John Paul Stevens

“ For petitioners, it is enough that a regulation imposes a temporary deprivation–no matter how brief–of all economically viable use to trigger a per se rule that a taking has occurred. Petitioners assert that our opinions in First English and Lucas have already endorsed their view, and that it is a logical application of the principle that the Takings Clause was “designed to bar Government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole.” ”

“ 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. ”

“ In rejecting petitioners’ per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.
A narrower rule that excluded the normal delays associated with processing permits, or that covered only delays of more than a year, would certainly have a less severe impact on prevailing practices, but it would still impose serious financial constraints on the planning process. ”

“ Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. ”

“ These cases stand for the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. ”

“ And the Court’s statement of its holding was equally unambiguous: “We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id., at 321 (emphasis added) . In fact, First English expressly disavowed any ruling on the merits of the takings issue because the California courts had decided the remedial question on the assumption that a taking had been alleged. ”

“ The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth. ”

“ Certainly, our holding that the permanent “obliteration of the value” of a fee simple estate constitutes a categorical taking does not answer the question whether a regulation prohibiting any economic use of land for a 32-month period has the same legal effect. Petitioners seek to bring this case under the rule announced in Lucas by arguing that we can effectively sever a 32-month segment from the remainder of each landowner’s fee simple estate, and then ask whether that segment has been taken in its entirety by the moratoria. ”

“ Hence, a permanent deprivation of the owner’s use of the entire area is a taking of “the parcel as a whole,” whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. ”

“ Of course, defining the property interest taken in terms of the very regulation being challenged is circular. With property so divided, every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical takings. Petitioners’ “conceptual severance” argument is unavailing because it ignores Penn Central’s admonition that in regulatory takings cases we must focus on “the parcel as a whole.” ”

“ United States, 177 F.3d 1360, 1367 (CA Fed. 1999) (record showed that market value of the entire parcel increased despite denial of permit to fill and develop lake-bottom property) . Such an increase makes sense in this context because property values throughout the Basin can be expected to reflect the added assurance that Lake Tahoe will remain in its pristine state. Since in some cases a 1-year moratorium may not impose a burden at all, we should not adopt a rule that assumes moratoria always force individuals to bear a special burden that should be shared by the public as a whole. ”

“ In fact, the consensus in the planning community appears to be that moratoria, or “interim development controls” as they are often called, are an essential tool of successful development. [33] Yet even the weak version of petitioners’ categorical rule would treat these interim measures as takings regardless of the good faith of the planners, the reasonable expectations of the landowners, or the actual impact of the moratorium on property values. ”

“ Land-use regulations are ubiquitous and most of them impact property values in some tangential way–often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights. [19] “This case does not present the ‘classi [c] taking’ in which the government directly appropriates private property for its own use,” Eastern Enterprises v. ”

“ For the same reason that we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically valuable use, we do not apply our precedent from the physical takings context to regulatory takings claims. ”

“ 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. ”

“ Mahon, 260 U.S. 393 (1922) , [20] that gave birth to our regulatory takings jurisprudence. [21] In subsequent opinions we have repeatedly and consistently endorsed Holmes’ observation that “if regulation goes too far it will be recognized as a taking.” Id., at 415. Justice Holmes did not provide a standard for determining when a regulation goes “too far,” but he did reject the view expressed in Justice Brandeis’ dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public. ”

“ In each situation, a regulation that affects only a portion of the parcel–whether limited by time, use, or space–does not deprive the owner of all economically beneficial use. [15]
The Court of Appeals distinguished Lucas as applying to the “ ‘relatively rare’ ” case in which a regulation denies all productive use of an entire parcel, whereas the moratoria involve only a “temporal ‘slice’ ” of the fee interest and a form of regulation that is widespread and well established. 216 F.3d, at 773—774. It also rejected petitioners’ argument that our decision in First English was controlling. ”

“ III Petitioners make only a facial attack on Ordinance 81—5 and Resolution 83—21. They contend that the mere enactment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to compensate her for the value of its use during that period. ”

“ The question presented is whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. [1] This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth. ”

“ Given this trend, the District Court predicted that “unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity.” [3]
Those areas in the Basin that have steeper slopes produce more runoff; therefore, they are usually considered “high hazard” lands. Moreover, certain areas near streams or wetlands known as “Stream Environment Zones” (SEZs) are especially vulnerable to the impact of development because, in their natural state, they act as filters for much of the debris that runoff carries. ”

“ The starting point for the court’s analysis should have been to ask whether there was a total taking of the entire parcel; if not, then Penn Central was the proper framework. [26]
An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner’s interest. See Restatement of Property §§7—9 (1936) . Both dimensions must be considered if the interest is to be viewed in its entirety. ”

“ Instead, the water is gathered and concentrated by such coverage. Larger amounts of water flowing off a driveway or a roof have more erosive force than scattered raindrops falling over a dispersed area–especially one covered with indigenous vegetation, which softens the impact of the raindrops themselves. ”

“ The Compact also contained a finding by the Legislatures of California and Nevada “that in order to make effective the regional plan as revised by [TRPA] , it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan.” ”

“ They cannot be considered as a “taking” in the constitutional sense’ ”) (quoting Danforth v. United States, 308 U.S. 271, 285 (1939) ) ) .
Neither Lucas, nor First English, nor any of our other regulatory takings cases compels us to accept petitioners’ categorical submission. In fact, these cases make clear that the categorical rule in Lucas was carved out for the “extraordinary case” in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry. ”

“ 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.
↑ . The Chief Justice’s 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. ”

“ City of Tiburon, 447 U.S. 255 (1980) , it then stated that a “regulation will constitute a taking when either: (1) it does not substantially advance a legitimate state interest; or (2) it denies the owner economically viable use of her land.” 34 F. Supp. 2d, at 1239. The District Court rejected the first alternative based on its finding that “further development on high hazard lands such as [petitioners’] would lead to significant additional damage to the lake.” ”

“ Moreover, because petitioners brought only a facial challenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking.
Contrary to the District Court, the Court of Appeals held that because the regulations had only a temporary impact on petitioners’ fee interest in the properties, no categorical taking had occurred. It reasoned:
“Property interests may have many different dimensions. ”

“ There is no plausible basis on which to distinguish a similar diminution in value that results from a temporary suspension of development.” Id., at 776—777.
↑ . 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. ”

“ 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. ”