Among Justice John Paul Stevens's Landmark Legacies: Tahoe-sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

• Publication year: 2022

53 Creighton L. Rev. 77. AMONG JUSTICE JOHN PAUL STEVENS'S LANDMARK LEGACIES: TAHOE-SIERRA PRESERVATION COUNCIL, INC. V. TAHOE REGIONAL PLANNING AGENCY

AMONG JUSTICE JOHN PAUL STEVENS'S LANDMARK LEGACIES: TAHOE-SIERRA PRESERVATION COUNCIL, INC. V. TAHOE REGIONAL PLANNING AGENCY

D.O. MALAGRINO ^[*]

I. INTRODUCTION

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, ^[1] Justice John Paul Stevens's majority opinion made the Lucas v. South Carolina Coastal Council ^[2] decision effectively immaterial because Justice Stevens treated partial, temporal regulatory takings the same as partial, spatial regulatory takings. And, by doing so, Justice Stevens refocused the doctrinal lens of takings law.

Liberal jurists never liked the Lucas categorical test for regulatory takings, anyway. Justice Harry Blackmun's dissenting opinion in Lucas ("[o]f missiles and mice") equated Justice Antonin Scalia's majority opinion to launching a missile to rid a mouse. ^[3] Blackmun wrote, "The Court makes sweeping and . . . misguided and unsupported changes in our takings doctrine . . . . Although it limits these changes to the most narrow subset of government regulation-those that eliminate all economic value from land-these changes go far beyond what is necessary . . . ." ^[4] He described the majority's opinion in Lucas as having two components: (1) the Court's new categorical rule (land use regulations that prohibit all economic uses of property are takings) ^[5] and (2) the exception to it (unless the prohibited uses are common law nuisances). ^[6]

Justice Stevens's dissenting opinion in Lucas described the majority's opinion as "lacking support in past decisions," ^[7] and the categorical rule as "wholly arbitrary." ^[8] He wrote that the Lucas approach to regulatory takings doctrine would "hamper the efforts of local officials and planners who must deal with increasingly complex problems in land-use and environmental regulation." ^[9]

And yet, it was Lucas's very arbitrariness why it has become inconsequential: minimizing the obstacles to urban planning that it initially presented-that is, urban planners may better accomplish comprehensive zoning of uses for everyone's mutual benefit by employing temporary regulations, which by definition will not be a complete destruction of property value. ^[10] Lucas often appears as one of the most important cases on regulatory takings law. ^[11] But, as Justice Blackmun predicted then, rarely would regulatory programs wipe out all value altogether. ^[12] So then, was Lucas actually an insignificant decision, establishing a categorical rule of law that lacked any practical effect, as the reaction to it would be regulatory schemes that take some but not all value? ^[13]

At the time, no one could know for sure; however, that question seemed on-target considering the majority opinion in Tahoe directly interpreted Lucas, ^[14] and in the years since 2002 local officials and urban planners have avoided Lucas analyses altogether by incorporating non-permanent provisions in any regulatory scheme. ^[15] In Tahoe, the majority held that under Lucas, for a regulation to be a "taking" (thus necessitating just compensation), the regulation must not only render the property devoid of all economically beneficial uses, but also must render the property valueless, recognizing that property is measured both spatially by metes and bounds, and temporally by duration. ^[16]

This study will survey the impact Tahoe has had on regulatory takings doctrine since 2002, and will conclude that after Tahoe, Lucas became immaterial, and all regulatory takings cases now require a Penn Cent. Transp. Co. v. N.Y.C. ^[17] analysis, as a result. ^[18] Moreover, because regulatory takings doctrine highlights a deeply rooted problem with takings clause analyses, this study goes further and suggests that takings clause analysis throughout its history improperly focuses on whether a governmental action is a "taking," when what the courts' really need to determine is what is the constitutionally-required just compensation for the governmental action. ^[19]

II. PRIMER ON THE LAW OF REGULATORY TAKINGS

Lucas ^[20] is immaterial after Tahoe ^[21] because the government can totally evade a Lucas -required just compensation by limiting the duration of the regulation, thus making the regulation a taking of less than the complete value of the property and requiring every landowner who seeks just compensation to meet the Penn Central ^[22] balancing test for the regulation to be considered a taking requiring just compensation. The result is that agencies no longer use permanent regulations since Tahoe. ^[23] Therefore, regulatory schemes since 2002 have not rendered land valueless and thus have not been analyzed through the Lucas lens: the categorical test. ^[24]

Further, the government ought to pay just compensation for losses accruing from the time a regulation effects a taking until the time the regulation is rescinded or amended. ^[25] The U.S. Supreme Court presumably agrees with this notion; ^[26] however, the case law has hovered around defining what is a taking, concluding that some regulations that logically are takings are somehow not takings requiring just compensation. ^[27] Instead, the debate should focus not on whether a regulation is a taking but rather on what is the constitutionally-required just compensation for the taking. Additionally, the courts should analyze this and all regulatory takings questions under Penn Central, where the ad hoc balancing test is used to determine what compensation is just, rather than what is a taking.

The Constitution requires just compensation. ^[28] Does that not call for a Penn Central analysis for all takings anyway, looking at the economic impact of the property holder and the character of the government action to determine what is "just?" It is a multi-factor test, considering the social value of what the government has done and seeking a result that is fair and substantially just. ^[29] Sure, the courts should liberally interpret what constitutes a taking. Unlike a common law nuisance-wherein the abstraction is that "you should have known that you cannot use your property in a way that will substantially and unreasonably interfere with your neighbor's use of their property"-a regulatory change or new zoning ordinance that limits the previously-lawful use of your property actually by definition takes away something you would have had the right to do previously. Who can deny that nearly every law takes a stick out of the bundle? More importantly, though: what is the just compensation due when a regulation takes?

It is inconceivable to think that anything less than a regulation that stripped a fee simple of all value is a taking only if it meets the Penn Central requirements, ^[30] especially considering Penn Central's test for a compensable taking to be the distinct investment-backed expectations formulation. ^[31] This formulation really is for the purpose of determining what would be just compensation, not what is a taking. ^[32] Further, under Lucas, if compensation is required, there arises the problem of determining just what interest the government has taken; although the regulation must presumably have taken all economic use of the land, or even more significantly under Tahoe have taken all value of the land, what happens when the regulation that has gone too far ^[33] is later repealed? ^[34] The title holder would have received an undeserved windfall if the just compensation truly had compensated for the permanent deprivation of all value of the property, that is if it contemplated infinite duration of the regulation. ^[35] Yet, under Tahoe the compensation award must be for permanent losses. ^[36]

In fact, what the cases since Tahoe have shown is that it is likely that most regulations, of course, will not deprive the property owner of the entire value of the property. ^[37] These may, however, destroy use and enjoyment of the property just as effectively as physical occupation or destruction would do. ^[38] The Lucas/Tahoe rules really afford very little protection against such regulatory takings; yet, does not justice require compensation for them? Yes.

In Tahoe, the Supreme Court held that temporary development moratoria do not automatically constitute regulatory takings requiring just compensation under the Fifth Amendment. ^[39] Whether a takings claim requires compensation when a government enacts temporary regulation denying property owners all viable economic use of property is to be decided by applying factors of Penn Central. ^[40]

I hasten to say: Justice Stevens in Tahoe probably misapplied the Lucas standard for meeting the categorical rule by stating that the Lucas test turned on the regulation having "wholly eliminated the value of Lucas's fee simple title." ^[41] However, simply looking at the text of the majority opinion in Lucas, this test only calls for a regulation that denies "all economically beneficial or productive use" of the land to meet the categorical rule's standard for compensation. ^[42] Justice Stevens's characterization of what happened in Lucas probably was not accurate because the land would have still had a market value, even if only on the prospect of eventual change in the law. ^[43]

I say "probably" because whether the phrase fairly captures...