WILLIAMSON PLANNING COMM'N v. HAMILTON BANK

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ORAL ARGUMENT OF ROBERT L. ESTES, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Warren E. Burger: Mr. Estes, I think you may proceed when you are ready.

Robert L. Estes: Mr. Chief Justice, and may it please the Court:

This case comes to you after the U.S. Sixth Circuit Court of Appeals reversed the trial court judge's granting of a motion JNOV.

Our position is that there is no evidence in this case upon which a reasonable juror could have concluded that the Planning Commission in this case denied the Respondent bank with all economical viable use of its property or any economically viable use that would constitute a taking requiring compensation.

To whatever extent the property lacked economic use we say was a function of the property itself, its configuration, and the prior development of that property.

Now, to give you a brief history of this, this entire property consists of 676 acres that was purchased by a prior developer to the Respondent herein to develop into a cluster housing development around a golf course.

That was begun in 1973, at which time the developers convinced the Planning Commission to... or actually, the county commission, to pass a cluster zoning ordinance.

This ordinance did now allow greater density than one dwelling unit per acre, but it did allow you to cluster dwelling units closer together provided you preserved enough additional open space area within the same development so that you still ended up with one dwelling unit per acre.

Now, this prior developer submitted a plat, a preliminary sketch plat to the Williamson County Planning Commission in 1973 and had it approved.

That would be one of the two exhibits that have been passed out to the Court.

It's contained in the Joint Appendix at 90... at page 422, Exhibit No. 9700.

Now, at that time there was a two-step procedure by which a developer could have plats submitted and approved by the Planning Commission.

First, an initial or preliminary sketch plat would be presented which contained just generally the outline of the development, did not contain extensive engineering data.

That would be looked at and determined whether or not it generally complied with the ordinances and the regulations, and then later, before a building permit was to be issued or the developer start developing, he would have to submit a so-called final plat either of the whole development, if he desired, or a section of it if he desired to develop only a section of the development at a time.

In this case, the developer, the prior developer, submitted only sectional final plats for approval.

He got about three or four of those, or three or four sections approved through the years.

The subdivision regulations in effect in 1973 provided that though this preliminary plat was approved in '73, it only lasted one year, that approval did.

It had to be renewed yearly.

It was not renewed yearly; it was renewed several times.

There was a gap from around 1976 through 1978.

Then there was a gap again in August 1980 to November 1980.

Nevertheless, the Respondent bank herein had originally loaned approximately $900,000 to the original developers.

Through a rather complicated series of events, this Respondent bank's subsidiaries or some of the banks it was associated with, went into bankruptcy court.

This bank then bought out a greater interest through a swapping deal in this subdivision turned around... well, it got title to the property, the development at that time, but turned around and sold it back to the original developer.

He kept it another three or four years until Noember 1980, at which time he still wasn't able to develop the property out, he went under, and this Respondent bank then bought the remaining interest in this entire development that had not been fully developed.

It did not buy the original part of the development.

Now, several things occurred over the years that changed the entire situation with respect to this development that the Planning Commission had nothing to do.

We say here that the plat that the Respondent bank is relying on in this lawsuit that it filed suit on, that plat it says it's relying on complies with the 1973 regulations, and it should be allowed to continue to develop the rest of the property with the '73 regulations.

Actually, the Planning Commission had amended those regulations from time to time.

However, that plat on its face does not even comply with the original '73 regulations that the Respondent bank is claiming it's depending upon.

Unidentified Justice: Well, now, was that issue before the Board of Zoning Appeals in that 1980 appeal?

Robert L. Estes: No, Your Honor.

Unidentified Justice: It was not.

Robert L. Estes: The only issue there was whether or not the Planning Commission could apply the amended, updated regulations or whether it had to apply the '73.

Unidentified Justice: And the Commission lost--

Robert L. Estes: Pardon?

Unidentified Justice: --The Commission lost--

Robert L. Estes: That's right.

Unidentified Justice: --The Zoning Appeals decided against the Commission, did it not?

Robert L. Estes: That's right, it did.

Unidentified Justice: Is there any issue in this case whether any other state procedures should have been exhausted?

Robert L. Estes: Yes, sir, there is.

The government plans to argue that portion of it, but there is... there's inverse condemnation in the State of Tennessee that they could have relied upon.

We say they could have sought judicial review.

Unidentified Justice: Well, why didn't that 1980 appeal to the Zoning Commission satisfy any requirement of exhaustion?

Robert L. Estes: Because they still have judicial review, Your Honor, in state court in Tennessee.

They never sought that.

They never sought that.

In fact, that appeal to the--

Unidentified Justice: Well, you lost in the Board of Zoning Appeals, the Commission did.

Robert L. Estes: --That's right, you're right.

Unidentified Justice: Well, then, why didn't you go to a court?

Robert L. Estes: At that time... that was at the time when the prior developer submitted the October 1980 plan to the Planning Commission and it was rejected.

Now, he was immediately foreclosed upon by the bank, so that issue never got anywhere.

The Planning Commission thought the bank would come back and submit a plat that did comply with those regulations, those '73 regulations, and it would be approved, and they would go on with the development.

Instead--

Unidentified Justice: Even though the Board of Zoning Appeals had said those regulations were no good?

Robert L. Estes: --No, even though the Zoning... the amended regulations?

Unidentified Justice: Yes.

Robert L. Estes: Yes, that's right, but the--

Unidentified Justice: And you still thought that the--

Robert L. Estes: --No, no, Your Honor has misunderstood what I meant.

It is my fault.

Unidentified Justice: --This is a case one can get easily confused on I might say.

Robert L. Estes: That's right.

The Planning Commission assumed that the new developer, the bank, that foreclosed on the prior developer, would come in and present a new plat that complied with the '73 regulations.

It didn't even do that.

It submitted another plat that still didn't comply with any of the regulations.

Now--

Chief Justice Warren E. Burger: We will resume... we will resume there at 1:00 o'clock today, Mr. Estes.

Robert L. Estes: --Thank you.

Chief Justice Warren E. Burger: Mr. Estes, you may continue.

ORAL ARGUMENT OF ROBERT L. ESTES, ESQ., ON BEHALF OF THE PETITIONERS -- Resumed

Robert L. Estes: Mr. Chief Justice, and may it please the Court:

In further answer to Justice Brennan's question, I would submit that and point out there was an Attorney General of the State of Tennessee's opinion that was rendered shortly after the Board of Zoning appeals made that decision which stated in effect that the Board of Zoning Appeals did not have the jurisdiction and the power to decide that general question of law, and that was relied upon.

Furthermore, as Mr. Nebel's letter points out, later on in June of '81 to the Planning Commission, that Hamilton recognized that it needed variances in order for its plat to be approved.

That's contained in the record at page 850 of the Court of Appeals appendix in this case.

Further--

Unidentified Justice: Did it apply for them?

Robert L. Estes: --They never applied for them, Your Honor.

Unidentified Justice: What was it you were saying just before lunch, that something had been submitted to the Court?

Robert L. Estes: I was saying, Your Honor, that I understood you to ask me why the Planning Commission did not appeal the Board of Zoning Appeals decision.

Unidentified Justice: Yes, that was the 1980 one.

Robert L. Estes: That was the 1980 submission.

Unidentified Justice: Yes.

Robert L. Estes: And the--

Unidentified Justice: Was there a later submission, that's why I... by Hamilton, or by anybody?

Robert L. Estes: --Well, that earlier submission was not by Hamilton; it was by the prior developer.

Unidentified Justice: Right.

Robert L. Estes: About a month after that submission and its turn-down, the Hamilton Bank foreclosed and took over the rest of the property.

Unidentified Justice: And who made the second submission?

Robert L. Estes: Hamilton Bank, the Respondent.

Unidentified Justice: And it was turned down.

Robert L. Estes: It was turned down.

Unidentified Justice: Now, did Hamilton Bank go to the Planning Board... or not the Planning Board, I mean the--

Robert L. Estes: The Board of Zoning Appeals.

Unidentified Justice: --Yes.

Robert L. Estes: No, sir, no, sir.

Unidentified Justice: Would the Board of Zoning Appeals have had jurisdiction entertained?

Robert L. Estes: According to the State of Tennessee Attorney General's report, no.

Unidentified Justice: No.

I see.

Robert L. Estes: But there are administrative remedies that we say... state administrative remedies that Hamilton Bank could have followed but did not, and the government is prepared I think to argue that more fully.

Unidentified Justice: Yes.

All right, thank you.

Robert L. Estes: The subdivision regulations again in the Court of Appeals Appendix at page 932 and 933 provide that in order for a variance to be granted, it must be requested in writing, and that without the application of any conditions shown on the plat which would require a variance, would constitute grounds for disapproval of the plat.

So the Planning Commission had every reason to disapprove this plat simply because it was submitted not in accordance with the old '73 regulations and without having applied for a variance.

Now, going on to the comparison of the two plats that were submitted to the Court, there are six major differences.

Unidentified Justice: Before you get to that--

Robert L. Estes: All right.

Unidentified Justice: --Why is it you say that the failure to ask for a variance ends this case for the bank?

Robert L. Estes: All right, because I think we can look at the plats, all preliminary plats that were submitted earlier as well as the preliminary plat that the bank submitted in June 1981 which was turned down, and on their face they obviously do not comply with the regulations, any of the regulations, without a variance.

Unidentified Justice: And they never--

Robert L. Estes: And the subdivision regulations say that that is grounds alone for turning the plat down.

Unidentified Justice: --Well, now, what about... this is a 1983 suit, isn't it?

Robert L. Estes: Yes, sir.

Unidentified Justice: What about the principle that the plaintiff in a 1983 suit does not have to exhaust various state remedies?

Robert L. Estes: Well, sir, we take the position that they do in this case under the Fifth Amendment taking analysis.

Unidentified Justice: On the grounds if there is a remedy there can be no taking, is that it?

Robert L. Estes: Right, right.

That gets into the... that decision that I think you are referring to, the California decisions.

Going on to... if Your Honor is finished with that, going on to a comparison of the plats, the preliminary plat that was submitted in 1973 and renewed several times thereafter but which had expired before the submission in October 1980 by the predecessor developer, and in June of '81 by Hamilton Bank, there are six major differences in those plats.

They are just not plats of the same property.

First of all, during that interim the State of Tennessee, by condemnation, took a portion of the property in this subdivision, 18 1/2 acres in the bottom right hand corner of the plat.

It is referred to on the No. 9702 as the Natchez Trace Parkway.

That created tremendous problems for this development to continue in that area.

It caused two long prohibited cul-de-sacs, one of 5000 feet in length, the other of 3000 feet in length, in violation of all regulations, even the old '73 lengths.

Cul-de-sac lengths were 400 feet maximum.

They were amended and actually liberalized by allowing up to 800 feet.

Here we have two long cul-de-sacs on the plat submitted by the bank for the first time.

Secondly, or thirdly, there had been a survey error by the prior developer which was finally corrected by the bank when it submitted its June 1981 submittal.

Unidentified Justice: Well, now, the lower courts now must have rejected all these claims of these.

Robert L. Estes: I don't think the lower court rejected these claims, Your Honor.

The lower court--

Unidentified Justice: Well, you lost anyway.

Robert L. Estes: --Well, did, but I won at the end of the lower court proceeding, Your Honor, in that they granted a judgment notwithstanding the verdict.

There was a survey error that had occurred that showed up for the first time in October '80, in June '81 which took out on the right hand side of the plat, near the top, took out several lots that had theretofore been clotted as having been a part of this subdivision.

That changed the configuration.

There were areas in the original plats, five major ones, that were clearly and unequivocally marked, this parcel not to be developed until approved by the Planning Commission.

Unidentified Justice: Now, is this a recital of the eight objections of the Commission in '81?

Robert L. Estes: Ties right into them, six... it ties into six of them, Your Honor.

Unidentified Justice: Six of them?

Robert L. Estes: Six of the eight.

Unidentified Justice: Well, how many were considered by the Board of Zoning Appeals in November of 1980?

Robert L. Estes: Only one question, as far as I recall--

Unidentified Justice: Only one of the eight?

Robert L. Estes: --was considered by the Board of Zoning Appeals, and that is whether or not the Planning Commission had the right to apply the amended regulations or whether it had to apply the 1973 regulations.

That was the only question.

Unidentified Justice: And what did they say?

Robert L. Estes: Well, they said you had to apply the '73 regulations.

Unidentified Justice: And you don't agree with that.

Robert L. Estes: Well, I don't agree with it and the State of Tennessee's Attorney General didn't agree with it.

He said it didn't even have the power to decide that.

Unidentified Justice: Don't you... what relief do you ask here?

Robert L. Estes: All right.

We are asking for a recital or an opinion reinstating the trial court's decision that there can be no taking.

Unidentified Justice: I thought the trial court also enjoined you from applying the later regulations?

Robert L. Estes: That is not before this Court.

That... all right, it was--

Unidentified Justice: Well, if we reinstate the District Court's judgment, you are subject to an injunction not to apply the later regulation.

Robert L. Estes: --That's right.

That was appealed and a cross appeal, if Your Honor please, to the Sixth Circuit, but before the case came before the Sixth Circuit, in a compromise settlement by the bank--

Unidentified Justice: Then if you get what you want, there will be an injunction against you in the District Court.

Robert L. Estes: --From applying the seventy... anything, any amended regulation after '73.

Unidentified Justice: Exactly.

Robert L. Estes: That's right.

Unidentified Justice: So you are conceding you are not entitled to apply the later regulations, is that it?

Robert L. Estes: Well, I think we are forbidden from doing so under that injunction.

Unidentified Justice: Well, you haven't come up here with a... you seem to want to live with that injunction.

Robert L. Estes: I don't necessarily want to live with it, but we are stuck with it.

There was a--

Unidentified Justice: Why?

Why?

Robert L. Estes: --Well, that court granted that injunction on state law saying that we were estopped to apply any later regulations to Temple Hills subdivision.

Unidentified Justice: What you did do, you did apply it in turning down this plat.

Robert L. Estes: We did, but we say it doesn't matter because as far as this part of the case is concerned, because that plat did not even comply with the '73 regulations.

Unidentified Justice: Well, but that's a factual thing.

That's something you want us to pass on up here in the first instance, whether this complied with the '73 regulations?

Robert L. Estes: That's right.

The taking issue depends on that.

The Plaintiffs filed suit depending upon the '73 regulations and the original '73 plat that was preliminarily approved.

Unidentified Justice: Well, I know, but you turned them down based on the later regulations.

Robert L. Estes: That's right, but analysis--

Unidentified Justice: Now you are enjoined from doing so.

Robert L. Estes: --That's right.

But an analysis--

Unidentified Justice: And you want us to say you were right in the first place based on the '72 regulations.

Robert L. Estes: --We were right.

They had no... we are actually saying, Your Honor, that they had no cause of action under Section 1983 and under Fifth Amendment taking theory because they never submitted a plat that even complied with the very regulations that they were depending on in--

Unidentified Justice: How do we know that?

How do we know that?

Robert L. Estes: --Look on the face of these plats.

Unidentified Justice: I know, that's just an initial piece of factfinding by us you are asking us to perform.

Robert L. Estes: Well, we are saying that as a matter of law the plaintiffs failed to prove a Fifth Amendment taking since they failed to show that they even submitted a plat that complied with the very regulations that they were relying up.

Unidentified Justice: Did the Court of Appeals rule on that point?

Did the Court of Appeals say either that the plat did or did not comply with the 1973 regulations?

Robert L. Estes: No, Your Honor.

In fact, the trial court wouldn't even rule on that issue.

We submitted it so many times to him, in our answer, in our--

Unidentified Justice: Now you are submitting it here?

Now you are submitting it here.

For the first time.

Mr. Estes, the warning light is on.

I just want you to know that you are about eating into some other time.

Robert L. Estes: --I want to reserve about five minutes for rebuttal.

Unidentified Justice: Can I ask just one question, if I may?

Robert L. Estes: Yes, sir.

Unidentified Justice: Do you argue that even if there is a taking under these regulations, that nevertheless there should not be monetary damages?

Do you make that argument?

Robert L. Estes: We are trying to make the argument a little bit differently.

We are saying there is not a compensatory taking here, there is just a minor interference with their development.

Unidentified Justice: I understand, but do you concede that if there was a taking, that it would not be an adequate remedy just to enjoin enforcement of the regulation?

Robert L. Estes: No, we maintain that there are adequate remedies under Tennessee law as contrary to California law where there may not be adequate remedies.

I am familiar with that.

But we have inverse condemnation in Tennessee.

Chief Justice Warren E. Burger: Mr. Kneedler?

ORAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ., ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Edwin S. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court:

In a number of respects, affirmance of the judgment of the Court of Appeals in this case would represent a substantial departure from established principles under this Court's Fifth Amendment decisions.

As an initial matter, as we point out in our brief, it doesn't appear that Respondents have ever alleged or proven that any taking that occurred in this case was without just compensation, because they haven't shown that a compensation remedy would be unavailable under state law.

To ignore this essential element of a Fifth Amendment claim would be in effect to convert the Federal District Courts into claims courts for the states by permitting them to entertain inverse condemnations in any case, even though the state might also provide an inverse condemnation remedy.

However, the submission of the United States in this case does not relate to the without just compensation aspect of the cause of action but rather to the question of whether there was a taking at all that required the payment of just compensation.

There are four points that are important to us, and I will identify them at the outset: first, that there was no taking in this case because the bank did not pursue procedures before the Petitioner to either obtain a variance or to seek to comply with the applicable regulations; secondly, that the Court of Appeals applied flawed analysis in determining what would be a taking in the zoning context; third, the Court of Appeals ignored the principle that unauthorized conduct by agents of the government such as the application of the wrong regulation here gives rise to a claim for just compensation rather than being in the nature of a tort for wrongful regulation that does not give rise to a claim for just compensation; and fourth, that no compensation was owed for a so-called temporary taking in the circumstances of this case.

Now, in answer to several of the questions that have arisen before, looking at the first point, it does seem to us that the failure of the bank to seek to pursue procedures before the Planning Commission does end this case, and I think that the fact that neither the Court of Appeals nor the District Court passed on the question of whether the plat complied with the 1973 regulations only reinforces the conclusion that that's a matter for the Planning Commission to decide in the first instance, and in fact, the Planning Commission did decide that the submission did not comply with provisions that were present in both sets of regulations, the steep slope requirements, the length of the cul-de-sacs, the road grades, all matters pertaining to public safety that are quite aside from the density of the residential units on this piece of property.

And so the point is that the developer should submit his case to the Planning Commission, and as Mr. Estes pointed out, counsel for the bank conceded that variances would be required in this case to overcome the difficulties with the road grades and with the length of the cul-de-sacs.

He simply wanted the Planning Commission to grant approval to the preliminary plat and then he would apply for variances.

But in fact, the subdivision regulations applied by the Commission say that the variance has to be applied for before the preliminary plat is approved.

And that alone, the absence of a variance request is alone sufficient basis for rejecting the plat.

And the idea that the--

Unidentified Justice: And also, I gather, Mr. Kneedler, you say that also precludes any finding of a taking.

Edwin S. Kneedler: --That's right.

It's not that... it's not a question of--

Unidentified Justice: And that's your basic question.

Edwin S. Kneedler: --That's right.

It is not a question of exhaustion of remedies for a completed violation, but just that there is no violation at all.

And this is the point the Court made in the Hodel decision.

Unidentified Justice: Well, what about the argument we just heard that the Attorney General has said it would have done no good to go to the Board of Zoning Appeals?

Do you agree with that?

Edwin S. Kneedler: Well, that's a question of state law with respect to these other issues.

The only thing that was before the Board of Zoning Appeals before was the question of whether the sub... the Planning Commission was required to apply the 1973 regulations.

Any question of compliance with those regulation was not before the Board of Zoning Appeals.

Unidentified Justice: Well, what do you understand went to the jury?

Edwin S. Kneedler: On the question of... there were--

Unidentified Justice: How were these $350,000 arrived at?

Edwin S. Kneedler: --It's quite difficult to determine.

I think that what, in effect, the way the jury... from my reading of the record and what the jury was permitted to infer was really damages on the basis of lost... on the lost of reuse of money, that whatever amount that the--

Unidentified Justice: Well, what were the instructions?

Were the instructions--

Edwin S. Kneedler: --The only instructions on the question of taking are whether the landowner had been denied the economical... the economic viable use of this property.

The jury returned a verdict saying yes, and then the question of damages went separately.

There were very... the instructions on the question of compensation were not very detailed, and there is no indication that I can discern as to how those damages were computed.

The idea that administrative remedies have to be pursued ties in with the notion of a taking because a taking occurs in the regulatory context only when the government has deprived the owner of all or substantially all of the benefit of the use of his property, and that doesn't occur just because an agency has not approved a particular proposal for development, as was the case in Penn Central.

The Court pointed out that yes, the developer may not be able to build a 50-story building, but he might be able to build a 20-story building, and that only when it is clear that the agency is not going to permit any substantial development is the taking claim right.

Unidentified Justice: --Well, Mr. Kneedler, does the government take a position on whether the Commission was entitled to apply the later regulations?

Edwin S. Kneedler: Now, that's a question of state law that I think is not of principal interest to us.

It does seem to us, though, that the nature of the jury verdict--

Unidentified Justice: I thought part of the claim or a major part of the claim was that they applied later regulations that really affected the taking.

Edwin S. Kneedler: --Well, in that respect... and it ties in to another one of our points, that the Commission was unauthorized to do that.

They were not authorized as a matter of state law to apply the 1981 regulations, and that flies in the face of the established principles of this Court in Hooe, in North American Company.

It was reflected in Dames & Moore, that unauthorized conduct by agents of of the sovereign is not--

Unidentified Justice: When would there ever be a taking if the... there wouldn't be a taking if the Commission acted properly, and there isn't a taking if they acted improperly.

Edwin S. Kneedler: --No, we are not suggesting that--

Unidentified Justice: And there isn't a taking because they acted improperly.

Edwin S. Kneedler: --No, we are not suggesting that there can never be a taking if the agency acts properly.

The state legislature could in some states authorized a zoning board or a planning commission to adopt regulations that would go so far as to constitute a taking.

Unidentified Justice: So a commission may just completely disobey a state law and deny the landowner any use of his property, and there still isn't a taking?

Edwin S. Kneedler: There's not... there's not a taking giving rise to the self-executing--

Unidentified Justice: Because the... because why?

Edwin S. Kneedler: --Because as the--

Unidentified Justice: Somebody just booped it.

Edwin S. Kneedler: --That's right.

It's something that sounds in tort more than--

Unidentified Justice: But if he didn't have his taking claim, would he have a due process?

Edwin S. Kneedler: --He might have a due process claim, and--

Unidentified Justice: As one ask, is there a due process claim here?

Edwin S. Kneedler: --No, not before this Court.

The jury directed a verdict on the assumption of due process claim, and if a damage remedy were available, it wouldn't be because of the self-executing aspect of the Fifth Amendment but perhaps because of a 1983 remedy where Congress has created a damage remedy where the Fifth Amendment doesn't require it.

Unidentified Justice: Well, does the government concede that there could be a taking in the eminent domaine sense where there has been no physical occupancy of the land?

Edwin S. Kneedler: Yes, yes, we are not arguing that regulations can never constitute a taking.

Our only point is that compensation isn't due unless the legislature has authorized the agency to do this.

We point out that there is a provision of the Strip Mining Act which is construed not to permit a denial of a permit to mine where it would result in a taking.

In that instance you couldn't have a taking claim because the agency isn't authorized to apply it, so the appropriate thing to do would be to bring an injunctive action or to seek APA review of the denial of the permit in those circumstances.

I also wanted to briefly address what we see as two flaws in the takings analysis.

The first is the notion of vested rights that the bank addresses.

Vested rights does not mean property rights.

It is a term of art in the zoning area which means as a matter of... when as a matter of state law a development has proceeded to a certain extent, state law permits them to complete the development.

That is not the same thing as a property right.

When the government grants a license or a permit, it is not purporting to confer a property right on someone, and ordinarily the permit could be revoked, and in fact, in the very case that the bank relies on in this case, Schneider v. Lazarov, from the Tennessee Supreme Court, the Tennessee Supreme Court said that very thing with respect to building permits in Tennessee.

If a building permit is granted, it can be revoked without automatically giving rise to the claim for just compensation.

So the mere fact that the bank once had approval, even if it were so, for 736 units, does not forever give it a permanent exemption from the application of changes in the zoning ordinance.

Unidentified Justice: Mr. Kneedler, do you take the position that a property owner would have to follow judicial review remedies as well for it to ripen into a taking?

Edwin S. Kneedler: I think that would depend on the particular statutory scheme.

I think under the federal system Congress could prescribe that APA review would have to be sought for the denial of a permit, and that's particularly so where the agency was not authorized to engage in conduct that would constitute a taking.

Unidentified Justice: Well, do you think that's true in this case?

Edwin S. Kneedler: I think that's less clear.

I think it tends to blend in with the question of whether there should be abstention on the state law question of whether the commission had properly applied state law.

It does seem strange that that should be something for a federal court to decide in the first instance which set of regulations should be applied.

Thank you, Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Nebel?

ORAL ARGUMENT OF G. T. NEBEL, ESQ., ON BEHALF OF THE PETITIONERS

G. T. Nebel: I thank Your Honor.

Mr. Chief Justice, and may it please the Court:

The issue before this Court is whether the state will be required to pay just compensation when its regulations destroy all practical economic value of private property.

To resolve that issue, Hamilton proposes the following two propositions of law:

First, zoning regulations can effect a Fifth Amendment taking, at least in those rare cases in which the regulations go too far and destroy all practical economic value.

Secondly, when a Fifth Amendment regulatory taking has occurred, the appropriate remedy is compensation.

Now, returning to my first proposition which really leads me to respond to several of the questions raised by the Court, after 15 days of trial, 27 witnesses, and hundreds of documents, the jury was submitted the following special interrogatory: has Plaintiff been denied economically viable use of its property in violation of the just compensation clause of the Fifth Amendment.

Unidentified Justice: Did the instructions that led to that conclusion of the jury, did they define a compensable taking?

G. T. Nebel: Yes, Your Honor, and in fact, the jury was specifically instructed that if there was any economically viable use of the property remaining, then no Fifth Amendment taking could occur.

Unidentified Justice: Have you any suggestion how the jury arrived at $350,000?

G. T. Nebel: Yes, Your Honor.

The $350,000 figure really came from the holding costs associated during the temporary taking.

Unidentified Justice: The what costs?

G. T. Nebel: The holding costs, the loss of the use of the money.

Unidentified Justice: Yes.

G. T. Nebel: Not the lost interest, not the lost profit that Hamilton could have made by reinvesting that money and loaning it to someone else and charging a higher rate of interest, but specifically, the record reveals that there were $393,000 in damages to Hamilton from loss of use of the money, and that formula came from very reasonable calculation, namely, the cost to Hamilton under the Fed Fund discount rate.

So really, all the jury found, among other costs associated, was that Hamilton was entitled to recover a portion of the holding cost of the property when the period was temporarily... excuse me, when the property was temporarily taken from Hamilton during that sixteen month period.

Unidentified Justice: And your client was content with that?

G. T. Nebel: Well, Your Honor, we... in light of the injunction that we got with it, we wouldn't have appealed from the District Court decision if there hadn't been a judgment NOV.

We didn't receive everything, and under the course of the decisions of this Court, we were entitled to be put in the same monetary position as if the taking had not occurred, and we never did get to that point, but we would have been satisfied, intelligence.

Unidentified Justice: Mr. Nebel?

G. T. Nebel: Yes, Mr. Justice?

Unidentified Justice: What holdings of this Court do you rely on for the proposition that there can be a taking under the eminent domaine clause when there has been no physical occupancy of the land and no effort by the government to condemn?

G. T. Nebel: Well, Your Honor, there are, of course, the law in that area is summarized in the San Diego Gas opinion, dissenting opinion by Justice Brennan.

Most recently--

Unidentified Justice: What I was asking you, what holdings of our Court do you rely on?

G. T. Nebel: --Well, for example, in Buckelshaus v. Monsanto, last term, this Court found a regulatory taking and found that compensation was the appropriate remedy.

Unidentified Justice: But didn't it find that the property value in those particular formulas had been destroyed?

G. T. Nebel: Well, that's exactly what happened in this case, Your Honor.

This is... this is different from all the cases where there's been a mere denial of the highest and best use or some de valuation of the property.

Hamilton has never contended that it was a mere denial of the highest and best use.

This is a case where 100 percent of the total practical economic value of the property was wiped out.

Unidentified Justice: That's what the jury found, wasn't it?

G. T. Nebel: That's exactly what the jury found.

That special interrogatory that I read a few moments ago was a quote which of course appears in the Joint Appendix and is part of the record.

Unidentified Justice: Well, do you think the damage was done to your client by the application of the later regulations?

G. T. Nebel: Absolutely, Your Honor.

Unidentified Justice: And what's your answer to the government that says, well, the Zoning Board, whoever it was, just made a mistake and they shouldn't have applied the later regulations.

That was contrary to state law, and there can't be a taking just based on an error of an agent.

G. T. Nebel: Well, I would agree with Your Honor's question to the extent that you were stating a proposition, and in that case you would never have a taking.

This Court held in Euclid, I believe it was, that--

Unidentified Justice: Well, they... Mr. Kneedler seemed to say that if the state law had actually authorized the application of these later regulations, maybe there would have been a taking, or could have been.

G. T. Nebel: --Well, that really goes, I think, to the question of public use.

I think that is how he is trying to tie this up.

Unidentified Justice: Well, you do have to answer the claim, though, that there can be a taking that results merely from an error of state law.

G. T. Nebel: And Your Honor, the answer--

Unidentified Justice: Can there be?

G. T. Nebel: --Yes, yes.

Unidentified Justice: You have to take that position.

G. T. Nebel: Yes, Your Honor.

Unidentified Justice: Well, supposing that the government, some government agent, say a federal government agent, goes on my land and occupies it.

Now, Congress has never authorized him to occupy it at all, but he says I am here to take over this land; it's no longer yours.

Now, does the fact that he says that and he is an agent of the government mean that my property has been "taken"?

G. T. Nebel: Well, Your Honor, I will respond to your question.

Obviously those aren't the facts here.

Unidentified Justice: Right.

G. T. Nebel: The taking here was authorized by state law, and Your Honor, I didn't mean to imply to your question, Justice White, that we have to find an unauthorized act.

I don't think I did state that.

Unidentified Justice: No, no, I don't think you answered that way.

G. T. Nebel: No.

Unidentified Justice: But you do have to claim that if this taking resulted from the application of the later regulations, you have to... if that's what... you then have to answer the claim that, well, yes, but the application of the later regulations was contrary to state law.

G. T. Nebel: Well, that's not true, first all, in this instance, Your Honor.

Unidentified Justice: Well--

G. T. Nebel: To the extent, to the extent that those--

Unidentified Justice: --In my view, you might have two answers to it: one, it was consistent with state law to apply them, but even if it wasn't, there can still be a taking?

G. T. Nebel: --That is correct, and that is our position because cases that hold such, the fact that the state acted under color of state law, or the Planning Commission in this case acted under color of state law I think is sufficient to meet that requirement, and of course, that's not what we have here anyhow.

We have a Planning Commission that was acting pursuant to regularly adopted and promulgated state planning laws.

But the impact, it is the economic impact of those regulations that was illegal, unconstitutional under the Fifth Amendment.

There isn't anything on the face of those regulations that is illegal.

It is the application of those regulations to our property, and the economic impact--

Unidentified Justice: Was there a holding below by the lower courts that the application of the later regulations was improper under state law?

G. T. Nebel: --Yes, that's the impact of the estoppel verdict, Your Honor.

Under Tennessee State law, the jury also determined, in addition to answering the taking question, the jury also determined that the defendant should be estopped from imposing those new regulations.

That doesn't mean again that the regulations are inherently illegal in and of themselves under a facial attack to the regulations.

It is just as they were applied to our property.

Many of the arguments raised by Mr. Estes during his argument will not be responded to except as the Court requires because, quite frankly, our position is that these issues have already been determined by the jury and have been affirmed by the Sixth Circuit after a full review of the record, and there was--

Unidentified Justice: Mr. Nebel, can I ask you to move on to your second point, which is the one that interests me most in the case?

Let me give you a hypothetical.

Suppose you got a case where nobody really questions the fact that some attempt at zoning regulation or government restrictions would deny the owner of the property all viable use of the property, but there is a good argument for doing it, environmental concerns and all the rest, and it takes five years to litigate the question, with procedural fairness all the way along the line, appeals up to this, and eventually the property owner wins, and then the government says okay, you can get an injunction against further interference with that property.

Does it automatically follow under your theory that there are damages for temporary taking?

G. T. Nebel: --No, Your Honor.

If the Court's question goes to the deliberative process of the agency, I think that--

Unidentified Justice: Can there be... what I am asking you is can there be governmental denial of all viable use of a property owner's property for a period of time that it takes to find out whether it is unlawful or not without there being a compensable taking, in your view, and if so, why isn't that what this case is?

G. T. Nebel: --Well, Your Honor, my response to that would be no, and under the--

Unidentified Justice: Because if you always have to pay if you--

G. T. Nebel: --If you take.

Unidentified Justice: --If you deny total use of the property.

G. T. Nebel: That would be our position, Your Honor.

Again, the facts in this case aren't precisely like that, so you don't have to go that far to reach a holding in Hamilton's favor, but to respond directly to the Court's question, yes.

Unidentified Justice: So that any time the government wants to take action that extreme, it litigates at the peril of paying damages for the temporary interference with the property.

G. T. Nebel: That's precisely our point, Your Honor, and the fact that--

Unidentified Justice: Has any case suggested that other than Justice Brennan's decision in the San Diego case?

Is there my precedent for that view?

G. T. Nebel: --Well, Your Honor, I think that number one, under the concept of equitable loss, yes, Owens v. City of Independence.

As in the land use area, I think that a long line of cases of this Court indicate that when there is a denial of all economically viable use of the property, that there is a taking, and the time for measuring that taking--

Unidentified Justice: Yes, but then the question is the remedy.

Is it an adequate remedy just to enter an injunction say, well, you cannot impose that restriction anymore?

G. T. Nebel: --No, because number one, the language of the Fifth Amendment is self-executing, where the government takes it, they've got to pay for it.

Number two--

Unidentified Justice: And if it's only temporarily?

G. T. Nebel: --That's right.

Unidentified Justice: They still have to pay.

G. T. Nebel: That's exactly right.

Unidentified Justice: The temporary amount.

G. T. Nebel: For the temporary period only, and the facts in this case demonstrate how reasonable that rule is.

As I have indicated in response to a question from Justice Brennan, Hamilton Bank suffered a number of holding costs in connection with this.

The record indicates that it was close to half a million dollars, according to the testimony of one of the officers of the bank, but they only got $350,000.

Our rule of law would simply spread the loss and not put it on a property owner when a regulation has been implemented that destroys all economic value.

And that is a very narrow set of cases that are going to... where the property owner is going to be able to come in and prove total destruction of the economic value of his property.

In response to the questions that were raised concerning exhaustion of the administrative remedies, we have got several responses to that.

First and foremost, keeping in mind... I will start with just a brief description of the chronological process of the administrative procedure.

Unidentified Justice: Could I ask just one other question?

G. T. Nebel: Yes, sir.

Unidentified Justice: Is part of your claim that the application of later regulations was forbidden by the federal Constitution, or were they just forbidden by state law?

G. T. Nebel: Well, they were forbidden both by state law and by the federal Constitution to the extent that they were applied without compensation.

Now, they are not illegal--

Unidentified Justice: No, that isn't--

--They are not illegal under the Fifth Amendment, unconstitutional under the Fifth Amendment to the extent that Hamilton has been compensated.

As to the question of exhaustion of administrative remedies, on October 2... keeping in mind for just a moment a time line... on October 2 of 1980, for the first time, a plat was denied approval by the Planning Commission.

On October 3, in response to a question from the developer as to what do we do next now that our plat has been denied, an officer of the Planning Commission wrote and suggested an appeal to the Board of Zoning Appeals.

Forgive me.

Will you give me the date again?

G. T. Nebel: --Okay, October 2 was the denial of the plat.

Unidentified Justice: Right.

G. T. Nebel: October 3, a letter from the Planning Commission.

Unidentified Justice: This is all 1980.

G. T. Nebel: All 1980.

Unidentified Justice: Right.

G. T. Nebel: And then on November 11, an appeal was taken to the Board of Zoning Appeals.

The Planning Commission sent representatives, both the county attorney and the county planner showed up to argue their case.

They lost.

On November 25, or 26th, Hamilton foreclosed on the property.

Prior to that time, the evidence is clear in the record that the Planning Commission abided by the Board of Zoning Appeals decisions.

Temple Hills is the only instance that the record reveals where the Planning Commission refused to abide by the Board of Zoning Appeals decision.

Moreover, in addition to the fact that the Board of Zoning Appeals route was taken, in 1981, June of 1981, moving forward in chronology, Hamilton submitted two plats.

One plat was a plat that had been approved and reapproved on numerous occasions between '73 and '79.

The other plat was a plat that was submitted in an attempt to comply with the Planning Commission's request.

At that meeting, June 18 of 1981, the Planning Commission turned down both plats submitted by the Planning Commission.

The county attorney was asked by the developer's representative what do we do next?

Do we go to the Board of Zoning Appeals?

The county attorney said we will not listen to any opinion from the Board of Zoning Appeals.

Now, in addition there is--

Unidentified Justice: I gather the Board of Zoning Appeals has no enforcement authority at all?

G. T. Nebel: --Well, no, no it is not self-enforcing, Your Honor.

The only way it can enforce would be to pursue a common law writ of certiorari in Tennessee.

Unidentified Justice: I see.

G. T. Nebel: And of course, it is interesting, as the Court noted, the Board of Zoning Appeals decision in November of 1980 was not appealed by the Planning Commission, and yet they arguing evidently that we should have done more in our case.

Unidentified Justice: Mr. Nebel, can I ask you another one?

I don't want to interrupt you if you are not finished with your point, but--

G. T. Nebel: Go ahead, Your Honor.

Unidentified Justice: --I had another question following up on the problem that still troubles me somewhat.

Can there be a partial taking under your view?

Say that the Zoning Board said you can't use the east half of the tract, you must keep it vacant, and then you litigated that for five years, you finally said, no, you can build on the east half as well as the west half, would your theory apply to that?

G. T. Nebel: Well, Your Honor, under the traditional principles of eminent domaine, you can't have a partial taking.

As to whether or not there would be a partial taking in the hypothetical case presented by Your Honor, that would depend on an economic analysis.

There might be some--

Unidentified Justice: No, but you would say that the part that you are referring to, the east half of this large tract, must be entirely vacant and cannot be used for any commercial or residential purpose whatsoever because of interest in open areas and all that sort of stuff, and you have litigated that and say no, we are entitled to use that.

Wouldn't that be a clear case of a complete denial of economic use of that part of the tract, and therefore wouldn't you theory apply?

G. T. Nebel: --Well, Your Honor, as to that part of the tract, there would be a denial of economically viable use, but whether or not under those circumstances you would look at the other tract, too, I think it would depend on the facts of the case and whether or not substantial justice required the Court to do that.

Unidentified Justice: It seems to me that the principle for which you contend could be applied to almost any aspect of zoning regulation.

That's what I'm trying to think through.

You say you can't build or can't build above a certain height or can't build on a certain area, you are totally taking to the extent that the restriction applies.

G. T. Nebel: Well, not, no... Your Honor, I disagree with that.

As this Court noted in Penn Central, for example, there was a total denial of the air space rights above the building, but that wasn't a taking because the owner had a residual use in the Grand Central Station terminal, an economically viable use.

That's not the case here.

We've got Hamilton... the only property that Hamilton owned was the 258 acre tract that it foreclosed on.

There were no residual rights, no economically viable use in that tract.

One hundred percent of Hamilton's property was subject to these regulations, and the economic impact was the total destruction of value.

I think that distinguishes Hamilton from the hypothetical of the Court.

Unidentified Justice: When you say the total destruction of value, are you saying that not a single house could have been built on that tract?

G. T. Nebel: Well, no, Your Honor.

The testimony at trial was that on this 258 acre tract, when you consider all the objections raised by the Planning Commission, you could obtain 67 scattered building sites.

Unidentified Justice: Well, that doesn't sound like a total destruction of the use of the tract.

G. T. Nebel: Well, that's why I've tried to proceed from a practical standpoint.

Of course, any land has some value, but to develop those 67 houses, those lots, Your Honor, under the requirements of the applicable zoning ordinance, you would have to put sewers in, underground utilities, roads that met certain specifications, etcetera.

You can't just go out and build a house out in the middle of that property.

You would have to meet the Planning Commission's own requirements.

The cost of meeting those requirements would be approximately $2 1/2 million, according to the record, whereas the maximum that the developer, that Hamilton could have realized by selling those 67 scattered building sites would be $1 1/2 million.

So you would wind up... any developer who bought that property and wanted to build those 67 houses would have to do so knowing that he would lose a million dollars on the front end.

And of course, nobody is going to do that.

No alternative uses were available.

The record is clear, it was zoned only for residential.

You couldn't put commercial, agricultural or industrial uses on the property.

Unidentified Justice: And so you say that because of the requirements they imposed for selling lots would have cost $2 1/2 million for 67 lots and you could have only sold the lots for $1 1/2 million, that is a denial of any economic use.

G. T. Nebel: That's right, and the testimony at trial, uncontradicted, was that Hamilton because of that was unable to sell the property and because no one was going to pay anything for the right to go in and develop property at a million dollar loss and additionally has pointed out there were no alternative uses for it and... in this particular case.

Part of the problem is, Your Honor, you can't just look at it in a vacuum.

The property had been used for six and a half years as residential property.

A golf course had been put in.

All of those committed and locked Hamilton in to a residential use development.

In addition to the fact that--

Unidentified Justice: Let me ask just one other question.

G. T. Nebel: --Yes, Your Honor.

Unidentified Justice: As I understand, there was a finding of no substantive due process violation.

Was there also a question of whether there was any procedural due process violation?

G. T. Nebel: Yes, and on a procedural due process violation, the Court directed--

Unidentified Justice: A verdict against.

G. T. Nebel: --A verdict against, that's right, and we of course appealed that.

Unidentified Justice: We assume that there were total fair procedures all the way through, then, for purposes of analysis.

G. T. Nebel: For purposes of analysis, yes, Your Honor.

Unidentified Justice: Well, there's no issue, is there?

G. T. Nebel: Pardon, Your Honor?

Unidentified Justice: The procedural due process issue is not here now.

G. T. Nebel: No, it is not, Your Honor.

We of course appealed that to the Sixth Circuit, but the Sixth Circuit said that that issue was predominate by its holding on the taking issue which gave us all the relief that we sought.

On the exhaustion of administrative remedies and state judicial remedies, the Petitioners argue that we should have gone to state court first.

Of course, that isn't the law under Section 1983, and we had a right of course to bring our federal claim, a violation of a federal constitutional right, in federal court.

And then--

Unidentified Justice: What constitutes the rights that you claim were violated?

G. T. Nebel: --We claim denial of equal protection, substantive and procedural due process and a violation of the Fifth Amendment.

Now, we brought both a direct claim under the Fifth Amendment, a--

Unidentified Justice: Do we have anything except the Fifth Amendment claim before us now?

G. T. Nebel: --No, Your Honor.

Unidentified Justice: That's the only one, isn't it?

G. T. Nebel: That's the only one.

Unidentified Justice: Well, what if your client had lost before the Planning and Zoning Commission on the issues you present and never appealed to the Board of Zoning Appeals?

Do you think you could have gone right into federal court from the decision of the Planning and Zoning Commission?

G. T. Nebel: In this case I think yes, Your Honor.

I think as a general abstract proposition you have to exhaust your remedies except from a 1983 standpoint, I am aware of a lot of cases that say that rule doesn't apply, but I think from a... number one, normally yes.

In this case, not only did we exhaust our remedies, but it would have been futile to attempt to do anything more.

Hamilton went the extra mile simply to avoid going to court.

They couldn't make any money going to court.

The last thing that they wanted to do in this case... and the record is replete with references to the fact that they wanted to work with the Planning Commission and avoid the expense of litigation.

They can make more money by selling this property than by bringing a claim in federal court.

The Petitioners argue the application of the Davis case, which is a Tennessee Court of Appeals decision cited in our brief, and say that that means that there was an adequate state court remedy available.

First of all, our position is that under Section 1983, we can bring a claim directly in federal court.

Secondly, our position is that even if there is some requirement that you exhaust state judicial remedies, that... and the Justice Department brief concedes on this point that even that is predicated upon the existence of an adequate state court remedy, and in our case, there is no existence of an adequate state court remedy available.

The statute says on its face, and I quote... this is 29-16-123, which is the statute they rely upon...

"If, however, such person or company has actually taken possession of such land, occupying it for the purposes of internal improvement, then the owner can bring a lawsuit. "

The Davis case specifically refused to apply 29-16-123 because it said there was no allegation or evidence... and I am quoting,

"No allegation or evidence that the defendant government actually entered upon, took possession of or used any of the real estate of plaintiff. "

So the Davis case actually supports our interpretation of 29-16-123.

Unidentified Justice: I suppose the existence of the inunction against applying the later regulations but off the running of the damages, is that it?

G. T. Nebel: Yes, Your Honor.

It converted it to a temporary taking.

Unidentified Justice: Damages are not now accruing.

G. T. Nebel: That is correct, Your Honor.

Unidentified Justice: And so what has happened to the property after all this time?

G. T. Nebel: Well, Your Honor, it's not in the record, but to respond to your question, the property... they... and it is interesting to note that development has gone on under 1973 standards, these same standards which they find--

Unidentified Justice: So you filed a plat that has been approved apparently.

G. T. Nebel: --That is correct, Your Honor.

That's correct, under 1973 standards, Your Honor, not under 1979.

Unidentified Justice: Yes, I understand.

Okay.

G. T. Nebel: In Ledbetter v. Peach, the Tennessee Supreme Court in interpreting 29-16-123, found that that statute did not apply... and I am quoting again...

"in the absence of a physical taking or direct interference amount to a physical taking. "

Moreover, the issue of whether we should have gone to state court first has been raised too late.

In an opinion by Justice Brandeis styled Twist v. Prairie Oil & Gas Company, 214 U.S. 684, this Court in a similar context found that the petitioners had no right to challenge the choice of forum at the late date of their argument to the Supreme Court.

As to the existence of remedy, I think I have made most of my point to this point.

Our position is that the Fifth Amendment is self-executing.

If the government takes it, they have to pay for it.

Unidentified Justice: Let me ask you one other question on this.

In thinking back to some of the old rate cases where a commission sets the utility rates at a low level, then they appeal to the state supreme court, and the state supreme court says no, that is a taking without due process of law, the rates are too low, they can't use their property, and they reverse and require that the new rates be put into effect, would the utilities always be able to get damages from the lower commission in those cases?

I think they would under your view.

G. T. Nebel: Well, Your Honor, if you will run that by me one more time again.

Unidentified Justice: Well, there used to be... there's not too much of this litigation anymore, but you know, public utility commissions regulate utility rates, electric companies, telephone.

G. T. Nebel: Yes, I understand that.

Unidentified Justice: And supposing the commission sets a rate level that is so low that on appeal the company is able to persuade the state supreme court that there was a taking without due process of law because the rate was so low they couldn't have any economically viable use of their capital, would, in a case like that... I understand, then of course, the supreme court would say no, you have got to let them charge the higher rate... would the company also be entitled to damages from the commissioners who set the wrong rate?

G. T. Nebel: Well, Your Honor, no.

And in my mind, the hypothetical that you presented is merely a diminishing of economically viable use.

I don't see where there's--

Unidentified Justice: Well, the theory of the rate regulation often was that it was a taking without due process.

G. T. Nebel: --Right.

Well, I just... you know, a total denial of economically viable use in a case like that I think would be very, very difficult to prove.

Unidentified Justice: Well, you have to operate at a loss, just as your... your taking here is not... you know, you could still sell the 67 houses, but your point is you would lose money if you did.

So it is a taking in the sense that it is an unprofitable use of the property, and any time regulation causes a citizen to make unprofitable use of his property, why would it not be a taking that would give rise to this very kind of claim you have here?

G. T. Nebel: Well, our position is not just that it was unprofitable.

I mean, it wasn't a case of just breaking even or... and it's more than... we couldn't sell it.

If you analyze the traditional bundle of property rights, which this Court has referred to in a number of its decisions in this area, we had... the right to alienate that property was from all practical standpoints--

Unidentified Justice: But it really wasn't.

I mean, you could have sold it.

You would have lost money selling it, but you were not disabled from selling it.

G. T. Nebel: --That... well, disabled--

Unidentified Justice: The test really is whether you can make any money out of what you want to do with your property.

G. T. Nebel: --The record in this case, Your Honor, is that Hamilton tried to and could not sell it.

Now--

Unidentified Justice: Well, could not sell it at the price it wanted.

You could have sold it at $10 an acre, I'm sure.

G. T. Nebel: --Well, it could have sold it probably for some nominal value.

Unidentified Justice: Sure.

G. T. Nebel: But--

Unidentified Justice: Well, is your $2 1/2 million that you say you would have had to pay to meet the requirements of these lots, is that just in expenses over and above what you had already paid for the land, or does that include the basic price that you had paid for the land?

G. T. Nebel: --No, that includes additional expenses.

The economic analysis of our expert witness was based on the cost of construction as measured against gross sales.

Unidentified Justice: Well, but now, does that $2 1/2 million figure include the price you paid for the land as well as the price of putting the requirements on?

G. T. Nebel: No, Your Honor.

It would have been a cost of constructing sewers and making additional improvements in the property.

Unidentified Justice: And it is those additional improvements that account for all of the $2 1/2 million.

G. T. Nebel: Yes, Your Honor, that's my understanding of our expert's testimony.

Now, it appears in the record.

Unidentified Justice: Did you try the case?

G. T. Nebel: Yes, Your Honor.

Our position is that plaintiffs should not be specially privileged under the Constitution.

Affirming the Sixth Circuit would merely bring needed constitutional discipline to this area of the law.

The Fifth Amendment addresses takings, not just some takings.

Regardless of the mechanics of a taking, whether it be by regulation or eminent domaine, the Fifth Amendment makes takings illegal, at least to the extent they are uncompensated.

Liberty and property as so intertwined that one cannot have meaning without the other, and under principles of fundamental fairness, we request that this Court affirm the decision of the Sixth Circuit.

Unidentified Justice: Do the complete instructions to the jury appear in the record?

G. T. Nebel: Yes, Your Honor.

Unidentified Justice: And were there any objections on either side to those instructions as they were delivered?

G. T. Nebel: Not as they were delivered.

There was an objection by the Planning Commission to some of the special interrogatories submitted to the jury, but not to the instructions on the law.

Unidentified Justice: No instructions on the law as to what a taking was or anything?

G. T. Nebel: There were instructions on--

Unidentified Justice: I know, but no objections?

G. T. Nebel: --No objections, no, Your Honor.

Chief Justice Warren E. Burger: Very well.

You have one minute remaining, Mr. Estes.

ORAL ARGUMENT OF ROBERT L. ESTES, ESQ., ON BEHALF OF THE PETITIONERS -- Rebuttal

Robert L. Estes: All right.

Mr. Chief Justice, and may it please the Court:

My recollection of the jury's charge is a little bit different from Mr. Nebel's.

I don't recall the judge charging the jury that if there was any economical viable use there was no taking.

Instead, I remember him saying if they were denied economically viable use, then there was a taking.

He did not define how much economical viable use would have to be--

Unidentified Justice: Well, all of the instructions appear in the record, I take it.

Robert L. Estes: --They do, Your Honor.

Unidentified Justice: So I guess we can find that out.

Robert L. Estes: They do.

Secondly, we take the position that just because there would be a taking under this conduct if the situation were be a taking under this conduct if the situation were permanent does not necessarily require a finding of a compensable taking if it is temporary, particularly where the deliberative process is still going on.

And I point out to I Appendix page 370, Plaintiff's Exhibit 9035, which is a letter from the Planning Commission here to Mr. Killebrew, who was the representative of the Hamilton Bank, on June 23, 1981 with regard to this turndown of this plat whereby he advises them of the problems there and tells them if there is any question, notify my office.

Staff will be glad to work with you and your representatives to correct deficiencies so as to comply with the county zoning and subdivision regulations.

Chief Justice Warren E. Burger: Your time has expired.

Robert L. Estes: Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

We will hear arguments next in Devine v. NAACP Legal Defense Fund.