Tahoe-Sierra Preservation Council
Tahoe Regional Planning Agency
Opinion of the Court
Dissent: Chief Justice Rehnquist
Dissent: Justice Thomas
NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at
the time the opinion is issued. The syllabus constitutes no
part of the opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200
U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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
No. 00-1167. Argued January 7, 2002-Decided April 23, 2002
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. The District Court found that TRPA had not effected
a "partial taking" under the analysis set out in
Penn Central Transp. Co. v. New York City, 438 U.S. 104; however,
it concluded that the moratoria did constitute a taking under
the categorical rule announced in Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, because TRPA temporarily deprived
petitioners of all economically viable use of their land.
On appeal, TRPA successfully challenged the District Court's
takings determination. Finding that the only question in this
facial challenge was whether Lucas' rule applied, the Ninth
Circuit held that because the regulations had only a temporary
impact on petitioners' fee interest, no categorical taking
had occurred; that Lucas applied to the relatively rare case
in which a regulation permanently denies all productive use
of an entire parcel, whereas the moratoria involved only a
temporal slice of the fee interest; and that First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles,
482 U.S. 304, concerned the question whether compensation
is an appropriate remedy for a temporary taking, not whether
or when such a taking has occurred. The court also concluded
that Penn Central's ad hoc balancing approach was the proper
framework for analyzing whether a taking had occurred, but
that petitioners had not challenged the District Court's conclusion
that they could not make out a claim under Penn Central's
Held: The moratoria ordered by TRPA are not per se takings
of property requiring compensation under the Takings Clause.
(a) Although this Court's physical takings jurisprudence,
for the most part, involves the straightforward application
of per se rules, its regulatory takings jurisprudence is characterized
by "essentially ad hoc, factual inquiries," Penn
Central, 438 U.S., at 124, designed to allow "careful
examination and weighing of all the relevant circumstances,"
Palazzolo v. Rhode Island, 533 U.S. 606, 636 (O'Connor, J.,
concurring). The longstanding distinction between physical
and regulatory takings makes it inappropriate to treat precedent
from one as controlling on the other. Petitioners rely on
First English and Lucas-both regulatory takings cases-to argue
for a categorical rule that whenever the government imposes
a deprivation of all economically viable use of property,
no matter how brief, it effects a taking. 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. To
the extent that the Court referenced that antecedent question,
it recognized that a regulation temporarily denying an owner
all use of her property might not constitute a taking if the
denial was part of the State's authority to enact safety regulations,
or if it were one of the normal delays in obtaining building
permits, changes in zoning ordinances, variances, and the
like. Thus, First English did not approve, and implicitly
rejected, petitioners' categorical approach. Nor is Lucas
dispositive of the question presented. Its categorical rule-requiring
compensation when a regulation permanently deprives an owner
of "all economically beneficial uses" of his land,
505 U.S., at 1019-does not answer the question whether a regulation
prohibiting any economic use of land for 32 months must be
compensated. Petitioners attempt to bring this case under
the rule in Lucas by focusing exclusively on the property
during the moratoria is unavailing. This Court has consistently
rejected such an approach to the "denominator" question.
See, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis,
480 U.S. 470, 497. 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. Nevertheless,
the Court will consider petitioners' argument that the interest
in protecting property owners from bearing public burdens
"which, in all fairness and justice, should be borne
by the public as a whole," Armstrong v. United States,
364 U.S. 40, 49, justifies creating a new categorical rule.
(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. More
importantly, for the reasons set out in Justice O'Connor's
concurring opinion in Palazzolo, 533 U.S., at 636, the better
approach to a temporary regulatory taking claim requires careful
examination and weighing of all the relevant circumstances-only
one of which is the length of the delay. A narrower rule excluding
normal delays in processing permits, or covering only delays
of more than a year, would have a less severe impact on prevailing
practices, but would still impose serious constraints on the
planning process. Moratoria are an essential tool of successful
development. The interest in informed decisionmaking counsels
against adopting a per se rule that would treat such interim
measures as takings regardless of the planners' good faith,
the landowners' reasonable expectations, or the moratorium's
actual impact on property values. The financial constraints
of compensating property owners during a moratorium may force
officials to rush through the planning process or abandon
the practice altogether. And the interest in protecting the
decisional process is even stronger when an agency is developing
a regional plan than when it is considering a permit for a
single parcel. Here, TRPA obtained the benefit of comments
and criticisms from interested parties during its deliberations,
but a categorical rule tied to the deliberations' length would
likely create added pressure on decisionmakers to quickly
resolve land-use questions, disadvantaging landowners and
interest groups less organized or familiar with the planning
process. Moreover, with a temporary development ban, there
is less risk that individual landowners will be singled out
to bear a special burden that should be shared by the public
as a whole. It may be true that a moratorium lasting more
than one year should be viewed with special skepticism, but
the District Court found that the instant delay was not unreasonable.
The restriction's duration is one factor for a court to consider
in appraising regulatory takings claims, but with respect
to that factor, the temptation to adopt per se rules in either
direction must be resisted. Pp. 28-39.
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,
J., and Thomas, J., joined. Thomas, J., filed a dissenting
opinion, in which Scalia, J., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States
Reports. Readers are requested to notify the Reporter of Decisions,
Supreme Court of the United States, Washington, D. C. 20543,
of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes
SUPREME COURT OF THE UNITED STATES
TAHOE-SIERRA PRESERVATION COUNCIL, INC.,
et al., PETITIONERS v. TAHOE REGIONAL
PLANNING AGENCY et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2002]
Justice Stevens delivered the opinion of the Court.
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.1
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.
The first, Ordinance 81-5, was effective from August 24, 1981,
until August 26, 1983, whereas the second more restrictive
Resolution 83-21 was in effect from August 27, 1983, until
April 25, 1984. 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.
Although the question we decide relates only to that 32-month
period, a brief description of the events leading up to the
moratoria and a comment on the two permanent plans that TRPA
adopted thereafter will clarify the narrow scope of our holding.
The relevant facts are undisputed. The Court of Appeals,
while reversing the District Court on a question of law, accepted
all of its findings of fact, and no party challenges those
findings. All agree that Lake Tahoe is "uniquely beautiful,"
34 F. Supp. 2d 1226, 1230 (Nev. 1999), that President Clinton
was right to call it a " 'national treasure that must
be protected and preserved,' " ibid., and that Mark Twain
aptly described the clarity of its waters as " 'not merely
transparent, but dazzlingly, brilliantly so,' " ibid.
(emphasis added) (quoting M. Twain, Roughing It 174-175 (1872)).
Lake Tahoe's exceptional clarity is attributed to the absence
of algae that obscures the waters of most other lakes. Historically,
the lack of nitrogen and phosphorous, which nourish the growth
of algae, has ensured the transparency of its waters.2 Unfortunately,
the lake's pristine state has deteriorated rapidly over the
past 40 years; increased land development in the Lake Tahoe
Basin (Basin) has threatened the " 'noble sheet of blue
water' " beloved by Twain and countless others. 34 F.
Supp., at 1230. As the District Court found, "[d]ramatic
decreases in clarity first began to be noted in the 1950's/early
1960's, shortly after development at the lake began in earnest."
Id., at 1231. The lake's unsurpassed beauty, it seems, is
the wellspring of its undoing.
The upsurge of development in the area has caused "increased
nutrient loading of the lake largely because of the increase
in impervious coverage of land in the Basin resulting from
that development." Ibid.
"Impervious coverage-such as asphalt, concrete, buildings,
and even packed dirt-prevents precipitation from being absorbed
by the soil. Instead, the water is gathered and concentrated
by such coverage. Larger amounts of water flowing off a driveway
or a roof have more erosive force than scattered raindrops
falling over a dispersed area-especially one covered with
indigenous vegetation, which softens the impact of the raindrops
Given this trend, the District Court predicted that "unless
the process is stopped, the lake will lose its clarity and
its trademark blue color, becoming green and opaque for eternity."3
Those areas in the Basin that have steeper slopes produce
more runoff; therefore, they are usually considered "high
hazard" lands. Moreover, certain areas near streams or
wetlands known as "Stream Environment Zones" (SEZs)
are especially vulnerable to the impact of development because,
in their natural state, they act as filters for much of the
debris that runoff carries. Because "[t]he most obvious
response to this problem
is to restrict development
around the lake-especially in SEZ lands, as well as in areas
already naturally prone to runoff," id., at 1232, conservation
efforts have focused on controlling growth in these high hazard
In the 1960's, when the problems associated with the burgeoning
development began to receive significant attention, jurisdiction
over the Basin, which occupies 501 square miles, was shared
by the States of California and Nevada, five counties, several
municipalities, and the Forest Service of the Federal Government.
In 1968, the legislatures of the two States adopted the Tahoe
Regional Planning Compact, see 1968 Cal. Stats., ch. 998,
p. 1900, §1; 1968 Nev. Stats. 4, which Congress approved
in 1969, Pub. L. 91-148, 83 Stat. 360. The compact set goals
for the protection and preservation of the lake and created
TRPA as the agency assigned "to coordinate and regulate
development in the Basin and to conserve its natural resources."
Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,
440 U.S. 391, 394 (1979).
Pursuant to the compact, in 1972 TRPA adopted a Land Use Ordinance
that divided the land in the Basin into seven "land capability
districts," based largely on steepness but also taking
into consideration other factors affecting runoff. Each district
was assigned a "land coverage coefficient-a recommended
limit on the percentage of such land that could be covered
by impervious surface." Those limits ranged from 1% for
districts 1 and 2 to 30% for districts 6 and 7. Land in districts
1, 2, and 3 is characterized as "high hazard" or
"sensitive," while land in districts 4, 5, 6, and
7 is "low hazard" or "non-sensitive."
The SEZ lands, though often treated as a separate category,
were actually a subcategory of district 1. 34 F. Supp. 2d,
Unfortunately, the 1972 ordinance allowed numerous exceptions
and did not significantly limit the construction of new residential
housing. California became so dissatisfied with TRPA that
it withdrew its financial support and unilaterally imposed
stricter regulations on the part of the Basin located in California.
Eventually the two States, with the approval of Congress and
the President, adopted an extensive amendment to the compact
that became effective on December 19, 1980. Pub. L. 96-551,
94 Stat. 3233; Cal. Govt Code Ann. §66801 (West Supp.
2002); Nev. Rev. Stat. §277.200 (1980).
The 1980 Tahoe Regional Planning Compact (Compact) redefined
the structure, functions, and voting procedures of TRPA, App.
37, 94 Stat. 3235-3238; 34 F. Supp. 2d, at 1233, and directed
it to develop regional "environmental threshold carrying
capacities"-a term that embraced "standards for
air quality, water quality, soil conservation, vegetation
preservation and noise." 94 Stat. 3235, 3239. The Compact
provided that TRPA "shall adopt" those standards
within 18 months, and that "[w]ithin 1 year after"
their adoption (i.e., by June 19, 1983), it "shall"
adopt an amended regional plan that achieves and maintains
those carrying capacities. Id., at 3240. The Compact also
contained a finding by the Legislatures of California and
Nevada "that in order to make effective the regional
plan as revised by [TRPA], it is necessary to halt temporarily
works of development in the region which might otherwise absorb
the entire capability of the region for further development
or direct it out of harmony with the ultimate plan."
Id., at 3243. Accordingly, for the period prior to the adoption
of the final plan ("or until May 1, 1983, whichever is
earlier"), the Compact itself prohibited the development
of new subdivisions, condominiums, and apartment buildings,
and also prohibited each city and county in the Basin from
granting any more permits in 1981, 1982, or 1983 than had
been granted in 1978.4
During this period TRPA was also working on the development
of a regional water quality plan to comply with the Clean
Water Act, 33 U.S.C. § 1288 (1994 ed.). Despite the fact
that TRPA performed these obligations in "good faith
and to the best of its ability," 34 F. Supp. 2d., at
1233, after a few months it concluded that it could not meet
the deadlines in the Compact. On June 25, 1981, it therefore
enacted Ordinance 81-5 imposing the first of the two moratoria
on development that petitioners challenge in this proceeding.
The ordinance provided that it would become effective on August
24, 1981, and remain in effect pending the adoption of the
permanent plan required by the Compact. App. 159, 191.
The District Court made a detailed analysis of the ordinance,
noting that it might even prohibit hiking or picnicking on
SEZ lands, but construed it as essentially banning any construction
or other activity that involved the removal of vegetation
or the creation of land coverage on all SEZ lands, as well
as on class 1, 2, and 3 lands in California. 34 F. Supp. 2d,
at 1233-1235. Some permits could be obtained for such construction
in Nevada if certain findings were made. Id., at 1235. It
is undisputed, however, that Ordinance 81-5 prohibited the
construction of any new residences on SEZ lands in either
State and on class 1, 2, and 3 lands in California.
Given the complexity of the task of defining "environmental
threshold carrying capacities" and the division of opinion
within TRPA's governing board, the District Court found that
it was "unsurprising" that TRPA failed to adopt
those thresholds until August 26, 1982, roughly two months
after the Compact deadline. Ibid. Under a liberal reading
of the Compact, TRPA then had until August 26, 1983, to adopt
a new regional plan. 94 Stat. 3240. "Unfortunately, but
again not surprisingly, no regional plan was in place as of
that date." 34 F. Supp. 2d, at 1235. TRPA therefore adopted
Resolution 83-21, "which completely suspended all project
reviews and approvals, including the acceptance of new proposals,"
and which remained in effect until a new regional plan was
adopted on April 26, 1984. Thus, Resolution 83-21 imposed
an 8-month moratorium prohibiting all construction on high
hazard lands in either State. In combination, Ordinance 81-5
and Resolution 83-21 effectively prohibited all construction
on sensitive lands in California and on all SEZ lands in the
entire Basin for 32 months, and on sensitive lands in Nevada
(other than SEZ lands) for eight months. It is these two moratoria
that are at issue in this case.
On the same day that the 1984 plan was adopted, the State
of California filed an action seeking to enjoin its implementation
on the ground that it failed to establish land-use controls
sufficiently stringent to protect the Basin. Id., at 1236.
The District Court entered an injunction that was upheld by
the Court of Appeals and remained in effect until a completely
revised plan was adopted in 1987. Both the 1984 injunction
and the 1987 plan contained provisions that prohibited new
construction on sensitive lands in the Basin. As the case
comes to us, however, we have no occasion to consider the
validity of those provisions.
Approximately two months after the adoption of the 1984 Plan,
petitioners filed parallel actions against TRPA and other
defendants in federal courts in Nevada and California that
were ultimately consolidated for trial in the District of
Nevada. The petitioners include the Tahoe Sierra Preservation
Council, a nonprofit membership corporation representing about
2,000 owners of both improved and unimproved parcels of real
estate in the Lake Tahoe Basin, and a class of some 400 individual
owners of vacant lots located either on SEZ lands or in other
parts of districts 1, 2, or 3. Those individuals purchased
their properties prior to the effective date of the 1980 Compact,
App. 34, primarily for the purpose of constructing "at
a time of their choosing" a single-family home "to
serve as a permanent, retirement or vacation residence,"
id., at 36. When they made those purchases, they did so with
the understanding that such construction was authorized provided
that "they complied with all reasonable requirements
for building." Ibid.5
Petitioners' complaints gave rise to protracted litigation
that has produced four opinions by the Court of Appeals for
the Ninth Circuit and several published District Court opinions.6
For present purposes, however, we need only describe those
courts' disposition of the claim that three actions taken
by TRPA-Ordinance 81-5, Resolution 83-21, and the 1984 regional
plan-constituted takings of petitioners' property without
just compensation.7 Indeed, the challenge to the 1984 plan
is not before us because both the District Court and the Court
of Appeals held that it was the federal injunction against
implementing that plan, rather than the plan itself, that
caused the post-1984 injuries that petitioners allegedly suffered,
and those rulings are not encompassed within our limited grant
of certiorari.8 Thus, we limit our discussion to the lower
courts' disposition of the claims based on the 2-year moratorium
(Ordinance 81-5) and the ensuing 8-month moratorium (Resolution
The District Court began its constitutional analysis by identifying
the distinction between a direct government appropriation
of property without just compensation and a government regulation
that imposes such a severe restriction on the owner's use
of her property that it produces "nearly the same result
as a direct appropriation." 34 F. Supp. 2d, at 1238.
The court noted that all of the claims in this case "are
of the 'regulatory takings' variety." Id., at 1239. Citing
our decision in Agins v. City of Tiburon, 447 U.S. 255 (1980),
it then stated that a "regulation will constitute a taking
when either: (1) it does not substantially advance a legitimate
state interest; or (2) it denies the owner economically viable
use of her land." 34 F. Supp. 2d, at 1239. The District
Court rejected the first alternative based on its finding
that "further development on high hazard lands such as
[petitioners'] would lead to significant additional damage
to the lake." Id., at 1240.9 With respect to the second
alternative, the court first considered whether the analysis
adopted in Penn Central Transp. Co. v. New York City, 438
U.S. 104 (1978), would lead to the conclusion that TRPA had
effected a "partial taking," and then whether those
actions had effected a "total taking."10
Emphasizing the temporary nature of the regulations, the testimony
that the "average holding time of a lot in the Tahoe
area between lot purchase and home construction is twenty-five
years," and the failure of petitioners to offer specific
evidence of harm, the District Court concluded that "consideration
of the Penn Central factors clearly leads to the conclusion
that there was no taking." 34 F. Supp. 2d, at 1240. In
the absence of evidence regarding any of the individual plaintiffs,
the court evaluated the "average" purchasers' intent
and found that such purchasers "did not have reasonable,
investment-backed expectations that they would be able to
build single-family homes on their land within the six-year
period involved in this lawsuit."11
The District Court had more difficulty with the "total
taking" issue. Although it was satisfied that petitioners'
property did retain some value during the moratoria,12 it
found that they had been temporarily deprived of "all
economically viable use of their land." Id., at 1245.
The court concluded that those actions therefore constituted
"categorical" takings under our decision in Lucas
v. South Carolina Coastal Council, 505 U.S. 1003 (1992). It
rejected TRPA's response that Ordinance 81-5 and Resolution
83-21 were "reasonable temporary planning moratoria"
that should be excluded from Lucas' categorical approach.
The court thought it "fairly clear" that such interim
actions would not have been viewed as takings prior to our
decisions in Lucas and First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304
(1987), because "[z]oning boards, cities, counties and
other agencies used them all the time to 'maintain the status
quo pending study and governmental decision making.' "
34 F. Supp. 2d., at 1248-1249 (quoting Williams v. Central,
907 P.2d 701, 706 (Colo. App. 1995)). After expressing uncertainty
as to whether those cases required a holding that moratoria
on development automatically effect takings, the court concluded
that TRPA's actions did so, partly because neither the ordinance
nor the resolution, even though intended to be temporary from
the beginning, contained an express termination date. 34 F.
Supp. 2d, at 1250-1251.13 Accordingly, it ordered TRPA to
pay damages to most petitioners for the 32-month period from
August 24, 1981, to April 25, 1984, and to those owning class
1, 2, or 3 property in Nevada for the 8-month period from
August 27, 1983, to April 25, 1984. Id., at 1255.
Both parties appealed. TRPA successfully challenged the District
Court's takings determination, and petitioners unsuccessfully
challenged the dismissal of their claims based on the 1984
and 1987 plans. Petitioners did not, however, challenge the
District Court's findings or conclusions concerning its application
of Penn Central. With respect to the two moratoria, the Ninth
Circuit noted that petitioners had expressly disavowed an
argument "that the regulations constitute a taking under
the ad hoc balancing approach described in Penn Central"
and that they did not "dispute that the restrictions
imposed on their properties are appropriate means of securing
the purpose set forth in the Compact."14 Accordingly,
the only question before the court was "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.' " 216 F.3d 764, 773 (2000). Moreover, because
petitioners brought only a facial challenge, the narrow inquiry
before the Court of Appeals was whether the mere enactment
of the regulations constituted a taking.
Contrary to the District Court, the Court of Appeals held
that because the regulations had only a temporary impact on
petitioners' fee interest in the properties, no categorical
taking had occurred. It reasoned:
"Property interests may have many different dimensions.
For example, the dimensions of a property interest may include
a physical dimension (which describes the size and shape of
the property in question), a functional dimension (which describes
the extent to which an owner may use or dispose of the property
in question), and a temporal dimension (which describes the
duration of the property interest). At base, 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."
Id., at 774.
Putting to one side "cases of physical invasion or occupation,"
ibid., the court read our cases involving regulatory taking
claims to focus on the impact of a regulation on the parcel
as a whole. In its view a "planning regulation that prevents
the development of a parcel for a temporary period of time
is conceptually no different than a land-use restriction that
permanently denies all use on a discrete portion of property,
or that permanently restricts a type of use across all of
the parcel." Id., at 776. In each situation, a regulation
that affects only a portion of the parcel-whether limited
by time, use, or space-does not deprive the owner of all economically
The Court of Appeals distinguished Lucas as applying to the
" 'relatively rare' " case in which a regulation
denies all productive use of an entire parcel, whereas the
moratoria involve only a "temporal 'slice' " of
the fee interest and a form of regulation that is widespread
and well established. 216 F.3d, at 773-774. It also rejected
petitioners' argument that our decision in First English was
controlling. According to the Court of Appeals, First English
concerned the question whether compensation is an appropriate
remedy for a temporary taking and not whether or when such
a taking has occurred. 216 F.3d, at 778. Faced squarely with
the question whether a taking had occurred, the court held
that Penn Central was the appropriate framework for analysis.
Petitioners, however, had failed to challenge the District
Court's conclusion that they could not make out a taking claim
under the Penn Central
Over the dissent of five judges, the Ninth Circuit denied
a petition for rehearing en banc. 228 F.3d 998 (2000). In
the dissenters' opinion, the panel's holding was not faithful
to this Court's decisions in First English and Lucas, nor
to Justice Holmes admonition in Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 416 (1922), that " 'a strong public desire
to improve the public condition is not enough to warrant achieving
the desire by a shorter cut than the constitutional way of
paying for the change.' " 228 F.3d, at 1003. Because
of the importance of the case, we granted certiorari limited
to the question stated at the beginning of this opinion. 533
U.S. 948 (2001). We now affirm.
Petitioners make only a facial attack on Ordinance
81-5 and Resolution 83-21. They contend that 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," Keystone Bituminous Coal
Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987), that is made
especially steep by their desire for a categorical rule requiring
compensation whenever the government imposes such a moratorium
on development. Under their proposed rule, there is no need
to evaluate the landowners' investment-backed expectations,
the actual impact of the regulation on any individual, the
importance of the public interest served by the regulation,
or the reasons for imposing the temporary restriction. For
petitioners, it is enough that a regulation imposes a temporary
deprivation-no matter how brief-of all economically viable
use to trigger a per se rule that a taking has occurred. Petitioners
assert that our opinions in 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, in all fairness and justice, should be borne by the
public as a whole." Armstrong v. United States, 364 U.S.
40, 49 (1960).
We shall first explain why our cases do not support their
proposed categorical rule-indeed, fairly read, they implicitly
reject it. Next, we shall explain why the Armstrong principle
requires rejection of that rule as well as the less extreme
position advanced by petitioners at oral argument. 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.16 Resisting "[t]he temptation
to adopt what amount to per se rules in either direction,"
Palazzolo v. Rhode Island, 533 U.S. 606, 636 (2001) (O'Connor,
J., concurring), we conclude that the circumstances in this
case are best analyzed within the Penn Central framework.
The text of the Fifth Amendment itself provides a basis for
drawing a distinction between physical takings and regulatory
takings. Its plain language requires the payment of compensation
whenever the government acquires private property for a public
purpose, whether the acquisition is the result of a condemnation
proceeding or a physical appropriation. But the Constitution
contains no comparable reference to regulations that prohibit
a property owner from making certain uses of her private property.17
Our jurisprudence involving condemnations and physical takings
is as old as the Republic and, for the most part, involves
the straightforward application of per se rules. Our regulatory
takings jurisprudence, in contrast, is of more recent vintage
and is characterized by "essentially ad hoc, factual
inquiries," Penn Central, 438 U.S., at 124, designed
to allow "careful examination and weighing of all the
relevant circumstances." Palazzolo, 533 U.S., at 636
(O'Connor, J., concurring).
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, United States v. Pewee
Coal Co., 341 U.S. 114, 115 (1951), regardless of whether
the interest that is taken constitutes an entire parcel or
merely a part thereof. Thus, compensation is mandated when
a leasehold is taken and the government occupies the property
for its own purposes, even though that use is temporary. United
States v. General Motors Corp., 323 U.S. 373 (1945), United
States v. Petty Motor Co., 327 U.S. 372 (1946). Similarly,
when the government appropriates part of a rooftop in order
to provide cable TV access for apartment tenants, Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982);
or when its planes use private airspace to approach a government
airport, United States v. Causby, 328 U.S. 256 (1946), it
is required to pay for that share no matter how small. But
a government regulation that merely prohibits landlords from
evicting tenants unwilling to pay a higher rent, Block v.
Hirsh, 256 U.S. 135 (1921); that bans certain private uses
of a portion of an owner's property, Village of Euclid v.
Ambler Realty Co., 272 U.S. 365 (1926); Keystone Bituminous
Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987); or that forbids
the private use of certain airspace, Penn Central Transp.
Co. v. New York City, 438 U.S. 104 (1978), does not constitute
a categorical taking. "The first category of cases requires
courts to apply a clear rule; the second necessarily entails
complex factual assessments of the purposes and economic effects
of government actions." Yee v. Escondido, 503 U.S. 519,
523 (1992). See also Loretto, 458 U.S., at 440; Keystone,
480 U.S., at 489, n. 18.
This longstanding distinction between acquisitions of property
for public use, on the one hand, and regulations prohibiting
private uses, on the other, makes it inappropriate to treat
cases involving physical takings as controlling precedents
for the evaluation of a claim that there has been a "regulatory
taking,"18 and vice versa. For the same reason that we
do not ask whether a physical appropriation advances a substantial
government interest or whether it deprives the owner of all
economically valuable use, we do not apply our precedent from
the physical takings context to regulatory takings claims.
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.19 "This case does not
present the 'classi[c] taking' in which the government directly
appropriates private property for its own use," Eastern
Enterprises v. Apfel, 524 U.S. 498, 522 (1998); instead the
interference with property rights "arises from some public
program adjusting the benefits and burdens of economic life
to promote the common good," Penn Central, 438 U.S.,
Perhaps recognizing this fundamental distinction, petitioners
wisely do not place all their emphasis on analogies to physical
takings cases. Instead, they rely principally on our decision
in Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992)-a regulatory takings case that, nevertheless, applied
a categorical rule-to argue that the Penn Central framework
is inapplicable here. A brief review of some of the cases
that led to our decision in Lucas, however, will help to explain
why the holding in that case does not answer the question
As we noted in Lucas, it was Justice Holmes' opinion in Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393 (1922),20 that gave birth
to our regulatory takings jurisprudence.21 In subsequent opinions
we have repeatedly and consistently endorsed Holmes' observation
that "if regulation goes too far it will be recognized
as a taking." Id., at 415. Justice Holmes did not provide
a standard for determining when a regulation goes "too
far," but he did reject the view expressed in Justice
Brandeis' dissent that there could not be a taking because
the property remained in the possession of the owner and had
not been appropriated or used by the public.22 After Mahon,
neither a physical appropriation nor a public use has ever
been a necessary component of a "regulatory taking."
In the decades following that decision, we have "generally
eschewed" any set formula for determining how far is
too far, choosing instead to engage in " 'essentially
ad hoc, factual inquiries.' " Lucas, 505 U.S., at 1015
(quoting Penn Central, 438 U.S., at 124). Indeed, we still
resist the temptation to adopt per se rules in our cases involving
partial regulatory takings, preferring to examine "a
number of factors" rather than a simple "mathematically
precise" formula.23 Justice Brennan's opinion for the
Court in Penn Central did, however, make it clear that even
though multiple factors are relevant in the analysis of regulatory
takings claims, in such cases 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 entirely abrogated. 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.' " Id., at 130-131.
This requirement that "the aggregate must be viewed in
its entirety" explains why, for example, a 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. Andrus v. Allard,
444 U.S. 51, 66 (1979). It also clarifies why restrictions
on the use of only limited portions of the parcel, such as
set-back ordinances, Gorieb v. Fox, 274 U.S. 603 (1927), or
a requirement that coal pillars be left in place to prevent
mine subsidence, Keystone Bituminous Coal Assn. v. DeBenedictis,
480 U.S., at 498, were not considered regulatory takings.
In each of these cases, we affirmed that "where an owner
possesses a full 'bundle' of property rights, the destruction
of one 'strand' of the bundle is not a taking." Andrus,
444 U.S., at 65-66.
While the foregoing cases considered whether particular regulations
had "gone too far" and were therefore invalid, none
of them addressed the separate remedial question of how compensation
is measured once a regulatory taking is established. In his
dissenting opinion in San Diego Gas & Elec. Co. v. San
Diego, 450 U.S. 621, 636 (1981), Justice Brennan identified
that question and explained how he would answer it:
"The constitutional rule I propose requires that, once
a court finds that a police power regulation has effected
a 'taking,' the government entity must pay just compensation
for the period commencing on the date the regulation first
effected the 'taking,' and ending on the date the government
entity chooses to rescind or otherwise amend the regulation."
Id., at 658.
Justice Brennan's proposed rule was subsequently endorsed
by the Court in First English, 482 U.S., at 315, 318, 321.
First English was certainly a significant decision, and nothing
that we say today qualifies its holding. Nonetheless, it is
important to recognize that we did not address in that case
the quite different and logically prior question whether the
temporary regulation at issue had in fact constituted a taking.
In First English, the Court unambiguously and repeatedly characterized
the issue to be decided as a "compensation question"
or a "remedial question." Id., at 311 ("The
disposition of the case on these grounds isolates the remedial
question for our consideration"); see also id., at 313,
318. And the Court's statement of its holding was equally
unambiguous: "We merely hold that where the government's
activities have already worked a taking of all use of property,
no subsequent action by the government can relieve it of the
duty to provide compensation for the period during which the
taking was effective." Id., at 321 (emphasis added).
In fact, First English expressly disavowed any ruling on the
merits of the takings issue because the California courts
had decided the remedial question on the assumption that a
taking had been alleged. Id., at 312-313 ("We reject
appellee's suggestion that
we must independently evaluate
the adequacy of the complaint and resolve the takings claim
on the merits before we can reach the remedial question").
After our remand, the California courts concluded that there
had not been a taking, First English Evangelical Church of
Glendale v. County of Los Angeles, 210 Cal. App. 3d 1353,
258 Cal. Rptr. 893 (1989), and we declined review of that
decision, 493 U.S. 1056 (1990).
To the extent that the Court in First English referenced the
antecedent takings question, we identified two reasons why
a regulation temporarily denying an owner all use of her property
might not constitute a taking. First, we recognized that "the
county might avoid the conclusion that a compensable taking
had occurred by establishing that the denial of all use was
insulated as a part of the State's authority to enact safety
regulations." 482 U.S., at 313. Second, we limited our
holding "to the facts presented" and recognized
"the quite different questions that would arise in the
case of normal delays in obtaining building permits, changes
in zoning ordinances, variances, and the like which [were]
not before us." Id., at 321. Thus, our decision in First
English surely did not approve, and implicitly rejected, the
categorical submission that petitioners are now advocating.
Similarly, our decision in Lucas is not dispositive of the
question presented. Although Lucas endorsed and applied a
categorical rule, it was not the one that petitioners propose.
Lucas purchased two residential lots in 1988 for $975,000.
These lots were rendered "valueless" by a statute
enacted two years later. The trial court found that a taking
had occurred and ordered compensation of $1,232,387.50, representing
the value of the fee simple estate, plus interest. As the
statute read at the time of the trial, it effected a taking
that "was unconditional and permanent." 505 U.S.,
at 1012. While the State's appeal was pending, the statute
was amended to authorize exceptions that might have allowed
Lucas to obtain a building permit. Despite the fact that the
amendment gave the State Supreme Court the opportunity to
dispose of the appeal on ripeness grounds, it resolved the
merits of the permanent takings claim and reversed. Since
"Lucas had no reason to proceed on a 'temporary taking'
theory at trial," we decided the case on the permanent
taking theory that both the trial court and the State Supreme
Court had addressed. Ibid.
The categorical rule that we applied in Lucas states that
compensation is required when a regulation deprives an owner
of "all economically beneficial uses" of his land.
Id., at 1019. Under that rule, a statute that "wholly
eliminated the value" of Lucas' fee simple title clearly
qualified as a taking. But our holding was limited to "the
extraordinary circumstance when no productive or economically
beneficial use of land is permitted." Id., at 1017. The
emphasis on the word "no" in the text of the opinion
was, in effect, reiterated in a footnote explaining that the
categorical rule would not apply if the diminution in value
were 95% instead of 100%. Id., at 1019, n. 8.24 Anything less
than a "complete elimination of value," or a "total
loss," the Court acknowledged, would require the kind
of analysis applied in Penn Central. Lucas, 505 U.S., at 1019-1020,
Certainly, our holding that the permanent "obliteration
of the value" of a fee simple estate constitutes a categorical
taking does not answer the question whether a regulation prohibiting
any economic use of land for a 32-month period has the same
legal effect. Petitioners seek to bring this case under the
rule announced in Lucas by arguing that we can effectively
sever a 32-month segment from the remainder of each landowner's
fee simple estate, and then ask whether that segment has been
taken in its entirety by the moratoria. Of course, defining
the property interest taken in terms of the very regulation
being challenged is circular. 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. See also, Concrete Pipe &
Products of Cal., Inc. v. Construction Laborers Pension Trust
for Southern Cal., 508 U.S. 602, 644 (1993) ("To the
extent that any portion of property is taken, that portion
is always taken in its entirety; the relevant question, however,
is whether the property taken is all, or only a portion of,
the parcel in question"). Thus, the District Court erred
when it disaggregated petitioners' property into temporal
segments corresponding to the regulations at issue and then
analyzed whether petitioners were deprived of all economically
viable use during each period. 34 F. Supp. 2d, at 1242-1245.
The starting point for the court's analysis should have been
to ask whether there was a total taking of the entire parcel;
if not, then Penn Central was the proper framework.26
An interest in real property is defined by the metes and bounds
that describe its geographic dimensions and the term of years
that describes the temporal aspect of the owner's interest.
See Restatement of Property §§7-9 (1936). 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. Cf. Agins v. City of Tiburon, 447 U.S.,
at 263, n. 9 ("Even if the appellants' ability to sell
their property was limited during the pendency of the condemnation
proceeding, the appellants were free to sell or develop their
property when the proceedings ended. Mere fluctuations in
value during the process of governmental decisionmaking, absent
extraordinary delay, are 'incidents of ownership. They cannot
be considered as a "taking" in the constitutional
sense' ") (quoting Danforth v. United States, 308 U.S.
271, 285 (1939))).
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. Nevertheless,
we will consider whether the interest in protecting individual
property owners from bearing public burdens "which, in
all fairness and justice, should be borne by the public as
a whole," Armstrong v. United States, 364 U.S., at 49,
justifies creating a new rule for these circumstances.27
Considerations of "fairness and justice" arguably
could support the conclusion that TRPA's moratoria were takings
of petitioners' property based on any of seven different theories.
First, even though we have not previously done so, we might
now announce a categorical rule that, in the interest of fairness
and justice, compensation is required whenever government
temporarily deprives an owner of all economically viable use
of her property. Second, we could craft a narrower rule that
would cover all temporary land-use restrictions except those
"normal delays in obtaining building permits, changes
in zoning ordinances, variances, and the like" which
were put to one side in our opinion in First English, 482
U.S., at 321. Third, we could adopt a rule like the one suggested
by an amicus supporting petitioners that would "allow
a short fixed period for deliberations to take place without
compensation-say maximum one year-after which the just compensation
requirements" would "kick in."28 Fourth, with
the benefit of hindsight, we might characterize the successive
actions of TRPA as a "series of rolling moratoria"
that were the functional equivalent of a permanent taking.29
Fifth, were it not for the findings of the District Court
that TRPA acted diligently and in good faith, we might have
concluded that the agency was stalling in order to avoid promulgating
the environmental threshold carrying capacities and regional
plan mandated by the 1980 Compact. Cf. Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 698 (1999). Sixth,
apart from the District Court's finding that TRPA's actions
represented a proportional response to a serious risk of harm
to the lake, petitioners might have argued that the moratoria
did not substantially advance a legitimate state interest,
see Agins and Monterey. Finally, if petitioners had challenged
the application of the moratoria to their individual parcels,
instead of making a facial challenge, some of them might have
prevailed under a Penn Central analysis.
As the case comes to us, however, none of the last four theories
is available. The "rolling moratoria" theory was
presented in the petition for certiorari, but our order granting
review did not encompass that issue, 533 U.S. 948 (2001);
the case was tried in the District Court and reviewed in the
Court of Appeals on the theory that each of the two moratoria
was a separate taking, one for a 2-year period and the other
for an 8-month period. 216 F.3d, at 769. And, as we have already
noted, recovery on either a bad faith theory or a theory that
the state interests were insubstantial is foreclosed by the
District Court's unchallenged findings of fact. Recovery under
a Penn Central analysis is also foreclosed both because petitioners
expressly disavowed that theory, and because they did not
appeal from the District Court's conclusion that the evidence
would not support it. Nonetheless, each of the three per se
theories is fairly encompassed within the question that we
decided to answer.
With respect to these theories, the ultimate constitutional
question is whether the concepts of "fairness and justice"
that underlie the Takings Clause will be better served by
one of these categorical rules or by a Penn Central inquiry
into all of the relevant circumstances in particular cases.
From that perspective, the extreme categorical rule that any
deprivation of all economic use, no matter how brief, constitutes
a compensable taking surely cannot be sustained. Petitioners'
broad submission would apply to numerous "normal delays
in obtaining building permits, changes in zoning ordinances,
variances, and the like," 482 U.S., at 321, as well as
to orders temporarily prohibiting access to crime scenes,
businesses that violate health codes, fire-damaged buildings,
or other areas that we cannot now foresee. Such a rule would
undoubtedly require changes in numerous practices that have
long been considered permissible exercises of the police power.
As Justice Holmes warned in Mahon, "[g]overnment 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 law." 260 U.S., at 413. 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
More importantly, for reasons set out at some length by Justice
O'Connor in her concurring opinion in Palazzolo v. Rhode Island,
533 U.S., at 636 (2001), we are persuaded that the better
approach to claims that a regulation has effected a temporary
taking "requires careful examination and weighing of
all the relevant circumstances." In that opinion, Justice
O'Connor specifically considered the role that the "temporal
relationship between regulatory enactment and title acquisition"
should play in the analysis of a takings claim. Id., at 632.
We have no occasion to address that particular issue in this
case, because it involves a different temporal relationship-the
distinction between a temporary restriction and one that is
permanent. Her comments on the "fairness and justice"
inquiry are, nevertheless, instructive:
"Today's holding does not mean that the timing of the
regulation's enactment relative to the acquisition of title
is immaterial to the Penn Central analysis. Indeed, it would
be just as much error to expunge this consideration from the
takings inquiry as it would be to accord it exclusive significance.
Our polestar instead remains the principles set forth in Penn
Central itself and our other cases that govern partial regulatory
takings. Under these cases, interference with investment-backed
expectations is one of a number of factors that a court must
"The Fifth Amendment forbids the taking of private property
for public use without just compensation. We have recognized
that this constitutional guarantee is ' "designed to
bar Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne
by the public as a whole." ' Penn Central, [438 U.S.],
at 123-124 (quoting Armstrong v. United States, 364 U.S. 40,
49 (1960)). The concepts of 'fairness and justice' that underlie
the Takings Clause, of course, are less than fully determinate.
Accordingly, we have eschewed 'any "set formula"
for determining when "justice and fairness" require
that economic injuries caused by public action be compensated
by the government, rather than remain disproportionately concentrated
on a few persons." Penn Central, supra, at 124 (quoting
Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962)). The outcome
instead 'depends largely "upon the particular circumstances
[in that] case." ' Penn Central, supra, at 124 (quoting
United States v. Central Eureka Mining Co., 357 U.S. 155,
168 (1958))." Id., at 633.
In rejecting petitioners' per se rule, we do not hold that
the temporary nature of a land-use restriction precludes finding
that it effects a taking; we simply recognize that it should
not be given exclusive significance one way or the other.
A narrower rule that excluded the normal delays associated
with processing permits, or that covered only delays of more
than a year, would certainly have a less severe impact on
prevailing practices, but it would still impose serious financial
constraints on the planning process.31 Unlike the "extraordinary
circumstance" in which the government deprives a property
owner of all economic use, Lucas, 505 U.S., at 1017, moratoria
like Ordinance 81-5 and Resolution 83-21 are used widely among
land-use planners to preserve the status quo while formulating
a more permanent development strategy.32 In fact, the consensus
in the planning community appears to be that moratoria, or
"interim development controls" as they are often
called, are an essential tool of successful development.33
Yet even the weak version of petitioners' categorical rule
would treat these interim measures as takings regardless of
the good faith of the planners, the reasonable expectations
of the landowners, or the actual impact of the moratorium
on property values.34
The interest in facilitating informed decisionmaking by regulatory
agencies counsels against adopting a per se rule that would
impose such severe costs on their deliberations. Otherwise,
the financial constraints of compensating property owners
during a moratorium may force officials to rush through the
planning process or to abandon the practice altogether. To
the extent that communities are forced to abandon using moratoria,
landowners will have incentives to develop their property
quickly before a comprehensive plan can be enacted, thereby
fostering inefficient and ill-conceived growth. A finding
in the 1980 Compact itself, which presumably was endorsed
by all three legislative bodies that participated in its enactment,
attests to the importance of that concern. 94 Stat. 3243 ("The
legislatures of the States of California and Nevada find that
in order to make effective the regional plan as revised by
the agency, it is necessary to halt temporarily works of development
in the region which might otherwise absorb the entire capability
of the region for further development or direct it out of
harmony with the ultimate plan").
As Justice Kennedy explained in his opinion for the Court
in Palazzolo, it is the interest in informed decisionmaking
that underlies our decisions imposing a strict ripeness requirement
on landowners asserting regulatory takings claims:
"These cases stand for the important principle that a
landowner may not establish a taking before a land-use authority
has the opportunity, using its own reasonable procedures,
to decide and explain the reach of a challenged regulation.
Under our ripeness rules a takings claim based on a law or
regulation which is alleged to go too far in burdening property
depends upon the landowner's first having followed reasonable
and necessary steps to allow regulatory agencies to exercise
their full discretion in considering development plans for
the property, including the opportunity to grant any variances
or waivers allowed by law. As a general rule, until these
ordinary processes have been followed the extent of the restriction
on property is not known and a regulatory taking has not yet
been established. See Suitum [v. Tahoe Regional Planning Agency,
520 U.S. 725, 736, and n. 10 (1997)] (noting difficulty of
demonstrating that 'mere enactment' of regulations restricting
land use effects a taking)." 533 U.S., at 620-621.
We would create a perverse system of incentives were we to
hold that landowners must wait for a taking claim to ripen
so that planners can make well-reasoned decisions while, at
the same time, holding that those planners must compensate
landowners for the delay.
Indeed, the interest in protecting the decisional process
is even stronger when an agency is developing a regional plan
than when it is considering a permit for a single parcel.
In the proceedings involving the Lake Tahoe Basin, for example,
the moratoria enabled TRPA to obtain the benefit of comments
and criticisms from interested parties, such as the petitioners,
during its deliberations.35 Since a categorical rule tied
to the length of deliberations would likely create added pressure
on decisionmakers to reach a quick resolution of land-use
questions, it would only serve to disadvantage those landowners
and interest groups who are not as organized or familiar with
the planning process. Moreover, with a temporary ban on development
there is a lesser risk that individual landowners will be
"singled out" to bear a special burden that should
be shared by the public as a whole. Nollan v. California Coastal
Comm'n, 483 U.S. 825, 835 (1987). At least with a moratorium
there is a clear "reciprocity of advantage," Mahon,
260 U.S., at 415, because it protects the interests of all
affected landowners against immediate construction that might
be inconsistent with the provisions of the plan that is ultimately
adopted. "While each of us is burdened somewhat by such
restrictions, we, in turn, benefit greatly from the restrictions
that are placed on others." Keystone, 480 U.S., at 491.
In fact, there is reason to believe property values often
will continue to increase despite a moratorium. See, e.g.,
Growth Properties, Inc. v. Klingbeil Holding Co., 419 F. Supp.
212, 218 (Md. 1976) (noting that land values could be expected
to increase 20% during a 5-year moratorium on development).
Cf. Forest Properties, Inc. v. United States, 177 F.3d 1360,
1367 (CA Fed. 1999) (record showed that market value of the
entire parcel increased despite denial of permit to fill and
develop lake-bottom property). Such an increase makes sense
in this context because property values throughout the Basin
can be expected to reflect the added assurance that Lake Tahoe
will remain in its pristine state. Since in some cases a 1-year
moratorium may not impose a burden at all, we should not adopt
a rule that assumes moratoria always force individuals to
bear a special burden that should be shared by the public
as a whole.
It may well be true that any moratorium that lasts for more
than one year should be viewed with special skepticism. But
given the fact that the District Court found that the 32 months
required by TRPA to formulate the 1984 Regional Plan was not
unreasonable, we could not possibly conclude that every delay
of over one year is constitutionally unacceptable.36 Formulating
a general rule of this kind is a suitable task for state legislatures.37
In our view, the duration of the restriction is one of the
important factors that a court must consider in the appraisal
of a regulatory takings claim, but with respect to that factor
as with respect to other factors, the "temptation to
adopt what amount to per se rules in either direction must
be resisted." Palazzolo, 533 U.S., at 636 (O'Connor,
J., concurring). There may be moratoria that last longer than
one year which interfere with reasonable investment-backed
expectations, but as the District Court's opinion illustrates,
petitioners' proposed rule is simply "too blunt an instrument,"
for identifying those cases. Id., at 628. We conclude, therefore,
that the interest in "fairness and justice" will
be best served by relying on the familiar Penn Central approach
when deciding cases like this, rather than by attempting to
craft a new categorical rule.
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
1. Often referred to as the "Just Compensation Clause,"
the final Clause of the Fifth Amendment provides: "
nor shall private property be taken for public use without
just compensation." It applies to the States as well
as the Federal Government. Chicago, B. & Q. R. Co. v.
Chicago, 166 U.S. 226, 239, 241 (1897); Webb's Fabulous Pharmacies,
Inc. v. Beckwith, 449 U.S. 155, 160 (1980).
2. According to a Senate Report: "Only two other sizable
lakes in the world are of comparable quality-Crater Lake in
Oregon, which is protected as part of the Crater Lake National
Park, and Lake Baikal in the [former] Soviet Union. Only Lake
Tahoe, however, is so readily accessible from large metropolitan
centers and is so adaptable to urban development." S.
Rep. No. 91-510, pp. 3-4 (1969).
3. The District Court added: "Or at least, for a very,
very long time. Estimates are that, should the lake turn green,
it could take over 700 years for it to return to its natural
state, if that were ever possible at all." 34 F. Supp.
2d, at 1231.
4. App. 104-107. This moratorium did not apply to rights that
had vested before the effective date of the 1980 Compact.
Id., at 107-108. Two months after the 1980 Compact became
effective, TRPA adopted its Ordinance 81-1 broadly defining
the term "project" to include the construction of
any new residence and requiring owners of land in districts
1, 2, or 3, to get a permit from TRPA before beginning construction
of homes on their property. 34 F. Supp. 2d 1226, 1233 (Nev.
5. As explained above, supra, at 4, the petitioners who purchased
land after the 1972 compact did so amidst a heavily regulated
zoning scheme. Their property was already classified as part
of land capability districts 1, 2, and 3, or SEZ land. And
each land classification was subject to regulations as to
the degree of artificial disturbance the land could safely
6. 911 F.2d 1331 (CA9 1990); 938 F.2d 153 (CA9 1991); 34 F.3d
753 (CA9 1994); 216 F.3d 764 (CA9 2000); 611 F. Supp. 110
(Nev. 1985); 808 F. Supp. 1474 (Nev. 1992); 808 F. Supp. 1484
7. In 1991, petitioners amended their complaint to allege
that the adoption of the 1987 plan also constituted an unconstitutional
taking. Ultimately both the District Court and the Court of
Appeals held that this claim was barred by California's 1-year
statute of limitations and Nevada's 2-year statute of limitations.
See 216 F.3d, at 785-789. Although the validity of the 1987
plan is not before us, we note that other litigants have challenged
certain applications of that plan. See Suitum v. Tahoe Regional
Planning Agency, 520 U.S. 725 (1997).
8. In his dissent, The Chief Justice contends that the 1984
plan is before us because the 1980 Compact is a proximate
cause of petitioners' injuries, post, at 1-3. Petitioners,
however, do not challenge the Court of Appeals' holding on
causation in their briefs on the merits, presumably because
they understood when we granted certiorari on the question
"[w]hether the Court of Appeals properly determined that
a temporary moratorium on land development does not constitute
a taking of property requiring compensation under the Takings
Clause of the United States Constitution," 533 U.S. 948
(2001), we were only interested in the narrow question decided
today. Throughout the District Court and Court of Appeals
decisions the phrase "temporary moratorium" refers
to two things and two things only: Ordinance 81-5 and Resolution
83-21. The dissent's novel theory of causation was not briefed,
nor was it discussed during oral argument.
9. As the District Court explained: "There is a direct
connection between the potential development of plaintiffs'
lands and the harm the lake would suffer as a result thereof.
Further, there has been no suggestion by the plaintiffs that
any less severe response would have adequately addressed the
problems the lake was facing. Thus it is difficult to see
how a more proportional response could have been adopted.
Given that TRPA's actions had wide-spread application, and
were not aimed at an individual landowner, the plaintiffs
would appear to bear the burden of proof on this point. They
have not met this burden-nor have they really attempted to
do so. Although unwilling to stipulate to the fact that TRPA's
actions substantially advanced a legitimate state interest,
the plaintiffs did not seriously contest the matter at trial."
34 F. Supp., at 1240 (citation omitted).
10. The Penn Central analysis involves "a complex of
factors including the regulation's economic effect on the
landowner, the extent to which the regulation interferes with
reasonable investment-backed expectations, and the character
of the government action." Palazzolo v. Rhode Island,
533 U.S. 606, 617 (2001).
11. 34 F. Supp. 2d, at 1241. The court stated that petitioners
"had plenty of time to build before the restrictions
went into effect-and almost everyone in the Tahoe Basin knew
in the late 1970s that a crackdown on development was in the
works." In addition, the court found "the fact that
no evidence was introduced regarding the specific diminution
in value of any of the plaintiffs' individual properties clearly
weighs against a finding that there was a partial taking of
the plaintiffs' property." Ibid.
12. The pretrial order describes purchases by the United States
Forest Service of private lots in environmentally sensitive
areas during the periods when the two moratoria were in effect.
During the 2-year period ending on August 26, 1983, it purchased
215 parcels in California at an average price of over $19,000
and 45 parcels in Nevada at an average price of over $39,000;
during the ensuing 8-month period, it purchased 167 California
parcels at an average price of over $29,000 and 27 Nevada
parcels at an average price of over $41,000. App. 76-77. Moreover,
during those periods some owners sold sewer and building allocations
to owners of higher capability lots "for between $15,000
and $30,000." Id., at 77.
13. Ordinance 81-5 specified that it would terminate when
the regional plan became finalized. And Resolution 83-21 was
limited to 90 days, but was renewed for an additional term.
Nevertheless, the District Court distinguished these measures
from true "temporary" moratoria because there was
no fixed date for when they would terminate. 34 F. Supp. 2d,
14. 216 F.3d, at 773. "Below, the district court ruled
that the regulations did not constitute a taking under Penn
Central's ad hoc approach, but that they did constitute a
categorical taking under Lucas [v. South Carolina Coastal
Council, 505 U.S. 1003 (1992)]. See Tahoe-Sierra Preservation
Council, 34 F. Supp. 2d at 1238-45. The defendants appealed
the district court's latter holding, but the plaintiffs did
not appeal the former. And even if arguments regarding the
Penn Central test were fairly encompassed by the defendants'
appeal, the plaintiffs have stated explicitly on this appeal
that they do not argue that the regulations constitute a taking
under the ad hoc balancing approach described in Penn Central."
15. The Court of Appeals added: "Each of these three
types of regulation will have an impact on the parcel's value,
because each will affect an aspect of the owner's 'use' of
the property-by restricting when the 'use' may occur, where
the 'use' may occur, or how the 'use' may occur. Prior to
Agins [v. City of Tiburon, 447 U.S. 255 1980)], the Court
had already rejected takings challenges to regulations eliminating
all 'use' on a portion of the property, and to regulations
restricting the type of 'use' across the breadth of the property.
See Penn Central, 438 U.S. at 130-31; Keystone Bituminous
Coal Ass'n, 480 U.S. at 498-99; Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 384, 397
(1926) (75% diminution
in value caused by zoning law); see also William C. Haas &
Co. v. City & County of San Francisco, 605 F.2d 1117,
1120 (9th Cir. 1979) (value reduced from $2,000,000 to $100,000).
In those cases, the Court 'uniformly reject[ed] the proposition
that diminution in property value, standing alone, can establish
a "taking." ' Penn Central, 438 U.S. at 131
see also Concrete Pipe and Products, Inc. v. Construction
Laborers Pension Trust, 508 U.S. 602, 645
is no plausible basis on which to distinguish a similar diminution
in value that results from a temporary suspension of development."
Id., at 776-777.
16. Despite our clear refusal to hold that a moratorium never
effects a taking, The Chief Justice accuses us of "allow[ing]
the government to
take private property without paying
for it," post, at 8. It may be true that under a Penn
Central analysis petitioners' land was taken and compensation
would be due. But petitioners failed to challenge the District
Court's conclusion that there was no taking under Penn Central.
Supra, at 12.
17. In determining whether government action affecting property
is an unconstitutional deprivation of ownership rights under
the Just Compensation Clause, a court must interpret the word
"taken." When the government condemns or physically
appropriates the property, the fact of a taking is typically
obvious and undisputed. When, however, the owner contends
a taking has occurred because a law or regulation imposes
restrictions so severe that they are tantamount to a condemnation
or appropriation, the predicate of a taking is not self-evident,
and the analysis is more complex.
18. To illustrate the importance of the distinction, the Court
in Loretto, 458 U.S., at 430, compared two wartime takings
cases, United States v. Pewee Coal Co., 341 U.S. 114, 116
(1951), in which there had been an "actual taking of
possession and control" of a coal mine, and United States
v. Central Eureka Mining Co., 357 U.S. 155 (1958), in which
"by contrast, the Court found no taking where the Government
had issued a wartime order requiring nonessential gold mines
to cease operations
." 458 U.S., at 431. Loretto
then relied on this distinction in dismissing the argument
that our discussion of the physical taking at issue in the
case would affect landlord-tenant laws. "So long as these
regulations do not require the landlord to suffer the physical
occupation of a portion of his building by a third party,
they will be analyzed under the multifactor inquiry generally
applicable to nonpossessory governmental activity." Id.,
at 440 (citing Penn Central).
19. According to The Chief Justice's dissent, even a temporary,
use-prohibiting regulation should be governed by our physical
takings cases because, under Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1017 (1992), "from the landowner's
point of view," the moratorium is the functional equivalent
of a forced leasehold, post, at 6-7. Of course, from both
the landowner's and the government's standpoint there are
critical differences between a leasehold and a moratorium.
Condemnation of a leasehold gives the government possession
of the property, the right to admit and exclude others, and
the right to use it for a public purpose. A regulatory taking,
by contrast, does not give the government any right to use
the property, nor does it dispossess the owner or affect her
right to exclude others. The Chief Justice stretches Lucas'
"equivalence" language too far. For even a regulation
that constitutes only a minor infringement on property may,
from the landowner's perspective, be the functional equivalent
of an appropriation. Lucas carved out a narrow exception to
the rules governing regulatory takings for the "extraordinary
circumstance" of a permanent deprivation of all beneficial
use. The exception was only partially justified based on the
"equivalence" theory cited by his dissent. It was
also justified on the theory that, in the "relatively
rare situations where the government has deprived a landowner
of all economically beneficial uses," it is less realistic
to assume that the regulation will secure an "average
reciprocity of advantage," or that government could not
go on if required to pay for every such restriction. 505 U.S.,
at 1017-1018. But as we explain, infra, at 35-38, these assumptions
hold true in the context of a moratorium.
20. The case involved "a bill in equity brought by the
defendants in error to prevent the Pennsylvania Coal Company
from mining under their property in such way as to remove
the supports and cause a subsidence of the surface and of
their house." Mahon, 260 U.S., at 412. Mahon sought to
prevent Pennsylvania Coal from mining under his property by
relying on a state statute, which prohibited any mining that
could undermine the foundation of a home. The company challenged
the statute as a taking of its interest in the coal without
21. In Lucas, we explained: "Prior to Justice Holmes's
exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922), it was generally thought that the Takings Clause reached
only a 'direct appropriation' of property, Legal Tender Cases,
12 Wall. 457, 551, (1871), or the functional equivalent of
a 'practical ouster of [the owner's] possession,' Transportation
Co. v. Chicago, 99 U.S. 635, 642 (1879) .
recognized in Mahon, however, that if the protection against
physical appropriations of private property was to be meaningfully
enforced, the government's power to redefine the range of
interests included in the ownership of property was necessarily
constrained by constitutional limits. 260 U.S., at 414-415.
If, instead, the uses of private property were subject to
unbridled, uncompensated qualification under the police power,
'the natural tendency of human nature [would be] to extend
the qualification more and more until at last private property
disappear[ed].' Id., at 415. These considerations gave birth
in that case to the oft-cited maxim that, 'while property
may be regulated to a certain extent, if regulation goes too
far it will be recognized as a taking.' Ibid." 505 U.S.,
at 1014 (citation omitted).
22. Justice Brandeis argued: "Every restriction upon
the use of property imposed in the exercise of the police
power deprives the owner of some right theretofore enjoyed,
and is, in that sense, an abridgment by the State of rights
in property without making compensation. But a restriction
imposed to protect the public health, safety or morals from
dangers threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious use. The property
so restricted remains in the possession of its owner. The
State does not appropriate it or make any use of it. The State
merely prevents the owner from making a use which interferes
with paramount rights of the public." Mahon, 260 U.S.,
at 417 (Brandeis, J., dissenting).
23. In her concurring opinion in Palazzolo, 533 U.S., at 633,
Justice O'Connor reaffirmed this approach: "Our polestar
instead remains the principles set forth in Penn Central itself
and our other cases that govern partial regulatory takings.
Under these cases, interference with investment-backed expectations
is one of a number of factors that a court must examine."
Ibid. "Penn Central does not supply mathematically precise
variables, but instead provides important guideposts that
lead to the ultimate determination whether just compensation
is required." Id., at 634. "The temptation to adopt
what amount to per se rules in either direction must be resisted.
The Takings Clause requires careful examination and weighing
of all the relevant circumstances in this context." Id.,
24. Justice Kennedy concurred in the judgment on the basis
of the regulation's impact on "reasonable, investment-backed
expectations." 505 U.S., at 1034.
25. It is worth noting that Lucas underscores the difference
between physical and regulatory takings. See supra, at 17-19.
For under our physical takings cases it would be irrelevant
whether a property owner maintained 5% of the value of her
property so long as there was a physical appropriation of
any of the parcel.
26. The Chief Justice's dissent makes the same mistake by
carving out a 6-year interest in the property, rather than
considering the parcel as a whole, and treating the regulations
covering that segment as analogous to a total taking under
Lucas, post, at 9.
27. Armstrong, like Lucas, was a case that involved the "total
destruction by the Government of all value" in a specific
property interest. 364 U.S., at 48-49. It is nevertheless
perfectly clear that Justice Black's oft-quoted comment about
the underlying purpose of the guarantee that private property
shall not be taken for a public use without just compensation
applies to partial takings as well as total takings.
28. Brief for the Institute for Justice as Amicus Curiae 30.
Although amicus describes the 1-year cut off proposal as the
"better approach by far," ibid., its primary argument
is that Penn Central should be overruled, id., at 20 ("All
partial takings by way of land use restriction should be subject
to the same prima facie rules for compensation as a physical
occupation for a limited period of time").
29. Brief for Petitioners 44. See also Pet. for Cert. i.
30. In addition, we recognize the anomaly that would be created
if we were to apply Penn Central when a landowner is permanently
deprived of 95% of the use of her property, Lucas, 505 U.S.,
at 1019, n. 8, and yet find a per se taking anytime the same
property owner is deprived of all use for only five days.
Such a scheme would present an odd inversion of Justice Holmes'
adage: "A limit in time, to tide over a passing trouble,
well may justify a law that could not be upheld as a permanent
change." Block v. Hirsh, 256 U.S. 135, 157 (1921).
31. Petitioners fail to offer a persuasive explanation for
why moratoria should be treated differently from ordinary
permit delays. They contend that a permit applicant need only
comply with certain specific requirements in order to receive
one and can expect to develop at the end of the process, whereas
there is nothing the landowner subject to a moratorium can
do but wait, with no guarantee that a permit will be granted
at the end of the process. Brief for Petitioners 28. Setting
aside the obvious problem with basing the distinction on a
course of events we can only know after the fact-in the context
of a facial challenge-petitioners' argument breaks down under
closer examination because there is no guarantee that a permit
will be granted, or that a decision will be made within a
year. See, e.g., Dufau v. United States, 22 Cl. Ct. 156 (1990)
(holding that 16-month delay in granting a permit did not
constitute a temporary taking). Moreover, under petitioners'
modified categorical rule, there would be no per se taking
if TRPA simply delayed action on all permits pending a regional
plan. Fairness and justice do not require that TRPA be penalized
for achieving the same result, but with full disclosure.
32. See, e.g., Santa Fe Village Venture v. Albuquerque, 914
F. Supp. 478, 483 (N. M. 1995) (30-month moratorium on development
of lands within the Petroglyph National Monument was not a
taking); Williams v. Central, 907 P.2d 701, 703-706 (Colo.
App. 1995) (10-month moratorium on development in gaming district
while studying city's ability to absorb growth was not a compensable
taking); Woodbury Place Partners v. Woodbury, 492 N. W. 2d
258 (Minn. App. 1993) (moratorium pending review of plan for
land adjacent to interstate highway was not a taking even
though it deprived property owner of all economically viable
use of its property for two years); Zilber v. Moranga, 692
F. Supp. 1195 (ND Cal. 1988) (18-month development moratorium
during completion of a comprehensive scheme for open space
did not require compensation). See also Wayman, Leaders Consider
Options for Town Growth, Charlotte Observer, Feb. 3, 2002,
p. 15M (describing 10-month building moratorium imposed "to
give town leaders time to plan for development"); Wallman,
City May Put Reins on Beach Projects, Sun-Sentinel, May 16,
2000, p. 1B (2-year building moratorium on beachfront property
in Fort Lauderdale pending new height, width, and dispersal
regulations); Foderaro, In Suburbs, They're Cracking Down
on the Joneses, N. Y. Times, Mar. 19, 2001, p. A1 (describing
moratorium imposed in Eastchester, New York during a review
of the town's zoning code to address the problem of oversized
homes); Dawson, Commissioners recommend Aboite construction
ban be lifted, Fort Wayne News Sentinel, May 4, 2001, p. 1A
(3-year moratorium to allow improvements in the water and
sewage treatment systems).
33. See J. Juergensmeyer & T. Roberts, Land Use Planning
and Control Law §§5.28(G) and 9.6 (1998); Garvin
& Leitner, Drafting Interim Development Ordinances: Creating
Time to Plan, 48 Land Use Law & Zoning Digest 3 (June
1996) ("With the planning so protected, there is no need
for hasty adoption of permanent controls in order to avoid
the establishment of nonconforming uses, or to respond in
an ad hoc fashion to specific problems. Instead, the planning
and implementation process may be permitted to run its full
and natural course with widespread citizen input and involvement,
public debate, and full consideration of all issues and points
of view"); Freilich, Interim Development Controls: Essential
Tools for Implementing Flexible Planning and Zoning, 49 J.
Urb. L. 65 (1971).
34. The Chief Justice offers another alternative, suggesting
that delays of six years or more should be treated as per
se takings. However his dissent offers no explanation for
why 6 years should be the cut-off point rather than 10 days,
10 months, or 10 years. It is worth emphasizing that we do
not reject a categorical rule in this case because a 32-month
moratorium is just not that harsh. Instead, we reject a categorical
rule because we conclude that the Penn Central framework adequately
directs the inquiry to the proper considerations-only one
of which is the length of the delay.
35. Petitioner Preservation Council "through its authorized
representatives, actively participated in the entire TRPA
regional planning process leading to the adoption of the 1984
Regional Plan at issue in this action, and attended and expressed
its views and concerns, orally and in writing, at each public
hearing held by the Defendant TRPA in connection with the
consideration of the 1984 Regional Plan at issue herein, as
well as in connection with the adoption of Ordinance 81-5
and the Revised 1987 Regional Plan addressed herein."
36. We note that the temporary restriction that was ultimately
upheld in the First English case lasted for more than six
years before it was replaced by a permanent regulation. First
English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 210 Cal. App. 3d, 1353, 258 Cal. Rptr. 893
37. Several States already have statutes authorizing interim
zoning ordinances with specific time limits. See Cal. Govt.
Code Ann. §65858 (West Supp. 2002) (authorizing interim
ordinance of up to two years); Colo. Rev. Stat. §30-28-121
(2001) (six months); Ky. Rev. Stat. Ann. §100.201 (2001)
(one year); Mich. Comp. Laws Ann. §125.215 (2001) (three
years); Minn. Stat. §394.34 (2000) (two years); N. H.
Rev. Stat. §674:23 (2001) (one year); Ore. Rev. Stat.
Ann. §197.520 (1997) (10 months); S. D. Codified Laws
§11-2-10 (2001) (two years); Utah Code Ann. §17-27-404
(1995) (18 months); Wash. Rev. Code §35.63.200 (2001)
Wis. Stat. §62.23(7)(d) (2001) (two years). Other States,
although without specific statutory authority, have recognized
that reasonable interim zoning ordinances may be enacted.
See, e.g., S. E. W. Freil v. Triangle Oil Co., 76 Md. App.
96, 543 A. 2d 863 (1988); New Jersey Shore Builders Assn.
v. Dover Twp. Comm., 191 N. J. Super. 627, 468 A. 2d 742 (1983);
SCA Chemical Waste Servs., Inc. v. Konigsberg, 636 S. W. 2d
430 (Tenn. 1982); Sturgess v. Chilmark, 380 Mass. 246, 402
N. E. 2d 1346 (1980); Lebanon v. Woods, 153 Conn. 182, 215
A. 2d 112 (1965).
Rehnquist, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
TAHOE-SIERRA PRESERVATION COUNCIL, INC.,
et al., PETITIONERS
TAHOE REGIONAL PLANNING AGENCY et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2002]
Chief Justice Rehnquist, with whom Justice
Scalia and Justice Thomas join, dissenting.
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.
"A court cannot determine whether a regulation
has gone 'too far' unless it knows how far the regulation
goes." MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340, 348 (1986) (citing Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 415 (1922)).1 In failing to undertake
this inquiry, the Court ignores much of the impact of respondent's
conduct on petitioners. Instead, it relies on the flawed
determination of the Court of Appeals that the relevant
time period lasted only from August 1981 until April 1984.
Ante, at 7, 9. During that period, Ordinance 81-5 and Regulation
83-21 prohibited development pending the adoption of a new
regional land-use plan. The adoption of the 1984 Regional
Plan (hereinafter Plan or 1984 Plan) did not, however, change
anything from the petitioners' standpoint. After the adoption
of the 1984 Plan, petitioners still could make no use of
The Court of Appeals disregarded this post-April 1984 deprivation
on the ground that respondent did not "cause"
it. In a §1983 action, "the plaintiff must demonstrate
that the defendant's conduct was the actionable cause of
the claimed injury." 216 F.3d 764, 783 (CA9 2000).
Applying this principle, the Court of Appeals held that
the 1984 Regional Plan did not amount to a taking because
the Plan actually allowed permits to issue for the construction
of single-family residences. Those permits were never issued
because the District Court immediately issued a temporary
restraining order, and later a permanent injunction that
lasted until 1987, prohibiting the approval of any building
projects under the 1984 Plan. Thus, the Court of Appeals
concluded that the "1984 Plan itself could not have
constituted a taking," because it was the injunction,
not the Plan, that prohibited development during this period.
216 F.3d, at 784. The Court of Appeals is correct that the
1984 Plan did not cause petitioners' injury. But that is
the right answer to the wrong question. The causation question
is not limited to whether the 1984 Plan caused petitioners'
injury; the question is whether respondent caused petitioners'
We have never addressed the §1983 causation requirement
in the context of a regulatory takings claim, though language
in Penn Central Transp. Co. v. New York City, 438 U.S. 104
(1978), suggests that ordinary principles of proximate cause
govern the causation inquiry for takings claims. Id., at
124. The causation standard does not require much elaboration
in this case, because respondent was undoubtedly the "moving
force" behind petitioners' inability to build on their
land from August 1984 through 1987. Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 694 (1978) (§1983
causation established when government action is the "moving
force" behind the alleged constitutional violation).
The injunction in this case issued because the 1984 Plan
did not comply with the 1980 Tahoe Regional Planning Compact
(Compact) and regulations issued pursuant to the Compact.
And, of course, respondent is responsible for the Compact
and its regulations.
On August 26, 1982, respondent adopted Resolution 82-11.
That resolution established "environmental thresholds
for water quality, soil conservation, air quality, vegetation
preservation, wildlife, fisheries, noise, recreation, and
scenic resources." California v. Tahoe Regional Planning
Agency, 766 F.2d 1308, 1311 (CA9 1985). The District Court
enjoined the 1984 Plan in part because the Plan would have
allowed 42,000 metric tons of soil per year to erode from
some of the single-family residences, in excess of the Resolution
82-11 threshold for soil conservation. Id., at 1315; see
also id., at 1312. Another reason the District Court enjoined
the 1984 Plan was that it did not comply with article V(g)
of the Compact, which requires a finding "with respect
to each project, that the project will not cause the established
[environmental] thresholds to be exceeded." Id., at
1312. Thus, the District Court enjoined the 1984 Plan because
the Plan did not comply with the environmental requirements
of respondent's regulations and of the Compact itself.
Respondent is surely responsible for its own regulations,
and it is also responsible for the Compact as it is the
governmental agency charged with administering the Compact.
Compact, Art. I(c), 94 Stat 3234. It follows that respondent
was the "moving force" behind petitioners' inability
to develop its land from April 1984 through the enactment
of the 1987 plan. Without the environmental thresholds established
by the Compact and Resolution 82-11, the 1984 Plan would
have gone into effect and petitioners would have been able
to build single-family residences. And it was certainly
foreseeable that development projects exceeding the environmental
thresholds would be prohibited; indeed, that was the very
purpose of enacting the thresholds.
Because respondent caused petitioners' inability to use
their land from 1981 through 1987, that is the appropriate
period of time from which to consider their takings claim.
I now turn to determining whether a ban on all economic development
lasting almost six years is a taking. Lucas reaffirmed our
"frequently expressed" view that "when the
owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered
a taking." 505 U.S., at 1019. See also Agins v. City
of Tiburon, 447 U.S. 255, 258-259 (1980). The District Court
in this case held that the ordinances and resolutions in effect
between August 24, 1981, and April 25, 1984, "did in
fact deny the plaintiffs all economically viable use of their
land." 34 F. Supp. 2d 1226, 1245 (Nev. 1999). The Court
of Appeals did not overturn this finding. And the 1984 injunction,
issued because the environmental thresholds issued by respondent
did not permit the development of single-family residences,
forced petitioners to leave their land economically idle for
at least another three years. The Court does not dispute that
petitioners were forced to leave their land economically idle
during this period. See ante, at 7. But the Court refuses
to apply Lucas on the ground that the deprivation was "temporary."
Neither the Takings Clause nor our case law supports such
a distinction. For one thing, a distinction between "temporary"
and "permanent" prohibitions is tenuous. The "temporary"
prohibition in this case that the Court finds is not a taking
lasted almost six years.2 The "permanent" prohibition
that the Court held to be a taking in Lucas lasted less than
two years. See 505 U.S., at 1011-1012. The "permanent"
prohibition in Lucas lasted less than two years because the
law, as it often does, changed. The South Carolina Legislature
in 1990 decided to amend the 1988 Beachfront Management Act
to allow the issuance of " 'special permits' for the
construction or reconstruction of habitable structures seaward
of the baseline." Id., at 1011-1012. Land-use regulations
are not irrevocable. And the government can even abandon condemned
land. See United States v. Dow, 357 U.S. 17, 26 (1958). Under
the Court's decision today, the takings question turns entirely
on the initial label given a regulation, a label that is often
without much meaning. There is every incentive for government
to simply label any prohibition on development "temporary,"
or to fix a set number of years. As in this case, this initial
designation does not preclude the government from repeatedly
extending the "temporary" prohibition into a long-term
ban on all development. The Court now holds that such a designation
by the government is conclusive even though in fact the moratorium
greatly exceeds the time initially specified. Apparently,
the Court would not view even a 10-year moratorium as a taking
under Lucas because the moratorium is not "permanent."
Our opinion in First English Evangelical Lutheran Church
of Glendale v. County of Los Angeles, 482 U.S. 304 (1987),
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 requires compensation." Id.,
at 318. Because of First English's rule that "temporary
deprivations of use are compensable under the Takings Clause,"
the Court in Lucas found nothing problematic about the later
developments that potentially made the ban on development
temporary. 505 U.S., at 1011-1012 (citing First English, supra);
see also 505 U.S., at 1033 (Kennedy, J., concurring) ("It
is well established that temporary takings are as protected
by the Constitution as are permanent ones." (citing First
English, supra, at 318)).
More fundamentally, even if a practical distinction between
temporary and permanent deprivations were plausible, to treat
the two differently in terms of takings law would be at odds
with the justification for the Lucas rule. The Lucas rule
is derived from the fact that a "total deprivation of
use is, from the landowner's point of view, the equivalent
of a physical appropriation." 505 U.S., at 1017. The
regulation in Lucas was the "practical equivalence"
of a long-term physical appropriation, i.e., a condemnation,
so the Fifth Amendment required compensation. The "practical
equivalence," from the landowner's point of view, of
a "temporary" ban on all economic use is a forced
leasehold. For example, assume the following situation: Respondent
is contemplating the creation of a National Park around Lake
Tahoe to preserve its scenic beauty. Respondent decides to
take a 6-year leasehold over petitioners' property, during
which any human activity on the land would be prohibited,
in order to prevent any further destruction to the area while
it was deciding whether to request that the area be designated
a National Park.
Surely that leasehold would require compensation. In a series
of World War II-era cases in which the Government had condemned
leasehold interests in order to support the war effort, the
Government conceded that it was required to pay compensation
for the leasehold interest.3 See United States v. Petty Motor
Co., 327 U.S. 372 (1946); United States v. General Motors
Corp., 323 U.S. 373, 376 (1945). From petitioners' standpoint,
what happened in this case is no different than if the government
had taken a 6-year lease of their property. The Court ignores
this "practical equivalence" between respondent's
deprivation and the deprivation resulting from a leasehold.
In so doing, the Court allows the government to "do by
regulation what it cannot do through eminent domain-i.e.,
take private property without paying for it." 228 F.3d
998, 999 (CA9 2000) (Kozinski, J., dissenting from denial
of rehearing en banc).
Instead of acknowledging the "practical equivalence"
of this case and a condemned leasehold, the Court analogizes
to other areas of takings law in which we have distinguished
between regulations and physical appropriations, see ante,
at 17-19. But whatever basis there is for such distinctions
in those contexts does not apply when a regulation deprives
a landowner of all economically beneficial use of his land.
In addition to the "practical equivalence" from
the landowner's perspective of such a regulation and a physical
appropriation, we have held that a regulation denying all
productive use of land does not implicate the traditional
justification for differentiating between regulations and
physical appropriations. In "the extraordinary circumstance
when no productive or economically beneficial use of land
is permitted," it is less likely that "the legislature
is simply 'adjusting the benefits and burdens of economic
life' in a manner that secures an 'average reciprocity of
advantage' to everyone concerned," Lucas, supra, at 1017-1018
(quoting Penn Central Transp. Co. v. New York City, 438 U.S.
104, 124 (1978), and Pennsylvania Coal Co. v. Mahon, 260 U.S.,
at 415), and more likely that the property "is being
pressed into some form of public service under the guise of
mitigating serious public harm," Lucas supra, at 1018.
The Court also reads Lucas as being fundamentally concerned
with value, ante, at 25-27, rather than with the denial of
"all economically beneficial or productive use of land,"
505 U.S., at 1015. But Lucas repeatedly discusses its holding
as applying where "no productive or economically beneficial
use of land is permitted." Id., at 1017; see also ibid.
("[T]otal deprivation of beneficial use is, from the
landowner's point of view, the equivalent of a physical appropriation");
id., at 1016 ("[T]he Fifth Amendment is violated when
denies an owner economically viable
use of his land"); id., at 1018 ("[T]he functional
basis for permitting the government, by regulation, to affect
property values without compensation . . . does not apply
to the relatively rare situations where the government has
deprived a landowner of all economically beneficial uses");
ibid. ("[T]he fact that regulations that leave the owner
of land without economically beneficial or productive options
for its use
carry with them a heightened risk that
private property is being pressed into some form of public
service"); id., at 1019 ("[W]hen the owner of real
property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to
leave his property economically idle, he has suffered a taking").
Moreover, the Court's position that value is the sine qua
non of the Lucas rule proves too much. Surely, the land at
issue in Lucas retained some market value based on the contingency,
which soon came to fruition (see supra, at 5), that the development
ban would be amended.
Lucas is implicated when the government deprives a landowner
of "all economically beneficial or productive use of
land." Id., at 1015. The District Court found, and the
Court agrees, that the moratorium "temporarily"
deprived petitioners of " 'all economically viable use
of their land.' " Ante, at 11. 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.
The Court worries that applying Lucas here compels finding
that an array of traditional, short-term, land-use planning
devices are takings. Ante, at 31, 33-34. But since the beginning
of our regulatory takings jurisprudence, we have recognized
that property rights "are enjoyed under an implied
limitation." Mahon, supra, at 413. Thus, in Lucas,
after holding that the regulation prohibiting all economically
beneficial use of the coastal land came within our categorical
takings rule, we nonetheless inquired into whether such
a result "inhere[d] in the title itself, in the restrictions
that background principles of the State's law of property
and nuisance already place upon land ownership." 505
U.S., at 1029. Because the regulation at issue in Lucas
purported to be permanent, or at least long term, we concluded
that the only implied limitation of state property law that
could achieve a similar long-term deprivation of all economic
use would be something "achieved in the courts-by adjacent
landowners (or other uniquely affected persons) under the
State's law of private nuisance, or by the State under its
complementary power to abate nuisances that affect the public
generally, or otherwise." Ibid.
When a regulation merely delays a final land use decision,
we have recognized that there are other background principles
of state property law that prevent the delay from being
deemed a taking. We thus noted in First English that our
discussion of temporary takings did not apply "in the
case of normal delays in obtaining building permits, changes
in zoning ordinances, variances, and the like." 482
U.S., at 321. We reiterated this last Term: "The right
to improve property, of course, is subject to the reasonable
exercise of state authority, including the enforcement of
valid zoning and land-use restrictions." Palazzolo
v. Rhode Island, 533 U.S. 606, 627, (2001). Zoning regulations
existed as far back as colonial Boston, see Treanor, The
Original Understanding of the Takings Clause and the Political
Process, 95 Colum. L. Rev. 782, 789 (1995), and New York
City enacted the first comprehensive zoning ordinance in
1916, see 1 Anderson's American Law of Zoning §3.07,
p. 92 (K. Young rev. 4th ed. 1995). Thus, the short-term
delays attendant to zoning and permit regimes are a longstanding
feature of state property law and part of a landowner's
reasonable investment-backed expectations. See Lucas, supra,
at 1034 (Kennedy, J., concurring in judgment).
But a moratorium prohibiting all economic use for a period
of six years is not one of the longstanding, implied limitations
of state property law.4 Moratoria are "interim controls
on the use of land that seek to maintain the status quo
with respect to land development in an area by either 'freezing'
existing land uses or by allowing the issuance of building
permits for only certain land uses that would not be inconsistent
with a contemplated zoning plan or zoning change."
1 E. Ziegler, Rathkopf's The Law of Zoning and Planning
§13:3, p. 13-6 (4th ed. 2001). Typical moratoria thus
prohibit only certain categories of development, such as
fast-food restaurants, see Schafer v. New Orleans, 743 F.2d
1086 (CA5 1984), or adult businesses, see Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986), or all commercial development,
see Arnold Bernhard & Co. v. Planning & Zoning Comm'n,
194 Conn. 152, 479 A. 2d 801 (1984). Such moratoria do not
implicate Lucas because they do not deprive landowners of
all economically beneficial use of their land. As for moratoria
that prohibit all development, these do not have the lineage
of permit and zoning requirements and thus it is less certain
that property is acquired under the "implied limitation"
of a moratorium prohibiting all development. Moreover, unlike
a permit system in which it is expected that a project will
be approved so long as certain conditions are satisfied,
a moratorium that prohibits all uses is by definition contemplating
a new land-use plan that would prohibit all uses.
But this case does not require us to decide as a categorical
matter whether moratoria prohibiting all economic use are
an implied limitation of state property law, because the
duration of this "moratorium" far exceeds that
of ordinary moratoria. As the Court recognizes, ante, at
38, n. 37, state statutes authorizing the issuance of moratoria
often limit the moratoria's duration. California, where
much of the land at issue in this case is located, provides
that a moratorium "shall be of no further force and
effect 45 days from its date of adoption," and caps
extension of the moratorium so that the total duration cannot
exceed two years. Cal. Govt. Code Ann. §65858(a) (West
Supp. 2002); see also Minn. Stat. §462.355, subd. 4
(2000) (limiting moratoria to 18 months, with one permissible
extension, for a total of two years). Another State limits
moratoria to 120 days, with the possibility of a single
6-month extension. Ore. Rev. Stat. Ann. §197.520(4)
(1997). Others limit moratoria to six months without any
possibility of an extension. See Colo. Rev. Stat. §30-28-121
(2001); N. J. Stat. Ann. §40:55D-90(b) (1991).5 Indeed,
it has long been understood that moratoria on development
exceeding these short time periods are not a legitimate
planning device. See, e.g., Holdsworth v. Hague, 9 N. J.
Misc. 715, 155 A. 892 (1931).
Resolution 83-21 reflected this understanding of the limited
duration of moratoria in initially limiting the moratorium
in this case to 90 days. But what resulted-a "moratorium"
lasting nearly six years-bears no resemblance to the short-term
nature of traditional moratoria as understood from these
background examples of state property law.
Because the prohibition on development of nearly six years
in this case cannot be said to resemble any "implied
limitation" of state property law, it is a taking that
* * *
Lake Tahoe is a national treasure and I do not doubt that
respondent's efforts at preventing further degradation of
the lake were made in good faith in furtherance of the public
interest. But, as is the case with most governmental action
that furthers the public interest, the Constitution requires
that the costs and burdens be borne by the public at large,
not by a few targeted citizens. Justice Holmes' admonition
of 80 years ago again rings true: "We are in danger
of forgetting that a strong public desire to improve the
public condition is not enough to warrant achieving the
desire by a shorter cut than the constitutional way of paying
for the change." Mahon, 260 U.S., at 416.
1. We are not bound by the Court of Appeals' determination
that petitioners' claim under 42 U.S. C §1983 (1994
ed., Supp. V) permitted only challenges to Ordinance 81-5
and Regulation 83-21. Petitioners sought certiorari on the
Court of Appeals' ruling that respondent Tahoe Regional
Planning Agency (hereinafter respondent) did not cause petitioners'
injury from 1984 to 1987. Pet. for Cert. 27-30. We did not
grant certiorari on any of the petition's specific questions
presented, but formulated the following question: "Whether
the Court of Appeals properly determined that a temporary
moratorium on land development does not constitute a taking
of property requiring compensation under the Takings Clause
of the United States Constitution?" 533 U.S. 948-949
(2001). This Court's Rule 14(1)(a) provides that a "question
presented is deemed to comprise every subsidiary question
fairly included therein." The question of how long
the moratorium on land development lasted is necessarily
subsumed within the question whether the moratorium constituted
a taking. Petitioners did not assume otherwise. Their brief
on the merits argues that respondent "effectively blocked
all construction for the past two decades." Brief for
2. Even under the Court's mistaken view that the ban on
development lasted only 32 months, the ban in this case
exceeded the ban in Lucas.
3. There was no dispute that just compensation was required
in those cases. The disagreement involved how to calculate
that compensation. In United States v. General Motors Corp.,
323 U.S. 373 (1945), for example, the issues before the
Court were how to value the leasehold interest (i.e., whether
the "long-term rental value [should be] the sole measure
of the value of such short-term occupancy," id., at
380), whether the Government had to pay for the respondent's
removal of personal property from the condemned warehouse,
and whether the Government had to pay for the reduction
in value of the respondent's equipment and fixtures left
in the warehouse. Id., at 380-381.
4. Six years is not a "cut-off point," ante, at
35, n. 34; it is the length involved in this case. And the
"explanation" for the conclusion that there is
a taking in this case is the fact that a 6-year moratorium
far exceeds any moratorium authorized under background principles
of state property law. See infra, at 12-13. This case does
not require us to undertake a more exacting study of state
property law and discern exactly how long a moratorium must
last before it no longer can be considered an implied limitation
of property ownership (assuming, that is, that a moratorium
on all development is a background principle of state property
law, see infra, at 12).
5. These are just some examples of the state laws limiting
the duration of moratoria. There are others. See, e.g.,
Utah Code Ann. §§17-27-404(3)(b)(i)-(ii) (1995)
(temporary prohibitions on development "may not exceed
six months in duration," with the possibility of extensions
for no more than "two additional six-month periods").
See also ante, at 36, n. 31.
Thomas, J., dissenting
SUPREME COURT OF THE UNITED STATES
TAHOE-SIERRA PRESERVATION COUNCIL, INC.,
et al., PETITIONERS
TAHOE REGIONAL PLANNING AGENCY et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2002]
Justice Thomas, with whom Justice Scalia joins, dissenting.
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 27. While this
questionable rule* has been applied to various alleged regulatory
takings, it was, in my view, rejected in the context of temporal
deprivations of property by First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304,
318 (1987), which held that temporary and permanent takings
"are not different in kind" when a landowner is
deprived of all beneficial use of his land. I had thought
that First English put to rest the notion that the "relevant
denominator" is land's infinite life. Consequently, a
regulation effecting a total deprivation of the use of a so-called
"temporal slice" of property is compensable under
the Takings Clause unless background principles of state property
law prevent it from being deemed a taking; "total deprivation
of use is, from the landowner's point of view, the equivalent
of a physical appropriation." Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1017 (1992).
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. This
was true at the inception of the moratorium, and it remains
true today. These individuals and families were deprived of
the opportunity to build single-family homes as permanent,
retirement, or vacation residences on land upon which such
construction was authorized when purchased. The Court assures
them that "a temporary prohibition on economic use"
cannot be a taking because "logically . . . the property
will recover value as soon as the prohibition is lifted."
Ante, at 27-28. But the "logical" assurance that
a "temporary restriction . . . merely causes a diminution
in value," ante, at 27, is cold comfort to the property
owners in this case or any other. After all, "[i]n the
long run we are all dead." John Maynard Keynes, Monetary
Reform 88 (1924).
I would hold that regulations 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. To my mind, such potential future value bears on
the amount of compensation due and has nothing to do with
the question whether there was a taking in the first place.
It is regrettable that the Court has charted a markedly different
*. * The majority's decision to embrace the "parcel as
a whole" doctrine as settled is puzzling. See, e.g.,
Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001) (noting
that the Court has "at times expressed discomfort with
the logic of [the parcel as a whole] rule"); Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1016, n. 7
(1992) (recognizing that "uncertainty regarding the composition
of the denominator in [the Court's] 'deprivation' fraction
has produced inconsistent pronouncements by the Court,"
and that the relevant calculus is a "difficult question").
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