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Procedural Implications of Williamson County/First English in Regulatory Takings Litigation: Reservations, Removal, Diversity, Supplemental Jurisdiction, Rooker-Feldman, and Res Judicata

April 2001

Citation: ELR 10353

Author: Thomas E. Roberts

Introduction

Whether Fifth Amendment regulatory takings claims by landowners against local land use authorities can or should be heard in federal court is a topic of sharp debate.1 The law generally tilts in favor of state court resolution, and various rules keep federal district courts from interfering with or reviewing state court judgments. These rules rankle property rights advocates, who assert that it is wrong to close the federal courthouse doors to property owners who wish to assert their Fifth Amendment property rights. Others, however, insist that land use disputes are traditionally and quintessentially matters of local control that should be tried in state courts with review of federal issues limited to direct appeal to the U.S. Supreme Court.

I pursue two questions in this Article. First is whether the prevailing view that takings claims must be filed in state court is correct. This calls for an examination of the nature of the takings cause of action. Whether it is, in its inception, a federal or state claim, or both, matters. The nature of the action affects a federal district court's original, diversity, supplemental, and removal jurisdiction. My conclusion is that the bar to federal court is not as sweeping as I and others have thought it to be.

Thomas E. Roberts is a Professor of Law at Wake Forest University School of Law in Winston-Salem, North Carolina. He would like to thank Vicki Been, Michael Green, and George Walker for their helpful comments. Thomas E. Roberts (c).

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