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The Supreme Court upheld the government's power to impose
a temporary ban on development Tuesday, ruling in a Lake Tahoe
case that property owners are not due compensation whenever
they are barred from building on their land.
The 6-3 ruling is an important victory for city planners,
state officials and environmentalists nationwide. It reaffirms
the broad authority of local and state officials to control
development and regulate property.
It rejects the claim of property-rights advocates who said
the government must pay "just compensation" to owners
who are barred from using their land, even temporarily.
Justice John Paul Stevens, writing for the majority, described
a moratorium on building as "an essential tool of successful
development."
He cited an array of examples, from a 30-month halt to development
within the Petroglyph National Monument in New Mexico to the
many cities that banned new homes for a time while new sewage
treatment plants were built. Sometimes a natural disaster,
such as a hurricane, flood or wildfire, prompts officials
to impose a building moratorium while they rethink where homes
or offices can be safely constructed.
If every delay were treated as a constitutional violation
that required compensation for the property owners, cities
and states would be bankrupted by lawsuits, Stevens said.
But he did not close the door to individual property owners--such
as those at Lake Tahoe--winning such a claim in court.
"In our view, the answer to the abstract question of
whether a temporary moratorium effects a taking [of property]
is neither 'yes, always' nor 'no, never'; the answer depends
upon the particular circumstances of the case," he wrote.
However, the ruling deals a stinging defeat to nearly 700
families who bought lots near Lake Tahoe in the late 1970s.
They hoped to build vacation or retirement homes there but
soon ran afoul of new environmental rules.
Because of runoff from the hillsides, the clear blue waters
of the lake were turning algae-green. In 1981, the Tahoe Regional
Planning Agency halted new construction while it devised a
land-use plan to deal with the erosion.
Nearly three years later, the moratorium was lifted, and
some landowners whose lots were not at high risk for erosion
were permitted to build homes. Others waited years to win
permits, and still others were never granted permits to build.
Hundreds of the landowners joined a lawsuit that challenged
the development bans. But as their case moved through the
courts, it focused only on a 34-month moratorium that ended
in 1984.
A federal trial judge ruled the families had been denied
all use of their land during that period and were entitled
to compensation. But the U.S. 9th Circuit Court of Appeals
reversed that decision and said a temporary moratorium, by
its very nature, does not deprive a landowner of all use of
his land forever.
The Supreme Court took up the case last year (Tahoe-Sierra
Preservation Council vs. Tahoe Regional Planning Agency, 00-1167)
and voted Tuesday to affirm the 9th Circuit.
"We've been left with a worthless piece of property,"
said Kenneth Eberle of Cambria, Calif., one of the original
plaintiffs. He and his wife, Betty, bought two adjoining lots
in 1977 but have not been permitted to build there. "I
don't think this is fair or reasonable. I guess I'd say today
I no longer believe in the court's willingness to protect
our rights," Eberle said.
The dispute turned on how to interpret the 5th Amendment
to the Constitution, which says "private property . .
. shall not . . . be taken for public use, without just compensation."
Stevens said there remains a "fundamental distinction"
between the government's seizing of property for its use and
a government regulation that prevents or limits the owner's
use of the property.
For example, if the state wants to take land to build a freeway,
it must pay the owner just compensation. But the high court
has struggled for decades to define just when a regulatory
limit on land use amounts to a "taking" of private
property.
Under Chief Justice William H. Rehnquist, the court's conservative
wing has strengthened property rights. In a key decision 10
years ago, the court said property owners are entitled to
compensation when officials bar them from making any use of
their land.
That 5-4 ruling came in the case of David Lucas, a South
Carolina man who was prohibited from building on his two beachfront
lots. State officials had prohibited building in some low-lying
lands after Hurricane Hugo hit the area.
But in Lucas vs. South Carolina, the high court announced
a strict rule: full compensation must be paid whenever the
government permanently bars any and all use of private property.
This year, the justices took up the Lake Tahoe case to decide
whether the same automatic compensation rule applied when
officials imposed a temporary ban on building.
Stevens called the automatic compensation rule "extreme"
and unworkable. "We resist the temptation to adopt per
se rules" in land-use cases, he said. He wasjoined by
Justices Sandra Day O'Connor, Anthony M. Kennedy, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
In dissent, Rehnquist said the landowners in this case were
subjected to extreme treatment and deserve compensation for
it. "The Taking Clause requires the government to pay
compensation whenever it deprives owners of all economically
viable use of their land," Rehnquist said. Justices Antonin
Scalia and Clarence Thomas joined his dissent.
During his 16 years as chief justice, Rehnquist usually had
a narrow majority to rule in favor of property rights, but
Justices O'Connor and Kennedy switched sides this time and
joined the liberal majority.
Georgetown University law professor Richard Lazarus, an expert
on land-use law, called the ruling a welcome surprise. "This
is the first time I can recall the court discussing the propriety
of land-use planning at length. And basically they say it's
a tough job, but the government's got to do it if we are going
to protect the environment."
Because it is a constitutional ruling, the decision affects
government at all levels, from cities and counties to states
and federal agencies. In what may have been a key move, U.S.
Solicitor General Theodore B. Olson joined the case and argued
in support of the Tahoe planning agency.
Leaders of the property-rights movement said they were dismayed
but not devastated by the outcome.
The Pacific Legal Foundation in Sacramento called the ruling
"an unfortunate blip in the forward progress of property
rights."
"We strongly agree with the chief justice, who recognized
that while Lake Tahoe is a national treasure, the costs for
its environmental protection should be borne by the public
at large, not by a handful of property owners," said
foundation attorney R. S. Radford.
In some instances, local agencies and the U.S. Forest Service
have offered to buy the lots of owners who have been barred
from building on them.
The prices offered are quite low, said Santa Monica attorney
Michael M. Berger, who represented the remaining 449 Lake
Tahoe families before the Supreme Court.
It is impractical for these families to bring individual
lawsuits in a case such as this, Berger said. He had urged
the court to adopt the rule that a "total prohibition"
of using land requires some compensation, even if it is temporary.
"We've come a long distance over the last 16 years in
'takings' law," Berger said. "Landowners have some
real legal protection today. But this is a disappointment.
It is unfortunate backpedaling from where the court seemed
to be headed."
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