Demarest v. Underhill – Cert. Petition

by: Joseph Grather
25 May 2023

Having visited Underhill, Vermont dozens of times, I had to quickly post notice of the recent petition for certiorari filed by our Owners Counsel of America colleague, Michael Berger, on behalf of the property owner. 2023-5-23 demarest-cert-petition.  (The Town literally sits “under” Mount Mansfield – Vermont’s tallest peak).

The owner’s petition is asking the Supreme Court to review the Second Circuit’s dismissal of a takings’ case on jurisdictional statute of limitations grounds.  The questions presented are:

1. When Knick changed the world of takings litigation by allowing—for the first time since 1985—a property owner with a claim for the unconstitutional taking of property to file suit in federal court, must that decision be applied retroactively, with the time to file suit tolled until the date Knick was decided, so as to give its benefit to property owners who had been precluded from suing in federal court before?

2. When Wilkins confirmed in the real property context that statutes of limitation are not jurisdictional but are merely claim-processing tools, must lower courts now treat statutes of limitation as affirmative defenses to be proved at trial by the defendant?

The takings’ claim appears to be based on the Town’s denial of access to the Demarest property – a 51-acre tract with a single-family residence that was adjacent to a State Highway when Demarest purchased and built his home.  Thereafter, the town vacated the road and designated a large portion a “recreational area”.  Dont skip over footnote 1 – which notes that “the Town reclassified his lot designation from “NR” to “FU.’” Unreal.

From the petition – “When Mr. Demarest purchased his property, the highway was generally a through road, providing continuous access in both directions. After converting it to a trail, the Town advertised the general area as a recreational destination. As a consequence, the Demarest property was subject to trespassers and miscreants who used the property as a dump site, creating a public nuisance at the Town’s invitation. (Complaint, ¶161) The Town also blocked the road with large boulders and refused to remove them when Mr. Demarest complained about the obstruction to his access. (Complaint, ¶153) The upshot of the Town’s actions was to take a 49.5-foot wide swath of private property and convert it to public use without compensation. The Town has taken not only the reasonable access to Mr. Demarest’s home, a common law right of access owned by neighboring landowners, but his reasonable expectation of privacy around the home.”

I’ll let you read the petition – but here’s a teaser:

I. The Court Should Grant Certiorari to Ensure the Retroactive Application of Knick to Redress in Federal Court the Fifth Amendment Rights of Property Owners Who Suffer Regulatory Takings.

A. Knick Revolutionized the Litigation of Regulatory Takings Cases Against Municipalities.

There is no way to underplay the impact of Knick on regulatory takings law. It took a key part of the litigational playbook (Williamson County) and discarded it as being:
“not just wrong. Its reasoning was exceptionally ill-founded and conflicted with much of our takings jurisprudence.” (Knick, 139 S.Ct. at 2178.)

We’ll keep you posted.