Amicus Curiae Brief — Agripost, LLC v. Miami-Dade County (No. 08-567)

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No. 08-567 NOV 2 4 2008

UPHCE OF THE CLERK

In The

Supreme Court of the Gnited States

AGRIPOST, LLC, et al.,

Petitioners,

Vv.

MIAMI-DADE COUNTY, FLORIDA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF HOME BUILDERS AND

FRANKLIN P. KOTTSCHADE

IN SUPPORT OF PETITIONERS

Duane J. Desiderio*

Thomas J. Ward

Nationa! Association of

Home Builders

1201 15" Street, N.W.

Washington, D.C. 20005

(202) 866-8200

* Counsel of Record

November 21, 2008 Counsel for Amici Curiae

Becker Gallagher + Cincinnati, OH - Washington, D.C. - 800.890.5001

TABLE OF CONTENTS

INTERESTS OF THE AMICI CURIAE............0.0...... 1

FIG FIIBSOS oisninsaniesteiscictipiininiaiinea an 4

I. THE COURT SHOULD GRANT CERTIORARI

IN THIS CASE FOR THE SAME REASONS

THAT IT SHOULD ACCEPT REVIEW IN

BRAUN V. ANN ARBOR TOWNSHIP,

PD, CEERI cc vesinanniieninonsaenisdeetlioneotaesnlesnes seal taaneuipiaan tines 4

A. Conflict Between Williamson and San Remo

on Subsequent Versus Concurrent Takings

CS ic cc 6

B. Conflict Between Williamson and City of

Chicago, on Removal Jurisdiction .................. 9

C. Conflict on Application of State-Litigation

Rule to Other Constitutional Claims ........... 12

If. THIS CASE SQUARELY QUESTIONS THE

VALIDITY OF THE STATE-LITIGATION

Is iocietkecshatasthecemaelas enceicacoaam en ....16

CONCLUSION ............. +nsnaemadistiiemeeelieenaaaaaeaan 19

nl

TABLE OF AUTHORITIES

| Page(s)

Cases

Agripost, LLC v. Miami-Dade County, 525 F.3d

ER A ID: cuidwcondelo'en'aebciiwesinuiabeonabwtans 16,17

Agripost, Inc. v. Miami-Dade County, 195 F.3d

1225, (11th Cir. 1999), cert. denied, 531 U.S. 815

ae en Re +)

Asociacion de Subscripcion Conjunta del Seguro de

Responsabilidad Obligatorio, v. Flores Galarza,

ge PRET Bo: >, nee: 5

Bateman v. City of W. Bountiful, 89 F.3d 704

Sa aS I re a 14

Border Bus. Park, Inc. v. City of San Diego,

49 Cal. Rptr. 3d 259 (Cal. Ct. App. 2007),

ont. denied, 127 S. Ct. 22860 @0e7)........................ 18

Brubaker v. E. Hempfield Twp., 234 Fed. Appx.

I 5c Lssarsupsnincwaecudchecunsesebwosdvecaveoede 5

City of Chicago v. Intl Coll. of Surgeons,

Me, BU COED ociccsccceeccccsacsececoensavess 9, 10, 11, 12

City of Marion v. Howard, 855 N.E. 2d 994 (nd.

2006), cert. denied, 126 S. Ct. 2358 (2006)............ 18

City of Monterey v. Del Monte Dunes, 526 U.S.

SL AER Ree NOOR ELAN Ss pee Mr Ay Peele cr 18

County Concrete Corp. v. Town of Roxbury, 442

I ME SAE, DIGS ons cicccsnnssnsessnssccsnssdnvcscesses m

in

TABLE OF AUTHORITIES (cont.)

Page(s)

Del-Pratrie Stock Farm, Inc. v. County of Walworth,

572 F.Supp.2d 1031 (E.D. Wis. 2008)

Dolan v. City of Tigard, 512 U.S. 374 (1994)

First English Evangelical Lutheran Church of

Glendale v. Los Angeles, 482 U.S. 304 (1987)

Forseth v. Vill. of Sussex, 199 F.3d 363

(7th Cir. 2000)

Front Royal and Warren County Indus. Park v.

Town of Front Royal, 135 F.3d 275 (4th Cir.

Henry v. Jefferson County Planning Comm'n,

34 Fed. Appx. 92 4th Cir. 2002) ............................. 5

Hillsboro Props. et al. v. City of Rohnert Park et al.,

41 Cal. Rptr. 3d 441 (Cal. Ct. App. 2006),

cert. denied, 127 S. Ct. 836 (2006)

Intl Coll. of Surgeons v. City of Chicago, 153 F.3d

356 (7th Cir. 1998)

Johnson v. City of Shorewood, 2008 WI. 434680

(Minn. Ct. App. 2008), cert. denied, 129 S. Ct. 28]

Koscielski v. City of Minneapolis, 435 F.3d 898

(8th Cir. 2006)

iV

TABLE OF AUTHORITIES (cont.)

Page(s)

Kottschade v. City of Rochester, 319 F.3d 1038

(8th Cir.), cert. denied, 540 U.S. 825 (2003). ......5, 6

McKenzie v. City of White Hall, 112 F.3d 313

(8th Cir. 1997)

McNamara v. City of Rittman, 473 F.3d 633 (6th

Cir. 2007), cert. dented, 128 S. Ct. 67 (2007) 18

Miller v. California, 413 U.S. 15 (1978)...00000.0000002... 19

Ochoa Realty Corp. v. Faria, 815 F.2d 812

(1st Cir. 1987)

Peters v. Fair, 427 F.3d 1035 (6th Cir. 2005)

Peters v. Vill. of Clifton, 498 F.3d 727 (7th Cir.

2007), cert. denied, 128 S. Ct. 1472 (2008)

Rockstead v. City of Crystal Lake, 486 F.3d 963

(7th Cir. 2007), cert. denied, 128 S. Ct. 415

Rocky Mountain Materials & Asphalt, Inc. v. Bd. of

County Comm’rs of El Paso County,

972 F.2d 309 (10th Cir. 1992)

Samaad v. City of Dallas, 940 F.2d 925

(5th Cir. 1991)

TABLE OF AUTHORITIES (cont.)

Page(s)

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

Francisco, 545 U.S. 323 (2005)

Sandy Creek Investors, Ltd. v. City of Jonestown,

325 F.3d 623 (5th Cir. 2003)

Sinclair Oil Corp. v. County of Santa Barbara,

96 F.3d 401 (9th Cir. 1996), cert. denied,

523 U.S. 1059 (1998)

Sinaloa Lake Owners Ass'n. v. City of Simi Valley,

882 F.2d 1398 (9th Cir. 1989)

Southview Assocs., Lid. v. Bongartz, 980 F.2d 84

(2d Cir. 1992), ceri. denied, 507 U.S. 987 (1993) ....5

Tahoe-Swerra Pres. Council v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002)

Torromeo v. Town of Fremont, N.H., 438 F.3d 113

(ist Cir. 2006), cert. denied, 127 S. Ct. 257

(2006)

Yaklich v. Grand County, 2008 WL 1986470,

(10th Cir. 2008)

Wilkinson v. Pitkin County Bd. of Comm’rs,

142 F.3d 1319 (10th Cir. 1998)

Williamson County Reg’l Planning Comm'n v.

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

v1

TABLE OF AUTHORITIES (cont.)

STATUTORY PROVISIONS

28 U.S.C. § 1441(a)

28 U.S.C. § 1738

ee 13

OTHER

Br. of NAHB and Franklin P.Kottschade as Amici

Curiae Supporting Pet’rs, Braun v. Ann Arbor

Twp., No. 08-250 (S. Ct. filed Sept. 24,

ae ont conte revnsenckenoviesoene ..4, 6, 9, 13

John Delaney and Duane Desiderio, Who Will

Clean Up the “Ripeness Mess”? A Call for Reform

so Takings Plaintiffs can Enter thé Federal

Courthouse, 31 Urb. Law. 195 (Spring 1999)........ 15

Steven J. Eagle, Regulatory Takings, 1062,

2d ed. (2001)

Madeline J. Meacham, Jhe Williamson Trap,

32 Urb. Law. 239 (2000)

Thomas E. Roberts, Ripeness and Forum Selection

in Fifth Amendment Takings Litigation,

11 J. Land Use & Envtl. L. 37 (1995)

vu

TABLE OF AUTHORITIES (cont.)

Page(s)

Private Prop. Rights Implementation Act of 2008:

Hearing on H.R. 1534 Before the Subcomm. On

Courts and Intellectual Prop. of the H. Judiciary

Comm., 105th Cong. 67 (1997) (test. of Prof.

Daniel R. Mandelker), reprinted in 31 Urb. Law.

Be SN IID oi crnccscensctdscscesncctertacovasdecsseereees 15

INTERESTS OF AMICI CURIAE

The National Association of Home Builders

(“NAHB”) and Franklin P. Kottschade have

received the parties’ written consent to file this

amici curiae brief supporting petitioners.! NAHB

is a Washington, D.C.-based trade association

whose mission is to enhance the climate for housing

and the shelter industry. As the voice of America’s

housing industry, NAHB helps promote policies

that will keep housing a national priority. Founded

in 1942, NAHB is a federation of more than 800

state and local associations. About one-third of

NAHB’s 235,000 members are home _ builders

and/or remodelers, and its members construct

about 80 percent of the new homes built each year

in the United States.

NAHB is a vigilant advocate in the Nation’s

courts, and it frequently participates as a party

litigant and amicus curiae to safeguard the

property rights and interests of its members.

NAHB was a petitioner in NAHB v. Defenders of

Wildlife, 127 S.Ct. 2518 (2007). Attached at

Appendix A to this brief is a list of cases in which

' Counsel of record for all parties received notice at least 10

days prior to the due date of the amicus curae’s intention to

file this brief. Letters of consent are on file with the Clerk.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amici curiae, its members, or its counsel

made a monetary contribution to its preparation or

submission

NAHB has participated before this Court as amicus

curiae or “of counsel.” A large number of those

cases involved landowners and other parties

aggrieved by over-zealous regulation under a wide

array of statutes and regulatory programs.

NAHB’s_ organizational policies have long

supported the rights of property owners to have

their constitutional claims heard by federal courts.

It is troubled by the tactic of government officials to

use Williamson County Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172

(1985), as a shield against legitimate Fifth

Amendment claims. Under the conventional

interpretation of Williamson, aggrieved landowners

must run a procedural gauntlet that preciudes

federal court adjudication on the merits of whether

an unconstitutional taking has occurred in any

given situation.

A case in point is Mr. Kottschade’s htigation

odyssey.2. ‘A homebuilder and developer from

Rochester, Minnesota, he has negotiated and

litigated the constitutionality of government land-

use decisions on his property for almost a decade,

in federal and state court, and no judicial forum

has ever decided the merits of his case. After

months of negotiating with local officials regarding

the use of his property, the City imposed financially

2 A more detailed description of Mr. Kottschade’s voyage

through the federal and state court systems is provided in Br

of NAHB and Franklin P. Kottschade as Amici Curiae in

Support of Pet'rs, Braun v. Ann Arbor Charter Twp., No. 08-

250 (filed Sept. 24, 2008), at 18-23

rulous conditions on Mr. Kottschade’s proposed

project to develop affordable residential

townhomes. He thus filed suit in federal court in

June 2001, seeking just compensation for a taking

of his property under the Fifth Amendment.

However, the federal courts dismissed his case

for not being ripe. In 2003, the Court of Appeals for

the Eighth Circuit expressed some sympathy for

the jurisdictional Catch-22 that Williamson causes

for takings plaintiffs, but its compassion only went

so deep and it denied Mr. Kottschade federal court

access. Kottschade v. City of Rochester, 319 F.3d

1038, 1041 (8th Cir. 2003) (state-litigation rule has

created an “anomalous ... gap in Supreme Court

jurisprudence”). Subsequently, this Court denied

Mr. Kottschade’s petition for certiorari. 540 U.S.

825 (2003). He remains mired in litigation, now in

state court, and has yet to receive a decision on the

merits from ary court.

To bring attention to the jurisprudential

dilemma caused by Williamson, Mr. Kottschade has

testified before Congress to advocate for legislative

reform that would confer upon property owners the

nght to federal court adjudication on Fifth

Amendment takings claims, without an initial

detour in state court. See Private Property Rights

Implementation Act of 2005: Hearing on H.R. 4772

Before the Subcomm. on the Constitution of the H.

Comm. on the Judiciary, 109th Cong. (2006)

(statement of Franklin P. Kottschade, President,

North American Realty).

ARGUMENT

I. THE COURT SHOULD GRANT

CERTIORARI IN THIS CASE FOR THE

SAME REASONS THAT IT SHOULD

ACCEPT REVIEW IN BRAUN V. ANN

ARBOR TOWNSHIP, NO. 08-250.

A pending certiorari petition in Braun v. Ann

Arbor Charter Twp., No. 08-250, seeks review of a

Sixth Circuit decision that blocked federal court

access for a property owner who tried to vindicate a

takings claim in federal court. NAHB and Mr.

Kottschade also filed an amici brief in that matter,

which we fully incorporate here, urging the Court

to reassess Williamson County Reg'l Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).

See Br. of NAHB and Franklin P. Kottschade as

Amici Curiae Supporting Pet’rs, Braun v. Ann

Arbor Twp., No. 08-250 (S. Ct. filed Sept. 24, 2008)

(“NAHB Braun Amici Br.”). For the same reasons

that NAHB supports this Court’s review in Braun,

it supports review of the petition in the case at

bench.

The first questions presented in the petitions for

this case and Braun both request the Court to

consider whether it should “overrule” the state-

litigation rule announced in Williamson. Compare

Agripost Pet. at i (“Should the Court overrule

Williamson ... insofar as it denies property owners

the right to litigate their federal causes of action in

federal court ....”) with Braun Pet. at i (“Should the

Court overrule Williamson ... insofar as it requires

property owners to seek compensation in state

court ....”). The state-litigation rule provides: “[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.” Williamson, 473 U.S. at 195. This

language has been uniformly interpreted to apply

to judicial procedures; a Fifth Amendment takings

claim does not become ripe for federal court

adjudication until the aggrieved property owner

pursues inverse condemnation litigation in state

court and loses.*

Both the petitions here and in Braun emphasize

that four concurring Justices in San Remo Hotel,

L.P. v. City and County of San Francisco, 545 U.S.

323 (2005), stated that the state-htigation rule

“may have been mistaken,” and that “fiJt is not

3 E.g., Asociacion de Subscripcion Conjunta del Seguro de

Responsabilidad Obligatorio, v. Flores Galarza, 484 F.3d 1,

16-19 (Ist Cir. 2007); Southview Assocs. Ltd. v. Bongartz, 980

F.2d 84, 99-100 (2d Cir. 1992), cert. denied, 507 U.S. 987

(1993); Brubaker v. E. Hempfield Twp., 234 Fed. Appx. 32, 36-

37 (3d Cir. 2007); Henry vu. Jefferson County Planning

Comm'n, 34 Fed. Appx. 92, 96 (4th Cir. 2002); Samaad v. City

of Dallas, 940 F.2d 925, 933-36 (5th Cir. 1991); Peters v. Fair,

427 F.3d 1035, 1038 (6th Cir. 2005); Peters v. Vill. of Clifton,

498 F.3d 727, 731-734 (7th Cir 2007), cert. denied, 128 S. Ct.

1472 (2008); Kottschade v. City of Rochester, 319 F.3d 1038,

1041 (8th Cir.), cert. denied, 540 U.S. 825 (2003); Sinclair Oti

Corp. v. County of Santa Barbara, 96 F.3d 401, 405-07 (9th

Cir. 1996), cert. denied, 528 U.S. 1059 (1998); Yaklich v.

Grand County, 2008 WL 1986470 at *4-*6 (10th Cir. 2008);

Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225, 1234

(lith Cir. 1999), cert. denied, 531 U.S. 815 (2000).

clear that Williamson County was correct in

demanding” that a claimant must first seek a

compensation remedy through state litigation as a

prerequisite to ripen a federal takings claim. Id. at

348-349 (Rehnquist, C.J., concurring). The San

Remo concurring Justices’ believed that

Williamson’s “state-litigation rule has created some

real anomalies, justifying our revisiting the issue.”

Id. at 351. NAHB wholly concurs. The pending

requests for certiorari in this case and Braun

provide appropriate vehicles to resolve these

anomalies,‘ which include the following.

A. Conflict Between Williamson and San

Remo on Subsequent Versus Concurrent

Takings Claims.

Tension is. especially pronounced between

Williamson and San Remo. The Williamson Court

stated that exhaustion of state compensation

procedures is a first step to ripen federal takings

claims: “/Ujntil [plamtff] has utilized [state]

procedure[s], its takings claim is premature.”

Williamson, 473 U.S. at 197 (emphasis supplied).®

4 The lower courts routinely recognize the doctrinal conflicts

left in Williamson's wake. See, e.g., Kottschade v. City of

Rochester, 319 F.3d 1038, 1041 (8th Cir.) (state-litigation rule

has created an “anomalous ... gap in Supreme Court

junsprudence’), cert. denied, 540 U.S. 825 (2003); Wilkinson

v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319, 1325 n. 4

(10th Cir. 1998) (‘It is difficult to reconcile the [state

litigation] ripeness requirement of Williamson” with issue

and claum preclusion)

® See also Williamson, 473 U.S. at 194 (“A second reason the

takings claim is not yet ripe is that respondent did not seek

Virtually every court of appeals has interpreted

this language to mean that a Fifth Amendment

takings claim is not ripe — it does not exist —— until

a property owner has filed suit for inverse

condemnation in state court and has been denied

compensation. Supra n. 3. Many commentators

also read Williamson as providing the opportunity

for ultimate federal adjudication following denial of

compensation in state court.®

The Court’s opinion in San Remo, however,

upends this widespread understanding. It declared

that federal takings claims could, in fact, be

asserted during a state lawsuit:

The requirement that aggrieved property

owners must seek “compensation through

the procedures the State has provided for

doing so” ... does not preclude state courts

from hearing simultaneously a_ plaintiff's

compensation through the procedures the state has provided

for doing so”) (emphasis supplied); id. at 195 (“the property

owner cannot claim a violation of the Just Compensation

Clause until it has used the [available state] procedure and

been denied just compensation”) (emphasis supplied).

6 See, e.g., Steven J. Eagle, Regulatory Takings, 1062, 2d ed.

(2001) (‘The ‘ripeness’ metaphor is one that promises

ultimate vindication’); Thomas E. Roberts, Ripeness and

Forum Selection in Fifth Amendment Takings Litigation, 11

J. Land Use & Envtl. L. 37, 67 (1995) (‘the language

suggests that the state law is merely preparatory to a federal

suit’); Madeline J Meacham, The Williamson Trap, 32 Urb

Law. 239, 249 (2000) (“language of Williamson suggests

that a federal claim will survive after disposition in the state

court )

request for compensation under state law

and the claim that, in the alternative, the

denial of compensation would violate the

Fifth Amendment of the Federal

Constitution.

San Remo, 545 US. at 346 (citing Williamson, 473

U.S. at 194) (emphasis supplied). Thus, while

Williamson rules that a federal takings claim is not

ripe until after the state denies compensation, San

Remo rules that federal claims can be brought

sumultaneously with state claims in state court.

So, which is the rule? Are Williamson and San

Remo reconcilable, or in hopeless conflict? How is

it that a Fifth Amendment claim can be brought

simultaneously with a state inverse condemnation

claim in state court, if that federal claim is not ripe

until after the state denies compensation? How

would the process of bringing simultaneous claims

work? Should the state and federal takings claims

be brought in state court sequentially, in that

order? Are they part of the same, or separate,

lawsuits? What effect does San Remo’s

simultaneous claim rule have on case law from the

lower federal courts, cited supra n. 3, which have

been virtually unanimous that Fifth Amendment

takings claims are nascent and do not become ripe

for adjudication until after state litigation is over?

Are these opinions now overruled?

The petition should be granted so the Court can

clarify the apparent contradictions between

Williamson's rule that state litigation is a condition

precedent to ripen a federal takings claim, and San

Remo’s rule that federal and state takings cases

can be brought simultaneously in state court.

B. Conflict Between Williamson and City of

Chicago, on Removal Jurisdiction.

The NAHB Braun Amicus Br. at 11-12, and the

Agripost Pet. at 22-25, both emphasize another

anomaly arising from Williamson that demands

resolution. The _ state-litigation rule _ is

irreconcilable with this Court’s view of removal

jurisdiction from City of Chicago v. Int'l Coll. of

Surgeons, 522 U.S. 156 (1997). There, a plaintiff

brought both federal and state takings claims in

state court. The city then removed the case to

federal court. This Court, without discussing

Williamson, allowed the removal to stand because

“a Case containing claims that local administrative

action violates federal law ... is within the

jurisdiction of the federal district courts.” Jd. at

528-529. Under the federal removal statute,’ a

case can be removed from state to federal court only

if it could have been brought in federal court

originally.

Therein, the seeds of more conflict are sown.

Under Williamson, federal courts do not have

original jurisdiction over federal takings claims

because they are nov ripe until the property owner

7 “[A}ny civil action brought in a State court of which the

district courts of the United States have original jurisdiction,

may be removed by the defendant ... to the district court.” 28

U.S.C. § 1441(a) (emphasis supplied.)

10

brings state litigation and loses. San Remo

confirms that there is no original federal court

jurisdiction over federal takings claims, and

counsels that they may be brought simultaneously

with state inverse condemnation claims in state

court. Yet under City of Chicago, federal courts do

have original jurisdiction over federal takings

claims because a municipality may remove them to

federal court. The consequence is that federal

courts decide takings claims only at the whim of

municipal defendants who decide to exercise their

removal option. The petition should be granted to

address the dilemma created by Williamson, San

Remo, and City of Chicago, as to whether federal

courts do, in fact, possess “original jurisdiction”

over Fifth Amendment takings claims.

The conflict over Williamson's rule that takings

claims must go to state court first, and City of

Chicago’s rule that takings claims can be brought

originally in federal court, has predictably devolved

into lower court confusion. Federal judges have

split on whether they have jurisdiction to decide

Fifth Amendment takings claims that bypass

initial state litigation, due to case removal from

state to federal court by local government

defendants. The Seventh Circuit, on remand in

City of Chicago, decided it could resolve a removed

federal takings claim on the merits, despite the

lack of prior state litigation. Jnt’l Coll. of Surgeons

v. City of Chicago, 153 F.3d 356, 360 (7th Cir.

1998). In contrast, the Eighth Circuit has held it

lacked jurisdiction over a federal takings claim that

a municipal defendant removed to federal court,

11

precisely because no original state proceedings

ripened the federal claim. The stunning aspect of

this decision is that the federal court dismissed for

lack of jurisdiction, even though the plaintiff filed

initially in state court and was forced into federal

court upon the city’s removal motion. Koscielski v.

City of Minneapolis, 435 F.3d 898, 903-904 (8th Cir.

2006). The Fifth Circuit has similarly whipsawed a

takings plaintiff who filed suit orginally in state

court, only to see a municipal defendant remove the

matter to federal court — and then argue for

dismissal because Williamson’s state-litigation rule

went unsatisfied. The city was rewarded for its

chutzpah by dismissal of the case. Sandy Creek

Investors, Lid. v. City of Jonestown, 325 F.3d 623,

626 (5th Cir. 2003).

Constitutional rights are made illusory in this

system of municipal gamesmanship, where courts

and local governments bob and weave through a

ripeness maze that allows them to hide from the

merits of takings claims. A federal judge recently

expressed his discontent with this state of affairs:

Williamson County and City of Chicago are

in direct conflict. Under Williamson County,

a regulatory takings claim is not ripe until

state litigation is complete. Thus, a

regulatory takings claim cannot be the basis

for removal from state court because the

claim will never be ripe — removal will

always occur prior to the completion of state

litigation. However, City of Chicago

permitted a regulatory takings claim to be

12

removed. Either City of Chicago erroneously

permitted removal, or City of Chicago

implicitly held that the regulatory takings

claim was ripe —— a sub silentio elimination

of the Williamson County State Litigation

prong.

Del-Prairie Stock Farm, Inc. v. County of Walworth,

572 F.Supp.2d 1031, 1033 (E.D. Wis. 2008).

“{Cjonsiderations of fairness and justice” le at

the heart of the Takings Clause. Tahoe-Sierra Pres.

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

302, 333 (2002). It is neither fair nor just to allow a

municipal defendant to remove a takings case to

federal court, and then seck and receive a dismissal

for lack of a prior state ripening suit. This Court’s

decisions are irreconcilable, and the circuits have

thus become split on how to handle removed

takings cases. This Court should address the

conflict.

C. Conflict on Application of State-

Litigation Rule to Other Constitutional

Claims.

The lower federal courts also clash on whether

the state-htigation rule applies to due process and

equal protection claims, in addition to takings

clams. In many constitutional property mghts

cases, plaintiffs assert some combination of

takings, due process, and equal _ protection

violations under 42 U.S.C. § 1983. In Braun, for

example, the Sixth Circwit remarked it is unclear

whether due process and equal protection claims

13

must satisfy Williamson’s exhaustion

requirements. Braun, 519 F.3d at 572. While

holding that the Brauns’ procedural due process

claims must satisfy the exhaustion requirements,

the Sixth Circuit assumed the substantive due

process claims do not. Furthermore, with respect

to equal protection, Braun recognized that

“conflicting case law exists” concerning whether

Williamson applies. Id. at 574. In comparison, the

Seventh Circuit has held that Williamson’s

exhaustion requirement applies to both taking and

substantive due process claims, yet not equal

protection claims. Forseth v. Vill. of Sussex, 199

F.3d 363, 370-71 (7th Cir. 2000); See also Ochoa

Realty Corp. v. Faria, 815 F.2d 812, 817 n.4 (ist

Cir. 1987) (providing that state inverse

condemnation claims must be exhausted for both

federal takings and due process claims, without

opining on equal protection.). Finally, some circuits

restrict Williamson’s state remedies requirement to

takings claims only.8

The Tenth Circuit has issued two, irreconcilable

rulings on this point. It has applied Williamson's

state-litigation rule to takings and procedural due

8 See, e.g., County Concrete Corp. v. Town of Roxbury, 442

F.3d 159, 169 (3d Cir. 2006) (‘[G}iven that the ‘exhaustion of

just compensation procedures requirement only exists due to

the ‘special nature of the Just Compensation Clause,’ it is

inapplicable to appellants’ facial [substantive due process]

and [equal protection] claims”; citations omitted). Accord

Sinaloa Lake Owners Ass'n. v. City of Simi Valley, 882 F.2d

1398, 1404 (9th Cir. 1989); Front Royal and Warren County

Indus. Park v. Town of Front Royal, 135 F.3d 275, 283 n.3

(4th Cir. 1998); McKenzie v. City of White Hall, 112 F.3d 313,

317 (8th Cir. 1997).

14

process claims brought under section 1983. See

Rocky Mountain Materials & Asphalt, Inc. v. Bd. of

County Comm'rs of El Paso County, 972 F.2d 309,

311 (10th Cir. 1992). Yet it hac also ruled that the

state-litigation rule is not applicable to any claims

sounding in takings, due process, or equal

protection, because a plaintiff “need not exhaust his

available administrative remedies prior to filing a §

1983 action ....” See Bateman v. City of W.

Bountiful, 89 F.3d 704, 708 (10th Cir. 1996).

Accordingly, the lower court conflict on whether the

state-litigation rule encompasses due process and

equal protection (as well as takings) claims is

another reason that justifies reconsideration of

Williamson.

These anomalies — (1) the divergence between

Williamson and San Remo on _ subsequent as

opposed to concurrent federal takings claims, (2)

the confusion on removal jurisdiction, and (3)

whether state litigation must precede federal court

review of due process and equal protection claims —

when coupled with the preclusion doctrines of res

judicata and collateral estoppel, all operate to bar

judicial review of Fifth Amendment claims by any

court. As former Chief Justice Rehnquist

recognized, the state-litigation rule effectively

“precludes litigants from asserting their federal

claims even in state court.” San Remo, 545 U.S. at

342, n. 2 (Rehnquist, C.J., concurring). This is

because many states refuse to entertain federal

takings claims until compensation is finally denied

under state law, and collateral estoppel works to

bar subsequent consideration of federal issues

15

because the state law issues were decided first. At

the same time, Williamson (mal)functions so as to

“ensure[ ] that litigants who go to state court to

seek compensation will likely be unable later to

assert their federal takings claims in federal court

... Id. at 351 (Rehnquist, C.J., concurring).°

If federal takings claims are to be decided

exclusively by state courts, with no further access

to federal court, then this Court should clearly

state that is the case. If preclusion doctrines bar

adjudication of a federal claim in state court and

access to federal court after state proceedings, this

Court should so declare. In short, whether any

state or federal forum is open to decide the merits

of Fifth Amendment takings claims — and if so

which forum is the appropriate one to adjudicate a

9 This is exactly what has transpired. By the mid-1990s, the

lower federal courts overwhelmingly invoked the state-

litigation rule to avoid adjudicating the merits of Fifth

Amendment takings claims. See John Delaney and Duane

Desiderio, Who Will Clean Up the “Ripeness Mess”? A Call for

Reform so Takings Plaintiffs can Enter the Federal

Courthouse, 31 Urb. Law. 195, 203-205 (Spring 1999)

(surveying all land-use takings cases with a federal court

decision from 1990-1998). As a preeminent takings scholar

testified before Congress, the lower federal courts have

exhibited “wholesale abdication of federal jurisdiction” over

Fifth Amendment claims and have achieved the “undeserved

and unwarranted result {of] avoid[ing] the vast majority of

takings cases on their merits.” Private Prop. Righis

Implementation Act of 2005: Hearing on H.R. 1534 Before the

Subcomm. on Courts and Intellectual Prop. of the H.

Judiciary Comm., 105th Cong. 67 (1997) (test. of Prof. Daniel

R. Mandelker), reprinted in 31 Urb. Law. 234 (Summer

1999).

16

Bill of Rights provision — are significant

constitutional question for this Court to clarify.

Il. THIS CASE SQUARELY QUESTIONS THE

VALIDITY OF THE STATE-LITIGATION

RULE.

The decision below provides a textbook example

of Williamson’s effect in barring federal courts from

deciding Fifth Amendment takings claims on their

merits. While the state-litigation rule was not

teed-up for this Court’s consideration in San Remo,

it is directly in play in the case at bench. Here,

Petitioners’ land-use permit was revoked, they filed

suit in state court over the revocation, and they

lost. Agripost, LLC v. Miami-Dade County, 525

F.3d 1049, 1051 (11th Cir. 2008). Petitioners then

sought Fifth Amendment just compensation in

federal court; that claim was dismissed as unripe @

la Williamson because the compensation remedy

was never sought in state court first. Id.

Returning to state court on a state law inverse

condemnation claim (while reserving the Fifth

Amendment claim for subsequent federal review),

Petitioners were denied compensation because they

were found to not have a protectable property

interest. Jd. at 1052.

A final foray back to federal court proved futile,

as the court of appeals decided that issue

preclusion barred adjudication on the merits of the

Fifth Amendment cause of action. Jd. at 1056.

Thus, after two rounds of litigation through the

federal and state systems, the ironic synergy

17

between Williamson’s _§state-litigation rule and

preclusion doctrine worked yet again to deprive a

property owner the benefit of a federal review on

the merits of a Bill of Rights claim.

In San Remo, many amici (including NAHB)

urged the Court to directly confront Williamson.

But the invitation was declined because “no court

below hald] addressed the correctness. of

Williamson County, neither party ha[d] asked us to

reconsider it, and resolving the issue could not

[have] benefit[ed] petitioners.” San Remo, 545 US.

at 352. (Rehnquist, C.J., concurring). The converse

is true here. First, the court of appeals did

consider Williamson’s impact,!® and second, the

petition’s first question plainly asks the Court to

reassess the state-litigation rule.

Third, resolving the issue would benefit

Petitioners. If the Court reconsiders the state-

litigation rule and removes it from the ripeness

landscape, a remand would be appropriate to allow

Petitioners the right of a federal jury trial under

the Seventh Amendment to develop their takings

claim on a complete factual record. See City of

Monterey v. Del Monte Dunes, 526 U.S. 687, 719

(1999) (takings plaintiffs in Section 1983 litigation

have a Seventh Amendment night to a jury trial on

issues of government liability).

10 “In short, the interaction of [the Full Faith and Credit

Statute, 28 U.S.C.] § 1738 and Williamson County might

deprive the plaintiff of the chance to litigate his Takings

Clause claim in a federal forum ....”. Agripost, 525 F.3d at

1052 (emphasis supplied).

18

To date, the Court has denied at least eight

petitions for certiorari requesting review of

Williamson since the San Remo decision." At this

juncture, further postponing review will not

contribute to resolution of the open questions

generated by Williamson, inconsistencies within

this Court’s takings jurisprudence will linger, and

conflicting lower court decisions will proliferate.

Respectfully, NAHB encourages this Court to grant

the petitions in Agripost and Braun, reconsider the

state-litigation element of Williamson’s ripeness

doctrine — and dispense with it.

1! See Johnson v. City of Shorewood, 2008 WL 434680 (Minn.

Ct. App. 2008), cert. denied, 129 S. Ct. 281 (2008) Border Bus.

Park, Ine. v. City of San Diego, 49 Cal. Rptr. 3d 259 (Cal. Ct.

App. 2007), cert. denied, 127 S. Ct. 2280 (2007), Hillsboro

Props. et al. v. City of Rohnert Park et al., 41 Cal. Rptr. 3d 441

(Cal. Ct. App. 2006), cert. denied, 127 S. Ct. 836 (2006),

Rockstead v. City of Crystal Lake, 486 F.3d 963 (7th Cir.

2007), cert. denied, 128 S. Ct. 415 (2007), Torromeo v. Town of

Fremont, N.H., 438 F.3d 113 (1st Cir. 2006), cert. denied, 127

S. Ct. 257 (2006), Peters v. Vill. of Clifton, 498 F.3d 727 (7th

Cir. 2007), cert. denied, 128 S. Ct. 1472 (2008), McNamara v.

City of Rittman, 473 F.3d 633 (6th Cir. 2007), cert. denied, 128

S. Ct. 67 (2007), City of Marion v. Howard, 855 N.E. 2d 994

(Ind. 2006), cert. denied, 126 S. Ct. 2358 (2006).

19

CONCLUSION

It is time to end the fiction that the Fifth

Amendment requires a litigant to run an initial

gauntlet through the state court system before the

constitutional takings claim ripens. The exercise of

constitutional mghts can, and often does, hinge on

traditionally “local” issues. Yet these highly

parochial concerns face no barriers to federal court

jurisdiction outside the takings context. For

example, the First Amendment does not protect all

speech; obscene material is not protected. Whether

an artistic or literary work is obscene is determined

by “contemporary community standards” and

definitions under the “applicable state law.” See

Miller v. California, 413 U.S. 15, 24 (1973). In the

First Amendment arena, there is no requirement

that a plaintiff litigate such provincial matters in

state court first before the doors to the federal

courthouse are unlocked.

Why should a takings litigant be treated

differently? The Fifth Amendment certainly does

not say, “nor shall private property be taken for

public use without the payment of just

compensation, where a demand _ for such

compensation is first made in a state court.” This

Court “see[s] no reason why the Takings Clause of

the Fifth Amendment, as much a part of the Bill of

Rights as the First Amendment or Fourth

Amendment, should be relegated to the status of a

poor relation ....” Dolan v. City of Tigard, 512 U.S.

374, 393 (1994). With respect, that is an empty

sentiment if the substance of the Takings Clause

20

cannot be interpreted by, and a property owner

cannot seek the constitutionally-mandated remedy

of just compensation in, the federal judiciary.

When Williamson was decided in 1985, this

Court's modern takings jurisprudence was still in

its infancy. Indeed, only after Williamson, in First

English Evangelical Lutheran Church of Glendale

v. Los Angeles, 482 U.S. 304 (1987), did this Court

even decide that monetary compensation was the

self-effecting remedy required by the Takings

Clause. Since then, the contours of the Fifth

Amendment’s substantive protections have become

somewhat more defined by this Court, but the most

basic, fundamental jurisdictional question — “Can

a federal court ever decide a federal takings claim?”

— remains undeciphered.

This question of whether Fifth Amendment

takings litigants can access the federal courts is of

overwhelming constitutional importance.

For the foregoing reasons, the petitions in the

case at bench, and in No. 08-250, should both be

granted.

November 21, 2008.

Respectfully submitted,

Duane J. Desiderio

Counsel of Record

Thomas J. Ward

National Association of

Home Builders

1201 15t Street, N.W.

Washington, D.C. 20005

(202) 866-8200

Counsel for Amici Curiae

APPENDIX

App. la

APPENDIX A

Cases in which NAHB has appeared as an amicus

curiae or “of counsel” before this Court include:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San

Diego Gas and Elec. Co. v. City of San Diego, 450 U.S.

621 (1981); Williamson County Reg'l Planning Comm’n

v. Hamilton Bank, 473 U.S. 172 (1985); MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340 (1986);

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987); Nollan v. Cal.

Coastal Comm'n, 483 U.S. 825 (1987); Pennell v. City

of San Jose, 485 U.S. 1 (1988); Yee vu. City of

Escondido, 503 U.S. 519 (1992); Lucas v. S.C. Coastal

Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard,

512 U.S. 374 (1994); Babbitt v. Sweet Home Chapter of

Cmtys. for a Greater Ore., 515 U.S. 687 (1995); Suitum

v. Tahoe Regl Planning Agency, 520 U.S. 725 (1997);

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687 (1999); Solid Waste Agency of N. Cook

County v. U.S. Army Corps of Eng’rs, 531 U.S. 159

(2001); Palazzolo v. Rhode Island, 533 U.S. 606 (2001);

Franconia Assocs. v. United States, 536 U.S. 129

(2002); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302 (2002); Borden Ranch

P’ship v. U.S. Army Corps of Eng’rs, 537 U.S. 99

(2002); City of Cuyahoga Falls v. Buckeye Cmty. Hope

Found., 538 U.S. 188 (2003); S. Fla. Water Mgmt. Dist.

v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004); San

Remo Hotel, L.P. v. City and County of San Francisco,

545 U.S. 323 (2005); Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005); Kelo v. City of New London, 545

U.S. 469 (2005); S.D. Warren Co. v. Me. Bd. of Envitl.

App. 2a

- Prot., 547 U.S. 370 (2006); Rapanos v. United States,

547 U.S. 715 (2006); John R. Sand and Gravel Co. v.

United States, 128 S.Ct. 750 (2008); Winter v. Nat.

Res. Def. Council, 2008 WL 4862464 (U.S. Nov. 12,

2008); Summers v. Earth Island Inst., 490 F.3d 687

(9th Cir. 2007), cert. granted, 128 S. Ct. 1118 (2008)

(No. 07-463); Entergy Corp. v. Envtl. Prot. Agency, 475

F.3d 83 (2d Cir. 2007), cert. granted, 128 S. Ct. 1867

(2008) (consol. with Nos. 07-589 and 07-597); and

Coeur Alaska, Inc. v. S.E. Alaska Cons. Council, 486

F.3d 638 (9th Cir. 2007), cert. granted, 128 S. Ct. 2995

(2008) (No. 07-984, consol. with 07-990).