March 05, 2020

Knick v. Township of Scott


How, If at All, Does the Prudential Doctrine of Ripeness Apply to Facial Claims in Which a Public Agency Authorizes Invasion of Private Property? 


This case presents the issue of whether the Court should apply Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), requiring property owners to exhaust state court remedies to ripen federal takings claims, to a facial takings case. For more than 30 years, land use lawyers have debated the role of Williamson County ripeness in takings law. While the roots of this case are more than a century old, there appears to be significant concern that a broad reading of Williamson County unduly discourages federal takings claims from being heard. See Arrigoni Enterprises, LLC v. Town of Durham, 136 S. Ct. 1409 (2016); San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005).

Knick v. Township of Scott
Docket No. 17-647
Argument Date: October 3, 2018
From: The Third Circuit
by Edward J. Sullivan
Adjunct Professor of Law, Northwestern School of Law, Lewis and Clark College, and Willamette University College of Law


  1. Should the Williamson County ripeness requirement relating to utilization of state just compensation procedures (i.e., the “state procedures prong”) continue to be applied in takings cases? 
  2. If so, are there exceptions to the state procedures prong of Williamson County ripeness, such as when a facial takings case is presented or when a physical invasion occurs? 



Home burials have not been uncommon over the years in rural areas of Eastern Pennsylvania. Although there is no official record or proof of such burials on plaintiff’s land, defendant, the Township of Scott, passed an ordinance that provided, in material part, that “[a]ll cemeteries…shall be kept open and accessible to the general public during daylight hours.” The Township applied the ordinance to any public and private “cemetery,” defining that term to include any land utilized as a human burial place, and claimed that the ordinance created an undefined public easement, as well as a right of entry of town personnel to these burial places. A town inspector entered plaintiff’s property and asserted there were burial places thereon. The inspector claimed plaintiff’s obstruction of access to that land resulted in an imposition of civil penalties under the ordinance. 

Plaintiff first filed takings claims in state court, but then filed this action in federal court, asserting both facial and as applied takings claims and seeking declaratory and injunctive relief. The federal district court, utilizing the Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) decision, found the claims not ripe until there was a state court determination on the merits of the takings claims. The Third Circuit affirmed and plaintiff successfully sought certiorari.


Williamson County has its roots in language first articulated in 1890 by the first Justice John Marshall Harlan in Cherokee Nation v. Southern Kansas Railway Co.:

It is further suggested that the act of congress violates the constitution in that it does not provide for compensation to be made to the plaintiff before the defendant entered upon these lands for the purpose of constructing its road over them. This objection to the act cannot be sustained. The constitution declares that private property shall not be taken “for public use without just compensation.” It does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken; but the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed. 

135 U.S. at 658–59 (1890).

Williamson County has two elements: first, that there be a final decision as to the uses to which a given property may be put (the “finality prong,” which was not at issue in this case), and second, a requirement that takings plaintiffs pursue their claims in state court and be denied before resorting to federal courts (the “state procedures prong”). It is this latter element that the Supreme Court has before it in this case.

Williamson County reasoned that the constitution does not prevent takings, but rather takings without just compensation. Thus, there is no violation of the Takings Clause until just compensation is denied and, with regard to state and local governments, compensation must be sought using available state remedies before a federal claim may be stated.

An unsuccessful state litigant must bear not only the time and expense of “ripening” a federal claim in a state court, but also the great difficulty in subsequently getting a federal court to reach a different result on the same facts or law from that of the state court. There was only one bite at the apple, as evidenced by the Court’s decision in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), in which an adverse decision to a takings claim in the California courts resulted in issue preclusion in subsequent federal litigation.

Moreover, there is a practice that state and local governments, and their insurance companies, used to lengthen, and ultimately frustrate, takings claims. Bearing in mind Williamson County’s requirement that one cannot generally file federal takings claims against state and local governments in federal courts, a state court claimant involving a state or local government entity raising a federal takings claim may face removal to a federal court under 28 U.S.C. § 1441. City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997). As the plaintiff in this case states it:

In the federal forum, the removed claim is unripe because removal prevented the plaintiff from completing the state litigation required by Williamson County. The removed takings claim instantly goes from ripe (in state court) to nonjusticiable (in federal court) and is subject to outright dismissal or remand.

The fact that only a defendant may seek removal has raised questions of fairness in constitutional adjudication.

Rose Mary Knick and a host of amici generally argue against retention of the ripeness barrier to federal court review of takings claims resulting from final state or local land use decisions. They question the constitutional legitimacy of Williamson County and advocate federal judicial consideration of takings claims without a requirement that those claims be presented to state courts first. Even if the Court does not entertain this broad assertion, it could consider at least allowing facial takings claims to go forward without a ripeness requirement. Respondent Township and its amici, on the other hand, argue that Williamson County is constitutional in its application, avoids federal intrusion into essentially local matters, and has served the country well.

This case deals with both facial and as-applied claims for purposes of the state procedures prong. Unlike Williamson County, Knick raises a facial claim that the challenged ordinance, because it authorizes uncompensated invasion of private property, is, in all of its applications, contrary to the Takings Clause of the Fifth Amendment. In dealing with that subset, one author opines:

It has generally been thought that, Williamson County notwithstanding, takings plaintiffs remain free to raise facial Fifth Amendment challenges in federal courts in the first instance. But a constitutional reading of the compensation prong may capture those litigants as well, thereby nullifying any shortcuts previously provided by attaching the “facial” label to certain theories of recovery.

Katherine Mims Crocker, Justifying a Prudential Solution to the Williamson County Ripeness Puzzle, 49 Ga. L. Rev. 163, 186 (2014) (footnote omitted).

The Crocker excerpt above illustrates the importance of Knick. Williamson County does not expressly cover facial claims. However, there is language from the San Remo case, referring to a previous case, Yee, in which the Supreme Court found a facial challenge ripe. That language may become important in Knick:

[P]etitioners have overstated the reach of Williamson County throughout this litigation. Petitioners were never required to ripen the heart of their complaint—the claim that the [ordinance] was facially invalid because it failed to substantially advance a legitimate state interest—in state court. See Yee v. Escondido, 503 U.S. 519, 534, 112 S. Ct. 1522, 118 L.Ed.2d 153 (1992). Petitioners therefore could have raised most of their facial takings challenges, which by their nature requested relief distinct from the provision of “just compensation,” directly in federal court.

San Remo, 545 U.S. at 345–46. See also id. at 340 n.23 (“Petitioners’ facial challenges to the [ordinance] were ripe, of course, under Yee…”).

There may be more justification for not allowing as-applied challenges to land use decisions to be brought in federal courts, as they are less familiar with this area of the law in reviewing local land use policies and procedures. Similarly, there may be less justification for barring federal review of facial claims, which do not involve interpretation of local plans and ordinances and in which the multifarious local procedures and practices would strain federal judicial resources. Also, state courts may filter out cases on nonconstitutional grounds that can be more numerous and less familiar to federal courts. One size may not fit all situations, for the key issue in ripeness cases is not whether the exclusion from review is jurisdictional or prudential (for the Supreme Court has signaled that it considers ripeness to be generally prudential in nature), but how that prudence should be exercised. 


Petitioner seeks to change the Williamson County state procedures ripeness prong, while respondents hope to extend that analysis from as-applied to facial applications. The Court could do either of those things, but appears to be rejecting any extension, and its careful treading in takings cases argues against Knick’s wholesale rejection of the state procedures ripeness prong in favor of consideration of whether ripeness applies to facial takings claims. As noted above, the Court has implicitly indicated that facial takings claims are not subject to that prong and could be brought in either state or federal courts. This case presents a clear opportunity to clarify this area of takings jurisprudence and to leave for another day the question of whether the state procedures prong should be modified or abolished.

If the Court were to apply the state procedures prong to facial takings claims and decide that federal courts could hear at least some of these cases without the “filter” of a state court decision, it must then decide whether all such claims (or only some of them) may be heard in federal courts. As suggested above, it is unlikely that the Court will fully overrule Williamson County and may emphasize the role of prudence in determining the adequacy of the state court proceedings in considering a just compensation claim. This would be one way of dealing with the fairness issue. However, allocation of federal judicial resources (one of the reasons for the Williamson County decision) may also limit the kind or number of takings claims that might be considered by federal courts. Most of the as-applied claims at least are fact-intensive and thus are most appropriately considered under the multifactor, intermediate-scrutiny analysis commonly attributed to Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Physical invasion or facial takings claims, on the other hand, may be more easily amenable to federal court review.

Williamson County conditioned the ripeness requirement on state compensation procedures that were “certain,” “reasonable,” and “adequate” to meet the Just Compensation Clause. Notwithstanding Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013), and Murr v. Wisconsin, 137 S. Ct. 1933 (2017), the Supreme Court does not appear to have a taste, for itself or other federal courts, in opening the floodgates of state takings claims.

And while it is certainly possible for the Court to overrule Williamson County or extend its reach to facial claims, a more nuanced approach may be in order so that lower federal courts are not overwhelmed by Fifth Amendment claims in the first instance. A more careful approach may assure that the Full Faith and Credit Clause is honored, so long as state courts have, and use, procedures that realize the Just Compensation Clause.


Edward J. Sullivan is an adjunct professor of law at Northwestern School of Law, Lewis and Clark College, and Willamette University College of Law. He can be reached at 503.793.0291 or 

PREVIEW of United States Supreme Court Cases 46, no. 1 (October 1, 2018): 18–20. © 2018 American Bar Association


  • For Petitioner Rose Mary Knick (J. David Breemer, 916.419.7111)
  • For Respondents Township of Scott, Pennsylvania, et al. (Teresa Ficken Sachs, 215.575.2000)


In Support of Petitioner Rose Mary Knick

  • AARP and AARP Foundation (Julie Nepveu, 202.434.2075)

  • American Farm Bureau Federation, National Cattlemen’s Beef Association and CATL Fund (Timothy S. Bishop, 312.701.7829)

  • Becket Fund for Religious Liberty (Lori Halstead Windham, 202.349.7202)

  • Cato Institute (Ilya Shapiro, 202.842.0200)

  • Center for Constitutional Jurisprudence (Anthony Thomas Caso, 877.855.3330)

  • Citizens’ Alliance for Property Rights Legal Fund and (Robert H. Thomas, 808.531.8031)

  • Congressmen Steven King, et al. (Timothy Salo Hollister, 860.251.5601)

  • Institute for Justice (Michael M. Berger, 310.312.4185)

  • Justice and Freedom Fund (James L. Hirsen, 714.283.8880)

  • National Association of Home Builders (Devala Anant Janardan, 202.266.8200)

  • New England Legal Foundation (John Pagliaro, 617.695.3660)

  • Ohio Farm Bureau Federation (Bruce Leroy Ingram, 614.464.6480)

  • San Remo Hotel, L.P. (Paul F. Utrecht, 415.357.0600)

  • Washington Legal Foundation (Richard A. Samp, 202.588.0302)

  • Western Manufactured Housing Communities Association (R. S. Radford, 530.312.4908)

In Support of Respondents Township of Scott, Pennsylvania, et al.

  • California (Nicole Ursula Rinke, 916.210.7797)

  • Cemetery Law Scholars (Tanya D. Marsh, 336.758.6059)

  • National Governors Association (Matthew D. Zinn, 415.552.7272)

  • Takings and Federal Courts Scholars (Kathryn E. Kovacs, 856.225.6771)

  • In Support of Neither Party 

  • American Planning Association (John Michael Baker, 612.373.8344)

  • In Support of Vacatur and Remand 

  • United States (Noel J. Francisco, Solicitor General, 202.514.2217)