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SUITUM v. TAHOE REGIONAL PLANNING AGENCY
No. 96-243.
Argued February 26, 1997
Decided May 27, 1997
R. S. Radford argued the cause for petitioner. With him on the briefs were Robin L. Rivett, Victor J. Wolski, and William Patterson Cashill.
Richard J. Lazarus argued the cause for respondent. With him on the brief were J. Peter Byrne, J. Thomas Susich, Vicki E. Hartigan, Rachelle J. Nicolle, and Susan E. Scholley.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Dellin-ger, Assistant Attorney General Schiffer, Anne S. Almy, and John A. Bryson.
Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Timothy S. Bishop, Michael F. Rosen-blum, John J. Rademacher, and Richard L. Krause; for the Building Industry Association of Washington by Richard M. Stephens and John M. Groen; for the Defenders of Property Rights et al. by Rancie G. Marzulla; for the Institute of Justice by William H. Mellor, Clint Bolick, Scott G. Bullock, and Richard A. Epstein; for the Southeastern Legal Foundation by Henry D. Granberry III; for the Tahoe Lakefront Owners’ Association by Ronald A. Zumbrun, John H. Findley, and Meriem L. Hubbard; for the Tahoe-Sierra Preservation Council, Inc., by Lawrence L. Hoffman; and for the Mayhews et al. by Charles L. Siemon.
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 Howie, 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. Kay den, 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. Echeverría.
Justice Souter
delivered the opinion of the Court.
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, even though Suitum has not attempted to sell the development rights she has or is eligible to receive. We hold that it is.
I
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. 1(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.
Although the agency’s 1987 plan does not provide for the variances and exceptions of conventional land-use schemes, it addresses the potential sharpness of its restrictions by granting property owners TDR’s that may be sold to owners of parcels eligible for construction, id., §§20.3.C, 34.0 to 34.3. There are three kinds of residential TDR’s. An owner needs both a “Residential Development Right” and a “Residential Allocation” to place a residential unit on a buildable parcel, id., §§21.6.C, 33.2.A; the latter permits construction to begin in a specific calendar year, but expires at year’s end, id., § 33.2.B(3)(b). An owner must also have “Land Coverage Rights” for each square foot of impermeable cover placed upon land. App. 145; see also TRPA Code, ch. 20. All owners of vacant residential parcels that existed at the effective date of the 1987 plan (July 1, 1987), including SEZ parcels, automatically receive one Residential Development Right, id., § 21.6.A; owners of SEZ property may obtain and transfer bonus points equivalent to three additional Residential Development Rights, id., §§35.2.C, 35.2.D. SEZ property owners also receive Land Coverage Rights authorizing coverage of an area equal to 1% of the surface area of their land. Id., §§20.3.A, 37.11. Finally, SEZ owners, like other property owners, may apply for a Residential Allocation, awarded by local jurisdictions in random drawings each year. Id., §33.2.B; App. 98-99. All three kinds of TDR’s may be transferred for the benefit of any eligible property in the Lake Tahoe region, subject to approval by the agency based on the eligibility of the receiving parcel for development. TRPA Code §§20.3.C, 34.1 to 34.3.
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 Regional Plan, Suitum obtained a Residential Allocation through Washoe County’s annual drawing. When she then applied to the agency for permission to construct a house on her lot, the agency determined that her property was located within a SEZ, assigned it an IPES score of zero, and denied permission to build. Suitum appealed the denial to the agency’s governing board, which itself denied relief.
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. App. 15, 16. The agency responded by objecting, among other things, that Suitum’s takings claim was not ripe due to her “failure to obtain a final decision by TRPA as to the amount of development . . . that may be allowed by” the agency. Id., at 10. On cross-motions for summary judgment, the District Court ordered supplemental briefing on the nature of Suitum’s TDR’s, including “what [TDR’s] can be transferred in [Suitum’s] case and the procedures, prerequisites and value of such transfer as applicable in this case.” Id., at 89. The agency introduced an affidavit from a real estate appraiser, whose opinion was that the Residential Development Right that Suitum already has, and the three more to which she is entitled, have a market value between $1,500 and $2,500 each; that her Land Coverage Rights can be sold for $6 to $12 per square foot ($1,098~$2,196 total); and that her lot devoid of all TDR's would sell for $7,125 to $16,750. Id., at 181-132. The appraiser also said that if Suitum were to obtain a Residential Allocation and sell it with a Development Right, together they would bring between $30,000 and $35,000. Ibid. As if in spite of the figures supplied.by its own affidavit, however, the agency maintained that the “actual benefits of the [TDR] program for [Suitum]... can only be known if she pursues an appropriate [transfer] application,” with the result that Suitum’s claim was not ripe for adjudication. Id., at 91. For her part, Suitum insisted that trying to transfer her TDR’s would be an “ ‘idle and futile act’ ” because the TDR program is a “sham,” and she supplied the affidavit of one of the agency’s former employees whose view was that “there is little to no value to [Suitum’s TDR’s] at the present time as . . . either [there is] no market for them or the procedure for transferring one particular right would restrict the opportunity to transfer a remaining right.” Id., at 135.
The District Court decided that Suitum’s claim was not ripe for consideration because “[a]s things now stand, there is no final decision as to how [Suitum] will be allowed to use her property.” No. CV-N-91-040-ECR (D. Nev., Mar. 30, 1994), App. to Pet. for Cert. C-3. Although the court found that “there is significant value in the transfer of [Suitum’s TDR’s], . . . until [specific] values attributable to the transfer program are known, the court cannot realistically assess whether and to what extent [the agency’s] regulations have frustrated [Suitum’s] reasonable expectations.” Id., at C-3 to C-4.
The Court of Appeals for the Ninth Circuit affirmed this ripeness ruling for the like reason that “[without 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^] to the property at issue.’” 80 F. 3d 359, 362-363 (1996). We granted certiorari to consider the ripeness of Suitum’s takings claim, 519 U. S. 926 (1996), and now reverse.
II
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. There are two independent prudential hurdles to a regulatory takings claim brought against a state entity in federal court. Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), explained that a plaintiff must demonstrate that she has both received a “final decision regarding the application of the [challenged] regulations to the property at issue” from “the government entity charged with implementing the regulations,” id., at 186, and sought “compensation through the procedures the State has provided for doing so,” id., at 194. The first requirement follows from the principle that only a regulation that “goes too far,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), results in a taking under the Fifth Amendment, see, e. g., MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 348 (1986) (“A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes”); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014-1019 (1992) (regulation “ ‘goes too far’ ” and results in a taking “at leas[t] in the extraordinary circumstance when no productive or economically beneficial use of land is permitted”). The second hurdle stems from the Fifth Amendment’s proviso that only takings without “just compensation” infringe that Amendment; “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation,” Williamson County, supra, at 195. Because only the “final decision” prong of Williamson was addressed below and briefed before this Court, we confine our discussion here to that issue.
A
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. In Agins, the landowners who challenged zoning ordinances restricting the number of houses they could build on their property sued without seeking approval for any particular development on their land. We held that the only issue justiciable at that point was whether mere enactment of the statute amounted to a taking. Id., at 260. Without employing the term “ripeness,” the Court explained that because the owners “ha[d] not submitted a plan for development of their property as the [challenged] ordinances permitted], there [was] as yet no concrete controversy regarding the application of the specific zoning provisions.” Ibid.
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. Hodel thus held that where the regulatory regime offers the possibility of a variance from its facial requirements, a landowner must go beyond submitting a plan for development and actually seek such a variance to ripen his claim.
Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), confirmed HodeVs 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 “[respondent 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 under the regulations in question, flatly contrary to the developer’s conclusory allegation that the regulations required him to provide a greenbelt as a public gratuity. See 477 U. S., at 345-347. Hence, we held the claim unripe under the rationale of Williamson County: “‘the effect [of] the Commission’s application of the zoning ordinance ... on the value of respondent’s property ... cannot be measured until a final decision is made as to how the regulations will be applied to [the developer’s] property.’” MacDonald, supra, at 349 (quoting Williamson County, supra, at 199-200).
Leaving aside the question of how definitive a local zoning decision must be to satisfy Williamson County’s demand for finality, two points about the requirement are clear: it applies to decisions about how a takings plaintiff’s own land may be used, and it responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer. As the Court said in MacDonald, “local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with the one hand they may give back with the other.” 477 U. S., at 350. When such flexibility or discretion may be brought to bear on the permissible use of property as singular as a parcel of land, a sound judgment about what use will be allowed simply cannot be made by asking whether a parcel’s characteristics or a proposal’s details facially conform to the terms of the general use regulations.
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,

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Answer: