                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                _____________

                                No. 02-1504MN
                                _____________

Franklin P. Kottschade,                 *
                                        *
              Appellant,                *
                                        *
      v.                                *
                                        *
City of Rochester,                      *
                                        *
              Appellee.                 *
                                        *
      ----------------------------      *
                                        *
American Forest and Paper               *
Association; Building Industry Legal *
Defense Fund of Southern California; *      On Appeal from the United
California Building Industry            *   States District Court
Association; International Council of *     for the District of
Shopping Centers; National Association *    Minnesota.
of Industrial and Office Properties;    *
National Association of Real Estate     *
Investment Trusts; National Association *
of Realtors; Real Estate Roundtable;    *
and Rochester (Minnesota) Area          *
Builders,                               *
                                        *
      Amici on Behalf of Appellant,     *
                                        *
League of Minnesota Cities; National *
League of Cities; and International     *
Municipal Lawyers Association,          *
                                        *
      Amici on Behalf of Appellee.      *
                                    ___________

                              Submitted: October 10, 2002
                                 Filed: February 13, 2003
                                  ___________

Before RILEY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


      Franklin P. Kottschade, a developer, brought this claim under 42 U.S.C. § 1983
against the City of Rochester, charging that the City had taken his property for public
use without just compensation, in violation of the Fifth Amendment. He now appeals
from a District Court1 dismissal for failure to state a claim upon which relief can be
granted. Because Mr. Kottschade has not exhausted his state court remedies, as
required by current takings jurisprudence, we affirm the District Court’s dismissal of
his complaint.

      In the mid-1990's Mr. Kottschade sought a conditional use permit from the City
of Rochester to build a townhouse project on a 16.4 acre parcel of property which he
had acquired in 1992. In June of 2000, the City granted him a permit for a townhouse
project on part of his property, subject however to nine specific conditions. These
conditions included requirements that provisions be made for increased vehicular and
pedestrian traffic, storm water management, and dedicated parkland. Mr. Kottschade
alleges that the nine conditions, taken together, which were placed on his proposal
to build townhouses on the land, were out of proportion to the impact this
development of the property would have had on the City of Rochester, and that they


      1
      The Hon. Ann D. Montgomery, United States District Judge for the District
of Minnesota.

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rendered the project an economic impossibility, thus in effect taking his property
without just compensation.

       Mr. Kottschade unsuccessfully appealed both to the city’s zoning Board of
Appeal and to the city’s Common Council to eliminate all of the conditions. He then
filed this action challenging the constitutionality of the conditions attached to the
permit, and requesting just compensation under the Fifth Amendment. The City of
Rochester moved to dismiss, arguing that, under Williamson County Regional
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), Mr.
Kottschade could not bring a constitutional takings claim in federal court before
obtaining a final decision from the city, and that the suit was wrongly brought in
federal court in the first instance since it was not yet ripe, given that state court
procedures remained available to the plaintiff.

        The District Court dismissed the action, concluding that until Mr. Kottschade
sought relief in a state-court inverse-condemnation action and had relief denied, the
claim of taking without just compensation was not ripe for decision in a federal court.
In this appeal Mr. Kottschade argues that the Supreme Court decisions in Williamson
and City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997), when
read together, permit him to bring a claim for relief under the Fifth Amendment Just
Compensation Clause in federal court in these circumstances.

                                          I.

       We review a District Court’s grant of dismissal under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim de novo. All facts alleged in the
complaint are taken as true and construed in the light most favorable to the plaintiff.
Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). A motion to dismiss should not
be granted unless the plaintiff can prove no set of facts entitling him to relief. Such
is the case here, and so we affirm the District Court’s dismissal of the claim. Until

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Mr. Kottschade has exhausted his state court remedies, his claim may not be brought
in federal court.

       Mr. Kottschade’s constitutional claim is brought under the Just Compensation
Clause of the Fifth Amendment, which provides, “[N]or shall private property be
taken for public use, without just compensation.” Mr. Kottschade argues that
dismissal of his claim by the District Court was improper because, despite the
Supreme Court’s holding in Williamson, the 1997 City of Chicago decision modifies
the earlier case in such a way as to permit him to seek a remedy initially in federal
court. He asks us to reconcile these two Supreme Court holdings. The plaintiff
requests that this Court acknowledge that City of Chicago has modified the
requirements laid out in Williamson with respect to procedures plaintiffs must follow
in seeking just compensation for takings of property. Under Williamson, a property
owner “has not suffered a violation of the Just Compensation Clause until the owner
has unsuccessfully attempted to obtain just compensation through the procedures
provided by the State for obtaining such compensation.” 473 U.S. at 195. City of
Chicago is said to have modified this holding by permitting plaintiffs in takings cases
to file claims in federal court first as a matter of course. We have held that these
procedures include the filing and prosecution of an action for inverse condemnation
in the state courts. McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir.
1997); Collier v. City of Springdale, 733 F.2d 1311, 1317 (8th Cir. 1984).

       What the plaintiff actually asks is that this Court find that the Supreme Court’s
decision in City of Chicago overrules Williamson in part, specifically its holding that
“[I]f 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.” 473 U.S. at 195. But as the
District Court noted, City of Chicago’s holding addresses only the question of
federal-question jurisdiction over a ripe takings claim. It does not explicitly answer
the question of what is necessary to render a takings claim ripe. The Supreme Court

                                          -4-
has not explicitly overruled or modified the ripeness requirements laid out in
Williamson in the context of takings cases. The requirement that all state remedies
be exhausted, and the barriers to federal jurisdiction presented by res judicata and
collateral estoppel that may follow from this requirement, may be anomalous.
Nonetheless Williamson controls the instant case. Compare this perceived gap in
Supreme Court jurisprudence with this Court’s observations in Commonwealth of
Puerto Rico v. Branstad, 787 F.2d 423 (8th Cir. 1986). There this Court declined to
declare that a Civil War case, Com. of Kentucky v. Dennison, 24 How. 66 (1861), had
been implicitly overruled, while registering its view that the holding of the case had
been substantially eroded. Within a year the Supreme Court had overruled Dennison.
Puerto Rico v. Branstad, 483 U.S. 219 (1987). Whether something similar should
occur here is for the Supreme Court to say, not us.

       The Supreme Court in Williamson defined the exhaustion requirement to
include judicial as well as administrative remedies: “the exhaustion requirement
generally refers to administrative and judicial procedures by which an injured party
may seek review of an adverse decision and obtain a remedy if the decision is found
to be unlawful or otherwise inappropriate.” 473 U.S. at 193. Unlike the appellee in
Williamson, who had not sought variances from a planning commission’s imposition
of requirements for development, Mr. Kottschade has already sought variances, which
have been denied. However, he has not yet pursued a postdeprivation remedy in state
court, as is required by Williamson and subsequent jurisprudence.

       The plaintiff points out, and justly so, that if he is required to seek a
postdeprivation remedy in a state-court inverse-condemnation action, he may end up
being altogether denied a federal forum for what is undoubtedly a federal right. Such
a federal forum, he urges, is guaranteed by 42 U.S.C. § 1983 and its jurisdictional
counterpart, and a plaintiff has a right to bring a § 1983 claim in a federal trial court,
at his option. If plaintiff must go to the state courts, he would presumably need to
show, in order to prevail in an inverse-condemnation action, that a taking had

                                           -5-
occurred, and that just compensation had not been paid. If the state courts hold for
the plaintiff, then all is well, from his point of view, and there would be no need for
recourse to a federal forum. But if they hold against him, for example, on the ground
that no taking has occurred, doctrines of former adjudication may be a bar to a new
action under § 1983 in a federal trial court. The difficulty is not unlike that which
arises when a federal court decides to abstain from the exercise of jurisdiction,
remitting the plaintiff, in the first instance, to his state remedies. See Note,
Consequences of Abstention by a Federal Court, 73 Harv. L. Rev. 1358, 1365-68
(1960). In the abstention context, the Supreme Court has held that a plaintiff required
to resort first to the state courts may reserve his federal claims, submitting to the state
courts only claims arising under state law. In this way, if the plaintiff loses in the
state courts, his way to the federal forum will not be barred by doctrines of former
adjudication. See England v. Louisiana State Bd. of Medical Examiners, 375 U.S.
411 (1964). Plaintiff suggests that a similar framework would be at least a partial
solution to his problem. If he must go to the state courts first, he says, we should hold
now that whatever those courts do adverse to the plaintiff will not bar him from later
filing a federal case on his Takings Clause claim.

       The suggestion has the virtue of logic and is tempting, but we think the part of
prudence is to decline it at this stage of the case. We do not know what the result of
any state-court action may be. Perhaps plaintiff will win in the state courts. Perhaps
he will lose there, but then obtain Supreme Court review on the merits, a review that
would at least afford him an appellate federal forum and would be unquestionably
conclusive on the lower federal courts. Plaintiff may seek to reserve his federal
claims when he files his state-court complaint, and the state courts, by analogy to
England, might honor this reservation. Other possibilities suggest themselves. The
point is this: it is simply too early to say now exactly what res judicata or collateral-
estoppel argument might be appropriate in the future, and exactly what the answers
to any such argument might be. We understand that deferring a decision on this point
is frustrating to the plaintiff, but the federal courts do not sit to decide questions in

                                           -6-
the abstract. If the plaintiff goes to the state courts and loses, and then files a 42
U.S.C. § 1983 action in a federal court, that court, subject to appropriate appellate
review, will be in a much better position to determine the effect of the prior state-
court adjudication.

       The judgment of the District Court, dismissing the complaint for failure to state
a claim on the ground that the case is not yet ripe under the Williamson line of
authority, is affirmed. This action is without prejudice to the right of the plaintiff, if
he files a state-court case and loses, to file a new action in a federal court and make
whatever arguments he wishes with respect to the effect of the prior state-court
adjudication.

      Affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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