II. Ripeness

LibraryLitigating Religious Land Use Cases (ABA) (2016 Ed.)

II. Ripeness

Ripeness shares a similar conceptual concern with standing in that courts should decline to hear the merits of claims for cases that do not deserve judicial resolution. However, it differs through its specialized focus on preventing premature adjudication. While standing gauges whether a litigant may file suit, ripeness assesses when a suit is appropriate. Ripeness is an especially important issue in the realm of religious land use litigation as it can be raised at any point in a case.39 Consequently, even where a defendant fails to raise the issue in its initial response, the argument is not waived. This is true in light of the fact that a ripeness analysis is less stringent in the context of First Amendment litigation where there is a fear of irretrievable loss.40

Insomnia, Inc. v. City of Memphis41 reviewed the parameters of ripeness considerations in relation to First Amendment challenges to local land use regulation. The court noted that ripeness is a matter of justiciability, implicating "prudential reasons for refusing to exercise jurisdiction."42 The doctrine is designed to prevent the courts from, through premature adjudication, addressing the merits of a claim that does not yet present a live case or controversy or otherwise prematurely "entangling themselves in abstract disagreements."43 Ripeness evaluations involve three factors: "(1) the likelihood that the harm alleged by the plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties' respective claims; and (3) the hardship to the parties if judicial relief is denied at this stage in the proceedings."44

Normally a claim would be unripe under these factors if a religious organization does not, before filing suit, do so much as file an application in accordance with relevant land use regulations. There are, however, exceptions to this rule. Roman Catholic Bishop of Springfield v. City of Springfield,45 discussed earlier in the equal terms context, bore important ripeness implications on this point. Again, the case involved a church filing suit after a city ordinance designated its land as a single-parcel historic district, which required the church to seek permission from the city before making future land alterations. Of importance, the church neither submitted an application to make an alteration nor had any specific plans to make one, and it was unclear what, if anything, the regulation prevented the church from doing.46 Since the church did not submit an application and could not point to specific plans that the ordinance would disrupt, it presented a mere possibility of future injury, which is usually a textbook case of an unripe claim.47

But this was not the church's only argument. Interestingly, the church also claimed that the "mere existence" of the ordinance created a ripe controversy, and the court was persuaded because having to comply with the regulation created a form of delay, uncertainty, and expense sufficient to show injury.48 Though the court recognized it was "self-evidently plausible" that there was injury,49 it later concluded that the regulatory burden was not substantial because it merely involved following general administrative proceedings and because the alleged financial burden was undocumented and only partially traceable to the ordinance.50

Thus, an injury does not have to amount to a substantial burden to be ripe, and the possibility of future injury can create a ripe controversy when that possibility creates present hardship. This principle extends to land use regulations that were passed out of discriminatory animus even if not yet applied, according to the 11th Circuit in Temple B'Nai Zion, Inc. v. City of Sunny Isles Beach.51 In another landmarking case, this one "fortifie[d]" by the reasoning in Roman Catholic Bishop, Temple B'Nai Zion was a Jewish religious organization operating in the City of Sunny Isles Beach, Florida. Operating as a Judaic temple for a number of years, it made the switch to Orthodox Judaism not long after 2004. This caused a stir among many members of the congregation, some of whom included powerful members within the city's government, including the mayor and city commissioners.52

In 2006 B'Nai Zion planned renovations for the building and in 2009 applied but was rejected for a permit to begin reconstruction. An application was denied again in 2010.53 Meanwhile, the city began examining buildings to designate for the first time as historic landmarks. After a hearing, the preservation board voted to designate parts of the building as historic sites, not to be modified without approval. On appeal, the city commission decided to make the building a historic site.54

B'Nai Zion consequently filed suit but the district court dismissed the complaint after determining that the question was not ripe, understanding the organization's concern to be an inability to expand when it had not yet requested a waiver or variance to do so.55 But the 11th Circuit held that the district court had misread B'Nai Zion's complaint. To the 11th Circuit, B'Nai Zion was challenging the enactment of the historic landmark designation, allegedly done solely for discriminatory purposes. B'Nai Zion did not indicate concern with the application of the regulation and thus the "issue became as ripe as it will ever be."56 The 11th Circuit declined to apply a strict ripeness test because B'Nai Zion alleged that the city was motivated by discriminatory animus, which makes an injury complete. By declining to address the merits, a court would only be perpetuating the alleged injury.57

Similarly, facial challenges to regulations that would effectively block the actualization of desired land use are generally held to be ripe without a plaintiff ever even filing a permit. In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona,58 a group of people affiliated with a proposed rabbinical college had an interest in constructing a yeshiva (a training and educational facility for rabbis) and large housing facility in the Village of Pomona, New York, on a parcel that it claimed to be the only available and...

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