Amicus Curiae Brief — Charles A. A. Pratt Construction Construction Construction Co., Inc. v. California California Coastal Coastal (No. 08-668)

~ | Supreme Court US.)

5 (4) FILED

No. 08-668 DEC 17 2008 ©

GPFICE OF THE CLERK

Su The

Supreme Court of the Anited States

CHARLES A. PRATT CONSTRUCTION CO., INC.,

Petitioner,

V.

CALIFORNIA COASTAL COMMISSION,

Respondent.

¢

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District

¢

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF HOME BUILDERS, CALIFORNIA

BUILDING INDUSTRY ASSOCIATION, BUILDING

INDUSTRY LEGAL DEFENSE FOUNDATION AND

HOME BUILDERS ASSOCIATION OF NORTHERN

CALIFORNIA IN SUPPORT OF PETITIONER

4

DaviIp L. COLGAN

(Counsel of Record)

JOHN J. FLYNN [II

ROBERT D. THORNTON

PAUL S. WEILAND

NOSSAMAN LLP

18101 Von Karman Ave. #1800

Irvine, CA 92612

(949) 833.7800

(Counsel for Amici Curiae)

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTLNG CO (S00) 225-6964

OR CALL COLLECT (402) 442-2831

DUANE J. DESIDERIO

NATIONAL ASSOCIATION OF HOME BUILDERS

1201 15th Street, N. W.

Washington, D.C. 20005

(202) 866.8200

NICK CAMMAROTA

CALIFORNIA BUILDING INDUSTRY ASSOCIATION

1215 K Street

Sacramento, CA 95814

(916) 443.7933

ANDREW R. HENDERSON

BUILDING INDUSTRY LEGAL DEFENSE FOUNDATION

1330 Valley Vista Drive

Diamond Bar, CA 91765

(909) 396.9993

PAUL CAMPOS

HOME BUILDERS ASSOCIATION OF NORTHERN CALIFORNIA

200 Porter Drive #200

P.O. Box 5160

San Ramon, CA 94583

(925) 820.7626

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE.................... 1

SUMMARY OF ARGUMENT ............0......ccceee eee 5

Nee cs wasannnncneanersnecees ves 7

I. THE COURT SHOULD GRANT CERTIO-

RARI IN THIS CASE IN ORDER TO PRO-

VIDE CLEAR GUIDANCE TO LOWER

COURTS ON THE APPLICATION OF

THE PENN CENTRAL AD HOC FAC-

TUAL DETERMINATION TEST................ 7

Il. THE WILLIAMSON COUNTY RIPENESS

STANDARD MUST BE REFINED TO

ACCOUNT FOR THE COMPLEXITY OF

THE LAND USE REGULATORY PROC-

i

TABLE OF AUTHORITIES

Page

CASES

Carson Harbor Vill. LTD. v. City of Carson, 37

P.00 Gee (0tn Cit, TAO) nk. hinencceiinee 10

Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th

eas SNE iviersssiniieverseceente kennels meehuediaedenndem pa eeReeses 11

MacDonald, Sommer & Frates v. Yolo County,

Ee We 1 Sitesi ll

NAHB v. Defenders of Wildlife, 127 S. Ct. 2518

I casavecestknssassheacmesnrn aban tained 1

Palazzolo v. Rhode Island, 533 U.S. 606 (2001).......... 9

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

Se TE, Fe re ii ces passim

Williamson County Reg’l Planning Comm'n uv.

Hamilton Bank, 473 U.S. 172 (1985) ....3, 4, 6, 10, 11

STATUTES

Cal. Gov’t Code §§ 66410-66499 .37 ..0.0.0... eee 13

Cal. Pash. em. Combe © 21 eos. iicnccvecescess cick. jeievs Sty

Cal. Pub. Res. Code §§ 21000-21177 .................... 11, 12

ees oe ek 8 |. Senor ieeee 14

Cal. Pub. Res. Code §§ 30000-30900..............00...e. 14

REGULATIONS

Cal. Code of Regs. tit. 14, §§ 15000-15387........... 11, @

Cal. Code Reds. tit. 14, § G02 o.5.. ccs ccceseicsccccsciscccnees 14

lll

TABLE OF AUTHORITIES — Continued

Page

Cal. Code Regs. tit. 14, § 15126.6 .....................06 12, 14

Cat. Coe Fomes. Cit. 16, EGG oncc cess csscecscccsccsccvenes je

OTHER AUTHORITIES

Steven J. Eagle, Regulatory Takings § 8-6(f)

I i a Rh oa al 4.5

Stephen L. Kostka & Michael H. Zischke,

Practice Under the California Environmental

Quality Act § 1.1 (2nd ed. 2008) ............c. ee eeeece eens ll

John M. Quigley & Larry A. Rosenthal, The

Effects of Land Use Regulation on the Price

of Housing: What Do We Know? What Can We

Learn?, 8(1) Cityscape: A Journal of Policy

Development and Research 69 (2005)............0..c...00 5

INTEREST OF THE AMICI CURIAE’

The National Association of Home Builders

(“NAHB”) is a Washington, D.C.-based trade associa-

tion whose mission is to provide a national advocate

for the housing and shelter industry. Founded in

1942, NAHB is a federation of more than 800 state

and local associations. About one-third of NAHB’s

235,000 members are homebuilders and/or remodel-

ers, and its members build about 80 percent of the

new homes produced each year in the United States.

NAHB is also a vigilant advocate for homebuild-

ers in the nation’s courts, and it frequently partici-

pates as a party litigant and amicus curiae to protect

the property rights and interests of its members.

NAHB was a petitioner, for example, in NAHB uv.

Defenders of Wildlife, 127 S. Ct. 2518 (2007). Attached

as Appendix A to this brief is a list of cases in which

NAHB has appeared before this Court as amicus

curiae or “of counsel.” A significant number of those

cases involved landowners and other parties ag-

grieved by over-zealous regulation under a wide array

of statutes and regulatory programs.

‘ Counsel of record for all parties received notice at least 10

days prior to the due date of the amici curiae’s intention to file

this brief. Letters of consent are on file with the Clerk. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amici curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

The California Building Industry Association

(““CBIA”), a state affiliate of NAHB, is a statewide

trade association that represents approximately 5,600

members, including homebuilders, trade contractors,

architects, engineers, designers, suppliers, and other

industry professionals. CBIA members design and

construct California’s housing. CBIA’s purpose is to

advocate on behalf of the interests of its members,

including representation in regulatory matters and in

litigation affecting the ability of its members to

provide housing, and office, industrial, and commer-

cial facilities for residents of California.

Building Industry Legal Defense Foundation

(“BILD”) is a nonprofit, mutual benefit corporation

and wholly controlled affiliate of the Building Indus-

try Association of Southern California (BIA/SC).

BIA/SC is a nonprofit trade association representing

more than 1,700 member companies. The mission of

BIA/SC is to promote and protect the building indus-

try, and aid in its members’ efforts to provide homes

for all Southern California. BILD’s purposes are to

monitor developments in the law, to improve the

business climate for the construction industry in

Southern California, and to defend the legal rights of

current and prospective home and property owners.

To accomplish this mission, BILD participates in and

supports litigation necessary for the protection of

such rights, with special emphasis on cases having a

regional or statewide significance.

Home Builders Association of Northern Califor-

nia (“HBANC”) is a nonprofit association of more

3

than 800 members, representing the interests of

homebuilders, home buyers, and thousands of em-

ployees throughout the San Francisco Bay Area.

HBANC’s members include builders, developers,

contractors, sub-contractors, suppliers, architects,

engineers, planners, and other professions and trades

involved in providing housing opportunities for Cali-

fornians in all income ranges, across a wide range of

diverse communities.

Amici Curiae and the numerous homebuilders,

land developers, and industry professional consult-

ants that their respective organizations represent,

are vitally concerned with providing much-needed

housing to families in California and throughout the

nation. To that end, homebuilders and land develop-

ers participate in and support intelligent and careful

planning, involving local, regional, state, and federal

agencies, to promote the approval of high-quality

housing development.

The increasingly complex structure of the land

use regulatory system stands as an obstacle to hous-

ing development. Against this backdrop, the holdings

of this Court in Penn Central Transportation Com-

pany v. City of New York, 438 U.S. 104 (1978) and

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985), have led in-

creasingly to harsh and unfair rulings by lower courts

on claims of regulatory takings by homebuilders and

land developers. Further, many local jurisdictions

hide behind the rulings in those two cases to create

administrative delay, spuriously justify denials of

4

projects, and impose unreasonable conditions even

when approving a project, thus stifling the provision

and increasing the costs of housing.

The uncertainty produced by the ad hoc fact-

based approach of Penn Central, and the Williamson

County “final determination” test for ripeness review,

have resulted in crippling delays and, in some cases,

the abandonment of otherwise well-conceived and

badly needed development projects. As noted by

Professor Eagle:

In the very nature of things, the enjoyment

of property rights through the development

of land into socially useful projects such as

residential subdivisions, stores, offices, and

entertainment centers is fraught with risk.

In particular, delay is potentially ruinous to

developers, since interest charges and taxes

tick away, attorney fees pile up, and risks of

weather, strikes, and changing markets are

ever present. On the other hand, planners

and municipal attorneys are paid from tax

revenues. While not downplaying the legiti-

mate governmental concern about takings li-

ability, in almost all cases municipalities

have far superior resources to withstand

delays than landowners. Institutions that

promote delay, like both the “final determi-

nation” and “state compensation” prongs of

Williamson County, inject a systematic bias

in favor of the regulator and against the

regulated in all their dealings. This is why

administrative delay remains a_ powerful

tool.

Steven J. Eagle, Regulatory Takings § 8-6(f) at 1112

(3d ed. 2005).

The potential delay and uncertainty created by

the holdings in Penn Central and Williamson County

(among other factors) in many cases substantially

add to the cost of housing, putting houses and even

rents out of reach for too many Americans. See gener-

ally, John M. Quigley & Larry A. Rosenthal, The

Effects of Land Use Regulation on the Price of Hous-

ing: What Do We Know? What Can We Learn?, 8(1)

Cityscape: A Journal of Policy Development and

Research 69 (2005).

SUMMARY OF ARGUMENT

This case vividly demonstrates why this Court

should reexamine and provide guidance regarding the

three-prong test enunciated 30 years ago in Penn

Central for determination of whether a regulatory

taking has occurred. Since that time, there has been

confusion in lower court rulings as to how to properly

apply the Penn Central standards. In addition, gov-

ernment agencies have exploited the confusion in

order to unjustifiably deny development project

applications, but avoid regulatory takings claims.

The instant case presents just the latest example

of the misuse of Penn Central to deprive a landowner

of the ability to obtain judicial relief from a regula-

tory taking. After an exhaustive and expensive per-

mitting process (more than eight years to obtain

6

approvals from San Luis Obispo County), the Califor-

nia Coastal Commission (“Coastal Commission”),

relying on the County’s Local Coastal Program

(“LCP”), reversed the County’s approval of a coastal

development permit needed for the project, after

another ten months of delay.

The record reveals beyond reasonable dispute

that the Coastal Commission will not approve the

project in any form that would meet reasonable

investment-backed expectations. But the lower courts

would not permit Pratt to go to trial. If Penn Central

is the obstacle, the Court should clarify how it applies

in this all-too-common circumstance.

The Williamson County “final decision” standard

is also in need of reexamination and clarification.

The land use regulatory process has become

increasingly complex and time-consuming, especially

where multi-jurisdictional approvals and permits are

required. Pratt was subjected to an exhaustive, time-

consuming and expensive land use approval process

for 41 residential lots, spanning over nine years. The

County approved the project after eight years, and

the Coastal Commission reversed the County’s ap-

proval of the Coastal Development Permit after

another ten months, on grounds that preclude any

development of the property that would meet Pratt’s

reasonable investment-based expectations.

Pratt made a meaningful application (Williamson

County) for development of a very modest project. If

Pratt’s case is not ripe now, judicial relief for Pratt,

7

and all those in similar straits, will become little

more than a vain hope. This Court’s intervention is

required to restore confidence in the efficacy of the

judicial! process.

ARGUMENT

I. THE COURT SHOULD GRANT CERTIO-

RARI IN THIS CASE IN ORDER TO PRO-

VIDE CLEAR GUIDANCE TO LOWER

COURTS ON THE APPLICATION OF THE

PENN CENTRAL AD HOC FACTUAL DE-

TERMINATION TEST.

The first question presented by the Petition is

whether the ad hoc factual determination required by

Penn Central allows a California court to hold, as a

matter of law, that land use regulations do not effect.

a regulatory taking if 20% of a parcel can be devel-

oped.

Under Penn Central, in order to determine

whether a regulatory taking has occurred, where

there is no physical invasion of property and the

landowner is not otherwise deprived of all economi-

cally beneficial use, this Court established a three-

prong test for engaging in an ad hoc factual inquiry

that considers (1) the economic impact of regulation

on the landowner, (2) the extent to which it has

interfered with distinct investment-backed expecta-

tions, and (3) the nature of the governmental action.

Penn Central, 438 U.S. at 124. Here, Pratt never got

8

to make its case factually, since the trial court denied

all relief as a matter of law. The Court of Appeal

affirmed, primarily on the ground that the claim was

not ripe.

The lack of guidance and more definite standards

have allowed local land use permitting jurisdictions

to “just say no” to development applications, without

providing guidance as to project revisions that would

be acceptable and approvable, at the same time

attempting to sidestep claims of regulatory taking. As

a matter of policy, the landowner should be allowed to

present those facts to a court for determination of

whether, under Penn Central, a regulatory taking has

occurred.

Pratt’s county-approved development plan called

for 100 of the 124 acres (approximately 80%) to be

preserved from development, primarily because of the

existence of an environmentally sensitive habitat

area (“ESHA”). Pratt sought the development of only

41 homes on the remaining 24-acre parcel, a dramatic

reduction from the 149 homes originally proposed in

1973. The Court of Appeal held, as a matter of law,

that because 20% of the tract remained theoretically

available for development, no regulatory taking could

occur. The court implied moreover that the Coastal

Commission might be amenable to approving a less

intense project.

Pratt was therefore denied the right to prove at

trial that, in effect, a regulatory taking had occurred:

based upon certain of the Coastal Commission’s

9

findings, no project of any type would be approved, as

demonstrated below.

As asserted by Pratt, the Coastal Commission

concluded, among other things, that the property

could not be served by a local water service provider,

which had provided a “can and will serve” letter. The

Coastal Commission based its conclusion on the

stated ground of LCP requirements that preclude

water service to the property by off-site water sources

because the property was outside the boundaries of

an urban service line. As applied to the property, the

LCP requirements bar the use of outside water

sources, even though there is no available on-site

source of water and Pratt was able to secure an off-

site source.

Pratt should be allowed to prove at trial that the

Coastal Commission will allow no development of the

property, thus constituting a taking, because of (1) a

regulation precluding the importation of water to the

property, where the property could not otherwise

generate a water supply, (2) other preclusive findings

related to aesthetics and views, (3) the establishment

of an ESHA on 80% of the property, and (4) the pres-

ervation of the property for an endangered species.

Petition at 8-9."

° As this Court stated in Palazzolo v. Rhode Island, 4533

U.S. 606, 620 (2001), “once it becomes clear that the agency lacks

the discretion to permit any development, or the permissible

(Continued on following page)

10

Pratt was barred from presenting evidence of a

taking under Penn Central, taking into consideration

the economic impact of the regulation on Pratt, the

extent to which it had interfered with its reasonable

investment-backed expectations, and the nature of

the governmental action. Landowners need further

guidance from this Court on Penn Central review, or

they will be faced with takings that are, in fact, total,

but for which there is no hope of effective relief in the

courts.

Il. THE WILLIAMSON COUNTY RIPENESS

STANDARD MUST BE REFINED TO AC-

COUNT FOR THE COMPLEXITY OF THE

LAND USE REGULATORY PROCESS.

In this case, the trial court granted judgment as

a matter of law to the Coastal Commission, on the

ground that Pratt’s claim was not ripe for adjudica-

tion. The Court of Appeal affirmed. Pursuant to the

first prong of the Williamson County ripeness test, a

regulatory takings claim is not ripe until the govern-

mental entity implementing the regulation has

reached a final! decision. Williamson County, 473 U.S.

at 16. The finality requirement has been interpreted

as requiring at least one meaningful development

proposal. See Carson Harbor Vill. LTD. v. City of

Carson, 37 F.3d 468, 474 (9th Cir. 1994); see also

uses of the property are known to a reasonable degree of cer-

tainty, a takings claim is likely to have ripened.”

11

Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1455 n.6

(9th Cir. 1986) (quoting MacDonald, Sommer &

Frates v. Yolo County, 477 U.S. 340, 352 n.8 (1986)).

Under MacDonald, Sommer & Frates, rejection of

“exceedingly grandiose development plans” does not

imply that less ambitious plans will also be denied;

therefore, a proposal for a particularly intense use of

property does not constitute a meaningful application

for Williamson County purposes. MacDonald, Som-

mer & Frates, 477 U.S. at 353 nn.8-9. It cannot be

reasonably disputed that Pratt submitted a meaning-

ful, not a “grandiose,” application.

As stated in the Petition, Pratt submitted to the

County a proposal for 41 residential lots, reduced

from the 149 residential lots originally proposed in

1973, to be developed on only 20% of its acreage.

Thereafter, Pratt worked with the County for more

than eight years, finally receiving approval from the

County Board of Supervisors. An Environmental

Impact Report (“EIR”) under the California Environ-

mental Quality Act (“CEQA”) was prepared for the

project, which, according to the Petition, included

* Cal. Pub. Res. Code §§ 21000-21177 (CEQA); Cal. Code of

Regs. tit. 14, §§ 15000-15387 (CEQA Guidelines). As noted in

Stephen L. Kostka & Michael H. Zischke, Practice Under the

California Environmental Quality Act § 1.1 at 2 (2nd ed. 2008):

CEQA applies to most public agency decisions to carry

out, authorize, or approve projects that could have

adverse effects on the environment. Unlike most envi-

ronmental laws, CEQA does not regulate project im-

plementation through substantive regulatory standards

(Continued on following page)

12

extensive analysis of ten different alternative devel-

opment proposals.“ The Coastal Commission, how-

ever, not only denied the Coastal Development Permit

for the County-approved project, but also impliedly

or prohibitions. Instead of prohibiting agencies from

approving projects with adverse environmental ef-

fects. CEQA requires only that agencies inform them-

selves about the environmental effects of their

proposed actions, carefully consider all relevant in-

formation before they act, give the public an opportu-

nity to comment on the environmental issues, and

avoid or reduce significant environmental impacts

when it is feasible to do so.

For purposes of CEQA and the CEQA Guidelines, the County

acted as the “Lead Agency” since it had primary responsibility

for carrying out or approving the project. Cal. Code Regs. tit. 14,

§ 15367. The Coastal Commission acted as a “Responsible

Agency” since, although not having primary responsibility for

carrying out or approving the project, nevertheless had discre-

tionary approval powers over the project through the Coastal

Development Permit process. Jd. § 152381. Other governmental

agencies which may have approval or permitting authority over

the project are additionally deemed to be Responsible Agencies

for the purposes of CEQA.

* It is an essential policy of CEQA that Public Agencies

should not approve projects <-> proposed if there are feasible

alternatives or feasible mitigation measures which substantially

lessen the significant environmental effects of such projects. Cal.

Pub. Res. Code § 21002. The term “feasible” is defined to mean

“capable of being accomplished in a successful manner within a

reasonable period of time, taking into account economic, envi-

ronmental, social and technological factors.” Jd. § 21061.1.

CEQA Guidelines § 151266 provides the standards for consider-

ing a reasonable range of alternatives to the project, or the

location of the project, which would feasibly attain most of the

project’s basic objectives, but would avoid or lessen significant

effects of the project.

13

rejected all the ten alternatives analyzed in the EIR,

stating that it could not modify the project (including

altering any of the alternatives), because “revisions

that would be necessary ... are so extensive ...

denial ... is the only appropriate course. ...” Pet. at

23-24 (citing AR 3176).

In order to properly analyze whether Pratt

submitted a meaningful application (approved by

the County after eight years), it is important to

consider the context in which development projects

are processed in highly regulated states like Califor-

nia. This is not a case where a permitting agency has

denied a development application but states that the

project could be approved if certain modifications are

made.

Rather, in 1990, Pratt submitted an application

for a vesting tentative tract map pursuant to provi-

sions of the California Subdivision Map Act.’ As

stated above, an EIR was prepared pursuant to

° Cal. Gov't Code §§ 66410-66499.37. The Subdivision Map

Act authorizes the legislative bodies of local agencies, defined as

cities, counties, and cities and counties to regulate and contro]

the design and improvement of the subdivision of land, and

additionally mandates the performance of certain functions. A

“vesting tentative tract map” is a particular type of subdivision

map which provides a vested right to develop land subject to the

map for a specified period of time after a “Final Map” is filed for

record in accordance with only those ordinances, policies and

standards of the local agency in effect on the date the applica-

tion for the vesting tentative tract map is deemed complete. Jd.

§§ 66498.1-66498.9.

14

CEQA, fully analyzing all of the potential significant

adverse environmental impacts of the proposed

project, as well as a wide range of feasible alterna-

tives to the project. Under CEQA, as a general rule,

the environmentally superior feasible alternative

must be selected by the approving body.” Thus, after

an extensive and exhaustive process of analyzing the

project’s impacts, and refining the development

proposal in collaboration with the County, the County

finally approved the project more than eight years

after application had been made.

The County, as a part of its land use regulatory

permitting process, also approved a Coastal Devel-

opment Permit for the project, finding the project

consistent with the governing LCP, as required by the

California Coastal Act.’ However, the approval of that

Coastal Development Permit was appealed to the

Coastal Commission, which ultimately denied ap-

proval of the ElR-preferred alternative, as well as all

of the alternatives included in the EIR. ‘the Commis-

sion denied the application on the grounds that

project revisions would be so extensive as to render

denial the only appropriate remedy. Pet. at 23-24

(citing 19 AR 3176).

Under the Coastal Act, Pratt is not able to simply

reapply directly to the Coastal Commission for a

* Cal. Pub. Res. Code §§ 21002, 21081; see also Cal. Code

Regs. tit. 14, §§ 15091, 15126.6.

” Cal. Pub. Res. Code §§ 30000-30900.

15

Coastal Development Permit; rather, Pratt is re-

quired to begin the process anew with the County by

filing a new application for the project, including a

Coastal Development Permit, processing it in accor-

dance with applicable California land use statutes

and regulations, including CEQA and the Subdivision

Map Act, as well as with County land use regulations

and ordinances, and thereafter again face the possi-

bility of an appeal to the Coastal Commission, and

another denial for some or all of the same reasons

(e.g., lack of water on-site, views and aesthetics) the

application for Coastal Development Permit was

originally denied. It would be unfair and unjust to

preclude Pratt from presenting and trying his regula-

tory taking claims.

Nine years and a categorically preclusive “no” is

long enough and clear enough for ripeness. No good

purpose could be served by sending Pratt back for

another nine years and the same answer.

*

16

CONCLUSION

Pratt’s situation, all too familiar to far too many of

amici’s members, demands relief. This case is ripe for

review, and the Court is asked to grant Pratt’s petition.

Respectfully submitted,

DavipD L. COLGAN

(Counsel of Record)

JOHN J. FLYNN IIIT

ROBERT D. THORNTON

PAUL S. WEILAND

NoOSSAMAN LLP

DUANE J. DESIDERIO

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15th Street, N. W.

Washington, D.C. 20005

NICK CAMMAROTA

CALIFORNIA BUILDING

INDUSTRY ASSOCIATION

1215 K Street

Sacramento, CA 95814

ANDREW R. HENDERSON

BUILDING INDUSTRY LEGAL

DEFENSE FOUNDATION

1330 Valley Vista Drive

Diamond Bar, CA 91765

PAUL CAMPOS

HOME BUILDERS ASSOCIATION

OF NORTHERN CALIFORNIA

200 Porter Drive #200

P.O. Box 5160

San Ramon, CA 94583

App la

APPENDIX A

Cases in which NAHB has appeared as an amicus

curiae or “of counsel” before this Court include:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas and Elec. Co. v. City of San Diego, 450 U.S.

621 (1981); Williamson County Reg’l 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. Los Angeles County, 482 U.S. 304 (1987);

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

Pennell v. City of San Jose, 485 U.S. 1 (1988); Yee v.

City of Escondido, 503 U.S. 519 (1992); Lucas v. S.C.

Coastal Council, 505 U.S. 1003 (1992); Dolan v. City

of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

Chapter of Cmtys. for a Greater Ore., 515 U.S. 687

(1995); Suitum v. Tahoe Reg’l Planning Agency, 520

U.S. 725 (1997); City of Monterey v. Del Monte Dunes

at Monterey Ltd., 526 U.S. 687 (1999); Solid Waste

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

Eng’rs, 531 U.S. 159 (2001); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Franconia Assocs. v.

United States, 536 U.S. 129 42002); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.

302 (2002); Borden Ranch P’ship v. U.S. Army Corps

of Eng’rs, 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); San Remo Hotel, L.P. v.

City and County of San Francisco, 545 U.S. 323

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

App 2a

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

(2005); S.D. Warren Co. v. Me. Bd. of Envtl. Prot. 547

J.S. 370 (2006); Rapanos v. United States, 547 U.S.

715 (2006); John R. Sand and Gravel Co. v. United

States 128 S.Ct. 750 (2008); Winter v. Nat. Res. Def.

Ceuncil, No. 07-1239, 2008 WL 4862464 (U.S. Nov.

12, 2008); Summers v. Earth Island Inst., 490 F.3d

687 (9th Cir. 2007), cert. granted, 128 S.Ct. 1118

(2008) (No. 07-463); Entergy Corp. v. Envtl. Prot.

Agency, 475 F.3d 83 (2d Cir. 2007), cert. granted, 128

S. Ct. 1867 (2008) (consol. with Nos. 07-589 and 07-

597); and Coeur Ala., Inc. v. S.E. Ala. Cons. Council,

486 F.3d 683 (9th Cir. 2007), cert. granted, 128 S. Ct.

2995 (2008) (No. 07-984, consol. with 07-990).