If you understand the title of this post, congratulations: you are a regulatory takings wonk.
The property owners have filed a cert petition asking the Supreme Court to review the Tenth Circuit's decision in Alto Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170 (10th Cir. 2011). The Questions Presented explain the background and the issues:
A New Mexico county ordinance forces landowners who seek permits to subdivide their properties to construct and sell "affordable housing" units to County-approved buyers. Petitioners Alto Eldorado Partnership, et al., (collectively, "Alto") are property owners who brought a Fifth Amendment claim in federal district court under 42 U.S.C. § 1983, seeking to have the ordinance enjoined on the grounds that it imposes an unconstitutional permit condition in violation of Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Citing Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the court held that Alto’s claim was unripe and had to be litigated as a compensation claim in state court; the decision effectively denies Alto a federal forum for its Section 1983 claim, because state-court resolution of that claim will bar its litigation in federal court. The court also held that Alto has no viable unconstitutional conditions claim under Nollan, on the grounds that the "affordable housing" condition (1) is a legislative (as opposed to administrative) requirement, and (2) does not take real property, but merely restricts the use of land or, alternatively, requires a monetary payment.1. Are Nollan claims for prospective relief, which by definition implicate no compensation issues, outside the purview of Williamson County’s state-procedures rule and immediately ripe in federal court?2. If not, should the Court overrule Williamson County’s state-procedures rule on the grounds that the rule effectively bars, from federal court, taking claims brought under 42 U.S.C. § 1983, in contravention of Congress’s intent in enacting § 1983 to provide federal rights claimants with access to federal court?3. Did the Tenth Circuit err in holding, contrary to this Court’s precedents and the decisions of state supreme courts, that heightened review under Nollan does not apply to permit conditions that result from legislative enactments and that constitute non-physical-invasions of property?
More, if and when the BIO is filed.
