The Plaintiffs, owners of two contiguous lots, submitted an application and a preliminary plan to subdivide the lots into three parcels to facilitate the construction of a restaurant, nightclub, and billboard on each respective proposed parcel. The Office of Planning and Development recommended conditional approval of the subdivision subject to terms that the Plaintiff agreed to. Pursuant to the local ordinance, the Plaintiff then requested approval by the County Land Use Control Board. Following a hearing, where several community members voiced objections to the application out of concern that the land might be used for an adult entertainment business since the applicant owned interests in the adult entertainment industry in the community and elsewhere, the Land Use Control Board denied the motion to approve the proposal as recommended, but did pass a motion requiring the Plaintiff to resubmit its application as a planned development, rather than a subdivision, which would allow for closer regulation of the uses to which the property would be put. Instead of resubmitting an application, however, the Plaintiff appealed to the City Council. Following a rejection of their appeal to the Council, the Plaintiff initiated claims in federal court alleging a violation of their First and Fourteenth Amendment rights asserting that their application was inappropriately denied based upon a hostility to their involvement in the adult entertainment industry and a concern that the property would be used for adult entertainment purposes. The District Court dismissed the complaint.
On appeal, the Sixth Circuit Court of Appeals limited their review to the issue of whether the Plaintiff’s claim is ripe for review. The Defendants asserted that there has been no final decision regarding the development, as evidenced by the fact that the Plaintiff has not submitted a revised plan for the development as requested by the Land Use Control board. The Plaintiff argued that the Williamson County ripeness test, which requires a final decision by the government, applies to takings claims, but not to First Amendment claims. The Sixth Circuit pointed out that while they have extended the finality requirement of Williamson County beyond regulatory takings to other constitutional claims arising out of land use disputes (e.g., equal protection) and that other circuits have extended the requirement to equal protection and due process claims emerging in the context of land use disputes, the Sixth Circuit had not yet considered extension of the rule specifically to a First Amendment claim. Relying on the Second Circuit’s analysis in Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005) which reasoned that Williamson County applies to all land use disputes (“since Williamson County, courts have recognized that federalism principles also buttress the finality requirement. Requiring a property owner to obtain a final, definitive position from zoning authorities evinces the judiciary’s appreciation that land use disputes are uniquely matters of local concern more aptly suited for local resolution.” at 348). Acknowledging that the Sixth Circuit had in the past departed from the finality requirement for purely procedural claims (e.g., procedural due process), the Court said that this type of claim is not present in the instant matter (the claim is purely substantive and not procedural). Lastly, the Court held that the Plaintiff has not suffered an immediate injury since if they file a new plan as requested, there is a chance their proposal will be approved, and then Plaintiffs would be entitled to proceed, there is no final decision and the present claim is therefore not ripe.
Insomnia v. City of Memphis, Tenn., 2008 WL 2121053 (C.A. 6 (Tenn.)).
The opinion can also be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/08a0285n-06.pdf
