25 years was the average holding time of a lot.
There was a taking
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
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
The regulations had only a temporary impact on petitioners' fee
interest in the properties, no categorical taking had occurred.
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
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.
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
Cases involving regulatory taking claims to focus on the impact
of a regulation on the parcel as a whole.
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
District Court said Penn was controlling.
Pl - did not make a claim under Penn.
Court - Petitioners make only a facial attack on Ordinance 81-5
and Resolution 83-21.
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.
Hence, they "face an uphill battle.
Very steep for a categorical ruling
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
No matter how brief -- of all economically viable use to trigger
a per se rule that a taking has occurred.
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.
temporary moratorium depends on the circumstances.
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.
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
- Constitution does not talk about prohibiting certain uses
But the Constitution contains no comparable reference to
regulations that prohibit a property owner from making certain
uses of her private property.
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.
Requires courts to apply a clear rule
Loretto v. Teleprompter Manhattan CATV Corp
When the government appropriates part of a rooftop in order to
provide cable TV access for apartment tenants.
United States v. Causby
When its planes use private airspace to approach a government
airport it is required to pay for that share no matter how
Lucas v. South Carolina Coast Council
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.
Applies to extraordinary circumstances when NO productive or
economically beneficial use of land is permitted.
This would not apply if the diminution value was 95%, instead of
the full 100%.
Does not constitute a categorical taking
Entails complex factual assessments of the purposes and economic
effects of government actions
Block v. Hirsh
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
that bans certain private uses of a portion of an owner's
Penn Central Transp. Co. v. New York City
Where private use of certain airspace is forbidden, it does not
constitute as a categorical taking.
Justice Brennan: We must focus on the parcel as a whole.
Taking' jurisprudence does
not divide a single parcel into discrete segments and attempt to
determine whether rights in a particular segment have been
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
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
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
requirement that coal pillars be left in place to prevent mine
subsidence is not a taking.
Where an owner possesses a full bundle of property rights, the
destruction of one strand of the bundle is NOT a taking.
The aggregate must be viewed in its entirety
Application of Lucas in this case
If property was so divided every delay would become a total ban;
the moratorium and the normal permit process alike would
constitute categorical taking.
The petitioner ignores Penn centrals admonition [advice] that a
regulatory taking must focus on the parcel as a whole.
Lucas, applies to extraordinary circumstances when NO productive
or economically beneficial use of land is permitted
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
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.
Such an important change in the law should be the product of
legislative rulemaking rather than adjudication
The petitioners rule would impose serious financial constraints
on the planning process.
Moratoriums are used widely among land-use planner to perverse
the status quo while formulating a more permanent development
As the district court stated it is simply too blunt an
Fairness and justice will best be served using Penn Central.
DISSENT Chief Justice Rehnquist, Justice Scalia, Justice
Petitioners were deprived of land for 6 years and not 32 month.
The Takings Clause does not distinguish on that ground that
deprivation was temporary.
Rejects any distinction between temporary and permanent takings
when a landowner is deprived of all economically beneficial use
of his land.
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
This was practically equivalent to a long-term physical
From the land owners point of view it would be a temporary on
all economic use.
Lucas is implicated when the government deprives a landowner of
"all economically beneficial or productive use of land."
The District Court found, and the Court agrees, that the
moratorium "temporarily" deprived petitioners of "'all
economically viable use of their land.'"
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
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