In 2014, Fane Lozman bought over seven acres of submerged and waterfront property adjacent to a residential area of Riveria Beach, Florida. At the time, Lozman’s parcel was zoned for residential use, and he planned to develop the land and build homes. However, in 2020, the City Council adopted an ordinance to downzone Lozman’s property as a “special preservation” district to conserve the natural environment along that stretch of land. Among other restrictions, these regulations imposed a flat ban on homes on Lozman’s parcel—no exceptions.

Lozman brought a Fifth Amendment lawsuit against the city, arguing that the city’s rezoning constituted a taking without just compensation because it left him without any economically beneficial uses of his property. However, the Eleventh Circuit dismissed Lozman’s claim as “unripe” because he had never sought a variance from the new zoning laws. Mr. Lozman has petitioned the Supreme Court to reverse the decision that his claim is unripe and to vindicate his property rights.

Now Cato, joined by the Southeastern Legal Foundation, has filed an amicus brief in support of Mr. Lozman.

In takings lawsuits, the ripeness doctrine generally requires the property owner to obtain a “final decision” from their local government. This finality and ripeness rule makes sense in some takings disputes, like when the land-use policies at issue include disputes over tentative planning documents, conditional approvals, and reversals in policy. But, as the Supreme Court explained recently in Pakdel v. City of San Francisco (2021), “[t]he finality requirement is relatively modest. All a plaintiff must show is that ‘there [is] no question … about how the ‘regulations at issue apply to the particular land in question.’”

Here, the ordinance is codified and unambiguous—in a word, final. Yet, the Eleventh Circuit announced a novel, perplexing rule found nowhere in Supreme Court precedent: “An ordinance is rarely a ‘final decision.’” But in common usage and understanding, a codified ordinance is final. City leaders certainly view their zoning ordinances as final decisions. The ordinances impose immediate obligations on property owners and are enforced with severe penalties. It would be odd, indeed, for a landowner to reject an ordinance penalty with the Eleventh Circuit’s new rule—“an ordinance is rarely a final decision”—and treat an ordinance as akin to an opening offer in a negotiation.

Further, too many courts strictly interpret ripeness standards against landowners, and local governments often use the doctrine to prevent property owners from bringing suit against them. Because local governments have tremendous discretion over zoning applications, they often impose exorbitant costs and delays on the property owner, making it difficult for the property owner to then ripen their claims.

As scholars have noted, “[n]o other constitutional claimant is made to run a litigation gauntlet like the one established for property owners.” The Supreme Court should grant the petition, reverse the court below, and protect Americans’ access to the courts in takings cases.