoried as containing

tidal wetlands by the New York State Department of Environ-

mental Conservation. Jd. Mr. Gazza intended to build his

home on the upland, dry portion of his land. Petition at 6. His

house could be so constructed under local regulations.

However, Mr. Gazza could not build his home unless he

received a variance from the state’s requirements establishing

setbacks between the tidal wetland boundary and the dwelling

and septic system. Petition at 7.

Mr. Gazza submitted an application to the state to

construct his home. Appendix at 26a. The state denied his

7 480 U.S. 470 (1987).

* 481 U.S. 704 (1987).

° 482 U.S. 304 (1987).

© 505 U.S. 1003 (1992).

"512U.S.__,114S. Ct. 2309 (1994).

2 US. _,117S. Ct. 29(1997).

3

application, instead enforcing the setback requirements that

precluded Mr. Gazza from using his land for its zoned purpose.

Appendix at 27a. The state indicated that it would permit only

a dock, catwalk, and small parking lot on his land. Appendix

at 28a. However, the state’s suggestion was entirely inconsis-

tent with uses of other lots in this exclusively residential

neighborhood and prohibited Mr. Gazza from making any

reasonable economically beneficial use of his land. Petition

at 7, 9.

Mr. Gazza claimed that the denial of his application

constituted a taking of his property.’ Appendix at 45a. Each

of the New York courts before which Mr. Gazza’s claim was

heard denied him any relief. The trial court observed that

because he knew at the time he purchased his property that

there were limitations on its use, he did not own an interest in

the property which could be “taken” by the denial of the

setback variances. Appendix at 49a-50a. The appellate court

affirmed on the same grounds, noting that “central to this

appeal is the fact that at the time he purchased the property, the

petitioner knew of the ... regulations that ‘burdened’ it.”

Appendix at 37a. Ultimately, 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. Appendix at 1 la, 14a.

-

Vv

REASONS FOR GRANTING THE WRIT

SUMMARY

The New York Court of Appeals ruled that Mr. Gazza

has no right to claim a deprivation of all reasonable economic

'> The Fifth Amendment’s Takings Clause 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).

4

use of his property for which he is entitled to any remedy

because he never owned the right to develop his land having

acquired it after land use regulations were enacted. The New

York court has thereby determined that one of the most

essential of all property rights-the nght to use it-may be

transferred to the state without compensation by legislative

enactment. .

On the same day the Court of Appeals decided

Mr. Gazza’s case, New York’s highest tribunal also decided

three other cases on identical grounds.'* Together these

decisions establish what amounts to a judicial doctrine that

property rights can be transferred to the state without

compensation by legislative fiat.’*

The New York court’s doctrine is antithetical to deeply

rooted understandings of the relationships that define

'* Anello v. Zoning Board of Appeals of Village of Dobbs Ferry, supra,

Basile v. Town of Southampton, 89 N.Y.2d 974, 655 N.Y.S.2d 877,

678 N_E.2d 489 (1997), appeal docketed, No. 96-1852 (May 27, 1997), and

Kim v. City of New York, supra. A single per se rule articulated by the New

York court 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 a physical occupation without receiving just compen-

sation.

'S 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

(Feb. 24, 1997), a Suffolk County court held that an owner who was

precluded from making any economically viable use of his land had no

property interest subject to protection under the Takings Clause 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 for this decision was the Court of Appeals’ doctrine which is the

subject of the present petition.

5

property.° The New York court’s treatment of these

understandings is contrary to those of at least four other states’

courts—Florida, Massachusetts, New Jersey, and Michigan—

which have demonstrated a respect for the principles upon

which our takings jurisprudence has been based.’’ The doctrine

undermines acknowledged fundamental principles of property

law.'* The doctrine leaves a government unconstrained to

redefine property interests without regard for constitutional

limits.'? The doctrine renders the Takings Clause of the Fifth

Amendment to the United States Constitution a nullity.

'6 See Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979) (property

consists of recognized expectancies).

'’ 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, 595 N.E.2d 812

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

judgment vacated, _ U.S. _, 113 S. Ct. 1574 (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 (Mich. 1996), leave to appeal granted,

No. 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 (N.J. 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 2 James Kent, Commentaries on American Law *339 (1826)

(Compensation when property is taken “is founded in natural equity, and is

laid down by jurists as an acknowledged principle of universal law”).

'? See Lucas, 505 U.S. at 1003, 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. )

6

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.

I

PROPERTY CONSISTS OF

FUNDAMENTAL RELATIONSHIPS

WHICH ARE PROTECTED UNDER THE

CONSTITUTION’S FIFTH AMENDMENT

This Court has never delineated the precise contours of

the term property, relying instead on “existing rules or

understandings” stemming from sources independent of the

Constitution “to define the range of interests that qualify for

protection as ‘property.’””°

As used in the Taking Clause, property includes the

entire “group of rights inhering in the citizen's [ownership].””"

The term denotes “the right to possess, use and dispose of

[property]. ... 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

2” Tucas 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)).

21 PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 n.6 (1980),

(quoting United States v. General Motors Corp., 323 U.S. 373 (1945)).

2 PruneYard, 447 U.S. at 83 n.6 (quoting United States v. General Moiors

Corp., 323 U.S. at 377-78; Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 435 (1982).

2 Perry v. Sindermann, 408 U.S. 593, 601 (1972) (property involves

mutually explicit understandings), Nixon v. United States, 978 F.2d 1269,

1275-76 (DC Cir. 1992) (citing Kaiser Aetna v. United States, 444 U.S.

(continued...)

7

which the owners were entitled to protection have attached to

a wide variety of things and varying degrees of possessory

interests.”

This Court has identified some of the legal relation-

ships or rights qualifying for protection under the Fifth:

Amendment.” One of the most essential of these is the nght to

* (continued)

at 179 (property consists of recognized expectancies)); Hall v. Ford,

856 F.2d 255, 265 (D.C. Cir. 1988) (property is an expectation based on

rules or understandings).

24 See 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. ... There are specially structured property

interests (such as those of a mortgagee, lessee, bailee,

adverse possessor), and there are interests in special kinds

of things (such as water, and commercial contracts).

Id. at 1570.

See also K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 185-86 (1988)

(trademark law confers constitutionally protected private property interests).

25 See, e.g., United States v. Virginia Electric & Power Co., 365 U.S. 624,

638 (1961) (Douglas, J., concurring) (owners of an easement and subservient

fee have parts of the bundle of rights that represent “property” 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 (ist Amer. ed. 1812).

“For what is the land but the profits thereof[?]”

26 That there are more than one set of relationships or rights does not lead to

the implication that one is necessarily superior to another. The government

may not coerce a property owner to surrender one right for another.

Cf, Dolan, 114 S. Ct. at 2317 (government may not require a person to give

up constitutional right in exchange for a discretionary benefit).

8

exclude others.”” In Hodel v. Irving,”* this Court described the

right to pass on property to one’s heirs as one which “has been

part of the Anglo-American legal system since feudal times.”””

Another fundamental protected element of ownership is the

ability to make productive use of property.” Collectively, these

rights constitute property entitled to protection under the Fifth

Amendment.

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

7 PruneYard, 447 U.S. at 82 (citing Kaiser Aetna, 444 U.S. at 176). In

Loretto, this Court observed that “[w]hen faced with a constitutional

challenge to a permanent physical occupation of real property, this Court has

invariably found a taking.” Loretto at 427 (citing Pumpelly v. Green Bay

Co., 13 Wall. (80 U.S.) 166 (1872)).

* 481 U.S. 704.

*® Hodel, 481 U.S. at 716.

® Lucas, 505 U.S. at 1027-30 (deprivation of all economically beneficial use

of land per se taking). See also First English, 482 U.S. at 318 (Constitution

requires compensation when landowner denied all use of property, even

temporarily).

>! 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 also

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

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

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

9

autonomy against the encroachments of an aggressive,

overreaching state.*”

Enforcement of the Fifth Amendment’s Takings Clause

signals a commitment to private property as a bulwark for the

protection of individual rights.”

[T]he only dependable foundation of personal

liberty is the personal economic security of

private property ... There is no surer way to

give men the courage to be free than to insure

them a competence upon which they can rely.

Men cannot be made free by laws unless they

are in fact free because no man can buy and no

man can coerce them. 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 Mr. Gazza’s title to his land, limiting

the interests upon which he could base any claim, the court

redefined property, thereby undermining mutually reinforcing

understandings that are property's essential character. The

court turned its back on individual rights guaranteed by the

Constitution of the United States, undermining principles of

private property without which no one can truly be free.

*? 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”).

*® Loveladies Harbor, Inc. v. United States, 28 F. 3d 1171, 1175 (Fed. Cir.

1994).

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

Loveladies Harbor, 28 F. 3d at 1175 n.8.

10

i

PROPERTY IS DEFINED WHEN

FUNDAMENTAL RELATIONSHIPS

ARE ESTABLISHED AND NOT EACH

TIME PROPERTY IS TRANSFERRED

Recently, this Court observed that “[i]ndividual freedom

finds tangible expression in property rights.”°* However if

property rights are to have any meaning, the power of the state

to alter the definition of property must have certain

constitutional limits.

In Lucas, this Court observed that some land use

regulations would trigger the Fifth Amendment’s requirement

of just compensation unless “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.”*

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 focuses on every

transfer, defining and redefining each successive owner’s title

by the matrix of all then-existing laws. This interpretation of

Lucas’ “antecedent inquiry” 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.

It is axiomatic that when property is transferred without

any interests being retained by the prior owner, the new owner

stands in the shoes of the predecessor in interest.*” With each

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

(1993).

*® Lucas, 505 U.S. at 1027.

*” See Moroney, 633 A.2d at 1048 (property owners “stand in the shoes of

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

1]

such transfer, nothing in the bundle of protected property

interests is lost or gained. The composition of the legal

relationships remains unchanged as the owners of land are

substituted, the new owner for the prior owner.*®

** Were it otherwise, only the owner at the time a regulation is passed could

sue for a taking caused by a particular regulation. But such claims would

invariably not be ripe at the time a regulation is passed unless the owner

were to make an application. See, e.g., Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186

(1985) (plaintiff must demonstrate that final decision received regarding

application of challenged regulations to the property at issue from the

government entity charged with implementing the regulations).

Certainly the mere passage of a regulation affecting wetlands does

not constitute a taking. In United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985), this Court

made it quite clear that the mere assertion of regulatory

jurisdiction by a governmental body does not constitute a

regulatory taking. The reasons are obvious. A

requirement that a person obtain a permit before engaging

in a certain use of his or her property does not itself

“take” the property in any sense: after all, the very

existence of a permit system implies that permission may

be granted, leaving the landowner free to use the property

as desired. Moreover, even if the permit is denied, there

may be other viable uses available to the owner. Only

when a permit is denied and the effect of the denial is to

prevent “economically viable” use of the land in question

can it be said that a taking has occurred.

Riverside Bayview Homes, 474 U.S. at 126-27 (citations omitted).

Furthermore, any facial challenge would be problematic. This

Court recently observed that

a sound judgment about what use will be allowed simply

cannot be made by asking whether a_parcel’s

characteristics or a proposal’s details facially conforms to

the terms of the general use regulations.

Suitum, slip op. at 12. To the extent that the holding in this case insists that

an owner must file a premature takings claim lest the government acquire

part of the property upon its sale, such an insistence conflicts with the

(continued...)

12

By the doctrine crafted by the New York Court of

Appeals in this case, every land use restriction alters the title at

the instant land is transferred from one owner to another. The

court implies the state has the absolute right to sit on the

sidelines, exacting an interest in property for which it pays

nothing whenever private parties transfer their title to other

private parties. The court’s theory is hardly new, indeed its

doctrine does little more than encourage relationships which

were rejected in England more than 100 years before the ratifi-

cation of this nation’s Constitution.

In feudal England, all property was owned by the

crown. Land ownership was ferurial, the “owner” holding land

subject to the granting of continued possession by the king.

Individuals took title in land “of the king;” the king was the

ultimate owner of all land—all others held only inferior

possessory interests. This system of land ownership came to an

end in 1660.*°

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

>8 (_. continued)

rationale behind this Court’s well-established doctrine of mpeness in the

context of regulatory takings.

>> Thomas Bergin & Paul Hasskell, Preface to Estates in Land and Future

Interests, ch. 1, §§ 2-11 (1984).

” 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.

” ee A ee EB A a OE Ml eae Poe te i we

13

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 would 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 stated expressly. In Preseault v. United

States, the Federal Circuit held that property owners could

challenge a land conversion even though the law under which

the land was 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 notwithstanding

*' Id. at 1030 (emphasis added).

” Id.

“ Preseault, 100 F. 3d at 1530-31.

“* Td. at 1537.

“> Id. at 1530.

14

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.”

For hundreds of years, property owners in New York

bought and sold land, in each instance transferring to the new

owners all of the bundle of rights previously enjoyed by the old

owners. When Mr. Gazza purchased his land, he should have

acquired the very same protectable interests enjoyed by his

predecessors in interest but the court below declared that he did

not.

The New York court’s doctrine does more than upset

this historically rooted understanding of property rights. The

court’s doctrine precludes Mr. Gazza from challenging the

regulations as applied to his property. There is nothing to stop

the state from applying land use restrictions to private property,

peeling away rights each time the land is transferred until

nothing is left. Under the court’s holding, it is plausible that

eventually every landowner in New York will own no interest

which has not been or is not eventually taken by the state.

Under the court’s doctrine, successors in interest will

eventually be left with little more than tenancies on the state’s

land.

“° Id. at 1537.

” Id. at 1534

15

lil

THE ESTABLISHING OF PROPERTY

RELATIONSHIPS CREATES EXPECTANCIES

THAT THE GOVERNMENT CANNOT

EXTINGUISH WITHOUT TRIGGERING

FIFTH AMENDMENT LIABILITY

Property-like its companion terms in the Fifth

Amendment, /ife and liberty—does not derive its meaning solely

from provisions of positive law. Rather, it has a “normative

dimension as well, establishing a sphere of private autonomy

which government is bound to respect.”“* On numerous

occasions, this Court has stated that the government does not

have unlimited power “by ipse dixit [to] transform private

property into public property without compensation.””®

Even though as a general matter the Constitution leaves

the law of real property to the states,” a state may not 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

“* PruneYard, 447 U.S. at 93-94 (Marshall, J., concurring).

® Webb's Fabulous Pharmacies, inc. v. Beckwith, 449 U.S. 155, 164 (1980);

Loretto, 458 U.S. at 439.

*° Stevens v. City of Cannon Beach, 510 U.S. 1207, 114 S. Ct. 1332, 1334

(1994).

*' Hughes v. Washington, 389 U.S. 290, 296-297 (1967) (Stewart, J.,

concurring).

16

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

borne by the public as a whole.””

In Webb's Fabulous Pharmacies, this Court held that

expectations based on the “usual and general rule,” that

deposited fund interest belongs to the owners of the principal,

could not be frustrated, whether by statute or judicial decree,

merely by declaring that the moneys were public and not

private.»

Similar to the expectations based on established

relationships between people and the things they own are those

expectations based on the vitality of the Fifth Amend-

ment—“historically rooted expectation[s] of compensation”

when private property is taken for public use.™

To build a home on his property, Mr. Gazza required

nothing more than a variance from a set-back requirement, one

of the most common forms of land use applications routinely

considered by regulatory agencies. This court has considered

variances of significantly greater magnitude to be sufficiently

likely to be approved that such applications are required before

a final determination can be made on the allowed use of the

property.”

Nonetheless, the New York Court of Appeals told

Mr. Gazza that he never possessed the right to build a home on

his land because this use might have been prohibited under the

land use restrictions which were adopted before he acquired his

title. The court decreed that Mr. Gazza is entitled neither to use

32 Webb's Fabulous Pharmacies, 449 U.S. at 163 (quoting Armstrong v.

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

3 Webb's Fabulous Pharmacies, 449 U.S. at 162-64

4 Loretto, 458 U.S. at 441.

5 See, e.g., Williamson County, 473 U.S. at 187-88 (claim premature where

land owner had not set sought variances).

17

his land for its intended and zoned purpose nor to just

compensation for the loss of all beneficial use because the

regulations which authorized the denial of his application had

the practical effect of a dedication of his residential lot for a

public purpose-essentially undevelopable open space.

Under the New York court’s holding, the state is free to

impose new burdens on owners of private property, ignoring

expectations based on long existing understandings of the

relationships between people and things and expectations based

on the Fifth Amendment to the United States Constitution.

Under the court’s holding, the state is free by ipse dixit to

transform private property into public property without

compensation—exactly as it has done in this case.

—@—

CONCLUSION

The New York court’s doctrine deprives individuals of

fundamental constitutional rights by undermining the essential

character of property. The court repudiates its commitment to

protect individual rights guaranteed by the Constitution of the

United States. The court permits the state to convert private

property into public property without compensation. Only this

Court can resolve the conflicts created by the New York court

concerning important questions of federal constitutional law.

18

Only this Court can undo the damage done to important

constitutional rights. For the reasons stated above this petition

for writ of certiorari should be GRANTED.

DATED: June, 1997.

Respectfully submitted,

JAMES S. BURLING

STEPHEN E. ABRAHAM *R.S. RADFORD

Of Counsel *Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive; Suite 305 2151 River Plaza Drive, Suite 305

Sacramento, California 95833 Sacramento, California 95833

Telephone: (916) 641-8888 Telephone: (916) 641-8888

Facsimile: (916) 920-3444 Facsimile: (916) 920-3444

Attorneys for Amicus Curiae

Pacific Legal Foundation

7 eee