# Opposition Brief — Santini v. Connecticut Hazardous Waste Management Service

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 875

## Text

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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PARTIES TO THE PROCEEDING ......cssscccssssssssescssssssescce i
TABLE OF AUTHORITIES |.....scossssssssssssssssssesesssense iv
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

12-A

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.

13-A

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.

14-A

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.

15-A-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0926%3A2. Public record. Not legal advice.