Suitum v. Tahoe Regional Planning Agency	.
Brian W. Blaesser, H. Bissell Carey, III, Daniel R. Mandelker	Author Info

Abstract

[BRIAN W. BLAESSER, Robinson & Cole, One Boston Place Boston, Massachusetts 02108, (617) 557-5900 was Counsel of Record. H. BISSELL CAREY, III, of the same firm, was also on the brief and DANIEL R. MANDELKER, Stamper Professor of Law, Washington University in St. Louis, Campus Box 1120, St. Louis, Missouri 63130, (314) 698-7233, was Of Counsel. The Argument portion of the brief is reproduced here. Footnotes are omitted.]

ARGUMENT

Once an application is submitted, the applicant must pursue all other required approvals related to that application to enable the decision maker to arrive at a "final, *11 definitive position" as to the application of the regulations to the plaintiff's land. Hamilton Bank, supra, at 191. Mrs. Suitum's building permit application did not satisfy this requirement because the building permit could not issue under TRPA's land use regulations.

This Court again addressed the application requirement in MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, reh'g denied, 478 U.S. 1035 (1986). There the plaintiff had submitted one subdivision application and the county had rejected it. Nevertheless, the Court stated that it was not clear the county would not allow "some development," id. at 351-52, and explained that the history of the case indicated "not that future applications would be futile, but that a meaningful application had not yet been made." Id. at 352 n. 8. In addition, the Court stated that "[r]ejection of exceedingly grandiose plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews," suggesting that reapplication may be necessary before a court can determine the extent of economic injury. Id. at 353 n. 9 (emphasis added).

Amicus curiae believes the tension between the Agins-MacDonald rule that a landowner must submit one "meaningful" application and the Hamilton Bank rule that a landowner must utilize all available administrative relief at the local level, creates a weakness in ripeness law that many local governments have exploited to frustrate as-applied takings claims in federal courts. We believe the Court should resolve this tension and create a more precise and fair basis for determining when federal courts have jurisdiction in takings cases.

II.	THE COURT SHOULD RESOLVE THE TENSION BETWEEN THE AGINS-MACDONALD RULE, THAT A LANDOWNER MUST SUBMIT AT LEAST ONE "MEANINGFUL" APPLICATION FOR APPROVAL, AND THE HAMILTON BANK RULE, THAT A LANDOWNER MUST UTILIZE ALL AVAILABLE ADMINISTRATIVE RELIEF AT THE LOCAL LEVEL.
A.	Simplify the One Application Rule

The MacDonald court no doubt thought that by elaborating on the Agins rule to say that rejection of "grandiose development" plans is not enough and that reapplication is necessary, it was adding clarification to the ripeness doctrine. However, in attempting such clarification the MacDonald Court ignored the realities of land use control and, consequently, created an agonizing choice for the landowner. The reality is that what is "grandiose" and what is "meaningful" within the limits of a local planning and zoning program is a matter of judgment. Because of the Agins-MacDonald and Hamilton Bank rules, the landowner whose development proposal has been denied, does not know what to do. Should the landowner "reapply" with something less ambitious, or apply for relief from the land use agency? If the landowner decides to reapply, the landowner does not know how many times to reapply--risking that a court will decide that her project is "grandiose" or that her application is not "meaningful" no matter how many times it is rejected, and require her to apply again. Neither is it clear who has the burden of proof to show that the reapplication process has been exhausted.

Amicus curiae submits its brief on behalf of an association of planners, many of whom work for local governments. Many other planners who belong to the association work for members of the development community. In fairness to the development community, it must be recognized that the reapplication requirement invites local government to create a more complicated and time consuming review and approval process. It is, in fact, an open invitation for some local governments to do mischief. Unscrupulous officials can and often do easily assert, after the fact, that they "would have been willing" to consider an intensity of use or an alternative type of use that the landowner never proposed. This is plainly unfair and an abuse of the reapplication rule and is why such a rule is unrealistic and should no longer be required to demonstrate ripeness for adjudication.

Amicus curiae submits that, as discussed below, the determination of when "enough is enough" should not be left to the local governments to decide. Rather, it should be for the landowner or developer who must weigh the risks of litigation versus another application proposal to decide whether in fact to contest the decision rendered after the first application. Unless the Court's ruling in the case sub judice resolves this tension between the Agins-MacDonald rules, that a landowner must submit a "meaningful" plan for approval, and the Hamilton Bank rule, that a landowner must utilize all available administrative relief at the local level, landowners will continue to be faced with an agonizing and unfair choice. Put simply, if the landowner seeks administrative relief before reapplying with a less "grandiose" project, the reapplication requirement of the ripeness rule will, in all likelihood, bar the landowner's takings claim. That surely is not the result that this Court intended under the "finality" requirement of the ripeness doctrine.

B.	The Reapplication Rule Is Irrelevant to Due Process and Equal Protection Claims.

In MacDonald, the Court stated that "[o]ur cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it." MacDonald, 477 U.S. at 351. Many lower courts have focused upon this sentence and, where they have found a takings claim to be unripe, have dismissed substantive due process and equal protection claims as equally unripe. See River Park, Inc. v. City of Highland Park, 23 F.3d 164 (7th Cir.1994); Acierno v. Mitchell, 6 F.3d 970 (3d Cir.1993); Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375 (9th Cir.), cert. denied, 488 U.S. 851 (1988); Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.), modified, 830 F.2d 968 (9th Cir.1987), cert. denied, 484 U.S. 1043 (1988); Unity Ventures v. County of Lake, 841 F.2d 770 (7th Cir.), cert. denied, 488 U.S. 891 (1988); Ochoa Realty v. Faria, 815 F.2d 812 (1st Cir.1987); Golemis v. Kirby, 632 F. Supp. 159 (D.R.I.1985). Other courts, however, have declined to apply the reapplication rule. See Carroll v. City of Prattville, 653 F. Supp. 933 (M.D.Ala.1987); Oberndorf v. City and County of Denver, 900 F.2d 1434 (10th Cir.), cert. denied, 498 U.S. 845 (1990).

The Court of Appeals for the Ninth Circuit, following its earlier ruling in Kinzli, held in this case that Mrs. Suitum's substantive due process and equal protection claim were also premature under the ripeness doctrine. Amicus Curiae submits, however, that because substantive due process and equal protection claims challenge the rationality of a regulatory decision and do not require proof that a landowner's property has been rendered valueless by the regulation, these two claims do not require speculation as to what forms of less intensive development might have been permitted by the local government. This Court should clarify the confusion in the lower federal courts on this issue and rule that while the one application rule reasonably applies to substantive due process and equal protection claims, the reapplication rule is not relevant.

III.	HAMILTON BANK REQUIRED TAKINGS PLAINTIFFS TO APPLY FOR A VARIANCE TO MAKE THEIR TAKINGS CLAIMS RIPE, BUT THE RELATED APPROVALS NECESSARY TO MAKE A TAKINGS CASE FINAL SHOULD DEPEND ON THE TYPE OF LAND USE REGULATORY SYSTEM.

In Hamilton Bank, this Court held a takings case not final because the plaintiff had not applied for a variance from applicable subdivision control regulations. This Court's emphasis on the need for a variance has confused lower federal courts that have tried to apply Hamilton Bank. The reason is that zoning systems usually include other forms of administrative relief besides the variance, and this Court should provide guidance on when administrative relief besides a variance is necessary.

Under the traditional Euclidean zoning system, the variance was originally conceived as a "safety valve" to give relief to a landowner while protecting the ordinance from invalidation on the constitutional ground that the particular landowner's property was burdened to a greater extent than other land in the vicinity, in violation of the due process clause. The courts generally distinguish between a use variance and an area variance. The area variance fits the notion that was originally intended in the State Standard Zoning Enabling Act (SSZEA) promulgated by the U.S. Department of Commerce in 1926. It authorizes departures from ordinance restrictions on the construction or placement of buildings and other structures. In other words, the area variance allows adjustments to the requirements for yards, height, frontage, setbacks and similar dimensional aspects. A use variance quite simply permits a use that is otherwise prohibited in the particular zoning district. See, e.g., City of Merriam v. Bd. of Zoning Appeals of the City of Merriam, 748 P.2d 883 (Kan.1988).

Traditional zoning systems also usually include another form of administrative relief, known as a "conditional use" or "exception." A conditional use is a use authorized by the zoning ordinance if certain criteria are met, such as a requirement that the use be compatible with uses in the surrounding area. The conditional use is not a safety valve. It is not appropriate to require a takings plaintiff to ask for an amendment, as some federal courts require, because an amendment is a legislative, not an administrative, act. See, e.g., Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 938 F.2d 153 (9th Cir.1991).

There are also land use systems based on what is known as "performance" zoning. Performance zoning is a flexible zoning technique designed to permit maximum development on a site in a manner that minimizes impacts upon neighboring uses and systematically avoids the wastage of land and the destruction of natural resources. Under performance zoning, each tract of land is considered unique--a function of its size, shape, and natural features. Unlike conventional zoning, which controls development by means of rigid lot size, setback, and housing regulations, performance zoning controls intensity of development with standards that set maximum density, impervious surface coverage, and minimum open space, or buffer yards. For example, in the residential land use context, performance zoning utilizes two key elements: (a) bufferyard standards that provide a range of options to a developer; and (b) housing-type options based upon site capacity analysis. Flexible bufferyard provisions enable a developer to build at varying land use intensities on a particular site without significantly impacting neighboring land uses. Housing-type options based upon site capacity analysis free the developer of the restrictions in sizes and types of housing under conventional zoning districts and enable the developer to provide housing at various sizes and scales of units in response to a fluctuating housing market, subject to performance criteria. In this type of regulatory system, "variances" are not typically relied upon as a relief or adjustment mechanism. Rather, the municipality simply decides to give or withhold approval as part of an administrative decision making system.

It is important, therefore, that the extent to which approvals relating to an application must be pursued is assessed within the context of the particular type of land use system, whether it be based on a Euclidean zoning system, a performance zoning system, or some other type of land use control system. Transfer of development rights (TDR) is simply another form of administrative relief available in many zoning systems, including traditional and performance zoning. Transfer development rights are well recognized in many jurisdictions as an integral component of the local government's overall land use regulatory system, particularly in efforts to preserve agricultural lands and natural resource areas. In New Jersey, for example, the Pinelands TDR program has made it possible to mitigate the effects of regulations enacted to preserve unique resources of the pine-oak forest and wild and scenic rivers, which include habitats for many rare, threatened and endangered plant and animal species. In addition to preserving these resources, TDR regulations protect the seventeen-trillion-gallon Cohansey aquifer, believed to be one of the largest untapped sources of pure water in the world.

Many local governments have also enacted TDR programs to save open space. Programs can be found in Malibu and Monteray Counties, California, and cities and towns in Florida, New Jersey, Vermont, Montana and Pennsylvania. For example, the 3,100 acre special study area in the Cross Creek region of Alachua County, Florida, with its exceptional wetlands and upland habitat areas, has been saved through the use of TDR.

Another major area in which governments have put TDR to work to save critical resources while preserving property rights is landmarks preservation. Private property owners, developers, planners and preservationists all benefit by the use of TDR in landmarks preservation. The use of TDR today enables future generations to experience and appreciate our historic resources.

In short, over the last 30 years TDR programs to preserve critical natural resources, open space and landmarks have become important and integral components of land use planning and regulatory programs in this country.

IV.	THIS COURT SHOULD RECOGNIZE A FUTILITY EXCEPTION TO THE RIPENESS RULE AND SHOULD REQUIRE COURTS TO APPLY IT AFTER A PLAINTIFF HAS MADE ONE APPLICATION FOR A LAND USE APPROVAL OR ADMINISTRATIVE RELIEF.

This Court, of course, has recognized that a landowner is not required to use "unfair" procedures or to make "futile" applications. Hamilton Bank, supra, at 205-206 (Stevens, J., concurring). However, this Court seems to be unaware of the importance of exceptions to the ripeness doctrine or the impact they could ultimately have on the doctrine's scope and effect. Amicus curiae submits that the major difficulty is that this Court sees more certainty and less discretion in the land use control process than actually exists, and views its final decision requirement as a simple requirement, easily met. Nothing could be further from the truth in a system where judgments are qualitative and administration requires the exercise of substantial discretion.

Cases in the Ninth Circuit have developed the futility exception most fully. Kinzli v. City of Santa Cruz, 818 F.2d 1449, amended, 830 F.2d 968 (9th Cir.1987), cert. denied, 484 U.S. 1043 (1988). This case held the futility rule applies after a plaintiff has made one application or an application for a variance.

It is respectfully submitted that the "futility" exception should always apply after one application has been made for a land use approval or administrative relief. In addition, the "one meaningful" application suggested in MacDonald, because it has been abused by many local governments and misinterpreted by the lower courts, should not be used to gauge whether the futility exception is satisfied. Rather, the finality requirement should be applied reasonably to recognize that a local government's position on the nature and intensity of development can be determined from factors other than repeated applications and denials. These factors should include:

1. Site feasibility studies (i.e., environmental)
2. Statements of officials before and during the application process
3. Local land use policies and regulations
4. The history of zoning and other land use decisions in the community
5. The nature of surrounding land uses.

A.	Site-Specific Studies, Including Environmental Studies

Often a land use agency will reject a development because site conditions make it ineligible for approval. For example, an ordinance may allow approval of a conditional use only if services available to the site, or adequate. If a land use agency rejects a proposal because services at the site are inadequate, the applicant should be able to show that further application is futile because services are adequate yet the agency refused to give approval.

B.	Statements of Officials Before, During and After the Application Process

Local zoning officials often make statements on pending land use applications, either during a hearing or in public. These statements can demonstrate that further application is futile, once land use agency has rejected an application.

C.	Local Land Use Policies and Regulations

Often a land use agency will reject a land use application because of a local land use policy continued either in a comprehensive plan or in development regulations. Unless there is some evidence that the municipality may be willing to change the policy, further application will be futile.

D.	The History of Zoning and Other Land Use Decisions in the Community

The rejection of a plaintiff's development application may simply be part of a pattern of similar rejections in the community. For example, the application may be for low-cost housing and the applicant may be able to show the community has regularly rejected applications for such housing. Evidence of this also should be enough for a futility holding.

E.	The Nature of Surrounding Land Uses

The nature of surrounding land use is often critical to the success of a land use application, such as an application for a conditional use. If an application is rejected in this kind of case because the land use agency claims surrounding uses are incompatible, but the applicant can show they are compatible, further application will be futile and the claim should be ripe.

V.	THE COURT SHOULD ELIMINATE THE SECOND PRONG OF THE RIPENESS DOCTRINE REQUIRING THE LANDOWNER TO HAVE SOUGHT AND BEEN DENIED JUST COMPENSATION THROUGH AVAILABLE STATE PROCEDURES AND ALLOW LANDOWNERS WITH REGULATORY TAKINGS CLAIMS TO PURSUE THEIR FEDERAL REMEDY IN FEDERAL COURT.

When the Supreme Court first adopted the ripeness rules in Hamilton Bank, it held that one prong of the doctrine requires takings plaintiffs to seek compensation in state court if it is available. Lower federal courts have abused this requirement. Some courts require a showing that state courts will grant a compensation remedy. See, e.g., Reahard v. Lee County, 30 F.3d 1412 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1693 (1995); Silver v. Franklin Township Bd. of Zoning Appeals, 966 F.2d 1031 (6th Cir.1991); Ochoa Realty Corp. v. Fans, 815 F.2d 812 (1st Cir.1987). Other courts bar plaintiffs from federal court even when it is not clear a state court remedy is available. They hold a plaintiff must attempt to seek compensation in state court until the state court holds the compensation remedy is unavailable. See, e.g., Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84 (2d Cir.1992), cert. denied, 507 U.S. 987 (1993); Estate of Himelstein v. City of Fort Wayne, 898 F.2d 573 (7th Cir.1990); East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb County Planning & Zoning Comm'n, 896 F.2d 1264 (11th Cir.1989).

These holdings effectively drain the ripeness rules of any meaning. They prevent federal courts from ever reaching the final decision issue because, under this view, a takings plaintiff must seek compensation in state court until that court clearly says it will not entertain a compensation remedy.

Some federal courts take an even more extreme position on the availability of a state compensation remedy. They hold that takings plaintiffs must sue in state court under the implied federal constitutional action for compensation created in First English. Tan v. Collier County, 56 F.3d 1533, 1537 n. 23 (11th Cir.1995); Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161 (9th Cir.1993); Northern Va. Law School, Inc. v. City of Alexandria, 680 F. Supp. 222 (E.D.Va.1988). This view of ripeness even more clearly makes the ripeness rules an absolute bar to a taking remedy. The federal constitution is always actionable in state court. If takings plaintiffs must always sue in state court first on the federal remedy, they will never establish federal court jurisdiction over a takings claim.

This problem becomes even more serious if a takings plaintiff cannot return to federal court once a state court adjudicates the takings claim. A plaintiff usually is barred from relitigating a state case in federal court under res judicata and collateral estoppel principles. An exception exists when a federal court forces a plaintiff into a state court by abstaining, but it is not clear whether it applies when ripeness rules force a plaintiff into state court. Compare Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299 (11th Cir.1992) (exception applies), with Palomar Mobilehome Park Ass'n v. San Marcos, 989 F.2d 362 (9th Cir.1993) (contra).

Amicus curiae submits that the rule that takings plaintiffs must first sue in state court for compensation under the federal constitution is incorrect. When this Court first adopted the ripeness rules, there was no remedy for compensation in federal courts. Indeed, this Court adopted ripeness rules to avoid deciding whether a federal compensation remedy is available. In the absence of a federal compensation remedy, it perhaps made sense to require takings plaintiffs to seek a state compensation remedy first.

This situation has now changed. In 1987, in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 302 (1987), this Court held that a remedy for compensation in takings cases is available under the federal constitution. Federal courts should not require takings plaintiffs to go to state court to seek compensation before taking advantage of this federal remedy.

A Ninth Circuit panel has now held that the availability of a compensation remedy in state court under First English does not satisfy the requirement that a takings plaintiff must sue for compensation first in state court. Dodd v. Hood River County, 59 F.3d 852 (9th Cir.1995). The court held that federal ripeness rules require the availability of a state compensation remedy. It stated that "to hold that a taking plaintiff must first present a Fifth Amendment claim to the state court system as a condition precedent to seeking relief in a federal court would be to deny a federal forum to every takings claimant." Id. at 860. The court was "satisfied that Williamson County may not be interpreted to command such a revolutionary concept and draconian result." Id. at 861.

This issue is important in Suitum because forcing the plaintiff to seek a remedy under First English in state court will make her case unripe even though she later satisfies the final decision rule. This Court should follow the holding in Dodd in order to make it clear that plaintiffs in as-applied takings cases can obtain a ruling in federal court on the federal takings law that this Court has developed so extensively in recent years.

CONCLUSION

The Court's ruling in this case should resolve the tension between the Agins- MacDonald rule, that a landowner must submit a "meaningful" plan for approval, and the Hamilton Bank rule, that a landowner must utilize all available administrative relief at the local level. The Court's clarification and guidance on the "finality" prong of the ripeness doctrine will promote the rational, efficient and predicable and beneficial use of real property in concert with the public interest.