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CRC Op-eds and Letters to the Editor

National Law Journal, May 13, 2002

'Tahoe' ruling: common sense over extremism

In recent months, two opinion pieces by Gideon Kanner and Richard Epstein have voiced support for the claimants in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, a regulatory takings challenge to a development moratorium designed to protect Lake Tahoe.

Kanner's most recent article ["Who's in Charge Here?" NLJ, Feb. 25] lambasted two prominent conservatives-Solicitor General Theodore Olson and appellate advocate John Roberts-for opposing Kanner's landowner clients in the case. The U.S. Supreme Court's April 23 ruling in Tahoe resoundingly rejects Kanner's position and shows that the case did not present a litmus test for conservative bona fides, but rather a choice between extremism and common sense.

Started in the 1960s
Beginning in the 1960s, rampant development greatly increased the amount of nutrients entering the lake, spurring the growth of algae. Unless checked, development would have turned the lake's cobalt blue waters green and opaque forever. In the early 1980s, the Tahoe Regional Planning Agency imposed a 32-month moratorium while it prepared a regional plan to protect the lake.

Affected landowners brought a takings challenge. Although the trial court ruled for the claimants, it found that the moratorium was a good-faith, proportional and reasonable response to the threats posed by unplanned development. A federal appeals court sided with the agency, holding that the moratorium did not create a taking.

In the face of the trial court's finding of reasonableness, Kanner advanced a radical theory in the Supreme Court. He contended that every moratorium on all development-"for whatever period of time," to quote his brief--is always a taking per se, no matter how reasonable in scope and duration, no matter how slight the economic impact and no matter how important the government purpose.

At oral argument, Kanner's co-counsel, Michael Berger, argued that even a 10-minute denial of use should be compensable. When asked whether his per se rule would require compensation for a delay in rebuilding the World Trade Center site, he understandably equivocated and then changed the subject.

The high court rejected Kanner's per se rule, concluding that the takings implications of moratoria turn on the particular circumstances of each case. The court concluded that a rule of automatic liability has no foundation in the text, structure and history of the Constitution, and would require compensation not only for reasonable planning delays, but also temporary denials of access to crime scenes and fire-damaged buildings and many other government actions. The court also stressed that requiring compensation for every moratorium on development, no matter how reasonable, would improperly render this important planning technique prohibitively expensive.

Three Reagan-Bush appointees joined the majority opinion. Not even the dissenters could swallow Kanner's extreme per se rule, for they recognized that underlying state property law may insulate many moratoria from takings attack.

Richard Epstein's recent article ["Taking by Slivers," NLJ, May 6] argues that the agency rendered the claimants' land worthless for "20 years and running." In fact, hundreds of affected landowners sold their property during the moratorium, often at prices many times the original purchase price. Of those who didn't sell, most are permitted to build under the 1987 plan now in effect.

Epstein's complaint seems to be that the court failed to consider the full effect of the 1987 plan, thereby purportedly giving existing homeowners a windfall at the claimants' expense. But the trial court rejected the challenge to the 1987 plan as untimely, and thus the record contains no evidence regarding its impact. Because the claimants refused to raise the timeliness issue in the Supreme Court, it seems unfair to blame the court for declining to hear the issue.

Moreover, in rejecting Kanner's proposed per se rule, Tahoe does not prevent claimants from arguing economic equities, whatever the merits of Epstein's specific argument.

In short, Tahoe reaffirms that takings challenges to moratoria are subject to a case-by-case analysis based on reasonableness.

Timothy J. Dowling
Washington, D.C.
(The writer is chief counsel of Community Rights Counsel, a nonprofit law firm that filed an amicus brief in Tahoe on behalf of state and local officials.)

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