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A version of this case analysis
appeared in the June 19, 2000 issue of the ABA Section of
State and Local Government Law's Local
Government Law Weekly.
In a resounding victory for state and
local governments and land use planners, the U.S. Court
of Appeals for the Ninth Circuit has rejected a takings
challenge to temporary planning moratoria imposed to
protect Lake Tahoe from harm caused by uncontrolled
development.
The June 15, 2000 unanimous opinion in Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning
Agency, Nos. 99-15641, 99-15771 (9th Cir.) (TSPC),
might well prove to be a landmark ruling. Its
sophisticated and comprehensive analysis could influence
the development of takings jurisprudence as it relates to
planning moratoria, temporary takings, the
parcel-as-a-whole rule, conceptual severance, and other
key issues.
CRC filed an amicus brief on behalf of
the International Municipal Lawyers Association in
support of the Tahoe Regional Planning Agency to help
vindicate land use planning moratoria, one of the most
important planning tools available to local communities.
Factual and Procedural Background
The case involves about 450 owners of
land near Lake Tahoe, one of the most pristine lakes in
the world. Rapid development on environmentally sensitive
land in the Tahoe Basin for the past fifty years has
greatly increased the flow of nutrients into the Lake.
The nutrients lead to increased algal growth, which in
turn depletes oxygen content and jeopardizes fish
populations and other species that depend on the Lake for
survival. Algae also severely reduce clarity, with Lake
Tahoe losing about one foot of its renowned clarity every
year. The Lake is a victim of its own success, for its
unparalleled beauty attracts the very development causing
its destruction.
In the early 1980s, the Tahoe Regional
Planning Agency enacted two temporary moratoria to halt
development while it developed a comprehensive, regional
development plan to save the Lake. The two bans were in
effect for a total of thirty-two months. Various property
owners covered by the bans sued for compensation,
alleging that the moratoria effected a taking. The trial
court agreed, ruling that the moratoria constituted a
temporary, categorical taking under Lucas v. South
Carolina Coastal Council, 505 U.S. 1003 (1992). On
appeal, the Ninth Circuit reversed and directed that
judgment be entered for the government defendants.
Conceptual Severance Prohibited
Writing for the Ninth Circuit panel,
Judge Stephen Reinhardt began his analysis of the Lucas
categorical claim with an extensive discussion of the
Supreme Court's parcel-as-a-whole rule. The TSPC
panel reaffirmed that a takings claimant may not divide
land into segments in order to claim that the rights in
the regulated portion have been completely abrogated. For
example, in a takings challenge to a height restriction,
a court should not focus solely on the air space above
the building, but instead look to the regulation's effect
on the claimant's entire parcel.
After reviewing the foundational
precedents, the panel concluded that in a takings
challenge to a temporary development ban, the
parcel-as-a-whole rule similarly prevents conceptual
severance of the temporal dimension of property rights:
"A planning regulation that prevents the development
of a parcel for a temporary period of time is
conceptually no different than a land-use restriction
that permanently denies all use on a discrete portion of
property, or that permanently restricts a type of use
across all of the parcel." Slip op. at 6339-40. In
other words, all forms of conceptual severance are
strictly prohibited in regulatory takings cases.
First English: A Remedies Case
The TSPC claimants argued that
under First English Evangelical Lutheran Church v.
County of Los Angeles, 482 U.S. 304 (1987), a
moratorium that temporarily prevents all development is,
by definition, a temporary taking. The court emphatically
rejected this argument as "flatly incorrect,"
concluding that First English is a case about
takings remedies, not takings liability. Slip op. at
6342.
In First English, the Supreme
Court held that mere invalidation is an inadequate remedy
under the Takings Clause, and that where a court
invalidates government action as a taking, the claimant
is entitled to temporary damages for the period of time
the regulation was in effect. The TSPC court
reaffirmed that the concept of a "temporary"
taking articulated in First English applies only
to "'those regulatory takings which are ultimately
invalidated by the courts.'" Id. at 6343
(quoting First English). First English
"does not comprehend temporary moratoria, which from
the outset are designed to last for only a limited period
of time." Id.
No Denial of All Use or Value
The panel then turned to Lucas,
which holds that a categorical taking may occur where
regulation denies a landowner all economically viable use
of the land. The TSPC court ruled that the
moratoria did not work a Lucas taking because
they did not deny the claimants all value or use.
As to value, the court concluded that
because the moratoria were designed to be temporary, they
"preserved the bulk of the future developmental use
of the property. This future use had a substantial
present value." Id. at 6348-49. As to use,
the court ruled that both present and future uses are
relevant under Lucas. Because the moratoria
preserved future uses, they did not effect a Lucas
taking.
The Benefits of Planning
Moratoria
In a discussion remarkably sensitive to
the legitimate role of reasonable land use planning, the
court emphasized the importance of planning moratoria,
stating that "land use planning is necessarily a
complex, time-consuming undertaking," and that
moratoria promote effective planning in several ways. Id.
at 6341. They help prevent the community's problems from
worsening during the search for appropriate solutions.
They prevent a destructive
"race-to-development" that might occur before a
new plan goes into effect. Id. They also give
planners "breathing room" by relieving them of
the need "to out-speed developers who are attempting
to circumvent the planning goals." Id. The
panel emphasized: "Given the importance and
long-standing use of temporary moratoria, courts should
be exceedingly reluctant to adopt rulings that would
threaten the survival of this crucial planning
mechanism." Id.
The TSPC panel concluded its
takings analysis by stressing that its ruling
"preserve[s] the ability of local governments to do
what they have done for many years -- to engage in
orderly, reasonable land-use planning through a
considered and deliberative process. To do otherwise
would turn the Takings Clause into a weapon to be used
indiscriminately to penalize local communities for
attempting to protect the public interest." Id.
at 6351.
Conclusion
In short, the ruling is a ringing
endorsement of temporary land use planning moratoria.
Under the panel's analysis, virtually any legitimate,
temporary planning moratorium will be sustained against
challenge under Lucas's categorical rule.
Moreover, the court's scholarly treatment of conceptual
severance, temporary takings, and Lucas will be
immensely useful to government lawyers in takings
challenges to other state and local environmental
safeguards and other community protections.
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