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

5S Cs ) RECEIVED

No. 08-668 DEC 2 2 2008

In The

Supreme Court of the Aunited States

CHARLES A. PRATT CONSTRUCTION CO., INC.,

Petitioner,

vV.

CALIFORNIA COASTAL COMMISSION,

Respondent.

¢

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate Dist., Div. 6

a

vv

BRIEF FOR WESTERN MANUFACTURED

HOUSING COMMUNITIES ASSOCIATION AS

AMICUS CURIAE SUPPORTING PETITIONER

>

ROBERT H. THOMAS

Counsel of Record

CHRISTI-ANNE H. KUDO CHOCK

MATTHEW T. EVANS

DAMON KEY LEONG

KUPCHAK HASTERT

1003 Bishop Street

1600 Pauahi Tower

Honolulu, Hawaii 96813

($08) 531-8031

www.hawalilawyer.com

Counsel for Amicus Curiae

QUESTIONS PRESENTED

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

438 U.S. 104, 124 (1978), the Court held that

claims that government land regulation effect a

regulatory taking in violation of the 5th Amend-

ment must be decided ad hoc based on their indi-

vidual facts.

Question: Consistent with this constitutional

baseline, can the California courts hold as a

matter of law that regulations cannot be a tak-

ing even though they allow no more than 20% of

a parcel (and likely far less than that) to be put

to viable private use?

In Williamson County Reg. Plan. Commn., v.

Hamilton Bank, 473 U.S. 172, 186 (1985), the

Court held that a regulatory taking claim was

not ripe for litigation until the regulator had

reached a “final” determination of what use

would be allowed on the property.

Question: When (a) a property owner undergoes

an eight year administrative process, including

environmental evaluation of ten different ways to

use the property, but (b) the regulatory agency re-

jects all alternatives, then (c) has there been suf-

ficient basis for an evidentiary showing that no

reasonable use will be allowed, in order to dem-

onstrate “finality” for 5th Amendment ripeness

purposes?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................secceeeeeees i

ees CP AUTHORITIES ............60--000ccssescereneses ili

IDENTITY AND INTEREST OF AMICUS

II os -icscsde cannaicrleaiacacveeintoud sneeaiubuataamneinaees 1

SUMMARY OF ARGUMENT .....................04. os 2

IE assis nce piaieccoscaliunaianmmsstonan ae aman D

I. SINCE THE PENN CENTRAL TEST IS

HERE TO STAY, THE COURT SHOULD

CLARIFY IT IS NOT SUBJECT TO

BRIGHT-LINE RULEG...........-2-...2--2c-cs0-0s: 5

Il. DENIAL OF A DETAILED DEVELOP-

MENT PROPOSAL IS FINAL ENOUGH .... 14

I sc icccuseseainenecen owieattecemanbesieiecieneuaaaeoaanan 19

lil

TABLE OF AUTHORITIES

Page

CASES

Air Pollution Variance Bd. of Colorado v. W.

Alfalfa Corp., 416 U.S. 861 (1974)...................cccceeees 6

Andrus v. Allard, 444 U.S. 51 (1979).......................5, 7

Armstrong v. United States, 364 U.S. 40 (1960)........ 11

Boos v. Barry, 466 U.S. SIZ (1GBB) .....6.0.cccvsevecsecsesvesess 6

Brace v. United States, 72 Fed. Cl. 337 (2006) .......... 12

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of New York, 447 U.S. 557 (1980)............... 6

Charles A. Pratt Constr. Co., Inc. v. California

Coastal Comm’n, 76 Cal. Rptr. 3d 466 (Cal.

Ge II hoctansce tier cubis ceedocuiecieencetannaceceulsvarsnpeasnes 9

City of Chicago v. Intl Coll. of Surgeons, 522

Be A SR IIE tes ache <a vessueontveesagabacniincted me abcouceaseceees 16

City of Monterey v. Del Monte Dunes at Mon-

terey, Lid., 526 U.S. GBT (IGGB) ....ccisscevsecesccsecasesereees 8

City of Monterey v. Del Monte Dunes at Mon-

terey, Ltd., 920 F.2d 1496 (9th Cir. 1990)............... 17

de St. Aubin v. Flacke, 505 N.Y.S. 2d 859 (N Y.

I iad: iti taccdintlancdai naan oueuaundneniptiencsnadne da Moa cai piled apie 11

Del-Prairie Stock Farm, Inc. v. County of

Walworth, 572 F. Supp. 2d 1031 (E.D. Wis.

2: BRR SN ee Nes DOL BE, See re 2 17

Dolan v. City of Tigard, 512 U.S. 374 (1994)............... 6

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)......... 5, 7

iv

TABLE OF AUTHORITIES ~ Continued

Forseth v. Vill. of Sussex, 199 F.3d 363 (9th Cir.

EE satescd acer vincascoteeNvapeieabeeismmpabardoiaibenasnereniaeie 15

Frall Developers, Inc. v. Bd. of County Comm’rs

of Frederick County, 2008 U.S. Dist. LEXIS

78912 (D. Md. Sep. 30, 2008)....................-...sses0e00e- 12

Friedenburg v. New York State Dep't of Envtl.

Conservation, 767 N.Y.S. 2d 451 (N.Y. App.

Be EI Dcaipsourcaiss ccuupdneneveunsticduadaaieeneetalanshanatoslaniiess 12

Galland v. City of Clovis, 16 P.3d 130 (Cal.

SUPINE icrcist.rusi cae snigauniegs dav edarionnreectesacuenmenaaamaaieaeitions 1

Gamble v. Eau Claire County, 5 F.3d 285 (7th

BN MEET icousnicnnaddsdcauioenseteeencpascaseumeatmaseenmevdaaeds 15

Goldblatt v. Town of Hempstead, 369 U.S. 590

SUC. 4 cds orton nada naiesenneenseeneneaanedammamnecentes 8

Kaiser Aetna v. United States, 444 U.S. 164

ccd ae arcslen csprtdiessec Used eaaicariries obese peaer aaiaisapnvuatiegeagey siuacies 7

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

AINE TEER Wed eee a ee NaN Ce TT passim

Loretto v. Teleprompter Manhattan CATV

Ort Ue aD aevininnccccnninavinseienenvtpiocs 7,13

Lucas v. South Carolina Coastal Council, 505

Fe BO CE isis vccoincisonvcttnwasviisansevions 7, 8,10, 11,13

MacDonald, Sommer & Frates v. Yolo County,

re I IS sardicdecsteencecoksacneciansnicoiaiineduncanabions 17

Mann v. Georgia Dep't of Corr., 653 S.E.2d 740

Si; GPT TT otis ieiuaidehenccenebanecuneaamaeanael 12, 13

TABLE OF AUTHORITIES — Continued

Page

Manufactured Home Communities, Inc. v.

County of San Luis Obispo, 84 Cal. Rptr. 3d

367 (Cal. Ct. App. 2008) 00.0... eee eeceseeeeeeeee eee eee 1

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) .......... 6

New York v. Burger, 482 U.S. 691 (1987).....0.0- ee. 6

Noghrey v. Town of Brookhaven, 852 N.Y.S. 2d

220 (N.Y. App. Div. 2008)........................ 9,10, 11, 13

Nollan v. California Coastal Comm’n, 483 U.S.

Nee cu acunecwenvencunecenandevcseerewasrresenwe 7

Palazzolo v. Rhode Island, 533 U.S. 606 (2001).......... 8

Penn Central Transp. Co. v. New York City, 438

BN ID ec cvcrenncinneseccvoneenceesenseeenseresceeees passim

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

NE vreieeiicccininivacevevrvevesesasersseveseseceveeen 5,7

Pompa Constr. Corp. v. City of Saratoga

Springs, 706 F.2d 418 (2d Cir. 1983)... 12

San Remo Hotel, L.P. v. City & County of San

Francisco, 545 U.S. 323 (2005)... eeeceeeeeee 14

Sands North, Inc. v. City of Anchorage, 537

F. Supp. 2d 1032 (D. Alaska 2007) ....................0.. 12

Snaza v. City of Saint Paul, 2008 WL 5085109

(8th Cir. Dec. 4, 2008) ....................2.cc.ccesesssssseceeeeees 16

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’!

Planning Agency, 535 U.S. 302 (2002) ............0....... 2

West Linn Corporate Park, L.L.C. v. City of

West Linn, 534 F.3d 1091 (9th Cir. 2008)............... 15

TABLE OF AUTHORITIES — Continued

Page

Williamson County Reg’l Planning Comm'n v.

Hamilton Bank of Johnson City, 473 US.

errr e cos cel bnenierscestgesebnevesiees ....Dassim

Yamagiwa v. City of Half Moon Bay, 528

F. Supp. 2d 1036 (N.D. Cal. 2007)................... 17

OTHER AUTHORITIES

John D. Echeverria, Making Sense of Penn

Central, 23 UCLA J. Envr_L. L. & Pow’y 171

an nccbncviadacvstivnvasavessevers 2, i3

Petition For a Writ of Certiorari, Agripost, LLC

v. Miami-Dade County, Florida, No. 08-567

Neen I wacheaswenveciubevenerene 14

Petition For a Writ of Certiorari, Braun v. Ann

Arbor Charter Twp., No. 08-250 (Aug. 25,

2008) (cert. denied Dec. 1, 2008).................002..000ce 14

IDENTITY AND INTEREST

OF AMICUS CURIAE

Amicus curiae Western Manufactured Housing

Communities Association (WN.A) is a_ nonprofit

organization created in 1945 for the exclusive purpose

of promoting and protecting the interests of owners,

operators and developers of manufactured home

communities in California.. The vast majority of

WMaA’s member communities are family owned and

operated businesses dedicated to providing quality

housing to Californians. WMA's activities include

representation before the California State Legisla-

ture, regulatory agencies and local elected officials.

Through the Committee to Save Property Rights,

WMA represents the industry in the courts by par-

ticipating as amicus curiae in selected cases. See, e.g.,

Manufactured Home Communities, Inc. v. County of

San Luis Obispo, 84 Cal. Rptr. 3d 367, 370 (Cal. Ct.

App. 2008) (“The Constitution protects everyone, the

poor, the wealthy, the weak, the powerful, the guilty

and the innocent. ... Here we add to our list, mobile-

home park owners.”); Galland v. City of Clovis, 16

P.3d 130 (Cal. 2001) (substantive due process claim).

+

' All counsel of record consented to the filing of this brief,

and received notice of the intention to file this brief at least ten

days before it was due. This brief was not authored in any part

by counsel for either party, and no person or entity other than

amicus made a monetary contnbution toward the preparation or

submission of this brief.

2

SUMMARY OF ARGUMENT

The first Question presents “the next big thing”

in regulatory takings law — how the ad hoc Penn

Central Transp. Co. v. New York City, 438 U.S. 104

(1978) standard is being applied by the lower courts.”

More than thirty years ago, this Court estab-

lished a three-factor framework for analyzing most

regulatory takings claims, and this standard has been

recently reaffirmed as the “default” test. See Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 538-39 (2005). See

also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’!

Planning Agency, 535 U.S. 302, 326 n.23 (2002)

(quoting Palazzolo v. Rhode Island, 533 U.S. 606, 633

(2001) (O’Connor J., concurring) (“[OJur polestar ...

remains the principles set forth in Penn Central

itself,” which require a “careful examination and

weighing of all the relevant circumstances.”)). These

circumstances include consideration of “[t]he eco-

nomic impact of the regulation on the claimant and,

particularly, the extent to which the regulation has

interfered with distinct investment-backed expecta-

tions,” and the “character of the governmental ac-

tion.” Penn Central, 438 U.S. at 124 (cited in Lingle,

044 U.S. at 538-39).

* See John D. Echeverria, Making Sense of Penn Central, 23

UCLA J. EnvtL. L. & Po’y 171, 172 (2005) (“The next ‘big

thing’— perhaps the last big thing —- in regulatory takings law

will be resulving the meaning of the Penn Central factors.”).

3

Because this framework eschews any “set for-

mula” and relies instead on “essentially ad hoc,

factual inquiries,” it is, by its very nature, incapable

of being subject to the rigid “20 percent is enough

value” per se rule established by the California court.

The decision below ignored the requirement of a

“weighing of all the relevant circumstances,” and

established a bright-line rule focused solely on eco-

nomic impact: when the government’s denial of a

development proposal leaves a property owner with

no more than 20 percent (or as little as 1120 square

feet) of her land available for development, the re-

maining two Penn Central factors become irrelevant.

This arbitrary rule is apparently based on nothing

more than caprice, since the court below offered no

analysis or rationale in support. Lacking this Court’s

clarification, the default regulatory takings test has

become a standardless exercise in judicial intuition,

hidden behind a gloss of objectivity.

The second Question also presents a critical

issue. The ripeness requirement of Williamson

County Reg’ Planning Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985) has two parts.

First, there must have been an indication by the

government regarding what uses it will or will not

allow. The “final decision” rule requires “the govern-

ment entity charged with implementing the regula-

tions [to have] reached a final decision regarding the

application of the regulations to the property at

issue.” Williamson County, 473 U.S. et 186. This

requirement was formulated to avoid having courts

4

decide Penn Central claims that a regulation has

sufficiently impacted an owner’s use of her property,

when it remains uncertain what uses the government

may allow. See id. at 191 (The Penn Central “factors

simply cannot be evaluated until the administrative

agency has arrived at a final, definitive position

regarding how it will apply the regulations at issue to

the particular land in question.”). Second, Williamson

County requires a property owner to seek — and be

denied — compensation in state court, before coming

to federal court and suffering dismissal under preclu-

sion and full faith and credit principles. These two

rules have proven to be tools for gamesmanship and

illogical procedural traps instead of a way to insure

regulatory takings claims are ready for judicial

review.

The final decision rule cannot be applied to bar

the courthouse door based solely on the government’s

assertion there may be some alternative under which

development would be allowed. Denial of one viable

application is enough.

This Court should review the decision of the

California Court of Appeal.

+

5

ARGUMENT

I. SINCE THE PENN CENTRAL TEST IS HERE

TO STAY, THE COURT SHOULD CLARIFY

IT IS NOT SUBJECT TO BRIGHT-LINE

RULES

According to the “storied but cryptic formulation”

in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415

(1922), while property may be regulated to a certain

extent, “‘if regulation goes too far it will be recog-

nized as a taking.’” Lingle v. Chevron U.S.A. Inc., 544

U.S. 528, 537 (2005) (quoting Mahon, 260 U.S. at

415). In other words, government’s power to enact

regulations affecting private property operates on a

continuum, and when it crosses an equitable bound-

ary determined in most cases by reference to a multi-

tude of case-specific facts, the label attached to the

exercise of power becomes irrelevant, and what matters

is the impact of the regulation on the owner. See

Mahon, 260 U.S. at 413 (Kohler Act enacted pursuant

to state’s police power went “too far”); Andrus uv.

Allard, 444 U.S. 51, 64 & n.21 (1979) (federal power

to protect endangered species measured against

Takings Clause; “there is no abstract or fixed point at

which judicial intervention under the Takings Clause

becomes appropriate”); First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S.

304, 316 (1987) (“While the typical taking occurs

when the government acts to condemn property in the

exercise of its power of eminent domain, the entire

doctrine of inverse condemnation is predicated on the

proposition that a taking may occur without such

6

formal proceedings.”); Lingle, 544 U.S. at 537 (This

Court “recognized that government regulation of

private property may, in some instances, be so oner-

ous that its effect is tantamount to a direct appro-

priation or ouster — and that such ‘regulatory takings’

may be compensable under the Fifth Amendment.”).”

If a regulation has the same effect as a seizure by an

* As this Court recognized in Dolan v. City of Tigard, 512

U.S. 374 (1994), a government action is not immune from

judicial review simply because it is labeled an “economic” or

“police power” regulation if it impacts property disproportion-

ately:

But simply denominating a governmental measure as

a “business regulation” does not immunize it from

constitutional challenge on the ground that it violates

a provision of the Bill of Rights. ... We see no reasons

why the Takings Clause of the Fifth Amendment, as

much a part of the Bill of Rights as the First Amend-

ment or Fourth Amendment, should be relegated to

the status of a poor relation in these comparable cir-

cumstances.

Id. at 392 (citing Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978);

Air Pollution Variance Bd. of Colorado v. W. Alfalfa Corp., 416

U.S. 861 (1974); New York v. Burger, 482 U.S. 691 (1987); Cent.

Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York,

447 U.S. 557 (1980)). Similar analysis is applied to other

limitations on government power that protect fundamental

rights, and these limitations do not depend on the power the

government claims to be exercising. For example, a police power

regulation is reviewed with strict scrutiny if it is alleged to

impact free speech mghts, even if it does not appear to be

affirmative government censorship. See, e.g., Boos v. Barry, 485

U.S. 312 (1988) (invalidating law restricting placement of signs

within 500 feet of embassy because it was not narrowly tai-

lored).

affirmative exercise of eminent domain, the govern-

ment has the choice to either back off the regulation,

or, if it desires to continue to regulate, pay just com-

pensation. First English, 482 U.S. at 316 (Fifth

Amendment requires both invalidation and just

compensation remedies); Kaiser Aetna v. United

States, 444 U.S. 164, 172 (1979) Gimposition of a

navigational servitude pursuant to the federal com-

merce power would be an invalid taking). “The rub, of

course, has been — and remains — how to discern how

far is ‘too far.’” Lingle, 544 U.S. at 538 (citing Andrus,

444 U.S. at 65; Mahon, 260 U.S. at 413).

In some cases, it is easy. This Court has estab-

lished two categories of regulatory actions that gen-

erally will be deemed per se takings. First, “where

government requires an owner to suffer a permanent

physical invasion of her property — however minor —

it must provide just compensation.” Lingle, 544 U.S.

at 538 (citing Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982) (law requiring

property owners to allow installation of a small cable

box on buildings was a taking); Nollan v. California

Coastal Comm’n, 483 U.S. 825 (1987) (agency re-

quired landowner to dedicate public easement as a

condition of development approvals). Second, a taking

occurs when a regulation completely deprives an

owner of “‘all economically beneficial us[e]’ of her

ace

property.” Lingle, 544 U.S. at 538 (quoting Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 1019

(1992)) (emphasis omitted).

8

In the remainder of cases, the rules are not as

easily applied. Regulatory takings challenges outside

of the two “relatively narrow” classes of physical

invasions and economic wipeouts are analyzed by the

three-part Penn Central standard. In that case, this

Court “acknowledged that it had hitherto been unable

to develop any set formula for evaluating regulatory

takings claims, but identified several factors that

have particular significance.” Penn Central, 438 U.S.

at 124. Those factors include: (1) the “economic im-

pact” of the government action or regulation; (2) how

this action “interferes with distinct investment-

backed expectations;” and (3) the “character” of the

regulation or government action. Jd. (citing Goldblatt

v. Town of Hempstead, 369 U.S. 590, 594 (1962)). The

Penn Central inquiry is inherently fact-based, and

“depends largely upon the particular circumstances

[in that] case.” Id. These considerations, “though each

has given rise to vexing subsidiary questions — have

served as the principal guidelines for resolving regu-

latory takings claims that do not fall within the

physical takings or Lucas rules.” Lingle, 544 U.S. at

539 (citing Palazzolo v. Rhode Island, 533 U.S. 606,

617-18, 632-34 (2001) (O’Connor, J., concurring)).

Questions of economic viability and diminution of use

and value are factual inquiries. City of Monterey v.

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 720-

21 (1999) (“[W]e hold that the issue whether a Jand-

owner has been deprived of all economically viable

use of his property is a predominantly factual ques-

tion .. . [a] question is for the jury.”).

9

The “20 percent is enough value” rule established

by the court below transforms the economic impact

factor into a legal issue and the only relevant consid-

eration, despite this Court’s recent caution that no

Penn Central factor is entitled to conclusive weight.

Lingle, 544 U.S. at 539. The California court provided

no rationale for this bright-line rule:

Pratt claims that 80 percent of his tract is

designated ESHA [Environmentally Sensi-

tive Habitat Area} and that no development

is possible in an ESHA. Assuming Pratt’s

claim is true, that leaves 20 percent of the

121-acre tract, over 24 acres, available for

development.

Charles A. Pratt Constr. Co., Inc. v. California Coastal

Comm’n, 76 Cal. Rptr. 3d 466, 475 (Cal. Ct. App.

2008).

Yet, the decision below — while inexplicable — is

not surprising, given the difficulty the lower courts,

property owners, and governments have understand-

ing the Penn Central theory and applying the eco-

nomic impact factor. For example, the court in

Noghrey v. Town of Brookhaven, 852 N.Y.S. 2d 220

(N.Y. App. Div. 2008) reversed a jury’s federal regula-

tory takings verdict. The plaintiff purchased parcels

zoned for shopping plazas with the intention of build-

ing one. The town adopted a moratorium to study the

zoning on the parcels and eventually rezoned them

for residential uses. The property owner brought

regulatory takings claims under the Fifth Amend-

ment and state law. The jury determined the property

10

owner had not established a total regulatory taking

pursuant to Lucas but found that the owner had

established a partial regulatory taking under the

Penn Central test. Noghrey, 852 N.Y.S. 2d at 221. The

trial court instructed the jury on the three factors:

With respect to the first [Penn Central] fac-

tor; that is, the economic impact of the regu-

lation, [the property owner] claims that the

values of his properties were reduced sub-

stantially. You may consider the values of the

properties immediately before and immedi-

ately after the rezoning, and whether or not

this reduction in value was a substantial re-

duction relative to the value before the prop-

erties were rezoned. [The property owner]

must prove by a preponderance of the evi-

dence that the rezoning deprived him of any

use permitted by the residential zoning clas-

sification and this resulted in .. . a near total

or substantial decrease or significant reduc-

tion in value.

Id. (emphasis omitted). The appellate court held this

jury instruction did not properly convey the Penn

Central standard regarding economic impact, even

though it did. Citing Lucas for the proposition that a 95

percent diminution of value would not result in a per se

taking because it was “one step short of complete,” the

court of appeals conflated the per se Lucas rule (which

requires an economic wipeout) with Penn Central’s

economic impact factor which does not contain any

“set formula” for when a diminution of value will

11

result in a taking, when considered along with the

other two factors. Id.

Thus, while a “substantial” or “significant” dimi-

nution of value will not necessarily result in a Lucas

per se taking, this only means a trial is necessary to

determine whether — in light of the other Penn Cen-

tral factors — a less-than-total reduction in value is a

taking because the “[glovernment [is] forcing some

people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as

a whole.” Armstrong v. United States, 364 U.S. 40, 49

(1960).

Instead, like the California court in the case at

bar, Noghrey established a bright-line rule that even

“substantial” and “significant” economic impacts are

insufficient as a matter of law, regardless of the

property owner’s distinct investment-backed expecta-

tions or the character of the government action. See

Noghrey, 852 N.Y.S. 2d at 222 (“The terms ‘substan-

tial’ and ‘significant’ were insufficient to convey the

extent of diminution necessary to support a taking.”).

The court held that for even a partial Penn Central

taking, the economic impact must be “one step short

of complete,” and that the proper test is whether the

regulation left only a “bare residue” of value. See id.

at 222-23 (On remand, the court “should instruct

the jury that the proper inquiry is whether the regu-

lation left only a ‘bare residue’ of value, or use similar

language which would properly convey to the jury

the high threshold of loss necessary to support a

partial regulatory taking.”) (citing de St. Aubin v.

12

Flacke, 505 N.Y.S. 2d 859 (N.Y. 1986); Brace v. United

States, 72 Fed. Cl. 337 (2006); Pompa Constr. Corp. v.

City of Saratoga Springs, 706 F.2d 418 (2d Cir. 1983);

Friedenburg v. New York State Dep't of Envtl. Conser-

vation, 767 N.Y.S. 2d 451 (N.Y. App. Div. 2003)).°

The lower courts’ confusion is not limited to cases

where liability is denied. In Mann v. Georgia Dep't of

Corr., 653 S.E.2d 740 (Ga. 2007), the Georgia Su-

preme Court invalidated under the Takings Clause a

statute which prohibited registered sex offenders

from residing within 1,000 feet of a child care facility.

Mann, an offender, was living legally in a home he

owned when a child care facility relocated to within

1,000 feet of him. The Department of Corrections

ordered Mann to leave upon pain of arrest. The court

noted the effect of the Georgia statute was not simply

to interfere with Mann’s property rights, but to

dispossess him of his home. The court held “the effect

of [the statute] is to mandate appellant’s immediate

physical removal from his Hibiscus Court residence.

* See also Frall Developers, Inc. v. Bd. of County Comm'rs of

Frederick County, 2008 U.S. Dist. LEXIS 78912, at *45-*46 (D.

Md. Sep. 30, 2008) (only analyzing case under the per se rules,

and not applying Penn Central factors, concluding no taking

occurred because plaintiff was not deprived of all value); Sands

North, Inc. v. City of Anchorage, 537 F. Supp. 2d 1032, 1041 (D.

Alaska 2007) (dismissing case because “Plaintiff’s bare asser-

tion that ‘the regulation interferes with Plaintiff’s investment-

based expectations’ is inadequate to survive a motion for judg-

ment on the pleadings”).

13

It is ‘functionally equivalent to the classic taking in

which government directly ... ousts the owner from

his domain.’” Jd. at 744 (citing Lingle, 544 U.S. at

539). Despite the physical invasion — the statute in

effect invited anyone but Mann to occupy his house,

and had the effect of evicting him — the court applied

the ad hoc Penn Central test instead of the Loretto

per se standard because of the court’s misunderstand-

ing that Penn Central governed all other takings not

within the Lucas wipeout rule. Mann, 653 S.E.2d at

742-44.

Penn Central’s factors have also been the subject

of academic criticism and a call for clarification:

If the Penn Central test is to serve as more

than legal decoration for judicial rulings

based on intuition, it is imperative to clarify

the meaning of Penn Central.

John D. Echeverria, Making Sense of Penn Central,

23 UCLA J. EnvtL. L. & Pow’y 171, 174-75 (2005).

“Intuition,” not the rule of law, appears to be what

guided the court below to come up with its arbitrary

20 percent rule. Since Penn Central indeed appears to

be “here to stay,” id., the petition in the case at bar

presents the opportunity to clarify that “set formulas”

such as those imposed by the California court in this

case and the New York court in Noghrey, are not

permitted under Penn Central.

14

Il. DENIAL OF A DETAILED DEVELOPMENT

PROPOSAL IS FINAL ENOUGH

Can more be said about the ripeness rules estab-

lished by Williamson County Reg’l Planning Comm’n

v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985) that has not been already said? In San Remo

Hotel, L.P. v. City & County of San Francisco, 545

U.S. 323 (2005) four Justices of this Court wrote

separately to note their belief the exhaustion re-

quirement of Williamson County should be revisited:

Finally, Williamson County’s state-litigation

rule has created some real anomalies, justi-

fying our revisiting the issue. ... I joined the

opinion of the Court in Williamson County.

But further reflection and experience lead

me to think that the justifications for its

state-litigation requirement are suspect,

while its impact on takings plaintiffs is dra-

matic.... In an appropriate case, I believe

the Court should reconsider whether plain-

tiffs asserting a Fifth Amendment takings

claim based on the final decision of a state or

local government entity must first seek com-

pensation in state courts.

Id. at 351 (Rehnquist, C.J., concurring). This term,

two petitions have called for the case to be reconsid-

ered. See Petition For a Writ of Certiorari, Braun v.

Ann Arbor Charter Twp., No. 08-250 (Aug. 25, 2008)

(cert. denied Dec. 1, 2008); Petition For a Writ of

Certiorari, Agripost, LLC v. Miami-Dade County,

Florida, No. 08-567 (Oct. 27, 2008). There is no

reason to expect this trend to diminish because in the

15

more than 20 years since Williamson County, the

ripeness rules have been employed to create a byzan-

tine procedural maze, and have transformed the

process for vindicating federal constitutional rights

into a pleadings game designed to bleed out property

owners (who do not pay their attorneys on salary, as

inunicipal governments do) and avoid addressing the

merits of takings and other constitutional claims.’

After more than 80 years of the modern regulatory

takings doctrine, the law might be expected to have

progressed beyond the issue of whether a complaint

states a claim for relief.

For the latest example of the procedural round-

about Williamson County has wrought, see West Linn

Corporate Park, L.L.C. v. City of West Linn, 534 F.3d

1091 (9th Cir. 2008), a case in which the Ninth Cir-

cuit, after removal of a regulatory takings claim from

state court and trial in federal court, referred the

takings issues in the case to the Oregon Supreme

Court. Like a good plaintiff is required to do under

Williamson County, the property owner began its

odyssey in state court. It claimed, among other

things, that exactions the city imposed on the

* Even though Williamson County was based on the texi uf

the Takings Clause, see Williamson County, 473 U.S. at 194

((T]he Fifth Amendment does not proscribe the taking of

property; it proscribes taking without just compensation[.]”),

some courts apply the doctrine to due process and equal protec-

tion claims. See, e.g., Gamble v. Eau Claire County, 5 F.3d 285,

286-88 (7th Cir. 1993) (substantive due process); Forseth v. Vill.

of Sussex, 199 F.3d 363, 369 (9th Cir. 2000) (equal protection).

16

approval of its development proposals took its prop-

erty in violation of the United States and Oregon

constitutions, and that the city retaliated against it

for asserting its constitutional rights.

Despite Williamson County’s ripeness require-

ments, however, the city removed the case to federal

court on the basis of federal question jurisdiction. The

district court did not question removal because this

Court has not yet recognized the asymmetry in the

fact that a landowner cannot institute a federal

takings claim in federal court because there purport-

edly is no ripe federal question, but the government is

free to remove a federal takings claim to federal court.

See, e.g., City of Chicago v. Int'l Coll. of Surgeons, 522

U.S. 156, 163 (1997) (city removed regulatory takings

case to federal court, and neither district court, court

of appeals, nor this Court raised Williamson County

ripeness). After trial in which the district court held

partially in favor of the property owner on its inverse

condemnation claims and its claims for municipal

retaliation, the Ninth Circuit punted the federal

takings claims back to state court and certified three

questions to the Oregon Supreme Court, where the

case now sits. Thus, litigation which was commenced

in 2001 in the Oregon courts as Williamson County

requires, is now — after a federal trial and appeal —

back in state court awaiting a determination whether

the complaint is valid. See also Snaza v. City of Saint

Paul, 2008 WL 5085109, at *3 (8th Cir. Dec. 4, 2008)

(property owner commenced regulatory takings

17

claims in state court, and city removed to federal

court where it successfully asserted the claims were

not ripe). But see Del-Prairie Stock Farm, Inc. v.

County of Walworth, 572 F. Supp. 2d 1031 (E.D. Wis.

2008) (remanding removed case to state court);

Yamagiwa v. City of Half Moon Bay, 523 F. Supp. 2d

1036, 1110 (N.D. Cal. 2007) (refusing to remand a

case removed by the government because “the City

having invoked federal jurisdiction, its effort to

multiply these proceedings by a remand to state court

smacks of bad faith”). In Yamagiwa, not only did the

city remove the case to federal court, it had the

audacity to ask the court after a weeks-long trial

which it lost, to dismiss the case since it only could

have been brought by the plaintiff in state court —

which it had been. Such are the arguments William-

son County not only allows, but positively encourages.

The final decision rule was not intended to re-

quire a search for some metaphysical future time

when the government finally admits its decision

about the possible uses of the plaintiff’s property is

utterly and absolutely unchangeable. See, e.g., Mac-

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

340, 350 n.7 (1986) (“[A] property owner is of course

not required to resort to piecemeal litigation or oth-

erwise unfair procedures in order to obtain [a final]

determination[.]”) (citing Williamson County, 473

U.S. at 205-06 (Stevens, J., concurring)); City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 920

F.2d 1496, 1507 (9th Cir. 1990) (reversing trial court’s

dismissal of claim because city’s position was final

18

enough to make the case ripe for review). Instead, the

rule should take into account the reality of the land

use planning and entitlement process where devel-

opment applications are not blindly submitted by

property owners, reviewed by government planners,

and then either accepted or rejected outright. The

land use entitlement process is neither cheap, nor

easy. Consequently, property owners most often work

with government officials before, during, and after a

development application is submitted to tailor the

proposal to insure that any government concerns are

answered, and to maximize the chances the landown-

ers’ desires are met.

Where, as in the case at bar, a property owner

submits a detailed development proposal, consults

with the government for years, proposes multiple

alternatives for development, and the government

responds that denial of the application is the “only

appropriate course,” then its denials are final enough

for a court to evaluate, and final enough to allow the

landowner to get past “Go” and present its case.

¢

19

CONCLUSION

For the foregoing reasons, amicus curiae respect-

fully requests the Court grant the Petition for a Writ

of Certiorari.

DECEMBER 2008.

Respectfully submitted,

ROBERT H. THOMAS

Counsel of Record

CHRISTI-ANNE H. KuDo CHOCK

MATTHEW T. EVANS

DAMON KEY LEONG

KUPCHAK HASTERT

1003 Bishop Street

1600 Pauahi Tower

Honolulu, Hawaii 96813

(808) 531-8031

www.hawaiilawyer.com

Counsel for Amicus Curiae