# 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0822%3A8. Public record. Not legal advice.