535 U.S. 302
In the early 1980s, the Tahoe Regional Planning Agency imposed two moratoria on development in the Lake Tahoe Basin.1 The first, Ordinance 81-5, took effect on August 24, 1981, and lasted until August 26, 1983. The second, Resolution 83-21, ran from August 27, 1983, to April 25, 1984.2 Together these measures prohibited virtually all development on sensitive lands for a total of 32 months while TRPA developed a comprehensive land-use plan.3
Lake Tahoe's exceptional water clarity had begun to deteriorate due to increased land development starting in the late 1950s and early 1960s.4 Runoff from impervious surfaces on steeper slopes and stream environment zones carried nutrients that promoted algae growth.5 In response, California and Nevada, along with the federal government, amended the Tahoe Regional Planning Compact in 1980 to require TRPA to establish environmental threshold carrying capacities and adopt a regional plan.6
The 1980 Compact amendment directed TRPA to adopt thresholds within 18 months and a plan within a year thereafter.7 It also included a finding that temporary halts on development were necessary to preserve the region's capacity for future development consistent with the ultimate plan.8 TRPA enacted Ordinance 81-5 in June 1981 after concluding it could not meet the original deadlines, and later adopted Resolution 83-21 when no plan was in place by August 1983.9
Petitioners, including the Tahoe-Sierra Preservation Council representing about 2,000 owners and a class of approximately 400 individual owners of vacant lots purchased before 1980 primarily for building single-family homes, filed parallel actions in federal courts in Nevada and California shortly after the 1984 plan was adopted.10 The suits were consolidated in the District of Nevada.11 The District Court found that the moratoria constituted categorical takings under Lucas because they temporarily deprived owners of all economically viable use.12 The Ninth Circuit reversed that determination.13
The Ninth Circuit held that the temporary nature of the regulations meant no categorical taking had occurred and that Penn Central analysis applied, though petitioners had not challenged the District Court's Penn Central findings.14 The Supreme Court granted certiorari to address whether the moratoria effected per se takings.15
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?16
Regulatory takings claims require compensation under a categorical per se rule only in the extraordinary case where a regulation permanently deprives an owner of all economically beneficial uses of the entire parcel under Lucas.17 Temporary restrictions instead call for the ad hoc factual inquiry of Penn Central that focuses on the parcel as a whole, including both its geographic and temporal dimensions.18
No. The Supreme Court has consistently rejected attempts to sever temporal segments from the fee simple estate for takings analysis and has held that Lucas applies only to permanent deprivations.19
In the early 1980s the Tahoe Regional Planning Agency imposed two moratoria on development in the Lake Tahoe Basin. The first, Ordinance 81-5, took effect on August 24, 1981, and lasted until August 26, 1983. The second, Resolution 83-21, ran from August 27, 1983, to April 25, 1984. Together these measures prohibited virtually all development on sensitive lands for a total of 32 months while TRPA developed a comprehensive land-use plan.
Lake Tahoe's exceptional water clarity had begun to deteriorate due to increased land development starting in the late 1950s and early 1960s. Runoff from impervious surfaces on steeper slopes and stream environment zones carried nutrients that promoted algae growth. In response, California and Nevada, along with the federal government, amended the Tahoe Regional Planning Compact in 1980 to require TRPA to establish environmental threshold carrying capacities and adopt a regional plan.
The 1980 Compact amendment directed TRPA to adopt thresholds within 18 months and a plan within a year thereafter. It also included a finding that temporary halts on development were necessary to preserve the region's capacity for future development consistent with the ultimate plan. TRPA enacted Ordinance 81-5 in June 1981 after concluding it could not meet the original deadlines, and later adopted Resolution 83-21 when no plan was in place by August 1983.
Petitioners, including the Tahoe-Sierra Preservation Council representing about 2,000 owners and a class of approximately 400 individual owners of vacant lots purchased before 1980 primarily for building single-family homes, filed parallel actions in federal courts in Nevada and California shortly after the 1984 plan was adopted. The suits were consolidated in the District of Nevada. The District Court found that the moratoria constituted categorical takings under Lucas because they temporarily deprived owners of all economically viable use. The Ninth Circuit reversed that determination.
The Ninth Circuit held that the temporary nature of the regulations meant no categorical taking had occurred and that Penn Central analysis applied, though petitioners had not challenged the District Court's Penn Central findings. Because the regulations had only a temporary impact on petitioners' fee interests, no categorical taking occurred under Lucas, which applies to the relatively rare case in which a regulation permanently denies all productive use of an entire parcel.20 The Court emphasized that 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.21 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.22 Petitioners' attempt to focus exclusively on the property during the moratoria period is unavailing because it would ignore the admonition to focus on the parcel as a whole.23 The default rule remains that a fact-specific inquiry is required in the regulatory taking context rather than a per se rule for temporary moratoria.24
The moratoria ordered by TRPA are not per se takings of property requiring compensation under the Takings Clause.25
Related opinions on this issue
Chief Justice Rehnquist dissented on the ground that the prohibition on development lasted almost six years when including the period after the 1984 plan due to the injunction.26 He argued that neither the Takings Clause nor case law supports a distinction between temporary and permanent deprivations when the owner is deprived of all economically beneficial use.27 Rehnquist noted that the District Court held the ordinances denied plaintiffs all economically viable use and that the Court of Appeals did not overturn that finding.28
He contended that the practical equivalence from the landowner's perspective of a temporary ban and a condemned leasehold means the government cannot do by regulation what it cannot do through eminent domain.29 Rehnquist further observed that the nearly six-year moratorium bore no resemblance to traditional short-term moratoria and that background principles of property law did not insulate it from takings liability.30
Justice Thomas joined the Chief Justice's dissent and wrote separately to address the majority's conclusion that the temporary moratorium was not a taking because it was not a taking of the parcel as a whole.31 Thomas argued that First English held temporary and permanent takings are not different in kind when a landowner is deprived of all beneficial use.32 He stated that a regulation effecting a total deprivation of the use of a temporal slice of property is compensable unless background principles of state property law prevent it from being deemed a taking.33
Thomas would hold that regulations prohibiting all productive uses are subject to Lucas's per se rule regardless of potential future value when the moratorium lifts, because future potential value bears on the amount of compensation, not on whether there was a taking.34