First Circuit: Williamson County Applies To Eminent Domain Challenges

In Lichoulas v. City of Lowell, No. 08-1485, 08-2023 (1st Cir., Jan. 30, 2009), the U.S. Court of Appeals declined to rule on a property owner's objection to a taking for redevelopment, holding that public use challenges belong in state court. Interestingly, the court cited Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) for the proposition that "any objection to the taking, or deficiency in adequate compensation, could be and preferably is to be done in state proceedings." Slip op. at 6.

In 2006, the city took Lichoulas' property, on which sat a hydroelectric power facility, inactive since 1994. The Federal Energy Regulatory Commission earlier sent a notice to the owner that unless the facility began operating, it would consider the federal license abandoned. The property owner responded that he would forward a work plan to FERC, but it was never sent. Shortly thereafter, the city began eminent domain proceedings for a redevelopment project. The property owner sued in federal court seeking to enjoin the taking under two theories. First, that the Federal Power Act precluded the taking, and second, that the taking was not for a public use. The district court dismissed the case as not ripe, holding the property owner could refile the case after FERC proceedings were terminated.

The First Circuit affirmed. It did not address the property owner's two arguments, holding any claims that the property owner has that the taking is not for public use under the Fifth Amendment could be raised in the state condemnation proceedings:

Lichoulas is simply seeking to have the federal court derail a state takings proceeding in which--given the Supremacy Clause--he could presumably raise his objections.

The district court had no obligation to oblige. In general, declaratory and injunctive relief are both matters of judicial discretion. Here, the evident prospect that FERC would revoke the license made clear that the federal interest, such as it was, would likely be mooted; and any objection to the taking, or deficiency in adequate compensation, could be and preferably is to be done in state proceedings...To the extent that Lichoulas seeks compensation for the taking, the claim is properly brought in state court, as Williamson makes clear.

Slip op. at 6-7. Rather than muddy the waters by bringing in Williamson County, the court would have been on more solid footing if it based its decision on the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), which embodies "a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). Under Younger and its progeny, "abstention is appropriate...if (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions."  Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1357-58 (9th Cir.1986).

Here, it is not clear from the opinion whether the state court eminent domain proceedings were ongoing: on one hand, the court noted the parcels "were taken" by the city and that the city "took" the property, indicating that the state case was concluded; but on the other, the court noted the property owner sought to enjoin the taking, implying the state proceedings were not yet complete. Even so, this case seems like a good candidate for Younger analysis and not an application of Williamson County, which involved a regulatory taking/inverse condemnation claim for compensation, not an effort to stop a taking because it lacked a public use.

The First Circuit's reliance on Williamson County reflects the lower courts' continuing confusion about what the case means. Some courts even apply it to cases not involving the takings clause (despite the fact that the rationale of Williamson County is based in the text of the takings clause), and now the First Circuit has applied it to public use challenges.  Contrast the decision from the D.C. Circuit in Rumber v. District of Columbia , 487 F.3d 941 (D.C.Cir. 2007), which held that a public use challenger need not seek compensation in state procedures before coming to federal court.  One of these days, the Supreme Court is going to revisit Williamson County.