520 U.S. 725
Argued Feb. 26, 1997.
Decided May 27, 1997.
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
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.
regulatory takings claim is ripe for adjudication.
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, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126.
The Ninth Circuit's rationale for holding Suitum's claim unripe -- that
she had failed to obtain a final and authoritative agency decision -- is
unsupported by this Court's precedents.
See, e.g., Williamson County, supra, at 191, 193, 105 S.Ct., at
3118-3119; MacDonald, Sommer
& Frates v. Yolo County, 477 U.S. 340, 349, 106 S.Ct. 2561, 2566, 91
L.Ed.2d 285. 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, 105 S.Ct.,
at 3119, 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, 106 S.Ct., at 2566.
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.
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.
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. 1668-1669.
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, 87 S.Ct. 1507, 1515-1516, 18 L.Ed.2d 681,
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.
F.3d 359 (C.A. 9), vacated and remanded.
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. 1670.
S. Radford, Sacramento, CA, for petitioner.
J. Lazarus, University City, MO, for respondent.
G. Wallace, Washington, DC, to the United States as amicus curiae by
special leave of the Court.
U.S. Supreme Court Briefs See:
WL 695505 (Pet.Brief)
WL 7574 (Resp.Brief)
WL 47628 (Reply.Brief)
WL 686207 (Amicus.Brief)
WL 687883 (Amicus.Brief)
WL 687898 (Amicus.Brief)
WL 687945 (Amicus.Brief)
WL 687967 (Amicus.Brief)
WL 689683 (Amicus.Brief)
WL 689737 (Amicus.Brief)
WL 707993 (Amicus.Brief)
WL 9053 (Amicus.Brief)
WL 9054 (Amicus.Brief)
WL 9055 (Amicus.Brief)
WL 9057 (Amicus.Brief)
WL 9061 (Amicus.Brief)
WL 9062 (Amicus.Brief)
WL 9065 (Amicus.Brief)
WL 9069 (Amicus.Brief)
WL 10277 (Amicus.Brief)
WL 10278 (Amicus.Brief)
WL 10279 (Amicus.Brief)
WL 13542 (Amicus.Brief)
WL 786996 (Amicus.Brief)
Transcript of Oral Argument See:
WL 87090 (U.S.Oral.Arg.)
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,
729 even though Suitum has not attempted to sell the development
rights she has or is eligible to receive.
We hold that it is.
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, 99 S.Ct. 1171, 1173, 59 L.Ed.2d 401 (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.
FN1. 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.
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
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 § 37.4.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., § 20.4.
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. [FN2]
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.
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
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
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 n. 2, supra.
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. [FN3] 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 TRPA 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
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," [FN4] 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. [FN5]
FN3. 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.
FN4. See Suitum's Response to Defendant's Memorandum Concerning its
Transfer of Development Program 1-2.
FN5. 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).
The District Court
decided that Suitum's claim was not ripe for consideration because "[a]s
things now stand, there 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.' " [FN6] 80 F.3d
359, 362-363 (1996). We
granted certiorari to consider the ripeness of Suitum's takings claim, 519
U.S. 926, 117 S.Ct. 293, 136 L.Ed.2d 213 (1996), and now reverse.
FN6. 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.
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. [FN7]
There are two independent
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, 105 S.Ct. 3108, 87 L.Ed.2d
126 (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, 105 S.Ct., at 3116, and sought " compensation through the
procedures the State has provided for doing so," id., at 194, 105
S.Ct., at 3120. 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, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), results in a taking under the
Fifth Amendment, see, e.g., MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (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, 112 S.Ct. 2886, 2892-2895, 120 L.Ed.2d 798 (1992) (regulation
"goes too far" and results in a taking "at least [ ] 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, 105 S.Ct., at 3121. Because only the "final
decision" prong of Williamson was addressed below and briefed before
this Court, we confine our discussion here to that issue. [FN8]
FN7. "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, 113
S.Ct. 2485, 2496, n. 18, 125 L.Ed.2d 38 (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
FN8. We 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
Williamson County, 473 U.S., at 194-196, 105 S.Ct., at 3120-3122. Suitum's counsel stated at oral argument 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 (C.A.9 1990).
We leave this matter to the Court of Appeals on remand.
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
City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (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.
[FN9] In Agins, the
landowners who challenged zoning
ordinances 736 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. [FN10]
Id., at 260, 100 S.Ct., at 2141.
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."
FN9. Two years earlier, in Penn Central Transp. Co. v. New York
City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (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 Terminal].'
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, 98 S.Ct., at 2665-2666 (citation omitted).
FN10. 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, 107 S.Ct. 1232, 1247, 94 L.Ed.2d
472 (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, 101 S.Ct. 2352, 2371, 69 L.Ed.2d 1 (1981).
Suitum does not purport to challenge the agency's regulations on
The following Term,
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S.
264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), toughened our nascent ripeness
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, 101 S.Ct., at 2371. [FN11]
Hodel thus held that where the regulatory regime
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.
FN11. 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,
101 S.Ct., at 2370-2371.
Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,
105 S.Ct. 3108, 87 L.Ed.2d 126 (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, 105 S.Ct., at 3117, 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, 105 S.Ct., at 3119, "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, 105 S.Ct., at 3120, in order to ripen its
& Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285
(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, 106 S.Ct., at 2564-2565. 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, 106 S.Ct., at 2566 (quoting Williamson County, supra, at
199-200, 105 S.Ct., at 3123).
aside the question of how definitive a local zoning decision must be to
satisfy Williamson County 's demand for finality, [FN12] 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, 106 S.Ct., at 2566.
When such flexibility or discretion may be brought to bear on the
permissible use of property as singular as a
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
FN12. 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, 106 S.Ct., at 2568, n. 9;
compare Williamson County, 473 U.S., at 191, 105 S.Ct., at 3118-3119
(applicant must obtain final definitive position on how regulations will
be applied to the land in question), with id., at 193, 105 S.Ct., at 3120
(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.
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, 105 S.Ct., at 3119. 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, TRPA 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.
The agency nonetheless
argued below, and the lower courts agreed, see
supra, at 1664, 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
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-91-040-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 mathematical likelihood 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 TRPA
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
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 1663-1664. [FN13] 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 TDR's might be their actual
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 (C.A.10 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 (C.A.6 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.
FN13. 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.
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, 87 S.Ct. 1507, 18 L.Ed.2d 681
(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 statutory 743 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:
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, 87 S.Ct., at 1515 (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 APA, 5 U.S.C. § 704, and
then rejected the Government's argument that review must await
enforcement. 387 U.S., at 149-152,
87 S.Ct., at 1515-1517. 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, 87 S.Ct., at 1517 (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, 87 S.Ct., at 1518.
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
* * *
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 (TRPA) 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, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), that there must be a
"final decision regarding the application of the [challenged]
regulations to the property at issue," id., at 186, 105 S.Ct., at
3116, quoted ante, at 1665, and of MacDonald, Sommer & Frates v. Yolo
County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), that
"[a] court cannot determine whether a regulation has gone 'too far'
unless it knows how far the regulation goes," id., at 348, 106 S.Ct.,
at 2566, quoted ante, at 1665. 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, 105 S.Ct., at 3118. 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" requirement
746 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, 106 S.Ct., at 2566;
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, 106 S.Ct., at 2567.
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, 112 S.Ct. 2886, 120
L.Ed.2d 798 (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, 112 S.Ct., at 2891.
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 1665, 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, 43 S.Ct.
158, 160, 67 L.Ed. 322 (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, 100 S.Ct.
2138, 65 L.Ed.2d 106 (1980), discussed ante, at 1665-1666, 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, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981),
discussed ante, at 1666, 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 1666-1667, 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 1666, 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)
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
Putting TDRs on the taking rather than the just compensation
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. 564.54 Acres of
Monroe and Pike County Land, 441 U.S. 506, 510, 99 S.Ct. 1854, 1856, 60
L.Ed.2d 435 (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, 13 S.Ct.
622, 626, 37 L.Ed. 463 (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, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).
If money that the government‑regulator 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 Central 749 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, 98 S.Ct., at 2666 (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, 98 S.Ct., at 2654.
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, 98 S.Ct., at 2666.
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
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 substantially
750 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, 98 S.Ct., at 2673 (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
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
TRPA'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 § 20.4. 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.