473 U.S. 172
Argued Feb. 19, 1985.
Decided June 28, 1985.
172 Syllabus [FN*]
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 Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.
required under Tennessee law, in 1973 respondent's predecessor in
interest, a land developer, obtained petitioner Planning Commission's
approval of a preliminary plat for development of a tract.
The tract was to be developed in accord with the requirements of a
county zoning ordinance for "cluster" development of residential
areas and the Commission's implementing regulations. In 1977, the county zoning ordinance was changed so as
to reduce the allowable density of dwelling units, but the Commission
continued to apply the 1973 ordinance and regulations to the developer's
tract. In 1979,
however, the Commission decided that further development of the tract
should be governed by the ordinance and regulations then in effect.
The Commission thereafter disapproved plats proposing further
development of the remainder of the tract on various grounds, including
failure to comply with current density requirements.
Respondent filed suit against the Commission and its members and
staff (also petitioners) in Federal District Court pursuant to 42 U.S.C.
§ 1983, alleging that the Commission had taken its property without just
compensation by refusing to approve the proposed development. The jury found that respondent had been denied the
"economically viable" use of its property in violation of the
Just Compensation Clause of the Fifth Amendment, and awarded damages for
the temporary taking of respondent's property.
The District Court entered an injunction requiring the Commission
to apply the 1973 ordinance and regulations to the project, but granted
judgment notwithstanding the jury's verdict for the Commission on the
taking claim, concluding that the temporary deprivation of economic
benefit from respondent's property, as a matter of law, could not
constitute a taking. The
Court of Appeals reversed, holding that application of government
regulations affecting an owner's use of property may constitute a taking, and that the evidence
supported the jury's finding that the property had no economically
feasible use during the time between the Commission's refusal to approve
the plat and the jury's verdict.
Even assuming, arguendo, that government regulation may effect a taking
for which the Fifth Amendment requires just compensation, 173 and assuming further that the Fifth Amendment requires the
payment of money damages to compensate for such a taking, the jury verdict
in this case cannot be upheld because respondent's claim is premature.
Respondent has not yet obtained a final decision regarding the
application of the ordinance and regulations to its property, nor utilized
the procedures Tennessee provides for obtaining just compensation, and its
claim therefore is not ripe. Pp. 3116-3122.
Although respondent's plan for developing its property was rejected, it
did not then seek variances that would have allowed it to develop the
property according to its proposed plat.
Cf. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1.
The record does not support respondent's claim that the
Commission's denial of approval for respondent's plat was equivalent to a
denial of variances. Thus,
respondent has not yet obtained a final decision regarding how it will be
allowed to develop its property.
Respondent's contention that it should not be required to seek
variances because its suit is predicated upon 42 U.S.C. § 1983 is without
merit. While there is
no requirement that a plaintiff exhaust administrative remedies before
bringing a § 1983 action, the question whether administrative remedies
must be exhausted is conceptually distinct from the question whether an
administrative action must be final before it is judicially reviewable. Pp. 3116-3121.
The Fifth Amendment does not require that just compensation be paid in
advance of, or contemporaneously with, the taking.
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
Tennessee law, a property owner may bring an inverse condemnation action
to obtain just compensation for an alleged taking of property under
certain circumstances. Respondent has not shown that the inverse condemnation
procedure is unavailable or inadequate, and until it has utilized that
procedure, its taking claim is premature.
Respondent's claim also is premature if viewed under the theory that
government regulation that goes so far that it has the same effect as a
physical taking, must be viewed not as a Fifth Amendment
"taking," but as an invalid exercise of the police power,
violative of the Due Process Clause of the Fourteenth Amendment.
Resolution of the due process question depends, in significant
part, upon an analysis of the effect the Commission's application of the
ordinance and regulations had on the value of respondent's property and
investment-backed profit expectations.
That effect cannot be measured until a final decision is made as to
how the regulations will be applied to respondent's property.
No such decision had been made at the time respondent filed its §
1983 action, 174 because
respondent failed to apply for variances from the regulations.
F.2d 402 (CA6, 1984) reversed and remanded.
L. Estes argued the cause for petitioners.
With him on the brief was M. Milton Sweeney.
S. Kneedler argued the cause for the United States as amicus curiae urging
reversal. With him on the
brief were Solicitor General Lee, Assistant Attorney General Habicht,
Deputy Solicitor General Claiborne, and David C. Shilton.
Nebel argued the cause for respondent.
With him on the brief was Gus Bauman.*
Briefs of amici curiae urging reversal were filed for the State of
California ex rel. John K. Van de Kamp, Attorney General of California, et
al. by Mr. Van de Kamp, pro se, N. Gregory Taylor and Theodora Berger,
Assistant Attorneys General of California, Richard C. Jacobs, Craig C.
Thompson, Richard M. Frank, Norman C. Gorsuch, Attorney General of Alaska,
Jim Smith, Attorney General of Florida, Thomas J. Miller, Attorney General
of Iowa, Francis X. Bellotti, Attorney General of Massachusetts, Hubert H.
Humphrey III, Attorney General of Minnesota, Paul L. Douglas, Attorney
General of Nebraska, Brian McKay, Attorney General of Nevada, George V.
Postrozny, Deputy Attorney General, Gregory H. Smith, Attorney General of
New Hampshire, T. Travis Medlock, Attorney General of South Carolina, Jim
Mattox, Attorney General of Texas, Rufus L. Edmisten, Attorney General of
North Carolina, Michael Turpen, Attorney General of Oklahoma, Robert L.
McDonald, First Assistant Attorney General, Mark V. Meierhenry, Attorney
General of South Dakota, David L. Wilkinson, Attorney General of Utah,
Dallis W. Jensen, Solicitor General, John J. Easton, Attorney General of
Vermont, Bronson C. La Follette, Attorney General of Wisconsin, Archie G.
McClintock, Attorney General of Wyoming, Aviata F. Fa'Alevao, Attorney
General of American Samoa; for
the National Association of Counties et al. by Lawrence R. Velvel and
Joyce Holmes Benjamin; for
the City of New York by Frederick A.O. Schwarz, Jr., and Leonard Koerner;
and for the City of St. Petersburg, Florida, by Charles L. Siemon,
Wendy U. Larsen, and Michael S. Davis.
of amici curiae urging affirmance were filed for the American College of
Real Estate Lawyers by Edward I. Cutler, Eugene J. Morris, and John P.
Trevaskis, Jr.; for the
California Building Industry Association by Gideon Kanner;
for the National Apartment Association by Jon D. Smock and Wilbur
H. Haines III; and for the
Pacific Legal Foundation by Ronald A. Zumbrun and Robert K. Best.
A. Thurston, Robert K. Break, and John L. FellowsIII filed a brief for
Irvine Co. as amicus curiae.
Justice BLACKMUN delivered the opinion of the Court.
Respondent, the owner of a tract of land it was developing as
a residential subdivision, sued
petitioners, the Williamson County (Tennessee) Regional Planning
Commission and its members and staff, in United States District Court,
alleging that petitioners' application of various zoning laws and
regulations to respondent's property amounted to a "taking" of
that property. At
trial, the jury agreed and awarded respondent $350,000 as just
compensation for the "taking."
Although the jury's verdict was rejected by the District Court,
which granted a judgment notwithstanding the verdict to petitioners, the
verdict was reinstated on appeal. Petitioners and their amici urge this Court to overturn
the jury's award on the ground that a temporary regulatory interference
with an investor's profit expectation does not constitute a
"taking" within the meaning of the Just Compensation Clause of
the Fifth Amendment, [FN1] or, alternatively, on the ground that even if
such interference does constitute a taking, the Just Compensation Clause
does not require money damages as recompense.
Before we reach those contentions,
176 we examine the procedural posture of respondent's claim.
shall private property be taken for public use, without just
Fifth Amendment's prohibition, of course, applies against the States
through the Fourteenth Amendment. Chicago,
B. & Q.R. Co. v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 41
L.Ed. 979 (1897); see also
San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 623, n. 1,
101 S.Ct. 1287, 1289, n. 1, 67 L.Ed.2d 551 (1981).
Under Tennessee law, responsibility for land-use planning is
divided between the legislative body of each of the State's counties and
regional and municipal "planning commissions."
The county legislative body is responsible for zoning ordinances to
regulate the uses to which particular land and buildings may be put, and
to control the density of population and the location and dimensions of
buildings. Tenn.Code Ann. §
13-7-101 (1980). The
planning commissions are responsible for more specific regulations
governing the subdivision of land within their region or municipality for
residential development. §§
13-3-403, 13-4-303. Enforcement
of both the zoning ordinances and the subdivision regulations is
accomplished in part through a requirement that the planning commission
approve the plat of a subdivision before the plat may be recorded.
13-4-302 (1980 and Supp.1984).
Pursuant to § 13-7-101, the Williamson County "Quarterly
Court," which is the county's legislative body, in 1973 adopted a
zoning ordinance that allowed "cluster" development of
residential areas. Under
"both the size
and the width of individual residential lots in ... [a] development may be
reduced, provided ... that the overall density of the entire tract remains
constant -- provided, that is, that an area equivalent to the total of the
areas thus 'saved' from each individual lot is pooled and retained as
common open space." 2
N. Williams, American Land Planning Law § 47.01, pp. 212-213 (1974).
Cluster zoning thus allows housing units to be grouped, or
"clustered" together, rather than being evenly spaced on uniform
177 As required by § 13-3-402, respondent's predecessor-in-interest
(developer) in 1973 submitted a preliminary plat for the cluster
development of its tract, the Temple Hills Country Club Estates (Temple
Hills), to the Williamson County Regional Planning Commission for
approval. At that time,
the county's zoning ordinance and the Commission's subdivision regulations
required developers to seek review and approval of subdivision plats in
two steps. The
developer first was to submit for approval a preliminary plat, or
"initial sketch plan," indicating, among other things, the
boundaries and acreage of the site, the number of dwelling units and their
basic design, the location of existing and proposed roads, structures,
lots, utility layouts, and open space, and the contour of
the land. App. in No. 82-5388 (CA6), pp. 857, 871 (CA App.).
Once approved, the preliminary plat served as a basis for the
preparation of a final plat. Under the Commission's regulations, however, approval
of a preliminary plat "will not constitute acceptance of the final
plat." Id., at 872.
Approval of a preliminary plat lapsed if a final plat was not
submitted within one year of the date of the approval, unless the
Commission granted an extension of time, or unless the approval of the
preliminary plat was renewed. Ibid.
The final plat, which is the official authenticated document that
is recorded, was required to conform substantially to the preliminary
plat, and, in addition, to include such details as the lines of all
streets, lots, boundaries, and building setbacks. Id., at 875.
On May 3, 1973, the Commission approved the developer's
preliminary plat for Temple Hills.
App. 246-247. The
plat indicated that the development was to include 676 acres, of which 260
acres would be open space, primarily in the form of a golf course.
Id., at 422. A notation on the plat indicated that the number of
"allowable dwelling units for total development" was 736, but
lot lines were drawn in for only 469 units.
The areas in which the remaining 276 units were to be placed were
left blank and bore the notation "this parcel not to be developed
until approved by the planning commission."
178 The plat also contained a disclaimer that "parcels
with note 'this parcel not to be developed until approved by the planning
commission' not a part of this plat and not included in gross area."
Ibid. The density of
736 allowable dwelling units was calculated by multiplying the number of
acres (676) by the number of units allowed per acre (1.089).
Id., at 361. Although
the zoning regulations in effect in 1973 required that density be
calculated "on the basis of total acreage less fifty percent (50%) of
the land lying in the flood plain ... and less fifty percent (50%) of all
land lying on a slope with a grade in excess of twenty-five percent
(25%)," CA App. 858, no deduction was made from the 676 acres for
such land. Tr. 369.
Upon approval of the preliminary plat, the developer conveyed
to the county a permanent open space easement for the golf course, and
began building roads and installing utility lines for the project. App. 259-260.
The developer spent approximately $3 million building the golf
course, and another $500,000 installing sewer and water facilities. Defendant's Ex. 96.
Before housing construction was to begin on a particular section, a
final plat of that section was submitted for approval.
Several sections, containing a total of 212 units, were given final
approval by 1979. App.
260, 270, 278, 423. The
preliminary plat, as well, was reapproved four times during that period.
Id., at 270, 274, 362, 423.
In 1977, the county changed its zoning ordinance to require
that calculations of allowable density exclude 10% of the total acreage to
account for roads and utilities. Id.,
at 363; CA App. 862.
In addition, the number of allowable units was changed to one per
acre from the 1.089 per acre allowed in 1973.
Id., at 858, 862; Tr. 1169-1170, 1183.
The Commission continued to apply the zoning ordinance and
subdivision regulations in effect in 1973 to Temple Hills, however, and
reapproved the preliminary plat in 1978.
In August 1979, the Commission reversed its position and decided
that plats submitted for renewal should be evaluated under the zoning
179 ordinance and subdivision regulations in effect when the renewal
was sought. App. 279-282.
The Commission then renewed the Temple Hills plat under the
ordinances and regulations in effect at that time.
Id., at 283-284.
In January 1980, the Commission asked the developer to submit
a revised preliminary plat before it sought final approval for the
remaining sections of the subdivision.
The Commission reasoned that this was necessary because the
original preliminary plat contained a number of surveying errors, the land
available in the subdivision had been decreased inasmuch as the State had
condemned part of the land for a parkway, and the areas marked
"reserved for future development" had never been platted.
Plaintiff's Exs. 1078 and 1079; Tr.
164-168. A special
committee (Temple Hills Committee) was appointed to work with the
developer on the revision of the preliminary plat. Plaintiff's Ex. 1081;
The developer submitted a revised preliminary plat for
approval in October 1980. [FN2] Upon
review, the Commission's staff and the Temple Hills Committee noted
several problems with the revised plat.
App. 304-305. First, the allowable density under the zoning
ordinance and subdivision regulations then in effect was 548 units, rather
than the 736 units claimed under the preliminary plat approved in 1973.
The difference reflected a decrease in 18.5 acres for the parkway,
a decrease of 66 acres for the 10% deduction for roads, and an exclusion
of 44 acres for 50% of the land lying on slopes exceeding a 25% grade.
Second, two cul-de-sac roads that had become necessary because of
the land taken for the parkway exceeded the maximum length allowed for
such roads under the subdivision regulations in effect in both 1980 and
180 Third, approximately 2,000 feet of road would have grades
in excess of the maximum allowed by county road regulations.
Fourth, the preliminary plat placed units on land that had grades
in excess of 25% and thus was considered undevelopable under the zoning
ordinance and subdivision regulations.
Fifth, the developer had not fulfilled its obligations regarding
the construction and maintenance of the main access road.
Sixth, there were inadequate fire protection services for the area,
as well as inadequate open space for children's recreational activities.
Finally, the lots proposed in the preliminary plat had a road
frontage that was below the minimum required by the subdivision
regulations in effect in 1980.
FN2. The developer also
submitted the preliminary plat that had been approved in 1973 and
reapproved on several subsequent occasions, contending that it had the
right to develop the property according to that plat.
As we have noted, that plat did not indicate how all of the parcels
would be developed. App.
Temple Hills Committee recommended that the Commission grant a waiver of
the regulations regarding the length of the cul-de-sacs, the maximum grade
of the roads, and the minimum frontage requirement.
Id., at 297, 304-306. Without addressing the suggestion that those
three requirements be waived, the Commission disapproved the plat on two
other grounds: first, the
plat did not comply with the density requirements of the zoning ordinance
or subdivision regulations, because no deduction had been made for the
land taken for the parkway, and because there had been no deduction for
10% of the acreage attributable to roads or for 50% of the land having a
slope of more than 25%; and second, lots were placed on slopes with a
grade greater than 25%. Plaintiff's Ex. 9112.
developer then appealed to the County Board of Zoning Appeals for an
"interpretation of the Residential Cluster zoning [ordinance]
as it relates to Temple Hills."
[FN3] App. 314.
181 On November 11, 1980, the Board determined that the
Commission should apply the zoning ordinance and subdivision regulations
that were in effect in 1973 in evaluating the density of Temple Hills.
Id., at 328. It
also decided that in measuring which lots had excessive grades,
the Commission should define the slope in a manner more favorable to
the developer. Id., at 329.
FN3. The Board of
Zoning Appeals was empowered:
To hear and decide appeals on any permit, decision, determination, or
refusal made by the [County] Building Commissioner or other administrative
official in the carrying out or enforcement of any provision of this
Resolution; and to interpret
the Zoning map and this Resolution.
* * *
"c. To hear and decide applications for variances from the
terms of this Resolution. Such
variances shall be granted only where by reason of exceptional narrowness,
shallowness, or shape of a specific piece of property which at the time of
adoption of this Resolution was a lot of record, or where by reason of
exceptional topographic situations or conditions of a piece of property
the strict application of the provisions of this Resolution would result
in practical difficulties to or undue hardship upon the owner of such
Ex. 9112. See also
Tenn.Code Ann. §§ 13-7-106 to 13-7-109 (1980).
On November 26,
respondent, Hamilton Bank of Johnson City, acquired through foreclosure
the property in the Temple Hills subdivision that had not yet been
developed, a total of 257.65 acres. Id.,
at 189-190. This
included many of the parcels that had been left blank in the preliminary
plat approved in 1973. In
June 1981, respondent submitted two preliminary plats to the
Commission‑‑the plat that had been approved in 1973 and
subsequently reapproved several times, and a plat indicating respondent's
plans for the undeveloped areas, which was similar to the plat submitted
by the developer in 1980. Id., at 88.
The new plat proposed the development of 688 units;
the reduction from 736 units represented respondent's concession
that 18.5 acres should be removed from the acreage because that land had
been taken for the parkway. Id.,
at 424, 425.
On June 18, the
Commission disapproved the plat for eight reasons, including the density
and grade problems cited in the October 1980 denial, as well as the
objections the Temple Hills Committee had raised in 1980 to the length of
two cul-de-sacs, the grade of various roads, the lack of fire protection,
the disrepair of the main-access road, and the minimum frontage.
Id., at 370. The Commission declined to follow the decision of the
Board of Zoning Appeals that the plat
182 should be evaluated by the 1973 zoning ordinance and subdivision
regulations, stating that the Board lacked jurisdiction to hear appeals
from the Commission. Id., at
Respondent then filed
this suit in the United States District Court for the Middle District of
Tennessee, pursuant to 42 U.S.C. § 1983, alleging that the Commission had
taken its property without just compensation and asserting that the
Commission should be estopped under state law from denying approval of the
project. [FN4] Respondent's
expert witnesses testified that the design that would meet each of the
Commission's eight objections would allow respondent to build only 67
units, 409 fewer than respondent claims it is entitled to build, [FN5] and
that the development of only 67 sites would result in a net loss of over
$1 million. App. 377.
Petitioners' expert witness, on the other hand, testified that the
Commission's eight objections could be overcome by a design that would
allow development of approximately 300 units.
FN4. Respondent also alleged that the Commission's refusal to
approve the plat violated respondent's rights to substantive and
procedural due process and denied it equal protection.
The District Court granted a directed verdict to petitioners on the
substantive due process and equal protection claims, and the jury found
that respondent had not been denied procedural due process.
App. 32. Those
issues are not before us.
FN5. Id., at 377; Tr.
claimed it was entitled to build 476 units:
the 736 units allegedly approved in 1973 minus the 212 units
already built or given final approval and minus 48 units that were no
longer available because land had been taken from the subdivision for the
After a 3-week trial,
the jury found that respondent had been denied the
"economically viable" use of its property in violation of
the Just Compensation Clause, and that the Commission was estopped under
state law from requiring respondent to comply with the current zoning
ordinance and 183 subdivision
regulations rather than those in effect in 1973.
App. 32-33. The
jury awarded damages of $350,000 for the temporary taking of respondent's
property. Id., at 33-34.
[FN6] The court entered a
permanent injunction requiring the Commission to apply the zoning
ordinance and subdivision regulations in effect in 1973 to Temple Hills,
and to approve the plat submitted in 1981.
Id., at 34.
FN6. Although the record is less than clear, it appears that the
jury calculated the $350,000 award by determining a fair rate of return on
the value of the property for the time between the Commission's rejection
of the preliminary plat in 1980 and the jury's verdict in March 1982.
See id., at 800-805; Tr.
of Oral Arg. 25, 32-33. In
light of our disposition of the case, we need not reach the question
whether that measure of damages would provide just compensation, or
whether it would be appropriate if respondent's cause of action were
viewed as stating a claim under the Due Process Clause.
The court then granted
judgment notwithstanding the verdict in favor of the Commission on the
taking claim, reasoning in part that respondent was unable to derive
economic benefit from its property on a temporary basis only, and that
such a temporary deprivation, as a matter of law, cannot constitute a
taking. Id., at 36, 41. In
addition, the court modified its permanent injunction to require the
Commission merely to apply the zoning ordinance and subdivision
regulations in effect in 1973 to the project, rather than requiring
approval of the plat, in order to allow the parties to resolve
"legitimate technical questions of whether plaintiff meets the
requirements of the 1973 regulations," id., at 42, through the
applicable state and local appeals procedures. [FN7]
FN7. While respondent's appeal was pending before the Court of
Appeals, the parties reached an agreement whereby the Commission granted a
variance from its cul-de-sac and road-grade regulations and approved the
development of 476 units, and respondent agreed, among other things, to
rebuild existing roads, and build all new roads, according to current
regulations. App. to Brief
for Petitioners 35.
A divided panel of the
United States Court of Appeals for the Sixth Circuit reversed.
729 F.2d 402 (CA6 1984).
The court 184 held that application of government regulations affecting an
owner's use of property may constitute a taking if the regulation denies
the owner all "economically viable" use of the land, and that
the evidence supported the jury's finding that the property had no
economically feasible use during the time between the Commission's refusal
to approve the preliminary plat and the jury's verdict. Id., at 405-406.
Rejecting petitioners' argument that respondent never had submitted
a plat that complied with the 1973 regulations, and thus never had
acquired rights that could be taken, the court held that the jury's
estoppel verdict indicates that the jury must have found that respondent
had acquired a "vested right" under state law to develop the
subdivision according to the plat submitted in 1973. Id., at 407.
Even if respondent had no vested right under state law to finish
the development, the jury was entitled to find that respondent had a
reasonable investment-backed expectation that the development could be
completed, and that the actions of the Commission interfered with that
The court rejected the
District Court's holding that the taking verdict could not stand as a
matter of law. A
temporary denial of property could be a taking, and was to be analyzed in
the same manner as a permanent taking. Finally, relying upon the dissent
in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 636, 101
S.Ct. 1287, 1296, 67 L.Ed.2d 551 (1981), the court determined that damages
are required to compensate for a temporary taking. [FN8]
FN8. Judge Wellford dissented.
729 F.2d, at 409. He
did not agree that the evidence supported a finding that respondent's
property had been taken, in part because there was no evidence that
respondent had formally requested a variance from the regulations.
Even if there was a temporary denial of the "economically
viable" use of the property, Judge Wellford would have held that mere
fluctuations in value during the process of governmental decisionmaking
are " 'incidents of ownership' " and cannot be considered a
" 'taking,' " id., at 410, quoting Agins v. Tiburon, 447 U.S.
255, 263, n. 9, 100 S.Ct. 2138, 2143, n. 9, 65 L.Ed.2d 106 (1980). He also did not agree that damages could be awarded to
remedy any taking, reasoning that the San Diego Gas dissent does not
reflect the views of the majority of this Court, and that this Court never
has awarded damages for a temporary taking where there was no invasion,
physical occupation, or "seizure and direction" by the State of
the landowner's property. 729
F.2d, at 411.
We granted certiorari
to address the question whether Federal, State, and Local governments must
pay money damages to a landowner whose property allegedly has been
"taken" temporarily by the application of government
regulations. 469 U.S.
815, 105 S.Ct. 80, 83 L.Ed.2d 28 (1984). Petitioners and their amici
contend that we should answer the question in the negative by ruling that
government regulation can never effect a "taking" within the
meaning of the Fifth Amendment.
They recognize that government regulation may be so restrictive
that it denies a property owner all reasonable beneficial use of its
property, and thus has the same effect as an appropriation of the property
for public use, which concededly would be a taking under the Fifth
Amendment. According to
petitioners, however, regulation that has such an effect should not be
viewed as a taking. Instead,
such regulation should be viewed as a violation of the Fourteenth
Amendment's Due Process Clause, because it is an attempt by government to
use its police power to effect a result that is so unduly oppressive to
the property owner that it constitutionally can be effected only through
the power of eminent domain. Violations of the Due Process Clause, petitioners'
argument concludes, need not be remedied by "just compensation."
The Court twice has
left this issue undecided. San
Diego Gas & Electric Co. v. San Diego, supra;
Agins v. Tiburon, 447 U.S. 255, 263, 100 S.Ct. 2138, 2143, 65
L.Ed.2d 106 (1980). Once
again, we find that the question is not properly presented, and must be
left for another day. For
whether we examine the Planning Commission's application of its
regulations under Fifth Amendment "taking" jurisprudence, or
under the precept of due process, we conclude that respondent's claim is
We examine the
posture of respondent's cause of action first by viewing it as stating a
claim under the Just Compensation Clause.
This Court often has referred to 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), as a "taking."
See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1004-1005,
104 S.Ct. 2862, 2873-2874, 81 L.Ed.2d 815 (1984);
Agins v. Tiburon, 447 U.S., at 260, 100 S.Ct., at 2141;
PruneYard Shopping Center v. Robins, 447 U.S. 74, 83, 100 S.Ct.
2035, 2041, 64 L.Ed.2d 741 (1980); Kaiser
Aetna v. United States, 444 U.S. 164, 174, 100 S.Ct. 383, 390, 62 L.Ed.2d
332 (1979); Andrus v. Allard, 444 U.S. 51, 65-66, 100 S.Ct. 318, 326-327,
62 L.Ed.2d 210 (1979); Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646,
2659, 57 L.Ed.2d 631 (1978); Goldblatt
v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962);
United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78
S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958).
Even assuming that those decisions meant to refer literally to the
Taking Clause of the Fifth Amendment, and therefore stand for the
proposition that regulation may effect a taking for which the Fifth
Amendment requires just compensation, see San Diego, 450 U.S., at 647-653,
101 S.Ct., at 1302-1304 (dissenting opinion), and even assuming further
that the Fifth Amendment requires the payment of money damages to
compensate for such a taking, the jury verdict in this case cannot be
respondent has not yet obtained a final decision regarding the application
of the zoning ordinance and subdivision regulations to its property, nor
utilized the procedures Tennessee provides for obtaining just
compensation, respondent's claim is not ripe.
As the Court has made
clear in several recent decisions, a claim that the application of
government regulations effects a taking of a property interest is not ripe
until the government entity charged with implementing the regulations has
reached a final decision regarding the application of the regulations to
the property at issue. In
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S.
264, 101 S.Ct. 2352, 69 L.Ed.2d 1
187 1981), for example, the Court rejected a claim that the Surface
Mining Control and Reclamation Act
of 1977, 91 Stat. 447, 30 U.S.C. § 1201 et seq., effected a taking
"There is no
indication in the record that appellees have availed themselves of the
opportunities provided by the Act to obtain administrative relief by
requesting either a variance from the approximate-original-contour
requirement of § 515(d) or a waiver from the surface mining restrictions
in § 522(e). If [the
property owners] were to seek administrative relief under these
procedures, a mutually acceptable solution might well be reached with
regard to individual properties, thereby obviating any need to address the
constitutional questions. The potential for such administrative solutions
confirms the conclusion that the taking issue decided by the District
Court simply is not ripe for judicial resolution."
452 U.S., at 297, 101 S.Ct., at 2371 (footnote omitted).
Similarly, in Agins v. Tiburon, supra, the Court held that a
challenge to the application of a zoning ordinance was not ripe because
the property owners had not yet submitted a plan for development of their
property. 447 U.S., at 260,
100 S.Ct., at 2141. In
Penn Central Transp. Co. v. New York City, supra, the Court declined to
find that the application of New York City's Landmarks Preservation Law to
Grand Central Terminal effected a taking because, although the Landmarks
Preservation Commission had disapproved a plan for a 50-story office
building above the terminal, the property owners had not sought approval
for any other plan, and it therefore was not clear whether the Commission
would deny approval for all uses that would enable the plaintiffs to
derive economic benefit from the property.
438 U.S., at 136-137, 98 S.Ct., at 2665-2666.
Respondent's claim is in a posture similar to the claims the
Court held premature in Hodel.
Respondent has submitted a plan for developing its property, and
thus has passed beyond the Agins threshold.
But, like the Hodel plaintiffs,
188 respondent did not then seek variances that would have allowed it
to develop the property according to its proposed plat, notwithstanding
the Commission's finding that the plat did not comply with the zoning
ordinance and subdivision regulations.
It appears that variances could have been granted to resolve at
least five of the Commission's eight objections to the plat.
The Board of Zoning Appeals had the power to grant certain
variances from the zoning ordinance, including the ordinance's density
requirements and its restriction on placing units on land with slopes
having a grade in excess of 25%.
Tr. 1204-1205; see n.
3, supra. The
Commission had the power to grant variances from the subdivision
regulations, including the cul-de-sac, road-grade, and frontage
requirements. [FN9] Indeed,
the Temple Hills Committee had recommended that the Commission grant
variances from those regulations.
App. 304-306. Nevertheless,
respondent did not seek variances from either the Board or the Commission.
FN9. The subdivision
regulations in effect in 1980 and 1981 provided:
be granted under the following conditions:
the subdivider can show that strict adherence to these regulations would
cause unnecessary hardship, due to conditions beyond the control of the
subdivider. If the
subdivider creates the hardship due to his design or in an effort to
increase the yield of lots in his subdivision, the variance will not be
"Where the Planning Commission decides that there are
topographical or other conditions peculiar to the site, and a departure
from their regulations will not destroy their intent."
CA App. 932.
Respondent argues that
it "did everything possible to resolve the conflict with the
commission," Brief for Respondent 42, and that the Commission's
denial of approval for respondent's plat was equivalent to a denial of
variances. The record does not support respondent's claim, however. There is no evidence that respondent applied to the
Board of Zoning Appeals for variances from the zoning ordinance.
As noted, the developer sought a ruling that the ordinance in
effect in 1973 should be applied, but neither respondent nor the developer
189 sought a variance from the requirements
of either the 1973 or 1980 ordinances.
Further, although the subdivision regulations in effect in 1981
required that applications to the Commission for variances be in writing,
and that notice of the application be given to owners of adjacent
property, [FN10] the record contains no evidence that respondent ever
filed a written request for variances from the cul-de-sac, road-grade, or
frontage requirements of the subdivision regulations, or that respondent
ever gave the required notice. [FN11]
App. 212‑213; see
also Tr. 1255-1257.
FN10. The Commission's regulations required that
"Each applicant must file with the Planning Commission a
written request for variance stating at least the following: "a. The
"b. Reason or circumstances requiring the variance.
"c. Notice to the adjacent property owners that a variance is
"Without the application any condition shown on the plat which
would require a variance will constitute grounds for disapproval of the
plat." Id., at 933.
FN11. Respondent's predecessor-in-interest requested, and
apparently was granted, a waiver of the 10% road-grade regulation for
section VI of the subdivision.
See Plaintiff's Exs. 1078, 9094.
The predecessor-in-interest wrote a letter on January 3, 1980, that
respondent contends must be construed as a request for a waiver of the
road-grade regulation for the entire subdivision:
"I contend that the road grade and slope question ... is
adequately provided for by both the [subdivision] Regulations and the
Zoning Ordinance. In
both, the Planning Commission is given the authority to approve roads that
have grades in excess of 10%.
"In our particular case, it was common knowledge from the
beginning that due to the character of the land involved that there would
be roads that exceeded the 10% slope.
In fact in our first Section there is a stretch of road that
exceeds the 10%; therefore I
respectfully request that this letter be made an official part of the
Planning Commission Minutes of January 3, 1980 and further the Zoning
Approval which has been granted be allowed to stand without any
Ex. 96. Even assuming, arguendo, that the letter constituted a request for
a variance, respondent's taking claim nevertheless is not ripe.
There is no evidence that respondent requested variances from the
regulations that formed the basis of the other objections raised by the
Commission, such as those regulating the length of cul-de-sacs.
Absent a final decision regarding the application of all eight of
the Commission's objections, it is impossible to tell whether the land
retained any reasonable beneficial use or whether respondent's expectation
interests had been destroyed.
190 Indeed, in a letter
to the Commission written shortly before its June 18, 1981, meeting to
consider the preliminary sketch, respondent took the position that it
would not request variances from the Commission until after the Commission
approved the proposed plat:
stands ready to work with the Planning Commission concerning the necessary
variances. Until the
initial sketch is renewed, however, and the developer has an opportunity
to do detailed engineering work it is impossible to determine the exact
nature of any variances that may be needed." Plaintiff's Ex. 9028, p.
The Commission's regulations clearly indicated that unless a
developer applied for a variance in writing and upon notice to other
property owners, "any condition shown on the plat which would require
a variance will constitute grounds for disapproval of the plat."
CA App. 933. Thus, in the face of respondent's refusal to follow the
procedures for requesting a variance, and its refusal to provide specific
information about the variances it would require, respondent hardly can
maintain that the Commission's disapproval of the preliminary plat was
equivalent to a final decision that no variances would be granted.
As in Hodel, Agins, and Penn Central, then, respondent has not
yet obtained a final decision regarding how it will be allowed to develop
its property. Our reluctance to examine taking claims until such a final
decision has been made is compelled by the very nature of the inquiry
required by the Just Compensation Clause.
Although "[t]he question of what constitutes a 'taking' for
purposes of the Fifth Amendment has proved to be a problem of considerable
Penn Central Transp. Co. v. New York City, 438 U.S., at 123, 98
S.Ct., at 2659, this Court consistently
has indicated that among the factors of particular significance in the
inquiry are the economic impact of the challenged action and the extent to
which it interferes with reasonable investment-backed expectations.
Id., at 124, 98 S.Ct., at 2659.
See also Ruckelshaus v. Monsanto Co., 467 U.S., at 1005, 104 S.Ct.,
at 2874; PruneYard Shopping
Center v. Robins, 447 U.S., at 83, 100 S.Ct., at 2041;
Kaiser Aetna v. United States, 444 U.S., at 175, 100 S.Ct., at 390.
Those factors 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.
Here, for example, the jury's verdict indicates only that it
found that respondent would be denied the economically feasible use of its
property if it were forced to develop the subdivision in a manner that
would meet each of the Commission's eight objections.
It is not clear whether the jury would have found that the
respondent had been denied all reasonable beneficial use of the property
had any of the eight objections been met through the grant of a variance.
Indeed, the expert witness who testified regarding the economic
impact of the Commission's actions did not itemize the effect of each of
the eight objections, so the jury would have been unable to discern how a
grant of a variance from any one of the regulations at issue would have
affected the profitability of the development.
App. 377; see also
id., at 102-104. Accordingly, until the Commission determines that no
variances will be granted, it is impossible for the jury to find, on this
record, whether respondent "will be unable to derive economic
benefit" from the land. [FN12]
FN12. The District Court's
instructions allowed the jury to find a taking if it ascertained
"that the regulations in question as applied to [respondent's]
property denied [respondent] economically viable use of its
2016. That instruction
seems to assume that respondent's taking theory was simply that its
property was rendered valueless by the application of new zoning laws and
subdivision regulations in 1980. The record indicates, however, that respondent's claim
was based upon a state law theory of "vested rights," and that
the alleged "taking" was the Commission's interference with
respondent's "expectation interest" in completing the
development according to its original plans.
The evidence that it was not economically feasible to develop just
the 67 units respondent claims the Commission's actions would limit it to
developing was based upon the cost of building the development according
to the original plan. The
expected income from the sale of the 67 units apparently was measured
against the cost of the 27-hole golf course and the cost of installing
water and sewer connections for a large development that would not have
had to have been installed for a development of only 67 units. App.
191-197; Tr. 690;
see also id., at 2154-2155.
Thus, the evidence appears to indicate that it would not be
profitable to develop 67 units because respondent had made various
expenditures in the expectation that the development would contain far
more units; the evidence does
not appear to support the proposition that, aside from those
"reliance" expenditures, development of 67 units on the property
would not be economically feasible. We express no view of the propriety of
applying the "economic viability" test when the taking claim is
based upon such a theory of "vested rights" or "expectation
Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210
(1979) (analyzing a claim that Government regulations effected a taking by
reducing expected profits). It
is sufficient for our purposes to note that whether the
"property" taken is viewed as the land itself or respondent's
expectation interest in developing the land as it wished, it is impossible
to determine the extent of the loss or interference until the Commission
has decided whether it will grant a variance from the application of the
Respondent asserts that it should not be required to seek variances from
the regulations because its suit is predicated upon 42 U.S.C. § 1983, and
there is no requirement that a plaintiff exhaust administrative remedies
before bringing a § 1983 action. Patsy
v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172
(1982). The question
whether administrative remedies must be exhausted is conceptually
distinct, however, from the question whether an administrative action must
be final before it is judicially reviewable.
See FTC v. Standard Oil Co., 449 U.S. 232, 243, 101 S.Ct. 488, 495,
66 L.Ed.2d 416 (1980); Bethlehem
Steel Corp. v. EPA, 669 F.2d 903, 908 (CA3 1982).
See generally, 13A C.
Wright, A. Miller & E. Cooper, Federal Practice and
193 Procedure § 3532.6 (1984).
While the policies underlying the two concepts often overlap, the
finality requirement is concerned with whether the initial decisionmaker
has arrived at a definitive position on the issue that inflicts an actual,
concrete injury; the
exhaustion requirement generally refers to administrative and judicial
procedures by which an injured party may seek review of an adverse
decision and obtain a remedy if the decision is found to be unlawful or
otherwise inappropriate. Patsy
concerned the latter, not the former.
difference is best illustrated by comparing the procedure for seeking a
variance with the procedures that, under Patsy, respondent would not be
required to exhaust. While
it appears that the State provides procedures by which an aggrieved
property owner may seek a declaratory judgment regarding the validity of
zoning and planning actions taken by county authorities, see Fallin v.
Knox County Bd. of Comm'rs, 656 S.W.2d 338 (Tenn.1983); Tenn.Code Ann.
§§ 27-8-101, 27-9-101 to 27-9-113, and 29-14-101 to 29-14-113 (1980 and
Supp.1984), respondent would not be required to resort to those procedures
before bringing its § 1983 action, because those procedures clearly are
remedial. Similarly, respondent would not be required to appeal
the Commission's rejection of the preliminary plat to the Board of Zoning
Appeals, because the Board was empowered, at most, to review that
rejection, not to participate in the Commission's decisionmaking.
to those procedures would result in a judgment whether the Commission's
actions violated any of respondent's rights.
In contrast, resort to the procedure for obtaining variances would
result in a conclusive determination by the Commission whether it would
allow respondent to develop the subdivision in the manner respondent
Commission's refusal to approve the preliminary plat does not determine
that issue; it prevents respondent from developing its subdivision
without obtaining the necessary variances, but leaves open the possibility
that respondent 194 may develop
the subdivision according to its plat after obtaining the variances.
In short, the Commission's denial of approval does not conclusively
determine whether respondent will be denied all reasonable beneficial use
of its property, and therefore is not a final, reviewable decision.
second reason the taking claim is not yet ripe is that respondent did not
seek compensation through the procedures the State has provided for doing
so. [FN13] The Fifth
Amendment does not proscribe the taking of property;
it proscribes taking without just compensation.
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452
U.S., at 297, n. 40, 101 S.Ct., at 2371, n. 40. Nor does the Fifth Amendment require that just
compensation be paid in advance of, or contemporaneously with, the taking;
all that is required is that a " 'reasonable, certain and
adequate provision for obtaining compensation' " exist at the time of
the taking. Regional Rail
Reorganization Act Cases, 419 U.S. 102, 124-125, 95 S.Ct. 335, 349, 42
L.Ed.2d 320 (1974) (quoting Cherokee Nation v. Southern Kansas R. Co., 135
U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890) ).
See also Ruckelshaus v. Monsanto Co., 467 U.S., at 1016, 104 S.Ct.,
at 2879-2880; Yearsley v. W.A.
Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 414, 84 L.Ed. 554 (1940);
Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267, 269, 76 L.Ed.
637 (1932). If the
government has provided an adequate process for obtaining compensation,
and if resort to that process "yield[s] just compensation," then
the property owner "has no claim against
195 the Government" for a taking.
Monsanto, 467 U.S., at 1013, 1018, n. 21, 104 S.Ct., at 2878, 2881,
n. 21. Thus, we have
held that taking claims against the Federal Government are premature until
the property owner has availed itself of the process provided by the
Tucker Act, 28 U.S.C. § 1491. Monsanto, 467 U.S., at 1016-1020, 104 S.Ct.,
at 2880-2882. Similarly, 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.
FN13. Again, it is
necessary to contrast the procedures provided for review of the
Commission's actions, such as those for obtaining a declaratory judgment,
see Tenn.Code Ann. §§ 29-14-101 to 29-14-113 (1980), with procedures
that allow a property owner to obtain compensation for a taking.
Exhaustion of review procedures is not required.
See Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct.
2557, 73 L.Ed.2d 172 (1982). As
we have explained, however, because the Fifth Amendment proscribes takings
without just compensation, no constitutional violation occurs until just
compensation has been denied. The
nature of the constitutional right therefore requires that a property
owner utilize procedures for obtaining compensation before bringing a §
The recognition that a property owner has not suffered a
violation of the Just Compensation Clause until the owner has
unsuccessfully attempted to obtain just compensation through the
procedures provided by the State for obtaining such compensation is
analogous to the Court's holding in Parratt v. Taylor, 451 U.S. 527, 101
S.Ct. 1908, 68 L.Ed.2d 420 (1981).
There, the Court ruled that a person deprived of property through a
random and unauthorized act by a state employee does not state a claim
under the Due Process Clause merely by alleging the deprivation of
property. In such a
situation, the Constitution does not require predeprivation process
because it would be impossible or impracticable to provide a meaningful
hearing before the deprivation.
Instead, the Constitution is satisfied by the provision of
meaningful postdeprivation process.
Thus, the State's action is not "complete" in the sense
of causing a constitutional injury "unless or until the State fails
to provide an adequate postdeprivation remedy for the property loss."
Hudson v. Palmer, 468 U.S. 517, 532, n. 12, 104 S.Ct. 3194, 3203,
n. 12, 82 L.Ed.2d 393 (1984). Likewise, because the Constitution does not
require pretaking compensation, and is instead satisfied by a reasonable
and adequate provision for obtaining compensation after the taking, the
State's action here is not "complete" until the State fails to
provide adequate compensation for the taking. [FN14]
The analogy to Parratt is imperfect because Parratt does not extend to
situations such as those involved in Logan v. Zimmerman Brush Co., 455
U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), in which the deprivation
of property is effected pursuant to an established state policy or
procedure, and the State could provide predeprivation process. Unlike the
Due Process Clause, however, the Just Compensation Clause has never been
held to require pretaking process or compensation. Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1016, 104 S.Ct. 2862, 2879‑-2880, 81 L.Ed.2d 815
(1984). Nor has the Court
ever recognized any interest served by pretaking compensation that could
not be equally well served by post-taking compensation.
Under the Due Process Clause, on the other hand, the Court has
recognized that predeprivation process is of "obvious value in
reaching an accurate decision," that the "only meaningful
opportunity to invoke the discretion of the decisionmaker is likely to be
before the [deprivation] takes effect," Cleveland Board of Education
v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494
(1985) and that predeprivation process may serve the purpose of making an
individual feel that the government has dealt with him fairly. See Carey v. Piphus, 435 U.S. 247, 262, 98 S.Ct. 1042,
1051, 55 L.Ed.2d 252 (1978). Thus,
despite the Court's holding in Logan, Parratt's reasoning applies here by
analogy because of the special nature of the Just Compensation Clause.
196 Under Tennessee law, a property owner may bring an inverse
condemnation action to obtain just compensation for an alleged taking of
property under certain circumstances.
Tenn.Code Ann. § 29-16-123 (1980). The statutory scheme for
eminent domain proceedings outlines the procedures by which government
entities must exercise the right of eminent domain.
§§ 29-16-101 to 29-16-121.
The State is prohibited from "enter[ing] upon [condemned]
land" until these procedures have been utilized and compensation has
been paid the owner, § 29-16-122, but if a government entity does take
possession of the land without
following the required procedures,
"the owner of
such land may petition for a jury of inquest, in which case the same
proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way...."
The Tennessee state courts have interpreted § 29-16-123 to
allow recovery through inverse condemnation where the "taking"
is effected by restrictive zoning laws or development regulations.
See Davis v. Metropolitan Govt. of Nashville, 620 S.W.2d 532, 533-534
(Tenn.App.1981); Speight v. Lockhart, 524 S.W.2d 249 (Tenn.App.1975).
Respondent 197 has not shown that the inverse condemnation procedure is
unavailable or inadequate, and until it has utilized that procedure, its
taking claim is premature.
We turn to an analysis of respondent's claim under the due process
theory that petitioners espouse.
As noted, under that theory government regulation does not effect a
taking for which the Fifth Amendment requires just compensation; instead, regulation that goes so far that it has the same
effect as a taking by eminent domain is an invalid exercise of the police
power, violative of the Due Process Clause of the Fourteenth Amendment.
Should the government wish to accomplish the goals of such
regulation, it must proceed through the exercise of its eminent domain
power, and, of course, pay just compensation for any property taken.
The remedy for a regulation that goes too far, under the due
process theory, is not "just compensation," but invalidation of
the regulation, and if authorized and appropriate, actual damages. [FN15]
FN15. See generally F.
Bosselman, D. Callies, & J. Banta, The Taking Issue 238-255 (1973);
Sterk, Government Liability for Unconstitutional Land Use
Regulation, 60 Ind.L.J. 113 (1984); Oakes,
"Property Rights" in Constitutional Analysis Today, 56
Wash.L.Rev. 583 (1981); Stoebuck,
Police Power, Takings, and Due Process, 37 Wash. & Lee L.Rev. 1057
(1980); Comment, Testing the Constitutional Validity of Land Use
Regulations: Substantive Due
Process as a Superior Alternative to Takings Analysis, 57 Wash.L.Rev. 715
(1982); Comment, Just
Compensation or Just Invalidation: The
Availability of a Damages Remedy in Challenging Land Use Regulations, 29
UCLA L.Rev. 711 (1982); cf.
Costonis, "Fair" Compensation and the Accommodation Power:
Antidotes for the Taking Impasse in Land Use Controversies, 75
Colum.L.Rev. 1021 (1975) (proposing that regulation be viewed as neither
an exercise of the police power, nor as a taking, but as an exercise of an
"accommodation" power, which would require government to offer
"fair compensation" for regulation that "goes too
notion that excessive regulation can constitute a "taking" under
the Just Compensation Clause stems from language in Pennsylvania Coal Co.
v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322
198 1922). See San
Diego, 450 U.S., at 649, 101 S.Ct., at 1302 (dissenting opinion).
Writing for the Pennsylvania Coal Court, Justice Holmes stated:
"The general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too far it will be
recognized as a taking." 260
U.S., at 415, 43 S.Ct., at 160.
Those who argue that excessive regulation should be considered a
violation of the Due Process Clause rather than a "taking"
assert that Pennsylvania Coal used the word "taking" not in the
literal Fifth Amendment sense, but as a metaphor for actions having the
same effect as a taking by eminent domain.
See, e.g., Agins v. City of Tiburon, 24 Cal.3d 266, 274, 157
Cal.Rptr. 372, 376, 598 P.2d 25, 29 (1979), aff'd, 447 U.S. 255, 100 S.Ct.
2138, 65 L.Ed.2d 106 (1980); Fred F. French Investing Co. v. City of New York, 39 N.Y.2d
587, 594, 35 N.Y.S.2d 5, 9, 350 N.E.2d 381, 385 (1976). Because no issue was presented in Pennsylvania Coal
regarding compensation, it is argued, the Court was free to use the term
Pennsylvania Coal, homeowners sought to enjoin a coal company from mining
coal under their house in violation of Pennsylvania's Kohler Act, which
prohibited the mining of coal that would cause the subsidence of any home
or industrial or mercantile establishment.
In defense, the coal company argued not that the regulation itself
was a "taking" for which just compensation was required, but
that "[i]f surface support in the anthracite district is necessary
for public use, it can constitutionally be acquired only by condemnation
with just compensation to the parties affected."
260 U.S., at 400, 43 S.Ct., at 159.
due process argument finds support, we are told, in the fact that the
Pennsylvania Coal Court framed the question presented as "whether the
police power can be stretched so far" as to destroy property rights,
260 U.S., at 413, 43 S.Ct. at 159, and by the Court's emphasis upon the
need to proceed by eminent domain rather than by regulation when the
effect of the regulation would be to destroy property interests:
hardly could go on if to some extent values incident to property could not
be diminished without paying for every such change in the general law.
As long recognized, some values are enjoyed under an implied
limitation and must yield to the police power.
But 199 obviously the
implied limitation must have its limits, or the contract and due process
clauses are gone. One
fact for consideration in determining such limits is the extent of the
diminution. When it
reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to sustain the act." Ibid. (Emphasis
Further, in earlier cases involving the constitutional
limitations on the exercise of police power, Justice Holmes' opinions for
the Court made clear that the Court did not view overly restrictive
regulation as triggering an award of compensation, but as an invalid means
of accomplishing what constitutionally can be accomplished only through
the exercise of eminent domain.
See, e.g., Block v. Hirsh, 256 U.S. 135, 156, 41 S.Ct. 458, 459, 65
L.Ed. 865 (1921); Hudson
County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52
L.Ed. 828 (1908); Martin v.
District of Columbia, 205 U.S. 135, 139, 27 S.Ct. 440, 441, 51 L.Ed. 743
We need not pass upon the merits of petitioners' arguments,
for even if viewed as a question of due process, respondent's claim is
premature. Viewing a
regulation that "goes too far" as an invalid exercise of the
police power, rather than as a "taking" for which just
compensation must be paid, does not resolve the difficult problem of how
to define "too far," that is, how to distinguish the point at
which regulation becomes so onerous that it has the same effect as an
appropriation of the property through eminent domain or physical
possession. [FN17] As we have
noted, resolution of that 200
question depends, in significant part, upon an analysis of the effect the
Commission's application of the zoning ordinance and subdivision
regulations had on the value of respondent's property and investment-backed
profit expectations. That
effect cannot be measured until a final decision is made as to how the
regulations will be applied to respondent's property.
No such decision had been made at the time respondent filed its §
1983 action, because respondent failed to apply for variances from the
FN17. The attempt to
determine when regulation goes so far that it becomes, literally or
figuratively, a "taking" has been called the "lawyer's
equivalent of the physicist's hunt for the quark."
C. Haar, Land-Use Planning 766 (3d ed. 1976). See generally Bauman, The Supreme Court, Inverse
Condemnation and the Fifth Amendment:
Justice Brennan Confronts the Inevitable in Land Use Controls, 15
Rutgers L.J. 15, 20-32 (1983); Stoebuck,
supra, at 1059-1079; Berger,
A Policy Analysis of the Taking Problem, 49 N.Y.U.L.Rev. 165 (1974);
Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149
(1971); Van Alstyne, Taking
or Damaging by Police Power: The
Search for Inverse Condemnation Criteria, 44 S.Cal.L.Rev. 1 (1971); Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just
Compensation" Law, 80 Harv.L.Rev. 1165 (1967);
Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).
sum, respondent's claim is premature, whether it is analyzed as a
deprivation of property without due process under the Fourteenth
Amendment, or as a taking under the
Just Compensation Clause of the Fifth Amendment. [FN18]
We therefore reverse the judgment of the Court of Appeals and
remand the case for further proceedings consistent with this opinion.
FN18. In light of
this disposition, we need not reach the question whether the jury's
verdict that respondent's expectation interest had been "taken,"
see n. 12, supra, can stand in light of the absence of any discussion in
the jury instructions about the reasonableness of the alleged expectation
Ruckelshaus v. Monsanto Co., 467 U.S., at 1005-1006, 104 S.Ct., at
2874-2875; Andrus v. Allard,
444 U.S., at 66, 100 S.Ct., at 327.
Nor do we need to reach the question whether the jury was properly
allowed to determine the economic feasibility of the property, or the
extent of interference with respondent's expectation interests, by
reference to only that portion of the development purchased by respondent,
rather than by reference to the development as a whole.
Cf. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 130,
98 S.Ct. 2646, 2662, 57 L.Ed.2d 631 (1978).
It is so ordered.
Justice WHITE dissents from the holding that the issues in
this case are not ripe for decision at this time.
Justice POWELL took no part in the decision of this case.
Justice BRENNAN, with whom Justice MARSHALL joins, concurring.
The Court today discusses two methods for analyzing the
constitutional injury that may result from the temporary application of
government regulations denying property any economically viable use.
The Court concludes that, under either approach, the respondent's
claim is premature because the petitioner Williamson County Regional
Planning Commission's 1981 disapproval of the respondent's preliminary
plat did not constitute a final reviewable decision given the availability
of a variance procedure that the respondent did not pursue.
Ante, at 3116-3117, 3123.
I join the Court's opinion without, however, departing from my
views set forth in San Diego Gas & Electric Co. v. San Diego, 450 U.S.
621, 636, 101 S.Ct. 1287, 1296, 67 L.Ed.2d 551 (1981) (BRENNAN, J.,
"[i]nvalidation unaccompanied by payment of damages would hardly
compensate the landowner for any economic loss suffered during the time
his property was taken," I believe that "once a court
establishes that there was a regulatory 'taking,' the Constitution demands
that the government entity pay just compensation for the period commencing
on the date the regulation first effected the 'taking,' and ending on the
date the government entity chooses to rescind or otherwise amend the
regulation." Id., at
653, 655, 101 S.Ct., at 1304, 1305.
As the Court demonstrates in this case, however, "the
Commission's denial of approval does not conclusively determine whether
respondent will be denied all reasonable beneficial use of its property,
and therefore is not a final, reviewable decision."
Ante, at 3120. In
addition, "[r]espondent has not shown that [Tennessee's] inverse
condemnation procedure is unavailable or inadequate, and until it has
utilized that procedure, its taking claim is premature."
Ante, at 3122. Accordingly,
I join the Court's opinion reversing the judgment of the Court of Appeals
for the Sixth Circuit.
Justice STEVENS, concurring in the judgment.
Zoning restrictions are a species of governmental regulation
that may impair the value of private property.
The impairment may occur in one of two ways. The substance of a
restriction may permanently curtail the economic value of the property.
Or the procedures that must be employed, either to obtain
permission to use property in a particular way or to remove an unlawful
restriction on its use, may temporarily deprive the owner of a fair return
on his investment. For
convenience, I will refer to the former category as "permanent
harms" and the latter as "temporary harms."
Permanent harms fall into three subcategories.
They may be impermissible even if
the government is willing to pay for them. [FN1]
They may be permissible provided that the property owner is
compensated for his loss. [FN2] Or
they may be permissible even if no compensation at all is paid. [FN3]
The permanent harm inflicted by the zoning regulations at issue in
this case is either in the second or the third subcategory.
As the Court demonstrates, until all available remedies have been
exhausted, all we can say with any certainty is that petitioners may be
required to abandon some of their restrictions upon respondent unless they
are prepared to compensate respondent for whatever permanent harm they may
For example, even if the State is willing to compensate me, it has no
right to appropriate my property because it does not agree with my
political or religious views.
FN2. See, e.g., United States v. 50 Acres of Land, 469 U.S. 24, 105
S.Ct. 451, 83 L.Ed.2d 376 (1984).
FN3. 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).
In most litigation
involving a challenge to a governmental regulation -- and this case is no
exception -- the government contends that the public interest justifies
the harm to the property owner and that no compensation need be paid.
If the government fails to convince the court that such is the case
-- that is, if it is not entitled to impose an uncompensated
203 permanent harm on the property owner -- the court can express its
ruling on the merits by stating that the regulation is invalid, or by
characterizing it as a "taking." In either event, the essence of
the holding is a conclusion that the harm caused by the regulation is one
that the government may not impose unless it is prepared to pay for it.
In my opinion, when such a situation develops, there is nothing in
the Constitution that prevents the government from electing to abandon the
The fact that a jurist as eminent as Oliver Wendell Holmes
characterized a regulation that "goes too far" as a
"taking" does not mean that such a regulation may never be
canceled and must always give rise to a right to compensation. [FN4]
FN4. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct.
158, 160, 67 L.Ed. 322 (1922), Justice Holmes' opinion for the Court
stated: "The general
rule at least is, that while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a
taking." As he explained earlier in the opinion, however, all
this implies is that when regulation "reaches a certain magnitude, in
most if not in all cases there must be an exercise of eminent domain and
compensation to sustain the act."
Id., at 413, 43 S.Ct., at 159.
For a complete discussion of this point see Siemon, Of Regulatory
Takings and Other Myths, 1 J. Land Use & Env.L. 105, 110-117 (1985).
To the extent that
this case involves a claim that the respondent has suffered an unlawful
permanent harm -- whether it is called a "taking" or merely an
invalid attempt to regulate -- the Court correctly explains that the issue
is not yet ripe for decision. We
do not yet know whether the harm inflicted by the zoning regulations is
severe enough to lead to the conclusion that the zoning regulations
"go too far." We
do know, however, that the process of determining how far the regulations
do apply to respondent has already caused it a fairly serious harm -- one
that the jury calculated as worth $350,000.
But that harm is in my second major category -- it was a
resulting from a regulatory decision fall into two broad subcategories:
(1) those that result from a
204 deliberate decision to appropriate certain property for public use
for a limited period of time; and
(2) those that are a by-product of governmental decisionmaking.
The first subcategory includes, for example, the condemnation of a
laundry to be used by the military for the duration of World War II,
Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed.
1765 (1949), or the condemnation of the unexpired term of a lease, United
States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311
(1945) -- that type of appropriation is correctly characterized as a
"temporary taking." The second subcategory is fairly characterized as an
inevitable cost of doing
business in a highly regulated society.
Temporary harms in the
second subcategory are an unfortunate but necessary by-product of disputes
over the extent of the government's power to inflict permanent harms
without paying for them. Every
time a property owner is successful, in whole or in part, in a challenge
to a governmental regulation -- whether it be a zoning ordinance, a health
regulation, [FN5] or a traffic law [FN6]
-- he is almost certain to suffer some temporary harm in the process. At the least, he will usually incur significant
litigation expenses and frequently he will incur substantial revenue
losses because the use of his property has been temporarily curtailed
while the dispute is being resolved.
FN5. See, e.g., Industrial Union Dept. v. American Petroleum
Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980).
FN6. See, e.g., Raymond Motor Transportation, Inc. v. Rice, 434
U.S. 429, 98 S.Ct. 787, 54 L.Ed.2d 664 (1978).
In some situations
these temporary harms are compensable.
Statutes authorize the recovery of some costs of litigation,
including attorney's fees. Sometimes the cost of obtaining regulatory
approval is budgeted in an initial development plan and ultimately
recovered from consumers. But
in many cases -- and apparently this is one -- the property owner has no
effective remedy for such a temporary harm
205 except a possible claim that his constitutional rights have been
violated. If his
property is harmed -- even temporarily -- without due process of law, he
may have a claim for damages based on the denial of his procedural rights.
[FN7] But if the procedure
that has been employed to determine whether a particular regulation
"goes too far" is fair, I know of nothing in the Constitution
that entitles him to recover for this type of temporary harm.
FN7. Cf. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1,
98 S.Ct. 1554, 56 L.Ed.2d 30 (1978).
The Due Process Clause
of the Fourteenth Amendment requires a State to employ fair procedures in
the administration and enforcement of all kinds of regulations.
It does not, however, impose the utopian requirement that
enforcement action may not impose any any cost upon the citizen unless the
government's position is completely vindicated.
We must presume that regulatory bodies such as zoning boards,
school boards, and health boards, generally make a good-faith effort to
advance the public interest when they are performing their official
duties, but we must also recognize that they will often become involved in
controversies that they will ultimately lose.
Even though these controversies are costly and temporarily harmful
to the private citizen, as long as fair procedures are followed, I do not
believe there is any basis in the Constitution for characterizing the
inevitable by-product of every such dispute as a "taking" of
In this case there was
a substantial dispute not only about the permissibility of the permanent
harm, but also over the fairness of the procedures employed by
made a claim that its constitutional right to due process of law had been
it might have prevailed on that theory if it could have proved that an
unconstitutional procedure had resulted in an unnecessary delay in
obtaining approval of its development plan.
See ante, at 3115, n. 6.
But its proof failed on that issue.
The jury 206 found "that respondent had not been denied procedural due
process." Ante, at 3114, n. 4.
In my opinion, that finding completely disposes of respondent's
claim for damages based on the temporary harm resulting from the
controversy between respondent and petitioners over the applicability and
enforceability of the various zoning restrictions involved in this case.
There is nothing in
the record to suggest that petitioners have tried to condemn any part of
respondent's property, either permanently
or for a limited period of time.
There was no "temporary taking" of the kind involved in
Kimball Laundry Co., supra, or General Motors Corp., supra.
There has been a finding that there was no violation of procedural
due process. Accordingly, the award of damages cannot stand and the
judgment below must be reversed.