Timothy J. Dowling
Published in the Feb. 11, 2002 issue of Insight
magazine, as part of a point-counterpoint on the Tahoe
case with Pacific Legal Foundation. PLF's article is available
Reading the "takings" clause of the
U.S. Constitution to require compensation for every temporary
moratorium would violate the Constitution's plain text and
original meaning, undermine important principles of federalism,
and undercut the very property rights that supporters of the
idea purport to cherish.
The Lake Tahoe moratorium case pending before the Supreme
Court brings these issues into specific relief. Before turning
to the Tahoe case, however, it is helpful to understand
why moratoria are so essential.
Reasonable people welcome efforts by local planners and elected
officials to keep adult bookstores and other unsavory enterprises
away from our homes, to exclude polluting facilities like
corporate hog farms from our neighborhoods, and to ensure
that new communities have adequate schools, roads, and sewers.
The basic question raised by temporary moratoria is whether
we want land use planning to be thoughtful and well informed,
or rushed and irrational. Good planning takes time, but planning
efforts often trigger a race to the permit application office
by developers who hope to get their plans filed before new
land use controls kick in. Absent moratoria, new development
would undermine planning measures before they even see the
light of day. In the words of one court, without temporary
moratoria, planning would "be like locking the stable
after the horse is stolen."
Moratoria facilitate not only routine planning, but also
efforts to address threats to public health and safety. Local
officials have used moratoria to prohibit development on unstable
slopes pending the adoption of construction guidelines. In
a landmark case called First English Evangelical Lutheran
Church v. County of Los Angeles (1987), the county imposed
a moratorium after a flash flood drowned ten people and caused
millions of dollars in property damage. The state courts ultimately
ruled that the delay was not a taking in large measure due
to the underlying public safety concerns.
May local officials impose moratoria without regard to fairness?
Of course not. Courts use the due process clause and other
legal doctrines to ensure that moratoria are reasonable in
scope and duration and imposed in good faith.
But reading the takings clause to require compensation for
every moratorium, no matter how reasonable, would constitute
blatant judicial activism. The Constitution's plain text requires
compensation only where property is "taken," a term
that suggests physical appropriation of land and does not
readily embrace mere land use regulation. Justice Antonin
Scalia, writing for the Supreme Court in 1992, reminded us
that for the first 150 years of our nation's history, courts
applied the takings clause only to appropriations and physical
invasions of property.
To be sure, in a seminal ruling called Pennsylvania Coal
Co. v. Mahon (1922), the Court ruled that in extreme situations,
land use controls may also work a taking. But, with due fidelity
to the text and original understanding of the Constitution,
the Court has made clear that regulation is a taking only
in the rare case where the economic harm is so severe that
it constitutes the functional equivalent of a physical appropriation.
Most moratoria come nowhere close to this high standard. No
court in the country has held that every temporary moratorium
is a taking.
An activist application of the takings clause to every moratorium
would severely undermine federalism. Land use planning is
quintessentially local in nature. Local officials are best
positioned to address land use issues and are most politically
responsive to all affected landowners. Having federal judges
look over the shoulders of local planners, city councils,
and county boards -- threatening to impose financially ruinous
compensation awards for every moratorium -- would work a huge
power shift over land use issues away from local officials
to unelected, politically unaccountable federal judges. Yet,
in effect this is precisely the position advanced by the landowners
in the Tahoe moratorium case.
Lake Tahoe is the world's largest alpine lake, covering more
than 192 square miles. Surrounded by the snow-capped peaks
of the Sierra Nevada mountains, the Lake is world-renowned
for its remarkable clarity. Mark Twain wrote that in eighty
feet of water, "every little pebble was distinct, every
speckled trout, every hand's-breath of sand . . . The water
was not merely transparent, but dazzlingly, brilliantly so."
He concluded that "with the shadows of the mountains
brilliantly photographed upon its still surface . . . it must
be the fairest picture the whole earth affords." Lake
Tahoe indisputably is a national treasure.
The Lake's beauty and popularity, however, contain the seeds
of its own destruction, for increased development in the Tahoe
Basin is slowly ruining the Lake. Homes, roads, parking lots,
and other impervious surfaces cover sensitive lands that previously
absorbed rain and snowmelt. The increased runoff contains
pollutants that spur the growth of algae, and the Lake is
now losing one foot of clarity each year. If development were
uncontrolled, the Lake's cobalt-blue waters would turn green
and opaque for all eternity.
With the blessing of Congress, Nevada and California created
the Tahoe Regional Planning Agency and directed it to establish
a regional development plan to protect the Lake. The Agency
imposed a 32-month moratorium, from 1981 to 1984, to preserve
the status quo on environmentally sensitive land while it
prepared the regional plan. The trial court found that given
the scientific complexities involved, the 32-month moratorium
was a reasonable, proportional, and good faith effort to protect
the Lake pending completion of the plan.
The federal appeals court that heard the case ruled that
such moratoria do not constitute a taking because they preserve
future development, which translates into substantial present
value for affected landowners. The appellate court concluded
that "given the importance and long-standing use of temporary
moratoria, courts should be exceedingly reluctant to adopt
rulings that would threaten the survival of this crucial planning
Before the U.S. Supreme Court, the Agency, the state and
local government community, and others who support the Agency
have argued that although compensation is warranted where
moratoria are truly confiscatory or a mere sham to disguise
permanent restrictions, reasonable moratoria are not takings.
This position is consistent with common sense and decades
of virtually unanimous legal precedent.
In contrast, the landowners and so-called property rights
groups argue that every moratorium is a taking, no matter
how reasonable in scope and duration, no matter how slight
the impact on the landowner, and no matter how important the
underlying government purpose. Under this reading, compensation
in the form of fair rental value would be due even where the
landowner was completely unaware of the moratorium or otherwise
suffered no harm. For example, in the Tahoe case the
trial court found that the average holding period for property
in the Tahoe Basin is twenty years, and thus a 32-month moratorium
would not upset the expectations of most landowners. Not surprisingly,
the Justices gave the landowners' extreme position a chilly
reception at the January 7th argument in the case.
The landowners assert that the 1987 First English ruling
requires compensation for temporary moratoria. But First
English holds only that compensation is required for a
taking, and it expressly left unaddressed when land use regulation
works a taking. The landowners also contend that compensation
is due under a case called Lucas v. South Carolina Coastal
Council (1992), but that ruling is limited to situations
in which land is rendered valueless. The Tahoe landowners
failed to introduce a shred of evidence that the 32-month
moratorium reduced the value of their land, much less rendered
As is often the case in high-profile takings disputes, the
so-called property rights movement has tried to skew the debate
by bending the truth, suggesting that none of the Tahoe
claimants can build on their land even today. In fact, most
of these landowners sold their property for more than their
purchase price, and most of the rest now may build on their
land. The Supreme Court has made clear that the only issue
before it in the Tahoe case is whether the 32-month moratorium
worked a compensable taking.
The irony, of course, is that if the Agency had done nothing,
all landowners would have suffered. How much would any land
in the Tahoe Basin be worth if the Lake were to turn green?
With all the focus on alleged takings, we too often neglect
the "givings" side of the equation that shows how
property owners benefit from land use controls that apply
to their neighbors and the public at large.
Because the landowners' position is so extreme, the case
has potential ramifications that extend far beyond Lake Tahoe.
Consider the implications for national security. After the
tragic events of September 11th, the federal government ordered
the temporary closure of Reagan National Airport and certain
private airports in the Washington, D.C. area to allow for
careful reevaluation of air security concerns. If temporary
denials of land use were takings, compensation claims could
hinder reasonable efforts to respond to terrorists or otherwise
enhance homeland security. Indeed, Justice Kennedy asked counsel
for the Tahoe landowners whether, under their reading of the
takings clause, compensation would be due if New York City
were to impose a one-year delay on rebuilding the World Trade
Center site. Such a delay might help the City study and address
ongoing security concerns. Understandably, the landowner's
attorney equivocated and then changed the subject.
The Lake Tahoe case shows that the argument against compensation
for moratoria crosses political and philosophical lines. Solicitor
General Theodore Olson, a conservative in anyone's book, argued
that in imposing the moratorium, the Agency acted exactly
as we want government to act: carefully and thoughtfully.
He explained that moratoria are part and parcel of the requirement
that landowners obtain a permit prior to significant development,
a process that also entails reasonable delay to protect the
public good. The Constitution never has been read to guarantee
a right to build immediately, without allowing the public
to set controls to avoid harm to the community.
Unfortunately, some so-called conservatives are less constrained
by the text and structure of the Constitution. They are quite
candid in their call for judges to go beyond the written law
by creating new law that furthers their view of conservative
social policy. The arguments against inappropriate use of
the federal judiciary to promote liberal goals apply with
equal force to so-called conservative judicial activism.
For the sake of truth in advertising, those who seek to undermine
moratoria and other legitimate planning techniques should
stop calling themselves property rights advocates. The overwhelming
majority of landowners in the United States are homeowners
who derive tremendous benefits and significantly enhanced
property values from moratoria, zoning, and other planning
efforts. Unduly expansive readings of the takings clause undermine
the property rights that so-called property rights groups
say they want to protect
Dowling is Chief Counsel of Community Rights Counsel,
a non-profit law firm that filed an amicus brief in the Lake
Tahoe case on behalf of our nation's governors, mayors, county
supervisors, and other state and local officials.