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Published in the Feb. 11, 2002 issue of Insight magazine, as part of a point-counterpoint on the Tahoe case
with Pacific Legal Foundation. PLF's
article is available at http://insightmag.com/main.cfm/include/detail/storyid/166188.html
DOES
A TEMPORARY MORATORIUM ON CONSTRUCTION CONSTITUTE A TAKING?
NO: Temporary moratoria are essential
to sound land use planning that protects our communities, the environment,
and property rights.
* * *
Reading the "takings" clause of the U.S.
Constitution to require compensation for every temporary moratorium would
violate the Constitution's plain text and original meaning, undermine
important principles of federalism, and undercut the very property rights
that supporters of the idea purport to cherish.
The Lake Tahoe moratorium case pending before the
Supreme Court brings these issues into specific relief.
Before turning to the Tahoe case, however, it is helpful to
understand why moratoria are so essential.
Reasonable people welcome efforts by local planners
and elected officials to keep adult bookstores and other unsavory
enterprises away from our homes, to exclude polluting facilities like
corporate hog farms from our neighborhoods, and to ensure that new
communities have adequate schools, roads, and sewers.
The basic question raised by temporary moratoria is
whether we want land use planning to be thoughtful and well informed, or
rushed and irrational. Good
planning takes time, but planning efforts often trigger a race to the
permit application office by developers who hope to get their plans filed
before new land use controls kick in.
Absent moratoria, new development would undermine planning measures
before they even see the light of day.
In the words of one court, without temporary moratoria, planning
would “be like locking the stable after the horse is stolen.”
Moratoria facilitate not only routine planning, but
also efforts to address threats to public health and safety.
Local officials have used moratoria to prohibit development on
unstable slopes pending the adoption of construction guidelines.
In a landmark case called First
English Evangelical Lutheran Church v. County of Los Angeles (1987),
the county imposed a moratorium after a flash flood drowned ten people and
caused millions of dollars in property damage.
The state courts ultimately ruled that the delay was not a taking
in large measure due to the underlying public safety concerns.
May local officials impose moratoria without regard
to fairness? Of course not.
Courts use the due process clause and other legal doctrines to
ensure that moratoria are reasonable in scope and duration and imposed in
good faith.
But reading the takings clause to require
compensation for every moratorium, no matter how reasonable, would
constitute blatant judicial activism.
The Constitution's plain text requires compensation only where
property is "taken," a term that suggests physical appropriation
of land and does not readily embrace mere land use regulation.
Justice Antonin Scalia, writing for the Supreme Court in 1992,
reminded us that for the first 150 years of our nation's history, courts
applied the takings clause only to appropriations and physical invasions
of property.
To be sure, in a seminal ruling called Pennsylvania Coal Co. v. Mahon (1922), the Court ruled that in
extreme situations, land use controls may also work a taking.
But, with due fidelity to the text and original understanding of
the Constitution, the Court has made clear that regulation is a taking
only in the rare case where the economic harm is so severe that it
constitutes the functional equivalent of a physical appropriation.
Most moratoria come nowhere close to this high standard.
No court in the country has held that every temporary moratorium is
a taking.
An activist application of the takings clause to
every moratorium would severely undermine federalism.
Land use planning is quintessentially local in nature.
Local officials are best positioned to address land use issues and
are most politically responsive to all affected landowners.
Having federal judges look over the shoulders of local planners,
city councils, and county boards -- threatening to impose financially
ruinous compensation awards for every moratorium -- would work a huge
power shift over land use issues away from local officials to unelected,
politically unaccountable federal judges.
Yet, in effect this is precisely the position advanced by the
landowners in the Tahoe moratorium case.
Lake Tahoe is the world’s largest alpine lake,
covering more than 192 square miles. Surrounded
by the snow-capped peaks of the Sierra Nevada mountains, the Lake is
world-renowned for its remarkable clarity.
Mark Twain wrote that in eighty feet of water, "every
little pebble was distinct, every speckled trout, every
hand's-breath of sand . . . The water was not merely transparent, but
dazzlingly, brilliantly so." He
concluded that "with the shadows of the mountains brilliantly
photographed upon its still surface . . . it must be the fairest picture
the whole earth affords." Lake
Tahoe indisputably is a national treasure.
The Lake’s beauty and popularity, however, contain
the seeds of its own destruction, for increased development in the Tahoe
Basin is slowly ruining the Lake. Homes,
roads, parking lots, and other impervious surfaces cover sensitive lands
that previously absorbed rain and snowmelt.
The increased runoff contains pollutants that spur the growth of
algae, and the Lake is now losing one foot of clarity each year.
If development were uncontrolled, the Lake’s cobalt-blue waters
would turn green and opaque for all eternity.
With the blessing of Congress, Nevada and California
created the Tahoe Regional Planning Agency and directed it to establish a
regional development plan to protect the Lake.
The Agency imposed a 32-month moratorium, from 1981 to 1984, to
preserve the status quo on environmentally sensitive land while it
prepared the regional plan. The
trial court found that given the scientific complexities involved, the
32-month moratorium was a reasonable, proportional, and good faith effort
to protect the Lake pending completion of the plan.
The federal appeals court that heard the case ruled
that such moratoria do not constitute a taking because they preserve
future development, which translates into substantial present value for
affected landowners. The
appellate court concluded that "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."
Before the U.S. Supreme Court, the Agency, the state
and local government community, and others who support the Agency have
argued that although compensation is warranted where moratoria are truly
confiscatory or a mere sham to disguise permanent restrictions, reasonable
moratoria are not takings. This
position is consistent with common sense and decades of virtually
unanimous legal precedent.
In contrast, the landowners and so-called property
rights groups argue that every moratorium is a taking, no matter how
reasonable in scope and duration, no matter how slight the impact on the
landowner, and no matter how important the underlying government purpose.
Under this reading, compensation in the form of fair rental value
would be due even where the landowner was completely unaware of the
moratorium or otherwise suffered no harm.
For example, in the Tahoe case the trial court found that the
average holding period for property in the Tahoe Basin is twenty years,
and thus a 32-month moratorium would not upset the expectations of most
landowners. Not surprisingly,
the Justices gave the landowners' extreme position a chilly reception at
the January 7th argument in the case.
The landowners assert that the 1987 First English ruling requires compensation for temporary moratoria.
But First English holds only that compensation is required for a taking,
and it expressly left unaddressed when land use regulation works a taking.
The landowners also contend that compensation is due under a case
called Lucas v. South Carolina
Coastal Council (1992), but that ruling is limited to situations in
which land is rendered valueless. The
Tahoe landowners failed to introduce a shred of evidence that the 32-month
moratorium reduced the value of their land, much less rendered it
worthless.
As is often the case in high-profile takings
disputes, the so-called property rights movement has tried to skew the
debate by bending the truth, suggesting that none of the Tahoe claimants
can build on their land even today. In
fact, most of these landowners sold their property for more than their
purchase price, and most of the rest now may build on their land.
The Supreme Court has made clear that the only issue before it in
the Tahoe case is whether the 32-month moratorium worked a compensable
taking.
The irony, of course, is that if the Agency had done
nothing, all landowners would have suffered.
How much would any land in the Tahoe Basin be worth if the Lake
were to turn green? With all
the focus on alleged takings, we too often neglect the “givings” side
of the equation that shows how property owners benefit from land use
controls that apply to their neighbors and the public at large.
Because the landowners' position is so extreme, the
case has potential ramifications that extend far beyond Lake Tahoe.
Consider the implications for national security.
After the tragic events of September 11th, the federal government
ordered the temporary closure of Reagan National Airport and certain
private airports in the Washington, D.C. area to allow for careful
reevaluation of air security concerns.
If temporary denials of land use were takings, compensation claims
could hinder reasonable efforts to respond to terrorists or otherwise
enhance homeland security. Indeed,
Justice Kennedy asked counsel for the Tahoe landowners whether, under
their reading of the takings clause, compensation would be due if New York
City were to impose a one-year delay on rebuilding the World Trade Center
site. Such a delay might help
the City study and address ongoing security concerns.
Understandably, the landowner's attorney equivocated and then
changed the subject.
The Lake Tahoe case shows that the argument against
compensation for moratoria crosses political and philosophical lines.
Solicitor General Theodore Olson, a conservative in anyone's book, argued
that in imposing the moratorium, the Agency acted exactly as we want
government to act: carefully and thoughtfully.
He explained that moratoria are part and parcel of the requirement
that landowners obtain a permit prior to significant development, a
process that also entails reasonable delay to protect the public good.
The Constitution never has been read to guarantee a right to build
immediately, without allowing the public to set controls to avoid harm to
the community.
Unfortunately, some so-called conservatives are less
constrained by the text and structure of the Constitution.
They are quite candid in their call for judges to go beyond the
written law by creating new law that furthers their view of conservative
social policy. The arguments
against inappropriate use of the federal judiciary to promote liberal
goals apply with equal force to so-called conservative judicial activism.
For the sake of truth in advertising, those who seek
to undermine moratoria and other legitimate planning techniques should
stop calling themselves property rights advocates. The overwhelming
majority of landowners in the United States are homeowners who derive
tremendous benefits and significantly enhanced property values from
moratoria, zoning, and other planning efforts.
Unduly expansive readings of the takings clause undermine the
property rights that so-called property rights groups say they want to
protect.
Dowling is
Chief Counsel of Community Rights Counsel, a non-profit law firm that
filed an amicus brief in the Lake Tahoe case
on behalf of our nation’s governors, mayors, county supervisors, and
other state and local officials.
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