TESTIMONY OF DANIEL R. MANDELKER* ON H.R. 2372
Before the House Judiciary Committee
Subcommittee on the Constitution
September 15, 1999
*Howard A. Stamper Professor of Law, Washington University School
of Law, St. Louis, Missouri. Professor Mandelker received no compensation
to assist NAHB's effort to support the Bill, although his travel expenses
were met. He would like to acknowledge the research assistance of
Duane Desiderio in the preparation of this testimony.
TESTIMONY OF DANIEL R. MANDELKER ON H.R. 2372
Before the House Judiciary Committee
Subcommittee on the Constitution
I am Daniel R. Mandelker, the Stamper Professor of Law
at the University of Washington in St. Louis, Missouri. My area of
expertise is the law of zoning and land use planning. I am the author
of numerous articles in this area and have written 16 books on the
topic. A copy of my curriculum vitae is attached. I am pleased to
submit these comments on H.R. 2372, the Private Property Rights Implementation
Act of 1999. I am here on my own behalf to support the bill. In offering
this testimony I do not represent any interest group nor have I received
any compensation, but the National Association of Home Builders has
agreed to reimburse me for my travel and lodging expenses so I could
appear here today. To prepare my submission I have reviewed, among
other materials, the letter dated August 15, 1997, from Andrew Fois,
Assistant Attorney General, United States Department of Justice, to
Senator Patrick Leahy raising many policy concerns about H.R. 2372.
I have also read the letter responding to the Department of Justice's
criticisms, dated September 5, 1997, from John J. Delaney and Duane
J. Desiderio of Linowes and Blocher LLP, to Mr. Fois. I have also
read Messrs. Delaney's and Desiderio's article in Spring 1999 edition
of The Urban Lawyer ("Who will Clean Up the 'Ripeness Mess'?
A Call for Reform So Takings Plaintiffs Can Enter the Federal Courthouse").
Some of my testimony relies upon the Linowes and Blocher letter and
the article, with which I concur. My written testimony has two goals.
First, I will explain why, in my opinion, H.R. 2372 is necessary to
afford aggrieved landowners access to the federal courts when they
suffer from unconstitutional government conduct. Second, I intend
to explain what H.R. 2372 does, and does not, accomplish.
I. THE NEED FOR H.R. 2372
The Fifth Amendment Restricts the "Taking" of Private
Property. The Fifth Amendment prohibits the federal government from
"taking" private property for public use unless the affected
property owner is paid "just compensation." The restrictions
of the takings clause apply to state and local governments through the
The Constitution thus operates under the presumption that all levels
of government can regulate private property for public purposes‑‑such
as zoning, environmental preservation, or any other reason to protect
the safety, health and welfare of the community. However, in the words
of Justice Holmes, sometimes government regulation for a public purpose
goes "too far" and causes a taking. Pennsylvania Coal Co.
v. Mahon, 260 U.S. 393, 415 (1922) (Holmes, J.) For this reason, one
of the "principal purposes" of the takings clause is to prevent
government " 'from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as
a whole.'" Nollan v. California Coastal Comm'n, 483 U.S. 825, 835
n.4 (1987) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).
Government regulation effects a taking, and requires the payment of
just compensation, if it does not substantially advance a legitimate
state interest or denies an owner economically viable use of his or
her land. See Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). Ripeness
Rules and the Fifth Amendment.
Before a property owner can bring a takings claim against a government
body, he must satisfy certain rules established by the Supreme Court
to ensure the case is "ripe." In Williamson County Regional
Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), the Court announced
a two‑part ripeness test before a court can decide, on the merits,
whether a regulation "goes too far" so as to require the payment
of compensation. First, a land use agency must deliver a final decision
"regarding how [a landowner] will be allowed to develop its property,"
that represents "a definitive position à inflict[ing] an actual,
concrete injury" upon the property owner. 473 U.S. at 191, 192.
Second, a property owner must exhaust any compensation remedies under
state law before litigating its federal constitutional claims in federal
court. Id. at 194‑95. In applying this two‑part test, the
Court has found takings claims unripe where a property owner did not:
(1) submit initial development plans for approval in the first instance;(1)
(2) submit to a process to obtain a permit that may allow development;(2)
(3) apply for a variance or waiver from applicable land use regulations;(3)
or (4) provide alternate or scaled‑down development plans compared
to an initial proposal.(4) I agree that certain rules are necessary
to determine when a takings claim is ripe for adjudication. However,
the lower courts' applications of the Supreme Court's precedents are
riddled with obfuscation and inconsistency. Indeed, "[t]he lack
of uniformity among the [federal] circuits in dealing with zoning casesàis
remarkable." Pearson v. City of Grand Blanc, 961 F.2d 1211, 1217
(6th Cir. 1992) (substantive due process land use case). The ripeness
opinions are in such disarray that federal judges and landowners need
some objective criteria so that all parties know, up front, the point
at which a government land use decision becomes final. I believe that
H.R. 2372 goes a long way toward achieving that objective in a manner
that is fair to both property owners and government officials.
The Lower Federal Courts' Rejection of their Duty to Resolve Cases Concerning
Constitutionally‑Protected Property Rights. In my opinion, federal
judges have distorted the Supreme Court's ripeness precedents to achieve
an undeserved and unwarranted result: they avoid the vast majority of
takings cases on their merits. The circumstance is all‑too‑frequent
that federal judges greet land use matters with an air of condescension‑‑even
though private property rights protected by the Fifth and Fourteenth
Amendments are at stake.
When lower courts are asked to decide whether property is taken by final
agency action without compensation, I disagree with the Ninth Circuit's
assessment that they sit as "the Grand Mufti of local zoning boards."
Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989). I
find it unconscionable that federal judges are predisposed to dismiss
cases raising deprivations of constitutionally‑protected property
rights as "garden‑variety zoning dispute[s] dressed up in
the trappings of constitutional law." Coniston Corp. v. Village
of Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988). This mind‑set
is causing a chilling effect to dissuade aggrieved citizens from seeking
judicial redress, even though they have suffered at the hand of unconstitutional
government conduct. One commentator notes that judges avoided the merits
in over 94% of all takings cases litigated between 1983‑1988.
See Gregory Overstreet, The Ripeness Doctrine of the Takings Clause:
A Survey of Decisions Showing Just How Far Federal Courts Will Go To
Avoid Adjudicating Land Use Decisions, 10 J. Land Use & Envt'l L.
91, 92, n. 3 (1994). The case survey included by Messrs. Delaney and
Desiderio in their article (see 31 The Urban Lawyer at 202‑231
(Spring 1999)) has been provided to this Subcommittee. I have reviewed
this survey, and note that 83% of the takings claims initially raised
in the United States district courts, from 1990‑1998, never reached
the merits. For those property owners who commenced land use litigation
in the federal trial courts and brought appeals therefrom during the
same period, more than 64% saw their takings claims dismissed. Moreover,
the survey notes that of the small portion of appellate cases where
takings claims were found ripe and the merits reached, "it took
property owners, on the average, 9.6 years to have an appellate court
reach its determination. These landowners thus endured almost a decade
of negotiation and litigation to obtain a judicial determination that
their takings arguments could be heard on the merits." 31 The Urban
Lawyer at 205 (emphasis in orginal). The lower courts' condescension
against constitutional land use matters "forget[s] that a strong
public desire to improve the public condition is not enough to warrant
achieving the desire by a shorter cut than the constitutional way of
paying for the change." Pennsylvania Coal Co. v. Mahon, 260 U.S.
393, 416 (1922) (Holmes, J.) H.R. 2372 would prevent federal judges
from their persistent efforts to sacrifice the takings clause on the
ripeness altar. The bill would curtail the nearly wholesale abdication
of federal jurisdiction in lawsuits where issues are raised concerning
the constitutional validity of land use regulation.
Abuses of the Ripeness Doctrine.
Land use agencies across the country have applied the ripeness requirement
to frustrate as‑applied takings claims in federal court. I was
of counsel on an amicus curiae brief submitted by the American Planning
Association (APA) in a ripeness takings case decided in the 1996‑1997
term,(5) Suitum v. Tahoe Regional Planning Agency, 117 S.Ct. 1659 (1997).
The brief supported the land use agency in this matter, but it also
recognized that current ripeness rules: invite[ ] local government to
create a more complicated and time consuming review and approval process.
It is, in fact, an open invitation for some local governments to do
mischief. Unscrupulous officials can and often do easily assert, after
the fact, that they "would have been willing" to consider
an intensity of use or an alternative type of use that the landowner
never proposed. This is plainly unfair and an abuse of [the ripeness
requirement]à. Brief Amicus Curiae of the American
Planning Association in Support of Respondent, Suitum v. Tahoe Regional
Planning Agency, No. 96‑243, at 13 ("APA Brief"). Examples
of these sentiments, in the reported case law alone, are legion. The
problem is especially serious because property owners may have neither
the means nor stomach to litigate ripeness issues indefinitely. See
Stein, Regulatory Takings and Ripeness in Federal Courts, 48 Vand. L.
Rev. 1, 43 (1995) ("Practically speaking, the universe of plaintiffs
with the financial ability to survive the lengthy ripening process is
Consider Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920
F.2d 1496 (9th Cir.), on remand, 95 F.3d 1422 (9th Cir.), aff'd, 119
S.Ct. 1624 (1999). In 1981, the property owners submitted a subdivision
proposal to build 344 residential units. The plan was rejected, and
city planners informed that a plan for 264 units would be reviewed favorably.
The owners then submitted a plan for 264 units; city planners rejected
it, and informed that a plan for 224 units would be reviewed favorably.
The owners then submitted a plan for 224 units; city planners rejected
it, and informed that a plan for 190 units would be reviewed favorably.
The owners then submitted a plan for 190 units; city planners rejected
it, and the owners appealed to the city council. The city council found
the plan "conceptually satisfactory," and granted a conditional
18‑month use permit to commence construction for the project.
Subsequently, the developer worked with planning board staff to meet
the city council's conditions for the 190‑unit development. Staff
recommended approval of the site plan, but the planning board overrode
staff's recommendation and issued a denial. The property owners then
appealed this decision to the city council, which this time denied the
site plan for 190 units. Meanwhile, a sewer moratorium was imposed,
a request to extend the special use permit was rejected, and the permit
expired. The local officials thus expected the developer to start from
square one. Following this Kafkaesque process, the federal district
court dismissed a takings claim for lack of ripeness, but the appellate
court then reversed. See 920 F.2d at 1502‑1506; 119 S.Ct. at 1632.
After 17 years of negotiation and litigation‑‑and because
the municipality permitted absolutely no use of the property at issue‑‑the
Supreme Court finally put an end to this case by upholding the lower
court's award of just compensation to the land owner. It is significant
that the Supreme Court recognized that takings plaintiffs have a federal
constitutional right under the Seventh Amendment to a federal jury trial
in a 5th Amendment property rights cases. 119 S.Ct. at 1637‑1645.
Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109 (E.D. Pa.
1993), also merits discussion. There, after a local board rejected a
development plan, the property owner purchased buffer lands so the applicable
zoning could accommodate the proposed development. Subsequently, the
county council met clandestinely in a "behind‑closed‑doors"
executive session to re‑zone the property and repeal the earlier
provisions of the zoning ordinance that would have permitted the development.
Nonetheless, the property owner was not able to get the federal court
to address the merits of his federal constitutional grievances. Even
though the property owner never had the opportunity to participate in
the secret session, and even though the re‑zoning was done for
the specific purpose of preventing the development at issue, the court
said the claims were unripe because the property owner never challenged
the re‑zoning's validity. A California state case typifies the
situation that landowners commonly confront when dealing with local
officials. In Healing v. California Coastal Comm'n, 27 Cal Rptr. 758
(Ct. App. 1994), a state agency denied a permit for constructing a one‑story,
three‑bedroom home, where it had not received a recommendation
from a non‑existent board as to whether the property should be
restricted from development under a non‑existent program for acquisition
and set‑asides of lots in the Santa Monica mountains. When the
property owner sought compensation for a taking, the state argued that
the claim was unripe. The court decided that the claim was, in fact,
ripe, and acknowledged the abuses of the land use process inflicted
upon the property owner:
It is in the nature of our work that we see many virtuoso performances
in the theaters of bureaucracy, but we confess a sort of perverse admiration
for the Commission's role in this case. It has soared beyond both the
ridiculous and the sublime and presented a scenario sufficiently extraordinary
to relieve us of any obligation to explain why we are reversing the
judgmentà.To state the Coastal Commission's position is to demonstrate
its absurdity. Id. at 764.
It is my opinion that, based on the nature of the takings clause, property
owners must first pursue some negotiation with land use officials to
determine how far a regulation goes. However, I do not believe that
ripeness barriers should be arbitrary, insurmountable or labyrinthine.
I support H.R. 2372 because it would facilitate the negotiation process,
while providing a more precise and just basis for determining when federal
courts have jurisdiction in takings cases.
HOW THE BILL DEALS WITH THE "RIPENESS MESS."
I suggest that H.R. 2372 goes a long way to remedy the "ripeness
mess" that currently precludes landowners from asserting constitutional
takings claims in federal court. See Michael M. Berger, The Ripeness
Mess in Federal Courts, or How the Supreme Court Converted Federal Judges
into Fruit Peddlers, Institute on Planning, Zoning and Eminent Domain
7‑1 (1991). Before I discuss specific provisions of the bill,
I take this opportunity to bring some larger issues to the Subcommittee's
A. No Change in Substantive Law. H.R. 2372's purpose is to establish
avenues of access to federal courts in constitutional land use cases.
It does not alter the substantive law of Fifth Amendment takings or
any other constitutional provision. For example, some prior bills have
specified that, if a land use regulation causes a reduction in property
values by a certain arbitrary percentage (i.e., 25%, 30%), then the
landowner must be compensated. H.R. 2372 does nothing of this sort;
it proposes strictly procedural reforms. The bill clarifies those circumstances
in which property owners can obtain access to federal courts, so judges
can perform their sworn task to interpret the Constitution and decide
whether a land use regulation is a taking of property. To make H.R.
2372's procedural remedy clear, the bill does not amend 42 U.S.C. º
1983‑‑the statute creating a cause of action to remedy the
unconstitutional conduct of those acting under "color of State
law." Rather, H.R. 2372 proposes to amend the statutes conferring
jurisdiction in the United States district courts and the Court of Federal
Claims, for Section 1983 and takings claims against municipalities and
the federal government.
B. Solely Federal Claims. The court access benefits conferred by H.R.
2372 would apply only when a landowner raises a federal claim in federal
court. It would not cover situations where a property owner decides
to litigate a state law claim concurrently with a federal one. Under
this latter scenario, federal judges may utilize their traditional discretion
to abstain from jurisdiction.
C. No Change in Sovereign Immunity Case Law. H.R. 2372 does not tamper
with Section 1983 precedent regarding sovereign immunity. The Supreme
Court has established that, while Section 1983 contemplates law suits
against those acting "under color of State law," the Eleventh
Amendment renders state officials, acting in their official capacities,
immune from suit in federal court. See Scheuer v. Rhodes, 416 U.S. 232
(1974). However, municipalities and counties are not immune from suit
under Section 1983. Owen v. City of Independence, 445 U.S. 622, 636‑37
(1980); Monell v. Department of Social Servs., 436 U.S. 658‑69
(1978). Consequently, H.R. 2372's procedural reforms would apply to
landowners that bring suit against local governments for unconstitutional
takings. In short, the bill does not alter the sovereign immunity law
that has developed in the Section 1983 cases.
D. The Option of Court Access. In essence, the benefit of H.R. 2372
to property owners and to government agencies is simply to preserve
a meaningful option of court access that can test the scope of the takings
clause. Under the bill, when a landowner receives a final decision from
a land use agency and pursues a waiver and/or appeal therefrom, she
can either: (1) further negotiate with local officials or (2) sue. Based
on the reality of the regulatory process, in my opinion the vast majority
of landowners will opt for further negotiation and pursue less intensive
land uses compared to their initial development applications. Developers
do not hastily select litigation as their best opportunity to achieve
the maximum profit expectations in their land. They would much rather
spend funds to build their projects than pay legal fees. If a property
owner decides to litigate, H.R. 2372 by no means ensures that a taking
will be found and compensation awarded; a plaintiff would still need
to prove on the merits that a taking has occurred. This is a heavy burden
indeed, and would likely require proof that the land use agency has
denied all economically viable uses of the parcel at issue. See, e.g,
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Considering
this difficult evidentiary burden, it is doubtful that landowners will
rashly opt to pursue litigation over further negotiation. Nonetheless,
when a land use regulation may not permit the economically viable use
of land, or when local decision‑making procedures may require
the submission of repetitive proposals, I submit that the jurisdictional
requirements for resolving constitutional claims must be clarified.
This is H.R. 2372's overriding purpose.
E. No Fear of Crowding Federal Dockets. I understand that concerns have
been raised regarding the potential for H.R. 2372 to overload the federal
courts with takings cases. I believe these fears are unfounded for several
reasons. First, land use litigation already assumes an active position
on the federal docket; however, the parties and the courts typically
remain preoccupied with jurisdictional issues like ripeness. By specifying
when a takings claim is ripe, H.R. 2372 could result in more efficient
use of judicial resources, allowing litigants and judges to devote their
attention to the merits. Second, I do not think the bill would cause
a rush of property owners into the federal court. Quite simply, the
overwhelming disincentive to litigation is cost. This is especially
true in the takings arena, where it is so hard to win on the merits.
The primary objective of landowners, particularly those in the development
business, is to realize their projects and make a profit. They will
be far more inclined to negotiate with zoning officials rather than
antagonize them with needless litigation. Third, I am not convinced
that groundless prophecies of overwhelmed federal judges should excuse
a citizen's right to litigate meritorious federal claims in federal
court. Landowners should be secure in their right of access to a fair
and impartial federal tribunal when their property has been taken in
violation of the Fifth Amendment.
F. Clarify Ripeness Requirements for Other Constitutional Claims in
Land Use Cases. In land use cases concerning constitutional rights,
property owners often allege deprivations of procedural due process,
substantive due process and equal protection, in addition to claims
of taking without just compensation. The lower federal courts have utterly
failed to agree on the ripeness requirements for claims other than a
taking. Some of the federal courts proclaim that a ripe due process
or equal protection claim is governed by the same two‑part test
from Williamson County. See, e.g., River Park, Inc. v. City of Highland
Park, 23 F.3d 164 (7th Cir. 1994); Acierno v. Mitchell, 6 F.3d 970 (3d
Cir. 1993). Other judges, however, rule that due process and equal protection
claims are not subject to the ripeness requirement for a taking. See,
e.g., Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield,
907 F.2d 239 (1st Cir. 1990); Oberndorf v. City and County of Denver,
900 F.2d 1434 (10th Cir.), cert. denied, 498 U.S. 485 (1990). Indeed,
even the same circuit, in the same year, reached varying conclusions
on the issue. Compare Harris v. County of Riverside, 904 F.2d 497, 500‑501
(9th Cir. 1990) (procedural due process claim does not require the same
ripeness requirements as a takings claim) with Southern Pac. Transp.
Co. v. City of Los Angeles, 922 F.2d 498, 507 (9th Cir. 1990) ("[a]ll
as‑applied challenges to regulatory takings, whether based on
the just compensation clause, the due process clause, or the equal protection
clause, possess the same ripeness requirementà."). I do not believe
that ripeness standards should vary based on the type of constitutional
claim a plaintiff makes in a land use controversy. I support H.R. 2372
because it would level the playing field for all constitutional claims
asserted by property owners. The bill provides courts and litigants
with the certainty that the same ripeness requirements apply to claims
arising under due process, equal protection, and takings clauses.
H.R. 2372 SECTION 2: SECTION 1983 ACTIONS
A. In General. Section 2 of H.R. 2372 would amend 28 U.S.C. º 1343 subsection
(a)(3), the provision conferring original jurisdiction in the United
States district courts over actions under Section 1983.
B. Abstention. Ripeness is not the only problem litigants face when
they bring land use cases in federal courts. The opportunity for judges
to abstain from hearing cases that raise state law questions creates
additional barriers to federal jurisdiction. Federal courts may abstain
from hearing a land use case when state law is not clear (Pullman abstention),
when a state judicial proceeding is pending (Younger abstention), and
when complex issues in state regulatory programs require interpretation
(Burford abstention). I am aware that some opponents have criticized
the bill because they construe its abstention provisions as applying
in any Section 1983 case, regardless of the alleged constitutional violation.
However, this is not the intent of H.R. 2372. I believe that the Bill's
text is clear when it states (my emphasis is underscored):
"(c) Whenever a district court exercises jurisdiction under subsection
(a) in an action where the operative facts concern the uses of real
property, it shall not abstain from exercising or relinquish its jurisdiction
to a State court where no claim of a violation of a State law, right,
or privilege is allegedà." Abstention of jurisdiction can significantly
delay the resolution of constitutional claims by federal courts. See,
e.g., Laurence Tribe, American Constitutional Law, º 3‑29 at 201
(2d ed. 1988) (abstention doctrine "imposes substantial costs [on
litigants] through the delay of federal constitutional issues common
where a definitive state court resolution of the state issues in the
case must be obtained"). The Supreme Court has declared that "'abstention
from the exercise of federal jurisdiction is the exception, not the
rule.'" Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1984)
(citation omitted). Unfortunately, this rule has been turned on its
head in the takings arena. Federal courts routinely dodge the merits
of Fifth Amendment land use cases, and have invoked abstention doctrine
to achieve this result. I understand that the Department of Justice
fears that H.R. 2372 would "radically shift" authority over
local issues from state and local courts to federal courts because it
will modify abstention rules. I disagree. Justice O'Connor recently
wrote that the Supreme Court "has frequently acknowledged the importance
of having federal courts open to enforce and interpret federal rights."
Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028, 2045‑46
(1997) (O'Connor, J, concurring). H.R. 2372 comports with this principle,
and I do not believe it would work an injustice on abstention doctrine.
The bill would simply ensure that aggrieved property owners, raising
solely federal claims, have the right to have those claims resolved
in federal court. Should a landowner decide to allege a claim of state
constitutional, statutory, or common law pendent to the federal claim,
H.R. 2372 would not apply.
In my opinion, the bill is carefully drafted to accommodate a property
owner's right to access the federal courts with the historic discretion
of federal judges to certify questions of state law, and with the basic
constitutional precept recognizing state sovereignty. The following
tabulation best portrays the situations in which H.R. 2372 would (and
would not) apply, and depicts the bill's efforts to preserve a state
court's right to resolve issues of state or local law:
NATURE OF LITIGATIONAPPLICATION OF H.R. 2372
Property owner only alleges federal constitutional violations in federal
court land use action.H.R. 2372 would apply.
State law claim alleged pendent to federal claim in federal court.H.R.2372
would not apply. Federal judge has traditional discretion to accept
or reject pendent state claim.
Property owner or public agency brings parallel proceeding in state
court related to a simultaneous land use action in federal court (Younger
abstention).H.R. 2372 would not apply. If federal judge exercises traditional
discretion and abstains, all claims must be litigated in state court.
Federal claim rests on an unsettled issue of state law (Pullman abstention).H.R.
2372 would allow the federal judge to certify the question for state
Federal claim requires interpretation of complex state regulatory program
(Burford abstention). H.R. 2372 would allow the federal judge to certify
the question for state court interpretation.
The three branches of abstention relevant to H.R. 2372 are discussed
below in more detail.
(1) Younger Abstention. H.R. 2372 avoids the problem of so‑called
Younger abstention. Under this branch of abstention, a federal court
has the discretion to abstain from exercising its jurisdiction over
federal claims (or relinquishing it altogether and dismissing the federal
suit), where parallel state proceedings would apparently provide an
adequate forum for airing the constitutional claims. See Younger v.
Harris, 401 U.S. 37 (1971). While state courts have concurrent jurisdiction
to decide Section 1983 cases, see Felder v. Casey, 487 U.S. 131, 139
(1988), my understanding is that Younger abstention is beyond H.R. 2372's
scope because the bill does not contemplate institution of a parallel
state proceeding. Nevertheless, the bill makes this clear as follows
(my emphasis is underscored): "(c) Whenever a district court exercises
jurisdiction under subsection (a) in an action where the operative facts
concern the uses of real property, it shall not abstain from exercising
or relinquishing its jurisdiction to a State court in an action where
no claim of a violation of a State law, right, or privileged is alleged,
if a parallel proceeding in State court arising out of the same operative
facts as the district court proceeding is not pending."
(2) Pullman Abstention. Federal courts sometimes abstain jurisdiction
even in situations where a plaintiff asserts only federal claims. Under
the doctrine of Pullman abstention, when a "federal constitutional
claim is premised on an unsettled question of state law, the federal
court should stay its hand in order to provide the state courts an opportunity
to settle the underlying state‑law question and thus avoid the
possibility of unnecessarily deciding a constitutional question."
Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83 (1975) (construing
Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941)). Federal
courts have used Pullman abstention to avoid deciding land use controversies
wherein property owners allege infringements of the United States Constitution.
See, e.g., Pearl Inv. Co. v. San Francisco, 774 F.2d 1460, 1463‑64
(9th Cir. 1986), cert. denied, 476 U.S. 1170 (1986); Bob's Home Serv.,
Inc. v. Warren County, 755 F.2d 625, 628 (8th Cir. 1985). (6)
(3) Burford Abstention. Another branch of abstention calls for federal
courts to avoid construing "complex" state regulatory programs.
See Burford v. Sun Oil Co., 319 U.S. 315 (1943). Federal judges have
sometimes invoked Burford abstention to dodge the merits of land use
matters, even though constitutionally‑protected property rights
are at stake. See Front Royal & Warren County Indus. Park Corp.
v. Town of Front Royal, 945 F.2d 760, 764 (4th Cir 1991), cert. denied,
503 U.S. 937 (1992); 2BD Ltd. Partnership v. County of Commissioners
for Queen Anne's County, 896 F.Supp. 518 (D. Md. 1995). C. The Supreme
Court's College of Surgeons Opinion. With regard to the federal courts'
obligation to invoke their jurisdiction over takings claims and refrain
from abstention, the Subcommittee should consider the Supreme Court's
decision in City of Chicago v. International College of Surgeons, 522
U.S. 156 (1997), and the Seventh Circuit's opinion on remand, 153 F.3d
356 (7th Cir. 1998). In College of Surgeons, property owners filed both
state law and federal takings claims against local officials over their
application of a historic preservation ordinance in a manner that prohibited
building demolition. The plaintiffs initially brought suit in state
court; the municipal defendants then sought to remove the case to federal
court, arguing that the federal court had original jurisdiction over
the takings claim and supplemental jurisdiction over the state law claims.(7)
Plaintiffs argued that the federal courts could not hear the case, but
the Supreme Court disagreed.
In her majority opinion Justice O'Connor concluded, "a case containing
claims that local administrative action violates federal law à is within
the jurisdiction of federal district courts."(8) Moreover, Justice
O'Connor sanctioned the ability of federal judges to delve into the
underlying factual record that supports a particular local land use
decision. The Court recognized that there is nothing in the United States
Constitution or any federal statute to "suggest[ ] that district
courts are without supplemental jurisdiction over claims seeking à review
of local administrative determinations" based on a factual record.(9)
Indeed, the vast majority of the Justices expressly rejected the suggestion
that "federal courts can never review local administrative decisions."(10)
In short, it is wholly appropriate for federal judges to review the
conduct of local officials and ensure adherence to Fifth Amendment principles.
Delaney and Desiderio, 31 The Urban Lawyer at 199. Thus, the Supreme
Court ruled that a case containing claims that local administrative
action violate federal law, along with state law claims for on‑the‑record
review of the local agency's administrative findings, can be removed
to federal court by the municipality. The basis for such removal is
that the federal and state law claims could have been brought in federal
court to begin with. If a municipality can remove federal (and supplemental
state) claims to federal court, then necessarily takings plaintiffs
must be allowed to bring their claims in federal court from the start.
The Supreme Court then remanded for the lower court to determine if
abstention was appropriate. The Seventh Circuit refused to abstain under
any appropriate doctrine: The Seventh Circuit recognized that "the
doctrine of abstention is 'an extraordinary remedy and narrow exception
to the duty of a District Court to adjudicate a controversy properly
before it' and may be invoked only in those 'exceptional circumstances'
in which surrendering jurisdiction 'would clearly serve an important
countervailing interest.' "(11) While the ordinance at issue "reflect[ed]
important local policy concerns regarding the development and preservation
of à real estate,"(12) the Seventh Circuit easily found that the
matter before it could be decided on the merits.
Delaney and Desiderio, 31 The Urban Lawyer at 200. To conclude the Seventh
Circuit's treatment of City of Chicago on remand confirms H.R. 2372's
"fundamental proposition that federal courts have an obligation
to hear federal takings cases premised on the conduct of local officials."
Id. D. Certification of State Law Question. I favor the Bill's mechanism
through which a federal court can certify an unsettled but significant
question of state law to the highest appellate court of the pertinent
state to assist in resolving whether a land use agency has violated
the federal Constitution. Professor Tribe recognizes: Delay can be substantially
diminished under a promising alternative to Pullman abstention, allowing
the direct submission of state law question to an authoritative state
tribunal, thereby removing the need to file a separate state action
and speeding ultimate disposition of the case; a significant number
of states have passed statutes allowing such certification. See generally
Note, Certification Statutes: Engineering a Solution to Pullman Abstention
Delay, 59 Notre Dame L. Rev. 1339 (1985); see also Field, The Abstention
Doctrine Today, 125 U.Pa.L. Rev. 590, 605‑09 (1977). Tribe, supra,
º 3‑30 at 201 n. 18. The bill's certification
provision thus respects local decisionmaking processes in particular
and state sovereignty in general, insofar as state courts are provided
the opportunity to interpret matters of state and local law. While certification
can expedite resolution of a Section 1983 suit, I submit that the mechanism
should not be blithely invoked to delay consideration of the merits.
H.R. 2372 wisely proposes that a federal district court should not certify
a question unless the state law issue will "significantly affect
the merits of the injured party's federal claim." The apparent
intent here is that only unsettled state questions essential for resolving
the federal Section 1983 claim are susceptible for certification. The
second check on certification is that the state law question must be
patently unclear. The bill's text tracks the Supreme Court's sentiments
in Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236‑37 (1984),
and thus states that certification should not be permitted unless the
state law question is "patently unclear."
H.R. 2372 would have no effect on state law certification procedures
already in existence, nor would it create any certification mechanism.
Accordingly, questions could not be certified to the highest appellate
courts in those states that lack a certification procedure.(13) However,
even in these jurisdictions, federal courts hearing diversity cases
decide state law issues all of the time, so I do not believe that H.R.
2372 would undermine the authority of local officials or impair principles
of federalism. For example, federal courts in states without formal
certification procedures routinely interpret local statutes and ordinances
to assess their constitutionality on the merits.(14) In any event, federal
courts in these states are well‑qualified to decide the ultimate
issue of whether local officials have denied property owners federal
E. Ripeness. As noted earlier (supra pp. 2‑9), the ripeness rules
spawned by Williamson County raise significant impediments to federal
court resolution of takings claims on the merits. To reiterate, Williamson
County requires two ripening elements for a takings claim: (1) a final
agency decision on the application of the regulations at issue to the
particular land in question; and (2) exhaustion of state court compensation
remedies. H.R. 2372 addresses both prongs of Williamson County. (1)
Final Decision Prong. Proposed new Section 1343(e) provides that, when
a claimant suffers an "actual and concrete injury" from a
"definitive decision regarding the extent of permissible uses on
the property that has allegedly been infringed or taken," the Fifth
Amendment claim would be ripe. Williamson County is the patent inspiration
for the proposed text. According to the Supreme Court, a takings challenge
ripens when "the initial decisionmaker has arrived at a definitive
position on the issue that inflicts an actual, concrete injury."
473 U.S. at 193. The bill further amplifies the "final decision"
requirement in three respects, as discussed below: (a) on‑site
uses; (b) one meaningful application; and (c) futility.
(a) On‑Site Uses. The first clarification, in proposed new Section
1343(e)(2)(A), states that a "final decision" exists when
a person acting under color of State law "expresses a definitive
decision regarding the extent of permissible uses on the property...without
regard to any uses that may be permitted elsewhere" (emphasis supplied).
I believe this language would simply confirm the recent holding in Suitum
v. Tahoe Regional Planning Agency, 117 S.Ct. 1659 (1997). The Court
unanimously ruled that a property owner did not need to sell her transferable
development rights ("TDRs") to yield a ripe takings claim,
but never reached the merits of whether a taking had, in fact, occurred.
TDRs, by definition, contemplate property uses elsewhere, apart from
the subject parcel; they are rights that the owner of the regulated
parcel can sell to another landowner to permit more intense development,
that would not otherwise be allowed, on the property receiving the TDRs.
For ripeness purposes only, H.R. 2372's intent is to make clear that
a final decision regarding land uses on the property at issue is all
that is required, without reference to development on other lands. The
"on the property" language does not address the current debate
in federal courts regarding whether, as a substantive matter, the relevant
"denominator" in the takings fraction is the parcel as a whole
or the portion of the tract burdened by land use regulation.(15)
(b) One Meaningful Application. Proposed new Section 1343(e)(2)(B) further
clarifies the "final decision" requirement. In MacDonald,
Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986), a case
involving denial of a single subdivision application, the Supreme Court
decided that a takings claim is unripe without a "final and authoritative
determination of the type and intensity of development legally permitted
on the subject property." Following this pronouncement, property
owners aggrieved by government action have been plagued by the following
question: How many proposals or applications must they submit to a land
use body before a takings claim ripens? For example, in Southview Assocs.
v. Bongartz, 980 F.2d 84, 92 (2d Cir. 1992), cert. denied, 507 U.S.
987 (1993), the court decided a takings claim was not ripe because the
landowner "did not attempt to modify the location of the units
or otherwise seek to revise its application." The court failed
to decide how many reapplications would be necessary to reach the merits.
In Schulze v. Milne, 849 F.Supp. 708 (N.D. Cal. 1994), aff'd in part,
rev'd in part on other grounds, 98 F.3d 1346 (9th Cir. 1996), property
owners submitted a total of 13 revised plans over three years to renovate
their home. Each time they submitted a plan "in compliance with
all applicable zoning laws," local officials nonetheless "refused
to approve the plan, and instead informed plaintiffs that there were
additional requirements, not found in any zoning or other statutes,
which plaintiffs had yet to meet." 849 F.Supp. at 709. Del Monte
Dunes at Monterey, Ltd. v. City of Monterey, 119 S.Ct. 1624 (1999),
discussed earlier, typifies the conundrum that many property owners
confront when they must submit application after application to obtain
development approvals. The bill would bring order to the chaos surrounding
the reapplication requirement. H.R. 2372 uniformly calls for submission
of one development application to a zoning body, and pursuit of one
available waiver and/or appeal therefrom. I understand that this provision
is intended to codify the body of cases requiring that a property owner
make "one meaningful application" to the relevant land use
decisionmaking body to ripen a constitutional claim.(16) It is interesting
that the Ninth Circuit, a court typically sympathetic to local governments
in constitutional land use cases, has pioneered the "one meaningful
application" rule. See Gregory Overstreet, Update on the Continuing
and Dramatic Effect of the Ripeness Doctrine on Federal Land Use Litigation,
20 Zoning and Planning Law Report 21‑22 (March 1997). I am aware
that as this legislation moved through the House last Congress two additional
requirements were added. Under applicable circumstances, an agency or
board may provide, with the disapproval of an application, a written
explanation that clarifies the use, density, or intensity of development
of the property that would be approved, with any conditions that might
also apply. The party seeking redress must resubmit another meaningful
application taking into account the terms of the disapproval. Under
these circumstances, only upon rejection of this further application
(and pursuit of additional processes as outlined in the bill) has a
final decision occurred. In addition, if the applicable state statute
or ordinance provides for review of the application by elected officials,
a final agency decision has only occurred if the party seeking redress
has also applied for but been denied by such officials in addition to
the initial application and denial. While I understand the purposes
of these additions, I prefer that H.R. 2372's goal be to render a decision
ripe after one meaningful development proposal is submitted to a land
use agency, and a waiver or appeal is pursued from a denial of the application.
As one commentator notes, "[t]he reapplication requirement forces
a property owner to concede away portions of his or her constitutional
rights in order to gain access to the federal courts." Gregory
Overstreet, supra, 20 Zoning and Planning L. Rep. at 22. Any additional
reapplication process forces property owners to bargain away valuable
interests in the development of their land in order to get local approval.
H.R. 2372 should remedy this problem by giving the landowner the option
to pursue litigation after he has made one meaningful application to
a land use agency, without risking a tortuous process of re‑submission,
rejection, and more re‑submission. As I previously advocated:
[T]he determination of when "enough is enough" [for ripeness
purposes] should not be left for the local governments to decide. Rather,
it should be for the landowner or developer who must weigh the risks
of litigation versus another application proposal to decide whether
in fact to contest the decision rendered after the first application.
APA Brief at 13. H.R. 2372 is consistent with this
judgment. The bill preserves the option for property owners to choose
federal court resolution of their constitutional grievances, rather
than meander through an open‑ended game of reapplication where
land use officials play dual roles as both player and referee.
(c) Futility. The bill offers an additional gloss on the "one application"
requirement: following Section 1343(e)(2)(B), the proposed text provides
that a property owner need not make one application, or pursue a waiver/appeal
therefrom, where "the prospects for success are reasonably unlikely
and intervention by the district court is warranted to decide the merits."
This provision would codify the so‑called "futility"
exception to ripeness. See Gilbert v. City of Cambridge, 932 F.2d 51,
61 n. 12 (1st Cir. 1991) (futility exception applies "where the
degree of hardship that would be imposed by waiting for the permit process
to run its course is so substantial and severe, and the prospects of
obtaining the permit are so unlikely, that the property may be found
to be meaningfully burdened and the controversy concrete enough to warrant
immediate judicial intervention"); Kinzli v. City of Santa Cruz,
818 F.2d 1449, amended, 830 F.2d 968 (9th Cir. 1987), cert. denied,
484 U.S. 1043 (1988) (takings claim ripened after plaintiff made one
application and sought one variance and both were denied, because further
reapplications would be futile). In the Suitum case, I urged the Supreme
Court to establish a futility exception similar to that proposed in
H.R. 2372: It is respectfully submitted that the "futility"
exception should always apply after one application has been made for
a land use approval or administrative reliefà.[T]he finality requirement
should be applied reasonably to recognize that a local government's
position on the nature and intensity of development can be determined
from factors other than repeated applications and denials.
APA Brief at 21. While I concur that the futility exception should
be codified, it is significant that the language in H.R. 2372 only compels
property owners to pursue available avenues for appeal and/or waiver.
It is appropriate that H.R. 2372 rejects cases like Shelter Creek Dev.
Corp. v. Oxnard, 838 F.2d 375, 379 (9th Cir. 1988), which required an
application for an unavailable variance to ripen a takings claim. I
thus endorse the bills text which provides: "The party seeking
redress shall not be required to apply for an appeal or waiver described
in subparagraph (A) if no such appeal or waiver is available, if it
cannot provide the relief requested, or if the application or reapplication
would be futile."
(2) State Exhaustion Prong. The second prong of Williamson County requires
claimants to exhaust available state compensation remedies before receiving
a federal hearing on the merits of a taking. Williamson County, 473
U.S. at 194‑95. In my opinion, however, a federal court charged
with the responsibility of determining constitutional violations is
as qualified as a state court to decide when the Fifth Amendment has
been violated. Indeed, a federal court is better able to make this decision
where, as in the scenario covered by H.R. 2372, a citizen asserts solely
federal claims. Santa Fe Village Venture v. City of Albuquerque, 914
F.Supp. 478 (D.N.M. 1995), illustrates the serious problems that occur
when plaintiffs in takings cases must run the gauntlet between federal
and state courts. In that case, the local city council established a
building moratorium to preclude any development on lands near a national
monument site. Plaintiff had an option to purchase land within areas
subject to the moratorium, but never exercised that option because of
the total land use restriction. Rather, it filed a lawsuit in federal
district court seeking just compensation from the local government for
its inability to develop the property. That first suit was dismissed
on ripeness grounds, because the property owner never sought a compensation
remedy in state court. In other words, exhausting state compensation
procedures was necessary to make a federal claim ripe for resolution.
The property owner then filed a second action for inverse condemnation
in state court without raising any federal claims. The state court dismissed
this complaint for lack of standing. After exhausting state proceedings,
plaintiff then filed a third suit in federal court under Section 1983,
alleging only deprivations of federal rights (including due process,
equal protection, and takings). The United States District Court for
the District of New Mexico then dismissed this federal action as unripe,
because the federal claims were not raised in state court‑‑even
though the state court already decided that the property owner lacked
standing to bring its action there.
In this regard it is important to consider the interplay between the
state exhaustion prong for "compensation ripeness," and the
concept of res judicata. Res judicata, or claim preclusion, provides
that "a final judgment on the merits bars further claims by parties
or their privies on the same cause of action." United States v.
Mendoza, 464 U.S. 154, 158 n.3 (1984). This doctrine precludes parties
from re‑litigating claims "that were or could have been raised"
in an initial litigation. Kremer v. Chemical Constr. Corp., 456 U.S.
461 n. 6 (1982) (emphasis added). A federal court must afford res judicata
effect to a final judgment rendered in a prior state court proceeding.(17)
The concept is extremely pertinent here. If a property owner exhausts
state proceedings to obtain a compensation remedy but receives no award,
then Williamson County would deem her federal taking claim ripe and
allow her to litigate the alleged constitutional violation in United
States district court. A federal judge, however, could still preclude
all federal court access under res judicata, because the property owner
could have raised her Section 1983 claim for federal relief in the earlier
state proceeding. Accordingly, even if the property owner strictly adheres
to Williamson County, her failure to raise a federal constitutional
claim in state court could destroy her chances from ever having a federal
judge address the Fifth Amendment claim. I do not think that property
owners should be forced to litigate federal takings claims in state
court, yet this is the ironic effect of the synergy between ripeness
and res judicata. In my opinion, H.R. 2372 resolves this tension(18)
as well as the problem identified by the Tenth Circuit in Wilkinson
v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319 (10th Cir. 1998). The
court effectively ruled that the property owner, who initially filed
its takings claim in state court, could never have a federal judge hear
the takings claim because of the preclusion doctrines. As the court
wrote, "Williamson [County's] ripeness requirement may, in actuality,
almost always result in preclusion of federal claimsà.It is difficult
to reconcile the ripeness requirement of Williamson County with the
laws of [issue and claim preclusion]." Id. at 1325 n. 4.
I believe that the cases requiring a plaintiff to seek compensation
in state court "effectively drain the ripeness rules of any meaning.
They prevent federal courts from ever reaching the final decision issue
because, under this view, a takings plaintiff must seek compensation
in state court until that court clearly says it will not entertain a
compensation remedy." APA Brief at 24. In short, I wholly concur
with H.R. 2372's objective to remove the state exhaustion requirement
from the ripeness landscape.
H.R. 2372 SECTIONS 3 and 4: TAKINGS CLAIMS AGAINST THE FEDERAL GOVERNMENT.
A. In General. H.R. 2372 Section 3 proposes amendments to 28 U.S.C.
º 1346. This provision confers concurrent jurisdiction in the United
States district courts and the United States Court of Federal Claims
for claims against the federal government, including Fifth Amendment
takings, where $10,000 or less is at stake. Section 4 proposes amendments
to 28 U.S.C. º 1491, the Tucker Act provision conferring exclusive jurisdiction
in the United States Court of Federal Claims, for claims against the
federal government (including takings) for more than $10,000. I am mindful
that, considering the expense of takings litigation, Section 1346 is
rarely invoked as a practical matter. However, I believe it is correct
to amend both statutes to achieve consistency. The bill's reform measures
should clarify court access to any takings claim against the federal
government, whatever the amount.
B. Abstention. Sections 3 and 4 concern federal law suits premised on
unconstitutional takings committed by federal agencies, under federal
laws. For example, these sections would address "takings"
by the U.S. Army Corps of Engineers under Section 404 of the federal
Clean Water Act; the U.S. Fish and Wildlife Service under the federal
Endangered Species Act; the U.S. Environmental Protection Agency under
federal Superfund; or the Department of Interior under the federal Surface
Mining and Control Reclamation Act. In these actions, no person would
be acting under color of State law, and no parallel state proceedings
could be instituted. Abstention thus is not an issue when property owners
bring federal takings claims against federal actors.(19) For this reason,
H.R. 2372 Sections 3 and 4, unlike Section 2, do not address the abstention
C. Ripeness. In contrast, ripeness is an issue that federal courts have
addressed in federal takings cases.(20) See, e.g., Good v. United States,
1997 U.S. Claims LEXIS 179, at *64‑*71 (Aug. 22, 1997) (discussing
the re‑application requirement and futility exception, in case
concerning wetlands permitting and endangered species issues). Federal
courts have also addressed the issue of whether a takings claimant can
avoid seeking a permit or variance from federal regulations under the
"futility" exception. See, e.g., Whitney Benefits, Inc. v.
United States, 18 Cl. Ct. 394, 407 (1989), aff'd, 926 F.2d 1169, 1171
(Fed. Cir. 1991), cert. denied, 502 U.S. (1991) (in context of facial
challenge, takings occurred upon enactment of federal statute because
it would have been futile to apply for permit; no opinion regarding
same issue in context of as applied challenge); Broadwater Farms, supra,
35 Fed. Cl. at 236 (federal takings claim ripe where it would have been
futile to apply for an "after‑the‑fact" wetlands
permit from the Corps). For these reasons, the bill properly incorporates
ripeness reform measures for federal takings claims in new Sections
3 and 4, similar to those stated in Section 2 for Section 1983 actions.
I propose that my suggested changes to the bill regarding "one
meaningful application" and "futility," discussed earlier
on pages 21‑24 and 24‑25, respectively, also be incorporated
where appropriate in Sections 3 and 4 dealing with federal takings actions.(21)
H.R. 2372 SECTION 5: DUTY OF NOTICE TO OWNERS
This section requires a Federal agency to provide notice to property
owners explaining their rights and the procedures for obtaining any
compensation that may be due to them whenever that agency takes an action
affective their private property. The goal of this section is both to
provide property owners with the information they need to know to defend
their rights, but also to force federal agencies to be more aware of
the impact of their regulatory decisions. I believe this section will
create a dual benefit of a federal government less likely to take property
and a public better able to keep the government in check.
The ripeness rules developed by the courts have caused hardship to property
owners who seek court access so their constitutional claims can be heard.
Williamson County and its progeny should no longer be misused to block
takings cases where concrete and ascertainable injuries flow from final
land use decisions. The Supreme Court has declared that "the takings
clause of the Fifth Amendment [is] as much a part of the Bill of Rights
as the First or Fourth Amendment, [and] should not be relegated to the
status of a poor relationà." Dolan v. City of Tigard, 512 U.S.
‑‑‑, 114 S.Ct. 2309, 2320 (1994). I believe that H.R.
2372 would help restore the takings clause to its deserved place of
importance, and ensure that federal courts apply the takings clause
to test the constitutional parameters of government action.
1. Agins v. Tiburon, 447 U.S. 255, 260 (1980) (takings claim challenging
zoning ordinance held unripe, because property owners had not yet submitted
2. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1011‑13
(1992) (had a "special permit procedure" to the Coastal Council,
for the purpose of determining permanent deprivations of viable land
uses, been available to petitioner, he would have been required to pursue
those avenues for a ripe takings claim).
3. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.
264, 297 (1981) (court rejects facial challenge to Surface Mining Control
and Reclamation Act, because "[t]here is no indication in the record
that appellees have availed themselves of the opportunities provided
by the Act to obtain administrative relief by requesting either a variance
... or a waiver ...."; thus, takings claim "not ripe for judicial
resolution"); Williamson County, 473 U.S. at 192 (1985) (takings
claim not ripe because developer had not sought variances from zoning
4. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348
(1986) (property owners submitted only one subdivision proposal rejected
by a zoning body; as alternative uses of the site existed other than
the one proposed, the takings claim was unripe because the zoning body
had not yet rendered "a final and authoritative determination of
the type and intensity of development legally permitted on the subject
property"); Penn Central Transp. Co. v. New York City, 438 U.S.
104, 136‑37 (1978) (property owners had not sought approval for
any plan other than constructing a 50‑foot office building above
Grand Central Terminal; thus it was unclear whether the Landmarks Preservation
Commission would deny approval for all uses).
5. However, the opinions expressed herein are my own.
6. State law issues can potentially be relevant in the context of federal
takings claims. See, e.g., Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1025‑27 (1992) (state nuisance law can define constitutionally‑protected
property interests); Nollan v. California Coastal Comm'n, 483 U.S. 825,
857 (1987) ("state law is the source of those strands that constitute
a property owner's bundle of property rights"); Broadwater Farms
Joint Venture v. United States, 35 Fed. Cl. 232, 240 (1996) (relying
on Lucas, and recognizing that state law treats "each lot as a
separate parcel for tax purposes"). At least theoretically, Pullman
abstention could arise in the context of a federal takings claims if
pertinent and crucial issues of state property law are "unsettled."
7. The supplemental jurisdiction statute provides that "in any
civil action of which the district courts have original jurisdiction,
the[y] shall have supplemental jurisdiction over all other claims that
à form part of the same case or controversy." 28 U.S.C. º 1367.
8. Id. at 528‑29.
9. Id. at 533.
10. Id. at 532.
11. City of Chicago, 153 F.3d at 360.
12. Id. at 362.
13. Research conducted during the summer of 1997 showed that 12 states
lacked certification procedures at that time‑‑namely, Arkansas,
California, Illinois, Missouri, Nevada, New Jersey, North Carolina,
Pennsylvania, Tennessee, Utah, Vermont, and Virginia.
14. See, e.g., Berry v. City of Little Rock, 904 F.Supp. 940 (E.D.
Ark. 1995) (interpreting city housing code ordinance); Golden Gate Hotel
Ass'n v. City and County of San Francisco, 864 F.Supp. 917 (N.D. Cal.
1993) (city residential hotel ordinance); Independent Coin Payphone
Ass'n, Inc. v. City of Chicago, 863 F.Supp. 744 (N.D. Ill. 1994) (city
franchise and zoning ordinances); Bender v. City of St. Ann, 816 F.Supp.
1372 (E.D. Mo. 1993) (Missouri city's commercial sign ordinance); Carpenter
v. Tahoe Regional Planning Agency, 804 F.Supp. 1316 (D. Nev. 1992) (zoning
ordinance of California/Nevada compact agency); Crow‑New Jersey
32 Ltd. Partnership v. Township of Clinton, 718 F.Supp. 378 (D.N.J.
1989) (New Jersey township's land use ordinance); South Shell Inv. v.
Town of Wrightsville Beach, 703 F.Supp. 1192 (D.N.C. 1988) (North Carolina
town's zoning ordinance); Bloomsburg Landlords Ass'n v. Town of Bloomsburg,
912 F.Supp. 790 (M.D. Pa. 1995) (Pennsylvania town's ordinance regulating
rental units); Knights of the Klu Klux Klan v. Martin Luther King, Jr.
Worshippers, 735 F.Supp. 745 (M.D. Tenn. 1990) (local parade permit
ordinance); Katsos v. Salt Lake City Corporation, 634 F.Supp. 100 (D.
Ut. 1986) (airport authority ordinance); Keleher v. New England Tel.
& Tel. Co., 755 F.Supp. 117 (D. Vt. 1991) (ordinance of Vermont
municipality); Stuart Circle Parish v. Board of Zoning Appeals of the
City of Richmond, 946 F.Supp. 1225 (E.D. Va. 1996) (court would not
avoid substantive interpretation of zoning code on abstention grounds).
15. This substantive takings issue has yet to be decided by the Supreme
Court. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016
n. 7 (1992).
16. See, e.g., Eastern Minerals Int'l, Inc. v. United States, 36 Fed.
Cl. 541, 548 (1996) ("Each plaintiff must satisfy the threshold
requirement of a single meaningful application" to yield a ripe
takings claim); Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1232
(9th Cir.), cert. denied, 115 S.Ct. 193 (1994) (property owners must
submit "one formal development plan"); Unity Ventures v. Lake
County, 841 F.2d 770, 775 (7th Cir. 1988).
17. See 18 Wright, Miller & Cooper, Federal Practice and Procedure,
º 4466 at 30,042 ("Res judicata doctrine cannot escape the federalistic
problems that permeate our overlapping systems of courts and substantive
rights"). See also id. ºº 4469‑4471 (federal courts supplying
res judicata effect to state court decisions).
18. The related doctrine of collateral estoppel, or issue preclusion,
requires a federal court to avoid relitigating issues that were actually
decided by, and necessary to, the judgment of a state court. See Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979). Like res judicata,
collateral estoppel's relationship to Williamson County prong 2 can
prevent a property owner from ever litigating a federal taking claim
in federal court. See, e.g. Dodd v. Hood River County, 59 F.3d 852,
861‑62 (9th Cir. 1995) (although property owner exhausted compensation
remedy under Oregon law, court remands for consideration as to whether
related doctrine of collateral estoppel bars any further litigation
in federal court).
19. For example, in the myriad reported Section 404 takings cases brought
against the Corps, issues of state property law have not arisen to the
extent that abstention has become a concern.. See, e.g., Florida Rock
Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994); Loveladies
Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Tabb Lakes
Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993); Broadwater Farms,
supra, 35 Fed. Cl. 232 (1996); Bowles v. United States, 31 Fed. Cl.
37 (1994); Formanek v. United States, 26 Cl. Ct. 332 (1992); Ciampitti
v. United States, 22 Cl. Ct. 332 (1991) Deltona Corp. v. United States,
657 F.2d 1184 (Ct. Cl. 1981); Jentgen v. United States, 657 F.2d 1210
(Ct. Cl. 1981).
20. Exhaustion of remedies also can potentially delay federal courts
from addressing the merits of federal takings claims. See, e.g., Ruckelshaus
v. Monsanto Co., 467 U.S. 986, 1016‑19 (1984) (provisions of Federal
Insecticide, Fungicide and Rodenticide Act "implement[ ] an exhaustion
requirement as a precondition to a Tucker Act claim"); Burlington
Northern R.R. Co. v. United States, 752 F.2d 627 (Fed. Cir. 1985) (takings
claim dismissed without prejudice because owner failed to apply for
federal permit and government argued permit could be granted if sought).
Cf. Whitney Benefits, Inc. v. United States, 752 F.2d 1554, 1558 (Fed.
Cir. 1985) (pursuit of a coal exchange under 30 U.S.C. º 1260(b)(5)
is not a remedy that must be exhausted before bringing suit under Tucker
21. The full text of Sections 3 and 4 with my suggestions are set forth
at pp. 33‑35.
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