Tellin’ It the Way It Is

As anyone who has read our stuff on the subject of ripeness in inverse condemnation knows, we take a dim view of the intellectual and moral hash that judges have made of pertinent law that appears to serve no rational purpose except to prevent constitutionally aggrieved property owner from getting their day in court. See e.g. Gideon Kanner & Michael M. Berger, Shell Game! You Can’t Get There from Here — Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 Urban Lawyer 671 (2004). And if you think that we feel that way because we represent owners in these cases, we offer here for your consideration the views of a sitting Justice of the Texas Supreme Court, joined by two of his colleagues. They speak for themselves, leaving only the troubling question of why citizens should respect a judiciary that is capable of such mistreatment of faultless people  who look to the courts for protection of their constitutional rights.

“This case illustrates how the government can use the ripeness requirement to whipsaw a landowner. The government can argue either that there was no request for a variance when there should have been, or that the request was not specific enough, or that it was not reasonable enough, or that there was insufficient time  to consider it–and therefore the landowner’s regulatory takings claim is premature, unripe, and should be dismissed. Or else, it can argue that a request for a variance would be a waste of time, or that none was authorized, or that the landowner should have known his ridiculous proposal would never be seriously considered–and therefore his claim is late, barred, and should be dismissed. One way or the other, the result is the same. Ripening a regulatory-takings claim thus becomes a costly game of “Mother, May I”, in which the landowner is allowed to take only small steps forwards and backwards until exhausted.”

“When [the landowner] first sued [the] . . . County , alleging that an ordinance aimed at stopping [it] from using its property as a nonhazardous industrial waste landfill effected a compensable taking, the County argued that it ‘ha[d] the authority to grant a variance, or even to rescind the ordinance, if [the landowner] present[ed]  sufficient justification’, and therefore [the owner’s] action was not ripe because it ‘ha[d] not obtained a final decision from the County’. This embarrasing fact is buried in a footnote to the Court’s [majority] opinion and never discussed. After [the plaintiff] lost, it submitted a lengthy and detailed request for a variance, which the County summarily denied. Now in this, [the plaintiff’s] second state-court suit against the County on its regulatory-takings claim (it has also sued three times in federal court), the County argues that the prior action was ripe after all and bars this one because requesting a variance was futile. The Court agrees and holds that [the plaintiff] should not have ‘another bite at the apple’, as if being forced to bob for apples is the same as ever getting a bite.” Hecht, J., joined by Medina and Willet, J.J., dissenting in Hallco Texas, Inc. v. McMullen County (Tex. 2007) 221 S.W.3d 50, 63-64, footnotes omitted.

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