Amicus Curiae Brief — The Gym 24/7 Fitness, LLC, Petitioner v. Michigan

No. 24-757

IN THE

Supreme Court of the United States

THE GYM 24/7 FITNESS, LLC,

Petitioner,

v.

STATE OF MICHIGAN,

Respondent.

On Petition for a Writ of Certiorari

to the Michigan Court of Appeals

BRIEF FOR AMICI CURIAE

NATIONAL ASSOCIATION OF REALTORS®,

MANUFACTURED HOUSING INSTITUTE,

NATIONAL APARTMENT ASSOCIATION,

NATIONAL MULTIFAMILY HOUSING

COUNCIL, AND MICHIGAN REALTORS®

IN SUPPORT OF PETITIONER

SOPHIA CHUA-RUBENFELD

JONES DAY

1221 Peachtree Street, NE

Suite 400

Atlanta, GA 30361

BRINTON LUCAS

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

blucas@jonesday.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT .............................................................. 5

I.

II.

PENN CENTRAL LEAVES

PROPERTY OWNERS ESSENTIALLY

POWERLESS TO CHALLENGE

EXCESSIVE REGULATION OF

RESIDENTIAL PROPERTY. .......................... 5

A.

Penn Central deters property

owners from bringing meritorious

claims..................................................... 5

B.

Penn Central incentivizes

excessive regulation,

exacerbating the affordable

housing crisis. ....................................... 7

THIS COURT SHOULD CLARIFY

TAHOE-SIERRA TO SHIELD

PROPERTY OWNERS FROM TOTAL

REGULATORY TAKINGS. ........................... 11

A.

Tahoe-Sierra created a narrow

exception to the rule for total

regulatory takings............................... 12

B.

The lower courts have overread

Tahoe-Sierra to the harm of

property owners. ................................. 18

C.

This case offers an excellent

opportunity to clarify TahoeSierra. .................................................. 21

CONCLUSION ......................................................... 24

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Alabama Ass’n of Realtors v. HHS,

594 U.S. 758 (2021) .............................................. 19

Arizona v. Gant,

556 U.S. 332 (2009) .............................................. 21

Bridge Aina Le’a, LLC v. Hawaii Land

Use Comm’n,

141 S. Ct. 731 (2021) .............................................. 5

Bridge Aina Le’a, LLC v. Land Use

Comm’n,

950 F.3d 610 (9th Cir. 2020) .................................. 7

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) .............................................. 21

Colony Cove Properties, LLC v. City of

Carson,

888 F.3d 445 (9th Cir. 2018) .............................. 6, 7

Elmsford Apartment Assocs., LLC v.

Cuomo,

469 F. Supp. 3d 148 (S.D.N.Y. 2020) ..................... 6

First English Evangelical Lutheran

Church of Glendale v. County of Los

Angeles,

482 U.S. 304 (1987) ............................. 13-17, 20-22

Heights Apartments, LLC v. Walz,

30 F.4th 720 (8th Cir. 2022) .................................. 6

iii

In re Certified Questions from U.S. Dist.

Ct.,

958 N.W.2d 1 (Mich. 2020) .................................... 3

Lucas v. South Carolina Coastal

Council,

505 U.S. 1003 (1992) ....................... 4, 11-18, 20-23

Penn Central Transportation Co. v. City

of New York,

438 U.S. 104 (1978) ........................... 3-7, 11, 15, 20

Pumpelly v. Green Bay & Mississippi

Canal Co.,

80 U.S. 166 (1871) ................................................ 21

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................ 20

Sheetz v. Cnty. of El Dorado,

601 U.S. 267 (2024) ........................................ 20, 22

Tahoe-Sierra Preservation Council, Inc.

v. Tahoe Regional Planning Agency,

535 U.S. 302 (2002) ..........3, 4, 11, 12, 14-18, 20-22

STATUTES AND EXECUTIVE ORDERS

Mich. Exec. Order No. 2020-9 ............................... 3, 12

San Francisco Admin. Code § 37.9 ........................... 19

Seattle Mun. Code § 25.205.110 ............................... 19

Tacoma Mun. Code § 1.100.060 .......................... 18, 19

iv

OTHER AUTHORITIES

J. Barbanel, Wealthy, Older Tenants in

Manhattan Get Biggest Boost From

Rent Regulations, WALL ST. J.

(June 12, 2019) ................................................. 9, 10

C. Britschgi, Rent Control for the Rich,

REASON (Jan. 9, 2024) .......................................... 10

1 E. Coke, Institutes (1st am. ed. 1812) .................... 12

Douglas Cnty., FAQs: Planning and

Zoning................................................................... 10

R. Epstein, Physical and Regulatory

Takings: One Distinction Too Many,

64 STAN. L. REV. 99 (2012) ..................................... 7

G. Kanner, Making Laws and Sausages:

A Quarter-Century Retrospective on

Penn Central Transportation Co. v.

City of New York, 13 WM. & MARY

BILL RTS. J. 679 (2005) ................................... 5, 6, 7

J. Keynes, MONETARY REFORM (1924) ...................... 17

J. Ludden, Rent Control Expands as

Tenants Struggle with the RecordHigh Cost of Housing, NPR

(Nov. 28, 2022) ........................................................ 9

Freddie Mac, Identifying the

Opportunities To Expand

Manufactured Housing (2022) ............................. 10

v

C. McKenney, As Affordable Housing

Crumbles, Reconsider School Year

Eviction Bans, FIX HOMELESSNESS

(Oct. 2, 2024) ........................................................ 19

MHI, Get the Facts on Zoning

(June 12, 2023) ..................................................... 10

NAA, Breaking Down One Dollar of

Rent (2023) ........................................................... 19

NAA, Examining the Unintended

Consequences of Rent Control

Policies in Cities Across America

(Mar. 22, 2023) ....................................................... 9

NAA, NAA’s Rent Control Outlook

(Dec. 21, 2024) ........................................................ 9

National Low-Income Housing

Coalition, The Gap: A Shortage of

Available Homes (Mar. 2024) ............................ 8, 9

NMHC, Regulation: 40.6 Percent of the

Cost of Multifamily Development

(2022) ...................................................................... 8

W. Parker, Apartment Construction Is

Slowing, and Investors Are Betting

on Higher Rents, WALL ST. J.

(Sept. 2, 2024) ........................................................ 8

1

INTEREST OF AMICI CURIAE 1

The National Association of REALTORS® (NAR) is

a national trade association, representing over 1.5

million members, including institutes, societies, and

councils involved in all aspects of residential and

commercial real estate. Members are residential and

commercial brokers, salespeople, property managers,

appraisers, counselors, and others engaged in the real

estate industry. Members belong to one or more of the

approximately 1,200 local and 54 state and territory

associations of REALTORS®, and support private

property rights, including the right to own, use, and

transfer real property. REALTORS® adhere to a strict

Code of Ethics, setting them apart from other real

estate professionals for their commitment to ethical

real estate business practices.

The Manufactured Housing Institute (MHI) is the

only national trade organization representing all

segments of the factory-built housing industry. MHI

represents over 1,000 member companies involved in

the production, sale and financing of manufactured

housing, prefabricated home and modular home units.

MHI’s advocacy helps make the dream of

homeownership a reality for millions of Americans.

The National Apartment Association (NAA) serves

as the leading voice and preeminent resource through

advocacy, education, and collaboration on behalf of the

rental housing industry. As a federation of 141 state

1 Counsel of record for all parties received timely notice of

amici’s intent to file this brief as required by Rule 37. No counsel

for any party authored any portion of this brief or made any

monetary contribution intended to fund its preparation or

submission.

2

and local affiliates, NAA encompasses over 96,000

members representing more than 12 million

apartment homes globally. NAA believes that rental

housing is a valuable partner in every community and

emphasizes integrity, accountability, collaboration,

community responsibility, inclusivity, and innovation.

NAA and its network of affiliated apartment

associations seek the fair governmental treatment of

multifamily

housing

organizations,

including

advocating the interests of the rental housing

business community at large in legal cases of national

concern.

Based in Washington, D.C., the National

Multifamily Housing Council (NMHC) is where rental

housing providers and suppliers come together to help

meet America’s housing needs by creating inclusive

and resilient communities where people build their

lives. NMHC advocates for solutions to America’s

housing challenges, conducts rental-related research

and promotes the desirability of rental living. Over

one-third of American households rent, and over 21

million U.S. households live in an apartment home

(buildings with five or more units).

Michigan REALTORS® is Michigan’s largest

nonprofit trade association, comprised of 38 local

boards and membership of more than 34,000 brokers

and salespersons licensed under Michigan law. It is

the recognized public-policy and legal advocate for

private property rights and the real estate industry in

Michigan, as well as the acknowledged leading

resource for professional development, knowledge

exchange, and wide-ranging business services.

3

Amici are interested in this case because Penn

Central Transportation Co. v. City of New York, 438

U.S. 104 (1978), and Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535

U.S. 302 (2002), have a significant impact on the

ability of individuals and organizations to protect

their private property rights, particularly when it

comes to residential property.

SUMMARY OF ARGUMENT

In March 2020, the Governor of Michigan declared

a state of emergency and issued a series of executive

orders in response to the COVID-19 pandemic. Among

other things, the orders required “gymnasiums,

fitness centers, recreation centers, indoor sports

facilities, indoor exercise facilities, exercise studios,

and spas” to close to the public. Mich. Exec. Order No.

2020-9. While other businesses such as bars and

restaurants were soon allowed to reopen, gyms such

as petitioner’s remained shuttered until September

2020. The Michigan Supreme Court later held that

the Governor’s orders exceeded her authority under

Michigan law. In re Certified Questions from U.S. Dist.

Ct., 958 N.W.2d 1, 31 (Mich. 2020).

All told, petitioner’s gym was forced to remain

closed for six months. During that time, petitioner

earned zero income from that property. Seeking

compensation for that loss, petitioner sued Michigan

under the Takings Clause, yet the Michigan Court of

Appeals granted summary disposition for the State.

Applying Penn Central, the court held that there was

no partial taking under that “balancing test.” Pet. App.

32a. And applying Tahoe-Sierra, the court held that

there was “no categorical” taking either, because the

4

value of the gym “likely recovered as soon as the

temporary prohibition was lifted.” Id. The Michigan

Supreme Court denied review over the dissent of two

justices. Id. at 38a-58a.

The short shrift given petitioner’s lawsuit

underscores just how difficult it is for anyone to obtain

relief for regulatory takings. Given its protean nature,

Penn Central discourages property owners from

challenging such takings, thereby fostering the

excessive regulation of residential property

contributing to the country’s affordable housing crisis.

And Tahoe-Sierra, at least as read by the lower courts,

has given government actors a free hand to deprive

citizens of all economic use of their property so long as

they do it temporarily.

This case provides the perfect opportunity for this

Court to correct either or both of those problems. If

Penn Central and Tahoe-Sierra free regulators to

deprive property owners of all economically beneficial

use of their land for half a year without just

compensation (or even legal authorization), it is hard

to imagine what regulatory takings claims could ever

succeed—save perhaps one for a “permanent” total

regulatory taking under Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992), a rare bird

indeed. Clarifying either or both of those precedents

could go a long way to making regulatory takings

claims a meaningful avenue for relief. And without a

change in this area, government actors throughout

the country will continue to impose burdensome

regulations on residential property, to the detriment

of owners and renters alike.

5

ARGUMENT

I.

PENN CENTRAL LEAVES PROPERTY

OWNERS ESSENTIALLY POWERLESS TO

CHALLENGE EXCESSIVE REGULATION

OF RESIDENTIAL PROPERTY.

As petitioner explains (Pet. 10-19), Penn Central’s

ad hoc balancing test has led to widespread confusion

in the lower courts, perhaps best summed up by the

observation that a “know-it-when-you-see-it test is no

good if one court sees it and another does not.” Bridge

Aina Le’a, LLC v. Hawaii Land Use Comm’n, 141

S. Ct. 731, 732 (2021) (Thomas, J., dissenting from

denial of certiorari). On top of these jurisprudential

difficulties, Penn Central has real-world harms on the

housing market—and in particular, on the affordable

housing market. Specifically, the unpredictable

nature of the current Penn Central framework

discourages property owners from bringing

meritorious challenges under the Takings Clause. And

that in turn has only emboldened governments at all

levels to excessively regulate residential property,

thereby hamstringing the country’s housing supply.

A. Penn Central deters property owners

from bringing meritorious claims.

Because Penn Central is so unpredictable, potential

litigants and their lawyers cannot accurately conduct

a risk-reward analysis of a takings claim. Under Penn

Central, “lawyers are unable to ascertain which facts

of the controversy will prove to be the operative, much

less decisive,” to say nothing of “the prospective

likelihood” of success in litigation. G. Kanner, Making

Laws and Sausages: A Quarter-Century Retrospective

on Penn Central Transportation Co. v. City of New

6

York, 13 WM. & MARY BILL RTS. J. 679, 692 (2005). And

that leaves them “handicapped when trying to advise

clients, plan contemplated litigation, and marshal

evidence likely to satisfy judges.” Id. The “absence of

discernible rules” makes litigation expensive and

high-risk, and thus “places ordinary property owners

beyond the ambit of constitutional protection.” Id.

There is virtually no way to predict how a

particular court will apply Penn Central to a given

regulation. In recent years, for instance, landlords

across the country brought takings claims in response

to COVID-19 eviction moratoria. The courts

evaluating the claims came to differing conclusions

under Penn Central. To take just one Penn Central

prong as an example, the Eighth Circuit held that “no

landlord could have reasonably expected regulations”

like the moratoria. Heights Apartments, LLC v. Walz,

30 F.4th 720, 734 (8th Cir. 2022). By contrast, other

courts held that landlords “could not reasonabl[y]

expect to be free of ” regulations like the moratoria.

E.g., Elmsford Apartment Assocs., LLC v. Cuomo, 469

F. Supp. 3d 148, 169 (S.D.N.Y. 2020). Few litigants

will be likely to devote resources to constitutional

claims when the outcome feels like a coin toss.

In some cases, property owners have litigated their

takings claims all the way to a jury verdict, and won—

only to have their victories reversed by judges seeing

Penn Central a different way. In Colony Cove

Properties, LLC v. City of Carson, 888 F.3d 445 (9th

Cir. 2018), for instance, the owner of a mobile home

park challenged a rent control ordinance under the

Takings Clause. After hearing the evidence, a jury

applied Penn Central and awarded the property owner

$3.3 million in damages. On appeal, the Ninth Circuit

7

overturned the jury verdict and ordered the district

court to enter judgment for the city. In that court’s

view, “no reasonable finder of fact” would conclude

that the ordinance was a taking under Penn Central.

Id. at 455; see also Bridge Aina Le’a, LLC v. Land Use

Comm’n, 950 F.3d 610, 637 (9th Cir. 2020)

(overturning jury verdict because “no reasonable jury

could find that Bridge’s evidence satisfied the Penn

Central test”). The daylight between jurists and jurors

when it comes to applying Penn Central is yet another

deterrent to bringing a regulatory takings claim.

B. Penn Central incentivizes excessive

regulation, exacerbating the affordable

housing crisis.

By discouraging the pursuit of regulatory takings

claims, Penn Central’s “weak level of protection

against regulatory takings encourages excessive

government activity.” R. Epstein, Physical and

Regulatory Takings: One Distinction Too Many, 64

STAN. L. REV. ONLINE 99, 105 (2012). And that is

particularly true when it comes to residential

property. The “vagueness and unpredictability” of the

Penn Central test has “encouraged regulators to

pursue policies that have sharply reduced the supply

of housing,” an outcome that “increasingly disfavors

the middle class, to say nothing of those lower on the

economic scale who are still climbing the rungs of the

socioeconomic ladder.” Kanner, supra, at 681.

Multifamily housing options such as apartment

buildings, condos, and townhomes are critical to meet

the housing needs of middle-class and low-income

families. The United States currently has a shortage

of 7.3 million rental homes affordable to the lowest-

8

income renters, with only 34 affordable rental homes

available for every 100 extremely low-income

households. National Low-Income Housing Coalition,

The Gap: A Shortage of Available Homes 6-7 (Mar.

2024) (The Gap).

Unfortunately, regulatory burdens have made

multifamily housing development prohibitively

expensive. Developers face costly regulatory hurdles

every step of the way, from applying to rezone land for

multifamily construction, to paying for studies and

impact fees, to meeting energy-efficiency standards, to

keeping up with ever-changing building codes. Id. at

1. A recent study by NMHC found that on average,

“regulation imposed by all levels of government

accounts for 40.6 percent of multifamily development

costs.” NMHC, Regulation: 40.6 Percent of the Cost of

Multifamily Development 9 (2022).

Given these mounting burdens, developers are

reluctant to build affordable housing. “Lower-cost

rentals—the kind most in need by low- and moderateincome households—remain scarce and are rarely

built without a government subsidy.” W. Parker,

Apartment Construction Is Slowing, and Investors Are

Betting on Higher Rents, WALL ST. J. (Sept. 2, 2024).

Instead, “[m]ost apartment developers today build

high-end units for middle- and upper-income

households, which have little impact on the

affordable-housing shortage.” Id.

To make matters worse, some regulations intended

to increase affordable housing options have actually

had the opposite effect. Consider rent control.

“[D]espite years of research that shows rent control

can actually reduce the overall amount of affordable

9

housing,” governments around the country are

showing a renewed interest in it. J. Ludden, Rent

Control Expands as Tenants Struggle with the RecordHigh Cost of Housing, NPR (Nov. 28, 2022). Yet in a

recent survey of nearly 50 multifamily housing

developers, 87.5% stated that they avoid building

housing in jurisdictions with rent control. The Gap,

supra, at 4. Indeed, cities that have recently enacted

rent control regimes have experienced immediate

declines in housing supply production. For example,

after St. Paul passed a rent control ordinance in 2022,

the number of permits for new dwelling units in the

city fell from 1,404 to 365 within three years. See

NAA, NAA’s Rent Control Outlook (Dec. 21, 2024)

(linking to St. Paul’s data).

What is more, studies show that some of rent

control’s greatest beneficiaries are actually highincome tenants. In one survey of housing providers,

58% knew of higher-income residents occupying rentcontrolled apartments. NAA, Examining the

Unintended Consequences of Rent Control Policies in

Cities Across America 6 (Mar. 22, 2023). There were

even reports that high-income tenants were

subletting their rent-controlled units at market rates

for a profit. Id. Similarly, a 2019 analysis found that

the “biggest beneficiaries of rent regulation in New

York aren’t low-income tenants across New York City,

but more affluent, white residents of Manhattan.” J.

Barbanel, Wealthy, Older Tenants in Manhattan Get

Biggest Boost From Rent Regulations, WALL ST. J.

(June 12, 2019). Another recent report found that one

couple occupying a rent-stabilized apartment in

Lower Manhattan also owned a $2 million home in

East Hampton. Thanks to rent control, the couple, a

10

wine broker and a real estate associate at Sotheby’s,

were paying $931 per month in rent in a neighborhood

where market rates ranged from $3,000 to $7,000 per

month. C. Britschgi, Rent Control for the Rich,

REASON (Jan. 9, 2024). Overall, wealthy renters in

New York receive the biggest discounts from rent

control—39% on average. By contrast, for New

Yorkers in the bottom quartile of income, the discount

is only about 15%. See Barbanel, supra.

Affordable housing is also threatened by

exclusionary regulations born of outright NIMBYism.

Manufactured homes, sometimes called mobile homes

or trailers, are a crucial source of affordable housing.

This option makes the dream of homeownership a

possibility for many families who would otherwise be

priced out of the housing market. Yet many cities have

enacted zoning laws and other restrictions to keep

manufactured homes out of their neighborhoods.

These measures range from total bans, to minimum

lot size requirements, to prohibitions on placing

manufactured homes over 5 years old. MHI, Get the

Facts on Zoning (June 12, 2023).

In fact, a study of 825 jurisdictions across 32 states

revealed that 57% of them required lot sizes of over

half an acre for manufactured homes. Freddie Mac,

Identifying

the

Opportunities

To

Expand

Manufactured Housing 4 (2022). Many jurisdictions

demanded a minimum of two acres. See id. at 3. And

some, like Douglas County, Georgia, just 20 miles west

of downtown Atlanta, required a minimum of ten

acres. Douglas Cnty., FAQs: Planning and Zoning,

https://www.douglascountyga.gov/faq.aspx?TID.

11

*

*

*

By deterring property owners from challenging

burdensome regulations under the Takings Clause,

Penn Central has incentivized governments to layer

regulation after regulation on residential property.

The result is a regulatory landscape that drives up

prices, cuts down the supply of affordable housing,

and harms owners and renters across the board. This

Court should grant review, revisit Penn Central, and

provide clear guidance in this area.

II. THIS COURT SHOULD CLARIFY TAHOESIERRA TO SHIELD PROPERTY OWNERS

FROM TOTAL REGULATORY TAKINGS.

While the problems with Penn Central are well

known, the second question presented is no less

important. Since 2002, lower courts have taken this

Court’s decision in Tahoe-Sierra to hold that a

“temporary prohibition” on all economic use of a

property cannot qualify as a total regulatory taking

protected by the Lucas test. Pet. App. 32a.

That is a serious problem. While Tahoe-Sierra held

that traditional moratoria on land development were

exempt from the rule in Lucas, it did not purport to

establish a global rule governing all total regulatory

takings that were limited in time—a proposition in

significant tension with this Court’s precedents, past

and future. Yet as this case illustrates, governments

and lower courts have taken the decision as a green

light to adopt all sorts of regulations forcing owners to

leave their property economically idle for discrete

chunks of time. This Court should grant review and

clarify the limited scope of Tahoe-Sierra.

12

A. Tahoe-Sierra created a narrow exception

to the rule for total regulatory takings.

1. In Lucas, this Court announced a “categorical

rule that total regulatory takings must be

compensated.” 505 U.S. at 1026. Writing for the Court,

Justice Scalia explained that a total regulatory

taking—i.e., when “regulation denies all economically

beneficial or productive use of land”—should be

analyzed like a physical taking because “total

deprivation of beneficial use is, from the landowner’s

point of view, the equivalent of a physical

appropriation.” Id. at 1015, 1017. Put differently, “for

what is the land but the profits thereof?” Id. (quoting

1 E. Coke, Institutes, ch. 1, § 1 (1st am. ed. 1812))

(brackets and alterations omitted). This Court

therefore held 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.” Id. at 1019.

For six months, petitioner and similar businesses

suffered a total regulatory taking. Governor

Whitmer’s order mandated that gyms remain “closed

to ingress, egress, use, and occupancy by members of

the public.” Mich. Exec. Order No. 2020-9. With

customers forbidden to so much as set foot inside, gym

owners could not earn a cent from their property as

long as the Order remained in place. Simply put, they

were “called upon to sacrifice all economically

beneficial

uses” and

leave

their

property

“economically idle” “in the name of the common good.”

Lucas, 505 U.S. at 1019.

13

Logically, petitioner’s six-month plight falls

squarely under the Lucas framework. After all, Lucas

itself concerned a two-year taking. In 1988, South

Carolina passed the Beachfront Management Act,

which prohibited Lucas from building on his land. The

Act therefore rendered his parcels “valueless,”

prompting Lucas to seek just compensation under the

Takings Clause. Id. at 1007. In 1990, while his case

was working its way through the courts, South

Carolina amended the law such that Lucas could

apply for a “special permit” to build on his property.

The total regulatory taking thus lasted only two years.

Indeed, the South Carolina Coastal Council urged

this Court not to review Lucas’s taking claim because

of that amendment. The Court rejected the invitation,

noting that Lucas was entitled to review “with respect

to the 1988-1990 period.” Id. at 1012. After all, First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987), had held

that “temporary deprivations of use are compensable

under the Takings Clause.” 505 U.S. at 1011-12.

Justice Kennedy wrote separately to address the

temporal issue, noting that “[t]he potential for future

relief does not control our disposition, because

whatever may occur in the future cannot undo what

has occurred in the past.” Id. at 1032-33 (Kennedy, J.,

concurring in the judgment). As he explained, the

1988 law “may have deprived petitioner of the use of

his land in an interim period,” and if that “deprivation

amounts to a taking, its limited duration will not bar

constitutional relief.” Id. at 1033. Pointing to First

English, Justice Kennedy emphasized that it is “well

established that temporary takings are as protected

by the Constitution as are permanent ones.” Id.

14

And so this Court went on to review Lucas’s claim,

concluding that the Council’s actions—although

temporary—amounted to a total regulatory taking.

While the Council might be able to “avoid having to

pay compensation for a permanent deprivation,”

“where the regulation has 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 1030 n.17 (majority) (quoting

First English, 482 U.S. at 321) (brackets omitted).

2. Given that background, one might wonder why

the court below held that petitioner and other

property owners lacked a Lucas claim for the sixmonth total deprivation of economic use they suffered

under the Governor’s order. The answer, according to

the Michigan Court of Appeals, was found in this

Court’s subsequent decision in Tahoe-Sierra, which

held that a multi-year moratorium on land

development was not a total regulatory taking under

Lucas. See Pet. App. 29a-32a. The court below

misunderstood Tahoe-Sierra’s reach. 2

2 The decision below also suggested that petitioner might

have been able to have used its gym for “remote fitness services”

such as “online classes” during the shutdown. Pet. App. 32a n.16.

But such far-fetched speculation could not defeat the total

regulatory takings claim here any more than the assertion that

Lucas was free to use his beachfront property as a “fishing or

camping” site could defeat his. 505 U.S. at 1065 n.3 (Stevens, J.,

dissenting). In all events, this Court can grant review, hold that

a Lucas claim is available so long as petitioner suffered a total

deprivation of economic use from the Governor’s order

notwithstanding its temporary nature, and remand for factfinding on the total deprivation question.

15

The only “question presented” in Tahoe-Sierra was

“whether a moratorium on development imposed

during the process of devising a comprehensive landuse plan constitutes a per se taking.” 535 U.S. at 306.

And while this Court answered that question in the

negative, it emphasized the “narrow scope of [its]

holding.” Id. at 307.

Specifically, Tahoe-Sierra concerned two moratoria

that prohibited “virtually all development” of land in

the Lake Tahoe basin for “32 months” while an agency

conducted an environmental study. Id. at 306. The

property owners, who had purchased land in the basin

with the intent to build single-family homes, argued

that the moratoria amounted to a total regulatory

taking under Lucas. Although it was undisputed that

the property owners had been temporarily deprived of

“all economically viable use of their land,” id. at 316,

the Court thought that “fairness and justice” would be

“best served by relying on the familiar Penn Central

approach when deciding cases like this, rather than”

Lucas’s “categorical rule.” Id. at 342.

Writing for the Court, Justice Stevens explained

that while Lucas involved an “‘extraordinary’”

regulatory taking, land-development moratoria such

as the one at issue “are used widely among land-use

planners to preserve the status quo while formulating

a more permanent development strategy,” and hence

no different “from ordinary permit delays.” Id. at 337

& n.31. Indeed, First English itself had indicated that

its analysis of temporary takings would not apply to

“normal delays in obtaining building permits, changes

in zoning ordinances, variances, and the like.” 482

U.S. at 321. In that sense, Tahoe-Sierra’s holding

arguably fit within a long line of takings precedents.

16

Unfortunately, Tahoe-Sierra also made sweeping

statements—unnecessary to the resolution of the

“narrow” question presented—that called into

question the very possibility of a temporary taking

under Lucas. 535 U.S. at 307. Specifically, it opined

that “the entire parcel” of an “interest in real property”

is defined not just by “the metes and bounds that

describe its geographic dimensions,” but also by “the

temporal aspect of the owner’s interest.” Id. at 331-32.

And it suggested that a temporary regulatory taking

can never amount to a 100% deprivation of value:

“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.” Id. at 332.

Chief Justice Rehnquist, joined by Justice Scalia

and Justice Thomas, dissented. Id. at 343-54

(Rehnquist, C.J., dissenting). On the narrow question

presented, Chief Justice Rehnquist agreed that Lucas

did not require “finding that an array of traditional,

short-term, land-use planning devices are takings.”

Id. at 351. But in his opinion, the moratoria at issue—

which by the dissenters’ calculation lasted six years—

bore “no resemblance to the short-term nature of

traditional moratoria as understood from these

background examples of state property law.” Id. at

354. Chief Justice Rehnquist therefore concluded that

“the ‘temporary’ denial of all viable use of land for six

years is a taking” under “the Lucas rule.” Id. at 351.

As for the broader language in the majority opinion,

Chief Justice Rehnquist explained that both First

English and Lucas “reject[ed] any distinction between

temporary and permanent takings when a landowner

is deprived of all economically beneficial use of his

17

land.” Id. at 347. And as a conceptual matter, he

thought any attempt to draw such a distinction would

be “tenuous” and invite abuse. Id. In his view, the

“temporary” moratoria in Tahoe-Sierra lasted six

years—much longer than the so-called “permanent”

prohibition in Lucas. Id. at 346-47. And that meant

that the takings analysis under a temporarypermanent dichotomy would hinge “entirely on the

initial label given a regulation.” Id. at 347. That

framework would give “every incentive for

government to simply label any prohibition on

development ‘temporary,’ or to fix a set number of

years.” Id. Indeed, it would do nothing to prevent a

government from “repeatedly extending [a]

‘temporary’ prohibition into a long-term ban.” Id.

Justice Thomas, joined by Justice Scalia, penned a

separate dissent to criticize the theory “that the

temporary moratorium at issue here was not a taking

because it was not a taking of the parcel as a whole.”

Id. at 355 (Thomas, J., dissenting) (quotation marks

omitted). In his view, “First English put to rest the

notion that the ‘relevant denominator’ is land’s

infinite life.” Id. Accordingly, “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.” Id. And

the mere fact that a plot of land could someday recover

its value was “cold comfort” to the landowners who

were barred from building Lake Tahoe homes in the

present. Id. at 356. “After all,” Justice Thomas

observed, “in the long run we are all dead.” Id.

(quoting J. Keynes, MONETARY REFORM 88 (1924))

(cleaned up).

18

B. The lower courts have overread TahoeSierra to the harm of property owners.

Unfortunately, the lower courts have taken the

sweeping yet unnecessary statements in Tahoe-Sierra

about “temporary” Lucas takings as a core feature of

takings doctrine. For example, the court below read

Tahoe-Sierra to hold that while “a permanent

deprivation of an owner’s use of an entire parcel of

property constitutes a taking of the whole parcel,” a

“temporary restriction” does not. Pet. App. 30a-31a.

That misunderstanding comes with two significant

problems—one practical and one precedential.

1. As a practical matter, the malleable temporarypermanent dichotomy has predictably invited the

abuse Chief Justice Rehnquist feared. The recent

spate of COVID-19 eviction moratoria represents just

the tip of the iceberg. See supra at 6.

Local

governments have also begun to adopt eviction

moratoria that subject property owners to seasonal

takings each year.

Take a Tacoma ordinance passed in 2023 that

prohibits evictions “between November 1 and April 1.”

Tacoma Mun. Code § 1.100.060. Commendably, the

law is meant to protect the indigent from the

hardships of eviction in “cold[] weather.” Id. But for

those five months, Tacoma landlords are powerless to

evict even those tenants who are paying zero dollars

in rent. See id. To the Tacoma city government, five

months may be just a blip in the long life of a feesimple estate. But to a Tacoma landlord, owing five

months of mortgage payments while collecting zero

rent could be a life-altering crisis. As this Court

recently noted, “many landlords have modest means,”

19

and eviction moratoria can put them “at risk of

irreparable harm by depriving them of rent payments

with no guarantee of eventual recovery.” Alabama

Ass’n of Realtors v. HHS, 594 U.S. 758, 765 (2021); see

also NAA, Breaking Down One Dollar of Rent (2023)

(reporting that the rental housing industry “is

predominantly made up of small mom-and-pop

owners” and “operates on narrow profit margins”).

To take another example, San Francisco forbids

evictions “during the school year” if one of the tenants

is a child or “educator” (or has a custodial or familial

relationship with one). San Francisco Admin. Code

§ 37.9. And “educators” include not just teachers, but

classroom aides, cafeteria workers, security guards,

and administrative staff as well. Id. Given that San

Francisco’s school year runs from mid-August to midJune, the city’s landlords could easily find themselves

unable to collect a single dollar from their properties

for 10 months at a time. See id.

This is not a Bay Area aberration. Both Seattle and

Tacoma have adopted similar prohibitions on schoolyear evictions. Tacoma Mun. Code § 1.100.060; Seattle

Mun. Code § 25.205.110. And while limited to the

school year in theory, such laws can force property

owners “to provide housing without compensation for

over a year at a time.” C. McKenney, As Affordable

Housing Crumbles, Reconsider School Year Eviction

Bans,

FIX HOMELESSNESS (Oct.

2,

2024),

https://tinyurl.com/2wm685p8. Last year in Tacoma,

for instance, after some tenants stopped paying rent

in May, the property owner began eviction

proceedings in July and secured judgment in late

August. Id. But with the onset of the school year, the

tenants can live rent-free “until June 23, 2025.” Id.

20

While these measures may have been well

intentioned, they force “individual property owners” to

shoulder “‘public burdens which, in all fairness and

justice, should be borne by the public as a whole.’”

Sheetz v. Cnty. of El Dorado, 601 U.S. 267, 273 (2024).

Property owners compelled to provide free housing to

teachers for months at a time should at least have the

opportunity to pursue just compensation via a Lucas

claim. But under the current regime, those claims go

to die under Penn Central.

2. As a precedential matter, overreading TahoeSierra to create a temporary-permanent dichotomy for

all total regulatory takings threatens “the precedent’s

consistency and coherence with previous [and]

subsequent decisions.” Ramos v. Louisiana, 590 U.S.

83, 121 (2020) (Kavanaugh, J., concurring in part).

Looking backwards, that reading of Tahoe-Sierra is

at odds with First English. In First English, a church

challenged a Los Angeles ordinance that prohibited it

from rebuilding after its property was destroyed by a

flood, thereby allegedly denying the church all use of

its property. 482 U.S. 304. This Court assumed

without deciding that the ordinance did, in fact, deny

the church all use of its property, id. at 322, leaving

the question whether “‘temporary’ regulatory

takings—those regulatory takings which are

ultimately invalidated”—require just compensation,

id. at 310. The Court answered yes, holding that

“‘temporary’ takings which, as here, deny a landowner

all use of his property, are not different in kind from

permanent takings.” Id. at 318. It likened total

regulatory takings to a government leasehold,

which—even if just “for a period of years”—would

clearly require compensation. Id. at 319.

21

A broad reading of Tahoe-Sierra is also hard to

square with Lucas itself. Lucas reaffirmed that

“temporary deprivations of use are compensable

under the Takings Clause.” 505 U.S. at 1012 (citing

First English, 482 U.S. 304). And Lucas went on to

find a per se taking in the context of a ban that lasted

only two years. See supra Pt. II.A.1.

Looking forward, a distinction between permanent

and temporary takings stands in tension with Cedar

Point Nursery v. Hassid, 594 U.S. 139 (2021). There,

this Court held that a regulation requiring employers

to “allow union organizers onto their property for up

to three hours per day, 120 days per year” constituted

a per se physical taking. Id. at 143. It made clear that

“a physical appropriation is a taking whether it is

permanent or temporary,” with “duration” bearing

“only on the amount of compensation.” Id. at 153. Of

course, Cedar Point concerned “a physical rather than

a regulatory taking,” id. at 149, but a total regulatory

taking is “the equivalent of a physical” one, Lucas, 505

U.S. at 1017; see also Pumpelly v. Green Bay &

Mississippi Canal Co., 80 U.S. 166, 177-78 (1871).

C. This case offers an excellent opportunity

to clarify Tahoe-Sierra.

Given these problems, this Court should grant

review and inform lower courts of Tahoe-Sierra’s

limited reach. Nothing about “stare decisis requires

adherence to a broad reading” of a decision when a

narrow one would harmonize the decision with other

precedents. Arizona v. Gant, 556 U.S. 332, 348 (2009).

And here, this Court can do just that by limiting

Tahoe-Sierra to its central holding—that traditional

land-development moratoria are not per se takings.

22

That understanding of Tahoe-Sierra would be far

more consistent with precedent than the reading

adopted below. This Court’s regulatory takings cases

have long recognized an exception for time-honored

land use processes, such as “normal delays in

obtaining building permits, changes in zoning

ordinances, variances, and the like.” First English,

482 U.S. at 321. In Lucas, for instance, the Court

recognized that South Carolina’s ban on using coastal

land might escape the rule for total regulatory takings

if such a prohibition “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. The Tahoe-Sierra

dissenters likewise agreed that “short-term delays

attendant to zoning and permit regimes are a

longstanding feature of state property law.” 535 U.S.

at 352 (Rehnquist, C.J., dissenting); see also Sheetz,

601 U.S. at 284 (Kavanaugh, J., concurring)

(describing “permit conditions” as a “longstanding …

practice” left untouched by takings precedents).

Traditional land-development moratoria fall within

that time-tested exception. Indeed, they are “[o]ne of

the oldest tools of land use regulation.” Resp. Br. at 23,

Tahoe-Sierra, 535 U.S. 302 (No. 00-1167), 2001 WL

1480565. It thus would have been remarkable to have

extended the Lucas test—“designed to apply to only

the most extraordinary circumstances—to … [that]

well-established and widely-used tool.” Id. (cleaned

up). This Court thus can maintain the rule that

traditional land-development moratoria, like the ones

that protected Lake Tahoe’s “noble sheet of blue

water,” are not per se takings. 535 U.S. at 307.

23

But this Court can and should reject Tahoe-Sierra’s

unnecessary

suggestion

that

no

temporary

regulation—no matter how unprecedented or

extreme—can ever amount to a per se taking under

Lucas. That gives governments a free pass for all

kinds of temporary regulations—like those requiring

property owners to provide free housing to teachers or

shutter their gyms for months on end—that go well

beyond any reasonable expectations. Indeed, unlike

property that “could be developed” once a development

“moratorium ended,” many “gyms and fitness centers

went out of business” due to “the ‘temporary’” takings

here. Pet. App. 46a (Viviano, J., dissenting). 3

This petition presents the perfect opportunity for

this Court to bring clarity to this area of the law.

Unlike a case involving traditional regulations, the

situation here is the paradigmatic example of an

“extraordinary circumstance” where a government

permitted “no productive or economically beneficial

use” of property—albeit for six months as opposed to

two years. Lucas, 505 U.S. at 1017. And while the

pandemic is behind us, regulators have not been shy

about experimenting with novel temporary takings

such as school-year eviction bans. This Court should

grant review and make clear that the Constitution

does not come with a carveout for takings that are

“capable of repetition, yet evading review.”

3 Of course, this Court need not decide whether the Governor’s

orders went beyond the State’s police powers inherent in

property rights under Michigan law. It could hold that Lucas

claims are available for some temporary takings and remand the

property-rights question to the Michigan courts. That said, the

Michigan Supreme Court has already held that the Governor’s

orders exceeded her authority under state law. Supra at 3.

24

CONCLUSION

This Court should grant certiorari and reverse the

decision below.

FEBRUARY 18, 2024

Respectfully submitted,

SOPHIA CHUA-RUBENFELD

JONES DAY

1221 Peachtree Street, NE

Suite 400

Atlanta, GA 30361

BRINTON LUCAS

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

blucas@jonesday.com

Counsel for Amici Curiae