The Ripeness Doctrine
The doctrine of ripeness was fully discussed by the Supreme Court in MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 348-353 106 S. Ct. 2561, 2565-2568, 91 L. Ed. 2d 285 (MacDonald):
"The regulatory takings claim advanced by appellant has two components. First, appellant must establish that the regulation has in substance 'taken' his property--that is, that the regulation 'goes too far.' Second, appellant must demonstrate that any proffered compensation is not 'just.'
Importantly, courts have recognized the ripeness requirement cannot be used to require that property owners resort to "piecemeal litigation or otherwise unfair procedures." (MacDonald, supra, 477 U.S. at p. 350, fn. 7 106 S. Ct. at p. 2567; Del Monte Dunes v. City of Monterey (9th Cir. 1990) 920 F.2d 1496, 1501 (Del Monte I); see also Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 698-699 119 S. Ct. 1624, 1633, 143 L. Ed. 2d 882 (Del Monte II).)
The Ninth Circuit "recognizes a limited futility exception to the requirement that a landowner obtain a final decision regarding the application of land use regulations to the affected property.
Under this exception, the resubmission of a development plan or the application for a variance from prohibitive regulations may be excused if those actions would be idle or futile.
The landowner bears the burden of establishing, by more than mere allegations, the futility of pursuing any of the steps needed to obtain a final decision.
Moreover, before claiming the exception, the landowner must submit at least one development proposal and one application for a variance if meaningful application and submission can be made." ( Del Monte I, supra, 920 F.2d at p. 1501.)
In Del Monte I, the property owners and their predecessors began seeking development from the defendant city in 1981.
As summarized by the court, "The city council finally specified in 1984 the development it would permit on the property.
The appellants spent over 18 months preparing a plan to meet the conditions specified.
The plan was approved in the architectural review, was recommended by the City's professional planning staff, and then the same three members of the city council that had approved the development with certain conditions abruptly changed course and disapproved the plan even though the conditions specified had been substantially met.
The City now appears to expect appellants to submit a fresh application rather than continue refining the plan into which appellants have expended significant resources.
This disapproval of the plan came at a time when a sewer moratorium from another agency would prevent development based on new plans, thus, further delaying or restricting development.
"Requiring appellants to persist with this protracted application process to meet the final decision requirement would implicate the concerns about disjointed, repetitive, and unfair procedures expressed in MacDonald, 477 U.S. at 350 n. 7, 106 S. Ct. at 2567 n. 7, and American Savings and Loan Ass'n v. County of Marin (1981) 653 F.2d 364, 371.
"It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property.
A court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes. As Justice Holmes emphasized throughout his opinion for the Court in Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 416 43 S. Ct. 158, 160, 67 L. Ed. 322, 'this is a question of degree--and therefore cannot be disposed of by general propositions.'
To this day we have no 'set formula to determine where regulation ends and taking begins.'
Instead, we rely 'as much on the exercise of judgment as on the application of logic.'
Our cases have accordingly 'examined the "taking" question by engaging in essentially ad hoc, factual inquiries that have identified several factors--such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action--that have particular significance.'
Until a property owner has 'obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,' 'it is impossible to tell whether the land retains any reasonable beneficial use or whether existing expectation interests have been destroyed.'
As we explained last Term: 'The difficult problem is how to define 'too far,' that is, how to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession. . . . Resolution of that question depends, in significant part, upon an analysis of the effect the Commission's application of the zoning ordinance and subdivision regulations had on the value of respondent's property and investment-backed profit expectation. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent's property.'
"For similar reasons, a court cannot determine whether a municipality has failed to provide 'just compensation' until it knows what, if any, compensation the responsible administrative body intends to provide.
The local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with the one hand they may give back with the other.
In Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104 98 S. Ct. 2646, 57 L. Ed. 2d 631, for example, we recognized that the Landmarks Preservation Commission, the administrative body primarily responsible for administering New York City's Landmarks Preservation Law, had authority in appropriate circumstances to authorize alterations, remit taxes, and transfer development rights to ensure the landmark owner a reasonable return on its property.
Because the railroad had 'not sought approval for the construction of a smaller structure' than its proposed 50-plus story office building, and because its development rights in the airspace above its Grand Central Station Terminal were transferable 'to at least eight parcels in the vicinity of the Terminal, one or two of which had been found suitable for the construction of a new office building,' we concluded that 'the application of New York City's Landmarks Law had not effected a "taking" of the railroad's property.'
Whether the inquiry asks if a regulation has 'gone too far,' or whether it seeks to determine if proffered compensation is 'just,' no answer is possible until a court knows what use, if any, may be made of the affected property.
"Our cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it.
Thus, in Agins v. Tiburon, 447 U.S. 255 (1980) 100 S. Ct. 2138, 65 L. Ed. 2d 106, we held that zoning ordinances which authorized the development of between one and five single-family residences on appellants' 5-acre tract did not effect a taking of their property on their face, and, because appellants had not made application for any improvements to their property, the constitutionality of any particular application of the ordinances was not properly before us.
Similarly, in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 101 S. Ct. 1287, 67 L. Ed. 2d 551 (1981), we dismissed the appeal because it did not appear that the city's rezoning and adoption of an open space plan had deprived the utility of all beneficial use of its property.
Because the California Court of Appeal had 'not decided whether any taking in fact had occurred, . . . further proceedings were necessary to resolve the federal question whether there has been a taking at all.'
As a consequence, the judgment was not final for purposes of our jurisdiction under 28 U. S. C. 1257.
Most recently, in Williamson Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172 105 S. Ct. 3108, 87 L. Ed. 2d 126, we held that the developer's failure either to seek variances that would have allowed it to develop the property in accordance with its proposed plat, or to avail itself of an available and facially adequate state procedure by which it might obtain 'just compensation,' meant that its regulatory taking claim was premature.
"Here, in comparison to the situations of the property owners in the three preceding cases, appellant has submitted one subdivision proposal and has received the Board's response thereto. Nevertheless, appellant still has yet to receive the Board's 'final, definitive position regarding how it will apply the regulations at issue to the particular land in question.'
In Agins, San Diego Gas & Electric, and Williamson Planning Comm'n, we declined to reach the question whether the Constitution requires a monetary remedy to redress some regulatory takings because the records in those cases left us uncertain whether the property at issue had in fact been taken.
Likewise, in this case, the holdings of both courts below leave open the possibility that some development will be permitted, and thus again leave us in doubt regarding the antecedent question whether appellant's property has been taken."