Amicus Curiae Brief — David Parsons Demarest, Petitioner v. Town of Underhill, Vermont, et al.

No. 22-1098

In The

Supreme Court of the United States

____________________

DAVID P. DEMAREST,

Petitioner,

v.

TOWN OF UNDERHILL,

a municipality and charter town, et al.,

Respondents.

____________________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Second Circuit

____________________

BRIEF AMICI CURIAE OF

PACIFIC LEGAL FOUNDATION AND

OWNERS’ COUNSEL OF AMERICA

IN SUPPORT OF PETITIONER

____________________

ROBERT H. THOMAS

Pacific Legal Foundation

555 Capitol Mall, Ste. 1290

Sacramento, CA 95814

(916) 419-7111

RThomas@pacificlegal.org

Counsel for Amici Curiae

Pacific Legal Foundation

and Owners’ Counsel of

America

i

QUESTIONS PRESENTED

The Court of Appeals refused to give retroactive

effect to this Court’s landmark decision in Knick v.

Township of Scott, 139 S.Ct. 2162 (2019), which

opened the federal courts to constitutional property

litigation for the first time in 34 years. Compounding

that error, the Court of Appeals refused to grant

rehearing to consider the impact of the then pending

decision in Wilkins v. United States, 143 S.Ct. 870

(2023), which ended up restricting the impact of

statutes of limitation. In combination, the Court of

Appeals’ refusal to apply this Court’s current law

deprived Petitioner of property without just

compensation and due process of law.

The questions presented are:

1. When Knick changed the world of takings

litigation by allowing—for the first time since 1985—

a property owner with a claim for unconstitutional

taking of property to file suit in federal court, must

that decision be applied retroactively, with the time to

file suit tolled until the date Knick was decided, so as

to give its benefit to property owners who had been

precluded from suing in federal court before?

2. When Wilkins confirmed in the real property

context that statutes of limitation are not

jurisdictional but are merely claim processing tools,

must lower courts now treat statutes of limitation as

affirmative defenses to be proved at trial by the

defendant?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ..................................... iii

IDENTITY AND INTEREST OF

AMICI CURIAE ....................................................... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT.................................. 2

REASONS FOR GRANTING THE PETITION ......... 4

I.

KNICK REOPENED THE FEDERAL

COURTHOUSE DOORS WRONGLY

CLOSED BY WILLIAMSON COUNTY .......... 4

II.

COURTS MUST BE EXTRAORDINARILY

CAREFUL WHEN CATEGORICALLY

BARRING THE SELF-EXECUTING

RIGHT TO JUST COMPENSATION.............. 6

III. GOVERNMENTS AND LOWER COURTS

NEED REMINDING THAT FEDERAL

COURTS ARE OPEN TO TAKINGS

CLAIMS ............................................................ 8

CONCLUSION.......................................................... 12

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Albery v. Reddig,

718 F.2d 245 (7th Cir. 1983) ............................... 10

Arkansas Game & Fish Comm’n v.

United States,

568 U.S. 23 (2012) ................................................. 2

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021) ........................................ 1, 7

Chevron Oil Co. v. Huson,

404 U.S. 97 (1971) ............................................. 5, 8

Demarest v. Town of Underhill,

No. 2:21-cv-167, 2022 WL 911146

(D. Vt. Mar. 29, 2022) ............................................ 3

Dodd v. Hood River Cnty.,

136 F.3d 1219 (9th Cir. 1998) ............................... 9

Dolan v. City of Tigard,

512 U.S. 374 (1994) ............................................... 6

EHOF Lakeside II, LLC v. Riverside

Cnty. Transp. Comm’n,

826 F.App’x 669 (9th Cir. 2020) .......................... 10

First English Evangelical Lutheran

Church of Glendale v.

Los Angeles Cnty.,

482 U.S. 304 (1987) ............................................... 7

Flanigan’s Enters. v. Fulton Cnty.,

596 F.3d 1265 (11th Cir. 2010) ........................... 11

iv

Gearing v. City of Half Moon Bay,

54 F.4th 1144 (9th Cir. 2022)

(cert. petition filed, docket no.

pending) (June 1, 2023)) ...................................... 10

Harper v. Virginia Dep’t of Taxation,

509 U.S. 86 (1993) ................................................. 5

Hoehne v. Cnty. of San Benito,

870 F.2d 529 (9th Cir. 1989) ............................... 10

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ............................................... 1

James B. Beam Distilling Co. v.

Georgia,

501 U.S. 529 (1991) ............................................... 5

Janus v. Am. Fed’n of State, Cnty. &

Mun. Emps.,

138 S.Ct. 2448 (2018) ............................................ 2

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) ......................... i, 1, 3–10, 12

Koontz v. St. Johns River

Water Mgmt. Dist.,

570 U.S. 595 (2013) ............................................... 1

Monongahela Navigation Co. v.

United States,

148 U.S. 312 (1893) ............................................... 7

Murr v. Wisconsin,

582 U.S. 383 (2017) ............................................... 1

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ............................................... 1

Obergefell v. Hodges,

576 U.S. 644 (2015) ............................................... 2

v

Ocean Palm Golf Club P’ship v.

City of Flagler Beach,

861 F.App’x 368 (11th Cir. 2021) .................... 3, 12

Pakdel v. City and Cnty. of

San Francisco,

141 S.Ct. 2226 (2021) .................................. 1, 9, 10

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ........................................... 1, 8

Phelps v. United States,

274 U.S. 341 (1927) ............................................... 7

Railroad Commission of Texas v.

Pullman Co.,

312 U.S. 496 (1941) ............................................. 10

Ralston v. San Mateo Cnty.,

No. 21-16489, 2022 WL 16570800

(9th Cir. Nov. 1, 2022) ......................................... 11

Raskiewicz. v. Town of New Boston,

754 F.3d 38 (1st Cir. 1985) .................................. 10

Sackett v. EPA,

No. 21-454, 2023 WL 3632751

(U.S. May 25, 2023) ............................................... 1

San Remo Hotel, L.P. v. City & Cnty. of

San Francisco,

545 U.S. 323 (2005) ................................... 3, 11–12

Scott v. Greenville Cnty.,

716 F.2d 1409 (4th Cir. 1983) ............................. 10

Spence v. Zimmerman,

873 F.2d 256 (11th Cir. 1989) ............................... 9

Suitum v. Tahoe Reg’l Plan. Agency,

520 U.S. 725 (1997) ............................................... 1

vi

Tejas Motel, L.L.C. v. City of Mesquite,

63 F.4th 323 (5th Cir. 2023) ............................ 3, 12

Tyler v. Hennepin Cnty.,

No. 22-166, 2023 WL 3632754

(U.S. May 25, 2023) ........................................... 1, 6

United States v. Clarke,

445 U.S. 253 (1980) ............................................... 7

Wilkins v. United States,

143 S.Ct. 870 (2023) ....................................... i, 1, 8

Williamson Cnty. Reg’l Planning Agency

v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ..................................... 3–6, 10

United States Constitution

U.S. Const. amend. V.............................................. 3–7

Statute

42 U.S.C. § 1983 .......................................................... 9

Rules

S. Ct. R. 37.2 ............................................................... 1

S. Ct. R. 37.6 ............................................................... 1

Other Authorities

Beaton, Laura D. & Zinn, Matthew D.,

Knick v. Township of Scott:

A Source of New Uncertainty for

State and Local Governments in

Regulatory Takings Challenges to

Land Use Regulation,

47 Fordham Urb. L.J. 623 (2020).......................... 9

vii

Beswick, Samuel,

Retroactive Adjudication,

130 Yale L.J. 276 (2020) ........................................ 2

Boden, Anastasia, et al.,

The Land Use Labyrinth: Problems

of Land Use Regulation and the

Permitting Process, released by the

Regulatory Transparency Project of

the Federalist Society (Jan. 8, 2020),

https://regproject.org/wpcontent/uploads/RTP-State-andLocal-Working-Group-Paper-LandUse.pdf ................................................................. 11

Ely, James W., The Guardian of Every

Other Right: A Constitutional

History of Property Rights

(3d ed. 2008)........................................................... 2

Hodges, Brian T.,

Knick v. Township of Scott, PA: How

a Graveyard Dispute Resurrected the

Fifth Amendment’s Takings Clause,

60 Santa Clara L. Rev. 1 (2020) ............................ 4

Tribe, Laurence H.,

1 American Constitutional Law

(3d ed. 2000)........................................................... 7

1

IDENTITY AND INTEREST

OF AMICI CURIAE 1

Pacific Legal Foundation (PLF) is a nonprofit, taxexempt corporation organized for the purpose of

litigating matters affecting the public interest in

private property rights, individual liberty, and

economic freedom. Founded over 50 years ago, PLF is

the most experienced legal organization of its kind.

PLF attorneys have participated as lead counsel in

numerous landmark cases to defend the right to make

reasonable use of property and the corollary right to

obtain just compensation when that right is infringed.

See, e.g., Tyler v. Hennepin Cnty., No. 22-166, 2023

WL 3632754 (U.S. May 25, 2023); Sackett v. EPA, No.

21-454, 2023 WL 3632751 (U.S. May 25, 2023);

Wilkins v. United States, 143 S.Ct. 870 (2023); Cedar

Point Nursery v. Hassid, 141 S. Ct. 2063 (2021);

Pakdel v. City and Cnty. of San Francisco, 141 S.Ct.

2226 (2021); Knick v. Twp. of Scott, 139 S.Ct. 2162

(2019); Murr v. Wisconsin, 582 U.S. 383 (2017); Koontz

v. St. Johns River Water Mgmt. Dist., 570 U.S. 595

(2013); Palazzolo v. Rhode Island, 533 U.S. 606 (2001);

Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725

(1997); Nollan v. California Coastal Comm’n, 483 U.S.

825 (1987). PLF also routinely participates in

important property rights cases as amicus curiae. See,

e.g., Horne v. Dep’t of Agric., 576 U.S. 350 (2015);

1 Pursuant to Rule 37.2, PLF provided timely notice to all parties.

Pursuant to Rule 37.6, amici curiae affirm that no counsel for

any 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

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

Arkansas Game & Fish Comm’n v. United States, 568

U.S. 23 (2012).

Owners’ Counsel of America (OCA) is a national

not-for-profit organization of lawyers dedicated to the

principle that the right to own and use property is “the

guardian of every other right” and the basis of a free

society. See James W. Ely, The Guardian of Every

Other Right: A Constitutional History of Property

Rights (3d ed. 2008). OCA’s invitation-only members

work to advance, preserve, and defend private

property rights in eminent domain, inverse, and

regulatory taking cases. OCA member attorneys have

been involved in landmark property law cases in

nearly every jurisdiction nationwide, including in this

Court. They have also published widely in the area of

eminent domain and property rights. As lawyers on

the front lines of eminent domain and property rights

law, OCA brings a unique perspective to this case.

OCA understands not only takings jurisprudence, but

the practical application of takings law to the myriad

of factual circumstances that often drive decisions and

legal precedent.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The case at bar, along with several of this Court’s

recent decisions, have “reignited the retroactivity

debate” about whether a rule announced by this Court

applies only to future cases, or also to disputes arising

in the past. Samuel Beswick, Retroactive

Adjudication, 130 Yale L.J. 276, 279–80 (2020) (citing

Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., 138

S.Ct. 2448 (2018), overruling Abood v. Detroit Bd. of

Educ., 431 U.S. 209 (1977); Obergefell v. Hodges, 576

U.S. 644, 675 (2015)). Between 1985 and 2019, the

3

“state procedures” ripeness rule wrongly barred

property owners from raising their federal civil rights

takings claims in federal court. See Williamson Cnty.

Reg’l Planning Agency v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985). In Knick, this Court did not

announce a new rule opening federal courts to Fifth

Amendment civil rights claims for the first time.

Rather, the Court righted the ship that Williamson

County had upended, restoring property rights to a

procedural status on equal footing with other

constitutional and civil rights. Knick, 139 S.Ct. 2162.

The district court ignored Knick because Petitioner

had litigated his claim against the Town in state

court, even though Williamson County gave him no

other choice of forum, and he was limited by Vermont

law to abuse-of-discretion review. The courts below

assumed that because “a state court is fully competent

to adjudicate federal constitutional claims,” it is of no

constitutional moment today whether Petitioner

voluntarily brought his federal claims in state court,

or whether he was forced to do so. Demarest v. Town

of Underhill, No. 2:21-cv-167, 2022 WL 911146 (D. Vt.

Mar. 29, 2022). The Second Circuit refused to apply

Knick retroactively, treating the now-overruled

Williamson County rule as a jurisdictional bar. Pet.

App. 7.

This petition and other decisions of the Courts of

Appeals add property rights to the unsettled

retroactivity question in need of this Court’s

attention. See Tejas Motel, L.L.C. v. City of Mesquite,

63 F.4th 323, 334 (5th Cir. 2023) (the San Remo

“Catch-22” applies to claimants who were forced to file

their takings claims in state court when the

Williamson County rule was in effect); Ocean Palm

4

Golf Club P’ship v. City of Flagler Beach, 861 F.App’x

368, 371 (11th Cir. 2021) (res judicata bars property

owners forced by Williamson County into state courts

from raising takings claims in federal court, despite

Knick).

Amici curiae make three main points. First, the

usual limitations governing when a new rule of law

announced by this Court applies retroactively must be

tempered, because Knick did not impose a new rule,

but rebalanced what Williamson County had made

wrong. Second, the self-executing nature of the Just

Compensation Clause requires a remedy for takings,

and cuts against rigid application of legislative

restrictions—such as statutes of limitations—on the

ability of injured owners to seek compensation.

Finally, this Court should be eliminating procedural

barriers to consideration of property rights claims on

the merits, including the crabbed reading the courts

below gave the statute of limitations.

The petition should be granted.

REASONS FOR GRANTING THE PETITION

I. KNICK REOPENED THE FEDERAL

COURTHOUSE DOORS WRONGLY

CLOSED BY WILLIAMSON COUNTY

This Court’s decision in Knick, 139 S.Ct. 2162

(2019), indeed represented a “sea change” in the

availability of a federal court forum for federal civil

rights claims seeking vindication of the fundamental

right of private property ownership. See Brian T.

Hodges, Knick v. Township of Scott, PA: How a

Graveyard

Dispute

Resurrected

the

Fifth

Amendment’s Takings Clause, 60 Santa Clara L. Rev.

1, 3 (2020) (“[Knick] marks a sea change in the U.S.

5

Supreme Court’s interpretation of the Fifth

Amendment and promises to have a significant impact

on the development of takings law and litigation

practices nationwide[.]”). Most critically, the Court did

not announce a new rule of law but simply overruled

a bad one. Knick therefore did not represent a novel

direction in the law, but a return to stasis. The

decision reopened the federal courthouse doors that

Williamson County had wrongly slammed shut and

represented a return to the status quo ante

Williamson. It was a step in the direction of restoring

the right to private property to its coequal status with

other civil rights.

Consequently, the usual limiting tests to

determine the retroactivity of a newly announced civil

decision—a question that has sharply divided this

Court—should not be applied rigidly here. Compare

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

535 (1991) (opinion of Souter, J., joined by Stevens, J.)

(presumption of non-retroactivity), with Harper v.

Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993) (this

Court’s rulings on federal law “must be given full

retroactive effect in all cases still open on direct

review and as to all events”). Moreover, the

longstanding rule about whether a new decision is

applied retroactively is primarily a matter of equity

should govern here. See Chevron Oil Co. v. Huson, 404

U.S. 97, 106 (1971) (“Finally, we have weighed the

inequity imposed by retroactive application, for

‘[w]here a decision of this Court could produce

substantial

inequitable

results

if

applied

retroactively, there is ample basis in our cases for

avoiding the ‘injustice or hardship’ by a holding of

nonretroactivity.’”) (citation omitted). Williamson

County’s state-procedures ripeness rule—not the rule

6

that preceded it—was the actual radical departure

from equal treatment for all civil rights claimants. See

Knick, 139 S.Ct. at 2169–70 (“The state-litigation

requirement relegates the Takings Clause ‘to the

status of a poor relation’ among the provisions of the

Bill of Rights.”) (quoting Dolan v. City of Tigard, 512

U.S. 374, 392 (1994)). It was Williamson County, not

Knick, that announced a “new” rule—a rule that

should never have been imposed in the first place. Id.

at 1270 (“Fidelity to the Takings Clause and our cases

construing it requires overruling Williamson County

and restoring takings claims to the full-fledged

constitutional status the Framers envisioned when

they included the Clause among the other protections

in the Bill of Rights.”) (emphasis added).

II.

COURTS MUST BE EXTRAORDINARILY

CAREFUL WHEN CATEGORICALLY

BARRING THE SELF-EXECUTING RIGHT

TO JUST COMPENSATION

The

self-executing

nature

of

the

Just

Compensation Clause requires a remedy for takings

even where one is not prescribed by law, and this fact

weighs heavily against a court’s rigid application of

legislative restrictions—e.g., statutes of limitations-on the ability of injured owners to seek

constitutionally-mandated compensation. This is the

plain meaning of the Fifth Amendment’s fundamental

limitation

on

sovereign

power—that

when

government takes private property for public use, it

must compensate. This Court has repeatedly

emphasized this, including in this most recent term.

See Tyler v. Hennepin Cnty., No. 22-166, 2023 WL

3632754, at *4 (U.S. May 25, 2023) (states do not have

entirely free rein to define what “private property” in

7

the Fifth Amendment refers to); Cedar Point, 141

S.Ct. at 2077 (government’s obligation to compensate

owners when it takes property is not an “empty

formality, subject to modification at the government’s

pleasure”); Phelps v. United States, 274 U.S. 341, 343

(1927) (“Under the Fifth Amendment plaintiffs were

entitled to just compensation, and ... the claim is one

founded on the Constitution.”).

This Court consistently describes the Just

Compensation Clause as “self-executing,” meaning

that government is obligated to provide—and

property owners are entitled to seek—just

compensation without invoking any particular statute

or state court procedures. See, e.g., Knick, 139 S.Ct. at

2171; United States v. Clarke, 445 U.S. 253, 257

(1980). In other words, the Constitution “of its own

force” … “furnish[es] a basis for a court to award

money

damages

against

the

government,”

notwithstanding sovereign immunity. First English

Evangelical Lutheran Church of Glendale v. Los

Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (quotation

omitted). See also 1 Laurence H. Tribe, American

Constitutional Law § 6-38, at 1272 (3d ed. 2000)

(observing, based on First English, that the Takings

Clause “trumps state (as well as federal) sovereign

immunity”).

As this Court holds, the question of what

compensation is “just” is a uniquely judicial decision,

not subject to determination by the legislature. See

Monongahela Navigation Co. v. United States, 148

U.S. 312, 327 (1893):

The legislature may determine what private

property is needed for public purposes; that is a

question of a political and legislative character.

8

But when the taking has been ordered, then the

question of compensation is judicial. It does not

rest with the public, taking the property

through Congress or the legislature, its

representative, to say what compensation shall

be paid, or even what shall be the rule of

compensation.

Statutes

of

limitations—arbitrary

legislative

limitations on the validity of claims—are therefore in

direct tension with this Court’s admonition that there

is no “expiration on the Takings Clause.” Palazzolo v.

Rhode Island, 533 U.S. 606, 627 (2001) (“Future

generations, too, have a right to challenge

unreasonable limitations on the use and value of

land.”). Any restrictions on the self-executing right to

compensation must be viewed through an

extraordinarily careful lens, especially when applying

statutes of limitations, which wipe out even

constitutional claims based merely on the passage of

time. As this Court recently emphasized in Wilkins,

applying statutes of limitations mechanically to

categorically bar a claim (as the courts below did here)

should in general be avoided. Wilkins, 143 S.Ct. at

872. This rule is even more critical where, as here, a

judicially created statute of limitations is applied

rigidly, so that a “self-executing” constitutional claim

is forever lost without any consideration of the

circumstances and equity. See Huson, 404 U.S. at 106.

III. GOVERNMENTS AND LOWER COURTS

NEED REMINDING THAT FEDERAL

COURTS ARE OPEN TO TAKINGS CLAIMS

This petition does not stand in isolation and must

be viewed as part of a larger picture. After Knick

knocked out the requirement to pursue state

9

procedures and reopened the federal courts to takings

claims, governments did not go quietly into that good

night. Instead, they have been crafting new strategies

and are actively searching for ways to continue to

dodge federal court review. See, e.g., Laura D. Beaton

& Matthew D. Zinn, Knick v. Township of Scott: A

Source of New Uncertainty for State and Local

Governments in Regulatory Takings Challenges to

Land Use Regulation, 47 Fordham Urb. L.J. 623, 625

(2020) (After Knick, the authors—government

lawyers—advocate to make use of “several tools,” “to

try to force claims, in whole or in part, back into state

courts.”). These strategies seek to avoid federal court

review of takings claims and retrench the procedural

barriers to federal court review of federal takings

claims this Court has been addressing and

eliminating. See Knick, 139 S.Ct. at 2170 (“And the

property owner may sue the government at that time

in federal court for the ‘deprivation’ of a right ‘secured

by the Constitution.’”) (quoting 42 U.S.C. § 1983);

Pakdel, 141 S.Ct. at 2230 (only “de facto” ripeness is

necessary and presents the same “relatively modest”

requirement applicable to other civil rights claims).

And the lower courts continue to go along,

accepting the old trope that it is somehow beneath the

dignity of federal judges to consider cases in which a

claimant is seeking to vindicate the civil right of

private property ownership. See, e.g., Dodd v. Hood

River Cnty., 136 F.3d 1219, 1230 (9th Cir. 1998)

(federal courts do not sit as “super zoning boards”)

(citation omitted); Spence v. Zimmerman, 873 F.2d

256, 262 (11th Cir. 1989) (“We stress that federal

courts do not sit as zoning boards of review and should

be most circumspect in determining that

constitutional rights are violated in quarrels over

10

zoning decisions.”); Hoehne v. Cnty. of San Benito, 870

F.2d 529, 532 (9th Cir. 1989) (federal appeals courts

were not created to be “the Grand Mufti of local zoning

boards”); Raskiewicz. v. Town of New Boston, 754 F.3d

38, 44 (1st Cir. 1985) (“this court has repeatedly said

that federal courts do not sit as a super zoning board

or a zoning board of appeals”); Albery v. Reddig, 718

F.2d 245 (7th Cir. 1983) (federal appeals court should

not become accustomed to idea that constitutional

rights are implicated in quarrel over zoning rules);

Scott v. Greenville Cnty., 716 F.2d 1409 (4th Cir. 1983)

(federal courts are reluctant to act in cases where

government claims they are sitting as zoning boards

of appeal). That game is still afoot, even though Knick

eliminated the requirement to chase state procedures

beyond a relatively modest decision applying the

offending regulations to the claimant’s property. And

Pakdel called into serious question Williamson

County’s “final decision” ripeness requirement. Since

then, governments have been searching relentlessly

for the “new” Williamson County.

First, federal courts are being urged to

prudentially abstain under Railroad Commission of

Texas v. Pullman Co., 312 U.S. 496, 498 (1941). One

example: the Ninth Circuit approved of Pullman

abstention to avoid ruling on a federal regulatory

takings claim after the government filed a state court

eminent domain action, on the grounds that land use

planning is “a sensitive area of social policy.” See, e.g.,

Gearing v. City of Half Moon Bay, 54 F.4th 1144, 1150

(9th Cir. 2022) (cert. petition filed, docket no. pending)

(June 1, 2023)). See also EHOF Lakeside II, LLC v.

Riverside Cnty. Transp. Comm’n, 826 F.App’x 669 (9th

Cir. 2020). These courts never explain why questions

of land use are more “sensitive” where local

11

regulations are alleged to infringe on property rights,

than when those same regulations infringe on some

other constitutional right. See, e.g., Flanigan’s Enters.

v. Fulton Cnty., 596 F.3d 1265 (11th Cir. 2010)

(challenging ordinance prohibiting alcohol sales at

nude dancing establishments).

Next, the “final decision” requirement is not being

applied “modestly” in a search for de facto ripeness—

as in every other civil rights case—but as de facto

exhaustion. See, e.g., Ralston v. San Mateo Cnty., No.

21-16489, 2022 WL 16570800, at *2 (9th Cir. Nov. 1,

2022) (rejecting as unripe a takings claim because the

County’s decision informing the owners that no

development is allowed on their property was merely

the Planning Director’s “personal opinion”). See also

Anastasia Boden, et al., The Land Use Labyrinth:

Problems of Land Use Regulation and the Permitting

Process, released by the Regulatory Transparency

Project of the Federalist Society 21 (Jan. 8, 2020),

https://regproject.org/wp-content/uploads/RTP-Stateand-Local-Working-Group-Paper-Land-Use.pdf.

(concluding that nationwide “there is always the

potential for a [land use] authority to, in effect, deny

authorization to begin a project indefinitely without

ever giving a definitive answer on a permit

application”). Wielding their discretion as weapons,

land use regulators “can effectively move the

goalposts with ever-new demands for redesign after

redesign. ... This can be maddening for an individual

trying to navigate the system on his own. But it’s

frustrating even with outside help.” Id. at 22.

Finally, as in the case at bar, the preclusion trap

from San Remo Hotel, L.P. v. City & Cnty. of San

Francisco, 545 U.S. 323 (2005), continues to be

12

employed. See, e.g., Tejas Motel, 63 F.4th at 334 (“San

Remo is still good law.”); Ocean Palm Golf Club P’ship,

861 F.App’x at 371 (“The Knick Court did not overrule

or otherwise modify its precedent in San Remo.”).

CONCLUSION

The writ of certiorari should be granted.

DATED: June 2023.

Respectfully submitted,

ROBERT H. THOMAS

Pacific Legal Foundation

555 Capitol Mall, Ste. 1290

Sacramento, CA 95814

(916) 503-9063

RThomas@pacificlegal.org

Counsel for Amici Curiae

Pacific Legal Foundation

and Owners’ Counsel of

America