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

Pd

. Supreme Court, US.

, ») FILED

yan 03 2002 No. 00-1167 DEC 18 2001

mel

In The CLERK

Supreme Court of the United St

e

TAHOE SIERRA PRESERVATION COUNCIL, INC.,

a California non-profit corporation

and membership organization, et al.,

Petitioners,

V.

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

.

REPLY BRIEF

¢

MicHaet M. BerceErR*

GIDEON KANNER

Bercer & Norton

A Law CorporATION

1620 26th Street

Suite 200 South

Santa Monica, CA 90404-4040

(310) 449-1000

LAWRENCE L. HOFFMAN

HorrMAN Law OFFICES

3000 No. Lake Boulevard

Post Office Box 7740

Tahoe City, CA 96145

(530) 583-8542

Counsel for Petitioners

"Counsel of Record

a

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............ccceeeecceees

EET. 60s occccccsccseccodoccecececocese

I

Il

IV

A MORATORIUM - AS EXEMPLIFIED HERE -

IS A REGULATION THAT TOTALLY FREEZES

THE ABILITY OF A LANDOWNER TO MAKE

ANY ECONOMICALLY PRODUCTIVE USE OF

LAND. THAT KIND OF REGULATION IS A

PER SE TAKING THAT REQUIRES COMPEN-

PD Seen cevecdecccsiescsseecaseecsecevees

THE GOVERNMENT CANNOT TAKE THE

RIGHT TO USE LAND - NEITHER THE EQUIV-

ALENT OF A FEE INTEREST NOR A LEASE-

HOLD - WITHOUT COMPENSATION .........

A The Fundamental Rules of Regulatory Tak-

ings — the Same as Those in Direct Condem-

nations -— Stem From the Fifth

Amendment’s Just Compensation Clause. .

B Courts Have Always Protected the Right of

BE cc ccccccntesecccsesdveestenvesocccese

C Whether the Taking is Temporary or Perma-

nent is Constitutionally Irrelevant; It Only

Goes to the Quantum of Compensation Pay-

able Under the Just Compensation Clause ..

TRPA’S VIRTUOUS PURPOSE CANNOT JUS-

TIFY CONFISCATING THE USE OF PRIVATE

PROPERTY WITHOUT COMPENSATION .....

THE SKY WILL NOT FALL IF LANDOWNERS

ARE COMPENSATED. ...............0ee0008-

SURE So chcceviedvecconcccccccecccdececees

12

ii

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980).......... 9

Armstrong v. United States, 364 U.S. 40 (1960)......... 3

Babbitt v. Youpee, 519 U.S. 234 (1997) ..............4.. 7

City of Austin v. Teague, 570 S.W.2d 389 (Tex. 1978) .... 18

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

(RODD) .ccccccvcccscecyecesesanheeneueanneean 10, 11

Cohens v. Virginia, 6 Wheat. (17 U.S.) 264 (1821)...... 5

Commissioner of Natural Resources v. S. Volpe & Co.,

Inc., 206 N.E.2d 666 (Mass. 1964) ..............55. 17

Del Monte Dunes v. City of Monterey, 95 F.3d 1422

(Ben Che. BIDE)... ccccccvcsccusswscpeedeemeeenneal 11

Dickman v. Commissioner, 465 U.S. 330 (1984) ........ 11

Dolan v. City of Tigard, 512 U.S. 374 (1994).......... 10

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 305 (1987) ............ passim

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) ..... 8

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

BODE). .cccccccoccscccccvesseeties eee neneunenanenns 8

Hodel v. Irving, 481 U.S. 704 (1987)..............00 0. 7

Hodel v. Virginia Surface Mining & Reclamation

Aasn.. nt., GR GE.. Bee Gas 0.640 6ckennasusens 10

Kaiser Aetna v. United States, 444 U.S. 164 (1979)...... 9

iii

TABLE OF AUTHORITIES - Continued

Page

Keystone Assocs. v. Moerdler, 278 N.Y.S.2d 185 (N.Y.

ERC PPP PPT ToTTTTTT TTL COCO OCCCUOLL 13

—— Bituminous Coal Assn. v. DeBenedictis, 480

Ee 10

Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1 (1984) ...8, 9

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

PETES EFPPPTTTTTTTTITITIT TIT TTT 13

Loretto v. Teleprompter Manhattan CATV Corp., 458

SY EE occcccccscccccccccccccccocccccocccce 6

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

SES MEE cccceccccceccccescesccccocccccece 2, 12

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

BED CIGTED ccc cccccccccccccccccccsccccccccees passim

Nolan v. Newtown Township, 49 Pa. D. & C. 4th 148

UES EE eee beeeescooeocetoseccccccccccccccces 13

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

ELE RITE OTTT TTT TTT TTT TTT ey 10

Palazzolo v. Rhode Island, 533 U.S. __, 150 L.Ed.2d

PDS ccesccesteescccccevescccceccccoccocs 10, 13

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

By MN ED cccccsocccccccconcecccccccces 4,5, 6,9

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) . .6, 17

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

RRs GE CUED ce cccccvcccccccccccccccccccccccece 8, 9

Schad v. Borough of Mount Ephraim, 452 U.S. 61

MESS ESUEECEbS GheSes Ce cccetccocceceooceeeces 10

iv

TABLE OF AUTHORITIES - Continued

Page

Seawall Associates v. City of New York, 544 N.Y.S.2d

Pe GE COP occ cdésvcdccancdsedcbecedivsdasaduecs 13

Sederquist v. City of Tiburon, 765 F.2d 756 (9th Cir.

SEDEPs coccccovcvescugnsencesdgnsdusdbbabadbeeteséus 3

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

SUPE D co cdccccccccccenvescquncdesdseddaensosacced 10, 16

United States v. Dickinson, 331 U.S. 745 (1947) ........ 2

United States v. General Motors, 323 U.S. 373 (1945) ...8, 9

United States v. Petty Motor Co., 327 U.S. 372 (1946) ..... 9

United States v. Riverside Bayview Homes, 474 U.S.

Bs Gus seeddeaecedieds bcadidedaniestes 10

STATUTES

ie Pe te CD bi cdi ek et 18

eee GE GD Oe GED notdcdeddiecdneusceadesiees 18

Sy ES nb nenccdddedens al bonnie: ae ee 18

Texts

Eagle, Steven J., Development Moratoria, First

nglish Principles, and Regulatory Takings, 31

Env. L. Rptr. 11232 (2001). .............000- 4, 13, 14

Kramer, Bruce M., Recent Developments in Land Use

and Environmental Law: Revolution or Evolution?

1988 Institute on gt Zoning, and Emi-

mamt Demsin, Gh. GF, B. BG... cccccccccccccecsccccces 14

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

Takings U Lucas, 46 Land Use Law & Zon-

ing Dig., no. 6, p. 3 at 6 (1994)............. 4, 19, 20

Vv

TABLE OF AUTHORITIES - Continued Page

a

Lazarus, Richard J., Litigating — v. eo Reg’l

Planning Agency in the United States Supreme

Court, 2 J. Land Use & Env’tl Law 179 (1997) .... 16

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

Thomas Sullivan, Federal Land Use Law

§ 2A.05(2)(c), p. 2A (rev. 2001).....--. +e eeeeeeees 5

Meltz, Robert, Dwight H. Merriam & Richard M.

Frank, The Takings Issue 278 (1999) .....-.--+-+++> 3

Traynor, Roger J., No Magic Words Could Do It

Saties, 49° Cal. L. Rev. 615 (1961) ......-----eeeeee: 7

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

ment Land Use Liability § 4:4, p. 4 (rev. 2000) ..5, 19

1

INTRODUCTION

1. Twelve lawyers from six different law offices sub-

mitted the Tahoe Regional Planning Agency’s (TRPA)

brief, but they all missed the point of the Petitioners’

(landowners) opening brief. They assert that “Petitioners

never explain the legal underpinnings of their theory.”

(TRPA 15; emphasis added.) And, remaining true to that

blindness, they never deal with the argument at pp. 32-49

of the opening brief - where those underpinnings are

analyzed at length. In a nutshell, the landowners’ legal

theory is, as the headline on page 32 expressed it:

“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 CONDEM-

NATION OF SUCH LAND. IN EITHER

EVENT, THE RIGHTFUL OWNER’S USE OF

THE LAND HAS BEEN TAKEN, AND JUST

COMPENSATION IS DUE.”

Not one of TRPA’s half dozen amici takes issue with this

underlying thesis either. In fact, only one of them even

mentions it, and its analysis supports the landowners, not

TRPA. The brief filed by the National Audubon Society and

three other environmental organizations put it this way:

“As the Court made crystal clear in First English,

regulatory takings doctrine flows from and is

governed by the same basic principles which

govern exercises of the power of eminent

domain generally. See 482 U.S. at 314. When the

government seizes property by eminent domain,

say for a road, it cannot be argued that the

government has no obligation to pay compensa-

tion because the road addresses a ‘serious’ or

‘important’ public transportation problem. Sim-

ilarly, in the regulatory caine content, it would

make no sense to conclude that the importance

of the police power objective being pursued

should weigh against a finding of a compens-

able taking.” (Audubon 21-22.)

2

The Audubon Society’s brief not only bolsters the

landowners’ legal theory, it lays to rest the arguments

made by TRPA and the rest of its amici that moratoria in

general, and this series of moratoria in particular, should

not require compensation because they are imposed to

achieve praiseworthy goals.

2. One other matter bears early mention. TRPA and

its amici take the landowners to task for having the

effrontery to note that the 1984 and 1987 TRPA Plans also

precluded all use of these lots. But that’s the fact. The

trial judge found that, once the “temporary” moratoria

were replaced by the 1984 Plan, “nothing much changed”

for these landowners. (Pet. App., pp. 75-76.)

This Court does not sit to decide hypothetical ques-

tions. Thus, although it framed the question now being

briefed as whether the Ninth Circuit erred in its conclu-

sions about temporary takings, that question must be

addressed on this record, not in a vacuum. (See United

States v. Dickinson, 331 U.S. 745, 748 [1947] [“Constitution

is intended to preserve practical and substantial rights,

not to maintain theories. .. . ”].)! Reality is this: these

landowners waited during the entirety of the “tempor-

ary” moratorium period before filing suit. They did not

immediately rush to court, but did so only after the

“temporary” moratoria were replaced with a permanent

plan in which “nothing much changed” for them, and the

use of their land remained frozen.

Thus, TRPA’s and its friends’ generalizations about

how temporary moratoria end, and how thereupon there

is use at the end of the tunnel, do not deal with this case.

The end of these moratoria made the land's disutility as

permanent as the regulation in Lucas v. South Carolina

1 TRPA and its amici demand that this Court ignore the fact

that the end of the moratoria brought only continued non-use,

so they can defend the hypothetical theory that all moratoria

eventually end and provide viable use (TRPA, pp. 26, 34-35;

Audubon, pp. 1, 6, 18-19; APA, p. 28; SG, pp. 18-19) - even

though this one did neither.

3

Coastal Council, 505 U.S. 1003 (1992). In short, Lake Tahoe

is being protected on the backs of Petitioners, contrary to

Armstrong v. United States, 364 U.S. 40, 49 (1960), which

held that the cost of public benefits must be apportioned

among those who benefit from them, and not simply

dumped onto those few citizens who fortuitously find

themselves in the path of grandiose government plans

intended to benefit society at large.

I A MORATORIUM - AS EXEMPLIFIED HERE - IS A

REGULATION THAT TOTALLY FREEZES THE

ABILITY OF A LANDOWNER TO MAKE ANY ECO-

NOMICALLY PRODUCTIVE USE OF LAND. THAT

KIND OF REGULATION IS A PER SE TAKING

THAT KEQUIRES COMPENSATION.

Neitaer TRPA nor its amici want to defend the total

freeze on property use effected by TRPA’s moratoria.”

Small wonder. Whenever commentators or lower courts

have defended regulations that call themselves “mor-

atoria,” they focus on the uses remaining to the owners

during the moratorium or the uses available thereafter.°

They do so because even pro-government advocates

know the importance - if moratoria are to be defensible -

of not prohibiting all use, thereby leaving landowners

something to do other than mark off days on a calendar.

(E.g., Robert Meltz, Dwight H. Merriam & Richard M.

2 The amicus brief filed by 22 States, for example, demands

that “[t]he issue cannot be limited to the context of the Tahoe

Basin and the restrictions placed on petitioners’ property”

(States, p. 2), and then presents generalized arguments

unrelated to this case. The American Planning Association takes

a different tack, insisting that there were uses permitted. (APA,

p. 28 [“there were a range of uses available.”] None are

mentioned, and no record is either cited or available to support

that assertion.)

3 See, e.g., Sederquist v. City of Tiburon, 765 F.2d 756, 758 (9th

Cir. 1984), noting the moratorium in issue there provided for

“use permits.”

4

Frank, The Takings Issue 278 [1999] [ironically, one of the

book’s authors represents Respondent State of California

herein].)

Here, however, the facts preclude those arguments because

there is no permitted use. Nonetheless, TRPA and its amici

base their position on the unmitigated fiction that the mor-

atoria left Petitioners with some use of their land either

during (APA, pp. 5, 28; Govt. Associations, pp. 17, 19) or

after (TRPA, p. 26; Audubon, pp. 1, 6, 18-19, 27; APA, p. 28;

SG, pp. 18-19; Govt. Associations, p. 17) the moratoria, or -

incredibly — that these landowners actually benefited from the

moratoria (TRPA, p. 26; SG, p. 29; States, p. 21).4

Thus, it seems necessary to examine the “mor-

atorium” that is before this Court. This moratorium was a

total freeze on the ability of the owners of the affected

land to develop their land in any way. Moreover, when

the moratorium supposedly ended, the affected owners

were still forbidden to use their land. (Pet. App., pp.

75-76 [per trial judge: “nothing much changed”].) That is

not the mere “adjust[ment of] the benefits and burdens of

economic life” this Court talked about in Penn Central

Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

That kind of moratorium has been recognized as being a

Lucas taking requiring compensation:

“A moratorium should be considered a categori-

cal taking under Lucas when it prohibits all

development or the submission of development

applications on a given parcel of property that

currently has available no economically benefi-

cial or productive uses.” (Wendy U. Larsen &

Marcella Larsen, Moratoria as Takings Under

* By contrast, Judge Kozinski’s dissent from the en banc

vote below (for himself and four others) recognizes the reality of

the two decade freeze. (Pet. App., pp. 158, 159, 163.) See also

Steven J. Eagle, Development Moratoria, First English Principles,

and Regulatory Takings, 31 Env. L. Rptr. 11232, 11237, 11238

(2001).

5

Lucas, 46 Land Use Law & Zoning Dig., no. 6, p.

3 at 6 [1994].)

“{Ijn 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 Govern-

ment Land Use Liability § 4:4, p. 4-11 [rev.

2000}.)

“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].)

What is before this Court is a categorical moratorium

that permits no productive private use during its entire

existence. That is the factual predicate of this case. And that is

the context in which the law n to be analyzed. (See

Cohens v: Virginia, 6 Wheat. [17 U.S.] 264, 399-400 [1821].)

Thus, the class of cases covered by the per se rule

proposed by the landowners includes — like Lucas — those

categorical moratoria that wholly preclude private eco-

nomically productive use of privately owned land. If the

Court were also to conclude that other kinds of moratoria

(e.g., the kind that TRPA and its amici have chosen to

defend, i.e., those that do not wholly preclude productive

use) are subject to an ad hoc analysis under Penn Central,°

that would not hinder reversal of the Ninth Circuit on

these facts, nor preclude application of a per se rule when

they recur.

5 Intriguingly, TRPA’s environmental amici seem to believe

the Penn Central rule is not worth the paper it’s written on.

(Audubon, pp. 19-20, 23.)

6

Il THE GOVERNMENT CANNOT TAKE THE RIGHT

TO USE LAND - NEITHER THE EQUIVALENT OF

A FEE INTEREST NOR A LEASEHOLD - WITH-

OUT COMPENSATION.

The salient feature of the common law is its ability to

grow and adapt. Regulatory takings law is a particularly

noteworthy illustration, because its modern history dates

back only about two decades. When this Court re-entered

the field after the nearly half-century pause that followed

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), it was

properly cautious. But that does not mean that the first

cases that came along locked the law in some rigid

straightjacket. In its first effort, Penn Central, the Court

was content to say that it had no hard and fast rules, and

it would examine each takings case on its own facts. (438

U.S. at 124.)

The law continued to develop.® A few years later, the

Court decided Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982). By that time, the Court was

ready to articulate the holding that a permanent physical

invasion does not require ad hoc examination, and is a per

se taking.” And then came Lucas, where the Court

announced another per se taking event: a regulation that

denied landowners the economically productive or bene-

ficial use of their land. That didn’t require ad hoc exam-

ination either.

TRPA believes the law then stopped developing; that

when this Court said that those two types of government

ss

¢ From 1980 through 1987, for example, th Court devoted

substantial resources to the question of whether the remedy for

a regulatory taking was compensation or invalidation. (See First

English Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 305, 311 [1987].)

7 While Loretto distinguished between physical and

regulatory impacts on property, First English concluded (after

the Court had five more years’ experience with regulatory

takings) that the two were legally the same. (482 U.S. at 318.)

7

action represented per se, or categorical, takings, that

completed the list and closed the file. (See TRPA, pp. 15,

20.) TRPA is wrong.®

With respect, those who would make such arguments

are what California’s late Chief Justice Roger Traynor

called “bogus defenders of stare decisis,” bent on hiding

behind their view of where the law stopped in order to

prevent their opponents from obtaining justice. (Roger J.

Traynor, No Magic Words Could Do It Justice, 49 Cal. L.

Rev. 615, 621 [1961].)

A The Fundamental Rules of Regulatory Takings -

the Same as Those in Direct Condemnations -

Stem From the Fifth Amendment’s Just Com-

pensation Clause.

The rule the landowners seek here is only a modest

application of concepts already announced, i.e., that a

regulation totally forbidding all use of property for any

period of time is another kind of per se taking. As dis-

cussed in the landowners’ opening brief (and never dis-

puted by TRPA), there is no legal, conceptual, or

jurisprudential difference between a government

agency’s deliberate decision to freeze the use of land for a

period of years and that same agency’s formal condemna-

tion of the right of user for the same time period. In the

latter situation, no one would doubt the owner’s right to

compensation. The same should hold true here. This

Court concluded plainly in Lucas that restraints imposed

8 In Babbitt v. Youpee, 519 U.S. 234 (1997), this Court

considered adding another per se taking to the list: abrogation of

the right to devise property. That proved unnecessary, however,

because Congress clearly had failed to resolve the problems

noted in Hodel v. Irving, 481 U.S. 704 (1987), in which the Court

had struck down an earlier statute on the same subject. (519 U.S.

at 243, fn. 3.) If this Court agreed with TRPA that the list of per se

takings was closed, it could have said simply that there cannot

be any additional per se takings. But it did not.

8

by regulation are constitutionally the same as those

imposed through condemnation:

“The many statutes on the books, both state and

federal, that provide for the use of eminent

domain to impose servitudes on private scenic

lands preventing developmental uses, or to

acquire such lands altogether, suggest the practi-

cal equivalence in this setting of negative regulation

and appropriation. [Citing numerous statutes.]”

(505 U.S. at 1018-1019; emphasis added.)

When regulations have the same effect as physical

occupation (i.e., assuming control and precluding the

landowners from using their own land), there is no

functional difference between the two modes of govern-

ment action. (First English, 482 U.S. at 318-319; 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 accomplishes the taking. (U.S. v. General

Motors, 323 U.S. 373, 378 [1945]; Kirby Forest Indus., Inc. v.

U.S., 467 U.S. 1, 14 [1984]; see also Hawaii Housing Auth. v.

Midkiff, 467 U.S. 229, 244 [1984].)2°

In General Motors, this Court addressed the compen-

sation due when the government took temporary occu-

pancy of property. Carefully parsing the words of the

Fifth Amendment, the Court concluded first that “prop-

erty” included all interests in land an individual might

hold, and then decided that determining what has been

“taken” is based on “the deprivation of the former owner

9 See Hendler v. United States, 952 F.2d 1364, 1374 (Fed. Cir.

1991) (“The Government does not have the right to declare itself

a co-tenant-in-possession with a property owner.”)

10 This kind of delay is unrelated to the delay suffered in

Agins while the city studied condemning the property. (See

APA, p. 15.) Absent a direct legal restraint, potential

condemnees are free to use their land as they see fit. (Kirby, 467

U.S. at 15.) Not so, the targets of a moratorium.

9

rather than the accretion of a right or interest to the sover-

eign... . ” (323 U.S. at 378.) There, what was taken was an

estate for years, i.e., a temporary deprivation of the right of

use. The same is true at bench — but without the agency

honestly fessing up to it. (See also United States v. Petty Motor

Co., 327 US. 372, 378 [1946] [constitutionally immaterial

whether government took leasehold, or right to use “or only

destroyed the tenant’s right of occupancy”].)

In Kirby, which dealt with the government's delay in

completing an acquisition, the Court concluded simply that:

“We have frequently recognized that a radical

curtailment of a landowner’s freedom to make

use of or ability to derive income from his land

may give rise to a taking within the meaning of

the Fifth Amendment, even if the Government

has not physically intruded upon the premises

or acquired a legal interest in the property.” (467

U.S. at 14; Marshall, J., for a unanimous Court.)

“{(RJadical curtailment of a landowner’s freedom to

make use of .. . his land” seems a stunningly apt descrip-

tion of what TRPA did here. When government enacts

regulations so severe that they prevent all economically

productive private use of privately owned land, the gov-

ernment has taken an interest in the land as surely as if it

directly condemned it. Fifth Amendment compensation

follows. As this Court put it in First English, “government

action that works a taking of property rights necessarily

implicates the ‘constitutional obligation to pay just com-

pensation.’ [Citation.]” (482 U.S. at 315; emphasis added.)

B Courts Have Always Protected the Right of User.

This Court has repeatedly framed its test for a regula-

tory taking in terms of the ability of landowners to use

their land."

11 Penn Central, 438 U.S. at 124; Kaiser Aetna v. United States,

444 U.S. 164, 174 n. 8 (1979); Agins v. City of Tiburon, 447 U.S. 255,

260 (1980); San Diego Gas, 450 U.S. at 653 (1981) (Brennan, J.,

10

Lucas was most decisive ir. focusing on denial of use

as the key to a regulatory taking.!2 There, the Court

repeatedly stressed its concern with the impact of South

Carolina’s regulation on Mr. Lucas’ ability to make ratio-

nal use of his vacant, but subdivided, land.}5 In its most

recent decision, Palazzolo v. Rhode Island, 533 U.S. __, 150

L.Ed.2d 592, 607 (2001), the Court reiterated this Lucas

conclusion, as it assumed the owner could have built a

substantial home on his land.

dissenting); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68

(1981); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,

452 U.S. 264, 296 (1981); Kirby, 467 U.S. at 14; United States v.

Riverside Bayview Homes, 474 U.S. 121, 126 (1985); Keystone

Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 485 (1987);

Nollan v. California Coastal Commn., 483 U.S. 825 (1987); Lucas,

505 U.S. at 1015; Dolan v. City of Tigard, 512 U.S. 374, 385 (1994);

Suitum v. Tahoe Reg. Plan. Agency, 520 U.S. 725, 736, fn. 10 (1997);

City of Monterey v. Del Monte Dunes, 526 U.S. 687, 700 (1999);

Palazzolo v. Rhode Island, 533 U.S. __, 150 L.Ed.2d 592, 607

(2001).

12 To be sure, references to deprivation of value can also be

found in the opinion. That is understandable in light of the fact

that the state trial court had found that the regulation deprived

Mr. Lucas of all his land’s value (a finding that seemed to

engender substantial skepticism [see 505 U.S. at 1033-1034

(Kennedy, J., concurring)]). But the Court’s emphasis plainly

was on the loss of use, which was determinative.

13 Lucas, 505 U.S. at 1016 [“economically viable use”}; 1016,

fn. 6 (“economically viable use”; “economically beneficial use”};

1016, fn. 7 [“economically feasible use”; “economically

beneficial use”]; 1017 [“beneficial use”; “productive or

economically beneficial use”]; 1018 [“economically beneficial

uses”; “economically beneficial or productive options for its

use”}]; 1019 [“developmental uses”; “economically beneficial

uses”; “economically idle”]; 1019, fn. 8 [“economically

beneficial use”; “productive use”]; 1027 [“economically

beneficial use”]; 1028 [“economically valuable use”]; 1029

[“economically beneficial use”]; 1030 [“economically

productive or beneficial uses”].

11

The relationship of use to value was part of the

recent Dei Monte Dunes litigation. There, after the city had

repeatedly turned down development applications and

the owner had sued for compensation, the state bought

the property for less than the testimony of its fair market

value, but more than the owner had paid for it earlier.

The jury nonetheless returned a verdict in the owner's

favor, the Court of Appeals affirmed (Del Monte Dunes v.

City of Monterey, 95 F.3d 1422, 1433 [9th Cir. 1996]), and

this Court affirmed as well (526 U.S. 687). Moreover, the

Court of Appeals discussed the question of remaining

value in terms of a moratorium, in words that presaged

the facts here:

“For example, in conjunction with a legislative

moratorium on property development, a state

might implement a ‘buy-out’ program for envi-

ronmentally sensitive property and purchase a

landowner’s property at a higher price than

what the landowner originally paid. [Citations

to Lucas and an earlier TRPA case.] A govern-

ment buy-out, of course would not necessarily

shield the government from the Takings Clause.

Rather, the buy-out would likely implicate the

issue of just compensation. Thus, a landowner

who believed that the government bought out

his property at an unfairly low price might

choose to bring an action for just compensa-

tion.” (95 F.3d at 1432.)

The idea that use is a key right in the property rights

bundle is not restricted to takings law. As this Court

concluded in a tax case:

“We have little difficulty accepting the theory

that the use of valuable property . . . is itself a

legally protectible property interest. Of the aggre-

gate rights associated with any property inter-

est, the right of use of property is perhaps of the

highest order.” (Dickman v. Commissioner,

U.S. 330, 336 [1984]; emphasis added.)

12

C Whether the Taking is Temporary or Permanent

is Constitutionally Irrelevant; It Only Goes to

the Quantum of Compensation Payable Under

the Just Compensation Clause.

In First English, this Court plainly acknowledged the

concept of a temporary taking and the constitutional neces-

sity to compensate when one occurs. (482 U.S. at 318.) It

appears that TRPA and its friends are upset that the context

of First English was a temporary planning moratorium of

about the same length as the pre-1984 moratoria here. To

evade that nasty factual coincidence, two of TRPA’s amici

insist that the facts of First English are “entirely irrelevant” to

its holding. (States, p. 25; APA, p. 18, fn. 6.) Can’t be so.

Holdings are always tied to their facts, and if the Court

believed the facts - as a matter of law — could not support a

taking, it would have refused to decide the issue, as it had

previously. (See First English, 482 U.S. at 311.)

Moreover, in Lucas, the government argued that its

regulation had been amended so that Mr. Lucas could

apply for a permit, rendering any consideration of a

taking premature. This Court would have none of it,

concluding that the question of whether the amendment

had rendered the taking temporary could be decided by

the state courts on remand. (505 U.S. at 1011-1012 [citing

First English]}.)}4 In his concurring opinion, Justice Ken-

nedy also noted that this only presented a question for

remand, saying “it is well established that temporary

takings are as protected by the Constitution as are perma-

nent ones. [Citing First English.]” (505 U.S. at 1033.)

TRPA also asserts that economically viable use can-

not mean “immediate” use. (TRPA, pp. 16, 31.) Some-

times, it does. Although landowners may have to wait a

modest amount of time while development applications

#4 On remand, the South Carolina Supreme Court found a

temporary taking as a matter of law. (Lucas v. South Carolina

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

13

are being processed (not frozen, but processed),° a deliber-

ate government development ban is a far different creature.

For example, in Lomarch Corp. v. Mayor of Englewood, 237

A.2d 881 (NJ. 1968), the court held that if government

wanted to freeze the use of land for one year while deciding

whether to acquire it, it had to compensate the owner for

seizing his ability to use the land, equating the action with

the purchase of an option on the private market. Similarly, in

Seawall Associates v. City of New York, 544 N.Y.S.2d 542 (N.Y.

1989), the court held that a five year moratorium on convert-

ing low rent housing into anything else was a taking. The

court found the ordinance facially invalid as a drastic inter-

ference with the owners’ “right to use their properties as they

see fit” (544 N.YS.2d at 549; emphasis, the Court’s) and a

taking of their right to develop their properties (544 N.Y.S.2d

at 550).26 In Nolan v. Newtown Township, 49 Pa. D. & C. 4th

148 (2000), a landowner sued when the township instituted

an 18 month moratorium on subdivisions while it contem-

plated changes in its ordinance. The court held that he

properly stated a claim under First English and set the matter

for valuation. Those cases involved taking the “immediate”

right to use.

Because of the shared constitutional parentage of direct

and inverse condemnation law,!” First English analogized the

temporary moratorium before it to the condemnation of a

15 Most states have enacted statutes concluding that 30 to

60 days is adequate time to process such applications. (See

Steven J. Eagle, Development Moratoria, First English Principles,

and Regulatory Takings, 31 Env. L. Rptr. 11232, 11236 [2001]}.)

16 See also Keystone Assocs. v. Moerdler, 278 N.Y.S.2d 185

(N.Y. 1967) (invalidating an uncompensated 180-day delay on

the right of the purchasers of the old Metropolitan Opera House

to deznolish and redevelop the property).

17 See Palazzolo, 150 L.Ed.2d at, 618, fm. * (O’Connor, J.,

concurring), noting that regulatory takings involve two

questions: (1) whether the regulation is valid under the police

power, and (2) whether that police power exercise requires

compensation.

14

leasehold for the same period of time. Even if the owner had

no “immediate” plan for use, compensation would still be

due.1® Thus, the key to all takings is the deprivation of the

owner's property rights. (See Eagle, op. cit., p. 11238.) The

length of the deprivation affects only the quantum of com-

pensation.

Similarly, TRPA’s (and the Ninth Circuit’s) position that

temporary takings — by definition - cannot arise from regula-

tions that were intended to be temporary, makes no sense.!9

If, as this Court has repeatedly held, the Constitution is

concerned with the pragmatic impact of government action

on citizens, then the mode of infliction is not determinative.

If the action is severe enough to be a taking, then it remains a

taking even if intended only for a finite period of time.

Besides, the rule advocated by TRPA would open the door to

abuses - for who is to say that an ostensibly temporary

moratorium is not actually a substitute for a use prohibition?

Or that a rolling series of “temporary” moratoria are not

merely a surrogate for a permanent development ban? (See

Eagle, op. cit., p. 11237-11238; Pet. App., pp. 163-164

[Kozinski, J., dissenting].)

#8 It is bedrock condemnation law that the owner’s

personal plans are irrelevant. That the valuation in

condemnation is related to the property’s highest and best use

(even if that is in the future) (see Govt. Associations, pp. 17-19)

is irrelevant here, as it is a different issue. Regulatory takings

are concerned with the impact of regulations today, as a

threshold liability factor. Once past a liability finding, valuation

would be as it always is in eminent domain. But the two issues

should not be confused.

19 The fact that a professor shares that view (see APA, p. 15)

merely shows that even bright people can misread cases. For a

contrary professorial view, see Bruce M. Kramer, Recent

Developments in Land Use and Environmental Law: Revolution or

Evolution? 1988 Institute on Planning, Zoning, and Eminent

Domain, ch. 5, p. 5-5 (“intentionally or accidentally temporary

in nature”).

15

The Solicitor General parts company with TRPA and

posits that there “could be circumstances in which even

land-use regulation that was intended from the outset to be

temporary should be analyzed under the Lucas per se takings

approach. ... ” (SG, p. 28.) To find such circumstances, the

brief insists that:

“the regulation precluded all economically viable

use of Scapenty Guin the period it was in effect

and also shared the other characteristics of the

tion that was found in Lucas to be a per se

taking —- i.e., if the regulation imposed markedly

disproportionate burdens on isolated landowners

rather than securing a reciprocity of advantage to a

broad community, effectively pressed —

erty into public service (albeit for a finite period),

and pee a significant departure from back-

ground property-law principles.” (SG, p. 28.)

If that is to be the test, this case meets each part. First,

although these moratoria adversely affected a substantial

number of properties, they placed a disproportionate burden

on relatively few because the area under TRPA’s regulation

covers some 500 square miles, with thousands upon thousands of

subdivided lots. The affected owners are only those

in the so-called “high hazard” areas on the steeper hillsides

or in the stream environment zones. All the vacant lots in

that targeted area - and only those - were frozen by the

moratoria. Second, those targeted individuals received no

“reciprocity of advantage” — indeed, no advantage of any

kind - from either the moratoria or the permanent regula-

tions that followed. Their lots were frozen in 1981 and

remain so. That others in the Tahoe Basin benefit from the

Petitioners’ sacrifice only underscores the disproportionality

of the Petitioners’ loss. Third, all of these properties were

pressed into public service, ie., complete non-use, because

that is the “service” TRPA demanded.”° Fourth, the proof of

20 Please recall that the trial court found the regulations

were written in such draconian terms that some of these

landowners could not even set foot on their own land (because

16

the impact of these moratoria is in the ent tions

that replaced them. In light of TRPA's mission — the

eutrophication of the lake, along with the known science that

made it a foregone conclusion that stopping development on

these lands in perpetuity was the only solution (see, e.g., the

amicus brief filed here by a group of scientists), the mor-

atorium did reflect a final determination about the non-use of

these lots. It merely held them in limbo until formal studies

could be completed justifying a permanent development

ban. And the permanent regulations that followed (which, as

the trial court found, made no change in what the Petitioners

could do [Pet. App., pp. 75-76]) proved that. Finally, no

“background” legal precept holds that the property of a

selected group of individuals (even a fairly large group) can

be singled out for a de facto taking to benefit a larger group.

These landowners were subjected to unconstitutional

regulation, and their lands were per se taken, even under

the Solicitor General’s proposed criteria.

III TRPA’S VIRTUOUS PURPOSE CANNOT JUSTIFY

CONFISCATING THE USE OF PRIVATE PROP-

ERTY WITHOUT COMPENSATION.

TRPA and most of its amici spend an inordinate

amount of time crashing through a door that was never

locked, when they argue that Lake Tahoe is beautiful and

worth preserving, and therefore it is necessary to restrict

development in the Tahoe: Basin.2 Indeed, the amicus

that would disturb the site) unless they obtained a permit from

TRPA. (Pet. App., p. 73.)

21 Stressing environmental factors has become a favored

tactic of pro-regulation advocates these days. See, e.g., Richard

J. Lazarus, Litigating Suitum v. Tahoe Reg’! Planning Agency in the

United States Supreme Court, 12 J. Land Use & Env’tl Law 179

(1997), in which counsel for TRPA in Suitum v. Tahoe Reg. Plan.

Agency, 520 U.S. 725 (1997) (and one of its counsel in this case, as

well) describes the way he tried to spin the analysis away from

17

brief by a group of scientists is wholly devoted to that

point. Petitioners do not dispute it. (See, e.g., Cert. Pet.,

pp. 6-7; Pet. Br., p. 3.) It’s all irrelevant.

This case is about means not ends. What is at issue is

not whether TRPA can protect the glory of Lake Tahoe,

but whether it can do so by freezing the use of Peti-

tioners’ land without compensation.?? As the Supreme

Judicial Court of Massachusetts aptly observed:

“In this conflict between the ecological and

the constitutional, it is plain that neither is to be

consumed by the other. It is the duty of the

Department of Conservation to look after the

interests of the former, and it is the duty of the

courts to stand guard over constitutional

rights.” (Commissioner of Natural Resources v. S.

Volpe & Co., Inc., 206 N.E.2d 666, 671 [Mass.

1964].)?

TRPA and its amici believe (as did the Ninth Circuit)

that TRPA’s goals were praiseworthy. TRPA can surely

take credit for halting development in those areas of the

Tahoe Basin it deemed hazardous to the Lake’s purity.

The constitutional problem is that it did so at the expense

the constitutional issues at its heart and toward paeans to the

beauty of Lake Tahoe.

22 Thus, comments like the following, from the Council of

State Governments and seven similar organizations, are

singularly off target: “Without the protections challenged in this

case, the Lake would turn green . . . and land values in the

region would plummet.” (Govt. Associations, p. 16, fn. 11.) No

“protections” are “challenged” in this case. The landowners

seek compensation, not invalidation of “protections.”

23 Some eight decades ago, in Pennsylvania Coal, the

dissenting opinion argued the contrary 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. The Court has

consistently rejected that proposition ever since. (See cases

discussed at Pet. Br., pp. 39-44.)

18

of a targeted group of individuals who weren't doing

anything improper with their land. In fact, all they ever

wanted to do with it was to use it in the very way for

which the land had been officially planned and zoned for

many years (as many of their neighbors had done): per-

sonal, single-family homes on lots that had already been

lawfully subdivided for that purpose.** The protection of

what TRPA calls “the crown jewel of the Sierra Nevada

mountain range” (TRPA, p. 4) is not the responsibility of

individuals. The Crown protects the crown jewels.» In

the words of the Texas Supreme Court, there is no rule

holding “ . . . that government may take or hold another’s

property without paying for it, just because the land is

pretty.” (City of Austin v. Teague, 570 S.W.2d 389, 394 [Tex.

1978].)

Thus, when the federal government decided to pro-

tect the ancient Coast Redwoods, another irreplaceable

environmental treasure, it bought them. (Pub. L. 90-454,

82 Stat. 931 [1968].) And so it should here.

IV THE SKY WILL NOT FALL IF LANDOWNERS

ARE COMPENSATED.

The briefs filed in support of the Ninth Circuit's

ruling raise familiar “Chicken Little” arguments, of the

24 It cannot go without at least a brief mention that

constructing housing is deemed a highly favored activity that is

encouraged by a host of government policies, subsidies, and tax

advantages. There is thus simply nothing wrong with

Petitioners’ desire to build individual homes on their land

explicitly zoned for that purpose. (The fact that their neighbors

were not ordered to demolish their homes shows there was

nothing inherently wrong with Petitioners’ plans. [See Lucas,

505 U.S. at 1031.])

25 The law obliges the government to purchase the property

it requires to further the public interest and not compel its

owners to have to sue for compensation. (42 U.S.C. § 4651[8].)

California and Nevada adopted similar laws patterned after the

federal statute. (Cal. Govt. Code § 7267.6; NRS 342.045.)

19

“parade of horribles” variety. (E.g., Audubon, p. 2; Govt.

Associations, p. 3; States, p. 1.) Their alarums are

unfounded.?6 The real problem is that, relying on undue

judicial deference to their handiwork, many land use

regulators have grown lax and lazy about keeping their

plans up to date, and have lapsed into the unfortunate

practice of using ad hoc moratoria as substitutes for

municipal foresight and responsible planning. As two

lawyer/land use consultants put it in an American Plan-

ning Association publication, “moratoria should not be

used as a crutch in place of long-term planning... . ”

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

Under Lucas, 46 Land Use Law & Zoning Digest, no. 6, p.

3 [1994].) Building on that thought, a more recent text

concluded:

“moratoria are not an acceptable substitute for

consistent advance long-term planning. Mor-

atoria are enacted, in most cases, because com-

prehensive plans and land development

regulations have not been prepared or kept cur-

rent with changing conditions. If they were,

development applications which are unwanted

and the kind of ‘emergency’ planning studies

which engender moratoria would be avoided.”

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

ment Land Use Liability § 4:4, p. 4-14 [rev.

2000].)

26 The tactic is becoming hackneyed. The Court’s own files

in First English, for example, enshrine a variety of such

arguments. There, a large group of state amici said the church

was seeking a “radical reformulation of takings jurisprudence”

that would “cripple” regulators (pp.1-2), risk “financial chaos,”

and have “a major chilling effect on the regulatory process” (p.

23). The State and Local Legal Center predicted that a ruling

adverse to the government would “paralyze” public health and

safety regulation, “threatening bankruptcy” for municipalities.

(p.3.) However, when this Court ruled against the government,

life continued, and there have been no reports of municipal

paralysis or bankruptcy related to the opinion.

20

As for the financial catastrophe that [RPA and its

amici predict, the Larsens’ article concludes that if cate-

gorical moratoria (like the ones at bench) are invoked

properly (i.e., rarely and for limited times and reasons),

“the instances where the Lucas categorical taking rule

would come into play with moratoria should be relatively

rare. [{] Moratoria will even more rarely cause takings

when communities are careful not to use them as substi-

tutes for consistent long-term planning.” (Larsen &

Larsen, op. cit., 46 Land Use Law & Zoning Digest, no. 6,

p. 7; emphasis in original.)?7

CONCLUSION

TRPA sacrificed the rights of these landowners so that

Lake Tahoe could remain clear and blue and beautiful. It is

time for TRPA to shoulder the burden for that very public

project by compensating them for what was taken.

Petitioners pray that the decision of the Ninth Circuit be

reversed.

Respectfully submitted,

LAWRENCE L. HOFFMAN MIcHAEL M. BercER*

HorFMAN Law OFFICES GIDEON KANNER

Bercer & Norton

Counsel for Petitioners

"Counsel of Record

27 Unfortunately, the Solicitor General’s brief does not add

clarity on this point, possibly because the United States does not

engage in land use regulation like state and local government

agencies do and that office is less familiar with the process. That

resulted in a brief that mistakenly seeks to minimize the use and

impact of moratoria. Thus, while the Solicitor General believes

that “no land-use agency is likely to employ moratoria on a

routine basis” (SG, p. 19), that is simply not so. Others properly

note that moratoria are used so often they have become a

standard, albeit improper, tool in the governmental box (e.g.,

States, p. 2; Govt. Associations, pp. 1, 4, 7).