I. Introduction

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the U.S. Supreme Court concluded that challenges under the U.S. Constitution's Fifth Amendment Takings Clause to temporary land use regulations are to be resolved by applying the flexible balancing test set forth in Penn Central Transportation Co. v. New York City. In so holding, the Court, in a 6-3 decision, declined an invitation to adjudge such regulations under the per se rule enunciated in Lucas v. South Carolina Coastal Council. Although there is little disagreement that the government scored a victory in Tahoe-Sierra, commentators have offered strikingly different assessments of the extent to which the decision will affect regulatory takings jurisprudence. To some disappointed scholars, Tahoe-Sierra offers few guideposts for navigating the morass of regulatory takings law. Others maintain that the Court's pronouncements in Tahoe-Sierra will revolutionize regulatory takings doctrine, destining the decision for landmark status.

This Article stakes out a position in the middle ground, concluding that Tahoe-Sierra's pronouncements range from fairly unremarkable to considerably illuminating. After recounting the facts underlying Tahoe-Sierra and the procedural history that culminated with the Court's 2002 decision in Part II, Part III examines in detail Tahoe-Sierra's position on a number of takings issues. Specifically, Part III.A. explores the "fundamental" distinction between physical takings and regulatory takings drawn by Tahoe-Sierra and considers its effect on the continuing integrity of Lucas, as well as First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, the Court's seminal temporary takings decision.