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

No. 00-1167 4 ‘

= RI RE,

In The \

Supreme Court of the United States

¢

TAHOE SIERRA PRESERVATION

COUNCIL, INC., ET AL.,

Petitioners,

V.

TAHOE REGIONAL PLANNING AGENCY, ET AL.,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF AMICUS CURIAE OF THE INSTITUTE

FOR JUSTICE IN SUPPORT OF PETITIONERS

SJ

RicHARD A. EPsTeIN INSTITUTE FOR JUSTICE

1111 East 60th Street *WituiaAM H. MELLor

Chicago, IL 60637 Cunt Bouick

(773) 702-9494 Scott BuLLOcK

1717 Pennsylvania Ave., NW

Suite 200

Washington, DC 20006

(202) 955-1300

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE

ABBREVIATED STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

The Various Issues in a Takings Case Must be

Disentangled in order to Develop any Coher-

ent Jurisprudence

A Temporary Taking that Deprives any Land-

owner of All Viable Economic Use of the Land

is Prima Facie Compensable under the Takings

Clause of the Constitution

A. The Takings Clause Protects All Valid

Interests in Real Property that are Created

and Recognized under State Law

The Ninth Circuit’s Continued Attempts to

Evade the Command of First English are

Unavailing

. The Police Power Justifications for the State,

While Present in this Case, do not Justify a Dis-

proportionate Burden on These Plaintiffs...... :

A. This Case Raises Police Power Issues Dra-

matically Different From Those in First

Whether or not Paving Over Open Lands

Constitutes a Nuisance, these Plaintiffs

Should not be Required to Bear the Full

Costs of Protecting Lake Tahoe without

Receiving Just Compensation 24

IV. The Need for Orderly Planning does not Justify

the Endless Delays Imposed in this Case

CONCLUSION ........... “POTTTT TTT Ter Tire trite 30

ii

TABLE OF AUTHORITIES

Page

CAsEs

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

MIT!” 5, 22, 24, 25, 27

Dennis v. United States, 341 U.S. 494 (1951)........... 8

FCC v. Pacifica Found., 438 U.S. 726 (1978)............ 8

First English Evangelical Lutheran Church v. County

of Los Angeles, 258 Cal. Rptr. 893, 210 Cal. App.

SE 1953 (2908)... ccccevcecessseseu neuen 21

First English Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987).............. 0 eee passim

Keystone Bituminous Coal Ass’n v. deBenedictis, 480

US. 470 (3967) ....00000006805505 65 eee 15

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

(RPG) . oo cccoveccesesee senna 11, 12, 13, 18, 20

Loretto v. TelePrompter, 458 U.S. 419 (1982)........... 18

Lucas v. S.C. Coastal Comm'n, 505 U.S. 1003 (1992) ..passim

Miller v. California, 413 U.S. 15 (1973) ................ 8

New York v. Ferber, 458 U.S. 747 (1982)............... 8

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

cccvccsccccteseseeenensens > anennnnE 7, 15, 16, 17, 19

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

456 U.S. 106 (B97E) .. ov cscccevecsessusenenee passim

Pennell v. San Jose, 485 U.S. 1 (1988) ................. 5

Ruckelshaus v. Monsanto, 467 U.S. 986 (1984).......... 9

Rylands v. Fletcher, L.R. 3 H.L. 330 (H.L.E. 1868)..... 23

iii

TABLE OF AUTHORITIES - Continued .

age

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’! Plan-

ning Agency, 228 F.3d 998 (9th Cir. 2001).......... 19

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

yen ‘A pébences ” gp ecceccccocceess 9, 11, 12, 18, 20

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

EEE EERESPPPPTTTTTTTITITI TITTLE 12, 13

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

ESSE SPEEPTPOVTTTTTTITIT TLE L TTL 12, 13

United States v. Powelson, 319 U.S. 266 (1943)......... Me

Va. Pharmacy Bd. v. Va. Citizens Consumer Council,

GBS UG. TED (1976)... 2 cc cvcccccccccccccccccccccees 8

Young v. Am. Mini Theatres, 427 U.S. 50 (1976)........ 8

CONSTITUTIONS

U.S. Const. First Amendment ............. 6. esse eeees 8

U.S. Const. Fifth Amendment.................-e00ees 7

OTHER AUTHORITIES

Susan F. French, Toward a Modern Law of Servitudes:

Reweaving the Ancient Strands, 55 S. Cal. L. Rev.

BABE CAGED cc ccc cece cccccsccccccccccccsesccccccens 10

Margaret Radin, The Liberal Conception of Property:

Cross Currents in the Jurisprudence of Takings, 88

Colum. L. Rev. 1667 (1988) ...........cccc ee eeeees 14

Restatement (Third) of Property, Servitudes (Ten-

ME, «nc ccc ceccccccccccceccecs 10

Victor Goldberg, Thomas W. Merrill & Daniel

Unumb, Bargaining in the Shadow of Eminent

Domain: Valuing and Apportioning Condemnation

Awards Between Landlord and Tenant, 34 UCLA L.

Bet BOBS CIGGF) 2... cece ccccccccccccccceccccscees 10

1

INTEREST OF THE AMICUS CURIAE

The Institute for Justice is a nonprofit, public interest

law center committed to defending the essential founda-

tions of a free society through securing greater protection

for individual liberty and restoring constitutional limits

on the power of government. Central to the mission of

the Institute is strengthening the ability of individuals to

control and transfer property and demonstrating that

property rights are inextricably connected to other civil

rights.

The Institute’s brief is co-authored with Professor

Richard Epstein of the University of Chicago Law School,

one of the nation’s leading authorities on property law.

The Institute also filed along with Professor Epstein

amicus curiae briefs in Lucas v. South Carolina Coastal Coun-

cil, Dolan v. City of Tigard, City of Monterey v. Del Monte

Dunes at Monterey, Ltd., and Palazzolo v. State of Rhode

Island, et al. before this Court. This brief presents the

question of whether the Court of Appeals properly deter-

mined that a temporary moratorium on land develop-

ment does not constitute a taking of property requiring

compensation under the Takings Clause of the Constitu-

tion.

The parties in this case consent to the filing of amicus

curiae briefs in support of their respective positions and a

letter memorializing such consent has been filed with the

clerk.?

1 Counsel for the parties in this case did not author this

brief in whole or in part. No person or entity, other than amicus

curiae Institute for Justice, its members, and its counsel made a

monetary contribution to the preparation and submission of this

brief.

2

ABBREVIATED STATEMENT OF THE CASE

Owing to the limited scope of this Court’s grant of

certiorari, it is not necessary to rehearse in any detail the

ins and outs of this modern version of Bleak House, in

which the actions of regional planning commissioners

made the nineteenth-century English Probate Court

appear the model of dispatch. All the plaintiffs in this suit

are landowners of undeveloped plots of land located in

the Lake Tahoe Basin. For nearly twenty years, they have

fought an incessant battle with the Tahoe Regional Plan-

ning Agency (TRPA), which under a series of strategically

timed development moratoria has refused to allow the

construction of any new single-family homes on ordinary

building plots located in the basin. At no time has TRPA

simply and publicly acknowledged its evident mission,

which is to achieve an indefinite and selective mor-

atorium on new construction through a series of tempor-

ary restraints.

TRPA’s prime justification for its steadfast refusal to

permit development relates to the preservation of the

pristine condition of Lake Tahoe. Owing to its high alti-

tude and location, Lake Tahoe was in its natural state

“oligotropic,” which means that the Lake lacked the

nutrients to support the growth of plant life. In conse-

quence the Lake enjoyed a matchless clarity that has been

long celebrated by Mark Twain and the citizens who live

and work in the region. Owing to the development that

has already taken place within the area, however, Lake

Tahoe has undergone a process of “eutrophication”

whereby plant life has flourished in the Lake, undermin-

ing its clarity. The source of that eutrophication has been

the substantial increase in the level of nutrients in the

Lake. The source of nutrients can be traced unam-

biguously to the past construction in the Lake Tahoe

basin. As natural soil gives way to asphalt and concrete,

3

the ability of the land in the basin to absorb water neces-

sarily is reduced. The increased runoff sweeps along soil

and the nutrients found in soil. These nutrients in turn

allow plant life to flourish within the Lake, reducing its

overall clarity. The ban against new construction is

intended to prevent an acceleration of this cycle.

The record contains no evidence of any measures

introduced by TRPA that require any alterations of sites

that have already been built up. The building moratoria

have at most prevented an increase in the rate of runoff,

but have done nothing to reduce the level of runoff

attributable to construction prior to the imposition of the

development moratoria. All of the burden of preventing

further eutrophication of Lake Tahoe has thus been cast

on those landowners who did not have the need, fore-

sight or luck to build on their properties prior to the

formation of TRPA. The question addressed by this Court

thus becomes whether that selective imposition of burdens

on a temporary basis counts as a taking of private prop-

erty for which compensation is required under the Tak-

ings Clause of the United States Constitution.

SUMMARY OF ARGUMENT

This case raises two distinct issues. First, does a

temporary restriction on all development rights consti-

tute a taking of private property for which prima facie just

compensation should be paid? If (as is the case) this first

question is answered in the affirmative, then, second, has

TRPA offered any justification that negates its prima facie

obligation? TRPA ,relies on two possible justifications:

first, to protect the condition of Lake Tahoe from further

degeneration, and, second, to allow some breathing room

for planning agencies to engage in “normal delays in

obtaining building permits, zoning ordinances and the

like,” mentioned but not elaborated in First English

+

Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321

(1987).

On the first question, the Ninth Circuit clearly erred

when it gutted First English by holding that compensation

is never required for any ordinance that from the outset

purports only to impose temporary restrictions, even

total restrictions, on land use. The Ninth Circuit offers no

definition of how long a period of time counts as “tempo-

rary,” save to say that temporary is shorter than perma-

nent. Nor does it address the legal implications of

repeated strategic, rolling and indefinite renewal of tem-

porary restrictions. On its crabbed view, First English

applies only when the state refuses to abandon an in-

place permanent land use restriction after some court has

declared it to be an uncompensated taking. As stated, the

Ninth Circuit invites state agencies to engage in a whole-

sale evasion of the Takings Clause. On its view, if the

state chooses to extend a “temporary” moratorium from

ten to eleven years, it can do so without running afoul of

the Takings Clause. But if a “permanent” ordinance is

struck down after ten years of operation, then the state

must pay compensation if it chooses to extend that ordi-

nance’s life for an eleventh year. The economic effects of

these “temporary” and “permanent” ordinances are the

same, but their constitutional consequences are polar

opposites. Under the Ninth Circuit rule, states will find it

all but irresistible to extend temporary ordinances rather

than to cut back permanent ones. The correct view of the

matter prevents this gutting of Fifth Amendment guaran-

tees: any permanent or temporary restriction, however

phrased or implemented, is every bit as compensable as

the occupation of the land for the identical period of time.

Nor does TRPA have a police power justification for

imposing the restriction without compensation. Here

there is a genuine question as to whether paving over

land within the basin counts as a nuisance. If not, then

{

5

the state has no justification for singling out these owners

without compensating them for their losses. As all

owners in the Lake Tahoe Basin benefit, all should have

to share in the costs of keeping the Lake clear. Yet even if

the paving over open land counts as a nuisance, as it well

might, it does not follow that TRPA may saddle these

plaintiffs with the full burden of its nuisance control

measures. If new construction by the plaintiffs counts as a

nuisance, then the existing homes, driveways and roads

in the Tahoe basin necessarily count as continuing nui-

sances. Even if the state may expand its definition of

nuisance law, it cannot selectively sanction the plaintiffs,

who have as of yet done no wrong, while allowing the

creators of the continuing nuisance to go scot-free. See

Armstrong v. United States, 364 U.S. 40, 49 (1960). TRPA’s

current practices represent a total breakdown of the polit-

ical process by allowing local residents to put the entire

burden of preserving Lake Tahoe on nonresident owners

who are unable to protect their interests in the political

process. See Pennell v. San Jose, 485 U.S. 1, 22 (1988)

(Scalia, J.) (account of the weaknesses of the democratic

politics in the context of rent control). Only the payment

of compensation to the plaintiffs can equalize the burden

of nuisance prevention between early and latecomers.

Nor can TRPA make out its second justification. The

succession of development moratoria does not remotely

resemble the “normal delays” needed to consider individ-

ual applications for permits and variances. Rather, it rep-

resents a comprehensive planning system that refuses to

pass on individual applications at all. Even if these mor-

atoria were covered, in this instance, the delays in ques-

tion surely count as “excessive” and not “normal” in that

there is no short-time period (e.g., one year) in which the

administrative action must be completed.

6

ARGUMENT

I. The Various Issues in a Takings Case Must be Dis-

entangled in order to Develop any Coherent Juris-

prudence.

It has been widely agreed that few areas in constitu-

tional law are as chaotic or ill defined as this Court’s

takings jurisprudence. This Court itself has frequently

acknowledged that criticism in its own words. In Penn

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

124 (1978), sustaining New York City’s landmark preser-

vation ordinance, Justice Brennan wrote:

While this Court has recognized that the “Fifth

Amendment’s guarantee . . . [is] designed to bar

Government from forcing some people alone to

bear public burdens which, in all fairness and

justice, should be borne by the public as a

whole,” Armstrong v. United States, 364 U.S. 40,

49 (1960), this Court, quite simply, has been

unable to develop any “set formula” for deter-

mining when “justice and fairness” require the

economic injuries caused by public action be

compensated by the government, rather than

remain disproportionately concentrated on a

few persons. See Goldblatt v. Hempstead, 369 U.S.

590, 594 (1962).

The doctrinal confusion in fact cuts deeper because in

many other cases the embedded quotation from Arm-

strong has received the categorical endorsement that Jus-

tice Black intended for it to have. Thus in the case closest

to this one, First English, for example, Justice Scalia exhib-

ited no tolerance or philosophical despair about organiz-

ing the law under the Takings Clause by writing: “It is

axiomatic that the Fifth Amendment's just compensation

provision is ‘designed to bar Government from forcing

some people alone to bear pubiic burdens which, in all

fairness and justice, should be borne by the public as a

7

whole.’ ” First English, 482 U.S. at 318-19 (quoting Arm-

strong). And some opinions have quoted both the cate-

gorical version of the rule in Armstrong and its qualified

rewrite in Penn Central. See Palazzolo v. Rhode Island, 121

S. Ct. 2448, 2465-66 (2001).

The only way out of this jurisprudential quagmire

lies in developing a unified approach to the Takings

Clause that takes into account the two recurrent themes

that have thus far stymied comprehensive judicial treat-

ment. The first of these is to preserve the parity among

regulated individuals so that a runaway political process

does not place disproportionate burdens on a vulnerable

subclass of the population. The second, in this context, is

to guarantee that important environmental interests are

not overlooked by an unthinking and overzealous protec-

tion of private property interests. The former generates

the impulse for equal treatment; the latter explains the

importance for singling out all wrongdoers for special

treatment. :

We believe that this Court will be able to reconcile

these twin objectives only if it disaggregates the initial

question (has the government taken private property?)

from the police power question (does the state have an

environmental justification for its action?) so that each

issue in sequence can receive its proper analysis. This

approach simply imitates in the Fifth Amendment context

the common practice of analysis elsewhere. Private law-

suits routinely divide multiple factors that bear on litiga-

tion between those elements the plaintiff must raise as

part of the prima facie case and those which the defen-

dant may introduce by way of an affirmative defense, so

that each issue receives its due weight. On this view it is

important not to “anticipate defenses” in articulating the

prima facie, or to muddle together issues that should be

kept analytically and legally apart.

8

Similarly, the First Amendment law involving the

protection of freedom of speech is rarely regarded to be

as chaotic as the law under the Takings Clause, largely

because this Court has followed the procedure set out

above. It first asks whether any particular regulation, tax

or restriction counts as a restriction on the freedom of

speech, and then, if that answer is in the affirmative,

whether the restriction in question is justified as a means

to prevent violence, defamation, obscenity, etc. See, e.g.,

Miller v. California, 413 U.S. 15 (1973) (child pornogra-

phy); New York v. Ferber, 458 U.S. 747 (1982) (same); Young

v. Am. Mini Theatres, 427 U.S. 50 (1976) (neighborhood

preservation); FCC v. Pacifica Found., 438 U.S. 726 (1978)

(indecency); Va. Pharmacy Bd. v. Va. Citizens Consumer

Council, 42° U.S. 748 (1976) (consumer fraud); Dennis v.

United States, 341 U.S. 494 (1951) (public morality, or to

preserve and protect national security). Once these legiti-

mate ends are specified, it can then be determined

whether the remedies imposed sweep too wide for their

intended purpose.

One reason why the Ninth Circuit went so far astray

in the instant case is that it consciously muddled these

sets of issues together. It thus started with a detailed

account of the strong environmental interests in the case

so as to create the illusion that these interests would have

to be slighted if any compensation were paid to the plain-

tiffs for their inability to build on their land for over a

twenty year period. Yet the temporary takings issue does

not arise only in environmental contexts, for it can also

occur in ordinary zoning, traffic control or antigrowth

ordinances that have little or nothing to do with environ-

mental issues. It therefore is ill advised to prejudice the

discussion of the takings issue by making it appear as

though the recognition of the government's prima facie

obligation to compensate necessarily short changes the

environmental concerns. It is the burden of this brief to

9

show how the disaggregation of the two matters clarifies

the analysis, gives due interests to both, and, in this case

at least, requires that some compensation be paid to the

plaintiffs in order to give the environmental interests their

' full weight.

II. A Temporary Taking that Deprives any Landowner

of All Viable Economic Use of the Land is Prima

Facie Compensable under the Takings Clause of the

Constitution.

A. The Takings Clause Protects All Valid Interests

in Real Property that are Created and Recog-

nized under State Law.

It is widely understood that the federal constitutional

law under the Takings Clause does not define the prop-

erty interests in land and other resources that it protects.

Rather the definition of these property interests falls typ-

ically (copyright and patents are exceptions) in the prov-

ince of state law. See United States v. Powelson, 319 U.S.

266, 279 (1943); United States v. Causby, 328 U.S. 256, 266

(1946); Ruckelshaus v. Monsanto, 467 U.S. 986, 1001 (1984)

(using state definitions of trade secrets). The dominant

characteristic of English and American Law is its flex-

ibility. The fundamental form of ownership under Anglo-

American law is the fee simple absolute in possession

that was traditionally seen as conferring on its owner

rights that extend over all times from the bowels of the

earth to the edges of heaven. (Cujus est solum, ejus est

usque ad coelum et ad inferos, translated as whosoever

owns the land, owns to the heavens and to the depths.)

Putting aside the obvious qualifications for air rights, see

Causby, 328 U.S. 256, this unitary fee simple interest is

capable of division in a large (but not unlimited) number

of ways. For these purposes, the simplest variations on

the doctrine of estates illustrate the basic flexibility of

Anglo-American property law. The private law allows

10

individuals to divide land over the plane of time, such

that one person holds a life estate while a second holds a

reversion or remainder, or one person holds a lease and

the other a reversion or remainder. It is also possible to

create “servitudes” (covering both easements and restric-

tive covenants) that give one landowner interests in or

over the land of a neighbor. See Restatement (Third) of

Property, Servitudes (Tentative Draft No. 5, 1995). For a

defense of the unified approach, see Susan F. French,

Toward a Modern Law of Servitudes: Reweaving the Ancient

Strands, 55 S. Cal. L. Rev. 1261 (1982).

So long as these interests are validly created under

state law, they are protected under the Takings Clause.

Suppose that the fee simple in Blackacre is worth

$100,000, but is then divided by deed into a life estate

worth $60,000 and a remainder interest worth $40,000.

Everyone agrees that the government has to pay $100,000

if it condemns the land before it is divided into the life

estate and remainder. Accordingly, it has to pay each

holder for its respective interest after the division. It

would be inconceivable that the Takings Clause could

provide full compensation for the protection of the fee,

but no protection to either the life tenant or the remain-

derman, or the tenant and his landlord, once the property

is divided in accordance with the settled principles of

state law. Rather, a landowner’s ability to alienate and

use property under state law is only preserved if the state

pays each holder of an estate in land the value of his or

her interest. See Palazzolo, 121 S. Ct. at 2463 (noting the

importance of alienability of interests in land); see also

Victor Goldberg, Thomas W. Merrill & Daniel Unumb,

Bargaining in the Shadow of Eminent Domain: Valuing and

Apportioning Condemnation Awards Between Landlord and

Tenant, 34 UCLA L. Rev. 1083 (1987).

The same analysis of divided property applies when

the government takes part of the landowner’s undivided

11

fee interest in land. In Causby, the question before this

Court was whether the United States had to pay for the

damages caused to plaintiffs’ property by repeated low-

level overflights. In allowing the action, the Court recog-

nized that the overflights took an easement over the plain-

tiff’s property, for which it was required to pay not only

for the space so occupied but also for all the consequen-

tial damages done to the plaintiff’s remaining land hold-

ings. The government sought to limit damages because

the

“enjoyment and use of the land are not com-

pletely destroyed. But that does not seem to us

to be controlling. The path of glide for airplanes

might reduce a valuable factory site to grazing

land, an orchard to a vegetable patch, a residen-

tial section to a wheat field. Some value would

remain. But the use of the airspace immediately

above the land would limit the utility of the

land and cause a diminution in its value.”

Causby, 328 U.S. at 262.

No requirement of a total wipeout, anywhere. The land-

owner does not receive protection only in the event that

the fee simple is taken away root and branch. He receives

protection for the taking or destruction of any fractional

interest. “It is the owner’s loss, not the taker’s gain,

which is the measure of the value of the property taken.”

Id. at 261, cited in First English, 482 U.S. at 319.

The principle that applies to easements applies with

equal force to term interests in property. In Kimball Laun-

dry Co. v. United States, 338 U.S. 1 (1949) (Frankfurter, J.),

the government had requisitioned property for govern-

ment use for an indefinite period during the second

World War. The occupation of the property was both

temporary and indefinite, but neither of these factors

alone, nor in combination, denied the owner of the prop-

erty compensation for the rental value during the period

12

of government occupation.2 The government had the

option to decide whether to take the property over in a

single transaction, or to extend its occupation day by day.

It chose the latter because of the uncertain duration of the

war. But this power to determine the scope of its taking

did nothing to defeat its obligation to compensate.

Kimball Laundry and its companion temporary tak-

ings cases, see United States v. Petty Motor Corp., 327 U.S.

372 (1946); United States v. Gen. Motors Corp., 323 U.S. 373

(1945), were explicitly relied on in First English to justify

the state’s prima facie duty to compensate when govern-

ment regulation restricted all right to use the property for

a limited period of time. That judgment was simply an

extension of the familiar equivalence in this Court's juris-

prudence whereby compensation is required for any gov-

ernment restriction that precludes all economically viable

use of the property in question. See Lucas v. S.C. Coastal

Comm'n, 505 U.S. 1003, 1015-16 (1992). In dealing with the

fee simple, this Court has refused to draw any distinction

between a total restriction on land use and a government

occupation. First English preserved that equivalence for

temporary periods of use.

2 The decision also refused to compensate the lessee for the

loss of good will attributable to the government occupation on

the grounds that this was only destroyed but not taken by the

state. That conclusion seems flatly wrong as a matter of

principle, if only because good will is itself a recognized form of

property under state law. The mere fact that it was “destroyed”

but not “taken” does not distinguish the case from Causby,

which clearly did allow for consequential damages.

13

B. The Ninth Circuit’s Continued Attempts to

Evade the Command of First English are

Unavailing.

The Ninth Circuit invoked a number of dubious strat-

agems in order to resist the clear direction of First English.

Its first line was to note that First English itself asks the

- question “whether abandonment by the government [of a

regulation declared to be a taking of the fee simple]

requires payment of compensation for the period of time

during which regulations deny a landowner all use of his

land.” 304 U.S. at 318, quoted in Tahoe-Sierra Pres. Council,

Inc. v. Tahoe Reg’! Planning Agency, 216 F.3d 764, 778

(2000). From this articulation of the question, the Ninth

Circuit then concluded that First English does not apply

here because TRPA had never imposed a permanent mor-

atorium on development for it to abandon.

The fatal flaw in the Ninth’s Circuit reasoning lies in

its undue stress on the particular fact pattern in First

English while neglecting its basic message. The loss to the

landowner is, as a first approximation, the same whether

the restriction in question was initially imposed for a

definite period of time or as a permanent regulation. A

temporary regulation creates residual uncertainty

because it can be extended. A permanent restriction

leaves a residual uncertainty because it can be lifted. But

either way the interim loss of use values remain the same,

and so too the uncertainty imposed on the private ability

to plan. The difference between the two systems of land

use regulation is no greater than the ephemeral difference

between a bonus for early payment or a penalty for later

payment, when in each case the former costs $90 and the

latter $100.

The government occupations of land in Kimball Laun-

dry, Petty Motor, and General Motors were also all tempor-

ary from the outset, but that hardly made them

noncompensable. Only the mode of payment changed, for

14

the goveinment-as-tenant paid rent on a periodic basis

for the period of use instead of a single lump sum.

Nothing about the difference between physical occupa-

tion and economic regulation limits First English to aban-

donment cases. Thus in Lucas, Justice Scalia matter of

factly described First English as “holding that temporary

deprivations of use are compensable under the Takings

Clause.” And so it does.

The Ninth Circuit sought to add a philosophical

patina to bolster its conclusion by noting that the alterna-

tive view of the matter requires the Court to engage in

what has been termed a “conceptual severance” of the fee

simple into its component parts. See Margaret Radin, The

Liberal Conception of Property: Cross Currents in the Juris-

prudence of Takings, 88 Colum. L. Rev. 1667, 1674-78 (1988).

The basic argument is that the plaintiff seeks to “sever,”

at least in theory, the present from the future interest, so

that it becomes “the” property subject to a taking by the

state.

This hypothetical severance - no plaintiff in this case

actually sought to divide his property over time -

receives heightened but undeserved attention only

because this Court’s case law makes the question of com-

pensation turn on the comparison between the quantum

of the interest the state takes and the quantum of interest

the landowner held prior to the regulation. Compensa-

tion is awarded when the entire interest is taken, but not

when the landowner retains enough to continue to make

viable use of “the” property.

This before-and-after comparison received its most

important judicial expression in Penn Central, when this

Court held that the plaintiffs were not entitled to recover

for the loss in value of the air rights over Grand Central

Station imposed by New York City’s landmark preserva-

tion program. Justice Brennan held that the air rights had

to be treated as part and parcel of the fee simple for the

15

entire plot by declaring, without explanation, that

“[t]akings jurisprudence does not divide a single parcel

into discrete segments and attempt to determine whether

rights in a particular segment have been entirely abro-

gated.” 438 U.S. at 117-18. What matters is the disposition

of the “parcel as a whole,” in that case the entire land-

mark site. Id. Hence so long as Penn Central could con-

tinue to undertake all preexisting uses at a profit, as by

the continued operation of its terminal, it could not show

that it had been deprived of all economic use of the parcel

- in question. If, however, it could treat the air rights as

though they had been sold off to a third party, thus

forming a separate item of property (as they would be

under state law), then compensation would be required

because these (narrowly defined) air rights would have

lost their entire use value, even if the use of the Grand

Central Station, conceived separately, remained

unchanged.

The need to define the contours of the property sub-

ject to regulation is often referred to as the “denomina-

tor” problem. Keystone Bituminous Coal Ass'n v.

deBenedictis, 480 U.S. 470, 497 (1987) (citing Frank I.

Michelman, Property, Utility and Fairness: Comments on the

Ethical Foundations of “Just Compensation” Law, 80 Harv. L.

Rev. 1165, 1192 (1967)). Once it is known what is lost,

then it is important to determine whether it is “the”

property or part of a larger whole for which it counts as a

smaller fraction. The Ninth Circuit’s belief was that the

fee simple sets the denominator, for which the temporary

life estate counts only as a small fraction. It thus extended

the Penn Central rule for spatial segmentation to temporal

segmentation.

The errors in this position are numerous. We have set

many of these out in our previous amicus curiae brief in

Palazzolo v. State of Rhode Island, at 26-30, and will not

repeat all the nightmarish problems that arise when the

16

government seeks to amalgamate several undeveloped

parcels into a single whole to take advantage of the Penn

Central rule. It is important to note in this context, how-

ever, that the Ninth Circuit sugarcoats the matter by

claiming the taking is temporary so the associated loss is

small, such that once the temporary restriction is over the

landowner can go about his business. The obvious

rejoinder is that the financial deprivation is a function of

both the value of the underlying property and the dura-

tion of the temporary restrictions. The general rules of

discounting, as applied to land valuation, make it crystal

clear that the loss of the use of land today cuts much

more deeply than the like loss of the use of the land

twenty years from now. Take a plot of land worth

$100,000. With a discount rate of 3 percent per year, then

a three year moratorium reduces the value of the prop-

erty by at least $9,000; the twenty year moratorium

reduces its value by $46,000; raise the discount rate to 4

percent, and those numbers become about $12,500 for the

three year deprivation and about $53,000 for the twenty

year deprivation. Even these calculations understate the

risk to the landowner. Uncertain delays make it harder to

plan the ultimate development of the land, and expose

the owner to the costs of litigation that are nowhere

compensated under the law.

Nor is the argument against compensation strength-

ened by noting that a proper analysis of the Takings

Clause should guard against strategic behavior - acting

inconsistently with one’s true preferences in order to

obtain some short-term collateral advantage. See Pal-

azzolo, 121 S. Ct. at 2477-78 (Breyer, J., dissenting). The

ostensible concern is that landowners might consciously

divide their holdings in order to increase the odds of

getting compensation from the state. Yet nothing of that

sort happened here at all, for none of the 400 plus plain-

tiffs in this case have made a temporal division of their

17

land to bolster the claim that some retained term interest

was “the” entire property.

Strategic behavior is, moreover, a two-edged sword.

This Court struck down the effort of Rhode Island to

engage in strategic behavior by announcing its wetlands

restrictions before Palazzolo acquired his property, in an

involuntary distribution no less. See Palazzolo, 121 S. Ct.

at 2462-64. Similarly, in this case, the party trying to game

the legal system is TRPA. It knows that it cannot declare a

permanent moratorium on new development without

having to pay compensation under the Takings Clause, so

it has for twenty years engaged in its own actual regula-

tory severance by imposing a bewildering succession of

temporary moratoria. It was just this dreadful prospect

that led the Court in First English not to follow the princi-

ple for spatial segmentation that was laid out in Penn

Central, and nothing in the last fourteen years should lead

this Court to deviate from this result.

More generally, the only possible way to deal with

the dangers of strategic behavior on all sides is to follow

the rule that requires the state to pay full value to the

party who holds the interest at the time of the condemna-

tion. To return to Penn Central, suppose that the air rights

had been sold off years before New York announced its

landmark preservation ordinance. Does one treat the

prior sale as though it were strategic, and deny compen-

sation to the holder of the air rights because the Penn

Central Company can still make use of Grand Central

Station? That rule places a powerful crimp on the ordi-

nary alienation of land by leaving the buyer defenseless

against future regulation. As noted earlier, the compensa-

tion owed by the state should neither increase nor

decrease, solely because the air rights have been trans-

ferred when the ground rights have been retained. The

right result can only be achieved if the air rights receive

full compensation whether they are linked to or severed

18

from the ground rights. Under that rule, the only time

that the owner of the fee will sell the air rights is if they

are worth more (after transactions costs) to the buyer

than they were to himself - a value-maximizing transac-

tion that the law wishes to protect. The concern of con-

ceptual severance is, ironically, correct to the extent that

it counsels that private parties should have no incentive

to rearrange property rights solely to up the level of

compensation received. But that result is achieved only if

the property interest is fully compensated whether the

interest is retained or rejected.

Penn Central is not only wrongly decided, we believe,

but it also stands, as the Ninth Circuit rightly perceived,

in mortal tension with both First English and such earlier

cases as Causby and Kimball Laundry. The most glaring

anomaly in the law of takings generally is why this Court

should treat the tiniest physical occupation as a categori-

cal taking generating a well-nigh per se obligation to

compensate, see Loretto v. TelePrompter, 458 U.S. 419

(1982), while land use restrictions that devastate the

value of property are judged by a far less restrictive

standard. It cannot be unraveled by overturning Loretto,

for then the Takings Clause becomes a dead letter. But the

anomaly can be extirpated by overturning Penn Central,

so that the greater the government intrusion, be it by

taking or regulation, the greater the presumptive obliga-

tion to pay.

Overturning Penn Central brings the Takings Clause

into harmony with the private law of property, where the

distinction between physical occupation and land use

restrictions has no resonance. There both easements,

which authorize entries that would otherwise count as

trespasses, and restrictive covenants, that render unlaw-

ful otherwise permissible uses, are treated as property

interests. These interests are both subject to recordation;

they run with the land, and they afford their owners both

19

monetary and injunctive relief; and they are both pro-

tected against state condemnation. So long as federal

takings law takes its cue from the state law of private

property, the categorical distinction that Penn Central

seeks to erect between easements (that invade) and cove-

nants (that restrict) land use cannot be justified by insist-

ing, falsely, that the level of dislocation from the

government action is greater with the physical occupa-

tion of a tiny corner of one’s property for a day than for a

comprehensive moratorium that lasts for years.

Nor is there any intelligible way to rank permanent

partial restrictions on land use (e.g., zoning restrictions)

as either more, or less, severe temporary total restrictions,

such as those found here and in First English. It all

depends on the facts. Sometimes the partial permanent

restriction will bite more deeply into the landowner’s

common law rights than the total temporary restriction,

and sometimes not. This Court's recent decision in Pal-

azzolo noted the intellectual “discomfort” with the entire

denominator conception. 121 S. Ct. at 2465. The time has

come for removing the discomfort by transforming the

analysis. The key to understanding the overall problem

lies in the general approach of First English, namely, that

in takings cases what matters is the interest that is taken,

not that is retained by the owner. The size of the original

bundle of rights is neither here nor there, unless it can be

shown that the taking of one portion of the land serves to

increase (as by access to a new public road) or decrease

(as by noise or pollution) the value of what is retained.

Justice Stevens in his First English dissent noted that

property can be measured over three dimensions, space,

use and duration. See First English, 482 U.S. at 330, para-

phrased in Tahoe-Sierra, 216 F.3d at 764. See also Judge

Kozinski’s dissent of the denial of the en banc petition for

rehearing. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Planning Agency, 228 F.3d 998, 999 (9th Cir. 2001) (noting

20

that the Ninth Circuit rejected sub silento First English).

The only correct inference to draw from his observation is

that any diminution along any dimension of ownership is

prima facie compensable. That position does not entail

that any change in market value attributable to changes

in the local environment is subject to compensation. It

only implies that whenever the state takes a stick from the

bundle of rights, it should compensate for the loss unless

it can show some justification for its action.

The stakes here are high. The consistent application

of this position would require overturning the outcome in

Penn Central to the extent that it held that the loss of air

rights did not give rise to a prima facie right of compen-

sation. Yet that result would be welcome because it

would end the discontinuity between that case on the one

hand, and First English, Kimball Laundry and Causby on

the o’ er. Overruling Penn Central on this point, as a

select »e imposition of an improper system of “spot zon-

ing removes the disproportionate impact on isolated

ov .s in manner as Justice Black’s maxim in Armstrong

“e, aires. All partial takings by way of land use restriction

should be subject to the same prima facie rules for com-

pensation as a physical occupation for a limited period of

time. The First English case held that for temporary total

takings. At the very least, nothing in Penn Central dimin-

ishes First English’s continued vitality. And First English’s

vitality calls for overruling Penn Central.

III. The Police Power Justifications for the State,

While Present in this Case, do not Justify a Dis-

proportionate Burden on These Plaintiffs.

A. This Case Raises Police Power Issues Dramati-

cally Different From Those in First English.

Thus far this brief has argued that the temporary

total land use restrictions in this case should be regarded

21

as prima facie compensable under the First English rule.

The question then arises whether the state can justify the

restriction in question. This issue also arose in First

English itself, where the state claimed public health and

safety justifications for preventing the rebuilding of the

flooded land. The plaintiff in that case sought to parry

the force of this argument by alleging that the initial

flooding had resulted from government policies that cre-

ated dangerous conditions on upstream waters. See First

English, 482 U.S. at 308. But once that tort claim was

rejected as resting on what was adjudged an untenable

strict liability theory in tort, id. at 309 n.3, then little was

left to the plaintiff's case. On remand, the California

Appellate Court treated the flooding as caused by an act

of God, and accordingly had little difficulty in holding

the County justified in preventing the reconstruction of

the facility to protect disabled children who might use it.

First English Evangelical Lutheran Church v. County of Los

Angeles, 258 Cal. Rptr. 893, 210 Cal. App. 3d 1353 (1989).

First English thus never raised the question of whether

the plaintiff’s conduct could be restricted on the grounds

that it created a nuisance that could harm others.

This case presents radically different issues. No one

could claim that any restrictions on new construction are

necessary to protect the lives of the prospective occu-

pants. Rather, the entire case turns on the question of

whether the construction of additional homes would cre-

ate a nuisance to public waters. In allowing plaintiffs

some recovery, the District Court relied on decisions of

California courts that held that the tort of nuisance

required an actual discharge of waste or harmful sub-

stances by the plaintiff onto public lands or waters or the

private lands and waters of others. See Appendix to Peti-

tion for Certiorari at 120-26 (citing, e.g., Joerger v. Pac. Gas

& Elec. Co., 207 Cal. 8, 276 P. 1017, 1025 (Cal. 1929)).

22

No one questions that cases of discharge, especially

of filthy or noxious substances, count as the core cases of

nuisances that can be enjoined, without compensation,

under the state police power. Here, if one person is solely

responsible for the discharge, the law should come down

on the perpetrator alone, so that it would be grotesque to

allow him to claim that he has been singled out for

special treatment in violation of the Armstrong principle.

He has singled out himself for the harsher treatment that

he deservedly receives.

The instant case, however, differs from the canonical

nuisance cases cited below in two ways. First, it does not

involve any discharge of waste materials into public

waters. Rather, it asks whether the defendant has created

a nuisance by paving over the land, without discharging

any substances into public waters. Second, the following

question arises whether or not this broad account of

nuisance is adopted: which of the many individuals who

have built, or might build, in the Tahoe basin should bear

the responsibility for the improvement of the condition of

Lake Tahoe? The District Court focused exclusively on

the first, and could not find any California precedent that

extended the idea of nuisance to cover this case. It then

followed the instructions of Lucas, which stated:

we believe similar treatment must be accorded

confiscatory regulations, i.e. regulations that

prohibit all economically beneficial use of land:

Any limitation so severe cannot be newly legis-

lated or decreed (without compensation), but

must inhere in the title itself, in the restrictions

that background principles of the State’s law of

property and nuisance already placed upon land

ownership. Lucas, 505 U.S. at 1029.

23

Lucas then continued:

The fact that a particular use has long been

engaged in by similarly situated owners ordi-

narily imports a lack of any common-law prohi-

bition (though changed circumstances or new

knowledge may make what was previously per-

missible no longer so), see [Restatement (Sec-

ond) of Torts], § 827, Comment g. So also does

the fact that other landowners, similarly situ-

ated, are permitted to continue the use denied to

the claimant.” Lucas, at 1031.

The District Court found only one long-term statu-

tory provision that met these requirements, the state’s

statutory definition of a nuisance,? which by any fair

reading does not appear, as it concluded, to cover the

situation presented here. But as a matter of tort theory

the District Court’s conclusion of no nuisance is not iron-

clad, for a respectable case could be made for the propo-

sition that the paving and building over the ground

should, in light of the external harms (none of which

were alleged or plausible in Lucas), be treated like a

nuisance, subject to the state police power. Arguably, the

situation comes quite close to the general rule in Rylands

v. Fletcher, L.R. 3 H.L. 330 (H.L.E. 1868), which holds a

party liable for harm caused when substances a land-

owner “brings, keeps or collects” on his own land escape.

To be sure, no homeowner has captured water in a reser-

voir that leaks. But some weight could be properly

3 “Anything which is injurious to health . . . or is indecent

or offensive to the senses, or an obstruction to the free use of

property, so as to interfere with the comfortable enjoyment of

life, or unlawfully obstructs the free passage or use, in the

customary manner, of any navigable lake, or river, bay, stream,

canal or basin, or any public park, square, street or highway, is a

nuisance.” Cal. Civ. Code § 3479, quoted in Appendix to Petition

for Certiorari at 120. For the analogous provision, see N.R.S.

40.140(1), quoted in Appendix at 125.

24

attached to the decision of any landowner - public or

private — paving over open land so as to divert water that

would otherwise be collected or absorbed onto the plain-

tiff’s land in ways that do harm. That rule would substan-

tially extend liability as it is currently found virtually

everywhere in the United States, for leaking reservoirs

are something of a rarity, but asphalt highways and

driveways are not. It is difficult to hazard a guess in the

abstract as to what kind of ordinance or liability rule

regulating paving and similar activities should pass mus-

ter under the police power, when state actions are exam-

ined, as we believe they should be, under an intermediate

standard of scrutiny. But in our view, there is surely a

substantial possibility that the state could remain within

the confines of “background” common law principles, as

construed in Armstrong and Lucas, by adopting a general

rule of tort liability for these activities, or by imposing

well-tailored nondiscriminatory administrative limita-

tions on this conduct.

B. Whether or not Paving Over Open Lands Con-

stitutes a Nuisance, these Plaintiffs Should not

be Required to Bear the Full Costs of Protecting

Lake Tahoe without Receiving Just Compensa-

tion.

The uncertainty in the definition of a nuisance only

addresses one part of the Lucas police power analysis,

which to our knowledge has never been systematically

applied to cases of joint behavior by multiple land-

owners. In the case where the state seeks to enjoin one

landowner from certain activities, the question of

whether his activity rises to a level of a nuisance becomes

decisive under Lucas. Fortunately, in the context of joint

activities, it is no longer necessary to decide whether

state common law or statutes have, or should, extend

their conception of nuisance law. Somewhat surprisingly,

25

in this context of multiple independent landowners, com-

pensation is required in both cases to counteract, as Arm-

strong and Lucas require, the disproportionate impact of

state regulation on similarly situated individuals that Lucas

condemns. The gist of the matter here is that these plain-

tiffs are denied the identical uses allowed to other parties

who have been fortunate enough to build on their sites

before TRPA passed its restrictive legislation. In line with

Armstrong some adjustments must be made to rectify the

injustice of forcing one class of innocent owners to bear

the entire burden of those precautions introduced in

order to protect the water quality of Lake Tahoe from

further degradation, even if their activities fall into the

nuisance category. It is therefore useful to analyze the

police power of TRPA’s state first on the assumption that

paving over natural terrain does not constitute a nui-

sance, and then on the assumption that it does.

To structure the analysis, begin with a simplified

model in which 100 identica! plots of land surround Lake

Tahoe. Assume further that construction on any given

plot of land increases the runoff and thus reduces the

water quality in the Lake, but does not constitute a nui-

sance. In principle the social objective for this community

is to allow construction until the marginal social cost of

building on an additional plot, including the overall neg-

ative impact on the Lake, is greater than the marginal

benefit from that additional construction. In the absence

of regulation, each landowner will tend to ignore the

decrement that his construction will have on the quality

of the Lake. In the early stages, these costs may well be

low so that the construction makes sense from a social

point of view. But the harm is likely to increase with each

additional unit constructed, so that we can reach some

maximum level of permissible construction. That judg-

ment rests on a mixture of political and scientific consid-

erations sorted out by legislative or administrative

26

determination. Solely for the purposes of exposition, we

assume that it allows for the construction of single-family

homes on 60 percent of the plots.4

In a world in which no one has undertaken any

construction, the best method for development is to auc-

tion off the building rights so that they go to those who

value them most, and then to divide the total proceeds

received among those individuals who are denied the

right to build. That system allows for (1) the optimal level

of construction as determined by environmental consider-

ations, (2) the efficient selection of the sites on which

construction takes place, and (3) compensation to the

nonbuilders who therefore are spared disproportionate

impact. The bidding system thus allows for both the

equitable division of the burden and for a full realization

of the environmental interests. It also conforms with the

dicta in Lucas that call for compensation when one group

of individuals is denied the development rights granted

those who are similarly situated.

In this case, however, some of the units have been

built before restrictions have been put in place. It is no

longer possible to adopt a bidding system to allocate the

development rights where they are valued the most. But

it is possible to require the side payments to the extent

that TRPA now decides by fiat to impose the entire bur-

den of environmental protection on those individuals

who have yet to build so that local residents can continue

to enjoy the beauty of the Lake. The correct solution

therefore is to impose a tax on those who have developed

their lands to compensate the others for the loss of their

development rights, be they great or small. If it is argued

* Ironically, a better approach might well call for the

construction of some multi-family dwellings, which would

reduce the level of ground covered for each new resident. We

put such complications aside here.

27

that the benefits of preserving Lake Tahoe extend beyond

its immediate users, then the states of California and

Nevada could chip in some additional funds to reduce

the burdens on local residents who have already built.

This regime will force current homeowners (and the two

states) to decide just how much they value the purity of

Lake Tahoe because now they must pay for whatever

benefits they receive. We thus have a system that respects

environmental objectives without imposing undue bur-

dens on a select and vulnerable portion of the population.

This system is far preferable to one that allows the domi-

nant faction to keep all the benefits of their own homes

while denying all other landowners, without compensa-

tion, the prospect of building at all.

Now suppose, however, that the plaintiffs would

have created a nuisance by paving over their open land.

It still follows that they should be compensated for keep-

ing their lands open. Once the definition of nuisance is

expanded to catch the plaintiffs, then it has to be

expanded, in line with Armstrong and Lucas, across the

board. Accordingly, it follows that all existing owners of

built-up land have committed continuing nuisances that

have caused harm to Lake Tahoe, and will be allowed to

wreak damage without limitation in the future. The ques-

tion then arises, what should be the fair allocation of

burden among these parties. According to TRPA, all of

the burden of precautions should be cast upon the plain-

tiffs, even though all the previous damages have been

caused by the established homeowners within the area.

The adoption of this one-sided rule invites unwanted

strategic behavior by encouraging premature (and harm-

ful) development of land in order to gain a priority over

one’s neighbor. Of course, it may be costly and counter-

productive to rip down one house in order to build

another. That said, the appropriate remedy is to tax those

28

individuals who have, by hypothesis, committed nui-

sances in order to pay the compensation that equalizes

the burden between them and their neighbors.

Some differences still remain between the nuisance

and the nonnuisance scenarios, but they do not go to the

compensation question. Thus if all defendants have com-

mitted a nuisance, then there is less warrant for asking

California and Nevada to contribute funds raised from

general revenues to ameliorate the danger. All of the

burden could be placed on those homeowners responsi-

ble for the damages. Similarly, if a single landowner held

title to all the land around the basin, then under Lucas,

TRPA could enjoin his operations without the payment of

compensation if that activity were adjudged a nuisance,

but not if it were found te be a lawful use of property. It

follows therefore that even the most systematic exposi-

tion of takings law leaves some hard cases close to the

edge of the police power, for just as there are borderline

cases under the private law of nuisance, so too are there

under the police power that is parasitic on these private

law conceptions. But none of those complications matter

in this case, for whether we treat new construction as

lawful or tortious, there is no warrant favoring those who

have done everything to create and nothing to abate the

condition in question. Compensation should therefore be

paid to these plaintiffs for their loss.

IV. The Need for Orderly Planning does not Justify the

Endless Delays Imposed in this Case.

The only issue that remains for discussion is the

scope of First English’s observation that its holding did

“not deal with the quite different questions that would

arise in the case of normal delays in obtaining permits,

changes in zoning ordinances, variances, and the like.”

482 U.S. at 321. Initially, nothing in First English covered

29

temporary moratoria, and that upholding any constitu-

tional claim against government necessarily limits the

reach of government discretion. Id. at 321-22. Nor is it

improper to clip the wings of planning authorities. These

groups respond to the pressures of local residents, not

those absentee landowners who do not vote in local elec-

tions. Strategic delay allows the locals to achieve their

goal without paying their way. The dangers of faction

and bias can only be countered by giving the outsiders

the protection of a nondiscrimination rule (similar to that

adopted in this Court’s dormant commerce clause juris-

prudence) to offset the outcomes of political processes in

which they do not fully participate. Here the plaintiffs do

not ask for any special treatment; they only do not want

to be subject to discrimination that favors those privi-

leged homeowners as against themselves. The dispropor-

tionate impact test does not tell the local powers how

much environmental protection to demand. It only tells

them that they cannot cast the entire burden of protection

on a select group of individuals who have yet to build at

all.

This entire scheme of checks and balances would be

undercut if planning authorities could cloak their deci-

sions to exclude in endless deliberations and reviews. The

use of the term “normal” delays in First English shows

that this Court was alert to the possibilities of abuse.

Drawing the line between normal and excessive delibera-

tion is, however, a daunting task. This problem is not

acute when all the parties to the dispute are similarly

situated, for then each shares a pro rata portion of bene-

fits and costs. But in cases like the present, where the

distribution of benefits and burdens is manifestly

skewed, everyone knows that delay works for the benefit

of one group and one group only. Accordingly, when the

current positions are so skewed, the best result is to

30

require periodic compensation to those bound by tempor-

ary restrictions along the lines of Kimball Laundry. Once

the regulations are finalized then a more complete reck-

oning is possible.

In the alternative, if this privilege is recognized even

when the burdens of its implementation are skewed, then

it should be strictly limited. Tests that balance one factor

against another are not worth the candle, and invite

endless rounds of litigation on collateral issues. The bet-

ter approach by far is to allow a short fixed period for

deliberations to take place without compensation - say,

maximum one year — after which the just compensation

requirements under the disproportionate impact test

should kick in as described above. This case goes so far

beyond the pale that no matter what the ultimate rule

going forward, the defendants should not receive any

protection under it in this case.

CONCLUSION

For the reasons stated above, the decision of the

Ninth Circuit should be reversed, and the case remanded

for a determination of the level of just compensation

owing to the plaintiffs for the temporary taking of their

lands.

Respectfully submitted,

RicHarp A. EpstTeIn INSTITUTE FOR JUSTICE

1111 East 60th Street *"WituiaM H. MELLor

Chicago, IL 60637 Cunt Bouick

(773) 702-9494 Scott G. BuLLOcKk

1717 Pennsylvania Ave., NW

Suite 200

Washington, DC 20006

(202) 955-1300

“Counsel of Record

——— ee ow «a