Amicus Curiae Brief — Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City

| Otiice Susreme Court, US,

9 ) *{LED “|

NOV 15 1984

No. 84-4

ov : me'.. STOYVAS,

In the Supreme Court of the United States ~~

OCTOBER TERM, 1984

WILLIAMSON COUNTY REGIONAL PLANNING

COMMISSION, ET AL., PETITIONERS

v.

HAMILTON BANK OF JOHNSON CITY

ON WRIT OF C: RTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

REx E. LEE

Solicitor General

F, HENRY HABICHT II

Assistant Attorney General

Louis F. CLAIBORNE

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

DAVID C. SHILTON

N B. FIRESTONE

Department of Justice

Washington, D.C. 205380

(202) 633-2217

at

(>

QUESTIONS PRESENTED

The United States will address the following questions:

1. Whether, under this Court’s decision in Parratt v.

Taylor, 451 U.S. 527 (1981), respondent’s claim that its

property was taken without just compensation in viola-

tion of the Fifth and Fourteenth Amendments should

have been dismissed because respondent did not pursue

procedures under state law to obtain compensation or

show that those procedures are inadequate.

2. Whether respondent’s claim of an unconstitutional

taking, based on the disapproval by petitioner Planning

Commission of a particular preliminary plat for develop-

ment of a residential subdivision, was ripe for adjudica-

tion, despite respondent’s failure to revise its proposal in

li,sht of the Commission’s concerns, to request a variance,

or to seek judicial review of the disapproval in state court.

3. Whether, if the taking claim was ripe for adjudica-

tion, the Commission’s disapproval of the particular pre-

liminary plat constituted a taking, even though the zoning

ordinance, subdivision regulations, and other factors re-

lied upon by the Commission advanced legitimate state

interests and did not foreclose substantial development of

the tract.

4. Whether, in light of the district court’s holding that

the Commission’s actions were not authorized by state

law, the Commission’s disapproval of the preliminary plat

gives rise to a claim for just compensation.

5. Whether, if the Commission’s application of the cur-

rent zoning ordinance and subdivision regulations to re-

spondent’s land on a permanent basis would have consti-

tuted a taking, the temporary application of those provi-

sions until the district court enjoined the Commission

from relying upon them in considering future proposals

by respondent also must be regarded as a taking, that

requires the payment of compensation.

(I)

TABLE OF CONTENTS

Page

I, GE GE TI TI enncccsccccsncncrrcccccncccescncerccccnce 1

a anne ceelanntseteennnbietnensananneiaiianiien 1

Introduction and summary of argument ........................ 10

Argument:

A. The Commission’s actions did not ripen into a

final disapproval by the State that could con-

stitute a “taking” of private property -.......... 12

B. The Planning Commission’s actions in 1980,

even if they had not been modified by the dis-

trict court’s estoppel ruling, did not effect a

“taking” of respondent’s property -................ 18

C. The award of damages for a “temporary tak-

ES TD II encecccentccenccstctecesemiccnsenees 27

Ne lant idaiat na ideicaiienailialale 30

TABLE OF AUTHORITIES

Cases:

Agins Vv. City of Tiburon, 447 U.S. 255 -................ passim

Andrus V. Allard, 444 U.S. €1 -2..2.2..22.22.2.2.2.....e.cceees 24, 29

Armstrong Vv. United States, 364 U.S. 40 —........... _ 24, 30

Brooks v. City of Memphis, 192 Tenn. 371, 241

S.W.z:' 432 Se i6

Chicago, B. & Q.R.R. v. Chicago, 166 U.S. 226........ 10

City of Eastlake v. Forest City Enterprises, 426

RU Withee aseeciaaidetst odes Gaetan iehiekicbabeipmbedinenmennions 16, 21, 24

Dames & Moore v. Regan, 453 U.S. 654 _......000000.... 15, 16

Danforth v. United States, 308 U.S. 271 ................ 29

Davis Vv. Metropolitan Gov’t, 620 S.W.2d 532........ 11

Deltona Corp. v. United States, 657 F.2d 1184........ 21

Dohany V. Rogers, 281 U.S. 362 ......00.0022.0. 2... 10

EPA vy. National Crushed Stone Ass’n, 449 U.S.

A SN ON 23

Euclid v. Ambler Realty Co., 272 U.S. 365 -........... 20

Goldblatt v. Hempstead, 369 U.S. 590 _...0000000 0. 19

(IIT)

IV

Cases—Continued : Page

Hadacheck v. Los Angeles, 239 U.S. 394 -............... 20-21

Hernandez v. City of Lafayette, 643 F.2d 1188,

cert. denied, 455 U.S. 907 -.............. aie aaa 15

Hodel v. Indiana, 452 U.S. 314 ......................-.---00.-- 20

Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264 _............. 14, 15, 16, 17, 19, 20, 22, 24

Hooe v. United States, 218 U.S. 322 -.................... 16, 28

Hudson v. Palmer, No. 82-1630 (July 3, 1984) ........ 10

Hurley v. Kincaid, 285 U.S. 96 ........-......2-.2.-...-----+-- 10

James V. Valtierra, 402 U.S. 187 ..........................-. 24

Kaiser Aetna Vv. United States, 444 U.S. 164..19, 24, 25, 26

Kirby Forest Industries v. United States, No. 82-

. - 9 SS SSR erEeoR 22, 24, 29

Land Associates v. Metropolitan Airport Author-

ity, 547 F. Supp. 1128, aff’d, 712 F.2d 248... 11, 16

Loretto v. Teleprompter Manhattan CATV Corp.,

I is asalastiins 19, 29

Miller v. Sehoene, 276 U.S. 272 ......................--....-. 25

Park Avenue Towers Associates v. City of New

York, No. 84-7128 (2d Cir. Oct. 12, 1984)... 24

Parratt v. Taylor, 451 U.S. 627 ......................... alae 10

Paul v. Davis, 424 U.S. GOS .................................... 10

Penn Central Transportation Co. v. New York

- © i ) & Fee 19, 20, 21, 23, 24, 25

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393........ 20, 24,

25, 29

Pension Benefit Guaranty Corp. Vv. R.A. Gray &

Co., No. 83-245 (June 18, 1984) -.........20000220.. 27

Regional Rail Reorganization Act Cases, 419 U.S.

TIED sccsnsineinesaiiisndsetaidapasaneanantaicsaaniniameniemiaiamiddiea dinates 16

Ruckelshaus v. Monsanto Co., No. 83-196 (June

RST ers 10, 15, 16, 18, 24, 25, 26

San Diego Gas & Electric Co. v. San Diego, 450

Oe ID scibeisiciticiclta a ih Saale 27, 28

Suess Builders Co. v. City of Beaverton, 656 P.2d

CSRS Se Sr eck en St nn Ro Pace A eRe 11

United States v. Causby, 328 U.S. 256 00000 oo... 19

United States v. General Motors Corp., 323 U.S.

IR IANO iE Neo LR Ra ee A Mae EBONY ee 25

United States v. S.A. Empresa De Viacao Aerea

Rio Grandense (Varig Airlines), No. 82-1349

ne nae NN cee 14, 28

Cases—Continued : Page

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

I I i lemetmbinie 25

Weinberger v. Salfi, 422 U.S. 749 ....................-...---+ 14

William C. Haas & Co. v. San Francisco, 605 F.2d

1117, cert. denied, 445 U.S. 928 —....00.000220..... 24

Yearsley v. Ross Construction Co., 309 U.S. 18... 16

Constitution and statutes:

U.S. Const. :

TE eee ee yee ree 10, 17, 27

RTA cee ae Re aSP ee AE ee NIT 7, 10, 27

I I ects 10

Administrative Procedure Act, 5 U.S.C. 701 et

TT. aisnitteielen, ‘ectatiatinceniaandiciinaneaaiindindaiianmibidinennipeene 17

Clean Water Act of 1977 § 404, 33 U.S.C. 1344... 21

Surface Mining Control and Reclamation Act of

ls te es Ie Oe I ccieicreececcnscctrecrereeres 21

fe Rs fe. | eee 17

EI ES a a 28

a eecieadeiualicbld 7,11

Tenn. Code Ann. (1980) :

rel TS AR Rn, a 2

EET TT aE TT 2

ai irises ill 2, 26

(Eats cea we MOE a

Ea ee ae 2

TE a ee a eS 2

a i os 2,14

TET LEENA aD eT CE BOO oe OD 16

I a ta tl 11

Miscellaneous:

48 Fed. Reg. 41313-41314 (19838) 0000 oo... 17

Freilich, Solving the “Taking” Equation: Making

the Whole Equal the Sum of Its Parts, 15 Urb.

a lie 15

Op. Att’y Gen. of Tenn., No. 80-581 (Dec. 1,

1980)

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-4

WILLIAMSON COUNTY REGIONAL PLANNING

COMMISSION, Ei AL., PETITIONERS

Vv.

HAMILTON BANK OF JOHNSON CITY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case raises important questions concerning the

circumstances in which the government may be required

to pay compensation for the enforcement of a regulatory

measure that is held to constitute a “taking” of property.

It therefore may have an impact on the administration of

federal regulatory programs affecting land use. See note

12, infra.

STATEMENT

1.a. Under the laws of Tennessee, the legislative body

of a county is authorized to adopt a zoning ordinance to

regulate the location and dimension of buildings, the

density and distribution of population, and the uses o7

buildings and land for “trade, industry, residence, rec-

reation, agriculture, forestry, soil conservation, water

supply conservation or other purposes.” Tenn. Code Ann.

(1)

2

§ 13-7-101 (1980). Such an ordinance must be designed

“for the purpose of promoting the health, safety, morals,

convenience, order, prosperity and welfare of the present

and future inhabitants of the state and of its counties”

(id. § 18-7-103). The board of zoning appeals may grant

a variance where strict application of the ordinance to a

parcel of land having unusual topographical or other

conditions would “result in peculiar and exceptional prac-

tical difficulties” or would cause “exceptional and undue

hardship upon the owner,” if such relief may be granted

“without substantial detriment to the public good and

without substantially impairing the intent and purpose of

the zone plan and oning ordinances.” Jd. § 13-7-109.

b. Tennessee law also provides for the establishment of

regional planning commissions, which are charged with

formulating comprehensive development plans. Tenn.

Code Ann. §§ 13-1-106, 13-3-401 et seg. (1980). Peti-

tioner Williamson County Regional Planning Commission

is one such commission. No plat of a subdivision of land

within a county may be recorded until it has been ap-

proved by the responsible planning commission. Jd. § 13-

3-402. In exercising that responsibility, the planning com-

mission must provide for the “harmonious development of

the region and its environs,” the “coordination of roads

within the subdivided plat,” “adequate open spaces,” “ade-

quate transportation, weter, drainage and sanitary facili-

ties,’ “avoidance of populztion ecngestion,” anc avoid-

ance of such “scattered or »remature subdivision : f land

as would involve danger or injury to health, safety or

prosperity” (id. § 13-3-403). The commission also may

specify the manner in which roads must be graded or

improved and utility and other facilities must be installed

“as a condition precedent to the approval of the plat.”

Ibid.

In 1973, when the residential subdivision at issue in

this case was first proposed, the Williamson Count Re-

gional Planning Commission followed a two-step proce-

dure for review and approval of a subdivision plat (C.A.

App. 870). The initial step involved the preparation and

submission of a “preliminary sketch plat” showing, inter

3

alia, the current zoning classification, the contour of the

land, existing and proposed roads, and property lines,

buildings, utility lines, and open space (id. at 871). If

the preliminary plat was approved, the developer then

could proceed to the preparation of the more formal and

detailed final plat (id. at 870, 872). The regulations ex-

pressly provided, however, that the approval of a prelimi-

nary plat “will not constitute acceptance of the final

plat” and that approval of a preliminary plat wouid lapse

unless a final plat based on it was submitted within one

year or the Commission granted an extension (id. at

872).

In order to be approved, the plat was required to con-

form to the substantive terms of the zoning ordinance

and the subdivision regulations governing such features

as the location, width and grade of streets; arrangement

and minimum size of lots; building setbacks; and suit-

ability of the land for development (C.A. App. 876-893,

897). However, the Commission was authorized to grant

a variance where “unnecessary hardship” otherwise would

result or where, “because of topographical or other condi-

tions peculiar to the site,” a departure could be made

without destroying the intent of the regulations (id. at

887).

2.a. In 1973, respondent’s predecessor in interest—the

developer of the residential subdivision known as Temple

Hills Country Club Estates—submitted to the Williamson

County Regional Planning Commission a preliminary plat

for “cluster” residential development of its tract. Then,

as now, the zoning ordinance for the County permitted

such “clusiex”’ development, under which houses could be

built on relatively small lots if other land in the tract was

kept as open space (Pet. App. 3a-4a; C.A. App. 857-860).

However, the density of the overall development. could be

no greater than that permitted under the County’s zoning

ordinance (in this case, one unit per acre), computed on

the basis of the total acreage in the tract less one-half of

all land lying on a slope having a grade in excess of

25%. In addition, clustered units could not be built on

4

eny particular parce! that was on a steep slope or was

. cherwise unbuildable (C.A. App. 858).

The Commission approved the developer’s preliminary

plat for Temple Hills in May 1973 ( J A. 246-247).

The plat showed a total project area of 676 acres, of

which 416 acres eventually would be developed for resi-

dential use and 260 acres would be dedicated as open

space, primarily in the form of a 245-acre golf course.

Although the plat bore a notation stating that the num-

ber of “allowable dwelling units for total development”

was 736,! the plat actually showed lot lines for only 469

units on 287 of the 416 acres that were designated for

residential development. The remaining 129 acres, ou

which no lot lines were drawn, were lakeled “not to be

developed until approved by the Planning Commission.”

In June 1974 and June 1975, the preliminary plat for

Temple Hills was revised slightly and reapproved (J.A.

270, 272, 362). The owners sought and obtained approval

of a final plat for each section of the overall tract only

when they were ready to proceed with that section. Final

plais apparently were approved for several such sections

in 1973, 1974 and 1975 (J.A. 272, 277 278, 295-296).

Because of various economic problems, howe. »r, develop-

ment of Temple Hills faltered during 1976 and 1977, and

the preliminary plat w2s not reapproved during that pe-

riod (J.A. 274-275, 295-296).

In October 1977, Williamson County amended its zon-

ing ordinance. The 1977 ordinance retained the prior

density standard of one unit per acre, the exclusion of

one-half of the acreage having a grade of more than

25%, and the prohibition against building units on any

steeply sloped parcel (J.A. 417). Jt also added a new

requirement that in calculating the number of allowable

units, 10% of the total acreage must be deducte~ as

attributable to roads and utilities (ibid.). In 1978, the

1 The total number of allowabie units exceeded the total number

of acres because the term “acre” was defined as 40,000 square feet,

although a standard acre contains 43,500 square feet (J.A. 362).

5

developer of Temple Hills obtained approval of a pre-

liminary plat that was essentially similar to the one ap-

proved in 1973 (J.A. 274), and that plat was again ap-

proved fr one year in August 1979 (id. at 278-281, 296,

362).

b. By 1980, final plats covering 212 lots had been ap-

proved by the Commission and the 245-acre golf course

had been set aside as open space (J.A. 296, 362). In

October of that year, the developer again submitted a

preliminary sketch plat for Temple Hills that provi. —

for a total of 736 units, including the 212 lots previo:.sly

given final approval. This time the Cormrmissicn disap-

proved the submission (J.A. 297-298). Although the

Commission had adopted amended subdivision regulations

in June 1980,? the disapproval was not based on those

new regulations. Rather, the minutes of the Commis-

sion’s meeting state that the “plan as preyented” was

disapproved on three grounds: (1) there was no deduc-

tion for 10% of the acreage attributable to roads or one-

half of the land having a slope of more than 25%; (2)

approximately 18.5 acres that had been taken by emi-

nent domain for a parkway were not excluded in cal-

culating the number of units; and (3) individual lots

were located on slopes of more than the 25% (ibid.).

The Commission’s staff had estimated that these restric-

tions would reduce the number of allowable units on the

entire tract from 736 to 548 (J.A. 304), thereby permit-

ting 336 additional units.*

2 The new regulations increased the minimum lot size from 9,000

square feet to 12 acre and minimum lot width from 75 to 125 feet

(C.A. App. 884, 940). The 1980 regulations also provided that the

Commission could issue variances where “strict adherence to [the]

regulations would cause unnecessary hardship” (C.A. App. 932-

933).

8 The Commission’s staff had recommended disapproval on several

additional grounds, including (1) failure to conform to 1980 sub-

division regulations pertaining to the length of cul-de-sacs, road

grades, minimum lot size, and roid frontage; (2) inadequacy of the

main access road; and (3) failure to provide adequate fire protec-

tion service and recreational facilities (J.A. 304-305). How-

6

c. 1a November 1980, respondent acquired, through

foreclosure, the 258 acres of the Temple Hills tract that

had not yet been developed and sold (Pet. App. 5a; Tr.

791-792).* In June 1981, respondent submitted a pre-

liminary plat that was similar to the developer’s proposal

ever, a committee that had been appointed by the Commission to

assist the developer in designing a suitable plat for Temple Hills

had recommended waiver of the cul-de-sac, road grade, minimum

lot, and road frontage requirements (id. at 297, 305-306).

4 Respondent’s association with the Temple Hills project has a

complicated history. In 1973, the joint venture that was formed to

develop Temple Hills obtained an $8 million loan that was arranged

by the Hamilton Mortgage Corp., which, along with respondent, was

a subsidiary of Hamilton Bankshares, a hoiding company. Respond-

ent participated ir. the loan in the amount of $900,000 (Tr. 774-779).

In February 1976, Ha:uilton Bankshares, its mortgage subsidiary,

and another subsidiary bank that had participated in the loan to

the Temple Hills developers all became insolvent, but respondent did

not (Tr. 777, 780, 782). In July 1976, respondent was acquired by

Ancorp Bankshares, another holding company (Tr. 781). Ancorp

identified respondent’s participation in the Temple Hills loan as one

of several “problem loans” (Tr. 774). ixevertheless, through a com-

plicated series of transactions involving the trustee in bankruptcy

of the mortgage subsidiary and the Federal Deposit Insurance Cor-

poration (which was liquidating the other banking subsidiary),

Arcorp caused respondent to acquire 4 100% interest in the Temple

Hills project in return for giving up its interest in a development

in Hilton Head, on which the same three parties had foreclossd fol-

lowing default on « loan (Tr. 782-784). To acquire that interest,

respondent paid the FDIC $1.8 million and gave up its $900,000

interest in the Hilton Head project, leaving respondent with a total

stake in the Temple Hills project of $3.6 million (Tr. 784-785).

Respondent in turn sold the Temple Hiils property to Jim Patterson,

one of the original developers for $3.6 million, receiving $1.2 million

in czsh and a note for the balance of $2.4 million (Tr. 785-787).

Patterson then sold the golf course to satisfy other indebtedness on

the T2mple Hills project (Tr. 787). Although 60 houses were built

on the tract in 1978, the project slowed down after that date when

the economy worsened and Patterson experienced financial difficul-

ties (Tr. 790). Respondent foreclosed on the mortgage and pur-

chased the 252 acres at a sheriff’s sale on Noverrber 26, 1980, for

$1.75 million (Tr. 796). The balanced owed by Patterson (includ-

ing accrued interest) at the time of the foreclosure was $2.87

million (Tr. 793).

7

that had been rejected by the Commission in October

1980. The Commission again declined to approve tue

plat, relying in part un the same density and slope re-

strictions it had cited on the prior occasion.’ In addition,

the Commission explained that two cul-de-sacs were 3,000

and 5,000 feet in length, well in excess of the 800-foot

maximum under the subdiv:cion regulatioas (C.A. App.

945) ; road grades exceeded the maximum allowed under

county road regulations; the main access road for the

development (Temple Road) had deteriorated and could

not handle the traffic that would be generated; there was

confusion over responsibility for instelling underground

electrical cables; inadequate provisions were made for

fire protection, recreational facilities, and open space for

multi-famil, housing; and the plat failed to comply with

minimum lot size and frontage requirements‘in the 1980

subdivision regulations (ibid.).

3. Respondent then filed this suit in the United States

District Court for the Middle District of Tennessee seek-

ing damages and injunctive relief against the Commis-

sion under 42 U.S.C. 1983, based on an alleged taking of

its property in violation of the Fourteenth Amendment,

and under the state common law of estoppel (Pet. App.

5a).®

5 Representatives of respondent had appeared at the November 11,

1980 meeting of the Williamson County Board of Zoning Appeals,

seeking a ruling that respondent was entitled to develop Temple

Hills under the zoning ordinance in effect in 1973 rather than that

adopted in 1977 (J.A. 310-330). The Board ruled in respondent’s

favor, apparently on the ground that the prior approval of its

preliminary plats rendered its entire proposal, even though only

partially developed, a nonconforming use (id. at 328). Ho-wever,

the Planning Commission declined to follow that ruling on the

ground that the Board did not have jurisdiction to resolve such a

general question of law (J.A. 361; Tr. 187-188, 812)—a position

that subsequently was endorsed by an opinion of the Attorney Gen-

eral of Tennessee (No. 80-581 (Dec. 1, 1980) ).

® Respondent’s claims of a deprivation of equal protection and

procedural and substantive due process were rejected either by the

court or the jury (Pet. App. 4a-5a) and are not at issue here.

§

Respondent's coordinator for the Temple Hills project

testified at trial that, in his view. only 67 lots could be

developed on the remaining 258 acres in the Temple Hills

tract under the zoning ordinance and planning regula-

tions in effect in 1980 and under the conditions set forth

in the Commission’s June 1981 letter disapproving the

preliminary plat (J.A. 101-104; Tr. 238-243). However,

the county engineer testified that respondent would be

permitted to develop near'y 300 additional lots (Tr. 1467-

1468). The jury found thet respondent had been deprived

of the economically viable use of its land and that the

Commission therefore had unconstitutionally taken re-

spondent’s property (Tr. 2015-2016, 2022-2027). The

jury also found that the Con.mission was estopped under

state law from applying the present zoning regulations,

rather than the 1973 regulations, to the Temple Hills de-

velopment (Tr. 2016-2018, 2022, 2027). In light of the

jury’s estoppel verdict, the district court enjoined further

application of post-1973 regulations to Temple Hilis ( Pet.

App. 29a-30a).

The jury then awarded $350,000 in damages for a

“taking” of the property from the time the Commission

applied the 1980 regulations to respondent’s land until

the date of the jury’s estoppel verdict (Pet. App. 5a-6a;

Tr. 2040-2048, 2055, 2058), but the district court granted

the Commission’s motion for judgment notwithstanding

the verdict (Pet. App. 23a). The court reasoned that in

light of the jury’s estoppel verdict, there had been only a

temporary interference with respondent’s property. The

court concluded that this effect did not constitute a

taking for which compensation was required, especially

since “{a]ny damages which [respondent] suffered re-

sulted from an attempt by the local government to apply

regulations in a manner impermissible under staie law”

(Pet. App. 26a).

In March 1983, while cross-appeals were pending, the

Commission approved a modified preliminary plat sub-

mitted by respondents (see Pet. 8). We understand that

9

this approval was part of a settlement agreement between

the parties on the estoppel issue, under which the Com-

mission would permit respondent to develop 476 addi-

tional units and grant variances from the i973 regula-

tions for certain cul-de-sacs and road grades, and re-

spondent would resurface Temple Road, adhere to the

1980 standards in building additional roads. and avoid

locating lots on unsuitable soils. See Planning Comm’n

Minutes, Exh. 1 (Sept. 8, 1983).

4. Respondent nonetheless pursued its appeal, and a

divided court of appeals reinstated the award of damages

(Pet. App. la-22a). The majority found sufficient evi-

dence to support the jury’s verdict that the 258 acres

“had no remaining economically viable use” in light of

the Commission’s actions (Pet. App. 9a-10a). The ma-

jority also found sufficient evidence to support the jury’s

estoppel verdict and thus to support the conclusion that

the Commission had destroyed respondent’s reasonable

investment-backed expectations (Pet. App. 10a-i2a). On

this basis, the majority held that respondent was entitled

to compensation for a “temporary taking” of its property

between October 1980 and the date of trial 18 months

later (Pet. App. 12a-15a).

Judge Wellford dissented (Pet. App. 16a-22a). He

concluded that the evidence did not establish thit peti-

tioner had been denied economically viable use of its land,

especially because there was no evidence that respondent

had requested a variance a:id because it was “virtually

conceded” that, even under current standards, a total of

548 units would ve approved for the Temple Hills tract

(id. at 16a-17a). He further concluded, however, that,

the temporary interference with respondent’s expecta-

tions ‘d not constitute a taking, particularly since the

Commission had determined that respondent was not

even in compliance with some restrictions that were con-

tained in the 1973 regulations (id. at 17a-20a).

10

INTRODUCTION AND SUMMARY OF ARGUMENT

There is a fundamental defect in the proceedings in

this case that seems not to have been addressed by the

courts below. The court of appea!s reinstated an award

of damages for an unlawful “taking” of respondent’s

property. Yet the Constitution does not prohibit the

government from taking private property; to the con-

trary, the power to do so is an essential attribute of

sovereignty. The Fifth Amendment, which is applicable

to the States through the Fourteenth Amendment,’ pro-

vides only that private property shall not be taken for

public use “without just compensation.” Compare Par-

ratt v. Taylor, 451 U.S. 527, 537 (1981). Nor does the

Constitution require that compensation precede the tak-

ing; it is sufficient if rNere iS~a_procedure pursuant to

which the person deprived of his property may thereafter

recover compensation. Hurley v. Kincaid, 285 U.S. 95,

104 (19382); Ruckelshaus v. Monsanto Co., No. 838-196

(June 26, 1984), slip op. 28. Only where a State has not

provided such a post-taking procedure (or where that

procedure is inadequate) has the State violated the con-

stitutional prohibition against the taking of property

without just compensation, and only then may a federal

court entertain a suit to remedy the alleged constitutional

violation. Compare Parratt v. Taylor, supra; Hudson v.

Palmer, No. 82-1630 (July 3, 1984), slip op. 12-18; éd.

at 3-5 (O’Connor, J., concurring) ; id. at 2 n.4 (Stevens,

J., concurring and dissenting). See Dohany v. Rogers,

281 U.S. 362, 366-368 (1930). To ignore this principle

“would make of the Fourteenth Amendment a font of

(land use law and remedies] to be superimposed upon

whatever systems may already be administered by the

States.” Parratt v. Taylor, 45: U.S. at 544, quoting Paul

v. Davis, 424 U.S. 693, 701 (1976).

In this case, the Tennessee Constitution provides that

no property shall be taken or applied to public use “with-

out just compensation being made therefor.” Art. I, § 21.

7 Chicago, B. & Q.R.R. Vv. Chicago, 166 U.S. 226, 239 (1897°.

11

To implement this guarantee, state law permits a land-

owner to bring an actior *o recover compensation for a

taking that already has occurred (Tenn. Code Ann. § 29-

16-123 (1980)), and the Tennesee Court of Appeals has

stated that “[i]t is possible to recover in inverse con-

demnation for unreasonable restriction of the use of prop-

erty by enactment of a zoning law.” Davis v. Metropoli-

tan Gov’t, of Nashville, 620 S.W.2d 532, 534 (1981); ef.

Land Associates V. Metropolitan Airport Authority, 547

F. Supp. 1128, 1131 (M.D. Tenn. 1982), aff'd, 712 F.2d

248 (6th Cir. 1983). Because respondent apparently has

never sought compensation under this procedure or shown

that it does not afford an adequate remedy (compare

Agins Vv. City of Tiburon, 447 U.S. 255, 259 (1980) ), the

courts below erred in entertaining respondent’s suit under

42 U.S.C. 1983 seeking relief for an allegedly unconstitu-

tional taking. See Suess Builders Co. v. City of Beaver-

ton, 656 P.2d 306, 313-314 (Or. 1982).

A. Quite aside from the defect just discussed, the

court of appeals in this case countenanced a wholly un-

warranted and peremptory intrusion by the federal courts

into the orderly administration of the zoning and land

use laws of the States and their local governments. The

district court, affirmed by the court of appeals, enter-

tained respondent’s suit contending that the Planning

Commission’s disapproval of a particular preliminary

plat had resulted in a taking of its property, even though

respondent had failed to develop an alternative proposal

in an effort to accommodate the Commission’s concerns,

failed to pursue applicable variance procedures that are

designed to alleviate hardships, and failed to seek judicial

review in state court. There accordingly was no indica-

tion that the State had finally and permanently barred

all substantial development on respondent’s tract, such

that its actions could be said to have ripened into a

concrete “taking.”

B. The court of appeals’ conclusion that a “taking”

had occurred in this case by virtue of the Commission’s

application of reasonable zoning regulations and related

12

restrictions that plainly permitted substantial residential

development on the remaining portions of the Temple

Hills tract is flatly inconsistent with this Court’s repeated

recognition of the central role of zoning and other land

use restrictions in promoting public health and safety

and the general welfare of the community. There was no

physical invasion of respondent’s premises, no substan-

tial change in governing regulations, no uniquely harsh

impact on respondent, and no interference with reason-

able investment-backed expectations on respondent’s part

that it would be permitted to develop additional lots with-

out regard to the regulations in effect when it sought

final approval.

C. Because the court of appeals was clearly incorrect

that the regulations and other restrictions respondent chal-

lenged would have resulted in a taking if they bad been

made permanently applicable to respondent’s lana, it is

clear that no taking occurred during the limited period

that elapsed until the district court held that the Commis-

sion was barred by state law from applying the post-1973

regulations to Temple Hills. In any event, because the

district court held that the Commission’s actions were r 9t

authorized by state law, those actions cannot give rise to

a claim for just compensation.

ARGUMENT

A. THE COMMISSION’S ACTIONS DID NOT RIPEN

INTO A FINAL DISAPPROVAL BY THE STATE

THAT COULD CONSTITUTE A “TAKING” OF PRI-

VATE PROPERTY

After the Planning Commission declined to approve the

preliminary plat respondent submitted in June 1981, re-

spondent did not revise its submission in an effort to

meet the Commission’s concerns, did not request a vari-

ance, and did not seek judicial review in state court Re-

spondent instead immediately brought this action in fed-

eral district court alleging that the Commission’s action

resulted in a taking of its property in violation of the

Federal Constitution. The constitutional claim was not

ripe, however, because as a result of respondent’s failure

bi

\

13

to pursue available procedures under state law, there

had been no final action by the State barring the devel-

opment of respondent’s land that in turn could properly

be regarded as a “taking” of respondent’s property.

1. In Agins v. City of Tiburon, 447 U.S. 255 (1980),

the Court held that the mere enactment of the zoning

ordinances under review dic not constitute a taking of

the appellants’ property, because they might have been

permitted under those ordinances to build as many as five

houses on their five-acre parcel. The Court further held

that “{b]jecause the appellants [had] not submitted a

plan for development of their property as the ordinances

permit[ted], there [was] as yet no concrete controversy

regarding the application of the specific zoning provi-

sions.” 447 U.S. at 260. As petitioner contends (Pet. 13-

14), this case is in essentially the same posture.

To be sure, respondent, unlike the appellants in Agins,

did submit a preliminary plat to the Commission in June

1981, and the Commission declined to approve that plat.

But the Commission did not suggest that it intended to

bar all or substantially all further development on the

remaining 258 acres of the Temple Hills tract, such that

it would be futile for respondent to submit a revised pro-

posal. To the contrary, the County Engineer testified at

trial that the zoning ordinance and subdivision regula-

tions would have permitted almost 300 additional units to

be built (Tr. 1467-1468). In these circumstances, it was

incumbent upon respondent, before suing to recover for

an allegedly unlawful taking, to revise its proposal and

to cooperate in good faith with the Commission in an

effort to reach a mutually satisfactory accommodation.

In that process, the Commission would have had an op-

portunity to correct its own errors, to apply its experi-

ence and expertise, to reach a deliberate and conclusive

judgment regarding the precise extent to which it would

permit development on the tract, and to develop a more

complete record to inform the judgment of a court that

might review its actions under state law er make the

essentially ‘“‘ad hoc, factual inquiries” required in consid-

14

ering a taking claim. See Hodel v. Virginia Surface

Mining & Reclamation Ass’n, 452 "J.S. 264, 295 (1981) ;

cf. Weinberger v. Salfi, 422 U.S. 749, 765-766 (1975).

Only then would the Commission’s ‘ecision applying the

governing regulations to the particu:ar parcel have had

sufficient formality, ecnereteness and finality to be re-

garded as an actual “taking” of property by the State, as

distinguished from an interlocutory ruling or informal

action in the administration of a regulatory program

that could not properly give rise to a claim for monetary

relief. Cf. United States v. S.A. Empresa De Viacao

Aerea Rio Grandense (Varig Airlines), No. 82-1349

(June 19, 1984), slip op. 10-12.

2. Respondent not only failed to revise its submission

to meet the objections of the Commission within the limi-

tations imposed by the zoning ordinance and subdivision

regulations in effect in 1981; it also failed to seek a vari-

ance from the application of those limitations. The Board

of Zoning Appeals was authorized to grant a variance

where unusual topographical conditions created “excep-

tional practical difficulties” or “exceptional ana undue

hardship,” if it could do so “without substantially impair-

ing the public good” (Tenn. Code Ann. § 13-7-109

(1980)). The Commission likewise was authorized to

grant a variance from its regulations in cases involving

undue hardship or special topographical features (C.A.

App. 932-933). It therefore was possible that respondent

could have obtained a relaxation of the provisions govern-

ing density, sloping, minimum lot size, frontage, road

grades, and cul-de-sac lengths to the extent necessary to

permit respondent to develop what it regarded as a finan-

cially feasible package.*®

8 Such a request might well have been fruitful, at least in some

respects. A committee appointed by the Commission to assist the

developer to prepare a suitable proposal for Temple Hills in October

1980 had recommended waiver of the cul-de-sac, road grade, mini-

mum lot, and road frontage requirements of the 1980 subdivision

regulations. See note 3, supra.

15

The hardship and topographical exceptions permitted

under the variance procedures are responsive to the very

concerns respondent has raised in connection with its

taking claim in this case, and, by the same token, they

afford the Commission and the County an opportunity to

avoid such a taking and any monetary liability it might

impose. Under essentially identical circumstances, the

Court in Virginia Surface Mining held that tne land-

owners’ taking challenge to particular provisions of the

Surface Mining Act was not ripe because they might ob-

tain administrative relief by seeking a variance. See

452 U.S. at 297.* The decision in Virginia Surface Min-

ing, like that in Agins, therefore required the district

court to dismiss respondent’s taking claim on ripeness

grounds. See also Ruckelshaus v. Monsanto Co., No. 83-

196 (June 26, 1984), slip op. 24, 29, 30-31; Dames &

Moore v. Regan, 453 U.S. 654, 689 (1981); Pet. App.

16a-17a (Wellford, J., dissenting).

Of course, in March 1983, after the district court en-

tered its judgment, the Commission did approve a pre-

liminary plat for 476 additional units as part of a settle-

ment of respondent’s estoppel claim.’ Because respond-

ent’s taking claim was not ripe prior to that date and

because it then was rendered moot by the Commission’s

approval of a preliminary plat permitting substantial

* See Freilich, Solving the “Taking” Equation: Making the Whole

Equal the Sum of Its Parts, 15 Urb. Law. 447, 473 (1983) (foot-

notes and emphasis omitted) :

The time of “taking” generally is never to be determined

from the date of publication of a plan or enactment of a regu-

lation. As of that time and until the landowner applies for 2

variance, a building permit, or other similar license from the

appropriate board and has been denied, there has been no harm

done. Harm cannot be determined until the regulation is

applied to the individual.

See also Hernandez v. City of Lafayette, 643 F.2d 1188, 1201 (5th

Cir. 1981), cert. denied, 455 U.S. 907 (1982).

10 In doing so, the Commission granted respondent variances for

certain cul-de-sac and road grades. See pages 8-9, supra. ?

16

development, there is not now and never has been a

justiciable “taking” issue in this case.

3. The viability of respondent’s taking claim in federal

court is further undermined by respondent’s failure to

seek judicial review in state court of the Commission’s

disapproval of its preliminary plat in June 1981. If, as

appears, there was an available state procedure for ob-

taining such review," then the Commission’s decision did

not nder state law constitute a final rejection by the

State of respondent’s claim of a right to develop its prop-

erty in conformity with its submission. Under the prin-

ciples of Agins and Virginia Surface Mining, just dis-

cussed, there was no ripe taking claim for this additional

reason as well.

Pursuit of available state judicial remedies in these

circumstances would have afforded the state courts an

opportunity to construe and apply state law and regula-

tions in light of respondent’s constitutional contentions,

perhaps “thereby obviating any need to address the con-

stitutional questions” (Virginia Surface Mining, 452 US.

at 297 (footnote omitted) ), or to grant relief on constitu-

tional grounds. See City of Eastlake v. Forest City En-

terprises, 426 U.S. 668, 677 (1976). Moreover, if the

state court had held the Commission’s action invalid or

state law grounds, respondent’s taking claim would have

been moot, since agency action that is unauthorized by

law cannot give rise to a claim for just compensation.

See Ruckelshaus v. Monsanto Co., slip op. 27; Dames &

Moore v. Regan, 453 U.S. at 688; Regional Rail Reorgani-

zation Act Cases, 419 U.S. 102, 127 n.16 (1974) ; Yearsley

v. Ross Construction Co., 309 U.S. 18, 21 (1940); Hooe

v. United States, 218 U.S. 322, 336 (1910). Cf. Virginia

Surface Mining, 452 U.S. at 296 n.37. And in fact the

11 Tennessee courts may review arbitrary zoning action by a gov-

ernmental body by means of the common law writ of certiorari. See

Tenn. Code Ann. § 27-9-101 (1980) ; Brooks v. City of Memphis, 192

Tenn. 371, 241 S.W.2d 432 (1951) ; Land Associates v. Metropolitan

Airport Authority, 547 F. Supp. 1128, 1133 (M.D. Tenn. 1982), aff’d,

712 F.2d 248 (6th Cir. 1983).

17

district court in this case held that the Commission’s ac-

tions were not authorized by state law, thereby removing

any basis for a claim of just compensation. See page 8,

supra, and pages 27-28, infra.”

12 The principles we have discussed in the text are nct simply ones

of federalism. They go to the question whether there even has been

a taking of private property within the meaning of the Fifth

Amendment. Accordingly, as the Court’s decision in Virginia Sur-

face Mining makes clear, those principles are equally applicable to

claims that a federal statute or regulation would result in a taking

if applied to particular property. Many federal programs provide

for the granting of licenses, permits, or variances. Often there are

established procedures for administrative review of a denial of an

application, and judicial review typically is available either under

the Administrative Procedure Act, 5 U.S.C. 701 et seq., or under a

special statutory review procedure. The orderly administration of

these programs would be undermined if a person subject to regula-

tion under them could ignore established procedures for direct re-

view of interlocutory or final agency action and instead bring a

taking claim in federal court, whether in the form of an action for

injunctive or declaratory relief or a suit under the Tucker Act seek-

ing just compensation.

For example, the prohibition in Section 522(e) of the Surface

Mining Control and Reclamation Act of 1977, 30 U.S.C. 1272(e),

aguinst any surface coal mining in certain areas is made subject to

“valid existing rights.” See Virginia Surface Mining, 452 U.S. at

296 & n.37. The Department of the Interior has construed that ex-

ception as embodying a congressional intent that the prohibition in

Section 522(e) does not apply where it would result in a taking that

would require the pe,ment of compensation under the Fifth Amend-

ment. A person seeking to raine in such an area must seek an admin-

istrative determination by +he Interior Department as to whether he

has a “valid existing right,” and that administrative decision is sub-

ject to judicial review. See 48 Fed. Reg. 41313-41314 (1983). Thus,

it is particularly clear under this statutory scheme that the denial

of a mining permit on such land cannot give rise to a claim for just

compensation because, under the Secretary’s construction, Congress

has not authorized the denial of a permit that would constitute a

taking. The person claiming a right to mine on the land therefore

must pursue his administrative remedies and seek judicial review of

an adverse adriinistrative determination; he has no taking claim

as such.

This same rationale would apply in the administration of any

statute in which Congress did not authorize the agency to engage in

action that would constitute a taking and thereby give rise to a

18

B. THE PLANNING COMMISSION’S ACTIONS IN

1980, EVEN IF THEY HAD NOT BEEN MODIFIED

BY THE DISTRICT COURT’S ESTOPPEL RULING,

DID NOT EFFECT A “TAKING” OF RESPOND-

ENT’S PROPERTY

If, contrary to our submission in Point A, the “taking”

issue in this case is ripe for resolutionf, the court of ap-

peals’ holding that the Planning Commission’s actions ac-

complished a taking of respondent’s property for which

the Constitution requires the payment of compensation

should be reversed. That holding is flatly inconsistent

with this Court’s decisions.

The Court need not be detained here by its threshold

admonition in other cases that “[t]he application of a

general zoning law to particular property effects a tak-

ing if the ordinance dees not substantially advance legiti-

mate s‘ate interests” (Agins v. City of Tiburon, 447 U.S.

at 260). As the court of appeals conceded (Pet. App. 6a),

the Williamson County zoning ordinance and subdivision

regulations in effect in 1980 clearly advanced legitimate

state interests. Here, as in Agins, the density limitations

further the important interest of preserving open space

and thereby “protect[ing] the residents * * * from the

ill effects of urbanization” (447 U.S. at 261 (footnote

omitted) ). Similarly, the prohibition against building on

steeply sloped lands respects the integrity of the natural

claim for just compensation. This is but another aspect of the ques-

tion, discussed in Ruckelshaus v. Monsanto Co., slip op. £7, of

whether Congress intended for there to be a Tucker Act remedy in

the pa.ticular case. Where Congress has not authorized a Tucker

Act remedy in connection with a regulatory program administered

by a federal agency under broad discretionary standards, it may

often be because Congress did not want the public to subsidize the

adjustment of benefits and burdens of private persons and therefore

did not authorize the agency to apply the statute in circumstances

that would constitute a taking and give rise to a claim for monetary

compensation. In those circumstances, the court may enjoin the

operation of the statute or agency action to the extent it constitutes

a taking, not only because a Tucker Act remedy is not available, but

also because Congress did not intend for the statutory restrictions

to be applied in that manner.

19

terrain as an aesthetic matter, protects public health and

safety, and helps to retain soil, vegetation and water on

the slope. Cf. Virginia Surface Mining, 452 U.S. at 283-

284 & n.22. See Goldblatt v. Hempstead, 369 U.S. 590,

593 (1962). The other objections in the Planning Com-

mission’s June 1981 letter (see pages 6-7, supra) also

clearly served legitimate state interests.

The question, then, is whether the County’s pursuit of

these concededly valid objectives by enforcement of its

zoning ordinance and subdivision regulations nevertheless

constituted a taking. “[T]his Court has generally ‘been

unable to develop any “set formuia” for determining when

“‘ustice and fairness” require that economic injuries

caused by public action’ must be deemed a comper

taking.” Kaiser Aetna v. United States, 444 U.S.

175 (1979), quoting Penn Central Transportation Ce.

New York City, 488 U.S. 104, 124 (1978). The Cou’

instead has considered a number of factors that fall into

three general categories: (1) “the character of the gov-

ernmental action,” (2) “[t]he economic impact of the

regulation,” and (3) the extent to ae oe has been

an interference with “distinct investment-Wacked expecta-

tions” (Penn Central, 448 U.S. at 124).

1. “A ‘taking’ may more readily be found when the

interference with property can be characterized as a phys-

ical invasion by government” (Penn Central, 438 U.S. at

124, citing United States v. Causby, 328 U.S. 256 (1946) )

“than when interference arises from some public program

adjusting the benefits and burdens of economic life to pro-

mote the common good” (438 U.S. at 124). See Loretto v.

Teleprompter Mar.rattan CATV Corp., 458 U.S. 419, 426,

437, 440-441 (1982). The zoning ordinance and subdivi-

sion regulations at issue here obviously fall in the latter

category.

In addition, the Court has attached significance in the

area of land-use regulation to whether the statutory pro-

gram imposes restrictions on a number of parcels and

thereby enables the owner of any particular parcel tu

| 20

share in the benefits as well as the burdens of the exercise

of governmental power. Agins v. City of Tiburon, 447

U.S. at 262; Penn Central, 438 U.S. at 131, 134-135; id.

at 139-140 (Rehnquist, J., dissenting). In this case, as in

Agins (447 U.S. at 262), there is no indication that re-

spondent’s tract is the only property in the County af-

fected by the regulations. Compare Virginia Surface

Mining, 452 U.S. at 281-282. Moreover, while respond-

ent’s interest as the developer of the 258-acre tract is

largely transitory, the competing interests may extend

for generations to come. Governmental regulation of the

development of vacant land protects the distinct interests

of the individuals who will make their homes there after

the developer has wound up its affairs and assures that

the often irreversible transformation of farms, woods, and

wetlands will not have an unduly adverse impact on nat-

ural resources, adjacent landowners, and the community

at large. See 452 U.S. at 277-280; Hodel v. Indiana, 452

U.S. 314, 325-329, 332-333 (1981).

2. In assessing the second factor—the particularized

economic impact of a regulatory program—it is of course

necessary to start with the fundamental premise that

“(glovernment nardly could go on if to some extent val-

ues incident to property could not be diminished without

paying for every such change in the general law” (Penn-

sylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) ).

The court of appeals based its finding of a taking in this

case principally on the diminution in the value of the

land resulting from application of the zoning ordinance

and suodivision regulations in effect in 1980 and the other

objections to the preliminary plat stated in the Commis-

sion’s June 1981 letter (Pet. App. 9a-10a). But where,

as here, land-use regulations “are reasonably related to

the promotion of the general welfare,” this Court’s deci-

sions “uniformly reject the proposition that diminution in

property value, standing alone, can establish a ‘taking’ ”

(Penn Central, 438 U.S. at 181). See e.g., Euclid v.

Ambler Realty Co., 272 U.S. 365 (1926) (75% diminu-

tion in value caused by zoning law); Hadacheck v.

21

Los Angeles, 239 U.S. 394 (1915) (8714% diminution in

value) ; City of Eastlake v. Forest City Enterprises, 426

U.S. at 674 n.8.

The soundness of that rule is especially evident in this

case. The passage and enforcement of the zoning ordi-

nance anu subdivision regulations did not require respond-

ent to cease any existing use of the land in its unim-

proved state. Absent substantial indications to the con-

trary, such unimproved land (and other land as well) is

generally held subject to the prospect that reasonable gov-

ernmental regulation may intervene in a manner that

could restrict further development of the land.** Accord-

ingly, “the submission that [respondent] may establish a

‘taking’ simply by showing that [it has] been denied the

ability to exploit a property interest that [it] heretofore

had believed was available * * * is quite simply un-

tenable.” Penn Central, 438 U.S. at 130.“

18 The prospect that regulation may inhibit economic development

of a tract is all the more evident if the land was acquired or re-

tained for a substantial period of time while it was subject to a reg-

ulatory program that imposed special restrictions on its use or the

exploitation of its resources. A finding of a taking by virtue of that

very governmental regulation would be especially unwarranted in

such circumstances. The Surface Mining Control and Reclamation

Act of 1977, 30 U.S.C. 1201 et seq., and the wetlands and other

activities of the Corps of Engineers under Section 404 of the Clean

Water Act of 1977, 33 U.S.C. 1344, are examples of comprehensive

federal regulatory programs that may affect a landowner’s expecta-

tions regarding the extent and manner in which he may develop his

land.

14 The court of appeals’ consideration of the zoning ordinance and

regulations was further flawed because it focused only on 258 of

the 676 acres in the Temple Hilis tract. As respondent has insisted,

the development of Temple Hills must be viewed as a single project.

Of the original 676 acres, 250 already have been developed as a

country club/golf course and additional land has been devoted to

212 lots for housing. By focusing only on that portion of the devel-

opment that has not yet been sold off, the court ignored the require-

ment that a taking analysis must focus on the “nature and extent

of interference with rights in the parcel as a whole.” Penn Central,

438 U.S. at 130-131. See also Deltona Corp. v. United States, 657

F.2d 1184, 1192-1193 (Ct. Cl. 1981) (no taking where landowner

22

Moreover, in this case, there was no substantial change

in the relevant provisions of the zoning ordinance or sub-

division regulations between 1973 and 1981 that could

trigger an inquiry into the question of the diminution in

the value of respondent’s property even if that factor

could give rise to a taking. The density and slope re-

strictions in effect in 1981 were essentially identical to

those in effect in 1973. See pages 3-5, supra. The only

new zoning requirement was that 10% of the acreage,

attributable to roads, be deducted in calculating the

total number of lots allowed; that deduction did not sig-

nificantly affect the use of the land for a residential sub-

division. Similarly, although subdivision regulations were

revised in 1980 to increase the minimum size and road

frontage for lots in cluster developments, those provisions

did not affect the density permitted on the overall tract

under the zoning regulations. And the cul-de-sac restric-

tions that the Commission applied in 1981 were actually

more generous than those in effect in 1973 (C.A. App.

880, 945). Thus, the changes in the applicable regulatory

provisions invoked in 1981 do nct furnish even a color-

able basis for a taking claim.

The court of appeals, in findirg that a taking never-

theless occurred by application of the more recent regu-

lations, relied on language in several opinions of this

Court stating that application of a general zoning ordi-

nance may effect a taking if it “denies an owner economi-

cally viable use of his land” (Agins v. City of Tiburon,

447 U.S. at 260; see also Kirby Forest Industries v.

United States, No. 82-1994 (May 21, 1984); Virginia

Surface Mining, 452 U.S. at 295-297). The court of ap-

peals reasoned that a taking had occurred in this case be-

cause application of the ordinance and regulations in ef-

fect in 1981 and the other objections raised by the Com-

mission would mean that respondent would not make a

profit—and indeed would experience a substantial loss—

can develop some part of the property but is prohibited from devel-

oping another portion consisting of ecologically sensitive wetlands).

23

if it sought to subdivide and sell the land. On this basis,

the court concluded that respondent’s 258 acres “had no

remaining economically viable use” (Pet. App. 9a-10a

(footnote omitted) ). The court of appeals plainly mis-

understood the meaning of the quoted phrase.

This Court in Agins drew the phrase “economically

viable use” from a footnote in its opinion in Penn Cen-

tral (see 447 U.S. at 260, citing 438 U.S. at 188 n.36).

The latter case involved a challenge to a landmark law

that imposed on the owner of Grand Central Terminal

an affirmative obligation to keep the building in good re-

pair and to refrain from altering its exterior without

city approval. The footnote stressed that the Court’s

holding that the landmark law did not effect a taking

was based on the company’s “present ability to use the

Terminal for its intended purposes and in a gainful

fashion.” Then, quoting a concession by counsel during

oral argument, the Court simply observed that the com-

pany could obtain relief if it showed at some point in

the future that “circumstances have so changed that the

Terminal ceases to be ‘economically viable’” (4388 U.S.

at 138 n.36).

It is one thing to suggest, as the Court did in Penn

Central, that the government cannot, without paying just

compensation, impose an affirmative and permanent ob-

ligation on an ordinary property owner to operate its

premises at a loss. It is quite another to conclude, as the

court of appeals did in this case, that the government has

an affirmative obligation to waive the requirements of

reasonable and generally applicable zoning restrictions

that actually permit substantial development on the lands

to which they apply (and also to waive the minimum

standards for roads and the furnishing of other services)

in order to enable a particular landowner to proceed with

a development that otherwise would be financially un-

sound because of market conditions, the marginal suit-

ability of the land, or the expense of installing the neces-

sary improvements (cf. EPA v. National Crushed Stone

Ass’n, 449 U.S. 64, 75-78 (1980) )—and that the govern-

24

ment must compensate the landowner if it fails to do so.”

As this Court has said, “loss of future profits—unaccom-

panied by any physical property restriction—provides a

slender reed upon which to rest a takings claim.” Andrus

v. Allard, 444 U.S. 51, 66 (1979).

It therefore is clear that the Court did not intend the

phrase “economically viable use” in Agins, Virginia Sur-

face Mining and Kirby Forest to suggest that the govern-

ment must actively promote the ability of a landowner to

realize a financial return on his land. See Park Avenue

Towers Associates v. City of New York, No. 84-7128

(2d Cir. Oct. 12, 1984), slip op. 6641-6645; William C.

Haas & Co. v. San Francisco, 605 F.2d 1117, 1120-1121

(9th Cir. 1979), cert. denied, 445 U.S. 928 (1980).

Rather, the Court was referring to circumstances in

which governmental action (not the features of the land

itself or the financial or other circumstances of its owner)

might work a “radical curtailment of a landowner’s free-

dom to make use of or ability to derive income from his

land” (Kirby Forest, slip op. 12)—i.e., to affirmative gov-

ernmental action that drastically interferes with a rec-

ognized ability to exploit a substantial economic advan-

tage or other potential use inhering in the property itself,

and thereby effectively destroys the owner’s interest in

the property. Accord, Virginia Surface Mining, 452 U.S.

at 296. See, e.g., Pennsylvania Coal Co. V. Mahon, 260

U.S. 398, 414-415 (1922); cf. Armstrong V. United

States, 364 U.S. 40, 48 (1960).**

15 It is permissible for a localit~ to limit development that would

require the expenditure of substantial public funds for roads and

other services (City of Eastlake v. Forest City Enterprises, 426 U.S.

at 673; James v. Valtierra, 402 U.S. 137, 143 n.4 (1971)) or to

condition approval upon the agreement of the developer to con-

tribute to the payment, in recognition of the distinct benefit that

will be realized by both the developer and the subsequent residents

of the subdivision. See, e.g., Kaiser Aetna, 444 U.S. at 179. See

page 2, supra.

16 See Penn Central, 438 U.S. at 127 (perhaps a taking occurs if a

restriction “has an unduly harsh impact upon the owner’s use of the

property”); Ruckelshaus V. Monsanto Co., slip op. 16, quoting

25

Agins, for example, involved five acres of extremely

desirable residential property that allegedly had the high-

est market value of any land in the community (447 U.S.

at 258). A total and permanent prohibition against the

building of any houses on such property might well con-

stitute a taking, at least in the absence of weighty coun-

tervailing reasons for the restriction. Compare Miller v.

Schoene, 276 U.S. 272 (1928), with Pennsylvania Coal

Co. v. Mahon, 260 U.S. at 414. In this case, however,

there plainly was no such “radical curtailment” of an

independent economic value.

3. Although as a general matter even a substantial ad-

verse economic impact does not in itself render a regula-

tory measure a taking, the Court has acknowledged that

there might be narrow circumstances in which the unique

impact of a statute on a particular property interest

“may so frustrate distinct investment-backed expectations

as to amount to a ‘taking’” (Penn Central, 438 U.S. at

127). In order for a taking to be found, however, the

expectation must itself partake of a discrete property in-

terest that is externally created or protected by law; “a

mere unilateral expectation or an abstract need is not a

property interest entitled to protection” (Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) ).

For example, in Ruckelshaus v. Monsanto Co., the

Court relied on an “explicit governmental guarantee” in

the applicable statute, the breach of which would “de-

stroy” the manufacturer’s competitive edge (slip op. 22-

23). But the Court stressed that in the absence of such

an “express promise,” no protected expectation arose

(id. at 20). Similarly, in Kaiser Aetna, the Court con-

emded that the linking to navigable waters of a body

of water that was private property under state law had

given rise to a concrete and protected expectancy in the

owner that it would be able to exercise the “fundamental”

right to exclude others from the private marina it had

United States v. General Motors Corp., 323 U.S. 373, 378 (1945)

(a taking occurs if the action’s “effects are so complete as to de-

prive the owner of all or most of his interest in the subject matter’).

26

created; but the Court so held because the channel was

dredged with the full knowledge and consent of the Corps

of Engineers (444 U.S. at 167, 179-180).

There can be no comparable claim of a “distinct invest-

ment-backed expectation” in this case. Respondent ap-

parently relies on the preliminary plat submitted by the

original developer in 1973. But the very denomination of

that filing as “preliminary” indicates that its approval

by the Commission did not confer a vested right on the

developer to subdivide and sell 736 lots. Indeed, under

state law, a subdivision plat may be recorded only after

it has received the final approval of the planning commis-

sion (Tenn. Code Ann. § 13-3-402 (1980) ), and the Com-

mission’s regulations in this case explicitly provided that

approval of the preliminary plat did not constitute ac-

ceptance of the final plat (C.A. App. 872). Moreover,

the preliminary plat itself contained a notation that indi-

cated that 267 lots were not to be developed until approved

by the Commission. See page 4, supra.

Subsequent events further undermine the notion that

respondent had a concrete expectation requiring the pay-

ment of compensation. Respondent voluntarily became the

sole creditor of the developer of Temple Hills in 1977, at

a time when progress was halted and the developer had

failed to renew the preliminary plat in conformity with

the Commission’s regulations. See note 4, supra.And re-

spondent purchased the remaining 258 acres at 2 fore-

closure sale in November 1980, after the Commission had

disapproved the developer’s renewed preliminary plat un-

der the 1980 regulations. See pages 5-6, sup:. Respond-

ent had ample notice of the relevant circumstances, and

it therefore plainly had no constitutionally protected ex-

pectation that it would be entitled to develop the remain-

der of the Temple Hills tract in the manner depicted in

the rejected preliminary plat or by application of the 1973

regulations. Compare Ruckelshaus v. Monsanto Co., slip

op. 17.77

17 The jury’s verdict that the Commission was estopped under

ordinary common law principles of course does not control the

27

C. THE AWARD OF DAMAGES FOR A “TEMPORARY

TAKING” SHOULD BE REVERSED

For the reasons we have explained ir Point B, respond-

ent’s argument that the Commission’s rejection of the

preliminary plat it filed in June 1981 amounted to a

“taking” of its property within the meaning of the Fifth

and Fourteenth Amendments would be wholly insubstan-

tial even if the restrictions had been permanently applied

to respondent’s land. It follows a fortiori that there was

no “taking” of respondent’s property by virtue of the

temporary application of those provisions for the limited

period between October 1980, and the date of the jury’s

verdict in April 1982. The judgment of the court of ap-

peals reinstating the jury’s award of $350,000 in dam-

ages for a taking of respondent’s property during that

period therefore should be reversed.

Accordingly, there once again ** is no occasion for the

Court to consider whether compensation must be paid for

the temporary application of a regulation that is subse-

quently held to constitute a taking. That question is not

properly presented in this case in any event. The district

court held on the basis of the jury’s verdict that the

Commission was prevented by state law from requiring

respondent to comply with its current regulations rather

than those in effect in 1973 (Pet. App. 27a-28a, 29a-30a;

Tr. 2016-2108, 2027). The district court then concluded

that “[a]ny damages which plaintiff suffered resulted

from an attempt by the local government to apply regu-

lations in a manner impermissible under state law” (Pet.

App. 26a). This Court repeatedly has made clear, how-

ever, that a claim for just compensat’on does not lie

where the governmental action that is alleged to have

distinct question of whether the Commission was constitutionally

barred from applying the amendments to the ordinance and regula-

tions to respondent’s land without paying just compensation. Cf.

Pension Benefit Guaranty Corp. v. R.A. Gray & Co., No. 83-245

(June 18, 1984).

18 See San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621,

623 (1981); Agins v. City of Tiburon, 447 U.S. at 263.

28

constituted a taking was not authorized. See, e.g., Hooe

vy. United States, 218 U.S. 322, 336 (1910); pages 16-17,

supra. Respondent therefore has no claim to just com-

pensation for the unauthorized actions by the Commis-

sion in 1980 and 1981, irrespective of whether those ac-

tions are regarded as having imposed permanent or tem-

norary restrictions un respondent’s use or development of

its land. Respondent’s claim for monetary relief in these

circumstances instead is one sounding in tort, based on

assertedly wrongful actions by agents of the State in their

administration of a state statute. Governmental entities

typically are immune from tort liability for such conduct.

See United States v. Varig Airlines, slip op. 10-12; 28

U.S.C. 2680(a).

Thus, even if the Court were prepared to reach the

question, this case would not be an appropriate vehicle

by which to determine whether the Constitution requires

that compensation be paid for the period between the

date on which an authorized regulatory measure was

adopted or finally applied to a particular parcel of land

and the date on which a court strikes down the measure

or its application on the ground that it would constitute

a taking if the restrictions were given permanent effect.’®

We argued in our amicus briefs in Agins and San Diego

that the Constitution does not prohibit a state from de-

termining that, as a general matter, only prospective re-

lief is available in those circumstances. We continue to

te concerned abort the consequences of an inflexible con-

stitutional rule that would require the payment of com-

pensation in all such cases, particularly where, as here,

the application of a zoning ordinance or other regulatory

measure did not require the landowner to cease any ex-

isting use of the property or prohibit him from selling it,

but, at most, simply had the effect of postponing the land-

19 The problem arises, of course, only where the governmental

entity has chosen not to make compensation available and therefore

not to accept and retain the property interest that the court has

held would be taken.

29

owner’s ability to devote the property to new uses.” None-

theless, relief might be appropriate in particular cases

involving such factors as unreasonable delay, bad faith,

or interference with a distinct investment-backed expec-

tion that development could proceed immediately. See,

e.g., Agins V. City of Tiburon, 447 U.S. at 263 n.9; Kirby

Forest, slip op. 11-14 & n.26.

We do not propose a definitive resolution of these ques-

tions here. Suffice it to say that the circumstances of

this case do not suggest a compelling occasion for the

announcement of a constitutional rule requiring the pay-

ment of compensation. In light of the established proce-

dures for receipt and review of subdivision plats and

the Commission’s rejection of the developer’s preliminary

plat in October 1980, respondent could have no “dis-

tinct” or “reasonable investment-backed expectation” that

it could proceed without delay during the 16-month period

prior to the date on which it obtained a judicial deter-

mination that the permanent application of the regula-

20 From the landowner’s perspective, even if the permanent appli-

cation of a regulatory measure would effectively destroy his interest

in the property and thus constitute a taking, it would not neces-

sarily follow that a temporary application of the measure has that

effect; when the restriction is lifted, the property is restored to its

market value. See Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. at 428, 435 n.12. By the same token, the development of

land ordinarily is irreversible, and there accordingly is a strong

countervailing public interest in maintaining the status auo pend-

ing the resolution of a legal dispute over whether the de: 2lopment

may go forward. Temporary application of the regulatory .seasure

therefore has essentially the same effect as a statutorily prescribed

injunction pendente lite. The requirement that the landowner main-

tain the status quo for a reasonable period in this manner thus

might be considered as “a burden borne to secure ‘the advantage of

living and doing business in a civilized community’” (Andrus Vv.

Allard, 444 U.S. at 67, quoting Pennsylvania Coal Co. v. Mahon, 260

U.S. at 422 (Brandeis, J., dissenting) ) and one of the “incidents of

ownership” in our increasingly urbanized and complex society—and

therefore not be “considered as a ‘taking’ in the constitutional

sense.” Danforth v. United States, 308 U.S. 271, 285 (1939).

30

tory measures in effect in 1981 would constitute a tak-

ing. And yet respondent was awarded $350,000 in dam-

ages for a temporary diminution in the value of the 258

acres, which even respondent’s own expert testified was ~ <ré

worth only $1,035,000 in 1982 (Tr. 679). An award of

that n.agnitude is a windfall; it is not one of those “bur-

dens which, in all fairness and justice, should be borne

by the public as a whole.” Armstrong v. United States,

364 U.S. 40, 49 (1960).

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

REx E. LEE

Solicitor General

F. HENRY HABICHT IT

Assistant Attorney General

Lou!Is F. CLAIBORNE

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

DAVID C. SHILTON

NANCY B. FIRESTONE

KAREN L. FLORINI

Attorneys

NOVEMBER 1984

ov. 5. GOVERNMENT PRinTine OFrice; 1964 461531 10094