Hat tip to Dean Patty Salkin's Law of the Land blog for bringing this case to our attention. We don't have much to add to her comprehensive write up of the Georgia Supreme Court's opinion in City of Suwanee v. Settles Bridge Farm, LLC, No. S12A1599 (Feb. 18, 2013), a case holding that a regulatory takings case was not ripe because the property owner had not exhausted available administrative remedies. But we do have one thought that she didn't cover, so bear with us while we set the stage.
Settles Bridge obtained city approvals for a residential subdivision. Shortly thereafter, however, it sold the property to Notre Dame Academy, which, under the existing residential zoning could build a school on the site as a matter of right, and "Settles Bridge abandoned its subdivision plan." Upon learning of the sale, the city first adopted a building permit moratorium, and followed that with an amendment to the zoning ordinance requiring developments such as the school to obtain a Special Use Permit. Projects already entitled were exempt. "Thus, though Settles Bridge’s original subdivision plan would have been exempted, any plan by Notre Dame to develop the property as the site for a school would require a special use permit." Slip op. at 3.
Neither Settles Bridge nor the Academy applied for a SUP, but sued for a regulatory takings. Eventually, the Academy settled with the city and terminated the purchase of the property. The trial court awarded Settles Bridge over $2 million in compensation and interest for the taking of its property.
The Georgia Supreme Court reversed because Settles Bridge had not applied for a SUP, nor had it shown it would it have been futile to do so:
The fact that Settles Bridge was pessimistic about its prospects for obtaining a special use permit, even if that pessimism was justified, does not prove that exhaustion of remedies would have been “futile” as this Court has defined that term.
Slip op. at 10. It didn't matter that city officials appeared in the moratorium and the SUP ordinance to have been targeting the property.
But we're confused about what exactly Settles Bridge was supposed to apply for. The opinion states that it had already received city permission to build a residential project, and that it was exempted from the SUP ordinance. We assume (the opinion doesn't say) that what Settles Bridge alleged to have been taken by the SUP ordinance was its right under the sales contract with the Academy which was worth more before the moratorium and SUP ordinance than it was after, and we can't see how making Settles Bridge apply for a SUP for a school it doesn't want to build would ripen that claim any further. If that isn't "futile," then what is?
Any bets whether Settles Bridge will apply for a SUP to build a school?