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

\6 RECEIVED

No. 08-668 DEC 22 2008

SUPREME COURT US.

In The

Supreme Court of the Anited States

CHARLES A. PRATT CONSTRUCTION CO., INC.,

Petitioner,

¥.

CALIFORNIA COASTAL COMMISSION,

Respondent.

On Petition For A Writ Of Certiorari

To The Court Of Appeal Of California,

Second Appellate District

4

BRIEF OF AMICUS CURIAE

SAN LEANDRO ROCK CO., INC., INSUPPORT

OF PETITION FOR A WRIT OF CERTIORARI

ANTONIO ANZIANO*

JAMES M. WHITAKER

LAW OFFICES OF JAMES M. WHITAKER

4 Mallard Road

Belvedere, California 94920

Telephone: (415) 775-6677

jmwhitaker@earthlink.net

*Counsel of Record

COCKLE LAW BRIEF PRINTING ¢ ROO) 25-6964

OR CALL COLLECT (492) 942-2831

IIl.

IV.

TAB*.£ OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............. 1

SUMMARY OF ARGUMENT........000000...05. 8

PRI PUEERON S <cinecenexesevuivsnesnsamiien eaeeneenei 16

A. The Palazzolo Case Clearly Estab-

lished That a Development Application

Is Not a Prerequisite to All Regulatory

Ts CONGO vesicecsessessctonrine 16

B. The Milagra Case Involved a Discre-

thomenry EROCHIRONE.-.6ccccinicinnsesteeen 19

C. The Shea Case Was Different Proce-

durally and Factually From Palazzolo

IND TAI onscicsinsinisvieinsnsaseeeee 21

CONUS 0 xsisiesseieisersessaccaumuaaaae 22

il

TABLE OF AUTHORITIES

FEDERAL CASES

Dodd v. Hood River County (9th Cir. 1995), 59

Lice. cssdicpancentasscatousaveuneacesiaieligieeudaiiae 13

MacDonald, Sommer & Frates v. Yolo County

(1986), 477 U.S. 340 (91 L. Ed. 2d 285, 106

EE RvR ME Seay 13

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

[150 L. Ed. 2d 592, 121 S. Ct. 2448]......0000.0... passim

Pennsylvania Coal Co. v. Mahon (1922), 260

U.S. 393 [67 L. Ed. 322, 43 S. Ct. 158].....8, 9, 22, 23

Williamson Planning Comm’n v. Hamilton

Bank (1985), 473 U.S. 172 [87 L. Ed. 2d 126,

ee cus cep ee 13

Yee v. Escondido (1992), 503 U.S. 519 [118

EB Se & ae hj 13

STATE CASES

Calprop Corp. v. City of San Diego (2000), 77

ia ails is oc sclociamaajadavensoniaaieenntannaen 13

County of Alameda v. Superior Court (2005),

TT TT a 12

Hensler v. City of Glendale (1994), 8 Cal.4th 1 ......... 13

Long Beach Equities, Inc. v. County of Ventura

Suen), 2) Cal.App.3d 1O1G...............0ccccccecsorerorons 13

Milagra Ridge Partners, LTD v. City of Pacifica

(1998), 62 Cal.App.4th 108.0... 13, 14, 19, 20

il

TABLE OF AUTHORITIES - Continued

Page

Shea Homes Limited Partnership v. County

of Alameda (2003), 110 Cal.App.4th

IE. sccicssé ctuptotaunieatensinieaee 13, 14, 15, 21, 22

Toigo v. Town of Ross (1998), 7 Cal.App.4th 309....... 13

SECONDARY SOURCES

Fulton, Guide to California Planning (1991)......... 8, 11

I. INTEREST OF AMICUS CURIAE

The hurdles of restrictive statutory and regula-

tory law placed in front of property owners have

grown higher and higher, to the point where the race

can no longer be run for many. Case law has not kept

up with these restrictive changes, and the equitable

balance between private land use and public interest

no longer exists. The story of Petitioners is not iso-

lated. Amicus curiae San Leandro Rock Company

(hereinafter “San Leandro Rock”) is one more exam-

ple of a property owner lost in the never-ending maze

of land use regulation and unable to make economic

use of its property as a result.’

San Leandro Rock is a small, family-owned

business, located in an unincorporated area of the

County of Alameda, California, and has been a mem-

ber of the business community in the San Francisco

area for almost a century. The primary business was

always the operation of a quarry on the property at

issue. The product of their enterprise exists through-

out the area. The rock supplied by their quarry

' The parties were notified ten days prior to the due date of

this brief of the intention to file. The parties have consented to

the filing of this brief.

This amicus brief is filed with the consent of the parties.

Counsel for the Petitioners and Respondents have granted

blanket consent for the filing of amicus briefs in these cases. 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 amicus curiae, its members, or its counsel made a mone-

tary contribution to its preparation or submission.

2

helped to build the roads that we travel on, the

buildings that we live and work in.

When the quarry was originally established, the

surrounding area was rural and undeveloped. As the

area grew, development came to the doorstep of the

quarry. A major residential subdivision was developed

and homes were built next door to the quarry. This

development was authorized by government and

welcomed by the new residents who eagerly occupied

the new homes. However, the noise, dust and truck

traffic common to all quarries became a nuisance to

these new neighbors. The neighbors did not care that

they had come to the quarry rather than the quarry

coming to them. They did not care that they depended

on roads and buildings made from the product of this

quarry. Their life was disturbed by the quarry and

they demanded that it be shut down. The County of

Alameda (hereinafter “County”) did not care that

government had created this situation by allowing

development next to the quarry. The County did not

care about the history and contribution of the quarry.

The County demanded that the quarry be shut down.

San Leandro Rock made a reasonable and neces-

Sary request in response — if the quarry was to be

shut down, the income from the quarry would need to

be replaced through some alternative use of the

quarry property. An Alameda County elected official —

County Supervisor, Joe Bort — promised the Lee

family, owners of San Leandro Rock, that the prop-

erty could be used for a residential subdivision if only

the Lee family would quietly accede to the demands

of their new neighbors. And accede they did.

3

San Leandro Rock ended quarry operations. They

invested huge sums of money in “reclaiming” the

property, making it look less “quarry-like” and suit-

able for future residential subdivision. This started to

worry the neighbors, who decided that, not only did

they not want a quarry; they also did not want more

homes. They preferred to leave the quarry as open

space, one of the final pieces of land needed to com-

pletely ring a nearby lake, Lake Chabot, with open

space.

And then came Measure D. Measure D was a

County initiative measure created by opponents of

development in Eastern Alameda County, distant

from San Leandro Rock. Before the measure went to

the ballot, its proponents opened the door to all

comers — anyone who opposed some development

anywhere in Alameda County was welcomed into the

fold and invited to add their opposition into Measure

D. The neighbors of the San Leandro Rock Company

added the quarry property to Measure D, explicitly

banning residential subdivision, allowing only limited

“agricultural” and “recreational” use, and added a

healthy dose of additional restrictions designed io

insure that the quarry would never be developed or

re-opened as a quarry. The neighbors did not want to

entrust county government with these restrictions —

the restrictions were absolute and not subject to

change by the officials in power. Measure D was

passed by the voters in November of 2000, and any

hope of developing the quarry property was lost.

4

San Leandro Rock Company was left with no

options. San Leandro Rock could not use the property

for a residential subdivision, causing San Leandro

Rock to lose its investment in such use (the invest-

ment being its agreement to forego quarry revenue

together with money actually invested in reclamation

for subdivision purposes) and agricultural and recrea-

tional use was not economic (it is difficult to graze

cattle or grow crops on rock). San Leandro Rock filed

a lawsuit on November 5, 2002, alleging that the

application of Measure D to the quarry property

resulted in a taking without compensation. After

service, the County immediately filed a series of

motions to summarily end the case, primarily based

on the argument that the Complaint fails to state a

claim in that the case was not ripe for adjudication.

The ripeness argument contended that a case could

not be brought against the County until San Leandro

Rock had submitted a development application to the

County and the County had denied the application.

The Trial Court ruled in favor of San Leandro

Rock, ultimately holding that “the facts alleged

support the conclusion that no land use agency [in

the County] has discretion to permit any economically

viable uses [of the quarry property], and that all

permissible uses [of the quarry property] are known

to a reasonable degree of certainty. For that reason,

the Court cannot conclude that Plaintiff’s as-applied

takings claim is not ripe for adjudication.”

The County appealed this decision, contending

that all takings claims must be preceded by a devel-

opment application that has been acted upon. In

+)

October of 2005, the California Court of Appeal ruled

in favor of the County and directed the Trial Court to

vacate its holding. The Court of Appeal concluded

that the matter was not ripe because the County had

not had “the opportunity to exercise its full discretion

in considering [the landowner’s] plans for the prop-

erty in light of the measure.”

San Leandro Rock petitioned the California

Supreme Court for review. The Petition was denied.

In accordance with the Court of Appeal’s decision,

San Leandro Rock began an attempt to work with the

County to discuss possible uses of the subject prop-

erty. On June 27, 2006, after proceedings in the first

lawsuit were final, San Leandro Rock sent a letter to

the County. San Leandro Rock requested that the

County work with San Leandro Rock to help define

the application of Measure D to the subject property.

San Leandro Rock noted that a prompt response from

the County would be greatly appreciated, as the lack

of economically viable use of the subject property was

becoming a serious strain on San Leandro Rock. The

County responded on August 16, 2006 with a letter

that simply stated, “County Counsel and the Plan-

ning Department are preparing a detailed response to

your questions regarding restrictions on and possible

uses of the property. However, I would like you to be

aware that due to vacation schedules in both offices,

we are unable to prepare a more comprehensive

response at this time. You should expect a response

within approximately one month.”

6

On December 1, 2006, five months after San

Leandro Rock’s first letter, arid two and one-half

months after the date of the County’s promised

response, San Leandro Rock sent a final letter to the

County, reminding the County of its outstanding

commitment to work with San Leandro Rock. The

letter again stressed the financial difficulties being

faced by San Leandro Rock. Another five months

passed with no word from the County. On May 3,

2007, almost one year after first writing to the

County, San Leandro Rock filed a second lawsuit. The

County had proven to be uncooperative and had

certainly not provided any input to indicate that

economically viable uses of the subject property did

somehow exist.

On June 14, 2007, after service of the new law-

suit, County Counsel sent a letter to San Leandro

Rock stating that a response to San Leandro Rock’s

first letter would be forthcoming. In addition, County

Counsel stated that a meeting would be arranged

between San Leandro Rock and the County Planning

Director and County Community Development Agency

Director. The stated purpose of the meeting would be

to discuss any questions that San Leandro Rock had

about submitting a development application for the

subject property.

On June 18, 2007, the County finally responded

to San Leandro Rock’s letter of June 27, 2006. The

letter confirmed that residential use was absolutely

limited by Measure D to one primary unit and one

secondary/accessory unit per parcel (a subdivision

was not permissible). The letter confirmed that a

quarry could not be reopened on the subject property.

The letter confirmed that the only other known reuse

of quarries in the area had been for development of

residential subdivisions.

On August 29, 2007, the County met with San

Leandro Rock. The County confirmed that, if San

Leandro Rock were to apply for a more than one

primary and one secondary/accessory residential unit

per parcel, extensive technical reports would be

required with the application for the application to be

accepted by the County for consideration. The County

confirmed that the costs to San Leandro Rock for

developing the required technical reports would be

significant. The County confirmed that such an

application for a multiple unit residential subdivision

would then be denied by the County due to Measure

D.

The second lawsuit remained ongoing while these

discussions between San Leandro Rock and the

County were occurring. After the conclusion of these

discussions, the County filed a motion to dismiss (a

demurrer) the case. In March of 2008, the motion was

granted. The court stated that San Leandro Rock had

to file a development application.

So, seven years after passage of Measure D, and

after more than five years of litigation and negotia-

tion, San Leandro Rock remains stuck. It knows that

the property cannot be developed, but has been

directed by the Court to invest a large sum of money

8

— money that San Leandro Rock cannot afford to

spend — in a pointless, time-consuming application

process with a known outcome.

Il. SUMMARY OF ARGUMENT

Land use regulation and associated regulatory

takings law has been evolving over the past ninety

years, with the most significant changes occurring in

the last thirty years. Land use regulation was origi-

nally intended solely to protect the integrity of

neighborhoods. Over time, the purpose behind land

use regulation has shifted and it is now overwhelm-

ingly directed at the protection of wetlands, endan-

gered species, air and water quality and so on. This

evolutionary march began in New York in 1916 with

the adoption of the county’s first significant zoning

ordinance. The goal of this ordinance was to prevent

the spread of tenements into more affluent neighbor-

hoods. Fulton, Guide to California Planning (1991), p.

: #

This was followed six years later with the first

regulatory takings case to reach the United States

Supreme Court — Pennsylvania Coal Co. v. Mahon

(1922), 260 U.S. 393 [67 L. Ed. 322, 43 S. Ct. 158]

(hereinafter “Pennsylvania Coal”). In Pennsylvania

Coal, the United States Supreme Court held that in

some cases government regulation could go too far

and constitute a taking of private property without

compensation. The Pennsylvania Coal court provided

a foretelling warning: “We are in danger of forgetting

9

that a strong public desire to improve the public

condition is not enough to warrant achieving the

desire by a shorter cut than the constitutional way of

paying for the change.” Pennsylvania Coal, supra, at

416.

However, over time, courts have been reluctant to

find that regulation amounts to taking. In large part

the courts have indicated a belief that no taking can

occur if a property owner is allowed some economic

use of property. Courts have also been reluctant to

intervene in the regulatory process. Courts have

required property owners to work with government to

find some economically viable use for a property

within the existing regulatory structure prior to filing

a lawsuit for inverse condemnation. This was reflec-

tive of the fact that within these regulatory struc-

tures, the executive branch of government had

substantial discretion to remedy inequities caused by

the regulation when applied to a particular property.

For example, if a zoning ordinance limited develop-

ment on a parcel to commercial development and a

property owner could satisfy the government that

commercial development was not economically viable

but residential development would be, government

had the power to exercise discretion and apply a

variance of its ordinance to allow residential devel-

opment on the particular parcel at issue. Courts

wanted to allow the executive branch of government

to have an opportunity to exercise such discretion

before intervening. For this reascn, courts created a

substantial body of law that developed a ripeness

10

doctrine unique to regulatory takings cases. This

doctrine was unique in that it did not necessarily

have any defined boundaries — a property owner

might be required to submit an undefined number of

development applications and receive several rejec-

tions before a court would be inclined to determine

whether a regulatory taking had occurred. The courts

viewed this multiple application process as an ongo-

ing negotiation between the property owner and the

government that needed to occur to help define the

actual scope of a regulation as applied to a particular

property. The necessity for this to occur prior to court

intervention was entirely the result of the tremen-

dous discretion placed into the hands of the executive

branch of government in most land use regulations.

However, while courts were indicating reluctance

to intervene in governmenta! regulation, the restric-

tive scope and nature of regulation began expanding

dramatically. In the 1970s, new regulatory laws were

enacted and directed at the protection of the envi-

ronment — the federal Clean Air Act, Clean Water Act,

Coastal Zone Management Act, National Environ-

mental Policy Act, etc. These laws resulted in signifi-

cant environmental benefits, but also placed heavy

burdens on property owners. Many of these laws were

very strict in nature and began to limit the discretion

of the executive branch of government to address the

concerns of the property owners.

This limitation on discretion resulted in modifi-

cations to the ripeness doctrine in regulatory takings

cases. In some cases, multiple applications were not

1]

required prior to court intervention — a single appli-

cation could be sufficient.

Perhaps the most significant change in regula-

tory law in California began to be seen in the early

1980s. Groups interested in ensuring the limitation of

property development began placing initiatives on the

ballot that were highly restrictive in nature. These

initiatives created laws that were very specific in

defining land use and also precluded the application

of discretion by the executive branch of government.

In fact, these initiatives went one step further and

also removed the discretion of the legislative branch

of government to change the law, providing that the

law could only be modified by subsequent initiative

action by the voters. Fulton, supra, at p. 145.

It is this most recent development that is at the

heart of the case of San Leandro Rock Measure D, the

County initiative ordinance discussed above, is part

of this new breed of restrictive land use ordinances

that rermove government from the equation. It was

created to stop development on vast acreages in the

Livermore area, some twenty five miles away from

the quarry property. The quarry property was

then targeted and added to the initiative after its

creation.

Measure D may be one of the most restrictive

land use regulations seen to date, with only the

possibility of an absolute prohibition on any develop-

ment of any type being more restrictive. It was de-

signed to remove discretion from county government

12

~ no variances could be granted. The law created by

Measure D could only be changed by a subsequent

initiative, and Measure D blatantly transferred the

traditional role of the executive branch — the exercise

of discretion to a\oid a regulatory taking — into the

hands of the judiciary. Section 1 of Measure D stated

that “... [t]he ordinance is designed to remove

the County government from urban develop-

ment outside the Growth Boundary” (emphasis

added). Additionally, section 3 of Measure D stated

that “[nlotwithstanding their literal terms, the provi-

sions of this ordinance do not apply to the extent, but

only to the extent, that courts determine that if they

were applied they would deprive any person of consti-

tutional or statutory rights or privileges, or otherwise

would be inconsistent with the United States or State

constitutions or law.” In other words, the explicit

purpose of this ordinance was to remove the very

discretion that is the fundamental reason for the

ripeness doctrine that courts have traditionally

applied to regulatory takings cases.

The California Court of Appeal decision involving

San Leandro Rock reflects the problems with current

ripeness doctrine which requires that at least one

development application must be filed in all cases

prior to the filing of any action for inverse condemna-

tion. County of Alameda v. Superior Court (2005), 133

Cal.App.4th 558. In doing so, the Court of Appeal

relied principally on three cases, one federal (United

States Supreme Court) and two state (both First

District Court of Appeal). The federal case is

13

Palazzolo v. Rhode Island (2001), 533 U.S. 606 [150

L. Ed. 2d 592, 121 S. Ct. 2448] (hereinafter “Palaz-

zolo”). The two state cases are Milagra Ridge Part-

ners, LTD v. City of Pacifica (1998), 62 Cal.App.4th

108 (hereinafter “Milagra”) and Shea Homes Limited

Partnership v. County of Alameda (2003), 110

Cal.App.4th 1246 (hereinafter “Shea”).” The Court of

Appeal held that these cases together stand for the

proposition that at least one development application

must be submitted by a property owner prior to the

filing of regulatory takings claim in court. The Court

of Appeal noted that it felt particularly bound by the

Shea decision, which actually dealt with Measure D

and found a purported as-applied regulatory takings

claim to be unripe due to the failure of the property

* While the Court of Appeal did rely principally on Palaz-

zolo, Milagra and Shea in reaching its conclusion, it did refer to

a number of other state and federal cases in its decision, includ-

ing Calprop Corp. v. City of San Diego (2000), 77 Cal.4th 582;

Hensler v. City of Glendale (1994), 8 Cal.4th 1; Long Beach

Equities, Inc. v. County of Ventura (1991), 231 Cal.App.3d 1016;

Toigo v. Town of Ross (1998), 7 Cal.App.4th 309; Dodd v. Hood

River County (9th Cir. 1995), 59 F.2d 852; MacDonald, Sommer

& Frates v. Yolo County (1986), 477 U.S. 340 [91 L. Ed. 2d 285,

106 S. Ct. 2561}; Williamson Planning Comm’n v. Hamilton Bank

(1985), 473 U.S. 172 [87 L. Ed. 2d 126, 105 S. Ct. 3108); and Yee v.

Escondido (1992), 503 U.S. 519 [118 L. Ed. 2d 153, 112 S. Ct.

1522]. However, these cases only add to the confusion. They are

simply extensions of Milagra as they all pre-date Palazzolo and

all involve land use regulations that allowed for the exercise of

discretion by government. None of these cases considered

ripeness doctrine in light of the evolution of land use regulation.

14

owner to file a development application after the

adoption of Measure D.

The case of San Leandro Rock supports the

proposition that a development application is not an

absolute prerequisite to the filing of an action for

inverse condemnation. It demonstrates the need to

advance case law to match advances in statutory law

and to secure uniformity of decision and to settle an

important question of law. While the Court of Appeal

found Palazzolo, Milagra and Shea to be consistent,

in fact they are not. As will be discussed in more

detail below, Palazzolo was the first case to truly

consider ripeness doctrine in light of the current state

of land use regulation. Palazzolo noted that Jand use

regulation had historically allowed a governmental

agency to exercise discretion to avoid takings but that

current land use regulation had become much more

strict and the ability of a governmental agency to

exercise discretion was becoming more limited. Pa-

lazzolo held that an application is not required as a

prerequisite to the filing of a regulatory takings claim

if there is reasonable degree of certainty as to the

land’s permitted use. Palazzolo at 533 U.S. 620.

Milagra, in turn, did not consider the evolution of

land use regulation. Milagra focused on the ability of

a governmental agency to exercise discretion and

found that development applications would be re-

quired prior to the filing of a lawsuit to allow a

governmental agency the opportunity to exercise

discretion and avoid a taking.

15

Most problematic of all is the holding in the Shea

case. Shea actually involved Measure D. Property

owners in the area primarily impacted by Measure D

(Livermore) had filed a number of legal challenges to

Measure D. One property owner raised a very late as-

applied takings claim. This claim was raised in oral

argument, was not briefed and was not the principal

legal challenge. However, since it was raised, the

Court of Appeal was forced to respond to it, and

issued a decision indicating that any as-applied

regulatory takings claim under Measure D would

have to be preceded by a development application.

The Shea decision is directly in conflict with the

holding in Palazzolo. The Shea decision is a classic

example of bad facts making bad law.

The decision of the Court of Appeal in the San

Leandro Rock case is similarly at odds with Palaz-

zolo. The Court of Appeal is saying that one applica-

tion is a prerequisite to any regulatory takings

claims. Specifically, the Court of Appeal found that,

since Measure D did allow for “agricultural” and

“recreational” use of the quarry property, the County

should be allowed to interpret the term “agricultural

use” and that San Leandro Rock was not in a

position to conclude how the County might interpret

these terms or to understand whether such uses were

economically viable on the quarry property. However,

with Palazzolo’s reference to reasonable certainty, it

is clear that San Leandro Rock should be allowed to

determine the likely interpretation of these terms, as

16

they are common usage and not technical in nature.

If, as an issue of fact, San Leandro Rock has made a

reasonable conclusion about the meaning of such a

term and has found such uses to be uneconomic given

the nature of its property, then, under Palazzolo, San

Leandro Rock would be allowed to file its takings

claim based on this conclusion without submitting an

unnecessary development application. The Court of

Appeal did not address the fact that San Leandro

Rock’s claims were based in part on the loss of its

“reasonable investment-backed expectation.”

lil, ARGUMENT

A. The Palazzolo Case Clearly Estab-

lished That a Development Application

Is Not a Prerequisite to All Regulatory

Takings Cases.

The United States Supreme Court decision in

Palazzolo is a recognition of the trend towards more

restrictive land use regulation. In some instances, the

discretion of a regulatory authority may be proscribed

to the extent that the outcome of a development

application can be known with reasonable certainty

prior to the submission of a development application.

If the regulatory authority lacks the ability to rectify

the application of a regulation in cases where the

regulation does cause a hardship to the property

owner that rises to the level of a taking, there is little

point in requiring the submission of an application

17

that will only result in additional costs to the prop-

erty owner and delay compensation in cases where a

regulatory taking has in fact occurred. Palazzolo

involved the regulation of a 20 acre coastal parcel of

land in Rhode Island. The parcel was purchased by

the plaintiff, Anthony Palazzolo in 1959 (it was

originally purchased by a corporation owned by Mr.

Palazzolo and subsequently transferred to his direct

ownership). The parcel consisted of 18 acres of wet-

land and 2 acres of upland. In 1971, development of

the parcel became subject to regulation by the Rhode

Island Coastal Resources Management Council

(hereinafter “Council”). In 1983, Mr. Palazzolo sub-

mitted an application to the Council to fill the entire

parcel. This application was rejected by the Council

due to the extensive impacts to wetlands. In 1985,

Mr. Palazzolo submitted a new application to fill 11

acres of the parcel. The Council rejected this applica-

tion, again due to the extensive wetland impacts. Mr.

Palazzolo subsequently filed suit in inverse condem-

nation. Palazzolo at 533 U.S. 613-615.

The Rhode Island Supreme Court held that Mr.

Palazzolo’s claim was not ripe as he had not explored

lesser development options, including reducing the

amount of wetland impacts and/or limiting develop-

ment to the 2 acre upland area which would clearly

avoid the wetland impacts that were of concern to the

Council. Palazzolo at 533 U.S. 616-618. The United

States Supreme Court disagreed, noting that it was

18

clear that the Council lacked discretion to approve

any fill of wetlands, and stated that the:

final decision requirement “responds to the

high degree of discretion characteristi-

cally possessed by land-use boards in

softening the strictures of the general

regulations they administer.” Suitum v.

Tahoe Regional Planning Agency, 520 US.

725, 738, 117 S. Ct. 1659, 137 L. Ed. 2d 980

(1997). While a landowner must give a land-

use authority an opportunity to exercise its

discretion, once it becomes clear that the

agency lacks the discretion to permit

any development, or the permissible

uses of the property are known to a rea-

sonable degree of certainty, a takings

claim is likely to have ripened. Palazzolo

at 533 U.S. 620 (emphasis added).

In Palazzolo, the Supreme Court recognized the

unfairness of a ripeness standard that had a blind

requirement for the submission of an application and

a final agency determination prior to the filing of an

action in inverse condemnation. Such a ripeness

standard allowed a regulator to avoid challenge by

keeping a property owner stuck in a pointless and

endless approval process. Palazzolo substantially

modified the ripeness doctrine by holding that a

property owner is not obligated to file a development

application and obtain a final decision on the applica-

tion if the result of the application process is rea-

sonably clear at the outset. This was perhaps most

bluntly stated in the following quote:

19

Our ripeness jurisprudence imposes obliga-

tions on landowners because “{a] court can-

not determine whether a regulation goes ‘too

far’ unless it knows how far the regulation

goes.” MacDonald, 477 U.S. at 348. Ripe-

ness doctrine does not require a land-

owner to submit applications for their

own sake. Petitioner is required to explore

development opportunities on his upland

parcel only if there is uncertainty as to the

land’s permitted use (emphasis added). Pa-

lazzolo at 533 U.S. 622.

The Supreme Court did not determine that Mr.

Palazzolo’s case was ripe because he had submitted

some applications; rather, the Supreme Court deter-

mined that the case was ripe because the outcome of

any application by Mr. Palazzolo was reasonably

clear. If a regulatory scheme is so defined that it

makes the outcome of a development application

known prior to the application, an application is not

required for the sake of process. One application is no

longer an absolute prerequisite to a takings claim.

B. The Milagra Case Involved a Discre-

tionary Decision

Milagra pre-dates Palazzolo. The plaintiff in

Milagra purchased a forty-five acre parcel in 1979 or

1980. In 1985, the plaintiff submitted an application

to the City of Pacifica for a 144 unit townhouse devel-

opment. This application was denied. In 1994, the

plaintiff submitted an application for a 64 unit single

20)

family residential development to the City of Pacifica.

The City approved development of 63 of the 64 re-

quested units. However, due to some opposition to the

development, the City submitted the matter to the

voters for approval of the development. The voters

rejected the development. The plaintiff then filed suit

in inverse condemnation. Milagra, 62 Cal.App.4th at

112-115. The Court of Appeal held that the case was

not ripe as the plaintiff had not submitted an applica-

tion for development that was permissible under the

zoning in effect at the time. The Court noted that

current zoning would allow for some commercial and

residential development, and in the event the allow-

able development was not economically viable, the

plaintiff could ask the City to exercise its dis-

cretion to grant a minor variance to allow the

approval of development that would be eco-

nomically viable. Milagra, 62 Cal.App.4th at 119.

Milagra therefore involved a regulatory scheme

that allowed the agency to exercise discretion, and

this was critical to the Court’s determination that the

case was not ripe. The regulation at issue in Milagra

is Clearly distinguishable from the stricter regulations

that are becoming more prevalent. It is notable that

the Palazzolo court rejected a Milagra analysis,

stating:

(This] ... case is quite unlike those upon

which respondents [Rhode Island] place

principal reliance, which arose when an

owncr challenged a land-use authority’s de-

nial of a substantial project, leaving doubt

21

whether a more modest submission or an ap-

plication for a variance would be accepted.

Palazzolo at 533 U.S. 620.

C. The Shea Case Was Different Proce-

durally and Factually From Palazzolo

and Milagra

Shea does post-date Palazzolo. Shea involved two

consolidated cases — one filed by Shea Homes and one

filed by Trafalgar, Inc. (hereinafter “Trafalgar”). Both

Shea Homes and Trafalgar were trying to develop

large tracts of agricultural land in Livermore in

eastern Alameda County prior to the passage of

Measure D. When Measure D was passed, both Shea

Homes and Trafalgar filed lawsuits against the

County challenging Measure D. However, these legal

challenges were all facial challenges to Measure D.

Shea Homes and Trafalgar both alleged that Measure

D violated the state constitutional requirement that

all initiatives have a “single subject” and that Meas-

ure D violated California housing law. The Trial

Court (the Alameda County Superior Court) granted

judgment on the pleadings in favor of the County.

Shea, 110 Cal.App.4th at 1253-1254. The Court of

Appeal affirmed this ruling. Shea, 110 Cal.App.4th at

1259, 1266.

Trafalgar did also include a takings claim in its

lawsuit — however, this was a facial takings claim. At

the hearing on the County’s Motion for Judgment on

the Pleadings, Trafalgar apparently realized its error

and requested, during the hearing, leave to amend to

22

allege an as-applied takings claim. However, Trafal-

gar did not present any detailed facts to support its

request, and the Trial Court ruled that Trafalgar had

not presented any evidence to indicate that it had a

ripe as-applied takings claim. The Trial Court also

entered judgment on the pleadings in favor of the

County on this claim. On appeal, Trafalgar continued

to only touch on the issue of an as-applied takings

claim under Measure D. The issue was never mean-

ingfully briefed. The limited briefing of the issue

unfortunately mischaracterized Palazzolo, and the

Court of Appeal affirmed the Trial Court's ruling,

holding that Trafalgar had not presented any facts to

indicate that it could allege denial of an application

submitted after the passage of Measure D and there-

fore no ripe as-applied takings claim. Shea, 110

Cal.App.4th at 1266-1269. The end result was a

decision that cited Palazzolo as precedent for the

decision while in fact the Skea decision was in direct

conflict with Palazzolo.

IV. CONCLUSION

It is clear that case law governing the ripeness

doctrine is in conflict, certainly less than clear, and

not consistent with the advance of statutory land use

law. If the actual status of law is that property own-

ers must submit expensive and quixotic development

applications when faced with the Measure Ds of the

world, then we have not learned from history, and

eighty-three years after the Pennsylvania Coal deci-

sion, we remain “in danger of forgetting that a strong

23

public desire to improve the public condition is not

enough to warrant achieving the desire by a shorter

cut than the constitutional way of paying for the

change.” It is now thirty years after the advent of

stricter land use regulation and twenty years after

the development of initiatives that removed the

ability of the government to exercise discretion. It is

time to develop a new ripeness doctrine that ad-

dresses the evolution of land use regulation in a

manner that responds to the fundamental concern of

the Pennsylvania Coal decision.

San Leandro Rock supports the Petition for a

Writ of Certiorari filed by Charles A. Pratt Construc-

tion Co., Inc., and respectfully requests that the

Petition be granted. Clear guidance on the issue of

ripeness is needed.

Dated: December 22, 2008

Respectfully submitted,

ANTONIO ANZIANO*

JAMES M. WH’ “AKER

Attorneys for Amicus Curiae

San Leandro Rock Co., Inc.

*Counsel of Record