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Takings Watch Newsletter -
2001 Outrage of the Month Archive


Check the quotes!

Nollan v. California Coastal Comm'n (U.S. 1987), authored by Justice Scalia, is one of the most troubling regulatory takings rulings ever. Developers' lawyers shouldn't need to distort it to suit their purposes. But don't tell that to Charles Siemon, the lawyer for the developer in Section 28 Partnership v. Martin County, Florida.

Section 28 Partnership brought a takings challenge to Martin County's refusal to amend its comprehensive plan to allow for intensive development of 636 acres currently zoned as farmland. The County denied the request for several reasons, including the land's proximity to environmentally sensitive public parkland. A Florida appeals court rejected the claim, concluding that the County's action is supported by "an overwhelming amount of evidence." The Florida Supreme Court denied reviewed.

The developer argues that the County's action is subject to heightened scrutiny under Nollan to determine whether the denial substantially advanced a legitimate public purpose. Nollan, however, addressed a compelled dedication of land, and the Nollan Court expressly tied its holding regarding special scrutiny to the dedication context, stating:

We are inclined to be particularly careful about [the word "substantially" in the "substantially advance" test] where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police power objective.

And in the 1999 Del Monte Dunes case, the Court cited both Nollan and the related Dolan case in reaffirming that it has not applied heightened Dolan/Nollan scrutiny outside the dedication context.

Enter Charles Siemon, a Boca Raton lawyer described by the local press as "frequently representing [the] development community." In his petition for certiorari seeking review by the U.S. Supreme Court, Mr. Siemon deals with the limiting language in Nollan by misquoting it, stating that Nollan asserts:

[W]e are inclined to be particularly careful about regulations which abridge property rights***.

In other words, he simply rewrote the passage in Nollan that most undermines his case. He deleted the limiting reference to dedications ("the actual conveyance of property"), substituted language more helpful to his position, and then twice attributed the false quotation to the Nollan Court. It just goes to show that when dealing with developers’ lawyers, it's always prudent for opposing government counsel to check the original sources. You never know what you'll find.


Will the Real Michael Berger Please Stand Up?

The property-rights movement is not known for its true-blue consistency. But Michael Berger -- counsel of record for the landowners in the Tahoe moratorium case pending before the U.S. Supreme Court (see July 2001 Takings Watch) -- is setting a new standard for 180-degree switcheroos.

Mr. Berger's cognitive dissonance arises out of the Supreme Court's ruling in First English Evangelical Lutheran Church v. County of Los Angeles (1987), which holds that where a court finds a regulatory taking, invalidation by itself is not a sufficient remedy. In other words, just compensation must be paid for the period of time the regulation was in effect. The ruling, however, is silent on the question of when a regulation constitutes a taking because the First English Court assumed arguendo that the regulation before it worked a taking. Indeed, the First English Court stated unequivocally that the lower court rulings had "isolat[ed] the remedial question for [its] consideration." On remand, the state court concluded that the challenged regulation did not constitute a compensable taking.

Not letting the truth stand in the way of a good story, Mr. Berger argues in his Tahoe brief that First English worked a sea change in liability standards for regulatory takings. He reads the case as holding that any temporary development delay, no matter how reasonable, can constitute a compensable taking. Never mind the fact that the First English Court defined temporary takings, not as temporary restrictions on land use, but rather as "those regulatory takings which are ultimately invalidated by the courts." The Tahoe Regional Planning Agency does a masterful job of rebutting Mr. Berger's nonsense, showing that First English has nothing to do with liability standards, but instead is a case about remedies.

So far, this sounds like nothing more than another distortion of the case law by lawyers for the property-rights movement. But here's the kicker. Mr. Berger was also counsel of record for the landowners in First English, and when that case was argued before the Court, he had a much narrower view of its significance. In his brief on the merits in First English, Mr. Berger insisted -- in a major heading of the brief, no less -- that "The Only Issue In The Case At Bench Is The Proper Remedy For A Regulatory Taking." He also emphasized in his First English brief that "this case contains no issue of whether a taking occurred.” CRC highlighted this anomaly in its amicus brief in the Tahoe case filed on behalf of state and local officials across the country.

It is not entirely clear when Mr. Berger changed his mind and mistakenly concluded that First English goes beyond remedial issues and works a sea change in liability standards. When the Court rules in the Tahoe case, it should escort him back to his original, narrow, and correct reading of First English.


Some say ignorance is bliss, but certain developer lawyers are turning ignorance into an art form. Consider a contribution to a land-use listserve moderated by the American Bar Association. In response to a request for information on treatises that discuss sprawl and smart-growth initiatives, one Louisville, Kentucky real-estate lawyer responded by denying that sprawl is a serious problem. He then stated: "I do not recommend reading a whole lot of books on the subject. * * * The only reason to read the books is to learn the language of Smart Growth so that you can use it to help your developer-clients more easily provide people with their dreams." 

We're all entitled to our respective opinions, but regardless of where you stand on sprawl and smart growth, it takes a special kind of head-in-the-sand arrogance for a lawyer to discourage other lawyers from educating themselves about an important social policy issue. If we're ever going to resolve the question of how to balance community rights with individual rights in the debate over sprawl, all stakeholders need to stay informed. Let's hope this remark represents a decidedly minority view among ABA members who represent developers.


In last month's Outrage column, we wrote about the dirty-pool practices of some lawyers for the so-called property rights movement. This month’s Outrage returns to this theme by drawing from Justice Ginsburg's dissent in Palazzolo v. Rhode Island (joined by Justices Souter and Breyer). It is exceedingly rare for U.S. Supreme Court Justices to upbraid the attorneys appearing before them for misrepresentation, but Justice Ginsburg's dissent accuses Pacific Legal Foundation (PLF), counsel for Palazzolo, of exactly that.

PLF’s misrepresentation concerned the issue of whether Rhode Island might allow Palazzolo to build more than one home on his property. Palazzolo argued to the Supreme Court that his claim is ripe because the extent of permitted development is clear: one single family home and nothing more. In its brief on the merits, Rhode Island countered that the case is unripe, in part because Palazzolo might be able to build more than one house and failed to apply for permission to do so. The majority rejected the State's contention because the State failed to make this point clearly in its opposition to Palazzolo's petition for certiorari.

In dissent, Justice Ginsburg shows that the majority fell victim to a PLF "bait-and-switch maneuver," a con game that "moved the pea to a different shell." 121 S. Ct. at 2476. Here's how PLF’s con game worked. In state court, Palazzolo pursued only a per se takings claim under Lucas, arguing that Rhode Island's wetland protections denied him all use of the property. Rhode Island responded in state court that the claim was meritless because Palazzolo may build at least one house on the property. Because Palazzolo pursued only a Lucas claim based on an alleged denial of all use, Rhode Island had no incentive in state court to show that Palazzolo could build more than one home. When PLF took over the case on appeal to the U.S. Supreme Court, it argued for the first time that there was a taking under Penn Central’s multifactor test, thereby elevating the significance of whether Palazzolo could build more than one home. PLF then falsely asserted in its cert. petition that the record was clear that Palazzolo could build only one home and nothing more. Rhode Island did not take issue with the false assertion in its opposition to PLF's cert. petition. Although the majority ruled that the State thereby "waived" any objection to this "fact," Justice Ginsburg explains that this "fact" was never found by any court, but rather "was simply asserted, inaccurately" by PLF.

Justice Ginsburg chillingly concludes: "This Court's waiver ruling thus amounts to an unsavory invitation to unscrupulous litigants: Change your theory and misrepresent the record in your petition for certiorari; if the respondent fails to note your machinations, you have created a different record on which this Court will review the case.” 121 S. Ct. at 2476.

The lesson for state and local governments is clear: Be on the lookout for false factual statements and bait-and-switch maneuvers by lawyers for takings claimants. And if called on to prepare an opposition to a petition for certiorari, expressly contest any factual misrepresentations made in the cert. petition. Otherwise, they may come back to haunt you.


All too often, lawyers for the so-called "property rights" movement play dirty pool. It's especially gratifying when courts take them to task for doing so. Consider a recent example from Machipongo v. Commonwealth of Pennsylvania, a takings challenge to a mining ban designed to protect a fragile watershed in central Pennsylvania. Washington Legal Foundation (WLF), a "property rights" law firm, filed an amicus brief in Machipongo on June 29, 2001, many weeks after it was due.

Why did it wait until June 29? It candidly conceded that it delayed its filing in Machipongo until the end of the U.S. Supreme Court's term so it could discuss the Court's ruling in Palazzolo, handed down on June 28. As a result of its strategic delay, WLF could have gained a clear advantage over amici supporting the Commonwealth.  In response to oppositions filed by CRC and others, the Pennsylvania Supreme Court didn't let WLF get away with this chicanery and bounced its brief, a small but satisfying victory for those of us who play by the rules.

JULY 2001

“The notice rule is dead, except in what remains of [Justice] Stevens’ mind. ***
Stevens doesn’t know what he thinks about this or anything else.”

Pacific Legal Foundation (PLF), counsel to Anthony Palazzolo, reacting to the ruling in Palazzolo v. Rhode Island in a listserve discussion hosted by the American Bar Association (June 29, 2001)

We're all in favor of robust debate, and we don't shy away from strong criticism of bad Supreme Court opinions, but this kind of gratuitous, personal insult of a Supreme Court Justice by PLF is beyond the pale. We don't recall the plaintiffs' bar hurling insults at Justice Stevens when he provided the critical fifth vote in favor of the landowner just two years ago in City of Monterey v. Del Monte Dunes at Monterey, Ltd. While we think Justice Ginsburg authored the stronger dissenting opinion in Palazzolo, Justice Stevens’s opinion contains valuable insights that warrant a careful reading. PLF's boorish remarks easily qualify as our Outrage of the Month.

JUNE 2001

Last month’s Takings Watch reported that Senator Jeffords's decision to become an Independent tolled the death knell for federal takings legislation being pushed by developer lobbyists. But don’t take our word for it. Disturbing confirmation came in a recent Washington Post report that a “lobbyist for the Louisiana Home Builders Association who, on his way to see Sen. Mary Landrieu (D-La.), popped his head into Jeffords’s office and shouted he wanted to kill the senator.” According to the Post, this and other death threats have prompted the Capitol Police to provide Senator Jeffords with extra security. It was bad enough when the National Association of Home Builders described its bill as a “hammer to the head” of state and local officials. If you need death threats to promote legislation, chances are you’re pushing a bad bill.

MAY 2001

National Paper Reprints Lie About New London Redevelopment Project

The so-called "property rights" movement propels itself by spreading outrageous and mostly untrue stories of government abuse of landowners. Too often the media publicizes these horror stories without checking their facts. A perfect example is a recent article and editorial by USA TODAY, accusing New London, Connecticut of throwing people out of their homes "to make room for a health club." This outrageous claim, lifted from the web site of the DC-based Institute for Justice, was simply untrue. The paper recognized this fact in a correction, but buried the correction in the fine print at the bottom of page 3. Redeveloping the impoverished New London has taken courage, vision, and commitment by local officials. Spurious reporting on these efforts does not make this work any easier.

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