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'Tahoe' ruling: common sense over extremism
In recent months, two opinion pieces by Gideon Kanner and
Richard Epstein have voiced support for the claimants in Tahoe-Sierra
Preservation Council v. Tahoe Regional Planning Agency, a
regulatory takings challenge to a development moratorium designed
to protect Lake Tahoe.
Kanner's most recent article ["Who's in Charge Here?"
NLJ, Feb. 25] lambasted two prominent conservatives-Solicitor
General Theodore Olson and appellate advocate John Roberts-for
opposing Kanner's landowner clients in the case. The U.S.
Supreme Court's April 23 ruling in Tahoe resoundingly rejects
Kanner's position and shows that the case did not present
a litmus test for conservative bona fides, but rather a choice
between extremism and common sense.
Started in the 1960s
Beginning in the 1960s, rampant development greatly increased
the amount of nutrients entering the lake, spurring the growth
of algae. Unless checked, development would have turned the
lake's cobalt blue waters green and opaque forever. In the
early 1980s, the Tahoe Regional Planning Agency imposed a
32-month moratorium while it prepared a regional plan to protect
the lake.
Affected landowners brought a takings challenge. Although
the trial court ruled for the claimants, it found that the
moratorium was a good-faith, proportional and reasonable response
to the threats posed by unplanned development. A federal appeals
court sided with the agency, holding that the moratorium did
not create a taking.
In the face of the trial court's finding of reasonableness,
Kanner advanced a radical theory in the Supreme Court. He
contended that every moratorium on all development-"for
whatever period of time," to quote his brief--is always
a taking per se, no matter how reasonable in scope and duration,
no matter how slight the economic impact and no matter how
important the government purpose.
At oral argument, Kanner's co-counsel, Michael Berger, argued
that even a 10-minute denial of use should be compensable.
When asked whether his per se rule would require compensation
for a delay in rebuilding the World Trade Center site, he
understandably equivocated and then changed the subject.
The high court rejected Kanner's per se rule, concluding
that the takings implications of moratoria turn on the particular
circumstances of each case. The court concluded that a rule
of automatic liability has no foundation in the text, structure
and history of the Constitution, and would require compensation
not only for reasonable planning delays, but also temporary
denials of access to crime scenes and fire-damaged buildings
and many other government actions. The court also stressed
that requiring compensation for every moratorium on development,
no matter how reasonable, would improperly render this important
planning technique prohibitively expensive.
Three Reagan-Bush appointees joined the majority opinion.
Not even the dissenters could swallow Kanner's extreme per
se rule, for they recognized that underlying state property
law may insulate many moratoria from takings attack.
Richard Epstein's recent article ["Taking by Slivers,"
NLJ, May 6] argues that the agency rendered the claimants'
land worthless for "20 years and running." In fact,
hundreds of affected landowners sold their property during
the moratorium, often at prices many times the original purchase
price. Of those who didn't sell, most are permitted to build
under the 1987 plan now in effect.
Epstein's complaint seems to be that the court failed to
consider the full effect of the 1987 plan, thereby purportedly
giving existing homeowners a windfall at the claimants' expense.
But the trial court rejected the challenge to the 1987 plan
as untimely, and thus the record contains no evidence regarding
its impact. Because the claimants refused to raise the timeliness
issue in the Supreme Court, it seems unfair to blame the court
for declining to hear the issue.
Moreover, in rejecting Kanner's proposed per se rule, Tahoe
does not prevent claimants from arguing economic equities,
whatever the merits of Epstein's specific argument.
In short, Tahoe reaffirms that takings challenges to moratoria
are subject to a case-by-case analysis based on reasonableness.
Timothy J. Dowling
Washington, D.C.
(The writer is chief counsel of Community Rights Counsel,
a nonprofit law firm that filed an amicus brief in Tahoe on
behalf of state and local officials.)
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