Suitum v. Tahoe Regional Planning Agency

SUITUM v. TAHOE REGIONAL PLANNING AGENCY

Certiorari to the United States Court of Appeals for the Ninth Circuit.

No. 96–243. Argued February 26, 1997 — Decided May 27, 1997.

80 F. 3d 359, vacated and remanded.

Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined, and in which O'Connor, Scalia, and Thomas, JJ., joined except as to Parts II–B and II–C. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which O'Connor and Thomas, JJ., joined, post, p. 745.

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.

The report occupies pages 725 through 751 of volume 520 of the United States Reports. The opinion of the Court begins at page 728 and ends at page 744; the opinion of Justice Scalia concurring in part and concurring in the judgment begins at page 745.

[520 U.S. 725] “Petitioner Suitum owns an undeveloped lot near Lake Tahoe. Respondent Tahoe Regional Planning Agency determined that the lot is ineligible for development under agency regulations, but that Suitum is entitled to receive certain allegedly valuable ‘Transferable Development Rights’ (TDR's) that she can sell to other landowners with the agency's approval. Suitum did not seek those rights, but instead brought this action for compensation under 42 U. S. C. § 1983, claiming that the agency's determinations amounted to a regulatory taking of her property without just compensation in violation of the Fifth and Fourteenth Amendments. The District Court held that her claim is not ripe for adjudication because she has not attempted to sell her TDR's, so that their specific values are unknown and the court could not realistically assess whether the agency's regulations have frustrated her reasonable expectations. The Ninth Circuit agreed and affirmed.”

[520 U.S. 725] “Held: Suitum's regulatory takings claim is ripe for adjudication. Pp. 733–744.”

[520 U.S. 725] “(a) Suitum must satisfy the prudential ripeness principle requiring that she receive a ‘final decision’ from the agency regarding the application of its regulations to her property. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172, 186. Pp. 733–734.”

[520 U.S. 725] “(b) The Ninth Circuit's rationale for holding Suitum's claim unripe — that she had failed to obtain a final and authoritative agency decision — is unsupported by this Court's precedents. . . . These precedents make two points clear about the finality requirement: it applies to decisions about how a takings plaintiff's particular parcel 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. [520 U.S. 726] . . . It is undisputed that the agency has finally determined that her land lies entirely within a zone in which development is not permitted. Because the agency has no discretion to exercise over her 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 the particular parcel. Pp. 735–739.”

[520 U.S. 726] “(c) Contrary to the lower courts' holdings, action on a possible application by Suitum to transfer her TDR's is not the type of ‘final decision’ required by the Court's Williamson County precedents. . . . No such question is presented, however, since the parties agree on the particular TDR's to which Suitum is entitled, and no discretionary decision must be made by any agency official for her to obtain them or to offer them for sale. Pp. 739–740.”

[520 U.S. 726] “(d) The agency's argument that Suitum's case is not ripe because no values attributable to her TDR's are known is just a variation on the preceding position, and fares no better. . . . [B]ecause the agency does not deny that there are many potential lawful buyers whose receipt of the TDR's would unquestionably be approved, the TDRs' valuation is simply an issue of fact about possible market prices, on which the District Court had considerable evidence. Similar determinations are routinely made by courts without the benefit of a market transaction in the subject property. Pp. 740–742.”

[520 U.S. 726] “(e) The agency's argument that Suitum's claim is unripe under the ‘fitness for review’ requirement of Abbott Laboratories v. Gardner, 387 U. S. 136, 148–149, is rejected. . . . [520 U.S. 727] Suitum is just as definitively barred from taking any affirmative step to develop her land as the petitioners there, who prevailed against the contention that their claim was unripe, were bound to take affirmative steps to comply with the regulations they were challenging. Pp. 742–744.”

[520 U.S. 728] “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.”

[520 U.S. 737] “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.”

[520 U.S. 738] “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.”

[520 U.S. 739] “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.”

[520 U.S. 739] “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 [520 U.S. 740] must be made by any agency official for her to obtain them or to offer them for sale.”

[520 U.S. 741] “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.”

[520 U.S. 741] “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 . . . . [520 U.S. 742] But similar determinations of market value are routinely made in judicial proceedings without the benefit of a market transaction in the subject property.”

[520 U.S. 744] “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.”

[520 U.S. 744] “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.”

[520 U.S. 744] “It is so ordered.”

[520 U.S. 745] “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.”

Editorial note. This record is a research edition, not a substitute for the official reporter. It reproduces the Reporter of Decisions apparatus and reproduces the Court's own text in verbatim passages arranged under the Court's own sequence of analysis, each bracketed with the official United States Reports page on which the passage appears. Passages set without quotation marks are Society prose; every quotation mark in this record encloses the Court's or the Reporter's words.

Editorial note. The Court-authored sections of this record are SELECTED EXCERPTS, not complete opinions. Three limitations are declared. First, the numbered footnotes of both opinions are not reproduced. Second, the account of the regional planning regime and of the transfer scheme at pages 729 through 733, and the review of Agins, Hodel, Williamson County, and MacDonald at pages 734 through 738, are summarised rather than quoted at length. Third, the opinion of Justice Scalia concurring in part and concurring in the judgment appears here as its opening statement together with a Society summary of its argument; it is not reproduced in full.

Editorial note. Obvious typographic and scanning defects in the digitised bound volume have been silently corrected against the surrounding text; no substantive word has been altered, modernised, or paraphrased inside a quotation. For any purpose requiring the complete official text, consult the bound volume through the canonical source recorded with this authority.

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.