Amicus Curiae Brief — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

iN FILED

j \

S MAR 19 2001

No. 00-1167

CLERK

In the

Supreme Overt, 8.5.

Supreme Court of the United States

+

TAHOE-SIERRA PRESERVATION COUNCIL, INC..,

a California non-profit corporation and

membership organization, et al.,

Petitioners.

Vv.

TAHOE REGIONAL PLANNING AGENCY,

a separate legal entity created pursuant to

Bi-State Compact, et al.,

Respondents.

+

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

eo

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

—~>

MERIEM L. HUBBARD

Counsel of Record

R. S. RADFORD

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation

\A \ \

i

QUESTIONS PRESENTED

1. In light of this Court’s clear holding that a temporary

moratorium on land use can require compensation for a

temporary taking of property (First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987)), is it permissible for the Ninth Circuit Court of Appeals

to hold—as a matter of law—that a temporary moratorium can

never require constitutional compensation?

2. Can a land use regulatory agency escape its

constitutional duty to pay for land taken for public use by the

expedient of enacting a series of rolling, back-to-back

“temporary” moratoria/prohibitions extending over a period of

20 years, and then claiming that each of the individual

prohibitions on a// use must be viewed in isolation from the

others and, when so viewed, none was severe enough by itself

to cross the constitutional taking threshold?

In similar fashion, can such an agency escape the

constitutional obligation of compensation because a court

injunction issued in a different case barred issuing permits to ofher

landowners, while the agency’s own regulations precluded all

use of the Petitioners’ land?

3. Can a land use regulatory agency purport to “protect

the environment” at a major regional location (here, Lake

Tahoe) by compelling a selected group of individual

landowners to forego a// use of their individual homesites, and

thereby compel a de facto donation of their land for public use

without compensation?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............0.0.00ceceeueees

TABLE OF AUTHORITIES ................0.0cceeueues iii

INTEREST OF AMICUS CURIAE ..................000-

STATEMENT OF THE CASE ...............0.0.0e00eee 2

SUMMARY OF ARGUMENT ...................0.0000- 3

ere” 4

1. THE OPINION BELOW CONFLICTS

WITH THE LONG-ESTABLISHED

PRECEDENT OF Vite COS co ccccncccncusueens 4

A. The Theory of the “Temporal Whole” Applied

by the Ninth Circuit to Deny Appellants’

Takings Claim Is Unsupportable After Lucas v.

South Carolina Coastal Council ................ 4

B. Property Law Routinely Divides Property

Interests into Temporal Segments ............... 7

ll. THE LOWER COURT’S FAILURE TO

RECOGNIZE TEMPORARY REGULATORY

TAKINGS CONFLICTS WITH DECISIONS

OF STATE CURRED. .. 0 cccescceseuueeeie ena 10

lll. THERE IS NO CONSTITUTIONAL DIFFERENCE

BETWEEN A PERMANENT REGULATION

INVALIDATED AS AN UNCONSTITUTIONAL

TAKING AND A TEMPORARY REGULATION

THAT EPPOCTS A TARRGS ....cccscccvesuesesen 11

CUONCLATIIIN ... 0s 0cccces000s65 een ene 14

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......... 1]

Armstrong v. United States, 364 U.S. 40 (1960) ........ 10

Bank of the Orient v. Town of Tiburon,

269 Cal. Rptr. 690 (Ct. App. 1990) ............0..5. 12

Corn v. City of Lauderdale Lakes,

95 F.3d 1066 (1 Ith Cir. 1996),

cert. denied, 522 U.S. 981 (1997) ..............445. 12

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

ee 9-10

Kimball Laundry Co. v. United States,

eed ns occ e coc ecesccecces 9

Lucas v. South Carolina Coastal Council,

CS 1, 3-4, 6, 11

Nollan v. Californi:: Coastal Commission,

EE |

Palazzolo v. Rhode Island, No. 99-2047

Ee cc cgescescceoccesscces l

Penn Central Transportation Co. v.

City of New York, 438 U.S. 104 (1978) ........... 4-6

Pennsylvania Coal Co. v. Mahon,

ME evogddsusedoveesaccesce 3-4

Pumpelly v. Green Bay Co.,

80 U.S. (13 Wall.) 166 (1871)............6.. 9, 12-14

iV

TABLE OF AUTHORITIES—Continued

Schiavone Construction Co. v. Hackensack

Meadowlands Development Commission,

GC GHEE Co ceecccecscecececosees 10

Seawall Associates v. City of New York,

542 N.E.2d 1059 (N.Y.), cert. denied,

Se es SD 6626 cbdesceeskdeveeesies 10, 12

St. Aubin v. Biggane, 381 N.Y.S.2d 533 (1976) ........ 11

Suitum v. Tahoe Regional Planning Agency,

Ss SE Coch aaccdskanosksavecuadewien l

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

216 F.3d 764 (9th Cir. 2000).............. 2-3, 6-7, 11

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

34 F. Supp. 2d 1226 (D. Nev. 1999) ................ 2

United States v. General Motors Corporation,

Fa es SUPE 64664466 cb bee bone eteenscede 8-9

United States Constitution

RUMMY os oc seid ddvecsadeenscéennbinnsensene 4,12

Rules

PE a+ cecssackts debian eee l

FED accconcccccccusciesisdseoedentsaseeetucu l

INTEREST OF AMICUS CURIAE'

For more than 25 years, Amicus Pacific Legal Foundation

(PLF) has been litigating in support of the rights of individuals

to make reasonable use of their private property. PLF attorneys

have been before this Court on three occasions representing

individuals whose right to use their property was unlawfully

denied by government agencies. See Palazzolo v. Rhode Island,

No. 99-2047 (argued on Feb. 26, 2001); Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997); Nollan v.

California Coastal Commission, 483 U.S. 825 (1987). And

PLF has participated as amicus curiae in nearly every major real

property takings case heard by this Court in the past two

decades.

PLF previously participated as amicus curiae in this case.

PLF filed amicus briefs in support of Tahoe-Sierra Preservation

Council and others (Petitioners herein) on appeal from the

United States District Court for the District of Nevada and in

support of a petition for rehearing en banc of the Ninth Circuit

panel’s decision on appeal. PLF believes that its public policy

perspective and litigation experience will provide an additional

viewpoint on the issues presented in this case. Specifically,

PLF argues that the Ninth Circuit Court’s decision in this case

conflicts with this Court’s decision in Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992). PLF also argues that

it is common in property law to divide interests into temporal

segments, and that a contrary approach—a theory of the

' Pursuant to this Court’s Rule 37.2(a), all parties have consented

to the filing of this brief. Letters evidencing such consent have been

filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the

preparation or submission of this brief.

2

temporal whole—in takings law does not provide the individual

protections required by the Constitution.

STATEMENT OF THE CASE

Petitioners are owners of single-family residential lots in

the Lake Tahoe Basin. On June 25, 1981, the Tahoe Regional

Planning Agency (TRPA) adopted the first in a series of

moratoria prohibiting residential use in parts of the Lake Tahoe

region involved in this litigation. The “temporary” building

prohibition lasted 20 years, and prevented Petitioners from

building residences or making any other economically

reasonable use of their property during that period of time.

Petitioners filed an action asserting that TRPA’s

restrictions on the use of their lots amounted to temporary

takings of private property for public use without just

compensation. The United States District Court for the District

of Nevada agreed and held that Ordinance 81-5 and Resolution

83-21 constituted a categorical taking of Petitioners’ property

and awarded Petitioners compensation for the regulatory taking.

In reaching this conclusion, the court made the following

finding of fact: Ordinance 81-5 and Resolution 83-21 did in

fact deny the Petitioners all economically viable use of their

land. Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 34 F. Supp. 2d 1226, 1243-45

(D. Nev. 1999).

On appeal, the Ninth Circuit Court of Appeals reversed,

although it accepted the factual finding that TRPA’s moratoria

effectively deprived Petitioners of all economically viable use

of their property. Instead, the reversal was based on the court’s

assertion that the Takings Clause does not require compensation

when a regulation is intended from the outset to last for a

limited period of time. Tahoe-Sierra Preservation Council, Inc.

v. Tahoe Regional Planning Agency, 216 F.3d 764, 777 (9th

3

Cir. 2000). This ruling directly conflicts with the established

precedent of this Court on a question of federal constitutional

law.

SUMMARY OF ARGUMENT

This case asks whether the Takings Clause of the Fifth

Amendment requires that government compensate private

property owners when building moratoria deny all economically

viable use of their property, or whether, to the contrary, there is

something about building moratoria that allows government to

deny use of property without compensating the property owner.

Because moratoria can affect landowners to the same extent as

permanent regulation, the question of whether moratoria can

create takings goes to the heart of the Constitution’s protection

of private property.

The Ninth Circuit Court of Appeals held that building

moratoria are different from other government activity that

violates the Fifth Amendment because moratoria are intended

to be temporary and deny landowners all use of their property

for only a small piece of the “temporal whole.” Thus, under the

Ninth Circuit’s theory, property owners cannot receive compen-

sation for the time they are denied use of their property because

the property may retain some value after moratoria are lifted.

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414-15

(1922), Justice Holmes explained that government’s power to

redefine the range of interests included in the ownership of

property is constrained by the Constitution. Justice Holmes was

discussing the enforcement of the protection against physical

appropriations, but the message is no less applicable to

regulatory takings cases.

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 disappeared.”

4

Lucas, 505 U.S. at 1014 (citing Pennsylvania Coal Co. v.

Mahon, 260 U.S. at 415).

In this case, the Ninth Circuit’s theory of the “temporal

whole” defines property interests so broadly that moratoria,

temporary by nature, cannot create a temporary taking. This is

so even if moratoria last for decades and deprive all use of

property for a large chunk of the temporal slice that makes up

the property owner’s life. Under the Ninth Circuit's ruling, a

landowner’s private property rights can disappear, and no

compensation is due for the loss. That result conflicts with

decisions of this Court and of various state courts that recognize

temporary takings can and do result from building moratoria,

and disregards the focus of the Takings Clause—the impact of

regulation on the individual property owner, not the advantage

realized by the sovereign.

ARGUMENT

I

THE OPINION BELOW CONFLICTS

WITH THE LONG-ESTABLISHED

PRECEDENT OF TH!S COURT

A. The Theory of the “Temporal Whole”

Applied by the Ninth Circuit to Deny

Appellants’ Takings Claim Is Unsupportable

After Lucas v. South Carolina Coastal Council

The Takings Clause of the Fifth Amendment to the United

States Constitution consists of just 12 words, “nor shall private

property be taken for public use, without just compensation.”

U.S. Const. amend. V. But the simple and clear mandate of the

Takings Clause has proven far from simple to apply to the

myriad circumstances where the interests of government and

private property owners intersect. In Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 124

(1978), this Court noted the difficult task of determining what

constitutes a taking.

5

{T}his Court, quite simply, has been unable to

develop 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. Indeed, we have

frequently observed that whether a_ particular

restriction will be rendered invalid by the

government's failure to pay for any losses

proximately caused by it depends largely “upon the

particular circumstances [in that] case.”

Citations omitted.

The question in Penn Central was whether denial of an

application to construct an office building on top of New York

City’s famous Grand Central Terminal constituted a taking.

The proposed addition to the Terminal violated a Landmarks

Preservation Law under which the Terminal was designated a

landmark and the “city tax block” it occupied was designated a

“landmark site.” Appellant owners of the Terminal also owned

other property in the same area of midtown Manhattan.

The Penn Central majority noted that takings cases

examine the character of government action and the nature and

extent of interference with rights in the parcel as a whole. /d.

at 130-31. “*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.” /d.

at 130. The interference with appellants’ property rights in

Penn Central was insufficient to effect a taking because the

restrictions “afford appellants opportunities further to enhance

not only the Terminal site proper [(the City tax block)] but also

other properties.” /d at 138. Thus, the relevant parcel for

takings analysis included not only the air space above the

Terminal, but the Terminal itself, the land on which it sits, and

appellants’ other properties in the area.

6

The aggregation of interests in Penn Central was

condemned 14 years later. In Lucas v. South Carolina Coastal

Council, 505 U.S. at 1016 n.7, this Court cited Penn Central as

“an extreme—and, we think, unsupportable—view of the

relevant calculus.” Yet, in this case, the Ninth Circuit Court of

Appeals employed the very technique disapproved in Lucas to

arrive at a theory of the “temporal whole.” See Tahoe-Sierra

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

216 F.3d at 776-77.

The Ninth Circuit Court noted that the relevant property

interests are the “whole parcels of property that [Petitioners]

own.” /d. at 779. Apparently, those whole parcels include the

“use” of the property “from the present to the future.” See id.

at 782. Development moratoria, according to the court, are

“finite temporal segments” (id. at 778) that deny Petitioners

“only a small portion of this future stream; the 32 months

during which the moratorium was in effect represents a small

fraction of the useful life of the Tahoe properties” (id. at 782).

Because the moratorium on development did not deprive

Petitioners of all future use of their property, there was no

taking. Government did not interfere with the rights in the

“temporal whole” of Petitioners’ property rights.

In the same way the Penn Central majority increased the

physical size of the relevant parcel by including other nearby

properties owned by the same entity, the Ninth Circuit Court

increased the “temporal size” of the relevant property interest

by looking at the economically viable use a property retains

after development moratoria have run their course. Under the

Ninth Circuit’s theory, adevelopment moratorium lasting 3 years

or 25 years would not constitute a taking of the “temporal

whole” because there is a potential for an economically viable

use of property sometime in the future.

The “parcel as a whole” language in Penn Central

describes the physical property that constitutes the relevant

-

—_—

— =

J

parcel in a regulatory takings claim. In Tahoe-Sierra, the

Ninth Circuit Court divides property into different

dimensions—spatial, functional, and temporal—and attempts

to force all three into a “parcel as a whole” type theory. See

Tahoe-Sierra, 216 F.3d at 774-76. In other words, a taking

occurs when government allows no use (the functional

dimension) of an entire parcel (the spatial dimension),

for the useful life of the property (the temporal dimension).

See id. at 776. The Ninth Circuit Court does make one

exception—severance of the spatial dimension, according to the

court, is the norm in physical appropriation cases. /d. at 779.

Depending on the facts of a case, it may be that there is no

taking when government denies some, but not all, economically

viable use of a parcel or when governmert denies all use of only

a discrete portion of a parcel. But it does not follow that there

is no taking when government denies all use of property for a

period short of its useful life. The reality is that the useful life

of land generally far exceeds the human life span. Thus, the

Ninth Circuit’s rule could easily deprive landowners of all use

of their land for an entire lifetime—the only relevant “temporal

dimension” from the viewpoint of the individual whose rights

are supposed to be protected by the Constitution.

B. Property Law Routinely Divides Property

Interests into Temporal Segments

The Ninth Circuit denied Petitioners’ takings claims

because, according to the court, development moratoria deny

economically viable use of property for only a “temporal slice”

of the total fee interest. ZTahoe-Sierra, 216 F.3d at 779. The

court ignores the fact that property law—even takings law—

routinely divides property interests into temporal segments.

Property interests are divided into present interests and future

interests, a life estate, or estates for years (leases for several

years, a single year, months, or weeks). Each of these interests

8

includes the use of property for a “temporal slice” of the total

fee interest.

In United States v. General Motors Corporation, 323 U.S.

373, 374 (1945), this Court had no trouble requiring

compensation for the temporary taking of a leasehold interest.

The United States exercised its power of condemnation under

the Second War Powers Act of March 27, 1942, to temporarily

occupy—for one year—a portion of a warehouse building

leased to General Motors for a period of 20 years. /d. at 375-

76. This Court examined the scope and meaning of critical

terms in the Takings Clause. “Property” encompasses each of

the interests a citizen holds in a physical thing. /d. at 377-78.

An individual’s interest

may comprise the group of rights for which the

shorthand term is “a fee simple” or it may be the

interest known as an “estate or tenancy for years,” as

in the present instance. The constitutional provision

is addressed to every sort of interest the citizen may

possess.

Id. at 378 (emphasis added).

The term “taken” focuses on the deprivation experienced

by a property owner and not on the interest acquired by

government. /d. Thus, “[glovernmental action short of

acquisition of title or occupancy has been held, if its effects are

so complete as to deprive the owner of all or most of his interest

in the subject matter, to amount to a taking.” /d. The amount

of compensation constituting “just compensation” depends on

the interest taken—whether government takes an owner’s whole

interest, or chops an owner’s interest “into bits, of which it

takes only what it wants, however few or minute, and leaves

him holding the remainder, which may then be altogether

useless to him.” /d. at 382.

= —

9

The piece chopped from the owner’s interest in United

States v. General Motors Corporation was the period of time

General Motors was denied all use of its leasehold interest. /d.

And the need to pay compensation was based on the temporary

deprivation of use of the property—it did not depend on

government’s physical occupation of the property.

[W]hether the sovereign substitutes itself as

occupant in place of the former owner, or destroys

all his existing rights in the subject matter, the Fifth

Amendment concerns itself solely with the

“property,” i.e., with the owner’s relation as such to

the physical thing and not with other collateral

interests which may be incident to his ownership.

Id. at 378.

In another War Powers Act case, Kimball Laundry Co. v.

United States, 338 U.S. 1, 6 (1949), this Court upheld an award

of just compensation for a temporary taking of land, plant, and

equipment, and determined that the United States should have

paid compensation for the going-concern value of the family

laundry business (id at 16). As in General Motors

Corporation, the deprivation of use of property for a limited

period of time was key (see id. at 6, 14-15). The temporary

taking interrupted an ongoing business, thereby appropriating

an established customer base and forcing the owners of the

laundry to wait and see what remained of their investment when

government was finished using the property. /d. at 14-15 & n.6.

General Motors and Kimball Laundry were both

condemnation cases, but the same reasons for compensating a

temporary denial of use of property apply in the context of

regulatory takings. See Pumpelly v. Green Bay Co., 80 U.S. (13

Wall.) 166, 177-78 (1871). The deprivation experienced by a

property owner is the same regardless of the mechanism utilized

by government to deny all use of the property. In First English

Evangelical Lutheran Church of Glendale v. County of Los

10

Angeles, 482 U.S. 304, 318 (1987), this Court acknowledged

that temporary takings denying all use of property “are not

different in kind from permanent takings, for which the

Constitution clearly requires compensation.”

THE LOWER COURT'S FAILURE

TO RECOGNIZE TEMPORARY

REGULATORY TAKINGS CONFLICTS

WITH DECISIONS OF STATE COURTS

State courts recognized temporary regulatory takings even

before First English. In Schiavone Construction Co. v.

Hackensack Meadowlands Development Commission, 486 A.2d

330 (N.J. 1985), a series of resolutions placed a 19-month

moratorium on real estate development. /d. at 331-32. The

Supreme Court of New Jersey determined that temporary land

use restrictions may constitute a taking if sufficiently extensive

and prolonged. /d. at 332-33.

The New York Court of Appeals, in a post-First English

case, found both physical and regulatory takings when New

York City imposed a moratorium on the demolition or

conversion of structures containing single-room occupancy

units and required that owners rehabilitate all vacant units and

offer them for rent. Seawall Associates v. City of New York,

542 N.E.2d 1059, 1060-61 (N.Y.), cert. denied, 493 U.S. 976

(1989). The court held that the loss of possessory

interests—including the right to exclude—constituted a per se

physical taking. /d. at 1064. The law also created a regulatory

taking by “ ‘forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by the public

as a whole’ (id. at 1065 (quoting Armstrong v. United States,

364 U.S. 40, 49 (1960))), and by depriving owners of the right

to make economically viable use of their prorerties (id. at 1066-

67).

1]

St. Aubin v. Biggane, 381 N.Y.S.2d 533 (1976), a New

York Supreme Court, Appellate Division, case, dealt with a

moratorium that prevented plaintiffs from deriving any

economic advantage from their property for two-and-a-half

years, and that allegedly would continue to deny all use for

another year-and-a-half. /d. at 535. The New York court held

that the facts raised a constitutional takings claim and that a

moratorium cannot last for an unreasonable time. /d.

These state courts had no trouble finding that takings may

result from government acts that deny all use of private property

for a period of time less than the temporal whole—even when

those acts were never intended to be permanent.

THERE IS NO CONSTITUTIONAL DIFFERENCE

BETWEEN A PERMANENT REGULATION

INVALIDATED AS AN UNCONSTITUTIONAL

TAKING AND A TEMPORARY

REGULATION THAT EFFECTS A TAKING

The Ninth Circuit Court decided that temporary takings

are created when ordinances that create permanent takings are

invalidated—temporary takings are not created by moratoria

designed from the outset to last for a limited period of time.

Tahoe-Sierra, 216 F.3d at 778. But government can create a

temporary taking under the Fifth Amendment in the same way

it creates permanent takings. A regulation that does not

substantially advance a legitimate state interest or that denies an

owner economically viable use of his property effects a taking.

Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). “[T]otal

deprivation of beneficial use is, from the landowner’s point of

view, the equivalent of a physical appropriation.” Lucas v.

South Carolina Coastal Council, 505 U.S. at 1017.

Development moratoria, originally intended to last for a

brief period of time, can and oftentimes do remain in effect for

12

many months or even years.’ Indeed, as demonstrated by the

facts of the case before this Court, temporary planning

prohibitions may be effective for at least as long as a

“permanent” regulation that is challenged and invalidated in a

court of law. Under the Ninth Circuit’s rule that temporary

moratoria cannot give rise to a taking, a landowner denied all

use of his property for five years pursuant to a temporary

building moratorium will not be compensated for a temporary

taking. But a landowner denied all use of his property for five

years pursuant to a “permanent” regulation that is invalidated

by a court is entitled to compensation for a temporary taking.

This result might be supportable if the purpose of the Fifth

Amendment were to punish wrong or irresponsible regulatory

activity. But it is not—the Fifth Amendment protects and

secures the rights of the individual as against government by

providing that a landowner must be compensated when his

property is taken for a public use. U.S. Const. amend. V; see

Pumpelly v. Green Bay Co., 80 U.S. at 177-78.

> See, e.g., Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1068

(11th Cir. 1996), cert. denied, 522 U.S. 981 (1997) (“Originally, the

moratorium was to last for 150 days, but it eventually was extended

to last almost a year.” ), Seawall Associates v. City of New York, 542

N.E.2d at 1061 (city imposed |18-month moratorium on demolition

or conversion of some residential structures, which was extended for

five months; a subsequent law “extended the prior moratorium for an

initial five-year period with the possibility of unlimited renewals”),

Bank of the Orient v. Town of Tiburon, 269 Cal. Rptr. 690, 691-92

(Ct. App. 1990) (town adopted a “45-day interim urgency

ordinance,” which was extended for two months and extended again

for a year; voters adopted additional “development moratorium”

intended to last “some 15 months longer than the previously enacted

moratorium”).

13

The Ninth Circuit Court’s decision was based, at least in

part, on concern about the possibility of the widespread

invalidation of temporary planning moratoria.

Given the importance and long-standing use [of]

temporary moratoria, courts should be exceedingly

reluctant to adopt rulings that would threaten the

survival of this crucial planning mechanism.

Tahoe-Sierra, 216 F.3d at 777.

But, in Pumpelly, Justice Miller made it clear that the

paramount concern should be the impact of government activity

on the indjvidual.

It would be a very curious and unsatisfactory

result, if in construing a provision of constitutional

law, always understood to have been adopted for

protection and security to the rights of the individual

as against the government, and which has received

the commendation of jurists, statesmen, and

commentators as placing the just principles of the

common law on that subject beyond the power of

ordinary legislation to change or control them, it

shall be held that if the government refrains from the

absolute conversion of real property to the uses of

the public it can destroy its value entirely, can inflict

irreparable and permanent injury to any extent, can,

in effect, subject it to total destruction without

making any compensation, because, in the narrowest

sense of that word, it is not taken for the public use.

Such a construction would pervert the constitutional

provisions into a restriction upon the rights of the

citizen, as those rights stood at the common law,

instead of the government, and make it an authority

14

for invasion of private right under the pretext of the

public good, which had no warrant in the laws or

practices of our ancestors.

Pumpelly v. Green Bay Co., 80 U.S. at 177-78.

Although the useful life of the Tahoe properties may

extend well beyond TRPA’s planning moratorium, the lives of

the individual property owners represent much smaller slices of

the temporal whole. Property owners should not be denied

compensation for the 20-year period they were unable to use

their property just because the property is expected to retain

some value when the moratorium is lifted.

CONCLUSION

For these reasons, Amicus respectfully requests that this

Court grant the petition for writ of certiorari.

DATED: March, 2001.

Respectfully submitted,

MERIEM L. HUBBARD

Counsel of Record

R. S. RADFORD

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation