Real Estate & Property Law

New Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

By Robert Thomas (inversecondemnation.com)

Today, we filed an amicus brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for review under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The trial court determined the plaintiffs' regulatory takings claims were not ripe because they should have sought a legislative change to the offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court's decision is available here.

Our brief argues Williamson County only requires a "final decision" by the government applying existing land use regulations to the property, and a property owner is under no obligation to change the law before asserting her federal takings claim:

A claim that a land use regulation takes property in violation of the Fifth Amendment?s Takings Clause is ripe for judicial review under Williamson County Reg?l Planning Comm?n v. Hamilton Bank of Johnson City, 473 U.S. 172, 191 (1985), as soon as the government makes a final decision applying the regulation to the plaintiff's property, and the property owner is not required to seek a change in the law before it can come to court.

This brief first provides the context of the per se regulatory taking alleged by the Leones, which  results from an application of the Hawaii Supreme Court?s decision in GATRI v. Blane, 88 Haw. 108, 962 P.2d 367 (1998). Next, this brief addresses three issues:

First, the County?s summary refusal to process the Leones? application under existing law was all that was required to ripen their Fifth Amendment takings claim, and is a ?final decision? under Williamson County subject to judicial review. 

Second, the Leones were required to do nothing further before asserting their federal takings claims, such as subject themselves to the County?s political processes and pursue a change in the law.

Finally, in order to assert their federal takings claims, the Leones were not required to exhaust any administrative remedies that might have been available, since exhaustion of remedies plays no part in Fifth Amendment analysis.

The issues presented by this appeal are of national importance because the circuit court failed to adhere to well-established U.S. Supreme Court precedent requiring only a "final decision" by the County, and which does not mandate a property owner lobby the County to adopt new, more lenient regulations.

The brief is posted here. The background in the case is available here, and the property owners' Opening Brief is posted here.

Stay tuned, we'll post more as the case works its way through the appeal process and more becomes available.

Full post as published by inversecondemnation on September 15, 2009 (boomark / email).