Supreme Court of the United States
October Term, 1997
CITY OF
MONTEREY,
Petitioner,
v.
DEL MONTE DUNES AT MONTEREY, LTD. AND
MONTEREY-DEL MONTE DUNES CORPORATION,
Respondents.
On
Petition For A Writ Of Certiorari To The United
States Court Of Appeals For The Ninth Circuit
PETITION
FOR A WRIT OF CERTIORARI
Respectfully submitted,
RICHARD E.V. HARRIS*
GEORGE A. YUHAS
ORRICK, HERRINGTON & SUTCLIFFE LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
Telephone: (415) 392-1122
Counsel for Petitioner
* Counsel of Record
QUESTIONS
PRESENTED
- Whether, in a regulatory
taking action challenging a local land use
decision, 42 U.S.C. § 1983 requires that
all liability issues be determined by the court
rather than by a the jury.
- Whether a regulatory taking
can be upheld on the basis of a reasonableness
standard that allowed the trier of fact to reject
substantial conflicting evidence and base
liability on a conclusion that the local
legislative body had acted unreasonably in
denying approval of a proposed development.
- Whether the reasonable
proportionality standard established by this
Court in Dolan v. City of Tigard,
114 S. Ct. 2309 (1994) in the context of property
exactions can properly be applied to an inverse
condemnation claim based upon a regulatory
denial.
PARTIES BELOW
The parties below consisted of
plaintiffs Del Monte Dunes at Monterey, Ltd. and
Monterey-Del Monte Dunes Corporation and defendant City
of Monterey.
TABLE OF
AUTHORITIES
Federal Cases
Agins v. City of
Tiburon,
447 U.S. 255 (1980)
Clajon Production Corp.
v. Petera,
70 F.3d 1566 (10th Cir. 1995)
Coniston Corp. v. Village
of Hoffman Estates,
844 F.2d 461 (7th Cir. 1988)
Corn v. City of
Lauderdale Lakes,
997 F.2d 1369 (11th Cir. 1993)
Del Monte Dunes at Monterey
Ltd. v. City of Monterey,
920 F.2d 1496 (9th Cir. 1990)
Dolan v. City of
Tigard,
114 S. Ct. 2309 (1994)
Euclid v. Ambler
Realty Co.,
272 U.S. 365 (1926)
Goldblatt v. Town of
Hempstead,
369 U.S. 590 (1962)
Greenbriar v. City of
Alabaster,
881 F.2d 1570 (11th Cir. 1989)
Mid Gulf, Inc. v. Bishop,
792 F. Supp. 1205 (D. Kan. 1992)
Midnight Sessions, Ltd.
v. City of Philadelphia,
945 F.2d 667 (3rd Cir. 1991), cert. denied, 112 S.
Ct. 1668 (1992)
New Port Largo Inc. v. Monroe
County,
95 F.3d 1084 (11th Cir. 1996), cert. denied, 117
S. Ct. 2514 (1997)
Nollan v. California
Coastal Commission,
483 U.S. 825 (1987)
Ornelas v. United
States,
116 S. Ct. 1657 (1996)
Penn Central Transport Co
v. City of New York,
438 U.S. 104 (1978)
United States v. Reynolds,
397 U.S. 14 (1970)
Village of Belle Terre v.
Boraas,
416 U.S. 1 (1973)
Warner/Elektra/Atlantic Corp.
v. County of Dupage,
771 F. Supp. 911 (N.D. Ill. 1991)
Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson
City,
473 U.S. 172 (1987)
Zahn v. Board of
Public Works,
274 U.S. 325 (1926)
State Cases
Brock v. State Highway
Commission,
195 Kan. 361, 404 P.2d 934(1965)
City of College Station
v. Turtle Rock Corp,
680 S.W.2d 802 (Tex. 1982)
Hensler v. City of
Glendale,
8 Cal. 4th 1 876 P.2d 1043 (1994)
Federal
Statutes
28 U.S.C. § 1254
28 U.S.C. § 1254(1)
28 U.S.C. § 1331
42 U.S.C. § 1983
Miscellaneous
12 A.L.R. 3d 7 (1987)
PETITION FOR A WRIT OF
CERTIORARI
The City of Monterey
respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the court of
appeals is reported at 95 F.3d 1422 (9th Cir. 1996). Pet.
App. A1-A29. The relevant, prior orders of the district
court are unreported but are included herein at Pet.
App. A30-A43.
JURISDICTION
The court of appeals filed its
initial opinion on September 13, 1996 (95
F.3d 1422). The court of appeals initially granted
rehearing on June 26, 1997 (Pet. App. A44) and
subsequently decided on October 28, 1997 not to
amend its opinion. (Pet. App. A46) The jurisdiction of
this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL,
PROVISIONS, STATUTES
AND REGULATIONS INVOLVED
- The Fourteenth Amendment to
the United States Constitution, Section 1,
which provides, in pertinent part:
No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty or
property without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.
- The Fifth Amendment to the
United States Constitution, which provides, in
pertinent part:
No person shall be . . . deprived
of life, liberty, or property, without due
process of law; nor shall private property be
taken for public use, without just compensation.
- The Seventh Amendment to
the United States Constitution, which provides:
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no
fact trial by a jury, shall be otherwise
reexamined in any court of the United States,
than according to the rules of the common law.
- 42 U.S.C. § 1983,
which provides, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom or usage of any
state or territory or the District of Columbia,
subjects or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for redress.
STATEMENT
This case involves a 37-acre
parcel of undeveloped property located in the coastal
area of City of Monterey in California. The topography of
the property consisted largely of beach area and sand
dunes. Since the early 1970s, the property has been zoned
for residential development.
By virtue of its location and
topography, any development of this property would raise
important environmental considerations. Among other
things, the sand dunes and the vegetation on the property
provided habitat for the endangered Smith's Blue
Butterfly ("SBB"). For this reason, both the
United States Department of Fish and Wildlife
("USFWS") and the California Department of Fish
and Game ("DFG") expressed keen interest in the
property and how any proposed development might impact
the sensitive SBB habitat.
After significant planning
efforts involving the City, the owner of the property and
others over a substantial period, the City gave
conditional approval in September 1994 to a proposed site
plan for a 190-unit condominium development. Among other
things, however, the City advised the property owner that
final approval of this proposed project would be
contingent upon the owner's ability to provide adequate
mitigation of adverse environmental impacts of the
proposed development, including impacts on the SBB
habitat. In this regard, the City required that the owner
prepare a proposed habitat restoration plan and seek
approval of that plan from USFWS and DFG.
Shortly after the City gave this
conditional approval, Respondents purchased the subject
property in December 1994 for approximately $3.7 million.
Thereafter, after eighteen months of additional
consultations involving the City, Respondents, the
California Coastal Commission, USFWS, DFG, other experts,
and the public, Respondents sought final approval of the
proposed 190-unit development. As part of the public
hearing process, Respondents presented a report from its
consultant that concluded that the restoration plan
generated as part of the proposed development had
adequately mitigated any impact on the sensitive habitat
located thereon. USFWS and DFG expressed contrary views
as did members of the public and other experts. USFWS
concluded that Respondents' proposed restoration plan had
"little chance for long term success." The DFG
advised the City that it had problems with the proposed
restoration plan and that the proposed plan had not been
approved by DFG. In June 1996, the City Council denied
the proposed development because, among other things, it
concluded that the proposed development and restoration
plan did not adequately address the City's concerns over
habitat protection.
Immediately thereafter,
Respondents filed suit alleging that the City's denial of
the proposed 190-unit project constituted a denial of its
rights to substantive due process and equal protection
and a taking of the subject property. The district court
exercised jurisdiction pursuant to 28 U.S.C.
§ 1331. An initial dismissal of the action on
ripeness grounds was reversed by the Ninth Circuit and
the matter was remanded to the district court. Del
Monte Dunes at Monterey Ltd. v. City of Monterey,
920 F.2d 1496 (9th Cir. 1990). In December 1991,
Respondents sold the property to the State of California
for $4.5 million. However, Respondents continued to
pursue their constitutional challenges, and the matter
proceeded to trial in early 1994.
Prior to the commencement of
trial, the City moved for an order that the liability
issues raised by each of Respondents' claims were to be
decided by the Court rather than the jury. The district
court granted this motion insofar as it was directed at
the substantive due process claim and concluded that it
was its responsibility to decide whether the City's
actions were arbitrary and capricious. Pet. App. A33.
However, the district court ruled that all aspects of
Respondents' equal protection and inverse condemnation
claims would be decided by the jury. Pet. App. A33-A34.
The evidence at trial consisted
largely of the same conflicting evidence that the City
Council had considered in mid-1986 when it denied the
proposed development. Respondents presented the same
habitat expert that they had presented to the City
Council, and he expressed the same opinion that the
habitat restoration plan that had been proposed by
Respondents was adequate. The City introduced contrary
opinions from a different expert who had also previously
expressed his opinions to the City Council. The City also
introduced as evidence the same USFWS and DFG evaluations
of likely environmental impacts and the inadequacy of the
proposed restoration plan that had been considered by the
City Council.
After hearing all of the
evidence, the District Court concluded that the City had
not acted arbitrarily and capriciously so as to violate
Respondents' right to substantive due process. The Court
concluded that, in rejecting the proposed development,
the City "was acting for valid regulatory reasons
and not attempting to forestall all reasonable
development." Pet. App. A43. In arriving at this
conclusion, the district court noted that the proposed
project raised environmental issues that both USFWS and
DFG had concluded were not adequately mitigated. Pet.
App. A42.
In contrast, with respect to the
claims for denial of equal protection and for inverse
condemnation, the jury concluded that the City's denial
of the proposed 190-unit condominium development had
violated Respondents' constitutional rights. The jury
awarded $1.45 million in temporary takings damages.
On appeal, the City challenged
the jury's decision as to both the equal protection and
inverse condemnation claims. The Court of Appeals for the
Ninth Circuit affirmed the judgment on the basis of the
jury's inverse condemnation verdict and therefore did not
deem it necessary to address the City's challenges to the
equal protection verdict.
With respect to the inverse
condemnation claim, the panel ruled that all issues
relating to the inverse condemnation claim were properly
submitted to the jury for decision. Pet. App. A7-A15. The
court reasoned that such inverse condemnation claims were
analogous to common law damage actions such as actions
for trespass or replevin which had historically been
triable by jury at common law. Pet. App. A9. The Ninth
Circuit further concluded that the issues of inverse
condemnation liability were essentially factual questions
for the jury rather than mixed questions of fact and law
of a type that were properly decided by the court. Pet.
App. A15.
As to the standard that should
be applied to determine whether the jury's inverse
condemnation verdict could be upheld, the Ninth Circuit
applied a reasonableness test. The court explained that
the jury's decision was sustainable so long as there was
evidence in the trial record that would support a finding
by the jury that the City had acted unreasonably in
concluding that the proposed project failed to provide
adequate protection for sensitive environmental habitat
or otherwise failed to satisfy the conditions imposed by
the City's conditional approval. Pet. App. A14, A16-A20.
In arriving at this
reasonableness standard, the Ninth Circuit did not simply
determine whether the jury could have properly found that
the City's action in denying the proposed 190-unit
project failed to substantially advance the legitimate
public goal of protecting the environment. Instead, the
court applied the standard of rough proportionality based
upon this Court's decision in Dolan v. City of
Tigard, 114 S. Ct. 2309 (1994) which was decided
several months after the trial in the present action. In
framing the issue, the Ninth Circuit reasoned that
"[e]ven if the City had a legitimate intent in
denying Del Monte's development application, its action
must be 'roughly proportional' to furthering that
interest." Pet. App. A16. The Ninth Circuit
concluded that "[s]ignificant evidence supports Del
Monte's claim that the City's actions were
disproportional to both the nature and extent of the
impact of the proposed development." Pet. App. A20.
REASONS FOR
GRANTING THE PETITION
In holding that a party has a
right to have a jury determine liability in an inverse
condemnation claim, the Ninth Circuit's decision
conflicts directly with decisions of the Eleventh Circuit
and departs sharply from the accepted procedure for
litigating such claims in both federal and state courts.
Further, the lower court's
conclusion that a jury can invalidate a local legislative
decision and award almost $1.5 million in damages
because it concludes, based upon conflicting evidence,
that the City's legislative decision was unreasonable,
constitutes an entirely new, intrusive standard of
constitutional review that is inconsistent with
long-standing federal precedent and federalism concerns.
Finally, the Ninth Circuit's
application of the rough proportionality standard to
measure the validity of the City's concerns that prompted
denial of the proposed 190-unit development represents an
unwarranted extension of this Court's "rough
proportionality" standard, which was developed in
the context of property exactions, and is inconsistent
with a long string of precedent in which this Court has
held that regulatory takings are to be evaluated based
upon whether the challenged action substantially advances
a legitimate public purpose.
I. THE NINTH CIRCUIT'S
DECISION HAS CREATED A CONFLICT AMONG THE CIRCUITS
CONCERNING THE RIGHT TO JURY TRIAL AS TO INVERSE
CONDEMNATION CLAIMS BROUGHT IN THE CONTEXT OF FEDERAL
CIVIL RIGHTS ACTIONS AND REPRESENTS A SHARP DEPARTURE
FROM THE ACCEPTED AND USUAL COURSE OF LITIGATING SUCH
CLAIMS.
For as long as regulatory
takings claims have been litigated in federal courts, the
issue of inverse condemnation liability has almost
uniformly been decided by courts rather than by juries. See,
e.g., Goldblatt v. Town of Hempstead,
369 U.S. 590 (1962); Warner/Elektra/Atlantic Corp.
v. County of Dupage, 771 F. Supp. 911, 913 (N.D.
Ill. 1991); Mid Gulf, Inc. v. Bishop, 792
F.Supp. 1205, 1215 (D. Kan. 1992). In case after case,
this Court has decided claims of inverse condemnation
liability as matters of law or mixed law and fact. See,
e.g., Nollan v. California Coastal
Commission, 483 U.S. 825 (1987); Agins v. City
of Tiburon, 447 U.S. 255 (1980); Penn Central
Transp. Co v. City of New York, 438 U.S. 104
(1978). Indeed, it was so accepted that such issues were
appropriate for court resolution that, until recently,
the federal courts have rarely been called upon to
expressly address this issue.
The Ninth Circuit's decision
that a jury should decide inverse condemnation liability
issues is a sharp departure from this accepted and usual
approach and represents a clear conflict with the only
other circuit that has squarely addressed this issue. In New
Port Largo Inc. v. Monroe County, 95 F.3d 1084
(11th Cir. 1996), cert. denied, 117
S. Ct. 2514 (1997), the Eleventh Circuit held that
there is no right to jury trial to determine liability in
inverse condemnation claims brought in the context of a
federal civil rights action. The plaintiff in that case
asserted a regulatory taking claim and requested that the
jury be allowed to determine whether such a taking had
occurred. In rejecting this argument, the Eleventh
Circuit explained that it had "discovered no
indication that the rule in regulatory takings cases
differs from the general eminent domain framework in
which issues pertaining to whether a taking has occurred
are for the court, while damage issues are the province
of the jury." 95 F.3d at 1092. On this basis, the
Eleventh Circuit concluded that "no jury had to be
empanelled for the regulatory takings claim." Id.
In reaching its decision that
inverse condemnation liability issues were for the court
to decide, the Eleventh Circuit was following consistent
precedent developed in the context of both direct and
inverse condemnation cases. This Court has recognized
that, in direct condemnation actions, only the issue of
just compensation is for the jury; all other issues are
for the court. United States v. Reynolds,
397 U.S. 14, 18 (1970) ("For it has long been
settled that there is no constitutional right to a jury
trial in eminent domain proceedings."). State courts
have adopted this same principle under state
constitutions: there is generally no right to trial by
jury in condemnation actions except insofar as that right
is specifically enforced by statute or rule. 12 ALR 3d,
7, 11 (1987) ("Generally, trial by jury in eminent
domain proceedings is not guaranteed by the federal or
state constitutions.)
The Ninth Circuit's decision and
its conflict with the Eleventh Circuit's decision in New
Port Largo Inc pose a great risk of seriously
complicating the adjudication of inverse condemnation
matters in both state and federal courts. Other circuits
called upon to address this issue will be faced with two
squarely inconsistent decisions. Although the Ninth
Circuit had the opportunity to try to reconcile its
decision with the decision in New Port Largo Inc,
it made no effort to do so because no such reconciliation
is possible.
The confusion likely to be
spawned by the Ninth Circuit's decision will extend into
the state courts as well. State courts have regularly
ruled that there is no right to have a jury decide
liability issues in a regulatory takings case. See,
e.g., Hensler v. City of Glendale, 8
Cal. 4th 1, 17 876 P.2d 1043, 1052 (1994); Brock
v. State Highway Commission, 195 Kan. 361, 366,
404 P.2d 934, 940 (1965). By concluding that a plaintiff
has a right to have a jury decide all issues in a federal
regulatory takings claim brought under 42 U.S.C.
§ 1983, the Ninth Circuit's decision raises the
risk of confusion and inconsistency between state and
federal treatment of such claims. The potential for such
confusion is especially significant in light of this
Court's repeatedly expressed preference that regulatory
takings claims should first be submitted to state
tribunals for adjudication as a condition precedent to
federal court review. Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172, 194-197 (1987). It would be
highly anomalous, to say the least, to require
adjudication of regulatory takings claims in state courts
where state law and procedure precludes jury resolution
of such claims but then require a jury trial in any
related federal court proceeding arising from the same
dispute.
One need look no further than
this Court's prior decision in Dolan v. City of
Tigard, 114 S. Ct. 2309 (1994) for an illustration as
to how the Ninth Circuit's decision will confuse and
complicate the litigation of takings claims. Dolan
cited to a number of state court decisions that had
previously addressed the issue of the nexus required to
support dedication requirements or other exactions.
Invariably, these state courts had treated this issue as
one for the courts, not for a jury. See, e.g.,
City of College Station v. Turtle Rock Corp,
680 S.W. 2d 802, 804 (Tex. 1982) ("The question of
whether a police power regulation is proper or whether it
constitutes a compensable taking is a question of law and
not a fact.") Yet, the Ninth Circuit decision would
indicate that challenges to exactions under Section 1983
must be submitted to a jury.
The Ninth Circuit's decision to
allow a jury to determine inverse condemnation liability
as a factual matter is also inconsistent with prior
decisions of this Court and the other circuits which have
treated such issues as mixed questions of fact and law to
be decided by courts. This Court has previously
determined the legal question of whether a taking had
occurred by giving essentially de novo
review of the record. For example, in Penn Central
Transp. Co. v. City of New York, 438 U.S. 104
(1978), this Court (as well as the two state appellate
courts that previously considered the takings issue in
that case) gave no deference to the trial court's finding
of liability and ruled that, as a matter of law, the
regulation in question permitted a reasonable beneficial
use of the property. 438 U.S. at 137-138. See also
Goldblatt v. Town of Hempstead, 369 U.S.
590 (1962).
Similarly, various circuits have
held that courts, and not juries, should resolve mixed
questions of law and fact that implicate constitutional
concerns in the land use context. See Midnight
Sessions, Ltd. v. City of Philadelphia, 945
F.2d 667, 682 (3rd Cir. 1991), cert. denied,
112 S.Ct. 1668 (1992); Greenbriar v. City of
Alabaster, 881 F.2d 1570, 1578 (11th Cir. 1989).
This Court has recognized the
importance of maintaining judicial control over important
constitutional standards. Ornelas v. United
States, 116 S.Ct. 1657 (1996). This requires that
even ad hoc inquiries that involve mixed questions of
fact and law should be treated as legal questions to be
decided by the courts where doing so will increase
consistency and clarity of constitutional principles. Id.
at 1662-1663. Allowing juries to decide the meaning of
standards such as whether a land use decision
"substantial advances" a public purpose or
deprives a property of all "economically viable
use" would be contrary to these goals.
II. THE NINTH CIRCUIT'S
DECISION THAT THE JURY COULD DETERMINE INVERSE
CONDEMNATION LIABILITY BY APPLYING A REASONABLENESS
STANDARD TO CONFLICTING EVIDENCE FUNDAMENTALLY ALTERS THE
ROLE OF THE CONSTITUTION IN THE REVIEW OF LOCAL LAND USE
POLICIES AND DECISIONS.
The Ninth Circuit's decision in
this case fundamentally changes and expands the role of
the Fourteenth Amendment and Section 1983 in the
review of local land use policies and decisions. It does
so by changing the standard of constitutional review in
regulatory takings cases from one of "rational
relationship" between the challenged action and
public purpose, which reflects deference to local
legislative bodies, to one of "reasonableness"
with the jury free to find liability if it disagrees with
the conclusion reached by the local legislative body
based upon essentially the same evidence.
For many years, this Court has
held that, in a regulatory takings context, inverse
condemnation liability exists if the challenged action
fails to substantially advance a legitimate public
purpose. Agins v. City of Tiburon, 447 U.S.
255, 260 (1960). In regulatory situations, the local
agency meets this standard so long as there exists a
rational relationship between the challenged action and a
legitimate public concern. Penn Central Transp. Co.
v. City of New York, 438 U.S. 110, 129-130 (1978);
Euclid v. Ambler Realty Co., 272 U.S. 365,
395 (1926).
By its nature, this standard of
liability is highly deferential to local public entities.
It had its origins in principles of substantive due
process and the arbitrary and capriciousness standard. So
long as there was some basis for the local agency's
conclusion or it was "at least debatable" that
the challenged action related to a legitimate goal, it
would not be constitutionally infirm under this theory. Village
of Belle Terre v. Boraas, 416 U.S. 1, 8
(1973); Zahn v. Board of Public Works, 274
U.S. 325, 328 (1926). This deferential standard was
essential to ensure that federal courts and federal law
did not displace the authority and discretion properly
belonging to local decisionmakers. See Corn
v. City of Lauderdale Lakes, 997 F.2d 1369, 1389
(11th Cir. 1993); Coniston Corp. v. Village of
Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988).
The Ninth Circuit's decision
fundamentally changes this deferential standard. The
court permitted the jury to declare the City's action to
be constitutionally defective so long as it concluded,
based upon conflicting evidence, that the City's
determination that various concerns had not been
satisfied was unreasonable. This unprecedented standard
of constitutional review exposes local public bodies to
federal inverse condemnation liability any time a jury
chooses to reject evidence supporting the local decision
and to accept other evidence that the legislative or
quasi-legislative body found unpersuasive.
In effect, the panel's decision
would allow any jury to become a "zoning board of
appeal under federal law" with the power to impose
constitutional liability if it chooses to reject the
evidence relied upon by the local legislative body and
conclude that the quasi-legislative action was
unreasonable. In the present case, for example, the
record demonstrates that City Council was presented with
substantial evidence from state and federal regulatory
bodies and others that the proposed development would
harm sensitive habitat. Respondents presented contrary
evidence. Under the traditional reasonable relationship
test, the City's action could not be found
unconstitutional merely because the trier of fact chose
to accept the property owner's evidence that it had
adequately mitigated the environmental impacts. However,
by establishing a new standard of liability that permits
a jury to reweigh the evidence and apply de novo review
of the City's decision, the panel has fundamentally and
erroneously changed the scope of constitutional review of
local land use decisions.
The Ninth Circuit's adoption of
a reasonableness test as the constitutional standard of
review has implications for virtually all land use
decisions made by public agencies. Almost invariably,
significant development proposals will raise a number of
legitimate public concerns and the information considered
by the local decisionmaking body will be in conflict as
to the magnitude of these concerns and the extent to
which they have been mitigated. The Ninth Circuit's
standard allows any party to mount a successful
constitutional challenge to any denial of a project
merely by showing that the local decisionmaker acted
unreasonably in rejecting the evidence favoring
development. Essentially, the Ninth Circuit has replaced
the deferential standard of review which requires only a
rational relationship between a legitimate concern and
the challenged decision with a standard that allows de
novo review by a jury of the evidence considered
and rejected by the local legislative body.
The extraordinary result of the
panel's application of this new standard is made stark by
comparing the panel's review of the jury's decision with
the district court's decision on the analogous
substantive due process claim which was not challenged by
Respondents. Based upon the same evidence considered by
the jury, the district court decided, as a matter of law,
that the City had not acted arbitrarily and "was not
attempting to forestall all reasonable development."
The district court concluded that the City was acting in
good faith and that there was substantial evidence
supporting the City's concern that habitat protection
concerns had not been met. Pet. App. A36-A43. Yet,
the panel allowed the jury finding of inverse
condemnation liability to stand merely because
Respondents had presented evidence (apparently accepted
by the jury) that the City's decision was unreasonable
and would not permit development.
III. THE NINTH CIRCUIT'S
DECISION CONSTITUTES AN ERRONEOUS AND UNWARRANTED
EXPANSION OF THE ROUGH PROPORTIONALITY TEST ADOPTED BY
THIS COURT IN DOLAN V. CITY OF TIGARD.
While the jury was asked in jury
instructions to determine whether the City's action bore
a reasonable relationship to any legitimate public
purpose, the panel's decision upholding inverse
condemnation liability does not apply this standard.
Rather, the panel imposes a new and different standard
based upon Dolan v. City of Tigard, 114
S.Ct. 2309 (1994) which was decided by the Supreme Court
months after the jury reached its verdict in the present
case. The panel concluded that the City's action must not
only further a legitimate public purpose but that the
action must also be "roughly proportional" to
that purpose. Pet. App. A16. ("Even if the City
had a legitimate interest in denying Del Monte's
development, its actions must be 'roughly proportional'
to furthering that interest.")
As a matter of law, the panel's
extension of the Dolan holding into the regulatory
takings context of the present case was inappropriate. Dolan
arose in the context of a land use decision that had
required that a landowner dedicate property to a public
entity and provided a standard for determining whether
such a dedication would be excessive. Central to the Dolan
analysis is the distinction between land use regulation
and governmental actions that require that an interest in
the property be given to the public agency. As explained
by the Chief Justice in explaining the rationale of Dolan
and the Court's prior decision in Nollan v. California
Coastal Commission, 483 U.S. 825 (1987):
The sort of land use regulations
discussed in the [regulatory takings] cases just cited
. . . differ from the present case
. . . . [T]he conditions imposed were not
simply a limitation on the use petitioner might make of
her own parcel but a requirement that she deed portions
of her property to the city.
114 S.Ct. at 2315.
Dolan did not purport to
establish a new standard of liability in all regulatory
takings cases. In articulating its rough proportionality
standard, Dolan expressly stated that the city in
that case "must make some sort of individualized
determination that the required dedication related both
in nature and extent to the impact of the proposed
development." 114 S.Ct. at 2319-2320. Thus, by its
own terms, this standard was applied only to a challenged
exaction and nothing in Dolan suggests that its
holding changed the settled standard of inverse
condemnation liability in regulatory taking cases that a
challenged action need only bear a reasonable
relationship to a legitimate public purpose. See, e.g.,
Clajon Production Corp. v. Petera, 70 F.3d
1566, 1578 (10th Cir. 1995) ("Based on a close
reading of Nollan and Dolan, we conclude
that these cases (and the tests outlined therein) are
limited to the context of development exactions where
there is a physical taking or its equivalent.").
The Ninth Circuit's decision
takes the Dolan "rough proportionality"
standard and applies it in an entirely different context.
The Ninth Circuit extended Dolan to measure the
constitutionality of the City's regulatory decision to
deny Respondents' proposed development. The basis for
that denial was not Respondents' unwillingness to convey
property interests demanded by the City. Rather, the
denial was based upon the City's determination that the
proposed development posed unacceptable environmental
impacts that had not been mitigated by Respondents.
Applying the rough
proportionality standard in regulatory contexts such as
this would constitute a major departure in the
constitutional review of such decisions. Any dissatisfied
property owner could challenge rationally-based land use
regulations or decisions that had appropriate goals by
claiming that the concerns underlying the decision were
not roughly proportional to the impacts of the proposed
development. Thus, for example, a local legislative
decision to deny a project based upon concerns that the
proposed project did not adequately address risks of
earth movement could be constitutionally challenged on
the ground that these concerns were not roughly
proportional to the impacts of the project. Similarly, a
regulatory decision that a proposed development had not
mitigated traffic problems could be rendered void unless
the deciding body established that its concerns were
roughly proportional to the traffic impacts of the
project.
In and of itself, extending the
rough proportionality standard into the context of
regulatory decides is an erroneous and unwarranted
expansion of constitutional review over land use
decisionmaking. When combined with the Ninth Circuit's
application of a reasonableness standard of liability,
the Ninth Circuit's decision improperly federalizes land
use planning and exposes local legislative bodies across
the country to great uncertainty and unwarranted
liability.
CONCLUSION
The petition for a writ of certiorari should be
granted to resolve a conflict among the circuits and to
provide clear guidance to both federal and state courts
as to the appropriate federal standards of review and
liability in regulatory takings cases.
Respectfully submitted,
RICHARD E.V. HARRIS*
GEORGE A. YUHAS
ORRICK, HERRINGTON & SUTCLIFFE LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
Telephone: (415) 392-1122
Counsel for Petitioner
* Counsel of Record
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