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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 923

## Text

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 |
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1436%3A1. Public record. Not legal advice.