Supremes Refuse to Address Conflict Between Williamson County and College of Surgeons

Under the now-familiar facts, NAHB member Frank Kottschade sought to develop a townhouse project on his property but was inundated by such onerous conditions of approval that the project became economically infeasible.  After his request for a variance from the conditions was denied, Kottschade sued in U.S. District Court in Minnesota in May 2001, whereby his claim was dismissed on “ripeness” grounds associated with the U.S. Supreme Court’s Williamson County case. 

Kottschade then appealed to the U.S. Court of Appeals for the 8th Circuit.  Again, he was turned away on ripeness grounds even though the 8th Circuit was fully aware of the potentially conflicting decision in the Supreme Court’s College of Surgeons case.  The 8th Circuit explained that it was up to the Supreme Court to address the Williamson County ripeness problem. 

Following the 8th Circuit’s lead, in June 2003, Kottschade filed a petition for certiorari with the U.S. Supreme Court.  Along with the petition, Kottschade gained support from six amici, including nationally known land use expert Professor Daniel R. Mandelker and U.S. Representative Steve Chabot, Chair of the House Judiciary Committee’s Subcommittee on the Constitution.   Unfortunately, on October 6th, the Supreme Court denied the petition for certiorari.  Thus, the takings fight will take place in state court. 
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