Regulatory Takings and Ripeness in the Federal Courts

The Supreme Court held in 1987 that compensation is required automatically whenever a municipality takes property by regulation. The Court has also held repeatedly that federal courts cannot even hear such claims until the landowner meets a demanding ripeness test. Landowners are often unable to survive the protracted ripening period even though their claims might ultimately have proved to be valid. And the occasional municipality that loses a takings case may be liable for a huge award that reflects the lengthy ripening period. Federal courts have persistently refused to acknowledge this tension between takings law and takings procedure. This Article seeks to harmonize these two doctrines. After attempting to identify precisely when a regulatory taking becomes effective-a striking deficiency in federal case law-and precisely when it ripens, it examines why there is often a prolonged gap between these two times. The Article proceeds to offer a series of resolutions to this doctrinal conflict. Because much of the problem lies in the municipal permitting process, the Article concludes that the most effective solution may be found in procedural due process law