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

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No. 00-1167

Supreme Court of the United States

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TAHOE SIERRA PRESERVATION COUNCIL, INC., et al.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, et al.,

Respondents.

e

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

S

BRIEF OF AMERICAN PLANNING ASSOCIATION

AND THE NATIONAL TRUST FOR HISTORIC

PRESERVATION AS AMICI CURIAE IN SUPPORT

OF RESPONDENTS

+

Rosert H. Fremicn*

E. Tyson SMITH

Jason M. Drve.siss

FremuicH, Lerrner & CARLISLE

4435 Main Street

Kansas City, MO 64111

(816) 561-4414

*Counsel of Record for Amici Curiae

saw - > PEs a,

BEST AVAILABLE COP

yo et

QUESTION PRESENTED

Whether the Court of Appeals properly determined

that a temporary moratorium on land development does

not constitute a taking of property requiring compensa-

tion under the Takings Clause of the United States Con-

stitution?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ..........cccccccccecvcces i

TABLE OF AUTHORITIES ........ccccccccccccseces iii

INTEREST OF AMICI CURIAE............0-0000005 1

STATEMENT OF THE CASE............::eeeeeeees 2

SUMMARY OF ARGUMENT. ...........000eeeeeeee 6

ARKGURGEINT ... ccccccsccvacesusscuscusekuenenenee 7

I. MORATORIA, REASONABLE IN DURA-

TION, MEANS, AND ENDS, ARE FUNDA-

MENTAL TO ACHIEVING PROPER

PLANNING AND LAND USE REGULATION

IN THE UNITED STATES ..............4.5.

Il. TEMPORARY MORATORIA CONSTITUTE

NORMAL DELAYS IN THE DEVELOPMENT

APPROVAL, PRAJURED oc ccccccccescsnvsesees

Ill. NEITHER THE SUPREME COURT’S REME-

DIAL DECISION IN FIRST ENGLISH, NOR ITS

DECISION IN LUCAS, INVOLVING PERMA-

NENT CATEGORICAL TAKINGS, UNDER-

MINES, MUCH LESS CONTRADICTS, THE

CONCLUSION THAT A TEMPORARY MOR-

ATORIUM ON LAND DEVELOPMENT DOES

NOT EFFECT A TAKING...............0008:

IV. TAKINGS ANALYSIS REQUIRES CONSIDER-

ATION OF THE PROPERTY IN ITS

ENTIRETY, INCLUDING TIME AS WELL AS

SPATIAL AND USE ELEMENTS, AND TRPA’S

ACTIONS DID NOT CONSTITUTE EITHER A

FACIAL LUCAS PER SE TAKE OR A FACIAL

PENN CENTRAL TAKE ..........cccessesees

CONCLAIIION onc ccccccccccccesesenteunenneeneenn

14

18

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct.

2138, 65 L. Ed. 2d 106 (1980), aff’g, 598 P.2d 25

PU SSc6bbeesscedecdscescescceeccceeces passim

Allingham v. City of Seattle, 109 Wash.2d 947, 749

P.2d 160 (Wash. 1988), amended by, 757 P.2d 533

TEP PTT OOTTTTTTTT TTT TTT Te 29

Almquist v. Town of Marshan, 245 N.W.2d 819, 308

i ss bin ccs eesenovceseooes 9, 14

Andrus v. Allard, 444 U.S. 51, 100 S. Ct. 318, 62

Se ET EEE ccecccccoeccececcccosese 4, 27, 30

Cappture Realty Corp. v. Bd. of Adjustment, 133 N.J.

Super. 216, 336 A.2d 30 (N.J. Super. App. Div.

apie hsekebuacecess coecsoscecececss 12, 17

Chicago Title and Trust Co. v. Village of Palatine, 22

Ill. App. 2d 264, 160 N.E.2d 697 (Ill. App. Ct.

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

687, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999)....2, 9

Collura v. Town of Arlington, 367 Mass. 881, 329

DEB FOR DERGS. 1978) .0 oc ccccccccccccccsccccees 14

Concrete Pipe and Products of California, Inc. v. Con-

struction Laborers Pension Trust for Southern Cali-

fornia, 508 U.S. 602, 113 S. Ct. 2264, 124 L. Ed. 2d

PERN ER 6 eteeebsveccdccdercccescvocccceces 23

Connolly v. Pension Benefit Guar. Corp., 475 U.S.

211, 106 S. Ct. 1018, 89 L. Ed. 2d 166 (1986)...... 24

iv

TABLE OF AUTHORITIES - Continued

Page

Construction Industry Ass’n v. City of Petaluma, 522

F.2d 897 (9th Cir. 1975)..........2220005- beccscnve 10

Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th

GE GEGED we vccvccevécsnaneccccccscecoscseccses 19, 21

Downham v. City Council of Alexandria, 58 F.2d 784

Ge WE BOD a ccccccccccccescccscccnngaetoecanss 13

Dufau v. United States, 22 Cl. Ct. 156 (1990)...... 17, 21

Estate of Scott v. Victoria County, 778 S.W.2d 585

Gee. BD, TPs cc ccesncncecacsccccescens cece 15, 17

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct.

BBG, 7B Ge Te FE Gee evncccccccccccccceccess 7, 30

First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987), on remand, 210 Cal.

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

cert. denied, 493 U.S. 1056 (1990).............44. passim

Friel v. Triangle Oil Co., 76 Md. App. 96, 543 A.2d

CED Gil GU TR cen canccedcenseccsecevevcecess 17

Geo-Tech Reclamation Indus. v. Hamrick, 886 F.2d

GIB GED Ga Gee cvcccvnetccotviescsescvcciesene: 8

Golden v. Ramapo Planning Bd., 285 N.E.2d 291, 334

N.Y.S.2d 138, 30 N.Y.2d 359 (N.Y. 1972), app.

Geemsae, GP Tae THe CROPE ccccscccoccccseseces 10

K&K Construction, Inc. v. Dept. of Nat. Resources,

456 Mich. 570, 575 N.W.2d 531 (1998)............. 22

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th

Cir.), cert. denied, 573 U.S. 870 (1994).............. 16

Vv

TABLE OF AUTHORITIES - Continued

Page

Kelly v. Tahoe Reg’! Planning Agency, 855 P.2d 1027

SE SE cnnbdiesscbusecgnéebuctenendesecenesens 25

Keshbro, Inc. v. City of Miami, 2001 WL 776555 (Fla.

Bcc vctvccbaviccccecccciccucdctesedéeseusces 25, 26

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480

U.S. 470, 107 S. Ct. 1232, 94 L. Ed. 2d 472

SPD od ccwccncavncncsnsencoecesesoseesend 4, 5, 25, 29

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) .... 23

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

1003, 112 S. Ct. 2886 (1992)........-..eeeeeees passim

MacDonald, Sommer & Frates v. County of Yolo, 477

US. 340, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986) ..2, 18

McCutchan Estates Corp. v. Evansville- Vanderburgh

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

PR RIERA ie RRR Re Se aD 17

Miller v. Bd. of Public Works, 234 P. 381, 195 Cal. 477

(Cal. 1925), cert. denied, 273 U.S. 781 (1926)........ 8, 14

Mitchell v. Kemp, 575 N.Y.S.2d 337, 176 A.D.2d 859

as sak di ekanenneseeke 9

Orleans Builders & Developers v. Byrne, 186 N.J.

Palazzolo v. Rhode Island, 121 S. Ct. 2448, 150

me 8 § FS rrr Tre 2, 7, 22, 24, 27

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

104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978)..... passim

vi

TABLE OF AUTHORITIES - Continued

Page

Presbytery of Seattle v. King County, 114 Wash.2d

SE, FEF WU TEP GOOD cc cccccccccccccccscccccies 30

Q.C. Const. Co., Inc. v. Gallo, 649 F. a 1331 (D.

R.I. 1986), aff'd, 836 F.2d 1340 (1st Cir. 1987)....... 9

Rubin, Matter of v. McAlvey, 29 App. Div. 2d 874,

SO PEED. BE FED (RIG oo cc ccsccccccesccscccccces 17

San Diego Gas & Electric v. City of San Diego, 450 US.

621, 101 S. Ct. 1287, 67 L. Ed. 2d 551 (1981)...... 2, 18

Santa Fe Village Venture v. City of Albuquerque, 914

F. Supp. 478 (D. N.M. 1995) ..........00eeeeee 16, 25

Schenck v. City of Hudson Village, 114 F.3d 590 (6th

in Ml sn oducakdtnddaieeeakindamachaedéneoandte 10

Smoke Rise, Inc. v. Washington Suburban Sanitary

Comm'n, 400 F. Supp. 1369 (D. Md. 1975)......... 17

State ex rel. Pizza v. Rezcallah, 84 Ohio St. 3d 116,

702 N.E.2d 81 (Ohio 1998)............ cee eee ences 26

State ex rel. SCA Chemical Waste Services, Inc. v.

Konigsberg, 636 S.W.2d 430 (Tenn. 1982)......... 9, 13

Suitum v. Tahoe Regional Planning Agency, 117 S. Ct.

BD Gon cwonccecedcvcsccdcessencedecsevesesieces 2

Sun Ridge Dev. v. City of Cheyenne, 787 P.2d 583

SO, DEED 0 ck déint ods cddunivines secedtusets eccade 15

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 34 F. Supp. 2d 1226

(D. Nev. 1999), rev'd in part, 216 F.3d 764 (9th

Cir. 2000), cert. granted, 69 USLW 3505, 2001 WL

ee Ge Be Sn ckcccekbestiseddencecenss passim

Trobough v. City of Martinsburg, 120 F.3d 262 (4th

ee FF ae ae ae 25

Vii

TABLE OF AUTHORITIES - Continued

Page

Udell v. Haas, 235 N.E.2d 897, 21 N.Y.2d 463, 288

N.Y.S.2d 888 (N.Y. 1968)...........ccceeeeeeeeeeees 8.

United States v. Causby, 328 U.S. 256 (1946).......... 28

United States v. Dow, 357 U.S. 17 (1958)...........-. 28

Walworth County v. Elkhorn, 27 Wis. 2d 30, 133

“Tey Stee 14

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

is Se van csicddéise Sun cbachsusi 8, 9, 10, 16, 22, 25

Williamson County Reg'l Planning Comm'n v. Ham-

ilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 87

es Bille. SD SP GUE ceccnastcncne cv cccesucconcces 18

Woodbury Place Partners v. City of Woodbury, 492

N.W.2d 258 (Minn. Ct. App. 1992)..... 15, 17, 23, 24

Yee v. City of Escondido, 503 U.S. 519, 112 S. Ct.

1522, 118 L. Ed. 2d 153 (1992)............2-0eeee 2,5

Zeman v. City of Minneapolis, 552 N.W.2d 548

SOND, Ge DE oS dn 6b ods dev ccccccsdcevecevcess 26

Zilber v. Town of Moraga, 692 F. Supp. 1195 (N.D.

GS I oS daigincckottidoupccoewnde cde cencoesse 16, 21

STATUTES

Pub. L. No. 96-551, 94 Stat. 3233 (1980).............. 3

OTHER AUTHORITIES

Bozung & Alessi, Recent Developments in Environ-

mental Preservation and the Rights of Property

Owners, “Moratoria as Regulatory Takings After

First English,” 20 Urs. Law. 969 (1988) ............ 19

Vili

TABLE OF AUTHORITIES - Continued

Page

Dowling, Timothy J., Reflections on Urban Sprawl,

Smart Growth and the Fifth Amendment, 148 U.

5 FF fC errr TTT Tyr 11

Freilich, Robert H., From Sprawt TO SMART GROWTH:

SuccessFuL LEGAL, PLANNING, AND ENVIRONMENTAL

Systems (American Bar Association 1999).......... 11

Freilich, Robert H., Interim Development Controls:

Essential Tools for Implementing Flexible Planning

and Zoning, 49 Urs. Law. 65 (1971)............0005 10

Freilich, R., Garvin, E. & Martin, D., Regulatory

Takings: Factoring Partial Deprivation Into the Tak-

ing Equation, Ch. 8 in Taxincs (ABA, David Cal-

BG SED o Fon cn ccncwccscvccagsesensasceesesss 22

Garvin, Elizabeth A. & Martin L. Leitner, Drafting

Interim Development Ordinances: Creating Time to

Plan, 46 Lanp Use Law & Zoninc Dic. (June

GIG: d cece ven cecuncnddseneccccssccccvessccenences 10

GOOSEN sec vccccuccccssccteseveriuscesecoccescocsces 29

Haar, Charles, In Accordance With A Comprehensive

Plan, 68 Harv. L. Rev. 1154 (1954). ................. 8

Heeter, David, Interim Zoning Controls: Some

Thoughts on Their Uses and Abuses, 2 Mont. &

Controt oF GrowtH 409 (S. Scott ed. 1975)........ 12

Mandelker, D., Lanp Use Law (4th ed. 1997) ........ 22

Mandelker, D., The Role of the Local Comprehensive

Plan in Land Use Regulation, 74 Micn. L. Rev. 799

ED oon dc cteinbd deed cab seaabbchdcechoieestoonns < 8

ix

TABLE OF AUTHORITIES - Continued

Page

Meltz, R., Merriam, D. & Frank, R., THe Taxincs

Issue: CONSTITUTIONAL Limits ON LAND Use Con-

TROL AND ENVIRONMENTAL REGULATION (Island

tt is) i spccietinenndbeetheenel baveeenbene 22

Michelman, Frank, Takings, 88 Cotum. L. Rev. 1600

GEE sco ececusncdcarcencocustovecevcccossscoesess 15

Roberts, Thomas E., Moratorium And Categorical

Regulatory Takings: What First English and Lucas

Say and Don’t Say, 31 Envr’t L. Rep. 11037 (Sept.

Ey wecccnccnancececpcocsvececesscesecsvevessces 18

Rohan, Patrick J., ZONING AND LAND Use ConrTROLS,

iis Se PEG 6sence cepacsnnceedaneces 9, 13, 16

Simes, Lewis, Future Interests, Introduction 2-3

PEE ee ve ee eer TT Tee TITS TTT TTT TTT 28

U.S. Department of Commerce, STANDARD STATE

ZONING AND PLANNING ENABLING Acts, 1926 and

Dt «ch iicbhenetakdenebeandedke cusdsehenesceseneeoss 8

1

INTEREST OF AMICI CURIAE!

Amicus American Planning Association (“APA”) rep-

resents the nation’s land use planning professionals —

those charged with addressing the public’s interest in

how land is used and with drafting regulations to ensure

that the impacts of adverse land use are minimized. As a

nonprofit, educational research organization with more

than 30,000 members nationwide, the APA is the oldest

and largest organization devoted to advancing state and

local land use planning.

The APA has forty-six chapters representing all fifty

states, including chapters in California and Nevada.

Members of the APA are routinely involved in compre-

hensive land use planning and its implementation

through land use regulation. An overriding concern of

the APA is that in order for comprehensive land use

planning to foster orderly and beneficial development,

communities must have the tools and legal authority to

deal effectively with a variety of types of land uses.

The APA has participated as amicus in a number of

cases before this Court; most recently in City of Los

Angeles v. Alameda Books, Inc. and Highland Books, Inc. (No.

00-799) in support of the City of Los Angeles; in Lorillard

Tobacco Co., et al., v. Thomas F. Reilly, Attorney General of

Massachusetts (No. 00-596, 00-597) in support of Massa-

chusetts; and in Anthony Palazzolo v. Rhode Island (No.

99-2047) in support of Rhode Island.

1 Pursuant to Rule 37.2(a), all parties have consented to the

filing of this brief. Letters evidencing such consent have been

filed with the Clerk of the Court.

Pursuant to Rule 37.6, amici curiae affirm that no counsel for

any party authored this brief in whole or in part and that no

person or entity made a monetary contribution specifically for

the preparation or submission of this brief.

2

Amicus National Trust. for Historic Preservation

(“National Trust”) was chartered by Congress in 1949 as a

private charitable, educational, and nonprofit organiza-

tion to “facilitate public participation in the preservation

of sites, buildings, and objects significant in American

history and culture.” 16 U.S.C. §§ 461, 468. The National

Trust’s mission is to foster an appreciation of the diverse

character and meaning of our American cultural heritage

and to preserve and revitalize the livability of our com-

munities by leading the nation in saving America’s his-

toric environments. The National Trust has more than

250,000 members nationwide.

The National Trust’s expertise on historic preserva-

tion law is nationally recognized. The National Trust has

participated as amicus curiae in many cases involving the

enforcement and interpretation of state and local historic

preservation laws, including cases raising constitutional

takings challenges to land use regulation and preserva-

tion ordinances. See, e.g., Palazzolo v. Rhode Island, 121

S. Ct. 2448 (2001); City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 119 S. Ct. 1624 (1999); Suitum v. Tahoe

Regional Planning Agency, 117 S. Ct. 1659 (1997); Lucas v.

South Carolina Coastal Council, 112 S. Ct. 2886 (1992); Yee v.

City of Escondido, 112 S. Ct. 1522 (1992); First English

Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304 (1987); MacDonald, Sommer & Frates v. County of

Yolo, 477 U.S. 340 (1986); San Diego Gas & Electric Co. v.

City of San Diego, 450 U.S. 621 (1981); Agins v. City of

Tiburon, 447 U.S. 255 (1980); and Penn Central Transp. Co.

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

STATEMENT OF THE CASE

Amici adopt the statement of the case as set forth by

Respondents. However, the following points are of partic-

ular significance to the matters set forth in this brief.

3

The Tahoe Regional Planning Agency (TRPA)

adopted Ordinance 81-5, prohibiting development in

environmentally sensitive areas from August 1981

through August 1983, in order to carry out studies, adopt

carrying capacities, and adopt the regional plan required

by the Amended Tahoe Regional Compact, Pub. L. No.

96-551, 94 Stat. 233 (1988) (authorizing a thirty-month

moratorium). When it became apparent that final adop-

tion of the new plan required additional time, TRPA

adopted Resolution 83-21, extending the two-year mor-

atorium for an additional eight months to April 1984, or a

total of thirty-two months - only two months longer than

the statutory authorization.

On appeal to the Ninth Circuit, the principal question

was “whether a temporary planning moratorium, enacted

by TRPA to halt development while a new regional land

use plan was being devised, effected [a facial] taking of

each plaintiff’s property under the standard set forth in

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112

S. Ct. 2886, 120 L. Ed. 2d 798 (1992).” Tahoe-Sierra Preser-

vation Council, Inc. v. Tahoe Reg’! Planning Agency, 216 F.3d

764, 766 (9th Cir. 2000). Recognizing its critical impor-

tance to their taking claim, the Preservation Council peti-

tioned the Ninth Circuit to accept the “conceptual

severance” argument when determining the relevant

property interest allegedly taken. The Council argued

that the property interest to be considered is not the

entire fee simple in the property, but rather the “temporal

‘slice’ of each fee that covers the time span during which

Ordinance 81-5 and Resolution 83-21 were in effect.” Id.

at 774.

Recognizing the inconsistency of Petitioners’ argu-

ment with this Court’s well-established precedent, the

Ninth Circuit explained:

Property interests may have many different

dimensions. For example, the dimensions of a

4

property interest may include a physical dimen-

sion (which describes the size and shape of the

property in question), a functional dimension

(which describes the extent to which an owner

may use or dispose of the property in question),

and a temporal dimension (which describes the

duration of the property interest).

Id. Citing Penn Central, 438 U.S. 104, 98 S. Ct. 2646, 57

L. Ed. 2d 631 (1978) (rejecting “airspace” as spatial sever-

ance); and Keystone Bituminous Coal Ass'n v. DeBenedictis,

480 U.S. 470, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987)

(rejection of “spatial” conceptual severance); Andrus v.

Allard, 444 U.S. 51, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979)

(rejection of “functional” severance); Agins v. City of

Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106

(1980) (rejection of “temporal” severance), the Ninth Cir-

cuit held: “It would make little sense to accept temporal

severance and reject spatial or functional severance.”

Tahoe-Sierra, 216 F.3d at 772-74.

To not reject the concept of temporal severance,

we would risk converting every temporary

planning moratorium into a categorical taking.

Such a result would run contrary to the Court's

explanation that it is ‘relatively rare’ that gov-

ernment ‘regulation denies all economically

beneficial or productive use of land.’ Lucas, 505

U.S. at 1015. . . . [T]he relevant property inter-

ests in the present case are the whole parcels of

property that the plaintiffs own.

Id. at 777. The court also held that “given the importance

and long-standing use of temporary moratoria, courts

should be exceedingly reluctant to adopt rulings that

would threaten the survival of this crucial planning

mechanism.” Id. The court concluded that the temporary

moratorium adopted by TRPA did not deny all use or

value of the property. “Given that the ordinance and

resolution banned development for only a limited period,

5

these regulations preserved the bulk of the future devel-

opmental use of the property. This future use had a

substantial present value.” Id. at 781. “This economic

reality is precisely what differentiates a permanent ban

on development, even if subsequently invalidated, from a

temporary one.” Id. at 781 n.26.

Finally, this case comes to the Court in a posture of a

facial taking. As the Court held in Keystone, 480 U.S. 470:

Because appellees’ taking claim arose in the con-

text of a facial challenge . . . the only issue

properly before . . . this Court, is whether the

‘mere enactment’ of the Surface Mining Act

effected a taking . . . petitioners thus face a

uphill battle . . . because petitioners have not

claimed, at this stage, that the Act makes it

commercially impracticable for them to [make a

profit).

Id. at 494-95.

See also, Yee v. City of Escondido, 503 U.S. 519, 533-34, 112

S. Ct. 1522, 118 L. Ed. 2d 153 (1992) (citing Keystone). In

sum, the Ninth Circuit found that even apart from the

Petitioners’ assertion of a “temporal severance” theory,

the “facial” taking argument of Petitioners must fail

because sufficient evidence was presented to show that

the property had use and value during the moratorium so

as to require an as-applied, ad hoc factual determination

under Penn Central, and Petitioners had waived all as-

applied takings claims.?

2 The Ninth Circuit did not consider whether the

development moratorium effected a compensable taking under

Penn Central, 438 U.S. 104 (1978). The court explained: “[T)he

only question before us is whether the rule set forth in Lucas

applies — that is, whether a categorical taking occurred because

Ordinance 81-5 and Resolution 83-21 denied the plaintiffs ‘all

economically beneficial or productive use of land.’ ” Tahoe-

6

SUMMARY OF ARGUMENT

1. Temporary moratoria are fundamental to the plan-

ning process and have been traditionally recognized

by the courts and authorized by state statutes as

background principles of state law. Petitioners con-

cede in their opening brief that “planning” or “time

out” moratoria are validly used by planning agencies

to provide “breathing space” and contend only that

the “dubbed” temporary moratorium in this case was,

in fact, a permanent substantive change in the regula-

tions. (Petitioners’ Brief at 4-5.) Petitioners’ facial tak-

ing claim must fail because it expressly recognizes

that temporary moratoria do not constitute a taking,

the very question certified by this Court; or in the

alternative, the grant of certiorari should be dismissed

as “improvidently granted.”

2. Temporary moratoria constitute a “normal delay” in

the planning process, and cannot constitute a facial

partial or temporary taking.

3. Both First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96

L. Ed. 2d 250 (1987) and Lucas support the Ninth

Circuit’s holding that temporary moratoria do not

effect a taking. First English limited temporary takings

to invalidated permanent restrictions lasting for a

temporary period of time - specifically, that once a

taking has been found, the period between the time of

Sierra, 216 F.3d at 773. The TRPA only appealed the District

Court’s finding of a categorical taking under Lucas and the

Tahoe-Sierra Preservation Council did not appeal the court’s

finding of no compensable taking under Penn Central. “And

even if arguments regarding the Penn Central test were fairly

encompassed by the defendants’ appeal, the Petitioners 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.” Id.

4. Apart from “normal delays,

7

the taking and the eventual invalidation and rescis-

sion of the offending regulation would be a tempor-

ary taking. First English, 482 U.S. at 321. Lucas is

clearly limited to those relatively rare circumstances

where all economically viable use and all value is

permanently removed due to the regulatory impact of

the challenged regulation. Lucas, 505 U.S. at 1015, see

also Palazzolo v. Rhode Island, 121 S. Ct. 2448, 150

L. Ed. 2d 592 (2001).

” takings analysis

requires consideration of the entirety of the property,

including temporal, as well as spatial and use ele-

ments, Penn Central, 438 U.S. at 130, Keystone, 480 U.S.

470 (1987). The Ninth Circuit properly found that,

contrary to the arguments asserted by Petitioners, the

takings analysis looks at all components of the fee,

Tahoe-Sierra, 216 F.3d at 774-79. Furthermore, review-

ing courts should not conceptually sever these inter-

ests “into small temporal pieces” any more than they

would sever spatial interests (e.g., setbacks) or allow-

able uses (e.g., traditional zoning restrictions). Id.

Rather, courts in a facial taking claim should look at

all elements to determine whether, in totality, “all

economically viable use” has been permanently

removed from the property. Id., see also Lucas, 505 U.S.

at 1012.

ARGUMENT

I. MORATORIA, REASONABLE IN DURATION,

MEANS, AND ENDS, ARE FUNDAMENTAL TO

ACHIEVING PROPER PLANNING AND LAND

USE REGULATION IN THE UNITED STATES

Interim development controls and moratoria are fun-

damental to a rational, defensible planning process. Prior

to Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114,

71 L. Ed. 303 (1926), courts had recognized the necessity

of temporary moratoria of building permit issuance

8

pending planning studies as a prerequisite to a valid

planning and regulatory process. Miller v. Bd. of Public

Works, 234 P. 381, 195 Cal. 477 (Cal. 1925), cert. den., 273

U.S. 781 (1926). Courts since that time have recognized

that a temporary halt on development activity during a

period of study is not only reasonable, but also ensures

that government acts in a manner that is thoughtful and

deliberate, not arbitrary and capricious. Williams v. City of

Central, 907 P.2d 701, 706 (Colo. Ct. App. 1995). Regula-

tory agencies across the country have used temporary

moratoria and interim development controls as a legiti-

mate means of creating breathing space while necessary

background data could be gathered, analyses conducted,

3 The significance of planning to zoning regulation was

fully recognized when the U.S. Department of Commerce issued

the Standard State Zoning and Planning Enabling Acts in 1926

and 1928, respectively, including the requirement that “Zoning

be in accordance with a comprehensive plan.” Professor Charles

Haar has stated that one of the important aspects of planning

was to assure that property owners be protected by meaningful

standards. “With the heavy presumption of constitutional

validity that attaches to legislation . . . and the difficulty in

judicially applying a ‘reasonableness standard,’ there is danger

that zoning [would] tyrannize individual property owners.”

Charles Haar, In Accordance With a Comprehensive Plan, 68 Harv.

L. Rev. 1154-58 (1955).

As the New York Court of Appeals stated in Udell v. Haas,

235 N.E.2d 897, 901, 21 N.Y.2d 463, 288 N.Y.S.2d 888 (1968): “ ...

the comprehensive plan is the essence of zoning. Without it

there can be no rational allocation of land use. It is the insurance

that the public welfare is served and that zoning does not

become nothing more than a Gallup poll.” See also Daniel

Mandelker, The Role of the Local Comprehensive Plan in Land Use

Regulation, 74 Micn. L. Rev. 799 (1976); and Geo-Tech Reclamation

Indus. v. Hamrick, 886 F.2d 662 (4th Cir. 1989) (land use

regulation requires comprehensive planning to avoid “mob

rule”). :

9

and policies assessed. Patrick J. Rohan, ZONING AND LAND

Use Controis, §22.01[1] (1998).

The reasonableness of a moratorium is measured by |

both the length of its duration and its relation to the

underlying studies supporting change in the regulations.

Thus, an enacting authority must diligently pursue com-

pletion of the planning process, including studies, analy-

ses, public participation, and the drafting of legislation.

Id. at §22.02[2]. The need for the moratorium is justified

by the need to pursue further study of the matter at hand.

Williams, 907 P.2d at 705. If, however, having established

a legitimate need, the government fails to pursue the

necessary studies or to work diligently toward resolution

of the matter, the substantive validity of the moratorium

can be called into question. Id. c.f. Almquist v. Town of

Marshan, 245 N.W.2d 819, 826, 308 Minn. 52 (Minn. 1976);

and State ex rel. SCA Chemical Waste Serv., Inc. v.

Konigsberg, 636 S.W.2d 430, 434 (Tenn. 1982).

Moratoria have been set aside when the restraint has

been determined to be accompanied by studies unreason-

able in scope, adopted in bad faith, or otherwise arbitrary

or capricious. Mitchell v. Kemp, 575 N.Y.S.2d 337, 176 A.D.

2d 859 (N.Y. App. 1991) (moratoria unconstitutional on

due process grounds, where town gave no satisfactory

reason for five-year delay in enacting permanent zoning

ordinance); Q.C. Const. Co. Inc. v. Gallo, 649 F. Supp. 1331

(D.R.I. 1986), aff'd, 836 F.2d 1340 (1st Cir. 1987) (due

process violation where city imposed moratorium on

sewer hookups but made no effort to study or remedy

problem giving rise to moratorium). Where the govern-

ment enacts a moratorium with the intent of blocking a

specific development, with no legitimate, good faith

interest in addressing a larger planning or environmental

concern, unlawful discrimination may be found. City of

Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687, 119 S. Ct.

10

1624, 143 L. Ed. 2d 882 (1999); see also Williams, 907 P.2d at

705.

In this case, the studies undertaken by TRPA during

the thirty-two-month moratorium were specifically tied

to the development of standards to slow the eutrophica-

tion of Lake Tahoe and to meet the charge given TRPA

under the Tahoe Regional Planning Compact to address

this problem within a thirty-month period. Tahoe-Sierra

Preservation Council, 216 F.3d at 781-82 (accepting the

district court’s finding of fact that “TRPA worked dili-

gently to complete the regional plan as quickly as possi-

ble”). Thus, even under an as-applied analysis, the taking

claim should fail.

Three important principles underlie the need for tem-

porary moratoria. Robert H. Freilich, Interim Development

Controls: Essential Tools for Implementing Flexible Planning

and Zoning, 49 J. Ursan L. 65, 77-80 (1971) (cited by the

Ninth Circuit below, Tahoe-Sierra, 216 F.3d at 777). First,

reasonable moratoria allow the regulating body the nec-

essary time to study and formulate solutions to signifi-

cant land use and environmental problems affecting

society. Elizabeth A. Garvin & Martin L. Leitner, Drafting

Interim Development Ordinances: Creating Time to Plan,

Lanp Use Law anp Zoninc Dic., June 1996, at 3.

The range of planning and public policy objectives

that may necessitate a moratorium on development

include the timing and phasing of development to the

provision of adequate public facilities and infrastructure.

See Golden v. Ramapo Planning Bd., 285 N.E.2d 291, 334

N.Y.S.2d 138, 30 N.Y.2d 359 (N.Y. 1972), app. dismissed, 409

U.S. 1003 (1972) (upholding timed and phased multi-year

development controls to assure that adequate public ser-

vices will be provided in accordance with a long-term

capital improvement plan); Schenck v. City of Hudson Vil-

lage, 114 F.3d 590 (6th Cir. 1997); Construction Industry

cng I

11

Ass‘n v. City of Petaluma, 522 F.2d 897, 909 (9th Cir. 1975)

(both upholding City numerical allocation of develop-

ment permits over multi-year phasing programs based on

comprehensive and intensive growth studies and capital

improvement analysis); see also Robert H. Freilich, From

SPRAWL TO SMART GROWTH: SuccEssFUL LEGAL, PLANNING, AND

ENVIRONMENTAL Systems (1999); see generally, Timothy J.

Dowling, Reflections on Urban Sprawl, Smart Growth and

the Fifth Amendment, 148 U. Pa. L. Rev. 873 (2000).

Petitioners themselves concede the validity of “a

planning or time out moratorium of the kind sometimes

used by planning agencies to provide needed breathing

space.” Petitioners’ Brief at 4-5. By this extraordinary

admission, Petitioners concede that if this case involved a

temporary moratorium, the moratorium would have been

valid. Furthermore, Petitioners assert that: “although

dubbed temporary it was actually a substantive regula-

tion rather than a procedural planning device and it

made a dramatic change in TRPA’s land use plan.” See id.

at 5.

This Court, however, did not accept this case on a

challenge to a permanent regulation. The question pre-

sented asks, “whether the Court of Appeals properly

determined that a temporary moratorium on land devel-

opment does not constitute a taking of property... . ”

Tahoe-Sierra, 2001 WL 69237 (U.S.). The case should be

dismissed on the basis that certiorari was improvidently

granted, or alternatively, the order of the Court of

Appeals should be affirmed, since Petitioners concede

that a temporary moratorium would be valid and hence

not a taking.

Temporary moratoria also constitute a valid response

to imminent public health and safety threats. Indeed, it

was such a concern for the immediate safety of the public

that prompted Los Angeles County to enact an interim

12

ordinance prohibiting development within a flood protec-

tion area to protect from loss of life, a temporary mor-

atorium that was eventually upheld on remand from this

Court even though all use was prohibited during the

thirty-month period. First English, 482 U.S. 304 (1987), on

remand, 210 Cal. App. 3d 1353, 258 Cal.Rptr. 893 (Cal.

App. 1989), cert. denied, 493 U.S. 1056 (1990); see also

Cappture Realty Corp. v. Bd. of Adjustment, 133 N.J. Super.

216, 336 A.2d 30 (N.J. Super. App. Div. 1975) (upholding a

temporary moratorium on construction within designated

flood prone areas while flood control studies were com-

pleted); Orleans Builders & Developers v. Byrne, 186 N.J.

Super. 432, 453 A.2d 200 (N.J. Super. App. Div. 1982)

(upheld eighteen-month moratorium to facilitate environ-

mental protection for the vast area of the New Jersey Pine

Barrens). In the case sub judice, the TRPA’s thirty-two-

month moratorium was for a duration directly tied to the

task before it, specifically, to adopt environmental carry-

ing capacities and to develop a new regional plan, Tahoe-

Sierra, 216 F.3d at 767-68.

In each of these circumstances, government was con-

fronted with a planning, environmental, or public safety

threat of considerable magnitude and immediacy. In each

case, the government found that a temporary halt on

development was necessary to accomplish legitimate

planning purposes precedent to the eventual regulation.

David Heeter, Interim Zoning Controls: Some Thoughts on

Their Uses and Abuses, 2 Moot. & Controt or Grown 409,

411 (S. Scott Ed. 1975).

The second principle underlying the need for tempo-

rary planning moratoria is the prevention of nonconform-

ing uses or development inconsistent with the purposes

and policies of the planning legislation being formulated.

When developers expect that a regulating body is study-

ing a particular planning or environmental issue, and, in

13

fact, may adopt regulations to address that issue, there

inevitably will be a rush to secure building permits under

current regulations. Rohan at §22.01[1]. See also SCA

Chemical, 636 S.W.2d at 436-37 (“SCA Chemical . . . was

engaged in a race to avoid the more stringent zoning and

permit requirements . . . contained in the new ordi-

nance”). One of the first courts to address temporary

moratoria summed up the problem as follows:

[A]Jny movement by the governing body of a

city to zone would, no doubt, frequently precip-

itate a race of diligence between property |

owners, and the adoption later of the zoning

ordinance would in many instances be without

effect to protect residential communities - like

locking the stable after the horse is stolen.

Downham v. City Council of Alexandria, 58 F.2d 784, 788

(E.D. Va. 1932).4

Courts have recognized the illogical result that

would accrue were regulatory bodies simultaneously

authorized ‘o control and limit the private use of land,

but prohibited from imposing temporary prohibitions on

use during the development of those controls and limita-

tions. As stated in Chicago Title and Trust Co. v. Village of

Palatine, 22 Ill. App. 2d 264, 160 N.E.2d 697, 700 (Ill. App.

1959):

It would be utterly illogical to hold that, after a

zoning commission had prepared a comprehen-

sive zoning ordinance or an amendment thereto,

which was on file and open to public inspection

and upon which public hearings had been held,

and while the ordinance was under consider-

ation, any person could by merely filing an

4 In fact, as the Ninth Circuit opinion points out, a race of

diligence occurred prior to the adoption of the Tahoe Regional

Planning Compact of 1980. Tahoe-Sierra, 216 F.3d at 777, n.15.

14

application compel the municipality to issue a

permit which would allow him to establish a use

which he either knew or could have known

would be forbidden by the proposed ordinance,

and by so doing nullify the entire work of the

municipality in endeavoring to carry out the

purpose for which the zoning law was enacted.

See Walworth County v. Elkhorn, 27 Wis. 2d 30, 133 N.W.2d

257 (Wis. 1965); Miller, 234 P. at 388 (Cal. 1925).

The third principle underlying temporary planning

moratoria is the facilitation of public debate and input

into the legislative process. Unless the development

industry, landowners impacted by development activity,

and public interest groups have participated in the plan-

ning process, regulations likely will fail to protect the full

range of community values and to accomplish the

intended goals of the governing body. As stated by the

Supreme Court of Minnesota, one of the “persuasive rea-

sons for permitting moratorium ordinances [is] to derive

the benefits of permitting a democratic discussion and

participation by citizens and developers in drafting long-

range use plans.” Almquist, 245 N.W.2d at 826 (emphasis

added). See also Collura v. Town of Arlington, 367 Mass.

881, 329 N.E.2d 733 (Mass. 1975) (noting that “with the

adoption of an interim [moratorium a developer] is made

aware that a new plan is in the offing and is thus able to

participate in the debate over what that new plan should

contain”).

Il. TEMPORARY MORATORIA CONSTITUTE NOR-

MAL DELAYS IN THE DEVELOPMENT

APPROVAL PROCESS

In First English, this Court expressly recognized the

validity of “normal delays” in the development approval

process. First English, 482 U.S. at 321. Professor Frank

Michelman of Harvard Law School, in his review of First

15

English, states: “the First English decision [does] not reach

regulatory enactments, even totally restrictive ones, that

are expressly designed by their enactors to be tempor-

ary ....” Frank Michelman, Takings, 88 Covum. L. Rev.

1600, 1621 (1988). The subsequent history of First English

confirms Michelman’s reasoning.’ Upon remand of First

English, the California Court of Appeals found that the

thirty-month moratorium to prevent flooding was not a

temporary taking, 258 Cal. Rptr. 893 (1989), and this

Court denied certiorari, 493 U.S. 1056 (1990). Numerous

courts have relied on First English to hold that temporary

development moratoria do not amount to a taking of

property. Sun Ridge Dev. v. City of Cheyenne, 787 P.2d 583

(Wyo. 1990); Estate of Scott v. Victoria County, 778 S.W.2d

585 (Tex. App. 1989); Woodbury Place Partners v. City of

Woodbury, 492 N.W.2d 258 (Minn. Ct. App. 1993).

The First English “normal delays” holding stems

directly from Agins, 447 U.S. 255, where it was argued

that aborted condemnation proceedings that lasted for a

year effected a taking by interfering with the owner’s

ability to sell or develop the land during the period. The

pendency of the condemnation proceedings in Agins had

a greater restrictive effect than a temporary moratorium:

it prevented the owners from selling as weil as develop-

ing the property until the city determined the appropriate

use for the property. The conclusion that there was no

taking in Agins directly supports the finding that there is

no taking when the government imposes a temporary

moratorium on development. Agins specifically rejected

the notion that the public should be held liable for losses

caused by delays “during the process of governmental

decision making.” Id. at 263 n.9. A development mor-

atorium in support of a comprehensive land use planning

effort is precisely the type of delay associated with the

“process of governmental decision making” referred to in

16

Agins and was the progenitor of the phrase used in First

English: “normal delays in the development approval pro-

cess” are not takings. First English, 482 U.S. at 321.

Consistent with this self-evident reading of Agins, a

number of lower courts have rejected takings challenges

to development moratoria. In Zilber v. Town of Moraga, the

Court rejected the claim that a moratorium pending com-

pletion of an open space preservation study resulted in a

taking, stating that the claim was “akin to one rejected in

Agins.” 692 F. Supp. 1195, 1206 (N.D. Cal. 1988). See also

Williams, 907 P.2d at 704 (relying on Agins to reject claim

that a development moratorium worked a taking, and

observing that “even if the ability to sell or develop-

. . . property is restricted during [a] moratorium, the

landowner is free to continue with sale or development

once the regulation is lifted”). C.f. Kawaoka v. City of

Arroyo Grande, 17 F.3d 1227, 1237 (9th Cir.), cert. denied,

573 U.S. 870 (1994) (relying on Agins to reject a substan-

tive due process challenge to a development mor-

atorium).

It is incumbent upon the governing body of any

agency imposing a moratorium to limit its duration to an

amount of time that is reasonable and necessary. Rohan at

§22.02[2]. As long as the delay is not “extraordinary” in

light of the severity and complexity of the problem, the

duration of the otherwise valid moratorium will consti-

tute a “normal delay in the development approval

process.” First English, 482 U.S. at 321. The overwhelming

weight of decisions by other federal and state courts

supports the conclusion that temporary moratoria in

effect for reasonable periods of time similar to the dura-

tion of the TRPA restriction do not result in a taking. See

Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp.

478 (D. N.M. 1995) (thirty-month moratorium associated

with effort to create national monument not a taking);

17

Smoke Rise, Inc. v. Washington Suburban Sanitary Comm'n,

400 F. Supp. 1369 (D. Md. 1975) (five-year moratorium on

sewer hookups does not render land “worthless or use-

less so as to constitute a taking”); Woodbury Place Partners,

492 N.W.2d 258 (Minn. Ct. App. 1992) (two-year mor-

atorium on development pending completion on inter-

state intersectional location study not a taking); Cappture,

336 A.2d 30 (N.J. Super. App. Div. 1975) (four-year mor-

atorium imposed on construction in flood-prone lands

not a taking); Friel v. Triangle Oil Co., 76 Md. App. 96, 543

A.2d 863 (Md. App. 1988) (twenty-four-month interim

ordinance not a take); Estate of Scott, 778 S.W.2d 585 (Tex.

App. 1989) (two-year interim ordinance not a taking);

Matter of Rubin v. McAlvey, 29 App. Div. 2d 874, 288

N.Y.S.2d 519 (1968) (two-year interim development ordi-

nance valid); First English, 258 Cal. Rptr. 893 (delay of

thirty months not unreasonable).5

5 See Orleans Builders, 453 A.2d at 208 (observing that

“under decisional law in this state as well as in other

jurisdictions” moratoria “leading to formulation of a

comprehensive system for the area’s development which would

safeguard its environment” are not compensable), McCutchan

Estates Corp. v. Evansville Vanderburgh County Airport Auth. Dist.,

580 N.E.2d 339 (Ind. Ct. App. 1991) (nine-month delay not

extraordinary as a matter of law), Dufau v. United States, 22 Cl.

Ct. 156 (Fed. Cl. 1990) (sixteen-month delay not extraordinary

as a matter of law).

18

Ill. NEITHER THE SUPREME COURT’S REMEDIAL

DECISION IN FIRST ENGLISH, NOR ITS DECI-

SION IN LUCAS, INVOLVING PERMANENT

CATEGORICAL TAKINGS, UNDERMINES,

MUCH LESS CONTRADICTS, THE CONCLU-

SION THAT A TEMPORARY MORATORIUM ON

LAND DEVELOPMENT DOES NOT EFFECT A

TAKING

The U.S. Supreme Court's decisions in First English,

482 U.S. 304 (1987) and Lucas, 505 U.S. 1003 (1992), did

not create a new approach that would support the conclu-

sion that a temporary moratorium on development effects

a taking. To the contrary, a careful reading of these deci-

sions demonstrates that they confirm the constitutionality

of TRPA’s moratorium.

A. First English

In First English, this Court granted review solely to

address the issue of the appropriate remedy in a regula-

tory takings case.© Accepting for the sake of argument

6 The fact that First English involved a temporary

moratorium was irrelevant to the holding in the case. The

Petitioners’ Petition for Certiorari is quite misleading in this

regard. First English’s only relevance to this case is the dicta

regarding ‘normal delays’. The decision in First English as to the

remedy could easily have been made in any of the cases where

the court declined to accept jurisdiction by reason of ripeness.

(San Diego Gas & Electric v. City of San Diego, 450 U.S. 621, 101

S. Ct. 1287, 67 L. Ed. 2d 551 (1981); Agins, 447 U.S. 255 (1980);

Williamson County Reg’l Planning Comm'n v. Hamilton Bank, 473

U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), and MacDonald,

Sommer & Frates v. County of Yolo, 477 U.S. 340, 106 S. Ct. 2561, 91

L. Ed. 2d 285 (1986)). See Thomas E. Roberts, Moratorium And

Categorical Regulatory Takings: What First English and Lucas Say

and Don’t Say, 31 Envr’t L. Rep. 11037 (Sept. 2001).

19

plaintiff's allegations that the restrictions effected a tak-

ing, 482 U.S. at 313, the Court addressed the question

“whether abandonment [of regulations] by the govern-

ment [after a judicial order finding a taking] requires

payment of compensation for the period of time during

which [the] regulations” were in effect. Jd. at 318. The

Court answered this question in the affirmative, holding

that, assuming a government regulation works a taking in

the first place, subsequent rescission of the regulation

does not foreclose a claim for compensation. “We 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 period during which the

taking was effective.” Id. at 321.”

Temporary takings apply to the period of time

between application of a permanent restriction and sub-

sequent invalidation,’ not the period during which a

temporary measure is applied and is not a taking in the

first place. The obvious reach of First English is to com-

pensate for permanent takings that last a temporary

period of time, i.e., regulations subsequently rescinded or

declared invalid, but not to compensate commonplace

temporal regulations such as the TRPA’s thirty-two-

month temporary moratorium, which have not been held

to be a taking in the first place. Bozung & Alessi, Recent

Developments in Environmental Preservation and the Rights

7 See Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1073 n.4

(11th Cir. 1996), holding that First English is not applicable to

moratoria or other temporary actions; rather, First English is

applicable only where the ordinance is indefinite in duration

and would expire only if declared unconstitutional or repealed.

§ The opinion presupposes that “temporary regulatory

takings” means “regulatory takings which are ultimately

invalidated by the courts.” First English, 482 U.S. at 310.

20

of Property Owners, “Moratoria as Regulatory Takings After

First English,” 20 Urs. Law. 969, 1014-1030 (1988).

Thus, the First English ruling focuses exclusively on

the appropriate remedy in a regulatory taking case. The

Court in First English did not establish that a restriction

temporarily depriving a landowner of the use of property

constitutes a taking. Moreover, as the majority made

clear, the Court was not addressing “the quite different

questions that would arise in the case of normal delays in

obtaining building permits, changes in zoning ordi-

nances, variances, and the like.” Id. at 321. This reading of

First English is confirmed by the California Court of

Appeals’ resolution of the takings issue on remand.

Addressing for the first time the actual merits of the

takings claim, the Court of Appeals ruled that the

County’s interim ordinance did not effect a taking. First

English, 258 Cal. Rptr. at 906. Emphasizing the fact that

the ordinance was temporary by design, the court con-

cluded:

As an independent and sufficient grounds for

our decision, we further hold [that] the interim

ordinance did not constitute a “temporary

unconstitutional taking even if we were to

assume its restrictions were too broad if perma-

nently imposed on First English. This interim

ordinance was by design a temporary measure —

in effect a total moratorium on any construction

on First English’s property while the County

conducted a study to determine what uses and

what structures, if any, could be permitted on

this property consistent with considerations of

safety.” “We do not read the U.S. Supreme

Court’s decision in First English as converting

moratoriums and other interim land use restric-

tions into unconstitutional ‘temporary takings’

requiring compensation unless, perhaps, if these

21

interim measures are unreasonable in purpose,

duration or scope.”

Id.

This Court denied the petition for certiorari filed by

the owner in response to this decision. First English, 493

U.S. 1056 (1990). Although the Court’s denial of certiorari

is not precedential, it clearly affected the ultimate result

in First English.

Other courts have read First English similarly, and

refused to hold that temporary moratoria effect a tempor-

ary taking. Corn, 95 F.3d 1066, 1073 (First English not

applicable to temporary moratoria); Dufau, 22 Cl. Ct. 156

(1990) (following First English, and concluding that six-

teen-month delay during Clean Water Act section 404

processing is not a taking); Zilber, 692 F. Supp. at 1206

(relying on First English to support conclusion that eigh-

teen-month development moratorium is a “normal delay”

that does not result in a taking).

For Petitioners to read First English as establishing a

new species of “temporary takings” that would support a

finding of a taking based on a “temporary” moratorium

reflects a fundamental misreading of that decision.

B. Lucas

In Lucas, this Court found a per se taking where a

South Carolina coastal protection law permanently barred

a landowner from developing the property and reduced

the market value of the property to zero. Lucas, 505 U.S.

1003. Nothing in the reasoning in Lucas suggests that the

Court’s ruling applies to temporary restrictions on devel-

opment. Indeed, the Court was quite clear in noting that

its ruling was likely to apply only in “rare” cases, a

statement which contradicts the idea that Lucas could

22

apply to the frequently used moratorium tool. See Wil-

liams, 907 P.2d at 706 (“Importantly, the Lucas court speci-

fically noted that categorical temporary takings were

expected to be a rare event, occurring only under extraor-

dinary circumstances. ‘Stop gap’ or interim zoning mor-

atoria, however, play an important role in land use

planning and are commonly employed.”). See also Pal-

azzolo, 121 S. Ct. 2448 (confirming that Lucas is only

applicable in “relatively rare” circumstances).

The Lucas per se rule was held to be applicable only

where property is permanently rendered without use and

thus valueless in perpetuity.? Lucas, 505 U.S. at 1012

(“taking was unconditional and permanent”); and 505

U.S. at 1018 (“the relatively rare situation where the

government has deprived the owner of all economically

beneficial use”). See R. Meltz, D. Merriam and R. Frank,

THe Taxincs Issue: CONsTITUTIONAL Limits ON LaND Use Con-

TROL AND ENVIRONMENTAL REGULATION, pp. 139-141 (Island

Press 1999); D. Mandelker, Lanp Use Law 2.18 (4th ed.

1997); R. Freilich, E. Garvin & D. Martin, Regulatory Tak-

ings: Factoring Partial Deprivation into the Taking Equation,

Ch. 8 in Taxincs (ABA, David Callies, ed. 1996). Justice

Scalia, in Lucas, emphasized that the certiorari petition

squarely raised the question of whether regulatory prohi-

bitions had rendered Lucas’ beachfront land permanently

valueless. Lucas, 505 U.S. at 1007; and 505 U.S. at 1020 n.9.

See K&K Const., Inc. v. Dept. of Nat. Resources, 456 Mich.

570, 575 N.W.2d 531 (1998) (Lucas applies only where the

® Treating use and value as synonymous for takings

analysis is common sense, for if property retains value as

determined by the market, by definition it retains economically

viable use through sale for market value. See Lucas, 505 U.S. at

1017 (“What is land but the profits thereof?” (citation omitted)).

23

property owner is permanently deprived of all use and

value looking at the property as a whole).!°

The draconian prohibitions of the South Carolina Act

were described as the “complete extinguishment of his

property’s value” and a “permanent ban on construction

insofar as Lucas’ lots were concerned,” Lucas, 505 U.S. at

1009 (emphasis added), and government has deprived a

landowner of all economically beneficial uses. Lucas, 505

U.S. at 1017-1018 (emphasis added), and that “all” means

“all.” Lucas, 505 U.S. at 1016 n.7; 505 U.S. at 1019 n.8.

Justice Scalia refused to entertain the argument (raised by

the dissent) that “valueless” meant something less than a

complete and total destruction of all use and value or for

a period of time less than permanent. Lucas, 505 U.S. at

1020 n.9; 505 U.S. at 1016 n.7; 505 U.S. at 1019 n.8. A

similar rule applies in physical appropriation takings

cases, Loretto v. Manhattan Teleprompter CATV Corp.: “Our

holding today is very narrow. We affirm the traditional

rule that a permanent physical occupation of property is

a taking. . . . We do not, however, question the equally

substantial authority upholding a state’s broad power to

impose appropriate restrictions upon an owner's use of

am property.” 458 U.S. 419, 441 (1982) (emphasis in origi-

nal).

“All value” as used in Lucas means that the regula-

tion has permanently destroyed all value, both in a physi-

cal and temporal sense. Lucas, 505 U.S. at 1016 n.7, 1019

n.8. See Woodbury Place Partners, 492 N.W.2d at 260-61

(two-year building moratorium not a Lucas per se take

10 In Concrete Pipe, this Court, looking at the property as a

whole, determined that where only a 59% deprivation occurred,

the plaintiff's attempt to “shoehorn” the challenge into the

Lucas per se claim would be rejected. Concrete Pipe and Products of

California, Inc. v. Construction Laborers Pension Trust for Southern

California, 508 U.S. 602, 643-644 (1993).

24

despite stipulated lack of all economically viable use for

two years). The Woodbury trial court had applied the

Lucas per se test. The Court of Appeals reversed, relying

on both Lucas and Agins:

We interpret the phrase “all economically viable use

for two years” as significantly different from “all

economically viable use” as applied in Lucas. The

two-year deprivation of economic use is qualified by

its defined duration. That the Woodbury prop-

erty’s economic viability was delayed, rather

than destroyed, is implicitly recognized in the

language of the stipulation. “[A]ll economically

viable use from March 23, 1988 to March 23,

1990” recognizes that economic viability exists

at the moratorium’s expiration.

. oa *

Delaying the sale or development of property dur-

ing the governmental decision-making

process may cause fluctuations in value that,

absent extraordinary delay, are incidents of owner-

ship rather than compensable takings. Agins v.

Tiburon, 447 U.S. 255, 263 n.9, 100 S. Ct. 2138, 2143

n.9, 65 L.Ed.2d 106 (1980). (emphasis supplied).

Woodbury Place Partners, 492 N.W. 2d at 261-62.

If the regulation is temporary or if any use or any

value remains, the Lucas per se rule does not apply. See

Palazzolo, 121 S. Ct. 2448 (rejecting a Lucas claim where

small residual value has been left in the property,

remanding the case for a Penn Central review). In Penn

Central, this Court identified three factors to guide ad hoc

factual inquiries: (1) the economic impact of the regula-

tion; (2) the extent to which the regulation interferes with

investment-backed expectations; and (3) the character of

the government regulation. Penn Central, 438 U.S. at 124;

Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225,

106 S. Ct. 1018, 89 L. Ed. 2d 166 (1986). In the present

25

case, Petitioners do not argue, and on a facial attack

cannot argue, that the moratorium constituted a Penn

Central take. Nor could they have succeeded in doing so

because the economic impact was minimal due to the

temporary nature of the moratorium; Petitioners could

have had no investment-backed expectation that it could

develop land in an environmentally sensitive area free

from reasonable, temporary delays; and the exercise of

the TRPA police power to prevent environmental harm to

Lake Tahoe caused by immediate development in sensi-

tive areas is the highest form of governmental action to

protect health and safety. Keystone, 480 U.S. at 489-491;

Lucas, 505 U.S. at 1023-1024; Trobough v. City of Mar-

tinsburg, 120 F.3d 262 (4th Cir. 1997).

So far as amici are aware, no court yet to address the

issue has ruled that a temporary moratorium can result in

a Lucas-type taking. Indeed, all the decisions are to the

contrary. See Kelly v. Tahoe Reg’! Planning Agency, 855 P.2d

1027, 1033-34 (Nev. 1993), cert. denied, 510 U.S. 1041 (1994)

(rejecting takings challenge to temporary restrictions

which, unlike the restrictions in Lucas, “temporarily limit,

rather than forever preclude development in environmen-

tally sensitive areas”); Williams, 907 P.2d at 706 (mor-

atorium on new development in gambling district did not

effect a taking under Lucas); Santa Fe Village Venture, 914

F. Supp. at 483 (citing Lucas and First English, and reject-

ing claim that thirty-month moratorium resulted in tak-

ing). Just four months ago, the Florida Supreme Court in

Keshbro v. City of Miami, 2001 WL 776555 (Fla. 2001) held

that temporary moratorium in the land use and planning

arena does not constitute a Lucas take, citing the Ninth

Circuit Court of Appeals opinion."

11 Keshbro did find that a nuisance abatement board order

closing a multi-rental facility for illegal drug operation

26

IV. TAKINGS ANALYSIS REQUIRES CONSIDER-

ATION OF THE PROPERTY IN ITS ENTIRETY,

INCLUDING TIME AS WELL AS SPATIAL AND

USE ELEMENTS, AND TRPA’S ACTIONS DID NOT

CONSTITUTE EITHER A FACIAL LUCAS PER SE

TAKE OR A FACIAL PENN CENTRAL TAKE

In Penn Central the Supreme Court explained that:

‘Taking’ jurisprudence does not divide a single

parcel into discrete segments and then attempt

to determine whether rights in a particular seg-

ment have been entirely abrogated. In deciding

whether a particular governmental action has

effected a taking, this Court focuses both the

constituted a Lucas taking for the one-year period of the closure,

citing State ex rel. Pizza v. Rezcallah, 702 N.E.2d 81, 89 (Ohio 1998)

(finding such closure orders to be in the same footing as

“seizures” of property). Keshbro distinguished such closures

from temporary moratoria in the “land use and planning arena,

where an entirely different set of considerations are implicated

from those in the context of nuisance abatement where a

landowner is being deprived of a property’s dedicated use”.

Keshbro, Inc. v. City of Miami, 2001 WL 776555, 6 (Fla. 2001).

These two cases and one Washington intermediate court of

appeals case differ from temporary moratoria because they find

a taking from the interference with the property owner’s ability

to lease his existing property, to gain physical access to the land

and buildings. Nevertheless these cases are also wrongly

decided because they fail to properly analyze Lucas’ holding. See

Zeman v. City of Minneapolis, 552 N.W.2d 548 (Minn. banc 1996)

where the court held that a temporary revocation of an

apartment license to abate nuisances was not subject to the

Lucas per se rule because the apartment license was taken, if at

all, only temporarily. 552 N.W.2d at 553 n.4. The court held that

temporary nuisance closures should be analyzed using Penn

Central and concluded that since the ordinance furthered a

legitimate state interest in deterring criminal activity, it

prevented a public harm and no taking resulted. 552 N.W.2d at

553-555.

27

character of the action and on the nature and

extent of the interference with rights in the par-

cel as a whole.

Penn Central, 438 U.S. at 130-31.12 Consistent with Penn

Central, the Supreme Court declined to find a categorical

take in Andrus, 444 U.S. 51 (1979). The Court reasoned

that “where an owner possesses a full ‘bundle’ of prop-

erty rights, the destruction of one ‘strand’ of the bundle is

not a taking, because the aggregate must be viewed in its

entirety.” Id. at 65-66.15 When a moratorium temporarily

restricts use of property, the rights in only one particular

temporal segment have been restricted, not all rights.

When the effect of a moratorium is viewed in the context

of an owner’s entire property, it is apparent there has

been no Lucas-type taking.

Petitioners assert that viewing the parcel as a whole

was rejected by this Court in First English. They cite to the

vigorous dissent of Judge Kozinski on the denial of the

motion to rehear the case en banc, where he accuses the

majority of having adopted the statement made by Justice

Stevens in dissent: “Regulations are three dimensional;

they have depth, width and length. . . . Finally, and for

purposes of this case, essentially, regulations set forth the

duration of the restrictions.” First English, 482 U.S. at 331

(Stevens, J., dissenting). Petitioners assert that the major-

ity in First English rejected Justice Stevens’ reasoning: “In

First English, this Court directly faced the question of

12 The Penn Central formalization for takings analysis has

recently been strongly reaffirmed by this Court in Palazzolo, just

this past term, 121 S. Ct. 2448 (U.S. June 28, 2001).

13 It is remarkable that at the beginning of the Twenty-First

Century the fundamental scientific principle of our time,

Einstein’s recognition that space and time are the third and

fourth dimensions of physical matter, would not be regarded as

a reality by the courts.

28

whether the length of time made any constitutional dif-

ference. The dissent thought it did (482 U.S. at 318). The

majority, however, decided it did not (482 U.S. at 321).”

Petitioner’s Brief at 21.

In fact, the First English majority did not reject Justice

Stevens’ dissent on this point at all - it did not rule on

this point or on the “parcel as a whole” theory. It rejected

merely the dissent’s proposition that the remedy for tak-

ings was invalidation, not compensation. On the issue of

temporary takings, the Court could not have been more

explicit. Relying heavily on United States v. Dow, 357 U.S.

17, 78 S. Ct. 1039, 2 L. Ed. 2d 1109 (1958) (abandonment of

condemnation proceedings already constituting a taking)

and three cases involving direct condemnation of lease-

hold interests for shorter periods of time, the Court held:

“Where this burden results from governmental action

that amounted to a taking, the Just Compensation Clause

requires that the government pay the landowner for the

value of the use of the land during this period, C.f. United

States v. Causby, 328 U.S. at 261.” First English, 482 U.S. at

319. It was not time that was critical to First English but

whether the governmental action had already amounted

to a taking. The property at issue in the case sub judice

retained value and there were a range of uses available,

as well as all future uses avai able after the thirty-two-

month moratorium period. If 2 regulation is temporary,

all reasonable use has not been denied because all future

uses remain.'4

14 Property interests under the common law explicitly deal

with the length of time that an interest lasts. One of the geniuses

of the common law system distinguishing it from its European

civil law counterparts was the early recognition that estates in

land have present and future interests. See Lewis Simes, Future

Interests, Introduction 2-3 (1951) “In Anglo-American law there

are two devices by which the owner of property projects his will

29

Finally, there are practical planning and administra-

tive reasons for considering the entire property when

determining whether regulatory impact amounts to a tak-

ing. Reasonable regulation in pursuit of the public inter-

est will necessarily burden certain pieces of the owner’s

physical property. However, for courts to base their tak-

ing analysis on just the affected pieces would result in the

irrational circumstance of government having to compen-

sate the property owner for the incremental impact of the

regulation, regardless of the overall remaining usefulness

of the entire parcel. See Keystone, 480 U.S. 470. The

unworkable application of this reasoning became appar-

ent in Washington, when the state supreme court first

held that a greenbelt set-aside that limited the use of only

a portion of certain properties amounted to an uncon-

stitutional taking. Allingham v. City of Seattle, 109 Wash.2d

947, 948, 749 P.2d 160 (Wash. 1988), amended by, 757 P.2d

533 (Wash. 1988). Just two years later, recognizing the

catastrophic nature of its prior holding, the court

reversed itself, recognizing that:

[NJeither state nor federal law has divided

property into smaller segments of an undivided

parcel of regulated property to inquire whether

pieces of it has been taken. . . . Rather, we have

consistently viewed a parcel of regulated prop-

erty in its entirety. Federal case law has also

specifically refused to focus its inquiry upon a

given portion of a regulated property. . . . To the

extent Allingham is inconsistent with the forego-

ing analysis, it is hereby overruled.

into the future. They are the trust and the future interest.” The

latter, for the most part, are alienable, assignable and

inheritable, and support standing for actions in executory

interests and reversions following life estates and terms of

years. Ashbel G. Gulliver, Law or Future Interests, at 73 (1959).

30

Presbytery of Seattle v. King County, 114 Wash.2d 320,

334-35, 787 P.2d 907 (1990) (emphasis in original) (cita-

tions omitted).

Similarly, the temporal element of property owner-

ship must also be viewed in the entirety. See Agins, 447

U.S. at 258; Andrus, 444 U.S. at 65-66. Unless the entire

term of ownership is recognized as the appropriate tem-

poral denominator over which to measure the relative

impact of the challenged regulation, results as irrational

as those recently recognized by the Washington Supreme

Court will characterize takings jurisprudence, and

accordingly will diminish the traditional rights of state

and local governments to regulate land in a reasonable

manner. Euclid, 272 U.S. 365 (1926).

CONCLUSION

The grant of certiorari should be dismissed as improv-

idently granted, or in the alternative, the Ninth Circuit

opinion holding that no categorical taking occurred

under the Fifth Amendment should be affirmed.

Respectfully submitted,

Rosert H. Fremicn*

E. Tyson SmitH

Jason M. Drvetsiss

Fremicu, Lerrner & CARLISLE

4435 Main Street

Kansas City, MO 64111

(816) 561-4414

* Counsel of Record for Amici Curiae

November 12, 2001