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May 6, 1993

BAY AREA REGIONAL TRANSIT DISTRICT, a public entity, and DOES 1 through 100, Defendants.


The opinion of the court was delivered by: BARBARA A. CAULFIELD


 Roger Picard, Thalia Picard, and Ted Bolls (plaintiffs) move for remand of this action to state court and for an award of attorney's fees incurred in bringing this motion. For the reasons set forth below, plaintiffs' motion and request are DENIED.


 Plaintiffs own property in Alameda County situated between Paseo Padre Parkway and Washington Boulevard, and between the Southern Pacific and the Union Pacific Railroads. Defendant, Bay Area Rapid Transit District ("BART"), is a governmental agency having the power of eminent domain. On November 3, 1992, plaintiffs brought an action for damages against defendant in California Superior Court, County of Alameda, Southern Division, Case No. H-165436-7.

 In or about May, 1962, BART began approving studies and plans showing extensions to its system that would require acquisition of plaintiffs' property. BART has continued to approve such studies and plans over the last thirty years. The most recent study confirming the alignment of the extension through plaintiffs' property is a final environmental impact report BART certified and adopted no earlier than 1991. Within the last five years, BART has repeatedly designated plaintiffs' property for acquisition in resolutions, plans, and public announcements. BART also has demanded that other public agencies, such as the City of Fremont, restrict or discourage development of plaintiffs' property for uses other than the extension.

 BART acquired a portion of plaintiffs' property in or about 1987. BART's plans continue to indicate that acquisition of the remaining portions of the property will be necessary to build the extension; however, thus far BART has failed to acquire the remainder of the property, or to commence proceedings to condemn it. Plaintiffs maintain that BART's delay in instituting condemnation proceedings has depressed the fair market value of their property and has deprived them of its pre-announcement benefit and value.

 The complaint contains two causes of action: an inverse condemnation claim based on BART's unreasonable precondemnation activities; and, a claim alleging a violation of plaintiffs' federal constitutional rights to substantive due process, procedural due process, equal protection of the laws, and just compensation under the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983. *fn1" Plaintiffs' also base the just compensation claim of the second cause of action on provisions of the California Constitution. *fn2"

 BART filed a notice of removal with this court on December 2, 1992, pursuant to 28 U.S.C. § 1441(b), which provides removal jurisdiction over cases involving a federal question. On December 31, 1992, plaintiffs filed a timely motion for remand of the removed action to state court and a request for attorney's fees, pursuant to 28 U.S.C. § 1447(c).


 I. Because this Court Has Subject Matter Jurisdiction Over This Action, Section 1447(c) Does Not Require Remand to State Court

 Plaintiff argues that pursuant to the Judicial Code, which requires that a removed case be remanded to state court if "it appears that the district court lacks subject matter jurisdiction," 28 U.S.C. § 1447(c), the court must remand this matter to state court. Defendant notes that some of plaintiffs' claims arise under federal law; therefore, in determining whether remand is proper the court follows the well-pleaded complaint rule:

Federal courts have jurisdiction to hear, originally or by removal, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action, or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.

 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). An examination of plaintiffs' complaint under the well-pleaded complaint rule reveals a basis for this court's exercise of jurisdiction.

 A. This Court Does Not Have Subject Matter Jurisdiction Over Plaintiffs' Taking Claims

 In their first cause of action, plaintiffs allege an inverse condemnation of their property based on BART's unreasonable pre-condemnation activities. The second cause of action alleges that plaintiffs have been denied state and federal constitutional protection against the taking or damaging of property without just compensation. This second taking claim is apparently based on the same theory as the first. To the extent that plaintiffs' taking claims arise under state law, no federal question is presented. BART contends, however, that because plaintiffs base their taking claims in part on the U.S. Constitution, federal jurisdiction exists under 28 U.S.C. § 1331.

 A claim for unreasonable pre-condemnation activity states a type of regulatory taking claim. Kaiser Dev. Co. v. City and County of Honolulu, 913 F.2d 573, 575 (9th Cir. 1990), cert. denied, 111 S. Ct. 1414, 113 L. Ed. 2d 467 (1991), and cert. denied, 111 S. Ct. 1430, 113 L. Ed. 2d 484 (1991). To the extent such claims are based on the U.S. Constitution, a federal question is raised. In Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), however, the Supreme Court articulated two requirements that must be fulfilled before a regulatory taking claim is ripe for adjudication in federal court: First, "a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Id. at 186; accord MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 348, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986) (government entity must have reached "a final and authoritative determination of the type and intensity of development legally permitted on the subject property"). Second, a takings claim may not be presented in federal court if the state courts are available to provide compensation: "If 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." Id. at 195.

 The first of these two ripeness requirements, finality, is concerned with "whether the initial decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury." Williamson County, 473 U.S. at 193. "Regardless of the type of claim, it is generally impossible to determine the extent of the infringement absent a final determination by the relevant government body." Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1404 (9th Cir. 1989), cert. denied, 494 U.S. 1016, 110 S. Ct. 1317, 108 L. Ed. 2d 493 (1990). The second requirement, exhaustion of available state compensation remedies, "derived from 'the special nature of the Just ...

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