A Minimalist Solution to Williamson County

Abstract

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County relegated takings claims coming under the Fifth Amendment to a second-class of federal rights. Before a takings plaintiff can sue in federal court, she must first seek compensation through an “adequate state procedure.” Many federal courts have held that requirement means a takings litigant must first seek compensation through state courts if that state provides an inverse condemnation proceeding. But if a takings litigant sues in state court, she will be unable to sue in federal court because of issue preclusion. This effectively shuts the federal courthouse door to many property owners. Only two Supreme Court justices have indicated any interest in revisiting Williamson County. Therefore, land use attorneys who are concerned about federal court access for takings plaintiffs should craft a case that would attract the Court’s attention. This Article argues that land use lawyers should present the Court with a case in which the property owner has used a non-judicial procedure to seek compensation (e.g., asking for compensation from a county board). The Court could then rule that such a non-judicial procedure, such as seeking compensation from a county board, is an “adequate state procedure” that satisfies Williamson County’s requirements. This ruling would minimize the negative effects that Williamson County has wrought on takings plaintiffs.