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New
York Times News Service
Los Angeles Times
NPR
CRC's
Timothy J. Dowling also wrote a piece on the Tahoe case for Insight
Magazine.
Insight
Magazine article on Tahoe
Moratorium Case
Timothy J. Dowling, Insight Magazine, February 11,
2002
New York Times News Service
Tuesday, January 8, 2002
Justices Hear Case On Lake Tahoe Building
Moratorium
By Linda Greenhouse
WASHINGTON -
Advocates of property rights have been on a winning streak
at the Supreme Court for the last 15 years or so as the court, by narrow
majorities, has expanded the categories of land-use regulation for which
the government must compensate property owners.
But it appeared during an argument at the court on Monday that the
property rights side might have finally overplayed its hand.
A lawyer representing hundreds of owners of residential building lots at
Lake Tahoe ran into resistance to his argument that a three-year
building moratorium imposed by the Tahoe Regional Planning Agency
amounted to a "taking" for which the owners were constitutionally
entitled to compensation. Most new development has been frozen because
of concerns that the lake on the California-Nevada border is losing its
crystalline clarity.
The planning agency, a bi-state organization created by Congress in
1969, stopped all development for 32 months between 1981 and 1984 in
order to study the environmental problems in the 500-square mile Lake
Tahoe basin and come up with a long-range development plan. Very little
development has been permitted since then, but for procedural reasons
the case before the Supreme Court on Monday concerned not the continuing
restrictions but only the original 32 months.
The federal appeals court in San Francisco, ruling in June 2000,
rejected the landowners' claim to compensation for the diminished value
of their property, saying that "temporary development moratoria promote
effective planning" and should not be placed within the constitutional
definition of a taking. The takings doctrine is based on the Fifth
Amendment's provision that private property shall not "be taken for
public use without just compensation."
Michael M. Berger, a well-known property rights lawyer from Santa
Monica, Calif., argued the landowners' appeal on Monday. "These people
are being asked to make a sacrifice on behalf of the greater public
good," he said. "It's part of a public project to have this freeze on
use and the public ought to be paying for it, not the owners who are
frozen out."
Some justices who were probably inclined to agree with Berger as an
abstract matter
were nonetheless openly troubled by the practical
implications of his argument. Justice Anthony Kennedy asked whether New
York City would have to compensate the owners of the World Trade Center
site if the city froze development there for a year in order to come up
with a plan.
If all use of the property was prohibited, even temporarily, that would
be a taking, Berger replied. But he seemed to back away from that
categorical position later, when he tried to assure the justices that
his position would not convert into a taking every temporary delay that
a property owner must endure while seeking a building permit under
ordinary zoning laws.
The distinction depended on the purpose of the regulation, he said. The
purpose of the moratorium his clients faced was "to prohibit use," while
the purpose of ordinary zoning regulation is "to enable use," he
explained.
Justice John Paul Stevens objected that the distinction between the two
forms of temporary land use prohibition was not so clear. "Your dividing
line depends on what's going to happen after the temporary period
expires," Stevens told Berger, adding: "Your test turns entirely on an
evaluation of the future."
Berger, who won an important takings case before the court in 1987, had
an extra burden this time in the form of the legal talent arrayed
against him two lawyers with impeccable conservative credentials who
argued for upholding the appeals court's decision. John G. Roberts Jr.,
a Washington lawyer whose nomination to the federal appeals court here
is before the Senate, represented the Tahoe Regional Planning Agency,
and Theodore B.
Olson, the solicitor general, placed the federal
government on the agency's agency's side in this case, Tahoe-Sierra Preservation
Council Inc. v. Tahoe Regional Planning Agency, No. 00-1167.
"This was government acting the way we want it to act," Olson said of
the agency's approach, which he characterized as: "before we destroy the
lake, let's stop and solve the problem that every landowner wants to
solve."
Justice Antonin Scalia, a leader of the court's property-rights faction,
objected that "this was a general social problem for which the entire
society should pay." He added: "They're preserving the lake for all
citizens. Why should some individuals bear the burden?"
Roberts, arguing for the agency, said the property owners were making
the far-reaching argument that the "mere enactment" of the moratorium
amounted to a taking, without any consideration of the reasons for it or
its actual impact. The court's precedents required an individual inquiry
rather than a categorical declaration, he said.
There were these other developments at the court on Monday:
Nichols Appeal
- Without comment, the justices turned down a challenge by Terry L.
Nichols, who was convicted after a 1997 federal trial for his role in
the bombing of the federal office building in Oklahoma City, to his
pending state trial on capital murder charges. Nichols argued that the
second trial would violate his constitutional right against double
jeopardy.
Under the Supreme Court's precedents, which the Oklahoma Court of
Criminal Appeals invoked in rejecting his challenge, the double jeopardy
prohibition does not apply to consecutive prosecutions by the federal
government and a state government, which are regarded as "separate
sovereigns."
Nichols was sentenced to life in prison without parole for his role in
murdering the federal law enforcement agents who were among the 168
people killed at the Alfred P. Murrah Federal Building on April 19,
1995. At his state trial, which has not yet been scheduled, he faces
first-degree murder charges for which he can receive the death penalty.
Timothy J. McVeigh, convicted in federal court of delivering and
detonating the truck bomb that destroyed the building, was executed last
June 11.
A Rehnquist Anniversary
Stevens, speaking as the court's senior associate justice, congratulated
Chief Justice William Rehnquist on the 30th anniversary of his
swearing-in. Rehnquist, appointed by President Richard Nixon, served as
an associate justice for 14 years before President Ronald Reagan named
him chief justice in 1986.
"In a different setting, I would propose a toast to you," Stevens said
from the bench before the start of arguments on Monday morning, "but
here I shall merely express our thanks for your 30 years of dedicated
service to our country."
Los Angeles Times
Tuesday, January 8, 2002
High
Court Gives Lake Tahoe Landowners a Sympathetic Ear
Law: Divided justices debate whether a building ban merits compensation
for hundreds of families.
DAVID G. SAVAGE
Times Staff Writer
WASHINGTON -- The Supreme Court justices, hearing arguments Monday in a
Lake Tahoe property rights case, appeared sympathetic to the hundreds of
families who have been barred from building homes on their lots, but also
wary of forcing local governments to pay compensation whenever they delay
new development.
During a lively hourlong argument, the justices seemed sharply divided on
the Tahoe case, which pits the interests of land-use planners against
those of property owners.
Ten years ago, the high court sided with a South Carolina man who was told
that he could not build anything on his beachfront lots. The court ruled
that property owners who are denied all use of their land must be paid for
their loss. The Tahoe case raises the question of whether this rule of
"mandatory compensation" should be extended to instances where
the government temporarily freezes development.
In 1981, the Tahoe regional planning agency put a moratorium on new
housing around the lake because runoff from the hillsides threatened to
turn the clear blues of the lake into algae green.
Three years later, about 700 families sued because their lots were deemed
susceptible to erosion and they were barred from building.
Chief Justice William H. Rehnquist and Justice Antonin Scalia spoke up for
the property owners during Monday's arguments.
"It doesn't seem fair to me to say these people should bear the
burden" of preserving the lake, Scalia said. "It's a general
societal problem for which the entire society should pay. . . . Why should
some individuals have to make the sacrifice?"
When a lawyer for the regional planning agency defended the
"temporary moratorium," the chief justice interjected
sarcastically, "Maybe it should all be a park."
Rehnquist and Scalia are the court's strongest champions of property
rights, but they were not alone in taking up the plight of the lot owners.
Justice Stephen G. Breyer, a native of San Francisco, also noted the
potential unfairness of the moratorium.
"The justification here is excellent--saving Lake Tahoe," he
said. But the method of accomplishing that end is questionable, he added.
"We're saying, 'You won't be able to build on your land.' Aren't they
supposed to have some remedy at law?" he asked.
The proper remedy, said the lawyer for the planning agency, is for the
individual property owners to bring separate lawsuits claiming that they
were victims of unreasonable treatment by the government.
But that is a cumbersome, costly and unrealistic solution, said Santa
Monica attorney Michael M. Berger, representing the Tahoe lot owners. He
argued instead for an automatic rule.
"If it's a total prohibition on using your land, it's a taking,"
Berger said. In such instances, the property owner deserves compensation,
even if it is a temporary prohibition, he said.
To make his point, he cited the example of a car. "If I take your car
and park it in a garage for a year, you've lost the use of it," he
told the justices. The owner would expect to be compensated for the loss,
even if the car were returned later, he said.
But Justice Sandra Day O'Connor, among others, worried about forcing local
agencies to pay compensation whenever they deny building permits, even
temporarily.
"What about your basic zoning laws?" she asked. "Is that an
immediate taking?"
Not necessarily, Berger replied, if it involves an ordinary process of
obtaining a building permit.
Washington attorney John G. Roberts, who defended the regional planning
board, argued that a moratorium does not strip owners of their property.
"Because the regulation is temporary, the land retains value,"
he said.
To this, Justice O'Connor said that the supposedly temporary moratorium
has been in effect for two decades. "It's been 22 years for some of
them. And there's no end in sight," she said.
"You are talking about a government agency that is making sure this
land lies fallow," Scalia said.
Later this week, the justices will vote on the case of Tahoe Sierra
Preservation Council vs. Tahoe Regional Planning Agency, 00-1167. It will
be several months before a decision is announced.
Meanwhile, in other actions, the court:
* Refused again to hear a free-speech challenge to the California
law that protects the rights of celebrities and their heirs to profit from
their likeness.
Without comment, the justices turned away an appeal from Los Angeles
artist Gary Saderup, who had done charcoal drawings of the Three
Stooges--Moe, Larry and Curly--and reproduced them on T-shirts.
The heirs sued, and the California Supreme Court agreed last year that
Saderup must pay them the $75,000 in profits he received. Under the
so-called "right to publicity" law, the heirs retain the
publicity rights for 70 years after the death of a celebrity. (Saderup vs.
Comedy III Productions, 01-368)
* Refused to stop a California invasion-of-privacy lawsuit brought
by truckers who discovered that video cameras had been installed in the
men's room at a company shipping hub in Mira Loma in 1997.
The company, Consolidated Freightways, said it wanted to stamp out drug
use. Its lawyers also contended that federal labor law should shield the
company because the national contract made reference to the possibility of
video surveillance.
But the U.S. Court of Appeals in San Francisco rejected that claim, and
the Supreme Court refused to intervene. (Consolidated Freightways vs.
Cramer, 01-432)
* Turned away a double jeopardy appeal from Terry L. Nichols,
Timothy J. McVeigh's accomplice in the 1995 bombing of the Alfred P.
Murrah federal building in Oklahoma City. The action clears the way for
his trial on state charges of murder, which could lead to the death
penalty. Nichols has already been convicted in federal court of conspiracy
and involuntary manslaughter involving the deaths of eight federal agents,
for which he was sentenced to life in prison.
The 5th Amendment says, "No person shall . . . be subject for the
same offense to be twice put in jeopardy of life or limb," but the
Supreme Court has historically refused to limit state and federal
authorities from bringing separate charges for the same crime. (Nichols
vs. Oklahoma, 01-6794)
* Refused to hear a Minnesota biology teacher's claim that he had
academic freedom under the 1st Amendment to refuse to teach evolution.
Rodney LeVake, the teacher, was transferred to another class, and he sued.
While federal courts have said university professors have academic
freedom, high school teachers have not won the same rights, and they can
be dismissed for refusing to teach the assigned curriculum. (LeVake vs.
Independent School District, 01-665)
* Declined to act on the state of Texas' request that it review a ruling
by the U.S. 5th Circuit Court of Appeals that a man sentenced to death for
murder in 1984 was entitled to a new trial because his lawyer slept
through substantial portions of the original trial.
The 5th Circuit said that Calvin Burdine's trial was fundamentally unfair
because of the "consistent unconsciousness" of his
court-appointed attorney, Joe Frank Cannon.
The Supreme Court, which has never ruled on whether a defendant is
entitled to a new trial because his lawyer frequently fell asleep during a
trial, gave no reason on why it was holding off any decision.
However, some legal observers said they thought it was possible the high
court had declined to act because it granted review in a Tennessee case
last month, after the U.S. 6th Circuit Court of Appeals ruled that Gary
Cone, who was sentenced to death there in 1982, was entitled to a new
trial because his lawyer failed to offer any mitigating evidence during
the trial's penalty case.
Although Cone's lawyer did not sleep during the trial, both cases deal
with the issue of what constitutes ineffective assistance of counsel under
the Constitution's 6th Amendment.
------------------------------------------------------------------------------
Los
Angeles Times
Monday, January 7, 2002
National Desk
Drawn-Out
Tahoe Case May Be a Watershed on Land Use
DAVID G. SAVAGE
Times Staff Writer
WASHINGTON -- For several hundred families, the 1970s dream of
retiring at Lake Tahoe has led instead to more than 20 years of
litigation, frustration and taxes.
Dorothy Cook, a widowed bookkeeper who was living in the San
Fernando Valley, purchased a small lot overlooking the lake in 1977.
Kenneth and Betty Eberle bought two adjoining wooded lots about the same
time.
But when it came time to build, they were blocked by a 1981
moratorium on development, a supposedly temporary delay that has stretched
out for years.
Environmentalists said runoff from rain and melting snow would
drain through certain lots if developed and pollute the crystal-clear
water of the mountain lake. So the owners' building permits were denied,
even as they watched houses going up on some of the lots around them.
"We haven't been able to do anything with it, except pay
taxes," Kenneth Eberle of Cambria, Calif., said of his Tahoe lot.
The Eberles and Cook are part of a 1984 lawsuit brought by nearly
700 families who had been prohibited from building on their Tahoe lots.
They sought compensation from the California- Nevada planning agency that
imposed the moratorium.
Today, the Supreme Court will take up the Tahoe case to decide a
question of property law that is being closely watched by builders,
environmentalists and land-use planners across the nation.
The outcome will determine when, if ever, the government must pay
for delays in allowing property owners to use their land.
The case turns on the meaning of the 5th Amendment to the
Constitution, which says "private property [shall not] be taken for
public use, without just compensation."
At one time, an unconstitutional "taking" of private
property was limited to instances where the government took over land for
its use. More recently, the high court has made clear that a government
regulation that bars all beneficial use of private property can also
trigger a demand for compensation.
It has remained unclear, however, whether a temporary freeze or a
moratorium on development entitles the landowners to compensation.
Over 17 years, the Tahoe case has bounced back and forth in the
federal courts, prompting a classic liberal-conservative split among
judges on the West Coast -- with conservatives siding with property owners
and liberals arguing that government has the right to limit certain uses
of property.
In the most recent rounds, the litigation has focused on whether
property owners deserve money for a "temporary taking" of their
land.
A trial judge in Reno ruled that the Tahoe families were entitled
to compensation because the moratorium deprived them of all use of their
land for at least three years. Strangely enough, the lawsuit has proceeded
as a dispute over how things stood in 1984 -- three years after the
moratorium was imposed -- and has essentially ignored the fact that the
owners still are unable to build on their land.
In an appeal, lawyers for the regional planning agency argued that
the building moratorium was justified by the need to protect the lake. The
U.S. 9th Circuit Court of Appeals agreed two years ago, reversing the
decision of the trial judge.
A moratorium, by its nature, is a temporary measure, said Judge
Stephen Reinhardt of Los Angeles. It "did not deprive the plaintiffs
of all 'use' of their property," he reasoned, because its usefulness
"runs from the present to the future." Someday, the lot owners
may win a permit to build on their land. And they are free to sell it to
others, including to the U.S. Forest Service, he said.
"In reaching this conclusion, we preserve the ability of local
governments to do what they have done for 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," wrote Reinhardt, a liberal leader of
the 9th Circuit.
In dissent, Judge Alex Kozinski of Pasadena joined four of his
conservative colleagues in all but urging the Supreme Court to reverse
Reinhardt's opinion.
"Let's
say the government decides to use your house as a warehouse for three
years. You are locked out and the government has the run of the property
for that period," Kozinski wrote. "Is there any doubt that you
have suffered a taking for which you should be compensated? Of course not.
Why should the case be any different if the government simply prohibits
you from using your house for three years, but never gets around to using
it as a warehouse?"
The Supreme Court voted in June to hear the property owners' appeal
in the case (Tahoe Sierra Preservation Council vs. Tahoe Regional Planning
Agency, 00-1167). Under Chief Justice William H. Rehnquist, the high court
has moved repeatedly to strengthen the rights of property owners.
Santa Monica attorney Michael M. Berger, who is representing the
Tahoe lot owners, argues that property owners are entitled to compensation
whenever the government forbids them from using their land, even
temporarily.
"If it's a flat-out prohibition of using your land, whether's
it's for a day or a decade, it's taking," Berger said. Compensation
"may not be worth much if it's just for a short time, but it's still
a taking."
In his brief to the Supreme Court, Berger says the Tahoe lot owners
have been left with nothing but a "barren title." They have paid
assessments for putting in waterlines, sewage facilities and roads around
the lake, and they pay property taxes. Yet the planning board continues to
bar them from building.
Under the regional land-use plan, lots around the Tahoe Basin were
rated on a point system according to their likelihood of causing erosion.
Runoff from developed properties has increased nitrogen levels in the
lake, triggering algae growth. Owners with land judged to be a "low
hazard" obtained permits, while owners with "high hazard"
lots were denied.
Environmentalists fear that a ruling in favor of the Tahoe lot
owners would tie the hands of land-use planners. Even temporary measures
to protect the environment could result in huge liability judgments
against the government, they said.
Timothy Dowling, a lawyer with the pro-environment group Community
Rights Counsel, said Berger is "taking an extreme position. No court
has ever recognized an absolute constitutional right to build
immediately." Dowling filed a friend-of-the-court brief on behalf of
the National League of Cities, the National Conference of State
Legislatures and other government groups.
In a move that might surprise conservatives, the Bush
administration's Solicitor Gen. Theodore B. Olson joined the case on the
side of the Tahoe planning board. He defended Reinhardt's opinion, telling
the justices that "temporary development [moratoriums] represent an
important land-use planning tool with a well-established tradition."
Today, Olson will be in the courtroom to help argue the case for
the planning agency.
The families who have been fighting the lawsuit say they are taken
aback to hear it described as a dispute over a "temporary" ban
on development. Their years of enjoying retirement are ebbing.
"We're 84 years old," Hall McElree of San Francisco said
of himself and Georgetta, his wife. "We bought a lot in the early
'70s. We wanted a place to retire, a place to ski, maybe a place for our
kids. It's lovely up there, but we're not going to ski these days.
"I think we are prejudiced about this situation," McElree
said mildly. "We can't understand why there is a house on both sides
of us, but we can't do anything with our lot," McElree said.
When the lawsuit began, there were 700 families as plaintiffs. Now,
449 are left in the case, the others having died, sold their lots or given
up.
Donald Turner of San Diego said he visited Tahoe as a young Navy
man and found just the right place to build an A-frame home.
"I had designed it, had planned and was shocked when I learned
we couldn't build," he said. "Gosh, it's been a long time, but
it's a terrible thing to have a piece of land and not be able to do
anything with it. This has destroyed a dream for a lot of people."
NPR
To listen to Morning Edition:
NPR's
Morning Edition with Nina Totenberg, Jan. 7, 2002 -- click
here.
NPR's
Morning Edition with Nina Totenberg, Jan. 8, 2002 -- click
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