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CRC Comments
Comments of
Timothy J. Dowling, Chief Counsel
Community Rights Counsel
On the "Areas of
Consensus" Document from the
June 24-27, 1999 Special Takings Retreat
sponsored by the
ABA Section on State and Local Government Law and the
Rocky Mountain Land Use Institute
July 22, 1999
I welcome this opportunity to set forth my strong
objections to the propositions identified as the
"Areas of Consensus" arising out of the June
24-27, 1999, Special Takings Retreat sponsored by the
Rocky Mountain Land Use Institute and the ABA State and
Local Government Law Section.
For the reasons set forth below, I urge the full ABA
Section on State and Local Government Law to reject the
so-called "consensus" in its entirety.
EXECUTIVE SUMMARY
A disturbing lack of balance permeated the Special
Takings Retreat. As a result, the retreat has proposed
radical changes to takings jurisprudence that would make
it far easier for developers and others to bring takings
challenges to sprawl controls, environmental safeguards,
and other community protections. If local land use
procedures need to be improved in a particular community,
the appropriate response is to reform those procedures at
the state and local level, not to impose a
one-size-fits-all mandate through changes in takings
jurisprudence that would severely tilt the playing field
toward developers in every community in the country. Due
to the serious procedural and substantive flaws that
attend the retreat's "consensus," it should be
rejected in its entirety.
PROCESS OBJECTIONS:
To put the takings retreat into perspective, it is
necessary to provide some background.
The NAHB Takings Bill: Last year, despite an
extensive lobbying campaign by the National Association
of Home Builders (NAHB), state and local government
groups defeated NAHB legislation designed to make it
easier for developers to sue local governments in federal
court far earlier in the land use planning process. The
NAHB bill, known as the Private Property Rights
Implementation Act of 1998 (H.R. 1534), would have
dramatically altered longstanding ripeness requirements
and other rules that apply to takings claims under the
Fifth Amendment. (For a description of the NAHB's
lobbying efforts, see G. Sugameli, "Takings"
Bills Threaten People, Property, Zoning, and the
Environment, 31 Urban Lawyer 177 (1999)). At the
heart of the bill was a new definition of ripeness that
would allow developers to side-step local procedures in
the land use planning process. The bill also purported to
allow developers to eliminate the role of state courts in
takings litigation. As a result, the legislation would
have given developers a huge new club in their
negotiations with local governments: the early threat of
expensive, federal court litigation.
Virtually every national organization of state and
local governments strongly opposed the bill, including
the National Governors Association, the National League
of Cities, the U.S. Conference of Mayors, the National
Association of Counties, the National Association of
Towns and Townships, the National Conference of State
Legislatures, the International Municipal Lawyers
Association, and more than forty state Attorneys General.
The Conference of State Supreme Court Justices and the
federal Judicial Conference also opposed the bill because
it so clearly undermined the historic role of municipal
governments and state courts in land use planning.
National environmental organizations, religious groups,
labor unions, the American Planning Association, the
National Trust for Historic Preservation, the League of
Women Voters, and many others voiced strong opposition to
the bill because it threatened community protections.
Vice President Gore, Attorney General Reno, and other
Administration officials promised a veto. For a more
complete description of the opposition, see S. Rep. No.
242, 105th Cong., 2d Sess. 29-58 (1998) (Views of
Senators Leahy, Kennedy, Biden, Kohl, Feinstein,
Feingold, Durbin, and Torricelli) (available at http://thomas.loc.gov/).
Due to this widespread and bipartisan opposition, the
1998 bill failed in the Senate. The NAHB, however, has
vowed to continue to promote this legislation. Just two
days after the Special Takings Retreat, the bill was
reintroduced in the House of Representatives as H.R.
2372.
The Takings Retreat: With that background in
mind, consider the Special Takings Retreat. The
Organizing Committee included Professor Daniel Mandelker,
the principal academic proponent of the NAHB bill, as
well as two other prominent bill supporters (indeed, two
of the most pro-developer voices in the takings debate),
Gideon Kanner and Michael Berger. The retreat co-chairs,
Peter Buchsbaum and Ed Ziegler, also have represented or
provided legal advice to the NAHB. Not surprisingly, the
retreat's first agenda item was proposed
"reforms" to ripeness requirements that apply
in takings litigation.
To be sure, the Organizing Committee included more
moderate voices. But only six of the eleven members
attended the final ratification session (Messrs. Mandelker, Kanner, Berger,
Buchsbaum, Ziegler, and
Dwight Merriam), giving further weight to the already
over-represented developer perspective.
Not a single state or local government organization
that opposed the NAHB bill was invited to send a
representative. Nor was any national environmental group,
nor any of the dozens of other groups that opposed the
bill. The co-chairs explained their absence by saying
that persons who represent "institutional
interests" were not welcome. But if the goal were to
ensure a full airing of views, those are precisely the
people one would invite. Strangely enough, the Pacific
Legal Foundation, the most aggressively pro-developer
interest group in the country, managed to slip through
the "institutional interest" screen, though it
was never explained how its representative was able to
leave PLF's institutional interests at the door. (My
employer, Community Rights Counsel, was not on the
original invitation list and was invited to attend only
after a series of requests.)
Of the more than 1100 active and senior federal
judges, only two were on the invitation list: Judge Jay
Plager of the Federal Circuit and Chief Judge Loren Smith
of the Court of Federal Claims, two of the strongest
advocates of an aggressive application of the Takings
Clause on the federal bench. That is the equivalent of
holding a retreat on abortion case law and inviting only
Justices Scalia and Thomas. It does not pass the
straight-face test for balance.
Judges Plager and Smith did not attend, but the
"institutional interest" screen still resulted
in a severe lack of balance at the retreat. For example,
the attorney who served as the NAHB's chief outside
lobbyist for the legislation (and who takes credit for
drafting the bill) was in attendance. So too were
numerous other developer lawyers, along with the NAHB
bill supporters on the Organizing Committee. On the other
side, of the twenty-five or so participants at the State
and Local Government Law Section retreat, only one is
identified as an attorney actually employed by a state or
local government. When I inquired how the retreat would
effectively consider the views of state and local
governments, Professor Mandelker indicated that he often
provides legal advice to municipalities. Given his strong
public advocacy of the NAHB bill, however, his role at
the retreat can hardly be described as providing a
balanced perspective.
The materials distributed to the retreat participants
reflected the developers' agenda. Handout #1 was the NAHB
bill as set forth in the Senate Judiciary Committee
Report. Also included was an article singing the bill's
praises, written by attorneys hired by the NAHB to lead
the lobbying effort. Strangely enough, when this article
appeared in The Urban Lawyer, an ABA-affiliated
publication, it was accompanied by a companion piece by
Glenn Sugameli of the National Wildlife Federation that
strongly criticized the bill. See G. Sugameli, "Takings"
Bills Threaten People, Property, Zoning, and the
Environment, 31 Urban Lawyer 177 (1999). The editors
apparently believed that a balanced treatment required
both perspectives. Balance evidently did not constrain
the retreat organizers, however, and Mr. Sugameli's
article was nowhere to be found at the retreat. Nor, of
course, was Mr. Sugameli, another prominent attorney in
the takings debate excluded by the retreat's
"institutional interest" screen.
The retreat started with small group meetings during
which the participants were allowed to voice their views.
The small groups then proposed more than 30 propositions
of law and policy for consideration during a 90-minute
plenary session. Much of the 90 minutes was spent
discussing the most extreme proposals. For example, some
participants urged the retreat to recommend that the ABA
advocate jettisoning more than two decades of takings
jurisprudence by completely eliminating the role of the
claimant's expectations in takings analysis. This
proposal proved too controversial and was ultimately
tabled, but several other damaging proposals remained on
the agenda and received little attention. Suffice it to
say that most of the proposals, which address complex
legal and policy issues, did not receive sufficient
attention.
After having spent, on average, less than three
minutes per proposal at the afternoon plenary session,
the group then drafted the recommendations during a late
evening session. On the final day, the NAHB bill
supporters overwhelmed the limited opposition and adopted
proposed changes to ripeness doctrine that largely track
key portions of the NAHB legislation. The retreat
participants also adopted "clarifications" to
other areas of takings law, many of which, if accepted by
the courts, would make it far easier for developers and
others to challenge sprawl controls, environmental
safeguards, and other community protections.
The legislative backdrop and procedural flaws
described above give rise to at least two independent
reasons why the full Section should reject the retreat's
consensus
First, the ABA is perceived by many to be the voice of
the legal profession. But the retreat did not come close
to representing a cross section of the profession. State
and local government attorneys, attorneys for
environmental groups and other public interest
organizations, and others who oppose pro-developer
changes to takings law were largely absent. Lawyers who
represent developers and other takings claimants
dominated the debate. The ABA should not endorse a
so-called consensus derived from such a one-sided
process.
Second, there can be little doubt that if the ABA were
to endorse the retreat consensus, the NAHB and its allies
would try to use the endorsement to jumpstart the
legislative process on the federal ripeness bill.
Although the ABA has weighed in on controversial issues
in the past, to my knowledge it has never endorsed a
policy position so closely related to a pending bill
being driven by a single special interest. It is
particularly troubling that both the chief lobbyist and
the principal academic supporter of the bill helped to
draft the proposed ABA position. In leading the fight
against the NAHB bill, Senator Leahy stated that he had
"rarely seen anything so arrogantly special
interest." The ABA should not associate itself with
controversial proposals advanced by such narrow special
interests.
SUBSTANTIVE OBJECTIONS
1. Finality Ripeness
Existing ripeness requirements: Over the years,
the Supreme Court has carefully developed reasonable
"ripeness" rules that prevent developers from
improperly escalating every land use dispute into a
federal takings lawsuit. Under Williamson County
Regional Planning Comm'n v. Hamilton Bank, 473 U.S.
172 (1985), and its progeny, before suing in federal
court a developer must ripen its takings claim by
obtaining a final decision from local officials regarding
how the land may be used. The Court unanimously
reaffirmed its entire line of finality ripeness case law
just two years ago. Suitum v. Tahoe Regional Planning
Authority, 520 U.S. 725, 735-39 (1997).
These ripeness rules make sense because a regulation
effects a taking only when it goes "too far"
and has "very nearly the same effect" as an
expropriation. Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 414-15 (1922). As explained in MacDonald,
Sommer & Frates v. County of Yolo, 477 U.S. 340
(1986),"[a] court cannot determine whether a
regulation has gone 'too far' unless it knows how far the
regulation goes." Id. at 348. Federal
courts also recognize that land use issues are
quintessentially local issues, that land use agencies are
"singularly flexible institutions" (id.
at 350), and that developers should work closely with
local planners before running to federal court, lest they
turn the federal judiciary into a board of zoning
appeals.
The Supreme Court has made clear that a property owner
need not resort to piecemeal litigation or unfair local
procedures. Id. at 350 n. 7. On the other hand,
the owner may be required to submit more than one
development plan because rejection of a single plan does
not automatically suggest that a less ambitious plan will
be denied. Id. at 353 n.9.
The Purported Problem: Like the NAHB ripeness
bill, the retreat's proposed definition of ripeness
appears to be based on a thinly veiled suggestion that
local officials are too incompetent or corrupt to decide
local land use disputes under existing ripeness doctrine.
Under this view, developers need nationwide relief by
relaxing ripeness requirements and authorizing them to
sue local officials in federal court far earlier in the
land use planning process.
As several commentators have noted, however, in many
areas the system already is biased in favor of developers
and against neighboring property owners:
"At the present time, in many areas the cards are
stacked against the neighbors an d they are the ones who
really need judicial help, [and] any change which results
in an across-the-board shift in power away from local
government to landowners and developers is highly
suspect."
Norman Williams, Jr., et al., The White River
Junction Manifesto, 9 Vermont Law Rev. 193, 202, 244
(1984). In view of the intervening Supreme Court
decisions expanding local government liability under the
Takings Clause (e.g., First English
Evangelical Lutheran Church v. County of Los Angeles,
482 U.S. 304 (1987)), this conclusion is even more true
today than it was when it was first articulated.
The Retreat's Proposed Definition of
"Ripeness": Like the NAHB bill, proposition
I.A.2 (labeled "Specific Implementation")
purports to provide a new definition of ripeness for
takings claimants. Under the retreat's definition, a
developer's takings claim would be ripe for adjudication
in federal court after a single application "has
been rejected by the final regulatory authority."
Because the definition does not define the term
"final regulatory authority," it is unclear
whether the developer would be required to pursue a
variance, waiver, or other local procedures before suing
in federal court. This ambiguity alone renders the
definition fatally flawed, for it would allow developers
to argue that they should be permitted to side-step
important local processes. These local procedures often
are the most convenient and inexpensive forums for
neighbors and other community residents to voice concerns
with a development project. Moreover, even where
developers do not actually file suit in federal court,
they could threaten early federal court litigation and
thus exert undue pressure on local officials to approve
inappropriate development proposals.
Like the NAHB bill, the retreat's proposed definition
of ripeness would give a developer a ripe takings claim
after the rejection of one development plan, no matter
how harmful it would be to the local community, even if
local officials would approve a less harmful plan. Local
communities can ill-afford this threat of premature
litigation. As noted by the Senate Committee Report on
the NAHB bill,
"[t]he top four residential developers in the
country have annual revenues in excess of $1 billion per
year. Most of our small towns generate less than $10
million a year in tax revenues [and] * * * 90 percent of
cities and towns in America have less than 10,000 people.
These towns cannot support even one municipal lawyer,
much less the number that would be required to battle
billion-dollar developers. Under the threat of battling
large corporate developers with deep pockets, more local
governments would opt to settle the case at inflated
compensation standards or let the development go
ahead."
S. Rep. No. 242, supra, at 45.
Like the NAHB bill, under the retreat's definition of
ripeness a local community could avoid the threat of
litigation only if it could demonstrate precisely how the
owner's development proposal could be made approvable.
This extraordinary proposal would impose an unprecedented
burden on local governments, above and beyond their
normal planning responsibilities, to prepare
site-specific plans for a developer regardless of the
seriousness or economic viability of the proposed
project. In other words, to avoid immediate federal court
litigation, the local community would need to assume the
burden and expense of doing the developer's planning work
for him.
If local land use procedures need to be improved in a
specific community, the solution is to reform those
procedures at the state and local level. Indeed, many
states and localities are doing just that by enacting
permitting deadlines, streamlining procedures, and
implementing other reforms to expedite the application
process. The ABA, however, should not endorse the NAHB's
failed legislative proposal, which would
constitutionalize a "one-size-fits-all" mandate
and severely tilt the playing field toward developers in
every community in the country.
2. The "State Compensation"
Requirement
Existing law: In Williamson County,
the Supreme Court also made clear that a federal takings
claim against a state or local government may not be
filed in federal court unless the claimant has pursued
available state procedures for obtaining compensation.
The Court based this requirement on the text of the
Takings Clause itself, which does not bar all takings,
but only uncompensated takings. The Court reasoned that a
federal court cannot determine whether a state or local
government has effected an uncompensated taking unless
the claimant has requested compensation from the courts
of that state. If a state court awards compensation, the
local government cannot be said to have effected an
uncompensated taking. Just a few weeks ago, the Supreme
Court emphatically reaffirmed this requirement in City
of Monterey v. Del Monte Dunes at Monterey, Ltd, 119
S. Ct. 1624, 1641, 1644 (1999).
The NAHB bill: The failed NAHB bill purported
to abolish altogether any requirement to seek
compensation in state court under Williamson County.
It thus would have allowed developers to bypass state
courts in challenging local land use decisions. This
provision in particular prompted the Conference of State
Supreme Court Justices to oppose the bill. It was also
this provision that caused the U.S. Department of Justice
to conclude that the bill raised serious constitutional
concerns, given that the requirement to file in state
court is derived from the text of the Takings Clause
itself.
The Retreat "Consensus": The three
propositions set forth in Section I.B of the "Areas
of Consensus" document are aimed at undermining the
requirement to seek compensation in state court. They are
baseless and should be rejected.
The first (I.B.1) purports to identify an alleged
circuit conflict regarding a developer's ability to
relitigate issues in federal court after seeking
compensation in state court. The NAHB uses the same
argument in promoting its federal ripeness legislation.
In fact, the circuits uniformly have ruled that
developers and other takings claimants are subject to the
federal "full faith and credit" statute (28 USC
1738) where appropriate. No court has the discretion to
ignore the federal "full faith and credit"
statute, which is one of the oldest provisions in the
U.S. Code.
In arguing that there is a circuit conflict, Professor
Kanner cited certain cases in which courts have held that
a property owner may "reserve" the federal
constitutional claim while litigating state claims for
compensation in state court as required by Williamson
County. Such reservations are not unusual, but they
do not authorize courts to ignore the federal "full
faith and credit" statute. Instead, they allow
claimants to return to federal court to litigate
unresolved issues. This is precisely what happened in Dodd
v. Hood River County, 59 F.3d 852, 862 (9th Cir.
1995), where the Ninth Circuit allowed the owner to
reserve the federal takings claim while litigating state
claims in state court. When the owner returned to federal
court, the Ninth Circuit gave full faith and credit to
the state court's determination regarding the economic
impact of the challenged environmental safeguards, but
otherwise fully considered the federal takings claim on
the merits, rejecting it because the environmental
protections at issue were reasonable and the owners
lacked investment-backed expectations to use their
property in a manner that contravened pre-existing rules.
Dodd v. Hood River County, 136 F.3d 1219,
1229-30 (9th Cir. 1998).
Like the NAHB bill, proposition I.B.1 is premised on
the mistaken notion that claimants have a right of
unfettered access to the federal courts. In Allen v.
McCurry, 449 U.S. 90 (1980), the Supreme Court
expressly rejected this contention. There, a criminal
defendant unsuccessfully relied on an alleged violation
of the Fourth Amendment in a state court criminal trial,
and subsequently brought an action in federal court under
42 USC 1983 to recover damages for the alleged violation.
The Supreme Court ruled that the state court's rejection
of the allegation precluded relitigation of the matter in
federal court under the federal "full faith and
credit" statute and generally applicable principles
of res judicata and collateral estoppel. After concluding
that the "full faith and credit" statute
applies in Section 1983 cases, the Allen Court
wrote:
"The actual basis of the Court of Appeals'
holding appears to be a generally framed principle that
every person asserting a federal right is entitled to one
unencumbered opportunity to litigate that right in a
federal district court, regardless of the legal posture
in which the federal claim arises. But the authority for
this principle is difficult to discern. It cannot lie in
the Constitution, which makes no such guarantee, but
leaves the scope of the jurisdiction of the federal
district courts to the wisdom of Congress. And no such
authority is to be found in [section]1983 itself. For
reasons already discussed at length, nothing in the
language or legislative history of [section]1983 proves
any congressional intent to deny binding effect to a
state-court judgment or decision when the state court,
acting within its proper jurisdiction, has given the
parties a full and fair opportunity to litigate federal
claims, and thereby has shown itself willing and able to
protect federal rights. * * * There is, in short, no
reason to believe that Congress intended to provide a
person claiming a federal right an unrestricted
opportunity to relitigate an issue already decided in
state court simply because the issue arose in a state
proceeding in which he would rather not have been engaged
at all."
Allen, 449 U.S. at 103-04 (footnotes
omitted). After having rejected the contention that
constitutional claimants are always entitled to "a
second bite at the apple" in federal court, the
Supreme Court reaffirmed the ability of state courts to
address federal claims:
"The only other conceivable basis for finding a
universal right to litigate a federal claim in a federal
district court is hardly a legal basis at all, but rather
a general distrust of the capacity of the state courts to
render correct decisions on constitutional issues. It is
ironic that Stone v. Powell [, 428 U.S. 465
(1976)] provided the occasion for the expression of such
an attitude in the present litigation, in view of this
Court's emphatic reaffirmation in that case of the
constitutional obligation of the state courts to uphold
federal law, and its expression of confidence in their
ability to do so."
Allen, 449 U.S. at 105.
The NAHB has tried to distinguish Allen by
arguing that unlike takings claimants, (who are required
by Williamson County to seek compensation in
state court), the criminal defendant in Allen
was not compelled to raise the Fourth Amendment issue in
state court. The Allen Court assumed just the
opposite, however, noting that "it is difficult to
imagine a defendant risking conviction and imprisonment
[by not raising the issue in state court] because he
hoped to win a later civil judgment based upon an
allegedly illegal search and seizure." Id.
at 104 n.23. Thus, even though the criminal defendant in Allen
was effectively compelled to raise the issue in state
court, the Allen Court held that he was still
precluded from relitigating the issue in federal court.
Some have argued that Allen is
distinguishable because the criminal defendant had the
opportunity to litigate the federal constitutional issue,
whereas a takings claimant must pursue state claims in
federal court and might subsequently be precluded from
ever litigating the federal claim. In fact, however,
under the "full faith and credit" statute and
the doctrines of claim and issue preclusion, a takings
claimant will be precluded from relitigating only those
matters that were (or could have been) raised in state
court. Id. at 94. If the state court has not
fully resolved the federal claim, federal courts will
entertain unlitigated issues. E.g., Dodd, 136
F.3d at 1229-30. And where the claimant did not have a
full and fair opportunity to litigate an issue in state
court, the federal court will hear the claim. Allen,
449 U.S. at 95.
Application of the doctrines of claim and issue
preclusion in actions under Section 1983 reduces wasteful
relitigation and "promote[s] the comity between
state and federal courts that has been recognized as a
bulwark of the federal system." Id. at
95-96. By suggesting that these doctrines should be
relaxed in takings cases, the NAHB and its allies are
effectively seeking preferential treatment -- a chance to
get two bites at the apple -- that has been denied to
criminal defendants and other constitutional claimants.
The motive behind Proposition I.B.1 is perhaps
revealed by a petition for certiorari filed in June 1999
by three members of the retreat Organizing Committee. See
Petition for Certiorari, Rainey Brothers Construction
Co. v. Memphis and Shelby County Board of Adjustment
(filed July 6, 1999). The Petition (p.22) requests the
Supreme Court either to "reconsider" Williamson
County or to relax the rules of claim and issue
preclusion for takings claimants. No doubt, the
Petitioners and similar litigants would like ABA support
for their position, but such support would be highly
inappropriate. To urge reconsideration of Williamson
County is to ignore the very text of the Takings
Clause, as well as more than a decade of precedent
reaffirmed by the Court just weeks ago. To urge a
relaxation of generally applicable rules of res judicata
is to ignore the federal "full faith and
credit" statute, to disrespect the vital role of
state courts in our federal sys tem, and to promote
special treatment of property owners not afforded to
claimants under other constitutional provisions (like the
defendant in Allen). The ABA should do neither.
Propositions I.B.2 and 3 likewise are designed to
undermine the state compensation requirement by
suggesting that an "unfairness" was created by City
of Chicago v. International College of Surgeons, 522
U.S. 156 (1997), which allows a municipality to remove
certain state law claims to federal court under the
federal "supplemental jurisdiction" statute (28
USC 1367(a)). The NAHB uses the same argument in
promoting its federal ripeness bill, suggesting it is
unfair to allow municipalities (but not takings
claimants) to litigate in federal court in the first
instance. In College of Surgeons, however, the
Court was silent regarding the ability to remove a
federal takings claim to federal court. The district
court in that case apparently erred in allowing a federal
takings claim to proceed in federal court since, under Williamson
County, no violation of the Takings Clause could
have occurred until the claimant was denied compensation
in state court. The Supreme Court's ruling, however, does
not address (and certainly does not endorse) the district
court's error in this regard. Despite a vigorous dissent
in College of Surgeons, the dissenters did not
even cite Williamson County, much less suggest
any tension or unfairness arising from the two rulings.
The retreat essentially is asking the ABA to address an
apparent error by a single district court, and there is
no compelling need to do so. More importantly, the ABA
should not be made a partner to the developers' attempt
to misuse College of Surgeons in a backdoor
attempt to undercut Williamson County, the
essential role of state courts, and the language of the
Takings Clause.
3. Other Issues
Space precludes a comprehensive discussion of the many
errors and imprecisions that attend the other
propositions in the "Areas of Consensus"
document. Some of the more serious errors are identified
below.
Expectations: Proposition II.1 states that an
owner's expectations, as defined by state law, are useful
in determining the existence of protected property
interests. While this assertion undoubtedly is true, it
suggests that expectations and property interests are
defined only by state law, which is wrong. Expectations
also may be shaped by federal law and other sources. E.g.,
Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1028-29 (1992) (federal navigational servitude
shapes owners' expectations and property interests).
Moreover, the proposed proposition could be read to
suggest that the role of expectations is limited to
defining property interests, which is wrong. Under
longstanding precedent, an owner's expectations as shaped
by federal and state law may preclude takings liability
even where the underlying property interest remains
unaffected. E.g., Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1006-07 (1984) (pre-existing
federal pesticide statute that permits disclosure of
trade secrets submitted with a registration application
shapes the expectations of the owner of the trade secrets
in a way that precludes takings liability,
notwithstanding the owner's cognizable property
interest).
Accordingly, this proposition would not clarify and
enhance takings jurisprudence, but instead muddy the
waters.
Vested Rights: Proposition II.2 states that
vested rights should be recognized as a distinct property
interest. Although the proposition does not expressly
indicate whether such interests should be compensable
under the Takings Clause, it is likely that this
proposition would be so interpreted because the retreat
was limited to takings issues.
The vested rights doctrine, however, was developed
from the Due Process Clause and generally has been viewed
as giving rise to equitable relief. J. Juergensmeyer
& T. Roberts, Land Use Planning and Control Law,
pp. 227-28 (1998). Indeed, the terms "vested
rights" and "estoppel" often are used
interchangeably. Id. Where government officials
violate a vested right, the property owner is entitled to
injunctive relief. The proposition would not clarify or
enhance the law, but instead create confusion by
suggesting that the owner is automatically entitled to
compensatory relief as well. Developers could exploit
this confusion at the expense of neighboring property
owners and the community at large by threatening a suit
for compensation whenever there is disagreement over
whether a vested right exists, thereby exerting undue
pressure on local officials to allow development even
where a legitimate dispute exists over the developer's
right to pursue the project.
Proposition II.2 is designed to promote the use of
vested right statutes, which developer associations are
pursuing across the country to strengthen their
negotiating position in local land use disputes. Courts
are fully able to determine whether a vested right
exists, and it would be inappropriate for the ABA to
endorse a legislative vehicle that would threaten to tip
the scales further in favor of developers.
Segmentation: Proposition III.1 states that in
defining the relevant parcel for takings analysis (the
so-called "denominator" issue), courts should
use a standard that is "not malleable by either the
property owner (segmentation) or by the government
(agglomeration)." The proposal to disallow
segmentation by the owner is black letter law, a
principle often referred to as the non-segmentation
principle. E.g., K & K Construction,
Inc. v. Department of Natural Resources, 456 Mich.
570, 575 N.W.2d 531 (Mich. 1998). It is not at all clear
why the ABA needs to restate and ratify long established
principles of takings jurisprudence.
On the other hand, the proposal to disallow
agglomeration by the government is unclear. The
term "agglomeration" does not appear in Supreme
Court takings case law and is not generally used in
takings jurisprudence. Because the term is unfamiliar and
undefined, the proposition could be construed to conflict
with the bedrock principle that courts should consider a
takings claimant's entire parcel, or what the Supreme
Court calls the "parcel as a whole." E.g.
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480
U.S. 470, 498-501 (1987); Penn Central Transportation
Co. v. New York City, 438 U.S. 104, 130-31 (1978).
If the proposition is intended to mean simply that the
government should not be allowed unfairly to
bundle property interests in defining the relevant
parcel, it should be re-written to state this expressly,
though again no showing has been made that courts need
guidance from the ABA on such an obvious point.
Propositions III.2 and 3 list various factors that
courts consider in defining the relevant parcel, a list
derived in part from Zealy v. City of Waukesha,
548 N.W.2d 528 (Wis. 1996), and Ciampitti v. United
States, 22 Cl. Ct. 310 (1991). But the proposed
laundry list is far less sophisticated and nuanced than
existing case law because it ignores certain presumptions
and other principles that courts have developed. For
example, contiguous property under common ownership
generally should be treated as a single relevant parcel. Zealy,
548 N.W.2d at 532. Moreover, a takings claimant who
treats property as a single parcel for purposes of
purchase and financing should not be allowed to segment
the property for purposes of takings analysis. Ciampitti,
22 Cl. Ct. at 320. By ignoring the dispositive nature of
certain factors and other governing principles developed
by the courts, the retreat's laundry list could inject
confusion into takings analysis.
Transferable Development Rights (TDRs):
Proposition III.3 asserts that the status of TDRs in
determining takings liability is an unanswered question.
The Supreme Court, however, resolved the role of TDRs in
takings analysis twenty years ago in Penn Central,
where it used TDRs (among other things) to reject a
takings challenge to the application of New York's
historic preservation laws to prohibit construction of a
skyscraper atop Grand Central Terminal. 438 U.S. at
137-38 (while TDRs might not have constituted just
compensation had a taking occurred, they undoubtedly
mitigated the economic impact of the challenged
protections and thus weighed against a finding of takings
liability).
To be sure, in a recent concurrence three Justices
suggested that this ruling be reconsidered. See
Suitum v. Tahoe Regional Planning Authority, 520
U.S. 725, 749 (1997) (Scalia, J., with O'Connor and
Thomas, JJ., concurring in part and concurring in the
judgment). But such a suggestion by less than a majority
of the Court hardly renders "unanswered" a
matter resolved by the High Court long ago. Lower courts
agree. E.g., Good v. United States, 39
Fed. Cl. 81, 108 (1997) (Suitum concurrence
"underscores" the Supreme Court's holding in Penn
Central that TDRs are relevant in determining
takings liability).
If the ABA were to take the position that the matter
is unresolved, developers and others undoubtedly would
exploit this position in their efforts to overturn Penn
Central's ruling on this issue. Moreover, the retreat has
out-"Scalia-ed" Justice Scalia, for even he
recognizes that TDRs should be considered in cases
similar to Penn Central. See Suitum,
520 U.S. at 749 (distinguishing Penn Central's
treatment of TDRs).
TDRs are an innovative and essential tool used by land
use planners across the country to provide relief to
property owners. The ABA should decline the retreat's
invitation to ignore Supreme Court precedent at the
expense of this innovative land use planning technique.
"Bad Faith" Moratoria: Proposition
IV.5 states that a planning moratorium is a compensable
taking where it is implemented in bad faith. This
"bad faith" standard raises the question of
whether government action is compensable where it does
not "substantially advance legitimate state
interests," a standard articulated in Agins v.
City of Tiburon, 447 U.S. 255, 260 (1980).
In 1998, however, five Justices strongly questioned
the viability of Agin's "substantially advance"
test to determine takings liability. See Eastern
Enterprises v. Apfel, 118 S. Ct. 2131, 2157 (1998)
(Kennedy, J., dissenting in part) (the Agins
"substantially advance" test "is in uneasy
tension with our basic understanding of the Takings
Clause"); id. at 2161 (Breyer, J., with
Stevens, Souter, and Ginsburg, JJ. dissenting) (the
Takings Clause does not apply to a challenge to arbitrary
or unfair government action, but instead provides
compensation for legitimate government action). Because
the Takings Clause requires compensation only where
property is taken for a public use, it is not appropriate
to impose takings liability for government action taken
in bad faith or that otherwise fails to advance a
legitimate public interest.
Curiously, during the first few minutes of the
retreat, one participant suggested that the retreat
consider the continued viability of the Agins
standard, an issue widely viewed as being among the most
important unanswered questions in takings jurisprudence.
The issue is so significant that the Court of Federal
Claims recently held a two-day conference devoted
exclusively to this question. Yet the retreat co-chairs
declined to alter the agenda to allow consideration of
this important issue. Having taken the Agins
issue off the table on the first day, the retreat then
approved the bad-faith moratorium proposition, which
directly implicates the Agins theory of
liability. One can only surmise that many retreat
participants were primarily interested in expanding
takings liability, rather than genuinely clarifying
takings jurisprudence.
In view of Eastern Enterprises, developers
have good reason to believe that the Supreme Court soon
will formally repudiate the much-criticized Agins
theory of takings liability, and they evidently hope that
an ABA endorsement of the theory will help resuscitate
it. The ABA should refuse to do so. |
