Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

TAHOE-SIERRA PRESERVATION COUNCIL, INC., ET AL. v. TAHOE REGIONAL PLANNING AGENCY ET AL.

Certiorari to the United States Court of Appeals for the Ninth Circuit.

No. 00-1167. Argued January 7, 2002 — Decided April 23, 2002.

216 F. 3d 764, affirmed.

STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p. 343. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 355.

Michael M. Berger argued the cause for petitioners. With him on the briefs were Gideon Kanner and Lawrence L. Hoffman. John G. Roberts, Jr., argued the cause for respondents. Solicitor General Olson argued the cause for the United States as amicus curiae urging affirmance.

The report occupies pages 302 through 356 of volume 535 of the United States Reports. The opinion of the Court begins at page 306 and ends at page 343; the dissenting opinion of Chief Justice Rehnquist begins at page 343 and that of Justice Thomas at page 355.

[535 U.S. 302] “Respondent Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area. Petitioners, real estate owners affected by the moratoria and an association representing such owners, filed parallel suits, later consolidated, claiming that TRPA's actions constituted a taking of their property without just compensation.”

[535 U.S. 302] “Held: The moratoria ordered by TRPA are not per se takings of property requiring compensation under the Takings Clause. Pp. 321-343.”

[535 U.S. 303] “In First English, 482 U. S., at 315, 318, 321, the Court addressed the separate remedial question of how compensation is measured once a regulatory taking is established, but not the different and prior question whether the temporary regulation was in fact a taking. . . . Thus, First English did not approve, and implicitly rejected, petitioners' categorical approach.”

[535 U.S. 303] “To sever a 32-month segment from the remainder of each fee simple estate and then ask whether that segment has been taken in its entirety would ignore Penn Central's admonition to focus on ‘the parcel as a whole,’ 438 U. S., at 130-131. Both dimensions of a real property interest — the metes and bounds describing its geographic dimensions and the term of years describing its temporal aspect — must be considered when viewing the interest in its entirety. A permanent deprivation of all use is a taking of the parcel as a whole, but a temporary restriction causing a diminution in value is not, for the property will recover value when the prohibition is lifted. Lucas was carved out for the ‘extraordinary case’ in which a regulation permanently deprives property of all use; the default rule remains that a fact specific inquiry is required in the regulatory taking context.”

[535 U.S. 304] “(b) ‘Fairness and justice’ will not be better served by a categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking. That rule would apply to numerous normal delays in obtaining, e. g., building permits, and would require changes in practices that have long been considered permissible exercises of the police power. Such an important change in the law should be the product of legislative rulemaking, not adjudication. . . . Moratoria are an essential tool of successful development. Pp. 333-342.”

[535 U.S. 306] “The question presented is 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. 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.”

[535 U.S. 306] “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.”

[535 U.S. 324] “Land-use regulations are ubiquitous and most of them impact property values in some tangential way — often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights.”

[535 U.S. 331] “With property so divided, every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical takings. Petitioners' ‘conceptual severance’ argument is unavailing because it ignores Penn Central's admonition that in regulatory takings cases we must focus on ‘the parcel as a whole.’ 438 U. S., at 130-131. We have consistently rejected such an approach to the ‘denominator’ question. See Keystone, 480 U. S., at 497.”

[535 U.S. 332] “Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation of the owner's use of the entire area is a taking of ‘the parcel as a whole,’ whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted.”

[535 U.S. 332] “Neither Lucas, nor First English, nor any of our other regulatory takings cases compels us to accept petitioners' categorical submission. In fact, these cases make clear that the categorical rule in Lucas was carved out for the ‘extraordinary case’ in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry.”

[535 U.S. 343] “Accordingly, the judgment of the Court of Appeals is affirmed.”

[535 U.S. 343] “It is so ordered.”

[535 U.S. 343] “For over half a decade petitioners were prohibited from building homes, or any other structures, on their land. Because the Takings Clause requires the government to pay compensation when it deprives owners of all economically viable use of their land, see Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), and because a ban on all development lasting almost six years does not resemble any traditional land-use planning device, I dissent.”

[535 U.S. 355] “I join THE CHIEF JUSTICE's dissent. I write separately to address the majority's conclusion that the temporary moratorium at issue here was not a taking because it was not a ‘taking of “the parcel as a whole.”’ Ante, at 332.”

[535 U.S. 355] “A taking is exactly what occurred in this case. No one seriously doubts that the land-use regulations at issue rendered petitioners' land unsusceptible of any economically beneficial use.”

Editorial note. Chief Justice Rehnquist argued that the relevant prohibition lasted not thirty-two months but nearly six years, once the subsequent regional plan and injunctions were counted, and that a total ban of that length bore no resemblance to the ordinary delays of the permit process which the majority invoked to justify its rule. In his view Lucas and First English together required compensation for a deprivation of all economically viable use, however denominated.

Editorial note. Justice Thomas questioned the parcel-as-a-whole doctrine itself, noting the Court's own expressions of discomfort with the logic of the denominator rule in Palazzolo and Lucas, and argued that the temporal dimension of ownership cannot be used to absorb a complete deprivation without rendering the Takings Clause dependent on how long the government chooses to prohibit use.

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Editorial note. The Tahoe Regional Planning Agency, created by an interstate compact between California and Nevada with the consent of Congress, ordered two moratoria to hold the status quo while it designed a plan to arrest the loss of Lake Tahoe's clarity through nutrient-bearing runoff from development. Ordinance 81-5 was effective from 24 August 1981 to 26 August 1983, and the more restrictive Resolution 83-21 from 27 August 1983 to 25 April 1984. Together they prohibited virtually all development on a substantial portion of the land within the agency's jurisdiction for thirty-two months. The petitioners were owners of affected lots and an association representing them.

Editorial note. The District Court found no partial taking under Penn Central but held that the moratoria were categorical takings under Lucas because all economically viable use had been temporarily denied. The Court of Appeals for the Ninth Circuit reversed that determination, 216 F. 3d 764 (2000), holding that Lucas applies to a regulation permanently denying all productive use of an entire parcel and that First English concerned remedy rather than liability. The Supreme Court affirmed.

Editorial note. The issue was whether a development moratorium imposed during planning is a per se taking. The Court held that it is not. The temporal aspect of an estate belongs to the parcel as a whole, so a restriction that suspends use for a period without destroying the fee is not a categorical taking; such claims are governed by the fact-specific balancing of Penn Central, in which duration is one factor among several.

Editorial note. Justice Stevens separated the physical and regulatory lines of authority and refused to carry per se rules from one to the other. He read First English as answering only how compensation is measured once a taking is established, and Lucas as reserved for the extraordinary case of permanent deprivation of all value.

Editorial note. He then rejected conceptual severance: to carve a thirty-two-month segment out of the fee and ask whether that segment had been wholly taken would make every delay a total ban and would convert the ordinary permit process into a series of categorical takings. Considering fairness and justice, the Court held that a per se rule for temporary deprivations would penalise the deliberate planning that moratoria exist to protect, and that such a change in the law belonged to legislatures rather than to adjudication.

Editorial note. Tahoe-Sierra settles the denominator question in its temporal dimension and supplies the treatise's rule for interim controls: duration matters as a factor, not as a trigger. It also fixes the reading of First English and Lucas that the later regulatory takings cases assume, keeping the categorical rules narrow and the Penn Central inquiry as the default.

Editorial note. Followed. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), adopted the same taxonomy of physical, categorical, and Penn Central takings claims. Murr v. Wisconsin, 582 U.S. 383 (2017), applied the parcel-as-a-whole principle to the definition of the relevant parcel in its geographic dimension.

Editorial note. Read with U.S. Const. amend. V (Takings Clause) and the treatise chapters on regulatory takings, on interim land-use controls, and on the definition of the relevant parcel.