No. _______

In the

Supreme Court of the United States

Ë

ARRIGONI ENTERPRISES, LLC,

Petitioner,v.

TOWN OF DURHAM; DURHAMPLANNING AND ZONING COMMISSION;

and DURHAM ZONING BOARD OF APPEALS,

Respondents.

Ë

On Petition for Writ of Certiorarito the United States Court of Appeals

for the Second Circuit

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PETITION FOR WRIT OF CERTIORARI

Ë RICHARD D. CARELLA

Of CounselUpdike Kelly & Spellacy P.C.100 Pearl Street, 17th FloorHartford, Connecticut 06123Telephone: (860) 548-2600Facsimile: (860) 548-2680E-mail: rcarella@uks.com

J. DAVID BREEMER

Counsel of RecordPacific Legal Foundation930 G StreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747E-mail: jdb@pacificlegal.org

Counsel for Petitioner

i

QUESTIONS PRESENTED

1. Whether the Court should reconsider, andthen overrule or modify, the portion of WilliamsonCounty Regional Planning Commission v. HamiltonBank of Johnson City, 473 U.S. 172, 194 (1985),barring property owners from filing a federal takingsclaim in federal court until they exhaust state courtremedies, when this rule results in numerousjurisdictional “anomalies” and has a “dramatic”negative impact on takings law, San Remo Hotel, L.P.v. City and County of San Francisco, 545 U.S. 323, 351-52 (2005) (Rehnquist, C.J., concurring)?

2. Alternatively, whether federal courts can andshould waive Williamson County’s state litigationrequirement for prudential reasons when a federaltakings claim is factually concrete without stateprocedures, as some circuit courts hold, or apply therequirement as a rigid jurisdictional barrier, as othercircuits hold?

ii

CORPORATE DISCLOSURE STATEMENT

Arrigoni Enterprises, LLC, has no parentcompany, and no publicly held company owns 10% ormore of the corporation’s stock.

iii

TABLE OF CONTENTSPage

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE STATEMENT . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS AT ISSUE . . . . 2

INTRODUCTION AND SUMMARYOF REASONS FOR GRANTINGTHE PETITION . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 8

A. The Property . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Arrigoni’s Attempts to ObtainDevelopment Approvals . . . . . . . . . . . . . . . 9

1. The Town Denies a 2005Rezoning Request . . . . . . . . . . . . . . . . 9

2. The Town Requires, and ThenDenies, Special Permits . . . . . . . . . . . . 9

C. The State Court Suit andSubsequent Variance Denial . . . . . . . . . . 10

D. The Federal Suit and Appeal . . . . . . . . . . 11

REASONS FOR GRANTING THE WRIT . . . . . . . 12

TABLE OF CONTENTS—ContinuedPage

iv

I. THIS CASE RAISES AN IMPORTANTISSUE AS TO WHETHER THE COURTSHOULD RECONSIDER WILLIAMSONCOUNTY’S UNWORKABLE DEMANDTHAT PROPERTY OWNERS EXHAUSTSTATE COURT PROCEDURES TORIPEN FEDERAL TAKINGS CLAIMS . . . . . 12

A. The Origin and Logic of the StateLitigation Requirement . . . . . . . . . . . . . . 12

B. The State Litigation Rule Operates toDestroy, Not Ripen, Takings Cases . . . . . 13

1. Williamson County DefeatsFederal Takings Reviewand Relegates Plaintiffsto State Courts . . . . . . . . . . . . . . . . . . 14

2. The State Litigation Rule InhibitsState Court Takings Review . . . . . . 18

II. THIS CASE PRESENTS THEIMPORTANT ISSUE OF WHETHERAND WHEN COURTS MAY WAIVEWILLIAMSON COUNTY’S STATELITIGATION RULE FOR PRUDENTIALREASONS, AN ISSUE ON WHICHFEDERAL COURTS ARE INCONFLICT AND CONFUSION . . . . . . . . . . 23

A. Courts Are Split on WhetherWilliamson’s State LitigationRequirement Is a Strict,Jurisdictional Rule or aFlexible, Prudential Doctrine . . . . . . . . . 24

TABLE OF CONTENTS—ContinuedPage

v

1. The First, Eighth, and EleventhCircuits Apply the State LitigationRule as a Jurisdictional Barrier . . . . 24

2. The Fourth, Fifth, Sixth, andNinth Circuits Consider theState Litigation Requirementto Be Prudential . . . . . . . . . . . . . . . . . 25

3. The Third, Seventh, and TenthCircuits Appear to RecognizeWilliamson County’s PrudentialNature, but Nonetheless Applythe State Litigation Rule as aJurisdictional Barrier . . . . . . . . . . . . 26

4. The Second Circuit’s DecisionExacerbates the Confusion . . . . . . . . 27

B. Courts Adopting the Prudential ViewAre in Conflict on Whether WilliamsonCounty Can be Waived . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

TABLE OF CONTENTS—ContinuedPage

vi

APPENDIX

Summary Order (2d Cir. Oct. 19, 2015) . . . . . . A-1

Ruling on Motion to Dismiss (D. Conn. Mar. 27, 2009) . . . . . . . . . . . . . . . B-1

Ruling on Motion for Summary Judgment(D. Conn. Sept. 30, 2011) . . . . . . . . . . . . . . . C-1

vii

TABLE OF AUTHORITIESPage

Cases

126th Ave. Landfill, Inc. v. Pinellas Cnty., 459 F. App’x 896 (11th Cir. 2012) . . . . . . . . . . . 16

8679 Trout, LLC v. N. Tahoe Pub. Utils. Dist., No. 2:10-cv-01569, 2010 WL 3521952 (E.D. Cal. Sept. 8, 2010) . . . . . . . . . . . . . . . . 19-20

Alto Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170 (10th Cir. 2011) . . . . . 27

Arrigoni Enterprises, LLC v. Durham Planning& Zoning Comm’n, Nos. CV064004729,CV064004728, 2007 WL 706651 (Super. Ct. Conn. Feb. 15, 2007) . . . . . . . . . . . . 10

Arrigoni Enterprises, LLC v. Town of Durham, --- F. App’x ---, 2015 WL 6118204 (2d Cir. 2015) . . . . . . . . . . . . . 1

Arrigoni Enterprises, LLC v. Town of Durham,606 F. Supp. 2d 295 (D. Conn. 2009) . . . . . . . . . . 1

Asociacion De Subscripcion Conjunta Del SeguroDe Responsabilidad Obligatorio v.Flores Galarza, 484 F.3d 1 (1st Cir. 2007) . . . . . . 4

Athanasiou v. Town of Westhampton, 30 F. Supp. 3d 84 (D. Mass. 2014) . . . . . . . . . . . 29

Brandywine Estates LP v. Lucas County, No. 3:15-cv-00884, 2015 WL 5255002 (N.D. Ohio Sept. 9, 2015) . . . . . . . . . . . . . . . . . . 30

Busse v. Lee County, 317 F. App’x 968 (11th Cir. 2009) . . . . . . . . . . . 25

TABLE OF AUTHORITIES—ContinuedPage

viii

CBS Outdoor, Inc. v. Village of Itasca, No. 08 C 4616, 2009 WL 3187250 (N.D. Ill. Sept. 30, 2009) . . . . . . . . . . . . . . . . . . . 20

County Concrete Corp. v. Township of Roxbury,442 F.3d 159 (3d Cir. 2006) . . . . . . . . . . . . . . . . 26

Dahlen v. Shelter House, 598 F.3d 1007 (8th Cir. 2010) . . . . . . . . . . . . . . . 25

Del-Prairie Stock Farm, Inc. v. Countyof Walworth, 572 F. Supp. 2d 1031 (E.D. Wis. 2008) . . . . . . . . . . . . . . . . . . 3, 5, 19-20

Dibbs v. Hillsborough County, No. 15-10152, --- F. App’x ---, 2015 WL 5449225 (11th Cir. Sept. 17, 2015) . . . 30

DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir. 2004) . . . . . . . . . . . . . 13-16

Doak Homes, Inc. v. City of Tukwila, No. C07-1148MJP, 2008 WL 191205 (W.D. Wash. Jan. 18, 2008) . . . . . . . . . . . . . . . . 19

Doney v. Pacific Cnty., No. C07-5123RJB, 2007 WL 1381515 (W.D. Wash. May 9, 2007) . . . . . . . . . . . . . . . . . 20

Downing/Salt Pond Partners, L.P. v.Rhode Island & Providence Plantations, 643 F.3d 16 (1st Cir. 2011) . . . . . . . . . . . . . . 24-25

Everson v. City of Weyauwega, 573 F. App’x 599 (7th Cir. 2014) . . . . . . . . . . . . 27

Gose v. City of Douglas, 561 F. App’x 723 (10th Cir. 2014) . . . . . . . . . . . 27

TABLE OF AUTHORITIES—ContinuedPage

ix

Guggenheim v. City of Goleta, 638 F.3d 1111 (9th Cir. 2010) . . . . . . . . . . . . 26, 29

Hendrix v. Plambeck, 420 F. App’x 589 (7th Cir. 2011) . . . . . . . . . . . . 27

Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278 (1913) . . . 16-17

Horne v. Dep’t of Agric., 133 S. Ct. 2053 (2013) . . . . . . . . . . . . . 3, 24, 30-31

Koscielski v. City of Minneapolis, 435 F.3d 898 (8th Cir. 2006) . . . . . . . . . . . . . . . . 20

Lewis v. Carrano, 844 F. Supp. 2d 325 (E.D.N.Y. 2012) . . . . . . . . . 30

Lynch v. Household Fin. Corp., 405 U.S. 538 (1972) . . . . . . . . . . . . . . . . . . . . . . . 17

Marek v. Rhode Island, 702 F.3d 650 (1st Cir. 2012) . . . . . . . . . . . . . . . . 24

Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) . . . . . . . . . . . . . . . . . . . . . . . 20

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) . . . . . . . . . . . . . . . 16

McDonald v. City of West Branch, 466 U.S. 284 (1984) . . . . . . . . . . . . . . . . . . . . . . . 14

MHC Fin. Ltd. P’ship v. City of San Rafael,714 F.3d 1118 (9th Cir. 2013), cert. denied, 134 S. Ct. 900 (2014) . . . . . . . . 28-29

Mitchum v. Foster, 407 U.S. 225 (1972) . . . . . . . . . 17

TABLE OF AUTHORITIES—ContinuedPage

x

Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005) . . . . . . . . . . . . . . . . 27

Peters v. Village of Clifton, 498 F.3d 727 (7th Cir. 2007) . . . . . . . . . . . . . 27-28

Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974) . . . . . . . . . . . . . . . . . . . . . . . 21

Rockstead v. City of Crystal Lake, 486 F.3d 963 (7th Cir. 2007) . . . . . . . . . . . . . . 3, 19

Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d 86 (5th Cir. 2011) . . . . . . . . . . . . . . 26, 28

Rural Water Co., Inc. v. Zoning Bd. of Appeals,947 A.2d 944 (Conn. 2008) . . . . . . . . . . . . . . . . . 21

Sackett v. E.P.A, 132 S. Ct. 1367 (2012) . . . . . . . . . 22

San Remo Hotel, L.P. v. City and County ofSan Francisco, 545 U.S. 323 (2005) . . . . . . passim

Sansotta v. Town of Nags Head, 724 F.3d 533 (4th Cir. 2013) . . . . . . . . . . . . passim

Seiler v. Charter Twp. of Northville, 53 F. Supp. 2d 957 (E.D. Mich. 1999) . . . . . . . . 19

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 22

Sherman v. Town of Chester, 752 F.3d 554 (2d Cir. 2014) . . . . . . . . . . . . . 27, 29

Snaza v. City of Saint Paul, 548 F.3d 1178 (8th Cir. 2008) . . . . . . . . . . . . . . . 25

TABLE OF AUTHORITIES—ContinuedPage

xi

Stop the Beach Renourishment, Inc. v.Florida Dep’t of Envtl. Prot., 560 U.S. 702 (2010) . . . . . . . . . . . . . 6-7, 13, 24, 27

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725 (1997) . . . . . . . . . . . . . . . . . . . . . . . 24

Town of Nags Head v. Toloczko, 728 F.3d 391 (4th Cir. 2013) . . . . . . . . . . . 6, 26, 29

W.J.F. Realty Corp. v. Town of Southampton,220 F. Supp. 2d 140 (E.D.N.Y. 2002) . . . . . . . . . 15

Wilkins v. Daniels,744 F.3d 409 (6th Cir. 2014) . . . . . . . . . . . . . . . . 26

Williamson County Regional PlanningCommission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) . . . 2, 11-13, 21

Statutes

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

§ 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

§ 1441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

§ 1738 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . 1, 7, 11-12, 17

Constitution

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . 1-2

TABLE OF AUTHORITIES—ContinuedPage

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Miscellaneous

Berger, Michael M. & Kanner, Gideon, ShellGame! You Can’t Get There from Here: SupremeCourt Ripeness Jurisprudence in Takings Casesat Long Last Reaches the Self-Parody Stage,36 Urb. Law. 671 (2004) . . . . . . . . . . . . . . . . . . . . 4

Berger, Michael M., Supreme Bait & Switch: The Ripeness Ruse in Regulatory Takings,3 Wash. U. J.L. & Pol’y 99 (2000) . . . . . . . . . . . 3-4

Berger, Michael M., The Ripeness Game: Why Are We Still Forced to Play?, 30 Touro L. Rev. 297 (2014) . . . . . . . . . . . . . . . 4, 8

Breemer, J. David, The Rebirth of FederalTakings Review? The Courts’ “Prudential”Answer to Williamson County’s Flawed StateLitigation Ripeness Requirement, 30 Touro L. Rev. 319 (2014) . . . . . . . . . . . . . . 5, 20

Breemer, J. David, You Can Check Out But YouCan Never Leave: The Story of San RemoHotel—The Supreme Court Relegates FederalTakings Claims to State Courts Under a RuleIntended to Ripen the Claims for FederalReview, 33 B.C. Envtl. Aff. L. Rev. 247 (2006) . . 4

Callies, David L., Through a Glass Clearly:Predicting the Future in Land Use TakingsLaw, 54 Washburn L.J. 43 (2014) . . . . . . . 5, 8, 24

TABLE OF AUTHORITIES—ContinuedPage

xiii

Hawley, Joshua D., The Beginning of theEnd? Horne v. Department of Agricultureand the Future of Williamson County, 2013 Cato Sup. Ct. Rev. 245 . . . . . . . . . . . . . . 4, 17

Kanner, Gideon, “[Un]equal Justice Under Law”: The Invidiously Disparate Treatment ofAmerican Property Owners in Taking Cases, 40 Loy. L.A. L. Rev. 1065 (2007) . . . . . . . . . . . . 22

Keller, Scott A., Judicial Jurisdiction StrippingMasquerading as Ripeness: Eliminatingthe Williamson County State LitigationRequirement for Regulatory Takings Claims, 85 Tex. L. Rev. 199 (2006) . . . . . 4, 14, 22

McConnell, Michael W., Horne and theNormalization of Takings Litigation: AResponse to Professor Echeverria, 43 Envtl.L. Rep. News & Analysis 10749 (2013) . . . . . . . . 6

Monaghan, Henry Paul, State Law Wrongs, State Law Remedies, and the FourteenthAmendment, 86 Colum. L. Rev. 979 (1986) . . . . 22

Overstreet, Gregory, Update on the Continuingand Dramatic Effect of the Ripeness Doctrineon Federal Land Use Litigation, 20 Zoning & Plan. L. Rep. 25 (1997) . . . . . . . . . . 4

Preis, John F., Alternative StateRemedies in Constitutional Torts, 40 Conn. L. Rev. 723 (Feb. 2008) . . . . . . . . . . . . 17

1

PETITION FOR WRIT OF CERTIORARI

Arrigoni Enterprises, LLC, (Arrigoni) respectfullypetitions for a writ of certiorari to review the judgmentof the United States Court of Appeals for the SecondCircuit.

Ë

OPINIONS BELOW

The opinion of the Second Circuit Court ofAppeals issued on October 19, 2015. It is available atArrigoni Enterprises, LLC v. Town of Durham, --- F.App’x ---, 2015 WL 6118204 (2d Cir. 2015). Theopinion is attached here as Appendix A.

The opinion of the district court on the issuespresented by this Petition issued on March 27, 2009. It is published at Arrigoni Enterprises, LLC v. Town ofDurham, 606 F. Supp. 2d 295 (D. Conn. 2009). Theopinion is attached here as Appendix B.

The district court’s opinion on Arrigoni’s equalprotection claim—which is not at issue here—isattached as Appendix C for factual backgroundpurposes.

Ë

JURISDICTION

This Court has jurisdiction under 28 U.S.C.§ 1331, 42 U.S.C. § 1983, and the Fifth Amendment tothe United States Constitution. The Petition wastimely filed, and this Court has jurisdiction to reviewthe case under 28 U.S.C. § 1254(1).

Ë

2

CONSTITUTIONALPROVISIONS AT ISSUE

The Takings Clause of the Fifth Amendment tothe United States Constitution provides: “[N]or shallprivate property be taken for public use without justcompensation.”

Ë

INTRODUCTION ANDSUMMARY OF REASONS

FOR GRANTING THE PETITION

In Williamson County, this Court created anunprecedented and regressive procedural hurdle forproperty owners seeking to vindicate their FifthAmendment right to be free from an uncompensatedtaking of property. In dicta, the Williamson CountyCourt declared that a landowner must unsuccessfully“seek compensation through the procedures the Statehas provided for doing so” before claiming thegovernment has unconstitutionally taken privateproperty. 473 U.S. 172, 194 (1985). This has beenconstrued to mean that property owners must litigatein state court before any Fifth Amendment takingsclaim is “ripe” in federal court. See San Remo Hotel,L.P. v. City and County of San Francisco, 545 U.S. 323,346-47 (2005).

The state litigation ripeness doctrine has causedmore dysfunction, conflict, and injustice in the area offederal property rights litigation than any otherjurisdictional concept articulated by this Court. Through its interaction with pre-existing jurisdictionalrules, such as claim and issue preclusion and removal

3

jurisdiction, the state litigation ripeness rule typicallyfunctions to deprive property owners of any judicialhearing (state or federal) for a Fifth Amendmenttakings claim. Rockstead v. City of Crystal Lake, 486F.3d 963, 968 (7th Cir. 2007); Michael M. Berger,Supreme Bait & Switch: The Ripeness Ruse inRegulatory Takings, 3 Wash. U. J.L. & Pol’y 99, 102(2000) (“[T]he very act of ripening a case also ends it.”).

To make matters worse, the state litigationrule—and the train of jurisdictional problems followingfrom it—is doctrinally unnecessary. When thegovernment makes a final decision denying propertyuse and has no mechanism or intent to providecompensation, a constitutional takings claim is fit forfederal review. Horne v. Dep’t of Agric., 133 S. Ct.2053, 2062 n.6 (2013) (“A ‘Case’ or ‘Controversy’ existsonce the government has taken private propertywithout paying for it.”). State court remedies areirrelevant. Del-Prairie Stock Farm, Inc. v. County ofWalworth, 572 F. Supp. 2d 1031, 1033 (E.D. Wis. 2008)(“a concrete takings injury can occur without statelitigation”).

4

For all these reasons, courts and commentators1

have leveled “substantial criticism” at Williamson’sstate litigation rule. See Asociacion De SubscripcionConjunta Del Seguro De Responsabilidad Obligatoriov. Flores Galarza, 484 F.3d 1, 17 (1st Cir. 2007). Indeed, a decade ago, four members of this Courtconcluded it should be reconsidered. San Remo, 545U.S. at 352 (Rehnquist, C.J., concurring). Theconcurring San Remo Justices noted that “theaffirmative case for the state-litigation requirement

1 See Michael M. Berger, The Ripeness Game: Why Are We StillForced to Play?, 30 Touro L. Rev. 297, 298 (2014) (“the ripenessrule was nonsense when first articulated and it remains nonsensetoday” (footnote omitted)); Joshua D. Hawley, The Beginning of theEnd? Horne v. Department of Agriculture and the Future ofWilliamson County, 2013 Cato Sup. Ct. Rev. 245, 247 (WilliamsonCounty introduced “distortions and doctrinal anomalies up anddown the length of takings law”); Michael M. Berger & GideonKanner, Shell Game! You Can’t Get There from Here: SupremeCourt Ripeness Jurisprudence in Takings Cases at Long LastReaches the Self-Parody Stage, 36 Urb. Law. 671, 673 (2004); ScottA. Keller, Judicial Jurisdiction Stripping Masquerading asRipeness: Eliminating the Williamson County State LitigationRequirement for Regulatory Takings Claims, 85 Tex. L. Rev. 199,240 (2006) (The “Court has stated that the Takings Clause . . .should not be ‘relegated’ to a status below that of other provisionsof the Bill of Rights. Yet, the Williamson County State Litigationprong does just that.” (footnotes omitted)); Michael M. Berger,Supreme Bait & Switch, 3 Wash. U. J.L. & Pol’y at 103 (“Oneunderstandable reaction to the prong two requirement of[Williamson County] is that it perpetrates a fraud or hoax onlandowners.”); J. David Breemer, You Can Check Out But You CanNever Leave: The Story of San Remo Hotel—The Supreme CourtRelegates Federal Takings Claims to State Courts Under a RuleIntended to Ripen the Claims for Federal Review, 33 B.C. Envtl.Aff. L. Rev. 247, 283-98 (2006); Gregory Overstreet, Update on theContinuing and Dramatic Effect of the Ripeness Doctrine onFederal Land Use Litigation, 20 Zoning & Plan. L. Rep. 25, 27(1997).

5

has yet to be made,” id. at 351, and they denounced themany jurisdictional injustices resulting from theinteraction of the state litigation requirement andother jurisdictional doctrines, including its effect ofeviscerating, rather than ripening, federal courttakings review. Id.

The situation has not improved since San Remo. Following recent statements from this Court thatWilliamson County does not impose jurisdictionalrequirements, some federal circuit courts now treat thestate litigation rule as a prudential concept that maybe ignored. David L. Callies, Through a Glass Clearly:Predicting the Future in Land Use Takings Law, 54Washburn L.J. 43, 98 (2014) (citing cases). Yet, otherscontinue to enforce it as a rigid jurisdictional bar. Id.

The result is an chaotic system for adjudicatingan important constitutional right. Del-Prairie StockFarm, 572 F. Supp. 2d at 1032 (the state litigationdoctrine “has led to a number of serious problems.”). Williamson seems to demand that property owners suein state court. Yet, if they do so, the governmentdefendant can remove the case to federal court and getit dismissed there under Williamson County becausethe plaintiff did not complete state litigation. But eventhis is not entirely predictable; some courts may waivethe state litigation rule in a removal case andadjudicate the merits. See generally, J. DavidBreemer, The Rebirth of Federal Takings Review? TheCourts’ “Prudential” Answer to Williamson County’sFlawed State Litigation Ripeness Requirement, 30Touro L. Rev. 319, 332, 343 (2014).

6

There is no more certainty for state court takingscases that are not removed. Williamson Countyindicates that, once such state court litigation ends, theplaintiff can come to federal court with a federaltakings claim. But that is not true; claim and issuepreclusion barriers arising from the very statelitigation that Williamson County says will ripenfederal review will bar a post-state court takings claimin federal court. San Remo, 545 U.S. at 347.

It is no answer to file a takings claim directly infederal court (to bypass state court problems), becausea straightforward application of Williamson Countywill almost surely bar that claim. Still, a few circuitsmay let the claim slip through the state litigationbarrier for prudential reasons. See, e.g., Town of NagsHead v. Toloczko, 728 F.3d 391, 399 (4th Cir. 2013) (“Inthe interests of fairness and judicial economy, we willnot impose further rounds of litigation on theToloczkos.”).

There is no rhyme, reason or uniformity in theWilliamson County state litigation ripeness doctrine.Moreover, the doctrine is wrong and conflicts with thisCourt’s recent decisions. Michael W. McConnell,Horne and the Normalization of Takings Litigation: AResponse to Professor Echeverria, 43 Envtl. L. Rep.News & Analysis 10749 (2013) (noting that givenHorne’s statement on when a takings “case andcontroversy” exists, “Williamson County [the statelitigation doctrine] cannot be correct, at least on itsown terms”). For these reasons, the Court shouldoverrule or modify the state litigation rule. San Remo,545 U.S. at 351 (Rehnquist, C.J., concurring); Stop theBeach Renourishment, Inc. v. Florida Dep’t ofEnvtl. Prot., 560 U.S. 702, 742 (2010) (Kennedy, J.,

7

concurring) (“Until Williamson County is reconsidered. . . .).

This case provides an appropriate vehicle fordoing so. The Town made final decisions denying thedevelopmental use of Arrigoni’s property, Appendix(App.) at B-6 (“it is undisputed that . . . finality hasbeen satisfied”), and failed to provide any mechanismfor just compensation. Arrigoni challenged the landuse denials on non-federal takings grounds in statecourt, and after this state suit failed, filed a 42 U.S.C.§ 1983 action in federal court. This suit asserted inpart that the Town had unconstitutionally takenArrigoni’s property. Apparently applying WilliamsonCounty as a jurisdictional barrier, the district courtdismissed the takings claim on the ground thatArrigoni had to seek compensation for the taking instate court to ripen its claim, but failed to do so. TheSecond Circuit upheld this dismissal of the takingsclaim under Williamson County, while obliquely addingthat the “facts [do not] merit waiver of Williamson’s[state litigation] requirements.” App. at A-3.

This case accordingly presents the court with astraightforward opportunity to reconsider whethertakings claimants pressing otherwise final and ripetakings claims must exhaust state court remediesbefore going to federal court. Alternatively, the Courtcould and should clarify whether and when courtsmay waive Williamson County’s state litigationrequirement, an issue on which the lower federalcourts are in conflict and confusion. Unless this Courtacts, federal courts will continue to issue conflictingand inconsistent rulings on Williamson County,property owners will have no idea where or how theycan litigate a federal takings claim, and legitimate

8

claims will be lost in Williamson’s procedural blackhole.2

STATEMENT OF THE CASE

A. The Property

Arrigoni Enterprises, LLC, is a small, familyowned company organized under the laws of the Stateof Connecticut. App. at C-2. The company owns a 9.1acre parcel of undeveloped land along Mountain Roadin Durham, Connecticut. This land has been in theArrigoni family since 1955. It is sloped, wooded, andconsists largely of rock. Id. at B-1 - B-2. Because of itstopography, the parcel cannot be developed withoutsome excavation and rock crushing. Under the Town’scode, the property is zoned within a DesignDevelopment District (DDD), a classification allowingcertain light industrial uses with a special exceptionpermit. Id. at B-2.

Arrigoni’s parcel is surrounded by parcels thathave been developed, many through excavationactivity. App. at C-9. For example, across the streetlies a parcel in the DDD zone that was developed forlight industrial buildings with excavation and rockcrushing. The property is also bordered by the TilconQuarry, an active quarry operation that excavates anaverage of a million cubic yards of rock per year. Id.

2 See Berger, The Ripeness Game: Why Are We Still Forced toPlay?, 30 Touro L. Rev. at 317 (“Until the Supreme Court steps in,there will be no uniformity.”); Callies, supra, at 103 (“clarification”on Williamson County “would be useful”).

9

B. Arrigoni’s Attempts to ObtainDevelopment Approvals

1. The Town Denies a 2005Rezoning Request

In 2005, Arrigoni began seeking approval to buildthree light industrial buildings on its own property.App. at B-2. It intended to use one of the buildings tohouse its own business, and to rent the other twobuildings to compatible businesses. This plan waspermissible under the DDD zoning, but requiredexcavation and rock crushing (like any development ofthe land). Although Arrigoni had watched its neighborcrush rock in the DDD zone, it applied to move itsproperty to an HID zone because rock processing isclearly allowed in that zone. The Town denied thisrequest. Id.

2. The Town Requires, and ThenDenies, Special Permits

Concluding it should have the same right toexcavate in the DDD zone as its across-the-streetneighbor, Arrigoni next applied to the Town PlanningCommission for a special permit to construct thebuildings on its property and to carry out necessaryexcavation. Id. As a part of that application, Arrigonisubmitted a site development plan which compliedwith all relevant zoning requirements and whichcontemplated removal and processing of approximately70,000 cubic yards of rock and gravel. App. at B-3.

The Commission subsequently ordered Arrigoni toapply for a second special permit (the ExcavationPermit) to secure approval of the excavation, crushing,and removal associated with the site preparation. Although this was the first time the Town had ever

10

forced a development applicant to seek a separateexcavation permit, Arrigoni complied. Id.

On December 21, 2005, the Town Commissiondenied both of Arrigoni’s permits, concluding that therequired rock crushing and processing was prohibitedin the DDD zone. Id. In reaching this decision, theCommission did not explain how Arrigoni could makeany economic use of its property when rock crushingand processing is required for development but theTown construes its code to prohibit it.

C. The State Court Suit andSubsequent Variance Denial

Arrigoni challenged denial of the development andexcavation permits in the Connecticut Superior Court. Id. at B-3. It primarily alleged that the permit denialswere illegal, arbitrary, and an abuse of discretion. Butthe complaint also alleged that the Town violatedArrigoni’s federal and state constitutional rights to dueprocess, equal protection, and just compensation. As aremedy for the alleged constitutional takings violation,Arrigoni sought declaratory relief and a declaration ofjust compensation.

On February 15, 2007, the state court upheld thepermit denials as non-arbitrary. Arrigoni Enterprises,LLC v. Durham Planning & Zoning Comm’n, Nos.CV064004729, CV064004728, 2007 WL 706651 (Super.Ct. Conn. Feb. 15, 2007). The court never addressedArrigoni’s takings claims. Arrigoni sought certificationof its case to the Connecticut Appellate Court, but wasdenied on May 23, 2007. App. at B-3 - B-4.

11

Arrigoni went back to the Town and applied for avariance from the regulatory ban on rock processing inthe DDD zone. Id. at B-4. On August 9, 2007, theBoard of Zoning Appeals denied the variance, in parton the ground that its regulations categorically barredrock crushing. Id.

D. The Federal Suit and Appeal

Having previously tried the state court system,Arrigoni filed a complaint against the Town in theFederal District Court. It alleged that the Town’spermit denials violated Arrigoni’s constitutional rights,as protected under 42 U.S.C. § 1983, including itsfederal right to just compensation for a taking.

The Town moved to dismiss Arrigoni’s takingsclaim as unripe under Williamson County’s statelitigation ripeness requirement. 473 U.S. at 173, 195. In a published opinion, the district court granted themotion. See App. B. The district court specifically heldthat it lacked jurisdiction over the takingsclaim because Arrigoni had not pursued monetarycompensation in a state inverse condemnationaction distinct from its unsuccessful state courtadministrative appeal. App. at B-9.3

Arrigoni appealed. In a summary order ofOctober 18, 2015, the Second Circuit upheld thedismissal of the takings claim under WilliamsonCounty “for the reasons relied on by the District Courtin its well-reasoned opinion.” App. at A-3. Without

3 In related proceedings, the district court also rejected Arrigoni’ssubstantive due process claim and a void for vagueness dueprocess claim. It submitted Arrigoni’s equal protection claim to ajury, which found for the Town. None of these claims are at issuehere.

12

elaboration, the Second Circuit noted that it was “notconvinced that these facts merit waiver of Williamson’srequirements.” Id. Arrigoni now petitions this Courtfor certiorari of the decision below.

REASONS FORGRANTING THE PETITION

I

THIS CASE RAISES AN IMPORTANTISSUE AS TO WHETHER THE COURTSHOULD RECONSIDER WILLIAMSONCOUNTY’S UNWORKABLE DEMAND

THAT PROPERTY OWNERS EXHAUSTSTATE COURT PROCEDURES TO

RIPEN FEDERAL TAKINGS CLAIMS

A. The Origin and Logic of theState Litigation Requirement

In Williamson County, this Court consideredwhether a 42 U.S.C. § 1983 regulatory takings claimarising from the partial denial of a development planwas ripe for federal adjudication. The Court initiallyheld the landowner’s takings claim unripe because thelocal government had not reached a “final decision” onapplication of its regulations to the subject property.4

473 U.S. at 192-94.

Although the final decision ruling in WilliamsonCounty should have ended the case, the Court went on

4 This ripeness requirement is not at issue here, as it was neitherargued or addressed below, and it is clear the Town has made finaldecisions. App. at B-6 (“it is undisputed that the first prong of theWilliamson test as to finality has been satisfied”).

13

in “dicta”5 to articulate a second ripeness hurdle to theplaintiff’s takings claim. Specifically, the Court statedthat a takings claimant must unsuccessfully “seekcompensation through the procedures the State hasprovided for doing so” before resorting to federal court. Id. at 194. The Williamson County Court reasonedthat, because the Fifth Amendment only prohibitstakings occurring “without just compensation,” noactionable violation of the Takings Clause can occuruntil a claimant is denied just compensation. Id. at194-96. From there, the Court concluded that aproperty owner must seek and be denied compensationthrough state procedures before a federal takings claimripens for federal review. Id. The Court ultimatelyobserved that the takings claim in Williamson Countywas unripe in federal court under this rule because theplaintiff had not filed a state court action seekingcompensation under Tennessee’s inverse condemnationstatute. Id.

This Court has since clarified that the statelitigation rule does not apply in state court. San Remo,545 U.S. at 346. A plaintiff can file a federal takingsclaim there without prior litigation. Id.

B. The State Litigation Rule Operates toDestroy, Not Ripen, Takings Cases

There is no doubt the state-court litigationrequirement was conceived as a temporary hurdle tofederal takings review. Williamson County, 473 U.S.at 185 (concluding a takings claim is “premature”before state litigation); DLX, Inc. v. Kentucky, 381F.3d 511, 519-20 (6th Cir. 2004). If a landownerunsuccessfully seeks compensation under state law in

5 Stop the Beach, 560 U.S. at 742 (Kennedy, J., concurring).

14

state court, Williamson County declares, the owner hasa right to a federal hearing on a federal takings claim. But the rule does not function that way in practice. See San Remo, 545 U.S. at 351 (Rehnquist, C.J.,concurring in the judgment); Keller, supra, at 239. Tothe contrary, the requirement typically interacts withother jurisdictional doctrines—such as claim and issuepreclusion and removal—to confuse, delay, and barjudicial review of otherwise ripe federal takings claims. See Sansotta v. Town of Nags Head, 724 F.3d 533,544-45 (4th Cir. 2013); DLX, Inc., 381 F.3d at 519-20. This justifies reconsideration of Williamson County.

1. Williamson County DefeatsFederal Takings Reviewand Relegates Plaintiffsto State Courts

It is now widely recognized that the statelitigation “ripeness” concept actually removes FifthAmendment takings claims from judicial review, ratherthan maturing them for adjudication. DLX, 381 F.3dat 521 (“The barring of the federal courthouse door totakings litigants seems an unanticipated effect ofWilliamson County.”). This result arises fromWilliamson County’s interaction with claim and issuepreclusion barriers grounded in the federalfull-faith-and-credit statute, 28 U.S.C. § 1738. San Remo, 545 U.S. at 346-47. That law “obligesfederal courts to give the same preclusive effect to astate-court judgment as would the courts of the Staterendering the judgment.” McDonald v. City of WestBranch, 466 U.S. 284, 287 (1984). This means federalcourts cannot review claims or issues that were orcould have been litigated in a prior state court action. San Remo, 545 U.S. at 336 & n.16.

15

The understanding that prior state litigationinvolving the same parties will trigger preclusionbarriers at the federal level squarely conflicts withWilliamson County’s declaration that federal courts areopen to takings claims after the plaintiff fails in statecourt. As one district court explained,

Williamson [County] and its progeny placePlaintiffs in a precarious situation. Plaintiffsmust seek redress from the State courtbefore their federal taking claims ripen, andfailure to do so will result in dismissal by thefederal court. However, once having gonethrough the State court system, plaintiffswho then try to have their federal claimsadjudicated in a federal forum face, in manycases, potential preclusion defenses. Thisappears to preclude completely litigants . . .from bringing federal taking claims in afederal forum . . . .

W.J.F. Realty Corp. v. Town of Southampton, 220 F.Supp. 2d 140, 146 (E.D.N.Y. 2002); see also, DLX, Inc.,381 F.3d at 519-20 (“The availability of federal courtsto hear federal constitutional takings claims has oftenseemed illusory, because under Williamson Countytakings plaintiffs must first file in state court . . .before filing a federal claim, and because in decidingthat federal claim, preclusive effect must be given tothat prior state-court action under [Section 1738]according to the res judicata law of the state, includingthe doctrines of merger and bar whereby all claims

16

which could have been brought in an earlier cause ofaction are precluded.” (footnote omitted)).6

Thus, in practice, Williamson County, does not“ripen” anything. Compliance with the statelitigation requirement completely forecloses federaltakings review. See San Remo, 545 U.S. at 346-47. Notably, a property owner cannot evade the preclusionbarrier at the federal level by prosecuting state courtlitigation (for ripeness purposes) that does not includea federal takings claim because federal preclusion barsany takings claim that “could have” been brought in aprior [state] suit, as well as those actually litigatedthere. DLX, Inc., 381 F.3d at 519-20.

The ultimate result of the interaction betweenWilliamson’s state litigation rule and preclusion rules is that a property owner must raise a federal takingsclaim in state court or not at all. This outcome iscontrary to the Congressional mandate of Section 1983on federal court jurisdiction and a century of thisCourt’s precedents. Long ago, this Court held thatthe right and duty of federal courts to protectconstitutional property rights was so essential andimmediate that federal review could not be barred orforestalled by the availability of a state court suit. SeeMartin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304,344-50 (1816) (defending primacy of federal reviewof constitutional issues to avoid state court biasand to ensure uniformity of constitutionaldecision-making); Home Telephone & Telegraph Co. v.

6 126th Ave. Landfill, Inc. v. Pinellas Cnty., 459 F. App’x 896, 900(11th Cir. 2012) (Williamson County “requires that state courts getthe first shot, and the subsequent application of the Full Faith andCredit statute may mean that future plaintiffs are ultimatelyprecluded from then proceeding to federal court.”).

17

City of Los Angeles, 227 U.S. 278, 284-85 (1913)(rejecting a contention that the federal courts had nopower to hear a due process property claim until statecourts passed on the issue, because it would “cause thestate courts to become the primary source for applyingand enforcing the constitution of the United States inall cases covered by the [Fourteenth] Amendment”). More recently, the Court has repeatedly confirmed theimportance and availability of federal courts inconstitutional disputes. See Lynch v. Household Fin.Corp., 405 U.S. 538, 543 (1972) (“The Congress thatenacted the predecessor of [Section] 1983 . . . seemsclearly to have intended to provide a federal judicialforum for the redress of wrongful deprivations ofproperty by persons acting under color of state law.”);Mitchum v. Foster, 407 U.S. 225, 242 (1972) (“The verypurpose of [42 U.S.C.] § 1983 was to interpose thefederal courts between the States and the people, asguardians of the people’s federal rights—to protect thepeople from unconstitutional action under color of statelaw . . . .”).

Williamson County’s evisceration of federal reviewover federal takings claims radically alters thepost-Civil War constitutional system. John F. Preis,Alternative State Remedies in Constitutional Torts, 40Conn. L. Rev. 723, 726 (Feb. 2008) (Williamson Countyrepresents “a marked change from past practice”);Hawley, supra, at 247 (“Williamson County decisivelybroke with this understanding of the TakingsClause and converted the ‘adequate compensation’inquiry—formerly about whether the government hadacted lawfully or not—into a jurisdictional test. Theeffect was to introduce distortions and doctrinalanomalies up and down the length of takings law.”).

18

It is true that the San Remo decision upheld theapplication of preclusion principles in Williamsoncases, even though this results in a loss of federaljurisdiction over many takings claims. But San Remodid not make the federal takings jurisdictional problemarising from Williamson County disappear, nor did itprovide any persuasive justification for withdrawingthe Takings Clause from federal courts. San Remo,545 U.S. at 351 (Rehnquist, C.J., concurring in thejudgment). Certainly, there is no indication inWilliamson County that the Court designed it to cedeexclusive jurisdiction over federal takings claims tostate courts. But that is what has happened underWilliamson County’s state litigation rule.

2. The State Litigation Rule InhibitsState Court Takings Review

Although the San Remo Court was aware ofWilliamson County’s troubling redaction of federaltaking jurisdiction, it declined to correct it at that timebecause (1) the San Remo Court was not presentedwith the question of correcting Williamson County and(2) some Justices believed that takings claimants couldat least get a merits hearing in state courts. San RemoHotel, L.P., 545 U.S. at 347. The first point is clearlynot a problem here. But more importantly for presentpurposes, the second premise regarding state courtavailability is simply wrong. Williamson County’sstate litigation doctrine badly distorts, and oftenthwarts, state court takings adjudication through itsinteraction with 28 U.S.C. § 1441, the federal removalstatute.

The removal statute gives defendants the right toremove “federal question” cases, such as a FifthAmendment takings case, from state to federal court

19

within thirty days of the filing of a state courtcomplaint. Sansotta, 724 F.3d at 545. When this rightof removal is asserted in a takings case filed in statecourt under Williamson County/San Remo, the takingsplaintiff will lose the state court forum—thesupposedly available forum—and will also often bebarred in federal court after removal because statelitigation remains incomplete.7 See, e.g., Del-PrairieStock Farm, 572 F. Supp. 2d at 1034; Seiler v. CharterTwp. of Northville, 53 F. Supp. 2d 957, 962 (E.D. Mich.1999); 8679 Trout, LLC v. N. Tahoe Pub. Utils. Dist.,No. 2:10-cv-01569, 2010 WL 3521952, at *5-6 (E.D. Cal.Sept. 8, 2010) (“Although the claim was ripe when itwas originally filed in state court, it became unripe themoment that Defendants removed it.”).

The problem is that when a government defendantremoves a takings case to federal court, a claim thatwas fully ripe in state court instantly becomes unripedue to Williamson County. Id.; Doak Homes, Inc. v.City of Tukwila, No. C07-1148MJP, 2008 WL 191205,at *4 (W.D. Wash. Jan. 18, 2008) (“Defendants’ decisionto remove this case from state court effectively denied[the plaintiff] an opportunity to utilize [the state’s]procedure for reimbursement, and brought a takingsclaim to this [federal] Court that was not ripe forreview.”). Thus, government defendants can thwartthe state court takings review that post-San Remoripeness doctrine promises and ultimately, destroy aproperly filed takings claim, by removing it to a federal

7 Notably, property owners cannot avoid asserting a FifthAmendment claim in state court if they want to raise one at all. If they file a state court case based only on state law to avoidremoval, they will be forever barred from raising a FifthAmendment takings claim in a separate proceeding by preclusionand merger of claims principles. Rockstead, 486 F.3d at 968.

20

forum where it is unripe under Williamson County’sstate litigation requirement. Despite the irony andinjustice of this system, federal courts often feelconstrained to dismiss removed takings claims underWilliamson precisely because removal rendered thestate procedures inchoate. See, e.g., Koscielski v. Cityof Minneapolis, 435 F.3d 898, 903 (8th Cir. 2006)(dismissing a removed takings claim for lack offinished state court procedures); 8679 Trout, LLC, 2010WL 3521952, at *5-6 (same); CBS Outdoor, Inc. v.Village of Itasca, No. 08 C 4616, 2009 WL 3187250(N.D. Ill. Sept. 30, 2009) (same).8

Thus, property owners lack any reasonable accessto the courts in a jurisdictional regime dominated byWilliamson County. They cannot go directly to federalcourt, unlike other classes of constitutional plaintiffs,due to Williamson County’s state litigation rule. Theycannot count on state court because of the potential forremoval, and they cannot count on federal court reviewafter removal due (again) to Williamson County. This

8 In some removed takings cases, federal courts will remand theclaim to the state tribunal, rather than dismiss it. See, e.g.,Del-Prairie Stock Farm, 572 F. Supp. 2d at 1034; Doney v. PacificCnty., No. C07-5123RJB, 2007 WL 1381515, at *4-6 (W.D. Wash.May 9, 2007). This result is hardly better than dismissal. Thetakings plaintiff did exactly what the Williamson County doctrinesays he must do to litigate a takings claim: file it in state court. But instead of receiving a hearing, the plaintiff is whip-sawedfrom state to federal court and back again, with litigant andjudicial resources wasted along the way, and the takings claim nocloser to adjudication than when first filed. Cf. Martin v. FranklinCapital Corp., 546 U.S. 132, 140 (2005) (“The process of removinga case to federal court and then having it remanded back to statecourt delays resolution of the case, imposes additional costs onboth parties, and wastes judicial resources.”); Breemer, TheRebirth of Federal Takings Review?, supra, at 333.

21

cannot be what the Court envisioned when it issuedWilliamson County. In fact, Williamson Countyaffirmed that takings plaintiffs are entitled to a“‘reasonable, certain and adequate provision forobtaining compensation.’ ” Williamson County, 473U.S. at 194 (quoting Regional Rail Reorganization ActCases, 419 U.S. 102, 124-25 (1974)). This is exactlywhat Williamson County’s state litigation doctrinetakes away.

This case provides one example of the hurdlestakings plaintiffs face under Williamson County. Arrigoni filed a complaint against the Town in statecourt. The complaint included a state constitutionaltakings claim for declaratory relief (as allowed by statelaw),9 App. at B-3, a claim which would have made afederal court takings suit unnecessary. When the statecourts refused to address the state takings issue,Arrigoni turned to the federal courts, filing a federaltakings claim there. But the Second Circuit held thatArrigoni’s takings claim will not be ripe until it goesback to the state courts and files (and loses) a newstate court inverse condemnation suit (assuming thestatute of limitations allows it). Ten years after theTown decided to deny development of Arrigoni’s land,Arrigoni is still seeking a hearing on the merits of itstakings claim. And none of this is because its case isfactually premature; the parties agree the City madefinal decisions and it has not offered compensation. App. at B-6 (“it is undisputed that the first prong of theWilliamson test as to finality has been satisfied”). Thefederal court can decide if a taking occurred, butWilliamson’s strange regime stands in the way.

9 Rural Water Co., Inc. v. Zoning Bd. of Appeals, 947 A.2d 944,950-51 (Conn. 2008).

22

Williamson County’s state litigation ripenessdoctrine serves no purpose except to make it almostimpossible for federal courts to apply the TakingsClause and for takings plaintiffs to vindicate theirconstitutional rights. Gideon Kanner, “[Un]equalJustice Under Law”: The Invidiously DisparateTreatment of American Property Owners in TakingCases, 40 Loy. L.A. L. Rev. 1065, 1077-78 (2007).Certainly, exhausting state remedies does nothing fortakings ripeness when (as here), a property restrictionallegedly causing a taking is final and the governmentagency responsible for the taking has no mechanism toprovide compensation. See Henry Paul Monaghan,State Law Wrongs, State Law Remedies, and theFourteenth Amendment, 86 Colum. L. Rev. 979, 989(1986) (“No authority supports use of ripeness doctrineto bar federal judicial consideration of an otherwisesufficiently focused controversy simply becausecorrective state judicial process had notbeen invoked.”). Williamson County forces takingsclaimants to ride the state litigation merry-go-roundanyway, making a mockery of the concept of access tothe courts. Contra Sackett v. E.P.A, 132 S. Ct. 1367,1375 (2012) (Alito, J., concurring) (affirming right tojudicially challenge concretely felt land userestrictions).

The Court should take this case to reconsider andthen overrule the state litigation doctrine. SeeSeminole Tribe of Fla. v. Florida, 517 U.S. 44, 63(1996) (reconsideration justified “when governingdecisions are unworkable”); Keller, supra, at 240(“Chief Justice Rehnquist was correct—the WilliamsonCounty State Litigation prong should be reconsideredand eliminated”).

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II

THIS CASE PRESENTS THEIMPORTANT ISSUE OF WHETHERAND WHEN COURTS MAY WAIVEWILLIAMSON COUNTY’S STATE

LITIGATION RULE FOR PRUDENTIALREASONS, AN ISSUE ON WHICH

FEDERAL COURTS ARE INCONFLICT AND CONFUSION

Perhaps the most telling condemnation ofWilliamson County’s unworkable character comes fromthe lower courts’ repeated and varied attempts toloosen the state litigation doctrine. Unfortunately,these attempts have done little to stabilize takingslitigation.

Most recently, some courts have decided to treatWilliamson County’s state litigation rule as aprudential concept that can be waived. But not allhave adopted this approach. The lower courts are inconflict on whether the state litigation rule is aconstitutionally-based bar to jurisdiction or a judiciallycreated prudential rule, and, where Williamson Countyis prudential, on whether it can be waived.

24

A. Courts Are Split on WhetherWilliamson’s State LitigationRequirement Is a Strict,Jurisdictional Rule or aFlexible, Prudential Doctrine

Several of this Court’s takings cases have stated,without elaboration, that Williamson County is not ajurisdictional doctrine. Suitum v. Tahoe Reg’lPlanning Agency, 520 U.S. 725, 734 (1997); Stop theBeach Renourishment, Inc., 560 U.S. at 728-29. Mostrecently, the Court cryptically stated that WilliamsonCounty’s exhaustion of alternative remedies doctrine“is not, strictly speaking, jurisdictional.” Horne, 133S. Ct. at 2062. Lower courts have wrestled withthese pronouncements and are now split onwhether Williamson County imposed a jurisdictional orprudential requirements. Callies, supra, at 98. Thequestion matters because, if the state litigationripeness rule is prudential, courts may have the powerto decline to apply the state litigation requirement.

1. The First, Eighth, and EleventhCircuits Apply the State LitigationRule as a Jurisdictional Barrier

Despite seemingly contrary statements from thisCourt, the First, Eighth and Eleventh Circuitscontinue to treat Williamson County’s state litigationrule as a jurisdictional rule, such that a plaintiff’sfailure to comply deprives federal courts of power overtakings claims. Marek v. Rhode Island, 702 F.3d 650,653-54 (1st Cir. 2012) (“It follows inexorably that theplaintiff would have had to pursue this procedure fullyin a state court before a federal court could exercisejurisdiction over his takings claim.”); Downing/Salt

25

Pond Partners, L.P. v. Rhode Island & ProvidencePlantations, 643 F.3d 16, 20 (1st Cir. 2011).

The Eighth Circuit specifically rejected theargument that Williamson’s state litigation rule isprudential, stating “we have held that WilliamsonCounty is jurisdictional.” Snaza v. City of Saint Paul,548 F.3d 1178, 1182 (8th Cir. 2008); see also, Dahlen v.Shelter House, 598 F.3d 1007, 1010 (8th Cir. 2010)(“Failure to satisfy this [state litigation] requirementalone means that their claim is not ripe and thatfederal courts lack jurisdiction to entertain theirclaim.”).

The Eleventh Circuit is in accord with the Firstand Eighth. Busse v. Lee County, 317 F. App’x 968, 972(11th Cir. 2009) (“because he has not alleged that hesought and was denied compensation through availablestate procedures . . . [w]e . . . conclude that the districtcourt did not err in finding that it lacked subjectmatter jurisdiction over Busse’s Takings Clauseclaim.”).

2. The Fourth, Fifth,Sixth, and Ninth CircuitsConsider the State LitigationRequirement to Be Prudential

The Fourth, Fifth, Sixth, and Ninth Circuits haverejected the jurisdictional understanding of WilliamsonCounty’s state litigation requirement, in conflict withthe First, Eighth and Eleventh Circuits. These courts consider the requirement to be a prudential rule only.

The Fourth Circuit’s decision in Sansotta providesa leading example. There, the Fourth Circuit held that“Williamson County is a prudential rather than ajurisdictional rule” and that federal courts “may

26

determine that in some instances, the rule should notapply and [they] still have the power to decide thecase.” Sansotta, 724 F.3d at 545; see also, Toloczko,728 F.3d at 399 (following Sansotta).

The Fifth Circuit also treats Williamson County asa prudential doctrine. Rosedale Missionary BaptistChurch v. New Orleans City, 641 F.3d 86, 88-89 (5thCir. 2011). The Sixth and the Ninth Circuits are inagreement. See Wilkins v. Daniels,744 F.3d 409 (6thCir. 2014); Guggenheim v. City of Goleta, 638 F.3d1111, 1118 (9th Cir. 2010).

3. The Third, Seventh, and TenthCircuits Appear to RecognizeWilliamson County’s PrudentialNature, but Nonetheless Applythe State Litigation Rule as aJurisdictional Barrier

The law in the remaining circuits is unclear. TheThird Circuit understands Williamson County toimpose prudential and jurisdictional (constitutional)requirements. County Concrete Corp. v. Township ofRoxbury, 442 F.3d 159, 164 (3d Cir. 2006) (“Theripeness doctrine serves ‘to determine whether a partyhas brought an action prematurely and counselsabstention until such time as a dispute is sufficientlyconcrete to satisfy the constitutional and prudentialrequirements of the doctrine.”’ (citation omitted)).

27

The Seventh Circuit’s decisions vacillate betweenthe prudential and jurisdictional view. Compare Petersv. Village of Clifton, 498 F.3d 727, 734 (7th Cir. 2007)(prudential view), with Everson v. City of Weyauwega,573 F. App’x 599, 600 (7th Cir. 2014); Hendrix v.Plambeck, 420 F. App’x 589, 591-92 (7th Cir. 2011)(applying a strict, jurisdictional approach). The TenthCircuit has charted a similarly inconsistent path. Compare Alto Eldorado Partnership v. County of SantaFe, 634 F.3d 1170, 1179 (10th Cir. 2011) (prudential),with Gose v. City of Douglas, 561 F. App’x 723, 725(10th Cir. 2014) (absence of state litigation is a“jurisdictional defect”).

4. The Second Circuit’s DecisionExacerbates the Confusion

The Second Circuit previously classifiedWilliamson County as a jurisdictional rule, Murphy v.New Milford Zoning Comm’n, 402 F.3d 342, 347 (2dCir. 2005) (Takings ripeness is a “jurisdictionalinquiry”). But on at least one occasion, and withoutoverruling prior decisions, it endorsed the prudentialview. Sherman v. Town of Chester, 752 F.3d 554, 561(2d Cir. 2014).

Here, the district court’s opinion did not clarifywhether Williamson County’s state litigation is anissue of subject matter jurisdiction or a prudentialdoctrine, though the order reads like a jurisdictionaldecision. The Second Circuit affirmed the districtcourt’s decision, but also indicated that it could waiveWilliamson County under certain facts. This positionaccords with a prudential understanding. See Stopthe Beach Renourishment, Inc., 560 U.S. at 728-29(waiving improperly presented arguments underWilliamson because they were “not jurisdictional”). In

28

thus applying Williamson mechanically, while seemingto recognize that the state litigation requirement couldbe waived under some undetermined set ofcircumstances, the decision below highlights theconfusion among lower courts on whether WilliamsonCounty’s state litigation rule is “merely prudential, notjurisdictional.” Rosedale Missionary Baptist Church,641 F.3d at 88-89.

B. Courts Adopting the PrudentialView Are in Conflict on WhetherWilliamson County Can be Waived

There is also conflict among the courts adoptingthe prudential understanding of Williamson Countyon whether (and when) federal courts may employthat understanding to ignore the state litigationrequirement.

For example, the Seventh Circuit held that the“prudential character of the Williamson Countyrequirements do not . . . give the lower federal courtslicense to disregard them.” Peters, 498 F.3d at 734(emphasis added). This directly conflicts with thedecisions of the Fourth Circuit, which hold that courtsmay “determine that in some instances, the [statelitigation] rule should not apply,” Sansotta, 724 F.3d at545.

The Ninth Circuit sides with the Fourth Circuitand against the Seventh on the waiver-of-statelitigation issue. MHC Fin. Ltd. P’ship v. City ofSan Rafael, 714 F.3d 1118, 1130 (9th Cir. 2013), cert.denied, 134 S. Ct. 900 (2014) (“ ‘In this case, we assumewithout deciding that the claim is ripe, and exerciseour discretion not to impose the prudential

29

requirement of exhaustion in state court.’” (quotingGuggenheim, 638 F.3d at 1118)).10

The enforcement of Williamson County in thelower courts is, in short, a mess. The state litigationdoctrine has no clear boundaries and no certainoutcome. No plaintiff can rationally map out a federaltakings case. Whether one files in federal or statecourt, a takings claim may be quickly kickedout—either under Williamson County in the first caseor removal, then Williamson County, in the second. Ornone of this might happen, depending on whether theparticular court views Williamson County as adiscretionary, prudential rule. Since the courts are inconflict on both the prudential and waiver issue, no onecan predict how it will go.

In this context, it is no surprise that landownersare increasingly foregoing their Takings Clause rightsin favor of more justiciable (though less protective) due

10 There is also no consensus among the courts within theprudential group on what circumstances justify a waiver ofWilliamson County’s state court exhaustion doctrine. Someemphasize the need to avoid “piecemeal litigation.” Toloczko, 728F.3d at 393. Others rely on concerns over wasting litigationresources. Guggenheim, 638 F.3d at 1118 (declining to applyWilliamson’s state litigation rule because “it would be a waste ofthe parties’ and the courts’ resources to bounce the case throughmore rounds of litigation”). Another group considers removal of acase from state court to warrant automatic waiver of WilliamsonCounty’s state exhaustion rule due to fairness or hardshipconcerns. Sansotta, 724 F.3d at 545-46; Sherman, 752 F.3d at 561;Athanasiou v. Town of Westhampton, 30 F. Supp. 3d 84, 89 (D.Mass. 2014).

30

process or equal protection claims.11 It’s just too hard,expensive, time consuming and unfruitful to file atakings claim in the Williamson County era. Thus, thestate litigation doctrine is slowly swallowing theTakings Clause.

This case provides a cleanly postured opportunityto resolve the confusion on whether courts must applyWilliamson County or whether they may waive it whenfaced with a clear controversy. Here, the Town finallydenied Arrigoni’s development applications, App. at B-6, and has neither paid nor offered compensationduring the ten years of administrative and judicialprocess this case has consumed. Arrigoni’s takingsclaim should be fit for review. Horne, 133 S. Ct. at2062 n.6 (“A ‘Case’ or ‘Controversy’ exists once thegovernment has taken private property without payingfor it . . . whether an alternative remedy exists does notaffect the jurisdiction of the federal court.”). Requiringstate litigation for ripeness is unnecessary andinefficient in this case, yet the court below demandedit.

If the Court is disinclined to overrule theWilliamson County state litigation rule outright, theCourt should take the case to clarify that courts maydecline to apply Williamson County’s state litigationdoctrine for prudential reasons (and that doing so is

11 Dibbs v. Hillsborough County, No. 15-10152, --- F. App’x ---,2015 WL 5449225 (11th Cir. Sept. 17, 2015) (due process andequal protection claims against denial of development proposals);Brandywine Estates LP v. Lucas County, No. 3:15-cv-00884, 2015WL 5255002 (N.D. Ohio Sept. 9, 2015) (landowner challenges aphysical taking of land under the Due Process Clause); Lewis v.Carrano, 844 F. Supp. 2d 325 (E.D.N.Y. 2012) (delay in land usepermitting challenged only under the Due Process Clause).

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the most efficient and proper course) when a takingsclaim is otherwise fit for review. Horne, 133 S. Ct. at2062.

Ë

CONCLUSION

The petition for writ of certiorari should begranted.

DATED: November, 2015.

Respectfully submitted,

RICHARD D. CARELLA

Of CounselUpdike Kelly & Spellacy P.C.100 Pearl Street, 17th FloorHartford, Connecticut 06123Telephone: (860) 548-2600Facsimile: (860) 548-2680E-mail: rcarella@uks.com

J. DAVID BREEMER

Counsel of RecordPacific Legal Foundation930 G StreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747E-mail: jdb@pacificlegal.org

Counsel for Petitioner