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

No. 00-1167

In the

SUPREME COURT OF THE UNITED STATES

+

TAHOE-SIERRA PRESERVATION COUNCIL, INC..

Petitioners,

v.

TAHOE REGIONAL PLANNING AGENCY,

Respondent.

+

On Writ of Certiorari

To the Court of Appeals for the Ninth Circuit

+

BRIEF OF THE STATES OF VERMONT,

ALASKA, ARIZONA, CONNECTICUT,

FLORIDA, HAWAII, [OWA, LOUISIANA

YLAND, MASSACHUSETTS, MONTANA,

NEW JERSEY, NEW YORK, NORTH

CAROLINA, OKLAHO OREGON, RHODE

ISLAND, SOUTH DAKO A. TENNESSEE,

TEXAS, AND WASHINGTON

AND THE COMMONWEALTH OF PUERTO

RICO, AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

.

WILLIAM H. SORRELL

Attorney General of Vermont

* BRIDGET ASAY

Assistant Attorney General

109 State Street

Montpelier, Vermont 05609

(802) 828-3181

* Counsel of Record

[additional counsel listed on inside cover]

BEST AVAILABLE COPY

BRUCE M. BOTELHO

Attorney General of Alaska

P.O. Box 110300

Juneau, AK 99811

JANET NAPOLITANO

Attorney General of Arizona

1275 West Washington

Phoenix, AZ 85007-2926

RICHARD BLUMENTHAL

Attorney General of Connecticut

55 Elm Street

Hartford, CT 06141

ROBERT A. BUTTERWORTH

Attorney General of Florida

The Capitol, PL-01

Tallahassee, FL 32399-1050

EARL 1. ANZAI

Attorney General of Hawan

425 Queen Street

Honolulu, HI 96813

THOMAS J. MILLER

Attorney General of lowa

Hoover State Office Building

Des Moines, IA 50319

RICHARD P. IEYOUB

Attorney General of Louisiana

Department of Justice

P.O. Box 94095

Baton Rouge, LA 70804-9005

J. JOSEPH CURRAN, JR.

Attorney General of

Maryland

200 St. Paul Place

Baltimore, MD 21202

THOMAS F. REILLY

Attorney General of

Massachusetts

One Ashburton Place

Boston, MA 02108

MIKE MCGRATH

Attorney General of Montana

215 N. Sanders

P.O. Box 201401

Helena, MT 59620-1401

JOHN J. FARMER, JR.

Attorney General of New jersey

R.J. Hughes Justice Complex

25 Market Street

P.O. Box 080

Trenton, NJ 08625

ELIOT SPITZER

Attorney General of New York

120 Broadway

New York, NY 10271

ROY COOPER

Attorney General of North

Carolina

P.O. Box 629

Raleigh, NC 27602

W. A. DREW EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Boulevard

Suite 112

Okiahoma City, OK 73105-4894

HARDY MYERS

Attorney General of Oregon

1162 Court St. N.E.

Salem, OR 97310

ANABELLE RODRIGUEZ

Attorney General of the

Commonwealth of Puerto Rico

P.O. Box 192

San Juan, PR 00902-0192

SHELDON WHITEHOUSE

Attorney General of

Rhode Island

150 South Main Street

Providence, RI 02903

500 East Avenue

Pierre, SD 57501-5070

PAUL G. SUMMERS

Attorney General of Tennessee

425 Fifth Avenue North

Nashville, TN 37243

JOHN CORNYN

General of Texas

P.O. Box 12548

Austin, TX 78711-2548

CHRISTINE O. GREGOIRE

General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

QUESTION PRESENTED

Whether the Court of Appeals properly determined

that a temporary moratorium on land development

does not constitute a taking of property requiring

compensation under the Takings Clause of the United

States Constitution?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................csssccccccsssssseeeees iv

INTEREST OF THE AMICI CURIAE........................ 1

INTRODUCTION AND SUMMARY

TTI vccceistestetivabsinnininntteginessiempenennensiubite 2

TITTTIET siscishiieniasinbidainieepinteipiatmabatndiinieideepeinnaiell 4

I. Temporary moratoria are an accepted and

critical element of the land use planning

A. State and local governments use

temporary moratoria as a reasonable

response to serious problems. ...................+..+++ 4

B. Temporary moratoria protect and

improve the planning process. .....................+. 10

C. Temporary moratoria are already subject to

reasonable limitations that protect property

II. This Court’s precedents do not support a

categorical takings rule for temporary

ED ecevcdncenncccrnsinctetesndinnnenemantremanernenen 15

A. Petitioners fail to understand the sharp

distinction between physical takings and

gg ee 17

B. The Court’s narrow decision in Lucas does

not apply to a regulatory takings claim

based on a temporary development

I ccntensisdDictenigrunanesictnsensantsasensinenenscecests 20

C. First English does not require a holding

that any temporary moratorium is a per

Ft icteneainenensatinnsiiahiiipenmeeinepniantinemescones 24

ee Riccrccatncnccccessventenmnenmnsscenvesnnseesescssnevensnens 25

IV

TABLE OF AUTHORITIES

Page

CASES:

Agins v. City of Tiburon, 447 U.S. 255

Ge cesndesincncenetiinsicittesiilincnninndntiidmantieaasimiiiiaiiiatsas 19, 22, 23

Almquist v. Town of Marshan,

245 N.W.2d 819 (Minn. 1976).............ceeeeeeees 5,9

Brazos Land, Inc. v. Board of County

Comm'rs, 848 P.2d 1095

es ets SS BID catceriitnscrcinctiaiibitititerenttbccsnsstbonie 6

Cappture Realty Corp. v. Board of Adjustment,

336 A.2d 30 (N.J. Super. Ct. App. Div. 1975)........ 8

Connolly v. Pension Benefit Guaranty Corp.,

ee Ss Ci innicncasinteiniteniinsadbiinanndniameninicceniat 19

Deal Gardens v. Loch Arbour, 226 A.2d 607

SS EIS cciscinrnsuintantepeninnmpertiidsitendeniiitaeeianateineeniiets 13

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

First English Evangelical Lutheran Church

v. County of Los Angeles,

258 Cal. Rptr. 893 (Cal. Ct. App. 1989).............. 7,8

First English Evangelical Lutheran Church

v. County of Los Angeles,

ee Se ee i ectharencinnintisiiitciarsneisiaiccccscnded passim

Fowler v. Obier, 7 S.W.2d 219 (Ky. 1928) .............00.. 5

Vv

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

Eisele aciiiastsiespenietncaianeiininsnscnnsiaauinnseiecsnemennsvesets 17, 18

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227

Pea, TT iasdineishetiadetenoeitcndntpaieunninennnentteeneeeiseumaseentes 7

Keystone Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470 (1987).........::c:ccceeeeeees 19

Lakeview Apartments v. Town of Stanford,

485 N.Y.S.2d 801 (N.Y. App. Div. 1985)............... 13

Loretto v. Teleprompter Manhattan CATV Corp.,

466 U.S. 419 (1962)......cccccccccccrrrcceees 2, 17, 18, 19, 20

Lucas v. South Carolina Coastal Council,

EE iieccccsnstnsssincccsescsssccscscoecee passim

Miller v. Board of Public Works,

IS I incicrncetscsssssscsccssssevescsenseeccesn 10

Palazzolo v. Rhode Island, 121 S.Ct. 2448

sient tisvssudiinsinlendtopberencccssscens 9, 15, 16, 19, 23

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

ae ee citeccnictencccnescncecenscccnesccssces passim

Pennsylvania Coal v. Mahon,

es Gt ET hnctincinctiinitinccccesecssonssessescostascnstes 21

@.C. Constr. Co. v. Gallo, 649 F. Supp. 1331

SII Tihs tecaenedantncnutenpimmebenndecnnseesceneeees 14

Schafer v. City of New Orleans, 743 F.2d 1086

SPIE TIE osianinarinenntnistnsbesnestpesgnccecsessnesetensonnersnees 6

vi

Schiavone Constr. Co. v. Hackensack

Meadowlands Dev. Comm’n, 486 A.2d 330

FR ROR Oe ti ere 13, 14

Schoeller v. Board of County Comm’rs,

Eg, , FEE eee eee 13

Smoke Rise, Inc. v. Washington Suburban

Sanitary Comm’n, 400 F. Supp. 1369

ERE Rare a ts ad ase 5, 6, 14

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

34 F. Supp. 2d 1226 (D. Nev. 1999)..............cce0000 16

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 216 F.3d 764

IRIN ic RRP OR ce 8,16

Westwood Forest Estates v. Village of South

Nyack, 244 N.E.2d 700 (N.Y. 1969)..............::c0008 14

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

es a 6,9

Woodbury Place Partners v. City of Woodbury,

492 N.W.2d 258 (Minn. 1992)..............cccccesseseees 7,9

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

ea CE, See iainciialnnteintiniientntiaditinipitinibniendiinss 5,9

STATUTES AND LEGISLATIVE MATERIALS:

Colo. Rev. Stat. § 30-28-121 (2001)... eeeeseeeees 13

Vii

Mont. Code Ann. § 76-2-306 (2001)..............:.cccceeeees 13

Or. Rev. Stat. § 197.520 (1999) ............csesecceseoees 13

OTHER MATERIALS:

JoAnne L. Denec, Economic Incentives:

Alternatives for the New Millenium,

12 Natural Resources & Env.

een noe 12

Robert H. Freilich, Interim Development Controls:

Essential Tools for Implementing Flexible

Planning and Zoning, 49 J. Urban Law

IIIT hciicdnetnncinedaghatinsvcogtinskeuntenneneun setntiences 10, 22

Patrick J. Rohan, Zoning & Land Use Controls __

(Eric Damian Kelly ed., rev. 2001)............0++. passim

Norman Williams, Jr. & John H. Taylor, American

Planning Law (rev. 1988) .........ccccccssecseceeeserereeeesees 5

Kenneth H. Young, Anderson’s American Law

of Zoning (4% ed. 1996) .........cscccsecerreeeeereres 5,11, 13

INTEREST OF THE AMICI CURIAE

The States and their local governments bear

primary responsibility for the Nation’s land use

planning and resource management efforts. This case

' calls into question the constitutionality of a vital

planning tool: the short-term development moratorium.

States and local governments use temporary moratoria

to address urgent and serious planning problems,

including environmental concerns, traffic hazards, and

excess demand for basic services. Temporary moratoria

can be a critical tool for effective planning, because

moratoria preserve the status quo while citizens and

lawmakers develop appropriate, reasoned responses to

the problems associated with development.

A categorical rule that any temporary ban %n

development is a “taking,” regardless of its purpose,

duration, or effect on property values, would greatly

reduce the ability of State and local governments to

manage development in ways that protect the

environment and public health, increase property

values, and benefit the public as a whole. Such a rule

would also impose significant financial burdens on

State and local taxpayers, who may have to

compensate property owners for minor delays and

fluctuations in value caused by past and current

moratoria. The amici States have a keen interest in

defending the use of reasonable, short-term

development moratoria as an element of the land use

planning process.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Although petitioners and their amici seek to

engage this Court in the tortured history of this

litigation, the Court has chosen to address a single

issue: whether a temporary moratorium on

development is a categorical taking. This issue cannot

be limited to the context of the Tahoe Basin and the

restrictions placed on petitioners’ property. In urban,

suburban, and rural areas of the country, lawmakers

from time to time find it necessary to impose

temporary bins on development to address pressing

problems of all kinds, from an overwhelmed sewer

system to traffic congestion. Numerous state and

federal courts have concluded that reasonable

temporary moratoria are not takings. The amici States

urge this Court to uphold the decisions of these courts

and the Court of Appeals below, for two reasons.

First, temporary moratoria are an accepted and

necessary part of the planning process, because they

permit communities to respond to urgent problems and

because they facilitate the planning process. The

existing lega! framework allows flexibility in the

planning process while placing sufficient restrictions

on the use of moratoria to protect the legitimate

interests of property owners.

Second, a rule that any short-term ban on

development is a per se taking would be a significant

departure from this Court’s precedents. By definition,

a temporary ban on development involves neither a

3

physical intrusion nor a total deprivation of value. The

Court’s reasoning in cases such as Loretto uv.

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

(1982), and Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), cannot easily be extended to

apply to a temporary regulation that has only a minor

impact on property values. Although petitioners place

substantial reliance on First English Evangelical

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

that case addresses only the remedial issue of

compensation for a regulatory taking. It does not

support a rule that a moratorium designed to be

temporary necessarily works a taking of property.

4

ARGUMENT

I. TEMPORARY MORATORIA ARE AN

ACCEPTED AND CRITICAL ELEMENT OF

THE LAND USE PLANNING PROCESS

A. State and local governments use temporary

moratoria as a reasonable response to

serious problems.

In a perfectly managed and predictable world,

temporary moratoria would be unnecessary. Well-

trained, fully funded professional planners would

develop long-term plans that would fully anticipate

every possible change a community might experience.

Municipal services would never be stressed, traffic

would remain forever manageable, open spaces would

not be threatened, environmental problems would not

develop. But we do not live in such a world. In this

world, most land use planning is handled by local

officials with little time and less money. Citizen

boards make valiant efforts to develop long-term plans

for their communities, but they are often hampered by

lack of information and resources. And this world,

most evidently, is not predictable. Change may come

quickly, and local communities may be unprepared for

the consequences. State and local governments need

tools to respond to change while protecting important

community interests, including property values.

A temporary moratorium — a short-term ban on

development — is one such tool. Temporary moratoria

“freeze” the status quo, preventing further harm while

the community studies the problem and prepares a

response. Communities have used moratoria

5

(sometimes called “interim” or “stop-gap” zoning) for

decades, with the approval of state and federal courts.

See, e.g., Fowler v. Obier, 7 S.W.2d 219 (Ky. 1928)

(upholding emergency ordinance limiting issuance of

building permits pending comprehensive zoning plan);

Smoke Rise, Inc. v. Washington Suburban Sanitary

Comm'n, 400 F. Supp. 1369 (D. Md. 1975) (upholding

five-year moratoria on sewer connections). Both

reported decisions of the lower courts and scholarly

writings on the subject evidence a widely accepted view

that, properly used, temporary moratoria are an

appropriate response to serious concerns. See, e.g.,

Norman Williams, Jr. & John H. Taylor, 1 American

Planning Law §§ 30.01-.05 rev. 1988) (discussing issue

and collecting cases); Kenneth H. Young, 1 Anderson’s

American Law of Zoning § 5.24 (1996 ed.) (same);

Patrick J. Rohan, 3 Zoning & Land Use Controls $§

22.01-22.04[2] (Eric Damian Kelly ed., rev. 2001)

(same).

Perhaps the most common reason for a temporary

moratorium is an unexpected surge in development or

change in development patterns that prompts a

community to reexamine its planning efforts. See, e.g.,

Almquist v. Town of Marshan, 245 N.W.2d 819, 825-26

(Minn. 1976) (upholding six-month moratorium where

small-town board “was confronted with four developers

proposing plans which would have a profound effect on

economic, esthetic, and engineering problems for many

years to come”). Development may threaten the

traditional rural character of an area, as farms and

open space disappear. See id. at 827-28 (following

moratorium, town adopted zoning for agricultural

preservation); Zilber v. Town of Moraga, 692 F. Supp.

6

1195, 1206-07 (N.D. Cal. 1988) (upholding town’s one

and a half year moratorium, pending open space

study). Commercial growth may also pose new

challenges for an urban area, as, for example, when

incompatible uses encroach upon a historical district.

See Schafer v. City of New Orleans, 743 F.2d 1086,

1088, 1090 (5 Cir. 1984) (upholding city moratorium

on fast-food development in “picturesque” and

“historically important” neighborhood); see also

Williams v. City of Central, 907 P.2d 701, 705-06 (Col.

Ct. App. 1995) (approving city’s ten-month moratorium

on development in gambling district, pending study on

city’s ability to absorb growth spawned by legal

gambling). Faced with development pressures,

communities have traditionally used interim controls,

including moratoria, to “inhibit or prevent new growth

while an area is being studied” for initial or revised

zoning. Rohan, 3 Zoning & Land Use Controls §

22.01[1], at 22-5.

Rapid development may also outpace available

municipal services. See id. § 22.01[2], at 22-8

(communities may temporarily deny development

where public services are overloaded). Temporary bans

on new sewer connections have been justified by

pressing public health concerns, as growing

populations overwhelmed existing systems. See, e.g.,

Smoke Rise, 400 F. Supp. at 1373, 1383 (upholding

sewer moratoria based on inadequate facilities and

discharges of untreated sewage into waterways);

Brazos Land, Inc. v. Board of County Comm'rs, 848

P.2d 1095, 1096, 1101 (N.M. Ct. App. 1993) (upholding

nine-month moratorium on subdivision approvals

designed in part to allow time to promulgate more

7

stringent waste disposal requirements). Potential

water shortages have prompted temporary develop-

ment moratoria. See Kawaoka v. City of Arroyo

Grande, 17 F.3d 1227, 1237 (9% Cir. 1994) (approving

one-year moratorium in light of drought conditions and

estimates of city water shortages if additional

development was approved). And, aside from

immediate public health concerns, the demand for city

services and new infrastructure may expand faster

than the tax base, resulting in budget and tax

problems that require additional time for resolution.

Along with overwhelming municipal services,

rapid development may overwhelm the local highway

system. Towns and cities have to cope with frustrating

delays and possibly dangerous conditions caused by

traffic congestion — conditions that will only worsen if

development continues before road improvements are

possible. Not surprisingly, some cities have used

temporary moratoria to gain sufficient time to address

traffic problems. See, e.g., Woodbury Place Partners v.

City of Woodbury, 492 N.W.2d 258 (Minn. 1992)

(holding that city’s two-year moratoria on development

near highway interchange, pending traffic study, was

not a categorical taking).

Other public health and safety concerns provide

additional bases for interim bans on development. For

example, in a case that this Court already knows, the

County of Los Angeles adopted an interim ban on

development in a flood plain following a devastating,

lethal flood. First English Evangelical Lutheran

Church v. County of Los Angeles, 258 Cal. Rptr. 893,

895 (Cal. Ct. App. 1989). On remand from this Court,

the California appellate court concluded in part that

8

the ordinance was a reasonable temporary measure

that permitted the county to “conduct an extensive

study” to determine “what, if any, structures and uses

would be compatible with the preservation of life and

health of future occupants.” Id. at 906. A New Jersey

court similarly approved a moratorium on development

in a flood plain pending construction of a flood-control

project. Cappture Realty Corp. v. Board of Adjustment,

336 A.2d 30 (N.J. Super. Ct. App. Div. 1975).

Finally, serious environmental concerns such as

those facing Lake Tahoe may justify temporary limits

on development. No one disputes that Lake Tahoe was

at substantial risk of irreparable harm from continued

uncontrolled development. The situation was

sufficiently serious that Congress in 1980 approved

amendments to the Tahoe Regional Planning Compact

that directed the Tahoe Regional Planning Agency to

establish environmental threshold carrying capacities

and to develop a new regional plan. Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 216 F.3d 764, 766-68 (9% Cir. 2000).

Environmental harm can be difficult or impossible to

remedy, and it is not unreasonable for a planning

‘agency to put a temporary halt te damaging

development while studying the problem and looking

for a solution. See Rohan, 3 Zoning & Land Use

Controls § 22.01[1], at 22-5 (interim controls may be

used to protect “areas perceived to be environmentally

sensitive”).

What these cases from across the country show is

that local communities are struggling with serious

problems caused by development, and that temporary

moratoria are one step communities can take to

9

prevent significant harm. The cases do not reveal a

pattern of governmental abuse, but of responsible

behavior: a new problem prompts a short moratorium,

the problem is studied, zoning ordinances or other

regulations are changed, and the moratorium is lifted.

See, e.g., Zilber, 692 F. Supp. at 1197 (moratorium

expired after one and a half years; town studied zoning

for ridge and hillside open space and enacted new

ordinance); Williams v. City of Central, 907 P.2d at 703

(moratorium repealed after ten months, when growth

studies completed); Almquist, 245 N.W.2d at 822, 825

(moratorium lasted seven months; town consulted with

professional planners and developed comprehensive

zoning ordinance); Woodbury Place Partners, 492

N.W.2d at 260 (moratorium expired after two years;

city enacted moratorium in part to prohibit

construction that would adversely affect road design

and public health and safety). Without question,

temporary development moratoria have an established

and important role in the dynamic process of land use

planning.!

1 As set forth in Penn Central Transp. Co. v. City of New York, 438

U.S. 104, 124 (1978), a court reviewing a regulatory takings claim

must consider, among other factors, the “extent to which the

regulation has interfered with distinct investment-backed

expectations.” An existing regulatory regime “helps to shape the

reasonableness of those expectations.” Palazollo v. Rhode Island,

121 S. Ct. 2448, 2466 (2001) (O’Connor, J., concurring). The

common use of temporary moratoria in a jurisdiction thus may

bear on whether a property owner can show that a short-term ban

on development interfered with her reasonable expectations. See

id. at 2467 (noting the relevance of the “regulatory backdrop” to

a takings inquiry).

10

B. Temporary moratoria protect and improve

the planning process.

The “commendable task of land use planning,”

Dolan v. City of Tigard, 512 U.S. 374, 396 (1994),

requires, at a minimum, careful study and citizen

involvement. See generally Robert H. Freilich, Interim

Development Controls: Essential Tools for Implemen-

ting Flexible Planning and Zoning, 49 J. Urban Law 65

(1971) (stressing need for intelligent planning process,

including debate and citizen participation). Temporary

moratoria are a critical element in the planning

process, because they provide time for the process to

work. They do so in at least two ways: by preventing

a “race” to development when property owners learn

that land use restrictions may be changed and by

preventing a problem from getting significantly worse

before it can be addressed.

Courts have long recognized that temporary mora-

toria protect a community’s long-term development

goals by preventing a race to development. In 1925, the

Supreme Court of California upheld an emergency ban

on building multifamily housing, noting that a

comprehensive zoning plan “will take much time to

work out” and that it would be “destructive of the plan”

to permit certain construction “during the period of

[the plan’s] incubation.” Miller v. Board of Public

Works, 234 P. 381, 388 (Cal. 1925). Property owners

who know that land use restrictions may be changed

have an incentive to accelerate the pace of

development, and that development in turn may

ll

thwart the goals of the planning process. See, e.g.,

Freilich, 49 J. Urban L. at 78-79 (zoning effort may

prove futile as developers rush to build nonconcorming

uses); Rohan, 3 Zoning and Land Use Controls §

22.01[1] (“[djevelopers race to beat the imposition of

new controls”).

Without temporary moratoria as an option, local

officials face a difficult choice. Public participation and

investment in the planning process is both critical to

its success and fundamental to our democratic society.

See, e.g., Young, 1 Anderson’s American Law of Zoning

§ 5.24 (“validity of the plan and the success of its

implementation depend in large measure on criticism,

advice, and support [which in turn rest] upon wide

public understanding”). But public dissemination of

planning goals and potential zoning changes may

prompt a race to develop that will have an adverse

effect on the community’s long-term interests. As a

result, planning officials may feel pressure to limit the

opportunity for public comment, to protect the overall

goals of the planning process. Temporary moratoria

provide a safety valve in this situation, by preventing

inappropriate development while the community has

a full democratic debate over its future.

The second reason temporary moratoria serve a

critical purpose is the simple truth that problems

worsen over time, and solutions become more difficult

and more expensive. Lake Tahoe itself teaches this

lesson. If we had known in the 1950s what we know

now about Lake Tahoe, the affected communities

would have been able to control and plan development

to avert eutrophication of the lake. The same principle

governs other problems. As traffic congestion increases,

12

so do the delays and disruption caused by roadwork

and expansion projects. Coping with contamination of

waterways from raw sewage is more expensive than

halting development while sewer capacity is increased.

Temporary moratoria may allow time not only for

simpler, less expensive solutions but also for creative

approaches to problems caused by development. When

a problem first begins to emerge, a community may

have various options to address it. For example, a

community concerned about vanishing open space

might consider a package of zoning changes, tax

credits, and grants from outside sources to purchase

critical empty land. See generally JoAnne L. Dunec,

Economic Incentives: Alternatives for the New

Millenium, 12 Natural Resources & Env. 292 (Spring

1998) (discussing options to traditional regulatory

approach for resolving environmental and land use

challenges). A community facing rapid development,

however, may see those options vanish before it can

act. It may be too late to save a farm by purchasing its

development rights, or to preserve the historical

character of an old neighborhood by attracting the

interest of the right nonprofit group. A temporary

moratorium may make such creative solutions —

solutions that satisfy individual property owners and

the community — possible.

C. Temporary moratoria are already subject to

reasonable limitations that protect property

owners.

Although temporary moratoria have long been a

part of the land use planning process, planning officials

have not had free reign to impose unreasonable or

13

unjustified moratoria. Both the lower courts and state

legislatures have placed reasonable limits on

temporary moratoria that serve to protect the interests

of property owners. See generally Rohan, 3 Zoning and

Land Use Controls §§ 22.02, 22.03 (discussing validity

and constitutionality of temporary moratoria).

An obvious limit is that temporary moratoria

mvst, in fact, be temporary. Going beyond

constitutional requirements, several states place

specific statutory limits on the length of development

moratoria. See, e.g., Colo. Rev. Stat. § 30-28-121 (2001)

(moratoria not to exceed six months); Mont. Code Ann.

§ 76-2-306 (six months plus one to two year extension)

(2001); Or. Rev. Stat. § 197.520 (1999) (120 days plus

six-month extension). In the absence of a statutory

limit, courts have generally reasoned that a

“suspension or limitation [on development] may be

imposed only for a reasonable time.” Young, 1

Anderson’s American Law of Zoning § 5.24, at 449. For

example, the Wyoming Supreme Court, while

recognizing that an interim freeze may be valid, also

warned that municipalities could not “act so

lethargically as to effectively confiscate private

property.” Schoeller v. Board of County Comm'rs, 568

P.2d 869 (Wyo. 1977). Other courts have not hesitated

to invalidate a moratorium of unreasonable duration.

See Lakeview Apartments v. Town of Stanford, 485

N.Y.S.2d 801 (N.Y. App. Div. 1985).

What is reasonable, of course, depends upon the

context. As the Supreme Court of New Jersey has

recognized, there is no “inflexible rule” but “[eJach

situation must be assayed in its own particular factual

setting.” Schiavone Constr. Co. v. Hackensack

14

Meadowlands Dev. Comm’n, 486 A.2d 330, 331 (N.J.

1985) (quoting Deal Gardens v. Loch Arbour, 226 A.2d

607 (N.J. 1967)). One relevant factor may be the “time

required to reach and implement a final decision as to

the ultimate use of the property.” Id. at 333. In any

event, the inquiry is fact-specific. See id. (remanding

for further factual development where temporary

moratorium lasted significantly longer than the lower

court had predicted).

Courts have also considered the purpose of a

moratorium, and whether planning officials are acting

in good faith. See, e.g., Smoke Rise, 400 F. Supp. at

1384 (“it is important to examine whether the sewer

moratoria orders have been implemented for the

primary purpose of achieving other objectives which

are not permissible”); Rohan, 3 Zoning & Land Use

Controls § 22.039[3], at 22-49 (interim controls may be

deemed takings if the justification is inadequate or if

the municipality takes no steps to cure the problem it

faces). A Rhode Island district court invalidated a

building moratorium after finding that the Town had

not “acted reasonably and in good faith” to alleviate the

sewer problems that prompted the ban. @.C. Constr.

Co. v. Gallo, 649 F. Supp. 1331, 1338 (D. R.I. 1986).

The court acknowledged that a moratorium may be

constitutional in some circumstances, but noted that in

this case, the moratorium was not part of a plan to

remedy the Town’s sewer problems and was not time-

limited. Jd. at 1337-38. In another sewer case, New

York’s high court held that a town could not impose a

moratorium on multifamily units based on the town’s

own failure to address a longstanding pollution

problem. Westwood Forest Estates v. Village of South

15

Nyack, 244 N.E.2d 700, 702-03 (N.Y. 1969). The court

acknowledged that a reasonable, limited moratorium

on building permits might be appropriate, but found

that the town acted inappropriately in these

circumstances. Id.

These cases show that the existing legal

framework, including existing takings law and the

basic due process requirement of reasonableness,

provides sufficient restrictions on the use of temporary

moratoria. One scholar summarizing the law

governing moratoria states that municipalities are

obligated to “maintain [a] freeze for only so long as

necessary and to expeditiously plan and put into effect

a permanent scheme. Ifa municipality fails to do that,

an ordinance may be declared unconstitutional on

substantive due process grounds or as a taking.”

Rohan, 3 Zoning & Land Use Controls § 22.03[2], at

22-41. Most planning authorities adhere to this

standard; where they fail to do so, the aggrieved

property owners have resort to the courts for a remedy.

As long as this is the case, there is no need for a

categorical rule treating all temporary moratoria as per

se takings — a rule that would eliminate a critical

planning tool and jeopardize the planning process in

many communities.

Il. THIS COURT’S PRECEDENTS DO NOT

SUPPORT A CATEGORICAL TAKINGS

RULE FOR TEMPORARY MORATORIA

Just last term, this Court reaffirmed that

regulatory takings claims are generally analyzed under

16

the balancing test set forth in Penn Central Transp.

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

Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2457, 2464-

65 (2001) (where property owner failed to establish a

deprivation of all economic value, his claim should

properly be examined under Penn Central); id. at 2466

(O’Connor, J., concurring) (“our polestar .. . remains

the principles set forth in Penn Central itself”).

Petitioners, however, reject the established Penn

Central test and instead seek a brand-new categorical

rule that deems any short-term prohibition on

development a per se taking — regardless of the

regulation’s purpose, duration, or effect on property

values.?

In support of this argument, petitioners and their

amici attempt to draw on the two narrow

circumstances in which the Court has recognized a

categorical taking: where a regulation “compel|[s) the

property owner to suffer a physical ‘invasion’ of his

2 Because of the strategic choices they made below, petitioners can

no longer assert a takings claim under Penn Central. At trial,

they made a “calculated choice” to focus on the categorical takings

argument, and did not introduce specific evidence of economic

impact that would have been relevant to a Penn Central claim.

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

Planning Agency, 34 F. Supp. 2d 1226, 1241 (D. Nev. 1999). They

did not appeal the district court’s ruling that there was no taking

under Penn Central. See Tahoe-Sierra Preservation Council, 216

F.3d at 773 (“the plaintiffs have stated explicitly on this appeal

that they do not argue that the regulations constitute a taking

under the ad hoc balancing approach described in Penn Central”).

In light of this procedural background, petitioners properly did

not raise a Penn Central claim in their petition for certiorari or

17

property,” or where a regulation “denies all

economically beneficial or productive use of land.”

Lucas, 505 U.S. at 1015. They also suggest that the

Court’s decision in First English Evangelical Lutheran

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

requires a holding that any development moratorium

is a per se taking.

Petitioners’ reasoning is flawed, however. First,

they blur the analytical lines separating physical and

regulatory takings. Second, they misconstrue this

Court’s reasoning in Lucas, a decision that in no way

supports a categorical takings rule for temporary

moratoria. And finally, they ignore the limited reach

of the Court’s holding in First English.

A. Petitioners fail to understand the sharp

distinction between physical and regulatory

takings.

By pressing their case for a categorical rule,

petitioners seek to distract this Court from two critical

issues: first, that temporary moratoria serve

reasonable and important public purposes, and second,

that temporary moratoria often have a minimal impact

on property values. Both of these issues are

fundamental to any regulatory takings claim. See

~ Penn Central, 438 U.S. at 124-25. Rejecting Penn

Central, however, petitioners instead draw sub-

stantially on the reasoning of cases involving physical

invasions of private property. See, e.g., Loretto v.

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

426 (1982) (regulation requiring landlords to accept

installation of cable wires on buildings constituted a

18

“permanent physical occupation”); Kaiser Aetna v.

United States, 444 U.S. 164, 180 (1979) (“imposition of

the navigational servitude in this context will result in

an actual physical invasion of the privately owned

marina”). In so doing, they ignore the critical

distinctions between physical and regulatory takings.

The Court’s decision in Loretto, in particular,

makes clear that, for purposes of the Takings Clause,

a physical invasion or occupation is entirely distinct

from other types of land use regulations. “[W]e have

long considered a physical intrusion by government to

be a property restriction of an unusually serious

character for purposes of the Takings Clause.” Loretto,

458 U.S. at 426. The Court’s reasoning in Loretto is

wholly focused on the “unique” context of a physical

occupation of property, “where the character of the

invasion is qualitatively more intrusive than perhaps

any other category of property regulation.” Id. at 432,

441. The Court emphasized not the potential economic

injury to the property owner but the “special kind of

injury [suffered] when a stranger directly invades and

occupies the owner’s property.” Id. at 436. This

reasoning shows unequivocally that the labels applied

in a takings case do have constitutional significance.

Cf. Pet. Br. 15. Physical takings are different, and the

principles that govern them do not apply to ordinary

regulatory takings.

Petitioners cite Loretto and Kaiser in part for the

proposition that good intentions on the part of the

government do not affect the requirement of just

compensation. Pet. Br. 39-40. To a point, this state-

ment is unobjectionable. If a government action is

19

found to work a_ taking, compensation is

constitutionally required, regardless of the govern-

ment’s purpose. But the real issue in this case is not

whether compensation is required for a temporary

moratorium, but whether a temporary moratorium

works a taking. And on that key question, Penn

Central teaches that the “character of the

governmental action” is a relevant factor. Penn

Central, 438 U.S. at 124. A regulation that “adjust(s]

the benefits and burdens of economic life to promote

the common good” is not readily deemed a taking. /d.;

see also Connolly v. Pension Benefit Guaranty Corp..,

475 U.S. 211, 225 (1986). Thus, the public interest is

always relevant to a regulatory takings claim. See

Agins v. City of Tiburon, 447 U.S. 255, 261 (1980) (the

question whether property has been “taken” in the

constitutional sense “necessarily requires a weighing

of public and private interests”); see also Palazzolo, 121

S. Ct. at 2466 (“The purposes served, as well as the

effects produced, by a particular regulation inform the

takings analysis.”) (O’Connor, J., concurring); Keystone

Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470,

485 (1987) (“[T}he character of the governmental action

involved here leans heavily against finding a taking;

the Commonwealth of Pennsylvania has acted to arrest

what it perceives to be a significant threat to the

common welfare.”).

The Court in Loretto clarified and explained its

special treatment of physical takings. See 458 U.S. at

434-35 (“[Ojur cases uniformly have found a taking to

the extent of the [physical] occupation, without regard

to whether the action achieves an important public

benefit or has only minimal economic impact on the

20

owner.”) But the Court also carefully distinguished its

“very narrow” holding regarding physical invasions

from the “substantial authority upholding a State’s

broad power to impose appropriate restrictions upon an

owner's use of his property.” Jd. at 441. When

challenged as takings, such ordinary restrictions on

use are evaluated under Penn Central’s balancing test,

which weighs the “economic impact of the regulation”

and the “character of the governmental action.” Penn

Central, 438 U.S. at 124; Loretto, 458 U.S. at 426.

Loretto and other physical takings cases provide no

support for a rule that a temporary ban on

development is a per se taking.

B. The Court’s narrow decision in Lucas does

not apply to a regulatory takings claim

based on a temporary development

moratorium.

Setting aside physical intrusions, the only other

precedent for a categorical takings rule is this Court’s

decision in Lucas. But Lucas was premised on an

“extraordinary” and “rare” circumstance, where direct

government regulation had rendered private property

“valueless.” Lucas, at 1017-18, 1020. Although

petitioners rely in part on Lucas, the opinion does not

support their position. In fact, the Court’s reasoning in

Lucas undermines the argument that the Court should

create a categorical takings rule for temporary

development moratoria.

The Court in Lucas set out several reasons for its

rule that a regulation that deprives an owner of all

economically beneficial or productive use of land is a

21

per se taking. First, when the government imposes

such a drastic limitation on land use, “it is less realistic

to indulge our usual assumption that the legislature is

simply ‘adjusting the benefits and burdens of economic

life’ in a manner that secures an ‘average reciprocity of

advantage’ to everyone concerned.” Jd. at 1017-18

(citations omitted) (quoting Penn Central, 438 U.S. at

124, and Pennsylvania Coal, 260 U.S. at 415). Second,

the practical concern — that the government could not

function if it had to pay for every change in the law

that affected property values — does not apply to the

“relatively rare” circumstance where a property owner

is deprived of “all economically beneficial uses.” Jd. at

1018. And finally, “regulations that leave the owner of

land without economically beneficial or productive

options for its use . . . carry with them a heightened

risk that private property is being pressed into some

form of public service under the guise of mitigating

serious public harm.” Id.

Taken together, these three concerns led the

Court to conclude that a landowner suffers a taking

where he is “called upon to sacrifice all economically

beneficial uses in the name of the common good, that

is, to leave his property economically idle.” Id. at 1019.

None of these concerns, however, supports the

conclusion that a temporary development moratorium

is a per se taking.

First, temporary moratoria, like other ordinary

land use regulations, do provide reciprocal benefits to

property owners. Moratoria aid the planning process

— and good municipal planning, in turn, increases

property values and improves the quality of life.

22

Although a given property owner may suffer some

economic harm due to a short-term ban on

development, that property owner will eventually

benefit from well-designed traffic patterns, functioning

municipal services, and attractive, environmentally

sound development. Cf. Agins, 447 U.S. at 262 (“zoning

ordinances benefit the [property owners] as well as the

public by serving the city’s interest in assuring careful

and orderly development of residential property with

provision for open-space areas”); Penn Central, 438

U.S. at 134-35 (New York Citys landmark

preservation law benefits all New York citizens,

including owners of Grand Central Terminal, “both

economically and by improving the quality of life in the

city”). The property owner will also benefit from the

opportunity for public participation. “[T)Jhough

landowners may chafe at the severity of a temporary

limitation on use, they benefit by receiving a greater

opportunity to challenge the possible imposition of

permanent restrictive measures.” Rohan, 3 Zoning &

Land Use Controls § 22.01[1], at 22-5.

Second, a decision that every temporary

moratorium is a taking would have a significant

practical impact on land use planning. Land use is a

“constantly evolving and continuously changing

phenomenon.” Freilich, 49 J. Urban L. at 65.

Governments and citizens need time to respond to

urgent or unexpected problems. Short-term moratoria

provide needed breathing space and permit

government officials to do their jobs properly instead of

making snap decisions about complicated problems. In

this way, short-term moratoria are entirely different in

23

kind from the permanent ban on development at issue

in Lucas.

Third, short-term moratoria do not pose the risk

that the government is in fact attempting to use

private property to serve a public purpose, without

paying the required charge. A six-month or one or two

year ban on development does not transform private

property into a nature preserve or a protected

viewshed. Cf. Lucas, 505 U.S. at 1018-19 (suggesting

that regulations that require land to be left in its

natural state are the equivalent of scenic or

conservation easements). Indeed, the property at issue

may soon be used for a shopping mall or a residential

subdivision. In the context of a typical short-term

moratorium, the public gains no specific benefit or use

from the affected property, but only the common

benefit of sufficient time for study and planning

purposes.

The driving concern underlying the Court’s

takings jurisprudence is fairness. The purpose of the

Takings Clause “is to prevent the 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.” Palazzolo v. Rhode Island, 121

S. Ct. 2448, 2457-58 (2001). In Lucas, the Court

acknowledged that where the government deprives a

property owner of all economic value, fairness demands

compensation. But the Court has also recognized that

it is fair — in fact, it is a necessary part of life in an

organized society — to expect property owners to absorb

fluctuations in value caused by government actions.

See Agins, 447 U.S. at 263 n.9 (“Mere fluctuations in

24

value during the process of government decision-

making, absent extraordinary delay, are incidents of

ownership. They cannot be considered as a taking in

the constitutional sense.”) (internal quotation marks

omitted). Far from being categorically unfair,

temporary moratoria generally serve important public

goals that benefit all citizens, including affected

property owners, and they do so without drastically

affecting property values.

C. First English does not require a holding that

any temporary moratorium is a per se

taking.

Perhaps recognizing that a temporary

moratorium on use is akin to neither a physical

intrusion nor a total deprivation of value, petitioners

also attempt to rely on this Court’s decision in First

English. In so doing, however, they significantly

distort the holding of the case. The Court in First

English quite specifically addressed the “remedial

question” of appropriate compensation for a taking. 482

U.S. at 311. After several attempts, the Court finally

reached, and reversed, California’s longstanding rule

that money damages were not available as

compensation for a regulatory taking. See id. at 310-11

(noting that the Court had been unable to reach the

remedial question in several earlier cases). But the

Court carefully limited its holding to the issue of

remedy: “[w]e merely hold that where 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

25

period during which the taking was effective.” Jd. at

321 (emphasis added).

Thus, although petitioners emphasize that the

ordinance at issue in First English was a temporary

moratorium, that fact is entirely irrelevant to the

Court’s holding. The Court did not consider whether

the challenged ordinance had in fact worked a taking

of property; indeed, the Court expressly refused the

County’s suggestion that it decide the takings claim on

the merits. See id. at 313 (“We accordingly have no

occasion to decide whether the ordinance at issue

actually denied appellant all use of its property.”).

Although petitioners seek to examine First English “in

the context” of the underlying claim, Pet. Br. 32, the

Court itself made clear that the underlying allegations

did not bear on the Court’s holding.

First English establishes that a regulatory taking

may be “temporary,” in that the government may

rescind a regulation after it has worked a taking of

property. 482 U.S. at 310 (describing a temporary

regulatory taking as a regulatory taking that is

“ultimately invalidated by the courts”). But First

English does not decide the question presented in this

case: whether a moratorium designed to be temporary

necessarily works a taking. Petitioners obscure this

critical distinction by focusing on the facts, rather than

the holding, of First English.

26

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

WILLIAM H. SORRELL

Attorney General of Vermont

* BRIDGET C. ASAY

Assistant Attorney General

109 State Street

Montpelier, Vermont 05609

(802) 828-3181

Counsel for Amici States

* Counsel of Record

November 2001