|
September 28, 1999
BY OVERNIGHT COURIER
Honorable Chief Justice Ronald M. George
and Associate Justices
California Supreme Court
350 McAllister Street
San Francisco, California 94102
Re:
County of Riverside v. Superior Court for the County
of Riverside
(Lion's Lair Enterprises, Inc., Real Party in Interest)
Supreme Court No. S081398
Riverside County Superior Court Case No. 270-191
Dear Honorable Chief Justice and Associate
Justices:
Community Rights Counsel (CRC), as a friend of the
Court, writes to support the petition for review filed in
this case by the County of Riverside.
CRC is a non-profit, public interest law firm established
in 1997 to assist municipalities in defending against challenges
to local land-use controls and other community protections,
particularly challenges brought under the Just Compensation
Clause of the Fifth Amendment.
CRC began as a project of the International City/County
Management Association, a national association representing
more than 8,000 city and county managers.
We have represented municipalities across the country
in takings challenges to local laws.
The lower courts ruled that under Dolan
v. City of Tigard, 512 U.S. 374 (1994), the Just Compensation
Clause prohibits the County of Riverside from imposing a secondary
access requirement designed to provide safe access to and
from a residential subdivision in the event of a fire or similar
emergency. For
the reasons set forth below, we urge this Court to grant the
County's petition and reverse the rulings below.
I.
THE LOWER COURT RULINGS VIOLATE FUNDAMENTAL TENETS
OF TAKINGS JURISPRUDENCE AND IMPROPERLY USURP MUNICIPAL LAND-USE
PLANNING AUTHORITY.
This case involves one of the most compelling government
interests imaginable: protection against death or injury from
raging fires and other natural disasters.
The lower courts applied Dolan
to invalidate a permit condition requiring Lion's Lair Enterprises,
Inc., to provide safe, secondary access for residents of a
proposed subdivision in a remote location designated by state
and local authorities as a high-risk fire area. The lower courts not only invalidated
the access requirement, but ordered the County to delete the
condition from the Tentative Map, which effectively allows
the project to proceed without the requirement.
Unless reversed by this Court, the rulings below will
permit Lion's Lair to build homes in harm's way, and prevent
the County from considering whether the subdivision should
be built at all, or whether to continue to impose the access
condition and pay compensation for any taking.
The result is startling, and to our knowledge unprecedented
in the annals of takings jurisprudence.
We are aware of no other case in which a court has
used the Just Compensation Clause to compel a municipality
to allow residential development to proceed notwithstanding
compelling public safety concerns.
As the U.S. Supreme Court repeatedly has made clear,
the Just Compensation Clause does not authorize courts to
usurp municipal land-use planning authority, but simply requires
compensation for otherwise valid government action that rises
to the level of a taking:
As its
language indicates, and as the Court has frequently noted,
[the Just Compensation Clause] does not prohibit the taking
of private property, but instead places a condition on the
exercise of that power.
This basic understanding of the Amendment makes clear
that it is designed not to limit the government interference
with property rights per se, but rather to secure compensation
in the event of otherwise proper interference amounting to
a taking.
First
English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 314-15 (1987) (emphasis
and citations omitted); accord,
Preseault v. ICC, 494 U.S. 1, 11 (1990); Williamson
County Regional Planning Comm'n v. Hamilton Bank, 473
U.S. 172, 194-95 (1985).
In
Dolan, and in the
closely related case of Nollan
v. California Coastal Comm'n, 483 U.S. 825 (1987), the
U.S. Supreme Court found that the challenged permit conditions
lacked the requisite nexus to the risks posed by the proposed
development, but in neither case did the Court order the government
to issue the permit without the offending condition.
Indeed, in both cases, it was either assumed or undisputed
that the government could have denied the permit outright
without effecting a taking.
See Dolan, 512 U.S. at 396 (Stevens,
J., dissenting) (it was undisputed that the permit could have
been denied); Nollan, 483 U.S. at 835-36 (assuming
that the permit could have denied).
And in both cases, the Court expressly reaffirmed the
government's authority to impose the challenged condition
if it paid compensation for any taking. Dolan,
512 U.S. at 396; Nollan,
483 U.S. at 842.
The
lower court rulings in the case at hand contravene not only
fundamental principles of federal takings jurisprudence, but
also California restrictions on the use of a writ of mandate.
As discussed in the Petition for Review (pp. 28-30),
Section 1094.5(f) of the Code of Civil Procedure provides
that a writ of mandate "shall not limit or control in
any way the discretion legally vested in the respondent."
By ordering the County to delete the access condition,
the lower courts improperly deprived the County of its discretion
to deny the permit altogether, or to retain the condition
upon payment of compensation for any taking, thereby violating
Section 1094.5(f).
II.
THE COURTS BELOW MISAPPLIED DOLAN.
Dolan
is a narrow, limited decision designed to serve only as
an "outer limit[]" on municipal land-use planning.
Dolan, 512 U.S. at 396.
The lower courts' application of Dolan
to this case conflicts with U.S. Supreme Court pronouncements
regarding Dolan's
limited scope in three ways.
First, just last Term, the Court emphatically reaffirmed
that Dolan applies only to "land-use
decisions conditioning approval of development on the dedication
of property to public use."
City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 1635 (1999). Unlike other land-use controls,
a compelled dedication requires special scrutiny.
Absent an adequate nexus to the proposed development,
a compelled dedication constitutes an "unconstitutional
condition" because it requires the landowner to convey
land to the public without just compensation. Dolan,
512 U.S. at 385. Here,
the County has not compelled Lion's Lair to dedicate its own
property, but rather to ensure that the County is able to
acquire property from others to be used for secondary access.
Because no dedication is required from Lion's Lair,
Dolan's rough proportionality
test is inapplicable.
Second, the County imposed the safety access requirement
because the legislature has classified the location
of the proposed subdivision as a hazardous fire area.
See Petition at 6, 10.
Dolan, makes
clear, however, that the rough proportionality test applies
only to an adjudicative decision.
Dolan, 512 U.S. at 385 (distinguishing
legislatively determined land-use controls from the individualized
adjudicative decision in Dolan);
id. at 391 n.8 (rough proportionality
test applies to adjudicative dedications, not legislatively
imposed land-use controls).
This Court, too, recognizes that legislatively imposed
requirements are subject to less exacting scrutiny under the
Just Compensation Clause than adjudicative requirements.
See Ehrlich v.
City of Culver City, 12 Cal. 4th 854, 911 P.2d 429, 443-44,
50 Cal. Rptr. 2d 242 (1996) (legislatively imposed fees are
subject to less demanding scrutiny than fees imposed on an
individual and discretionary basis).
The reason is clear: an adjudicated dedication requirement
raises the special concern that the stated justification is
a ruse and the landowner is being unfairly singled out to
bear a burden disproportionate to the harms associated with
the proposed development.
No such "singling out" risk arises, however,
where a requirement is imposed legislatively upon many landowners
across a broad area.
Here, the safety access requirement applies to every
County property owner in a hazardous fire area, and comparable
requirements apply to similarly situated landowners throughout
the State. Petition
at 10, 15-16. Thus,
the County cannot be said to have singled out Lion's Lair
for unfair or disproportionate treatment, and Dolan
is inapplicable.
Third, in Dolan
the city required the landowner to dedicate a strip of
land for public use to reduce flood risks and traffic congestion
expected from the landowner's proposed expansion of a store.
The required dedication was plainly designed to benefit
the entire community. In such cases, it makes sense
to ask whether the harm to the community attributable to the
new development is roughly proportional to the required dedication.
Here, secondary access is not being required for the
safety of the community at large, but the safety of the subdivision
residents themselves.
The lower courts' reading of Dolan
would require courts to perform a cost-benefit analysis of
myriad requirements imposed on subdivision developers primarily
for the benefit of the subdivision residents.
Even ordinary street and sidewalk dedication requirements
would become subject to judicial second-guessing as to whether
they are somehow "proportional" to the proposed
development. Dolan's
rough proportionality test is ill suited to evaluate such
requirements.
Consider
the application of the test here.
The lower courts evidently would have the County quantify
the value of human life, evaluate the risk of death in the
event secondary access is not required, and weigh those risks
against the cost of providing secondary access.
Nothing in the Just Compensation Clause requires such
an unworkable (and macabre) analysis.
Finally,
even if Dolan applied
to these facts, the County clearly has satisfied its requirements
on the present record.
In Dolan,
the compelled dedication failed to pass constitutional muster
in part because the record failed to reveal the extent to
which the bikepath would actually reduce traffic congestion.
512 U.S. at 395.
It was in this context that the Court required the
city to "quantify" its findings to show that at
least some people would use the bikepath instead of the streets,
thereby reducing traffic congestion.
Without this connection, the bikepath would be little
more than a recreational amenity, rather than an alternate
commuter route. In
the case at hand, there is no question that the subdivision
residents would use the access road to escape a raging fire
that has cut off their only other escape route.
The critical deficiency in Dolan
simply does not exist on these facts.
Had the County required Lion's Lair to build a six-lane
highway on the pretext of fire safety enhancement, one might
legitimately question whether the condition would be justified.
The condition at issue, however, represents the bare
minimum that has been legislatively determined to provide
safe access in a hazardous area.
That is all that Dolan and the Just Compensation Clause
require. By imposing
unworkable demands on the County, the lower courts have transformed
Dolan's "outer
limit" on land-use planning into a straightjacket at
the expense of public safety.
In the wake of Del
Monte Dunes, other state Supreme Courts are carefully
inspecting the use of Dolan's rough proportionality test
by lower courts. For
example, in Benchmark Land Co. v. City of Battle Ground,
972 P.2d 944 (Wash. Ct. App. 1999), an intermediate appeals
court applied Dolan to strike down a permit condition
requiring the developer to make street improvements.
The city petitioned the Washington Supreme Court, and
it submitted Del Monte Dunes as supplemental authority
on the inapplicability of Dolan
to non-dedication requirements.
On August 31, 1999, the Washington Supreme Court unanimously
granted the petition and remanded the proceeding for further
consideration in light of Del Monte Dunes.
See Benchmark,
No. 67901-1, 1999 Wash. LEXIS 590 (Wash., Aug. 31, 1999).
This Court should do the same here, given the lower
courts' application of Dolan
notwithstanding the absence of any requirement that Lion's
Lair dedicate its property to the public.
III.
THE JUST COMPENSATION CLAUSE DOES NOT APPLY TO A GENERALIZED
MONETARY OBLIGATION
TO ASSIST THE COUNTY IN ACQUIRING LAND.
The
1998 ruling in Eastern
Enterprises v. Apfel, 118 S. Ct. 2131 (1998), also demonstrates
that the lower courts erred in applying the Just Compensation
Clause to this case.
There, five Justices concluded that a generalized monetary
obligation imposed by the government does not trigger the
Just Compensation Clause.
Id. at 2154-58
(Kennedy, J., concurring in part and dissenting) (generalized
monetary obligation imposed by federal coal miner health benefits
law does not implicate the Just Compensation Clause because
it does not operate on a specific property interest); id.
at 2161-64 (Breyer, Stevens, Souter, and Ginsburg, JJ., dissenting)
(same). This
five-Justice rejection of the takings claim in Eastern
Enterprises constitutes binding precedent on lower courts.
Unity Real Estate
Co. v. Hudson, 178 F.3d 649, 658-59 (3d Cir. 1999) ("we
are bound to follow the five-four vote against the takings
claim in Eastern").
As
noted above, the permit here does not require Lion's Lair
to dedicate its property to the public, but instead imposes
a generalized monetary obligation to assist the County in
buying property from others to provide safe, secondary access.
Petition at 13. Eastern
Enterprises makes clear that the Just Compensation Clause
does not apply to such a monetary requirement.
CONCLUSION
The lower court rulings have injected disturbing uncertainty
into land-use planning throughout the County with respect
to critical efforts to reduce the loss of human life from
devastating fires. This
Court should grant the County's petition for review and reverse
the rulings below.
Respectfully
submitted,
COMMUNITY
RIGHTS COUNSEL
By:__________________________
Timothy J. Dowling
Chief Counsel
|
