Alto Eldorado Partners v. City of Santa Fe (644 F. Supp. 2d 1313, 2009)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant County of Santa Fe’s Motion to Dismiss Plaintiffs’ Complaint and Memorandum in Support, filed May 19, 2008 (Doc. 31). The Court held a hearing on January 8, 2009. The primary issues are: (i) whether the Plaintiffs’ takings claim is ripe for adjudication; (ii) whether their other federal claims are subsumed under then’ takings claim and must be premature if the takings claim is premature; and (iii) whether the Court should dismiss the pendent state law claims. Because the Court concludes that the Plaintiffs’ takings claim is premature and that the Plaintiffs’ other constitutional claims are subsumed under the claim, the Court will dismiss the Plaintiffs’ federal claims on jurisdictional grounds. Because the Court thus lacks a basis on which to exercise supplemental jurisdiction, the Court will also dismiss the remaining state claims for lack of subject-matter jurisdiction.

FACTUAL BACKGROUND

This case concerns challenges under both the United States and New Mexico Constitutions, as well as New Mexico state law, to the County Ordinance and to the City of Santa Fe’s similar affordable housing ordinance (the “City Ordinance”), the latter of which the Court has dismissed because the Plaintiffs lack standing to challenge the City Ordinance under the United States Constitution. See Memorandum Opinion and Order at 44, entered March 11, 2009 (Doc. 79). The Plaintiffs are developers active in the City and County of Santa Fe. They contend that the City and County Ordinances are legally invalid on a variety of theories. In essence, however, their claims are that the Ordinances deprive developers of their property by forcing them to set aside significant portions of their developments for affordable housing, at a loss to the developers.

The Court will focus here on the facts relevant to the County Ordinance. Because this is a motion to dismiss, the Court will assume that the Plaintiffs’ factual allegations are true, although the Court notes that a number of the allegations in the Complaint are essentially assertions of law or mixed questions of law and fact that the Court does not assume are true.

Three of the Plaintiffs, Alto Eldorado Partners, Ranch Verano, LLC, and Cimarron Village, LLC, (collectively, “County Plaintiffs”), “own parcels of land in Santa Fe County which have master plan approval and these Plaintiffs intended to proceed with the development of their properties but are being impacted by the” County Ordinance. Complaint for Injunctive Relief for Violation of Civil Rights and New Mexico State Law ¶ 7, at 2, filed February 15, 2008 (Doc. l)(“Complaint”). The bulk of the Complaint discusses the City Ordinance, and then notes that the County Ordinance is similar and describes what the Plaintiffs view as the key differences between the two Ordinances. The Court will therefore lay out most of the allegations involving the City Ordinance, but refer to the County and to the County Ordinance.

The County Ordinance requires that upwards of thirty percent of the lots in a subdivided development be affordable housing lots to be sold to qualified buyers. These set-aside lots must be sold at below market value. See Complaint ¶ 12, at 2-3. This scheme effectively requires property owners not only to dedicate some of their property to others, but requires property owners to become home builders. See Complaint ¶ 23, at 3.

In lieu of providing affordable housing, owners may, at the County of Santa Fe’s discretion, pay money to the County. See id. ¶ 13, at 3. The Plaintiffs acknowledge that the County Ordinance allows for density bonuses — which permit an owner to add more lots or units — -and fee waivers, but state that the waivers defray only some of the losses owners suffer. See Complaint ¶ 15, at 3. The density bonuses are a more complicated story. While allowing for more lots, decreased lot sizes may depreciate the overall value of a subdivision, push the subdivision into a category requiring more extensive infrastructure, or even not be given at all because of neighborhood opposition or other legal restrictions. See id.

When affordable housing units are resold, the difference between the resale price and the original affordable housing price is split between the County of Santa Fe and the qualified buyer. See id. ¶ 16, at 4. This provision effectively denies the original developer any profit after the developer builds the home at a personal loss. See id. ¶ 17, at 4. All funds the County receives under the Ordinance go into a trust fund that is to be used exclusively for affordable housing purposes. See Complaint ¶ 2 1, at 4.

To make projects viable, developers are forced to increase prices on the non-affordable housing lots — or market lots — to recover losses the County Ordinance forces on them, helping drive housing prices out of the reach of the middle class. See Complaint ¶¶ 19-20, at 4. Additionally, the County Ordinance limits the amount of rent certain owners may charge for rental units. See Complaint ¶ 22, at 5.

One difference between the City and County Ordinances is that, for small projects, the County Ordinance requires that sixteen rather than thirty percent of the development be set aside for affordable housing, although the requirement is raised to thirty percent if a density bonus is sought for a smaller project. See Complaint ¶ 23, at 5. The County Ordinance also defines qualified buyers as a larger set of the population: “those who have incomes up to one hundred twenty-one percent (121%) of the ordinance-defined average median income and who may have up to $125,000 in assets.” Complaint ¶ 24, at 5. The Plaintiffs state the County Ordinance is more burdensome than the City Ordinance, because minimum lot sizes in the County are larger — ranging from two- and-a-half acres to twelve-and-a-half acres depending on the hydrologic properties of the zone in which the lot lies and whether a County-approved water system services the lot — see Complaint ¶ 25, at 5, and also because road and infrastructure costs are greater for these larger lots, see id. ¶ 26, at 5. If a development remains economically viable under the County Ordinance, the property owner will usually make payments in lieu of providing affordable housing. See Complaint ¶ 27, at 5-6. For a one-hundred lot subdivision, the fee is $4,960,000.00. See id.

The Plaintiffs maintain that the County Ordinance amounts to an unconstitutional taking because the Ordinance lacks any reasonable nexus between the activity of developing property and the problem of providing affordable housing, because it places disproportionate burdens on owners, because it requires property owners to sell property at below-market rates, because it transfers resale profits to buyers or to the County, and because it may in some cases requires direct payment to the County. See Complaint ¶¶ 30, 32-40, at 7-8. Property owners are not compensated for these effects. See id. ¶ 41, at 8. The Plaintiffs also maintain that the County Ordinance singles out property owners wishing to develop or to subdivide property without any rational basis for doing so, and is an arbitrary exaction. See Complaint ¶¶ 43-46, 48-50, at 9-10. The Plaintiffs further assert that the County Ordinance effectively taxes property owners without any legal authority and without being uniformly applied in a rational manner. See Complaint ¶¶ 58-62, at 11. Finally, the Plaintiffs acknowledge that the County Ordinance does not specifically impose rent controls, but maintain that administrative interpretations of the Ordinance require rent controls in violation of N.M.S.A.1978 § 47-8A-1. See Complaint ¶¶ 65-67, at 12.

PROCEDURAL BACKGROUND

The Plaintiffs filed this lawsuit challenging both the City and County Ordinances. Them Complaint raises six counts: (i) unconstitutional taking of property under the Fifth Amendment; (ii) equal protection; (iii) substantive due process; (iv) injunctive relief under 42 U.S.C. § 1983 and attorneys’ fees under § 1988; (v) taxation without authorization and in violation of article VIII of the New Mexico Constitution; and (vi) illegal rent control in violation of N.M.S.A.1978 § 47-8A-1. The Plaintiffs request that the Court declare the City and County Ordinances invalid, enjoin the Defendants from enforcing their respective ordinances, and grant the Plaintiffs their costs and attorneys’ fees. The Court has dismissed the lawsuit against the City of Santa Fe for lack of standing to bring the federal claims.

The County of Santa Fe moves the Court to dismiss the case against it under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The County raises two main grounds for dismissal of the Fifth-Amendment takings claim: (i) that the claim is not ripe because the Plaintiffs have not sought and been denied just compensation in an inverse-condemnation proceeding in state court; and (ii) that the Plaintiffs’ facial challenge fails because of the County Ordinance’s waiver provision. Additionally, the County seems to argue that a facial challenge under the Takings Clause must involve either a claim that the regulation fails to substantially advance a legitimate government interest, or a claim that the regulation denies a property owner all economically viable use of his or her property. The County notes that the former theory is no longer viable in the wake of Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), while there are no allegations about the latter theory in the Complaint. See Motion at 4. The County further argues that the other federal claims in this case are subsumed under the more specific takings claim and therefore fall with the takings claim. Finally, the County maintains that the Court should dismiss the state claims once there are no federal claims left in the case.

The County argues that the Plaintiffs’ takings claim must satisfy the two-part ripeness test announced in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)(“Williamson ”). The County concedes that a facial challenge bypasses the first prong, but contends that a facial challenge must nonetheless meet the second prong, which requires that a plaintiff first seek compensation through state channels before turning to federal court. See Motion at 5. Because New Mexico provides inverse-condemnation proceedings in state court, the County maintains that the Plaintiffs’ claims are not ripe because they have failed to avail themselves of those proceedings. See id. at 5-6.

Next, the County argues that the Plaintiffs face an imposing task in raising a facial challenge: the Plaintiffs, it asserts, must show that the County Ordinance would not allow for the County to avoid unconstitutional applications. In other words, the Ordinance must be unconstitutional in all its possible applications. The County notes that its Ordinance contains a waiver provision for hardship. This provision, the County contends, prevents the Ordinance from being facially invalid. See Motion at 6-7.

The County then turns to the other federal claims. The due-process and equal-protection claims, it argues, must “ ‘follow the takings claim out of the courthouse door.’ ” Id. at 7 (quoting Landmark Land Co. of Okla., Inc. v. Buchanan, 874 F.2d 717, 722 (10th Cir.1989), abrogated on other grounds by Federal Lands Legal Consortium v. United States, 195 F.3d 1190 (10th Cir.1999)). The County also maintains that, without any viable federal claims, its request for attorney’s fees pursuant to 42 U.S.C. § 1988 automatically fails. See Motion at 8. Finally, the County urges the Court to dismiss the state claims because pendent claims should be dismissed when all federal claims have been dismissed before trial. See id. at 8-9.

The Plaintiffs disagree. They first argue that, because they are not seeking monetary compensation, but making a facial challenge to the constitutionality of the County Ordinance, they need not first pursue relief in state court. See Plaintiffs’ Response to Defendant County of Santa Fe’s Motion to Dismiss Plaintiffs’ Complaint and Memorandum in Support at 3-4, filed June 13, 2008 (Doc. 38)(“Response”). They contend that the cases the County cites are inapposite and that the Supreme Court of the United States has allowed facial-takings challenges without plaintiffs being first denied a remedy in state court. See id. at 4-11.

The Plaintiffs next argue that the County Ordinance’s waiver provision suffers from a number of flaws that render it incapable of shielding the Ordinance from facial attack. First, they contend that hardship waivers are conditioned on an owner being deprived of all economically viable use of his or her property. The Plaintiffs maintain that, because there are several ways that a taking can occur without a complete deprivation of economic viability, the waiver is not applicable to certain situations that constitute a taking. See Response at 12-13. Second, the Plaintiffs contend that the waiver provision allows for standardless discretion, which they maintain makes the provision void and unable to save the Ordinance. See Response at 13-15. Third, the Plaintiffs argue that the waiver creates an impossible-to-meet standard, because no applicant for a waiver could ever show that the Ordinance deprived them of all economic use of his or her property. See Response at 15-17. The Plaintiffs conclude by asserting that under the County’s theory the Plaintiffs’ due-process and equal-protection claims are tied to the takings claim and thus, with the takings claim stating a cause of action, the other claims should as well. See id. at 17.

In response, the County criticizes the Plaintiffs for failing “to defend a single one of [their] causes of action,” and for failing to affirmatively argue about validity of their non-takings claims, although the County fails to explain why the Plaintiffs should address arguments the County did not raise in its motion. Reply in Support of Defendant County of Santa Fe’s Motion to Dismiss Plaintiffs’ Complaint [Doc. 31] at 1, filed July 29, 2008 (Doc. 56)(“Re-ply”)(brackets in original). The County then turns to addressing the different ways in which a takings claim may be raised. The County first argues that the Plaintiffs have not stated a valid cause of action for a physical taking, see id. at 2-3, or for an economic-deprivation taking, see id. at 3-4. The County then contends that exaction claims under Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), cannot be facial challenges and reiterates its position that the ability of the County to waive requirements is fatal to any facial challenge. See Reply at 4-6. The County then returns to its ripeness argument and asserts that the Plaintiffs must first seek relief in state court even for facial challenges. See id. at 7-8.

The County next argues that Lingle v. Chevron USA Inc., has eliminated the possibility of injunctive or declaratory relief in takings claims that are premised on the challenged law’s failure to substantially advance a legitimate state interest, relegating such claims to substantive due process. See Reply at 8. The County then, for the first time, directly addresses the Plaintiffs’ due-process and equal-protection claims, while noting that “we will review the viability of Plaintiffs’ facial substantive due process claim even though they do not discuss it in their Response.” Reply at 9.

On the substantive due-process claim, the County argues that its Ordinance is rationally related to the governmental interest in affordable housing. See Reply at 9-10. The County further contends that they cannot show a protectable property interest because of the discretion inherent in the land-use approval process, and that the County’s failure to apply for a waiver or a variance makes their claims not ripe for review. See id. at 10-12. As to the equal-protection claim, the County argues that the claim is not ripe, that the County has failed to allege facts showing “that they are similarly situated to others who have received disparate favorable treatment,” and that the County Ordinance passes the rational-basis test. See Reply at 12.

At the hearing, Robert H. Freilich, the County’s attorney, argued that the County Ordinance was modeled after ordinances from several states that had survived facial challenges. See Transcript of Hearing at 51:5-10 (taken January 8, 2009)(Frei-lich)(“Tr.”). Mr. Freilich contended that the Plaintiffs claims were not ripe or were invalid because, although they sought injunctive and declaratory relief, that relief was available only for laws that failed to advance a government interest, which he asserted that the Plaintiffs could not show. See id. at 66:23-68:5.

Ronald J. VanAmberg, the Plaintiffs’ counsel, stated that he had a problem with the procedural posture of many of the County’s arguments, which he contended were only raised in their Reply and during oral argument. See Tr. at 82:5-83:8 (Van Amberg). Mr. VanAmberg agreed that all the Plaintiffs’ federal claims were asserting facial challenges. See Tr. at 88:24-89:7 (Court & VanAmberg).

LAW REGARDING RIPENESS IN FACIAL-TAKINGS CHALLENGES

Ripeness is one aspect of Article Ill’s requirement that federal courts hear only genuine cases or controversies. Because the Takings Clause does not categorically forbid the government from taking property for public use, but only from taking property without just compensation, a unique ripeness doctrine has developed for takings cases. Generally, a plaintiff asserting a taking must first receive a final decision from the relevant state agency and also use state-provided avenues of relief to seek just compensation before a taking can be said to occur. A facial challenge to a law, however, may not implicate these requirements. It is undisputed that the first ripeness requirement, often known as the finality requirement, does not apply to facial challenges. The law is murkier, however, when the issue becomes whether a facial challenge is exempt from the second ripeness requirement. There is some guidance in this area from the Supreme Court of the United States, but little relevant law from the United States Court of Appeals for the Tenth Circuit. Casting the net more widely reveals that at least five circuits have issued opinions more or less on point, but that the circuits are split on whether a facial challenge to a law may proceed in federal court absent a plaintiffs pursuit of just compensation at the state level.

1. Supreme Court Cases.

The unique nature of the Takings Clause has led to special ripeness doctrines that apply to claims that a person’s property has been taken without just compensation. The leading Supreme Court case in this area is Williamson. The genesis of the test laid out in Williamson, however, lies in earlier case law.

What would later become the Williamson ripeness test began to take shape in cases such as Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), abrogated in part by Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). In Agins v. City of Tiburon, the Supreme Court held, in an opinion authored by Justice Powell, that, because the plaintiffs had “not submitted a plan for development of their property as the ordinances permit, there is as yet no concrete controversy regarding the application of the specific zoning provisions.” 447 U.S. at 260, 100 S.Ct. 2138. The Supreme Court stated that therefore “the only question properly before us is whether the mere enactment of the zoning ordinances constitutes a taking.” Id.

The Supreme Court’s first significant discussion of ripeness under the Takings Clause was in Hodel v. Virginia Surface Min. and Reclamation Ass’n, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). The case was brought in federal court, challenging several provisions of the federal Surface Mining Control and Reclamation Act of 1977. See Hodel v. Virginia Surface Min. and Reclamation Ass’n, Inc., 452 U.S. at 268, 273, 101 S.Ct. 2352. One of the issues raised was a facial challenge under the Just Compensation Clause, which the Supreme Court addressed on the merits. The Supreme Court, in an opinion by Justice Marshall, stated that, because the challenge was a facial one, the issue was limited to “whether the ‘mere enactment’ of the Surface Mining Act constitutes a taking.” Hodel v. Virginia Surface Min. and Reclamation Ass’n, Inc., 452 U.S. at 295, 101 S.Ct. 2352 (quoting Agins v. City of Tiburon, 447 U.S. at 260, 100 S.Ct. 2138). The Supreme Court held that the plaintiffs could not “legitimately raise complaints ... about the manner in which the challenged provisions of the Act have been or will be applied in specific circumstances, or about their effect on particular coal mining operations.” Hodel v. Virginia Surface Min. and Reclamation Ass’n, Inc., 452 U.S. at 297, 101 S.Ct. 2352. Additionally, the plaintiffs had not “availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting either a variance” or a waiver, and this “potential for such administrative solutions confirm[ed] the conclusion that the taking issue ... simply [wa]s not ripe for judicial resolution.” 452 U.S. at 97, 101 S.Ct. 2193.

Williamson built on the principles that the Supreme Court articulated in Hodel v. Virginia Surface Min. and Reclamation Ass’n, Inc. and announced a two-part test for determining ripeness in most takings claims. Williamson concerned a lawsuit filed in federal court to challenge the constitutionality of a county commission’s rejection of the plaintiffs proposed plat for the development of a project called the Temple Hills Country Club Estates. See 473 U.S. at 177-182, 105 S.Ct. 3108. The Supreme Court held, in an opinion by Justice Blackmun, that, because the plaintiff had “not yet obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, nor utilized the procedures Tennessee provides for obtaining just compensation, [its] claim [wa]s not ripe.” Id. at 186, 105 S.Ct. 3108.

On the first point, the Supreme Court in Williamson noted that the plaintiff had not sought approval of a variance and therefore “not yet obtained a final decision regarding how it will be allowed to develop its property.” Id. at 190, 105 S.Ct. 3108. The Supreme Court stated that the relevant “factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Id. at 191, 105 S.Ct. 3108. While recognizing its similarity to an exhaustion requirement, which 42 U.S.C. § 1983 does not contain, the Supreme Court held that the “the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury” and thus differs from an exhaustion requirement, which involves exhaustion of proceedings aimed at remedying an adverse decision. Williamson, 473 U.S. at 193, 105 S.Ct. 3108.

On the second point, the Supreme Court in Williamson noted that “[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation.” Williamson, 473 U.S. at 194, 105 S.Ct. 3108. “Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking.” Williamson, 473 U.S. at 194, 105 S.Ct. 3108 (internal quotation marks omitted). Accordingly, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson, 473 U.S. at 195, 105 S.Ct. 3108.

Several years after Williamson, the Supreme Court first addressed whether a facial challenge under the Takings Clause had to satisfy the Williamson test. The petitioners in Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992), were challenging a rent-control ordinance, but had not sought a rent increase. See 503 U.S. at 533, 112 S.Ct. 1522. The Supreme Court, in an opinion by Justice O’Connor, stated that “a claim that the ordinance effects a regulatory taking as applied to petitioners’ property would be unripe” because they had not sought a rent increase, id. at 533-34, 112 S.Ct. 1522 (emphasis in original)(citing Williamson, 473 U.S. at 186-97, 105 S.Ct. 3108), but that the petitioners were “mounting] a facial challenge to the ordinance,” Yee v. City of Escondido, 503 U.S. at 534, 112 S.Ct. 1522 (emphasis in original). The Supreme Court noted that the petitioners were alleging “that the ordinance does not substantially advance a legitimate state interest no matter how it is applied.” Id. (internal quotation marks omitted). “As this allegation does not depend on the extent to which petitioners are deprived of the economic use of their particular pieces of property or the extent to which these particular petitioners are compensated,” the Supreme Court held that the “facial challenge [wa]s ripe.” Id.

In 1997, the Supreme Court again mentioned the ripeness requirements for facial challenges under the Takings Clause. The Supreme Court discussed the finality requirement for an as-applied regulatory-taking claim, but also noted that “ ‘facial’ challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face an ‘uphill battle.’ ” Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 736 n. 10, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997)(Souter, J.)(quoting Keystone Bituminous Coal Ass’n. v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987)).

Recently, however, the Supreme Court decided a case that may call into question the extent to which facial challenges evade the Williamson requirements. In Lingle v. Chevron U.S.A. Inc., the Supreme Court held, in an opinion by Justice O’Connor, that whether a law “substantially advance[s] a legitimate state interest,” id. at 540, 125 S.Ct. 2074, was not “a valid method of identifying regulatory takings for which the Fifth Amendment requires just compensation,” Lingle v. Chevron U.S.A Inc., 544 U.S. at 545, 125 S.Ct. 2074. It is this now-discarded theory that Yee v. City of Escondido discussed when holding that a facial challenge under the Takings Clause need not satisfy Williamson. See Yee v. City of Escondido, 503 U.S. at 534, 112 S.Ct. 1522.

The Supreme Court’s opinion in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005), by Justice Stevens, includes the Supreme Court’s most recent mentioning of facial-takings challenges. San Remo Hotel, L.P. v. City and County of San Francisco principally concerned whether plaintiffs who litigated takings claims in state court, pursuant to the ripeness requirement Williamson imposes, were exempt from the normal operation of issue-preclusion rules when they later reached federal court. Despite this focus, the Supreme Court, while noting that Lingle v. Chevron U.S.A. Inc. eliminated their primary cause of action, stated that the petitioners “were never required to ripen the heart of their complaint — the claim that the [challenged regulation] was facially invalid because it failed to substantially advance a legitimate state interest-in state court.” Id. at 345, 125 S.Ct. 2491. The Supreme Court, also, however, may have recognized a limited scope for facial challenges being exempt: “Petitioners’ facial challenges ... were ripe, of course, under Yee v. Escondido, in which we held that facial challenges based on the ‘substantially advances’ test need not be ripened in state court — the claims do ‘not depend on the extent to which petitioners are deprived of the economic use of their particular pieces of property or the extent to which these particular petitioners are compensated.’ ” San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. at 340 n. 23, 125 S.Ct. 2491 (quoting Yee v. Escondido, 503 U.S. at 534, 112 S.Ct. 1522) (citation omitted)(emphasis added). The Supreme Court did not address whether the elimination of the substantially advances theory still allowed other facial challenges to avoid the Williamson ripeness test.

2. Courts Allowing Immediate Facial Challenges in Federal Court.

Some circuit courts have either directly held or else noted that facial challenges under the Takings Clause are exempt from meeting the Williamson ripeness requirements. The United States Court of Appeals for the First Circuit, the United States Court of Appeals for the Fourth Circuit, and the United States Court of Appeals for the Seventh Circuit have all come to this conclusion. Arguably, some cases from the United States Court of Appeals for the Ninth Circuit have similar holdings, but a careful reading of these case reveals that the Ninth Circuit exempts only particular kinds of facial challenges from Williamson.

The First Circuit has held that a plaintiff raising a facial challenge need not first seek just compensation from the state. In one recent case, the First Circuit held that, “to the extent that the [plaintiff] is making a facial statutory challenge, its takings claim need not be brought first to a Commonwealth body, either administrative or judicial.” Asociacion De Subscripcion Conjunta Del Seguro De Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 14 (1st Cir.2007). In support of this proposition, the First Circuit cited the broad language from Suitum v. Tahoe Regional Planning Agency and Yee v. City of Escondido, as well as two circuit cases, Quicken Loans, Inc. v. Wood, 449 F.3d 944 (9th Cir.2006), and Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294 (1st Cir.2005). Pharm. Care Mgmt. Ass’n v. Rowe in turn merely mentions in passing that facial challenges are “usually ripe ‘the moment the challenged regulation or ordinance is passed.’ ” Id. at 307 (quoting Suitum v. Tahoe Regional Planning Agency, 520 U.S. at 736 n. 10, 117 S.Ct. 1659).

The Fourth Circuit has reached a similar conclusion. In Holliday Amusement Co. of Charleston, Inc. v. South Carolina, 493 F.3d 404, 407 (4th Cir.2007), the Fourth Circuit discussed the Williamson ripeness test in the context of an as-applied regulatory taking and noted: “We recognize, of course, that the state procedures requirement does not apply to facial challenges to the validity of a state regulation.” Id. at 407 (citing San Remo Hotel, L.P. v. City and County of San Francisco and Lingle v. Chevron U.S.A. Inc.). The Fourth Circuit also, however, seems to distinguish regulatory takings from challenges to a law’s validity under the Takings Clause. The Fourth Circuit noted that, “given that South Carolina opens its courts to inverse condemnation claims arising from regulatory takings,” a plaintiff bringing a regulatory-taking claim must satisfy both parts of Williamson. Holliday Amusement Co. of Charleston, Inc. v. South Carolina, 493 F.3d at 407.

In the Seventh Circuit, there are several cases indicating that Williamson is inapplicable to facial claims. In Peters v. Village of Clifton, 498 F.3d 727 (7th Cir. 2007), decided after Lingle v. Chevron U.S.A. Inc., the Seventh Circuit did not directly address ripeness in facial challenges, but noted, as part of a general review of ripeness and takings claims, that “the Supreme Court has held that many facial challenges to legislative action authorizing a taking can be litigated immediately in federal court.” Peters v. Village of Clifton, 498 F.3d at 732 (citing San Remo Hotel, L.P. v. City and County of San Francisco and Yee v. City of Escondido). Earlier, the Seventh Circuit similarly noted: “Litigants are not required to meet the Williamson County ripeness requirements when solely mounting a pre-enforcement facial challenge to the constitutionality of a statute under the Fifth Amendment.” Daniels v. Area Plan Comm’n of Allen County, 306 F.3d 445, 458 n. 13 (7th Cir.2002). Daniels v. Area Plan Comm’n of Allen County relied on what is apparently the first Seventh Circuit case to discuss ripeness in facial claims, Triple G Landfills, Inc. v. Board of Comm’rs of Fountain County, Ind., 977 F.2d 287 (1992). In Triple G Landfills, Inc. v. Board of Comm’rs of Fountain County, Ind., the Seventh Circuit discussed Williamson and the importance of “a final decision,” because “takings cases are fact-intensive, and require a careful examination of the challenged decision’s economic impact.” Id. at 289. The Seventh Circuit noted that the lawsuit at issue, however, was a facial attack presenting a purely legal issue, because “the case revolve[d] exclusively around the question of whether the ordinance is a ‘zoning ordinance’ under Indiana law.” Id. The Seventh Circuit held that the issue was therefore ripe, albeit without specifically addressing the just-compensation prong of Williamson.

Quicken Loans, Inc. v. Wood is a Ninth Circuit case that the First Circuit cited in support of facial challenges being exempt from Williamson. Quicken Loans, Inc. v. Wood itself quickly disposed of the question whether a facial-takings challenge, premised on the theory that certain statutes did “not substantially advance legitimate state interests,” was ripe. 449 F.3d at 953. Quicken Loans, Inc. v. Wood, however, relies exclusively on San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095 (9th Cir.1998). This earlier case expressly noted that “a facial takings claim alleging the denial of the economically viable use of one’s property is unripe until the owner has sought, and been denied, just compensation by the state,” id. at 1101, while for the specific theory that a statute does not substantially advance legitimate state interests, “the denial of just compensation is irrelevant for purposes of ripeness,” id. at 1102. This distinction between varieties of facial challenges arises from the Ninth Circuit’s decision in Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir.1996). Sinclair Oil Corp. v. County of Santa Barbara read Yee v. City of Escondido’s exemption of facial challenges from Williamson to apply only to challenges based on the claim that a law did not “substantially advance legitimate state interests.” Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d at 406. Following Yee v. City of Escondido, the Ninth Circuit noted that such a theory “ ‘does not depend on the extent to which [landowners] are deprived of the economic use of their ... property or the extent to which [they] ... are compensated.’ ” Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d at 406 (quoting Yee v. City of Escondido, 503 U.S. at 534, 112 S.Ct. 1522)(alterations and omissions in Sinclair Oil Corp. v. County of Santa Barbara). “In contrast, the extent to which a landowner has been compensated is relevant when he maintains that a regulation has denied him the economically viable use of his land.” Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d at 406-07. The Ninth Circuit thus held that this second variety of facial challenge remained subject to Williamson’s mandate that a plaintiff first attempt to obtain just compensation from the state.

3. Courts Not Allowing Immediate Facial Challenges in Federal Court.

Standing opposed to the conclusions reached in the First, Fourth, and Seventh Circuits are cases from the United States Court of Appeals for the Third Circuit and the Ninth Circuit. Both circuits have concluded that a facial challenge to a law based on the Takings Clause is not ripe without a plaintiff first seeking just compensation. As noted above, however, the Ninth Circuit recognizes a discrete exception for claims premised on a law not substantially advancing legitimate state interests. This distinction is of negligible importance today given the Supreme Court’s elimination of such a theory under the Takings Clause in Lingle v. Chevron, U.S.A., Inc.

County Concrete Corp. v. Township of Roxbury, 442 F.3d 159 (3d Cir.2006), concerned a facial challenge to an ordinance. The Third Circuit held that Williamson’s finality rule did not apply to a facial challenge. See County Concrete Corp. v. Township of Roxbury, 442 F.3d at 164-65. Relying on Sinclair Oil Corp. v. County of Santa Barbara, the Third Circuit reached a different result regarding the application of Williamson’s requirement that a plaintiff exhaust state provisions for just compensation. The Third Circuit held that, while the plaintiffs’ facial challenge “may save them from the finality rule, it does not relieve them from the duty to seek just compensation from the state before claiming that their right to just compensation under the Fifth Amendment has been violated.” County Concrete Corp. v. Town of Roxbury, 442 F.3d at 168.

The Ninth Circuit has the most extensive body of case law discussing ripeness and facial challenges under the Takings Clause. The Ninth Circuit’s most recent case on the subject, Equity Lifestyle Props., Inc. v. County of San Luis Obispo, 548 F.3d 1184 (9th Cir.2008), involved both facial and as-applied challenges to a mobile-home rent control ordinance. See id. at 1189. The Ninth Circuit noted that the first prong of Williamson “applies only to as-applied challenges.” Equity Lifestyle Props., Inc. v. County of San Luis Obispo, 548 F.3d at 1190 n. 12 (citing Hacienda Valley Mobile v. Morgan Hill, 353 F.3d 651, 655 (9th Cir.2003)(“Facial challenges are exempt from the first prong of the Williamson ripeness analysis because a facial challenge by its nature does not involve a decision applying the statute or regulation.”)). The second prong, however, “must be satisfied in order to bring either an as-applied or a facial challenge.” Equity Lifestyle Props., Inc. v. County of San Luis Obispo, 548 F.3d at 1190 n. 13.

As the Plaintiffs point out, arguing that the procedure for just compensation must be part of the challenged law itself, the Ninth Circuit stated that the plaintiff had “not satisfied the second requirement of the Williamson test, because it has not attempted to obtain relief through the state procedure designed to provide com pensation for rent control losses.” Id. at 1190 (emphasis added). The Ninth Circuit noted that, “[i]n a 1997 decision, the California Supreme Court established a procedure by which a party injured by a government taking could seek compensation.” Id. at 1190-91 (citing Kavanau v. Santa Monica Rent Control Bd., 16 Cal.4th 761, 66 Cal.Rptr.2d 672, 941 P.2d 851 (1997)), Because the plaintiff had not availed itself of this “Kavanau adjustment” process before filing suit in federal court, the plaintiffs as-applied claims were unripe. Equity Lifestyle Props., Inc. v. County of San Luis Obispo, 548 F.3d at 1192. On the other hand, the Ninth Circuit found the plaintiffs facial challenge to be ripe because a facial challenge is considered as of the time of enactment of the challenged ordinance. In 1984, when the ordinance at issue came into effect, “California had no damages remedy for regulatory takings.” Id. at 1193. “Because no adequate state remedy was available in 1984, when the ordinance was enacted,” the Ninth Circuit held that the plaintiff “need not fulfill the second prong of Williamson in order for its facial challenge to be ripe.” Id.

Similarly, in Ventura Mobilehome Communities Owners Ass’n v. City of San Buenaventura, 371 F.3d 1046 (9th Cir.2004), the Ninth Circuit held: “Whether it is construed as a facial or as-applied takings claim, the [plaintiff] still must satisfy the second ripeness requirement [from Williamson] by showing it exhausted available state remedies for compensation.” Ventura Mobilehome Communities Owners Ass’n v. City of San Buenaventura, 371 F.3d at 1052. The Ninth Circuit stated that the plaintiff had not alleged that he had pursued various avenues of relief the challenged ordinance itself provided, but also more generally that the plaintiff had not “sought redress in state court” under California’s compensation scheme. Id. at 1053.

As Sinclair Oil Corp. v. County of Santa Barbara acknowledges, the Ninth Circuit early case law on the facial takings claims was not entirely consistent. See id. at 406 (citing Lake Nacimiento Ranch Co. v. San Luis Obispo County, 841 F.2d 872 (9th Cir.1987), in which the Ninth Circuit ruled on the merits of a facial challenge despite no indication of an attempt to obtain just compensation). At least since Sinclair Oil Corp. v. County of Santa Barbara, however, the Ninth Circuit has been requiring that plaintiffs asserting facial challenges — unless the challenge was under the substantially advances theory— first seek just compensation at the state or local level before coming to federal court with a takings claim.

LAW REGARDING INJUNCTIVE AND DECLARATORY RELIEF FOR TAKINGS VIOLATIONS

The Supreme Court has also discussed whether equitable relief is available when there are procedures for a plaintiff to pursue just compensation, and whether the Takings Clause requires just compensation as a remedy or whether equitable relief is sufficient. As to the former, the Supreme Court has indicated that the possibility of securing just compensation will foreclose equitable relief, but has not completely foreclosed allowing equitable relief even when just compensation is available. As to the latter scenario, the Supreme Court has held that the Fifth Amendment mandates just compensation for violations of the Takings Clause, but has not addressed the related issue whether equitable relief is permissible given that the Takings Clause generally allows a government to take private property for public use so long as it pays just compensation.

1. Availability of Equitable Relief.

In Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), the Supreme Court considered the constitutionality of the Price-Anderson Act, which sets limits on the liability of private, federally licensed nuclear-power plants in the event of a nuclear accident. See 438 U.S. at 64-65, 67, 98 S.Ct. 2620. The Supreme Court held that the challenge to the statute was ripe. See id. at 81-82, 98 S.Ct. 2620. The case raised due process and takings claims, see id. at 69, 98 S.Ct. 2620, but the Supreme Court did not address the takings claim because it did not read the Price-Anderson Act as withdrawing a Tucker Act remedy and because the appellees “coneede[d] that if the Tucker Act remedy would be available in the event of a nuclear disaster, then their constitutional challenge to the Price-Anderson Act under the Just Compensation Clause must fail.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 94 n. 39, 98 S.Ct. 2620. The Supreme Court, however, apparently considered that it had jurisdiction over the claim, noting in response to Justice Rehnquist’s concurrence in the judgment, that the appellees were “not seeking compensation for a taking, a claim properly brought in the Court of Claims, but ... requesting a declaratory judgment that since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 71 n. 15, 98 S.Ct. 2620. The Supreme Court stated: “While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 71 n. 15, 98 S.Ct. 2620. Duke Power Co. v. Carolina Environmental Study Group, Inc. was decided before Williamson, but its footnote on jurisdiction retains at least some force.

Under the Coal Industry Retiree Health Benefit Act of 1992 (“Coal Act”), 26 U.S.C. §§ 9701-9722, various coal mining companies were required to transfer surplus amounts from existing benefits funds to a new fund providing health benefits for coal mine workers. Several cases involving the Takings Clause arose out of the litigation over the Coal Act, implicating Duke Power Co. v. Carolina Environmental Study Group, Inc. and the availability of equitable relief.

In re Chateaugay Corp., 53 F.3d 478 (2d Cir.1995), involved a claim that the transfers the Coal Act required amounted to an unconstitutional taking without just compensation. The United States Court of Appeals for the Second Circuit addressed whether the challenge was ripe and noted that the Supreme Court has often required plaintiffs claiming a taking by the federal government to seek compensation under the Tucker Act, but had taken jurisdiction over several cases without reference to the Tucker Act. See In re Chateaugay Corp., 53 F.3d at 492-93 (citing Duke Power Co. v. Carolina Environmental Study Group, Inc., Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993), and Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986)). The Second Circuit “resolve[d] this apparent inconsistency by looking not so much to what the Supreme Court has said, but to what it has done.” In re Chateaugay Corp., 53 F.3d at 493. With this, in mind, the Second Circuit “conclude[d] that a distinction must be drawn between (a) statutes burdening real and tangible property, and (b) those requiring direct transfers of money to the government.” Id. Thus,

where the challenged statute requires a person or entity to pay money to the government, it must be presumed that Congress had no intention of providing compensation for the deprivation through the Tucker Act. Common sense dictates such a presumption.... [The normal] presumption would tend to nullify all existing legislation adjusting the benefits and burdens of economic life: Every dollar paid pursuant to a statute would be presumed to generate a dollar of Tucker Act compensation. Instead, we hold that the Williamson County/Preseault presumption of Tucker Act availability must be reversed where the challenged statute, rather than burdening real or physical property, requires a direct transfer of funds to the government.

In re Chateaugay Corp., 53 F.3d at 493.

In another Coal Act case, the Seventh Circuit briefly noted that it agreed with In re Chateaugay Corp. and thus the issue before it was ripe for decision. See Davon, Inc. v. Shalala, 75 F.3d 1114, 1127 n. 11 (7th Cir.1996). Then, in 1998, the Coal Act reached the Supreme Court. In Eastern Enterprises v. Apfel, a plurality of four justices adopted in large part the ripeness holding of In re Chateaugay Corp. Confronting a takings claim under the Coal Act, the plurality noted that

a claim for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1019, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). In this case, however, Eastern does not seek compensation from the Government. Instead, Eastern requests a declaratory judgment that the Coal Act violates the Constitution and a corresponding injunction against the Commissioner’s enforcement of the Act as to Eastern.

Eastern Enterprises v. Apfel, 524 U.S. 498, 520, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998).

The plurality went on:

On the one hand, this Court’s precedent can be read to support the ... conclusion that regardless of the nature of relief sought, the availability of a Tucker Act remedy renders premature any takings claim in federal district court. See Preseault v. ICC, 494 U.S. 1, 11, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990); see also Monsanto, supra, at 1016, 104 S.Ct., at 2879-2880. On the other hand, in a case such as this one, it cannot be said that monetary relief against the Government is an available remedy.... The payments mandated by the Coal Act, although calculated by a Government agency, are paid to the privately operated Combined Fund. Congress could not have contemplated that the Treasury would compensate coal operators for their liability under the Act, for “[e]very dollar paid pursuant to a statute would be presumed to generate a dollar of Tucker Act compensation.” In re Chateaugay Corp., 53 F.3d at 493. Accordingly, the “presumption of Tucker Act availability must be reversed where the challenged statute, rather than burdening real or physical property, requires a direct transfer of funds” mandated by the Government. Ibid. .... Instead, as we explained in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 71, n. 15, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), the Declaratory Judgment Act “allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.” Moreover, in situations analogous to this case, we have assumed the lack of a compensatory remedy and have granted equitable relief for Takings Clause violations without discussing the applicability of the Tucker Act. See, e.g., Babbitt v. Youpee, 519 U.S. 234, 243-245, 117 S.Ct. 727, 136 L.Ed.2d 696 (1997); Hodel v. Irving, 481 U.S. 704, 716-718, 107 S.Ct. 2076, 2083-2084, 95 L.Ed.2d 668 (1987). Without addressing the basis of this Court’s jurisdiction, we have also upheld similar statutory schemes against Takings Clause challenges. See Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal, 508 U.S. 602, 641-647, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); Connolly, 475 U.S., at 221-228, 106 S.Ct. 1018, “While we are not bound by previous exercises of jurisdiction in cases in which our power to act was not questioned but was passed sub silentio, neither should we disregard the implications of an exercise of judicial authority assumed to be proper” in previous cases. Brown Shoe Co. v. United States, 370 U.S. 294, 307, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (citations omitted). Based on the nature of the taking alleged in this case, we conclude that the declaratory judgment and injunction sought by petitioner constitute an appropriate remedy under the circumstances, and that it is within the district courts’ power to award such equitable relief.

524 U.S. at 521-22, 118 S.Ct. 2131.

Justice Breyer’s dissent, joined by three justices, also agreed that the Due Process Clause was more appropriate, see 524 U.S. at 554, 118 S.Ct. 2131 (Breyer, J., dissenting), effectively creating a five-vote bloc for the Takings Clause not applying. While focused on the Due Process Clause, the dissent also highlighted the problem of allowing injunctive relief under the Takings Clause: “[Cjould a court apply the same kind of Takings Clause analysis when violation means the law’s invalidation, rather than simply the payment of ‘compensation?’ ” Eastern Enterprises v. Apfel, 524 U.S. at 556, 118 S.Ct. 2131 (citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987)) (“[The Takings Clause] is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”).

2. Requirement of Just Compensation.

Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), and its progeny generated a series of Supreme Court cases that often ended in dismissal on jurisdictional grounds, but ultimately produced a decision that the Takings Clause required just compensation as a remedy. Reasoning that ordering just compensation was tantamount to compelling a government to exercise its eminent domain powers and usurping the function of the political branches, the California Supreme Court in Agins v. City of Tiburon decided that a plaintiff could not obtain compensation for a regulatory taking, but only declaratory or mandamus relief, with the regulation being invalidated. See id. at 274-77, 157 Cal.Rptr. 372, 598 P.2d at 30-31. On reviewing Agins v. City of Tiburón itself, the Supreme Court held that the challenged regulation was not a taking. Three times after that the Supreme Court of the United States heard appeals involving the holding in Agins v. City of Tiburón or similar issues, but did not reach the merits of the issue: whether the Takings Clause required just compensation for the temporary taking that occurred up until the regulation’s invalidation. The Supreme Court ultimately held that just compensation is a constitutionally mandated remedy for a taking. The long path the Supreme Court took in finally getting to that holding sheds some light on how takings violations can and must be remedied.

San Diego Gas & Elec. Co. v. City of San Diego began the line of Supreme Court cases that would ultimately lead to First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal. holding that the Takings Clause required compensation. The Supreme Court found that the issue was not ripe in San Diego Gas & Elec. Co. v. City of San Diego, however, because a situation where a state court finds a taking and decides “that further proceedings are necessary to determine the compensation that must be paid has been regarded as a classic example of a decision not reviewable in this Court because it is not ‘final.’ ” 450 U.S. at 632-33, 101 S.Ct. 1287. This result was because “the federal constitutional question embraces not only a taking, but a taking on payment of just compensation. A state judgment is not final unless it covers both aspects of that integral problem.” Id. at 633, 101 S.Ct. 1287 (internal quotation marks omitted). The Supreme Court found that it did not have jurisdiction because of the reverse of the classic situation — the lower court had found damages inappropriate, but had not determined whether a taking had occurred. See id.

Justice Brennan, in a lengthy dissent whose discussion of the merits would ultimately triumph in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal., would have found the issue ripe. Justice Brennan considered “invalidation” insufficient and proposed that,

once a court finds a police power regulation has effected a “taking,” the government entity must pay just compensation for the period commencing on the date the regulation first effected the “taking,” and ending on the date the government entity chooses to rescind or otherwise amend the regulation.... Should the government decide immediately to revoke or otherwise amend the regulation, it would be hable for payment of compensation only for the interim during which the regulation effected a “taking.” ... Alternatively the government may choose formally to condemn the property, or otherwise to continue the offending regulation: in either case the action must be sustained by proper measures of just compensation---- The States should be free to experiment in the implementation of this rule, provided that their chosen procedures and remedies comport with the fundamental constitutional command.... The only constitutional requirement is that the landowner must be able meaningfully to challenge a regulation that allegedly effects a “taking,” and recover just compensation if it does so.

San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 658-60, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981).

Williamson was the second case in the line, establishing the two-pronged ripeness test. Next came MacDonald, Sommer & Frates v. Yolo County, in which the Supreme Court again dismissed on ripeness grounds because the finality rule from Williamson was not met. Justice White, in dissent, wrote:

Even where a property owner is deprived of its property only temporarily, if that deprivation amounts to a taking the Constitution requires that just compensation be paid. If the governmental body that has taken the property decides to rescind the taking by amending the regulation, that does not reverse the fact that the property owner has been deprived of its property in the interim.

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 362, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986) (emphasis added). Justice White noted:

I assume here that the normal action by the governmental entity following a determination that a particular regulation constitutes a taking will be to rescind the regulation. I believe that this is a permissible course of action, limiting liability for the taking to the interim period. Of course, the governmental entity could actually condemn the property and pay permanent compensation for it.

Id. at 362 n. 4,106 S.Ct. 2561.

The Supreme Court finally reached the merits in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal. A California court had dismissed a church’s takings claim for compensation on the grounds that only declaratory or mandamus relief was available as a remedy for a regulatory taking. The Supreme Court noted that the issue was ripe for review because the church had met the requirement “that one seeking compensation must ‘seek compensation through the procedures the State has provided for doing so,’ ” when the state courts dismissed its damages claim on the basis of the relief not being available. 482 U.S. at 312 n. 6, 107 S.Ct. 2378 (quoting Williamson, 473 U.S. at 194, 105 S.Ct. 3108). The Supreme Court noted that “the [Fifth] Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal., 482 U.S. at 315, 107 S.Ct. 2378. In the course of holding that compensation was required during the time that a regulation amounting to a taking is in effect, the Supreme Court noted that while, “as a matter of law, an illegitimate taking might not occur until the government refuses to pay, the interference that effects a taking might begin much earlier, and compensation is measured from that time.” Id. at 320 n. 10,107 S.Ct. 2378. “Once a court determines that a taking has occurred, the government retains the whole range of options already available — amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain.” Id. at 321, 107 S.Ct. 2378. The Supreme Court ultimately held that, on the assumption, given the posture of the case, that “the Los Angeles County ordinance has denied appellant all use of its property for a considerable period of years, ... invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy.” Id. at 322, 107 S.Ct. 2378. The Supreme Court did not state that compensation was the only remedy for a taking or that an injunction or invalidation of an ordinance was impermissible, but neither did the Supreme Court mention that such relief was also an acceptable corollary to the constitutionally mandated just compensation.

The dissent in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal., like the majority, indicated that, when a regulati