Tahoe‐sierra Preservation Council v. Tahoe Regional Planning

Tahoe‐sierra Preservation Council v. Tahoe Regional Planning, 535 U.S. 302 (2002), argued 7 Jan. 2002, decided 23 Apr. 2002 by vote of 6 to 3; Stevens for the Court, Rehnquist Scalia, and Thomas in dissent. The Tahoe‐Sierra case involved a regulation that imposed a thirty‐two‐month moratorium on all development of land in the Lake Tahoe basin while a regulatory agency devised a land use plan. The Court addressed the question whether this temporary moratorium necessarily required compensation under the Fifth Amendment Takings Clause. The landowners argued that, under Lucas v. South Carolina Coastal Council (1992), a deprivation of all economically viable use of property was, per se, a taking of property, and therefore compensation was required. The Tahoe‐Sierra Court concluded that the question under Lucas was whether a regulation causes a total deprivation of property value. It then held that property should not be divided into temporal segments when considering the impact of a regulation on the ownership of property—all future value, and not merely the thirty‐two months at issue, had to be considered. Since there will always be remaining value if a regulation is only temporary, the Court determined that the Lucas per se rule was inapplicable to temporary regulations. The Court adopted the multi‐factor test applied in Penn Central Transportation Co. v. City of New York (1978). The Court concluded that temporary moratoria could amount to a taking of property, but determined that there was no hard and fast rule for concluding that a temporary regulation is a taking.

The dissenters argued that the ban on development constituted a taking of property under a Lucas analysis. The most significant aspect of the decision may prove to be the Court's preference for an ad hoc examination of circumstances instead of a categorical rule. Regulations that destroy all property value are rare, and accordingly Penn Central may cover the majority of future regulatory taking cases.

Andrew S. Gold