Jump to Navigation
Jump to Content

Moratoria as Categorical Regulatory Takings: What First English and Lucas Say and Don't Say

September 2001

Citation: ELR 11037

Author: Thomas E. Roberts

Introduction

On June 29, 2001, the last day of the October 2000 term, the U.S. Supreme Court granted certiorari to consider "whether the [Ninth Circuit] Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the [U.S.] Constitution?"1 The case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,2 provides the Court with an opportunity to clarify its opinions in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles3 and Lucas v. South Carolina Coastal Council.4 Several property rights advocates5 claim that the Ninth Circuit misapplied these cases in Tahoe-Sierra, but I do not believe these cases support the argument that a moratorium is necessarily a taking.

While the First English opinion has some confusing and arguably contradictory statements about temporary takings, the holding of the case did not find or suggest that a moratorium was a per se taking. Neither did the Lucas opinion. Beyond that, the dicta and spirit of those decisions are contrary to the idea that moratoria should be treated as categorical or facial takings. The lower courts agree. With one exception, now reversed, courts have rejected this interpretation of First English, and found that moratoria are not categorical takings.6 The courts do suggest that a moratorium may be a taking if the delay is unreasonable. If, for example, an enacting agency does not follow a moratorium with timely, corrective action to address the concern that necessitated the moratorium in the first place, compensation may be due under the Fifth Amendment.7

In Tahoe-Sierra the Court will have at least two choices in dealing with the confusing language of First English. It can read the case, as have the lower federal and state courts, to confirm the prevailing view that a moratorium is not a categorical taking. Or, the Court can make new law and issue a ruling that a moratorium is a categorical taking.

The author is Professor of Law, Wake Forest University School of Law, Winston-Salem, N.C.