As required under Tennessee law, in 1973 respondent's
predecessor in interest, a land developer, obtained petitioner
Planning Commission's approval of a preliminary plat for
development of a tract. The tract was to be developed in accord
with the requirements of a county zoning ordinance for "cluster"
development of residential areas and the Commission's implementing
regulations. In 1977, the county zoning ordinance was changed so as
to reduce the allowable density of dwelling units, but the
Commission continued to apply the 1973 ordinance and regulations to
the developer's tract. In 1979, however, the Commission decided
that further development of the tract should be governed by the
ordinance and regulations then in effect. The Commission thereafter
disapproved plats proposing further development of the remainder of
the tract on various grounds, including failure to comply with
current density requirements. Respondent filed suit against the
Commission and its members and staff (also petitioners) in Federal
District Court pursuant to 42 U.S.C. § 1983, alleging that the
Commission had taken its property without just compensation by
refusing to approve the proposed development. The jury found that
respondent had been denied the "economically viable" use of its
property in violation of the Just Compensation Clause of the Fifth
Amendment, and awarded damages for the temporary taking of
respondent's property. The District Court entered an injunction
requiring the Commission to apply the 1973 ordinance and
regulations to the project, but granted judgment notwithstanding
the jury's verdict for the Commission on the taking claim,
concluding that the temporary deprivation of economic benefit from
respondent's property, as a matter of law, could not constitute a
taking. The Court of Appeals reversed, holding that application of
government regulations affecting an owner's use of property may
constitute a taking, and that the evidence supported the jury's
finding that the property had no economically feasible use during
the time between the Commission's refusal to approve the plat and
the jury's verdict.
Held:
1. Even assuming,
arguendo, that government regulation
may effect a taking for which the Fifth Amendment requires just
compensation,
Page 473 U. S. 173
and assuming further that the Fifth Amendment requires the
payment of money damages to compensate for such a taking, the jury
verdict in this case cannot be upheld because respondent's claim is
premature. Respondent has not yet obtained a final decision
regarding the application of the ordinance and regulations to its
property, nor utilized the procedures Tennessee provides for
obtaining just compensation, and its claim therefore is not ripe.
Pp.
473 U. S.
186-197.
(a) Although respondent's plan for developing its property was
rejected, it did not then seek variances that would have allowed it
to develop the property according to its proposed plat.
Cf.
Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U. S. 264. The
record does not support respondent's claim that the Commission's
denial of approval for respondent's plat was equivalent to a denial
of variances. Thus, respondent has not yet obtained a final
decision regarding how it will be allowed to develop its property.
Respondent's contention that it should not be required to seek
variances because its suit is predicated upon 42 U.S.C. § 1983 is
without merit. While there is no requirement that a plaintiff
exhaust administrative remedies before bringing a § 1983 action,
the question whether administrative remedies must be exhausted is
conceptually distinct from the question whether an administrative
action must be final before it is judicially reviewable. Pp.
473 U. S.
186-194.
(b) The Fifth Amendment does not require that just compensation
be paid in advance of, or contemporaneously with, the taking. 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. Under Tennessee law, a property owner may bring
an inverse condemnation action to obtain just compensation for an
alleged taking of property under certain circumstances. Respondent
has not shown that the inverse condemnation procedure is
unavailable or inadequate, and until it has utilized that
procedure, its taking claim is premature. Pp.
473 U. S.
194-197.
2. Respondent's claim also is premature if viewed under the
theory that government regulation that goes so far that it has the
same effect as a physical taking, must be viewed not as a Fifth
Amendment "taking," but as an invalid exercise of the police power,
violative of the Due Process Clause of the Fourteenth Amendment.
Resolution of the due process question depends, in significant
part, upon an analysis of the effect the Commission's application
of the ordinance and regulations had on the value of respondent's
property and investment-backed profit expectations. That effect
cannot be measured until a final decision is made as to how the
regulations will be applied to respondent's property. No such
decision had been made at the time respondent filed its § 1983
action,
Page 473 U. S. 174
because respondent failed to apply for variances from the
regulations. Pp.
473 U. S.
197-200.
729 F.2d 402, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, MARSHALL, REHNQUIST and O'CONNOR, JJ.,
joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL,
J., joined,
post, p.
473 U. S. 201.
STEVENS, J., filed an opinion concurring in the judgment,
post, p.
473 U. S. 202.
WHITE, J., filed a dissenting statement,
post, p.
473 U. S. 200.
POWELL, J., took no part in the decision of the case.
Page 473 U. S. 175
JUSTICE BLACKMUN delivered the opinion of the Court.
Respondent, the owner of a tract of land it was developing as a
residential subdivision, sued petitioners, the Williamson County
(Tennessee) Regional Planning Commission and its members and staff,
in United States District Court, alleging that petitioners'
application of various zoning laws and regulations to respondent's
property amounted to a "taking" of that property. At trial, the
jury agreed, and awarded respondent $350,000 as just compensation
for the "taking." Although the jury's verdict was rejected by the
District Court, which granted a judgment notwithstanding the
verdict to petitioners, the verdict was reinstated on appeal.
Petitioners and their
amici urge this Court to overturn
the jury's award on the ground that a temporary regulatory
interference with an investor's profit expectation does not
constitute a "taking" within the meaning of the Just Compensation
Clause of the Fifth Amendment, [
Footnote 1] or, alternatively, on the ground that, even if
such interference does constitute a taking, the Just Compensation
Clause does not require money damages as recompense. Before we
reach those contentions,
Page 473 U. S. 176
we examine the procedural posture of respondent's claim.
I
A
Under Tennessee law, responsibility for land use planning is
divided between the legislative body of each of the State's
counties and regional and municipal "planning commissions." The
county legislative body is responsible for zoning ordinances to
regulate the uses to which particular land and buildings may be
put, and to control the density of population and the location and
dimensions of buildings. Tenn.Code Ann. § 13-7-101 (1980). The
planning commissions are responsible for more specific regulations
governing the subdivision of land within their region or
municipality for residential development. §§ 13-3-403, 13-4-303.
Enforcement of both the zoning ordinances and the subdivision
regulations is accomplished in part through a requirement that the
planning commission approve the plat of a subdivision before the
plat may be recorded. §§ 13-3-402, 13-4-302 (1980 and
Supp.1984).
Pursuant to § 13-7-101, the Williamson County "Quarterly Court,"
which is the county's legislative body, in 1973 adopted a zoning
ordinance that allowed "cluster" development of residential areas.
Under "cluster" zoning,
"both the size and the width of individual residential lots in .
. . [a] development may be reduced, provided . . . that the overall
density of the entire tract remains constant -- provided, that is,
that an area equivalent to the total of the areas thus 'saved' from
each individual lot is pooled and retained as common open
space."
2 N. Williams, American Land Planning Law § 47.01, pp. 212-213
(1974). Cluster zoning thus allows housing units to be grouped, or
"clustered" together, rather than being evenly spaced on uniform
lots.
Page 473 U. S. 177
As required by § 13-3-402, respondent's predecessor in interest
(developer) in 1973 submitted a preliminary plat for the cluster
development of its tract, the Temple Hills Country Club Estates
(Temple Hills), to the Williamson County Regional Planning
Commission for approval. At that time, the county's zoning
ordinance and the Commission's subdivision regulations required
developers to seek review and approval of subdivision plats in two
steps. The developer first was to submit for approval a preliminary
plat, or "initial sketch plan," indicating, among other things, the
boundaries and acreage of the site, the number of dwelling units
and their basic design, the location of existing and proposed
roads, structures, lots, utility layouts, and open space, and the
contour of the land. App. in No. 82-5388 (CA6), pp. 857, 871 (CA
App.). Once approved, the preliminary plat served as a basis for
the preparation of a final plat. Under the Commission's
regulations, however, approval of a preliminary plat "will not
constitute acceptance of the final plat."
Id. at 872.
Approval of a preliminary plat lapsed if a final plat was not
submitted within one year of the date of the approval, unless the
Commission granted an extension of time, or unless the approval of
the preliminary plat was renewed.
Ibid. The final plat,
which is the official authenticated document that is recorded, was
required to conform substantially to the preliminary plat, and, in
addition, to include such details as the lines of all streets,
lots, boundaries, and building setbacks.
Id. at 875.
On May 3, 1973, the Commission approved the developer's
preliminary plat for Temple Hills. App. 246-247. The plat indicated
that the development was to include 676 acres, of which 260 acres
would be open space, primarily in the form of a golf course.
Id. at 422. A notation on the plat indicated that the
number of "allowable dwelling units for total development" was 736,
but lot lines were drawn in for only 469 units. The areas in which
the remaining 276 units were to be placed were left blank and bore
the notation "this parcel not to be developed until approved by the
planning commission."
Page 473 U. S. 178
The plat also contained a disclaimer that
"parcels with note 'this parcel not to be developed until
approved by the planning commission' not a part of this plat and
not included in gross area."
Ibid. The density of 736 allowable dwelling units was
calculated by multiplying the number of acres (676) by the number
of units allowed per acre (1.089).
Id. at 361. Although
the zoning regulations in effect in 1973 required that density be
calculated
"on the basis of total acreage less fifty percent (50%) of the
land lying in the flood plain . . . and less fifty percent (50%) of
all land lying on a slope with a grade in excess of twenty-five
percent (25%),"
CA App. 858, no deduction was made from the 676 acres for such
land. Tr. 369.
Upon approval of the preliminary plat, the developer conveyed to
the county a permanent open space easement for the golf course, and
began building roads and installing utility lines for the project.
App. 259-260. The developer spent approximately $3 million building
the golf course, and another $500,000 installing sewer and water
facilities. Defendant's Ex. 96. Before housing construction was to
begin on a particular section, a final plat of that section was
submitted for approval. Several sections, containing a total of 212
units, were given final approval by 1979. App. 260, 270, 278, 423.
The preliminary plat, as well, was reapproved four times during
that period.
Id. at 270, 274, 362, 423.
In 1977, the county changed its zoning ordinance to require that
calculations of allowable density exclude 10% of the total acreage
to account for roads and utilities.
Id. at 363; CA App.
862. In addition, the number of allowable units was changed to one
per acre from the 1.089 per acre allowed in 1973.
Id. at
858, 862; Tr. 1169-1170, 1183. The Commission continued to apply
the zoning ordinance and subdivision regulations in effect in 1973
to Temple Hills, however, and reapproved the preliminary plat in
1978. In August, 1979, the Commission reversed its position and
decided that plats submitted for renewal should be evaluated under
the zoning
Page 473 U. S. 179
ordinance and subdivision regulations in effect when the renewal
was sought. App. 279-282. The Commission then renewed the Temple
Hills plat under the ordinances and regulations in effect at that
time.
Id. at 283-284.
In January, 1980, the Commission asked the developer to submit a
revised preliminary plat before it sought final approval for the
remaining sections of the subdivision. The Commission reasoned that
this was necessary because the original preliminary plat contained
a number of surveying errors, the land available in the subdivision
had been decreased, inasmuch as the State had condemned part of the
land for a parkway, and the areas marked "reserved for future
development" had never been platted. Plaintiff's Exs. 1078 and
1079; Tr. 164-168. A special committee (Temple Hills Committee) was
appointed to work with the developer on the revision of the
preliminary plat. Plaintiff's Ex. 1081; Tr. 169-170.
The developer submitted a revised preliminary plat for approval
in October, 1980. [
Footnote 2]
Upon review, the Commission's staff and the Temple Hills Committee
noted several problems with the revised plat. App. 304-305. First,
the allowable density under the zoning ordinance and subdivision
regulations then in effect was 548 units, rather than the 736 units
claimed under the preliminary plat approved in 1973. The difference
reflected a decrease in 18.5 acres for the parkway, a decrease of
66 acres for the 10% deduction for roads, and an exclusion of 44
acres for 50% of the land lying on slopes exceeding a 25% grade.
Second, two cul-de-sac roads that had become necessary because of
the land taken for the parkway exceeded the maximum length allowed
for such roads under the subdivision regulations in effect in both
1980 and 1973.
Page 473 U. S. 180
Third, approximately 2,000 feet of road would have grades in
excess of the maximum allowed by county road regulations. Fourth,
the preliminary plat placed units on land that had grades in excess
of 25%, and thus was considered undevelopable under the zoning
ordinance and subdivision regulations. Fifth, the developer had not
fulfilled its obligations regarding the construction and
maintenance of the main access road. Sixth, there were inadequate
fire protection services for the area, as well as inadequate open
space for children's recreational activities. Finally, the lots
proposed in the preliminary plat had a road frontage that was below
the minimum required by the subdivision regulations in effect in
1980.
The Temple Hills Committee recommended that the Commission grant
a waiver of the regulations regarding the length of the
cul-de-sacs, the maximum grade of the roads, and the minimum
frontage requirement.
Id. at 297, 304-306. Without
addressing the suggestion that those three requirements be waived,
the Commission disapproved the plat on two other grounds: first,
the plat did not comply with the density requirements of the zoning
ordinance or subdivision regulations, because no deduction had been
made for the land taken for the parkway, and because there had been
no deduction for 10% of the acreage attributable to roads or for
50% of the land having a slope of more than 25%; and second, lots
were placed on slopes with a grade greater than 25%. Plaintiff's
Ex. 9112.
The developer then appealed to the County Board of Zoning
Appeals for an "interpretation of the Residential Cluster zoning
[ordinance] as it relates to Temple Hills." [
Footnote 3] App. 314.
Page 473 U. S. 181
On November 11, 1980, the Board determined that the Commission
should apply the zoning ordinance and subdivision regulations that
were in effect in 1973 in evaluating the density of Temple Hills.
Id. at 328. It also decided that, in measuring which lots
had excessive grades, the Commission should define the slope in a
manner more favorable to the developer.
Id. at 329.
On November 26, respondent, Hamilton Bank of Johnson City,
acquired through foreclosure the property in the Temple Hills
subdivision that had not yet been developed, a total of 257.65
acres.
Id. at 189-190. This included many of the parcels
that had been left blank in the preliminary plat approved in 1973.
In June, 1981, respondent submitted two preliminary plats to the
Commission -- the plat that had been approved in 1973 and
subsequently reapproved several times, and a plat indicating
respondent's plans for the undeveloped areas, which was similar to
the plat submitted by the developer in 1980.
Id. at 88.
The new plat proposed the development of 688 units; the reduction
from 736 units represented respondent's concession that 18.5 acres
should be removed from the acreage because that land had been taken
for the parkway.
Id. at 424, 425.
On June 18, the Commission disapproved the plat for eight
reasons, including the density and grade problems cited in the
October, 1980, denial, as well as the objections the Temple Hills
Committee had raised in 1980 to the length of two cul-de-sacs, the
grade of various roads, the lack of fire protection, the disrepair
of the main-access road, and the minimum frontage.
Id. at
370. The Commission declined to follow the decision of the Board of
Zoning Appeals that the plat
Page 473 U. S. 182
should be evaluated by the 1973 zoning ordinance and subdivision
regulations, stating that the Board lacked jurisdiction to hear
appeals from the Commission.
Id. at 187-188, 360-361.
B
Respondent then filed this suit in the United States District
Court for the Middle District of Tennessee, pursuant to 42 U.S.C. §
1983, alleging that the Commission had taken its property without
just compensation and asserting that the Commission should be
estopped under state law from denying approval of the project.
[
Footnote 4] Respondent's
expert witnesses testified that the design that would meet each of
the Commission's eight objections would allow respondent to build
only 67 units, 409 fewer than respondent claims it is entitled to
build, [
Footnote 5] and that
the development of only 67 sites would result in a net loss of over
$1 million. App. 377. Petitioners' expert witness, on the other
hand, testified that the Commission's eight objections could be
overcome by a design that would allow development of approximately
300 units. Tr. 1467-1468.
After a 3-week trial, the jury found that respondent had been
denied the "economically viable" use of its property in violation
of the Just Compensation Clause, and that the Commission was
estopped under state law from requiring respondent to comply with
the current zoning ordinance and
Page 473 U. S. 183
subdivision regulations, rather than those in effect in 1973.
App. 32-33. The jury awarded damages of $350,000 for the temporary
taking of respondent's property.
Id. at 33-34. [
Footnote 6] The court entered a
permanent injunction requiring the Commission to apply the zoning
ordinance and subdivision regulations in effect in 1973 to Temple
Hills, and to approve the plat submitted in 1981.
Id. at
34.
The court then granted judgment notwithstanding the verdict in
favor of the Commission on the taking claim, reasoning in part that
respondent was unable to derive economic benefit from its property
on a temporary basis only, and that such a temporary deprivation,
as a matter of law, cannot constitute a taking.
Id. at 36,
41. In addition, the court modified its permanent injunction to
require the Commission merely to apply the zoning ordinance and
subdivision regulations in effect in 1973 to the project, rather
than requiring approval of the plat, in order to allow the parties
to resolve "legitimate technical questions of whether plaintiff
meets the requirements of the 1973 regulations,"
id. at
42, through the applicable state and local appeals procedures.
[
Footnote 7]
A divided panel of the United States Court of Appeals for the
Sixth Circuit reversed. 729 F.2d 402 (1984). The court
Page 473 U. S. 184
held that application of government regulations affecting an
owner's use of property may constitute a taking if the regulation
denies the owner all "economically viable" use of the land, and
that the evidence supported the jury's finding that the property
had no economically feasible use during the time between the
Commission's refusal to approve the preliminary plat and the jury's
verdict.
Id. at 405-406. Rejecting petitioners' argument
that respondent never had submitted a plat that complied with the
1973 regulations, and thus never had acquired rights that could be
taken, the court held that the jury's estoppel verdict indicates
that the jury must have found that respondent had acquired a
"vested right" under state law to develop the subdivision according
to the plat submitted in 1973.
Id. at 407. Even if
respondent had no vested right under state law to finish the
development, the jury was entitled to find that respondent had a
reasonable investment-backed expectation that the development could
be completed, and that the actions of the Commission interfered
with that expectation.
Ibid.
The court rejected the District Court's holding that the taking
verdict could not stand as a matter of law. A temporary denial of
property could be a taking, and was to be analyzed in the same
manner as a permanent taking. Finally, relying upon the dissent in
San Diego Gas & Electric Co. v. San Diego,
450 U. S. 621,
450 U. S. 636
(1981), the court determined that damages are required to
compensate for a temporary taking. [
Footnote 8]
Page 473 U. S. 185
II
We granted certiorari to address the question whether Federal,
State, and local Governments must pay money damages to a landowner
whose property allegedly has been "taken" temporarily by the
application of government regulations. 469 U.S. 815 (1984).
Petitioners and their
amici contend that we should answer
the question in the negative by ruling that government regulation
can never effect a "taking" within the meaning of the Fifth
Amendment. They recognize that government regulation may be so
restrictive that it denies a property owner all reasonable
beneficial use of its property, and thus has the same effect as an
appropriation of the property for public use, which concededly
would be a taking under the Fifth Amendment. According to
petitioners, however, regulation that has such an effect should not
be viewed as a taking. Instead, such regulation should be viewed as
a violation of the Fourteenth Amendment's Due Process Clause,
because it is an attempt by government to use its police power to
effect a result that is so unduly oppressive to the property owner
that it constitutionally can be effected only through the power of
eminent domain. Violations of the Due Process Clause, petitioners'
argument concludes, need not be remedied by "just
compensation."
The Court twice has left this issue undecided.
San Diego Gas
& Electric Co. v. San Diego, supra; Agins v. Tiburon,
447 U. S. 255,
447 U. S. 263
(1980). Once again, we find that the question is not properly
presented, and must be left for another day. For whether we examine
the Planning Commission's application of its regulations under
Fifth Amendment "taking" jurisprudence, or under the precept of due
process, we conclude that respondent's claim is premature.
Page 473 U. S. 186
III
We examine the posture of respondent's cause of action first by
viewing it as stating a claim under the Just Compensation Clause.
This Court often has referred to regulation that "goes too far,"
Pennsylvania Coal Co. v. Mahon, 260 U.
S. 393,
260 U. S. 415
(1922), as a "taking."
See, e.g., Ruckelshaus v. Monsanto
Co., 467 U. S. 986,
467 U. S.
1004-1005 (1984);
Agins v. Tiburon, 447 U.S. at
447 U. S. 260;
PruneYard Shopping Center v. Robins, 447 U. S.
74,
447 U. S. 83
(1980);
Kaiser Aetna v. United States, 444 U.
S. 164,
444 U. S. 174
(1979);
Andrus v. Allard, 444 U. S.
51,
444 U. S. 65-66
(1979);
Penn Central Transp. Co. v. New York City,
438 U. S. 104,
438 U. S. 124
(1978);
Goldblatt v. Hempstead, 369 U.
S. 590,
369 U. S. 594
(1962);
United States v. Central Eureka Mining Co.,
357 U. S. 155,
357 U. S. 168
(1958). Even assuming that those decisions meant to refer literally
to the Taking Clause of the Fifth Amendment, and therefore stand
for the proposition that regulation may effect a taking for which
the Fifth Amendment requires just compensation,
see San
Diego, 450 U.S. at
450 U. S.
647-653 (dissenting opinion), and even assuming further
that the Fifth Amendment requires the payment of money damages to
compensate for such a taking, the jury verdict in this case cannot
be upheld. Because respondent has not yet obtained a final decision
regarding the application of the zoning ordinance and subdivision
regulations to its property, nor utilized the procedures Tennessee
provides for obtaining just compensation, respondent's claim is not
ripe.
A
As the Court has made clear in several recent decisions, a claim
that the application of government regulations effects a taking of
a property interest is not ripe until the government entity charged
with implementing the regulations has reached a final decision
regarding the application of the regulations to the property at
issue. In
Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S. 264
Page 473 U. S. 187
(1981), for example, the Court rejected a claim that the Surface
Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U.S.C.
§ 1201
et seq., effected a taking because:
"There is no indication in the record that appellees have
availed themselves of the opportunities provided by the Act to
obtain administrative relief by requesting either a variance from
the approximate-original-contour requirement of § 515(d) or a
waiver from the surface mining restrictions in § 522(e). If [the
property owners] were to seek administrative relief under these
procedures, a mutually acceptable solution might well be reached
with regard to individual properties, thereby obviating any need to
address the constitutional questions. The potential for such
administrative solutions confirms the conclusion that the taking
issue decided by the District Court simply is not ripe for judicial
resolution."
452 U.S. at
452 U. S. 297
(footnote omitted).
Similarly, in
Agins v. Tiburon, supra, the Court held
that a challenge to the application of a zoning ordinance was not
ripe because the property owners had not yet submitted a plan for
development of their property. 447 U.S. at
447 U. S. 260.
In
Penn Central Transp. Co. v. New York City, supra, the
Court declined to find that the application of New York City's
Landmarks Preservation Law to Grand Central Terminal effected a
taking because, although the Landmarks Preservation Commission had
disapproved a plan for a 50-story office building above the
terminal, the property owners had not sought approval for any other
plan, and it therefore was not clear whether the Commission would
deny approval for all uses that would enable the plaintiffs to
derive economic benefit from the property. 438 U.S. at
438 U. S.
136-137.
Respondent's claim is in a posture similar to the claims the
Court held premature in
Hodel. Respondent has submitted a
plan for developing its property, and thus has passed beyond the
Agins threshold. But, like the
Hodel
plaintiffs,
Page 473 U. S. 188
respondent did not then seek variances that would have allowed
it to develop the property according to its proposed plat,
notwithstanding the Commission's finding that the plat did not
comply with the zoning ordinance and subdivision regulations. It
appears that variances could have been granted to resolve at least
five of the Commission's eight objections to the plat. The Board of
Zoning Appeals had the power to grant certain variances from the
zoning ordinance, including the ordinance's density requirements
and its restriction on placing units on land with slopes having a
grade in excess of 25%. Tr. 1204-1205;
see n 3,
supra. The Commission had the
power to grant variances from the subdivision regulations,
including the cul-de-sac, road-grade, and frontage requirements.
[
Footnote 9] Indeed, the Temple
Hills Committee had recommended that the Commission grant variances
from those regulations. App. 304-306. Nevertheless, respondent did
not seek variances from either the Board or the Commission.
Respondent argues that it "did everything possible to resolve
the conflict with the commission," Brief for Respondent 42, and
that the Commission's denial of approval for respondent's plat was
equivalent to a denial of variances. The record does not support
respondent's claim, however. There is no evidence that respondent
applied to the Board of Zoning Appeals for variances from the
zoning ordinance. As noted, the developer sought a ruling that the
ordinance in effect in 1973 should be applied, but neither
respondent nor the developer
Page 473 U. S. 189
sought a variance from the requirements of either the 1973 or
1980 ordinances. Further, although the subdivision regulations in
effect in 1981 required that applications to the Commission for
variances be in writing, and that notice of the application be
given to owners of adjacent property, [
Footnote 10] the record contains no evidence that
respondent ever filed a written request for variances from the
cul-de-sac, road-grade, or frontage requirements of the subdivision
regulations, or that respondent ever gave the required notice.
[
Footnote 11] App. 212-213;
see also Tr. 1255-1257.
Page 473 U. S. 190
Indeed, in a letter to the Commission written shortly before its
June 18, 1981, meeting to consider the preliminary sketch,
respondent took the position that it would not request variances
from the Commission until
after the Commission approved
the proposed plat:
"[Respondent] stands ready to work with the Planning Commission
concerning the necessary variances. Until the initial sketch is
renewed, however, and the developer has an opportunity to do
detailed engineering work, it is impossible to determine the exact
nature of any variances that may be needed."
Plaintiff's Ex. 9028, p. 6. The Commission's regulations clearly
indicated that, unless a developer applied for a variance in
writing and upon notice to other property owners, "any condition
shown on the plat which would require a variance will constitute
grounds for disapproval of the plat." CA App. 933. Thus, in the
face of respondent's refusal to follow the procedures for
requesting a variance, and its refusal to provide specific
information about the variances it would require, respondent hardly
can maintain that the Commission's disapproval of the preliminary
plat was equivalent to a final decision that no variances would be
granted.
As in
Hodel, Agins, and
Penn Central, then,
respondent has not yet obtained a final decision regarding how it
will be allowed to develop its property. Our reluctance to examine
taking claims until such a final decision has been made is
compelled by the very nature of the inquiry required by the Just
Compensation Clause. Although "[t]he question of what constitutes a
taking' for purposes of the Fifth Amendment has proved to be a
problem of considerable difficulty,"
Page 473 U. S.
191
Penn Central Transp. Co. v. New York City, 438 U.S.
at 438 U. S. 123,
this Court consistently has indicated that among the factors of
particular significance in the inquiry are the economic impact of
the challenged action and the extent to which it interferes with
reasonable investment-backed expectations. Id. at
438 U. S. 124.
See also Ruckelshaus v. Monsanto Co., 467 U.S. at
467 U. S.
1005; PruneYard Shopping Center v. Robins, 447
U.S. at 447 U. S. 83;
Kaiser Aetna v. United States, 444 U.S. at 444 U. S. 175.
Those factors 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.
Here, for example, the jury's verdict indicates only that it
found that respondent would be denied the economically feasible use
of its property if it were forced to develop the subdivision in a
manner that would meet each of the Commission's eight objections.
It is not clear whether the jury would have found that the
respondent had been denied all reasonable beneficial use of the
property had any of the eight objections been met through the grant
of a variance. Indeed, the expert witness who testified regarding
the economic impact of the Commission's actions did not itemize the
effect of each of the eight objections, so the jury would have been
unable to discern how a grant of a variance from any one of the
regulations at issue would have affected the profitability of the
development. App. 377;
see also id. at 102-104.
Accordingly, until the Commission determines that no variances will
be granted, it is impossible for the jury to find, on this record,
whether respondent "will be unable to derive economic benefit" from
the land. [
Footnote 12]
Page 473 U. S. 192
Respondent asserts that it should not be required to seek
variances from the regulations, because its suit is predicated upon
42 U.S.C. § 1983, and there is no requirement that a plaintiff
exhaust administrative remedies before bringing a § 1983 action.
Patsy v. Florida Board of Regents, 457 U.
S. 496 (1982). The question whether administrative
remedies must be exhausted is conceptually distinct, however, from
the question whether an administrative action must be final before
it is judicially reviewable.
See FTC v. Standard Oil Co.,
449 U. S. 232,
449 U. S. 243
(1980);
Bethlehem Steel Corp. v. EPA, 669 F.2d 903, 908
(CA3 1982).
See generally 13A C. Wright, A. Miller, &
E. Cooper, Federal Practice and
Page 473 U. S. 193
Procedure § 3532.6 (1984). While the policies underlying the two
concepts often overlap, the finality requirement is concerned with
whether the initial decisionmaker has arrived at a definitive
position on the issue that inflicts an actual concrete injury; the
exhaustion requirement generally refers to administrative and
judicial procedures by which an injured party may seek review of an
adverse decision and obtain a remedy if the decision is found to be
unlawful or otherwise inappropriate.
Patsy concerned the
latter, not the former.
The difference is best illustrated by comparing the procedure
for seeking a variance with the procedures that, under
Patsy, respondent would not be required to exhaust. While
it appears that the State provides procedures by which an aggrieved
property owner may seek a declaratory judgment regarding the
validity of zoning and planning actions taken by county
authorities,
see Fallin v. Knox County Bd. of
Comm'rs, 656
S.W.2d 338 (Tenn.1983); Tenn.Code Ann. §§ 27-8-101, 27-9-101 to
27-9-113, and 29-14-101 to 29-14113 (1980 and Supp.1984),
respondent would not be required to resort to those procedures
before bringing its § 1983 action, because those procedures clearly
are remedial. Similarly, respondent would not be required to appeal
the Commission's rejection of the preliminary plat to the Board of
Zoning Appeals, because the Board was empowered, at most, to review
that rejection, not to participate in the Commission's
decisionmaking.
Resort to those procedures would result in a judgment whether
the Commission's actions violated any of respondent's rights. In
contrast, resort to the procedure for obtaining variances would
result in a conclusive determination by the Commission whether it
would allow respondent to develop the subdivision in the manner
respondent proposed. The Commission's refusal to approve the
preliminary plat does not determine that issue; it prevents
respondent from developing its subdivision without obtaining the
necessary variances, but leaves open the possibility that
respondent
Page 473 U. S. 194
may develop the subdivision according to its plat after
obtaining the variances. In short, the Commission's denial of
approval does not conclusively determine whether respondent will be
denied all reasonable beneficial use of its property, and therefore
is not a final, reviewable decision.
B
A second reason the taking claim is not yet ripe is that
respondent did not seek compensation through the procedures the
State has provided for doing so. [
Footnote 13] The Fifth Amendment does not proscribe the
taking of property; it proscribes taking without just compensation.
Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U.S. at
452 U. S. 297,
n. 40. Nor does the Fifth Amendment require that just compensation
be paid in advance of, or contemporaneously with, the taking; all
that is required is that a "
reasonable, certain and adequate
provision for obtaining compensation'" exist at the time of the
taking. Regional Rail Reorganization Act Cases,
419 U. S. 102,
419 U. S.
124-125 (1974) (quoting Cherokee Nation v. Southern
Kansas R. Co., 135 U. S. 641,
135 U. S. 659
(1890)). See also Ruckelshaus v. Monsanto Co., 467 U.S. at
467 U. S.
1016; Yearsley v. W. A. Ross Construction Co.,
309 U. S. 18,
309 U. S. 21
(1940); Hurley v. Kincaid, 285 U. S.
95, 285 U. S. 104
(1932). If the government has provided an adequate process for
obtaining compensation, and if resort to that process "yield[s]
just compensation," then the property owner "has no claim
against
Page 473 U. S. 195
the Government" for a taking.
Monsanto, 467 U.S. at
467 U. S.
1013,
467 U. S.
1018, n. 21. Thus, we have held that taking claims
against the Federal Government are premature until the property
owner has availed itself of the process provided by the Tucker Act,
28 U.S.C. § 1491.
Monsanto, 467 U.S. at
467 U. S.
1016-1020. Similarly, 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.
The recognition that a property owner has not suffered a
violation of the Just Compensation Clause until the owner has
unsuccessfully attempted to obtain just compensation through the
procedures provided by the State for obtaining such compensation is
analogous to the Court's holding in
Parratt v. Taylor,
451 U. S. 527
(1981). There, the Court ruled that a person deprived of property
through a random and unauthorized act by a state employee does not
state a claim under the Due Process Clause merely by alleging the
deprivation of property. In such a situation, the Constitution does
not require predeprivation process, because it would be impossible
or impracticable to provide a meaningful hearing before the
deprivation. Instead, the Constitution is satisfied by the
provision of meaningful postdeprivation process. Thus, the State's
action is not "complete" in the sense of causing a constitutional
injury "unless or until the state fails to provide an adequate
postdeprivation remedy for the property loss."
Hudson v.
Palmer, 468 U. S. 517,
468 U. S. 532,
n. 12 (1984). Likewise, because the Constitution does not require
pretaking compensation, and is instead satisfied by a reasonable
and adequate provision for obtaining compensation after the taking,
the State's action here is not "complete" until the State fails to
provide adequate compensation for the taking. [
Footnote 14]
Page 473 U. S. 196
Under Tennessee law, a property owner may bring an inverse
condemnation action to obtain just compensation for an alleged
taking of property under certain circumstances. Tenn.Code Ann. §
29-16-123 (1980). The statutory scheme for eminent domain
proceedings outlines the procedures by which government entities
must exercise the right of eminent domain. §§ 29-16-101 to
29-16-121. The State is prohibited from "enter[ing] upon
[condemned] land" until these procedures have been utilized and
compensation has been paid the owner, § 29-16-122, but if a
government entity does take possession of the land without
following the required procedures,
"the owner of such land may petition for a jury of inquest, in
which case the same proceedings may be had, as near as may be, as
hereinbefore provided; or he may sue for damages in the ordinary
way. . . ."
§ 29-16-123. The Tennessee state courts have interpreted §
29-16-123 to allow recovery through inverse condemnation where the
"taking" is effected by restrictive zoning laws or development
regulations.
See Davis v. Metropolitan Govt. of
Nashville, 620
S.W.2d 532, 533-534 (Tenn. App.1981);
Speight v.
Lockhart, 524
S.W.2d 249 (Tenn.App.1975). Respondent
Page 473 U. S. 197
has not shown that the inverse condemnation procedure is
unavailable or inadequate, and until it has utilized that
procedure, its taking claim is premature.
IV
We turn to an analysis of respondent's claim under the due
process theory that petitioners espouse. As noted, under that
theory, government regulation does not effect a taking for which
the Fifth Amendment requires just compensation; instead, regulation
that goes so far that it has the same effect as a taking by eminent
domain is an invalid exercise of the police power, violative of the
Due Process Clause of the Fourteenth Amendment. Should the
government wish to accomplish the goals of such regulation, it must
proceed through the exercise of its eminent domain power, and, of
course, pay just compensation for any property taken. The remedy
for a regulation that goes too far, under the due process theory,
is not "just compensation," but invalidation of the regulation, and
if authorized and appropriate, actual damages. [
Footnote 15]
The notion that excessive regulation can constitute a "taking"
under the Just Compensation Clause stems from language in
Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393
Page 473 U. S. 198
(1922).
See San Diego, 450 U.S. at
450 U. S. 649
(dissenting opinion). Writing for the
Pennsylvania Coal
Court, Justice Holmes stated:
"The general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too far, it will
be recognized as a taking."
260 U.S. at
260 U. S. 415.
Those who argue that excessive regulation should be considered a
violation of the Due Process Clause, rather than a "taking," assert
that
Pennsylvania Coal used the word "taking" not in the
literal Fifth Amendment sense, but as a metaphor for actions having
the same effect as a taking by eminent domain.
See, e.g., Agins
v. City of Tiburon, 24 Cal. 3d
266, 274, 598 P.2d 25, 29 (1979),
aff'd, 447 U.
S. 255 (1980);
Fred F. French Investing Co. v. City
of New York, 39 N.Y.2d 587, 594, 350 N.E.2d 381, 385 (1976).
Because no issue was presented in
Pennsylvania Coal
regarding compensation, it is argued, the Court was free to use the
term loosely. [
Footnote
16]
The due process argument finds support, we are told, in the fact
that the
Pennsylvania Coal Court framed the question
presented as "whether the police power can be stretched so far" as
to destroy property rights, 260 U.S. at
260 U. S. 413,
and by the Court's emphasis upon the need to proceed by eminent
domain, rather than by regulation, when the effect of the
regulation would be to destroy property interests:
"Government hardly could go on if, to some extent, values
incident to property could not be diminished without paying for
every such change in the general law. As long recognized, some
values are enjoyed under an implied limitation, and must yield to
the police power. But
Page 473 U. S. 199
obviously the implied limitation must have its limits, or the
contract and due process clauses are gone. One fact for
consideration in determining such limits is the extent of the
diminution. When it reaches a certain magnitude, in most if not in
all cases,
there must be an exercise of eminent domain and
compensation to sustain the act."
Ibid. (Emphasis added.)
Further, in earlier cases involving the constitutional
limitations on the exercise of police power, Justice Holmes'
opinions for the Court made clear that the Court did not view
overly restrictive regulation as triggering an award of
compensation, but as an invalid means of accomplishing what
constitutionally can be accomplished only through the exercise of
eminent domain.
See, e.g., Block v. Hirsh, 256 U.
S. 135,
256 U. S. 156
(1921);
Hudson County Water Co. v. McCarter, 209 U.
S. 349,
209 U. S. 355
(1908);
Martin v. District of Columbia, 205 U.
S. 135,
205 U. S. 139
(1907).
We need not pass upon the merits of petitioners' arguments, for
even if viewed as a question of due process, respondent's claim is
premature. Viewing a regulation that "goes too far" as an invalid
exercise of the police power, rather than as a "taking" for which
just compensation must be paid, does not resolve the difficult
problem of how to define "too far," that is, how to distinguish the
point at which regulation becomes so onerous that it has the same
effect as an appropriation of the property through eminent domain
or physical possession. [
Footnote 17] As we have noted, resolution of that
Page 473 U. S. 200
question depends, in significant part, upon an analysis of the
effect the Commission's application of the zoning ordinance and
subdivision regulations had on the value of respondent's property
and investment-backed profit expectations. That effect cannot be
measured until a final decision is made as to how the regulations
will be applied to respondent's property. No such decision had been
made at the time respondent filed its § 1983 action, because
respondent failed to apply for variances from the regulations.
V
In sum, respondent's claim is premature, whether it is analyzed
as a deprivation of property without due process under the
Fourteenth Amendment or as a taking under the Just Compensation
Clause of the Fifth Amendment. [
Footnote 18] We therefore reverse the judgment of the
Court of Appeals and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE WHITE dissents from the holding that the issues in this
case are not ripe for decision at this time.
JUSTICE POWELL took no part in the decision of this case.
Page 473 U. S. 201
[
Footnote 1]
"[N]or shall private property be taken for public use, without
just compensation. "
The Fifth Amendment's prohibition, of course, applies against
the States through the Fourteenth Amendment.
Chicago, B. &
Q. R. Co. v. Chicago, 166 U. S. 226,
166 U. S. 241
(1897);
see also San Diego Gas & Electric Co. v. San
Diego, 450 U. S. 621,
450 U. S. 623,
n. 1 (1981).
[
Footnote 2]
The developer also submitted the preliminary plat that had been
approved in 1973 and reapproved on several subsequent occasions,
contending that it had the right to develop the property according
to that plat. As we have noted, that plat did not indicate how all
of the parcels would be developed. App. 84-85.
[
Footnote 3]
The Board of Zoning Appeals was empowered:
"a. To hear and decide appeals on any permit, decision,
determination, or refusal made by the [County] Building
Commissioner or other administrative official in the carrying out
or enforcement of any provision of this Resolution; and to
interpret the Zoning map and this Resolution."
"
* * * *"
"c. To hear and decide applications for variances from the terms
of this Resolution. Such variances shall be granted only where by
reason of exceptional narrowness, shallowness, or shape of a
specific piece of property which at the time of adoption of this
Resolution was a lot of record, or where by reason of exceptional
topographic situations or conditions of a piece of property the
strict application of the provisions of this Resolution would
result in practical difficulties to or undue hardship upon the
owner of such property."
Plaintiff's Ex. 9112.
See also Tenn.Code.Ann. §§
13-7-106 to 13-7-109 (1980).
[
Footnote 4]
Respondent also alleged that the Commission's refusal to approve
the plat violated respondent's rights to substantive and procedural
due process, and denied it equal protection. The District Court
granted a directed verdict to petitioners on the substantive due
process and equal protection claims, and the jury found that
respondent had not been denied procedural due process. App. 32.
Those issues are not before us.
[
Footnote 5]
Id. at 377; Tr. 238-243. Respondent claimed it was
entitled to build 476 units: the 736 units allegedly approved in
1973 minus the 212 units already built or given final approval and
minus 48 units that were no longer available because land had been
taken from the subdivision for the parkway.
[
Footnote 6]
Although the record is less than clear, it appears that the jury
calculated the $350,000 award by determining a fair rate of return
on the value of the property for the time between the Commission's
rejection of the preliminary plat in 1980 and the jury's verdict in
March, 1982.
See id. at 800-805; Tr. of Oral Arg. 25,
32-33. In light of our disposition of the case, we need not reach
the question whether that measure of damages would provide just
compensation, or whether it would be appropriate if respondent's
cause of action were viewed as stating a claim under the Due
Process Clause.
[
Footnote 7]
While respondent's appeal was pending before the Court of
Appeals, the parties reached an agreement whereby the Commission
granted a variance from its cul-de-sac and road-grade regulations
and approved the development of 476 units, and respondent agreed,
among other things, to rebuild existing roads, and build all new
roads, according to current regulations. App. to Brief for
Petitioners 35.
[
Footnote 8]
Judge Wellford dissented. 729 F.2d at 409. He did not agree that
the evidence supported a finding that respondent's property had
been taken, in part because there was no evidence that respondent
had formally requested a variance from the regulations. Even if
there was a temporary denial of the "economically viable" use of
the property, Judge Wellford would have held that mere fluctuations
in value during the process of governmental decisionmaking are
"
incidents of ownership,'" and cannot be considered a
"`taking,'" id. at 410, quoting Agins v. Tiburon,
447 U. S. 255,
447 U. S. 263,
n. 9 (1980). He also did not agree that damages could be awarded to
remedy any taking, reasoning that the San Diego Gas
dissent does not reflect the views of the majority of this Court,
and that this Court never has awarded damages for a temporary
taking where there was no invasion, physical occupation, or
"seizure and direction" by the State of the landowner's property.
729 F.2d at 411.
[
Footnote 9]
The subdivision regulations in effect in 1980 and 1981
provided:
"Variances may be granted under the following conditions:"
"Where the subdivider can show that strict adherence to these
regulations would cause unnecessary hardship, due to conditions
beyond the control of the subdivider. If the subdivider creates the
hardship due to his design or in an effort to increase the yield of
lots in his subdivision, the variance will not be granted."
"Where the Planning Commission decides that there are
topographical or other conditions peculiar to the site, and a
departure from their regulations will not destroy their
intent."
CA App. 932.
[
Footnote 10]
The Commission's regulations required that
"Each applicant must file with the Planning Commission a written
request for variance stating at least the following:"
"a. The variance requested."
"b. Reason or circumstances requiring the variance."
"c. Notice to the adjacent property owners that a variance is
being requested."
"Without the application any condition shown on the plat which
would require a variance will constitute grounds for disapproval of
the plat."
Id. at 933.
[
Footnote 11]
Respondent's predecessor in interest requested, and apparently
was granted, a waiver of the 10% road-grade regulation for section
VI of the subdivision.
See Plaintiff's Exs. 1078, 9094.
The predecessor in interest wrote a letter on January 3, 1980, that
respondent contends must be construed as a request for a waiver of
the road-grade regulation for the entire subdivision:
"I contend that the road grade and slope question . . . is
adequately provided for by both the [subdivision] Regulations and
the Zoning Ordinance. In both, the Planning Commission is given the
authority to approve roads that have grades in excess of 10%."
"In our particular case, it was common knowledge from the
beginning that, due to the character of the land involved, that
there would be roads that exceeded the 10% slope. In fact, in our
first Section, there is a stretch of road that exceeds the 10%;
therefore I respectfully request that this letter be made an
official part of the Planning Commission Minutes of January 3,
1980, and further the Zoning Approval which has been granted be
allowed to stand without any changes."
Defendants' Ex. 96.
Even assuming,
arguendo, that the letter constituted a
request for a variance, respondent's taking claim nevertheless is
not ripe. There is no evidence that respondent requested variances
from the regulations that formed the basis of the other objections
raised by the Commission, such as those regulating the length of
cul-de-sacs. Absent a final decision regarding the application of
all eight of the Commission's objections, it is impossible
to tell whether the land retained any reasonable beneficial use or
whether respondent's expectation interests had been destroyed.
[
Footnote 12]
The District Court's instructions allowed the jury to find a
taking if it ascertained that "the regulations in question as
applied to [respondent's] property denied [respondent] economically
viable use of its property." Tr. 2016. That instruction seems to
assume that respondent's taking theory was simply that its property
was rendered valueless by the application of new zoning laws and
subdivision regulations in 1980. The record indicates, however,
that respondent's claim was based upon a state law theory of
"vested rights," and that the alleged "taking" was the Commission's
interference with respondent's "expectation interest" in completing
the development according to its original plans. The evidence that
it was not economically feasible to develop just the 67 units
respondent claims the Commission's actions would limit it to
developing was based upon the cost of building the development
according to the original plan. The expected income from the sale
of the 67 units apparently was measured against the cost of the
27-hole golf course and the cost of installing water and sewer
connections for a large development that would not have had to have
been installed for a development of only 67 units. App.191-197; Tr.
690;
see also id. at 2154-2155. Thus, the evidence appears
to indicate that it would not be profitable to develop 67 units
because respondent had made various expenditures in the expectation
that the development would contain far more units; the evidence
does not appear to support the proposition that, aside from those
"reliance" expenditures, development of 67 units on the property
would not be economically feasible.
We express no view of the propriety of applying the "economic
viability" test when the taking claim is based upon such a theory
of "vested rights" or "expectation interest."
Cf. Andrus v.
Allard, 444 U. S. 51,
444 U. S. 66
(1979) (analyzing a claim that Government regulations effected a
taking by reducing expected profits). It is sufficient for our
purposes to note that whether the "property" taken is viewed as the
land itself or respondent's expectation interest in developing the
land as it wished, it is impossible to determine the extent of the
loss or interference until the Commission has decided whether it
will grant a variance from the application of the regulations.
[
Footnote 13]
Again, it is necessary to contrast the procedures provided for
review of the Commission's actions, such as those for obtaining a
declaratory judgment,
see Tenn.Code Ann. §§ 29-14-101 to
29-14-113 (1980), with procedures that allow a property owner to
obtain compensation for a taking. Exhaustion of review procedures
is not required.
See Patsy v. Florida Board of Regents,
457 U. S. 496
(1982). As we have explained, however, because the Fifth Amendment
proscribes takings
without just compensation, no
constitutional violation occurs until just compensation has been
denied. The nature of the constitutional right therefore requires
that a property owner utilize procedures for obtaining compensation
before bringing a § 1983 action.
[
Footnote 14]
The analogy to
Parratt is imperfect, because
Parratt does not extend to situations such as those
involved in
Logan v. Zimmerman Brush Co., 455 U.
S. 422 (1982), in which the deprivation of property is
effected pursuant to an established state policy or procedure, and
the State could provide predeprivation process. Unlike the Due
Process Clause, however, the Just Compensation Clause has never
been held to require pretaking process or compensation.
Ruckelshaus v. Monsanto Co., 467 U.
S. 986,
467 U. S.
1016 (1984). Nor has the Court ever recognized any
interest served by pretaking compensation that could not be equally
well served by post-taking compensation. Under the Due Process
Clause, on the other hand, the Court has recognized that
predeprivation process is of "obvious value in reaching an accurate
decision," that the "only meaningful opportunity to invoke the
discretion of the decisionmaker is likely to be before the
[deprivation] takes effect,"
Cleveland Board of Education v.
Loudermill, 470 U. S. 532,
470 U. S. 543
(1985), and that predeprivation process may serve the purpose of
making an individual feel that the government has dealt with him
fairly.
See Carey v. Piphus, 435 U.
S. 247,
435 U. S. 262
(1978). Thus, despite the Court's holding in
Logan,
Parratt's reasoning applies here by analogy because of the
special nature of the Just Compensation Clause.
[
Footnote 15]
See generally F. Bosselman, D. Callies, & J. Banta,
The Taking Issue 238-255 (1973); Sterk, Government Liability for
Unconstitutional Land Use Regulation, 60 Ind.L.J. 113 (1984);
Oakes, "Property Rights" in Constitutional Analysis Today, 56
Wash.L.Rev. 583 (1981); Stoebuck, Police Power, Takings, and Due
Process, 37 Wash. & Lee L.Rev. 1057 (1980); Comment, Testing
the Constitutional Validity of Land Use Regulations: Substantive
Due Process as a Superior Alternative to Takings Analysis, 57
Wash.L.Rev. 715 (1982); Comment, Just Compensation or Just
Invalidation: The Availability of a Damages Remedy in Challenging
Land Use Regulations, 29 UCLA L.Rev. 711 (1982);
cf.
Costonis, "Fair" Compensation and the Accommodation Power:
Antidotes for the Taking Impasse in Land Use Controversies, 75
Colum.L.Rev. 1021 (1975) (proposing that regulation be viewed as
neither an exercise of the police power, nor as a taking, but as an
exercise of an "accommodation" power, which would require
government to offer "fair compensation" for regulation that "goes
too far").
[
Footnote 16]
In
Pennsylvania Coal, homeowners sought to enjoin a
coal company from mining coal under their house in violation of
Pennsylvania's Kohler Act, which prohibited the mining of coal that
would cause the subsidence of any home or industrial or mercantile
establishment. In defense, the coal company argued not that the
regulation itself was a "taking" for which just compensation was
required, but that,
"[i]f surface support in the anthracite district is necessary
for public use, it can constitutionally be acquired only by
condemnation, with just compensation to the parties affected."
260 U.S. at 400.
[
Footnote 17]
The attempt to determine when regulation goes so far that it
becomes, literally or figuratively, a "taking" has been called the
"lawyer's equivalent of the physicist's hunt for the quark." C.
Haar, Land-Use Planning 766 (3d ed.1976).
See generally
Bauman, The Supreme Court, Inverse Condemnation and the Fifth
Amendment: Justice Brennan Confronts the Inevitable in Land Use
Controls, 15 Rutgers L.J. 15, 20-32 (1983); Stoebuck,
supra, at 1059-1079; Berger, A Policy Analysis of the
Taking Problem, 49 N.Y.U.L.Rev. 165 (1974); Sax, Takings, Private
Property and Public Rights, 81 Yale L.J. 149 (1971); Van Alstyne,
Taking or Damaging by Police Power: The Search for Inverse
Condemnation Criteria, 44 S. Cal.L.Rev. 1 (1971); Michelman,
Property, Utility, and Fairness: Comments on the Ethical
Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165 (1967);
Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).
[
Footnote 18]
In light of this disposition, we need not reach the question
whether the jury's verdict that respondent's expectation interest
had been "taken,"
see n 12,
supra, can stand in light of the absence
of any discussion in the jury instructions about the reasonableness
of the alleged expectation interest.
See Ruckelshaus v.
Monsanto Co., 467 U.S. at
467 U. S.
1005-1006;
Andrus v. Allard, 444 U.S. at
444 U. S. 66.
Nor do we need to reach the question whether the jury was properly
allowed to determine the economic feasibility of the property, or
the extent of interference with respondent's expectation interests,
by reference to only that portion of the development purchased by
respondent, rather than by reference to the development as a whole.
Cf. Penn Central Transp. Co. v. New York City,
438 U. S. 104,
438 U. S. 130
(1978).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
concurring.
The Court today discusses two methods for analyzing the
constitutional injury that may result from the temporary
application of government regulations denying property any
economically viable use. The Court concludes that, under either
approach, the respondent's claim is premature because the
petitioner Williamson County Regional Planning Commission's 1981
disapproval of the respondent's preliminary plat did not constitute
a final reviewable decision, given the availability of a variance
procedure that the respondent did not pursue.
Ante at
473 U. S. 185,
473 U. S.
199-200.
I join the Court's opinion without, however, departing from my
views set forth in
San Diego Gas & Electric Co. v. San
Diego, 450 U. S. 621,
450 U. S. 636
(1981) (BRENNAN, J., dissenting). Because
"[i]nvalidation unaccompanied by payment of damages would hardly
compensate the landowner for any economic loss suffered during the
time his property was taken,"
I believe that,
"once a court establishes that there was a regulatory 'taking,'
the Constitution demands that the government entity pay just
compensation for the period commencing on the date the regulation
first effected the 'taking' and ending on the date the government
entity chooses to rescind or otherwise amend the regulation."
Id. at
450 U. S. 653,
655. As the Court demonstrates in this case, however,
"the Commission's denial of approval does not conclusively
determine whether respondent will be denied all reasonable
beneficial use of its property, and therefore is not a final,
reviewable decision."
Ante at
473 U. S. 194.
In addition,
"[r]espondent has not shown that [Tennessee's] inverse
condemnation procedure is unavailable or inadequate, and until it
has utilized that procedure, its taking claim is premature."
Ante at
473 U. S.
196-197. Accordingly, I join the Court's opinion
reversing the judgment of the Court of Appeals for the Sixth
Circuit.
Page 473 U. S. 202
JUSTICE STEVENS, concurring in the judgment.
Zoning restrictions are a species of governmental regulation
that may impair the value of private property. The impairment may
occur in one of two ways. The substance of a restriction may
permanently curtail the economic value of the property. Or the
procedures that must be employed, either to obtain permission to
use property in a particular way or to remove an unlawful
restriction on its use, may temporarily deprive the owner of a fair
return on his investment. For convenience, I will refer to the
former category as "permanent harms," and the latter as "temporary
harms."
Permanent harms fall into three subcategories. They may be
impermissible even if the government is willing to pay for them.
[
Footnote 2/1] They may be
permissible provided that the property owner is compensated for his
loss. [
Footnote 2/2] Or they may be
permissible even if no compensation at all is paid. [
Footnote 2/3] The permanent harm inflicted
by the zoning regulations at issue in this case is either in the
second or the third subcategory. As the Court demonstrates, until
all available remedies have been exhausted, all we can say with any
certainty is that petitioners may be required to abandon some of
their restrictions upon respondent unless they are prepared to
compensate respondent for whatever permanent harm they may
cause.
In most litigation involving a challenge to a governmental
regulation -- and this case is no exception -- the government
contends that the public interest justifies the harm to the
property owner, and that no compensation need be paid. If the
government fails to convince the court that such is the case --
that is, if it is not entitled to impose an uncompensated
Page 473 U. S. 203
permanent harm on the property owner -- the court can express
its ruling on the merits by stating that the regulation is invalid,
or by characterizing it as a "taking." In either event, the essence
of the holding is a conclusion that the harm caused by the
regulation is one that the government may not impose unless it is
prepared to pay for it. In my opinion, when such a situation
develops, there is nothing in the Constitution that prevents the
government from electing to abandon the permanent-harm-causing
regulation. The fact that a jurist as eminent as Oliver Wendell
Holmes characterized a regulation that "goes too far" as a "taking"
does not mean that such a regulation may never be canceled, and
must always give rise to a right to compensation. [
Footnote 2/4]
To the extent that this case involves a claim that the
respondent has suffered an unlawful permanent harm -- whether it is
called a "taking" or merely an invalid attempt to regulate -- the
Court correctly explains that the issue is not yet ripe for
decision. We do not yet know whether the harm inflicted by the
zoning regulations is severe enough to lead to the conclusion that
the zoning regulations "go too far." We do know, however, that the
process of determining how far the regulations do apply to
respondent has already caused it a fairly serious harm -- one that
the jury calculated as worth $350,000. But that harm is in my
second major category -- it was a "temporary harm."
Temporary harms resulting from a regulatory decision fall into
two broad subcategories: (1) those that result from a
Page 473 U. S. 204
deliberate decision to appropriate certain property for public
use for a limited period of time; and (2) those that are a
byproduct of governmental decisionmaking. The first subcategory
includes, for example, the condemnation of a laundry to be used by
the military for the duration of World War II,
Kimball Laundry
Co. v. United States, 338 U. S. 1 (1949),
or the condemnation of the unexpired term of a lease,
United
States v. General Motors Corp., 323 U.
S. 373 (1945) -- that type of appropriation is correctly
characterized as a "temporary taking." The second subcategory is
fairly characterized as an inevitable cost of doing business in a
highly regulated society.
Temporary harms in the second subcategory are an unfortunate but
necessary byproduct of disputes over the extent of the government's
power to inflict permanent harms without paying for them. Every
time a property owner is successful, in whole or in part, in a
challenge to a governmental regulation -- whether it be a zoning
ordinance, a health regulation, [
Footnote 2/5] or a traffic law [
Footnote 2/6] -- he is almost certain to suffer some
temporary harm in the process. At the least, he will usually incur
significant litigation expenses, and frequently he will incur
substantial revenue losses because the use of his property has been
temporarily curtailed while the dispute is being resolved.
In some situations, these temporary harms are compensable.
Statutes authorize the recovery of some costs of litigation,
including attorney's fees. Sometimes the cost of obtaining
regulatory approval is budgeted in an initial development plan and
ultimately recovered from consumers. But in many cases -- and
apparently this is one -- the property owner has no effective
remedy for such a temporary harm
Page 473 U. S. 205
except a possible claim that his constitutional rights have been
violated. If his property is harmed -- even temporarily -- without
due process of law, he may have a claim for damages based on the
denial of his procedural rights. [
Footnote 2/7] But if the procedure that has been
employed to determine whether a particular regulation "goes too
far" is fair, I know of nothing in the Constitution that entitles
him to recover for this type of temporary harm.
The Due Process Clause of the Fourteenth Amendment requires a
State to employ fair procedures in the administration and
enforcement of all kinds of regulations. It does not, however,
impose the utopian requirement that enforcement action may not
impose any cost upon the citizen unless the government's position
is completely vindicated. We must presume that regulatory bodies
such as zoning boards, school boards, and health boards, generally
make a good faith effort to advance the public interest when they
are performing their official duties, but we must also recognize
that they will often become involved in controversies that they
will ultimately lose. Even though these controversies are costly
and temporarily harmful to the private citizen, as long as fair
procedures are followed, I do not believe there is any basis in the
Constitution for characterizing the inevitable byproduct of every
such dispute as a "taking" of private property.
In this case, there was a substantial dispute not only about the
permissibility of the permanent harm, but also over the fairness of
the procedures employed by petitioners. Respondent made a claim
that its constitutional right to due process of law had been
violated. Conceivably it might have prevailed on that theory if it
could have proved that an unconstitutional procedure had resulted
in an unnecessary delay in obtaining approval of its development
plan.
See ante at
473 U. S. 183, n. 6. But its proof failed on that issue.
The jury
Page 473 U. S. 206
found "that respondent had not been denied procedural due
process."
Ante at
473 U. S. 182, n. 4. In my opinion, that finding
completely disposes of respondent's claim for damages based on the
temporary harm resulting from the controversy between respondent
and petitioners over the applicability and enforceability of the
various zoning restrictions involved in this case.
There is nothing in the record to suggest that petitioners have
tried to condemn any part of respondent's property, either
permanently or for a limited period of time. There was no
"temporary taking" of the kind involved in
Kimball Laundry Co.,
supra, or
General Motors Corp., supra. There has been
a finding that there was no violation of procedural due process.
Accordingly, the award of damages cannot stand, and the judgment
below must be reversed.
[
Footnote 2/1]
For example, even if the State is willing to compensate me, it
has no right to appropriate my property because it does not agree
with my political or religious views.
[
Footnote 2/2]
See, e.g., United States v. 50 Acres of Land,
469 U. S. 24
(1984).
[
Footnote 2/3]
See, e.g., Penn Central Transp. Co. v. New York City,
438 U. S. 104
(1978).
[
Footnote 2/4]
In
Pennsylvania Coal Co. v. Mahon, 260 U.
S. 393,
260 U. S. 415
(1922), Justice Holmes' opinion for the Court stated:
"The general rule at least is that, while property may be
regulated to a certain extent, if regulation goes too far, it will
be recognized as a taking."
As he explained earlier in the opinion, however, all this
implies is that, when regulation
"reaches a certain magnitude, in most if not in all cases, there
must be an exercise of eminent domain and compensation to sustain
the act."
Id. at
260 U. S. 413.
For a complete discussion of this point
see Siemon, Of
Regulatory Takings and Other Myths, 1 J.Land Use & Env.L. 105,
110-117 (1985).
[
Footnote 2/5]
See, e.g., Industrial Union Dept. v. American Petroleum
Institute, 448 U. S. 607
(1980).
[
Footnote 2/6]
See, e.g. Raymond Motor Transportation, Inc. v. Rice,
434 U. S. 429
(1978).
[
Footnote 2/7]
Cf. Memphis Light, Gas & Water Div. v. Craft,
436 U. S. 1
(1978).