WILLIAMSON COUNTY REGIONAL PLANNING COMMISSION, ET AL., PETITIONERS
V. HAMILTON BANK OF JOHNSON CITY
   No. 84-4
   In the Supreme Court of the United States
   October Term, 1984
   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
            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Introduction and summary of argument
   Argument
      A. The Commission's actions did not ripen into a
         final disapproval by the State that could constitute
         a "taking" of private property
      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 respondent's property
      C. The award of damages for a "temporary taking"
         should be reversed
   Conclusion
                          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 violation 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 development of a residential subdivision, was
ripe for adjudication, despite respondent's failure to revise its
proposal in light 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 adjudication, the
Commission's disapproval of the particular preliminary plat
constituted a taking, even though the zoning ordinance, subdivision
regulations, and other factors relied 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 current zoning
ordinance and subdivision regulations to respondent's land on a
permanent basis would have constituted a taking, the temporary
application of those provisions 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.
                     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 adop a zoning ordinance to regulate the location and
dimension of buildings, the density and distribution of population,
and the uses of buildings and land for "trade, industry, residence,
recreation, agriculture, forestry, soil conservation, water supply
conservation or other purposes." Tenn. Code Ann. Section 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 an future inhabitants of the state and of
its counties" (id. Section 13-7-103).  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 practical 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
zoning ordinances." Id. Section 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. Sections 13-1-106, 13-3-401 et
seq. (1980).  Petitioner 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 approved by the
responsible planning commission.  Id. Section 13-3-402.  In exercising
that responsibility, the planning commission must provide for the
"harmonious development of the region and its environs," the
"coordination of roads within the subdivided plat," "adequate open
spaces," "adequate transportation, water, drainage and sanitary
facilities," "avoidance of population congestion," and avoidance of
such "scattered or premature subdivision of land as would involve
danger or injury to health, safety or prosperity" (id. Section
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 County Regional Planning Commission
followed a two-step procedure for review and approval of a subdivision
plat (C.A. App. 870).  The initital step involved the preparation and
submission of a "preliminary sketch plat" showing, inter 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 expressly
provided, however, that the approval of a preliminary plat "will not
constitute acceptance of the final plat" and that approval of a
preliminary plat would 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 conform 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 suitability 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 conditions 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 know 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 "cluster" 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 any
particular parcel that was on a steep slope or was otherwise
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 residential 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 number of "allowable dwelling units
for total development" was 736, /1/ 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, on which no lot
lines were drawn, were labeled "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 plats apparently were approved for
several such sections in 1973, 1974 and 1975 (J.A. 272, 277-278,
295-296).  Because of various economic problems, however, development
of Temple Hills faltered during 1976 and 1977, and the preliminary
plat was not reapproved during that period (J.A. 274-275, 295-296).
   In October 1977, Williamson County amended its zoning 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).  It also added a new requirement that in
calculating the number of allowable units, 10% of the total acreage
must be deducted as attributable to roads and utilities (ibid.).  In
1978, the developer of Temple Hills obtained approval of a preliminary
plat that was essentially similar to the one approved in 1973 (J.A.
274), and that plat was again approved for one year in August 1979
(id. at 278-281, 296, 362).
   b. By 1980, final plats covering 212 lots had been approved 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 provided for
a total of 736 units, including the 212 lots previously given final
approval.  This time the Commission disapproved the submission (J.A.
297-298).  Although the Commission had adopted amended subdivision
regulations in June 1980, /2/ the disapproval was not based on those
new regulations.  Rather, the minutes of the Commission's meeting
state that the "plan as presented" was disapproved on three grounds:
(1) there was no deduction 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 eminent domain for a
parkway were not excluded in calculating 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 restrictions would
reduce the number of allowable units on the entire tract from 736 to
548 (J.A. 304), thereby permitting 336 additional units.  /3/
   c. In 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).  /4/ In June 1981, respondent
submitted a preliminary plat that was similar to the developer's
proposal that had been rejected by the Commission in October 1980.
The Commission again declined to approve the plat, relying in part on
the same density and slope restrictions it had cited on the prior
occasion.  /5/ 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 subdivision regulations (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 installing
underground electrical cables;  inadequate provisions were made for
fire protection;  recreational facilities, and open space for
multi-family 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 seeking damages and
injunctive relief against the Commission 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).
/6/
   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 regulations 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 nearly 300 additional lots (Tr. 1467-1468).  The jury found
that respondent had been deprived of the economically viable use of
its land that that the Commission therefore had unconstitutionally
taken respondent's property (Tr. 2015-2016, 2022-2027).  The jury also
found that the Commission was estopped under state law from applying
the present zoning regulations, rather than the 1973 regulations, to
the Temple Hills development (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 Hills (Pet. App.
29a-30a).
   The jury then awared $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. 2040-2043, 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 resulted
from an attempt by the local government to apply regulations in a
manner impermissible under state law" (Pet. App. 26a).
   In March 1983, while cross-appeals were pending, the Commission
approved a modified preliminary plat submitted by respondents (see
Pet. 8).  We understand that this approval was part of a settlement
agreement between the parties on the estoppel issue, under which the
Commission would permit respondent to develop 476 additional units and
grant variances from the 1973 regulations for certain cul-de-sacs and
road grades, and respondent 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. 1a-22a).  The
majority found sufficient evidence 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 majority 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-12a).  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 that petitioner had been denied
economically viable use of its land, especially because there was no
evidence that respondent had requested a variance and because it was
"virtually conceded" that, even under current standards, a total of
548 units would be approved for the Temple Hills tract (id. at
16a-17a).  He further concluded, however, that, the temporary
interference with respondent's expectations did not constitute a
taking, particularly since the Commission had determined that
respondent was not even in compliance with some restrictions that were
contained in the 1973 regulations (id. at 17a-20a).
                 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
appeals 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 contrary, the power
to do so is an essential attribute of sovereignty.  The Fifth
Amendment, which is applicable to the States through the Fourteenth
Amendment, /7/ provides only that private property shall not be taken
for public use "without just compensation." Compare Parratt v. Taylor,
451 U.S. 527, 537 (1981).  Nor does the Constitution require that
compensation precede the taking;  it is sufficient if there is a
procedure pursuant to which the person deprived of his property may
thereafter recover compensation.  Hurley v. Kincaid, 285 U.S. 95, 104
(1932);  Ruckelshaus v. Monsanto Co., No. 83-196 (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 constitutional 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;  id. 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, 451 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 "without jut compensation
being made therefor." Airt. I, Section 21.  To implement this
guarantee, state law permits a landowner to bring an action to recover
compensation for a taking that already has occurred (Tenn. Code Ann.
Section 29-16-123 (1980) ), and the Tennessee Court of Appeals has
stated that "(i)t is possible to recover in inverse condemnation for
unreasonable restriction of the use of property by enactment of a
zoning law." Davis v. Metropolitan Gov't, of Nashville, 620 S.W.2d
532, 534 (1981);  cf. 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 v. City of Tiburon, 447 U.S. 255, 259
(a980) ), the courts below erred in entertaining respondent's suit
under 42 U.S.C. 1983 seeking relief for an allegedly unconstitutional
taking.  See Suess Builders Co. v. City of Beaverton, 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 unwarranted 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, entertained
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 indication 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 restrictions that plainly permitted
substantial residential development on the remaining portions of the
Temple Hills tract is flatly inconsistent with the 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 substantial change in governing regulations,
no uniquely harsh impact on respondent, and no interference with
reasonable investment-backed expectations on respondent's part that it
would be permitted to develop additional lots without 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 challenged would have
resulted in a taking if they had been made permanently applicable to
respondent's land, it is clear that no taking occurred during the
limited period that elapsed until the district court held that the
Commission 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 not 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 PRIVATE PROPERTY
   After the Planning Commission declined to approve the preliminary
plat respondent submitted in June 1981, respondent did not revise its
submission in an effort to meet the Commission's concerns, did not
request a variance, and did not seek judicial review in state court.
Respondent instead immediately brought this action in federal 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 to pursue available procedures under state law,
there had been no final action by the State barring the development 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. 225 (1980), the Court held
that the mere enactment of the zoning ordinances under review did 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)
ecause 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
provisions." 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 proposal.  To the
contrary, the County Engineer testified at trial that the zoning
ordinance and subdivision regulations 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 opportunity to correct its own errors, to apply its
experience 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 or make the essentially "ad hoc, factual inquiries" required
in considering a taking claim.  See Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 295 (1981);  cf. Weinberger v. Salfi,
422 U.S. 749, 765-766 (1975).  Only then would the Commission's
decision applying the governing regulations to the particular parcel
have had sufficient formality, concreteness and finality to be
regarded 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
objects of the Commission within the limitations imposed by the zoning
ordinance and subdivision regulations in effect in 1981;  it also
failed to seek a variance from the application of those limitations.
The Board of Zoning Appeals was authorized to grant a variance where
unusual topographical conditions created "exceptional practical
difficulties" or "exceptional and undue hardship," if it could do so
"without substantially impairing the public good" (Ennn. Code Ann.
Section 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 relation
of the provisions governing 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 financially
feasible package.  /8/
   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 the landowners' taking challenge to
particular provisions of the Surface Mining Act was not ripe because
they might obtain administrative relief by seeking a variance.  See
452 U.S. at 297.  /9/ The decision in Virginia Surface Mining, like
that in Agins, thereofre 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 entered its
judgment, the Commission did approve a preliminary plat for 476
additional units as part of a settlement of respondent's estoppel
claim.  /10/ Because respondent'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 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
obtaining such review, /11/ then the Commission's decision did not
under state law constitute a final rejection by the State of
respondent's claim of a right to develop its property in conformity
with its submission.  Under the principles of Agins and Virginia
Surface Mining, just discussed, there was no ripe taking claim for
this additional reason as well.
   Pursuit of available state judicial remedies in these circumstances
would have affored the state courts an opportunity to construe and
apply state law and regulations in light of respondent's
constitutional contentions, perhaps "thereby obviating any need to
address the constitutional questions" (Virginia Surface Mining, 452
U.S. at 297 (footnote omitted)), or to grant relief on constitutional
grounds.  See City of Eastlake v. Forest City Enterprises, 426 U.S.
668, 677 (1976).  Moreover, if the state court had held the
Commission's action invalid on 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 Reorganization 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
district court in this case held that the Commission's actions 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/
 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 RESPONDENT'S PROPERTY
   If, contrary to our submission in Point A, the "taking" issue in
this case is ripe for resolution, the court of appeals' holding that
the Planning Commission's actions accomplished 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 taking if the ordinance does not
substantially advance legitimate state 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 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 Commission'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 formula" for
determining when "justice and fairness" require that economic injuries
caused by public action' must be deemed a compensable taking." Kaiser
Aetna v. United States, 444 U.S. 164, 175 (1979), quoting Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 124 (1978).  The
Court instead has considered a number of factors that fall into three
general categories:  (1) "the character of the governmental action,"
(2) "(t)he economic impact of the regulation," and (3) the extent to
which there has been an interference with "distinct investment-backed
expectations" (Penn Central, 438 U.S. at 124).
   1. "A 'taking' may more readily be found when the interference with
property can be characterized as a physical 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 burdents of economic life to
promote the common good" (438 U.S. at 124).  See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 437, 440-441
(1982).  The zoning ordinance and subdivision 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 program imposes
restrictions on a number of parcels and thereby enables the owner of
any particular parcel to 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 respondent's tract is the only
property in the County affected by the regulations.  Compare Virginia
Surface Mining, 452 U.S. at 281-282.  Moreover, while respondent'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 natural 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 "(g)overnment hardly could go on if
to some extent values incident to property could not be diminished
without paying for every such change in the general law" (Pennsylvania
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 subdivision regulations in effect in 1980 and the
other objections to the preliminary plat stated in the Commission'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 decisions "uniformly reject the proposition
that diminution in property value, standing alone, can establish a
'taking'" (Penn Central, 438 U.S. at 131).  See e.g., Euclid v. Ambler
Realty Co., 272 U.S. 365 (1926) (75% diminution in value caused by
zoning law);  Hadacheck v. Los Angeles, 239 U.S. 394 (1915) (87 1/2%
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 ordinance and subdivision
regulations did not require respondent to cease any existing use of
the land in its unimproved state.  Absent substantial indications to
the contrary, such unimproved land (and other land as well) is
generally held subject to the prospect that reasonable governmental
regulation may intervene in a manner that could restrict further
development of the land.  /13/ Accordingly, "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
untenable." Penn Central, 438 U.S. at 130.  /14/
   Moreover, in this case, there was no substantial change in the
relevant provisions of the zoning ordinance or subdivision 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
restrictions 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 significantly affect the use of the land for a
residential subdivision.  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 restrictions 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 not furnish even a colorable basis for a taking
claim.
   The court of appeals, in finding that a taking nevertheless
occurred by application of the more recent regulations, relied on
language in several opinions of this Court stating that application of
a general zoning ordinance may effect a taking if it "denies an owner
economically 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 appeals reasoned that a taking had occurred in
this case because application of the ordinance and regulations in
effect in 1981 and the other objections raised by the Commission would
mean that respondent would not make a profit -- and indeed would
experience a substantial loss -- 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 misunderstood the
meaning of the quoted phrase.
   This Court in Agins drew the phrase "economically viable use" from
a footnote in its opinion in Penn Central (see 447 U.S. at 260, citing
438 U.S. at 138 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 repair 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 company 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'" (438 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 obligation 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 unsound because of
market conditions, the marginal suitability of the land, or the
expense of installing the necessary improvements (cf. EPA v. National
Crushed Stone Ass'n, 449 U.S. 64, 75-78 (1980)) -- and that the
government must compensate the landowner if it fails to do so.  /15/
As this Court has said, "loss of future profits -- unaccompanied 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 Surface Mining and Kirby
Forest to suggest that the government 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 freedom to make use of or ability to
derive income from his land" (Kirby Forest, slip op. 12) -- i.e., to
affirmative governmental action that drastically interferes with a
recognized ability to exploit a substantial economic advantage 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. 393, 414-415 (1922);  cf. Armstrong v.
United States, 364 U.S. 40, 48 (1960).  /16/
   Agins, for example, involved five acres of extremely desirable
residential property that allegedly had the highest 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 constitute a taking, as least in the absence of weighty
countervailing 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 adverse economic
impact does not in itself render a regulatory 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 interest 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 "destroy" 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 concluded 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 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 investment-backed
expectation" in this case.  Respondent apparently 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 commission (Tenn. Code Ann. Section 13-3-402
(1980)), and the Commission's regulations in this case explicitly
provided that approval of the preliminary plat did not constitute
acceptance of the final plat (C.A. App. 872).  Moreover, the
preliminary plat itself contained a notation that indicated 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 payment 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 not 4, supra.  And respondent
purchased the remaining 258 acres at a foreclosure sale in November
1980, after the Commission had disapproved the developer's renewed
preliminary plat under the 1980 regulations.  See pages 5-6, supra.
Respondent had ample notice of the relevant circumstances, and it
therefore plainly had no constitutionally protected expectation that
it would be entitled to develop the remainder 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.  /17/
  C. THE AWARD OF DAMAGES FOR A "TEMPORARY TAKING" SHOULD BE REVERSED
   For the reasons we have explained in Point B, respondent'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 insubstantial 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 virture 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 appeals
reinstating the jury's award of $350,000 in damages for a taking of
respondent's property during that period therefore should be reversed.
   Accordingly, there once again /18/ is no occasion for the Court to
consider whether compensation must be paid for the temporary
application of a regulation that is subsequently 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
regulations in a manner impermissible under state law" (Pet. App.
26a).  This Court repeatedly has made clear, however, that a claim for
just compensation does not lie where the governmental action that is
alleged to have constituted a taking was not authorized.  See, e.g.,
Hooe v. United States, 218 U.S. 322, 336 (1910);  pages 16-17, supra.
Respondent therefore has no claim to just compensation for the
unauthorized actions by the Commission in 1980 and 1981, irrespective
of whether those actions are regarded as having imposed permanent or
temporary restrictions on 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.  /19/ We argued in our amicus briefs in Agins
and San Diego that the Constitution does not prohibit a state from
determining that, as a general matter, only prospective relief is
available in those circumstances.  We continue to be concerned about
the consequences of an inflexible constitutional rule that would
require the payment of compensation 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 existing
use of the property or prohibit him from selling it, but, at most,
simply had the effect of postponing the landowner's ability to devote
the property to new uses.  /20/ Nonetheless, relief might be
appropriate in particular cases involving such factors as unreasonable
delay, bad faith, or interference with a distinct investment-backed
expectation 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 questions 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 payment of compensation.  In light of the established
procedures 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 "distinct" 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 determination that the permanent application of the
regulatory measures in effect in 1981 would constitute a taking.  And
yet respondent was awarded $350,000 in damages for a temporary
diminution in the value of the 258 acres, which even respondent's own
expert testified were worth only $1,035,000 in 1982 (Tr. 679).  An
award of that magnitude is a windfall;  it is not one of those
"burdens 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 reversed.
   Respectfully submitted.
   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
   NANCY B. FIRESTONE
   KAREN L. FLORINI
      Attorneys
   NOVEMBER 1984
   /1/ The total number of allowable 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).
   /2/ The new regulations increased the minimum lot size from 9,000
square feet to 1/2 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).
   /3/ The Commission's staff had recommended disapproval on several
additional grounds, including (1) failure to conform to 1980
subdivision regulations pertaining to the length of cul-de-sacs, road
grades, minimum lot size, and road frontage;  (2) inadequacy of the
main access road;  and (3) failure to provide adequate fire protection
service and recreational facilities (J.A. 304-305).  However, a
committee that had been appointed by the Commission to assist the
developer in designing a suitable plat for Temple Hilss 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 holding company.  Respondent
participated in the loan in the amount of $900,000 (Tr. 774-779).
   In February 1976, Hamilton Bankshares, it 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).  Nevertheless, through a complicated series
of transactions involving the trustee in bankruptcy of the mortgage
subsidiary and the Federal Deposit Insurance Corporation (which was
liquidating the other banking subsidiary), Ancorp caused respondent to
acquire a 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 foreclosed following default on a 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 Hills
property to Jim Patterson, one of the original developers, for $3.6
million, receiving $1.2 million in cash 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 Temple Hills project (Tr. 787).
Although 60 houses were built on the tract in 1978, the project slowed
down after than date when the economy worsened and Patterson
experienced financial difficulties (Tr. 790).  Respondent foreclosed
on the mortgage and purchased the 258 acres at a sheriff's sale on
November 26, 1980, for $1.75 million (Tr. 796).  The balanced owed by
Patterson (including accrued interest) at the time of the foreclosure
was $2.87 million (Tr. 793).
   /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).  However, 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 General of Tennessee (No.
80-581 (Dec. 1, 1980)).
   /6/ 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.
   /7/ Chicago, B. & Q.R.R. v. Chicago, 166 U.S. 226, 239 (1897).
   /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, minimum
lot, and road frontage requirements of the 1980 subdivision
regulations.  See note 3, supra.
   /9/ See Freilich, Solving the "Taking" Equation:  Making the Whole
Equal the Sum of Its Parts, 15 Urb. Law. 447, 473 (1983) (footnotes
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 regulation.
      As of that time and until the landowner applies for a 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.
   /11/ Tennessee courts may review arbitrary zoning action by a
governmental body by means of the common law writ of certiorari.  See
Tenn. Code Ann. Section 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).
   /12/ The principles we have discussed in the text are not 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 Surface
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 regulation
under them could ignore established procedures for direct review 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 seeking 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), against
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 exception 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 payment of compensation under the Fifth Amendment.  A
person seeking to mine in such an area must seek an administrative
determination by the Interior Department as to whether he has a "valid
existing right," and that administrative decision is subject 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
administrative 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 claim
for just compensation.  This is but another aspect of the question,
discussed in Ruckelshaus v. Monsanto Co., slip op. 27, of whether
Congress intended for there to be a Tucker Act remedy in the
particular 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.
   /13/ The prospect that regulation may inhibit economic development
of a tract is all the more evident if the land was acquired or
retained for a substantial period of time while it was subject to a
regulatory 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 expectations 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 Hills 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 county
club/golf course and additional land has been devoted to 212 lots for
housing.  By focusing only on that portion of the development that has
not yet been sold off, the court ignored the requirement 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 can develop some part of the
property but is prohibited from developing another portion consisting
of ecologically sensitive wetlands).
   /15/ It is permissible for a locality 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 contribute
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 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 deprive the
owner of all or most of his interest in the subject matter").
   /17/ The jury's verdict that the Commission was estopped under
ordinary common law principles of course does not control the distinct
question of whether the Commission was constitutionally barred from
applying the amendments to the ordinance and regulations 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.
   /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.
   /20/ From the landowner's perspective, even if the permanent
application of a regulatory measure would effectively destroy his
interest in the property and thus consitute a taking, it would not
necessarily 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 quo pending
the resolution of a legal dispute over whether the development may go
forward.  Temporary application of the regulatory measure therefore
has essentially the same effect as a statutorily prescribed injunction
pendente lite.  The requirement that the landowner maintain 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 v. 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).