Lead Opinion
delivered the opinion of the Court.
Petitioner Anthony Palazzolo owns a waterfront parcel of land in the town of Westerly, Rhode Island. Almost all of the property is designated as coastal wetlands under Rhode Island law. After petitioner’s development proposals were rejected by respondent Rhode Island Coastal Resources Management Council (Council), he sued in state court, asserting the Council’s application of its wetlands regulations took the property without compensation in violation of the Takings Clause of the Fifth Amendment, binding upon the State through the Due Process Clause of the Fourteenth Amendment. Petitioner sought review in this Court, contending the Supreme Court of Rhode Island erred in rejecting his takings claim. We granted certiorari.
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 that point is the boundary between Rhode
In later times Westerly’s coastal location had a new significance: It became a popular vacation and seaside destination. One of the town’s historians gave this happy account:
“After the Civil War the rapid growth of manufacture and expansion of trade had created a spending class on pleasure bent, and Westerly had superior attractions to offer, surf bathing on ocean beaches, quieter bathing in salt and fresh water ponds, fishing, annual sail and later motor boat races. The broad beaches of clean white sand dip gently toward the sea; there are no odorous marshes at low tide, no railroad belches smoke, and the climate is unrivalled on the coast, that of Newport only excepted. In the phenomenal'heat wave of 1881 ocean resorts from northern New England to southern New Jersey sweltered as the thermometer climbed to 95 and 104 degrees, while Watch Hill enjoyed a comfortable 80. When Providence to the north runs a temperature of 90, the mercury in this favored spot remains at 77.” Best, supra, at 192.
One of the more popular attractions is Misquamicut State Beach, a lengthy expanse of coastline facing Block Island Sound and beyond to the Atlantic Ocean. The primary point of access to the beach is Atlantic Avenue, a well-traveled 3-mile stretch of road running along the coastline within the town’s limits. At its western end, Atlantic Avenue is something of a commercial strip, with restaurants, hotels, arcades, and other typical seashore businesses. The pattern of development becomes more residential as the road winds eastward onto a narrow spine of land bordered to the south by the beaсh and the ocean, and to the north by Winnapaug Pond, an intertidal inlet often used by residents for boating, fishing, and shellfishing.
In 1959 petitioner, a lifelong Westerly resident, decided to invest in three undeveloped, adjoining parcels along this eastern stretch of Atlantic Avenue. To the north, the property faces, and borders upon, Winnapaug Pond; the south of the property faces Atlantic Avenue and the beachfront homes abutting it on the other side, and beyond that the dunes and the beach. To purchase and hold the property, petitioner and associates formed Shore Gardens, Inc. (SGI). After SGI purchased the property petitioner bought out his associates and became the sole shareholder. In the first decade of SGI’s ownership of the property the corporation submitted a plat to the town subdividing the property into 80 lots; and it engaged in various transactions that left it with 74 lots, which together encompassed about 20 acres. During the same period SGI also made initial attempts to develop the property and submitted intermittent applications to state agencies to fill substantial portions of the parcel. Most of the property was then, as it is now, salt marsh subject to tidal flooding. The wet ground and permeable soil would require considerable fill — as much as six feet in some
No further attempts to develop the property were made for over a decade. Two intervening events, however, become important to the issues presented. First, in 1971, Rhode Island enacted legislation creating the Council, an agency charged with the duty of protecting the State’s coastal properties. 1971 R. I. Pub. Laws, ch. 279, § 1 et seq. Regulations promulgated by the Council designated salt marshes like those on SGPs property as protected “coastal wetlands,” Rhode Island Coastal Resources Management Program (CRMP) §210.3 (as amended, June 28,1983) (lodged with the Clerk of this Court), on which development is limited to a great extent. Second, in 1978, SGPs corporate charter was revoked for failure to pay corporate income taxes; and title to the property passed, by operation of state law, to petitioner as the corporation’s sole shareholder.
In 1983, petitioner, now the owner, renewed the efforts to develop the property. An application to the Council, resembling the 1962 submission, requested permission to construct a wooden bulkhead along the shore of Winnapaug Pond and to fill the entire marshland area. The Council rejected the application, noting it was “vague and inadequate for a project of this size and nature.” App. 16. The agency also found that “the proposed activities will have significant im
Petitioner went back to the drawing board, this time hiring counsel and preparing a more specific and limited proposal for use of the property. The new application, submitted to the Council in 1985, echoed the 1966 request to build a private beach club. The details do not tend to inspire the reader with an idyllic coastal image, for the proposal was to fill 11 acres of the property with gravel to accommodate “50 cars with boat trailers^ a dumpster, port-a-johns, picnic tables, barbecue pits of concrete, and other trash receptacles.” Id., at 25.
The application fared no better with the Council than previous ones. Under the agency’s regulations, a landowner wishing to fill salt marsh on Winnapaug Pond needed a “special exception” from the Council. CRMP § 180. In a short opinion the Council said the beach club proposal conflicted with the regulatory standard for a special exception. See App. 27. To secure a special exception the proposed activity must serve “a compelling public purpose which provides benefits to the public as a whole as opposed to individual or private interests.” CRMP § 130A(l). This time petitioner appealed the decision to the Rhode Island courts, challenging the Council’s conclusion as contrary to principles of state administrative law. The Council’s decision was affirmed. See App. 31-42.
Petitioner filed an inverse condemnation action in Rhode Island Superior Court, asserting that the State’s wetlands regulations, as applied by the Council to his parcel, had taken the property without compensation in violation of the Fifth and Fourteenth Amendments. See id., at 45. The suit alleged the Council’s action deprived him of “economically, beneficial use” of his property, ibid., resulting in a total tak
The Rhode Island Supreme Court affirmed.
We disagree with the Supreme Court of Rhode Island as to the first two of these conclusions; and,, we hold, the court was correct to conclude that the owner is not deprived of all economic use of his property because the value of upland portions is substantial. We remand for further consideration of the claim under the principles set forth in Penn Central.
The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago,
Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications, see infra, at 629-630, that a regulation which “denies all economically beneficial or productive use of land” will require compensation under the Takings Clause. Lucas,
Petitioner seeks compensation under these principles. At the outset, however, we face the two threshold considerations invoked by the state court to bar the claim: ripeness, and acquisition which postdates the regulation.
A
In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City,
The central question in resolving the ripeness issue, under Williamson County and other relevant decisions, is whether petitioner obtained a final decision from the Council determining the permitted use for the land. As we have noted, SGI’s early applications to fill had been granted at one point,
The court based its holding in part upon petitioner’s failure to explore “any other use for the property that would involve filling substantially less wetlands.”
This is belied by the unequivocal nature of the wetland regulations at issue and by the Council’s application of the regulations to the 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 rule, is prohibited from filling or building residential structures on wetlands adjacent to Type 2 waters, see id., Table 1, p. 22, and § 210.3(C)(4), but may seek a special exception from the Council to engage in a prohibited use, see id., § 130. The Council is permitted to allow the exception, however, only where a “compelling public purpose” is served. Id., § 130A(2). The proposal to fill the entire property was not accepted under Council regulations and did not qualify for the special exception. The Council determined the use pro
Williamson County’s final decision requirement “responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Suitum v. Tahoe Regional Planning Agency,
These cases stand for the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development
With respect to the wetlands on petitioner’s property, the Council’s decisions make plain that the agency interpreted its regulations to bar petitioner from engaging in any filling or development activity on the wetlands, a fact reinforced by the Attorney General’s forthright responses to our questioning during oral argument in this case. See Tr. of Oral Arg. 26, 31. The rulings of the Council interpreting the regulations at issue, and the briefs, arguments, and candid statements by counsel for both sides, leave no doubt on this point: On the wetlands there can be no fill for any ordinary land use. There can be no fill for its own sake; no fill for a beach club, either rustic or upscale; no fill for a subdivision; no fill for any likely or foreseeable use. And with no fill there can be no structures and no development on the wetlands. Further permit applications were not necessary to establish this point.
As noted above, however, not all of petitioner’s parcel constitutes protected wetlands. The trial court accepted uncontested testimony that an upland site located at the eastern end of the property would have an estimated value of $200,000 if developed. App. to Pet. for Cert. B-5. While Council approval is required to develop upland property which lies within 200 feet of protected waters, see CRMP § 100.1(A), the strict “compelling public purpose” test does not govern proposed land uses on property in this classifica
In assessing the significance of petitioner’s failure to submit applications to develop the upland area it is important to bear in mind the purpose that the final decision requirement serves. Our ripeness jurisprudence imposes obligations on landowners because “[a] court cannot determine whether a regulation goes ‘too far’ unless it knows how far the regulation goes.” MacDonald, All U. S., at 348. Ripeness doctrine does not require a landowner to submit applications for their own sake. Petitioner is requirеd to explore development opportunities on his upland parcel only if there is uncertainty as to the land’s permitted use.
The State asserts the value of the uplands is in doubt. It relies in part on a comment in the opinion of the Rhode Island Supreme Court that “it would be possible to build at least one single-family home on the upland portion of the parcel.”
Nonetheless, there is some suggestion that the use permitted on the uplands is not known, because the State accepted the $200,000 value for the upland parcel on the premise that only a Lucas claim was raised in the pleadings in the state trial court. See Brief for Respondents 29-30. Since a. Penn Central argument was not pressed at trial, it is argued, the State had no reason to assert with vigor that more than a single-family residence might be placed on the uplands. We disagree; the State was aware of the applicability of Penn Central. The issue whether the Council’s decisions
A final ripeness issue remains. In concluding that Williamson County’s final decision requirement was not satisfied, the State Supreme Court placed emphasis on petitioner’s failure to “appl[y] for permission to develop [the] seventy-four-lot subdivision” that was the basis for the damages sought in his inverse condemnation suit.
It is difficult to see how this concern is relevant to the inquiry at issue here. Petitioner was informed by the Council that he could not fill the wetlands; it follows of necessity that he could not fill and then build 74 single-family dwellings upon it. Petitioner’s submission of this proposal would not have clarified the extent of development permitted by the wetlands regulations, which is the inquiry required
The state court, however, did not rely upon state-law ripeness or exhaustion principles in holding that petitioner’s takings claim was barred by virtue of his failure to apply for a 74-lot subdivision; it relied on Williamson County. As we have explained, Williamson County and our other ripeness decisions do not impose further obligations on petitioner, for the limitations the wetland regulations imposed were clear from the Council’s denial of his applications, and there is no indication that any use involving 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 the application makes clear the extent of develop
B
We turn to the second asserted basis for declining to address petitioner’s takings claim on the merits; When the Council promulgated its wetlands regulations, the disputed parcel was owned not by petitioner but by the corporation of which he was sole shareholder. When title was transferred to petitioner by operation of law, the wetlands regulations were in force. The state court held the postregulation acquisition of title was fatal to the claim for deprivation of all economic use,
The theory underlying the argument that postenactment purchasers cannot challenge a regulation under the Takings Clause seems to run on these lines: Property rights are created by the State. See, e. g., Phillips v. Washington Legal Foundation,
Nor does the justification of notice take into account the effect on owners at the time of enactment, who are prejudiced as well. Should an owner attempt to challenge a new regulation, but not survive the process of ripening his or her claim (which, as this case demonstrates, will often take years), under the proposed rule the right to compensation may not be asserted by an heir or successor, and so may not be asserted at all. The State’s rule would work a critical alteration to the nature оf property, as the newly regulated landowner is stripped of the ability to transfer the interest which was possessed prior to the regulation. The State may not by this means secure a windfall for itself. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S.
Direct condemnation, by invocation of the State’s power of eminent domain, presents different considerations from cases alleging a taking based on a burdensome regulation. In a direct condemnation action, or when a State has physically invaded the property without filing suit, the fact and extent of the taking are known. In such an instance, it is a general rule of the law of eminent domain that any award goes to the owner at the time of the taking, and that the right to compensation is not passed to a subsequent purchaser. See Danforth v. United States,
It is argued that Nolían’s holding was limited by the later decision in Lucas v. South Carolina Coastal Council,
We have no occasion to consider the precise circumstances when a legislative enactment can be deemed a background principle of state law or whether those circumstances are present here. It suffices to say that a regulation that other
For reasons we discuss next, the state court will not find it necessary to explore these matters on remand in connection with the claim that all еconomic use was deprived; it must address, however, the merits of petitioner’s claim under Penn Central. That claim is not barred by the mere fact that title was acquired after the effective date of the state-imposed restriction.
Ill
As the case is ripe, and as the date of transfer of title does not bar petitioner’s takings claim, we have before us the alternative ground relied upon by the Rhode Island Supreme Court in ruling upon the merits of the takings claims. It held that all economically beneficial use was not deprived because the uplands portion of the property can still be improved. On this point, we agree with the court’s decision. Petitioner accepts the Council’s contention and the state trial
Assuming a taking is otherwise established, a. State may not evade the duty to compensate on the premise that the landowner is left with a token interest. This is not the situation of the landowner in this case, however. A regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property “economically idle.” Lucas, supra, at 1019.
In his brief submitted to us petitioner attempts to revive this part of his claim by reframing it. He argues, for the first time, that the upland parcel is distinct from the wetlands portions, so he should be permitted to assert a deprivation limited to the latter. This contention asks us to examine the difficult, persisting question of what is the proper denominator in the takings fraction. See Michelman, Property, Utility, аnd Fairness: Comments on the Ethical Foundations of “Just Compensation Law,” 80 Harv. L. Rev. 1165, 1192 (1967). Some of our cases indicate that the extent of deprivation effected by a regulatory action is measured against the value of the parcel as a whole, see, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis,
* * *
For the reasons we have discussed, the State Supreme Court erred in finding petitioner’s claims were unripe and in ruling that acquisition of title after the effective date of the regulations barred the takings claims. The court did not err in finding that petitioner failed to establish a deprivation of all economic value, for it is undisputed that the parcel retains significant worth for construction of a residence. The claims under the Penn Central analysis were not examined, and for this purpose the case should be remanded.
The judgment of the Rhode Island Supreme Court is affirmed in part and reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Concurrence Opinion
concurring.
I join the opinion of the Court but with my understanding of how the issues discussed in Part II-B of the opinion must be considered on remand.
Part II-B of the Court’s opinion addresses the circumstance, present in this case, where a takings claimant has acquired title to the regulated property after the enactment of the regulation at issue. As the Court holds, the Rhode Island Supreme Court erred in effectively adopting the sweeping rule that the preacquisition enactment of the use restriction ipso facto defeats any takings claim based on that use restriction. Accordingly, the Court holds that petitioner’s claim under Penn Central Transp. Co. v. New York City,
The more difficult question is what role the temporal relationship between regulatory enactment and title acquisition
The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is “‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Penn Central, supra, at 123-124 (quoting Armstrong v. United States,
We have “identified several factors that have particular significance” in these “essentially ad hoc, factual inquiries.” Penn Central,
The Rhode Island Supreme Court concluded that, because the wetlands regulations predated petitioner’s acquisition of the property at issue, petitioner lacked reasonable investment-backed expectations and hence lacked a viable takings claim.
Further, the state of regulatory affairs at the time of acquisition is not the only factor that may determine the extent of investment-backed expectations. For example, the nature and extent of permitted development under the regulatory regime vis-a-vis the development sought by the claimant may also shape legitimate expectations without vesting any kind of development right in the property owner. We
If investment-backed expectations are given exclusive significance in the Penn Central analysis and existing regulations dictate the reasonableness of those expectations in every instance, then the State wields far too much power to redefine property rights upon passage of title. On the other hand, if existing regulations do nothing to inform the analysis, then some property owners may reap windfalls and an important indicium of fairness is lost.
Notes
Justice Scalia’s inapt “government-as-thief” simile is symptomatic of 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 by the State’s exercise of its police power. We have held that “[t]he ‘public use’ requirement [of the Takings Clause] is ... coterminous with the scope of a sovereign’s police powers.” Hawaii Housing Authority v. Midkiff,
Concurrence Opinion
concurring.
I write separately to make clear that my understanding of how the issues discussed in Part II-B of the Court’s opinion must be considered on remand is not Justice O’Connor’s.
The principle that underlies her separate concurrence is that it may in some (unspecified) circumstances be “[un]-fai[r],” and produce unacceptable “windfalls,” to allow a subsequent purchaser to nullify an unconstitutional partial taking (though, inexplicably, not an unconstitutional total taking) by the government. Ante, at 635. The polar horrible, presumably, is the situation in which a sharp real estate developer, realizing (or indeed, simply gambling on) the unconstitutional excessiveness of a development restriction that a naive landowner assumes to be valid, purchases property at what it would be worth subject to the restriction, and then develops it to its full value (or resells it at its full value) after getting the unconstitutional restriction invalidated.
This can, I suppose, be called a windfall — though it is not much different from the windfalls that occur every day at stock exchanges or antique auctions, where the knowledgeable (or the venturesome) profit at the expense of the ignorant (or the risk averse). There is something to be said (though in my view not much) for pursuing abstract “fairness” by requiring part or all of that windfall to be returned to the naive original owner, who presumably is the “rightful” owner of it. But there is nothing to be said for giving
In my view, the fact that a restriction existed at the time the purchaser took title (other than a restriction forming part of the “background principles of the State’s law of property and nuisance,” Lucas v. South Carolina Coastal Council,
Contrary to JUSTICE O’Connor’s assertion, ante, at 635, n., my contention of governmental wrongdoing does not assume that the government exceeded its police powers by ignoring the “public use” requirement of the Takings Clause, see Hawaii Housing Authority v. Midkiff,
Concurrence Opinion
concurring in part and dissenting in part.
In an admirable effort to frame its inquiries in broadly significant terms, the majority offers five pages of commentary on the issue of whether an owner of property can chal
HH
Though States and local governments have broad power to adopt regulations limiting land usage, those powers are constrained by the Constitution ánd by other provisions of state law. In adopting land-use restrictions, local authorities must follow legally valid and constitutionally sufficient procedures and must adhere to whatever substantive requirements are imposed by the Constitution and supervening law. If a regulating body fails to adhere to its procedural or substantive obligations in developing land-use restrictions, anyone adversely impacted by the restrictions may challenge their validity in an injunctive action. If the application of such restriction to a property owner would cause her a “direct and substantial injury,” e. g., Chicago v. Atchison, T. & S. F. R. Co.,
It by no means follows, however, that, as the Court assumes, a succeeding owner may obtain compensation for a taking of property from her predecessor in interest. A taking is a discrete event, a governmental acquisition of private property for which the State is required to provide just compensation. Like other transfers of property, it occurs at a
Precise specification of the moment a taking occurred and of the nature of the property interest taken is necessary in order to determine an appropriately compensatory remedy. For example, the amount of the award is measured by the value of the property at the time of taking, not the value at some later date. Similarly, interest on the award runs from that date. Most importantly for our purposes today, it is the person who owned the property at the time of the taking that is entitled to the recovery. See, e. g., Danforth v. United States,
Much of the difficulty of this case stems from genuine confusion as to when the taking Palazzolo alleges actually occurred. According to Palazzolo’s theory of the case, the owners of his Westerly, Rhode Island, property possessed the right to fill the wetland portion of the property at some point in the not-too-distant past.
The most natural reading of petitioner’s complaint is that' the regulations in and of themselves precluded him from filling the wetlands, and that their adoрtion therefore constituted the alleged taking. This reading is consistent with the Court’s analysis in Part II-A of its opinion (which I join) in which the Court explains that petitioner’s takings claims are ripe for decision because respondents’ wetlands regulations unequivocally provide that there can be “no fill for any likely or foreseeable use.” Ante, at 621.
To the extent that the adoption of the regulations constitute the challenged taking, petitioner is simply the wrong party to be bringing this action. If the regulations imposed a compensable injury on anyone, it was on the owner of the property at the moment the regulations were adopted. Given the trial court’s finding that petitioner did not own the property at that time,
His lack of standing does not depend, as the Court seems to assume, on whether or not petitioner “is deemed to have notice of an earlier-enacted restriction,” ante, at 626. If those early regulations changed the character of the owner’s title to the property, thereby diminishing its value, petitioner acquired only the net value that remained after that dimin-ishment occurred. Of course, if, as respondents contend, see n. 3, supra, even the prior owner never had any right to fill wetlands, there never was a basis for the alleged takings claim in the first place. But accepting petitioner’s theory of the case, he has no standing to complain that preacquisition events may have reduced the value of the property that he acquired. If the regulations are invalid, either because improper procedures were followed when they were adopted, or because they have somehow gone “too far,” Pennsylvania Coal Co. v. Mahon,
The Court’s holding in Nollan v. California Coastal Comm’n,
Ill
At oral argument, petitioner contended that the taking in question occurred in 1986, when the Council denied his final application to fill the land. Tr. of Oral Arg. 16. Though this theory, to the extent that it was embraced within petitioner’s actual complaint, complicates the issue, it does not alter my conclusion that the prohibition on filling the wetlands does not take from Palazzolo any property right he ever possessed.
The title Palazzolo took by operation of law in 1978 was limited by the regulations then in place to the extent that such regulations represented a valid exercise of the police power. For the reasons expressed above, I think the regulations barred petitioner from filling the wetlands on his property. At the very least, however, they established a rule that such lands could not be filled unless the Council
Though the majority leaves open the possibility that the scope of today’s holding may prove limited, see ante, at 629-630 (discussing limitations implicit in “background principles” exception); see also ante, at 632-636 (O’Connor, J., concurring) (discussing importance of the timing of regula
IV
In the final analysis, the property interest at stake in this litigation is the right to fill the wetlands on the tract that petitioner owns. Whether either he or his predecessors in title ever owned such an interest, and if so, when it was acquired by the State, are questions of state law. If it is clear — as I think it is and as I think the Court’s disposition of the ripeness issue assumes — that any such taking occurred before he became the owner of the property, he has no standing to seek compensation for that taking. On the other hand, if the only viable takings claim has a different predicate that arose later, that claim is not ripe and the discussion in Part II-B of the Court’s opinion is superfluous dictum. In either event, the judgment of the Rhode Island Supreme Court should be affirmed in its entirety.
A 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 constitutional principle (with the consequence that the State must choose between adopting a new regulatory scheme that provides compensation or forgoing regulation). While some recent Court opinions have focused on the former remedy, Justice Holmes appears to have had a regime focusing on the latter in mind in the opinion that began the modern preoccupation with “regulatory takings.” See Pennsylvania Coal Co. v. Mahon,
The Court argues, ante, at 628, that a regulatory taking is different from a direct state appropriation of property and that the rules this Court has developed for identifying the time of the latter do not apply to the former. This is something of an odd conclusion, in that the entire rationale for allowing compensation for regulations in the first place is the somewhat dubious proposition that some regulations go so “far” as to become the functional equivalent of a 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 a judicial proceeding. That we require plaintiffs making the claim that a regulation is the equivalent of a taking to go
This point is the subject of significant dispute, as the State of Rhode Island has presented substantial evidence that limitations on coastal development have always precluded or limited schemes such as Palazzolo’s. See Brief for Respondents 11-12, 41-46. Nonetheless, we must assume that it is true for the purposes of deciding this question.
Likewise, we must assume for the purposes of deciding the discrete threshold questions before us that petitioner’s complaint states a potentially valid regulatory takings claim. Nonetheless, for the sake of clarity it is worth emphasizing that, on my view, even a newly adopted regulation that diminishes the value of property does not produce a significant Takings Clause issue if it (1) is generally applicable and (2) is directed at preventing a substantial public harm. Cf. Lucas v. South Carolina Coastal Council,
At oral argument, petitioner’s counsel stated: “I think the key here is understanding that no filling of аny wetland would be allowed for any reason that was lawful under the local zoning code. No structures of any kind would be permitted by Mr. Palazzolo to construct. So we know that he cannot use his wetland.” Tr. of Oral Arg. 14.
See App. to Pet. for Cert. A-13 (“[T]he trial justice found that Palaz-zolo could not have become the owner of the property before 1978, at which time the regulations limiting his ability to fill the wetlands were already in place. The trial justice thus determined that the right to fill the wetlands was not part of Palazzolo’s estate to begin with, and that he
In cases such as Nollan — in which landowners have notice of a regulation whén they purchase a piece of property but the regulatory event constituting the taking does not occur until after they take title to the property — I would treat the owners’ notice as relevant to the evaluation of whether the regulation goes “too far,” but not necessarily dispositive. See ante, at 632-636 (O’Connor, J., concurring).
This is not to suggest that a regulatory body can insulate all of its land-use decisions from the Takings Clause simply by referencing longstanding statutory provisions. If the determination by the regulators to reject the project involves such an unforseeabie interpretation or extension of the regulation as to amount to a change in the law, then it is appropriate to consider the decision of that body, rather than the adoption of the regulation, as the discrete event that deprived the owner of a pre-existing interest in property. But, if that is petitioner’s theory, his claim is not ripe for the reasons stated by Justice Ginsburg in her dissenting opinion, post, p. 645. As I read petitioner’s complaint and the Court’s disposition of the ripeness issue, it is the regulations themselves that allegedly deprivеd the owner of the parcel of the right to fill the wetlands.
Dissenting Opinion
with whom Justice Souter and Justice Breyer join, dissenting.
A regulatory takings claim is not ripe for adjudication, this Court has held, until the agency administering the regulations at issue, proceeding in good faith, “has arrived at a final, definitive position regarding how it will apply [those
MacDonald illustrates how a highly ambitious application may not ripen a takings claim. The landowner in that case proposed a 159-home subdivision.
As presented to the Rhode Island Supreme Court, Anthony Palazzolo’s ease was a close analogue to MacDonald. Palazzolo’s land has two components. Approximately 18 acres are wetlands that sustain a rich but delicate ecosystem. See
Although Palazzolo submitted several applications to develop his property, those applications uniformly sought permission to fill most or all of the wetlands portion of the property. None aimed to develop only the uplands.
As the Rhode Island Supreme Court saw the case, Palaz-zolo’s claim was not ripe for several reasons, among them, that Palazzolo had not sought permission for “development only of the upland portion of the parcel.”
Today, the Court rejects the Rhode Island court’s determination that the case is unripe, finding no “uncertainty as to
* * *
Where physical occupation of land is not at issue, the Court’s cases identify two basic forms of regulatory taking. Ante, at 617. In Lucas v. South Carolina Coastal Council,
Like the landowner in MacDonald, Palazzolo sought federal constitutional relief only under a straightforward application of Lucas. See ante, at 615-616; App. 45 (Complaint ¶ 17) (“As a direct and proximate result of the Defendants’ refusal to allow any development of the property, there has been a taking” (emphasis added)); Plaintiff’s Post Trial Memorandum. in No. 88-0297 (Super. Ct., R. I.), p. 6 (“[T]his Court need not look beyond the Lucas case as its very lucid and precise standards will determine whether a taking has occurred.”); id., at 9-10 (“[T]here is NO USE for the property whatsoever. . . . Not one scintilla of evidence was proffered
Responding to Palazzolo’s Lucas claim, the State urged as a sufficient defense this now uncontested point: CRMC “would [have been) happy to have [Palazzolo] situate a home” on the uplands, “thus allowing [him] to realize 200,000 dollars.” State’s Post-Trial Memorandum in No. 88-0297 (Super. Ct., R. I.), p. 81; see also Brief of Appellees in No. 98-0333A, p. 25 (hereinafter Brief of Appellees) (Palazzolo “never even applied for the realistic alternative of using the entire parcel as a single unitary home-site”). The State did present some evidence at trial that more than one lot could be developed. See infra, at 653-654. And, in a supplemental post-trial memorandum addressing a then new Rhode Island Supreme Court decision, the State briefly urged that Palazzolo’s claims would fail even under Penn Central. See ante, at 624. The evidence of additional uses and the post-trial argument directed to Penn Central, however, were underdeveloped and unnecessary, for Palazzolo himself, in his pleadings and at trial, pressed only a Lucas-based claim that he had been denied all economically viable use of his property. Once the State demonstrated that an “economically beneficial” development was genuinely plausible, Lucas,
Addressing the State’s Lucas defense in Lucas terms, Pa-lazzolo insisted that his land had “no use ... as a result of
It is true that the Rhode Island courts, in the course of ruling for the State, briefly touched base with Penn Central. Cf. ante, at 624. The critical point, however, underplayed by the Court, is that Palazzolo never raised or argued the Penn Central issue in the state system: not in his complaint; not in his trial court submissions; not — even after the trial court touched on the Penn Central issue — in his briefing on appeal. The state high court decision, raising and quickly disposing of the matter, unquestionably permits us to consider the Penn Central issue. See Raley v. Ohio,
If Palazzolo’s arguments in this Court had tracked his arguments in the state courts, his petition for certiorari would have argued simply that the Rhode Island courts got it wrong in failing to see that his land had “no use” at all because of CRMC’s rules. Brief of Appellant 11. This Court likely would not have granted certiorari to review the application of MacDonald and Lucas to the facts of Palazzolo’s case. However, aided by new counsel, Palazzolo sought— and in the exercise of this Court’s discretion obtained — review of two contentions he did not advance below. The first assertion is that the state regulations take the property under Penn Central. See Pet. for Cert. 20; Brief for Petitioner 47-50. The second argument is that the regulations
In support of his new claims, Palazzolo has conceded the very point on which the State properly relied to resist the simple Lucas claim presented below: that Palazzolo can obtain approval for one house of substantial economic value. Palazzolo does not mеrely accept the argument that the State advanced below. He now contends that the evidence proffered by the State in the Rhode Island courts supports the claims he presents here, by demonstrating that only one house would be approved. See Brief for Petitioner 13 (“[T]he uncontradicted evidence was that CRMC . . . would not deny [Palazzolo] permission to build one single-family home on the small upland portion of his property.” (emphasis deleted)); Pet. for Cert. 15 (the extent of development permitted on the land is “perfectly clear: one single-family home and nothing more”).
As a logical matter, Palazzolo’s argument does not stand up. The State’s submissions in the Rhode Island courts hardly establish that Palazzolo could obtain approval for only one house of value. By showing that Palazzolo could have obtained approval for a $200,000 house (rather than, say, two houses worth $400,000), the State’s submissions established only a floor, not a ceiling, on the value of permissi
Furthermore, Palazzolo’s argument is unfair: The argument transforms the State’s legitimate defense to the only claim Palazzolo stated below into offensive support for other claims he states for the first time here. Casting away fairness (and fairness to a State, no less), the Court indulges Palazzolo’s bait-and-switch maneuver. The Court concludes that “there is no genuine ambiguity in the record as to the extent of permitted development on . . . the uplands.” Ante, at 623. Two theories are offered to support this conclusion.
First, the Court asserts, it is “too late in the day” for the State to contend the uplands give the property more than $200,000 in value; Palazzolo “stated” in his petition for certio-rari that the property has “an estimated worth of $200,000,” and the State cited that contention “as fact” in its Brief in Opposition. Ante, at 622. But in the cited pages of its Brief in Opposition, the State simply said it “would” approve a “single home” worth $200,000. Brief in Opposition 4, 19. That statement does not foreclose the possibility that the State would also approve another home, adding further value to the property. t
To be sure, the Brief in Opposition did overlook Palazzolo’s change in his theory of the case, a change that, had it been asserted earlier, could have rendered insufficient the evidence the State intelligently emphasized below. But the State’s failure , to appreciate that Palazzolo had moved the pea to a different shell hardly merits the Court’s waiver finding. The only precedent cited for the waiver, a footnote in Lucas, is not remotely on point. Ante, at 622. The landowner in Lucas had invoked a “finding” of fact by the state court, and this Court deemed the State’s challenge to that finding waived because the challenge was not timely raised.
The Court bolsters its waiver finding by asserting that the $200,000 figure is “well founded” in the record. Ante, at 623. But, as earlier observed, an absence of multiple vаluation possibilities in the record cannot be held against the State, for proof of more than the $200,000 development was unnecessary to defend against the Lucas claim singularly pleaded below. And in any event, the record does not warrant the Court’s conclusion.
The Court acknowledges “testimony at trial suggesting the existence of an additional upland parcel elsewhere on the property” on which a second house might be built. Ante, at 623. The Court discounts that prospect, however, on the ground that development of the additional parcel would require a new road forbidden under CRMC’s regulations. Ibid. Yet the one witness on whose testimony the Court relies, Steven M. Clarke, himself concluded that it would be “realistic to apply for” development at more than one location. Tr. 612 (June 25-26, 1997). Clarke added that a state official, Russell Chateauneuf, “gave [Clarke] supporting information saying that [multiple applications] made sense.” Ibid. The conclusions of Clarke and Chateauneuf are confirmed by the testimony of CRMC’s executive director, Grover Fugate, who agreed with Palazzolo’s counsel during cross-examination that Palazzolo might be able to build “on two, perhaps three, perhaps four of the lots.” Id., at 211 (June 20-23, 1997); see also Tr. of Oral Arg. 27 (“[T]here
The ambiguities in the record thus are substantial. They persist in part because their resolution was not required to address the claim Palazzolo presented below, and in part because Palazzolo failed ever to submit an accurate survey of his property. Under the circumstances, I would not step into the role of supreme topographical factfinder to resolve ambiguities in Palazzolo’s favor. Insteаd, I would look to, and rely on, the opinion of the state court whose decision we now review. That opinion states: “There was undisputed evidence in the record that it would be possible to build at least one single-family home on the existing upland area.”
* * *
In sum, as I see this case, we still do not know “the nature and extent of permitted development” under the regulation in question, MacDonald,
Moreover, none proposed the 74-lot subdivision Palazzolo advances as the basis for the compensation he seeks. Palazzolo’s first application sought to fill all 18 acres of wetlands for no stated purpose whatever. See App. 11 (Palazzolo’s sworn 1983 answer to the question why he sought to fill uplands) (“Because 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 “beach club.” See ante, at 615 (“trash bins” and “port-a-johns” sought); Tr. 650 (June 25-26, 1997) (testimony of engineer Steven M. Clarke) (to get to the club’s water, i. e., Winnapaug Pond rather than the nearby Atlantic Ocean, “you’d have to walk across the gravel fill, but then work your way through approximately 70,75 feet of marsh land or conservation grasses”). Neither of the CRMC applications supplied a clear map of the proposed development. See App. 7, 16 (1983 application); Tr. 190 (June 18-19, 1997) (1985 application). The Rhode Island Supreme Court ultimately concluded that the 74-lot development would have been barred by zoning requirements, apart from CRMC regulations, requirements Palaz-zolo never explored. See
After this Court granted certiorari, in his briefing on the merits, Palaz-zolo presented still another takings theory. That theory, in tension with numerous holdings of this Court, see, e, g., Concrete Pipe & Products of Cal, Inc. v. Construction Laborers Pension Trust for Southern Cal.,
If Palazzolo’s claim were ripe and the merits properly presented, I would, at a minimum, agree with Justice O’Connor, post, at 682-686 (concurring opinion), Justice Stevens, ante, at 643 (opinion concurring in part and dissenting in part), and Justice Breyer, post this page and 655 (dissenting opinion), that transfer of title can impair a takings claim.
Dissenting Opinion
dissenting.
I agree with Justice Ginsburg that Palazzolo’s takings claim is not ripe for adjudication, and I join her opinion in full. Ordinarily I would go no further. But because the Court holds the takings claim to be ripe and goes on to address some important issues of substantive takings law, I add that, given this Court’s precedents, I would agree with Justice O’Connor that the simple fact that a piece of property has changed hands (for example, by inheritance) does not
As Justice O’Connor explains, under Penn Central Transp. Co. v. New York City,
Several amici have warned that to allow complete regulatory takings claims, see Lucas v. South Carolina Coastal Council,