US Supreme Court Briefs

No. 99-2047
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In The
Supreme Court of the United States
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ANTHONY PALAZZOLO,
Petitioner,

v.

RHODE ISLAND ex rel. PAUL J. TRAVARES,
General Treasurer, and
COASTAL RESOURCES MANAGEMENT COUNCIL,
Respondents.
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On Writ of Certiorari to the
Supreme Court of Rhode Island
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BRIEF OF THE CALIFORNIA COASTAL PROPERTY
OWNERS ASSOCIATION AS AMICUS CURIAE IN
SUPPORT OF PETITIONER
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MARK E. HADDAD
CATHERINE VALERIO BARRAD
RONALD L. STEINER
SIDLEY & AUSTIN
555 West Fifth Street
Suite 4000
Los Angeles, CA 90013
(213) 896-6000
CARTER G. PHILLIPS*
SIDLEY & AUSTIN
1722 Eye Street, NW.
Washington, D.C. 20006
(202) 736-8000
Counsel for Amicus CuriaeNovember 22, 2000* Counsel of Record========================================



TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

  1. A PROPERTY OWNER MAY BRING A TAKINGS CHALLENGE TO GOVERNMENTAL ACTION THAT PREDATES THE OWNER'S ACQUISITION OF THE PROPERTY

    1. Nollan Held That Owners May Challenge Physical Takings That Predate Their Purchase

    2. Lucas Did Not Change The Standing Of Subsequent Owners

  2. THE CALIFORNIA COASTAL COMMISSION'S CONTINUING EFFORTS TO DENY STANDING TO SUBSEQUENT OWNERS ILLUSTRATES THE BROAD IMPORTANCE OF THE FIRST QUESTION PRESENTED

    1. Pending California Litigation

    2. The California Coastal Commission's Policies Are Rendering Nollan A Nullity

CONCLUSION


INTEREST OF AMICUS CURIAE[1]

Amicus California Coastal Property Owners Association ("Association") is an association of owners of property located within the highly regulated California coastal zone. The Association was formed in response to the California Coastal Commission's failure to implement and abide by this

1Pursuant to Rule 37.6 of this Court, amicus states that no party had any role in writing this brief, and that no one other than amicus or its counsel made a monetary contribution to the preparation or submission of this brief. This brief is being filed in accordance with the consent of the parties; their letter of consent has been filed with the Clerk.

Court's decision in Nollan v. cl'alzfornia Coastal Commission and by the terms of the Commission's statutory charter. The Association's principal purpose is to advocate for and to help ensure that the regulation of private property, development, and public beach access along the coast of California is consistent with state and federal law and the Constitution of the United States, and that it reflects an appropriate balance between the interests of the public in coastal access and preservation and the constitutional rights of coastal property owners to the frill enjoyment and use of their property.

The Association will address the first question presented by the petition -- whether property owners lack standing to bring takings challenges to government action that predates the acquisition of their property. This is a question of enormous importance. It is vital not only to disputes involving the particular type of regulatory taking at issue here (an ordinance that is alleged to deny the owner all economically beneficial use of his property), but also to all regulatory takings claims, including those, as in Nollan, that involve a physical invasion of property.

In particular, this issue is at the heart of a number of pending disputes involving coastal property in California. Despite this Court's seemingly unequivocal holdings in Nollan, Dolan, and Lucas, courts and public agencies, including the California Coastal Commission, are currently using the same arguments adopted by the Rhode Island Supreme Court to bar property owners from challenging Nollan-like physical takings because they did not own the property at the time the unconstitutional permit condition was imposed. Thus, the Association has a significant interest in the first issue presented in this case.

The Association takes no position on the remaining questions presented, or on the ultimate merits of this dispute. As property owners who enjoy and whose property benefits from the preservation of the unique environment of the coastal zone, the Association's members filly appreciate theneed to weigh carefully the impact of any proposal to alter the often-fragile ecological balance in that zone. We acknowledge that state and local governments have good reason to be concerned and cautious regarding proposals for coastal development, and certainly that includes any proposal that might alter or destroy wetlands. Nevertheless, the Association also believes that even the most important environmental objectives must be pursued consistent with the dictates of the United States Constitution, and that this Court's prior decisions in NoIlan and Lucas have already established the bounds within which governments constitutionally may act. Foreclosing property owners from even bringing their takings challenges to court, as Rhode Island has done, and as the California Coastal Commission is seeking to do, falls well outside these constitutional limits.

SUMMARY OF ARGUMENT

The threshold issue in this case is whether a property owner is barred forever from challenging government action as a taking because that action occurred prior to the owner's acquisition of the property. The question arises here in the context of one type of per se "regulatory taking," involving a governmental action that deprives the owner of all beneficial economic use of the property. But the decision below would apply equally to the other type of per se regulatory taking, called a "physical taking" below, when the government takes steps physically to occupy the property, such as by taking a permanent easement. The Rhode Island Supreme Court made clear its view that the same rule should apply to both types of takings. Indeed, in justifying its holding with respect to the former category of regulatory takings, the Rhode Island Supreme Court expressly and heavily relied on what it considered the settled ban on subsequent owner standing to challenge physical takings. See Pet. App. A-16.

The Rhode Island Supreme Court erred in its analysis of both types of regulatory takings claims. Although the lawwith respect to subsequent purchasers is settled with respect to physical takings, the rule in fact is precisely the opposite of the rule stated below. In Nollan v. California Coastal Commission this Court squarely held that a subsequent purchaser has standing to challenge a physical taking. 483 U.S. 825, 834 n.2 (1987). Although the Court's discussion of this point appeared in a footnote, the issue itself was heavily briefed, its resolution was unambiguous, and it was necessary to the result. The holding in Nollan therefore cannot be dismissed as mere dictum.

Given this clear holding, it would have been shocking if the Court's decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), on which the court below also relied heavily, had altered the law. It did not. Contrary to the Rhode Island Supreme Court's misreading, Lucas did not establish a new rule that all state laws or policies that are in effect as of the time property is acquired automatically become part of the limited set of "background principles" of state law that are immune from challenge under the Takings Clause. The Court instead took pains in Lucas to make clear that only those state laws that "do no more than duplicate the result that could have been achieved in the courts" were they to have applied longstanding state law with respect to "public nuisance, private nuisance," and the "forestalling of grave threats to the lives and property of others" (id. at 1029 & n. 16), are not subject to a takings claim. And the Court further made clear its intent -- in clarifying the law with respect to regulatory takings that deny all beneficial economic use .-- to adopt a rule that provides such claims "similar treatment" to that provided to physical takings. Id. There is thus no basis for the rule against standing for subsequent owners that Rhode Island enforced here.

The Court's decision on the significance of the timing of ownership will have an enormous impact not simply upon the loss-of-all-economic use claim at issue here, but upon all per se regulatory takings claims, including those involving thephysical invasion of private property. As the Court observed in Lucas, it is appropriate to afford "similar treatment" to both types of claims. Id at 1029. This Court's decision therefore can, and should, clarify that its holding is applicable to both types of per se regulatory takings claims.

Such clarity is particularly important because the Court's mandate in NolIan and other physical takings cases is being denied by lower courts and by state and local government agencies on the same theory adopted by the Rhode Island Supreme Court. Most notably, the California Coastal Commission itself is now using Lucas as an excuse to revive arguments that it advanced -- and that this Court rejected -- in the Nollan case. As a result, state and federal courts have barred property owners from challenging the very same types of takings of beachfront easements that this Court condemned as" 'out and out extortion"' over 13 years ago. It is inconceivable that such blatant misappropriations of private property could ever be reconciled with the "background principles" of state common law that the Court identified in Lucas as limiting the government's ability to take property without compensation. The Commission's actions thus confirm what several members of this Court have acknowledged, which is that such a misreading of Lucas would render this Court's takings jurisprudence a nullity.

Given this alarming pattern of lower court misapprehension and state agency defiance of Nollan and Lucas, it is vitally important for this Court to address the standing of subsequent owners in both the physical and regulatory takings contexts. The Court should make clear, as a general rule, that subsequent owners have the same rights as prior owners to challenge unlawful government takings of private property.

ARGUMENT

I. A PROPERTY OWNER MAY BRING A TAKINGS CHALLENGE TO GOVERNMENTAL ACTION THAT PREDATES THE OWNER'S ACQUISITION OF THE PROPERTY.

This Court has identified "at least two discrete categories of regulatory action" that effect a per se taking of private property. Lucas, 505 U.S. at 1015. One category, alleged by petitioner in this case, is "where regulation denies all economically beneficial or productive use of [the] land." Id. The other, (alleged, for example in Nollan), "encompasses regulations that compel the property owner to suffer a physical 'invasion' of his property." Id. As "per se" takings, each of these types of actions requires the payment of compensation "without case-specific inquiry into the public interest advanced in support of the restraint." Id.

The Rhode Island Supreme Court correctly recited this Court's typology of takings claims, though it chose to call the former type a "regulatory taking" and the latter a "physical taking." Pet. App. A-8 to A-9. And it accurately observed that it would be inconsistent with Lucas if "regulatory takings would be treated differently from physical takings," because in Lucas the Court stated that "the two types of takings should be accorded similar treatment," Id. at A-16. But the Rhode Island Supreme Court gravely erred when it concluded, based on Lucas, that "[aill subsequent owners take the land subject to the pre-existing limitations and without the compensation owed to the original affected owner." Id.

The Rhode Island Supreme Court began by deriving from Lucas the proposition that any state law or regulation that predates the claimant's ownership of the land" limits his title and therefore forecloses his standing to assert a takings challenge. Pet. App. A-IS. This was error, for the court below examined none of the limiting factors that this Court set forth for determining whether a given law could properlybe found to be part of the "background principles of the State's law of property and nuisance," which in turn determines whether what was taken by that law was part of the owner's title to begin with. Lucas, 505 U.S. at 1029-31.

The court then compounded the error by asserting that when a "physical taking" is at issue, "only the owner at the time of the taking is owed compensation." Pet. App. A-16. This Court's decision in Nollan establishes that subsequent owners may challenge per se takings which "predate" their acquisition of their property and of which they had full notice at the time of the acquisition. Nothing in Lucas disturbed this holding, either for physical takings cases, or for cases where the government action deprived the owner of all economically beneficial or productive use of the property.

A. Nollan Held That Owners May Challenge Physical Takings That Predate Their Purchase.

This Court addressed, and rejected, the argument that property owners are barrred from challenging physical takings that predate their acquisition of the property in Nollan v. Ca4fornia Coastal Commission. As the Court acknowl- edged, the Nollans did not actually purchase their property until after the Coastal Commission had imposed the permit condition at issue, and thus they had knowledge of both the specific permit condition and the Commission's longstanding policy of imposing such conditions at the time they purchased their property. Nollan, 483 U.S. at 828-30.[2] The California Coastal Commission and numerous amici urged the Court to

2 See also Nollan, 483 U.S. at 860 (Brennan, I., dissenting); Brief of Appellee California Coastal Commission at 30, 34, NolIan, supra, (No. 86-133) ("Commission Br."); Brief of Amicus Curiae Natural Resources Defense Council at 27 n.2t, Nollan, supra. (No. 86-133) ("NRDC Br."); Brief of Amicus Curiae Designated California Cities and Counties at 8, Nollan, supra, (No. 86-133) ("Cities and Counties Br."); Brief of Amicus Curiae the Commonwealth of Massachusetts at 14, Nollan, supra, (No. 86-1 33) ("State AGs Br.").

reject the Nollans' challenge on this basis alone. See pages 9-10, infra.

The Court flatly rejected that argument:

Nor are the Nollans' rights altered because they acquired the land well after the Commission had begun to implement its policy. So long as the Commission could not have deprived the prior owners of the easement without compensating them, the prior owners must be understood to have transferred their full property rights in conveying the lot.
Nollan, 483 U.S. at 834 n.2.

This aspect of the Nollan decision was not dicta, but was necessary to the Court's holding. At issue in Nollan was a longstanding "comprehensive program" of the California Coastal Commission to require all coastal property owners to record an offer to dedicate a public easement across their property in return for approval of any development permit they might submit. See NolIan, 483 U.S. at 827-29, 831, 841. The condition demanded of the Nollans was to offer to dedicate a lateral public easement across their beachfront in exchange for permission to replace a small, dilapidated summer rental cottage with a larger, three-bedroom, permanent residence. Id. at 828. The easement, which would have allowed the public to pass and repass between two public beaches along the coast above and below the tract, was defended by the Commission as necessary to offset the impact on public beach access from the "blockage of the view of the ocean" caused by the new, larger structure. Id.

The Court acknowledged that the Commission has a legitimate public interest in ensuring visual access to the ocean, and observed that the Commission could have sought to protect that interest by requiring the property owners to offer to dedicate "a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere." ld. at 836. But the Court rejected thisjustification with respect to the condition imposed on the Nollans, because there was no "nexus" between "visual access to the ocean and a permit condition requiring lateral public access along the Nollans' beachfront lot." Dolan v. City of Tigard, 512 U.S. 374, 387 (1994). "The absence of a nexus left the Commission in the position of simply trying to obtain an easement through gimmickry," Id. at 387, converting the policy of imposing such permit conditions without proof of a valid nexus into "an out-and-out plan of extortion." Nollan, 483 U.S. at 837 (citation omitted). Thus, the central holding of Nollan is that, to avoid paying compensation for the taking of an easement, the government must prove a nexus between the impact of the permit condition and the purpose "advanced as the justification" for it. Id.[3]

The Court could not have reached this holding, however, if the Nollans had lacked standing to bring their takings challenge in the first place. And the argument that the Nollans lacked standing because they had notice of the Commission's comprehensive program of exacting public easements, and bought their property subject to that restriction, was raised both by the Coastal Commission itself and by numerous amici curiae.

The Commission, for example, pointed out that the Nollans "did not exercise their option to purchase the lot until after the Commission's decision" to impose the challenged condition on their development permit. Commission Br., at 34 (emphasis supplied). The Commission claimed that this fact alone was dispositive: "[t]he timing of the Nollans' purchase

3The Court in No/lan held that the burden of proof rested with the Government, No//an, 483 U.S. at 836, and subsequently held in Do/an v. City of Tigord that the government also bears the burden of showing that the impact of the condition on the property owner is roughly proportional to the degree to which the condition advances the governmental objective. 512 U.S. at 391 n.8, 395.

alone is sufficient to defeat a taking." Id. The Commission further buttressed the point by arguing that the Nollans had no expectation of continued private use" that was frustrated by the government. Id. at 30. "Quite the contrary," the Commission asserted:

[T]he Nollans were fully informed of the Commission s obligation to require them to permit public use of their beachfront as a condition of development approval long before they purchased their lot and built their new house. Striking the access condition now would result in an absolute windfall to the Nollans and a detriment to the public.[4]
Id. (emphasis supplied).

Several amici curiae made this same point to the Court. See, e.g., NRDC Br., at 22-23 n.16 (Nollans knew of condition of public access over their beach "through [the Commission's] imposition of conditions on their development permit before they ever exercised their option to purchase the property") (emphasis in original).5 And several dissenting Justices maintained that the notice that the Nollans had of the state's intent to demand an easement in return for any coastal development should have defeated their takings claim. Nollan, 483 U.S. at 860 (Brennan, J., joined by Marshall, J., dissenting) (appellants were "on notice that new developments would be approved only if provisions were made for lateral beach access"); id. at 866 (Blackmun, I., dissenting)

4The Court's decision to allow the Nollans to obtain the "windfall" of building their house without having to relinquish an easement echoes the Court's decision to let those homeowners who first sold to non-white purchasers in violation of racial covenants keep the financial "windfall" they allegedly received. See Barrows v. Jackson, 346 U.S. 249 (1953); see also id at 268 (Vinson, CI. dissenting) (Court should have allowed state to compel homeowners to "disgorge that which was gained at the expense of depreciation in her neighbors' property").

5See a/so State AGs Br., at 14; Cities and Counties Br., at 8 n.3.

("Nollans had notice of the easement before they purchased the property and that public use of the beach had been permitted for decades.").

Thus, in Nollan, the Court was presented, in the context of a physical taking, with the same arguments for denying standing to a subsequent owner that the Rhode Island Supreme Court found convincing in Palazzolo. The Court squarely rejected these arguments in Nollan. The only remaining question, therefore, is whether Lucas changed this law.

B. Lucas Did Not Change The Standing Of Subsequent Owners.

In Lucas v. South Carolina Coastal Council, this Court reversed the state court's judgment that a statute banning all residential construction on petitioner's beachfront property had not caused a taking, and remanded for an evaluation whether that statute merely implemented a result that could otherwise have been obtained through application of the state's existing background law of nuisance and property. 505 U.S. at 103 1- 32. Because the statute at issue was passed after Lucas acquired his property, the question presented here in Palazzolo was plainly not presented in Lucas. And nowhere did the Court suggest in Lucas that it was intending to reverse or even to narrow its prior holding in Nollan. Under traditional principles of jurisprudence, then, Lucas did not cut back on Nollan. Nevertheless, the Rhode Island Supreme Court relied on certain statements in Lucas to justify its holding that property owners are categorically barred from bringing takings challenges to governmental action that predates their ownership of the property.

The Rhode Island Supreme Court referred first to what it called "the Supreme Court's dictate in Lucas instructing reviewing courts to determine whether a landowner originally possessed the right to engage in a particular use." Pet. App. A-iS. It then cited to the "similar treatment" that the Court said in Lucas should be afforded to regulatory and physicaltakings, and quoted an example from Lucas that "'a permanent easement that was a pre-existing limitation upon the landowner's title' would not amount to a compensable taking." Id. at A-16 (quoting Lucas, 505 U.S. at 1028-29). The lower court then assumed, without further reference to Lucas, that any pre-existing statutory or regulatory limitation on the owner's title was sufficient to bar a challenge to that limitation. Id.

But that is clearly not what Lucas held. In the passage immediately following the example relied on below of the permanent easement that was a pre-existing limitation upon the landowner's title," the Court went on to explain the point, first, by contrasting two cases. In one case, Scranton v. Wheeler, 179 U.S. 141 (1900), the Court found that no taking had occurred, because the interests of a "riparian owner in the submerged lands . . . bordering on a public navigable water" were held subject to the government's navigational servitude. Id. at 163. The government's navigational servitude is an inherent limitation on submerged land that borders a public navigable water, and so any purchaser of such land takes title subject to it, and cannot claim a taking when the government exercises its rights. Id. at 162. By contrast, in Kaiser Aetna v. United States, 444 U.S. 161, 178-80 (1979), the naviga- tional servitude was held not to be part of the background law that limited the owner's title to the property in question. That property was originally "separated from the adjacent bay and ocean by a natural barrier beach, [and it] has always been considered to be private property under Hawaiian law." Id. at 178-79. These cases thus illustrate the narrow scope this Court has given to government assertions of a "permanent easement that was a pre-existing limitation upon the landowner's title."

After contrasting these two physical takings cases, the Court stated that "similar treatment" was appropriate for regulatory takings, and further explained that only a very limited range of statutes would not be subject to per se condemnation were they to prohibit all beneficial use of land. The range was limited to those laws that "do no more than duplicate the result that could have been achieved in the courts--by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise," such as "forestalling 'grave threats to the lives and property of others.' Lucas, 505 U.S. at 1029 & n.16. Like the navigational servitude, these sorts of limitations on private property, the Court explained, "inhere in the title itself in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." Id. at 1029 (emphasis supplied). Thus, a per se takings claim could not succeed against a statute that did nothing more than codify these principles, for in so doing the state would simply "make the implication of those background principles of nuisance and property law explicit." Id. at 1030. Conversely, the Court made clear, statutes that went beyond these principles would work a taking. Id at 1031-32.

By relying selectively on only snippets of language from Lucas, then, the lower court missed its central point. Only a very narrow class of statutes is immune from challenge under the Takings Clause -- those that "duplicate" what the courts could achieve under background principles of nuisance and property law. Nothing in Lucas cuts back on the standing, expressly vindicated in NoIlan, of owners to challenge "extortionate" permit conditions imposed before they acquired title, or to challenge pre-existing laws that deprive new owners of all beneficial use of their property, simply because a prior owner failed to challenge those unconstitutional actions. Rather, as in Nollan, those "prior owners must be understood to have transferred their full property rights in conveying the lot" -- including the right to challenge any prior government action amounting to a taking. Nollan, 483 U.S. at 834 n.2.

Since Lucas was decided, two justices have observed that its meaning would be rendered a "nullity" if property rights could be eliminated by "pretextual procedural rulings" or any other law that a state simply chose, without foundation, to denominate as "background law." Thus, Justice Scalia, joined by Justice O'Connor, stated:

[a]s a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, neither may it do so by invoking nonexistent rules of stale substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a state court chooses to denominate "background law" -- regardless of whether it is really such -- could eliminate property rights.... No more by judicial decree than by legislative fiat may a State transform private property into public property without compensation.
Stevens v. City of Cannon Beach, 510 U.S. 1207, 1211- 12 (1994) (Scalia, J., joined by O'Connor, J., dissenting from denial of petition for writ of certiorari) (emphasis supplied) (citations omitted).

Justice Kennedy made a similar point when he observed, in separate writing in Lucas, that the Constitution protects those investment-backed expectations that "are based on objective rules and customs that can be understood as reasonable by all parties involved," and are not automatically limited by anything the "courts allow as a proper exercise of govern- mental authority," for in that event property would merely "become what courts say it is." Lucas, 505 U.S. at 1034-35 (Kennedy, J., concurring in the judgment). Indeed, it is fundamental to takings law that "a State, by ipse dixit, may not transform private property into public property without compensation . . . ." Webbs' Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980). Thus, to interpret Lucas to permit states to enforce procedural bars to challenges togovernment action that plainly worked a taking at the time it occurred, and that continues to cloud the current owner's title, is improper, for it would render the constitutional protection that Lucas sought to extend a "nullity." Whatever laws might be invoked to justify such a procedural bar, they are not a part of the limited range of "background principles of nuisance and property law" that the Court described in Lucas. They would also conflict directly with applicable law in the context of physical takings, which -- per Nollan -- allows such challenges to be brought.

II. THE CALIFORNIA COASTAL COMMISSION'S CONTINUING EFFORTS TO DENY STANDING TO SUBSEQUENT OWNERS ILLUSTRATES THE BROAD IMPORTANCE OF THE FIRST QUESTION PRESENTED.

Whether subsequent purchasers should be categorically barred from challenging an unconstitutional taking of property is a critical issue in several pending proceedings in California. The California Coastal Commission, the state Attorney General, and one local government have each taken the position that subsequent owners do not have standing to challenge the taking of easements if the permit condition was imposed prior to their acquisition of the property. Astonishingly, they take that position despite the fact that this Court rejected this argument in the Nollan litigation to which the California Coastal Commission was itself a party. And to date, the argument has been accepted by one federal district court and two state superior courts. Because the Commission's position effectively renders Nollan and Lucas a nullity in California, we urge the Court to clarify that subsequent owners may challenge prior governmental action that amounts to either a regulatory or a physical taking.

A. Pending California Litigation.

To date, the case furthest along procedurally is Daniel v. County of Santa Barbara, No. 99-56887 (9th Cir., filedDecember 16, 1999), which is pending (not yet argued) in the Ninth Circuit court of appeals. Ann Daniel and Leonard Hill bought their coastal property in 1997. At the time of their purchase, the California Coastal Commission had already extracted from a prior owner an offer to dedicate an easement. The offer was recorded long before this Court's decision in Nollan, and it is undisputed that no individualized determi- nation of nexus or proportionality in accordance with NoIlan or Dolan was ever made by any government agency. See App. at 6a, 9a, IQa, 21a n.39.[6]

In 1998, the County of Santa Barbara took action to accept the offer, and did so over the vigorous objections of Daniel and Hill. They first attempted to rescind their offer, then claimed both that the original offer to dedicate was null and void for failure to comply with NolIan, and that in any event the County's acceptance of the offer in the absence of the showing required by Nollan and Dolan was itself unconstitu- tional. Id. at 9a-lOa. The County was unmoved, and Daniel and Hill were forced to sue.

The district court dismissed the complaint, stating that "[b]ecause the irrevocable offer was made prior to the time the Property was conveyed to plaintiffs, the taking had already occurred, and they have no standing to challenge it at this point." See App. at 26a; see also id. at 20a-26a. Misreading Lucas just as the Rhode Island Supreme Court did (see id. at 24a-26a), the district court treated the permit condition as a "'pre-exi sting limitation upon the landowner's title"' that was enforceable without regard to whether that limitation had been lawfully imposed as an original matter. Id. (quoting Lucas, 505 U.S. at 1028-29). The district court then held that the failure of the original owners to challenge the offer to dedicate relieved the County of any liability for an

6The district court's unpublished opinion in Daniel is reproduced in an appendix to this brief.

unconstitutional taking because all subsequent owners took title subject to that restriction. Id. at 21a n.39.

In reaching this holding, the district court attempted to distinguish NolIan as involving a party with "a leasehold interest with an option to buy" rather than a subsequent owner, (App. at 25a), but it overlooked the critical point that the Nollans, just like Daniel and Hill, "acquired the land well after the Commission had begun to implement its policy" (Nollan, 483 U.S. at 833 n.2), and were fully on notice that the Commission had required an easement in return for permission to build. The district court also accepted the same policy argument about the financial impact of receiving notice that was advanced and rejected in Nollan. The district court assumed that the price Daniel and Hill paid for the property ''was presumably reduced to reflect the exaction of the irrevocable offer to dedicate and the risk that the County would accept it." App. at 25a & n.40 ("the market price would account for the risk that the County would accept the outstanding offer"). That argument also was advanced, to no avail, in Nollan. See Brief of Amicus Curiae the Solicitor General of the United States at 17 n. 12, Nollan, supra, (No. 86-133) ("[Alppellants did not own the property when they applied for the development permit and/or when they received the Commission's decision. Presumably, therefore, the price paid by appellants for the property may have reflected any losses caused by the Commission~ s effort to impose a lateral access requirement on development.").[7]

7See also State AGs Br., at 16 (limitation "would have lowered the price the Nollans paid or should have paid for the property"); NRDC Br., at 22-23 n. 16 ("the price the Nollans paid for their property should have-- or at least could have--taken into account any impact of the public access condition imposed by the Coastal Commission"); Cities and Counties Br., at 8, (public access condition "was known and presumably taken into account by both the buyer (Nollans) and the seller and thus was reflected in the purchase price paid by the Nollans"; imposition of the condition "could not, therefore, have had an economic impact on the Nottans").

On appeal, the California Coastal Commission has submitted an amicus brief in support of the County, in which it claims that its permit conditions "are immune from attack." Brief of Amicus Curiae California Coastal Commission at 6-7, Daniel, supra. ("Commission's Amicus Br.") The Com- mission's position is that the owner's "predecessor-ininterest" failed to attack the original permit condition and hence the right to the "property covered by the easement was not part of the bundle of rights they purchased when they acquired this property:"

Under California law, the conditions imposed by the Commission are immune from attack. Appellants' predecessors in interest not only failed to timely bring a judicial challenge to the validity of these conditions but accepted the benefit of the permits to which they were attached. As a result, res judicata and principles of estoppel apply and bar appellants' assault on the Commission's conditions. In turn, because these conditions are immune from attack and because the required offer was a recorded interest at the time appellants acquired the property at issue, appellants lack standing to assert that the County's action constituted a taking of a property interest which they possess. Simply put, appellants lack standing to assert that the County's action deprived them of the right to exclude the public from that portion of their property covered by the easement because that right was not part of the bundle of rights they purchased when they acquired this property
Commission's Amicus Br., at 6-7 (emphasis supplied).

The Commission and the County have successfully advanced the same argument in similar litigation involving a different property pending in state court.[8] These cases chal-

8See Parker v. California Coastal Comm'n., No. 305674 (San Francisco Cal. Super. Ct. Dec. 21, 1999) (demurrer granted) and Cole v. Board of Supervisors, No. 01003407 (Santa Barbara Cal. Super. Ct. Nov.

lenge both the imposition of the condition by the Commission, and separately the County's later acceptance, of a permit condition that could not possibly survive review under the nexus and proportionality standards required by Nollan and Dolan.[9] Moreover, in the former case, the Commission has actually filed a countersuit seeking civil penalties of up to $15,000 per day against the property owner for having the temerity to record a notice of rescission of the blatantly extortionate offer to dedicate that had been extracted from the previous owner.[10] The Commission's theory is not that the offer to dedicate could satisfy Nollan -- for it plainly could not -- but that the property owner is barred by state law from even recording notice of the owner's intent to challenge any agency's acceptance of that offer.[11] This physical takings issue thus bears not merely the "sound of 'old, unhappy, far-

21, 2000) (demurrer granted) (collectively, the "Stanford Farms Trust" cases).

9In the Stanford Farms Trust cases, the Commission exacted, and the County recently accepted, an offer to dedicate an owner's entire beachfront -- some 77,000 square feet -- in return for a permit to build a sunroom and deck totaling no more than 600 square feet. Not only did the development amount to a tiny fraction -- 1/135 --of the area demanded, but the location of the development -- nearly 1000 feet inland from a 60-foot high coastal bluff -- means that the construction could have had no conceivable impact of any kind on public access to the beach.

10See Second Amended Cross-Complaint of California Coastal Commission at n.8 , Parker v. California Coastal Comm 'n, supra, (filed March 3, 2000).

11See California Coastal Comm'n, Public Access Action Plan at 17, (June 1999) ("Public Access Plan"), available at http://www.coastal.ca.gov/access/accesspl.pdf. Because the California Coastal Commission may not, by law, hold title to coastal property, Cal. Pub. Res. Code 30212; see also Public Access Plan, at 29, the offers to dedicate may be accepted only by other public agencies approved by the Commission; in advance of the acceptance, however, an owner has no way of knowing which entity will accept the offer, and the owner in this case thus recorded a rescission in order to give notice to any potential accepting agency and thereby to preserve his claim.

off things, and battles long ago,"' but of "sorrow, loss, or pain, that has been, and may be again." Cf Kaiser Aetna, 444 U.S. at 177.

B. The California Coastal Commission's Policies Are Rendering Nollan A Nullity.

The impact of the pending California litigation extends far beyond the specific properties in question. At issue is whether the Nollan decision will be reduced in impact to a single property owner, or whether it will serve to restrain state and local governments from exacting, taking, and keeping easements in circumstances this Court previously branded extortionate.

The issue has become timely now, because until recently, the hundreds of offers to dedicate beachfront easements that the Commission automatically exacted over the last 25 years sat unaccepted by any local agency. As of June 1999, the Commission had extracted 1288 offers to dedicate public access easements across private coastal property, of which only 464 had been accepted. Because these offers to dedicate typically expire after 21 years, the Commission realized that if it did not push local governments to accept the outstanding offers, many would soon expire.

It is likely that many, if not all, of the affected properties are now in the hands of new owners.[12] Under the Commission's reasoning, and that of the district court in Daniel, all of these unlawful, extortionate takings are "immune from attack." This allows the State to acquire, for free, millions of dollars' worth of beachfront property that this Court made

12The average length of home ownership in California is 5- 10 years. California Ass'n of Realtors, House Finance Survey (1999) (stating that the number of years repeat buyers stayed in their previous residence has remained at 5 years since 1992); Innian News Features, Home Switchers Accelerate (Nov. 19, 1998) availabte at http://news.inman.com/inmanstories.asp?ID=11469 (average length of home ownership in California is 10.5 years).

clear, in Nollan, could be seized by the state only if it were willing to "pay for it." 483 U.S. at 842.

This Court has long recognized that if the "objective of a state practice is to discourage the assertion of constitutional rights it is 'patently unconstitutional."' Corpus v. Estelle, 414 U.S. 932, 933 (1973) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32 n.20 (1973)). Amicus therefore urges the Court, in addressing the Rhode Island Supreme Court's mistaken analysis of regulatory takings in the Palazzolo case, to clarify not only that the result below was wrong, but that the Rhode Island Supreme Court's reliance on the supposedly settled rule in physical takings eases is wrong as well. Subsequent owners receive the "full property rights" of the prior owner, Nollan, 483 U.S. at 834 n.2. They are therefore entitled to challenge unconstitutional takings that predate their ownership, whether that taking was in the form of an unlawful permit condition, an unlawful easement or other physical occupation, or the denial of beneficial economic uses of the property. In each case, the state must be held accountable when it 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).

CONCLUSION

For the foregoing reasons, the Court should reverse the holding of the Rhode Island Supreme Court that "a regulatory takings claim may not be maintained where the regulation predates the acquisition of the property."

Respectfully submitted,

MARK E. HADDAD
CATHERINE VALERIO BARRAD
RONALD L. STEINER
SIDLEY & AUSTIN
555 West Fifth Street
Suite 4000
Los Angeles, CA 90013
(213) 896-6000
CARTER G. PHILLIPS*
SIDLEY & AUSTIN
1722 Eye Street, NW.
Washington, D.C. 20006
(202) 736-8000
Counsel for Amicus CuriaeNovember 22, 2000* Counsel of Record

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