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 Reply Brief.
On Writ of Certiorari to
the United States Court of Appeals for the Ninth Circuit
REPLY BRIEF FOR PETITIONERS
table of
contents
Page
Table of Authorities iii
introduction 1
i a moratorium — as exemplified here — is a regulation that totally freezes the ability of a landowner to make any economically productive use of land. that kind of regulation is a per se taking that requires compensation. 3
ii the government cannot take the right to use land — neither the equivalent of a fee interest nor a leasehold — without compensation. 6
A The Fundamental Rules of Regulatory Takings — the Same as Those
in Direct Condemnations — Stem From the Fifth Amendment's Just Compensation
Clause. 7
B Courts Have Always Protected the Right of User. 10
C Whether the Taking is Temporary or Permanent is
Constitutionally Irrelevant; It Only Goes to the Quantum of Compensation
Payable Under the Just Compensation Clause. 12
table of
contents (continued)
Page
iii trpa's virtuous purpose cannot justify confiscating the use of private property without compensation. 16
iv the sky will not fall if landowners are compensated. 19
conclusion 20
Page
Cases
Agins v. City of Tiburon,
447 U.S. 255 (1980) 10
Armstrong v. United States,
364 U.S. 40 (1960) 3
Babbitt v. Youpee,
519 U.S. 234 (1997) 7
City of Austin v. Teague,
570 S.W.2d 389 (Tex. 1978) 18
City of Monterey v. Del Monte Dunes,
526 U.S. 687 (1999) 10
Cohens v. Virginia,
6 Wheat. (17 U.S.) 264 (1821) 5
Commissioner of Natural Resources v. S. Volpe & Co., Inc.,
206 N.E.2d 666 (Mass. 1964) 17
Del Monte Dunes v. City of Monterey,
95 F.3d 1422 (9th Cir. 1996) 11
Dickman v. Commissioner,
465 U.S. 330 (1984) 12
Dolan v. City of Tigard,
512 U.S. 374 (1994) 10
First English Evangelical Lutheran Church v. County of Los Angeles,
482 U.S. 305 (1987) 6
Hawaii Housing Auth. v. Midkiff,
467 U.S. 229 (1984) 8
Page
Cases
Hendler v. United States,
952 F.2d 1364 (Fed. Cir. 1991) 8
Hodel v. Irving,
481 U.S. 704 (1987) 7
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264 (1981) 10
Kaiser Aetna v. United States,
444 U.S. 164, 174 n. 8 (1979) 10
Keystone Assocs. v. Moerdler,
278 N.Y.S.2d 185 (N.Y. 1967) 13
Keystone Bituminous Coal Assn. v. DeBenedictis,
480 U.S. 470 (1987) 10
Kirby Forest Indus., Inc. v. U.S.,
467 U.S. 1 (1984) 8
Lomarch Corp. v. Mayor of Englewood,
237 A.2d 881 (N.J. 1968) 13
Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982) 6
Lucas v. South Carolina Coastal Council,
424 S.E.2d 484 (S.C. 1992) 13
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) 3
Nolan v. Newtown Township,
49 Pa. D. & C. 4th 148 (2000) 13
Page
Cases
Nollan v. California Coastal Commn.,
483 U.S. 825 (1987) 10
Palazzolo v. Rhode Island, 533 U.S. __,
150 L.Ed.2d 592 (2001) 11
Penn Central Transp. Co. v. City of New York,
438 U.S. 104 (1978) 4
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) 6
San Diego Gas & Elec. Co. v. City of San
Diego,
450 U.S. 621 (1981) 8
Schad v. Borough of Mount Ephraim,
452 U.S. 61 (1981) 10)
Seawall Associates v. City of New York,
544 N.Y.S.2d 542 (N.Y. 1989) 13
Sederquist v. City of Tiburon,
765 F.2d 756 (9th Cir. 1984) 4
Suitum v. Tahoe Reg. Plan. Agency,
520 U.S. 725 (1997) 17
United States v. General Motors,
323 U.S. 373 (1945) 8
United States v. Dickinson,
331 U.S. 745 (1947) 2
Page
Cases
United States v. Petty Motor Co.,
327 U.S. 372 (1946) 9
United States v. Riverside Bayview Homes,
474 U.S. 121 (1985) 10
Statutes
42 U.S.C. §
4651(8) 18
Cal. Govt. Code §
7267.6 18
NRS 342.045 18
Texts
Eagle, Steven J., Development Moratoria, First English Principles,
and Regulatory Takings, 31 Env. L. Rptr. 11232 (2001) 4,
13
Kramer, Bruce M., Recent
Developments in Land Use and Environmental Law:
Revolution or Evolution? 1988 Institute on Planning, Zoning,
and Eminent Domain,
ch. 5, p. 5-5 14
Larsen, Wendy U. & Larsen, Marcella, Moratoria as Takings Under Lucas,
46 Land Use Law &
Zoning Dig., no. 6, p. 3 at 6 [1994] 5
Lazarus, Richard J., Litigating Suitum v. Tahoe Reg'l Planning
Agency
in the United States Supreme Court,
12 J. Land Use &
Env'tl Law 179 (1997) 17
Mandelker, Daniel R.,
Jules B. Gerard & E. Thomas Sullivan,
Federal Land Use Law §
2A.05(2)(c), p. 2A (rev. 2001) 5
Page
Texts
Traynor, Roger J., No Magic Words Could Do It Justice,
49 Cal. L. Rev. 615
(1961) 7
Zizka, Michael A., et
al., State & Local Government Land Use Liability
§ 4:4, p. 4 (rev.
2000) 5
1. Twelve lawyers from six different law offices submitted the Tahoe Regional Planning Agency's (TRPA) brief, but they all missed the point of the Petitioners' (landowners) opening brief. They assert that "Petitioners never explain the legal underpinnings of their theory." (TRPA 15; emphasis added.) And, remaining true to that blindness, they never deal with the argument at pp. 32-49 of the opening brief — where those underpinnings are analyzed at length. In a nutshell, the landowners' legal theory is, as the headline on page 32 expressed it:
"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."
Not one of TRPA's half dozen amici takes issue with this underlying thesis either. In fact, only one of them even mentions it, and its analysis supports the landowners, not TRPA. The brief filed by the National Audubon Society and three other environmental organizations put it this way:
"As the Court made crystal clear in First English, regulatory takings doctrine flows from and is governed by the same basic principles which govern exercises of the power of eminent domain generally. See 482 U.S. at 314. When the government seizes property by eminent domain, say for a road, it cannot be argued that the government has no obligation to pay compensation because the road addresses a 'serious' or 'important' public transportation problem. Similarly, in the regulatory takings context, it would make no sense to conclude that the importance of the police power objective being pursued should weigh against a finding of a compensable taking." (Audubon 21-22.)
The Audubon Society's brief not only bolsters the landowners' legal theory, it lays to rest the arguments made by TRPA and the rest of its amici that moratoria in general, and this series of moratoria in particular, should not require compensation because they are imposed to achieve praiseworthy goals.
2. One other matter bears early mention. TRPA and its amici take the landowners to task for having the effrontery to note that the 1984 and 1987 TRPA Plans also precluded all use of these lots. But that's the fact. The trial judge found that, once the "temporary" moratoria were replaced by the 1984 Plan, "nothing much changed" for these landowners. (Pet. App., pp. 75-76.)
This Court does not sit to decide hypothetical questions. Thus, although it framed the question now being briefed as whether the Ninth Circuit erred in its conclusions about temporary takings, that question must be addressed on this record, not in a vacuum. (See United States v. Dickinson, 331 U.S. 745, 748 [1947] ["Constitution is intended to preserve practical and substantial rights, not to maintain theories . . . ."].)[1] Reality is this: these landowners waited during the entirety of the "temporary" moratorium period before filing suit. They did not immediately rush to court, but did so only after the "temporary" moratoria were replaced with a permanent plan in which "nothing much changed" for them, and the use of their land remained frozen.
Thus, TRPA's and its friends' generalizations about how temporary moratoria end, and how thereupon there is use at the end of the tunnel, do not deal with this case. The end of these moratoria made the land's disutility as permanent as the regulation in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). In short, Lake Tahoe is being protected on the backs of Petitioners, contrary to Armstrong v. United States, 364 U.S. 40, 49 (1960), which held that the cost of public benefits must be apportioned among those who benefit from them, and not simply dumped onto those few citizens who fortuitously find themselves in the path of grandiose government plans intended to benefit society at large.
Neither TRPA nor its amici want to defend the total freeze on property use effected by TRPA's moratoria.[2] Small wonder. Whenever commentators or lower courts have defended regulations that call themselves "moratoria," they focus on the uses remaining to the owners during the moratorium or the uses available thereafter.[3] They do so because even pro-government advocates know the importance — if moratoria are to be defensible — of not prohibiting all use, thereby leaving landowners something to do other than mark off days on a calendar. (E.g., Robert Meltz, Dwight H. Merriam & Richard M. Frank, The Takings Issue 278 [1999] [ironically, one of the book's authors represents Respondent State of California herein].)
Here, however, the facts preclude those arguments because there is no permitted use. Nonetheless, TRPA and its amici base their position on the unmitigated fiction that the moratoria left Petitioners with some use of their land either during (APA, pp. 5, 28; Govt. Associations, pp. 17, 19) or after (TRPA, p. 26; Audubon, pp. 1, 6, 18-19, 27; APA, p. 28; SG, pp. 18-19; Govt. Associations, p. 17) the moratoria, or — incredibly — that these landowners actually benefited from the moratoria (TRPA, p. 26; SG, p. 29; States, p. 21).[4]
Thus, it seems necessary to examine the "moratorium" that is before this Court. This moratorium was a total freeze on the ability of the owners of the affected land to develop their land in any way. Moreover, when the moratorium supposedly ended, the affected owners were still forbidden to use their land. (Pet. App., pp. 75-76 [per trial judge: "nothing much changed"].) That is not the mere "adjust[ment of] the benefits and burdens of economic life" this Court talked about in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). That kind of moratorium has been recognized as being a Lucas taking requiring compensation:
"A moratorium should be considered a categorical taking under Lucas when it prohibits all development or the submission of development applications on a given parcel of property that currently has available no economically beneficial or productive uses." (Wendy U. Larsen & Marcella Larsen, Moratoria as Takings Under Lucas, 46 Land Use Law & Zoning Dig., no. 6, p. 3 at 6 [1994].)
"[I]n the residential context, a moratorium should be considered a categorical taking where property zoned residential has no existing habitable/saleable structures and is vacant." (Michael A. Zizka, et al., State & Local Government Land Use Liability § 4:4, p. 4-11 [rev. 2000].)
"The Supreme Court's Lucas decision requires a holding that a per se taking has occurred when a moratorium denies a landowner all reasonable use of his land . . . ." (Daniel R. Mandelker, Jules B. Gerard & E. Thomas Sullivan, Federal Land Use Law § 2A.05[2][c], p. 2A-65 [rev. 2001].)
What is before this Court is a categorical moratorium that permits no productive private use during its entire existence. That is the factual predicate of this case. And that is the context in which the law needs to be analyzed. (See Cohens v. Virginia, 6 Wheat. [17 U.S.] 264, 399-400 [1821].)
Thus, the class of cases covered by the per se rule proposed by the landowners includes — like Lucas — those categorical moratoria that wholly preclude private economically productive use of privately owned land. If the Court were also to conclude that other kinds of moratoria (e.g., the kind that TRPA and its amici have chosen to defend, i.e., those that do not wholly preclude productive use) are subject to an ad hoc analysis under Penn Central,[5] that would not hinder reversal of the Ninth Circuit on these facts, nor preclude application of a per se rule when they recur.
The salient feature of the common law is its ability to grow and adapt. Regulatory takings law is a particularly noteworthy illustration, because its modern history dates back only about two decades. When this Court re-entered the field after the nearly half-century pause that followed Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), it was properly cautious. But that does not mean that the first cases that came along locked the law in some rigid straightjacket. In its first effort, Penn Central, the Court was content to say that it had no hard and fast rules, and it would examine each takings case on its own facts. (438 U.S. at 124.)
The law continued to develop.[6] A few years later, the Court decided Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). By that time, the Court was ready to articulate the holding that a permanent physical invasion does not require ad hoc examination, and is a per se taking.[7] And then came Lucas, where the Court announced another per se taking event: a regulation that denied landowners the economically productive or beneficial use of their land. That didn't require ad hoc examination either.
TRPA believes the law then stopped developing; that when this Court said that those two types of government action represented per se, or categorical, takings, that completed the list and closed the file. (See TRPA, pp. 15, 20.) TRPA is wrong.[8]
With respect, those who would make such arguments are what California's late Chief Justice Roger Traynor called "bogus defenders of stare decisis," bent on hiding behind their view of where the law stopped in order to prevent their opponents from obtaining justice. (Roger J. Traynor, No Magic Words Could Do It Justice, 49 Cal. L. Rev. 615, 621 [1961].)
The rule the landowners seek here is only a modest application of concepts already announced, i.e., that a regulation totally forbidding all use of property for any period of time is another kind of per se taking. As discussed in the landowners' opening brief (and never disputed by TRPA), there is no legal, conceptual, or jurisprudential difference between a government agency's deliberate decision to freeze the use of land for a period of years and that same agency's formal condemnation of the right of user for the same time period. In the latter situation, no one would doubt the owner's right to compensation. The same should hold true here. This Court concluded plainly in Lucas that restraints imposed by regulation are constitutionally the same as those imposed through condemnation:
"The many statutes on the books, both state and federal, that provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equivalence in this setting of negative regulation and appropriation. [Citing numerous statutes.]" (505 U.S. at 1018-1019; emphasis added.)
When regulations have the same effect as physical occupation (i.e., assuming control and precluding the landowners from using their own land),[9] there is no functional difference between the two modes of government action. (First English, 482 U.S. at 318-319; San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 652 [1981] [Brennan, J., dissenting].) Either way, the owners are deprived of the use and enjoyment of their land, and it is that deprivation, not the formal acquisition of title by the government, that accomplishes the taking. (U.S. v. General Motors, 323 U.S. 373, 378 [1945]; Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1, 14 [1984]; see also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 244 [1984].)[10]
In General Motors, this Court addressed the compensation due when the government took temporary occupancy of property. Carefully parsing the words of the Fifth Amendment, the Court concluded first that "property" included all interests in land an individual might hold, and then decided that determining what has been "taken" is based on "the deprivation of the former owner rather than the accretion of a right or interest to the sovereign . . . ." (323 U.S. at 378.) There, what was taken was an estate for years, i.e., a temporary deprivation of the right of use. The same is true at bench — but without the agency honestly fessing up to it. (See also United States v. Petty Motor Co., 327 U.S. 372, 378 [1946] [constitutionally immaterial whether government took leasehold, or right to use "or only destroyed the tenant's right of occupancy"].)
In Kirby, which dealt with the government's delay in completing an acquisition, the Court concluded simply that:
"We have frequently recognized that a radical curtailment of a landowner's freedom to make use of or ability to derive income from his land may give rise to a taking within the meaning of the Fifth Amendment, even if the Government has not physically intruded upon the premises or acquired a legal interest in the property." (467 U.S. at 14; Marshall, J., for a unanimous Court.)
"[R]adical curtailment of a landowner's freedom to make use of . . . his land" seems a stunningly apt description of what TRPA did here. When government enacts regulations so severe that they prevent all economically productive private use of privately owned land, the government has taken an interest in the land as surely as if it directly condemned it. Fifth Amendment compensation follows. As this Court put it in First English, "government action that works a taking of property rights necessarily implicates the 'constitutional obligation to pay just compensation.' [Citation.]" (482 U.S. at 315; emphasis added.)
This Court has repeatedly framed its test for a regulatory taking in terms of the ability of landowners to use their land.[11]
Lucas was most decisive in focusing on denial of use as the key to a regulatory taking.[12] There, the Court repeatedly stressed its concern with the impact of South Carolina's regulation on Mr. Lucas' ability to make rational use of his vacant, but subdivided, land.[13] In its most recent decision, Palazzolo v. Rhode Island, 533 U.S. __, 150 L.Ed.2d 592, 607 (2001), the Court reiterated this Lucas conclusion, as it assumed the owner could have built a substantial home on his land.
The relationship of use to value was part of the recent Del Monte Dunes litigation. There, after the city had repeatedly turned down development applications and the owner had sued for compensation, the state bought the property for less than the testimony of its fair market value, but more than the owner had paid for it earlier. The jury nonetheless returned a verdict in the owner's favor, the Court of Appeals affirmed (Del Monte Dunes v. City of Monterey, 95 F.3d 1422, 1433 [9th Cir. 1996]), and this Court affirmed as well (526 U.S. 687). Moreover, the Court of Appeals discussed the question of remaining value in terms of a moratorium, in words that presaged the facts here:
"For example, in conjunction with a legislative moratorium on property development, a state might implement a 'buy-out' program for environmentally sensitive property and purchase a landowner's property at a higher price than what the landowner originally paid. [Citations to Lucas and an earlier TRPA case.] A government buy-out, of course would not necessarily shield the government from the Takings Clause. Rather, the buy-out would likely implicate the issue of just compensation. Thus, a landowner who believed that the government bought out his property at an unfairly low price might choose to bring an action for just compensation." (95 F.3d at 1432.)
The idea that use is a key right in the property rights bundle is not restricted to takings law. As this Court concluded in a tax case:
"We have little difficulty accepting the theory that the use of valuable property . . . is itself a legally protectible property interest. Of the aggregate rights associated with any property interest, the right of use of property is perhaps of the highest order." (Dickman v. Commissioner, 465 U.S. 330, 336 [1984]; emphasis added.)
In First English, this Court plainly acknowledged the existence of a temporary taking and the constitutional necessity to compensate when one occurs. (482 U.S. at 318.) It appears that TRPA and its friends are upset that the context of First English was a temporary planning moratorium of about the same length as the pre-1984 moratoria here. To evade that nasty factual coincidence, two of TRPA's amici insist that the facts of First English are "entirely irrelevant" to its holding. (States, p. 25; APA, p. 18, fn. 6.) Can't be so. Holdings are always tied to their facts, and if the Court believed the facts — as a matter of law — could not support a taking, it would have refused to decide the issue, as it had previously. (See First English, 482 U.S. at 311.)
Moreover, in Lucas, the government argued that its regulation had been amended so that Mr. Lucas could apply for a permit, rendering any consideration of a taking premature. This Court would have none of it, concluding that the question of whether the amendment had rendered the taking temporary could be decided by the state courts on remand. (505 U.S. at 1011-1012 [citing First English].)[14] In his concurring opinion, Justice Kennedy also noted that this only presented a question for remand, saying "it is well established that temporary takings are as protected by the Constitution as are permanent ones. [Citing First English.]" (505 U.S. at 1033.)
TRPA also asserts that economically viable use cannot mean "immediate" use. (TRPA, pp. 16, 31.) Sometimes, it does. Although landowners may have to wait a modest amount of time while development applications are being processed (not frozen, but processed),[15] a deliberate government development ban is a far different creature. For example, in Lomarch Corp. v. Mayor of Englewood, 237 A.2d 881 (N.J. 1968), the court held that if government wanted to freeze the use of land for one year while deciding whether to acquire it, it had to compensate the owner for seizing his ability to use the land, equating the action with the purchase of an option on the private market. Similarly, in Seawall Associates v. City of New York, 544 N.Y.S.2d 542 (N.Y. 1989), the court held that a five year moratorium on converting low rent housing into anything else was a taking. The court found the ordinance facially invalid as a drastic interference with the owners' "right to use their properties as they see fit" (544 N.Y.S.2d at 549; emphasis, the Court's) and a taking of their right to develop their properties (544 N.Y.S.2d at 550).[16] In Nolan v. Newtown Township, 49 Pa. D. & C. 4th 148 (2000), a landowner sued when the township instituted an 18 month moratorium on subdivisions while it contemplated changes in its ordinance. The court held that he properly stated a claim under First English and set the matter for valuation. Those cases involved taking the "immediate" right to use.
Because of the shared constitutional parentage of direct and inverse condemnation law,[17] First English analogized the temporary moratorium before it to the condemnation of a leasehold for the same period of time. Even if the owner had no "immediate" plan for use, compensation would still be due.[18] Thus, the key to all takings is the deprivation of the owner's property rights. (See Eagle, op. cit., p. 11238.) The length of the deprivation affects only the quantum of compensation.
Similarly, TRPA's (and the Ninth Circuit's) position that temporary takings — by definition — cannot arise from regulations that were intended to be temporary, makes no sense.[19] If, as this Court has repeatedly held, the Constitution is concerned with the pragmatic impact of government action on citizens, then the mode of infliction is not determinative. If the action is severe enough to be a taking, then it remains a taking even if intended only for a finite period of time. Besides, the rule advocated by TRPA would open the door to abuses — for who is to say that an ostensibly temporary moratorium is not actually a substitute for a use prohibition? Or that a rolling series of "temporary" moratoria are not merely a surrogate for a permanent development ban? (See Eagle, op. cit., p. 11237-11238; Pet. App., pp. 163-164 [Kozinski, J., dissenting].)
The Solicitor General parts company with TRPA and posits that there "could be circumstances in which even land-use regulation that was intended from the outset to be temporary should be analyzed under the Lucas per se takings approach . . . ." (SG, p. 28.) To find such circumstances, the brief insists that:
"the regulation precluded all economically viable use of property during the period it was in effect and also shared the other characteristics of the regulation that was found in Lucas to be a per se taking — i.e., if the regulation imposed markedly disproportionate burdens on isolated landowners rather than securing a reciprocity of advantage to a broad community, effectively pressed private property into public service (albeit for a finite period), and represented a significant departure from background property-law principles." (SG, p. 28.)
If that is to be the test, this case meets each part. First, although these moratoria adversely affected a substantial number of properties, they placed a disproportionate burden on relatively few because the area under TRPA's regulation covers some 500 square miles, with thousands upon thousands of subdivided lots. The affected property owners are only those in the so-called "high hazard" areas on the steeper hillsides or in the stream environment zones. All the vacant lots in that targeted area — and only those — were frozen by the moratoria. Second, those targeted individuals received no "reciprocity of advantage" — indeed, no advantage of any kind — from either the moratoria or the permanent regulations that followed. Their lots were frozen in 1981 and remain so. That others in the Tahoe Basin benefit from the Petitioners' sacrifice only underscores the disproportionality of the Petitioners' loss. Third, all of these properties were pressed into public service, i.e., complete non-use, because that is the "service" TRPA demanded.[20] Fourth, the proof of the impact of these moratoria is in the permanent regulations that replaced them. In light of TRPA's mission to stop the eutrophication of the lake, along with the known science that made it a foregone conclusion that stopping development on these lands in perpetuity was the only solution (see, e.g., the amicus brief filed here by a group of scientists), the moratorium did reflect a final determination about the non-use of these lots. It merely held them in limbo until formal studies could be completed justifying a permanent development ban. And the permanent regulations that followed (which, as the trial court found, made no change in what the Petitioners could do [Pet. App., pp. 75-76]) proved that. Finally, no "background" legal precept holds that the property of a selected group of individuals (even a fairly large group) can be singled out for a de facto taking to benefit a larger group.
These landowners were subjected to unconstitutional regulation, and their lands were per se taken, even under the Solicitor General's proposed criteria.
TRPA and most of its amici spend an inordinate amount of time crashing through a door that was never locked, when they argue that Lake Tahoe is beautiful and worth preserving, and therefore it is necessary to restrict development in the Tahoe Basin.[21] Indeed, the amicus brief by a group of scientists is wholly devoted to that point. Petitioners do not dispute it. (See, e.g., Cert. Pet., pp. 6-7; Pet. Br., p. 3.) It's all irrelevant.
This case is about means not ends. What is at issue is not whether TRPA can protect the glory of Lake Tahoe, but whether it can do so by freezing the use of Petitioners' land without compensation.[22] As the Supreme Judicial Court of Massachusetts aptly observed:
"In this conflict between the ecological and the constitutional, it is plain that neither is to be consumed by the other. It is the duty of the Department of Conservation to look after the interests of the former, and it is the duty of the courts to stand guard over constitutional rights." (Commissioner of Natural Resources v. S. Volpe & Co., Inc., 206 N.E.2d 666, 671 [Mass. 1964].)[23]
TRPA and its amici believe (as did the Ninth Circuit) that TRPA's goals were praiseworthy. TRPA can surely take credit for halting development in those areas of the Tahoe Basin it deemed hazardous to the Lake's purity. The constitutional problem is that it did so at the expense of a targeted group of individuals who weren't doing anything improper with their land. In fact, all they ever wanted to do with it was to use it in the very way for which the land had been officially planned and zoned for many years (as many of their neighbors had done): personal, single-family homes on lots that had already been lawfully subdivided for that purpose.[24] The protection of what TRPA calls "the crown jewel of the Sierra Nevada mountain range" (TRPA, p. 4) is not the responsibility of individuals. The Crown protects the crown jewels.[25] In the words of the Texas Supreme Court, there is no rule holding ". . . that government may take or hold another's property without paying for it, just because the land is pretty." (City of Austin v. Teague, 570 S.W.2d 389, 394 [Tex. 1978].)
Thus, when the federal government decided to protect the ancient Coast Redwoods, another irreplaceable environmental treasure, it bought them. (Pub. L. 90-454, 82 Stat. 931 [1968].) And so it should here.
The briefs filed in support of the Ninth Circuit's ruling raise familiar "Chicken Little" arguments, of the "parade of horribles" variety. (E.g., Audubon, p. 2; Govt. Associations, p. 3; States, p. 1.) Their alarums are unfounded.[26] The real problem is that, relying on undue judicial deference to their handiwork, many land use regulators have grown lax and lazy about keeping their plans up to date, and have lapsed into the unfortunate practice of using ad hoc moratoria as substitutes for municipal foresight and responsible planning. As two lawyer/land use consultants put it in an American Planning Association publication, "moratoria should not be used as a crutch in place of long-term planning . . . ." (Wendy U. Larsen & Marcella Larsen, Moratoria as Takings Under Lucas, 46 Land Use Law & Zoning Digest, no. 6, p. 3 [1994].) Building on that thought, a more recent text concluded:
"moratoria are not an acceptable substitute for consistent advance long-term planning. Moratoria are enacted, in most cases, because comprehensive plans and land development regulations have not been prepared or kept current with changing conditions. If they were, development applications which are unwanted and the kind of 'emergency' planning studies which engender moratoria would be avoided." (Michael A. Zizka, et al., State & Local Government Land Use Liability § 4:4, p. 4-14 [rev. 2000].)
As for the financial catastrophe that TRPA and its amici predict, the Larsens' article concludes that if categorical moratoria (like the ones at bench) are invoked properly (i.e., rarely and for limited times and reasons), "the instances where the Lucas categorical taking rule would come into play with moratoria should be relatively rare. [¶] Moratoria will even more rarely cause takings when communities are careful not to use them as substitutes for consistent long-term planning." (Larsen & Larsen, op. cit., 46 Land Use Law & Zoning Digest, no. 6, p. 7; emphasis in original.)[27]
TRPA sacrificed the rights of these landowners so that Lake Tahoe could remain clear and blue and beautiful. It is time for TRPA to shoulder the burden for that very public project by compensating them for what was taken.
Petitioners pray that the decision of the Ninth Circuit be reversed.
Respectfully submitted,
Lawrence L. Hoffman Michael M. Berger*
Hoffman Law Offices Gideon Kanner
Berger & Norton