You know the drill: permitting authorities know that if they take a definitive position about how a regulation works on a particular piece of property, a takings challenge is ripe. So in many cases we see either the authority taking affirmative steps to keep on saying “maybe,” or at least providing a definitive “no.” Or even where there’s a sold “no” from either the authority itself or the situation makes it pretty obvious that the uses the owner seeks approval for are going nowhere, we often see authorities argue in court that there’s still a chance we might say yes. And courts buy this tactic all the time.
This was the situation in the recent opinion from the U.S. Court of Appeals for the Sixth Circuit in SW Nashville EB Owner, LLC v. Metro. Gov’t of Nashville & Davidson Cnty, No. 25-5781 (Aug. 14, 2026). But here, the court didn’t buy what Nashville was selling.
[Disclosure before we go further: this is one of ours.]
Short story is that SW wanted to redevelop a vacant and dilapidated building it owns in Nashville into multi-family housing. Because the zoning includes use for multi-family development “by right,” it looked like a clear path. Site-plan approval and other ministerial approvals were all that was needed. But instead of checking the approval to see if it met the code(s), Nashville’s planning commission “stepped in” and “put an indefinite hold” on the property “that prohibited review of” SW’s ministerial application. Slip op. at 2-3.
The reason for the “hold?” Nashville may want to acquire the land in the future for a major roadway. That’s right, good old land banking. After unsuccessfully trying to get the application “moving again,” SW sued in state court, asserting among other things a takings claim. The city removed the case to federal court and (you guessed it) moved to dismiss, claiming the suit was brought too late.
The district court agreed to dismiss, but not because the claim was made too late and beyond the statute of limitations, but because it was too early:
the district court concluded that SW Nashville’s takings and due-process claims were unripe because “there has never been a final decision” on SW Nashville’s permit application. MTD Op., R.45, PageID
289, 292. It then dismissed SW Nashville’s claims on that basis.
Slip op. at 4. SW appealed.
The Sixth Circuit held the claim was ripe:
As alleged, the factual basis of SW Nashville’s claims is straightforward. SW Nashville purchased valuable property. SW Nashville then applied for a permit to develop the property in a way the law expressly permits. But rather than process that permit, Metro imposed an indefinite development hold. That hold froze Metro’s consideration of SW Nashville’s application. And it barred SW Nashville from building on the property while at the same time rendering the land “worthless” for resale. 2nd Am. Compl., R.44, PageID 261. That dynamic has led to SW Nashville’s incurring “millions of dollars in carrying costs” during the wait for Metro’s logjam to clear. Id. From there, SW Nashville asserts that it has been deprived of the use of its property—and suffered compounding financial harm—without just compensation or due process from Metro.
Slip op. at 6.
Here’s the key points in the opinion:
Final decision ripeness is “prudential” not jurisdictional. “In the land-use context, however, the finality requirement is a “prudential hurdle[],” not an element of constitutional ripeness.” Slip op. at 7. Yes, this is a long-established point. But it bears repeating because some courts don’t get that this isn’t about injury and standing, only about whether a federal court that has jurisdiction should decline to exercise it (most often because of the “land use stuff is beneath the dignity of the federal judiciary” trope.
Prudential ripeness is not exhaustion, even though they may “overlap.” Again, a long-established point that many courts don’t really apply correctly. But the Sixth Circuit got it: “At bottom, finality asks whether a definitive decision has been made: It requires ‘the government entity charged with implementing the regulations’ to have ‘reached a final decision regarding the application of the regulations to the property at issue.’ Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). By contrast, exhaustion requires a party to do more even though the relevant actor has made its decision—typically, by properly pursuing local administrative or judicial avenues for relief from the decision prior to filing suit.” Because the city blocked SW from undertaking any construction on the site and prohibited review of its ministerial applications, it had “committed to a position,” and the takings claim was ripe. Slip op. at 9.
Final decision ripeness doesn’t turn on whether the authority has affirmatively acted (or even acknowledges it has made a decision). The district court held the city had not made a final decision on what uses it was allowing on the property because the city hadn’t made a decision, merely put a “hold” on deciding. The Sixth Circuit rejected that conclusion, and instead took a record- and reality-based approach, focusing on the city’s actions, not it words or argument. Here, the planning commmission put the kibosh on SW’s applications. This “hold was made outside of the ‘Code-mandated permitting process’ and required ‘defer[ring] review of building permits’ for the ‘indefinite future.” Slip op. at 11. And “SW Nashville has no means to alter Metro’s no-development decision. Metro’s affirmative choice to freeze any development of SW Nashville’s parcel was thus a property-use decision made, not a decision delayed. That is all prudential ripeness requires.” Id.
Check it out.
SW Nashville EB Owner, LLC v. Metro. Gov’t of Nashville & Davidson Cnty, No. 25-5781 (6th Cir. Aug….
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