Amicus Curiae Brief — Agencia La Esperanza Corp., Inc. v. Orange County Board of Supervisors

In The

Supreme Court of the Gnited States

ge

v

AGENCIA LA ESPERANZA CORPORATION, INC.,

Petitioner,

v.

ORANGE COUNTY BOARD OF SUPERVISORS

and ORANGE COUNTY PUBLIC FACILITIES

AND RESOURCES DEPARTMENT,

Respondents.

4

v

On Petition For Writ Of Certiorari

To The Court Of Appeals

Of The State Of California

4

vy

BRIEF AMICI CURIAE OF BUILDING INDUSTRY

ASSOCIATION OF WASHINGTON AND NEW

ENGLAND LEGAL FOUNDATION IN SUPPORT

OF THE PETITION FOR WRIT OF CERTIORARI

¢

JOHN M. GROEN

Counsel of Record

CHARLES A. KLINGE

DIANA M. KIRCHHEIM

GROEN STEPHENS & KLINGE LLP

2101 112th Avenue, NE,

Suite 110

Bellevue, Washington

98004-2944

Telephone: (425) 453-6206

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICL .....ccccsccsvsscsccoscccssccsccvcccescvensses 1

STATEMENT OF THE CASE.............::ccscercesesseseeeeens 2

REASONS FOR GRANTING THE WRIT ..............+.- 5

I. THERE IS A SPLIT AMONG STATE AND

FEDERAL COURTS THAT SHOULD BE

SETTLED BY THIS COURT.............::ccessseeeeeees 5

II. WHETHER THE DOLAN “ROUGH PROPOR-

TIONALITY” STANDARD APPLIES TO LEG-

ISLATIVELY IMPOSED EXACTIONS PRE-

SENTS AN IMPORTANT QUESTION OF REG-

ULATORY TAKINGS LAW...........:cscsssseesseeeeeees 9

III. DOLAN’S HEIGHTENED SCRUTINY SHOULD

BE APPLIED TO LEGISLATIVELY IMPOSED

EXACTIONS .........ccsscccsscssoscseccerscsssssessesessnsevenees 12

CONCLUSION weies.ssssssccccrsccssscscccercccessecreneneessncnesosess 16

ii

TABLE OF AUTHORITIES

Page

UNITED STATES CONSTITUTION

US. Comat. ami. ¥ cctsisicciciscsctieisdnnsiiniens 9,15

CASES

Amoco Oil Company v. Village of Schaumburg, 661

BYTE RB Ge Tica pscavintacenctie canteen atatsiaincesasnss 14

Arcadia Development Corporation v. City of Bloom-

ington, 552 N.W.2d 281 (Minn. 1996) ..............ccccccsseeeees 8

Armstrong v. United States, 364 U.S. 40 (1960)................. a

Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226

(LD E vssindesecsnreciccieh ska een iaietiiaiens 9

City of Portsmouth v. Schlesinger, 57 F.3d 12 (1st

Che, SI ovvsniisscivccsnsccsntaheanisccachcciecianedaedapialiabiesianne 6

Curtis v. Town of South Thomaston, 708 A.2d 657

(Wenn SID sicinscsscicsincsbchaichaditanissinindanlineneaninieiniiiae 7

Dolan v. City of Tigard, 512 U.S. 374 (1994)............. passim

Ehrlich v. City of Culver City, 911 P.2d 449 (Cal.),

cert. denied, 519 U.S. 929 (1996) ............cccccccccccscsseeseeees 7

Garneau v. City of Seattle, 147 F.3d 802 (9th Cir.

OD isssscsscsiciiecicinininmistcesacaisteichasstiieiaaaaaiai alata 6

Home Builders Association of Central Arizona v.

City of Scottsdale, 930 P.2d 993 (Ariz.), cert. de-

palo, GEE TTB: TA ee si ovistensnisacntnimnstinestoiocees 6, 7,12

Home Builders Association of Dayton and the

Miami Valley v. City of Beavercreek, 729 N.E.2d

I Ce sais th teil ccccitiiassiahonsincidicactiicasntiindiaa 7,14

Isla Verde International Holdings v. City of Camas,

GD Fe Br Cs I ich nktcnctciinkcenisttnictibecnscecninanniinis 7

TABLE OF AUTHORITIES - Continued

Krupp v. Breckenridge Sanitation District, 19 P.3d

Be NG ME ci icici cncenitiabuncabindisakekaundiscseressesssoesaerecse 8

Manocherian v. Lenox Hill Hospital, 643 N.E.2d

479 (N.Y. 1994), cert. denied, 514 U.S. 1109

do i ce nadaneannneiocmmsannn center’ 7

National Association of Home Builders of the

United States v. Chesterfield County, 907

F. Supp. 166 (E.D. Va. 1995), aff’d, 92 F.3d 1180

Nee a cLumeahuacuiieebbaoiiene 6

Nollan. v. California Coastal Commission, 483 U.S.

SBE AESE AER cee ae ier er ere aoe eee 6, 10, 15

Northern Illinois Home Builders Association, Inc. v.

County of Du Page, 649 N.E.2d 384 (Ill. 1995)............... 7

Parking Association of Georgia, Inc. v. City of

Atlanta, 450 S.E. 2d 200 (1994), cert. denied, 515

Be Be ID Gc deicastak ba cdi teins insnieessesscensaveceuses 6, 8, 13, 14

Rogers Machinery, Inc. v. Washington County, 45

P.3d 966 (Or. Ct. App.), petition for review to the

Supreme Court of Oregon denied, 52 P.3d 1057

a sadupwedanepnionanines 6, 8

San Remo Hotel L.P. v. City and County of San

Francisco, 41 P.3d 87 (Cal. 2002).................sssercceseeesoeees 12

Southeast Cass Water Resource District v. Burling-

ton Northern Railroad Company, 527 N.W.2d 884

rac ahs ccinis stlonsibebuebnbdiceovanedeeednesi 8

Trimen Development Company v. King County, 877

I IIS BIND ssicticrcsacsnsdsnasciccioecesssnnsnivbovnbosevesons 7

Village of Norwood v. Baker, 172 U.S. 269 (1898)............. 10

Waters Landing Limited Partnership v. Montgom-

ery County, 650 A.2d 712 (Md. 1994)..............cccseseseseeeeee 8

eo

iv

TABLE OF AUTHORITIES — Continued

Page

SUPREME COURT RULES

Rule 10.1(b)........c.sscsccscsssscessscssscessesnseneessceassnnsecssesnsensnssnseees 5

Rule 10(c) ..........--scsscccessssccssssscccesenrcsessensscneneeeeessnssnsessoosenaees 5

Rule 37(6).......ccscccccsssccsesssccsssssscscseceesssessnscnsssensesessncesscosessees 1

MISCELLANEOUS

Faus, Richard Duane, Exactions, Impact Fees, and

Dedications: Local Government Responses to Nol-

lan/Dolan Takings Law Issues, 29 STETSON L.

REV. 675 (2000) ........-secccccssssscecessceesssnseseesessssseeessesensensees 5

George Avalos, “Tangle of Red Tape Inflates Costs

for Homebuyers in the East Bay,” CONTRA COSTA

TIMES, Sept. 29, 2002 .........:secessessesereesserssreenensensssseneeers 11

HBA News, “City of Livermore Tops $100,000 in

Home Building Fees,” July/August 2002............0+0++ 11

Impact FEE HANDBOOK (National Association of

Home Builders) 1997 ............scsssssscssssseseeesesesscnceeeeenensenss 11

Reznik, Inna, The Distinction Between Legislative

and Adjudicative Decisions in Dolan v. City of

Tigard, 76 NYU. L. REV. 242 (2000) ......-.-.-s-sessssssreeeseseees 6

1

INTEREST OF AMICI

Pursuant to Supreme Court Rule 37, Building Indus-

try Association of Washington (BLAW) and the New Eng-

land Legal Foundation (NELF) respectfully submit this

brief amicus curiae in support of petitioner, Agencia La

Esperanza Corporation. Written consent to the filing of

this amicus brief has been granted by counsel for all

parties.’ Copies of the consent letters have been lodged

with the Clerk of the Court.

BIAW is Washington state’s largest trade association,

with over 9,600 members representing over 350,000

Washington citizens who work in various trades associated

with the development and construction of residential

housing. BIAW members routinely are required to pay

impact fees, such as the traffic mitigation fees at issue in

this case, as a condition of receiving subdivision approval.

BIAW has a substantial interest and stake in the determi-

nation of whether such fees must be “roughly proportional”

to the impact caused by the proposed development.

The New England Legal Foundation (NELF) is a non-

profit, public interest law firm, incorporated in Massachu-

setts in 1977. It is headquartered in Boston. Its member-

ship consists of corporations, law firms, individuals, and

others who believe in NELF’s mission of promoting bal-

anced economic growth for New England, protecting the

free enterprise system, and defending economic rights.

NELF’s more than 130 members and supporters include a

1 Pursuant to Supreme Court Rule 37(6), counsel for amici

authored the brief in whole. Amici solely funded the preparation and

filing of this brief.

2

cross-section of large and small corporations from all parts

of the Commonwealth, New England, and the United

States. NELF’s members are affected by the business

climate in New England and nationwide. Furthermore,

some of NELF’s members are directly interested in the

issue of regulation of real estate development because they

are involved in building, owning, managing, insuring, and

financing real property. A healthy real estate climate is a

mark of a vital and vibrant economy and depends on

secure rights for property owners. For those reasons,

NELF’s members are concerned about the issues pre-

sented in this case.

The opinion below holds that the heightened scrutiny

set forth by this Court in Dolan v. City of Tigard, 512 USS.

374 (1994) is not applicable to legislatively adopted exac-

tions. As a result, the lower court’s ruling stands for the

proposition that when conditions are attached to the

approval of development permits via legislative authoriza-

tion, the conditions do not have to be “roughly propor-

tional” to the impact created by the proposed development.

Amici believe that the ruling below is incorrect and will

severely impact private property rights and affordable

housing.

&

vv

STATEMENT OF THE CASE

This case involves the appropriate judicial scrutiny

that should be applied to exactions. An exaction is a

demand that a property owner give up something of value

— whether it be land, an interest in land, or money — as a

condition to obtaining necessary permits or other govern-

mental approvals to build on one’s property.

3

The type of exaction involved in this case is an impact

fee. Impact fees are levied by local governments against a

proposed new development in order to generate revenue

for infrastructure allegedly necessitated by the new

development. Impact fees have been an increasingly

popular way for governments to raise revenue in lieu of

taxes.

In this case, Agencia La Esperanza Corporation

(Esperanza) constructed a 110,414 square foot self-storage

facility in Orange County, California. As a condition for

approval of the project and issuance of building permits,

Esperanza was required to pay a total of $194,880 as

traffic mitigation fees. The impact fees were computed by

looking at three factors: the anticipated use (nonresiden-

tial), the gross square footage or number of units, and the

area of benefit as defined in the fee program.

The County concedes that it never conducted a traffic

analysis to determine the actual impact of the project.

Instead, the County lumps the proposed self-storage

facility in with other types of commercial uses and applies

a uniform fee calculation. The problem is that self-storage

facilities generate significantly less traffic than other

types of commercial uses. For example, the undisputed

evidence established that Esperanza would have to pay

the same fee per square foot as a similarly sized medical

clinic located in the same area even though the medical

clinic generates approximately twelve times as much

traffic. Petition for Writ of Certiorari at 3-4." In short, the

? This calculation was based upon the Moulton Parkway fee

program. Under that program, Esperanza would have to pay approxi-

mately $220 per trip generated. Under that same program, however, a

(Continued on following page)

4

amount of the fee is grossly disproportionate to the impact

of the project.

Under this Court’s precedent in Dolan v. City of

Tigard, Esperanza contends that the traffic fee is not

related in “extent to the impact of the proposed develop-

ment.” 512 U.S. at 391. Indeed, the California Court of

Appeals practically conceded that the imprecision of the

calculation does not meet the roughly proportional test of

Dolan. Pet. for Cert., Appendix A-4 and A-5. Nevertheless,

because the traffic fee was uniformly imprecise, the Cali-

fornia court concluded that constitutional protections

established by this Court were not triggered. As stated by

the court below:

Here, the calculation of development fees, impre-

cise as it may be, is applied uniformly, generally,

and ministerially. As a result, heightened scru-

tiny is not triggered.

Pet. for Cert., Appendix A-4.

The court below held that the heightened standard of

judicial scrutiny set forth in Dolan, requiring that exac-

tions be roughly proportional to the impact caused by the

proposed development, was not triggered because the fees

were uniformly applied to project applicants through

legislation. The issue presented for this Court’s resolution

dental office would pay only $33.63 per trip.

5

is whether the applicability of the constitutional protec-

tions established in Dolan can so easily be circumvented.

¢

REASONS FOR GRANTING THE WRIT

Supreme Court Rule 10.1(b) lists among the consid-

erations governing review on certiorari the circumstance

when a state court of last resort has decided a federal

question in a way in conflict with another state court of

last resort, or of a Federal Court of Appeals. Rule 10(c)

includes as a ground for review when a state court of last

resort has decided an important question of federal law

which has not been, but should be, settled by this Court, or

has decided a federal question in a way in conflict with

applicable decisions of this Court. Both of these grounds

for review are present in this case.

I

THERE IS A SPLIT AMONG STATE AND

FEDERAL COURTS THAT SHOULD BE

SETTLED BY THIS COURT

Lower courts have been interpreting Dolan in an

inconsistent manner thus creating a nationwide split of

authority on whether Dolan’s rough proportionality test

applies to legislatively enacted exactions. Currently, both

scholars and the courts have commented on the significant

“split of authority” clouding this issue. See eg., Faus,

Richard Duane, Exactions, Impact Fees, and Dedications:

Local Government Responses to Nollan/Dolan Takings

Law Issues, 29 STETSON L. REV. 675, 693-701 (2000)

(recognizing a “nationwide split of authority” on whether

the Dolan test applies to legislatively enacted, uniformly

6

applied impact fees); Reznik, Inna, The Distinction Be-

tween Legislative and Adjudicative Decisions in Dolan v.

City of Tigard, 76 Nyv. L. REV. 242, 256-57 (2000) (“There

is considerable disagreement over whether legislative

decisions are subject to Dolan’s heightened scrutiny

review.”); Garneau v. City of Seattle, 147 F.3d 802, 811 (9th

Cir. 1998) (there is “considerable doubt” about the applica-

bility of the Dolan’s rough proportionality test to “legisla-

tive, as opposed to administrative exactions”); Home

Builders Association of Central Arizona v. City of Scotts-

dale, 930 P.2d 993, 1000 (Ariz.), cert. denied, 521 U.S. 1120

(1997) (the question “has not been settled.”); Rogers

Machinery, Inc. v. Washington County, 45 P.3d 966, 976

(Or. 2002) (A “split of authority exists in lower courts as to

whether Dolan is limited to development conditions

imposed through adjudicatory decisions or whether it

extends to those imposed as a result of generally applica-

ble legislation.”).

Two Justices of this Court have acknowledged the

“conflict” over whether Dolan’s test should be applied

when exactions are imposed through legislation. Parking

Association of Georgia, Inc. v. City of Atlanta, 515 U.S.

1116, 1118 (1995) (Thomas, J., and O’Connor, J., dissenting

from denial of certiorari) (“the lower courts should not

have to struggle” with this issue.).

A review of courts dealing with this issue reveals that

characterizing the issue as “unsettled” is an understate-

ment. Two federal courts and five state jurisdictions have

applied Dolan’s heightened scrutiny to legislatively im-

posed exactions. City of Portsmouth v. Schlesinger, 57 F.3d

12, 16 (1st Cir. 1995) (Dolan analysis applied to impact fee

imposed by ordinance); National Association of Home

Builders of the United States v. Chesterfield County, 907

ements ~~

7

F. Supp. 166, 167 (E.D. Va. 1995), aff’d, 92 F.3d 1180 (4th

Cir. 1996) (Dolan applied to a county policy to guide the

county’s acceptance of proffers); Northern Illinois, Home

Builders Association, Inc. v. County of Du Page, 649

N.E.2d 384, 388-389 (Ill. 1995) (Dolan applied to transpor-

tation impact fee ordinance), Curtis v. Town of South

Thomaston, .708 A.2d 657, 660 (Maine 1998) (Dolan ap-

plied to fire protection ordinance requiring developers to

construct fire pond); Manocherian v. Lenox Hill Hospital,

643 N.E.2d 479, 482 (N.Y. 1994), cert. denied, 514 U.S.

1109 (1995) (Dolan applied to statute requiring apartment

owners to renew certain leases with non-private hospital

employees); Home Builders Association of Dayton and the

Miami Valley v. City of Beavercreek, 729 N.E.2d 349, 353

(Ohio 2000) (Dolan’s “rough proportionality” test applica-

ble to ordinance imposing impact fees); Trimen Develop-

ment Company v. King County, 877 P.2d 187, 191 (Wash.

1994) (Dolan applicable to ordinance imposing park

development fees).’

On the other hand, eight state courts have held

Dolan’s heightened review is inapplicable to legislatively

imposed exactions. See e.g., Home Builders Association of

Central Arizona v. City of Scottsdale, 930 P.2d at 1000

(Dolan’s rough proportionality test does not apply to water

service fee enacted by ordinance and uniformly applied to all

properties); Ehrlich v. City of Culver City, 911 P.2d 429, 444

the land as open space or pay a fee in lieu. See Isla Verde International

Holdings v. City of Camas, 49 P.3d 867 (Wash. 2002). As a result, the

Washington Supreme Court did not reach the constitutional question.

8

(Cal.), cert. denied, 519 U.S. 929 (1996) (Dolan inapplica-

ble to fees imposed legislatively); Krupp v. Breckenridge

Sanitation District, 19 P.3d 687 (Colo. 2001) (Dolan inap-

plicable to sanitation district fee imposed legislatively);

Parking Association of Georgia v. City of Atlanta, 450

S.E.2d 200, 203 (1994), cert. denied, 515 U.S. 1116 (1995)

(ordinance imposing parking lot standards upon parking

lot owners held not to violate Dolan because it was a

legislative determination); Southeast Cass Water Resource

District v. Burlington Northern R. Co., 527 N.W.2d 884,

885 (N.D. 1995) (Dolan not applicable to requirement that

railroad pay costs for alterations of bridge and culverts

because imposed under legislative enactment), Waters

Landing Limited Partnership v. Montgomery County, 650

A.2d 712, 724 (Md. 1994) (Dolan inapplicable to development

impact fees); Arcadia Development Corp. v. City of Blooming-

ton, 552 N.W.2d 281, 286 (Minn. 1996) (Dolan inapplicable to

ordinance requiring mobile home park owners to close their

parks to pay relocation costs to park residents); Rogers i

Machinery, Inc. v. Washington County, 45 P.3d 966, 967, 982

(Or. Ct. App.), petition for review to the Supreme Court of

Oregon denied, 52 P.3d 1057 (Or. 2002) (Dolan inapplicable

to traffic impact fee assessed by ordinance).

A survey of lower courts applying Dolan confirms that

there is much confusion over whether Dolan’s rough

proportionality test should be applied to legislative versus

adjudicative land use decisions. The effect is that in some

jurisdictions, lower courts will apply the Dolan heightened

scrutiny to legislatively imposed exactions, while in

others, a less stringent review will be conducted on such

exactions. This inconsistent application of Dolan depend-

ing on which jurisdiction you live in results in unequal

enforcement of the federal constitution. Property owners

9

seeking government permits, whether they reside in

Washington, New England, or California, are entitled to

have their federal constitutional rights consistently and

fully protected. The time is ripe for this Court to provide

the lower courts with necessary guidance on this issue.

Il

WHETHER THE DOLAN “ROUGH

PROPORTIONALITY” STANDARD APPLIES

TO LEGISLATIVELY IMPOSED EXACTIONS

PRESENTS AN IMPORTANT QUESTION OF

REGULATORY TAKINGS LAW

The Takings Clause of the Fifth Amendment of the

United States Constitution, made applicable to the States

through the Fourteenth Amendment, Chicago, B. & Q.R.

Co. v. Chicago, 166 U.S. 226 (1897), provides: “[NJor shall

private property be taken for public use, without just

compensation.” U.S. Const. amend. V. The principal

purpose of the Takings Clause is “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.” Armstrong v. United States, 364 U.S. 40 (1960).

This Court has established a special subset to regula-

tory takings law when the government conditions the

granting of permit approval on an exaction:

Under the well-settled doctrine of “unconstitu-

tional conditions,” the government may not re-

quire a person to give up @ constitutional right —

here the right to receive just compensation when

property is taken for a public use — in exchange

for a discretionary benefit conferred by the

10

government where the benefit sought has little or

no relationship to the property.

Dolan, 512 U.S. at 385.

As succinctly put by Justice Harlan over 100 years

ago:

In our judgment, the exaction from the owner of

private property of the cost of a public improve-

ment in substantial excess of the special benefits

accruing to him is, to the extent of such excess, a

taking, under the guise of taxation, of private

property for public use without compensation.

Village of Norwood v. Baker, 172 U.S. 269, 279 (1898).

This Court has formulated a two-part test for use in

determining whether an exaction constitutes an imper-

missible taking. First, the court determines whether an

essential nexus exists between a legitimate state interest

and the condition exacted by the government. Nollan, 483

U.S. at 836. If an essential nexus exists, the court must

decide the required degree of connection between the

exaction and the projected impact of the proposed devel-

opment. Dolan, 512 U.S. at 386-88. No precise mathemati-

cal calculation is required, but the government must make

some sort of individualized determination that the exac-

tion is roughly proportional in both nature and extent to

the proposed impact of the proposed development. Id. at

391.

Under Dolan, the burden of proof to justify the exac-

tion is on the government, not the property owner. Id.

at 374, n. 8. The test set forth in Dolan is important

because its “rough proportionality” test elevates the level

of scrutiny courts must give to exactions and prevents

11

governments from leveraging permit approval on illegal

exactions.

The importance of this case is evidenced on its broad

impact and the nature of the issue raised. The outcome of

this case will have an impact on anyone who is subject to a

legislatively authorized exaction such as an impact fee.

This could potentially affect the majority of developers and

purchasers of new homes in this nation. Impact fees can

range from several hundred dollars to thousands of dollars

per home or building. IMPACT Fre HANDBOOK (National

Association of Home Builders) 1997 at 2. A study shows

that impact fees and regulatory costs account for a na-

tionwide average of 4.5 percent of the cost of a new home.

George Avalos, “Tangle of Red Tape Inflates Costs for

Homebuyers in the East Bay,” ConTRA Costa TIMES, Sept.

29, 2002. An outrageous example in the San Francisco

area of California reflects the effect burdensome exactions

can have on housing affordability. In Livermore, California

building exactions have topped $100,000 per house. HBA

News, “City of Livermore Tops $100,000 in Home Building

Fees”, July/August 2002 at 14. Because such fees become

part of the purchase price, the detrimental effect it has on

housing affordability is staggering.

As governments continue to face economic challenges

of generating additional revenue to fund needed infra-

structure without raising taxes, the trend will be for more

local jurisdictions to impose such exactions in increasing

amounts. Amici are concerned that without the Dolan test,

governmental bodies will be able to shift the responsibility

for funding general improvements onto a discrete segment

of the public. The Dolan test ensures that the cost of such

exactions does not exceed the development’s fair share of

the cost of improvements.

12

Another measure of the importance of this case is the

amount of litigation that has already taken place on this

issue. The current uncertainty over what standard of

review governs such exa ions benefits no one. Both

developers and governmental bodies deserve to know the

appropriate standard of review for determining when an

exaction is an unconstitutional taking.

The issue presented in this case involves a substantial

federal question involving regulatory takings. The resolu-

tion of this issue has far reaching effects and needs to be

addressed by this Court.

Il

DOLAN’S HEIGHTENED SCRUTINY

SHOULD BE APPLIED TO

LEGISLATIVELY IMPOSED EXACTIONS

The question presented is whether the “rough propor-

tionality” standard announced in Dolan applies to the

exaction in this case. Amici contend that it does apply

because there is no principled basis for distinguishing

between legislative versus adjudicative land use decisions.

Courts limiting the application of the “rough propor-

tionality” standard to purely adjudicative exactions, a8

opposed to legislatively authorized exactions, reason that

the risk of municipal “extortion” is much greater in the

adjudicative context. See San Remo Hotel LP. v. City and

County of San Francisco, 41 P.3d 87, 102-104 (Cal. 2002);

Home Builders Association of Central Arizona, 930 P.2d at

1000. More specifically, these courts rationalize that the

legislative and political processes have more protections in

place for landowners from such abuses by government.

This reasoning is flawed.

13

There is no basis for the rationale that legislative and

political processes provide more protection to property

developers. First, due process does not apply to legislative

enactments so landowners or future potential developers

are entitled to no notice of proposed impact fee legislation.

Second, non-resident landowners and developers have no

voting interest in local elections so their outsider interests

are clearly in the minority. Third, the interests of even

resident landowners or developers are easily discounted as

based solely on personal financial interest and not the

interest of the community. The correct application of the

Dolan test protects those minority interests.

Exactions can be imposed unfairly and disproportion-

ately through legislation or on an individual basis. Apply-

ing Dolan to one form-of government action, but not the

other, does not make sense. The threat of leveraging

discussed in Dolan is just as likely to occur in legislative

decisionmaking processes a6 in adjudicative settings.

Because both types of exactions involve conditioning

governmental land use approval and present the same

opportunities for governmental “leveraging,” the constitu-

tional protection should be consistently applied.

Two Justices of this Court have cast serious doubt on

the theory that legislatively adopted rules should not be

subject to rough proportionality review. Parking Associa-

tion of Georgia, Inc. v. City of Atlanta, 515 U.S. 1116 (1995)

(dissent from denial of petition for writ of certiorari,

Thomas, J., joined by O’Connor, J). Justice Thomas points

out that:

It is not clear why the existence of a taking

should turn on the type of governmental entity

responsible for the taking. A city council can take

property just as well as a planning commission

rrr ii

14

can. Moreover, the general applicability of the

ordinance should not be relevant in a takings

analysis. If Atlanta had seized several hundred

homes in order to build a freeway, there would be

no doubt that Atlanta had taken property. The

distinction between sweeping legislative takings

and particularized administrative takings ap-

pears to be a distinction without a constitutional

difference.

Id. at 1117-18. A subsequent Illinois state court decision

agreed with Justice Thomas’ viewpoint. Amoco Oil Com-

pany v. Village of Schaumburg, 661 N.E.2d 380 (Ill. 1996).

That court said, “Certainly, a municipality should not be

able to insulate itself from a taking challenge merely by

utilizing a different bureaucratic vehicle when expropriat-

ing its citizen’s property.” Id. at 390.

The Dolan test balances the competing interests of

both developers and government and should be applied to

all types of exactions. The Supreme Court of Ohio ex-

plained such competing interests in holding that Dolan

was applicable to a legislatively imposed impact fee

ordinance for funding roadway improvements:

We believe this test [Dolan] will adequately bal-

ance the interests of local governments with

those of property owners. The first prong of the

test decides whether the ordinance is an appro-

priate method to address the city’s stated inter-

ests, and the second prong assures that the city

and developers are paying their proportionate

share of the cost of new construction. >

Home Builders Association of Dayton, 729 N.E.2d at 356.

15

The case now at bar presents a good example of what

happens when Dolan’s rough proportionality test is held

inapplicable to an exaction imposed through legisiaticn.

Esperanza is saddled with paying significantly more than

its proportionate share of the cost its development will

have on traffic. The lower court’s decision thus creates a

loophole for governments to avoid having to comply with

Nollan/Dolan. Under the decision below, government

entities can use their “leveraging” authority through

legislation instead of the adjudicative process to insulate

themselves from liability under the Constitution. The

Fifth Amendment does not allow such an exemption.

,%

v

16

CONCLUSION

Whether Dolan’s “rough proportionality” standard

applies to legislatively imposed exactions is an issue

needing definitive resolution by this Court as evidenced by

the split of authority across the nation on this issue. Until

this Court resolves this substantial federal question

concerning regulatory takings law, the Dolan standard

will continue to be inconsistently applied across the nation

by state and federal courts. Amici respectfully urge this

Court to grant the petition for writ of certiorari and

reverse the judgment of the California Court of Appeals.

DATED: November, 2002.

Respectfully submitted,

JOHN M. GROEN

Counsel of Record

CHARLES A. KLINGE

DIANA M. KIRCHHEIM

GROEN STEPHENS & KLINGE LLP

2101 112th Avenue, N.E.,

Suite 110

Bellevue, Washington

98004-2944

Telephone: (425) 453-6206

Attorneys for Amici Curiae