Real Estate & Property Law

2008 Land Use In Review: Ripeness Games In Regulatory Takings

By Robert Thomas (inversecondemnation.com)

In 2008, we continued to castigate the Williamson County ripeness rules, culminating in December when we filed an amicus brief urging the Supreme Court to take a harder look at how the "final determination" aspect of the rule is being applied. The rule has two parts.

First, the state-litigation rule requires a regulatory takings plaintiff to pursue -- and lose -- their claim in state court before asserting their federal constitutional claims in federal court. In San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005) four Justices agreed Williamson County produces absurd results and denies federal court review of federal constitutional rights, and argued that in an "appropriate case," the Court should reconsider Williamson County. At least two cert petitions were filed suggesting they were the appropriate case. See Braun v. Ann Arbor Charter Township, No. 08-250 (cert. denied Dec. 1, 2008), and Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008).

The second part of Williamson County is the "final determination" rule which requires that the regulator have reached a final decision of what uses would be allowed on the property. A pending cert petition (the one in which we filed the amicus brief) argues that when a property owner submits a detailed development proposal, consults with the government for years, proposes multiple alternatives for development, and the government responds that denial of the application is the "only appropriate course," then its denials are final enough for a court to evaluate, and final enough to allow the landowner to get past "Go." See Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008)  (seeking review of 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008).

For an example of the strange procedures Williamson County has spawned, see West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

Full post as published by inversecondemnation on January 14, 2009 (boomark / email).