748
Opinion of Scalia, J.
below) is a clever, albeit transparent, device that seeks to take advantage of a peculiarity of our Takings-Clause jurisprudence: Whereas once there is a taking, the Constitution requires just (i. e., full) compensation, see, e. g., United States v. 564.54 Acres of Monroe and Pike County Land, 441 U. S. 506, 510 (1979) (owner must be put " 'in as good a position pecuniarily as if his property had not been taken' "); Monongahela Nav. Co. v. United States, 148 U. S. 312, 326 (1893) ("[T]he compensation must be a full and perfect equivalent for the property taken"), a regulatory taking generally does not occur so long as the land retains substantial (albeit not its full) value, see, e. g., Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). If money that the government-regulator gives to the landowner can be counted on the question of whether there is a taking (causing the courts to say that the land retains substantial value, and has thus not been taken), rather than on the question of whether the compensation for the taking is adequate, the government can get away with paying much less. That is all that is going on here. It would be too obvious, of course, for the government simply to say "although your land is regulated, our land-use scheme entitles you to a government payment of $1,000." That is patently compensation and not retention of land value. It would be a little better to say "under our land-use scheme, TDRs are attached to every parcel, and if the parcel is regulated its TDR can be cashed in with the government for $1,000." But that still looks too much like compensation. The cleverness of the scheme before us here is that it causes the payment to come, not from the government but from third parties—whom the government reimburses for their outlay by granting them (as the TDRs promise) a variance from otherwise applicable land-use restrictions.
Respondent maintains that Penn Central supports the conclusion that TDRs are relevant to the question whether there has been a taking. In Penn Central we remarked that because the rights to develop the airspace above Grand Cen-
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