00-1167 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (57019)

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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. It 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.

216 F.3d 764, affirmed.

Local effect:

The statute effectively upholds the constitutionality of Wis. Stat. 62.23(7)(d), which permits municipalities to preserve existing uses for two years pending a final zoning ordinance.

Stevens, J.; Rehnquist, C. J., dissenting; Thomas, J., dissenting.