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

i Supreme Court, U.S.

(M) FILED

, MAY 3 - 2000

No. 99 - 169

7

CLERK

In the

Supreme Court of the United States

EVANDRO S. SANTINI, et al.,

Petitioners,

Ws

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Connecticut

BRIEF OF AMICUS CURLZ NEW ENGLAND

LEGAL FOUNDATION IN SUPPORT OF PETITIONERS

Counsel for Amicus Curie MICHAEL E. MALAMUT *

* Counsel of Record

Loretta M. Smith

New England Legal Foundation

150 Lincoln Street

Boston, MA 02111

Telephone: (617) 695-3660

TABLE OF CONTENTS

ame OC PD Cg ss oe ck kk whe aka ccaen 2

FER yea et SR A.M hy Beinn ren ae eel Ae COG I 3

I. THIS COURT SHOULD GRANT THE PETITION To

MAKE CLEAR THAT STATE COURTS AND STATE

ADMINISTRATORS MUST ADHERE TO THIS

COURT’S FIFTH AMENDMENT STANDARDS .... 3

II. THIS COURT SHOULD GRANT THE PETITION To

CLARIFY THE EXTENT TO WHICH, IF ANY,

GOVERNMENTAL PLANNING IS IMMUNE FROM

SCRUTINY UNDER THE FIFTH AMENDMENT ... 4

rr eer re ee 9

TABLE OF AUTHORITIES

CASES

Danforth v. U. S., 308 U.S. 271 (1939) .............. 6

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...... 5 n.3

First English Evangelical Lutheran Church v. Los Angeles

(omeey, 462 US. SHO (TRSED 6 66a csnsutaneees 4,9n4

Kirby Forest Industries, Inc. v. U.S..,

GGl U.S. 8 CGD « o.oe cea dense 6, 7,3

Lambert v. San Francisco, 68 U.S.L.W. 3612 (Mar. 27,

2000) (No. 99-697) (Scalia, J., dissenting from the denial of

rg) re “sc kk ea ba Cee 3

Lucas v. South Carolina Coastal Council,

Sad Ws. Wee Cee s 6 ck cu cuneeanee 4,5n.3,7,9n.4

Penn Central Transportation Co. v. New York City,

458 U. 3. RG CI eee scan ceecueccae ee 5 n.3,8

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amend. V .... 2.2... 0008.: passim

RULES

ee Oh eyewear l

SU. CH. GR. SRD 6 oon Ke i ceacacke pelea eeeees I n.]

-ii-

OTHER AUTHORITIES

D. Callies, Regulatory Takings and the Supreme Court: How

Perspectives on Property Rights Have Changed from Penn

Central to Dolan and What State and Federal Courts Are

Doing About It, 28 Stet. L. Rev. 523 (1999) .......... 3

R. Rosenberg, The Non-Impact of the United States Supreme

Court Regulatory Takings Cases on the State Courts: Does

the Supreme Court Really Matter? 6 Fordham Envtl. L.J.

Se ee ee ee ee ee ee ee ee ee 3

-iii-

INTEREST OF AMICUS CURL

The New England Legal Foundation (“NELF’), a

non-profit, public interest law firm, was incorporated in

1977.' Its membership consists of individuals, businesses,

and others who believe in promoting balanced economic

growth for New England, protecting the free enterprise

system, and defending economic and property rights.

NELF’s more than 130 members and supporters include a

cross-section of large and small businesses from all parts of

New England and the United States. NELF has regularly

appeared in state and federal court, as party or counsel, in

Cases raising issues of general economic significance to the

business community. E.g., Natsios v. National Foreign Trade

Council, 181 F.3d 38 (1st Cir.), cert. granted, 120 S. Ct. 525

(1999); UNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999);

BMW v. Gore, 517 U.S. 559 (1996); Reich v. Southern New

England Telecommunications Corp., 121 F.3d 58 (2d Cir.

1997); Georgine v. Amchem Products, Inc., 83 F.3d 610 (3d

Cir. 1996); Conservation Law Foundation v. Department of

the Air Force, 79 F.3d 1250 (Ist Cir. 1996); Preseault v.

United States, 66 F.3d 1167 (Fed. Cir. 1995).

Amicus seeks to bring to the Court’s attention its

views, and those of its supporters, concerning the scope of

the takings clause of the Fifth Amendment to the United

States Constitution. If the decision below is allowed to.

1. Pursuant to Supreme Court Rule 37.6, counsel for amicus

states that neither counsel for Petitioners nor Respondent

authored this brief in whole or in part and that no person or entity

other than amicus made a monetary contribution to the

preparation or submission of this brief.

l

stand, state courts will continue to apply different standards

of review of regulatory takings under the Fifth Amendment

to the United States Constitution. Moreover, under the

decision below, property owners will be left without

recourse to protect their reasonable investment-backed

expectations when governmental “planning,” rather than

regulation, deprives them of the economically beneficial use

of their property. These issues are of great significance to

NELF’s members as well as to property owners generally.

Pursuant to Supreme Court Rule 37.2, counsel for

Amicus Curiae have secured written consent for the filing of

this brief from counsel for Petitioners and Respondent.

SUMMARY OF ARGUMENT

This Court should grant the Petition and take this

opportunity to direct state courts and state administrators to

apply the Fifth Amendment standards articulated by this

Court. The Connecticut Supreme Court failed to apply these

standards when it excluded governmental actions it

characterized as “mere planning” from Fifth Amendment

scrutiny. Where, as here, the “mere planning” by the

government results in the two-year economic idling of a

fully permitted ongoing residential development, a taking

within the purview of the Fifth Amendment has occurred.

Moreover, where, as here, the reasonable investment-backed

expectations of a property owner have been radically

curtailed, just compensation is required. This Court should

grant the Petition and reject the Connecticut Supreme

Court’s exception to the Fifth Amendment for “mere

planning” activities.

ARGUMENT

I. THIS COURT SHOULD GRANT THE PETITION TO

MAKE CLEAR THAT STATE COURTS AND STATE

ADMINISTRATORS MUST ADHERE TO THIS

COURT’S FIFTH AMENDMENT STANDARDS.

Three members of this Court recently observed that

state courts, now the primary adjudicators of regulatory

takings claims, see Petition at pp. 13-16, do not appear

consistently willing “to hold state administrators to the Fifth

Amendment standards set forth by this tribunal.” Lambert

v. San Francisco, 68 U.S.L.W. 3612, 3613 (Mar. 27, 2000)

(No. 99-697) (Scalia, J., dissenting from the denial of

certiorari). Indeed, as Justice Scalia noted, “[t]here is

reason to believe that this may be more than a local and

isolated phenomenon.” Id. This phenomenon is not limited

to California. See D. Callies, Regulatory Takings and the

Supreme Court: How Perspectives on Property Rights Have

Changed from Penn Central to Dolan and What State and

Federal Courts Are Doing About It, 28 Stet. L. Rev. 523,

524, 551 (1999); R. Rosenberg, The Non-Impact of the

United States Supreme Court Regulatory Takings Cases on

the State Courts: Does the Supreme Court Really Matter? 6

Fordham Envtl. L.J. 523, 555 (1995); Petition at pp. 24-28.

As the Petitioners demonstrate, see Petition at pp. 19-22, the

Connecticut Supreme Court has, in this case, also failed to

follow this Court’s regulatory takings jurisprudence by

holding, as a matter of law, that governmental action which

is undertaken as part of a planning process cannot form the

basis of a temporary regulatory takings claim. This Court

should grant the Petition to make clear that state courts are

required to adhere to this Court’s Fifth Amendment

standards when adjudicating all takings claims.

tow ita %

II. | THis COURT SHOULD GRANT THE PETITION TO

CLARIFY THE EXTENT TO WHICH, IF ANY,

GOVERNMENTAL PLANNING IS IMMUNE FROM

SCRUTINY UNDER THE FIFTH AMENDMENT.

This Court should grant the Petition for another

important reason as well: To clarify the extent to which, if

any, governmental action that is characterized or

denominated as “planning” is immune from analysis under

the Takings Clause.

Under this Court’s regulatory takings jurisprudence,

a taking occurs “when the owner of real property has been

called upon to sacrifice all economically beneficial uses in

the name of the common good, that is, to leave his property

economically idle.” Lucas _v. South Carolina Coastal

Council, 505 U.S. 1003, 1019 (1992) (emphasis in original).

This rule applies to temporary takings accomplished by

governmental regulation, even when the regulation is

subsequently rescinded. Id. at 1031 n.17; see also First

English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304, 321 (1987). Santini demonstrated at

trial that, as a result designation of his property as one of

three potential sites for a hazardous waste dump, he “was

unable to proceed with residential development, and thus

obtain funds from sales to pay down [his] debts . ”

Petition Appendix (“Pet. App.”) at 44a.

The Connecticut Supreme Court, however,

immunized the designation of the Santini property as a

potential hazardous waste site from scrutiny under the

Takings Clause because it held that the designation was

“mere” governmental planning. Pet. App. 17a. The court

further held that, unless and until the Connecticut Hazardous

Waste Management Service (the “Service”) reached a “‘fixed

and irreversible” intent to take Santini’s property by eminent

domain, there could be no taking notwithstanding that

Santini was deprived of the economically beneficial use of

his property in the meantime. Id. at 26a-27a. The court

concluded that the Service did not have the requisite intent

because Santini’s property was but one of three potential

sites and further study and permits were required before the

final selection was made. Id. at 26a. The court regarded the

economic idling of the development for two years as simply

an incident of ownership that was not compensable. Id. at

23a. The court cited First English, 482 U.S. 304, in support

of its holding.” Id. The court further held that this Court’s

other regulatory and temporary takings decisions® were not

pertinent to its analysis because those cases did not involve

“mere planning” by the government. Pet. App. 24a.

The two dissenting justices rejected the “mere

planning” rationale. They noted that “houses and radioactive

wastes do not mix,” id. at 31a, and that it 1s “inconceivable

that a “Chernobyl Estates’ could be a successful real estate

development in Connecticut.” Id. at 38a. These justices

would have held, relying on this Court’s temporary and

2. “Indeed, in First English Evangelical Lutheran Church, the court

reiterated ‘the unexceptional proposition that the valuation of

property which has been taken must be calculated as of the time of

the taking, and . . . depreciation in value of the property by reason

of preliminary activity is not chargeable to the government.’” Pet.

App. 23a (emphasis in original).

3. Dolan v. City of Tigard, 512 U.S. 374 (1994); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992); and Penn Central

Transportation Co. v. New York City, 438 U.S. 104 (1978).

veins

Ey SE BE Neen Las Vl i Dp OT ORE

regulatory takings decisions, that

when, because of the impact on their distinct

investment backed expectations, property

owners like the plaintiffs are forced to

sacrifice al] economically beneficial uses of

their property, even temporarily, a taking that

requires just compensation has occurred.

Id. (MacDonald, J., dissenting); Id. at 32a (Berdon, J.,

dissenting).

As noted above, the majority and dissenting Justices

all found support for their positions in decisions of this

Court. The majority likened the effect of the hazardous

waste designation to an incident of ownership that is subject

to alteration without compensation. Pet. App. 23a. This

Court has recognized in cases in which the federal

government took property by eminent domain, that “[a]

reduction or increase in the value of property [that] may

occur by reason of legislation for or the beginning or

completion of a project” are “incidents of ownership” and

are not considered “a ‘taking’ in a constitutional sense.”

Danforth v. U. S., 308 U.S. 271, 285 (1939). See also Kirby

Forest Industries, Inc. v. U.S., 467 U.S. 1, 15-16 (1984).

The majority applied this logic to the hazardous waste site

designation.

This Court, however, has also

frequently recognized that a_ radical

curtailment of a landowner’s freedom to

make use of or ability to derive income from

his land may give rise to a taking within the

meaning of the Fifth Amendment, even if the

Government has not physically intruded upon

the premises or acquired a legal interest in

the property.

Kirby Forest, 467 U.S. at 14 (emphasis added). In addition, .

“a land-use regulation that severely interfered with an

owner’s ‘distinct investment-based expectations’ might

precipitate a taking.” Id. See Lucas, 505 U.S. at 1015-1019.

This 1s so because

while most burdens consequent upon

government action undertaken in the public

interest must be borne by _ individual

landowners as concomitants of the

“advantage of living and doing business in

a civilized community,” sotic are so

substantial and unforeseeable, and can so

easily be identified and redistributed, that

“justice and fairness” require that they be

borne by the public as a whole..,

Kirby Forest, 467 U.S. at 14 (citations omitted). The

dissenting justices considered the effect of the Service’s

designation under this analysis.

Amicus submits that it is difficult to see how being

designated a potential hazardous waste site through a secret

planning process, with the consequent two-year economic

idling of a fully permitted ongoing residential development,

is a mere “incident of ownership” that the Constitution does

not protect. The designation of Santini’s development, in

which he had already invested millions of dollars,

constituted a “radical curtailment of [his] freedom to make

use of or [his] ability to derive income from his land.” Kirby

Forest, 467 U.S. at 14. The designation, like the regulation

at issue in Lucas, put an abrupt end to Santini’s reasonable

investment-backed expectations. See Lucas, 505 U.S. at

1008.

As this Court has repeatedly recognized:

The question of what constitutes a “taking”

for purposes of the Fifth Amendment has

proved to be a problem of considerable

difficulty. While this Court has recognized

that the “Fifth Amendment’s guarantee .. .

[is] designed to bar government from forcing

some people alone to bear public burdens

which, in all fairness and justice, should be

borne by the public as a whole,” . . . , this

Court, quite simply, has been unable to

develop any “set formula” for determining

when “justice and fairness” require that

economic injuries caused by public action be

compensated by the government, ra’ «er than

remain disproportionately concentrated on a

few persons.

Penn Central Transportation Co. v. New York City, 438 U.S.

104, 123-124 (1978) (alteration in original; citations

omitted). While the Connecticut Supreme Court has not

developed a “set formula” for what constitutes a taking, it

has determined that governmental activities that are

characterized as “mere planning” are not subject to a Fifth

Amendment takings analysis regardless of the impact those

activities have on individual property owners. This

exclusion of a wide-range of governmental action from

scrutiny would allow creative land use planners and other

governmental officials to recast as “planning measures”

many regulations and ordinances that would otherwise be

subject to the Fifth Amendment.* This Court should grant

the Petition and reject this categorical exclusion of “mere

planning” from Constitutional scrutiny.

CONCLUSION

For the foregoing reasons, and those set forth in

Santini’s Petition, this Court should grant the Petition.

Respectfully submitted,

Michael E. Malamut *

* Counsel of Record

Loretta M. Smith

New England Legal Foundation

150 Lincoln Street

Boston, MA 02111

Telephone: (617) 695-3660

Dated: May |, 2000

4. For example, the “Beachfront Management Act” which

prohibited Lucas from building a single-family home could easily be

transformed into the “Sand Dunes Planning Initiative.” See Lucas,

505 U.S. at 1007-09. Similarly, the interim flood protection

ordinance at issue in First English, 482 U.S. at 307, which could

itself have been viewed as a planning device, might be recast as the

“Flood Protection Study and Building Moratorium.”

9