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477 U.S. 340
No. 84-2015.
Argued March 26, 1986.
Decided June 25, 1986.
Rehearing Denied Sept. 3, 1986.
See 478 U.S. 1035, 107 S.Ct. 22.
340 Syllabus
[FN*]
FN*
The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the
convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499 (1906).
Appellant submitted a proposal to the
Yolo County Planning Commission to subdivide certain property
into 159 single‑family and multifamily residential lots.
The Commission rejected the proposal, and the County
Board of Supervisors affirmed on the grounds that the proposal
failed to provide adequate public street access, sewer services,
water supplies, and police protection.
Appellant then filed an action in California Superior
Court, alleging that appellee county and city restricted the
property in question to agricultural use by denying all subdivision
applications and thereby appropriated the "entire economic
use" of the property for the sole purpose of providing
a public, open-space buffer.
Appellant sought declaratory and monetary relief.
The court sustained a demurrer to the complaint, holding
that appellant's factual allegations were insufficient and
that monetary damages for inverse condemnation were foreclosed
by Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr.
372, 598 P.2d 25 (1979), aff'd, 447 U.S. 255, 100 S.Ct. 2138,
65 L.Ed.2d 106 (1980).
The California Court of Appeal affirmed, and the California
Supreme Court denied appellant's petition for hearing.
Held:
Absent a final and authoritative determination by the
County Planning Commission as to how it will apply the regulations
at issue to the property in question, this Court cannot determine
whether a "taking" has occurred or whether the county
failed to provide "just compensation." Without knowing the nature and extent of permitted development,
this Court cannot adjudicate the constitutionality of the
regulations that purport to limit it.
Pp. 2566-2569.
Affirmed.
STEVENS,
J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined.
WHITE, J., filed a dissenting opinion, in which BURGER,
C.J., joined and in Parts I, II, and III of which POWELL and
REHNQUIST, JJ., joined, post, p. ---.
REHNQUIST, J., filed a dissenting opinion in which
POWELL, J., joined, post, p. ---.
Howard
N. Ellman argued the cause for appellant.
With him on the briefs were Gus Bauman, Kenneth N.
Burns, Scott C. Verges, and Edward R. MacDonald.
341
William L. Owen argued the cause for
appellees. With
him on the brief were Richard W. Sherwood, Charles R. Mack,
and P. Lawrence Klose.*
*
Briefs of amici curiae urging reversal were filed for Adirondack
Park Local Government Review Board et al. by Ronald A. Zumbrun,
Robert K. Best, and Thomas W. Birmingham; for the American
College of Real Estate Lawyers by Robert O. Hetlage, Eugene
J. Morris, John P. Trevaskis, Jr., and Edward I. Cutler; for
the California Building Industry Association by Rex E. Lee,
Benjamin W. Heineman, Jr., and Carter G. Phillips; for the
First English Evangelical Lutheran Church of Glendale, Cal.,
et al. by Jerrold A. Fadem and Michael M. Berger; for Lodestar
Co. by Gideon Kanner; and for the Mid-America Legal Foundation
by John M. Cannon, Susan W. Watan, and Ann Plunkett Sheldon.
Briefs of amici curiae urging
affirmance were filed for the city of Mountain View, Cal.,
et al. by Peter D. Bulens, Robert J. Logan, Carter J. Stroud,
Albert E. Polonsky, R. R. Campagna, Robert J. Lanzone, Mary
Jo Levinger, Steven F. Nord, K. Kuane Lyders, John W. Witt,
Hadden Roth, and Robert Rogers; for the American Farmland
Trust et al. by Fred P. Bosselman and Clifford L. Weaver;
for the County Supervisors Association of California by Mark
A. Wasser; and for the National Association of Counties et
al. by Bebba Ruth Solomon and Joyce Holmes Benjamin.
Briefs of amici curiae were filed
for the United Stated by Solicitor General Fried, Assistant
Attorney General Habicht, Deputy Solicitor General Kuhl, Deputy
Assistant General Marzulla, and Peter R. Steenland; for the
State of California ex rel. John K. Van de Kamp, Attorney
General, et al. by Mr. Van de Kamp, Richard C. Jacobs, N.
Gregory Taylor and Theodora Berger, Assistant Attorneys General,
and Craig C. Thompson and Richard M. Frank, Deputy Attorneys
General, joined by the Attorneys General of their respective
jurisdictions as follows:
Harold M. Brown of Alaska, Francis X. Bellotti of Massachusetts,
LeRoy S. Zimmerman of Pennsylvania, Charles M. Oberly III
of Delaware, Jim Smith of Florida, L. Su'esu' Lutu of American
Samoa, Leroy Mercer of the Virgin Islands, Richard Opper of
Guam, Corinne K. A. Watanabe of Hawaii, James T. Jones of
Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of
Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr.,
of Louisiana, James E. Tierney of Maine, Stephen H. Sachs
of Maryland, Frank J. Kelley of Michigan, William L. Webster
of Missouri, Jeffrey L. Amestoy of Vermont, Hubert H. Humphrey
III of Minnesota, Robert Abrams of New York, T. Travis Medlock
of South Carolina, Jim Maddox of Texas, David L. Wilkenson
of Utah, Kenneth O. Eisenberry of Washington, Bronson C. La
Follette of Wisconsin, and Archie G. McClinton of Wyoming,
for the National Institute of Municipal Law Officers et al.
by Roy D. Bates, William I. Thornton, Jr., John W. Witt, Roger
F. Cutler, George Agnost, J. Lamar Shelley, Robert J. Alfton,
James K. Baker, Frank B. Gummey III, James D. Montgomery,
Clifford D. Pierce, Jr., William H. Taube, and Charles S.
Rhyne; and for the Conservation Foundation et al. by Charles
L. Siemon, Wendy U. Larsen, and Christopher J. Duerksen.
342
Justice STEVENS delivered the opinion
of the Court.
The
question presented is whether rejection of a subdivision proposal
deprived appellant of its property without just compensation
contrary to the Fifth and Fourteenth Amendments to the United
States Constitution. [FN1]
FN1.
The Fifth Amendment provides "nor shall private property
be taken for public use, without just compensation."
The Fifth Amendment prohibition applies against the
States through the Fourteenth Amendment. See Chicago, B. &
Q.R. Co. v. Chicago, 166 U.S. 226, 236, 239, 241, 17 S.Ct.
581, 584, 585, 586, 41 L.Ed. 979 (1897).
See also Williamson Planning Comm'n v. Hamilton Bank,
473 U.S. 172, 175 n. 1, 105 S.Ct. 3108, 3111, n. 1, 87 L.Ed.2d
126 (1985); San
Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 623,
n. 1, 101 S.Ct. 1287, 1289, n. 1, 67 L.Ed.2d 551 (1981).
I
This appeal is taken from a judgment sustaining
a demurrer to a property owner's complaint for money damages
for an alleged "taking" of its property. In 1975,
appellant submitted a tentative subdivision map to the Yolo
County Planning Commission.
Under appellant's proposal, the subject property, at
least part of which was planted with corn, would be subdivided
into 159 single-family and multifamily residential lots.
The Yolo County Planning Commission rejected
the subdivision plan, however, and the Board of Supervisors
of the county affirmed that determination.
The Board found numerous reasons why appellant's tentative
subdivision map was neither "consistent with the General
Plan of the County of Yolo, nor with the specific plan of
the County of Yolo embodied in the Zoning Regulations for
the County."
App. 73.
Appellant focuses our attention on four of those reasons.
See id., at 45-46 (fourth amended complaint).
First, the
343 Board criticized the plan because
it failed to provide for access to the proposed subdivision
by a public street:
the city of Davis, to which the subdivision would adjoin,
refused to permit the extension of Cowell Boulevard into the
development. See
id., at 74. Even
ignoring this obstacle, "[t]he map presented ma[de] no
provision for any other means of access to the subdivision,"
and the Board calculated that relying on an extension of Cowell
Boulevard alone would "constitut[e] a real and substantial
danger to the public health in the event of fire, earthquake,
flood, or other natural disaster." Id., at 77.
Second, the Board found that appellant's
"Tentative Map as presented [did] not provide for sewer
service by any governmental entity":
"The
only means for provision of sewer services by the El Macero
interceptor sewer require that the proposed subdivision anne[x]
to the existing Community Services Area.
Said annexation is subject to Local Agency Formation
Commission jurisdiction.
The Board finds that no proceedings currently are pending
before LAFCO for the annexation of the proposed subdivision."
Id., at 75.
Third, the Board rejected the development
plan because "[t]he level of [police] protection capable
of being afforded to the proposed site by the [Yolo County]
Sheriff's Department is not intense enough to meet the needs
of the proposed subdivision."
Id., at 76.
Fourth, the Board found inadequate the provision for
water service for the reason that there was "no provision
made in the proposed subdivision for the provision of water
or maintenance of a water system for the subdivision by any
governmental entity."
Ibid.
After this rebuff, appellant filed the
present action and, on the same day, a petition for a writ
of mandate. The
mandate action, which is still pending, seeks to set aside
the Board's
344 decision and to direct the Board
to reconsider appellant's subdivision proposal.
See id., at 32-33 (amended petition for writ of mandate).
This action, in contrast, seeks declaratory and monetary
relief. In it, appellant accuses appellees County of Yolo and
city of Davis of "restricting the Property to an open-space
agricultural use by denying all permit applications, subdivision
maps, and other requests to implement any other use,"
id., at 46, and thereby of appropriating the "entire
economic use" of appellant's property "for the sole
purpose of [providing] ... a public, open-space buffer,"
id., at 51. In
particular, the fourth amended complaint challenges the Board's
decision with respect to the adequacy of public access, sanitation
services, water supplies, and fire and police protection.
[FN2] Because appellees
denied these services, according to the complaint, "none
of the beneficial uses" allowed even for agricultural
land would be suitable for appellant's property.
Id., at 52.
The complaint alleged, in capital letters and "without
limitation by the foregoing enumeration," that "any
application for a zone change, variance or other relief would
be futile." Id.,
at 58. The
complaint also alleged that appellant had "exhausted
all of its administrative remedies" and that its seven
causes of action were "ripe" for adjudication.
Id., at 58, 59.
FN2.
"25. In
determining that Plaintiff's land could only be used for agricultural
purposes, notwithstanding its general planning and zoning
designation for residential use and its suitability therefor,
County determined that (i) the Property lacked access by means
of suitable public streets, a condition resulting from City's
deliberate refusal to permit or approve available access;
(ii) the [P]roperty lacked sanitary sewer service,
a condition resulting directly from the wrongful acts of City,
County and District above alleged[;]
(iii) the Property lacked adequate water supply, a
finding directly contrary to the fact (in evidence before
County) that there are proven sources of supply on the Property
and in the vicinity thereof which serve the immediately adjacent
residential areas [;]
and (iv) that the Property lacked adequate fire and
police services, conditions attributable in part to refusal
on part of County and City to provide such services." App. 51-52.
345
In response to these charges appellees
demurred. [FN3] Pointing to "its earlier Order Sustaining Demurrers and
Granting Leave to Amend," the California Superior Court
contended that "the property had obvious other uses than
agriculture under the Yolo County Code," id., at 115,
and referenced sections permitting such uses, among others,
as ranch and farm dwellings and agricultural storage facilities,
see Yolo County Code §§ 8-2.502, 8-2.503. The court rejected
appellant's "attemp[t] to overcome that defect by alleging
as conclusionary fact that each and every principal use and
each and every multiple accessory use is no longer possible
so that the property does have no value as zoned."
App. 115.
It concluded that, irrespective of the insufficiency
of appellant's factual allegations, monetary damages for inverse
condemnation are foreclosed by the California Supreme Court's
decision in 346 Agins v. City of Tiburon, 24 Cal.3d 266,
274-277, 157 Cal.Rptr. 372, 376-378, 598 P.2d 25, 29-31 (1979),
aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).
App. 116, 118. [FN4]
FN3.
In California, "those factual allegations of the complaint
which are properly pleaded are deemed admitted by defendant's
demurrer." Thompson v. County of Alameda, 27 Cal.3d 741,
746, 167 Cal.Rptr. 70, 72, 614 P.2d 728, 730 (1980).
"However," a demurrer "does not admit
contentions, deductions or conclusions of fact or law alleged
therein." Daar v. Yellow Cab Co., 67 Cal.2d 695, 713,
63 Cal.Rptr. 724, 737, 433 P.2d 732, 745 (1967) (citations
omitted). See, e.g., Serrano v. Priest, 5 Cal.3d 584, 591, 96 Cal.Rptr.
601, 605, 487 P.2d 1241, 1245 (1971);
Chicago Title Ins. Co. v. Great Western Financial Corp.,
69 Cal.2d 305, 327, 70 Cal.Rptr. 849, 863, 444 P.2d 481, 495
(1968); Sych v. Insurance Co. of North America, 173 Cal.App.3d 321,
326, 220 Cal.Rptr. 692, 695 (1985);
Read v. City of Lynwood, 173 Cal.App.3d 437, 442, 219
Cal.Rptr. 26, 28 (1985).
Thus, one intermediate California appellate court has
sustained a demurrer to a complaint alleging a regulatory
taking on jurisdictional grounds, notwithstanding an "allegation
in [appellants'] complaint that they 'have exhausted their
administrative remedies' ";
for "while a demurrer admits all material facts
which are properly pleaded, it does not admit conclusions
of fact or law alleged therein.
Appellants' conclusionary statement that they exhausted
their administrative remedies therefore cannot avail them."
Pan Pacific Properties, Inc. v. County of Santa Cruz,
81 Cal.App.3d 244, 251, 146 Cal.Rptr. 428, 432 (1978) (citation
omitted). Cf.
Hecton v. People ex rel. Dept. of Transportation, 58 Cal.App.3d
653, 657, 130 Cal.Rptr. 230, 232 (1976) (same;
allegations of taking and damage).
FN4.
We understand the Superior Court to have sustained the demurrer
both because the complaint failed properly to plead facts
amounting to a taking and because California law does not
provide a monetary remedy for a regulatory taking.
The Superior Court, after explaining these two reasons,
concluded simply that "[t]he complaint fails to state
a proper cause of action for inverse condemnation."
App. 116.
Although Justice WHITE's dissent treats the first reason
as dicta and the second as the actual basis of decision, see
post, at 2570, since the Superior Court did not rest its holding
on only one of its two stated reasons, it is appropriate to
treat them as alternative bases of decision.
The California Court of Appeal affirmed. It "accept[ed] as true all the properly pled factual
allegations of the complaint," id., at 126, and did "not
consider whether the complaint was barred by the failure to
exhaust administrative remedies or by res judicata,"
id., at 125-126. But it "f [ou]nd the decision in Agins to be controlling
herein," id., at 130:
"In
that case the [California] Supreme Court specifically and
clearly established, for policy reasons, a rule of law which
precludes a landowner from recovering in inverse condemnation
based upon land use regulation.
We emphasize that the Court did not hold that regulation
cannot amount to a taking without compensation, it simply
held that in such event the remedy is not inverse condemnation.
The remedy instead is an action to have the regulation
set aside as unconstitutional.
Plaintiff has filed a mandate action in the trial court
which is currently pending.
That is its proper remedy.
The claim for inverse condemnation cannot be maintained."
Id., at 130-131 (citation and footnote omitted).
In the alternative, the California Court
of Appeal determined that appellant would not be entitled
to monetary relief even if California law provided for this
remedy:
"In
any event, even if an inverse condemnation action were available
in a land use regulation situation, we would be constrained
to hold that plaintiff has failed to
347 state a cause of action.
Pared to their essence, the allegations are that plaintiff
purchased property for residential development, the property
is zoned for residential development, plaintiff submitted
an application for approval of development of the property
into 159 residential units, and, in part at the urging of
the City, the County denied approval of the application.
In these allegations plaintiff is not unlike the plaintiffs
in Agins ... [a case in which] both the California Supreme
Court and the United States Supreme Court held that the plaintiffs
had failed to allege facts which would establish an unconstitutional
taking of private property.
"The plaintiff's claim here must fail
for the same reasons the claims in Agins failed.
Here plaintiff applied for approval of a particular
and relatively intensive residential development and the application
was denied. The denial of that particular plan cannot be equated
with a refusal to permit any development, and plaintiff concedes
that the property is zoned for residential purposes in the
County general plan and zoning ordinance.
Land use planning is not an all-or-nothing proposition.
A governmental entity is not required to permit a landowner
to develop property to [the] full extent he might desire or
be charged with an unconstitutional taking of the property.
Here, as in Agins, the refusal of the defendants to permit
the intensive development desired by the landowner does not
preclude less intensive, but still valuable development.
Accordingly, the complaint fails to state a cause of
action." Id., at 132-133 (citation omitted). [FN5]
FN5.
In answer to appellant's 42 U.S.C. § 1983 claim, the California
Court of Appeal similarly held that a monetary judgment was
foreclosed by Agins, and that "[e]ven if a cause of action
for monetary damages could be stated under the Civil Rights
Act based upon the regulation of the use of property, the
allegations would be insufficient in this case:
"Plaintiff
seeks compensation because the County refused approval of
the intensive development it desires, but that refusal does
not mean that other, less intensive uses would also be denied.
Accordingly plaintiff has not alleged facts sufficient
to establish an uncompensated taking of its property."
App. 135.
348
The California Supreme Court denied
appellant's petition for hearing, and appellant perfected
an appeal to this Court.
Because of the importance of the question whether a
monetary remedy in inverse condemnation is constitutionally
required in appropriate cases involving regulatory takings,
we noted probable jurisdiction.
474 U.S. 917, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985).
On further consideration of our jurisdiction to hear
this appeal, aided by briefing and oral argument, we find
ourselves unable to address the merits of this question.
II
The regulatory takings claim advanced
by appellant has two components.
First, appellant must establish that the regulation
has in substance "taken" his property
[FN6] -- that is, that the regulation "goes too
far." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415,
43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). See Kaiser Aetna v. United States, 444 U.S. 164, 178,
100 S.Ct. 383, 392, 62 L.Ed.2d 332 (1979).
Second, appellant must demonstrate that any proffered
compensation is not "just."
FN6.
We accept for the purposes of deciding this case that any
taking was for a public purpose, as alleged in the complaint.
See id., at 50.
See also id., at 51, 60.
It follows from the nature of a regulatory
takings claim that an essential prerequisite to its assertion
is a final and authoritative determination of the type and
intensity of development legally permitted on the subject
property. A court cannot determine whether a regulation has
gone "too far" unless it knows how far the regulation
goes. As
Justice Holmes emphasized throughout his opinion for the Court
in Pennsylvania Coal Co. v. Mahon, 260 U.S., at 416, 43 S.Ct.,
at 160, "this is a question of degree -- and therefore
cannot be disposed of by general propositions."
Accord, id., at 413, 43 S.Ct., at 159.
To this day we have no "set formula to determine
where regulation ends and taking begins."
Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct.
987, 990, 8 L.Ed.2d 130
349 1962). Instead, we rely "as much [on] the exercise of judgment
as [on] the application of logic."
Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 326,
62 L.Ed.2d 210 (1979).
Our cases have accordingly "examined the 'taking'
question by engaging in essentially ad hoc, factual inquiries
that have identified several factors -- such as the economic
impact of the regulation, its interference with reasonable
investment-backed expectations, and the character of the governmental
action -- that have particular significance."
Kaiser Aetna v. United States, 444 U.S., at 175, 100
S.Ct., at 390.
See Penn Central Transportation Co. v. New York City,
438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978)
("ad hoc, factual inquiries");
United States v. Central Eureka Mining Co., 357 U.S.
155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958) ("question
properly turning upon the particular circumstances of each
case"). Until
a property owner has "obtained a final decision regarding
the application of the zoning ordinance and subdivision regulations
to its property," "it is impossible to tell whether
the land retain[s] any reasonable beneficial use or whether
[existing] expectation interests ha[ve] been destroyed."
Williamson Planning Comm'n v. Hamilton Bank, 473 U.S.
172, 186, 190, n. 11, 105 S.Ct. 3108, 3116, 3118, n. 11, 87
L.Ed.2d 126 (1985). As we explained last Term:
"[T]he
difficult problem [is] 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....
[R]esolution of that 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 expectation.
That effect cannot be measured until a final decision
is made as to how the regulations will be applied to respondent's
property." Id.,
at 199-200, 105 S.Ct., at 3123 (footnote omitted).
Accord, id., at 191, 105 S.Ct.,
at 3119.
350 For similar reasons, a court cannot determine
whether a municipality has failed to provide "just compensation"
until it knows what, if any, compensation the responsible
administrative body intends to provide.
See id., at 195, 105 S.Ct., at 3121 ("[T]he State's
action here is not 'complete' until the State fails to provide
adequate compensation for the taking" (footnote omitted)).
The 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. In Penn Central Transportation Co. v. New York City,
for example, we recognized
that the Landmarks Preservation Commission, the administrative
body primarily responsible for administering New York City's
Landmarks Preservation Law, had authority in appropriate circumstances
to authorize alterations, remit taxes, and transfer development
rights to ensure the landmark owner a reasonable return on
its property.
See 438 U.S., at 112-115, and n. 13, 98 S.Ct., at 2653-2655,
and n. 13. Because
the railroad had "not sought approval for a smaller structure"
than its proposed 50‑plus story office building, id.,
at 137, 98 S.Ct., at 2665;
see id., at 137, n. 34, 98 S.Ct., at 2666, n. 34, and
because its development rights in the airspace above its Grand
Central Station Terminal were transferable "to at least
eight parcels in the vicinity of the Terminal, one or two
of which ha[d] been found suitable for the construction of
a new office building," id., at 137, 98 S.Ct., at 2666,
we concluded that "the application of New York City's
Landmarks Law ha[d] not effected a 'taking' of [the railroad's]
property," id., at 138, 98 S.Ct., at 2666.
Whether the inquiry asks if a regulation has "gone
too far," or whether it seeks to determine if proffered
compensation is "just," no answer is possible until
a court knows what use, if any, may be made of the affected
property. [FN7]
FN7.
A property owner is of course not required to resort to piecemeal
litigation or otherwise unfair procedures in order to obtain
this determination.
See Williamson Planning Comm'n v. Hamilton Bank, 473
U.S., at 205-206, 105 S.Ct., at 3126 (STEVENS, J., concurring
in judgment); United
States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 1385,
91 L.Ed. 1789 (1947).
351
Our cases uniformly reflect an insistence
on knowing the nature and extent of permitted development
before adjudicating the constitutionality of the regulations
that purport to limit it.
Thus, in Agins v. Tiburon, 447 U.S. 255, 100 S.Ct.
2138, 65 L.Ed.2d 106 (1980), we held that zoning ordinances
which authorized the development of between one and five single-family
residences on appellants' 5-acre tract did not effect a taking
of their property on their face, and, because appellants had
not made application for any improvements to their property,
the constitutionality of any particular application of the
ordinances was not properly before us.
See id., at 260, 100 S.Ct., at 2141.
Similarly, in San Diego Gas & Electric Co. v. San
Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981),
we dismissed the appeal because it did not appear that the
city's rezoning and adoption of an open space plan had deprived
the utility of all beneficial use of its property.
See id., at 631-632, and n. 12, 101 S.Ct., at 1293-1294,
and n. 12. Because the California Court of Appeal had "not
decided whether any taking in fact ha[d] occurred, ... further
proceedings [were] necessary to resolve the federal question
whether there has been a taking at all."
Id., at 633, 101 S.Ct., at 1294.
As a consequence, the judgment was not final for purposes
of our jurisdiction under 28 U.S.C. § 1257.
Ibid. Most
recently, in Williamson Planning Comm'n v. Hamilton Bank,
we held that the developer's failure either to seek variances
that would have allowed it to develop the property in accordance
with its proposed plat, or to avail itself of an available
and facially adequate state procedure by which it might obtain
"just compensation," meant that its regulatory taking
claim was premature.
Here,
in comparison to the situations of the property owners in
the three preceding cases, appellant has submitted one subdivision
proposal and has received the Board's response thereto.
Nevertheless, appellant still has yet to receive the
Board's "final, definitive position regarding how it
will apply the regulations at issue to the particular land
in question." Williamson Planning Comm'n v. Hamilton Bank, 473 U.S.,
at 191, 105 S.Ct., at 3119.
In Agins, San Diego Gas & Electric, and Williamson
352 Planning Comm'n, we declined
to reach the question whether the Constitution requires a
monetary remedy to redress some regulatory takings because
the records in those cases left us uncertain whether the property
at issue had in fact been taken. Likewise, in this case, the
holdings of both courts below leave open the possibility that
some development will be permitted, [FN8] and thus again leave
us in doubt regarding 353 the antecedent question whether appellant's
property has been taken. [FN9] The judgment is therefore
FN8.
Appellant's current complaint -- as authoritatively construed
by the California Court of Appeal -- alleged the denial of
only one intense type of residential development.
Appellant does not contend that only improvements along
the lines of its 159-home subdivision plan would avert a regulatory
taking. Rather,
the complaint alleged that appellant was deprived of all beneficial
use of its property.
See App. 51, 60, 65. The California Court of Appeal,
whose opinion on matters of local law and local pleading we
must respect, cf. Agins v. Tiburon, 447 U.S. 255, 259-260,
n. 5, 100 S.Ct. 2138, 2140-2141, n. 5, 65 L.Ed.2d 106 (1980),
apparently rejected what the Superior Court labeled a "conclusionary"
allegation of futility, and explained that appellant could
seek an administrative application of the Yolo County General
Plan and Zoning Ordinances to its property which, for aught
that appears, would allow development to proceed. Justice
WHITE's dissent reluctantly concludes that our understanding
of the Court of Appeal's decision is "plausible"
and "sensible," but insists that the Court of Appeal's
decision is "most properly read as taking as true all
of the allegations in the complaint, including the allegations
of futility, and as rejecting those allegations as insufficient
as a matter of substantive takings law."
Post, at 2574.
We disagree. Both state courts upheld appellees' demurrer on the ground
that not all development had been foreclosed.
Thus, the Superior Court apparently accepted appellant's
submission that its property was restricted to agricultural
use but held that, even so, valuable use might still be made
of the land. The
Court of Appeal was unwilling to concede even this much:
it noted that appellant's property was zoned residential
and held that valuable residential development was open to
it. These
holdings that there is no total prohibition against the productive
use of appellant's land cannot possibly be reconciled with
the allegations in the complaint that "any beneficial
use" is precluded, App. 46, and that future applications
would be futile, id., at 58.
In view of the fact that these allegations were necessarily
rejected by the state courts, and that the parties' briefs
disclose a permissible basis for this disposition in settled
California demurrer law, see n. 3, supra;
see also Brief for Respondents in 3 Civil 22306 (Cal.Ct.App.,
Third App.Dist., July 10, 1984), pp. 25, 27; Memorandum of
Points and Authorities in Support of Demurrer to Fourth Amended
Complaint in No. 36655 (Cal.Super.Ct., Yolo County, Dec. 18,
1981), 4 Clerk's Tr., pp. 888-889, 912, n. 2, 914, it does
not matter that the state courts neglected to "expressly
disapprove" the deficient allegations or to detail the
particular reasons why, see post, at 2571. Remarkably, the
dissent implies that the Court of Appeal accepted the complaint's
allegations that local regulations denied appellant all beneficial
use of its property and that further regulatory proceedings
would be fruitless, but nonetheless required it to file further
"useless" applications to state a taking claim.
Ibid. Whatever
purpose such a requirement might serve, futile reapplications
are not contemplated by the Court of Appeal.
To begin with, this requirement is not, as the dissent
maintains, suggested by the Court of Appeal's reliance on
the decisions of the California Supreme Court and of this
Court in Agins.
See App. 132.
To the contrary, the Court of Appeal relied on the
decisions in Agins to illustrate that the property owners
there -- as here -- had not "attempt[ed] to obtain approval
to ... develop the land" in accordance with applicable
zoning regulations and for this reason had "failed to
allege facts which would establish an unconstitutional taking
of private property." Id., at 132-133.
See 447 U.S., at 259-263, 100 S.Ct., at 2140-2142;
24 Cal.3d 266, 277, 157 Cal.Rptr. 372, 378, 598 P.2d
25, 31 (1979).
The implication is not that future applications would
be futile, but that a meaningful application has not yet been
made. The
dissent's supposition that the Court of Appeal accepted the
allegations of taking and futility is further contradicted
by the court's express denial that submission of a less intensive
application would be futile:
"the refusal of the [appellees] to permit the
intensive development desired by the landowner does not preclude
less intensive, but still valuable development."
App. 133.
FN9.
Appellant is thus in the same position Mr. and Mrs. Agins
would have occupied if they had requested and been denied
the opportunity to build five Victorian mansions for their
single-family residences, or if San Diego Gas & Electric
Co. had asked and been denied the option of building a nuclear
powerplant. Rejection
of exceedingly grandiose development plans does not logically
imply that less ambitious plans will receive similarly unfavorable
reviews. In
this case, of course, we have statements from both courts
below dispelling any doubt on this point.
Affirmed.
Justice WHITE, with whom THE CHIEF JUSTICE
joins and with whom Justice POWELL and Justice REHNQUIST join
as to Parts I, II, and III, dissenting.
The Court acknowledges that we noted probable
jurisdiction in this case
"[b]ecause of the importance of the question
354 whether a monetary remedy in
inverse condemnation is constitutionally required in appropriate
cases involving regulatory takings," ante, at 2565 2566,
but avoids this issue by holding that the antecedent question
-- whether appellant adequately stated a takings claim --
should be answered in the negative.
I disagree. The factual allegations that we must consider, when the
opinion below is correctly read, do state a takings claim
and therefore present the remedial question that we have thrice
before sought to resolve.
See Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985);
San Diego Gas & Electric Co. v. San Diego, 450
U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981);
Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65
L.Ed.2d 106 (1980).
I
The Court recognizes that "the complaint
alleged that appellant was deprived of all beneficial use
of its property," ante, at 2568, n. 8, but concludes:
"The
California Court of Appeal, whose opinion on matters of local
law and local pleading we must respect, cf. Agins v. Tiburon,
447 U.S. 255, 259-260, n. 5, 100 S.Ct. 2138, 2140-2141, n.
5, 65 L.Ed.2d 106 (1980), apparently rejected what the Superior
Court labeled a 'conclusionary' allegation of futility, and
explained that appellant could seek an administrative application
of the Yolo County General Plan and Zoning Ordinances to its
property which, for aught that appears, would allow development
to proceed." Ibid.
The Court thus ignores the allegations
in the complaint that the effect of the county's denial of
appellant's subdivision application in conjunction with the
reasons behind that denial and other actions taken by the
appellees has been to deprive the appellant of any use of
its property "which is not (a) economically infeasible,
(b) prohibited by law, or (c) prevented by actions taken by
[the appellees]."
Fourth Amended Complaint, App. 46.
The Court also disregards appellant's allegation that
the actions of the appellees demonstrate "That any application
for a zone change, variance or other
355 relief would be futile."
Id., at 58. Instead, the Court focuses on the denial of the particular
subdivision application alone.
In my view, the Court does not fairly
read the record and the opinion below.
Appellant's initial complaint filed in Superior Court
alleged that although the property was zoned for residential
use by the county it was designated an "Agricultural
Preserve or Reserve" by the city.
The complaint further alleged that even though the
property lay in the county outside of the city's boundaries,
the county implemented city policy relegating the land to
agricultural uses.
See Complaint of Oct. 13, 1977, pp. 9-12. Finally, the complaint asserted that the property was
agriculturally impaired and could not economically be used
for agricultural purposes.
See id., at 5, 16.
In sustaining the appellees' demurrer
to this complaint, the Superior Court accepted as true the
allegation that the property had effectively been rezoned
agricultural but noted that there was no allegation that the
property could not be used for a variety of nonagricultural
purposes explicitly allowed in agricultural zones under the
county and city codes.
See Order of Mar. 30, 1978, in No. 36655 (Cal.Super.Ct.,
Yolo County) pp. 6-8.
The conclusion was that "[t]he failure to allege
the property in question useless for other permitted purposes
in an agricultural zone over and above an agricultural use
renders the [inverse condemnation cause of action] demurrable."
Id., at 8.
In the Fourth Amended Complaint, the complaint
that formed the basis for the judgment below, appellant responded
to this earlier ruling by specifically alleging that the property
was not suitable for the other uses permitted in an agricultural
zone and by asserting facts in support of this allegation.
See App. 52-58.
The Superior Court, however, indicated that it found
these allegations "conclusionary," although it did
not rely on this determination in sustaining the demurrer
to the complaint, relying instead on the California Supreme
Court's general ruling in Agins v. City of Tiburon,
356
24 Cal.3d 266, 272-277, 157 Cal.Rptr.
372, 375-378, 598 P.2d 25, 28-31 (1979), aff'd on other grounds,
447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), that
no inverse condemnation action may be brought as a result
of a land use regulation. [FN1]
The crucial fact here is that the Superior Court denominated
"conclusionary" only those allegations in the complaint
that rejected the possibility of feasible nonagricultural
uses of the property that would be consistent with agricultural
zoning. It
did not categorize as "conclusionary" appellant's
allegations that all economically beneficial residential uses
were foreclosed by the appellees' actions.
FN1.
The Superior Court also sustained the demurrer on the ground
that appellant had failed to exhaust administrative and judicial
remedies; that the county's denial of appellant's subdivision
application was res judicata not subject to collateral attack
in the Superior Court;
and that
no taking in the form of actual "invasion or appropriation
of a cognizably valuable property right" had been alleged.
App. 111, 116.
In
reviewing the Superior Court's ruling on the demurrer to the
Fourth Amended Complaint, the California Court of Appeal first
noted that it would not consider whether the complaint was
barred by the failure to exhaust administrative remedies or
by res judicata.
App. 125-126.
It then summarized the allegations of the complaint,
including the allegations that the property was not suitable
for agricultural use or any of the other uses permitted in
the county code and that it was suitable for residential use
but that the county and city had acted to prevent this use
entirely. Id.,
at 127-129. The Court of Appeal also noted that appellant had alleged
that "[a]ny application for a zone change, variance or
other relief would be futile."
Id., at 129.
Nowhere did the court state that as a matter of California
demurrer law it was rejecting any of these allegations as
not properly pleaded.
And nowhere did it refer to the Superior Court's statement
that the allegations as to the infeasibility of the nonagricultural
uses that would be consistent with agricultural zoning might
not be properly pleaded.
357
Having recited all of these allegations
without indicating that it was rejecting any of them, the
Court of Appeal first held that no cause of action was stated
in inverse condemnation.
This holding, it noted, was compelled by the California
Supreme Court's ruling in Agins that there is no such remedy
for takings alleged to result from land use regulation.
Id., at 130-132. See Agins, 24 Cal.3d, at 272-277,
157 Cal.Rptr., at 376-378, 598 P.2d, at 28-31.
In
the alternative, however, the Court of Appeal found that even
if such a cause of action were available, appellant had not
stated a takings claim.
The court concluded that "[p]ared to their essence,
the allegations are that [appellant] purchased property for
residential development, the property is zoned for residential
development, [appellant] submitted an application for approval
of development of the property into 159 residential units,
and, in part at the urging of the City, the County denied
approval of the application." App. 132.
The court then observed that this situation was "not
unlike" that in Agins, in which a zoning ordinance that
restricted a landowner of five acres to building a maximum
of five residences on his property was found not to constitute
a taking since on its face the ordinance still allowed that
level of development, which was a reasonable use of the property.
See Agins, 447 U.S., at 262-263, 100 S.Ct., at 2142-2143;
Agins, 24 Cal.3d, at 277, 157 Cal.Rptr., at 378, 598 P.2d,
at 31. Citing
Agins, the Court of Appeal then determined that appellant
had not stated a takings cause of action because appellees'
refusal to allow the intensive development requested by appellant
"does not preclude less intensive, but still valuable
development."
App. 133.
In
my view, given the absence of any expression of disapproval
by the Court of Appeal of any of the appellant's allegations
summarized in its opinion and given the fact that the Superior
Court had not labeled appellant's allegations of futility
"conclusionary," there is no reason to read into
this last statement by the
358 Court of Appeal a state‑law
ruling that the allegations of futility were not well pleaded.
Instead, the Court of Appeal's focus on what it termed
the essence of appellant's complaint together with its conclusion
that with respect to these essential allegations this case
was analytically the same as Agins imply that it believed
that as a matter of federal takings law certain allegations
controlled in terms of determining if a takings claim had
been stated. Specifically,
in concluding that the allegations of futility were not material
and in determining that under Agins further application must
be made before a takings claim could be stated, the Court
of Appeal held that no takings cause of action had been stated
because no reapplication had been made, even if further application
would be useless.
II
Whether
a regulatory taking has occurred is an inquiry that cannot
be completed until a final decision is made as to how the
allegedly confiscatory regulations apply to the pertinent
property. Williamson
County, Regional Planning Comm'n, 473 U.S., at 190-191, 105
S.Ct., at 3118-3119.
Thus, in Penn Central Transportation Co. v. New York
City, 438 U.S. 104, 136-137, 98 S.Ct. 2646, 2665-2666, 57
L.Ed.2d 631 (1978), and in Agins, supra, 447 U.S., at 262-263,
100 S.Ct., at 2142-2143, we considered for takings purposes
only the actual regulatory decision that had been made by
the governmental decisionmaker;
we declined to speculate as to further restrictions
that might be imposed.
In Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U.S. 264, 293-297, 101 S.Ct. 2352, 2369-2371,
69 L.Ed.2d 1 (1981), we refused to consider a takings claim
based on general regulatory provisions that had not yet been
applied to specific properties and that were susceptible of
administrative exemption.
Most recently, in Williamson County, Regional Planning
Comm'n, the Court determined that the denial of a particular
use for a property did not constitute a final decision where
variance procedures were available that "[left] open
the possibility that [the landowner] may develop the subdivision
according to its plat after obtaining the variances."
473 U.S., at 193-194, 105 S.Ct., at 3120.
359
These holdings recognize that a regulatory
takings determination is closely tied to the facts of a particular
case and that there is often an ongoing process by which the
relevant regulatory decisions are made. Given these characteristics of a regulatory taking, the
final decision requirement is necessary to ensure that "the
initial decisionmaker has arrived at a definitive position
on the issue that inflicts an actual, concrete injury."
Id., at 193, 105 S.Ct., at 3120.
Nothing in our cases, however, suggests that the decisionmaker's
definitive position may be determined only from explicit denials
of property‑owner applications for development.
Nor do these cases suggest that repeated applications
and denials are necessary to pinpoint that position.
Moreover, I see no reason for importing
such a requirement into the "final decision" analysis.
A decisionmaker's definitive position may sometimes
be determined by factors other than its actual decision on
the issue in question. For example, if a landowner applies
to develop its land in a relatively intensive manner that
is consistent with the applicable zoning requirements and
if the governmental body denies that application, explaining
that all development will be barred under its interpretation
of the zoning ordinance, I would find that a final decision
barring all development has been made -- even though the landowner
did not apply for a less intensive development. Although a landowner must pursue reasonably available
avenues that might allow relief, it need not, I believe, take
patently fruitless measures.
The Court of Appeal's reliance on Agins in
this case was therefore misplaced.
Appellant alleged not simply that its application had
been denied but that the overall effect of (1) that denial,
(2) the reasons given for the denial, and (3) other actions
taken by appellees to prevent appellant from ever being able
to meet county development requirements was that appellant's
property had been taken.
When the Court of Appeal purported to reduce appellant's
claim to its essence, it ignored a critical distinction between
Agins, in
360 which there was no indication
that upon application the property owner would not be allowed
to develop his property in some economically beneficial manner,
and the factual situation here, in which further application
would allegedly be futile.
In this case, I believe that appellant sufficiently
alleged a final decision denying it all reasonable economically
beneficial use of its property. [FN2]
FN2.
I emphasize that the futility of further application would
have to be proved at trial for appellant to prevail here on
the merits. I
address only the question whether appellant's allegations
of futility are sufficient support for assuming that a final
decision has been made.
III
Assuming that appellant adequately alleged
a final decision, the next question is whether a takings cause
of action was stated by the allegations in the complaint.
Discerning the answer to this question involves two
separate inquiries:
Whether a land use regulation restricting the use of
property may ever amount to a taking and, if the answer to
this first inquiry is affirmative, whether the allegations
here are sufficient to state a takings claim.
As
to the first question, our cases have long indicated that
police-power regulations may rise to the level of a taking
if the restrictions they impose are sufficiently severe.
See, e.g., Agins, 447 U.S., at 260, 100 S.Ct., at 2141;
PruneYard Shopping Center v. Robins, 447 U.S. 74, 83,
100 S.Ct. 2035, 2041, 64 L.Ed.2d 741 (1980);
Kaiser Aetna v. United States, 444 U.S. 164, 174-175,
100 S.Ct. 383, 389-390, 62 L.Ed.2d 332 (1979);
Andrus v. Allard, 444 U.S. 51, 65-66, 100 S.Ct. 318,
326-327, 62 L.Ed.2d 210 (1979);
Penn Central, supra, 438 U.S., at 130-131, 138, n.
36, 98 S.Ct., at 2662, 2663-2666, n. 36;
United States v. Central Eureka Mining Co., 357 U.S.
155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958);
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-416,
43 S.Ct. 158, 160, 67 L.Ed. 322 (1922).
Nevertheless, the California Supreme Court in Agins
concluded:
"[A] landowner alleging that a zoning ordinance
has deprived him of substantially all use of his land may
attempt through declaratory relief or mandamus to invalidate
the ordinance as excessive regulation in violation of the
Fifth Amendment to the United States Constitution
361 He may not, however,
elect to sue in inverse condemnation and thereby transmute
an excessive use of the police power into a lawful taking
for which compensation in eminent domain must be paid."
24 Cal.3d, at 273, 157 Cal.Rptr., at 375, 598 P.2d
at 28. [FN3]
FN3.
Although the California Supreme Court's ruling in Agins rests
on the rationale that excessive land use regulation simply
cannot constitute a lawful taking, the Court of Appeal in
this case seemed to proceed on the assumption that such regulation
could constitute a taking but that no inverse condemnation
remedy for such a taking would be available.
See App. 131.
My discussion here follows the reasoning given by the
California Supreme Court in Agins rather than the somewhat
inexact summary of that reasoning given by the Court of Appeal
below.
In addition to being inconsistent
with this Court's statements, this view, as Justice BRENNAN
explained in his dissent in San Diego Gas, ignores the fact
that
"[p]olice
power regulations such as zoning ordinances and other land-use
restrictions can destroy the use and enjoyment of property
in order to promote the public good just as effectively as
formal condemnation or physical invasion of property.
From the property owner's point of view, it may matter
little whether his land is condemned or flooded, or whether
it is restricted by regulation to use in its natural state,
if the effect in both cases is to deprive him of all beneficial
use of it. From
the government's point of view, the benefits flowing to the
public from preservation of open space through regulation
may be equally great as from creating a wildlife refuge through
formal condemnation or increasing electricity production through
a dam project that floods private property....
It is only logical, then, that government action other
than acquisition of title, occupancy, or physical invasion
can be a 'taking,' and therefore a de facto exercise of the
power of eminent domain, where the effects completely deprive
the owner of all or most
362
of his interest in the property."
450 U.S., at 652-653, 101 S.Ct., at 1304-1305 (citations
and footnotes omitted).
I agree that land use restrictions
may constitute a taking under the Constitution.
This resolution of the general question
brings me to the more specific question whether the allegations
in the complaint here were sufficient to state a takings claim.
Here, appellant alleged the existence of a final decision
denying it all economically beneficial use of its property.
It also alleged that it had paid "good and valuable
consideration," App. 43, for the property. Factual allegations
of interference with reasonable investment-backed expectations
and denial of all economically feasible use of the property
are certainly sufficient allegations of a regulatory taking
to state a cause of action.
See, e.g., Penn Central, 438 U.S., at 136-138, 98 S.Ct.,
at 2665-2666.
Consequently, I would hold that appellant adequately
alleged a taking.
IV
The final question presented is whether
a State can limit to declaratory and injunctive relief the
remedies available to a person whose property has been taken
by regulation or whether the State must pay compensation for
the interim period between the time that the government first
"took" the property and the time that the "taking"
is rescinded by amendment of the regulation. [FN4] On this
question, I am again in substantial agreement with Justice
BRENNAN's discussion in San Diego Gas.
See 450 U.S., at 653-660, 101 S.Ct., at 1304- 1308.
Even where a property owner is deprived of its property
only temporarily, if that deprivation amounts to a taking
the Constitution requires
363 that just compensation be paid.
If the governmental body that has taken the property
decides to rescind the taking by amending the regulation,
that does not reverse the fact that the property owner has
been deprived of its property in the interim. "[I]t is only fair that the public bear the cost of benefits
received during the interim period between application of
the regulation and the government entity's rescission of it."
Id., at 656-657, 101 S.Ct., at 1306-1307.
Thus, just compensation must be available for the period
between the time of the final decision taking the property
and the time that that decision is rescinded.
FN4.
I assume here that the normal action by the governmental entity
following a determination that a particular regulation constitutes
a taking will be to rescind the regulation.
I believe that this is a permissible course of action,
limiting liability for the taking to the interim period. See
San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621,
658, 101 S.Ct. 1287, 1307, 67 L.Ed.2d 551 (1981) (BRENNAN,
J., dissenting).
Of course, the governmental entity could actually condemn
the property and pay permanent compensation for it.
I
recognize that such a constitutional rule admits of problems
of administration that are by no means insignificant.
Aside from the problems that the Court has already
addressed in some measure regarding the determination of when
a taking shall be deemed to have occurred, there are questions
of valuation and of procedure. As to the latter, the Constitution requires no particular
procedures, although as the Court today notes, "[a] property
owner is of course not required to resort to piecemeal litigation
or otherwise unfair procedures in order to obtain this determination."
Ante, at 2567, n. 7.
As to the former, the issue of what constitutes just
compensation in this context is a particularly meaty one,
which merits substantial reflection and analysis.
Nevertheless, these unsettled questions should not
deter us from acting to protect constitutional requirements
in this type of case.
Consequently, I would vacate the judgment below and
remand for further proceedings not inconsistent with the views
I have expressed.
V
In
sum, I believe that the Court of Appeal's decision is most
properly read as taking as true all of the allegations in
the complaint, including the allegations of futility, and
as rejecting those allegations as insufficient as a matter
of substantive takings law.
At the very least, the Court's reading of the opinion
below, however plausible, is not the only sensible
364 reading of that opinion.
Given this arguable ambiguity, I would not, as the
Court does, withdraw from appellant all chance of relief at
this stage. That
is, if the Court of Appeal in fact did reach its judgment
by the reasoning I have summarized rather than as the Court
hypothesizes, appellant should not be precluded from seeking
relief on the facts currently alleged in the complaint. I
would at least vacate the judgment below and remand for explanation
by the Court of Appeal as to the precise basis for its judgment.
Justice
REHNQUIST, with whom Justice POWELL joins, dissenting.
I
agree with Justice WHITE that the Court of Appeal's opinion
is best read as rejecting appellant's allegations as a matter
of substantive takings law;
that appellant sufficiently alleged a final decision
denying it all beneficial use of its property;
that a land use regulation restricting the use of property
may amount to a taking;
and that the allegations here are sufficient to state
a takings claim.
Accordingly, I join Parts I, II, and III of his dissenting
opinion. As Justice WHITE recognizes in Part IV of his opinion,
the questions surrounding what compensation, if any, is due
a property owner in the context of "interim" takings
are multifaceted and difficult.
I would not reach these questions without first permitting
the courts below to address them in light of the fact that
appellant has sufficiently alleged a taking.
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