Can government evade property rights protections by stalling?

October 09, 2015 | By CHRISTINA MARTIN

Yesterday, PLF filed a friend-of-the-court brief in the Second District Court of Appeal in GolfRock, LLC v. Lee County.  This case demonstrates what happens when courts fail to recognize that a  property rights claim is “ripe” (i.e., adequately developed for the court to determine the merits of the claim).

The owners of GolfRock, LLC initially sought a permit to mine and later develop a piece of land in Lee County, Florida in 2005. Over the next couple of years, the County required five subsequent supplements to the permit application, before pausing consideration with a temporary moratorium on mining applications. Then the County changed the rules, amending the local comprehensive plan to preclude mining on GolfRock’s land. GolfRock protested that the old rules should apply to its application, but the County disagreed. Eight years after GolfRock first applied, the County finally demanded that GolfRock withdraw its permit application. Worse, the County argued that GolfRock could not challenge the new mining regulations in court, because the County never made a final decision on GolfRock’s permit application. As strange as this might sound, the trial court agreed.

The trial court’s confusion stems from a Supreme Court case, Williamson County Reg’l Planning Com’n v. Hamilton Bank of Johnson City, which has caused numerous problems for landowners.There, the Court held that a regulatory takings claim is not ripe for a lawsuit until government reaches “a final decision regarding the application of the regulations to the property at issue.” Because Williamson County’s planning commission had discretion to permit the development, the Court held it was not ripe for review until the landowner applied for a variance (an exception to the zoning rule). But in other cases, the Court has clarified that a property owner need not apply for development when the government lacks discretion to issue the permit. Moreover, a landowner need not apply when it is clear that the application would be futile.

PLF’s brief clarifies that GolfRock’s claim is ripe under a proper understanding of the ripeness requirements, and explains that courts undermine property rights when they force landowners to participate in a doomed application process. Unnecessarily high ripeness requirements invite government agencies to create long, costly application processes. Even routine land use applications are expensive and require engineering and architectural submissions. In fact, preparing a complete development plan can sometimes cost more than the value of the property itself. If that weren’t enough, it can also take years—sometimes decades— to secure a final decision on some permit applications.

The high costs of development, combined with the difficulty of getting a final decision, can turn the application process into high-stakes gambling. As a result, many property owners—especially the poor and middle class—will never have the opportunity to defend their constitutional right to just compensation when the government regulates away the use of their land.  PLF has helped many property owners (pro bono) assert their property rights and get past ripeness hurdles in court (including landmark Supreme Court wins).  But government knows we cannot help everyone.  Let’s hope this court vindicates property rights and discourages government stalling by holding this regulatory taking claim ripe.