Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1 :04-cv—O1376-KAJ Document 72 Filed 07/08/2005 Paget of2
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Matthew F. Boyer ‘`-- i--ni i‘
DIRECT DlAL: (302}-884-6585 »=E -w-.¤t>lh.¤¤r¤
DtRECT FAX: (302)-658-0330
EMAIL: [email protected]
REPLY TO: Wilmington Office
July 8, 2005
BY E-FILING
The Honorable Kent A. Jordan
United States District Judge
U.S. District Court for the District of Delaware
844 North King Street
Wilmington, DE 19801
Re: Acierno et al. v. Haggerty et al., C. A. No. 04-1376
Citation of Subsequent Authority Pursuant To Local Rule 7.l.2(c)
Dear Judge Jordan:
Pursuant to D. Del. Local Rule 7.1.2(o), and on behalf of all the Defendants in the above-
captioned matter, the undersigned hereby calls to the Court’s attention the recent decision of the
United State Supreme Court in Son Remo Hotel, L.P. v. City and County of San Francisco,
California, l25 S. Ct. 2491 (June 20, 2005) on federal takings claims issues.
ln Son Remo, the Supreme Court rejected petitioners? assumption that they had a right to
vindicate their federal takings claims in a federal forum notwithstanding the rule of Williamson
County that such claims are not ripe until the entry of a final state judgment denying just
compensation. Focusing on issues of coinity, the majority noted how in fact, there is LGSCEIFII
precedent for the litigation in federal district court of claims that a state agency has taken
property in violation of the Fifth Amendmenfs takings clause," and then declared as follows:
State courts are fully competent to adjudicate constitutional
challenges to local land use decisions. Indeed, state courts
trndoubtedly have more experience than federal courts do in
resolving the complex factual., technical, and legal questions
related to zoning and land—use regulations.

Case 1 :04-cv—O1376-KAJ Document 72 Filed 07/08/2005 Page 2 of 2
The Honorable Kent A. Jordan
July 8, 2005
Page 2
125 S. Ct. at 2507. See also id. (noting how “this is not the only area of law in which we have
recognized limits to plaintiffs ability to press their federal claims in federal courts”) (citing Ren!
Estate Ass ’n, [nc. v. Mcl\/ary, 454 U.S. 1.00, ll6 (1981), which held that taxpayers are "baned by
the principle of cornity from asserting § 1983 actions against the validity of state tax systems in
federal courts.").
Chief Justice Rehnquist wrote a concurring opinion in Son Remo arguing that this
principle of comity should be limited to state taxation issues. Even this minority view, however,
recognized that under the majority opinion, state courts are likely to decide virtually all federal
takings issues involving state land use agencies. See z. at 2509 (Rehnquist, C5., concurring)
(acknowledging majority’s remark "that state courts are more familiar with the issues involved in
local lan proper to re/egarefederol rokings claims to state eourr.") (emphasis added).
In light of Sem Remo, the `Defendants submit that Plaintiffs’ taltings claims are barred
under recognized principles of comity and federalism. At the very least, San Remo confirms that
Plaintiffs must attempt to file an inverse condemnation action in the Delaware state courts before
asking this Court to uphold or expand the "scant precedent" of federal jurisdiction in a takings
dispute arising from local land use decisions. In surn, we ask that the Supreme Court’s recent
Son Remo decision be considered in connection with Defendants’ Motions to Disrniss now
pending before the Court in this case.
ili Respectf lly,
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Matthew F. Boyer
(Delaware Bar No. 2564)
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cc: Clerk ofthe Court (by e—filing and courtesy copy by hand)
All Counsel of Record (by e—liling)
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