Real Estate & Property Law

New Cert Petition on Penn Central and (Yet Again) Williamson County

By Robert Thomas (inversecondemnation.com)

When four justices of the U.S. Supreme Court tell you that a case needs to be overruled, and district judges acknowledge the case "has led to a number of serious problems," you know something is seriously wrong. Yes, we're back to Williamson County.

In San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005) four Justices noted the ripeness rules of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) produce absurd results and deny federal court review of federal constitutional rights. Chief Justice Rehnquist wrote:

Finally, Williamson County's state-litigation rule has created some real anomalies, justifying our revisiting the issue... I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic... In an appropriate case, I believe the Court should reconsider whether plaintiffs asserting a Fifth Amendment takings claim based on the final decision of a state or local government entity must first seek compensation in state courts.

Already this term, two cert petitions have suggested to the Court that the "appropriate case" is here. See Braun v. Ann Arbor Charter Township, No. 08-250 (cert. petition filed Aug. 25, 2008) and Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008).  A third was filed today. Charles A. Pratt Constr. Co., Inc. v. California Coastal Comm'n, No. ____ (cert. petition filed Nov. 18, 2008).  Download the petition here.

The petition also asks the Court to clarify that the Penn Central test for regulatory takings -- which applies whenever a regulation does not effect a categorical taking:

1. In Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978), the Court held that claims that government land regulation effect a regulatory taking in violation of the 5th Amendment must be decided ad hoc based on their individual facts.

Question: Consistent with this constitutional baseline, can the California courts hold as a matter of law that regulations cannot be a taking even though they allow no more than 20% of a parcel (and likely far less than that) to be put to viable private use?

2. In Williamson County Reg. Plan. Commn, v. Hamilton Bank, 473 U.S. 172, 186 (1985), the Court held that a regulatory taking claim was not ripe for litigation until the regulator had reached a "final" determination of what use would be allowed on the property.

Question: When (a) a property owner undergoes an eight year administrative process, including environmental evaluation of ten different ways to use the property, but (b) the regulatory agency rejects all alternatives, then (c) has there been sufficient basis for an evidentiary showing that no reasonable use will be allowed, in order to demonstrate "finality" for 5th Amendment ripeness purposes?

Petition at i (emphasis added). The decision of the California Court of Appeals is here, and the post about the arguments for rehearing is here.

Full post as published by inversecondemnation on November 18, 2008 (boomark / email).