Our Amicus Brief in Pratt Construction Co. v. California Coastal Commission

Today, on behalf of the Western Manufactured Housing Communities Association, we (me and my Damon Key colleagues Christi-Anne Kudo Chock and Matt Evans) filed an amicus brief brief urging the U.S. Supreme Court to accept for review the California Court of Appeal's decision in Charles A. Pratt Const. Co. v. California Coastal Comm'n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (slip opinion available here).  Our brief is posted here.

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here.

The two Questions Presented by the cert petition involve whether the ad hoc Penn Central test for whether government action effects a regulatory taking of property can be reduced to bright-line rules, and whether, under the Williamson County ripeness rules, a property owner must continue to pursue a a development application when the reviewing agency makes it clear that denial of the application is the "only appropriate course."

On the Penn Central issue, our brief argues:

Because [the Penn Central] framework eschews any "set formula" and relies instead on "essentially ad hoc, factual inquiries," it is, by its very nature, incapable of being subject to the rigid "20 percent is enough value" per se rule established by the California court. The decision below ignored the requirement of a "weighing of all the relevant circumstances," and established a bright-line rule focused solely on economic impact: when the government’s denial of a development proposal leaves a property owner with no more than 20 percent (or as little as 1120 square feet) of her land available for development, the remaining two Penn Central factors become irrelevant. This arbitrary rule is apparently based on nothing more than caprice, since the court below offered no analysis or rationale in support. Lacking this Court’s clarification, the default regulatory takings test has become a standardless exercise in judicial intuition, hidden behind a gloss of objectivity.

On the Williamson County issue, we argue:

The final decision rule was not intended to require a search for some metaphysical future time when the government finally admits its decision about the possible uses of the plaintiff's property is utterly and absolutely unchangeable. See, e.g., MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 350 n.7 (1986) (“[A] property owner is of course not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain [a final] determination[.]”) (citing Williamson County, 473 U.S. at 205-06 (Stevens, J., concurring)); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 920 F.2d 1496, 1507 (9th Cir. 1990) (reversing trial court’s dismissal of claim because city’s position was final enough to make the case ripe for review). Instead, the rule should take into account the reality of the land use planning and entitlement process where development applications are not blindly submitted by property owners, reviewed by government planners,
and then either accepted or rejected outright. The land use entitlement process is neither cheap, nor easy. Consequently, property owners most often work with government officials before, during, and after a development application is submitted to tailor the proposal to insure that any government concerns are answered, and to maximize the chances the landowners' desires are met.

Where, as in the case at bar, a property owner submits a detailed development proposal, consults with the government for years, proposes multiple alternatives for development, and the government responds that denial of the application is the "only appropriate course," then its denials are final enough for a court to evaluate, and final enough to allow the landowner to get past "Go" and present its case.

The Coastal Commission's Brief in Opposition is due January 16, 2008.