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Exhaustion of Remedies No Longer Required in Constitutional Takings Cases

Jul 12, 2019 | Written by: Leslie A. Parikh, Esq. |

In Knick v. Township of Scott, Pa. (No. 17-647), decided June 21, 2019, the U.S. Supreme Court overruled the longstanding precedent set forth in Williamson County v. Hamilton Bank (1985), which required a plaintiff bringing a claim under the Civil Rights Act of 1871 (Section 1983) for unconstitutional taking of private property to first exhaust state and local remedies.

At issue in the case was a local Scott, Pennsylvania ordinance that required cemeteries be kept open and accessible to the public during daylight hours. Plaintiff Rose Mary Knick was cited for  violating the ordinance for failing to make a small family graveyard on her 90-acre property open to the public. The plaintiff sued in state court, claiming the ordinance affected the equivalent of a taking of her property. The Town withdrew the violation and stayed enforcement of the ordinance.  The action was subsequently dismissed since the plaintiff could no longer demonstrate the irreparable harm necessary for equitable relief. The plaintiff then filed a claim pursuant to 42 U.S.C. § 1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment.

The plaintiff’s claim was dismissed pursuant to the precedent set forth in Williamson County v. Hamilton Bank, which required property owners to seek just compensation under state law in the state court before bringing a federal takings claim under § 1983. The Third Circuit affirmed.

The Supreme Court majority overruled Williamson County, holding that a government violates the Takings Clause when it takes property without compensation, and that a property owner may bring a Fifth Amendment claim under § 1983 at that time. The Chief Justice rejected that a Fifth Amendment violation occurs only when a state or town denies adequate compensation under post-taking procedures, holding that a Fifth Amendment violation vests immediately when there’s a taking without the payment of just compensation, even if there exists a potential for later compensation.

In her dissent, Justice Kagan articulated her concern that “under modern takings law, there is ‘no magic formula’ to determine whether a given government interference with property is a taking. For that reason, a government actor usually cannot know in advance whether implementing a regulatory program will constitute a taking, much less of whose property. Until today, such an official could do his work without fear of wrongdoing, in any jurisdiction that had set up a reliable means for property owners to obtain compensation. Even if some regulatory action turned out to take someone’s property, the official would not have violated the Constitution. But no longer. Now, when a government undertakes land-use regulation (and what government doesn’t?), the responsible employees will almost inescapably become constitutional malefactors. That is not a fair position in which to place persons carrying out their governmental duties.”

Knick stands as a significant constitutional takings case and will certainly impact local regulatory enforcement, municipalities and municipal employees. 


Leslie A. Parikh, Esq., is a partner with Gebhardt & Kiefer, PC.  She practices primarily in the areas of employment law, civil rights litigation, municipal law, insurance defense, and the representation of public entities in both State and Federal Court.  Contact Ms. Parikh at 908-735-5161 or via email.

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