The Impact of <em>Tahoe-Sierra</em> on Temporary Regulatory Takings Law

Abstract

I. INTRODUCTION This paper explores the development of regulatory law, the Supreme Court's latest opinion--Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2)--and the impact of Tahoe-Sierra on subsequent lower court decisions. As will be seen, since Tahoe-Sierra rejected the argument that building moratoria are per se takings, its greatest impact has been on cases challenging moratoria. Its impact on challenges, however, has extended far beyond moratoria because essential elements of the Tahoe-Sierra holding--such as its affirmation of the parcel as a whole rule--apply to other types of restrictions on the use of property. II. FIRST ENGLISH: TEMPORARY TAKINGS COME OF AGE The concept of temporary takings hit the big time with the United States Supreme Court's decision in First English Evangelical Lutheran Church v. County of Los Angeles. (3) Prior to that opinion, some state courts, such as those in California, New York and Pennsylvania, interpreted the federal and their own state constitutions as not requiring compensation government rescinded a regulation after a court determined that it was a taking. (4) Inverse condemnation damages were only available where, after a court determined that the regulation was excessive, the government nevertheless decided to maintain the regulation. (5) First English, however, brought about a sea change by holding that compensation is the appropriate remedy for regulatory takings. As the Court explained, where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. (6) The practical impact of First English has been profound. Following First English, planners operate under the fear that a court may find that their decision constituted a taking requiring the payment of compensation, even if the decision is withdrawn. (7) Although First English held that compensation is required even government reverses an action that was held to be a taking, the Court left open the question of how to determine whether there was a taking in the first place. The Court faced that question in Tahoe-Sierra. To best understand the Tahoe-Sierra decision, and its impact on law, it will be helpful to briefly explore the various types of takings, as well as key tests. III. TYPES OF TEMPORARY REGULATORY TAKINGS Temporary regulatory can be separated into several categories, each of which tends to receive a different treatment by the courts. We will note the categories here; in the last section of this paper, we will explore the different treatments given to these various types of in light of Tahoe-Sierra. 1. Physical Takings Government usually physically takes property by either formally acquiring the property through an eminent domain process, or by informally taking property through a physical action (such as building a damn that floods private property). As indicated in Loretto v. Teleprompter Manhattan CATV Corp., (8) however, government can also use the regulatory process to physically take property. In Loretto, for example, the State of New York adopted a statute that permitted cable companies to install cables and switch boxes in apartment buildings without the building owner's permission. Other examples of physical appropriations through the use of the regulatory process are seen in Nollan v. California Coastal Commission, (9) and Dolan v. City of Tigard, (10) public entities issued building permits conditioned on the owners dedicating property to public uses. 2. Regulations of Use a. Prospectively Certain land use restrictions are from the outset intended to be temporary. …