Cite as: 520 U. S. 725 (1997)
Opinion of Scalia, J.
Inc., 452 U. S. 264 (1981), discussed ante, at 736-737, the government had not yet determined whether a variance from the land-use restrictions of the Surface Mining Control and Reclamation Act of 1977 would be allowed. In Williamson County, supra, discussed ante, at 737, the government had not yet determined whether it would approve the developer's plan to build a residential complex. And in MacDonald, supra, discussed ante, at 737-738, the government had again not yet determined whether the developer's subdivision plan would be approved.
TDRs, of course, have nothing to do with the use or development of the land to which they are (by regulatory decree) "attached." The right to use and develop one's own land is quite distinct from the right to confer upon someone else an increased power to use and develop his land. The latter is valuable, to be sure, but it is a new right conferred upon the landowner in exchange for the taking, rather than a reduction of the taking. In essence, the TDR permits the landowner whose right to use and develop his property has been restricted or extinguished to extract money from others. Just as a cash payment from the government would not relate to whether the regulation "goes too far" (i. e., restricts use of the land so severely as to constitute a taking), but rather to whether there has been adequate compensation for the taking; and just as a chit or coupon from the government, redeemable by and hence marketable to third parties, would relate not to the question of taking but to the question of compensation; so also the marketable TDR, a peculiar type of chit which enables a third party not to get cash from the government but to use his land in ways the government would otherwise not permit, relates not to taking but to compensation. It has no bearing upon whether there has been a "final decision" concerning the extent to which the plaintiff's land use has been constrained.
Putting TDRs on the taking rather than the just-compensation side of the equation (as the Ninth Circuit did
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