Amicus Curiae Brief — Knick v. Twp. of Scott, 139 S. Ct. 50 (2018) (No. 17-647)

3u the Supreme Court of the United States

ROSE MARY KNICK,

Petitioner,

Vv.

TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF THE STATES OF CALIFORNIA, DELAWARE,

INDIANA, IOWA, LOUISIANA, MAINE, MARYLAND,

MINNESOTA, NEW JERSEY, NEW MEXICO, NEW YORK,

OREGON, RHODE ISLAND, UTAH, VERMONT,

WASHINGTON, THE COMMONWEALTH OF

MASSACHUSETTS, AND THE DISTRICT OF COLUMBIA AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

XAVIER BECERRA NICOLE U. RINKE*

Attorney General of California JESSICA TUCKER-MOHL

EDWARD C. DUMONT Deputy Attorneys General

Solicitor General STATE OF CALIFORNIA

DANIEL A. OLIVAS DEPARTMENT OF JUSTICE

Senior Assistant Attorney 1300 I Street

General Sacramento, CA 94244

JOSHUA A. KLEIN (916) 210-7797

CHRISTINA BULL ARNDT Nicole.Rinke@doj.ca.gov

Deputy Solicitors General *Counsel of Record

(Additional Counsel Listed on Signature Page)

QUESTION PRESENTED

Whether the Court should overrule the portion of

Williamson County Regional Planning Commission v.

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

property owners to pursue compensation remedies

that are available in state court before bringing

takings claims in federal court.

2

TABLE OF CONTENTS

Page

TIT since lth aahtenelaieliinitediiatmpbandieinian 1

IIIT sn cieienliatuleapeensabadeguiinanmaninte 3

A EES ane eRe Ae eT 5

I. The Williamson County rule is sound.................... 5

i», ii cicteretntmicienel 5

B. Williamson County properly oo

the special nature of takings claims............... 7

1. State-court proceedings are part

of the State's final regulatory

GS cetiephtenaeentbteseiettennenncadecentcnncnccess 7

2. Without a completed State adjudication,

many federal takings claims are

hypothetical or contingent......................... 14

3. Williamson County is consistent with

other principles of federal jurisdiction......15

C. Williamson County is not unfair

a I drncetcesicnnseescciseccccescscccescsnssose 17

Il. Williamson County serves core state interests .....23

A. Williamson County respects state primacy

in matters of state property law...................... 23

B. State-court litigation ensures that

state-law limits on regulatory action

are enforced, facilitating effective and

fiscally responsible state regulation................ 26

ES TTA LESSEE ERE or ReaP ORCI Te IY 30

TABLE OF AUTHORITIES

CASES

Adam Bros. Farming, Inc. v. Cty. of

Santa Barbara

604 F.3d 1142 (9th Cir. 2010)...................

Allen v. McCurry

SE ee i I ci cccceneveesencseceveesecenveenecenee

Ankenbrandt v. Richards

504 U.S. 689 (1992) .........cceccccecseesecsereeeeeeees

Ashwander v. Tenn. Valley Auth.

Be Cs Se Ge eecnereserecscencececvsccnscesecece

Athanasiou v. Town of Westhampton

30 F. Supp. 3d 84 (D. Mass. 2014).............

Avenida San Juan P’ship v. City of San

Clemente

135 Cal. Rptr. 3d 570 (Ct. App. 2011).......

Burt v. Titlow

Se ee I tirscesicinccccsnsessnennensecsoscivses

Chez Sez III Corp. v. Twp. of Union

945 F.2d 628 (3d Cir. 1991)...............cc00000

City of Monterey v. Del Monte Dunes at

Monterey, Lid.

ey ee I vcicicncnccensesacecvasenincenosevecs

Page

iv

TABLE OF AUTHORITIES

Cohen v. Bd. of Appeals

Re 9

Daddario v. Cape Cod Comm'n

681 N.E.2d 833 (Mass. 1997) ......................cceeeees 10

de St. Aubin v. Flacke

OT 12

Dodd v. Hood River Cty.

136 F.3d 1219 (9th Cir. 1998)....................000..ee 20

Dolan v. City of Tigard

Re ee Se bccescntncctesiissencunecssinicesesseinniiiieneaie 29

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

Rhode Island

642 F.3d 16 (1st. Cir. 2011)...................:.ceeeeeeeeeeeees 8

Fair Assessment in Real Estate Ass'n,

Inc. v. McNary

454 U.S. 100 (1981) .....ccccccccececcscsesescseececerereee 16, 21

Fair Assessment in Real Estate Ass'n,

Inc. v. McNary

478 F.Supp. 1231 (E.D.Mo. 1979)........................ 16

First English Evangelical Lutheran Church of

Glendale v. Cty. of Los Angeles

482 U.S. 304 (1987) .........ceccccecoccecossecessececseeess 11, 21

Fox River Paper Co. v. R.R. Comm’n of Wis.

et NES Sih SSL eee. 24

v

TABLE OF AUTHORITIES

Page

Gregory v. Ashcroft

oe 8

Hensler v. City of Glendale

re 10, 11

Hill v. City of El Paso

437 F.2d 362 (Gth Cir. 1971)..........cccccccccceeeeeeeeeeee 25

Horne v. Dep't of Agric.

a 14

Horne v. Dep't of Agric.

___ U.S. __, 136 S.Ct. 2419 (2015) ..............00000+- 15

Isla Verde Int'l Holdings v. City of Camas

49 P.3d 867 (Wash. 2002) ..............c..00ceeeeeeeeeeeeeeeees )

Lapides v. Bd. of Regents of Univ. Sys. of Ga.

a 22

Lehr v. Robertson

EN 16

Lilly Inv. v. City of Rochester

674 Fed. App’x 523 (6th Cir. 2017)...................... 22

Lingle v. Chevron USA Inc.

Cn 13

Lockaway Storage v. Cty. of Alameda

156 Cal. Rptr. 3d 607 (Ct. App. 2013) ................. 18

vi

TABLE OF AUTHORITIES

Page

Lopes v. City of Peabody

718 N.E. 2d 846 (Mass. 1999) ..............cccccccccceeeees 19

Los Altos £l Granada Investors v. City of Capitola

No. 045138J FPVT, 2005 WL 1774247 (N.D.

I citlinicinitcincinsnnimsindigitieubaniipiabannnss 22

La. Power & Light Co. v. City of Thibodaux

IE 15, 25, 26

Lucas v. S. C. Coastal Council

Tr 13, 25, 26

Lyng v. Nw. Indian Cemetery Protective Ass'n

Ee eR 27

M&-J Coal Co. v. United States

47 F.3d 1148 (Fed. Cir. 1995) ......................ccc000+ 24

Markham v. Allen

REESE or eee me em 16

Meredith v. Talbot Cty.

828 F.2d 228 (4th Cir. 1987) ....................-cccceeeeees 25

Middlesex County Ethics Comm. v.

Garden State Bar Ass'n

EL Ene 17

Monks v. City of Rancho Palos Verdes

84 Cal. Rptr. 3d 75 (Ct. App. 2008) ..................... 19

Morehart v. County of Santa Barbara

ff | EE ee i)

vil

TABLE OF AUTHORITIES

Page

Muskin v. State Dep't of Assessments

30 A.3d 962 (Md. Ct. App. 2011).......................... 19

Nat Park Hosp. Ass'n v. Dep't of Interior

I iciicsdniniicintinccscdaguiinmipsasuindessioneste 14

Noghrey v. Town of Brookhaven

938 N.Y.S. 2d 613 (App. Div. 2012) ..................... 18

Pac. Palisades Bowl Mobile Estates,

LLC v. City of Los Angeles

EO EET 29

Penn Cent. Transp. Co. v. N.Y.C.

a scree niente 13

Pa. Coal Co. v. Mahon

ee ee 24

Petersen v. Riverton City

2:08-cv-554 SA, 2009 WL 564392

eS 22

Phillips Petroleum Co. v. Miss.

i cnreccenierecntimnieniiidniaten 24

Phillips v. Wash. Legal Found.

8 a 24

Port Auth. Trans-Hudson Corp. v. Feeney

| an 20

Premium Standard Farms v. Lincoln Twp.

946 S.W.2d 234 (Mo. 1997) .............ccccccecceceeneeeeees 11

TABLE OF AUTHORITIES

R.R. Comm'n v. Pullman Co.

ee

Reg Rail Reorganization Act Cases

Sy ED cteetstsenccenesescsnscentecsocsseses

River N. Prop., LLC v. City & Cty. of Denver

No. 13-cv-01410-CMA-CBS, 2014 WL

1247813 (D. Colo. Mar. 26, 2014) ................

River Park, Inc. v. City of Highland Park

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

Robinson v. City of Baton Rouge

No. 13-375-JWD-RLB, 2016 WL

6211276 (M.D. La. Oct. 28, 2016)................

Sailors v. Bd. of Ed. of Kent Cty.

Be iy MEE IIIIET ‘deantcscisccsentccncscavesninecosccsse

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

San Francisco

545 U.S. 323 (2005) .............cccceccceeeeeececeeennees

Sansotta v. Town of Nags Head

724 F.3d 533 (4th Cir. 2013) .................00000

Sawyer Envtl. Recovery Facilities v.

Town of Hampden

760 A.2d 257 (Me. 2000) ...............ccccceeeeeeeene

Schlesinger v. Councilman

I eI itienitcicentnnrnisiontnnseneuatenenns

ix

TABLE OF AUTHORITIES

Page

Shaw v. Cty. of Santa Cruz

88 Cal. Rptr. 3d 186 (Ct. App. 2008) ................... 10

Sherman v. Town of Chester

752 F.3d 554 (2d Cir. 2014)...........................0000e0 22

Shively v. Bowlby

A ae Re 24

Sinclair Oil Corp. v. Cty. of Santa Barbara

96 F.3d 401 (9th Cir. 1996)... .ccccccccccccceceees 25

S. Lafourche Levee Dist. v. Jarreau

217 So.3d 298 (La. 2017)....................sscseceeeeeeeeeees 15

Steinbergh v. Rent Control Bd. of Cambridge

546 N.E.2d. 169 (Mass. 1989) ....................ccccc0000 10

Stone v. Powell

EERE Sa He Aa a 18

Stop the Beach Renourishment, Inc. v.

Florida Dep't of Envtl. Prot.

EE ee 26

Sugarman v. Dougall

Ee 8

Suitum v. Tahoe Reg Planning Agency

ESE ne 21

Town of Nags Head v. Toloczko

728 F.3d 301 (4th Cir. 2013)................................ 22

TABLE OF AUTHORITIES

Page

Trimble v. Gordon

I i eseeneabiodisatil 16

Village of Belle Terre v. Boraas

SL 17

Williamson Cty. Reg Planning Comm'n

v. Hamilton Bank

(YC passim

Wisconsin Pub. Intervenor v. Mortier

EEE Tae x

Younger v. Harris

Nee ne 20

Zanke—Jodway v. Capital Consultants, Inc.

No. 306206, 2014 WL 1267262 (Mich. Ct.

pS En 22

CONSTITUTIONAL PROVISIONS

U.S. Constitution

Fifth Amendment........................c.cccceceeeeees passim

Seventh Amendment...................c.cccccccccceceeeeeeenees 28

Eleventh Amendment ...................ccccccccceccceeeceeeees 22

Cal. Const.

SE eer ae ee EY Coe 1

NN iii eriiecnelinne ienattaraceniiiniiininaeinianieal 1

Pe 4 oe 15

TABLE OF AUTHORITIES

Page

a ee eve 1

STATUTES

28 United States Code

EE ee ae ee 27

EE RRO erm RM IR cae aa er. I 17

42 United States Code

a a 8, 16

Cal. Code Civ. Proc.

EE RR AES ee, 29

Cal. Gov't Code

EET tie tte e tae ee 9

ee oe arta es 9

a de 4

ETRE Cae Manne tane tea.” <k 29

EEE Ae Reeser: Lt: 29

EET SAE Gen eee Nea te P 29

§§ 66410-66499.38 00ers i]

Cal. Pub. Res. Code

EEE SPR ae EN Wee Sakic ats i]

GE BOOOO-BOSOO................ccccrccecccescccccccccccceccccccccceces 9

a a 29

a a 10

a 29

Mass. Gen. Laws Chapter 30A §§ 1-25 .0....0...00000c000. 9

N.Y. Em. Dom. Proc. Law

xu

TABLE OF AUTHORITIES

N.Y. Envtl. Conserv. Law

CourRT RULES

Federal Rules of Civil Procedure

REGULATIONS

310 Mass. Code Regs.

| ee

OF SII suvusuntonscsnenccecneseeceoorensesnesenes

OTHER AUTHORITIES

Meltz, Takings Law Today: A Primer for

the Perplexed, 34 Ecology L.Q. 307

GO ctntievsevcencsnsnasassauninesnsssameteotersessnsoveseses

Pomeroy, Penn Central After 35 Years:

A Three Part Balancing Test or A

One Strike Rule?, 22 Fed. Circuit

a Se criccivcceccntndenqrectscncscensccccqrecone

Treanor, The Origins and Original

Significance of the Just

Compensation Clause of the Fifth

Amendment, 94 Yale L.J. 694 (1985)..........

INTERESTS OF AMICI

Amici States are committed to preserving property

owners’ rights under both federal and state law.' At

the same time, in our federal system States and their

local subdivisions have the primary responsibility

both for property law and for adopting reasonable,

locally appropriate regulations for land use, public

safety, environmental protection, and public health.

Where an owner claims that the application of a state

or local regulation affects property in a way that

amounts to an unconstitutional taking, States have a

strong interest in addressing the claim through their

own procedures so that the regulation’s legality can be

determined under state law, any necessary or pre-

ferred accommodation between the regulatory scheme

and the owner’s rights can be made, and any required

compensation can be ascertained and paid. These

steps can be accomplished, and any just compensation

provided, without any federal takings claim ever

developing.

States have longstanding, clearly-established pro-

cedures by which property owners may raise chal-

lenges to state and local regulations in state court,

including claims that the application of a regulation is

functionally equivalent to an appropriation of private

property for public use that requires just com-

* See, eg., Cal. Const. art. I, § 1 (listing, among people's

“inalienable rights,” the right to “acquirje], possess|), and

protect{] property”); id. § 19(a) (requiring just compensation when

private property is taken for public use); Mass. Const. pt.1, art. X

(listing, among people’s “essential and unalienable rights,” the

right to “acquir(e], possess[], and protect|] property”); N.Y. Const.

art. I, $7(a) (“Private property shall not be taken for public use

without just compensation.”).

pensation. State courts also have extensive experi-

ence applying state law procedures and rules for

determining what compensation is just, if a taking is

found. Such proceedings enforce state-law restrictions

on the exercise of state or local power and afford

property owners readily available remedies, including

just compensation. They allow state courts, applying

state laws, to determine issues that are logically prior

to the existence of, and certainly necessary to the

resolution of, any potential later federal takings claim.

This permits the proper development and application

of state law and, by allowing for just compensation via

state remedies, it potentially precludes a federal

constitutional violation from ever occurring.

This Court’s decision in Williamson County Re-

gional Planning Commission v. Hamilton Bank, 473

U.S. 17%, 194-96 (1985), protects these powerful state

interests by ensuring that state processes have an

opportunity to fully address and resolve any potential

takings claim. Overruling the portion of Williamson

County challenged in this case would undercut state

primacy in core areas of property law and state and

local regulation and limit States’ ability to enforce

their own restrictions on state or local regulatory

action. It would force the federal courts to prema-

turely entertain takings claims based on the federal

constitution and effectively act as super boards of

zoning appeals addressing uniquely state law issues.

Indeed, the very existence of a takings claim is

often highly contingent on complex legal and factual

questions arising under state law, remedies under

state law, and, importantly, whether a state or local

regulator would prefer to pay permanent compensa-

tion or alter or rescind a regulation. Williamson Coun-

ty properly recognizes that such questions are much

more appropriately addressed first through state pro-

ceedings. Setting aside this rule from Williamson

County would improperly hinder the States in their

efforts to simultaneously define and enforce property

rights, regulate appropriately for the public health,

safety, and welfare in accordance with local condi-

tions, and protect the public fisc. The amici States

have a strong interest in urging this Court to avoid

that result.

SUMMARY OF ARGUMENT

Williamson County provides that a party asserting

an unconstitutional taking of property must use state

processes for seeking compensation before filing a

federal lawsuit. The Williamson County rule reflects

the character of the protection afforded by the federal

Takings Clause, which makes a taking of private

property for public use a violation of the federal con-

stitution only if it is uncompensated. Unless and until

a claimant has pursued the state compensation pro-

cess, a claimant cannot state a colorable federal Tak-

ings Clause claim in federal court. This rule respects

and upholds the sovereignty of the States by prevent-

ing them or their subdivisions from defending federal

lawsuits when the alleged constitutional violation has

not yet occurred and, depending on the outcome of the

state compensation process, may never occur.

To that end, Williamson County recognizes two

specific preconditions for a claim that a state or local

regulation interferes with property rights in a way

that requires compensation under the federal Takings

Clause. First, the state or locality must have made a

final decision about how it will apply the regulation to

the property at issue, including a determination of the

applicability of any variances. Second, the owner

must have pursued any reasonable, certain, and

adequate state procedure for obtaining compensation

for any alleged taking.

These rules reflect the substantive elements of the

Takings Clause. A violation of that clause requires

both a taking of property and a failure to pay just

compensation. State courts typically have the power

under state law to set aside regulatory actions that

have given rise to takings claims, or to order the

payment of just compensation. Until state courts have

reached final decisions on both matters, there can be

no federal takings claim.

The Williamson County rule requiring that these

issues normally be addressed first through appro-

priate state proceedings does not in any way denigrate

federal constitutional protections or result in their

under-enforcement. Petitioner and certain amici

point to cases in which lower courts have reached

decisions that are arguably procedurally incorrect or

unfair to takings plaintiffs. But any such problems

arise from misapplications of Williamson County, not

from its basic rule. There is no reason to overturn the

rule itself.

Directing these claims to appropriate state court

processes serves core state interests. It appropriately

defers to States and their courts in the first instance

to reach proper accommodations between individual

property rights and core public interests—subject, of

course, to the right of takings plaintiffs to seek review

by this Court. It ensures full enforcement of state-law

limitations that could invalidate or limit a regulation

independent of a Fifth Amendment challenge. And it

allows the State to determine, through administrative

and judicial processes, whether the regulatory

benefits at issue are worth paying for if a state court

determines that the regulatory decision would effect a

taking, or whether the State should modify or rescind

the decision or regulation to limit the expenditure of

scarce tax dollars.

ARGUMENT

I. THE WILLIAMSON COUNTY RULE IS SOUND

Petitioner raises a variety of challenges to Wil-

liamson County's rule that property owners alleging

that a state or local regulation effects a federal taking

must first seek compensation through available state

procedures. That rule, however, is fundamentally

sound. It accurately reflects that, in many States, the

elements of any constitutional takings claim will not

be established until the state courts, which are the

States’ final decision makers on pertinent issues, have

adjudicated the matter and decided whether just

compensation is due. And it appropriately defers to

the leading role of the States in striking the proper

constitutional balance between individual property

rights and state property and land-use rules—all of

which are quintessentially matters of state law.

A. Williamson County

In Williamson County, a landowner sued a county

planning commission in federal court, claiming that

the application of various zoning requirements to its

property amounted to a federal taking. 473 U.S. 172.

This Court held that the suit was not appropriate for

federal determination at that time, for two reasons.

First, the Court reasoned, “a claim that the ap-

plication of government regulations effects a taking of

a property interest is not ripe until the government

entity charged with implementing the regulations has

reached a final decision regarding the application of

the regulations to the property at issue.” 473 U.S. at

186. The owners had not applied to a Board of Zoning

Appeals that could have exempted the project from

certain requirements. Jd. at 188. As a result, there

was not yet any “final decision regarding how [the

owner would] be allowed to develop its property,”

making it impossible to undertake the fact-specific

inquiry whether a federal taking had occurred, such

as the “economic impact of the challenged action and

the extent to which it interfere[d] with reasonable

investment-backed expectations.” Jd. at 190-91.

Second, the federal takings claim was “not yet

ripe” because it was not clear whether the Fifth

Amendment right would in fact be violated, or to what

extent. The owner had not sought compensation

through the state-court “procedures the State ha[d]

provided for doing so.” 473 U.S. at 194. The Fifth

Amendment does not, the Court reiterated, “require

that just compensation be paid in advance of, or

contemporaneously with, [a] taking.” Jd. Instead, “all

that is required is that ‘a reasonable, certain and

adequate provision for obtaining compensation’ exist

at the time of the taking.” Jd. (quoting Reg? Rail Reor-

ganization Act Cases, 419 U.S. 102, 124-25 (1974)).

Just as “taking claims against the Federal Govern-

ment are premature until the property owner has

availed itself of the process provided by the [federal]

Tucker Act,” id. at 195 (citing Ruckelshaus v. Mon-

santo Co., 467 U.S. 986, 1016-20 (1984)), so too “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 been denied compensation,”

id. Because the plaintiff had not availed itself of the

available state-law procedure, its federal suit was

“premature.” Jd. at 197, 200.

B. Williamson Coun Properly Re-

a the Special Nature of Takings

Petitioner portrays Williamson County's require-

ment that a federal takings claimant first resort to

available state compensation procedures as a striking

and unjustified anomaly. See, e.g., Pet. Br. 28 (“No

other type of constitutional plaintiff faces such a stern

barrier to federal court access.”). But no other consti-

tutional provision requires compensation as an ele-

ment of the violation. The Williamson County rule

properly reflects that state-court decision-making is

necessarily antecedent to determining whether and to

what extent there has been any federal constitutional

violation at all and that the questions at issue concern

core state interests.

1. State-court Proceedings Are

Part of the State’s Final Regula-

tory Decisions

Petitioner does not challenge the portion of

Williamson County that requires federal plaintiffs to

obtain, as a prerequisite to bringing suit in federal

court, a “final decision,” through available administra-

tive appeals, on how a state or local authority will

apply laws or regulations in a particular case. 473

U.S. at 190-91. She challenges only the other holding

of Williamson County, requiring federal plaintiffs to

give state courts a chance to consider regulatory

actions that purportedly cause a taking, and to decide

what compensation, if any, will be provided for those

actions as a matter of state law. But under the

processes that some States have instituted, review by

a state court is just as necessary as a final admin-

istrative decision before a court can properly analyze

whether the federal Takings Clause has been violated.

State court review can resolve any potential violations

under state law and, if necessary, determine just

compensation, thereby satisfying federal constitu-

tional requirements.

a. States, through their constitutions, statutes,

and common law, have subjected themselves and their

subordinate entities to a variety of restrictions on the

exercise of regulatory power. The maintenance of

these self-imposed restrictions is fundamental to each

State’s existence as a sovereign, self-governing entity.

See generally Gregory v. Ashcroft, 501 U.S. 452, 460

(1991) (“Through the structure of its government ... a

State defines itself as a sovereign.”); Sugarman v.

Dougall, 413 U.S. 634, 642 (1973) (recognizing each

State’s “interest in establishing its own form of

government’).

Each State decides the degree to which regulatory

authority is delegated to or withheld from the state

entities and local governments that “are created as

convenient agencies for exercising such of the govern-

mental powers of the State as may be entrusted to

them ... in [the State’s] absolute discretion.” Wis-

consin Pub. Intervenor v. Mortier, 501 U.S. 597, 607-

08 (1991) (quoting Sailors v. Bd. of Ed. of Kent Cty.,

387 U.S. 105, 108 (1967)).2 The exercise of state regu-

2 The United States contends that “the effect of the Williamson

County rule is limited to claims against local governments.” U.S.

Br. 4n.2. That is not correct. States are directly affected by Wil-

liamson County when they waive sovereign immunity as to just

compensation claims or, as the United States acknowledges,

42 U.S.C. § 1983. Id.; cf. Downing/Salt Pond Partners, L.P. v.

Rhode Island and Providence Plantations, 642 F.3d 16 (ist. Cir.

2011). And, as this brief explains, Williamson County affects the

latory power is further subject to substantive limi-

tations under state law.* And the exercise of govern-

mental power is conditioned on compliance with

important procedural requirements to ensure that the

people of each State “retain control over the

instruments they have created.”*

Collectively these requirements supersede any

particular administrative body’s decision, because if a

regulation is invalid under state law then it may not

be applied. See, e.g., Morehart v. Cty. of Santa Bar-

bara, 7 Cal. 4th 725, 732 (1994) (county lacked power

to impose certain conditions on issuance of devel-

opment permit); Sawyer Envtl. Recovery Facilities v.

Town of Hampden, 760 A.2d 257, 265-66 (Me. 2000)

(state environmental statute preempts more stringent

local ordinance); Cohen v. Bd. of Appeals, 100 N.Y.2d

395, 399 (2003) (statewide standard of area variance

review controls locality); Isla Verde Int'l Holdings v.

City of Camas, 49 P.3d 867, 878 (Wash. 2002) (city

regulation requiring developer to set aside part of

administration of state law and regulatory processes.

5 See, e.g., California Environmental Quality Act, Cal. Pub. Res.

Code §§ 21000-21189.57; California Subdivision Map Act, Cal.

Gov't Code §§ 664 10-66499.38; California Coastal Act, Cal. Pub.

Res. Code §§ 30000-30900; Massachusetts Wetlands Regulations,

310 Mass. Code Regs. §§ 10.01-10.60; New York Tidal Wetlands

Act, N.Y. Envtl. Conserv. Law §§ 25-0101-—25-0601.

* Cal. Gov't Code § 54950 (legislative declaration regarding law

on open meeting and public processes); see, e.g., id. §§ 11120-

11132 (open meeting law); id. §§ 11340 et seq. (Administrative

Procedure Act); Mass. Gen. Laws ch 30A, §§ 1-25

(Administrative Procedure Act); N.Y. Em. Dom. Proc. Law §§

201-206 (requiring notice and public hearings prior to

condemnation).

10

parcel as open space invalidated under state law).° As

a result, even where an administrative appeal has run

its course, state court processes are integral to

determining whether and how a regulatory action that

could be challenged as a federal taking will in fact go

into effect.

In California, for instance, where a property owner

challenges development restrictions as a taking of

property, the owner’s inverse condemnation action

must be joined with a petition for administrative

mandamus (for as-applied challenges) or complaint for

declaratory relief (for facial challenges). Hensler v.

City of Glendale, 8 Cal. 4th 1, 14 (1994). That allows

the judge to determine whether the “application of the

ordinance or regulation to the property is statutorily

permissible.” Id. Where the regulatory action is un-

authorized under state law, it must be set aside on

those grounds. See, e.g., Shaw v. Cty. of Santa Cruz,

88 Cal. Rptr. 3d 186, 210, 221 (Ct. App. 2008) (noting

trial court decision to set aside a permit denial that

was unauthorized under state law); see also Stein-

bergh v. Rent Control Bd. of Cambridge, 546 N.E.2d.

5 In addition, many state and loca! laws are specifically crafted to

avoid takings liability. See, eg. 310 Mass. Code Regs. §

10.05(10)(a)(3) (authorizing agency to waive the application of

any state wetlands regulation where “it is necessary to avoid an

Order that so restricts the use of property as to constitute an

unconstitutional taking without compensation”); Cal. Pub. Res.

Code § 30010; see also Daddario v. Cape Cod Comm'n, 681 N.E.2d

833, 836 (Mass. 1997) (applying regulation which provided that

“the commission shall approve or approve with conditions a

development of regional impact where an applicant demonstrates

that to disapprove the development of regional impact would

constitute a taking of property in violation of the Massachusetts

and United States Constitutions”).

11

169, 172 (Mass. 1989) (city ordinance exceeded author-

ity granted in state law); Premium Standard Farms v.

Lincoln Twp., 946 S.W.2d 234, 240 (Mo. 1997) (setback

and bonding requirements exceeded township’s statu-

torily granted zoning powers).

In these and similar instances, there can be no

clear basis for a federal takings claim unless and until

it has been resolved as a matter of state law whether

and how a state or local regulation or regulatory

decision will finally apply to particular property.

b. Similarly, some States include state-court

adjudication as part of the decision-making process

that determines whether or not a regulation should

continue to be applied given its effect on objecting

property owners. This Court has recognized that a

government entity held to have committed a

regulatory taking is not obliged to maintain its initial

position and pay for a permanent taking. Rather, “the

government may elect to abandon its intrusion or

discontinue regulations” and pay only for any tem-

porary taking that occurred before that decision. First

English Evangelical Lutheran Church of Glendale v.

Cty. of Los Angeles, 482 U.S. 304, 317 (1987). Where

the governmental body “acquiesce[s]” in this manner,

a landowner “has no right under the Just Com-

pensation Clause to insist that a ‘temporary’ taking be

deemed a permanent taking.” Id.

In some States, state-court adjudication is struc-

tured to provide a clear point in the process where the

public entity may rescind or modify an action and pay

only for any temporary taking. In California, for

example, a multi-step process facilitates the sequen-

tial resolution of state-law issues and liability for any

taking before a jury is convened to decide on a just

amount of compensation. Hensler, 8 Cal. 4th at 14. If

12

a judge rules that a regulatory action effects a taking,

then the government has an opportunity to rescind its

action or choose not to apply it. See, e.g., Avenida San

Juan P’ship v. City of San Clemente, 135 Cal. Rptr. 3d

570, 591 (Ct. App. 2011) (giving city a choice to

invalidate its action or pay permanent-taking compen-

sation). Under New York’s Tidal Wetlands Act, when

a property owner challenges a permit denial, the court

first determines whether the agency decision is sup-

ported by substantial evidence and if so, whether it

constitutes a taking requiring compensation. N.Y.

Envtl. Conserv. Law 4 25-0404. If the landowner pre-

vails, “the Commissioner is directed, at his option, to

either grant the requested permit or institute condem-

nation proceedings.” de St. Aubin v. Flacke, 68 N.Y.2d

66, 70 (1986). State-court adjudication thus serves as

an integral step in determining whether and for how

long a regulation or decision will continue to govern

the plaintiff's use of his or her property.

c. Finally, as Williamson County recognized, a

public entity violates the Fifth Amendment when

private property is both “taken for public use” and the

public entity fails to pay “just compensation.” U.S.

Const., amend. V. The appropriate compensation may

be determined through post-taking proceedings—

particularly where either the existence of a taking or

the amount of compensation due is subject to dispute.

See, e.g., Williamson County, 473 U.S. at 194-95; U.S.

Br. 8-16.6 Channeling takings claims (and particu-

larly regulatory takings claims) to state courts thus

* Arguments that the Takings Clause at its inception required

compensation to be simultaneous with any expropriation (e.g.,

Washington Legal Foundation Br. 11-12) have no force when

applied to regulatory takings, which were not envisioned when

13

allows state processes to resolve in the first instance

whether the state action is lawful, whether compen-

sation is required, and if so, whether to rescind the

regulation and pay only for a temporary taking—and

thus whether or not there is any basis for a federal

takings claim to begin with.

Particularly where regulation, rather than physi-

cal expropriation, is at issue, agencies usually are not

equipped to determine in advance whether a par-

ticular action would constitute a compensable taking

under state and federal rules. See Lingle v. Chevron

USA Inc., 544 U.S. 528, 538, 539 (2005) (most

regulatory takings are governed by the standards in

Penn Central Transportation Co. v. City of New York,

438 U.S. 104 (1978), each of which “has given rise to

vexing subsidiary questions”); cf. U.S. Br. 16 (it would

be “impossible to provide compensation in advance for

all federal actions that might ultimately be found to be

takings”). In any event, the property owner is nor-

mally entitled to judicial review of an agency deter-

mination on that issue. States have therefore en-

trusted their courts with the authority to undertake

the factual and legal inquiries necessary to determine

whether the government is obligated to pay property

owners for any harm allegedly caused by regulatory

the Fifth Amendment was enacted, and which normally are held

to exist only after contested proceedings. See Lucas v. S. C.

Coastal Council, 505 U.S. 1003, 1014 (1992) (“Prior to Justice

Holmes’s exposition in Pennsylvania Coal Co. v Mahon, it was

generally thought that the Takings Clause reached only a ‘direct

appropriation’ of property or the functional equivalent of a

‘practical ouster of [the owner's] possession.” (internal citations

omitted)); see also Treanor, The Origins and Original Signif-

icance of the Just Compensation Clause of the Fifth Amendment,

94 Yale L.J. 694, 708 (1985).

action. The state courts are, in effect, the final deci-

sion makers, providing answers to questions without

which a federal Takings Clause violation does not

occur. And Williamson County properly recognizes

that unless and until those final decision makers

refuse to provide adequate compensation, there has

been no federal “taking.” Williamson County, 473 U.S.

at 196-97.

2. Without a Completed State Adju-

dication, Many Federal Takings

Claims Are Hypothetical or

Contingent

Accordingly, at least in some States, it will not be

“clear that the Government has both taken property

and denied just compensation,” Horne v. Dep't of

Agric., 569 U.S. 513, 525-526 (2013), until state courts

have acted on a particular related set of claims. The

state court’s application of state law may clarify the

scope of the compensable claim, and the state court’s

determination of whether and how long a regulation

will remain in place is vital to determining whether a

violation has occurred and the proper remedy for it.

These concerns explain why Williamson County

properly described a federal lawsuit as “premature”

before such state judicial determinations have been

made. See 473 U.S. at 197, 200. The same principle

underlies both that rule and the portion of Williamson

County that petitioner does not challenge, holding

that the federal case is unripe if there has been no

final decision by “the government entity charged with

implementing the regulations” regarding “the appli-

cation of the regulations to the property at issue.”

Williamson County, 473 U.S. at 186.

A federal takings claim is not “fit for review,” Nat?

Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 812

15

(2003), until the State has come to a “final, definitive

position,” through the processes established under

state law, on how the State and its local governments

will “apply the regulations at issue to the particular

[property] in question,” Williamson County, 473 U.S.

at 191.’ In fact, a state court’s decision to invalidate a

regulation or a decision applying the regulation on

state-law grounds, or to require compensation on

state-law grounds, may completely moot the federal

issue, making it especially unwise to act prematurely.

See generally, e.g., Ashwander v. Tenn. Valley Auth.,

297 U.S. 288, 345 (1936) (Brandeis, J., concurring); cf.

La. Power & Light Co. v. City of Thibodaux, 360 U.S.

25, 32-33 (1959) (Brennan, J., dissenting) (“Numerous

decisions ... have sanctioned abstention from deciding

cases involving a federal constitutional issue where a

state court determination of state law might moot the

issue or put the case in a different posture.”).

3. Williamson County Is Consistent

with Other Principles of Federal

Jurisdiction

Petitioner contends that Williamson County's rule

should be discarded because it “den[ies] a federal

forum to property owners claiming a ‘taking’ of

’ Indeed, the question of “just compensation” is inherently tied to

state law, and some States have takings clauses with both

stricter public purpose requirements and more generous

compensation. Whereas just compensation under the Fifth

Amendment is generally measured by fair market value, see

Horne v. Dep't of Agric., U.S. __, 185 S.Ct. 2419, 2432 (2015),

Louisiana, for example, compensates owners for the “full extent

of the loss.” La. Const. Art. 1, §4(B)(5). This standard includes

other damages caused by the expropriation, such as

inconvenience, relocation expenses, and business losses. See

S. Lafourche Levee Dist. v. Jarreau, 217 So.3d 298, 306 (La.

2017).

16

property,” Pet. Br. 27. She argues that requiring

initial state proceedings is inconsistent with her right

to “a federal forum for federal civil rights claims under

... 42 U.S.C. § 1983.” Pet. Br. 27. But certain types of

claims involving federal constitutional rights have

long been predominantly adjudicated in state courts.

Cases involving domestic relations, parental

rights, and probate law, for example, frequently

implicate fundamental federal rights. See, e.g., Lehr

uv. Robertson, 463 U.S. 248 (1983) (equal protection and

due process challenges in paternity proceedings);

Trimble v. Gordon, 430 U.S. 762 (1977) (equal

protection challenge to inheritance rule). Yet they are

litigated almost exclusively in state court. See, e.g.,

Ankenbrandt v. Richards, 504 U.S. 689, 694-695

(1992) (domestic relations cases); Markham v. Allen,

326 U.S. 490, 494 (1946) (probate).

Challenges to the enforcement of state tax laws

may also involve claimed constitutional violations.

See, e.g., Fair Assessment in Real Estate Ass'n, Inc. v.

McNary, 454 U.S. 100, 107 (1981). This Court has

reasoned, however, that the “ready access to federal

courts” that is generally provided under 42 U.S.C.

§ 1983 does not give taxpayers an automatic right to

have their constitutional claims adjudicated by federal

courts in the first instance. /d. at 116. Instead, as

Fair Assessment holds, state “taxpayers must seek

protection of their federal rights by state remedies,

provided of course that those remedies are plain,

adequate, and complete.” Jd. Without such a rule, the

Court reasoned, federal courts would be turned into “a

source of appellate review of all state property tax

classifications.” Jd. at 114 (quoting Fair Assessment

in Real Estate Ass'n, Inc. v. McNary, 478 F.Supp. 1231,

1234 (E.D.Mo. 1979)).

17

Similar concerns are present here. Federal courts

should not be a routine forum for challenging zoning

and land-use decisions. See Village of Belle Terre v.

Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting)

(“Our role is not and should not be to sit as a zoning

board of appeals.”). This makes sense, because com-

plex questions about the application of state and local

law to particular facts are inextricably intertwined

with takings claims, and “[m]inimal respect for the

state processes ... precludes any presumption that the

state courts will not safeguard federal constitutional

rights.” Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 431 (1982) (emphasis

omitted).

Nor is there anything about the Takings Clause in

particular that makes immediate access to an Article

III court indispensable. This Court’s decision in Wil-

liamson County to channel most takings claims in-

volving state or local governments to the state courts

is consistent with the way the federal system treats

similar claims against the federal government. Most

plaintiffs who wish to pursue such claims must sue

first in the Court of Federal Claims. See 28 U.S.C.

§ 1491(a)(1); Williamson County, 473 U.S. at 195.

Only after that court decides whether and how much

compensation will be paid may the claimant proceed

to an Article III court, by appeal to the Federal Circuit.

The Court of Federal Claims is not an Article III court,

and its proceedings in Washington D.C. may be far

less convenient for claimants than local state court

proceedings under Williamson County.

C. Williamson County Is Not Unfair to

Property Owners

Petitioner likewise argues that “[t]he central issue

in this case is whether American property owners ...

18

are entitled to a realistic and fair opportunity to seek

compensation for a ‘taking’ of property within the

meaning of the Fifth Amendment.” Pet. Br. 1. But

neither Williamson County itself, nor the preclusive

effects that can result from state-court adjudication,

deprive property owners of a fair adjudication of their

federal rights.

1. Many arguments against Williamson County

seem ultimately premised on a general “distrust of the

capacity of the state courts to render correct decisions

on constitutional issues.” Allen v. McCurry, 449 U.S.

90, 104 (1980); see, e.g., San Remo Hotel Br. 3-4, 9-10,

16-17. But state courts have a constitutional obliga-

tion to enforce federal law, and this Court’s precedents

reflect a “confidence in their ability to do so.” Allen,

449 U.S. at 104. Indeed, this is a “foundational prin-

ciple of our federal system.” Burt v. Titlow, 571 U.S.

12, 19 (2013). Here, as in other contexts, the Court

should be “unwilling to assume that there now exists

a general lack of appropriate sensitivity to constitu-

tional rights in the trial and appellate courts of the

several States.” Stone v. Powell, 428 U.S. 465, 493

n.35 (1976).

In practice, state courts have carefully protected

property owners’ rights. That is evident from the

many appellate decisions (not to mention trial court

decisions) holding that a taking has occurred and

ordering compensation.

* See, e.g., Lockaway Storage v. Cty. of Alameda, 156 Cal. Rptr.

3d 607 (Ct. App. 2013) (authorizing the challenged development

to proceed and awarding temporary takings damages of

$990,000); Noghrey v. Town of Brookhaven, 938 N.Y.S. 2d 613

(App. Div. 2012) ($840,000 damages award where rezoning led to

decline in property value); Avenida San Juan P’ship, 135 Cal.

19

Of course, property owners also often lose regu-

latory takings claims in state court. But that outcome

properly reflects a combination of the state and local

efforts to regulate in ways that do not effect a taking

of property and the substantive standard that applies

to such claims under federal law. In federal court, too,

plaintiffs “rarely prevail in a Penn Central claim.”

Pomeroy, Penn Central After 35 Years: A Three Part

Balancing Test or A One Strike Rule?, 22 Fed. Circuit

B.J. 677, 699 (2013); see also Meltz, Takings Law

Today: A Primer for the Perplexed, 34 Ecology L.Q.

307, 333 (2007) (“The Penn Central test has rarely

been invoked successfully in the Supreme Court,

except where a special feature of the challenged

regulation, such as physical invasion, total taking, or

interference with a fundamental property interest,

triggered categorical analysis.”). The problem is not

that plaintiffs are victims of state-court discrim-

ination; it is that regulatory takings claims are dif-

ficult to establish in any forum.

2. Nor is there any anomaly or unfairness in the

possibility that issues decided in state-court adju-

dicavion regarding takings claims may have preclusive

effect in later federal proceedings. See Pet. Br. 24-26.

Rptr. 3d 570 (ordering compliance with writ invalidating spot

zoning or payment of $1.3 million in takings damages); see also

Muskin v. State Dep't of Assessments, 30 A.3d 962 (Md. Ct. App.

2011) (holding statute transferring unregistered ground leases

was a taking and invalidating statute); Monks v. City of Rancho

Palos Verdes, 84 Cal. Rptr. 3d 75 (Ct. App. 2008) (holding city’s

moratorium on development was a taking and remanding for

determination of just compensation); Lopes v. City of Peabody,

718 N.E. 2d 846 (Mass. 1999) (holding that property owner

entitled to reimbursement of real estate taxes based on

uncontested trial court finding of partial regulatory taking).

20

Issue preclusion is not automatic in takings cases.

It applies under the same terms as other applications

of the Full Faith and Credit Clause. If a state court

decision does not meet the requirements that have

been developed under that clause to protect litigants’

rights, issue preclusion does not apply. See e.g., Dodd

v. Hood River Cty., 136 F.3d 1219, 1227-28 (9th Cir.

1998) (no preclusion where Oregon’s substantive test

for evaluating regulatory takings differed from the

test under federal law).

In any event, there is nothing improper about

applying issue preclusion to state-court decisions af-

fecting constitutional issues. A plaintiff who wishes to

press Fourth and Fifth Amendment claims relating to

an arrest, search, or prosecution is generally barred

from doing so in federal court while a state criminal

case involving the same facts is imminent or pending.

See Younger v. Harris, 401 U.S. 37 (1971). State-court

decisions in such cases receive full preclusive effect in

any later federal civil case, and may bar the later fed-

eral claim entirely. See Allen, 449 U.S. 90 (state trial

court’s decision that search was proper under Fourth

Amendment precluded raising same claim under

Section 1983). Similarly, a State may decide to waive

its sovereign immunity to suit in state court but not

federal court. See Port Auth. Trans-Hudson Corp. v.

Feeney, 495 U.S. 299, 305 (1990). Where that hap-

pens, an adverse decision on particular issues in state

court would have preclusive effect in any later federal

suit against other defendants. Preclusive effects are a

consequence of having had a full and fair opportunity

to litigate one’s claims in any forum. They are not a

special disadvantage imposed by state courts or by the

Williamson County framework.

21

3. Finally, petitioner argues that Williamson

County must be overruled because property owners

might find themselves in the unfair position of being

unable to proceed in either state or federal court— if,

for example, a state case were removed to federal court

and then dismissed under Williamson County. See

Pet. 30-33. But any such problem would arise only

from a misapplication of Williamson County. Peti-

tioner points to no necessary unfairness that would

justify overruling the decision’s basic rule.

The Williamson County rule applies only where the

state-court proceeding would provide a “reasonable,

certain, and adequate judicial remedy.” 473 U.S. at

194; see Suitum v. Tahoe Regi Planning Agency, 520

U.S. 725, 733-34 (1997). Some state procedures may

not meet this test. See, e.g., First English, 482 U.S. at

321 (state process for addressing regulatory takings

inadequate where it provided no compensation for

temporary regulatory takings). Where that is the

case, a plaintiff need not resort to those procedures

before proceeding to federal court. See, e.g., City of

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

U.S. 687, 699 (1999) (noting decision allowing federal!

plaintiff to bypass procedures deemed inadequate in

First English); cf. Fair Assessment, 454 U.S. at 116 n.8

(requirement that taxpayer claims be brought in state

court if there is a “plain, adequate, and complete”

remedy requires pursuing state-court remedies only if

substantive federal rights “will not be thereby lost”).

Federal courts have correctly recognized that a

case should also remain in federal court under

Williamson County if a state procedure which would

otherwise be adequate is being applied unfairly or

inefficiently in the particular case. See, e.g., Town of

Nags Head v. Toloczko, 728 F.3d 391, 399 (4th Cir.

22

2013); Adam Bros. Farming, Inc. v. County of Santa

Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010).°

The amici States do not endorse any application of

Williamson County under which a governmental

defendant could first remove a case to federal court

and then seek dism’ssal solely under Williamson

County. See Pet. Br. 31; cf. Lapides v. Bd. of Regents

of Univ. Sys. of Ga., 535 U.S. 613 (2002) (state waives

Eleventh Amendment immunity by voluntarily re-

moving a case to federal court). As _ petitioner

acknowledges (Br. 32), courts have frequently

determined that a case which the defendant has thus

removed may proceed in federal court without further

state proceedings. See, e.g., Sherman v. Town of

Chester, 752 F.3d 554, 564 (2d Cir. 2014); Sansotta v.

Town of Nags Head, 724 F.3d 533, 545-547 (4th Cir.

2013); Lilly Inv. v. City of Rochester, 674 Fed. App’x

523, 530 (6th Cir. 2017). If there are decisions

allowing procedural maneuvering that has the

® See also, e.g., Robinson v. City of Baton Rouge, No. 13-375-JWD-

RLB, 2016 WL 6211276, at *31, as amended, 2016 WL 6460220

(M.D. La. Oct. 28, 2016) (manipulation waived Williamson

County’s state court litigation requirement); Los Altos El

Granada Investors v. City of Capitola, No. 045138JFPVT, 2005

WL 1774247, at *7 (N.D. Cal. July 26, 2005) (declining to apply

Williamson County where state court “had been given fair

warning that the plaintiff was asserting a takings claim and a

fair opportunity to provide just compensation,” bui declined to

hear the claim).

© See also, e.g., River N. Prop., LLC v. City & County of Denver,

No. 13-ev-01410-CMA-CBS, 2014 WL 1247813, at *7 (D. Colo.

Mar. 26, 2014); Athanasiou v. Town of Westhampton, 30 F. Supp.

3d 84, 89 (D. Mass. 2014); Zanke-Jodway v. Capital Consultants,

Inc., No. 306206, 2014 WL 1267262, at *6 (Mich. Ct. App. Mar.

27, 2014); Petersen v. Riverton City, No. 2:08-CV-664 SA, 2009

WL 564392, at *2 (D. Utah Mar. 5, 2009)

23

practical effect of depriving litigants of any forum,

that problem should be dealt with by disapproving

those decisions, not by a wholesale abandonment of

the legal and prudential considerations on which

Williamson County is firmly based. These or similar

questions are matters of how to apply Williamson

County in a way that is sensible and fair. They reveal

no problem with the basic rule itself.

Il. WILLIAMSON COUNTY SERVES CORE STATE

INTERESTS

Petitioner nonetheless asks this Court to overrule

Williamson County and permit all takings plaintiffs to

proceed immediately to federal courts, regardless of

the situation in which their claim arises or the degree

to which it is dependent on state-law questions that

have not yet been fairly presented to and adjudicated

by the state courts. The Court should reject that

request. In addition to all the normal reasons for

respecting stare decisis, this case implicates im-

portant state interests that are well served by

Williamson County's rule. Directing takings claims to

state courts that provide a reasonable, certain, and

adequate means for seeking relief in the first instance

serves sovereign interests in respecting the primacy of

state processes in core areas of state law and policy

and in promoting effective and balanced regulation.

A. Williamson County Respects State

Primacy in Matters of State

Property Law

Williamson County brings takings cases, in the

first instance, to the courts that are best able to

answer underlying questions of state property law,

and that are best situated to resolve often complex and

highly local conflicts where individual rights and the

needs of the community may be in tension.

24

The existence and nature of an underlying

property right is the first question that courts must

decide to resolve a takings claim. See M&J Coal Co.

v. United States, 47 F.3d 1148, 1154 (Fed. Cir. 1995)

(courts first “inquire into the nature of the land

owner’s estate to determine whether the use interest

proscribed by the governmental action was part of the

owner's title to begin with”). Although the Fifth

Amendment right against an uncompensated taking

is a matter of federal law, the underlying property

interests are typically defined by state law. See

Phillips v. Wash. Legal Found., 524 U.S. 156, 161

(1998). The governing rules are often complex or

unique to the individual state. See, e.g., Phillips

Petroleum Co. v. Miss., 484 U.S. 469 (1988)

(Mississippi public trust law); Fox River Paper Co. v.

R.R. Comm'n of Wis., 274 U.S. 651, 655 (1927)

(riparian rights in navigable waters and the soil); Pa.

Coal Co. v. Mahon, 260 U.S. 393, 414 (1922)

(Pennsylvania law on subterranean coal). Here, for

instance, the petitioner's takings claim depends in

part on longstanding and highly specialized state

common law pertaining to cemeteries. See Cemetery

Law Scholars Br. 23-26.

Williamson County ensures that such issues are

addressed in the first instance by state courts with

relevant experience and knowledge, subject to review

by state appellate courts that (unlike their federal

counterparts) have the ultimate power to “define and

interpret state law.” Schlesinger v. Councilman, 420

U.S. 738, 755 (1975). This both spares the federal

courts from having to grapple in the first instance with

often complex or technical state-law issues and results

in more consistent and reliable decisions. See Shively

v. Bowlby, 152 U.S. 1, 26 (1894) (“[g}reat caution ... is

necessary in applying [property right] precedents in

25

one state to cases arising in another”). While the

appellate determination of an open state-law issue in

state court is typically definitive, determination of the

same issue in federal court might be only a “dubious

and tentative forecast” of how the state courts would

resolve the issue. La. Power & Light, 360 U.S. at 29.''

Williamson County also respects that, as this Court

and other federal courts have acknowledged, state

courts have a particular advantage in resolving other

“complex ... legal questions related to zoning and land-

use regulations.” San Remo Hotel, L.P. v. City and

County of San Francisco, 545 U.S. 323, 347 (2005).'”

Land use planning is “an area of particularly local

concern,” Chez Sez Ill Corp. v. Twp. of Union, 945 F.2d

628, 633 (3d Cir. 1991), involving “important matters

of state and local policy,” Meredith v. Talbot Cty, 828

F.2d 228, 232 (4th Cir. 1987). In determining whether

a taking has occurred, “courts must consider all rea-

sonable expectations whatever their source.” Lucas,

505 U.S. at 1035 (Kennedy, J., concurring). State

courts are better positioned than federal courts to

'! The Takings Clause does not require that state property law be

“static,” and does not prevent States from “enacting new reg-

ulatory initiatives in response to changing conditions.” Lucas,

505 U.S. at 1035 (Kennedy, J., concurring).

'2 See, e.g., River Park, Inc. v. City of Highland Park, 23 F.3d 164,

165 (7th Cir. 1994) (“Federal courts are not boards of zoning

appeals.”); Sinclair Oil Corp. v. Cty. of Santa Barbara, 96 F.3d

401, 409 (9th Cir. 1996) (“[lJand use planning is a sensitive area

of social policy” and interpreting land use regulations turns on

“the peculiar facts of each case in light of the many [applicable}

local and state-wide land use laws” (internal quotation marks

omitted)); Hill v. City of El Paso, 437 F.2d 352, 357 (5th Cir. 197 1)

(describing local zoning ordinances as “grass roots procedures”

that “are outside the general supervisory power of federal

courts”).

26

identify and assess “unique concerns,” id., for

example, relating to particular land systems or areas,

which might significantly affect the federal takings

analysis of a particular regulation. In this area of the

law, as in certain others, it is both efficient and proper

for state courts to address such questions in the first

instance. See La. Power & Light, 360 U.S. at 28 (fed-

eral court properly abstained from deciding challenge

to eminent domain proceeding, in part because state

courts are better situated to rule on issues that “turn

on legislation with much local variation interpreted in

local settings”).

Of course, state decisions on ultimate questions of

federal takings law are always subject to review by

this Court. See, e.g., Stop the Beach Renourishment,

Inc. v. Florida Dep't of Envtl. Prot., 560 U.S. 702

(2010). Indeed, the Court has previously recognized

that “most of the cases in [its] takings jurisprudence,

including nearly all of the cases [involving regulatory

takings], came to [the Court] on writs of certiorari

from state courts of last resort.” San Remo Hotel, 545

U.S. at 347. That tradition reflects state courts’ pri-

macy in most matters of state property law and land-

use regulation, and this Court’s ability to respect that

state role while providing authoritative guidance for

the protection of federal constitutional rights.

B. State-court Litigation Ensures that

State-law on tory

Action Are Enforced, F tating

Effective and Fiscally Responsible

State Regulation

Finally, Williamson County protects each State's

ability to prevent regulatory overreaching by its own

agents or subdivisions, thereby facilitating state

efforts to ensure effective, efficient, and fiscally

responsible regulation.

27

First, Williamson County serves a core state

interest in establishing state mechanisms for re-

viewing the activities of subordinate governmental

entities to ensure their compliance with state law.

State courts typically have the authority to invalidate

improper regulations and the decisions that apply

them on a variety of state-law grounds, rather than

holding that a particular action amounts to a taking

and requiring compensation. See supra, pp. 7-9.

Williamson County ensures that States will have the

practical ability to enforce such state-law limits on

regulatory action. Proper state proceedings may make

it unnecessary ever to reach federal takings issues,

thus allowing the courts to avoid reaching the consti-

tutional issue at all. See Lyng v. Nw. Indian Cemetery

Protective Ass'n, 485 U.S. 439, 445 (1988) (a “long-

standing principle of judicial restraint requires that

courts avoid reaching constitutional questions in

advance of the necessity of deciding them”). At a

minimum, those state proceedings substantially clar-

ify the actual contours of a federal takings claim. In-

deed, as discussed above (see supra, p. 10), some States

ensure that unnecessary federal constitutional adjudi-

cation will be avoided by requiring those seeking

compensation to join available state-law claims that

could invalidate or require modification of a

regulatory action.

In contrast, plaintiffs in federal court would not

necessarily be required to join meritorious state-law

claims to a Fifth Amendment takings claim. And even

where a violation of state law is pleaded and would

provide a basis to invalidate or modify a regulatory

action, federal judges could choose to decide federal

constitutional claims first or to decline jurisdiction

over the state-law claims entirely. See 28 U.S.C.

§ 1367(c); cf. R.R. Comm'n v. Pullman Co., 312 U.S.

28

496, 499 (1941) (“as outsiders without special com-

petence in Texas law,” federal courts would leave

issues regarding the state railroad commission's

authority to the Texas courts).

Second, Williamson County supports fiscally

responsible government. State procedures can be

designed to allow state or local regulators clear

opportunities to alter regulatory policies or actions if

a state court concludes that they would otherwise

require compensation under state law. See supra, pp.

11-12. Such procedures, which are most effectively

managed within the boundaries of a State’s own legal

system, can help regulators appropriately balance the

true costs and benefits of a regulation. Federal

adjudication is not similarly structured to allow

specifically for a state or local entity to rescind or

modify an action between a finding of liability and an

assessment of just compensation. To allow the govern-

mental entity an opportunity to implement its right to

rescind or alter an action if it is determined to effect a

taking, the federal court might need to insert a

lengthy pause between the liability and compensation

phases of a single federal jury trial."* There is no

reason to embark on the project of working out such

potential complexities with respect to federal

proceedings when state courts already provide an

appropriate forum for managing these claims.

Finally, Williamson County allows States to

consider state administrative law as well as takings

challenges in a comprehensive and timely manner,

\8 See generally City of Monterey, 526 U.S. 687 (Seventh Amend-

ment requires jury trial on liability and compensation for inverse

condemnation claims in federal court).

29

providing the certainty that facilitates effective reg-

ulation and allows development to proceed. Land-use

regulations consist of interrelated parts that interact

with each other in complex ways.'* They are designed

to operate as an integrated whole. See, e.g., Dolan v.

City of Tigard, 512 U.S. 374, 377 (1994) (discussing

Oregon’s “comprehensive land use management

program,” including “regulations which are part of an

integrated hierarchy of legally binding goals, plans,

and regulations”). Where one aspect of such a regime

is invalidated, or requires payment for a permanent

taking, changes to other aspects may be in order.

Efficiently coordinated resolution of such challenges is

therefore necessary for effective regulation—and

should also serve regulated parties, whose planning

and financing benefits from as much certainty as can

be provided. See Nat'l Assn. of Home Builders Br. 1

(noting dependence on “clear regulatory and legal

processes”).

Some States have reacted to this reality by

designing systems to adjudicate challenges to such

programs as quickly as possible. See, e.g., Cal. Code

Civ. Proc. § 65009 (requiring prompt presentation of

suits seeking to void a legislative body’s adoption of

land-use plan or zoning ordinance); Cal. Gov't Code

§ 66020(d)(2) (action to void conditions placed on

development project “shall take precedence over all

other matters of the calendar of the court except

'* See, e.g., Cal. Gov't Code §§ 65590, 65590.1 (Mello Act require-

ment that demolition of low- and moderate-income housing be

offset elsewhere in the same city or county); Cal. Pub. Res. Code

§§ 30001.5, 30500-30526 (Coastal Act requirements for land use

plans and implementing ordinances); Pac. Palisades Bowl Mobile

Estates, LLC v. City of Los Angeles, 55 Cal. 4th 783, 798 (2012)

(applying Mello Act and Coastal Act together).

criminal, probate, eminent domain, forcible entry, and

unlawful detainer proceedings”). Federal courts,

which are removed from the day-to-day workings of

state government, have different priorities, naturally

designed to serve federal goals. See Fed. R. Civ. P. 40

(“The court must give priority to actions entitled to

priority by a federal statute.”). Channeling takings

cases that arise from state regulation to state courts

allows States to resolve such challenges as part of a

comprehensive system for managing important issues

of regulation, development, and private property

rights that could not be more integral to the complex

business of state and local governance.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

DANIEL A. OLIVAS

Senior Assistant Attorney General

JOSHUA A. KLEIN

CHRISTINA BULL ARNDT

Deputy Solicitors General

NICOLE U. RINKE

JESSICA TUCKER-MOHL

Deputy Attorneys General

August 6, 2018

(Counsel listing continues on next page)

rney

District of Columbia

Curtis T. HILL, JR.

Attorney General

Indiana

TOM MILLER

Attorney General

lowa

JEFF LANDRY

Attorney General

pase

JANET T. MILLS

Attorney General

Maine

BRIAN E. FROSH

Attorney General

Maryland

MAURA HEALEY

Attorney General

Massachusetts

LORI SWANSON

Attorney General

Minnesota

31

GURBIR S. GREWAL

Attorney General

New Jersey

HECTOR BALDERAS

Attorney General

New Mexico

BARBARA D. UNDERWOOD

Attorney General

New York

ELLEN F. ROSENBLUM

Attorney General

THOMAS J. DONOVAN, JR.

Attorney General

Vermont

ROBERT W. FERGUSON

Attorney General

Washington