Federal court dismisses taking claim as 'unripe'

Sobel v. Derry
U.S. District Court, D.N.H.,

The following summary is based on an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases apply federal law and sometimes New Hampshire law. Their interpretations of New Hampshire law are not binding on the New Hampshire Supreme Court.

Sobel was aggrieved by a zoning decision concerning his property (not specified in the opinion) made by the Town of Derry. Rather than seek a variance, Sobel filed suit in the superior court, alleging that the decision amounted to an unlawful taking of his property in violation of his federal constitutional rights. The Town invoked its procedural right to remove the case to federal court to address the federal constitutional issue. The Court dismissed the federal constitutional claim as "unripe":

Federal claims that challenge state zoning decisions, like those Sobel asserts here, are not ripe if the "government entity charged with implementing the [zoning] regulations" has not "reached a final decision." Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 187-88(1985). There is no "final decision" when the plaintiff has not sought a zoning variance. Id. At 188-90.

The taking claim was dismissed "without prejudice," meaning that Sobel might be able to reassert it in the future after pursuing his remedies under state law.

This case is yet another example of the requirement that applicants in land use cases must exhaust their administrative and other state law remedies before an unconstitutional regulatory taking can be established.