Amicus Curiae Brief — Loewenstein v. City of Lafayette, California

MOTION FILED

JUL 4 4 2005 (4)

No. 02-1662

In the

Supreme Court of the United States

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PETER J. LOEWENSTEIN and HELEN LOEWENSTEIN,

Petitioners,

V.

CITY OF LAFAYETTE, a Municipality,

Respondent.

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On Petition for Writ of Certiorari to the Court of

Appeal of the State of California, First Appellate District

-4-

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND BRIEF.

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

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J. DAVID BREEMER JAMES S. BURLING

GREGORY T. BRODERICK Counsel of Record

Of Counsel 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 Supreme Court Rule 37, Pacific Legal

Foundation respectfully moves this Court for permission to file

the attached brief amicus curiae in support of Petitioners Peter

J. and Helen Loewenstein. Written consent for amicus

participation in this case was granted by counsel of record for

Respondent City of Lafayette. Counsel for Petitioners did not

respond to a request for written consent.

Pacific Legal Foundation (PLF), the largest and most

experienced nonprofit public interest law foundation of its kind,

has been litigating in support of the rights of individuals to

make reasonable use of their private property for over 30 years.

PLF attorneys have argued before this Court on several

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, 533 U.S. 948

(2001). :

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 clarifying just how far the decision below goes in

isolating California from this Court’s takings jurisprudence.

PLF contends that the decision below is in direct conflict with

this Court’s decision in First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S. 304

(1987), as affirmed by Tahoe-Sierra. California takings

jurisprudence denies compensation for the effective period of -

a regulation that is invalid and that therefore fails to advance

2

legitimate state interests. Essentially, the opinion of the

California Court of Appeal demonstrates that temporary takings

are nonexistent in California. PLF’s amicus brief also seeks to

direct this Court to lower court decisions, not cited by

Petitioners, that are in conflict with the decision by the

California Courts.

For the foregoing reasons, Amicus Pacific Legal

Foundation respectfully requests that this Court GRANT its

motion for leave to file the attached brief.

DATED: July, 2003.

Respectfully submitted,

J. DAVID BREEMER JAMES S. BURLING

GREGORY T. BRODERICK Counsel of Record

Of Counsel 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

Whether a state court may avoid the duty, recognized by

this Court in First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 321 (1987),

to award just compensation for a temporary regulatory taking by

characterizing the taking as a “normal delay” in the land use

process?

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TABLE OF CONTENTS

Page

MOTION FORLEAVETO |

FILE BRIEF AMICUS CURIAE ...........2..0.s0cecee

QUESTION PRESENTED ............0.ecceceeees eee

TABLE OF AUTHORITIES ......... 00... ccccccnseeess: iii |

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS ..........

RN ee 0 ae hae

He EE EOE GE Dear APNE TAC 2

THE DECISION BELOW RAISES THE IMPORTANT

QUESTION OF WHETHER A LOCAL GOVERNMENT

MUST PAY JUST COMPENSATION FOR A TEMPORARY

REGULATORY TAKING OF REAL PROPERTY WHEN

THE REGULATORY ACTION IS RESCINDED AFTER A

JUDICIAL DETERMINATION THAT IT CAUSED A

PERMANENT TAKING OF THE PROPERTY ............. 2

ee eee eee eee ee ee eee ee 7

iil

TABLE OF AUTHORITIES

Page

Cases

Eberle v. Dane County Board of Adjustment,

505 N.W26 TIO CWE. AFPGE oc cee ce csvesehener 4,6

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304 (1987) ... 2-4, 6

Hughes v. State of Washington, 389 U.S. 290 (1967) ..... 4

Lambert v. City and County of San Francisco,

120 D. Ch SSOP CI) 6 vos caer cendnenenes feecets 6

Landgate, Inc. v. California Coastal Commission,

yee Fe t.. eweeerrerrrr eer errr Ts ]

Loewenstein v. City of Lafayette,

103 Cal. App. 4th 718 (2002) ................. 1, 3-6

San Diego Gas & Electric v. San Diego,

450 U.S. 621 (1981) .... 6. - eee eee eee eee eee 3-4

Stelpflug v. Town Bd., Town of Waukesha, County of

Waukesha, 612 N.W.2d 700 (2000) .............. 4-5

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302 (2002) .... 2-5

Whitehead Oil Co. v. City of Lincoln,

SIS WIE Al CD. TOPS occ ce even vecwievesans 5

Court Rule

Supreme Court Rule 37GB... cece cccrcssccesvessneses ]

iv

- TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Eagle, Steven J., Just Compensation for

Permanent Takings of Temporal Interests,

10 Fed. Cir. B.D. 485 GODT) oni cc ccc seis wnsranee’ 6

Paul, Jeremy, The Hidden Structure of Takings Law,

643. Cal. L. Rev. TIG3 CGP)... sn cscecsiccwscveess 4

1

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

INTRODUCTION’

This case confronts the Court with an understanding

of federal constitutional law that redacts the doctrine of

temporary regulatory takings in California, and in so doing

directly flouts this Court’s jurisprudence. Through litigation,

the Loewensteins, owners of two small, adjacent parcels,

established that the City of Lafayette illegally prevented them

from obtaining a lot-line adjustment that would have allowed

them to make economically beneficial use of their land. A trial

court subsequently ruled that the City’s actions caused a

compensable permanent taking of that property, which

prompted the City to grant the disputed lot-line adjustment.

Given the City’s reversal, the California Court of Appeais

concluded that the landowners retained only a temporary

regulatory takings claim. But, relying on the California

Supreme Court’s decision in Landgate, Inc. v. California

Coastal Commission, 17 Cal. 4th 1006 (1998), the court held

_ that the Loewensteins could not obtain compensation for the

temporary imposition of the land use restriction, even though

the restriction was held by the trial court to amount to a

permanent regulatory taking if left in place. See Loewenstein v.

City of Lafayette, 103 Cal. App. 4th 718, 729 (2002). In the

lower court’s view, loss of use and value prior to and up to

invalidation of the City’s illegal action was merely the product

of a “normal” and, thus, noncompensable “delay” in the

development process.

! Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the prepara-

tion or submission of this brief.

2

Under this understanding of the Just Compensation

Clause, there is no meaningful compensatory remedy in

California for temporary regulatory takings. This is, however,

the very understanding that this Court rejected over fifteen years

ago in First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304, 322 (1987) (holding

that “invalidation of the ordinance without payment of fair

value for the use of the property during this period of time

-would be a constitutionally insufficient remedy”). This Court

should not allow California to unilaterally turn back the

constitutional clock for millions of property owners by ignoring

the clear commands of the United States Supreme Court.

ARGUMENT

THE DECISION BELOW RAISES THE

IMPORTANT QUESTION OF WHETHER

A LOCAL GOVERNMENT MUST PAY JUST

COMPENSATION FOR A TEMPORARY

REGULATORY TAKING OF REAL PROPERTY

WHEN THE REGULATORY ACTION IS

RESCINDED AFTER A JUDICIAL

DETERMINATION THAT IT CAUSED A

PERMANENT TAKING OF THE PROPERTY

In First English, this Court held that “where the

government’s activities have already worked a taking of all use

of property, no subsequent action by the government can relieve

it of the duty to provide compensation for the period during

which the taking was effective.” First English, 482 U.S. at 321.

In this way, First English adopted the principle 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 effected the “taking,” and

ending on the date the government entity chooses to

rescind or otherwise amend the regulation.

3

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

Planning Agency, 535 U.S. 302, 328 (2002) (quoting San Diego

Gas & Electric v. San Diego, 450 U.S. 621, 658 (1981)

(Brennan, J., dissenting). Recently, this Court engaged in an

extensive review of First English and concluded that “nothing

that we say today qualifies its holding.” Tahoe-Sierra, 535 U.S.

at 328.

The lower court has, however, qualified First English’s

holding to such a degree that compensation for a temporary

regulatory taking is logically the constitutional exception, rather

than the rule. The vehicle for this regression is First English’s

brief statement that it did “not deal with the quite different

questions that would arise in the case of normal delays in

obtaining building permits, changes in zoning ordinances,

variances, and the like which are not before us.” First English,

482 U.S. at 321 (emphasis added).

Seizing upon this “normal delay” language, the court

below concluded that the City’s illegal land use decision could

not give rise to a claim for compensation. Loewenstein, 103

Cal. App. 4th at 728-29. Central to this conclusion was the

court’s determination that the “policy” under which the City

illegally acted was “legitimate.” Jd. at 732. More precisely,

because a “reasonable policy” gave rise to the illegal land use

restriction, the Loewensteins’ loss of all use and value of the

property amounted to anoncompensable “normal delay.” /d. at

736 (resolution of the threshold issue of the legality of the lot-

line adjustment was a normal delay in the process of obtaining

a permit pertaining to land use).

The court did offer future temporary regulatory takings

claimants one slim hope: if an illegal land use decision was

guided by an improper motive, such as one made for “no

purpose other than to delay the development project before it,”

compensation might be possible. See Loewenstein, 103 Cal.

App. 4th at 728, 731, 734-36 (“there is no substantial evidence

4

to support the conclusion that the City’s action was taken for

any motive other than carrying out a substantial government

interest”). There is nothing, however, in this Court’s decisions

that comes close to such a requirement. On the contrary,

because “*‘the Constitution measures a taking of property not by

what a State says, or by what it intends, but by what it does,’”

San Diego Gas & Electric, 450 U.S. at 652-53 (Brennan, J.,

dissenting) (quoting Hughes v. State of Washington, 389 U.S.

290, 298 (1967) (Stewart, J., concurring)) (emphasis added),’

the constitutional rule for temporary regulatory taking is simply

that just compensation is required when the government goes so

far as to cause a regulatory taking that “continue[s] for only a

temporary period of time.” Eberle v. Dane County Board of

Adjustment, 595 N.W.2d 730, 737 (Wis. 1999), accord

Stelpflug v. Town Bd., Town of Waukesha, County of Waukesha,

612 N.W.2d 700, 706 (2000) (following Eberle in holding that

“temporary condemnation for a public road in this case was

sufficient a deprivation of the incidents of ownership to

constitute a taking’’).

First English’s “normal delay” language hardly justifies a

complete reversal of these principles, and thus the evisceration

of First English itself. As Tahoe-Sierra affirmed, that language

simply refers to governmental actions that do not rise to a

taking in the first place; i.e., delays in “obtaining building

permits, changes in zoning ordinances, variances, and the like.”

Tahoe-Sierra, 535 U.S. at 329. The narrow “normal delay”

exception does not eliminate liability for a regulation already

2 This Court has refrained from looking closely at motive

“when addressing whether compensation must be paid” because

of the difficulties in discerning regulatory intent and because it

“would demand that the Court develop a hierarchy of

acceptable governmental motivations.” Jeremy Paul, The

Hidden Structure of Takings Law, 64 S. Cal. L. Rev. 1393,

1433 n.97 (1991).

>.

found to cause a taking. When a regulatory taking is found to

exist, and the regulatory action causing that taking is either

judicially invalidated or rescinded by the government, a

compensable temporary taking exists without further inquiry.

See Tahoe-Sierra, 535 U.S. at 328. But, under the California

rule, the court improperly reconsiders whether a taking has

occured at all through use of an additional standard: Whether

the illegal action was improperly motivated by a desire to delay

development. This is the improper analysis that the court below

conducted when it determined that the Loewensteins’ right to

just compensation was voided because the City-had legitimate

motivations for taking their property.

Under the lower court’s decision, even a land use

restriction that (1) denies all economically beneficial use of

property and (2) is therefore judicially declared to cause a

permanent taking if left in place will fall outside the window for

temporary regulatory takings compensation. Indeed, if the

lower court’s rule is correct, many (if not all) of the state

decisions that have awarded compensation for temporary

regulatory takings since First English are wrong because there

was no showing of illegitimate motive. See, e.g., Stelpflug, 612

N.W.2d at 707-08 (compensation awarded for temporary period

when land condemnation rescinded); Whitehead Oil Co. v. City

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

development permit gave rise to claim for compensation under

rationale of First English).

Unfortunately, the decision below was not an aberration in

California, but instead accurately represents views articulated

by the California Supreme Court in Landgate. See

Loewenstein, 103 Cal. App. 4th at 736 (“This case fits like a

hand in a glove with the rule established by [the California

Supreme Court in] Landgate.”).’ Thus, even as other state

> Like the decision below, Landgate holds that there is no right

(continued...)

6

courts have severely criticized Landgate’s creative use of the

“normal delay” language, see, e.g., Eberle, 595 N.W.2d at 742

n.25 (“the argument of the majority in Landgate was clearly

considered and rejected by the United States Supreme Court”),

California courts continue to aggressively apply it to deny

compensation for even the most textbook temporary regulatory

taking. Accord Lambert v. City and County of San Francisco,

120 S. Ct. 1549, 1551 (2000) (Scalia, J., dissenting from the

denial of certiorari).

“The expansion of the normal delay [statement in First

English] to include administrative appeals and prolonged

litigation . . . seems totally unwarranted. Indeed, this expansion

threatens to vitiate First English” and the constitutional right to

just compensation. Steven J. Eagle, Just Compensation for

Permanent Takings of Temporal Interests, 10 Fed. Cir. B.J.

485, 501 (2001). It is incumbent upon this Court to remind the

states that, until this Court says otherwise, the Just

Compensation Clause imposes monetary costs on

unconstitutional applications of the government’s land-use

discretion, regardless of whether the government persists with

such an application or reverses course when confronted with the

illegality of its actions. See First English, 482 U.S. at 321.

> (...continued)

to compensation when a court invalidates an illegal government

action that prevents all use of property during its effective

period unless the underlying decision was “so unreasonable

from a legal standpoint as to lead to the conclusion that it was

taken for no purpose other than to delay the development

project.” See Landgate, 17 Cal. 4th at 1024.

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CONCLUSION

For the foregoing reasons, the Court should grant the

Petition.

DATED: July, 2003.

Respectfully submitted,

J. DAVID BREEMER JAMES S. BURLING

GREGORY T. BRODERICK Counsel of Record

Of Counsel 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