On March 5, 2018, the U.S. Supreme Court granted certiorari in Knick v. Township of Scott (Case No. 17-647) to address the requirement, established in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985), that landowners must first unsuccessfully seek compensation in state court before bringing a Fifth Amendment takings claim in federal court.  No other category of plaintiffs desiring to vindicate their constitutional rights under 42 U.S.C. § 1983 is subject to this onerous requirement.

As aptly summarized by friend and fellow ABA Section of State and Local Government Law colleague, Robert H. Thomas, in his excellent blog, inversecondemnation.com, the rule puts landowners in the following “ripeness Catch-22”:

“try vindicating a property owner’s federal constitutional right in federal court in the first instance, and the federal court will tell you that you are too early — a regulatory taking is of no constitutional moment until the state regulators have made a final decision, and the state courts have denied compensation (even if this means the state hasn’t offered compensation and in state court denies it owes any). But bring a federal action after a state court inverse condemnation case, and the federal court will tell you that you are too late — you already litigated your federal claim, even if you expressly didn’t.”

The case arose out of an ordinance that regulates the existence, operation, and maintenance of  private property containing burial grounds (this is an issue because Pennsylvania apparently has no state law prohibiting so-called “backyard burials” on private property).  In addition, the ordinance requires all cemeteries, public or private, to be kept open and accessible to the public and authorizes the town’s code enforcement officers to enter any property within the town to determine the existence and location of any cemetery.

Town officials attempted to apply the ordinance’s requirements to Rose Mary Knick, who owns 90 acres that are bounded on all sides by stonewalls, fences, and other markers, including various “No Trespassing” signs.  Ms. Knick sued in state court to challenge the ordinance, including a physical takings claim, but the court refused to rule on her claims because the town withdrew its notice of violation and stayed enforcement of the ordinance.  The state court also held that her claims would “not be in a proper posture” for a decision until the town filed a civil enforcement action against her.  Ms. Knick then sued in federal court, raising facial and as-applied takings claims, but the district court dismissed, holding that her claims were not ripe under Williamson County until she filed a new regulatory takings claim in state court.  The Third Circuit upheld the district court’s dismissal of both takings claims for lack of ripeness under Williamson County.

The Court agreed to hear oral argument in Knick to address the following question:

“Whether the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985), requiring property owners to exhaust state court remedies to ripen federal takings claims, as suggested by Justices of this Court? See Arrigoni Enterprises, LLC v. Town of Durham, 136 S. Ct. 1409 (2016) (Thomas, J., joined by Kennedy, J., dissenting from denial of certiorari); San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 348 (2005) (Rehnquist, C.J., joined by O’Connor, Kennedy, and Thomas, JJ., concurring in judgment).”

Williamson County’s ripeness requirement has been widely criticized for years, including by various of the Court’s own members, and the criticism over its harsh rule is plainly warranted.  In addition, given that the nation’s courts are in great conflict over whether the rule applies to facial physical and regulatory takings, it is time for the Court to definitively settle the issue.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.