No. 99-2047 

In the Supreme Court of the United States 

ANTHONY PALAZZOLO, PETITIONER 

v. 

RHODE ISLAND, ET AL. 

ON WRIT OF CERTIORARI 
TO THE SUPREME COURT OF RHODE ISLAND 

BRIEF FOR THE UNITED STATES AS AMICUS 
CURIAE SUPPORTING RESPONDENTS 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
LOIS J. SCHIFFER 

Assistant Attorney General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
MALCOLM L. STEWART 

Assistant to the Solicitor 

General 
WILLIAM B. LAZARUS 
R. JUSTIN SMITH 

Attorneys 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether the Supreme Court of Rhode Island per- 
missibly treated petitioner’s takings claim as unripe, where 
that takings claim was based on the State’s purported 
refusal to allow large-scale residential development on peti- 
tioner’s property and petitioner had never sought per- 
mission from the appropriate state officials to construct 
residences. 

2. Whether petitioner can establish a taking of property 
through proof that his land would dramatically increase in 
value if longstanding development restrictions were re- 
moved, even though the restrictions were in effect at the 
time petitioner acquired the property and the land retains 
substantial value notwithstanding the restrictions. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 1 

Summary of argument .................................................................. 

7 

Argument ........................................................................................ 9 

I. The Supreme Court of Rhode Island permissibly 
held that petitioner’s claim for just compensa- 
tion was unripe ................................................................ 
11 

II. Petitioner cannot establish a taking of property 
simply by proving that his land would dramati- 
cally increase in value if development restric- 
tions that predate his acquisition of the land 
were eliminated ............................................................... 
21 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ................... 
12 

Agins v. Tiburon, 447 U.S. 255 (1980) ............................... 
26 

Armstrong v. United States, 364 U.S. 40 (1960) .......... 
10, 24 

Brown v. Western Ry. of Ala., 338 U.S. 294 
(1949) ........................................................................................ 13 

Concrete Pipe & Prods. of Cal., Inc. v. Construction 

Laborers Pension Trust for S. Cal., 508 U.S. 602 
(1993) ........................................................................................ 22 

Connolly v. Pension Benefit Guaranty Corp., 475 

U.S. 211 (1986) ........................................................................ 
24 

Dolan v. City of Tigard, 512 U.S. 374 (1994) ................ 
10, 22 

Felder v. Casey, 487 U.S. 131 (1988) .................................. 
13 

FTC v. Standard Oil Co., 449 U.S. 232 (1980) .................. 
12 

Hodel v. Irving, 481 U.S. 704 (1987) .................................... 
26 

Howlett v. Rose, 496 U.S. 356 (1990) .................................. 
13 

Kirby Forest Indus., Inc. v. United States, 
467 U.S. 1 (1984) ................................................................. 10, 25 

(III) 

IV 

Cases—Continued: Page 

Leslie Salt Co. 
v. Froehlke, 578 F.2d 742 (9th Cir. 

1978) ......................................................................................... 20 

Loretto v. Teleprompter Manhattan CATV Corp., 
458 U.S. 419 (1982) ............................................................ 

10, 29 

Lucas v. South Carolina Coastal Council, 505 U.S. 
1003 (1992) ....................................................................... 
passim 

Lujan v. National Wildlife Fed’n, 497 U.S. 871 
(1990) ........................................................................................ 12 

MacDonald, Sommer & Frates v. Yolo County, 
477 U.S. 340 (1986) ..................................................... 

11, 12, 14 

Nollan v. California Coastal Comm’n, 483 U.S. 825 
(1987) ....................................................................... 

10, 25, 28, 29 

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 
(1998) ........................................................................................ 12 

Penn Cent. Transp. Co. v. New York City, 438 

U.S. 104 (1978) ................................................................ 
7, 22, 23 

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 
(1922) ...................................................................................... 
9, 26 

Regional Rail Reorganization Act Cases, 419 U.S. 
102 (1974) ................................................................................. 
23 

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 
725 (1997) ............................................................................. 
11, 12 

Toilet Goods Ass’n v. Gardner, 387 U.S. 158 
(1967) ...................................................................................... 12-13 

United States v. Riverside Bayview Homes, 
474 U.S. 121 (1985) ................................................................ 

20 

Village of Arlington Heights v. Metropolitan 

Hous. Dev. Corp., 429 U.S. 252 (1977) .............................. 

13 

Weinberger v. Salfi, 422 U.S. 749 (1975) ............................ 
19 

Williamson County Reg’l Planning Comm’n v. 

Hamilton Bank, 473 U.S. 172 (1985) ........... 6, 10, 11, 21, 24 

V 

Constitution and statutes: 

Page 

U.S. Const. Amend. V (Just Compensation Clause) .......... 
1, 10, 

22, 24 

Clean Water Act § 404, 33 U.S.C. 1344 ................................. 
20 
Coastal Zone Management Act of 1972, 16 U.S.C. 1451 
et seq. ........................................................................................ 
1, 3 

16 U.S.C. 1452(2)(A) ......................................................... 
1, 3 

Rivers and HarborsAppropriation Act of 1899 
§ 10, 33 U.S.C. 403 ................................................................. 
20 

R.I. Gen. Laws §§ 46-23-1 et seq. (1956) ................................ 
3 

Miscellaneous: 

State of Rhode Island Coastal Resources Management 

Program: 
§ 130 .................................................................................... 

15 
§ 130A ................................................................................. 
15 

§ 130A(1) .................................................................... 
3, 15, 16 

§ 210.3C .............................................................................. 
3, 15 

§ 300.1 ................................................................................. 
16 

§ 300.3(B) ........................................................................... 
17 

§ 300.3(B)(1) ...................................................................... 
17 

§ 300.3(B)(2) ...................................................................... 
17 

§ 320(C)(6) .......................................................................... 17 

In the Supreme Court of the United States 

No. 99-2047 

ANTHONY PALAZZOLO, PETITIONER 

v. 
RHODE ISLAND, ET AL. 

ON WRIT OF CERTIORARI 
TO THE SUPREME COURT OF RHODE ISLAND 

BRIEF FOR THE UNITED STATES AS AMICUS 
CURIAE SUPPORTING RESPONDENTS 

INTEREST OF THE UNITED STATES 

This case presents both procedural and substantive ques- 
tions concerning the application of the Just Compensation 
Clause of the Fifth Amendment to restrictions on develop- 
ment in coastal wetlands. The Coastal Zone Management 
Act of 1972 (CZMA), 16 U.S.C. 1451 et seq., establishes a 
national policy of protecting the resources of the Nation’s 
coastal zone and encouraging States to adopt coastal man- 
agement programs that, inter alia, seek to provide for “the 
protection of natural resources, including wetlands.” 16 
U.S.C. 1452(2)(A). In addition, federal agencies are vested 
by various statutes with the responsibility to determine the 
scope and type of development that will be permitted in 
environmentally sensitive areas, including wetlands. 

STATEMENT 

1. The site at the center of this dispute consists of some 
18 acres of coastal wetlands, and an adjacent area of “no 
more than a few additional upland acres,” in the Town of 
Westerly, Rhode Island. Pet. App. A2, A3 n.1. In 1959, 
petitioner, along with two business associates, purchased the 
site for $8000 and transferred it to Shore Gardens, Inc. 

(1) 

2 

(SGI). See id. at A2, B2. Petitioner was president of SGI; in 
1960, he became sole shareholder. Id. at A2. The Town 
approved a plat subdividing the site into 80 lots; 11 of those, 
“apparently in the upland area of the parcel,” were sold to 
various purchasers, for amounts that are not clear on the 
record. Ibid. In 1969, SGI re-acquired five of the lots for 
$5000. Id. at A2, B2. Houses have been built on at least 
some of the other six lots. J.A. 79. In February 1978, SGI’s 
corporate charter was revoked because annual reports re- 
quired by state law had not been filed. Def. Exh. Y; see Pet. 
App. A3, B4. 

As the Rhode Island Supreme Court explained, 

[s]ome of the lots laid out in the subdivision plat include a 
substantial amount of land that is under the waters of 
Winnipaug Pond. Additional land that is not perma- 
nently under water is subject to daily tidal inundation, 
and “ponding” in small pools occurs throughout the wet- 
lands. The area serves as a refuge and feeding ground 
for fish, shellfish, and birds, provides a buffer for flood- 
ing, and absorbs and filters run-off into the pond. 

Pet. App. A3. In 1962 and 1963, petitioner applied for per- 
mission to fill the site with material dredged from Winna- 
paug Pond. Id. at A3, B2.1 In 1966, he filed a new appli- 
cation, seeking permission to dredge the Pond and fill tidal 
marshland areas in order to construct a recreational beach 
facility. Id. at A4, B2. In 1971 the State’s Division of 
Harbors and Rivers (DHR) authorized petitioner to proceed 
with one plan or the other. Id. at A4, B2-B3. Shortly 

1 “At the time of these two applications, there was no statutory 
requirement that any state agency approve the filling of coastal wetlands, 
but a party wishing to dredge a river or pond was required to gain 
approval of [the State’s Division of Harbors and Rivers (DHR)].” Pet. 
App. A3-A4. In 1965, however, the Rhode Island legislature enacted new 
statutory provisions that transferred the DHR to the newly-created 
Department of Natural Resources (DNR) and gave the DNR the author- 
ity to restrict filling in coastal wetlands. Id. at A3 & n.2, A4. 

3 

thereafter, however, the agency revoked that approval. Id. 
at A4, B3. Petitioner did not appeal from or otherwise 
challenge that decision. Ibid. 

In 1971, the Rhode Island legislature created the Coastal 
Resources Management Council (CRMC) and gave that body 
authority to regulate filling of coastal wetlands. R.I. Gen. 
Laws §§ 46-23-1 et seq (1956). In 1972, Congress enacted the 
Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. 
1451 et seq. The CZMA establishes a national policy of 
protecting the resources of the Nation’s coastal zone. The 
Act encourages States to adopt coastal management pro- 
grams that, inter alia, seek to provide for “the protection of 
natural resources, including wetlands.” 16 U.S.C. 1452(2)(A). 

In 1977, the CRMC promulgated the Coastal Resources 
Management Program (CRMP). The CRMP generally 
prohibits the filling of coastal wetlands (like petitioner’s) 
adjacent to Type 2 waters. See CRMP § 210.3C. The CRMP 
provides, however, for “special exceptions,” under which an 
applicant may obtain permission to fill such wetlands by 
demonstrating, inter alia, that the project provides benefits 
“to the public as a whole as opposed to individual or private 
interests.” Id. § 130A(1). 

In 1983, petitioner applied to the CRMC for permission to 
construct a bulkhead on the shore of the Pond and fill the 
wetlands on the site. Pet. App. A5, B3. The stated purpose 
of the project was to control erosion. J.A. 60. The proposed 
filling activities would have included areas both above and 
below the mean high water mark. J.A. 60-61. Testifying 
before a subcommittee of the CRMC, petitioner refused to 
identify the use that he intended to make of the property if it 
was filled. J.A. 10-11. The CRMC denied the application. 
J.A. 14-19. The agency’s decision explained that “[d]rawings 
submitted and on file at our office are vague and inadequate 
for a project of this size and nature,” J.A. 16; that “the 
proposed activities will have significant impacts upon the 
waters and wetlands of Winnapaug Pond,” J.A. 17; and that 

4 

the record revealed “a complete lack of evidence demon- 
strating to this Council the need and demand for the 
proposed activity,” ibid. 

In 1985, petitioner filed a new application to fill approxi- 
mately 12 acres of wetlands on the property in order to 
construct a private beach club, including parking for 50 cars 
with boat trailers, a dumpster, port-a-johns, picnic tables, 
concrete barbecue pits, and trash receptacles. See J.A. 20- 
21, 25. Based in part on biological and engineering reports 
assessing the suitability of the location for the proposed 
activities (see J.A. 20-23), the CRMC denied the application. 
J.A. 25-30. The CRMC explained, inter alia, that “[t]he 
highly compressible nature of mucky peat makes this soil 
complex undesirable for parking or roadway base. The 
Rhode Island Soil Survey for the area notes a Poor Rating. 
Additionally, storm surge flooding and recession would cause 
major sedimentation within the Pond.” J.A. 26. The CRMC 
also observed that “[f]illing of the marsh would destroy the 
natural shoreline protection, decrease sediment trapping and 
accretion, decrease flood storage, eliminate or greatly reduce 
nutrient retention in the area.” J.A. 27. The Council 
concluded that petitioner had failed to establish that the 
proposed project would be consistent with the CRMP and 
that his application should therefore be denied. J.A. 27-29. 
The state superior court sustained the CRMC’s decision. 
See J.A. 31-42. 

2. In 1988, petitioner filed an inverse condemnation 
action in the state superior court, contending that the 
CRMC’s denial of his development applications had effected 
a taking of property without just compensation, in violation 
of the United States and Rhode Island Constitutions. Pet. 
App. A5, B3-B4; see J.A. 43-46 (1995 amended complaint). 
Petitioner “sought damages in the amount of $3,150,000, 
based on the profits he claimed he would receive from filling 
the wetlands and developing the property as seventy-four 
lots for single-family homes.” Pet. App. A5. 

5 

The superior court dismissed the suit. Pet. App. B1-B13. 
The court found that petitioner “as the sole stockholder of 
SGI was not the owner of the subject property until 1978, 
when the Secretary of State revoked SGI’s corporate 
status.” Id. at B8. The court held that “[b]ecause [peti- 
tioner] obtained title to the subject property in 1978, and 
because the regulations that prohibited the filling of wet- 
lands were in place at that time, [petitioner] cannot prevail 
in his claim that the CRMC’s actions constituted a categori- 
cal taking of his property when it denied the [petitioner’s] 
1985 application to fill wetlands on the subject property.” Id. 
at B9. The court also noted that uncontradicted evidence 
introduced at trial indicated that the upland portion of the 
property was suitable for development; that the property if 
developed would have a value of approximately $200,000; 
and that the property would have a value of approximately 
$157,500 as an open-space gift. Id. at B9-B10. 

As an alternative basis for its decision, the trial court 
concluded that petitioner could not establish a compensable 
taking even if he could prove a loss of all beneficial use of the 
property, since his proposed development would constitute a 
public nuisance. The court explained: 

The CRMC introduced evidence that the filling of 18 
acres of salt marsh would reduce the existing salt marsh 
in Winnapaug Pond by 12 percent. In addition, the 
evidence showed that a 12 percent reduction in the salt 
marsh in Winnapaug Pond would cause a reduction in the 
commercial and recreational shellfish and finfish popula- 
tions in Rhode Island. 

Moreover, the evidence indicated 

that the 12 percent loss of the total salt marsh filtering in 
the Winnapaug Pond will have a significant detrimental 
impact on the existing salt marsh filtering mechanisms 
within the pond which could be expected to result in 
increased harmful nitrate levels within the pond. The 
evidence illustrated that high levels of nitrate in 

6 

groundwater poses a public health threat because 
groundwater is the sole source of drinking water. There- 
fore, based on evidence of the probability of an increase 
in nitrate levels in Winnapaug Pond and the threat to 
groundwater, and based on the evidence that the [peti- 
tioner’s] proposal would not be suitable for the locality of 
the subject property, this Court finds that the [peti- 
tioner’s] proposal would constitute a public nuisance. 

Pet. App. B10-B11. 

3. The Supreme Court of Rhode Island affirmed. Pet. 
App. A1-A18. 

a. The court first held that petitioner’s takings claim was 
not ripe for review. Pet. App. A9-A12. It explained that 

although [petitioner] claimed that his property was taken 
when he was denied permission to develop a seventy- 
four-lot subdivision, he never applied for permission to 
develop such a subdivision. His 1966 and 1985 applica- 
tions sought to fill the wetlands so he could construct a 
beach club. His 1963 and 1983 applications sought per- 
mission to fill the wetlands, with no statement describing 
what he intended to do with the land when it was filled. 
In fact, during the hearings on the 1983 application, he 
specifically stated that he had no plans to build on the 
filled land. Because [petitioner] has not applied for per- 
mission to develop a seventy-four-lot subdivision, he has 
not received a “final decision regarding the application of 
the regulations to the property at issue.” 

Id. at A11 (quoting Williamson County Reg’l Planning 
Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985)). 

The court’s ripeness holding was also based in part “on the 
fact that [petitioner] has not sought permission for less 
ambitious development plans.” Pet. App. A11. The court 
stated that “[u]ntil [petitioner] has explored development 
options less grandiose than filling eighteen acres of salt 
marsh, he cannot maintain a claim that the CRMC has 

7 

deprived him of all beneficial use of the property.” Id. at 
A11-A12. 

b. While noting that its “determination that the claim 
was not ripe is dispositive of the case,” the Rhode Island 
Supreme Court also “briefly discuss[ed] the merits of 
[petitioner’s] claim.” Pet. App. A12. The court sustained the 
trial court’s finding that petitioner had not been deprived of 
all beneficial use of the property in question. Id. at A12-A13. 
The court relied on the “undisputed evidence * * * that 
had [petitioner] developed the upland portion of the land, its 
value would have been $200,000,” and noted that petitioner’s 
allegation of an anticipated profit of $3,150,000 was 
“speculative.” Id. at A13.2 The court also stated that “when 
[petitioner] became the owner of this land in 1978, state laws 
and regulations already substantially limited his right to fill 
wetlands. Hence, the right to fill wetlands was not part of 
the title he acquired.” Id. at A15. Finally, the court held 
that petitioner could not establish a taking under the multi- 
factor test established by this Court’s decision in Penn Cen- 
tral Transportation Co. v. New York City, 438 U.S. 104, 123- 
128 (1978), explaining that petitioner’s “lack of reasonable 
investment-backed expectations is dispositive in this case.” 
Pet. App. A17. 

SUMMARY OF ARGUMENT 

I. This Court has repeatedly held that a regulatory 
takings claim is generally unripe until the landowner has 

2 The court explained: 

It was revealed at oral argument that the town’s current zoning law 
would not permit seventy-four lots to be developed on only eighteen 
acres. Further, there was no evidence that [petitioner] would be able 
to obtain the necessary permits for the installation near Winnipaug 
Pond of the number of septic systems that his proposed development 
would require. Thus, it is clear that his anticipated “profit” was 
unrealistically optimistic. 

Pet. App. A13 n.7. 

8 

sought permission to develop his property and has received a 
final decision from the relevant land-use agency. As in other 
areas of administrative law, enforcement of ripeness princi- 
ples protects the agency from premature judicial interfer- 
ence, and it ensures that if litigation is ultimately required, 
the reviewing court will have the benefit of the agency’s 
expertise. 

In the instant case, the Supreme Court of Rhode Island 
reasonably concluded that petitioner’s takings claim was 
unripe. Petitioner’s 1985 application for permission to con- 
struct a beach club did not propose any form of residential 
development, and it contemplated filling of a substantial 
majority of the wetlands on the parcel. Notwithstanding the 
agency’s denial of that application, substantial uncertainty 
remains concerning the type and extent of development that 
would be permitted on petitioner’s property. And because 
petitioner’s 1985 beach club application bore no resemblance 
to the hypothetical subdivision that formed the basis of his 
takings claim, the trial court was forced to rely on extrinsic 
evidence regarding the manner in which the CRMC and 
other land-use regulators would likely have applied their 
rules to development proposals that petitioner never pre- 
sented to the appropriate agency. 

II. If this Court concludes that the Supreme Court of 
Rhode Island was required to regard petitioner’s takings 
claim as ripe, that claim nevertheless fails on the merits. 
The current value of petitioner’s property is many times the 
amount that SGI paid for it. Petitioner has wholly failed to 
demonstrate that Rhode Island’s adoption of wetlands pro- 
tective measures has caused any diminution in the value of 
his parcel; his claim is simply that the tract would have 
appreciated much more dramatically if development on the 
site were unrestricted. That claim, even if true, would be 
patently inadequate to establish a compensable taking. 

The Supreme Court of Rhode Island noted that petitioner 
had acquired the subject property after the State’s adoption 

9 

of the CRMP, and it treated that fact as an independent 
ground for rejecting petitioner’s takings claim. We agree 
that where a purchaser chooses to acquire property that is 
subject to heightened regulatory oversight, application of 
the pre-existing regime does not subject the owner to the 
type of unfairness that must underlie a regulatory takings 
claim. That is especially so where, as here, the regulatory 
regime codifies background principles of public nuisance law. 
Petitioner contends that a person who acquires property 
after a regulatory restriction has been imposed thereby 
acquires the right to pursue any regulatory takings claim 
that the prior owner might have asserted. But plainly no 
general rule exists that every potential constitutional claim 
must be freely and fully assignable. In any event, petitioner 
has entirely failed to establish that SGI—the prior owner of 
the subject property—had any takings claim to assign. 

ARGUMENT 

As this Court recognized in Lucas v. South Carolina 
Coastal Council, 505 U.S. 1003, 1028 n.15 (1992), “early con- 
stitutional theorists did not believe the Takings Clause 
embraced regulations of property at all.” Rather, until the 
Court’s decision in Pennsylvania Coal Co. v. Mahon, 260 
U.S. 393 (1922), “it was generally thought that the Takings 
Clause reached only a ‘direct appropriation’ of property, or 
the functional equivalent of a ‘practical ouster of [the 
owner’s] possession.’ ” 
Lucas, 505 U.S. at 1014 (citations 

omitted). This Court has since concluded, however, that 
even where an owner is not divested of title to or possession 
of real property, land-use regulation may effect a com- 
pensable taking if it trenches too severely upon the preroga- 
tives that have traditionally accompanied ownership. See id. 
at 1014-1019. In particular, regulation that deprives the 
owner of all economically beneficial use of land typically re- 
quires the payment of just compensation even though it does 
not involve a “direct appropriation” of the property involved. 

10 

Id. at 1015-1016.3 In determining whether a regulatory 
measure goes “too far,” thereby effecting a compensable 
taking, the court’s task is “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.” Williamson County Reg’l Planning 
Comm’n v. Hamilton Bank, 473 U.S. 172, 185 (1985). 

The Just Compensation Clause “was designed to bar Gov- 
ernment from forcing some people alone to bear public 
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); see also Kirby Forest Indus., Inc. v. United 
States, 467 U.S. 1, 14 (1984). Where a landowner actively 
seeks to use his property, and is prevented from doing so by 
regulation so severe as to deprive the land of all beneficial 
use, the Fifth Amendment’s just compensation requirement 
prevents the costs of that regulation from being unfairly 
concentrated on discrete individuals. In adjudicating claims 
for just compensation, however, courts should be cognizant 
of the danger that landowners with no actual interest in 
developing their property, or no realistic prospect of doing 
so, may hypothesize development activities that they know 
to be prohibited, and then seek “compensation” for the ban. 
A judicial order mandating payment in that circumstance 
would not serve to distribute more equitably the burdens of 
government regulation; it would confer a windfall upon a 
landowner who has in fact suffered no constitutionally cogni- 
zable injury, at the expense of the community as a whole. 

In the instant case, petitioner’s claim of a compensable 
taking is premised on the assertion that the State’s 
regulatory scheme has prohibited him from constructing a 

3 The Court has similarly concluded that regulation will be deemed a 
per se taking if it entails a permanent physical occupation of real property. 
See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 384 (1994); Nollan v. Cal- 
ifornia Coastal Comm’n, 483 U.S. 825, 831-832 (1987); Loretto v. Tele- 
prompter Manhattan CATV Corp., 458 U.S. 419, 426, 434-435, 441 (1982). 

11 

74-unit residential development on his parcel. Yet petitioner 
never submitted an application for any residential develop- 
ment, and nothing in the record suggests that petitioner had 
any actual desire or ability to undertake such a major 
project. Petitioner has also failed to establish (or even to 
allege) that the State’s adoption of wetlands regulations 
rendered the subject property less valuable than it had 
previously been. Finally, those wetlands regulations, which 
are firmly rooted in background principles traditionally 
reflected in nuisance law, were already in effect when peti- 
tioner succeeded to ownership of the property in 1978. For 
each of those independent reasons, the judgment of the 
Supreme Court of Rhode Island should be affirmed. 

I. THE SUPREME COURT OF RHODE ISLAND PER- 
MISSIBLY HELD THAT PETITIONER’S CLAIM 
FOR JUST COMPENSATION WAS UNRIPE 

A. This Court has repeatedly held that “a claim that the 
application of government regulations effects a taking of a 
property interest is not ripe until the government entity 
charged with implementing the regulations has reached a 
final decision regarding the application of the regulations to 
the property at issue.” Williamson County, 473 U.S. at 186; 
accord, e.g., MacDonald, Sommer & Frates v. Yolo County, 
477 U.S. 340, 351 (1986) (“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.”).4 That rule “responds 
to the high degree of discretion characteristically possessed 

4 A “facial” takings challenge–-i.e., a contention that the mere enact- 
ment of a statute or regulation effects a taking of property–is “generally 
ripe the moment the challenged regulation or ordinance is passed.” 
Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736 n.10 (1997). 
Such a challenge “face[s] an uphill battle” (ibid.), however, and petitioner 
does not contend that the mere enactment of the CRMP (or any predeces- 
sor wetlands protective measure) effected a taking of his property. 

12 

by land-use boards in softening the strictures of the general 
regulations they administer,” which makes it particularly 
difficult for a court to assess the extent of development that 
will be permitted simply through inspection of the pertinent 
statutes and regulations. Suitum v. Tahoe Reg’l Planning 
Agency, 520 U.S. 725, 738 (1997); see also MacDonald, 477 
U.S. at 350. 

At least in its general outlines, the Court’s treatment of 
takings claims is consonant with ripeness principles that 
apply in other settings. In the context of the Administrative 
Procedure Act (APA), for example, this Court has held that 

a regulation is not ordinarily considered the type of 
agency action “ripe” for judicial review under the APA 
until the scope of the controversy has been reduced to 
more manageable proportions, and its factual compo- 
nents fleshed out, by some concrete action applying the 
regulation to the claimant’s situation in a fashion that 
harms or threatens to harm him. 

Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891 (1990). 
The “basic rationale” of ripeness doctrine “is to prevent the 
courts, through avoidance of premature adjudication, from 
entangling themselves in abstract disagreements over ad- 
ministrative policies, and also to protect the agencies from 
judicial interference until an administrative decision has 
been formalized and its effects felt in a concrete way by the 
challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 
148-149 (1967). Ripeness principles serve in part to protect 
the courts from involvement in litigation that might turn out 
to be unnecessary if the administrative process alleviates the 
plaintiff’s concern. See, e.g., Ohio Forestry Ass’n v. Sierra 
Club, 523 U.S. 726, 736 (1998); FTC v. Standard Oil Co., 449 
U.S. 232, 242 (1980). Adherence to those principles also 
ensures that if judicial involvement is ultimately required, 
the nature and practical consequences of agency policy will 
be clear to the reviewing court. See, e.g., Toilet Goods Ass’n 

13 

v. Gardner, 387 U.S. 158, 164 (1967) (“judicial appraisal of 
[the relevant] factors is likely to stand on a much surer 
footing in the context of a specific application of this regula- 
tion than could be the case in the framework of the 
generalized challenge made here”). 

B. The instant case arises out of an inverse condemnation 
action filed by petitioner in a Rhode Island trial court. This 
Court has described as “unassailable” the general rule that 
“States may establish the rules of procedure governing liti- 
gation in their own courts.” Felder v. Casey, 487 U.S. 131, 
138 (1988). The application of state procedural rules to 
federal claims may be preempted if those rules “impose 
unnecessary burdens upon rights of recovery authorized by 
federal laws.” Id. at 150 (quoting Brown v. Western Ry. of 
Ala., 338 U.S. 294, 298-299 (1949)).5 State courts neverthe- 
less have a degree of latitude to apply their own procedural 
rules to claims arising under federal law, even where state 
rules differ from those governing litigation in the federal 
courts, and even where the effect of a state rule is to 
preclude adjudication of a claim that a federal court would 
have found appropriate for resolution. See, e.g., Village of 
Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 
U.S. 252, 262 n.8 (1977). Thus, in order to obtain reversal of 
the state court’s ripeness holding, petitioner must demon- 
strate that some principle of federal law required the 
Supreme Court of Rhode Island to treat his takings claim as 
ripe, notwithstanding this Court’s customary deference to 
state court procedural requirements. Petitioner has failed to 
make that showing. 

5 State courts may not refuse to adjudicate a federal cause of action 
based on disagreement with the content of federal law. See, e.g., Howlett 

v. Rose, 496 U.S. 356, 371 (1990). But nothing of that sort has happened 
here. Petitioner raised takings claims under both the United States and 
Rhode Island Constitutions, see Pet. App. A2, and the Supreme Court of 
Rhode Island drew no distinction between the federal- and state-law 
claims. 

14 

C. Petitioner’s takings claim is premised on the CRMC’s 
denial of his 1985 application for permission to fill approxi- 
mately 12 acres of wetlands to construct a beach club. See 
Pet. Br. 8 n.3. Notwithstanding the agency’s denial of that 
application, however, “the nature and extent of permitted 
development” (MacDonald, 477 U.S. at 351) on petitioner’s 
property remain far from clear. That application did not 
propose any form of residential development, and it 
contemplated filling of a substantial majority of the wetlands 
on the parcel. In addition, the 1985 beach club proposal did 
not involve any development of the upland segment of the 
property, which retained development potential even if all 
filling of the wetlands was prohibited. 

Petitioner contends (Br. 13) that “the uncontradicted evi- 
dence was that CRMC would continue to deny [petitioner] 
permission to alter any of the 18 acres of wetlands, thereby 
precluding any development of that portion, but would not 
deny him permission to build one single-family home on the 
small upland portion of his property.” He asserts on that 
basis that the “type and intensity of development legally 
permitted on [petitioner’s] 18-plus acres of land is perfectly 
clear: one single-family home and nothing more.” Pet. Br. 13 
(internal quotation marks omitted). The record does not 
support that assertion. 

The record contains evidence of at least two upland areas 
on petitioner’s property. See Tr. 190-191, 199-200, 210-212, 
610. Because petitioner never sought permission to under- 
take residential development on any portion of the land, 
neither the CRMC nor other relevant agencies (see pp. 16-17 
& note 8, infra) were ever called upon to determine the ex- 
tent of allowable construction. But there was surely a realis- 
tic prospect that petitioner might have received permission 
to build several houses on the upland areas of the site.6 

6 Nothing in the pertinent state court opinions is to the contrary. The 
trial court identified uncontradicted testimony indicating that one upland 

15 

Even with respect to the wetlands portion of the subject 
property, the record does not establish that the CRMC’s 
denial of petitioner’s 1985 permit application was premised 
on an absolute ban on the placement of fill. The CRMP 
generally prohibits the filling of wetlands adjacent to Type 
II waters, see CRMP § 210.3C, but it expressly provides that 
“[s]pecial exceptions may be granted to prohibited activities 
to permit alterations and activities that do not conform with 
a Council goal for the areas affected or which would other- 
wise be prohibited by the requirements of [the CRMP],” id. 
§ 130A. To receive a special exception under Section 130, the 
applicant must demonstrate, inter alia, that “[t]he proposed 
activity serves a compelling public purpose which provides 
benefits to the public as a whole as opposed to individual or 
private interests.” Id. § 130A(1). 

The evidence at trial indicated that in dealing with a dif- 
ferent applicant, the CRMC took the position that residential 
housing does not serve a “compelling public purpose” within 
the meaning of CRMP § 130A(1). See J.A. 73. The record 
does not make clear whether the CRMC regarded that 
principle as a categorical rule, or whether it was subject to 
possible exceptions (e.g., where minimal fill in wetland areas 
would facilitate development of the uplands portion of a 
tract). Had petitioner truly been interested in making pro- 
ductive use of the wetlands portion of his tract, he could 
have devised an alternative project, perhaps involving less 
substantial filling activities, and then sought to persuade the 
CRMC that such a project qualified for a special exception 

area was suitable for development and that the CRMC would have 
approved that location as a home site. Pet. App. B5, B9. The Supreme 
Court of Rhode Island likewise referred to “undisputed evidence in the 
record that it would be possible to build at least one single-family home on 
the existing upland area.” Id. at A11 (emphasis added). Both the trial and 
appellate courts regarded that evidence as dispositive refutation of 
petitioner’s takings claim. But neither court found that one single-family 
home was the maximum development that would be permitted on the 
property. 

16 

under CRMP Section 130A(1). For these reasons, the record 
in this case leaves significant doubt as to the type and extent 
of development that would have been permitted on peti- 
tioner’s tract, including both its upland and wetlands 
portions.7 

D. In other respects as well, the state courts’ considera- 
tion of petitioner’s takings claim would have been meaning- 
fully assisted if petitioner had announced his intention to 
construct residential units and had sought the permits 
necessary to pursue that scheme. Most obviously, such ap- 
plications could have provided some assurance that peti- 
tioner actually desired and had the means and technical 
capacity to undertake large-scale residential development.8 

7 Petitioner places substantial emphasis (see, e.g., Br. 12) on the trial 
court’s statement that “[petitioner] testified that the CRMC informed him 
that any proposal involving the filling of wetlands would be denied.” Pet. 
App. B5. Even if the trial court’s description of the evidence were accu- 
rate, petitioner’s own hearsay testimony concerning the CRMC’s likely 
response to a hypothetical development proposal would be a patently 
inadequate means of establishing the agency’s formal and official position 
with respect to petitioner’s land. In any event, the trial court’s charac- 
terization of petitioner’s testimony is inaccurate. Petitioner acknowledged 
on cross-examination that he had never submitted a permit application for 
residential development involving less than the full 18 acres of wetlands. 
See Tr. 111-113. Petitioner did present evidence concerning a discussion 
between himself and a CRMC biologist, who stated that even a more 
limited fill proposal (e.g., for reduced residential development) would not 
be approved unless petitioner could establish that the project would result 
in public rather than purely private benefits. See Tr. 116-120. But peti- 
tioner clearly did not understand the agency to have expressed a categori- 
cal opposition to any filling on the wetlands segment of the parcel. To the 
contrary, the conversation in question occurred before petitioner sub- 
mitted his 1985 beach club application. Tr. 120. 

8 Under Rhode Island law, an applicant’s intended use is an essential 
part of his application, see CRMP § 300.1 (requiring that an applicant 
describe the “need” for the activity), and substantially different prerequi- 
sites and standards may apply depending on the nature of the proposed 
development. An applicant for a residential development permit must 
first obtain a local building permit and an individual sewage disposal 
system (ISDS) permit from the Rhode Island Department of 

17 

Enforcement of ripeness principles thus helps to ensure that 
any takings award is truly “compensation” for actual injury 
to the landowner, rather than a windfall based on hypotheti- 
cal development activities that would not have occurred 
even in the absence of the contested regulatory scheme. 

In addition, if petitioner had identified large-scale residen- 
tial development as the purpose of his proposed filling 
activities, the CRMC’s consideration of his application might 
have identified other, independent barriers to that potential 
use of his parcel. The CRMC would likely have declined to 
consider petitioner’s application for permission to conduct fill 
activities for residential development until he obtained the 
necessary septic and building permits. See J.A. 66-68; 
CRMP § 300.3(B); note 8, supra. The septic systems needed 
for a 74-unit residential development would have discharged 
significant amounts of nutrients into Winnapaug Pond. J.A. 
56-57. Even a small increase in nutrient loadings could pro- 
duce eutrophication, a condition in which growth of micro- 
organisms leads to a lack of oxygen in the water, potentially 
harming shellfish stocks, causing fish kills, and causing a 
range of other harms. J.A. 83-90. The Supreme Court of 
Rhode Island also noted that the wetlands on petitioner’s 
property “provide[] a buffer for flooding,” Pet. App. A3, and 
testimony at trial indicated that filling the wetlands could 
increase flood risks to neighboring property and that houses 
and septic systems could become projectiles in a flood. Tr. 
179-181, 567-568.9 

Environmental Management. Id. §§ 300.3(B)(1) and (2), 320(C)(6). The 
ISDS permit application requires the landowner to submit a “topographic 
map of details of the lots proposed, percolation testing, ground watertable 
testing and an indication of the location of wetlands, and certain certifica- 
tions, and, if necessary, also assessment on environmental impacts,” as 
well as “various details on the septic system design” proposed. J.A. 51; 
see also J.A. 66. 

9 Petitioner suggests (Br. 3, 23, 42, 49) that construction of residences 
on filled wetlands has been a common practice in the area where his 
property is located, and that the effect of the CRMP is therefore to 

18 

This Court has made clear that any use of real property 
constituting a public or private nuisance under traditional 
state-law principles may be prohibited without the payment 
of compensation even if the effect of the ban is to deprive the 
land of all beneficial use. Lucas, 505 U.S. at 1029-1031; see 
also id. at 1035 (Kennedy, J., concurring in the judgment) 
(agreeing that “nuisance prevention accords with the most 
common expectations of property owners who face regula- 
tion,” while stating that “[c]oastal property may present 
such unique concerns for a fragile land system that the State 

deprive him of “development rights” that his neighbors have enjoyed. 
Those suggestions are not supported by the record. In the first place, 
even if petitioner or SGI might have had some expectation (at some point 
in the past) that they would at some point be able to engage in extensive 
filling of their coastal wetlands, it would not follow that they had obtained 
a distinct property right under state law to do so. In any event, at trial, 
petitioner acknowledged on cross-examination that, with possible isolated 
exceptions, the practice within the community has been to leave the marsh 
undeveloped. Tr. 98-99; see also Tr. 188-190. The aerial photographs 
submitted in Joint Lodging 2 confirm the largely undeveloped character of 
the surrounding wetland areas. A biologist’s field report prepared in 
connection with petitioner’s beach club application stated that “[t]he site 
of approx. 12± acres of fill is entirely in salt marsh bordering south shores 
of Winnapaug Pond. An estimation of total continuous salt marsh area at 
south shores of the pond is 220± acres, with an additional 100± acres at 
southwest shores. That this wetland complex is large, continuous and 
has remained relatively non-fragmented despite development pressures in 
the area is important in its value assessment.” Pl. Exh. 10, at 2 (emphasis 
added). Petitioner quotes the statement in the Biologist’s Field Report 
that “[l]and uses of Winnapaug Pond/Atlantic Beach area are moderate-to- 
heavy density seasonal development, residential and commercial; develop- 
ment directly adjacent to this site is moderate density seasonal dwellings.” 
Pet. Br. 3. Petitioner omits the final clause of that sentence, however, 
which states that “impacts are at present associated with development of 
buffering back dune areas to the north side of Atlantic Avenue.” Pl. Exh. 
10, at 2. The available evidence strongly indicates that while considerable 
development has occurred within the region as a whole, the wetlands 
areas have remained largely untouched. The case is therefore quite 
different from Lucas, where the landowner simply sought permission “to 
do what the owners of the immediately adjacent parcels had already 
done.” 505 U.S. at 1008. 

19 

can go further in regulating its development and use than 
the common law of nuisance might otherwise permit”). If 
petitioner had sought permission to undertake the large- 
scale residential development that forms the basis for his 
takings claim, the court’s consideration of the CRMC’s “nui- 
sance prevention” defense to petitioner’s takings claim 
would have been significantly informed by the views of the 
expert agencies responsible for addressing potential nui- 
sance activities in the State’s sensitive coastal area 
regarding the likely impacts of that form of development. 
Cf. Weinberger v. Salfi, 422 U.S. 749, 762 (1975) (exhaustion 
requirement is “manifestly reasonable” where it allows the 
agency to determine whether the claims are “invalid for 
other reasons”). 

The trial court found that the filling of petitioner’s 18 
acres of wetlands would constitute a public nuisance, noting 
that this Court had stated in Lucas that the nuisance inquiry 
properly includes an analysis of “the degree of harm to 
public lands and resources, or adjacent private property, 
posed by the claimant’s proposed activities, see, e.g., Restate- 
ment (Second) of Torts §§ 826, 827, the social value of the 
claimant’s activities and their suitability to the locality in 
question.” Pet. App. B10 (quoting Lucas, 505 U.S. at 1030- 
1031). Applying that analysis here, the trial court found that 
the filling petitioner proposed would constitute a nuisance 
because it “would cause a reduction in the commercial and 
recreational shellfish and finfish populations in Rhode 
Island”; would “have a significant detrimental impact on the 
existing salt marsh filtering mechanisms within the pond 
which could be expected to result in increased harmful 
nitrate levels within the pond”; would therefore “pose[] a 
public health threat because groundwater is the sole source 
of drinking water”; and “would not be suitable for the 
locality of the subject property.” Id. at B10-B11. The trial 
court’s analysis of the nuisance question focused exclusively 
on the likely environmental effects of the filling itself; the 

20 

court did not assess the additional harms that might result 
(e.g., through the operation of septic systems) from the con- 
struction and occupancy of a large residential subdivision. 

10 

E. The method by which petitioner attempted to estab- 
lish a taking thus predictably created the very ambiguities 
and inefficiencies that ripeness requirements are intended to 
avoid. If petitioner had actually sought permission to under- 
take the residential construction that now forms the basis for 
his takings claim, his application would have triggered for- 
mal agency processes focusing on that form of development, 
culminating in a final decision by the agency itself that could 
then have furnished the basis for judicial review. But 
because petitioner’s 1985 beach club application bore no 
resemblance to the hypothetical residential subdivision, the 
trial court was forced to rely on extrinsic evidence regarding 
the manner in which the CRMC and other land-use regu- 

10 Other preexisting restrictions on development of areas below mean 
high water and of the wetlands on the site further support the State’s 
view that petitioner has no reasonable investment-backed expectation 
that he would be able to place fill on the site, and that prohibitions 
resulting from the CRMP are firmly rooted in state and federal law 
defining property and in background principles of nuisance law. A 
substantial portion of the site is below mean high water. Pet. App. A3; Tr. 
463-479; Joint Lodging 2. That fact appears to render the Rhode Island 
public trust doctrine applicable, see Br. in Opp. 20, and also means that the 
federal navigational servitude applies. Willink v. United States, 240 U.S. 
572 (1916). Moreover, since 1899, construction in navigable waters has 
been subject to the approval of the Army Corps of Engineers under 
Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. 
403; for purposes of that statute, the term “navigable waters” refers to 
areas below mean high water. Willink, 240 U.S. at 580; Leslie Salt Co. v. 
Froehlke, 578 F.2d 742, 748 (9th Cir. 1978). Finally, the placement of fill 
into wetlands that drain into bodies of water such as Winnapaug Pond 
requires federal approval under Section 404 of the Clean Water Act, 33 
U.S.C. 1344, which was enacted in 1972. The regulation of such wetlands 
by the Corps of Engineers was based on an assessment that they, along 
with the body of water to which they are adjacent, are part of a single 
aquatic system and that pollution of the wetlands will affect the system as 
a whole. See United States v. Riverside Bayview Homes, 474 U.S. 121, 
134-135 (1985). 

21 

lators would likely have applied their rules to a development 
project that petitioner never presented to them. The re- 
quirement that a takings claimant obtain from the responsi- 
ble agency a “final decision regarding the application of the 
regulations to the property at issue” before filing suit, 
Williamson County, 473 U.S. at 186, exists precisely to 
avoid the need for that sort of conjectural inquiry. 

II. PETITIONER CANNOT ESTABLISH A TAKING 

OF PROPERTY SIMPLY BY PROVING THAT HIS 
LAND WOULD DRAMATICALLY INCREASE IN 
VALUE IF DEVELOPMENT RESTRICTIONS 

THAT PREDATE HIS ACQUISITION OF THE 
LAND WERE ELIMINATED 

If this Court nevertheless concludes that the Supreme 
Court of Rhode Island was required to regard petitioner’s 
takings claim as ripe, that claim fails on the merits. In 
finding that petitioner had failed to establish the existence of 
a total taking, the superior court relied in part on evidence 
presented at trial indicating that the subject property would 
have a value of $200,000 if a single-family residence were 
constructed on the uplands portion. See Pet. App. B9-B10. 
That value is scarcely trivial in any absolute sense, and it is 
far more than petitioner and SGI initially paid for the prop- 
erty. Petitioner nevertheless seeks to establish the exis- 
tence of a taking by comparing that amount to the value 
($3,150,000) that he alleges the property would have if large- 
scale residential development were permitted. See, e.g., Pet. 
Br. 40 (asserting that the CRMC’s regulatory actions have 
“result[ed] in the 93.7% loss of present value” of petitioner’s 
tract); id. at 37. 

11 For the reasons that follow, that compari- 
son is not an appropriate basis for a regulatory takings claim. 

11 Petitioner also suggests (Br. 46) that the denial of economically 
beneficial use of the wetlands portion of his tract is itself a sufficient basis 
for concluding that a taking has occurred. That claim fails for several 
reasons. First, petitioner has failed to demonstrate that the wetlands 

22 

A. This Court’s decision in Lucas v. South Carolina 
Coastal Council, supra, strongly suggests that even a 93.7% 
diminution in the value of real property resulting from the 
imposition of new land-use restrictions is not sufficient to 
establish a categorical taking. The Court acknowledged that 
a “landowner whose property is diminished in value 95% 

* * * might not be able to claim the benefit of [the Court’s] 
categorical formulation,” and that “in at least some cases the 
landowner with 95% loss will get nothing.” Id. at 1019-1020 

n.8 (internal quotation marks omitted). That discussion 
indicates that even a drastic diminution in the value of real 
property is insufficient to establish a categorical or “total” 
taking, especially if the property retains some economically 
beneficial use. And there can be no doubt that construction 
of even a single house on a residential tract constitutes 
“economically beneficial” use of real property. 

12 

areas are entirely unusable. See pp. 15-16, supra. Second, it is well- 
established that “total taking” analysis involves examination of the parcel 
as a whole. 

See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 385 n.6 (1994); 

Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers Pension 
Trust for S. Cal., 508 U.S. 602, 644 (1993); Penn Cent. Transp. Co. v. New 
York City, 438 U.S. 104, 130-131 (1978). Though some applications of that 
rule may involve difficult line-drawing problems, see Lucas, 505 U.S. at 
1016-1017 n.7, petitioner did not contend either in his brief to the state 
supreme court or in his petition for certiorari that the wetlands portion of 
his tract constituted a separate parcel. The pattern of development in the 
region—significant development in the upland areas, with the wetlands 
substantially untouched, see note 9, supra–-belies any suggestion that 
wetland areas near Winnapaug Pond have traditionally been regarded as 
separate developable parcels. Furthermore, to the extent it is appropriate 
to assess the effect of state law on petitioner’s predecessor, SGI, the 
entire tract acquired by SGI would have to be considered. As noted 
above, SGI sold a number of lots in that tract for homesites and thus was 
able to realize significant development potential from the outset. 

12 Invoking the phrase “economically viable use” in some of this Court’s 
cases, petitioner argues that the State must allow development, even in 
wetlands that are not suited to development in their natural state, that 
would enable the owner to earn a positive return on his investment in the 
land. See, e.g., Pet. Br. 42-44. This Court has never held that the Just 
Compensation Clause embodies such a guarantee. The phrase “economi- 

23 

B. The more fundamental defect in petitioner’s theory, 
however, is that the comparison on which he relies wholly 
fails to establish that the adoption of the CRMP caused his 
property to diminish in value. The superior court observed 
that “[petitioner] paid approximately $8,000 for the property 
acquired in 1959 and SGI paid approximately $5,000 for the 
property acquired in 1969. The evidence showed that SGI 
sold six individually buildable parcels of the property 
between 1959 and 1961.” Pet. App. B12. Thus, the initial 
purchase price of the land at issue here was at most $13,000, 
less whatever amounts (which petitioner failed to establish 
at trial) SGI obtained from the sale of individual units within 
the original parcel. See also note 12, supra. Despite peti- 
tioner’s oblique reference to the “fair market value of the 
property in its preregulated state” (Pet. Br. 37), petitioner 
has failed even to allege that his tract is worth less today 
than it was worth at some earlier point in time. The absence 
of evidence suggesting any diminution in value compels 
rejection of petitioner’s takings claim. 

1. The Supreme Court of Rhode Island treated the dis- 
solution of SGI, and petitioner’s consequent acquisition of 
title to the property, as a bona fide change in ownership, see 
Pet. App. A14, and it accordingly sustained the trial court’s 
finding that petitioner “did not become the owner of the 

cally viable use” was derived from Penn Central, where the challenged 
law required that the structure be used as a railroad terminal; in that 
setting, the Court simply noted that the owners could obtain relief if the 
ongoing operation of the building for that mandated purpose ceased to be 
“economically viable.” See 438 U.S. at 138 n.36; cf. Regional Rail Reor- 
ganization Act Cases, 419 U.S. 102, 118 (1974) (describing claim of 
“erosion taking” resulting from limitations on discontinuance of unprofit- 
able rail operations). The Court has not suggested any such principle 
outside the context of a specified use for an already existing structure. In 
Lucas, for example, the Court identified the relevant inquiry to be 
whether the landowner was deprived of all economically “beneficial” or 
“productive” use. See 505 U.S. at 1016 n.6, 1017, 1018. As we have 
explained in the text, petitioner has not been deprived of all beneficial or 
productive use of his land. 

24 

parcel until 1978,” id. at A15. The state court found that 
change in ownership to be an independent barrier to peti- 
tioner’s takings claim; it explained that “when [petitioner] 
became the owner of this land in 1978, state laws and regu- 
lations already substantially limited his right to fill wetlands. 
Hence, the right to fill wetlands was not part of the title he 
acquired.” Ibid. Although petitioner contests that aspect of 
the state court’s analysis, he agrees (see, e.g., Br. 43) that he 
acquired the property in 1978. 

A transfer of real property from one owner to another 
typically occurs through a voluntary exchange for value. In 
that circumstance, we agree with the Supreme Court of 
Rhode Island that a regulatory takings claim ordinarily may 
not be predicated on a land-use restriction that predates the 
claimant’s acquisition of the relevant property. The court’s 
task in a regulatory takings case is “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.” Williamson County, 473 
U.S. at 199; see pp. 9-10, supra. Before a restriction on the 
use of property can reasonably be equated with outright 
appropriation, the owner must at the very least offer proof 
that he has been deprived of a right or interest that he 
previously possessed. Enforcement of land-use regulations 
that predate the owner’s acquisition of the property do not 
have that effect. 

Nor would recognition of a takings claim in that cir- 
cumstance serve the values that the Just Compensation 
Clause was intended to protect. “The purpose of forbidding 
uncompensated takings of private property for public use is 
‘to bar Government from forcing some people alone to bear 
public burdens which, in all fairness and justice, should be 
borne by the public as a whole.’ ” Connolly v. Pension Bene- 
fit Guaranty Corp., 475 U.S. 211, 227 (1986) (quoting Arm- 
strong v. United States, 364 U.S. 40, 49 (1960)). “[W]hile 
most burdens consequent upon government action under- 

25 

taken in the public interest must be borne by individual 
landowners as concomitants of the advantage of living and 
doing business in a civilized community, some are so sub- 
stantial and unforeseeable, and can so easily be identified 
and redistributed, that justice and fairness require that they 
be borne by the public as a whole.” Kirby Forest Indus., Inc. 

v. United States, 467 U.S. 1, 14 (1984) (internal quotation 
marks and footnote omitted); see also Nollan v. California 
Coastal Comm’n, 483 U.S. 825, 835 n.4 (1987) (taking may 
occur if individual landowners are “singled out to bear the 
burden of [the State’s] attempt to remedy” larger public 
problems). An individual who chooses to acquire (e.g., envi- 
ronmentally sensitive) property that is subject to heightened 
regulatory oversight cannot plausibly claim that he has been 
“forc[ed] * * * to bear public burdens” or “singled out” by 
the government for unfavorable treatment. 

13 

In the instant case, petitioner’s acquisition of the subject 
property occurred “by operation of law,” Pet. App. A14, 
rather than through an exchange for value. It is therefore 
less clear than in the usual case that petitioner voluntarily 
accepted the constraints on wetlands development imposed 
by the CRMP (though petitioner as sole shareholder was 
ultimately responsible for SGI’s failure to file required 
reports, and thus for the corporation’s dissolution). On the 
other hand, the fact that petitioner acquired the tract by 
operation of law rather than through a bargained-for ex- 
change undermines any argument that he has a legitimate 

13 Petitioner relies in part (Br. 31-32) on cases holding that a recent 
purchaser of land may contest the validity of pre-existing restrictions on 
the use of the property. Petitioner errs, however, in analogizing an 
inverse condemnation suit to an attack on the validity of a zoning or other 
land-use regulation. The question whether a land-use restriction is lawful 
will rarely turn on whether the application of the rule is consonant with 
the expectations of a particular landowner. But the very essence of a 
claim for just compensation is the allegation that the government has 
“taken” a property right that the plaintiff previously possessed. 

26 

investment-backed expectation in being permitted to make a 
particular use of the property. Cf. Hodel v. Irving, 481 U.S. 
704, 715 (1987) (finding it “dubious” that persons who suc- 
ceeded by inheritance to fractional interests in Indian 
allotments of which they made no active use had any 
“investment-backed expectations”). In any event, because 
the restrictions on wetlands development imposed by the 
CRMP were in place at the time that petitioner acquired the 
parcel, no right that petitioner ever possessed in the land has 
been “taken” from him. 

That is particularly so in light of the fact that the State 
has not required that petitioner’s land be left “economically 
idle.” Lucas, 505 U.S. at 1019. Petitioner does not and 
cannot contend that the property has been rendered value- 
less or incapable of any beneficial use; his claim is simply 
that the property is worth much less than it would be under 
a less restrictive regulatory regime. If such a comparison 
could ever provide a basis for a meritorious takings claim 
(but see p. 22, supra), it could only be in a case where the 
enactment of use restrictions that postdate the claimant’s 
acquisition of the property disrupts the claimant’s own 
legitimate expectations and causes the property to be much 
less valuable than at the time he acquired it. 

14 

14 Any effort to conduct the inquiry that petitioner advocates would 
also be likely to involve insuperable practical problems. The development 
restrictions imposed by the CRMP give all landowners in the area— 
including petitioner—a significant “reciprocity of advantage,” Pennsylva- 
nia Coal Co. v. Mahon, 260 U.S. at 415, by preventing the degradation of 
Winnapaug Pond and protecting the integrity of its adjacent resources. 
Cf. Agins v. Tiburon, 447 U.S. 255, 262 (1980) (rejecting plaintiffs’ facial 
challenge to city zoning ordinances and observing that “[t]here is no 
indication that the [plaintiffs’] 5-acre tract is the only property affected by 
the ordinances,” and that the plaintiffs “therefore will share with other 
owners the benefits and burdens of the city’s exercise of its police power”). 
Petitioner surely could not establish a taking simply through proof that his 
tract would appreciate in value if he were permitted to engage in large- 
scale development while his neighbors remained subject to the CRMP’s 
restrictions. Rather, any takings claim based on a comparative valuation 

27 

Petitioner contends both that (a) a landowner can demon- 
strate a “total” taking based on the effect of use restrictions 
that predate his ownership of the property, and (b) a 
“diminution” in value sufficient to establish a “total” taking 
can be established by comparing the property’s current 
value not to its worth at some prior time, but to the hypo- 
thetical value it would have if an existing use restriction 
were eliminated. Acceptance of those propositions, taken 
together, would have extraordinary practical implications for 
land-use regulation. Petitioner’s analysis logically implies 
that a person could purchase a tract of real property that 
was subject to pre-existing development restrictions (e.g., 
land that was zoned for a particular use) and immediately 
establish a total taking simply through proof that the land 
would dramatically appreciate in value if the restrictions 
were eliminated. Nothing in this Court’s decisions supports 
that result. Requiring the State to pay “compensation” in 
such cases would not protect individual landowners from 
being unfairly singled out for unfavorable treatment; it 
would offer windfall profits to persons who have suffered no 
actual injury as a result of longstanding regulatory restric- 
tions, thereby encouraging speculators to game the system. 

There is no occasion in this case, however, to consider 
whether (and, if so, in what circumstances) a taking may be 
found even though the restrictions on development predated 
the claimant’s acquisition of the property. In this case, the 
restrictions in the CRMP codified, regularized, and formal- 
ized notice to landowners and the public of the application of 
principles that had long been reflected in Rhode Island’s law 
of property and nuisance in the State’s sensitive and hy- 
drologically interconnected coastal areas. Indeed, the supe- 

theory would require an assessment of the value petitioner’s tract would 
have if all landowners in the region were permitted to engage in 
unrestricted wetlands development. It seems unlikely that any workable 
methodology could be devised for conducting that highly speculative 
inquiry. 

28 

rior court specifically concluded that the filling of petitioner’s 
18 wetlands acres would have constituted a public nuisance. 
Furthermore, the wetlands to which those restrictions are 
applicable are manifestly not suited to residential develop- 
ment in their natural state, and, in stark contrast to Lucas, 
see 505 U.S. at 1008, there has been no widespread filling 
and development of the comparably situated wetlands sur- 
rounding Winnapaug Pond. At least in these circumstances, 
the existence of the statutory restrictions at the time of 
acquisition must defeat a takings claim. 

2. For the foregoing reasons, petitioner himself suffered 
no taking of property through application to his 1985 deve- 
lopment proposal of the restrictions contained in the CRMP. 
Petitioner contends (Br. 33-34), however, that a person who 
acquires property after a regulatory restriction has been 
imposed thereby acquires the right to pursue any regulatory 
takings claim that the prior owner might have asserted. In 
effect, petitioner argues that a potential regulatory takings 
claim must “run with the land,” in order to avoid any 
possibility that a taking will go uncompensated if the person 
who owns the property at the time of a new regulatory 
restriction is forced to sell (or otherwise alienate) it before 
the takings claim ripens. But plainly no general rule exists 
that every potential constitutional claim must be freely 
assignable. 

15 

15 Nollan (see Pet. Br. 22-23) is not to the contrary. In Nollan, the 
Court held that the California Coastal Commission had effected a taking 
by demanding an easement across the plaintiffs’ beachfront property as a 
condition for permitting construction of a larger residence on the land. 
See 483 U.S. at 831-842. The Court held that the plaintiffs could assert a 
takings claim notwithstanding the fact that they had purchased the 
property after the Commission had begun to implement its easement 
policy. See id. at 834 n.2. The Court explained that “[s]o long as the 
Commission could not have deprived the prior owners of the easement 
without compensating them, the prior owners must be understood to have 
transferred their full property rights in conveying the lot.” Ibid. The 
“permanent physical occupation” of real property involved in Nollan (see 

29 

In any event, even if petitioner’s theory were otherwise 
sound, it would have no application to the instant case. Peti- 
tioner has entirely failed to establish that SGI—the prior 
owner of the subject property—had any takings claim to 
assign. Even accepting the dubious premise that a substan- 
tial diminution in the value of real property can effect a 
categorical taking, petitioner identifies no evidence suggest- 
ing that the State’s adoption of the CRMP in 1977 had any 
immediate impact on the worth of the land. 

The absence of such evidence is unsurprising. The State 
of Rhode Island had closely regulated development in coastal 
wetlands well before the promulgation of the CRMP. And as 
we explain above (see note 9, supra), the record in this case 
indicates that only minimal filling of wetlands has occurred 
in the area surrounding petitioner’s tract. In 1971 the 
CRMC denied SGI permission to engage in development ac- 
tivities substantially similar to those described in peti- 
tioner’s 1983 and 1985 permit applications. The CRMP is as 
a legal and practical matter the logical outgrowth of prior 
efforts—including both regulatory measures and common- 
law nuisance principles—by the State of Rhode Island to 
prevent exploitation of environmentally sensitive regions 
from impairing the interests of adjoining landowners and of 
the general public. 

16 Nothing in the record here suggests 

id. at 831-832), however, constituted a per se taking without regard to its 
effect (or lack thereof) on the value of the land. See Loretto v. Tele- 
prompter Manhattan CATV Corp., 458 U.S. 419, 434-435 (1982). Peti- 
tioner’s takings claim, by contrast, necessarily depends on proof that the 
property has (at the very least) suffered a drastic diminution in value. 
The existence of any such diminution is most appropriately determined by 
reference to the value of petitioner’s tract at the time he acquired it. 

16 Insofar as the CRMP represents a codification of Rhode Island nui- 
sance principles as applied to particular environmentally sensitive areas, 
its application to petitioner’s tract would not effect a taking, even if the 
effect were to deny petitioner all economically beneficial use of the land. 
See Lucas, 505 U.S. at 1030 (explaining that it is “open to the State at any 
point to make the implication of * * * background principles of nuisance 
and property law explicit”). Codification of pre-existing nuisance 

30 

that the CRMP so dramatically altered the nature of the 
State’s wetlands regulation as to undermine any legitimate 
expectations of SGI or effect a taking of SGI’s property. 

CONCLUSION 

The judgment of the Supreme Court of Rhode Island 
should be affirmed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
LOIS J. SCHIFFER 

Assistant Attorney General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
MALCOLM L. STEWART 

Assistant to the Solicitor 

General 
WILLIAM B. LAZARUS 
R. JUSTIN SMITH 

Attorneys 

JANUARY 2001 

principles (and conferral of enforcement authority upon a state agency) 
may also enhance the individual landowner’s “reciprocity of advantage” 
(see note 14, supra), by giving him greater assurance that other property 
owners will comply with restrictions intended to further the interests of 
the community.