Tuesday, November 15, 2011

When "Ripeness" spoils takings cases

The Pacific Legal Foundation works on property rights and "takings" issues.  This is a reprint from their web site at www.pacificlegal.org. 

by Daniel A. Himebaugh

Published in the Building Industry Association of Washington (BIAW)

July, 2011


Daniel A. Himebaugh

PLF Attorney

According to the Fifth Amendment’s Takings Clause, the government is not allowed to take your property without paying you for it.  This rule applies to regulations which go “too far” in restricting how you can use your property.  Most people are aware of this constitutional guarantee, which represents the best of our legal heritage.

The concept of “ripeness” is less familiar, however.  A takings claim will be ripe for resolution by a court only when the court knows the scope and type of uses permitted by the regulations the property owner is challenging.  This analysis often focuses on whether the government has made a “final decision” about what the property owner can build.  Sometimes the property owner’s options are spelled out in the regulations, so that the regulations’ impact on the property is plain.  But the government usually insists that it has the last word about what can be built, even if the law clearly sets out the property owner’s options.  Unfortunately, this can lead to a figurative war of attrition between the property owner and the government, where the government has the high ground because its decisions control when the owner’s claim is ripe, and its delays can sap the owner’s will to fight.

Consider the case of Thun v. City of Bonney Lake.  In 2005, the Thuns submitted a site plan application for a 575-unit condominium project, which was allowed under the zoning code at the time.  Shortly after receiving the Thuns’ application, the city rezoned their property and rejected the project.  Now, the Thuns are allowed to build only six homes and some commercial development, much less than they originally wanted to build.  The Thuns filed a takings claim, but after six years of wrangling over the legality of the rezone, the city says that the Thuns’ claim is not ripe.  Instead, the city argues that the Thuns must continue to submit expensive development applications until the city determines what it will approve, with no guarantee that the city’s recommended project will be economically feasible.

To fight for six years only to be told that the court does not believe your case is ready to be resolved is supremely frustrating.  Knowing that the government can continue to litigate indefinitely is even worse.

That is why Pacific Legal Foundation recently filed a friend-of-the-court brief in the Thuns’ case.  PLF has taken two ripeness cases to the U.S. Supreme Court in recent years.  In those cases, the Supreme Court refined the law of ripeness in recognition of the hardship it creates for property owners.  The upshot is that the Supreme Court does not require property owners to submit multiple development applications to ripen a case—so long as it is reasonably certain what the regulations will allow a property owner to build, the court should hear the case.

Washington courts, however, have not gotten the message.  In the years since PLF’s Supreme Court victories, Washington has continued to rely on obsolete notions of ripeness, which keep property owners from being compensated as the Constitution requires, and which encourage the government to continue enacting onerous restrictions.  Hopefully, the court in the Thun case will realize that reevaluating the ripeness rule will help protect private property rights, and make Washington friendlier to development in the future.

Daniel A. Himebaugh is an attorney with Pacific Legal Foundation in Bellevue, Washington.  PLF is the oldest and most experienced nonprofit legal foundation litigating for property rights, free enterprise, limited government, and a balanced approach to environmental regulation in courts across the country.

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