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Development Moratoria, First English Principles, and Regulatory Takings

October 2001

Citation: ELR 11232

Author: Steven J. Eagle

Is an intentional temporary deprivation of the use of land not a "temporary taking"? This proposition was asserted by a panel of the U.S. Court of Appeals for the Ninth Circuit in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency.1 The Ninth Circuit denied en banc review,2 despite a strong dissent by Judge Alex Kozinski.3 Perhaps because it had never explicated the meaning of "temporary taking," and perhaps in part because its interest was kindled by the Kozinski dissent, the U.S. Supreme Court recently granted certiorari.4 The question is limited to:

Whether the 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 United States Constitution.5

The author is a Professor of Law at George Mason University Law School, Arlington, Virginia. He may be reached at seagle@gmu.edu.