Guest Opinion: Moratorium has really lasted 20 years |

Guest Opinion: Moratorium has really lasted 20 years

Ronald A. Zumbrun

The U.S. Supreme Court decision in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency raises many issues and questions regarding land use. Philosophically, the right to own and reasonably use private property is a cornerstone of our Constitution. It is seen by many as the very essence of liberty.

Zoning, general plans and other such devices, when used properly, provide certainty to property owners as to the use of their land. When these measures are used improperly, our state and federal constitutions provide the injured property owner the right to just compensation.

When government physically takes property for a public use, the only issue to resolve is the amount of compensation. The concept of a “regulatory” taking is far more complex.

In 1922, Justice Oliver Wendell Holmes, in Pennsylvania Coal Co. v. Mahon, recognized that “if regulation goes too far it will be recognized as a taking” the courts still have not set clear standards for determining how far is too far. In 1992, the High Court ruled in Lucas v. South Carolina Coastal Council that just compensation is automatically required when a regulation deprives an owner of “all economically beneficial use” of his or her land.

At Lake Tahoe, the Tahoe Regional Planning Agency is the planner and regulator for the Lake Tahoe Basin pursuant to compact between California and Nevada. In 1981 TRPA began developing a regional plan as required by the Compact. As a result, TRPA adopted an ordinance imposing the first of two development moratoria.

TRPA adopted its first Regional Plan in 1984 and was immediately sued by the state of California and the League to Save Lake Tahoe on the grounds that TRPA had failed to establish land-use controls sufficiently stringent to protect the basin. A federal court injunction was issued and remained in effect until a revised plan was adopted in 1987.

Two months after the 1984 plan was adopted, the Tahoe-Sierra Preservation Council filed suit. Tahoe-Sierra represented 2,000 owners of both improved and unimproved land in the basin and a class of some 400 individual owners of vacant lots. The landowners had purchased their properties before 1980 for the purpose of building single-family homes.

Tahoe-Sierra’s lawsuit was based on the takings analysis found in the Lucas case because petitioners were denied “all economically beneficial use” of their land during the moratorium. They contended that any moratorium, regardless of the length of time, automatically results in liability by the public entity for damages.

The majority opinion was based on the premise that only a 32-month moratorium was before the court. Justice John Paul Stevens wrote: “‘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.”

The minority in the 6-3 ruling concluded it was effectively a six-year moratorium, including the period covered by the court injunction. In his dissent, Chief Justice William Rehnquist wrote: “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 E and because a ban on all development lasting almost six years does not resemble any traditional land-use planning device, I dissent.”

TRPA, environmental extremists, government planners and their attorneys exulted over TRPA’s victory. This was the first time since 1987 that property rights advocates had lost in the Supreme Court.

Both the majority and minority opinions agree that the takings clause is “designed to bar Government from forcing some people alone to bear the burdens which, in all fairness and justice, should be borne by the public as a whole.” Here, the full burden was placed only on those seeking to build their homes at Lake Tahoe and not on others who already enjoy the environmental benefits.

Anyone familiar with Lake Tahoe and TRPA knows there has been an intentional moratorium that in reality has lasted 20 years with the purpose of delaying development. For the petitioners, all certainty of building a home has left the planning process and has been replaced by a form of tyranny. It makes more sense to place the burden of protecting Lake Tahoe on the public at large who benefit from such protection.

— Ronald A. Zumbrun is managing attorney of the Zumbrun Law Firm, a Sacramento-based public issues firm.

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