Take Two: SCOTUS Upends What We Thought We Knew

Just about a year ago, I wrote about Rose Mary Knick’s suit against Scott Township in Pennsylvania (“Taking on a Dead Issue,” August 2018). Ms. Knick contested

the right of her municipality to pass an ordinance mandating public access during daylight hours to a cemetery on private land. The effect of this local rule would force her to allow entry from the nearest public road to a reputed burial area on her land, the existence of which she doubted despite historic research by one Robert Vail.

Claiming the ordinance amounted to a taking of her private rights, but not inverse condemnation, Ms. Knick turned to the Pennsylvania court system to pursue her arguments. Scott Township withdrew its violation notices against her and dropped any enforcement actions. As a result, the Pennsylvania court said Ms. Knick no longer could show she had suffered irreparable harm and refused to rule on her request for equitable relief from the ordinance.

Next stop: Federal District and Third Circuit Courts, both of which dismissed her case, relying on Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (473 U.S. 172). In that 1985 case, the Supreme Court of the United States (SCOTUS) found that the applicant had not shown that all possible variances had been exhausted, so the case was not “ripe” for adjudication. Just compensation had to be sought under state laws in the state courts before it could be argued in the federal courts as a takings claim. From the Williamson case:

“Viewing a regulation that ‘goes too far’ as an invalid exercise of the police power, rather than as a ‘taking’ for which just compensation must be paid, does not resolve the difficult problem of how to define ‘too far,’ that is, how to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession.” (473 U.S. 172 at 199)

Having exhausted Pennsylvania’s inverse condemnation procedures, Ms. Knick won her place in line to be heard by SCOTUS for a determination of how many hoops one must leap through to have a “ripe” claim. She is now celebrating her win, but the rest of us may be a bit dizzy from the changes the decision may bring.

The language of the 5-4 majority decision is easier to grasp than the ripples in the legal system that the decision and its reasoning will cause. The short version is that allegations of local government violations of the “Takings Clause” in the Fifth Amendment to the US Constitution may be brought directly to federal court without going through the state court system first. Before going further into this part of the discussion, here is the referenced “Takings Clause”:

“… nor shall private property be taken for public use, without just compensation.”

Now we start into the murky side of things. Chief Justice John Roberts, writing for the SCOTUS majority, says: “[The “Takings Clause’] does not say: ‘Nor shall private property be taken for public use, without an available procedure that will result in compensation.’” The deprivation of private rights secured by our Constitution serves as the basis for a suit and entitlement to just compensation as soon as property has been taken, no matter what eventual later remedies may be available through the legal system. This means that compensation for a taking is due concurrently with the taking or a constitutional violation results, and there is no erasure of that wrong. Quoting the SCOTUS majority again:

“A bank robber might give the loot back, but he still robbed the bank… In sum, because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time.”

Justice Clarence Thomas, in his concurring opinion underscores the majority by saying that “the ‘sue me’ approach to the Takings Clause is untenable.”

Now for the sticky part. The dissenting opinion, penned by Justice Elena Kagan, points out (often in blistering terms) three major negative consequences of the majority decision. The first is that the ruling “will inevitably turn even well-meaning government officials into lawbreakers.” From my experiences, many local and state governments may need to revise their ordinances, statutes, and construction procedures as a result of the Knick ruling. Government entities proffering offers that are rejected may already have set up escrow accounts covering assessed values while the just compensation hearings – and the project – proceed. But condemnees may have been advised not to take an unacceptable offer while waiting for their day in court, as that might undermine their claims and be construed as acceptance. So development, redevelopment, and construction projects will need to wait for adjudication and payment of full compensation before moving ahead.

Related to this, the second negative result of this decision is that federal courts could be deluged by claims relating to land use and state laws. Because of the “nearly infinite variety of ways” that regulations affect property interests, it is not possible to know how or whether the implementation of land use regulations will result in a taking, or even whose property could be affected. Quoting the dissent:

“Now, when a government undertakes land-use regulation (and what government doesn’t?), the responsible employees will almost inescapably become constitutional malefactors. That is not a fair position in which to place persons carrying out their governmental duties.”

The third negative is the upheaval of all we thought we knew about relying on legal precedent or stare decisis. When we are accustomed to relying on what we have learned from past experiences, to have that past thrown away leaves us in a state of flux and confusion. Justice Kagin writes:

“… the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance. Once again, they need a reason other than the idea ‘that the precedent was wrongly decided.’ [citation omitted] For it is hard to overstate the value, in a country like ours, of stability in the law.”

For those who want to investigate more deeply:
The SCOTUS blog, including links to the final opinion (under “Judgment” near the top), the 21 Amicus Curiae briefs filed on both sides, petitions, briefs, and motions, plus various reviews written as the case unfolded: https://bit.ly/2KpUUeN

For a clean PDF of the decision, concurring opinion, and dissent: https://bit.ly/2TjyyyH

The primary federal case relied upon by the state courts in denying Knick’s claims but rejected by the current SCOTUS majority: Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 1985: https://bit.ly/2LCHVod

About the Author

Wendy Lathrop, PS, CFM, CFS

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.