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January 15, 2020 Feature

Knick in Perspective: Restoring a Regulatory Takings Remedy

By David L. Callies and Ellen R. Ashford

The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of police power—has been the subject of continuous litigation for nearly a century. The extent to which overzealous exercise of the police power is sufficient to deprive a landowner of rights in property before the property has been “taken” by regulation has bedeviled us ever since Justice Holmes opined in Pennsylvania Coal Co. v. Mahon that a regulation that goes “too far” is a constitutionally proscribed taking.1

In this area of regulatory takings the courts have added exponentially to the common law, breaking a near half-century of silence following Pennsylvania Coal, during which state courts have chipped away at the doctrine, nearly rendering it meaningless.2 Arguably commencing with its bizarre April Fool’s Day decision in Village of Belle Terre v. Boraas3 and certainly in a decision four years later, the United States Supreme Court reinvigorated the regulatory takings doctrine in 1978 with its historic preservation decision in Penn Central Transportation Co. v. City of New York.4 Penn Central established the doctrine of partial regulatory takings dependent upon the landowner’s economic loss (in particular, the extent of interference with “distinct,” and later “reasonable,” investment-backed expectations) and the character of the taking—regulatory or physical. Fifteen years later, the Court set forth the “per se” or categorical rule on “total” regulatory takings: If a regulation left a landowner with no economically beneficial use, then the regulation must be treated as an exercise of eminent domain unless the regulation codified either the applicable law of nuisance or a background principle of state real property law, such as public trust or customary law.5

In between, the Court turned back several regulatory takings challenges on the ground that the controversy was not “ripe.” The question of when a regulatory takings claim is “ripe” for review arises because of tests the Supreme Court has articulated in deciding regulatory takings claims. Unless a court can determine the extent of economic loss (whether partial or total), it cannot decide whether a regulatory taking has occurred. When the claimant sues under the U.S. Constitution’s Fifth Amendment, the issue of damages is critical since the Amendment does not bar takings, only takings without compensation. These considerations underlie the so-called “ripeness doctrine, which is set out in the discussion of the Court’s Williamson County decision. Ever since, this “prudential” inquiry has become a virtually insuperable barrier to bringing regulatory takings claims, particularly because some courts converted the two-part test for ripeness into a jurisdictional rather than a prudential doctrine. The application of the test has become a further dilemma for plaintiff landowners because of the element of preclusion that is introduced.

Fortunately, the Court eliminated the state action/litigation requirement this year in Knick v. Township of Scott.6 It all began with Williamson County Regional Planning Com’n v. Hamilton Bank of Johnson City.7 In Williamson County, the Court barred Hamilton Bank, the owner of a parcel that was denied development approval by the county, from bringing a regulatory takings claim in federal court because the claim was not “ripe.” Ripeness, according to the Court, required the landowner to (1) obtain a “final decision” from the relevant state or county agencies on its application for development (in that case, subdivision approval)8 and (2) to seek and fail to obtain compensation for the regulatory taking in state court.9 Noting that the property owner had sought neither a variance nor similar land use exception for its project nor compensation for the alleged taking, the Court held that Hamilton Bank failed on both “prongs” of the ripeness test and therefore could not bring a substantive takings challenge in federal court. Both the final decision rule and the compensation requirement raised considerable barriers to the bringing of regulatory takings challenges to land use controls.10

The subsequent Supreme Court decision in San Remo v. City and County of San Francisco11 demonstrates indirectly the efforts of applying the ripeness doctrine to regulatory takings disputes. San Remo deals directly with neither prong, but rather with the preclusion problem created for litigants directed first to seek relief in state court under either or both prongs of Williamson County. Such litigants dutifully bring their claims in state court, are denied relief, and return to federal court, only to find that they are then precluded from “relitigating” the takings claims in the original federal court.12

In Knick, the Court first clarifies that the government violates the Takings Clause once it takes property without just compensation, which gives rise to the property owner’s Fifth Amendment claim under § 1983.13 By crystallizing the proper understanding of the Fifth Amendment right to just compensation, Knick’s holding follows logically: the state procedure prong of Williamson County ripeness is overruled because of its poorly reasoned and unworkable effects in practice.14 The first prong, finality, was left undisturbed because it was not at issue in Knick.15

The regulation underlying Knick involved a local ordinance that violated the fundamental right to exclude. Knick owned 90 acres of pastureland in Scott Township, a small community outside of Scranton, Pennsylvania. Her land was used mostly for grazing for horses and other farm animals except for Knick’s single-family home and a small grave area where a neighbor’s ancestors allegedly were buried. Pennsylvania had a long history of permitting backyard burials. In 2012, the Township passed an ordinance requiring all cemeteries to maintain open public access during daylight hours. The ordinance also authorized Township officers to enter property to determine the existence and location of a cemetery on privately owned property. An officer discovered several grave markers on Knick’s property and notified her of a violation of the ordinance for failure to open her property for public access during the day.16

Knick petitioned the state court for declaratory and injunctive relief on the ground that the ordinance effected a taking of her property. Upon the Township’s stay of enforcement of the ordinance during state court proceedings, Knick was procedurally excluded from state remedy. The state court declined to rule on Knick’s request for declaratory and injunctive relief because she could not demonstrate the irreparable harm component necessary for equitable relief without an ongoing enforcement action.17 Knick then filed in District Court alleging the ordinance constituted a Fifth Amendment taking. Knick’s claim was dismissed because Knick did not pursue an inverse condemnation action in state court.18 The Third Circuit noted that the ordinance was “extraordinarily and constitutionally suspect” but affirmed the dismissal of Knick’s claim under Williamson County. 19 The Supreme Court agreed that the contested ordinance clearly caused an uncompensated regulatory taking, accepted Knick on certiorari, and eliminated the state procedure prong from the Williamson County two-prong test.20

The Knick opinion opens by characterizing Williamson County as holding “a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law.”21 The Court corrects this misconception of when the right for compensation arises, a misconception promoted in Williamson County. According to Knick, the plaintiff’s inability to pursue her federal claim due to Williamson County’s ripeness requirement and the Court’s subsequent decision in San Remo “rests on a mistaken view of the Fifth Amendment.”22

Knick holds that the availability of any particular compensation remedy under state law cannot infringe upon or restrict the property owner’s federal constitutional claim. The existence of state procedure that may result in compensation does not affect nor deprive a property owner’s right to just compensation.23 Knick explains that the Williamson County Court created the state procedure prong under a different understanding of the Fifth Amendment. Williamson County explicitly held that the property owner “cannot claim” a violation of the Takings Clause until it has used the available state law procedure for compensation and been denied.24 Under that view of the Takings Clause, the presence of a state remedy qualifies the right, preventing the right to compensation from vesting until exhaustion of state procedure proves unsuccessful.25

After citing a large body of cases that show ambiguity as to when the taking occurs, Knick holds that plaintiffs may bring constitutional claims under the Takings Clause without first bringing any sort of state lawsuit, even when state court procedures to address the underlying contention are available.26 Knick describes the state procedure prong as practically effectuating a state procedure exhaustion requirement.27 Thus, the state procedure prong of Williamson County ripeness was based on a flawed interpretation of the Takings Clause.28 Knick concludes that government violates the Takings Clause when it takes property without compensation, and that a property owner may then bring a Fifth Amendment claim at that time. Because the violation is complete at the time of the taking, the plaintiff’s pursuit of remedy in federal court does not need to wait on subsequent state procedure.29

The need for landowners to go to federal court to resolve regulatory takings disputes is illustrated superbly in the Hawai’i Supreme Court’s 2017 decision in Leone v. County of Maui.30 The Court upheld a jury verdict finding no regulatory taking even though the landowner was prevented by local land use regulation from building a single-family house—or indeed anything else—on its lot. The facts are strikingly similar to Lucas v. South Carolina Coastal Council,31 a 1992 U.S. Supreme Court opinion finding a regulatory taking of a beachfront lot due to state coastal zone regulations forbidding the construction of a single-family home. In Lucas, the Court held that, with exceptions relating to nuisance and background principles of a state’s law of property (neither of which were at issue in Leone), government may not deprive a landowner of all economically beneficial use of its property without paying compensation as if the property were acquired by eminent domain.32 Maui County did cause such a deprivation, but meanwhile refused to either pay for the Leone parcel or permit the construction of a single-family home on it, thereby bringing the case squarely within the rule and facts of Lucas. It is inconceivable that a federal court would have ruled that there is no regulatory taking under Lucas.

The Leone decision is badly flawed on the law. Land always has some value. Land being what it is, that value tends to rise over time. If that increase in value is the equivalent of economically beneficial use—and the virtually identical fact pattern in Lucas makes it clear it is not—then there is nothing left of Lucas, and total, categorical regulatory takings. As long as state courts choose to ignore clear federal precedent in regulatory takings cases, as the Hawai’i Supreme Court has regrettably done in Leone, there must be an available remedy in federal court. The Knick decision opens federal courts to regulatory takings litigation to restore that remedy.


1. 260 U.S. 393 (1922).

2. Fred Bosselman, David Callies & John Banta, The Taking Issue: An Analysis of the Constitutional Limits of Land Use Control (1973).

3. 416 U.S. 1 (1974).

4. 438 U.S. 104 (1978).

5. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

6. 139 S. Ct. 2162 (2019).

7. 473 U.S. 172 (1985).

8. Id. at 186–194.

9. Id. at 194–197.

10. For critical comment on the insuperable barrier which Williamson County thus imposes, see Thomas E. Roberts, Ripeness and Forum Selection in Fifth Amendment Takings Litigation, 11 J. Land Use & Envtl. L. 37 (1995); see also Michael M. Berger, The “Ripeness” Mess in Federal Land Use Cases, or How the Supreme Court Converted Federal Judges into Fruit Peddlers, Ch. 7, Inst. On Plan., Zoning and Eminent Domain (1991).

11. 545 U.S. 323 (2005).

12. See, e.g., Mitchell v. Mills County, 673 F.Supp. 332 (S.D. Iowa 1887), aff’d., 847 F.2d 1988 (8th Cir. 1988), and Kottschade v. City of Rochester, 319 F.3d 1038 (8th Cir. 2003), cert. denied, 124 S. Ct. 178 (2003). Thomas E. Roberts, Ripeness Principles of Res Judicata, 24 Urb. Law. 479 (1992).

13. Knick, 139 S. Ct. at 2177.

14. Id. at 2178–79.

15. Id. at 2169.

16. Id. at 2168.

17. Id.

18. Id. at 2169.

19. Id.

20. Id.

21. Id. at 2167.

22. Id.

23. Id. at 2171.

24. Id. (quoting Williamson Cty. 473 U.S. at 195).

25. Id.

26. Id. at 2173 (quoting D. Dana & T. Merrill, Property: Takings 262 (2002)).

27. Id.

28. Id.

29. Id. at 2177.

30. 404 P.3d 1257 (2017).

31. 505 U.S. 1003 (1992).

32. 505 U.S. at 1019.

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By David L. Callies and Ellen R. Ashford

David L. Callies, FAICP, ACREL, is the Benjamin A. Kudo Professor of Law at the William S. Richardson School of Law, The University of Hawai’i at Manoa, where he teaches land use, state and local government, and real property. Ellen R. Ashford is a JD candidate at the William S. Richardson School of Law, The University of Hawai’i at Manoa, and member of the UH Law Review.