We don't usually post unpublished opinions, but the Fourth Circuit's recent decision in Clayland Farm Enterprises, LLC v. Talbot County, No. 15-1755 (Dec. 2, 2016), raised some issues worth your time.
The property owner brought its claim in Maryland state court claiming, among other things, that the County's two indefinite moratoria on development and sewer availability -- which prohibited owners from seeking or obtaining County subdivision -- was a facial taking. The lawsuit asserted "the moratorium is facially unconstitutional," although it's not clear from the majority opinion what remedy the complaint sought.
The County removed the case to federal court and moved to dismiss. The district court granted the motion, because "[i]t is beyond the province and competence of this court to make zoning decisions[.]"
The Fourth Circuit reversed. "Count I is a facial challenge to the moratoriums and is thus clearly ripe." Slip op. at 7. Because a facial challenge is one that claims that the very adoption of the law results in a constitutional violation, the takings claim was ripe. "When an ordinance on its face is alleged to have effected a taking, as in Count I, the claim accrues when the ordinance interferes in a clear, concrete fashion with the property's primary use." Slip op. at 7. "Clayland Farm suffered concrete and certain injury as soon as the moratoriums were enacted; the ordinances prohibit Clayland Farm from subdividing more than one additional lot from its property and from developing more than one dwelling unit on the lot, which had previously been allowed." Slip op. at 8.
The court also held that the procedural due process, § 1983, and state law claims were also ripe. In other words, a big win for the property owner.
But it was not without dissent. One judge agreed with all but the takings claim, which he argued was not ripe because the remedy which the complaint seeks is just compensation, and Williamson County require the plaintiff to seek that remedy in state court. The dissent argued that "a facial taking claim seeking just compensation for a valid taking -- as opposed to a facial claim challenging the validity of a taking -- is [not] excused from the exhaustion requirement." Slip op at 13 (Floyd, J., dissenting) (emphasis original). Since the plaintiff here sought just compensation, its claim was not ripe in federal court.
But this argument overlooks the fact that the plaintiff did bring the case in state court, and it was the County which removed the case to federal court and then moved to dismiss for lack of ripeness. See slip op. at 6. See also Sansotta v. Town of Nags Head, 724 F.3d 533, (4th Cir. 2013). Addressing that "waiver" issue, the dissent argued that "[t]he complaint in this case, however, falls outside the scope of Sansotta's waiver reasoning. It alleges no state inverse condemnation claim, and is thus not the type of joint suit authorized by San Remo."
Whereas the plaintiff in Sansotta alleged a state inverse condemnation claim that could have obviated the need for a court (federal or state) to reach its federal just compensation claim, Clayland Farm failed to do so. Thus, Clayland Farm’s federal just compensation claim is just as unripe in federal court as it was in state court, and so Clayland Farm should not be entitled to a waiver defense.
Dissent at 16. Judge Floyd, however, agreed with the majority that Count I would be ripe cast as a public use challenge. Id. at 16 ("I agree with the majority that the alternative claim in Count I -- a public use claim contesting the alleged taking's facial validity -- is ripe."). No amount of state compensation can "cure" the lack of a public use, so property owners can bring their claims in federal court.
This is an unpublished opinion and dissent, so we're not going to spend a lot of time to try and wrap our heads around the dissenting judge's analysis, but suffice it to say this:
If any of you all have other thoughts, send them our way.
- When the government removes the case to federal court, it shouldn't get any traction with an argument based on the notion that the claim should not have been brought in federal court and thus isn't ripe -- the law may be an ass sometimes, but it's not so nuts as to accept an argument that would make Leo Rosten blush.
- We thought in San Remo, the Supreme Court effectively held that the elements of a state and a federal takings claim were the same (hence, issue preclusion prevents "relitigation" of losing state takings claims later in federal court), not that there's some kind of "joint suit" requirement that a takings plaintiff assert both claims in state court.
Clayland Farm Enterprises, LLC v. Talbot County, No. 151755 (4th Cir. Dec. 2, 2016) (unpublished)
