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Last week, in the case of in Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency, the Supreme Court took a substantial step backwards. In Tahoe, the Court considered whether a development moratorium lasting several years was a compensable taking. In siding against the landowners, a six-member majority of the Court dealt the property-rights movement its most significant legal setback in years. While the Court's ruling was narrow on its face, it nonetheless marks a significant alteration in the direction of takings jurisprudence. By all accounts, Lake Tahoe is a majestic treasure — a breathtakingly clear lake shared by California and Nevada. Beginning in the 1950s, algae growth fed by runoff from development began to diminish the lake's clarity. In response, the two states entered into an agreement — the Tahoe Regional Planning Compact — which, among other things, created the Tahoe Regional Planning Agency (TRPA), a regulatory body empowered to enact lake-conservation measures. Among TRPA's earlier actions was the imposition of a moratorium on all new development from August 1981 to August 1983, which was followed by a second moratorium until April 1984, when a new regional plan was adopted. Adoption of the plan was supposed to end the "temporary" moratorium, but it was not to be. Because the plan did not comply with TRPA's previously adopted environmental requirements, a district court enjoined private development around Lake Tahoe for another three years, until 1987. Frustrated by the regulatory restrictions on their property, many local landowners took the TRPA to court. Their legal battle over property rights has continued ever since. At issue in the case was whether a "temporary" moratorium on land use constitutes a taking of private property requiring compensation under the Fifth Amendment. The landowners claimed compensation was due because by its own terms the moratorium barred all economic use of their property so long as it was in effect. Although the taking was "temporary" — it only lasted several years — it was total. The regulatory action was the equivalent of a forced leasehold whereby the landowners were required to cede their property to a government agency for the duration of the rule. Technically, the Court only answered a very narrow question: whether or not the development moratorium constituted a "per se taking" for which the government agency in question must compensate affected landowners. Despite the clear hardship imposed by the TRPA rules, the Court concluded that a blanket moratorium — even one lasting for several years — is not a per se taking. Writing for the majority, Justice Stevens noted that a particularly oppressive moratorium might constitute a taking of private property in specific circumstances, but this would need to be determined on a case-by-case basis under what is known as the "Penn Central test" — a fact-intensive ad hoc legal inquiry under which landowners are rarely compensated. Moreover, although Tahoe landowners were "temporarily" barred from using their property for at least six years — some are still unable to develop — the Court only considered whether the first 32 months constituted a regulatory taking of private property requiring compensation under the Fifth Amendment. Despite these limitations, the Tahoe decision is likely to have a broad effect. Justice Stevens's opinion was joined in full by the Court's other liberals, as well as moderate Justices O'Connor and Kennedy, both of whom had joined prior property-friendly decisions. This could signal that the resurgence of property-rights protection may be running out of gas. If anything, will embolden bureaucratic agencies to resist property-rights challenges to their edicts. Chief Justice Rehnquist dissented, along with Justices Scalia and Thomas. The Chief noted that the question of temporary takings can be a difficult one. Not every regulatory delay in the permitting process is a compensable taking of private land. Yet acknowledging the constitutionality of much local regulation does not require giving agencies a relatively free hand, or countenancing a six-year prohibition on all economic use of land. Calling a restriction "temporary" does not change the nature of the restraint. Indeed, in a prior case the Court squarely held (over Justice Stevens's dissent) that temporary regulations are "not different in kind" from permanent prohibitions. In one sense all government regulations are "temporary" in that all are subject to change at a later date. The aim of the takings clause is to prevent the government from imposing on a select few, the costs of programs and policies that benefit the public at large. Thus, for example, if the government wants to create a park, it cannot merely declare an easement across your land. Rather it must seek to purchase the land in question or condemn it through eminent domain. In either case, the public pays the cost of the public benefit. Without a compensation requirement, there is a tremendous incentive to foist costs upon others. Regulatory limitations on land use are ubiquitous, Stevens noted, but the physical occupation or appropriation of private land for public purposes is "relatively rare." This is precisely the point. When a government agency — or, more broadly, the public — has to pay for what it wants, it becomes less cavalier about conscripting private property for public purposes. Prohibitions on development become a tool of last resort, instead of an all-purpose utility. Under the Court's holding, if the government were to deny a landowner the use of his land through a temporary physical occupation, perhaps by construction equipment or military exercises, it would commit a taking. In such cases, compensation would be due, no matter how small or insignificant the imposition. Should the government seek to obtain the same benefits by a temporary legislative fiat, however, compensation is an iffy proposition. Repeatedly in his opinion, Justice Stevens noted the "essential" nature of local land-use controls, including moratoria. Requiring local governments to compensate the victims of their regulation would turn development prohibitions into a "luxury few governments could afford." Setting aside the need to use multi-year moratoria that prohibit all land use — which appear to be relatively rare — the need to enact local land-use controls in order to protect environmental concerns does not excuse the government from having to pay for what it takes. At issue is not the government's aims, but the tools it chooses to use. "No one in this case doubted the environmental purpose of preserving Lake Tahoe from soil runoff triggered by construction," explained Douglas W. Kmiec, dean of the Columbus School of Law at Catholic University, in the Washington Post. "The question, however, was whether all of us who enjoy that beauty should pay to maintain it or only those unlucky few who . . . used their family saving s to buy developable lots, but only after the first generation of housing had already caused some environmental harm." Justice Holmes made the same point some 80 years ago in Pennsylvania Coal v. Mahon, when he explained that "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." One would hope a majority of the Supreme Court had not forgotten this lesson. — Jonathan H. Adler is an assistant professor at the Case Western Reserve University School of Law. |
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the last 15 years, the Supreme Court has consistently, albeit modestly,
expanded the protection of private-property rights against government
regulation. The Fifth Amendment to the Constitution declares private property
shall not "be taken for public use without just compensation."
In cases such as Lucas v. South Carolina Coastal Council,
Dolan v. City of Tigard, and Palazzolo v. Rhode
Island, a slim majority of the Court consistently held that this provision
— the "takings clause" — is no less worthy of judicial
enforcement than the remaining protections within the Bill of Rights.
