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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

\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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0822%3A7. Public record. Not legal advice.