TABLE OF CONTENTS TABLE OF AUTHORITIES... IDENTITY AND INTEREST OF AMICUS... 1 ARGUMENT... 3

Transcription

1 PLF CON IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION TWO Nos. A and A LOCKAWAY STORAGE, et al., Plaintiffs and Respondents, V. COUNTY OF ALAMEDA, Defendant and Appellant. Court of Appeal First Appellate District FO ED SEP Dl&na Herbert, Clerk Deputy Clerk 1 On Appeal from the Superior Court of Alameda County (Case No. HG , Honorable James A. Richman and John M. True, III, Judges) BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PLAINTIFFS AND RESPONDENTS LOCKAWAY STORAGE, ET AL. R. S. RADFORD, No Pacific Legal Foundation 930 G Street Sacramento, California Telephone: (916) Facsimile: (916) Attorney for Amicus Curiae Pacific Legal Foundation

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... Page INTRODUCTION... 1 IDENTITY AND INTEREST OF AMICUS... 1 ARGUMENT... 3 I. LOCKAWAY'S REGULATORY TAKINGS CLAIM IS GOVERNED BY PENN CENTRAL... 3 II. THE SUPREME COURT HAS CLARIFIED THAT LANDGATE AND LOEWENSTEIN ARE SUBSTANTIVE DUE PROCESS CASES THAT HAVE NO RELEVANCE TO THIS APPEAL... 5 CONCLUSION CERTIFICATE OF COMPLIANCE... 11

3 TABLE OF AUTHORITIES Page Cases 152 Valparaiso Associates v. City of Cotati, 56 Cal. App. 4th 378 (1997)... 2 Agins v. City of Tiburon, 447 U.S. 255 (1980) Kavanau v. Santa Monica Rent Control Board, 16 Cal. 4th 761 (1997)... 1 Landgate, Inc. v. California Coastal Commission, 17 Cal. 4th 1006 (1998) , 5-7 Lingle v. Chevron USA, Inc., 544 U.S. 528 (2005) , 6-7 Loewenstein v. City of Lafayette, 103 Cal. App. 4th 718 (2002)... 5, 8 Lucas v. South Carolina Coastal Council, 505 U.S (1992)... 5 Nollan v. California Coastal Commission, 483 U.S. 825 (1987)... 1, 5 Palazzolo v. State of Rhode Island, 533 U.S. 606 (2001)... 1, 3 Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) , 8 San Remo Hotel v. City and County of San Francisco, 27 Cal. 4th 643 (2002)... 1 Santa Monica Beach v. Superior Court, 19 Cal. 4th 952 (1999)... 1 Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725 (1997)... 1 Rule of Court California Rules of Court 8.200(c)... 1

4 INTRODUCTION Pursuant to California Rules of Court 8.200(c), Pacific Legal Foundation (PLF) respectfully submits this brief amicus curiae in support of Plaintiffs and Respondents Lockaway Storage, et al. (Lockaway). IDENTITY AND INTEREST OF AMICUS Pacific Legal Foundation is a nonprofit, tax-exempt corporation organized under the laws of California for the purpose of litigating matters affecting the public interest at all levels of the state and federal courts. Representing the views of thousands of members and supporters nationwide, PLF is an advocate of individual rights, including the fundamental right to own and make productive use of private property. To this end, PLF attorneys have litigated several landmark regulatory takings cases before the United States Supreme Court, including Palazzolo v. State of Rhode Island, 533 U.S. 606 (2001), Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997), and Nollan v. California Coastal Commission, 483 U.S. 825 (1987). PLF attorneys have appeared frequently before this Court and the California Supreme Court, both as counsel of record and as amicus curiae, in cases involving regulatory takings claims. See, e.g., San Remo Hotel v. City and County of San Francisco, 27 Cal. 4th 643 (2002); Santa Monica Beach v. Superior Court, 19 Cal. 4th 952 (1999); Kavanau v. Santa Monica Rent Control Board, 16 Cal. 4th 761 (1997); Landgate, Inc. v. California Coastal Commission, 1

5 17 Cal. 4th 1006 (1998); and 152 Valparaiso Associates v. City of Cotati, 56 Cal. App. 4th 378 (1997). PLF seeks to provide this Court with an additional perspective on the relevance oflandgate, Inc. v. California Coastal Commission and its progeny to Lockaway's takings claim, in light of the United States Supreme Court's decision in Lingle v. Chevron USA, Inc., 544 U.S. 528 (2005). Because Alameda County relies heavily on Landgate in arguing that the takings analysis of the court below was in error, and yet Lingle established that Landgate s relevance is limited to substantive due process claims, the possibility exists that this case could introduce even more confusion and uncertainty into California's regulatory takings case law. It is in the interest of all Californians to recognize that Landgate and its progeny, turning as they do on the Court's analysis of whether regulatory actions substantially advance legitimate state interests, are inapplicable to regulatory takings claims in the aftermath of Lingle. Instead of consulting Landgate, California courts should follow the procedure employed by the court below, and resolve takings issues by applying the ad hoc, factual analysis of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), to the facts that are established at trial in each case. 2

6 ARGUMENT I LOCKAWAY'S REGULATORY TAKINGS CLAIM IS GOVERNED BY PENN CENTRAL It should be emphasized at the outset that Lockaway's regulatory takings claim is governed by what the United States Supreme Court has called the "polestar" of its regulatory takings jurisprudence, Penn Central Transportation Corp. v. City of New York. See Palazzolo v. Rhode Island, 533 U.S. at 633 (O'Connor, J., concurring) ("Our polestar... remains the principles set forth in Penn Central.") Penn Central requires courts to engage in a fact-intensive, case-by-case inquiry to determine whether the facts proffered at trial suggest the defendant's interference with the plaintiff's lawful use and enjoyment of its property require compensation under the Takings Clause. See Penn Central, 483 U.S. at 124. In its briefing to this Court, Alameda County quotes dicta from Lingle, 544 U.S. 528, for the proposition that, "[i]n order for mere regulatory activity to constitute a 'regulatory taking,' it has to be 'functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.' " Opening Brief at 3 (quoting Lingle, 544 U.S. at 539). This language was presumably chosen to suggest that the County's actions in this case could not have risen to the level of a taking if they were not literally the equivalent of a physical appropriation of 3

7 Lockaway's property. But this is not what Penn Central requires. Indeed, when the Lingle Court turned from its dicta concerning regulatory takings law in general and took up the specific tests the Court has developed, it noted: "[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests." Id. at 540. Penn Central set forth a number of fact-specific "relevant considerations" for courts to examine in a case-by-case determination of takings liability: The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. 438 U.S. at 124 (citation omitted). The court below scrupulously applied this analytical matrix to the facts of this case, finding that each of the Penn Central factors supported a finding of a taking. See Findings, Conclusion, and Order, Sept. 22, 2009, (Order) at Ordinarily, the factual findings of a superior court, based upon testimony and documentary evidence presented over six days of trial, should not be disturbed, barring clear indications of an abuse of discretion or lack of substantial support in the record. With only minor exceptions, the County does not argue that the findings of the court below were defective in either of these 4

8 respects. Rather, the County argues extensively that Lockaway' s takings claim should not have been decided under Penn Central at all. Rather, the County would have this Court displace Penn Central with the analysis of the California Supreme Court in Landgate, Inc. v. California Coastal Commission. See Opening Brief at 51-61; Reply Brief at But eight years ago in Lingle the same opinion cited by the County above the United States Supreme Court clarified that neither Landgate, nor cases relying on it, can have any relevance whatsoever to cases of this kind. This fatal defect in the County's argument is elaborated in the following section. II THE SUPREME COURT HAS CLARIFIED THAT LANDGATE AND LOEWENSTEIN ARE SUBSTANTIVE DUE PROCESS CASES THAT HAVE NO RELEVANCE TO THIS APPEAL Prior to 2005, a regulatory taking could be established if it was shown that a land-use regulation failed to "substantially advance legitimate state interests." See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 (1992); Nollan, 483 U.S. at 834; Landgate, 17 Cal. 4th at 1022 (all quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)); Loewenstein v. City of Lafayette, 103 Cal. App. 4th 718, 731 (2002) (quoting Landgate). However, in Lingle v. Chevron USA, the United States Supreme Court repudiated the "substantially advance" test in the context of regulatory takings. Instead, the Lingle Court concluded that "this formula prescribes an inquiry in the nature 5

9 of a due process, not a takings, test, and... it has no proper place in our takings jurisprudence." Lingle, 544 U.S. at 540. Lingle did not expressly overrule any opinion. Rather, the Court clarified that cases decided under the "substantially advance" test must be understood as employing a due process standard, which no longer has any application to regulatory takings. The significance of Lingle to the present case is that it eliminates the relevance of two decisions relied on by Alameda County in support of its argument that it should not have been found liable for a taking. In Landgate, the California Supreme Court considered the question of whether the Coastal Commission's denial of a development permit "substantially advanced some legitimate state purposes." 17 Cal. 4th at 1022 (citing Agins, 447 U.S. at 260). The Court explained that "[t]he proper inquiry is... whether there is, objectively, sufficient connection between the land use regulation in question and a legitimate governmental purpose so that the former may be said to substantially advance the latter." Id. And again, "we must determine... whether the development restrictions imposed on the subject property substantially advanced some legitimate state purposes so as to justify the denial of the development permit." Id. Applying the Agins standard, the Landgate Court found that "[t]he Commission's denial of Landgate' s permit in February 1991 did indeed appear 6

10 to substantially advance legitimate governmental interests." Id. at And again, "[i]n sum, the denial of a development permit... advanced legitimate governmental interests in minimizing erosion and unsightly development in the coastal area." Id. The property owner argued that, regardless of whether the permit denial itself substantially advanced legitimate interests, a taking had occurred because the Commission had no lawful jurisdiction over the lot-line dispute that gave rise to the denial. Id. at But our Supreme Court folded that issue into the overarching question of whether the Commission's actions complied with the Agins standard, concluding: Id. at The government agency's assertion of authority, whether or not erroneous, must advance some legitimate goverment purpose. But as discussed above, the Commission's actions in this case met this constitutional prerequisite. On its face, every aspect oflandgate was resolved by application of the "substantially advance" test, which was relegated to a substantive due process standard by the Supreme Court in Lingle, 544 U.S. at Thus, while the County is correct that Landgate remains citable authority in California, see The County asserts, without a page citation, that the Landgate Court "did, in fact, explicitly recognize the Penn Central test," and that Landgate "can only be fairly interpreted as concluding that there was no regulatory taking in that case under either test." Opening Brief at 57. But in reality, the Landgate majority mentions Penn Central only once, in dicta, in a preliminary taxonomy of alternative takings theories. Landgate, 17 Cal. 4th at Penn Central plays no role whatsoever in Landgate's legal analysis, which relies exclusively on Agins' due process standard in every respect. 7

11 Reply Brief at 43, the scope of its authority is limited to substantive due process challenges. This Court should resist the County's anachronistic attempt to resuscitate Landgate as precedential authority on issues relating to regulatory takings, since the United States Supreme Court has expressly repudiated the line of analysis employed by Landgate in that context. The County's citations to Loewenstein v. City of Lafayette suffer from the same flaw as its misplaced reliance on Landgate. The Court of Appeal in Loewenstein not only employed the same "substantially advance" due process standard as was used in Landgate, the panel frankly acknowledged that its analysis was compelled by Landgate, and that the court was "bound to follow the rationale of that decision." Loewenstein, 103 Cal. App. 4th at 721. Thus, just as the authority of Landgate itself has been shifted from takings to due process cases, the same is true of Loewenstein, whose authority is wholly derivative of Landgate's. Loewenstein, however, injected an additional error into its analysis that cannot be attributed to Landgate. Having first reiterated in a subheading that "[This] Case Is Governed by the Holding in Landgate," id. at 729, the Loewenstein panel added in dicta that "[w]hen Landgate applies, the Penn Central factors will, of necessity, be absent." Id. at 733. Given the state of takings law as it stood in 2002, the Loewenstein dicta was at least comprehensible. If a regulatory action was found to substantially advance 8

12 legitimate state interests under Landgate, there was no taking. And if there was no taking, then any inquiry into the nature of the regulation, its economic impact, or its effect on the owner's distinct, investment-backed expectations would obviously be futile, "of necessity." But once Lingle established that Landgate (and therefore Loewenstein) was decided under a due process standard, the Loewenstein dicta became nonsensical. The fact that a regulation may be found to substantially advance legitimate state interests, and therefore survives a due process challenge, no longer has any relevance at all to the independent question of whether it effects a taking under Penn Central. The court below found that the County incurred liability for a taking under Penn Central, and this Court is now charged with reviewing the adequacy of the trial court's application of the Penn Central factors to the facts that were established below. The County has, in essence, invited this Court to digress into an analysis of substantive due process under Landgate and Loewenstein, but that invitation should be declined. The trial court already considered and rejected Lockaway's substantive due process claim, and that part of the holding was not appealed. See Order at This Court should not become the first in the nation to rule that a regulation's failure to violate substantive due process insulates it from a challenge under the Takings Clause. 9

13 CONCLUSION For the foregoing reasons, PLF respectfully urges this Court to AFFIRM the ruling of the superior court that Lockaway suffered a temporary regulatory taking of its property, for which it is entitled to just compensation from the County. DATED: August 29, Respectfully submitted, Attorney for Amicus Curiae Pacific Legal Foundation

14 CERTIFICATE OF COMPLIANCE Pursuant to California Rule of Court 8.204(c)(1), I hereby certify that the foregoing BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PLAINTIFFS AND RESPONDENTS LOCKAWAY STORAGE, ET AL. is proportionately spaced, has a typeface of 13 points or more, and contains 2,123 words. DATED: August 29, 2012.

15 DECLARATION OF SERVICE BY MAIL I, LAURIE E. WHITE, declare as follows: I am a resident of the State of California, residing or employed in Sacramento, California. action. I am over the age of 18 years and am not a party to the above-entitled My business address is 930 G Street, Sacramento, California On August 29, 2012, true copies of BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PLAINTIFFS AND RESPONDENTS LOCKAWAY STORAGE, ET AL. were placed in envelopes addressed to: Timothy Vartkes Kassouni 555 Capitol Mall - Suite 900 Sacramento, CA Attorney for Plaintiff and Respondent Lockaway Storage Robert George Crow Boomazian, Jensen & Garthe P. 0. Box Oakland, CA Attorneys for Defendant and Appellant County of Alameda Brian Edward Washington Office of County Counsel 1221 Oak Street - Suite 450 Oakland, CA Attorneys for Defendant and Appellant County of Alameda

16 Rick William Jarvis Jarvis Fay, Doporto & Gibson 492 Ninth Street - Suite 310 Oakland, CA Attorneys for Defendant and Appellant County of Alameda Clerk of the Court County of Alameda Amador Street Hayward, CA Clerk of the Court California Supreme Court 350 McAllister Street San Francisco, CA (FOUR COPIES) which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox regularly maintained by the United States Postal Service in Sacramento, California. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed this 29th day of August, 2012, at Sacramento, California. 9 LAURIE E. WHITE 2