The property owners have asked the U.S. Supreme Court to review the Sixth Circuit’s decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here.
The cert petition contains three Questions Presented:
1. Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City insofar as it requires property owners to seek compensation in state court to ripen a federal takings claim, where four justices of this Court declared in San Remo Hotel v. City and County of San Francisco that such a rule is “mistaken” due to its lack of doctrinal underpinning and preclusive effect on federal jurisdiction?
2. Is a property owner barred from bringing a procedural due process claim against a defective land use hearing simply because the owner also raised a regulatory takings claim subject to Williamson County, as the Sixth Circuit has held, or does the procedural due process claim supply an independent basis for constitutional relief, as the Ninth and Fifth Circuits have held?
3. Can a property owner raise a procedural due process challenge to a land use permit decision based on a fee simple interest in the affected land, as the Ninth and Seventh Circuits have held, or must the owner have an “entitlement” to the desired permit, as the Sixth Circuit held?
The first question deals with the second part of the Williamson County ripeness test, whether the property owner has sought, and been denied, compensation via available state compensation procedures. Arguing that the reasoning behind Williamson County “is flawed from start to finish,” petition at 12, the petition argues that the Just Compensation Clause is self-executing, meaning that “a landowner subject to an invasion does not acquire a right to claim a constitutional ‘violation’ based on a lack of compensation (as Williamson County assumed); instead, what he acquires is a cause of action for damages.” Petition at 12-13. The petition also points out the Williamson County Catch-22 where the very action that ripens a federal claim (denial of compensation by the state court) is also the action that renders the federal claim res judicata. Id. at 18-19.
The second question points out the clear circuit split between those federal circuits that hold that procedural due process claims are not subject to the ripeness test (D.C., Ninth and Fifth Circuits), and those that hold that due process issues are “subsumed” in takings analysis in land use cases (Sixth, Seventh, and Tenth Circuits). Clear circuit splits on important issues of federal law are the strongest grounds for the Court granting review of a case.
Finally, the third question presented also deals with an issue where the circuits have split: whether the “property” interest in a procedural due process question is the ownership of the land, or must be something more such as an “entitlement” to the desired zoning.
Download the petition here.