What do grapes and federal lawsuits have in common? Both must be ripe.

• Author: Maker, William, Jr.

More and more land use litigation is being brought in federal court as landowners, discouraged by their inability to get state courts to grant relief from what they perceive to be biased land use boards, attempt to focus the debate on violations of civil and constitutional rights, rather than state law. (1) This growing trend raises the concern that an increasing body of land use law is now coming from judges who are unfamiliar with it, and sometimes render rulings that contradict state law.

1. THE DANGER OF FEDERAL COURTS BECOMING ARBITERS OF NEW YORK LAND USE LAW

   The Second Circuit starts with the premise

   that federal courts should not become zoning boards of appeal to review nonconstitutional land use determinations by the circuit's many local legislative and administrative agencies. Federal judges lack the knowledge of and sensitivity to local conditions necessary to a proper balancing of the complex factors that enter into local zoning decisions. Even were we blessed with the requisite knowledge and sensitivity, due regard for the constitutional role of the federal courts in our dual judicial system would permit us to exercise jurisdiction in zoning matters only when local zoning decisions infringe national interests protected by statute or the constitution. However, when a landowner's constitutional rights are infringed by local zoning actions, our duty to protect the constitutional interest is clear. (2) Since the New York Court of Appeals has instructed the state's judiciary to "giv[e] due deference to the broad discretion of the Board [of Appeals]," (3) the lower state courts have become less inclined to upset decisions by local land use boards. (4) This jurisprudential directive has drawn disenchanted developers to the federal courts. Because, as Judge Pratt noted in the passage quoted above, "[f]ederal judges lack the knowledge of and sensitivity to local conditions necessary to a proper balancing of the complex factors that enter into local zoning decisions," (5) the result of this movement can be disastrous.

   O'Mara v. Town of Wappinger (6) is an example. The issue was whether notes restricting development that appeared on a subdivision plat provided constructive notice of the restriction to bona fide purchasers for value. (7) The District Court decided that a subdivision plat, though filed with the County Clerk, was not "recorded" within the meaning of New York's Recording Act (N.Y. Real Property Law section 291). Hence, the plat did not constitute notice to subsequent owners who took title free of the restrictions on that plat. (8)

   This holding was at odds with what New York land use practitioners knew the law to be and could have led to unimaginable confusion, both in the land use and the title insurance worlds. Fortunately, through the certification procedure, (9) the Second Circuit Court of Appeals certified the question to New York's Court of Appeals, (10) which assured its federal cousin that notes on filed plats are as much a part of a property's chain of title as matters contained in recorded deeds, easements, covenants, and the like. (11) Armed with that answer, the Second Circuit undid the mischief the lower court's holding may have had. (12)

   It is not only federal judges who find themselves in new fields. It has been quite some time since many municipal attorneys have reviewed the doctrines that require a federal jurist to refrain even when jurisdiction otherwise appears to exist. One such doctrine is ripeness.

2. RIPENESS IN LAND USE CASES

   Ripeness is "a constitutional prerequisite to exercise of jurisdiction by federal courts." (13) For a case to be "ripe," there must be a "real, substantial controversy between parties" which involves a dispute that is "definite and concrete, not hypothetical or abstract." (14) The doctrine calls upon federal courts to decide at the outset "whether [they] would benefit from deferring initial review until the claims [they] are called on to consider have arisen in a more concrete and final form." (15) The obvious purpose behind the ripeness doctrine is to prevent adjudication of issues that do not exist, can be addressed by another body, or may never arise. (16) Ripeness keeps the federal judiciary from getting caught up in academic exercises. (17)

   In land use matters, the doctrine has evolved from Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, (18) a regulatory takings case. (19) The landowner argued that by denying its application to subdivide, the government had taken its property without giving just compensation in violation of the Fifth Amendment. (20) The United States Supreme Court held that the case was not ripe for federal court review because the landowner had failed to meet both prongs of a two-pronged test for ripeness. (21)

   1. Prong-One Ripeness

      Though its proposed subdivision had been denied, the landowner had not attempted to obtain variances from the Planning Commission's decision. (22) If granted, those variances may have restored economic vitality to the land. (23) Accordingly, "the Commission's denial... [did] not conclusively determine whether respondent will be denied all reasonable beneficial use of its property, and therefore is not a final, reviewable decision." (24) Thus, the first prong of the ripeness test requires "the government entity charged with implementing the regulations [to have] reached a final decision regarding the application of the regulations to the property at issue." (25) This branch of the test has come to be known as the final decision requirement, (26) or prong-one ripeness. (27)

   2. Prong-Two Ripeness

      An additional reason why Williamson was not ripe was that the landowner had not sought "compensation through the procedures the State has provided for doing so." (28) After all, "[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." (29) Ergo, "a property owner has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully attempted to obtain just compensation through procedures provided by the State." (30) Thus, the second prong of the ripeness test requires a party to seek compensation for an alleged taking through state law procedures before coming to the federal judiciary. (31) The second component of the test has been called the state compensation requirement, (32) or prong-two ripeness. (33)

      Of course, lawsuits claiming regulatory takings are only one type of land use litigation. Landowners often argue that land use boards have violated their substantive or procedural due process rights, or that these boards have denied them equal protection of the laws. (34) With one exception, the Second Circuit applies both prongs of the Williamson ripeness test to such claims. (35) The exception is when the substantive due process claim is based upon allegations of arbitrary and capricious governmental conduct. (36) There only the final decision requirement (or prong-one ripeness) needs to be satisfied. (37)

   3. What Is a "Final Decision"?

      "A final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations." (38) Reminiscent of the one-bite rule in dog bite cases, the courts have maintained that finality requires "at least one meaningful application for development.., be made in order to invoke the futility exception and consider a claim ripe for adjudication." (39)

      In regulatory taking cases, however, more than one application is usually necessary. The argument in such cases is that the government, through the application of its laws, has stripped the land of its value. Cases such as MacDonald, Sommer & Frates v. County of Yolo, (40) as interpreted by Southview Associates, Ltd. v. Bongartz, (41) hold that more than one application may be required before a takings case is ripe because the federal courts should not act until it is obvious that the regulatory agency will not approve any uses from which the landowner can derive a financial benefit. (42)

   4. The Futility Exception

      As with so many legal doctrines, prong-one ripeness has its own exception.

      A property owner ... will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied. (43) The exception was developed to "protect property owners from being required to submit multiple applications when the manner in which the first application was rejected makes it clear that no project will be approved." (44)

      Unfortunately, "[t]he Second Circuit has not yet determined 'what the precise contours of the futility exception are." (45) Other circuits have, however. To establish futility, the plaintiff must demonstrate that "the prospect of refusal must be certain (or nearly so)." (46) The lower federal courts of New York appear to agree, (47) and two points are beyond doubt. First, "[f]utility does not exist merely because of hostility to the developer's plans." (48) Second, delays in processing an application, even inordinately long ones, do not, by themselves, establish futility. (49)

      At least one federal district court in New York has found futility. In Catcove Corp. v. Heaney, (50) an application for amendments to a zoning ordinance had been "pending--in one form or another--for close to nine years." (51) While that alone might not have been grounds for invoking the futility exception, the court found the case to be ripe because the plaintiffs sufficiently pled that the defendants had "set an 'Ever Changing Finishing Line,' whereby they constantly imposed new obstacles whenever Plaintiffs satisfied the Defendants' previous purported requirements for approval." (52)

      These...