172 BRENNAN, J., concurring JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring. The Court today discusses two methods for analyzing the constitutional injury that may result from the temporary application of government regulations denying property any economically viable use. The Court concludes that, under either approach, the respondent's claim is premature because the petitioner Williamson County Regional Planning Commission's 1981 disapproval of the respondent's preliminary plat did not constitute a final reviewable decision given the availability of a variance procedure that the respondent did not pursue. Ante, at 185, 199-200. I join the Court's opinion without, however, departing from my views set forth in San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621, 636 (1981) (BRENNAN, J., dissenting). Because "[i]nvalidation unaccompanied by payment of damages would hardly compensate the landowner for any economic loss suffered during the time his property was taken," I believe that "once a court establishes that there was a regulatory 'taking,' the Constitution demands that the government entity pay just compensation for the period commencing on the date the regulation first effected the 'taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." Id., at 653, 655. As the Court demonstrates in this case, however, "the Commission's denial of approval does not conclusively determine whether respondent will be denied all reasonable beneficial use of its property, and therefore is not a final, reviewable decision." Ante, at 194. In addition, "[r]espondent has not shown that [Tennessee's] inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature." Ante, at 196-197. Accordingly, I join the Court's opinion reversing the judgment of the Court of Appeals for the Sixth Circuit. STEVENS, J., concurring in judgment JUSTICE STEVENS, concurring in the judgment. 473 U. S. Zoning restrictions are a species of governmental regulation that may impair the value of private property. The impairment may occur in one of two ways. The substance of a restriction may permanently curtail the economic value of the property. Or the procedures that must be employed, either to obtain permission to use property in a particular way or to remove an unlawful restriction on its use, may temporarily deprive the owner of a fair return on his investment. For convenience, I will refer to the former category as "permanent harms" and the latter as "temporary harms." 3 Permanent harms fall into three subcategories. They may be impermissible even if the government is willing to pay for them.' They may be permissible provided that the property owner is compensated for his loss. Or they may be permissible even if no compensation at all is paid. The permanent harm inflicted by the zoning regulations at issue in this case is either in the second or the third subcategory. As the Court demonstrates, until all available remedies have been exhausted, all we can say with any certainty is that petitioners may be required to abandon some of their restrictions upon respondent unless they are prepared to compensate respondent for whatever permanent harm they may cause. In most litigation involving a challenge to a governmental regulation-and this case is no exception-the government contends that the public interest justifies the harm to the property owner and that no compensation need be paid. If the government fails to convince the court that such is the case-that is, if it is not entitled to impose an uncompensated 1For example, even if the State is willing to compensate me, it has no right to appropriate my property because it does not agree with my political or religious views. 'See, e. g., United States v. 50 Acres of Land, 469 U. S. 24 (1984). 'See, e. g., Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). 172 STEVENS, J., concurring in judgment permanent harm on the property owner-the court can express its ruling on the merits by stating that the regulation is invalid, or by characterizing it as a "taking." In either event, the essence of the holding is a conclusion that the harm caused by the regulation is one that the government may not impose unless it is prepared to pay for it. In my opinion, when such a situation develops, there is nothing in the Constitution that prevents the government from electing to abandon the permanent-harm-causing regulation. The fact that a jurist as eminent as Oliver Wendell Holmes characterized a regulation that "goes too far" as a "taking" does not mean that such a regulation may never be canceled and must always give rise to a right to compensation.* To the extent that this case involves a claim that the respondent has suffered an unlawful permanent harmwhether it is called a "taking" or merely an invalid attempt to regulate-the Court correctly explains that the issue is not yet ripe for decision. We do not yet know whether the harm inflicted by the zoning regulations is severe enough to lead to the conclusion that the zoning regulations "go too far." We do know, however, that the process of determining how far the regulations do apply to respondent has already caused it a fairly serious harm-one that the jury calculated as worth $350,000. But that harm is in my second major category-it was a "temporary harm." Temporary harms resulting from a regulatory decision fall into two broad subcategories: (1) those that result from a 'In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), Justice Holmes' opinion for the Court stated: "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." As he explained earlier in the opinion, however, all this implies is that when regulation “reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act." Id., at 413. For a complete discussion of this point see Siemon, Of Regulatory Takings and Other Myths, 1 J. Land Use & Env. L. 105, 110-117 (1985). STEVENS, J., concurring in judgment 473 U. S. deliberate decision to appropriate certain property for public use for a limited period of time; and (2) those that are a byproduct of governmental decisionmaking. The first subcategory includes, for example, the condemnation of a laundry to be used by the military for the duration of World War II, Kimball Laundry Co. v. United States, 338 U. S. 1 (1949), or the condemnation of the unexpired term of a lease, United States v. General Motors Corp., 323 U. S. 373 (1945)—that type of appropriation is correctly characterized as a “temporary taking." The second subcategory is fairly characterized as an inevitable cost of doing business in a highly regulated society. Temporary harms in the second subcategory are an unfortunate but necessary by-product of disputes over the extent of the government's power to inflict permanent harms without paying for them. Every time a property owner is successful, in whole or in part, in a challenge to a governmental regulation-whether it be a zoning ordinance, a health regulation, or a traffic law"-he is almost certain to suffer some temporary harm in the process. At the least, he will usually incur significant litigation expenses and frequently he will incur substantial revenue losses because the use of his property has been temporarily curtailed while the dispute is being resolved. 5 In some situations these temporary harms are compensable. Statutes authorize the recovery of some costs of litigation, including attorney's fees. Sometimes the cost of obtaining regulatory approval is budgeted in an initial development plan and ultimately recovered from consumers. But in many cases-and apparently this is one-the property owner has no effective remedy for such a temporary harm 'See, e. g., Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607 (1980). 6 See, e. g., Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429 (1978). 172 STEVENS, J., concurring in judgment except a possible claim that his constitutional rights have been violated. If his property is harmed-even temporarily-without due process of law, he may have a claim for damages based on the denial of his procedural rights. But if the procedure that has been employed to determine whether a particular regulation "goes too far" is fair, I know of nothing in the Constitution that entitles him to recover for this type of temporary harm. The Due Process Clause of the Fourteenth Amendment requires a State to employ fair procedures in the administration and enforcement of all kinds of regulations. It does not, however, impose the utopian requirement that enforcement action may not impose any cost upon the citizen unless the government's position is completely vindicated. We must presume that regulatory bodies such as zoning boards, school boards, and health boards, generally make a good-faith effort to advance the public interest when they are performing their official duties, but we must also recognize that they will often become involved in controversies that they will ultimately lose. Even though these controversies are costly and temporarily harmful to the private citizen, as long as fair procedures are followed, I do not believe there is any basis in the Constitution for characterizing the inevitable by-product of every such dispute as a "taking" of private property. In this case there was a substantial dispute not only about the permissibility of the permanent harm, but also over the fairness of the procedures employed by petitioners. Respondent made a claim that its constitutional right to due process of law had been violated. Conceivably it might have prevailed on that theory if it could have proved that an unconstitutional procedure had resulted in an unnecessary delay in obtaining approval of its development plan. See ante, at 183, n. 6. But its proof failed on that issue. The jury 'Cf. Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 (1978). |