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

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 Of Certiorari to

the United States Court of Appeals for the Sixth Circuit

MOTION FOR LEAVE TO FILE AMICI CURIAE

AND BRIEF OF THE NATIONAL

ASSOCIATION OF HOME BUILDERS AND

FRANKLIN P. KOTTSCHADE

IN SUPPORT OF PETITIONERS

Duane J. Desiderio

Thomas J. Ward*

Christopher M. Whitcomb

National Association of

Home Builders

1201 15 Street, N.W.

Washington, D.C. 20005

(202) 866-8200

* Counsel of Record

September 24, 2008

MOTION TO FILE AMICUS BRIEF IN

SUPPORT OF PETITIONER

Pursuant to this Court’s Rule 37.2(b), the National

Association of Home Builders (NAHB) and Franklin

P. Kottschade respectfully request leave of this Court

to file their brief amici curiae in support of

Petitioners.! Petitioners’ counsel filed a blanket

consent letter with the Court on September 11, 2008.

Amici requested consent from Respondent; however,

on September 9, 2008, its counsel informed that he

could not authorize consent.

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. As the voice of America’s housing

industry, NAHB helps promote policies that will keep

housing a national priority. Founded in 1942, NAHB

is a federation of more than 800 state and local

associations. About one-third of NAHB’s 235,000

members are home builders and/or remodelers, and

its builder members construct about 80 percent of the

new homes constructed each year in the United

States. The remaining members are associates

! Counsel of record for all parties received notice at least 10 days

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

brief. One Letter of consent is on file with the Clerk. 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

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

contribution to its preparation or submission.

uu

working in closely related fields within the housing

industry, such as mortgage finance and building

products and services.

To effectuate its mission, NAHB strives to create

an environment in which all Americans have access to

the housing of their choice, and builders have freedom

to operate as entrepreneurs in an open and

competitive market. Toward this end, NAHB is a

vigilant advocate in the Nation’s courts, and it

frequently participates as a party litigant and amicus

curiae to safeguard the property rights and interests

of its members. NAHB was a petitioner in NAHB v.

Defenders of Wildlife, 127 S.Ct. 2518 (2007). It has

also participated before this Court as amicus curiae or

“of counsel” in a number of cases involving

landowners aggrieved by over-zealous regulation

under a wide array of statutes and regulatory

programs.?

> These include: Agins v. City of Tiburon, 447 U.S. 255 (1980);

San Diego Gas and Elec. Co. v. City of San Diego, 450 U.S. 621

(1981); Williamson County Regi Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); MacDonald, Sommer & Frates v.

Yolo County, 477 U.S. 340 (1986); First English Evangelical

Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987);

Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987); Pennell v.

City of San Jose, 485 U.S. 1 (1988); Yee uv. City of Escondido, 503

U.S. 519 (1992); Lucas v. S.C. Coastal Council, 505 U.S. 1003

(1992); Dolan v. City of Tigard, 512 U.S. 374 (1994); Babbitt v.

Sweet Home Chapter of Cmtys. for a Greater Ore., 515 U.S. 687

(1995); Suitum v. Tahoe Regi Planning Agency, 520 U.S. 725

(1997); City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687 (1999); Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); Palazzolo v.

Rhode Island, 533 U.S. 606 (2001); Franconia Assocs. v. United

States, 536 U.S. 129 (2002): Tahoe-Sterra Pres. Council, Inc. v.

ill

NAHB’s_ organizational policies have long

supported the rights of property owners to have their

constitutional claims heard by federal courts. NAHB

is disturbed that the federal courts are interpreting

this Court’s decision in Williamson County Reg’

Planning Comm'n v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985) (Williamson), in a manner that

always relegates property owners with legitimate

Fifth Amendment takings claims to litigate them only

in state court.

Mr. Kottschade is a homebuilder and developer

- who has attempted to have his takings claims heard

in federal court. After months of negotiating with

local officials regarding the use of property he owns in

the Rochester, Minnesota, the City imposed

financially ruinous conditions on his proposed project

to develop affordable residential townhomes. He thus

Tahoe Regi Planning Agency, 535 U.S. 302 (2002); Borden

Ranch P’ship v. U.S. Army Corps of Eng’rs, 537 U.S. 99 (2002);

City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.

188 (2003); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

Indians, 541 U.S. 95 (2004); San Remo Hotel, L.P. v. City and

County of San Francisco, 545 U.S. 323 (2005); Lingle v. Chevron

U.S.A., Inc., 544 U.S. 528 (2005); Kelo v. City of New London,

545 U.S. 469 (2005); S.D. Warren Co. v. Me. Bd. of Enuvtl. Prot.,

547 U.S. 370 (2006); Rapanos v. United States, 547 U.S. 715

(2006); John R. Sand and Gravel Co. v. United States, 128 S.Ct.

750 (2008); Summers v. Earth Island Inst., 490 F.3d 687 (9th

Cir. 2007), cert. granted, 128 S. Ct. 1118 (2008) (No. 07-463):

Entergy Corp. v. Envtl. Prot. Agency, 475 F.3d 83 (2d Cir. 2007),

cert. granted, 128 S. Ct. 1867 (2008) (consol. with Nos. 07-589

and 07-597); Winter v. Nat. Res. Def. Council, 518 F.3d 658 (9th

Cir. 2008), cert. granted, 128 S. Ct. 2964 (2008) (No. 07-1239);

and Coeur Alaska, Inc. v. S.E. Alaska Cons. Council, 486 F.3d

638 (9th Cir. 2007), cert. granted, 128 S. Ct. 2995 (2008) (No. 07-

984, consol. with 07-990).

Fy

lv

filed suit in federal court in June 2001, seeking just

compensation for a taking of his property under the

Fifth Amendment.

However, the federal courts dismissed his case for

not being ripe. In 2003, the Court of Appeals for the

Eighth Circuit expressed some sympathy for the

jurisdictional Catch-22 that Williamson causes for

takings plaintiffs, but its understanding only went so

far and it denied Mr. Kottschade federal court access.

Kottschade v. City of Rochester, 319 F.3d 1038, 1041

(8th Cir. 2003) (state-litigation rule has created an

“anomalous ... gap in Supreme Court jurisprudence’).

Subsequently, this Court denied Mr. Kottschade’s

petition for certiorari. 540 U.S. 825 (2003). He

remains mired in litigation, now in state court, and

has yet to receive a decision on the merits from any

court. To bring attention to the jurisprudential

dilemma caused by Williamson, Mr. Kottschade has

testified before Congress to advocate for legislative

reform measvres that would confer upon property

owners the right to federal court adjudication on Fifth

Amendment takings claims. See Private Property

Rights Implementation Act of 2005: Hearing on H.R.

4772 Before the Subcomm. on the Constitution of the

H. Comm. on the Judiciary, 109th Cong. (2006)

(statement of Franklin P. Kottschade, President,

North American Realty).

The proposed brief urges this Court to grant the

petition by demonstrating the contradictions that

exist between Williamson and the Court’s other cases

regarding federal court jurisdiction over takings

claims.’ Furthermore, we explain how these

conflicting opinions cause a trap for takings plaintiffs

and how Mr. Kottschade has been, unfortunately,

ensnared.

Accordingly, NAHB respectfully requests that this

motion, and the petition, be granted.

September 24, 2008

Respectfully submitted,

Duane J. Desiderio

Thomas J. Ward

(Counsel of Record)

Christopher M. Whitcomb

Attorneys for Amicus Curiae

National Association of Home Builders

3 E.g., San Remo Hotel v. City and County of San Francisco, 545

U.S. 323 (2005), City of Chicago v. Intl Coll. of Surgeons, 522

U.S. 156 (1997).

vii

TABLE OF CONTENTS

Page(s)

MOTION TO FILE AMICUS BRIEF

IN SUPPORT OF PETITIONER ...............00000000.0...008 i

SUMMARY OF ARGUMENT .......................ccceeseeeees 1

ae a I eocotashiwetatania 2

I. THE PETITION PROVIDES AN

APPROPRIATE VEHICLE TO

REEVALUATE THE STATE-LITIGATION

| EIR EASE ge 3 I ZOCOR oP 2

A. Williamson: The State-Litigation Rule ........... 2

B. San Remo: The State-Litigation Rule

ID rc cesmenssenes 3

C. Unlike San Remo, This Case Squarely

Questions the Validity of the State-

a cunsouees 6

il. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONTRADICTIONS IN THIS

COURT'S TAKINGS CASES AND

CONFLICTS IN THE LOWER COURTS —

ALL ARISING FROM THE STATE-

NII cavddscativessdesedencccesccesessectasacees 8

IT.

TABLE OF CONTENTS (conzt.)

Page (s)

A. Contradictions in This Court’s Takings

1. Conflict Between Williamson and

TESS SR SO OEE 2 ee ee 8

2. Conflict With This Court’s Decision

on Removal Jurisdiction in City of

inns se nisatinanindedeninectocvuvess 11

3. Conflict With This Court’s Decision

on Seventh Amendment Rights in

i cnedepecunnens 12

B. Conflict in the Circuit Courts...............0...0.... 13

1. Circuit Conflict on Claim Preclusion..... 13

2. Circuit Conflict on Removal

PEERLESS SEE ST OO 15

3. Circuit Conflict on Application of State-

Litigation Rule to Other Constitutional

RI ilicicdiitndotmceiarabsadeibeedadadimmnitiinenteousa 16

AMICUS FRANKLIN KOTTSCHADE’S

LITIGATION SAGA PERFECTLY ILLUSTRATES

TERED VURRMREREIEY EURIRE cncescsneccccescscncsessneneseese 18

A. The City Imposes Financially Ruinous

Conditions on Mr. Kottschade’s Development

Application, and He Initiates the Federal

NI detliictih Uienitinds edi nicasaenlsibedinelstekindihalrwadinnideaubincnedaien 19

ix

TABLE OF CONTENTS (cont.)

Page (s)

B. The Eighth Circuit Affirms Dismissal of Mr.

Kottschade’s Federal Takings Case .............. 21

C. Mr. Kottschade Remains Stuck in Williamson’s

Procedural Quagmire — In State Court....... 22

INET cakes tehsceciniinaedemiantininbinndatcnceinyssias SOR

TABLE OF AUTHORITIES

Page(s)

Cases

Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225,

(11th Cir. 1999), cert. denied, 531 U.S. 815

Asociacion de Subscripcion Conjunta del Seguro

de Responsabilidad Obligatorio, v. Flores Galarza,

A a We I ii i icici ccs invecunsebonnaseces 9

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

I ic acemeiel 18

Border Bus. Park, Inc. v. City of San Diego,

49 Cal. Rptr. 3d 259 (Cal. Ct. App. 2007),

cert. denied, 127 S. Ct. 2280 (2007)...................... 1-2

Braun v. Ann Harbor Charter Twp., 519 F.3d 564

(6th Cir. 2008)................ nisi slab aoiccacenbieasuadidiadiadebeniede 6, 17

Brubaker v. E. Hempfield Twp., 234 Fed. Appx.

es cies punionad 9

Chicago, B. & Q. R. Co. v. City of Chicago,

I cnicdiemnniuees 13

City of Chicago v. Int'l Coll. of Surgeons,

I a eenanhaosen 11, 12

City of Marion v. Howard, 855 N.E. 2d 994 (Ind.

2006), cert. dented, 126 S. Ct. 2358 (2006).............. 2

a

ia

:

?

.

si

“

r

xi

TABLE OF AUTHORITIES (cont.)

Page(s)

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999)................ 12,13

County Concrete Corp. v. Town of Roxbury,

GE Fe TI GG Gam. BOD ain onnciccc ccc cccccc.ccccee.ccccee 17

DLX, Inc. v. Kentucky, 381 F.3d 511

I a emoneonstepii 14

Dodd v. Hood River County, 59 F.3d 852

I cab egnesbesiio 14

Dolan v. City of Tigard, 512 U.S.

a cneseetoiues 20, 21, 24

First English Evangelical Lutheran Church of

Glendale v. Los Angeles, 482 U.S. 304 (1987)....... 24

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

NGI DAES RS SE a 17

Front Royal and Warren County Indus. Park Corp. v.

Town of Front Royal, Va., 135 F.3d 275

I a snenectonmnans 17

Henry v. Jefferson County Planning Comm'n,

34 Fed. Appx. 92 (4th Cir. 2002)................0............ 9

Hillsboro Props. et al. v. City of Rohnert Park et all.,

41 Cal. Rptr. 3d 441 (Cal. Ct. App. 2006),

cert. denied, 127 S. Ct. 836 (2006).......................... 2

Int'l Coll. of Surgeons v. City of Chicago, 153 F.3d

I a oa sk cabanmeiliae 15, 21

xii

TABLE OF AUTHORITIES (cont.)

Page(s)

Johnson v. City of Shorewood, --- N.W.2d ----,

2008 WL 434680 (Minn. Ct. App. 2008), petition for

cert. filed, 77 U.S.L.W. 3075 (U.S. Jul. 28,

i sescwenuonsce 1

Jones v. City of McMinnville, 244 Fed. Appx. 755, _

2007 WL 1417293 (9th Cir. 2007) ....................0000 15

Koscielski v. City of Minneapolis, 435 F.3d 898

ERROR 0 CPR es Sn Se ke 15

Kottschade v. City of Rochester, 319 F.3d 1038

(8th Cir.), cert. denied, 540 U.S.

RENE IER TASES a 6, 9, 21-22

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

REE RY AER TE EN ae a Oe 17

- McNamara v. City of Rittman, 473 F.3d 633 (6th

Cir. 2007), cert. denied, 128 S. Ct. 67 (2007) ...... 2,6

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825

READE IE ST es aca ap LE NEE Yor OS 20, 21

Ochoa Realty Corp. v. Faria, 815 F.2d 812

EE STE tel ce PEs el a 17

Palazzolo v. Rhode Island, 533 U.S. 606

EE EARNER LOND cy Declan cag eT 20, 23

Peduto v. City of N. Wildwood, 878 F.2d 725

SRE SEEPS SEER is Sib, See ase Con RST 14

xiii

TABLE OF AUTHORITIES (cont.)

Peters v. Fair, 427 F.3d 1035 (6th Cir. 2005) ............

Peters v. Vill. of Clifton, 498 F.3d 727 (7th Cir.

2007), cert. denied, 128 S. Ct. 1472 (2008)..........

Rockstead v. City of Crystal Lake, 486 F.3d 963

(7th Cir. 2007), cert. denied, 128 S. Ct. 415

Rocky Mountain Materials & Asphalt, Inc. v. Bd. of

County Comm'rs of El Paso County, 972 F.2d 309

ET, SE cnc dstishivamencncinnisanddsisiecinssoevineniapaaenieds 18

Samaad v. City of Dallas, 940 F.2d 925

I a caeeipasiddenaennign 9

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

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

Sandy Creek Investors, Ltd. v. City of Jonestown,

Fee ee ls I ivviacesenssccncsntcsnstsetensisons 16

Santini v. Conn. Hazardous Waste Mgmt. Serv.,

DEB F.Ba DAD GOS Cae. BO) ocrecccesesccevcsescsscccsescsecees 14

Sinaloa Lake Owners Ass'n v. City of Simi Valley,

882 F.2d 1398 (9th Cir. 1989)...................... eee eee 17

Sinclair Oil Corp. v. County of Santa Barbara,

96 F.3d 401 (Sth Cir. 1996), cert. denied,

ee Gh, IIE onckcecherectnsindesiatnnnsstasehawssuecesoners 9

ai) “—

ast

»

xiv

TABLE OF AUTHORITIES (cont.)

Page(s)

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84

(2d Cir. 1992), cert. denied, 507 U.S. 987 (1993) ....9

Suitum v. Tahoe Reg'l Planning Agency,

I dai ile itn entncannnnsiebesecnsens 2

Tahoe-Sierra Pres. Council v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002).................. 16

Torromeo v. Town of Fremont, N.H., 438 F.3d 113

(1st Cir. 2006), cert. dented, 127 S. Ct. 257

EIR FIER POG AC NRARAEE SEPIA ea 2

Wilkinson v. Pitkin County Bd. of Comm'rs,

142 F.3d 1319 (10th Cir. 1998)........................2. 6, 14

Williamson County Reg’ Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)............ passim

Yaklich v. Grand County, 2008 WL 1986470,

CREE SEES SEE 7 eRe 9

STATUTORY PROVISIONS

Statutes

ZBUS.C. § 1441(Aa) cece cccccccceecececevsvevsvecevevevevseeevevevevees 11

Be Is Te BP iirreccccccsseccscescesccccnssstonconensecccusessassdesinine 4

AZ U.S.C. § 1988 .....cccccccccsceccecescecceceececveceaeeaveaeeees 16, 22

XV

TABLE OF AUTHORITIES (cont.)

Page(s)

OTHER

Michael 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.

ee I cis bc inccaicuncdiieiechtenedigecesdubiantcininieniinienn 5

John Delaney & Duane Desiderio, Who Will Clean Up

the “Ripeness Mess”? A Call for Reform so Takings

Plaintiffs can Enter the Federal Courthouse, 31

Urb. Law. 195 (Spring 1999) ................ccssscessscceeeses 4

Steven J. Eagle, Regulatory Takings, 1062,

a i tae cerssmnsiontll 9

Madeline J. Meacham, The Williamson Trap,

OD FE ee ee 9-10

Thomas E. Roberts, Ripeness and Forum Selection

in Fifth Amendment Takings Litigation,

11 J. Land Use & Envtl. L. 37 (1995) ..................... 9

Private Prop. Rights Implementation Act of 2005:

Hearing on H.R. 1534 Before the Subcomm. on

Courts and Intellectual Prop. of the H. Judiciary

Comm., 105th Cong. 67 (1997) (test. of Prof.

Daniel R. Mandelker), reprinted in 31 Urb. Law.

I BIE icninntscbattnchivndsivssesionsneupioncdnanaposen 4

SUMMARY OF ARGUMENT

This matter provides another opportunity for the

Court to clarify the confusion regarding ripeness for

claims under the Fifth Amendment's Takings Clause.

Witliamson County Regl Planning Comm’n ov.

éemilton Bank, 473 U.S. 172 (1985), established the

rule that a takings claim does not become ripe for

federal court adjudication until the aggrieved

property owner pursues inverse condemnation

litigation in state court. Four concurring Justices in

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

Francisco, 545 U.S. 323 (2005), stated that this state-

litigation rule “may have been mistaken,” and that

“fijt is not clear that Williamson County was correct

in demanding” that a claimant must first seek a

compensation remedy through state litigation as a

prerequisite to ripen a federal takings claim. Jd. at

348-349 (Rehnquist, C.J., concurring). The San Remo

concurring Justices believed that Williamson’s “state-

litigation rule has created some real anomalies,

justifying our revisiting the issue." Jd. at 351.

The court of appeals’ decision provides the

opportunity “revisit” the “real anomalies” created by

Williamson. The state-litigation rule has been

thoroughly aired in the lower federal and state courts.

The Court has denied at least seven petitions for

certiorari, requesting review of Williamson, since its

decision in San Remo; one pending petition asks a

similar question.! Postponing review will not

' See Johnson v. City of Shorewood, ---N.W.2d----, 2008 WL

434680 (Minn. Ct. App. 2008), petition for cert. filed, 77 U.S.L.W.

3075 (U.S. Jul. 28, 2008) (No. 08-127), Border Bus. Park, Inc. v

City of San Diego, 49 Cal. Rptr. 3d 259 (Cal. Ct. App. 2007), cert.

contribute to resolution of the open questions

generated by Williamson, inconsistencies within this

Court’s takings jurisprudence will linger, and

conflicting lower court decisions will proliferate.

Respectfully, NAHB encourages this Court to grant

the petition, reconsider the state-litigation element of

Williamson’s ripeness doctrine — and dispense with

it.

ARGUMENT

I. THE PETITION PROVIDES AN

APPROPRIATE VEHICLE TO RE-

EVALUATE THE STATE-LITIGATION

RULE.

A. Williamson: The State-Litigation Rule.

“There are two independent prudential hurdles” to

ripen a takings claim. Suitum v. Tahoe Regi

Planning Agency, 520 U.S. 725, 733-34 (1997). These

were established in Williamson. First, takings claims

are not ripe “until the administrative agency has

arrived at a final, definitive position regarding how it

will apply the regulations at issue to the particular

denied, 127 S. Ct. 2280 (2007), Hillsboro Props. et al. v. City of

Rohnert Park et al., 41 Cal. Rptr. 3d 441 (Cal. Ct. App. 2006),

cert. dented, 127 S. Ct. 836 (2006), Rockstead v. City of Crystal

Lake, 486 F.3d 963 (7th Cir. 2007), cert. denied, 128 S. Ct. 415

(2007), Torromeo v. Town of Fremont, N.H., 438 F.3d 113 (1st

Cir. 2006), cert. denied, 127 S. Ct. 257 (2006), Peters v. Vill. of

Clifton, 498 F.3d 727 (7th Cir. 2007), cert. denied, 128 S. Ct.

1472 (2008), McNamara v. City of Rittman, 473 F.3d 633 (6th

Cir. 2007). cert. denied, 128 S. Ct 67 (2007), City of Marion v.

Howard, 855 N.E. 2d 994 (Ind. 2006), cert. denied, 126 S. Ct.

2358 (2006).

3

land in question.” Williamson, 473 U.S. at 191. This

“finality requirement is concerned with whether the

initial decisionmaker has arrived at a definitive

position on the issue that inflicts an actual, concrete

injury ....” Id. at 193. The finality requirement is not

at issue.

Williamson's second ripeness requirement is called

into question here: “[If] a State provides an adequate

procedure for seeking just compensation, the property

owner cannot claim a violation of the Just

Compensation Clause until it has used the procedure

and has been denied just compensation.” Id. at 195.

Concurring in San Remo, the late Chief Justice

Rehnquist, joined by former Justice O’Connor and

Justices Kennedy and Thomas, labeled this

requirement the “state-litigation rule.” San Remo,

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

described the rule as follows: “Until the claimant had

received a final decision of compensation through all

available state procedures, such as by an inverse

condemnation action ... he ‘could not claim a violation

of the Just Compensation “lause.” Jd. at 349 (citing

Williamson, 473 U.S. at 195-196).

B. San Remo: The State-Litigation Rule

Meets Issue Preclusion.

San Remo did not directly address the validity of

the state-litigation rule. Rather, the question was

whether a takings claimant, in initial state litigation,

could reserve a Fifth Amendment claim for

subsequent federal adjudication. San Remo ruled

that such a reservation was inappropriate, resolving a

circuit split on that point. Jd. at 337-338. The Court

further held it was “not free to disregard the full faith

and credit statute [28 U.S.C. § 1731] solely to

preserve the availability of a federal forum” after

initial state litigation mandated by Williamson. Id.

at 347. Issue preclusion was thus held to bar

relitigation in federal court after a “state court

actually decided an issue of fact or law that was

necessary to its judgment” — even if a takings

plaintiff “would have preferred not to litigate [first] in

state court, but was required to do so by statute or

prudential rules.” Id. at 342.

The San Remo concurrence was concerned that the

Court’s holding regarding issue preclusion “ensures

that litigants who go to state court to seek

compensation will likely be unable later to assert

their federal takings claims in federal court ....” Id. at

351 (Rehnquist, C.J., concurring).2 Takings law

experts have put the problem this way:

2 This is exactly what has transpired. By the mid-1990s, the

lower federal courts overwhelmingly invoked the state-litigation

rule to avoid adjudicating the merits of Fifth Amendment

takings claims. See John Delaney and Duane Desiderio, Who

Will Clean Up the “Ripeness Mess’? A Call for Reform so

Takings Plaintiffs can Enter the Federal Courthouse, 31 Urb.

Law. 195, 203-205 (Spring 1999) (surveying all land-use takings

cases with a federal court decision from 1990-1998). As a

preeminent takings scholar testified before Congress, the lower

federal courts have exhibited “wholesale abdication of federal

risdiction” over Fifth Amendment claims and have achieved

che “undeserved and unwarranted result [of] avoid{ing] the vast

majority of takings cases on their merits.” Private Prop. Rights

Implementation Act of 2005: Hearing on H.R. 1534 Before the

Subcomm. on Courts and Intellectual Prop. of the H. Judiciary

Comm., 105th Cong. 67 (1997) (test. of Prof. Daniel R.

Mandelker), reprinted in 31 Urb Law. 234 (Summer 1999)

[A]s a reward for following the rules and trying

to ripen their federal claims in state court as

spelled out by Williamson County, property

owners have the rug yanked out from under

them by federal courts saying the door to that

courthouse is now closed, because the very act

of “ripening” the case actually sounded its

death knell.

Michael Berger and 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, 687 (Fall

2004).

The preclusive effect of state takings decisions,

causing the virtual wholesale relinquishment of

jurisdiction by the federal courts over Fifth

Amendment takings claims, prompted the San Remo

concurring Justices to question the state-litigation

rule’s propriety. They wrote it was not “clear” that

Williamson “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). The

concurrence doubted that “either constitutional or

prudential principles” should first require exhaustion

of all state compensation procedures before a

claimant can vindicate Fifth Amendment rights. /d.

The concurring Justices acknowledged that

Williamson's “state-litigation rule has created some

real anomalies, justifying our revisiting the issue.”

Id. at 351.4

C. Unlike San Remo, This Case Squarely

Questions the Validity of the State-

Litigation Rule.

The decision below provides a textbook example of

Williamson's effect in barring federal courts from

deciding Fifth Amendment takings claims on their

merits. While the state-litigation rule was not teed-

up for this Court’s consideration in San Remo, it is

directly in play in the case at bench. Here,

Petitioners’ could no longer operate profitable farms.

Braun v. Ann Harbor Charter Township, 519 F.3d

564, 567 (6th Cir. 2008). They thus sought approval

from the township to use their property for residential

housing. Jd. After the town’s officials denied

Petitioners’ request for rezoning, they filed a takings

and due process suit in state court. The trial court

and the Michigan Court of Appeals, however, held

that the case was not ripe because the Petitioners had

not received a final decision. Thereafter, they

3 The lower courts would agree. See, e.g., McNamara v. City of

Rittman, 473 F.3d 633, 640 (6th Cir.) (“It may seem a bit

perverse that one takings claim (past violations) be barred by

statute of limitations because it was delinquently filed in federal

court, and yet a similar claim (continuing violations) be barred

by ripeness because it was prematurely filed in federal court’),

cert. denied, __ U.S. ___ (2007): Kottschade v. City of Rochester,

319 F.3d 1038, 1041 (8th Cir.) (state-litigation rule has created

an “anomalous ... gap in Supreme Court jurisprudence”), cert.

denied, 540 U.S. 825 (2003); Wilkinson v. Pitkin County Bd. of

Comm'rs, 142 F.3d 1319, 1325 n. 4 (10th Cir. 1998) (‘It 1s

difficult to reconcile the {state litigation] ripeness requirement of

Williamson” with issue and claim preclusion)

7

obtained their final decision by seeking a variance —

which was denied. Id. at 567-69.

Still unable to put their property to economically

viable use, the landowners brought suit in federal

court. Again, they claimed violations of the Fifth and

Fourteenth Amendments. However, avoiding the

merits, both the district court and court of appeals

dismissed the suit for lack of jurisdiction. The courts

explained that to ripen their claims, Williamson

required the Petitioners to first litigate them in state

court. Id.

In San Remo, many amici (including NAHB)

urged the Court to directly confront Williamson. But

the invitation was declined because “no court below

ha[d] addressed the correctness of Williamson

County, neither party ha[d] asked us to reconsider it,

and resolving the issue could not [have] benefit[ed]

petitioners.” Id. San Remo, 545 US. at 352.

(Rehnquist, C.J., concurring). The converse is true

here. First, the court of appeals did consider

Williamson's impact, and second, one of the petition’s

questions plainly asks the Court to reassess the state-

litigation rule.

Third, resolving the issue would benefit

Petitioners. If the Court reconsiders the state-

litigation rule and removes it from the ripeness

landscape, Petitioners would receive a_ federal

adjudication on whether the township violated their

rights under the Fifth and Fourteenth Amendments

of the Constitution.

In short, this is an “appropriate case” to

“reconsider whether plaintiffs asserting a Fifth

Amendment takings claim based on the final decision

of a state or local government entity must first seek

compensation in state courts.” San Remo, 545 U.S. at

352 (Rehnquist, C.J., concurring).

Il. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONTRADICTIONS IN THIS

COURTS =TAKINGS CASES AND

CONFLICTS IN THE LOWER COURTS —

ALL ARISING FROM THE STATE-

LITIGATION RULE.

The San Remo concurring Justices acknowledged

that Williamson’s “state-litigation rule has created

some real anomalies, justifying our revisiting the

issue.” Id. at 351. Those anomalies include

contradictions within this Court's own takings

decisions, as well as divisions among the circuit

courts of appeal.

A. Contradictions in This Court’s Takings

Cases.

1. Conflict Between Williamson and San Remo.

Tension is especially pronounced between Williamson

and San Remo. The Williamson Court stated that

exhaustion of state compensation procedures is a first

step to ripen federal takings claims: “/UJntil [plaintiff]

has utilized [state] procedure[s], its takings claim is

premature.” Williamson, 473 U.S. at 197 (emphasis

—— EE ——— = lc OO rl lO eee, ee

supplied).4 Virtually every court of appeals has

interpreted this language to mean that a Fifth

Amendment takings claim is not ripe — it does not

exist — until a property owner has filed suit for

inverse condemnation in state court and has been

denied ratcangenpestats Many commentators also read

Williamson as provi ling the opportunity for ultimate

federal adjudication following denial of compensation

in state court.® ;

!

N

4 See also Williamson, 473 U.S. at 194 (“A second reason the

takings claim is not yet'ripe is that respondent did not seek

compensation through the procedures the state has provided for

doing so”) (emphasis supplied); id. at 195 (“the property owner

cannot claim a violation of the Just Compensation Clause until it

has used the [available state] procedure and been denied just

compensation”) (emphasi¢ supplied).

5 E.g., Asociacion de Subscripcion Conjunta del Seguro de

Responsabilidad Obligatprio, v. Flores Galarza, 484 F.3d 1, 16-

19 (ist Cir. 2007); Southview Assocs., Ltd. v. Bongartz, 980 F.2d

84, 99-100 (2d Cir. 1992), cert. denied, 507 U.S. 987 (1993);

Brubaker v. E. Hempfidld Twp., 234 Fed. Appx. 32, 36-37 (3d

Cir. 2007); Henry v. Jefferson County Planning Comm'n, 34 Fed.

Appx. 92, 96 (4th Cir. 2); Samaad v. City of Dalias, 940 F.2d

925, 933-36 (5th Cir. 1991); Peters v. Fair, 427 F.3d 1035, 1038

(6th Cir. 2005); Peters 1). Village of Clifton. 498 F.3d 727, 731-734

(7th Cir 2007); Kotschade vu. City of Rochester, 319 F.3d 1038,

1041 (8th Cir.), cert. jlenied, 540 U.S. 825 (2003); Sinclair Oil

Corp. v. County of Sajta Barbara, 96 F.3d 401, 405-07 (9th Cir.

1996), cert. denied, 623 US. 1059 (1998); -Yaklich v. Grand

County, 2008 WL 1986470 at *4-*6 (10th Cir. 2008); Agripost,

Inc. v. Miami-Dade} County, 195 F.3d 1225, 1234 (11th Cir.

1999), cert. denied, 5B1 U.S. 815 (2000).

6 See, e.g., Steven J. Eagle, Regulatory Takings, 1062, 2d ed.

(2001) (“The ‘ripen ss’ metaphor is one that promises ultimate

vindication”); Tho ES E. Roberts, Ripeness and Forum Selection

in Fifth Amendment Takings Litigation, 11 J. Land Use & Envtl.

L. 37, 67 (1995) (‘the language ... suggests that the state law is

merely preparatory to a federal suit”); Madeline J. Meacham,

10

The Court’s opinion in San Remo, however,

upends this widespread understanding. It declared

that federal takings claims could, in fact, be asserted

during a state lawsuit:

The requirement that aggrieved property

owners must seek “compensation through the

procedures the State has provided for doing so”

... does not preclude state courts from hearing

simultaneously a_ plaintiffs request for

compensation under state law and the claim

that, in the alternative, the denial of

compensation would violate the Fifth

Amendment of the Federal Constitution.

San Remo, 545 U.S. at 346 (citing Williamson, 473

U.S. at 194) (emphasis supplied). Thus, while

Williamson rules that a federal takings claim is not

ripe until after the state denies compensation, San

Remo rules that federal claims can be brought

simultaneously with state claims in state court.

So, which is the rule? Are Williamson and San

Remo reconcilable, or in hopeless conflict? How is it

that a Fifth Amendment claim can be brought

simultaneously with a state inverse condemnation

claim in state court, if that federal claim is not ripe

until after the state denies compensation? How would

the process of bringing simultaneous claims work?

Should the state and federal takings claims be

The Williamson Trap, 32 Urb. Law. 239, 249 (2000) (language

.. of Williamson suggests that a federal claim will survive after

disposition in the state court”)

11

brought in state court sequentially, in that order?

Are they part of the same, or separate, lawsuits?

What effect does San Remo’s simultaneous claim rule

have on case law from the lower federal courts, cited

supra n. 5, which have been virtually unanimous that

they lack jurisdiction over Fifth Amendment takings

claims until after state litigation is over? Are these

opinions now overruled?

The petition should be granted so the Court can

clarify the apparent contradictions between

Williamson's rule that state litigation is a condition

precedent to ripen a federal takings claim, and San

Remo’s rule that federal and state takings cases can

be brought simultaneously in state court.

Conflict With This Court’s Decision on Removal

PD. in City of Chicago. Another anomaly is

that the _ state-litigation rule is apparently

irreconcilable with City of Chicago v. Intl Coll. of

Surgeons, 522 U.S. 156 (1997). There, a plaintiff

brought both federal and state takings claims in state

court. The city then removed the case to federal

court. This Court, without discussing Willramson,

allowed the removal to stand because “a case

containing claims that local administrative action

violates federal law ... is within the jurisdiction of the

federal district courts.” Jd. at 528-529. Under the

federal removal statute,’ a case can be removed from

state to federal court only if it could have been

brought in federal court originally.

7“fA]ny civil action brought in a State court of which the district

courts of the United States have original jurtsdiction, may be

removed by the defendant ... to the district court.” 28 U.S.C. §

1441(a) (emphasis supplied.)

12

Therein, the seeds of more conflict are sown.

Under Williamson, federal courts do not have original

jurisdiction over federal takings claims because they

are not ripe until the property owner brings state

litigation and loses. San Remo confirms that there is

no original federal court jurisdiction over federal

takings claims, and counsels that they may be

brought simultaneously with state inverse

condemnation claims in state court. Yet under City of

Chicago, federal courts do have original jurisdiction

over federal takings claims because a municipality

has the right to remove them to federal court. The

upshot is that federal courts decide federal takings

claims only at the whim of municipal defendants who

decide to exercise their removal option. The petition

should be granted to address the dilemma created by

Williamson, San Remo, and City of Chicago, as to

whether federal courts do, in fact, possess “original

jurisdiction” over Fifth Amendment takings claims.

3. Conflict With This Court's Decision on Seventh

Amendment Rights in Del Monte Dunes. The state-

litigation rule also generates friction with City of

Monterey v. Del Monte Dunes, 526 U.S. 687 (1999).

There, this Court held that takings plaintiffs in

Section 1983 litigation have a Seventh Amendment

right to a jury trial on issues of government liability.

That is in stark contrast to the practice in state courts

generally, which do not submit takings liability issues

to juries. Jd. at 719. If Williamson truly compels

state litigation to ripen Fifth Amendment claims, and

San Remo allows simultaneous litigation of federal

and state takings claims in state court, then the

Seventh Amendment rights confirmed by Del Monte

13

Dunes are illusory in states that do not provide jury

trials on takings liability.

Unlike the Fifth Amendment, which was the first

guarantee in the Bill of Rights to apply to the states

through the Fourteenth Amendment, see Chicago, B.

& Q. R. Co. v. City of Chicago, 166 U.S. 226 (1897),

“[ijt is settled law that the Seventh Amendment does

not apply” to “suits decided by state court.” Del Monte

Dunes, 526 U.S. at 719. This Court’s attention is

needed to ensure that the state-litigation rule does

not abrogate Seventh Amendment rights guaranteed

by the United States Constitution.

B. Conflict in the Circuit Courts.

1. Circuit Conflict on Claim Preclusion. San

Remo’s holding is arguably limited to issue preclusion

or collateral estoppel. However, the language in the

Court’s opinion is broad enough to encompass claim

preclusion or res judicata as well.? In any event,

there is a circuit conflict as to whether the state-

litigation rule triggers res judicata to bar subsequent

8 See San Remo, 545 US. at 342 (“The relevant question ... is

whether the state court actually decided an issue of fact or law

that was necessary to its judgment”); id. at 343 (“... we are

presently concerned only with issues actually decided by the

state court[s] that are dispositive of federal claims raised under

§ 1983”).

9 Id. at 336 (full faith and credit statute “has long been

understood to encompass the doctrines of res judicata, or ‘claim

preclusion, and collateral estoppel, or ‘issue preclusion”’); id. at

344 (federal courts may not “simply create exceptions” to full

faith and credit statute and “depart| | from traditional rules of

preclusion’) (citations omitted).

14

federal takings claims. The Second, Sixth, and Ninth

Circuits have decided that the Williamson

requirement to initially litigate in state court does not

extinguish Fifth Amendment claims subsequently

filed in federal court.!° As the Sixth Circuit observed

in rejecting a claim preclusion defense: “[The]

interaction of Williamson County's ripeness

requirements and the doctrine of claim preclusion

could possibly operate to keep every regulatory

takings claimant out of federal court.” DLX, Inc., 381

F.3d at 521. The Third, Seventh and Tenth Circuits

disagree. Those Circuits extend claim preclusion to

bar subsequent federal takings claims after

mandatory state proceedings have resulted in the

denial of compensation under state law.'!

Significantly, the Ninth Circuit has plainly

distinguished hetween issue and claim preclusion in

the context of the state-litigation rule. In San Remo,

364 F.3d 1088, 1096 (9th Cir. 2004), it invoked issue

preclusion to bar relitigation in subsequent federal

proceedings, and this Court affirmed, 545 U.S. 323

(2005). But in Dodd, 59 F.3d at 869-70, the Ninth

Circuit refused to deal the claim preclusion card:

19 See Santini v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d

118 (2d Cir. 2003), overruled as to issue preclusion and claim

reservation by San Remo, 545 U.S. at 342; DLX, Inc. v.

Kentucky, 381 F.3d 511 (6th Cir. 2004); Dodd v. Hood River

County, 59 F.3d 852 (9th Cir. 1995).

‘1! See Rockstead v. City of Crystal Lake, 486 F.3d 963 (7th Cir.

2007); Wilkinson v. Pitkin County Bd. of County Comm'rs, 142

F.3d 1319 (10th Cir. 1998); Peduto v. City of N. Wildwood, 878

F.2d 725 (3d Cir. 1989).

15

[To] hold that a takings plaintiff must first

present a Fifth Amendment claim to the state

court system ... would be to deny a federal

forum to every takings claimant. We are

satisfied that Williamson County may not be

interpreted to command such a revolutionary

concept and draconian result. (Emphasis

supplied.)

The circuits thus disagree on the application of claim

preclusion following Williamson state proceedings,

and this Court should intervene.

2. Circuit Conflict on Removal Jurisdiction. As

discussed supra pp. 11-12, Int College of Surgeons

allows a municipal defendant to remove a takings

case to federal court after a plaintiffs initial state

filing. However, the lower courts are split on whether

they have jurisdiction to decide Fifth Amendment

takings claims that have been so removed. The

Seventh Circuit, on remand in Intl College of

Surgeons, decided it could resolve a remeved federal

takings claim on the merits, despite the lack of prior

state litigation. Jnt7 Coll. of Surgeons v. City of

Chicago, 153 F.3d 356, 360 (7th Cir. 1998). In

contrast, the Eighth Circuit has held it lacked

jurisdiction over a federal takings claim that a

municipal defendant removed to federal court,

precisely because no original state proceedings

ripened the federal claim. The stunning aspect of this

decision is that the federal court dismissed for lack of

jurisdiction, even though the plaintiff filed initially in

state court and was forced into federal court upon the

city’s removal motion. Koscielski vu. City of

Minneapolis, 435 F.3d 898, 903-904 (8th Cir. 2006).

16

See also Jones v. City of McMinnville, 244 Fed. Appx.

755, 2007 WL 1417293 (9th Cir. 2007) (dismissing

plaintiffs’ federal takings claim without prejudice

after City removed the case to federal court).

The Fifth Circuit has similarly whipsawed a

takings plaintiff who filed suit originally in state

court, only to see a municipal defendant remove the

matter to federal court — and then argue for

dismissal because Williamson's state-litigation rule

went unsatisfied. The Fifth Circuit rewarded the city

for its chutzpah by dismissing the case. Sandy Creek

Investors, Ltd. v. City of Jonestown, 325 F.3d 623, 626

(5th Cir. 2003).

“{CJonsiderations of fairness and justice” le at the

heart of the Takings Clause. Tahoe-Sierra Pres.

Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302,

333 (2002). It is neither fair nor just to allow a

municipal defendant to remove a takings case to

federal court, and then seek and receive a dismissal

for lack of a prior state ripening suit. The circuits are

split on how to handle removed takings cases, and

this Court should address the conflict.

3. Circuit Conflict on Application of State-

Litigation Rule to Other Constitutional Claims. The

lower federal courts also clash on whether the state-

litigation rule applies to due process and equal

protection claims, in addition to takings claims. As

the Petitioners did in this matter, in many

constitutional property rights cases, plaintiffs assert

some combination of takings, due process, and equal

protection violations under 42 U.S.C. § 1983. In the

case below, the court recognized that even within the

17

Sixth Circuit, it is unclear whether due process and

equal protection claims must satisfy Williamson's

exhaustion requirements. Braun, 519 F.3d at 572.

While holding that the Brauns’ procedural due

process claims must satisfy the exhaustion

requirements, it assumed the substantive due process

claims do not. Furthermore, with respect to equal

protection, the court of appeals recognized that

“conflicting case law exists” concerning whether

Williamson applies. Id. at 574. In comparison, the

Seventh Circuit has held that Williamson's

exhaustion requirement applies to both taking and

substantive due process claims, yet not equal

protection claims. Forseth v. Vill. of Sussex, 199 F.3d

363, 370-71 (7th Cir. 2000); See also Ochoa Realty

Corp. v. Faria, 815 F.2d 812, 817 n.4 (1st Cir. 1987)

(providing that state inverse condemnation claims

must be exhausted for both federal takings and due

process claims, without opining on equal protection.).

Finally, some circuits restrict Williamson's state

remedies requirement to takings claims only.}2

The Tenth Circuit has issued two, irreconcilable

rulings on this point. It has applied Williamson's

\2 See, e.g., County Concrete Corp. v. Town of Roxbury, 442 F.3d

159, 169 (3d Cir. 2006) (“[G]iven that the ‘exhaustion of just

compensation procedures’ requirement only exists due to the

‘special nature of the Just Compensation Clause,’ it is

inapplicable to appellants’ facial [substantive due process] and

[equal protection] claims’; citations omitted). Accord Sinaloa

Lake Owners Ass'n. v. City of Simi Valley, 882 F.2d 1398, 1404

(9th Cir. 1989); Front Royal and Warren County Indus. Park v.

Town of Front Royal, 135 F.3d 275, 283 n.3 (4th Cir. 1998);

McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir.

1997).

18

state-litigation rule to takings and procedural due

process claims brought under section 1983. See Rocky

Mountain Materia!s & Asphalt, Inc. v. Bd. of County

Comm'rs of El Paso County, 972 F.2d 309, 311 (10th

Cir. 1992). Yet it has also ruled that the state-

litigation rule is not applicable to any claims sounding

in takings, due process, or equal protection, because a

plaintiff “need not exhaust his available

administrative remedies prior to filing a § 1983 action

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

708 (10th Cir. 1996).

This Court should grant the petition to provide

guidance on whether the state-litigation rule

encompasses due process and equal protection, as

well as takings, claims.

lll. AMICUS FRANKLIN KOTTSCHADE’S

LITIGATION SAGA PERFECTLY

ILLUSTRATES THE WILLIAMSON TRAP.

Amicus curiae Franklin P. Kottschade, a

homebuilder and developer from Rochester,

Minnesota, knows all too well the dilemma created by

Williamson’s ripeness requirements. Respectfully,

the Court must understand that the conflicts and

confusion created by Williamson are not simply the

stuff of law review articles, or rarefied judicial

debates on jurisdictional ripeness. This issue has real

world consequences. It affects families, businesses,

and livelihoods. Indeed, for the past seven years, Mr.

Kottschade has been trying to overcome the virtually

insurmountable hurdles that Williamson has erected

for property rights claimants.

19

For nearly a decade, Mr. Kottschade has

endeavored to obtain just compensation from the City

of Rochester, to redress what he believes was a taking

of his property under this Court’s precedents. Despite

his good faith attempts to comply with this Court’s

ripeness requirements, he has been relegated to a

procedural purgatory with courts at all levels in both

the federal and state systems dodging the merits of

his claim.

A. The City Imposes Financially Ruinous

Conditions on Mr. Kottschade’s

Development Application, and He

Initiates the Federal Suit.

In 2000, Mr. Kottschade sought to develop

townhomes on a 16.4 acre parcel of land he acquired

in 1992. The City of Rochester granted him a permit

approval in 2000, but only if he agreed to myriad,

onerous conditions.'? These exactions had the effect

of reducing the number of townhomes he could build

from 104 units to 26 units, and increased the

development cost for the homes from $22,000 to

$90,000 per unit. Mr. Kottschade believed that the

City’s extortionate demands contravened precedent

on unconstitutional exactions. As the Court has

13 Among other things, the City has demanded that Mr.

Kottschade convey to the City a 50-foot public right-of-way

because it might need it at some future point for a road; accept

“limited access" to the expanded collector road from his

development; grade the property at his expense to make it

compatible with one of the City’s proposed road reconstruction

projects; and pay the cash equivalent of a 1.7-acre parkland

dedication requirement

20

ruled, development conditions imposed by land-use

officials must be based on an “individualized

determination" of the impacts caused by the

development, and the government must prove both an

"essential nexus " and "rough proportionality" — logic

and balance — between the development's impacts and

what the government exacts from the property owner.

See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825

(1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).

To achieve administrative finality, Mr. Kottschade

petitioned the city for relief from the conditions by

seeking a variance, explaining that the conditions

would render the proposed development economically

unfeasible.'4 In 2001, the city upheld the

development conditions and denied Mr. Kottschade’s

variance.

To vindicate his Fifth Amendment rights, Mr.

Kottschade filed an action in the U. S. District Court

for the District of Minnesota in 2001. He alleged that

the permit exactions violated the takings clause

14 To receive a “final decision” from a land-use agency and thus

render a takings claim ripe for judicial review, this Court has

stated that the aggrieved property owner must pursue any

administrative variances from the government's determination.

See, e.g., Williamson, 473 U.S. at 193 ("Resort to the procedure

for obtaining variances would result in a_ conclusive

determination by the Commission whether it would allow

respondent to develop the subdivision in the manner respondent

proposed"); Palazzolo v. Rhode Island, 533 U.S. 606, 609 (2001)

("A takings claim based on a law or regulation which is alleged

to go too far in burdening property depends upon the

landowner's first having followed reasonable and necessary steps

to allow regulatory agencies to exercise their full discretion in

considering development plans for the property, including the

opportunity to grant any variances or waivers allowed by law”).

21

under the Nollan/Dolan doctrine, and that he was

therefore owed just compensation. In 2002, the

district court dismissed the federal case, holding that

Mr. Kottshade’s claims were not ripe because he did

not first exhaust litigation in the Minnesota state

courts as required by Williamson. He then appealed

to the Eighth Circuit.

B. The Eighth Circuit Affirms Dismissal of

Mr. Kottschade’s Federal Takings Case.

In his federal appeal, Mr. Kottschade argued that

Williamson's state-litigation rule is contrary to Jnt7

College of Surgeons’ determination that federal courts

have original jurisdiction over federal takings claims.

See supra at 11-12. He explained that if he is

required to seek a state-court remedy first, he will

most likely be denied a federal forum altogether

under claim and/or issue preclusion. He even asked

the Eighth Circuit to hold that an adverse state-court

decision would not bar him from filing a subsequent

federal takings claim in order to preserve his Fifth

Amendment claims.

Sympathetic to a degree, the Eighth Circuit

acknowledged that his “suggestion has the virtue of

logic and is tempting,” but ultimately declined to

adopt it. Kottschade v. City of Rochester, 319 F.3d

1038, 1041 (8th Cir. 2003). The court held that it was

simply too early to determine whether claim or issue

preclusion would, in fact, be applied in the future. /d.

at 1042. Ultimately, the Eighth Circuit ruled that

Mr. Kottschade’s claim was not ripe under

Williamson, because he did not pursue initial state

court litigation for a compensation remedy. Jd. This

22

Court subsequently denied certiorari review. 540

U.S. 825 (2003).

C. Mr. Kottschade Remains Stuck in

Williamson’s Procedural Quagmire — In

State Court.

After Mr. Kottschade was dismissed in federal

court, he pursued another round of negotiations with

the city to try and salvage his project. But Rochester

officials were still unwilling to budge on their

financially ruinous conditions. Thus, in December

2006, Mr. Kottschade brought an action in state trial

court. There, he sought mandamus relief ordering

the city to commence a condemnation action to

determine the damages arising from the taking. He

also sought damages under 42 U.S.C. § 1983, to

redress the city’s violations of the Fifth and

Fourteenth Amendments.

The city moved for summary judgment, arguing

that Mr. Kottschade’s claims were barred by the

applicable six-year statute of limitations under state

statute law. The initial development approval (with

the unconstitutional exactions) came on July 5, 2000,

and Mr. Kottschade brought his state court action on

December 22, 2006. Despite clear Supreme Court

precedent that pursuit of a variance is necessary

before local officials render a final decision for land-

use purposes, Rochester has contended that Mr.

Kottschade did not need to seek a variance, and that

he should have realized that the city’s initial approval

constituted a final decision. Of course, if Mr.

Kottschade had not sought a variance, the city could

just as easily have argued that he needed to pursue

23

that procedure as a necessary element to ripen his

claim, and wielded Williamson and Palazzolo (supra

n. 14) to argue that no final decision had been

rendered.

Despite the fact that the city accepted, processed,

and ruled on Mr. Kottschade’s variance request, the

state trial court granted the city’s motion for

summary judgment, concluding that the action was

time-barred. That decision left him, once again,

without a ruling on the constitutionality of the city’s

onerous permit conditions.

Mr. Kottschade is now in the midst of an appeal to

the intermediate appellate level in Minnesota. He

argues that the trial court erred when it determined

that a variance was not necessary to achieve

administrative finality under Williamson. Only if he

prevails in this intermediate appeal will Mr.

Kottschade finally have the opportunity to litigate the

merits of his takings claim. If he does not, then his

sole remaining options are to seek discretionary

review from the Minnesota Supreme Court and this

Court.

Mr. Kottschade’s saga demonstrates’ that

Williamson has the ironic effect of rendering

constitutionally-protected property rights a fiction,

because they cannot be robustly discussed, debated,

and defended in federal court. Constitutional rights

are made illusory in this system of municipal

gamesmanship, where courts are given license to bob

and weave through a jurisdictional maze that allows

them to hide from the merits. Respectfully, the

petition should be granted so this Court can reconfirm

24

that it “see[s] no reason why the Takings Clause of

the Fifth Amendment, as much a part of the Bill of

Rights as the First Amendment or Fourth

Amendment, should be relegated to the status of a

poor relation ....”". Dolan v. City of Tigard, 512 U.S.

374, 393 (1994).

CONCLUSION

The Court should no _ longer delay its

reconsideration of the state-litigation rule. When

Williamson was decided in 1985, this Court’s modern

takings jurisprudence was still 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

become somewhat more defined, but the most basic,

fundamental jurisdictional question — “Can a federal

court ever decide a federal takings claim?” — remains

undeciphered. This is a question of overwhelming

constitutional importance.

For the foregoing reasons, the petition should be

granted.

25

September 24, 2008.

Respectfully submitted.

Duane J. Desiderio

Thomas J. Ward

Counsel of Record

Christopher M. Whitcomb

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