Check this out, the latest takings cert petition from the Pacific Legal Foundation shop.
Since this is one of ours (our colleague Chris Kieser is in the lead), we're not going into too much detail, but will say that this involves ripeness in a regulatory takings claims, a topic we've been focused on a lot lately.
The question here is once the government says "no" to a development plan, must the owner keep on asking? What's that old adage? If at first you don't succeed, try and try again? We know that in land use, that means as long as the government says it is willing to "clarify" or "change" its decision (something it almost always asserts it is able and willing to do), most courts will very likely never hold it to task. Planning authorities know this, and as a consequence are hardwired to almost never say no, and only "no, but..." or "maybe." Which puts owners in permit purgatory. Or as The Eagles noted, "you can check out any time you like, but you can never leave."
Until the Supreme Court wakes up to this dynamic, nothing is likely to change.
Here's the Question Presented:
Lemon Bay Cove, LLC, sought permission from the United States Army Corps of Engineers to develop coastal property in Charlotte County, Florida. After soliciting public comment concerning the environmental impact of the proposed project, the Corps told Lemon Bay to look for a different parcel to develop. More than three years later, the Corps denied Lemon Bay’s permit application with prejudice. Lemon Bay sued, arguing that the denial of the permit deprived the land of all economically viable use and thus effected a per se taking under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The Court of Federal Claims held that Lemon Bay had not shown a denial of all economically viable use because it could have asked the Corps for permission to build a smaller development that might have been approved.
The question presented is whether a regulatory takings claim seeking just compensation under Lucas may be defeated by the mere possibility that a permitting authority might have approved a smaller development proposal.
Lawprof Dennis Crouch has written up the case in more details at the Patently-O blog, in his post "Bleak House Revisited: Lemon Bay Cove and the Regulatory Takings Quagmire." Recommended reading.
Follow along as the case progresses here, or on the Court's docket.
Petition for Writ of Certiorari, Lemon Bay Cove, LLC v. United States, No. 24-134 (U.S. Aug. 2, 2024)
