10.8. RIPENESS.

• Jurisdiction: Arizona

10.8. Ripeness.

10.8.1. Justiciability.

In order to serve as a basis for declaratory relief, a controversy involving a zoning ordinance must be justiciable; that is, there must be specific adverse claims, based upon present rather than future or speculative facts, which are ripe for judicial determination.

Western Oil & Gas Ass'n v. Sonoma County, 905 F.2d 1287 (9th Cir. 1990), cert. denied, 498 U.S. 1067 (1991) (an action is unripe when the issues are not sufficiently concrete for judicial resolution)

Citizens for Orderly Dev. & Env't v. City of Phoenix, 112 Ariz. 258, 540 P.2d 1239 (1975) (proper time for judicial review of a zoning ordinance is after enactment of offending ordinance)

Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297 (2004) (a procedural challenge to the adoption of a rezoning ordinance must be filed before a referendum election on the ordinance is held)

Thomas v. City of Phoenix, 171 Ariz. 69, 828 P.2d 1210 (App. 1991) (there must be a justiciable issue between the parties before a declaratory judgment will be granted; courts will not hear cases that seek declaratory judgments that are advisory or answer moot or abstract questions; declaratory relief should be based on an existing state of facts, not facts that may or may not arise in the future; an exception is that a court may decide a moot question or abstract proposition if the issue is one of great "public importance" or one that is "capable of repetition yet evading review")

Manning v. Reilly, 2 Ariz.App. 310, 408 P.2d 414 (1965)

10.8.2. Regulatory taking.

10.8.2.1. Final decision requirement.

A claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.

Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001) (while a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened)

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 117 S. Ct. 1659, 137 L. Ed. 2d 980 (1997) (finality requirement is satisfied where agency finally determined that land lies entirely within a zone in which development is not permitted; landowner is not required to take steps to obtain a final decision about the use that will be permitted on a particular parcel)

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986) (denial of one development plan cannot be equated with a refusal to permit any development; refusal to permit the intensive development desired by the landowner did not preclude less intensive, but still valuable, development)

Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985) (property owner had not obtained final decision as to the proposed development of its property because it had not applied for variances)

Pakdel v. City and County of San Francisco, 952 F.3d 1157 (9^th Cir. 2020) (property owner's taking claim was unripe because it failed to request a variance or exemption from the land use regulation at the proper juncture)

Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir. 1996), cert. denied, 523 U.S. 1059 (1998) ("as applied" taking challenge to land use regulation is ripe when property owner has received a final decision regarding how the regulatory body will allow the property owner to develop property; property owner must submit one "meaningful application" for a development project and a variance)

Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995) (compensation element of ripeness doctrine did not require that property owners present their federal takings claim in state court before seeking relief in federal court)

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th Cir.), cert. denied, 513 U.S. 870 (1994) (constitutional challenge to land use regulation is ripe when property owner has received planning commission's final, definitive position regarding how it will apply regulations at issue to property; before decision is final property owner must have submitted one formal development plan and sought variance from regulations barring development). But see Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir. 1996), cert. denied, 523 U.S. 1059 (1998) ("final decision" ripeness requirement does not apply to facial taking claims based either on lack of legitimate state interest or no economically viable use)

Christensen v. Yolo County, 995 F.2d 161 (9th Cir. 1993) ("as applied" takings challenge is not ripe if claimant does not first seek final decision regarding application of regulation to property at issue)

Jama Const. v. City of Los Angeles, 938 F.2d 1045 (9th Cir. 1991) (lack of ripeness deprives a court of subject matter jurisdiction)

Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991)

Del Monte Dunes v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990)

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 911 F.2d 1331 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991) (case held not ripe due to failure of plaintiff to seek amendment from regional agency of overall development plan pursuant to procedure established in plan)

St. Clair v. City of Chico, 880 F.2d 199 (9th Cir.), cert. denied, 493 U.S. 993 (1989)

Hoehne v. County of San Benito, 870 F.2d 529 (9th Cir. 1989)

Lai v. City & County of Honolulu, 841 F.2d 301 (9th Cir.), cert. denied, 488 U.S. 994 (1988)

Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375 (9th Cir.), cert. denied, 488 U.S. 851 (1988)

Kinzli v. City...