Suitum v. Tahoe Regional Planning Agency

No. 96-243. Argued February 26, 1997. Decided May 27, 1997. Certiorari to the United States Court of Appeals for the Ninth Circuit. Judgment vacated and case remanded (80 Federal 3d 359, vacated and remanded). Opinion of the Court by Justice Souter, in which Chief Justice Rehnquist and Justices Stevens, Kennedy, Ginsburg, and Breyer joined, and in which Justices O'Connor, Scalia, and Thomas joined except as to Parts II-B and II-C. Justice Scalia filed an opinion concurring in part and concurring in the judgment, in which Justices O'Connor and Thomas joined.

Editorial note. Suitum owned a vacant residential lot near Lake Tahoe. Under the regional land-use regime, her parcel lay in a stream environment zone in which the agency's regulations barred essentially all additional land coverage, so that no residence could be built. The regime allotted owners of such parcels transferable development rights, including residential development rights and land coverage transfer rights, which could be sold to owners of eligible receiving parcels elsewhere in the basin under an administered points system. The agency determined that her lot was ineligible for development. She did not attempt to market her transferable rights.

Editorial note. The District Court held the takings claim unripe because the owner had not sought to transfer or sell her development rights, and the Court of Appeals for the Ninth Circuit affirmed. The Supreme Court vacated and remanded for consideration of the merits.

Editorial note. The claim was ripe. The rule derived is that the finality requirement of Williamson County is satisfied when the regulating body has arrived at a definitive position on the permissible use of the particular parcel, and that a claimant need not undertake further transactions with third parties in order to establish finality. Where the regulatory scheme confers transferable development rights, their existence and worth are matters going to the amount of compensation owed, and possibly to the extent of the deprivation, but they do not leave the agency's decision provisional or require the owner to test the market before suing.

Editorial note. Justice Souter distinguished the two ripeness concerns of the takings cases — whether the agency has reached a final decision, and whether compensation has been sought through available state procedures — and held that only the first was at issue. Nothing further remained for the agency to decide about Suitum's parcel; the transfer scheme operated through private sales in which the agency's role was ministerial, and the difficulty of valuing the rights was an ordinary problem of proof for the trier of fact rather than a reason to withhold adjudication. Justice Scalia, concurring in part and in the judgment, agreed that the claim was ripe but would have gone further, treating transferable development rights as a form of compensation to be considered when measuring what is owed rather than as an element of the value remaining in the regulated parcel.

Editorial note. Suitum is the treatise's principal authority on when a regulatory takings claim may be brought, and it is also the point at which transferable development rights enter takings analysis. The separation Justice Scalia pressed — between value remaining in the parcel and compensation supplied in substitution for value taken — remains the central analytical question wherever transfer schemes are used, and it recurs in the treatise's treatment of development rights, conservation regimes, and historic preservation. Read with Penn Central, which counted transferable rights among the mitigating features of the New York scheme.

Editorial note. Followed on finality. The companion ripeness requirement that a claimant first pursue compensation in state court, derived from Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), was overruled by Knick v. Township of Scott, 588 U.S. 180 (2019); the finality principle applied in Suitum survives and was reaffirmed in Pakdel v. City and County of San Francisco, 594 U.S. 474 (2021).

Editorial note. Read with U.S. Const. amend. V, and the treatise chapters on regulatory takings, on transferable development rights, and on land-use procedure and review.