The United States Supreme Court heard oral argument on January 7, 2002, in the property rights case of Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency (No. 00-1167). At issue in this case is whether a three-year building moratorium constitutes a temporary taking, requiring just compensation under the Fifth Amendment. Although there have been relatively few property rights cases before the Supreme Court in recent years, those that have made it all the way seem to have resulted in rulings favorable to advocates of property rights. Attorneys for the property owners are hoping that trend continues, but this one is too close to call.
This case involves an effort by the Tahoe Regional Planning Agency to halt alleged increases in environmental damage to Lake Tahoe. The planning agency enacted an ordinance in the early 1980s that temporarily prohibited construction on certain lands around the lake. The ordinance stated that the provisions setting forth the moratorium expired when the agency developed a plan. The landowners filed suit, claiming that the development moratorium constituted a temporary taking, entitling them to compensation under the Fifth Amendments Taking Clause. The United States Court of Appeals for the Ninth Circuit disagreed with the homeowners, saying that the temporary moratorium did not amount to a taking.
At oral argument before the Supreme Court, Justice Scalia, typically the Courts property rights leader, stated his concern that individuals should not bear the burden of preserving property for use by all citizens.
However, some justices pushed Michael Berger, attorney representing the property owners, for his interpretation of the practical implications of his argument. For example, Justice Kennedy asked Mr. Berger whether his argument that a temporary taking justifies compensation would result in New York City being required to compensate the World Trade Center owners if the city froze development there for a stated period of time while it determined a plan for the sites future use.
The implications of this case may be far-reaching. In California, a hot topic under debate is the California Coastal Commissions attempts to preserve easements to beachfront access which begin to expire this year and all will expire at the end of three years unless renewed. Stay tuned
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