Takings law – exhausted or just exhausting?

The Supreme Court has granted certiorari this term to re-consider the ripeness requirement for a claim for just compensation, first articulated in in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985)Knick v. Town of Scott, Pennsylvania, No. 17-647.  Interestingly, the Court decided to go right to the jugular, deciding whether the ripeness rule should be abrogated entirely, instead of nibbling at the edges to decide whether the rule applied to physical/facial takings.

Like much of takings law, the ripeness rule is a mess.  As with most takings jurisprudence, the analysis starts innocently enough, then breaks down as it’s applied.  The logic behind the ripeness rule is that you can’t claim a violation of federal takings law through a civil rights claim seeking just compensation for a taking until you seek compensation from the state, which is allegedly taking the property. The claim isn’t ripe until you’ve asked for that compensation and been denied.

There’s a certain amount of sense in that reasoning. The problem is that as a result, the plaintiff never gets her claim heard in federal court, and might never get it heard by any court at all. The petitioner’s brief (represented by the Pacific Legal Foundation) explains why this happens. This result is fundamentally unfair, and has caused various individual Justices previously to call for a review of the Williamson ripeness rule.

Interestingly, in its amicus brief, the Solicitor General tries to cut the baby in half.  He supports continuation of the ripeness concept, requiring a denial of compensation by the state. But then he comes up with two ideas as to how the Court could tweak the rule to allow a plaintiff to get relief, either by filing the state inverse condemnation claim in federal court, or just making an exception to the civil rights statute allowing pursuit of a claim to enforce the right to just compensation before compensation has been denied.

If the Supreme Court completely abrogates Williamson, this could be a real game changer. Previously, and particularly in Maine, winning a takings claim, particularly a regulatory takings claim, was nigh on impossible, for various reasons. If plaintiffs are allowed to go directly to federal court, not only is the expense of pursuing a takings claim significantly reduced, but the odds of prevailing on the merits can only go up.

Stay tuned!

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