*1 SUITUM v. TAHOE REGIONAL PLANNING AGENCY
No. 96-243. Argued February 1997 Decided May *3 argued petitioner. R. S. the cause for With him Radford on the briefs Wolski, were Robin L. Rivett, Victor J. and Patterson William Cashill. argued respondent.
Richard J. Lazarus the cause for Byrne, With him on the brief were Peter J. J. Thomas Hartigan, Susich, Nicolle, Vicki E. Rachelle J. and Susan Scholley. E.
Deputy argued General Wallace the cause for Solicitor urging the United as States amicus curiae affirmance. Acting With him on the brief were Dellin- Solicitor General ger, Attorney Almy, Assistant General Anne S. and Schiffer, Bryson.* A. John
*Briefs of amici curiae urging reversal were filed for the American by Timothy F. Bishop, S. Michael Rosen- Farm Bureau Federation et al. blum, Rademacher, Krause; John J. L. Richard Building and for In- Richard M. and John M. of Stephens dustry Washington Association by Marzulla; Groen; for the et al. Rancie G. of Property Rights by Defenders Mellor, Bolick, for the Institute of Justice William H. Clint Scott G. by Bullock, and A. Epstein; Richard for Foundation Legal the Southeastern III; for by Henry Granberry D. the Tahoe Lakefront Owners’ Association Zumbrun, Hubbard; A. H. Findley, Ronald John and Meriem L. for by Council, Inc., L. Hoffman; Lawrence the Tahoe-Sierra and by Preservation L. Charles Siemon. by et al. Mayhews for the Briefs of amici curiae for affirmance were filed the Governor urging Mantell; A.
California et al. Michael by et al. for'the State Nevada Papa, Attorney Frey Frankie Del and William J. Nevada, Sue General of Howie, General, and Wayne C. Deputy Attorneys Attorneys opinion delivered the of the Court. Justice Souter Suitum owns land near the Nevada Petitioner Bernadine Regional Planning Respondent Tahoe shore of Lake Tahoe. region, Agency, regulates land use in the determined which ineligible for but enti- Suitum’s allegedly valuable “Transferable De- to receive certain tled (TDR’s). brought velopment Rights” an action Suitum § §1979, S. compensation under Rev. Stat. U. C. reg- agency’s claiming determinations amounted that the pleadings raise ulatory taking property. While the of her significance the TDR’s both to the claim about issues require- taking to the constitutional has occurred and that a compensation, decide, just we have no occasion ment may be whether or not these TDR’s decide, we do not deciding whether there has been issue considered just com- opposed case, to the issue whether this taking. sole pensation such a has been afforded for ripe adjudication, question whether the claim is here is follows: S. Bronster respective Margery for their States as General *4 Curran, Jr., Vermont, Mary- of Hawaii, Joseph L. of J. Amestoy Jeffrey Montana; Jersey by of New land, for the State P. Mazurek Joseph and Verniero, Jacobson, General, Attorney Mary C. Assistant Attorney Peter General; Horowitz, General, Attorney for the State Deputy and Rachel J. Billett, Vacco, General, Barbara G. Attorney by of New York Dennis C. General, J. General, Solicitor and John Deputy Peter H. Solicitor Schiff Burianek, General; City for the Attorneys M. Assistant Sipos and Lisa Koerner, McGrath, J. by Stephen A. Leonard J. Crotty, New York Paul Tahoe E. Clement by for the to Save Lake Cheryl Payer; League and Jr., Shute, of Cities et al. Christy Taylor; League H. for the National and Ruda; for for the National Trust Historic Preservation Richard and by den, Renne, Jeffrey H. R. et S. Louise Kay United States al. Jerold Elizabeth S. Merritt. Lyman, and Association Planning for the American of amici curiae were filed Briefs III; for the Columbia River Carey W. and H. Bissell
by Brian Blaesser Watters; for the National Association by Lawrence Gorge Commission Liebesman, Mary R. Delaney, et al. John J. Lawrence Home Builders DiCrescenzo, Cammarota; et for Dr. Nicholas al. and Nick and James V. D. Echeverría. by John
729 though even attempted Suitum has not to develop- sell the rights ment eligible she has or is to receive. We hold that it is.
I Congress approved 1969, In Regional Planning Tahoe Compact between the States California and Nevada, creat- ing respondent agency as an regulate interstate develop- ment in the Lake Country Tahoe basin. See Estates, Lake Regional Inc. Planning Agency, v. Tahoe 440 U. 391, S.
(1979). compact proven After the inadequate had for protection of the lake and its pro- environment, the States posed Congress approved requir- 1980, amendment in ing adopt plan barring any exceeding specific such carrying “environmental threshold capacities” agency might appropriate. as the find L. Pub. 1(b),V(b), V(g), 96-551, Arts. Stat. 3239-3241.1 agency adopted Regional provid- In a new Plan (IPES) ing System” for an “Individual Parcel Evaluation suitability parcels rate of vacant building residential Regional Planning other Agency modification. Tahoe (TRPA Code). any Code of Ordinances, ch. 37 Whereas qualify must attain a minimum IPES score to id., App. undeveloped construction, parcel §37.8.E; 145, an (known carrying in certain areas runoff into the watershed (SEZ’s)) as “Stream Environment Zones” receives an IPES 37.4.A(3). § score excep- zero, TRPA Code With limited agency permits here, tions relevant no “additional coverage permanent land or other land disturbance” on such § parcel. Id., 20.4. *5 1The 1980 compact defines carrying capac “[environmental threshold ity” as “an environmental standard to maintain a necessary significant scenic, recreational, educational, scientific or natural value the region or to maintain public safety health and within the Such region. standards shall include but not be limited to quality, quality, standards for air water conservation, soil vegetation II(i), preservation and noise.” Art. 94 Stat. 3235. plan agency’s provide for
Although does not exceptions schemes, of conventional land-use variances by sharpness potential of its restrictions it addresses the may to owners property TDR’s that be sold granting owners eligible id., to parcels construction, §§20.3.C,34.0 34.3. An owner TDR’s. are three kinds of residential There Development Right” and a “Resi- needs both a “Residential on a place a residential unit buildable Allocation” to dential permits construction parcel, §§21.6.C, the latter id., 33.2.A; year’s year, expires end, begin specific but in a calendar to 33.2.B(3)(b). § have “Land id., An owner must also Cover- impermeable placed square age Rights” foot of cover for each App. Code, ch. 20. All own- upon 145;see also TRPA land. parcels existed at the effective ers of vacant residential 1987),including parcels, (July plan SEZ date of the 1987 Development Right, automatically Residential receive one § may and trans- property obtain id., owners of 21.6.A; SEZ points equivalent three Residential additional fer bonus property Rights, Development id., §§35.2.C, 35.2.D. SEZ authorizing Coverage Rights cov- Land owners also receive equal area of their erage 1% of the surface of an area Finally, owners, like other §§20.3.A,37.11. SEZ Id., land. Allocation, may apply for a Residential owners, drawings jurisdictions each in random local awarded year.2 App. of TDR’s Id., §33.2.B; All three kinds 98-99. any eligible property the benefit of be transferred for agency region, subject approval in the Lake Tahoe develop- receiving parcel eligibility on the based to 34.3. §§20.3.C, TRPA 34.1 ment. Code bought undevel- late husband and her In Suitum agency’s County, within the oped Nevada, lot in Washoe adoption years of the 1987 jurisdiction, later, after and 17 that “at this represented oral argument Counsel for allocations” in Washoe than there are applicants there are “fewer point” located, percent a “100 and there is thus where land is County, petitioner’s Arg. Tr. of Oral 39-40. winning [drawing].” chance
731 Regional Plan, Suitum obtained a Residential Allocation through County’s Washoe drawing. annual When she then applied agency permission to the a construct house on agency lot, her property determined that her was located assigned within SEZ, it an zero, IPES score of and denied permission appealed to build. Suitum the denial to the agency’s governing board, which itself denied relief. agency
After request turned down the building for a permit, Suitum made no any effort to transfer of the TDR’s that plan, were hers under the dispute is no there Development Right that she still has the one Residential undeveloped automatically plus received, owners of lots Rights Coverage square got Land for 183 feet that she square 18,300 the owner of feet of It SEZ land. is also com- ground right mon that Suitum has the to receive three Development Rights. Although “bonus” Residential Suitum certainty questioned has she would obtain new agency sought if one, Residential Allocation she represented undoubtably would, to this Court she see supra. 2,n. § brought
Instead, this 42 Suitum U. S. C. 1983 action al leging denying right her that in to construct a house on agency’s deprived lot, her restrictions her of “all reason economically property, viable able and use” of her and so just compensa amounted to a of her without tion in violation of the Fifth and Fourteenth Amendments.3 App. responded objecting, among 15, 16. The things, ripe other that Suitum’s claim was not due to her “failure to obtain final decision as to the TRPA by” amount of . . . that be allowed agency. summary judg Id., at 10. On cross-motions for supplemental briefing ment, District Court ordered have complaint may process Suitum’s also raised due substantive claims, 16, 153, see but her for a writ of equal protection App. petition certiorari did address those issues and are not considered here. See n. infra. *7 including [TDR’s] TDR’s,
the nature of Suitum’s “what can [Suitum’s] procedures, prereq be transferred case and the applicable in and value of such transfer as this case.” uisites agency Id., 89. The introduced an affidavit from a real at opinion appraiser, whose was that the Residential estate Right already Development has, and the three that Suitum entitled, to which she is have market value between more Rights Coverage $2,500 her Land can each; that $1,500 total); ($1,098~$2,196 per square for foot $12 be sold to$6 all sell for $7,125 that her lot devoid of TDR's would appraiser Id., if also said that $16,750. at 181-132. The sell it were to obtain a Residential Allocation and Suitum bring Right, together Development be would with a spite fig $35,000. Ibid. As if $30,000and tween supplied.by however, the main affidavit, own its ures program [TDR] for of the the “actual benefits tained that appropriate pursues only [Suitum]... if she an can be known claim application,” Suitum’s [transfer] with the result that part, adjudication. Id., 91. For her ripe was not trying her TDR’s would to transfer insisted Suitum ” “ program is a TDR and futile act’ because ‘idle agency’s supplied of one the affidavit “sham,”4 and she employees “there is little to no whose view was former present TDR’s] . . as . either [Suitum’s time value procedure is] for transfer [there market for them or no opportunity right particular ring restrict would one remaining right.” Id., at 135.5 transfer claim was that Suitum’s Court decided District The things “[a]s stand, there now ripe consideration because Concerning its Response to Defendant’s Memorandum See Suitum’s Program 1-2. Development Transfer of however, affidavit, “[t]here because disregarded this District Court to the valuation expert... is an [Suitum’s affiant] showing no [was] Procedure satisfy Rule of Civil rights” sufficient to Federal (D. 30, 1994), Nev., App. to Pet. for 56(e). Mar. No. CV-N-91-040-ECR C-2, n. 1. Cert.
is no final [Suitum] decision as to how will be allowed (D. property.” to use her No. Nev., CV-N-91-040-ECR 1994), App. Mar. Although to Pet. for Cert. C-3. significant court found that “there is value transfer of [Suitum’s [specific] . . until TDR’s], . values attributable to program the transfer are known, the court cannot realisti- cally [the agency’s] assess whether and to regu- what extent [Suitum’s] expectations.” lations have frustrated reasonable Id., at C-3 to C-4. *8 Appeals
The Court of for the Ninth Circuit affirmed this ripeness ruling “[without applica- for the like reason that development rights” tion for the transfer of would there way regulations’ no to “know the impact full economic or degree [Suitum’s] of their interference with reasonable expectations,” investment-backed and without action a “ application transfer there would be no ‘final decision from agency] regarding [the application regulation^] of the (1996). property 359, at issue.’”6 80 F. 3d 362-363 We granted ripeness certiorari to consider the tak- Suitum’s (1996), ings claim, 926 519 U. S. and now reverse. II only presented
The issue whether Suitum’s claim of a regulatory taking of her land in violation of the Fifth and ready judicial Amendments is Fourteenth for review under prudential ripeness principles.7 independent There are two ripeness requirements,” developed “[t]hese
6 The court held that while context, regulatory taking equally applicable process “are to the due 3d, 362, equal protection only claims.” 80 F. n. 1. We address claim, however, ripeness requirements for and express Suitum’s opinion ripeness no on the of her other claims. 7 ripeness “We have noted that doctrine is drawn both from Article III judicial power prudential refusing limitations on and from reasons Services, Inc., jurisdiction.” Reno v. Catholic Social exercise U. 509 S. (1993). 57, 43, question n. 18 does not properly Suitum presents controversy” III, a genuine satisfy “case or sufficient Article only but maintains satisfy prudential ripe that Suitum’s action fails to our requirements. ness
734 prudential regulatory takings brought hurdles to claim against entity County a state in federal court. Williamson Regional Planning v. Hamilton Bank Comm’n Johnson (1985), City, explained plaintiff 172 that a U. S. must she demonstrate that has both received “final decision re- application regulations garding [challenged] to the entity government charged at issue” from “the regulations,” implementing sought id., 186, with pro- “compensation through procedures the State has doing requirement id., fol- so,” at 194. The first vided principle only regulation “goes too from the lows Pennsylvania Mahon, v. 260 U. far,” Coal Co. S.
(1922), taking see, Amendment, Fifth in a under the results County, 477 g., & Frates v. Yolo MacDonald, Sommer e. (1986) (“A whether a cannot determine court S.U. how far the gone far’ unless it knows regulation ‘too v. Coastal regulation goes”); also Lucas South Carolina see “ (1992) ‘goes (regulation 1003, 1014-1019 Council, 505 U. S. ” leas[t] the extraordi- “at in a and results too far’ *9 economically productive bene- or nary no when circumstance hurdle stems permitted”). The second use of land is ficial takings only proviso with- that Fifth Amendment’s from the “if a infringe Amendment; compensation” that “just out just seeking procedure com- adequate for provides an State a violation of claim property owner cannot pensation, the procedure it has used Compensation until Clause Just County, just compensation,” Williamson and been denied prong only “final decision” supra, Because at 195. this before below briefed was addressed Williamson that issue.8 here to our discussion Court, we confine 8 County’s Williamson proce “state decide whether therefore do not We plaintiff a Ordinarily, this case. satisfied in has been requirement dures” proceedings inverse condemnation state through compensation must seek court, does not unless the State in federal suit initiating before Williamson See obtaining compensation. for adequate remedies provide argument at oral Suitum’s counsel stated S., at 194-196. County, 473 U.
735 A holding In Suitum’s claim unripe, to be the Ninth Circuit agreed agency’s with the argument that Suitum had failed to obtain a final and authoritative agency decision from the satisfy sufficient to prong the first County, of Williamson supra. Although it is unclear agency urges whether the still precisely position before g., this Court, e. see, Brief for Respondent “[w]e (conceding 21 know the full extent of regulation’s impact restricting petitioner’s develop- land”), ment of her important own emphasize we think it adopted that the rationale in the decision under review is unsupported precedents. our Agins City (1980), Tiburon, v. 447 U. 255 is the first S. employed ripeness
case in which this Court a notion of declining as-applied regulatory to reach the merits of an tak Agins, ings challenged claim.9 In the landowners who zon that “the of the Tahoe do position Regional Planning Agency is that .. for Tr. provisions paying just compensation,” Arg. not. have of Oral that the is not suggesting agency subject thus inverse condemnation agency’s position and the counsel did not Suitum’s proceedings, disagree. remedy to be that the sole appears against therefore §a suit such as she just compensation damages, without 1983 Council, v. Inc. Tahoe brought here. Cf. Tahoe-Sierra Preservation (CA9 1990). We Planning Agency, 911 F. 2d 1341-1342 Regional matter to the Court of on remand. Appeals leave this earlier, years City, in Penn Central Co. v. New York Transp. Two (1978), that the U. we reached the merits Penn Central’s claim S. permis Landmarks Commission’s denial of City New York Preservation an office Central Terminal was building top sion to construct Grand despite observation that taking, our maintained, record, on this have been simply appellants “it cannot *10 any airspace from of the above the Terminal. prohibited occupying portion an office [City’s] denying applications While the actions construct it in excess of 50 stories above the Terminal indicate that building comparably of appropriateness any will refuse to issue a certificate structure,... [City emphasized any sized that whether construc- [t]he has] depended upon whether the addition proposed tion would be allowed material, scale, harmonize in and character with Termi- [the ‘would 736
ing restricting ordinances the number of houses could property seeking approval build on their sued without any particular development on their land. We held that the justiciable only point issue was whether mere enact taking.10 Id., ment of the statute amounted to a at 260. employing “ripeness,” explained the term Without Court “ha[d] plan the owners that because not submitted a for de velopment [challenged] their as the ordinances [was] permitted], yet controversy there concrete re no garding application specific zoning provisions.” of the Ibid. Virginia Mining following Term, & Hodel v. Surface (1981),toughened Inc., S. 264 our Assn.,
Reclamation 452 U. producers ripeness requirement. There, coal nascent Mining challenged enactment of the Surface landowners § et S. 1201 1977, Act of 30 U. C. and Reclamation Control Agins, property. we con- As in seq., of their as a reasoning challenge unripe, as-applied was an cluded appellees record that “[t]here is no indication provided opportunities ha[d] themselves of availed by requesting a vari- ... relief administrative Act to obtain S., provisions Act],” 452 U. [applicable of the ance from regulatory regime where the thus held that 297.11 Hodel for the construction approval have not appellants sought Since nal].’ structure, any be denied not know that will appellants we do a smaller Id., at 136-137 the Terminal.” above any portion airspace use omitted). (citation 10 the moment ripe generally are regulation “facial” challenges Such bat “uphill but face passed, or ordinance challenged regulation DeBenedictis, S. 480 U. v. tle,” Coal Assn. Bituminous Keystone of a enactment’” that ‘“mere (1987), it is difficult to demonstrate since [his] viable use of economically [the owner] “deprived of legislation piece Inc., Assn., & Reclamation Virginia Mining v. Hodel property.” Surface (1981). challenge purport does not Suitum 452 U. S. on their face. regulations agency’s challenge “facial” Agins, plaintiffs’ we found the Hodel As in S.,U. at 295-297. it out on the merits. 452 but ruled ripe, to be *11 possibility offers the require- a variance from its facial go beyond ments, a landowner must submitting plan a development actually and ripen seek such a variance to his claim. County Regional Planning
Williamson
Comm’n v. Ham-
(1985),
City,
ilton Bank
Johnson
MacDonald, Sommer & Frates v. Yolo 477 U. S. (1986), County’s requirement reaffirmed Williamson agency position. pur- developer MacDonald, a final In property presented plan chased a tentative subdivision planning to the local commission. After the commission' proposal regula- zoning treated as inconsistent with the respects, developer immediately tions in several filed relying dry suit. Without even on the character of the run merely plan, emphasized submission of tentative we litigation given that in the course of two state courts had opinions possible was *12 flatly contrary regulations question, in to the de-
under conclusory allegation required veloper’s regulations that the greenbelt public gratuity. provide him a as a See unripe claim Hence, we held the under S.,U. at 345-347. County: [of] effect “‘the the rationale Williamson zoning application ordinance ... Commission’s respondent’s property until ... cannot be measured value of regulations be how the will final is made as to a decision supra, [the developer’s]property.’” MacDonald, applied to 199-200). supra, County, (quoting at Williamson at zoning question Leaving of how definitive a local aside County’s satisfy be to Williamson demand decision must ap- points requirement finality,12 are clear: it about two takings plaintiff’s plies own land to decisions about how a high degree may responds of discretion used, be and it to the softening characteristically possessed in land-use boards they regulations general administer. the strictures agencies charged MacDonald, “local in As the Court said property develop- administering regulations governing with singularly institutions; take with flexible what are ment they may give S., 477 U. the other.” back with the one hand brought flexibility be or discretion such at 350. When singular permissible as use of to bear on the 12MacDonald, County “final decision” suggested that Williamson ap multiple or variance require proposals might sometimes requirement wrote, ripe. We will considered landowner’s case be plications before a grandiose development plans “[Rejection exceedingly example, that similarly will receive plans imply that less ambitious logically does 9; compare S., n. Williamson 477 U. unfavorable reviews.” position on S., final definitive (applicant must obtain County, at 191 473 U. id., with at 193 question), applied be to the land regulations will how specific proposed whether determination must obtain conclusive (applicant urge Mayhews al. us to permitted). Amici the et will be only single proposal need make a plaintiff that a establish rule ripeness his claim. ensure the single request for a variance to and a presented That issue is not Mayhews Amici 22. et al. as Curiae Brief for in this case.
parcel judgment land, a sound about what use will al- simply by asking parcel’s lowed cannot be made whether a proposal’s facially characteristics or details conform to the general regulations. terms of the use finality The demand for claim, is satisfied Suitum’s how- being question ever, there no “regula- here about how the [apply] particular tions question.” at issue to the land County, supra, undisputed Williamson It 191. finally petitioner’s “has determined that land lies *13 entirely Respondent SEZ,” within an Brief for it and that may “[n]o permit coverage therefore additional or land other permanent parcel, land disturbance” on the TRPA Code §20.4. agency Because the has no exercise discretion to right over Suitum’s to use her no land, occasion exists applying County’s requirement Williamson land- steps owner take to obtain a final decision about the use that particular permitted parcel. parties, will be on The the relevance of the course, contest TDR’s to the issue of legal but occurred, whether a resolution agency require further sort de- issue will no action of the by County. manded Williamson
B argued agency below, the lower The nonetheless supra, agreed, 732-733, remains a courts see that there possible agency on a for the to make: action “final decision” to which she is application Suitum transfer the TDR’s to type indisputably is not, however, entitled. This County prece- required our “final decision” Williamson impossibility precedents virtual dents. Those addressed the determining par- permitted on a what will be subject of a when its use is to the decision ticular lot of land body great regulatory discretion, with which it has invested question yet is to such even been asked exercise. No presented parties agree particular TDR’s here. The discretionary decision entitled, is no which Suitum by any agency
must be made officialfor her to obtain them or only agency them for The offer sale. decision left to the is particular approval aof transfer of TDR’s to make certain buyer given potential may lawfully that a use them. But particular may completed quite whether a sale of TDR’s be long par- from whether TDR’sare salable; different so as the only buy, buyer person lawfully is not the who can ticular rights would not be rendered unsalable even if the discretionary partic- were to make decision to kill a buyers arguably ular And the class of is not even so sale. question as the here, where there is no so far law is limited bought and used for the benefit TDR’s concerned parcels of land and lots. of all sorts
C ripe be- agency’s argument case is not that Suitum’s TDR’s] [Suitum’s are “Values attributable no cause (quoting Respondent No. CV-N-91- known,’” Brief for (D. 30,1994), App. C-4, Cert. to Pet. for Nev., Mar. 040-ECR preceding position, and fares no *14 just a on the variation is rights to receive TDR’s to Suitum's First, as better. already that little or no may noted we have sell, later she Although uncertainty value of Residential the remains. greater to- Right if it is offered Development be well although Allocation, Suitum gether with a Residential lottery no discre- latter, there is for the the still enter must tionary determining whether she will in to be made decision getting probability one is “100 her fact, get one; Arg. 40, agency, see Tr. Oral according to the percent” allocations, applications than available are fewer since there case, as it were not But even if that at 39-40. id., see re- to always be unreasonable it would probably be, will not ripen suit. her drawing in order to quire to enter Suitum surely not, maintain not, could agency does lottery low, were allocation the odds success if kept bay Suitum’s claim year could be from to year actually drawing; until she won the such a rule would any authority stultify allow local to the Fifth Amendment’s guarantee. Rather, in such circumstances, value attrib- might might utable to the allocation Suitum or not receive in drawing simply would be discounted to reflect the mathe- obtaining matical likelihood of her one. right as to
Second, TDR’s, to Suitum’s transfer her only contingency apart private from market demand turns right deny approval specific on the to for a grounds buyer’s transfer that the use of the TDR’s would reg- violate the terms of the or scheme other local land-use right regulatory body deny ulation, and the of a local to approval transfer for the latter reason. See TRPA Code §§ potential 20.3.C, 34.2, 34.3. But even if these bars based buyer’s on a intended use TDR’s should turn out involve degree the same of discretion assumed in the Williamson County ripeness requirement, still that discretion would not nearly the value render of the TDR’s as unknowable as the particular being par- permitted on chances of parcel zoning of a decision that ticular absence board quite lawfully yes particular could be either or no. While a subject salability agency’s approval, not, is and the sale many potential, position assumes that there are lawful own rights buyers receipt TDR’s, for Suitum’s whose of those unquestionably approved. would be simply an
The valuation of Suitum’s TDR’s is therefore possible prices, on which about market and one issue fact it, evidence before see the District Court had considerable agency appears supra, course, at 731-732.13 Of g., very saying, Respondent 22-23, Brief best see, e. *15 might be their actual evidence of the value of Suitum’sTDR’s 13Moreover, course, on this briefing the court additional may, request if if be decided subject necessary, and trial could be held the issue cannot summary judgment. price
selling (assuming, course, that the sale were made good length). in faith and at arm’s But similar determina- routinely judicial proceed- tions of market value are made in ings without the benefit of a market transaction in the sub- ject property. g., See, e. United States v. 819.98 Acres of
Land, Less, More or Located in Wasatch and Summit Coun- (CA10 1996)(upholding ties, 78 F. 3d 1469-1470 valua- testimony expert relating tion of condemned land based on flow); comparable sales and discounted cash United States (CA6 1993)(same Co., L. E. Cooke 991 F. 2d 338-339 v. leases); respect rights of mineral see also with to valuation §23-01, Sackman, Nichols’ Law of Eminent Domain 5 J. (rev. 1997) (“[I]t is well established that p. 3d ed. 23-6 the, by injured exercise of the . . land taken or value . by may opinion evi- power be shown of eminent domain § dence”); (discussing generally id.,4 12.02 establishment see land). it is true While value of condemned of market regular without a hard to calculate value market proceed spite ready of this TDR’s,if Suitum is trade fact, In block her. difficulty,ripeness does not doctrine probably objection a concern agency’s is reason for the their experience TDR’s, in sales market much without simply one get But this is low estimates. values will market pioneer here is regulatory pioneering, and the risks of agency, not Suitum. III (for this argues time, before Finally, the first Court) unripe under claim that Suitum’s “fitness Gardner, 387 v. Laboratories requirement of Abbott review” (1967). petition arose on a Abbott Laboratories U. S. (APA), 5 U. S. C. Act Procedure the Administrative under (1964 II), drug group manufac- Supp. §§701-704 ed., regulation promulgated labeling seeking review of turers (FDA) yet Drugs but not of Food the Commissioner against the manufac- any action subject of enforcement statu- the FDA lacked petitioners claimed turers. *16 tory authority impose labeling the requirement; new the FDA countered that ripe judicial the claim was not for re- any proceedings view for want of regulation. to enforce the ripeness The Court dealt with two-pronged under a test: undertaking survey “Without the intricacies the ripeness say it doctrine is fair to that its basic rationale prevent through is to the premature courts, avoidance of adjudication, entangling from themselves abstract disagreements policies, over administrative and also to protect agencies judicial from interference until an administrative decision has been formalized way by challenging its effects felt in a concrete parties. problem aspect, is best seen a twofold requiring us to evaluate both the of the fitness issues judicial hardship parties decision and the to the withholding court S., consideration.” 387 U. at 148-149 (footnote omitted). prong,
Under the “fitness for review” we first noted that the labeling adoption regulation FDA’s of the “final was § meaning APA, action” within the 5 U. S. C. rejected argument §704, and then re Government’s must await S., view enforcement. 387 U. at 149-152. We peti impact regulations upon reasoned that “the of the sufficiently tioners direct and immediate as to render judicial stage” appropriate issue review at this because promulgation regulations “puts petitioners in a di they comply [labeling] re lemma”: “Either must with the changing promo quirement and incur the costs of over their labeling present tional material or followtheir must (internal prosecution.” quotation Id., course and risk at 152 omitted). Similarly, impact reg marks immediate “hardship” prong: ulation on the manufacturers satisfied the legal presented judicial “Where resolution, issue is fit for regulation significant requires and where a an immediate and change plaintiffs’ conduct of their affairs with serious *17 hardship noncompliance,”
penalties to has been attached permitted.” and to the courts . . . must be demonstrated “access ., at 153. Id point. drug companies is not on The
Abbott Laboratories validity challenging regulation the of a in that case were authority. beyond scope as FDA’s Whatever may position ripeness arguable FDA’s have merit of the manufacturers have it rested on the fact that the could been, wanted) (if violating challenge had precipitated their any subsequent prosecution defending regulation and validity question. regulation’s in Suitum is in placing the does not position the manufacturers. She from a different litigat- validity agency’sregulations; challenge her agency validly her bar ing position assumes that actually just agree done, it has and as all land question only challenge about their TDR’sraises a to the her issuing them. Suitum value, about the lawfulness not paid regulations but to be free of the not to be seeks she had consequences, if some odd reason and even for their by building per- bring things without a a head to to decided money §1983 to not be defense action for would mit, a enjoin development. to the equity proceeding Indeed, to any instructive in sense Abbott Laboratories is extent that directly disposition us, before it cuts of the case definitively just from agency: is barred against Suitum drug step develop any her land as affirmative change steps companies to take affirmative were bound step only discretionary left to an their labels. determining applicability. enforcement, is either situation [*] [*] [*] a “final decision” has received we find that Suitum Because County’s ripeness requirement, with Williamson consistent Appeals and remand judgment of the Court we vacate the opinion. proceedings with this consistent for further
It so ordered. Justice Scalia, with whom Justice O’Connor and Justice Thomas join, concurring part concurring in the judgment.
I judgment join concur in the opinion the Court, and its except for Parts II-B and II-C. Those sections consider (TRPA) whether Regional Planning Agency Tahoe must have regarding ability reached a final decision Suitum’s sell Development (TDRs), her Rights Transferable whether the value of Suitum’s TDRs must be known. That *18 presumes questions may discussion that the answers to those presented preliminary stage be relevant to the issue at this present ripe of the case: whether Suitum’s claim is judicial requirement. for review under the “final decision” my In view are not relevant to the issue, and point. Court’s discussion is beside the inquiry,
To describe the nature of the “final the decision” vague opinion quotes only language Court’s the of William- County Regional Planning son v. Bank Common Hamilton (1985), City, Johnson 473 172 be U. S. that there must of “final decision [challenged] regarding application the of the quoted regulations id., ante, issue,” the at at 186, County, MacDonald, and Frates v. Yolo at Sommer & (1986), “[a] 477 340 court cannot determine U. S. regulation gone far’ unless it knows how whether a has ‘too regulation quoted goes,” id., ante, at at 734. far opinion specific, other, are more state- Unmentioned elsewhere) (and display very in which ments those cases (and quite clearly quoted generalizations the “final that the nothing inquiry) in to do with TDRs. Later decision” have County, example, explained pur- that the Williamson we pose requirement to ensure that the “final decision” was takings plaintiff] [the will the Court can ascertain “how develop property,” County, supra, allowed its Williamson very page at 190. And on the same from which Court vague says quite pre- extracted the statement, MacDonald cisely that the essential function the “final decision” re-
quirement has a “determination is to ensure that there been legally permitted intensity development type and of the subject supra, MacDonald, property,” 348; on uniformly “[o]ur says later that cases reflect insistence permitted development knowing nature and extent of constitutionality adjudicating regulations of the before purport at 351. The Court fails it,” S., to limit 477 U. encyclopedicdescription of mention, in its otherwise even requirement, the most of the “finaldecision” subject, opinions addressing v. Lucas South recent of our (1992), Council, which we Coastal U. S. Carolina exclusively precise more formulations did on these relied by- today, vague language quoted the Court mention the not id., at 1011. see ascertaining inquiry is on of the “final decision”
The focus governmental use, on land restriction the extent exchange given government landowner what say, ex- as the Court our cases that restriction. When impos- it a “final decision” is plains ante, 734,that without “goes regulation far,” too Penn- whether the sible to know *19 (1922),they 415 sylvania Mahon, 260 U. S. Co. v. Coal profitable restricting “goes the use too far in mean enough providing compensation “goes far land,” not not restricting The profitable the land.” latter the use of for taking, the a but to pertains there has been not to whether just question whether, so, there has been subsequent of if compensation. the Court’s in Part II-A of of the cases discussed
In all
bearing
question
a “final decision”
whether
opinion
on the
point
made, the
at issue
had been
requisite to a
claim
per
finally
the
government
determined
had
was whether the
Agins City
Tiburon, land.
In
v.
use of the
missible
of
(1980),
government
735-736, the
ante,
discussed
U. S.
challenged
many
yet
houses
determined how
had not
plaintiff’s property.
permit
zoning
on the
would
ordinance
Mining
Virginia
Assn.,
Reclamation
&
In Hodel v.
Surface
(1981),
Inc.,
TDRs, course, have to do with the use or devel- decree) opment (by regulatory of the land to which are right develop “attached.” to use and one’s own land quite right upon distinct from the to confer someone else power develop increased to use and his land. The latter is right upon valuable, sure, to be but it is a new conferred exchange taking, landowner in rather than a reduc- taking. permits essence, tion of the In the TDR the land- right develop owner whose to use and his has been extinguished money restricted or to extract from others. payment government Just as cash from the would not re- (i. regulation “goes late to whether the e., too far” restricts severely taking), use the land so as to constitute a but adequate compensation rather to whether there has been taking; just coupon government, or as chit from parties, redeemable and hence marketable to third would question taking question not to relate but to the compensation; peculiar type TDR, so also the marketable party get of chit which third enables a not to cash from the government government ways but to use his land in permit, would otherwise not relates not to but to com- *20 pensation. bearing upon It has no whether there has been concerning plain- a “final decision” the to extent which the land tiff’s use been constrained.
Putting
taking
just-
the
TDRs on
rather
than the
(as
compensation
equation
the
side of
the Ninth Circuit did
below)
transparent,
clever,
is a
to
albeit
device that seeks
Takings-Clause juris
advantage
peculiarity
take
of a
of our
taking,
prudence:
there is
the Constitution
Whereas once
a
(i.
full)
just
compensation,
g.,
requires
e.,
e.
States
see,
United
County Land,
Acres Monroe and Pike
(1979)
441 U.
v.
S.
564.54
(owner
put
good position
“'in as
a
must
”);
property
pecuniarily
Monon
if his
had not been taken’
as
(1893)
gahela
States,
148 U. S.
Nav. Co. v. United
(“[T]he
perfect equivalent
compensation
a full and
must be
taken”),
regulatory taking generally
does
for the
(albeit
long the
not its
not occur so
full)
land retains substantial
g.,
Transp.
see,
Co. v. New York
value,
e. Penn Central
(1978).
City,
money
government-
If
that the
In I would resolve looking only to the in this case been a “final decision” develop rights fixing petitioner’s her land. to use and any dispute whether that has oc- never over There has been petitioner applied present bringing suit, Before curred. lot, permission her and was denied a house on build for permission TRPA’s determination on the basis of to do so Environment within a “Stream is located that her consequence “[n]o designation that carries Zone”—a coverage permanent land disturb- or other land additional § Respondent permitted,” 20.4. TRPA Code ance shall be regula- “[w]e full extent of the know the fact concedes that restricting of her impact petitioner’s tion’s Respondent is all need to 21. That we land,” Brief own requirement has the “final decision” know to conclude met. been