Petitioner Bernadine Suitum owns land near the Nevada shore of Lake Tahoe. Respondent Tahoe Regional Planning Agency, which regulates land use in the region, determined that Suitum's property is ineligible for development but entitled to receive certain allegedly valuable "Transferable Development Rights" (TDR's). Suitum has brought an action for compensation under Rev. Stat. § 1979, 42 U. S. C. § 1983, claiming that the agency's determinations amounted to a regulatory taking of her property. While the pleadings raise issues about the significance of the TDR's both to the claim that a taking has occurred and to the constitutional requirement of just compensation, we have no occasion to decide, and we do not decide, whether or not these TDR's may be considered in deciding the issue whether there has been a taking in this case, as opposed to the issue whether just compensation has been afforded for such a taking. The sole question here is whether the claim is ripe for adjudication,
In 1969, Congress approved the Tahoe Regional Planning Compact between the States of California and Nevada, creating respondent as an interstate agency to regulate development in the Lake Tahoe basin. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 394 (1979). After the 1969 compact had proven inadequate for protection of the lake and its environment, the States proposed and Congress approved an amendment in 1980, requiring the agency to adopt a plan barring any development exceeding such specific "environmental threshold carrying capacities" as the agency might find appropriate. Pub. L. 96-551, Arts. I(b), V(b), V(g), 94 Stat. 3234, 3239-3241.
In 1987, the agency adopted a new Regional Plan providing for an "Individual Parcel Evaluation System" (IPES) to rate the suitability of vacant residential parcels for building and other modification. Tahoe Regional Planning Agency Code of Ordinances, ch. 37 (TRPA Code). Whereas any property must attain a minimum IPES score to qualify for construction, id., § 37.8.E; App. 145, an undeveloped parcel in certain areas carrying runoff into the watershed (known as "Stream Environment Zones" (SEZ's)) receives an IPES score of zero, TRPA Code § 37.4.A(3). With limited exceptions not relevant here, the agency permits no "additional land coverage or other permanent land disturbance" on such a parcel. Id., § 20.4.
In 1972, Suitum and her late husband bought an undeveloped lot in Washoe County, Nevada, within the agency's jurisdiction, and 17 years later, after adoption of the 1987
After the agency turned down the request for a building permit, Suitum made no effort to transfer any of the TDR's that were hers under the 1987 plan, and there is no dispute that she still has the one Residential Development Right that owners of undeveloped lots automatically received, plus the Land Coverage Rights for 183 square feet that she got as the owner of 18,300 square feet of SEZ land. It is also common ground that Suitum has the right to receive three "bonus" Residential Development Rights. Although Suitum has questioned the certainty that she would obtain a new Residential Allocation if she sought one, the agency has represented to this Court that she undoubtably would, see n. 2, supra.
Instead, Suitum brought this 42 U. S. C. § 1983 action alleging that in denying her the right to construct a house on her lot, the agency's restrictions deprived her of "all reasonable and economically viable use" of her property, and so amounted to a taking of her property without just compensation in violation of the Fifth and Fourteenth Amendments.
The District Court decided that Suitum's claim was not ripe for consideration because "[a]s things now stand, there
The Court of Appeals for the Ninth Circuit affirmed this ripeness ruling for the like reason that "[w]ithout an application for the transfer of development rights" there would be no way to "know the regulations' full economic impact or the degree of their interference with [Suitum's] reasonable investment-backed expectations," and without action on a transfer application there would be no "`final decision from [the agency] regarding the application of the regulation[s] to the property at issue.' "
The only issue presented is whether Suitum's claim of a regulatory taking of her land in violation of the Fifth and Fourteenth Amendments is ready for judicial review under prudential ripeness principles.
In holding Suitum's claim to be unripe, the Ninth Circuit agreed with the agency's argument that Suitum had failed to obtain a final and authoritative decision from the agency sufficient to satisfy the first prong of Williamson County, supra. Although it is unclear whether the agency still urges precisely that position before this Court, see, e. g., Brief for Respondent 21 (conceding that "[w]e know the full extent of the regulation's impact in restricting petitioner's development of her own land"), we think it important to emphasize that the rationale adopted in the decision under review is unsupported by our precedents.
Agins v. City of Tiburon, 447 U.S. 255 (1980), is the first case in which this Court employed a notion of ripeness in declining to reach the merits of an as-applied regulatory takings claim.
The following Term, Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), toughened our nascent ripeness requirement. There, coal producers and landowners challenged the enactment of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. § 1201 et seq., as a taking of their property. As in Agins, we concluded that an as-applied challenge was unripe, reasoning that "[t]here is no indication in the record that appellees ha[d] availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting . . . a variance from the [applicable provisions of the Act]," 452 U. S., at 297.
Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), confirmed Hodel `s holding. In Williamson County, a developer's plan to build a residential complex was rejected by the local planning commission as inconsistent with zoning ordinances and subdivision regulations in eight different respects. This Court acknowledged that "[r]espondent ha[d] submitted a plan for developing its property, and thus ha[d] passed beyond the Agins threshold," 473 U. S., at 187, but nonetheless held the takings challenge unripe, reasoning that "among the factors of particular significance in the [takings] inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations," id., at 191, "factors [that] simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question," ibid. Thus, a developer must at least "resort to the procedure for obtaining variances . . . [and obtain] a conclusive determination by the Commission whether it would allow" the proposed development, id., at 193, in order to ripen its takings claim.
MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986), reaffirmed Williamson County `s requirement of a final agency position. In MacDonald, a developer purchased property and presented a tentative subdivision plan to the local planning commission. After the commission treated the proposal as inconsistent with the zoning regulations in several respects, the developer immediately filed suit. Without even relying on the character of the dry run in the submission of a merely tentative plan, we emphasized that in the course of litigation two state courts had given opinions that development of the property was possible
Leaving aside the question of how definitive a local zoning decision must be to satisfy Williamson County `s demand for finality,
The demand for finality is satisfied by Suitum's claim, however, there being no question here about how the "regulations at issue [apply] to the particular land in question." Williamson County, supra, at 191. It is undisputed that the agency "has finally determined that petitioner's land lies entirely within an SEZ," Brief for Respondent 21, and that it may therefore permit "[n]o additional land coverage or other permanent land disturbance" on the parcel, TRPA Code § 20.4. Because the agency has no discretion to exercise over Suitum's right to use her land, no occasion exists for applying Williamson County `s requirement that a landowner take steps to obtain a final decision about the use that will be permitted on a particular parcel. The parties, of course, contest the relevance of the TDR's to the issue of whether a taking has occurred, but resolution of that legal issue will require no further agency action of the sort demanded by Williamson County.
The agency nonetheless argued below, and the lower courts agreed, see supra, at 732-733, that there remains a "final decision" for the agency to make: action on a possible application by Suitum to transfer the TDR's to which she is indisputably entitled. This is not, however, the type of "final decision" required by our Williamson County precedents. Those precedents addressed the virtual impossibility of determining what development will be permitted on a particular lot of land when its use is subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise. No such question is presented here. The parties agree on the particular TDR's to which Suitum is entitled, and no discretionary decision
The agency's argument that Suitum's case is not ripe because no "`values attributable to [Suitum's TDR's] are known,' " Brief for Respondent 23 (quoting No. CV—N-91— 040—ECR (D. Nev., Mar. 30, 1994), App. to Pet. for Cert. C-4, is just a variation on the preceding position, and fares no better. First, as to Suitum's rights to receive TDR's that she may later sell, we have already noted that little or no uncertainty remains. Although the value of a Residential Development Right may well be greater if it is offered together with a Residential Allocation, and although Suitum must still enter the lottery for the latter, there is no discretionary decision to be made in determining whether she will get one; in fact, the probability of her getting one is "100 percent" according to the agency, see Tr. of Oral Arg. 40, since there are fewer applications than available allocations, see id., at 39-40. But even if that were not the case, as it probably will not always be, it would be unreasonable to require Suitum to enter the drawing in order to ripen her suit. The agency does not, and surely could not, maintain that if the odds of success in the allocation lottery were low,
Second, as to Suitum's right to transfer her TDR's, the only contingency apart from private market demand turns on the right of the agency to deny approval for a specific transfer on grounds that the buyer's use of the TDR's would violate the terms of the scheme or other local land-use regulation, and the right of a local regulatory body to deny transfer approval for the latter reason. See TRPA Code §§ 20.3.C, 34.2, 34.3. But even if these potential bars based on a buyer's intended use of TDR's should turn out to involve the same degree of discretion assumed in the Williamson County ripeness requirement, that discretion still would not render the value of the TDR's nearly as unknowable as the chances of particular development being permitted on a particular parcel in the absence of a zoning board decision that could quite lawfully be either yes or no. While a particular sale is subject to approval, salability is not, and the agency's own position assumes that there are many potential, lawful buyers for Suitum's TDR's, whose receipt of those rights would unquestionably be approved.
The valuation of Suitum's TDR's is therefore simply an issue of fact about possible market prices, and one on which the District Court had considerable evidence before it, see supra, at 731-732.
Finally, the agency argues (for the first time, before this Court) that Suitum's claim is unripe under the "fitness for review" requirement of Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). Abbott Laboratories arose on a petition under the Administrative Procedure Act (APA), 5 U. S. C. §§ 701-704 (1964 ed., Supp. II), by a group of drug manufacturers seeking review of a labeling regulation promulgated by the Commissioner of Food and Drugs (FDA) but not yet the subject of any enforcement action against the manufacturers. The petitioners claimed that the FDA lacked statutory
Under the "fitness for review" prong, we first noted that the FDA's adoption of the labeling regulation was "final agency action" within the meaning of § 10 of the APA, 5 U. S. C. § 704, and then rejected the Government's argument that review must await enforcement. 387 U. S., at 149-152. We reasoned that "the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage" because promulgation of the regulations "puts petitioners in a dilemma": "Either they must comply with the [labeling] requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution." Id., at 152 (internal quotation marks omitted). Similarly, the immediate impact of the regulation on the manufacturers satisfied the "hardship" prong: "Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious
Abbott Laboratories is not on point. The drug companies in that case were challenging the validity of a regulation as beyond the scope of the FDA's authority. Whatever the arguable merit of the FDA's position on ripeness may have been, it rested on the fact that the manufacturers could have precipitated their challenge (if they had wanted) by violating the regulation and defending any subsequent prosecution by placing the regulation's validity in question. Suitum is in a different position from the manufacturers. She does not challenge the validity of the agency's regulations; her litigating position assumes that the agency may validly bar her land development just as all agree it has actually done, and her only challenge to the TDR's raises a question about their value, not about the lawfulness of issuing them. Suitum seeks not to be free of the regulations but to be paid for their consequences, and even if for some odd reason she had decided to bring things to a head by building without a permit, a § 1983 action for money would not be a defense to an equity proceeding to enjoin development. Indeed, to the extent that Abbott Laboratories is in any sense instructive in the disposition of the case before us, it cuts directly against the agency: Suitum is just as definitively barred from taking any affirmative step to develop her land as the drug companies were bound to take affirmative steps to change their labels. The only discretionary step left to an agency in either situation is enforcement, not determining applicability.
* * *
Because we find that Suitum has received a "final decision" consistent with Williamson County `s ripeness requirement, we vacate the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
It is so ordered.
I concur in the judgment of the Court, and join its opinion except for Parts II—B and II—C. Those sections consider whether the Tahoe Regional Planning Agency (TRPA) must have reached a final decision regarding Suitum's ability to sell her Transferable Development Rights (TDRs), and whether the value of Suitum's TDRs must be known. That discussion presumes that the answers to those questions may be relevant to the issue presented at this preliminary stage of the present case: whether Suitum's takings claim is ripe for judicial review under the "final decision" requirement. In my view they are not relevant to that issue, and the Court's discussion is beside the point.
To describe the nature of the "final decision" inquiry, the Court's opinion quotes only the vague language of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), that there must be a "final decision regarding the application of the [challenged] regulations to the property at issue," id., at 186, quoted ante, at 734, and of MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986), that "[a] court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes," id., at 348, quoted ante, at 734. Unmentioned in the opinion are other, more specific, statements in those very cases (and elsewhere) which display quite clearly that the quoted generalizations (and the "final decision" inquiry) have nothing to do with TDRs. Later in Williamson County, for example, we explained that the purpose of the "final decision" requirement was to ensure that the Court can ascertain "how [the takings plaintiff] will be allowed to develop its property," Williamson County, supra, at 190. And on the very same page from which the Court extracted the vague statement, MacDonald says quite precisely that the essential function of the "final decision" requirement
The focus of the "final decision" inquiry is on ascertaining the extent of the governmental restriction on land use, not what the government has given the landowner in exchange for that restriction. When our cases say, as the Court explains ante, at 734, that without a "final decision" it is impossible to know whether the regulation "goes too far," Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), they mean "goes too far in restricting the profitable use of the land," not "goes not far enough in providing compensation for restricting the profitable use of the land." The latter pertains not to whether there has been a taking, but to the subsequent question of whether, if so, there has been just compensation.
In all of the cases discussed in Part II—A of the Court's opinion bearing on the question whether a "final decision" requisite to a takings claim had been made, the point at issue was whether the government had finally determined the permissible use of the land. In Agins v. City of Tiburon, 447 U.S. 255 (1980), discussed ante, at 735-736, the government had not yet determined how many houses the challenged zoning ordinance would permit on the plaintiff's property. In Hodel v. Virginia Surface Mining & Reclamation Assn.,
TDRs, of course, have nothing to do with the use or development of the land to which they are (by regulatory decree) "attached." The right to use and develop one's own land is quite distinct from the right to confer upon someone else an increased power to use and develop his land. The latter is valuable, to be sure, but it is a new right conferred upon the landowner in exchange for the taking, rather than a reduction of the taking. In essence, the TDR permits the landowner whose right to use and develop his property has been restricted or extinguished to extract money from others. Just as a cash payment from the government would not relate to whether the regulation "goes too far" (i. e., restricts use of the land so severely as to constitute a taking), but rather to whether there has been adequate compensation for the taking; and just as a chit or coupon from the government, redeemable by and hence marketable to third parties, would relate not to the question of taking but to the question of compensation; so also the marketable TDR, a peculiar type of chit which enables a third party not to get cash from the government but to use his land in ways the government would otherwise not permit, relates not to taking but to compensation. It has no bearing upon whether there has been a "final decision" concerning the extent to which the plaintiff's land use has been constrained.
Putting TDRs on the taking rather than the justcompensation side of the equation (as the Ninth Circuit did
Respondent maintains that Penn Central supports the conclusion that TDRs are relevant to the question whether there has been a taking. In Penn Central we remarked that because the rights to develop the airspace above Grand Central
I do not mean to suggest that there is anything undesirable or devious about TDRs themselves. To the contrary, TDRs can serve a commendable purpose in mitigating the economic loss suffered by an individual whose property use is restricted, and property value diminished, but not so substantially
In sum, I would resolve the question of whether there has been a "final decision" in this case by looking only to the fixing of petitioner's rights to use and develop her land. There has never been any dispute over whether that has occurred. Before bringing the present suit, petitioner applied for permission to build a house on her lot, and was denied permission to do so on the basis of TRPA's determination that her property is located within a "Stream Environment Zone"—a designation that carries the consequence that "[n]o additional land coverage or other permanent land disturbance shall be permitted," TRPA Code § 20.4. Respondent in fact concedes that "[w]e know the full extent of the regulation's impact in restricting petitioner's development of her own land," Brief for Respondent 21. That is all we need to know to conclude that the "final decision" requirement has been met.
Briefs of amici curiae urging affirmance were filed for the Governor of California et al. by Michael A. Mantell; for the State of Nevada et al. by Frankie Sue Del Papa, Attorney General of Nevada, and William J. Frey and C. Wayne Howle, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Margery S. Bronster of Hawaii, Jeffrey L. Amestoy of Vermont, J. Joseph Curran, Jr., of Maryland, and Joseph P. Mazurek of Montana; for the State of New Jersey by Peter Verniero, Attorney General, Mary C. Jacobson, Assistant Attorney General, and Rachel J. Horowitz, Deputy Attorney General; for the State of New York by Dennis C. Vacco, Attorney General, Barbara G. Billett, Solicitor General, Peter H. Schiff, Deputy Solicitor General, and John J. Sipos and Lisa M. Burianek, Assistant Attorneys General; for the City of New York by Paul A. Crotty, Leonard J. Koerner, Stephen J. McGrath, and Cheryl Payer; for the League to Save Lake Tahoe by E. Clement Shute, Jr., and Christy H. Taylor; for the National League of Cities et al. by Richard Ruda; and for the National Trust for Historic Preservation in the United States et al. by Jerold S. Kayden, Louise H. Renne, R. Jeffrey Lyman, and Elizabeth S. Merritt.
Briefs of amici curiae were filed for the American Planning Association by Brian W. Blaesser and H. Bissell Carey III; for the Columbia River Gorge Commission by Lawrence Watters; for the National Association of Home Builders et al. by John J. Delaney, Lawrence R. Liebesman, Mary V. DiCrescenzo, and Nick Cammarota; and for Dr. James Nicholas et al. by John D. Echeverria.