Amicus Curiae Brief — MiPro Homes, LLC v. Mount Laurel Township, New Jersey (No. 06-1345)

FILED

(YY) JUN 5 - 2007

OFFICE OF THE CLERK

No. 06-1345 SUPREME COURT, U.S.

In The

Supreme Court of the Anited States

MiIPRO HOMES, L.L.C., AND BUILDERS LEAGUE OF SOUTH

JERSEY, INC.,

Petitioners,

Vz

MOUNT LAUREL TOWNSHIP,

Respondent.

On Petition For a Writ Of Certiorari To The Supreme

Court Of New Jersey

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF PETITIONERS

MARY LYNN PICKEL MICHAEL M. BERGER*

NATIONAL ASSOCIATION OF MANATT, PHELPS & PHILLIPS,

HOME BUILDERS LLP

1201 15" Street, N.W. *Counsel of Record

Washington. D.C. 20005-11355 West Olympic

Telephone: (202) 266-8200 Boulevard

Los Angeles, CA 90064-1614

Telephone: (310) 312-4000

Attorneys for Amicus Curiae

The National Association of Home Builders

EST AA TERA eS SENESCENT RCE Ae RNR RT RRS AERTS

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE.............ccccececceeeeee

SUMMARY OF ARGUMENT........cscccsscssesssesescovsosenes

I.

II.

IT.

EMINENT DOMAIN MUST BE BASED ON

SOUND PLANNING; OTHERWISE IT HAS

NO LEGITIMATE BASIG............00cccssssseserceees

MOUNT LAUREL ENGAGED IN NO

PLANNING BEFORE INITIATING EMI-

NENT DOMAIN; THE PROCESS WAS A

SHAM BUT THE NEW JERSEY SUPREME

COUIRFIEE CE PRIS BE series cccdscdpsdonivienbaionsunt ones

WHEN EMINENT DOMAIN IS SHOWN TO

BE BASED ONLY ON PRETEXT, AND NOT

ON ANY REAL PLANNING PROCESS, THE

JUDICIARY MUST - AS THIS COURT

PLAINLY CONCLUDED IN KELO - STEP

IN AND PROTECT THE PRIVATE PROP-

ERTY OWNERS FROM SHAM PROCEED-

TABLE OF AUTHORITIES

Page

CASES

99 Cents Only Stores v. Lancaster Redev. Agency,

237 F. Supp. 2d 1123 (C.D. Cal. 2001)...............-.sseseee 16

Agins v. City of Tiburon, 447 U.S, 255 (1980)......... cece 2

Babbitt v. Sweet Home Chapter of Communities for

@ Great Or., 615 U.S. 687 (19D5)......c.ccccccssrevcesesesceseesecese 2

Berman v. Parker, 348 U.S. 26 (1954) .........ccccceceseceeseeeeeoees 5

Board of County Comm'rs v. Lowery, 136 P.3d 639

re ns daisnaaanivastniceninwententebesiouniiie 13

Borden Ranch P’Ship v. U.S. Army Corps of Engi-

Ce Fk Ricki ecesiassssevenevsonceieuesnsveevseeeceueeens 2

C.ILR. v. Duberstein, 363 U.S. 278 (1960)..............:ceeseceees 11

City of Cuyahoga Falls v. Buckeye Cmty. Hope

NE, TI RTs, BI COG Prwiesssencsscnesivccnesvevesconeenenevrevies 2

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

CERES RRS RRR eee a eS 2, 13,14

City of Norwood v. Horney, 853 N.E.2d 1115 (Ohio

SEES ERS Sa Pe eee ee re 12

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......ceeeeeees 2

England v. Louisiana Medical Examiners, 375 U.S.

CREA IEE EER ee 11

First English Evangelical Lutheran Church ov.

County of Los Angeles, 482 U.S. 304 (1987) ........ 2,14, 15

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229

is aves havliinentosmedaeenesierenabcerunervesbensns 5

Kelo v. City of New London, 545 U.S. 469 (2005)......passim

i

TABLE OF AUTHORITIES - Continued

Page

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)........ 12

Lingle v. Chevron USA, Ltd., 544 U.S. 528 (2005)............. 2

Lucas v. South Carolina Coastal Council, 505 U.S.

SOE RN siinsccnsicnisscivscistnneatinrsieinieindsttndinatiansdspaiowaataainlens 2, 15, 16

MacDonald, Sommer & Frates v. Yolo County, 477

SUE ERIE sindnseccsicsinastenicniodscipbh daphcis tied iiedithilaneintipsabicid 2

Marbury v. Madison, 1 Cr. 137 (1803)............cccesereseseeeees 12

Mayor & City Council of Baltimore v. Valsamaki,

DED ee Se OO ED hitiiinchiiisienitiepcnivciindenrenicenin 13

National Assn. of Home Builders v. Defenders of

Pe es iii cain tecrndcee da eicinetencenemtsintnnisein 2

Nectow v. Cambridge, 277 U.S. 183 (1928) ..........ceeceeeeeees 11

Nollan v. California Coastal Commn., 483 U.S. 825

CT Picnics siceeschsstiech ecient aati adnan 2

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)............. 2,5

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(o_ + SEER cps mt ere con ae fein tnt ne mor aie 13, 15

Rhode Island Economic Dev. Corp. v. The Parking

Company, L.P., 892 A.2d 87 (R.I. 2006)..............cccceeeeee 12

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

SN OE re CN rshcikcsctitncianeoniasinscinientvenins 2

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

SA I CE eciicstisiccicsiclannteasiecinihcsoeeinenainebabadmuaaiiiaiaieiis 2

San Remo Hotel v. San Francisco, 545 U.S. 323

COUT Tccsceintestacndesicicsiettah tesa nheseeh icsiablelt uhthacdetiphatalinldacediboicipesnsdale 2

Solid Waste Agency of N. Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001)................eeeeeeees 2

lil

TABLE OF AUTHORITIES — Continued

Page

Southern Burlington County NAACP v. Township

of Mount Laurel, 336 A.2d 713 (N.J. 1975) ..........sccceeeee 9

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

ee iriiiiisons ictctiniiannsiaialeiatinnstictsietaanceddnbtnicdsctnanibdersinbies 2,5

Tahoe-Sierra Preservation Council v. Tahoe Reg.

Planning Agency, 535 U.S. 302 (2002)...............00+8 2,5, 15

Williamson County Reg. Planning Comm’n ov.

Hamilton Bank, 473 U.S. 172 (1985)...........scccsesccsssseeeere 2

Winger v. Aires, 89 A.2d 521 (Pa. 1952) ........ ee ecesessereeees 13

CONSTITUTIONAL PROVISIONS

ee I is iis ers ccntmieaneciabioeniieiiiannnbadiiion 1, 13,14

OTHER AUTHORITIES

Dana Berliner, Opening the Floodgates: Eminent

Domain Abuse In the Post-Kelo World (2006)..............++ 8

Brian W. Blaesser, Eminent Domain for Private

Gain? The Kelo v. City of New London Decision

and Aftermath, 57 Planning & Environmental

BAS Ee ee I ioiteribisnitsnpntcsetiivsnistitcrivccrvnnrecassones 6

Mark Pellegrini & Donald Poland Connecticut

Planners Weigh In: Eminent Domain I: Impor-

tant Land Use Tool, 57 Planning & Environ-

mental Law 8 (APA, Sept. 2005)..................sessssessssseseees 6

Timothy Williams, “Land Bought For Parks Often

Winds Up Luring Trash and Old Cars,” New

York Times, Aug. 12, 2006, p. C16. ............ccccccccceececeeees 9

lv

With the written consent of the parties filed with

the Clerk of the Court, the National Association of

Home Builders (NAHB) respectfully submits this brief

as amicus curiae.’

INTEREST OF AMICUS CURIAE

NAHB represents more than 235,000 builder and

associate members throughout the United States. Its

members include people and firms that construct and

supply single family homes, as well as apartment,

condominium, commercial, and industrial structures,

land developers, and remodelers. It is the voice of the

American shelter industry. It is — and historically has

been — vitally concerned with judicial decisions dealing

with government taking and regulation of property, with

a particular interest in this Court's interpretation and

application of the 5th Amendment.

NAHB and its members regularly grapple with

the complexities of competing demands for the use of

land and the impact of comprehensive planning and

eminent domain. NAHB is vitally concerned with the

proper use of both and the prevention of their abuse.

NAHB has appeared before the Court as an

amicus curiae or “of counsel” to property owners (and,

most recently, in its own name) in a wide variety of 5th

Amendment and real property cases. This participation

. Counsel for amicus curiae authored this brief in

whole and no other person or entity other than amicus, its

members or counsel have made a monetary contribution to

the preparation or submission of this brief.

1

began more than a quarter-century ago with Agins v.

City of Tiburon, 447 U.S. 255 (1980), and continued

with San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621 (1981); Williamson County Reg. Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985);

MacDonald, Sommer & Frates v. Yolo County, 477 U.S.

340 (1986); First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304 (1987); Nollan

v. California Coastal Commn., 483 U.S. 825 (1987);

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992); Dolan v. City of Tigard, 512 U.S. 374 (1994);

Babbitt v. Sweet Home Chapter of Communities for a

Great Or., 515 U.S. 687 (1995); Suitum v. Tahoe Reg.

Planning Agency, 520 U.S. 725 (1997); City of

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

Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Solid

Waste Agency of N. Cook County v. U.S. Army Corps of

Engineers, 531 U.S. 159 (2001); Tahoe-Sierra

Preservation Council v. Tahoe Reg. Planning Agency,

535 U.S. 302 (2002); Borden Ranch P’Ship v. U.S. Army

Corps of Engineers, 537 U.S. 99 (2002); City of

Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538

U.S. 188 (2003); S. Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95 (2004), Kelo

v. City of New London, 545 U.S. 469 (2005), Lingle v.

Chevron USA, Ltd., 544 U.S. 528 (2005), San Remo

Hotel v. San Francisco, 545 U.S. 323 (2005), and

National Assn. of Home Builders v. Defenders of

Wildlife, No. 06-340 (pending decision).

NAHB thus offers its experience in this field and

its national perspective in support of the Petitioners.

SUMMARY OF ARGUMENT

This Court's decision in Kelo v. City of New

London, 545 U.S. 469 (2005) provided only half an

answer to the question of what are the boundaries of the

concept of public use in eminent domain. It

demonstrated the breadth of interests encompassed

within that term. But both the majority opinion (545

U.S. at 487) and Justice Kennedy’s concurring opinion

(545 U.S. at 493) made clear that the Court understood

the potential for governmental abuse and assured that the

judiciary would be capable of dealing with abuse of the

power of eminent domain when it arose.

If the Court had been actively searching for a case

to provide the other half of the answer — to provide the

bookend that shows where government may not go —

this would be the ideal case. This is a case in which the

condemning agency plainly went too far. It acted

without the careful planning this Court saw in Kelo and,

as New Jersey’s appellate courts conceded, condemned

MiPro’s property without a plan at all. To date,

however, the judiciary is not fulfilling this Court’s

promise in Kelo to guard against such abuse. The New

Jersey Supreme Court upheld a taking that has only the

flimsiest pretense of a public use. If that is legally

acceptable, then there is no restriction at all and no 5th

Amendment protection for property owners.

It is important for the Court to take this

opportunity while Kelo is still an event of recent

memory to demonstrate that there is a public use

restriction on the power of eminent domain, and to

reassure the public that possession of power is no excuse

fc. »ousing it.

I

EMINENT DOMAIN MUST BE BASED ON SOUND

PLANNING; OTHERWISE IT HAS NO

LEGITIMATE BASIS.

When it decided Kelo, this Court made clear that

its decision was based on what it viewed as

comprehensive, well studied planning by the

municipality. It was only in the context of such

planning that the Court upheld the city’s action:

“The City has carefully formulated an

economic development plan that it believes

will provide appreciable benefits to the

community.... As with other exercises with

urban planning and development, the city is

endeavoring to coordinate a variety of

commercial, residential, and recreational uses

of land, with the hope that they will form a

whole greater than the sum of its parts... .

Given the comprehensive character of the

plan, the thorough deliberation that preceded

its adoption, and the limited scope of our

review, it is appropriate for us . . . to resolve

the challenges . . . in light of the entire plan.”

(Kelo, 545 U.S. at 483-484; emphasis added.)

That, indeed, had been the position urged on the

Court by the American Planning Association (APA), the

organized voice of the nation’s land use planning

professionals. That association urged the Court to

uphold New London’s actions because of the protections

afforded to individuals by a comprehensive planning

process. As the APA brief put it, “eminent domain is

exercised only in conjunction with a process of land use

planning that includes broad public participation and a

careful consideration of alternatives to eminent domain.”

(Kelo, Amicus Curiae Brief of APA, et al., p. 25.)

_ The primary cases forming the basis for Kelo also

firmly rooted their holdings in comprehensive planning,

either for urban renewal in a large, run-down area of

Washington, D.C. (Berman v. Parker, 348 U.S. 26

[1954]) or to rectify the semi-feudal land tenure

alrangements prevailing in Hawaii (Hawaii Housing

Auth, v. Midkiff, 467 U.S. 229 [1984]).

In recent years, the Court has embraced the view

(consistently urged by APA and unchallenged by other

litigants) that good land use planning is a good idea that

should be encouraged. (See, e.g., Tahoe-Sierra

Preservation Council v. Tahoe Reg. Plan. Agency, 535

U.S. 302, 339 [2002] [“interest in facilitating informed

decisionmaking by regulatory agencies”]; Palazzolo v.

Rhode Island, 533 U.S. 606, 620-621 [2001]; Suitum v.

Tahoe Reg. Plan. Agency, 520 U.S. 725, 736 [1997].)

But it is more than that. In the eminent domain

context, good comprehensive planning provides property

owners with the protection of knowing that their land

will not be taken on a municipal whim,’ that any

resolution authorizing the forced conversion of private

property into public property will be preceded by careful

study, public hearings, and a fair opportunity for all

community voices to be heard — including the voices of

the affected property owners.’ That is the consensus

view of those commentators who have defended Kelo* in

the teeth of sharp criticism and concern expressed by

people who fear, as Justice O’Connor put it, that local

government can now “replac[e] any Motel 6 with a Ritz-

Carlton, any home with a shopping mall, or any farm

with a factory.” (Kelo, 545 U.S. at 503 [O’Connor, J.,

dissenting].)

" “Nor would the City be allowed to take property

under the mere pretext of a public purpose... .” (Kelo, 545

U.S. at 478.)

‘ “The takings before us . . . would be executed

pursuant to a ‘carefully considered’ development plan”

(Kelo, 545 U.S. at 478) in which “(t]he city complied with

elaborate procedural requirements.” (/d. at 493 [Kennedy, J.

concurring].)

. See, e.g., Mark Pellegrini & Donald Poland,

Connecticut Planners Weigh In: Eminent Domain Is

Important Land Use Tool, 57 Planning & Environmental

Law 8, 9 (APA, Sept. 2005) (use of eminent domain “should

only occur after there is a rigorous, open, and fair public

planning process”); Brian W. Blaesser, Eminent Domain for

Private Gain? The Kelo v. City of New London Decision

and Aftermath, 57 Planning & Environmental Law 3,5 (APA,

Sept. 2005) (emphasizing that “the record below evidenced

the comprehensive character of the economic development

plan”).

Plainly, this Court recognized that abuses of the

eminent domain power could occur, but viewed them as

“aberrations” with which the courts could deal — indeed,

noting that courts in the past had scrutinized such abuses

with “a skeptical eye.” (Kelo, 545 U.S. at 487, n. 17.)

Such problems, said the Court, “can be confronted if and

when they arise.” (Jd. at 487.) Or, as Justice Kennedy

put it, although Kelo was not in the suspect group, “there

may be categories of cases in which the transfers are so

Suspicious, or the procedures employed so prone to

abuse, or the purported benefits are so trivial or

implausible” that the courts ought to deal with them.

(Id. at 493 [concurring opinion].)

The problem is that Kelo provided lower courts

with no guidance as to the location of the nether end of

the public use spectrum, i.e., the point at which broad

deference to local decisions ends and the “skeptical eye”

comes into play. This case is the proverbial poster child

for the out of bounds marker. This Township engaged

in no planning. This Township had no specific use in

mind when it condemned the MiPro property. In stark

conflict with its own planning and zoning regulations,

this Township acted solely to stop a residential

development that had been properly approved through

the Township’s own process. And it did so while giving

a wink and a nod to the judiciary, noting that it

possessed the power to condemn for “open space” even

though it had no plans or studies identifying this

property as necessary or even useful as open park land

while its avowed intent was merely to stop MiPro’s

approved residential development.

The trial court saw through the pretext,

“confronted” it as this Court advised in Kelo, and struck

it down. And yet two layers of New Jersey appellate

courts thereafter held that this abject failure of planning

was sufficient to fit within the Kelo matrix, validating

the worst nightmares of those who saw Kelo as allowing

cities to do virtually anything they choose.

This Court needs to take a stand. Now. Firmly.

It needs to show the lower courts that it did not intend

Kelo to loose a deluge of condemnations that have no

basis in fact.”

Il

MOUNT LAUREL ENGAGED IN NO PLANNING

BEFORE INITIATING EMINENT DOMAIN; THE

PROCESS WAS A SHAM BUT THE NEW JERSEY

SUPREME COURT UPHELD IT.

What happened in Mount Laurel was not

planning; it was its antithesis. Indeed, it is the

paradigmatic illustration of the absence of planning. To

the extent that this Township engaged in planning, the

planning supported MiPro’s residential development,

not condemnation for some nondescript “open space.”

The property was planned and zoned for residential

, The outpouring of eminent domain actions

immediately after Kelo by agencies that felt unleashed by

that decision is catalogued in Dana Berliner, Opening the

Floodgates: Eminent Domain Abuse In the Post-Kelo World

(2006).

development; the Township’s Planning Board twice

gave the project its approval, which was neither

appealed nor litigated; there were no studies showing

any different need.° All that happened — after MiPro’s

construction was under way — was that the Township

made an ad hoc decision that it wanted to keep this

development out of town, so it hastily condemned.’

That was a Pavlovian reaction, not a well designed

municipal plan.

Even the New Jersey appellate courts that

approved this condemnation had to concede that there

was no plan — but then (contrary to Kelo) asserted that

the absence of a plan didn’t matter. (Pet. App., pp. 16a,

‘ The fact that a parcel of land is currently vacant does

not mean that it is either needed or appropriate for some

municipally owned “open space.” It only means that the land

is currently not being used. Municipal takeovers do not

always yield positive results. See Timothy Williams, “Land

Bought For Parks Often Winds Up Luring Trash and Old

Cars, ” New York Times, Aug. 12, 2006, p. C16.

This was not the first time that Mount Laurel chose to

put itself in the land use spotlight for exclusionary activities.

In Southern Burlington County NAACP vy. Township of

Mount Laurel, 336 A.2d 713 (N.J. 1975), the New Jersey

Supreme Court forcefully told the Township that it was

seeking to foist too much of the regional housing need onto

its neighbors and needed to shoulder its fair share. It

obviously hasn’t learned and is trying another exclusionary

ploy in the guise of condemning residential development land

for open space in a way that stretches Kelo beyond

recognition. This time, instead of merely saying it didn’t

want low and moderate income families, it said it didn’t want

any families.

23a.) Nor did the evident fact that the “public use” of

preserving open space was no more than a pretext for

stopping this specific residential development — even

though MiPro’s development was wholly consistent

with the local planning and zoning and had been

approved by the local Planning Board and not

challenged.* NAHP understands that private property

may be condemned for open space. The point here is

that open space condemnation — like condemnation for

any other use — must be preceded by careful municipal

study of the kind discussed in Kelo in order to support it.

Such a study was concededly absent here, rendering this

particular open space condemnation invalid, and its

approval by the New Jersey Supreme Court in conflict

with the underlying basis of Ke/o and the holdings by

other courts discussed in the Petition and hereafter.

The actions of New Jersey’s Appellate Division

and Supreme Court demonstrate that they got only half

of Kelo’s message. They got the part about “deference,”

but missed the part about the need for honest municipal

planning providing the basis for the taking, and the part

about restraint on condemnations whose basis is wholly

pretextual. In the process, those courts seem to have

overlooked their role in the litigation process. This case

went to trial, and the trial court made extensive and

. More than that, by waiting until after MiPro had

begun construction, the Township caught MiPro at its most

vulnerable moment. Adding insult, the New Jersey Supreme

Court noted that MiPro should be compensated only for the

face value of the land (Pet. App., p. 2a) even though that

would fall short even of providing restitution, as the dissent

aptly showed (Pet. App., pp. Sa-7a).

10

explicit findings of fact. Those findings plainly showed

the sham nature of the Township’s actions. The

appellate courts did not set aside any of those findings,

they simply ignored them. This Court has repeatedly

warned against such actions, noting the important role

played by triers of fact. (E.g., CI.R. v. Duberstein, 363

U.S. 278, 289-291 [1960]; England v. Louisiana

Medical Examiners, 375 U.S. 411, 416-417 [1964];

Nectow v. Cambridge, 277 U.S. 183 [1928].)

Without this Court’s prompt intervention, the

danger is real that the approach of the influential New

Jersey Supreme Court will be adopted by others and

remove the 5th Amendment’s intended protection. This

Court should act now to explain the lower limit of Kelo

before more people are injured by decisions like this

one. The country needs reassurance that, even under

Kelo’s highly deferential standard of review, the core of

the “public use” limitation remains in place and provides

protection at some point.

Ill

WHEN EMINENT DOMAIN IS SHOWN TO BE

BASED ONLY ON PRETEXT, AND NOT ON ANY

REAL PLANNING PROCESS, THE JUDICIARY

MUST - AS THIS COURT PLAINLY

CONCLUDED IN KELO —- STEP IN AND

PROTECT THE PRIVATE PROPERTY OWNERS

FROM SHAM PROCEEDINGS.

Reviewing the constitutionality of legislative acts

is neither to be sought nor taken lightly. However, such

11

review is a necessary part of our constitutional system.

As this Court explained, such review is undertaken:

“,.. with all respect for the powers of Congress,

but with recognition of the transcendent status

of our Constitution.” (Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 159 [1963].)”

Whether legislative action complies with the

Constitution is a question for the judiciary — and has

been since Marbury v. Madison, 1 Cr. 137 (1803).

Thus, even though Kelo insisted on deferring to

municipal planning judgment, it based that conclusion

on the premise that municipal judgment would be based

on competent, comprehensive planning, and declared

that judicial deference would not go so far as to rubber

stamp obviously sham and pretextual actions. (Kelo,

545 U.S. at 487; see also Jd. at 493 [Kennedy, J.,

concurring].)

In direct conflict with MiPro, this proper reading

of Kelo was made by the Supreme Courts of Rhode

Island (Rhode Island Economic Dev. Corp. v. The

Parking Company, L.P., 892 A.2d 87, 104 [R.I. 2006]

[“Kelo . . . stressed the condemning authority’s

responsibility of good faith and due diligence before it

may start its condemnation engine”], Ohio (City of

Norwood v. Horney, 853 N.E.2d 1115, 1137 [Ohio

2006] [“deferential review is not satisfied by superficial

scrutiny”; “our precedent does not demand rote

deference to legislative findings in eminent domain”]

: Plainly, municipalities are entitled to no more

deference than Congress.

12

and Oklahoma (Board of County Comm'rs v. Lowery,

136 P.3d 639 [Okla. 2006] [relying on_ state

constitution], and the Maryland Court of Appeals

(Mayor & City Council of Baltimore v. Valsamaki, 916

A.2d 324, 348 [Md. 2007] [“it is not enough . . . to

simply say that it is conducting urban renewal and leave

it at that’’}).

The necessary restraint placed on total deference

to municipal action arises directly from the Constitution,

and specifically from the Bill of Rights, which was

designed to restrict the power of government. This is,

after all, the 5th Amendment to the U.S. Constitution

that is being applied, and the bedrock protection

declared in Kelo cannot be undermined by state courts

acting like New Jersey’s appellate courts.

As Justice Holmes explained for the Court early

in the 20th century, “(t]he greatest weight is given to the

judgment of the legislature, but it always is open to

interested parties to contend that the legislature has gone

beyond its constitutional power.” (Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 413 [1922].)'°

That philosophy of judicial restraint was stressed

again more recently in City of Monterey v. Del Monte

Dunes, 526 U.S. 687 (1999), when the Court concluded:

10 See also Winger v. Aires, 89 A.2d 521, 522 (Pa.

1952) (enjoining improper use of eminent domain):

“The genius of our democracy springs from the bedrock

foundation on which rests the proposition that office is

held by no one whose orders, commands or directives

are not subject to review.”

13

“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 of error.” (Del Monte, 526

U.S. at 707; emphasis added.)

Del Monte was a continuation of the Court's

modern regulatory taking decisions and a precursor of

Kelo. Its rejection of deference to municipal action

“under all circumstances,” the standard the government

had sought, forms an appropriate jurisprudential bridge.

In First English, the Court ended years of

indecision by concluding that compensation is the

proper remedy for a regulatory taking. Despite that

holding’s clear 5th Amendment grounding, the

defendant county and its many amici had argued that

the constitutional mandate be subordinated to their

fiscal and operational concerns. The Court rejected that

hyperbolic plea, concluding that:

“We realize that even our present holding

will undoubtedly lessen to some extent the

freedom and flexibility of land-use planners

and governing bodies of municipal

corporations when enacting land-use

regulations. But such consequences

necessarily flow from any decision

upholding a claim of constitutional mght;

many of the provisions of the Constitution

are designed to limit the flexibility and

freedom of governmental authorities, and

14

the Just Compensation Clause of the Fifth

Amendment is one of them.” (First English,

482 U.S. at 321; emphasis added.)

First English and the cases leading up to it saw

this Court granting substantial deference to the

governing activities of municipalities noting expressly,

for example, that “normal” delay in the planning process

would not lead to governmental liability. (First English,

482 U.S. at 321; see also Tahoe-Sierra, 535 U.S. at

333.) But First English expressed the need for a

constitutional limit at some point even if that restricted

government’s freedom and flexibility. |

Kelo began the trip down that same road for

direct condemnation.'' It held that government was

entitled to substantial leeway in order to perform its

legitimate functions and, as long as it acted in a

conscientious planning mode, all would be well. But

there are limits. Kelo’s majority obviously believed that

government deviance would be limited to the occasional

exception, and assumed that the judiciary would handle

such situations as it had in the past. (Kelo, 545 U.S. at

487.) However, as this case illustrates, lower courts

need more explicit guidance. They need this Court to

show by example how far (to borrow the words of

Justice Holmes) is “too far’ (Pennsylvania Coal, 260

U.S. at 415) in the direct condemnation context.

Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992) is instructive. Viewing a statute that

i Direct and inverse condemnation are based on the

same substantive law. (See First English, 482 U.S. at 315.)

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contained numerous “legislative findings” to support its

conclusion (see 505 U.S. at 1021, n. 10), this Court

stressed that what is important is mot the voiced

legislative rationale, but whether the underlying facts

actually support the legislative result. Remanding the

case to give the State an opportunity to defend its

legislative handiwork, this Court “emphasized[d] that to

win its case, South Carolina must do more than proffer

the legislature’s declaration . . . or its conclusory

assertion....” (Lucas, 505 U.S. at 1031.) A fortiori, if

the legislature’s actual (albeit conclusory) formulation

of a supposed justification is insufficient to validate

legislation challenged under the Takings Clause —

unless supported by facts produced at trial — then

pretextual condemnation for open space that is not even

a thinly disguised cloak for an effort to abort a

legitimate and approved home building project cannot

suffice either.

CONCLUSION

In Kelo, this Court collected some illustrations of

the kind of abuses that can occur in the eminent domain

process, largely abuses brought about when local entities

yielded to influence from those with inside connections

or the ability to apply sufficient pressure. (E.g., 99

Cents Only Stores v. Lancaster Redev. Agency, 237 F.

Supp. 2d 1123 [C.D. Cal. 2001] [condemnation

influenced by Costco, described by the city as its “800

pound gorilla”].) Although the Court viewed such

events as “aberrations” (Kelo, 545 U.S. at 487, n. 17),

the awful example at bench is here less than two years

later. What this case shows is that, unless checked by

this Court, municipalities will be emboldened by

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decisions like the New Jersey Supreme Court’s and the

“aberrations” will multiply. This example cannot be

allowed to remain on the books as an approved

condemnation under the Kelo standard.

NAHB urges that Certiorari be granted.

Respectfully submitted,

Mary Lynn Pickel Michael M. Berger*

National Association of Manatt, Phelps & Phillips

Home Builders * Counsel of Record

1201 15th Street, N.W. 11355 W. Olympic Blvd.

Washington, D.C. 20005 Los Angeles, CA 90064

(202) 266-8200 (310) 312-4185

Attorneys for Amicus Curiae

The National Association of Home Builders

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