Petition for Writ of Certiorari — Torromeo v. Town of Fremont, New Hampshire

No.

In The

Supreme Court of the United States

HENRY TORROMEO AND MDR CORPORATION,

Petitioners,

v.

TOWN OF FREMONT, :

Respondent.

On Petition for Wnt Of Certiorari To

The Supreme Court of New Hampshire

PETITION FOR WRIT OF CERTIORARI

DUANE J. DESIDERIO SUMNER F. KALMAN

JON W. LUTHER Counsel of Record

THOMAS J. WARD THEA S. VALVANIS

NATIONAL ASSOCIATION OF 147 MAIN STREET, BOX 988

HOME BUILDERS ~ PLAISTOW, NH 03865

1201 15™ STREET, NW (603) 382-4003

WASHINGTON, D.C. 20005

(202) 266-8200

QUESTIONS PRESENTED

1. Liability for a Fifth Amendment Taking: When a state’s

highest court declares a growth control regulation “invalid

ab initio,” but a town had enforced that illegal regulation in

excess of its police powers against a specific piece of

property, is the town liable to the affected property owner

for a taking because it has failed to “substantially advance

legitimate state interests”? (Agins v. City of Tiburon, 447

U.S. 255, 260 (1980)).

2. Liability for a Fifth Amendment Taking: Alternatively,

when a state’s highest court declares a growth control

regulation “invalid ab initio” but a town had enforced that

regulation against a specific piece of property, should that

illegal municipal conduct be considered under the

“character of government action” factor set forth in Penn

Central Transp. Co. v. City of New York, 438 U.S. 104,

124 (1978), as one element to determine whether the town

is liable for a taking?

3. Remedy for a Fifth Amendment Taking: Does the “self-

executing character” of the Takings Clause compel the

payment of “just compensation” to an aggrieved property

owner for the time period in which a growth control

regulation, declared “invalid ab initio” by a state’s highest

court, was enforced against a specific piece of property?

(First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 315 (1987)).

il

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT

The Petitioners are Henry Torromeo, a sole proprietor,

and MDR Corporation, a small, family-owned business

incorporated in the State of New Hampshire and run by

brothers Mark and Daniel Post, and their father, Russell

Post. MDR Corporation has no parent or subsidiary

corporation. The Petitioners are in the business of

developing and building single-family home sites.

The Respondent is the Town of Fremont, a municipal

corporation in the southeast corner of New Hampshire near

the Massachusetts border.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED .......cccsccsscssccssssssecccssssesccessese

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT ......ccssccscsssccssssssssssssesccssseecccsses ii

TABLE OF AUTHORITIES .......cccccccssscsccssssssseccssseecccsseees V

TABLE OF APPENDICES ........cccssccsssssscssssseseecesssecccsssecs ix

PETITION FOR WRIT OF CERTIORARI ...-cccccccssseeseesss-

OPINIONS BELOW ..u......ccccsssscscssscccsssesssssssesssssecessecessseees

POPP IN on ccscscncvesonsecésossossvvsesarsuspocovssuensonsees

CONSTITUTIONAL PROVISIONS AT ISSUE.............. 1

STATEMENT OF THE CASE...0.cccccccsssecsssssssssssssseccsseceoe 2

A. Petitioners’ Plans to Build 19 New Homes in

Fremont, New Hampshire .................c.ccccceceeeeeee- 3

B. The New Hampshire Courts Decide That the

Growth Control Ordinance is “Invalid, Ab

Initio,” and That the Town Must Issue Building

Permits to the Petitioners ..............ccccccccscseeeeeeeeese 5

C. Petitioners’ Takings Lawsuits in State Court for

EIA RN 8

D. The New Hampshire Supreme Court’s

oan cos slot svensenssonaiturvionnic 10

iv

I. THE NEW HAMPSHIRE SUPREME COURT

HAS SUBVERTED AND IGNORED THIS

COURT’S TEST FOR REGULATORY

TAKINGS LIABILITY........ riiliini eames 11

A. When the Town Exceeded its Police Power, it

Failed to “Substantially Advance” a Legitimate

Public Interest and Became Liable for a

B. Alternatively, the New Hampshire Supreme

Court Should Have Considered the Town’s

Action in Enforcing an Illegal Regulation

Under Penn Central’s Multi-Factor

Test for Takings Liability 0.0.0.0... eee 16

C. The New Hampshire Supreme Court Flatly

Contradicted This Court’s Cases When It Ruled

That Takings Liability Can Be Found Only

Where an Ordinance Is Itself

SI Soiree ccacdececexcesnisonaceeyedantasncens 20

II. THE NEW HAMPSHIRE SUPREME COURT HA

SUBVERTED AND IGNORED THIS COURT’S

DECISIONS THAT JUST COMPENSATION IS

THE SOLE CONSTITUTIONAL REMEDY

Pe Pk eI citininianssntniecoben ca ecmviaeenenaals

II. ©THE LOWER COURTS ARE IN CONFLICT

REGARDING THE RELEVANCE OF INVALID

AND ILLEGAL LAND-USE REGULATION

IN THE TAKINGS CONTEXT..................s0ceseseee 25

Ce a i intisissssndeasencnncisiedalansanenphiemmcieonmaneananiaan 28

S

TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon, 447 U.S. 255 i) 11, 16

Barnes v. Glen Theatre, Inc. 501 U.S. 560 (| 13

Brown v. Legal Found. of Washington, 538 U.S. ---,

2003 WL 1523550 (March 26, ME eicncas 17, 20-21, 23

Burrows v. Keene, 432 A.2d 15 PURE, TOBY) ooccesiveseveevesaes 2

Chicago, B. & O.R. Co. vy. Chicago,

EG SIS. SIO EIBI YY. sevivcessanacssconvesssdvssoistusrassoseessecs cs, l

City of Cuyahoga Falls y. Buckeye Community Hope

Found., 538 U.S. ---, 2003 WL 1477301

I ED, FID ssc cssccinssovssip tepitsiveuenpiotacncinacucas 23

City of Monterey v. Del Monte Dunes,

SO GET COMO) soos sescstesnsidscssevinsarcoedinibeeudaccecs 12

Cumberland Farms, Inc. v. Town of Groton,

719 A.2d 465 (Conn. 1998) oo..eececcccccscscssccsscesecseeseeccccsen. 26

Dolan v. City of Tigard, 512 U.S. 374 CESIFO) ciceneics 11,15

Eberle v. Dane County Bd. Of Adjustment,

S95 N.W.2d T30 (1999) .....ccscccessescrosscsessessesceesossoeesossse... 26

First English Evangelical Church v.

County of Los Angeles 482 U.S. 304 4) an Passim

vi

TABLE OF AUTHORITIES

(continued)

Hawaii Housing Auth. v. Midkiff,

SBT UL. Fee ioninaniniemanmeialainns 14

Hughes v. Washington, 389 U.S. 290 (1967) .........eee 21

J.E.D. Assocs., Inc v. Atkinson, 432 A.2d -12, (N.H. 1981)15

Keystone Bituminous Coal Ass'n v. DeBenedictis,

Ce Ue. SF ITD sitet canennans 11,20

Landgate, Inc. v. California Coastal Comm'n,

953 P.2d 1188 (Cal. 1998), cert. denied,

Fae UE. BAe I emninentiniaanaaeamanaen 27

Loretto v. Teleprompter Manhattan CATV Corp.,

COE UE SEF CPE) tithe 17

Lucas v. South Carolina Coastal Council,

DOS UTS. FE EOF GED hi cisrcthttemneciiennioundees 11,18

Nollan v. California Coastal Comm'n

CEs ae BEF CIEE cstv 13, 14-15, 16

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)...... passim

Penn Central Transp. Co. v. City of New York,

EF Fs BO EGE senncaccotavsevinsoncanscenissacernicinneaie passim

Pennsylvania Coal Co. v. Mahon,

BE EE Fe CUD wicseievisoctnsccectedonieieindiaas eee 15, 28

Pheasant Bridge Corp. v. Township of Warren, 777 A.2d

334 (N.J. 2001), cert. denied, 535 U.S. 1077 (2002) ......28

Vii

TABLE OF AUTHORITIES

(continued)

San Diego Gas & Elec. Co. v.

City of San Diego, 450 U.S. 621 (1981) ....... 13,21, 23, 25

Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, 535 U.S. 302 (2002) .... passim

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 216 F.3d 764 (9" Cir. 2000),

OOF Fy DAO sts FOE CE isiircecsisinacsosdecosncissssvnennssacniacccacs 27

United States vy. Riverside Bayview Homes,

FF WA We SIE eeiciore cesses isvataeicdetad 20

CONSTITUTIONAL AND STATUTORY PROVISIONS

Federal

RPh I I Haass voces cctitarcices hecesds eotastcseecs 1, 20

U.S. Const. amend. XIV ..0.......c.ccccccccccccsccsscsessecesseseseesesee |

oe: |) Se ae Se ae eae l

New Hampshire

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Vill

TABLE OF AUTHORITIES

(continued)

OTHER

BLACK’S LAW DICTIONARY 4 (7" ed. 1999) ....cccscsssesseseeeees 6

John J. Delaney, What Does it Take to Make a “Take”?

A Post-Dolan Look at Evolution of Regulatory Takings

Jurisprudence in the Supreme Court,

BF SR: RE, Fely OF LAUSD ceettieinneiminiiiennannmonnn 11

Opinion of the Justices, 134 A.2d 281 (N.H. 1957) ...... 6-7

www.newhampshire.com/pages/histmarkerseacoast.cfm ......3

www.seacoastonline.com/living/fremont.htm................:0006 3

ix

TABLE OF APPENDICES

. December 13, 2002 Opinion of New Hampshire

Supreme Court, denying takir:gs liability........... App. 1

September 26, 2001 Order of Rockingham Superior

Court, awarding damages to Petitioners............. App. 7

March 19, 2001 Order of Rockingham Superior Court,

on Motion of Reconsideration. ..............cccccc000-. App. 18

. January 17, 2001 Order of Rockingham Superior

Court, on Request for Ruling of Law............... App. 23

October 3, 2000 Order of Rockingham Superior Court,

on Motion for Summary Judgment.................. App. 26

June 26, 2000 Summary A ffirmance of New

Hampshire Supreme Court............cleccccccecsceceees App. 27

. December 27, 1999 Order of Rockingham

Superior Court, declaring Growth Control Ordinance

| ___ en UANN l ne e App. 28

. January 31, 2000 Order of Rockingham Superior Court,

regarding Torromeo Industries’ Vested Lots... App. 32

New Hampshire Constitution, First

PU I I sid cintccrdcccdscsosseuascipvdtcosinedeucnoncs App. 39

New Hampshire Statutes.................... App. 40-App. 44

ES PR, WOME vscicscsexescvesssercessesasesnsersecees App. 40

RSA 674:5, “Authorization” for Capital Improvement

IN deciciiihiel eNilelatbcanlitie cise eat ea, App. 41

RSA 674:22, “Growth Management; Timing of

I sec App. 42

RSA 674:39, “Four Year Exemption” for

APE ND anstisa scalerecstecnss obec sinuitincevisracicieneacniis App. 43

L.

TABLE OF APPENDICES

(continued)

K. Town of Fremont “Growth Management and Innovative

Land Use Control” Ordinance....................0060. App. 45

Notice of Decision of Town of Fremont Planning Board,

“Growth Control and Permit Limitations,”

EEE TRIE App. 52

February 12, 2003 letter from U.S. Supreme Court,

extending time to file Petition for Writ

I iconsciakcdetonibiatcionninenigcloaiptiacscecsnnties App. 55

PETITION FOR WRIT OF CERTIORI

Henry Torromeo and MDR Corporation (“Petitioners”)

respectfully petition this Court for a writ of certiorari to review

the judgment of the Supreme Court of New Hampshire, dated

December 13, 2002. Appendix (“App.”) 1.

OPINIONS BELOW

The opinion of the Supreme Court of New Hampshire is

reported at 813 A.2d 389 (N.H. 2002). (App. 1-6.) Orders of

the New Hampshire Superior Court awarding Petitioners

monetary damages (App. 7—17), and finding liability on the part

of the Town as a matter of law for its land-use decisions (App.

18-25), are not reported.

JURISDICTION

The judgment of the New Hampshire Supreme Court was

entered on December 13, 2002. (App. 1.) On February 12,

2003, Justice Souter extended the time to petition for certiorari

to and including April 14, 2003. (App. 55.) The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Takings Clause of the Fifth Amendment to the United

States Constitution provides: “[NJor shall private property be

taken for public use without just compensation.” It is applicable

to the States through the Fourteenth Amendment,’ which

provides in pertinent part: “[N]or shall any State deprive any

person of life, liberty, or property, without due process of law.”

' See Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001), citing Chicago,

B. & O.R. Co. v. Chicago, 166 U.S. 226 (1897).

Article 12, Part 1 of the New Hampshire Constitution, the

State’s corollary to the Takings Clause, provides in pertinent

part: “But no part of a man’s property shall be taken from him,

or applied to public uses, without his own consent, or that of the

representative body of the people.” (App. 39.) This provision

has been interpreted to require the payment of compensation for

a taking. Burrows v. Keene, 432 A.2d 15, 19 (N.H. 1981).

STATEMENT OF THE CASE

Three points need to be made at the outset. First, the key

fact in this case is that the Town of Fremont, New Hampshire

(the “Town”), has applied and enforced an illegal growth

control ordinance—so declared by the State’s highest court—to

inhibit otherwise legal development of Petitioners’ land.

Second, Petitioners do not dispute that the Town has a

legitimate interest to control growth. However, Petitioners do

contest the constitutionality of the Town’s actions when it

enforced an illegal law against them. Certiorari should be

granted to clarify that a municipality can violate the Takings

Clause when it enforces an illegal land-use law, which a court

declares was invalid from the start, and refuses to provide the

constitutional remedy of “just compensation” promised by the

Fifth Amendment.

Third, the posture of this case is a challenge to government

action applying a land-use regulation to specific parcels of land.

This is not a facial challenge against the constitutionality of an

ordinance. Last term, the Court stated that the specter of

takings liability rises in as-applied cases such as this one. See

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning

Agency, 535 U.S. 302, 334 (2002).

~

A. Petitioners’ Plans to Build 19 New Homes in

Fremont, New Hampshire.

Originally part of Exeter, New Hampshire until it was

incorporated in 1764, the Town of Fremont (the “Town”) was

first named “Poplin” after a prosperous mill town in England.”

In 1854, the Town was re-named in honor of John C. Fremont,

the first presidential candidate of the Republican party, who lost

to Democrat James Buchanan in the 1856 election. Today,

Fremont is a bedroom community of suburban Boston, a quiet

town o f neighborhoods t hat c ontain | arge residential | ots with

homes built from the same hardwood trees sustained since

colonial times.

This case concerns two residential subdivisions in the Town.

Petitioner MDR Corporation owned a 14-lot subdivision known

as "Glidden Hill Estates." Petitioner Henry T orromeo o wned

the last five lots in a 27-lot subdivision known as “Mason’s

Corner.” Both Petitioners desired to build homes on their lots

and then sell the improved parcels. The Fremont Planning

Board had fully reviewed and approved both projects to

accommodate single-family homes.*

? See www.seacoastonline.com/living/fremont.htm (last visited Apr. 8,

2003). Famous for its heavy growth of high quality hardwoods, the English

Crown had reserved the Town’s best trees for ship masts, but the

Townspeople spirited off the remainder of the hardwoods to construct their

homes and barns. Alarmed by the timber harvests, the royal Governor

dispatched a surveyor to inspect the local mill for illegally cut mast trees. In

1734, the Mast Tree Riot took place in the Town, where locals rebelled by

cutting down the tall trees prior to the surveyor’s arrival. The Townspeople

then later returned disguised as Indians and ambushed ten of the surveyor’s

troops. See www.newhampshire.com/pages/histmarkerseacoast.cfm (last

visited Apr. 8, 2003).

’ Navigating the subdivision approval process in New Hampshire is no

small task. In accordance with zoning and subdivision regulations,

Petitioners were obligated to prepare perimeter surveys, evaluate the

In March of 1999, the Town "adopted" the subject Growth

Control Ordinance (the “Ordinance”’), which gave the Planning

Board authority to limit the number of building permits for

residential units. (App. 45-51.) On April 14, 1999, the Fremont

Planning Board acted on this authority by imposing “Growth

Control and Permit Limitations” to restrict the number of

building permits that it would issue to property owners during

the yea: April 14, 1999, through April 13, 2000. (App. 52-53.)*

After the Ordinance’s effective date, the Planning Board

approved the Glidden Hill project and MDR requested six

building permits to construct single-family homes at the site.

The Town applied the Ordinance to MDR’s project, granted

only five permits, and told MDR it would have to wait at least a

year, until April 2000, at the earliest until additional permits for

Glidden Hill could issue. After the Town issued only five

permits, MDR applied for permits on the remaining nine lots to

fully build-out the subdivision, which the Town also denied.

With regard to Mason’s Corner, Torromeo personally

owned the last five remaining house lots in the 27-lot

subdivision. ( He had previously built homes on and sold the

other 22 lots.) This project was recorded with the county and

eligible for building permits as of February 6, 1997—more than

topography of the property, perform high intensity soil surveys, and develop

fully engineered plans showing all roadways and utilities. Additionally,

Petitioners were required to secure various state permits, including dredge

and fill permits, site specific permits, and curb cut permits.

* The Planning Board’s “Growth Control and Permit Limitations”

determined that a maximum of twenty-six (26) permits for residential

construction could be issued throughout the Town, in the year from April

14, 1999 through April 13, 2000. (App. 52, 42.). Once a permit was issued,

a builder had only 30 days to begin construction or else the permit would

lapse. (App. 53, 3B.)

two years before the Town adopted the Ordinance in March

1999. Because plats were recorded prior to the Ordinance,

Mason’s Corner qualified as a vested subdivision and was

"exempt from all subsequent changes [in] zoning

ordinances...for a period of four years....” S ee RSA 6 74:39.

(App. 43.) Nonetheless, when Torromeo applied for building

permits on the five remaining lots in September 1999, the Town

ignored Mason Corner’s vested status and refused to issue the

permits because the maximum number of approvals allowed by

the Ordinance had been granted by that time.

A builder with a building lot, but no building permits, is

denied use of his property. In addition to complying with all

Subdivision requirements, both MDR and Torromeo had built

and paved the roads necessary to accommodate their plans, in

reliance on prior Town and state approvals. See supra n. 3.

Consequently, for roads alone, MDR spent over $225,000 and

Torromeo spent over $775,000 for their respective projects.

With unimproved lots valued at $85,000 each, both MDR and

Torromeo could not build, had nothing of value to sell, and

were not in a financial position to start over in another

community, because their capital was tied up in the Town of

Fremont.

B. The New Hampshire Courts Decide That the

Growth Control Ordinance is “Invalid, Ab Initio,”

and That the Town Must Issue Building Permits to

the Petitioners.

Ordinarily, it would have been acceptable for the Town to

deny Petitioners’ building permits for a period of time. Except

in this case there is a crucial distinction. The Town denied the

permits based on an Ordinance that was ultimately deemed

illegal by the New Hampshire courts, because it lacked the

statutory requirements to support a valid growth control law.

After their respective building permits were denied, MDR

sand Torromeo each filed suits against the Town for injunctive

relief to compel permit issuance. In the MDR suit, New

Hampshire S uperior C ourt Justice Walter M urphy granted the

requested injunction in a decision dated December 27, 1999.

(App. 28-31.) He decided that the permits should have been

issued because the Ordinance was “invalid, ab initio’® for

failure to meet requirements established by the New Hampshire

legislature. (App. 30.) The Town appealed to the New

Hampshire Supreme Court. On June 26, 2000, it summarily

affirmed Justice Murphy’s decision that the Ordinance was

“invalid, ab initio.” (App. 27.)

In a nutshell, the lower courts found the Ordinance illegal

because it was never supported by a validly enacted Capital

Improvement Program (“CIP”), a statutory prerequisite in New

Hampshire for any growth control ordinance. See RSA 674:22

(App. 42.) A CIP contemplates the orderly construction of

infrastructure projects like roads and sewers to control the

timing of growth and to accommodate the community’s

projected needs. Under New Hampshire law, the local

legislative body (known as the “Town Meeting”) may regulate -

growth by authorizing the Planning Board “to prepare and

amend a recommended program of municipal capital

improvement projects o ver a period of at least 6 years.” S ee

RSA 674:5 (App. 41). To fully realize local democratic

processes and foster public input, New Hampshire law directs

that the Planning Board must publish a “warrant article” that

“distinctly state[s]” the “subject matter of all business to be

acted upon at the Town Meeting....”"° RSA 39:2. (App. 40.)

> Or, “[f]rom the beginning.” Black’s Law Dictionary 4 (7" ed. 1999).

° «It has long been the law of [ New Hampshire] t hat the p urpose of [ the

warrant] requirement is to inform the inhabitants of the business upon which

Under New Hampshire law, therefore, the Town was required to

publish a warrant article informing the public that the Planning

Board would be preparing a CIP.

But the Town never published such a warrant providing

notice of the preparation of a CIP. As a result, the Town’s

citizens were deprived of a full and fair opportunity to speak to

the vital issue of how, when, and where their community should

grow. Without a valid CIP, the New Hampshire courts decided

that the Ordinance—which propped the Town’s denial of

Petitioners’ building permits—was “invalid, ab initio” and

never should have been enforced. (App. 27, 30.)’ Accordingly,

on June 26, 2000, the Town issued the nine remaining building

permits to MDR so homes could be built at Glidden Hill.

With regard to Mason’s Corner, while the Town denied the

building permits by color of the illegal Ordinance, Torromeo

never even had to contest the Ordinance’s statutory validity.

His case was simpler because his last five lots were “vested”

under New Hampshire statute, RSA 674:39 (see App. 43), and

by law were exempt from the permit limitations of the

Ordinance. Thus, on January 31, 2000, Superior Court Justice

Richard Galway determined that building permits should issue

for Mason’s Corner. (App. 32-38.) The Town did not appeal

this decision. Ultimately, in February 2000, the Town issued

they are called to act in the meeting, to bring before the town substantially

and intelligently the subject with which it has to deal.” Opinion of the

Justices, 134 A.2d 281, 283 (N.H. 1957) (citations omitted).

: Superior Court Judge Murphy rejected the Town’s position that, at the end

of its March 11, 1987 Town Meeting, a motion was made to appoint a

committee to study the development of a future CIP. The motion was made

after the Town Meeting had already considered 43 other published warrant

articles under other business. But not a single pre-published warrant

notified the public that a CIP would be addressed. (App. 30.)

the five permits enabling Torromeo to build the last homes at

Mason’s Corner.

C. Petitioners’ Takings Lawsuits in State Court for

Compensation.

Neither Torromeo’s nor MDR’s odyssey in the New

Hampshire courts was over yet. Although permits were

eventually issued to them, they had received no economic

damages for the losses they sustained while the Town applied

the illegal Ordinance to their respective properties. To obtain

the remedy of “just compensation” t hat t he F ifth A mendment

makes available, Torromeo and MDR each filed actions in

Rockingham County Superior Court for a taking under the U.S.

and (New Hampshire) Constitutions.

At the start of the takings phase of their suits, MDR and

Torromeo filed motions for summary judgment on the issue of

liability. On October 3, 2000, the trial court initially denied the

motions in a one-sentence order. (App. 26.) The trial court

apparently accepted the Town’s argument that the Ordinance

was “merely” defective procedurally and the law itself needed

to be “unconstitutional” before a taking would arise.

MDR and Torromeo then filed a "Request for Ruling of

Law,"® arguing that the Town's refusal to issue building permits

in reliance on the “invalid, ab initio” Ordinance was in and of

itself an unconstitutional taking. On January 17, 2001, Superior

Court Justice Kenneth McHugh reversed himself. He now

believed that an award of damages was appropriate and

Petitioners did “not have to prove the Ordinance is

unconstitutional” to recover monetary relief. (App. 24.)

* This procedure is allowed by New Hampshire S uperior C ourt Rule 1 41

(parties may request “interlocutory orders...relative to proceedings

preparatory for a hearing on the merits”).

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The Town then filed a motion for reconsideration because

the trial court's January 17, 2001, order was inconsistent with its

previous ruling denying liability on Summary judgment. On

March 19, 2001, the Superior Court formally joined the

Torromeo and MDR takings actions, and found in hindsight that

it should have initially granted Petitioners’ motions for

summary judgment. (App. 21.) It ruled that Petitioners were

“entitled as a matter of law to recover damages for economic

loss due to the Town's attempted enforcement of its invalid

Growth Control Ordinance. In this Court’s view those

economic losses are compensable whether or not a ‘taking’ has

occurred under existing case law.” (App. 20-21.) Thus,

although the Superior Court hesitated to expressly hinge its

finding of liability on the constitutional theory of a taking, it

nonetheless found that the Town owed Petitioners damages for

the time period in which the invalid Ordinance was enforced to

deny issuance of the building permits.

A trial on damages came next. On September 26, 2001,

Superior Court Justice Gillian Abramson found and ruled that

Torromeo was entitled to the Carrying costs and fair market

rental value for his five unbuildable vested lots from August 26,

1999, through February 2000.° (App. 11.) Thus, the court

ordered the Town to compensate Torromeo in the amount of

$23,800. (App. 15.) With regard to MDR, the court found

damages were due for the nine lots at Glidden Hill from August

26, 1999, through June 2000."° (App. 11.) Compensation for

MDR was thus ordered in the amount of $71,600. (App. 15.)

4 August 26, 1999 was the date that building permits were no longer

available under the invalid Ordinance. February 2000 was the date that

building permits were again issued for Mason’s Corner. (App. 11-12.)

” August 26, 1999 was the date that building permits were no longer

available under the invalid Ordinance. June 2000 was the date that building

permits were again issued for Glidden Hill. (App. 11-12.)

10

D. The New Hampshire Supreme Court’s Decision.

The Town appealed to the New Hampshire Supreme Court.

It reversed. (App. 1-6.) It decided that the Town was not liable

to either Torromeo or MDR for damages. The New Hampshire

Supreme Court thought “the trial court erred in failing to

distinguish between an ordinance that is unconstitutional and

one that is merely unenforceable due to a procedural defect in

its enactment.” (App. 4-5.) A summary of its ruling follows:

e Just Compensation Js Due only when a court

“determin[es] that the ordinance is unconstitutional and

constitutes a taking....” (App. 6.) In other words, the

regulation itself must be deemed unconstitutional to

support a finding of takings liability. (But this Court

has uniformly rejected the notion that a taking occurs

in the context of facial challenges against regulations.

See infra at p. 20.)

e Just Compensation Is Not Due from “an erroneous

planning board decision based upon an otherwise valid

regulation.” (App. 5.) (But this Court has repeatedly

held that takings liability arises precisely where

enforcement of valid laws go “too far.” See infra at pp.

20-21.) The New Hampshire Supreme Court thought this

case presented a situation of “mere[ ]... municipal

error.” (App. 6.) (But this Court has never stated that

enforcement of a judicially invalidated law can be

dismissed as a “mere” error. See infra at p. 21.)

Accordingly, “judicial reversal of the erroneous action is

the only remedy.” (App. 6.) (But this Court has made

clear that just compensation is the only remedy to

redress a taking, and it must be paid to cover losses

1]

during the time that an invalid regulation is applied to

particular property owners. See infra at pp. 22-25.)

This Petition followed.

REASONS FOR GRANTING THE WRIT

I. THE NEW HAMPSHIRE SUPREME COURT HAS

SUBVERTED AND IGNORED THIS COURT’S TEST

FOR REGULATORY TAKINGS LIABILITY.

Liability for a regulatory taking arises under two distinct

modes of analysis: where the regulation (1) fails to

“substantially advance legitimate state interests” or (2) “denies

an Owner economically viable use of his land.” Agins v. City of

Tiburon, 447 U.S. 255, 260 ( 1980). See also Dolan v. City of

Tigard, 512 U.S. 374, 385 (1994); Lucas v. South Carolina

Coastal Council, 505 USS. 1003, 1016 (1992); Keystone

Bituminous Coal Ass'n vy. DeBenedictis, 480 U.S. 470, 485

(1987). The Agins test is disjunctive. Government is liable for

a taking where regulation either fails to substantialiy advance a

legitimate state interest or deprives the owner of economically

viable land use. See, e.g., John J. Delaney, What Does it Take

to Make a “Take”? A Post-Dolan Look at Evolution of

Regulatory Takings Jurisprudence in the Supreme Court, 27

Urb. Law. 55, 58 (1995).

Certiorari should be granted because the New Hampshire

Supreme Court misapplied both prongs of the Agins test. When

the Town enforced the invalid Ordinance it exceeded the scope

of its police power, and thus did not “substantially advance” any

legitimate government interest (failing Agins Prong 1).

Alternatively, enforcement of the invalid Ordinance must at

least be one factor that the court below should have considered

to decide if Petitioners were deprived of economically viable

use of their land (under Agins Prong 2). Either way, this

12

Court’s tests for takings liability have been subverted and

ignored.

A. When the Town Exceeded its Police Power, it

Failed to “Substantially Advance” a Legitimate

Public Interest and Became Liable for a Taking.

The Court has recognized that its cases to date have only

directly addressed the “substantial advancement” prong in the

“context of required dedications or exactions” attached as

conditions to permit approvals. See City of Monterey v. Del

Monte Dunes, 526 U.S. 687, 704 (1999). Last term, the Court

invited the opportunity to consider the “substantial

advancement” prong in a case like this, concerning permit

denials. In Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, 535 U.S. 302 (2002), the Court

declined to hold that moratoria stopping development for 32

months amounted to a per se taking in a facial challenge against

the regulations. However, Justice Stevens’ majority opinion

stressed that “[c]onsiderations of ‘fairness and justice’ ” could

have supported a finding that the “moratoria were takings based

on any of seven different theories.” /d. at 333. The “[s]ixth” of

these theories was that “petitioners might have argued that the

moratoria did not substantially advance a legitimate state

interest, see Agins and Monterey.”"' Id. at 334. The sixth

theory from Yahoe-Sierra is the precise situation presented

here.’ This Petition allows the Court to assess the “substantial

'' In Monterey, the Court found that whether a city’s decision to deny a

development plan “substantially advances legitimate public interests within

the meaning of our regulatory takings doctrine...is probably best understood

as a mixed question of fact and law,” and was thus an appropriate jury

question. 526 U.S. at 721.

2 An independent basis upon which to grant this Petition is to clarify the

“seventh” theory identified in Tahoe-Sierra, namely, whether application of

a regulation restricting growth is a taking under the ad hoc balancing test of

;

;

1B

advancement” test when a regulatory body denies development

permits through invalid exercise of its police powers. '%

Under Agins prong 1, this Court’s “cases describe the

condition for abridgment of property rights through the police

power as a ‘substantial advanc[ing]’ of a legitimate state

interest.” Nollan y. California Coastal Comm'n, 483 U.S. 825,

841 (1987) (emphasis in original). The Court is “inclined to be

particularly careful about the [‘substantial’] adjective” when

there is a “heightened risk” that the land-use restriction fails to

further “the stated police-power objective.” Jd. In Justice

Brennan’s plurality dissent from San Diego Gas & Electric

Company, he also drew the connection between a sovereign’s

police power and the Takings Clause. He declared that the

California courts “flatly contradict[ed] clear precedents of this

Court” when they held that “a city’s exercise of its police

power, however arbitrary or excessive, cannot as a matter of

law constitute a ‘taking’ within the meaning of the Fifth

Amendment.” San Diego Gas & Elec. Co. vy. City of San Diego,

450 U.S. 621, 647 (1981) (Brennan, J., dissenting). And Justice

O’Connor has explained that “[t]he first question” in a takings

analysis is whether “application of a regulation constitutes a

valid exercise of the police power.” Palazzolo v. Rhode Island,

533 U.S. 606, 636 (2001) (O’Connor, J., concurring).

Here, the g overnmentai action at issue fails e ven this first

question. When the Town enforced the illegal Ordinance it

exceeded the scope of its police powers. Thus, the Town’s

conduct was not “coterminous” with the Takings Clause and it

Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). See

Tahoe-Sierra, 534 U.S. at 334. Infra at pp. 16-20.

'? “The traditional police power of the States is defined as the authority to

provide for the public health, safety, and morals [of the people] ....” Barnes

v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991).

14

became liable to pay just compensation when it blocked

development on Petitioners’ land. See Hawaii Housing Auth. v.

Midkiff, 467 U.S. 229, 240 (1984) (“the ‘public use’

requirement is ... coterminous with the scope of a sovereign’s

police powers”).

Admittedly, the Town has a legitimate interest to administer

the pace of growth within its borders. But that interest was not

advanced, “substantially” or otherwise, when the Town applied

the illegal Ordinance to deny Petitioners’ building permits.

How could the Town further its land-use planning goals by

engaging in illegal conduct? Indeed, after the New Hampshire

Supreme Court affirmed that the Ordinance was “invalid, ab

initio,” Petitioners obtained their permits and _ building

proceeded. For a fact, none of the “Purposes” or “Findings”

that propped-up the Ordinance (App. 45-46) were advanced in

this case at all.

Nollan is a leading case that explores the “substantial

advancement” prong. There, the landowners wanted to expand

a beachfront bungalow. The California Coastal Commission

approved expansion on the condition that the owners grant a

permanent easement providing the public with lateral access

across their beachfront lot. The Court decided that the

California regulators were liable for a taking because there was

no “essential nexus” between the demanded easement condition

for lateral access, and the government’s stated justification to

provide the public with visual access to see the beach from the

highway behind the Nollans’ home. Nollan, 483 U.S. at 837.

As the Court wrote:

Whatever may be the outer limits of “legitimate state

interests” in the takings and land-use context, this is not

one of them. In short, unless the permit condition serves

the same governmental purpose as the development ban,

15

the building restriction is not a valid regulation of land-

use but “an out and out plan of extortion.”

Id. at 837 (citing J.E.D. Assocs., Inc. v. Atkinson, 432 A.2d 12,

14-15 (N.H. 1981).

Under Nollan, the T own of Fremont’s i mproper refusal to

issue building permits in reliance on the illegal Ordinance

“utterly fail[ed] to further the end advanced as the justification

for the prohibition.” Nollan, 483 U.S. at 837. The Town’s

otherwise valid purpose was “completely set adrift from its

constitutional moorings” when it purported to achieve its

growth planning objectives under the guise of an illegal law.

See Dolan v. City of Tigard, 512 U.S. 374, 387 (1994). Plainly,

the Takings Clause does not permit government to

“leverag[e]...the police power” in this manner. Nollan, 483

U.S. at 837 n.5.

The consequences of rejecting takings liability where

government surpasses the already-broad latitude of its police

power would be unfortunate. If the decision below stands,

government can knowingly or negligently avoid takings liability

by enacting growth control laws. that exceed legislative

authority, derogate public notice requirements, or disregard

mandated statutory procedures. Gaming the municipal system

in this regard must be discouraged. It “would create a perverse

system of incentives” to find that g overnment c ould be | iable

for a taking when it enforces valid laws, but is immune from

takings liability in the face of regulatory subterfuge that enacts

growth control laws which purposefully defy legal

requirements. See Tahoe-Sierra, 535 U.S. at 340. Or, if a

taking can arise when application of a valid land use regulation

“goes too far,” see Pennsylvania Coal Co. y. Mahon, 260 U.S.

393, 415 (1922), then application of a land-use regulation that

16

was never valid goes even further beyond constitutional

parameters.

“The State may not... secure a windfall for itself’ by

avoiding the Fifth Amendment’s just compensation remedy

when it acts outside the scope of its police powers. Palazzolo,

533 U.S. at 627. Accordingly, the Court’s review is warranted

to address the Town’s liability under the Agins “substantial

advancement” prong.

B. Alternatively, the New Hampshire Supreme Court

Should Have Considered the Town’s Action in

Enforcing an Illegal Regulation Under Penn

Central’s Multi-Factor Test for Takings Liability.

Certiorari should also be granted to address the Town’s

takings liability under prong 2 of the Agins test, where

regulation “denies an owner of economically viable use of his

land.” Agins, 447 U.S. at 260. In this regard, the New

Hampshire Supreme Court’s decision conflicts with Tahoe-

Sierra, Palazzolo, and Penn Central.

A motif connects the “more recent vintage” of this Court’s

regulatory takings jurisprudence; it is “characterized by

‘essentially ad hoc, factual inquiries,’ Penn Central, 438 U.S. at

124, ... designed to allow ‘careful examination and weighing of

all the relevant circumstances.’ Palazzolo, 533 U.S. at 636

(O’Connor, J., concurring).” Tahoe-Sierra, 535 U.S. at 322.

Justice O’Connor stated the Court’s favored position in her

Palazzolo concurrence:

17 7

We have eschewed “any ‘set formula’ for determining

when ‘justice and fairness’ require that economic

injuries caused by public action be compensated by the

government, rather than remain disproportionately

concentrated on a _ few persons”....The outcome

“depends largely ‘upon the particular circumstances [in

that] case.’ ”

* * *

Our polestar ... remains the Principles set forth in Penn

Central itself and our other cases that govern partial

regulatory takings.

Palazzolo, 533 U.S. at 633 (O’Connor, J., concurring) (citing,

inter alia, Penn Central, 438 U.S. at 124)."* Just last month the

Court confirmed Penn Central’s prominence in Brown vy. Legal

Found. of Washington, 538 US. ---, 2003 WL 1523550 (March

26, 2003).

Penn Central established three factors to determine

regulatory takings liability where, as here, the government

denies land-use permits and thereby deprives the owner

economically viable use of property. These factors are: (1) the

economic impact of the regulation; (2) the extent to which the

regulation interferes with distinct investment-backed

expectations; and (3) the character of the governmental action.

Penn Central, 438 U.S. at 124. "5 These factors make clear that

'* Justice O’Connor’s concurrence was cited with favor by Palazzolo

dissenting Justices Ginsburg, Souter, and Breyer (533 U.S. at 654 n.3), and

by Justice Stevens’ majority opinion in Tahoe-Sierra, 535 U.S. at 327 n. 23.

'S The Court has identified only two circumstances where Penn Central

balancing is not appropriate and a per se, categorical taking arises: where

government commits a physical invasion of property (see Loretto y.

Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)), and where

land-use regulation totally deprives any economically viable use of the

18

“[t]he purposes served, as well as the effects produced, by a

particular regulation inform the takings analysis.” Palazzolo,

533 U.S. at 634 (O’Connor, J., concurring (emphasis supplied)).

This case emphasizes the third factor, the “character of the

governmental action.” Petitioners submit that action taken by

the Town outside of its police powers, when it applied the

illegal Ordinance to deny the building permits, is at least a fact

that the New Hampshire Supreme Court should have considered

under a Penn Central analysis. But the New Hampshire

Supreme Court declared that enforcing an illegal law is

“merely” a “municipal error” that is never relevant to determine

takings liability, and that only laws held to be

“unconstitutional” can involve a takings analysis. (App. 6.)

This analysis by the New Hampshire Supreme Court cannot

be squared with Palazzolo. There, the property owner asserted

that the state committed a taking when it applied wetlands

regulations to restrict development. The Rhode Island Supreme

Court rejected the takings claim, stating that the property owner

lacked “reasonable investment-backed expectations” because he

acquired title after the regulations were enacted. This Court,

however, held that “[t]he State may not put so potent a

Hobbesian stick into the Lockean bundle.” /alazzolo, 533 US.

at 627. It rejected the state’s “sweeping rule” (id. at 626), that a

takings claim is barred by “the mere fact that title was acquired

after the effective date of the state-imposed restriction.” Jd. at

630. The Court thus remanded back to the Rhode Island

Supreme Court with instructions to conduct a Penn Central

analysis to determine if the State committed a taking. Jd. at

632. Justice O’Connor concurred, stating that “interference

with investment-backed expectations is one of a number of

property (see Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992)).

19

factors that a court must examine.” /d at 633 (O’Connor, J.,

concurring). She stressed that “it would be just as much error to

expunge this consideration from the takings inquiry as it would

be to accord it exclusive significance.” Jd.

So too, here. It was error for the New Hampshire Supreme

Court to “expunge” the character of the Town’s action from the

takings analysis. It should have considered the Town’s

enforcement of the illegal Ordinance as one element under the

Penn Central inquiry.

In Tahoe-Sierra, this Court also rejected a per se argument

that a moratoria stopping all development for a temporary

period of time (there, 32 months) must always result in a taking.

The Court explained its view that “the answer to the abstract

question whether a temporary moratorium effects a taking is

neither “yes, always’ nor ‘no, never’; the answer depends upon

the particular circumstances of the case.” Tahoe-Sierra, 535

U.S. at 321. Because the “temporary nature of a land-use

restriction...should not be given exclusive significance one way

or the other,” (id. at 337), the Court refused to find takings

liability in a facial challenge to the ordinances. This result

cannot be reconciled with the New Hampshire Supreme Court’s

ruling, which requires that an ordinance itself must be

“unconstitutional and constitute[s] a taking.” (App. 6.) This

Court also made clear that the property owners in Tahoe-Sierra

“might have prevailed under a Penn Central analysis” if they

“had challenged the application of the moratoria to their

individual parcels” (id. at 334)—the exact analysis that the

New Hampshire Supreme Court failed to conduct. The decision

below contradicts Tahoe-Sierra from every angle.

Palazzolo and Tahoe-Sierra reject “[t]he temptation to adopt

what amount to per se rules in either direction .... Palazzolo,

533 U.S. at 636. Because the New Hampshire Supreme Court

20

could not resist that temptation, certiorari should be granted so

this Court can ensure that the enforcement of an illegal

regulation is a fact that is appropriately weighed in the takings

analysis.

C. The New Hampshire Supreme Court Flatly

Contradicted This Court’s Cases When it Ruled

That Takings Liability can be Found Only Where

an Ordinance is Itself Unconstitutional.

The New Hampshire Supreme Court believed that the Town

could not be liable to pay just compensation “[a]bsent a

determination that the ordinance is unconstitutional and

constitutes a taking....” (App. 6.) It was wrong. This Court

has never hinged takings liability on the unconstitutionality of a

regulation itself. In Tahoe-Sierra, the Court rejected a facial

challenge to the moratoria at issue and recognized that the

property owners faced a steep “uphill battle” in arguing that

“the mere enactment” of a law is per se unconstitutional. Tahoe

Sierra, 535 U.S. at 320 (citing Keystone Bituminous Coal Ass’n

v. DeBenedictis, 480 U.S. 470, 495 (1987)). See also United

States v. Riverside Bayview Homes, 474 U.S. 121, 126 (1985)

(“the mere assertion of regulatory jurisdiction” under the Clean

Water Act Section 404 permit program “does not constitute a

regulatory taking”).

The New Hampshire Supreme Court also turned the Fifth

Amendment on its head when it stated that takings liability

could not arise from a land-use decision based on “an otherwise

valid regulation.” (App. 5.) But the text of the Fifth

Amendment itself expressly contemplates takings for a valid

“public use.” U.S. Const. Amend. V. Last month, Justice

Stevens wrote for a unanimous Court that one of the

“conditions” imposed by the Fifth Amendment is that a taking

must be for “public use.” Brown vy. Legal Found. of

=

21

Washington, 538 U.S. ---, 2003 WL 1523550 (March 26,

2003).'° Accordingly, takings liability indeed arises where the

government enforces a valid law to achieve a legitimate public

purpose. '’ The Constitution is infringed when such a valid law

goes “too far” in its application and the property owners, as

here, are not compensated.

In First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 322 (1987), the Court stated that a

taking must be distinguished from “normal delays in obtaining

building permits, changes in zoning ordinances, variances, and

the like.” Jd. at 322. Of course, “normal” delays typically arise

in the course of the land-use approval process, where valid laws

are legally enforced. It abuses this Court’s regulatory

jurisprudence to find that application of a judicially invalidated

law is a “normal” delay.

In the end, “[f]rom the property owner’s point of view, it

may matter little whether his land” is rendered unusable by an

unconstitutional law or one that is merely illegal on some other

ground. See San Diego Gas & Elec. Co. v. City of San Diego,

450 US. 621, 652 (Brennan, J., dissenting). “{T]he

Constitution measures a taking of property not by what a State

Says, or by what it intends, but by what it does.” Hughes v.

Washington, 389 U.S. 290, 298 (1967) (Stewart, J., concurring)

When the T own applied the i llegal Ordinance, this was not a

mere “error” to be sloughed-off.

'® The second “ condition” is that “just c ompensation must be paid to the

landowner.” Brown vy. Legal Found. of Washington, 538 U.S. ---, 2003 WL

1523550 (2003). See infra at pp. 22-23.

'” See, €.g., Tahoe-Sierra, 535 U.S. at 333-34 (valid laws enforced to protect

Lake Tahoe could lead to a taking); Palazzolo, 533 U.S. at 632

(enforcement of valid wetlands protection law could render state liable for a

taking); Lucas, 505 U.S. at 1003 (state liable for a taking in enforcing valid

beachfront management law).

22

* * *

To conclude, certiorari should be granted because this

Court’s line of takings cases were rejected when the court

below:

e Failed to consider Agins Prong 1, insofar as the Town’s

application of an illegal law failed to substantially

advance a legitimate state interest;

e Failed to balance the Town’s illegal conduct as a

relevant factor under the Penn Central test; and

e Failed to follow this Court’s holdings that a law itself

does not need to be “unconstitutional” to support a

finding of liability under the Takings Clause.

Il. THE NEW HAMPSHIRE SUPREME COURT HAS

SUBVERTED AND IGNORED THIS COURT’S

DECISIONS THAT JUST COMPENSATION IS THE

SOLE CONSTITUTIONAL REMEDY FOR A TAKING.

As explained in Part I, certiorari should be granted so the

Court can address the “logically prior question whether

[application of] the temporary regulation at issue had in fact

constituted a taking.” Tahoe-Sierra, 535 U.S. at 328. After

addressing the antecedent question of the Town’s takings

liability, certiorari should be granted so this Court can correct

the New Hampshire S upreme C ourt’s erroneous ruling on the

remedy for a taking.

Of all the fundamental protections set forth in the Bill of

Rights, the Takings Clause is unique. When it is infringed, it is

the only clause that requires the payment of a monetary remedy

— “just compensation” — to an aggrieved citizen. “Consideration

of the compensation question must begin with direct reference

to the language of the Fifth Amendment, which provides in

relevant part that ‘private property [shall not] be taken for pub-

lic use, without just compensation.’” First English, 482 U.S. at

23

314. Thus, an award of compensation is triggered not because

(or until) a regulation is declared unconstitutional, but rather

because of the “self-executing character of the constitutional

provision with respect to compensation.” Jd. at 316 (citations

omitted). Where the government’s activities have already

worked a taking, “no subsequent action by the government can

relieve it of the duty to provide compensation for the period of

time during which the taking was effective.” /d. at 321. Justice

Brennan believed the mandate for compensation was evident:

The Constitutional rule | propose requires that, once a

court finds that a police power regulation has effected a

‘taking,’ the government entity must pay just

compensation for the period commencing on the date the

regulation first affected the ‘taking,’ and ending on the

date the government entity chooses to rescind or

otherwise amend the regulation.

San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 636

(1981) (Brennan, J. dissenting), endorsed in First English, 482

U.S. at 315, 318, 321. The vitality of this rule could not be

stronger. Last month, the Justices twice re-confirmed that just

compensation is the sole remedy for a taking. Brown v. Legal

Found. of Washington, 538 U.S. ---, 2003 WL 1523550 (March

26, 2003); City of Cuyahoga Falls v. Buckeye Community Hope

Found., 2003 WL 1477301 (March 25, 2003) (Scalia, J.,

concurring).

The New Hampshire Supreme Court defied these

pronouncements when it decided that delayed issuance of

“erroneously-denied” building permits was Petitioner’s only

remedy. (App. 6.) Judicial reversal of the erroneous regulatory

action is not the remedy countenanced by the Fifth Amendment;

the sole available constitutional remedy is the award of just

compensation. The court below was also wrong in thinking that

24

compensation is triggered only in cases where “an ordinance is

unconstitutional.” (App. 6.) First English dispensed with this

contention: “[I]t would require a considerable extension of [the

Court’s decisions] to say that no compensable regulatory taking

may occur until a challenged ordinance has ultimately been held

invalid.” 482 U.S. at 320.

In short, no additional finding of the Ordinance’s

“unconstitutionality” was necessary, or warranted, to justify the

payment of compensation. Particularly instructive is this

Court’s admonition in First English:

We realize that even our present holding will

undoubtedly lessen to some extent the freedom and

flexibility of land-use planners and governing bodies

of municipal corporations when enacting land use

regulations. But such consequences necessarily flow

from any decision upholding a claim of a

constitutional right; many of the provisions of the

Constitution are designed to limit the flexibility and

freedom of governmental authorities, and the Just

Compensation Clause of the Fifth Amendment is one

of them. (482 US. at 321.)

It warrants further emphasis that the Town’s actions here

were not a "mere[ ]...type of municipal error.” (App. 6.)

Fremont’s growth control Ordinance was never legal. If the

payment of just compensation is triggered for even “proper”

interference amounting to a taking, government should not be

allowed to avoid the compensatory remedy where its

interference is “invalid, ab initio.”

25

Finally, it does not matter if the taking is “temporary” or

“permanent,”’* the Fifth Amendment compels one remedy: just

compensation.'? “ [T]emporary takings ... are not different in

kind from permanent takings, for which the Constitution Clearly

requires compensation.” First English, 482 U.S. at 318

(citations omitted). Here, because the New Hampshire courts

invalidated the growth control Ordinance, Petitioners have

sustained a temporary taking. Thus, First English directs that

Petitioners must be compensated for the time during which the

invalid regulation was in effect.

In the end, certiorari should be granted because the New

Hampshire Supreme Court ignored the text of the Takings

Clause itself and disregarded the constitutional rule of First

English.

it. THE LOWER COURTS ARE IN CONFLICT

REGARDING THE RELEVANCE OF INVALID AND

ILLEGAL LAND-USE REGULATION IN THE

TAKINGS CONTEXT.

As if clear disregard for this Court’s takings jurisprudence

were not enough, certiorari should be granted because the lower

'* The Court has stated that a “temporary” taking arises in the situation

where the offending regulation is invalidated or otherwise removed. See

First English, 482 U.S. at 310 (“‘temporary’ regulatory takings [are] those

regulatory takings which are ultimately invalidated by the courts”). Implicit

in this statement is that a permanent taking results where an otherwise valid

ordinance remains in place but “goes too fay.” The practical difference

between a temporary arid permanent taking only pertains to the “the proper

measure of the monetary relief’ owed to the property owners.” /d., 482 U.S.

at 318 (citations omitted). But whether the taking is temporary or

permanent, some amount of compensation would always be due.

See San Diego Gas, 450 U.S. at 657 (Brennan, J., d issenting) (takings

need not be “permanent and irrevocable”).

26

courts are in a state of confusion. Their opinions clash

regarding whether illegal government land-use decisions should

be factored in the equation to determine takings liability and

remedy. This Court’s review is needed to resolve the conflict.

Takings Liability Where Invalid Regulation is in Effect:

The highest courts in Connecticut, Wisconsin, and the U.S.

Court of Appeals for the Ninth Circuit, have all decided that just

compensation is the appropriate remedy for the time period

during which property is subject to invalid regulation:

e In Cumberland Farms, Inc. v. Town of Groton, 719 A.2d

465 (Conn. 1998), the town improperly denied a variance.

Notwithstanding that the property owners retained some use

of the service station on their property, the Connecticut

Supreme Court held that they could pursue compensation

for a temporary taking during the time that it took to litigate

the invalidity of the town’s denial. The court expressly

noted that the town’s argument was “contrary to the holding

of First English....” 719 A.2d at 474.

e In Eberle v. Dane County Bd. of Adjustment, 595 N.W.2d

730 (Wis. 1999), the county denied an access permit. The

Wisconsin Supreme Court held that the owners could pursue

compensation for a temporary t aking, n otwithstanding t hat

they regained full use of their property when that court

eventually overturned the permit denial. The court

expressly concluded that the county’s argument against

compensation was contrary to First English. 595 N.W.2d at

738.

*° The Eberle dissent urged adoption of the position taken by the California

Supreme Court in Landgate, discussed infra at p. 27. 595 N.W.2d at 748.

27

e Before this Court granted certiorari in Tahoe-Sierra, the

Ninth Circuit stated that takings liability arises only where a

court invalidates a regulation—the exact situation here.

Relying on First English, the Ninth Circuit stated that “a

permanent regulation leads to a ‘temporary’ taking when a

court invalidates the ordinance after the taking.” Tahoe-

Sierra Preservation Council v. Tahoe Regional Planning

Agency, 216 F.3d 764, 778 (9" Cir. 2000), aff'd, 535 US.

302 (2002).

No Takings Liability Where Invalid Regulation is in

Effect: In stark contrast, the highest courts in New Jersey and

California have taken a position closer to the New Hampshire

Supreme Court. They state that’ enforcement of an illegal

regulation does not render the government liable for a taking:

e In Landgate, Inc. y. California Coastal Comm'n, 953 P.2d

1188, 1195 (Cal. 1998), cert. denied, 525 US. 876 (1998),

the California Supreme Court. stated that litigation to

overtum a “legally erroneous decision of a government

agency” is merely part of the normal “approval process” and

that such a “regulatory mistake” cannot be compensated as a

taking. Jd. at 1195. The Landgate court also elevated

Lucas’s “total taking” rule and rendered Penn _Central’s

partial taking analysis irrelevant where the government

makes illegal land use decisions: Only “[i]f the error is of a

particular type—the passage and enforcement of a law or

regulation that deprives property of all value—then the

teaching of First English is _that such an error is a

compensable taking.” /d. at 1197 (emphasis added).”!

™ Separate dissenting opinions believed that the majority’s decision in

Landgate directly c ontradicted F irst E nglish. I d., 953 P.2d at 1205-1212

(dissenting opinions of California Justices Chin, Baxter and Brown).

28

e In Pheasant Bridge Corp. v. Township of Warren, 777 A.2d

334 (N.J. 2001), cert. denied, 535 U.S. 1077 (2002), the

New Jersey Supreme Court declared that, although the town

arbitrarily and unreasonably applied a | and use regulation,

the landowner did not have a cognizable takings claim

during the period in which it successfully challenged the

ordinance. Compensation is not due in a situation “with an

invalid ordinance in which government went beyond the

scope of its zoning power, rather than a valid ordinance that

effected a taking.” /d. at 344.

If not rectified, the split in legal authority will beget more

opinions as far removed and disparate as those discussed above.

The issue is joined and the conflict is resolute. This Court’s

guidance is needed.

CONCLUSION

Decisions like the one below will embolden local

governments to act carelessly, or even knowingly, in

implementing ordinances that are illegal but nonetheless

achieve the fashionable goal to halt development. As Justice

Holmes recognized: “If...the uses -of private property were

subject to unbridled, uncompensated qualification under the

police power, ‘the natural tendency of human nature [would be]

to extend the qualification more and more until at last private

property disappeared’” (citations omitted). Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 415 (1922).

Justice Holmes’s prescient warning is as compelling today

as it was in 1922, when zoning laws barely existed and

government regulation of land-use was a foreign concept. But

in today’s regulatory climate, if the New Hampshire Supreme

Court’s decision stands, a pattern of municipal abuse is easy to

envisage: avoid the Fifth Amendment’s restrictions by

enforcing invalid laws.

PRE LT I VR A ET i OT LEIA

Ske)

29

Petitioners respectfully ask this Court to remind the Town of

Fremont, and other municipalities tempted to overreach their

powers, that their illegal actions have consequences under the

Fifth Amendment. They must pay for what they take. “After

all, a policeman must know the Constitution, then why not a

planner?” San Diego Gas, 450 U.S. at 661 n. 26 (Brennan, J.,

dissenting.)

For all of the foregoing reasons, the Petition should be

granted.

DATED: April 14, 2003

Respectfully submitted,

Duane J. Desiderio Sumner F. Kalman*

Jon W. Luther Counsel of Record

Thomas Jon Ward Thea S. Valvanis

National Association of 147 Main Street, Box 988

Home Builders Plaistow, NH 03865

1201 15" Street, NW (603) 382-4003

Washington, D.C. 20005

(202) 266-8200

Attorneys for Petitioners