TAHOE SIERRA PRESERVATION COUNCIL, INC., et al., Petitioners,

v.

TAHOE REGIONAL PLANNING AGENCY, et al., Respondents.

 

No. 00-1167.

 

United States Supreme Court Petitioner's Brief.

 

October 15, 2001.

 

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

 

 BRIEF FOR PETITIONERS

 

table of contents

 

                                                                                                                  Page

 

Table of Authorities                                                                                       iii

 

preface                                                                                                                     1

 

statement of the case                                                                                    2

 

summary of argument                                                                                   10

 

 

i        the constitution requires just compensation for all takings, regardless of their length or the manner of their instigation.  thus, the issue is not whether property was taken temporarily, but whether it was taken at all.                                               12

 

a      All Takings Require Compensation.                                          14

 

b       A Seizure Of The Right To Use Property — Even Temporarily — Requires Compensation.                                                        19

 

c      First English Mandates Compensation For The Impacts Of Deliberate Planning Moratoria That — By Definition — Take The Right To Make Economically Productive Use Of Property. The Ninth Circuit Wholly Misunderstood That.                     23

table of contents (continued)

 

                                                                                                                  Page

 

ii       from a landowner's point of view, government imposition of a freeze on all economically productive uses, albeit temporarily, is the equivalent of a temporary condemnation of such land.  In either event, the rightful owner's use of the land has been taken, and just compensation is due.                                                                                                         31

 

a      "Eminent Domain" And "Police Power" Are Really Two Sides Of The Same Coin.                                                                        31

 

b       A "Police Power" Freeze On The Use Of Vacant Land And An "Eminent Domain" Taking Are Functionally — and Constitutionally — The Same.                                                    35

 

c      Good Government Intentions Do Not Vitiate The Need For Compensation — In Fact, They Reinforce It.                            37

 

D      TRPA's Conscious Decision To Prohibit The Use Of The Petitioners' Land Requires Compensation To Constitutionalize That Choice.                                                                                   42

 

e       At A Minimum, Compensation Is Due From The Time A Moratorium Has A Substantial Adverse Impact On Landowners.                                                                                  45

 

 

conclusion                                                                                                            48

 

 

Table of Authorities

 

                                                                                                                  Page

Cases

 

A.A. Profiles v. City of Fort Lauderdale,
253 F.3d 576 (11th Cir. 2001)                                                                          16

 

Agins v. City of Tiburon
24 Cal.3d 266 P.2d 25 (1979), aff'd on other grounds,
447 U.S. 255 (1980)                                                                                           25

 

American Tower, L.P. v. City of Grant,
621 N.W.2d 37 (Minn. App. 2001)                                                                27

 

Armstrong v. United States,
364 U.S. 40 (1960)                                                                                             33

 

Arverne Bay Construction Co. v. Thatcher,
278 N.Y.2d 222 (1938)                                                                                     23

 

Bass Enters. Prod. Co. v. United States,
133 F.3d 893 (Fed. Cir. 1998)                                                                          29

 

Berman v. Parker,
348 U.S. 26 (1954)                                                                                             15

 

Boston Chamber of Commerce v. Boston,
217 U.S. 189 (1910)                                                                                           9, 22

 

City of Austin v. Teague,
570 S.W.2d 389 (Tex. 1978)                                                                             35

 

City of Birmingham Planning Commn. v. Johnson Realty Co., Inc.,
688 So. 2d 871 (Ala. App. 1997)                                                                     27

 

City of Monterey v. Del Monte Dunes,
526 U.S. 687 (1999)                                                                                           22, 25, 41

 

City of Oakland v. Oakland Raiders,
174 Cal.App.3d 414                                                                                         34

Table of Authorities (continued)

 

                                                                                                                  Page

Cases

 

Cohens v. Virginia,
6 Wheat. 17 U.S. 264 (1821)                                                                            10

 

Corn v. City of Lauderdale Lakes,
95 F.3d 1066 (11th Cir. 1996)                                                                          24

 

Dames & Moore v. Regan,
453 U.S. 654 (1981)                                                                                           11, 39

 

Davis v. Newton Coal Co.,
267 U.S. 292 (1925)                                                                                           19

 

Dolan v. City of Tigard,
512 U.S. 374 (1994)                                                                                           48

 

Drakes Bay Land Co. v. United States,
424 F.2d 574 (Ct. Cl. 1970)                                                                              33

 

Eastern Minerals Int'l, Inc. v. United States,
36 Fed. Cl. 541 (1996)                                                                                      24

 

First English Evangelical Lutheran Church v. County of Los Angeles,
482 U.S. 304 (1987)                                                                                           8, 14

 

Fletcher v. Peck,
6 Cranch (10 U.S.) 87 (1810)                                                                            32

 

Florida Rock Indus., Inc. v. United States, 1
8 F.3d 1560 (Fed. Cir. 1994)                                                                            22

 

Florida Rock Products, Inc.,
45 Fed. Cl. 21 (1999)                                                                                        16

 

Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907)                                                                                           43

 

Table of Authorities (continued)

 

                                                                                                                  Page

Cases

 

Griggs v. Allegheney County,
369 U.S. 84 (1962)                                                                                             41

 

Gunthner v. Planning Board,
762 A.2d 710 (N.J.S. 2000)                                                                               27

 

Hawaii Housing Auth. v. Midkiff,
467 U.S. 229 (1984)                                                                                           34

 

Hendler v. United States,
952 F.2d 1364 (Fed. Cir. 1991)                                                                        21

 

Hughes v. Washington,
389 U.S. 290 (1967)                                                                                           19

 

Hurley v. Kincaid,
285 U.S. 95 (1932)                                                                                             40

 

Jacobs v. United States,
290 U.S. 13 (1933)                                                                                             34

 

Kaiser Aetna v. United States,
444 U.S. 164 (1979)                                                                                           15, 39

 

Keshbro, Inc. v.  City of Miami,
__ So.2d __, 2001 WL 776555 (Fla. 2001)                                                      24

 

Kimball Laundry Co v. United States,
338 U.S. 1 (1949)                                                                                               15

 

Kirby Forest Indus., Inc. v. United States,
467 U.S. 1 (1984)                                                                                               14

 

Lockary v. Kayfetz,
917 F.2d 1150 (9th Cir. 1990)                                                                          36

 

Table of Authorities (continued)

 

                                                                                                                  Page

Cases

 

Lomarch Corp. v. Mayor of Englewood,
237 A.2d 881 (N.J. 1968)                                                                                  24

 

Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982)                                                                                           11, 23, 38

 

Loveladies Harbor, Inc. v. United States,
28 F.3d 1171 (Fed Cir. 1994)                                                                           46

 

Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992)                                                                                         35

 

Lucas v. South Carolina Coastal Council,
424 S.E.2d 484 (S.C. 1992)                                                                               18

 

Lynch v. Household Fin. Co.,
405 U.S. 538 (1972)                                                                                           9

 

MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340 (1986)                                                                                           35

 

Marandino v. Planning & Zoning Commn.,
573 A.2d 768 (Conn. App. 1990)                                                                    27

 

Nollan v. California Coastal Commn.,
483 U.S. 825 (1987)                                                                                           40

 

Palazzolo v. Rhode Island,
 __ U.S. __ (2001)                                                                                              41

 

Penn Central Transp. Co. v. City of New York,
438 U.S. 104 (1978)                                                                                           35

 

Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922)                                                                                           15

 

Table of Authorities (continued)

 

                                                                                                                  Page

Cases

 

Pope v. De Poala,
574 N.Y.S.2d 869 (1991)                                                                                  27

 

Preseault v. I.C.C.,
494 U.S. 1 (1990)                                                                                               39

 

Pumpelly v. Green Bay Co.,
13 Wall. (80 U.S.) 166 (1872)                                                                           15

 

Regional Rail Reorganization Act Cases,
419 U.S. 102 (1974)                                                                                           39

 

Richmond Elks Hall Assn. v. Richmond Redev. Agency,
561 F.2d 1327 (9th Cir. 1977)                                                                          35

 

Romesburg v. Fayette County Zoning Hearing Bd.,
727 A.2d 150 (Penn. Comm. Ct. 1999)                                                          27

 

Ruckelshaus v. Monsanto Co.,
467 U.S. 986 (1984)                                                                                           11, 39

 

San Diego Gas & Elec. Co. v. City of San Diego,
450 U.S. 621 (1981)                                                                                           35

 

Schiavone Constr. Co. v. Hackensack Meadowlands Dev. Commn.,
486 A.2d 330 (N.J. 1985)                                                                                  24

 

Skip Kirchdorfer, Inc. v. United States,
6 F.3d 1573 (Fed. Cir. 1993)                                                                            15

 

Steel v. Cape Corp.,
677 A.2d 634 (Md. App. 1996)                                                                       24

 

United States v. Causby,
328 U.S. 256 (1946)                                                                                           15, 28

 

Table of Authorities (continued)

 

                                                                                                                  Page

Cases

 

United States v. Clarke,
445 U.S. 253 (1980)                                                                                           46

 

United States v. Dickinson,
331 U.S. 745 (1947)                                                                                           15

 

United States v. Dow,
357 U.S. 17 (1958)                                                                                             28

 

United States v. General Motors Corp.,
323 U.S. 373 (1945)                                                                                           15

 

United States v. Peewee Coal Co.,
341 U.S. 114 (1951)                                                                                           38

 

United States v. Petty Motor Co.,
327 U.S. 372 (1946)                                                                                           15

 

Wheeler v. City of Pleasant Grove,
833 F.2d 267 (11th Cir. 1987)                                                                          17

 

Williamson County Reg. Plan. Commn. v. Hamilton Bank,
473 U.S. 172 (1985)                                                                                           35

 

Winger v. Aires,
89 A.2d 521 (Pa. 1952)                                                                                     34

 

Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952)                                                                                           38

 

Yuba Goldfields, Inc. v. United States,
723 F.2d 884 (Fed. Cir. 1983)                                                                          19

 

Yuba Natural Resources, Inc. v. United States,
904 F.2d 1577 (Fed. Cir. 1990)                                                                        37

 

 

Table of Authorities (continued)

 

                                                                                                                  Page

Statutes

 

Cal. Gov. Code § 65858                                                                                              25

 

Cal. Gov. Code § 65950                                                                                              27

 

 

 

Texts

 

Annot., Zoning:  Construction and Effect of Statute Requiring That
Zoning Application Be Treated As Approved If Not Acted On
Within Specified Period Of Time,

66 A.L.R.4th 1012, 1023                                                                                              27

 

APA, The Growing Smart Legislative Guidebook (2001)

(reproduced in ALI-ABA, Land Use Institute Study Materials 133

[Aug. 16-18, 2001)                                                                                                        4

 

C Am Jur 2d, Property § 3 at 69 (1997)                                                                     19

 

Eagle, Steven J., Temporary Regulatory Takings and Development Moratoria: 

The Murky View From Lake Tahoe, 31 Envtl. L. Rep. 10224 (2001)                         24

 

Epstein, Richard, Takings:  Private Property and

the Power of Eminent Domain 94 (1986)                                                                 18

 

Haar, Charles M. & Kayden, Jerold S., Landmark Justice 191 (1989)                  15

 

Kayden, Jerold S., Old Wine in New Bottles, 46 Land Use Law &
Zoning Digest, no. 9, p. 9 (Sept. 1992)                                                                     18

 

Land Use Law & Zoning Dig., no. 6, p. 3 at 5 (1994)                                             27

 

Larsen, Wendy U. & Larsen, Marcella, Moratoria as Takings Under Lucas,

46 Land Use Law & Zoning Dig., no. 6, p. 3 (1994)                                               36

Mandelker, Daniel R., Gerard, Jules B. & Sullivan, E. Thomas,

Federal Land Use Law § 2A.05(2)(c), p. 2A-64 (rev. 2001)                                    25

 

Table of Authorities (continued)

 

                                                                                                                  Page

Texts

 

Nichols on Eminent Domain, § 1.42(7), p. 1-269 (rev. 3d ed. 2001)                     31

 

Pollot, Mark L., Grand Theft and Petit Larceny: 

Property Rights in America xviii (1993)                                                                  36

 

Power, Garrett, Multiple Permits, Temporary Takings, and Just Compensation,

23 Urban Lawyer 449 (1991)                                                                                      36

 

Tribe, Laurence, American Constitutional Law § 9-3 at 593 (2d ed. 1988)         18

 

Walter, Appraisal Methods and Regulatory Takings: 

New Directions For Appraisers, Judges, and Economists,

63 Appraisal J. 331 (1995)                                                                                           16

 

Young, Anderson's American Law of Zoning, Subdivision Controls,
§ 25.16 4th ed. 1996                                                                                                     27

 

Ziegler, Edward, Rathkopf's The Law of Zoning & Planning

§ 11.01(3), p. 11-5 (4th ed., rev. 2001)                                                                        13

 

Zizka, Michael A., et al., State & Local Government Land Use Liability

§ 4:4, p. 4-10 (rev. 2000)                                                                                              27

 

 

 

preface

Seventeen years ago, some 700 owners of individual, single-family lots in the Lake Tahoe Basin in California and Nevada filed suit, seeking redress for what had, until then, been a three year "temporary" ban on making any productive use of their land.  They sued when that freeze mutated into a permanent taking of their land.[1]

Petitioners are not developers.  They are individuals who purchased their lots in order to build homes on them — as was then permitted by prevailing zoning and land use regulations.  Now, all they can do is look at and walk on "their" land (although the trial judge noted that, as written, TRPA's rules preclude at least some of these landowners from even walking on their own property without first getting a government permit [Pet. App., p. 73]).  All other rights — except the "right" to pay taxes — have been de facto taken.

Thus, one point must be plainly stated up front:  the purported "temporary" planning "moratorium" was nothing of the sort; it never allowed any use and it never ended.[2]  Whatever else one may say about it — and the Court can expect the Tahoe Regional Planning Agency (TRPA) and its amici curiae to say a good deal — these landowners did not file suit until after the so-called "temporary" freeze had become permanent with the adoption of TRPA's 1984 Plan, leaving them with no allowable land uses since 1981.   At that point, they sought compensation for both past and future takings of their right to use their homesites.

statement of the case

The Petitioners — some 400 owners of individual, lawfully subdivided, single-family residential lots around Lake Tahoe — are mostly married couples who bought their lots years ago for individual retirement, vacation, or permanent homes for themselves and their families.[3]  The lots were all located in partially developed residential neighborhoods with paved roads, utility service, and homes built on many of the neighboring lots.  All of the landowners bought their lots many years before the regulations challenged here were even being considered.  Their expectation to use their land the same as their neighbors was thus as real as it was reasonable.  (Compare Lucas v. South Carolina Coastal Council, 505 U.S. 1003 [1992] [taking occurred when new regulations prevented buyer of last two undeveloped lots in a subdivision from building].)

However, for the past two decades TRPA has prevented Petitioners from building their homes (or anything else) by a series of rolling prohibitions.  There were four formal prohibitions, interspersed with informal ones to bridge some gaps, the upshot of which has been a total prohibition of any use since 1981.

Lake Tahoe is a unique treasure.  That, as the District Court observed, is why people want to build homes near it.  (Pet. App., p. 65.)  However, in the 1950s and 1960s, its trademark clarity began to lose its luster.  Construction of infrastructure (e.g., roads and general grading) for local development was increasing the runoff of dirt and nutrients into the lake, thus increasing the growth of algae and clouding the water.  (Pet. App., pp. 62-65.)  The solution, curbing development, was obvious and, in 1969, California and Nevada (with the concurrence of Congress and the President) created TRPA to unify land use planning and control in the 501 square mile, bi-state, Lake Tahoe Basin.  The problem which has brought this case here is not the regulatory ends, but rather the unconstitutional means employed by TRPA.

TRPA's early planning divided the land into different zones, depending on its steepness, geology, water absorption, etc.  Four zones, zones 1 through 3 and SEZ (stream environment zone), were classed as "high hazard" areas, i.e., hazardous to the continued clarity of the lake, and development there was restricted, although not prohibited.

During the 1970s, the lake's clarity continued to deteriorate and the two states had differing views on how to govern the area.  After much heated negotiation, the legislatures and governors of California and Nevada, as well as the Congress and President of the United States, agreed on amendments to the interstate compact that created TRPA.  (JA 83 is the Compact as amended.)

The tripartite legislative negotiation that resulted in the new Tahoe Compact (effective Dec. 19, 1980) called for a slowdown of development, but not a halt, while TRPA was scheduled to spend the next 18 months devising environmental threshold carrying capacities for the region and then another year amending its plan to maintain those capacities.[4]  Although the Compact recites the necessity "to halt temporarily works of development in the region which might otherwise absorb the entire capacity of the region for further development or direct it out of harmony with the ultimate plan" (JA 105) during that planning period, it only imposed a cap on the number of residential permits that could be issued, not an outright ban on development.  And the restriction hammered out in these legislative negotiations was quite specific.  For 1980, 1981, and 1982, the Compact limited building permits in each of the cities and counties in the region to the number of building permits each of those entities had issued in 1978, and it listed the precise number allotted to each (JA 106).

But TRPA's first acts in early 1981 went beyond the legislatively negotiated building slowdown.  Way beyond.  Rather than implement that slowdown, it commanded a freeze.  In Ordinance 81-5 (i.e., the fifth ordinance adopted in 1981, and one of the first matters actually considered) TRPA, under the guise of amending its Water Quality Plan, precluded virtually all development in zones 1, 2, 3, and SEZ (i.e., the land involved in this case).  At the same time, TRPA candidly asked Congress and the legislatures of California and Nevada to appropriate funds to buy the affected land to alleviate the "hardship" it knew it was inflicting on landowners like those at bench, whose properties were thus de facto taken.  (See JA 126.)

Ordinance 81-5 was not a "planning" or "time out" moratorium of the kind sometimes used by planning agencies to provide needed breathing space.[5]  Although dubbed "temporary," it was nothing of the sort; it was actually a substantive regulation, rather than a procedural, planning device.  And it made a dramatic change in TRPA's land use plan.  Where that plan originally viewed the land development zones in bulk (concluding, for example, that land coverage in zone 1 throughout the basin should total 1%), Ordinance 81-5 transferred that limitation to each lot in the area, prohibiting development of more than 1% of any individual lot in zones 1 and 2, with 5% in zone 3 and zero in SEZ (see JA 169), rendering the lots unusable.  One percent coverage on a typical 10,000 square foot lot in these subdivisions would yield only 100 square feet for development — barely a tool shed, surely not a home.

Thus, in reality, Ordinance 81-5 was the first in an unremitting series of consecutive, back-to-back prohibitions.  Ostensibly, that initial moratorium was to remain in effect until TRPA adopted amendments to the Regional Plan.  A year later, on Aug. 26, 1982, TRPA established environmental threshold carrying capacities which would determine the maximum capacity for development of each lot in the area.  The Compact required TRPA to complete its work on the Regional Plan within one year of that date.  As time passed, TRPA recognized it would not meet that goal, and so, a year later, on Aug. 26, 1983, it adopted Resolution 83-21 (a 90-day temporary moratorium) suspending all permitting activities pending completion of the new Regional Plan.  (Pet. App., p. 170.)

But that additional 90-day moratorium was not enough, and TRPA informally allowed it to keep rolling from Nov. 26, 1983 until April 26, 1984, when it finally adopted a new Regional Plan.  (Pet. App., p. 75.)[6]  The 1984 Plan (Ordinance 84-1; Pet. App., p. 172) made no change in the use prohibition inflicted on these landowners.  As the trial court put it, "[w]ith respect to Class 1-3 and SEZ properties . . . nothing much changed.  The 1984 Plan provided, at least temporarily, that no projects proposing any land coverage at all in Class 1-3 and SEZ would be considered . . . ."  (Pet. App., pp. 75-76; emphasis, the court's.)[7]  Thus, whatever development it appeared to permit elsewhere in the Tahoe Basin, all of the homesites in this litigation remained untouchable.

The State of California (TRPA's staunch ally and defender in this case) sued TRPA when the 1984 Plan was adopted because it felt the parts of the new plan dealing with other landowners did not comply with the restrictive/protective demands of the Compact.  Shortly thereafter, Judge Garcia of the Eastern District of California enjoined TRPA from approving any building projects.  That injunction remained in force until TRPA promulgated another revised Regional Plan in 1987.  (Pet. App., pp. 76-77.)

But the only effect of Judge Garcia's injunction was to prevent TRPA from allowing those other landowners — not these Petitioners — to develop their properties.  Had there been no such injunction, the 1984 Plan would have precluded all development on Class 1, 2, 3, and SEZ lands anyway.

For these petitioning landowners, the impact of the 1987 Plan (the one this Court reviewed in the Suitum litigation) was simply to extend what had gone before.  The use prohibitions that had previously been labeled "temporary" in Ordinance 81-5 and then became permanent in the 1984 Plan were slightly revised but remained permanent in the 1987 Plan.  Thus, under none of the various ordinances, resolutions, informal moratoria, or formal plans TRPA issued beginning in 1981, was there anything economically beneficial or productive that these landowners could do with any of their individual homesites.  TRPA thus effectively blocked all construction for the past two decades.  The only thing left for the landowners to do was to continue holding bare legal title to something that cannot be productively used, suffer foreclosure, or sell it at bargain basement prices to public buyout entities established by the two states and the federal government for a salvage operation.  In the meantime, property taxes and all other burdens of property ownership went on.[8]

Procedurally, this case has been a nightmare for the landowners.  They have been in litigation for the better part of two decades and have nothing to show for it but the Ninth Circuit's "thinly disguised contempt" for their constitutional rights.[9] 

They have been to the Ninth Circuit four times, and before the District Court on countless occasions.[10]  In all those hearings, the lower courts refused to acknowledge the unified nature of TRPA's course of action that resulted in a continuous prohibition of all use from 1981 through the present.  Thus, as shown by the grid prepared by the Ninth Circuit (Pet. App., p. 11), the lower courts sliced and diced TRPA's actions into four pieces and analyzed each piece as though the others did not exist.  Slicing TRPA's use prohibitions like so much baloney, the District Court refused to consider the bulk of the time period during which all use was prohibited (1984 through the present) (Pet. App., pp. 107-108, 155) — and then the Ninth Circuit eliminated the earlier three years (Pet. App., p. 40).

After a 10-day trial in late 1998, the District Court found liability for a temporary taking for 1981 through 1984, relying on this Court's holdings in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) for the proposition that a regulation that deprives a landowner of all economically beneficial or productive use is a compensable taking, and First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) for the proposition that a temporary taking during a planning moratorium requires compensation the same as a permanent taking.  The District Court denied any compensation for the impact of the 1984 Plan, asserting that it was Judge Garcia's injunction that prevented permits from issuing, not TRPA's 1984 Plan.  (Pet. App., p. 106.)  Finally, the District Court denied any relief from the 1987 continuation of the use prohibitions on the ground that the statute of limitations had run by the time the landowners returned from their first two Ninth Circuit appeals and amended their complaints to seek compensation for the effects of the 1987 event.[11]

The Ninth Circuit affirmed insofar as the District Court denied relief, and reversed the limited relief the District Court had granted.  The Ninth Circuit simply refused to follow this Court's decision in First English, which held that a temporary planning moratorium could be a taking (albeit a temporary one) that requires compensation for the period when use is forbidden.[12]  Although both First English and the case at bench involved temporary planning moratoria in effect for a finite period of years, the court below asserted that it was "flatly incorrect" that First English had any impact here.  (Pet. App., p. 29.)  Then, viewing each period separately, the court held that each of the properties retained substantial value (because the life of property is theoretically infinite and there could be use left at the end of the moratorium) and therefore there could be no taking, even "assum[ing] arguendo [in light of the District Court's findings] that the moratorium prevented all development in the period during which it was in effect."  (Pet. App., p. 34, fn. 20).

Needless to say, the Ninth Circuit's reasoning ignores the fact that, while the "life of the land" may be infinite, the lives of its mortal human owners are not, and using this approach simply strips human owners of all they own and enjoy.  But, as Justice Holmes put it, the Just Compensation Clause of the Constitution "deals with people, not with tracts of land."  (Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 [1910].)  More recently, this Court reaffirmed this concept by stressing that "Property does not have rights.  People have rights."  (Lynch v. Household Fin. Co., 405 U.S. 538, 552 [1972].)

The landowners' timely Petition for Rehearing and rehearing en banc were both denied, with five active Circuit Judges dissenting.  (Pet. App., p. 156.)  This Court granted certiorari on June 29, 2001.  (JA 192.)

summary of argument

1.  Temporary takings, as this Court put it in First English, are not different in kind from permanent takings.  This Court has consistently held that the Fifth Amendment's Just Compensation Clause guarantees that any time the government takes private property for public use, compensation will be paid.  Size doesn't matter.  (Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 [1982].)  Neither does time.  (First English.)  Thus, the core fact at bench is that TRPA's actions took the right of user from these landowners.  The duration of the taking only affects the amount of compensation, not the entitlement to compensation.

2.  The Ninth Circuit wholly misunderstood this Court's First English decision.  First English involved a local ordinance designed to prevent all use of property for a limited period of time.  In that context — and this Court has always said that the factual context of its holdings is vital to their understanding (e.g., Cohens v. Virginia, 6 Wheat. [17 U.S.] 264, 399-400 [1821]) — this Court concluded that temporary takings require just compensation, just like permanent takings.

But the Ninth Circuit asserted that, to be compensable, a regulation inflicting a temporary taking must be intended by its drafters to be permanent but thereafter be struck down by a court as unconstitutional or otherwise invalid.  In that circumstance, said the Ninth Circuit, a temporary taking occurs and compensation is mandated.  But, according to that theory (which simply contradicts First English), if a regulation is consciously designed to confiscate the right to all use of private property for a temporary period of time, then no compensation can be due.

The Ninth Circuit misconstrued First English in manifold ways, ranging from the context of that decision, to the clear language chosen by this Court, to the earlier decisions relied on as authority, to the dissenting opinion's analysis that the majority rejected.  The latter takes on added meaning, as the Ninth Circuit adopted almost verbatim (although without attribution) the language of the First English dissent.  (See Pet. App., pp. 160-161.)

3.  A conscious governmental decision to freeze temporarily all use of property is the functional equivalent of a conscious governmental decision to condemn temporarily the use of that property.  From the property owners' perspective, there is no substantive difference.  In either case, they are denied the ability to use their land for a period of time.  From the government's perspective, there is no substantive difference either.  The government eliminates the property owners' right of use for whatever period it desires.

But doctrinally, the label does not matter, because in analyzing cases at the border of police power and eminent domain, this Court has opted for viewing the reality of each situation and requiring compensation when necessary to vindicate landowners' rights and to protect the government's conscious policy choice from invalidation.  This holds true regardless of the factual context[13] or the government's motivation.  Indeed, the government's intent to do good (by acting to preserve the environment, for example) only satisfies the "public use" requirement of the just compensation clause, and fortifies the need for compensation when government action infringes on the rights of landowners protected by the Fifth Amendment.  (E.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1175 [Fed. Cir. 1994].)

i

the constitution requires just compensation for all takings, regardless of their length or the manner of their instigation.  thus, the issue is not whether property was taken temporarily, but whether it was taken at all.

The question formulated by this Court is:

"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?"  (JA 192; emphasis added.)

The short and plain answer to that question is "No."  But, with respect, that question — keyed specifically to the way that the Ninth Circuit Court of Appeals chose to deal with this case — may benefit from slight refinement.  The real question is whether the Court of Appeals properly determined that government action freezing all productive use of private land does not constitute a taking.  Characterizing TRPA's action as a "temporary moratorium" tends to obscure the real issue that springs from the fact that this "moratorium" was not of limited duration, as moratoria are required to be, nor did it permit any use of these properties during its existence, as moratoria need to do in order to avoid becoming temporary takings, nor did it permit any economically viable use of the regulated land upon its expiration.[14]  Instead, it was an outright, permanent ban on all economically rational use of the Petitioners' land.  The "temporary" nature of the first 32-month freeze on all land use was illusory because at the end of the "temporary" moratoria, the prohibition of all use of Petitioners' land became permanent.  Moreover, the "temporary" nature of the freeze is constitutionally irrelevant, and could only impact the amount of compensation due.  Justice Brennan put his finger squarely on the issue, even though he did so twenty years ahead of schedule:[15]

            "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.'  Nothing in the Just Compensation Clause suggests that 'takings' must be permanent and irrevocable.  Nor does the temporary reversible quality of a regulatory 'taking' render compensation for the time of the 'taking' any less obligatory.  This Court more than once has recognized that temporary reversible 'takings' should be analyzed according to the same constitutional framework applied to permanent irreversible 'takings.' "  (San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 657 [1981] [Brennan, J., dissenting on behalf of four Justices, but expressing the substantive views of a majority].[16])

This section of the brief will analyze the nature of takings and show that the concept of "temporary" is doctrinally and constitutionally beside the point, as the government always has it within its power to make any taking "temporary" by returning what it took,[17] but that does not eliminate the need for compensation for the duration of the taking.  The analysis will then focus on First English and show that the Ninth Circuit failed to understand either its factual background or its constitutional teaching.

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