Iin North Mill Street, LLC v. City of Aspen, No. 20-1130 (July 27, 2021), the U.S. Court of Appeals for the Tenth Circuit held that a claim that the city's denial of a rezoning application to allow residential development effected a taking was not ripe because the city's process also allows a property owner to ask the city to allow site-specific development even if not in conformity with the current zoning, and the plaintiff had not availed itself of this process. Thus, the takings claim was not ready for judicial review under "final decision" Williamson County ripeness.
But the really interesting part of the opinion is a footnote. See slip op. at 15 n.9. There, the court noted that it is joining the majority of other courts in holding that "final decision" ripeness is not a matter of a lack of Article III jurisdiction. Rather, it is merely a "prudential" matter -- which means that it isn't some hard-line rigid rule, but can be overlooked and the case reviewed. The footnote notes (ha!) the circuit split, with the Tenth now joining the Second, Fourth, Fifth, Seventh, and Ninth in concluding it is prudential only, while the First and Eighth Circuits treat it as jurisdictional.
Justice Thomas noted the split in a case from a few years ago where he and Justice Kennedy dissented from denial of cert, so there's little doubt there's an actual and real divergence of analysis, if not a divergence of result. And this isn't the most clear area -- at least analytically -- but at the very least, this case resolved the intra-circuit district court split and came down on the side of prudential. See slip op. at 17-18.
Here, the Tenth Circuit concluded that even though the District Court was wrong when it dismissed the takings claim for lack of a final decision and held it lacked jurisdiction, the claim was nonetheless not one in which the court should have exercised its prudence and heard the claim anyway. The property owner might get that residential development if it went through the city's process to ask whether it might allow development that is contradictory to the zoning.
The owner argued that the city's ordinance doesn't actually allow it to approve residential development. And besides, the city's record of saying no residential development on this property shows that it was futile to ask "really?" The court rejected both arguments.
Thus, the court concluded, all of the reasons for the Williamson County final decision rule are satisfied. We don't know whether the city has gone "too far," because we don't know yet how far it has gone.
North Mill Street, LLC v. City of Aspen, No. 20-1130 (10th Cir. July 27, 2021)