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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 923

## Text

Mou FILED
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1436%3A4. Public record. Not legal advice.