The Santini Reservation. No, the Santini reservation is not Mr. Santini’s desire to avoid waiting for a table at his favorite Chinese restaurant, nor is it a living area designated by Congress for indigenous Italian Americans.

The Santini reservation is a concept enunciated by the United States Court of Appeals for the Second Circuit (Santini v. Connecticut Hazardous Waste Management Service, Docket 02-9150, decided Aug. 28, 2003). The court stated:

That a property owner must pursue compensation through available state procedures, such as a state-law inverse condemnation action, before bringing a Fifth Amendment takings claim has created a Catch-22 for takings plaintiffs. Under Williamson County, a plaintiff may not bring a Fifth Amendment takings claim without first having unsuccessfully pursued a state-law takings claim. Under traditional notions of collateral estoppel, however, the state court’s adverse judgment will often preclude the plaintiffs subsequent Fifth Amendment takings claim. Though application of the preclusion doctrines deprives a large class of plaintiffs of the opportunity to pursue Fifth Amendment takings claims in federal court or, in many cases, anywhere – most of the circuits to have addressed this issue have declined to create an exception to render res judicata and collateral estoppel inapplicable in this situation.

While we have not previously held that parties may use the England reservation procedure in cases that did not properly originate in federal court, we deem it appropriate to permit parties like Santini, who litigate state-law takings claim in state court involuntarily, to reserve their federal takings claims for determination by a federal court.

It would be both ironic and unfair if the very procedure that the Supreme Court required Santini to follow before bringing a Fifth Amendment takings claim – a state court inverse condemnation action – also precluded Santini from ever bringing a Fifth Amendment takings claim. We do not believe that the Supreme Court intended in Williamson County to deprive all property owners in states whose takings jurisprudence generally follows federal law (i.e., those to whom collateral estoppel would apply) of the opportunity to bring Fifth Amendment takings claims in federal court. Thus, in permitting state-court litigants to reserve their federal takings claims for determination in subsequent federal court actions, we decline to interpret Williamson County in such a way as to deprive a large class of prospective plaintiffs of federal forums for their federal takings claims.

Future takings plaintiffs will still have to comply with the Williamson County requirement that they pursue available inverse condemnation actions under state law before bringing federal takings claims. In doing so, however, such parties may explicitly reserve their federal takings claims, making clear to the state court and adverse parties that they intend to bring a federal takings claim in federal court once the litigation of the state law has been completed. This "Santini reservation" will mean that the state court’s judgment on the state-law claim would not have preclusive effect in the subsequent federal action.

The "Santini Reservation" is chilling news for a few obstructionist municipal boards in this state. Before Santini, the property owner was denied a federal remedy, i.e., USC Section 1983, which provides for damages and attorney’s fees. There is no more effective deterrent to illegal and unreasonable decisions than the risk of a monetary award.

I am hopeful that the entire federal system will recognize Santini, giving New Hampshire citizens the benefit of a federal law enforced by a federal court. This newly established exposure should cause decisions at the municipal board level to be more carefully considered for legality and reasonableness, an effect which should benefit all municipalities in the state and the citizens who own property in those municipalities.

Sumner F. Kalman
Plaistow

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