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

Thomas E. Roberts

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

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.

Moratoria Are a Part of the Land Use Planning and Permitting Process

Planning moratoria and other interim development controls are standard tools in the land use permitting process. Properly conducted planning activities take time. If building proceeds unabated during the planning process, the ultimately adopted plan may be undermined by vested rights and nonconforming uses acquired during the planning period. Thus, rational planning often requires a temporary restraint on land uses to preserve the status quo.

Land use permitting takes time. Whether it takes one month to receive a building permit, three months to receive a variance, six months to obtain a rezoning, or one year to wait out an interim freeze, there will be some period of time when the applicant is idled. Excessive periods of delay may constitute takings, but the mere fact of a delay cannot on its face be found to be a taking without eliminating the entire permitting process. Whether a delay of one day, one month, or one year is reasonable is a fact-based question. If the delay is unreasonable, a taking may be found. Take, for example, the case where a town enacted a sewer hook up moratorium until sewer problems were "rectified." After enacting the moratorium, the town did nothing to correct the situation. The court found a taking.⁸ It is not, however, an excessive burden merely to subject a landowner to a reasonable permitting process. Such procedures do not constitute an automatic taking.⁹

[31 ELR 11038]

The critical point is not that property owners should suffer harm because moratoria are important to the planning process. Rather, the point is that property owners can constitutionally be subject to reasonable planning restrictions and that no taking occurs under the Fifth Amendment if a property owner has a reasonable use over a reasonable period of time.

The Facial or Categorical Taking Issue in Tahoe-Sierra

Tahoe-Sierra involves a long running dispute between Tahoe area property owners and the Tahoe Regional Planning Agency (TRPA) over the latter's regulatory actions limiting land use to protect Lake Tahoe.¹⁰ The facts for the purposes of this discussion are fairly simple. In August 1981, in order to slow the deterioration in the quality of the waters of Lake Tahoe, the TRPA enacted a moratorium effectively freezing new development activity.¹¹ The moratorium was to last until a new regional plan could be in place. The TRPA adopted a new plan in April 1984 and, at that time, it lifted the moratorium. The new plan was immediately challenged in court and litigation over the plan has persisted since that time.

The affected landowners made two complaints. First, they asserted that the 1981-1984 moratorium was a taking on its face. They also complained that the totality of the restrictions of the new plan and the judicial intervention that followed effected a permanent restriction on all use.¹² I address only the former issue here, which is the issue on which certiorari was granted.

The district court found intense development activity in the Lake Tahoe area and the ecological sensitivity of the lake made the TRPA's task tremendously complex. The court found that the TRPA acted reasonably and did not waste time in enacting a new plan. Nonetheless, the district court felt compelled by First English and Lucas to find that a moratorium, even though reasonable in length and scope, is a categorical taking. The court of appeals, in a decision I cover in detail below, reversed the district court. First English and Lucas were at the core of both the district and appellate court decisions.

The Confusing First English Opinion

Quote From First English, Misleading When Taken Out of Context

"'Temporary' takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation."¹³

Holding of First English

"We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation. . . ."¹⁴

In 1978, an area of Los Angeles County suffered extreme flooding when rains carried a massive debris flow down Mill Creek. Thirteen people died in the town of Hidden Springs, and Lutherglen, a retreat of the First English Evangelical Lutheran Church that sat in the floodplain of the creek, was destroyed.¹⁵ The county's response to the flood was passage of Interim Ordinance No. 11855, which immediately banned most development activity in a designated interim flood protection area along the creek.¹⁶ This was a temporary measure to preserve the status quo enabling the city to study the problem and determine how best to avoid more deaths and property destruction due to building in the floodplain. After three years of study, the county converted the ordinance into a permanent floodplain restriction.¹⁷

One month after the interim ordinance was passed, the church, unable to rebuild in the floodplain, sued the county on several theories. One count was based on tort. The church claimed that the county's cloud seeding activities were responsible for the flooding. The church also claimed that the county's management of its upstream property caused the flooding, creating state statutory liability. Finally, the church sued in inverse condemnation, claiming the ordinance's denial of the right to rebuild entitled it to compensation. The trial court dismissed the inverse condemnation claim on the basis of the rule established by the California Supreme Court that barred the recovery of compensation for a regulation found to be excessive. The intermediate appellate court affirmed this dismissal, and the state supreme court declined review. The issue that went to the Court was the propriety of this dismissal. The question was solely the remedial one of whether invalidation was a sufficient and proper remedy for a regulation found to go "too far." The question of whether there had been a taking by either the interim ordinance or the permanent ordinance was not presented.¹⁸

First English Merely Resolved the Compensation Versus Invalidation Debate

Prior to First English, several courts had held that "regulatory takings" were not true takings in the sense that a finding that an ordinance had gone "too far" required payment of just compensation. Rather, these courts, including ones in Florida, New York, and Pennsylvania, in addition to California, held that invalidation of an excessive regulation was the proper and constitutionally sufficient remedy. In effect, these courts saw regulatory excesses as Fourteenth Amendment due process matters, not Fifth Amendment taking concerns.¹⁹ On four occasions in the seven years before First [31 ELR 11039] English, the Court had been asked to rule on the soundness of this view, but, as Chief Justice William H. Rehnquist said in First English, "concerns of finality [in those cases] left [the Court] unable to reach the remedial question."²⁰ That remedial question was decided in First English.

The First English Court rather quickly dispensed with the argument that regulatory takings were not true takings by affirming Justice Oliver W. Holmes' famous statement in Pennsylvania Coal v. Mahon²¹ that "'if regulation goes too far it will be recognized as a taking.'"²² Without reexamining the substantive arguments about whether these cases ought to be seen as Fourteenth Amendment due process cases or Fifth Amendment taking cases, the Court simply found the syllogism that a regulatory taking is a taking to be controlling, and like a physical taking, the mandatory constitutional remedy is just compensation.²³ It followed that the self-executing remedy of just compensation prescribed by the Fifth Amendment meant that injunctive relief was insufficient.

With this basic decision out of the way, the Court confirmed that a governmental entity whose regulation has been found by a court to be excessive, and hence a taking, has a "range of options."²⁴ The government can lift the offending regulation and pay for the period of time the ordinance was in effect (a temporary taking) or government can keep the ordinance in effect and pay permanent damages (a permanent taking). Whether a taking is temporary or permanent is a decision that rests with the government defendant.

On two occasions the First English Court spoke of an "invalidated" ordinance.²⁵ This is technically wrong.²⁶ The Fifth Amendment does not proscribe the taking of property for a public purpose.²⁷ It conditions the taking upon the payment of compensation. Regulations that "take" property are not invalid; they become, by judicial order, exercises of the power of eminent domain and, as such, carry a price tag. To make sense of the First English holding, we have to understand that "invalidated," in takings claims, means "converted into a taking because found to go too far." If the ordinance is kept in effect there must be compensation paid on the basis of a permanent taking. If the ordinance is lifted by the government, it then must pay for the period of the taking up to the judicial finding of a taking. This is the full extent of the First English holding.

It Is Irrelevant That the Facts of First English Involved a Moratorium

It is irrelevant to the law established by the Court in First English that the facts of the case involved a challenge to a moratorium. Any substantive challenge would have resulted in the same opinion, because the Court bypassed the merits of the case to rule on the propriety of California's remedy. The Court could have handed down the First English opinion in any of the four cases that preceded it, none of which was a moratorium case, where the Court for various reasons found the compensation issue not properly presented.²⁸

While the holding in First English had nothing to do with the fact that the plaintiff challenged a moratorium, that happenstance is used by some to argue that the First English Court ruled on the question of whether moratoria were takings.²⁹ That is not what happened. On remand, the state court found the delay caused by the interim ordinance to be reasonable and not a taking.³⁰ The Supreme Court then refused to review that decision.³¹

A myth exists among some that the plaintiff landowner in First English was awarded compensation.³² The Court in [31 ELR 11040] First English, in its own words, "merely held . . . that where a government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation."³³ It did not hold that a temporary denial of all use caused by a moratorium was a taking. It did not address the substance of takings law.

Sorting Out the Confusion

The First English opinion contains confusing language about temporary takings and temporary denials of all use. One reading of First English, albeit in my view a hasty one, may lead one to assume that moratoria, which are by definition temporary and which often deny all or most uses, are "temporary takings." But, they are not. There is a difference between a temporary restriction and a temporary taking.

One factor causing the confusion is the coincidence, as noted above,³⁴ that the landowner in First English sued the county based on its enactment of a temporary land use restriction. The challenge of the church and the result in the case would have been the same had the 1978 ordinance not been denominated "interim."³⁵ Yet, this coincidence led some commentators, and the district court in Tahoe-Sierra, to read the Court's remedial description of temporary takings as constituting substantive statements about temporary restrictions.

Even prior to First English, the compensation versus invalidation remedy debate had raised a question as to how moratoria would be treated if a compensation remedy were found to be mandated by the Fifth Amendment. Justice William J. Brennan's dissent in San Diego Gas & Electric Co. v. City of San Diego,³⁶ which was the precursor to First English, favored the compensation remedy and spoke of "temporary reversible takings."³⁷ His opinion prompted some commentators to wonder whether a temporary restriction would be a temporary regulatory taking.³⁸ This erroneous thinking (that a temporary restriction is the equivalent of a temporary taking) stems from giving a substantive law effect to a procedural label. Yet, as even Justice Brennan cautioned, the idea of a temporary taking is simply one that is "temporary, by virtue of the government's power to rescind or amend [a] regulation . . . ."³⁹

Another cause of confusion stems from the Court's reference to wartime leaseholds taken by the government. There, the temporary nature of the appropriation did not excuse the government from paying compensation, and, by analogy, said the First English Court, a government guilty of excessive regulation had to pay for a taking that had already occurred even if it repealed the offending regulation. In the wartime leasing cases, the government never contended that it was immune from paying compensation simply because its invasion was temporary. In fact, those actions were commenced by the government as direct condemnations, and the issues that went to the Court dealt with how to measure the compensation that was admittedly due. Inherent in the wartime leasehold cases—and explicit in First English—is that once a taking is found, the government cannot retroactively erase what it has done to avoid payment.

In dicta, the First English Court spoke confusingly when it said "normal delay" was not a taking:

We also point out that the allegation of the complaint which we treat as true for purposes of our decision was that the ordinance in question denied appellant all use of its property. We limit our holding to the facts presented, and of course do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us.⁴⁰

This is another example of the imprecision in the opinion. For the purposes of the remedy issue, the Court simply needed to say that whether there was a taking was not before it. The Court's quoted language makes it appear as if the Court was deciding that an ordinance that denied all use was a taking. Of course, the Court denied doing that elsewhere in the opinion. It noted, for example, that the government might be insulated from a taking by the health and safety exception,⁴¹ and it remanded the case to permit the state court to decide whether a taking had occurred.

Another problem is that the quoted language does not differentiate between the interim and the permanent ordinances. This matters when it comes to the validity of moratoria. Yet, one cannot tell from this quote whether the Court was contrasting the interim ordinance with its examples of normal delay or whether it was contrasting the ordinance that began as interim but was converted into a permanent ordinance. The Court's closing words suggest the latter.⁴²

[31 ELR 11041]

The confusing language of the First English opinion may also be due to the possibility that the Court changed its mind, midstream, about what it was doing: was it simply deciding the remedy issue or was it also reaching the merits? Justice Thurgood Marshall's papers indicate that in a draft of the First English opinion, Chief Justice Rehnquist had written that "on the record in this case the Fifth and Fourteenth Amendments to the U.S. Constitution would require compensation for that period."⁴³ That phrase, which does not appear in the final opinion, is itself ambiguous (it says "would require," rather than "requires"). But, in its published opinion, the Court made it clear that it was not finding that a taking had occurred.

In the final analysis, the Court's statement of the issue as whether "the Fifth Amendment . . . require[s] compensation as a remedy for 'temporary' regulatory takings—those regulatory takings which are ultimately invalidated by the courts"⁴⁴ helps a bit to clarify the matter. For greater clarity, the issue should have been written to ask whether "the Fifth Amendment . . . require[s] compensation as a remedy for 'temporary' regulatory takings—those regulations which are ultimately found by the courts to go 'too far' and where the government decides to repeal the ordinance." The Court's affirmative answer to its question says nothing about when a taking occurs, or how far is too far, and, most important, it does not condemn planning moratoria. It simply says that once a taking is found on the merits, compensation is the remedy.

Lucas

Quote From Lucas, Deceptive Out of Context

"When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking."⁴⁵

Lucas Court's Assessment of Its Holding

It will be an "extraordinary circumstance when no productive or economically beneficial use of land is permitted, . . . [one that will occur in] relatively rare situations . . . ."⁴⁶

The Lucas Categorical Taking Rule Is Not Applicable to a Temporary Restriction on Land Use

In Lucas, the Court examined a state law that precluded a beachfront property owner from ever engaging in any economically viable use of his land. The Court held that a statute that precluded economically viable uses of land was a categorical taking requiring compensation unless the state could show that the ban on use formed part of its background principles of property or nuisance law. The Lucas opinion understandably did not discuss moratoria. After all, the case did not involve one.

It would be inconsistent with the rationale of Lucas to extend its holding to include moratoria. The Court recognized that the government's conduct it addressed was rarely encountered. It was, said the Court, an "extraordinary circumstance when no productive or economically beneficial use of land is permitted, . . . [one the Court predicted that would occur in] relatively rare situations."⁴⁷ Unlike the unusual South Carolina restriction permanently banning most uses, temporary planning controls are common. Declaring them to automatically take property will be anything but rare. More important, a mere delay in use, if reasonable, does not resemble the extremity of the permanent loss of use such as that suffered by Lucas.

Attempting to come within the Lucas categorical rule, the landowners in Tahoe-Sierra focused solely on the present right to use property. Lucas, however, did not adopt or approve the segmentation of property interests into present and future strands. Justice Antonin Scalia in Lucas, in fact, acknowledged that the finding of a "'deprivation of all economically feasible use' [did] not make clear the 'property interest' against which the loss of value is to be measured."⁴⁸ The answer, he added, "may lie in how the reasonable owner's expectations have been shaped by the State's law of property . . . ."⁴⁹

Tahoe-Sierra, an Analysis

The Ninth Circuit Opinion

The Ninth Circuit reversed the district court's decision that the moratorium effected a categorical taking. In so doing, the court noted that the landowners claimed only a categorical taking and that the landowners brought only a facial challenge. The court then rejected the landowners' argument that the 32-month moratorium period should be carved out of the bundle of property rights and viewed separately for the purposes of determining the ordinance's economic impact.

The court found the Lucas categorical rule inapplicable. Since only the present right to use was lost, no landowner had suffered a denial of all economically viable use as required by Lucas. Though it appeared to the court that some limited uses were permitted during the moratorium, the court assumed all use was denied for the 32 months. Yet, the temporary ordinance preserved the future use of the property, and this future use had a substantial present value.

First English was of no help to the plaintiffs either. As explored in greater detail below, the court reasoned that First English did not support the temporal severance argument. The opposite, in fact, was the case since the First English [31 ELR 11042] Court acknowledged that some government-imposed delay would not be a taking.

First English's "Normal or Reasonable⁵⁰ Delay" Dicta Refutes the Idea of a Categorical Taking Based on Delay

First English does not disaffirm the whole parcel or nonsegmentation rule.⁵¹ The Court's approach to temporal segmentation disavows the idea of automatically and totally severing present and future use rights.⁵² In dicta, the First English Court said: "we . . . do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us."⁵³ If some delay is allowed without constituting a taking, as the "normal delay" language suggests, then present use is not a severable, compensable strand. The mere present ability to use land does not, standing alone, constitute a taking.

The import of the "normal delay" language and its examples is that property owners must bear delay occasioned by reasonable governmental decisionmaking processes. As the First English Court notes, citing Agins v. City of Tiburon,⁵⁴ it has "rejected a claim that the city's preliminary activities constituted a taking,'" saying that "mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are 'incidents of ownership.'"⁵⁵

A number of state and federal courts have specifically addressed segmentation in the context of moratoria and they all apply the whole parcel rule to the time dimension. The general view is that one is guaranteed a reasonable use over a reasonable period of time, and that the mere loss of the present right to use land is not a severable interest.⁵⁶

The Tahoe-Sierra district court expressed the opinion that the "normal delay" language of First English "does not include interim moratoria" since moratoria are unlike the examples of building permits, zoning changes, and variances given by the Court.⁵⁷ They are distinct, said the court, because the examples "appear to involve delays that might occur once the process of applying for a permit has actually begun—not something that prevents the permit process from beginning at all."⁵⁸ That is not so. If a zoning change (one of First English's examples) is necessary, it must be obtained before one begins the permitting process. More important, however, even if there is a distinction, it is one without a difference. A five-year freeze followed by a one-day permitting delay is no different from a one-day freeze followed by a five-year permitting process. Furthermore, an application for a permit might trigger a moratorium. And, on occasion, informal administrative delays, which are de facto moratoria, occur after a permitting process begins. Both are upheld where reasonable.⁵⁹

The Ninth Circuit's Appropriate Reliance on the Stevens' Dissent

Protesting the refusal to rehear the case, Judge Alex Kozinski is troubled by what he calls the panel's "plagiarism"⁶⁰ of the First English dissent of Justice John P. Stevens. I do not quarrel with the view that the Ninth Circuit used Justice Stevens' dissent "sub rosa,"⁶¹ but its use was harmless. Had the Ninth Circuit used the dissent to hold that a taking had occurred but the government would not be liable because it had ended the freeze, I would agree with Judge Kozinski and Prof. Steven J. Eagle that the court erred. But, the Ninth Circuit did not use the dissent in this way.

The difference of opinion between the First English majority and dissent involved the consequence of the state's exercise of its option to repeal a law found to go "too far." For Justice Stevens, when a court decided that a regulation went "too far," and the state repealed the law, compensation did not have to be paid since, for him, the temporary loss of use was not sufficiently burdensome to be considered a taking. Justice Stevens thought the right to compensation should be triggered only if the law remained in force. For the dissent, the time it took to litigate the challenge was not compensable. In contrast, for the majority, the state's choice to lift the regulation did not erase the loss of use sustained. For the majority, [31 ELR 11043] once the gavel fell and a taking was declared, the state could cut its losses by lifting the law, but, at a minimum, it had to pay up to that point in time.

The relevant portion of Justice Stevens' dissent, which contrasts closely with the language of the Ninth Circuit,⁶² reads:

Regulations are three dimensional; they have depth, width, and length. As for depth, regulations define the extent to which the owner may not use the property in question. With respect to width, regulations define the amount of property encompassed by the restrictions. Finally, and for purposes of this case, essentially, regulations set forth the duration of the restrictions. It is obvious that no one of these elements can be analyzed alone to evaluate the impact of a regulation, and hence to determine whether a taking has occurred.⁶³

While Justice Stevens lost his specific argument that the time it took to litigate the claim ought not be compensable, his broader statements about the temporal dimension of property rights were not rejected by the majority, and remain viable on the question of when a taking occurs. The Ninth Circuit simply used the dissent's general idea that present use rights ought not be severed, and it is this use that Judge Kozinski and Professor Eagle fail to note.

The Ninth Circuit Did Not Say a Moratorium Can Never Be a Taking

Judge Kozinski charges that the Ninth Circuit panel in Tahoe-Sierra took the view that "a temporary regulation can never be a regulatory taking."⁶⁴ This misreads what the court did, which was to reject the inflexible rule of the district court that moratoria were always takings. As the court said, "to not reject the concept of temporal severance, we would risk converting every temporary planning moratorium into a categorical taking."⁶⁵ This concern with converting all moratoria to takings suggests some might be takings.

Furthermore, recall that the Ninth Circuit was reviewing the landowners' facial challenge and the district court's categorical taking finding. The court's opinion suggests that an as applied taking could be found on a proper record. The panel notes, for example, that the district court found that the TRPA worked diligently and that the 32-month delay was but "a small fraction of the useful life of the Tahoe properties."⁶⁶ This suggests that were the facts to the contrary the court would consider whether a taking had occurred.⁶⁷ And, the panel expressly conceded that "were a temporary moratorium designed to be in force so long as to eliminate all present value of a property's future use, [it] might be compelled to conclude that a categorical taking had occurred."⁶⁸

Professor Eagle worries that "one 'temporary' regulatory barrier could be crafted after another, with no individual regulation being deemed a taking."⁶⁹ The landowners in their petition for certiorari likewise complain that a "rolling series of moratoria/use prohibitions is no different than a single, blanket prohibition."⁷⁰ City of Monterey v. Del Monte Dunes at Monterey, Ltd.⁷¹ makes it clear that abuses such as these are cognizable in as applied challenges.

Conclusion

Land use moratoria are an integral and rational part of land use planning and permitting. Their importance does not immunize them from being found to be takings, but their regular use, formally and informally in the permitting process, does form a part of a landowners' expectations, and reasonable expectations are relevant to the takings inquiry.⁷² A temporary restriction, whatever its label, standing alone, does not impose the kind of harm dealt with in the Court's categorical takings jurisprudence: loss of all economically viable use or a permanent physical invasion. A temporary restriction does not run afoul of the essential protection afforded to property owners by the Fifth Amendment, the guarantee of a reasonable use over a reasonable period of time.

While several courts have expressed erroneous views of First English in dicta,⁷³ when squarely presented with the question of whether a moratorium is a categorical taking, state and lower federal courts have consistently said no. They have understood whatsome commentators have not, that First English was a remedial decision that [31 ELR 11044] did not alter the substantive takings test. Professor Eagle suggests the question in Tahoe-Sierra is "whether the moratorium works a taking under First English principles."⁷⁴ This cannot be so because First English does not contain principles⁷⁵ that address when a taking occurs. It only says what remedy is provided once a taking is found.

1. Tahoe-Sierra Preservation Council v. Tahoe Reg'l Planning Agency, 121 S. Ct. 2448 (2001).

2. 216 F.3d 764, 30 ELR 20638 (9th Cir. 2000), reh'g en banc denied, 228 F.3d 998 (9th Cir. 2000), petition for cert. granted, 121 S. Ct. 2448 (2001).

3. 482 U.S. 304, 17 ELR 20787 (1987).

4. 505 U.S. 1003, 22 ELR 21104 (1992).

5. See Steven J. Eagle, Temporary Regulatory Takings and Development Moratoria: The Murky View From Lake Tahoe, 31 ELR 10224 (Feb. 2001); Michael M. Berger, Temporary Takings: The Ninth Circuit Wrongly Circumvents Fifth Amendment Compensation Requirement, L.A. DAILY J., Aug. 4, 2000; and Judge Alex Kozinski in dissent to the denial of a request for a rehearing en banc in Tahoe-Sierra, 228 F.3d at 999.

Readers should know that I co-authored an amicus brief on behalf of the American Planning Association in the Tahoe-Sierra case before the Ninth Circuit.

6. See Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478 (D.N.M. 1995) (two-year and six-month delay not a taking); Dufau v. United States, 22 Cl. Ct. 156, 21 ELR 20814 (1990), aff'd without opinion, 940 F.2d 677 (Fed. Cir. 1991) (16-month delay not a taking); Williams v. City of Cent., 907 P.2d 701 (Colo. App. 1995) (10-month delay not a taking); Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (Minn. App. 1992), cert. denied, 508 U.S. 960 (1993) (two-year delay not a taking); McCutchan Estates Corp. v. Evansville-Vanderburgh County Airport Auth. Dist., 580 N.E.2d 339 (Ind. App. 1991), cert. denied, 488 U.S. 823 (1988) (nine-month delay not a taking); Guinnane v. City & County of San Francisco, 197 Cal. App. 3d 862, 241 Cal. Rptr. 787 (1987), cert. denied, 488 U.S. 823 (1988) (one-year and five-month delay not a taking).

Landowners assert that Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 24 ELR 20169 (Fed. Cir. 1993) is in conflict. But, in Tabb Lakes, the court said that only unreasonable delay can give rise to a taking. See discussion of Tabb Lakes, infra note 67.

7. Courts have found them reasonable in purpose and duration in the vast majority of cases. See JULIAN C. JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND CONTROL LAW § 9.5 (1998).

8. See O.C. Constr. Co. v. Gallo, 649 F. Supp. 1331 (D.R.I. 1986).

9. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126, 16 ELR 20086, 20087 (1985).

10. Tahoe-Sierra, 216 F.3d at 779, 30 ELR at 20643.

11. Some use was allowed, but for the purposes of the issue here, I will assume, as did the court, that all present use was denied. 216 F.3d at 779 n.20, 30 ELR at 20643 n.20.

12. Prof. Steven J. Eagle, see Eagle, supra note 5, at 10227, raises the specter that the Ninth Circuit opinion allows the enactment of one moratorium after another, but that it not necessarily so. A court could find such tactics unreasonable. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 29 ELR 21133 (1999) (a taking found where landowners sought development permission over a period of 5 years, providing 19 different site plans to the city and receiving 5 formal opinions from the city rejecting each submission).

13. 482 U.S. at 318, 17 ELR at 20791.

14. Id. at 321, 17 ELR at 20791.

15. Id. at 307, 17 ELR at 20788. See also JOHN McPHEE, THE CONTROL OF NATURE 219-20 (1989).

16. 482 U.S. at 307, 17 ELR at 20788.

17. Id. at 313 n.7, 17 ELR at 20789 n.7.

18. "We accordingly have no occasion to decide whether the ordinance at issue actually denied appellant all use of its property. . . ." Id. at 312, 17 ELR at 20789.

19. See generally JUERGENSMEYER & ROBERTS, supra note 7, § 10.9.

20. 482 U.S. at 309, 17 ELR at 20788.

21. 260 U.S. 393 (1922).

22. 482 U.S. at 316, 17 ELR at 20790.

23. While critics of this aspect of the decision persist, I will move beyond that issue to discuss the remedy that flows from the decision. See, e.g., J. Peter Byrne, Ten Arguments for the Abolition of the Regulatory Takings Doctrine, 22 ECOLOGY L.Q. 89, 106 (1995).

24. 482 U.S. at 321, 17 ELR at 20791.

25. "Appellant asks us to hold that the Supreme Court of California erred in Agins v. Tiburon in determining that the Fifth Amendment, . . ., does not require compensation as a remedy for 'temporary' regulatory takings—those regulatory takings which are ultimately invalidated by the courts." Id. at 310, 17 ELR at 20788 (emphasis added). And, "once a court determines that a taking has occurred, the government retains the whole range of options already available—amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain." Id. at 321, 17 ELR at 20791 (emphasis added).

26. Though wrong, the characterization of an "invalidated ordinance" is understandable and consistent with the confusion that has long plagued the law in this area as to whether regulatory excess is a due process matter or a takings matter. Pennsylvania Coal, which First English, purported to follow, invalidated the state law; it did not award compensation.

27. Professor Eagle also makes this point, except he says that "after First English, it makes no sense to speak of 'invalidated' regulations . . . ." Eagle, supra note 5, at 10227. My point is that in First English the Court did that as well.

28. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 16 ELR 20807 (1986); Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 11 ELR 20345 (1981); Agins v. City of Tiburon, 447 U.S. 255, 10 ELR 20361 (1980). See First English, 482 U.S. at 310, 17 ELR at 20788, noting that these cases posed the same issue it was addressing. None of those cases involved a moratorium.

29. See Berger, supra note 5, where he says (as I quote him, the words in brackets and italics are my editorial comments):

First English was, or should have been central to the decision in Tahoe-Sierra. Both cases were planning moratoria cases. Thus, both cases involved temporary freezes on development [irrelevant]. . . . In First English, the Supreme Court concluded that the Fifth Amendment dealt with takings, regulatory as well as physical [true], and—critical for Tahoe-Sierra—temporary as well as permanent, including the temporary planning moratorium involved in First English [wrong, the moratorium in First English was not found to be a taking and by the time the Court looked at the case, the ordinance had been permanent for several years].

30. 258 Cal. Rptr. 893, 19 ELR 21329 (Cal. App. 1989). That court also found the permanent ordinance was a safety measure insulated from a taking claim. The holding as to the permanent ordinance is also consistent with other views of floodplain regulations. See JUERGENSMEYER & ROBERTS, supra note 7, § 11.15D.

Also, the holding falls within the theory espoused by Chief Justice Rehnquist who, in First English, had said that where a government denies all use of land it might avoid paying compensation by showing that "the denial of all use was insulated as a part of the State's authority to enact safety regulations." 482 U.S. at 313, 17 ELR at 20789. This seems to be the precursor to the holding in Lucas that a state can avoid paying compensation for the denial of all economically viable use if it can show that the denial is supported by background principles of state property or nuisance law.

31. 493 U.S. 1056 (1990).

32. Rather amazingly, in 1997, 10 years after First English, the Eleventh Circuit Court of Appeals erroneously said that First English "held that the [Los Angeles] ordinance effected a temporary taking, requiring the county to pay fair value for the use of the property during that time period." Cornv. City of Lauderdale Lakes, 95 F.3d 1066, 1073 n.4 (11th Cir. 1997). To similar effect, see Florida v. Mid-Florida Growers, Inc., 541 So. 2d 1243, 1251 (Fla. App. 1989). As noted, the Court did not find a taking in First English. It remanded the case to the California state court, which found no taking. The U.S. Supreme Court then denied certiorari. 493 U.S. at 1056. No compensation was paid to the church.

33. 482 U.S. at 321, 17 ELR at 20791.

34. See supra notes 28-31 and accompanying text.

35. The church would have sued claiming the restriction was a taking and asked for compensation, the state court would have dismissed the claim on the basis that compensation was not a recognized remedy, and the U.S. Supreme Court would have held the remedy inadequate and remanded the case. The Court's "temporary taking" language would still apply. If, on the merits, the Court found the permanent ordinance a taking, the county could choose to keep it in effect and pay permanent damages or it could lift the ordinance and pay for the temporary loss of use. It is likely that the Court saw the case this way. By the time the case reached the Court in 1987, the interim ordinance had been converted into a permanent ordinance, so that from the Court's perspective it was looking at what was a permanent ordinance, which it assumed denied all use.

36. 450 U.S. 621, 11 ELR 20345 (1981).

37. Id. at 657, 11 ELR at 20354. Justice Brennan observed that "the fact that a regulatory 'taking' may be temporary, by virtue of the government's power to rescind or amend the regulation, does not make it any less of a constitutional 'taking,'" id., and that:

The constitutional rule I propose requires that, once a court finds a police power regulation has effected a "taking," the government entity must pay just compensation for the period commencing on the date the regulation first effected the "taking," and ending on the date the government entity chooses to rescind or otherwise amend the regulation.

450 U.S. at 658, 11 ELR at 20354.

38. Norman Williams et al., The White River Junction Manifesto, 9 VT. L. REV. 193, 218 (1984).

39. 450 U.S. at 657, 11 ELR at 20354.

40. 482 U.S. at 321, 17 ELR at 20791.

41. Id. at 313, 17 ELR at 20789.

$=S

42. Here we must assume that the Los Angeles County ordinances have denied appellant all use of its property for a considerable period of years, and we hold that invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy. The judgment of the California Court of Appeals is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

482 U.S. at 321, 17 ELR at 20791 (emphasis added). The Court also noted that six years had passed from the ordinance's enactment until the state supreme court heard the case, 482 U.S. at 319, 17 ELR at 20291, indicating that it was the time of litigation that mattered, not the time of the freeze.

43. Robert V. Percival, Environmental Law in the Supreme Court: Highlights From the Marshall Papers, 23 ELR 10606, 10619 (Oct. 1993).

44. 482 U.S. at 310, 17 ELR at 20788 (emphasis added).

45. 505 U.S. at 1019, 22 ELR at 21108 (emphasis in original).

46. Id. at 1017, 1018, 22 ELR at 21108 (emphasis in original).

47. Id. at 1017, 22 ELR at 21108. In Keshbro, Inc. v. City of Miami, 2001 WL 776555, the Florida Supreme Court found nuisance abatement orders barring the use of property for periods of six months to one year could be temporary takings under Lucas. The court said the total deprivation of economically beneficial use triggered the categorical rule and, ignoring the "rare" admonition of the Court in Lucas, refused to consider the value of future use.

48. Lucas, 505 U.S. at 1016 n.7, 22 ELR at 21107 n.7.

49. Id.

50. Professor Eagle and I agree that Chief Justice Rehnquist's "normal delay" language would be better put as "reasonable delay." Eagle, supra note 5, at 10227. Literal application of the language would mean a town that normally takes six years to process a variance request would not be guilty of a taking. And, a town that enacts a two-month freeze on development because of an unexpected, abnormal breakdown in its sewage disposal system automatically has taken an owner's "right to use" land for those two months. It is difficult to believe that the Chief Justice would condone the former irresponsible, albeit normal, actions of the slow moving town or that he would condemn the latter efforts of a town to study and remedy an unanticipated sewage system problem by finding a per se taking of the loss of use for two months.

51. The segmentation issue refers to the denominator in the "deprivation fraction" by which a court decides whether a regulation has gone too far. As the Court said in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978), "takings jurisprudence does not divide a single parcel into discrete segments." Id. at 130, 8 ELR at 20534. While much has changed in takings law since the 1978 Penn Central decision, the Court has reaffirmed the nonsegmentation rule in a number of settings. See Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602 (1993); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 17 ELR 20440 (1987); Andrus v. Allard, 444 U.S. 51, 9 ELR 20791 (1979). See generally JUERGENSMEYER & ROBERTS, supra note 7, at 441.

52. See JUERGENSMEYER & ROBERTS, supra note 7, at 442.

53. 482 U.S. at 321, 17 ELR at 20791.

54. 447 U.S. 255, 10 ELR 20361 (1980).

55. 482 U.S. at 320, 17 ELR at 20791. See also Landgate, Inc. v. California Coastal Comm'n, 953 P.2d 1188, 73 Cal. Rptr. 2d 841, cert. denied, 528 U.S. 876 (1998) (two-year delay occasioned by a bona fide dispute over agency's jurisdictional authority over lot line adjustment is not a taking).

56. See Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478 (D.N.M. 1995) (two-year and six-month delay not a taking); Dufau v. United States, 22 Cl. Ct. 156, 21 ELR 20814 (1990), aff'd without opinion, 940 F.2d 677 (Fed. Cir. 1991) (16-month delay not a taking); Williams v. City of Cent., 907 P.2d 701 (Colo. App. 1995) (10-month delay not a taking); Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (Minn. App. 1992), cert. denied, 508 U.S. 960 (1993) (two-year delay not a taking); McCutchan Estates Corp. v. Evansville Vanderburgh County Airport Auth. Dist., 580 N.E.2d 339 (Ind. App. 1991), cert. denied, 488 U.S. 823 (1988) (nine-month delay not a taking); Guinnane v. City & County of San Francisco, 197 Cal. App. 3d 862, 241 Cal. Rptr. 787 (1987), cert. denied, 488 U.S. 823 (1988) (one-year and five-month delay not a taking).

57. Tahoe-Sierra Preservation Council v. Tahoe Reg'l Planning Agency, 34 F. Supp. 2d 1226, 1250, 29 ELR 21290, 21300 (D. Nev. 1999).

58. Id.

59. See JUERGENSMEYER & ROBERTS, supra note 7, §§ 9.5, 10.9C.

60. Tahoe-Sierra, 228 F.3d at 1001.

61. As Professor Eagle more delicately puts it. Eagle, supra note 5, at 10226.

62. The Ninth Circuit's language reads as follows:

In other words, for purposes of determining whether a "taking" of the plaintiffs' "property" has occurred, the proper inquiry is what constitutes the relevant "property"? . . . Property interests may have many different dimensions. For example, the dimensions of a property interest may include a physical dimension (which describes the size and shape of the property in question), a functional dimension (which describes the extent to which an owner may use or dispose of the property in question), and a temporal dimension (which describes the duration of the property interest). At base, the plaintiffs' argument is that we should conceptually sever each plaintiff's fee interest into discrete segments in at least one of these dimensions—the temporal one—and treat each of those segments as separate and distinct property interests for purposes of takings analysis. Under this theory, they argue that there was a categorical taking of one of those temporal segments.

Tahoe-Sierra, 216 F.3d at 774, 30 ELR at 20641.

63. First English, 482 U.S. at 330, 17 ELR at 20793-94 (Stevens, J., dissenting).

64. 228 F.3d at 999 (emphasis in original). This is also the claim levied by the landowners in the first question presented in their petition for certiorari.

65. 216 F.3d at 777.

66. Id. at 782, 30 ELR at 20644.

67. The Ninth Circuit is in accord with Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 24 ELR 20169 (Fed. Cir. 1993), the chief case upon which the landowners rely in their petition for certiorari to assert a conflict. The Federal Circuit in Tabb Lakes did say, as the landowners' petition for certiorari notes, that "'a taking, even for a day, without compensation is prohibited by the Constitution.'" Petition for Certiorari, at 21 (quoting Tabb Lakes). But, the entire sentence from which that quote is taken and the sentence that follows read: "We agree in theory with the plaintiff that a taking, even for a day, without compensation is prohibited by the Constitution. However, the question here is, 'Was there a taking?'" Id. at 800 (emphasis added). The court went on to find that the plaintiffs' inability to proceed with its development due to the U.S. Army Corps of Engineers' (the Corps') assertion of jurisdiction over it for three years and two months (date of assertion of jurisdiction to date when a court held the Corps lacked authority over the property owner) was not a taking. The delay was reasonable, and, the court said that in the context of a challenge to a temporary restraint, only unreasonable delay can give rise to a taking. Id. at 803.

68. 216 F.3d at 781, 30 ELR at 20644.

69. Eagle, supra note 5, at 10227.

70. Petition for Certiorari, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, at 26.

71. 526 U.S. 687, 29 ELR 21133 (1999).

72. See Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001) (O, Connor, J., concurring).

73. See cases cited supra note 32.

74. Eagle, supra note 5, at 10227.

75. Except in its "normal delay" dicta, but that cuts against the idea that a moratorium would be a taking. See supra note 51 and accompanying text.