Amicus Curiae Brief — Rogers Machinery Co. v. Washington County

stitial aaa

Supreme Court, U.S.

[qr FILED

\

No. 02-750 ~~ DEC 4 6 2002

— OF THE Ciér ;

3nu The

Supreme Court of the Gnited States

¢

ROGERS MACHINERY CoO., INC.,

Petitioner,

v.

CITY OF TIGARD, AND

WASHINGTON COUNTY,

Respondents.

On Petition For A Writ Of Certiorari

To The Oregon Court Of Appeals

+.

v

BRIEF OF AMICUS CURIAE

Rs JUSTICE FOUNDATION

SUPPORT OF THE PETITION

STUART BUCK ALLAN E. PARKER, JR.

1717 Main St., Suite 2800 Counsel of Record

Dallas, TX 75201 R. CLAYTON TROTTER

(214) 939-5426 TEXAS JUSTICE FOUNDATION

8122 Datapoint, Suite 812

San Antonio, TX 78229

(210) 614-7157

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Whether, under the Takings Clause, the test of

Dolan v. City of Tigard, 512 U.S. 374 (1994), applies to a

monetary exaction on land development imposed pursuant

to a legislative scheme?

‘i

TABLE OF CONTENTS

Page

QURSTION PR a eo svcvsviscesnsnesesctevsnensecssneenste i

TAREE CI CORR BNO va sccentvcicreiviccvstavtinmstisententouses ii

TAB Lee OF AUT Te CRD ens nvtksivenvceninesesancmvementoes 1

INTEREST OF AMICUS CURIAE ...........:..ccceeeeseeees 1

SUMMARY OF ARGUMENT................ccccssseeeeeeeeeeees 3

REITRTIOTE taiicihisinihtcipabeiccneteeainiadaianias 3

I. The Circuits and State Courts Are Divided

Over Whether to Apply Dolan to Fees and to

Legislative Enactments .................cccseceeeceeeees 3

Be, Fi iciecnicctrsinsntensninnicienieianiicasean 3

I BR vsicicisccstinecinserivccsenccnncens 4

C. This Case Squarely Presents a Conflict

Si TIRE II ivccciniinrescitinentinciianicaimivoss 5

II. The Decision Below Was Incorrect................. 5

A. The Court Below Erred in Concluding

that Fees Receive Less Scrutiny Under

B. The Court Below Erred in Concluding

that the Fee Here was Legislative

Rather Than Adjudicative ...................066 7

C. The Court Below Erred in Concluding

That Dolan Should Not Apply to Legisla-

CD TI ii csassctincecacnincsscteetinons 10

1. No Branch of Government is Exempt

from the Takings Clause .................... 10

2. The Legislative/Adjudicative Distinc-

tion is Unworkable and Irrelevant..... 14

iii

TABLE OF CONTENTS -— Continued

Page

3. The Dolan Court’s Concerns Are More

Readily Addressed by a Facial/As-

Applied Distinction .................::0eceeeeee 17

ATE xicchsecenmnceniuninesatierconecnsenveredtecarqrenseesnees 20

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Armstrong v. United States, 364 U.S. 40 (1960)................ 12

Avery v. Midland County, 390 U.S. 474 (1968) ................. 15

Bannum, Inc. v. City of Louisville, 958 F.2d 1354

(8) "5 REESE Sarto er gent mew on abn een Cer Annee 17

Bi-Metallic Investment Co. v. State Bd. of

Equalization of Colorado, 239 U.S. 441 (1915)............. 11

Chicago, Burlington & Quincy R.R. Co. v. Chicago,

Ee es ee a iinthsteincicockcbuictsiiiniscinnccitienioananien 10, 11

Christopher Lake Dev. Co. v. St. Louis County, 35

a SE III scninks a tisedsticcntncomsctwiasabeiaiiineneesouninens 3

City of Monterey v. Del Monte Dunes at Monterey,

Sa, Te ae A avidtictnieintntileeens 2,3

Clajon Prod. Corp. v. Petera, 70 F.3d 1566 (CA10

SE ecanLibbka si taticeiiiisssteiciahcsaccaitiapiaehbuaialavancetcaianhademaiiiee 3

Daniels v. Area Plan Comm’n of Allen County, 306

Fe REG es iis tities tine necdaiionss 19

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

Dreyer v. Illinois, 187 U.S. 71 (1902)..............ccccceeesseeeeeeees 14

Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989)........ 11

Ex Parte Virginia, 100 U.S. 339 (1879) ..............ccceceseseeees 10

FM Properties Operating Co. v. City of Austin, 93

ee Oe NY SUD ins iocascscsvnchnieiedtccnancinannicisigtbenkceteeudereicn 17

FTC v. Ruberoid Co., 343 U.S. 470 (1952)...............cccseeeeee 17

Garneau v. City of Seattle, 147 F.3d 802 (CA9 1998)......3, 6, 7

Harris v. City of Wichita, 862 F. Supp. 287 (D. Kan.

SOSOSSSSSHESSSSSHESESESESSOSSOS SHES SESE SESESSHSEHHSSSOSESESOEESESESESESSTESEESEEES

TABLE OF AUTHORITIES - Continued

Page

Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence,

ee BR Ce dic cictintceteitiosenenmiins 17

Londoner v. City of Denver, 210 U.S. 373 (1908)............... 11

Loretto v. Teleprompter Manhattan CATV Corp.,

ES Fe Se itis cilia Nee snhnSeincititeihteiaitadibtniinss 11

Lucas v. South Carolina Coastal Council, 505 U.S.

tai ci iedaiacbaiedtatpcciiininaibintncintae bitatiiaiiaias 11, 20

Minnesota v. Clover Lear Creamery Co., 449 U.S.

I rt isi sc tae cctttcnignincipcenlesidbibiatadiliaaaa hie alias 15

Monongahela Nav. Co. v. United States, 148 U.S.

Re a iibtiinstisiccnescietcieicischagailicig iain Maite ie tibiae da 12

New Port Largo, Inc. v. Monroe County, 95 F.3d

Re ee Fe riers icsstieatiatcc al eiatce a eedicatnphacnas 17

Nollan v. California Coastal Comm’n, 483 U.S. 825

Ef RAPD ete nar eee Pe De: cee) LPR at ete MeN PORE 3,4

Parking Ass’n of Georgia, Inc. v. City of Atlanta,

SO SE eee I Nitebinsihensscanicesousecdibeoioweiceaseens 2, 12,14

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

ARLE ce eon ER SOLS WSREESE NF nee eee Sea en an 11

Prentis v. Atlantic Coast Line Co., 211 U.S. 210

82 BMRA fr aap re ne be AEE eT PRE R ADE oP er ae ae 16

Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362

Is esscisceacin puemscasuie Get Ata Ncadicdid tie tla abihchsiiagedicamabelbiics 10

Rent Stabilization Ass’n of City of New York uv.

Dinkins, 5 F.3d 591 (CA2 1998).............csssesssecccercseccceees 19

Scott v. McNeal, 154 U.S. 34 (1894) ......... ce eeeeeeeseeeeeees 10

Shelton v. City of College Station, 780 F.2d 475

Se ie ais ocbeiaepok ces baxnceadant ab eiccanesauteosnaiacnindebvens 14, 17

TABLE OF AUTHORITIES — Continued

Page

Smithfield Concerned Citizens for Fair Zoning v.

Town of Smithfield, 907 F.2d 239 (CA1 1990)............... 17

Suitum v. Tahoe Regional Planning Agency, 520

Fee FAN Tr iain vniperitbunserasnbinbnncbeebicsinieeianansetlidaliaidatinin 19

Texas Manufactured Housing Ass’n v. Nederland,

DO FG TS CARI Ba cssesecenescnssncnssconscocesecineenscnstconis 3

United States v. Florida East Coast Railway Co.,

SRG TE Be Cetin cineictirkcehiceensttainessenaistedpatinanaticwnss 16

United States v. Salerno, 481 U.S. 739 (1987) ............ 18, 19

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

Cee iicsvaiucigicetineatialiinevebscsiaainiiins saoneaseacnianedaeabanatin 19

STATE CASES

Amoco Oil Co. v. Village of Schaumburg, 661

N.E.2d 380 (Til. App. Ct. 1995)...............cccccssssssssssseees 4,12

Arcadia Dev. Corp. v. City of Bloomington, 552

N.W.2d 281 (Minn. Ct. App. 1996).................-ssssseseeeeeeees 4

Arnel Dev. Co. v. City of Costa Mesa, 620 P.2d 565

RARE. TE cass anisintiictedidiciiddintaginteaatiaenleateieleds 16

Art Piculell Group v. Clackamas County, 922 P.2d

PART Ce: Ge ei: BR iarsscssseii ii ccdinetahaciamentcdccarccviainces 6

Benchmark Land Co. v. City of Battleground, 14

P.3d 172 (Wash. Ct. App. 2000)...............:ccccccsccsssreeeeees 4,7

Board of County Comm’rs v. Karp, 662 So.2d 718

CHPigs. SNe. Cb. Date, TIRE ecciscisin sincere in eiccintisvadossntuee 16

Board of County Comm’rs v. Snyder, 627 So.2d 469

CP ae, Fe A, Fe ies ears iicntnnnintierrenesneisernsons 16

Call v. West Jordan, 606 P.2d 217 (Utah 1979)..................

Vii

TABLE OF AUTHORITIES - Continued

Page

City of College Station v. Turtle Rock Corp., 680

SU I i a 6

County of Lancaster v. Mecklenburg County, 434

EEC TAG eset dcceenccsconcstncissnsuiinesicabiabibiumeasibeiisiedle 17

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

RSIS ee. AA MAE EO CO ER RARE EN oe 5

Divan Builders, Inc. v. Planning Bd. of Twp. of

Wayne, 334 A.2d 30 (N.J. 1975) ...........cccccescecssssssecseceseees 6

Ehrlich v. City of Culver City, 911 F.2d 429 (Cal.

Rimi esiasdsnsactanepnsistsnscobiicnsiependiab did sbtucns lelcinia doadeuhanedaas 3,4

Ehrlich v. City of Culver City, 15 Cal. App. 4th

1737, 19 Cal. Rptr. 2d 468 (Cal. App. 2d Dist.

ES ER EE SEER SIRT Te OOM DNR, CPE 5,6

Fasano v. Bd. of County Comm’rs, 507 P.2d 23 (Or.

ESET scene Ae eS ORT ae POLI Py eT OTe a 16

Homebuilders Ass’n v. City of Scottsdale, 902 P.2d

Re Ce Soke PUI. BID saccactaverecevenecnvensnnessonnpisesnoneceeeee 8

Homebuilders Ass’n v. City of Scottsdale, 930 P.2d

I i 3,4

Jenad, Inc. v. Scarsdale, 218 N.E.2d 673 (N.Y.

REE Se Se Fee CA eT nC SE eee eee 6

Jordan v. Village of Menomonee Falls, 1837 N.W.2d

a NE al iisicenaill suiiacosncciebeacukep vonmesticasenceenacovarevinatie 6

Kottschade v. City of Rochester, 537 N.W.2d 301

a a sahounnsnnninnn 5

Krupp v. Breckenridge Sanitation Dist., 19 P.3d 687

os IRR ah aR eae na Ee ean ce A Ne 4,8,9

Landgate, Inc. v. California Coastal Comm’n, 953

Se a IR I soci accaceaeninianicskarcionssbanhiusiiabbibandesni

TABLE OF AUTHORITIES — Continued

Page

Lexington-Fayette Urban County Gov't v. Schneider,

849 S.W.2d 557 (Ky. Ct. App. 1992) ..........cceeceseeeesereeeees 3

Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479

Cs Was BED icescicscisinsnescshienniniiissiciinnacalliiieniiaaiesduidiaibaninapianicndinie 4

McCarthy v. City of Leawood, 894 P.2d 836 (Kan.

SID sissssnisininitiiedisciisitahasisisdicanctaniiniabelibiiiadbibaistindiniiiaeanhiiaawctnitiiis 3

Northern Ill. Home Builders Ass’n v. County of Du

Page, 649 N.E.2d 384 (Tl. 1995) ..............cccccsssssssscsseseees 3

Parking Ass’n of Georgia, Inc. v. City ude Atlanta,

SD Ee ee a ic cettccsenennsenennntanierinnniianianivtionns 4

Pringle v. City of Wichita, 917 P.2d 1351 (Kan. Ct.

et TE cevehiinncittincnt titi eiaiailaicaitallaiaaiaanliliannsitninenins 4

Rogers Machinery Co. v. City of Tigard, 45 P.3d 966

CU Da Ci, TR SID casincesiesiisiienccanastateceinsaclintsnaliins 5, 8, 9, 13

Rogers Machinery Co. v. City of Tigard, 52 P.3d

RG Ce isin tn scisniiitliinaitaititpssiisitlinitasiiitalsipainainmns 5

San Remo Hotel L.P. v. San Francisco, 41 P.3d 87

(CR: Be decides antastiscaineds sanniacicieneaienlaiadailbspliibiniaeta passim

Southeast Cass Water Resource Dist. v: Burlington

Northern R.R. Co., 527 N.W.2d 884 (N.D. 1995)............ 4

Town of Flower Mound v. Stafford Estates, 71

S.W.3d 18 (Tex.App.-Fort Worth, 2002)............. 3, 4, 6, 17

Trimen Dev. Co. v. King County, 877 P.2d 187

COU: icin biitcentisitbasschaitedinchinecatisibaiimestcateiiontbeansiinigs 3

Waters Landing Ltd. v. Montgomery County, 650

DE FEF Ge issih casiateiciccnnsattipittineiactntieinrsenenninns 4

ix

TABLE OF AUTHORITIES — Continued

Page

UNITED STATES CONSTITUTION

Ne i ainninicipcctlinines iceman dutsauninientasetenanenseaeinccenennins passim

ao cieeenganilipeennebnadeononaastnate 11

OTHER AUTHORITIES

Briffault, Our Localism: Part I — The Structure of

Local Government Law, 90 Colum. L. Rev. 1 (1990)......... 15

Briffault, Who Rules at Home?: One Person/One

Vote and Local Governments, 60 U. Chi. L. Rev.

AER REESE Rt ed Ot eS ONC A Ne 15

Carlson & Pollak, Takings on the Ground: How the

Supreme Court’s Takings Jurisprudence Affects

Local Land Use Decisions, 35 U.C. Davis L. Rev.

pea i RESO SR EES NEI HAPTER 7. 2

Hansen, Quasi-Judicial Land-Use Decision Making

in New Castle County, 4 Del. L. Rev. 191 (2001)........... 16

Hershkoff, State Courts and the ‘Passive Virtues’:

Rethinking the Judicial Function, 114 Harv. L.

I a ceanutunwnu 15

Kmiec, Private Property and the Future of

Government Regulation: Inserting the Last

Remaining Pieces into the Takings Puzzle, 38

Wm. & Mary L. Rev. 995 (19977).............cssssscccssssssressreees 12

Reznik, The Distinction Between Legislative and

Adjudicative Decisions in Dolan v. City of Tigard,

75 N.Y.U. L. Rev. 242, 265 (2000) .........ccccccccccecseeceeees 9,15

Rose, Planning and Dealing: Piecemeal Land

Controls as a Problem of Local Legitimacy, 71

ed A EE EI arcinecivstestseinaprincnisiconsessmsniswesosrsees BO

1

INTEREST OF AMICUS CURIAE

This brief amicus curiae in support of the petition is

submitted pursuant to Rule 37 of the Rules of this Court.’

Petitioner and respondents have consented to the filing of

this brief, and their consent letters have been filed with

the Clerk of this Court.

Amicus is the Texas Justice Foundation, a public

interest legal institute that seeks to protect, through

litigation and education, fundamental freedoms and rights

essential to the preservation of American society. Amicus

is especially concerned that doubtful and conflicting

precedents under the United States Constitution’s Takings

Clause will undermine the protections of that Clause. -

,

v

SUMMARY OF ARGUMENT

This case raises two important issues about how to

apply the test of Dolan v. City of -Tigard, 512 U.S. 374

(1994), to land development exactions. The first issue over

which courts have split is whether Dolan applies to mone-

tary exactions or whether it applies only where the gov-

ernment has required a physical dedication of land.

The second issue over which courts have split is

whether Dolan applies to so-called “legislative” exactions,

or whether its application is restricted to so-called

“adjudicative” exactions. Two members of this Court noted

’ No counsel for a party authored this brief in whole or in part, and

no person or entity other than amicus curiae made a monetary contri-

bution to the preparation or submission of this brief.

; 2

the existence of this split over seven years ago in Parking

Ass’n of Georgia, Inc. v. City of Atlanta, 515 U.S. 1116

(1995) (Thomas, J., joined by O’Connor, J., dissenting from

denial of cert.). The split has only worsened since, and

should at long last be resolved by this Court.”

Moreover, the court below erred in three important

ways. It erroneously held that fees are subject to lower

scrutiny under Dolan than are physical dedications, even

though this Court’s jurisprudence makes it clear that fees

should receive the same scrutiny. It erroneously held that

the fee levied on Rogers Machinery was “legislative”

merely because a_ generally applicable and non-

discretionary statute authorized it, even though adjudica-

tions almost always involve the construal and application

of some such statute. And it erroneously held that Dolan

does not apply to so-called “legislative” enactments, even

though there is no constitutional reason to make such a

distinction and, as experience shows, no predictable way to

distinguish “legislation” from “adjudication” in the local

land-use context. ;

»

* As Justice Thomas pointed out, the “confused nature” of the

Court’s takings jurisprudence and the “fact-specific nature” of takings

claims has counseled the granting of certiorari where the lower court

had simply misapplied a prior Court precedent. Id. (citing, e.g., Dolan,

512 U.S. at 383); see also City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 702 (1999) (granting certiorari to deter-

mine whether the lower court properly applied Dolan). Where not only

one but two conflicts present themselves in a single case, review by this

Court is all the more desirable.

3

ARGUMENT

I. The Circuits and State Courts Are Divided

Over Whether to Apply Dolan to Fees and to

Legislative Enactments

A. Fees

Courts have split over whether to apply Dolan to fees

imposed on new land development. Some courts have held

that Dolan and/or Nollan v. California Coastal Comm’n, 483

U.S. 825 (1987), do apply to such fees. See, e.g., San Remo

Hotel L.P. v. San Francisco, 41 P.3d 87, 102-03 (Cal. 2002);

Town of Flower Mound v. Stafford Estates, 71 S.W.3d 18, 31-

34 (Tex.App.-Fort Worth, 2002); Ehrlich v. City of Culver

City, 911 P.2d 429, 443-44 (Cal. 1996); Northern Ill. Home

Builders Ass’n v. County of Du Page, 649 N.E.2d 384, 388-90

(Ill. 1995); Trimen Dev. Co. v. King County, 877 P.2d 187, 194

(Wash. 1994); Lexington-Fayette Urban County Govt v.

Schneider, 849 S.W.2d 557, 559-60 (Ky. Ct. App. 1992)

(applying Nollan); see also Christopher Lake Dev. Co. v. St.

Louis County, 35 F.3d 1269, 1275 (CA8 1994).

On the other hand, several state and federal courts have

reasoned that Dolan applies only to physical dedications of

land. See, e.g., Garneau v. City of Seattle, 147 F.3d 802, 812

(CA9 1998); Texas Manufactured Housing Ass’n v. Neder-

land, 101 F.3d 1095, 1105 (CA5 1996); Clajon Prod. Corp.

v. Petera, 70 F.3d 1566, 1578-79 (CA10 1995); Homebuild-

ers Ass’n of Central Arizona v. City of Scottsdale, 930 P.2d

993, 1000 (Ariz. 1997); McCarthy v. City of Leawood, 894

P.2d 836, 845 (Kan. 1995).

Some of the confusion is due to a dictum in City of

Monterey, supra, where the Court noted that Dolan ap-

plied only to “exactions — land-use decisions conditioning

approval of development on the dedication of property to

4

public use.” 526 U.S., at 702 (emphasis added). Some

courts rely on this language to hold that Dolan does not

apply to fees, see, e.g., Krupp v. Breckenridge Sanitation

Dist., 19 P.3d 687, 697 (Colo. 2001), while other courts take

an opposite view, see, e.g., Town of Flower Mound, 71

S.W.3d at 31-32; Benchmark Land Co. v. City of Battle-

ground, 14 P.3d 172, 173-75 (Wash. Ct. App. 2000).

B. Legislative Acts

Many courts have held that legislative acts are not

subject to Dolan’s heightened scrutiny. See, e.g., Harris v.

_ City of Wichita, 862 F. Supp. 287, 294 (D. Kan. 1994); San

Remo Hotel, 41 P.3d at 104; Ehrlich, 911 P.2d at 447

(observing in dicta that Dolan need not apply to “generally

applicable” fees); Pringle v. City of Wichita, 917 P.2d 1351,

1357 (Kan. Ct. App. 1996); Arcadia Dev. Corp. v. City of

Bloomington, 552 N.W.2d 281, 286 (Minn. Ct. App. 1996);

Scottsdale, 930 P.2d at 1000; Southeast Cass Water Re-

source Dist. v. Burlington Northern R.R. Co., 527 N.W.2d

884, 896 (N.D. 1995); Parking Ass’n of Georgia, Inc. v. City

of Atlanta, 450 S.E.2d 200, 203 n.3 (Ga. 1994); Waters

Landing Ltd. Partnership v. Montgomery County, 650 A.2d

712, 724 (Md. 1994).

On the other hand, several courts have applied Do-

lan/Nollan to legislative acts. See, e.g., Amoco Oil Co. v.

Village of Schaumburg, 661 N.E.2d 380, 389-90 (Ill. App.

Ct. 1995); Manocherian v. Lenox Hill Hosp., 643 N.E.2d

479, 482-85 (N.Y. 1994) (applying Nollan to statute requir-

ing landlords to offer lease renewals to non-profit hospitals);

5

Kottschade v. City of Rochester, 537 N.W.2d 301, 307-08

(Minn. Ct. App. 1995).°

C. This Case Squarely Presents a Conflict on

Both Issues

The case below squarely presents both issues. The

Oregon Court of Appeals held that Dolan may apply to

fees, but “only when the exaction has been imposed

through an adjudicatory process.” /fogers Machinery Co. v.

City of Tigard, 45 P.3d 966, 977 (Or. Ct. App. 2002) (em-

phasis in original). The Oregon Supreme Court denied

review without modifying any aspect of the lower court's

decision. Rogers Machinery Co. v. City of Tigard, 52 P.3d

1057 (Or. 2002). Thus, both issues on which splits have

occurred are presented in this case — ripe for this Court's

resolution.

Il. The Decision Below Was Incorrect

A. The Court Below Erred in Concluding -

that Fees Receive Less Scrutiny Under

Dolan

This Court’s previous actions make it clear that Dolan

applies to fees as much as to physical dedications. First,

the Court remanded Ehrlich v. City of Culver City, 15 Cal.

App. 4th 1737, 19 Cal. Rptr. 2d 468 (Cal. App. 2d Dist.

* Another court applied Dolan to an ordinance requiring an

easement for fire prevention purposes, but stated that it would “assign

weight to the fact that the easement requirement derives from a

legislative rule of general applicability and not an ad hoc determination

made by the planning board at the time of the pending application.”

Curtis v. Town of South Thomaston, 708 A.2d 657, 660 (Me. 1998).

6

1993), for reconsideration in light of Dolan. See 512 US.

1231 (1994). And Ehrlich involved a statute requiring a

fee, not a physical dedication. 15 Cal. App. 4th at 1742, 19

Cal. Rptr. 2d at 470. The Court’s remand in Ehrlich “would

have been an unnecessary waste of judicial resources” if

Dolan did not apply to fees. See Garneau, 147 F.3d at 819

(O’scannlain, J., concurring and dissenting in part).

Second, Dolan itself surveyed many state court cases

for guidance on the appropriate standard. See Dolan, 512

U.S. at 389 (“Since state courts have been dealing with

this question a good deal longer than we have, we turn to

representative decisions made by them.”). Notably, many

of the cases surveyed involved fees in lieu of physical

dedications, indicating that the Dolan Court itself saw no

meaningful distinction between physical dedications and

fees in lieu thereof.

Moreover, to apply Dolan to dedications but not fees

would enormously complicate those cases in which local

governments use both types of exactions, either simulta-

neously or as alternative options. As one court observed,

the result would be a needlessly difficult form of “bifur-

cated review.” Town of Flower Mound, 71 S.W.3d at 33

(citing as an example Art Piculell Group v. Clackamas

County, 922 P.2d 1227, 1230 (Or. Ct. App. 1996)).

* The fee-in-lieu cases cited by Dolan, 512 U.S. at 389-91, include

Jenad, Inc. v. Village of Scarsdale, 218 N.E.2d 673, 675-76 (N.Y. 1966);

Divan Builders, Inc. v. Planning Bd. of Twp. of Wayne, 334 A.2d 30, 33

(N.J. 1975); City of College Station v. Turtle Rock Corp., 680 S.W.2d 802,

804 (Tex. 1984); Call v. City of West Jordan, 606 P.2d 217, 218 (Utah

1979); and Jordan v. Village of Menomonee Falls, 187 N.W.2d 442, 445

(Wis. 1965).

nn,

Most importantly, fees in exchange for development

permits are the functional equivalent of physical dedica-

tions. As Judge O’scannlain has said, to treat fees and

dedications differently “could lead to an absurd result:

whereas a government would be constitutionally unable to

pass a law forbidding landlords from evicting their ten-

ants, the government could presumably accomplish the

same goal... by simply passing a law requiring landlords

to pay evicted tenants an exorbitant amount of money.”

Garneau, 147 F.3d at 821 (O’scannlain, J., concurring and

dissenting in part); see also Benchmark Land Co., 14 P.3d

at 175 (“If the government in Nollan and Dolan had

exacted money rather than land and then purchased land to

solve the problems, the same questions would arise. .. . ”).

In short, nothing in this Court’s jurisprudence re-

quires that fees should receive lower scrutiny. To apply

lower scrutiny in such cases would ultimately facilitate the

circumvention of Dolan, and complicate Takings Clause

jurisprudence even further.”

B. The Court Below Erred in Concluding

that the Fee Here was Legislative Rather

Than Adjudicative

The Oregon Court of Appeals relied on two erroneous

factors in determining that this case did not involve an

* It may well be, as some have argued, that a fee system is superior

to a physical dedication system ir that it can be more closely tailored to

the impacts of any given development. Carlson & Pollak, Takings on the

Ground: How the Supreme Court’s Takings Jurisprudence Affects Local

Land Use Decisions, 35 U.C. Davis L. Rev. 103, 137-38 (2001). But the

fact that fees might more readily satisfy the Dolan test is no reason to

hold that the Dolan test doesn’t even apply.

8

“adjudication”: The lack of administrative “discretion,” and

the “generally applicable” nature of the underlying law.

Neither factor ought to be relevant.

Discretion - The court found much significance in

the fact that the ordinance makes imposition of the Traffic

Impact Fee “mandatory on ‘all development in the

county,’” Rogers Machinery, 45 P.3d at 980, and that “no

significant discretion is involved in the TIF’s imposition or

calculation.” Jd., at 981. What little discretion the admin-

istrators had, said the court, was not enough to convert

the fee into “the kind of ad hoc adjudicatory decision that

troubled the Court in Dolan.” Id., at 981 n.17.°

It is not clear, however, why the amount of discretion

afforded to administrators has anything to do with

whether a governmental action should be classified as

legislative or adjudicative. By analogy, the United States

Sentencing Guidelines severely limit the discretion af-

forded to trial judges, but this does not mean that criminal

trials are no longer adjudications. The level of discretion

possessed by the adjudicator is simply irrelevant to the

jegislative/adjudicative distinction.’

* See also, e.g., San Remo Hotel, 41 P.3d at 104 (noting that the

administrative body had no “discretion as to the imposition or size” of

an exaction); Krupp, 19 P.3d at 695 (refusing to apply Dolan where the

fee was not “discretionary”); Homebuilders Ass’n v. City of Scottsdale,

902 P.2d 1347, 1351 (Ariz. Ct. App. 1995) (“While Dolan also involved a

city ordinance, the crucial distinction lies in the amount of adjudicative,

staff-level discretion permitted by each ordinance”).

" A further problem is that there is no way to specify just how

much discretion would convert legislation into adjudication. As one

commentator notes, surveys have shown that in roughly a third of all

exactions nationwide, the administrator has some varying level of

(Continued on following page)

9

Generally applicable law - The Oregon court

heavily relied on the fact that the fee is “imposed on broad

classes of property,” Rogers Machinery, 45 P.3d at 980, that

it is “generally applicable,” id., at 981, and that it is

“uniformly applied.” Jd., at 981."

Again, criminal law is generally applicable, but that

does not prevent a criminal trial from being an adjudica-

tion. What characterizes an adjudication is that a pre-

existing law (whether generally applicable or not) has

been applied to a specific individual by a court, commis-

sion, or administrator.

As it now stands, the Oregon Court of Appeals and

other lower courts apparently think that adjudications

exist only where the adjudicator has free-wheeling author-

ity to issue ad hoc decisions unconstrained by anything

other than his own imagination. Such a view is anoma-

lous. In almost all adjudications outside of the common

law context, the adjudicator applies some law or regula-

tion to a specific person. How broadly that law or regula-

tion sweeps, or how much discretion it affords the

adjudicator, are simply irrelevant.

flexibility. Inna Reznik, The Distinction Between Legislative and

Adjudicative Decisions in Dolan v. City of Tigard, 75 N.Y.U. L. Rev. 242,

265 (2000).

* See also, e.g., San Remo Hotel, 41 P.3d at 104 (noting that the

government did not “single out” the plaintiffs); Krupp, 19 P.3d at 698

(refusing to apply Dolan where the fee was not “unique” to the plain-

tiffs).

10

C. The Court Below Erred in Concluding

That Dolan Should Not Apply to Legisla-

tive Enactments

1. No Branch of Government is Exempt

from the Takings Clause

From the earliest cases incorporating the Bill of

Rights against the States, this Court has consistently held

that a state may not avoid constitutional obligations by

acting through one branch of government rather than

another. In the very case that this Court always cites as

incorporating the Takings Clause — Chicago, Burlington &

Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897)" — the

Court stated that the Takings Clause applies “to all the

instrumentalities of the State, to its legislative, executive

and judicial authorities,” and that this “must be so, or, as

we have often said, the constitutional prohibition has no

meaning, and ‘the State has clothed one of its agents with

power to annul or evade it.’” Id., at 233-34 (quoting Ex

Parte Virginia, 100 U.S. 339, 346-47 (1879)); see also Scott

v. McNeal, 154 U.S. 34, 45 (1894) (holding that the Four-

teenth Amendment applies to “all acts of the State,

whether through its legislative, its executive or its judicial

authorities.”).” .

* See, e.g., Dolan, 512 U.S. at 384 n.5 (discussing Court’s reliance

on Chicago for incorporation). Note that an earlier case had apparently

already incorporated the Takings Clause via the Equal Protection

Clause. See Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362, 399

(1894).

” Ironically, the dispute in Chicago was the precise opposite of the

current dispute: On the unquestioned assumption that the Takings

Clause applied to legislative action, the Court had to decide whether

(Continued on following page)

cs rd ‘etme ces —

11

If this were a procedural Due Process case, and the

question were whether Rogers Machinery deserved notice

and opportunity for a hearing, then it would be relevant

whether the government had acted via legislation or

adjudication.’ Unlike the Due Process Clause, however,

the Takings Clause applies regardless of the form of

government action, requiring compensation whenever the

government takes private property for a public purpose.

Thus, all other Takings Clause tests apply with equal

force to legislative action. If a state legislature, for exam-

ple, passes a law requiring that an apartment building

provide space for a cable box, Loretio v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 426 (1982), or that

“denies all economically beneficial or productive use of

land,” Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1015 (1992), or that goes “too far” in regulating land

use, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415

(1922), a compensable taking will have occurred. And if an

administrative agency (acting in a quasi-legislative capac-

ity) establishes confiscatory rates, it too will violate the

Takings Clause. See, e.g., Duquesne Light Co. v. Barasch,

488 U.S. 299, 308 (1989).

In an oft-quoted statement, this Court has said that

the 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

state adjudicative action could violate the Takings Clause as well.

Chicago, 166 U.S. at 236, 241.

" Compare Londoner v. City of Denver, 210 U.S. 373 (1908), with

Bi-Metallic Investment Co. v. State Bd. of Equalization of Colorado, 239

U.S. 441 (1915).

12

public as a whole.” Armstrong v. United States, 364 U.S.

40, 49 (1960).” The mere fact that a particular exaction is

authorized by a statute does not prevent it from imposing

an unfair burden on a given citizen.” As Justice Thomas

has said, “A city council can take property just as well as a

planning commission can.” Parking Ass’n of Georgia, 515

U.S., at 1116 (Thomas, J., joined by O’Connor, J., dissent-

ing from denial of cert.). Cf. Carlson & Pollak, Takings on

the Ground: How the Supreme Court’s Takings Jurispru-

dence Affects Local Land Use Decisions, 35 U.C. Davis L.

Rev. 103, 131 (2001) (noting empirically that developers in

some towns “may face excessive exactions whether or not

the exactions are legislative enacted or applied on an ad

hoc basis”).

“ See also Monongahela Nav. Co. v. United States, 148 U.S. 312,

325 (1893) (stating that the Takings Clause “prevents the public from

loading upon one individual more than his just share of the burdens of

government”).

* As one scholar has said, “it should matter little whether a

particular land-use regulation originates with a legislative or an

adjudicative pronouncement. What counts is whether the legislative

determination has been brought to bear on particular property, either

through the permitting and rezoning process or through initial mapping

and classification.” Kmiec, Private Property and the Future of Govern-

ment Regulation: Inserting the Last Remaining Pieces into the Takings

Puzzle, 38 Wm. & Mary L. Rev. 995, 1041-42 (1997).

* As an Illinois court has observed, a local government may not

“skirt its obligation to pay compensation when taking private property

for public use merely by having the Village Board of Trustees pass an

‘ordinance’ rather than having a planning commission issue a permit.”

Amoco Oil Co., 661 N.E.2d at 389. The government “should not be able

to insulate itself from a takings challenge merely by utilizing a different

bureaucratic vehicle when expropriating its citizen’s property.” Jd., at

390.

13

The Oregon Court of Appeals reasoned, however, that

legislation bears a lower risk of “extortion” than does

adjudication.” Relying on a California case, the court

theorized that generally applicable legislation would not

be likely to result in “extortionate fees for all property

development,” because any such proposal would “face

widespread and well-financed opposition.” Rogers Machin-

ery, 45 P.3d at 982 (quoting San Remo, 41 P.3d at 105). “Ad

hoc individual monetary exactions deserve special judicial

scrutiny mainly because, affecting fewer citizens and

evading systematic assessment, they are more likely to

escape such political controls.” Jd. (quoting San Remo, 41

P.3d at 105). .

But this reasoning is unsupported. For example, in a

densely-built area where most possible development has

already occurred, a legislative exaction might easily place

an unfair burden on the minority of developments that are

“new. Moreover, ad hoc monetary exactions might well be

more fair because they can theoretically be more readily

tailored to the impact of individual developments. Indeed,

the petitioners here would be far better off if the City of

Tigard had used a more ad hoc process that tailored the

traffic feé to the actual level of increased traffic — which is

to say, zero. See Pet. for Cert. at 15-16. And even if broadly-

sweeping legislative enactments are less likely to be extor-

tionate than narrow legislation or seat-of-the-pants adjudi-

cation, that is no reason to abandon judicial scrutiny, where

the application of such a law is extortionate. (Here as

“ In other words, the court appeared to think that the Takings

Clause applies not to takings per se, but only to those governmental

processes that are assumed to be likely to produce takings.

14

elsewhere, it is completely counterintuitive to hold that

where Dolan might be more easily satisfied, it should

therefore not apply at all.)

The applicability of Dolan should not rest on such

unsupported speculation about the political process. As

Justice Thomas has said, “the general applicability of the

ordinance should not be relevant in a takings analysis... .

The distinction between sweeping legislative takings and

particularized administrative takings appears to be a

distinction without a constitutional difference.” Parking

Ass’n of Georgia, 515 U.S., at 1116 (Thomas, J., joined by

O’Connor, J., dissenting from denial of cert.) No other

Takings Clause test applies only to one branch of govern-

ment — and no persuasive reason exists for Dolan to be the

sole exception.

2. The Legislative/Adjudicative Distinc-

tion is Unworkable and Irrelevant.

The line between legislative and adjudicative actions

is notoriously difficult to draw. As the Fifth Circuit has

said, there is no “a priori basis ... for distinguishing

legislative from adjudicative acts.” Shelton v. City of

College Station, 780 F.2d 475, 480 (CA5 1986); see also id.,

at 481 (noting that a “state may choose to make a legisla-

tive decision [regarding zoning] by a process that resem-

bles adjudication... . ”).

A formal approach — looking at the particular govern-

mental body responsible for an exaction — would be com-

pletely unworkable. By long-standing tradition, local

governments do not have to abide by separations of powers

principles. See, e.g., Dreyer v. Illinois, 187 U.S. 71, 83-84

(1902) (“Whether the legislative, executive and judicial

15

powers of a State shall be kept altogether distinct and

separate ... is for the determination of the State.”);

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461

n.6 (1981) (“The states are free to allocate the lawmaking

function to whatever branch of state government they may

choose.”). The result is that “the states enjoy complete

hegemony over local governments.” Briffault, Our Local-

ism: Part I — The Structure of Local Government Law, 90

Colum. L. Rev. 1, 7 (1990).

Most states do not in fact require that local govern-

ments be separated into the traditional three branches.

See, e.g., Hershkoff, State Courts and the ‘Passive Virtues’:

Rethinking the Judicial Function, 114 Harv. L. Rev. 1833,

1884-86 (2001); Reznik, The Distinction Between Legisla-

tive and Adjudicative Decisions in Dolan v. City of Tigard,

75 N.Y.U. L. Rev. 242, 260-61 (2000). As one scholar

observed, “Local government is marked by a profusion of

boards, commissions, and authorities that combine legisla-

tive and executive authority over various governmental

functions.” Briffault, Who Rules at Home?: One Per-

son/One Vote and Local Governments, 60 U. Chi. L. Rev.

339, 348-49 (1993). Similarly, this Court has observed that

local governments usually “cannot easily be classified in

the neat categories favored by civics texts.” Avery v.

Midland County, 390 U.S. 474, 482 (1968).

* Cf. Rose, Planning and Dealing: Piecemeal Land Controls as a

Problem of Local Legitimacy, 71 Cal. L. Rev. 839, 846 (1983) (stating

that “ ‘legislative’ [and] §udicial’ ... rubrics are drawn from a separa-

tion-of-powers doctrine more appropriate to larger governmental

units”).

16

A functional distinction — by which legislation is

generally applicable and forward-looking while adjudica-

tion is particularized and retrospective” — has not proven

any more workable in practice. For example, rezonings —

which may trigger exaction requirements — are prospective

in effect but often particular in application. Thus, the

States have generally disagreed on how to classify such

decisions. Compare Fasano v. Bd. of County Comm’rs, 507

P.2d 23, 26 (Or. 1973) (characterizing a zone amendment

as adjudicative), with Arnel Dev. Co. v. City of Costa Mesa,

620 P.2d 565, 569 (Cal. 1980) (characterizing a zone

amendment as legislative); see also Hansen, Quasi-

Judicial Land-Use Decision Making in New Castle County,

4 Del. L. Rev. 191, 206 (2001) (observing that “courts are

inconsistent, nationwide, in their determinations of which

land-use decisions made by legislative bodies are quasi-

judicial in nature”); Jd. at 205 (noting that courts “sometimes

classify rezonings as legislative and sometimes as quasi-

judicial decisions”).

"’ See United States v. Florida East Coast Railway Co., 410 U.S.

224, 245 (1973); Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226

(1908) (“A judicial inquiry investigates, declares, and enforces liabilities

as they stand on present or past facts and under laws supposed already

to exist.... Legislation on the other hand looks to the future and

changes existing conditions by making a new rule to be applied

thereafter to all or some part of those subject to its power.”).

* Sometimes the same court issues conflicting decisions on this

question. Compare, e.g., Board of County Comm’rs v. Snyder, 627 So.2d

469, 474-75 (Fla. Dist. Ct. App. 1993) (deeming rezoning “quasi-

judicial”), with Board of County Comm’rs v. Karp, 662 So.2d 718, 719-20

(Fla. Dist. Ct. App. 1995) (deeming a rezoning a “legislative” action).

17

In fact, state and federal courts often disagree on how

to characterize a single state’s zoning decisions.” Many

courts resort to the terms “quasi-adjudicative” or “quasi-

legislative.™ The use of such terminology is, in the famous

words of Justice Jackson, “implicit with confession that all

recognized classifications have broken down, and ‘quasi’ is

a smooth cover which we draw over our confusion as we

might use a counterpane to conceal a disordered bed.” FTC

v. Ruberoid Co., 343 U.S. 470, 487-488 (1952) (Jackson, J.,

dissenting).

3. The Dolan Court’s Concerns Are More

Readily Addressed by a Facial/As-

Applied Distinction

The question remains, if a legislative/adjudicative

distinction is unworkable, then what did the Dolan Court

“ Compare FM Properties Operating Co. v. City of Austin, 93 F.3d

167, 174 (CA5 1996) (holding that “land-use decisions” are “quasi-

legislative’ in nature”); Shelton, 780 F.2d at 479 (same), with Town of

Flower Mound, 71 S.W.3d at 35 (specifically rejecting Shelton and holding

that Texas law deems development approval a “quasi-judicial function”).

* See, e.g., New Port Largo, Inc. v. Monroe County, 95 F.3d 1084,

1091 (CA11 1996) (noting that a zoning commission is a “quasi-legislative

body”); Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1360 (CA6 1992)

(“Zoning is a quasi-legislative function.... ”); Smithfield’ Concerned

.Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d 239, 244 (CA1

1990); Landgate, Inc. v. California Coastal Comm’n, 953 P.2d 1188, 1198

(Cal. 1998) (characterizing denial of permit as “quasi-adjudicative”);

County of Lancaster v. Mecklenburg County, 434 S.E.2d 604, 612 (N.C.

1993) (deeming variances, special and conditional use permits, and

appeals of administrative determinations “quasi-adjudicative”).

The 10th Circuit splits the difference, characterizing zoning

decisions as “quasi-legislative or quasi-judicial.” Jacobs, Visconsi &

Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1119 (CA10 1991).

18

mean? Recall that the Court in Dolan distinguished earlier

cases applying a lower brand of scrutiny on the grounds

that they “involved essentially legislative determinations

classifying entire areas of the city, whereas here the city

made an adjudicative decision to condition petitioner’s

application for a building permit on an individual parcel.”

Dolan, 512 U.S. at 385. The Court also reasoned that the

city bore the burden of demonstrating constitutionality

because it had “made an adjudicative decision to condition

petitioner’s applications for’a building permit on an

individual parcel.” Jd., at 391 n.8.

It is not entirely clear, however, what the Dolan Court

actually meant by making the legislative/adjudicative

distinction. As Justice Souter pointed out in his dissent,

“the majority characterizes this case as involving an

. ‘adjudicative decision’ to impose permit conditions, but the

permit conditions were imposed pursuant to Tiyard’s

Community Development Code.” Jd., at 413 n.* (Souter, J.,

dissenting) (citations omitted). In short, whatever the

Court might have meant by referring to an adjudication, it

cannot have meant there was no statute authorizing the

exaction at issue.

A clearer, but parallel, distinction would be the one

between as-applied and -facial challenges. Though this

Court has apparently never addressed the issue, the

holding of United States v. Salerno” — by which facial

challenges must demonstrate that a law is unconstitu-

tional in all circumstances” — applies to the Takings

* 481 U.S. 739 (1987).

* Id., at 745.

19

Clause. See, e.g., Daniels v. Area Plan Comm’n of Allen

County, 306 F.3d 445, 466 (CA7 2001) (applying Salerno to

takings claim); Rent Stabilization Ass’n of City of New

York v. Dinkins, 5 F.3d 591, 595 (CA2 1993) (same). Else-

where, the Court has said that a facial Takings Clause

challenge looks to whether the “mere enactment” of the

regulation has gone too far, see Suitum v. Tahoe Regional

Planning Agency, 520 U.S. 725, 736 n.10 (1997), and that

the court will look only to the law’s “general scope and

dominant features .. . leaving other [specific] provisions to

be dealt with as cases arise directly involving them.”

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 397

(1926).

By all of the above, Dolan is an awkward fit in the

facial challenge context. The Dolan test requires the court

to examine the impact caused by a particular plaintiff’s

development, the impact of the specific fee or dedication,

and then issue a judgment as to whether the two are

“roughly proportional.” By definition, such an inquiry is

far more fact-specific than an attempt to show that all

applications are unconstitutional, much less that “mere

enactment” constitutes a taking.” Thus, the Dolan test

inherently works best for as-applied challenges.

The facial/as-applied distinction has a signal advan-

tage over the legislative/adjudicative distinction: It is easy

to administer. All the court need ask is whether the

* Not that such a showing would be impossible — if a city passed

an exaction ordinance that was sufficiently onerous, it might be

possible to demonstrate that the exaction was not “roughly propor-

tional” to any conceivable development. Such cases, however, would

presumably be rare.

20

plaintiff has personally been subjected to an exaction, or

whether the plaintiff is seeking to challenge the entire

exaction scheme. There is no need to address difficult

questions such as how to classify the commission that

ordered the exaction, or how generally applicable the

exaction might be, etc.

r

Vv

CONCLUSION

This Court has often said that takings claims usually

involve “essentially ad hoc, factual inquiries.” Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 1015

(1992). It may be that how the Takings Clause applies is

unavoidably ad hoc, but it should not be so as to where and

when the Clause applies in the first place. If the Court

declines to provide further guidance, lower courts will be

left to apply an essentially ad hoc test, on an ad hoc basis,

and often looking to whether an exaction was applied in an

ad hoc manner. The Court should put a stop to this

multiplication of ad hocery.

Respectfully Submitted,

TEXAS JUSTICE FOUNDATION

8122 Datapoint, Suite 812

San Antonio, Texas 78229

(210) 614-7157

(210) 614-6656 (Fax)

ALLAN E. PARKER, JR.

Texas State Bar No. 15505500

R. CLAYTON TROTTER

Texas State Bar No. 20240500

STUART BUCK

Virginia State Bar No. 46702 -