520 U.S. 725 (1997), 96-243, Suitum v. Tahoe Regional Planning Agency

Docket Nº:Case No. 96-243
Citation:520 U.S. 725, 117 S.Ct. 1659, 137 L.Ed.2d 980, 65 U.S.L.W. 4385
Case Date:May 27, 1997
Court:United States Supreme Court

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520 U.S. 725 (1997)

117 S.Ct. 1659, 137 L.Ed.2d 980, 65 U.S.L.W. 4385




Case No. 96-243

United States Supreme Court

May 27, 1997

Argued February 26, 1997



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, reasoning, inter alia, that action on a TDR transfer application would be the requisite "final decision" by the agency regarding its regulations' application to Suitum's lot.


Suitum's regulatory takings claim is ripe for adjudication. Pp. 733-744.

(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.

(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. See, e. g., Williamson County, supra, at 191, 193; MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 349. 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, see, e. g., Williamson County, supra, at 191, 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, see, e. g., MacDonald, supra, at 350. Suitum's claim satisfies the demand for finality. It is

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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. Although the parties contest the relevance of the TDR's to the question whether a taking has occurred, resolution of that legal issue will require no further agency action of the sort demanded by Williamson County. Pp. 735-739.

(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. Although those precedents dealt with land, not TDR's, such a decision might be required, given the agency's position that TDR's should be considered when determining whether a taking has occurred, if there were any question here whether Suitum would obtain a discretionary award of salable TDR's. 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.

(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. First, as to her rights to receive TDR's that she may later sell, little or no uncertainty remains. Second, as to her right to transfer her TDR's, the only contingency apart from private market demand turns on the right of the agency or a local regulatory body to deny approval for a specific transfer based on the buyer's intended improper use of the TDR's. However, because 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.

(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. Abbott Laboratories is not on point because the petitioners there were challenging the validity of a regulation as beyond the scope of its issuing agency's authority, whereas Suitum seeks not to invalidate the regulations here at issue, but to be paid for their consequences. Indeed, to the extent that Abbott Laboratories is in any sense instructive in the disposition of this case, it cuts directly against the agency: Suitum is just as definitively barred from taking any

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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.

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. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Schiffer, Anne S. Almy, and John A. Bryson. [*]

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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,

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even though Suitum has not attempted to sell the development rights she has or is eligible to receive. We hold that it is.


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.[1]

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.

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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...

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