Here's the Answer Brief on the Merits, filed last week in the California Supreme Court in City of Perris v. Stamper.
That's the case in which the court is considering whether, in the context of determining just compensation, the judge or the jury gets to decide whether a city's exaction is something that is so reasonably likely to happen that it can be taken into account. That, of course, raises the Nollan/Dolan issue, and although this seems like a question of law, the California Court of Appeal concluded that, on the whole, the jury gets this one. We reported on the Court of Appeal decision here.
This brief responds to the Opening Brief, filed last month by the City (and posted here), which argues that the issue is one reserved solely to judges. The Answer Brief makes two points:
- The court can solve this case without ever having to reach the more tricky judge-or-jury issue, since the exaction question is really one of project influence. As we know, evidence of project influence -- the impact of the project iteself on valuation of the parcel being taken -- are not admissible to prove just compensation. Here, the property owner asserts that "the very project for which the City brought this condemnation action ... is the only reason that the City would ever even consider such a dedication requirement; if the City's realignment project did not exist, no dedication requirement would exist." Ans. Br. at 4 (emphasis original).
- Because the legality of the exaction is something a potential buyer would consider, it is up to the jury to determine what role consitutionality plays in the equation. Juries decide issues related to compensation.
It should not surprise you that we agree with the property owner on both issues, although it's the second issue that really grabbed our attention when the Court of Appeal made its ruling. It might initially seem counterintuitive that a jury and not a judge makes the call about the likelihood of success in challenging any exaction the City might try and impose. But buyers and sellers of land undertake this type of analysis all the time when it comes to assessing value, all without the aid of a judge making a ruling. After all, the just compensation issue is all about the fiction of what a willing buyer and a willing seller would consider in reaching a price. And they don't need a judge to make that call in the situation presented by this case.
This is an important case and one to watch. Not only is it likely the California Supreme Court will tell us more about the role of the jury in determining compensation in an ever-more-complicated land use regulatory system, it could make reaffirm its earlier pronouncements on the scope of the project rule and how "wide" and how "deep" the project is considered.
Stay tuned.
Answer Brief on the Merits, City of Perris v. Stamper, No. S213468 (Feb. 18, 2014)
