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

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Text

No. 00-1167

In The

Supreme Court of the United States

TAHOE SIERRA PRESERVATION COUNCIL, INC.,

a California non-profit corporation 4

and membership organization, et al.,

Petitiorwt,.

TAHOE REGIONAL PLANNING AGENCY,

a separate legal entity created pursuant

_to Bi-State Compact, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR PETITIONEsS

MicHaet M. Bercer*

GIDEON KANNER

BerGcer & Norton

A Law CorRPORATION

1620 26th Street

Suite 200 South

Santa Monica, CA 90404-4040

(310) 449-1000

Lawrence L. HorrMan

HorrMAN Law Offices

3000 No. Lake Boulevard

Post Office Box 7740

Tahoe City, CA 96145

(530) 583-8542

Counsel for Petitioners

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY”

QUESTION PRESENTED

Whether the Court of Appeals properly determined

that a temporary moratorium on land development does

not constitute a taking of property requiring compensa-

tion under the Takings Clause of the United States Con-

stitution?

TABLE OF CONTENTS

QUESTION PRESENTED.................eeeeeeeees

TABLE OF AUTHORITIES ................seeeee0e:

POUL .... «1: cs0cdcesdeusouswassnueeeeae

STATEMENT OF THE CASE.............0eeeeee0e:

SUMMARY OF ARGUMENT.............000000008:

THE CONSTITUTION REQUIRES JUST COM-

PENSATION FOR ALL TAKINGS, REGARDLESS

OF THEIR LENGTH OR THE MANNER OF

THEIR INSTIGATION. THUS, THE ISSUE IS NOT

WHETHER PROPERTY WAS TAKEN TEMPO-

RARILY, BUT WHETHER IT WAS TAKEN AT

BEA, oc cccccccvccccnccnsciseseeeuseeueeseuennnee

A All Takings Require Compensation......... .

B A Seizure Of The Right To Use Property -

Even Temporarily - Requires Compen-

CRUG . wc ccccctcccessecccesssecesesuuseseees

C First English Mandates Compensation For The

Impacts Of Deliberate Planning Moratoria

That - By Definition - Take The Right To

Make Economically Productive Use Of Prop-

erty. The Ninth Circuit Wholly Misunderstood

i Mth

FROM A LANDOWNER’S POINT OF VIEW,

GOVERNMENT IMPOSITION OF A FREEZE ON

ALL ECONOMICALLY PRODUCTIVE USES,

ALBEIT TEMPORARILY, IS THE EQUIVALENT

OF A TEMPORARY CONDEMNATION OF

SUCH LAND. IN EITHER EVENT, THE RIGHT-

FUL OWNER’S USE OF THE LAND HAS

BEEN TAKEN, AND JUST COMPENSATION IS

ot PPrrIrrittiiieT fee

TABLE OF CONTENTS - Continued

Page

“Eminent Domain” And “Police Power” Are

Really Two Sides Of The Same Coin........ 33

A “Police Power” Freeze On The Use Of

Vacant Land And An “Eminent Domain” Tak-

ing Are Functionally - and Constitutionally -

es an. dv esesebens 36

Good Government Intentions Do Not Vitiate

The Need For Compensation - Im Fact, They

EET EP PTTTTTTTTTrrTrri re 39

TRPA’s Conscious Decision To Prohibit The Use

Of The Petitioners’ Land Requires Compensa-

tion To Constitutionalize That Choice. ........ 44

At A Minimum, Compensation Is Due From

The Time A Moratorium Has A Substantial

Adverse Impact On Landowners..........-. 46

CONCLUSION .... 2.2.60 5c cece eeees ieueeesseececes 49

TABLE OF AUTHORITIES

Page

Cases

A.A. Profiles v. City of Fort women 253 F.3d 576

CR Gk Bs do 0 cc ccncds cons cacécandnsstetneson 17

Agins v. City of Tiburon, 24 Cal.3d 266 P.2d 25

(1979), aff'd on other grounds, 447 U.S. 255

SIPEED oc cccccescosececucencsesesesesaicanencene 26, 36

American Tower, L.P. v. City of Grant, 621 N.W.2d 37

(Minn. App. 2001).... 2.22... . 2 cece cece eee eeeeeeee 29

Armstrong v. United States, 364 U.S. 40 (1960)........ 34

Arverne Bay Construction Co. v. Thatcher, 278

DEUS Te GOUGE ceccccccccacccpenescosessesesess 24

Bass Enters. Prod. Co. v. United States, 133 F.3d 893

Be, Cie, Gas sccvtcncccsacscocnescncsccadeeces 31

Berman v. Parker, 348 U.S. 26 (1954).......... 16, 34, 36

Boston Chamber of Commerce v. Boston, 217 U.S. 189

GROUND o ccccccccccecosecepeseoeasoctebeecsesoses 10, 23

City of Austin v. Teague, 570 S.W.2d 389 (Tex. 1978) .... 36

City of Birmingham Planning Commn. v. Johnson

Realty Co., Inc., 688 So. 2d 871 (Ala. App. 1997) .... 29

City of Monterey v. Del Monte Dunes, 526 U.S. 687

CIPO se ccccecedesdnedssnoddecedbedebetéetales passim

City of Oakland v. Oakland Raiders, 174 Cal.App.3d

414, 220 Cal. Rptr. 153 (1985).............-..eeee 35

Cohens v. Virginia, 6 Wheat. [17 U.S.] 264 (1821)..11, 26

Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th

GO DUE ocbccdeccecccdal cashdcdcddctotuteths.tin 25

TABLE OF AUTHORITIES - Continued

Page

Dames & Moore v. Regan, 453 U.S. 654

sl daciendenedigadkdendendisstndenan 12, 33, 41

Davis v. Newton Coal Co., 267 U.S. 292 (1925)........ 20

Dolan v. City of Tigard, 512 U.S. 374 (1994).......... 50

Drakes Bay Land Co. v. United States, 424 F.2d 574

RE a ae ee Pee eT ee re 34

Eastern Minerals Int'l, Inc. v. United States, 36 Fed.

— 0 ee a ere 25

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) ............ passim

Fletcher v. Peck, 6 Cranch [10 U.S.] 87 (1810) ........ 34

Florida Rock Indus., Inc. v. United States, 18 F.3d

ee, GE Ms dk ond che ceehaenescoseees 23, 31

Florida Rock Products, Inc. v. United States, 45 Fed.

le SE chit dncn de ddtusadotecdtetaceces 17, 40, 43

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) .... 44

Griggs v. Allegheney County, 369 U.S. 84 (1962) ...... 42

Gunthner v. Planning Board, 762 A.2d 710 (N.J.S.

Pinte dacecddbdactcbasdbecibuddeoeseteteosis 29

Hawaii Housing Aath. v. Midkiff, 467 U.S. 229

D/L sihasivcedeon duds cotsorbsnetesestes 21, 35, 36

Hendler v. United States, 952 F.2d 1364 (Fed. Cir.

S66nesnddndcsedecnsaeedanenssadévyeces 16, 22, 27

Hughes v. Washington, 389 U.S. 290 (1967) ....... Meccan

Hurley v. Kincaid, 285 U.S. 95 (1932).............. 34, 42

Jacobs v. United States, 290 U.S. 13 (1933)............ 36

TABLE OF AUTHORITIES - Continued

Page

Kaiser Aetna v. United States, 444 U.S. 164

CIR s cccccovntnnsdnasseucsocnsesceecs 12, 16, 23, 41

Keshbro, Inc. v. City of Miami, ___ So.2d ___, 2001

CEs FOU CRs Mn cecdsconassccccassaccaccese 25

Kimball Laundry Co v. United States, 338 U.S. 1

GED 0c cvoceccdesccctucediswbetessvedéctes 16, 21, 30

Kirby Forest Indus., Inc. v. United States, 467 U.S. 1

(1984) ...... goeecccddcccccdocdecneevceueets 15, 17, 21

Lake Country Estates v. Tahoe Reg. Plan. Agency, 440

DG. FEO GRIGG oo cc cccdsdéccsccvvecccccesctccdéeccsss 1

Lockary v. Kayfetz, 917 F.2d 1150 (9th Cir. 1990)...... 37

Lomarch Corp. v. Mayor of Englewood, 237 A.2d 881

BEE, GE cobs edhe riveree ctocesccctédvicdsete sees 25

Loretto v. Teleprompter Manhattan CATV Corp., 458

DS. GAD GREED cevcdccccccdcsses 11, 12, 15, 24, 40, 41

Loveladies Harbor, Inc. v. United States, 28 F.3d 1171

CE, Ge Ts a cn ce do ctcedcsisccdesicdcsccecs 12, 48

Lucas v. South Carolina Coastal Council, 505 U.S.

BD Ce voce casccconcceseccsccosscccaesocns passim

Lucas v. South Carolina Coastal Council, 424 S.E.2d

Ge GE. TER 0. 00s cnccesccncccqsncccesccteppenses 19

Lynch v. Household Fin. Co., 405 U.S. 538 (1972)...... 10

MacDonald, Sommer & Frates v. Yolo County, 477

CREA By GE o ceccdacocansscoccscccocssdccesiuvd 37

Marandino v. Planning & Zoning Commn., 573 A.2d

FOR Glam. AGP. Teepe cc cccessccccsccccccccccesss 29

Nollan v. California Coastal Commn., 483 U.S. 825

GREED «. cccvcctsoscesccvaccstecdeteus cseeue 42, 44, 50

Vii

TABLE OF AUTHORITIES - Continued

Palazzolo v. Rhode Island, __ U.S. ____ (2001)......... 43

Penn Central Transp. Co. v. City of New York, 438

Se BS ED Kase dnnccccnnandevecsccocedcesdédive 36

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

i iieadecadddbnodesanstevandéavdcssseds 16, 39, 40

Pope v. De Poala, 574 N.Y.S.2d 869 (1991)............ 29

Preseault v. I.C.C., 494 U.S. 1 (1990) .............. 12, 41

Pumpelly v. Green Bay Co., 13 Wall. [80 U.S.] 166

Sad eh dd bcdsbendemscsades sadenncesdadenecves: 16

Regional Rail Reorganization Act Cases, 419 U.S. 102

ae hpdens tanneetuneunaeese 12, 33, 34, 41

Richmond Elks Hall Assn. v. Richmond Redev.

Agency, 561 F.2d 1327 (9th Cir. 1977).............. 36

Romesburg v. Fayette County Zoning Hearing Bd.,

727 A.2d 150 (Penn. Comm. Ct. 1999)............. 29

Ruckelshaus v. Monsanto Co., 467 U.S. 986

GIR sic be cend veep pesecccseccededpcccsscs 12, 33, 41

San Diego Gas & Elec. Co. v. City of San Diego, 450

SR Ge GED eccwnncccccesaccesvcessogcecces passim

Schiavone Constr. Co. v. Hackensack Meadowlands

Dev. Commn., 486 A.2d 330 (N.J. 1985) ............ 25

Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573

Ss ME PEG GE Seecceuncseeescoseqcosccescecnce 16

Steel v. Cape Corp., 677 A.2d 634 (Md. App. 1996) .... 25

Suitum v. Tahoe Reg. Plan. Agency, 520 U.S. 725

DEL bdbbedcesasbunchecccapcestvescecncecececs 1, 44

United States v. Causby, 328 U.S. 256 (1946)... 15, 16, 30

Vili

TABLE OF AUTHORITIES - Continued

Page

United States v. Clarke, 445 U.S. 253 (1980)........ 42, 47

United States v. Dickinson, 331 U.S. 745

Docéesésueruenes POYTTTT TTT 9, 16, 20

United States v. Dow, 357 U.S. 17 (1958) ............. 30

United States v. General Motors Corp., 323 U.S. 373

GE v 0cccueden sds ccecuteeee snetuesdes 16, 21, 22, 30

United States v. Peewee Coal Co., 341 U.S. 114 (1951) .... 40

United States v. Petty Motor Co., 327 U.S. 372

TOPE. a cncccnndnevodndavecionvess tessacecs 16, 21, 30

Wheeler v. City of Pleasant Grove, 833 F.2d 267 (11th

Ga CE e ce ncendnsdecenccasces (escecndvorpecenne 18

Williamson County Reg. Plan. Commn. v. Hamilton

Bank, 473 US. 172 (19GB)... cccccccccccesccccsece 37

Winger v. Aires, 89 A.2d 521 (Pa. 1952).............. 35

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

FRPP er ebrccevccccecceruensemncearsngegecsanenees 40

Yuba Goldfields, Inc. v. United States, 723 F.2d 884

BeB, Gan Bas cvsccvceseeccocsads coccctccsesens 20

Yuba Natural Resources, Inc. v. United States, 904

R2d 1577 Ged. Cit, BOGE). 2 ve ccccdecccccvecescccs 39

STATUTES

Cal. Gov. Code § 65858. ........ 6. ccc cece cece e eens 26

Cah, Gam, Gay. © Gare c cn ccccccecccesceccanstences 28

TABLE OF AUTHORITIES - Continued

Texts

Annot., Zoning: Construction and Effect of Statute

oe t Zoning Application Be Treated As

Approved If Not Acted On Within Specified Period

Of Time, 66 A.L.R.4th 1012.............c.ec0 00.

APA, The Growing Smart Legislative Guidebook

(2001) (reproduced in ALI-ABA, Land Use Insti-

tute Study Materials 133 [Aug. 16-18, 2001]) ...

Am. Jur. 2d, Property § 3 (1997) .............500

Bauman, Gus, The Supreme Court, Inverse Condem-

nation and the Fifth Amendment: Justice Brennan

Confronts the Inevitable in Land Use Controls, 15

CRUISED Cae TD (Ieee: ccc cccccccveccccccecccccss

Beuscher, Joseph, Notes on the Integration of Police

Power and Eminent Domain by the Courts: Inverse

Condemnation, in J. Beuscher & R. Wright, Land

EE = poten cachet daaddeaussaek see's

Eagle, Steven J., Just Compensation For Permanent

akings of Temporal Interests, 10 Fed. Cir. B.J. 485

PE ce ese ve recvecduoveseocedeedbcescccesees

Eagle, Steven J., Temporary Regulatory Takings and

evelopment Moratoria: The Murky View From

Lake Tahoe, 31 Envtl. L. Rep. 10224 (2001)......

Epstein, Richard, Takings: Private Property and

the Power of Eminent Domain (1986)..........

Haar, Charles M. & Kayden, Jerold S., Landmark

SE GIES bBo 6 SaN0bOCCocécucccvecioccccces

Kayden, Jerold S., Old Wine in New Bottles, 46

Land Use Law & Zoning Digest, no. 9, p. 9

RE eA

Page

TABLE OF AUTHORITIES - Continued

Page

Larsen, Wendy U. & Larsen, Marcella, Moratoria as

Takings Under Lucas, 46 Land Use Law & Zon-

ing Dig., no. 6 (1994)..... 6... cece e eee ees 29, 37, 46

Mandelker, Daniel R., Gerard, Jules B. & Sullivan,

E. Thomas, Federal Land Use Law (rev.

BD os knkccnccnceadeccecetasedsconpannsé sand 26, 45

Merriam, Dwight H. & Buck, Gurdon H., Smart

Growth, Dumb Takings, 29 Environmental Law

Rptr. 10746 (Dec. 1999) ....... 6 cece cece e ene 1

Nichols on Eminent Domain (rev. 3d ed. 2001)...... 33

Pollot, Mark L., Grand Theft and Petit Larceny:

Property Rights in America (1993) ................ 37

Power, Garrett, Multiple Permits, Temporary Tak-

ings, and Just Compensation, 23 Urban Lawyer

GE SSE csc ccccvesecnccnceessssceengenesanceses 38

Tribe, Laurence, American Constitutional Law (2d

OO, FG c.u6 ce dab n cektis rep se censddevecnnteds 19

Walter, Appraisal Methods and Regulatory Takings:

New Directions For Appraisers, Judges, and Econo-

mists, 63 Appraisal J. 331 (1995) .................. 17

Young, Anderson’s American Law of Zoning (4th

OB, WHGED < cccdbccsecescnsceccsccessececesccntecees 28

Ziegler, Edward, Rathkopf’s The Law of Zoning &

Planning (4th ed., rev. 2001)...............545. 13, 28

Zizka, Michael A., et al., State & Local Govern-

ment Land Use Liability (rev. 2000)......... 5, 29, 46

PREFACE

Seventeen years ago, some 700 owners of individual,

single-family lots in the Lake Tahoe Basin in California

and Nevada filed suit, seeking redress for what had, until

then, been a three year “temporary” ban on making any

productive use of their land. They sued when that freeze

mutated into a permanent taking of their land.!

Petitioners are not developers. They are individuals

who purchased their lots in order to build homes on them

—- as was then permitted by prevailing zoning and land

use regulations. Now, all they can do is look at and walk

on “their” land (although the trial judge noted that, as

written, TRPA’s rules preclude at least some of these

landowners from even walking on their own property

without first getting a government permit [Pet. App., p.

73]). All other rights - except the “right” to pay taxes -

have been de facto taken.

Thus, one point must be plainly stated up front: the

purported “temporary” planning “moratorium” was nothing

of the sort; it never allowed any use and it never ended.?

1 This Court examined the fat e Lake Tahoe

landowner in Suitum v. Tahoe Reg. Plan. Agency [TRPA], 520 U.S.

725 (1997), and may recall the utter prohibition on economically

productive or beneficial use imposed on landowners in so-

called “high hazard” areas under TRPA’s 1987 Plan. For earlier

litigation, see Lake Country Estates v. Tahoe Reg. Plan. Agency, 440

U.S. 391 (1979), in which the Court (through Justice Stevens)

held that TRPA could be liable for regulatory takings under 42

U.S.C. § 1983 if its land use policies were too restrictive.

2 A moratorium is “an authorized delay in... development

approval.” (Dwight H. Merriam & Gurdon H. Buck, Smart

Growth, Dumb Takings, 29 Environmental Law Rptr. 10746, 10756

[Dec. 1999] [noting that legitimate planning moratoria

specifically identify their objectives, are as short as possible,

and encourage reasonable interim use of the affected property

in order to guard against invalidation or awards of

compensation].)

Whatever else one may say about it - and the Court can

expect the Tahoe Regional Planning Agency (TRPA) and

its amici curiae to say a good deal — these landowners did

not file suit until after the so-called “temporary” freeze

had become permanent with the adoption of TRPA’s 1984

Plan, leaving them with no allowable land uses since

1981. At that point, they sought compensation for both

past and future takings of their right to use their home-

sites.

STATEMENT OF THE CASE

The Petitioners - some 400 owners of individual,

lawfully subdivided, single-family residential lots around

Lake Tahoe - are mostly married couples who bought

their lots years ago for individual retirement, vacation, or

permanent homes for themselves and their families.* The

lots were all located in partially developed residential

neighborhoods with paved roads, utility service, and

homes built on many of the neighboring lots. All of the

landowners bought their lots many years before the regu-

lations challenged here were even being considered.

Their expectation to use their land the same as their

neighbors was thus as real as it was reasonable. (Com-

pare Lucas v. South Carolina Coastal Council, 505 U.S. 1003

[1992] [taking occurred when new regulations prevented

buyer of last two undeveloped lots in a subdivision from

building].)

However, for the past two decades TRPA has pre-

vented Petitioners from building their homes (or any-

thing else) by a series of rolling prohibitions. There were

four formal prohibitions, interspersed with informal ones

to bridge some gaps, the upshot of which has been a total

prohibition of any use since 1981.

* The 700 original plaintiffs have seen their numbers

eroded by the passage of time in this Dickensian litigation.

Some have died. Others have simply become exhausted.

Lake Tahoe is a unique treasure. That, as the District

Court observed, is why people want to build homes near

it. (Pet. App., p. 65.) However, in the 1950s and 1960s, its

trademark clarity began to lose its luster. Construction of

infrastructure (e.g., roads and general grading) for local

development was increasing the runoff of dirt and nutri-

ents into the lake, thus increasing the growth of algae and

clouding the water. (Pet. App., pp. 62-65.) The solution,

curbing development, was obvious and, in 1969, Califor-

nia and Nevada (with the concurrence of Congress and

the President) created TRPA to unify land use planning

and control in the 501 square mile, bi-state, Lake Tahoe

Basin. The problem which has brought this case here is

not the regulatory ends, but rather the unconstitutional

means employed by TRPA.

TRPA’s early planning divided the land into different

zones, depending on its steepness, geology, water absorp-

tion, etc. Four zones, zones 1 through 3 and SEZ (stream

environment zone), were classed as “high hazard” areas,

i.e., hazardous to the continued clarity of the lake, and ©

development there was restricted, although not prohib-

ited.

During the 1970s, the lake’s clarity continued to dete-

riorate and the two states had differing views on how to

govern the area. After much heated negotiation, the legis-

latures and governors of California and Nevada, as well

as the Congress and President of the United States,

agreed on amendments to the interstate compact that

created TRPA. (JA 83 is the Compact as amended.)

The tripartite legislative negotiation that resulted in

the new Tahoe Compact (effective Dec. 19, 1980) called

for a slowdown of development, but not a halt, while

TRPA was scheduled to spend the next 18 months devis-

ing environmental threshold carrying capacities for the

region and then another year amending its plan to main-

tain those capacities. Although the Compact recites the

necessity “to halt temporarily works of development in

the region which might otherwise absorb the entire

capacity of the region for further development or direct it

out of harmony with the ultimate plan” (JA 105) during

that planning period, it only imposed a cap on the

number of residential permits that could be issued, not an

outright ban on development. And the restriction ham-

mered out in these legislative negotiations was quite

specific. For 1980, 1981, and 1982, the Compact limited

building permits in each of the cities and counties in the

region to the number of building permits each of those

entities had issued in 1978, and it listed the precise

number allotted to each (JA 106).

But TRPA’s first acts in early 1981 went beyond the

legislatively negotiated building slowdown. Way beyond.

Rather than implement that slowdown, it commanded a

freeze. In Ordinance 81-5 (i.e., the fifth ordinance adopted

in 1981, and one of the first matters actually considered)

TRPA, under the guise of amending its Water Quality

Plan, precluded virtually all development in zones 1, 2, 3,

and SEZ (i.e., the land involved in this case). At the same

time, TRPA candidly asked Congress and the legislatures

of California and Nevada to appropriate funds to buy the

affected land to alleviate the “hardship” it knew it was

inflicting on landowners like those at bench, whose prop-

erties were thus de facto taken. (See JA 126.)

Ordinance 81-5 was not a “planning” or “time out”

moratorium of the kind sometimes used by planning

4 In simpler terms, TRPA was to determine the kind and

intensity of development that could be tolerated consistent with

maintaining the region’s significant scenic, recreational, and

natural resource values.

agencies to provide needed breathing space.5 Although

dubbed “temporary,” it was nothing of the sort; it was

actually a substantive regulation, rather than a pro-

cedural, planning device, and it made a dramatic change

in TRPA’s land use plan. Where that plan originally

viewed the land development zones in bulk (concluding,

for example, that land coverage in zone 1 throughout the

basin should total 1%), Ordinance 81-5 transferred that

limitation to each lot in the area, prohibiting development

of more than 1% of any individual lot in zones 1 and 2,

with 5% in zone 3 and zero in SEZ (see JA 169), rendering

the lots unusable. One percent coverage on a typical

10,000 square foot lot in these subdivisions would yield

only 100 square feet for Cpe - barely a tool shed,

surely not a home.

Thus, in reality, Ordinance 81-5 was the first in an

unremitting series of consecutive, back-to-back prohibi-

tions. Ostensibly, that initial moratorium was to remain in

effect until TRPA adopted amendments to the Regional

Plan. A year later, on Aug. 26, 1982, TRPA established

environmental threshold carrying capacities which would

5 The American Planning Association has identified two

bases for planning moratoria. The first is to aid the preparation

of a comprehensive plan by precluding developers from

obtaining permits that conflict with the plan being drafted. The

other is to provide time to construct needed infrastructure.

(APA, The Growing Smart Legislative Guidebook [2001]

[reproduced in ALI-ABA, Land Use Institute Study Materials

133 [Aug. 16-18, 2001].) Neither describes what happened at

bench. As a recent text explains:

“The proper role of a moratorium is as a stop-

gap, temporary, emergency measure. . . . Moratoria

measures, whatever the type, should not be used as

growth control tools or regulatory measures in and of

themselves.” (Michael A. Zizka, et al., State & Local

Government Land Use Liability § 4:4, P. 4-3 [rev.

2000.)

determine the maximum capacity for development of

each lot in the area. The Compact required TRPA to

complete its work on the Regional Plan within one year

of that date. As time passed, TRPA recognized it would

not meet that goal, and so, a year later, on Aug. 26, 1983,

it adopted Resolution 83-21 (a 90-day temporary mor-

atorium) suspending all permitting activities pending

completion of the new Regional Plan. (Pet. App., p. 170.)

But that additional 90-day moratorium was not

enough, and TRPA informally allowed it to keep rolling

from Nov. 26, 1983 until April 26, 1984, when it finally

adopted a new Regional Plan. (Pet. App., p. 75.)® The

1984 Plan (Ordinance 84-1; Pet. App., p. 172) made no

change in the use prohibition inflicted on these land-

owners. As the trial court put it, “[w]Jith respect to Class

1-3 and SEZ properties . . . nothing much changed. The

1984 Plan provided, at least temporarily, that no projects

proposing any land coverage at all in Class 1-3 and SEZ

would be considered. ... ” (Pet. App., pp. 75-76;

emphasis, the court’s.)?7 Thus, whatever development it

appeared to permit elsewhere in the Tahoe Basin, all of the

homesites in this litigation remained untouchable.

The State of California (TRPA’s staunch ally and

defender in this case) sued TRPA when the 1984 Plan was

6 The informal extension came about when TRPA’s staff

realized that the formal moratorium would expire before the

new regional plan was completed. Staff told the TRPA Board

that it would simply not process any applications unless the

Board directed it to do otherwise. (JA 130.) The Board never

responded (RT 303), and thus an unauthorized moratorium

bridged the gap and continued the ban on all use.

7 As the 1984 Plan put it: “Development within land

capability district 1-3 is not consistent with the goals to manage

high hazard lands for their natural qualities and shall generally

be prohibited. ... ” (Pet. App., p. 173.) “SEZ lands shall be

protected and managed for their natural values.” (Pet. App., p.

174.)

adopted because it felt the parts of the new plan dealing

with other landowners did not comply with the restrictive /

protective demands of the Compact. Shortly thereafter,

Judge Garcia of the Eastern District of California enjoined

TRPA from approving any building projects. That injunc-

tion remained in force until TRPA promulgated another

revised Regional Plan in 1987. (Pet. App., pp. 76-77.)

But the only effect of Judge Garcia's injunction was to

prevent TRPA from allowing those other landowners - not

these Petitioners —- to develop their properties. Had there

been no such injunction, the 1984 Plan would have pre-

cluded all development on Class 1, 2, 3, and SEZ lands

anyway.

For these petitioning landowners, the impact of the

1987 Plan (the one this Court reviewed in the Suitum

litigation) was simply to extend what had gone before.

The use prohibitions that had previously been labeled

“temporary” in Ordinance 81-5 and then became perma-

nent in the 1984 Plan were slightly revised but remained

permanent in the 1987 Plan. Thus, under none of the various

ordinances, resolutions, informal moratoria, or formal plans

TRPA issued beginning in 1981, was there anything economi-

cally beneficial or productive that these landowners could do

with any of their individual homesites. TRPA thus effectively

blocked all construction for the past two decades. The

only thing left for the landowners to do was to continue

holding bare legal title to something that cannot be pro-

ductively used, suffer foreclosure, or sell it at bargain

basement prices to public buyout entities established by

the two states and the federal government for a salvage

operation. In the meantime, property taxes and all other

burdens of property ownership went on.*

8 Because of the impact of TRPA’s rolling use prohibitions,

the majority of the landowners succumbed and were forced to

sell their parcels for a fraction of their fair market value to one

of these scavenging agencies which paid only the bare residual

Procedurally, this case has been a nightmare for the

landowners. They have been in litigation for the better

part of two decades and have nothing to show for it but

the Ninth Circuit’s “thinly disguised contempt” for their

constitutional rights.°

They have been to the Ninth Circuit four times, and

before the District Court on countless occasions.'° In all

those hearings, the lower courts refused to acknowledge

the unified nature of TRPA’s course of action that resulted

in a continuous prohibition of all use from 1981 through

the present. Thus, as shown by the grid prepared by the

Ninth Circuit (Pet. App., p. 11), the lower courts sliced

and diced TRPA’s actions into four pieces and analyzed

each piece as though the others did not exist. Slicing

TRPA’s use prohibitions like so much baloney, the District

Court refused to consider the bulk of the time period

during which all use was prohibited (1984 through the

present) (Pet. App., pp. 107-108, 155) - and then the

Ninth Circuit eliminated the earlier three years (Pet.

App., p- 40).

After a 10-day trial in late 1998, the District Court

found liability for a temporary taking for 1981 through

value of unusable land. The Petitioners seek the difference so

they may be made constitutionally whole, a result similar to the

one upheld by this Court in City of Monterey v. Del Monte Dunes,

526 U.S. 687 (1999).

* TSPC I, 911 F.2d at 1346 (Kozinski, J., dissenting in part).

‘© This began as two separate suits, one filed in California

and one in Nevada (JA 1), pursuant to the venue provisions of

the Compact. After separate District Court rulings resulted in

separate Ninth Circuit opinions, the matters were consolidated

in the Nevada District Court. The earlier Ninth Circuit opinions

(all bearing the same name as the case at bench) appear at: 911

F.2d 1331 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991)

(referred to in the record as TSPC !); 938 F.2d 153 (9th Cir. 1991)

(TSPC II); and 34 F.3d 753 (9th Cir. 1994), cert. denied, 514 U.S.

1036 (1995) (TSPC III).

1984, relying on this Court’s holdings in Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992) for the prop-

osition that a regulation that deprives a landowner of all

economically beneficial or productive use is a compens-

able taking, and First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304 (1987) for the propo-

sition that a temporary taking during a planning mor-

atorium requires compensation the same as a permanent

taking. The District Court denied any compensation for

the impact of the 1984 Plan, asserting that it was Judge

Garcia’s injunction that prevented permits from issuing,

not TRPA’s 1984 Plan. (Pet. App., p. 106.) Finally, the

District Court denied any relief from the 1987 continua-

tion of the use prohibitions on the ground that the statute

of limitations had run by the time the landowners

returned from their first two Ninth Circuit appeals and

amended their complaints to seek compensation for the

effects of the 1987 event.!!

The Ninth Circuit affirmed insofar as the District

Court denied relief, and reversed the limited relief the

District Court had granted. The Ninth Circuit simply

refused to follow this Court’s decision in First English,

1! The court's analysis can hold true only if the 1987 Plan is

viewed as an entirely separate “event,” rather than a

continuation of the use prohibition that TRPA had enforced

since 1981. It also required the lower courts to conclude that the

landowners had a duty to file new suits against TRPA at the

very time they were fighting for their litigational lives pursuing

two Ninth Circuit appeals in an effort to reinstate their initial

suits. Allowing amendment of the complaints once those suits

were finally remanded in 1990 and 1991 would have been

proper under the circumstances, and under United States v.

Dickinson, 341 U.S. 745 (1947) [when a taking occurs through

continuous government action, aggrieved landowners are not

required to resort to piecemeal litigation, and are not barred by

limitations when they sue on the basis of the last, not first,

damaging act]. But the lower courts turned a deaf ear to their

pleas.

which held that a temporary planning moratorium could

be a taking (albeit a temporary one) that requires com-

pensation for the period when use is forbidden.!?

Although both First English and the case at bench

involved temporary planning moratoria in effect for a

finite period of years, the court below asserted that it was

“flatly incorrect” that First English had any impact here.

(Pet. App., p. 29.) Then, viewing each period separately,

the court held that each of the properties retained sub-

stantial value (because the life of property is theoretically

infinite and there could be use left at the end of the

moratorium) and therefore there could be no taking, even

“assum|ing] arguendo [in light of the District Court's find-

ings] that the moratorium prevented all development in

the period during which it was in effect.” (Pet. App., p.

34, fm. 20).

Needless to say, the Ninth Circuit’s reasoning ignores

the fact that, while the “life of the land” may be infinite,

the lives of its mortal human owners are not, and using

this approach simply strips human owners of all they

own and enjoy. But, as Justice Holmes put it, the Just

Compensation Clause of the Constitution “deals with

people, not with tracts of land.” (Boston Chamber of Com-

merce v. Boston, 217 U.S. 189, 195 [1910].) More recently,

this Court reaffirmed this concept by stressing that

“Property does not have rights. People have rights.”

(Lynch v. Household Fin. Co., 405 U.S. 538, 552 [1972].) .

The landowners’ timely Petition for Rehearing and

rehearing en banc were both denied, with five active

Circuit Judges dissenting. (Pet. App., p. 156.) This Court

granted certiorari on June 29, 2001. (JA 192.)

2 The Ninth Circuit’s holding also conflicts with its own

earlier decisions in TSPC I and TSPC II, holding that such a

temporary taking could be found.

SUMMARY OF ARGUMENT

1. Temporary takings, as this Court put it in First

English, are not different in kind from permanent takings.

This Court has consistently held that the Fifth Amend-

ment’s Just Compensation Clause guarantees that any

time the government takes private property for public

use, compensation will be paid. Size doesn’t matter.

(Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419 [1982].) Neither does time. (First English.) Thus, the

core fact at bench is that TRPA’s actions took the right of

user from these landowners. The duration of the taking

only affects the amount of compensation, not the entitle-

ment to compensation.

2. The Ninth Circuit wholly misunderstood this

Court's First English decision. First English involved a

local ordinance designed to prevent all use of property

for a limited period of time. In that context - and this

Court has always said that the factual context of its

holdings is vital to their understanding (e.g., Cohens v.

Virginia, 6 Wheat. [17 U.S.] 264, 399-400 [1821]) — this

Court concluded that temporary takings require just com-

pensation, just like permanent takings.

But the Ninth Circuit asserted that, to be compens-

able, a regulation inflicting a temporary taking must be

intended by its drafters to be permanent but thereafter be

struck down by a court as unconstitutional or otherwise

invalid. In that circumstance, said the Ninth Circuit, a

temporary taking occurs and compensation is mandated.

But, according to that theory (which simply contradicts

First English), if a regulation is consciously designed to

confiscate the right to all use of private property for a

temporary period of time, then no compensation can be

due.

The Ninth Circuit misconstrued First English in mani-

fold ways, ranging from the context of that decision, to

the clear language chosen by this Court, to the: earlier

decisions relied on as authority, to the dissenting opin-

ion’s analysis that the majority rejected. The latter takes

—_—

on added meaning, as the Ninth Circuit adopted almost

verbatim (although without attribution) the language of

the First English dissent. (See Pet. App., pp. 160-161.)

3. A-conscious governmental decision to freeze tem-

porarily all use of property is the functional equivalent of

a conscious governmental decision to condemn tempo-

rarily the use of that property. From the property owners’

perspective, there is no substantive difference. In either

case, they are denied the ability to use their land for a

period of time. From the government's perspective, there

is no substantive difference either. The government elimi-

nates the property owners’ right of use for whatever

period it desires.

But doctrinally, the label does not matter, because in

analyzing cases at the border of police power and emi-

nent domain, this Court has opted for viewing the reality

of each situation and requiring compensation when nec-

essary to vindicate landowners’ rights and to protect the

government’s conscious policy choice from invalidation.

This holds true regardless of the factual context!> or the

government’s motivation. Indeed, the government's

intent to do good (by acting to preserve the environment,

for example) only satisfies the “public use” requirement

of the just compensation clause, and fortifies the need for

compensation when government action infringes on the

rights of landowners protected by the Fifth Amendment.

(E.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171,

1175 (Fed. Cir. 1994].)

3 See, e.g., Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) [cable TV access for apartment tenants];

Kaiser Aetna v. United States, 444 U.S. 164 (1979) [public access to

private marina]; Preseault v. I.C.C., 494 U.S. 1 (1990) [conversion

of railroad easement to recreational trail]; Ruckelshaus v.

Monsanto Co., 467 U.S. 986 (1984) [rodenticide registration];

Dames & Moore v. Regan, 453 U.S. 654 (1981) [curtailment of

private claims following the Iranian hostage crisis]; and the

Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974)

[massive railroad bankruptcies].

THE CONSTITUTION REQUIRES JUST

COMPENSATION FOR ALL TAKINGS, REGARDLESS

OF THEIR LENGTH OR THE MANNER OF THEIR

INSTIGATION. THUS, THE ISSUE IS NOT

WHETHER PROPERTY WAS TAKEN TEMPORARILY,

BUT WHETHER IT WAS TAKEN AT ALL.

The question formulated by this Court is:

“Whether the Court of Appeals properly deter-

mined that a temporary moratorium on land

development does not constitute a taking of

property requiring compensation under the Tak-

ings Clause of the United States Constitution?”

(JA 192; emphasis added.)

The short and plain answer to that question is “No.”

But, with respect, that question — keyed speciiically to the

way that the Ninth Circuit Court of Appeals chose to deal

with this case - may benefit from slight refinement. The

real question is whether the Court of Appeals properly

determined that government action freezing all produc-

tive use of private land does not constitute a taking.

Characterizing TRPA’s action as a “temporary mor-

atorium” tends to obscure the real issue that springs from

the fact that this “moratorium” was not of limited dura-

tion, as moratoria are required to be, nor did it permit

any use of these properties during its existence, as mor-

atoria need to do in order to avoid becoming temporary

takings, nor did it permit any economically viable use of

the regulated land upon its expiration.'* Instead, it was

an outright, permanent ban on all economically rational

use of the Petitioners’ land. The “temporary” nature of

the first 32-month freeze on all land use was illusory

because at the end of the “temporary” moratoria, the

14 Standard texts stress the need for all these factors to be

present. (See, e.g., 1 Edward Ziegler, Rathkopf’s The Law ot

Zoning & Planning § 11.01[3], p. 11-5 [4th ed., rev. 2001}.)

prohibition of all use of Petitioners’ land became perma-

nent. Moreover, the “temporary” nature of the freeze is

constitutionally irrelevant, and could only impact the

amount of compensation due. Justice Brennan put his

finger squarely on the issue, even though he did so

twenty years ahead of schedule:!5

“The fact that a regulatory ‘taking’ may be

temporary, by virtue of the government’s power

to rescind or amend the regulation, does not

make it any less of a constitutional ‘taking.’

Nothing in the Just Compensation Clause sug-

gests that ‘takings’ must be permanent and irre-

vocable. Nor does the temporary reversible

quality of a regulatory ‘taking’ render compen-

sation for the time of the ‘taking’ any less oblig-

atory. This Court more than once has recognized

that temporary reversible ‘takings’ should be

analyzed according to the same constitutional

framework applied to permanent irreversible

‘takings.’ ” (San Diego Gas & Elec. Co. v. City of

San Diego, 450 U.S. 621, 657 [1981] [Brennan, J.,

dissenting on behalf of four Justices, but expres-

sing the substantive views of a majority].'®

'S Intriguingly, Justice Brennan wrote this opinion at the

very time - early 1981 — that TRPA was adopting Ordinance

81-5, the first of the series of rolling moratoria in this case.

Perhaps TRPA should have paid attention.

16 Justice Rehnquist concurred with four other Justices that

the case was not final, but then noted his agreement with Justice

Brennan's group of four on the merits. (450 U.S. at 633

[Rehnquist, J., concurring].) Six years later, in First English

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

(1987), Chief Justice Rehnquist wrote the opinion for a six-

Justice majority that adopted and applied Justice Brennan's San

Diego Gas dissent. First English repeatedly cites Justice

Brennan’s San Diego Gas dissent as authoritative. (482 U.S. at

315; 316, n. 9; 318.)

— ST Ee

This section of the brief will analyze the nature of

takings and show that the concept of “temporary” is

doctrinally and constitutionally beside the point, as the

government always has it within its power to make any

taking “temporary” by returning what it took,’” but that

does not eliminate the need for compensation for the

duration of the taking. The analysis will then focus on

First English and show that the Ninth Circuit failed to

understand either its factual background or its constitu-

tional teaching.

All Takings Require Compensation.

Aside from direct condemnations, there are two

kinds of takings, labeled by the manner of their imposi-

tion. One is caused by direct physical invasion (e.g.,

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

[1982]; United States v. Causby, 328 U.S. 256 [1946]), the

other by regulation (e.g., First English; City of Monterey v.

Del Monte Dunes, 526 U.S. 687 [1999]). But, convenient as

they may be for descriptive purposes, these labels are a

constitutional irrelevancy; either form requires Fifth

Amendment compensation. (Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1015 [1992].)

In his opinion in San Diego Gas, Justice Brennan

expounded what might be called a unified field theory of

takings jurisprudence. His opinion drew upon all sorts of

takings without differentiation to demonstrate the com-

mon constitutional element uniting them all, and stressed

the “essential similarity of regulatory ‘takings’ and other

‘takings.’ ” (450 U.S. at 651.)

17 In Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 12

(1984) the Court explained that the government may, if it

chooses, abandon even a formal condemnation proceeding after

trial.

To illustrate the point, that analysis linked a perma-

nent direct condemnation case!® with flooding cases (both

intended’? and unintended”), a navigable servitude

case,?! an aircraft overflight case,2? a mining regulation

case,2* and temporary direct condemnation cases,4

among others. (450 U.S. at 651-653, 656-660.) In his prag-

matic view, born of a bedrock belief in the Bill of Rights

as the individual’s shield against governmental over-

reaching,?> Justice Brennan viewed all these impositions

on private property Owners as requiring compensation,

and the fact that some of them may have been for tempor-

ary periods of time merely affected the amount of com-

pensation that would be due. (450 U.S. at 658-660.) Later

court decisions agree. See Skip Kirchdorfer, Inc. v. United

States, 6 F.3d 1573, 1583 (Fed. Cir. 1993) [“The limited

duration «f this taking is relevant to the issue of what

compensation is just, and not to the issue of whether a

taking has occurred.”]; Hendler v. United States, 952 F.2d

1364, 1376 (Fed. Cir. 1991) [“[T]he fact that [the govern-

ment’s] action was finite went to the determination of

compensation rather than to the question of whether a

’ taking had occurred”).

18 Berman v. Parker, 348 U.S. 26 (1954).

19 United States v. Dickinson, 331 U.S. 745 (1947).

20 Pumpelly v. Green Bay Co., 13 Wall. [80 U.S.] 166 (1872).

21 Kaiser Aetna v. United States, 444 U.S. 164 (1979).

22 United States v. Causby, 328 U.S. 256 (1946).

23 Peunsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

24 Kimball Laundry Co v. United States, 338 U.S. 1 (1949);

United States v. Petty Motor Co., 327 U.S. 372 (1946); United States

v. General Motors Corp., 323 U.S. 373 (1945).

25 See Charles M. Haar & Jerold S. Kayden, Landmark

Justice 191 (1989).

——— ee *E, .

‘

The genius of this formulation is that it makes the

law clear and relatively straightforward to apply.26 When

little or no damage is done, then landowners will either

not file suit (this type of litigation is neither pleasant nor

inexpensive)?” or recover little or nothing after trial.?6

Legally, however, it recognizes a freeze on use for what it

is: a taking for the duration of the freeze.

The language of the Fifth Amendment is clear and

not to be tampered with. When government action inter-

feres severely with the ability of private property owners

to use their land in an economically viable fashion, then a

taking occurs and compensation must be paid:

“The language of the Fifth Amendment pro-

hibits the ‘tak[ing]’ of private property for ‘pub-

lic use’ without payment of ‘just compensation.’

As soon as private property has been taken,

whether through formal condemnation proceed-

ings, occupancy, physical invasion, or regula-

tion, the landowner has already suffered a

26 That would be a welcome respite from the welter of

criticisms traditionally heaved in the direction of takings law.

For a collection of citations to such scholarly commentary, see

Walter, Appraisal Methods and Regulatory Takings: New Directions

For Appraisers, Judges, and Economists, 63 Appraisal J. 331 (1995).

27 This Court’s own records reveal the lengths to which

such litigation can go. The case at bench, for example, was filed

in 1984, and resulted in four separate trips to the Ninth Circuit

before arriving here. City of Monterey v. Del Monte Dunes, 526

U.S. 687 (1999) began its administrative proceedings in 1981 and

its litigation in 1986 before concluding in 1999. Another

currently active case, A.A. Profiles v. City of Fort Lauderdale, 253

F.3d 576 (11th Cir. 2001), began litigation in 1981 and is still

going. Similarly, Florida Rock Products, Inc. v. United States, 45

Fed. Cl. 21 (1999) was filed in 1982, has resulted in at least five

published opinions, and is on appeal again.

28 As this Court recognized in Kirby, 467 U.S. at 19, fn. 29,

property owners are not likely to litigate unless the harm for

which recompense is sought is substantial.

constitutional violation, and the self-executing

character of the constitutional provision with

respect to compensation is triggered. This Court

has consistently recognized that the just com-

pensation requirement in the Fifth Amendment

is not precatory: once there is a ‘taking,’ com-

pensation must be awarded.” (450 U.S. at 654;

Brennan, J., dissenting; citations and internal

quotation marks omitted; emphasis in original].)

Six years later, when this Court adopted Justice Bren-

nan’s theory as its own in First English, it analyzed and

applied the same mix of takings cases — direct condemna-

tions, along with a variety of physically invasive and

regulatory inverse condemnations, permanent and tem-

porary (482 U.S. at 314-319) - and reached the same

conclusion: all forms of taking require compensation

under the Fifth Amendment. Indeed, this Court empha-

sized the similarity between direct condemnations for

short periods and regulatory takings for similar time

periods, and concluded that the two are “not different in

kind.” (482 U.S. at 318.)

In one of the first lower court applications of First

English, the Eleventh Circuit Court of Appeals concluded

that, “[i]Jn the case of a temporary regulatory taking, the

landowner’s loss takes the form of an injury to the prop-

erty’s potential for producing income or an expected

profit.” (Wheeler v. City of Pleasant Grove, 833 F.2d 267, 271

[11th Cir. 1987].) That is an apt description of what hap-

pened here. Although evidence of individual impacts was

not produced in the liability phase of the trial (see JA 79),

TRPA’s regulations showed plainly that no use was per-

mitted. (Pet. App., pp. 168-174.) Thus those regulations

plainly took the property’s use and potential for what-

ever period of time the Court cares to examine between

1981 (when Ordinance 81-5 was adopted) through the

present (when the intervening “temporary” actions, along

with the semi-permanent 1984 Plan and the actually per-

manent 1987 Plan continued the prohibition on produc-

tive use).

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992) brought it all together.2? That case involved South

Carolina’s effort to protect and preserve its shoreline.

After all but two lots in an exclusive oceanfront residen-

tial subdivision had been built upon, a new law pre-

vented any further construction. This Court held that the

owner of the last two vacant lots was entitled to compen-

sation if the new law precluded all economically benefi-

cial or productive use of his land. (505 U.S. at 1015.) The

Court expressly reaffirmed Justice Brennan’s San Diego

Gas analysis that deprivation of economically productive

use is, from the owner’s viewpoint, the same as taking

physical possession. (505 U.S. at 1017.) On remand, the

South Carolina Supreme Court found a temporary taking

as a matter of law and ordered compensation. (Lucas v.

South Carolina Coastal Council, 424 S.E.2d 484 [S.C. 1992].)

From his vantage point in academia, Professor Tribe

read this case law as meaning that “ . . . forcing someone

to stop doing things with his property — telling him ‘you

can keep it, but you can’t use it’ - is at times indis-

tinguishable, in ordinary terms, from grabbing it and

handing it over to someone else.” (Laurence Tribe, Ameri-

can Constitutional Law § 9-3 at 593 [2d ed. 1988].) Pro-

fessor Epstein, viewing things from the opposite end of

the ideological spectrum, agrees: “What stamps a govern-

ment action as a taking is what it does to the property

rights of each individual who is subject to its actions:

29 Even commentators who argued that Lucas established

nothing new had to concede that it had synthesized and

recompiled much of what had gone before. (E.g., Jerold S.

Kayden, Old Wine in New Bottles, 46 Land Use Law & Zoning

Digest, no. 9, p. 9 [Sept. 1992].)

nothing more or less is relevant.” (Richard Epstein, Tak-

ings: Private Property and the Power of Eminent Domain

94 [1986].) Proceeding from the scholarly to the mundane,

the idea that deprivation of the right to use property is a

serious infringement of ownership may be found in even

the most general of texts:

“ ... if one is deprived of the use of his or her

property, little but a barren title is left in his or

her hands.” (63C Am Jur 2d, Property § 3 at 69

[1997].)

“Barren title” is precisely what TRPA left these Peti-

tioners. When it took everything else - regardless of the

time period - it became obligated to compensate those

whose property was commandeered for the general pub-

lic good.

A Seizure Of The Right To Use Property - Even

Temporarily — Requires Compensation.

The Fifth Amendment's just compensation guarantee

is not concerned with the niceties of legal form, but with

the practical impact of government actions on the owners

of private property. (See United States v. Dickinson,

331 U.S. 745, 748 [1947] [“Constitution is intended to

preserve practical and substantial rights, not to maintain

theories. ...”].) For “the Constitution measures a taking

of property not by what a State says, or by what it

intends, but by what it does.” (Hughes v. Washington, 389

U.S. 290, 298 [1967] [Stewart, J., concurring] [emphasis in

original]; see also Davis v. Newton Coal Co., 267 U.S. 292,

302 [1925] [“The taking was for a public use. The incanta-

tion pronounced at the time is not of controlling impor-

tance; our primary concern is with the accomplish-

ment.”]; Yuba Goldfields, Inc. v. United States, 723 F.2d 884,

889 [Fed. Cir. 1983].)

If a government agency were to condemn property

temporarily for a passive use, as it does regularly (e.g.,

for a scenic easement), no one would seriously suggest

that compensation should not be paid. (See the Court's

discussion in First English, 482 U.S. at 318, applying this

direct condemnation concept to regulatory takings and

showing the applicability to regulatory takings of the

wartime condemnations of temporary use in Kimball

Laundry Co v. United States, 338 U.S. 1 [1949]; United States

v. Petty Motor Co., 327 U.S. 372 [1946]; and United States v.

General Motors Corp., 323 U.S. 373 [1945].) In like vein,

when regulations have the same effect (of denying

owners the use of their land) through the exercise of the

police power, there is no functional difference between

the two modes of government action. (San Diego Gas &

Elec. Co. v. City of San Diego, 450 U.S. 621, 652 [1981]

[Brennan, J., dissenting].) Either way, the owners are

deprived of the use and enjoyment of their land, and it is

that deprivation, not the formal acquisition of title by the

government, that is the mechanism of the taking. (General

Motors, 323 U.S. at 378; Kirby, 467 U.S. 1 at 14; see also

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 244 [1984].)

Justice Brennan's San Diego Gas analysis also showed

that, insofar as the applicability of the Just Compensation

Clause is concerned, there is no constitutional content in

the temporariness of a taking. In essence, he aptly con-

cluded that all takings are temporary, because the govern-

ment can always revoke a regulation or cease a physical

invasion or surrem er possession. (450 U.S. at 657,

659-660.)

In First English, this Court directly faced the question

of whether the length of time made any constitutional

difference. The dissent thought it did. (482 U.S. at 322.)

The majority, however, decided it did not. (482 U.S. at

318.)

Shortly thereafter, the Court of Appeals for the Fed-

eral Circuit explained (through Judge Plager, who spent

his formative years as a property professor) why tempor-

ary takings are, from a jerisprudential standpoint, the

same as permanent takings:

“Part of the difficulty here is the confusion

that arises in the cases and commentaries over

the use of the term ‘temporary taking.’ The

argument in Agins, which was finally laid to -est

in First Lutheran Church, was that a regulatory

taking, unlike a physical taking, is by its nature

‘temporary.’ This is because the government,

upon being told the regulation was overly intru-

sive and therefore a taking (by whatever test),

could rescind or amend the regulation.

“It is equally true, however, that the gov-

ernment when it has taken property by physical

occupation could subsequently decide to return

the property to its owner, or otherwise release

its interest in the property. Yet no one would

argue that that would somehow absolve the

government of its liability for a taking during

the time the property was denied to the prop-

erty owner. All takings are ‘temporary,’ in the

sense that the government can always change its

mind at a later time, and this is true whether the

property interest taken is a possessory estate for

years or a fee simple acquired through condem-

nation, or an easement of use by virtue of a

regulation.” (Hendler v. United States, 952 F.2d

1364, 1376 [Fed. Cir. 1991].)

Decades earlier, this Court had noted the unfairness

that can occur “when the Government does not take [a

property owner's] entire interest, but by the form of its

proceeding chops it into bits, of which it takes only what

it wants, however few or minute and leaves [the property

owner] holding the remainder, which may be altogether

useless to him. .. . ” (United States v. General Motors Corp.,

323 U.S. 373, 382 [1945].) That perfectly describes the

situation at bench, where TRPA chopped off the right to

use each of these lots a slice at a time and left the owners

holding a remainder that was “altogether useless to

[them].”

Thus, the real question is whether a taking has

occurred, and that depends on the impact of the govern-

mental action on the ability of the landowner to make

economically productive use of the land. Justice Holmes

put it quite directly for this Court shortly after the turn of

the last century, saying “the question is, What has the

owner lost?” (Boston Chamber of Commerce v. Boston, 217

U.S. 189, 195 [1910].) As the Federal Circuit Court of

Appeals put it more recently, “[njothing in the language of

the Fifth Amendment compels a court to find a taking only

when the Government divests the total ownership of the

property; the Fifth Amendment prohibits the uncompen-

sated taking of private property without reference to the

owner’s remaining property interests.” (Florida Rock Indus.,

Inc. v. United States, 18 F.3d 1560, 1568 [Fed. Cir. 1994].)

In Lucas, where this Court considered the Fifth

Amendment implications of a South Carolina regulation

that precluded all economically productive use of two

subdivided residential parcels, the Court aptly noted “the

practical equivalence in this setting of negative regulation

and appropriation.” (505 U.S. at 1019.)

Most recently, in City of Monterey v. Del Monte Dunes,

526 U.S. 687 (1999), this Court upheld a jury’s award of

compensation for a temporary taking after a city repeat-

edly denied permission to develop houses on residen-

tially zoned land. Although the Court acknowledged that

it had not provided a “definitive statement of the ele-

ments of a claim for a temporary regulatory taking” (526

U.S. at 704), it upheld a judgment based on jury instruc-

tions drawn from cases dealing with permanent takings.

In this most recent temporary taking case, the Court

thereby reaffirmed the San Diego Gas/First English view

that the essential underlying jurisprudence is the same

for temporary takings as for all others.

This Court has frequently reverted to the property

* “bundle of sticks” analogy in takings cases.

(E.g., Kaiser Aetna v. United States, 444 U.S. 164, 176

[1979].) In Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982), this Court concluded that even a

miniscule physical taking required compensation because

“the government does not simply take a single ‘strand’

from the ‘bundle’ of property rights: it chops through the

bundle, taking a slice of every strand.” (458 U.S. at 435.)

The same is true here. The impact of TRPA’s regulations

has been to freeze the ability of these landowners to

assert any of the ordinary rights of landownership.

Assuming the taking to have been “temporary” (although

the reality is that freezing for two decades —- and counting

- is about as permanent as it gets), that temporary action

similarly “chops through the bundle, taking a slice of

every strand.” There are no strands left for the owners to

enjoy - unless one considers the joy of paying taxes a

beneficial use of the land. (Compare Arverne Bay Con-

struction Co. v. Thatcher, 278 N.Y.2d 222, 232 [1938] [con-

fiscation would at least relieve the owners of their tax

bufdens].)

Thus, whether a taking is permanent or temporary is

really not a valid constitutional distinction, and the Ninth

Circuit erred prejudicially when it sought to carve out a

species of regulatory taking and immunize it from the

constitutional mandate of compensation.

First English Mandates Compensation For The

Impacts Of Deliberate Planning Moratoria

That - By Definition - Take The Right To Make

Economically Productive Use Of Property. The Ninth

Circuit Wholly Misunderstood That.

A primary reason these landowners believe the Ninth

Circuit erred in its decision is that that court wholly

misunderstood First English, and therefore concluded that

it could only find Fifth Amendment liability if a perma-

nent regulation were struck down for some reason. Such

liability, it said, could not apply to a deliberate mor-

atorium designed for a temporary - even though indefi-

nite — lifetime.*° Indeed, the idea conjured up below that

First English can only apply when permanent ordinances

are struck down is belied by First English itself. There,

this Court refused to accept the proposition “that no com-

pensable regulatory taking may occur until a challenged

ordinance has ultimately been held invalid.” (482 U.S. at

320.) In other words, the deliberate — and otherwise valid

- taking of the use of land for a period of years can be a

temporary taking that requires compensation. (482 U.S. at

315.) The remaining errors in the Ninth Circuit's reading

of First English are manifold.*!

First, it is important that First English was about

a temporary planning moratorium. This Court has repeat-

edly said that its holdings cannot be divorced from their

context, and that their true meaning can only be

understood in light of the facts in the underlying case.

3° The Ninth Circuit’s plain error is highlighted by cases

such as Lomarch Corp. v. Mayor of Englewood, 237 A.2d 881 (N.J.

1968) [denial of all use of land for one year is a taking and is

tantamount to the purchase of an option on the land]; Steel v.

Cape Corp., 677 A.2d 634 (Md. App. 1996) [moratorium based on

facilities shortage was a taking]; Corn v. City of Lauderdale Lakes,

95 F.3d 1066, 1073 (11th Cir. 1996) [one-year building permit

moratorium could be a temporary taking]; Schiavone Constr. Co.

v. Hackensack Meadowlands Dev. Commn., 486 A.2d 330 (N.J. 1985)

{19 month moratorium could be a temporary taking]; Eastern

Minerals Int'l, Inc. v. United States, 36 Fed. Cl. 541 (1996) [failure

to timely review mining permit application was a compensable

taking); Keshbro, Inc. v. City of Miami, __ So.2d __, 2001 WL

776555 (Fla. 2001) (closure of apartment complex for one year

was a temporary taking].

31 One respected commentator put it bluntly, saying the

Ninth Circuit’s “analysis is inconsistent with First English.”

(Steven J. Eagle, Temporary Regulatory Takings and Development

Moratoria: The Murky View From Lake Tahoe, 31 Envtl. L. Rep.

10224 [2001].)

(E.g., Cohens v. Virginia, 6 Wheat. [17 U.S.] 264, 399-400

{1821].)

Lost in the Ninth Circuit’s conclusion that First

English only applies to regulations intended to be perma-

nent but struck down as illegal is the plain fact that the

only thing before this Court in First English was the constitu-

tional consequence of an ordinance that was designed to be in

effect for a limited period of time. Rather than allowing the

First English Evangelical Lutheran Church to simply

rebuild the camping facility that it lost in a storm, Los

Angeles County enacted a moratorium which, under Cal-

ifornia law, could not exceed two years. (See Cal. Gov. Code

§ 65858.) Thus, the temporary use prohibition was always

intended to be of finite duration, and everyone knew the

maximum length it could be. The Ninth Circuit simply

ignored that.52

The error in the Ninth Circuit’s view is apparent

from this Court’s recent decision in City of Monterey v. Del

Monte Dunes, 526 U.S. 687 (1999). The landowner claimed

that the city had taken its property through a series of

subdivision denials because that action temporarily took

all economically productive use, and also because the

city’s reasons failed to substantially advance a legitimate

state interest. No city action was ever struck down or invali-

dated. The jury simply awarded compensation for the

temporary taking caused by that delay, and this Court

affirmed.

32 Others understand that First English involved a

moratorium, rather than a truncated permanent restriction.

(E.g., Daniel R. Mandelker, Jules B. Gerard & E. Thomas

Sullivan, Federal Land Use Law § 2A.05[2J[c], p. 2A-64 [rev.

2001}.) '

33 The Ninth Circuit’s analysis also ignores the Agins

litigation that preceded First English, and on which the latter

was based. In Agins v. City of Tiburon, 24 Cal.3d 266, 598 P.2d 25

(1979), aff'd on other grounds, 447 U.S. 255 (1980), the California

Supreme Court held that compensation was not available as a

Second, given the finite length of the First English

moratorium, it would seem inescapable that this Court

intended its decision to apply to planning moratoria that

were designed to be in effect for only a limited period of

time. Knowing that the suit dealt only with the two year

planning moratorium (rather than the permanent development

ban that replaced it) (482 U.S. at 313, fn. 7), the Court said

it was dealing with a use prohibition that lasted for “a

considerable period of years” (482 U.S. at 322).54 And the

Court noted that, in that context, deprivation of use was

the equivalent of condemning a leasehold interest in the

property for that period of time, an interest that “may be

great indeed.” (482 U.S. at 319.)%5

Third, this Court contrasted that “considerable

period” of deliberate use prohibition with the “normal

remedy for a regulatory taking. Thus, as this Court

acknowledged, the landowner’s claims in First English “were

deemed irrelevant [by the California Court of Appeal] solely

because of the California Supreme Court's decision in Agins that

damages are unavailable to redress a ‘temporary’ regulatory

taking.” (First English, 482 U.S. at 312.) The challenge in Agins,

like those in First English and in the case at bench, was not

directed at a “permanent” regulation rendered “temporary”

because a court struck it down. Dr. and Mrs. Agins complained

about the impact of the city’s protracted study of its options to

condemn the property for a public park, and its subsequent

downzoning. The study period was plainly temporary, and the

downzoning was never struck down.

4 The Court was expressly aware that the “temporary”

ordinance was adopted in 1979 (482 U.S. at 307) and replaced by

a “permanent” ordinance in 1981 (482 U.S. at 313, fn. 7).

35 In property terms, what is taken is “an estate for years,

that is, a term of finite duration as distinct from the infinite term

of an estate in fee simple absolute. (While called an estate for

years, the term can be for less than a year.)” (Hendler, 952 F.2d at

1376.) See also Steven J. Eagle, Just Compensation For Permanent

Takings of Temporal Interests, 10 Fed. Cir. B.J. 485, 502 (2000): “The

term ‘taking of a leasehold interest’ expresses the relationship best.”

duiays in obtaining building permits, changes in zoning

ordinances, variances, and the like. .. . ” (482 U.S. at 321.)

Although the Court went no further in explicating “nor-

mal delays” in the land use approval process, the care-

fully chosen illustrations would seem to have no impact

at bench. Each of them illustrates a process in which a

landowner is participating with the expectation —- or at

least the possibility - of obtaining development permis-

sion at the conclusion.

But the situation must be otherwise where the regula-

tion is a total development freeze, and particularly where

the freeze is in the context at bench, where TRPA has

always thought that the only way for it to accomplish its

task of protecting Lake Tahoe was to prevent all develop-

ment on the lots that are now before this Court. TRPA has

characterized these lots as presenting a “high hazard” to

the lake’s environmental recovery and preservation. Pro-

hibition cannot by any stretch be considered an exemplar

of “normal delay” for landowners working their way

through ‘he planning process.*

3% «reover, it would seem that such “normal” delays

wou’ ve less than the two years in First English, as that one had

+ 4: described as “considerable.” There is also legislative

guidance as to “normal” planning parameters. Such expressions

are found in so-called permit streamlining acts which appear in

many states. Such statutes “deem” projects approved by

operation of law if applications are not acted on in a specified

period of time. (See generally 5 Ziegler, Rathkopf’s The Law of

Zoning and Planning § 66.04 [4th ed. 2001]; 4 Young, Anderson’s

American Law of Zoning, Subdivision Controls, § 25.16 [4th ed.

1996].) Such statutes were enacted to provide disincentives to

governmental sloth. (See generally Annot., Zoning: Construction

and Effect of Statute Requiring That Zoning Application Be Treated

As Approved If Not Acted On Within Specified Period Of Time, 66

A.L.R.4th 1012, 1023.)

While California grants government agencies a leisurely

year to review projects (Cal. Gov. Code § 65950), the norm

elsewhere is thirty to sixty days. For discussion and application

“Delays associated with, for example, studies

preceding the adoption of rezonings or new

comprehensive plans are not a normal delay

referenced by the Court in First English.”

(Wendy U. Larsen & Marcella Larsen, Moratoria

as Takings Under Lucas, 46 Land Use Law &

Zoning Dig., no. 6, p. 3 at 5 [1994].)97

Fourth, in finally deciding the remedy question that

had dogged the Court for the better part of a decade (see

First English, 482 U.S. at 310-311), the Court obviously

believed that a planning moratorium could require Fifth

Amendment compensation. Otherwise, why pick that

vehicle (i.e., a case involving an avowedly temporary

denial of use) to decide the remedy question? Surely, the

Court would not have addressed the issue in First English

if it believed that the underlying substantive claim could

not result in a 5th Amendment taking as a matter of law.**

But it did not.

of representative statutes, see, e.g., American Tower, L.P. v. City of

Grant, 621 N.W.2d 37 (Minn. App. 2001) [60 days]; Gunthner v.

Planning Board, 762 A.2d 710 (N.J.S. 2000) [45 days]; Romesburg v.

Fayette County Zoning Hearing Bd., 727 A.2d 150 (Penn. Comm.

Ct. 1999) [45 days]; City of Birmingham Planning Commn. v.

Johnson Realty Co., Inc., 688 So. 2d 871 (Ala. App. 1997) [45 days];

Pope v. De Poala, 574 N.Y.S.2d 869 (1991) [30 days]; Marandino v.

Planning & Zoning Commn., 573 A.2d 768 (Conn. App. 1990) [65

days]. It would seem appropriate to utilize such statutes as

guidelines for what is “normal” in the planning process, as they

contain legislative determinations about how long the planning

approval process ought to take.

37 To the same effect: Michael A. Zizka, et al., State & Local

Government Land Use Liability § 4:4, p. 4-10 [rev. 2000].)

38 Counsel for the County had urged the Court in First

English to decide that there was no taking, and therefore not

decide the remedy issue (Transcript of oral argument, pp. 36-37;

482 U.S. at 312-313), so it cannot be said that the option escaped

unnoticed. Nor could it be said that the Court was unaware of

this option, as it had employed it in San Diego Gas (450 U.S. at 633).

Fifth, the cases on which the Court chiefly relied in

First English to establish the right to recover for a tempor-

ary regulatory taking were direct condemnation cases in

which the government condemned the right to use prop-

erty for a finite period of years. The time periods

involved were all about one year, with options to renew.

(United States v. General Motors Corp., 323 U.S. 373,

374-375 [1945]; United States v. Petty Motor Co., 327 U.S.

372, 374 [1946]; Kimball Laundry Co. v. United States, 338

U.S. 1, 3 [1949].)99 The Court also relied on United States v.

Dow, 357 U.S. 17, 26 (1958), which concluded that govern-

mental abandonment of a direct condemnation merely

“results in an alteration in the property interest taken -

from [one of] full ownership to one of temporary use and

occupation [citing the three wartime temporary condem-

nations cited above for how to value that ‘alteration’ in

the property estate taken].”

That is what the Court evidently contemplated in

First English when it discussed temporary takings. That is

the kind of time element the Court envisioned when it

noted, with dry understatement, that “(t]he United States

has been required to pay compensation for leasehold

interests of shorter duration than this [i.e., the period of

non-use inflicted on the church].” (482 U.S. at 319.) It thus

seems clear that that is what the Court had in mind when

it said that “[t]hese [direct condemnation] cases reflect

the fact that ‘temporary’ takings which, as here, deny a

39 Petty Motor was a three-year lease, but it was terminable

at the Government's option on each one-year anniversary. See

also United States v. Causby, 328 U.S. 256 (1946), in which the

Government had leased an airport for one year, with options to

renew until the end of the war. This Court agreed that

overflights from the airport took flight easements over

neighboring property, but remanded the matter for the trial

court to determine whether they were permanent or temporary

and to award compensation accordingly. Thus, the time of the

inverse taking was keyed to the temporary nature of the lease

by which the United States occupied the facility.

landowner all use of his property, are not different in

kind from permanent takings, for which the Constitution

clearly requires compensation.” (482 U.S. at 318.)

Sixth, the issue of what the Ninth Circuit called “tem-

poral severance” (Pet. App., p. 21) is not really an issue at

all. Or, if it had been an issue, it was resolved by First

English. As noted earlier, the idea of dealing with prop-

erty interests of finite duration is something that the law

has done since time immemorial. Leasehold estates have

long been known, as have temporary tenancies at suf-

ferance. The temporary taking of part of a leasehold

requires compensation. (Bass Enters. Prod. Co. v. United

States, 133 F.3d 893 [Fed. Cir. 1998], on remand 45 Fed. Cl.

120 [1999].) Direct condemnations for periods shorter

than those involved at bench have also been routinely

dealt with.*° Thus, after it cleared away the procedural

underbrush that had prevented it from reaching the com-

pensation issue earlier in the decade, this Court framed

the issue clearly:

“We now turn to the question whether the Just

Compensation Clause requires the government

to pay for “temporary” regulatory takings.” (482

U.S. at 313.)

Whether the taking of such a time-limited interest

could constitutionally require compensation was a sub-

stantial point of disagreement between the First English

4 As the Federal Circuit Court of Appeals put it:

“Identification of a specific property interest to

be transferred to the Government should pose little

problem for property lawyers. Property interests are

about as diverse as the human mind can conceive.

Property interests may be real and personal, tangible

and intangible, possessory and nonpossessory. They

can be defined in terms of sequential rights to

possession (present interests — life estates and various

types of fees - and future interests), and in terms of

shared interests. ... ” (Florida Rock, 18 F.3d at 1572, fn.

32.)

majority and dissent. The dissent said it could not. The

majority said it could. The Ninth Circuit disregarded the

majority and applied the dissent. (See Pet. App., p. 160.)

In sum, the decision in First English dealt with pre-

cisely the kind of regulation as the one held up for

examination by the Ninth Circuit at bench. Regardless of

some of the other discussion in the opinion, the decision

in First English was rendered in the context of a two-year

planning moratorium that had long since expired by its

own terms by the time this Court analyzed it. It is thus a

patently false premise to say that First English only

applies to regulations intended to be permanent but

struck down for some constitutional defect. The mor-

atorium involved there was never struck down; it was

always intended to last for a maximum of two years -

and did.

FROM A LANDOWNER’S POINT OF VIEW,

GOVERNMENT IMPOSITION OF A FREEZE ON ALL

ECONOMICALLY PRODUCTIVE USES, ALBEIT

TEMPORARILY, IS THE EQUIVALENT OF A

TEMPORARY CONDEMNATION OF SUCH LAND. IN

EITHER EVENT, THE RIGHTFUL OWNER’S USE

OF THE LAND HAS BEEN TAKEN, AND JUST

COMPENSATION IS DUE.*!

This case involves TRPA’s deliberate legislative deci-

sion to forbid the use of the Petitioners’ single-family,

subdivided lots for the greater good of the Tahoe Basin in

particular and the American public in general. In practi-

cal terms, that studied and thoughtful action was no

41 “From the property owner’s point of view, it may matter

little whether his land is condemned or . . . whether it is

restricted by regulation to use in its natural state, if the

effect . . . is to deprive him of all beneficial use of it.” (San Diego

Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 652 [1981]

[Brennan, J., dissenting].)

different than a decision to condemn the right to use that

same land - either for a period of years or forever. This

section of the brief demonstrates the legal equivalence of

such actions and the consequent necessity for compensa-

tion to legitimize the freeze under the Fifth Amendment.

“Eminent Domain” And “Police Power” Are Really

Two Sides Of The Same Coin.

As one commentator put it, Justice Holmes’ Pennsyl-

vania Coal opinion demonstrated that the eminent domain

power and the police power “were really two ends of a

continuum that can be called ‘governmental power.’ ”

(Gus Bauman, The Supreme Court, Inverse Condemnation

and the Fifth Amendment: Justice Brennan Confronts the Inev-

itable in Land Use Controls, 15 Rutgers L.J. 15, 38 [1983].)42

Others viewed Justice Brennan’s San Diego Gas dissent as

an updating of Justice Holmes’ theory:

"Stripping away empty formalisms, [Justice

Brennan]. . . introduced the pragmatic notion of

a ‘de facto exercise of the power of eminent

domain,’ sensibly suggesting that an over-

zealous exercise of the police power may con-

currently be an exercise of the eminent domain

power.” (Charles M. Haar & Jerold S. Kayden,

Landmark Justice 41 [1989].)

As if to illustrate the point, this Court has repeatedly

invoked the just compensation provision of eminent

domain to validate police power actions that —- without

compensation — would be unconstitutional. (See, e.g.,

Regional Rail Reorganization Act Cases, 419 U.S. 102, 134

[1974]; Dames & Moore v. Regan, 453 U.S. 654, 689 [1981];

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013 [1984].)

42 See also 1 Nichols on Eminent Domain, § 1.42[7], p. 1-269

(rev. 3d ed. 2001): “[T]he police power is but another name for

the power of government.”

These cases build on the hornbook proposition that, when

examining a legislative enactment for constitutionality,

that construction should be applied that renders the

enactment constitutional, rather than void. (Fletcher v.

Peck, 6 Cranch [10 U.S.] 87, 128 [1810]; Regional Rail, 419

U.S. at 134.)

This Court’s solution has been to require eminent

domain compensation to validate legislative exercises of

the police power that impaired private property rights.

(See Hurley v. Kincaid, 285 U.S. 95 [1932].) When, for

example, Congress decided to establish the Point Reyes

National Seashore in northern California, it provided no

timetable for the acquisition and seemed in no hurry to

appropriate money for that purpose, even as landowners

in the area were being abused by questionable govern-

ment tactics. The U.S. Court of Claims allowed an inverse

condemnation action, a process of which it said Congress

was aware, and that “was available in case the conver-

gent pressures on any landowner became great beyond

its expectation,” a process that had “saved the day in

many another sticky situation.” (Drakes Bay Land Co. v.

United States, 424 F.2d 574 [Ct. Cl. 1970].) Just so.

That solution properly defers to legislative bodies on

matters of policy. Here, for example, TRPA made a policy

decision that it was necessary to prevent private use of

residentially-zoned and subdivided - but not yet devel-

oped - land. Rather than interfere with that policy by

enjoining it or overturning it at the instance of some of

the impacted landowners, the proper judicial role is to

ensure fairness to the landowners by mandating compen-

sation for the period of the freeze. That way, the govern-

ment gets what its policy makers ordered, but the cost is

spread among those that benefit. (See Armstrong v. United

States, 364 U.S. 40, 49 [1960].)

In similar fashion, when examining the validity of

eminent domain actions, this Court has held that the

determination of whether property is taken for a “public

use” involves “what traditionally has been known as the

police power.” (Berman v. Parker, 348 U.S. 26, 32 {1954].)

This Court’s blending of the concepts in order to validate

each of them demonstrates the wisdom of Professor

Beuscher, who noted several decades ago that “those

writers who emphasize the separate air tight, non-

overlapping character of the two basic powers - police

power and eminent domain - have been too glib.” (Jos-

eph Beuscher, Notes on the Integration of Police Power and

Eminent Domain by the Courts: Inverse Condemnation, in J.

Beuscher & R. Wright, Land Use 724 [1969].)*

Thirty years after Berman, the Court reaffirmed its

conclusion when determining whether the Hawaii legis-

lature could authorize the use of the eminent domain

power to end a land oligopoly. Most of the private land in

Hawaii was owned by a few large estates that leased

residential lots to tenants who then built and owned

homes on those lots. The Hawaii legislature decided to

use the power of eminent domain to condemn the under-

lying fee title and transfer it to the tenants. The question

was whether that was a “public use” that could satisfy

the constitutional limitation on the use of this “most

awesome power”* of government. Speaking for a unani-

mous eight-Justice Court, Justice O’Connor concluded

that in eminent domain law:

“The ‘public use’ requirement is thus coter-

minous with the scope of a sovereign’s police

powers.” (Hawaii Housing Auth. v. Midkiff, 467

U.S. 229, 240 [1984].)

With that simple declarative sentence, the Court uni-

fied the juridical underpinnings of the eminent domain

power and the police power, and laid the groundwork for

#3 See also Bauman, supra, 15 Rutgers L.J. at 53: “ .. . as the

‘police power’ is adapted to more and increasingly complex

applications, the police power/eminent domain dichotomy

becomes less useful and more anachronistic.” (Collecting

citations to numerous commeéntators who share that view.)

“ See City of Oakland v. Oakland Raiders, 174 Cal.App.3d

414, 419, 220 Cal.Rptr. 153 (1985); Winger v. Aires, 89 A.2d 521,

522 (Pa. 1952).

the answer to the question at bench. When a legislative

body exercises its discretion to use the eminent domain

power, the deference accorded that decision is well nigh

conclusive. (Hawaii Housing Auth., 467 U.S. at 240-241.)

And that decision automatically invokes the self-

executing command to pay just compensation for what-

ever property is taken in the process. (Berman, 348 U.S. at

36; First English, 482 U.S. at 315; Jacobs v. United States, 290

U.S. 13, 16 [1933].)

In like manner, the conscious decision of a legislative

body to act through an exercise of its police power, by

deliberately blocking the ability of selected landowners to

make any use of their land - for whatever time and

whatever reason - is a decision generally committed to

that body’s discretion. Such 2 conscious decision should

carry with it the same consequence as the conscious

decision to authorize condemnation: compensation for

any private property taken in the process. In other words,

the substantive law of takings turns on the substance of

what the government does and how its actions impact on

the landowner - not on what alternative label the govern-

ment chooses to affix to its action. (See Richmond Elks Hall

Assn. v. Richmond Redev. Agency, 561 F.2d 1327, 1332 [9th

Cir. 1977] [applying Berman to a regulatory taking); City of

Austin v. Teague, 570 S.W.2d 389, 391 [Tex. 1978] [calling

the labels “not helpful” because the two concepts “merge

at so many places”].)

A “Police Power” Freeze On The Use Of Vacant

Land And An “Eminent Domain” Taking Are

Functionally - and Constitutionally - The Same.

In a typical regulatory taking case, a government

agency enacts a regulation that denies landowners the

right to use their land productively. This may be by way

of a down-zoning, or a permit denial, or a variance

denial, or the like. (See, e.g., Penn Central Transp. Co. v.

City of New York, 438 U.S. 104 [1978]; Agins v. City of

Tiburon, 447 U.S. 255 [1980]; San Diego Gas & Elec. Co. v.

City of San Diego, 450 U.S. 621 [1981]; Williamson County

Reg. Plan. Commn. v. Hamilton Bank, 473 U.S. 172 [1985];

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340

[1986].) But such negative impact is generally not the

raison d'etre of the regulation. Rather, in such cases, the

regulations are primarily designed to readjust the uses of,

and relationships among, lands within the jurisdiction.

Even so, when the impact of such well-intended regula-

tions is so severe that it denies private landowners eco-

nomically productive use of their land, then

compensation must be paid. (Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1015 [1992].)

By contrast, when a government agency enacts a

freeze (or moratorium) on development, the sole purpose

of that action is to foreclose (for either a finite or indefi-

nite period of time) the landowners’ ability to make any

use of their land. The reason behind such a freeze may be

to permit a “time out” in the face of changed conditions

so that the local planners can study the potential uses of

land in the area without having development take place

during their study period, or it could be to delay further

development until public facilities are adequate to serve

it, or it could be to preclude development improperly

under -the guise of a facility shortage. (See, e.g., First

English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 [1987]; Lockary v. Kayfetz, 917 F.2d

1150 [9th Cir. 1990].)

Sometimes moratoria are abused by local agencies,

mouthing the words of planning propriety while intend-

ing all along to simply prevent use forever — or at least as

long as possible.*5 Without any constitutional conse-

quences, such actions will not stop. This is not, of course,

Property Rights in America xviii (1993), describing the City of

Bolinas, California, that used a bogus water moratorium to

prevent development of new homes for decades; Wendy U.

Larsen & Marcella Larsen, Moratoria as Takings Under Lucas, 46

to say that all moratoria are ill motivated. Nonetheless,

without a constitutional counterweight, government

agencies - however motivated - have no reason to apply

an appropriate cost/benefit analysis to their actions. And

that, after all, is the essence of democratic choice: the

people should be able to decide whether they (or their

planning representatives) “need” to impose severe

restrictions so much that they are willing to pay a price

for doing so, rather than fobbing off the cost on those

who happen to own undeveloped property, and telling

them that they - and only they - need to pay this cost as

the price of living in a civilized society.

Notwithstanding the Ninth Circuit's view that such

moratoria are an essential part of the planning process

that should be vigorously protected by the judiciary so

that planning agencies can pursue their actions without

cost to the general public (Pet. App., p. 27), the situation

is jurisprudentially the reverse.

If, a fortiori, under cases like Lucas, compensation is

due even where the government does not intend to deny

productive land use (but the impact of its regulation does

so anyway), the need for compensation should be all the

more apparent when prohibition of use is the sine qua non

of the regulation. The more clearly the government

intends to take the use of the land for a period of time,

the more clear is the need for Fifth Amendment compen-

sation.“ This Court long ago held that private property

Land Use Law & Zoning Dig., no. 6, p. 3 (1994); Garrett Power,

Multiple Permits, Temporary Takings, and Just Compensation, 23

Urban Lawyer 449 (1991) (Prof. Power discusses improper

government tactics in general, and concludes that “Good

economics and good government demand compensation. Time

is money; cost internalization keeps the locals honest.” (Id. at

459.)

# It is clearer still in a case like this, where the “temporary”

freeze on development was replaced by a permanent freeze that

continues to this day. In the typical temporary taking, “the

cannot cavalierly be commandeered without payment

simply “because the public wanted it very much.” (Penn-

sylvania Coal Co. v. Mahon, 260 U.S. 393, 415 [1922].) The

Ninth Circuit’s transmogrification of a moratorium from

a limited-use planning tool, reserved for special occa-

sions, into a boundless government technique for stultify-

ing all reasonable private land uses, trenches on that

basic constitutional doctrine.

Good Government Intentions Do Not Vitiate The Need

For Compensation - In Fact, They Reinforce It.

The Fifth Amendment is not concerned with the pro-

priety or virtue of the regulators’ purpose in freezing the

use of private property, or the exigency of the situation

that gave rise to the perceived need for it. For a proper

exercise of the police or eminent domain power, the

underpinning of such a beneficent purpose must exist;

otherwise the action is ultra vires and void. That much

was plainly settled no later than 1922, when this Court

examined a statute designed to stop land subsidence

caused by underground coal mining and concluded that

the prerequisites for exercise of both police power and

eminent domain were present:

“We assume, of course, that the statute was

passed upon the conviction that an exigency

existed that would warrant it, and we assume

that an exigency exists that would warrant the

exercise of the power of eminent domain. But

the question at bottom is upon whom the loss of

property is returned to the owner when the taking ends... . ”

(Yuba Natural Resources, Inc. v. United States, 904 F.2d 1577, 1580

(Fed. Cir. 1990}.) Here, the property — that is to say the right to

make productive use of the land - has never been “returned” to

its titular owners.

the changes desired should fall.” (Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 416 [1922].)*”

Pennsylvania Coal was merely one in a long line of

decisions in which this Court - speaking from varied

points on its ideological spectrum - patiently, and consis-

tently, explained to regulatory agencies that the general

legal propriety of their actions and the need to pay com-

pensation under the Fifth Amendment present different

questions, and the need for the latter is not obviated by

the virtue of the former. Emphasizing the point, the dis-

senting opinion in Pennsylvania Coal had argued the abso-

lute position that a “restriction imposed to protect the

public health, safety or morals from dangers threatened is

not a taking.” (260 U.S. at 417.) Eight Justices rejected that

proposition. It is apparently necessary to say so yet again.

In Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982), New York’s highest court upheld a statute

as a valid exercise of the police power, and therefore

dismissed an action seeking compensation for a taking.

This Court (through Justice Marshall) put it this way as it

reversed:

“The Court of Appeals determined that § 828

serves [a] legitimate public purpose . . . and thus

is within the State’s police power. We have no

reason to question that determination. It is a

separate question, however, whether an otherwise

valid regulation so frustrates property rights that

47 See also Florida Rock Indus., Inc. v. United States, 18 F.3d

1560, 1571, fm. 28 (Fed. Cir. 1994): “It is necessary that the

Government act in a good cause, but it is not sufficient. The

takings clause already assumes the Government is acting in the

public interest. . . . ” More than that, it assumes that the

Government is acting pursuant to lawful authority. If not, the

action is ultra vires and void. (Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 [1952] [unlawful wartime seizure voided];

compare United States v. Peewee Coal Co., 341 U.S. 114 [1951]

[compensation mandatory after lawful wartime seizure]}.)

compensation must be paid.” (Loretto, 458 U.S. at

425; emphasis added.)

Similarly, in Kaiser Aetna v. United States, 444 U.S. 164

(1979), the Corps of Engineers had decreed that a private

marina be opened to public use without compensation.

This Court disagreed, and explained (through [then] Jus-

tice Rhenquist) the relationship between justifiable regu-

latory actions and the just compensation guarantee of the

Fifth Amendment:

“In light of its expansive authority under the

Commerce Clause, there is no question but that

Congress could assure the public a free right of

access to the Hawaii Kai Marina if it so chose.

Whether a statute or regulation that went so far

amounted to a taking, however, is an entirely sepa-

rate question.” (Kaiser, 444 U.S. at 174; emphasis

added; citations omitted.)

In a similar vein are cases like Preseault v. 1.C.C., 494

U.S. 1 (1990) (Brennan, J.), Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) (Blackmun, J.), Dames & Moore v.

Regan, 453 U.S. 654 (1981) (Rehnquist, J.), and the Regional

Rail Reorganization Act Cases, 419 U.S. 102 (1974) (Bren-

nan, J.). In each of them, this Court was faced with the

claim that Congress, in pursuit of legitimate objectives,

had taken private property in violation of the Fifth

Amendment. The governmental goal in each was plainly

legitimate (respectively, the creation of recreational trails,

the licensing of pesticides, dealing with the aftermath of

the Iranian hostage crisis, and widespread railroad bank-

ruptcy). Nonetheless, the Court did not permit those

proper legislative goals to trump the constitutional need

for compensation when private property was taken in the

process. In each, the Court directed the property owners

to the Court of Federal Claims to determine whether

these exercises of legislative power, though substantively

legitimate, nonetheless required compensation to pass

constitutional muster.** This bedrock principle of the law

of constitutional remedies goes back to the unanimous

decision in Hurley v. Kincaid, 285 U.S. 95 (1932) (Brandeis,

J.), where the Court held that the remedy for a taking

resulting from valid governmental action is just compensa-

tion, not judicial second-guessing of governmental poli-

cies and decisions through disruptive injunctions.

In Nollan v. California Coastal Commn., 483 U.S. 825

(1987), the Court (through Justice Scalia) examined Cali-

fornia’s plan to create an easement along the coast from

Mexico to Oregon, and concluded:

“The Commission may well be right that it is a

good idea, but that does not establish that the

Nollans (and other coastal residents) alone can

be compelled to contribute to its realization.

Rather, California is free to advance its ‘compre-

hensive program,’ if it wishes, by using its

power of eminent domain for this ‘public pur-

pose,’ see U.S. Const., Amdt. 5; but if it wants an

easement across the Nollans’ property, it must

pay for it.” (Nollan, 483 U.S. at 841-842.)*9

And, of course, that concept is the underpinning for

the Court’s categorical rule that if regulation denies all

economically beneficial or productive use of private land,

it is a per se taking - no matter how beneficial it may be.

(Lucas v. South Carolina Coastai Council, 505 U.S. 1003, 1015

48 That is why the Fifth Amendment's just compensation

guarantee has been held self-executing. The availability of

compensation validates and constitutionalizes the otherwise

wrongful government action. (City of Monterey v. Del Monte

Dunes, 526 U.S. 687 [1999]; United States v. Clarke, 445 U.S. 253,

257 [1980].)

49 See also Griggs v. Allegheney County, 369 U.S. 84, 89-90

(1962) (Douglas, J.) [airport operator must pay for noise-

impacted property beyond the ends of its runway].

[1992].)5° That is why, under Lucas, a taking always occurs

when economically productive use is prevented, “without

case-specific inquiry into the public interest advanced in

support of such a restraint.” (Lucas, 505 U.S. at 1015;

emphasis added.)*!

Thus, for a taking to occur, it matters not whether the

regulators acted in good or bad faith, or for good or bad

reasons. What matters is the impact of their acts, not the

purity vel non of their motives. Indeed, if their motives

are benign, that only fortifies the need for compensation

by confirming that the taking is indeed for a public use as

required by the Just Compensation Clause of the Fifth

Amendment. Put still another way, the exercise of the

power to govern — whether by eminent domain or by far-

reaching regulations that de facto deprive the owners of

their right to make productive use of their land - is not a

tort. Nor is it per se wrongful - unless the government

refuses to pay the just compensation required by the

Constitution. That TRPA may not want to pay for the

impact of its regulations is irrelevant. That is, as this

Court put it when TRPA was here four years ago, “simply

one of the risks of regulatory pioneering, and the pioneer

5° See Florida Rock Indus., Inc. v. United States, 18 F.3d 1560,

1571, fm. 28 (Fed. Cir. 1994), in which the court noted with

understatement: “In Lucas, the South Carolina Supreme Court

had held that the State’s purpose in protecting oceanfront

ecology excused the State from liability for its regulatory

imposition. The Supreme Court held that was not the correct

criterion for takings jurisprudence.”

51 In City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999)

this Court (through Justice Kennedy) reaffirmed its position by

affirming an award of compensation notwithstanding that the

city’s purpose in rejecting development was environmental

protection. See also last Term’s decision in Palazzolo v. Rhode

Island, __ U.S. __ (2001) in which the Court remanded for

further consideration a case in which development had been

rejected in order to protect coastal wetlands.

here is the agency, not [the landowner].” (Suitum, 520

U.S. at 742 [Souter, J.].)

TRPA’s Conscious Decision To Prohibit The Use Of

The Petitioners’ Land Requires Compensation To

Constitutionalize That Choice.

What the government did here was to bar all eco-

nomically productive use of the subject residential lots,

assertedly for the greater good of the community. Bor-

rowing Nollan’s metaphor, TRPA decided to create a ben-

efit for all Americans by severely restricting development

around Lake Tahoe, but presented the bill for that public

benefit to these landowners alone. Through the enact-

ment of a series of rolling moratoria (now made perma-

nent), TRPA has de facto conscripted these landowners as

involuntary keepers of vacant land that they may not

productively use. TRPA may have had the right to make

that decision, but decisions have consequences. The con-

sequence here is that the decision requires compensation

to make it valid. Justice Holmes put it plainly for the

Court nearly a century ago, in words that seem to have

foreshadowed this litigation:

“[T}he state has an interest independent of and

behind the titles of its citizens, in all the earth

and air in its domain. It has the last word as to

whether its mountains shall be stripped of their

forests and inhabitants shall breathe pure air. It

might have to pay individuals before it could utter

that word, but with it remains the final power.”

(Georgia v. Tennessee Copper Co., 206 U.S. 230, 237

[1907] [emphasis added].)

This Court echoed the same thought more

recently:

“[Rjegulations that leave the owner of land

without economically beneficial or productive

options for its use - typically, as here, by requir-

ing land to be left substantially in its natural

state — carry with them a heightened risk that

private property is being pressed into some

form of public service under the guise of mit-

igating serious public harm.” (Lucas, 505 U.S. at

1018.)

Thus, when this Court analyzed the concept of tem-

porary regulatory takings and compared them to direct

condemnations (both temporary and permanent), it

found no conceptual difference:

“These cases reflect the fact 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.” (First English,

482 U.S. at 318.)

The temporary regulatory taking in First English was

the blood relative of the one at bench. It began as a

“temporary time out,” so that the County could consider

what use of the land was in the best public interest after a

flood had disclosed dangers in some of its uses, and then

was replaced by a permanent ban on new construction

(with limited exceptions not available to private citizens).

(See 482 U.S. at 307 and 313, fn. 7.)

When First English is combined with Lucas, the result

is clear except to those who insist that government

should never have to pay for the impact of its regulations

in any event. A respected national text (at least one of

whose authors has repeatedly referred to himself as “a

police power hawk,” i.e., an ardent defender of those

who wield the police power) concluded simply:

“The Supreme Court’s Lucas decision

requires a holding that a per se taking has

occurred when a moratorium denies a land-

owner all reasonable use of his land... . ”

(Daniel R. Mandelker, Jules B. Gerard & E.

Thomas Sullivan, Federal Land Use Law

§ 2A.05[2][c], p. 2A-65 [rev. 2001].)

Other commentators agree:

“In the authors’ opinion, the Supreme

Court's categorical taking rule in Lucas should

mandate compensation when moratoria result in

the temporary denial of all economically pro-

ductive or beneficial uses. . . . A moratorium

should be considered a categorical taking under

Lucas when it prohibits all development or the

submission of development applications on a

given parcel of property that currently has avail-

able no economically beneficial or productive

uses.” (Wendy U. Larsen & Marcella Larsen,

Moratoria as Takings Under Lucas, 46 Land Use

Law & Zoning Dig., no. 6, p. 3 at 6 [1994].)

“{I}n the residential context, a moratorium

should be considered a categorical taking where

property zoned residential has no existing habit-

able/saleable structures and is vacant.” (Michael

A. Zizka, et al., State & Local Government Land

Use Liability § 4:4, p. 4-11 [rev. 2000].)

Whether the government chooses to condemn a pas-

sive easement over private land, or whether it reaches the

same result through regulations that forbid the land’s

owners to make any use of it themselves, the result is the

same and, unsurprisingly, it is governed by the same

Constitutional doctrine. In short, the conscious legislative

decision to freeze the use of land is the functional equiva-

lent of a conscious legislative decision to acquire a prop-

erty interest (of whatever duration the legislators believe

necessary) by eminent domain. The constitutional imper-

ative of compensation follows in either case.

At A Minimum, Compensation Is Due From The

Time A Moratorium Has A Substantial Adverse

Impact On Landowners.

Petitioners agree with the commentators quoted

above that equitable considerations and the logic of Lucas

and First English mean that a moratorium that precludes,

for whatever period of time the regulators wish, all eco-

nomically productive use of private land is a per se, or

categorical, taking.

The need for compensation is at least as great for

those subject to moratoria as for those whose land is

physically invaded. In a sense, the Court resolved that

question in First English too, when it began its opinion

thus:

“In this case the California Court of Appeal

held that a landowner who claims that his prop-

erty has been ‘taken’ by a land-use regulation

may not recover damages for the time before it is

finally determined that the regulation constitutes a

‘taking’ of his property. We disagree, and con-

clude that in these circumstances the Fifth and

Fourteenth Amendments to the United States

Constitution would require compensation for that

period.” (First English, 482 U.S. at 306-307;

emphasis added.)

In so holding, this Court reaffirmed that takings

issues are viewed from the vantage point of the land-

owner because the purpose of the Bill of Rights is to

protect citizens from an overreaching government. That is

also why the Just Compensation Clause is treated as

“self-executing.” (First English, 482 U.S. at 315; United

States v. Clarke, 445 U.S. 253, 257 [1980]; City of Monterey v.

Del Monte Dunes, 526 U.S. 687 [1999].) Although the gov-

ernment can control the ending date of a temporary tak-

ing (see San Diego Gas, 450 U.S. at 658), compensation is

owed from the time of the adverse impact on the owner,

which may be some time before the date of judgment.

(First English, 482 U.S. at 318-321.)

In the case at bench, the fact that TRPA was engaged

in a scheme seeking to preserve a unique American envi-

ronmental resource does not allow it to achieve that goal

at the sole expense of these landowners. As the Court of

Appeals for the Federal Circuit put it (in the context of

wetlands preservation):

“What is not at issue is whether the Government

can lawfully prevent a property owner from

filling or otherwise injuring or destroying vital

wetlands... .

“The question at issue here is, when the

Government fulfills its obligation to preserve

and protect the public interest, may the cost of

obtaining that public benefit fall solely upon the

affected property owner, or is it to be shared by

the community at large.” (Loveladies Harbor, Inc.

v. United States, 28 F.3d 1171, 1175 [Fed Cir.

1994].)

The trial court concluded that TRPA had so much to

do, it was reasonable - from TRPA’s standpoint — to enact

moratoria, and that TRPA could not reasonably have

completed its tasks more rapidly. (Pet. App., pp. 114-115.)

But that, as this and other courts have repeatedly

explained, cannot immunize TRPA from its constitutional

duty to compensate when its proper governmental

actions conscript private property into public service.

Nor is it relevant to whether it was reasonable from the

landowners’ standpoint. It is all well and good to conclude

that the government has such an awesome job to do it

will take years to accomplish; however, it is something

quite different to conclude that the cost of that job will

fall only on selected individuals, rather than the public as

a whole which gets to enjoy the benefits of the regulation.

In a case like this, where the government enacts a

“moratorium” that precludes all economically productive

use (as the trial court found [Pet. App., p. 99], and the

Ninth Circuit affirmed [Pet. App., p. 40, fn. 30]), the right

to use the land is taken ab initio. The moratoria at bench

lasted from 1981 through 1984 (if one uses the salami

slicing analysis of the courts below) or until the present

and into the future (if one uses reality as a guidepost), a

significant period of time under any analysis. (See First

English, 482 U.S. at 322, terming the similar temporary

moratorium there “considerable.”)

The situation could conceivably be different under

other circumstances where, for example, the time period

is quite short, and its imminent ending date known from

the outset so that landowners can plan to deal with it and

try to minimize its impact. Under a standard that requires

substantial impact, such brief “time outs” might not be

takings. But that is not this case. As the trial judge put it:

“Enacting an unconstitutional ordinance with no

plans to end it is different than simply putting a

hold on development for a few months while

trying to formulate a plan under which develop-

ment will be possible.” (Pet. App., pp. 111-112.)

Under either standard proposed in this brief, i.e., a

bright line and doctrinally clear per se rule or a substan-

tial impact rule, the trial court properly decided to award

compensation to these landowners. That ruling should be

reinstated.

CONCLUSION

This Court asked:

“Whether the Court of Appeals properly deter-

mined that a temporary moratorium on land

development does not constitute a taking of

property requirirg compensation under the Tak-

ings Clause of the United States Constitution?”

(JA 192; emphasis added.)

The answer, plainly, is that it did not. The Court of

Appeals failed to understand or heed this Court's deci-

sion in First English. The Court of Appeals failed to

understand the totality of the injury TRPA inflicted on

these landowners. And the Court of Appeals misun-

derstood its task when it sought to protect the govern-

ment at the expense of individuals.

This Court has consistently held that it is the Fifth

Amendment charge of the judiciary to guard property

owners against confiscation engineered not only by crude

seizures, but by governmental “exercise[s] in cleverness

and imagination” as well (Nollan v. California Coastal

Commn., 483 U.S. 825, 841 [1987]), with the clear under-

standing that such protection would “lessen to some

extent the freedom and flexibility of land-use planners

and governing bodies of municipal corporations when

enacting land-use regulations” (First English, 482 U.S. at

321). Placing limits on the government is what the Bill of

Rights is all about.

Landowners, no less than other citizens, are entitled

to the safeguards of the Bill of Rights. (Dolan v. City of

Tigard, 512 U.S. 374, 392 [1994].) “After all, if a policeman

must know the Constitution, then why not a planner?”

(San Diego Gas, 450 U.S. at 661, fn. 26; Brennan, J., dissent-

ing.) Why not, indeed.

The Petitioners pray that the Ninth Circuit’s decision

be reversed so that they may finally recover compensa-

tion for the property taken from them two decades ago

for the period of time this Court determines to be the

period of actionable taking.

Respectfully submitted,

Counsel for Petitioners -

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.