May 23: In the U.S. Court of Appeals, First Circuit, Case No..10-1484 , Appealed from the District Court of Rhode Island, Providence. As described by the Appeals Court, Downing/Salt Pond Partners, L.P., frustrated by two state agencies' restrictions on its development of a coastal residential subdivision in Narragansett, Rhode Island, appeals the district court's dismissal of its Federal takings claims under the Supreme Court's ripeness requirements for such claims, set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Downing argues that it is excused from one Williamson County requirement, that it pursue any "adequate procedure for seeking just compensation" that state law provides, id. at 195, under a decision of the First Circuit. It argues it is excused from the other Williamson County ripeness requirement, that the relevant government agency has reached a "final decision regarding the application of the regulations to the property at issue," id. at 186, because the State agency has not yet entered a final decision despite Downing's repeated requests that it do so.
The Appeals Court rules, "We affirm the dismissal of the complaint, reaching only the first issue. We hold again that Rhode Island's inverse condemnation procedure satisfies the Williamson County requirements and must be followed. See Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 93 (1st Cir. 2003)."
In its summary, the Appeals Court said additionally, "We decline to address the issues raised for the first time by amicus in its brief, which argues that Williamson County's ripeness rules apply only to Takings Clause claims, leaving plaintiffs free to pursue in federal court Due Process Clause and Equal Protection Clause claims that arise from the same allegedly illegal state conduct. '[A]mici may not make up for waiver by a party,' Family Winemakers of Cal. v. Jenkins, 592 F.3d 1, 17 n.23 (1st Cir. 2010), and may not introduce a new argument into a case, Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 74 n.5 (1st Cir. 1996). We note only that we have previously held that plaintiffs cannot, merely by recasting its takings claim "in the raiment of a due process violation," evade the Williamson County ripeness requirements. Deniz, 285 F.3d at 149. While the two agencies strenuously deny that they have been unresponsive or have unreasonably delayed their decisions on Downing's project, we express the hope that the parties will promptly attempt to resolve any remaining disagreements."
Access the complete opinion (click here). [*Land, CA1]
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