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Regulatory Takings: Ripeness: Exhaustion and Finality Featured

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Takings jurisprudence requires that courts know the extent of a regulation’s interference with property rights prior to making any adjudication on its validity. Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985)

A property owner has an actionable 5th Amendment takings claim when the government takes their property without paying for it and so may bring suit in federal court under section 1983 at that time, without “exhausting” state court suits. Knick v. Township of Scott, Pennsylvania, 862 F. 3d 310 (2019)

The Supreme Court in California Pakdel v. City and County of San Francisco, 141 S.Ct. 2226 (2021), set the Finality Rule for challenging a regulatory taking. "Once the government is committed to a position…the potential ambiguities evaporate and the dispute is ripe for judicial resolution."

At issue was the time for the property owners to sue the government over the application of state law and local restrictions on conversion of tenancy-in-common interests into condominium-type.

The bottom line is that once it is clear that the government is committed to a position, the dispute is ripe for judicial resolution.

More recently the 10th Circuit applied these finality principles in North Mill Street, LLC v. City of Aspen, 6 F.4th 1216 (10th Cir. 2021).  "The finality requirement does not require landowners to exhaust administrative procedures, or to 'submit applications for their own sake.' . . . Instead, a “final decision” has been reached and a regulatory takings claim becomes prudentially ripe for judicial resolution '[o]nce the government is committed to a position.'

The lessons are that landowners can bring their regulatory takings cases in federal court without going through state court first, and once the city, town, county, state or other governmental body is committed to a position on the action being challenged as unconstitutional. The US Supreme Court has fine-tuned the formerly rigid prerequisites of exhaustion and finality.

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Gregor I. McGregor, Esq.

GREGOR I. McGREGOR, Esq. is the founder of New England’s oldest environmental law firm McGregor & Associates, PC in Boston, formed in 1975 and now McGregor Legere & Stevens,PC (formerly McGregor & Legere PC). The firm handles all aspects of environmental law, land use, real estate, and related litigation. The firm is a founding member of the Environmental Law Network (ELN), an alliance of specialty law firms, in the United States and abroad, sharing their legal expertise and practical experience for the benefit of their clients. Mr. McGregor enjoys Martindale-Hubbell’s highest rating for attorneys (AV).

In 45 years of environmental practice, Mr. McGregor's cases in court broke new ground in the law of Environmental Impact Statements under the National Environmental Policy Act (NEPA) and Massachusetts Environmental Policy Act (MEPA), wetland and floodplain protection under the Massachusetts Wetlands Protection Act, hazardous waste cleanup liability and cost-recovery under the Massachusetts Superfund, reduced taxes and tax exemptions for qualified land conservation transactions, constitutional protections for open space and parkland, Home Rule environmental ordinances and bylaws of cities and towns, law enforcement and contempt remedies, and the constitutional doctrine of Regulatory Takings.

Before 1975, Mr. McGregor was an Assistant Attorney General of Massachusetts and the first chief of the Attorney General’s Division of Environmental Protection. In that capacity he advised and represented the Commonwealth during the formative years of Massachusetts environmental statutes, agencies, regulations, enforcement and cases in court.

Mr. McGregor is editor of the two-volume treatise on Massachusetts Environmental Law, published by Massachusetts Continuing Legal Education, Inc.(MCLE). He is co-chair of MCLE’s annual Environmental, Land Use, and Energy Law Conference and MCLE’s Real Estate and Environmental Law Curriculum Advisory Committee. He received from MCLE in 2013 its Scholar-Mentor Award recognizing his dedication to legal scholarship and leadership.

Mr. McGregor chairs the Environmental Committee of the Real Estate Bar Association for Massachusetts (REBA) and serves as a member of the REBA Board of Directors. He is an active member of the Massachusetts Municipal Lawyers Association (MMLA), which honored him for his career contributions to legal education and effective advocacy on the Home Rule Doctrine. At the National CLE Conference in Vail, CO, Mr. McGregor co-chairs an annual seminar on Environmental Law, Land Use, Energy & Litigation for attorneys from across the United States.

Mr. McGregor is a long time member of the board of directors of the Massachusetts Association of Conservation Commissions (MACC) having served as Board President twice. He has handled several cases for MACC as amicus and is a regular presenter at their annual meeting.

Mr. McGregor is a graduate of Dartmouth College and Harvard Law School.

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