Two or three steps? You decide.
A takings case arising from the same locality in Rhode Island that gave us Palazzolo (Westerly, R.I.). In DiBiccari v. Rhode Island, No. 2023-353 (Mar. 10, 2026), the Rhode Island Supreme Court held that the owner’s federal takings claim was not ripe because even though the State agency had denied a variance to allow installation of a wastewater system, the owner had not pursued the agency’s administrative appeals process.
DiBiccari owns a vacant parcel on which he wants to build a home. Part of those plans would be the construction of an “onsite wastewater treatment system” (septic, we are assuming). But the state’s regulations clearly don’t allow that, so he asked the state Department of Environmental Management for a “variance.” DEM denied the variance “because the property’s water table was zero inches from its original ground surface.” Slip op. at 2. Apparently, it was strictly applying its rules, no exceptions.
You can challenge the denial of a variance via the DEM’s internal process to the agency’s Administrative Adjudication Division. But DiBiccari didn’t, and sued in state court alleging, inter alia, state and federal claims for Lucas-type takings. The trial court granted the State’s motion to dismiss for failure to state a claim.
The Rhode Island Supreme Court affirmed. It first rejected DiBicari’s claim that it would have been “futile” to administratively appeal, because the AAD has no authority to overrule the DEM’s denial of a variance. DiBiccari asserted that the regulations make it mandatory for the AAD to reject an appeal because it lacks discretion to allow a system where the depth to groundwater is less than 12 inches (and my plans have 0″ distance).
The court didn’t agree it would have been futile to appeal. Yes, the section DiBiccari appealed under gave the AAD no discretion to allow his system, but he could have appealed under a different provision under which the AAD has the power to grant a variance where literal application of the rules would work a hardship. Slip op. at 8-9. He should’ve gone that route, so he needed to. In Rhode Island, you have to exhaust your administrative remedies.
Next, the court held that the federal takings claim was not ripe, because DiBiccari had not received a final decision from the agency about whether he could build the septic system. But wait, you say, he got a “no” to his variance request from DEM. And isn’t all you need to ripen a takings claim is the regulator denying a variance, and there’s no requirement you exhaust state remedies, right?
Yes, the final decision ripeness requirement means that where the agency says no, you may have to ask the agency, “when you said no, do you really mean no?” (what the U.S. Supreme Court calls a “variance”). Land use lawyers know the meme: to ripen a claim, you need denial of an application and denial of a variance. Requiring a third step of further administrative appeal would be the forbidden “exhaustion.”
So what gives here, with the Rhode Island Supreme Court requiring DiBiccari to exhaust, but then holding the takings claim was not ripe? The way we read it, the court apparently viewed the facts here as only being a two-step process in which DiBiccari had taken but one step. The first step was DEM denying his request for a “variance” and the second step was the one he hadn’t taken, an administrative appeal of that denial:
Here, Mr. DiBiccari’s claim is not ripe because the AAD has not had the opportunity to decide and explain the reach of its own regulations under Section 6.53, nor has it had the opportunity to grant a variance as permitted under the regulations. As discussed above, the AAD has a high degree of discretion to reject, modify, adopt, or remand the determination of DEM; as such, we do not know whether, upon review by the AAD, Mr. DiBiccari would have been entitled to build the single-family residence for which he applied. See Palazzolo, 533 U.S. at 621 (permitting a plaintiff to bring claims where there was “no doubt” that plaintiff would not be able to fill or develop the wetlands on his property, and therefore “[f]urther permit applications were not necessary to establish [that] point”). Mr. DiBiccari has not stated a claim for an unconstitutional taking because, unlike in Palazzolo, the AAD retains the authority to grant him a variance. Until it declines to do so, “the extent of the restriction on property is not known and a regulatory taking has not yet been established.” Id. Thus, we affirm the dismissal of Mr. DiBiccari’s takings claim on these grounds, albeit different ones than relied on by the trial justice.
Slip op. at 13.
But we’re thinking that maybe DiBiccari viewed it differently. (We’re not sure because the opinion doesn’t provide details.) He probably thought he had already taken two steps. The first step being that the regulations plainly say that his septic plans can’t be approved. That is the initial “no,” and it would be futile to apply for a septic system that is sure to be denied. The second step was asking DEM for a variance from those strict rules. DEM saying no was all he had to do to get the “final” decision to ripen his takings claim. So he shouldn’t be required to take a third step, the administrative appeal to the AAD. That, as he presumably saw it, would require exhaustion.
So there it is. The court held that DiBiccari had not exhausted his administrative remedies. But at the same time, the court held that to ripen his takings claim, he didn’t need to exhaust administrative remedies (but that he still had not obtained a final decision because he hadn’t exhausted administrative remedies).
That’s the only way we can figure that the court reached what seems like inconsistent rulings.
DeBiccari v. Rhode Island, No. 2023-353 (R.I. Mar. 10, 2026)