Tennessee Supreme Court, Nashville
In Phillips v. Montgomery County, No. M2012-00737-SC-R11-CV (Aug. 18, 2014), the Tennessee Supreme Court held that a property owner could recover under the state's inverse condemnation statute, Tenn. Code Ann. § 29-16-123, for a regulatory taking:
We hold that, like the Takings Clause of the United States Constitution, article I, section 21 of the Tennessee Constitution encompasses regulatory takings and that the Property Owners’ complaint is sufficient to allege a state constitutional regulatory taking claim, for which they may seek compensation under Tennessee’s inverse condemnation statute, Tennessee Code Annotated section 29-16-123.Slip op. at 12.
That's all well and good, and we applaud the court for doing so. But wait a minute, you say, that statute and this issue sure sound familiar.
Indeed they do. This is the same statute which the U.S. Supreme Court, in Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), held allowed recovery under a regulatory takings theory under Tennessee law:
The Tennessee state courts have interpreted § 29-16-123 to allow recovery through inverse condemnation where the "taking" is effected by restrictive zoning laws or development regulations. See Davis v. Metropolitan Govt. of Nashville, 620 S.W.2d 532, 533-534 (Tenn. App. 1981); Speight v. Lockhart, 524 S.W.2d 249 (Tenn. App. 1975).
Williamson County, 473 U.S. at 196.
Problem was, the only Tennessee court that mattered -- the Tennessee Supreme Court -- had actually not interpreted the statute that way, would not do so for another 29 years, and indeed, at the time of Williamson County, limited the inverse condemnation statute to physical occupation and "nuisance-type" takings:
It is true that until today this Court has recognized only physical occupation takings and nuisance-type takings. See Edwards, 115 S.W.3d at 465 (quoting Pleasant View Util. Dist v. Vradenburg, 545 S.W.2d 733, 735 (Tenn. 1977)); Lea v. Louisville & Nashville R.R. Co., 188 S.W. 215, 219 (Tenn. 1916).
Slip op. at 11. In Phillips, the Tennessee court noted that the issue of whether compensation under the inverse condemnation statute was available for regulatory takings claims was "an issue of first impression for this Court." Slip op. at 9.
Which naturally takes us to the question of how could the U.S. Supreme Court in 1985 base its decision in Williamson County -- and have created the takings ripeness doctrine -- by concluding that Tennessee law allowed a regulatory takings plaintiff to recover compensation a quarter-century before the Tennessee Supreme Court actually determined that's what Tennessee law allows?
The short answer, of course, is that the U.S. Supreme Court simply got it wrong (as noted by Professor Kanner in this post), and as a consequence, gave us the flawed ripeness rules of Williamson County that we've been stuck with ever since. We raise this not to point out how prescient the U.S. Supreme Court was in Williamson County regarding Tennessee law, but that we must take the Court's statements about what state law may or may not allow with a grain of salt where the state supreme court has not weighed in explicity.
This episode also highlights the problem of appellate courts going off on their own to address issues not raised, briefed, or argued by the parties (remember, the parties in Williamson County argued only about whether a temporary taking could be a taking at all, and it was the Court which raised the "ripeness" issue on its own). As illustrated by this case, sometimes the court has no idea what it is talking about.
Phillips v. Montgomery County, No. M2012-00737-SC-R11-CV (Tenn. Aug. 18, 2014)
