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

lS

No. 00-1167

In the Supreme Court of the Cinited States

TAHOE-SIERRA PRESERVATION COUNCIL, INC... ET AL.,

PETITIONERS

TAHOE REGIONAL PLANNING AGENCY, ET AL.

ON WRIT OF CERTIORARI

TOTHE UNITEDSTATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

THEODORE B. OLSON

Nol ie tor General

’ ’ > ,

(ou) ‘ oft COTTE

‘

JOHN C. CRUDEN

Act ng As sfatpl Attorne {

P7 neral

EDWIN S. KNEEDLER

Deputy No/ citor Gene ral

MALCOLM L. STEWART

As: sta? i fa thre Solicitor

(sr vera

PETER H. OPPENHEIMER

Aftormne iy

; U .

Of JUSTICE

Lh partmen

Washinaton. DD €* 20530-0001

} , ~ >)

(202) 214-221

QUESTION PRESENTED

Whether the Court of Appeals properly determined that a

temporary moratorium on land development does not consti-

tute a taking of property requiring compensation under the

Takings Clause of the United States Constitution.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ...0..........ccccsscsssssssseeseseesessereneneenees 1

EE 2

GD centeeneeneen 8

Argument:

A temporary development moratorium, reasonably

designed to preserve the status quo pending comple-

tion of a comprehensive land-use plan, does not effect

a per se taking Of property .............sssssssessserseesenenesneensees 9

A. Substantial development of real property typi-

cally requires the prior approval of land-use

authorities, and reasonable delays in develop-

ment resulting from the permit application

~ process do not effect a taking 11

B. A reasonable moratorium on development sending

completion of a comprehensive land-use plan does

not constitute a per se taking under Lucas ............. 16

C. This Court’s decision in First English does not

suggest that a temporary development mora-

torium effects a per se taking of property ............... 25

SIE ceinieneneriestpennnitpanisatmennenesiamennienemnesemememmmememnmnmenes 30

TABLE OF AUTHORITIES

Cases:

Agins v. City of Tiburon, 447 U.S. 255 (1980) .......... 12, 14, 15

American W. Dev., Inc. v. City of Henderson,

ee 23

Andrus v. Allard, 444 US. 51 ED encietmememeeen 17

Armstrong v. United States, 364 U.S. 40 (1960) .............. 14

Aveo Cmty. Developers, Inc. v. South Coast Reg’l

Comm'n, 17 Cal. 3d 785 (1976), cert. denied, 429 U.S.

BED CTU) accennccnezscrencesesesesasseseceereresezsssssssaveneassanenssessecscocsasasess 23

Block v. Hirsh, 256 U.S. 135 (1931) : 27

(IIT)

IV

Cases—Continued: Page

California ex rel. Van de Kamp v. Tahoe Reg’l

Planning Agency, 766 F.2d 1308 (9th Cir. 1985) ............ 4,18

City of Dallas v. Meserole, 155 S.W.2d 1019 (Tex.

Civ. App. 1941) 25

Danforth v. United States, 308 U.S. 271 (1989) ............... 12

Dolan v. City of Tigard, 512 U.S. 374 (1994) 12, 24

Downham v. City Council, 58 F.2d 784 (E.D. Va.

1932) 24

First English Evangelical Lutheran Church v.

County of L.A.:

482 U.S. 304 (1987) 6, 25, 26, 27

210 Cal. App. 3d 1353 (1989), cert. denied, 493 U.S.

1056 (1990) 16

Fowler v. Obier, 7S.W.2d 219 (Ky. 1928) 24

Heckler v. Campbell, 461 U.S. 458 (1983) 22

Hodel \. Irving, 481 U.S. 704 (1987) 17

Jackson Court Condominiums, Inc. v. City of

New Orleans, 874 F.2d 1070 (5th Cir.1989) 16

Kelly v. Tahoe Reg’'l Planning Agency, 855 P.2d

1027 (Nev. 1993), cert. denied, 510 U.S. 1014 (1994) ....... 16, 29

Lake Country Estates v. Tahoe Reg’! Planning

Agency, 440 U.S. 391 (1979) 2

Long Beach Equities, Inc. v. County of Ventura,

231 Cal. App. 3d 1016 (1991), cert. denied, 505 U.S.

1219 (1992) 16

Loretto v. Teleprompter Manhattan CATV Corp., |

458 U.S. 419 (1982) 27

Lucas v. South Carolina Coastal Council, 505 US.

1003 (1992) - passim

McCurley v. City of El Reno, 280 P. 467 (Okla.

1929) 24-25

McCutchan Estates Corp. v. Evansville-Vanderburgh

County Airport Auth. Dist., 580 N.E.2d 339 (Ind. Ct.

App. 1991) 16

- = =

Cases—Continued: Page

Miller v. Board of Pub. Works of City of L.A..

195 Cal. 477 (1925), error dismissed, 273 U.S. 781

(1927) - 24

Mobil Oil Exploration & Producing Southeast, Inc. v.

United Distribution Cos., 498 U.S. 211 (1991) ................ 22

Mont Belvieu Square, Ltd. v. City of Mont Belvieu,

27 F.. Supp. 2d 935 (S.D. Tex. 1998) = 16

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ........... 22

Nollan v. Californian Coastal Comm'n, 483 U.S.

SP GOD ceprennensnssnnssensomnameconmsnenensnsnesensutenmneneasessnsssusseneneseee 17

Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001) .... 9, 10, 13,

14, 15, 18, 25, 30

Penn Cent. Transp. Co. v. New York City, 438 US.

104 (1978) 5, 11, 24, 29

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

(1922) 9, 14, 17, 24

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........ 23

Sante Fe Vill. Venture v. City of Albuquerque,

914 F. Supp. 478 (D.N.M. 1995) ............-.cscecceccsscscsssereeensesees 16

SEC v. Chenery Corp., 332 U.S. 194 (1947) 22

Suitum v. Tahoe Reg’l Planning Agency,

520 U.S. 725 (1997) 2-3, 13, 21

Tocco v. New Jersey Council on Affordable Housing,

576 A.2d 328 (N.J. Super. Ct. 1990), cert. denied,

499 U.S. 987 (1991) : 16

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

GD ceercenenseenssssssnensessnsesasenoumeerveseenssnssennssnemssveneaqeeesonenseneneenss 27

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

ee 27

United States v. Riverside Bayview Homes, Inc.,

474 US. 121 (1985) 1, 12, 13, 19

United States Dep't of State v. Ray, 502 US.

164 (1991) 18

Western Coal Traffic League v. Surface Transp. Bd.,

216 F.3d 1168 (D.C. Cir. 2000) 22

VI

Cases—Continued:

Williams v. City of Central, 907 P.2d 701 (Colo.

| aL

Woodbury Place Partners v. City g Woodbury,

492 N.W.2d 258 (Minn. Ct. App. 1992), cert

denied, 508 U.S. 960 (1993) ............ -

Zilber v. Town of Moraga, 692 F. Supp. 1195

(N.D. Cal. 1988)

Constitution and statutes:

US. Const.:

Art. I, § 10, Cl. 1 (Contracts Clause) .. -

I ‘cctnnnateiatiannttinenennmnnsimme

Due Process Clause ............ssssssssesees

Just Compensation Clause 7

Amend. XIV (Equal Protection Clause)

Act of Dec. 18, 1969, Pub. L. No. 91-148, 83 Stat.

360 .

Act of Dec. 19, 1980, Pub. L. No. 96-551, 94 Stat.

EEE EERE EERE EEE EEE E EEE EEE EEEEEEEEEED

3233

Clean Air Act, 42 U.S.C. 7401 et seg. .

Clean Water Act, 33 U.S.C. 1251 et seg.

33 U.S.C. 1288

Lake Tahoe Restoration Act, Pub. L. No. 106-506,

114 Stat. 2351

Surface Mining Control and Reclamation Act of 1977,

30 U.S.C. 1201 et seq.

5 U.S.C. 555(b)

5 U.S.C. 706(1)

5 U.S.C. 706(2)

42 U.S.C. 1983

Cal. Gov’t Code (West):

§ 65806 (1995)

§ 65858 (1997 & Supp. 2001)

_— re oe -

ee ee a ee eee

VII

Miscellaneous:

Am Jur 2d, Zoning and Planning (1992 & Supp. May

SEPUED erstensensastennvancsnmtusenscunescnisesseneesensenemsemesssiesssssesteesssessesses 16

Robert H. Freilich, Interim Development Controls:

Essential Tools for Implementing Flexible Planning

and Zoning, 49 J. Urb. Law 65 (1971) c.cccccccccccscoccossessesees 21

Tahoe Regional Planning Agency, Environmental

Impact Statement for Adoption of a Regional Plan

for the Lake Tahoe Basin (Feb. 1983) ......ccccccesssessseesseen 29

Jn the Supreme Court of the Gnited States

No. 00-1167

TAHOE-SIERRA PRESERVATION COUNCIL, INC., ET AL.,

PETITIONERS

Vv.

TAHOE REGIONAL PLANNING AGENCY, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

Various acts of Congress provide for a federal agency to

regulate the permissible uses of privately-owned real prop-

erty, or for States to carry out such programs pursuant to

federal standards. See, e.g., Clean Water Act (CWA), 33

U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.; Sur-

face Mining Control and Reclamation Act of 1977, 30 U.S.C.

1201 et seg. The United States has a substantial interest in

the proper application of the Fifth Amendment’s Just Com-

pensation Clause to those regulatory efforts. See, e.g., United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126-

129 (1985) (rejecting takings challenge to Corps of Engineers

permitting program under CWA). In addition, respondent

Tahoe Regional Planning Agency was created by an inter-

state compact between California and Nevada that was ap-

proved by Congress. Act of Dec. 18, 1969, Pub. L. No. 91-

(1)

2

148, 83 Stat. 360; see also Act of Dec. 19, 1980, Pub. L. No.

96-551, 94 Stat. 3233 (amendments strengthening compact);

Lake Tahoe Restoration Act, Pub. L. No. 106-506, 114 Stat.

2351.

STATEMENT

1. The parcels of land at issue in this case are located in

environmentally sensitive areas around Lake Tahoe, an al-

pine lake of uniqe clarity and color, attributable in part to

the low levels of nutrients that have historically been pre-

sent in the water. Pet. App. 4; see id. at 60-61. Since the

1950’s, however, substantial development in the region has -

created impervious surfaces such as roads and houses that

accelerate the flow of nutrients into Lake Tahoe. /d. at 5, 63.

Rising nutrient levels stimulate the growth of algae, which

diminishes the lake’s clarity, alters its color, and jeopardizes

fish and other lake-dwelling animal species. /d. at 4, 63.

In 1969, in an effort to hait the accelerating environmental

damage to Lake Tahoe, Congress approved the bi-state Ta-

hoe Regional Planning Compact. Pub. L. No. 91-148, 83 Stat.

360; see Pet. App. 6, 65. The 1969 Compact set goals for the

protection and preservation of the lake and its surrounding

basin and created respondent Tahoe Regional Planning

Agency (TRPA) as the “single agency to coordinate and

regulate development in the Basin and to conserve its natu-

ral resources.” Lake Country Estates v. Tahoe Reg’l Plan-

ning Agency, 440 U.S. 391, 394 (1979); see Pet. App. 6, 65

As required by the 1969 Compact, respondent classified

lands in the Lake Tahoe Basin according to their environ-

mental sensitivity; those lands most prone to erosion, be-

cause they are either steeply sloped or located near streams

or wetlands, were designated as “high hazard,” while all

other lands were denominated “low hazard.” /d. at 6, 66-67.

In 1980, Congress approved amendments to the Compact

after it “had proven inadequate for protection of the lake and

its environment.” Suitum v. Tahoe Reg’l Planning Agency,

3

520 U.S. 725, 729 (1997); see Pub. L. No. 96-551, 94 Stat.

3233; Pet. App. 6-7, 68. The 1980 Compact directed re-

spondent, within 18 months and iin consultation with the

States of California and Nevada and various interested

agencies, to adopt “environmental threshold carrying capaci-

ties” for the region, including standards for air and water

quality, soil conservation, vegetation preservation, and

noise. Compact Arts. II(i), V(b); Suitwm, 520 U.S. at 729 n.1;

Pet. App. 7 n.3. The Compact further directed respondent to

amend its regional plan within 12 months after adoption of

the carrying capacities in order to achieve and maintain

those capacities and air and water quality standards. Com-

pact Art. V(c). The Compact also stated that it was neces-

sary in the meantime to “halt temporarily works of develop-

ment in the region which might otherwise absorb the entire

capability of the region for further development or direct it

out of harmony with the ultimate plan.” Jd. Art. VI(c). The

Compact therefore imposed a moratorium on certain large-

scale development and capped the number of building per-

mits that could be issued. See ibid.; see generally Pet. App.

7, 69-70. At the same time it was implementing the Com-

pact’s new requirements, respondent was also charged with

adopting a regional water quality plan under Section 208 of

the Clean Water Act, 33 U.S.C. 1288. See Pet. App. 68-69.

While working toward completion of the environmental

threshold carrying capacities, respondent adopted Ordinance

81-5 (see Pet. App. 168-169), which took effect on August 24,

1981. Jd. at 7, 70. Subject to certain exceptions, Ordinance

81-5 temporarily prohibited most residential and all commer-

cial construction on high hazard lands until a new regional

plan was completed. /d. at 70-74. As directed by the 1980

Compact, respondent adopted threshold carrying capacities

on August 26, 1982, approximately two months after the ex-

piration of the 18-month deadline set forth in the Compact.

Id. at 8, 74. Respondent began work on the new regional

plan but soon recognized that it would be unable to complete

4d

the plan within the prescribed 12 months. /d. at 8, 74-75.

Consequently, on August 26, 1983, respondent enacted Re-

solution 83-21 (see id. at 170-171), which suspended project

reviews and approvals and the acceptance of new permit

applications “pending adoption of the new regional plan.” Jd.

at 170. Resolution 83-21 was continued in effect until the

new plan was adopted on April 26, 1984, 32 months after re-

spondent had initially suspended most development on high

hazard lands. /d. at 8, 75.

2. On the day the 1984 regional plan was adopted, Cali-

fornia filed suit to block its implementation, arguing that the

plan’s land-use controls were not sufficiently stringent to

protect the Lake Tahoe Basin. Pet. App. 8, 76. Shortly

thereafter, the District Court for the Eastern District of

California blocked implementation of the new regional plan,

first with a temporary restraining order and subsequently

with a preliminary injunction. /d. at 8-9, 76-77. The prelimi-

nary injunction was affirmed on appeal, see California ex

rel. Van de Kamp v. Tahoe Regional Planning Agency, 766

F.2d 1308 (9th Cir. 1985), and it remained in place until a

revised regional plan was adopted in 1987. See Pet. App. 9,

77.

3. a. On June 25, 1984, petitioners filed parallel suits,

which were subsequently consolidated in the District of Ne-

vada, naming as defendants respondent TRPA, individual

members of its governing board, and the States of California

and Nevada. Pet. App. 9, 12, 77-78. Petitioners alleged vio-

lations of the Just Compensation, Due Process, Equal Pro-

tection, and Contracts Clauses, and they requested both

monetary and equitable relief. Jd. at 9, 78.

In the ensuing litigation, petitioners’ claims were divided

into four time periods: Period I (August 24, 1981, to August

26, 1983, when Ordinance 81-5 was in effect); Period II

(August 27, 1983, to April 25, 1984, when Resolution 83-21

was in effect); Period III (April 26, 1984, to July 1, 1987,

when the preliminary injunction against implementation of

5

the 1984 Plan was in effect); and Period 1V (July 2, 1987, to

the present, when the 1987 Plan has been in effect). Pet.

App. 9-10. Most of the claims were dismissed on various

grounds in a series of district court and court of appeals deci-

sions. See generally id. at 79-81. However, the claims of

some of the petitioners under 42 U.S.C. 1983 for just com-

pensation, premised on the theory that the land-use restric-

tions in effect during the various periods had effected a tak-

ing of petitioners’ property, remained pending. See Pet.

App. 82.

b. The district court held that petitioners’ claims re-

garding Period IV were barred by the applicable statutes of

limitations. Pet. App. 128-155. In a subsequent opinion, the

district court held that petitioners were entitled to just com-

pensation for Periods I and II, when Ordinance 81-5 and

Resolution 83-21 were in effect, but not for Period III. /d. at

57-127.

With respect to Periods | and II, the court first held that

“{ijf * * * [respondent’s] actions effected on!v a partial de-

nial of economically viable use,” then the test described in

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

U.S. 104 (1978), would apply and would “clearly lead[] to the

conclusion that there was no taking.” Pet. App. 88. Under

that test, the court explained, given the temporary nature of

the restrictions and the length of time property was typically

held in the Basin prior to development, petitioners did not

have reasonable investment-backed expectations in being

able to build single-family homes on their land while the

temporary moratorium was in effect. Jd. at 88-90. The court

further determined that the absence of any evidence “re-

garding the specific diminution in value of any of [petition-

ers’] individual properties,” as well as the “character of the

governmental action,” weighed against finding a taking un-

der Penn Central. Id. at 90. The court explained that re-

spondent “took the necessary steps” to “solv[e] a serious

problem,” while petitioners “retained many important rights

6

of property ownership, such as the right to exclude others

from their own land.” /d. at 91.

The district court nevertheless held that Ordinance 81-5

and Resolution 83-21 had effected a taking of petitioners’

property. The court concluded that Penn Central did not

govern because the ordinance and resolution had foreclosed

“all economically viable uses” of petitioners’ property during

the periods they were in effect and thereby resulted in a “to-

tal taking” of petitioners’ property under Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992). Pet. App.

92-101. The court rejected respondent’s contention that no

taking had occurred because Ordinance 81-5 and Resolution

83-21 were “reasonable temporary planning moratoria.” /d.

at 109-115. Although the court observed that it “d[id] not

see how TRPA could have reached agreement on a regional

plan any sooner” than it did, id. at 115, it read this Court’s

decisions in Lucas and First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304 (1987), to re-

quire compensation, at least where the relevant moratoria

did not provide for termination on a specified date. Pet.

App. 113-115.

Finally, the district court held that petitioners were not

entitled to compensation for Period III because the 1984 Re-

gional Plan was not the “proximate cause” of petitioners’ in-

ability to develop their land during that interval. Pet. App.

101-108. Rather, the court explained, “(t]he real cause of

[petitioners’] harm after the T.R.O. was entered was the ef-

fect of the T.R.O. and the Preliminary Injunction [see p. 4,

supra], not the 1984 Plan.” Jd. at 106.

4. The court of appeals affirmed in part and reversed in

part. Pet. App. 1-56.

a. The court of appeals reversed the district court’s

holding that petitioners were entitled to compensation for

the restrictions on development during Periods I and II.

Pet. App. 14-40. The court noted that “the only question”

7

before it was “whether a categorical taking occurred” under

Lucas, because petitioners had disavowed any reliance on

Penn Central’s ad hoc balancing approach. /d. at 18-19. The

court explained that, except in cases involving physical occu-

pation of real property, a landowner generally may not es-

tablish a taking by demonstrating an inability to use some

discrete segment of the land, even if the effect of the restric-

tion is to diminish the value of the property as a whole. /d.

at 20-27. The court found “no plausible basis on which to dis-

tinguish a similar diminution in value that results from a

temporary suspension of development.” Jd. at 27. The court

also concluded that “[iJn several ways, temporary develop-

ment moratoria promote effective planning,” ibid., and that

courts should be “exceedingly reluctant to adopt rulings that

would threaten the survival of this crucial planning mecha-

nism,” id. at 28.

b. The court of appeals affirmed the district court’s

holding that petitioners were not entitled to compensation

for Periods III and IV. Pet. App. 40-56. With respect to Pe-

riod III, the court determined (see id. at 40-47) that petition-

ers could not establish the requisite causal link between the

1984 Regional Plan and their inability to develop their prop-

erties because “the injunction issued [in the parallel lawsuit]

effectively prohibited the implementation of the 1984 Plan.”

Id. at 43. With respect to Period IV, the court agreed with

the district court that petitioners’ takings claims were bar-

red by the applicable statutes of limitations. Jd. at 47-56.

c. Five judges dissented from the denial of rehearing en

bane. Pet. App. 157-167. Those judges reasoned that “(t]he

only difference between this case and Lucas is that the

regulation here had a finite duration,” and they construed

this Court’s decision in First English to require compensa-

tion in this setting. Jd. at 159.

8

SUMMARY OF ARGUMENT

A. A characteristic feature of land-use regulation is the

requirement that a property owner obtain affirmative gov-

ernment authorization, typically in the form of a building

permit, before commencing substantial development. Such a

generally applicable permit requirement, and the attendant

inability to develop the land in the interim, are highly un-

likely to eliminate the value of real property, do not impose

inordinate burdens on isolated landowners, and are among

the background legal principles that serve to define the

landowner’s interests. The application of such permitting

requirements to a particular tract therefore does not raise

any serious issue under the Just Compensation Clause.

B. Temporary moratoria can serve an important function

in land-use planning and protection of critical natural re-

sources. Although a particular moratorium could give rise to

takings concerns because of its scope, duration, purposes, or

impact on certain landowners, the mere possibility of such

effects provides no justification for a categorical rule. Even

without announcing a formal development moratorium, a

permitting agency could consider overall patterns of actual

or anticipated development in ruling on individual permit ap-

plications, and it could defer action on individual applications

pending clarification or amendment of the substantive

permitting criteria. A formal, publicly-announced temporary

moratorium simply increases the predictability and trans-

parency of the land-management process. And like the re-

quirement of prior government approval for development of

an individual tract, the use of temporary moratoria covering

a broader area is a land-management tool with a well-estab-

lished tradition.

C. This Court’s decision in First English does not sup-

port petitioners’ claim of a per se taking. The Court in First

English specifically disavowed any suggestion that its hold-

ing encompassed government efforts to preserve the status

9

quo pending a final decision as to the propriety of develop-

ment. The Court’s decision focused on a question of rem-

edy—i.e., whether the government is constitutionally re-

quired to pay compensation for a proven taking—rather than

on the antecedent question whether a taking had occurred.

Likewise, the moratorium at issue here differs sharply from

the development ban in Lucas. The moratorium was tempo-

rary; it secured a reciprocity of advantage to a broad group

of landowners rather than imposing disproportionate bur-

dens on an isolated few; it did not effectively press private

land into public service; and it was rooted in well-established

background property-law principles.

ARGUMENT

A TEMPORARY DEVELOPMENT MORATORIUM, REA-

SONABLY DESIGNED TO PRESERVE THE STATUS

QUO PENDING COMPLETION OF A COMPREHEN-

SIVE LAND-USE PLAN, DOES NOT EFFECT A PER SE

TAKING OF PROPERTY

Until this Court’s decision in Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922), “it was generally thought that

the Takings Clause reached only a ‘direct appropriation’ of

property, or the functional equivalent of a ‘practical ouster of

{the owner’s] possession.’” Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1014 (1992) (citations omitted). The

Court has since concluded, however, that even where an

owner is not divested of title to or possession of real prop-

erty, land-use regulation may effect a compensable taking if

it trenches too severely upon the prerogatives that have tra-

ditionally accompanied ownership. See id. at 1014-1019;

Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2457 (2001). In

particular, regulation that permanently deprives the owner

of all economically beneficial use of land typically requires

the payment of just compensation even though it does not

involve a “direct appropriation” of the property involved.

10

Lucas, 505 U.S. at 1015-1016; see Palazzolo, 121 S. Ct. at

2457. |

Lucas does not support petitioners’ claim that a per se

taking occurs as a consequence of temporary development

restrictions that are intended to preserve the status quo

pending a final government decision regarding the permissi-

ble uses of the land. Significant development of real prop-

erty typically requires the prior approval of some official

body—most obviously in the form of a building permit—and

government has never been thought to “take” property sim-

ply by requiring that it be kept in its present state during

the pendency of a reasonable deliberative process. Although

a temporary development moratorium to allow land-use

authorities to determine appropriate permitting criteria is

different in some respects from the delay attendant to a

permitting process, there is no basis for petitioners’ cate-

gorical claim that such a moratorium constitutes a taking per

se.

Petitioners devote considerable rhetorical energy to the

assertion that the development restrictions at issue in this

case were in fact permanent. Those contentions disregard

the rulings by both courts below, unchallenged here, that

rejected petitioners’ takings claims for any period after

Resolution 83-21 expired in April 1984 (see pp. 5, 6, 7, supra),

and they are simply unresponsive to the question presented

as framed by this Court, which is expressly limited to

whether a “temporary moratorium” is an ipso facto taking.

See 121 S. Ct. 2589, 2589-2590 (2001). The Court’s disposi-

tion of that question, moreover, will control future cases in-

volving temporary moratoria, including those (presumably

the vast majority) in which development is permitted to go

forward after the moratorium expires. We therefore ad-

dress the question on which this Court granted certiorari:

whether the 32-month development moratorium imposed by

Ordinance 81-5 and Resolution 83-21 effected a taking of

property requiring payment of just compensation.

11

Petitioners do not contend in this Court that the process

of developing the 1984 Regional Plan was unduly protracted,

or that the development restrictions imposed by Ordinance

81-5 and Resolution 83-21 were more extensive than neces-

sary to preserve the status quo pending respondent’s devel-

opment of the environmental threshold carrying capacities

and completion of a new regional plan, as required by the

1980 Compact. Nor, more generally, do petitioners seek to

establish a taking under the multi-factor test set forth in

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

U.S. 104 (1978). The district court specifically found that re-

spondent could not have completed its plan more quickly

than it did and that there was no taking under Penn Central,

and on appeal petitioners disavowed any claim of a taking

under Penn Central. See pp. 6-7, supra. Petitioners raise

instead the categorical claim that any and all temporary

moratoria on the issuance of building permits are takings

under this Court’s decision in Lucas. In that context, the 32-

month moratorium should therefore be assumed to have

been reasonable in scope and duration, given its stated

objective.’

A. Substantial Development Of Real Property Typically

Requires The Prior Approval Of Land-Use Authori-

ties, And Reasonable Delays In Development Result-

ing From The Permit Application Process Do Not Ef-

fect A Taking

1. “{T)he authority of state and local governments to en-

gage in land use planning has been sustained against consti-

tutional challenge as long ago as [this Court’s] decision in

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).”

! The district court rejected as “completely meritless” petitioners’

earlier claim that respondent had “acted in bad faith in complying with the

[1980] Compact requirements.” Pet. App. 68. The court found that re-

spondent had “clearly approached its obligations under * * * the Com-

pact * * * with good faith and to the best of its ability.” /d. at 69.

12

Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). A charac-

teristic feature of land-use regulation is the requirement

that a property owner obtain the affirmative approval of a

designated governmental body before commencing substan-

tial development. This Court has never suggested that a

landowner’s inability to develop his property during the

per:nit application process presents a takings problem or

requires the payment of just compensation. Indeed, such a

claim runs councer to a number of this Court’s precedents.

For example, in United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 127 (1985), which concerned per-

mits issued by the Corps of Engineers for the filling of wet-

lands adjacent to navigable waters, the Court observed that

“{a] requirement that a person obtain a permit before en-

gaging in a certain use of his or her property does not itself

‘take’ the property in any sense: after all, the very existence

of a permit system implies that permission may be granted,

leaving the landowner free to use the property as desired.”

The Court concluded that “{oJnly when a permit is denied

and the effect of the denial is to prevent ‘economically viable’

use of the land in question can it be said that a taking has

occurred.” /bid. That analysis is inconsistent with any claim

that a permit requirement causes a temporary taking when-

ever its effect is to prevent economically viable use of land

during the application process.

In the same vein, the Court in Agins v. City of Tiburon,

447 U.S. 255 (1980), explained (in the context of municipal

precondemnation activities) that “[mJere fluctuations in

value during the process of governmental decisionmaking,

absent extraordinary delay, are ‘incidents of ownership.

They cannot be considered as a “taking” in the constitutional -

sense.” Jd. at 263 n.9 (quoting Danforth v. United States,

308 U.S. 271, 285 (1939)).

Any theory under which a taking would be deemed to

have occurred as 2 result of the time required for landowners

and responsible governmental officials to comply with and

13

implement permit requirements would also be inconsistent

with this Court’s ripeness jurisprudence. A plaintiff who

asserts a regulatory takings claim must generally “allow

regulatory agencies to exercise their full discretion in con-

sidering development plans for the property, including the

opportunity to grant any variances or waivers allowed by

law. As a general rule, until these ordinary processes have

been followed the extent of the restriction on property is not

known and a regulatory taking has not yet been estab-

lished.” Palazzolo, 121 S. Ct. at 2459; accord Suitum v. Ta-

hoe Reg’l Planning Agency, 520 U.S. 725, 733-739 (1997).

That analysis necessarily presumes that a permit require-

ment does not itself effect a taking, even when it temporarily

prevents economically viable use of the land pending a final

decision by the agency.

2. It follows a fortiori that a temporary prohibition on

development pending completion of the permit application

process does not constitute a per se taking under Lucas.

The rationales on which the Court relied in Lucas are inap-

plicable in that context.

First, because “the very existence of a permit system im-

plies that permission may be granted,” Riverside Bayview,

474 U.S. at 127, a temporary bar on development for the du-

ration of the permitting process leaves open the potential for

future productive uses and is therefore exceedingly unlikely

to eliminate the property’s value, even on a temporary basis.

Accordingly, in contrast to the permanent construction ban

at issue in Lucas, which “rendered valueless” the plaintiff's

beachfront lots, 505 U.S. at 1020, a temporary development

ban incident to the permitting process cannot reasonably be

regarded as the practical “equivalent of a physical appro-

priation,” id. at 1017.

Second, the Court in Lucas emphasized that “in the ex-

traordinary circumstance when no productive or economi-

cally beneficial use of land is permitted,” development re-

strictions cannot reasonably be assumed to “secure[] an ‘av-

14

erage reciprocity of advantage’ to everyone concerned.” 505

U.S. at 1017-1018 (quoting Mahon, 260 U.S. at 415). There is

nothing in the least “extraordinary,” however, about land-

use regulation that requires everyone to obtain prior gov-

ernment authorization for significant development within a

defined geographic area. Such generally applicable require-

ments do not remotely implicate “the purpose of the Takings

Clause, which is to prevent the government from ‘forcing

some people alone to bear public burdens which, in all fair-

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

Palazzolo, 121 S. Ct. at 2457-2458 (quoting Armstrong v.

United States, 364 U.S. 40, 49 (1960)). Rather, the require-

ment of prior government approval secures a reciprocity of

advantage to landowners within the relevant area by pro-

viding greater assurance that restrictions intended to fur-

ther the interests of the community as a whole will be en-

forced in a consistent manner. Cf. Agins, 447 U.S. at 262

(“The zoning ordinances benefit the appellants as well as the

public * * * in assuring careful and orderly development of

residential property.”).

Third, the Court concluded in Lucas that “the functional

basis for permitting the government, by regulation, to affect

property values without compensation”—that “Government

hardly could go on” if it were required to pay for every dimi-

nution in value caused by regulation, see Mahon, 260 U.S. at

413—does not apply to the “relatively rare situations where

the government has deprived a landowner of all economically

beneficial uses” of property on a permanent basis. 505 U.S.

at 1018. That functional basis plainly does apply, however, to

the effects of a prior-approval requirement that is applicable

to all owners of property in the vicinity.

Fourth, a permit requirement does not “carry with [it] a

heightened risk that private property is being pressed into

some form of public service.” Lucas, 505 U.S. at 1018. In

particular, the general rule that land must remain undevel-

oped during the period necessary for compliance with the

15

permit process does not reflect a determination that any

given parcel of land should be preserved in its natural state

on a permanent basis to further a public interest. That rule

serves instead to assure the integrity of the permitting proc-

ess by maintaining the status quo until land-use officials

have reached a final decision regarding the propriety of de-

velopment on any particular tract.

Finally, even when land-use regulation prevents all eco-

nomically beneficial use of a parcel on a permanent basis, the

Fifth Amendment does not require the payment of just com-

pensation if the pertinent restriction is derived from “back-

ground principles of the State’s law of property and nui-

sance”—i.e., “those common, shared understandings of per-

missible limitations derived from a State’s legal tradition.”

Palazzolo, 121 S. Ct. at 2464; see Lucas, 505 U.S. at 1029-

1031. The rule that significant development of real property

requires prior government approval likewise constitutes an

established background principle. “{A]bsent extraordinary

delay” in that process, any economic loss that a landowner

may suffer as a result of the temporary inability to develop

his property while he is seeking a permit is simply an “inci-

dent{] of ownership.” Agins, 447 U.S. at 263 n.9.

Significantly, moreover, a permitting system typically is

subject to built-in protections against “extraordinary delay.”

Federal permitting agencies, for example, are subject to the

requirement in the Administrative Procedure Act that,

“(with due regard for the convenience and necessity of the

parties or their representatives and within a reasonable

time, each agency shall proceed to conclude a matter pre-

sented to it.” 5 U.S.C. 555(b) (emphasis added). That duty is

judicially enforceable under 5 U.S.C. 706(1), which author-

izes a district court to “compel agency action unlawfully

withheld or unreasonably delayed.” What constitutes a

“reasonable” time may vary from case to case and must take

into account the steps the agency must take to assess the

proposed development. But the existence of that statutory

16

protection and the right to enforce it essentially remove any

basis for a takings claim resulting from the implementation

of the permit process itself.

B. A Reasonable Moratorium On Development Pending

Completion Of A Comprehensive Land-Use Plan Does

Not Constitute A Per Se Taking Under Lucas

The question in this case is whether a temporary devel-

opment moratorium intended to preserve the status quo

pending the government’s adoption of a comprehensive land-

use plan constitutes a per se taking under Lucas. For a

number of reasons, treatment of such moratoria as per se

takings is unwarranted.

2 Courts have consistently held that development moratoria adopted

by local governments pending study and formulation of land-use plans do

not effect a taking. See, e.g. Jackson Court Condominiums, Inc. v. City of

New Orleans, 874 F.2d 1070, 1080-1082 (5th Cir. 1989); Mont Belvieu

Square, Ltd. v. City of Mont Belvieu, 27 F. Supp. 2d 935, 942-943 (S.D.

Tex. 1998); Zilber v. Town of Moraga, 692 F. Supp. 1195, 1206-1207 (N.D.

Cal. 1988); Kelly v. Tahoe Reg’l Planning Agency, 855 P.2d 1027, 1032-

1035 (Nev. 1993), cert. denied, 510 U.S. 1014 (1994); Long Beach Equities,

Inc. v. County of Ventura, 231 Cal. App. 3d 1016, 1035-1036 (1991), cert.

denied, 505 U.S. 1219 (1992); Tocco v. New Jersey Council’ on Affordable

Housing, 576 A.2d 328, 329-331 (N.J. Super. Ct. 1990), cert. denied, 499

U.S. 987 (1991); First English Evangelical Lutheran Church v. County of

L.A., 210 Cal. App. 3d 1353, 1372-1374 (1989), cert. denied, 493 U.S. 1056

(1990); McCutchan Estates Corp. v. Evansville-Vanderburgh County

Airport Auth. Dist., 580 N.E.2d 339, 342-343 (Ind. Ct. App. 1991); see also

83 Am. Jur. 2d, Zoning and Planning §§ 161-163 (1992 & Supp. May 2001).

The courts have reached that conclusion even where development

moratoria allegedly denied owners all economically viable use of their

property for a temporary period, so long as the moratoria were of rea-

sonable duration and reasonably necessary to further the public welfare.

See, e.g., Santa Fe Vill. Venture v. City of Albuquerque, 914 F. Supp. 478,

483 (D.N.M. 1995); Williams v. City of Central, 907 P.2d 701, 703-706

(Colo. Ct. App. 1995); Woodbury Place Partners v. City of Woodbury, 492

N.W.2d 258, 260-263 (Minn. Ct. App. 1992), cert. denied, 508 U.S. 960

(1993). ;

17

1. Temporary moratoria differ in certain respects from

the postponement of development that necessarily results

from the requirement of prior government approval of indi-

vidual permit applications. Development moratoria typically

are formally and publicly adopted by the legislature or

responsible agency, and they apply generally and uniformly

to a given category of property. They may serve a range of

purposes, from affording time to study the impacts of antici-

pated development, to preparing new permitting criteria, to

allowing for the installation of new infrastructure. Such

temporary measures can promote iesponsible regulation and

sound development in ways that the individualized per-

mitting process sometimes cannot. See generally Pet. App.

27-28.

At the same time, because a moratorium (like the prohibi-

tion against development during the permit process) is de-

signed to maintain the status quo for a temporary period

pending the completion of governmental action, it typically

does not interfere with any existing uses of property or with

such essential aspects of the bundle of property rights as the

right to exclude others, see Nollan vy. California Coastal

Comm’n, 483 U.S. 825 (1987), to sell the property, see An-

drus v. Allard, 444 U.S. 51 (1979), or td transfer it by devise

or intestacy, see Hodel v. Irving, 481 U.S. 704 (1987). For

these reasons, there is nothing inherent in the nature of a

temporary moratorium on new development to suggest that

all such moratoria should be held to be takings through an

extension of Lucas’s per se rule.

2. The court of appeals judges who dissented from denial

of rehearing en banc suggested that categorical treatment of

temporary moratoria as per se takings is necessary to pre-

vent land-use agencies from “enact[ing] one moratorium af-

ter another, perhaps indefinitely.” Pet. App. 164. The possi-

bility that a particular interim restriction might be abused or

go “too far,” Mahon, 260 U.S. at 415, however, provides no

basis for a categorical rule covering all moratoria, regardless

18

of their scope, duration, and purpose, and the degree of de-

velopment permitted at their conclusion. The per se rule an-

nounced in Lucas has never been invoked as a broad pro-

phylactic, but instead has been reserved for the “extraordi-

nary circumstance” (Lucas, 505 U.S. at 1017) in which land-

use regulation operates as the functional equivalent of a di-

rect appropriation of property.’ Rather, an allegation that a

particular moratorium is unreasonably protracted or unduly

broad in scope—or that it is not justified by its stated objec-

tive or imposes inordinate burdens on isolated landown-

ers—can be more appropriately and fully addressed under

the Penn Central framework that governs regulatory tak-

ings claims generally. See Palazzolo, 121 S. Ct. at 2467

(O’Connor, J., concurring) (“The temptation to adopt what

amount to per se rules in either direction must be resisted.”).

3. Petitioners attempt to distinguish the temporary

moratorium at issue here from the permit application proc-

ess, on the ground that a landowner who seeks a develop-

ment permit “is participating with the expectation—or at

least the possibility—of obtaining development permission

at the conclusion.” Pet. Br. 28. But the same presumption

should be accorded the moratorium in this case. Indeed, the

process of fashioning the 1984 Regional Plan entailed “ex-

tensive public involvement,” California ex rel. Van de Kamp

v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1311

(9th Cir. 1985), including participation by affected land-

owners. And the announcement of a temporary development

3 There is no basis, either in this case (see note 1, supra) or generally,

for denying state and federal !and-use regulators the “presumption of

legitimacy,” United States Dep't of State v. Ray, 502 U.S. 164, 179 (1991),

that is generally accorded to the conduct of government officials. Takings

claimants should, of course, be given an adequate opportunity to prove

that particular governmental actions are abusive or irrational. But given

the strong legitimate justifications for such temporary development

moratoria, see Pet. App. 27-28, use of such planning mechanisms cannot

fairly be presumed to reflect governmental bad faith.

19

ban certainly implied at least the possibility that petitioners

and others could “obtain[{] development permission at the

conclusion.” Pet. Br. 28; compare Riverside Bayview Homes,

474 US. at 127.

A temporary development moratorium may understanda-

bly be regarded by some property owners as increasing the

burdens associated with the underlying permit requirement.

Because a moratorium typically prevents the permit process

from going forward at all, see Pet. App. 113, once the mora-

torium expires, a landowner will then confront whatever fur-

ther delays the permitting process itself entails. In addition,

the practical effect of a moratorium is to suspend the appli-

cation of substantive criteria to potential development pro-

jects while it remains in effect; where (as here) it is contem-

plated that new criteria will be issued at the end of the

moratorium, it may also introduce an added measure of un-

certainty as to whether (or to what extent) development of

any particular tract will be allowed. And, finally, because no

land-use agency is likely to employ moratoria on a routine

basis, the bases for challenging the agency’s conduct of the

permitting process may be more familiar and better estab-

lished than the grounds for contesting a moratorium as arbi-

trary or factually unjustified. See 5 U.S.C. 706(2).

In the end, however, those differences in the nature or

perception of a moratorium as compared with the ordinary

operation of a permitting process either are differences in

degree or reflect merely an unsettling of unilateral or sub-

jective expectations concerning possible future development

that are not in themselves protected by the Just Compensa-

tion Clause. Those generalizations do not justify categorical

treatment of development moratoria as per se takings.

Agency permitting processes (and the experience of dif-

ferent landowners in seeking permits under them) will

themselves vary widely in their duration and complexity.

The fact that a particular application process (or a particular

landowner’s invocation of that process) lasts longer—per-

20,

haps even much longer—than the average does not neces-

sarily mean that the relevant agency has behaved unrea-

sonably under the circumstances or that a taking has oc-

curred. The per se rule described in Lucas applies by its

terms “where regulation denies all economically beneficial or

productive use of land,” 505 U.S. at 1015; the burden on the

landowner that in extreme cases justifies a categorical ap-

proach is the inability to develop the property, not the in-

ability to have a permit application accepted for processing.

If a particular moratorium significantly increases the total

period during which a landowner is unable to develop his

property, that difference in degree may be relevant to the

Penn Central analysis, but it does not amount to a difference

in kind warranting application of a per se rule. In fact, the

agency’s resolution of recurring factual and policy issues

during a planning moratorium may expedite its subsequent

processing of individual permit applications.

Because a land-use agency’s consideration of individual

permit applications cannot be accomplished overnight, any

legal regime that requires prior government approval has

the necessary practical effect of temporarily foreclosing sig-

nificant development during the application process. The

requirement of prior government authorization thus reflects

a “conscious governmental decision to freeze temporarily all

use of property” (Pet. Br. 12) until the government has

reached a final decision, even though the postponement of

development is simply a means of preserving the status quo

rather than an end in itself. Similarly here, the freeze on

processing permits for new development was not imposed

for its own sake, but was instead the byproduct of the com-

plex and time-consuming nature of the planning process that

was required before development could proceed. Although

respondent’s decision to postpone processing of development

permits until it completed the regional plan required by the

Compact may have been more definitive and extensive than

is typically the case when a land-use agency takes a particu-

————— —

21

lar permit application under advisement, that is scarcely a

reason to treat the moratorium as a per se taking. Indeed,

the features of a moratorium that might cause it to strike

some landowners as unfair might also be seen as characteris-

tics of orderliness, regularity, and equality of treatment in a

planning process that will affect the entire community. In

particular, the moratorium prevents the possibility that

some landowners will be able to proceed ir. ways detrimental

to remaining landowners.

4. In determining whether proposed construction should

be permitted on an individual parcel, a land-use agency im-

plements broader policy goals. See, e.g., Switum, 520 U.S. at

738 (noting “the high degree of discretion characteristically

possessed by land-use boards”). A rational system of land-

use regulation seeks to ensure that similarly-situated prop-

erty owners are treated equitably, and that permitting deci-

sions on individual tracts reflect an awareness of actual or

anticipated development in the surrounding area. A permit-

ting agency that is simultaneously considering several de-

velopment applications for tracts in close proximity to each

other would be expected to assess the likely cumulative im-

pacts of the various proposals, and might reasonably decline

to render a final decision on any of the applications until it

had determined the appropriate disposition of them all. Ifa

significant change in the applicable development criteria was

known to be imminent, a rational agency could take that fact

into account as well in ruling on a pending permit applica-

tion.‘

4 As one commentator has explained, “(t]he courts have long upheld

the right of a municipality to deny administratively a building permit to a

developer where the use would conflict with a proposed change in the

zoning ordinance which has been aired at public hearing or published in a

newspaper of general circulation.” Robert H. Freilich, Interim Develop-

ment Controls: Essential Tools for Implementing Flexible Planning and

Zoning, 49 J. Urb. Law 65, 86 (1971).

22

By the same token, if significant doubt exists as to what

substantive land-use standards will be adopted in the near

future, a rational permitting agency would certainly consider

delaying action on a pending application until the new stan-

dards were adopted. A contrary approach would simply ex-

acerbate the risk that owners of adjacent parcels will be sub-

ject to substantially different long-term use’ restrictions

based on the fortuity that one owner submits a development

application slightly before the other. That result would be at

odds both with sound land-management principles and with

the values that the Just Compensation Clause is intended to

protect.

Thus, with or without the use of formal temporary devel-

opment moratoria, land-management agencies could legiti-

mately defer action on individual permit applications pend-

ing clarification or amendment of the substantive permitting

criteria. Indeed, in a variety of situations, the courts have

recognized the authority of federal administrative agencies

to suspend action on permit requests or similar applications

pending consideration of possible changes to the governing

standards. See, e.g., Western Coal Traffic League v. Surface

Transp. Bd., 216 F.3d 1168, 1172-1176 (D.C. Cir. 2000) (dis-

cussing cases). Moreover, this Court has long recognized

that “(ijn performing its important functions * * *, an

administrative agency must be equipped to act either by

general rule or by individual order. To insist upon one form

of action to the exclusion of the other is to exalt form over

necessity.” SEC v. Chenery Corp., 332 U.S. 194, 202 (1947);

see, e.g., Mobil Oil Exploration & Producing S.E., Inc. v.

United Distribution Cos., 498 U.S. 211, 228 (1991); Heckler v.

Campbell, 461 U.S. 458, 461, 467-468 (1983); NLRB v. Bell

Aerospace Co., 416 U.S. 267, 292-294 (1974).

The Just Compensation Clause does not deprive a land-

use agency of that flexibility and require it to adopt a system

of case-by-case adjudication rather than rulemaking—or

case-by-case deferral of individual permit applications rather

23

than a moratorium of general applicability—when the agency

considers a problem that relates to a number of separate

parcels. A formal, publicly-announced temporary mora-

torium while the agency develops criteria of general applica-

bility increases the predictability and transparency of the

land-management process, and it provides an opportunity for

broad public input that would be lacking if the agency sought

to resolve recurring factual or legal issues in the ad hoc

process of individual permit processing. Treatment of ex-

press development moratoria as per se takings would create

perverse incentives for land-use agencies to perform their

functions in a less systematic and accountable way.

5. Landowners who had not already obtained a building

permit at the time the temporary moratorium went into ef-

fect would not have had any reasonable expectation that

they would be able to develop their property immediately.

Any such “unilateral expectation” on a landowner’s part

would have been inconsistent with the established require-

ment that a landowner obtain a permit before commencing

construction. Compare Ruckelshaus v. Monsanto Co., 467

U.S. 986, 1005-1008 (1984). Moreover, although zoning or

other laws in effect prior to the temporary moratorium

might have allowed the landowners to obtain a permit for

certain development if they had applied for one, the land-

owners had no property interest in being able to do so, and

the responsible legislatures and land-use agencies were free

to amend the applicable laws, regulations, and plans.

Under the law of both California and Nevada, as under the

law of many States, a landowner ordinarily attains a “vested

right” to proceed with development despite an intervening

change in the law only if he has already received a permit

and committed substantial resources in reliance thereon.

See, e.g., Avco Cmty. Developers, Inc. v. South Coast Reg’!

Comm'n, 17 Cal. 3d 785, 791 (1976), cert. denied, 429 U.S.

1083 (1977); American W. Dev., Inc. v. City of Henderson,

111 Nev. 804, 807 (1995). Only at that point does a landowner

24

have distinct investment-backed expectations, and a distinct

property-type interest (beyond his ownership of the land it-

self) in being able to proceed immediately with development.

Compare Penn Central, 438 U.S. at 127-128; Mahon, 260

U.S. at 412, 414. These longstanding state-law principles are

entitled to substantial weight in applying the Just Compen-

sation Clause to this setting. See Dolan, 512 U.S. at 388-391.

6. As the court of appeals recognized, temporary devel-

opment moratoria represent “an important land-use plan-

ning tool with a well-established tradition.” Pet. App. 27; see

id. at 109 (“[zjoning boards, cities, counties, and other agen-

cies [have historically] used [interim planning moratoria] all

the time to maintain the status quo pending study and gov-

ernmental decision making”) (internal quotation marks omit-

ted). As early as 1925, the California Supreme Court sus-

tained the validity of an emergency interim ordinance that

prohibited the construction of multi-family dwellings in part

of Los Angeles while a comprehensive zoning plan was con-

templated. Miller v. Board of Pub. Works of City of L.A.,

195 Cal. 477, 496-497 (1925), error dismissed, 273 U.S. 781

(1927). The court explained:

It is a matter of common knowledge that a zoning plan

of the extent contemplated in the instant case cannot be

made in a day. Therefore, we may take judicial notice of

the fact that it will take much time to work out the de-

tails of such a plan and that obviously it would be de-

structive of the plan if, during the period of its incuba-

tion, parties seeking to evade the operation thereof

should be permitted to enter upon a course of construc-

tion which might progress so far as to defeat in whole or

in part the ultimate execution of the plan.

195 Cal. at 496. Other courts of the same era likewise upheld

the validity of interim land use planning ordinances. See,

e.g., Downham v. City Council, 58 F.2d 784, 788 (E.D. Va.

1932); Fowler v. Obier, 7 S.W.2d 219, 226 (Ky. 1928); Mc-

25

Curley v. City of El Reno, 280 P. 467, 469-472 (Okla. 1929);

City of Dallas v. Meserole, 155 S.W.2d 1019, 1022-1023 (Tex.

Civ. App. 1941). In 1953, the California Legislature enacted

a law that essentially codified the principles of the Miller

rule. Cal. Gov’t Code § 65806 (West 1955), superseded by

Cal. Gov’t Code § 65858 (West 1997 & Supp. 2001).

The moratorium at issue in this case, and the moratorium

imposed by the Compact itself, were intended “to halt tem-

porarily works of development in the region which might

otherwise absorb the entire capability of the region for fur-

ther development or direct it out of harmony with the ulti-

mate plan.” 1980 Compact, Art. VI(c). The challenged

moratorium therefore fits comfortably within an established

land-management tradition. The potential application of

interim development restrictions designed to maintain the

status quo pending completion of a comprehensive plan—like

the requirement of affirmative government authorization as

a precondition for significant development of an individual

tract (see pp. 11-16, supra)—is among the “background

principles” (Palazzolo, 121 S. Ct. at 2464) that have long

served to define the property interests of landowners within

the Lake Tahoe region. So long as the 32-month moratorium

at issue here was reasonable in scope and duration—a

proposition that petitioners do not here contest—it did not

give rise to a taking, even if it foreclosed immediate

economically beneficial use of some parcels during the period

that it was in effect.

C. This Court’s Decision In First English Does Not Sug-

gest That A Temporary Development Moratorium Ef-

fects A Per Se Taking Of Property

1. The Court in First English specifically noted that its

decision “d[{id] not deal with the quite different questions

that would arise in the case of normal delays in obtaining

building permits, changes in zoning ordinances, variances,

and the like which are not before us.” 482 U.S. at 321 (em-

phasis added). The Court thus disavowed any suggestion

that its holding encompassed government efforts to preserve

the status quo pending a final decision as to the propriety of

development. The underscored language, moreover, indi-

cates that the Court did not distinguish between delays re-

sulting from the government’s application of existing per-

mitting standards to individual permit applications and de-

lays resulting from actual or anticipated changes to the stan-

dards themselves.

2. In First English, the Court held that “where the gov-

ernment’s activities have already worked a taking of all use

of property, no subsequent action by the government can

relieve it of the duty to provide compensation for the period

during which the taking was effective.” 482 U.S. at 321. In

holding that the case was ripe for decision, the Court empha-

sized that the California Court of Appeal had assumed the

existence of a taking, but had nevertheless affirmed the trial

court’s dismissal of the landowner’s claim for damages on the

ground that the remedy for any taking was limited to equi-

table relief. Jd. at 311. This Court found that “(t]he [state

court’s} disposition of the case on these grounds isolates the

remedial question for our consideration.” Jbid. The holding

of First English was thus limited to the appropriate relief

for an established (or assumed) taking; the Court did not de-

cide the antecedent question whether a taking had occurred.

3. The Court in First English framed the question pre-

sented as whether the Constitution “require[s] compensation

as a remedy for ‘temporary’ regulatory takings—those

regulatory takings which are ultimately invalidated by the

courts.” 482 U.S. at 310. The Court thus focused on devel-

opment restrictions that are “retrospectively temporary,”

Pet. App. 11l—ie., that are intended when adopted to be

permanent and are “rendered temporary only when an ordi-

nance that effects a taking is struck down by a court,” id. at

30. Absent a requirement to pay compensation in that set-

ting, a governmental body could impose draconian con-

27

straints on development, defend against the ensuing takings

claims in court, and simply rescind the offending regulation

without financial liability if the litigation terminated unfa-

vorably. A development moratorium that is intended from

the outset to remain in effect only for a limited period raises

no comparable danger of manipulation.

4. In discussing the remedial issue in First English, the

Court observed, by way of analogy, that “(t]he United States

has been required to pay compensation for leasehold inter-

ests of shorter duration than” the period (slightly less than

seven years) between the effective date of the challenged

land-use restriction and the California Supreme Court’s de-

nial of review. 482 U.S. at 319. As the district court in this

case pointed out, at least two of the cases on which the First

English Court relied “involved appropriations of property

that were prospectively temporary—the government had

appropriated leasehold interests with fixed termination

dates.” Pet. App. 114. The district court believed that anal-

ogy in First English supported the finding of a taking here.

Ibid.

The district court was mistaken for two reasons. First,

this Court has distinguished for takings purposes between a

permanent physical occupation and a temporary physical in-

vasion of real property. See Loretto v. Teleprompter Man-

hattan CATV Corp., 458 U.S. 419, 428, 433, 444 (1982); Lu-

cas, 505 U.S. at 1015, 1028-1029. Any analogy between

physical and regulatory takings therefore does not support

the view_that a temporary ban on economically productive

uses of land effects a per se taking. Cf. Block v. Hirsh, 256

U.S. 135, 157 (1921) (Holmes, J.) (“A limit in time, to tide

over a passing trouble, well may justify a law that could not

be upheld as a permanent change.”).

Second, in the cases involving leasehold interests to which

the district court referred—United States v. Petty Motor

Co., 327 U.S. 372 (1946), and United States v. General Mo-

tors Corp., 323 U.S. 373 (1945)—the governmental action

28

ousted the private occupant in favor of the government’s oc-

cupying and using the property for its own purposes It

therefore would have constituted a taking if the property

had never been leased. Here, by contrast, the moratorium

resulted in no interference with petitioners’ right to exclude

others from their property, no occupation or use of the prop-

erty by the government for its own purposes, and no depri-

vation of any other fundamental “stick” in the bundle of

rights associated with property.

The Court may nevertheless assume, arguendo, 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, rather

than under Penn Central. That would be so, however, only

if the regulation precluded all economically viable use of

property during the period it was in effect and also shared

the other characteristics of the regulation that was found in

Lucas to be a per se taking—z.e., if the regulation imposed

markedly disproportionate burdens on isolated landowners

rather than securing a reciprocity of advantage to a broad

community, effectively pressed private property into public

service (albeit for a finite period), and represented a signifi-

cant departure from background property-law principles.

Compare Lucas, 505 U.S. at 1017-1018, 1029-1031. That test

_ is not satisfied in this case. Although the district court found

(and the court of appeals assumed for purposes of its deci-

sion) that petitioners’ tracts were insusceptible of any eco-

nomically beneficial use during the 32-month period the

moratorium was in effect, see Pet. App. 96-101, 33-34 n.20, in

all other respects the moratorium differs sharply from the

prohibition involved in Lucas.

As the district court found, the temporary development

restrictions at issue in this case “had wide-spread applica-

tion, and were not aimed at an individual landowner.” Pet.

App. 86; compare Lucas, 505 U.S. at 1008 (noting that the

plaintiff's “intention with respect to the lots was to do what

29

the owners of the immediately adjacent parcels had already

done: erect single-family residences”).° The moratorium se-

cured a reciprocity of advantage to landowners in the Lake

Tahoe area. Because the value of petitioners’ tracts is ulti-

mately dependent on the preservation of the region’s natural

beauty, respondent’s efforts to prevent unconstrained devel-

opment on a temporary basis during an orderly planning

process thus benefited petitioners as well as other landown-

ers and the general public. See Kelly v. Tahoe Reg’l Plan-

ning Agency, 855 P.2d 1027, 1035 (Nev. 1993), cert. denied,

510 U.S. 1041 (1994).

The moratorium did not reflect a final determination that

maintenance of the relevant lands in their natural state was

necessary or desirable for its own sake. It was instead

adopted simply to preserve the status quo pending comple-

tion of a comprehensive regional plan. Its promulgation

therefore creates no “heightened risk that private property

is being pressed into some form of public service.” Lucas,

505 U.S. at 1018.

Finally, requiring a landowner to defer development for a

reasonable period, while government officials determine

whether improvement of the land is consistent with criteria

5 The 32-month moratorium affected approximately 8000 to 9000

undeveloped single-family lots in the Lake Tahoe Basin in the early 1980's.

See J.A. 74-75. Less than half of the acreage zoned for residential de-

velopment in the Basin was actually developed when the TRPA morato-

rium was instituted. See Tahoe Regional Planning Agency, Environ-

mental Impact Statement for Adoption of a Regional Plan for the Lake

Tahoe Basin 11 (Feb. 1983). The fact that the moratorium was limited to

new development, and did not require the destruction of existing

buildings, is neither anomalous nor unfair. Respondent's decision not to

disturb existing uses of land in the Basin was consistent with traditional

regulatory practice. See, e.g., Penn Central, 438 U.S. at 125 (“Zoning laws

generally do not affect existing uses of real property.”). A requirement

that existing homes be leveled, moreover, would have destroyed distinct

property interests of their owners—i.e., the houses themselves—that the

owners of undeveloped parcels did not have.

30

that are necessary to protect vital natural resources, fully

accords with applicable background property-law princi-

ples—“those common, shared understandings of permissible

limitations derived from a State’s legal tradition.” Palaz-

zolo, 121 S. Ct. at 2464. The requirement of prior govern-

ment authorization of significant development was “a pre-

existing limitation upon the landowner’s title.” Lucas, 505

U.S. at 1028-1029. Respondent might have deferred ruling

on any particular permit application for a reasonable period

of time pending completion of the 1984 Regional Plan, with-

out effecting a taking of the parcel for which development

authorization was sought. The formal announcement that a

temporary development ban would also apply to other par-

cels benefits rather than injures the parcel owner, and it

provides no basis for triggering a per se constitutional rule.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

JOHN C. CRUDEN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

PETER H. OPPENHEIMER

Attorney

NOVEMBER 2001