OCTOBER TERM, 1996
Syllabus
SUITUM
v. TAHOE REGIONAL PLANNING AGENCY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 96-243. Argued February 26, 1997-Decided May 27, 1997
Petitioner Suitum owns an undeveloped lot near Lake Tahoe.
Respondent Tahoe Regional Planning Agency determined that the lot
is ineligible for development under agency regulations, but that
Suitum is entitled to receive certain allegedly valuable
"Transferable Development Rights" (TDR's) that she can sell to
other landowners with the agency's approval. Suitum did not seek
those rights, but instead brought this action for compensation
under 42 U. S. C. § 1983, claiming that the agency's determinations
amounted to a regulatory taking of her property without just
compensation in violation of the Fifth and Fourteenth Amendments.
The District Court held that her claim is not ripe for adjudication
because she has not attempted to sell her TDR's, so that their
specific values are unknown and the court could not realistically
assess whether the agency's regulations have frustrated her
reasonable expectations. The Ninth Circuit agreed and affirmed,
reasoning,
inter alia, that action on a TDR transfer
application would be the requisite "final decision" by the agency
regarding its regulations' application to Suitum's lot.
Held: Suitum's regulatory takings claim is ripe for
adjudication.
Pp. 733-744.
(a) Suitum must satisfy the prudential ripeness principle
requiring that she receive a "final decision" from the agency
regarding the application of its regulations to her property.
Williamson County Regional Planning Comm'n v.
Hamilton
Bank of Johnson City, 473 U. S. 172, 186.
Pp.733-734.
(b) The Ninth Circuit's rationale for holding Suitum's claim
unripethat she had failed to obtain a final and authoritative
agency decisionis unsupported by this Court's precedents. See,
e. g., Williamson County, supra, at 191, 193;
MacDonald,
Sommer &
Frates v.
Yolo County, 477 U. S. 340, 349. These
precedents make two points clear about the finality requirement: it
applies to decisions about how a takings plaintiff's particular
parcel may be used, see,
e. g., Williamson County, supra, at
191, and it responds to the high degree of discretion
characteristically possessed by land-use boards in softening the
strictures of the general regulations they administer, see,
e.
g., MacDonald, supra, at 350. Suitum's claim satisfies the
demand for finality. It is
726
undisputed that the agency has finally determined that her land
lies entirely within a zone in which development is not permitted.
Because the agency has no discretion to exercise over her right to
use her land, no occasion exists for applying
Williamson
County's requirement that a landowner take steps to obtain a
final decision about the use that will be permitted on the
particular parcel. Although the parties contest the relevance of
the TDR's to the question whether a taking has occurred, resolution
of that legal issue will require no further agency action of the
sort demanded by
Williamson County. Pp.735-739.
(c) Contrary to the lower courts' holdings, action on a possible
application by Suitum to transfer her TDR's is not the type of
"final decision" required by the Court's
Williamson County
precedents. Although those precedents dealt with land, not TDR's,
such a decision might be required, given the agency's position that
TDR's should be considered when determining whether a taking has
occurred, if there were any question here whether Suitum would
obtain a discretionary award of salable TDR's. No such question is
presented, however, since the parties agree on the particular TDR's
to which Suitum is entitled, and no discretionary decision must be
made by any agency official for her to obtain them or to offer them
for sale. Pp. 739-740.
(d) The agency's argument that Suitum's case is not ripe because
no values attributable to her TDR's are known is just a variation
on the preceding position, and fares no better. First, as to her
rights to receive TDR's that she may later sell, little or no
uncertainty remains. Second, as to her right to transfer her TDR's,
the only contingency apart from private market demand turns on the
right of the agency or a local regulatory body to deny approval for
a specific transfer based on the buyer's intended improper use of
the TDR's. However, because the agency does not deny that there are
many potential lawful buyers whose receipt of the TDR's would
unquestionably be approved, the TDRs' valuation is simply an issue
of fact about possible market prices, on which the District Court
had considerable evidence. Similar determinations are routinely
made by courts without the benefit of a market transaction in the
subject property. Pp.740-742.
(e) The agency's argument that Suitum's claim is unripe under
the "fitness for review" requirement of
Abbott Laboratories
v.
Gardner, 387 U. S. 136, 148-149, is rejected.
Abbott
Laboratories is not on point because the petitioners there were
challenging the validity of a regulation as beyond the scope of its
issuing agency's authority, whereas Suitum seeks not to invalidate
the regulations here at issue, but to be paid for their
consequences. Indeed, to the extent that
Abbott Laboratories
is in any sense instructive in the disposition of this case, it
cuts directly against the agency: Suitum is just as definitively
barred from taking any
727
affirmative step to develop her land as the petitioners there,
who prevailed against the contention that their claim was unripe,
were bound to take affirmative steps to comply with the regulations
they were challenging. Pp. 742-744.
80 F.3d
359, vacated and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, KENNEDY, GINSBURG, and BREYER, JJ.,
joined, and in which O'CONNOR, SCALIA, and THOMAS, JJ., joined
except as to Parts II-B and II-C. SCALIA, J., filed an opinion
concurring in part and concurring in the judgment, in which
O'CONNOR and THOMAS, JJ., joined,
post, p.745.
R. S. Radford argued the cause for petitioner. With him on the
briefs were Robin L. Rivett, Victor
J. Wolski, and William
Patterson Cashill.
Richard J. Lazarus argued the cause for
respondent.
With him on the brief were
J. Peter Byrne,
J.
Thomas Susich, Vicki E. Hartigan, Rachelle
J. Nicolle, and
Susan E. Scholley.
Deputy Solicitor General Wallace argued the cause for the United
States as amicus curiae urging affirmance. With him on the brief
were Acting Solicitor General Dellinger, Assistant Attorney General
Schiffer, Anne S. Almy, and John A. Bryson.
*
*Briefs of
amici curiae urging reversal were filed for
the American Farm Bureau Federation et al. by
Timothy S.
Bishop, Michael F.
Rosenblum, John J.
Rademacher, and
Richard L. Krause; for the Building
Industry Association of Washington by
Richard M. Stephens
and
John M. Groen; for the Defenders of Property Rights et
al. by
Nancie G.
Marzulla; for the Institute of
Justice by
William H. Mellor, Clint Bolick, Scott G.
Bullock, and
Richard A. Epstein; for the Southeastern
Legal Foundation by
Henry D. Granberry III; for the Tahoe
Lakefront Owners' Association by
Ronald A. Zumbrun, John H.
Findley, and
Meriem L. Hubbard; for the Tahoe-Sierra
Preservation Council, Inc., by
Lawrence L. Hoffman; and for
the Mayhews et al. by
Charles L. Siemon.
Briefs of
amici curiae urging affirmance were filed for
the Governor of California et al. by
Michael A. Mantell; for
the State of Nevada et al. by
Frankie Sue Del Papa, Attorney
General of Nevada, and
William J. Frey and C.
Wayne Howle, Deputy Attorneys General, and by the
Attorneys
728
JUSTICE SOUTER delivered the opinion of the Court. Petitioner
Bernadine Suitum owns land near the Nevada shore of Lake Tahoe.
Respondent Tahoe Regional Planning Agency, which regulates land use
in the region, determined that Suitum's property is ineligible for
development but entitled to receive certain allegedly valuable
"Transferable Development Rights" (TDR's). Suitum has brought an
action for compensation under Rev. Stat. § 1979, 42 U. S. C. §
1983, claiming that the agency's determinations amounted to a
regulatory taking of her property. While the pleadings raise issues
about the significance of the TDR's both to the claim that a taking
has occurred and to the constitutional requirement of just
compensation, we have no occasion to decide, and we do not decide,
whether or not these TDR's may be considered in deciding the issue
whether there has been a taking in this case, as opposed to the
issue whether just compensation has been afforded for such a
taking. The sole question here is whether the claim is ripe for
adjudication,
General for their respective States as follows:
Margery
S.
Bronster of Hawaii,
Jeffrey L. Amestoy of Vermont,
J. Joseph Curran, Jr., of Maryland, and
Joseph P.
Mazurek of Montana; for the State of New Jersey by
Peter
Verniero, Attorney General,
Mary C.
Jacobson,
Assistant Attorney General, and
Rachel J.
Horowitz, Deputy Attorney General; for the State of New York
by
Dennis C.
Vacco, Attorney General,
Barbara
G.
Billett, Solicitor General,
Peter H. Schiff,
Deputy Solicitor General, and
John J. Sipos
and
Lisa M. Burianek, Assistant Attorneys General; for the
City of New York by
Paul A. Crotty, Leonard J.
Koerner, Stephen J. McGrath, and
Cheryl
Payer; for the League to Save Lake Tahoe by
E. Clement
Shute, Jr., and
Christy H. Taylor; for the National
League of Cities et al. by
Richard Ruda; and for the
National Trust for Historic Preservation in the United States et
al. by
Jerold S.
Kayden, Louise H. Renne, R. Jeffrey
Lyman, and
Elizabeth S.
Merritt.
Briefs of
amici curiae were filed for the American
Planning Association by
Brian W Blaesser and
H. Bissell
Carey III; for the Columbia River Gorge Commission by
Lawrence Watters; for the National Association of Home
Builders et al. by
John J. Delaney, Lawrence R.
Liebesman, Mary V. DiCrescenzo, and
Nick Cammarota; and
for Dr. James Nicholas et al. by
John D. Echeverria.
729
even though Suitum has not attempted to sell the development
rights she has or is eligible to receive. We hold that it is.
I
In 1969, Congress approved the Tahoe Regional Planning Compact
between the States of California and Nevada, creating respondent as
an interstate agency to regulate development in the Lake Tahoe
basin. See
Lake Country Estates, Inc. v.
Tahoe Regional
Planning Agency, 440 U. S. 391, 394
(1979). After the 1969 compact had proven inadequate for protection
of the lake and its environment, the States proposed and Congress
approved an amendment in 1980, requiring the agency to adopt a plan
barring any development exceeding such specific "environmental
threshold carrying capacities" as the agency might find
appropriate. Pub. L. 96-551, Arts. I(b), V(b), V(g), 94 Stat. 3234,
3239-3241.1
In 1987, the agency adopted a new Regional Plan providing for an
"Individual Parcel Evaluation System" (IPES) to rate the
suitability of vacant residential parcels for building and other
modification. Tahoe Regional Planning Agency Code of Ordinances,
ch. 37 (TRPA Code). Whereas any property must attain a minimum IPES
score to qualify for construction,
id., § 37.8.E; App. 145,
an undeveloped parcel in certain areas carrying runoff into the
watershed (known as "Stream Environment Zones" (SEZ's)) receives an
IPES score of zero, TRPA Code
§3704.A(3). With limited
exceptions not relevant here, the agency permits no "additional
land coverage or other permanent land disturbance" on such a
parcel.
Id., §
2004.
1 The 1980 compact defines "[e]nvironmental threshold carrying
capacity" as "an environmental standard necessary to maintain a
significant scenic, recreational, educational, scientific or
natural value of the region or to maintain public health and safety
within the region. Such standards shall include but not be limited
to standards for air quality, water quality, soil conservation,
vegetation preservation and noise." Art. II(i), 94 Stat. 3235.
730
Although the agency's 1987 plan does not provide for the
variances and exceptions of conventional land-use schemes, it
addresses the potential sharpness of its restrictions by granting
property owners TDR's that may be sold to owners of parcels
eligible for construction,
id., §§ 20.3.C, 34.0 to 34.3.
There are three kinds of residential TDR's. An owner needs both a
"Residential Development Right" and a "Residential Allocation" to
place a residential unit on a buildable parcel,
id., §§
21.6.C, 33.2.A; the latter permits construction to begin in a
specific calendar year, but expires at year's end,
id., §
33.2.B(3)(b). An owner must also have "Land Coverage Rights" for
each square foot of impermeable cover placed upon land. App. 145;
see also TRPA Code, ch. 20. All owners of vacant residential
parcels that existed at the effective date of the 1987 plan (July
1, 1987), including SEZ parcels, automatically receive one
Residential Development Right,
id., § 21.6.A; owners of SEZ
property may obtain and transfer bonus points equivalent to three
additional Residential Development Rights,
id., §§ 35.2.C,
35.2.D. SEZ property owners also receive Land Coverage Rights
authorizing coverage of an area equal to 1 % of the surface area of
their land.
Id., §§ 20.3.A, 37.11. Finally, SEZ owners, like
other property owners, may apply for a Residential Allocation,
awarded by local jurisdictions in random drawings each year.2
Id., § 33.2.B; App. 98-99. All three kinds of TDR's may be
transferred for the benefit of any eligible property in the Lake
Tahoe region, subject to approval by the agency based on the
eligibility of the receiving parcel for development. TRPA Code
§§20.3.C, 34.1 to 34.3.
In 1972, Suitum and her late husband bought an undeveloped lot
in Washoe County, Nevada, within the agency's jurisdiction, and 17
years later, after adoption of the 1987
2 Counsel for the agency at oral argument represented that "at
this point" there are "fewer applicants than there are allocations"
in Washoe County, where petitioner's land is located, and there is
thus a "100 percent chance of winning the [drawing]." Tr. of Oral
Arg. 39-40.
731
Regional Plan, Suitum obtained a Residential Allocation through
Washoe County's annual drawing. When she then applied to the agency
for permission to construct a house on her lot, the agency
determined that her property was located within a SEZ, assigned it
an IPES score of zero, and denied permission to build. Suitum
appealed the denial to the agency's governing board, which itself
denied relief.
After the agency turned down the request for a building permit,
Suitum made no effort to transfer any of the TDR's that were hers
under the 1987 plan, and there is no dispute that she still has the
one Residential Development Right that owners of undeveloped lots
automatically received, plus the Land Coverage Rights for 183
square feet that she got as the owner of 18,300 square feet of SEZ
land. It is also common ground that Suitum has the right to receive
three "bonus" Residential Development Rights. Although Suitum has
questioned the certainty that she would obtain a new Residential
Allocation if she sought one, the agency has represented to this
Court that she undoubtably would, see
Instead, Suitum brought this 42 U. S. C. § 1983 action alleging
that in denying her the right to construct a house on her lot, the
agency's restrictions deprived her of "all reasonable and
economically viable use" of her property, and so amounted to a
taking of her property without just compensation in violation of
the Fifth and Fourteenth Amendments.3 App. 15, 16. The agency
responded by objecting, among other things, that Suitum's takings
claim was not ripe due to her "failure to obtain a final decision
by TRP A as to the amount of development ... that may be allowed
by" the agency.
Id., at 10. On cross-motions for summary
judgment, the District Court ordered supplemental briefing on
3 Suitum's complaint may have also raised substantive due
process and equal protection claims, see App. 16, 153, but her
petition for a writ of certiorari did not address those issues and
they are not considered here. See n. 6,
infra.
732
the nature of Suitum's TDR's, including "what [TDR's] can be
transferred in [Suitum's] case and the procedures, prerequisites
and value of such transfer as applicable in this case."
Id.,
at 89. The agency introduced an affidavit from a real estate
appraiser, whose opinion was that the Residential Development Right
that Suitum already has, and the three more to which she is
entitled, have a market value between $1,500 and $2,500 each; that
her Land Coverage Rights can be sold for $6 to $12 per square foot
($1,098-$2,196 total); and that her lot devoid of all TDR's would
sell for $7,125 to $16,750.
Id., at 131-132. The appraiser
also said that if Suitum were to obtain a Residential Allocation
and sell it with a Development Right, together they would bring
between $30,000 and $35,000.
Ibid. As if in spite of the
figures supplied by its own affidavit, however, the agency
maintained that the
"actual benefits of the [TDR] program
for [Suitum] ... can only be known if she pursues an appropriate
[transfer] application," with the result that Suitum's claim was
not ripe for adjudication.
Id., at 91. For her part, Suitum
insisted that trying to transfer her TDR's would be an "'idle and
futile act'" because the TDR program is a "sham," 4 and she
supplied the affidavit of one of the agency's former employees
whose view was that "there is little to no value to [Suitum's
TDR's] at the present time as ... either [there is] no market for
them or the procedure for transferring one particular right would
restrict the opportunity to transfer a remaining right."
Id., at 135.5
The District Court decided that Suitum's claim was not ripe for
consideration because "[a]s things now stand, there
4 See Suitum's Response to Defendant's Memorandum Concerning its
Transfer of Development Program 1-2.
5 The District Court disregarded this affidavit, however,
because "[t]here [was] no showing that [Suitum's affiant] is an
expert ... as to the valuation of development rights" sufficient to
satisfy Federal Rule of Civil Procedure 56(e). No. CV-N-91-040-ECR
(D. Nev., Mar. 30, 1994), App. to Pet. for Cert.
C-2, n.
1.
733
is no final decision as to how [Suitum] will be allowed to use
her property." No. CV-N-91-040-ECR (D. Nev., Mar. 30, 1994), App.
to Pet. for Cert. C-3. Although the court found that "there is
significant value in the transfer of [Suitum's TDR's], ... until
[specific] values attributable to the transfer program are known,
the court cannot realistically assess whether and to what extent
[the agency's] regulations have frustrated [Suitum's] reasonable
expectations."
Id., at C-3 to C-4.
The Court of Appeals for the Ninth Circuit affirmed this
ripeness ruling for the like reason that "[w]ithout an application
for the transfer of development rights" there would be no way to
"know the regulations' full economic impact or the degree of their
interference with [Suitum's] reasonable investment-backed
expectations," and without action on a transfer application there
would be no "'final decision from [the agency] regarding the
application of the regulation[s] to the property at issue.'" 6
80 F.3d
359, 362-363 (1996). We granted certiorari to consider the
ripeness of Suitum's takings claim, 519 U. S. 926 (1996), and now
reverse.
II
The only issue presented is whether Suitum's claim of a
regulatory taking of her land in violation of the Fifth and
Fourteenth Amendments is ready for judicial review under prudential
ripeness principles.7 There are two independent
6 The court held that "[t]hese ripeness requirements," while
developed in the regulatory taking context, "are equally applicable
to the due process and equal protection claims." 80 F. 3d, at 362,
n. 1. We address only the ripeness requirements for Suitum's
takings claim, however, and express no opinion on the ripeness of
her other claims.
7"We have noted that ripeness doctrine is drawn both from
Article III limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction."
Reno v.
Catholic Social Services, Inc., 509 U. S. 43, 57, n. 18
(1993). The agency does not question that Suitum properly presents
a genuine "case or controversy" sufficient to satisfy Article III,
but maintains only that Suitum's action fails to satisfy our
prudential ripeness requirements.
734
prudential hurdles to a regulatory takings claim brought against
a state entity in federal court.
Williamson County Regional
Planning Comm'n v.
Hamilton Bank of Johnson City,
473 U. S. 172
(1985), explained that a plaintiff must demonstrate that she has
both received a "final decision regarding the application of the
[challenged] regulations to the property at issue" from "the
government entity charged with implementing the regulations,"
id., at 186, and sought "compensation through the procedures
the State has provided for doing so,"
id., at 194. The first
requirement follows from the principle that only a regulation that
"goes too far,"
Pennsylvania Coal Co. v.
Mahon,
260 U. S. 393,
415 (1922), results in a taking under the Fifth Amendment, see,
e. g., MacDonald, Sommer &
Frates v.
Yolo
County, 477 U. S.
340, 348 (1986) ("A court cannot determine whether a regulation
has gone 'too far' unless it knows how far the regulation goes");
see also
Lucas v.
South Carolina Coastal Council,
505 U. S. 1003,
1014-1019 (1992) (regulation" 'goes too far'" and results in a
taking "at leas[t] in the extraordinary circumstance when
no
productive or economically beneficial use of land is permitted").
The second hurdle stems from the Fifth Amendment's proviso that
only takings without "just compensation" infringe that Amendment;
"if a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the
Just Compensation Clause until it has used the procedure and been
denied just compensation,"
Williamson County, supra, at 195.
Because only the "final decision" prong of
Williamson was
addressed below and briefed before this Court, we confine our
discussion here to that issue.8
8We therefore do not decide whether
Williamson County's
"state procedures" requirement has been satisfied in this case.
Ordinarily, a plaintiff must seek compensation through state
inverse condemnation proceedings before initiating a takings suit
in federal court, unless the State does not provide adequate
remedies for obtaining compensation. See
Williamson County,
473 U. S., at 194-196. Suitum's counsel stated at oral argument
735
A
In holding Suitum's claim to be unripe, the Ninth Circuit agreed
with the agency's argument that Suitum had failed to obtain a final
and authoritative decision from the agency sufficient to satisfy
the first prong of
Williamson County, supra. Although it is
unclear whether the agency still urges precisely that position
before this Court, see,
e. g., Brief for Respondent
21 (conceding that "[w]e know the full extent of the regulation's
impact in restricting petitioner's development of her own land"),
we think it important to emphasize that the rationale adopted in
the decision under review is unsupported by our precedents.
Agins v.
City of Tiburon, 447 U. S. 255 (1980), is
the first case in which this Court employed a notion of ripeness in
declining to reach the merits of an as-applied regulatory takings
claim.9 In
Agins, the landowners who challenged zon-
that "the position of the Tahoe Regional Planning Agency is that
they do not ... have provisions for paying just compensation," Tr.
of Oral Arg. 4, thus suggesting that the agency is not subject to
inverse condemnation proceedings, and the agency's counsel did not
disagree. Suitum's position therefore appears to be that the sole
remedy against the agency for a taking without just compensation is
a § 1983 suit for damages, such as she has brought here. Cf.
Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional
Planning Agency, 911 F.2d
1331, 1341-1342
(CA9 1990). We leave this matter to the
Court of Appeals on remand.
9Two years earlier, in
Penn Central Transp. Co. v.
New
York City, 438 U. S. 104 (1978), we reached the merits of Penn
Central's claim that the New York City Landmarks Preservation
Commission's denial of permission to construct an office building
on top of Grand Central Terminal was a taking, despite our
observation that
"it simply cannot be maintained, on this record, that appellants
have been prohibited from occupying
any portion of the
airspace above the Terminal. While the [City's] actions in denying
applications to construct an office building in excess of 50
stories above the Terminal may indicate that it will refuse to
issue a certificate of appropriateness for any comparably sized
structure, ... [t]he [City has] emphasized that whether any
construction would be allowed depended upon whether the proposed
addition 'would harmonize in scale, material, and character with
[the Termi-
736
ing ordinances restricting the number of houses they could build
on their property sued without seeking approval for any particular
development on their land. We held that the only issue justiciable
at that point was whether mere enactment of the statute amounted to
a taking.lO
Id., at 260. Without employing the term
"ripeness," the Court explained that because the owners "ha[d] not
submitted a plan for development of their property as the
[challenged] ordinances permit[ted], there [was] as yet no concrete
controversy regarding the application of the specific zoning
provisions."
Ibid.
The following Term,
Hodel v.
Virginia Surface
Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981),
toughened our nascent ripeness requirement. There, coal producers
and landowners challenged the enactment of the Surface Mining
Control and Reclamation Act of 1977, 30 U. S. C. § 1201
et
seq., as a taking of their property. As in
Agins, we
concluded that an as-applied challenge was unripe, reasoning that
"[t]here is no indication in the record that appellees ha[d]
availed themselves of the opportunities provided by the Act to
obtain administrative relief by requesting ... a variance from the
[applicable provisions of the Act]," 452 U. S., at
297.11
Hodel thus held that where the regulatory regime
nal].' Since appellants have not sought approval for the
construction of a smaller structure, we do not know that appellants
will be denied any use of any portion of the airspace above the
Terminal."
Id., at 136-137 (citation omitted).
10 Such "facial" challenges to regulation are generally ripe the
moment the challenged regulation or ordinance is passed, but face
an "uphill battle,"
Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 495
(1987), since it is difficult to demonstrate that "'mere
enactment'" of a piece of legislation "deprived [the owner] of
economically viable use of [his] property."
Hodel v.
Virginia Surface Mining &
Reclamation Assn.,
Inc., 452 U. S.
264, 297 (1981). Suitum does not purport to challenge the
agency's regulations on their face.
11 As in
Agins, we found the
Hodel plaintiffs'
"facial" takings challenge to be ripe, but ruled it out on the
merits. 452 U. S., at 295-297.
737
offers the possibility of a variance from its facial
requirements, a landowner must go beyond submitting a plan for
development and actually seek such a variance to ripen his
claim.
Williamson County Regional Planning Comm'n v.
Hamilton
Bank of Johnson City, 473 U. S. 172 (1985),
confirmed
Hodel's holding. In
Williamson County, a
developer's plan to build a residential complex was rejected by the
local planning commission as inconsistent with zoning ordinances
and subdivision regulations in eight different respects. This Court
acknowledged that "[r]espondent ha[d] submitted a plan for
developing its property, and thus ha[d] passed beyond the
Agins threshold," 473 U. S., at 187, but nonetheless held
the takings challenge unripe, reasoning that "among the factors of
particular significance in the [takings] inquiry are the economic
impact of the challenged action and the extent to which it
interferes with reasonable investment-backed expectations,"
id., at 191, "factors [that] simply cannot be evaluated
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,"
ibid. Thus, a developer
must at least "resort to the procedure for obtaining variances ...
[and obtain] a conclusive determination by the Commission whether
it would allow" the proposed development,
id., at 193, in
order to ripen its takings claim.
MacDonald, Sommer &
Frates v.
Yolo
County, 477 U. S.
340 (1986), reaffirmed
Williamson County's requirement
of a final agency position. In
MacDonald, a developer
purchased property and presented a tentative subdivision plan to
the local planning commission. After the commission treated the
proposal as inconsistent with the zoning regulations in several
respects, the developer immediately filed suit. Without even
relying on the character of the dry run in the submission of a
merely tentative plan, we emphasized that in the course of
litigation two state courts had given opinions that development of
the property was possible
738
under the regulations in question, flatly contrary to the
developer's conclusory allegation that the regulations required him
to provide a greenbelt as a public gratuity. See 477 U. S., at
345-347. Hence, we held the claim unripe under the rationale of
Williamson County: "'the effect [of] the Commission's
application of the zoning ordinance ... on the value of
respondent's property ... cannot be measured until a final decision
is made as to how the regulations will be applied to [the
developer's] property.'"
MacDonald, supra, at 349 (quoting
Williamson County, supra, at 199-200).
Leaving aside the question of how definitive a local zoning
decision must be to satisfy
Williamson County's demand for
finality,12 two points about the requirement are clear: it applies
to decisions about how a takings plaintiff's own land may be used,
and it responds to the high degree of discretion characteristically
possessed by land-use boards in softening the strictures of the
general regulations they administer. As the Court said in
MacDonald, "local agencies charged with administering
regulations governing property development are singularly flexible
institutions; what they take with the one hand they may give back
with the other." 477 U. S., at 350. When such flexibility or
discretion may be brought to bear on the permissible use of
property as singular as a
12 MacDonald suggested that the
Williamson County
"final decision" requirement might sometimes require multiple
proposals or variance applications before a landowner's case will
be considered ripe. We wrote, for example, that "[r]ejection of
exceedingly grandiose development plans does not logically imply
that less ambitious plans will receive similarly unfavorable
reviews." 477 U. S., at 353, n. 9; compare
Williamson
County, 473 U. S., at 191 (applicant must obtain final
definitive position on how regulations will be applied to the land
in question), with
id., at 193 (applicant must obtain
conclusive determination whether specific proposed development will
be permitted).
Amici the Mayhews et al. urge us to establish
a rule that a takings plaintiff need only make a single proposal
and a single request for a variance to ensure the ripeness of his
claim. Brief for Mayhews et al. as
Amici Curiae 22. That
issue is not presented in this case.
739
parcel of land, a sound judgment about what use will be allowed
simply cannot be made by asking whether a parcel's characteristics
or a proposal's details facially conform to the terms of the
general use regulations.
The demand for finality is satisfied by Suitum's claim, however,
there being no question here about how the "regulations at issue
[apply] to the particular land in question."
Williamson County,
supra, at 191. It is undisputed that the agency "has finally
determined that petitioner's land lies entirely within an SEZ,"
Brief for Respondent 21, and that it may therefore permit "[n]o
additional land coverage or other permanent land disturbance" on
the parcel, TRP A Code § 20.4. Because the agency has no discretion
to exercise over Suitum's right to use her land, no occasion exists
for applying
Williamson County's requirement that a
landowner take steps to obtain a final decision about the use that
will be permitted on a particular parcel. The parties, of course,
contest the relevance of the TDR's to the issue of whether a taking
has occurred, but resolution of that legal issue will require no
further agency action of the sort demanded by
Williamson
County.
B
The agency nonetheless argued below, and the lower courts
agreed, see
supra, at 732-733, that there remains a "final
decision" for the agency to make: action on a possible application
by Suitum to transfer the TDR's to which she is indisputably
entitled. This is not, however, the type of "final decision"
required by our
Williamson County precedents. Those
precedents addressed the virtual impossibility of determining what
development will be permitted on a particular lot of land when its
use is subject to the decision of a regulatory body invested with
great discretion, which it has not yet even been asked to exercise.
No such question is presented here. The parties agree on the
particular TDR's to which Suitum is entitled, and no discretionary
decision
740
must be made by any agency official for her to obtain them or to
offer them for sale. The only decision left to the agency is
approval of a particular transfer of TDR's to make certain that a
given potential buyer may lawfully use them. But whether a
particular sale of TDR's may be completed is quite different from
whether TDR's are salable; so long as the particular buyer is not
the only person who can lawfully buy, the rights would not be
rendered unsalable even if the agency were to make a discretionary
decision to kill a particular sale. And the class of buyers is not
even arguably so limited here, where there is no question so far as
the law is concerned that TDR's may be bought and used for the
benefit of all sorts of land parcels and lots.
C
The agency's argument that Suitum's case is not ripe because no
"'values attributable to [Suitum's TDR's] are known,'" Brief for
Respondent 23 (quoting No. CV-N-91040-ECR (D. Nev., Mar. 30, 1994),
App. to Pet. for Cert. C-4, is just a variation on the preceding
position, and fares no better. First, as to Suitum's rights to
receive TDR's that she may later sell, we have already noted that
little or no uncertainty remains. Although the value of a
Residential Development Right may well be greater if it is offered
together with a Residential Allocation, and although Suitum must
still enter the lottery for the latter, there is no discretionary
decision to be made in determining whether she will get one; in
fact, the probability of her getting one is "100 percent" according
to the agency, see Tr. of Oral Arg. 40, since there are fewer
applications than available allocations, see
id., at 39-40.
But even if that were not the case, as it probably will not always
be, it would be unreasonable to require Suitum to enter the drawing
in order to ripen her suit. The agency does not, and surely could
not, maintain that if the odds of success in the allocation lottery
were low,
741
Suitum's takings claim could be kept at bay from year to year
until she actually won the drawing; such a rule would allow any
local authority to stultify the Fifth Amendment's guarantee.
Rather, in such circumstances, the value attributable to the
allocation Suitum might or might not receive in the drawing would
simply be discounted to reflect the mathematicallikelihood of her
obtaining one.
Second, as to Suitum's right to transfer her TDR's, the only
contingency apart from private market demand turns on the right of
the agency to deny approval for a specific transfer on grounds that
the buyer's use of the TDR's would violate the terms of the scheme
or other local land-use regulation, and the right of a local
regulatory body to deny transfer approval for the latter reason.
See TRP A Code §§ 20.3.C, 34.2, 34.3. But even if these potential
bars based on a buyer's intended use of TDR's should turn out to
involve the same degree of discretion assumed in the
Williamson County ripeness requirement, that
discretion still would not render the value of the TDR's nearly as
unknowable as the chances of particular development being permitted
on a particular parcel in the absence of a zoning board decision
that could quite lawfully be either yes or no. While a particular
sale is subject to approval, salability is not, and the agency's
own position assumes that there are many potential, lawful buyers
for Suitum's TDR's, whose receipt of those rights would
unquestionably be approved.
The valuation of Suitum's TDR's is therefore simply an issue of
fact about possible market prices, and one on which the District
Court had considerable evidence before it, see
supra, at
731-732.13 Of course, as the agency appears to be saying, see,
e. g., Brief for Respondent 22-23, the very best
evidence of the value of Suitum's TD R's might be their actual
13 Moreover, the court may, of course, request additional
briefing on this subject if necessary, and a trial could be held if
the issue cannot be decided on summary judgment.
742
selling price (assuming, of course, that the sale were made in
good faith and at arm's length). But similar determinations of
market value are routinely made in judicial proceedings without the
benefit of a market transaction in the subject property. See,
e. g., United States v. 819.98
Acres of
Land, More or Less, Located in Wasatch and Summit Counties,
78 F.3d
1468, 1469-1470 (CAlO 1996) (upholding valuation of condemned
land based on expert testimony relating to comparable sales and
discounted cash flow);
United States v.
L. E. Cooke
Co., 991 F.2d
336, 338-339 (CA6 1993) (same with respect to valuation of
mineral rights leases); see also 5 J. Sackman, Nichols' Law of
Eminent Domain § 23-01, p. 23-6 (rev. 3d ed. 1997) ("[I]t is well
established that the value of ... land taken or injured by the
exercise of the power of eminent domain may be shown by opinion
evidence"); see generally 4
id., § 12.02 (discussing
establishment of market value of condemned land). While it is true
that market value may be hard to calculate without a regular trade
in TDR's, if Suitum is ready to proceed in spite of this
difficulty, ripeness doctrine does not block her. In fact, the
reason for the agency's objection is probably a concern that
without much market experience in sales of TDR's, their market
values will get low estimates. But this is simply one of the risks
of regulatory pioneering, and the pioneer here is the agency, not
Suitum.
III
Finally, the agency argues (for the first time, before this
Court) that Suitum's claim is unripe under the "fitness for review"
requirement of
Abbott Laboratories v.
Gardner, 387 U.
S. 136 (1967).
Abbott Laboratories arose on a petition under
the Administrative Procedure Act (APA), 5 U. S. C. §§ 701-704 (1964
ed., Supp. II), by a group of drug manufacturers seeking review of
a labeling regulation promulgated by the Commissioner of Food and
Drugs (FDA) but not yet the subject of any enforcement action
against the manufacturers. The petitioners claimed that the FDA
lacked statu-
743
tory authority to impose the new labeling requirement; the FDA
countered that the claim was not ripe for judicial review for want
of any proceedings to enforce the regulation.
The Court dealt with ripeness under a two-pronged test:
"Without undertaking to survey the intricacies of the ripeness
doctrine it is fair to say that its basic rationale is to prevent
the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized
and its effects felt in a concrete way by the challenging parties.
The problem is best seen in a twofold aspect, requiring us to
evaluate both the fitness of the issues for judicial decision and
the hardship to the parties of withholding court consideration."
387 U. S., at 148-149 (footnote omitted).
Under the "fitness for review" prong, we first noted that the
FDA's adoption of the labeling regulation was "final agency action"
within the meaning of § 10 of the AP A, 5 U. S. C. § 704, and then
rejected the Government's argument that review must await
enforcement. 387 U. S., at 149-152. We reasoned that "the impact of
the regulations upon the petitioners is sufficiently direct and
immediate as to render the issue appropriate for judicial review at
this stage" because promulgation of the regulations "puts
petitioners in a dilemma": "Either they must comply with the
[labeling] requirement and incur the costs of changing over their
promotional material and labeling or they must follow their present
course and risk prosecution."
Id., at 152 (internal
quotation marks omitted). Similarly, the immediate impact of the
regulation on the manufacturers satisfied the "hardship" prong:
"Where the legal issue presented is fit for judicial resolution,
and where a regulation requires an immediate and significant change
in the plaintiffs' conduct of their affairs with serious
744
penalties attached to noncompliance," hardship has been
demonstrated and "access to the courts ... must be permitted."
Id., at 153.
Abbott Laboratories is not on point. The drug companies
in that case were challenging the validity of a regulation as
beyond the scope of the FDA's authority. Whatever the arguable
merit of the FDA's position on ripeness may have been, it rested on
the fact that the manufacturers could have precipitated their
challenge (if they had wanted) by violating the regulation and
defending any subsequent prosecution by placing the regulation's
validity in question. Suitum is in a different position from the
manufacturers. She does not challenge the validity of the agency's
regulations; her litigating position assumes that the agency may
validly bar her land development just as all agree it has actually
done, and her only challenge to the TDR's raises a question about
their value, not about the lawfulness of issuing them. Suitum seeks
not to be free of the regulations but to be paid for their
consequences, and even if for some odd reason she had decided to
bring things to a head by building without a permit, a § 1983
action for money would not be a defense to an equity proceeding to
enjoin development. Indeed, to the extent that
Abbott
Laboratories is in any sense instructive in the disposition of
the case before us, it cuts directly against the agency: Suitum is
just as definitively barred from taking any affirmative step to
develop her land as the drug companies were bound to take
affirmative steps to change their labels. The only discretionary
step left to an agency in either situation is enforcement, not
determining applicability.
***
Because we find that Suitum has received a "final decision"
consistent with
Williamson County's ripeness requirement, we
vacate the judgment of the Court of Appeals and remand for further
proceedings consistent with this opinion.
It is so ordered.
745
JUSTICE SCALIA, with whom JUSTICE O'CONNOR and JUSTICE THOMAS
join, concurring in part and concurring in the judgment.
I concur in the judgment of the Court, and join its opinion
except for Parts II-B and II-C. Those sections consider whether the
Tahoe Regional Planning Agency (TRP A) must have reached a final
decision regarding Suitum's ability to sell her Transferable
Development Rights (TDRs), and whether the value of Suitum's TDRs
must be known. That discussion presumes that the answers to those
questions may be relevant to the issue presented at this
preliminary stage of the present case: whether Suitum's takings
claim is ripe for judicial review under the "final decision"
requirement. In my view they are not relevant to that issue, and
the Court's discussion is beside the point.
To describe the nature of the "final decision" inquiry, the
Court's opinion quotes only the vague language of
Williamson
County Regional Planning Comm'n v.
Hamilton Bank of Johnson
City, 473 U. S.
172 (1985), that there must be a "final decision regarding the
application of the [challenged] regulations to the property at
issue,"
id., at 186, quoted
ante, at 734, and of
MacDonald, Sommer &
Frates v.
Yolo County,
477 U. S. 340
(1986), that "[a] court cannot determine whether a regulation has
gone 'too far' unless it knows how far the regulation goes,"
id., at 348, quoted
ante, at 734. Unmentioned in the
opinion are other, more specific, statements in those very cases
(and elsewhere) which display quite clearly that the quoted
generalizations (and the "final decision" inquiry) have nothing to
do with TDRs. Later in
Williamson County, for example, we
explained that the purpose of the "final decision" requirement was
to ensure that the Court can ascertain "how [the takings plaintiff]
will be allowed to develop its property,"
Williamson County,
supra, at 190. And on the very same page from which the Court
extracted the vague statement,
MacDonald says quite
precisely that the essential function of the "final decision"
re-
746
quirement is to ensure that there has been a "determination of
the type and intensity of development legally permitted on the
subject property,"
MacDonald, supra, at 348; and says later
that "[o]ur cases uniformly reflect an insistence on knowing the
nature and extent of permitted development before adjudicating the
constitutionality of the regulations that purport to limit it," 477
U. S., at 351. The Court fails even to mention, in its otherwise
encyclopedic description of the development of the "final decision"
requirement, the most recent of our opinions addressing the
subject,
Lucas v.
South Carolina Coastal Council,
505 U. S. 1003
(1992), in which we relied exclusively on these more precise
formulations and did not mention the vague language quoted by the
Court today, see
id., at 1011.
The focus of the "final decision" inquiry is on ascertaining the
extent of the governmental restriction on land use, not what the
government has given the landowner in exchange for that
restriction. When our cases say, as the Court explains
ante,
at 734, that without a "final decision" it is impossible to know
whether the regulation "goes too far,"
Pennsylvania Coal Co.
v.
Mahon, 260
U. S. 393, 415 (1922), they mean "goes too far in restricting
the profitable use of the land," not "goes not far enough in
providing compensation for restricting the profitable use of the
land." The latter pertains not to whether there has been a taking,
but to the subsequent question of whether, if so, there has been
just compensation.
In all of the cases discussed in Part II-A of the Court's
opinion bearing on the question whether a "final decision"
requisite to a takings claim had been made, the point at issue was
whether the government had finally determined the permissible
use of the land. In
Agins v.
City of Tiburon,
447 U. S. 255
(1980), discussed
ante, at 735-736, the government had not
yet determined how many houses the challenged zoning ordinance
would permit on the plaintiff's property. In
Hodel v.
Virginia Surface Mining &
Reclamation Assn.,
747
Inc., 452
U. S. 264 (1981), discussed
ante, at 736-737, the
government had not yet determined whether a variance from the
land-use restrictions of the Surface Mining Control and Reclamation
Act of 1977 would be allowed. In
Williamson County, supra,
discussed
ante, at 737, the government had not yet
determined whether it would approve the developer's plan to build a
residential complex. And in
MacDonald, supra, discussed
ante, at 737-738, the government had again not yet
determined whether the developer's subdivision plan would be
approved.
TDRs, of course, have nothing to do with the use or development
of the land to which they are (by regulatory decree) "attached."
The right to use and develop one's own land is quite distinct from
the right to confer upon someone else an increased power to use and
develop
his land. The latter is valuable, to be sure, but it
is a
new right conferred upon the landowner in exchange for
the taking, rather than a
reduction of the taking. In
essence, the TDR permits the landowner whose right to use and
develop his property has been restricted or extinguished to extract
money from others. Just as a cash payment from the government would
not relate to whether the regulation "goes too far" (i.
e.,
restricts use of the land so severely as to constitute a taking),
but rather to whether there has been adequate compensation for the
taking; and just as a chit or coupon from the government,
redeemable by and hence marketable to third parties, would relate
not to the question of taking but to the question of compensation;
so also the marketable TDR, a peculiar type of chit which enables a
third party not to get cash from the government but to use his land
in ways the government would otherwise not permit, relates not to
taking but to compensation. It has no bearing upon whether there
has been a "final decision" concerning the extent to which the
plaintiff's land use has been constrained.
Putting TDRs on the taking rather than the justcompensation side
of the equation (as the Ninth Circuit did
748
below) is a clever, albeit transparent, device that seeks to
take advantage of a peculiarity of our Takings-Clause
jurisprudence: Whereas once there
is a taking, the
Constitution requires just (i.
e., full) compensation, see,
e. g., United States v.
564.5.1" Acres of Monroe and Pike
County Land, 441
U. S. 506, 510 (1979) (owner must be put" 'in as good a
position pecuniarily as if his property had not been taken' ");
Monongahela Nav. Co. v.
United States, 148 U. S. 312, 326 (1893)
("[T]he compensation must be a full and perfect equivalent for the
property taken"), a regulatory taking generally does not
occur so long as the land retains substantial (albeit not
its full) value, see,
e. g., Penn Central Transp. Co. v.
New York City, 438 U. S. 104 (1978). If
money that the governmentregulator gives to the landowner can be
counted on the question of whether there
is a taking
(causing the courts to say that the land retains substantial value,
and has thus not been taken), rather than on the question of
whether the compensation for the taking is adequate, the government
can get away with paying much less. That is all that is going on
here. It would be too obvious, of course, for the government simply
to say "although your land is regulated, our land-use scheme
entitles you to a government payment of $1,000." That is patently
compensation and not retention of land value. It would be a little
better to say "under our land-use scheme, TDRs are attached to
every parcel, and if the parcel is regulated its TDR can be cashed
in with the government for $1,000." But that still looks too much
like compensation. The cleverness of the scheme before us here is
that it causes the payment to come, not from the government
but
from third parties-whom the government reimburses for their
outlay by granting them (as the TDRs promise) a variance from
otherwise applicable land-use restrictions.
Respondent maintains that
Penn Central supports the
conclusion that TDRs are relevant to the question whether there has
been a taking. In
Penn Central we remarked that because the
rights to develop the airspace above Grand Cen-
749
tral Terminal had been made transferable to other parcels in the
vicinity (some of which the owners of the terminal themselves
owned), it was "not literally accurate to say that [the owners]
have been denied
all use of [their] pre-existing air
rights"; and that even if the TDRs were inadequate to constitute
"just compensation" if a taking had occurred, they could
nonetheless "be taken into account in considering the impact of
regulation."
Id., at 137 (emphasis in original). This
analysis can be distinguished from the case before us on the ground
that it was applied to landowners who owned at least eight nearby
parcels, some immediately adjacent to the terminal, that could be
benefited by the TDRs. See
id., at 115. The relevant land,
it could be said, was the aggregation of the owners' parcels
subject to the regulation (or at least the contiguous parcels); and
the use of that land, as a whole, had not been diminished. It is
for that reason that the TDRs affected "the impact of the
regulation." This analysis is supported by the concluding clause of
the opinion, which says that the restrictions "not only permit
reasonable beneficial use of the landmark site but also afford
appellants opportunities further to enhance not only the Terminal
site proper but also other properties."
Id., at 138. If
Penn Central's one-paragraph expedition into the realm of
TDRs were not distinguishable in this fashion, it would deserve to
be overruled. Considering in the takings calculus the
market value of TDRs is contrary to the import of a
whole series of cases, before and since, which make clear that the
relevant issue is the extent to which use or development of the
land has been restricted. Indeed, it is contrary to the whole
principle that land-use regulation, if severe enough, can
constitute a taking which must be
fully compensated.
I do not mean to suggest that there is anything undesirable or
devious about TDRs themselves. To the contrary, TDRs can serve a
commendable purpose in mitigating the economic loss suffered by an
individual whose property use is restricted, and property value
diminished, but not so sub-
750
stantially as to produce a compensable taking. They may also
form a proper part, or indeed the entirety, of the full
compensation accorded a landowner when his property
is
taken. Accord,
Penn Central, supra, at 152 (REHNQUIST, J.,
dissenting) (noting that Penn Central had been "offered substantial
amounts" for its TDRs and suggesting the appropriateness of a
remand for a determination of whether the TDRs are valuable enough
to constitute full compensation). I suggest only that the relevance
of TDRs is limited to the compensation side of the takings
analysis, and that taking them into account in determining whether
a taking has occurred will render much of our regulatory takings
jurisprudence a nullity, see Comment, Environmental Interest Groups
and Land Regulation: Avoiding the Clutches of
Lucas v. South
Carolina Coastal Council, 48 U. Miami L. Rev. 1179, 1212
(1994).
In sum, I would resolve the question of whether there has been a
"final decision" in this case by looking only to the fixing of
petitioner's rights to use and develop her land. There has never
been any dispute over whether that has occurred. Before bringing
the present suit, petitioner applied for permission to build a
house on her lot, and was denied permission to do so on the basis
of TRP A's determination that her property is located within a
"Stream Environment Zone"-a designation that carries the
consequence that "[n]o additional land coverage or other permanent
land disturbance shall be permitted," TRPA Code
§20A.
Respondent in fact concedes that "[w]e know the full extent of the
regulation's impact in restricting petitioner's development of her
own land," Brief for Respondent 21. That is all we need to know to
conclude that the "final decision" requirement has been met.
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