Footnotes

 

1.  Often referred to as the “Just Compensation Clause,” the final Clause of the Fifth Amendment provides: “... nor shall private property be taken for public use without just compensation.” It applies to the States as well as the Federal Government. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980).

2.  According to a Senate Report: “Only two other sizable lakes in the world are of comparable quality—Crater Lake in Oregon, which is protected as part of the Crater Lake National Park, and Lake Baikal in the [former] Soviet Union. Only Lake Tahoe, however, is so readily accessible from large metropolitan centers and is so adaptable to urban development.” S.Rep. No. 91–510, pp. 3–4 (1969).

3.  The District Court added: “Or at least, for a very, very long time. Estimates are that, should the lake turn green, it could take over 700 years for it to return to its natural state, if that were ever possible at all.” 34 F.Supp.2d, at 1231.

4.  App. 104–107. This moratorium did not apply to rights that had vested before the effective date of the 1980 Compact. Id., at 107–108. Two months after the 1980 Compact became effective, TRPA adopted its Ordinance 81–1 broadly defining the term “project” to include the construction of any new residence and requiring owners of land in districts 1, 2, or 3, to get a permit from TRPA before beginning construction of homes on their property. 34 F.Supp.2d 1226, 1233 (D.Nev.1999).

5.  As explained above, supra, at —— 4, the petitioners who purchased land after the 1972 compact did so amidst a heavily regulated zoning scheme. Their property was already classified as part of land capability districts 1, 2, and 3, or SEZ land. And each land classification was subject to regulations as to the degree of artificial disturbance the land could safely sustain.

6.  911 F.2d 1331 (C.A.9 1990); 938 F.2d 153 (C.A.9 1991); 34 F.3d 753 (C.A.9 1994); 216 F.3d 764 (C.A.9 2000); 611 F.Supp. 110 (D.Nev.1985); 808 F.Supp. 1474 (D.Nev.1992); 808 F.Supp. 1484 (D.Nev.1992).

7.  In 1991, petitioners amended their complaint to allege that the adoption of the 1987 plan also constituted an unconstitutional taking. Ultimately both the District Court and the Court of Appeals held that this claim was barred by California’s 1–year statute of limitations and Nevada’s 2–year statute of limitations. See 216 F.3d, at 785–789. Although the validity of the 1987 plan is not before us, we note that other litigants have challenged certain applications of that plan. See Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997).

8.  In his dissent, The Chief Justice contends that the 1984 plan is before us because the 1980 Compact is a proximate cause of petitioners’ injuries, post, at —— -—— 1–3. Petitioners, however, do not challenge the Court of Appeals’ holding on causation in their briefs on the merits, presumably because they understood when we granted certiorari on the question “[w]hether 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,” 533 U.S. 948, 121 S.Ct. 2589, 150 L.Ed.2d 749 (2001), we were only interested in the narrow question decided today. Throughout the District Court and Court of Appeals decisions the phrase “temporary moratorium” refers to two things and two things only: Ordinance 81–5 and Resolution 83–21. The dissent’s novel theory of causation was not briefed, nor was it discussed during oral argument.

9.  As the District Court explained: “There is a direct connection between the potential development of plaintiffs’ lands and the harm the lake would suffer as a result thereof. Further, there has been no suggestion by the plaintiffs that any less severe response would have adequately addressed the problems the lake was facing. Thus it is difficult to see how a more proportional response could have been adopted. Given that TRPA’s actions had wide-spread application, and were not aimed at an individual landowner, the plaintiffs would appear to bear the burden of proof on this point. They have not met this burden—nor have they really attempted to do so. Although unwilling to stipulate to the fact that TRPA’s actions substantially advanced a legitimate state interest, the plaintiffs did not seriously contest the matter at trial.” 34 F.Supp.2d, at 1240 (citation omitted).

10.  The Penn Central analysis involves “a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.” Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001).

11.  34 F.Supp.2d, at 1241. The court stated that petitioners “had plenty of time to build before the restrictions went into effect—and almost everyone in the Tahoe Basin knew in the late 1970s that a crackdown on development was in the works.” In addition, the court found “the fact that no evidence was introduced regarding the specific diminution in value of any of the plaintiffs’ individual properties clearly weighs against a finding that there was a partial taking of the plaintiffs’ property.” Ibid.

12.  The pretrial order describes purchases by the United States Forest Service of private lots in environmentally sensitive areas during the periods when the two moratoria were in effect. During the 2–year period ending on August 26, 1983, it purchased 215 parcels in California at an average price of over $19,000 and 45 parcels in Nevada at an average price of over $39,000; during the ensuing 8–month period, it purchased 167 California parcels at an average price of over $29,000 and 27 Nevada parcels at an average price of over $41,000. App. 76–77. Moreover, during those periods some owners sold sewer and building allocations to owners of higher capability lots “for between $15,000 and $30,000.” Id., at 77.

13.  Ordinance 81–5 specified that it would terminate when the regional plan became finalized. And Resolution 83–21 was limited to 90 days, but was renewed for an additional term. Nevertheless, the District Court distinguished these measures from true “temporary” moratoria because there was no fixed date for when they would terminate. 34 F.Supp.2d, at 1250–1251.

14.  216 F.3d, at 773. “Below, the district court ruled that the regulations did not constitute a taking under Penn Central’s ad hoc approach, but that they did constitute a categorical taking under Lucas  [v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) ]. See Tahoe-Sierra Preservation Council, 34 F.Supp.2d at 1238–1245. The defendants appealed the district court’s latter holding, but the plaintiffs did not appeal the former. And even if arguments regarding the Penn Central test were fairly encompassed by the defendants’ appeal, the plaintiffs have stated explicitly on this appeal that they do not argue that the regulations constitute a taking under the ad hoc balancing approach described in Penn Central.Ibid.

15.  The Court of Appeals added:

16.  Despite our clear refusal to hold that a moratorium never effects a taking, The Chief Justice accuses us of “allow[ing] the government to ... take private property without paying for it,” post, at —— 8. It may be true that under a Penn Central analysis petitioners’ land was taken and compensation would be due. But petitioners failed to challenge the District Court’s conclusion that there was no taking under Penn Central. Supra, at —— 12.

17.  In determining whether government action affecting property is an unconstitutional deprivation of ownership rights under the Just Compensation Clause, a court must interpret the word “taken.” When the government condemns or physically appropriates the property, the fact of a taking is typically obvious and undisputed. When, however, the owner contends a taking has occurred because a law or regulation imposes restrictions so severe that they are tantamount to a condemnation or appropriation, the predicate of a taking is not self-evident, and the analysis is more complex.

18.  To illustrate the importance of the distinction, the Court in Loretto, 458 U.S., at 430, 102 S.Ct. 3164, compared two wartime takings cases, United States v. Pewee Coal Co., 341 U.S. 114, 116, 71 S.Ct. 670, 95 L.Ed. 809 (1951), in which there had been an “actual taking of possession and control” of a coal mine, and United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958), in which “by contrast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations ....” 458 U.S., at 431, 102 S.Ct. 3164. Loretto then relied on this distinction in dismissing the argument that our discussion of the physical taking at issue in the case would affect landlord-tenant laws. “So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.” Id., at 440, 102 S.Ct. 3164 (citing Penn Central ).

19.  According to The Chief Justices dissent, even a temporary, use-prohibiting regulation should be governed by our physical takings cases because, under Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), “from the landowner’s point of view,” the moratorium is the functional equivalent of a forced leasehold, post, at —— -—— 6–7. Of course, from both the landowner’s and the government’s standpoint there are critical differences between a leasehold and a moratorium. Condemnation of a leasehold gives the government possession of the property, the right to admit and exclude others, and the right to use it for a public purpose. A regulatory taking, by contrast, does not give the government any right to use the property, nor does it dispossess the owner or affect her right to exclude others.

20.  The case involved “a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their house.” Mahon, 260 U.S., at 412, 43 S.Ct. 158. Mahon sought to prevent Pennsylvania Coal from mining under his property by relying on a state statute, which prohibited any mining that could undermine the foundation of a home. The company challenged the statute as a taking of its interest in the coal without compensation.

21.  In Lucas, we explained: “Prior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393[, 43 S.Ct. 158, 67 L.Ed. 322] (1922), it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, Legal Tender Cases, 12 Wall. 457, 551[, 20 L.Ed. 287], (1871), or the functional equivalent of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v. Chicago, 99 U.S. 635, 642[, 25 L.Ed. 336] (1879). ... Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits. 260 U.S., at 414–415[, 43 S.Ct. 158]. If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, ‘the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].’ Id., at 415[, 43 S.Ct. 158]. These considerations gave birth in that case to the oft-cited maxim that, ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ Ibid.” 505 U.S., at 1014, 112 S.Ct. 2886 (citation omitted).

22.  Justice Brandeis argued: “Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But a restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The State does not appropriate it or make any use of it. The State merely prevents the owner from making a use which interferes with paramount rights of the public.” Mahon, 260 U.S., at 417, 43 S.Ct. 158 (Brandeis, J., dissenting).

23.  In her concurring opinion in Palazzolo, 533 U.S., at 633, 121 S.Ct. 2448, Justice O’Connor reaffirmed this approach: “Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine.” Ibid. “Penn Central does not supply mathematically precise variables, but instead provides important guideposts that lead to the ultimate determination whether just compensation is required.” Id., at 634, 121 S.Ct. 2448. “The temptation to adopt what amount to per se rules in either direction must be resisted. The Takings Clause requires careful examination and weighing of all the relevant circumstances in this context.” Id., at 636, 121 S.Ct. 2448.

24.  Justice Kennedy concurred in the judgment on the basis of the regulation’s impact on “reasonable, investment-backed expectations.” 505 U.S., at 1034, 112 S.Ct. 2886.

25.  It is worth noting that Lucas underscores the difference between physical and regulatory takings. See supra, at —— -—— 17– 19. For under our physical takings cases it would be irrelevant whether a property owner maintained 5% of the value of her property so long as there was a physical appropriation of any of the parcel.

26.  The Chief Justices dissent makes the same mistake by carving out a 6–year interest in the property, rather than considering the parcel as a whole, and treating the regulations covering that segment as analogous to a total taking under Lucas, post, at —— 9.

27.  Armstrong, like Lucas, was a case that involved the “total destruction by the Government of all value” in a specific property interest. 364 U.S., at 48–49, 80 S.Ct. 1563. It is nevertheless perfectly clear that Justice Black’s oft-quoted comment about the underlying purpose of the guarantee that private property shall not be taken for a public use without just compensation applies to partial takings as well as total takings.

28.  Brief for the Institute for Justice as Amicus Curiae 30. Although amicus describes the 1–year cut off proposal as the “better approach by far,” ibid., its primary argument is that Penn Central should be overruled, id., at 20 (“All partial takings by way of land use restriction should be subject to the same prima facie rules for compensation as a physical occupation for a limited period of time”).

29.  Brief for Petitioners 44. See also Pet. for Cert. i.

30.  In addition, we recognize the anomaly that would be created if we were to apply Penn Central when a landowner is permanently deprived of 95% of the use of her property, Lucas, 505 U.S., at 1019, n. 8, 112 S.Ct. 2886, and yet find a per se taking anytime the same property owner is deprived of all use for only five days. Such a scheme would present an odd inversion of Justice Holmes’ adage: “A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change.” Block v. Hirsh, 256 U.S. 135, 157, 41 S.Ct. 458, 65 L.Ed. 865 (1921).

31.  Petitioners fail to offer a persuasive explanation for why moratoria should be treated differently from ordinary permit delays. They contend that a permit applicant need only comply with certain specific requirements in order to receive one and can expect to develop at the end of the process, whereas there is nothing the landowner subject to a moratorium can do but wait, with no guarantee that a permit will be granted at the end of the process. Brief for Petitioners 28. Setting aside the obvious problem with basing the distinction on a course of events we can only know after the fact—in the context of a facial challenge— petitioners’ argument breaks down under closer examination because there is no guarantee that a permit will be granted, or that a decision will be made within a year. See, e.g., Dufau v. United States, 22 Cl.Ct. 156 (1990) (holding that 16–month delay in granting a permit did not constitute a temporary taking). Moreover, under petitioners’ modified categorical rule, there would be no per se taking if TRPA simply delayed action on all permits pending a regional plan. Fairness and justice do not require that TRPA be penalized for achieving the same result, but with full disclosure.

32.  See, e.g., Santa Fe Village Venture v. Albuquerque, 914 F.Supp. 478, 483 (D.N.M.1995) (30–month moratorium on development of lands within the Petroglyph National Monument was not a taking); Williams v. Central, 907 P.2d 701, 703–706 (Colo.App.1995) (10–month moratorium on development in gaming district while studying city’s ability to absorb growth was not a compensable taking); Woodbury Place Partners v. Woodbury, 492 N.W.2d 258 (Minn.App.1992) (moratorium pending review of plan for land adjacent to interstate highway was not a taking even though it deprived property owner of all economically viable use of its property for two years); Zilber v. Town of Moraga, 692 F.Supp. 1195 (N.D.Cal.1988) (18–month development moratorium during completion of a comprehensive scheme for open space did not require compensation). See also Wayman, Leaders Consider Options for Town Growth, Charlotte Observer, Feb. 3, 2002, p. 15M (describing 10–month building moratorium imposed “to give town leaders time to plan for development”); Wallman, City May Put Reins on Beach Projects, Sun-Sentinel, May 16, 2000, p. 1B (2–year building moratorium on beachfront property in Fort Lauderdale pending new height, width, and dispersal regulations); Foderaro, In Suburbs, They’re Cracking Down on the Joneses, N.Y. Times, Mar. 19, 2001, p. A1 (describing moratorium imposed in Eastchester, New York during a review of the town’s zoning code to address the problem of oversized homes); Dawson, Commissioners recommend Aboite construction ban be lifted, Fort Wayne News Sentinel, May 4, 2001, p. 1A (3–year moratorium to allow improvements in the water and sewage treatment systems).

33.  See J. Juergensmeyer & T. Roberts, Land Use Planning and Control Law § §  5.28(G) and 9.6 (1998); Garvin & Leitner, Drafting Interim Development Ordinances: Creating Time to Plan, 48 Land Use Law & Zoning Digest 3 (June 1996) (“With the planning so protected, there is no need for hasty adoption of permanent controls in order to avoid the establishment of nonconforming uses, or to respond in an ad hoc fashion to specific problems. Instead, the planning and implementation process may be permitted to run its full and natural course with widespread citizen input and involvement, public debate, and full consideration of all issues and points of view”); Freilich, Interim Development Controls: Essential Tools for Implementing Flexible Planning and Zoning, 49 J. Urb. L. 65 (1971).

34.  The Chief Justice offers another alternative, suggesting that delays of six years or more should be treated as per se takings. However his dissent offers no explanation for why 6 years should be the cut-off point rather than 10 days, 10 months, or 10 years. It is worth emphasizing that we do not reject a categorical rule in this case because a 32–month moratorium is just not that harsh. Instead, we reject a categorical rule because we conclude that the Penn Central framework adequately directs the inquiry to the proper considerations—only one of which is the length of the delay.

35.  Petitioner Preservation Council “through its authorized representatives, actively participated in the entire TRPA regional planning process leading to the adoption of the 1984 Regional Plan at issue in this action, and attended and expressed its views and concerns, orally and in writing, at each public hearing held by the Defendant TRPA in connection with the consideration of the 1984 Regional Plan at issue herein, as well as in connection with the adoption of Ordinance 81–5 and the Revised 1987 Regional Plan addressed herein.” App. 24.

36.  We note that the temporary restriction that was ultimately upheld in the First English case lasted for more than six years before it was replaced by a permanent regulation. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 210 Cal.App.3d, 1353, 258 Cal.Rptr. 893 (1989).

37.  Several States already have statutes authorizing interim zoning ordinances with specific time limits. See Cal. Govt.Code Ann. §  65858 (West Supp.2002) (authorizing interim ordinance of up to two years); Colo.Rev.Stat. §  30–28–121 (2001) (six months); Ky.Rev.Stat. Ann. §  100.201 (2001) (one year); Mich. Comp. Laws Ann. §  125.215 (2001) (three years); Minn.Stat. §  394.34 (2000) (two years); N.H.Rev.Stat. §  674:23 (2001) (one year); Ore.Rev.Stat. Ann. §  197.520 (1997) (10 months); S.D. Codified Laws §  11–2–10 (2001) (two years); Utah Code Ann. §  17– 27–404 (1995) (18 months); Wash. Rev.Code §  35.63.200 (2001) Wis. Stat. §  62.23(7)(d) (2001) (two years). Other States, although without specific statutory authority, have recognized that reasonable interim zoning ordinances may be enacted. See, e.g., S.E.W. Friel v. Triangle Oil Co., 76 Md.App. 96, 543 A.2d 863 (1988); New Jersey Shore Builders Assn. v. Dover Twp. Comm., 191 N.J.Super. 627, 468 A.2d 742 (1983); SCA Chemical Waste Servs., Inc. v. Konigsberg, 636 S.W.2d 430 (Tenn.1982); Sturges v. Chilmark, 380 Mass. 246, 402 N.E.2d 1346 (1980); Lebanon v. Woods, 153 Conn. 182, 215 A.2d 112 (1965).

38.  We are not bound by the Court of Appeals’ determination that petitioners’ claim under 42 U.S. C §  1983 (1994 ed., Supp. V) permitted only challenges to Ordinance 81–5 and Regulation 83–21. Petitioners sought certiorari on the Court of Appeals’ ruling that respondent Tahoe Regional Planning Agency (hereinafter respondent) did not cause petitioners’ injury from 1984 to 1987. Pet. for Cert. 27–30. We did not grant certiorari on any of the petition’s specific questions presented, but formulated the following 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 United States Constitution?” 533 U.S. 948, 949, 121 S.Ct. 2589, 150 L.Ed.2d 749 (2001). This Court’s Rule 14(1)(a) provides that a “question presented is deemed to comprise every subsidiary question fairly included therein.” The question of how long the moratorium on land development lasted is necessarily subsumed within the question whether the moratorium constituted a taking. Petitioners did not assume otherwise. Their brief on the merits argues that respondent “effectively blocked all construction for the past two decades.” Brief for Petitioners 7.

39.  Even under the Court’s mistaken view that the ban on development lasted only 32 months, the ban in this case exceeded the ban in Lucas.

40.  There was no dispute that just compensation was required in those cases. The disagreement involved how to calculate that compensation. In United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945), for example, the issues before the Court were how to value the leasehold interest (i.e., whether the “long-term rental value [should be] the sole measure of the value of such short-term occupancy,” id., at 380, 65 S.Ct. 357), whether the Government had to pay for the respondent’s removal of personal property from the condemned warehouse, and whether the Government had to pay for the reduction in value of the respondent’s equipment and fixtures left in the warehouse. Id., at 380– 381, 65 S.Ct. 357.

41.  Six years is not a “cut-off point,” ante, at —— 35, n. 34; it is the length involved in this case. And the “explanation” for the conclusion that there is a taking in this case is the fact that a 6–year moratorium far exceeds any moratorium authorized under background principles of state property law. See infra, at —— -—— 12–13. This case does not require us to undertake a more exacting study of state property law and discern exactly how long a moratorium must last before it no longer can be considered an implied limitation of property ownership (assuming, that is, that a moratorium on all development is a background principle of state property law, see infra, at —— 12).

42.  These are just some examples of the state laws limiting the duration of moratoria. There are others. See, e.g., Utah Code Ann. § §  17–27–404(3)(b)(i)-(ii) (1995) (temporary prohibitions on development “may not exceed six months in duration,” with the possibility of extensions for no more than “two additional six-month periods”). See also ante, at —— 36, n. 31.

 

* The majority’s decision to embrace the “parcel as a whole” doctrine as settled is puzzling. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 631, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (noting that the Court has “at times expressed discomfort with the logic of [the parcel as a whole] rule”); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016, n. 7, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (recognizing that “uncertainty regarding the composition of the denominator in [the Court’s] ‘deprivation’ fraction has produced inconsistent pronouncements by the Court,” and that the relevant calculus is a “difficult question”).

 


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