Court Dismisses Regulatory Taking Claim -- Ignores Ripeness Requirement

On March 10, 2008, 16th Circuit Court Judge Garcia dismissed Geneva Sutton's regulatory taking case against Monroe County, on a motion to dismiss, accepting the County's argument that the availability of a "super-variance" (the County's "Beneficial Use Determination" process) is irrelevant to the U.S. Supreme Court's ripeness doctrine. First espoused in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), Williamson County "ripeness" was recently re-visited in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), where the Supreme Court held, at 533 U.S. 620-21:

"… a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law ..."

No final judgment of dismissal has been entered yet, so the case is not yet "ripe" for appeal. In keeping with the spirit of the Court's order (denying our Motion for Reconsideration), perhaps we should file our appeal as quickly as possible -- without waiting for finality. Frankly, if we can't reverse this decision in our sleep, Andy and I should retire and go play shuffleboard.