Once a municipal government denies a property owner's development application, does the property owner have an obligation to change the law in order to ripen her federal takings claim?
This amicus curiae brief, filed in the Intermediate Court of Appeals of Hawaii, shows why the trial court was wrong when it held a Maui property owner had an obligation to ask the Maui County Council to pass an ordinance and amend the County's designation when the existing law prevented any economic use of the property.
Here's the summary of the brief:
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 property owners, 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 owners' 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 owners 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 owners were not required to exhaust any administrative remedies that might have been available, since exhaustion of remedies plays no part in Fifth Amendment analysis.