dissenting:
I respectfully dissent. While I agree at a minimum with the decision to remand the case for a new trial on damages because excessive, I think it more logical to hold that the Herringtons’ claims are simply not ripe for review and should have been dismissed by the district court. The Herring-tons assert violations of their rights to procedural and substantive due process and to equal protection. As the majority points out, the only injury derives from delay in consideration of the Herringtons’ subdivision application. Slip op. at 41. The majority’s opinion highlights the difficulty of assessing the damages caused by such a due process violation when it says “we know neither the proper length of that delay nor the ‘highest and best permissible use.’ ” Id. at n. 23. The suggestion of the necessity for a surrogate measure to calculate unknown damages indicates to me that in reality a case in this posture is not ripe for review.
The majority holds that the Herringtons met the “final decision” ripeness requirement enunciated in Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.1987), a regulatory taking case. The fact that application of the Kinzli factors to this case leads to a finding that the factors are satisfied suggests that Kinzli offers an inadequate measure of ripeness in a ease involving only claims of due process and equal protection violations. I agree that the Her-ringtons’ proposed subdivision was rejected and that it would have been futile for them to seek a variance, but I do not think this satisfies the essence of the “final decision” requirement for ripeness.
In taking and due process cases, the ripeness requirement is intended to assure that courts can make an accurate determination of the precise economic impact of zoning regulations. That determination cannot be made until “the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 191, 105 S.Ct. 3108, 3119, 87 L.Ed.2d 126 (1985). The Herringtons’ claims are not based on a denial of all use, but on an arbitrary and discriminatory denial of the use they proposed. The County’s rejection of their development plan may have been a final decision about the proposed subdivision, but it was not a final, definitive statement of how the County would apply the general plan to the Herringtons’ land.
The difficulty with treating such claims as ripe for review before the County has finally determined the use it will allow is that damages are not calculable. An excessive jury verdict in such a case is hardly surprising. Any verdict based upon sheer speculation about the amount of damages is prone to be excessive because it is not constrained by any appropriate measure of actual damages. The solution suggested by the majority that on remand a surrogate measure of damages may be employed is a possible solution to the difficulties posed by this case. A better solution would have been to avoid the problem by dismissing the case as not yet ripe for review.