643 F.3d 16 (1st Cir. 2011), 10-1484, Downing/Salt Pond Partners, L.P. v. Rhode Island and Providence Plantations

Docket Nº:10-1484.
Citation:643 F.3d 16
Opinion Judge:LYNCH, Chief Judge.
Party Name:DOWNING/SALT POND PARTNERS, L.P., Plaintiff, Appellant, v. State of RHODE ISLAND AND PROVIDENCE PLANTATIONS, et al., Defendants, Appellees.
Attorney:William R. Landry, with whom Karen Pelczarski and Blish & Cavanagh LLP were on brief, for appellant. Michael Rubin, Assistant Attorney General, with whom Patrick C. Lynch, Attorney General, was on brief, for appellees. Brian A. Goldman on brief for appellee Coastal Resources Management Council. J...
Judge Panel:Before LYNCH, Chief Judge, SOUTER, Associate Justice,[*] and STAHL, Circuit Judge.
Case Date:May 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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643 F.3d 16 (1st Cir. 2011)

DOWNING/SALT POND PARTNERS, L.P., Plaintiff, Appellant,


State of RHODE ISLAND AND PROVIDENCE PLANTATIONS, et al., Defendants, Appellees.

No. 10-1484.

United States Court of Appeals, First Circuit.

May 23, 2011

Heard Jan. 4, 2011.

William R. Landry, with whom Karen Pelczarski and Blish & Cavanagh LLP were on brief, for appellant.

Michael Rubin, Assistant Attorney General, with whom Patrick C. Lynch, Attorney General, was on brief, for appellees.

Brian A. Goldman on brief for appellee Coastal Resources Management Council.

J. David Breemer on brief for amicus curiae Pacific Legal Foundation.

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Before LYNCH, Chief Judge, SOUTER, Associate Justice,[*] and STAHL, Circuit Judge.

LYNCH, Chief Judge.

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, 105 S.Ct. 3108, 87 L.Ed.2d 126 (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, 105 S.Ct. 3108, under a decision of this court. 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, 105 S.Ct. 3108, because the state agency has not yet entered a final decision despite Downing's repeated requests that it do so. 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).

I. Standard of Review

We review de novo the legal question of whether the district court properly dismissed Downing's complaint as unripe for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Deniz v. Municipality of Guaynabo, 285 F.3d 142, 144 (1st Cir.2002). We accept the well-pled factual allegations in the complaint as true and make all reasonable inferences in favor of the plaintiff. Id. In resolving a Rule 12(b)(1) motion, we may also consider other materials in the district court record, including where those materials contradict the allegations in the complaint. Aguilar v. U.S. Immigration & Customs Enforcement, 510 F.3d 1, 8 (1st Cir.2007); Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002).

II. Factual Background

A. Facts as Alleged in the Complaint

In 1992, Downing secured a land use permit, called an Assent, from the Rhode Island Coastal Resources Management Council (CRMC), in order to develop a residential community on a tract of land it owns in Narragansett. Between 1992 and 2007 Downing built homes on twenty-six of the planned seventy-nine lots in the subdivision, installed community infrastructure such as roads and a sewer line, and began infrastructure improvements necessary to build on the remaining lots. While Downing failed to attach a copy of the Assent to its complaint, Downing alleged that none of the Assent's thirty-four stipulations and conditions required it to perform any archaeological or historical surveys on the tract of land.

In 2007, a second state agency, the Rhode Island Historic Preservation and Heritage Commission (HPHC) " became keenly interested in the site of the Salt Pond Residences project from a cultural and archaeological perspective." This was

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because many artifacts had been found in the course of the Salt Pond development project indicating that the land was likely a former Narragansett Indian settlement. These artifacts included digging and grinding tools, fragments of ceramic and stone vessels and a pipe, and projectile points. Downing alleges the HPHC then " concluded that [the land] should be preserved for the benefit of the public at large and not developed at all," and encouraged the CRMC to withdraw the project's CRMC Assent. A July 11, 2007 letter from the HPHC Executive Director to the CRMC, Downing alleges, stated that HPHC " was resolved ‘ to acquire title to the [site] in order to assure its preservation’ " (alteration in Complaint).

The CRMC sent Downing a letter dated August 22, 2007 stating that the Assent " is still valid and remains valid pending a determination by the [CRMC] on the issues raised by the Historic Preservation And Heritage Commission" (alteration in Complaint). In a June 2008 HPHC memorandum,1 Downing alleges, the HPHC confirmed that it had recommended to the CRMC that either construction be prohibited or a " complete archaeological data recovery" project be required as a condition of further construction. Downing estimates that such a data recovery project would cost six million dollars.

Downing alleges that a year after the initial CRMC letter, on August 21, 2008, following a series of informal discussions with the HPHC that did not resolve the dispute, it formally requested that the CRMC submit the matter for hearing. On December 17, 2008 it submitted to the CRMC a legal opinion memorandum and supporting materials from its lawyers arguing that the CRMC and HPHC were violating the United States and Rhode Island Constitutions' takings clauses.

On February 23, 2009, Downing formally notified the HPHC that it would resume construction under its permits absent some response from the agencies. There is no evidence in the record as to whether further communications took place during the months after this February 23 notice.

Downing alleges that neither agency ever responded to any of these communications. The defendants deny that they were nonresponsive, asserting to us as they did to the district court that during the two-year period at issue, informal negotiations were ongoing between the parties to try to resolve the issue.

On June 27, 2009, Downing resumed construction. The same day, the CRMC issued a cease-and-desist order. Downing did not place the order into the district court record, and has not described its contents except to claim that the order did not specify how Downing's conduct violated its permits. On July 15, 2009, Downing formally requested a hearing before the CRMC in order to contest the cease-and-desist order. Downing alleges that it had heard no response by the CRMC to this request by August 6, 2009. On this day, Downing says, it then sent a " final notice" to the CRMC warning that if the CRMC did not promptly respond, Downing would conclude that its pursuit of administrative remedies was futile and would " proceed accordingly."

Downing alleges that the CRMC did not respond to this final notice, though Downing did not wait long for it to do so. Less than three weeks later, on August 24, 2009, Downing filed its complaint in federal

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court alleging, inter alia,2 that the state, CRMC, and HPHC had taken its property for public purposes without just compensation, and denied it substantive and procedural due process and equal protection under the law. Downing sought damages and prospective injunctive relief.

On December 30, 2009, the CRMC issued to Downing a notice of hearing on the issues surrounding Downing's Assent. The district court noted in its March 26, 2010 opinion that in February 2010 the parties had " agreed that the matter would be referred to a CRMC subcommittee for an expedited hearing." Downing/Salt Pond Partners, L.P. v. Rhode Island, 698 F.Supp.2d 278, 279 & n. 1 (D.R.I.2010). At oral argument in this court, counsel for Downing explained that this hearing process was ongoing.3

B. Motion to Dismiss in the District Court

Rhode Island moved to dismiss for lack of subject matter jurisdiction, arguing that Downing had failed to meet either of the Williamson County ripeness requirements for federal Takings Clause claims, and that its other claims were coextensive with the takings claims and should be subject to the same requirements. Downing responded that it was excused from both requirements. As to the requirement that it seek compensation in state court, Downing argued that Rhode Island provided no " reasonable, certain and adequate" procedures " for obtaining compensation." Williamson County, 473 U.S. at 194, 105 S.Ct. 3108 (quoting Reg'l Rail Reorg. Act Cases, 419 U.S. 102, 124-25, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)) (internal quotation marks omitted). This argument was based on language in an opinion in a case under Puerto Rico law that distinguished between " general remedial cause[s] of action under state law" and " procedures specifically designed by the state" to provide compensation for takings. Asociación De Subscripción Conjunta Del Seguro De Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 17 (1st Cir.2007). Downing argued this language overruled an earlier decision of this court, Pascoag, which affirmed a dismissal under Williamson County for failure to use Rhode Island's inverse condemnation procedure. See Pascoag, 337 F.3d at 92-93. Downing also argued that the finality requirement was inapplicable to " direct or physical takings such as are alleged here," and in the alternative that further administrative proceedings would be futile. Downing did not respond to Rhode Island's argument that its non-takings claims should be dismissed along with its takings claims and did not assert that those claims were not also...

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