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

Supreme Court, U.S.

FILED

: a ?

REPRINTED COPY hii

No. 06-112

Supreme Court of the United States

HENRY TORROMEO AND MDR CORPORATION,

Petitioners,

V.

TOWN OF FREMONT, NEW HAMPSHIRE,

Respondent.

On Petition for Writ Of Certiorari To

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

BRIEF AMICI CURIAE OF

International Council of Shopping Centers (ICSC);

National Association of Industrial and Office Properties

(NAIOP); Real Estate Roundtable (RER) In Support of

Petitioners

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)

Of Counsel:

Betsy R. Laird

International Council of Shopping

Centers

1399 New York Avenue, N.W.

Suite 720

Washington, D.C. 20005

(202) 626-1400

Reba A. Raffaelli

National Association of

Industrial and Office Properties

2201 Cooperative Way

3" Flooi

Herndon, VA 20171-3034

(703) 904-7100

Roger Platt

The Real Estate Roundtable

1420 New York Avenue, N.W.

Washington, D.C. 20005

(202) 639-8400

i

TABLE OF CONTENTS

Page

SUMMARY OF ARGUMENT. ............cccccsccossossssersvesecesrons 2

load crasceecnnranisdsenstvsrosesssvoreeteoeeceesesveroe 5

I, In Light Of The Court’s Decisions In

Williamson County And San Remo, Only State

Courts Can Hear Federal Takings Claims

Unless The Respondent Local Government

Opts Under City Of Chicago To Remove The

SN BO POTEET CIUNT, oseresocsevsececevcccesenseocsesecereasosees 5

A. Williamson County Assured Ultimate

Disposition of Federal Takings Claims in

TE sallath heed li culitisiphiessescdetvvreveneiieetseoceek 5

B. San Remo Is Inconsistent With Williamson

County ’s Promise of Federal Court

Adjudication of Fifth Amendment Takings

IIL Noi tices dtticlihduiioundeveevouccouneieuerchooseeeets 11

II. The Court’s Decisions in Dolan and Lingle

Indicate That The “Shocks The Conscience”

Standard Should Not Apply In Substantive

Due Process Reviews Of Land Use Decisions. ........ 14

ITT 2. licsastncntectseogestiocenevestoceavervecesenssoeesies 20

ii

TABLE OF AUTHORITIES

Page

Cases

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)......c..ceccssessesesees 17

Agins v. City of Tiburon, 447 U.S. 255 (1980) ..........ceeee 19

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

Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461

CFE, See iisvsncorsncisrsiensasinbiusieticininsaaneisenhadiies 17

County of Sacramento v. Lewis, 523 U.S. 833 (1998)....... 15

DLX, Inc. v. Kentucky, 381 F.3d 511 (6" Cir. 2004)........... 6

Dodd v. Hood River County, 136 F.3d 1219 (1998)............ 8

Dodd v. Hood River County, 59 F.3d 852 (9" Cir. 1995)8, 9

Dolan v. City of Tigard, $12 U.S. 374 (1994) .......15, 19, 20

England v. Louisiana State Board of Medical Examiners et

OE STF Are Ee LE Wrcertncithiteisdtenitanieiphinnmnsaeal 10

Forseth v. Village of Sussex, 20 F.Supp.2d 1267 (E.D.

Wisc. 1998), aff'd in part, rev'd in part, 199 F.3d 363

et | RRR Clie Rranc ocean ee Eaten S 16

iil

TABLE OF AUTHORITIES (CONT’D.)

Page

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

F.3d 1355 (1999), cert. denied, 529 U.S. 1053 (2000)..17

Hadacheck v. Sebastian, 239 U.S. 394 (1915)....ccccsscceseeess 15

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

Ee I HUE sasenconesiiovintincirensicacatoniadiidabinnstipinies 17

Hoehne v. County of San Benito, 870 F.2d 529 (9" Cir.

SMD GAT DONC OUNCE MSEOP: ONDE tess ie EOE RUR EE 17

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 (1991)......... 17

Koscielski v. City of Minneapolis, 435 F.3d 898 (8" Cir.

Gis asvuciies tbiepsditsiiesccsimennshindeicuniinlasadanisialiensialaettes 9

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

2003), cert. denied 540 U.S. 823 (2003)................cccceeeee 7

Lingle v. Chevron U.S.A., 544 U.S. 528 (2005).....14, 19, 20

Nectow v. Ci'y of Cambridge, 277 U.S. 183 (1928)..........19

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987)

Owen v. City of Independence, 445 U.S. 622 (1980)......... 18

Penn Central Transportation Co. v. New York City (438

i % 2%, | CERES CE sdesisenidleabdesiihipaiiadaiauibiciiscdhculiiatuntionta 12

iv

TABLE OF AUTHORITIES (CONT’D.)

Page

Rapanos, et. al. v. United States, _U.S.__, 126 S.Ct.

Se ie basusiinsasivinersenseciitaiabatdapiiaiemsudaeiieuniia 16

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

FPO: FO sree ei oa 17

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

SOF Bits FAo Ce Recicherisecinctcunisberiscutevedandlins passim

Sandy Creek Investors, Ltd. v.. City of Jonestown, 325 F.3d

Set Ce PUP a 9

Santini v. Connecticut Hazardous Waste Management

Service, 342 F.3d 118 (2d Cir. 2003)............cesscsecessssoees 9

Schulze v. Milne, 849 F.Supp. 708 (N.D.Cal. 1994), aff'd in

part, rev’d in part on other grounds, 98 F.3d 1346

OO, FOO i ce 17

Southview Assocs. v. Bongartz, 980 F.2d 84 (2d Cir. 1992),

cert. denied, SOT US. FEF (EGGS), .cosecescssesssevsccssssssnecens 17

Torromeo, et al. v. Town of Fremont, New Hampshire, 438

58-915 00" Ce DOG iil cee nicidaiawiiions 14

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).......... 10

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

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

tage tO: SRROMRRMSipeeane SOS AR pein ea oa Nare ARR a 7

)

Vv

TABLE OF AUTHORITIES (CONT’D.)

Page

Williamson County Regional Planning Comm'n v.

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

Statutes

42 U.S.C. § 1983

Other Authorities

Berger, Michael & Kanner, Gideon, Shell Game! You

Can't Get There From Here: Supreme Court Ripeness

Jurisprudence in Takings Cases at Long Last Reaches

the Self-Parody Stage, 36 THE URB. LAW. 671 (2004) ..6,

12 ,

Berger, Michael, Choice of Forum: A Bit of Ripeness

History, ALI-ABA Land Use Institute Vol. II, Page 1407

(2006)

Blaesser, Brian, Closing the Federal Courthouse Door on

Property Owners, 2 HOFSTRA PROP. L.J. 73 (1988) .....18

Breemer, J. David, You Can Check Out But You Can Never

Leave: The Story Of San Remo Hotel—The Supreme

Court Relegates Federal Takings Claims To State Courts

Under a Rule Intended to Ripen The Claims For Federal

Review, 33 B.C. Envtl. Affairs Law Rev. 247

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

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

UrB. LAw. 195 (Spring, 1999) 18

vi

TABLE OF AUTHORITIES (CONT’D.)

Page

Kassouni, 7he Ripeness Doctrine and the Judicial

Relegation of Constitutionally Protected Property

Rights, 29 CAL. WESTERN L. REV. 1 (1992) ................. 18

Mandelker Testimony, 31 THE URB. LAW. 234, at 237

EL, ID ecniscsinsichnchiniphabininiulibbesinsehioacuepsiviontbabioradiaiaeds 8, 15

Meacham, Madeline J., The Williamson Trap, 32 THE URB.

Re scene CN ccattnassndiccacadincimddipinsicnbamakonenied 6, 7,8

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’L L. 91 (1994)............ 18

Rules

Rule 37.6 of the Rules of the Court ..............0......0..ccecceec eee l

INTERESTS OF THE AMICI CURIAE'

Written consent has been filed with the Clerk of the

Court allowing the amici listed herein to submit this brief in

support of the Petitioners.

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 Claims

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 uncompensatéd taking

as a result of government actions, can they ever vindicate

those types of federal constitutional claims in a federal

court?

Founded in 1957, the International Council of Shopping

Centers (ICSC) is the global trade association of the

shopping center industry. Its more than 61,000 members in

the U.S., Canada, and more than 80 other countries

represent owners, developers, retailers, lenders, and other

professionals as well as academics and public officials.

Shopping centers are America’s marketplace, representing

economic growth, environmental responsibility, and

community strength. ICSC supports strong protections for

property owners. Indeed, ICSC could scarcely exist

' 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 than the amici curiae, has made a monetary

contribution to its preparation or submission.

without the certainty provided by property rights and

property-related contractual rights.

The National Association of Industrial and Office

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

association for developers, owners, investors and other

professionals in industrial, office and mixed-use

commercial real estate. Founded in 1967, NAIOP

comprises 13,000+ members in 52 North American

chapters. NAIOP provides communication, networking and

business opportunities for all real estate professionals;

provides a forum for continuing education; and promotes

effective public policy, through its grassroots network, to

create, protect and enhance property values.

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 merabers 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 righis are violated.

SUMMARY OF AR NT

This case is about federal court access and procedural

fairness. The Court is not asked to decide whether Henry

Torromeo and MDR Corporation (“Petitioners”) must be

compensated for the taking that is alleged, but simply

whether that issue is ripe for resolution in federal court.

The Court’s decision in Williamson County Regional

Planning Comm'n v. Hamilton Bank of Johnson City, 473

U.S. 172 (1985), was clear in stating that Fifth Amendment

takings claimants who were required to use “state

procedures” to determine whether compensation was

available, and were denied relief, could then ask a federal

court to validate their federal takings claim. Nothing in

Williamson County warranted the conclusion that only state

courts could 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.

HéWever, initial expectations arising from Williamson

County were quickly dashed as zoning bodies and lower

courts across the country abused or misapplied the Court’s

decision by fabricating additional obstacles, such as

ripeness, claim preclusion and issue preclusion, to prevent

judicial review of the merits of a takings claim. These

actions have caused concrete deprivations of property

rights. Clearly, the Williamson County Court did not intend

that the doors of the federal courthouse be slammed shut

only on plaintiffs alleging a taking under the Fifth

Amendment, while (1) municipal defendants in such cases

retain the option of defending takings claims in either

federal or state court, City of Chicago v. Int'l College of

Surgeons, 522 U.S. 156 (1997), and (2) plaintiffs with other

4

constitutional claims are allowed reasonable and immediate

access to the federal courts.

As a result of the Court’s recent decision in San Remo

Hotel, L.P. v. San Francisco City and County, 545 U.S. 323

(2005), virtually all Fifth Amendment takings claims must

be brought in state courts. Expectations still lingering from

Williamson County that property owners could validate

their Fifth Amendment takings claims in federal court were

extinguished. Significantly, four concurring Justices in San

Remo suggest convincingly that Williamson County may

not have been correctly decided; that its requirement that

takings claimants must seek compensation in a state court

before bringing a federal takings claim in federal court may

be only a prudential requirement in the first place; and that

while state courts are competent to adjudicate federal

takings claims, there is no basis why such claims should be

“singled out to be confined to state court”. 545 U.S. at 342

(Rehnquist, C.J., concurring). Williamson County’s

ripeness requirement cannot be reconciled with San Remo,

nor can it be reconciled with the laws of issue and claim

preclusion.

Additionally, the Court of Appeals applied a “shocks

the conscience” standard of review in this Fifth

Amendment deprivation case. A proper understanding of

the extensive power of local governments over private

property and the pervasive impact of such power upon

constitutionally protected property rights would strongly

suggest that the shocks the conscience standard is

inappropriate in substantive due process review of local

government decisions in land use cases. The lower federal

courts are split on this issue.

For these reasons, it is imperative that certiorari be

granted.

ARGUMENT

I. IN LIGHT OF THE COURT’S DECISIONS IN

WILLIAMSON COUNTY AND SAN REMO, ONLY

STATE COURTS CAN HEAR’ FEDERAL

TAKINGS CLAIMS UNLESS THE RESPONDENT

LOCAL GOVERNMENT OPTS UNDER CITY OF

CHICAGO TO REMOVE THE CLAIM TO

FEDERAL COURT.

A. Williamson County Assured Ultimate Disposition

of Federal Takings Claims in Federal Court.

Before the Court decided San Remo, it was widely

believed that the Court in Williamson County contemplated

that citizens alleging Fifth Amendment regulatory takings

claims against a local government in a federal court could

return to the federal court after ripening their claim by

seeking compensation “through the procedures the state has

provided” for such purposes, 473 U.S. at 194. In

Williamson County, the applicable state procedure was an

action for inverse condemnation under Tennessee law, 473

U.S. at 196. The Court expressly held that a property

owner “cannot claim a violation of the Just Compensation

Clause” until it has used the [state’s] procedure and been

denied just compensation.” 473 U.S. at 195 (emphasis

supplied). The Court repeatedly stated that the owner’s

claim was “premature” and thus “not yet ripe” for

adjudication in a federal court “until” the state “fails to

provide adequate compensation for the taking.”

? Williamson County at 195. In describing the Justices clear intent that

the claimant evaid return to the federal court, the Court’s opinion

and concurring opizon used the word “premature” six times (at 473

U.S. 185, 195, 197, 199, 200, and 201) and “until” five times (at 186,

6

Williamson County left little doubt that a takings claim that

is unripe for adjudication in a federal court could later be

ripened for future adjudication in that court “after

disposition in the state court.’ Its phraseology created an

“expectation...that an unsuccessful state plaintiff will then

return to federal court.”

Practitioners and scholars have shared this view.”

Unfortunately, to the consternation of property owners,

attempts to follow Williamson County have not succeeded.

This has been due primarily to the confusion and chaos

arising in lower federal courts when weighing Williamson

County’s directives against doctrines of claim preclusion

(res judicata) as in the instant case, and issue preclusion

(collateral estoppel).°

As compellingly described in the Petition For A Writ of

Certiorari (“Petition”), the result has been what is often

195, and 197). The phrase “not yet ripe” was used both in the main

opinion (473 U.S. at 194) and in Justice Stevens concurring opinion

(473 U.S. at 203).

* Madeline J. Meacham, The Williamson Trap, 32 THE URB. LAW.

239, 249 (2000).

* DLX, Inc. v. Kentucky, 381 F.3d $11, 521 (6" Cir. 2004).

See, e.g., J. David Breemer, You Can Check Out But You Can Never

Leave: The Story Of San Remo Hotel—The Supreme Court

Relegates Federal Takings Claims To State Courts Under a Rule

Intended to Ripen The Claims For Federal Review, 33 B.C. Envtl.

Affairs Law Rev. 247, 283-284, n. 260 and accompanying text

(2006); hereinafter “You Can Check Out But You Can Never Leave.”

See generally Michael Berger, Choice of Forum: A Bit of Ripeness

History, ALI-ABA Land Use Institute Vol. II, Page 1407 (2006);

Michael Berger & Gideon Kanner, Shell Game! You Can't Get

There From Here: Supreme Court Ripeness Jurisprudence in

Takings Cases at Long Last Reaches the Self-Parody Stage, 36 THE

Urs. LAw. 671 (2004).

described as “the Williamson Trap.”’- Where as in this

case, property owners follow Williamson County by

seeking compensation in a state court in order to ripen their

federal claim and lose, that claim has instead been entirely

extinguished. Just as a federal takings claim filed “before

state court litigation” is “too early,” a federal claim brought

“after state litigation” [as here] is too late.*

The reaction of federal appellate courts to this

phenomenon has ranged from sympathetic rejection of the

property owners’ efforts to gain a hearing on the merits of

their federal claims, to almost callous disregard for their

predicament. For example in Kottschade v. City of

Rochester, 319 F.3d 1038, 1041 (8 Cir. 2003), cert. denied

540 U.S. 823 (2003), the Court of Appeals acknowledged

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 concluded

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

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

1041.

” Petition, pg. 8.

* Petition, pg. 8, citing Madeline J. Meacham, The Williamson Trap,

supra, Footnote 3. See also: Berger, Choice of Forum: A Bit Of

Ripeness History, supra, Footnote 6.

® Similarly, in Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d

1319, 1325 n.4, (10 Cir. 1998), the court in applying preclusion

doctrines to bar a takings claim, stated that Williamson County's

ripeness requirement may, in actuality, almost always result in

preclusion of federal claims . . . . It is difficult to reconcile the

ripeness requirement of Williamson County with the laws of [issue

anc claim preclusion]. Wilkinson, 142 F.3d at 1325, n.4.

8

Indeed, this was a problem that the distinguished

Professor Daniel R. Mandelker envisioned almost a decade

ago:

[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. '°

In Dodd v. Hood River County, 59 F.3d 852, 860-861

(9" Cir. 1995) (“Dodd I’), the Court of Appeals rejected the

County’s claim preclusion argument, stating:

[To] hold that a takings plaintiff must first present a

Fifth Amendment claim to the state court system ...

would be to deny a federal forum to every takings

claimant. We are satisfied that Williamson County

may not be interpreted to command such a

revoluntionary concept and draconian result.

However, in a subsequent appeal by the Dodds, Dodd v.

Hood River County, 136 F.3d 1219, 1224-1228 (1998)

(emphasis supplied) (Dodd IJ), the Ninth Circuit sprung the

Williamson County trap by holding that while the Dodds

could reserve their claim for federal court the reservation

doctrine did not enable them to “avoid preclusion of issues

actually litigated” in the state court.

‘Daniel R. Mandelker, Testimony Before House Judiciary

Committee, Sept 23, 1997, 31 THE URB. LAw. 234, at 251 (1999).

9

In Santini v. Connecticut Hazardous Waste

Management Service, 342 F.3d 118, 127, 130 (2d Cir.

2003), the Court of Appeals disagreed with the Ninth

Circuit’s decision in Dodd II, and attempted to implement

what it believed was the clear intent of Williamson County.

After finding that claim preclusion was _ inapplicable

because Santini could not have brought a Fifth Amendment

takings claim in an earlier state court action, the court

declined to apply issue preclusion, stating:

It would be both ironic and unfair if the very

procedure that the Supreme Court required Santini

to follow before bringing a Fifth Amendment

takings claim—a state-court inverse condemnation

action—also precluded Santini from ever bringing a

Fifth Amendment takings claim. (342 F.3d at 130).

However, the San Remo Court resolved the conflict

between Santini and Dodd II in favor of the more tortured

logic of Dodd II.''

Other federal courts have expressed few qualms about

dismissing federal takings claims for lack of jurisdiction

even in cases where the property owners filed their initial

suit in state court as directed by Williamson County, only to

be forced into a federal court by the local governments’

removal motions. See eg., Koscielski v. City of

Minneapolis, 435 F.3d 898, 903-904 (8" Cir. 2006); Sandy

Creek Investors, Ltd. v. City of Jonestown, 325 F.3d 623,

626 (5" Cir. 2003). The Amici share the concerns of the

Petitioners (Petition, page 16) that such practices are unfair,

far beyond the pale, and require intervention by the Court.

' San Remo, 545 U.S. at 326-327.

10

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 County and its progeny in lower federal courts.

Federal judges routinely cite Williamson County’s ripeness

requirements in rejecting takings claims.”

Three decades ago, in England v. Louisiana State Board

of Medical Examiners et al, 375 U.S. 411, 415 (1964),

Justice William Brennan stated:

There are fundamental objections to any conclusion

that a litigant who has properly invoked the

jurisdiction of a Federal District Court to consider

federal constitutional claims can be compelled,

without his consent and through no fault of his own,

to accept instead a state court’s determination of

those claims.

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.

—

"This is due primarily to the fact that they interpret Williamson

County's “siate procedures” language as requiring landowners to

first litigate their takings claims in state courts. As noted by Chief

Justice Kehnquist in his concurring opinion in San Remo, (545 US.

at 340), discussed infra in Argument IB, this is not at all clear.

11

B. San Remo Is Inconsistent With Williamson

County’s Promise of Federal Court Adjudication

of Fifth Amendment Takings Claims.

San Remo drastically modifies Williamson County's

promise of ultimate federal court adjudication of takings

claims. The Court characterizes the Hotel’s claimed right

“right to vindicate [its] federal claims in a federal forum” as

a mere “assumption,” 545 U.S. at 336, and in so doing has

created additional confusion. As discussed in Argument

IA, Williamson County has been understood to mean that

despite the requirement that a takings claimant first ripen its

claim in state court before it may proceed in a federal court,

the federal court would remain available for ultimate

adjudication of such a claim. To the contrary, San Remo

holds that “issues actually decided in valid state court

judgments may well deprive plaintiffs of the ‘right’ to have

their federal claims relitigated in federal court”. 545 U.S. at

336.'° Further, San Remo states that Williamson County’s

requirement that “aggrieved property owners must seek

compensation through the procedures the state has provided

for doing so does not preclude state courts from hearing

simultaneously a plaintiff's request for compensation under

state law and the claim that in the alternative the denial of

compensation would violate the Fifth Amendment of the

Federal Constitution.” 545 U.S. at 338.

San Remo has been heavily criticized. For example, its

statement that there is “scant precedent” for litigation in

"In their state court complaints the Petitioners made only a single

reference to tie Federal Takings Clause. They never had an

opportunity under New Hampshire law and First Circuit precedent to

litigate their Fifth Amendment claim in state court. See Petition, pgs.

3-4, 13-14, and particularly 19-20.

12

federal district courts of takings claims arising from actions

of state agencies (545 U.S. at 339) is strongly questioned by

one commentator:

“Between June 26, 1978--the date the Court decided

Penn Central Transportation Co. v. New York City

(438 U.S. 104) which provided the modern

regulatory takings test--and June 28, 1995--the date

the Court issued Williamson County--there were

approximately 141 federal district court cases

involving federal takings claims against regulation.

By contrast, there were just 109 similar state court

cases... In the period between 1992--the year

Pennsylvania Coal v. Mahon (260 U.S. 393) was

decided--and 1978, there were approximately 174

more instances of litigation in federal district court

of claims_that a state agency has taken property in

violation of the Fifth Amendment’s- takings

clause’ 914

The commentator concludes that, “thanks to San Remo, the

irredeemably flawed and unnecessary state procedures

requirement has conspired with preclusion to make federal

claims for just compensation federally homeless.”

'* Breemer, You Can Check Out But Y.xs Can Never Leave, supra, Note

5, 33 B.C. Envtl. Affairs Law Rev, 247, at-286-287. Similarly San

Remo’'s observation that “most” Supreme Court takings cases have

arisen from state courts since 1978 is challenged by the assertion that

the Court has taken 19 major cases arising from federal district

courts during this period, compared to only 14 from state courts. /d.

For an extended listing of other articles critical of Williamson

County's state compensation procedures requirement, see p. 248,

Note 3 of Mr. Breemer’s treatise.

'S Id. at 299. See also Berger and Kanner, supra, Note 6.

13

The late Chief Justice William Rehnquist, joined by

Justices O’Connor, Kennedy and Thomas, wrote a

concurring opinion in San Remo questioning whether

Williamson County was correct in demanding “that once a

government entity has reached a final decision regarding a -

claimant’s property, the claimant “must” seek

compensation in a state court before a federal takings claim

in federal court”. 545 U.S. at 340. The concurring opinion

suggests that this may be “merely a_ prudential

requirement,” and that neither “constitutional nor prudential

principles” required the claimant to embark upon such a

course. 545 U.S. at 340-341. Moreover the concurring

opinion questions why authority over federal takings claims

should be handed to state courts, based simply on their

“relative familiarity” with local land use decisions and

proceedings, while allowing plaintiffs who challenge

municipal land use regulations based upon the First

Amendment or the Equal Protection Cause to “proceed

directly to federal courts”. 545 U.S. at 341. The

concurring opinion notes that Williamson County's “state

litigation rule has created some real anomalies” justifying

revisiting the issue. One of these is the San Remo ruling

that litigants who do go to state court to seek compensation

“will likely be unable later to assert their federal takings

claims in federal court.” 545 U.S. at 342. The concurring

Justices then identify the central problem:

Williamson County all but guarantees that claimants

will be unable to utilize the federal courts to enforce

the Fifth Amendment’s . just compensation

guarantee. The basic principle that state courts are

competent to enforce federal rights and to adjudicate

federal takings claims is sound... and would apply

to any number of federal claims...But that principle

does ngt explain why federal takings claims in

14

particular should be singled out to be confined to

state court, in the absence of any asserted

justification or congressional directive. 545 U.S. at

342 (emphasis supplied).

Chief Justice Rehnquist thereupon acknowledges that he

joined the opinion of the Court in Williamson County, but

that further reflection and experience have led him to think

that:

[T]he justifications for its state-litigation

requirement are suspect, while its impact on takings

plaintiffs is dramatic. . . In an appropriate case, |

believe the Court should reconsider whether

plaintiffs asserting a Fifth Amendment takings claim

based on the final decision of a state or local

government entity must first seek compensation in

state courts. 545 U.S. 342.

The Amici respectfully submit that the Petitioners have

> “

presented Chief Justice Rehnquist’s “appropriate case” to

the Court.

Il. THE COURT’S DECISIONS IN DOLAN AND

LINGLE INDICATE THAT THE “SHOCKS THE

CONSCIENCE” STANDARD SHOULD NOT

APPLY IN SUBSTANTIVE DUE PROCESS

REVIEWS OF LAND USE DECISIONS.

In response to the Petitioners’ substantive due process

claim, the Court of Appeals in Torromeo, et al. v. Town of

Fremont, New Hampshire, 438 F.3d 113, 118 (1* Cir.

2006), held that there are “limits” when such claims arise

from “land use disputes” and thus, the Petitioner’s claim

that the Town’s actions have caused them harm was not

enough to “shock the conscience” of the court so as to rise

15

to the level of a “constitutional deprivation.” (/d.)'® As

‘noted in the Petition, lower federal courts are applying

different and conflicting due process standards to

deprivations of property. Several circuits — now joined by

the First Circuit — are using the shocks the conscience

standard without explaining why it is more appropriate than

the “rational relationship” test. (Petition, pp. 23-27).

The Amici agree that there is conflict among the circuits

which needs to be resolved by the Court, and submit that

the shocks the conscience standard should have no place in

evaluating deprivation of property claims arising from local

land use decisions. Local governments have been deeply

_involved in land use planning and regulation for nearly a

century, before the Court’s first decisions upholding local

zoning ordinances against due process challenges, and well

before the standard planning enabling acts in the 1920s.'’

This is far longer than their counterparts in the state and

federal governments whose meaningful experience didn’t

begin until the 1970s following passage of federal

environmental laws. An extensive, well-developed body of

jurisprudence regarding zoning, subdivision and numerous

related areas of land use is available to the courts.'* To this

'® As stated by the Petitioners, this Court has never applied the shocks

the conscience standard in a property rights case, but did use it in

County of Sacramento v. Lewis, 523 U.S. 833 (1998), a far cry from

the case at bar, which held that a police officer involved in an

automobile accident while engaged in a hot pursuit did not violate

the due process right to life of the decedent.

'” See e.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915); Village of

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Daniel R.

Mandelker, LAND USE LAW, 5" Ed., Sections 3.01-3.05, Lexis-Nexis

2003.

'® Compare e.g., Dolan v. City of Tigard, 512 U.S. 374, 390-391 (1994)

(where the Court relied upon decades-old precedents from’ several

16

day, primary responsibility for land use planning and

regulation remains vested in local governments. Each and

every week local governments take action on countless

numbers of building permits, still the Holy Grail of all

development approvals. More than any other level of

government, local governments usually have the final say

on how a specific parcel of land will ultimately be

developed and used. They wield enormous power and have

the most pervasive impact upon property rights. City of

Monterey v. Del Monte Dunes, Lid., 526 U.S. 687 (1999),

exemplifies how this power can be and often is abused.'”

While the property owners in City of Monterey ultimately

prevailed, the land use labyrinth they were forced to

navigate is by no means unique.””

states in developing the “rough proportionality” standard for

regulatory exactions), to Rapanos, et. al. v. United States, _ U.S.

___,» 126 S.Ct. 2208, (2006) (where federal agency interpretations of

“waters of the United States” and “navigable waters” continue to

defy consensus).

' In City of Monterey, the developer submitted 19 different site plans

and numerous applications over a period of years in a futile effort to

obtain approval. Nine years had elapsed between 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.

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 Evitor of LAND USE LAW AND ZONING DIGEST.

©The following cases involve 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), afd,

17

In view of the devasting impact that local zoning and

permitting actions can have on basic property rights, the

hostile and elitist attitude exhibited by some federal courts

when reviewing constitutional claims arising from these

actions is astonishing.”’ The message conveyed is that the

myriad local land use decisions — the decisions that most

often deprive citizens of their property — are not worthy of

federal constitutional review, no matter how implausible.”

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

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).

*! 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 (9" 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).

22 For example, in Lambert v. City and County of San Francisco, 529

U.S. 1045, 120 S. Ct. 1549, certiorari denied, (2000), the owners of a

58-unit hotel claimed that the imposition of a $600,000 “replacement

fee” as a condition of approval to convert 24 residential units in the

hotel to “tourist units” was a violation of the essential nexus and

18

These attitudes encourage agencies to make arbitrary

decisions and manipulate the process. _Intimidated

applicants are often ping-ponged from agency-to-agency, or

between agency and courts in a futile quest for a “final”

decision that is “ripe” for judicial review. This is

inconsistent with prior rulings of the Court that local

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

Section 1983 actions such as those in the instant case.”

The federal courts’ avoidance of takings claims is a

particular subject of analysis.”

rough proportionality requirements of Nollan and Dolan. The state

appellate court found no such violation, holding that the fact that the

planning commission “might have granted the permit upon payment

of $600,000 does not make its refusal to issue the permit into a

taking.” 529 U.S. at__, 120 S. Ct. 2t 1551 . Justices Scalia,

Kennedy and Thomas in dissent found this reasoning to be “so

implausible as to call into question the state court’s willingness to

hold state administrators to the Fifth Amendment standards set forth

by this tribunal,” and that “there is reason to believe that this may be

more than a local and isolated phenomenon.” /d. (citations omitted).

3 See, Owen v. City of Independence, 445 U.S. 622 (1980). In City of

Monterey v. Del Monte Dunes, Lid., 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 under all circumstances, its position is contrary to settled

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

4 See, Notes 5 and 6 supra. See also, 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 See eee

of Constitutionally Protected Property Rights, 29 CAL. WESTERN L.

REV. 1! (1992); Brian Blaesser, Closing the Federal Courthouse

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

Delaney and D. Desiderio, Who Will Clean Up The ‘Ripeness Mess'?

19

If the unique power of local governments over the use

of. land and the abuses thereof were properly understood,

few courts would apply the “shocks the conscience”

standard in a substantive due process analysis of a local

land use decision. Moreover, the Court in Dolan v. City of

Tigard, 512 U.S. 374 (1994), has already spoken in part on

this issue. Dolan articulated an elevated standard, the

“rough proportionality,” test (512 U.S. at 391), when

regulatory conditions or exactions are attached to a

development approval, while placing the burden of proof

upon the government — not the property owner — to show

that rough proportionality existed between the exaction and

the burden imposed by the development, 512 U.S. at 391.

Further, Lingle v. Chevron U.S.A., 544 U.S. 528, 544

(2005), clarified that the “substantially advances a

legitimate state interest test “espoused in Agins v. City of

Tiburon, 447 U.S. 255 (1980) (“Agins Prong I’) was

doctrinally untenable in takings cases. The Court further

ruled that Dolan and its companion case, Nollan vy.

California Coastal Comm’n, 483 U.S. 825 (1987), “are

better understood as involving a special application of the

‘doctrine of unconstitutional conditions,’” (544 U.S. at

547), namely that the government may not require a person

to give up a constitutional right when property is taken for a

public use “in exchange for a discretionary benefit

conferred by the government where the benefit has little or

no relation to the property,” 544 U.S. at 457.

Agins Prong I was originally promulgated based on

Neciow v. City of Cambridge, 277 U.S. 183 (1928), a due

_A Call For Reform So Takings Plaintiffs Can Enter The Federal

Courthouse. 31 THE URB. LAw. 195, 203-204 (Spring, 1999).

20

process case. Lingle suggests that due process standards

(including a means-ends test) rather than takings tests will-

be applied in future cases involving unconstitutional

conditions attached to development approvals, (544 U.S. at

542). In such cases, the rough proportionality test might be

appropriate. Again there would appear to be no need or

justification for applying the “shocks the conscience”

standard of review. Moreover, Lingle characterized both

Nollan and Dolan as involving dedications of property “so

onerous that outside the exactions context they would be

deemed per se physical takings” (544 U.S. 547), thus

obviating the need for substantive due process review, with

or without the “shocks the conscience” standard.

In summary as noted by the Petitioners, notwithstanding

the appellate court’s imposition of a harsh “shocks the

conscience” standard of review in this Fifth Amendment

deprivation of property rights case, no national standard yet

exists. Thus, clarification by the Court is much needed.

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