Important takings case ends up before U.S. Supreme Court.

Byline: BridgeTower Media Newswires

Almost without public attention, the U.S. Supreme Court has taken up out of Pennsylvania a significant takings case one that may revolutionize land use law for years to come.

Since 1985, the Supreme Court has generally barred federal courts from considering claims for just compensation for government takings of private property arising at the state and local levels until after state courts have weighed in. Almost always, however, a failure to succeed at the state level has also resulted in federal courts declining to grant relief as well. Property rights advocates have long sought the means to have federal courts hear more of these takings claims directly without first seeking state court review. And with this most recent case, they might succeed.

The case, Knick v. Township of Scott, involves a local government's attempt to deal with the protection of archaeological resources. Noting a great number of "home burials" since colonial times and desiring public access to grave sites, the township passed an ordinance requiring public and private cemeteries to be open to the public during daylight hours.

A township inspector then asserted that one or more private grave sites existed on Rose Mary Knick's property, although there was no evidence of the same, and that town personnel and the public could visit that alleged grave site by traveling over Knick's private property. The inspector threatened penalties under the ordinance if Knick obstructed access to the asserted grave site area.

Knick filed takings claims against the township in state and federal courts, but this case only involves the federal action. Under a 1985 Supreme Court case, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, a takings claimant could not proceed directly in a federal court. The claimant was required to "ripen" her claim in two ways. The first was by obtaining a "final" decision from the state or local government. This means that if there are any remedies available to reduce the scope of the claim (think of seeking a variance to zoning requirements that inordinately increase the costs of development), the claimant must seek that relief (and the failure to do so may be fatal to the claim). This step was not at issue in Knick v. Township of Scott.

But the second step, which requires a claimant to seek resolution of federal takings claims in state courts, was at issue. In this case, Knick's federal case...