OCTOBER TERM, 1991
Syllabus
YEE ET AL.
v. CITY OF ESCONDIDO, CALIFORNIA
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FOURTH
APPELLATE DISTRICT
No. 90-1947. Argued January 22, 1992-Decided April 1, 1992
The Fifth Amendment's Takings Clause generally requires just
compensation where the government authorizes a physical occupation
of property. But where the government merely regulates the
property's use, compensation is required only if considerations
such as the regulation's purpose or the extent to which it deprives
the owner of the property's economic use suggests that the
regulation has unfairly singled out the property owner to bear a
burden that should be borne by the public as a whole. Petitioners,
mobile home park owners in respondent Escondido, California, rent
pads of land to mobile home owners. When the homes are sold, the
new owners generally continue to rent the pads. Under the
California Mobilehome Residency Law, the bases upon which a park
owner may terminate a mobile home owner's tenancy are limited to,
inter alia, nonpayment of rent and the park owner's desire
to change the use of his land. The park owner may not require the
removal of a mobile home when it is sold and may neither charge a
transfer fee for the sale nor disapprove of a purchaser who is able
to pay rent. The state law does not limit the rent the park owner
may charge, but Escondido has a rent control ordinance setting
mobile home rents back to their 1986 levels and prohibiting rent
increases without the city council's approval. The Superior Court
dismissed lawsuits filed by petitioners and others challenging the
ordinance, rejecting the argument that the ordinance effected a
physical taking by depriving park owners of all use and occupancy
of their property and granting to their tenants, and their tenants'
successors, the right to physically permanently occupy and use the
property. The Court of Appeal affirmed.
Held:
1. The rent control ordinance does not authorize an unwanted
physical occupation of petitioners' property and thus does not
amount to a
per se taking. Petitioners' argument-that the
rent control ordinance authorizes a physical taking because,
coupled with the state law's restrictions, it increases a mobile
home's value by giving the homeowner the right to occupy the pad
indefinitely at a submarket rent-is unpersuasive. The government
effects a physical taking only where it
requires the
landowner to submit to the physical occupation of his land. Here,
petitioners have voluntarily rented their land to mobile home
520
Syllabus
owners and are not required to continue to do so by either the
city or the State. On their face, the laws at issue merely regulate
petitioners'
use of their land by regulating the
relationship between landlord and tenant. Any transfer of wealth
from park owners to incumbent mobile home owners in the form of
submarket rent does not itself convert regulation into physical
invasion. Additional contentions made by petitioners-that the
ordinance benefits current mobile home owners but not future
owners, who must purchase the homes at premiums resulting from the
homes' increased value, and that the ordinance deprives petitioners
of the ability to choose their incoming tenants-might have some
bearing on whether the ordinance causes a regulatory taking, but
have nothing to do with whether it causes a physical taking.
Moreover, the footnote in
Loretto v.
Teleprompter
Manhattan CATV Corp., 458 U. S. 419, 439, n.
17-that a physical taking claim cannot be defeated by an argument
that a landlord can avoid a statute's restrictions by ceasing to
rent his property, because his ability to rent may not be
conditioned on forfeiting the right to compensation for a physical
occupation-has no relevance here, where there has been no physical
taking. Since petitioners have made no attempt to change how their
land is used, this case also presents no occasion to consider
whether the statute, as applied, prevents them from making a
change. Pp. 526-532.
2. Petitioners' claim that the ordinance constitutes a denial of
substantive due process is not properly before this Court because
it was not raised below or addressed by the state courts. The
question whether this Court's customary refusal to consider claims
not raised or addressed below is a jurisdictional or prudential
rule need not be resolved here, because even if the rule were
prudential, it would be adhered to in this case. Pp. 532-533.
3. Also improperly before this Court is petitioners' claim that
the ordinance constitutes a regulatory taking. The regulatory
taking claim is ripe for review; and the fact that it was not
raised below does not mean that it could not be properly raised
before this Court, since once petitioners properly raised a taking
claim, they could have formulated, in this Court, any argument they
liked in support of that claim. N onetheless, the claim will not be
considered because, under this Court's Rule 14.1(a), only questions
set forth, or fairly included, in the petition for certiorari are
considered. Rule 14.1(a) is prudential, but is disregarded only
where reasons of urgency or economy suggest the need to address the
unpresented question in the case under consideration. The Rule
provides the respondent with notice of the grounds on which
certiorari is sought, thus relieving him of the expense of
unnecessary litigation on the merits and the burden of opposing
certiorari on unpresented questions. It also assists the Court in
selecting the cases in which certiorari
521
will be granted. By forcing the parties to focus on the
questions the Court views as particularly important, the Rule
enables the Court to use its resources efficiently. Petitioners'
question presented was whether the lower court erred in finding no
physical taking, and the regulatory taking claim is related to, but
not fairly included in, that question. Thus, petitioners must
overcome the very heavy presumption against consideration of the
regulatory taking claim, which they have not done. While that claim
is important, lower courts have not reached conflicting results on
the claim as they have on the physical taking claim. Prudence also
dictates awaiting a case in which the issue was fully litigated
below, to have the benefit of developed arguments and lower court
opinions squarely addressing the question. Thus, the regulatory
taking issue should be left for the California courts to address in
the first instance. Pp. 533-538.
224 Cal. App. 3d 1349,274 Cal. Rptr. 551, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, KENNEDY, and THOMAS,
JJ., joined. BLACKMUN, J.,
post, p. 539, and SOUTER, J.,
post, p. 539, filed opinions concurring in the judgment.
Robert J. Jagiello argued the cause for
petitioners. With him on the briefs was
Robert H. Bork.
Carter G. Phillips argued the cause for respondent. With him on
the brief were Rex E. Lee, Donald R. Lincoln, Linda B. Reich, David
R. Chapman, and Jeffrey R. Epp.
*
*Briefs of
amici curiae urging reversal were filed for
Action in Santa Monica by
Brenda Powers Barnes; for the
Apartment Association of Greater Los Angeles by
Stephen L.
Jones; for the California Association of Realtors et al. by
John E. Mueller, Marguerite Mary Leoni, Laurene K. Janik and
William M. Pfeiffer; for the Florida Manufactured Housing
Association, Inc., by
Jack M. Skelding, Jr.; for the
Institute of Real Estate Management of the National Association of
Realtors by
Jonathan T. Howe, Terrence Hutton, and
Henry
M. Schaffer; for the Manufactured Housing Educational Trusts of
Los Angeles County, California, et al. by
Jerrold A. Fadem,
George Kimball, Charles S.
Treat, and
Kim N A.
Richards; for the Manufactured Housing Educational Trust of
Santa Clara County by
Robert K. Best; for the Pacific Legal
Foundation by
Ronald A. Zumbrun, Edward J. Connor,
Jr., and
Timothy A. Bittle; for the Rent Stabilization
Association of New York City, Inc., et al. by
Erwin N
Griswold and
Stephen J. Goodman; for the
Washington Legal Foundation et al. by
Daniel
522
JUSTICE O'CONNOR delivered the opinion of the Court. The Takings
Clause of the Fifth Amendment provides: "[N]or shall private
property be taken for public use, without just compensation." Most
of our cases interpreting the Clause fall within two distinct
classes. Where the government authorizes a physical occupation of
property (or actually takes title), the Takings Clause generally
requires compensation. See,
e. g., Loretto v.
Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426
(1982). But where the government merely regulates the use of
property, compensation
J. Popeo, Paul D. Kamenar, and Jonathan K. Van Patten;
and for the Western Mobilehome Association by Michael A. Willemsen
and David Spangenberg.
Briefs of amici curiae urging affirmance were filed for the city
of San Jose et al. by Joan R. Gallo, George Rios, Manuela
Albuquerque, Stanley C. Hatch, Glenn R. Watson, William Camil, Lynn
R. McDougal, Scott H. Howard, David
J. Erwin, Robert L.
Kress, Charles
J. Williams, David H. Hirsch, Steven F. Nord,
Marc G. Hynes, John L. Cook, Daniel S. Hentschke, Gary L. Gillig,
Jean Leonard Harris, David E. Schricker, Michael F. Dean, James
Penman, Peter D. Bulens, John W Witt, Louise H. Renne, James P.
Botz, Mark G. Sellers, Robert B. Ewing, Angil P. Morris, James G.
Rourke, and Thomas Haas; for the American Association of Retired
Persons by Steven S. Zalesnick and Joan Wise; for the city of Santa
Monica et al. by Robert M. Myers, Joseph Lawrence, Martin Tachiki,
Barry Rosenbaum, David Pettit, Karl M. Manheim, and Shane Stark;
for the Golden State Mobilhome Owners League, Inc., et al. by Fran
M. Layton, Joseph L. Sax, and Bruce E. Stanton; for the
International City/County Management Association et al. by Richard
Ruda, Andrew G. Schultz, Edward Ricco, Charles K. Purcell, and
James P. Bieg; for the National Trust for Historic Preservation in
the United States et al. by Lloyd N. Cutler, Louis R. Cohen, David
R. Johnson, Jerold S. Kayden, and Elizabeth S. Merritt; and for the
New Jersey Department of the Public Advocate by David
Ben-Asher.
Briefs of
amici curiae were filed for the Arizona Mobile
Housing Association, Inc., by
Michael A. Parham; for the
California Mobile Home Parkowners Alliance by
Michael M.
Berger and
Joel G.
Hirsch; for the Escondido
Mobilehome Owners' Positive Action Committee by
Richard I.
Singer and
Elvi J. Olesen; and for the
Manufactured Housing Association in New Jersey, Inc., by
Christopher J. Hanlon and
Henry N.
Portner.
523
is required only if considerations such as the purpose of the
regulation or the extent to which it deprives the owner of the
economic use of the property suggest that the regulation has
unfairly singled out the property owner to bear a burden that
should be borne by the public as a whole. See,
e. g.,
Penn Central Transportation Co. v.
New York City,
438 U. S. 104,
123-125 (1978). The first category of cases requires courts to
apply a clear rule; the second necessarily entails complex factual
assessments of the purposes and economic effects of government
actions.
Petitioners own mobile home parks in Escondido, California. They
contend that a local rent control ordinance, when viewed against
the backdrop of California's Mobilehome Residency Law, amounts to a
physical occupation of their property, entitling them to
compensation under the first category of cases discussed above.
I
The term "mobile home" is somewhat misleading. Mobile homes are
largely immobile as a practical matter, because the cost of moving
one is often a significant fraction of the value of the mobile home
itself. They are generally placed permanently in parks; once in
place, only about 1 in every 100 mobile homes is ever moved. Hirsch
& Hirsch, LegalEconomic Analysis of Rent Controls in a Mobile
Home Context: Placement Values and Vacancy Decontrol, 35 UCLA L.
Rev. 399, 405 (1988). A mobile home owner typically rents a plot of
land, called a "pad," from the owner of a mobile home park. The
park owner provides private roads within the park, common
facilities such as washing machines or a swimming pool, and often
utilities. The mobile home owner often invests in site-specific
improvements such as a driveway, steps, walkways, porches, or
landscaping. When the mobile home owner wishes to move, the mobile
home is usually sold in place, and the purchaser continues to rent
the pad on which the mobile home is located.
524
In 1978, California enacted its Mobilehome Residency Law, Cal.
Civ. Code Ann. § 798 (West 1982 and Supp. 1991). The legislature
found "that, because of the high cost of moving mobilehomes, the
potential for damage resulting therefrom, the requirements relating
to the installation of mobilehomes, and the cost of landscaping or
lot preparation, it is necessary that the owners of mobilehomes
occupied within mobilehome parks be provided with the unique
protection from actual or constructive eviction afforded by the
provisions of this chapter." § 798.55(a).
The Mobilehome Residency Law limits the bases upon which a park
owner may terminate a mobile home owner's tenancy. These include
the nonpayment of rent, the mobile home owner's violation of law or
park rules, and the park owner's desire to change the use of his
land. § 798.56. While a rental agreement is in effect, however, the
park owner generally may not require the removal of a mobile home
when it is sold. § 798.73. The park owner may neither charge a
transfer fee for the sale, § 798.72, nor disapprove of the
purchaser, provided that the purchaser has the ability to pay the
rent, § 798.74. The Mobilehome Residency Law contains a number of
other detailed provisions, but none limit the rent the park owner
may charge.
In the wake of the Mobilehome Residency Law, various communities
in California adopted mobile home rent control ordinances. See
Hirsch & Hirsch,
supra, at 408-411. The voters of
Escondido did the same in 1988 by approving Proposition K, the rent
control ordinance challenged here. The ordinance sets rents back to
their 1986 levels and prohibits rent increases without the approval
of the city council. Park owners may apply to the council for rent
increases at any time. The council must approve any increases it
determines to be "just, fair and reasonable," after considering the
following nonexclusive list of factors: (1) changes in the Consumer
Price Index; (2) the rent charged for comparable mobile home pads
in Escondido; (3) the length of time since
525
the last rent increase; (4) the cost of any capital improvements
related to the pad or pads at issue; (5) changes in property taxes;
(6) changes in any rent paid by the park owner for the land; (7)
changes in utility charges; (8) changes in operating and
maintenance expenses; (9) the need for repairs other than for
ordinary wear and tear; (10) the amount and quality of services
provided to the affected tenant; and (11) any lawful existing
lease. Ordinance § 4(g), App.11-12.
Petitioners John and Irene Yee own the Friendly Hills and Sunset
Terrace Mobile Home Parks, both of which are located in the city of
Escondido. A few months after the adoption of Escondido's rent
control ordinance, they filed suit in San Diego County Superior
Court. According to the complaint, "[t]he rent control law has had
the effect of depriving the plaintiffs of all use and occupancy of
[their] real property and granting to the tenants of mobile homes
presently in The Park, as well as the successors in interest of
such tenants, the right to physically permanently occupy and use
the real property of Plaintiff."
Id., at 3, , 6. The Yees
requested damages of $6 million, a declaration that the rent
control ordinance is unconstitutional, and an injunction barring
the ordinance's enforcement.
Id., at 5-6.
In their opposition to the city's demurrer, the Yees relied
almost entirely on
Hall v.
Santa Barbara, 833 F.2d
1270 (CA9 1987), cert. denied, 485 U. S. 940 (1988), which had
held that a similar mobile home rent control ordinance effected a
physical taking under
Loretto v.
Teleprompter Manhattan
CATV Corp., 458
U. S. 419 (1982). The Yees candidly admitted that "in fact, the
Hall decision was used [as] a guide in drafting the present
Complaint." 2 Tr. 318, Points & Authorities in Opposition to
Demurrer 4. The Superior Court nevertheless sustained the city's
demurrer and dismissed the Yees' complaint. App. to Pet. for Cert.
C-42.
The Yees were not alone. Eleven other park owners filed similar
suits against the city shortly afterwards, and all were
526
dismissed. By stipulation, all 12 cases were consolidated for
appeal; the parties agreed that all would be submitted for decision
by the California Court of Appeal on the briefs and oral argument
in the
Yee case.
The Court of Appeal affirmed, in an opinion primarily devoted to
expressing the court's disagreement with the reasoning of
Hall. The court concluded:
"Loretto in no way
suggests that the Escondido ordinance authorizes a permanent
physical occupation of the landlord's property and therefore
constitutes a per se taking." 224 Cal. App. 3d 1349, 1358, 274 Cal.
Rptr. 551, 557 (1990). The California Supreme Court denied review.
App. to Pet. for Cert. B-41.
Eight of the twelve park owners, including the Yees, joined in a
petition for certiorari. We granted certiorari, 502 U. S. 905
(1991), to resolve the conflict between the decision below and
those of two of the Federal Courts of Appeals, in
Hall,
supra, and
Pinewood Estates of Michigan v.
Barnegat
Township Leveling Board, 898 F.2d
347 (CA3 1990).
II
Petitioners do not claim that the ordinary rent control statutes
regulating housing throughout the country violate the Takings
Clause. Brief for Petitioners 7, 10. Cf.
Pennell v.
San
Jose, 485 U. S.
1, 12, n. 6 (1988);
Loretto, supra, at 440. Instead,
their argument is predicated on the unusual economic relationship
between park owners and mobile home owners. Park owners may no
longer set rents or decide who their tenants will be. As a result,
according to petitioners, any reduction in the rent for a mobile
home pad causes a corresponding increase in the value of a mobile
home, because the mobile home owner now owns, in addition to a
mobile home, the right to occupy a pad at a rent below the value
that would be set by the free market. Cf. Hirsch & Hirsch, 35
UCLA L. Rev., at 425. Because under the California Mobilehome
Residency Law the park owner cannot evict a mo-
527
bile home owner or easily convert the property to other uses,
the argument goes, the mobile home owner is effectively a perpetual
tenant of the park, and the increase in the mobile home's value
thus represents the right to occupy a pad at below-market rent
indefinitely. And because the Mobilehome Residency Law permits the
mobile home owner to sell the mobile home in place, the mobile home
owner can receive a premium from the purchaser corresponding to
this increase in value. The amount of this premium is not limited
by the Mobilehome Residency Law or the Escondido ordinance. As a
result, petitioners conclude, the rent control ordinance has
transferred a discrete interest in land-the right to occupy the
land indefinitely at a submarket rent-from the park owner to the
mobile home owner. Petitioners contend that what has been
transferred from park owner to mobile home owner is no less than a
right of physical occupation of the park owner's land.
This argument, while perhaps within the scope of our regulatory
taking cases, cannot be squared easily with our cases on physical
takings. The government effects a physical taking only where it
requires the landowner to submit to the physical occupation
of his land. "This element of required acquiescence is at the heart
of the concept of occupation."
FCC v.
Florida Power
Corp., 480 U. S.
245, 252 (1987). Thus whether the government floods a
landowner's property,
Pumpelly v.
Green Bay Co., 13
Wall. 166 (1872), or does no more than require the landowner to
suffer the installation of a cable,
Loretto, supra, the
Takings Clause requires compensation if the government authorizes a
compelled physical invasion of property.
But the Escondido rent control ordinance, even when considered
in conjunction with the California Mobilehome Residency Law,
authorizes no such thing. Petitioners voluntarily rented their land
to mobile home owners. At least on the face of the regulatory
scheme, neither the city nor the State compels petitioners, once
they have rented their prop-
528
erty to tenants, to continue doing so. To the contrary, the
Mobilehome Residency Law provides that a park owner who wishes to
change the use of his land may evict his tenants, albeit with 6 or
12 months notice. Cal. Civ. Code Ann. § 798.56(g). Put bluntly, no
government has required any physical invasion of petitioners'
property. Petitioners' tenants were invited by petitioners, not
forced upon them by the government. See
Florida Power,
supra, at 252-253. While the "right to exclude" is doubtless,
as petitioners assert, "one of the most essential sticks in the
bundle of rights that are commonly characterized as property,"
Kaiser Aetna v.
United States, 444 U. S. 164, 176
(1979), we do not find that right to have been taken from
petitioners on the mere face of the Escondido ordinance.
Petitioners suggest that the statutory procedure for changing
the use of a mobile home park is in practice "a kind of gauntlet,"
in that they are not in fact free to change the use of their land.
Reply Brief for Petitioners 10, n. 16. Because petitioners do not
claim to have run that gauntlet, however, this case provides no
occasion to consider how the procedure has been applied to
petitioners' property, and we accordingly confine ourselves to the
face of the statute. See
Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 493-495
(1987). A different case would be presented were the statute, on
its face or as applied, to compel a landowner over objection to
rent his property or to refrain in perpetuity from terminating a
tenancy. See
Florida Power, supra, at 251-252, n. 6; see
also
Nollan v.
California Coastal Comm'n, 483 U. S. 825, 831-832
(1987);
Fresh Pond Shopping Center, Inc. v.
Callahan,
464 U. S. 875,
877 (1983) (REHNQUIST, J., dissenting).
On their face, the state and local laws at issue here merely
regulate petitioners'
use of their land by regulating the
relationship between landlord and tenant. "This Court has
consistently affirmed that States have broad power to regulate
housing conditions in general and the landlord-tenant rela-
529
tionship in particular without paying compensation for all
economic injuries that such regulation entails."
Loretto,
458 U. S., at 440. See also
Florida Power, supra, at 252
("statutes regulating the economic relations of landlords and
tenants are not
per se takings"). When a landowner decides
to rent his land to tenants, the government may place ceilings on
the rents the landowner can charge, see,
e. g., Pennell,
supra, at 12, n. 6, or require the landowner to accept tenants
he does not like, see,
e. g., Heart of Atlanta Motel, Inc.
v.
United States, 379 U. S. 241, 261
(1964), without automatically having to pay compensation. See also
PruneYard Shopping Center v.
Robins, 447 U. S. 74, 82-84
(1980). Such forms of regulation are analyzed by engaging in the
"essentially ad hoc, factual inquiries" necessary to determine
whether a regulatory taking has occurred.
Kaiser Aetna,
supra, at 175. In the words of Justice Holmes, "while property
may be regulated to a certain extent, if regulation goes too far it
will be recognized as a taking."
Pennsylvania Coal Co. v.
Mahon, 260 U.
S. 393, 415 (1922).
Petitioners emphasize that the ordinance transfers wealth from
park owners to incumbent mobile home owners. Other forms of land
use regulation, however, can also be said to transfer wealth from
the one who is regulated to another. Ordinary rent control often
transfers wealth from landlords to tenants by reducing the
landlords' income and the tenants' monthly payments, although it
does not cause a one-time transfer of value as occurs with mobile
homes. Traditional zoning regulations can transfer wealth from
those whose activities are prohibited to their neighbors; when a
property owner is barred from mining coal on his land, for example,
the value of his property may decline but the value of his
neighbor's property may rise. The mobile home owner's ability to
sell the mobile home at a premium may make this wealth transfer
more
visible than in the ordinary case, see Epstein, Rent
Control and the Theory of Efficient Regulation, 54 Brooklyn L. Rev.
741, 758-759 (1988), but the exist-
530
ence of the transfer in itself does not convert regulation into
physical invasion.
Petitioners also rely heavily on their allegation that the
ordinance benefits incumbent mobile home owners without benefiting
future mobile home owners, who will be forced to purchase mobile
homes at premiums. Mobile homes, like motor vehicles, ordinarily
decline in value with age. But the effect of the rent control
ordinance, coupled with the restrictions on the park owner's
freedom to reject new tenants, is to increase significantly the
value of the mobile home. This increased value normally benefits
only the tenant in possession at the time the rent control is
imposed. See Hirsch & Hirsch, 35 UCLA L. Rev., at 430-431.
Petitioners are correct in citing the existence of this premium as
a difference between the alleged effect of the Escondido ordinance
and that of an ordinary apartment rent control statute. Most
apartment tenants do not sell anything to their successors (and are
often prohibited from charging "key money"), so a typical rent
control statute will transfer wealth from the landlord to the
incumbent tenant and all future tenants. By contrast, petitioners
contend that the Escondido ordinance transfers wealth only to the
incumbent mobile home owner. This effect might have some bearing on
whether the ordinance causes a
regulatory taking, as it may
shed some light on whether there is a sufficient nexus between the
effect of the ordinance and the objectives it is supposed to
advance. See
Nollan v.
California Coastal Comm'n,
supra, at 834835. But it has nothing to do with whether the
ordinance causes a
physical taking. Whether the ordinance
benefits only current mobile home owners or all mobile home owners,
it does not require petitioners to submit to the physical
occupation of their land.
The same may be said of petitioners' contention that the
ordinance amounts to compelled physical occupation because it
deprives petitioners of the ability to choose their incoming
531
tenants. * Again, this effect may be relevant to a regulatory
taking argument, as it may be one factor a reviewing court would
wish to consider in determining whether the ordinance unjustly
imposes a burden on petitioners that should "be compensated by the
government, rather than remain[ing] disproportionately concentrated
on a few persons."
Penn Central Transportation Co. v.
New
York City, 438 U. S., at 124. But it does not convert
regulation into the unwanted physical occupation of land. Because
they voluntarily open their property to occupation by others,
petitioners cannot assert a
per se right to compensation
based on their inability to exclude particular individuals. See
Heart of Atlanta Motel, Inc. v.
United States, 379 U.
S., at 261; see also
id., at 259 ("[A]ppellant has no
'right' to select its guests as it sees fit, free from governmental
regulation");
PruneYard Shopping Center v.
Robins,
447 U. S., at 82-84.
Petitioners' final line of argument rests on a footnote in
Loretto, in which we rejected the contention that "the
landlord could avoid the requirements of [the statute forcing her
to permit cable to be permanently placed on her property] by
ceasing to rent the building to tenants." We found this possibility
insufficient to defeat a physical taking claim, because "a
landlord's ability to rent his property may not be conditioned on
his forfeiting the right to compensation for a physical
occupation."
Loretto, 458 U. S., at 439, n. 17. Petitioners
argue that if they have to leave the mobile home park business in
order to avoid the strictures of the Escondido
*Strictly speaking, the Escondido rent control ordinance only
limits rents. Petitioners' inability to select their incoming
tenants is a product of the State's Mobilehome Residency Law, the
constitutionality of which has never been at issue in this case.
(The State, moreover, has never been a party.) But we understand
petitioners to be making a more subtle argument-that before the
adoption of the ordinance they were able to influence a mobile home
owner's selection of a purchaser by threatening to increase the
rent for prospective purchasers they disfavored. To the extent the
rent control ordinance deprives petitioners of this type of
influence, petitioners' argument is one we must consider.
532
ordinance, their ability to rent their property has in fact been
conditioned on such a forfeiture. This argument fails at its base,
however, because there has simply been no compelled physical
occupation giving rise to a right to compensation that petitioners
could have forfeited. Had the city required such an occupation, of
course, petitioners would have a right to compensation, and the
city might then lack the power to condition petitioners' ability to
run mobile home parks on their waiver of this right. Cf.
Nollan v.
California Coastal Comm'n, 483 U. S., at
837. But because the ordinance does not effect a physical taking in
the first place, this footnote in
Loretto does not help
petitioners.
With respect to physical takings, then, this case is not far
removed from
FCC v.
Florida Power Corp., 480 U. S. 245 (1987), in
which the respondent had voluntarily leased space on its utility
poles to a cable television company for the installation of cables.
The Federal Government, exercising its statutory authority to
regulate pole attachment agreements, substantially reduced the
annual rent. We rejected the respondent's claim that "it is a
taking under
Loretto for a tenant invited to lease at a rent
of $7.15 to remain at the regulated rent of $1.79."
Id., at
252. We explained that "it is the invitation, not the rent, that
makes the difference. The line which separates [this case] from
Loretto is the unambiguous distinction between a ... lessee
and an interloper with a government license."
Id., at
252-253. The distinction is equally unambiguous here. The Escondido
rent control ordinance, even considered against the backdrop of
California's Mobilehome Residency Law, does not authorize an
unwanted physical occupation of petitioners' property. It is a
regulation of petitioners'
use of their property, and thus
does not amount to a
per se taking.
III
In this Court, petitioners attempt to challenge the ordinance on
two additional grounds: They argue that it constitutes a denial of
substantive due process and a regulatory
533
taking. Neither of these claims is properly before us. The first
was not raised or addressed below, and the second is not fairly
included in the question on which we granted certiorari.
A
The Yees did not include a due process claim in their complaint.
Nor did petitioners raise a due process claim in the Court of
Appeal. It was not until their petition for review in the
California Supreme Court that petitioners finally raised a
substantive due process claim. But the California Supreme Court
denied discretionary review. Such a denial, as in this Court,
expresses no view as to the merits. See
People v.
Triggs, 8 Cal. 3d 884, 890-891, 506 P. 2d 232, 236 (1973).
In short, petitioners did not raise a substantive due process claim
in the state courts, and no state court has addressed such a
claim.
In reviewing the judgments of state courts under the
jurisdictional grant of 28 U. S. C. § 1257, the Court has, with
very rare exceptions, refused to consider petitioners' claims that
were not raised or addressed below.
Illinois v.
Gates, 462 U.
S. 213, 218-220 (1983). While we have expressed inconsistent
views as to whether this rule is jurisdictional or prudential in
cases arising from state courts, see
ibid., we need not
resolve the question here. (In cases arising from federal courts,
the rule is prudential only. See,
e. g., Carlson v.
Green, 446 U.
S. 14, 17, n. 2 (1980).) Even if the rule were prudential, we
would adhere to it in this case. Because petitioners did not raise
their substantive due process claim below, and because the state
courts did not address it, we will not consider it here.
B
As a preliminary matter, we must address respondent's assertion
that a regulatory taking claim is unripe because petitioners have
not sought rent increases. While respondent is correct that a claim
that the ordinance effects a regula-
534
tory taking
as applied to petitioners' property would be
unripe for this reason, see
Williamson County Regional Planning
Comm'n v.
Hamilton Bank of Johnson City, 473 U. S. 172,
186-197 (1985), petitioners mount a
facial challenge to the
ordinance. They allege in this Court that the ordinance does not
"'substantially advance'" a "'legitimate state interest'" no matter
how it is applied. See
Nollan v.
California Coastal
Comm'n, supra, at 834;
Agins v.
Tiburon, 447 U. S. 255, 260
(1980). As this allegation does not depend on the extent to which
petitioners are deprived of the economic use of their particular
pieces of property or the extent to which these particular
petitioners are compensated, petitioners' facial challenge is ripe.
See
Keystone Bituminous Coal Assn. v.
DeBenedictis,
480 U. S., at 495;
Agins, supra, at 260.
We must also reject respondent's contention that the regulatory
taking argument is not properly before us because it was not made
below. It
is unclear whether petitioners made this argument
below: Portions of their complaint and briefing can be read either
to argue a regulatory taking or to support their physical taking
argument. For the same reason it is equally ambiguous whether the
Court of Appeal addressed the issue. Yet petitioners' regulatory
taking argument stands in a posture different from their
substantive due process claim.
Petitioners unquestionably raised a taking claim in the state
courts. The question whether the rent control ordinance took their
property without compensation, in violation of the Fifth
Amendment's Takings Clause, is thus properly before us. Once a
federal claim is properly presented, a party can make any argument
in support of that claim; parties are not limited to the precise
arguments they made below.
Bankers Life &
Casualty
Co. v.
Crenshaw, 486 U. S. 71, 78, n. 2
(1988);
Gates, supra, at 219-220;
Dewey v.
Des
Moines, 173 U. S.
193, 197-198 (1899). Petitioners' arguments that the ordinance
constitutes a taking in two differ-
535
ent ways, by physical occupation and by regulation, are not
separate
claims. They are, rather, separate
arguments
in support of a single claim-that the ordinance effects an
unconstitutional taking. Having raised a taking claim in the state
courts, therefore, petitioners could have formulated any argument
they liked in support of that claim here.
A litigant seeking review in this Court of a claim properly
raised in the lower courts thus generally possesses the ability to
frame the question to be decided in any way he chooses, without
being limited to the manner in which the question was framed below.
While we have on occasion rephrased the question presented by a
petitioner, see,
e. g., Ankenbrandt v.
Richards, 502 U. S. 1023 (1992), or requested the parties to
address an important question of law not raised in the petition for
certiorari, see,
e. g., Payne v.
Tennessee, 498 U. S.
1080 (1991), by and large it is the petitioner himself who controls
the scope of the question presented. The petitioner can generally
frame the question as broadly or as narrowly as he sees fit.
The framing of the question presented has significant
consequences, however, because under this Court's Rule 14.1(a),
"[o]nly the questions set forth in the petition, or fairly included
therein, will be considered by the Court." While "[t]he statement
of any question presented will be deemed to comprise every
subsidiary question fairly included therein,"
ibid., we
ordinarily do not consider questions outside those presented in the
petition for certiorari. See,
e. g., Berkemer v.
McCarty, 468
U. S. 420, 443, n. 38 (1984). This rule is prudential in
nature, but we disregard it "only in the most exceptional cases,"
Stone v.
Powell, 428 U. S. 465, 481, n. 15
(1976), where reasons of urgency or of economy suggest the need to
address the unpresented question in the case under
consideration.
Rule 14.1(a) serves two important and related purposes.
First, it provides the respondent with notice of the grounds
upon which the petitioner is seeking certiorari, and enables
536
the respondent to sharpen the arguments as to why certiorari
should not be granted. Were we routinely to consider questions
beyond those raised in the petition, the respondent would lack any
opportunity in advance of litigation on the merits to argue that
such questions are not worthy of review. Where, as is not unusual,
the decision below involves issues on which the petitioner does
not seek certiorari, the respondent would face the
formidable task of opposing certiorari on every issue the Court
might conceivably find present in the case. By forcing the
petitioner to choose his questions at the outset, Rule 14.1(a)
relieves the respondent of the expense of unnecessary litigation on
the merits and the burden of opposing certiorari on unpresented
questions.
Second, Rule 14.1(a) assists the Court in selecting the cases in
which certiorari will be granted. Last Term alone we received over
5,000 petitions for certiorari, but we have the capacity to decide
only a small fraction of these cases on the merits. To use our
resources most efficiently, we must grant certiorari only in those
cases that will enable us to resolve particularly important
questions. Were we routinely to entertain questions not presented
in the petition for certiorari, much of this efficiency would
vanish, as parties who feared an inability to prevail on the
question presented would be encouraged to fill their limited
briefing space and argument time with discussion of issues other
than the one on which certiorari was granted. Rule 14.1(a) forces
the parties to focus on the questions the Court has viewed as
particularly important, thus enabling us to make efficient use of
our resources.
We granted certiorari on a single question pertaining to the
Takings Clause: "Two federal courts of appeal have held that the
transfer of a premium value to a departing mobilehome tenant,
representing the value of the right to occupy at a reduced rate
under local mobilehome rent control ordinances, constitute[s] an
impermissible taking. Was it error for the state appellate court to
disregard the rulings and
537
hold that there was no taking under the fifth and fourteenth
amendments?" This was the question presented by petitioners. Pet.
for Cert. i. It asks whether the court below erred in disagreeing
with the holdings of the Courts of Appeals for the Third and Ninth
Circuits in
Pinewood Estates of Michigan v.
Barnegat
Township Leveling Board, 898 F. 2d 347 (CA3 1990), and
Hall v.
Santa Barbara, 833 F.2d
1270 (CA9 1987), cert. denied, 485 U. S. 940 (1988). These
cases, in turn, held that mobile home ordinances effected physical
takings, not regulatory takings. Fairly construed, then,
petitioners' question presented is the equivalent of the question
"Did the court below err in finding no physical taking?"
Whether or not the ordinance effects a regulatory taking is a
question
related to the one petitioners presented, and
perhaps
complementary to the one petitioners presented, but
it is not "fairly included therein." Consideration of whether a
regulatory taking occurred would not assist in resolving whether a
physical taking occurred as well; neither of the two questions is
subsidiary to the other. Both might be subsidiary to a question
embracing both-Was there a taking? -but they exist side by side,
neither encompassing the other. Cf.
American Nat. Bank &
Trust Co. of Chicago v.
Haroco, Inc., 473 U. S. 606, 608 (1985)
(question whether complaint adequately alleges conduct of
racketeering enterprise is not fairly included in question whether
statute requires that plaintiff suffer damages through defendant's
conduct of such an enterprise).
Rule 14.1(a) accordingly creates a heavy presumption against our
consideration of petitioners' claim that the ordinance causes a
regulatory taking. Petitioners have not overcome that presumption.
While the regulatory taking question is no doubt important, from an
institutional perspective it is not as important as the physical
taking question. The lower courts have not reached conflicting
results, so far as we know, on whether similar mobile home rent
538
control ordinances effect regulatory takings. They
have
reached conflicting results over whether such ordinances cause
physical takings; such a conflict is, of course, a substantial
reason for granting certiorari under this Court's Rule 10.
Moreover, the conflict is between two courts whose jurisdiction
includes California, the State with the largest population and one
with a relatively high percentage of the Nation's mobile homes.
Forum shopping is thus of particular concern. See
Azul Pacifico,
Inc. v.
Los Angeles, 948 F.2d
575, 579 (CA9 1991) (mobile home park owners may file physical
taking suits in either state or federal court). Prudence also
dictates awaiting a case in which the issue was fully litigated
below, so that we will have the benefit of developed arguments on
both sides and lower court opinions squarely addressing the
question. See
Lytle v.
Household Mfg., Inc., 494 U. S. 545, 552, n. 3
(1990) ("Applying our analysis ... to the facts of a particular
case without the benefit of a full record or lower court
determinations is not a sensible exercise of this Court's
discretion"). In fact, were we to address the issue here, we would
apparently be the first court in the Nation to determine whether an
ordinance like this one effects a regulatory taking. We will
accordingly follow Rule 14.1(a), and consider only the question
petitioners raised in seeking certiorari. We leave the regulatory
taking issue for the California courts to address in the first
instance.
IV
We made this observation in
Loretto:
"Our holding today is very narrow. We affirm the traditional
rule that a permanent physical occupation of property is a taking.
In such a case, the property owner entertains a historically rooted
expectation of compensation, and the character of the invasion is
qualitatively more intrusive than perhaps any other category of
property regulation. We do not, however, question the equally
substantial authority upholding a State's
539
broad power to impose appropriate restrictions upon an owner's
use of his property." 458 U. S., at 441.
We respected this distinction again in
Florida Power,
where we held that no taking occurs under
Loretto when a
tenant invited to lease at one rent remains at a lower regulated
rent.
Florida Power, 480 U. S., at 252-253. We continue to
observe the distinction today. Because the Escondido rent control
ordinance does not compel a landowner to suffer the physical
occupation of his property, it does not effect a
per se
taking under
Loretto. The judgment of the Court of Appeal is
accordingly
Affirmed.
JUSTICE BLACKMUN, concurring in the judgment.
I agree with the Court that the Escondido ordinance is not a
taking under this Court's analysis in
Loretto v.
Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). I
also conclude that the substantive due process and regulatory
taking claims are not properly raised in this Court. For that
reason, I, unlike the Court, do not decide whether the regulatory
taking claim is or is not ripe, or which of petitioners' arguments
would or would not be relevant to such a claim.
JUSTICE SOUTER, concurring in the judgment.
I concur in the judgment and would join the Court's opinion
except for its references to the relevance and significance of
petitioners' allegations to a claim of regulatory taking.
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