Petition for Writ of Certiorari — Leonard v. Town of Brimfield

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96 605 OCT 15 199%

No. Be rice Of {HE CLERK —

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

TOWN OF BRIMFIELD and

CYNTHIA K. POWERS,

Cross-Petitioners,

VS.

MARY E. LEONARD,

Cross-Respondent.

Conditional Cross-Petition for Writ of Certiorari to the Supreme

Judicial Court of the Commonwealth of Massachusetts

CONDITIONAL CROSS-PETITION FOR

WRIT OF CERTIORARI

JOEL B. BARD

WILLIAM HEWIG, III

Counsel of Record

MICHELE E. RANDAZZO

KOPELMAN AND PAIGE, P.C.

Attorneys for Respondents

31 St. James Avenue

Boston, Massachusetts 02116

(617) 556-0007

QUESTION PRESENTED

Whether the Supreme Judicial Court of the

Commonwealth of Massachusetts erred when it analyzed

Cross-Respondent's "regulatory takings" claim under a tri-

partite standard of review, and in so doing, suggested that

such a standard of review was mandated under federal law?

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TABLE OF CONTENTS

Page

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Reasons for Granting the Conditional Cross-Petition

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I. In The Event That This Court Grants The

Petition For Writ Of Certiorari, Just Resolution

Of The Issues Presented In the Petition Require

The Court To Consider Whether Federal Law

Mandates The Application Of A Three-Part

“Test” In Determining Whether A Challenged

Governmental Regulatory Action, Which Does

Not Deprive A Landowner Of All Economically

Viable Use Of His Or Her Land And Does Not

Constitute A Physical Invasion Of The

Property, Amounts To A Compensable

“Taking” Under The Fifth Amendment

To The United States Constitution ........ 4

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TABLE OF CITATIONS

Cases Cited:

Connolly v. Pension Benefit Guar. Corp.,

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Lucas v. South Carolina Coastal Council,

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Penn Central Transp. Co. v. New York City,

I EE BI a es oe ee dig eh ble ae 6

Ruckelshaus v. Monsanto Co.,

re a sg 6 yk ads Wie ee w Oe 6

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

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iv

Contents

Page

Constitutional Provisions Cited:

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OPINION BELOW

The opinion of the Supreme Judicial Court of the

Commonwealth of Massachusetts is reported at 423 Mass.

152 (1996). See Petitioner/Cross-Respondent's Appendix

at p. Al-A18.

STATEMENT OF JURISDICTION

On July 11, 1996, the Supreme Judicial Court of the

Commonwealth of Massachusetts affirmed a decision of the

Superior Court of Hampden County in favor of the Cross-

Petitioners/Respondents [hereinafter "the Town"], which

had been entered on April 13, 1994. Cross-

Respondent/Petitioner [hereinafter "Leonard"] filed her

petition for a writ of certiorari on September 12, 1996, and

it was placed on the docket on the same day.

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(a) and Rule 12.5 of the Rules of the Supreme

Court of the United States, and is conditional upon this

Court's grant of Leonard’s petition for a writ of certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

states, in pertinent part:

" ...mor shall private property be taken for public

use, without just compensation."

2

The Fourteenth Amendment to the United States

Constitution states, in pertinent part:

"No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property without due

process of law...."

STATEMENT OF THE CASE

The Town relies upon, and incorporates by reference,

the Statement of the Case presented in its Brief in

Opposition to Petition for Writ of Certiorari, Mary E.

Leonard v. Town of Brimfield and Cynthia K. Powers,

United States Supreme Court Docket No. 96-389.

The issue raised in this conditional cross-petition, the

applicability of a three-pronged "standard" of review

argued by Leonard on appeal, was raised before the

Massachusetts Supreme Judicial Court both in the Town's

brief and at oral argument. Specifically, the Town argued

that the trial judge correctly applied regulatory takings law

in his determination that no compensable taking had

occurred, and that there was no meaningful distinction

between federal and Massachusetts state caselaw on the

takings issue. The Town further challenged the validity of

Leonard's assertion that a specific, three-pronged analysis

was required by federal law in situations where the

governmental action challenged has not deprived the

landowner of all economically viable use of his or her land,

3

amount to a physical invasion of the property, as is the case

here. See Brief of the Defendants-Appellees at 28-29,

Leonard v. Town of Brimfield, et al., 423 Mass. 152 (1996)

(No. SJC-07008).

4

REASONS FOR GRANTING THE CONDITIONAL

CROSS-PETITION FOR A WRIT OF CERTIORARI

IN THE EVENT THAT THIS COURT GRANTS

THE PETITION FOR WRIT OF CERTIORARI, JUST

RESOLUTION OF THE ISSUES PRESENTED IN THE

PETITION REQUIRE THE COURT TO CONSIDER

WHETHER FEDERAL LAW MANDATES THE

APPLICATION OF A THREE-PART "TEST" IN

DETERMINING WHETHER A CHALLENGED

GOVERNMENTAL REGULATORY ACTION,

WHICH DOES NOT DEPRIVE A LANDOWNER OF

ALL ECONOMICALLY VIABLE USE OF HIS OR

HER LAND AND DOES NOT CONSTITUTE A

PHYSICAL INVASION OF THE PROPERTY,

AMOUNTS TO A COMPENSABLE "TAKING"

UNDER THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

Should this Court grant the petition for a writ of

certiorari in the present case, it will be called upon to

review whether, on the facts as summarized by the

Massachusetts Supreme Judicial Court [hereinafter "SJC"]

and supported by the record, the Zoning Board of Appeals’

June 2, 1987 grant of a Special Permit to Leonard, which

did not deprive her of all economically viable use of her

property and did not constitute a physical invasion of her

property, amounted to a compensable taking under the Fifth

Amendment to the United States Constitution. The Fifth

5

Amendment provides, in pertinent part, that "...private

property [shall not] be taken for public use, without just

compensation." U.S. Const. Amend. V.’

In its analysis of this issue, the SJC reviewed three

factual criteria proffered by Leonard, which she contended

the court was required to consider under federal regulatory

takings caselaw. See Brief of the Plaintiff-Appellant at 13-

14, Leonard v. Town of Brimfield, et al., 423 Mass. 152

(1996) (No. SJC-07008). Despite the Town's arguments on

appeal that federal law does not require application of such

a three-pronged test in the circumstances presented, and

that, in fact, Supreme Court precedent clearly establishes

that there is no bright-line test or inquiry in regulatory

takings cases (see, e.g., Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992)), the SJC adopted

Leonard's proffered test and applied it in its decision. See

Petitioner/Cross-Respondent's Appendix at p.A8. On this

point, the SJC stated

When a regulatory action involves neither a

physical invasion nor a complete deprivation of use,

as in the case here, Federal law has established

several interrelated factors which are to be

considered in determining whether a compensable

taking has occurred; "(1) ‘the economic impact of

' The so-called "takings clause" of the Fifth Amendment is

applicable to the States through the Fourteenth Amendment of the

United States Constitution. Webb's Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 160 (1980).

6

the regulation on the claimant’; (2) ‘the extent to

which the regulation has interfered with distinct

investment-backed expectations’; and (3) ‘the

character of the governmental action.’" Connolly v.

Pension Benefit Guar. Corp., 475 U.S. 211, 225

(1986), quoting Penn Cent. Transp. Co. v. New

York City, 438 U.S. 104, 124 (1978) [emphasis

added]. Petitioner/Cross-Respondent’s Appendix at

p.A8.

While the Town does not dispute that the above-listea

"interrelated factors" have been considered by the federal

courts in certain contexts, as pertinent to a takings analysis,

no federal court has ever announced these factors to be the

standard or test which must be applied in each and every

case alleging that governmental regulatory action constitutes

a compensable "taking" under the Fifth Amendment. See,

e.g., Penn Central Transp. Co. v. New York City, 438 U.S.

104, 124 (1978) (Court identifying several relevant factors

in analysis but reiterating that each case involves a fact

specific "ad hoc" inquiry).

In fact, such an interpretation is unwarranted based

upon the current state of federal case law, in which the

Supreme Court has consistently cautioned that "we have

eschewed the development of any set formula for

identifying a "taking" forbidden by the Fifth

Amendment...." Connolly v. Pension Benefit Guar. Corp.,

475 U.S. 211, 224 (1986) [citations omitted]; see also

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984)

("As has been admitted on numerous occasions, this Court

7

has generally been unable to develop and ‘set formula’ for

determining when ‘justice and fairness’ require that

economic injuries caused by public action must be deemed a

compensable taking" [citations and other internal quotations

omitted]).

Thus, the language used by the SJC in its decision

improperly confines the case-by-case, "ad hoc, factual

inquiry" in takings claims under federal law where the

landowner has retained some if not all use of his or her

property, to the consideration of these three factors,

presumably to the exclusion of other considerations, in a

manner contrary to earlier teachings of this Court. The SJC

was simply incorrect in its annunciation of a definitive

standard of review under federal law in regulatory takings

cases, and should this Court grant Leonard's petition for a

writ of certiorari, it must consider the propriety of the

SJC's statements in this regard.

CONCLUSION

For the foregoing reasons, the conditional cross-petition

for a writ of certiorari should be granted.

Respectfully submitted,

JOEL B. BARD

WILLIAM HEWIG, III

Counsel of Record

MICHELE E. RANDAZZO

KOPELMAN AND PAIGE, P.C.

Attorneys for

Respondents/Cross-Petitioners

31 St. James Avenue

Boston, MA 02116

(617) 556-0007