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

MOTION FILED

MAR 3 4 2005

No. 02-1507

In the

Supreme Court of the United States

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HENRY TORROMEO and MDR CORPORATION,

Petitioners,

Vv.

TOWN OF FREMONT, NEW HAMPSHIRE,

Respondent.

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On Petition for Writ of Certiorari to

the Supreme Court of New Hampshire

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MOTION TO FILE BRIEF AMICUS CURIAE AND

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

HENRY TORROMEO AND MDR CORPORATION

Qran

J. DAVID BREEMER JAMES S. BURLING

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10360 Old Placerville Road, 10360 Old Placerville Road,

Suite 100 Suite 100

Sacramento, California 95827 Sacramento, California 95827

Telephone: (916) 362-2833 Telephone: (916) 362-2833

Facsimile: (916) 362-2932 Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

——————————

1

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE

Pursuant to this Court’s Rule 37(b), Pacific Legal Foun-

dation respectfully requests leave of the Court to file this brief

amicus curiae in support of Petitioners Harry Torromeo and

MDR Corporation.’ Written consent for amicus participation

in this case was granted by counsel of record for Petitioners.

Consent was withheld by Respondent Town of Fremont.

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit, public interest law foundation of its kind

in America. For 30 years, PLF has been litigating in support of

the rights of individuals to make reasonable use of their private

property. PLF attorneys have been before this Court on three

occasions representing individuals whose right to use their

property was unlawfully denied by government agencies. See

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

Tahoe Regional Planning Agency, 520 U.S. 725 (1997); Nollan

v. California Coastal Commission, 483 U.S. 825 (1987). PLF

has also participated as amicus curiae in nearly every major real

property takings case heard by this Court in the last two

decades, including the recent case of Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302

(2002).

PLF believes that its litigation experience will provide an

additional, valuable viewpoint on the issues presented in this

case. Specifically, PLF seeks to augment the arguments of the

Petitioners by providing additional background on the

jurisprudential framework in which this case arises. PLF’s

' In accordance with Rule 37.6, Amicus Curiae confirms that this

brief was not written by counsel for any party in this matter and that

no person or entity made a monetary contribution specifically for the

preparation of this brief.

2

amicus brief directs this Court to lower court decisions, not

cited by Petitioners, that are in conflict with each other and with

the decision by the New Hampshire Supreme Court.

For these reasons, the motion of Pacific Legal Foundation

to file a brief amicus curiae should be granted.

DATED: May, 2003.

Respectfully submitted,

J. DAVID BREEMER JAMES S. BURLING

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10360 Old Placerville Road, 10360 Old Placerville Road,

Suite 100 Suite 100

Sacramento, California 95827 Sacramento, California 95827

Telephone: (916) 362-2833 Telephone: (916) 362-2833

Facsimile: (916) 362-2932 Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

Where Petitioner successfully argued that the application of

a land use restriction to his property was “invalid ab initio,” did

the New Hampshire Supreme Court err in holding that

Petitioner was not entitled to just compensation for the period

during which the restriction barred otherwise permissible

development?

il

TABLE OF CONTENTS

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THE DECISION BELOW HIGHLIGHTS A TREND

THAT DRASTICALLY LIMITS THE REACH OF

THE JUST COMPENSATION REMEDY AND

DIRECTLY CONFLICTS WITH THE DECISIONS

OF LOWER FEDERAL AND STATE COURTS............

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TABLE OF AUTHORITIES

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980) ....

Chioffi v. City of Winooski,

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First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

i a i ee re re

Landgate, Inc. v. California Coastal

Commission, 953 P.2d 1188 (Cal. 1998) ......

Miller and Son Paving, Inc. v. Plumstead

Township, 717 A.2d 483 (Pa. 1998) ..........

Nemmers v. City of Dubuque,

716 F.2d 1194 (8th Cir. 1983)............00-

San Diego Gas & Electric Co. v. City of San Diego,

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Sea Cabins on Ocean IV Homeowners

Association, Inc. v. City of North Myrtle

Beach, 548 S.E.2d 595 (S.C. 2001) ...........

Steinbergh v. City of Cambridge, |

604 N.E.2d 1269 (Mass. 1992) ..............

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

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

Wheeler v. City of Pleasant Grove,

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Whitehead Oil Company v. City of

Lincoln, 515 N.W.2d 401 (Neb. 1994) ........

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1

INTRODUCTION

Pacific Legal Foundation respectfully submits this brief

amicus curiae in support of the petition for certiorari filed by

Petitioner Henry Torromeo and MDR Corporation on April 14,

2003.

When a land use restriction is found to be invalid at

inception, some lower courts have concluded that invalidation

is the only relief available to the aggrieved property owner.

These courts are split, however, on the rationale for denying

compensation. Other courts have gone in the opposite

direction, reasoning that compensation is required when a land

use restriction is invalidated. Given the confusion below, this

Court should grant the petition to clarify the circumstances

under which an invalidated regulation will trigger the just

compensation remedy of the Fifth Amendment.

4—

ARGUMENT

THE DECISION BELOW HIGHLIGHTS A TREND

THAT DRASTICALLY LIMITS THE REACH OF

THE JUST COMPENSATION REMEDY AND

DIRECTLY CONFLICTS WITH THE DECISIONS

OF LOWER FEDERAL AND STATE COURTS

State court decisions that refuse, like the decision below,

to grant compensation for an illegal land use restriction have

done so on two grounds. First, when faced with a claim that an

invalid regulatory decision has caused a compensable taking by

temporarily preventing all property use, a few decisions deny

compensation on the ground that a statutorily-based “mistake”

in application cannot give rise to a damages remedy. See

Landgate, Inc. v. California Coastal Commission, 953 P.2d

1188, 1203 (Cal. 1998) (concluding that “a judicial

determination of the validity of certain preconditions to

2

development is a normal part of the development process,” and

thus could not give rise to a right to a claim for compensation

even when the “precondition” was invalid and denied all use

during the judicial proceedings); Steinbergh v. City of

Cambridge, 604 N.E.2d 1269, 1275 (Mass. 1992) (“plaintiffs

make no reasoned argument that, simply because a municipal

regulation is not authorized by law, there is a compensable

temporary taking . . . even though the regulation restricts the

sale and reduces the market value of the property until the

regulation is successfully challenged in court”).

But when the claim rests purely on the allegation that

application of the regulation was invalid and/or did not

substantially advance a legitimate interest, other courts have

held that compensation is available only where a regulation

prevents all use of property. Sea Cabins on Ocean IV

Homeowners Association, Inc. v. City of North Myrtle Beach,

548 S.E.2d 595, 604 (S.C. 2001) (stating ‘ :at while a landowner

“who successfully challenges th applicability of a

governmental regulation is likely to have suffered some

temporary harm during the process, the harm does not give rise

to a constitutional taking”); Miller and Son Paving, Inc. v.

Plumstead Township, 717 A.2d 483, 486 (Pa. 1998) (holding

that an invalid regulation did not give rise to a temporary taking

because it did not deny all use of property); Chioffi v. City of

Winooski, 676 A.2d 786, 790 (Vt. 1996) (improper denial of

variance did not cause a taking because compensation remedy

reserved for denials of all use).

The decision of the New Hampshire Supreme Court

adopts both of these rationales: it effectively holds that the

compensation remedy does not apply if (1) any viable use of

property remains; or (2) application of the restrictive regulation

was an “erroneous” means to achieve a legitimate end. See

Petitioner’s Appendix (Pet. App.) at 1-3. Put in the affirmative,

this means that compensation is due only when a regulation is

valid and denies all use. Jd.

3

Such a ruling puts a large class of regulatory land use

restrictions beyond the reach of the Just Compensation Clause.

In particular, it makes no room for compensation when a land

use decision is such an unreasonable means of achieving a goal

that it fails to substantially advance legitimate state interests.

Cf Agins v. City of Tiburon, 447 U.S. 255, 260 (1980); Tahoe-

Sierra Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302, 334 (2002) (noting that a landowner

could argue for compensation on the ground that a temporary

regulation was applied in bad faith or “did not substantially

advance a legitimate state interest”). More generally, the

decision below logically bars compensation whenever a land

use restriction is illegally applied, regardless of its impact on

the owner.

This ruling undermines the rule of law in the land use

context because invalidation is simply not a strong enough

consequence to deter excessive interference with private

property. During the effective period of the regulation and

litigation to have it reversed, the subject land will remain idle,

as the government desires. If the government’s actions are

eventually struck down, it can simply start over, without any

real liability. Given the highly discretionary nature of land use

decision-making, it is inevitable that some regulators will take

advantage of this situation. This is exactly the problem that this

Court sought to rectify by mandating compensation as the

constitutional remedy for all invalid land use restrictions that

rise to a taking. See, e.g., San Diego Gas & Electric Co. v. City

of San Diego, 450 U.S. 621, 655 n.21 (1981) (Brennan, J.,

dissenting).

In light of the practical problems associated with the

invalidation remedy, it is not surprising that several important

federal and state decisions stand in opposition to the decision

below. Among these are Wheeler v. City of Pleasant Grove,

833 F.2d 267, 270 (11th Cir. 1987), Nemmers v. City of

Dubuque, 716 F.2d 1194, 1197-1200 (8th Cir. 1983), and

4

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

407-08 (Neb. 1994).

In Wheeler, the city passed an ordinance that “outlawed

construction of apartment complexes” throughout the city,

including on plaintiff's land. Wheeler, 833 F.2d at 268. The

district court found, and a panel of the Fifth Circuit

subsequently agreed, that the city’s actions “bore no substantial

relationship to any legitimate police power interest.” Jd. The

case was subsequently remanded to the-district court for a

determination of damages, but eventually returned to the newly-

created Eleventh Circuit after the district court failed to

properly calculate compensation for the period during which the

invalidated ordinance was in effect. Jd. at 269. At that point,

the court of appeals reiterated that “the plaintiffs were entitled

to compensation for the injury they sustained as a result of the

temporary taking.” Jd. at 270. The court pointed to First

English Evangelical Lutheran Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987), as vindicating its earlier

conclusion that compensation was required for the effective

period of the irrational ordinance. Jd.

In Nemmers v. City of Dubuque, the Eighth Circuit

concluded that private property had been downzoned to

agricultural use in violation of Iowa’s vested rights law. 716

F.2d at 1197-1200. The court subsequently held that the

aggrieved landowner was entitled to damages, under the United

States Constitution, for the period during which the illegal

zoning was in effect. 764 F.2d 502, 504-06 (8th Cir. 1985).

At the state level, the Nebraska Supreme Court made clear

in Whitehead Oil that an arbitrary land use regulation will

trigger compensation for its effective period. In Whitehead Oil,

the landowner successfully challenged the validity of a zoning

ordinance that limited its property to office uses. 515 N.W.2d

at 400. The trial court then awarded damages for the five year

period of litigation during which the ordinance remained in

5

effect. Jd. at 400, 404-05. On appeal to the state supreme

court, the city argued that there could be no compensable

temporary taking under these circumstances and, thus, the

damages were in error. Jd. at 407. The Nebraska Supreme

Court rejected this contention, concluding that the temporary

takings doctrine established in First English was applicable to

regulatory action that denied less than all use and, in particular,

to cases where the regulation was invalid:

Our determination . . . that in changing the

applicable zoning designation the city acted not in

furtherance of a legitimate state interest but

arbitrarily and capriciously so as to deny Whitehead

Oil a use permit, compels our agreement with the

district court’s ruling that Whitehead Oil’s property

has been subjected to a taking under the federal

Constitution.

Id. at 408. It therefore upheld a damage award for the period

during which the invalid zoning was in effect, calculated as the

difference between the fair market value of the property as it

existed under zoning allowing development of a convenience

store and its value under the subsequent irrational zoning

scheme. /d. at 411-12.

The decision of the New Hampshire Supreme Court is

difficult to reconcile with the reasoning of the foregoing federal

and state decisions. Unlike the decision below, these cases

acknowledge the compensatory remedy is a general remedy not

dependent on a denial of all use of property or the statutory

“validity” of an ordinance at the time of enactment. See, e.g.,

Whitehead Oil, 515 N.W.2d at 411. In contrast, the court below

establishes compensation as the constitutional exception, one

that is to be applied solely in the rare cases where government

is foolish enough to impose the most draconian use restriction

in an unreasonable manner. See (Pet. App.) at 1-3.

6

The manifest conflict between the decision below and the

decisions of other state and federal courts warrants a grant of

review under Rules 10(b) and 10(c).

a

CONCLUSION

The Petition for Writ of Certiorari should be granted.

DATED: May, 2003.

Respectfully submitted,

J. DAVID BREEMER JAMES S. BURLING

Of Counsel Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

10360 Old Placerville Road, 10360 Old Placerville Road,

Suite 100 Suite 100

Sacramento, California 95827 Sacramento, California 95827

Telephone: (916) 362-2833 Telephone: (916) 362-2833

Facsimile: (916) 362-2932 Facsimile: (916) 362-2932

Counsel for Amicus Curiae Pacific Legal Foundation