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A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)@@BQck QuoteSingle spaced indented quote - Circv C   (  Cd  ( ( ( FTNFormats for each footnote,  X` hp x (#%'0*,.8135@8: Williamson County, supra. Although it is unclear whether the agency still urges precisely that position  J 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 thatv "   the rationale adopted in the decision under review is unsupported by our precedents.  J  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 asapplied  J8 regulatory taking claim.9 8 uB ԍ FTN    XgEpXFr  ddf < Two years earlier, in Penn Central Transp. Co. v. New York  uBW City,, 438 U.S. 104 (1978), we reached the merits of Penn Central's claim that the New York City Landmarks Preservation Commission's denial of permission to construct an office building on top of Grand Central Terminal was a taking, despite our observation that  3 !  it simply cannot be maintained, on this record, that appellants have  uB been prohibited from occupying any portion of the airspace above the Terminal. While the [City's] actions in denying applications to construct an office building in excess of 50 stories above the Terminal may indicate that it will refuse to issue a certificate of appropriateness for any comparably sized structure .... [t]he [City has] emphasized that whether any construction would be allowed depended on whether the proposed addition `would harmonize in scale, material, and character with [the Terminal].' Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion  uB1 of the airspace above the Terminal. Id., at 136!137 (internal citation omitted).9 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  JH amounted to a taking. oH  uB ԍ FTN  &  XgEpXFr  ddf < Such facial challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face  uB an uphill battle, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987), since it is difficult to demonstrate that mere enactment of a piece of legislation deprived [the owner] of  uBB economically viable use of [his] property. Hodel v. Virginia Surface  uB Mining & Reclamation Assn., Inc., 452 U.S. 264, 297 (1981). Suitum does not purport to challenge the agency's regulations on their face. Id., at 260. Without employH  "  Ԯing 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  J8 zoning provisions. Ibid.  J  The following Term, Hodel v. Virginia Surface Mining  J & 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  JH 1977, 30 U.S.C. 1201 et seq., as a taking of their  J property. As in Agins, we concluded that an asapplied 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.,  J0 at 297. %0 uB ԍ FTN  &  XgEpXFr  ddf < As in Agins, we found the Hodel plaintiffs' facial takings  uBO challenge to be ripe, but ruled it out on the merits. 452 U.S., at 295!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.  Jh  Williamson County Regional Planning Comm'n v.  J@ Hamilton Bank of Johnson City, 473 U.S. 172 (1985),  J 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  J( its property, and thus ha[d] passed beyond the Agins  J 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 investmentbacked  J` 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  J question, ibid. Thus, a developer must at least resort to the procedure for obtaining variances ... [and obtain] a conclusive determination by the Commission whether  JH it would allow the proposed development, id., at 193, in order to ripen its taking claim.  J  MacDonald, Sommer & Frates v. Yolo County, 477  J U.S. 340 (1986), reaffirmed Williamson County's  J 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 dryrun 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  Jx 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]  J property.' m !  MacDonald, supra, at 349 (quoting William J son County, supra, at 199!200). U!  v!   Leaving aside the question of how definitive a local` "    J zoning decision must be to satisfy Williamson County's  J demand for finality,  uB@ ԍ FTN  &  XgEpXFr  ddf < MacDonald suggested that the Williamson County final decision requirement might sometimes require multiple proposals or variance applications before a landowner's case will be considered ripe. We wrote, for example, that [r]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews. 477 U.S., at 353,  uB n.9; compare Williamson County, 473 U.S., at 191 (applicant must obtain final definitive position on how regulations will be applied to  uB the land in question), with id., at 193 (applicant must obtain conclusive determination whether specific proposed development will be  uBf permitted). Amici the Mayhews et al., urge us to establish a rule that a taking plaintiff need only make a single proposal and a single request for a variance to ensure the ripeness of his claim.  uB Brief for the Mayhews, et al., Amici Curiae 22. That issue is not presented in this case. 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  J MacDonald, local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with the one  Jp 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  J question. Williamson County, supra, at 191. It is undisputed that the agency has finally determined that I "   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  J 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  J sort demanded by Williamson County.  ;H2 d d8B؃  4 2  The agency nonetheless argued below, and the lower  J> 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,  J the type of final decision required by our Williamson  Jv 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.  ;H2 d d8C؃  L2  The agency's argument that Suitum's case is not ripe because no  ! `values attributable to [Suitum's TDRs]  J. areknown,' 5! Brief for Respondent 23 (quoting Suitum  J 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 alloca J tions, 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  JH 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,  J0 and the agency's own position assumes that there aremany 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  J before it, see supra, at ___. % uB ԍ FTN  &  XgEpXFr  ddf < Moreover, the Court may, of course, request additional briefing on this subject if necessary, and a trial could be held if the issue cannot be decided on summary judgment. Of course, as the agency  J 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 "    J property. See, e.g., United States v. 819.98 Acres of Land, More or Less, Located in Wasatch and Summit  J Counties, 78 F.3d 1468, 1469!1470 (CA10 1996) (upholding valuation of condemned land based on expert testimony relating to comparable sales and discounted  J8 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  J 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.  9H1 d dy7III؃  2  Finally, the agency argues (for the first time, before this Court) that Suitum's claim is unripe under the  J  fitness for review requirement of Abbott Laboratories  J 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 twopronged test: BQ C  , , (  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  J consideration. Id., at 148!149 (footnote omitted).hBQ d   ( , , 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  J 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 noncom/ "  Ԯpliance, 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.  C i4* * *  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. ` BIt is so ordered.ă