July 25, 2013

In a PLF beach case, court crushes the Williamson County removal-ripeness trap

By J. David Breemer Senior Attorney

In North Carolina, Texas, California and other regions, Pacific Legal Foundation has worked diligently to protect the property rights of coastal land owners . We have also fought for many years to ensure that property owners of all sorts have equal access to the federal courts to defend their constitutional rights.

Today, the Fourth Circuit Court of Appeals issued a significant, favorable published decision in Sansotta v. Town of Nags Head that advances both causes.

In the Sansotta case, the Town of Nags Head ordered the owners of a row of beach front cottages to remove their structures without compensation and turn over their land to the public for beach recreation. The Town did so on the ground that storms had moved the vegetation line landward of the homes, putting them on a dry sand area. In the Town’s view, dry sand beaches are subject to a “public trust” easement allowing public beach use. It subscribes to the theory that whenever private beachfront property is denuded of vegetation, it is immediately transformed into a public beach, must be opened for public recreation and any pre-existing homes must be removed. It matters not to the Town that the land is privately owned,and lawfully developed before the existence of any so-called “public trust” area.

When the Town tried its novel land grab theories on Sansotta’s property in 2009, he filed suit in North Carolina state court, challenging the Town’s scheme as an unconstitutional taking of his property, and violation of his due process rights. The Town quickly removed (transferred) the case to a federal court on the basis that it raised federal constitutional questions fit for federal judicial review.

However, after substantial litigation in the federal court, the Town then argued that Sansotta’s takings claim was unripe in the federal court under Williamson County’s “state litigation” ripeness doctrine. That doctrine generally says that takings plaintiffs must sue and lose in state court before they can have their federal takings rights heard and protected by a federal court. Takings defendants often wield these two conflicting doctrines — the right to bring a case to federal court and “litigate in state court” ripeness- to deny takings plaintiffs any forum for their claim, or at least, to yank them between state and federal court to exhaust their resources. This is exactly what the Town attempted in Sansotta. And the district court allowed it, dismissing Sansotta’s takings claim as unripe because his claim was in federal court before he unsuccessfully completed state court litigation (because the Town removed the claim out of state court).

Today, the Fourth Circuit rejected this removal-ripeness shell game. In a first-of-its-kind opinion, that court held that the Town had waived Williamson County’s “go to state court first” ripeness defense by voluntarily bringing Sansotta’s claim from state court to federal court through removal. The court noted that it reached this conclusion, in part, to prevent the government from using Williamson County to deny property owners their constitutional rights by procedural gamesmanship. The court therefore reversed the district court and sent Sansotta’s takings claim back for federal litigation. Now Sansotta is free to attack the Town’s seizure of his land and homes for a “public trust” beach as a federal Takings Clause violation in federal court.

This decision ends a vexing takings problem in the Fourth Circuit, and gives property owners across the nation ammunition to stop governments from utilizing Williamson County as a tool to deny them any hearing on the merits of their takings claims. Ultimately, it should do much to restore fairness to federal takings adjudication.

 

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