*1 ISLAND v. RHODE et al. PALAZZOLO 28, 2001 June 200 1 Decided February Argued 99-2047. No. *4 Rehnquist, Court, which in of opinion Kennedy, J., delivered Ste- which JJ., Thomas, and Scalia, joined, O’Connoe, and J., and C. Scalia, 632, J., O’Connor, p. and post, J., to Part II-A. vens, as joined J., opinion Stevens, filed an opinions. concurring filed J., p. post, J., Ginsburg, filed p. 637. post, in part, dissenting part and concurring JJ., post, Breyer, joined, and which Souter dissenting opinion, 654. p. post, Breyer, J., dissenting opinion, filed 645. p. Burling With for S. the cause James petitioner. argued Grant. briefs was Eric on him Island, Whitekouse, Rhode of Sheldon General Attorney brief on the With him for cause respondents. argued A. Brian Rubin, General, Attorney Michael Assistant were J. Lazarus. and Richard Goldman the United for cause L. Stewart argued Malcolm him curiae urging With amicus affirmance. as States Waxman, Assistant General former Solicitor were brief Kneed- Deputy General Solicitor Attorney Schiffer, General Smith* R. Lazarus, Justin B. ler, William and American filed for were reversal urging curiae *Briefs of amici Sarles, W. Jeffrey Timothy Bishop, S. al. by et Federation Bureau Farm Cali- Rademacher, J. Kupa; John Johnson, and John J. N. Steffen Mark Phillips, G. Carter by Association Owners Property fornia Coastal Property Barrad; for Defenders Haddad, Valerio and Catherine E. H. William by Marzulla; for Justice Institute for the G. by Nancie Rights for the Bullock, Epstein; A. Bolick, Richard Mellar, G. and Scott Clint Shawn and R. Popeo J. Daniel by al. Foundation et Legal Washington E. Michael by al. III et Gunnarson; Williams for W. Frederick and Malamut. State filed for the were affirmance urging amici curiae Briefs of California, Richard General of Attorney Lockyer, al. Bill et California Se- General, Rodriquez, J. Matthew Frank, Attorney Chief Assistant M. Barbieri, Attorney Deputy General, Joseph Attorney Assistant nior Colum- District Corporation R. Counsel General, Rigsby, Robert as respective jurisdictions for their General bia, Attorneys Colorado, Richard Alaska, Ken Salazar Botelho Bruce M. follows: *5 Kennedy opinion delivered the of the Court.
Justice Anthony Petitioner Palazzolo owns a parcel waterfront of land in the town of Westerly, Rhode Island. Almost all of designated is as coastal wetlands under Rhode Island law. petitioner’s After development proposals were rejected by respondent Rhode Island Coastal Resources Management (Council), Council he sued in state court, as- serting the application Council’s of its regulations wetlands took the property compensation without in violation of the Takings Clause of the Fifth binding Amendment, upon the State through the Due Process Clause of the Fourteenth Amendment. Petitioner sought review in this Court, contending Supreme Court of Rhode Island erred in re- jecting his takings granted claim. We certiorari. 531 U. S.
I The town of Westerly is on an edge of the Rhode Island coastline. The town’s western border is the Pawcatuck River, which at point boundary between Rhode Blumenthal of Connecticut, Thurbert E. Baker of Georgia, Earl I. Anzai Hawaii, Andrew Ketterer of Maine, Thomas F. Reilly of Massachusetts, Mike McGrath of Montana, Frankie Sue Del Papa Nevada, T. Phillip McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Eliot Spitzer York, New D. Betty Montgomery Ohio, W.A. Drew Edmond- son of Oklahoma, Mark W. Barnett of South Dakota, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, and Christine O. Gre- goire of Washington; for the County of Santa Barbara by Stephen Shane Stark and Alan L. Seltzer; for the American Planning Association et al. by Timothy J. Dowling and James E. Ryan; for the Board of County Com- missioners of the County La Plata, Colorado, by Michael A. Goldman P. Jeffery Robbins; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; for the National Wildlife Federation et al. Vicki L. Been and Glenn P. Sugameli; for Save the Bay-People for Narragansett Bay by Deming E. Sherman and Kendra Beaver; and for W. Daniel Bromley et al. by John D. Echeverría. Briefs of amici curiae were filed for the National Associаtion of Home Builders Senior; Christopher G. and for Dr. John M. Teal et al. by Patrick A. Parenteau and Tim Eichenberg. *6 612 from land purchased on Situated and Connecticut.
Island incorporated was town Tribe, Indian the Narragansett his- colorful, early though had precarious, and in contested and Massachusetts Connecticut Both tory. Island’s Rhode validity indeed boundaries —and —of in- Connecticut to proximity and charter; Westerly’s royal squabbles. jurisdictional these during encroachments vited 60-83 Westerly Saved The Town Best, M. State — See A Bicentennial Island: Rhode McLoughlin, also W. (1943); see Rhode of the borders (1978). When 39-57 History the town’s 1728, compact settled were Colony Island historical some and with orderly, more was development Point, peninsula Hill instance, Watch For distinction. impor- strategic of town, was of the tip at southwestern See of 1812. the War War and Revolutionary in the tance its Witnesses supra, Westerly and Denison, 190; F. Best, 118-119 newa sig- had location coastal Westerly’s later times
In destina- seaside and vacation a popular It became nificance: account: this happy gave historians town’s One tion. manufacture the rapid War growth “After the Civil on class a spending created had trade and expansion attractions had superior bent, Westerly and pleasure bathing beaches, quieter ocean offer, bathing surf later sail and annual fishing, fresh water ponds, salt white of clean beaches broad The boat races. motor no odorous are there sea; toward the dip gently sand smoke, and belches no railroad tide, lowat marshes only coast, Newport on the is unrivalled climate ocean wave In the phenomenal'heat excepted. New to southern New England northern resorts climbed thermometer as the sweltered Jersey 80. a comfortable Hill Watch enjoyed while 104 degrees, runs temperature north Providence When Best, 77.” remains spot this favored the mercury supra, at 192.
rH tD CO Westеrly today has year-round 20,000 about residents, and thousands of summer visitors come to enjoy its beaches and coastal advantages.
One of the popular more attractions is Misquamicut State lengthy Beach, a expanse of facing coastline Block Island beyond Sound and to the Atlantic Ocean. primary point of access to the beach is Atlantic Avenue, a well-traveled 3-mile stretch of running road along the coastline within the *7 town’s limits. At its western end, Atlantic Avenue is some- thing of a strip, commercial with restaurants, hotels, arcades, and typical other seashore pattern businesses. The of de- velopment becomes more residential as the road winds east- ward onto a narrow spine of land bordered to by the south the beach and the ocean, and to the north Winnapaug Pond, an intertidal inlet often used residents boating, fishing, and shellfishing.
In petitioner, 1959 lifelong Westerly resident, decided to in invest three undeveloped, adjoining parcels along this eastern stretch of Atlantic Avenue. To the prop- north, the erty faces, and upon, borders Winnapaug Pond; the south the property faces Atlantic Avenue and the beachfront abutting homes it on the other side, beyond and that the dunes and the beach. To purchase and hold property, petitioner and associates formed (SGI). Shore Gardens, Inc. purchased After SGI the property petitioner bought out his associates and became the sole shareholder. In the first dec- ade of SGI’s ownership of the property corporation sub- plat mitted a to the town subdividing the property into 80 lots; and it engaged in various transactions that left it 74 together lots, which encompassed about During acres. period same SGI also made initial attempts to develop property and submitted applications intermittent to agencies state to fill portions substantial parcel. of the Most of the was then, as it is now, salt subject marsh to tidal flooding. ground The wet and permeable soil would require considerable fill—as much as six feet some built. be could significant structures SGPs
places—before Division Island the Rhode to proposal, submitted dredge (DHR), Winna- sought Rivers Harbors was application property. The fill the entire paug Pond second, similar A information. of essential for lack denied application, submit- year A third later. proposal followed pro- pending, application was the second in 1966 while ted private aas filling land for use posed more limited applications were referred These latter two beach club. which Resources, Department of Natural Island the Rhode ap- agency withdrew later assent. initial indicated impacts. environmental citing adverse proval, however, ruling. not contest did SGI develop were made attempts to further
No be- intervening however, events, Two for over a decade. 1971, presented. First, important the issues come creating Council, an legislation Island enacted Rhode duty protecting the State’s agency charged with the § seq. et Laws, ch. I. Pub. properties. 1971 R. coastal designated salt by the Council Regulations promulgated *8 protected “coastal on as like those marshes SGPs Management Island Resources Coastal wetlands,” Rhode (as (CRMP) 28,1983) (lodged §210.3 amended, Program June Court), development lim- the of this which Clerk with corporate 1978, great Second, SGPs ited to a extent. corporate pay income failure to was revoked for charter passed, operation of state taxes; and title to the corporation’s sole petitioner shareholder. law, to as efforts renewed the petitioner, owner, now the In Council, application resem- property. develop the An permission requested to construct bling submission, Winnapaug and along Pond shore a bulkhead wooden rejected the The Council area. to fill the marshland entire proj- a inadequate for noting “vague it and application, was agency also App. 16. The of this size nature.” ect im- significant proposed will have activities that “the found pacts upon the waters and wetlands of Winnapaug Pond,” and concluded that proposed “the alteration ... will conflict with the Coastal Management Resources Plan presently in effect.” Id., at 17. Petitioner appeal did not agency’s determination. Petitioner went back to the drawing board, this hir- time
ing counsel and preparing specific a more pro- limited posal for use of the property. application, The new submit- ted to the Council in 1985,echoed the request to build private beach club. The details do not inspire tend to idyllic reader with an image, coastal proposal for the was to fill 11 acres of the property gravel with to accommodate “50 cars with boat a dumpster, port-a-johns, picnic trailers^ ta- bles, pits barbecue of concrete, and other trash receptacles.” Id., at 25. application no fared better with the pre- Council than
vious ones. Under agency’s regulations, a landowner wishing to fill salt marsh on Winnapaug “spe- Pond needed exception” cial § the Council. CRMP 180. In a short opinion the Council said the beach proposal club conflicted regulatory special standard for a exception. See App. 27. special To exception secure proposed activity must serve “a compelling public purpose provides which ben- efits the public as a whole opposed as to individual or private § 130A(l). interests.” CRMP petitioner This time appealed the decision to the Rhode Island courts, challenging the Council’s contrary conclusion as to principles of state ad- ministrative law. The Council’s decision was affirmed. See App. 31-42.
Petitioner filed an inverse condemnation action Rhode Superior Island Court, asserting that the State’s wetlands regulations, applied as the Council his parcel, *9 to had taken property compensation without in violation of the Fifth and Fourteenth Amendments. id., See at 45. The suit al- leged the Council’s deprived action him “economically, of beneficial use” of property, his ibid., resulting in a total tak- South Carolina compensation Lucas v. requiring under
ing (1992). damages sought He Council, 505 U. S. Coastal apprais- from an figure $3,150,000, a derived in the amount subdivi- a residential value of 74-lot as to the er’s estimate After defenses. with host The countered sion. State against Superior ruled justice Court of the trial, a bench App. to theories. accepting petitioner, of the State’s some B-13. B-l to Pet. Cert. for 2d 707 746A. Supreme affirmed. Court
The Rhode Island (2000). Supreme Court Superior Court, State Like petitioner’s rejecting multiple grounds suit. recited ripe, takings claim was petitioner’s first, that held, court right chal- petitioner no had second, that id., 712-715; at legal he predating 1978, succeeded lenge regulations when third, 716; SGI, id., ownership of the economically beneficial deprivation of all claim of that the had by undisputed that he evidence was contradicted use upland parcel remaining development on an value $200,000 holding petitioner property, id., In at 715. addition of the of all takings on the denial claim based not assert could under he could recover use, the court concluded economic Transp. New v. general Penn Central Co. test of the more City, too, date claim, this U. On York 438 S. 104 parcel acquisition determinative, and was found investment- had “no reasonable court held he could have regulation” expеctations this that were backed affected see also predated ownership, 2d, 717; A. his it because supra, at 124. Central, Penn Supreme Island as disagree of Rhode Court
We court hold, we conclusions; and,, two of to the first these deprived all is not to conclude that the owner was correct upland value because the use of his economic consider- portions for further We remand is substantial. principles in Penn set forth of the claim under ation Central.
617 II The TakingsClause of the Fifth applicable Amendment, the States through the Fourteenth Chicago, Amendment, B. Q.& R. Co. Chicago, v. 166 U. S. prohibits 226 (1897), government taking from private property public use just without compensation. The clearest sort of taking oc government curs when the upon encroaches or occupies pri vate land for its own proposed use. Our cases establish that even “permanent minimal physical occupation of prop real erty” requires compensation under the Clause. Loretto v. Teleprompter Manhattan Corp., CATV 458 U. S. 419, 427 In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1982). (1922), the Court recognized that there will be instances government when actions do not upon encroach occupy or yet still affect and limit its use to such an ex tent taking that a occurs. In Justice Holmes’ if well-known, less than self-defining, formulation, “while property may be regulated to a certain extent, if a regulation goes too far it will recognized be aas taking.” Id., at 415. Since Mahon, we given have some, but specific, not too
guidance to courts confronted deciding with par whether government ticular goes action too far and regula effects a tory taking. First, we have observed, qualifi certain cations, see infra, at 629-630, regulation that a which “denies all economically beneficial or productive use of land” will require compensation under the Takings Clause. Lucas, S., U. see id., 505 also at 1035 (Kennedy, 1015; J., concurring); Agins City v. Tiburon, U. S. regulation Where a places limitations on land fall short of eliminating all economically beneficial use, a tak ing may nonetheless have occurred, depending on a complex of factors including regulation’s economic effect on the landowner, the extent to which regulation interferes with reasonable expectations, investment-backed and the character of government action. Penn Central, supra, at 124. inquiries These are informed purpose government prevent the is to Clause,
Takings which which, public burdens people bear “forcing alone to some public as by the be borne justice, should all fairness *11 40, 49 States, U. S. Armstrong 364 v. United whole.” At principles. compensation under these Petitioner seeks considera- two threshold the however, we face outset, the ripeness, claim: bar the to the state court tions invoked regulation. postdates the acquisition which and A Planning v. Regional Comm’n County In Williamson (1985), the City, 172 473 S.U. Bank Johnson Hamilton takings claim must a requirement that explained the Court challenging takings claim a held that ripe. The Court be “the ripe unless is not regulations application of land-use the regula- implementing the charged entity government application regarding the decision a final has reached tions A Id., at 186. property at issue.” regulations the the to agency the informs responsible state final decision regulation de- has a whether determination constitutional economically use” beneficial prived of “all a landowner reason- supra, 1015,or defeated property, Lucas, see expectations landowner able investment-backed supra, Central, Penn taking occurred, see has a extent , in definitive be cannot resolved These at 124. matters develop- permitted extent of knows “the until a court terms MacDonald, & question. Sommer on the land ment” (1986). Drawing County, 351 S. Yolo U. v. Frates held Supreme Court principles, Island the Rhode on these necessary steps ripen petitioner not taken had takings his claim. ripeness under resolving issue, question central decisions, is County whether other relevant and
Williamson Council deter- a final decision from petitioner obtained noted, we have As permitted use the land. for mining the point, granted at one been early applications to fill had SGI’s though that assent was later revoked. Petitioner then sub- proposals: mitted two proposal the 1988 to fill par- the entire cel, proposal to fill 11 of the property’s 18 wet- land acres for construction of the beach club. The court reasoned that, notwithstanding the Council’s denials of the applications, doubt remained toas development extent of the Council would petitioner’s allow on parcel. We cannot agree.
The court holding based its part upon petitioner’s failure explore “any other use the property that would involve filling substantially less wetlands.” 746 A. 2d, at It 714. upon relied this Court’s observations that the final decision requirement is not satisfied when developer submits, authority land-use grandiose denies, development proposal, leaving open the possibility that lesser uses of the property *12 might permitted. be See supra, MacDonald, at 353, n. 9. suggestion The is that while the rejected Council petitioner’s effort to fill all of the wetlands, and rejected then pro- his posal to fill 11 of the wetland perhaps acres, application an (for instance) to fill 5 acres would have approved. been Thus, goes, the reasoning we cannot know for sure the extent permitted development on petitioner’s wetlands.
This is by belied unequivocal nature of the wetland regulations issue and application Council’s of the regulаtions to subject property. Winnapaug Pond is classified under the CRMP as a Type 2 body of water. See § CRMP 200.2. A landowner, as a general prohibited rule, is filling building or residential structures on wetlands adjacent Type to 2 waters, id., see p. 1, Table 22, §210.3(C)(4), may but seek special a exception from Council engage to prohibited a § use, id., see 130. The permitted is Council allow exception, only however, where a “compelling public purpose” is Id., served. 130A(2). § proposal to fill the entire was not accepted regulations under Council qualify did not special exception. The Council pro- determined the use 620 club) (the sat- did beach application
posed the second is no There standard. purpose” public “compelling isfy the application accepted the have would the Council indication sur- occupied smaller a club proposed beach petitioner’s had activ- proposed contrary, ruled it theTo face area. id., cf. App. 27; purpose.” public “compelling anot ity was “activity” proposed an (1983 fill to wetlands application 17at CEMP). conflicting “responds requirement County’s final decision
Williamson possessed characteristically discretion high degree of to the general softening the strictures boards land-use Regional Tahoe v. Suitum they administer.” regulations land aWhile Agency, U. S. Planning to exer authority opportunity an give a land-use owner must agency lacks that the clear it becomes discretion, once its cise permissible or the development, any permit the discretion degree of reasonable known are uses case ripened. The likely to have takings is claim certainty, a principal place respondents upon which quite those unlike challenged land-use an owner arose when reliance, which leaving doubt project, a substantial authority’s denial application for anor submission modest a more whether supra, at 342 MacDonald, accepted. See be would variance subdivision); (denial Williamson residential of 159-home (476-unit subdivision); Agins City v. cf. supra, at 182 County, (case (1980) ripe no because Tiburon, 447 U. S. *13 submitted). develop was plan to that a land- important principle for the stand cases These authority taking a land-use before a may establish owner procedures, to using own reasonable its opportunity, has the challenged regulation. a of explain reach decide law or on a takings based ripeness a claim rules our Under burdening prop- far in go too alleged to regulation which is having rea- followed upon first erty landowner’s depends agencies regulatory steps necessary allow sonable and development considering full discretion their exercise plans for the property, including the opportunity grant any variances or waivers by allowed law. As general rule, until ordinary these processes have been followedthe extent of the restriction on is not known and regulatory taking yet has not been established. See Suitum, supra, at 736, and n. 10 (noting difficulty of demonstrating that “mere enactment” regulations restricting land use effects a tak- ing). Government authorities, of may course, not burden property by imposition repetitive or unfair proce- land-use dures in order to avoid a final decision. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 698 respect
With to the petitioner’s wetlands on property, the Council’s plain decisions make that the agency interpreted its regulations to petitioner bar from engaging any filling or development activity on the wetlands, a fact reinforced the Attorney General’s forthright responses to our question- ing during oral argument in this case. See Tr. of Arg. Oral 31. The rulings of the Council interpreting the regula- tions at issue, and the argumеnts, briefs, and candid state- ments counsel for both sides, leave no point: doubt this On the wetlands there can be no any fill for ordinary land use. There can be no fill for its own sake; no fill for beach club, either rustic upscale; or no fill for a subdivision; no fill any likely or foreseeable use. And with no fill there can be no structures and no development on the wetlands. Fur- ther permit applications were not necessary to establish point. this
As noted above, however, not all petitioner’s parcel con- protected stitutes wetlands. The trial accepted court un- contested testimony upland an site located at the east- ern end of would have an estimated value $200,000if developed. App. to Pet. for Cert. B-5. While approval Council required to develop upland property which lies within 200 protected feet waters, see CRMP § 100.1(A),the strict “compelling public purpose” test does not govern proposed land uses on property in this classifica- *14 622 testified § officials § Council 1A, 120. 110,Table id.,
tion, see petitioner allowed they have would moreover, that trial, at for App. to Pet. parcel. upland the on residence build to petitioner’s found Supreme Court The State B-5. Cert. sought he “has that reason unripe further for the claim would property that the . . use any . for permission the portion of upland only of the development . . involve . 714. 2d, at A. parcel.” 746 to sub- failure petitioner’s significance of assessing the
In to important it is upland develop area the applications to mit requirement final decision purpose the that the in mind bear obligations on imposes jurisprudence ripeness Our serves. whether determine “[a] cannot court because landowners regula- far how knows it ‘too far’ unless regulation goes Ripeness doc- S., at 348. MacDonald, All U. goes.” tion for applications submit require a landowner does not trine develop- explore required to is Petitioner own sake. their is un- only if there parcel upland his opportunities on ment permitted use. certainty the land’s toas It uplands in doubt. value asserts The State Is- Rhode opinion of the in the comment part on a relies possible build be that “it would Supreme Court land upland portion of on the single-family home one least qualification argues that It 2d, at 714. parcel.” A. beyond the development additional that “at indicates least” interject attempt am- possible. dwelling single was uplands, comes however, or use biguity the value as to this litigation before day purposes late in the too petition for certiorari in It stated Court. was worth an estimated had petitioner’s uplands only figure was 21. The for Cert. $200,000. Pet. See brief in the State’s cited fact also was as but uncontested circum- In this 19. Opposition 4, Brief opposition. See value by saying ripeness be contested cannot stance S., Lucas, U. parcels is unknown. See of the nonwetland n. 9. *15 The State’s prior willingness to accept the $200,000figure, furthermore, is well only founded. The upland reference to property in the trial opinion court’s is single to a parcel worth an estimated $200,000. See App. to Pet. for Cert. B-5. There was, it must be acknowledged, testimony at trial suggesting the existence of an upland additional parcel elsewhere on the property. See (tes- Tr. 190-191, 199-120 timony of Dr. Fugate, Grover Council Director); Executive see also id., at 610 (testimony Clarke). of Steven The testi- mony indicated, however, that potential, upland second parcel was on an “island” which required construction of a road across wetlands, id., at 610, 623-624 (testimony of Mr. Clarke) and, as discussed above, — filling of wetlands for such purpose a would justify not special exception under Council regulations. supra, See at 619-621; see also Brief (“Residential Respondents for construction is not the basis of such ‘special exception’”). Perhaps for this reason, the State did not maintain in the trial court that uplands additional could have been developed. To the con- trary, post-trial its memorandum only identified the sin- gle parcel petitioner that concedes retains a development value of $200,000. See State’s Post-Trial Memorandum in No. 88-0297 (Super. I.), Ct. pp. R. 25, 81. The trial court accepted the figure. So there genuine is no ambiguity in the record as to the permitted extent of development petition- on er’s property, either on the wetlands or uplands. Nonetheless, there is suggestion some that permit- the use ted uplands on the is not known, because the State accepted the $200,000value for the upland parcel on premise that only a Lucas claim was raised in the pleadings in the state trial court. See Brief Respondents 29-30. Since a. Penn argument Central pressed was not at trial, it argued, the State had no reason to assert vigor that more than a single-family might residence placed be uplands. We disagree; the State was aware of the applicability of Penn Central. The issue whether the Council’s decisions discussed was Central taking Penn under to a amounted Supreme B-7, State for Cert. App. to Pet. court, trial sub- post-trial own State’s 717, 2d, A.
Court, Memorandum Supplemental Post-Trial see State’s missions, indicating as read be opinions cannot state-court 7-10. presented properly was claim Central Penn litigation. of this outset concluding Wil- In remains. ripeness issue final A satis- was requirement County’s decision final liamson *16 petition- emphasis on placed Supreme Court the fied, State [the] develop permission “appl[y] for failure er’s dam- for the basis the that was seventy-four-lot subdivision” 2d,A. suit. condemnation inverse in his ages sought thought fact why this it explain not did The court 714. ruling. the defend amici respondents and significant, but proposal a is to consider they assert, practice, Council’s precon- regulatory other all applicant satisfied has only if the The subdi- application. in the envisioned use for the ditions takings petitioner’s for the basis proposal that was vision the Council proceeded before they not have could add, claim, the town zoning approval from minimum, without, at Department Island permit Rhode from Westerly and a allowing the installation Management of Environmental Peti- property. systems on sewage disposal individual strategy of ball hide the employing accused tioner Council, uses modest for moré submitting applications pur- predicated on takings action later only to assert Brief project. larger a much inability to build ported 9. Curiae Amici al. as Federation et Wildlife National to the is relevant concern how this to see is difficult It by the Coun- informed was Petitioner here. issue inquiry at necessity wetlands; it follows not fill could cil that he dwell- single-family build and then fill he could proposal would of this submission ings upon Petitioner’s it. development permitted the extent clarified have required inquiry is the which regulations, wetlands under ripeness our decisions. The State’s may concern be that landowners could demand damages for a taking based project that could not have been constructed under other, zoning valid quite restrictions apart from regula- being tion challenged. This, of course, ais valid concern in inverse condemnation alleging cases injury wrongful refusal to permit development. The instant case does not require pass us to upon the authority of a State to insist in such cases that landowners follow normal planning proce- dures or to enact rules to control damages awards based on hypothetical uses that should have been reviewed in the nor- mal course, and we do not intend to cast upon doubt such rules here. The allegation mere of entitlement to the value of an intensive use will not avail the landowner if project would not have been allowed under other existing, legitimate land-use limitations. When a taking has occurred, under ac- cepted principles condemnation the owner’s damages will be based upon the property’s fair market g., value, see, e. Olson v. United States, 292 U. S. (1934); 246,255 4 J. Sackman, Nich- ols on (rev. § Eminent Domain 2000) 12.01 3d inquiry ed. —an which will in part, turn, on restrictions on imposed by use *17 legitimate zoning or other regulatory limitations, see id., § 12C.03[1]. The state court, however, did rely not upon ripe- state-law ness or principles exhaustion holding petitioner’s that tak-
ings claim was barred virtue of his failure to apply for a 74-lot subdivision; it relied on Williamson County. As we explained, have County Williamson and our ripeness other decisions do impose not obligations further petitioner, on for the limitations the regulations wetland imposed were clear from the Council’sdenial of applications, his and there is no any indication that involving use any substantial structures or improvements would have been allowed. Where the state agency charged with enforcing a challenged land-use regulation entertains an application from an owner and its denial of application the makes clear the extent of develop-
626 reviewing agency nor the neither and permitted,
ment state- reasonable with noncompliance cited has court state Casey, v. Felder see processes, pre-permit or exhaustion law do rules ripeness (1988),federal 150-151 131, U. S. 487 applications futile and further of submission the require agencies. other
B to declining ad- for basis asserted the second to turnWe merits; the When on takings claim petitioner’s dress disputed regulations, wetlands its promulgated Council corporation by the but by petitioner owned was parcel trаns- was title When shareholder. sole was he which of regula- wetlands law, the by operation petitioner to ferred postregulation held court The state in force. were tions deprivation the claim fatal was of title acquisition Central Penn and 716, 2d,A. 746 use, all economic holding couched was first While 717. 2d,A. claim, 746 law, see state principles background in terms petition- terms the second 1015,and S., at U. Lucas, 505 Penn see expectations, investment-backed reasonable er’s amount together holdings two at S.,U. Central, title qr a successive purchaser A rule: sweeping, single, ato earlier- of an have deemed notice petitioner like holder it effects claiming is barred restriction enacted taking. postenactment argument underlying the theory Takings under regulation challenge cannot purchasers cre- rights are Property lines: these run seems to Clause Legal Washington Phillips v. g., e. See, State. ated Foundation, argument (1998). So, the 156, S. U. de- shape can State legislation by prospective goes, ex- *18 investment-backed rights reasonable fine injury any claim cannot owners subsequent pectations, title took or they purchased all, After value. lost limitation. notice of
The
may
State
not put
potent
so
a Hobbesian stick into
the Lockean bundle. The right
to improve property, of
course,
subject
is
to the reasonable exercise of state author-
ity, including the enforcement of valid zoning and land-use
restrictions. See Pennsylvania Coal Co.,
Nor justification does of notice take into account the effect on owners at the time of enactment, who are preju- as diced well. Should an owner attempt to challenge a new
regulation, but not process survive the ripening his or her (which, claim as this case demonstrates, will often take years), under the proposed rule right compensation may not be asserted an heir or successor, may and so be asserted at all. The State’s rule would work a critical alteration to the nature of property, as newly regulated landowner stripped of the ability to transfer the interest which was possessed prior to regulation. The State may this means secure a windfall for itself. See Webb’sFabulous Pharmacies, Inc. v. Beckwith, 449 U. S.
628 transform dixit, may not by ipse State, (“[A] (1980) 155, 164 compensa without property into public
private 1315, L. J. Yale 102 Land, Ellickson, Property tion”); cf. a defin is in land interest transfer to (1993) (right 1368-1369 estate). The proposed fee simple the of characteristic ing owner The young effect. furthermore, capricious is, rule re the with owner, the owner older the with contrasted to need the with owner the with contrasted hold to sources is Clause The Takings positions. different would be sell, notice with that purchasers rule A blanket not so quixotic. too is ripe becomes a claim when right no compensation have to compensate duty the with accord to instrument an blunt taken. is what of power the State’s of invocation condemnation, by Direct cases considerations different domain, presents eminent aIn regulation. burdensome on a based a taking alleging has physically a State or when action, condemnation direct extent and fact the suit, filing without the property invaded ais instance, general it an In such known. are the taking of to award goes any domain of law eminent the rule to right taking, time owner See subsequent purchaser. ato not is passed compensation 2 (1939); Sack- States, 308 U. S. United v. Danforth settled (“It is well § Domain, 5.01[5][d][i] Eminent man, domain eminent by of property a taking is there that when owner law, it is in compliance to compensation”). is entitled who the taking time at the a land-use regulation, application challenge A have requirements ripeness until mature not contrast, does this discussed; until have we under satisfied, principles been a regulatory alleging claim condemnation an inverse point un- be illogical, would It maintained. be cannot taking of the post- because claim takings bar fair, regulatory necessary the steps where ownership transfer enactment have or could taken, were claim ripe to make owner. taken, previous been There controlling precedent for our conclusion. Nollan v. Coastal Comm’n, 488 (1987), U. S. California pre- question sented whether it was consistent with the Tak- ings Clause for a state regulatory agency require ocean- *20 front provide landowners to lateral beach public access to the as the condition for а development permit. The principal dissenting opinion observed it was a policy of the California Coastal require Commission to the condition, and that the purchased Nollans, who their home policy after the went into effect, were “on notice that new developments ap- would be proved only provisions if were made for lateral beach ac- cess.” Id., (Brennan, at 860 J., dissenting). A majority of rejected the Court proposition. long “So as the Com- mission could not deprived have prior owners easement without compensating them,” the Court reasoned, prior “the owners must be understood to have transferred their full property rights in conveying the lot.” Id., at 834, n. 2. argued
It is that holding Nolían’s by was limited the later decision in Lucas v. South Carolina Coastal Council, 505 S.U. In Lucas the Court observed a land- ability owner’s to recover for government a deprivation of all economically beneficial use of property is not absolute but instead is by confined limitations on the use of land which “inhere in the title itself.” Id., at 1029. This is so, the Court reasoned, because the landowner is constrained those “restrictions that background principles of the State’s law of property already nuisance place upon land owner- ship.” Ibid. It is asserted here that Lucas stands for proposition any regulation, new once enacted, becomes a background principle of property law which cannot be chal- lenged by acquire those who title after the enactment. We have no occasion to precise consider the circumstances when legislative can enactment be deemed background principle of state law or whether those circumstances are present here. It say suffices to regulation that a that other- is compensation absent be unconstitutional would
wise law State’s рrinciple background into transformed stand- relative This title. passage of virtue by mere con- description of our incompatible be would ard common, those terms explained Lucas, which cept derived limitations permissible understandings of shared regu- A at 1029-1030. id., tradition, see legal a State’s principle background abe cannot rule common-law or lation determination others. for but owners some use economic all limit can general law existing, an whether na- as factors, such objective turn must (“The Total at 1030 id., See proscribed. use the land ture . . ordinarily . entail today will require inquiry we taking’ public harm degree of things, the among other analysis of, posed property, private adjacent resources, or lands *21 activities”). become not does A law proposed claimant’s the by enactment owners subsequent principle background which, Nollan, holding in our overrule not did Lucas itself. Clause Takings essential on is based noted, we have as principles. not find will court state the next, discuss we For reasons connec- remand matters explore these necessary to it deprived; it use was economic all claim with the tion under claim petitioner’s of merits however, the address, must fact by mere the not barred is claim That Penn Central. the of state- date effective acquired the after was that title imposed restriction.
Ill title of transfer date the ripe, as and the case As us the before have takings we claim, petitioner’s bar does not Supreme Island by Rhode upon the ground relied alternative It takings claims. the merits upon ruling the Court deprived was use economically beneficial all held im- be can still uplands portion because decision. court’s agree point, we this proved. On trial state contention accepts Council’s Petitioner finding court’s parcel that his $200,000 retains develop- ment value undеr the State’s regulations. wetlands He as- serts, nonetheless, that he has suffered a taking total contends the Council cannot sidestep holding in Lucas “by simple expedient of leaving a landowner a few crumbs of value.” Brief for Petitioner 37.
Assuming taking is otherwise may established, a. State duty compensate evade the premise on the that the landowner is left with a token interest. This is not the situ- ation of the landowner in this case, regulation however. A permitting a landowner build a substantial residence on parcel an 18-acre does not leave the “economically supra, idle.” Lucas, at 1019.
In his brief petitioner submitted to us attempts to revive part this his claim reframing argues, it. He for the upland time, first parcel that the is distinct from the wet portions, lands so permitted he should be dep to assert a rivation limited to the latter. This contention us to asks examine persisting question difficult, of what is the proper denominator in the takings fraction. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of Compensation “Just Law,” 80 Harv. L. Rev. 1165, 1192 Some of our cases indicate that the extent deprivation effected a regulatory action is measured against parcel value of the as a g., whole, Keystone see, e. Bituminous Coal Assn. v. DeBenedictis, 480 U. S. (1987);but we have at expressed times discomfort with the *22 logic of this rule, see supra, Lucas, at 1016-1017, n. 7, a senti ment echoed some g., commentators, Epstein, see, e. Tak ings: Descent and Resurrection, 1987 S. Ct. Rev. 1, 16-17 (1987);Fee, Unearthing the Denominator in Regulatory Tak ings Claims, 61 U. Chi. L. Rev. Whatever the merits of these criticisms, explore we will not point the here. press Petitioner did not argument the in the state courts, and the presented issue was not petition in the for certiorari. The ease comes to premise us on the petitioner’s that entire
parcel takings claim, and, so the basis his serves as for deprivation argument fails. framed, the total
[*] [*] [*] Supreme discussed, For the reasons we have State unripe finding petitioner’s in claims Court erred were ruling acquisition of effective date of title after the takings regulations court did barred the claims. The depriva- finding petitioner not err in failed to establish undisputed parcel it is that the value, tion of all economic significant residence. retains worth for construction analysis exam- The claims under the Penn Central were not purpose ined, and for this the case should be remanded. Supreme judgment Island Court is af- the Rhode part part, firmed in the case is remanded and reversed opinion. proceedings for further not inconsistent with this It is so ordered. O’Connor, Justice concurring. join opinion understanding my
I but with Court opinion of how the issues discussed Part II-B of the must be considered on remand. opinion
Part II-B the Court’s addresses the circum- present takings stance, in this where a case, claimant has acquired regulated title to the after enactment regulation holds, at issue. As the Court the Rhode Supreme effectively Island adopting Court erred in sweeping preacquisition rule that the enactment of the use ipso any takings restriction defeats claim based on that facto Accordingly, petition- use restriction. holds that Court Transp. City, er’s claim under Penn Central New Co.v. York (1978), “is U. S. 104 not barred title mere fact that state-imposed was after the acquired effective date Ante, restriction.” at 630. question temporal
The more difficult what role the rela- tionship regulatory acquisition between enactment and title *23 plays in proper Penn analysis. Central Today’s holding does mean that the timing regulation’s of the enactment acquisition relative of title is immaterial to the Penn analysis. Central just Indeed, it would be as much error to expunge this consideration from takings inquiry as it would be to it significance. accord exclusive polestar Our principles instead remains the set forth in Penn Central itself and other govern our cases that partial regulatory takings. Under these cases, interference with investment- expectations backed is one of a number factors that a court must examine. regulatory regime place Further, the time the acquires claimant helps at issue shape the expectations. reasonableness of those
The Fifth Amendment forbids
taking
private prop
erty
public
just
use
compensation.
without
We have rec
ognized
guarantee
that this constitutional
“‘designed
bar
forcing
Government
people
some
pub
to bear
alone
lic
which,
burdens
justice,
in all fairness and
should be borne
”
public
aas whole.’ Penn
supra,
Central,
at 123-124
(quoting Armstrong
49 (1960)).
v.
States,
United
We have “identified several particular factors that have significance” “essentially in these inquiries.” hoc, ad factual Central, Penn 438 S.,U. “[t]he 124. Two such factors are impact regulation economic par- claimant and, ticularly, the extent to regulation which the has interfered *24 An- expectations.” Ibid. investment-backed
with distinct governmental Ibid. action.” of the other is “the character produced, purposes well as the effects served, as takings analysis. Id., at regulation particular inform the (“[A] may property constitute on real 127 use restriction reasonably necessary effectuation of ‘taking’ to the if not perhaps [citations if public purpose, omitted], or substantial unduly upon of the impact the owner’s use harsh it has an 519, 523 Escondido, 503 S. property”); also Yee U. see v. (1992) entai[l] “necessarily com- takings (Regulatory cases purposes ef- and economic plex of the factual assessments actions”). sup- does government Penn Central fects of provides precise instead ply mathematically variables, but important guideposts to the ultimate determination that lead just compensation required. whether Supreme that, because concluded The Rhode Island Court acquisition regulations predated petitioner’s the wetlands petitioner property lacked reasonable issue, of the expectations lacked a viable investment-backed and hence (2000). takings The court erred 707, claim. 746 A. 2d 717 “[petitioner’s] elevating it to be lack in what believed expectations” “dispositive” reasonable investment-backed expectations, though im- Ibid. status. Investment-backed portant, Evaluation are talismanic under Penn Central. expec- degree interference investment-backed points toward the answer tations instead is one factor that question particular regu- application of a whether the Pennsylvania particular “goes far.” lation to too (1922). Mahon, 260 Coal Co.v. U. S. regulatory of ac- affairs at the time
Further, the state of only may quisition the extent is not the factor that determine example, expectations. the na- of investment-backed For regula- permitted development under ture and extent sought tory regime development by the claim- vis-a-vis the vesting may shape legitimate expectations ant without also any development right owner. We kind of also have never held that a clаim takings is defeated simply on account of the lack a of personal financial investment a postenactment acquirer such as property, a donee, heir, or devisee. Cf. Hodel v. Irving, U. S. 704, 714-718 Courts instead must attend to those circumstances which are probative of what fairness requires a given case.
If investment-backed expectations are given exclusive sig nificance in the Penn Central analysis and existing regula tions dictate the reasonableness of those expectations instance, every then the State wields far too much power redefine property rights upon passage of title. On the other *25 hand, if existing do regulations to inform the nothing analy sis, then some property owners may reap windfalls and an important indicium of fairness is lost.* As I understand it, our decision does today remove the regulatory backdrop against which an owner takes to title from the pur view of the Penn Central It inquiry. simply restores bal ance to that inquiry. Courts properly consider the effect of existing under regulations the rubric of investment-backed in expectations determining whether a compensable taking *Justice Scalia’s inapt “government-as-thief” simile is symptomatic the larger failing of his opinion, which is that he appears to conflate two questions. The first question is whether the enactment or application of a regulation constitutes a valid exercise of the police power. The second question is whether the State must compensate a property owner for a diminution in value effected the State’s exercise its police power. We have held that ‘public “[t]he requirement use’ [of the Takings Clause] is ... coterminous the scope aof sovereign’s police powers.” Hawaii Housing Authority v. Midkiff, U. 467 S. The relative timing of regulatory enactment and title acquisition, course, does affect the аnalysis whether a State has acted within the scope of these powers in the first place. That issue appears to be the one on which Justice focuses, Scalia but it is not the matter hand. The relevant question instead is the second question described above. It is in to this quiry that “investment-backed expectations” and the state of regulatory affairs upon acquisition of title are relevant under Penn Central. JUSTICE approach Scalia’s therefore would seem to require a Penn revision Central analysis that this Court has not undertaken. cannot facts of these salience before, the As
has occurred. Central, 438 U. S., Penn “set formula.” reduced any be omitted). The temptation (internal marks quotation per must se either direction rules amount what to adopt exami- careful requires Clause Takings be resisted. The circumstances the relevant of all nation and weighing consider must therefore The court below context. this Penn Central under factors of relevant remand array is due. any compensation whether before deciding Scalia, concurring. Justice understanding clear that my to make
I write separately II-B of Court’s in Part opinion discussed the issues how O’Connor’s. is not Justice on remand be considered must is concurrence her separate underlies The principle be “[un]- circumstances some (unspecified) it may to allow “windfalls,” fai[r],” produce unacceptable unconstitutional an partial nullify purchaser subsequent total unconstitutional not an inexplicably, taking (though, Ante, at 635. horri- polar the government. taking) by real estate in which a sharp the situation ble, presumably, on) the uncon- (or indeed, simply realizing gambling developer, *26 that a restriction of a excessiveness development stitutional valid, assumes to be purchases naive landowner restriction, then to the worth it would be subject what value) after (or its full it at value resells it to its full develops restriction invalidated. the unconstitutional getting is not it called can, though This I be suppose, windfall — every day that occur from the windfalls much different auctions, where or knowledge- stock antique exchanges venturesome) (or at the igno- expense able profit averse). said (or be the risk There something rant much) “fair- in for abstract pursuing view my (though returned to be or of that windfall ness” all by requiring part is the owner, to the naive who “rightful” original presumably said of it. But there is be nothing giving owner it instead to the government —which did only not lose it something owned, but is both the cause the miscarriage of “fairness” and the only one of the three parties involved in the miscarriage (government, naive original owner, and real sharp estate developer) which acted unlawfully —indeed unconstitutionally. Justice O’Connor would eliminate the windfall by giving malefactor the benefit of its male faction. It is rather like eliminating windfall that ac crued to a purchaser who bought property at a bargain rate from a thief clothed with the indicia of title, by making him turn over the “unjust” the thief.* profit my In view, the fact that a restriction existed at the time purchaser (other took title than a restriction forming part of the “background principles of the State’s law of prop- erty and nuisance,” Lucas v. South Carolina Coastal Coun- cil, 505 U. (1992)) S. 1003, 1029 should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking. The “investment-backed expecta- tions” that the law will take into account do not include the assumed validity of a restriction that in fact deprives prop- erty of so much of its value as to be unconstitutional. Which say is to Penn Central taking, see Penn Central Transp. Co. v. New York City, 438 U. (1978), S. 104 no less than a total taking, is not absolved the transfer of title. Justice Stevens, concurring part dissenting part. In an admirable effort to frame inquiriеs its broadly significant terms, the majority offers pages five of commen- tary on the issue of whether an owner of property can chal-
*Contrary to JUSTICE O’Connor’s assertion, ante, at 635, n., my conten- tion governmental wrongdoing does not assume that the government exceeded its police powers by ignoring “public use” requirement of the *27 Takings Clause, see Hawaii Housing Authority v. Midkiff, 467 U. S. 240 It is wrong for the government to take property, even for public use, without tendering just compensation. that of acquisition prior to her adopted regulations
lenge legal or facts particular discussing the ever without I While 626-630. ante, See case. in this at issue claims issue, say this has to the Court of some what agree with this of facts the context in the issue an examination com- oversimplified a has Court me case convinces There- questions. separate two conflated and plex calculus opinion, I dissent join Part II-A I fore, while II-B. from Part particular, in and, judgment HH power have broad governments local Though and States are powers usage, those land limiting regulations adopt to provisions by other ánd by Constitution constrained authori- restrictions, local adopting land-use In law. state constitutionally sufficient and legally valid follow ties must re- substantive to whatever adhere must and procedures supervening and imposed the Constitution are quirements or procedural its body to adhere fails regulating If a law. restrictions, developing land-use obligations substantive challenge may restrictions impacted adversely anyone application If action. injunctive validity an their a “di- her cause owner would a such restriction T. & Atchison, Chicago g., v. e. injury,” substantial rect she (1958), I have no doubt 77, Co., S. F. R. U. S. validity whether challenge restriction’s standing to has regula- after or property before to the acquired title she correctly observes, as the Court adopted. For, tion was challenge unrea- right generations “have even future Ante, of land.” value on the use limitations sonable at 627. as- Court that, as the however, follows, by means no
It compensation may obtain succeeding owner sumes, a A tak- interest. predecessor her property from taking of private acquisition of governmental event, ing is a discrete just com- provide required to State property for which a it occurs property, transfers pensation. Like other *28 particular time, that time the being moment when the rele- vant interest property is alienated from its owner.1
Precise specification of the moment a taking occurred and
of the nature of the property interest
taken is
necessary
order to determine an appropriately compensatory remedy.
For
the
example,
amount of the award is measured
the
value of the
at the
time of
not the
taking,
value at
some later date. Similarly, interest on the award runs from
that date. Most
for our
importantly
purposes
it is
today,
the
person who owned the
the time of the taking
is entitled to the
g.,
e.
See,
recovery.
v.
Danforth
United States,
1A regulation that goes so “far” that it violates the Takings Clause may give rise to an award of compensation or it may simply be invalidated as it would be if it violated any other (with constitutional principle consequence that the State must choose between adopting a new regula scheme tory that provides compensation or forgoing regulation). While some recеnt opinions Court have focused on the former remedy, Justice appears Holmes to have had regime focusing on the latter in mind in the opinion that began the modern preoccupation with “regulatory takings.” See Pennsylvania Coal Co. Mahon, v. 260 U. 393, (1922) (because S. the statute in question takes private property just without compensation “the act sustained”). cannot be 2The Court argues, ante, that a regulatory taking different from direct state appropriation of property and that the rules this Court has developed for identifying time of the latter do not apply former. This is something of an conclusion, odd in that the entire ration ale for allowing compensation for regulations in place first is the some what dubious proposition that some regulations go so “far” as to become equivalent functional aof direct taking. Ultimately, the Court’s regulations-are-different principle rests on the Confusion of two dates: the time an injury occurs and the time a claim for compensation for that injury becomes cognizable in judicial proceeding. That we require plaintiffs making claim that a regulation is the equivalent of a taking to go
hH con- stems genuine this case difficulty of Much oc- actually alleges Palazzolo the taking when as to fusion case, theory to Palazzolo’s According curred. *29 Island, possessed property Rhode Westerly, of his owners some at the of property the wetland portion fill to the right of State 1971, the In past.3 the not-too-distant in point Island the Rhode creating a statute passed Island Rhode dele- (Council) and Council Resources Management Coastal regulations authority promulgate the Council the gating Pub. I. 1971 R. land. See of the coastal usage restricting alleg- the scope clarify procedures prelitigation through certain occur did injury the that not mean does regulation infringing edly the whenever contrary, To the completed. were procedures those before as- is construction their regulations, construe their bodies local relevant the as after as well before meant [regulation] “what to reflect sumed Express, Roadway Rivers v. that construction.” rise to giving decision Inc., 298, 312-318 511 U. S. Rhode of State as the dispute, significant of subject is the point This devel on coastal limitations that evidence substantial presented has Island as Palazzolo’s. such schemes or limited always precluded have opment Nonetheless, must we assume 11-12, 41-46. Respondents for See Brief question. this deciding of purposes for the that it is true discrete deciding of purposes Likewise, assume for must we a poten- states complaint petitioner’s us that questions before threshold clarity of Nonetheless, sake for the takings claim. tially regulatory valid regula- view, adopted newly even a that, my emphasizing it is worth significant a produce does value of tion that diminishes (2) (1) is directed applicable generally if it is issue Takings Clause Carolina Cf. Lucas South v. public harm. a substantial preventing at (owner (1992) a astride powerplant Council, 505 U. S. 1003,1029 Coastal regulation for takings claim valid fault does not state earthquake an J., judg- id., (Kennedy, concurring of plant); requiring closure harm- against regulate ment) power government’s that the (explaining not limited is compensation paying without ful uses a confine “too narrow that because doctrine law of nuisance common interdependent complex ain power of regulatory exercise for the filling prohibiting regulation likely that quite It is society”). criteria. meets those wetlands §1
Laws, ch. seq. et The promptly Council adopted regulations that, alia, inter effectively petitioner foreclosed filling his wetlands. ante, See App. cf. 614; to Brief (current Respondents for 11-22 regulations). version of As regulаtions provided nonetheless for process through petitioner which might permission seek to fill the wetlands, he filed applications two permission for such during the 1980’s, both which were denied. See ante, at 614-615. reading petitioner’s most natural complaint is that' regulations precluded and of themselves him from fill- ing the wetlands, and their adoption therefore consti- alleged tuted taking. reading This is consistent with analysis (which the Court’s opinion Part II-A of join) its I in which explains the Court petitioner’s takings claims ripe are respondents’ decision because regula- wetlands tions unequivocally provide that there can be any “no fill for likely or Ante, foreseeable use.” at 621.4 regula- If it is the *30 tions themselves petitioner of which complains, and they if did, in fact, diminish the value of property, they his did so they adopted. when were
To the extent that adoption the regulations consti challenged tute the taking, petitioner simply is wrong the party bringing to be this action. If regulations the imposed compensable a injury anyone, it was on the owner of the property the regulations moment the adopted. were finding Given the trial petitioner court’s that did not own the property my judgment at that time,5 pellucidly it is clear 4At oral argument, petitioner’s counsel stated: “I think key the here is understanding filling no of any wetland would be allowed for any reason that was lawful under the local zoning code. No structures of any kind would permitted be by Mr. Palazzolo to construct. So we know that he cannot use his wetland.” Tr. Oral 14. Arg. (“[T]he See to App. Pet. for Cert. A-13 trial justice found that Palaz- zolo could not have become the owner of the property before which time the regulations his limiting to fill ability the wetlands were already place. The justice trial thus determined that the fill right the part wetlands was not of Palazzolo’s with, estate to begin and that he promulgation of the standing that the to claim he no has any part of taking the regulations constituted acquired. subsequently that he seems depend, the as Court standing does
His lack
to have
petitioner “is deemed
or not
assume, on whether
If
626.
ante, at
restriction,”
of an earlier-enacted
notice
owner’s
changed
character
early regulations
those
petitioner
thereby diminishing
value,
its
property,
title to the
dimin-
only
after that
acquired
net
that remained
value
respondents contend, see
course, if, as
Of
ishment occurred.
any right to fill
prior
had
supra,
owner never
3,n.
even
takings
alleged
for the
was a basis
wetlands,
never
there
theory of
accepting petitioner’s
place. But
claim in the first
preacquisition
standing
complain that
case,
no
he has
property that he
may
value
events
have reduced
im-
regulations
invalid,
because
acquired.
are
either
If the
adopted,
they
when
were
proper procedures were followed
Pennsylvania
gone
they
far,”
“too
have
or
somehow
because
(1922),
may
petitioner
Mahon,
393, 415
U. S.
Coal Co. v.
right to re-
no
enjoin
enforcement,
he has
their
but
seek to
compensation
taken
for the value of
cover
ejectment
may
ac-
an
A
maintain
new
someone else.
owner
own-
lodged
in the
against
trespasser
has
himself
who
tion
damages
fruit
surely
not recover
er’s
but
could
orchard
acquired
he
trespasser spirited
before
from the orchard
property.
Coastal
holding in Nollan v.
The Court’s
California
(1987),
fully
with this
consistent
Comm’n,
value of property. Even though they had notice they when bought the property that such a taking might they occur, never contended that any action by taken State before purchase their gave rise to any right to compen- sation. The matter of standing to assert a claim for just compensation is determined the impact of the event that alleged to have amounted to a taking rather than the sort of notice that a purchaser may or may not have received when the property was transferred. Petitioners in Nollan owned the property at the time of the triggering event. they Therefore, they alone could claim a right to com- pensation for injury.6 , Their successors in interest, like petitioner in this case, have no standing to bring such a claim.
Ill At argument, oral petitioner contended that the taking in question occurred in 1986,when the Council denied his final application to fill the land. Tr. of Arg. Oral 16. Though this theory, to the extent that it was embraced petitioner’s within actual complaint, complicates the issue, it does not alter my conclusion that prohibition on filling the wetlands does not take from any Palazzolo property right he ever possessed.
The title Palazzolo took by operation of law in 1978 was limited the regulations then in place to the extent that such regulations represented a valid police exercise of the power. For the expressed reasons I above, regu- think the lations petitioner barred from filling the wetlands on his property. At the very least, they however, established a rule that such lands could not be filled unless the Council
6In cases such as Nollan —in which landowners have notice of a regula tion whén they purchase a piece of property but the regulatory event constituting the taking does not occur until after they take titlе to the would treat the owners’ —I notice as relevant to the evaluation of whether the regulation goes far,” “too but not necessarily dispositive. ante, See at 632-636 (O’Connor, J., concurring).
644 under rule that to exceptions authority make to its
exercised Respondents for Brief App. to Cf. circumstances. certain the which under circumstances narrow (laying out A-13 exception”). “special grant a to the discretion retains Council to Pa- favorable most regulations reading the the Under discretionary right ato the than more acquired no he lazzolo, him to permit to toas whether by the Council determination body at- that hearings before two As his wetlands. the fill presentation to make opportunity given the test, was he prop- Thus, the Council determination. such a receive may retained rights have he limited erly respected whatever Fire Lujan G G v. & Cf. wetlands. filling regard to (2001) (holding, different in a 189 Inc., U. S. 532 Sprinklers, ais interest only relevant party’s aif that, context, provision of action, the bring an entitlement claim required to vindi- that is all is hearing that action forum 230 interest); U. S. Davis, 531 Lopez v. that cate (2001) entitle- an that created statute (involving a federal creating any entitle- hearing discretionary without ment to relief).7 ment to possibility that open the majority leaves
Though the at 629- ante, see may limited, prove holding today’s scope of princi- “background implicit in (discussing limitations J., at 632-636 ante, see also exception); ples” (O’Connor, regula- timing of importance of (discussing concurring) all of its insulate body can regulatory that a suggest is not This long referencing by simply Takings Clause decisions land-use regulators If determination statutory provisions. standing or exten interpretation an unforseeabie such involves project reject law, appro is then it in the change ato as to amount regulation of the sion of the adoption than rather body, of that thе decision to consider priate pre-existing of a the owner deprived that event discrete as the regulation, is not his claim theory, But, petitioner’s if in property. interest Ginsburg opin dissenting her Justice stated reasons for the ripe disposi Court’s and the complaint read ion, petitioner’s As I post, p. 645. allegedly themselves issue, the regulations it is ripeness of the tion the wetlands. to fill right of the parcel owner deprived *33 tions for the evaluation of the merits claim); of a takings post, (Breyer, 654-655 J., (same), dissenting) the extension of right the compensation to individuals other than the direct victim illegal of an taking admits of no obvious limiting prin- ciple. If the existence of valid regulations land-use does not limit the title that the postenactment first purchaser of the property inherits, then there is no why reason regula- such tions should limit rights the the second, third, or the purchaser. thirtieth Perhaps my concern is unwarranted, but today’s decision does spectre raise the of a tremendous— and tremendously capricious transfer of wealth —one-time society large to those individuals happen who to hold large title to tracts of land at the moment legal question this is permanently resolved.
IV In the analysis, final the interest at stake in this litigation is right the to fill the wetlands on the tract that petitioner owns. Whether either predecessors he or his title ever owned such an interest, if so, and when it was ac- quired by the State, are questions of state law. If it clear—as I think it is and as I think the disposition Court’s ripeness the issue any assumes—that taking such occurred before he became the owner of the property, he has no stand- ing to compensation seek for that taking. On the other hand, only if the takings viable claim has a predi- different cate that arose later, that claim ripe is not and the discussion in Part II-B of opinion Court’s is superfluous dictum. In either event, the judgment of the Rhode Suрreme Island Court should be affirmed in entirety. its Ginsburg, Justice with whom Justice Souter Breyer join, Justice dissenting. regulatory A takings claim ripe is not adjudication, this Court has held, until the agency administering regula- tions at issue, proceeding good faith, “has arrived at a final, position definitive regarding how it [those will apply question.” William particular land
regulations] to Bank v. Hamilton Planning Regional County Comm'n son (1985). such Absent1 172, 191 City, U. S. Johnson “kno[w] and extent nature cannot decision, court final there regulations, development” under permitted regulatory g[o],”as regulation^] say “how far fore cannot v. & Frates MacDonald, Sommer requires. takings law even Therefore, 348, 351 County, 477 U. S. Yolo develop permission is denied seeks and a landowner when im effective not demonstrate does the denial property, if repre does denial land, regulations on pact of the *34 dispute. ripe generate a requisite to decision” the “final sent County, 190. S., at 473 U. Williamson application highly ambitious how illustrates MacDonald case in that The landowner takings ripen claim. may not When 342. S., at 477 U. subdivision. a 159-home proposed that complained owner denied, the large proposal was that prop- of its use beneficial appropriated “all had the State con- Court id., This at 344. see also erty.” 8; 352, n. Id., ripe, claim was landowner’s however, that cluded, pos- “open the left development massive of the for the denial Id., permitted.” [would] development be sibility that some development grandiose exceedingly “Rejection at 352. imply logically that observed, “does plans,” Court re- similarly unfavorable plans will receive less ambitious n. 9. Id., 353, views.” Supreme Court, An- presented Island Rhode
As analogue MacDonald. awas close ease thony Palazzolo’s 18 Approximately components. two has land Palazzolo’s ecosystem. but delicate a rich that sustain are wetlands acres 2000). (R. Additionаl I. n. 710, and 2d 746 A. See (The “uplands.” environmentally sensitive are less acres ibid., because see doubt, upland remains acres number sur- or detailed accurate submitted “an never has Palazzolo (June 18-19,1997).) Rhode Tr. 190 vey” property, see of his au- permitting ultimate agency administrative Island’s
to tr- over the thority wetlands, the Coastal Resources Manage- ment Council (CRMC), bars residential development wetlands, but not the uplands. Palazzolo
Although submitted several to de- applications his velop those property, applications uniformly sought per- mission fill to most or all of the wetlands portion the prop- None erty. aimed to develop only uplands.1 Upon denial the last of Palazzolo’s applications, Palazzolo filed suit claiming Rhode Island had taken his property by “to allow refusing any development.” App. (Complaint 17). ¶ As the Rhode Island Court saw Supreme case, Palaz- zolo’s claim was not ripe several reasons, them, among that Palazzolo had not sought permission for “development only upland portion of the parcel.” 2d,A. at 714. The Rhode Island court emphasized the “undisputed evi- dence in the record that it would be possible to build at least one home on single-family the existing upland area, with no need for additional fill.” Ibid.
Today, Court rejects Rhode Island court’s determi- nation case is unripe, no finding as to “uncertainty 1Moreover, none proposed the 74-lot subdivision Palazzolo as advances the basis for the compensation he seeks. Palazzolo’s first application *35 to fill all sought 18 acres of wetlands for no stated purpose whatever. See (Palazzolo’s 11 App. sworn 1983 answer to the question why he sought (“Because fill uplands) it’s my right to do if I want to to look at it it is my business.”). Palazzolo’s second application proposed a most disagreeable ante, “beach (“trash club.” See at 615 bins” аnd “port-a-johns” sought); (June Tr. 650 1997) 25-26, (testimony of engineer Clarke) (to Steven M. e., i. Winnapaug Pond rather than the nearby At get to the water, club’s Ocean, “you’d lantic have to walk fill, across the gravel but then work your way through 70,75 approximately feet of marsh land or conservation grasses”). Neither of the CRMC applications supplied a clear ofmap the proposed (1983 development. 7, See App. 16 application); (June Tr. 190 1997) 18-19, (1985 application). The Rhode Island Supreme Court ulti mately concluded that the 74-lot development would have been barred zoning requirements, apart CRMC regulations, requirements Palaz- zolo never explored. 707, See 746 A. (2000). 2d n. 7 648 permitted [uplands’] Ante, at 622. The Court’s use.” inequitable. my view, is,
conclusion in both inaccurate ambiguous. it is And It is inaccurate because the record is inequitable given claim Palazzolo because, asserted pursue no courts, the Rhode Island the State cause had inquiry potential upland,development. But Pa- further into presses behest, the here, lazzolo claims and at his other only them, also the State’s entertains but turns Court originally legitimate against claim Palazzolo defense reject weapon against Pa- I would stated into a the State. judgment ploy lazzolo’sbait-and-switch and affirm Supreme Island Court. Rhode
[*]
[*]
[*]
physical occupation
issue,
Where
of land is not at
identify
taking.
regulatory
cases
two
Court’s
basic forms
at
In
Ante,
Council,
617.
Lucas
South
v.
Carolina Coastal
(1992),
subject
that,
Like the fed- landowner Palazzolo only straightforward appli- eral constitutional relief under a (Complaint App. ante, 615-616; cation Lucas. See 17) (“As ¶ proximate a direct and result of the Defendants’ development any property, has refusal to allow there added)); taking” (emphasis Mem- been a Plaintiff’s Post Trial (“[T]his I.), (Super. p. Ct., orandum.in 88-0297 Court No. R. beyond very case as its lucid and need look the Lucas taking precise whether a has oc- standards will determine (“[T]here curred.”); *36 id., at 9-10 is NO for the USE proffered one scintilla of evidence was whatsoever. . . . Not prove, State intimate suggest or even a theoretical possibility any use for this mind a bene- —never ficial use. Not once did State claim is, that there in fact, some use parcel.”); available for the Palazzolo Appel- Brief of (hereinafter lant in pp. 98-0333, No. 5,7,9-10 Appel- Brief of lant) (restating, verbatim, assertions of Post Trial Memoran- above). quoted dum
Responding to Palazzolo’s claim, Lucas urged the State as a sufficient defense this now point: uncontested CRMC been) [have “would happy to [Palazzolo] have situate a home” uplands, on the allowing [him] “thus to realize 200,000 dollars.” Post-Trial State’s Memorandum in No. 88-0297 I.), (Super. p. Ct., R. 81; see also Brief Appellees (hereinafter p. (Palaz No. 98-0333A, Appellees) Brief of zolo applied “never even for the realistic using alternative of home-site”). parcel the entire single unitary as a The State present did some evidence at trial that more than one lot developed. could be See at sup infra, 653-654. And, in a plemental post-trial memorandum addressing a then new Supreme Rhode Island Court decision, briefly the State urged that Palazzolo’s claims would fail even under Penn ante, Central. See at 624. The evidence of additional uses post-trial and the argument directed to Penn Central, how were ever, underdeveloped unnecessary, for Palazzolo himself, pleadings his and at pressed trial, only a Lucas- based claim that he had been economically denied all viable property. use of his Once the State demonstrated that an “economically development beneficial” genuinely plausi was ble, Lucas, 505 U. S., 1015, State had established the analogy to MacDonald: The record now showed “valuable might use still be made the land.” 477 S., U. 8;n. see Appellees Brief MacDonald). (relying 24-25 prospect development of real shown the State warranted ripeness dismissal of complaint. Palazzolo’s
Addressing the State’s Lucas defense terms, Lucas Pa- lazzolo insisted that his land had “no use ... aas result of *37 650 Appellant regulations.” Brief application itsof
CRMC’s rejected Palazzolo’s Supreme Court Island The Rhode 11. that Palazzolo argument, identifying in the record evidence 2d, at uplands. A. home on the at least one could build failure Palazzolo’s concluded that therefore 714. The court upland por- only “development of the permission for to seek “maintain could not parcel” that Palazzolo meant tion ha[d] all beneficial deprived him of claim that the CRMC property.” Ibid. of the use in the course courts, Island
It is true that the Rhode Penn Central. ruling briefly touched base State, for the underplayed point, however, ante, at 624. The critical Cf. argued the or raised Palazzolo never Court, is that complaint; system: his issue in the state Penn Central the trial after submissions; not—even not in his trial court briefing on his on the Penn Central issue—in court touched quickly raising and appeal. high decision, The state court permits con- unquestionably us to disposing matter, Raley Ohio, 360 U. S. v. issue. See sider Penn Central change ruling does not But the below 423, 436-437 takings litigated reality his here: Palazzolo essential against on the to defend claim, and it was State incumbent only under Lucas. claim, his ar- arguments in this had tracked If Palazzolo’s Court petition certiorari would guments сourts, his for the state got it argued simply courts have Rhode Island all wrong failing land “no use” at be- to see that his had Appellant This Court 11. of CRMC’srules. Brief cause appli- granted likely certiorari to review would not have Palazzolo’s the facts of MacDonald and Lucas to cation of sought— counsel, Palazzolo However, new case. aided obtained—re- of this Court’s discretion and in the exercise The first two he did not advance below. view of contentions regulations take the is that the state assertion Peti- Brief for 20; under Penn Central. See Pet. Cert. regulations argument that the The second tioner 47-50. taking amount ato under an expanded rendition of Lucas covering cases in which a landowner is left with property retaining only a “few crumbs of value.” Ante, (quot- ing 37); Brief for Petitioner Pet. for Cert. 20-22. Again, it repetition, bears Palazzolo never claimed in the courts below if that, the State were correct that his land could be used for *38 taking residence, a nonetheless occurred.2 support In of his new claims, Palazzolo has conceded the point very on which the State properly relied to resist the simple presented Lucas claim below: that Palazzolo can ob- approval tain for one house of substantial economic value. Palazzolo does merely accept argument that the State advanced below. He now contends that the evidence proffered by the State the Rhode Island supports courts presents he claims here, demonstrating only that one house approved. would be See Brief for Petitioner 13 (“[T]he uncontradicted evidence was that CRMC . . . would deny [Palazzolo] permission to build one single-family upland home on the portion small property.” his (emphasis deleted)); (the Pet. for Cert. 15 development extent of per- mitted on the “perfectly land is clear: single-family one home more”). and nothing logical
As a matter, argument Palazzolo’s does not stand up. The State’s submissions in the Rhode Island courts hardly establish that Palazzolo could approval obtain for only one house of By value. showing that Palazzolo could approval have obtained (rather for a $200,000house than, say, $400,000), two houses worth the State’s submissions es- only tablished a floor, not a ceiling, on the permissi- value of 2After this granted Court certiorari, in his briefing merits, on the Palaz- zolo presented still another takings theory. That theory, in tension e, numerous holdings Court, see, this g., Concrete Pipe & Products of Cal, Inc. v. Construction Laborers Pension Cal., Trust Southern for U. S. (1993), 643-644 predicated was on treatment of his wetlands as a property separate from the uplands. The Court properly declines Ante, reach this claim. 631. needed the State all For a floor value was ble development. Lucas claim. Palazzolo’s simple to defeat unfair: The argu- Palazzolo’s Furthermore, argument the only defense to the State’s legitimate ment transforms other for offensive into support below claim stated Palazzolo fair- time away first here. Casting for the claims states he (and less), no Court State, indulges fairness ness concludes The Court maneuver. Palazzolo’s bait-and-switch as to record in the is no “there ambiguity that genuine the uplands.” on . . . development extent permitted Ante, at 623. this are offered support Two theories conclusion. “too late the day” it is asserts,
First, the Court than more give to contend uplands State for certio- in his “stated” value; Palazzolo $200,000 petition $200,000,” “an worth has estimated rari Brief in its “as fact” cited contention the State Ante, of its the cited But in pages 622. in Opposition. *39 it approve said “would” in the State simply Brief Opposition, 4, 19. in $200,000. Brief home” worth Opposition a “single the that the not foreclose possibility does That statement alsо further home, adding another State would approve to the value property. t did overlook Palazzolo’s in sure, To be the Brief Opposition that, it been case, a had his the change in theory change the evi- have rendered insufficient earlier, asserted could But below. emphasized dence the State intelligently , that Palazzolo had moved to State’s failure appreciate waiver merits Court’s different shell hardly pea a footnote waiver, The cited for only precedent finding. Ante, at 622. Lucas, The land- in remotely point. Lucas had invoked the state of fact by owner “finding” in to that court, this deemed the and Court State’s challenge raised. was not timely because the challenge waived finding 1020-1022, extraordinary 9. There is S., nothing 505 U. n. made by a case on the findings about Court’s this deciding state court. Here, however, the “fact” this Court has stopped the contesting State from has —that only value of $200,000 by any never found court. —was That simply valuation was asserted, inaccurately, see infra page this petition in Palazzolo’s for certiorari. This ruling Court’s waiver thus amounts to an unsavory invitation unscrupulous litigants: Change your theory misrepre- your sent petition record for respond- certiorari; if the your ent fails to you note machinations, have created a differ- ent record on which this Court will review the case.
The Court bolsters finding by its waiver asserting that the figure $200,000 is “well founded” Ante, record. at 623. But, as earlier observed, an multiple absence of valuation possibilities in the against record cannot be held the State, proof of more than the development $200,000 was unnec- essary against to defend singularly Lucas claim pleaded any below. And event, record does not warrant the Court’s conclusion. acknowledges Court “testimony suggesting at trial
the existence of an upland parcel additional elsewhere on the property” оn which a second might house Ante, be built. at 623. The Court prospect, discounts that however, on the ground development parcel the additional would re quire a new road forbidden regulations. under CRMC’s Ibid. Yet the one witness on testimony whose the Court relies, Steven M. Clarke, himself concluded that it would be apply “realistic development for” at more than one loca (June 25-26, 1997). tion. Tr. 612 Clarke added that a state official, “gave Russell Chateauneuf, [Clarke] supporting in saying formation [multiple applications] made sense.” *40 The Ibid. conclusions of and Clarke Chateauneuf are con firmed testimony of CRMC’s executive director, Fugate, agreed Grover who with during Palazzolo’scounsel cross-examination might that Palazzolo be able to build “on perhaps two, perhaps three, four of the lots.” Id., at 211 (June 1997); (“[T]here 20-23, see also Arg. Tr. of Oral 27
654 is and there upland additional uncertainty toas what
is ... built.”). be many can other houses how They substantial. are thus in the record ambiguities required to not was resolution their part in because persist part be- in below, and presented claim Palazzolo address survey of accurate an to submit failed ever Palazzolo cause step would not circumstances, I property. Under his to resolve factfinder topographical supreme the role into to, look I Instead, would favor. Palazzolo’s in ambiguities decision whose court the state opinion of rely on, the and undisputed was “There opinion states: That review. we now at possible to build be it would that in the record evidence existing upland area.” on the single-family home one least nothing added). cites This Court (emphasis 2d, at 714 746A. finding.3 of that amendment to warrant [*] [*] [*] nature “the know not do we still case, see sum, I this In as regulation under development” permitted and extent there- would I at 351. S., 477 U. MacDonald, question, in judgment. Supreme Court’s Island Rhode fore affirm Breyer, dissеnting. Justice takings Ginsburg Palazzolo’s agree
I with Justice opinion join I her adjudication, and ripe claim is because But go further. Ordinarily no I would full. to ad- goes on ripe and be takings claim holds Court I takings law, add of substantive important issues some dress agree I would Jus- precedents, given Court’s that, this piece of simple fact that tice O’Connor inheritance) (for does example, changed hands has presented, properly the merits ripe and were If claim Palazzolo’s O’Connor, 682-686 post, with Justice minimum, would, agree I at a ante, concurring Stevens, (opinion Justice (concurring opinion), Breyer, page and this post Justice part), dissenting part claim. takings impair title can that transfer opinion), (dissenting *41 always and automatically bar a takings claim. Here, for example, any without way suggesting that Palazzolo has any takings valid claim, I believe his postregulatory acquisi- tion of (through law) operation automatic itself should prove dispositive. explains, As under Penn Central Justice O’Connor Transp. Co. v. New City, York (1978), U. S. 104 much
depends upon whether, or how, the timing and circum- stances change of a of ownership affect whatever reasonable expectations investment-backed might otherwise exist. Or- dinarily, expectations such will diminish in force signifi- rapidly and dramatically cance— continues to —as change hands over time. I believe that such factors can adequately be taken into account within the Penn Central framework. Several amici have warned that to complete allow regula
tory takings claims, see Lucas v. South Carolina Coastal Council, 505 (1992), U. S. 1003 to survive changes in land ownership could allow property owners to manufacture such claims strategically transferring property only until portion nonusable remains. g., See, e. Brief for Daniel W. Bromley et as al. Amici Curiae 7-8. IBut do not see how “ provision constitutional concerned jus ‘fairness and ” tice,’ Penn supra, Central, at 123-124 (quoting Armstrong v. United States, 364 (1960)), U. S. could any reward strategic such behavior.