Knick: Opening the Federal Courts to Taking Claims

Writing for the dissenters, Justice Elena Kagan contended that overruling Williamson County will "subvert important principles of federalism. She emphasized that — unlike other constitutional claims — takings claims require the court to decide "whether, under state law, the plaintiff has a property interest in the thing regulated." The state law questions that underlie taking claims, she noted, are not familiar to federal courts, and she lamented that the Court's decision will "send[] a flood of complex state-law issues to federal courts" and make "federal courts a principal player in local and state land-use disputes." She also objected to the short shrift the majority accorded to stare decisis principles.

Practical Implications

Knick gives developers and other landowners a choice of forum for taking claims, and undoubtedly some will choose to file in federal court. That, in turn, will require federal courts to focus on whether the government defendant has made a final determination on landowner's application: the first ripeness requirement articulated in Williamson County — the requirement the Knick court did not overturn. In Williamson County itself, the Court had concluded that landowner had not received a final determination because landowner had not sought variances that might have permitted development. How many variances a landowner must seek to ripen a taking claim, and how realistic the variance applications must be, remains a question the Supreme Court has not resolved.

In Knick, the Court was focused on regulatory taking claims, by far the largest category of taking claims, but not the only category. Landowners sometimes make taking claims when government activity leads to physical damage to property. For instance, road construction might lead to increased flooding of landowner's parcel. See, e.g., Stewart v. State, 699 N.Y.S.2d 723. Until the Supreme Court says otherwise, Knick appears to open the federal court doors to these claims as well.

Finally, the logic of Knick might well apply to explicit takings: cases where a government agency sets out to exercise its eminent domain power to take private land to pay compensation. Because the Court's opinion in Knick seems to separate the "taking" from the "compensation", and to hold that the taking is a violation of the Constitution without regard to whether the government pays, Knick might open the federal courthouse doors to valuation claims by landowners unhappy with the compensation the state has offered.

How broadly the federal courts — and particularly the Supreme Court — will read the Knick opinion remains to be seen. But the Court's opinion certainly raises as many questions as it answers.

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Stewart E. Sterk is Mack Professor of Law and Michael C. Pollack is Assistant Professor of Law at the Benjamin N. Cardozo School of Law.