Traditionally, one of the highest hurdles that land use plaintiffs needed to clear to successfully contest land-use decisions in federal court was the requirement that a municipal decision-maker render a final decision on an application by a plaintiff to develop land. This requirement derives from the Article III justiciability concerns and relates to the requirement that a case be “ripe” for judicial review.[1]
In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court held that a takings claim is not ripe for judicial review “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.”[2] This requirement is widely known as the “finality” requirement and is applied by federal courts in land use contexts generally.[3]
While it is true that the Supreme Court has overturned Hamilton Bank in the decision of Knick v. Township of Scott, its test related to the finality has had some staying power (literally).[4] Even so, the current Supreme Court appears to be engaged in a process of softening this test. In Pakdel v. City & County. of San Francisco the Court clarified that “[i]t is important to bear in mind that the finality requirement is relatively modest” and stated that “nothing more than de facto finality is necessary.”[5] In that case, the Court was evaluating whether plaintiffs needed to apply for an exemption to the application of San Francisco regulations when it was already clear how the City intended to apply the regulations to the land use in question.[6] The Court concluded that, contrary to the test outlined by the 9th Circuit below, that a land use plaintiffs need not comply with every single administrative procedure available in order for there to be a “final decision” that was ripe for judicial review.[7] However, the Court also stated that “a plaintiff ’s failure to properly pursue administrative procedures may render a claim unripe if avenues still remain for the government to clarify or change its decision.”[8]
However, while Pakdel is a certainly favorable ruling for land-use plaintiffs the fact remains that courts still frequently dismiss land-use plaintiffs in federal court for lack of a final decision.[9]
Futility Exception
Sometimes, however, a case is already ripe for judicial review despite the lack of a final decision by a municipal regulator. Many circuits recognize what is called the “futility exception” to the finality requirement. Courts in the Second Circuit, for instance, have elaborated on the exception:
“While the ripeness doctrine does not require litigants to engage in futile gestures such as ‘to jump through a series of hoops, the last of which is certain to find obstructed by a brick wall […] ’ the presence of that brick wall must be all but certain for the futility exception to apply. There must be evidence that the relevant government body has no discretion to grant an exemption, or that it ‘has dug in its heels and made clear that all such applications will be denied.’”[10]
Where finality is lacking, plaintiffs seeking to evoke this exception must show “(1) the inevitability of refusal of their application, taking into consideration factors such as the defendants’ hostility, delay and obstruction; and (2) that plaintiff has filed at least one meaningful application” before a municipal regulator.[11]
If you are considering bringing a claim against a municipality for violation of the right to use your property, be sure that you are working with attorneys who understand the nuances of ripeness and the finality requirement. The knowledgeable attorneys at Dalton & Tomich would be privileged to assist you with these issues.
[1] Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (stating that the doctrine of ripeness “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.”).
[2] 473 U.S. 172, 186 (1985).
[3] See, e.g., Murphy v. New Milford Zoning Com’n 402 F.3d 342, 349–350 (2d Cir. 2005) (discussing “prong-one” ripeness under Williamson and its application to land use cases)
[4] See Pakdel v. City & Cnty. of San Francisco, California, ––– U.S. ––––, 141 S. Ct. 2226, 2230 –2231 (2021) (discussing the dimensions of the Williamson finality requirement).
[5] Id. at 2230.
[6] Id.
[7] Id.
[8] Id. at 2231.
[9] See, e.g., Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, No. 20-CV-6158 (KMK), 2021 WL 4392489, at *7 (S.D.N.Y. Sept. 24, 2021), aff’d sub nom. Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, NY, No. 21-2822, 2022 WL 1697660 (2d Cir. May 27, 2022) (“[n]otwithstanding this clear edict, Plaintiffs have not submitted a formal proposal for the Rabbinical College, they have not applied for a permit, nor have they engaged in any other conduct that would implicate or invoke the Challenged Laws”).
[10] Country View Estates @ Ridge LLC v. Town of Brookhaven, 452 F.Supp.2d 142, 150 (E.D.N.Y.2006) quoting Ecogen, LLC v. Town of Italy, 438 F.Supp.2d 149, 161 (W.D.N.Y.2006).
[11] Quick Cash of Westchester Ave. LLC v. Village of Port Chester, No. 11-CV-5608, 2013 WL 135216, at *8 (S.D.N.Y. 2013); see also R. Jeffrey Lyman, Finality Ripeness in Federal Land Use Cases from Hamilton Bank to Lucas, 9 J. Land Use & Envtl. L. 101, 124 (1993) (“[t]hus, the futility exception applies only when a court has before it strong evidence that the developer will not, and cannot, succeed. To be sure, the courts have inferred futility in a wide variety of circumstances. But one point has been critical: futility has been found only after the developer has made at least one application.”).
