It isn’t every day that a state supreme court lays it on the line and makes it clear that the U. S. Supreme Court has misunderstood state law, but it happens and it just happened again in our field. You may recall that in Williamson County etc. Commission v. Hamilton Bank, 473 U.S. 172, 194-195 (1985), SCOTUS refused to provide relief to the aggrieved property owner because it found the case unripe. Why? Because, among other things, the owner who claimed a regulatory taking of its property had not first sought just compensation in the state courts. Said the Supreme Court: “If the government has provided an adequate process for obtaining compensation, and if resort to that process ‘[yields] just compensation,’ then the property owner ‘has no claim against the government for a taking” and therefore it follows that “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.” . . . “The Tennessee state courts have interpreted § 29-16-123 to allow recovery through inverse condemnation where the ‘taking’ is effected by restrictive zoning laws or development regulations,” emphasis added. And so, as the court read Tennessee law, it followed that since the property owner had not shown that the Tennessee inverse condemnation procedure was unavailable or inadequate, the taking claim was premature. So that was that. Or was it?
Actually, if you go to the trouble of reading the statutory and decisional law of Tennessee cited in the Williamson County opinion, you will discover that it does not support the court’s assertion that Tennessee provided a compensatory remedy for regulatory takings. Rather, that law it is limited to cases of physical takings, and does not provide a compensation remedy for regulatory takings. Don’t take our word for it; check it out for yourself.
More important, since it was Tennessee law that was thus in issue, shouldn’t we ask what the Tennessee courts have had to say about all this? After all, when it comes to interpretation and application of state law, with all due respect to the Magnificent Nine, it is the state courts that have the last word. So did the Tennessee law in 1985 (when Williamson County came down) provide a compensation remedy for regulatory takings? No, it did not. How can we say so with such assurance? Good question. We’re glad you asked.
We know this because the Tennessee Supreme Court told us. Check out B & B Enterprises of Wilson County v. City of Lebanon, 318 S.W.3d 839 (Tenn. 2010), and there it is in black-on-white:
“[T]his court has not yet held that a regulatory takings claim can be asserted under Article I, Section 21 of the Tennessee Constitution. Currently, we have recognized only two types of takings claims – physical occupation taking claims and nuisance-type takings claims. Regulatory takings do not fall into either of these categories.” 318 S.W.3d at 845, (citations omitted, emphasis added).
The Tennessee Supreme Court went on to note that the B & B case before it was “not a proper vehicle for deciding the existence or scope of a regulatory taking under Article I, Section 21” because it dealt with the statute of limitations – when is such an action timely, assuming for the sake of argument that it exists, rather than its substantive scope. Which, if Justice Scalia will forgive us for stealing his immortal line from the Renourish the Beach case, this is another example of the judiciary pondering how much wood would a woodchuck chuck if a woodchuck could chuck wood.
This brings us to the point of this post. It is now clear beyond the possibility of rational quibble that SCOTUS was dead-wrong in the Williamson County case. It misread Tennessee law, and its opinion simply misrepresents it. Tennessee did not then permit inverse condemnation actions for regulatory takings, and it still doesn’t. How all those smart clerks drafting SCOTUS opinions and meticulously checking the authorities relied on by them could have missed something so basic is difficult to comprehend.
So in addition to Williamson County’s many other faults that inspired four Supreme Court Justices to suggest in the San Remo Hotel case that its ripeness holding should be reconsidered, we now have a definitive interpretation of Tennessee law by the Tennessee Supreme Court which tells us authoritatively that SCOTUS was just plain wrong when it relied on a nonexistent rule of Tennessee law supposedly allowing regulatory taking actions, when in fact it did not. From which follows the ineluctable conclusion that the morally grotesque, doctrinally deficient, and intellectually rickety “ripeness doctrine” foisted on this long suffering field of law by the Williamson County case and its progeny, stands on feet of clay, even on its own premise.