NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 96–243

BERNADINE SUITUM, PETITIONER v. TAHOE

REGIONAL PLANNING AGENCY

on writ of certiorari to the united states court of appeals for the ninth circuit

[May 27, 1997]

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" (TDRs). 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 TDRs 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 TDRs may be considered in deciding the issue of whether there has been a taking in this case, as opposed to the issue of whether just compensation has been afforded for such a taking. The sole question here is whether the claim is ripe for adjudication, even though Suitum has not attempted to sell the development rights she has or is eligible to receive. We hold that it is.

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.

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 run-off into the watershed (known as "Stream Environment Zones" (SEZs)) receives an IPES score of zero, TRPA Code §37.4.A(3). With limited exceptions not relevant here, the agency permits no "additional land coverage or other permanent land disturbance" on such a parcel. Id., §20.4.

Although the agency's 1987 plan does not provide for the variances and exceptions of conventional land use schemes, it addresses the potential sharpness of its restrictions by granting property owners TDRs 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 TDRs. An owner needs both a "Residential Development Right" and a "Residential Allocation" to place a residential unit on a buildable parcel, id., §§21.6.C, 33.2.A; the latter permits construction to begin in a specific calendar year, but expires at year's end, id., §33.2.B(3)(b). An owner must also have "Land Coverage Rights" for each square foot of impermeable cover placed upon land. App. 145; see also TRPA Code ch. 20. All owners of vacant residential parcels that existed at the effective date of the 1987 plan (July 1, 1987), including SEZ parcels, automatically receive one Residential Development Right, id., §21.6.A; owners of SEZ property may obtain and transfer bonus points equivalent to three additional Residential Development Rights, id., §§35.2.C, 35.2.D. SEZ property owners also receive Land Coverage Rights authorizing coverage of an area equal to 1% of the surface area of their land. Id., §§20.3.A, 37.11. Finally, SEZ owners, like other property owners, may apply for a Residential Allocation, awarded by local jurisdictions in random drawings each year. Id., §33.2.B; App. 98–99. All three kinds of TDRs may be transferred for the benefit of any eligible property in the Lake Tahoe Region, subject to approval by the agency based on the eligibility of the receiving parcel for development. TRPA Code §§20.3.C, 34.1 to 34.3.

In 1972, Suitum and her late husband bought an undeveloped lot in Washoe County, Nevada, within the agency's jurisdiction, and 17 years later, after adoption of the 1987 Regional Plan, Suitum obtained a Residential Allocation through Washoe County's annual drawing. When she then applied to the agency for permission to construct a house on her lot, the agency determined that her property was located within a SEZ, assigned it an IPES score of zero, and denied permission to build. Suitum appealed the denial to the agency's governing board, which itself denied relief.

After the agency turned down the request for a building permit, Suitum made no effort to transfer any of the TDRs that were hers under the 1987 plan, and there is no dispute that she still has the one Residential Development Right that owners of undeveloped lots automatically received, plus the Land Coverage Rights for 183 square feet that she got as the owner of 18,300 square feet of SEZ land. It is also common ground that Suitum has the right to receive three "bonus" Residential Development Rights. Although Suitum has questioned the certainty that she would obtain a new Residential Allocation if she sought one, the agency has represented to this Court that she undoubtably would, see n. 2, supra.

Instead, Suitum brought this 42 U. S. C. §1983 action alleging that in denying her the right to construct a house on her lot, the agency's restrictions deprived her of "all reasonable and economically viable use" of her property, and so amounted to a taking of her property without just compensation in violation of the Fifth and Fourteenth Amendments. App. 15, 16. The agency responded by objecting, among other things, that Suitum's taking claim was not ripe due to her "failure to obtain a final decision by TRPA as to the amount of development . . . that may be allowed by" the agency. Id., at 10. On cross-motions for summary judgment, the District Court ordered supplemental briefing on the nature of Suitum's TDRs, including "what [TDRs] can be transferred in [Suitum's] case and the procedures, prerequisites and value of such transfer as applicable in this case." Id., at 89. The agency introduced an affidavit from a real estate appraiser, whose opinion was that the Residential Development Right that Suitum already has, and the three more to which she is entitled, have a market value between $1,500 and $2,500 each; that her Land Coverage Rights can be sold for $6 to $12 per square foot ($1,098–$2,196 total); and that her lot devoid of all TDRs would sell for $7,125 to $16,750. Id., at 131–132. The appraiser also said that if Suitum were to obtain a Residential Allocation and sell it with a Development Right, together they would bring between $30,000 and $35,000. Ibid. As if in spite of the figures supplied by its own affidavit, however, the agency maintained that the "actual benefits of the [TDR] program for [Suitum] . . . can only be known if she pursues an appropriate [transfer] application," with the result that Suitum's claim was not ripe for adjudication. Id., at 91. For her part, Suitum insisted that trying to transfer her TDRs would be an "`idle and futile act'" because the TDR program is a "sham," and she supplied the affidavit of one of the agency's former employees whose view was that "there is little to no value to [Suitum's TDRs] at the present time as . . . either [there is] no market for them or the procedure for transferring one particular right would restrict the opportunity to transfer a remaining right," Id., at 135.

The District Court decided that Suitum's claim was not ripe for consideration because "[a]s things now stand, there is no final decision as to how [Suitum] will be allowed to use her property." Suitum v. Tahoe Regional Planning Agency, No. CV–N–91–040–ECR (D. Nev., Mar. 30, 1994) (App. to Pet. for Cert. C–3)). Although the Court found that "there is significant value in the transfer of [Suitum's TDRs], . . . . until [specific] values attributable to the transfer program are known, the court cannot realistically assess whether and to what extent [the agency's] regulations have frustrated [Suitum's] reasonable expectations." Id., at C–3 to C–4.

The Court of Appeals for the Ninth Circuit affirmed this ripeness ruling for the like reason that "[w]ithout an application for the transfer of development rights" there would be no way to "know the regulations' full economic impact or the degree of their interference with [Suitum's] reasonable investment-backed expectations[,]" and without action on a transfer application there would be no "final decision from [the agency] regarding the application of the regulation[s] to the property at issue." 80 F. 3d 359, 362–363 (1996). We granted certiorari to consider the ripeness of Suitum's taking claim, 519 U. S. ___ (1996), and now reverse.

The only issue presented is whether Suitum's claim of a regulatory taking of her land in violation of the Fifth and Fourteenth Amendments is ready for judicial review under prudential ripeness principles. There are two independent prudential hurdles to a regulatory taking claim brought against a state entity in federal court. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), explained that a plaintiff must demonstrate that she has both received a "final decision regarding the application of the [challenged] regulations to the property at issue" from "the government entity charged with implementing the regulations," id., at 186, and sought "compensation through the procedures the State has provided for doing so," id., at 194. The first requirement follows from the principle that only a regulation that "goes too far," Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), results in a taking under the Fifth Amendment, see, e.g., MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 348 (1986) ("[a] court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes"); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014–1019 (1992) (regulation "goes too far" and results in a taking "at least[] in the extraordinary circumstance when no productive or economically beneficial use of land is permitted"). The second hurdle stems from the Fifth Amendment's proviso that only takings without "just compensation" infringe that Amendment; "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation," Williamson County,, supra, at 195. Because only the "final decision" prong of Williamson was addressed below and briefed before this Court, we confine our discussion here to that issue.

In holding Suitum's claim to be unripe, the Ninth Circuit agreed with the agency's argument that Suitum had failed to obtain a final and authoritative decision from the agency sufficient to satisfy the first prong of Williamson County, supra. Although it is unclear whether the agency still urges precisely that position before this Court, see, e.g., Brief for Respondent 21 (conceding that "[w]e know the full extent of the regulation's impact in restricting petitioner's development of her own land"), we think it important to emphasize that the rationale adopted in the decision under review is unsupported by our precedents.

Agins v. City of Tiburon, 447 U. S. 255 (1980), is the first case in which this Court employed a notion of ripeness in declining to reach the merits of an as-applied regulatory taking claim. In Agins, the landowners who challenged zoning ordinances restricting the number of houses they could build on their property sued without seeking approval for any particular development on their land. We held that the only issue justiciable at that point was whether mere enactment of the statute amounted to a taking. Id., at 260. Without employing the term "ripeness," the Court explained that because the owners "ha[d] not submitted a plan for development of their property as the [challenged] ordinances permit[ted], there [was] as yet no concrete controversy regarding the application of the specific zoning provisions." Ibid.

The following Term, Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), toughened our nascent ripeness requirement. There, coal producers and landowners challenged the enactment of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1201 et seq., as a taking of their property. As in Agins, we concluded that an as-applied challenge was unripe, reasoning that "[t]here is no indication in the record that appellees ha[d] availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting . . . a variance from the [applicable provisions of the Act]," 452 U. S., at 297. Hodel thus held that where the regulatory regime offers the possibility of a variance from its facial requirements, a landowner must go beyond submitting a plan for development and actually seek such a variance to ripen his claim.

Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), confirmed Hodel's holding. In Williamson County, a developer's plan to build a residential complex was rejected by the local Planning Commission as inconsistent with zoning ordinances and subdivision regulations in eight different respects. This Court acknowledged that "[r]espondent ha[d] submitted a plan for developing its property, and thus ha[d] passed beyond the Agins threshold," id., at 187, but nonetheless held the taking challenge unripe, reasoning that "among the factors of particular significance in the [taking] inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations," id., at 191, "factors [that] simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question," ibid. Thus, a developer must at least "resort to the procedure for obtaining variances . . . [and obtain] a conclusive determination by the Commission whether it would allow" the proposed development, id., at 193, in order to ripen its taking claim.

MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 (1986), reaffirmed Williamson County's requirement of a final agency position. In MacDonald, a developer purchased property and presented a tentative subdivision plan to the local Planning Commission. After the Commission treated the proposal as inconsistent with the zoning regulations in several respects, the developer immediately filed suit. Without even relying on the character of the dry-run in the submission of a merely tentative plan, we emphasized that in the course of litigation two state courts had given opinions that development of the property was possible under the regulations in question, flatly contrary to the developer's conclusory allegation that the regulations required him to provide a greenbelt as a public gratuity. See 477 U. S., at 345–347. Hence, we held the claim unripe under the rationale of Williamson County: "`[t]he effect of the Commission's application of the zoning ordinance . . . on the value of respondent's property . . . . cannot be measured . . . until a final decision is made as to how the regulations will be applied to [the developer's] property.'" MacDonald, supra, at 349 (quoting Williamson County, supra, at 199–200).

Leaving aside the question of how definitive a local zoning decision must be to satisfy Williamson County's demand for finality, two points about the requirement are clear: it applies to decisions about how a taking 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." Id., at 350. When such flexibility or discretion may be brought to bear on the permissible use of property as singular as a parcel of land, a sound judgment about what use will be allowed simply cannot be made by asking whether a parcel's characteristics or a proposal's details facially conform to the terms of the general use regulations.

The demand for finality is satisfied by Suitum's claim, however, there being no question here about how the "regulations at issue [apply] to the particular land in question." Williamson County, 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 TDRs 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.

The agency nonetheless argued below, and the lower courts agreed, see supra, at __, that there remains a "final decision" for the agency to make: action on a possible application by Suitum to transfer the TDRs to which she is indisputably entitled. This is not, however, the type of "final decision" required by our Williamson County precedents. 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 TDRs 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. The only decision left to the agency is approval of a particular transfer of TDRs to make certain that a given potential buyer may lawfully use them. But whether a particular sale of TDRs may be completed is quite different from whether TDRs are saleable; so long as the particular buyer is not the only person who can lawfully buy, the rights would not be rendered unsaleable even if the agency were to make a discretionary decision to kill a particular sale. And the class of buyers is not even arguably so limited here, where there is no question so far as the law is concerned that TDRs may be bought and used for the benefit of all sorts of land parcels and lots.

The agency's argument that Suitum's case is not ripe because no "`values attributable to [Suitum's TDRs] are known,'" Brief for Respondent 23 (quoting Suitum v. Tahoe Regional Planning Agency, No. CV–N–91–040–ECR (D. Nev., Mar. 30, 1994) (App. to Pet. for Cert. C–4)), is just a variation on the preceding position, and fares no better. First, as to Suitum's rights to receive TDRs that she may later sell, we have already noted that little or no uncertainty remains. Although the value of a Residential Development Right may well be greater if it is offered together with a Residential Allocation, and although Suitum must still enter the lottery for the latter, there is no discretionary decision to be made in determining whether she will get one; in fact, the probability of her getting one is "100 percent" according to the agency, see Tr. of Oral Arg. 40, since there are fewer applications than available allocations, see id., at 39–40. But even if that were not the case, as it probably will not always be, it would be unreasonable to require Suitum to enter the drawing in order to ripen her suit. The agency does not, and surely could not, maintain that if the odds of success in the Allocation lottery were low, Suitum's taking claim could be kept at bay from year to year until she actually won the drawing; such a rule would allow any local authority to stultify the Fifth Amendment's guarantee. Rather, in such circumstances, the value attributable to the allocation Suitum might or might not receive in the drawing would simply be discounted to reflect the mathematical likelihood of her obtaining one.

Second, as to Suitum's right to transfer her TDRs, the only contingency apart from private market demand turns on the right of the agency to deny approval for a specific transfer on grounds that the buyer's use of the TDRs would violate the terms of the scheme or other local land use regulation, and the right of a local regulatory body to deny transfer approval for the latter reason. See TRPA Code §§20.3.C, 34.2, 34.3. But even if these potential bars based on a buyer's intended use of TDRs should turn out to involve the same degree of discretion assumed in the Williamson County ripeness requirement, that discretion still would not render the value of the TDRs nearly as unknowable as the chances of particular development being permitted on a particular parcel in the absence of a zoning board decision that could quite lawfully be either yes or no. While a particular sale is subject to approval, saleability is not, and the agency's own position assumes that there are many potential, lawful buyers for Suitum's TDRs, whose receipt of those rights would unquestionably be approved.

The valuation of Suitum's TDRs is therefore simply an issue of fact about possible market prices, and one on which the District Court had considerable evidence before it, see supra, at ___. Of course, as the agency appears to be saying, see, e.g., Brief for Respondent 22–23, the very best evidence of the value of Suitum's TDRs might be their actual selling price (assuming, of course, that the sale were made in good faith and at arm's length). But similar determinations of market value are routinely made in judicial proceedings without the benefit of a market transaction in the subject property. See, e.g., United States v. 819.98 Acres of Land, More or Less, Located in Wasatch and Summit Counties, 78 F. 3d 1468, 1469–1470 (CA10 1996) (upholding valuation of condemned land based on expert testimony relating to comparable sales and discounted cash flow); United States v. L. E. Cooke Co., 991 F. 2d 336, 338–339 (CA6 1993) (same with respect to valuation of mineral rights leases); see also 5J. Sackman, Nichols' Law of Eminent Domain §23–01, p. 23–6 (rev. 3d ed. 1997) ("[I]t is well established that the value of . . . land taken or injured by the exercise of the power of eminent domain may be shown by opinion evidence."); see generally 4 id., §12.02 (discussing establishment of market value of condemned land). While it is true that market value may be hard to calculate without a regular trade in TDRs, if Suitum is ready to proceed in spite of this difficulty, ripeness doctrine does not block her. In fact, the reason for the agency's objection is probably a concern that without much market experience in sales of TDRs, their market values will get low estimates. But this is simply one of the risks of regulatory pioneering, and the pioneer here is the agency, not Suitum.

Finally, the agency argues (for the first time, before this Court) that Suitum's claim is unripe under the "fitness for review" requirement of Abbott Laboratories v. Gardner, 387 U. S. 136 (1967). Abbott Laboratories arose on a petition under the Administrative Procedure Act (APA), 5 U. S. C. §701–704 (1964 ed., Supp. II) by a group of drug manufacturers seeking review of a labelling regulation promulgated by the Commissioner of Food and Drugs (FDA) but not yet the subject of any enforcement action against the manufacturers. The petitioners claimed that the FDA lacked statutory authority to impose the new labelling requirement; FDA countered that the claim was not ripe for judicial review for want of any proceedings to enforce the regulation.

The Court dealt with ripeness under a two-pronged test:

"Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id., at 148–149 (footnote omitted).

Under the "fitness for review" prong, we first noted that FDA's adoption of the labelling regulation was "final agency action" within the meaning of §10 of the APA, 5 U. S. C. §704, and then rejected the Government's argument that review must await enforcement. 387 U. S., at 149–152. We reasoned that "the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage" because promulgation of the regulations "puts petitioners in a dilemma": "Either they must comply with the [labelling] requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution." Id., at 152 (internal quotation marks omitted). Similarly, the immediate impact of the regulation on the manufacturers satisfied the "hardship" prong: "Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance," hardship has been demonstrated and "access to the courts . . . must be permitted." Id., at 153.

Abbott Laboratories is not on point. The drug companies in that case were challenging the validity of a regulation as beyond the scope of the FDA's authority. Whatever the arguable merit of the FDA's position on ripeness may have been, it rested on the fact that the manufacturers could have precipitated their challenge (if they had wanted) by violating the regulation and defending any subsequent prosecution by placing the regulation's validity in question. Suitum is in a different position from the manufacturers. She does not challenge the validity of the agency's regulations; her litigating position assumes that the agency may validly bar her land development just as all agree it has actually done, and her only challenge to the TDRs raises a question about their value, not about the lawfulness of issuing them. 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. Indeed, to the extent that Abbott Laboratories is in any sense instructive in the disposition of the case before us, it cuts directly against the agency: Suitum is just as definitively barred from taking any affirmative step to develop her land as the drug companies were bound to take affirmative steps to change their labels. The only discretionary step left to an agency in either situation is enforcement, not determining applicability.

* * *

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.

It is so ordered.