Real Estate & Property Law

Reply In Support Of Petition In Pratt v. Cal. Coastal Comm'n - Penn Central And Williamson County

By Robert Thomas (inversecondemnation.com)

The property owner has filed its Reply in Support of Petition for a Writ of Certiorari in Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The petition seeks review of the California Court of Appeal's opinion reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008), available here.

The issues presented in the case involve the Penn Central ad-hoc test for regulatory takings, and the "final determination" prong of the Williamson County ripeness rule. The Reply brief argues:

The Brief in Opposition is liberally salted with Respondent California Coastal Commission's assertions of what it refers to as the "facts" (e.g., pp. 5, 11) as well as disparagement of the presentation in the Petition as having "no evidence" (e.g., pp. 7, 11) behind it.

The Brief in opposition thus highlights the problem that call for the Court's review: there has been no trial to establish the facts and the courts below turned what should have been an evidentiary trial into assumptions supposedly made as a matter of law. Building on those deficiencies in the lower courts' rulings, the Commission's brief substitutes self-serving prose and misdirected invective towards Petitioner's counsel in pace of a due process proceeding in which the facts of the controversy -- not just counsel's argumentation -- are presented as proper evidence to an impartial trier of fact.

In light of the standard the Court has established for deciding regulatory taking cases (i.e., "ad hoc" factual determinations [see Pet., pp. 10-18]), an inquiry into evidence is essential. Lower courts that are hostile to private property rights fail or refuse to understand that basic notion, thus showing the need for corrective action by this Court.

As shown in the Petition, the Court's decisions hold that each regulatory taking case must be decided "ad hoc"on its own facts. (E.g., Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 [1978].) Of necessity, that can only be done after trial, with the presentation and evaluation of evidence.

Reply at 1-2.

Disclosure: we filed an amicus brief in the case for the Western Manufactured Housing Community Association, available here, which 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.

The cert petition and the other amici briefs supporting it are posted here. The Reply brief is responding to arguments made the Coastal Commission in its Brief in Opposition, posted here.

Full post as published by inversecondemnation on January 23, 2009 (boomark / email).