Petition for Writ of Certiorari — Santini v. Connecticut Hazardous Waste Management Service

Qupreme ee

FILED

/ ‘

QB 12 JUL 27

QPFIGE OF THE CLENK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

EVANDRO S. SANTINI, et al,

Petitioners,

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Trmortuy S. HOLLISTER

(Counsel of Record)

SHIPMAN & GOODWIN LLP

One Constitution Plaza

Hartford, Connecticut

06103-1919

(860) 251-5000

Attorney for Petitioners,

July 27, 2004 Evandro Santini, et al.

Washington, 0.C. ¢ THIEL PRESS ¢ (202) 328 3286

(:)

QUESTIONS PRESENTED

1. Did the Second Circuit err in interpreting Agins v.

Tiburon, 447 U.S. 255 (1980), and First English Evan-

gelical Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304 (1987), as holding that “‘pre-

condemnation activity”’ is categorically exempt from lia-

bility under the Takings Clause of the Fifth Amend-

ment?

2. Did the Second Circuit contravene several decisions

of this Court by holding that an agency’s proposed con-

demnation of an under-construction subdivision for pub-

lic use as a radioactive waste disposal facility, which

action continued for eleven months and undisputedly

reduced the property’s value from approximately $2

million to zero for at least 24 months and undermined

a $5 million equity investment, was not a taking on the

grounds that it was incomplete “regulatory” action of

“short duration,” and protecting the condemnation

process from liability was “‘sound public policy?”

(12)

PARTIES TO THE PROCEEDING

The parties to this case are:

Plaintiffs/Petioners: Evandro S. Santini

Alfred Drive

Tolland, Connecticut 06084

Santini Homes, Inc.

1031 Hartford Turnpike

Vernon, Connecticut 06066-

4407

Defendant/Respondent: Connecticut Hazardous Waste

Management Service

60 Columbus Boulevard

Fourth Floor

Hartford, Connecticut 06106

RULE 29.6 STATEMENT

Santini Homes, Inc. is a closely-held corporation, and

has no parent or subsidiary corporations.

(itt)

Page

TABLE OF CONTENTS

II I ik nd bdo uo ya cu Nbcuvceeca ck: i

Parties To The Proceeding, Rule 29.6

NE Bee Aad a bw 5.0 6 (Abo vw li

Table Of Authorities....................0005.., iv

I ae 6 loys oxy vac dss vkw inn ockar l

PE SAGAN Sw ane ha dA ddan wee a acenecccccs ]

Constitutional Provision ..............00000---... ]

scoconspnmsnapasees CUNO CR TET CT CCT 2

Statement Of The Case.......................... 6

Reasons For Granting The Writ:

I.

II.

III.

Whether ‘‘Precondemnation Activity” Should

Be Analyzed Under The Penn Central Takings

Factors Or Constitutes A Categorical Exception

To The Fifth Amendment Takings Clause Is

An Important Question On Which Decisions

Of This Court Conflict ..................... 17

The Second Circuit’s Interpretation Of The

Third Factor Of Penn Central, ‘‘Character Of

The Governmental Action,” Conflicts With

Several Decisions Of This Court, Particularly

EE a 22

This Case Will Allow The Court To Clarify

The Penn Central Factors Without Collateral

Procedural Issues Or Weighing Property Rights

Against Environmental Concerns.............. 29

ee 30

——— =

(tv)

Page

APPENDICES:

Appendix A — Opinion of the U.S. Court of

Appeals for the Second Circuit (August 28,

2003), published at 342 F.3d 118.............. la

Appendix B — Opinion of the U.S. District Court

for the District of Connecticut (August 27,

rs eeeverrr Tee TTT ee err eT Te TT Te Te Tee 28a

Appendix C — Second Circuit order denying Peti-

tion for Panel Rehearing (April 2, 2004)........ 42a

Appendix D — Excerpt, trial court testimony on

cross-examination by Santini’s counsel of Susan

Shimelman, Undersecretary of the Connecticut

Office of Policy and Management, February 27,

iL. Peererrrrereerrr tT Peer e rT eT ee Tee 44a

Appendix E — Excerpt, trial court testimony on

cross-examination by Santini’s counsel of Ronald

Gingerich, Executive Director, Connecticut Haz-

ardous Waste Management Service, February 25,

i ate tener ners ene ayy MEAP Bienen ty 45a

Appendix F — Excerpt, trial court testimony on

cross-examination by Santini’s counsel of Dr.

William Kinnard, expert real estate appraiser

called by Connecticut Hazardous Waste Man-

agement Service, March 5, 1998 .............. 47a

TABLE OF AUTHORITIES

Federal Cases:

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

Armstrong v. U.S.,.364 U.S. 40 (1960)..... 5, 17, 22, 28

Bose Corp. v. Consumers Union, 466 U.S. 485

(v)

Federal Cases, continued: Page

Eastern Enterprises v. Apfel, 524 U.S. 498

Lo eee rere rer oe tieeeeh abe a can 26

England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411 (1964).............06. 14

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, 482 U.S. 304

ee ee ee re re erm uy Cn passim

Hurd v. American Hoist & Derrick Co., 734 F.2d

| nee 27

In re Wolverton Assoc., 909 F.2d 1286, 1296 :

Fee Re Se k9 0 dee nds can decease eel 27

Keystone Bituminous Coal Ass’n v. DeBenedictis,

5 i teal ee Bik dh hin i) SEER ET TEE EE Or ee 27

Lucas v. South Carolina Coastal Council, 505

ee a ere ee 15, 19, 23, 27

Martin v. Citibank, N.A., 762 F.2d 212 (2d Cir.

Bo PORE TTR ee eee ee eee ee or re 27

Mulls v. Rogers, 457 U.S. 291 (1982)............... 5

Moore v. Chesapeake & Ohio Ry., 340 U.S. 573.

tt Se re er ee re ee 27

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

| ne ere eer Sere eT ee 3, a7

Park Avenue Tower Assoc. v. City of New York,

146 F.26 155 (26 Cir. TOG). occ ces cscnewsues 16

Penn Central Transportation Co. v. New York

Coty, 436 U.S. 104 (1978)... cass ccc cvceas passim

Pennsylvania Coal Company v. Mahon, 260 U.S.

| Pe yer erry Te eer ee 27

(vt)

Federal Cases, continued: Page

Prune Yard Shopping Center v. Robins, 447 U.S.

MIMO icksssckesnit eee 5

Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency, 34 F.Supp.2d

1226 (D. Nev. 1999), rev'd, 216 F.3d

764 (9th Cir. 2000), aff'd, 535 U.S.

POR COORD 0 is5 6 keke s 06a e eee eres passim

U.S. v. 10,031.98 Acres, 850 F.2d 634 (10th

Cie, RPGR) asus seb cwea ue seaeeeeeenenes eee 11

Williamson County Regional Planning Commis-

ston v. Hamilton Bank, 473 U.S. 172

(RDGB we sc nisinevecce ac euaeen 9, 12, 13, 24, 29

State Cases:

Melillo v. New Haven, 732 A.2d 133 (Conn.

| ree wer reer errr e wr ere: CP 13

Santini, et al. v. Connecticut Hazardous Waste

Management Service, 739 A.2d 680 (Conn.

eerie re es pe 12

Santini, et al. v. Connecticut Hazardous Waste

Management Service, 1998 WL 422166

(Conn. Super. 1996)... os cccccwasesesssesuncn 11

Federal Constitutional Provision and Statutes:

U.S. Constitution, Amendment V... .............- l

28 U.S.C. SIZSET) vc cen ncccwduseecunaceasueeus l

42 U.S.C. GLOGS... cccnncctuneweeeee een aee eee 13

42 U.S.C. 8020016 06 eK 6 55 pee 7

Pub. L. No. 96-573, 94 Stat. 3347 (1980)........... 7

(vit)

State Constitutional Provision and Statutes: ve

Connecticut Constitution, Article First, §11 ......... 9

Conn. Gen. Stat. §22a-134bb(a) (1999) .......... 7

Conn. Gen. Stat. § §22a-163c et seg. (1999) ........ 7

Sees Ge: CU, BOO 0:6 i en heen eee eaaw es 7

1992 Conn. Acts 92-45

l

PETITION FOR A WRIT OF CERTIORARI

Evandro S. Santini of Tolland, Connecticut and San-

tini Homes, Inc. of Vernon, Connecticut respectfully

petition this Court for a writ of certiorari to review the

judgment of the U.S. Court of Appeals for the Second

Circuit in this case.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the

Second Circuit is published at 342 F.3d 118 (2003) and

reprinted in the Appendix (‘‘App.’’) beginning at la. The

opinion of the U.S. District Court is unpublished but

appears in the Appendix beginning at 28a.

The opinions issued in the state court proceedings that

preceded this action are published at 1998 WL 422166

(Conn. Super. 1998) and 739 A.2d 680 (Conn. 1999).

JURISDICTION

The opinion of the U.S. Court of Appeals for the

Second Circuit was published August 28, 2003. Plain-

tiffs’ Petition for Panel Rehearing was denied on Apnil

2, 2004, App. at 42a. On June 18, 2004, this Court

extended the time for filing this petition to July 30,

2004. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254/1).

CONSTITUTIONAL PROVISION

The Takings Clause of the Fifth Amendment to the

U.S. Constitution provides: ‘‘[N] or shall private property

be taken for public use without just compensation.”

2

INTRODUCTION

This case warrants a writ of certiorari for two reasons.

First, a federal appeals court, denying a claim brought

under the Fifth Amendment for a taking of land without

just compensation, interpreted two decisions of this

Court as stating a broad, categorical, but undefined

exemption from takings liability for ‘‘precondemnation

activity,’ and in doing so directly contradicted two other

decisions of this Court which hold that takings claims are

to be adjudicated using a three-factor balancing test, not

categorical rules. Second, the opinion below reveals a

pervasive misunderstanding of this Court’s most impor-

tant and recent takings jurisprudence, including (1)

the meaning of and relationship between the three tak-

ings factors; (2) the difference between a taking claim

arising from use of condemnation for a public purpose

and from police-power regulation of private. land use;

(3) the importance of focusing on the impact of govern-

ment action on the property owner and not whether the

action is intentional or complete; and (4) the difference

between government action that is temporary from the

outset and action that causes a taking which becomes

temporary because government later rescinds or aban-

dons.

In Penn Central Transportation Co. v. New York

City, 438 U.S. 104, 124 (1978), this Court established

a three-factor analysis for a taking of property without

just compensation under the Fifth Amendment: (1) econ-

omic impact of the governmental action on the property

owner; (2) interference with the owner’s distinct, invest-

ment-backed expectations; and (3) character of the

governmental action. In its most recent takings decisions,

this Court has identified Penn Central as the primary

3

framework for adjudication of taking claims, describing

it in Palazzolo v. Rhode Island, 533 U.S. 606, 633

(2001), as the “‘polestar,”” and declining in Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302 (2002), to adopt categorical rules

in lieu of a case-by-case, three factor analysis. With Penn

Central so anointed, the meaning and balancing of the

factors have become the most important substantive

issues under the Fifth Amendment Takings Clause.

In June 1991, the petitioners were finishing the con-

struction of the first phase of a 100 lot residential sub-

division in Ellington, Connecticut. They had obtained

several years earlier all necessary permits, and as of

mid-1991 had spent $5 million on construction, thus

vesting (under Connecticut law) the rights granted by

those permits. However, on June 10, 1991, a quasi-state

agency, after secret deliberations, announced that it had

selected the Santini subdivision as one of three finalists

(the other two sites being nearby) for condemnation for

public use as a disposal facility for radioactive waste gen-

erated by in-state hospitals, utilities, universities, and

corporations. In late June, the Santini subdivision was

featured on the front page of the Hartford Courant next

to the international symbol for radioactivity.

The announcement spawned a huge public outcry

that resulted, eleven months later, in the Connecticut

legislature repealing its mandate to the agency to con-

demn an in-state facility. By this time, however, the

damage had been done to Santini and his property: it is

undisputed in this case that, notwithstanding its revo-

cation eleven months later, the designation per se for

condemnation destroyed all economically productive

use of Santini’s $2 million property and undermined

petitioners’ $5 million equity investment for at least

4

24 months, from June 1991 through June 1993. That

is, the stipulated record of this case contains the concur-

ring opinion of the defendant agency’s expert real estate

appraiser who testified that, as a result of the agency’s

June 1991 action, the petitioners were unable to gen-

erate any revenue for two years from their completed

houses, finished lots, or remaining acreage.

Santini sued in state court for compensation for a

temporary taking and lost. In 2001, he commenced this

action in federal district court, which dismissed the claim

under the Rooker-Feldman doctrine, res judicata, and

collateral estoppel. In August 2003, the Second Circuit

reversed the jurisdictional dismissal and reached the

merits of Santini’s Fifth Amendment taking claim (the

first court to do so), and rejected the claim for two

reasons: First, the court interpreted Agins v. Tiburon,

447 U.S. 255 (1980), and First English Evangelical

Lutheran Church of Glendale v. Los Angeles County,

487 U.S. 302 (1987), as stating a categorical exception

from takings liability for “precondemnation activity” —

a term which it did not define. The court then addressed

Santini’s taking claim under Penn Central. It held that

the character of the agency action was dispositive; it

concluded that ‘“‘whatever the economic impact,” Santini

had no taking claim because the agency did not complete

the acquisition, the agency’s mandate was revoked after

eleven months, and the agency’s action constituted “‘reg-

ulatory” action, t.e., the use of the police power to

restrain private land use for the public’s benefit. The

court also stated that protecting the condemnation pro-

cess from takings liability was ‘“‘sound public policy.”

In interpreting Agins and First English as stating a

broad yet undefined categorical defense to takings lia-

bility, the Second Circuit highlighted a direct conflict

5

among decisions of this Court. In denying Santini’s tak-

ing claim, the Second Circuit:

¢ distorted the Penn Central test by giving disposi-

tive effect to the third factor while ignoring eco-

nomic impact and investment-backed expecta-

tions;

* contradicted Tahoe-Sierra’s express explanation

that when the governmental action is condemna-

tion for public use as opposed to restraint of pri-

vate use through regulation, the third Penn Cen-

tral factor weighs heavily in the property owner’s

favor;

¢ violated Penn Central by focusing on the duration

and completeness of the condemnation process

instead of the impacts on the property owner;

and

e ignored the plain applicability of Armstrong uv.

U.S., 364 U.S. 40 (1960), which holds that a pni-

mary purpose of the federal Takings Clause is to

ensure that no individual is forced to bear a sub-

stantial economic burden on behalf of the public.

In short, the Second Circuit misunderstood the Penn

Central analysis and this Court’s critical distinctions and

recent explanations about its applicability and balancing

process. These core issues are of national concern

because they underlie not only claims brought under the

Fifth Amendment but also every taking claim raised

under state law, because the federal Takings Clause

furnishes a minimum, national standard for the adjudi-

cation of takings claims. See Mills v. Rogers, 457 U.S.

291 (1982); PruneYard Shopping Center v. Robins, 447

6

U.S. 74 (1980). In an area of the law in which judges

and commentators have appealed for years for clarity,

the Second Circuit’s opinion is an unfortunate step

backward that warrants review.

STATEMENT OF THE CASE

1. Designation of the Santini Subdivision for Con-

- demnation as a Radioactive Waste Disposal Facility, .

199]-93. Evandro S. Santini has built single-family

homes and apartments for almost 40 years in the eastern

suburbs of Hartford, Connecticut. He founded Santini

Homes, Inc. (“SHI’’), the construction arm of his busi-

ness, in 1970, and has been its president and treasurer

ever since,

From 1984 through 1991, Santini and SHI (herein-

after ‘‘Santini”) developed the first phase of a residential

subdivision on 74 acres in Ellington, Connecticut, 20

miles northeast of Hartford. This effort began when

Santini purchased 20 acres in 1984 for $147,500. In

January 1985, he obtained all necessary permits for a

16 lot subdivision on this parcel, called ‘‘Ellridge Es-

tates.” Sanini then installed the subdivision’s infra-

structure at a cost of more than $500,000. In March

1988, Santini purchased an adjoining 54 acre parcel for

$1,075,000. With this second parcel, he had in place

the land for his overall plan to construct larger homes

on the 16 lots and develop the remaining 54 acres with

smaller lots and more modest homes. Neither parcel

contains wetlands, watercourses, or other environmental

resources that might restrict development.

Santini began construction of model homes in Ell-

ridge Estates in 1987. The work proceeded slowly

because Santini was completing another development

7

and the real estate recession of 1987-91 had taken hold

in New England. Santini, therefore, assembled financing,

equipment, and personnel, completed model homies,

undertook preliminary engineering on the 54 acre parcel,

and awaited an uptur in the market. By 1991, Santini

had invested $5 million of his own money and had

borrowed $4.7 million specifically for the Ellington

project. In mid-1991, the uptum in the market com-

menced. By early June, Santini had identified buyers

for two homes.

The Connecticut Hazardous Waste Management Ser-

vice {“‘Service”’ or ‘‘agency”’) is ‘a public instrumentality

and political subdivision’? of the State, but not a state

agency. See Conn. Gen. Stat. §22a-134bb(a) (1999).

The Service’s principal duty is to oversee the handling

and disposal of radioactive materials, including the

identification, acquisition, and construction of an

in-state disposal facility. Jd. § §22a-163c et seg. (1999).

“Low-level” waste remains radioactive for approx-

imately 500 years after its use and is extremely hazard-

ous to human health. The term “low-level’’ only serves

to distinguish the waste from material such as spent fuel

rods from nuclear power plants.

Connecticut’s mandate to the Service to acquire an

in-state disposal site was the direct result of a federal

requiement to develop new state or regional disposal

facilities. See Pub. L. No. 96-573, 94 Stat. 3347 (1980),

codified at 42 U.S.C. § §2021b et seg. This mandate was

accompanied by the threatened imposition of severe

financial penalties on any state that did not meet certain

deadlines. Connecticut adopted facility development

legislation principally in 1987, Public Act 87-540. The

Service then commenced its site selection process. It is

undisputed that the Service’s site selection process was

8

conducted in secret, in order to shield it from influences

other than geologic and environmental data. Santini,

therefore, had no notice that during 1989-91, his prop-

erty was being secretly targeted for public use.

On June 10, 1991, the Service announced that it

had designated the land on which Santini was building

as one of three finalist sites for the disposal facility.

The other two sites were in close proximity. On June

30, 1991, a map of the Ellridge Estates development

appeared on the front page of The Hartford Courant

next to the international symbol for radioactivity. In

late 1991, one of the other two sites was eliminated

from consideration.

Two undisputed aspects of the agency’s June 1991

action warrant emphasis. First, the announcement was

not the beginning of the condemnation but nearly the

end; the agency was under a legislative mandate to take

title to a disposal site. See testimony of Susan Shimel-

man, Undersecretary of Connecticut Office of Policy and

Management, App. at 44a. Second, notwithstanding this

mandate, the agency had several federal and state permits

to obtain before it would complete the acquisition. At

the time of the condemnation announcement and in the

months following, the agency had no idea how long that

process might take, see testimony of Ronald Gingerich,

Executive Director, App. at 45a. Thus, acquisition

for public use was mandatory, but the timetable was

unknown.

Residents and public officials in Ellington and sur-

rounding towns reacted angrily to the June 1991 an-

nouncement. In response, Governor Weicker proposed

in early 1992 a revocation of the statutory requirement

9

that the Service condemn a disposal site, in favor of hav-

ing a municipality volunteer a site. The legislature

eventually adapted the revocation, and the Governor

signed it on May 5, 1992, Public Act 92-45.

2. Santini’s State Court Action, 1994-2000. Santini

brought a temporary taking claim in 1994. Because this

Court held in Williamson County that a Fifth Amend-

ment takings claim is not ripe until a property owner

has sought and been denied just compensation in the

state system, Santini sued in state court and sought just

compensation under the takings clause of the Connec-

ticut Constitution, Article First, § 11.

Santini has pursued this case through more than ten

years of litigation because of one undisputed fact that

emerged from the trial in the state court: the real estate

appraisers retained by each party to evaluate the econ-

omic impact of the condemnation designation on the

Santini property agreed that for 24 months following

the agency’s June 10, 1991 action, Santini could not

generate any revenue from his land or development.

Santini’s appraisal witness concluded that the prop-

erty’s value on June 10, 1991 was $2.6 million, but after

the designation this value “effectively vanished,” and

this continued for at least 24 months. The appraiser

retained by the Service concurred, stating in his report

(emphasis added):

The June 10, 1991 designation of the Santini prop-

erties in Ellington as being part of, or immediately

adjacent to, a potential site for a low-level radio-

active waste disposal facility in Connecticut lasted

for 11 months, until May 1992. During that period

of time, no sales of any portion of Ellridge Estates

(vacant lots within the designated site areas of the

facility, or vacant houses, immediately abutting the

10

designated site area) could reasonably be expected

to have occurred. Moreover, no development

activity on the [54 acre] Pinney Street property

could reasonably have been expected to occur....

[We] recognize that the announcement by CHWMS

effectively halted any reasonable marketing or

development efforts on the part of Santint, as long

as the designation as a potential site for the low-level

radioactive waste disposal facility was in effect....

[W]e have concluded that the most likely start-up

date for effective marketing and sales in the three

segments of the Santini properties-in Ellington

would be June 1993.

Thus, since the 1998 state court trial, plaintiffs’ taking

claim has been based upon the extraordinary and judi-

cially binding (see n.12, infra) concurrence of the par-

ties’ expert witnesses that the Service’s June 10, 1991

condemnation designation, although formally in place

for ‘‘only” eleven months, effectively destroyed the

property’s value for no less than 24 months.

At the state trial, the appraisers also calculated just

compensation that would be due if a taking had occurred.

Each compared revenue from the subdivision had it

continued uninterrupted from June 1991 through June

1993 with the lack of revenue from property as econo-

mically idled for 24 months. Both utilized the same

discount rate; they differed only on the projected prices

of the completed homes and finished lots and how

quickly they would have sold absent the agency’s actions.

Each expressed his final calculation as a ‘“‘before and

after’? value: the plaintiffs’ appraiser, Edward Heberger,

stated the property’s value as of June 1991 as $2.6

million; zero for the next 24 months; and after June

1993, as a result of the 24 months of forced inactivity,

1]

$1.9 million, resulting in just compensation of more

than $700,000. The Service’s appraiser, Dr. William

Kinnard, testified that uninterrupted sales would have

been slower in 1991-92 due to market conditions. He

concluded that the June 1991 value was $1.7 million;

Santini could generate no revenue for the next 24

months; and the “after” value was $1.5 million, just

compensation being $215,000. These calculations, how-

ever, did not measure diminution in value; in fact, these

were damage calculations premised on the mutual con-

clusion that the property lost all of its value from June

1991 to June 1993.

The Connecticut Superior Court, in 1998, held that

Santini could not claim a taking as a matter of law

because the June 1991 designation was merely part

of the State’s planning process, and a taking cannot -

occur unless ‘the State’s intent to condemn the prop-

erty in question has become fixed and irreversible,”

which it found had not happened. The trial court also

stated in dictum that the property had retained ‘‘some

value” during the condemnation. !

! Although it did not explain this remark, the state trial court

apparently was referring to three parts of the trial record, First, in

August 1992 (three months after the revocation), at the urging of

his construction lender, Santini attempted — unsuccessfully — to

rejuvenate his moribund development by essentially giving away

one of the constructed homes. The sale agreement stated a “‘pur-

chase price” of $550,000, but Santini took back three mortgages

totaling $495,000, and as seller paid $50,000 to the buyer at the

closing. Neither appraiser regarded this transaction as arms-length

or evidence of market value. Second, in March 1992 Santini

received an oral offer to purchase one home at a significant dis-

count, but the offer was never accepted. Such an offer is not evi-

dence of market value, see, e.g., U.S. v. 10,031.98 Acres, 850 F.2d

634, 637 (10th Cir. 1988). Third, in December 1991, while con-

sidering a forecloser on its load to Santini, a construction lender

[footnote continued]

12

The Connecticut Supreme Court (in a 5-2 en banc

decision) affirmed the denial, on different grounds.

739 A.2d 680 (1999). It held that ‘‘mere governmental

planning and temporary steps in anticipation of con-

demnation” do not, as a matter of state law, constitute

a taking. /d. at 681, 687. Because the Service’s action

“did not go beyond such planning,” it was ‘“‘not neces-

sary to discuss the plaintiffs’ factual claims [of economic

impact] ....”2 Jd. at 688 n.19. The court declined to

regard this Court’s takings jurisprudence as a minimum

standard for interpreting the Connecticut Constitution,

calling this Court’s decisions “irrelevant.” Jd. at 688

n.20. The opinion then stated that First English vali-

dated the majority’s holding that mere government

planning is never a taking, because it recognized a cate-

gorical exclusion from takings liability for “deprecia-

tion in the value of property by reason of preliminary

[government] activity...’’ Id. at 690.

In March 2000, Santini petitioned this Court for a writ

of certiorari, presenting two questions: (1) whether a

state court, adjudicating a taking claim brought in state

court under state law as required by Williamson County,

must regard this Court’s decisions interpreting the fed-

eral Takings Clause as minimum standards; and (2)

whether the Connecticut Supreme Court, by dismissing

this Court’s decisions as “‘irrelevant” and by adjudicating

procured an appraisal of one of the model homes; the document

listed a value of $400,000, but this was contingent on repeal of

the Service’s condemnation designation. Thus, none of this evi-

dence remotely demonstrated economic use during or after the

condemnation designation or after its revocation.

2 Thus, the Connecticut Supreme Court effectively vacated

the trial court’s discussion of whether the property had retained

value during or after the condemnation.

13

Santini’s takings claim without even reaching economic

impact, had violated the federal Takings Clause. That

petition was denied, 530 U.S. 1225 (2000).

3. Santini’s Federal Court Action. Santini then brought

this taking claim in federal district court under the Fifth

Amendment and 42 U.S.C. §1983. The parties stipu-

lated to use of the testimony (including the respective,

concurring appraisers’ testimony) and exhibits from the

state court action as the record for the federal action

for the purpose of determining liability for a taking.

The Service then filed a motion to dismiss on the grounds

of lack of finality under Williamson County, the Rooker-

Feldman doctrine, res judicata, and collateral estoppel

resulting from the state court proceedings. The Service

also sought summary judgment on the merits. Santini,

in turn, filed a motion for summary judgment on the

merits. On August 27, 2002, the court granted the Ser-

vice’s motions, accepting its jurisdictional arguments,

and denied Santini’s motion, App. at 28a.

4. Santini’s Appeal to the Second Circuit. On appeal

to the Second Circuit, the parties’ briefs primarily addres-

sed the district court’s jurisdictional dismissal, with San-

tini arguing that the dismissal should be reversed and

the matter remanded for a decision on the merits. The

Second Circuit reversed the district court on the juris-

dictional issues, accepting Santini’s argument that he had

proceeded in state court involuntarily and was prohib-

ited in that forum under both Williamson County and

Connecticut case law® from litigating a Fifth Amend-

ment taking claim.* App. at 10a-22a.

3 See Melillo v. New Haven, 732 A.2d 133, 154 n.28 (Conn.

1999); App. at 15a.

4 Thus, the court agreed that Rooker-Feldman and res

judicata did not bar federal jurisdiction. The Second Circuit also

[footnote continued]

14

Notwithstanding that the district court had not reached

the merits, the Second Circuit decided the taking claim,

denying it on two grounds. First, the court interpreted

Agins and First English as ‘explicitly [holding] that pre-

condemnation activities do not constitute takings.”

App. at 23a. The Second Circuit quoted from Agins,

447 US. at 263 n.9:

Even if the appellants’ ability to sell their property

was limited during the pendency of the condemna-

tion proceeding, the appellants were free to sell or

develop their property when the proceedings ended.

Mere fluctuations in value during the process of

governmental decision-making, absent extraordinary

delay, are incidents of ownership.

App. at 23a. It then adverted to the statement in First

English, 482 U.S. at 320, that “depreciation in value of

property by reason of preliminary activity is not charge-

able to the government.”” App. at 23a. Because the

agency’s June 1991 condemnation announcement was

“but one step of many that the state? had to pursue

before it could condemn® Santini’s property,” its action

announced a rule, to be applied prospectively, for takings plain-

tiffs proceeding involuntarily in state court, directing them to

file in the state action an express reservation of the Fifth Amend-

ment claim, The court cited England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411 (1964), as the procedural basis

for this requirement, which it dubbed a “Santini reservation.”

In imposing this rule, the Second Circuit expressly disagreed with

the Third, Fourth, Sixth, Ninth and Tenth Circuits. App. at 15a-

22a.

5 As noted earlier, the defendant Hazardous Waste Manage-

ment Service, by statute, is a quasi-public entity and not a state

agency.

6 Ry this word, of course, the court meant to “take title’”’;

there is no dispute that the agency in June 1991 was initiating the

use of statutorily-delegated eminent domain powers.

15

was “prototypical precondemnation governmental activ-

ity,” and thus as a matter of law not a taking. /d. at

23a-24a.

The Second Circuit then turned to the Penn Central

test.’ Id. at 24a. It found that Santini could not show

a loss of all economically viable use because of this

Court’s holding in Tahoe-Sierra, 535 U.S. at 332, that

‘‘{a] fee simple estate cannot be rendered valueless by a

temporary prohibition on economic use, because the

property will recover value as soon as the prohibition is

lifted."® App. at 24a, 25a. Despite explanations in

the appeal briefs intended to avoid any misunderstand-

ing, the court also mistook the appraisers’ calculations

of just compensation as measures of decline in the fair

market value of the property, attributing to Dr. Kinnard,

for example, testimony that the condemnation had

reduced the property’s market value by $215,000. Jd.

at 8a. On the apparent basis of these findings, the court

found that the Service’s action had only had an econ-

omic impact on Santini and interfered with the petition-

ers’ investment-backed expectations “to some extent.’”?

Id. at 25a.

7In its decision, the Second Circuit also addressed Santini’s

taking claim under the categorical rule of Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992) (governmental action that

results in a total loss of economically beneficial use constitutes a

taking regardless of government's justification, unless the owner’s

proposed use is a nuisance or barred by underlying real property

law principles). App. at 24a. The petitioners concede that Tahoe-

Sierra, 535 U.S. at 329, restricts the Lucas categorical rule to per-

manent takings, and is thus now inapplicable to this temporary

taking case.

Sin finding that the property was not rendered valueless,

the court made no mention of the concurring expert testimony

of the real estate appraisers.

9 The court also referred to the Connecticut trial court’s

inexplicable and plainly erroneous dictum that “None of the

[footnote continued]

16

The court then set aside the first two Penn Central

factors, holding that the third prong, the character of the

governmental action, was “of principal importance and

fatal to the taking claim,” in four ways: (1) like the mor-

atorium in TJahoe-Sierra, the restriction on property use

here was temporary; (2) because the condemnation pro-

cess had been terminated by the legislature eleven months

after the June 1991 designation, overruling of the agency

was “relatively swift,’’ and “duration of the restric-

tion is one of the most important factors that a court

must consider in the appraisal of a regulatory taking

claim, Tahoe-Sterra, 535 U.S. at 342”; (3) because the

agency’s condemnation action was “‘regulatory,’’ this

case is governed by the ‘“‘legion of cases” that have

upheld land use regulations and permit denials against

takings claims, even where property value diminished

substantially, citing Park Avenue Tower Assoc. v. City

of New York, 746 F.2d 135, 139 (2d Cir. 1984); and

(4) protecting the condemnation process from tak-

ings liability constitutes ‘“‘sound public policy” by allow-

ing agencies to plan for public uses without encour-

aging secrecy. App. at 25a-27a. Underscoring that

it be considered the character of the agency’s action

to be dispositive, the court concluded, ‘|Whatever]

the economic impact of the siting announcement upon

Santini’s property, no compensable taking occurred.”

Id. at 26a,

experts said plaintiffs’ land had no economic or productive

use. ...” App. at 24a, Further, in direct contravention of San-

tini’s claim, the appraisers’ concurrence, and the court’s own

earlier statement (‘‘Notwithstanding [the revocation], Santini’s

property remained economically idle until mid-1993, td. at 7a),

the court asserted that Santini had acknowledged that the prop-

erty “recovered some of its value after the siting announcement

was withdrawn.”

neneeenemenieememmmmemnammatac

17

5. Santini Petition for Panel Rehearing. Santini filed

a petition for rehearing on the grounds that the opinion:

(1) inexplicably ignored the concurrence of the parties’

appraisers about total loss of economic use; (2) mistook

the appraisers’ calculations of just compensation as the

measure of decline in property value; (3) erroneously

applied Tahoe-Sierra, a moratorium case, to a condem-

nation; (4) ignored Tahoe-Sierra’s express distinction

between the analysis applicable to condemnation of

private property for government’s own purposes, and

regulatory action — such as the Lake Tahoe morator-

ium — taken to prevent environmental harm or adjust the

“benefits and burdens of economic life’; and (5) in vio-

lation of Armstrong v. U.S., ignored the fact that San-

tini is a single individual forced to sustain a substantial

economic loss in order to allow the defendant agency,

on behalf of the public, to freeze the Santini property

while deciding whether to take title. On April 2, 2004,

the Second Circuit denied the rehearing petition, App.

at 42a. This Court extended the time for filing this

petition to July 30, 2004.

REASONS FOR GRANTING THE WRIT

I.

WHETHER “*PRECONDEMNATION ACTIVITY” SHOULD

BE ANALYZED UNDER THE PENN CENTRAL TAKINGS

FACTORS OR CONSTITUTES A CATEGORICAL EXCEP-

TION TO THE FIFTH AMENDMENT TAKINGS CLAUSE

IS AN IMPORTANT QUESTION ON WHICH DECISIONS

OF THIS COURT CONFLICT.

The Second Circuit held that as a matter of law, “pre-

condemnation activity” is never a taking, citing Agins

and First English. It reasoned that because Agins (1980)

was decided after Penn Central (1978), it must be con-

18

sistent with its takings analysis. App. at 25a. The court

noted the reference in Tahoe-Sierra to the Agins discus-

sion of a proposed condemnation, td. at 27a.

If the Second Circuit’s reading of Agins and First Eng-

lish is correct, there are at least two necessary conse-

quences for takings law. First, when adjudicating a tak-

ing claim, a court’s first inquiry is whether the govern-

ment’s activity is part of an incomplete condemnation

process; if so, the court need not inquire into the three

Penn Central factors. In other words, if the activity falls

into the ‘‘pre-condemnation” category, it is exempt

from takings liability even if it has resulted in a complete

or substantial loss of economic use and has destroyed or

substantially interfered with investment-backed expec-

tations. Equally important, the decision compels a rule

that government may avoid liability for a taking by

repealing, rescinding, or abandoning a condemnation

and thus rendering its efforts “‘pre’’-condemnation.

It must be conceded that Agins states that a proposed

condemnation was not a taking because the process was

eventually abandoned. Similarly, First English contains

the broad statement that “preliminary activity is not

chargeable to the government.” Also, the Second Cir-

cuit’s interpretation of Agzns is bolstered by the fact that

Tahoe-Sterra, 535 U.S. at 335-37, during its discussion

of why a moratorium (being temporary) cannot result in

a total loss of economic use, cites the same Agzns sen-

tence about condemnation that is cited in the Second

Circuit’s opinion.

But if the Second Circuit’s opinion directs a path for

takings analysis, that path eventually runs headlong into

a wall fortified by Penn Central, First English, and

Tahoe-Sierra. Penn Central and Tahoe-Sterra clearly

direct that, with the narrow exception of facts fitting

19

Lucas (a permanent taking and a total destruction of

economic use), taking claims are not to be analyzed using

categorical rules invoking one factor, but through a bal-

ancing of the three factors. Tahoe-Sierra rejected the

petitioners’ proposed categorical rule that all moratoria

that deny economic use are takings because such a rule

would forgo an inquiry into interference with expecta-

tions and the character of the governmental action,

535 U.S. at 320. And First English unmistakably holds

that if government activity has already caused a taking,

an agency may not thereafter avoid liability by rescind-

ing its action.

Thus, the conflict and confusion: if Agins and First

English hold that the initiation or early stages of con-

demnation — or perhaps any step short of the vesting of

title in the condemnor — are exempt from takings lia-

bility, then what is to be made of the Tahoe-Sierra

holding that any government action — whether prelim-

inary, partial, or complete — must be analyzed using the

three Penn Central factors? Moreover, how does one

reconcile this categorical rule with the discussion in

Tahoe-Sterra that the character of the governmental

action factor weighs heavily toward the property owner

when government uses condemnation powers to estab-

lish — or explore establishing — a public use? And if

governments exercising condemnation powers are exempt

from takings liability so long as they change course

before completing the process — which could leave a

property owner in limbo for years — what is the status of

the First English principle that recission cannot avoid

liability if a taking has already occurred?

Accompanying this conflict about a categorical exemp-

tion from takings liability is the issue of its scope: What

is “precondemnation activity”? The Second Circuit’s

20

decision neither defines the term nor cites any case that

does. The petitioners have been unable to locate one.

Does the term refer to the announcement of intent to

condemn? To a period of physical testing (such as

environmental) that often precedes a decision to acquire

title? To an agency’s announcement that it has made a

“final’? decision to proceed? To its procurement of

funds for the condemnation?

The importance of this issue nationally should be evi-

dent. Condemnation of private property for public use

is a core power of local, regional, state, and even the fed-

eral government, and is frequently employed. If there is

a categorical exception to takings liability for steps

occurring ‘‘prior’” to condemnation, its existence and

scope are vital information for both governments and

property owners.

The answer to this confusion may be that the Second

Circuit’s decision is erroneous in citing Agins as stating a

rule of decision that precondemnation activity is never a

taking. In Agins, the subject property was undeveloped

and no residential development plan had been filed with

the City of Tiburon; thus, no permits had been granted

and no rights had vested. The plaintiff's taking claim was

a facial challenge to a rezoning ordinance. There is no

reference in the decision to any evidence about the econ-

omic impact of the proposed condemnation or its pur-

pose; the decision only states that the condemnation was

undertaken “in good faith.”” Agins, 447 U.S. at 263 n.9.

Thus, the Agins statement that the condemnation pro-

ceedings did not cause a taking may well have been the

result of the plaintiff's lack of a constitutionally-pro-

21

tected property interest!® and meager investment-backed

expectations.

The Second Circuit’s treatment of First English as

holding that “preliminary activity” is always exempt

from liability is even more suspect: in Tahoe-Sierra, this

Court disavowed that First English was a holding with

respect to governmental liability for a temporary taking,

explaining that it decided only the availability of dam-

ages: “[In First English], we did not address . . . the

quite different and logically prior question whether the

temporary regulation at issue had in fact constituted a

taking.”” Tahoe-Sierra, 535 U.S. at 328. Moreover, even

if First English is regarded as a holding on this issue,

that decision’s reference to “preliminary government

activity” does not describe preliminary steps taken by a

condemnor, but government’s deliberations about

whether to issue permits to a private land owner for a

proposed private use. Indeed, when Tahoe-Sierra referred

to First English as addressing ‘“‘ordinary permit delays,”

td. at 338 n.31 (emphasis added), it was not conceivably

discussing exempting a condemnor from liability on the

ground that the agency had yet to obtain permits for its

intended public use.

Thus, in this case, a federal appeals court has inter-

preted two decisions of this Court in a manner that con-

flicts with other decisions of this Court. Review is war-

ranted to resolve this confusion about a core issue of tak-

ings law.

10By comparison, in this case, there is no question that San-

tini had a vested right under Connecticut law in his subdivision

approval. It had been issued six years earlier, and he had spent

$5 million in reliance on it, including the construction of roads,

infrastructure, and houses.

22

Il.

THE SECOND CIRCUIT’S INTERPRETATION OF THE

THIRD FACTOR OF PENN CENTRAL, “CHARACTER

OF THE GOVERNMENTAL ACTION,” CONFLICTS WITH

SEVERAL DECISIONS OF THIS COURT, PARTICU-

LARLY TAHOE-SIERRA.

The Second Circuit’s decision does not merely misap-

ply properly-understood takings decisions of this Court

to the facts of this case, but evinces fundamental mis-

understandings regarding the Penn Central analysis, the

nature of a temporary taking, and the difference between

a regulatory taking claim and one arising from condemna-

tion. The opinion conflicts with Penn Central, First Eng-

lish, Tahoe-Sterra, and Armstrong.

As discussed earlier, the Second Circuit, in the alterna-

tive, reviewed Santini’s taking claim against the Penn

Central factors. The Court’s Penn Central analysis may

be summarized in this manner: (1) there was no total

loss of economic use because the condemnation was

eventually repealed; (2) the economic impact was, at

most, a modest fluctuation in value that was limited to

the eleven months of formal condemnation; and (3)

the government’s actions were either categorically

exempt as precondemnation activities, permissible regu-

latory restraint of private land use, or justified as a con-

sequence of government’s need to plan.

A review of Tahoe-Sterra will help illuminate the

magnitude of the Second Circuit’s departures from

this Court’s takings jurisprudence. At issue in Tahoe-

Sterra was a 32 month moratorium-imposed by a regional

planning agency to regulate land use, and thus protect

water quality, at Lake Tahoe. In 1981, the agency

banned all new development on the most sensitive

23

nearby lands for two years until it could devise a com-

prehensive regulatory plan. It later extended the

original moratorium, such that the suspension lasted a

total of 32 months. A group of lot owners sued for a

taking in federal court. The District Court held that

during the 32 months that the owners had been deprived

of all use, they had suffered a categorical taking under

the Lucas case. See Tahoe-Sierra Preservation Council,

Inc. v, Tahoe Regional Planning Agency, 34 F.Supp.2d

1226 (D. Nev. 1999). The Ninth Circuit reversed, hold-

ing that because the planning agency’s action was by

definition temporary, it could not have wiped out “all”

economic use of the plaintiffs’ properties, but at most

suspended that use in order to facilitate an important

government planning purpose, see Tahoe-Sierra Preserva-

tron Council, Inc. v. Tahoe Regional Planning Agency,

216 F.3d 764 (9th Cir. 2000). During the appeals, the

plaintiffs conceded that given the compelling environ-

mental basis of the moratorium, they could not maintain

a taking claim under the Penn Central balancing test.

Thus, the case came before this Court as a facial chal-

lenge, a claim that the imposition of the 32 month mora-

torium on new construction on vacant lots had so com-

pletely deprived each property owner of economically

viable use so as to create a categorical taking under

Lucas.

In its April 2002 opinion, this Court rejected the peti-

tioners’ proposed categorical rule that any regulation that

causes a temporary denial of all economic use constitutes

a taking under Lucas. Tahoe-Sierra, 535 U.S. at 321.

It declined this holding, in part, because such a rule

would result in ‘no need to evaluate the landowners’

investment-backed expectations, the actual impact of

the regulation on any individual, the importance of the

—

24

public interest served by the impact of the regulation on

any individual, the importance of the public interest

served by the regulation, or the reasons for imposing the

temporary restriction.” /d. at 320. The court also

observed that the facts of the case did not establish a

total loss of value at any time because the moratorium,

from the date of its imposition and by definition, was

temporary and therefore only a suspension of use. /d.

at 332.

As noted earlier, this Court reaffirmed the three Penn

Central factors as the analysis that best weaves together

the economic impact and governmental justification

that should be considered in order to effectuate the pur-

poses of the Takings Clause and to define liability for just

compensation. Jd. at 321. In the course of this endorse-

ment of Penn Central, this Court reiterated two holdings

from First English that protect government from the

Takings Clause: (1) a regulation that temporarily denies

all economic use is not a taking if imposed to protect

public safety; and (2) delays in the development of land

due to the length of the permitting process (‘“‘normal

delays’’) are unlikely, absent bad faith, to warrant just

compensation.!! Jd. at 329.

However, after explaining at length what actions do

not constitute a taking, Tahoe-Sterra reaffirmed two

realms in which government causes a taking and incurs

liability for just compensation: First, this Court adverted

111 should be observed that this Court’s holding in William-

son County, 472 U.S. 172 (1985) (and its progeny), that a taking

claim is not ripe for adjudication until the government entities with

permitting jurisdiction have come to a final position on what uses

they will and will not allow, essentially dispenses with most taking

claims based on delays in obtaining permits. Regardless of the time

frame for permitting, a taking claim will not exist until the agency

makes clear its final position.

25

to the principle stated in First English that if, under

the Penn Central factors, government has caused a taking,

it may not avoid liability simply by rescinding, abandon-

ing, or changing course and rendering the claim a ““*temp-

orary’’ taking. ‘We merely hold that where the govern-

ment’s activities have already worked a taking of all use

of property, no subsequent action by the government

can relieve it of the duty of just compensation for the

period during which the taking was effective. [ First Eng-

ish, 482 U.S. at 3211 (emphasis added).” Tahoe-Sierra,

535 U.S. at 328. Thus, this Court differentiated govern-

mental action — a moratorium — that is temporary ab

initio from action that works a taking but is later re-

pealed.

Equally important, Tahoe-Sierra discussed at length

the difference between regulation and condemnation,

between government’s use of the police power to regulate

private land use by adjusting the benefit and burdens of

economic life, and the use of eminent domain for public

purposes unrelated to the existing private use. Tahoe-

Sierra, 535 U.S. at 320-26. This Court recognized that

while the Fifth Amendment makes express reference

to the taking of property “for public use,” extending

takings liability to governmental restraint of private land

users and to delays in the issuance of permits requires

inferences from the Fifth Amendment’s purposes. Id.

at 321. Tahoe-Sierra’s explanations on this point in-

cluded (emphasis added):

e [The Fifth Amendment] requires the payment of

compensation whenever the government acquires

private property for a public use, whether the

acquisition is the result of a condemnation or

a physical appropriation. But the Constitution

contains no comparable reference to regulations

26

that prohibit a property owner from making cer-

tain uses of her private property, id. at 321-

22 [footnote omitted] ;

This longstanding distinction between acquisi-

tions of property for public use, on the one hand,

and regulations prohibiting private use, on the

other, makes itt inappropriate to treat cases involv-

ing physical takings as controlling precedents for

the evaluation of a claim that there has been a

‘regulatory taking’ [footnote omitted], and vice

versa, td. at 323;

[Tahoe-Sierra] does not present the ‘classic tak-

ing’ in which the government directly appro-

priates private property for its own use, Eastern

Enterprises v. Apfel, 524 U.S. 498, 522 (1998);

instead the interference with property rights

‘arises from some public program adjusting the

benefits and burdens of economic life to pro-

mote the public good,’ Penn Central, 438 U.S.

at 124, Tahoe-Sierra, 535 U.S. at 324-25.

Thus, Tahoe-Sierra repeatedly and clearly separates con-

demnation for public use from restraint through regula-

distinguishes ‘‘appropriation’” from a_ physical

invasion, and holds that regulatory taking principles dif-

fer from those applicable to condemnation cases.

cuit’s opinion in this case.

Tahoe-Sierra with earlier recitations of Penn Central

and First English allows a distillation of the ways in

None of these distinctions appear in the Second Cir-

which the Second Circuit’s opinion conflicts with or mis-

apprehends decisions of this Court. The appellate deci-

sion:

e violates the Penn Central three-factor balancing

analysis by regarding the ‘character of the action”

Combining this review of

27

as dispositive and by disregarding economic im-

pact and interference with investment-backed

expéctations;

° erroneously applies Tahoe-Sierra’s finding that a

moratorium, being temporary, cannot destroy all

economic use, to a condemnation action that,

when initiated, was legislatively-mandated and

of unknown duration;!2

° ignores Tahoe-Sterra’s direction that condemna-

tion and regulation are different, that condemna-

tion is akin to a physical taking, and that the

principles of regulatory takings cases are not to

be applied to appropriation of private property

through condemnation;

e violates Penn Central, its predecessors (such as

Pennsylvania Coal Company v. Mahon, 260 U.S.

393 (1922)) and progeny (such as Keystone

Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.

470 (1987), Lucas, Palazzolo, and Tahoe-Sierra),

by focusing on the duration and completeness

of the condemnor’s actions instead of the econ-

omic duration and magnitude of the impact of

those actions on the subject property and the

owner’s expectations;

* erroneously regards Tahoe-Sierra’s upholding of

a 32 month moratorium as a basis for holding

12 And in making a factual finding that the property retained

value during the condemnation and after its revocation, the court

violated the evidentiary rule that where witnesses testify as experts

on a matter beyond the purview of non-experts and concur, the

trier of fact may reject their testimony but not make a finding of

fact that contradicts their conclusion, see, e.g., Bose Corp. v.

Consumers Union, 466 U.S. 485, 512 (1984); Moore v. Chesapeake

& Ohio Ry., 340 U.S. 573, 576 (1951); In re Wolverton Assoc.,

909 F.2d 1286, 1296 (9th Cir. 1990); Martin v. Citibank, N.A.,

762 F.2d 212, 217 (2d Cir. 1985); Hurd v. American Hoist &

Derrick Co., 734 F.2d 495, 500 (10th Cir. 1984),

28

that government action that lasted eleven months

is de minimis under Penn Central;

© violates Penn Central and Tahoe-Sterra by con-

sidering, under the third balancing factor, pro-

tection of a condemnor from takings liability,

even though Tahoe-Sierra directs that in cases

involving condemnation for public use, the third

factor weighs heavily toward the property owner;

and

¢ ignored Armstrong, the vitality of which was

reaffirmed in Tahoe-Sterra, by ignoring the near-

perfect fit of the facts of this case to the purpose

of the Takings Clause articulated in that case.

If Penn Central, as explained most recently by Tahoe-

Sierra, means anything, it is that taking claims are to be

evaluated along a continuum. The weakest claims are

those involving a modest impact on economic use and

expectations, weighed against a compelling governmental

need to protect public health or safety. The strongest

claims are those premised on a total or near total loss of

economic use; revocation of vested rights in lawfully-

issued permits; interference with an owner’s substantial,

good-faith expenditures in reliance on permits; and gov-

ernment action that uses condemnation to supplant pri-

vate use with an unrelated public use. The most difficult

cases, of course, are those in the middle. But none of

these cases can be accurately placed along the Takings

Clause’s continuum if courts are directed, authorized, or

encouraged to accord dispositive significance to one fac-

tor or to utilize categorical rules to ignore one or more

factors. The Second Circuit’s opinion in this case upends

the very points that this Court made in Tahoe-Sierra: the

29

necessity of evaluating multiple factors in the adjudica-

tion of taking claims and the distortions of purpose and

fairness that result from categorical analysis. The con-

flicts between the decision in this case and this Court’s

taking jurisprudence involve the most basic and import-

ant guidance in takings law, and warrant resolution.

Il.

THIS CASE WILL ALLOW THE COURT TO CLARIFY

THE PENN CENTRAL FACTORS WITHOUT COLLAT-

ERAL PROCEDURAL ISSUES OR WEIGHING PROPERTY

RIGHTS AGAINST ENVIRONMENTAL CONCERNS.

This case comes before this Court with several attrib-

utes that distinguish it from most of the Fifth Amend-

ment takings cases decided by this Court in the past 25

years: The real property development at issue in this case

does not involve degradation of environmental resources

or potential harm to the environment. The facts relevant

to the taking issue occurred some six years after local and

state government agencies had granted to Santini all per-

mits necessary for his development. For this reason, this

case does not involve a Williamson County “‘finality”

issue. In addition, this case dues not involve the whole

parcel analysis, a regional plan, or an exaction. Nor does

this case involve the application of land use or environ-

mental regulations to a proposed use of the property,

regulations which might be said to adjust the benefits and

burdens of property ownership with respect to allowable

uses and thereby provide the property owner a benefit

as well as a burden.

This is plainly a case in which a single property owner,

in the midst of a fully-permitted, lawful, and benign use

of his land, was forced by an agency’s exercise of dele-

gated eminent domain power to accept the economic

30

idling of his $2 million property and his $5 million equity

investment so that Connecticut could study the suitability

of his land for public use for the benefit of Connecticut’s

largest industrial corporations, hospitals, utilities, and

universities. This case comes to the Court with undis-

puted facts and a stipulated record, the most important

of which is the concurring testimony of the appraisers.

Thus, as to the issue of economic impact, there is a bind-

ing record. The concurrence of the expert real estate

appraisers is extraordinary in that they agreed on the

value of the property prior to the June 1991 designation

as well as the precise length of time that Santini was dis-

abled from generating any revenue. As noted earlier,

see n.12, this concurrence of the expert witnesses pre-

vents a trier of fact from reaching a contrary finding

(as the Second Circuit did). Thus, there is no dispute

as to the facts underlying the first and second Penn

Central factors.

CONCLUSION

For the foregoing reasons, the petitioners respectfully

submit that this Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Second Circuit should be

granted,

TmoTnuy S. HOLLISTER

SHIPMAN & GOODWIN LLP

One Constitution Plaza

Hartford, Connecticut

06103-1919

(860) 251-5000

Attorney for Petitioners,

July 27, 2004 Evandro Santini, et al.

la

APPENDIX A

[Filed Aug 28 2003]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2002

(Argued: June 16, 2003 — Decided: August 28, 2003) ~

Docket No. 02-9150

EVANDRO S. SANTINI and SANTINI HOMES, INC.,

Plaintiffs-Appellants,

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Defendant-Appellee.

Before:

NEWMAN, WINTER and B.D. PARKER, JR.,

Circuit Judges.

Evandro S. Santini and Santini Homes, Inc. appeal

from a judgment of the United States District Court for

the District of Connecticut (Warren W. Eginton, Judge)

dismissing their Fifth Amendment takings claim. Af-

firmed.

2a

TIMOTHY S. HOLLISTER (Patrick M. Fahey, on the

brief), Shipman & Goodwin LLP, Hartford, CT,

for Plaintiffs-Appellants.

ROBERT D. SNOOK, Assistant Attorney General, for

Richard Blumenthal, Attorney General of the State of

Connecticut, Hartford, CT, for Defendant-Appellee.

MARK A. CHERTOK, Sive, Paget & Risel, P.C.,

New York, NY (Duane Desiderio and Mary Lynn Pickel,

National Association of Home Builders, Washington, D.C.,

Michael M. Berger, Berger & Norton, Los Angeles, CA,

and William H. Ethier, HBA of Connecticut, Inc.,

West Hartford, CT, of counsel), filed a brief for Amici

Curiae National Association of Home Builders and Home

Builders Association of Connecticut, Inc. in support of

plaintiffs-appellants.

B.D. PARKER, JR., Circuit Judge.

In this appeal, Evandro S. Santini and his real estate

development firm, Santini Homes, Inc., challenge a judg-

ment of the United States District Court for the District

of Columbia (Warren W. Eginton, Judge) in favor of the

Connecticut Hazardous Waste Management Service

(the “‘Service’’). After unsuccessfully pursuing a state-law

takings claim in the Connecticut courts, Santini sued in

federal court, alleging that the Service’s announcement

that his property was one of three sites under consider-

ation for the location of a low-level radioactive waste

disposal facility constituted a taking without just com-

3a

pensation in violation of the Fifth Amendment.! The

Distirct Court dismissed Santini’s complaint on three

grounds: the Rooker-Feldman doctrine,’ collateral estop-

pel, and the merits of the takings claim.

Because Santini did not raise, and could not have

raised, his federal takings claim in the state court action,

we conclude that the Rooker-Feldman doctrine and res

judicata do not apply. Moreover, we recognize an excep-

tion to the applicability of collateral estoppel for plain-

tiffs who litigate state-law takings claims in state court

solely to comply with the ripeness requirement of Wil-

liamson County Regional Planning Commission v. Hamii-

ton Bank, 473 U.S. 172 (1985), as Santini did. We hold

that litigants who pursue inverse comdemnation actions

in state court in order to comply with Williamson County

may reserve their federal takings claims for later resolu-

tion in federal courts. Because we announce this reser-

vation rule for the first time, we apply the requirement

prospectively only and deem Santini to have reserved his

federal claim, rendering collateral estoppel inapplicable.

But because we believe that the Service is entitled to sum-

mary judgment on the merits of Santini’s takings claim,

we affirm the judgment of the District Court.

I The Fifth Amendment provides, in part, ‘‘nor shall private

property be taken for public use, without just compensation.”

U.S. Const. amend. V. The takings clause of the Fifth Amendment

is made applicable to the states through the Fourteenth Amend-

ment, See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 383-84

& n.4 (1994),

*See Rooker v. Fidelity Trust Co., 263 U.S. 412 (1923);

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983) (holding that inferior federal courts have no jurisdiction

over cases that effectively seek review of state court judgments).

ee

4a

BACKGROUND

The material facts are undisputed. Santini develops

residential real estate in the area surrounding Hartford,

Connecticut. In 1985, he purchased, for $147,500, a

20.3-acre parcel of land in Ellington, Connecticut. San-

tini obtained approval from the Ellington Planning and

Zoning Commission to subdivide the parcel, to be known

as Ellridge Estates, into sixteen lots. Beginning in 1985,

Santini built an access road to the development, installed

storm drainage and sewer systems, and, in all, spent

approximately $500,000 developing infrastructure.

In 1988, Santini purchased, for $1,075,000, a 54.6-

acre parcel (the “Pinney Street property”) adjacent to

the Ellridge Estates parcel, intending to develop the two

parcels into a unified 75-acre residential village consisting

of approximately 100 homes. Santini began building

model homes in 1987, constructing houses on four lots

of the Ellridge Estates parcel. He also made other invest-

ments in the properties, including completing engineering

studies and preliminary layouts for the Pinney Street

property and borrowing funds for the construction of its

infrastructure. Because of a recession in the real estate

market, construction proceeded slowly until 1991. When

market conditions improved, Santini renewed his efforts

to sell homes in Ellridge Estates: he lowered prices, estab-

lished a mortgage program customized to the develop-

ment, and began advertising aggressively.. By June 1991,

he had identified likely buyers for two of the homes,

spent $5 million in acquiring and developing the Elling-

ton properties, and borrowed $4.7 million that was ear-

marked for further construction on the Pinney Street

property.

5a

The Service is a_quasi-public governmental agency

established pursuant to Connecticut General Statutes

§22a-163 et seg. and charged with siting a low-level

radioactive waste disposal facility. The Low-Level

Radioactive Waste Policy Act of 1980, 42 U.S.C. §2021b

et seq., required the states to make adequate provision

for the disposal of low-level radioactive waste generated

within their borders by entering into regional compacts,

and it imposed financial penalties on those states that

failed to do so. In 1986, with few states complying with

the Act, Congress passed the Low-Level Radioactive

Waste Policy Amendments Act, 42 U.S.C. §2021b

et seq., which required the states by the end of 1992 to

dispose of their domestically generated radioactive

waste either in-state or through compacts with other

states. In order to comply with the federal requirements,

Connecticut entered into a regional compact and enacted

legislation directing the Service to locate a disposal facil-

ity within the state. See Conn. Gen. Stat. §22a-163c

(1995).

The Service developed a plan which first required it to

locate sites that were likely to be suitable. Of these, the

Service would then identify those sites that would actu-

ally be suitable. The list of potential sites would be

winnowed to eight, with the Service’s Board of Directors

selecting three of the eight as finalists. Once three final-

ists were identified, on-site examiantions would be con-

ducted and one site would be selected as the preferred

site. The preferred site would then be monitored for at

least twelve months, in accordance with federal Nuclear

Regulatory Commission (“NRC”) regulations. See San-

tint v. Conn. Hazardous Waste Mgmt. Serv., 251 Conn.

121, 125-26 & n.6 (1999). The Service never got beyond

the identification of three finalist sites.

6a

On June 10, 1991, after secret deliberation, the Ser-

vice announced that it had identified three sites. (The

Service later identified five other back-up sites). Two

were located in Ellington, and the third was located in

a neighboring town. One of the Ellington sites included

the undeveloped portion of Santini’s Ellridge Estates and

the entirety of his Pinney Street property. Santini did not

know, prior to the Service’s June 10 announcement, that

his property was under consideration. On June 30, 1991,

the three potential sites, including Santini’s property,

were depicted in the Hartford Courant below the inter-

national symbol for radioactivity and the headline,

‘Nuclear waste: Where should it go?” The Hartford

Courant, June 30, 1991 at H5. In late 1991, the Service

eliminated one of the three sites from consideration,

leaving Santini’s property as one of two finalists.

After vocal public opposition in and around Ellington

to the Service’s siting plan, the Connecticut legislature

passed, and the Governor signed into law, Public Act

92-45, which directed the Service to develop a new plan

for locating a disposal facility. Public Act 92-45, which

took effect May 5, 1992, effectively overruled the Ser-

vice’s June 10, 1991 siting announcement. Ultimately,

neither Santini’s property nor any other Connecticut site

was selected as the preferred site, a necessary prerequi-

site to the state’s exercise of its eminent domain power

to take private property such as Santini’s for the con-

struction of a disposal facility.°

Sven if Santini’s property had been designated the prefer-

red site, it still would have had to clear a number of regulatory

hurdles before becoming the location of the waste disposal facility.

For example, permits from the NRC, the Connecticut Department

of Environmental Protection, and the Connecticut siting council,

as well as eminent domain proceedings, see Conn. Gen. Stat.

§ 22a-163w(b)(c) (1995), would have been required.

_

ry

7a

Notwithstanding the enactment of Public Act 92-45,

however, Santini’s property remained economically idle

until mid-1993, and he continued to incur additional

carrying costs, including interest on debt and property

taxes, until 1994. In 1994 Santini sued the Service in

Connecticut Superior Court, alleging that its June 10,

1991 siting announcement — naming his property one of

three finalists — constituted a temporary taking of his

property without just compensation in violation of Art-

icle I, §11 of the Connecticut Constitution. Santini’s

complaint alleged that the Service’s siting announcement

had: (1) prevented him from selling the homes and lots

in Ellridge Estates; (2) prevented-him from completing

development of Ellridge Estates and the Pinney Street

property; (3) denied him any economic retum on his

investments in the two parcels; (4) caused him to incur

additional costs and incidental damages; and (5) left him

with no alternative use of his property. Santini brought

only a state-law takings claim because he believed that,

under the Supreme Court’s decision in Williamson Coun-

ty Regional Planning Commission v. Hamilton Bank, 473

U.S. 172 (1985), a federal takings claim would not be

ripe until he had sought, and been denied, just compen-

sation in a state-law inverse condemnation action.

The Superior Court held an eight-day bench trial in

early 1998. In addition to fact witnesses, Santini and the

4«Inverse condemnation should be distinguished from emi-

nent domain. Eminent domain refers to a legal proceeding in

which a government asserts its authority to condemn property.

Inverse condemnation is a shorthand description of the manner in

which a landowner recovers just compensation for a taking of his

property when condemnation proceedings have not been institu-

ted.” Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980)

(citations and internal quotation marks omitted).

8a

Service both presented expert appraisal testimony con-

cerning the economic impact of the siting announcement

on Santini’s property. Santini’s appraiser, Edward

Heberger, testified that Santini’s damages as a result of

the June 10, 1991 siting announcement were $890,000

for the Ellridge Estates property and $65,000 for the

Pinney Street property, for a total loss of $955,000.

Heberger’s appraisal was based on his conclusion that the

siting announcement had paralyzed Santini’s construction

and sales efforts for two years, a period including the

eleven months that the siting desigiation was in effect

as well as a thirteen-month ‘“‘stigma period” that fol-

lowed. The Service’s appraiser, William N. Kinnard,

Jr., testified that the siting announcement had dimin-

ished the value of the Ellridge Estates properby by $185,-

000 and the Pinney property by $30,000, for a total loss

of $215,000.

Following trial, the Superior Court found that, al-

though Santini had suffered an economic loss as a result

of the siting announcement, the announcement “‘was part

of the state’s planning process,”’ and ‘‘[s] uch planning is

not actionable.” Santini v. Conn. Hazardous Waste

Mgmt. Serv., No. CV 94 0538646S, 1998 WL 422166,

at *5 (Conn. Super. July 13, 1998). The Superior Court

found no evidence that the state’s intent to condemn

Santini’s property had ever become ‘“‘fixed and irrevers-

ible,” id. at *6 (citation and quotation marks omitted),

and concluded that ‘‘there was no unconstitutional tak-

ing of any kind,” td. at *7. Accordingly, the Superior

Court entered judgment for the Service. id.

Santini appealed to the Appellate Court of Connec-

ticut, but before that court could act the Supreme Court

of Connecticut transferred the case to itself. Santinz,

251 Conn. at 123 n.1. The Supreme Court affirmed the

9a

judgment of the Superior Court by a vote of five to two.

Id. at 144, 151. Echoing the Superior Court, the Sup-

reme Court held that the Service’s siting announcement

constituted ‘“‘mere governmental planning and prelim-

inary steps in anticipation of condemnation,” not ‘“‘a

fixed and irreversible decision by the state to exercise its

power of eminent domain regarding [Santini’s prop-

erty]. Id. at 140; see also td. at 144. The Supreme

Court of the United States denied Santini’s petition for

certiorari. Santini v. Conn. Hazardous Waste Mgmt.

Serv., 530 U.S. 1225 (2000).

Following his loss in state court, Santini sued the Ser-

vice in the District Court, alleging a takings claim under

the Fifth and Fourteenth Amendments to the United

States Constitution and 42 U.S.C. §1983. The Service

moved to dismiss the complaint and for summary judg-

ment, and Santini also moved for summary judgment.

The District Court dismissed the complaint for lack of

subject matter jurisdiction under the Rooker-Feldman

doctrine, concluding that Santini’s federal takings claim

was inextricably intertwined with the judgment of the

Connecticut Supreme Court dismissing his state-law

takings claim. The court also noted that, even if Rooker-

Feldman did not apply, it would grant the Service’s

motion for summary judgment on the basis of collateral

estoppel and on the merits of Santini’s takings claim.

The court concluded that collateral estoppel barred

Santini’s federal takings claim because ‘‘the issue neces-

sary to the Connecticut Supreme Court’s decision — the

extent or finality of the defendant’s action — is identical

to [the] consideration required for the instant federal

takings claim.”’ (Ruling on Mot. to Dismiss and Cross-

Motions for Summ. J., Aug. 27, 2002, at 13.) The Dis-

trict Court also noted that the Service was entitled to

10a

summary judgment because it had not made a final deci-

sion as required by Williamson County and because the

selection of Santini’s property as one of three finalists

“left open the possibility that [Santini’s} property would

not ultimately be selected as the radioactive disposal

site.” ([d. at 15.) This appeal foliowed.

DISCUSSION

The Service defends the judgment of the District

Court on three grounds. It argues that: (1) Santini’s

takings claim is not ripe because the Service did not make

a final decision with respect to his property; (2) the Dis-

trict Court properly consluded that it lacked jurisdiction

under Rooker-Feldman; and (3) Santini’s takings claim

is barred by res judicata and collateral estoppel. We

review de novo the decision of the District Court, which

granted the Service’s motions to dismiss and for sum-

mary judgment and denied Santini’s motion for summary

judgment. See, e.g., Manning v. Utils. Mut. Ins. Co., 254

F.3d 387, 391 (2d Cir. 2001).

I. Ripeness

In Williamson County, the Supreme Court established

a two-pronged test for determining whether a Fifth

Amendment takings claim is ripe. “The first prong

requies the government entity charged with enforcing

the regulations at issue to have rendered a ‘final deci-

sion,’ ” and “[t] he second prong requires the plaintiff

to have sought compensation if the state provides a

“reasonable, certain and adequate provision for obtain-

ing compensation.’ ” Southview Assocs., Ltd. v. Bon-

gartz, 980 F.2d 84, 95 (2d Cir. 1992) (quoting Willtam-

son County, 473 U.S. at 186, 194). Since the Service

lla

concedes that Santini’s pursuit of a state-law takings

claim in the Connecticut courts satisfies the second

prong, the dispute over ripeness focuses on the first

prong: whether the Service rendered a final decision with

respect to Santini’s property.

Under the first Williamson County prong, a takings

claim is not ripe until the appropriate government en-

tity has reached a final decision regarding the property

at issue. Williamson County, 473 U.S. at 186. The Ser-

vice argues that Santini’s takings claim is unripe because

it never made the “‘final decision” to acquire Santini’s

property and to locate a disposal factility there, and

because “[t]he only action by the government was a

public announcement that certain sites were to be con-

sidered for possible future acquisiton.” (Br. of Def.-

Appellee at 15.) Implicit in the finality requirement of

Williamson County is the notion that a takings claim is

unripe if, before seeking just compensation through an

inverse condemnation claim, the plaintiff could have

taken some action to prevent the challenged govern-

mental regulation from depriving him of an economically

viable use of his property. In Williamson County itself,

for example, a jury had found that the respondent, Ham-

ilton Bank of Johnson City, would be denied the econo-

mically feasible use of its property if it were forced to

develop the property in conformity with each of eight

objections raised by the petitioner, the Williamson

County Regional Planning Cominission. /d. at 191.

Finding the Bank’s inverse condemnation claim unripe,

the Supreme Court noted that “[i] t is not clear whether

the jury would have found that the respondent had been

denied all reasonable beneficial use of the property had

any of the eight objections been met through the grant

of a variance.”’ I/d.; see also Palazzolo v. Rhode Island,

12a

533 U.S. 606, 620 (2001) (holding that regulatory tak-

ings claim was unripe until property owner had “followed

reasonable and necessary steps to allow regulatory agen-

cies to exercise their full discretion in considering devel-

opment plans for the property’’). Significantly, the Ser-

vice does not suggest any action that Santini could have

taken to “ripen” his takings claim, and we are aware of

none. See, e.g., Hall v. City of Santa Barbara, 833 F.2d

1270, 1281-82 n.28 (9th Cir. 1986) (“It is not clear what

the city would have the Halls do to perfect their claim.

. . The Halls have no further administrative recourse

available... .”’).

In any event, the Service misconstrues the ripeness

inquiry in two ways. First, it erroneously assumes that,

under Williamson County, the particular governmental

decision of which a takings plaintiff complains — here,

the siting announcement — must itself constitute a final

decision. That is not the case. Rather, the first prong

of Williamson County requires only that the govern-

ment entity have rendered a final decision. See William-

son County, 473 U.S. at 186. Once it does so, a takings

claim based on an earlier step of the regulatory process

is ripe (though not necessarily meritorious). Second,

the Service erroneously assumes that a takings claim is

not ripe unless the government entity’s final decision is

adverse to the plaintiff. This assumption no doubt ex-

plains the Service’s misplaced reliance on the true-but-

irrelevant fact that the State of Connecticut never made

the final decision to acquire Santini’s property. For

ripeness purposes, it does not matter that the Service's

ultimate decision — not to acquire Santini’s property —

was favorable to Santini. Rather, all that matters is

that the Service made a final decision. Thus, regardless

ime BUD we

13a

of whether the siting announcement was itself a final

decision,” and despite the fact that the Service never

made the final decision to acquire Santini’s property, the

Service did make the final decision not to acquire San-

tini’s property. That is all that Williamson County

requires.

III. Rooker-Feldman, Res Judicata, and

Collateral Estoppel

The Service argues that, as a result of the Connecticut

Supreme Court’s judgment in its favor on Santini’s

state-law takings claim, the Rooker-Feldman doctrine

deprives the District Court and this Court of subject mat-

ter jurisdiction over Santini’s Fifth Amendment takings

claim and, in the event that Rooker-Feldman does not

apply, res judicata and collateral estoppel bar Santini

from litigating his takings claim in the federal courts.

Santini counters that, even if Rooker-Feldman, res

judicata, and collateral estoppel would otherwise apply,

the unique procedural posture of post-Willamson County

takings claims requires us to carve out exceptions to the

preclusion doctrines. Before deciding whether to create

the exceptions that Santini requests, however, we must

determine whether any of the three preclusion doctrines

applies.

The essence of the Rooker-Feldman doctrine “is that

inferior federal courts have no subject matter jurisdiction

We take no position on whether Santini’s claim would have

been ripe before the state decided not to acquire his property.

That is, the siting announcement itself might have constituted a

final decision under Williamson County, as Santini argues, but we

need not decide that here, because the state’s ultimate decision

not to acquire Santini’s property was undeniable final.

l4a

over cases that effectively seek review of judgments of

state courts and that federal review, if any, can occur

only by way of a certiorari petition to the Supreme

Court.”” Moccio v. N.Y. State Office of Court Admin.,

95 F.3d 195, 197 (2d Cir. 1996). Rooker-Feldman

bars those claims that were adjudicated in a prior state

court action, as well as those claims that are ‘“‘inextric-

ably intertwined” with the state court judgment. /d. at

198-99. We have held that “ ‘inextricably intertwined’

means, at a minimum, that where a federal plaintiff had

an opportunity to litigate a claim in a state proceeding

.. subsequent litigation of the claim will be barred

under the Rooker-Feldman doctrine if it would be barred

under the principles of preclusion.” /d. at 199-200.

Santini’s Fifth Amendment takings claim was not liti-

gated in the Connecticut state courts, where Santini

asserted only a state-law takings claim. In order for

Rooker-Feldman and res judicata to apply, then, Santini

must have had the opportunity to litigate his federal

takings claim in the state court action. Both federal

and Connecticut law make clear that Santini did not have

this opportunity. First, according to Santini, the only

reason he brought a state-law takings claim before pur-

suing a federal claim is because he believed that Williamson

County required him to do sc. The Supreme Court

held in Williamson County that, “‘because the Fifth

Amendment proscribes takings without just compen-

sation,” a takings claim is not ripe until the property

owner has sought compensation through the procedures —

that the state provides. Williamson County, 473 U.S.

at 194 n.13. The Court indicated that, if state law per-

mits a property owner to bring an inverse condemnation

action to obtain just compensation for an alleged taking,

then the property owner must pursue such an action

a ee

l5a

before bringing a Fifth Amendment takings claim under

§ 1983. Id. at 196-97,

Applying Williamson County, we held in Southview

Associates, 980 F.2d at 99-100, that the plaintiff's regu-

latory takings claim was not ripe because the plaintiff

had not pursued an inverse condemnation action under

Vermont law in state court. Like the plaintiffs in Wil-

lamson County and Southview Associates, Santini could

not have brought a Fifth Amendment takings claim in

federal court until after he brought a state law inverse

condemnation action in state court. Moreover, under

Connecticut law Santini could not have litigated his Fifth

Amendment takings claim in the State court action. In

Melillo v. City of New Haven, 249 Conn. 138, 154 n.28

(1999), the Connecticut Supreme Court held that the

plaintiffs were not entitled to consideration of their

federal takings claim in state court “because of the

existence of a legally sufficient procedure, under article

first, §11, of the constitution of Connecticut, to obtain

just compensation for the alleged taking of their prop-

erty.”’ Thus, because Santini neither brought, nor could

have brought, a Fifth Amendment takings claim in the

Connecticut state court action, Rooker-Feldman and res

judicata do not apply. See Moccio, 95 F.3d at 199-200;

Isaac v. Truck Serv., Inc., 253 Conn. 416, 420-21 (2000).

Whether to apply collateral estoppel is a more diffi-

cult question. Collateral estoppel differs from Rooker-

Feldman and res judicata in at least one significant res-

pect. Collateral estoppel may preclude the relitigation of

an issue that was actually litigated in a previous action,

even if the claim in which the issue arises in the subse-

quent action was not brought and could not have been

brought in the previous action whose judgment gives rise

to the estoppel. See, e.g., Gladysz v. Planning & Zoning

USSSA

l6a

Comm'n. of Town of Plainville, 256 Conn. 249, 260

(2001); see also Restatement (Second) of Judgments

§27 (1982) (‘When an issue of fact or law is actually

litigated and determined by a valid and final judgment,

and the determination is essential to the judgment, the

determination is conclusive in a subsequent action bet-

ween the parties, whether on the same or a different

claim.”’ (emphasis added)).

Ordinarily, collateral estoppel would apply if (1)

an issue that is an essential element of Santini’s Fifth

Amendment takings claim was actually litigated in the

state court action; and (2) the Connecticut Supreme

Court “made a determination that was necessary to its

judgment with respect to that issue.” R & R Pool &

Patio, Inc. v. Zoning Bd. of Appeals of Town of Ridge-

field, 257 Conn. 456, 467 (2001). The Connecticut Sup-

reme Court rejected Santini’s state-law takings claim

because it concluded that the June 10 siting announce-

ment constituted mere governmental planning, not an

actionable taking. It is undisputed that this issue was

actually litigated in the state courts and was necessary to

the Supreme Court’s decision. In addition, for the

reasons discussed in Section IV, infra, the mere-govern-

mental-planning issue is essential to Santini’s Fifth

Amendment takings claim as well. Nevertheless, we

decline to apply collateral estoppel here for an inde-

pendent reason.

The requirement of Williamson County that a prop-

erty Owner must pursue compensation through available

state procedures, such as a state-law inverse condemna-

tion action, before bringing a Fifth Amendment takings

claim has created a Catch-22 for takings plaintiffs.

Under Williamson County, a plaintiff may not bring a

Fifth Amendment takings claim without first having

at ihiat PROG NS O) aT TY Pet ee TS

Pee a

17a

unsuccessfully pursued a state-law takings claim. Under

traditional notions of collateral estoppel, however, the

state court’s adverse judgment will often preclude the

plaintiff's subsequent Fifth Amendment takings claim.

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

863 (9th Cir. 1995) (stating that collateral estoppel

bars federal takings claim if state court’s earlier decision

on state-law takings claim was “‘an equivalent determin-

ation under the federal taking clause’). Though appli-

cation of the preclusion doctrines deprives a large class

of plaintiffs of the opportunity to pursue Fifth Amend-

ment takings claims in federal court — or, in many cases,

anywhere — most of the circuits to have addressed this

issue have declined to create an exception to render res

judicata and collateral estoppel inapplicable in this sit-

uation. See, e.g. Wilkinson v, Pitkin County Bd. of

County Comm'rs, 142 F.3d 1319, 1324 (10th Gir.

1998) (“We conclude the Williamson ripeness require-

ment is insufficient to preclude application of res judicata

and collateral estoppel principles in this case.’’); Palomar

Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d

362, 364-65 (9th Cir, 1993) (holding that res judicata

bars federal takings claim); Peduto v. City of N. Wild-

wood, 878 F.2d 725, 729 (3d Cir. 1989) (same); see also

Barefoot v. City of Wilmington, 306 F.3d 113, 121 (4th

Cir. 2002) (holding that Rooker-Feldman doctrine

deprived district court of jurisdiction over federal takings

claim); but see Anderson v. Charter Township of Ypst-

lanti, 266 F.3d 487, 497 (6th Cir. 2001) (holding that

Rooker-Feldman doctrine bars federal takings claim

brought by plaintiff who had initially brought both state

and federal takings claims in state court and, after remov-

al and remand, failed to reserve federal claim in state

court); Fields v. Sarasota Manatee Airport Auth., 953

F.2d 1299, 1305-06 (11th Cir. 1992) (recognizing a

18a

limited exception to the applicability of res judicata

and collateral estoppel to federal takings claims).

Although we are not prepared to declare res judicata

and collateral estoppel wholly inapplicable to takings

claims, we part ways with most of our sister circuits in

favor of a middle ground. In England v. Loutsiana State

Board of Medical Examiners, 375 U.S. 411 (1964), the

Supreme Court recognized a procedure whereby parties

who are involuntarily litigating state-law claims in state

court may “reserve”’ their federal claims for a later deter-

mination by a federal court. The plaintiffs in England

filed a complaint in federal court raising claims under

both federal and state law, and the district court ab-

stained pursuant to Railroad Commission v. Pullman Co.,

312 U.S. 496 (1941), in order to permit the Louisiana

state courts to resolve issues of state law. England, 375

U.S. at 412-13; Temple of Lost Sheep Inc. v. Abrams,

930 F.2d 178, 182 (2d Cir. 1991). The plaintiffs then

brought an action in state court, raising the federal and

state claims. England, 375 U.S. at 413. After losing in

state court, plaintiffs returned to federal court, where

they sought to pursue their federal claims anew. 7d.

at 413-14. The district court dismissed the claims as

precluded by the state court judgment, and the plaintiffs

appealed directly to the Supreme Court. /d. at 414-15.

Concerned that litigatns would otherwise be deprived

of the opportunity to litigate their federal claims in

federal court, the England Court created a mechanism

whereby state-court litigants could reserve their federal

claims and deprive the state court’s judgment of pre-

clusive effect in federal court. The Court stated, ‘‘There

are fundamental objections to any conclusion that a liti-

gant who has properly invoked the jurisdiction of a Fed-

eral District Court to consider federal constitutional claims

19a

can be compelled, without his consent and through no

fault of his own, to accept instead a state court’s deter-

mination of those claims.” Jd. at 415. The Court held

that “if a party freely and without reservation submits

his federal claims for decision by the state courts, liti-

gates them there, and has them decided there, then...

he has elected to forgo his right to return to the District

Court.” Jd. at 419. The Court also held that “a party

may readily forestall any conclusion that he has elected

not to return to the District Court” by “inform[ing]

the state courts that he is exposing his federal claims

there only for [a limited] purpose. . . , and that he

intends, should the state courts hold against him on the

questin of state law, to return to the District Court for

disposition of his federal contentions.” Jd. at 421.

Although the plaintiffs in England had not reserved their

federal claims in state court, the Supreme Court declined

to apply the case’s holding to them, as they had incor-

rectly, but reasonably, believed that an earlier Supreme

Court decision required them to raise their federal claims

in state court. Jd. at 422-23,

Admittedly, the procedural posture of this case dif-

fers somewhat from that of England, as Santini filed a

complaint in state court first and, therefore, there was no

occasion for a federal court to abstain. This distinction,

however, is not a meaningful one. Although Santini

initiated his action in state court, he was not in state

court voluntarily. See Fields, 953 F.2d at 1306 (hold-

ing that ‘‘would-be federal court litigants who are forced

to pursue state court proceedings in order to Satisfy

exhaustion requirements imposed by federal law inci-

dent to a takings clause claim are ‘involuntarily’ in the

state courts, and therefore qualify for the exception

to generally applicable res judicata principles”). More-

20a

over Santini did not, and could not, present his federal

claim to the state court. The Supreme Court has made

clear that these facts carry substantial weight in deter-

mining whether a §1983 claim is barred by res judicata

or collateral estoppel on the basis of a prior state court

judgment. In Migra v. Warren City School District Board

of Education, 465 U.S. 75 (1984), the Court held that

state-court judgments have the same preclusive effect

in federal-court §1983 actions as they would have in

state court. The Court noted, however, that the “‘peti-

tioner d[id] not claim that the state court would not

have adjudicated her federal claims had she presented

‘them in her original suit in state court. Alternatively,

petitioner could have obtained a federal forum for her

federal claim by litigating it first in a federal court.”’

Id. at 84-85. Here, in contrast, the Connecticut state

courts would not have adjudicated Santini’s federal

takings claim if he had presented it to them, see Mel-

illo, 249 Conn. at 154 n.28, and Santini could not have

litigated his federal takings claim in federal court before

proceeding to state court, as it would have been dis-

meee'y as unripe, see Southview Assocs., 980 F.2d at

100.

Sin support of Santini, the amici urge us to hold that the

second prong of Williamson County requires only that plaintiffs

pursue just compensation through state administrative proceed-

ings, not through state-court inverse condemnation actions. For

two independent reasons, however, this argument does not avail

Santini, First, we are bound by Williamson County and Southview

Associates, both of which require takings plaintiffs to pursue

state-law inverse condemnation actions before bringing federal

takings claims. We decline amici’s invitation to find that the Sup-

reme Court overruled Williamson County sub silentio in City of

Chicago v. International College of Surgeons, 522 U.S. 156 (1997).

If the Supreme Court had intended to overrule the ripeness require-

[footnote continued]

2la

While we have not previously held that Parties may

use the England reservation procedure in cases that did

not properly originate in federal court, we deem it

appropriate to permit parties like Santini, who litigate

state-law takings claims in state court involuntarily, to

reserve their federal takings claims for determination by

a federal court. It would be both ironic and unfair if the

very procedure that the Supreme Court required San-

tini to follow before bringing a Fifth Amendment tak-

ings claim — a state-court inverse condemnation action —

also precluded Santini from ever bringing a Fifth Amend-

ment takings claim. We do not believe that the Supreme

Court intended in Williamson County to deprive all

property owners in states whose takings jurisprudence

generally follows federal law (2e., those to whom col-

lateral estoppel would apply) of the opportunity to bring

Fifth Amendment takings claims in federal court. Thus,

in permitting state-court litigants to reserve their federal

takings claims for determination in subsequent federal-

court actions, we decline to interpret Williamson County

in such a way as to deprive a large class of prospective

ment of Williamson County, it would have said so explicitly.

See Hohn v, United States, 524 US. 236, 252-53 (1998) (“This

is not to say opinions Passing on jurisdictional issues sub silentio

may be said to have overruled an opinion addressing the issue

directly. Our decisions remain binding precedent until we see fit

to reconsider them, regardless of whether subsequent cases have

raised doubts about their continuing vitality.” (internal citation

omitted)). Second, precedent aside, because Santini has already

brought an inverse condemnation action in state court, our holding

that such an action is not required would not benefit him. To the

contrary, if Santini’s state-court litigation were not required, then

his presence in state court would have been voluntary, and his

federal claim would be barred by collateral estoppel.

22a

plaintiffs of federal forums for their federal takings

claims.’

Future takings plaintiffs will still have to comply with

the Wilkamson County requirement that they pursue

available inverse condemnation actions under state law

before bringing federal takings claims. In doing so,

however, such parties may explicitly reserve their fed-

eral takings claims, making clear to the state court and

adverse parties that they intend to bring a federal tak-

ings claim in federal court once the litigation of the state-

law claim has been completed. This “Santini reserva-

tion” will mean that the state court’s judgment on the

state-law claim would not have preclusive effect in the

subsequent federal action. Although Santini did not

make such a reservation in Connecticut state court, we

apply the reservation requirement prospectively only,

and we deem Santini, who neither litigated his federal

claim in state court nor sought to do so, to have reserved

his federal claim. See England, 375 U.S. at 422-23

(applying new rule prospectively); Bd. of Regents of

Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 498

(1980) (Brennan, J., dissenting) (advocating ‘‘wholly

prospective” application of reservation rule). Thus,

because the judgment of the Connecticut Supreme Court

on Santini’s state-law claim has no preclusive effect

here, we turn to the merits of the takings claim.

We recognize that, unlike Connecticut, other states may

permit property owners to bring state and federal takings claims

simultaneously. Plaintiffs who pursue inverse condemnation

actions in those states in order to comply with Williamson County

also may reserve their federal claims for subsequent federal court

adjudication. This result is consistent with England, in which

the plaintiffs were permitted to raise their federal claims anew in

federal court even though they had already litigated them in state

court,

incertae

Ete

23a

IV. Summary Judgment

The fact that Santini’s takings claim is based on noth-

ing more than the Service’s 199] siting announcement —

perhaps the prototypical precondemnation governmental

activity — dooms the claim on its merits, as the Supreme

Court has explicitly held that precondemnation activities

do not constitute takings. The Court has stated:

Appellants also claim that the city’s precondem-

nation activities constitute a taking. The State Sup-

reme Court correctly rejected the contention that

} the municipality’s good-faith planning activities,

which did not result in successful Prosecution of an

: eminent domain claim, so burdened the appellants’

enjoyment of their property as to constitute a tak-

ing. Even if the appellants’ ability to sell their prop-

erty was limited during the pendency of the con-

demnation proceeding, the appellants were free to

sell or develop their property when the proceedings

ended. Mere fluctuations in value during the process

of governmental decisionmaking, absent extraord-

inary delay, are incidents of ownership. They can-

not be considered as a taking in the constitutional

sense,

Agins v. City of Tiburon, 447 U.S. 255, 263 n.9 (1980)

(citations and_ internal quotations marks omitted);

see also Danforth v. United States, 308 U.S. 271, 285

(1939) (stating that “[a] reduction or increase in the

value of property . . . by reason of legislation for or the

beginning or completion of a project” does not consti-

tute a taking). The Supreme Court later cited Agins and

Danforth with approval for the Proposition that “depre-

ciation in value of [ ] property by reason of preliminary

activity is not chargeable to the government.” First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 320 (1987).

24a

There is no doubt that the siting announcement

constitutes “‘preliminary activity” as that term is used

in First English, as the announcement was but one step

of many that the state had to pursue before it could con-

demn Santini’s property. The Service never conducted

the requisite on-site examination of Santini’s property,

never selected it as the preferred site, did not monitor

it for twelve months as required by NRC regulations,

and did not obtain the necessary permits from the NRC,

the Connecticut Department of Environmental Protec-

tion, and the Connecticut siting council.

Despite Agins, Danforth, and First English, Santini

argues that the siting announcement constitutes a tak-

ing under Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992) or, alternatively, under Penn Central

Transportation Co. v. City of New York, 438 U.S. 104

(1978). As Santini acknowledges, Lucas requires him

to show that the siting announcement deprived him of

all economically viable use of his property. Lucas, 505

U.S. at 1030. Santini cannot make this showing. Fol-

lowing the trial in Santini’s state-court action, the Super-

ior Court noted that ‘“[n] one of the experts said plain-

tiffs’ land had no economic or productive use except

one expert said that the Ellridge [property] had no argi-

cultural value and the Pinney Street land had lost one-

half its value as agricultural land.”” Santini v. Conn.

Hazardous Waste Mgmt. Serv., No. CV 94 05386465,

1998 WL 422166, at *5 (Conn. Super. July 13, 1998).

Accordingly, the Superior Court found, and we agree,

that “both [of Santini’s properties] did have use and

value after the notice.” Jd. The temporary nature of

the siting announcement is significant. As the Supreme

Court has stated, ‘‘Logically, a fee simple estate cannot

be rendered valueless by a temporary prohibition on

25a

economic use, because the property will recover value as

soon as the prohibition is lifted.” Tahoe-Sierra Pres.

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

302, 332 (2002). Indeed, Santini acknowledges that his

property recovered at least some of its value after the

siting announcement was withdrawn.

Nor can Santini succeed under Penn Central. First, to

the extent there is any tension between Penn Central

and Agins, we note that Agins, which was decided two

years after Penn Central, held that precondemnation

activity that restricts a landowner’s ability to sell or

develop property or causes a dimunition in its value does

not constitute a taking. Agins, 447 U.S. at 263 n.9.

Regardless, Agins is easily reconciled with Penn Cen-

tral. The factors of “particular significance’ to the

Penn Central analysis are ‘‘[t] he economic impact of the

regulation on the claimant,’’ “the extent to which the

regulation has interfered with distinct investment-backed

expectations,” and “the character of the government

action.”” Penn Central, 438 U.S. at 124. Though the

siting announcement no doubt had an economic impact

on Santini’s property, and interfered with his invest-

ment-backed expectations to some extent, the character

of the governmental action is of principal importance

here. The Service’s siting announcement obviously

cannot be characterized as a ‘‘physical invasion” of

Santini’s property, td., but, rather, merely one step

along a path that might have led — but ultimately did

not lead — to the government’s acquisition of his prop-

erty. The relatively swift overruling of the siting an-

nouncement is also significant, as the Supreme Court

has held that ‘“‘the duration of the restriction is one of the

important factors that a court must consider in the

appraisal of a regulatory takings claim.’’ Tahoe-Sierra,

535 U.S. at 342.

26a

We are not unmindful of the economic impact that

the siting announcement obviously had on Santini’s

efforts to develop and sell his property. Unfortunately

for Santini, however, this impact does not necessarily

mean that the governmental action of which he com-

plains constitutes a taking. The Court recognized in

Penn Central that ‘tin a wide variety of contexts, ...

government may execute laws or programs that adversely

affect recognized economic values.’’ Penn Central, 438

U.S. at 124. Such programs are, as noted above, mere

incidents of property ownership. See Park Ave. Tower

Assocs. v. City of New York, 746 F.2d 135, 139 (2d Cir.

1984) (citing “legion of cases that have upheld regu-

lations which severely diminished the value of com-

mercial property’’); see also First English, 482 U.S. at

320; Agins, 447 U.S. at 263 n.9; Danforth, 308 U.S.

at 285. Santini cannot “satisfy the heavy burden placed

upon one alleging a regulatory taking.”’ Keystone Bitu-

minous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493

(1987). Therefore, whatever the economic impact of the

siting announcement upon Santini’s property, no com-

pensable taking occurred.

Our decision also makes for sound public policy. As

the Connecticut Supreme Court noted, “if the govern-

ment were to be considered as having accomplished a

compensable taking as a result of mere planning that,

because of its publicity, harmed the value of the prop-

erty, public planning would be discouraged, and govern-

mental secrecy in the planning process would be encour-

aged.”’ Santini v. Conn. Hazardous Waste Mgmt. Serv.,

251 Conn. 121, 142 (1999). Similarly, in declining to

adopt a categorical rule that temporary regulations

depriving property owners of all economically viable use

of their property constitute takings, the Supreme Court

Senn (BEA Rid A INES MEL K DOBIER | v8 tbat kp Bade nasteeel oon et Rabat Ceeviste

ey eT ee

27a

observed, “A rule that required compensation for every

delay in the use of property would render routine govern-

ment processes prohibitively expensive or encourage

hasty decisionmaking.” Tahoe- Sterra, 535 U.S. at 335;

see also id. at 337 (rejecting narrower per se rule because

“it would still impose serious financial constraints on the

planning process”). We do not believe that the Takings

Clause requies a state to choose among planning in sec-

ret, not planning at all, and exposing itself to takings

claims from every Property owner whose land might be

affected by its plans. According, the Service is entitled

to judgment on the merits of Santini’s Fifth Amendment

takings claim.

CONCLUSION

For these reasons, we affirm the judgment of the Dis-

trict Court.

;

28a

APPENDIX B

[Filed Aug 27 2002]

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

No. 3:01cv563 (WWE)

EVANDRO §. SANTINI and

SANTINI HOMES, INC.,

Plaintiffs,

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Defendant.

RULING ON MOTION TO DISMISS AND

CROSS-MOTION FOR SUMMARY JUDGMENT

This case concerns an alleged taking of property by

Connecticut Hazardous Waste Management Service in

violation of the Fifth Amendment of the United States

Constitution. The Plaintiffs, Evandro Santini and Santini

Homes, have previously litigated their Connecticut State

Constitutional claim to the Connecticut Supenor Court

and the Connecticut Supreme Court. In that action, the

Connecticut Supreme Court affirmed the Superior

Court’s holding that no constitutional taking had occur-

29a

red. Santini v. Connecticut Hazardous Waste Management

Service, 251 Conn. 121 (1999).

The defendant has filed a motion to dismiss. The par-

ties have also filed cross-motions for summary judgment.

After consideration of the pending motions, defendant’s

motion to dismiss will be granted on the basis of the doc-

trine of federal jurisdiction formulated in Rooker v. Fidel-

tty Trust Co., 263 U.S. 413 (1923), and District of Col-

um bia Court of Appeals v. Feldman, 460 U.S. 462 (1983)

(the “Rooker-Feldman doctrine”). In the alternative,

even if federal jurisdiction does exist, defendant’s motion

for summary judgment will be granted on the basis of col-

lateral estoppel and on the merits of the claim.

BACKGROUND

The parties have submitted affidavits, exhibits and

Local Rule 9(c) statements of facts, which reveal the fol-

lowing undisupted facts. These undisputed facts are also

reflected in Santini v. Connecticut Hazardous Waste Man-

agement Service, 251 Conn. 121 (1999).

Evandro Santini is a developer of residential homes,

and Santini Homes is the corporation used by Mr. Santini

to develop real estate properties. Connecticut Hazardous

Waste Management Service (“Service”) is a quasi-public

government agency established pursuant to Connecticut

General Statutes Section 22a-163, et. seg., with the res-

ponsibility to site a facility for the disposal of low-level

radioactive waste.

In 1985, the plaintiffs acquired land in Ellington, Con-

necticut, and obtained approval for a 16-lot subdivision

to be known as Ellridge Estates. The plaintiffs’ goal was

to create up to 100 homes. In support of this goal, the

plaintiff installed road, sewer and drainage improvements.

30a

In March, 1988, Santini purchased an adjoining 54-acre

parcel that has substantial frontage on a town road called

Pinney Street.

In 1987, after conducting due diligence and market

research, the plaintiffs began construction of model

homes in Ellndge Estates. From 1989 through the spring

of 1991, construction of Ellridge Estates proceeded slow-

ly due to the growing regional real estate recession. As of

June, 1991, plaintiffs had, inter alta, subdivision approval

for 16 homes; and an equity investment in 75 acres, sub-

division improvements, four constructed model homes of

more than $5 million; a vested property right under

state law to proceed with residential construction; and as-

of-right zoning for the balance of the development plan

for the 54 acres.

On June 10, 1991, the Service announced that a site,

which included the plaintiffs’ property, was one of three

sites under consideration for a low-level radioactive waste

disposal facility. Any one of these three sites could have

become a “preferred site’’ to become the location for the

disposal facility. On June 30, 1991, the plaintiffs’ prop-

erty was depicted on the front page of The Hartford Cou-

rant alongside the international symbol for radioactivity.

No site was actually ever selected as the preferred site.

After selection of a preferred site, additional administra-

tive requirements would have had to take place. Certain

permits from the federal Nuclear Regulatory Commis-

sion, the state department of environmental protection,

and the Connecticut siting council would have been re-

quired. Any proposed facility would also have been sub-

ject to regulations and restrictions imposed by “any

town, city or borough,” which would have been subject

to review by the siting council. See Conn. Gen. Stat. Sec-

tion 22a-163n(b). Finally, if these requirements had

3la

been satisfied, eminent domain proceedings would have

to proceed, and the property owner would have to be

compensated. Conn. Gen. Stat. § 22a-1632(b) and (c).

In January, 1992, the governor’s office proposed legis-

lation to rescind the Statutury acquisition of a public

facility for the disposal of low-level radioactive waste in

Connecticut. On May 5, 1992, the legislature repealed the

siting announcement.

DISCUSSION

A. Standard of Review

Motion to Dismiss

The function of a motion to dismiss is “merely to

assess the legal feasibility of the complaint, not to assay

the weight of the evidence which might be offered in

support thereof.” Ryder Energy Distribution v. Merrill

Lynch Commodities, Inc., 743 F.2d 744, 779 (2d Cir.

1984). When deciding a motion to dismiss, the Court

must accept as true the well pleaded allegations of the

complaint. Albright v. Oliver, 510 U.S. 266, 268 (1994).

In addition, the allegations of the complaint should be

construed favorably to the pleader. Scheuer v. Rhodes,

416 U.S. 232, 236 (1973). A complaint should not be

dismissed unless it appears beyond doubt that the plain-

tiff can prove no set of facts in support of his claim

which would entitle him to relief, Conley v. Gibson, 355

U.S. 41, 45-46 (1957).

A motion to dismiss under FRCP 12(b) (1) “challenges

the court’s statutory or constitutional power to adjudi-

cate the case before it.”” 2A James W. Moore et. al.,

Moore’s Federal Practice, P 12.07, at 12-49 (2d ed.

1944). Once the question of jurisdiction is raised, the

burden of establishing subject matter jurisdiction rests on

32a

the party asserting such jurisdiction. Thomson v. Gaskill,

315 US. 442, 446 (1942).

Motion Summary Judgment

A motion for summary judgment will be granted where

there is no genuine issue as to any material fact and it is

clear that the moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). “Only when reasonable minds could not

differ as to the import of the evidence is summary judg-

ment proper.” Bryant v. Maffucct, 923 F. 2d 979, 982

(2d Cir.), cert. denied, 502 U.S. 849 (1991).

The burden is on the moving party to demonstrate the

abesnce of any material factual issue genuinely in dispute.

American International Group, Inc. v. London American

International Corp., 664 F. 2d 348, 351 (2d Cir. 1981).

In determining whether a genuine factual issue exists, the

court must resolve all ambiguities and draw all reasonable

inference against the moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). If a nonmoving

party has failed to make a sufficient showing on an essen-

tial element of his case with respect to which he has the

burden of proof, then summary judgment is appropriate.

Celotex Corp., 477 U.S. at 323. If the nonmoving party

submits evidence which is “merely colorable,” legally

sufficient opposition to the motion for summary judg-

ment is not met. Anderson, 477 U.S. at 249.

B. Analysis

Rooker-Feldman Doctrine

In its motion to dismiss, dependent argues that the

Rooker-Feldman doctrine deprives this Court of federal

jurisdiction. Rooker-Feldman is an abstention doctrine

premised on the proper scope of federal jurisdiction. The

33a

doctrine provides that the lower federal courts lack sub-

ject matter jurisdiction over a case if the exercise of juris-

diction over that case would result in the reversal or

modification of a state court judgment. Hachamouttch v.

DeBuono, 159 F.3d 687, 693 (2d Cir. 1998).

In Rooker, 263 U.S. 413, the U.S. Supreme Court held

that federal district courts lack jurisdiction to review

State court decisions, even if those decisions are errone-

ous. In Feldman, 460 U.S. 462, the Court held that a

United States District Court has no authority to review

final judgments of a state court in judicial proceedings,

which included judgments on claims that were “inextri-

cably intertwined” with the State court’s determinations.

The Second Circuit has interpreted the Supreme

Court’s use of “inextricably intertwined” to mean that

“where a plaintiff had an opportunity to litigate a claim

in a state proceeding (as either a plaintiff or defendant in

that proceeding), subsequent litigation of the claim will

be barred under the Rooker-Feldman doctrine if it would

be barred under the principles of preclusion.” Moccio v.

New York State Office of Court Admin., 95 F. 3d 195

(2d Cir. 1996). Thus this court must decide whether the

Rooker-Feldman doctrine applies to plaintiffs’ claims by

turning to the arguments made in defendant’s motion for

summary judgment that plaintiffs’ claim is barred by the

doctrines of res judicata and collateral estoppel.

Federal courts are required to give a prior state court

decision the same preclusive effect under either res judt-

cata or collateral estoppel that courts of that state would

give to that decision. Kremer v. Chemical Constr. Corp.,

456 U.S. 461, 466 (1982). State law determines whether

a pnor state-court proceeding has any preclusive effect in

a subsequent action pending in federal court. See Fayer v.

Middlebury, 258 F.3d 117, 124 (2d Cir. 2001).

34a

To establish that a claim is barred by the doctrine of

res judicata and obtain summary judgment, a party must

establish that there are no genuine issues of material fact

in relation to each of the following elements: (1) the.

identity of the parties is the same as in the prior action

{or privity is sufficiently established); (2) the same claim,

demand or cause of action is at issue; (3) the judgment in

the prior action was rendered on the merits by a court of

competent jurisdiction; and (4) the parties had the oppor-

tunity to fully and fairly litigate the matter. See Tirozzt

v. Shelby Ins. Co., 50 Conn. App. 680, 686-87, cert.

denied, 247 Conn. 945 (1998).

Under the doctrine of collateral estoppel, the judgment

of a prior suit precludes relitigation of issues actually

litigated and necessary to the outcome of the first action.

Parklane Hoisery Co. v. Shore, 439 U.S. 322, 327 n.5

(1979). A party raising a defense of collateral estoppel

must demonstrate that an issue that is presented in the

second case was fully and fairly litigated. Jackson v. R.G.

Whipple, Inc., 225 Conn. 705, 714-15 (1993). The issue

must have been necessary to the judgment in the first

case. Gladysz v. Planning & Zoning Comm.n,

256 Conn. 249, 261 (2001). If an issue has been derer-

mined, but the judgment is not dependent upon deter-

mination of the issue, the parties may relitigate the

issue in a subsequent action. Delahunty v. Massachusetts

Mutual Life Insurance Company, 236 Conn. 582 (1996).

In this instance, plaintiffs filed the first lawsuit to

comply with an interpretation of a npeness requirement—

for a takings claim as articulated in Willtamson County

Regional Planning Commission v. Hamilton Bank, 473

U.S. 172, 195 (1985). Specifically, plaintiffs cite lan-

guage from Williamson, in which the Supreme Court

stated that if ‘a State provides an adequate procedure for

35a

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 comen-

sation.” Plaintiffs assert that Williamson County means

that a property owner cannot bring a federal claim until

he has litigated his takings claim in the state court using

State procedures and has been denied just compensation.

At present, federal law demarcates no clear approach

to determine the preclusive effect of a previous state

court action instituted by a property owner in order to

Satisfy the ripeness requirement of Williamson County.

In Wilkinson v. Pitkin County Board of Comm ’rs., 142 F.

3d 1319 (10th Cir. 1998), a federal takings claim was

barred from litigation in federal court where the Fifth

Amendment claim was actually raised and litigated

during the state court proceedings. In Fields v. Sarasota

Manatee Airport Authority, 953 F. 2d 1299, 1304 (11th

Cir. 1992), the Eleventh Circuit held that since the fed-

eral claim could have been raised in state court, the fed-

eral claim had been extinguished by the state proceed-

ing. The Ninth Circuit, however, has indicated that the

relevant inquiry is whether the state decision on the state

constitutional claim represented an equivalent determi-

nation for the federal takings claim, so as to invoke the

doctrine of issue preclusion. Dodd v. Hood River County,

59 F. 3d 852 (9th Cir. 1995). Similarly, in Treister v.

City of Miami, 893 F. Supp. 1057, 1067-68 (S.D. Fla.

1992), affirmed, 56 F. 3d 1389 (11th Cir. 1995), a state

court’s decision that was sufficiently parallel to the feder-

al adjudication had preclusive effect on a subsequent

federal takings action in federal court.

In this instance, the Court considers the appropriate

inquiry to be whether the state decision on plaintiff's

Connecticut constitutional claim represents an equiva-

36a

lent determination of a federal Fifth Amendment claim.

In making this determination, the Court reviews whether

the Takings Clause of the Fifth Amendment requires a

broader inquiry than the claim pursuant to the Connecti-

cut Constitution. See Dodd v. Hood River County, 136

F. 3d 1219, 1224 (9th Cir. 1998). If so, then the Fifth

Amendment claim was not fully and fairly adjudicated,

and the issues relevant to Fifth Amendment takings anal-

ysis were not necessary to detemrine the state court deci-

sion.

On appeal to the Connecticut Supreme Court, the

plaintiffs argued that the trial court improperly concluded

that (1) the designation of the plaintiffs’ properties

among the three finalists for acquisition and development

as a disposal facility for low-level radioactive waste was

not a practical confiscation and not an inverse condem-

nation under the state constitution; (2) the defendant’s

conduct did not amount to an inverse condemnation

under the alternative balancing test; and (3) mere govern-

mental planning does not constituee a taking, in the con-

stitutional sense. The Connecticut Supreme Court

affirmed that governmental planning does not, as a

matter of law, constitute a taking under article first, § 11,

of the state constitution, and that defendant’s conduct

constituted planning. Because defendant’s planning did

not constitute a taking, the Court held that it was not

necessary to discuss the plaintiffs’ factual claims of loss

of economic use.

Further, in reaching its conclusion, the Connecticut

Supreme Court stated that it had restricted itself to the

claim concerning the Connecticut Constitution. However,

in what appears a response to plaintiff’s argument that

the Connecticut Constitution does not provide less pro-

37a

tection for individual rights than that furnished by the

Fifth Amendment, the Court noted that:

None of the parties argues that our state constitu-

tion provides different protection for property own-

ers from that afforded by the federal constitution.

Furthermore, we are not aware of any doctrine,

Cases or reason that would compel, in the context of

this case, the treatment of the plaintiffs’ state con-

stitutional claims different than the treatment those

claims would have been given had we been adjudi-

cating the plaintiffs’ claims under the federal con-

stitutional takings jurisprudence. We, therefore,

assume for the purposes of this appeal that article

first, §11, of our state constitution affords the same

protection as that provided under its federal coun-

terpart.

Santini, 251 Conn. at 136 n.20.

The Connecticut Supreme Court went on to reject the

plaintiffs’ contention that existing Connecticut prece-

dent namely Textron, Inc. v. Wood, 167 Conn. 334, 350

(1974) which holds that governmental planning does not

constitute a taking, cannot survive current federal juris-

prudence. In Textron, the Connecticut Supreme Court

held that a substantial interference involving the invasion

of some specific legal interest in the property required

a “definitive indication that the state’s intent to condemn

the property in question has become fixed and irreversi-

ble.” 167 Conn. at 348. The Court explained the two

reasons for requiring a definitive, fixed and irreversible

intention as (1) once the state has reached a final deci-

sion, no one can interfere with the sovereign’s right to

properly exercise its power of eminent domain, and (2)

without such a requirement, both the state and property

owner would be deprived of the capacity to reasonably

38a

gauge their respective rights and effectively plan their

future activities.

In consideration of Santint, the Connecticut Supreme

Court reconciled the holding of Textron with existing

federal jurisprudence as represented in First English

Evangelical Lutheran Church v. Los Angeles County, 482

U.S. 304, 321 (1987). The Court noted that First Eng-

lish states that “depreciation in the value of property”

by reason of preliminary govemment action, which is

consistent with the holding that government planning

cannot constitute a taking.

This Court agrees with the state Supreme Court

that its holding is consistent with federal jurisprudence

relevant to Fifth Amendment takings analysis. Plaintiffs’

claim would not be afforded a broader standard than that

articulated by the Connecticut Supreme Court.

It is well established that a “final decision’? must be

rendered by the government agency prior to the institu-

tion of a Fifth Amendment takings claim. Welliamson

County, 473 U.S. at 186. Williamson County instructs

that a final decision is necessary because the inquiry into

economic impact of the challenged action cannot be

evaluated until the state has ‘‘arrived at a final, definitive

position regarding how it will apply the regulations at

issue to the particular land in question.” Similarly, the

Second Circuit has elaborated that, without a final deci-

sion, a court cannot determine adequately the economic

loss occasioned by the government action. Southview

Associates, LTD. v. Bongartz, 980 F. 2d 84 (1992). A

plaintiff may not satisfy the final decision requirement

where the possibility exists that some use exists that

would enable the plaintiff to derive economic benefit

from the property. See MacDonald, Sommer & Frates v.

County of Yolo, 477 U.S. 340, 352 (1986).

39a

This Court finds the Connecticut Supreme Court’s

standard as to whether government action constitutes a

“fixed and irreversible intention” to be an analogue

to federal law requiring a “final decision,’ Both

standards have the purpose of enabling the court to assess

the rights of the parties relevant to the challenged action.

For purposes of collateral estoppel, the issue necessary to

to the Connecticut Supreme Court’s decision — is ident-

ical to consideration required for the instant federal

takings claim.

In its analysis of defendant’s conduct, the Connecticut

Supreme Court reviewed the facts that the defendants

had yet to select a property as the “ultimate disposal

site”; that further study ‘was necessary before any final

such choice was to be made”; and that there remained

several administrative requirements to be met in order

for “the preferred site finally to be selected for construc-

tion of the disposal facility.” The Court noted further

that no witness who testified regarded the plaintiffs’

property as the final site for the disposal facility. Anal-

ysis of these identical facts would have been required to

determine whether defendant’s conduct constituted a

final decision relevant to the federal takings claim. A-c-

cordingly, the Court finds that the federal takings claim

is inextricably intertwined with the Connecticut Supreme

Court’s judgment, and therefore barred under the Rook-

er-Feldman doctrine?.

1 The Cour notes that the Connecticut Supreme Court even

uses “final decision” interchangeably with “fixed and irreversible

intention,” See Santini, 251 Conn. at 142.

*Plaintiffs argue that the Rooker-Feldman doctrine should

not apply in light of England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411 (1964), wherein the Supreme Court held

[footnote continued]

40a

The Court is unpersuaded by plaintiffs’ argument that

either collateral estoppel or Rooker-Feldman is inappli-

cable in light of the state court’s failure to consider the

tests set forth in Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1019 (1992) and Penn Central Transpor-

tation Co. v. City of New York, 438 U.S. 104, 124

(1978). As discussed previously, the Court must find that

defendants’ conduct constituted a final decision prior to

measuring the economic impact of the defendant’s

action as required by Lucas and Penn Central. Accord-

ingly, this Court will grant the defendant’s motion to dis-

miss on the basis of the Rooker-Feldman doctrine. In the

event that Rooker-Feldman does not bar this claim,

summary judgment is appropriate on the basis of collat-

eral estoppel.

Finally, even if collateral estoppel and Rooker-Feld-

man do not apply, summary judgment in defendant's

favor is appropriate due to the lack of a final decision

as required by Williamson County. The defendant’s selec-

tion of plaintiffs’ property as one of three sites proposed

for radioactive disposal left open the possibility that

plaintiffs’ property would not ultimately be selected as

the radioactive disposal site.

that a litigant who commenced a federal claim in federal court

but was relegated to state court could file with a federal court a

reservation of intent to pursue the federal claim later. However,

plaintiff has not persuaded this Court that such a reservation is

applicable to the instant case.

4la

CONCLUSION

For the foregoing reasons, the defendant’. motion to

dismiss [document #18] is GRANTED; the defendant’s

for summary [document #20] is GRANTED; and plain-

tiffs’ motion for summary judgment [document #23] is

DENIED. The clerk is instructed to enter judgment in

favor of the defendant and to close this case.

SO ORDERED.

/s/ Warren W. Eginton

Warren W. Eginton, Senior U.S. District Judge

Dated at Bridgeport, Connecticut this 27th day of

August, 2002.

42a

APPENDIX C

[Filed APR 2 2004]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Thurgood Marshall United States Courthouse

40 Foley Square

New York, NY 10007

Roseann B. MacKechnie

Clerk

Docket Number: 02-9150-cv

Short Title: Santini v. Connecticut Mgmt Svc

DC Docket Number: 01-cv-563

DC: DISTRICT OF CONNECTICUT

(NE

DC Judge: Honorable Warren Eginton

At a stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on

the 2nd day of April two thousand four.

Present:

Hon. Jon O. Newman,

Hon. Ralph K. Winter,

Hon. Barrington D. Parker,

CIRCUIT JUDGES,

43a

EVANDRO S. SANTINI and SANTINI HOMES, INC.,

Plaintiffs - Appellants,

Vv. Docket No. 02-9150

CONNECTICUT HAZARDOUS WASTE MANAGE.

MENT SERVICE,

Defendant - Appellee.

A petition for panel rehearing having been filed herein

by Appellants EVANDRO S. SANTINI and SANTINI

HOMES, INC.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

For the Court,

Roseann B. MacKechnie, Clerk

By: /s/ Arthur M. Heller

Arthur M. Heller

Motions Staff Attorney

44a

APPENDIX D

EXCERPT, TRIAL COURT TESTIMONY

ON CROSS-EXAMINATION BY SANTINI’S COUNSEL

OF SUSAN SHIMELMAN, UNDERSECRETARY OF

THE CONNECTICUT OFFICE OF

POLICY AND MANAGEMENT

FEBRUARY 27, 1998

(stipulated record at A-1835)

Santini counsel:

Ms. Shimelman:

Santini counsel:

Ms. Shimelman:

Santini counsel:

Ms. Shimelman:

Santini counsel:

Ms. Shimelman:

By 1991, the [site selection/condemna-

tion] process had been going on for

some 11 years, had it not?

Correct.

It was near the end of the process, very

close to the acquisition step?

Correct.

And it wasn’t prelimin at that

Pp ary

point; it wasn’t tentative, correct?

Correct.

In your words, the service [sic] had no

alternative but to proceed at that

point?

Correct.

45a

APPENDIX E

EXCERPT, TRIAL COURT TESTIMONY

ON CROSS-EXAMINATION BY SANTINI’S COUNSEL

OF RONALD GINGERICH, EXECUTIVE DIRECTOR,

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE

FEBRUARY 25, 1998

(stipulated record at A-1525 to A-1 527)

Q. Now, Mr. Santoro [Service’s counsel] in some of

his questions referred to” other permits, contingencies

that would have needed to have been satisfied before an

actual facility was built. Can you — are you able to give

us a relatively complete list of what those other permits

are?

A. Yes, Iam.

Q. Go ahead.

A. The first would be a license from the Nuclear

Regulatory Commission; the second would be a permit

or permits from the Department of Environmental Pro-

tection; the third would be a certificate of public safety

and need from the Connecticut siting council; and

fourth would be approvals from local planning and zon-

ing and wetlands agencies. However, there is a provi-

sion in state law whereby the siting council can over-

ride a denial of approval by those local agencies.

Q. [It] was the state that was actually going to do

the acquisition?

A. The Department of Public Works is responsible for

acquiring the site.

46a

Q. [W] ould the Department of Public Works have

acquired the site and then the agency would have pro-

ceeded with these other permits and approvals, or would

it have been the other way around?

A. I don’t know.

Q. Did that not come up in the process?

A. It was left up to the Department of Public Works

how they would go about acquiring the site. They’re

limited in statute to acquiring the one we selected, but

when they actually acquired it, it was left to their dis-

cretion.

47a

APPENDIX F

EXCERPT, TRIAL COURT TESTIMONY ON

CROSS-EXAMINATION BY SANTINI’S COUNSEL

OF DR. WILLIAM KINNARD, EXPERT REAL ESTATE

APPRAISER CALLED BY CONNECTICUT

HAZARDOUS WASTE MANAGEMENT SERVICE

MARCH 5, 1998

(stipulated record at A-2166 to A-2169)

Q. [Your] discounted cashflow analysis applying the

fifteen percent discount rate extends that over a full

twenty-four months with no assumption of any revenue

in between?

A. No assumption of any revenue, that is correct.

Q. You also testified that during the designation

period Elridge Estates had some value, do you recall

that?

A. Yes, sir.

Q. But you said on page sixty-eight of your report that

there could be no sales, no development and essentially

no value for its highest and best use, single family resi-

dential sales, is that correct?

A. I’m on page fifty-eight.

Q. Sixty-eight.

A. Sixty eight? Sorry. It does — I do say no sales —

no sales could reasonably have expected to have occurred

and no development activity on the Pinney Street prop-

erty could reasonably have been expected to occur, that

is correct. I didn’t say anything about no value, however.

ae

48a

Q. You also mentioned recreational use. Do you know

whether the zoning would allow any type of revenue pro-

ducing recreational use on Elridge Estates?

A. I do not.

* * *

Q. Now, overall, Dr. Kinnard, in your report is there

anything, any calculation of rental value, recreational

value, any value at all for these properties between June

1991 and June 1992?

A. No, sir, there is not.