The ripeness doctrine in Florida land use law.

• Author: Maraist, Patrick W.

On October 1, 1995, the Bert J. Harris, Jr., Private Property Rights Protection Act (the Harris Act) became law in the State of Florida.(1) The act creates an avenue of relief for a private landowner whose property has been "inordinately burdened" by a specific action of a governmental entity.(2) The legislature determined that the law of takings has not fully protected landowners from burdensome governmental actions.(3) The Harris Act is designed to address many of the shortcomings of takings jurisprudence, particularly in the area of ripeness.(4)

This article provides a synopsis of the general principles of the ripeness doctrine as applied in the land use context by the U.S. Supreme Court and the Florida court system. The pitfalls of the ripeness doctrine are highlighted as a precursor to the rise of the property rights movement in Florida. The article culminates in an analysis of the Private Property Rights Protection Act as it pertains to ripeness requirements.

General Principles of Ripeness

Ripeness is a simple term in principle,(5) yet perplexing in application.(6) It refers to threshold conditions that must exist before a dispute is sufficiently mature to enable a court to decide it on the merits.(7) If a court determines that the conditions do not exist, the court will dismiss the case on the grounds that the case is not ripe. The ripeness doctrine can be supported under both constitutional and prudential principles. The "case or controversy" clause in Art. III of the U.S. Constitution requires federal courts to dismiss hypothetical cases that lack any clear and sufficient injury. The prudential component of the doctrine relates to the need to have a record supported by concrete facts and decisions. Viewed as a prudential limit, a court has discretion in applying the ripeness doctrine.(8) By contrast, a court that is inclined to apply the ripeness doctrine pursuant to Art. III will treat the ripeness question as a subject matter jurisdiction issue(9) and may dismiss the case after tremendous time and cost have been expended.

Although failure to meet ripeness has harsh effects, the standard ripeness test affords the courts an opportunity to address equitable considerations. This ripeness test, exemplified by the U.S. Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967), requires a court to evaluate "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." The Court stated that "where a regulation requires an immediate and significant change . . . with serious penalties attached to noncompliance, access to the courts . . . must be permitted . . . ."(10)

The Origins of Ripeness in Land Use

The U.S. Supreme Court's application of ripeness principles to land use cases stems from Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). In Penn Central, the owners of Grand Central Station, a historic landmark, were denied a permit to construct a 55-story office building on the roof of the station. The owners claimed that application of the preservation law to their property was a taking. The Court noted that there were other uses of the property available. An application for a smaller structure might have been approved. The owners did not reapply after the initial permit was denied. The Court held that it could not assume that the commission would deny a less intensive application. Therefore, no compensable taking was established.

The Supreme Court continued to lay the foundations of the land use ripeness doctrine in Agins v. City of Tiburon, 447 U.S. 255 (1980). In Agins, the landowners filed a takings claim and argued that recently adopted zoning ordinances had "completely destroyed the value of [the] property."(11) The Court declined to rule on the challenge because the landowners did not submit a plan for development, as the ordinances required. There was no concrete controversy regarding the application of the specific zoning provisions where the ordinance was not actually applied to the owner's property.

Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), incorporated the final decision requirement into a two-pronged ripeness test. After a developer received preliminary plat approval, the commission rejected the revised plan and two other preliminary plats under a changed zoning ordinance. The landowner filed suit in federal court and would have been awarded $350,000 for a temporary taking, but the trial court granted judgment notwithstanding the verdict in favor of the commission. The Sixth Circuit reversed, finding that the evidence supported a temporary taking.

The Supreme Court declined to answer whether governments must pay money damages to a landowner whose property has been taken temporarily by the application of government regulations. According to the Court, "[b]ecause respondent ha[d] not yet obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, nor utilized the procedures [the state] provide[d] for just compensation, respondent's claim was not ripe."(12) This statement is the two-pronged test that has subsequently been applied in nearly every land use case to determine if the case is ripe.

Although the landowner satisfied Agins by submitting a plan for the development of the property, the Court ruled that the landowner should have requested a variance. According to the Court, "until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question," it is "impossible to tell whether the land retained any reasonable beneficial use or whether respondent's expectation interests had been destroyed."(13) Since the respondent did not seek a variance, the case was not ripe.

The Court distinguished the ripeness finality requirement from the exhaustion of administrative remedies frequently required under an administrative challenge. According to the Court:

While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.(14)

In sum, exhaustion of administrative procedures would not be required if a landowner has obtained a final and definitive decision from the agency enforcing the ordinance or regulation.

The second prong is the requirement that the landowner seek compensation through state procedures, if the state has provided such procedures.(15) The Fifth Amendment proscribes only the taking of property without just compensation. Analyzing the claim, the Court noted that Tennessee provided an inverse condemnation process for seeking compensation. The Court reasoned that until a landowner seeks and is denied compensation, the state's action is not complete. The landowner respondent failed to pursue the state procedures. Its claim was therefore not ripe.

In MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986), the Court enunciated in more detail what the Williamson County ripeness test requires. In...