United States Supreme Court: 32-Month Development Moratorium Not Automatically a Taking
May 1, 2002
In a departure from the trend in recent Supreme Court land use decisions that have favored property owners, the Supreme Court, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (No. 00-1167) held that a 32-month development moratorium put in place by the Tahoe-Sierra Preservation Council was not automatically a taking. The 6-3 decision was entered on April 23, 2002. The Supreme Court's holding allows governments to establish construction moratoria long enough to take the time necessary to formulate land use policies and associated development regulations.
The Tahoe Regional Planning Agency is responsible for developing a comprehensive land use plan and a regional water quality plan for the Lake Tahoe area. In the 1980s, the Agency adopted a series of development moratoria, halting development while the Agency formulated its plans. Landowners in the area sued, claiming that the development moratoria constituted a taking of property without just compensation in violation of the Constitution.
The Supreme Court rejected the landowners' argument that any moratorium on development should, automatically, constitute a taking. Instead, the Court held that a temporary development moratorium may be a taking, but that it depends on the specific facts and circumstances of each case. The Court referenced its long line of cases holding that governments must be allowed to regulate landowners to some degree. It also observed that a ruling that outlawed all development moratoria would prevent the kind of thoughtful planning process that land use regulation requires.
The Court held that, based on the facts in this case, no taking occurred. The most important factor appears to have been the undisputed facts that the 32 months required by the Regional Planning Agency to develop its plan was a reasonable time period for the complex issues involved, and that the Agency had not improperly stalled or delayed preparation or implementation of the regional water quality plan. If the Agency had taken longer than necessary to develop its plan, the result might have been different. The Court noted that the interest in a thoughtful planning process was greater because the planning process was for a regional plan, not just for a permit for a single parcel. The Court also observed that state legislatures may adopt limits on the length of time planning agencies may enforce development moratoria.
The Supreme Court's decision allows government agencies to implement development moratoria while they consider land use policies and associated development regulations. Governments must be careful about implementing development moratoria, and must use the time to prepare land use policies and associated development regulations. The Court made clear that in some cases development moratoria could be takings, and that takings will occur when development moratoria last longer than reasonably necessary to complete a thorough and thoughtful planning process. However, the Supreme Court's ruling means that governments that act diligently and in good faith to prepare regulations and policies will not be punished for taking the time to do so.
The opinion of the Court in this case was authored by Justice Stevens and joined by five other Justices. Chief Justice Rehnquist authored a dissenting opinion joined by Justice Scalia and Justice Thomas. Justice Thomas also authored a separate dissent joined by Justice Scalia.
For more information, contact Elliot Regenstein or David Silverman.
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