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

Supreme Court, U.S.

y TILED

Setkember 1a Iool Rae

No. 00-1167 CLERK

In the

Supreme Court of

the United States

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

Petitioners,

Vv.

TAHOE REGIONAL PLANNING AGENCY, &7 AL.,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE

OF DEFENDERS OF PROPERTY RIGHTS

IN SUPPORT OF PETITIONER

Nancie G. Marzul!la*

Brenda D. Smith

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

(202) 822-6770

*Counsel of Record for Amicus Curiae

vee

QUESTION PRESENTED

Amicus curiae will address the following question:

Whether the Ninth Circuit erred in holding that a

temporary planning moratorium cannot constitute a temporary

taking under the Fifth Amendment of the U.S. Constitution?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........cssseccscccccccccccsecses il

TABLE OF AUTHORITIOG ..ccccccccccccccssccssssessoseses iv

INTEREST OF AMICUS CURIAE ........cccsscsssesseeseeeesees 2

STATEMENT OF THB CASE. ..ccccccsoccccsscssosccsscosescsssescssses 3

SUMMARY OF ARGUMENT ...........::0csceeeseeseeeevess 5

PET IGE ccocescssarsesssncersinnnitininiel 7

I. Whether Permanent or Temporary, a

Taking of All Economically Beneficial

Use of Property Demands Payment of

Just COMRORIGEGD 0 <cccsaccritensianssessenipeniiain 7

Il. The Court Below Erred in Holding that a

Temporary Planning Moratorium Cannot

Constitute a Temporary

TREE, coccccncecccososcsscsenncssnensameunmasaanel 12

CR IG ccnccecsscosscensconsesntensnesuniiianmmmanaaas 16

TABLE OF AUTHORITIES

Page

Cases:

Agins v. Tiburon, 447 U.S. 255 (1980)...........cccceccceeees 16

Armstrong v. United States, 364 U.S 40 (1960).............. 8

Bennett v. Spear, 520 U.S. 154 (1997)..............cccecc eee 2

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

EES 2

Dolan v. City of Tigard, 512 U.S. 374 (1994)................. 2

Dufau v. United States, 22 Cl. Ct. 156 (1990)............... 16

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

ee

Florida Rock Industries, Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994)................ccccccccee cece 10-11

Fuller v. United States, 409 U.S. 488 (1973)...............00 s

Kaiser Aetna v. United States, 978 F.2d 1269

EEE u

Keene Corp. v. United States, 508 U.S. 200 (1993).......... 2

iv

Kimball Laundry Co. v. United States,

RA ne 5,6, 12

Loretto v. TelePrompter Manhattan CATV Corp.,

SD hs a icccccecccccnccccsseveceseccssccctesscstes 9-10

Lucas v. South Carolina Coastal Council,

ee passim

Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992)....9

Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001).......... 3

Phillips v. Washington Legal Foundation,

Fe hs Se cccnscnncncnscesenisiiiciiadiensscovetitananie 2

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159 (2001)........3

Suitum v. Tahoe Regional Planning Agency,

a ET 2

Tabb Lakes. Inc. v. United States,

es CE nincetditninenesennesttinienninnertes 15-16

Tahoe Sierra Preservation Council v. Tahoe

Regional Planning Agency, 34 F Supp.2d 1226

Regional Planning Agency,

Tahoe Sierra Preservation Council v. Tahoe

Regional Planning Agency, 228 F.3d 998

EE iecenscernencencnvensececcevssesesecccesen 5, 15

United States v. Dow, 357 U.S. 17 (1958)............ 5, 6, 13

United States v. General Motors Corp..,

I ncicidenieeereaninaniienennsencesetial 5, 6, 13

United States v. Petty Motor Co.,

ane 12-13

Constitutional and Statutory Provisions:

catenin dieeslllll 8

Other Authorities:

James Madison, Property, 1 NAT'L GAZETTE 174

(1792) (reprinted in 4 LETTERS AND OTHER

WRITINGS OF JAMES MADISON 480 (1865)) ............0..00. 7

No. 00-1167

In the

Supreme Court of

the United States

TAHOE SIERRA PRESERVATION COUNCIL, INC., ETAL.,

Petitioners,

Vv.

TAHOE REGIONAL PLANNING AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF

DEFENDERS OF PROPERTY RIGHTS

IN SUPPORT OF PETITIONER

Pursuant to Rule 37.3 of the Rules of this Court,

amicus curiae submits this brief in support of petitioner.’

Both parties have consented to the filing of this brief.

'No counsel for either party authored this brief amicus curiae, either in

whole or in part. Furthermore, no persons other than amicus curiae

contributed financially to the preparation of this brief.

1

INTERESTS OF AMICUS CURIAE

Defenders of Property Rights is the only national

legal defense foundation dedicated exclusively to protecting

private property rights. Based in Washington, D.C.,

Defenders was founded as a non-profit, public interest legal

foundation in 1991. Its mission is to protect vigorously

those rights considered essential by the Framers of the

Constitution, and to promote a better understanding of the

relationship between private property rights and individual

liberty.

Defenders of Property Rights engages in litigation

across the country on behalf of its members and the public

interest to prevent government incursion into protections

guaranteed by the Bill of Rights. Defenders participated in

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

(1992); Keene Corp. v. United States, 508 U.S. 200 (1993);

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

Spear, 520 U.S. 154 (1997); Suitum v. Tahoe Regional

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

Washington Legal Foundation, 524 U.S. 156 (1998); City

of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

2

U.S. 687 (1999); Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 531 U.S. 159

(2001); and Palazzolo v. Rhode Island, 121 S. Ct. 2448

(2001).

STATEMENT OF THE CASE

Since 1969, when California and Nevada signed a

compact creating the Tahoe Regional Planning Agency

(“TRPA”), property owners in the Lake Tahoe region have

been fighting for the right to develop, or make any use at

all, of their property. In 1969, TRPA adopted land-use

Ordinance No. 4, which, among other things, classified the

land in the basin according to its “high” or “low”

susceptibility to environmental hazards. Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 216 F.3d 764, 767 (9th Cir. 2000).

Subsequently, in 1980, the two states amended the

compact so that TRPA could develop a new regional plan.

TRPA then enacted two separate measures to prohibit

development during formulation of the revised plan. Jd. at

767-78. First, TRPA enacted Ordinance 81-5, which

became effective on August 24, 1981 and prohibited most

3

residential and all commercial construction on high hazard

lands. Jd. at 768. The second resolution, Ordinance 81-5,

which became effective on August 24, 1981, put in place a

development moratorium on all development of all of the

covered land. Jd. Although the resolution was drafted to

expire after a ninety-day period, it was extended until the

new regional plan was adopted. Jd.

On April 26, 1984, TRPA adopted its new regional

plan. Jd. The restrictions on development of “high-hazard”

lands in Ordinance 81-5, however, still remained in place

due to temporary measures adopted by TRPA. Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 34 F.Supp.2d 1226, 1236 (D. Nev. 1999), rev'd,

216 F.3d 764, 767 (9th Cir. 2000). On May 1, 1984, a

temporary restraining order was also issued, restricting

development of those lands. Jd. A permanent injunction

restricting development was issued in August of 1984,

which remained in force until another regional plan was

adopted in 1987. Jd. The restrictions on development of the

“high-hazard” lands in the Lake Tahoe area, however, still

continue today, under subsequent development plans.

4

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

Planning Agency, 228 F.3d 998, 999 (9tit Cir. 2000)

(denying pet. for rehearing en banc) (Kozinski, J.,

dissenting). Thus, for over two decades, property owners of

this “high-hazard” land in the Lake Tahoe region have been

restricted from any development of their land.

SUMMARY OF ARGUMENT

In the context of physical takings, this Court

recognizes no distinction between takings that are

permanent or for an interim period. See, e.g., United States

v. Dow, 357 U.S. 17 (1958); Kimball Laundry Co. v. United

States, 338 U.S. 1 (1946); United States v. General Motors

Corp., 323 U.S. 373 (1945). Likewise, there should be no

distinction, with respect to regulatory takings where there

has been a total deprivation of all economically beneficial

and productive use of the property.

If any regulation, temporary or otherwise, requires a

property owner “to sacrifice all economically beneficial use

in the name of the common good, that is, to leave his

property economically idle, he has suffered a taking.”

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

5

1019 (1992). Indeed, the “total deprivation of beneficial use

is, from the landowner’s point of view, the equivalent of a

physical appropriation.” Jd. at 1017; see also United States

v. Dow, 357 U.S. 17 (1958) (holding that temporary use and

occupation of property government is a taking for which

just compensation is “measured by the principles normally

governing the taking of a right to use property

temporarily”); United States v. General Motors Corp., 323

U.S. 373, 380 (1945) (holding that government occupancy

of property for “a day, a month, a year, or a series of years”

has a value that may be unconstitutionally taken without

just compensation); Kimball Laundry Co. v. United States,

338 U.S. 1, 6-7 (1946) (“These considerations have special

relevance where ‘property’ is ‘taken’ not in fee but for an

indeterminate period.”).

Furthermore, as this Court held in First English

Evangelical Lutheran Church of Glendale v. County of Los

Angeles, “temporary takings which, as here, deny a

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

from permanent takings, for which the Constitution clearly

requires compensation.” 482 U.S. 304, 319 (1987). Thus,

6

whether a regulation is imposed for three months, three

years, or until it may be invalidated by court declaration or

abandoned by the government, if the regulation deprives a

property owner of all economically beneficial use of his or

her land, the Fifth Amendment demands payment of just

compensation.

ARGUMENT

I, Whether Permanent or Temporary, a Taking of

All Economically Beneficial Use of Property

Demands Payment of Just Compensation.

The right to own and enjoy one’s property is one of

the fundamental rights on which our system of law is based.

James Madison wrote “as a man is said to have a right to

his property, he may be equally said to have a property in

his rights.” James Madison, Property, 1 NAT’L GAZETTE

174 (1792) (reprinted in 4 LETTERS AND OTHER WRITINGS

OF JAMES MADISON 480 (1865)). These rights, and more

particularly property rights, derive from equitable concepts

rooted in common law and in the principles of equity that

are reflected in the Just Compensation Clause of the Fifth

Amendment. In Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), the Court explicitly recognized that

the Just Compensation Clause helps define a property

owner’s understanding of his or her rights in property:

In the case of land, however, we think that the

notion pressed by the council that title is

somehow held subject to the “implied

limitation” that the State may subsequently

eliminate all economically valuable use is

inconsistent with the historical compact

recorded in the Just Compensation Clause that

has become part of our constitutional culture.

Id. at 1028 (emphasis supplied)

The historical compact recorded in the Just

Compensation Clause is in essence an understanding that

government’s power will be constrained by principles of

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

While a government can, under certain circumstances,

“take” private property for public use, any such taking is

void unless it provides for fair payment in return. U.S.

Const. amend. V; see also Fuller v. United States, 409 U.S.

488, 490 (1973) (citation omitted) (“The constitutional

requirement of just compensation derives as much content

from the basic equitable principles of fairness as it does

from technical concepts of property law.”’).

The requirement of a stable system of property

rights for which the government’s taking of private property

triggers the duty to pay just compensation is reflected

throughout takings jurisprudence. For example, in Nixon v.

United States, 978 F.2d 1269 (D.C. Cir. 1992), the D.C.

Circuit Court of Appeals held that “[t]he essential character

of property is that it is made up of mutually reinforcing

understandings that are sufficiently well grounded to

support a claim of entitlement.” Jd. at 1275 (citing Kaiser

Aetna v. United States, 444 U.S. 164, 179 (1979) (holding

that property consists of recognized expectancies)). |

Using this historical basis for the Just Compensation

Clause, this Court has extended its application to both

physical takings as well as regulatory takings of private

property for public use. In Loretto v. TelePrompter

Manhattan CATV Corp., 458 U.S. 419 (1982), the Court

held that physical occupation of private property is a per se

violation of the Fifth Amendment:

The historical rule that a permanent physical

occupation of another’s property is a taking

has more than tradition to commend it. Such

9

an appropriation is perhaps the most serious

form of invasion of an owner’s property

interests. To borrow a metaphor, the

government does not simply take a single

“strand” from the “bundle” of property rights:

it chops through the bundle, taking a slice of

every strand.

Id. at 433-35 (citations omitted).

In Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992), the Court held that the taking of all

beneficial and productive use of private property is

tantamount to a physical taking and thus is also a per se

violation of the Just Compensation Clause:

[The] total deprivation of beneficial use is,

from the landowner’s point of view, the

equivalent of a physical appropriation. .. .

Where “permanent physical occupation” of

land is concerned, we have refused to allow

the government to decree it anew (without

compensation), no matter how weighty the

asserted “public interests” involved .. . We

believe similar treatment must be accorded

confiscatory regulations, i.e., regulations that

prohibit all economically beneficial use of

land.

Lucas, 505 U.S. at 1017, 1028-29 (citations omitted); see

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

10

1560, 1564-65 (Fed. Cir. 1994) (“The recent Supreme

Court decision in Lucas . . . teaches that [i]f a regulation

categorically prohibits all economically beneficial use of

land--destroying its economic value for private

ownership--the regulation has an effect equivalent to a

permanent physical occupation. There is, without more, a

compensable taking.”’).

Furthermore, such a regulatory taking may be

permanent or temporary. As Justice Kennedy noted in his

concurrence in Lucas, “(t]he potential for future relief does

not control our disposition, because whatever may occur in

the future cannot undo what has occurred in the past. . . .

[The Beachfront Management Act] may have deprived

petitioner of the use of his land in an interim period. If this

deprivation amounts to a taking, its limited duration will

not bar constitutional relief. It is well established that

temporary takings are as protected by the Constitution as

are permanent ones.” /d. at 1032-33 (Kennedy, J.,

concurring) (citing First English Evangelical Lutheran

Church of Glendale v. County of Los Angeles, 482 U.S.

304, 318 (1987)).

11

Il. The Court Below Erred in Holding That a

Temporary Planning Moratorium Cannot

Constitute a Temporary Taking.

This Court in First English Evangelical Lutheran

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

(1987), held that “temporary takings which, as here, deny a

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

from permanent takings, for which the Constitution clearly

requires compensation.” /d. at 319 (emphasis added). In so

holding, the Court recognized several different factual

scenarios upon which a “temporary” taking might be

established.

First, the Court recognized that a temporary taking

may arise when the government “temporarily exercise[s] its

right to use private property,” constituting a temporary

physical taking. See Kimball Laundry Co. v. United States,

338 U.S. 1 (1949) (determining just compensation for

temporary physical occupation of laundry to provide

laundry and dry cleaning service for members of the armed

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

378 (1946) (holding that the taking of a leasehold, even

12

though temporary, required just compensation since “{i}f

any property is taken, compensation is required”); United

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

(holding just compensation due for the government’s

temporary use a specially equipped warehouse held under

long-term lease). “‘In such cases compensation would be

measured by the principles normally governing a taking of

a right to use property temporarily.” First English, 482

U.S. at 318 (quoting United States v. Dow, 357 U.S. 17, 26

(1958)). It is thus unquestioned that temporary physical

takings are compensable under the Fifth Amendment.

Another instance when a temporary taking may

arise, as the Court recognized in First English, is when the

government imposes a regulation which deprives a property

owner of all economically viable use of his property, and

later, abandons enforcement of the regulation or acquiesces

in a judicial declaration that the regulation effected an

unconstitutional taking. The First English Court held that

“fiJnvalidation of the ordinance or its successor ordinance

after this period of time, though converting the taking into a

‘temporary’ one, is not a sufficient remedy to meet the

13

demands of the Just Compensation Clause.” Jd. at 3.9.

The First English Court did not hold, however, as

the court below suggests, that a temporary taking may not

arise when a regulation is only imposed for a finite period,

such as the temporary planning moratorium in the present

case. Indeed, the Court in First English held that the issue

centered on whether all use of the property had been

deprived: “[W]here the government’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.” Jd. at 321.

Furthermore, similar to the moratorium imposed in

the present case, the ordinance at issue in First English was

an “interim” ordinance, passed in response to an emergency

flood situation. The fact that the ordinance was labeled

“interim” indicates that such ordinance would have been in

effect only for a finite time period until a permanent

ordinance could be adopted. The Court in First English,

however, did not require the property owners te wait until a

final ordinance was enacted, however, to find that a

14

compensable taking had occurred.

Further, while in theory, development moratoria are

imposed for a finite time period, in reality, these moratoria

may suspend development indefinitely. See Tahoe Sierra

Preservation Council v. Tahoe Regional Planning Agency,

228 F.3d 998, 1001 (9th Cir. 2000) (denying petition for

rehearing en banc) (Kozinsky, J., dissenting) (“[S]o-called

temporary moratoria have a habit of living beyond their

purported termination dates. In this case, a series of

consecutive development moratoria has prevented the

landowners from building any homes on their lots for two

decades since the start of this litigation.”).

Thus, a regulation that deprives a property owner of

the use of his or her property for such a lengthy time period,

or indeed indefinitely, is a taking of property under the

Fifth Amendment, whether or not the regulation is imposed

“permanently.” This comports with the various cases in

which lower courts have held that extraordinary delay by

the government in issuing a permit or making a permitting

decision may constitute a temporary taking. See e.g., Tabb

Lakes. Inc. v. United States, 26 Cl. Ct. 1334, 1352-54

15

(1992) (“In evaluating the reasonableness of. . . the she must be compensated under the Fifth Amendment.

permitting process . . . the key factor that the court must Respectfully submitted,

analyze is whether ‘extraordinary delay’ in the

governmental decision-making process gives rise to a Nancie G. Marzulla

temporary taking.”); Dufau v. United States, 22 Cl. Ct. 156, Brenda D. Smith

DEFENDERS OF PROPERTY RIGHTS

163 (1990) (“The Supreme Court has suggested that 1350 Connecticut Ave., NW

‘extraordinary delays’ in the process of government Suite 410

% Lrpayd etic ° , Washington, DC 20036

decision-making may give rise to a temporary taking (202) 822-6770

claim.”’) (citing First English, 482 U.S. at 321; Agins v.

Tiburon, 447 U.S. 255, 263, n.9 (1980)).

CONCLUSION

There is no basis under the Constitution for

distinguishing between physical takings and regulatory

takings with respect to a temporary takings analysis. The

key question, therefore, in a regulatory takings case, should

not be how long a regulation is imposed but rather, whether,

due to that regulation, a property owner was deprived of all

economically beneficial or productive use of his or her

property. If a property owner is temporarily deprived of ali

economically beneficial or productive use of his or her

property, then his or her property has been taken and he or

Date: September 12, 2001

16 17