Supreme Court to Decide Another Major Property Rights Case

The U.S. Supreme Court’s 2018-19 Term is shaping up as a most consequential one when it comes to the intersection of environmental regulation and constitutionally-protected property rights. Today the Court agreed to hear and decide an important “regulatory takings” case: Knick v. Township of Scott, Pennsylvania, No. 17-647. (Recently, Legal Planet colleague Holly Doremus wrote about another important environmental case the justices have agreed to resolve, one involving the federal government’s ability to designate “critical habitat” for species listed under the Endangered Species Act in the face of objections from affected private property owners; that case, Weyerhauser v. U.S. Fish and Wildlife Service, will now be argued before the Court in October.)

The front facade of the Supreme Court of the United States.

The newly-granted Knick case raises a controversial procedural issue of takings law: whether the Supreme Court should reconsider its “ripeness” doctrine, first articulated by the justices in their 1985 decision, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County. In that case, the Court announced that federal courts should not resolve regulatory takings claims that are not “ripe” for adjudication. Specifically, the justices declared that a property owner’s takings claim is not ripe unless: 1) the government defendant has reached a final administrative decision regarding the application of the challenged regulation to the property at issue; and 2) the property owner has first sought compensation from the government defendant via available state administrative and judicial remedies.

Over the intervening 33 years, the Supreme Court’s ripeness rule has bedeviled regulatory takings plaintiffs, proven to be a formidable procedural defense for government takings defendants and produced considerable confusion among lower federal (and state) courts. Perhaps most importantly, several Supreme Court justices–including current justices Clarence Thomas and Anthony Kennedy–have expressed misgivings about the Court’s ripeness rule in regulatory takings jurisprudence, and urged that the Court revisit the whole question.

The Knick case involves the owner of a 90-acre parcel in rural Pennsylvania who claims a town ordinance requiring access across her property to a private cemetery triggers a compensable taking of her property. A federal district court dismissed her federal takings lawsuit on ripeness grounds, finding that Ms. Knick had failed to first pursue her constitutional claim in state court. The U.S. Court of Appeals for the Third Circuit affirmed, and it is from that ruling that Ms. Knick and her attorneys at the Pacific Legal Foundation have successfully sought review.

It seems likely that the Supreme Court justices view the humble facts of theKnick case as the appropriate vehicle to reconsider the ripeness rule the Court first announced in Williamson County in 1985. Property rights advocates generally–and the Pacific Legal Foundation in particular–have long sought the justices’ reexamination of the Court’s ripeness doctrine. Given that doctrine’s evolution as a bedrock principle of regulatory takings law, Knick is shaping up as perhaps the most important regulatory takings case that has come before the Supreme Court in the past decade.

The parties will file written arguments in the case over the next several months (along with an expected flood of friend-of-the-court briefs); the justices will hear oral arguments in Knick next fall; and the Court will issue what is likely to be its most consequential decision sometime in 2019.

Reader Comments

2 Replies to “Supreme Court to Decide Another Major Property Rights Case”

  1. Actually, Knick is a “facial” case, not a “regulatory” case. The difference is that a facial taking case is based upon a claim alleging that a law is unconstitutional on its face, while a regulatory taking case is based upon a claim alleging that a law is unconstitutional “as applied” to the claimant.

    In Williamson, the Supreme Court held that case was not ripe for adjudication under the Fifth Amendment because, inter alia, there had been no final decision regarding application of a regulation to the property at issue. That is a fact intensive issue that could not be resolved by examining the regulation alone.

    By contrast, Knick is based on a claim that an ordinance is unconstitutional on its face and does not require inquiry into application of the ordinance on the claimant since the ordinance allegedly requires access to her property on its face.

    Accordingly, one of the issues before the Court in Knick is whether Williamson’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face. Another issue is whether the Supreme Court should reconsider the portion of Williamson that requires property owners to exhaust state court remedies to ripen federal takings claims.

    If the Court decides that facial taking cases are not barred by Williamson, or are exempt, it may not reach the issue of reconsidering the ripeness doctrine itself in Williamson. In that event, Williamson would still apply to regulatory taking cases.

    1. Rick’s terminology is correct (which is unsurprising, since he managed takings litigation for many years at the CA Attorney General’s office). This is a claim that an ordinance effects a facial taking, but that alleged facial taking is still a regulatory taking. The two aren’t binary. A “regulatory taking” is a taking of property through regulation rather than via physical occupation by the government. Here, the way the state is alleged to have “taken” the property is through enactment of a regulatory ordinance, not through direct physical occupation of property. All the precedent cited in this case is within “regulatory takings” jurisprudence. Everything you say above about the case is correct, but the case is still a “regulatory takings” case the way that courts and commentators use that phrase.

Comments are closed.

About Richard

Richard Frank

Richard Frank is Professor of Environmental Practice and Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center. From 2006-2010, …

READ more

POSTS BY Richard