April 6, 2011

PLF continues to fight ripeness battles in regulatory takings cases

By PLF continues to fight ripeness battles in regulatory takings cases

Author: Daniel Himebaugh

Later this week, we will file an amicus brief in support of a property owner who is now in his sixth year challenging a city ordinance that drastically downzoned his property.  (The case is Thun v. City of Bonney Lake, and we will have more information about it on our website once we file the brief).  The property owner filed a takings claim against the city in Washington state court, and is seeking compensation for a regulation that destroyed over 90% of his property value.  But after six years of wrangling over the legality of the ordinance, the city is now asserting that the property owner's takings claim should be dismissed because it is not ripe.  Instead, the city says the property owner must continue to submit development applications until the city determines what it will allow the property owner to build, with no guarantee that the recommended project will be economically feasible.

Ripeness will never be the subject of your favorite TV courtroom drama, but it is an important doctrine that can (and often does) resolve real cases.  Basically, ripeness is the idea that a court will not decide a case until the dispute is fully formed.  In the context of regulatory takings law, however, ripeness tends to focus on whether the government has made a "final decision" about how the property owner can use his property under the challenged regulations.  While property owners often see the effects of regulation right away, government typically views the process of ripening a takings claim as a war of attrition, where the government has the high ground because its decisions control when the property owner's claim is ripe, and its delays can break down the property owner's will to fight.


But thanks in large part to PLF's efforts in cases like Suitum v. Tahoe Regional Planning Agency and Palazzolo v. Rhode Island, lower courts have been forced to confront the idea that ripeness is not meant to be an excuse for keeping takings claims out of court.  The Supreme Court has described regulatory takings ripeness as a "prudential" doctrine, which is satisfied when the regulation's effect on the property owner are known to a reasonable degree of certainty.  Under this standard, courts need to carefully evaluate whether the regulation's effects on the property owner are discernable, rather than dismiss cases as a kneejerk reaction when the property owner has not submitted gratuitous development applications.

In our forthcoming brief, we argue that the court should adopt a flexible view of ripeness in regulatory takings cases.  Washington courts are notoriously demanding when it comes to ripeness because they have not reexamined the doctrine in two decades and have therefore failed to apply cases like Suitum and Palazzolo.  However, we can show that courts across the country have begun to reevaluate the fairness of an overly exacting ripeness doctrine as PLF has continued to diligently litigate this issue.

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