First Circuit sets forth clear indices when a regulatory takings claim is ripe

As noted in prior posts, there has been a long history by landowners seeking to use the Fifth Amendment to obtain compensation for so-called "regulatory takings" of their property.  In Downing/Salt Pond Partners, L.P. v. Rhode Island, 2011 U.S. App. LEXIS 10358 (First Circuit: 5/23/11), the Court offers some clarity to the prerequisites for making Fifth Amendment claims.

Downing/Salt Pond Partners, L.P., frustrated by two state agencies' restrictions on its development of a coastal residential subdivision in Narragansett, Rhode Island, appealed from the District Court's dismissal of its federal takings claims under the Supreme Court's ripeness requirements for such claims, as set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).  Salt Pond Partners argued that the state had effectively reached a final decision, even though it had not formally done so, because despite repeated requests the state agencies had not made a final decision.  The First Circuit concurred with the District Court, and found that the Rhode Island's compensation procedure passed muster.

The Court noted that a takings claim requires proof of what has been taken, and a refusal to pay just compensation.  Thus, a regulatory takings claim is not "ripe" until the relevant government entity has reached a final decision regarding the application of the regulations to the property at issue. Determining whether regulatory action has resulted in a taking involves a complex inquiry into facts that simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding its application of the law to the land in question. The process may be madenly slow, but generally plaintiffs must complete ordinary administrative processes before the impact of regulatory restrictions can be determined with reasonable certainty.

A second ripeness requirement arises, the Court noted, because the Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. As a result, if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. This is sometimes referred to as a "state litigation" requirement. Further, the compensation need not be paid in advance or at the time of the taking, as long as there is a procedure in place at the time of the taking that is reasonable, certain and adequate for obtaining compensation.

Salt Pond Partners both lacked a final decision and had not availed themselves of state compensation procedures.  The Court also reviewed the Rhode Island procedure and opined that RI seems to have an adequate procedure under its inverse condemnation law.  The Court noted that only if a claimant could demonstrate that there was no means of compensation under state law could it skip the state litigation requirement of the ripeness requirement.

 Ripeness

Lexis.com subscribers can access the Lexis enhanced version of the Downing/Salt Pond Partners, L.P. v. Rhode Island, 2011 U.S. App. LEXIS 10358 (1st Cir. R.I. May 23, 2011) decision with summary, headnotes, and Shepard's.

Non subscribers can access the free unenhanced version of the Downing/Salt Pond Partners, L.P. v. Rhode Island, 2011 U.S. App. LEXIS 10358 (1st Cir. R.I. May 23, 2011) decision available from lexisONE Free Case law.

Lexis.com subscribers can access the Lexis enhanced version of the Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (U.S. 1985) decision with summary, headnotes, and Shepard's, as well as the Supreme Court Oral Arguments and the Supreme Court Briefs.

Non subscribers can access the free unenhanced version of the Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (U.S. 1985) decision available from lexisONE Free Case law.

Lexis.com subscribers can research this issue using these resources:

The Williamson County Two-Pronged Ripeness Test, 1-8 Regulatory Takings § 8-6 (Matthew Bender).

Civil Rights Actions, 4-25 United States Supreme Court Cases and Comments § 25.09.

Regulatory Takings Without Just Compensation, 13-P10 Powell on Real Property § P10.02 (Matthew Bender).

The Takings Cause of Action, Thompson on Real Property, Thomas Editions (Matthew Bender).

Overcoming Williamson County's Troubling State Procedures Rule: How the England Reservation, Issue Preclusion Exceptions, and the Inadequacy Exception Open the Federal Courthouse Door to Ripe Takings Claims, 18 J. Land Use & Envtl. Law 209.

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