Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,
535 U.S. 302 (2002)

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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,


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

Full Text of Opinion

Primary Holding

A taking that requires fair compensation does not arise when development of property is paused during the process of creating a comprehensive land-use plan.


The Tahoe Regional Planning Agency was tasked with devising a comprehensive land-use plan for the Lake Tahoe region that would facilitate growth without endangering the environment. During this process, it imposed two moratoria from 1981 to 1983 and from 1983 to 1984, the second of which was more restrictive. For a total of 32 months, the moratoria essentially prevented any development in the Lake Tahoe area. Property owners argued that the agency had engaged in a taking of their property without compensation. After the lower court agreed with the property owners, the Ninth Circuit found in favor of the agency.



  • John Paul Stevens (Author)
  • Sandra Day O'Connor
  • Anthony M. Kennedy
  • Ruth Bader Ginsburg
  • David H. Souter
  • Stephen G. Breyer

Reluctant to create a categorical rule that would hold all such moratoria unconstitutional, Stevens emphasized that these cases require investigation into their specific facts. He found that the most appropriate precedent was Penn Central Transportation Co. v. New York, rather than the two cases that the property owners proposed. These were First English Evangelical Lutheran Church of Glendale v. County of Los Angeles and Lucas v. South Carolina Coastal Council. Both of theses cases addressed regulatory takings. However, First English addressed only the matter of a remedy once a taking had been found, without ruling on whether a taking in fact had happened. Lucas concerned a permanent deprivation of all economically beneficial use of a piece of real estate, rather than the temporary (although also absolute) deprivation that had occurred here.

Pointing out that Penn Central requires courts to focus on the property as a whole, Stevens found it futile to define the property interest only within the time period affected by the moratoria rather than the indefinite duration of the owners' property interest. He was confident that the value of the property would recover once the moratorium was lifted, and he felt that the government had a particularly strong interest when its actions would affect an entire area rather than just the land controlled by the property owners bringing suit. Stevens was persuaded that the moratoria were rational and appropriate measures to ensure that the agency made appropriate decisions in an important matter. This interest outweighed the more nebulously stated interest of the property owners in fairness and justice.


  • William Hubbs Rehnquist (Author)
  • Antonin Scalia
  • Clarence Thomas

A distinction between permanent and temporary takings might allow the government to deprive a property owner of land for a substantial period simply by labeling the deprivation as temporary. Rehnquist also made the factual point that the eventual development plan removed all economically beneficial use of the property at issue for another three years after the second moratorium, adding up to a six-year period of deprivation. He felt that this period was sufficiently long that the distinction between temporary and permanent was no longer meaningful. According to Rehnquist, Lucas rather than Penn Central was the appropriate precedent to apply in this case. He was not convinced that the moratoria were necessary for the government to develop its land-use plan.


  • Clarence Thomas (Author)
  • Antonin Scalia

Case Commentary

The Court relied less on a theoretical or textual analysis than on the functional notion that public planning would be greatly hampered if officials needed to hurry through it to avoid paying compensation for delays. This reasoning was characteristic of the pragmatic Stevens.

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