It's About Time: the United States Supreme Court Correctly Rejects Temporal Severance in Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

• Publication year: 2001

36 Creighton L. Rev. 479. IT'S ABOUT TIME: THE UNITED STATES SUPREME COURT CORRECTLY REJECTS TEMPORAL SEVERANCE IN TAHOE SIERRA PRESERVATION COUNCIL, INC. V. TAHOE REGIONAL PLANNING AGENCY

Creighton Law Review

Vol. 36

INTRODUCTION

In Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,(fn1) an association of property owners asserted that temporary moratoria on development deprived them of the beneficial use of their property in violation of the Takings Clause of the Fifth Amendment of the United States Constitution.(fn2) The Takings Clause requires that individuals be compensated for property that the government has taken "for public use, without just compensation."(fn3) The United States Supreme Court has applied the Takings Clause in two contexts.(fn4) First, the Court has determined that the Takings Clause requires the government to compensate property owners on a per se basis when the government physically invades or appropriates property.(fn5) Second, the Court has ruled that the government must compensate property owners when a government regulation goes "too far" and deprives property owners of the beneficial use of their property.(fn6) In the regulatory context, the Court has reasoned that regulations permanently depriving a property owner of all beneficial use require compensation on a per se basis, whereas regulations that partially deprive a property owner of beneficial use should be measured on an ad hoc basis.(fn7)

In Tahoe, the Supreme Court determined that regulatory moratoria which temporarily prohibited property owners from the beneficial use of their land were not takings on a per se basis.(fn8) The Court therefore determined that the moratoria would not require the government to automatically compensate property owners upon enacting regulatory moratoria.(fn9) The Court stated that pursuant to its takings jurisprudence, the only claims that had ever required compensation on a per se basis were those alleging the government had physically appropriated property or regulations that had permanently deprived a property owner of all beneficial use of his property.(fn10) The Court further stated that the moratoria at issue did not permanently deprive the property owners of all beneficial use of their land because the regulations were temporary and the land retained value based on the property owners' future abilities to use the property.(fn11)

Additionally, the Court explained that it had avoided adopting per se compensation rules in the regulatory takings context because the balancing test espoused in Penn Central Transportation Co. v. New York City,(fn12) rather than the per se approach, was the preferred method for determining whether a temporary regulation had effected a taking.(fn13) The Court in Tahoe then reasoned that requiring per se compensation was not a practical approach because adopting such a rule would severely impact traditionally accepted exercises of the states' police powers.(fn14) Finally, the Court opined that the decision against per se compensation for temporary moratoria did not signify that the Court could never find that temporary moratoria effected a taking; it merely stood for the proposition that courts must consider such claims under the Penn Central ad hoc inquiry.(fn15)

First, this Note will explore the Supreme Court's holding in Tahoe, which stated that temporary moratoria were not per se takings.(fn16) Second, this Note will discuss the Court's development of multiple tests for determining whether a government action has taken property in violation of the Fifth Amendment.(fn17) Third, this Note will address the Court's decision in Tahoe, which stated that physical takings jurisprudence was not of precedential value for inquires determining whether a regulation effected a taking.(fn18) Additionally, this Note will discuss the Court's reasoning that takings precedent required courts to measure the allegedly taken interest in light of the "parcel as a whole."(fn19) Furthermore, this Note will stress that theCourt's decision in Tahoe will still allow property owners to contest temporary deprivations of use under the Penn Central test, which does not find a taking on a per se basis, but focuses on the specific facts of each claim.(fn20) Finally, this Note will conclude by discussing how the Court's decision in Tahoe balanced the government's need for flexibility in the land use planning regime with a property owner's ability to challenge government regulations that temporarily deprive him of the beneficial use of his property, ultimately placing a greater emphasis on the government's interest than that of the individual property owner.(fn21)

FACTS AND HOLDING

In Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,(fn22) the Tahoe Sierra Preservation Council ("Property Owners"), a non-profit corporation representing approximately two thousand property owners, sued Tahoe Regional Planning Agency ("Planning Agency"), the land use regulatory commission.(fn23) Situated between Nevada and California, Lake Tahoe's "indescribabl[e] beaut[y]" results from the unusual clarity of its water arising from a lack of algae in the lake.(fn24) The lake's natural beauty draws new residents to the area to develop the surrounding property, which created disputes regarding moratoria on development of the Lake Tahoe Basin.(fn25) Since the 1950s, there has been a notable decrease in water clarity, which has been attributed to the building of new residences surrounding the lake.(fn26) The increase in development and non-permeable surfaces has caused excessive amounts of algae to enter the water, which has reduced the clarity of the lake.(fn27)

Recognizing the need for a regional approach to protect the Tahoe Basin from over-development, the States of California and Nevada passed the Tahoe Regional Planning Compact(fn28) ("the Compact"), which created the Planning Agency to regulate development in the region.(fn29) In an effort to prevent excessive nutrient loading, the Plan-ning Agency instituted a program regulating land use, which classified property in relation to the area's susceptibility to water run-off.(fn30) To do so, the Planning Agency developed a classification scheme that divided the land into seven capability districts based on the land's ability to withstand the impact of development.(fn31) The classifications were such that a classification of "one" was the most environmentally sensitive to development, and a classification of "seven" was the least sensitive.(fn32) The Planning Agency deemed districts one through three as high-sensitivity lands due to the surfaces' slopes and vulnerabilities to non-filtered run-off.(fn33) The Property Owners owned class one through three lands.(fn34)

Then, in 1981, the Planning Agency passed the first of two moratoria that temporarily prohibited development on high-sensitivity lands but allowed property owners to construct some single-family homes on the Nevada side of the lake.(fn35) That moratorium prohibited property owners from any grading, removal of vegetation, or construction on the regulated property.(fn36) Additionally, any activity not specifically prohibited by the moratorium required those who owned property in the Tahoe Basin to obtain permits from the relevant agencies.(fn37) The 1981 moratorium was scheduled to expire only when the Planning Agency amended the regional plan in force at that time.(fn38)

Two years later, the second moratorium suspended all development permits on high-sensitivity property until the Planning Agency could formulate and adopt a permanent regional plan.(fn39) Like the 1981 moratorium, this moratorium prohibited development until the Planning Agency adopted the new regional plan.(fn40) Despite the fact that the Planning Agency scheduled this moratorium to expire after only ninety days, the Planning Agency extended the deadline and the moratorium continued for months past the initially allotted ninety-day period.(fn41)

In April 1984, approximately thirty-two months after the Planning Agency imposed the initial moratorium on development, the Planning Agency adopted a comprehensive regional land use plan to regulate the use of property surrounding the Tahoe Basin.(fn42) On the day the Planning Agency adopted the regional plan, the State of California filed suit against the Planning Agency in the United States District Court for the Eastern District of California to enjoin the agency from implementing the plan, claiming the plan was not sufficiently stringent to protect the Lake Tahoe Basin.(fn43) The state argued that the new regional plan did not sufficiently control potential uses of land.(fn44) On June 15, 1984, the district court granted a temporary restraining order prohibiting the Planning Agency from approving any development on high-sensitivity areas.(fn45)

The Property Owners in Nevada and California also responded adversely to the 1984 regional plan by filing suits against the Planning Agency in the United States District Courts for the District of Nevada and the Eastern District of California.(fn46) After initially proceeding separately, the courts consolidated the Property Owners' actions and presented the claim in the United States District Court for the District of Nevada.(fn47) In addition to damages, the Property Owners requested injunctive and declaratory relief for violations of the Due Process Clause, the...