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
[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
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
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
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
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
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.
“The notice rule is dead, except in what remains of [Justice]
Stevens’ mind. ***
Stevens doesn’t know what he thinks about this or anything
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.
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.
National Paper Reprints Lie About New London Redevelopment
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.