No.

11-299 IN THE

Supreme Court of the United States

WEST LINN CORPORATE PARK L.L.C., Petitioner, v. CITY OF WEST LINN, BORIS PIATSKI and DOE DEFENDANTS 1 THROUGH 10, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit SUPPLEMENTAL BRIEF FOR THE PETITIONER
MICHAEL T. GARONE Counsel of Record D. JOE WILLIS SARA KOBAK SCHWABE, WILLIAMSON & WYATT, P.C. 1211 SW Fifth Ave. Suites 1600-1900 Portland, OR 97204 (503) 222-9981 mgarone@schwabe.com Counsel for Petitioner
WILSON-EPES PRINTING CO., INC. (202) 789-0096 W ASHINGTON, D. C. 20002

RULE 29.6 CORPORATE DISCLOSURE STATEMENT The Rule 29.6 Corporate Disclosure Statement in the petition for writ of certiorari remains accurate.

(i)

SUPPLEMENTAL BRIEF FOR THE PETITIONER Petitioner West Linn Corporate Park, L.L.C. (Petitioner or WLCP) respectfully submits this Supplemental Brief calling this Courts attention to a new case not available at the time of Petitioners last filing. Sup. Ct. R. 15.8 (authorizing supplemental brief for that purpose while a petition for writ of certiorari is pending). ARGUMENT In its petition, WLCP contended that state and lower federal courts have become deeply divided over whether the essential nexus and rough proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), apply to only cases in which the governmental entity has conditioned the approval of a development permit on the dedication of real property to the public or whether they apply broadly to all property exactions, including exactions requiring property owners to dedicate other goods or services to the public or to make monetary payments. (Petition, p. 3.) WLCP also contended that this deepening conflict among the courts has been engendered by confusion over this Courts decision in Lingle v. Chevron USA Inc. (Lingle), 544 U.S. 528 (2005), and whether that decision was intended to limit Nollan and Dolan. (Petition, p. 28.) On November 3, 2011, the Supreme Court of Florida issued St. Johns River Water Management District v. Koontz (Koontz), 2011 Fla. LEXIS 2617 (Nov. 3, 2011). That decision confirms both of WLCPs contentions. In Koontz, the governmental

2 entity, a water district, conditioned the approval of the property owners development permit on the completion of certain off-site improvements to the water districts property. Id. at *8. Because the property owner refused to make these off-site improvements, his development permit was denied. Id. at **8-9. After the trial court held that the water districts actions constituted a taking without just compensation due to lack of an essential nexus and rough proportionality under Nollan/Dolan, the water district appealed contending, inter alia, that (1) there could be no taking under the facts of this case because the property owner refuse[d] to agree to the governmental condition resulting in the denial of the permit, and (2) the condition it imposed did not involve a physical dedication of land but instead would have caused [the property owner] to expend money for improvement of land belonging to [the district] if accepted. Id. at 11. The Florida Court of Appeals denied each of the water districts contentions. 1 Importantly for this case, the court of appeals decided that the issue of whether Nollan/Dolan applied only to exactions of interests in real property implicitly had been decided by this Courts vacation of the California Supreme Courts decision in Ehrlich v. City of Culver, 512 U.S. 1231 (1994). Koontz, 2011 Fla. LEXIS 2617 at *12. 2 The court of appeals concluded that in the absence
See St. Johns Water Mtg. Dist. v. Koontz, 5 So. 3d 8 (Fla. Dist. Ct. App. 2009). The issue of whether a takings claim may be advanced under Nollan/Dolan where the property owners refusal to comply with the imposed conditions led to a denial of the development permit is not present in this case. Here, WLCP complied with the imposed conditions and constructed and delivered substantial off-site public improvements to respondent.
2 1

3 of a more definite pronouncement from the United States Supreme Court on this issue, the distinction advanced by the district between exactions of interests in real property as opposed to other property interests was not legally significant. Id. On November 3, 2011, the Supreme Court of Florida reversed. Regarding the issue posed by this petition, the court stated: State and federal courts have been inconsistent with regard to interpretations of the scope of the Nollan/Dolan test, even after the decisions in [City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999)] and Lingle. The divide is most clearly evident on the issue of whether the test applies to conditions that do not involve the dedication of land or conditions imposed upon the land. Koontz, 2011 Fla. LEXIS 2617 at *23. In concluding that the requirements of Nollan/Dolan were limited to exactions of real property, the Florida Supreme Court placed controlling weight on its view of this Courts recent precedents: Moreover, in Del Monte Dunes and Lingle, the United States Supreme Court specifically limited the scope of Nollan and Dolan to those exactions that involved the dedication of real property for a public use. See Lingle, 544 U.S. at 546-47; Del Monte Dunes, 526 U.S. at 702-03. Absent a more limiting or expanding statement from the United States Supreme Court with regard to the scope of Nollan and Dolan, we decline to expand this doctrine beyond the express parameters for which it has been applied by the High Court. Accordingly, we hold that under the takings

4 clauses of the United States and Florida Constitutions, the Nollan/Dolan rule with regard to essential nexus and rough proportionality is applicable only where the condition/exaction sought by the government involves a dedication of or over the owners interest in real property in exchange for development approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owners interest in the real property subject to the dedication imposed. Id. at *25-26. As argued in both the petition and WLCPs reply brief, nothing in Lingle implies, let alone decides, that the doctrine of unconstitutional exactions as applied in Nollan and Dolan is inapplicable where the government makes an ad hoc decision to require as a condition of development approval a disproportional transfer of personal property or money as opposed to an interest in real property. (Petition, p. 30; Reply, p. 10.) The portion of this Courts opinion in Lingle simply cannot shoulder the weight it is forced to bear by the court in Koontz. The same can be said for the Florida Supreme Courts citation of Del Monte Dunes, in which this Court merely stated that we have not extended the rough-proportionality test of Dolan beyond the special context of exactionsland-use decisions conditioning approval of development on the dedication of property to public use. Del Monte Dunes, 526 U.S. at 702 (emphasis added). Nothing in this Courts statement provides support for the Florida Supreme Courts unfounded notion that this Court has somehow specifically limited the application of Nollan and Dolan to exactions of only real property.

5 CONCLUSION The Florida Supreme Courts decision in Koontz underscores the importance of the issue posed by the petition in this case. Moreover, it demonstrates the deepening divide between those courts such as the Supreme Courts of California and Texas which perceive no principled reason to distinguish between disproportional exactions of personal as opposed to real property and those Courts such as the Supreme Courts of Oregon and Florida, as well as the Ninth Circuit, that erroneously perceive in this Courts decision in Lingle an unstated intent to limit Nollan and Dolan. Only this Court can decide this important conflict and bring clarity to this area of constitutional law. Respectfully submitted,
MICHAEL T. GARONE Counsel of Record D. JOE WILLIS SARA KOBAK SCHWABE, WILLIAMSON & WYATT, P.C. 1211 SW Fifth Ave. Suites 1600-1900 Portland, OR 97204 (503) 222-9981 mgarone@schwabe.com Counsel for Petitioner