Posted on 01/08/2002 9:59:59 AM PST by cogitator
SUPREME COURT HEARS SMART GROWTH SUIT
WASHINGTON, DC, January 7, 2002 (ENS) - The U.S. Supreme Court heard oral arguments today in the case of Tahoe Sierra Preservation Council vs. Tahoe Regional Planning Agency (TRPA).
The American Planning Association (APA) says the primary issue before the court is whether or not a temporary moratorium on land development constitutes a taking of property under the U.S. Constitution.
The Tahoe Sierra Preservation Council, a nonprofit property rights advocacy organization representing some business and development interests in the area, challenged a temporary development ban ordered by TRPA to allow time for the study and drafting of development standards to prevent the pollution of Lake Tahoe.
In June 2000, the Ninth Circuit Court of Appeals overturned a district court ruling that had found temporary development moratoria to be a permanent taking of property worthy of compensation under the Fifth Amendment of the U.S. Constitution.
In the ruling, the Court noted "temporary development moratoria prevent developers and landowners racing to carry out development that is destructive of community's interests before a new plan goes into effect. Such a race-to-development would permit property owners to evade the land use plan and undermine its goals."
The APA has filed an amicus brief in support of TRPA, a bi-state organization created in 1969 to protect Lake Tahoe and the surrounding environment in California and Nevada. The APA argues that planners need to have to ability to use interim development controls and temporary bans on development to avoid making decisions that could harm the natural environment and human communities.
"Without the use of a temporary moratorium, the public would effectively exchange the right to think about development before breaking ground for impatience," said Jeff Soule, policy director for APA. "The property rights of Lake Tahoe include the right to remain unpolluted, scenic and reasonably planned."
The United States has filed its own amicus brief in support of TRPA, and U.S. Solicitor General Theodore Olson will deliver oral arguments before the Supreme Court. This will mark the first time that a U.S. Solicitor General has argued a takings case before the Supreme Court.
Do I understand this correctly? Bush/Olson et al are supporting the taking of property rights?
Absolutely, if they have purchased the land the view consists of, or have arranged an easement or other development restriction with the land's owners.
But in the absences of any claim to the property?
Absolutely not.
They support the TRPA position, apparently. But this is not as clear as a ban on development, because it is a "temporary" development plan. So it would appear that the Administration is supporting the rights of communities or regions to have a development plan that cannot be over-ridden by developers in a hurry.
One has to wonder, how long is temporary?
I didn't know that lakes had property rights. When did that happen?
Depending on the length of the temporary ban, it seems reasonable to me. That the case is still being tried would seem to indicate that the ban is far too long.
Your question indicates you don't understand the concept of "taking".
As a land owner, I have certain rights to use my land. The consideration I paid for the land was made expecting to have those rights available to me. When those rights are taken from me then I have the right to be compensated by those who took them from me.
In applying that to yoru hypothetical, I purchase some unrestricted land with the intent to develop it. You and others use your rights to stop my developing which is ok with me but the taking of the rights to develop the land should be compensated for by the majority who took it.
"Temporary" being 21+ years. The landowners have been denied permission to build on the land since 1980.
Yes, I understand that. The issue is whether a supposedly temporary moratorium on development (to allow environmental issues to be addressed) constitutes a taking.
In applying that to yoru hypothetical, I purchase some unrestricted land with the intent to develop it. You and others use your rights to stop my developing which is ok with me but the taking of the rights to develop the land should be compensated for by the majority who took it.
Correct. I think that the issue is going to be the meaning of "temporary". Another poster here said that the moratorium has been in place for about 20 years. I'd expect that to be a strong point in favor of the plaintiff.
Your British right ?
I've never been accused of being British before. Why do you ask?
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