Opposition Brief — Torromeo v. Town of Fremont, New Hampshire (No. 06-112)

Supreme Coun. US

FILED

A AUG 2 2 2006

No. 06-112. 00 oe

In the

Supreme Court of the Anited States

HENRY TORROMEO, et al.,

Petitioners,

V.

TOWN OF FREMONT, NEW HAMPSHIRE,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the First Circuit

BRIEF IN OPPOSITION

DoNALD E. GARDNER, Esquire

Counsel of Record

Donacp L. Smitn, Esouire

Devine, Micuimet & Brancu, P.A.

111 AMHERST STREET

Mancuester, NH 03101

(603) 669-1000

JoHN J. RYAN, Esquire

CASASSA AND RYAN

459 LaFAYeTTE RoapD

Hampton, NH 03842

(603) 926-6336

Counsel for Respondent

Becker Gallagher Legal Publishing, Inc. 800.890.5001

I.

II.

i

QUESTIONS PRESENTED

Do compelling reasons exist to review the First

Circuit’s dismissal of Petitioners’ federal takings

claims where the federal takings claims were asserted

and decided in the underlying state court action and

the First Circuit’s dismissal is completely consistent

with this Court’s recent decision in San Remo Hotel,

L.P. v. City and County of San Francisco, 545 U.S.

323 (2005)?

Do compelling reasons exist to review the First

Circuit’s dismissal of Petitioners’ substantive due

process claim in light of the fact that the standard

employed by the First Circuit is consistent with this

Court’s prior decisions, including its recent decision

in Cuyahoga Falls v. Buckeye Community Hope

Foundation, 538 U.S. 188 (2003)?

ii

TABLE OF CONTENTS

GIREas LeU FED 6 ose ke odds we we ees i

Aes Ce CARERS oo 2b eo AN aR POO il

Fees Ge RA PETE os ce vir eb Hc Re Se iv

ERP AUE 6b he ed 0:5 isle Aaleeae eee l

SEA TERN E OP Ti GA oe vc boo ee ES er 3

I. The First State Court Action ............. 3

II. Zhe Second State Court Action ........... 4

Ill. The District Court Decision ............. 6

IV. Jie Firat Cire Detinlon . ww a 7

REASONS FOR DENYING THE PETITION ....... 9

I. THE DISMISSAL OF PETITIONERS’

FEDERAL TAKINGS CLAIMS IS _ IN

ACCORD WITH GENERAL. PRINCIPLES

OF RES JUDICATA ANY) CONSISTENT

WITH THIS COURT’S DECISION IN SAN

RE 866 5 FA RULERS ee a ee 9

IJ. THE FIRST CIRCUIT APPLIED THE

CORRECT STANDARD WHEN IT

DISMISSED PETITIONERS’

SUBSTANTIVE DUE PROCESS CLAIMS .. 13

CAPR: oh ciiies okie oo ee Oe ee 17

lil

TER 2s BRE See a we FIALES bos elates Ib

iV

TABLE OF AUTHORITIES

CASES Page(s)

Burrows v. City of Keene,

The Aca PIO Ts TOE 65 OSTA AAG 11

City of Chicago v. Int’! Coll. of Surgeons,

Bee Te RT eee os Wi ee Se

County of Sacramento v. Lewis,

ee Ade CRUE sess S ele ee a 14

Cuyahoga Falls v. Buckeye Community Hope Foundation,

Fa Ce RO EOD os ines GO ee passim

Daniels v. Williams, 474 U.S. 327 (1986) ........ 14

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

A ae A I 5 PEN Ee es 7

First English Evangelical Lutheran Church v. Los Angeles

County,

WEE Ue SOO CEORED ec ps See eae ees 8,9

Lingle v. Chevron U.S.A., Inc.,

TEE A) .0i DOME oe ao RES 16, 17

Rochin v. California, 342 U.S. 165 (1952) ........ 14

San Remo Hotel, L.P. v. City and County of San Francisco,

FA AD, PEP LD ke LES ee eek passim

Sanderson v. Town of Candia,

Pa Bae IT CEs Pe). ee wees eee Fae

V

Torromeo v. Town of Fremont,

eT ND ie ae es Wet e aa es 6

Williamson County Reg’! Planning Comm’n v. Hamilton Bank

of Johnson City,

ae ae AU CO ees oe ee ae eo 12, 13

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES

U.S. Const. Fifth Amendmemt.............. passim

U.S. Const. Fourteenth Amendment ............. 6

prow remmunare Comet. Pt.,, Alt. 12....... ccc ewe 4

MMO le Siavacy wb cs Au oc Gee Sibi ea he et ]

I

INTRODUCTION

The Petition for Writ of Certiorari (the “Petition”) should

be denied because it fails to demonstrate “compelling

reasons” that warrant appellate review by this Court. See

Sup. Ct. R. 10. Petitioners first contend that the First Circuit

erred in dismissing their federal takings claims based on res

judicata because Petitioners never asserted a federal takings

claim in the state-court action. Petitioners’ position is directly

contradicted by the pleadings filed in the state-court action.

Indeed, Petitioners spent two pages in their state-court

complaint asserting takings claims based on the “Fifth

Amendment” with specific citation to federal law. What is

more, when the New Hampshire Supreme Court rejected

Petitioners’ takings claim, Petitioners filed a Petition for Writ

of Certiorari with this Court seeking review of their takings

claims under the Fifth Amendment Takings Clause. Finally,

Petitioners’ efforts to reconstrue the claims in the state-court

action are belied by the federal Complaint they filed in this

- matter, which expressly acknowledges that the purpose of the

State-court action was “to obtain just compensation for a

taking under the U.S. and New Hampshire Constitution.” It

is disingenuous, at best, for Petitioners to now claim that they

never asserted a federal takings claim in the state-court action.

Petitioners’ alternative contention that their federal takings

claims were not adjudicated because the claims were not ripe

is similarly without merit based on this Court’s recent

decision in San Remo Hotel, L.P. v. City and County of San

Francisco, 545 U.S. 323 (2005). In San Remo, this Court

held that state courts may hear a plaintiff's request for

compensation under state law simultaneously with an

alternative claim that the denial of compensation violates the

Fifth Amendment of the Federal Constitution. /d. Petitioners

asserted both state and federal takings claims and, as such, the

2

federal takings claims were ripe for adjudication. What is

more, even if Petitioners federal takings claims were not

barred by res judicata, they would be barred by issue

preclusion pursuant to San Remo. In San Remo, this Court

held that where state takings law is coextensive with federal

takings law and the state court concludes that no taking has

occurred under state law, a plaintiff’s subsequent effort to

bring a federal takings action in federal court is barred by

issue preclusion. Jd. As Petitioners acknowledge, New

Hampshire regards state and federal takings claims as

equivalent. See Sanderson v. Town of Candia, 787 A.2d 167

(N.H. 2001). The New Hampshire Supreme Court rejected

Petitioners’ takings claims. Pursuant to San Remo,

Petitioners’ efforts to revive those claims in federal court are

barred by issue preclusion.

Petitioners similarly fail to present compelling reasons for

this Court to review the First Circuit’s dismissal of their

substantive due process claims. The standard employed by

the First Circuit is consistent with this Court’s previous

rulings and consistent with the standards in other jurisdictions.

The First Circuit’s decision is also consistent with this Court’s

decision in Cuyahoga Falls v. Buckeye Community Hope

Foundation, 538 U.S. 188 (2003), in which this Court held

that the refusal to issue building permits pursuant to an

unconstitutional provision in a municipal charter does not

violate substantive due process. Petitioners have failed to

assert any basis for this Court to overturn the Cuyahoga Falls

decision.

In short, Petitioners have failed to establish that

compelling reasons exist for this Court to grant the Petition.

Accordingly, the Petition should be denied.

3

STATEMENT OF THE CASE

Respondent submits the following Statement of the Case

in order to clarify certain misstatements and/or omissions in

the Petition.

I. The First State Court Action

Petitioner Henry Torromeo (“Torromeo”) is the developer

of Mason’s Corner, a twenty-seven lot residential subdivision

m Fremont, New Hampshire (the “Town”). Pet. App. at

44a. The subdivision plan was approved by the Fremont

Planning Board and recorded in February 1997. /d.

Petitioner MDR Corporation (‘MDR”) is the developer of

Glidden Hill Estates, a fourteen lot subdivision also located in

Fremont. /d. at 22a. In 1999, the Town approved MDR’s

subdivision plan and MDR recorded the plan in the

Rockingham County Registry of Deeds. /d.

In March 1999, the Town adopted a growth control

ordinance (the “Ordinance”) which authorized the Fremont

Planning Board to limit the number of building permits issued

annually for the construction of residential units within the

Town. Pet. App. at 17a. Pursuant to the Ordinance, the

Town implemented a “Growth Control and Permit

Limitations,” which limited to 16 the number of building

permits that it would issue to property owners during the one-

year period between April 14, 1999, and April 13, 2000. Id.

Within that time frame, MDR requested fourteen permits to

construct single-family units at Glidden Hill Estates. Jd. The

Town issued only five permits and informed MDR that it

must wait until April 2000 before additional building permits

would issue for that development. /d. at 18a. Torromeo also

sought building permits for the five remaining lots at Mason’s

Corner. /d. The Town denied Torromeo’s request because

4

it had already issued the maximum number of building

permits for that year. /d.

In August 1999, Torromeo filed a petition for declaratory

judgment in the Rockingham County Superior Court, claiming

that because the Town approved his subdivision plan prior to

adopting the Ordinance, he was exempt from the provisions

of the Ordinance pursuant to New Hampshire law. Pet. App.

at 18a. The trial court agreed and ordered the Town to issue

the requested building permits. /d. The Town complied and

issued the five building permits to Torromeo. Jd.

MDR also filed a petition for declaratory judgment in the

same court. Pet. App. at 18a. MDR argued that the

Ordinance was invalid because the Town never legally

adopted a capital improvement program (“CIP”), which,

pursuant to New Hampshire law, is a prerequisite to-the

adoption of a growth control ordinance. Jd. The trial court

agreed, ruling that the Town failed to adopt a valid CIP and,

therefore, the Ordinance was invalid ab initio. Id. The New

Hampshire Supreme Court affirmed the decision on appeal.

Id. The Town then issued the requested building permits to

MDR. /d.

Il. The Second State Court Action

In March 2000, Petitioners filed separate lawsuits against

the Town in the New Hampshire Superior Court, seeking

compensation for the temporary taking of their property

during the period in which they were denied the building

permits. Pet. App. at 75a-83a. The state-court complaints

asserted that the Town’s conduct violated both the Fifth

Amendment of the United States Constitution and Pt. 1, Art.

12 of the New Hampshire Constitution and included more

than a page of citations to decisions by this Court defining a

5

property owner’s rights under the Fifth Amendment Takings

Clause. Jd. The cases were consolidated and, in March

2001, the trial court ruled that Petitioners were entitled to

recover damages for economic loss due to the Town’s

attempted enforcement of the Ordinance. Pet App. at 58a-

68a. The trial court subsequently awarded $71,600 to MDR

and $23,800 to Torromeo. Id.

The Town appealed the decision to the New Hampshire

Supreme Court. Pet. App. at 50a. In their joint brief,

Petitioners cited both the state and federal constitutions in

support of their view that the trial court had properly found

that they were entitled to compensation for the temporary

taking of their property. Pet. App. at 19a (“The Town, by

imposing the invalid Growth Ordinance, caused a ‘taking’ of

plaintiff's property violating their protected right to use and

enjoy their property as a fundamental right protected by both

our State and Federal Constitutions. . . .); /d. at 20a (“The

right to use and enjoy one’s property is a fundamental right

protected by both our State and Federal Constitution. The

Fifth Amendment of the United [States] Constitution provides,

‘nor shall private property be taken for public use without just

, »”

compensation’. ”).

The New Hampshire Supreme Court concluded that

Petitioners were not entitled to compensation and, therefore,

reversed the trial court’s damage award. Pet. App. at 43a-

49a. Specifically, the court held that while the Ordinance had

previously been declared invalid, Petitioners had not

demonstrated that the Ordinance was unconstitutional. /d. at

48a. The court went on to discuss the distinction between a

local ordinance that is uncw@sfitutional and one that is merely

unenforceable due to a procedural defect in its enactment. Jd.

It then noted that absent proof that the Ordinance was

unconstitutional, rather than merely procedurally flawed,

6

“this case presents merely the type of municipal error for

which judicial reversal of the erroneous action is the only

remedy.” Jd. Accordingly, the New Hampshire Supreme

Court held that Petitioners were “not entitled to damages, and

. . . their only remedy [was] issuance of the erroneously-

denied building permits.” Jd. at 48a-49a.

Petitioners then filed a Petition for Writ of Certiorari with

this Court (Docket No. 02-1507). Res. App. at lb. Again,

Petitioners relied upon the United States Constitution in

support of their view that they were entitled to compensation

from the Town for the temporary taking of their property. In

this regard, Petitioners identified the questions presented as

“Liability for Fifth Amendment Taking” and “Remedy for

Fifth Amendment Taking,” and identified the constitutional

provision at issue as the “Takings Clause of the Fifth

Amendment to the United States Constitution.” Res. App. at

2b-3b. In addition, the Petition stated that-“*Torromeo and

MDR each filed actions in the Rockingham County Superior

Court for a taking under the U.S. and (New Hampshire)

Constitutions.” Jd. at 10b (parenthetical in original). This

Court denied the Petition for Writ of Certiorari. See

Torromeo v. Town of Fremont, 539 U.S. 923 (2003).

Ill. The District Court Decision

Having been denied relief by both the New Hampshire

Supreme Court and this Court, Petitioners filed a three-count

Complaint against the Town in the United States District

Court for the District of New Hampshire, asserting claims

for: (1) violation of the Takings Clause of the Fifth and

Fourteenth Amendments of the United States Constitution; (2)

violation of Petitioners’ substantive due process rights; and

(3) violation of Petitioners right to equal protection. Pet.

App. at 29a-39a. The federal Complaint stated that the

7

purpose of the state-court action was “to obtain just

compensation for a taking under the U.S. and New

Hampshire Constitutions.” /d. at 34a, ¢ 21 (emphasis

added).

The Town moved to dismiss the federal Complaint on the

grounds that the claims were barred by res judicata and/or the

Rooker-Feldman doctrine. Pet. App. at 15a-16a. The

District Court dismissed based on Rooker-Feldman, holding

that Petitioners’ “federal lawsuit [was] little more than a

thinly disguised effort to reverse the New Hampshire

Supreme Court’s decision rejecting their claimed entitlement,

under the Fifth Amendment, to the damages for the temporary

‘taking’ of their real property.” Jd. at 22a. The District

Court alternatively held that the claims were barred by res

judicata because the Fifth Amendment claim was in fact

asserted and adjudicated in the state court proceeding, and the

due process and equal protection claims could have been

adjudicated in that proceeding. Jd. at 26a-29a.

IV. The First Circuit Decision

Petitioners appealed to the United States Court of Appeals

for the First Circuit. The First Circuit affirmed the District

Court’s dismissal of the federal takings claims on res judicata

grounds.’ Pet. App. at la-lla. The First Circuit rejected

' The First Circuit chose not to address the Rooker-Feldman issue

in light of its determination that dismissal was appropriate based on

res judicata and in light of this Court’s recent decision in Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005).

The Town asserts that the District Court’s dismissal of Petitioners’

claims based on the Rooker-Feldman doctrine was proper even after

this Court’s decision in Exxon Mobil.

8

Petitioners contention that they had not asserted federal

takings claims in the state-court action, finding that

[Petitioners] state-court complaint identified the

Takings Clause of the Fifth Amendment to the United

States Constitution as a basis for the cause of action.

The complaint also cited First English Evangelical

Lutheran Church v. Los Angeles County, 482 U.S.

304 (1987), a Supreme Court case interpreting the

Takings Clause. In addition, after losing in the New

Hampshire courts, [Petitioners] filed a writ of

certiorari with the United States Supreme Court

Claiming that the New Hampshire decision violated

their rights under the federal Takings Clause. These

filings demonstrate a federal takings claim was

actually litigated in the state-courtaction . . . Indeed,

[Petitioners] admitted as much in their federal

complaint which states that the state-court proceedings

were actions “to obtain just compensation for a taking

under the U.S. and New Hampshire Constitutions. ”

Id. at 7a. The First Circuit concluded that Petitioners had

asserted federal takings claims in the state-court action, that

those claims had been decided, and, accordingly, that

Petitioners were barred by res judicata from relitigating those

claims in federal court.

The First Circuit also affirmed the District Court’s

dismissal of Petitioners’ substantive due process and equal

protection claims.” Pet. App. at 9a-10a. The First Circuit

first recognized that a refusal to issue a building permit

? Petitioners have not appealed the dismissal of their equal

protection claims.

9

ordinarily does not implicate substantive due process. /d. at

10a. The First Circuit then concluded that in this case, the

Town’s decision not to issue building permits pursuant to an

ordinance that was later found to be procedurally defective

did not establish the use of government power for purposes of

oppression, did not shock the conscience, and was not legally

irrational. Jd. Accordingly, the First Circuit dismissed

Petitioners’ substantive due process claims on the merits. /d.

REASONS FOR DENYING THE PETITION

I. THE DISMISSAL OF PETITIONERS’ FEDERAL

TAKINGS CLAIMS IS IN ACCORD WITH

GENERAL PRINCIPLES OF RES JUDICATA

AND CONSISTENT WITH THIS COURT’S

DECISION IN SAN REMO

Petitioners first contend that the First Circuit erred by

dismissing their federal takings claims based on res judicata

because they never asserted federal takings claims in the state-

court action. This contention is directly contradicted by

Petitioners’ own state-court filings, including:

@ The state-court complaints which identify the

Takings Clause of the Fifth Amendment as a basis for

Petitioners’ claims and spend more than a page citing

this Court’s decision in First English in support of

their Fifth Amendment takings claimS. Pet. App. at

75a-83a.

@ Petitioners’ joint brief to the New Hampshire |

Supreme Court which cites both the state and federal

constitutions in support of their view that the trial

court properly found that they were entitled to

compensation for the temporary taking of their

10

property. Pet. App. at 19a (“The Town, by imposing

the invalid Growth Ordinance, caused a ‘taking’ of

plaintiff's property violating their protected right to

use and enjoy their property as a fundamental right

protected by both our State and Federal

Constitutions. . . . (emphasis added)); Jd. at 20a

(“The right to use and enjoy one’s property is a

fundamental right protected by both our State and

Federal Constitution. The Fifth Amendment of the

United [States] Constitution provides, ‘nor shall

private property be taken for public use without just

compensation’.” (emphasis added)).

@ Petitioners previous Petition for Writ of Certiorari

which identifies the Questions Presented as “Liability

of Fifth Amendment Taking” and “Remedy for Fifth

Amendment Taking,” and identifies the constitutional

provision at issue as the “Takings Clause of the Fifth

Amendment to the United States Constitution.” Res.

App. at 2b-3b. In addition, the Petition stated that

“Torromeo and MDR each filed actions in the

Rockingham County Superior Court for a taking under

the U.S. and (New Hampshire) Constitutions.” /d. at

10b.

The federal Complaint also confirms that Petitioners had

asserted Fifth Amendment takings claims as part of the state-

court action by stating that the purpose of the state-court

action was “to obtain just compensation for a taking under

the U.S. and New Hampshire Constitutions.” Pet. App. at

34a, 21 (emphasi. added). Petitioners current claims to the

contrary are without merit and do not establish a compelling

reason to grant the Petition.

1]

Petitioners alternatively argue that even if they did assert

federal takings claims in the state-court action, those claims

were not ripe for adjudication and, therefore, are not barred

by res judicata. Petitioners’ argument, however, directly

_ contradicts this Court’s recent decision in San Remo. In San

Remo, this Court held that state courts may hear a plaintiff's

request for compensation under state law simultaneously with

an alternative claim that the denial of compensation would

violate the Fifth Amendment of the Federal Constitution. San

Remo, 545 U.S. at 323. Petitioners asserted both state and

federal takings claims in the state-court action and, pursuant

to San Remo, the federal takings claims were ripe for

adjudication.

Furthermore, even if the Court were to accept Petitioners’

assertion that they did not assert federal takings claims or that

the claims were not ripe for adjudication, the claims are still

barred by issue preclusion pursuant to San Remo. In San

Remo, this Court held that where state takings law is

coextensive with federal takings law and the state court

concludes that no taking has occurred under state law, a

plaintiff's subsequent effort to bring a federal takings action

in federal court is barred by issue preclusion. San Remo, 545

U.S. at 323. As Petitioners acknowledge, New Hampshire

regards state and federal takings claims as equivalent. See

Sanderson v. Town of Candia, 787 A.2d 167 (N.H. 2001);

Burrows v. City of Keene, 121 A.2d 590 (N.H. 1981). The

New Hampshire Supreme Court rejected Petitioners’ takings

Claims. Pursuant to San Remo, Petitioners’ efforts to revive

those claims in federal curt are barred by issue preclusion

regardless of whether the féderal takings claims were either

asserted or ripe.

Petitioners next contend that certiorari is appropriate

because there is a conflict among the Circuit’s regardia> the

12

preclusive effect of a state-court’s adjudication of a takings

claim pursuant to Williamson County Reg’! Planning Comm’n

v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). As

explained above, to the extent that such a conflict existed, the

conflict was resolved by San Remo. San Remo makes clear

that state and federal takings claims may be brought

simultaneously in state-court actions. San Remo, 545 U.S. at

323. A plaintiff who chooses to assert state and federal

takings claims simultaneously, as Petitioners did in this case,

does so at his own risk and is barred by res judicata from

attempting to later relitigate his federal claims in the federal

courts. /d. San Remo also makes clear that, where state law

provides that state takings claims are coextensive with federal

takings claims, plaintiffs are barred by issue preclusion from

attempting to later relitigate their federal claims in federal

courts. /d. Plaintiffs, in short, have no right to have their

federal takings claims heard in a federal forum. Jd. San

Remo, therefore, resolved any split that existed among the

Circuits regarding the proper application of Williamson.

Petitioners next argue that appellate review is necessary

because the First Circuit’s decision potentially impacts their

right to a jury trial and is inconsistent with this Court’s

decisions concerning the removal of federal takings claims.

These issues are simply red herrings. Petitioners had a right

to a jury trial in the state-court action, Dut instead chose to

proceed with a bench trial. Petitioners, therefore, have no

basis to argue that the First Circuit’s decision deprived them

of aright to a jury trial. Petitioners’ contention that the San

Remo decision is inconsistent with this Court’s decision in

City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156

(1997) also is without merit. Petitioners cite City of Chicago

for the proposition that this Court has sanctioned the removal

of federal takings claims even where state takings remedies

have not been exhausted. The impact of Williamson was not

13

raised or addressed in City of Chicago and, in fact,

Williamson is not even mentioned in the decision. Petitioners’

suggestion that the City of Chicago decision is somehow. at

odds with San Remo and Williamson is based on a

misunderstanding and/or misrepresentation of the City of

Chicago decision. In any event, this case does not involve the

removal of a federal takings claim and Petitioners have no

basis to seek appellant review of a non-existent issue.

Finally, Petitioners argue that this Court should use this

case to re-visit the Williamson decision. This case is not the

appropriate vehicle for such review. Petitioners asserted

federal takings claims in the state-court action and, thus, made

the conscious decision to have both their state and federal

takings claims decided by the state court. By doing so,

Petitioners took themselves outside the Williamson decision.

Thus, even if the Court were to reconsider Williamson, the

result would be the same - Petitioners’ federal takings claim

still would be barred by res judicata. As a result, Petitioners

have failed to state a compelling reason for this Court to

reconsider Williamson.

If. THE FIRST CIRCUIT APPLIED THE CORRECT

STANDARD WHEN IT DISMISSED

PETITIONERS’ SUBSTANTIVE DUE PROCESS

CLAIMS

Petitioners claim that the Town’s decision not to issue the

requested building permits based on the provisions of a

procedurally defective ordinance constituted a violation of

their substantive due process rights. The First Circuit

concluded that this assertion alone was insufficient to establish

a substantive due process claim. In doing so, the First Circuit

held that

14

The doctrine of substantive due process does not

protect individuals from all governmental actions that

infringe liberty or injure property in violation of some

law. Rather, substantive due process prevents

governmental power from being used for purposes

of oppression, or abuse of government power that

shocks the conscience, or action that is legally

irrational in that it is not sufficiently keyed to any

legitimate state interest. Although we have left the

door slightly ajar for federal relief in truly horrendous

situations, the threshold for establishing the requisite

abuse of governmental power is a high one indeed.

Pet. App. at 9a. (emphasis added).

Petitioners now question whether the First Circuit

employed the correct standard in dismissing its substantive

due process claims. This Court, however, has consistently

held that a plaintiff must establish the existence of “egregious

and arbitrary government conduct” in order to state a valid

substantive due process claim. See Cuyahoga Falls v.

Buckeye Community Hope Foundation, 538 U.S. 188, 198

(2003) (applying “egregious and arbitrary government

conduct” standard to substantive due process claim in land-

use context); See also County of Sacramento v. Lewis, 523

U.S. 833, 846 (1998) (“[O]nly the most egregious official

conduct can be said to be ‘arbitrary in the constitutional

sense.’”); Daniels v. Williams, 474 U.S. 327, 331 (1986)

(holding that substantive due process serves to prevent

governmental power from being “used for purposes of

oppression”); Rochin v. California, 342 U.S. 165 (1952)

(articulating the “shocks the couscience” test as a basis for

substantive due process claim). The standard employed by

the First Circuit to dismiss Petitioners’ substantive due

15

process claims is completely consistént with the substantive

due process standard articulated in the above cases.

This Court’s decision in Cuyahoga Falls further confirms

that the First Circuit applied the correct standard and properly

dismissed Petitioners’ substantive due process claims. In

Cuyahoga Falls, the City of Cuyahoga (the “City”) passed a

site-plan ordinance authorizing Buckeye Community Hope

Foundation (“Buckeye”) to build a low-income housing

complex. Cuyahoga Falls, 538 U.S. at 191. A group of

citizens who opposed the project filed a formai petition

requesting that the ordinance be repealed or submitted to a

popular vote. Jd. at 192. Pursuant to the City’s charter, the

filing of the referendum petition stayed the site plan’s

implementation until the vote. /d. As a result, the City

refused to issue building permits to Buckeye while the

referendum was pending. /d. The voters eventually approved

the referendum and repealed the ordinance. Id. at 192-93.

Buckeye challenged the referendum in state court and the

Ohio Supreme Court determined that the referendum process

was unconstitutional. Jd. at 193. The City then issued the

building permits to Buckeye. Jd.

While the state litigation was pending, Buckeye filed a

federal suit asserting, inter alia, that the City’s refusal to issue

the building permits constituted a substantive due process

violation. Cuyahoga Falls, 538 U.S. at 193. The City

moved for summary judgment and the District Court granted

the motion on the grounds that the City’s refusal to issue the

building permits did not rise to the level of a substantive due

process violation. Jd. Buckeye appealed and the Sixth

Circuit reversed, holding that there was a “genuine issue of

material fact as to whether the City, by denying respondents

the benefit of the lawfully approved site plan, engaged in

16

arbitrary and irrational government conduct in violation of

substantive due process.” Jd.

The City appealed to this Court which reversed, finding

that the City’s “refusal to issue the permits while the petition

was pending in no sense constituted egregious or arbitrary

government conduct.” Cuyahoga Falls, 538 U.S. at 193. In

reaching this conclusion, this Court recognized that “[iJn light

of the charter’s provision that ‘[nJo such ordinance

{challenged by a petition] shall go into effect until approved

by a majority of those voting thereon’ . . . [the City’s

decision] not to issue the permits represented an eminently

reasonable directive.” Id.

In this case, Petitioners claim the Town attempted to

enforce an ordinance that turned out to be invalid because of

a procedural defect. As with the builder in Cuyahoga Falls,

Petitioners do not allege any facts to support their assertion

that the Town used its governmental powers for purposes of

oppression, engaged in conduct that shocks the conscience, or

acted in an otherwise egregious, arbitrary or irrational manner

when it decided not to issue the permits. The First Circuit,

thus, properly dismissed Petitioners’ substantive due process

claims in accordance with this Court’s previous decisions.

Petitioners attempt to circumvent Cuyahoga Falls by

arguing that this Court articulated a different standard for

substantive due process claims in the land-use context in

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).

Lingle, however, simply held that the “substantially advances

legitimate state interests” test is not the proper test for

determining Fifth Amendment takings claims. /d. at 545.

There is nothing in the Lingle decision that supports

Petitioners’ argument that this Court intended to alter its long-

standing precedents regarding the standards for establishing

17

a substantive due process violation. Petitioners arguments to

this effect constitute a misguided effort to manufacture a basis

for this Court to grant the Petition.

Im any event, the Lingle decision states that “(t]he

‘substantially advances’ formula suggests a means-end test: It

asks, in essence, whether a regulation of private property is

effective in achieving some legitimate public purpose. . . a

regulation that fails to serve any legitimate governmental

objective may be so arbitrary or irrational that it runs afoul of

the Due Process Clause.” /d. at 542 (emphasis in original).

The “substantially advances” formula, therefore, is a

restatement of the “egregious and arbitrary” formula that this

Court has consistently applied to substantive due process

claims. The First Circuit, thus, applied the proper standard

and properly dismissed Petitioners’ substantive due process

claim. Petitioners have failed to assert any compelling

reasons for this Court to review that decision.

CONCLUSION

Petitioners have failed to satisfy their burden of

establishing compelling reasons for this Court to grant the

Petition. Therefore, the Town respectfully requests that the

Petition be denied.

18

Respectfully submitted,

Donald E. Gardner, Esquire

Counsel of Record

Donald L. Smith, Esquire

Devine, Millimet & Branch, P.A.

111 Amherst Street

Manchester, NH 03101

(603) 669-1000

John J. Ryan, Esquire

Casassa and Ryan

459 Lafayette Road

Hampton, NH 03842

(603) 926-6336

Attorneys for Respondent

ib

APPENDIX

No.

In The

| Supreme Court of the United States

HENRY TORROMEO AND MDR CORPORATION,

Petitioners,

Vv.

TOWN OF FREMONT,

Respondent.

On Petition for Writ of Certiorari To

The Supreme Court of New Hampshire

PETITION FOR WRIT OF CERTIORARI

Duane J. Desiderio

Jon W. Luther

Thomas J. Ward

National Association of

Home Builders

1201 15" Street, NW

Washington, DC 20005

(202) 266-8200

Sumner F. Kalman

Counsel of Record

Thea S. Valvanis

147 Main Street, Box 988

Plaistow, NH 03865

(603) 382-4003

2b

QUESTIONS PRESENTED

1. Liability for _a Fifth Amendment Taking: When a

state’s highest court declares a growth control regulation

“invalid ab initio,” but a town had enforced that illegal

regulation in excess of its police powers against a specific

piece of property, is the town liable to the affected

property owner for a taking because it has failed to

“substantially advance legitimate state interests”? (Agins

v. City of Tiburon, 447 U.S. 255, 260 (1980)).

2. Liability for a Fifth Amendment Taking: Alternatively,

when a state’s highest court declares a growth control

regulation “invalid ab initio” but a town had enforced that

regulation against a specific piece of property, should that

illegal municipal conduct be considered under the

“character of government action” factor set forth in Penn

Central Transp. Co. v. City of New York, 438 U.S. 104,

124 (1.978), as one element to determine whether the

town is liable for a taking?

3. Remedy for a Fifth Amendment Taking: Does the

“self-executing character” of the Takings Clause compel

the payment of “just compensation” to an aggrieved

property owner for the time period in which a growth

control regulation, declared “invalid ab initio” by a state’s

highest court, was enforced against a specific piece of

property? (First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 315 (1987)).

3b

PETITION FOR WRIT OF CERTIORI

Henry Torromeo and MDR Corporation (“Petitioners”)

respectfully petition this Court for a writ of certiorari to

review the judgment of the Supreme Court of New

Hampshire, dated December 13, 2002. Appendix (“App.”) 1.

OPINIONS BELOW

The opinion of the Supreme Court of New Hampshire is

reported at 813 A.2d 389 (N.H. 2002). (App. 1-6.) Orders of

the New Hampshire Superior Court awarding Petitioners

monetary damages (App. 7-17), and finding liability on the

part of the Town as a matter of law for its land-use decisions

(App. 18-25), are, not reported.

JURISDICTION

The judgment of the New Hampshire Supreme Court was

entered on December 13, 2002. (App. I.) On February 12,

2003, Justice Sourer extended the time to petition for

certiorari to and including April 14, 2003. (App. 55.) The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Takings Clause of the Fifth Amendment to the United

States Constitution provides: “{NJor shall private property be

taken for public use without just compensation.” It is

applicable to the States through the Fourteenth Amendment,’

' See Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001), citing

Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897).

=. = 4b

which provides in pertinent part: “[NJor shall any State

deprive any person of life, liberty, or property, without due

process of law.”

Article 12, Part 1 of the New Hampshire Constitution, the

State’s corollary to the Takings Clause, provides in pertinent

part: “But no part of a man’s property shall be taken from

him, or applied to public uses, without his own consent, or

that of the representative body of the people.” (App. 39.)

This provision has been interpreted-to_require the payment of

compensation for a taking. Burrows v. Keene, 432 A.2d 15,

19 (N.H. 1981).

STATEMENT OF THE CASE

Three points need to be made at the outset. First, the key

fact in this case is that the Town of Fremont, New Hampshire

(the “Town”), has applied and enforced an illegal growth

control ordinance - so declared by the State’s highest court -

to inhibit otherwise legal development of Petitioners’ land.

Second, Petitioners do not dispute that the Town has a

legitimate interest to control growth. However, Petitioners do

contest the constitutionality of the Town’s actions when it

enforced an illegal law against them. Certiorari should be

granted to clarify that a municipality can violate the Takings

Clause when it enforces an illegal land-use law, which a court

declares was invalid from the start, and refuses to provide the

constitutionatremedy of “just compensation” promised by the

Fifth Amendment.

Third, the posture of this case is a challenge to

government action applying a land-use regulation to specific

parcels of land. This is not a facial challenge against the

constitutionality of an ordinance. Last term, the Court stated

Sb

that the specter of takings liability rises in as-applied cases

such as this one. See Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency, 535 U.S. 302, 334 (2002).

A. Petitioners’ Plans to Build 19 New Homes in

Fremont, New Hampshire.

Originally part of Exeter, New Hampshire until it was

incorporated in 1764, the Town of Fremont (the “Town”)

was first named “Poplin” after a prosperous mill town in

England.* In 1854, the Town was re-named in honor of John

C. Fremont, the first presidential candidate of the Republican

party, who lost to Democrat James Buchanan in the 1856

election. Today, Fremont is a bedroom community of

suburban Boston, a quiet town of neighborhoods that contain

large residential lots with homes built from the same

hardwood trees sustained since colonial times.

This case concerns two residential subdivisions in the

Town. Petitioner MDR Corporation owned a_ 14-lot

subdivision known as “Glidden Hill Estates.” Petitioner

Henry T orromeo owned the last five lots in a 27-lot

* See www.seacoastonline.com/living/fremont.htm (last visited

Apr. 8, 2003). Famous for its heavy growth of high quality

hardwoods, the English Crown had reserved the Town’s best trees

for ship masts, but the Townspeople spirited off the remainder of

the hardwoods to construct their homes and barns. Alarmed by the

timber harvests, the royal Governor dispatched a surveyor to

inspect the local mill for illegally cut mast trees. In 1734, the Mast

Tree Riot took place in the Town, where locals rebelled by cutting

down the tall trees prior to the surveyor’s arrival. The

Townspeople then later returned disguised as Indians and ambushed

ten of the surveyor’s troops. See www. newhampshire.com/pages/

histmarkerseacoast.cfm (last visited Apr. 8, 2003).

6b

subdivision known as “Mason’s Corner.” Both Petitioners

~ desired to build homes on their lots and then sell the improved |

parcels. The Fremont Planning Board had fully reviewed and

approved both projects to accommodate single-family homes.’

In March of 1999, the Town “adopted” the subject

Growth Control Ordinance (the “Ordinance”), which gave the

Planning Board authority to limit the number of building

permits for residential units. (App. 45-51.) On April 14,

1999, the Fremont Planning Board acted on this authority by

imposing “Growth Control and Permit Limitations” to restrict

the number of building permits that it would issue to property

owners during the year April 14, 1999, through April 13,

i 2000. (App. 52-53.)*

After the Ordinance’s effective date, the Planning Board

approved the Glidden Hill project and MDR requested six

building permits to construct single-family homes at the site.

The Town applied the Ordinance to MDR’s project, granted

only five permits, and told MDR it would have to wait at

> “Navigating the subdivision approval process in New Hampshire

is no small task. In accordance with zoning and subdivision

regulations, Petitioners were obligated to prepare perimeter

surveys, evaluate the topography of the property, perform high

intensity soil surveys, and develop fully engineered plans showing

all roadways and utilities. Additionally, Petitioners were required

to secure various state permits, including dredge and fill permits,

site specific permits, and curb cut permits.

* The Planning Board’s “Growth Control and Permit Limitations”

determined that a maximum of twenty-six (26) permits for

residential construction could be issued throughout the Town, in

the year from April 14, 1999 through April 13, 2000. (App. 52,

§2.). Once a permit was issued, a builder had only 30 days to

begin construction or else the permit would lapse. (App. 53, 4313.)

7b

least a year, until April 2000, at the earliest until additional

permits for Glidden Hill could issue. After the Town issued

only five permits, MDR applied for permits on the remaining

nine lots to fully build-out the subdivision, which the Town

also denied.

With regard to Mason’s Corner, Tc. zomeo personally

owned the last five remaining house lots in the 27-lot

subdivision. (He had previously built homes on and sold the

other 22 lots.) This project was recorded with the county and

eligible for building permits as of February 6, 1997 —- more

than two years before the Town adopted the Ordinance in

March 1999. Because plats were recorded prior to the

Ordinance, Mason’s Corner qualified as a vested subdivision

and was “exempt from all subsequent changes [in] zoning

ordinances...for a period of four years .... “ See RSA

674:39. (App. 43.) Nonetheless, when Torromeo applied for

building permits on the five remaining lots in September

1999, the Town ignored Mason Corner’s vested status and

refused to issue the permits because the maximum number of

approvals allowed by the Ordinance had been granted by that

time.

A builder with a buildiiag lot, but no building permits, is

denied use of his property. In addition to complying with all

subdivision requirements, both MDR and Torromeo had built

and paved the roads necessary to accommodate their plans, in

reliance on prior Town and state approvals. See supra n. 3.

Consequently, for roads alone, MDR spent over $225,

and Torromeo spent over $775,000 for their respective

projects. With unimproved lots valued at $85,000 each, both

MDR and Torromeo could not build, had nothing of value to

sell, and were not in a financial position to start over in

another community, because their capital was tied up in the

Town of Fremont.

8b

B. The New Hampshire Courts Decide That the

Growth Control Ordinance is “Invalid, Ab Initio, ”

and That the Town Must Issue Building Permits to

the Petitioners.

Ordinarily, it would have been acceptable for the Town to

deny Petitioners’ building permits for a period of time.

Except in this case there is a crucial distinction. The Town

denied the permits based on an Ordinance that was ultimately

deemed illegal by the New Hampshire courts, because it

lacked the statutory requirements to support a valid growth

control law.

After their respective building permits were denied, MDR

and Torromeo each filed suits against the Town for injunctive

relief to compel permit issuance. In the MDR suit, New

Hampshire Superior Court Justice Walter Murphy granted the

requested injunction in a decision dated December 27, 1999.

(App. 28-31.) He decided that the permits should have been

issued because the Ordinance was “invalid, ab initio” for

failure to meet requirements established by the New

Hampshire legislature. (App. 30.) The Town appealed to the

New Hampshire Supreme Court. On June 26, 2000, it

summarily affirmed Justice Murphy’s decision that the

Ordinance was “invalid, ab initio.” (App. 27.)

In a nutshell, the lower courts found the Ordinance illegal

because it was never supported by a validly enacted Capital

Improvement Program (“CIP”), a statutory prerequisite in

New Hampshire for any growth control ordinance. See RSA

674:22 (App. 42.) A CIP contemplates the orderly

—

> Or, “[f]rom the beginning.” Black’s Law Dictionary 4 (7" ed.

1999).

9b

construction of infrastructure projects like roads and sewers

to control the timing of growth and to accommodate the

community’s projected needs. Under New Hampshire law,

the local legislative body (known as the “Town Meeting”)

may regulate growth by authorizing the Planning Board “to

prepare and amend a recommended program of municipal

Capital improvement projects over a period of at least 6

years.” See RSA 674:5 (App. 41). To fully realize local

democratic processes and foster public input, New Hampshire

law directs that the Planning Board must publish a “warrant

article” that “distinctly state[s]” the “‘subject matter of all

business to be acted upon at theTown Meeting ....”° RSA

39:2. (App. 40.) Under New Hampshire law, therefore, the

Town was required to publish a warrant article informing the

public that the Planning Board would be preparing a CIP.

But the Town never published such a warrant providing

notice of the preparation of a CIP. As a result, the Town’s

citizens were deprived of a full and fair opportunity to speak

to the vital issue of how, when, and where their community

should grow. Without a valid CIP, the New Hampshire courts

decided that the Ordinance - which propped the Town’s

denial of Petitioners’ building permits - was “invalid, ab

initio” and never should have been enforced. (App. 27, 30.)’

° It has long been the law of [New Hampshire] that the purpose of

{the warrant] requirement is to inform the inhabitants of the

business upon which they are called to act in the meeting, to bring

before the town substantially and intelligently the subject with

which it has to deal.” Opinion of the Justices, 134 A.2d 281, 283

(N.H. 1957) (citations omitted).

7 Superior Court Judge Murphy rejected the Town’s position that,

at the end of its March 11, 1987 Town Meeting, a motion was

made to appoint a committee to study the development of a future

10b

Accordingly, on June 26, 2000, the’ Town issued the nine

remaining building permits to MDR so homes could be built

at Glidden Hill.

With regard to Mason’s Corner, while the Town denied

the building permits by color of the illegal Ordinance,

Torromeo never even had to contest the Ordinance’s statutory

validity. His case was simpler because his last five lots were

“vested” under New Hampshire statute, RSA 674:39 (see

App. 43), and by law were exempt from the permit

limitations of the Ordinance. Thus, on January 31, 2000,

Superior Court Justice Richard Galway determined that

building permits should issue for Mason’s Corner. (App. 32-

38.) The Town did not appeal this decision. Ultimately, in

February 2000, the Town issued the five permits enabling

Torromeo to build the last homes at Mason’s Corner.

C. Petitioners’ Takings Lawsuits in State Court for

Compensation.

Neither Torromeo’s nor MDR’s odyssey in the New

Hampshire courts was over yet. Although permits were

eventually issued to them, they had received no economic

damages for the losses they sustained while the Town applied

the illegal Ordinance to their respective properties. To obtain

the remedy of “just compensation” that the Fifth Amendment

makes available, Torromeo and MDR each filed actions in

Rockingham County Superior Court for a taking under the

U.S. and (New Hampshire) Constitutions.

CIP. The motion was made after the Town Meeting had already

considered 43 other published warrant articles under other

business. But not a single pre-published warrant notified the public

that a CIP would be addressed. (App. 30.)

11b

At the starto © takings phase of their suits, MDR and

Torromeo filed motions for summary judgment on the issue

of liability. On October 3, 2000, the trial Court initially

denied the motions in a one-sentence order. (App. 26.) The

trial court apparently accepted the Town’s argument that the

Ordinance was “merely” defective procedurally and the law

itself needed to be “unconstitutional” before a taking would

arise.

MDR and Torromeo then filed a “Request for Ruling of

Law,”* arguing that the Town’s refusal to issue building

permits in reliance on the “invalid, ab initio” Ordinance was

in and of itself an unconstitutional taking. On January 17,

2001, Superior Court Justice Kenneth McHugh reversed

himself. He now believed that an award of damages was

appropriate and Petitioners did “not have to. prove the

Ordinance is unconstitutional” to recover monetary ielief.

(App. 24.)

* This procedure is allowed by New Hampshire Superior Court

Rule 141 (parties may request “interlocutory orders...relative to

proceedings preparatory for a hearing on the merits”).