Knick v. Township of Scott: Holding and Implications

Roger Wynne*

Since 1985, when the U.S. Supreme Court issued Williamson County Regional Planning Commission v. Hamilton Bank,[1] governments had a procedural defense to federal takings claims: if the state provided an adequate procedure for seeking just compensation from a state or local government, the property owner could not claim a violation of the Fifth Amendment’s just-compensation clause until the owner had used the procedure and been denied just compensation.

No longer. On June 21, 2019, the Court overruled that portion of Williamson County in Knick v. Township of Scott.[2] But Knick’s impacts should be modest: removing a procedural defense government attorneys had enjoyed and perhaps channeling more cases into federal courts instead of state courts.

A. The Williamson County state-claim-first rule and San Remo’s portent of a potential do-over.

Williamson County resolved a 42 U.S.C. § 1983 claim brought by a property owner seeking compensation from a county for an alleged taking of property resulting from the county’s denial of development permits.[3] The Court rejected the claim as unripe for two reasons. First, the property owner’s claim was not ripe because the local jurisdiction had not yet reached a final decision: “[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”[4] The Court ruled that, by not requesting a variance, the property owner had failed to exhaust the local jurisdiction’s administrative remedies.[5]

Second, the Court ruled the property owner did not first seek compensation through available state procedures. Noting that “[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation,” the Court reasoned “a property owner has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the State . . . .”[6] From that, the Court announced its state-claim-first rule for claims against local and state governments: “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.”[7]

Two decades later, in San Remo Hotel, L. P. v. City and County of San Francisco,[8] four justices signaled they would welcome an opportunity for a do-over on Williamson County’s state-claim-first rule. Writing for himself and three concurring colleagues, Chief Justice Rehnquist said:

I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic. . . . In an appropriate case, I believe the Court should reconsider whether plaintiffs asserting a Fifth Amendment takings claim based on the final decision of a state or local government entity must first seek compensation in state courts.[9]

B. Knick’s rejection of the state-claim-first rule and its modest implications for regulatory takings litigation in Washington.

Knick presented the opportunity Chief Justice Rehnquist sought to reassess Williamson County’s state-claim-first rule. Knick involved a § 1983 claim pressed by a property owner seeking compensation from an alleged taking arising from a law requiring owners of property with a cemetery to allow the public access to the grave sites. The lower federal courts dismissed the claim under Williamson County’s state-claim-first rule.

By a 5-4 vote, Knick overruled the rule and reversed. Writing for the majority, Chief Justice Roberts reasoned that “because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time.”[10] He added: “A later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place.”[11]

Despite this course change, Knick’s implications for takings litigation in Washington are modest. One is that Washington recitations of the state-claim-first rule are no longer good law.[12] That leaves local and state agencies with one less potential defense against federal takings compensation claims. It also increases the prospect of federal claims being resolved more frequently by federal judges, either because the property owner files the case in federal court or the government removes the case from state court. Whether that is a good thing depends on your relative view of state and federal courts.

Knick left untouched Williamson County’s holding, often repeated by Washington courts, that a federal takings compensation claim is unripe until the agency charged with applying the challenged regulation has issued a final decision.[13] The same logic should apply to claims for compensation under Washington’s takings clause.[14]

Knick also left untouched claims for declaratory relief, which courts have entertained for alleged regulatory takings.[15] This remains true even though Knick reinforced holdings that injunctive relief is not appropriate where compensation is an option.[16] A court need not provide injunctive relief on top of a declaration that a regulation effects a taking—even without an injunction, the government would likely withdraw the challenged regulation rather than face a later claim for damages for a continued taking.

Dissenting, Justice Kagan raised the specter of Knick forcing governments to pay first: “The majority declares . . . that a government taking private property for public purposes must pay compensation at that moment or in advance. If the government fails to do so, a constitutional violation has occurred . . . .”[17] This specter should not frighten us. First, the majority disclaimed a pay-first rule, explaining its holding:

does not mean that the government must provide compensation in advance of a taking . . . . But it does mean that the 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 § 1983 at that time.[18]

Second, even if Knick implies a federal pay-first mandate, remember the Washington Constitution has always contained an express pay-first mandate, barring a taking “without just compensation having been first made.”[19] Despite that express mandate, we in Washington have worked through regulatory takings litigation without whatever consequence Justice Kagan fears an implied federal pay-first mandate would yield.

The bottom line is Knick’s impact on takings litigation in Washington should be modest, serving only to remove a procedural defense and to channel more cases away from state courts and into federal courts.

* Roger Wynne is the Director of the Land Use Section of the Seattle City Attorney’s Office and the author of, among other publications, The Path Out of Washington’s Takings Quagmire: The Case for Adopting the Federal Takings Analysis, 86 WASH. L. REV. 125 (2011). The views Roger expresses are his alone; they are not the opinions or positions of the City of Seattle or its City Attorney.

[1] 473 U.S. 172 (1985).

[2] 139 S.Ct. 2162 (2019).

[3] 473 U.S. at 181–83.

[4] Id. at 186.

[5] Id. at 192–94.

[6] Id. at 194–95.

[7] Id. at 195.

[8] 545 U.S. 323 (2005),

[9] Id. at 352 (Rehnquist, C.J., concurring).

[10] Knick, 139 S.Ct. at 2172.

[11] Id.

[12] E.g., Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 19–20, 829 P.2d 765 (1992).

[13] See, e.g., Asarco, Inc. v. Dep’t of Ecology, 145 Wn.2d 750, 760–61, 43 P.3d 471 (2001); Sintra, 119 Wn.2d at 18–19; Orion Corp. v. State, 109 Wn.2d 621, 631–32, 747 P.2d 1062 (1987).

[14] See, e.g., Orion, 109 Wn.2d at 631–33, 645 (subjecting a claim under both the federal and state constitutions to Williamson County’s exhaustion requirement).

[15] See, e.g., Eastern Enterprises v. Apfel, 524 U.S. 498, 520–22 (1998); Yim v. City of Seattle, 194 Wn.2d 651, 657, 451 P.3d 675 (2019); Guimont v. Clarke, 121 Wn.2d 586, 593, 854 P.2d 1 (1993).

[16] Knick, 139 S.Ct. at 2176.

[17] Id. at 2183 (Kagan, J., dissenting) (citations omitted).

[18] Id. at 2167–68.

[19] Wash. Const. art. I, § 16 (emphasis added).

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