Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Agency, 535 U.S. 302

Supreme Court of the United States

2002

Chapter

30-31

Title

Power to Regulate Land Use

Page

626

Topic

Temporarily deprived real estate owners

Quick Notes

The Tahoe Regional Planning Agency (TRPA) imposed two moratoria from August 24, 1981, until August 26, 1983 and from August 27, 1983, until April 25, 1984, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area. Real estate owners affected by the moratoria and an association representing such owners, including the Tahoe-Sierra Preservation Council, Inc., filed suits, claiming that TRPA's actions constituted a taking of their property without just compensation. The District Court found that TRPA had not effected a partial taking; however, it concluded that the moratoria did constitute a categorical taking because TRPA temporarily deprived real estate owners of all economically viable use of their land. In reversing, the Court of Appeals held that because the regulations had only a temporary impact, no categorical taking had occurred.

Rule

o    Where an owner possesses a full bundle of property rights, the destruction of one strand of the bundle is NOT a taking.  (Andrus).

o    The aggregate must be viewed in its entirety

Court - Holding

o         The petitioners rule would impose serious financial constraints on the planning process.

o         Moratoriums are used widely among land-use planner to perverse the status quo while formulating a more permanent development strategy.

o         As the district court stated it is simply too blunt an instrument.

o         Fairness and justice will best be served using Penn Central.

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         Whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution?  No, but there is moderate dissent (6-3).

Procedure

Trial

o         The District Court found that TRPA had not effected a partial taking; however, it concluded that the moratoria did constitute a categorical taking because TRPA temporarily deprived real estate owners of all economically viable use of their land

Appellant

o         Reversed. 

o         United States Court of Appeals for the Ninth Circuit which reversed the district court's finding that a taking occurred. 

o         The regulations had only a temporary impact on petitioners' fee interest in the properties, no categorical taking had occurred.

Supreme

o         Affirmed

Facts/Cases

Discussion

Reasoning/Key Phrase

Rules/Laws

Pl - Tahoe-Sierra Pres. Council

Df - Tahoe Regional Planning Agency

Description

o         Lake Tahoes pristine state has deteriorated rapidly over the past 40 years, due to land develop in the basis.

Petitioners

o         The Tahoe Sierra Preservation Council, a nonprofit membership corporation representing about 2,000 owners of both improved and unimproved parcels of real estate in the Lake Tahoe Basin, and a class of some 400 individual owners of vacant lots located either on SEZ lands or in other parts of districts 1, 2, or 3.

o         Those individuals purchased their properties prior to the effective date of the 1980 Compact, App. 34, primarily for the purpose of constructing "at a time of their choosing" a single-family home "to serve as a permanent, retirement or vacation residence.

o         When they made those purchases, they did so with the understanding that such construction was authorized provided that "they complied with all reasonable requirements for building."

Moratorium

o         This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth.

o         The first, Ordinance 81-5, was effective from August 24, 1981, until August 26, 1983, whereas the second more restrictive Resolution 83-21 was in effect from August 27, 1983, until April 25, 1984.

o         As a result of these two directives, virtually all development on a substantial portion of the property subject to TRPA's jurisdiction was prohibited for a period of 32 months

Section II

o         25 years was the average holding time of a lot.

District Court

         There was a taking

o    The District Court found that TRPA had not effected a partial taking; however, it concluded that the moratoria did constitute a categorical taking because TRPA temporarily deprived real estate owners of all economically viable use of their land.

Question Before the Court

o    Whether the rule set forth in Lucas applies -- that is, whether a categorical taking occurred because Ordinance 81-5 and Resolution 83-21 denied the plaintiffs' 'all economically beneficial or productive use of land?

Court of Appeals

o    The regulations had only a temporary impact on petitioners' fee interest in the properties, no categorical taking had occurred.

o    United States Court of Appeals for the Ninth Circuit which reversed the district court's finding that a taking occurred.

Plaintiffs Arg - Categorical taking of one of those temporal segments

o    The plaintiffs' argument is that we should conceptually sever each plaintiff's fee interest into discrete segments in at least one of these dimensions -- the temporal one -- and treat each of those segments as separate and distinct property interests for purposes of takings analysis.

o    Under this theory, they argue that there was a categorical taking of one of those temporal segments.

Court of Appeals You look at the parcel as a whole

o    Cases involving regulatory taking claims to focus on the impact of a regulation on the parcel as a whole.

o    A regulation that affects only a portion of the parcel -- whether limited by time, use, or space -- does not deprive the owner of all economically beneficial use.

Plaintiffs Arg First English was controlling

o    District Court said Penn was controlling.

o    Pl - did not make a claim under Penn.

Section III

Court - Petitioners make only a facial attack on Ordinance 81-5 and Resolution 83-21.

Petitioners contend

o    The mere enactment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to compensate her for the value of its use during that period.

o    Hence, they "face an uphill battle.

Court Very steep for a categorical ruling

o    That is made especially steep by their desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development.

Petitioners It is enough that the regulation imposes a temporary deprivation

o    No matter how brief -- of all economically viable use to trigger a per se rule that a taking has occurred.

o    First English and Lucas have already endorsed their view, and that it is a logical application of the principle that the Takings Clause was "designed to bar Government from forcing some people alone to bear burdens which should be borne by the public as a whole." Armstrong v. United States.

Court temporary moratorium depends on the circumstances.

o    In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither "yes, always" nor "no, never"; the answer depends upon the particular circumstances of the case.

Section IV

Rule

o    When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.

Court - Constitution does not talk about prohibiting certain uses

o    But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property.

Rule

o    Compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary.

Taking Spectrum Good for the test.

Takings Cases

o    Requires courts to apply a clear rule

Loretto v. Teleprompter Manhattan CATV Corp

o    When the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants.

United States v. Causby

o    When its planes use private airspace to approach a government airport  it is required to pay for that share no matter how small.

Lucas v. South Carolina Coast Council

o    A state statute that effectively prevented any development or other beneficial use of two residential lots was a compensable taking, absent proof that background principles of property and nuisance law justified the ban.

o    Applies to extraordinary circumstances when NO productive or economically beneficial use of land is permitted.

o    This would not apply if the diminution value was 95%, instead of the full 100%.

Does not constitute a categorical taking

o    Entails complex factual assessments of the purposes and economic effects of government actions

Block v. Hirsh

o    But a government regulation that merely prohibits landlords from evicting  [*323]  tenants unwilling to pay a higher rent,

Village of Euclid v. Ambler Realty Co

o    that bans certain private uses of a portion of an owner's property

Penn Central Transp. Co. v. New York City Landmark Case

o    Where private use of certain airspace is forbidden, it does not constitute as a categorical taking.

o    Justice Brennan:  We must focus on the parcel as a whole.

o    Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.

o    In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole -- here, the city tax block designated as the 'landmark site

The aggregate must be viewed in its entirety

Andrus v. Allard

o         A regulation that prohibited commercial transactions in eagle feathers, but did not bar other uses or impose any physical invasion or restraint upon them, was not a taking.

Gorieb v. Fox

o         Restrictions on the use of only limited portions of the parcel, such as set-back ordinances is not a taking.

Keystone Bituminous Coal Ass'n v. DeBenedictis

o         A requirement that coal pillars be left in place to prevent mine subsidence is not a taking.

Rule

o    Where an owner possesses a full bundle of property rights, the destruction of one strand of the bundle is NOT a taking.  (Andrus).

o    The aggregate must be viewed in its entirety

Court Application of Lucas in this case

o         If property was so divided every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical taking.

o         The petitioner ignores Penn centrals admonition [advice] that a regulatory taking must focus on the parcel as a whole.

o         Lucas, applies to extraordinary circumstances when NO productive or economically beneficial use of land is permitted

Section V

Mahon

o         Justice Holmes warned in Mahon, "government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law."

o          A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision making.

o         Such an important change in the law should be the product of legislative rulemaking rather than adjudication

Court - Holding

o         The petitioners rule would impose serious financial constraints on the planning process.

o         Moratoriums are used widely among land-use planner to perverse the status quo while formulating a more permanent development strategy.

o         As the district court stated it is simply too blunt an instrument.

o         Fairness and justice will best be served using Penn Central.

Affirmed

DISSENT Chief Justice Rehnquist, Justice Scalia, Justice Thomas

o         Petitioners were deprived of land for 6 years and not 32 month.

o         The Takings Clause does not distinguish on that ground that deprivation was temporary.

First English

o         Rejects any distinction between temporary and permanent takings when a landowner is deprived of all economically beneficial use of his land.

o         First English stated that "'temporary takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation."

Lucas

o         This was practically equivalent to a long-term physical appropriation.

o         From the land owners point of view it would be a temporary on all economic use.

o         Lucas is implicated when the government deprives a landowner of "all economically beneficial or productive use of land."

o         The District Court found, and the Court agrees, that the moratorium "temporarily" deprived petitioners of "'all economically viable use of their land.'" 

o         Because the rationale for the Lucas rule applies just as strongly in this case, the "temporary" denial of all viable use of land for six years is a taking.

DISSENT Justice Thomas, Justice Scalia

o         A regulation prohibiting all productive uses of property are subject to Lucas' per se rule, regardless of whether the property so burdened retains theoretical useful life and value if, and when, the "temporary" moratorium is lifted

Rules

Rule

o    Where an owner possesses a full bundle of property rights, the destruction of one strand of the bundle is NOT a taking.  (Andrus).

o    The aggregate must be viewed in its entirety

Private Property Right

Owners of private property on Lake Tahoe.

By Government Action

This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth.

Public Use

To maintain the status quo to create an environmentally sounds plan.

The degree to which the property has diminished in value?

None to Low.  Just development was suspended for 32 months that turned into 6 years.  Not 100%.  You could still walk on the land.

The remaining economic viability of the property?

None to Low.  Lake Tahoe is a beautiful place.  Just because you cannot build for 32 months or 6 years, does not render your property of economic value.

The degree to which the investment-backed expectations of the property owner have been thwarted by the regulation?

None to Low.  After moratorium is lift there will not be an investment problem.

The character of the governments action (How intrusive is the government action on private landowner.  The more intrusive, the more likely the confiscation.  The less likely, the more likely a mere deprivation.)?

Low to Middle.  Your SPECIFIC USE to develop land is not allowed during the moratorium.  But your ENTIRE right to USE, along with your other bundle of rights is not taken away.

Whether the regulation affords a reciprocal advantage to the property owner?  The reciprocal benefits or advantage or the regulation compensate for its burden

Low to Middle.  Preserving Lake Tahoe would be a benefit to ALL.

Class Notes