477 U.S.

340
106 S.Ct. 2561
91 L.Ed.2d 285

MacDONALD, SOMMER & FRATES, Appellant

v.
YOLO COUNTY et al.
No. 84-2015.
Argued March 26, 1986.
Decided June 25, 1986.
Rehearing Denied Sept. 3, 1986.

See 478 U.S. 1035, 107 S.Ct. 22.

Syllabus
Appellant submitted a proposal to the Yolo County Planning Commission
to subdivide certain property into 159 single-family and multifamily
residential lots. The Commission rejected the proposal, and the County
Board of Supervisors affirmed on the grounds that the proposal failed to
provide adequate public street access, sewer services, water supplies, and
police protection. Appellant then filed an action in California Superior
Court, alleging that appellee county and city restricted the property in
question to agricultural use by denying all subdivision applications and
thereby appropriated the "entire economic use" of the property for the sole
purpose of providing a public, open-space buffer. Appellant sought
declaratory and monetary relief. The court sustained a demurrer to the
complaint, holding that appellant's factual allegations were insufficient
and that monetary damages for inverse condemnation were foreclosed by
Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25
(1979), aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). The
California Court of Appeal affirmed, and the California Supreme Court
denied appellant's petition for hearing.
Held: Absent a final and authoritative determination by the County
Planning Commission as to how it will apply the regulations at issue to
the property in question, this Court cannot determine whether a "taking"
has occurred or whether the county failed to provide "just compensation."

Without knowing the nature and extent of permitted development, this

Court cannot adjudicate the constitutionality of the regulations that
purport to limit it. Pp. 348-353.
Affirmed.
STEVENS, J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. WHITE, J.,
filed a dissenting opinion, in which BURGER, C.J., joined and in Parts I,
II, and III of which POWELL and REHNQUIST, JJ., joined, post, p. 353.
REHNQUIST, J., filed a dissenting opinion in which POWELL, J., joined,
post, p. 364.
Howard N. Ellman, San Francisco, Cal., for appellant.
William L. Owen, Sacramento, Cal., for appellees.
[Amicus Curiae Information from page 341-342 intentionally omitted]
Justice STEVENS delivered the opinion of the Court.

The question presented is whether rejection of a subdivision proposal deprived

appellant of its property without just compensation contrary to the Fifth and
Fourteenth Amendments to the United States Constitution.1

* This appeal is taken from a judgment sustaining a demurrer to a property

owner's complaint for money damages for an alleged "taking" of its property. In
1975, appellant submitted a tentative subdivision map to the Yolo County
Planning Commission. Under appellant's proposal, the subject property, at least
part of which was planted with corn, would be subdivided into 159 singlefamily and multifamily residential lots.

The Yolo County Planning Commission rejected the subdivision plan,

however, and the Board of Supervisors of the county affirmed that
determination. The Board found numerous reasons why appellant's tentative
subdivision map was neither "consistent with the General Plan of the County of
Yolo, nor with the specific plan of the County of Yolo embodied in the Zoning
Regulations for the County." App. 73. Appellant focuses our attention on four
of those reasons. See id., at 45-46 (fourth amended complaint). First, the Board
criticized the plan because it failed to provide for access to the proposed
subdivision by a public street: the city of Davis, to which the subdivision would
adjoin, refused to permit the extension of Cowell Boulevard into the

development. See id., at 74. Even ignoring this obstacle, "[t]he map presented
ma[de] no provision for any other means of access to the subdivision," and the
Board calculated that relying on an extension of Cowell Boulevard alone would
"constitut[e] a real and substantial danger to the public health in the event of
fire, earthquake, flood, or other natural disaster." Id., at 77.
4

Second, the Board found that appellant's "Tentative Map as presented [did] not
provide for sewer service by any governmental entity":

"The only means for provision of sewer services by the El Macero interceptor
sewer require that the proposed subdivision anne[x] to the existing Community
Services Area. Said annexation is subject to Local Agency Formation
Commission jurisdiction. The Board finds that no proceedings currently are
pending before LAFCO for the annexation of the proposed subdivision." Id., at
75.

Third, the Board rejected the development plan because "[t]he level of [police]
protection capable of being afforded to the proposed site by the [Yolo County]
Sheriff's Department is not intense enough to meet the needs of the proposed
subdivision." Id., at 76. Fourth, the Board found inadequate the provision for
water service for the reason that there was "no provision made in the proposed
subdivision for the provision of water or maintenance of a water system for the
subdivision by any governmental entity." Ibid.

After this rebuff, appellant filed the present action and, on the same day, a
petition for a writ of mandate. The mandate action, which is still pending, seeks
to set aside the Board's decision and to direct the Board to reconsider
appellant's subdivision proposal. See id., at 32-33 (amended petition for writ of
mandate). This action, in contrast, seeks declaratory and monetary relief. In it,
appellant accuses appellees County of Yolo and city of Davis of "restricting the
Property to an open-space agricultural use by denying all permit applications,
subdivision maps, and other requests to implement any other use," id., at 46,
and thereby of appropriating the "entire economic use" of appellant's property
"for the sole purpose of [providing] . . . a public, open-space buffer," id., at 51.
In particular, the fourth amended complaint challenges the Board's decision
with respect to the adequacy of public access, sanitation services, water
supplies, and fire and police protection.2 Because appellees denied these
services, according to the complaint, "none of the beneficial uses" allowed even
for agricultural land would be suitable for appellant's property. Id., at 52. The
complaint alleged, in capital letters and "without limitation by the foregoing
enumeration," that "any application for a zone change, variance or other relief
would be futile." Id., at 58. The complaint also alleged that appellant had

"exhausted all of its administrative remedies" and that its seven causes of action
were "ripe" for adjudication. Id., at 58, 59.
8

In response to these charges appellees demurred.3 Pointing to "its earlier Order

Sustaining Demurrers and Granting Leave to Amend," the California Superior
Court contended that "the property had obvious other uses than agriculture
under the Yolo County Code," id., at 115, and referenced sections permitting
such uses, among others, as ranch and farm dwellings and agricultural storage
facilities, see Yolo County Code 8-2.502, 8-2.503. The court rejected
appellant's "attemp[t] to overcome that defect by alleging as conclusionary fact
that each and every principal use and each and every multiple accessory use is
no longer possible so that the property does have no value as zoned." App. 115.
It concluded that, irrespective of the insufficiency of appellant's factual
allegations, monetary damages for inverse condemnation are foreclosed by the
California Supreme Court's decision in Agins v. City of Tiburon, 24 Cal.3d
266, 274-277, 157 Cal.Rptr. 372, 376-378, 598 P.2d 25, 29-31 (1979), aff'd,
447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). App. 116, 118. 4

The California Court of Appeal affirmed. It "accept[ed] as true all the properly
pled factual allegations of the complaint," id., at 126, and did "not consider
whether the complaint was barred by the failure to exhaust administrative
remedies or by res judicata," id., at 125-126. But it "f[ou]nd the decision in
Agins to be controlling herein," id., at 130:

10

"In that case the [California] Supreme Court specifically and clearly
established, for policy reasons, a rule of law which precludes a landowner from
recovering in inverse condemnation based upon land use regulation. We
emphasize that the Court did not hold that regulation cannot amount to a taking
without compensation, it simply held that in such event the remedy is not
inverse condemnation. The remedy instead is an action to have the regulation
set aside as unconstitutional. Plaintiff has filed a mandate action in the trial
court which is currently pending. That is its proper remedy. The claim for
inverse condemnation cannot be maintained." Id., at 130-131 (citation and
footnote omitted).

11

In the alternative, the California Court of Appeal determined that appellant

would not be entitled to monetary relief even if California law provided for this
remedy:

12

"In any event, even if an inverse condemnation action were available in a land
use regulation situation, we would be constrained to hold that plaintiff has

failed to state a cause of action. Pared to their essence, the allegations are that
plaintiff purchased property for residential development, the property is zoned
for residential development, plaintiff submitted an application for approval of
development of the property into 159 residential units, and, in part at the urging
of the City, the County denied approval of the application. In these allegations
plaintiff is not unlike the plaintiffs in Agins . . . [a case in which] both the
California Supreme Court and the United States Supreme Court held that the
plaintiffs had failed to allege facts which would establish an unconstitutional
taking of private property.
13

"The plaintiff's claim here must fail for the same reasons the claims in Agins
failed. Here plaintiff applied for approval of a particular and relatively intensive
residential development and the application was denied. The denial of that
particular plan cannot be equated with a refusal to permit any development, and
plaintiff concedes that the property is zoned for residential purposes in the
County general plan and zoning ordinance. Land use planning is not an all-ornothing proposition. A governmental entity is not required to permit a
landowner to develop property to [the] full extent he might desire or be charged
with an unconstitutional taking of the property. Here, as in Agins, the refusal of
the defendants to permit the intensive development desired by the landowner
does not preclude less intensive, but still valuable development. Accordingly,
the complaint fails to state a cause of action." Id., at 132-133 (citation
omitted).5

14

The California Supreme Court denied appellant's petition for hearing, and
appellant perfected an appeal to this Court. Because of the importance of the
question whether a monetary remedy in inverse condemnation is
constitutionally required in appropriate cases involving regulatory takings, we
noted probable jurisdiction. 474 U.S. 917, 106 S.Ct. 244, 88 L.Ed.2d 253
(1985). On further consideration of our jurisdiction to hear this appeal, aided by
briefing and oral argument, we find ourselves unable to address the merits of
this question.

II
15

The regulatory takings claim advanced by appellant has two components. First,
appellant must establish that the regulation has in substance "taken" his
property6 that is, that the regulation "goes too far." Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). See Kaiser
Aetna v. United States, 444 U.S. 164, 178, 100 S.Ct. 383, 392, 62 L.Ed.2d 332
(1979). Second, appellant must demonstrate that any proffered compensation is
not "just."

16

It follows from the nature of a regulatory takings claim that an essential

prerequisite to its assertion is a final and authoritative determination of the type
and intensity of development legally permitted on the subject property. A court
cannot determine whether a regulation has gone "too far" unless it knows how
far the regulation goes. As Justice Holmes emphasized throughout his opinion
for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S., at 416, 43 S.Ct., at
160, "this is a question of degreeand therefore cannot be disposed of by
general propositions." Accord, id., at 413, 43 S.Ct., at 159. To this day we have
no "set formula to determine where regulation ends and taking begins."
Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130
(1962). Instead, we rely "as much [on] the exercise of judgment as [on] the
application of logic." Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 326, 62
L.Ed.2d 210 (1979). Our cases have accordingly "examined the 'taking'
question by engaging in essentially ad hoc, factual inquiries that have identified
several factorssuch as the economic impact of the regulation, its interference
with reasonable investment-backed expectations, and the character of the
governmental actionthat have particular significance." Kaiser Aetna v.
United States, 444 U.S., at 175, 100 S.Ct., at 390. See Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659,
57 L.Ed.2d 631 (1978) ("ad hoc, factual inquiries"); United States v. Central
Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228
(1958) ("question properly turning upon the particular circumstances of each
case"). Until a property owner has "obtained a final decision regarding the
application of the zoning ordinance and subdivision regulations to its property,"
"it is impossible to tell whether the land retain[s] any reasonable beneficial use
or whether [existing] expectation interests ha[ve] been destroyed." Williamson
Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 190, n. 11, 105 S.Ct.
3108, 3116, 3118, n. 11, 87 L.Ed.2d 126 (1985). As we explained last Term:

17

"[T]he difficult problem [is] how to define "too far," that is, how to distinguish
the point at which regulation becomes so onerous that it has the same effect as
an appropriation of the property through eminent domain or physical
possession. . . . [R]esolution of that question depends, in significant part, upon
an analysis of the effect the Commission's application of the zoning ordinance
and subdivision regulations had on the value of respondent's property and
investment-backed profit expectation. That effect cannot be measured until a
final decision is made as to how the regulations will be applied to respondent's
property." Id., at 199-200, 105 S.Ct., at 3123 (footnote omitted).

18

Accord, id., at 191, 105 S.Ct., at 3119.

19

For similar reasons, a court cannot determine whether a municipality has failed

to provide "just compensation" until it knows what, if any, compensation the

responsible administrative body intends to provide. See id., at 195, 105 S.Ct., at
3121 ("[T]he State's action here is not 'complete' until the State fails to provide
adequate compensation for the taking" (footnote omitted)). The local agencies
charged with administering regulations governing property development are
singularly flexible institutions; what they take with the one hand they may give
back with the other. In Penn Central Transportation Co. v. New York City, for
example, we recognized that the Landmarks Preservation Commission, the
administrative body primarily responsible for administering New York City's
Landmarks Preservation Law, had authority in appropriate circumstances to
authorize alterations, remit taxes, and transfer development rights to ensure the
landmark owner a reasonable return on its property. See 438 U.S., at 112-115,
and n. 13, 98 S.Ct., at 2653-2655, and n. 13. Because the railroad had "not
sought approval for a smaller structure" than its proposed 50-plus story office
building, id., at 137, 98 S.Ct., at 2665; see id., at 137, n. 34, 98 S.Ct., at 2666,
n. 34, and because its development rights in the airspace above its Grand
Central Station Terminal were transferable "to at least eight parcels in the
vicinity of the Terminal, one or two of which ha[d] been found suitable for the
construction of a new office building," id., at 137, 98 S.Ct., at 2666, we
concluded that "the application of New York City's Landmarks Law ha[d] not
effected a 'taking' of [the railroad's] property," id., at 138, 98 S.Ct., at 2666.
Whether the inquiry asks if a regulation has "gone too far," or whether it seeks
to determine if proffered compensation is "just," no answer is possible until a
court knows what use, if any, may be made of the affected property.7
20

Our cases uniformly reflect an insistence on knowing the nature and extent of
permitted development before adjudicating the constitutionality of the
regulations that purport to limit it. Thus, in Agins v. Tiburon, 447 U.S. 255, 100
S.Ct. 2138, 65 L.Ed.2d 106 (1980), we held that zoning ordinances which
authorized the development of between one and five single-family residences
on appellants' 5-acre tract did not effect a taking of their property on their face,
and, because appellants had not made application for any improvements to their
property, the constitutionality of any particular application of the ordinances
was not properly before us. See id., at 260, 100 S.Ct., at 2141. Similarly, in San
Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67
L.Ed.2d 551 (1981), we dismissed the appeal because it did not appear that the
city's rezoning and adoption of an open space plan had deprived the utility of
all beneficial use of its property. See id., at 631-632, and n. 12, 101 S.Ct., at
1293-1294, and n. 12. Because the California Court of Appeal had "not decided
whether any taking in fact ha[d] occurred, . . . further proceedings [were]
necessary to resolve the federal question whether there has been a taking at all."
Id., at 633, 101 S.Ct., at 1294. As a consequence, the judgment was not final

for purposes of our jurisdiction under 28 U.S.C. 1257. Ibid. Most recently, in
Williamson Planning Comm'n v. Hamilton Bank, we held that the developer's
failure either to seek variances that would have allowed it to develop the
property in accordance with its proposed plat, or to avail itself of an available
and facially adequate state procedure by which it might obtain "just
compensation," meant that its regulatory taking claim was premature.
21

Here, in comparison to the situations of the property owners in the three

preceding cases, appellant has submitted one subdivision proposal and has
received the Board's response thereto. Nevertheless, appellant still has yet to
receive the Board's "final, definitive position regarding how it will apply the
regulations at issue to the particular land in question." Williamson Planning
Comm'n v. Hamilton Bank, 473 U.S., at 191, 105 S.Ct., at 3119. In Agins, San
Diego Gas & Electric, and Williamson Planning Comm'n, we declined to reach
the question whether the Constitution requires a monetary remedy to redress
some regulatory takings because the records in those cases left us uncertain
whether the property at issue had in fact been taken. Likewise, in this case, the
holdings of both courts below leave open the possibility that some development
will be permitted,8 and thus again leave us in doubt regarding the antecedent
question whether appellant's property has been taken. 9

22

Affirmed.

23

Justice WHITE, with whom THE CHIEF JUSTICE joins and with whom
Justice POWELL and Justice REHNQUIST join as to Parts I, II, and III,
dissenting.

24

The Court acknowledges that we noted probable jurisdiction in this case "
[b]ecause of the importance of the question whether a monetary remedy in
inverse condemnation is constitutionally required in appropriate cases involving
regulatory takings," ante, at 348, but avoids this issue by holding that the
antecedent questionwhether appellant adequately stated a takings claim
should be answered in the negative. I disagree. The factual allegations that we
must consider, when the opinion below is correctly read, do state a takings
claim and therefore present the remedial question that we have thrice before
sought to resolve. See Williamson County Regional Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); San
Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67
L.Ed.2d 551 (1981); Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65
L.Ed.2d 106 (1980).

25

* The Court recognizes that "the complaint alleged that appellant was deprived

25

* The Court recognizes that "the complaint alleged that appellant was deprived
of all beneficial use of its property," ante, at 352, n. 8, but concludes:

26

"The California Court of Appeal, whose opinion on matters of local law and
local pleading we must respect, cf. Agins v. Tiburon, 447 U.S. 255, 259-260, n.
5, 100 S.Ct. 2138, 2140-2141, n. 5, 65 L.Ed.2d 106 (1980), apparently rejected
what the Superior Court labeled a 'conclusionary' allegation of futility, and
explained that appellant could seek an administrative application of the Yolo
County General Plan and Zoning Ordinances to its property which, for aught
that appears, would allow development to proceed." Ibid.

27

The Court thus ignores the allegations in the complaint that the effect of the
county's denial of appellant's subdivision application in conjunction with the
reasons behind that denial and other actions taken by the appellees has been to
deprive the appellant of any use of its property "which is not (a) economically
infeasible, (b) prohibited by law, or (c) prevented by actions taken by [the
appellees]." Fourth Amended Complaint, App. 46. The Court also disregards
appellant's allegation that the actions of the appellees demonstrate "That any
application for a zone change, variance or other relief would be futile." Id., at
58. Instead, the Court focuses on the denial of the particular subdivision
application alone.

28

In my view, the Court does not fairly read the record and the opinion below.
Appellant's initial complaint filed in Superior Court alleged that although the
property was zoned for residential use by the county it was designated an
"Agricultural Preserve or Reserve" by the city. The complaint further alleged
that even though the property lay in the county outside of the city's boundaries,
the county implemented city policy relegating the land to agricultural uses. See
Complaint of Oct. 13, 1977, pp. 9-12. Finally, the complaint asserted that the
property was agriculturally impaired and could not economically be used for
agricultural purposes. See id., at 5, 16.

29

In sustaining the appellees' demurrer to this complaint, the Superior Court

accepted as true the allegation that the property had effectively been rezoned
agricultural but noted that there was no allegation that the property could not be
used for a variety of nonagricultural purposes explicitly allowed in agricultural
zones under the county and city codes. See Order of Mar. 30, 1978, in No.
36655 (Cal.Super.Ct., Yolo County) pp. 6-8. The conclusion was that "[t]he
failure to allege the property in question useless for other permitted purposes in
an agricultural zone over and above an agricultural use renders the [inverse
condemnation cause of action] demurrable." Id., at 8.

30

In the Fourth Amended Complaint, the complaint that formed the basis for the
judgment below, appellant responded to this earlier ruling by specifically
alleging that the property was not suitable for the other uses permitted in an
agricultural zone and by asserting facts in support of this allegation. See App.
52-58. The Superior Court, however, indicated that it found these allegations
"conclusionary," although it did not rely on this determination in sustaining the
demurrer to the complaint, relying instead on the California Supreme Court's
general ruling in Agins v. City of Tiburon, 24 Cal.3d 266, 272-277, 157
Cal.Rptr. 372, 375-378, 598 P.2d 25, 28-31 (1979), aff'd on other grounds, 447
U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), that no inverse condemnation
action may be brought as a result of a land use regulation.1 The crucial fact here
is that the Superior Court denominated "conclusionary" only those allegations
in the complaint that rejected the possibility of feasible nonagricultural uses of
the property that would be consistent with agricultural zoning. It did not
categorize as "conclusionary" appellant's allegations that all economically
beneficial residential uses were foreclosed by the appellees' actions.

31

In reviewing the Superior Court's ruling on the demurrer to the Fourth

Amended Complaint, the California Court of Appeal first noted that it would
not consider whether the complaint was barred by the failure to exhaust
administrative remedies or by res judicata. App. 125-126. It then summarized
the allegations of the complaint, including the allegations that the property was
not suitable for agricultural use or any of the other uses permitted in the county
code and that it was suitable for residential use but that the county and city had
acted to prevent this use entirely. Id., at 127-129. The Court of Appeal also
noted that appellant had alleged that "[a]ny application for a zone change,
variance or other relief would be futile." Id., at 129. Nowhere did the court state
that as a matter of California demurrer law it was rejecting any of these
allegations as not properly pleaded. And nowhere did it refer to the Superior
Court's statement that the allegations as to the infeasibility of the
nonagricultural uses that would be consistent with agricultural zoning might not
be properly pleaded.

32

Having recited all of these allegations without indicating that it was rejecting
any of them, the Court of Appeal first held that no cause of action was stated in
inverse condemnation. This holding, it noted, was compelled by the California
Supreme Court's ruling in Agins that there is no such remedy for takings alleged
to result from land use regulation. Id., at 130-132. See Agins, 24 Cal.3d, at 272277, 157 Cal.Rptr., at 376-378, 598 P.2d, at 28-31.

33

In the alternative, however, the Court of Appeal found that even if such a cause

of action were available, appellant had not stated a takings claim. The court
concluded that "[p]ared to their essence, the allegations are that [appellant]
purchased property for residential development, the property is zoned for
residential development, [appellant] submitted an application for approval of
development of the property into 159 residential units, and, in part at the urging
of the City, the County denied approval of the application." App. 132. The
court then observed that this situation was "not unlike" that in Agins, in which a
zoning ordinance that restricted a landowner of five acres to building a
maximum of five residences on his property was found not to constitute a
taking since on its face the ordinance still allowed that level of development,
which was a reasonable use of the property. See Agins, 447 U.S., at 262-263,
100 S.Ct., at 2142-2143; Agins, 24 Cal.3d, at 277, 157 Cal.Rptr., at 378, 598
P.2d, at 31. Citing Agins, the Court of Appeal then determined that appellant
had not stated a takings cause of action because appellees' refusal to allow the
intensive development requested by appellant "does not preclude less intensive,
but still valuable development." App. 133.
34

In my view, given the absence of any expression of disapproval by the Court of

Appeal of any of the appellant's allegations summarized in its opinion and
given the fact that the Superior Court had not labeled appellant's allegations of
futility "conclusionary," there is no reason to read into this last statement by the
Court of Appeal a state-law ruling that the allegations of futility were not well
pleaded. Instead, the Court of Appeal's focus on what it termed the essence of
appellant's complaint together with its conclusion that with respect to these
essential allegations this case was analytically the same as Agins imply that it
believed that as a matter of federal takings law certain allegations controlled in
terms of determining if a takings claim had been stated. Specifically, in
concluding that the allegations of futility were not material and in determining
that under Agins further application must be made before a takings claim could
be stated, the Court of Appeal held that no takings cause of action had been
stated because no reapplication had been made, even if further application
would be useless.

II
35

Whether a regulatory taking has occurred is an inquiry that cannot be

completed until a final decision is made as to how the allegedly confiscatory
regulations apply to the pertinent property. Williamson County, Regional
Planning Comm'n, 473 U.S., at 190-191, 105 S.Ct., at 3118-3119. Thus, in
Penn Central Transportation Co. v. New York City, 438 U.S. 104, 136-137, 98
S.Ct. 2646, 2665-2666, 57 L.Ed.2d 631 (1978), and in Agins, supra, 447 U.S.,
at 262-263, 100 S.Ct., at 2142-2143, we considered for takings purposes only

the actual regulatory decision that had been made by the governmental
decisionmaker; we declined to speculate as to further restrictions that might be
imposed. In Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452
U.S. 264, 293-297, 101 S.Ct. 2352, 2369-2371, 69 L.Ed.2d 1 (1981), we
refused to consider a takings claim based on general regulatory provisions that
had not yet been applied to specific properties and that were susceptible of
administrative exemption. Most recently, in Williamson County, Regional
Planning Comm'n, the Court determined that the denial of a particular use for a
property did not constitute a final decision where variance procedures were
available that "[left] open the possibility that [the landowner] may develop the
subdivision according to its plat after obtaining the variances." 473 U.S., at
193-194, 105 S.Ct., at 3120.
36

These holdings recognize that a regulatory takings determination is closely tied

to the facts of a particular case and that there is often an ongoing process by
which the relevant regulatory decisions are made. Given these characteristics of
a regulatory taking, the final decision requirement is necessary to ensure that
"the initial decisionmaker has arrived at a definitive position on the issue that
inflicts an actual, concrete injury." Id., at 193, 105 S.Ct., at 3120. Nothing in
our cases, however, suggests that the decisionmaker's definitive position may
be determined only from explicit denials of property-owner applications for
development. Nor do these cases suggest that repeated applications and denials
are necessary to pinpoint that position.

37

Moreover, I see no reason for importing such a requirement into the "final
decision" analysis. A decisionmaker's definitive position may sometimes be
determined by factors other than its actual decision on the issue in question. For
example, if a landowner applies to develop its land in a relatively intensive
manner that is consistent with the applicable zoning requirements and if the
governmental body denies that application, explaining that all development will
be barred under its interpretation of the zoning ordinance, I would find that a
final decision barring all development has been madeeven though the
landowner did not apply for a less intensive development. Although a
landowner must pursue reasonably available avenues that might allow relief, it
need not, I believe, take patently fruitless measures.

38

The Court of Appeal's reliance on Agins in this case was therefore misplaced.
Appellant alleged not simply that its application had been denied but that the
overall effect of (1) that denial, (2) the reasons given for the denial, and (3)
other actions taken by appellees to prevent appellant from ever being able to
meet county development requirements was that appellant's property had been
taken. When the Court of Appeal purported to reduce appellant's claim to its

essence, it ignored a critical distinction between Agins, in which there was no

indication that upon application the property owner would not be allowed to
develop his property in some economically beneficial manner, and the factual
situation here, in which further application would allegedly be futile. In this
case, I believe that appellant sufficiently alleged a final decision denying it all
reasonable economically beneficial use of its property.2
III
39

Assuming that appellant adequately alleged a final decision, the next question
is whether a takings cause of action was stated by the allegations in the
complaint. Discerning the answer to this question involves two separate
inquiries: Whether a land use regulation restricting the use of property may
ever amount to a taking and, if the answer to this first inquiry is affirmative,
whether the allegations here are sufficient to state a takings claim.

40

As to the first question, our cases have long indicated that police-power
regulations may rise to the level of a taking if the restrictions they impose are
sufficiently severe. See, e.g., Agins, 447 U.S., at 260, 100 S.Ct., at 2141;
PruneYard Shopping Center v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 2041,
64 L.Ed.2d 741 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 174-175,
100 S.Ct. 383, 389-390, 62 L.Ed.2d 332 (1979); Andrus v. Allard, 444 U.S. 51,
65-66, 100 S.Ct. 318, 326-327, 62 L.Ed.2d 210 (1979); Penn Central, supra,
438 U.S., at 130-131, 138, n. 36, 98 S.Ct., at 2662, 2663-2666, n. 36; United
States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2
L.Ed.2d 1228 (1958); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-416,
43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). Nevertheless, the California Supreme
Court in Agins concluded:

41

"[A] landowner alleging that a zoning ordinance has deprived him of

substantially all use of his land may attempt through declaratory relief or
mandamus to invalidate the ordinance as excessive regulation in violation of the
Fifth Amendment to the United States Constitution He may not, however, elect
to sue in inverse condemnation and thereby transmute an excessive use of the
police power into a lawful taking for which compensation in eminent domain
must be paid." 24 Cal.3d, at 273, 157 Cal.Rptr., at 375, 598 P.2d at 28.3

42

In addition to being inconsistent with this Court's statements, this view, as

Justice BRENNAN explained in his dissent in San Diego Gas, ignores the fact
that

43

"[p]olice power regulations such as zoning ordinances and other land-use

43

"[p]olice power regulations such as zoning ordinances and other land-use

restrictions can destroy the use and enjoyment of property in order to promote
the public good just as effectively as formal condemnation or physical invasion
of property. From the property owner's point of view, it may matter little
whether his land is condemned or flooded, or whether it is restricted by
regulation to use in its natural state, if the effect in both cases is to deprive him
of all beneficial use of it. From the government's point of view, the benefits
flowing to the public from preservation of open space through regulation may
be equally great as from creating a wildlife refuge through formal
condemnation or increasing electricity production through a dam project that
floods private property. . . . It is only logical, then, that government action other
than acquisition of title, occupancy, or physical invasion can be a 'taking,' and
therefore a de facto exercise of the power of eminent domain, where the effects
completely deprive the owner of all or most of his interest in the property." 450
U.S., at 652-653, 101 S.Ct., at 1304-1305 (citations and footnotes omitted).

44

I agree that land use restrictions may constitute a taking under the Constitution.

45

This resolution of the general question brings me to the more specific question
whether the allegations in the complaint here were sufficient to state a takings
claim. Here, appellant alleged the existence of a final decision denying it all
economically beneficial use of its property. It also alleged that it had paid
"good and valuable consideration," App. 43, for the property. Factual
allegations of interference with reasonable investment-backed expectations and
denial of all economically feasible use of the property are certainly sufficient
allegations of a regulatory taking to state a cause of action. See, e.g., Penn
Central, 438 U.S., at 136-138, 98 S.Ct., at 2665-2666. Consequently, I would
hold that appellant adequately alleged a taking.

IV
46

The final question presented is whether a State can limit to declaratory and
injunctive relief the remedies available to a person whose property has been
taken by regulation or whether the State must pay compensation for the interim
period between the time that the government first "took" the property and the
time that the "taking" is rescinded by amendment of the regulation.4 On this
question, I am again in substantial agreement with Justice BRENNAN's
discussion in San Diego Gas. See 450 U.S., at 653-660, 101 S.Ct., at 13041308. Even where a property owner is deprived of its property only
temporarily, if that deprivation amounts to a taking the Constitution requires
that just compensation be paid. If the governmental body that has taken the
property decides to rescind the taking by amending the regulation, that does not
reverse the fact that the property owner has been deprived of its property in the

interim. "[I]t is only fair that the public bear the cost of benefits received during
the interim period between application of the regulation and the government
entity's rescission of it." Id., at 656-657, 101 S.Ct., at 1306-1307. Thus, just
compensation must be available for the period between the time of the final
decision taking the property and the time that that decision is rescinded.
47

I recognize that such a constitutional rule admits of problems of administration

that are by no means insignificant. Aside from the problems that the Court has
already addressed in some measure regarding the determination of when a
taking shall be deemed to have occurred, there are questions of valuation and of
procedure. As to the latter, the Constitution requires no particular procedures,
although as the Court today notes, "[a] property owner is of course not required
to resort to piecemeal litigation or otherwise unfair procedures in order to obtain
this determination." Ante, at 350, n. 7. As to the former, the issue of what
constitutes just compensation in this context is a particularly meaty one, which
merits substantial reflection and analysis. Nevertheless, these unsettled
questions should not deter us from acting to protect constitutional requirements
in this type of case. Consequently, I would vacate the judgment below and
remand for further proceedings not inconsistent with the views I have
expressed.

V
48

In sum, I believe that the Court of Appeal's decision is most properly read as
taking as true all of the allegations in the complaint, including the allegations of
futility, and as rejecting those allegations as insufficient as a matter of
substantive takings law. At the very least, the Court's reading of the opinion
below, however plausible, is not the only sensible reading of that opinion.
Given this arguable ambiguity, I would not, as the Court does, withdraw from
appellant all chance of relief at this stage. That is, if the Court of Appeal in fact
did reach its judgment by the reasoning I have summarized rather than as the
Court hypothesizes, appellant should not be precluded from seeking relief on
the facts currently alleged in the complaint. I would at least vacate the
judgment below and remand for explanation by the Court of Appeal as to the
precise basis for its judgment.

49

Justice REHNQUIST, with whom Justice POWELL joins, dissenting.

50

I agree with Justice WHITE that the Court of Appeal's opinion is best read as
rejecting appellant's allegations as a matter of substantive takings law; that
appellant sufficiently alleged a final decision denying it all beneficial use of its
property; that a land use regulation restricting the use of property may amount

to a taking; and that the allegations here are sufficient to state a takings claim.
Accordingly, I join Parts I, II, and III of his dissenting opinion. As Justice
WHITE recognizes in Part IV of his opinion, the questions surrounding what
compensation, if any, is due a property owner in the context of "interim"
takings are multifaceted and difficult. I would not reach these questions without
first permitting the courts below to address them in light of the fact that
appellant has sufficiently alleged a taking.

The Fifth Amendment provides "nor shall private property be taken for public
use, without just compensation." The Fifth Amendment prohibition applies
against the States through the Fourteenth Amendment. See Chicago, B. & Q.R.
Co. v. Chicago, 166 U.S. 226, 236, 239, 241, 17 S.Ct. 581, 584, 585, 586, 41
L.Ed. 979 (1897). See also Williamson Planning Comm'n v. Hamilton Bank,
473 U.S. 172, 175 n. 1, 105 S.Ct. 3108, 3111, n. 1, 87 L.Ed.2d 126 (1985); San
Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 623, n. 1, 101 S.Ct.
1287, 1289, n. 1, 67 L.Ed.2d 551 (1981).

"25. In determining that Plaintiff's land could only be used for agricultural
purposes, notwithstanding its general planning and zoning designation for
residential use and its suitability therefor, County determined that (i) the
Property lacked access by means of suitable public streets, a condition resulting
from City's deliberate refusal to permit or approve available access; (ii) the
[P]roperty lacked sanitary sewer service, a condition resulting directly from the
wrongful acts of City, County and District above alleged[;] (iii) the Property
lacked adequate water supply, a finding directly contrary to the fact (in
evidence before County) that there are proven sources of supply on the
Property and in the vicinity thereof which serve the immediately adjacent
residential areas[;] and (iv) that the Property lacked adequate fire and police
services, conditions attributable in part to refusal on part of County and City to
provide such services." App. 51-52.

In California, "those factual allegations of the complaint which are properly

pleaded are deemed admitted by defendant's demurrer." Thompson v. County of
Alameda, 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 72, 614 P.2d 728, 730 (1980).
"However," a demurrer "does not admit contentions, deductions or conclusions
of fact or law alleged therein." Daar v. Yellow Cab Co., 67 Cal.2d 695, 713, 63
Cal.Rptr. 724, 737, 433 P.2d 732, 745 (1967) (citations omitted). See, e.g.,
Serrano v. Priest, 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 605, 487 P.2d 1241,
1245 (1971); Chicago Title Ins. Co. v. Great Western Financial Corp., 69
Cal.2d 305, 327, 70 Cal.Rptr. 849, 863, 444 P.2d 481, 495 (1968); Sych v.
Insurance Co. of North America, 173 Cal.App.3d 321, 326, 220 Cal.Rptr. 692,

695 (1985); Read v. City of Lynwood, 173 Cal.App.3d 437, 442, 219 Cal.Rptr.
26, 28 (1985). Thus, one intermediate California appellate court has sustained a
demurrer to a complaint alleging a regulatory taking on jurisdictional grounds,
notwithstanding an "allegation in [appellants'] complaint that they 'have
exhausted their administrative remedies' "; for "while a demurrer admits all
material facts which are properly pleaded, it does not admit conclusions of fact
or law alleged therein. Appellants' conclusionary statement that they exhausted
their administrative remedies therefore cannot avail them." Pan Pacific
Properties, Inc. v. County of Santa Cruz, 81 Cal.App.3d 244, 251, 146 Cal.Rptr.
428, 432 (1978) (citation omitted). Cf. Hecton v. People ex rel. Dept. of
Transportation, 58 Cal.App.3d 653, 657, 130 Cal.Rptr. 230, 232 (1976) (same;
allegations of taking and damage).
4

We understand the Superior Court to have sustained the demurrer both because
the complaint failed properly to plead facts amounting to a taking and because
California law does not provide a monetary remedy for a regulatory taking. The
Superior Court, after explaining these two reasons, concluded simply that "[t]he
complaint fails to state a proper cause of action for inverse condemnation."
App. 116. Although Justice WHITE's dissent treats the first reason as dicta and
the second as the actual basis of decision, see post, at 355-356, since the
Superior Court did not rest its holding on only one of its two stated reasons, it is
appropriate to treat them as alternative bases of decision.

In answer to appellant's 42 U.S.C. 1983 claim, the California Court of Appeal

similarly held that a monetary judgment was foreclosed by Agins, and that "
[e]ven if a cause of action for monetary damages could be stated under the
Civil Rights Act based upon the regulation of the use of property, the
allegations would be insufficient in this case:
"Plaintiff seeks compensation because the County refused approval of the
intensive development it desires, but that refusal does not mean that other, less
intensive uses would also be denied. Accordingly plaintiff has not alleged facts
sufficient to establish an uncompensated taking of its property." App. 135.

We accept for the purposes of deciding this case that any taking was for a
public purpose, as alleged in the complaint. See id., at 50. See also id., at 51,
60.

A property owner is of course not required to resort to piecemeal litigation or

otherwise unfair procedures in order to obtain this determination. See
Williamson Planning Comm'n v. Hamilton Bank, 473 U.S., at 205-206, 105
S.Ct., at 3126 (STEVENS, J., concurring in judgment); United States v.
Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789 (1947).

Appellant's current complaintas authoritatively construed by the California

Court of Appealalleged the denial of only one intense type of residential
development. Appellant does not contend that only improvements along the
lines of its 159-home subdivision plan would avert a regulatory taking. Rather,
the complaint alleged that appellant was deprived of all beneficial use of its
property. See App. 51, 60, 65. The California Court of Appeal, whose opinion
on matters of local law and local pleading we must respect, cf. Agins v.
Tiburon, 447 U.S. 255, 259-260, n. 5, 100 S.Ct. 2138, 2140-2141, n. 5, 65
L.Ed.2d 106 (1980), apparently rejected what the Superior Court labeled a
"conclusionary" allegation of futility, and explained that appellant could seek
an administrative application of the Yolo County General Plan and Zoning
Ordinances to its property which, for aught that appears, would allow
development to proceed.
Justice WHITE's dissent reluctantly concludes that our understanding of the
Court of Appeal's decision is "plausible" and "sensible," but insists that the
Court of Appeal's decision is "most properly read as taking as true all of the
allegations in the complaint, including the allegations of futility, and as
rejecting those allegations as insufficient as a matter of substantive takings
law." Post, at 363. We disagree. Both state courts upheld appellees' demurrer
on the ground that not all development had been foreclosed. Thus, the Superior
Court apparently accepted appellant's submission that its property was restricted
to agricultural use but held that, even so, valuable use might still be made of the
land. The Court of Appeal was unwilling to concede even this much: it noted
that appellant's property was zoned residential and held that valuable residential
development was open to it. These holdings that there is no total prohibition
against the productive use of appellant's land cannot possibly be reconciled
with the allegations in the complaint that "any beneficial use" is precluded,
App. 46, and that future applications would be futile, id., at 58. In view of the
fact that these allegations were necessarily rejected by the state courts, and that
the parties' briefs disclose a permissible basis for this disposition in settled
California demurrer law, see n. 3, supra; see also Brief for Respondents in 3
Civil 22306 (Cal.Ct.App., Third App.Dist., July 10, 1984), pp. 25, 27;
Memorandum of Points and Authorities in Support of Demurrer to Fourth
Amended Complaint in No. 36655 (Cal.Super.Ct., Yolo County, Dec. 18,
1981), 4 Clerk's Tr., pp. 888-889, 912, n. 2, 914, it does not matter that the state
courts neglected to "expressly disapprove" the deficient allegations or to detail
the particular reasons why, see post, at 357.
Remarkably, the dissent implies that the Court of Appeal accepted the
complaint's allegations that local regulations denied appellant all beneficial use
of its property and that further regulatory proceedings would be fruitless, but
nonetheless required it to file further "useless" applications to state a taking

claim. Ibid. Whatever purpose such a requirement might serve, futile

reapplications are not contemplated by the Court of Appeal. To begin with, this
requirement is not, as the dissent maintains, suggested by the Court of Appeal's
reliance on the decisions of the California Supreme Court and of this Court in
Agins. See App. 132.
To the contrary, the Court of Appeal relied on the decisions in Agins to
illustrate that the property owners thereas herehad not "attempt[ed] to
obtain approval to . . . develop the land" in accordance with applicable zoning
regulations and for this reason had "failed to allege facts which would establish
an unconstitutional taking of private property." Id., at 132-133. See 447 U.S., at
259-263, 100 S.Ct., at 2140-2142; 24 Cal.3d 266, 277, 157 Cal.Rptr. 372, 378,
598 P.2d 25, 31 (1979). The implication is not that future applications would be
futile, but that a meaningful application has not yet been made. The dissent's
supposition that the Court of Appeal accepted the allegations of taking and
futility is further contradicted by the court's express denial that submission of a
less intensive application would be futile: "the refusal of the [appellees] to
permit the intensive development desired by the landowner does not preclude
less intensive, but still valuable development." App. 133.
9

Appellant is thus in the same position Mr. and Mrs. Agins would have
occupied if they had requested and been denied the opportunity to build five
Victorian mansions for their single-family residences, or if San Diego Gas &
Electric Co. had asked and been denied the option of building a nuclear
powerplant. Rejection of exceedingly grandiose development plans does not
logically imply that less ambitious plans will receive similarly unfavorable
reviews. In this case, of course, we have statements from both courts below
dispelling any doubt on this point.

The Superior Court also sustained the demurrer on the ground that appellant
had failed to exhaust administrative and judicial remedies; that the county's
denial of appellant's subdivision application was res judicata not subject to
collateral attack in the Superior Court; and that no taking in the form of actual
"invasion or appropriation of a cognizably valuable property right" had been
alleged. App. 111, 116.

I emphasize that the futility of further application would have to be proved at

trial for appellant to prevail here on the merits. I address only the question
whether appellant's allegations of futility are sufficient support for assuming
that a final decision has been made.

Although the California Supreme Court's ruling in Agins rests on the rationale
that excessive land use regulation simply cannot constitute a lawful taking, the

Court of Appeal in this case seemed to proceed on the assumption that such
regulation could constitute a taking but that no inverse condemnation remedy
for such a taking would be available. See App. 131. My discussion here follows
the reasoning given by the California Supreme Court in Agins rather than the
somewhat inexact summary of that reasoning given by the Court of Appeal
below.
4

I assume here that the normal action by the governmental entity following a
determination that a particular regulation constitutes a taking will be to rescind
the regulation. I believe that this is a permissible course of action, limiting
liability for the taking to the interim period. See San Diego Gas & Electric Co.
v. San Diego, 450 U.S. 621, 658, 101 S.Ct. 1287, 1307, 67 L.Ed.2d 551 (1981)
(BRENNAN, J., dissenting). Of course, the governmental entity could actually
condemn the property and pay permanent compensation for it.