On April 23, 2002, the U.S. Supreme Court released its decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,¹ ruling 6 to 3 that a temporary prohibition of the use of land does not effect a taking for which compensation is due under the Takings Clause of the U.S. Constitution. While it was widely anticipated that the Court would use Tahoe-Sierra to clarify some of the murkier areas of regulatory takings jurisprudence, the decision answers very few questions and obscures many others.

By adding Tahoe-Sierra to its lineup, the Court has only exacerbated the need for it to rule definitively on certain key issues, including the fate of partial takings claims under Penn Central Transportation Co. v. City of New York,² the true parameters of the total takings analysis under Lucas v. South Carolina Coastal Council,³ and how to define the property interest at issue. With the law of regulatory takings presently lacking any degree of predictability—typically a hallowed legal principle—only a property owner willing to risk substantial amounts on litigation expense can litigate a takings claims to conclusion. The critical nature of the right at stake, i.e., the interest in personal property explicitly protected by the Fifth Amendment, demands that the Court issue clear guidance on these persisting preliminary questions. The ruling, coming less than 10 months after the Court's ruling in Palazzolo v. Rhode Island,⁴ in which the Court appeared to foreshadow that it would be charting a clear course to finally explain the murkier parameters of regulatory takings law, suggests now that the answer to some of these questions is that "there is no there there."⁵

Just several months ago, in a recent Dialogue, we suggested that the Court's decision in Palazzolo, "is yet another sign of the general march of the Supreme Court toward stricter accountability for governmental land use decisions that adversely impact private property."⁶ Now, we cannot be so certain. This Dialogue first examines the decision in Tahoe-Sierra and then explores three of the critical issues left open, and regrettably obscured, in its wake.