Posted by: Patricia Salkin | October 10, 2011

Fed. Dist. Court in AZ Rules an Ordinance Requiring Open Land is a Valid Use of a City’s Police Power and Not a Violation of Substantive Due Process and a Potential Takings Claim is Not Yet Ripe for Review

The City of Scottsdale, Arizona enacted an ordinance in 1991 imposing zoning restrictions on certain lands.  In an attempt to protect nature and preserve open space, the ordinance required land to be left undisturbed as a Natural Area Open Space (“NAOS”).  In 2002, plaintiff purchased four residential lots in the City.  Around 2009, plaintiff attempted to construct a berm but were cited for violating the NAOS ordinance.  

Plaintiff subsequently brought this action alleging (1) a facial takings claim on the city, arguing that enacting the statute itself has resulted in a reduced property value; (2) an as-applied takings claim; and (3) a due process claim, alleging that the ordinance was an invalid use of the State’s police power.  

The court quickly dismissed the facial takings claim as time barred.  The statute of limitations in Arizona is two years and, thus, since the statute was enacted in 1991, any facial takings claim is untimely. Second, the court addressed the as-applied takings claim, first looking at whether the claim was ripe under the Williamson County test (a claim is only ripe where (1) a government entity has reached a final decision regarding plaintiff’s property rights and (2) the plaintiff has “sought, and been denied, compensation” by the state).  Since plaintiff had not yet sought compensation by the state, the Court held that this claim lacks ripeness. Finally, the court examined plaintiff’s due-process claim.  Preserving open space, said the Court, is a legitimate government interest, and as such it is within a state’s broad police power.  The Court further noted that requirements of open land have historically been a valid exercise of a state’s police power.  Since plaintiff presented no evidence that the law does not further its purported purposes, the ordinance does not violate the plaintiff’s due process rights.  Therefore, the Court dismissed all but the as-applied takings claim which it remanded to state court to ripen.  

Kunzelman v. City of Scottsdale, 2011 WL 3510883 (D. Ariz. 8/10/2011) 

The opinion can be accessed at:,33&as_vis=1

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