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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0779%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

\\\ (Q) pane us

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0779%3A5. Public record. Not legal advice.