Amicus Curiae Brief — Santini v. Connecticut Hazardous Waste Management Service

No. 99-1592

IN THE

SUPREME COURT OF THE UNITED STATES

EVANDRO S. SANTINI, et al.,

Petitioners,

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF AND

BRIEF OF THE

NATIONAL ASSOCIATION OF HOME BUILDERS

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

CHRISTOPHER G. SENIOR

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 - 15th Street, N.W.

Washington, D.C. 20005

(202) 822-0200

Attorney for Amicus Curiae.

Washington, D.C. ¢ THIEL PRESS ¢ (202) 328-3286

Pret A a ead P=

MOTION TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PETITIONER

The National Association of Home _ Builders

(“NAHB”) has received the written consent of the

petitioner to submit this amicus curiae brief.' The letter

of consent has been filed with the Clerk of this Court.

Respondents have declined consent.

The NAHB respectfully moves this Court for leave

to file its amicus curiae brief in support of petitioner

because it wishes to bring to the Court’s attention a

disturbing trend exemplified by the petitioner's case —

the failure by state courts to follow this Court’s lead in

properly analyzing regulatory takings cases and a failure

by these courts to take into any consideration a

landowner’s distinct investment backed expectations

before reaching a decision on a takings claim. In fact,

this case represents what can be categorized as the

extreme end of this trend, with a court effectively

writing out of existence the entire concept of a

regulatory taking.

The NAHB represents over 200,000 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

' Pursuant to Rule 37.6 of this Court, amicus states that its counsel

authored this brief and amicus paid for it. This brief was not

written in whole or part by counsel for a party, and no one other

than amicus made a monetary contribution to its preparation.

ii

builders, as well as land developers and remodelers. It

is the voice of the American shelter industry.

The NAHB has appeared before this Court as an

amicus curiae or as “of counsel on behalf of the

property owner in prior takings cases involving land use

regulation. These include Agins v. City of Tiburon, 447

U.S. 255 (1980): San Diego Gas and 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): First English Evangelical

Lutheran Church of Glendale v. Los Angeles County,

482 U.S. 304 (1987): Nollan v. California Coastal

Commission, 483 U.S. 825 (1987):° Pennel v. City of

San Jose, 485 U.S. 1 (1988): Lucas v. South Carolina

Coastal Commission, 505 U.S. 1003 (1992): Dolan vy.

Citv of Tigard, 512 U.S. 374 (1994): Suitun v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997); and

(itv of Monterey v. Del Monte Dunes at Montery, 526

U.S. 687 (1999). :

Christopher Senior

* Justice Brennan’s dissent cited approvingly the NAHB brief. 450

U.S. at 643 n.6.

‘The Court opinion cited approvingly the NAHB brief. 483 U.S. at

840.

ill

TABLE OF CONTENTS

MOTION TO FILE AMICUS BRIEF

SP EP PUR SSP PEPE EMPTIES ccscsivcscsecssencsicresnes

I. BY FOCUSING ON THE INTENT BEHIND

A GOVERNMENTAL ACTION RATHER

THAN TTS EFFECT ON PRIVATE PROPERTY

REGULATORY TAKINGS ANALYSIS WITH

A DEEPLY FLAWED “MENS REA’

REVIEW NOT APPROPRIATE TO

FIFTH AMENDMENT JURISPRUDENCE .....

Il. BY FAILING TO ANALYZE THE

ECONOMIC IMPACT OF THE

GOVERNMENTAL ACTION ON

PROPERTY INTERESTS, THE COURT

BELOW UTTERLY DISREGARDED THE

OWNER’S “DISTINCT INVESTMENT-

PREF CEE PPREMIINS soaccccnsasosccsncseansence

NN os cotta ca ice aieiecsnipaiibin =k cb ecicsabann aan

5

_

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TABLE OF AUTHORITIES

Cases

City of Monterey v. Del Monte Dunes at

Monterey, 526 U.S. 687, 720 (1999) ............ 4.5

Dolan v. Tigard 512 U.S. 374 (1994) oo... 6

First English Evangelical Lutheran Church v.

Los Angeles County, 482 U.S. 304 (1987) ... pa

Florida Rock Industries, Inc. v. United States,

ee WO GA CLIO cine ence passim

Hughes v. Washington, 389 U.S. 290 (1967) .... 2

Loretto v. Teleprompter Manhattan CATV Corp..,

Oe he ENED keiceritiecerdecasiseeetien 8

Lucas v. South Carolina Coastal Commission.

SF Vi Pe COED ied scadentneRdnssaeciand 6

Mayhew v. Town of Sunnyvale,

964 BS. W 20 S2Z (TOM. BGIB) cscs cisiccssessccsassss 8

Penn Central Transportation Co. v.

New York City,438 U.S. 104 (1978) ............. 7

Reahard v. Lee County,

968 F.2d 1131 (11 Cir. 1992) voocccccccccccccceees g

Vv

San Diego Gas & Electric Co. v.

City of San Diego, 450 U.S. 621(1981) ....... 2

Santini v. Connecticut Hazardous Waste

Management Service,

rot Ee Wes EE). | eerreeemernnrenrrns ar passim

Yuba National Resources Inc., v. United States.

821 F.2d 638 (Fed. Cir. 1987) ...................... 2

Zinn v. State, 112 Wis.2d 417 (1983) .......... 3

Other

Washburn, “Reasonable Investment-Backed

Expectations’ As A Factor In Defining

Property Rights, 49 Wash. U. J. Urb.

‘Comb. L. GS CISD cscs ccsccsiscsecascinccenacs 8

SUMMARY OF ARGUMENT

To find a regulatory taking one must generally either

allege the loss of “economically viable use” of property

or failure of a governmental entity to “substantially

advance legitimate state interests.” a test grounded in

constitutional reason and Supreme Court precedent.

When utilizing this test, a reviewing court looks

squarely at the effect of the government action upon the

property interest, not the stated or inferred governmental

intent behind the action. The court below has chosen to

skirt the required review of the impact upon the property

owner, and instead give a mere cursory look to the

governmental unit’s ‘intent’ — finding that intent alone

determines whether a regulatory taking has occurred.

By rewriting this Court’s regulatory takings analysis,

the lower court has removed from judicial consideration

any review of a property owner’s “distinct investment

backed expectations,” tossing such questions aside

whenever it deems that the government intended no

taking — regardless of the actual financial impact upon

the property owner. This novel approach to takings

jurisprudence effectively shields governments from

potential liability for regulating Fifth Amendment

property rights so long as they ‘intended’ to do

something else.

9d

—

REASONS FOR GRANTING THE WRIT

I.

BY FOCUSING ON THE INTENT BEHIND A

GOVERNMENTAL ACTION RATHER THAN ITS

' EFFECT ON PRIVATE PROPERTY RIGHTS,

THE COURT BELOW REPLACED

REGULATORY TAKINGS ANALYSIS WITH A

DEEPLY FLAWED ‘MENS REA’ REVIEW

NOT APPROPRIATE TO

FIFTH AMENDMENT JURISPRUDENCE

That the effect of a governmental action should be

the focus of a takings review, rather than the alleged or

inferred intent of the governmental actor, is well

established.

“|T]he Constitution measures a taking of property

not by what a State says, or by what it intends, but by

what it does.” Hughes v. Washington, 389 U.S. 290,

298 (Stewart, J. concurring). This legal principle is also

found in Justice Brennan’s dissent in San Diego Gas &

Electric,' and in a fully developed state in the Court’s

opinion in First English, which noted that “where the

government's activities have already worked a taking of

all use of property, no subsequent action by the-

government can relieve it of the duty to provide

' San Diego Gas & Electric Co. v. City of San Diego, 450 U.S.

621, 652-53 (1981 )(Brennan, J., dissenting) (but representing the

substantive views of five members of the Court); See also Yuba

National Resources Inc., v. United States, 82\ F.2d 638 (Fed. Cir.

1987).

3

~

compensation.” ~ State courts have also followed this

path. “It is the effect of the state’s action that triggers the

Just Compensation Clause. not the intent of the

government in taking the action which led to the

deprivation of private property rights.” Zinn v. State,

112 Wis.2d 417, 430 (1983).

Indeed, at least two members of the Connecticut

Supreme Court also agree.

If the state has destroyed the value of a

person's property, no difference of

constitutional magnitude inheres in_ the

question of whether the state intended to do

so....[ T]he mens rea of the state — assuming

that it can be divined — has nothing to do with

an individual’s” right .to invoke — the

constitutional guarantee of just compensation

for harms inflicted by the state.

Santini v. Connecticut’ Hazardous Waste

Management Service, 251 Conn. 121, 149

(1999)(Berdon, J., dissenting).

Yet the rest of the Connecticut Court decided instead

that the effect of a governmental action on private

property rights - no matter how severe — simply does

not factor into the judicial equation. Finding that the

case involved but the siting of a storage facility for low-

* First English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304, 321 (1987).

4

level radioactive waste, the court below deemed the

process “mere governmental planning” rather than a

“fixed and irreversible decision” to seize property.

Santini at 140. Since there was no ‘intent’ to actually

take possession of the property, there could be no

grounds for a takings claim, so the majority explained.

While the denial of compensation for turning the

subject property into what one justice dubbed

“Chernobyl Estates” is troubling, much more

disconcerting is the exemption from takings review

carved out by this decision for cases not found to

involve the requisite level of governmental intent. It is

not intent which the takings clause of the Fifth

Amendment measures, but damage to private property

rights.

As this court has noted:

Almost from the inception of our

regulatory takings doctrine, we have held that

whether a regulation of property goes so far

that "there must be . . . compensation to

sustain the act ... depends upon the paiticular

facts." (citations omitted). Consistent with

this understanding, we have _ described

determinations of liability in regulatory

takings cases as " ‘essentially ad hoc, factual

inquiries,’ " (citations omitted), requiring

"complex factual assessments of the purposes

5

and economic effects of government actions."

(citation omitted).

City of Monterey v. Del Monte Dunes at Monterey.

526 U.S. 687, 720 (1999).

And as recently explained by the Court of Federal

Claims: 3

Our role . . is not to make policy choices

about the best ratio of regulation to individual

rights, but to answer the question whether the

public must pay for its regulations .... If

those regulations take property the

Constitution gives a simple answer: yes it

must. The Founders chose to provide for just

compensation, and this court must determine

whether the Takings Clause is triggered by

the facts before us today.

Florida Rock Industries, Inc. v. United States. 45 Fed.

Cl. 21, 24 (1999).

When a court crosses over into efforts to discern

‘intent,’ it moves to an entirely different analysis most

often found in the criminal context. As noted in a

dissent from the court below, “a particular state of mind

is appropriate only when we are attempting to determine

whether a transgressor was morally responsible for a

harmful act... . The takings clause of the constitution is

not a criminal sanction; the courts are not asked to find

the state ‘guilty’ of a taking.” Santini at 149.

Yet that is precisely the end result of the analysis

adopted by the court below — a requirement that the

government be found to have the appropriate mens rea

(and a ‘fixed and irreversible’ intent at that) before a

taking can be found.

To suggest that the mens rea takings test adopted by

the court below will muddy this Court's existing takings

jurisprudence is to speak lightly. The court below

declared a series of takings cases — including Dolan v.

Tigard’and Lucas’ v. South Carolina Coastal

Commission’ — inapplicable because none of them

involved a government intent only on “mere planning,”

without any aim to take property.

Such a test is not merely misguided but incompatible

with this Court’s constitutional interpretations of the

takings clause. Allowing it to stand uncorrected puts in

jeopardy the existing right of property owners to effect-

centered, fact-based hearings on takings claims.

*512 U.S. 374 (1994).

* 505 U.S. 1003 (1992).

7

IT.

BY FAILING TO ANALYZE THE ECONOMIC

IMPACT OF THE GOVERNMENTAL ACTION

ON PROPERTY INTERESTS,

THE COURT BELOW

UTTERLY DISREGARDED THE OWNER’S

“DISTINCT INVESTMENT-BACKED

EXPECTATIONS”

In rejecting other precedents of this Court. the court

below ignored what has become one of the central tenets

of takings analysis.

“In engaging in these essentially ad hoc. factual

inquiries, the Court's decisions have identified several

factors that have particular significance. The economic

impact of the regulation on the claimant and.

particularly, the extent to which the regulation has

interfered with distinct investment-backed expectations

are, of course, relevant considerations.” Penn Central

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

(1978).

These standards of review are now commonly quoted

in takings jurisprudence. “The Penn Central inquiry

entails an analysis of the economic impact. effect on

reasonable _investment-backed — expectations, —_ and

character of the government action. Using these factors.

a partial regulatory taking may be found where a

regulation results in a deprivation of *a substantial part

but not essentially all of the economic use or value of

the property (citation omitted).’” Florida Rock at 31.

While certainly reaching different results, courts

nationwide consistently recognize the centrality of this

analysis. “The economic impact of the regulation,

especially the degree of interference with investment-

backed expectations, is of particular significance.”

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 426 (1982)(Finding a taking); “[P]Jerhaps most

importantly, what was the diminution in the investment-

backed expectations of the landowner, if any, after

passage of the regulation?” Reahard v. Lee County, 968

F.2d 1131, 1136 (11" Cir. 1992)(Remanded _ for

application of Penn Central standards), cert. denied, 514

U.S. 1064 (1995); “Even if the governmental regulation

has not entirely destroyed the property's value, a taking

can occur if the regulation has a severe enough

economic impact and the regulation interferes with

distinct investment-backed expectations. . . . The

reasonable investment-backed expectation of the

claimant is critical to this analysis. . .” Mayhew v. Town

of Sunnyvale, 964 SW2d 922, 937 (Texas 1998)(Finding

no taking).°

Considering that the general remedy for a taking is

compensation, it makes perfect sense for this Court and

others throughout the nation to look to an owner’s

‘distinct investment-back expectations’ in order to

determine both the degree of damage and to set a proper

level of reimbursement for that damage.

* See generally, Washburn, “Reasonable Investment-Backed

Expectations” As A Factor In Defining Property Interest, 49

Wash. U. J. Urb. & Contemp. L. 63 (1996).

9

Without a factual review of such financial

expectations, how would one know that a taking existed.

much less how to compensate an owner for their loss?

By refusing to explore this question, the court below

failed to properly explore the actual impact of the

governmental action upon the owner's property rights.

“Although there is no right to recoup’ one’s

investment, the inability to do so weighs in [petitioner's |

favor, since the regulation consequently places a greater

burden on [petitioner.]° Florida Rock at 39. It is that

consideration which petitioner here has been denied

consideration of the inability to recoup an investment

due to governmental action. If this Court does not

reaffirm that ali courts must take into account “distinct

investment-backed expectations’ when reviewing a

takings claim, Petitioner, and others like him. face a

bleak future before the bench. For if the courts will not

take into account a_ property owner's ‘distinct

investment-backed expectations’ when reviewing a

takings claim, who will?

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CONCLUSION

For the above reasons, the amicus respectfully

requests that this Court grant the Petition for a Writ of

Certiorari.

Respectfully submitted,

Christopher Senior

National Association

of Home Builders

1201 15" Street, NW

Washington, DC 20005

(202) 822-0300

April 28, 2000