holding that under the facts presented, the court "need not decide in this case whether to adopt the per se requirement in the Seventh and Ninth Circuits that at least one meaningful application be submitted to the local zoning authority before an as-applied claim is ripe for adjudication”
How later courts described this case
- holding that under the facts presented, the court "need not decide in this case whether to adopt the per se requirement in the Seventh and Ninth Circuits that at least one meaningful application be submitted to the local zoning authority before an as-applied claim is ripe for adjudication”
- recognizing substantive due process claim where the plaintiff alleges that a property regulation is “arbitrary and capricious, does not bear a substantial relation to the public health, safety, morals, or general welfare, and is therefore an invalid exercise of the police power”
- noting that while “[m]ost courts have referred to this type of claim as a substantive due process claim,” that “terminol- ogy has contributed to [] confusion” between this type of claim and due process takings claims
- finding that unlike facial challenges to ordinances, a plaintiff must first demonstrate that the regulation has been applied to them
Written by the judges who cited it.
The opinion
SHOOB, District Judge,
concurring:
I concur with the majority opinion insofar as it provides an appropriate, though unwieldy, framework for analysis of ripeness issues. The majority probably reaches the correct conclusion in light of this Court’s decision in Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir.1989). I write separately because, while the majority concedes that “[djecisions on ripeness issues are fact-sensitive,” I do not believe the applicable law reflects or incorporates sufficient deference to the trial court’s factual determinations.
The deficiencies of the ripeness standard in zoning cases are most apparent with regard to the “futility exception.” To qualify for this exception to the final decision requirement, at least two circuits demand submission of one meaningful zoning application. See Unity Ventures v. County of Lake, 841 F.2d 770 (7th Cir.), cert. denied, 488 U.S. 891 , 109 S.Ct. 226 , 102 L.Ed.2d 216 (1988); Kinzli v. City of Santa Cruz, 818 F.2d 1449 , as amended, 830 F.2d 968 *728 (9th Cir.1987), cert. denied, 484 U.S. 1043 , 108 S.Ct. 775 , 98 L.Ed.2d 861 (1988). That often logical approach, however, fails to account for specific facts, which, in individual cases, might render even a single application a waste of time. 1
The district court concluded that the adoption of a sector plan by appellants was tantamount to an adverse zoning decision. The district court further found, in view of the circumstances surrounding adoption of that sector plan, that any attempt to obtain a more favorable zoning decision would be futile. I would not disturb lightly the conclusions of the district court, which is infinitely more knowledgeable about the practical realities in this case. Moreover, where such factual considerations are involved, I do not believe the appellate court should substitute its detached view of whether further participation in the zoning process would be futile for the informed findings of the trial court.
For the foregoing reasons, I concur in the result only.
. Although it does not reach a decision on this issue, the majority cites with approval the position of the Seventh and Ninth Circuits. In addition, by stating that "we are not convinced that the facts of this case demonstrate that it would be futile for Eide to pursue commercial zoning" the majority demonstrates a similar lack of deference to the district court’s factual findings.