You remember when in grade school you learned that your teacher was out for the day, and you were getting a substitute? It could be a very good day, or a very not-so-good day. Maybe the sub was cool, and you end up watching filmstrips. But if you drew the short straw, the sub acted like a real teacher and did real teacher stuff like give you homework.
That's what it must've felt like when the advocates showed up for arguments in the First Circuit as it considered 29 Greenwood, LLC v. City of Newton, No. 24-1518 (Feb. 4, 2025), and there on the bench was none other than Justice (ret.) Breyer, sitting by designation. Was it going to be filmstrips, or homework?
The case was an appeal of the district court's rejection of a federal takings claim on the grounds that "this case amounts to an everyday zoning-type dispute between a zoning board and a property owner -- the type of dispute that is not sufficiently unusual to trigger the Takings Clause." Slip op. at 5.
The short story is that a property owner which was restoring a historic home discovered during the course of the work that it was in worse shape than thought. It had a construction permit from the city's Historical Commission, so went ahead and "tore down large portions of the building[.]" But when the Commission found out, it concluded that this work went beyond the scope of the construction permit. It issued a stop work order and initiated a criminal complaint. "Although state law provided a mechanism to challenge the Commission's determination that it had violated its permit, Greenwood did not invoke that method." Slip op. at 4.
After trying to satisfy the Commission that this work was ok and obtain a reconstruction permit (all such efforts were rebuffed), "Greenwood began to think that the Commission would never authorize it to rebuild the house." Id. Next stop: state court for a takings lawsuit.
The case didn't stay there, because the city removed to federal court. After which the other shoe dropped and the city moved to dismiss for failure to state a claim. Thus, "[t]he primary question raised in this suit is whether the Commission violated the Takings Clause by failing to grant Greenwood the reconstruction permit it seeks." Slip op. at 5.
But instead of considering that issue, the First Circuit, in an opinion authored by Justice Breyer, held that the case doesn't even belong in federal or state court at all, deciding to abstain to let other, pending state court actions narrow or moot the issues first.
Homework, not filmstrips!
Before filing the takings claim in state court, the owner had challenged the Commission's rejection of its reconstruction permit (apparently under the state APA). That case remains active in state court. There was also that pending criminal complaint in state court. Either of those, wrote Justice Breyer, might moot the federal takings claim, or otherwise make it go away. At worst, allowing these state court actions to play out might narrow the federal issues.
In short, Pullman abstention, which is especially needed because land use is "local" social policy:
This is particularly true when a constitutional question implicates issues of land-use planning -- a "sensitive area of social policy into which the federal courts should not lightly intrude." Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 802 (9th Cir. 2001) (quoting Pearl Inv. Co. v. City & Cnty. of S.F., 774 F.2d 1460, 1463 (9th Cir. 1985)).Given the overlapping legal issues between the pending state-court case (concerning state law, not federal constitutional law) and the case here (concerning a federal constitutional issue), the best course is for the state court to analyze this dispute before the federal courts weigh in further. The outcome of Greenwood's state court case could moot -- or significantly narrow -- this case. If Greenwood loses its case in state court, that means the Commission acted reasonably under state law, suggesting that this is the sort of ordinary zoning dispute not likely to trigger the Takings Clause. And if Greenwood prevails, it should be able to obtain there a significant portion of the relief it seeks here. Greenwood's other claims could be mooted or narrowed by the state-court proceeding, too. Whether the fines, not yet issued in the state criminal action, would be constitutionally excessive turns at least in part on the legality of the Commission's actions under state law. And the state-law claims that Greenwood has raised here are largely derivative of its federal Takings claim. We recognize that the Commission has not requested abstention here, but we "may raise the issue of abstention sua sponte." Ford Motor Co. v. Meredith Motor Co., 257 F.3d 67, 71 n.3 (1st Cir. 2001).
Slip op. at 8-9.
Some thoughts. First, a substitute teacher writing the opinion (Justice Breyer), adds an additional layer of difficulty should the owner be thinking of asking the Supreme Court to take up this issue. It shouldn't, but it probably does.
Second, that "land use is a sensitive issue of local policy" trope needs to be put in the dustbin. What issues delegated to local governments are not issues of local importance? You could easily categorize nearly any activity regulated by local governments to be important to the local government or community. But that doesn't stop the courts from taking a firm hand and protecting individual constitutional rights from the excesses of local majorities where speech, religion, arms, or searches-and-seizures, is the right alleged to be violated. So why private property? Other than a disdain by federal judges who consider property issues to be "everyday zoning-type dispute[s]," what accounts for this carving out of property rights for special treatment?
Finally, this is Williamson County revived. Recall that in Knick and Pakdel, the Supreme Court confirmed that an owner doesn't have to chase state compensation procedures to ripen a takings claim, nor does it need to exhaust the government's administrative review process. Yet here we are: the owner's federal takings claim (in either state or federal court), is held in abeyance to let state court proceedings run their course.
29 Greenwood, LLC v. City of Newton, No. 24-1518 (1st Cir. Feb. 4, 2025)