Whether an administrative variance decision precludes a subsequent independent Takings Clause lawsuit

QUESTIONS PRESENTED After a quarter century of continued litigation and a 2018 adjudication on the merits, a Maryland jury awarded petitioner $45,420,076. in damages for a regulatory taking that occurred under this Court’s Penn Central analysis. The Maryland Court of Appeals vacated the jury’s verdict holding that the landowner was required, decades prior, to raise that identical Takings Clause claim in an administrative variance proceeding, before resorting to a court. That variance proceeding asks only whether the regulatory action “substantially advances” a legitimate governmental interest and the administrative agency has no authority to award just compensation. Therefore, Maryland law determines whether there is a taking under the abandoned standard of Agins v. Tiburon, 447 U.S. 255 (1980) and denies the property owner access to a court to pursue an independent takings lawsuit in a court and before a jury. However, in Lingle v. Chevron, 544 U.S. 528 (2005), the “substantially advances” test was unanimously held not to be a valid method of identifying compensable regulatory takings and that it has no proper place in this Court’s takings jurisprudence. 1. The question here is whether an administrative variance decision, that a regulation advances a legitimate government interest, precludes a subsequent independent Takings Clause lawsuit before a court pursuant to this Court’s Penn Central three prong ad hoc factual inquiry. If so, are Maryland residents denied access to a court, by accident of their residence, li QUESTIONS PRESENTED—Continued because of the preclusive effect of the underlying facts determined in the administrative variance proceeding. There is a split between courts of last resort on this significant Fifth Amendment question. 2. The corollary Fifth Amendment query, to question one, is once a court adjudication on the merits, thru a jury’s verdict, has established a Penn Central taking has occurred, by an ad hoc factual inquiry into a government’s conduct, can an expiration date be put on the Constitution’s Takings Clause and its self executing demand that once a court establishes a taking occurred just compensation is required. If so, has the government taken private property by a shorter cut than the constitutional way of paying for it.