Development Moratoria, First English Principles, and Regulatory Takings

Steven J. Eagle

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

[31 ELR 11232]

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

In an earlier issue of the Environmental Law Reporter (ELR),⁶ I asserted that development moratoria that deprive landowners of all economic use constitute compensable regulatory takings unless stringently circumscribed. I also criticized the Ninth Circuit panel decision in Tahoe-Sierra. In a defense of that decision in a more recent issue of ELR,⁷ Prof. Thomas E. Roberts raised some important questions to which I now respond. He contended that I, and others generally sharing my view,⁸ relied on statements taken "out of context"⁹ from First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,¹⁰ and from Lucas v. South Carolina Coastal Council.¹¹ Roberts added:

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.¹²

The issue of whether a moratorium constitutes a taking was not directly before the Court in First English or Lucas. In the absence of definitive precedent, determining what "is already the law" in this area, as in others, depends upon how one interprets the U.S. Constitution and "the dicta and spirit" of relevant Supreme Court cases. I attempt to demonstrate in this Dialogue that my interpretation is preferable to that of Professor Roberts.

At the end of his article, Roberts took me to task for suggesting that the issue in Tahoe-Sierra is "whether the moratorium works a taking under First English principles."¹³ He contended: "This cannot be so because First English did not contain principles that address when a taking occurs. It only says what remedy is provided once a taking is found."¹⁴ In this view he is joined by the California Court of Appeals, which declared on remand that "the United States Supreme Court in First English made it abundantly clear the Court was deciding the remedies issue—and only that issue."¹⁵

The Court in First English did not, of course, determine the facts in that case, nor whether they gave rise to a compensable taking. But that does not mean that First English spoke only of remedies. In the course of framing the appropriate remedy, First English said much about what constitutes a temporary taking. And it was the principles underlying those statements to which I referred.

First English Principles

There are four basic principles that I extract from First English¹⁶ and that inform my view of Tahoe-Sierra and development [31 ELR 11233] moratoria. They are the (1) applicability of established regulatory takings jurisprudence, (2) remedy of just compensation, (3) vindication of temporal segmentation, and (4) limitation of "normal delays" to those reasonably necessary in the narrow context of applying established rules to the specific development application. Each is discussed in turn.

Established Regulatory Takings Principles Apply to Temporary Takings

Writing for the Court in First English, Chief Justice William H. Rehnquist summarized the general principles of its regulatory takings jurisprudence and implicitly held them applicable to temporary takings. He reiterated the Fifth Amendment admonitions that "'private property [shall not] be taken for public use, without just compensation'"¹⁷; "government action that works a taking of property rights necessarily implicates the 'constitutional obligation to pay just compensation'"¹⁸; and, as Justice Oliver W. Holmes declared in Pennsylvania Coal Co. v. Mahon,¹⁹ "'the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.'"²⁰

It is true, as Professor Roberts stated, that in quoting Justice Holmes the Court in First English "rather quickly dispensed with the argument that regulatory takings were not true takings."²¹ But the Court's failure to rehearse this point seems instead indicative of its view of the matter as settled.²²

Just Compensation Is the Constitutionally Mandated Remedy for a Temporary Taking

In Agins v. City of Tiburon,²³ the California Supreme Court held that invalidation was a sufficient remedy for excessive regulation. In rejecting this approach in First English, the Supreme Court concluded: "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 for the period during which the taking was effective."²⁴

While Professor Roberts maintained that this holding is all that First English did,²⁵ it is but the beginning of my analysis.

First English Affirmed Temporal Segmentation

The Supreme Court did say in dictum in Penn Central Transportation Co. v. City of New York²⁶ that takings law must view the "parcel as a whole."²⁷ Nevertheless, the Court never has rejected severance as a legitimate form of analysis in regulatory takings cases. Indeed, in its most recent takings case, Palazzolo v. Rhode Island,²⁸ the Court carefully suggested that the "relevant parcel" issue was still very much unsettled.²⁹ Indeed, the Court itself has condemned extravagant application of the "parcel as a whole" dictum,³⁰ and lower courts have taken pains to discern how much of a landowner's original parcel should be treated as the "relevant parcel" for the purpose of takings analysis.³¹

While most of the cases have considered physical segmentation of a parcel, some have dealt with temporal segmentation. The Supreme Court upheld temporal segmentation in several earlier cases. A key aspect of First English is its affirmation of the fact that a temporal interest could be treated as the relevant unit of ownership.

The Court has ruled that just compensation must be paid when government takes a leasehold interest in a parcel. The leading cases are United States v. Dow,³² United States v. General Motors Corp.,³³ and Kimball Laundry Co. v. United States.³⁴ In each, the federal government occupied private commercial buildings during World War II for periods which initially were fixed, although subsequently extended. In First English, the Court analyzed the wartime cases in the following terms:

Though the takings were in fact "temporary," there was no question that compensation would be required for the Government's interference with the use of the property; the Court was concerned in each case with determining the proper measure of the monetary relief to which the property holders were entitled.

These cases reflect the fact that "temporary" takings which, as here, deny a landowner all use of his property, are not different in kind from permanent [31 ELR 11234] takings, for which the Constitution clearly requires compensation.³⁵

As Professor Roberts noted,³⁶ the government did not contest its liability in those cases. However, he provided no support for any inference that such liability is a contestable issue. Roberts added that the wartime cases and First English are consistent in that they stand for the proposition that "once a taking is found, the government cannot retroactively erase what it has done to avoid payment."³⁷ That is true, but what the government "has done" in both First English and in the World War II cases was deprive the owner of the use of land for a temporal segment. Furthermore, the Court accepted that segment as constituting the "denominator" of the "takings fraction" for purposes of takings analysis.³⁸

Temporal segmentation of the underlying fee also is present when the claimant owns only a leasehold interest. In Eastern Minerals International, Inc. v. United States,³⁹ the U.S. Court of Federal Claims held that the government's failure to review an application for a mining permit in timely fashion constituted a compensable taking of the entire leasehold interest. Just as First English reiterated that "temporary" takings are as compensable as "permanent" takings, Eastern Minerals asserted that regulatory takings of temporal interests are as compensable as physical takings of such interests.

The very notion of a "temporary" taking, an example of temporal segmentation, qualifies the Supreme Court's "parcel as a whole" dictum.⁴⁰ Justice John Paul Stevens' objection to temporal segmentation was reflected in his dissent in First English.⁴¹ There, he asserted that "regulations are three dimensional," and that the amount of property affected, the intensity of the restrictions, and the duration of the restrictions all should be considered within the ad hoc balancing test.⁴²

This same argument, repeated closely (albeit without attribution), is the backbone of the Ninth Circuit panel's ruling in Tahoe-Sierra. Perhaps the reason there is no attribution is because Justice Stevens' dissent is just that, a dissent.⁴³

Excused Delays Are Limited to Obtaining Permits Under Existing Regulations

Given the First English Court's confirmation of temporal segmentation, it follows that the general principle is that the deprivation of the economically beneficial use of any temporal segment constitutes a compensable taking. However, a threshold or de minimis exception might reasonably apply. In the case of physical takings, for instance, Judge S. Jay Plager has distinguished "governmental activities which involve an occupancy that is transient and relatively inconsequential, and thus properly can be viewed as no more than a common law trespass."⁴⁴

Chief Justice Rehnquist's language in First English might best be understood as carving out from the general rule that temporary deprivations are compensable an exception where the deprivation is transient and relatively inconsequential:

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. We realize that even our present holding will undoubtedly lessen to some extent the freedom and flexibility of land-use planners and governing bodies of municipal corporations when enacting land-use regulations. But such consequences necessarily flow from any decision up-holding a claim of constitutional right; many of the provisions of the Constitution are designed to limit the flexibility and freedom of governmental authorities, and the Just Compensation Clause of the Fifth Amendment is one of them. As Justice Holmes aptly noted more than 50 years ago, "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."⁴⁵

Professor Roberts quoted the first two sentences of this paragraph and observed that the Court "does not differentiate between interim and permanent ordinances."⁴⁶ This is correct, but begs the question of whether there ought to be such a differentiation. The balance of the paragraph makes the crucial point that the Court was well aware that its holding would detract from the flexibility enjoyed by planners. Such flexibility might be particularly useful in the widescope and long-range planning sometimes associated with moratoria. But, to paraphrase Justice William J. Brennan, the Constitution deprives the police of flexibility, too.⁴⁷

It is important to note that Chief Justice Rehnquist, writing for the Court in First English, did not refer to "questions [31 ELR 11235] that would arise in the case of normal delays in land use regulation," or "normal delays in the planning process." Instead, he used the phrase "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like." The strong implication here is that the exception for "normal delays" is a narrow one. It implicitly seems to apply to (1) the attempt by an owner, (2) with respect to his or her parcel, to (3) obtain relief clearly contemplated by existing procedures for administrative discretion or ordinance modifications.

A contrary view was articulated in the First English dissent of Justice Stevens:

The Court's analysis . . . appears to erect an artificial distinction between "normal delays" and the delays involved in obtaining a court declaration that the regulation constitutes a taking. . . . Litigation challenging the validity of a land use restriction gives rise to a delay that is just as "normal" as an administrative procedure seeking a variance or an approval of a controversial plan.⁴⁸

The wisdom of interpreting "normal delays" narrowly is illustrated by the California Supreme Court's broad approach in Landgate, Inc., v. California Coastal Commission.⁴⁹ Landgate's predecessor in interest owned two long, narrow lots, running north-south. By agreement, the County of Los Angeles constructed an east-west road that bisected the two parcels, and, in exchange, agreed to a lot line adjustment so that the land south of the road became one parcel and the land north of it became the other. The County obtained Commission approval for the road, but not for the adjustment.⁵⁰ After Landgate purchased the northern parcel it applied for a development permit to construct a house. The Commission denied it, asserting, inter alia, that the lot line "adjustment" constituted a lot "split," for which its consent was required. Thus, it maintained, Landgate owned an illegal lot.⁵¹

The County had not sought Commission approval for previous lot line adjustments.⁵² According to one member of the Commission, this had happened "many times,"⁵³ and it became "really time to become extremely serious about this."⁵⁴ The Court of Appeal opined that it was because of this "jurisdictional spat" that the landowner was left with no use of its land until it had obtained Commission consent subsequent to a court ruling in its favor.⁵⁵ It asserted that the loss of economically beneficial use of the land during that two-year period constituted a temporary taking.

The California Supreme Court held that there was no basis for the Court of Appeal's characterization of motive,⁵⁶ and that the litigation leading to the writ of mandate constituted a "normal delay" under First English.⁵⁷ "Spats" and motivation aside, the state supreme court did not attempt to characterize the litigation as resulting from a dispute over the application of a settled jurisdictional principle to a specific parcel.

Justice Ming W. Chin, dissenting in Landgate, noted that the majority's argument was the same as in Justice Stevens' dissent in First English, and that "the Commission's total and final ban on all use of Landgate's property (which existed during the litigation delay) gave rise to the temporary taking. As long as that total ban was in effect, the temporary taking continued."⁵⁸

Adjudication of the jurisdiction of the Coastal Commission through three levels of state courts may have been reasonable, may have constituted a public good, and may have been "normal" with respect to the function of the judiciary. It is not, however, "normal" with respect to a permit application for a single-family house.

Professor Roberts stated agreement with my earlier observation that Chief Justice Rehnquist's use of the term "normal delay" in First English "would be better put as 'reasonable delay.'"⁵⁹ He added that the "import of the 'normal delay' language . . . is that property owners must bear delay occasioned by reasonable governmental decisionmaking processes,"⁶⁰ although adherence to a customary, i.e., "normal," municipal practice does not shield the locality from takings liability if that normal practice is unreasonable.⁶¹

However, the terms "reasonable delay" and "reasonable governmental decisionmaking processes" have two distinct meanings in this context. Compensation to property owners might not be required under one, but might still be required under the other.

"Reasonableness" must be analyzed separately under the first prong of the Agins test,⁶² and under the "normal delay" requirement of First English.⁶³ A practice might be "reasonable" under Agins in the sense of substantially advancing the public good, and therefore not trigger the requirement for compensation under that standard. At the same time, the regulation might be "unreasonable" in the sense that the scope of government review goes substantially beyond the issues customarily arising, i.e., "normal," in the consideration of a development application for a given house on a single lot. In Landgate, for instance, uncertainty with respect to the scope of the Coastal Commission's authority appears to have caused festering problems. Clarification of the Commission's authority might indeed have benefitted the public at large. But that is different from saying that extensive adjudication of that authority was reasonable in the context of development of a single home, or that it was just that Landgate alone should bear the burden of providing the public good.⁶⁴

[31 ELR 11236]

Thus, a court's review should not consider an owner's claim for compensation primarily from the perspective of whether a moratorium is "reasonable" with respect to extensive land use studies that an ordinance might contemplate. An affirmative answer addresses only the Agins requirement for "substantial advancement." It also is necessary that the moratorium fit within the exclusion from the takings requirement under the "normal delay" test of First English. Here, the court might be guided by the fact that legislatures that have considered the matter generally have found a short period of time both appropriate and sufficient for review of a development application.⁶⁵

An excellent example of confusioin of the two concepts is the complaint in Judge Stephen Reinhardt's panel decision in Tahoe-Sierra that a compensation requirement for moratoria would "penalize local communities for attempting to protect the public interest."⁶⁶ Yet the Court had observed in First English that "otherwise proper" governmental action could constitute a taking.⁶⁷ As Justice Anthony M. Kennedy explained in a similar context, the Takings Clause "presupposes what the Government intends to do is otherwise constitutional."⁶⁸

A Comment on "Invalidation"

Given the view of the California Court of Appeals⁶⁹ and Professor Roberts that First English "merely resolved the compensation versus invalidation debate,"⁷⁰ it is useful to consider further "invalidation" as a remedy. Even as he notes that courts have fallen into the trap of assuming incorrectly that First English invalidated a regulation or found a compensable taking,⁷¹ Roberts admits that the First English Court itself was confused.⁷²

On two occasions the First English Court spoke of an "invalidated" ordinance. This is technically wrong. The Fifth Amendment does not proscribe the taking of property for a public purpose. It conditions the taking upon the payment of compensation. . . . 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."⁷³

The First English use of "invalidated" was incorrect, but the problem is more than technical. It is helpful to begin with Professor Roberts' passive grammatical usage, whereby regulations are "converted" into takings. "Converted" by whom? Judicial determinations subordinating form to substance do not "convert" the essential nature of the underlying acts, they only reveal them.

When the California Supreme Court spoke of "excessive" regulation in Agins,⁷⁴ it left ambiguous whether it was referring to the regulation that crossed the boundary between lawful regulation and arbitrary or capricious regulation, or whether it crossed the boundary between regulation protecting the public from harm or regulation providing public benefits. The harm to the landowner subject to "excessive" regulation should be rectified through damages in the first case and through just compensation in the second.

In practice (although not in theory), "excessive" regulation might have a third meaning—one less grounded in basic legal principle. That meaning might be no more than a sympathy within the judiciary for comprehensive regulation that attempted to operate at the outer limit of the police power, but which, alas, went clearly out of bounds.

It is instructive to juxtapose the California Supreme Court's evaluations of the role of the regulators' intent in Agins⁷⁵ and Landgate.⁷⁶ In the latter case, the court rejected the importance of intent: "The proper inquiry is not into the subjective motive of the government agency, but whether there is, objectively, sufficient connection between the land use regulation in question and a legitimate governmental purpose so that the former may be said to substantially advance the latter."⁷⁷ In Agins, on the other hand, the court appeared less concerned with the objective determination of what the legislature did than with whether its acts were "unanticipated"⁷⁸ or "inadvertent."⁷⁹

The Supreme Court's analysis in First English found that a regulation which worked a taking results in the obligation to pay just compensation for the time the regulation is in effect. However, it affirmed earlier holdings that "government may elect to abandon its intrusion or discontinue regulations."⁸⁰ Here, too, we find the issue of conversion. How does a (completed) taking of property become "discontinued" after the fact?⁸¹ Perhaps an indication lies in the fact that, even while requiring compensation for pre-adjudication deprivations, the Court added its sympathy for the importance of planners' "flexibility."⁸² Through its holding [31 ELR 11237] that "the landowner has no right under the Just Compensation Clause to insist that a 'temporary' taking be deemed a permanent taking,"⁸³ it assuaged the California Supreme Court's concern that a landowner could "force" a taking.⁸⁴

Applying First English Principles to Land Use Moratoria

Tahoe-Sierra is a case with a long and complex history.⁸⁵ The development moratorium immediately under review was one of a series of measures by which the Tahoe Regional Planning Agency (TRPA) was able to block the construction of vacation or retirement homes around Lake Tahoe, a pristine alpine lake, for over 20 years.⁸⁶

The present appeal resulted from the U.S. district court's finding that ordinances imposing development moratoria for certain periods "were facially invalid because they constituted a categorical taking of the plaintiffs' property, and that [the] TRPA is therefore liable under § 1983 for violating the plaintiffs' Fifth Amendment rights . . . ."⁸⁷ The Ninth Circuit reversed on the grounds that the "First English Court very carefully defined '"temporary" regulatory takings [as] those regulatory takings which are ultimately invalidated by the courts.' . . . The Court's definition, therefore, does not comprehend temporary moratoria, which from the outset are designed to last for only a limited period of time."⁸⁸ The Supreme Court granted certiorari, limited to the question: "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 [U.S.] Constitution."⁸⁹

Can a Development Moratorium Never Be a Taking?

In his opinion for the Ninth Circuit panel in Tahoe-Sierra, Judge Reinhardt ostensibly 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, we might be compelled to conclude that a categorical taking had occurred."⁹⁰ The significance of this statement depends upon what is meant by "all" and what is meant by "temporary."

In his dissent from the Ninth Circuit's refusal to review the case en banc, Judge Kozinski took Judge Reinhardt's statement to mean that "a temporary regulation can never be a regulatory taking."⁹¹ While Professor Roberts wrote that Judge Kozinski "misreads what the court did,"⁹² Kozinski's statement is literally accurate. "Present value" is the value at a given time of future net income streams, discounted by their probability and by an appropriate interest rate.⁹³ Income to be received in the future is worth less now than is cash in hand. Income to be received in the distant future is worth much less. As the time until beneficial use may be allowed increases, the present value of that beneficial use approaches zero, but never exactly reaches it. As time goes on, changing facts and sensibilities might make the possibility of ever obtaining a development permit more problematic. This, too, must be factored into present value. If Judge Reinhardt intends, as his words mean, that only a perpetual moratorium is compensable, he makes no "concession" at all.

It might be useful to lend a practical cast to Judge Reinhardt's statement. Judge Francis M. Allegra of the Court of Federal Claims recently surveyed partial takings cases in Walcek v. United States,⁹⁴ and concluded that "dimunitions [sic] in value approaching 85 to 90[%] do not necessarily dictate the existence of a taking."⁹⁵ Treating as representative of the dividing line the finding that a diminution of 88% of value constituted a taking in Formanek v. United States,⁹⁶ and assuming an interest rate of 6%, a moratorium would have to exceed 36 years before it would be deemed a taking under a Walcek rule of thumb.

Thirty-six years is a long time for a "temporary" restriction, and that raises the issue of when "temporary" takings become "permanent" for takings purposes. As the U.S. Court of Appeals for the Federal Circuit noted in Hendler v. United States,⁹⁷ "'permanent' does not mean forever, or anything like it. A taking can be for a limited term. . . ."⁹⁸ As Judge Plager put it: "The distinction between the government vehicle parked one day on O's land while the driver eats lunch, on the one hand, and the entry on O's land by the government for the purpose of establishing a long term storage lot for vehicles and equipment, on the other, is clear enough."⁹⁹ Alas, the distinction between "permanent" and "temporary" as it pertains to moratoria is not clear enough. The U.S. district court in Tahoe-Sierra deemed very significant the fact that at least some moratoria provisions had no fixed termination date.¹⁰⁰ In any event, even the presence of such a deadline does not mean that another moratorium would not follow.

Might "Temporary" Moratoria Be Abused?

In my earlier article, I expressed concern that, under the Tahoe-Sierra panel view, "one 'temporary' regulatory barrier could be crafted after another, with no individual regulation [31 ELR 11238] being deemed a taking."¹⁰¹ Professor Roberts responded: "City of Monterey v. Del Monte Dunes at Monterey, Ltd. makes it clear that abuses such as these are cognizable in as applied challenges."¹⁰² Roberts is correct, but there is an immense difference between abuses being "cognizable" and abuses being prevented or rectified.

In the aftermath of the Supreme Court's opinion, the view that the city of Monterey did not deal fairly with Del Monte Dunes has become pervasive.¹⁰³ The Ninth Circuit determined that to require the landowner to make yet additional proposals to the city "would implicate . . . concerns about repetitive and unfair procedures."¹⁰⁴ Yet the U.S. district court initially hearing the case had dismissed it as unripe, in part because the landowner had not "obtained a definitive decision as to the development the city would allow."¹⁰⁵ In any event, Del Monte Dunes was adjudicated through the federal system only because California had not provided a compensation remedy for regulatory takings when the city's actions took place.¹⁰⁶

Since the Supreme Court's decision in First English established the need for a compensation remedy in the courts of every state, landowners like Del Monte Dunes have no recourse to the federal courts until they comply with the "final decision" and "state denial of compensation" prongs of the Court's Williamson County Regional Planning Commission v. Hamilton Bank¹⁰⁷ ripeness rules. These constitute "a special ripeness doctrine applicable only to constitutional property rights claims."¹⁰⁸ If anything, the "final decision" prong of Williamson County feeds the abuse evident in Del Monte Dunes, since municipalities have every incentive to string owners along and avoid outright denials. Governmental "stalling is often the functional equivalent of winning on the merits."¹⁰⁹ A survey of federal land use takings cases during the period 1990-1998 concluded that

the vast majority of takings cases are dismissed on jurisdictional grounds such as ripeness or abstention. . . . Moreover, the minority of takings cases that overcome ripeness hurdles exact a considerable cost on financial and judicial resources, and require many years of duplicative and expensive litigation before a judge even reaches the merits.¹¹⁰

All of this indicates that abuse of the moratoria process would be corrected only infrequently.

Indeed, Tahoe-Sierra itself is an example of how agencies mix "temporary" moratoria and informal freezes on development approvals. Owners have been unable to use their lands since 1981.¹¹¹

This raises the question of why the line between "temporary" and "permanent" moratoria should be of constitutional significance at all.

I do not assert that development moratoria always should constitute takings. Moratoria directed at narrow problems affecting specific parcels might be consistent with the threshold test of "normal delay" in First English.¹¹² On the other hand, more ambitious moratoria might be reasonable and justifiable under Agins but nevertheless require compensation under First English.

As the Supreme Court stated in First English, "'temporary' takings which . . . deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation."¹¹³

1. 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. 2589 (June 29, 2001) (No. 00-1167).

2. 228 F.3d at 998.

3. Id. at 999 (Kozinski, J., dissenting from denial of request for rehearing en banc, joined by O'Scannlain, Trott, T.G. Nelson, and Kleinfeld, JJ.).

4. 121 S. Ct. at 2589.

5. Id. at 2589-90.

6. Steven J. Eagle, Temporary Regulatory Takings and Development Moratoria: The Murky View From Lake Tahoe, 31 ELR 10224 (Feb. 2001).

7. Thomas E. Roberts, Moratoria as Categorical Regulatory Takings: What First English and Lucas Say and Don't Say, 31 ELR 11037 (Sept. 2001).

8. Id. at 11037 n.5 (citing Michael M. Berger, Temporary Takings: The Ninth Circuit Wrongly Circumvents Fifth Amendment Compensation Requirement, L.A. DAILY J., Aug. 4, 2000; Tahoe-Sierra, 228 F.3d at 998 (Kozinski, J., dissenting from denial of request for rehearing en banc, joined by O'Scannlain, Trott, T.G. Nelson, and Kleinfeld, JJ.).

9. Id. at 11038, 11041.

10. 482 U.S. 304, 17 ELR 20787 (1987).

11. 505 U.S. 1003, 22 ELR 21104 (1992).

12. Roberts, supra note 7, at 11037.

13. Id. at 11044 (quoting Eagle, supra note 6, at 10227).

14. Id. A footnote excepting the "normal delay" dicta is omitted. That issue is discussed infra.

15. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 258 Cal. Rptr. 893, 897, 19 ELR 21329, 21330 (Cal. Ct. App. 1989).

16. 482 U.S. at 304, 17 ELR at 20787.

17. Id. at 314, 17 ELR at 20789.

18. Id. (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).

19. 260 U.S. 393 (1922).

20. Id. (quoting Pennsylvania Coal, 260 U.S. at 415).

21. Roberts, supra note 7, at 11039. Roberts added that the Court also did not reexamine whether its regulatory takings jurisprudence was based on Fourteenth Amendment substantive due process or on Fifth Amendment takings principles. Id. I agree that such a reexamination is highly desirable, although there is substantial overlap between the provisions. See generally Steven J. Eagle, Substantive Due Process and Regulatory Takings: A Reappraisal, 51 ALA. L. REV. 977 (2000). Even under due process analysis, however, invalidation does not alleviate the landowner's entitlement to monetary damages.

22. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 384 n.5, 24 ELR 21083, 21085 n.5 (1994) (brusquely stating Fifth Amendment Takings Clause incorporated into Fourteenth Amendment in Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897)). Justice Stevens had asserted that Chicago, B. & Q. was a due process case. Dolan, 512 U.S. at 396, 24 ELR at 21091 (Stevens, J., dissenting). See also Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2457 (2001) (reiterating the Dolan majority formulation).

23. 598 P.2d 25, 9 ELR 20260 (Cal. 1979), aff'd on other grounds, 447 U.S. 255, 10 ELR 20361 (1980).

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

25. Roberts, supra note 7, at 11039.

26. 438 U.S. 104, 8 ELR 20528 (1978).

27. Id. at 130-31, 8 ELR at 20534.

28. 121 S. Ct. 2448 (2001).

29. Id. at 2465 (noting that the Court has "at times expressed discomfort with the logic of [the parcel as a whole] rule").

30. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 n.7, 22 ELR 21104, 21107 n.7 (1992) (deeming the New York Court of Appeals' determination that the relevant parcel in Penn Central included the total value of the claimant's other holdings in the vicinity of the terminal to be "extreme—and, we think, unsupportable," and citing Penn Cent. Transp. Co. v. City of New York, 366 N.E.2d 1271, 7 ELR 20579 (N.Y. 1977), aff'd, 438 U.S. 104, 8 ELR 20528 (1978)).

31. See, e.g., Deltona Corp. v. United States, 657 F.2d 1184, 11 ELR 20905 (Cl. Ct. 1981); Loveladies Harbor v. United States, 28 F.3d 1171, 24 ELR 21072 (Fed. Cir. 1994); Palm Beach Isles Assocs. v. United States, 208 F.3d 1374, 30 ELR 20481 (Fed. Cir. 2000).

32. 357 U.S. 17 (1958).

33. 323 U.S. 373 (1945).

34. 338 U.S. 1 (1949).

35. First English, 482 U.S. at 318-19, 17 ELR at 20791 (internal citations omitted).

36. Roberts, supra note 7, at 11040.

37. Id.

38. The "numerator" in the "takings fraction" represents the value of the rights of which the owner has been deprived. The "denominator" represents the value of the relevant parcel. See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 17 ELR 20440 (1987).

39. 36 Fed. Cl. 541 (Fed. Cl. 1996).

40. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 131, 8 ELR 20528, 20534 (1978).

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

42. Id.

43. See Tahoe-Sierra, 228 F.3d at 998 (denying en banc review). Of course, the panel doesn't admit that its opinion aligns itself with Justice Stevens' dissent, so it must pretend First English said nothing relevant to this case. And so the panel does, claiming that First English does not address whether a temporary moratorium is a taking, because it was "not even a case about what constitutes a taking." Id. at 1002 (Kozinski, J., dissenting) (quoting Tahoe-Sierra, 216 F.3d at 777, 30 ELR at 20642).

44. Hendler v. United States, 952 F.2d 1364, 1377, 22 ELR 20646, 20651 (Fed. Cir. 1991).

45. First English, 482 U.S. at 321-22, 17 ELR at 20791 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (emphasis added).

46. Roberts, supra note 7, at 11040.

47. See San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 661 n.26, 11 ELR 20345, 20355 n.26 (1981) (Brennan, J., dissenting) ("After all, a policeman must know the Constitution, then why not a planner?").

48. First English, 482 U.S. at 334-35, 17 ELR at 20795 (Stevens, J., dissenting).

49. 953 P.2d 1188, 28 ELR 21236 (Cal. 1998).

50. Id. at 1191, 28 ELR at 21237.

51. Id. at 1192, 28 ELR at 21237.

52. Id. at 1199, 28 ELR at 21238.

53. Id.

54. Id. at 1193, 28 ELR at 21237.

55. Id. at 1198-99, 28 ELR at 21238.

56. Id. at 1199, 28 ELR at 21238.

57. Id. at 1190, 1203-04, 28 ELR at 21237, 21241-42.

58. Id. at 1205-06, 28 ELR at 21243-44 (Chin, J., dissenting).

59. Roberts, supra note 7, at 11042 n. 50 (citing Eagle, supra note 6, at 10227).

60. Id.

61. Id.

62. 447 U.S. at 255. "The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests." Id. at 260.

63. 482 U.S. at 321.

64. See Armstrong v. United States, 364 U.S. 40 (1960). "The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Id. at 49.

65. Id. A useful guide for judicial construction of what constitutes a reasonable period for consideration of a development application is the fact that many states have permit streamlining acts that deem projects approved by operation of law if not acted upon within a specified time, typically 30 to 60 days. See generally 5 EDWARD H. ZIEGLER JR., RATHKOPF'S THE LAW OF ZONING AND PLANNING § 66.04 (4th ed. 2001).

66. Tahoe-Sierra, 216 F.3d at 782, 30 ELR at 20644.

67. First English, 482 U.S. at 315, 17 ELR at 20790.

68. Eastern Enters. v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring in the judgment and dissenting in part).

69. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 258 Cal. Rptr. 893, 19 ELR 21329 (Cal. Ct. App. 1989). See supra note 15 and accompanying text.

70. Roberts, supra note 7, at 11038.

71. Id. at 11039-40 n.32.

72. Id. at 11039.

73. Id. (internal footnotes omitted).

74. 598 P.2d at 25, 9 ELR at 20260, aff'd on other grounds, 447 U.S. at 255, 10 ELR at 20361.

75. Id.

76. 953 P.2d at 1188, 28 ELR at 21236. See supra note 52 and accompanying text.

77. Id. at 1198, 28 ELR at 21240.

78. 598 P.2d at 30, 9 ELR at 20262 (quoting favorably Barbara J. Hall, Eldridge v. City of Palo Alto: Aberration or New Direction in Land Use Law?, 28 HASTINGS L.J. 1569, 1597 (1977) (the "threat of unanticipated financial liability will intimidate legislative bodies and will discourage the implementation of strict or innovative planning measures")).

79. Id. (noting that initiative zoning might give voters the "unwelcome power to Inadvertently [sic] commit funds from the public treasury").

80. First English, 482 U.S. at 317, 17 ELR at 20790 (citing Kirby Forest Indus., Inc. v. United States, 467 U.S. 1 (1984); United States v. Dow, 357 U.S. 17, 26 (1958)).

81. See Steven J. Eagle, Just Compensation for Permanent Takings of Temporal Interests, 10 FED. CIR. B.J. 485 (2001) (concluding that a "taking," as thus defined, is a taking of the owner's rights subject to the condition subsequent that the government may unravel its earlier act—an additional attribute of the taking for which additional compensation should be required).

82. 482 U.S. at 321-22, 17 ELR at 20791.

83. Id. at 317, 17 ELR at 20790.

84. Id. at 308, 17 ELR at 20788 (quoting Agins, 598 P.2d at 29-31, 9 ELR at 20262-63).

85. See 216 F.3d at 767-68, 30 ELR at 20639-40 (noting the Ninth Circuit's three prior published decisions, lower court decisions, and other aspects of the litigation).

86. Id. The TRPA was created as a result of a bi-state compact between California and Nevada approved by Congress in 1969. The compact was amended to give it the right to adopt a new regional plan to prevent pollution of the lake and to impose temporary restrictions on development in 1980. Temporary restrictions first were imposed in August 1981. Id.

87. Id. at 771, 30 ELR at 20640.

88. Id. at 778, 30 ELR at 20643 (quoting First English, 482 U.S. at 310, 17 ELR at 20788).

89. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 121 S. Ct. 2589, 2589-90 (June 29, 2001) (No. 00-1167).

90. 216 F.3d at 781, 30 ELR at 20644 (emphasis added).

91. 228 F.3d at 999 (Kozinski, J., dissenting) (emphasis in original).

92. Roberts, supra note 7, at 11043.

93. See, e.g., RICHARD A. BREALEY & STEWART C. MYERS, PRINCIPLES OF CORPORATE FINANCE 15-19 (6th ed. 2000).

94. 49 Fed. Cl. 248 (Fed. Cl. 2001)

95. Id. at 271.

96. 26 Cl. Ct. 332, 22 ELR 20893 (Cl. Ct. 1992).

97. 952 F.2d 1364, 22 ELR 20646 (Fed. Cir. 1991).

98. Id. at 1376, 22 ELR at 20651. See also Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1583 (Fed. Cir. 1993).

99. 952 F.2d at 1371, 22 ELR at 20649.

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

101. Eagle, supra note 6, at 10227.

102. Roberts, supra note 7, at 11043 (citing City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 29 ELR 21133 (1999).

103. See, e.g., Robert H. Freilich & Jason M. Divelbiss, The Public Interest Is Vindicated: City of Monterey v. Del Monte Dunes, 31 URB. LAW. 371, 390 (1999) (quoting favorably Justice Scalia's comment at oral argument that "where you have a consistent process . . . of turning down one plan, the next plan, the next plan . . . [and] you begin to smell a rat." Oral Argument Transcript, No. 97-1235, 1998 WL 721087, at *17 (U.S. Oral. Arg.).

104. 526 U.S. at 698, 29 ELR at 21135.

105. Id.

106. See id. at 710, 29 ELR at 21138.

107. 473 U.S. 172 (1985).

108. Timothy V. Kassouni, The Ripeness Doctrine and the Judicial Relegation of Constitutionally Protected Property Rights, 29 CAL. W. L. REV. 1, 2 (1992).

109. Gregory M. Stein, Regulatory Takings and Ripeness in the Federal Courts, 48 VAND. L. REV. 1, 98 (1995).

110. John J. Delaney & Duane J. Desiderio, Who Will Clean Up the "Ripeness Mess"? A Call for Reform So Takings Plaintiffs Can Enter the Federal Courthouse, 31 URB. LAW. 195, 202 (1999).

111. See Tahoe-Sierra, 216 F.3d at 768-71, 30 ELR at 20639-40.

112. 482 U.S. at 321, 17 ELR at 20791. See supra note 45 and accompanying text.

113. Id. at 318, 17 ELR at 20790.