Opposition Brief — Braun v. Ann Arbor Charter Township (No. 08-250)

No. 08-250

(4) uprene Cots, UG.”

FILED

IN THE

Supreme Court of the United States

CHARLES and CATHERINE BRAUN, husband and wife,

and EDWARD and MURIEL PARDON, husband and wife,

Petitioners

v.

ANN ARBOR CHARTER TOWNSHIP

Respondent.

On PETITION FOR A Writ Or CERTIORARI TO THE

UNITED StaTES Court OF APPEALS

FOR THE SIxTH CIRCUIT

BRIEF IN OPPOSITION

a

THOMAS R. MEAGHER

Counsel of Record

Ricuarp C. Kraus |

Foster, Swirt, Couuins & Saitu, PC.

313 S. Washington Square

Lansing, MI 48933

(517) 371-8100

Attorneys for Respondent

219073 g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

=

Il.

IIT.

IV.

i

QUESTIONS PRESENTED

Should the Court reconsider the second

requirement for ripeness of federal takings claims

under Williamson County Regional Planning

Comm'n v. Hamilton Bank of Johnson City when

the Court of Appeals did not decide whether

petitioners satisfied the first requirement?

Should the Court reconsider Williamson County’s

state-litigation requirement when petitioners did

not pursue their takings claim to judgment in state

court and have not been adversely affected by any

jurisdictional or preclusion implications?

Should the Court review the Sixth Circuit’s holding

that petitioners’ procedural due process claim

arose from the same facts and alleged the same

injury as their takings claim and was not ripe,

particularly when the other Courts of Appeals

follow the same rule?

Should the Court grant certiorari to review dictum

by the Court of Appeals regarding the property

interest necessary to trigger due process protection

when the issue was neither raised nor briefed by

the parties? -

ti

TABLE OF CONTENTS

Page

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

EE GI CUTIE ve ccesccnccccccceces ii

TABLE OF CITED AUTHORITIES ......... iv

ive ( 1 tye | | ne a eg Lay 1

SUPPLEMENT TO PETITIONERS’

RMSE GE GENES nce vicccccccccces 4

REASONS FOR DENYING THE PETITION ... 7

1. The Court of Appeals did not decide

whether petitioners satisfied the finality

prong of Williamson Couriy. .......... 7

2. Williamson County’s state-litigation

requirement is well-founded in the text of

ee i ee ea an ae 13

3. Because petitioners did not ripen their

takings claim in state court as required

by Williamson County, none of their

issues or claims have been precluded. As

a result, they have not been affected by

the “Jurtedictional trap.” .....ccssececes 17

ili

Contents

Page

4. There is no conflict among the Courts of

Appeals as to the ripeness analysis for

procedural due process claims asserted in

the land use context. .................. 19

5. The Sixth Circuit did not hold that

petitioners lacked a sufficient property

interest for procedural due process

protection. Instead, the court’s discussion

is dictum regarding an issue neither

raised nor briefed by the parties. ....... 26

Ee Fiveucdaedkeebedabesdcnaaaeon 28

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Allen v. McCurry, 449 U.S. 90 (1980) ......... 17, 18

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

SE wiccnverderesebneneeeneeices 25

Bell River Associates v. China Charter

Township, 565 N.W.2d 695 (Mich.Ct.App.

DE di tbkade edAeROedcduekas FuReEdeee, 9

Black v. Cutter Laboratories, 351 U.S. 292

ALA ts swede ei Beka dd oy ae ae ieneeeth 27

Braun v. Ann Arbor Charter Township, 683

N.W.2d 755 (Mich.Ct.App.2004) ............ 9

Brown v. Legal Foundation of Washington,

ET .ckb nes ceundaneaedacoae 14

Carpinteria Valley Farms, Ltd. v. County of

Santa Barbara, 344 F:3d 822 (9th Cir. 20038) ... 24

City of Eastlake v. Forest City Enterprises, Inc.,

IE =o 6.666 ceuetnatsaccdenens 28

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999) ......... 14-15

Del Monte Dunes v. City of Monterey, 920 F.2d

I ee a ea a 13

Vv

Cited Authorities

Page

DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir.

Es in nbaprae war teabak uel dodo aaah a eae 11

Dougherty v. Town of North Hempstead Bd. of

Zoning Appeals, 282 F.3d 83 (2d Cir. 2002) .. 22

Executive 100, Inc. v. Martin County, 922 F.2d

1536, 1540 (11th Cir.), cert. denied, 502 U.S.

PEE inc tbavccuckideenddn eeuewednnsec 11

Exxon Mobil Corp. v. Saudi Basic Industries

Car, BOR DE. BO GRD ccc cccvesccescess 17

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, Cal., 482 U.S.

PE a6 it pith a ch wiles esa enue eee 2, 7, 14, 15

Gilbert v. City of Cambridge, 932 F.2d 51 (1st

Sr errr her 25

Greenfield Mills, Inc. v Macklin, 361 F.3d 934

ED cc ccensersuvessshessensenet 25

Harris v. County of Riverside, 904 F.2d 497

EE 0 ns ons iad a bem eee ae 24

Hidden Oaks Ltd. v. City of Austin, 138 F.3d

EE ED cnbvicucntcddcangeeneus 23

vi

Cited Authorities

Page

Hodel v. Virginia Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264

ee en is vin dduewaeeeeeepes 14

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

ee a cee deeeeee 11

John Corp. v. City of Houston, 214 F.3d 573

SEE een ee 23

Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th

Cir. 1987), amended, 830 F.2d 968 (9th Cir.

1987), cert. denied, 484 U.S. 1043 (1988) .... 10

Kropf v. City of Sterling Heights, 215 N.W.2d

Ee seb ee ei eee bees 28

Lucas v. South Carolina Coastal Council,

CE, oc cc neceeeseenecses 16, 17

MacDonald, Sommer & Frates v. Yolo Co.,

re 1, 10, 11, 12

Macene v. MJW, Inc., 951 F.2d 700 (6th Cir.

i ies ie ee eee beeehehnees 18

Monk v. Huston, 340 F.3d 279 (5th Cir. 2003)... 24

Murphy v. New Milford Zoning Comm., 402 F.3d

soe bs sac udececseucenees 21, 25

vil

Cited Authorities

Page

Nasierowski Brothers Investment Co. v. Sterling

Heights, 949 F.2d 890 (6th Cir. 1991) ........ 25

National Park Hospitality Ass’n v. Dep't of

Interior, 538 U.S. 803 (2003) .......... in a

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

is ee ee hie seh ehh eee wiek esa ds 1,11

Penn Cent. Transp. Co. v. City of New York,

Ss DED 6.06066 Cescnecdoasesd ees 17

Phillips v. Washington Legal Foundation,

nD: as~ree as beans eeasheeees 17

Reno v. Catholic Social Services, Inc., 509 U.S.

ee 21

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

23 F.3d 164 (7th Cir. 1994) .....c.ccccecess 23, 25

Rocky Mountain Materials & Asphalt, Inc. v

Board of County Commissioners of El Paso

County, 972 F.2d 309 (10th Cir. 1991) ........ 23

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

San Francisco, 545 U.S. 323 (2005) ....... passim

Schwartz v. City of Flint, 395 N.W.2d 678

EE och es teldbesnnnwseucs eedenedes 28

—

at

5

vili

Cited Authorities

Page

Silverman v. Barry, 845 F.2d 1072 (D.C. Cir.

I Sic tke A ai atin a ll laa a ie wie ie 24

Singleton v. Wulff, 428 U.S. 106 (1976) ........ 27

Southern Pacific Transportation Co. v. City of

Los Angeles, 922 F.2d 498 (9th Cir. 1990) ... 11, 12

Suitum v. Tahoe Regional Planning Agency,

ee EE id icc dccvesaneedavedes 13, 14

Taylor Investment,. Ltd. v. Upper Darby Twp.,

983 F.2d 1285 (3d Cir. 1993) ............... 23, 25

Tri County Industries, Inc. v. District of

Columbia, 104 F.3d 455 (D.C. Cir. 1997) ..... 24

Urban Developers LLC v. City of Jackson,

468 F.3d 281 (5th Cir. 2006) ................ 23

Williamson County Regional Planning

Comm'n v. Hamilton Bank of Johnson City,

EEE Gi vaccccvnccscusaseun passim

Statute:

a ewes ei natinw hes eeheeben 15

Rule:

Supreme Court Rule 16.2 .......ccccccccccess 4

“—

ix

Cited Authorities

Page

Other Authority:

Sterk, The Federalist Dimension of Regulatory

Takings Jurisprudence, 114 Yale L.J. 114

DINE AGy Cu eeescdcgwieeeseedebtenswess a? ae

1

INTRODUCTION

Petitioners challenge the _ state-litigation

requirement for ripeness established in Williamson

County Regional Planning Comm’n v. Hamilton Bank

of Johnson City, 473 U.S 172 (1985). As support, they

rely heavily on Chief Justice Rehnquist's suggestion that

in “an appropriate case,” this Court should reconsider

the requirement that plaintiffs asserting a federal

takings claim “must first seek compensation in state

courts.” San Remo Hotel, L.P. v. City and County of

San Francisco, 545 U.S. 323, 352 (2005) (Rehnquist, C.J.,

joined by O’Connor, Kennedy and Thomas, JJ.,

concurring in judgment).

This is not an “appropriate case” for reviewing the

first question raised in the petition.

Petitioners do not dispute Williamson County’s

requirement of “a final decision regarding the

application of the regulations to the property at issue.”

475 U.S. at 194. For a takings claim to be ripe, a court

must “know[] the nature and extent of permitted

development before adjudicating the constitutionality

of the regulations that purport to limit it.” MacDonald,

Sommer & Frates v. Yolo Co., 477 U.S. 340, 351 (1986).

The Court of Appeals did not decide whether

petitioners “followed reasonable and necess.ry steps to

allow [the township] to exercise [its] full discretion in

considering development plans for the property .. .”

Palazzolo v. Rhode Island, 533 U.S. 606, 620-21 (2001).

In the courts below, Respondent Ann Arbor Charter

Township argued that there was no final determination.

2

Rather, petitioners submitted a rezoning petition

which could have increased the township’s population

from 5,000 to 8,000, overwhelming its public

safety services, schools, roads, sewers and other

infrastructure. During the review process, petitioners

refused to supply information requested by the

township’s planning commission about the proposed

development. Lacking the information needed to

responsibly exercise its discretion, the township denied

the rezoning petition. Later, petitioners applied for a

use variance from a zoning board of appeals with no

authority to even consider the request. At the public

hearing, petitioners asked the board to deny their own

application.

The Court of Appeals said it would “pretermit this

question and instead focus on the second prong, which

is dispositive on the issue of federal subject-matter

jurisdiction.” App. at A-9. Because the court did not

decide whether petitioners met the finality threshold,

the arguments for reconsidering the state-litigation

requirement are not squarely presented. See First

English Evangelical Lutheran Church of Glendale v.

Los Angeles County, Cal., 482 U.S. 304, 311 (1987)

(noting cases in which concerns with finality made

consideration of the remedial question premature).

Moreover, petitioners do not challenge Williamson

County’s second requirement in concrete or meaningful

terms. Their assertion that the state-litigation

requirement “operates as a jurisdictional trap, rather

than [a] ripeness prerequisite” is an abstraction.

Petition at 19. Because petitioners elected not to ripen

their takings claim in state court as required by

Williamson County, they have not been affected or

3

aggrieved by San Remo’s enforcement of the Full Faith

and Credit Act.

As to the second question presented, petitioners

erroneously assert that the Court of Appeals

“subsumed” their procedural due process claim “in its

taking analysis.” /d. at 23. Instead, the court concluded

that the due process claim was “ancillary to and

include[d] the same facts as the takings claim.” App. at

A-13. Based on “the circumstances of the specific case,”

the court held that the due process claim was not ripe

under Williamson County’s considerations. Jd. at A-

14-16.' The Sixth Circuit’s fact- and issue-specific

examination of the relationship between the due process

and takings claims is consistent with the approach used

by the other Courts of Appeals.

As to the third question presented, the Court of

Appeals’ discussion of the property interest required

to trigger due process protection is dictum. Id. at A-

16-17. Neither party raised or briefed the issue on appeal

or in the district court. The court’s unprompted dictum

does not provide an appropriate basis for deciding this

issue.

' Petitioners also asserted substantive due process and

equal protection claims in the district court and Court of

Appeals. Those claims are not raised in their petition.

4

SUPPLEMENT TO PETITIONERS’

STATEMENT OF CASE

As required by Rule 15.2, the township addresses

the following misstatements and omissions that bear on

the questions presented in the petition.

Petitioners own property along the northern

boundary of Ann Arbor Township in Washtenaw County,

Michigan. The Brauns own 286 acres; the Pardons own

77 acres. App. at B-2. They petitioned the township to

rezone the property from A-1 (agricultural) and R-2

(single family suburban), to R-6 (mobile home park

residential) and R-3 (single family urban residential).

Id. at B-2-3.

Petitioners did not seek rezoning to a “medium

density residential classification” as suggested. Petition

at 3. To the contrary, they sought a rezoning to allow

mobile home park development on 215 acres and high

density single family urban residential development on

149 acres. App. at B-3.

Petitioners’ statement that they sought rezoning

“consistent with the zoning applicable to other adjacent

developed properties” is contrary to the record. Petition

at 3. The documents filed by petitioners with their

rezoning petition establish that surrounding properties

are zoned A-1 (agricultural), R-2 (single family

suburban), and R-1 (single family rural residential). The

last classification requires larger lots than the R-2 zone.

The reviews by township and county planning

5

commissions determined that the requested rezoning

would be incompatible with surrounding property zoning

and uses.’

To support their allegation that the township

unjustifiably requested information about their

proposed uses, petitioners gloss over the extraordinary

nature of their rezoning petition. The requested

rezoning would have significant adverse consequences

for the community as detailed by the township and

county planning commissions’ and the township board.‘

The Sixth Circuit noted the clearest example: if granted,

the rezoning could increase the township’s population

by 3,000, from 5,000 to 8,000. App. at A-4, n.2. As a result,

the township requested additional information about the

impact on roads, traffic, sewers, water and public safety

services. Jd. at A-5, n. 3; Sixth Circuit Joint Appendix

(J.A.) 92-94. Petitioners chose not to provide it. Instead,

they demanded that the planning commission and

township board make their decision without any further

input. Petition at 7.

Petitioners incorrectly state that “subdivision plans”

were requested by the township although “not required

for a zoning change.” Petition at 8. No such request was

® Defendant Ann Arbor Charter Township’s Motion for

Summary Judgmerni, Exhibit 1, p. 2 & 6-7 (Township Planning

Commission Resolution) & Exhibit 2, p. 3 (County Planning

Commission Staff Report).

* Td. at Exhibit 1 & Exhibit 2.

* Sixth Circuit Joint Appendix (J.A.) 99-105 (Township

Board Resolution).

6

made. Instead, as noted, the information related to

wetlands, water and sewers, traffic, public safety and

other topics relevant to rezoning. J.A. 92-94. The county

staff report explained the importance of the requested

information. Although a drawing attached to the

rezoning petition showed only 1,000 manufactured

homes, the potential development was not limited if the

220 acres were rezoned to R-6. “The petitioner is not

tied to a site plan with a straight rezoning to R-6 and

could therefore build out the site to its maximum

allowable density” resulting in many more manufactured

homes.°

Petitioners erroneously claim that the township’s

decision was “premised on speculation” about the impact

of their proposed development. Petition at 8. The

planning commission’s resolution recommending denial

set forth specific reasons and detailed findings.* The

county metropolitan planning commission then reviewed

the petition, made independent findings, and similarly

recommended denial.’ The township board followed the

township and county planning commissions’

recommendations and adopted a resolution denying

rezoning. The resolution identified the “significant — and

— detrimental impact on the community.” App. at A-5

(citing J.A. 99-105).

® Defendant Ann Arbor Charter Township’s Motion for

Summary Judgment, Exhibit 2, p. 3.

® Jd. at Exhibit 1.

7 Jd. at Exhibit 2.

7

REASONS FOR DENYING THE PETITION

1. The Court of Appeals did not decide whether

petitioners satisfied the finality prong of

Williamson County.

Petitioners do not challenge Williamson County’s

final determination requirement. Instead, their petition

simply asserts that “the Township made clear that there

was no available administrative relief” and presumes

that finality ripeness has been satisfied. Petition at 3.

However, the Court of Appeals did not decide this

contested issue. The township argued there was no

“final decision regarding the application of the

regulations to the property at issue,” Williamson

County, 473 U.S. at 186, and therefore, petitioners’

takings claim was not ripe for review. The court said:

Although the defendant argues that the

plaintiffs have not satisfied the finality prong,

we pretermit this question and instead focus

on the second prong, which is dispositive on

the issue of federal subject-matter

jurisdiction. App. at A-9.

Because the Court of Appeals did not determine

whether petitioners satisfied the final determination

requirement, this case does not squarely present the

first question raised in the petition. A finding that

petitioners did not pass this threshold would eliminate

any need to consider the state-litigation requirement.

See First English, 482 U.S. at 311 (issues relating to

remedy for taking are premature when finality is not

established).

8

Petitioners and amici rely on the concurring opinion

in San Remo, which stated that it was not “clear” that

Williamson County “was correct in demanding that,

once a government entity has reached a final decision

with respect to a claimant’s property, the claimant must

seek compensation in state court before bringing a

federal takings claim in federal court.” San Remo, 545

U.S. at 349 (Rehnquist, C.J., concurring) (emphasis

added). This passage confirms that the appropriate case

for reconsidering the state-litigation requirement should

be one where the finality requirement is not disputed.

Petitioners did not satisfy Williamson County’s

first prong. The process began with their petition to

rezone 363 acres that were predominantly zoned

“A-1, General Agricultural” for many years. They sought

rezoning to allow intensive mobile home park and high-

density residential zoning.® J.A. 75-90. The effect could

have increased the township’s population from 5,000 to

8,000, and overwhelmed its schools, roads, municipal

services and community resources. App. at A-4, n.2 &

A-5 (citing J.A. 99-105).

Presented with a community-changing proposal, the

township advised petitioners about its concerns and

asked for more information. Petitioners refused to

® Petitioners incorrectly state that they sought “a medium

density residential classification.” Petition at 3. Their request

included rezoning of 215 acres to R-6 (mobile home park

residential district) and 149 acres to R-3 (single family home

urban residential district). The appraisal submitted by

petitioners in support of their application described the

proposed uses as “high-density residential housing.”

App. at A-4.

9

provide any further details about the planned

development or the potential impact on township roads

and traffic, sewage and water services, public safety

services and related items. Jd. at A-5, n. 3 (citing J.A.

92-94).° Lacking any information about these

considerations, the township denied the rezoning

petition. Jd. (citing J.A. 99-105). Rather thai supplying

the requested information or proposing less drastic

alternatives, petitioners informally asked about the

process for seeking a variance from the zoning board of

appeals. The township attorney responded by letter,

stating that the zoning board of appeals lacked

authority to change a zoning district classification or

grant a use variance. /d.

Petitioners did not pursue any further approaches

with the township and instead filed suit in state court.

The state court of appeals held that petitioners had not

obtained a final decision as required by Williamson

County and dismissed the claim for lack of ripeness.

Braun v. Ann Arbor Charter Township, 683 N.W.2d 755

(Mich.Ct.App.2004).

Again choosing not to provide the requested

information or submit a more modest proposal,

* The requested information was relevant to the township’s

consideration of the rezoning petition. See Bell River Associates

v. China Charter Township, 565 N .W.2d 695 (Mich.Ct.App.1997)

(affirming township’s denial of rezoning from agricultural to

mobile home park and multiple-family uses, noting potential

40% increase of township’s population, unavailability of water

and sewer service, lack of proximity to schools, hospitals, and

community services, and need for additional police and fire

services).

10

petitioners applied for a variance from the zoning board

of appeals despite knowing it lacked any authority to

grant such a request. Indeed, petitioners went to the

meeting and requested denial of their own application.

J.A. 128. Following the invited denial, petitioners went

directly to federal court without any resort to Michigan’s

inverse condemnation procedures.’°

As in MacDonald, petitioners submitted an

“exceedingly grandiose” rezoning request that would

increase the township’s population by 60% and then

refused to furnish any information about the potential

impact on traffic, public safety services, water and

sewage capacities, and similar land use factors. 477 U.S.

at 353, n. 9 (“Rejection of exceedingly grandiose

development plans does not logically imply that less

ambitious plans will receive similarly unfavorable

reviews.”) By steadfastly rejecting the township’s

reasonable inquiries, petitioners effectively abandoned

their rezoning request.'! Their next step (after a

precipitous and failed detour into state court) was

submitting a variance request to a body that could not

grant it and asking for its denial.

This sequence presents substantial questions

regarding petitioners’ satisfaction of the finality

© The Court of Appeals noted, as did the parties, that

Michigan has a well-established inverse condemnation remedy.

App. at A-9 (citing Macene v. MJW, Inc., 951 F-2d 700, 704 (6th

Cir. 1991).

" Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454-55 (9th

Cir. 1987), amended, 830 F.2d 968 (9th Cir. 1987), cert. denied,

484 U.S. 1043 (1988).

11

requirement. The first ripeness prong requires a final

determination by the appropriate agency regarding the

permissible uses of property that allows a court to

meaningfully decide whether a regulatory taking has

occurred. DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir.

2004); Hoehne v. County of San Benito, 870 F.2d 529,

533 (9th Cir. 1989). ,

The jurisdictional and prudential reasons for finality

~— which petitioners do not contest — are not satisfied by

a community-changing rezoning petition and a sham

variance request.'® Petitioners had several available

options. They could have supplied the requested

information and allowed the township to evaluate the

proposed rezoning’s impact before the public hearings.

Petitioners’ refusal effectively denied the township

“an opportunity to exercise its discretion.” Palazzolo,

533 U.S. at 620. Second, petitioners could have

pursued negotiations with the township regarding

“less ambitious plans” that were more consistent with

the community’s character and resources. MacDonald,

477 U.S. at 353, n. 9.

There was no evidence that the township would not

allow less intensive development. The township sought

Although numerous cases refer to a property owner’s

need to request a variance if available, the correct procedures

depend on the particular state’s law. “The term ‘variance’ is not

definitive or talismanic; if other types of permits or actions are

available and could provide similar relief, they must be sought.”

Southern Pacific Transportation Co. v. City of Los Angeles, 922

F.2d 498, 503 (9th Cir. 1990). See also, Executive 100, Inc. v.

Martin County, 922 F.2d 1536, 1540 (11th Cir.) (andewner must

have “pursued alternative, less ambitious development plans”),

cert. denied, 502 U.S. 810 (1991).

12

detailed information during its initial review. The zoning

board of appeals suggested several options, referring

to a comparable development proposal for a nearby

agriculturally zoned parcel. J.A. 133, 145. Against this

background, petitioners have not received “a final and

authoritative determination of the type and intensity

of development legally permitted on the subject

property.” MacDonald, 477 U.S. at 348 (emphasis

added). The township’s denial of the rezoning petition

to convert farmland into high density residential

housing — after petitioners refused to provide the

information needed to fairly evaluate the request —

represents only an initial “[rJejection of exceedingly

grandiose development plans.” Jd. at 353, n. 9.

The lack of any “meaningful application” was

decisive in Southern Pacific Transportation Co. v. City

of Los Angeles, 922 F.2d 498 (9th Cir. 1990). An unused

railroad right-of-way was zoned for residential,

commercial and industrial uses. The city rezoned the

property to allow only surface parking. The owners

opposed the rezoning but did not submit any

development proposals or suggest alternatives other

than continuing the preexisting zoning. The Ninth

Circuit held that “federal courts would be required to

guess what possible proposals appellants might have

filed with the City, and how the City might have

responded to these imaginary applications. It is precisely

this type of speculation that the ripeness doctrine is

intended to avoid.” Jd. at 504.

Petitioners’ persistent refusals resulted in the same

speculation. The township was never given the chance

to consider the many alternatives between agricultural

13

uses at one end and high density mobile home and

residential developments at the other. Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725, 738-739 (1997)

(recognizing “high degree of discretion characteristically

possessed by land-use boards in softening the strictures

of the general regulations they administer”); Del Monte

Dunes v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir.

1990) (landowner “may need to resubmit modified

development proposals that satisfy the local

government’s objections to the development as initially

proposed”).

This dispositive issue was not decided by the Court

of Appeals. As a result, the soundness of the state-

litigation requirement is not properly presented for

review.

2. Williamson County’s state-litigation requirement

is well-founded in the text of the Takings Clause.

There is no need to extensively reiterate the

arguments regarding Williamson County’s state-

litigation requirement. Petitioners raise the same

objections asserted in prior cases and debated in law

review articles. Petition at 2-3. As foundation, the

arguments presume that regulatory taking claims are

somehow different than other constitutional claims and

should be exempt from the standards governing other

federal actions. This Court has twice rejected these

arguments —- when made by the property owner and

when made by a municipality.

The state-litigation requirement is based on the

plain language of the Takings Clause. (“[NJor shall

14

property be taken for public use, without just

compensation.”). Accordingly, “[t}he Fifth Amendment

does not proscribe the taking of property; it proscribes

taking without just compensation.” 473 U.S. at 194.

If the government has provided an adequate

process for obtaining compensation, and if

resort to that process “yield[s}) just

compensation,” then the property owner “has

no claim against the Government” for a taking.

Id. at 194-95 (quoting Ruckelshaus v.

Monsanto Co., 467 U.S. 986, 1013, 1018 n.2) *

The right guaranteed by the Takings Clause is “the

right to recover just compensation.” First English, 482

U.S. at 314 (quoting Jacobs v. United States, 290 U.S.

13, 16 (1933)).

That textual understanding of the protection

afforded by the Takings Clause was followed in City of

Monterey v. Del Monte Dunes at Monterey, Lid., 526

'8 This reading was accepted before Williamson County.

Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc.,

452 U.S. 264, 297, n. 40 (1981) (“an alleged taking is not

unconstitutional unless just compensation is unavailable”). This

Court has consistently followed it since. First English, 482 U.S.

at 315 (The Takings Clause “is designed not to limit the

governmental interference with property rights per se, but

rather to secure compensation in the event of otherwise proper

interference amounting to a taking.”); Suitum, 520 U.S. at 734

(state-litigation requirement “stems from the Fifth

Amendment’s proviso that only takings without ‘just

compensation’ infringe that Amendment”); Brown v. Legal

Foundation of Washington, 538 U.S. 216, 231-32, 235 (2003).

15

U.S. 687, 718 (1999) (“Simply put, there is no

constitutional or tortious injury until the landowner is

denied just compensation.”).'* Because state law did not

allow compensation for temporary takings, the property

owner had a ripe takings claim under § 1983. This Court

held that the right to jury trial applied to § 1983 actions.

The city sought “an exception . . . for claims alleging

violations of the Takings Clause of the Fifth

Amendment.” Jd. at 711. After a lengthy examination of

the nature of the just compensation remedy, this Court

concluded that there was no justification for treating

takings claims differently from other constitutional

claims raised in § 1983 actions. Jd. at 718.

A property owner’s request for special dispensation

was also declined in San Remo. This Court found no

reason to “create an exception to the full faith and credit

statute, and the ancient rule on which it is based, in

order to provide a federal forum for litigants who seek

to advance federal takings claims that are not ripe until

the entry of a final state judgment denying just

compensation.” 545 U.S. at 337. More broadly, this Court

recognized that “this is not the only area of law in which

we have recognized limits to plaintiffs’ ability to press

their federal claims in federal courts.” Jd. at 347.

Requiring a takings plaintiff to pursue state

compensation remedies was justified because “[s]tate

courts are fully competent to adjudicate constitutional

challenges to local land-use decisions” and “undoubtedly

have more experience than federal courts do in resolving

" See also, First English, 482 U.S. at 320, n. 10 (“illegitimate

taking” occurs when “the government refuses to pay”)

16

the complex factual, technical and legal questions

relating to zoning and land-use regulations.” /d.'°

At the core of petitioners’ argument is a belief that

their constitutional right to just compensation can be

protected only in federal court. However, the state-

litigation requirement does not weaken a property

owner’s entitlement to just compensation. Rather, it

enforces the language of the Takings Clause by holding

that a constitutional violation occurs only when a

property owner has been denied just compensation.

It respects the role of state courts and legislatures in

ensuring the availability of adequate remedies. And, it

allows a federal remedy when a state fails to meet its

constitutional obligation to provide an adequate just

compensation remedy. First English, 482 U.S. at 314-

316.

Petitioners suggest that abandoning the state-

litigation requirement would lead to “a simple return to

the doctrinally sound pre-Williamson County regime.”

Petition at 23. However, this Court noted that there is

“scant precedent” for litigating takings claims in federal

court. San Remo, 545 U.S. at 347. The state-litigation

requirement is entirely consistent with the central role

of state law in determining whether regulatory action

1® State property law provides the guiding principles in

taking cases. Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1029 (1992) (need for reference to “the restrictions that

background principles of the State’s law of property and

nuisance already place upon land ownership” to determine if

regulatory act results in taking).

17

results in a taking’® and the confidence in state courts

to enforce constitutional rights.'”

3. Because petitioners did not ripen their takings

claim in state court as required by Williamson

County, none of their issues or claims have been

precluded. As a result, they have not been affected

by the “jurisdictional trap.”

Petitioners argue that San Remo’s enforcement of

the Full Faith and Credit Act turns Williamson County

into “a jurisdictional trap, rather than [a] ripeness

prerequisite.” Petition at 19. However, since petitioners

did not ripen their claims through state court litigation,

there is no judgment with preclusive effect. And in turn,

there is no way to determine what particular facts, issues

or claims might have been precluded. Thus, petitioners

have not been placed in or suffered from the

“jurisdictional trap” about which they complain.'®

16 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104

(1978); Lucas, 505 U.S. at 1027-29, 1031. Phillips v. Washington

Legal Foundation, 524 U.S. 156, 164 (1998). See, Sterk, The

Federalist Dimension of Regulatory Takings Jurisprudence,

114 Yale L.J. 114, 211-14 (2004) (discussing primacy of state law

in takings law).

17 Allen v. McCurry, 449 U.S. 90, 105 (1980).

Petitioners advance a related argument that a property

owner’s compliance with Williamson County's state-litigation

requirement prevents federal courts from exercising

jurisdiction over takings claims due to the Rooker-Feldman

doctrine. Petition at 19 n. 3. This issue is also not presented

because there has not been a state court judgment. Exxon Mobil

Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005).

18

If this Court wants to revisit the state-litigation

requirement, the issue would be best presented by a

property owner directly and adversely affected by the

rule. Petitioners cannot frame the issue in any

meaningful or concrete sense. They have not lost a valid

federal claim due to a state court’s erroneous conclusion

that the township’s application of its zoning ordinances

did not result in a taking. Nor can they show that a state

court failed to justly compensate them for the alleged

taking of their property.

Instead, petitioners must speculate that a Michigan

court might improperly apply the state’s “long

recognized and constitutionally established” inverse

condemnation doctrine and procedures. Macene v.

MJW, Inc., 951 F.2d 700, 704 (6th Cir. 1991). And,

petitioners must assume that a Michigan court would

fail to properly enforce federal constitutional provisions.

Their hypothetical assertions run directly contrary to

this Court’s “emphatic reaffirmation ... of the

constitutional obligation of the state courts to uphold

federal law, and its .. . confidence in their ability to do

so.” Allen v. McCurry, 449 U.S. 90, 105 (1980) (citing

Stone v. Powell, 428 U.S. 465, 494 n.35 (1976)).

In dramatic but generic terms, petitioners object

to the state-litigation requirement as “wreak[ing] havoc

on the federal jurisdictional framework.” Petition at 17.

However, by choosing to bypass state court — a ripeness

requirement in place since 1985 — petitioners have

defeated their ability to act as an aggrieved

representative for that position.

19

In the same way, petitioners maintain that

Williamson County “eviscerates the government’s

ability to remove a federal takings claim.” /d. at 20. They

are even less suitable advocates for this argument.

Obviously, petitioners are not a municipality unable to

remove a federal takings claim. They are also not

property owners who have endured a “Kafkaesque

jurisdictional nightmare” as a case is removed and later

remanded. /d. at 21-22.

Only three years ago, this Court said that “(i]t is

hardly a radical notion to recognize that, as a practical

matter, a significant number of plaintiffs will necessarily

litigate their federal takings claims in state courts.”

San Remo, 545 U.S. at 346. If this Court wants to

accept Chief Justice Rehnquist’s suggestion for

reconsideration of that result, the township believes the

better course would be to wait for a property owner who

suffered actual and specific harm from proceeding in

state court.

4. There is no conflict among the Courts of Appeals

as to the ripeness analysis for procedural due

process claims asserted in the land use context.

The Court of Appeals did not hold that petitioners’

procedural due process claim “was subsumed in its

taking analysis.” Petition at 23. Nor has any circuit held

that “takings claims preempt land use procedural due

process claims.” /d. at 26. Instead, the Courts of Appeals

consistently employ a pragmatic approach to determine

whether the ripeness considerations underlying

Williamson County should be applied to procedural due

process and other constitutional claims raised in the land

20

use context. When particular constitutional claims

depend on the same facts and are closely related to

takings claims, courts hold that ripeness principles call

for one or both of the requirements established in

Williamson County. When the other claims are factually

separate and result in distinct injuries, courts find the

claims are ripe without requiring finality or state court

litigation.

Based on their erroneous characterizations of the

Sixth Circuit opinion and the decisions in other circuits,

petitioners assert that “subsuming procedural due

process claims in takings law effectively ends federal

jurisdiction over those claims.” Petition at 24. They also

maintain that the Sixth Circuit’s treatment of due

process claims conflicts with decisions in the Fifth and

Ninth Circuits. Jd. at 26-29. Neither argument is correct.

Neither warrants a grant of certiorari.

In this case, the Court of Appeals noted that

“the thrust of the plaintiffs’ due process claim is that

the Township’s refusal to rezone their property was a

taking, one resulting from a policy bias (evidenced by

the request for more information) against low-income

housing proposals.” App. at A-15. The court “focused

on the circumstances of the specific case - and

particularly the issue of when the alleged injuries

occurred.” The township’s alleged policy bias did not

result in an “instantaneous infliction of a concrete

injury.” Jd. at A-14 (quoting Bigelow v. Michigan Dep't

of Natural Resources, 970 F.2d 154, 159 (6th Cir. 1992))

Until a state court determined whether there was a

taking, the Court of Appeals “was unable to say that

the Township’s decision resulted from bias potentially

21

constituting a procedural due process violation.”

Id. at A-16. Finding that the procedural due process

claim “is ancillary to and includes the same facts as the

takings claim,” the court concluded that applying

Williamson County’s ripeness requirements was

appropriate. Jd. at A-13."°

The ripeness inquiry involves a careful analysis of

the nature and context of due process claims. Murphy

v. New Milford Zoning Comm., 402 F.3d 342 (2d Cir.

2005) (“The Williamson County ripeness test in a fact-

sensitive inquiry that may, when circumstances warrant,

be applicable to various types of land use challenges.”).

This approach “stands merely for the sensible

proposition that . .. different circumstances may

produce different results.” Bigelow, 970 F.2d at 160.

Moreover, the analysis is entirely consistent with

traditional ripeness principles. Ripeness “is drawn both

from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction.”

Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57,

n. 18 (1993). The doctrine protects against “judicial

interference until a[ ]... decision has been formalized

and its effects felt in a concrete way by the challenging

parties.” National Park Hospitality Ass'n v. Dep't of

Interior, 538 U.S. 803, 807-08 (2003) (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). Under

these standards, waiting to see if a taking occurred

'% Petitioners also asserted substantive due process and

equal protection claims in the Court of Appeals. Those claims

are not raised in their petition.

22

before deciding whether the taking resulted from

deficient procedures is prudent, if not constitutionally

mandated.

This case-by-case evaluation also serves an

important purpose. Justiciability would be reduced to a

pleading standard if ripeness could be established by

simply restating a land use claim in due process terms,.

If ripeness was determined without acknowledging the

land use context, a property owner could easily evade

the prudential considerations protected by Williamson

County.

Petitioners incorrectly divide the circuits into two

categories — one applying Williamson County to

procedural due process claims and the other refusing

to do so. A review of the cases demonstrates that the

Courts of Appeals are much more discriminating.

Depending on the circumstances, a court may determine

that the nature and context of a procedural due process

claim calls for application of Williamson County’s

ripeness principles. In others, a court may conclude that

a particular due process claim stands separately and

ripens independently from a takings claim. No Court of

Appeals mechanically applies or declines to apply

Williamson County to other constitutional claims raised

in a land use dispute.

Petitioners’ categories ignore the differing

application of the finality and state-litigation

requirements. In some cases, courts only require a final

determination before a due process claim is ripe.

Dougherty v. Town of North Hempstead Bd. of Zoning

Appeals, 282 F.3d 83, 88-89 (2d Cir. 2002) (applying

finality but not state-litigation requirement). In others,

23

when the alleged injury caused by deficient procedures

is the deprivation of the right to use property, courts

require the claim to be ripened through state

compensation procedures. River Park, Inc. v. City of

Highland Park, 23 F.3d 164, 167 (7th Cir. 1994)

(procedural due process claim not ripe unless available

state procedures were used).”

Moreover, petitioners fail to distinguish the rationale

from the holding of the cases used to demonstrate the

purported circuit conflict. For example, petitioners put

the Fifth Circuit into their “independent claim” category,

citing Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036

(5th Cir. 1998). However, in that case, the claim was ripe

because the property owners “asserted a violation of

their procedural due process rights that inflicted an

injury separate from the takings claims that was

dismissed before trial.” John Corp. v. City of Houston,

214 F:3d 573, 585 (5th Cir. 2000). The bright-line

categorization suggested by petitioners was explicitly

rejected by the Fifth Circuit in Urban Developers LLC

v. City of Jackson, 468 F.3d 281 (5th Cir. 2006). A

developer claimed that a city’s statements about

condemning flood-damaged apartments and its refusal

to approve rebuilding plans violated procedural due

process. The court analyzed ripeness “not by direct

reference to Williamson County ... but rather by

reference to principles of ripeness generally.” Jd. at 296.

Because the developer had “yet to suffer a deprivation

»” See also, Taylor Investment,. Ltd. v. Upper Darby Twup.,

983 F.2d 1285, 1292-95 (3d Cir. 1993) (finality only); Rocky

Mountain Materials & Asphalt, Inc. v. Board of County

Commissioners of El Paso County, 972 F.2d 309, 311 (10th Cir.

1991) (both).

24

of property,” the procedural due process claim was not

ripe. Jd. at 295-96. See also, Monk v. Huston, 340 F.3d

279, 282 (5th Cir. 2003) (applying general ripeness

principles consistently with Williamson County).

Nor does the Ninth Circuit fall into petitioners’ rigid

categories. “Procedural due process claims arising from

an alleged taking may be subject to the same ripeness

requirements as the taking claim itself depending on

the circumstances of the case.” Harris v. County of

Riverside, 904 F.2d 497, 500-01 (9th Cir. 1990) (emphasis

added). In another case cited by petitioners,

Carpinteria Valley Farms, Ltd. v. County of Santa

Barbara, 344 F.3d 822 (9th Cir. 2003), the plaintiff could

not use its property without paying an unauthorized fee.

The denial of procedural due process resulted in “actual,

concrete injuries which [were] separate from any taking,

... [had] already occurred and [did] not depend on the

finality of the County’s determination of the permissible

uses of his property.” In terms entirely consistent with

the flexible approach used in other circuits, Carpinteria

Valley concluded that “in certain limited and

appropriate circumstances,” other constitutional claims

“concerning land use may proceed even when related

Fifth Amendment ‘as applied’ taking claims are not yet

ripe for adjudication.” /d. at 831 (emphasis added).”!

#1 The D.C. Circuit cases cited by petitioners also do not

support their contention. The ripeness of the procedural due

process claim in Tri County Industries, Inc. v. District of

Columbia, 104 F.3d 455, 460 (D.C. Cir. 1997) was not contested

and Williamson County was not mentioned. No procedural due

process claim or ripeness issues were presented in Silverman

v. Barry, 845 F.2d 1072 (D.C. Cir. 1988).

25

The remaining Courts of Appeals do not fit into

petitioners’ other category. None require all procedural

due process claims to satisfy Williamson County

ripeness. Instead, the courts use the same fact-specific

analysis to determine if the finality and state-litigation

requirements are appropriate to ripen particular due

process claims. Gilbert v. City of Cambridge, 9382 F.2d

51, 66, n. 20 (1st Cir. 1991) (“same basic claim under two

different labels”); Murphy, 402 F.3d 342, 350 (2d Cir.

2005) (may apply “when circumstances warrant” based

on “fact-sensitive inquiry); Taylor Investment, Ltd. v.

Upper Darby Township, 983 F.2d 1285, 1293-94 (3d Cir.

1993); Greenfield Mills, Inc. v Macklin, 361 F.3d 934,

961-62 (7th Cir. 2004) (“based on the same facts as a

takings claim”); Bateman v. City of West Bountiful, 89

F:3d 704, 709 (10th Cir. 1996) (“claims that rest upon the

same facts as a concomitant takings claim”). In the Sixth

Circuit, some procedural due process claims are ripe

without a final determination or prior state court

litigation. Nasierowski Brothers Investment Co. v.

Sterling Heights, 949 F-2d 890, 893 (6th Cir. 1991) (claim

based on “immediately sustained and concretely felt”

injury was ripe). Others are not. Bigelow, 970 F.2d at

159-60 (ancillary claim was not ripe).

Ultimately, what these cases hold is that “[l]abels

do not matter.” River Park, Inc., 23 F.3d at 167.

A property owner cannot ripen a claim based on the

unconstitutional deprivation of property by couching it

as a procedural due process violation. The consistent

approach used by the Courts of Appeals means that only

those claims which are closely related to and raise the

same justiciability concerns as takings claims are subject

to Williamson County’s ripeness requirements.

26

Nothing in these cases represents an “unprecedented

abdication of federal jurisdiction” over procedural due

process claims.

5. The Sixth Circuit did not hold that petitioners

lacked a sufficient property interest for

procedural due process protection. Instead, the

court’s discussion is dictum regarding an issue

neither raised nor briefed by the parties.

The third question presented in the petition, 7.e.,

whether petitioners had a cognizable property interest

that triggered due process protection, is not properly

before the Court for two reasons: (1) the Sixth Circuit’s

discussion was dictum; and (2) the issue was not raised,

briefed, or argued by the parties.

The Sixth Circuit appropriately declined to consider

the merits of petitioners’ takings claim. Having

determined that the claim was not ripe because

petitioners failed to satisfy Williamson County’s state-

litigation requirement, the court correctly stated that

“(b Jecause the plaintiffs did not fulfill their obligation of

seeking just compensation in state court, we do not have

jurisdiction to reach the merits of their takings claim.”

App. at A-13.

The Court of Appeals next affirmed the district

court’s dismissal of the procedural due process claim,

finding it was ancillary to the takings claim and lacked

ripeness. Jd. at A-13-16. Despite this holding, the court

commented that “even assuming arguendo that the

claim ... is ripe for review; we are unable to find any

cognizable property right that triggers due process

27

protections.” Jd. at A-16. Because the court held that

the due process claim was not ripe, the subsequent

discussion is dictum. Indeed, the court lacked

jurisdiction to review the substantive validity of

petitioners’ claim. National Park Hospitality Ass’n v.

Department of Interior, 538 U.S. 803, 912 (2003)

(vacating lower court decision on merits because claim

was not ripe).

Certiorari is granted to “review[] judgments, not

statements in opinions.” Black v. Cutter Laboratories,

351 U.S. 292, 297-88 (1956). With rare exceptions, this

Court does not consider an issue that the parties have

not had an opportunity to fully develop below. See, e.g.,

Singleton v. Wulff, 428 U.S. 106, 121 (1976).

Petitioners erroneously assert that “the decision

below held that even if the Property Owners’ procedural

due process claim was ripe, it failed . . .” for lack of a

protected property interest. Petition at 29 (emphasis

added). The court made no such holding. The petition

continues the mischaracterization, stating that “the

court rejected the argument that a fee simple title was

a sufficient [property] interest.” Petition at 30. The court

did not “reject the argument” since no argument was

made by either party. To the contrary, the court

discussed the issue even though it was not raised or

decided in the district court and was not raised, briefed,

or argued on appeal.

2 Even if this Court believes that this issue deserves

consideration, this is not an appropriate case. The “thrust” of

petitioners’ procedural due process claim is that the township’s

(Cont’d)

28

The third question raised in the petition is not

properly before this Court.

CONCLUSION

This is not the “appropriate case” for reconsidering

Williamson County’s state-litigation requirement. The

Court of Appeals did not decide whether petitioners

passed the finality threshold. Petitioners have not been

affected by the asserted “jurisdictional trap.”

The Sixth Circuit and the other Courts of Appeals

have responsibly applied Williamson County’s ripeness

considerations to procedural due process and other

constitutional claims related to land use decisions. There

is no conflict to resolve.

(Cont'd)

rezoning decision resulted from a “policy bias . . . against low-

income housing proposals.” App. at A-15. This is a frivolous

claim. In Michigan, zoning and rezoning property are legislative

functions. Schwartz v. City of Flint, 395 N.W.2d 678, 682-83

(Mich.1986). By their legislative nature, rezoning decisions

reflect municipal policy choices regarding acceptable and

desirable land uses. Kropf v. City of Sterling Heights, 215 N.W.2d

179, 188 (Mich.1974) (“Our laws have wisely committed to the

people of a community themselves the determination of their

municipal destiny, the degree to which the industrial may have

precedence over the residential, and the areas carved out of

each to be devoted to commercial pursuits.”). The constitutional

protection against arbitrary and irrational zoning decisions

derives from substantive due process. Procedural due process

does not protect against legislative choices. City of Eastlake v.

Forest City Enterprises, Inc., 426 U.S. 668, 676-77 (1976). If the

differing circuit views as to the requisite property interest

warrant review, then the issue should be framed by a property

owner with a more substantial procedural due process claim.

29

The nature of the property interest necessary to

trigger due process protections is not properly

presented. The Sixth Circuit’s discussion is dictum

about an issue neither raised nor briefed by either party.

Respondent Ann Arbor Charter Township asks this

Court to deny the petition.

Respectfully submitted,

THOMAS R. MEAGHER

Counsel of Record

RICHARD C. KRaus

FosTER, Swirt, CoLiins & Smitu, PC.

313 S. Washington Square

Lansing, MI 48933

(517) 371-8100

Attorneys for Respondent