Update: PLF's Dave Breemer on the decision "In a New Victory, Court Blasts Rules Barring Court Access for Property Owners," while Gideon Kanner adds his thoughts in "Be Still, My Heart! Second Circuit Rules for a Property Owner In a Stinging Inverse Condemnation Opinion."
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Check this out, just received: In Sherman v. Town of Chester, No. 13-1503-cv (May 16, 2014), the U.S. Court of Appeals for the Second Circuit held that a takings claim was ripe, and that Williamson County does not stand in the way.
We love the way this opinion starts off, with a literary reference:
Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But thing were not so simple on Catch-22's Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of missions to 30, forcing Hungry Joe to uppack his bags and rewrite his happy letters. At the time, Yossarian had flown 23 missions.. . .When Yossarian reached 51 missions, he knew it was no cause to celebrate: “He’ll raise them,” Yossarian understood. He appealed to squadron commander Major Major to be exempted from flying his four remaining missions. “Every time I get close he raises them,” Yossarian complained. Major Major responded, “Perhaps he won’t this time.” But of course Yossarian was right. Colonel Cathcart raised the number to 60, then 65, then 70, then 80, with no end in sight.
Plaintiff Steven M. Sherman must have felt a lot like Yossarian in his decade of dealing with defendant Town of Chester.
Slip op. at 3-4.
And it gets better. The opinion details how Mr. Sherman sought subdivision approval from the Town, after which the Town adopted a new zoning ordinance. In response to his new subdivision application, the Town again adopted a new zoning ordinance. "When he created another revised plan in 2005, the Town changed its zoning laws once more. And again in 2006. And again in 2007." Slip op. at 4. The opinion details the "even more hurdles" the Town put in the way. See slip op. at 4-5. "By the time this lawsuit was filed, over ten years had passed." Id. at 5.
Who among us can say that the've not experienced the same "ever-changing labyrinth of red tape," as the court put it? Slip op. at 4.
But the District Court dismissed his takings claim as not ripe under Williamson County, "because Sherman had not received a final decision on his property and seeking a final decision would not be futile. The court reasoned that while Sherman may have to jump through more hoops in the future, he had not established that his application would definitely be denied in the end. To Sherman, this must have sounded a lot like: "Perhaps he won't raise the number this time.'" Slip op. at 5-6.
The rest of the opinion goes on like this, concluding that for Sherman to continue to pursue a final decision from the Town would have been as futile as Yossarian asking for favors from Col. Cathcart, and that the "state procedures" prong of Williamson County did not stand in the way because Sherman had initially filed his case in state court, and the Town had removed it to federal court. Slip op. at 26.
Read that last bit again, in case you missed it: Sheman filed in state court, and the Town removed it to federal court. After which, it claimed that the case should be dismissed because the case could only be heard by the state courts.
You really can't make this stuff up, can you? Amazingly, this argument gets traction in some courts (like the District Court here), although there have been other cases where the courts have rightly seen through this argument's sleight-of-hand. But until all of the Courts of Appeals rule definitively, or the Supreme Court finally reevaluates Williamson County, property owners should expect the tactic to be deployed. Because who knows, there may be a court receptive to the idea, as was the District Court.
We think you should take a few minutes out of your day to read the opinion in its entirety. Any summary by us could not do the opinion justice, either in its recitation of the facts, nor its analysis of the law.
But we will say this. We note that the federal courts of appeals may be starting to see the light, and finally understand how Williamson County really works. As our colleage Dave Breemer recently wrote, the "prudential ripeness doctrine provides [federal courts] with a basis to spare takings plaintiffs from the worst injustices of the state litigation rule until the Supreme Court finally puts this rule where it belongs: in the waste pile of failed constitutional doctrines." The Sherman opinion also reflects what may be a growing fatigue in the federal judiciary with state and local governments deploying these type of "death by a thousand days" tactics. We've seen it this tactic used in non-takings cases also, and Sherman's recitation of the facts should be familiar to many of you. The Supreme Court certainly seems fed up. So we leave you with this, the Sherman opinion's reaction to the Town's efforts to bleed out the property owner:
This analysis does not account for the nature of the Town’s tactics. The Town will likely never put up a brick wall in between Sherman and the finish line. Rather, the finish line will always be moved just one step away until Sherman collapses. In essence, the Town engaged in a war of attrition with Sherman.. . .
Seeking a final decision would be futile because the Town used – and will in all likelihood continue to use – repetitive and unfair procedures, thereby avoiding a final decision. Sherman is therefore not required to satisfy the first prong of Williamson County.
Slip op. at 24-25.
One final note: the tactics apparently worked, and this case adds to the list where the claim had to be prosecuted by the survivors of the property owner: "The Town's machinations to prevent the developent of MareBrook were not without their cost. Between taxes, interest charges, carrying costs, and expenses, Sherman spent approximately $5.5 million on top of the original $2.7 purchase price. As a result, Sherman became financially exhausted to the point of facing foreclosure and possible personal bankruptcy. And while the case was pending on appeal, Sherman died. Nancy J. Sherman, his widow, was substituted as his personal representative." Slip op. at 15 (footnote omitted).
Go read the whole thing.
Sherman v. Town of Chester, No. 13-1503-cv (2d Cir. May 16, 2014)
