Amicus Curiae Brief — Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania, et al.

No. 17-647

In The

Supreme Court of the United States

ROSE MARY KNICK,

Petitioner,

v.

TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.

Respondents.

On Petition For A Writ of Certiorari To

The United States Court Of Appeals

For the Third Circuit

BRIEF OF AMICUS CURIAE

THE NATIONAL ASSOCIATION OF HOME

BUILDERS IN SUPPORT OF PETITIONER

DEVALA A. JANARDAN*

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

djanardan@nahb.org

* Counsel of Record

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Amicus

National Association of Home Builders (NAHB)

states that it is a non-profit 501(c)(6) corporation

incorporated in the State of Nevada, with its

principal place of business in Washington, D.C.

NAHB has no corporate parents, subsidiaries or

affiliates, and no publicly traded stock. No publicly

traded company has a ten percent or greater

ownership interest in NAHB.

ii

TABLE OF CONTENTS

Page(s)

INTEREST OF AMICUS CURIAE ...................... 1

ARGUMENT ........................................................... 3

I.

THIS COURT SHOULD GRANT

CERTIORARI TO ESTABLISH

UNIFORMITY AMONG THE CIRCUITS

ON THE APPLICATION OF WILLIAMSON

COUNTY TO LAND USE CLAIMS.............. 3

II.

IN THE ABSENCE OF THIS COURT’S

GUIDANCE, LOWER COURTS ARE

CONFLICTED ON APPLICATION OF

WILLIAMSON COUNTY’S STATE

EXHAUSTION RULE TO

CONSTITUTIONAL CLAIMS,

INCLUDING DUE PROCESS

AND EQUAL PROTECTION ....................... 5

A.

The First, Seventh, and Tenth

Circuits Apply Williamson County’s

Exhaustion Requirement to Due

Process Land Use Claims .................... 7

B.

The Ninth and Second Circuits

are Unable to Apply Williamson

County in a Consistent and Fair

Manner to Due Process and

Equal Protection Claims ..................... 9

iii

TABLE OF CONTENTS (cont.)

Page(s)

C.

Government Entities Utilize

Williamson County to Evade Their

Constitutional Obligations ............... 12

CONCLUSION ..................................................... 14

iv

TABLE OF AUTHORITIES

Page(s)

Cases

A Helping Hand, LLC v. Baltimore Cty.,

515 F.3d 356 (4th Cir. 2008) ............................... 10

Agins v. City v. Tiburon, 447 U.S. 225 (1980) ......... 5

Arrigoni Enterprises, LLC v. Town of Durham,

136 S. Ct. 1409 (2016) ........................................... 4

B. Willis, C.P.A., Inc. v. BNSF Ry. Corp.,

531 F.3d 1282 (10th Cir. 2008) ............................. 9

Bateman v. City of West Bountiful,

89 F.3d 704 (10th Cir. 1996) ................................. 8

Carpinteria Valley Farms, Ltd. v. Cty. of

Santa Barbara, 344 F.3d 822 (9th Cir. 2003) .... 10

County Concrete Corp. v. Twp of Roxbury,

442 F.3d 159 (3d Cir. 2006) ............................. 9-10

Crown Point Dev., Inc. v. City of Sun Valley,

506 F.3d 851 (9th Cir. 2007) ............................... 10

Deniz v. Mun. of Guaynabo, 285 F.3d 142

(1st Cir. 2002) ........................................................ 8

Downing/Salt Pond Partners, L.P. v.

Rhode Island & Providence Plantations,

643 F.3d 16 (1st Cir. 2011) ................................... 8

First English Evangelical Lutheran Church

of Glendale v. Los Angeles,

482 U.S. 304 (1987) ............................................. 14

v

TABLE OF AUTHORITIES (cont.)

Page(s)

Forseth v. Village of Sussex, 199 F.3d 363

(7th Cir. 2000) ............................................ 7, 11-12

Guggenheim v. City of Goleta, 638 F.3d 111

(9th Cir. 2010) ..................................................... 11

Hoehne v. Cty.. of San Benito, 870 F.2d 529

(9th Cir. 1989) ..................................................... 10

J.B., Ranch, Inc. v. Grand Cty.,

958 F.2d 306 (10th Cir. 1992) ............................... 9

Kurtz v. Verizon New York, 758 F.3d 506

(2d Cir. 2014) .............................................. 3, 11-12

Lingle v. Chevron, 544 U.S. 528 (2005) ..........5, 6, 10

McKenzie v. City of White Hall, 112 F.3d 313

(8th Cir. 1997) ....................................................... 9

Murphy v. New Milford Zoning Comm’n,

402 F.3d 342 (2d Cir. 2005) ................................ 12

River Park, Inc. v. City of Highland Park,

23 F.3d 164 (7th Cir. 1994) ................................... 8

Rose Acre Farms, Inc. v. U.S., 559 F.3d 1260

(Fed. Cir. 2009).................................................... 10

San Remo Hotel, L.P. v. City and Cty. of San

Francisco, 545 U.S. 323 (2005) ............................. 6

Sansotta v. Town of Nags Head,

724 F.3d 533 (4th Cir. 2013) ............................... 13

Sherman v. Town of Chester, 752 F.3d 554

(2d Cir. 2014) ....................................................... 13

vi

TABLE OF AUTHORITIES (cont.)

Page(s)

Signature Properties Int’l Ltd. P’ship v.

City of Edmond, 310 F.3d 1258

(10th Cir. 2002) ..................................................... 9

Southview Associates, Ltd. v. Bongartz,

980 F.2d 84 (2d Cir. 1992) .................................. 12

Suitum v. Tahoe Reg’l Planning Agency,

520 U.S. 725 (1997) ............................................... 6

Surf and Sand, LLC v. City of Capitola,

717 F.Supp.2d 934 (N.D. Cal. 2010) ................... 11

Unity Ventures v. Cty. Of Lake, 841 F.2d 770

(7th Cir. 1988) ..................................................... 11

Villager Pond, Inc. v. Town of Darien,

56 F.3d 375 (2d Cir. 1995) .................................. 12

Williamson County Reg’l Planning Comm’n

v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ...................................... passim

Statutory and Constitutional Provision

42 U.S.C. § 1983 ..................................................... 10

Other

Michael M. Berger, The Ripeness Game:

Why Are We Still Forced to Play,

30 Touro L. Rev. 297 (2014) .................................. 6

Michael M. Berger & Gideon Kanner,

Shell Game! You Can’t Get There from Here:

Supreme Court Ripeness Jurisprudence in

Takings Cases at Long Last Reaches the

Self-Parody Stage, 36 Urb. Law. 671 (2004) ........ 4

vii

TABLE OF AUTHORITIES (cont.)

Page(s)

J. David Breemer, The Rebirth of Federal

Takings Review? The Courts’ Prudential

Answer to Williamson County’s Flawed

State Litigation Ripeness Requirement,

30 Touro L. Rev. 319 (2014) ................................ 14

John J. Delaney & Duane J. Desiderio, Who Will

Clean Up the “Ripeness Mess”? A Call for

Reform so Takings Plaintiffs Can Enter the

Federal Courthouse, 31 Urb. Law. 195 (1999) ..... 4

Nader James Khorassani, Must Substantive Due

Process Land Use Claims be so “Exhaust” ing?,

81 Fordham L. Rev. 409 (2012) ......................... 5-6

R.S. Radford & Jennifer Fry Thompson,

The Accidental Abstention Doctrine:

After Thirty Years, the Case for Diverting

Federal Takings Claims to State Court Under

Williamson County Has Yet to Be Made,

67 Baylor L. Rev. 567 (2015) ................................ 3

Gregory M. Stein, Regulatory Takings and

Ripeness in the Federal Courts,

48 Vand. L. Rev. 1 (1995).................................... 13

Petition for Writ of Certiorari, Rose Mary Knick

v. Twp of Scott, Pennsylvania, No, 17-647

(filed Oct. 31, 2017) ............................................ 3-4

1

INTEREST OF AMICUS CURIAE 1

The National Association of Home Builders (NAHB)

is a Washington, D.C.-based trade association whose

mission is to enhance the climate for housing and

the building industry. Chief among NAHB’s goals is

providing and expanding opportunities for all people

to have safe, decent, and affordable housing.

Founded in 1942, NAHB is a federation of more than

700 state and local associations. About one-third of

NAHB’s approximately 140,000 members are home

builders or remodelers.

NAHB is a vigilant advocate in the nation’s courts.

It frequently participates as a party litigant and

amicus curiae to safeguard the constitutional and

statutory rights and economic interests of its

members and those similarly situated.

NAHB members provide 80% of all homes

constructed in the United States; thus, NAHB

members have a vested interest in the application

and expansion of Williamson County’s state

exhaustion ripeness requirement. Williamson

County Reg’l Planning Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985).

Counsel of record for all parties received notice at least

10 days prior to the due date of amicus curiae’s intention to file

this brief. All parties have consented. No counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

1

2

The home building sector depends on clear

regulatory and legal processes that do not infringe

on constitutionally-protected property rights. The

ability of property owners to have their

constitutional claims heard predictably and

transparently is vital to the interest of NAHB’s

members. Unfortunately, this Court’s decision in

Williamson County has had the opposite effect; not

only confusing property owners but also creating

chaos between the federal circuits.

NAHB is disturbed that the federal circuits have

applied Williamson County in a manner that allows

municipalities to use procedural gamesmanship to

eliminate otherwise valid constitutional claims. This

process effectively eliminates any federal forum for

NAHB members to have their takings, due process,

and equal protection land use claims heard.

3

ARGUMENT

I.

THIS

COURT

SHOULD

GRANT

CERTIORARI

TO

ESTABLISH

UNIFORMITY AMONG THE CIRCUITS

ON THE APPLICATION OF WILLIAMSON

COUNTY TO LAND USE CLAIMS.

Over 30 years ago, this Court created a two-part

ripeness test applicable in whole to only one type of

claim: regulatory takings. Williamson County Reg’l

Planning Comm'n v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985); see e.g., Kurtz v. Verizon

New York, 758 F.3d 506, 514 (2d Cir. 2014) (In

Williamson County, this Court “did not reach any

issue of exhaustion” for any claims other than Fifth

Amendment Takings).

In Williamson County, the Court held that

regulatory takings litigants must meet two special

conditions before their claims ripen. First, the

plaintiff must show that the government’s decision

to take the property is final. Second, the plaintiff

must exhaust all available state remedies for

compensation. 473 U.S. at 191, 193. See also R.S.

Radford & Jennifer Fry Thompson, The Accidental

Abstention Doctrine: After Thirty Years, the Case for

Diverting Federal Takings Claims to State Court

Under Williamson County Has Yet to Be Made, 67

Baylor L. Rev. 567, 575 (2015).

As Petitioner correctly notes, Williamson County

has caused more conflict in federal takings litigation

than any other takings principle. Petition for Writ of

Certiorari at 2-4, Rose Mary Knick v. Twp of Scott,

4

Pennsylvania, No, 17-647 (filed Oct. 31, 2017). The

conflict is particularly prevalent with Williamson

County’s “state exhaustion” ripeness prong, which

serves as a lock to the courthouse door for takings

claims, “despite Williamson County’s assurances

that property owners are guaranteed access to court

at some point.” Arrigoni Enterprises, LLC v. Town of

Durham, Conn., 136 S. Ct. 1409 (2016) (Thomas, J.,

joined by Kennedy, J., dissenting from denial of

certiorari); See also John J. Delaney & Duane J.

Desiderio, Who Will Clean Up the “Ripeness Mess”?

A Call for Reform so Takings Plaintiffs Can Enter

the Federal Courthouse, 31 Urb. Law. 195 (1999);

Michael M. Berger & Gideon Kanner, Shell Game!

You Can’t Get There from Here: Supreme Court

Ripeness Jurisprudence in Takings Cases at Long

Last Reaches the Self-Parody Stage, 36 Urb. Law.

671 (2004).

Unfortunately, the application of Williamson County

by the lower courts is not limited to federal takings

claims. With no clarifying direction by this Court,

lower courts are understandably split over the

extent of Williamson County, including whether the

state exhaustion ripeness requirement applies to

substantive due process, procedural due process,

and equal protection land use claims. There is a dire

need for this Court to grant certiorari.

5

II. IN THE ABSENCE OF THIS COURT’S

GUIDANCE, LOWER COURTS ARE

CONFLICTED ON APPLICATION OF

WILLIAMSON

COUNTY’S

STATE

EXHAUSTION

RULE

TO

CONSTITUTIONAL CLAIMS, INCLUDING

DUE

PROCESS

AND

EQUAL

PROTECTION.

For well over a decade, it has been clear that Fifth

Amendment Takings claims are separate and

distinct from due process cases. Lingle v. Chevron,

544 U.S. 528 (2005). In Lingle, the Court determined

that the “substantially advances legitimate state

interests [test]” was not a proper takings standard.

Agins v. City v. Tiburon, 447 U.S. 255 (1980),

abrogated by Lingle at 542. By eliminating the

substantially advances test, the Court separated due

process claims from Fifth Amendment regulatory

takings claims.

In Lingle, this Court admitted the Agins means-ends

inquiry was one that “commingl[ed] of due process

and takings inquiries,” and that such “reliance on

due process precedents” has “no proper place in [our]

takings jurisprudence.” Id. at 529; see also

Williamson County, 473 U.S. 172, 197 (1995) (“The

remedy for a regulation that goes too far, under the

due process theory, is not ‘just compensation’, but

invalidation of the regulation[.]”). Certainly, “[a

takings] suit pursuing just compensation is entirely

irrelevant to the validity of land use regulations, and

has no effect on any facts relevant to [a due process]

claim.” Nader James Khorassani, Must Substantive

6

Due Process Land Use Claims be so “Exhaust” ing?,

81 Fordham L. Rev. 409, 443 (2012).

Perhaps not surprisingly, four of this Court’s

Justices voiced their concern that Williamson

County should be reevaluated in the same year as

the Lingle decision. San Remo Hotel, L.P. v. City and

County of San Francisco, 545 U.S. 323, 348-52

(2005) (Rehnquist, C.J., concurring); See also

Michael M. Berger, The Ripeness Game: Why Are We

Still Forced to Play, 30 Touro L. Rev. 297 n.13 (2014)

(commenting that descriptions of Williamson

County by lower courts include “unpleasant,”

“unfortunate,” “unclear,” “nonsense,” “draconian,”

and “Kafkaesque”)(citations omitted).

A decade afterward, this Court has done little to

clarify the reach of Williamson County to land use

constitutional claims other than federal takings.

Without guidance by this Court, the circuit split has

deepened over the applicability of Williamson

County exhaustion requirements to substantive due

process, procedural due process, and equal

protection claims. In particular, some lower courts

hold that Williamson’s exhaustion prong is

mandatory and extend it to due process and equal

protection land use claims. Other courts treat

Williamson County as rightly prudential, but this

results in a confusing set of inter- and intra-circuit

ripeness rules that are nigh impossible for a common

property owner to comprehend. See Suitum v. Tahoe

Reg’l Planning Agency, 520 U.S. 725, 733-34 (1997)

(referring to Williamson County’s “two independent

prudential hurdles to a regulatory takings claim

brought against a state entity in federal court.”).

7

Other courts hold that Williamson County’s

exhaustion prong does not apply to due process or

equal protection land use claims.

The circuit split is deep and ready for this Court’s

intervention.

A. The First, Seventh, and Tenth Circuits

Apply Williamson County’s Exhaustion

Requirement to Due Process Land Use

Claims.

The First, Seventh, and Tenth Circuits require

property owners to exhaust state remedies to ripen

substantive due process claims for federal court. In

Forseth v. Village of Sussex, the plaintiffs attempted

to develop a piece of property, but the village board

president who lived immediately adjacent

conditioned final approval upon a private

conveyance of a buffer strip from the plaintiffs to

him. 199 F.3d 363, 366 (7th Cir. 2000). The plaintiffs

conveyed the strip and subsequently brought a claim

in federal district court, claiming violations of

substantive due process, equal protection, and

takings. Id. at 367. Despite recognizing that

plaintiffs bringing substantive due process claims in

the land use context were not seeking just

compensation, the court nevertheless applied

Williamson County because the claim fell “within

the framework for takings claims.” Id. at 369. The

court held that Williamson County’s ripeness

requirements are nearly absolute, noting that “we

have yet to excuse any substantive due process

claim[s] in the land-use context . . . .” Id.

8

The Seventh Circuit’s stubborn refusal to allow due

process claims in federal court extends to procedural

due process. In River Park, Inc. v. City of Highland

Park, the court held that “a property owner may not

avoid Williamson by applying the label ‘substantive

due process’ to the claim …. So too with the label

‘procedural due process.’ Labels do not matter. A

person contending that state or local regulation of

the use of land has gone overboard must repair to

state court.” 23 F.3d 164, 167 (7th Cir. 1994).

The First Circuit applies exhaustion to substantive

due process claims. In Deniz v. Mun. of Guaynabo,

285 F.3d 142, 149 (1st Cir. 2002), the court refused

to hear a due process claim, noting that “[d]ressing

a takings claim in the raiment of a due process

violation does not serve to evade the exhaustion

requirement. Here as we have said, the inverse

condemnation remedy represents an arguably

available and adequate means of obtaining

compensation for the alleged taking. Thus, no

substantive due process claim will lie until that

remedy is exhausted.” Deniz, quoting Ochoa, 815

F.2d at 817 n.4; See also Downing/Salt Pond

Partners, L.P. v. Rhode Island and Providence

Plantations, 643 F.3d 16 (1st Cir. 2011) (noting that

the court has “held that a plaintiff cannot, [evade

Williamson County] merely by recasting its takings

claim in the raiment of a due process violation.”)

(citations omitted).

The Tenth Circuit likely requires exhaustion, noting

that due process or equal protection claims must

satisfy Williamson County if the claims “rest upon

the same facts as a concomitant takings claim.”

9

Bateman v. City of West Bountiful, 89 F.3d 704 (10th

Cir. 1996). In Signature Properties Int’l Ltd. P’ship

v. City of Edmond, the plaintiff did not bring a Fifth

Amendment Takings claim; yet, the court applied

Williamson County and ruled that the plaintiff’s

substantive due process arbitrary and capricious

claim was unripe. 310 F.3d 1258 (10th Cir. 2002).

See also, J.B., Ranch, Inc. v. Grand County, 958 F.2d

306, 308 (10th Cir. 1992) (applying Williamson

County to plaintiff’s substantive due process claim

because the facts of the case “fit squarely within the

analysis developed in just compensation cases.”); B.

Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d

1282, 1298 n.19 (10th Cir. 2008) (“this court has held

that, ‘where the property interest in which a plaintiff

asserts a right to procedural due process is

coextensive with the asserted takings claim,’

Williamson County’s ripeness principle still

applies.”).

B. The Ninth and Second Circuits are

Unable to Apply Williamson County in a

Consistent and Fair Manner to Due

Process and Equal Protection Claims.

Several federal courts have determined that due

process and equal protection claims were ripe even

though related takings claims were not ripe under

Williamson County. These courts distinguish

between a property owner’s takings claim and other

constitutional claims by holding that due process

and equal protection claims are only subject to

Williamson County’s administrative finality prong.

See, e.g., McKenzie v. City of White Hall, 112 F.3d

313 (8th Cir. 1997); County Concrete Corp. v. Twp of

10

Roxbury, 442 F.3d 159, 168-169 (3d Cir. 2006) (“The

absence of ‘just compensation’ is not part of a due

process or equal protection injury”). Not all courts,

however, have been so clear.

An examination of Ninth Circuit jurisprudence is a

prime example of how courts have been unable to

apply Williamson County in a consistent and

principled way. The Ninth Circuit has recognized

that Lingle forecloses the ability of federal courts to

hold that Fifth Amendment takings claims absorb

other constitutional claims, like due process, in

property rights cases. Crown Point Dev., Inc. v. City

of Sun Valley, 506 F.3d 851 (9th Cir. 2007); see also,

A Helping Hand, LLC v. Baltimore Cty., MD., 515

F.3d 356, 369 n.6 (4th Cir. 2008); Rose Acre Farms,

Inc. v. U.S., 559 F.3d 1260, 1277 (Fed. Cir. 2009).

Here, the court explained that “Lingle pulls the rug

out from under our rationale for totally precluding

substantive due process claims based on arbitrary or

unreasonable conduct.” Crown Point at 855.

However, it is not clear whether the Ninth Circuit

requires exhaustion for due process and equal

protection claims. See e.g., Hoehne v. Cty. of San

Benito, 870 F.2d 529, 532 (9th Cir. 1989) (holding

that Williamson County’s finality requirement

applies to due process and equal protection, but not

commenting similarly on exhaustion.); but see

Carpinteria Valley Farms, Ltd. v. County of Santa

Barbara, 344 F.3d 822, 831 (9th Cir. 2003) (there are

“certain limited and appropriate circumstances”

where 42 U.S.C. § 1983 claims may be ripe even

when related Fifth Amendment Takings claims are

unripe). More recently, a federal district court has

11

held that “it would be illogical to require a plaintiff

to seek compensation in state proceedings for a due

process violation, because such violations, if proven,

are not remedied by ‘compensation.’” Surf and Sand,

LLC v. City of Capitola, 717 F.Supp.2d 934 (N.D.

Cal. 2010); See also Guggenheim v. City of Goleta,

638 F.3d 111 (9th Cir. 2010) (commenting that

“Williamson is the law by which we are bound” but

“[w]ith all due respect [to this Court], we do not

think the Constitution requires [an exhaustion

requirement].”)

Other Circuits mirror the Ninth Circuit in the

ambiguity of whether substantive due process,

procedural due process, and equal protection 2 claims

are subject to Williamson County’s exhaustion

requirement.

For example, the Second Circuit admittedly applies

a complex set of rules to determine whether

constitutional claims are subject to any of

Williamson County’s requirements. Kurtz v. Verizon

New York, Inc., 738 F.3d 506, 514 (2d Cir. 2014).

(“After Williamson County, courts have attempted to

2

Even the Seventh Circuit, which applies a bright line

state exhaustion rule to due process claims, is less confident

with equal protection claims. See Forseth at 371. (holding that

the plaintiff’s equal protection claim was not subject to

Williamson County in the land use context when the plaintiff

can show “circumstances . . . that sufficiently suggest that the

plaintiff has not raised just a single takings claim with

different disguises”); But see Unity Ventures v. Cty. Of Lake,

841 F.2d 770, 774-75 (7th Cir. 1988) (holding that Williamson

County “applies as well to equal protection and due process

claims” in land use cases).

12

settle questions of ripeness in the several contexts of

due process claims: substantive or procedural;

substantive claims alleging regulatory overreach or

those alleging arbitrary and capricious conduct;

claims arising from the same nucleus of fact as a

takings claim, or not; and regulatory or physical

takings. Myriad permutations can result.”).

In Southview Associates, Ltd. v. Bongartz, the

Second Circuit held that substantive due process

claims alleging regulatory overreach must satisfy

both the finality and exhaustion prongs of

Williamson County. 980 F.2d 84, 96 (2d Cir. 1992).

However, claims alleging arbitrary and capricious

conduct by the government must only meet

Williamson County’s finality requirement, not

exhaustion. Id. at 97; see also Villager Pond, Inc. v.

Town of Darien, 56 F.3d 375, 381 (2d Cir. 1995). At

the same time, the Second Circuit further confuses

the issue by holding that Williamson County “has

been extended to equal protection and due process

claims asserted in the context of land use

challenges.” Kurtz at 515, citing Murphy v. New

Milford Zoning Comm’n, 402 F.3d 342, 349-50 (2d

Cir. 2005).

C. Government

Entities

Utilize

Williamson County to Evade Their

Constitutional Obligations.

Due to the confusion caused by Williamson County,

defendant governments bob and weave through

Williamson County’s ripeness maze, allowing them

to evade liability for takings, due process, and equal

protection claims. The typical defendants in a land

13

use case “are municipal bodies, often at the local

level, that are inherently slow moving and that

possess numerous incentives to delay their final

decisions.” Gregory M. Stein, Regulatory Takings

and Ripeness in the Federal Courts, 48 Vand. L. Rev.

1, 45 (1995).

In a few instances, courts catch on. In Sherman v.

Town of Chester, the locality used delay tactics for

over 10 years, forcing a developer to spend $5.5

million on top of the $2.7 million purchase price in

his attempts to obtain a subdivision approval. 752

F.3d 554 (2d Cir. 2014). The gamesmanship by the

locality continued into the courtroom. In 2007,

Sherman filed suit in federal court. The Town made

a motion to dismiss based on Williamson County and

Sherman voluntarily withdrew the case. Once

Sherman brought a claim in state court, the Town

removed the case back to federal court, where it

moved again to dismiss in part on ripeness grounds.

The Second Circuit recognized the absurdity

throwing out a federal takings claim under

Williamson County ripeness rules when the

government removes a case to federal court. The

Second Circuit, relying a Fourth Circuit case, held

that “refusing to apply the state-litigation

requirement in this instance ensures that a state or

its political subdivision cannot manipulate litigation

to deny a plaintiff a forum for his claim.” Sherman

at 564, citing Sansotta v. Town of Nags Head, 724

F.3d 533 (4th Cir. 2013).

Unfortunately, government defendants are often

successful in dismissing cases after removing them

14

from state to federal court. The litigation landscape

is littered with cases that have been removed from

state court to federal court, only to be dismissed

under Williamson County. See, e.g., J. David

Breemer, The Rebirth of Federal Takings Review?

The Courts’ Prudential Answer to Williamson

County’s Flawed State Litigation Ripeness

Requirement, 30 Touro L. Rev. 319, 335 n.79 (2014)

(providing numerous examples of cases dismissed

under Williamson County after defendant removed

case from state to federal court).

It should not be that a case that is fully ripe in state

court suddenly becomes unripe the moment a

government defendant removes the case from state

to federal court. Home builders and all other

property owners deserve more constitutional

certainty than this.

CONCLUSION

The Court should no longer delay its reconsideration

of the exhaustion of state remedies rule. When this

Court decided Williamson County in 1985, modern

takings jurisprudence was in its infancy. Indeed,

only after Williamson, in First English Evangelical

Lutheran Church of Glendale v. Los Angeles, 482

U.S. 304 (1987), did this Court even decide that

monetary compensation was the self-effecting

remedy required by the Takings Clause. Since then,

the contours of the Fifth Amendment’s substantive

protections have been analyzed by this Court, but

the most fundamental jurisdiction question – “Can a

federal court decide a federal takings, due process,

or equal protection land use claim?” – remains

15

unanswered. The confusion caused by Williamson

County is vast and requires this Court’s

intervention. Amicus urges the Court to grant

certiorari.

Dated: December 4, 2017

DEVALA A. JANARDAN*

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8200

djanardan@nahb.org

* Counsel of Record