# Amicus Curiae Brief — Kottschade v. City of Rochester

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1733%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 825

## Text

) | 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

IMANAGE 335588 v 10 051570001 Curr 07/16/03 11 00am

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1733%3A05. Public record. Not legal advice.