Amicus Curiae Brief — Torromeo v. Town of Fremont, New Hampshire

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No. 02-1507

In The

Supreme Court of the United States

HENRY TORROMEO AND MDR CORPORATION

Petitioners,

¥.

TOWN OF FREMONT

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of New Hampshire

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS

CURIAE AND BRIEF OF DEFENDERS OF

PROPERTY RIGHTS AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

Nancie G. Marzulla*

Christopher Byrnes

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

(202) 822-6770

May 16, 2003 *Counsel of Record for Amicus Curiae

MOTION FOR LEAVE TO FILE AS AMICI CURIAE

Pursuant to Rule 37.2(b) of the Rules of the Supreme

Court of the United States, Defenders of Property Rights

(“Defenders”) requests leave to file the accompanying

amicus curiae brief in support of the Petition for Writ of

Certiorari. Petitioners Henry Torromeo and MDR

Corporation have consented to the filing of this brief;

Respondent Town of Fremont has not.

Defenders of Property Rights is a non-profit, public

interest legal foundation dedicated to the preservation of

constitutionally protected property rights. Defenders’

mission is to protect those rights considered esseutial by the

Framers of the Constitution and to promote the exercise of

governmental power consistent with the constitutional

limitations upon the exercise of that power. Defenders’ goal

of the vigorous protection of property rights recognizes the

special role of federal courts in protecting those rights.

This case concerns an alleged violation of the Just

Compensation clause of the Fifth Amendment in the context

of a temporary taking of private property. Defenders

believes that the guarantee of the Fifth Amendment must be

uniform in all states and, further, that the rule adopted by the

Supreme Court of New Hampshire and some other state -

courts is utterly inconsistent with that guarantee. Allowing

local governments to avoid the constitutionally required

remedy of just compensation for an ordinance that

temporarily deprives a property owner of the property’s use

and value, simply based on a finding that the ordinance was

invalid from the beginning, undercuts a adem

constitutional right of private property owners and frustrates

the intent of the Fifth Amendment. Defenders will provide

additional information on these issues that will assist this

Court in deciding if it should hear this case.

Accordingly, Defenders respectfully moves that this

Court grant its motion to file the accompanying amicus

curiae brief in support of the Petition for Writ of Certiorari in

this case.

May 16, 2003

Respectfully submitted,

Nancie G. Marzulla*

Christopher Byrnes

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave. NW

Suite 410

Washington, DC 20036

(202) 822-6770

*Counsel of Record for Amicus Curiae

QUESTION PRESENTED

Amicus curiae will address the following issue

presented for review:

When a local government enacts a growth

management ordinance in the general scope of its authority

that deprives a property owner temporarily of economic use

of his property, can the local government avoid paying Just

Compensation under the Fifth Amendment based on a

finding that the growth ordinance was invalid from the start

due to a procedural defectin its enactment?

TABLE OF CONTENTS

QUESTION PRESENTEDD..........<.0cccccssscsesocoensssesesveosee i

TAREE OW COMTIIIGG o.oo cccacinesssdecsccemrspetscovtinn ii

TABLE OF AUTHORITIES. ..........cccccesccesseeesseeeeeens iii

BRIEF IN SUPPORT OF PETITIONERS..............00000+. 1

IDENTITY AND INTEREST OF AMICUS CURIAE.........1

ST A TCE GIP ME iii nnn vtnninctadvesesssnacteceumenven 2

REASONS FOR GRANTING THE PETITION................ 4

I. This Court’s Intervention Is Needed to Ensure That

States Consistently Interpret The Fifth Amendment

Guarantee of Just Compensation for Temporary

II. Permitting Invalidation as a Substitute Remedy

for Just Compensation Invites the Risk of Regulatory

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TABLE OF AUTHORITIES

Cases Page

520 E. 81st Street Associates v. State, 780 N.E.2d 518 (N.Y.

As vusuhpaaduanesesiececnmsndecedsschsalpeas mmniaaen ns 7

Armstrong v. United States, 364 U.S. 40 (1960).............. 18

Boling v. United States, 41 Fed. Cl. 674 (1998), rev'd on

other grounds, 220 F.3d 1365 (Fed. Cir. 2000)............... 15

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

Chioffi v. City of Winooski, 676 A.2d 786 (Vt. 1996)...12, 13

Cumberland Farms, Inc. v. Town of Groton, 719 A.2d 465

SE ee iiskcdrtsciekivkh bavievnkasdethendeiodsendtiewecesipeas 6

Del Rio Drilling Programs, Inc. v. United States, 146 F.3d

Be Ie a Si tedielanatesiccrmmpaciepenicownsstianipesines 14

Dolan v. City of Tigard, 512 U.S. 374 (1994)............:0 16

Eberle v. Dane County Bd. Of Adjustment, 595 S.W.2d 730

SPE CUE: tudichirdnkbecondduvetinknasnestadiied cabeneencsamenuune 7

Eldred v. Ashcroft, 123 S. Ct. 769 (2002)...............0eeee 13

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987)... ..sssescosevsvcosceseneves passim

Landgate, Inc. v. California Coastal Comm’n, 953 P.2d 1188

ee Unidas cis tineeieborsibaeekinehinitteenaantitereens 12, 13

ili

Mapp v. Ohio, 367 U.S. 643 (1961)........0.ccesecseeeeeeeees 15

Marbury v. Madison, 5 U.S. 137 (1803).......... ccc cece eee ees 14

Miller & Sons Paving, Inc. v. Plumstead T. ownship, 717 A.2d

Tc cketncheasesneieaeanbie tn iaa tena sieatenl 8

Pheasant Bridge Corp. v. Township of Warren, 777 A.2d 334

(N.J. 2001), cert. denied, 535 U.S. 1077 (2002)............... 12

Pi Electronics Corp. v. United States, 2003 U.S. Claims

LEAR CRUG. FOG GE, BMG i vcsvesvinssssiconsonsesisvesussune 15

Rith Energy, Inc. v. United States, 247 F.3d 1355 (Fed. Cir.

DOTS Wiican seeeawees 14

San Diego Gas & Electric Co. v. City of San Diego, 450 U.S.

Bee BI a isiiiriniivictistencuseceessmnanaeeis 11, 18

SDDS, Inc. v. State of South Dakota, 650 N.W.2d 1 (S.D.

ira itntiacesesdvisnvelieeneae denice tale 8

Sintra, Inc. v. City of Seattle, 935 P.2d 555 (Wash.

SPE T Dich siacicidinankssauachabhesveccsenuiesneasaintasdidamns 3

Steinbergh v. City of Cambridge, 604 N.E.2d 1269 (Mass.

RU Anissniavervanneiiaasyeeadnesniciebasa rasan bioniaaanl 7

State ex rel. Shemo v. City of Mayfield Heights, 765 N.E.2d

FF EE BR ittitsceamciniittdiintriindnaesennena 8

Tampa-Hillsborough County Expressway v. Authority v.

A.G.W.S. Corp., 640 So. 2d 54 (Fla. 1994)...........c eee eee 6

United States v. Morrison, 529 U.S. 598 (1999).............. 14

iV

ee

Whitehead Oil Co. v. City of Lincoln, 515 N.W.2d 401 (Neb.

Woodland Manor, III Assocs., L.P. v. Reisma, 2003 R.L.

Super. LEXIS 35 (R. I. Super. Feb. 24, 2003).................. 9

Constitutional Provisions

U.S. CONST. amend. V......ccccccccceeccccucsececeeeee Maa es 5

Statutes, Regulations, and Rules

LA. REV. STAT. ANN. § 3:3610 (2003)...............eee enone ee 10

MIss. CODE ANN. § 49-33-9 (2003)............cceeseeeeeeeeeee 10

TEX. GOV’T CODE §2007.023 (2002).................2008- 12, 13

Secondary Sources

RICHARD BABCOCK, THE ZONING GAME (1966)............. 17

John D. Echevarria, Takings and Errors, 51 ALA. L. REV.

ee Es iitceviite bin innunancseeuissAliamsn den doumieerente 11

Douglas Kmiec, Regulatory Takings: The Supreme Court

Runs Out of Gas in San Diego, 57 IND. L.J. 45 (1982)...... 17

Vv

BRIEF IN SUPPORT OF PETITIONERS

IDENTITY AND INTEREST OF AMICUS CURIAE

Defenders of Property Rights is a non-profit, public

interest legal foundation dedicated to the preservation of

constitutionally protected property rights. Defenders’

mission is to protect those rights considered essential by the

framers of the Constitution and to promote the exercise of

governmental power consistent with the constitutional

limitations upon the exercise of that power. Defenders’ goal

of the vigorous protection of property rights recognizes the

special role of federal courts in protecting those rights. Since

its founding in 1991, Defenders has participated in every

significant _— rights case in this Court including

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Solid Waste Agency of Northern

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than Amici Curiae, their members, or their counsel,

made a monetary contribution to the preparation and submission of this

brief.

Cook County v. United States Army Corps of Engineers, 531

U.S. 159 (2001); City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999); Phillips v. Washington

Legal Found., 524 U.S. 156 (1998); Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997); Bennett v.

Spear, 520 U.S. 154 (1997); Babbitt v. Sweet Home Chapter

of Communities for a Great Oregon, 515 U.S. 687 (1995);

Dolan v. City of Tigard, 512 U.S. 374 (1994); Keene Corp. v.

United States, 508 U.S. 200 (1993); and Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992).

STATEMENT OF THE CASE

Henry Torromeo wanted to develop a 27-lot

residential subdivision called Mason’s Corner in Fremont,

New Hampshire. MDR Corporation wanted to do the same

with a 14-lot subdivision in Fremont it owned in Fremont

called Glidden Hills Estates. In September 1999, the Town

of Fremont denied Torromeo and MDR building permits

because of a local growth control ordinance, leaving

petitioners with no use of their land. By that time, Torromeo

and MDR had collectively sunk $1 million into their

subdivision roads. They could not build in the subdivision,

had nothing of value to sell, and could not relocate to develop

- elsewhere, their capital being sunk in Fremont.

Torromeo and MDR filed separate suits for injunctive

relief to compel issuance of the building permits. The

Superior Court ordered issuance of the permits in December

1999, ruling that the growth control ordinance under which

the permits were denied was invalid ab initio because the

Town had not adopted a capital improvement program, the

statutory prerequisite to a growth control ordinance. The

Town issued the permits in February 2000.

Torromeo and MDR received no just compensation

for the six-month period during which they could make no

beneficial or productive use of their land. They filed separate

suits in Superior Court to recover just compensation under

the state and federal Constitutions. The Superior Court

awarded Torromeo and MDR compensation for the carrying

costs and fair rental value of the undeveloped lots, ruling that

petitioners did not have to prove the unconstitutionality of

the growth control ordinance to recover just compensation, as

the Town had argued at the damages phase. The Town

appealed to the Supreme Court of New Hampshire. |

The Supreme Court of New Hampshire reversed the

award of just compensation, finding that the proper remedies

for this “mere municipal error” were limited to invalidation

of the ordinance and issuance of the previously denied

building permits, despite the economic loss to petitioners.

Torromeo and MDR petition this Court to review the

decision of the New Hampshire Supreme Court.

REASONS FOR GRANTING THE PETITION

I. This Court’s Intervention Is Needed to Ensure That

States Consistently Interpret the Fifth Amendment

Guarantee of Just Compensation for Temporary Takings

Sixteen years ago, this Court reversed the holding of

the California Supreme Court that “when an ordinance...

deprives a person of the total use of his lands, his challenge

to the ordinance is by way of declaratory relief or possibly

|

mandamus." See First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304, 308 (1987). The

First English Court held that:

‘temporary’ takings which. . . deny a landowner all

use of his property, are not different in kind from

permanent takings, for which the Constitution clearly

requires compensation... The value of a leasehold

interest in property for a period of years may be

substantial, and the burden on the property owner in

extinguishing such an interest for a period of years

may be great indeed. Where this burden results from

governmental action that amounted to a taking, the

Just Compensation Clause of the Fifth Amendment!

requires that the government pay the landowner for

the value of the use of the land during this period.

482 U.S. 304, 318-319. The First English Court was clear

as to what remedy the Constitution required for temporary

regulatory takings--just compensation. See 482 U.S. 304,

320 (“Invalidation of the ordinance . . . , though converting

the taking into a temporary one, is not a sufficient remedy to

meet the demands of the Just Compensation Clause”).

' «(NJor shall private property be taken for public use, without just

compensation.” U.S. CONST. amend. V.

Despite the First English decision, however, the

highest courts of many states have reached diametrically

opposite conclusions on whether an authorized but invalid _

action of local government constitutes a taking for which the

Fifth Amendment guarantees just compensation. Despite the

clear holding of this court that temporary takings are

compensable, many state courts appear confused about

whether all such takings are compensable.

Connecticut, Florida, Louisiana, Mississippi,

Massachusetts, Nebraska, New York, Ohio, Pennsylvania,

Rhode Island, South Dakota, and Wisconsin have required

compensation for all temporary takings, including those

worked by invalid regulations. See, e.g., Cumberland

Farms, Inc. v. Town of Groton, 719 A.2d 465, 474 (Conn.

1998) (town’s improper denial of variance did not preclude

Just Compensation claim); Tampa-Hillsborough County

Expressway v. Authority v. A.G.W.S. Corp., 640 So. 2d 54

(Fla. 1994) (as-applied takings challenges to a Florida map

reservation statute were unaffected by finding that statute

violated Due Process Clause); Steinbergh v. City of

Cambridge, 604 N.E.2d 1269 (Mass. 1992) (regulatory

takings challenge to rent control ordinance could go forward

regardless of previous ruling that ordinance was ultra vires);

Sintra, Inc. v. City of Seattle, 935 P.2d 555 (Wash. 1997);

Eberle v. Dane County Bd. Of Adjustment, 595 S.W.2d 730

(Wisc. 1999) (developer’s temporary takings action under

state constitution was not barred by the fact that delay

resulted from board’s improper denial of zoning variance).

For example, the Nebraska Supreme Court held

that the unenforceability of a zoning ordinance and the

arbitrariness and capriciousness of the permit denials

issued thereunder did not relieve the city of its duty to pay

compensation to the aggrieved property owner. See

Whitehead Oil Co. v. City of Lincoln, 515 N.W.2d 401

(Neb. 1994). The New York Court of Appeals held that an

invalid rent control exemption that caused a temporary

taking did not preclude an award of just compensation.

See 520 E. 81st Street Associates v. State, 780 N.E.2d 518

(N.Y. 2002). The Ohio Supreme Court agreed that the

invalidity of a rezoning did not bar the award of just

compensation to the property owners afflicted during the

rezoning’s effective period. See State ex rel. Shemo v.

City of Mayfield Heights, 765 N.E.2d 345 (Ohio 2002).

Pennsylvania likewise agreed that “in a takings inquiry,

however, the question is whether the governmental action

effectively deprived the landowner of all beneficial use of

his property, regardless of whether the action in question

was a valid exercise of governmental power.” See Miller

& Sons Paving, Inc. v. Plumstead Township, 717 A.2d

483, 486 (Pa. 1998).

The Supreme Court of South Dakota has

neglected to explore any remedy for a temporary taking

other than just compensation, which, it held, formed the

outer parameters of the available remedy for a temporary

taking. See SDDS, Inc. v. State of South Dakota, 650

N.W.2d 1, 10-11 (S.D. 2002) (“states should be free to

experiment in the implementation of this rule, provided

scene, egy

that their chosen procedures and remedies comport with

the fundamental constitutional command [of just

compensation]’”). Washington allowed just compensation

for a temporary taking caused by a housing ordinance

struck down on substantive due process grounds. See

Sintra, Inc. v. City of Seattle, 935 P.2d 555 (Wash. 1997).

The Superior Court of Rhode Island held recently that

a landowner that has “successfully freed its land” from the

state’s Department of Environmental Management’s demand

that he submit a new development permit application via

invalidation is entitled to just compensation. See Woodland

Manor, III Assocs., L.P. v. Reisma, 2003 R.I. Super. LEXIS

35, 46 (R. I. Super. Feb. 24, 2003). In so holding, that court

relied on First English’s holding that invalidation “was not a

sufficient remedy to meet the demands of the Just

Compensation clause.” See id.

A few states have codified the holding in First

English to ensure that state agencies and political

subdivisions pay just compensation for temporary takings of

private property after the regulation is found invalid.

Louisiana authorizes the owner of agricultural or forest land

to bring an action against a state or local government agency

if a rule or regulation has reduced the value of that land by

twenty percent or more. Louisiana law also mandates that,

even “if such rule or regulation is rescinded or repealed,”

“the governmental entity shall be liable for damages

sustained by the property owner to his affected property

which were caused by the application of the rescinded or

repealed rule or regulation.” See LA. REV. STAT. ANN. §

3:3610 (2003). .

Similarly, Mississippi gives state governmental

entities the option of rescinding rules or regulations that

reduce the value of agricultural or forest land by more than

forty percent, but still requires them to pay the aggrieved

property owner if they opt to rescind the offending

regulation. See Miss. CODE ANN. § 49-33-9 (2003)

(“Subsequent repeal of the action by the state after a decision

10

has become final shall not entitle the state to refuse payment .

ae

The states interpreting First English in this manner

focus on the property owner’s resulting loss. See San Diego

Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 652

(1980) (Brennan, J. dissent) (“From the property owner's

point of view, it may matter little whether his land is

condemned or flooded, or whether it is restricted by

regulation to use in its natural state, if the effect in both cases

is to deprive him of all beneficial use of it”).

Other states have restricted the scope of protection for

landowners afflicted by temporary takings, removing the

focus from the property owner’s loss by barring a takings

remedy where landowners successfully procured the

invalidation of the offending regulation. California, New

Jersey, Texas, and Vermont have precluded takings claims

based on authorized but invalid regulation. See John D.

Echevarria, Takings and Errors, 51 ALA. L. REV. 1047, 1057

(2000). These cases reject temporary Just Compensation

11

claims on the grounds that only lawful and valid government

action gives rise to takings liability. See Landgate, Inc. v.

California Coastal Comm'n, 953 P.2d 1188 (Calif. 1998);

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

334, 344 (N.J. 2001), cert. denied, 535 U.S. 1077 (2002);

Chioffi v. City of Winooski, 676 A.2d 786 (Vt. 1996) (city’s

erroneous deriai of variance application barred Just

Compensation claim). See also TEX. GOV’T CODE

§2007.023 (2002).

The Supreme Court of New Jersey has held that just

compensation was not required in the case of “an invalid

ordinance in which government went beyond the scope of its

zoning power” in working a taking. See Pheasant Bridge

Sonn. 777 A.2d at 344. That court held that interim

monetary damages were not constitutionally required for

“regulatory delay in securing a change in, or variance from, a

zoning ordinance and delay occasioned by resort to judicial

processes to challenge application of a zoning ordinance to

one's property.” Sze id. California also excludes just

ores 12

compensation as a remedy for erroneous government conduct

that temporarily deprives a property owner of economic and

beneficial use of his property. See, e.g., Landgate, 953 P.2d

at 1995 (“legally erroneous decision of a government

agency” is merely a “regulatory mistake” that cannot be

compensated as a taking). Vermont likewise held the reversal

of an improper denial of a building permit to be mere

“regulatory delay” barring a temporary takings claim. See

Chioffi, 676 A.2d at 788.

Texas permits a state agency to elect paying

compensation to property owners whose property value is

reduced by twenty-five percent or more. See TEX. GOV’T

CODE §2007.023 (2002). That is, rescinding the action

remains a viable substitute under Texas law for just

compensation.

This is not mere inconsistency—it is denial of

constitutional guarantees. The role of this court is to declare

what the constitution means, and to provide this guidance to

the state courts. See, e.g., Eldred v. Ashcroft, 123 S. Ct. 769,

13

801 (2002); United States v. Morrison, 529 U.S. 598, 616

(1999); Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is

emphatically the province and duty of the judicial department

to say what the law is”).

State courts interpreting First English to exclude

authorized but invalid regulation from the ambit of temporary

~ takings liability add another layer of confusion to takings

jurisprudence. In cases against the federal government, the

courts have generally rejected the argument that an invalid

statute or regulation cannot give rise to a taking.

Property owners who suffer regulatory takings at the

hands of the federal government can hold government liable

for actions that are authorized but invalid on other grounds.

A Just Compensation claim against the federal government is

established “as long as the government’s action was

authorized, even if the government’s action was subject to

legal challenge on some other ground.” See Rith Energy, Inc.

v. United States, 247 F.3d 1355, 1365 (Fed. Cir. 2001). See

also Del Rio Drilling Programs, Inc. v. United States, 146

14 ,

F.3d 1358, 1362 (Fed. Cir. 1998); Pi Electronics Corp. v:

United States, 2003 U.S. Claims LEXIS 26, 32 (Ct. Fed. Cl.

2003). Consequently, neither good faith mistake on the part

of the federal government, see Del-Rio Drilling, 146 F.3d at

1363, nor negligence, see Boling v. United States, 41 Fed. Cl.

674, 679 (1998), rev'd on other grounds, 220 F.3d 1365

(Fed. Cir. 2000), bars a Just Compensation claim against the

federal government for otherwise authorized action.

The Fifth Amendment guarantee of Just

Compensation is a federal constitutional right that binds the

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

(1897), and must be interpreted consistently by them. See,

e.g., Mapp v. Ohio, 367 U.S. 643, 656 (1961). Imagine the

public outcry if interpretations of free exercise of religion,

freedom of speech, freedom of peaceable assembly, and the

right against compelled self-incrimination varied from state

to state. The Constitution requires the same consistency with

respect to the Fifth Amendment right to Just Compensation,

no “poor relation” among constitutional guarantees. See

15

Dolan v. City of Tigard, 512 U.S. 374, 392 (1994). This

Court’s intervention is needed to ensure that this federal

constitutional provision receives the same interpretation at

both the state and federal level.

II. Permitting Invalidation as a Substitute Remedy for

Just Compensation Invites the Risk of Regulatory

Gamesmanship |

The economic concerns of property owners at stake in

this case also demand this Court’s intervention. The Just

Compensation requirement ensures that the burden of

regulation that deprives property of economic value falls on

the public rather than on the property owner. Allowing local

governments to avoid paying just compensation for a

regulatory taking based on the initial invalidity of the

offending regulation invites abuse and gamesmanship on the

part of state and local governments. The property owner who

succeeds in having an authorized but otherwise invalid

regulation struck down leaves the government free to return

16

to the regulatory drawing board. See Douglas Kmiec,

Regulatory Takings: The Supreme Court Runs Out of Gas in

San Diego, 57 IND. L.J. 45, 51 (1982). As one commentator

has pointed out, invalidation as a substitute remedy leaves the

property owner at a perpetual disadvantage:

You have obtained a decision that the single-family

classification of your client's property is unreasonable.

Your client wants to use the property for commercial

purposes. The community immediately rezones the

property to a Duplex Zone and invites you to spend

another two years and thousands of dollars litigating that

classification.

RICHARD BABCOCK, THE ZONING GAME 13 (1966).

Under an invalidation-only regime, governments can,

at no cost, simply enact defective land use regulation after

defective land use regulation, knowing that they will never be

liable for just compensation. Property owners, on the other

hand, bear the cost of the regulation and the cost of

challenging the regulation.

Because it properly allocates the burdens of

government action in the property context, the Just

Compensation requirement serves as the only means to

17

discourage this regulatory abuse and gamesmanship. See San

Diego Gas & Electric Co., 450 U.S. at 656 (Brennan, J.

dissent) (“[MJere invalidation would fall far short of

fulfilling the fundamental purpose of the Just Compensation

Clause. That guarantee was designed to bar the government

from forcing some individuals to bear burdens which, in all

fairness, should be borne by the public as a whole”). Just

compensation, not invalidation, reallocates the burden of

regulation back to the public, where, in “all fairness and

justice,” it “should be borne.” See Armstrong v. United

States, 364 U.S. 40, 49 (1960).

18

CONCLUSION

For the foregoing reasons, amicus curiae urges this

Court to grant the Petition for Writ of Certiorari.

Respectfully submitted,

Nancie G. Marzulla*

Christopher Byrnes

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

202-822-6770

May 16, 2003 *Counsel of Record for Amicus Curiae

19