September 22, 2017

PLF asks Supreme Court to secure property owners’ path to takings claim

By Christina M. Martin Attorney

This week, PLF filed this amicus brief in Beach Group Investments, Inc. v. Florida Department of Environmental Protection.  This case raises yet another example of how the lower courts are struggling to interpret the Supreme Court’s “final decision ripeness” rule in takings claims. The takings ripeness doctrine requires a final administrative decision to ensure that property owners come to court with a cleanly postured property rights claim. Usually this means that property owners must actually apply for at least one permit to use their property before they can go to court and allege that the government unconstitutionally deprived them of the ability to make economic use of their property, or otherwise went too far in devaluing their property.  But the ripeness requirement does not require applications for their own sake or when less ambitious plans would not be economically viable. Yet that is exactly what a Florida appellate court required in Beach Group Investments.

As we explain in our amicus brief, the lower courts have struggled with the Supreme Court’s final decision ripeness doctrine. As a result, state and local governments often have been able to take the use of private property without ever paying the owner for it.  This violates the protections of the Fifth Amendment.

When courts create unnecessary hurdles to ripen a case, they force landowners through long, expensive, and unnecessary administrative processes and give incentives to government officials to complicate and stall the process.  For example, property owners in another case had to wait 9 years before a local government made a “final decision” on a permit application. In other words, the owners had to wait 9 years before they could raise their taking claim in court.  PLF is representing those property owners now, asking the Supreme Court to make the government pay them for turning their park into a “bird rookery”—an unusable conservation area for birds.  This ripeness issue affects property owners across the country.  Hopefully the Supreme Court will clarify and fix the doctrine in the near future, so that when government unconstitutionally takes the use of property away without paying for it, property owners can vindicate their rights in court.

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