# Petition for Writ of Certiorari — Santini v. Connecticut Hazardous Waste Management Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0926%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 875 ## Text 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 su [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0926%3A1. Public record. Not legal advice.