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CRC Op-eds and Letters to the Editor

Does a Temporary Moratorium on Construction Constitute a Taking? --

NO: Temporary moratoria are essential to sound land use planning that protects our communities, the environment, and property rights.

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 at

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 mechanism."

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 it worthless.

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.


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