Amendments to the Constitution. The remaining counts advance state law tort claims.
II. LAW AND DISCUSSION
1. Illegal Takings Claims
Defendants seek dismissal of Plaintiffs' illegal taking claims pursuant to Fed.R.Civ.P. 12(b)(1) because this court lacks subject matter jurisdiction. They contend that the claims are not ripe because Plaintiffs have not sought compensation through condemnation proceedings under the Pennsylvania Eminent Domain Code, which is the appropriate remedy for owners claiming property was improperly taken. 26 P.S. § 1-303. In support, they cite Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), which held that "if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Id. at 195, 105 S. Ct. at 3121, 87 L. Ed. 2d at 144.
Plaintiffs do not dispute the application of Williamson to their claims. Instead, they request that we permit them to amend their complaint to include a state law taking claim, presumably pursuant to the Eminent Domain Code.
However, Williamson dictates that federal courts may not decide illegal taking claims unless the plaintiff has been denied just compensation by the state. Plaintiffs have not been denied just compensation in Pennsylvania state courts and their taking claims must be dismissed.
2. Substantive Due Process
The parties have not addressed whether Plaintiffs' substantive due process claims are ripe. Since this issue relates to our jurisdiction, we will address it sua sponte. See Acierno v. Mitchell, 6 F.3d 970, 974 (3d Cir. 1993). We must determine whether the ripeness requirements for illegal taking claims, set forth in Williamson, apply to Plaintiffs' substantive due process claims as well. In Williamson, the Court identified a two-part test to determine whether illegal taking claims are ripe: a final administrative decision by the government entity ("finality requirement") and a denial of just compensation through the use of any available state procedures ("just compensation requirement"). Williamson, 473 U.S. at 186-194, 105 S. Ct. at 3116-3120, 87 L. Ed. 2d at 139-143.
The Third Circuit has held that due process claims are subject to the finality requirement, Taylor Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285, 1290 (3d Cir. 1993), cert. denied, U.S. , 114 S. Ct. 304, 126 L. Ed. 2d 252 (1993), but has not addressed whether they are required to meet the just compensation requirement. We believe that the modern trend of caselaw dictates that substantive due process claims meet the just compensation requirement in certain circumstances. See Bigelow v. Michigan Dept. of Natural Resources, 970 F.2d 154, 157-58 (6th Cir. 1992); Rocky Mountain Materials & Asphalt, Inc. v. Bd. of County Comm'rs, 972 F.2d 309, 311 (10th Cir. 1992); but see Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1575 n.8 (11th Cir. 1989).
In Bigelow, the Plaintiffs were commercial fishermen who challenged the loss of their fishing licenses by a state supported plan which gave the Michigan Indians the exclusive right to fish in certain waters. They advanced an illegal taking claim, an equal protection claim, and a procedural due process claim. The court dismissed the illegal takings claim because Plaintiff had not initiated inverse condemnation proceedings in state court and been denied. 970 F.2d at 157-58 (citing Williamson, 473 U.S. at 195, 105 S. Ct. at 3121, 87 L. Ed. 2d at 144). It also dismissed the equal protection claim, holding that the claim was not ripe because the plaintiffs could "seek a remedy by an inverse condemnation action in the state courts." 970 F.2d at 159.
Finally, the court distinguished prior Sixth Circuit decisions and held that the procedural due process claim was not ripe.
Id. The main issue in the case was whether the plaintiffs were denied full compensation for their licenses by the defendants. Id. at 160. The procedural due process claim merely asserted that plaintiffs were not given an opportunity to defend their rights before the defendants took the license. Id. Thus, the court held, the procedural due process claim was ancillary to the takings issue, and "addressing the plaintiffs' procedural due process claim at this stage would allow future plaintiffs to circumvent the ripeness requirement for taking claims simply by attaching a procedural due process claim to their complaint." Id.
In Rocky Mountain, the plaintiffs filed a civil rights action, alleging that their property had been taken without just compensation and in violation of their procedural due process rights. The Tenth Circuit held that when a plaintiff brings an illegal taking claim and a due process claim, the due process claim will be subjected to the just compensation requirement if "the property interest supporting the due process claim is . . . the same one that [plaintiff] asserts has resulted in the complete taking of its property without just compensation in violation of the Fifth Amendment." Rocky Mountain, 972 F.2d at 311; see also Anderson v. Alpine City, 804 F. Supp. 269, 275-76 (D.Utah 1992) (Rocky Mountain analysis applies to substantive due process and equal protection claims).
In this case it is clear that Plaintiffs' substantive due process claims arise from their illegal taking claims. Plaintiffs' complaint provides that
Plaintiffs have been denied substantive due process in that Defendants intentionally failed to protect Plaintiffs' property interests from damages caused by an increase in stormwater flow from property owned by the Defendants Borough of Palmyra and North Londonderry Township to Plaintiffs' properties which has physically taken Plaintiffs' properties from soil erosion and sinkhole development."