Opposition Brief — Santini v. Connecticut Hazardous Waste Management Service

4 — ee iiteein

No. 04-142

In The etre te CLERK

Supreme Court Of The United States

+

EVANDRO S. SANTINI, et al.,

Petitioners,

v.

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Respondent.

¢

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

¢

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

+ -

RICHARD BLUMENTHAL

ATTORNEY GENERAL

OF CONNECTICUT

* ROBERT D. SNOOK

Assistant Attorney General

Office of the Attorney General

55 Elm Street, P.O. Box 120

Hartford, CT 06141-0120

* Counsel of Record (860) 808-5020

QUESTION PRESENTED

Whether the courts below correctly entered

summary judgment against Petitioners’ takings claim, when

the property in question was never taken or occupied,

physically or legally, and the courts found as a matter of

fact that the property retained value to Petitioners

throughout the eleven months when a possible future taking

was under public consideration?

PARTIES TO THE PROCEEDING

The parties to this case are:

Plaintiffs/Petitioners: Evandro S. Santini

Alfred Drive

Tolland, CT 06084

Santini Homes, Inc.

1031 Hartford Turnpike

Vernon, CT 06066-4407

Defendant/Respondent: Connecticut Hazardous Waste

Management Service

100 Constitution Plaza

Hartford, CT 06103

TABLE OF CONTENTS

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COUNTER-STATEMENT OF THE CASE ooocceecccssssecccoee

REASONS FOR DENIAL OF THE PETITION................ 3

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TABLE OF AUTHORITIES

Federal Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980) ..........00+ 6, 7

Danforth v. United States, 308 U.S. 271 (1939)... 6

First English Evangelical Lutheran Church of

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

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

ee i casitichicin csncatinilaaieiasieidalptesnidlincsdinldsoimiahabiminbicabiniatdaoiee 7

Penn Central Transportation Co. v. New York, 438

FR BIS Go caine eckisnseniseiscicisasiasnninicaishdapasnasinninia tannsindonanake 7

Santini v. Conn. Hazardous Waste Mgmt. Serv., 342

Fe Se eID sciitsanncininibiionalaiana ye eS

Santini v. Conn. Hazardous Waste Mgmt. Serv., No.

3:01cv563 (D. Conn. Aug. 27, 2002)..............seeeeeeeeeeee 3

State Cases

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

No. CV 94 053 8646S, 1998 WL 422166 (Conn.

UNER. FURY 35), FIND cacresicnisinssemenictentamanianiniaaadanes »

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

Comma. 121, 739 A.28 GO C18 a) ncnvnnsssesrcnvinsinnrsuneese y ie

Statutes

Conn. Gen. Stat. §22a-163w(b)(c)(1995) 0.0... eeeeeeeeee 5

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8 Ne Serr | ys eM

IN THE

SUPREME COURT OF THE UNITED STATES

EVANDRO S. SANTINI, et al.,

Petitioners,

V.

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Respondent.

OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

COUNTER-STATEMENT OF THE CASE

On June 10, 1991, the Connecticut Hazardous

Waste Management Service (“Service”) announced that a

parcel of land owned by Evandro S. Santini and Santini

Homes, Inc. (hereinafter collectively known as the

“Petitioners” or “Santini”) was one of the three sites being

considered for potential acquisition for a disposal facility

for low-level radioactive waste. Eleven months later, the

Service completely ended all consideration of the

possibility of taking Petitioners’ land. Petitioners sued,

claiming that the June 10" announcement constituted a

temporary taking of their property under Article First,

Section 11 of the Connecticut Constitution.

After a trial on the merits, the trial court held, as a

matter of law, that the Service had engaged only in

planning and preparatory activities which did not constitute

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

No. CV 94 053 8646S, 1998 WL 422166 at *5 (Conn.

Super. July 13, 1998). Furthermore, the trial court found,

as a matter of fact, that even if the Service’s activities went

beyond planning, a taking did not occur because the

Petitioners retained use and value in their property. /d.'

Petitioners sought review in the Connecticut

Supreme Court, which upheld the decision of the trial

court. Santini v. Conn. Hazardous Waste Mgmt. Serv., 251

Conn. 121, 739 A.2d 680 (1999). Petitioners

unsuccessfully sought a writ of certiorari to this Court. 520

U.S. 1225 (2000).

Santini then filed a complaint in federal district

court alleging a taking under the Fifth Amendment to the

United States Constitution. The Service moved to dismiss

on procedural grounds, primarily lack of jurisdiction under

the Rooker-Feldman doctrine and because the state court

decisions barred a second action in federal court under the

doctrines of res judicata and collateral estoppel. The

Service also moved for summary judgment on the merits

because the uncontroverted facts showed that no taking had

occurred. The district court granted both of the Service’s

' The Petition implies that the land in question retained no

value after the announcement. Petitics, yp. 3, 4, 9-11,

fns. 1, 2, 8, and 9. This claim was rejected by not only

the trial court, but also the state supreme court and the

Second Circuit, which all agreed that Santini’s property

retained use and value throughout the time in question.

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

Conn. at 135, n. 19; Santini v. Conn. Hazardous Waste

Mem. Serv., 342 F.3d 118, 131 (2003).

2

a

eS RENCE ON

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

No. 3:01cv563 (D. Conn. Aug. 27, 2002) (Unpublished

opinion attached hereto.)

Santini appealed to the United States Court of

Appeals for the Second Circuit. The Court of Appeals

concluded, contrary to the district court, that res judicata,

collateral estoppel and the Rooker-Feldman doctrine did

not bar the action. Nevertheless, the court upheld the

determination of the district court on the merits that no

taking had occurred and that entry of summary judgment

for the Service was appropriate. Santini v. Conn.

Hazardous Waste Mgmt. Serv., 342 F.3d 118, 130-31

(2003). The Second Circuit subsequently denied a

rehearing petition and Santini filed this timely petition for

certiorari.

REASONS FOR DENIAL OF THE PETITION

SUMMARY

This petition for a writ of certiorari should be

denied because, as every court that has considered this case

has concluded, the “fact that Santini’s taking claim is based

on nothing more than the Service’s 1991 announcement —

perhaps the prototypical precondemnation governmental

activity — dooms the claim on its merits.” Santini v. Conn.

Hazardous Waste Mgmt. Serv., 342 F.3d 118, 130 (2003),

see also, Santini v. Conn. Hazardous Waste Mem. Serv.,

251 Conn. 121, 140, 144, 739 A.2d 680 (1999); Santini v.

Conn. Hazardous Waste Mgmt. Serv., No. CV 94 053

8646S, 1998 WL 422166 at *5 (Conn. Super. July 13,

1998). In fact, no taking occurred in this case because the

Service’s actions never proceeded beyond the planning

stage. The Service never acquired the Petitioner’s property,

never physically occupied the site, never obtained any of

the necessary permits to build the facility, and never

3

completed (in fact barely began) the site characterization

necessary to determine if Santini’s property, or any of the

other potential sites, was even suitable for a disposal

facility. Thus, the government never did anything more

than begin the study and planning necessary for a project

that was quickly abandoned. -Further, the state trial court

found, as a matter of fact, that Santini’s property never lost

all use or value. The state supreme court, the federal

district court and the Court of Appeals agreed that the

property retained value. The factual record is clear that no

taking under the Constitution ever occurred.

Furthermore, this case presents no new, novel or

unresolved issues regarding takings. This Court has long

held that public planning pre-condemnation activity is not,

by itself, a taking or acquisition of property. The decision

below is fully consistent with this well-established law and

it does not conflict with the decision of any other federal

courts of appeals.

ARGUMENT

The obvious central flaw in Petitioners’ case is that

the only government action complained of is the 1991

announcement by the Service that Petitioners’ land was one

of three sites it was considering for possible future

acquisition for a low-level radioactive waste disposal

facility. As the courts below, both state and federal, have

found:

Even if Santini’s property had been

designated the preferred 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,

4

and the Connecticut siting council, as wel!

as eminent domain proceedings, see Conn.

Gen. Stat. §22a-163w(b)(c)(1995), would

have been required.

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

118, 122 & n. 3 (2003), Santini v. Conn. Hazardous Waste

Mgmt. Serv., 251 Conn. 121, 125-26 & n. 6, 739 A.2d 680

(1999); Santini v. Conn. Hazardous Waste Mgmt. Serv.,

1998 WL 422166 (Conn. Super. 1998).

Ultimately, no site was chosen and none of the

necessary state or federal permits was ever obtained. The

Service not only never took the Petitioners’ property, it

never went beyond the planning or pre-condemnation phase

of its project before, in less that a year, it abandoned the

entire project.

This Court has explicitly determined that

governmental planning activities of this nature do not

constitute takings. The Second Circuit quoted directly

from this Court’s controlling decisions as follows:

“Appellants also claim that the city’s pre-

condemnation activities constitute a taking.

The State Supreme 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 taking. Even if the appellants’ ability to

sell their property was limited during the

pendency of the condemnation proceeding,

the appellants were free to sell or develop

their property when the proceedings ended.

Mere fluctuations in value during the

5

re

process of governmental decision making,

absent extraordinary delay, are incidents of

ownership. They cannot 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 constitute a taking). The Supreme Court

later cited Agins and Danforth with approval

for the proposition that “depreciation 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).

Santini, 342 F.3d at 130-131. The Second Circuit

continued:

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 condemn 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

6

Protection, and the Connecticut siting

council.

Id. at 131.

Based on these facts, the district court arid the Court

of Appeals found that the Service was merely engaged in

necessary planning and study preparatory to a potential

acquisition of property that never occurred and that, under

the controlling precedents of Agins and First English, no

taking occurred.

Finally, the Second Circuit acknowledged the

Petitioners’ apparent claim that Agins, Danforth, and First

English somehow do not control this case, and that the

analysis under Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) or Penn Central Transportation Co.

v. New York, 438 U.S. 104 (1978) is required. The court

accurately noted that Lucas requires a showing that the

siting consideration announcement deprived Santini of all

economically viable use of his property and that Santini

had not, as a matter of fact, made that showing as the

properties “did have use and value after the notice.”

Santini, supra. at 131. The Court of Appeals also properly

rejected the Penn Central argument as the government’s

action here, a mere announcement of consideration for

possible future acquisition, was obviously not of the

character which could constitute a taking. /d. at 132.

CONCLUSION

This case involves a routine application of

controlling precedent to facts which the four courts below

have all agreed upon. The Second Circuit correctly

determined that the Service’s announcement that it was

considering three sites for suitability for potential future

condemnation, an action the court called “perhaps the

prototypical pre-condemnation governmental activity,” did

not constitute a taking.

Respectfully submitted,

CONNECTICUT HAZARDOUS

WASTE MANAGEMENT

SERVICE

RICHARD BLUMENTHAL

ATTORNEY GENERAL

*ROBERT D. SNOOK

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

Tel. No. (860) 808-5020

Fax: 860 808-5347

*Counsel of Record

= An ee em eR ae “etme, Gy > 08 eee ot

No. 04-142

In The

Supreme Court Of The United States

EVANDRO S. SANTINI, et al.,

Petitioners,

V.

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Respondent.

oo

ON PETITION FORA WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

~

APPENDIX

+

APPENDIX TABLE OF CONTENTS

Santini v. Conn. Hazardous Waste Mgmt

Service Serv., No. 3:01cv563. (D. Conn.

Aug. 27, 2002) (Unpublished opinion) ..................0006 2-A

1-A

[Filed Aug 27 2002]

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

No. 3:01cv563 (WWE)

EVANDRO S. SANTII and

SANTINI HOMES, INC.,

Plaintiffs,

v.

CONNECTICUT HAZARDOUS WASTE

MANAGEMENT SERVICE,

Defendant.

RULING ON MOTION TO DISMISS AND

CROSS-MOTIONS 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 Superior Court and

the Connecticut Supreme Court. In that action, the

Connecticut Supreme Court affirmed the Superior Court's

holding that no constitutional taking had occurred. Santini

v Connecticut Hazardous Waste Management Service, 251

Conn. 121 (1999).

2-A

The defendant has filed a motion to dismiss. The

parties 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 doctrine of federal jurisdiction formulated in Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of

Columbia 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

collateral estoppel and on the merits of the claim.

BACKGROUND

The parties have submitted affidavits, exhibits and

Local Rule 9 statements of facts, which reveal the

following undisputed facts. These undisputed facts are also

reflected in Santini v Connecticut Hazardous Waste

Management 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

governmental agency established pursuant to Connecticut

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

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

radioactive waste.

In 1985, the plaintiffs acquired land in Ellington,

Connecticut, 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.

3-A

ee

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 Ellridge Estates. From 1989 through the spring of 1991,

construction of Ellridge Estates proceeded slowly due to

the growing regional real estate recession. As of June,

1991, plaintiffs had, inter alia, subdivision approval for 16

homes; and an equity investment in 75 acres, subdivision

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’ property

was depicted on the front page of The Hartford Courant

alongside the international symbol for radioactivity.

No site was actually ever selected as the preferred

site. After selection of a preferred site, additional |

administrative requirements would have had to take place.

Certain permits from the federal Nuclear Regulatory |

Commission, the state department of environmental ‘

protection, and the Connecticut siting council would have

been required. Any proposed facility would also have been

subject to regulations and restrictions imposed by "any

town, city or borough," which would have been subject to

2 ato

4-A

review by the siting council. See Conn. Gen. Stat. Section

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

_ Satisfied, eminent domain proceedings would have to

proceed, and the property owner would have to be

compensated. Conn. Gen. Stat. § 22a-163w(b) and (c).

In January, 1992, the governor's office proposed

legislation to rescind the statutory 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., 748 F.2d 774, 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.5. 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 plaintiff 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

adjudicate the case before it." 2A James W. Moore et. al.,

5-A

Moore's Federal Practice, P 12.07, at 12-49 (2d ed. 1994).

Once the question of jurisdiction is raised, the burden of

establishing subject matter jurisdiction rests on the party

asserting such jurisdiction. Thomson v. Gaskill, 315 U.S.

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 judgment proper.’

Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert.

denied, 502 U.S. 849 (1991).

The burden is on the moving party to demonstrate

the absence 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 inferences against the moving party. Anderson

v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986). Ifa

nonmoving party has failed to make a sufficient showing

on an essential 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 judgment is not met. Anderson, 477 U.S. at 249.

6-A

a RS EA To ENRON ROR A 8 ome

B. Analysis

Rooker-Feldman Doctrine

In its motion to dismiss, defendant 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

doctrine provides that the lower federal courts lack subject

matter jurisdiction over a case if the exercise of jurisdiction

over that case would result in the reversal or modification

of a state court judgment. Hachamovitch 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 erroneous.

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 "inextricably

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

7-A

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

judicata 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

prior 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).

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 opportunity to fully

and fairly litigate the matter. See Tirozzi v. Shelby Ins.

Co., 50 Conn. App. 680, 686-87, cert. denied, 247 Conn.

945 (1998).

Se te ee ae ee Oe ee

Rt SRN Gace RN Se ae ee ct

Under the doctrine of collateral estoppel, the

judgment of prior suit precludes relitigation of issues

actually litigated and necessary to the outcome of the first

action. Parklane Hosiery 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,

8-A

a

261 (2001). If an issue has been determined, but the

judgment is not dependent upon determination 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 ripeness requirement for

a takings claim as articulated in Williamson County

Regional Planning Commission v. Hamilton Bank, 473

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

from Williamson, in which the Supreme Court stated that if

"a State provides an adequate procedure for seeking just

compensation, the property owner cannot claim a violation

of the Just Compensation Clause until it has used the

procedure and has been denied just compensation."

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 federal claim could

have been raised in state court, the federtigclaim had been

extinguished by the state proceeding. The Ninth Circuit,

however, has indicated that the relevant inquiry is whether

9-A

the state decision on the state constitutional claim

represented an equivalent determination 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 federal adjudication had

preclusive effect on a subsequent federal takings action in

federal court.

In this instance, the Court considers the appropriate

inquiry to be whether the state decision on plaintiffs’

Connecticut constitutional claim represents an equivalent

determination of a federal Fifth Amendment claim. In

making this determination, the Court reviews whether the

Takings Clause of the Fifth Amendment requires a broader

inquiry than the claim pursuant to the Connecticut

Constitution. See Dodd v. Hood River County, 136 F. 3d

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

Amendment claim was not fully and fairly adjudicated, and

the issues relevant to Fifth Amendment takings analysis

were not necessary to determine the state court decision.

On appeal to the Connecticut Supreme Court, the

plaintiffs argued that the trial court improperly concluded

that (1) the designation of the plaintiffs’ properties among

the three finalists for acquisition and development as a

disposal facility for low-level radioactive waste was not a

practical confiscation and not an inverse condemnation

under the state constitution; (2) the defendant's conduct did

not amount to an inverse condemnation under the

alternative balancing test; and (3) mere governmental

planning does not constitute a taking, in the constitutional

sense. The Connecticut Supreme Court affirmed that

10-A

governmental planning does not, as a matter of law,

constitute a taking under article first, § 11, of the state

constitution, and that defendant's conduct constituted

planning. Because defendant's planning did not constitute a

taking, the Court held that it was not necessary to discuss

the plaintiffs' factual claims of loss of economic use.

Further, in reaching its conclusion, the Connecticut

Supreme Court stated that it had restricted itself to the

claim concerning the Connecticut Constitution. However,

in what appears a response to plaintiff s argument that the

Connecticut Constitution does not provide less protection

for individual rights than that furnished by the Fifth

Amendment, the Court noted that:

None of the parties argues that our state

constitution provides different protection for

property owners from that afforded by the

federal constitution. Furthermore, we are

not aware of any doctrine, cases or reason

that would compel, in the context of this

case, the treatment of the plaintiffs’ state

constitutional claims different than the

treatment those claims would have been

given had we been adjudicating the

plaintiffs' claims under the federal

constitutional takings jurisprudence. We,

therefore, assume for the purposes of this

appeal that article first, § 11, of our state

constitution affords the same protection as

that provided under its federal counterpart.

Santini, 251 Conn. at 136 n.20.

The Connecticut Supreme Court went on to reject

the plaintiffs’ contention that existing Connecticut

precedent, namely Textron. Inc. v. Wood, 167 Conn. 334,

350 (1974) which holds that governmental planning does

not constitute a taking, cannot survive current federal

jurisprudence. In Textron, the Connecticut Supreme Court

held that a substantial interference involving the invasion of

some specific legal interest in the property required a

"definitive indication that the state's intent to condemn the

property in question has become fixed and irreversible."

167 Conn. at 348. The Court explained the two reasons for

requirilig a definitive, fixed and irreversible intention as (1)

once the state has reached a final decision; no one can

interfere with the sovereign's nght to properly exercise its

power of eminent domain, and (2) without such a

requirement, both the state and property owner would be

deprived of the capacity to reasonably gauge their

respective rights and effectively plan their future activities.

In consideration of Santini, the Connecticut

Supreme Court reconciled the holding of Textron with

existing federal jurisprudence as represented in First

English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304, 321 (1987). The court noted that

First English states that "depreciation in the value of

property” by reason of preliminary government action,

which is consistent with the holding that government

planning cannot constitute a taking.

This Court agrees with the state Supreme Court that

its holding is consistent with federal jurisprudence relevant

to Fifth Amendment takings analysis. Plaintiffs’ claim

would not be afforded a broader standard than that

articulated by the Connecticut Supreme Court.

ee Oe ee

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It is well established that a "final decision" must be

rendered by the government agency prior to the institution

of a Fifth Amendment takings claim. Williamson County,

473 U.S. at 186. Williamson County instructs that a final

decision is necessary because the inquiry into economic

impact of the challenged action cannot be evaluated until

the state has "arrived at a final, definitive position

regarding how it will apply the regulations at issue to the

particular land in question." Similarly, the Second Circuit

has elaborated that, without a final decision, a court cannot

determine adequately the economic loss occasioned by the

government action. Southview Associates, LTD. v.

Bongartz, 980 F. 2d 84 (1992). A plaintiff may not satisfy

the final decision requirement where the possibility exists

that some use exists that would enable the plaintiff to

derive economic benefit from the property. See

MacDonald, Sommer & Frates v. County of Yolo, 477 U.S.

340, 352 (1986).

This Court finds the Connecticut Supreme Court's

standard as to whether government action constitutes a

"fixed and irreversible intention" to be an analogue to

federal law requiring a "final decision."* Both standards

have the purpose of enabling the court to assess the rights

of the parties relevant to the challenged action. For

purposes of collateral estoppel, the issue necessary to the

Connecticut Supreme Court's decision — the extent or

> The Court notes that the Connecticut Supreme Court

even uses "final decision" interchangeably with "fixed

and irreversible intention." See Santini, 251 Conn. at

142.

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finality of the defendant's action — is identical to

consideration required for the instant federal takings claim.

In its analysis of defendant's conduct, the

Connecticut Supreme Court reviewed the facts that the

defendants had yet to select a property as the "ultimate

disposal site"; that further study "was necessary before any

final such choice was to be made"; and that there remained

several administrative requirements to be met in order for

"the preferred site finally to be selected for construction of

the disposal facility.". The Court noted further that no

witness who testified regarded the plaintiffs' property as the

final site for the disposal facility. Analysis of these

identical facts would have been required to determine

whether defendant's conduct constituted a final decision

relevant to the federal takings claim. Accordingly, the

Court finds that the federal takings claim is inextricably

intertwined with the Connecticut Supreme Courts

judgment, and therefore barred under the Rooker-Feldman

doctrine’.

The Court is unpersuaded by plaintiffs' argument

that either collateral estoppel or Rooker-Feldman is

inapplicable in light of the state court's failure to consider

the tests set forth in Lucas v. South Carolina Coastal

> Plaintiffs argue that the Rooker-Feldman doctrine

should not apply in light of England v. Louisiana State

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

' wherein the Supreme Court held that a litigant who

commenced a federal claim in federal court but was

relegated to state court could file with a federal court a

reservation of intent to pursue the federal claim later.

However, plaintiff has not persuaded this Court that

such a reservation is applicable to the instant case.

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Council, 505 U.S. 1003, 1019 (1992) and Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 124

(1978). As discussed previously, the Court must find that

defendants’ conduct constituted a final decision prior to

measuring the economic impact of the defendant's action as

required by Lucas and Penn Central. Accordingly, this

Court will grant the defendant's motion to dismiss on the

basis of the Rooker-Feldman doctrine. In the event that

Rooker-Feldman does not bar this claim, summary

judgment is appropriate on the basis of collateral estoppel.

Finally, even if collateral estoppel and Rooker-

Feldman do not apply, summary judgment in defendant's

favor is appropriate due to the lack of a final decision as

required by Williamson County. The defendant's selection

of plaintiffs’ property as one of three sites proposed for

radioactive disposal left open the possibility that plaintiffs’

property would not ultimately be selected as the radioactive

disposal site.

CONCLUSION

For the foregoing reasons, the defendant's motion to

dismiss [document #18] is GRANTED; the defendant's for

summary [document #20] is GRANTED; and plaintiffs’

motion for summary judgment [document #23] is DENIED.

The clerk is instructed to enter judgment in favor of the

defendant and to close this case.

SO ORDERED.

/s/ Warren W. Eginton

Warren W. Eginton, Senior U.S. District Judge

Dated at Bridgeport, Connecticut this 27th day

of August, 2002.

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