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The certiorari petitions in Walls v. Prince George’s County, Maryland (26-107) & Tedford’s Tenancy LLC v. City of New York (26-110) present the question of whether the ripeness doctrine can be applied in a way that swallows the Just Compensation protection of the Fifth Amendment’s Taking Clause.
Consistent with its mission of advocating for protection of private property rights from uncompensated governmental takings, ALF has filed an amicus brief urging the Supreme Court to grant both petitions. James Doyle, a Utah developer with a direct interest in application of the ripeness doctrine to taking claims, joined the brief as co-amicus.
The amicus brief was authored for ALF by takings law specialists Nancie G. Marzulla and Roger J. Marzulla of Marzulla Law, LLC.
Background
The petitioner in Walls wanted to install an interim well and septic system to service a residential building too far from municipal water and sewer systems to connect. When he discovered that the proposed installation was prohibited by the county’s water and sewer plan, the county director of permitting advised him that he did not qualify for a waiver but that he could seek a legislative and then administrative amendment to the county plan. The petitioner did not seek a legislative amendment because the county council advised him that such a request would be futile. Instead, he filed a Fifth Amendment regulatory taking claim. The Fourth Circuit affirmed the district court’s dismissal of that claim on the ground that it was not ripe because the petitioner had not sought legislative and administrative amendments.
The family-based petitioner in Tedford’s Tenancy owned a New York City apartment subject to a municipal rent-control law that made operation of the apartment, including necessary repairs, economically unfeasible. The family members did not qualify for a hardship exemption, which even if granted, would not ameliorate the economic hardship imposed by the rent-control law. Instead, they filed a regulatory taking claim, which New York state courts dismissed as unripe because they had not exhausted the remedy of applying for the hardship exemption even though they were ineligible.
ALF's Amicus Brief
The amicus brief argues that once a taking has occurred, satisfying the conditions for ripeness is all that should be required to have standing for pursuing a taking claim. Once a government decision-maker has made a final decision concerning a proposed property use, the property owner should not be required to make its taking claim “more ripe” by exhausting costly, burdensome, and often futile procedural hurdles.
The brief explains that “[b]y treating satisfaction of ripeness as merely prudential (i.e., discretionary) for taking purposes and emphasizing the absence of a formal denial despite the government’s definitive, final position on the proposed use, lower courts too often force property owners to bear the burdens of government regulation without any meaningful opportunity to obtain a constitutional remedy.”
The lower courts’ decisions in Walls and Tedford’s Tenancy turn the ripeness requirement into a never-ending quest. Misuse of the prudential ripeness doctrine thus enables courts to decline adjudication of otherwise justiciable constitutional claims, including for just compensation.
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