This note sets forth the facts and procedural history of Suitum. The background of ripeness in the context of government regulation of land use and constitutional takings claims is examined in Section III. The major area of inquiry is the evolution and application of the Williamson County two hurdle, "final decision" and "state procedures," ripeness test. The analysis of both the Ninth Circuit opinion and the reversing United States Supreme Court opinion are presented in Section IV. Section V evaluates the differing positions of the Ninth Circuit and the Supreme Court regarding the application of the ripeness test to TDRs. The district court's likely approaches to applying the state procedures test in Suitum on remand are then discussed, with the conclusion that Suitum will meet the state procedures test for ripeness. Suitum will undoubtedly make its way back to the Ninth Circuit and possibly the Supreme Court on the takings issue, and this section also examines the issue of whether TDRs are a property use or merely a compensation for a taking, as raised in Justice Scalia's concurrence. Section VI concludes that there is ample precedent and evidence in Suitum to hold that that the TDRs are a property right.
Michael B. Hitchcock,
Suitum v. Tahoe Regional Planning Agency: Applying the Takings Ripeness Rule to Land Use Regulations and Transferable Development Rights, 28 Golden Gate U. L. Rev.