Severance v. Patterson, a recent 5th Circuit Takings Clause case, underscores the second-class status of constitutional property rights, that I have often written about in my work.
The case involved a claim by property owner Carol Severance that the state of Texas had taken her land without compensation by requiring her to allow an easement to the public after Hurricane Rita pushed back the waterline in the coastal area where the property is located, in 2005. The state even seeks to compel her to tear down her house in order to make way for the easement. Such an infringement of property rights would almost certainly be a “physical taking” requiring compensation under the Takings Clause of the Fifth Amendment. Texas, for its part, argues that the state had a preexisting right to a “rolling easement” that encompasses any “dry beach” area and moves inland any time a hurricane or other natural disaster causes a shift in the coastline.
The Fifth Circuit, however, did not address the merits of this dispute because they ruled that Severance had failed to first get a ruling on her claim in state court, as required by the Supreme Court’s 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank. Williamson requires Takings Clause claims to 1) get a “final decision” from the state administrative body that they intend to displace the owner’s rights, and 2) seek and be denied compensation for the loss of their property in state court. As I discuss in this article (pp. 23-24), the first prong of the Williamson test is problematic because it often allows the state to seize property rights without compensation by enabling state officials to delay making a