OCTOBER TERM, 2001
Syllabus
TAHOE-SIERRA PRESERVATION COUNCIL, INC., ET AL.
v. TAHOE
REGIONAL PLANNING AGENCY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-1167. Argued January 7, 2002-Decided April 23, 2002
Respondent Tahoe Regional Planning Agency (TRPA) imposed two
moratoria, totaling 32 months, on development in the Lake Tahoe
Basin while formulating a comprehensive land-use plan for the area.
Petitioners, real estate owners affected by the moratoria and an
association representing such owners, filed parallel suits, later
consolidated, claiming that TRPA's actions constituted a taking of
their property without just compensation. The District Court found
that TRPA had not effected a "partial taking" under the analysis
set out in
Penn Central Transp. Co. v.
New York City,
438 U. S. 104;
however, it concluded that the moratoria did constitute a taking
under the categorical rule announced in
Lucas v.
South
Carolina Coastal Council, 505 U. S. 1003, because
TRPA temporarily deprived petitioners of all economically viable
use of their land. On appeal, TRPA successfully challenged the
District Court's takings determination. Finding that the only
question in this facial challenge was whether
Lucas' rule
applied, the Ninth Circuit held that because the regulations had
only a temporary impact on petitioners' fee interest, no
categorical taking had occurred; that
Lucas applied to the
relatively rare case in which a regulation permanently denies all
productive use of an entire parcel, whereas the moratoria involved
only a temporal slice of the fee interest; and that
First
English Evangelical Lutheran Church of Glendale v.
County of
Los Angeles, 482
U. S. 304, concerned the question whether compensation is an
appropriate remedy for a temporary taking, not whether or when such
a taking has occurred. The court also concluded that
Penn
Central's ad hoc balancing approach was the proper framework
for analyzing whether a taking had occurred, but that petitioners
had not challenged the District Court's conclusion that they could
not make out a claim under
Penn Central's factors.
Held: The moratoria ordered by TRPA are not
per se
takings of property requiring compensation under the Takings
Clause. Pp. 321-343.
(a) Although this Court's physical takings jurisprudence, for
the most part, involves the straightforward application of
per
se rules, its regulatory takings jurisprudence is characterized
by "essentially ad hoc,
303
factual inquiries,"
Penn Central, 438 U. S., at 124,
designed to allow "careful examination and weighing of all the
relevant circumstances,"
Palazzolo v.
Rhode Island,
533 U. S. 606,
636 (O'CONNOR, J., concurring). The longstanding distinction
between physical and regulatory takings makes it inappropriate to
treat precedent from one as controlling on the other. Petitioners
rely on
First English and
Lucas-both regulatory
takings cases-to argue for a categorical rule that whenever the
government imposes a deprivation of all economically viable use of
property, no matter how brief, it effects a taking. In
First
English, 482 U. S., at 315, 318, 321, the Court addressed the
separate remedial question of how compensation is measured once a
regulatory taking is established, but not the different and prior
question whether the temporary regulation was in fact a taking. To
the extent that the Court referenced that antecedent question, it
recognized that a regulation temporarily denying an owner all use
of her property might not constitute a taking if the denial was
part of the State's authority to enact safety regulations, or if it
were one of the normal delays in obtaining building permits,
changes in zoning ordinances, variances, and the like. Thus,
First English did not approve, and implicitly rejected,
petitioners' categorical approach. Nor is
Lucas dispositive
of the question presented. Its categorical rule-requiring
compensation when a regulation permanently deprives an owner of
"all economically beneficial uses" of his land, 505 U. S.,
at 1019-does not answer the question whether a regulation
prohibiting any economic use of land for 32 months must be
compensated. Petitioners attempt to bring this case under the rule
in
Lucas by focusing exclusively on the property during the
moratoria is unavailing. This Court has consistently rejected such
an approach to the "denominator" question. See,
e.
g., Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 497. To
sever a 32-month segment from the remainder of each fee simple
estate and then ask whether that segment has been taken in its
entirety would ignore
Penn Central's admonition to focus on
"the parcel as a whole," 438 U. S., at 130-131. Both dimensions of
a real property interest-the metes and bounds describing its
geographic dimensions and the term of years describing its temporal
aspect-must be considered when viewing the interest in its
entirety. A permanent deprivation of all use is a taking of the
parcel as a whole, but a temporary restriction causing a diminution
in value is not, for the property will recover value when the
prohibition is lifted.
Lucas was carved out for the
"extraordinary case" in which a regulation permanently deprives
property of all use; the default rule remains that a fact specific
inquiry is required in the regulatory taking context. Nevertheless,
the Court will consider petitioners' argument that the interest in
protecting property owners
304
Syllabus
from bearing public burdens "which, in all fairness and justice,
should be borne by the public as a whole,"
Armstrong v.
United States, 364
(b) "Fairness and justice" will not be better served by a
categorical rule that any deprivation of all economic use, no
matter how brief, constitutes a compensable taking. That rule would
apply to numerous normal delays in obtaining,
e. g.,
building permits, and would require changes in practices that have
long been considered permissible exercises of the police power.
Such an important change in the law should be the product of
legislative rulemaking, not adjudication. More importantly, for the
reasons set out in JUSTICE O'CONNOR'S concurring opinion in
Palazzolo, 533 U. S., at 636, the better approach to a
temporary regulatory taking claim requires careful examination and
weighing of all the relevant circumstances-only one of which is the
length of the delay. A narrower rule excluding normal delays in
processing permits, or covering only delays of more than a year,
would have a less severe impact on prevailing practices, but would
still impose serious constraints on the planning process. Moratoria
are an essential tool of successful development. The interest in
informed decisionmaking counsels against adopting a
per se
rule that would treat such interim measures as takings regardless
of the planners' good faith, the landowners' reasonable
expectations, or the moratorium's actual impact on property values.
The financial constraints of compensating property owners during a
moratorium may force officials to rush through the planning process
or abandon the practice altogether. And the interest in protecting
the decisional process is even stronger when an agency is
developing a regional plan than when it is considering a permit for
a single parcel. Here, TRPA obtained the benefit of comments and
criticisms from interested parties during its deliberations, but a
categorical rule tied to the deliberations' length would likely
create added pressure on decisionmakers to quickly resolve land-use
questions, disadvantaging landowners and interest groups less
organized or familiar with the planning process. Moreover, with a
temporary development ban, there is less risk that individual
landowners will be singled out to bear a special burden that should
be shared by the public as a whole. n may be true that a moratorium
lasting more than one year should be viewed with special
skepticism, but the District Court found that the instant delay was
not unreasonable. The restriction's duration is one factor for a
court to consider in appraising regulatory takings claims, but with
respect to that factor, the temptation to adopt
per se rules
in either direction must be resisted. Pp. 333-342.
216 F.3d
764, affirmed.
305
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA and
THOMAS, JJ., joined,
post, p. 343. THOMAS, J., filed a
dissenting opinion, in which SCALIA, J., joined,
post, p.
355.
Michael M. Berger argued the cause for petitioners.
With him on the briefs were
Gideon Kanner and
Lawrence
John G.
Roberts, Jr., argued the cause for
respondents.
With him on the brief were
Frankie Sue Del Papa, Attorney
General of Nevada, and
William J. Frey, Deputy
Attorney General,
Bill Lockyer, Attorney General of
California,
Richard M. Frank, Chief Assistant Attorney
General,
Matthew Rodriquez, Senior Assistant Attorney
General, and
Daniel L. Siegel, Supervising Deputy Attorney
General,
E. Clement Shute, Jr., Fran M. Layton, Ellison Folk,
John L. Marshall, and
Richard J. Lazarus.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief were
Acting Assistant Attorney General Cruden, Deputy Solicitor General
Kneedler, and Malcolm L. Stewart. *
*Briefs of
amici curiae urging reversal were filed for
the American Association of Small Property Owners et al. by
Martin S.
Kaufman; for the American Farm Bureau
Federation et al. by
John J. Rademacher and
Nancy McDonough; for the Institute for Justice by
William
H. Mellor, Clint Bolick, Scott Bullock, and
Richard A.
Epstein; for the National Association of Home Builders by
Christopher G.
Senior and
David Crump; for the
Pacific Legal Foundation et al. by
R. S.
Radford, June
Babiracki Barlow, and
Sonia M. Younglove; and for the
Washington Legal Foundation by
Daniel J. Popeo,
Richard A. Samp, and
Douglas B. Levene.
Briefs of
amici curiae urging affirmance were filed for
the State of Vermont et al. by
William H. Sorrell, Attorney
General of Vermont, and
Bridget Asay, Assistant Attorney
General, and by the Attorneys General for their respective
jurisdictions as follows:
Bruce M. Botelho of Alaska,
Janet Napolitano of Arizona,
Richard Blumenthal of
Connecticut,
Robert A. Butterworth of Florida,
Earl I.
Anzai of Hawaii,
Thomas J. Miller of Iowa,
Richard P. Ieyoub of Louisiana,
J. Joseph Curran,
Jr., of Maryland,
306
JUSTICE STEVENS delivered the opinion of the Court.
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. The
first, Ordinance 81-5, was effective from August 24, 1981, until
August 26, 1983, whereas the second more restrictive Resolution
83-21 was in effect from August 27, 1983, until April 25, 1984. As
a result of these two directives, virtually all development on a
substantial portion of the property subject to TRPA's jurisdiction
was prohibited for a period of 32 months. Although the question we
decide relates only to that 32-month period, a brief description of
the events leading up to the moratoria and a comment on the two
per-
Thomas F.
Reilly of Massachusetts,
Mike
McGrath of Montana,
John J. Farmer, Jr.,
of New Jersey,
Eliot Spitzer of New York,
Roy Cooper
of North Carolina,
W A. Drew Edmondson of Oklahoma,
Hardy
Myers of Oregon,
Anabelle Rodriguez of Puerto Rico,
Sheldon Whitehouse of Rhode Island,
Mark Barnett of
South Dakota,
Paul G.
Summers of Tennessee,
John
Cornyn of Texas, and
Christine O.
Gregoire of
Washington; for the American Planning Association et al. by
Robert H. Freilich; for the Council of State Governments et
al. by
Richard Ruda and
Timothy J.
Dowling; for the National Audubon Society et al. by
John
D. Echeverria; and for Thomas Dunne et al. by
Karl M.
Manheim.
Nancie G.
Marzulla filed a brief for Defenders of
Property Rights as
amicus curiae.
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 (1897);
Webb's Fabulous Pharmacies,
Inc. v.
Beckwith, 449 U. S. 155, 160
(1980).
307
manent plans that TRP A adopted thereafter will clarify the
narrow scope of our holding.
I
The relevant facts are undisputed. The Court of Appeals, while
reversing the District Court on a question of law, accepted all of
its findings of fact, and no party challenges those findings. All
agree that Lake Tahoe is "uniquely beautiful," 34 F. Supp. 2d 1226,
1230 (Nev. 1999), that President Clinton was right to call it a
"'national treasure that must be protected and preserved,'"
ibid., and that Mark Twain aptly described the clarity of
its waters as "'not
merely transparent, but dazzlingly,
brilliantly so,'"
ibid. (emphasis added) (quoting M. Twain,
Roughing It 174-175 (1872)).
Lake Tahoe's exceptional clarity is attributed to the absence of
algae that obscures the waters of most other lakes. Historically,
the lack of nitrogen and phosphorous, which nourish the growth of
algae, has ensured the transparency of its waters.2 Unfortunately,
the lake's pristine state has deteriorated rapidly over the past 40
years; increased land development in the Lake Tahoe Basin (Basin)
has threatened the "'noble sheet of blue water'" beloved by Twain
and countless others. 34 F. Supp. 2d, at 1230. As the District
Court found, "[d]ramatic decreases in clarity first began to be
noted in the late 1950's/early 1960's, shortly after development at
the lake began in earnest."
Id., at 1231. The lake's
unsurpassed beauty, it seems, is the wellspring of its undoing.
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).
308
The upsurge of development in the area has caused "increased
nutrient loading of the lake largely because of the increase in
impervious coverage of land in the Basin resulting from that
development."
Ibid.
"Impervious coverage-such as asphalt, concrete, buildings, and
even packed dirt-prevents precipitation from being absorbed by the
soil. 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."
Ibid.
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. Because "[t]he most
obvious response to this problem ... is to restrict development
around the lake-especially in SEZ lands, as well as in areas
already naturally prone to runoff,"
id., at 1232,
conservation efforts have focused on controlling growth in these
high hazard areas.
In the 1960's, when the problems associated with the burgeoning
development began to receive significant atten-
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.
309
tion, jurisdiction over the Basin, which occupies 501 square
miles, was shared by the States of California and Nevada, five
counties, several municipalities, and the Forest Service of the
Federal Government. In 1968, the legislatures of the two States
adopted the Tahoe Regional Planning Compact, see 1968 Cal. Stats.
no. 998, p. 1900, § 1; 1968 Nev. Stats. p. 4, which Congress
approved in 1969, Pub. L. 91-148, 83 Stat. 360. The compact set
goals for the protection and preservation of the lake and created
TRP A as the agency assigned "to coordinate and regulate
development in the Basin and to conserve its natural resources."
Lake Country Estates, Inc. v.
Tahoe Regional Planning
Agency, 440 U. S.
391, 394 (1979).
Pursuant to the compact, in 1972 TRP A adopted a Land Use
Ordinance that divided the land in the Basin into seven "land
capability districts," based largely on steepness but also taking
into consideration other factors affecting runoff. Each district
was assigned a "land coverage coefficient-a recommended limit on
the percentage of such land that could be covered by impervious
surface." Those limits ranged from 1% for districts 1 and 2 to 30%
for districts 6 and 7. Land in districts 1,2, and 3 is
characterized as "high hazard" or "sensitive," while land in
districts 4, 5, 6, and 7 is "low hazard" or "non-sensitive." The
SEZ lands, though often treated as a separate category, were
actually a subcategory of district 1. 34 F. Supp. 2d, at 1232.
Unfortunately, the 1972 ordinance allowed numerous exceptions
and did not significantly limit the construction of new residential
housing. California became so dissatisfied with TRP A that it
withdrew its financial support and unilaterally imposed stricter
regulations on the part of the Basin located in California.
Eventually the two States, with the approval of Congress and the
President, adopted an extensive amendment to the compact that
became effective on December 19, 1980. Pub. L. 96-551, 94 Stat.
3233; Cal.
310
Govt. Code Ann. § 66801 (West Supp. 2002); Nev. Rev. Stat. §
277.200 (1980).
The 1980 Tahoe Regional Planning Compact (Compact) redefined the
structure, functions, and voting procedures of TRPA, App. 37, 94
Stat. 3235-3238; 34 F. Supp. 2d, at 1233, and directed it to
develop regional "environmental threshold carrying capacities"-a
term that embraced "standards for air quality, water quality, soil
conservation, vegetation preservation and noise." 94 Stat. 3235,
3239. The Compact provided that TRP A "shall adopt" those standards
within 18 months, and that "[w]ithin 1 year after" their adoption
(i.
e., by June 19, 1983), it "shall" adopt an amended
regional plan that achieves and maintains those carrying
capacities.
Id., at 3240. 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 [TRP A], 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."
Id., at 3243. Accordingly, for the period
prior to the adoption of the final plan ("or until May 1, 1983,
whichever is earlier"), the Compact itself prohibited the
development of new subdivisions, condominiums, and apartment
buildings, and also prohibited each city and county in the Basin
from granting any more permits in 1981, 1982, or 1983 than had been
granted in 1978.4
During this period TRP A was also working on the development of
a regional water quality plan to comply with the Clean Water Act,
33 U. S. C. § 1288 (1994 ed.). Despite
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 (Nev. 1999).
311
the fact that TRP A performed these obligations in "good faith
and to the best of its ability," 34 F. Supp. 2d, at 1233, after a
few months it concluded that it could not meet the deadlines in the
Compact. On June 25, 1981, it therefore enacted Ordinance 81-5
imposing the first of the two moratoria on development that
petitioners challenge in this proceeding. The ordinance provided
that it would become effective on August 24, 1981, and remain in
effect pending the adoption of the permanent plan required by the
Compact. App. 159, 191.
The District Court made a detailed analysis of the ordinance,
noting that it might even prohibit hiking or picnicking on SEZ
lands, but construed it as essentially banning any construction or
other activity that involved the removal of vegetation or the
creation of land coverage on all SEZ lands, as well as on class
1,2, and 3 lands in California. 34 F. Supp. 2d, at 1233-1235. Some
permits could be obtained for such construction in Nevada if
certain findings were made.
Id., at 1235. It is undisputed,
however, that Ordinance 81-5 prohibited the construction of any new
residences on SEZ lands in either State and on class 1, 2, and 3
lands in California.
Given the complexity of the task of defining "environmental
threshold carrying capacities" and the division of opinion within
TRP A's governing board, the District Court found that it was
"unsurprising" that TRP A failed to adopt those thresholds until
August 26, 1982, roughly two months after the Compact deadline.
Ibid. Under a liberal reading of the Compact, TRP A then had
until August 26, 1983, to adopt a new regional plan. 94 Stat. 3240.
"Unfortunately, but again not surprisingly, no regional plan was in
place as of that date." 34 F. Supp. 2d, at 1235. TRPA therefore
adopted Resolution 83-21, "which completely suspended all project
reviews and approvals, including the acceptance of new proposals,"
and which remained in effect until a new regional plan was adopted
on April 26, 1984. Thus, Resolu-
312
tion 83-21 imposed an 8-month moratorium prohibiting all
construction on high hazard lands in either State. In combination,
Ordinance 81-5 and Resolution 83-21 effectively prohibited all
construction on sensitive lands in California and on all SEZ lands
in the entire Basin for 32 months, and on sensitive lands in Nevada
(other than SEZ lands) for eight months. It is these two moratoria
that are at issue in this case.
On the same day that the 1984 plan was adopted, the State of
California filed an action seeking to enjoin its implementation on
the ground that it failed to establish land-use controls
sufficiently stringent to protect the Basin.
Id., at 1236.
The District Court entered an injunction that was upheld by the
Court of Appeals and remained in effect until a completely revised
plan was adopted in 1987. Both the 1984 injunction and the 1987
plan contained provisions that prohibited new construction on
sensitive lands in the Basin. As the case comes to us, however, we
have no occasion to consider the validity of those provisions.
II
Approximately two months after the adoption of the 1984 plan,
petitioners filed parallel actions against TRP A and other
defendants in federal courts in Nevada and California that were
ultimately consolidated for trial in the District of Nevada. The
petitioners include the Tahoe-Sierra Preservation Council, Inc., a
nonprofit membership corporation representing about 2,000 owners of
both improved and unimproved parcels of real estate in the Lake
Tahoe Basin, and a class of some 400 individual owners of vacant
lots located either on SEZ lands or in other parts of districts 1,
2, or 3. Those individuals purchased their properties prior to the
effective date of the 1980 Compact, App. 34, primarily for the
purpose of constructing "at a time of their choosing" a
single-family home "to serve as a permanent, retirement or
313
vacation residence,"
id., at 36. When they made those
purchases, they did so with the understanding that such
construction was authorized provided that "they complied with all
reasonable requirements for building."
Ibid.5
Petitioners' complaints gave rise to protracted litigation that
has produced four opinions by the Court of Appeals for the Ninth
Circuit and several published District Court opinions.6 For present
purposes, however, we need only describe those courts' disposition
of the claim that three actions taken by TRPA-Ordinance 81-5,
Resolution 83-21, and the 1984 regional plan-constituted takings of
petitioners' property without just compensation.7 Indeed, the
challenge to the 1984 plan is not before us because both the
District Court and the Court of Appeals held that it was the
federal injunction against implementing that plan, rather than the
plan itself, that caused the post-1984 injuries that petitioners
allegedly suffered, and those rulings are not encompassed within
our limited grant of certiorari. 8 Thus,
5 As explained,
supra, at 309, 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.
6911
F.2d 1331 (1990);
938 F.2d
153 (1991);
34 F.3d
753 (1994);
216 F.3d
764 (2000); 611 F. Supp. 110 (1985); 808 F. Supp. 1474 (1992);
808 F. Supp. 1484 (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 I-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 (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'
314
we limit our discussion to the lower courts' disposition of the
claims based on the 2-year moratorium (Ordinance 81-5) and the
ensuing 8-month moratorium (Resolution 83-21).
The District Court began its constitutional analysis by
identifying the distinction between a direct government
appropriation of property without just compensation and a
government regulation that imposes such a severe restriction on the
owner's use of her property that it produces "nearly the same
result as a direct appropriation." 34 F. Supp. 2d, at 1238. The
court noted that all of the claims in this case "are of the
'regulatory takings' variety."
Id., at 1239. Citing our
decision in
Agins v.
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."
Id., at 1240.9 With
respect
injuries,
post, at 343-345. 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 (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
315
to the second alternative, the court first considered whether
the analysis adopted in
Penn Central Transp. Co. v.
New York
City, 438 U. S. 104 (1978),
would lead to the conclusion that TRPA had effected a "partial
taking," and then whether those actions had effected a "total
taking." 10
Emphasizing the temporary nature of the regulations, the
testimony that the "average holding time of a lot in the Tahoe area
between lot purchase and home construction is twenty-five years,"
and the failure of petitioners to offer specific evidence of harm,
the District Court concluded that "consideration of the
Penn
Central factors clearly leads to the conclusion that there was
no taking." 34 F. Supp. 2d, at 1240. In the absence of evidence
regarding any of the individual plaintiffs, the court evaluated the
"average" purchasers' intent and found that such purchasers "did
not have reasonable, investment-backed expectations that they would
be able to build single-family homes on their land within the
six-year period involved in this lawsuit."
Id., at
1241.11
how a more proportional response could have been adopted. Given
that TRPA's actions had widespread 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 (2001).
11 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." 34 F. Supp. 2d, at 1241.
316
The District Court had more difficulty with the "total taking"
issue. Although it was satisfied that petitioners' property did
retain some value during the moratoria,12 it found that they had
been temporarily deprived of "all economically viable use of their
land."
Id., at 1245. The court concluded that those actions
therefore constituted "categorical" takings under our decision in
Lucas v.
South Carolina Coastal Council, 505 U. S. 1003 (1992).
It rejected TRPA's response that Ordinance 81-5 and Resolution 8321
were "reasonable temporary planning moratoria" that should be
excluded from
Lucas' categorical approach. The court thought
it "fairly clear" that such interim actions would not have been
viewed as takings prior to our decisions in
Lucas and
First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U. S. 304 (1987),
because "[z]oning boards, cities, counties and other agencies used
them all the time to 'maintain the status quo pending study and
governmental decision making.'" 34 F. Supp. 2d, at 1248-1249
(quoting
Williams v.
Central, 907 P. 2d 701, 706
(Colo. App. 1995)). After expressing uncertainty as to whether
those cases required a holding that moratoria on development
automatically effect takings, the court concluded that TRP A's
actions did so, partly because neither the ordinance nor the
resolution, even though intended to be temporary from the
beginning, contained an
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.
317
express termination date. 34 F. Supp. 2d, at 1250-1251.13
Accordingly, it ordered TRPA to pay damages to most petitioners for
the 32-month period from August 24, 1981, to April 25, 1984, and to
those owning class 1, 2, or 3 property in Nevada for the 8-month
period from August 27, 1983, to April 25, 1984.
Id., at
1255.
Both parties appealed. TRP A successfully challenged the
District Court's takings determination, and petitioners
unsuccessfully challenged the dismissal of their claims based on
the 1984 and 1987 plans. Petitioners did not, however, challenge
the District Court's findings or conclusions concerning its
application of
Penn Central. With respect to the two
moratoria, the Ninth Circuit noted that petitioners had expressly
disavowed an argument "that the regulations constitute a taking
under the ad hoc balancing approach described in
Penn
Central" and that they did not "dispute that the restrictions
imposed on their properties are appropriate means of securing the
purpose set forth in the Compact." 14 Accordingly, the only
question before the court was "whether the rule set forth in
Lucas applies-that is, whether a cate-
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.
14216 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
(1992)]. See
Tahoe-Sierra Preservation Council, 34 F. Supp.
2d at 1238-45. 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.
318
gorical taking occurred because Ordinance 81-5 and Resolution
83-21 denied the plaintiffs 'all economically beneficial or
productive use of land.'"
216 F.3d
764, 773 (2000). 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. For
example, the dimensions of a property interest may include a
physical dimension (which describes the size and shape of the
property in question), a functional dimension (which describes the
extent to which an owner may use or dispose of the property in
question), and a temporal dimension (which describes the duration
of the property interest). At base, the plaintiffs' argument is
that we should conceptually sever each plaintiff's fee interest
into discrete segments in at least one of these dimensions-the
temporal oneand treat each of those segments as separate and
distinct property interests for purposes of takings analysis. Under
this theory, they argue that there was a categorical taking of one
of those temporal segments." Id., at 774.
Putting to one side "cases of physical invasion or occupation,"
ibid., the court read our cases involving regulatory taking
claims to focus on the impact of a regulation on the parcel as a
whole. In its view a "planning regulation that prevents the
development of a parcel for a temporary period of time is
conceptually no different than a land-use restriction that
permanently denies all use on a discrete portion of property, or
that permanently restricts a type
319
of use across all of the parcel."
Id., at 776. In each
situation, a regulation that affects only a portion of the
parcelwhether 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. According to the Court of
Appeals,
First English concerned the question whether
compensation is an appropriate remedy for a temporary taking and
not whether or when such a taking has occurred. 216 F. 3d, at 778.
Faced squarely with the question whether a taking had occurred, the
court held that
Penn Central was the appropriate framework
for analysis. Petitioners, however, had failed to challenge the
District
15 The Court of Appeals added:
"Each of these three types of regulation will have an impact on
the parcel's value, because each will affect an aspect of the
owner's 'use' of the property-by restricting
when the 'use'
may occur,
where the 'use' may occur, or
how the
'use' may occur. Prior to
Agins [v.
City of Tiburon,
447 U. S. 255
(1980)], the Court had already rejected takings challenges to
regulations eliminating all 'use' on a portion of the property, and
to regulations restricting the type of 'use' across the breadth of
the property.
See Penn Central, 438 U. S. at 130-31 ... ;
Keystone Bituminous Coal Ass'n, 480 U. S. at 498-99 ... ;
Village of Euclid v.
Ambler Realty Co., 272 U. S. 365, 384, 397
... (1926) (75% diminution in value caused by zoning law);
see
also William C.
Haas &
Co. v.
City
&
County of San Francisco, 605 F.2d
1117, 1120 (9th Cir. 1979) (value reduced from $2,000,000 to
$100,000). In those cases, the Court 'uniformly reject[ed] the
proposition that diminution in property value, standing alone, can
establish a "taking.'"
Penn Central, 438 U. S. at 131 ... ;
see also Concrete Pipe and Products, Inc. v.
Construction
Laborers Pension Trust, 508 U. S. 602, 645 ...
(1993). 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.
320
Court's conclusion that they could not make out a taking claim
under the
Penn Central factors.
Over the dissent of five judges, the Ninth Circuit denied a
petition for rehearing en bane.
228 F.3d
998 (2000). In the dissenters' opinion, the panel's holding was
not faithful to this Court's decisions in
First English and
Lucas, nor to Justice Holmes admonition in
Pennsylvania
Coal Co. v.
Mahon, 260 U. S. 393, 416
(1922), that "'a strong public desire to improve the public
condition is not enough to warrant achieving the desire by a
shorter cut than the constitutional way of paying for the change.'"
228 F. 3d, at 1003. Because of the importance of the case, we
granted certiorari limited to the question stated at the beginning
of this opinion. 533 U. S. 948 (2001). We now affirm.
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. Hence, they "face an uphill
battle,"
Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 495
(1987), that is made especially steep by their desire for a
categorical rule requiring compensation whenever the government
imposes such a moratorium on development. Under their proposed
rule, there is no need to evaluate the landowners'
investment-backed expectations, the actual impact of the regulation
on any individual, the importance of the public interest served by
the regulation, or the reasons for imposing the temporary
restriction. For petitioners, it is enough that a regulation
imposes a temporary deprivationno 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
321
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."
Armstrong v.
United States, 364 U. S.
40, 49 (1960).
We shall first explain why our cases do not support their
proposed categorical rule-indeed, fairly read, they implicitly
reject it. Next, we shall explain why the
Armstrong
principle requires rejection of that rule as well as the less
extreme position advanced by petitioners at oral argument. In our
view the answer to the abstract question whether a temporary
moratorium effects a taking is neither "yes, always" nor "no,
never"; the answer depends upon the particular circumstances of the
case.16 Resisting "[t]he temptation to adopt what amount to
per
se rules in either direction,"
Palazzolo v.
Rhode
Island, 533 U. S.
606, 636 (2001) (O'CONNOR, J., concurring), we conclude that
the circumstances in this case are best analyzed within the
Penn
Central framework.
IV
The text of the Fifth Amendment itself provides a basis for
drawing a distinction between physical takings and regulatory
takings. Its plain language requires the payment of compensation
whenever the government acquires private property for a public
purpose, whether the acquisition is the result of a condemnation
proceeding or a physical appropriation. But the Constitution
contains no comparable reference to regulations that prohibit a
property owner from
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 349. 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 317, and n. 14.
322
making certain uses of her private propertyP Our jurisprudence
involving condemnations and physical takings is as old as the
Republic and, for the most part, involves the straightforward
application of
per se rules. Our regulatory takings
jurisprudence, in contrast, is of more recent vintage and is
characterized by "essentially ad hoc, factual inquiries,"
Penn
Central, 438 U. S., at 124, designed to allow "careful
examination and weighing of all the relevant circumstances."
Palazzolo, 533 U. S., at 636 (O'CONNOR, J., concurring).
When the government physically takes possession of an interest
in property for some public purpose, it has a categorical duty to
compensate the former owner,
United States v.
Pewee Coal
Co., 341 U. S.
114, 115 (1951), regardless of whether the interest that is
taken constitutes an entire parcel or merely a part thereof. Thus,
compensation is mandated when a leasehold is taken and the
government occupies the property for its own purposes, even though
that use is temporary.
United States v.
General Motors
Corp., 323 U. S.
373 (1945);
United States v.
Petty Motor Co.,
327 U. S. 372
(1946). Similarly, when the government appropriates part of a
rooftop in order to provide cable TV access for apartment tenants,
Loretto v.
Teleprompter Manhattan CATV Corp.,
458 U. S. 419
(1982); or when its planes use private airspace to approach a
government airport,
United States v.
Causby, 328 U. S. 256 (1946), it
is required to pay for that share no matter how small. But a
government regulation that merely prohibits landlords from
evicting
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.
323
tenants unwilling to pay a higher rent,
Block v.
Hirsh, 256 U. S. 135 (1921); that bans certain private uses
of a portion of an owner's property,
Village of Euclid v.
Ambler Realty Co., 272 U. S. 365 (1926);
Keystone Bituminous Coal Assn. v.
DeBenedictis,
480 U. S. 470
(1987); or that forbids the private use of certain airspace,
Penn Central Transp. Co. v.
New York City, 438 U. S. 104 (1978),
does not constitute a categorical taking. "The first category of
cases requires courts to apply a clear rule; the second necessarily
entails complex factual assessments of the purposes and economic
effects of government actions."
Yee v.
Escondido,
503 U. S. 519,
523 (1992). See also
Loretto, 458 U. S., at 440;
Keystone, 480 U. S., at 489, n. 18.
This longstanding distinction between acquisitions of property
for public use, on the one hand, and regulations prohibiting
private uses, on the other, makes it inappropriate to treat cases
involving physical takings as controlling precedents for the
evaluation of a claim that there has been a "regulatory taking," 18
and vice versa. 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 con-
18 To illustrate the importance of the distinction, the Court in
Loretto, 458 U. S., at 430, compared two wartime takings
cases,
United States v.
Pewee Coal Co., 341 U. S. 114, 116
(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 (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.
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 (citing
Penn
Central).
324
text to regulatory takings claims. 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.
Apfel, 524 U. S. 498, 522
(1998); instead the interference with property rights "arises from
some public program adjusting the benefits and burdens of eco-
19 According to THE CHIEF JUSTICE'S dissent, even a temporary,
useprohibiting regulation should be governed by our physical
takings cases because, under
Lucas v.
South Carolina
Coastal Council, 505 U. S. 1003, 1017
(1992), "from the landowner's point of view," the moratorium is the
functional equivalent of a forced leasehold,
post, at 348.
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.
THE CHIEF JUSTICE stretches
Lucas' "equivalence" language
too far.
For even a regulation that constitutes only a minor infringement
on property may, from the landowner's perspective, be the
functional equivalent of an appropriation.
Lucas carved out
a narrow exception to the rules governing regulatory takings for
the "extraordinary circumstance" of a permanent deprivation of all
beneficial use. The exception was only partially justified based on
the "equivalence" theory cited by THE CHIEF JUSTICE'S dissent. It
was also justified on the theory that, in the "relatively rare
situations where the government has deprived a landowner of all
economically beneficial uses," it is less realistic to assume that
the regulation will secure an "average reciprocity of advantage,"
or that government could not go on if required to pay for every
such restriction. 505 U. S., at 1017-1018. But as we explain,
infra, at 339-341, these assumptions hold true in the
context of a moratorium.
325
nomic life to promote the common good,"
Penn Central, 438
U. S., at 124.
Perhaps recognizing this fundamental distinction, petitioners
wisely do not place all their emphasis on analogies to physical
takings cases. Instead, they rely principally on our decision in
Lucas v.
South Carolina Coastal Council, 505 U. S. 1003 (1992)-a
regulatory takings case that, nevertheless, applied a categorical
rule-to argue that the
Penn Central framework is
inapplicable here. A brief review of some of the cases that led to
our decision in
Lucas, however, will help to explain why the
holding in that case does not answer the question presented
here.
As we noted in
Lucas, it was Justice Holmes' opinion in
Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393 (1922),20
that gave birth to our regulatory takings jurisprudence.21
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. 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
(1922), it was generally thought that the Takings Clause reached
only a 'direct appropriation' of property,
Legal Tender
Cases, 12 Wall. 457, 551 (1871), or the functional equivalent
of a 'practical ouster of [the owner's] possession,'
Transportation Co. v.
Chicago, 99 U. S. 635, 642 (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. 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. 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
326
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.22 After
Mahon, neither a
physical appropriation nor a public use has ever been a necessary
component of a "regulatory taking."
In the decades following that decision, we have "generally
eschewed" any set formula for determining how far is too far,
choosing instead to engage in "'essentially ad hoc, factual
inquiries.'"
Lucas, 505 U. S., at 1015 (quoting
Penn
Central, 438 U. S., at 124). Indeed, we still resist the
temptation to adopt
per se rules in our cases involving
partial regulatory takings, preferring to examine "a number of
factors" rather than a simple "mathematically precise" formula.23
Justice Brennan's opinion for the Court in
Penn
far it will be recognized as a taking.'
Ibid." 505 U. S.,
at 1014 (citation omitted).
22Justice 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 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 (dissenting opinion).
23 In her concurring opinion in
Palazzolo, 533 U. S., at
633, 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
327
Central did, however, make it clear that even though
multiple factors are relevant in the analysis of regulatory takings
claims, in such cases we must focus on "the parcel as a whole":
"'Taking' jurisprudence does not divide a single parcel into
discrete segments and attempt to determine whether rights in a
particular segment have been entirely abrogated. In deciding
whether a particular governmental action has effected a taking,
this Court focuses rather both on the character of the action and
on the nature and extent of the interference with rights in the
parcel as a whole-here, the city tax block designated as the
'landmark site.'" Id., at 130-131.
This requirement that "the aggregate must be viewed in its
entirety" explains why, for example, a regulation that prohibited
commercial transactions in eagle feathers, but did not bar other
uses or impose any physical invasion or restraint upon them, was
not a taking.
Andrus v.
Allard, 444 U. S. 51, 66 (1979).
It also clarifies why restrictions on the use of only limited
portions of the parcel, such as setback ordinances,
Gorieb
v.
Fox, 274 U.
S. 603 (1927), or a requirement that coal pillars be left in
place to prevent mine subsidence,
Keystone Bituminous Coal
Assn. v.
DeBenedictis, 480 U. S., at 498, were not
considered regulatory takings. In each of these cases, we affirmed
that "where an owner possesses a full 'bundle' of property rights,
the destruction of one 'strand' of the bundle is not a taking."
Andrus, 444 U. S., at 65-66.
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. "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.
328
While the foregoing cases considered whether particular
regulations had "gone too far" and were therefore invalid, none of
them addressed the separate remedial question of how compensation
is measured once a regulatory taking is established. In his
dissenting opinion in
San Diego Gas & Elec. Co. v.
San Diego, 450
U. S. 621, 636 (1981), Justice Brennan identified that question
and explained how he would answer it:
"The constitutional rule I propose requires that, once a court
finds that a police power regulation has effected a 'taking,' the
government entity must pay just compensation for the period
commencing on the date the regulation first effected the 'taking,'
and ending on the date the government entity chooses to rescind or
otherwise amend the regulation." Id., at 658.
Justice Brennan's proposed rule was subsequently endorsed by the
Court in
First English, 482 U. S., at 315, 318, 321.
First English was certainly a significant decision, and
nothing that we say today qualifies its holding. Nonetheless, it is
important to recognize that we did not address in that case the
quite different and logically prior question whether the temporary
regulation at issue had in fact constituted a taking.
In
First English, the Court unambiguously and repeatedly
characterized the issue to be decided as a "compensation question"
or a "remedial question."
Id., at 311 ("The disposition of
the case on these grounds isolates the remedial question for our
consideration"); see also
id., at 313, 318. 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
329
merits of the takings issue because the California courts had
decided the remedial question on the assumption that a taking had
been alleged.
Id., at 312-313 ("We reject appellee's
suggestion that ... we must independently evaluate the adequacy of
the complaint and resolve the takings claim on the merits before we
can reach the remedial question"). After our remand, the California
courts concluded that there had not been a taking,
First English
Evangelical Church of Glendale v.
County of Los Angeles,
210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989), and we declined
review of that decision, 493 U. S. 1056 (1990).
To the extent that the Court in
First English referenced
the antecedent takings question, we identified two reasons why a
regulation temporarily denying an owner all use of her property
might not constitute a taking. First, we recognized that "the
county might avoid the conclusion that a compensable taking had
occurred by establishing that the denial of all use was insulated
as a part of the State's authority to enact safety regulations."
482 U. S., at 313. Second, we limited our holding "to the facts
presented" and recognized "the quite different questions that would
arise in the case of normal delays in obtaining building permits,
changes in zoning ordinances, variances, and the like which [were]
not before us."
Id., at 321. Thus, our decision in
First
English surely did not approve, and implicitly rejected, the
categorical submission that petitioners are now advocating.
Similarly, our decision in
Lucas is not dispositive of
the question presented. Although
Lucas endorsed and applied
a categorical rule, it was not the one that petitioners propose.
Lucas purchased two residential lots in 1988 for $975,000. These
lots were rendered "valueless" by a statute enacted two years
later. The trial court found that a taking had occurred and ordered
compensation of $1,232,387.50, representing the value of the fee
simple estate, plus interest. As the statute read at the time of
the trial, it effected a taking that "was unconditional and
permanent." 505 U. S.,
330
at 1012. While the State's appeal was pending, the statute was
amended to authorize exceptions that might have allowed Lucas to
obtain a building permit. Despite the fact that the amendment gave
the State Supreme Court the opportunity to dispose of the appeal on
ripeness grounds, it resolved the merits of the permanent takings
claim and reversed. Since "Lucas had no reason to proceed on a
'temporary taking' theory at trial," we decided the case on the
permanent taking theory that both the trial court and the State
Supreme Court had addressed.
Ibid.
The categorical rule that we applied in
Lucas states that
compensation is required when a regulation deprives an owner of
"all economically beneficial uses" of his land.
Id.,
at 1019. Under that rule, a statute that "wholly eliminated the
value" of Lucas' fee simple title clearly qualified as a taking.
But our holding was limited to "the extraordinary circumstance when
no productive or economically beneficial use of land is
permitted."
Id., at 1017. The emphasis on the word "no" in
the text of the opinion was, in effect, reiterated in a footnote
explaining that the categorical rule would not apply if the
diminution in value were 95% instead of 100%.
Id., at 1019,
n. 8.24 Anything less than a "complete elimination of value," or a
"total loss," the Court acknowledged, would require the kind of
analysis applied in
Penn Central. Lucas, 505 U. S., at
1019-1020, n. 8.25
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
24JU8TICE KENNEDY concurred in the judgment on the basis of the
regulation's impact on "reasonable, investment-backed
expectations." 505
25 It is worth noting that
Lucas underscores the
difference between physical and regulatory takings. See
supra, at 322-325. 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.
331
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. 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." 438 U. S.,
at 130131. We have consistently rejected such an approach to the
"denominator" question. See
Keystone, 480 U. S., at 497. See
also
Concrete Pipe &
Products of Cal., Inc. v.
Construction Laborers Pension Trust for Southern Cal.,
508 U. S. 602,
644 (1993) ("To the extent that any portion of property is taken,
that portion is always taken in its entirety; the relevant
question, however, is whether the property taken is all, or only a
portion of, the parcel in question"). Thus, the District Court
erred when it disaggregated petitioners' property into temporal
segments corresponding to the regulations at issue and then
analyzed whether petitioners were deprived of all economically
viable use during each period. 34 F. Supp. 2d, at 1242-1245. 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
26 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
351.
332
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. 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. Cf.
Agins v.
City of Tiburon, 447 U. S., at 263, n. 9
("Even if the appellants' ability to sell their property was
limited during the pendency of the condemnation proceeding, the
appellants were free to sell or develop their property when the
proceedings ended. Mere fluctuations in value during the process of
governmental decisionmaking, absent extraordinary delay, are
'incidents of ownership. 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.
Nevertheless, we will consider whether the interest in protecting
individual property owners from bearing public burdens "which, in
all fairness and justice, should be borne by the public as a
whole,"
Armstrong v.
United States, 364 U. S., at 49,
justifies creating a new rule for these circumstances.27
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. It is nevertheless
perfectly clear that Justice Black's oft-quoted comment about the
underlying purpose of the guarantee that private prop-
333
v
Considerations of "fairness and justice" arguably could support
the conclusion that TRP A's moratoria were takings of petitioners'
property based on any of seven different theories. First, even
though we have not previously done so, we might now announce a
categorical rule that, in the interest of fairness and justice,
compensation is required whenever government temporarily deprives
an owner of all economically viable use of her property. Second, we
could craft a narrower rule that would cover all temporary landuse
restrictions except those "normal delays in obtaining building
permits, changes in zoning ordinances, variances, and the like"
which were put to one side in our opinion in
First English,
482 U. S., at 321. Third, we could adopt a rule like the one
suggested by an
amicus supporting petitioners that would
"allow a short fixed period for deliberations to take place without
compensation-say maximum one year-after which the just compensation
requirements" would "kick in." 28 Fourth, with the benefit of
hindsight, we might characterize the successive actions of TRP A as
a "series of rolling moratoria" that were the functional equivalent
of a permanent taking.29 Fifth, were it not for the findings of the
District Court that TRP A acted diligently and in good faith, we
might have concluded that the agency was stalling in order to avoid
promulgating the environmental threshold carrying capacities and
regional plan mandated by the 1980 Compact. Cf.
Monterey v.
Del Monte Dunes at
erty 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 I-year cutoff 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.
334
Monterey, Ltd., 526 U. S. 687, 698
(1999). Sixth, apart from the District Court's finding that TRP A's
actions represented a proportional response to a serious risk of
harm to the lake, petitioners might have argued that the moratoria
did not substantially advance a legitimate state interest, see
Agins and
Monterey. Finally, if petitioners had
challenged the application of the moratoria to their individual
parcels, instead of making a facial challenge, some of them might
have prevailed under a
Penn Central analysis.
As the case comes to us, however, none of the last four theories
is available. The "rolling moratoria" theory was presented in the
petition for certiorari, but our order granting review did not
encompass that issue, 533 U. S. 948 (2001); the case was tried in
the District Court and reviewed in the Court of Appeals on the
theory that each of the two moratoria was a separate taking, one
for a 2-year period and the other for an 8-month period. 216 F. 3d,
at 769. And, as we have already noted, recovery on either a bad
faith theory or a theory that the state interests were
insubstantial is foreclosed by the District Court's unchallenged
findings of fact. Recovery under a
Penn Central analysis is
also foreclosed both because petitioners expressly disavowed that
theory, and because they did not appeal from the District Court's
conclusion that the evidence would not support it. Nonetheless,
each of the three
per se theories is fairly encompassed
within the question that we decided to answer.
With respect to these theories, the ultimate constitutional
question is whether the concepts of "fairness and justice" that
underlie the Takings Clause will be better served by one of these
categorical rules or by a
Penn Central inquiry into all of
the relevant circumstances in particular cases. From that
perspective, the extreme categorical rule that any deprivation of
all economic use, no matter how brief, constitutes a compensable
taking surely cannot be sustained. Petitioners' broad submission
would apply to numerous
335
"normal delays in obtaining building permits, changes in zoning
ordinances, variances, and the like," 482 U. S., at 321, as well as
to orders temporarily prohibiting access to crime scenes,
businesses that violate health codes, fire-damaged buildings, or
other areas that we cannot now foresee. Such a rule would
undoubtedly require changes in numerous practices that have long
been considered permissible exercises of the police power. As
Justice Holmes warned in
Mahon, "[g]overnment hardly could
go on if to some extent values incident to property could not be
diminished without paying for every such change in the general
law." 260 U. S., at 413. A rule that required compensation for
every delay in the use of property would render routine government
processes prohibitively expensive or encourage hasty
decisionmaking. Such an important change in the law should be the
product of legislative rulemaking rather than adjudication.30
More importantly, for reasons set out at some length by JUSTICE
O'CONNOR in her concurring opinion in
Palazzolo v.
Rhode
Island, 533 U. S., at 636, we are persuaded that the better
approach to claims that a regulation has effected a temporary
taking "requires careful examination and weighing of all the
relevant circumstances." In that opinion, JUSTICE O'CONNOR
specifically considered the role that the "temporal relationship
between regulatory enactment and title acquisition" should play in
the analysis of a takings claim.
Id., at 632. We have no
occasion to address that particular issue in this case, because it
involves a differ-
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, 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
(1921).
336
ent temporal relationship-the distinction between a temporary
restriction and one that is permanent. Her comments on the
"fairness and justice" inquiry are, nevertheless, instructive:
"Today's holding does not mean that the timing of the
regulation's enactment relative to the acquisition of title is
immaterial to the Penn Central analysis. Indeed, it would be
just as much error to expunge this consideration from the takings
inquiry as it would be to accord it exclusive significance. 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 ....
"The Fifth Amendment forbids the taking of private property for
public use without just compensation. We have recognized that this
constitutional guarantee is '''designed to bar Government from
forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.'"
Penn Central, [438 U. S.], at 123-124 (quoting
Armstrong v. United States, 364 U. S. 40, 49 (1960)).
The concepts of 'fairness and justice' that underlie the Takings
Clause, of course, are less than fully determinate. Accordingly, we
have eschewed 'any "set formula" for determining when "justice and
fairness" require that economic injuries caused by public action be
compensated by the government, rather than remain
disproportionately concentrated on a few persons.' Penn Central,
supra, at 124 (quoting Goldblatt v. Hempstead,
369 U. S. 590,
594 (1962)). The outcome instead 'depends largely "upon the
particular circumstances [in that] case.'" Penn Central,
supra, at 124 (quoting United States v. Central
Eureka Mining Co., 357 U. S. 155, 168
(1958))." Id., at 633.
337
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.31 Unlike the "extraordinary circumstance"
in which the government deprives a property owner of all economic
use,
Lucas, 505 U. S., at 1017, moratoria like Ordinance
81-5 and Resolution 8321 are used widely among land-use planners to
preserve the status quo while formulating a more permanent
development strategy.32 In fact, the consensus in the planning
com-
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 (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. 1993)
(moratorium pending review
338
munity 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.34
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.
Moranga, 692 F. Supp. 1195 (ND 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. Al (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 cutoff 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
339
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. A finding in the 1980 Compact
itself, which presumably was endorsed by all three legislative
bodies that participated in its enactment, attests to the
importance of that concern. 94 Stat. 3243 ("The legislatures of the
States of California and Nevada find that in order to make
effective the regional plan as revised by the agency, 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").
As JUSTICE KENNEDY explained in his opinion for the Court in
Palazzolo, it is the interest in informed decisionmaking
that underlies our decisions imposing a strict ripeness requirement
on landowners asserting regulatory takings claims:
"These cases stand for the important principle that a landowner
may not establish a taking before a landuse authority has the
opportunity, using its own reasonable procedures, to decide and
explain the reach of a challenged regulation. 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
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.
340
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. See Suitum [v. Tahoe Regional Planning
Agency, 520 U. S.
725, 736, and n.10 (1997)] (noting difficulty of demonstrating
that 'mere enactment' of regulations restricting land use effects a
taking)." 533 U. S., at 620-621.
We would create a perverse system of incentives were we to hold
that landowners must wait for a takings claim to ripen so that
planners can make well-reasoned decisions while, at the same time,
holding that those planners must compensate landowners for the
delay.
Indeed, the interest in protecting the decisional process is
even stronger when an agency is developing a regional plan than
when it is considering a permit for a single parcel. In the
proceedings involving the Lake Tahoe Basin, for example, the
moratoria enabled TRP A to obtain the benefit of comments and
criticisms from interested parties, such as the petitioners, during
its deliberations.35 Since a categorical rule tied to the length of
deliberations would likely create added pressure on decisionmakers
to reach a quick resolution of land-use questions, it would only
serve to disadvantage those landowners and interest groups who are
not as or-
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.
341
ganized or familiar with the planning process. Moreover, with a
temporary ban on development there is a lesser risk that individual
landowners will be "singled out" to bear a special burden that
should be shared by the public as a whole.
Nollan v.
California Coastal Comm'n, 483 U. S. 825, 835
(1987). At least with a moratorium there is a clear "reciprocity of
advantage,"
Mahon, 260 U. S., at 415, because it protects
the interests of all affected landowners against immediate
construction that might be inconsistent with the provisions of the
plan that is ultimately adopted. "While each of us is burdened
somewhat by such restrictions, we, in turn, benefit greatly from
the restrictions that are placed on others."
Keystone, 480
U. S., at 491. In fact, there is reason to believe property values
often will continue to increase despite a moratorium. See,
e.
g., Growth Properties, Inc. v.
Klingbeil Holding Co.,
419 F. Supp. 212, 218 (Md. 1976) (noting that land values could be
expected to increase 20% during a 5-year moratorium on
development). Cf.
Forest Properties, Inc. v.
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 i-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.
It may well be true that any moratorium that lasts for more than
one year should be viewed with special skepticism. But given the
fact that the District Court found that the 32 months required by
TRP A to formulate the 1984 Regional Plan was not unreasonable, we
could not possibly conclude that every delay of over one year is
constitutionally
342
unacceptable.36 Formulating a general rule of this kind is a
suitable task for state legislatures.37 In our view, the duration
of the restriction is one of the important factors that a court
must consider in the appraisal of a regulatory takings claim, but
with respect to that factor as with respect to other factors, the
"temptation to adopt what amount to
per se rules in either
direction must be resisted."
Palazzolo, 533 U. S., at 636
(O'CONNOR, J., concurring). There may be moratoria that last longer
than one year which interfere with reasonable investment-backed
expectations, but as the District Court's opinion illustrates,
petitioners' proposed rule is simply "too blunt an instrument" for
identifying those cases.
Id., at 628. We conclude,
therefore, that the interest in "fairness and justice" will be best
served by relying on the familiar
Penn Central approach when
deciding cases like this, rather than by attempting to craft a new
categorical rule.
36We 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. Compo Laws
Ann. § 125.215 (West 2001) (three years); Minn. Stat. § 394.34
(2000) (two years); N. H. Rev. Stat. Ann. § 674:23 (West 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 Freil 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);
Sturgess
V.
Chilmark, 380 Mass. 246, 402 N. E. 2d 1346 (1980);
Lebanon V.
Woods, 153 Conn. 182,215 A. 2d 112
(1965).
343
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, dissenting.
For over half a decade petitioners were prohibited from building
homes, or any other structures, on their land. Because the Takings
Clause requires the government to pay compensation when it deprives
owners of all economically viable use of their land, see
Lucas v.
South Carolina Coastal Council, 505 U. S. 1003 (1992),
and because a ban on all development lasting almost six years does
not resemble any traditional land-use planning device, I
dissent.
I
"A court cannot determine whether a regulation has gone 'too
far' unless it knows how far the regulation goes."
MacDonald,
Sommer &
Frates v.
Yolo County, 477 U. S. 340, 348 (1986)
(citing
Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393, 415
(1922)).1 In failing to undertake this inquiry, the Court
1 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 (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.
344
ignores much of the impact of respondent's conduct on
petitioners. Instead, it relies on the flawed determination of the
Court of Appeals that the relevant time period lasted only from
August 1981 until April 1984.
Ante, at 312, 313-314. During
that period, Ordinance 81-5 and Regulation 83-21 prohibited
development pending the adoption of a new regional land-use plan.
The adoption of the 1984 Regional Plan (hereinafter Plan or 1984
Plan) did not, however, change anything from petitioners'
standpoint. After the adoption of the 1984 Plan, petitioners still
could make no use of their land.
The Court of Appeals disregarded this post-April 1984
deprivation on the ground that respondent did not "cause" it. In a
42 U. s. C. § 1983 action, "the plaintiff must demonstrate that the
defendant's conduct was the actionable cause of the claimed
injury."
216 F.3d
764, 783
(CA9 2000). Applying this principle, the Court
of Appeals held that the 1984 Plan did not amount to a taking
because the Plan actually allowed permits to issue for the
construction of single-family residences. Those permits were never
issued because the District Court immediately issued a temporary
restraining order, and later a permanent injunction that lasted
until 1987, prohibiting the approval of any building projects under
the 1984 Plan. Thus, the Court of Appeals concluded that the "1984
Plan itself could not have constituted a taking," because it was
the injunction, not the Plan, that prohibited development during
this period.
Id., at 784. The Court of Appeals is correct
that the 1984 Plan did not cause petitioners' injury. But that is
the right answer to the wrong question. The causation question is
not limited to whether the 1984 Plan caused petitioners' injury;
the question is whether respondent caused petitioners' injury.
We have never addressed the § 1983 causation requirement in the
context of a regulatory takings claim, though language in
Penn
Central Transp. Co. v.
New York City, 438 U. S. 104 (1978),
suggests that ordinary principles of proximate cause
345
govern the causation inquiry for takings claims.
Id., at
124. The causation standard does not require much elaboration in
this case, because respondent was undoubtedly the "moving force"
behind petitioners' inability to build on their land from August
1984 through 1987.
Monell v.
New York City Dept. of
Social Servs., 436 U. S. 658, 694 (1978)
(§ 1983 causation established when government action is the "moving
force" behind the alleged constitutional violation). The injunction
in this case issued because the 1984 Plan did not comply with the
1980 Tahoe Regional Planning Compact (Compact) and regulations
issued pursuant to the Compact. And, of course, respondent is
responsible for the Compact and its regulations.
On August 26, 1982, respondent adopted Resolution 82-11.
That resolution established "environmental thresholds for water
quality, soil conservation, air quality, vegetation preservation,
wildlife, fisheries, noise, recreation, and scenic resources."
California v.
Tahoe Regional Planning Agency,
766 F.2d
1308, 1311
(CA9 1985). The District Court enjoined the
1984 Plan in part because the Plan would have allowed 42,000 metric
tons of soil per year to erode from some of the single-family
residences, in excess of the Resolution 82-11 threshold for soil
conservation.
Id., at 1315; see also
id., at 1312.
Another reason the District Court enjoined the 1984 Plan was that
it did not comply with article V(g) of the Compact, which requires
a finding, "with respect to each project, that the project will not
cause the established [environmental] thresholds to be exceeded."
Ibid. Thus, the District Court enjoined the 1984 Plan
because the Plan did not comply with the environmental requirements
of respondent's regulations and of the Compact itself.
Respondent is surely responsible for its own regulations, and it
is also responsible for the Compact as it is the governmental
agency charged with administering the Compact. Compact, Art. I(c),
94 Stat. 3234. It follows that respondent was the "moving force"
behind petitioners' inability to de-
346
velop their land from April 1984 through the enactment of the
1987 plan. Without the environmental thresholds established by the
Compact and Resolution 82-11, the 1984 Plan would have gone into
effect and petitioners would have been able to build single-family
residences. And it was certainly foreseeable that development
projects exceeding the environmental thresholds would be
prohibited; indeed, that was the very purpose of enacting the
thresholds.
Because respondent caused petitioners' inability to use their
land from 1981 through 1987, that is the appropriate period of time
from which to consider their takings claim.
II
I now turn to determining whether a ban on all economic
development lasting almost six years is a taking.
Lucas
reaffirmed our "frequently expressed" view that "when the owner of
real property has been called upon to sacrifice
all
economically beneficial uses in the name of the common good, that
is, to leave his property economically idle, he has suffered a
taking." 505 U. S., at 1019. See also
Agins v.
City of
Tiburon, 447 U.
S. 255, 258-259 (1980). The District Court in this case held
that the ordinances and resolutions in effect between August 24,
1981, and April 25, 1984, "did in fact deny the plaintiffs all
economically viable use of their land." 34 F. Supp. 2d 1226, 1245
(Nev. 1999). The Court of Appeals did not overturn this finding.
And the 1984 injunction, issued because the environmental
thresholds issued by respondent did not permit the development of
single-family residences, forced petitioners to leave their land
economically idle for at least another three years. The Court does
not dispute that petitioners were forced to leave their land
economically idle during this period. See
ante, at 312. But
the Court refuses to apply
Lucas on the ground that the
deprivation was "temporary."
Neither the Takings Clause nor our case law supports such a
distinction. For one thing, a distinction between
347
"temporary" and "permanent" prohibitions is tenuous. The
"temporary" prohibition in this case that the Court finds is not a
taking lasted almost six years.2 The "permanent" prohibition that
the Court held to be a taking in
Lucas lasted less than two
years. See 505 U. S., at 1011-1012. The "permanent" prohibition in
Lucas lasted less than two years because the law, as it
often does, changed. The South Carolina Legislature in 1990 decided
to amend the 1988 Beachfront Management Act to allow the issuance
of "'special permits' for the construction or reconstruction of
habitable structures seaward of the baseline."
Id., at
1011-1012. Landuse regulations are not irrevocable. And the
government can even abandon condemned land. See
United
States v.
Dow, 357 U. S. 17, 26 (1958).
Under the Court's decision today, the takings question turns
entirely on the initial label given a regulation, a label that is
often without much meaning. There is every incentive for government
to simply label any prohibition on development "temporary," or to
fix a set number of years. As in this case, this initial
designation does not preclude the government from repeatedly
extending the "temporary" prohibition into a long-term ban on all
development. The Court now holds that such a designation by the
government is conclusive even though in fact the moratorium greatly
exceeds the time initially specified. Apparently, the Court would
not view even a 10-year moratorium as a taking under
Lucas
because the moratorium is not "permanent."
Our opinion in
First English Evangelical Lutheran Church of
Glendale v.
County of Los Angeles, 482 U. S. 304 (1987),
rejects any distinction between temporary and permanent takings
when a landowner is deprived of all economically beneficial use of
his land.
First English stated that "'temporary takings
which, as here, deny a landowner all use of his property, are not
different in kind from permanent
2 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.
348
takings, for which the Constitution clearly requires
compensation."
Id., at 318. Because of
First
English's rule that "temporary deprivations of use are
compensable under the Takings Clause," the Court in
Lucas
found nothing problematic about the later developments that
potentially made the ban on development temporary. 505 U. S., at
1011-1012 (citing
First English, supra); see also 505 U. S.,
at 1033 (KENNEDY, J., concurring in judgment) ("It is well
established that temporary takings are as protected by the
Constitution as are permanent ones" (citing
First English,
supra, at 318)).
More fundamentally, even if a practical distinction between
temporary and permanent deprivations were plausible, to treat the
two differently in terms of takings law would be at odds with the
justification for the
Lucas rule. The
Lucas rule is
derived from the fact that a "total deprivation of beneficial use
is, from the landowner's point of view, the equivalent of a
physical appropriation." 505 U. S., at 1017. The regulation in
Lucas was the "practical equivalence" of a long-term
physical appropriation, i.
e., a condemnation, so the Fifth
Amendment required compensation. The "practical equivalence," from
the landowner's point of view, of a "temporary" ban on all economic
use is a forced leasehold. For example, assume the following
situation: Respondent is contemplating the creation of a National
Park around Lake Tahoe to preserve its scenic beauty. Respondent
decides to take a 6-year leasehold over petitioners' property,
during which any human activity on the land would be prohibited, in
order to prevent any further destruction to the area while it was
deciding whether to request that the area be designated a National
Park.
Surely that leasehold would require compensation. In a series of
World War II-era cases in which the Government had condemned
leasehold interests in order to support the war effort, the
Government conceded that it was required
349
to pay compensation for the leasehold interest.3 See
United
States v.
Petty Motor Co., 327 U. S. 372 (1946);
United States v.
General Motors Corp., 323 U. S. 373, 376
(1945). From petitioners' standpoint, what happened in this case is
no different than if the government had taken a 6-year lease of
their property. The Court ignores this "practical equivalence"
between respondent's deprivation and the deprivation resulting from
a leasehold. In so doing, the Court allows the government to "do by
regulation what it cannot do through eminent domain-i. e., take
private property without paying for it."
228
F.3d 998, 999
(CA9 2000) (Kozinski, J., dissenting from
denial of rehearing en banc).
Instead of acknowledging the "practical equivalence" of this
case and a condemned leasehold, the Court analogizes to other areas
of takings law in which we have distinguished between regulations
and physical appropriations, see
ante, at 321-324. But
whatever basis there is for such distinctions in those contexts
does not apply when a regulation deprives a landowner of all
economically beneficial use of his land. In addition to the
"practical equivalence" from the landowner's perspective of such a
regulation and a physical appropriation, we have held that a
regulation denying all productive use of land does not implicate
the traditional justification for differentiating between
regulations and physical appropriations. In "the extraordinary
circumstance when
no productive or economically beneficial
use of land is permitted," it is less likely that "the legislature
is simply
3 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 (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), 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.
350
'adjusting the benefits and burdens of economic life' ... in a
manner that secures an 'average reciprocity of advantage' to
everyone concerned,"
Lucas, supra, at 1017-1018 (quoting
Penn Central Transp. Co. v.
New York City, 438 U. S.,
at 124, and
Pennsylvania Coal Co. v.
Mahon, 260 U.
S., at 415), and more likely that the property "is being pressed
into some form of public service under the guise of mitigating
serious public harm,"
Lucas, supra, at 1018.
The Court also reads
Lucas as being fundamentally
concerned with value,
ante, at 329-331, rather than with the
denial of "all economically beneficial or productive use of land,"
505 U. S., at 1015. But
Lucas repeatedly discusses its
holding as applying where
"no productive or economically
beneficial use of land is permitted."
Id., at 1017; see also
ibid. ("[T]otal deprivation of beneficial use is, from the
landowner's point of view, the equivalent of a physical
appropriation");
id., at 1016 ("[T]he Fifth Amendment is
violated when land-use regulation ...
denies an owner
economically viable use of his land"); id., at 1018 ("[T]he
functional basis for permitting the government, by
regulation, to affect property values without compensation ... does
not apply to the relatively rare situations where the government
has deprived a landowner of all economically beneficial uses");
ibid. ("[T]he fact that regulations that leave the owner of
land without economically beneficial or productive options for its
use ... carry with them a heightened risk that private property is
being pressed into some form of public service");
id., at
1019 ("[W]hen the owner of real property has been called upon to
sacrifice
all economically beneficial uses in the name of
the common good, that is, to leave his property economically idle,
he has suffered a taking"). Moreover, the Court's position that
value is the
sine qua non of the
Lucas rule proves
too much. Surely, the land at issue in
Lucas retained some
market value based on the contingency, which soon came to fruition
(see
supra, at 347), that the development ban would be
amended.
351
Lucas is implicated when the government deprives a
landowner of "all economically beneficial or productive use of
land." 505 U. S., at 1015. The District Court found, and the Court
agrees, that the moratorium "temporarily" deprived petitioners of
"'all economically viable use of their land.'"
Ante, at 316.
Because the rationale for the
Lucas rule applies just as
strongly in this case, the "temporary" denial of all viable use of
land for six years is a taking.
III
The Court worries that applying
Lucas here compels
finding that an array of traditional, short-term, land-use planning
devices are takings.
Ante, at 334-335, 337-338. But since
the beginning of our regulatory takings jurisprudence, we have
recognized that property rights "are enjoyed under an implied
limitation."
Mahon, supra, at 413. Thus, in
Lucas,
after holding that the regulation prohibiting all economically
beneficial use of the coastal land came within our categorical
takings rule, we nonetheless inquired into whether such a result
"inhere[d] in the title itself, in the restrictions that background
principles of the State's law of property and nuisance already
place upon land ownership." 505 U. S., at 1029. Because the
regulation at issue in
Lucas purported to be permanent, or
at least long term, we concluded that the only implied limitation
of state property law that could achieve a similar long-term
deprivation of all economic use would be something "achieved in the
courts-by adjacent landowners (or other uniquely affected persons)
under the State's law of private nuisance, or by the State under
its complementary power to abate nuisances that affect the public
generally, or otherwise."
Ibid.
When a regulation merely delays a final land-use decision, we
have recognized that there are other background principles of state
property law that prevent the delay from being deemed a taking. We
thus noted in
First English that our discussion of temporary
takings did not apply "in the case
352
of normal delays in obtaining building permits, changes in
zoning ordinances, variances, and the like." 482 U. S., at 321. We
reiterated this last Term: "The right to improve property, of
course, is subject to the reasonable exercise of state authority,
including the enforcement of valid zoning and land-use
restrictions."
Palazzolo v.
Rhode Island, 533 U. S.
606, 627 (2001). Zoning regulations existed as far back as colonial
Boston, see Treanor, The Original Understanding of the Takings
Clause and the Political Process, 95 Colum. L. Rev. 782, 789
(1995), and New York City enacted the first comprehensive zoning
ordinance in 1916, see 1 Anderson's American Law of Zoning § 3.07,
p. 92 (K. Young rev. 4th ed. 1995). Thus, the short-term delays
attendant to zoning and permit regimes are a longstanding feature
of state property law and part of a landowner's reasonable
investment-backed expectations. See
Lucas, supra, at 1034
(KENNEDY, J., concurring in judgment).
But a moratorium prohibiting all economic use for a period of
six years is not one of the longstanding, implied limitations of
state property law.4 Moratoria are "interim controls on the use of
land that seek to maintain the status quo with respect to land
development in an area by either 'freezing' existing land uses or
by allowing the issuance of building permits for only certain land
uses that would not be inconsistent with a contemplated zoning plan
or zoning change." 1 E. Ziegler, Rathkopf's The Law of Zoning
and
4 Six years is not a "cutoff point,"
ante, at 338, 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
353-354. 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 353).
353
Planning § 13:3, p.13-6 (4th ed. 2001). Typical moratoria thus
prohibit only certain categories of development, such as fast-food
restaurants, see
Schafer v.
New Orleans, 743 F.2d
1086 (CA5 1984), or adult businesses, see
Renton
v.
Playtime Theatres, Inc., 475 U. S. 41 (1986), or
all commercial development, see
Arnold Bernhard &
Co. v.
Planning & Zoning Comm'n, 194 Conn.
152,479 A. 2d 801 (1984). Such moratoria do not implicate
Lucas because they do not deprive landowners of all
economically beneficial use of their land. As for moratoria that
prohibit all development, these do not have the lineage of permit
and zoning requirements and thus it is less certain that property
is acquired under the "implied limitation" of a moratorium
prohibiting all development. Moreover, unlike a permit system in
which it is expected that a project will be approved so long as
certain conditions are satisfied, a moratorium that prohibits all
uses is by definition contemplating a new land-use plan that would
prohibit all uses.
But this case does not require us to decide as a categorical
matter whether moratoria prohibiting all economic use are an
implied limitation of state property law, because the duration of
this "moratorium" far exceeds that of ordinary moratoria. As the
Court recognizes,
ante, at 342, n. 37, state statutes
authorizing the issuance of moratoria often limit the moratoria's
duration. California, where much of the land at issue in this case
is located, provides that a moratorium "shall be of no further
force and effect 45 days from its date of adoption," and caps
extension of the moratorium so that the total duration cannot
exceed two years. Cal. Govt. Code Ann. § 65858(a) (West Supp.
2002); see also Minn. Stat. § 462.355, subd. 4 (2000) (limiting
moratoria to 18 months, with one permissible extension, for a total
of two years). Another State limits moratoria to 120 days, with the
possibility of a single 6-month extension. Ore. Rev. Stat. Ann. §
197.520(4) (1997). Others limit moratoria to six
354
months without any possibility of an extension. See Colo. Rev.
Stat. § 30-28-121 (2001); N. J. Stat. Ann. § 40:55D-90(b) (1991).5
Indeed, it has long been understood that moratoria on development
exceeding these short time periods are not a legitimate planning
device. See,
e. g., Holdsworth v.
Hague, 9 N. J. Misc. 715, 155 A. 892 (1931).
Resolution 83-21 reflected this understanding of the limited
duration of moratoria in initially limiting the moratorium in this
case to 90 days. But what resulted-a "moratorium" lasting nearly
six years-bears no resemblance to the short-term nature of
traditional moratoria as understood from these background examples
of state property law.
Because the prohibition on development of nearly six years in
this case cannot be said to resemble any "implied limitation" of
state property law, it is a taking that requires compensation.
***
Lake Tahoe is a national treasure, and I do not doubt that
respondent's efforts at preventing further degradation of the lake
were made in good faith in furtherance of the public interest. But,
as is the case with most governmental action that furthers the
public interest, the Constitution requires that the costs and
burdens be borne by the public at large, not by a few targeted
citizens. Justice Holmes' admonition of 80 years ago again rings
true: "We are in danger of forgetting that a strong public desire
to improve the public condition is not enough to warrant achieving
the desire by a shorter cut than the constitutional way of paying
for the change."
Mahon, 260 U. S., at 416.
5 These are just some examples of the state laws limiting the
duration of moratoria. There are others. See,
e. g.,
Utah Code Ann. §§ 17-27404(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 337, n.
31.
355
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
I join THE CHIEF JUSTICE'S dissent. I write separately to
address the majority's conclusion that the temporary moratorium at
issue here was not a taking because it was not a "taking of 'the
parcel as a whole.'"
Ante, at 332. While this questionable
rule* has been applied to various alleged regulatory takings, it
was, in my view, rejected in the context of
temporal
deprivations of property by
First English Evangelical Lutheran
Church of Glendale v.
County of Los Angeles, 482 U. S. 304, 318
(1987), which held that temporary and permanent takings "are not
different in kind" when a landowner is deprived of all beneficial
use of his land. I had thought that
First English put to
rest the notion that the "relevant denominator" is land's infinite
life. Consequently, a regulation effecting a total deprivation of
the use of a so-called "temporal slice" of property is compensable
under the Takings Clause unless background principles of state
property law prevent it from being deemed a taking; "total
deprivation of use is, from the landowner's point of view, the
equivalent of a physical appropriation."
Lucas v.
South
Carolina Coastal Council, 505 U. S. 1003, 1017 (1992).
A taking is exactly what occurred in this case. No one seriously
doubts that the land-use regulations at issue rendered petitioners'
land unsusceptible of
any economically beneficial use. This
was true at the inception of the mora-
*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 (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, 1017,
n.7 (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").
356
THOMAS, J., dissenting
torium, and it remains true today. These individuals and
families were deprived of the opportunity to build singlefamily
homes as permanent, retirement, or vacation residences on land upon
which such construction was authorized when purchased. The Court
assures them that "a temporary prohibition on economic use" cannot
be a taking because "[l]ogically ... the property will recover
value as soon as the prohibition is lifted."
Ante, at 332.
But the "logical" assurance that a "temporary restriction ...
merely causes a diminution in value,"
ibid., is cold comfort
to the property owners in this case or any other. After all,
"[i]n the long run we are all dead." J. Keynes, Monetary
Reform 88 (1924).
I would hold that regulations prohibiting all productive uses of
property are subject to
Lucas' per se rule, regardless of
whether the property so burdened retains theoretical useful life
and value if, and when, the "temporary" moratorium is lifted. To my
mind, such potential future value bears on the amount of
compensation due and has nothing to do with the question whether
there was a taking in the first place. It is regrettable that the
Court has charted a markedly different path today.
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