For nearly 36 years, the United States Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)  severely frustrated, if not all but foreclosed, a property owner’s right to bring a claim in federal court based on a regulatory taking.  Under the Fifth Amendment, a property owner whose land has been “taken” by the government is entitled to just compensation.  There are two types of takings direct or “inverse” or regulatory takings.  A direct taking is where the government declares that it needs your land for public use and offers to pay you compensation.  You might disagree with the amount offered – and that often is the case.  But, a mechanism exists whereby a neutral third party – a condemnation board – will arrive at the compensation that is owed.  On the other hand, an inverse condemnation or regulatory taking occurs when the government takes some action that restricts the use of the land in such a way as to severely impact it beneficial economic use.  For example, if you own a strip of commercial property and intend to develop it and then the municipality comes along and suddenly changes the zoning classification of the parcel such that you can no longer develop it in a beneficial way, then you might have a regulatory takings case.

Under the Court’s Williamson County decision, property owners falling within the later category were required to exhaust state remedies before proceeding to federal court under a claim that their Fifth Amendment rights were violated.  The problem with this is that, as the Supreme Court explained, it creates a Catch-22. If property owners exhaust their state remedies and the state remedies result in an unfavorable outcome, the federal court is powerless to overturn that decision under the doctrines of res judicata and the full faith and credit clause of the Constitution.

Well, yesterday, the Court overturned Williamson County, in Knick v. Township of Scott, 588 U.S. _____ (2019). There the Court held unequivocally a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under Section 1983 at that time.”

The right to bring a claim in federal court under Section 1983 is significant because that statute permits the award of attorneys fees and costs to the land owner.  What this means is that if a property owner has suffered a final adverse land use decision, he should consider an action against the government authority in federal court.  What type of adverse decisions might be subject to such a claims?

  • A change in zoning classification that impacts the future use of a parcel;
  • Environmental regulations that impact the future plans for the parcel;
  • Revoked building permits;
  • A historical designation that impacts the future development of the parcel; and
  • Additional burdensome conditions placed on a previously partially approved parcel.

These a but a few of the types of cases that might be ripe for a challenge.  And, again, the upside is that a challenge could result in the government having to pay your attorneys fees and costs.