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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1216%3A6. Public record. Not legal advice.