Once the government has inflicted a concrete injury and adopted a definitive position, how many additional procedural obstacles should a property owner be required to overcome before a takings claim is ripe for judicial review?
We filed on behalf of the Atlantic Legal Foundation and Utah landowner James Doyle, to support the petitions for certiorari in Walls v. Prince George’s County and Tedford’s Tenancy, LLC v. City of New York. Although the cases arise from different forms of government action, they present the same fundamental issue: whether a property owner who has already suffered a completed constitutional injury must continue navigating additional procedures before obtaining judicial review. In both cases, the owners alleged facts demonstrating that the government had reached a final decision, yet the lower courts dismissed their takings claims as unripe because further administrative steps remained available.
As the amicus brief explains, a takings claim accrues when the taking occurs. At that point, the constitutional injury is complete, and the government’s obligation to provide just compensation attaches. Although limited ripeness requirements may serve a legitimate purpose by preventing premature judicial intervention, those requirements cannot justify delaying review once a taking has already occurred, as alleged in Walls and Tedford’s Tenancy.
The brief urges the Supreme Court to grant certiorari and clarify that the ripeness inquiry in takings cases should focus on whether the property owner has suffered a concrete and final injury, not on whether the owner has exhausted every conceivable procedure, submitted every hypothetical proposal, or pursued every burdensome avenue before seeking judicial relief.
When Is a Takings Claim Ripe?
Ripeness exists to prevent courts from adjudicating disputes that are premature or hypothetical. In the takings context, courts must ordinarily understand how the government will apply a regulation or decision to a particular property before determining whether a constitutional injury has occurred.
Our amicus brief explains, however, that the finality requirement can become an unjust barrier when transformed into an endless procedural obstacle. Some courts have required property owners to pursue additional applications, exemptions, amendments, or similar measures even when those efforts would be futile, prohibitively costly, or incapable of altering the injury already inflicted.
The Supreme Court has characterized finality as a relatively modest requirement. Consistent with that understanding, the relevant inquiry should be whether the government has taken a sufficiently definitive position to establish a concrete injury and permit a determination of whether a taking has occurred, not whether the property owner has exhausted every conceivable avenue for relief.
Walls: Property Owner Required to Seek a Legislative Change to Ripen Taking Claim
In Walls v. Prince George’s County, a Maryland property owner Garnell Walls wanted to build his retirement home on his modest, undeveloped lot. Because connecting the property to public water and sewer lines was impossible because of the property’s location, Walls sought permission to install an interim well and septic system but was told that he would need a waiver to be allowed to do so.
The County then told Walls that he did not qualify for the waiver he sought. But they told him that he should obtain an amendment to the water and sewer category of the County’s laws and then an administrative process.
Walls alleged that pursuing the legislative route would be futile: the County Council itself repeatedly told Walls that it would not support his legislative efforts. Still, the Fourth Circuit concluded that the County had not reached a final decision because the Government could still theoretically agree to change its laws to permit Walls to install his proposed well and septic system.
Our brief argues that this approach improperly applied the finality requirement. Rather than accepting a definitive decision from the relevant government decision-maker, the Fourth Circuit’s requires a property owner to seek a legislative change to make his claim more ripe.
Tedford’s Tenancy: When the Available Procedure Offers No Meaningful Relief
The second case involves a family-owned apartment building in New York City subject to the Rent Stabilization Law. The City’s rental restrictions made the property economically infeasible to operate, and the at least $1 million in necessary repairs could not be adequately recovered through permitted rent increases.
The owner, Tedford’s Tenancy, LLC, considered pursuing hardship exemptions but concluded that it would not satisfy the requirements necessary to receive these exemptions. Tedford’s also alleged that, even if the exemptions were available, the relief they would provide would not meaningfully address the economic burden.
The New York courts nevertheless held the takings claim to be unripe because Tedford’s had not applied for and been denied a hardship exemption. The court concluded that the time and expense of navigating the process, and the possibility that it would provide inadequate relief, did not excuse the requirement to apply.
Our brief argues that this ruling elevates procedure over substance. If a property owner is allegedly ineligible for a form of relief—and any relief would not materially address the alleged injury—requiring the owner to complete the process anyway can make judicial review dependent on an exercise with little meaningful purpose.
James Doyle’s Experience Further Illustrates the Problem
The brief also presents the experience of James Doyle, a developer who owns land in Utah within protected habitat for the Mojave desert tortoise. Here, we explain how his property is in a highly restricted conservation area, enclosed by locked government tortoise fencing, and subject to repeated refusals by federal officials to allow development. Doyle’s land also serves as perpetual mitigation for multiple other projects across Washington County, further decreasing any likelihood of the government approving development.
Yet the Federal Circuit affirmed dismissal of Doyle’s takings claim because he had not submitted a complete permit application containing an individualized Habitat Conservation Plan. Preparing that plan would require Doyle to engage experts such as engineers and biologists to prepare an individual Habitat Conservation Plan, and incur substantial expenses. Yet Doyle had been repeatedly told that, because his land was already included with the most environmentally sensitive are of the County’s Habitat Conservation Plan, the Fish and Wildlife Service would not grant him a permit to develop his land. The Court of Federal Claims dismissed his claim as unripe and the Federal Circuit affirm, although even it acknowledged that it was unlikely that Doyle’s application would be denied. So, even though the Government had physically taken Doyle’s land, had enclosed in within locked tortoise fencing for which Doyle did not have a key, the Court held that he must still bear the burden and expense of preparing a pointless Habitat Conservation Plan, submit it to the Fish and Wildlife Service, and receive a formal denial of a permit to ripen his taking claim for judicial review.
Why Supreme Court Review Is Important
As these cases demonstrate, once a taking has occurred, once the government’s position is clear and the property owner has suffered a concrete injury, requiring additional procedures simply because another theoretical avenue remains can transform ripeness from a rule against premature litigation into a barrier against legitimate Fifth Amendment claims.
The Supreme Court now has the opportunity to provide a clear rule. Once a property owner has established a real, concrete injury and the government has taken a conclusive position, a taking claim should be ripe for judicial review.
Read amicus brief here.
