Opposition Brief — Grasso v. City of New Bedford

No. 02-1128 mag 32 2005 |

PES Wee

IN THE

Supreme Court of the United States

VINCENT GRASSO, ET AL..,

Petitioners,

V.

CITY OF NEW BEDFORD, ET AL.,

Respondents.

BRIEF OF RESPONDENTS CITY OF NEW BEDFORD AND

COMMONWEALTH OF MASSACHUSETTS IN

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

Arthur J. Caron, Jr. Stephen Dick

Corporation Counsel Assistant Attorney General

Counsel of Record Commonwealth of Massachusetts

Jane Medeiros Friedman Office of the Attorney General

Associate Solicitor Trial Division’

City of New Bedford One Ashburton Place, Roum 2019

Law Department Boston, MA 02108

133 William Street, Room 203 (617) 727-2200 ext. 3433

New Bedford. MA 02740

(508) 979-1460

Dated: March 31, 2003

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QUESTIONS PRESENTED

Whether government actors can be held jointly liable for

using and participating in diverse regulatory proceedings

to keep the value of land down while the government

considers whether to take the land for a secondary

wastewater treatment plant.

Whether it was error under Arlington Heights v.

Metropolitan Housing Corp., 429 U.S. 252 (1977) on

cross motions for summary judgment to fail to consider

direct and substantial evidence of the intent of responsible

City officials to deny an application to change zoning

because it would increase the value of land and otherwise

facilitate the owner’s development and use of same when

the City was considering whether to take the land fora

secondary wastewater treatment plant.

Whether the state statute of limitations for the assertion

of the Fifth Amendment right to compensation for a

taking by regulatory action can be construed in a manner

prohibited by United States v. Dickinson, 331 U.S. 745

(1947) to force landowners to engage in the piecemeal

and premature litigation of potentially unripe claims and

to otherwise unfairly put the burden on the landowner to

determine the precise moment a taking has occurred

during regulatory processes when the taking has been

effected by a continuing series of decisions and actions

taken by diverse government actors in different ongoing

administrative and other proceedings.

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PARTIES TO THE PROCEEDING

The following individuals and entities are parties to the

proceeding in the court below:

Vincent Grasso, Robert P. Regan, Palmers Cover Limited

Partnership, and Old New Bedford, Plaintiffs-Petitioners;

City of New Bedford, Massachusetts Executive Office of

Environmental Affairs, Commonwealth of Massachusetts,

Defendants-Respondents.

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TABLE OF CONTENTS

Page

SPR PEEEe G WAPE Ue BREE BEE? once ss cssesecevncescess i

PARTIES TO THE PROCEEDING ............... ll

SIAL EMENT OF THE CASE ..........cc0ceccceees l

IE piriitiinintatsnnastninmnviavindanivtinnicnmne l

A. THIS COURT HAS PREVIOUSLY

ADDRESSED THE QUESTION OF

COMPENSATION FOR BOTH

PHYSICAL AND REGULATORY

TAKINGS IN PRIOR DECISIONS

AND THERE IS NO BASIS TO SEEK

A WRIT ON THE GROUNDS AS-

SERTED BY THE PETITIONER......... 2

B. PETITIONERS’ RIGHTS GUARAN-

TEED BY THE FIFTH AND FOUR-

TEENTH AMENDMENT WERE NOT

VIOLATED BY THE ACTIONS OF

STATE OR LOCAL OFFICIALS IN

MASSACHIUSET TS...........cscrscceersseenees 5

SAMI Nilinidalsernevkneatndeseiveweseen eens 9

iV

TABLE OF AUTHORITIES

Page

CASES f

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SEF Bas 08 CED waininsctcoeieinnnins 3

Eastlake v. Forest City Enterprises, Inc.,

I RR TIE eiareiiihieseninstsaivhinticlnitinds 6

Euclid v. Ambler Realt :

BEE Sa BF COPE wocininsncinsirinnncdeiunsiiins 6

Fra los v. Ren ntrol Board of idge,

408 Mass. 302 (1990) .................ccseseseeeee 7

Flynn v. Cambridge,

ey CN Tee CEE aiciivanescccecrcremmvens 7,8

Goldblatt v. Hempstead,

BS |: eee a rm 6

Fe Trae EE FD inisiseiicnnthintineastees 6

Grass eal. v. Ci N

55 Mass. App. Ct. 1116 (2002) «0.00.00... 1,4

rasso, et.al. v. Ci w Bedf tal.

No. 92-01987 (Mass.Super., Nov.2, 1998)

Ce FE i FD cicntneiciNccemtneaeeticceenenen 1,3

L v. Brimfi

EF PE, Bk CE seiicssteenrcnscseiarennsnins 7

OTs ee ee em

Vv li tal Council,

Se Raitt: Ce CE ED ieeceeetntincesvemeviioncies pap Oe

F t lo,

OFF UA Pee Cre aksstitisenienntaem 8

Necktow v. Cambridge,

EET Ghee Ce UO TED piccinvictadaidtantnbtasmatnns 6

Palazzolo v. Island,

FOS Ces Ge NED sciatinteininancecenitiecinn 2,6

Penn Central Transportation Co., v. New York City,

SI0 The. BO CIPD nieeooininn 3, 5,6

Ruckelshaus v o Co.,

476 US. 986, 1005 (1984) ........ ee 7

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency,

No. 00-1167, slip op. (U.S. April 23, .....

PD sissiviicssiaeesinsacisticsadlasicabeten citeln reaavaiatones ,

Webbs Fabulous Pharmacies, Inc. v. Beckwith,

MT TO Be Cs secbrdechinsidebrncs sane 7

Welsh v. Swasey,

B58 Us FE EOD tition 6

STATEMENT OF THE CASE

The Respondents state the Petitioners Statement of the Case

fails to accurately describe the facts jointly submitted by the parties

to the State Court in an agreed statement of facts. A more complete

statement of the facts is included in the decisions issued by the trial

judge and the Justices for the Appeals Court. The Respondents rely

on these findings and not the Statement of the Case as outlined by

the Petitioners. See, Grasso, et.al. v. City of New Bedford et.al.,

No. 92-01987 (Mass.Super., Nov.2, 1998) (1998 WL 795052)

included as APPENDIX E to Petition for Writ of Certiorari, at 5la

— 70a. See also,Grasso, et.al. v. City of New Bedford et.al., 55

Mass. App. Ct. 1116 (2002), included as APPENDIX D to Petition

for Writ of Certiorari, at 22a — 33a.

ARGUMENT

The Petitioners assert that the City of New Bedford and _ the

Commonwealth of Massachusetts acted jointly to prevent and/or

delay the Petitioners from obtaining permits or making

improvements which prevented them from increasing the value and

developing their property. See Pet. for Writ of Cert., at 30. For

this “loss,” the Petitioners seek compensation. Petitioners’

groundless argument contends that the State Court has not

addressed the question of whether a City or State is liable for

compensation for a regulatory taking when the governmental entities

would not, by regulation, take action which may have increased the

value of Petitioners’ property. This issue clearly does not warrant

review by the Court, as shown in the opinions from this Court and

the State Courts below. The Respondents respectfully request that

the Petition be denied.

A. THIS COURT HAS PREVIOUSLY ADDRESSED

THE QUESTION OF COMPENSATION FOR

BOTH PHYSICAL AND REGULATORY

TAKINGS IN PRIOR DECISIONS AND THERE IS

NO BASIS TO SEEK A WRIT ON THE GROUNDS

ASSERTED BY THE PETITIONER.

Most recently in Palazzolo v. Rhode Island, 533 U.S. 606

(2001) and Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, No. 00-1167, slip op. (U.S. April 23,

2002), this Court has reviewed the jurisprudence of both physical

and regulatory takings. The Court has made it clear that cases

involving regulatory takings require a case by case analysis. The

categorical rule announced in Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992) states that compensation is required

when the regulations or the actions of the public entity deprives an

owner of “all economically beneficial uses” of his land. /d., at

1019. If a regulation does not deprive an owner of all economic

benefit, then the analysis shifts to that as set out in Penn Central

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

When a taking involves neither a physical invasion, nor a complete

deprivation of use, Federal law has established several interrelated

factors which are to be considered in determining whether a

compensable taking has occurred: “(1) ‘the economic impact of the

regulation on the claimant’; (2) ‘the extent to which the regulation

has interfered with distinct investment-backed expectations’; and (3)

‘the character of the governmental action.’” Connolly v. Pension

Benefit Guar. Corp., 475 U.S. 211, 225 (1986), quoting Penn Cent.

Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). In the

case at bar, the trial judge found there was no physical taking and

neither the City nor the Commonwealth caused any physical injury

to the property. See Grasso, No. 92-01987 (Mass.Super., Nov.2,

1998) (1998 WL 795052) included as APPENDIX E to Petition for

Writ of Certiorari, at 70a.

-~

The Petitioners base their claim for compensation on, “a

continuing barrage of decisions and actions by diverse local and

state actors, all intended to delay his development of his property.”

Pet. for Writ of Cert., at 21. The Petitioners allege that these acts

frustrated and hindered the private development of the property and

prevented it from increasing in market value. Petitioners’ claim for

compensation in these circumstances is contrary to existing law as

expressed by this Court in Palazzolo and Tahoe-Sierra, whose

plaintiffs experienced economic loss or loss to the beneficial use of

their property. In the instant case, the Petitioners sustained no such

losses. The State Court found:

. it is apparent that the parcel

maintained substantial value for

alternative economically viable

uses.” Grasso, 55 Mass. App. Ct.

1116 (2002), included as

APPENDIX D to Petition for Writ

of Certiorari, at 42a.

This is not a case in which the actions of the government

changed the status of the land. Instead, the government simply

maintained the status quo. Petitioners’ claim that the government’s

inaction failed to enhance the value of their property. Petitioners

then attempt to convert this so-called “loss” into compensation

under the Constitution. As the Court stated in Tahoe-Sierra:

A rule that required compensation

for every delay in the use of

property would render routine

government processes prohibitively

expensive or encourage hasty

decisions. Such an important

change in the law should be the

product of legislative rulemaking

rather than adjudication.” Tahoe-

Sierra No. 00-1167, slip op. (U.S.

April 23, 2002) at 31.

B. PETITIONERS’ RIGHTS GUARANTEED BY

THE FIFTH AND FOURTEENTH

AMENDMENT WERE NOT VIOLATED BY

THE ACTIONS OF STATE OR LOCAL

OFFICIALS IN MASSACHUSETTS

Petitioners allege that the City of New Bedford violated the

Fifth and Fourteenth Amendments by failing to re-zone Petitioner’s

property and by the actions of certain City Councilors who publicly

opposed state legislation to change the harbor line. See Pet. for

Writ of Cert., at 13 — 15. Petitioners’ position is inconsistent with

this Court’s holding in Penn Central.

. in instances in which a state tribunal reasonably

concluded that “the health, safety, morals, or general

welfare” would be promoted by prohibiting particular

contemplated uses of land, this Court has upheld land-use

regulations that destroyed or adversely affected recognized

6

real property interests. See Necktow v. Cambridge, 277

U.S. 183, 188 (1928). Zoning laws are, of course, the

classic example, see Euclid v. Ambler Realty Co., 272 U.S.

265 (1926) (prohibition of industrial use); Gorieb v. Fox,

274 U.S. 603, 608 (1927) (requirement that portions of

parcels be left unbuilt); Welsh v. Swasey, 214 U.S. 91

(1909) (height restriction), which have been viewed as

permissible governmental action even when prohibiting

the most beneficial use of the property. See Goldblatt v.

Hempstead, 369 U.S. 590 at 592-593 (1962) and cases

cited; see also Eastlake v. Forest City Enterprises, Inc.,

426 U.S. 668, 674, n. 8 (1976). Penn Cent., 438 U.S. 104,

124 (1978)

The Petitioners’ requested zoning amendment, as well as

their petitions to the state, were

based solely upon Petitioners’ desire to utilize the subject property

in a manner which Petitioners believed to be more financially

lucrative than those uses allowed by legitimate zoning and other

regulatory limitations.

When the Petitioners took title to the subject property in

1986, it was zoned “Industrial “B”. Since Industrial “B” zoning,

which prohibited residential use, had been in place since 1926,

Petitioners had no reasonable investinent-backed expectation to

believe they could obtain permitting for their project without a

zoning change. See Penn Cent., 438 U.S. 104, 124 (1978). See

also Palazzolo, 533 U.S. 606, 617-618 (2001).

“A property owner’s investment-backed expectations must

be reasonable and predicated on existing conditions.” Leonard v.

Brimfield, 423 Mass. 152, 155 (1996) [The plaintiff did not

demonstrate that she had a reasonable investment-backed

expectation that she would have been able to subdivide her property

where she purchased the property subject to the restrictions on

building on a flood plain]. It must be more than a “unilateral

expectation or an abstract need.”__Ruckelshaus v. Monsanto Co.,

476 U.S. 986, 1005 (1984), quoting Webbs Fabulous Pharmacies,

Inc. v. Beckwith, 499 U.S. 155, 161 (1980). Since the Petitioners

purchased the property subject to the restrictions on use in an

“Industrial ‘B’” zone they may not complain about the loss of a

right they never acquired. See Lucas, 505 U.S. 1003, 1027 (1992).

“(T]he government is not required to compensate an individual for

denying him the right to use that which he has never owned.”

Fragopoulos v. Rent Control Board of Cambridge, 408 Mass. 302,

309 (1990) (No taking where plaintiff purchased his property

subject to rent stock preservation ordinance which forbade him from

converting four-unit building to owner-occupied three-unit

building); Flynn v. Cambridge, 383 Mass. 152, 160 (1981) (No

taking where owners purchased condominium apartments after

effective date of ordinance forbidding owner occupation of such

apartments).

Petitioners have offered no proof that the Respondent, as a

matter of law, was required to grant its petition for a zoning change.

“Land use planning is not an all- or- nothing proposition. A

government entity is not required to permit a landowner to develop

property to [the] full extent he might desire or be charged with an

unconstitutional taking of the property.” MacDonald, Sommer &

Frates v. County of Yolo, 477 U.S. 340, 347 (1986).

In the present case, Petitioners never challenged the zoning

classification and never attempted to demonstrate that a City land

use regulation failed to advance a legitimate state interest.

Petitioners rezoning petition was based not on an allegation that the

property had been spot zoned or had no reasonable use as Industrial

B. Petitioners sole basis for their petition for a zoning change was

that Petitioner desired to utilize the subject property for a use that

was not allowed, but which Petitioner believed to be more

financially lucrative than those uses allowed in an Industrial B zone.

Petitioners base their claim on the fact that they were denied a

9

zoning change for which they had no reasonable investment backed

expectation.

CONCLUSION

For the reasons set forth above, Respondent requests that

this petition for writ of certiorari be denied.

Respectfully submitted,

Arthur J. Caron, Jr. Stephen Dick

Corporation Counsel Assistant Attorney General

Counsel of Record Commonwealth of Massachusetts

Jane Medeiros Friedman Office of the Attorney General

Associate Solicitor Trial Division

City of New Bedford One Ashburton Place, Room 2019

Law Department Boston, MA 02108

133 William Street, Room 203 (617) 727-2200 ext. 3433

New Bedford, MA 02740

(508) 979-1460

Dated: March 31, 2003