Tahoe "temporary" construction moratorium lasts forever

"But at my back I always hear Time's wingèd chariot hurrying near." Poet Andrew Marvell's reminder that life is short has special poignancy when you consider the hundreds of owners of small parcels near Lake Tahoe, who have grown old waiting for permission to build retirement or vacation homes on their land.

In early January, the Supreme Court heard a lawsuit brought by these landowners. The lawsuit challenges a construction ban in the Tahoe area that was imposed in 1981 and continues to this day — and yet still is labeled, in fine Orwellian parlance, a "temporary moratorium."

The Fifth Amendment says government must give owners "just compensation" when it takes private property. But the Tahoe landowners haven't been paid a dime. The question before the court: Can government evade the duty to pay by telling landowners that their property rights merely are being frozen for the time being — and they might get them back, someday, if they're lucky enough still to be alive?

Technically, the Supreme Court is reviewing only a three-year building moratorium decreed in the early 1980s by the Tahoe Regional Planning Agency, a growth-management authority set up by the states of California and Nevada. But the prohibition that ended in 1984 was followed immediately by another and then another.

Back-to-back moratoria have forced landowners to watch grass grow on their empty lots for a generation. The owners retain title, pay taxes and face legal liability should anyone be injured on their property. But that's where their "rights" stop. Instead of getting restitution, they're forced into the role of unpaid conservators for land that the government has effectively designated as open space.

This isn't what Dorothy Cook had in mind when she bought a 60-x-100-foot Tahoe parcel in 1979 for $5,500. In her late 70s now, she shares a rented home with her sister and daughter in Big Bear City, Calif. She can't afford a house. Her only property is her tract near Tahoe, where she once dreamed of building a home for her golden years. "But the moratorium took away any possibility that I would ever have a home of my own for my retirement," she recently told the Medill News Service.

Medill also reported on Kenneth and Betty Eberle, who bought two wooded, adjoining lots in 1977 for $8,500 and $9,500, respectively. The Eberles were in their forties at the time, with plans to save enough money to build a home for the day that they could retire. They even factored in the cost of hiring a soil engineer to make sure the project respected the natural beauty that drew them to the place and didn't harm the ecology. But dreams dimmed with the coming of the building moratorium and the signs it might last 'till the Twelfth of Never. One realtor recently told them the lots together would be worth $350,000 if there were permission to build. But while the "temporary" ban stays in place, the land is worthless, according to another realtor who recently appraised it.

"I basically had to agree with her," Kenneth Eberle said of that second, somber assessment. "I've been making tax payments for the last 24 years, and have not had any use of it."

The Eberles, Cook and more than 400 other landowners launched their legal challenges to the moratorium in the mid-1980s. They endured a long and costly procedural gauntlet before a federal district court finally held a bench trial on their case in 1998 and handed them a victory.

The judge found that they should indeed be paid for having lost the use of their property for three years, from 1981 through 1984. The decision relied on Lucas vs. South Carolina Coastal Council, the landmark 1992 case in which the Supreme Court said that where a regulation denies all use and enjoyment of property, a "taking" has occurred and government must pay.

Lucas recognized that property doesn't have to be seized to be "taken." If officials prohibit you from doing anything on your land, you've been deprived of its productive use as effectively as if it had been condemned so a school or firehouse could be built. As the Supreme Court put it, "total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation."

The Tahoe plaintiffs hadn't savored their triumph more than one year before it was taken away by a three-judge panel of the 9th U.S. Circuit Court of Appeals. Judge Stephen Reinhardt, who wrote the appellate opinion, seemed to draw on medieval metaphysics in explaining why there should be no money for Cook and the others.

Property is more than square footage, Reinhardt asserted; property also has longevity — a life span that stretches beyond the horizon. If a regulation has a fixed ending, it hasn't robbed the owner of the property's full "temporal dimension" because there's some future point at which its use will be regained.

By this way of thinking, a three-year ban on development — or even a 20-year ban — doesn't raise constitutional problems, or at least is not a clear-cut taking. Even if it prevents the owner from using the property, it does so for only a fraction of the property's "temporal dimension," which conceivably extends from the Ice Age to the end of time.

Viewed from this eccentric perspective, even a "permanent" regulation could not be said to constitute a per se taking because no laws last forever — they're all temporary in the big picture. Reinhardt's approach also would give a pass to temporary physical invasions of property. What if government insisted on building a temporary road across your property to service a nearby highway project? Because the intrusion would have a conclusion, the Reinhardt rule implies you shouldn't be reimbursed for the time you were unable to use the property.

The ruling also runs afoul of legal precedent. Surely one reason the U.S. Supreme Court took the case is that it already has spoken on temporary takings — and the 9th Circuit did not seem to listen. The 1993 case, First English Evangelical Lutheran Church vs. County of Los Angeles, dealt with a county-development moratorium imposed after a flood in the Angeles National Forest. California courts said the moratorium should not be viewed as a taking if the county made it temporary by repealing it.

The U.S. Supreme Court held otherwise: "[W]here 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." In other words, even a temporary prohibition triggers the Fifth Amendment duty to pay.

Ninth Circuit Judge Alex Kozinski, known for wry wit as well as commitment to property rights, notes that the three-judge panel in Tahoe seemed determined not to follow the Supreme Court's guidance: "The panel does not like the Supreme Court's takings-clause jurisprudence very much, so it reverses First English," Kozinski wrote in an opinion arguing for reconsideration of the Tahoe ruling.

Now it's up to the Supreme Court to defend its precedents and reverse Judge Reinhardt (who's already perhaps the most reversed judge in the federal appellate system). Will the court do so? At oral argument, the landowners' lawyer came in for aggressive questioning, even from some of the more conservative judges, particularly on the implications of his position for run-of-the-mill land-use decisions.

Justices Sandra Day O'Connor and Anthony Kennedy, for instance, wondered whether delays in zoning decisions could be classified as temporary takings. The quite reasonable response: Zoning deliberations are fundamentally different from a construction moratorium. The former advance the development process while the latter slams on the brakes.

Many states give regulators no more than 60 days to review projects; it is disingenuous to compare these brief normal delays in the planning process with a multi-year freeze that brings the entire process to a halt.

Justice Antonin Scalia offered a reminder of the underlying purpose of the Fifth Amendment's takings clause: to ensure that the cost of important social purposes is shared broadly and not foisted onto a few people merely because they own property.

The Tahoe moratorium aims at keeping the lake pristine. "This is a general social problem for which the entire society should pay," Scalia said. If the landowners aren't paid for having their property taken out of commission, they bear the cost alone.

The justices should consider the message that bureaucrats might get if the 9th Circuit's ruling stands. If land use can be banned without worry, as long as the ban is "temporary," won't planners simply cobble together a chain of moratoria — as already has happened in Tahoe?

The matter of mortality also is worth a thought. From landowners' perspective, a "temporary" ban on land use is permanent — if it outlives them. Many of the Tahoe plaintiffs already are too old to take advantage of property they bought in the summer of life, when the first moratorium was not yet a twinkle in a regulator's eye. For these owners, the land-use freeze could be lifted tomorrow, but it still would have had a permanently damaging effect on their lives. If the Fifth Amendment has meaning, these people must be paid.

Johnson is an attorney with the Pacific Legal Foundation (www.pacificlegal.org), a public-interest law firm that litigates for property rights and limited government. The firm submitted an amicus brief in the case of Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency.

At least someone is finally getting the word out about these sorts of government crimes...

it's a story they never seem to have time for on the CBS, ABC or NBC evening news - - - small landowners getting you-know-what-ed by government

Tahoe is a serious case where the people owning lots cannot build there are at the mercy of the enviros. Even worse is Marin County, the home of the Talibannies. You have to live to be 150 to get a building permit and then it's to add a room to your miniature house (that is worth up millions). The City Council is a group of free radicals that even turned down new water reservoirs just before they suffered through years of drought and ran out of HOH.

How to you go about creating some punishment for the scummy bureaucrats and politicians who did this to the property owners for so many years? They should somehow feel some legal pain for their actions.

It's enough to make you think about stooping to go get a law degree to go do battle against the gooberment.

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