Amicus Curiae Brief — Kottschade v. City of Rochester

) | FILED

JUL 18 2008

No. 02-1848 OFFICE OF THE CLERK

In The

Supreme Court of the United States

FRANKLIN P. KOTTSCH ADE,

Petitioner,

V.

CITY OF ROCHESTER,

Respondent.

On Petition for Writ Of Certiorari To

The U.S. Court of Appeals for the Eighth Circuit

BRIEF AMICI CURIAE OF

The American Forest and Paper Association (AFPA); Building

Industry Legal Defense Foundation of Southern California

(BILDFSC); California Building Industry Association (CBIA);

International Council of Shopping Centers (ICSC); National

Association of Industrial and Office Properties (NAIOP);

National Association of Realtors (NAR); Real Estate

Roundtable (RER); Rochester (Minnesota) Area _ Builders

(RAB) In Support of Petitioner

JOHN J. DELANEY

Counsel of Record

LINOWES AND BLOCHER LLP

7200 WISCONSIN AVENUE

SUITE 800

BETHESDA, MARYLAND 20814

(301) 961-5115

Attorneys for Amici Curiae

(Additional Counsel Listed on Inside Cover)

eee

Of Counsel:

William R. Murray

American Forest & Paper

Association

1111 19" Street, N.W.

Suite 800

Washington, D.C. 20036

(202) 463-2700

David Smith

Building Industry Legal Defense

Foundation of Southern California

1330 S. Valley Vista Drive

Diamond Bar, CA 91765

(909) 396-9933

Nick Cammarota

California Building Industry

Association

1215 K Street

Suite 1200

Sacramento, CA 95814

(916) 443-7933

Melina Spadone

International Council of Shopping

Centers

1221 Avenue of the Americas

New York, NY 10020

(646) 728-3684

Reba A. Raffaelli

National Association of

Industrial and Office Properties

2201 Cooperative Way

3" Floor

Herndon, VA 20171-3034

(703) 904-7100

Ralph Holmen

National Association of

Realtors

430 N. Michigan Avenue

Chicago, IL 60611

(312) 329-8375

Roger Platt

The Real Estate Roundtable

1420 New York Avenue, N.W.

Washington, D.C. 20005

(202) 639-8400

Michael Quinn

Rochester Area Builders, Inc.

400 South Broadway

Suite 201

Rochester, MN 55904

(507) 536-0013

a

Il.

II.

CONCLUSION

TABLE OF CONTENTS

Federal Courts Should Review Takings

Claims Arising From Local Land Use Matters

Just As They Routinely Review Constitutional

Challenges Involving Other Actions of Local

Raga 6 IE ae eas Ea ER ane

In Light Of This Court’s Decision In City of

Chicago v. International College of Surgeons,

Takings Plaintiffs Must Be Able to Pursue

Their Claims in Federal Court Without First

Pursuing State Court Litigation. ....00.00..ccccceeeee.

Zoning Bodies and Lower Federal Courts

Across The Country Have Abused Williamson

To Fabricate Additional Hurdles Before a

Federal Court Can Assess The Merits Of A

PAI oo ossicdeh ieee nares chiantreaeiawieceeek

COSCO EOE EEE EEE EEE OLED OEE EOE ELE ES

PHHSHSHHEHHHEHEHEEEHHEEHEHEEEEERESEEE SORE EO EEE OEE EEEEEELELELES

re 7

eed 14

TABLE OF AUTHORITIES

Cases

2BD Ltd. P’ship v. County Comm'rs for Queen Anne's

County, 896 F.Supp. 518 (D.Md. 1995)... eee 19

Abington School Dist. v. Schemp, 374 U.S. 203 (1963) ....10

Agostini v. Felton, S21 U.S. 203 (1997) .ccvsvecscensnevivescarensas 10

City of Chicago v. International College of Surgeons, 522

U.S. 156 (9997) vsciscicicniciceeeeeeee a. 1, 12

City of Cleburne v. Cleburne Living Center, 473 U.S. 432

City of Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687

(1 999)........0+0ss.1s00sbiriivelstndgiasiepanan aaa 6, 14, 18, 19

Coniston Corp. v. Village of Hoffman Estates, 844 F.2d

461, 467 (7° Cir. 19GB) oscgicc cc 14

Dodd v. Hood River County, 136 F.3d 1219 (9" Cir. 1998)

cert denied, $25 US. 9i3 (100G i net necnemee 12

Dolan v. City of Tigard, 512 U.S. 374, 393 (1994) ........... 12

First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987). ...........ssseccoscssssesssees 16

Forseth vy. Village of Sussex, 20 F.Supp.2d 1267, 1272

(E.D. Wie. F9GG) css ssicsncscpcniieeeduesmnganeneen arenas 19

—— lt tt~—“‘COSSS

ill

TABLE OF AUTHORITIES (CONT’D.)

Page

Good v. United States, 39 Fed. Cl. 81, 101-103 (1997),

aff'd, 189 F.3d 1355 (1999), cert. denied, 529 U.S. 1053

IN OL onset Iu edi a ules shales vacbscsercasesccsncduanecteicn ccs 19

Healing v. California Coastal Comm'n, 22 Cal. App. 4"

OTe As PUN TIIG) ooiisicscscnssvvssvussssessansacsssevsceveavesescosees 19

Ne 14

Kaiser Development Co. v. City and County of Honolulu,

649 F.Supp. 926 (D. Hawaii 1986), aff'd, 898 F.2d 112

(9"" Cir. 1990), cert. denied, 499 U.S. 947 (3) 19

Kottschade v. City of Rochester, 319 F.3d 1038, at 1040 (8"

INSEE RR St ACTER 4,5, 6,14

Magda v. Benson, 536 F.2d 111 (6" Cir. 1976) ..ccccccceeseee 11

Owen v. City of Independence, 445 U.S. 622 (1980)......... 14

Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) .......... 16

River Park, Inc. v. City of Highland Park, 23 F.3d 164, 165

a ESSE TSS tn ae eee 14

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

a I We 0 OME Dy ssissvevenicivercssnescocvacsssdicenss 11, 16, 17

School District of the City of Grand Rapids v. Ball, 473

sec tess ssicikaba scia canis dsbesosshasasednencaae 10

Schulze v. Milne, 849 F.Supp. 708, 709 (N.D.Cal. 1994)..19

Selby v. City of San Buena Ventura, 10 Cal.3d 110........... 17

iV

TABLE OF AUTHORITIES (CONT’D.)

Page

Southview Assocs. v. Bongartz, 980 F.2d 84, 92 (2d Cir.

DN ssi csiecccnissiadnenicetausateiniienntie acaba telaacdilbar atti 19

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725

CUE Di seisicesiicticecevoedcncsoovnncsabs eset asanuioaeiesiawiaiornaaaaed 18

United States v. Crowell, 586 F.2d 1020 (4" Cir. 1978, cert.

OG, SOIT. FAP CAG OG ov csvcnsnsscivsssctsansaninrmeeansiiareets 1]

United States v. Dela Espriella, 781 F.2d 1432 (9" Cir.

PIE ass tiieiinicaieadniehcoieadkdsixarddepun anaeanaeaaaaE as 11

United States v. Dunn, 480 U.S. 294, 300 (1987).............. 1]

United States v. Kramer, 711 F.2d 789 (7" Cir.), cert.

IE, IT) Te. Fie et baie detscesniccvsancensisenintercameal 11

United States v. Michaels, 726 F.2d 1307 (3 Cir.), cert.

United States v. Terry, 702 F.2d 299 (2d Cir. 1983).......... 11

Village of Belle Terre v. Boraas, 416 U.S. 1, 7 (1974)....7, 9

Wallace v. Jaffree, 472 U.S. 38 (1985)... eeccceeeeeteees 10

Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319

OI IR disease ae ede 12, 13

Williams v. United States, 461 U.S. 931 (1983) ................ 11

Vv

TABLE OF AUTHORITIES (CONT’D.)

Page

Williamson County Regional Planning Comm'n y.,

Hamilton Bank of Johnson City, 473 U.S. 172, 195

Lp. RENN ar, beret ST 4,5, 6, 7, 12, 13, 14, 17

Statutes

2B U.S.C. § 144160)... .serseecsscnsrocercnseessevserecscvsanecouseesueces cn, 3

FAD UP icrnctoicn nae oe 14

Texts

Blaesser, Brian, Closing the Federal Courthouse Door on

Property Owners, 2 HOFSTRA PROP. L.J. 73 (1988)......15

Cobb, Rodney L., Land Use Law: Marred by Public Agency

Abuse, 3 Wash. U. J. L. & Pol’y 195 i, EIT 16

Delaney, John and Desiderio, Duane, Who Will Clean Up

The ‘Ripeness Mess’? A Call For Reform So Takings

Plaintiffs Can Enter The Federal Courthouse. 31 THE

URB. LAW. 195, 203-204 (Spring, 1999)..........000.... 15, 18

Kassouni, The Ripeness Doctrine and the Judicial

Relegation of Constitutionally Protected Property

Rights, 29 CAL. WESTERN L. REV. 1 CREE stcmiteaccus 15

Longtin, Avoiding and Defending Constitutional Attacks on

Land Use Regulations (Including Inverse

Condemnation), in 38B NIMLO MUNICIPAL LAW

PREVI BID TDS CITI oss ciccercnsiccsien ek 17

Mandelker Testimony, 31 THE URR. LAw. 234, at 251

SN, FOIE visscscisvvctisicachasnuniutee cee 8, 12, 13, 18

v1

TABLE OF AUTHORITIES (CONT’D.)

Page

Overstreet, Gregory, The Ripeness Doctrine of the Takings

Clause: A Survey of Decisions Showing Just How Far

Federal Courts Will Go to Avoid Adjudicating Land Use

Cases, 10 J. LAND USE & ENVT’LL. 91 (1994)...... 15, 16

INTERESTS OF THE AMICI CURIAE!

The parties have filed written consent with the Clerk of

the Court allowing the amici listed herein to submit this

brief in support of the Petitioner.

The amici are a coalition of trade associations whose

membership shares a common interest in the protection of

private property rights safeguarded by the Takings Claus of

the Fifth Amendment. Accordingly, the amici are

concerned with any judicial decision that calls into question

the “just compensation” remedy available under the U.S.

Constitution to its members. In this case, their interest is

heightened by the basic, fundamental, jurisdictional issue at

play: When their members suffer an uncompensated taking

as a result of government actions, can they ever vindicate

those types of federal constitutional claims in a federal

court?

The American Forest & Paper Association (AF&PA) is

the national trade association of the forest, pulp, paper,

paperboard, and wood products industry. It represents

approximately 125 member companies which grow, harvest

and process wood and wood fiber; manufacture pulp, paper

and paperboard products from both virgin and recovered

fiber; and produce solid wood products. The AF&PA is

also the umbrella for more than 60 affiliate member

associations that reach out to more than 10,000 companies.

' Pursuant to Rule 37.6 of the Rules of the Court, the

undersigned Counsel of Record certifies that he authored this

Brief in its entirety; that it was not written in whole or in part by

counsel for a party; and that no one, other inan the amici curiae,

has made a monetary contribution to its preparation or

submission.

AF&PA represents an industry that owns the majority of

commercial timberland in the United States, amounting to

over 50 million acres. Activity on this land is often subject

to government regulation.

The Building Industry Legal Defense Foundation

(“BILD”) is a non-profit corporation, organized and

existing under the laws of the state of California. BILD

represents and advocates on behalf of more than 1700

BIA/SC member companies (“Members”) in eight chapters

in Southern California, including landowners, developers,

home builders, building industry subcontractors, utility

providers, and business entities of all kinds. Members own

land subject to regulatory bodies with jurisdiction

throughout the region. The BILD Foundation’s mission is

to defend the legal rights of home and property owners.

BILD seeks to participate in regulatory, judicial and other

venues wherever critical legal and policy matters affecting

its members are at issue.

The California Building Industry Association (“CBIA”’)

is a non-profit mutual benefit trade association organized

under the laws of the State of California. CBIA represents

over 6,000 member companies who employ more than

500,000 people in the State of California. CBIA’s

members are responsible for the construction of more than

70% of all new homes built in the State of California

annually. Its members are involved in all aspects of the

planning and building and construction industry, including

working with local authorities in the planniny stages. Its

mission includes maintaining a stable right to private

property.

The missions of the International Council of Shopping

Centers (“ICSC”) are to advance the shopping center

industry and to promote its role in the commercial

distribution of consumer goods and services. Its members

have a strong interest in protecting private property rights

and in advocating the interests of the shopping center__-

industry before federal, state, and local governmental

bodies, as well as in the courts.

The National Association of Industrial and Office

Properties (“NAIOP”) is the nation’s leading organization

of developers, investors, and owners of commercial real

estate. NAIOP provides support and guidance to its over

11,000 members nationally to create, protect, and enhance

the value of commercial and industrial real estate, as well as

promote grassroots public policy related to real estate

development.

The National Association of Realtors (“NAR”) is a non-

profit association representing persons engaged nationwide

in all phases of the real estate business, including, but not

limited to, brokerage, appraising, management, and

counseling. NAR was created to promote and encourage

the highest and best use of the land, to protect and promote

private ownership of real property, and to promote

professional competence. Its members contribute to such

activities as promotion of equal opportunity in housing, real

estate licensing, neighborhood revitalization, safeguarding

real property rights, public service, and cultural diversity.

The Real Estate Roundtable (“RER”) is the organization

that brings together leaders of the nation’s top public and

privately-held real estate ownership, development, lending

and management firms with the leaders of major national

real estate trade associations to jointly address key national

policy issues relating to real estate and the overall

economy. Collectively, RER members hold portfolios

containing over 3.5 billion square feet of developed

property valued at more than $300 billion. The RER has

long advocated that the implementation of local, state and

federal laws be more sensitive to the constitutional property

rights of private citizens, and that adequate remedies be

available when those rights are violated.

The Rochester (Minnesota) Area Builders (“RAB”) is a

professional organization established in 1953 consisting of

businesses involved in the construction industry. As the

leader in the greater Rochester area construction industry,

its goal is to benefit its members in the professional growth

of their businesses and to support their legal rights through

participation, advocacy, education, and community

involvement. RAB also serves as a resource for its

community by providing education about quality building

practices.

SUMMARY OF ARGUMENT

This case is about court access and procedural fairness.

The Court is not asked to decide whether Frank Kottschade

must be compensated for the taking that is alleged, but

simply whether that issue is ripe for resolution in federal

court.

The Court of Appeals, relying upon Williamson County

Regional Planning Comm'n v. Hamilton Bank of Johnson

City, 473 U.S. 172, 195 (1985), affirmed the District

Court’s dismissal of Mr. Kottschade’s takings claim on the

ground that it was not ripe for decision in a federal court

until he had “unsuccessfully attempted to obtain just

compensation through the procedures provided by the state

for obtaining such compensation.” Kottschade v. City of

Rochester, 319 F.3d 1038, at 1040 (8" Cir. 2003). In so

doing, it declined to address the conflict between

Williamson and the Court’s decision in City of Chicago v.

International College of Surgeons, 522 U.S. 156 ( 1997).

The nature of that conflict is aptly stated in the Petition

(Questions Presented, Question 1). On the one hand, under

Williamson as interpreted by the Court of Appeals and

other federal courts, landowners seeking compensation for

regulatory takings must first sue in state court, but if they

do and are not successful, their attempts to return to a

federal court to validate their federal claims are frustrated

by doctrines of issue and claim preclusion. On the other

hand, City of Chicago affords municipal defendants in

regulatory takings cases the discretion and absolute right to

remove them to federal court, even though such a right is

limited only to cases where the plaintiff could have filed

suit in federal court in the first place (28 U.S.C. § 1441(a)).

Of course, as the lower courts have ruled herein,

landowners such as Mr. Kottschade are not permitted to sue

in federal court. Further, as stated in Question | of the

? In an unpublished Opinion found in the Appendix to the

Petition at page App. 9, The District Court described the

“threshold issue” as whether Plaintiff “must first seek

compensation through state procedures,” and ruled that in a

regulatory takings case “the State’s action is not ‘complete’ in

the sense of causing a constitutional injury ‘unless or until the

State fails to provide an adequate post-deprivation remedy for

the property loss’.” Jd. at App. 11, (D.Minn. 2002), citing

Williamson, 473 U.S. at 195. The District Court concluded that

until Kottschade seeks relief “in a state court inverse

condemnation action” and relief is thereafter denied, the claim of

taking without just compensation is not ripe for a decision by a

federal court and, accordingly, it lacked jurisdiction herein. /d.

at App. 17 (emphasis added).

Petition, the combination of Williamson and City of

Chicago gives municipal defendants “a veto power” over a

landowner’s 7" Amendment right to a jury trial. See, City

of Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687

(1999). The Court of Appeals, reflecting the concerns of

other federal appellate courts, acknowledges that Mr.

Kottschade’s arguments are “justly” stated; that the

combination of the state remedies exhaustion requirement

and the barriers to federal jurisdiction thereafter facing

compliant landowners “may be anomalous;” but concludes

that whether and how the problem should be addressed, “is

for the Supreme Court to say, not us.” Kottschade, at 1041.

With respect, the Court should accept this invitation.

Nothing in Williamson warrants the conclusion that only

state courts can be utilized as the forum for determining

whether an adequate post-deprivation remedy for a property

loss exists under state law. Federal courts routinely become

involved in reviewing actions of local governments in other

constitutional contexts, and the treatment of Fifth

Amendment takings claims should be no different. When

local land use decisions are challenged on takings grounds,

no basis exists to exclude federal courts from determining

whether compensation has been paid, or examining whether

“state procedures” for obtaining compensation from local

governments are adequate or have been exhausted.

In light of City of Chicago, takings plaintiffs must be

able to pursue their claims in federal court without first

pursuing state court litigation. Wéilliamson’s ripeness

requirement cannot be reconciled with the laws of issue and

claim preclusion. Thus, it is imperative that certiorari be

granted.

Zoning bodies and lower courts across the country have

abused or misapplied the Supreme Court’s decision in

J

Williamson by fabricating additional obstacles before a

court can assess the merits of a takings claim — causing

concrete deprivations of property rights. As a result, recent

research (discussed post at page 16) shows that over 80% of

takings claims have been denied or dismissed by USS.

District Courts on ripeness or abstention grounds. Nearly

two-thirds of those cases which were appealed to federal

appellate courts were dismissed on jurisdictional grounds.

Clearly, the Court could not have intended that the doors of

the federal courthouse are slammed shut only on plaintiffs

alleging a taking under the Fifth Amendment, while (1)

municipal defendants in such cases retain the option of

litigating in either federal or state court, City of Chicago,

and (2) plaintiffs with other constitutional claims are

allowed reasonable access to the federal courts.

ARGUMENT

I. FEDERAL COURTS SHOULD REVIEW

TAKINGS CLAIMS ARISING FROM LOCAL

LAND USE MATTERS JUST AS_ THEY

ROUTINELY REVIEW CONSTITUTIONAL

CHALLENGES INVOLVING OTHER ACTIONS

OF LOCAL GOVERNMENTS.

The “right of access to the courts” has been described

by this Court as a “fundamental right guaranteed by the

Constitution.” Village of Belle Terre v. Boraas, 416 U.S. 1,

7 (1974). Surely, this cannot mean that for citizens

asserting Fifth Amendment takings claims, _ this

fundamental right extends only to review by state courts.

Yet that is exactly what has happened in the wake of

Williamson and its progeny in lower federal courts. Federal

judges routinely cite Williamson’s ripeness requirements in

rejecting takings claims. This is due primarily to the fact

that they interpret Williamson’s second prong — requiring

SE SSE OT

utilization of “state procedures” to obtain just compensation

— as requiring landowners to litigate their takings claims in

state courts first. Nothing in Williamson warrants such an

interpretation.

Federal judges should review constitutional challenges

to local government actions in the land use area, just as they

review local government infringements upon other

privileges in the Bill of Rights. The exercise of

constitutional rights often hinges on traditionally local

issues. Yet, these highly insular concerns present no

barriers to federal court jurisdiction, except in the Fifth

Amendment context.

On October 14, 1997, Professor Daniel R. Mandelker of

Washington University of St. Louis, one of the leading

academics in the country on land use regulation (and an

advocate of the strong use of regulatory power), wrote a

letter to the Chairman of the Judiciary Committee of the

U.S. Senate, regarding this very problem.’ He cited

numerous examples of the extensive involvement of federal

courts in state and local constitutional issues, contrasting

them to the peremptory treatment often given to takings

claims. Beginning with cases involving encroachments by

local governments upon constitutional guarantees of

freedom of speech and religion, including decisions of the

Court, he noted that nothing in the First Amendment arena

3 See letter from Professor Mandelker to Senator Orin G. Hatch,

Chairman of the Senate Judiciary Committee, dated October 14,

1997, on file with Counsel for the Amici. Professor Mandelker

also testified before committees of the House and Senate on

these issues (hereinafter “Mandelker Testimony’). The

Mandelker Testimony has been reprinted in 31 THE UrB. LAw.

234 (Spring 1999).

Cy

requires a plaintiff to first litigate such “provincial matters”

in state court “before the doors of the federal courthouse are

unlocked.” Of course, federal court involvement in state

and local constitutional issues is by no means limited to

First Amendment cases. In emphasizing this point,

Professor Mandelker stated in part:

“In the land use venue, federal judges have shown no

hesitation to embroil themselves in household issues

such as “family values.” For example, in a

celebrated zoning case the Supreme Court stated that

“{a] quiet place where yards are wide, people are few,

and motor vehicles restricted are legitimate

guidelines in a land use project addressed to family

needs....It is ample to lay out zones where family

values, youth values, and the blessings of quiet

seclusion and clean air make the area a sanctuary for

people.” Village of Belle Terrev. Boraas, 416 U.S. 1,

9 (1974) . In Belle Terre, the Second Circuit

“startted] by examin[ing]” the subject zoning

ordinance’s validity with reference to “the interest of

the local community in the protection and

maintenance of the prevailing traditional family

pattern....”. 476 F.2d 806, 815 (2d Cir. 1973)

(emphasis supplied). |The federal courts also

considered the constitutionality of zoning as applied

to non-traditional families in City of Cleburne v.

Cleburne Living Center, 473 U.S. 432 (1985)

(invalidating Texas city’s denial of special use permit

for the operation of a group home for the mentally

retarded). In these cases, highly parochial matters

* October 14, 1997 letter from Professor Mandelker to Senator

Orin G. Hatch, Chairman, Senate Judiciary Committee.

10

were resolved on the merits by federal courts because

important constitutional rights were at stake. The

same result should obtain in the Fifth Amendment

context. Citizens should not be frozen out of federal

court when municipalities infringe upon

constitutionally-protected property rights.”

“Like land use, education is traditionally considered

an area of local and state concern. Yet the federal

courts have a long history of assessing the

constitutionality of state or local statutes or policies

dealing with education. See, e.g., Wallace v. Jaffree,

472 U.S. 38 (1985) (Alabama law requiring period of

silence in public schools “for meditation or voluntary

prayer”); School District of the City of Grand Rapids

v. Ball, 473 U.S. 373 (1985) (school district’s

program providing public instructional services for

religious education to non-public school students)

(overruled on other grounds, Agostini v. Felton, 521

U.S. 203 (1997); Abington School Dist. v. Schemp,

374 U.S. 203 (1963) (Pennsylvania statute providing

for Bible reading in public school). The point is that

initial state court consideration of state education

statutes is not a prerequisite to federal court

jurisdiction. Applications of municipal land use laws

in a manner that raises Fifth Amendment issues

should not be treated any differently.”

“Similarly, the federal courts have not hesitated to

address property issues to determine the Fourth

Amendment’s scope. For example, “the curtilage

concept [that] originated at common law to extend to

the area immediately surrounding a dwelling house

... plays a part in determining the reach of the Fourth

Amendment’”—and is freely decided by federal

1]

courts in the first instance. United States v. Dunn,

480 U.S. 294, 300 (1987) (barn located 60 yards from

home, not enclosed by a fence, was not within

curtilage and thus not protected by Fourth

Amendment). Indeed, federal judges have

preoccupied themselves with whether garbage, sitting

at the curb outside one’s home and to be picked up by

local trash collectors, warrants Fourth Amendment

protection.” In none of these cases was state court

litigation over the breadth of the Fourth Amendment

a necessary precondition to federal adjudication on

the merits. These cases bring to mind Justice

Brennan’s recognition that “if a policeman must

know the Constitution, then why not a planner?” San

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

621, 661 n. 26 (1981) (Brennan J., dissenting).’””

In light of the long involvement of federal courts in

constitutional issues arising across a wide spectrum of

purely local matters, no valid basis exists for discriminating

against citizens whose property rights under the Fifth

Amendment may have been violated by local land use

actions. If these citizens may only access state courts to

> See, e.g., United States v. Dela Espriella, 781 F.2d 1432 cg"

Cir. 1986); United States v. O’Bryant, 775 F.2d 1528 (11" Cir.

1985); United States v. Michaels, 726 F.2d 1307 (8" Cir.), cert.

denied, 469 U.S. 820 (1984); United States v. Kramer, 711 F.2d

789 (7"" Cir.), cert. denied, 464 U.S. 962 (1983); United States v.

Terry, 702 F.2d 299 (2d Cir. 1983), cert. denied sub nom.

Williams v. United States, 461 U.S. 931 (1983); United States v.

Crowell, 586 F.2d 1020 (4" Cir. 1978, cert. denied, 440 U.S. 959

(1979); Magda v. Benson, 536 F.2d 111 (6" Cir. 1976); United

States v. Mustone, 469 F.2d 970 (1* Cir. 1972).

© October 14, 1997, letter from Professor Mandelker to Senator

Orin G. Hatch, Chairman, Senate Judiciary Committee.

12

validate their claims, the Takings Clause has indeed

become a “poor relation” to other protections afforded in

the Bill of Rights.’ Professor Mandelker correctly

concluded that the “state exhaustion requirement” should be

removed “from the ripeness landscape,” because requiring a

plaintiff to seek compensation in State court:

“effectively drain[s] the ripeness rules of any

meaning. They prevent federal courts from ever

reaching the final decision issue because, under this

view, a takings plaintiff must seek compensation in

state court until that court clearly says it will not

entertain a compensation remedy.®

Il. IN LIGHT OF THIS COURT’S DECISION IN

CITY OF CHICAGO V. INTERNATIONAL

COLLEGE OF SURGEONS, TAKINGS |

PLAINTIFFS MUST BE ABLE TO PURSUE

THEIR CLAIMS IN FEDERAL COURT

WITHOUT FIRST PURSUING STATE COURT

LITIGATION.

The interplay of Williamson and City of Chicago, as

interpreted by the lower courts herein and other federal

courts,’ has elevated Williamson to a weapon of mass

obstruction against takings claimaints. The amici support

the Petitioner’s argument that a ludicrous situation now

exists, a “Catch 22” where, as a practical matter, a plaintiff

’ See Dolan v. City of Tigard, 512 U.S. 374, 393 (1994).

® Mandelker Testimony, 31 THE URB. LAW. 234, at 251 (Spring,

1999).

® See, e.g., Dodd v. Hood River County, 136 F.3d 1219 (9" Cir.

1998) cert denied, 525 U.S. 923 (1998); Wilkinson v. Pitkin

County Bd. of Comm'rs, 142 F.3d 1319 (10" Cir. 1998).

13

in a takings case may proceed only in state court, while the

local government retains the option of defending in either

state or federal court. As the Wilkinson court noted in

applying preclusion doctrines to bar a takings claim,

Williamson's ripeness requirement may, in actuality,

almost always result in preclusion of federal claims . .

. . It is difficult to reconcile the ripeness requirement

of Williamson with the laws of [issue and claim

preclusion].'°

Indeed, this was a problem that Professor Mandelker

envisioned in 1997:

[E]ven if the property owner strictly adheres to

Williamson County, her failure to raise a federal

constitutional claim in state court could destroy her

chances of ever having a federal judge address the

Fifth Amendment claim. I do not think that property

owners should be forced to litigate federal takings

claims in State court, yet this is the ironic effect of

the synergy between ripeness and res judicata.''

Unfortunately, that is precisely what has occurred in cases

since Professor Mandelker submitted his testimony. Mr.

Kottschade filed his valid takings claims in federal court

precisely because if he is forced to litigate them in state

court, he will never reach the U.S. District Court on the

merits of his case. The federal judge would simply invoke

claim or issue preclusion and thus bar federal adjudication.

The Court of Appeals below, echoing the concerns of the

Wilkinson court, acknowledges this “anomalous” reality,

0 Wilkinson, 142 F.2d at 1325, n.4.

'' Mandelker Testimony, 31 THE Urs. LAW. 234, at 251.

14

but expressly leaves it to this Court to resolve it.'? The

amici respectfully request the Court to do so.

Ill. ZONING BODIES AND LOWER FEDERAL

COURTS ACROSS THE COUNTRY HAVE

ABUSED WILLIAMSON TO _ FABRICATE

ADDITIONAL HURDLES BEFORE A

FEDERAL COURT CAN ASSESS THE MERITS

OF A TAKINGS CLAIM.

Although not directly germane to the issue raised by this

appeal, the hostility of federal courts to landowners’ takings

claims deserves comment. '° This hostility has conveyed a

message that local land use decisions are immune from

constitutional review.'* It has encouraged agencies to

2 Kottschade v. City of Rochester, 319 F.3d at 1041.

'5 Since Williamson, this hostility has become more pervasive,

and indeed has bordered on elitist at times. For example, even

though constitutional property rights issues were at stake, one

appellate court proclaimed that “federal courts are not boards of

zoning appeals.” River Park, Inc. v. City of Highland Park, 23

F.3d 164, 165 (7" Cir. 1994). Another, in dismissing a takings

claim, was concerned that it be perceived as “the Grand Mufti of

local zoning boards.” Hoehne v. County of San Benito, 870 F.2d

529, 532 (Ch Cir. 1989). Yet another characterized the takings

claim before it as merely “a garden variety zoning dispute

dressed up in the trappings of constitutional law.” Coniston

Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7” Cir.

1988).

'* This is contrary to prior Supreme Court rulings that local

governments are not immune from liability in 42 U.S.C. Section

1983 actions, such as the instant case. See, e.g., Owen v. City of

Independence, 445 U.S. 622 (1980). In City of Monterey v. Del

Monte Dunes, Ltd., 526 U.S. 687, 707 (1999), the Court rejected

this notion: “To the extent the city argues that, as a matter of

law, its land-use decisions are immune from judicial scrutiny

15

manipulate the development review process. Intimidated

applicants are ping-ponged from agency to agency or

between agencies and courts in an often futile quest for

those two illusory quarks, a “final” decision that is “ripe”

for judicial review. '°

Thus, it is not surprising that a recent survey of reported

federal takings cases between 1990 and 1998 indicates that

83 percent of takings cases with an opinion reported by a

U.S. District Court were dismissed on ripeness or

abstention grounds. Of those landowners who could afford

to bring an appeal, 64 percent still faced dismissal on

jurisdictional grounds. On the average, the minority of

property owners who received a determination that their

takings claims could be adjudicated on the merits endured

9.6 years — almost a decade — of negotiation and litigation,

just to get to this point.'®

under all circumstances, its position is contrary to settled

regulatory takings principles. We reject this claim ....”

'S The federal courts’ avoidance of takings claims is a common

subject of analysis. See e.g., Gregory Overstreet, The Ripeness

Doctrine of the Takings Clause: A Survey of Decisions Showing

Just How Far Federal Courts Will Go to Avoid Adjudicating

Land Use Cases, 10 J. LAND USE & ENvT’L L. 91 (1994);

Kassouni, The Ripeness Doctrine and the Judicial Relegation of

Constitutionally Protected Property Rights, 29 CAL. WESTERN L.

REV. | (1992); Brian Blaesser, Closing the Federal Courthouse

Door on Property Owners, 2 HOFSTRA PRopP. L.J. 73 (1988).

'° See J. Delaney and D. Desiderio, Who Will Clean Up The

‘Ripeness Mess’? A Call For Reform So Takings Plaintiffs Can

Enter The Federal Courthouse. 31 THE URB. LAW. 195, 203-204

(Spring, 1999). The survey actually understates the full extent of

the problem in that it includes a number of special situations in

which suit was legally required to be filed in federal court,

including three cases involving the Tahoe Regional Planning

16

In his famous “plurality dissent” in San Diego Gas and

Electric Company v. City of San Diego, 450 U.S. 621

(1981),"’ the late Justice William Brennan quoted the words

of a municipal attorney to illustrate the regulatory abuses

that can follow when finality and ripeness are misused by

agencies to game the system:'*

At the 1974 annual conference of the National

Institute of Municipal Law Officers in California, a

California City Attorney gave fellow city attorneys

the following advice:

“IF ALL ELSE FAILS, MERELY AMEND THE

REGULATION AND START OVER AGAIN. If

legal maintenance does not work, and you still

receive a claim attacking the land use regulation, or if

you try the case and lose, don’t worry about it. All is

not lost. One of the extra ‘goodie« contained in the

Agency (which under the operable compact can only be sued in

federal court), the City of Chicago case which was removed by

the City to federal court, the Resolution Trust case involving a

federal defendant, and several others. An earlier survey by

Gregory Overstreet indicated that over 90% of takings claimants

are turned away at the courthouse door. See Note 15.

'7 In San Diego Gas, a plurality of the Supreme Court, agreeing

with Justice Brennan, agreed for the first time since

Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) that an

overreaching police power regulation could effect a taking

requiring compensation. This was later confirmed in First

English Evangelical Lutheran Church v. County of Los Angeles,

482 U.S. 304 (1987).

'8 See also Rodney L. Cobb, Land Use Law: Marred by Public

Agency Abuse, 3 Wash. U. J. L. & Pol’y 195 (2000). Mr. Cobb

was, for many years, Staff Counsel for the American Planning

Association and was also Editor of LAND USE LAW AND ZONING

DIGEST.

17

recent [California] Supreme Court case of Selby v.

City of San Buena Ventura, 10 Cal.3d 110, appears to

allow the City to change the regulation in question,

even after trial and judgment, make it more

reasonable, more restrictive, or whatever, and

everybody starts over again .... See how easy it is to

be a City Attorney. Sometimes you can lose the

battle and still win the war. Good luck.” Longtin,

Avoiding and Defending Constitutional Attacks on

Land Use _ Regulations (Including _ Inverse

Condemnation), in 38B NIMLO MUNICIPAL LAW

REVIEW 192-193 (1975) San Diego Gas and Electric

Company v. City of San Diego, 450 U.S. 621, 655,

n.22 (1981) (Brennan, J. Dissenting) (emphasis in

original).

Abuses of the ripeness doctrine and its misapplication in

the wake of Williamson have been noted by other eminent

authorities. For example, an Amicus Curiae brief submitted

to the Supreme Court by the American Planning

Association (“APA”) on behalf of a defendant planning

agency in a takings case candidly recognized that current

ripeness rules

“invite[ ] local government to create a more

complicated and time consuming review and

approval process. It is, in fact, an open invitation for

some local governments to do _ mischief.

Unscrupulous officials can and often do easily assert,

after the fact, that they “would have been willing” to

consider an intensity of use or an alternative type of

use that the landowner never proposed. This is

plainly unfair and an abuse of [the ripeness

requirement] Brief Amicus Curiae of the American

Planning Association in support of Respondent,

be petit Neil MOH mie

A i, OT a CLE a ee ea les re, sce — nc A

18

Suitum v. Tahoe Regional Planning Agency, 520 U.S.

725 (1997)."°

Professor Daniel R. Mandelker, in testifying on

September 23, 1997, before the House Judiciary |

Committee, Subcommittee on Courts and _ Intellectual

Property, expressed his view of ripeness requirements with

respect to the Takings Clause as follows:

It is my opinion that, based on the nature of the

takings clause, property owners must first pursue

some negotiation with land use officials to determine

how far a regulation goes. However, I do not believe

that ripeness. barriers should’ be arbitrary,

insurmountable or labyrinthine.”””

City of Monterey v. Del Monte Dunes, Ltd., 526 U.S.

687 (1999) exemplifies the kind of labyrinthine case that

Professor Mandelker was talking about. The developer

submitted 19 different site plans and numerous applications

over a period of years in a futile effort to obtain approval.’

Each submission was designed to meet successively lower

density levels recommended by the planning board.

'" Mandelker Testimony, 31 THE UrB. LAW. 234, at 237 (Spring,

1999). Professor Mandelker was Of Counsel on the APA Brief.

When the APA learned that portions of its Amicus Brief to the

U.S. Supreme Court in Suitum would be cited by Professor

Mandelker, in his testimony to Congressional Committees, APA

President Eric Damian Kelly wrote to the Honorable Henry C.

Hyde, Chair of the House Judiciary Committee, on September

16, 1997, to “repudiate” these portions of its brief. See Note 3.

> Mandelker Testimony, 31 THE URB. LAW. 234, at 239 (Spring,

1999). See Note 3.

2! See J. Delaney and D. Desiderio, Who will Clean Up the

Ripeness Mess, at 16.

19

Ultimately, the City refused to allow any development and

a jury awarded compensation for a taking. Nine years had

elapsed from submission of the first plan to a lower court’s

decision that the claim was ripe, without ever reaching the

merits. Eight more years of litigation on the merits

followed before the Supreme Court reviewed the case.

While the property owners in City of Monterey ultimately

prevailed, the land use labyrinth they were forced to

navigate is by no means unique.”

2 Id. at 7-21. See, for example, the following cases involving

multiple submissions of development plans, and lengthy agency

reviews (often taking many years) culminating in dismissal of

court challenges on ripeness grounds. /d. at 7-21: Forseth v.

Village of Sussex, 20 F.Supp.2d 1267, 1272 (E.D. Wisc. 1998),

aff'd in part, rev'd in part, 199 F.3d 363, 366 (7" Cir. 2000);

Good v. United States, 39 Fed. Cl. 81, 101-103 (1997), aff'd, 189

F.3d 1355 (1999), cert. denied, 529 U.S. 1053 (2000); 2BD Ltd.

P'’ship v. County Comm'rs for Queen Anne’s County, 896

F.Supp. 518 (D.Md. 1995), aff’d following remand, 162 F.3d

1158 (4™ Cir. 1998); Schulze v. Milne, 849 F.Supp. 708, 709

(N.D.Cal. 1994), aff'd in part, rev'd in part on other grounds, 98

F.3d 1346 (9" Cir. 1996); Southview Assocs. v. Bongartz, 980

F.2d 84, 92 (2d Cir. 1992), cert. denied, 507 U.S. 987 (1993);

Kaiser Development Co. v. City and County of Honolulu, 649

F.Supp. 926, 940, 941 n. 19, 942 n. 21 (D. Hawaii 1986), aff'd,

898 F.2d 112 (9" Cir. 1990), cert. denied, 499 U.S. 947 (1991).

State courts often emulate federal courts regarding finality and

ripeness. A California state case typifies the situation that

landowners can confront when seeking development approvals

from state and local official, e.g., Healing v. California Coastal

Comm'n, 22 Cal. App. 4"" 1158 (Ct. App. 1994).

20

CONCLUSION

For the foregoing reasons, the Petition For Writ of

Certiorari should be granted.

Respectfully submitted,

JOHN J. DELANEY

Counsel of Record

LINOWES AND BLOCHER LLP

7200 Wisconsin Avenue - Suite 800

Bethesda, MD 20814-4842

(301) 961-5115

Fax (301) 654-2801

E-mail:jdelaney@linowes-law.com

Attorneys for Amici Curiae

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