No. 00-1167 

In the Supreme Court of the United States 

TAHOE-SIERRA PRESERVATION COUNCIL, INC., ET AL., 
PETITIONERS 

v. 
TAHOE REGIONAL PLANNING AGENCY, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 

JOHN C. CRUDEN 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

PETER H. OPPENHEIMER 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the Court of Appeals properly determined that a 
temporary moratorium on land development does not consti- 
tute a taking of property requiring compensation under the 
Takings Clause of the United States Constitution. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

8 

Argument: 

A temporary development moratorium, reasonably 
designed to preserve the status quo pending comple- 
tion of a comprehensive land-use plan, does not effect 
a per se taking of property .................................................. 

9 
A. Substantial development of real property typi- 
cally requires the prior approval of land-use 
authorities, and reasonable delays in develop- 
ment resulting from the permit application 

process do not effect a taking ..................................... 

11 

B. A reasonable moratorium on development pending 
completion of a comprehensive land-use plan does 

not constitute a per se taking under Lucas ............. 
16 

C. This Court’s decision in First English does not 
suggest that a temporary development mora- 
torium effects a per se taking of property ............... 
25 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Agins v. City of Tiburon, 447 U.S. 255 (1980) .......... 
12, 14, 15 

American W. Dev., Inc. v. City of Henderson, 
111 Nev. 804 (1995) ................................................................ 
23 

Andrus v. Allard, 444 U.S. 51 (1979) ................................. 
17 

Armstrong v. United States, 364 U.S. 40 (1960) .............. 
14 

Avco Cmty. Developers, Inc. v. South Coast Reg’l 

Comm’n, 17 Cal. 3d 785 (1976), cert. denied, 429 U.S. 
1083 (1977) ............................................................................... 

23 
Block v. Hirsh, 256 U.S. 135 (1931) .................................... 27 

(III) 

IV 

Cases—Continued: Page 

California ex rel. Van de Kamp v. Tahoe Reg’l 

Planning Agency, 766 F.2d 1308 (9th Cir. 1985) ............ 
4, 18 

City of Dallas v. Meserole, 155 S.W.2d 1019 (Tex. 

Civ. App. 1941) ....................................................................... 

25 

Danforth v. United States, 308 U.S. 271 (1939) ............... 
12 

Dolan v. City of Tigard, 512 U.S. 374 (1994) .................... 
12, 24 

Downham v. City Council, 58 F.2d 784 (E.D. Va. 
1932) ......................................................................................... 24 

First English Evangelical Lutheran Church v. 

County of L.A.: 
482 U.S. 304 (1987) ................................................. 
6, 25, 26, 27 

210 Cal. App. 3d 1353 (1989), cert. denied, 493 U.S. 
1056 (1990) .................................................................... 
16 

Fowler v. Obier, 7 S.W.2d 219 (Ky. 1928) .......................... 
24 

Heckler v. Campbell, 461 U.S. 458 (1983) ......................... 
22 

Hodel v. Irving, 481 U.S. 704 (1987) ................................... 
17 

Jackson Court Condominiums, Inc. v. City of 

New Orleans, 874 F.2d 1070 (5th Cir.1989) ..................... 

16 

Kelly v. Tahoe Reg’l Planning Agency, 855 P.2d 
1027 (Nev. 1993), cert. denied, 510 U.S. 1014 (1994) ....... 
16, 29 

Lake Country Estates v. Tahoe Reg’l Planning 

Agency, 440 U.S. 391 (1979) ................................................ 

2 

Long Beach Equities, Inc. v. County of Ventura, 
231 Cal. App. 3d 1016 (1991), cert. denied, 505 U.S. 
1219 (1992) ............................................................................... 
16 

Loretto v. Teleprompter Manhattan CATV Corp., 
458 U.S. 419 (1982) ................................................................ 
27 

Lucas v. South Carolina Coastal Council, 505 U.S. 
1003 (1992) ........................................................................... 
passim 

McCurley v. City of El Reno, 280 P. 467 (Okla. 
1929) ......................................................................................... 24-25 

McCutchan Estates Corp. v. Evansville-Vanderburgh 

County Airport Auth. Dist., 580 N.E.2d 339 (Ind. Ct. 
App. 1991) ............................................................................... 16 

V 

Cases—Continued: Page 

Miller v. Board of Pub. Works of City of L.A.. 
195 Cal. 477 (1925), error dismissed, 273 U.S. 781 
(1927) ........................................................................................ 24 

Mobil Oil Exploration & Producing Southeast, Inc. v. 

United Distribution Cos., 498 U.S. 211 (1991) ................ 
22 

Mont Belvieu Square, Ltd. v. City of Mont Belvieu, 
27 F. Supp. 2d 935 (S.D. Tex. 1998) .................................... 
16 

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ........... 
22 

Nollan v. Californian Coastal Comm’n, 483 U.S. 
825 (1987) ................................................................................. 
17 

Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001) .... 
9, 10, 13, 

14, 15, 18, 25, 30 
Penn Cent. Transp. Co. v. New York City, 438 U.S. 
104 (1978) ...................................................................... 

5, 11, 24, 29 

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 
(1922) ............................................................................. 
9, 14, 17, 24 

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........ 
23 

Sante Fe Vill. Venture v. City of Albuquerque, 
914 F. Supp. 478 (D.N.M. 1995) ........................................... 
16 

SEC v. Chenery Corp., 332 U.S. 194 (1947) ...................... 
22 

Suitum v. Tahoe Reg’l Planning Agency, 
520 U.S. 725 (1997) ...................................................... 
2-3, 13, 21 

Tocco v. New Jersey Council on Affordable Housing, 
576 A.2d 328 (N.J. Super. Ct. 1990), cert. denied, 
499 U.S. 937 (1991) ................................................................ 
16 

United States v. General Motors Corp., 323 U.S. 373 
(1945) ........................................................................................ 27 

United States v. Petty Motor Co., 327 U.S. 372 
(1946) ........................................................................................ 27 

United States v. Riverside Bayview Homes, Inc., 
474 U.S. 121 (1985) ..................................................... 

1, 12, 13, 19 

United States Dep’t of State v. Ray, 502 U.S. 
164 (1991) ................................................................................. 
18 

Western Coal Traffic League v. Surface Transp. Bd., 
216 F.3d 1168 (D.C. Cir. 2000) ............................................. 22 

VI 

Cases—Continued: Page 

Williams v. City of Central, 907 P.2d 701 (Colo. 

Ct. App. 1995) ......................................................................... 
16 

Woodbury Place Partners v. City of Woodbury, 
492 N.W.2d 258 (Minn. Ct. App. 1992), cert. 
denied, 508 U.S. 960 (1993) .................................................. 
16 

Zilber v. Town of Moraga, 692 F. Supp. 1195 
(N.D. Cal. 1988) ...................................................................... 
16 

Constitution and statutes: 

U.S. Const.: 

Art. I, § 10, Cl. 1 (Contracts Clause) .................................. 

4 

Amend. V ................................................................................ 
1 

Due Process Clause .......................................................... 
4 

Just Compensation Clause .......................................... 
1, 4, 22 

Amend. XIV (Equal Protection Clause) ........................... 
4 

Act of Dec. 18, 1969, Pub. L. No. 91-148, 83 Stat. 
360 ......................................................................................... 1-2 

Act of Dec. 19, 1980, Pub. L. No. 96-551, 94 Stat. 
3233 ......................................................................................... 

2, 3 

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 
1 

Clean Water Act, 33 U.S.C. 1251 et seq. ............................... 
1 

33 U.S.C. 1288 .................................................................... 
3 

Lake Tahoe Restoration Act, Pub. L. No. 106-506, 
114 Stat. 2351 .......................................................................... 
2 

Surface Mining Control and Reclamation Act of 1977, 
30 U.S.C. 1201 et seq. ............................................................. 
1 

5 U.S.C. 555(b) ........................................................................... 
15 

5 U.S.C. 706(1) ........................................................................... 
15 

5 U.S.C. 706(2) ........................................................................... 
19 

42 U.S.C. 1983 ............................................................................ 
5 

Cal. Gov’t Code (West): 
§ 65806 (1995) ..................................................................... 
25 

§ 65858 (1997 & Supp. 2001) ............................................ 25 

VII 

Miscellaneous: 

Am Jur 2d, Zoning and Planning (1992 & Supp. May 
2001) ......................................................................................... 16 

Robert H. Freilich, Interim Development Controls: 

Essential Tools for Implementing Flexible Planning 
and Zoning, 49 J. Urb. Law 65 (1971) .............................. 
21 

Tahoe Regional Planning Agency, Environmental 

Impact Statement for Adoption of a Regional Plan 
for the Lake Tahoe Basin (Feb. 1983) ............................... 29 

In the Supreme Court of the United States 

No. 00-1167 
TAHOE-SIERRA PRESERVATION COUNCIL, INC., ET AL., 
PETITIONERS 

v. 
TAHOE REGIONAL PLANNING AGENCY, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS 

INTEREST OF THE UNITED STATES 

Various acts of Congress provide for a federal agency to 
regulate the permissible uses of privately-owned real prop- 
erty, or for States to carry out such programs pursuant to 
federal standards. See, e.g., Clean Water Act (CWA), 33 
U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.; Sur- 
face Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1201 et seq. The United States has a substantial interest in 
the proper application of the Fifth Amendment’s Just Com- 
pensation Clause to those regulatory efforts. See, e.g., United 
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126- 
129 (1985) (rejecting takings challenge to Corps of Engineers 
permitting program under CWA). In addition, respondent 
Tahoe Regional Planning Agency was created by an inter- 
state compact between California and Nevada that was ap- 
proved by Congress. Act of Dec. 18, 1969, Pub. L. No. 91- 

(1) 

2 

148, 83 Stat. 360; see also Act of Dec. 19, 1980, Pub. L. No. 
96-551, 94 Stat. 3233 (amendments strengthening compact); 
Lake Tahoe Restoration Act, Pub. L. No. 106-506, 114 Stat. 
2351. 

STATEMENT 

1. The parcels of land at issue in this case are located in 
environmentally sensitive areas around Lake Tahoe, an al- 
pine lake of unique clarity and color, attributable in part to 
the low levels of nutrients that have historically been pre- 
sent in the water. Pet. App. 4; see id. at 60-61. Since the 
1950’s, however, substantial development in the region has 
created impervious surfaces such as roads and houses that 
accelerate the flow of nutrients into Lake Tahoe. Id. at 5, 63. 
Rising nutrient levels stimulate the growth of algae, which 
diminishes the lake’s clarity, alters its color, and jeopardizes 
fish and other lake-dwelling animal species. Id. at 4, 63. 

In 1969, in an effort to halt the accelerating environmental 
damage to Lake Tahoe, Congress approved the bi-state Ta- 
hoe Regional Planning Compact. Pub. L. No. 91-148, 83 Stat. 
360; see Pet. App. 6, 65. The 1969 Compact set goals for the 
protection and preservation of the lake and its surrounding 
basin and created respondent Tahoe Regional Planning 
Agency (TRPA) as the “single agency to coordinate and 
regulate development in the Basin and to conserve its natu- 
ral resources.” Lake Country Estates v. Tahoe Reg’l Plan- 
ning Agency, 440 U.S. 391, 394 (1979); see Pet. App. 6, 65. 
As required by the 1969 Compact, respondent classified 
lands in the Lake Tahoe Basin according to their environ- 
mental sensitivity; those lands most prone to erosion, be- 
cause they are either steeply sloped or located near streams 
or wetlands, were designated as “high hazard,” while all 
other lands were denominated “low hazard.” Id. at 6, 66-67. 

In 1980, Congress approved amendments to the Compact 
after it “had proven inadequate for protection of the lake and 
its environment.” Suitum v. Tahoe Reg’l Planning Agency, 

3 

520 U.S. 725, 729 (1997); see Pub. L. No. 96-551, 94 Stat. 
3233; Pet. App. 6-7, 68. The 1980 Compact directed re- 
spondent, within 18 months and in consultation with the 
States of California and Nevada and various interested 
agencies, to adopt “environmental threshold carrying capaci- 
ties” for the region, including standards for air and water 
quality, soil conservation, vegetation preservation, and 
noise. Compact Arts. II(i), V(b); Suitum, 520 U.S. at 729 n.1; 
Pet. App. 7 n.3. The Compact further directed respondent to 
amend its regional plan within 12 months after adoption of 
the carrying capacities in order to achieve and maintain 
those capacities and air and water quality standards. Com- 
pact Art. V(c). The Compact also stated that it was neces- 
sary in the meantime to “halt temporarily works of develop- 
ment in the region which might otherwise absorb the entire 
capability of the region for further development or direct it 
out of harmony with the ultimate plan.” Id. Art. VI(c). The 
Compact therefore imposed a moratorium on certain large- 
scale development and capped the number of building per- 
mits that could be issued. See ibid.; see generally Pet. App. 
7, 69-70. At the same time it was implementing the Com- 
pact’s new requirements, respondent was also charged with 
adopting a regional water quality plan under Section 208 of 
the Clean Water Act, 33 U.S.C. 1288. See Pet. App. 68-69. 

While working toward completion of the environmental 
threshold carrying capacities, respondent adopted Ordinance 
81-5 (see Pet. App. 168-169), which took effect on August 24, 
1981. Id. at 7, 70. Subject to certain exceptions, Ordinance 
81-5 temporarily prohibited most residential and all commer- 
cial construction on high hazard lands until a new regional 
plan was completed. Id. at 70-74. As directed by the 1980 
Compact, respondent adopted threshold carrying capacities 
on August 26, 1982, approximately two months after the ex- 
piration of the 18-month deadline set forth in the Compact. 
Id. at 8, 74. Respondent began work on the new regional 
plan but soon recognized that it would be unable to complete 

4 

the plan within the prescribed 12 months. Id. at 8, 74-75. 
Consequently, on August 26, 1983, respondent enacted Re- 
solution 83-21 (see id. at 170-171), which suspended project 
reviews and approvals and the acceptance of new permit 
applications “pending adoption of the new regional plan.” Id. 
at 170. Resolution 83-21 was continued in effect until the 
new plan was adopted on April 26, 1984, 32 months after re- 
spondent had initially suspended most development on high 
hazard lands. Id. at 8, 75. 

2. On the day the 1984 regional plan was adopted, Cali- 
fornia filed suit to block its implementation, arguing that the 
plan’s land-use controls were not sufficiently stringent to 
protect the Lake Tahoe Basin. Pet. App. 8, 76. Shortly 
thereafter, the District Court for the Eastern District of 
California blocked implementation of the new regional plan, 
first with a temporary restraining order and subsequently 
with a preliminary injunction. Id. at 8-9, 76-77. The prelimi- 
nary injunction was affirmed on appeal, see California ex 
rel. Van de Kamp v. Tahoe Regional Planning Agency, 766 
F.2d 1308 (9th Cir. 1985), and it remained in place until a 
revised regional plan was adopted in 1987. See Pet. App. 9, 

77. 

3. a. On June 25, 1984, petitioners filed parallel suits, 
which were subsequently consolidated in the District of Ne- 
vada, naming as defendants respondent TRPA, individual 
members of its governing board, and the States of California 
and Nevada. Pet. App. 9, 12, 77-78. Petitioners alleged vio- 
lations of the Just Compensation, Due Process, Equal Pro- 
tection, and Contracts Clauses, and they requested both 
monetary and equitable relief. Id. at 9, 78. 

In the ensuing litigation, petitioners’ claims were divided 
into four time periods: Period I (August 24, 1981, to August 
26, 1983, when Ordinance 81-5 was in effect); Period II 
(August 27, 1983, to April 25, 1984, when Resolution 83-21 
was in effect); Period III (April 26, 1984, to July 1, 1987, 
when the preliminary injunction against implementation of 

5 

the 1984 Plan was in effect); and Period IV (July 2, 1987, to 
the present, when the 1987 Plan has been in effect). Pet. 
App. 9-10. Most of the claims were dismissed on various 
grounds in a series of district court and court of appeals deci- 
sions. See generally id. at 79-81. However, the claims of 
some of the petitioners under 42 U.S.C. 1983 for just com- 
pensation, premised on the theory that the land-use restric- 
tions in effect during the various periods had effected a tak- 
ing of petitioners’ property, remained pending. See Pet. 
App. 82. 

b. The district court held that petitioners’ claims re- 
garding Period IV were barred by the applicable statutes of 
limitations. Pet. App. 128-155. In a subsequent opinion, the 
district court held that petitioners were entitled to just com- 
pensation for Periods I and II, when Ordinance 81-5 and 
Resolution 83-21 were in effect, but not for Period III. Id. at 
57-127. 

With respect to Periods I and II, the court first held that 
“[i]f * * * [respondent’s] actions effected only a partial de- 
nial of economically viable use,” then the test described in 
Penn Central Transportation Co. v. New York City, 438 
U.S. 104 (1978), would apply and would “clearly lead[] to the 
conclusion that there was no taking.” Pet. App. 88. Under 
that test, the court explained, given the temporary nature of 
the restrictions and the length of time property was typically 
held in the Basin prior to development, petitioners did not 
have reasonable investment-backed expectations in being 
able to build single-family homes on their land while the 
temporary moratorium was in effect. Id. at 88-90. The court 
further determined that the absence of any evidence “re- 
garding the specific diminution in value of any of [petition- 
ers’] individual properties,” as well as the “character of the 
governmental action,” weighed against finding a taking un- 
der Penn Central. Id. at 90. The court explained that re- 
spondent “took the necessary steps” to “solv[e] a serious 
problem,” while petitioners “retained many important rights 

6 

of property ownership, such as the right to exclude others 
from their own land.” Id. at 91. 

The district court nevertheless held that Ordinance 81-5 
and Resolution 83-21 had effected a taking of petitioners’ 
property. The court concluded that Penn Central did not 
govern because the ordinance and resolution had foreclosed 
“all economically viable uses” of petitioners’ property during 
the periods they were in effect and thereby resulted in a “to- 
tal taking” of petitioners’ property under Lucas v. South 
Carolina Coastal Council, 505 U.S. 1003 (1992). Pet. App. 
92-101. The court rejected respondent’s contention that no 
taking had occurred because Ordinance 81-5 and Resolution 
83-21 were “reasonable temporary planning moratoria.” Id. 
at 109-115. Although the court observed that it “d[id] not 
see how TRPA could have reached agreement on a regional 
plan any sooner” than it did, id. at 115, it read this Court’s 
decisions in Lucas and First English Evangelical Lutheran 
Church v. County of Los Angeles, 482 U.S. 304 (1987), to re- 
quire compensation, at least where the relevant moratoria 
did not provide for termination on a specified date. Pet. 
App. 113-115. 

Finally, the district court held that petitioners were not 
entitled to compensation for Period III because the 1984 Re- 
gional Plan was not the “proximate cause” of petitioners’ in- 
ability to develop their land during that interval. Pet. App. 
101-108. Rather, the court explained, “[t]he real cause of 
[petitioners’] harm after the T.R.O. was entered was the ef- 
fect of the T.R.O. and the Preliminary Injunction [see p. 4, 
supra], not the 1984 Plan.” Id. at 106. 

4. The court of appeals affirmed in part and reversed in 
part. Pet. App. 1-56. 

a. The court of appeals reversed the district court’s 
holding that petitioners were entitled to compensation for 
the restrictions on development during Periods I and II. 
Pet. App. 14-40. The court noted that “the only question” 

7 

before it was “whether a categorical taking occurred” under 
Lucas, because petitioners had disavowed any reliance on 
Penn Central’s ad hoc balancing approach. Id. at 18-19. The 
court explained that, except in cases involving physical occu- 
pation of real property, a landowner generally may not es- 
tablish a taking by demonstrating an inability to use some 
discrete segment of the land, even if the effect of the restric- 
tion is to diminish the value of the property as a whole. Id. 
at 20-27. The court found “no plausible basis on which to dis- 
tinguish a similar diminution in value that results from a 
temporary suspension of development.” Id. at 27. The court 
also concluded that “[i]n several ways, temporary develop- 
ment moratoria promote effective planning,” ibid., and that 
courts should be “exceedingly reluctant to adopt rulings that 
would threaten the survival of this crucial planning mecha- 
nism,” id. at 28. 

b. The court of appeals affirmed the district court’s 
holding that petitioners were not entitled to compensation 
for Periods III and IV. Pet. App. 40-56. With respect to Pe- 
riod III, the court determined (see id. at 40-47) that petition- 
ers could not establish the requisite causal link between the 
1984 Regional Plan and their inability to develop their prop- 
erties because “the injunction issued [in the parallel lawsuit] 
effectively prohibited the implementation of the 1984 Plan.” 
Id. at 43. With respect to Period IV, the court agreed with 
the district court that petitioners’ takings claims were bar- 
red by the applicable statutes of limitations. Id. at 47-56. 

c. Five judges dissented from the denial of rehearing en 
banc. Pet. App. 157-167. Those judges reasoned that “[t]he 
only difference between this case and Lucas is that the 
regulation here had a finite duration,” and they construed 
this Court’s decision in First English to require compensa- 
tion in this setting. Id. at 159. 

8 

SUMMARY OF ARGUMENT 

A. A characteristic feature of land-use regulation is the 
requirement that a property owner obtain affirmative gov- 
ernment authorization, typically in the form of a building 
permit, before commencing substantial development. Such a 
generally applicable permit requirement, and the attendant 
inability to develop the land in the interim, are highly un- 
likely to eliminate the value of real property, do not impose 
inordinate burdens on isolated landowners, and are among 
the background legal principles that serve to define the 
landowner’s interests. The application of such permitting 
requirements to a particular tract therefore does not raise 
any serious issue under the Just Compensation Clause. 

B. Temporary moratoria can serve an important function 
in land-use planning and protection of critical natural re- 
sources. Although a particular moratorium could give rise to 
takings concerns because of its scope, duration, purposes, or 
impact on certain landowners, the mere possibility of such 
effects provides no justification for a categorical rule. Even 
without announcing a formal development moratorium, a 
permitting agency could consider overall patterns of actual 
or anticipated development in ruling on individual permit ap- 
plications, and it could defer action on individual applications 
pending clarification or amendment of the substantive 
permitting criteria. A formal, publicly-announced temporary 
moratorium simply increases the predictability and trans- 
parency of the land-management process. And like the re- 
quirement of prior government approval for development of 
an individual tract, the use of temporary moratoria covering 
a broader area is a land-management tool with a well-estab- 
lished tradition. 

C. This Court’s decision in First English does not sup- 
port petitioners’ claim of a per se taking. The Court in First 
English specifically disavowed any suggestion that its hold- 
ing encompassed government efforts to preserve the status 

9 

quo pending a final decision as to the propriety of develop- 
ment. The Court’s decision focused on a question of rem- 
edy—i.e., whether the government is constitutionally re- 
quired to pay compensation for a proven taking—rather than 
on the antecedent question whether a taking had occurred. 
Likewise, the moratorium at issue here differs sharply from 
the development ban in Lucas. The moratorium was tempo- 
rary; it secured a reciprocity of advantage to a broad group 
of landowners rather than imposing disproportionate bur- 
dens on an isolated few; it did not effectively press private 
land into public service; and it was rooted in well-established 
background property-law principles. 

ARGUMENT 

A TEMPORARY DEVELOPMENT MORATORIUM, REA- 
SONABLY DESIGNED TO PRESERVE THE STATUS 
QUO PENDING COMPLETION OF A COMPREHEN- 
SIVE LAND-USE PLAN, DOES NOT EFFECT A PER SE 
TAKING OF PROPERTY 

Until this Court’s decision in Pennsylvania Coal Co. v. 
Mahon, 260 U.S. 393 (1922), “it was generally thought that 
the Takings Clause reached only a ‘direct appropriation’ of 
property, or the functional equivalent of a ‘practical ouster of 
[the owner’s] possession.’ ” Lucas v. South Carolina Coastal 
Council, 505 U.S. 1003, 1014 (1992) (citations omitted). The 
Court has since concluded, however, that even where an 
owner is not divested of title to or possession of real prop- 
erty, land-use regulation may effect a compensable taking if 
it trenches too severely upon the prerogatives that have tra- 
ditionally accompanied ownership. See id. at 1014-1019; 
Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2457 (2001). In 
particular, regulation that permanently deprives the owner 
of all economically beneficial use of land typically requires 
the payment of just compensation even though it does not 
involve a “direct appropriation” of the property involved. 

10 

Lucas, 505 U.S. at 1015-1016; see Palazzolo, 121 S. Ct. at 
2457. 

Lucas does not support petitioners’ claim that a per se 
taking occurs as a consequence of temporary development 
restrictions that are intended to preserve the status quo 
pending a final government decision regarding the permissi- 
ble uses of the land. Significant development of real prop- 
erty typically requires the prior approval of some official 
body—most obviously in the form of a building permit—and 
government has never been thought to “take” property sim- 
ply by requiring that it be kept in its present state during 
the pendency of a reasonable deliberative process. Although 
a temporary development moratorium to allow land-use 
authorities to determine appropriate permitting criteria is 
different in some respects from the delay attendant to a 
permitting process, there is no basis for petitioners’ cate- 
gorical claim that such a moratorium constitutes a taking per 
se. 

Petitioners devote considerable rhetorical energy to the 
assertion that the development restrictions at issue in this 
case were in fact permanent. Those contentions disregard 
the rulings by both courts below, unchallenged here, that 
rejected petitioners’ takings claims for any period after 
Resolution 83-21 expired in April 1984 (see pp. 5, 6, 7, supra), 
and they are simply unresponsive to the question presented 
as framed by this Court, which is expressly limited to 
whether a “temporary moratorium” is an ipso facto taking. 
See 121 S. Ct. 2589, 2589-2590 (2001). The Court’s disposi- 
tion of that question, moreover, will control future cases in- 
volving temporary moratoria, including those (presumably 
the vast majority) in which development is permitted to go 
forward after the moratorium expires. We therefore ad- 
dress the question on which this Court granted certiorari: 
whether the 32-month development moratorium imposed by 
Ordinance 81-5 and Resolution 83-21 effected a taking of 
property requiring payment of just compensation. 

11 

Petitioners do not contend in this Court that the process 
of developing the 1984 Regional Plan was unduly protracted, 
or that the development restrictions imposed by Ordinance 
81-5 and Resolution 83-21 were more extensive than neces- 
sary to preserve the status quo pending respondent’s devel- 
opment of the environmental threshold carrying capacities 
and completion of a new regional plan, as required by the 
1980 Compact. Nor, more generally, do petitioners seek to 
establish a taking under the multi-factor test set forth in 
Penn Central Transportation Co. v. New York City, 438 
U.S. 104 (1978). The district court specifically found that re- 
spondent could not have completed its plan more quickly 
than it did and that there was no taking under Penn Central, 
and on appeal petitioners disavowed any claim of a taking 
under Penn Central. See pp. 6-7, supra. Petitioners raise 
instead the categorical claim that any and all temporary 
moratoria on the issuance of building permits are takings 
under this Court’s decision in Lucas. In that context, the 32- 
month moratorium should therefore be assumed to have 
been reasonable in scope and duration, given its stated 
objective.1 

A. Substantial Development Of Real Property Typically 

Requires The Prior Approval Of Land-Use Authori- 
ties, And Reasonable Delays In Development Result- 
ing From The Permit Application Process Do Not Ef- 
fect A Taking 

1. “[T]he authority of state and local governments to en- 
gage in land use planning has been sustained against consti- 
tutional challenge as long ago as [this Court’s] decision in 
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).” 

1 The district court rejected as “completely meritless” petitioners’ 
earlier claim that respondent had “acted in bad faith in complying with the 
[1980] Compact requirements.” Pet. App. 68. The court found that re- 
spondent had “clearly approached its obligations under * * * the Com- 
pact * * * with good faith and to the best of its ability.” Id. at 69. 

12 

Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). A charac- 
teristic feature of land-use regulation is the requirement 
that a property owner obtain the affirmative approval of a 
designated governmental body before commencing substan- 
tial development. This Court has never suggested that a 
landowner’s inability to develop his property during the 
permit application process presents a takings problem or 
requires the payment of just compensation. Indeed, such a 
claim runs counter to a number of this Court’s precedents. 

For example, in United States v. Riverside Bayview 
Homes, Inc., 474 U.S. 121, 127 (1985), which concerned per- 
mits issued by the Corps of Engineers for the filling of wet- 
lands adjacent to navigable waters, the Court observed that 
“[a] requirement that a person obtain a permit before en- 
gaging in a certain use of his or her property does not itself 
‘take’ the property in any sense: after all, the very existence 
of a permit system implies that permission may be granted, 
leaving the landowner free to use the property as desired.” 
The Court concluded that “[o]nly when a permit is denied 
and the effect of the denial is to prevent ‘economically viable’ 
use of the land in question can it be said that a taking has 
occurred.” Ibid. That analysis is inconsistent with any claim 
that a permit requirement causes a temporary taking when- 
ever its effect is to prevent economically viable use of land 
during the application process. 

In the same vein, the Court in Agins v. City of Tiburon, 
447 U.S. 255 (1980), explained (in the context of municipal 
precondemnation activities) that “[m]ere fluctuations in 
value during the process of governmental decisionmaking, 
absent extraordinary delay, are ‘incidents of ownership. 
They cannot be considered as a “taking” in the constitutional 
sense.’ ” 
Id. at 263 n.9 (quoting Danforth v. United States, 

308 U.S. 271, 285 (1939)). 

Any theory under which a taking would be deemed to 
have occurred as a result of the time required for landowners 
and responsible governmental officials to comply with and 

13 

implement permit requirements would also be inconsistent 
with this Court’s ripeness jurisprudence. A plaintiff who 
asserts a regulatory takings claim must generally “allow 
regulatory agencies to exercise their full discretion in con- 
sidering development plans for the property, including the 
opportunity to grant any variances or waivers allowed by 
law. As a general rule, until these ordinary processes have 
been followed the extent of the restriction on property is not 
known and a regulatory taking has not yet been estab- 
lished.” Palazzolo, 121 S. Ct. at 2459; accord Suitum v. Ta- 
hoe Reg’l Planning Agency, 520 U.S. 725, 733-739 (1997). 
That analysis necessarily presumes that a permit require- 
ment does not itself effect a taking, even when it temporarily 
prevents economically viable use of the land pending a final 
decision by the agency. 

2. It follows a fortiori that a temporary prohibition on 
development pending completion of the permit application 
process does not constitute a per se taking under Lucas. 
The rationales on which the Court relied in Lucas are inap- 
plicable in that context. 

First, because “the very existence of a permit system im- 
plies that permission may be granted,” Riverside Bayview, 
474 U.S. at 127, a temporary bar on development for the du- 
ration of the permitting process leaves open the potential for 
future productive uses and is therefore exceedingly unlikely 
to eliminate the property’s value, even on a temporary basis. 
Accordingly, in contrast to the permanent construction ban 
at issue in Lucas, which “rendered valueless” the plaintiff ’s 
beachfront lots, 505 U.S. at 1020, a temporary development 
ban incident to the permitting process cannot reasonably be 
regarded as the practical “equivalent of a physical appro- 
priation,” id. at 1017. 

Second, the Court in Lucas emphasized that “in the ex- 
traordinary circumstance when no productive or economi- 
cally beneficial use of land is permitted,” development re- 
strictions cannot reasonably be assumed to “secure[] an ‘av- 

14 

erage reciprocity of advantage’ to everyone concerned.” 505 
U.S. at 1017-1018 (quoting Mahon, 260 U.S. at 415). There is 
nothing in the least “extraordinary,” however, about land- 
use regulation that requires everyone to obtain prior gov- 
ernment authorization for significant development within a 
defined geographic area. Such generally applicable require- 
ments do not remotely implicate “the purpose of the Takings 
Clause, which is to prevent the government from ‘forcing 
some people alone to bear public burdens which, in all fair- 
ness and justice, should be borne by the public as a whole.’ ” 
Palazzolo, 121 S. Ct. at 2457-2458 (quoting Armstrong v. 
United States, 364 U.S. 40, 49 (1960)). Rather, the require- 
ment of prior government approval secures a reciprocity of 
advantage to landowners within the relevant area by pro- 
viding greater assurance that restrictions intended to fur- 
ther the interests of the community as a whole will be en- 
forced in a consistent manner. Cf. Agins, 447 U.S. at 262 
(“The zoning ordinances benefit the appellants as well as the 
public * * * in assuring careful and orderly development of 
residential property.”). 

Third, the Court concluded in Lucas that “the functional 
basis for permitting the government, by regulation, to affect 
property values without compensation”—that “Government 
hardly could go on” if it were required to pay for every dimi- 
nution in value caused by regulation, see Mahon, 260 U.S. at 
413—does not apply to the “relatively rare situations where 
the government has deprived a landowner of all economically 
beneficial uses” of property on a permanent basis. 505 U.S. 
at 1018. That functional basis plainly does apply, however, to 
the effects of a prior-approval requirement that is applicable 
to all owners of property in the vicinity. 

Fourth, a permit requirement does not “carry with [it] a 
heightened risk that private property is being pressed into 
some form of public service.” Lucas, 505 U.S. at 1018. In 
particular, the general rule that land must remain undevel- 
oped during the period necessary for compliance with the 

15 

permit process does not reflect a determination that any 
given parcel of land should be preserved in its natural state 
on a permanent basis to further a public interest. That rule 
serves instead to assure the integrity of the permitting proc- 
ess by maintaining the status quo until land-use officials 
have reached a final decision regarding the propriety of de- 
velopment on any particular tract. 

Finally, even when land-use regulation prevents all eco- 
nomically beneficial use of a parcel on a permanent basis, the 
Fifth Amendment does not require the payment of just com- 
pensation if the pertinent restriction is derived from “back- 
ground principles of the State’s law of property and nui- 
sance”—i.e., “those common, shared understandings of per- 
missible limitations derived from a State’s legal tradition.” 
Palazzolo, 121 S. Ct. at 2464; see Lucas, 505 U.S. at 1029- 
1031. The rule that significant development of real property 
requires prior government approval likewise constitutes an 
established background principle. “[A]bsent extraordinary 
delay” in that process, any economic loss that a landowner 
may suffer as a result of the temporary inability to develop 
his property while he is seeking a permit is simply an “inci- 
dent[] of ownership.” Agins, 447 U.S. at 263 n.9. 

Significantly, moreover, a permitting system typically is 
subject to built-in protections against “extraordinary delay.” 
Federal permitting agencies, for example, are subject to the 
requirement in the Administrative Procedure Act that, 
“[w]ith due regard for the convenience and necessity of the 
parties or their representatives and within a reasonable 
time, each agency shall proceed to conclude a matter pre- 
sented to it.” 5 U.S.C. 555(b) (emphasis added). That duty is 
judicially enforceable under 5 U.S.C. 706(1), which author- 
izes a district court to “compel agency action unlawfully 
withheld or unreasonably delayed.” What constitutes a 
“reasonable” time may vary from case to case and must take 
into account the steps the agency must take to assess the 
proposed development. But the existence of that statutory 

16 

protection and the right to enforce it essentially remove any 
basis for a takings claim resulting from the implementation 
of the permit process itself. 

B. A Reasonable Moratorium On Development Pending 

Completion Of A Comprehensive Land-Use Plan Does 

Not Constitute A Per Se Taking Under Lucas 

The question in this case is whether a temporary devel- 
opment moratorium intended to preserve the status quo 
pending the government’s adoption of a comprehensive land- 
use plan constitutes a per se taking under Lucas. For a 
number of reasons, treatment of such moratoria as per se 
takings is unwarranted.2 

2 Courts have consistently held that development moratoria adopted 
by local governments pending study and formulation of land-use plans do 
not effect a taking. See, e.g. Jackson Court Condominiums, Inc. v. City of 
New Orleans, 874 F.2d 1070, 1080-1082 (5th Cir. 1989); Mont Belvieu 
Square, Ltd. v. City of Mont Belvieu, 27 F. Supp. 2d 935, 942-943 (S.D. 
Tex. 1998); Zilber v. Town of Moraga, 692 F. Supp. 1195, 1206-1207 (N.D. 
Cal. 1988); Kelly v. Tahoe Reg’l Planning Agency, 855 P.2d 1027, 1032- 
1035 (Nev. 1993), cert. denied, 510 U.S. 1014 (1994); Long Beach Equities, 
Inc. v. County of Ventura, 231 Cal. App. 3d 1016, 1035-1036 (1991), cert. 
denied, 505 U.S. 1219 (1992); Tocco v. New Jersey Council on Affordable 
Housing, 576 A.2d 328, 329-331 (N.J. Super. Ct. 1990), cert. denied, 499 
U.S. 937 (1991); First English Evangelical Lutheran Church v. County of 
L.A., 210 Cal. App. 3d 1353, 1372-1374 (1989), cert. denied, 493 U.S. 1056 
(1990); McCutchan Estates Corp. v. Evansville-Vanderburgh County 
Airport Auth. Dist., 580 N.E.2d 339, 342-343 (Ind. Ct. App. 1991); see also 
83 Am. Jur. 2d, Zoning and Planning §§ 161-163 (1992 & Supp. May 2001). 
The courts have reached that conclusion even where development 
moratoria allegedly denied owners all economically viable use of their 
property for a temporary period, so long as the moratoria were of rea- 
sonable duration and reasonably necessary to further the public welfare. 
See, e.g., Santa Fe Vill. Venture v. City of Albuquerque, 914 F. Supp. 478, 
483 (D.N.M. 1995); Williams v. City of Central, 907 P.2d 701, 703-706 
(Colo. Ct. App. 1995); Woodbury Place Partners v. City of Woodbury, 492 
N.W.2d 258, 260-263 (Minn. Ct. App. 1992), cert. denied, 508 U.S. 960 
(1993). 

17 

1. Temporary moratoria differ in certain respects from 
the postponement of development that necessarily results 
from the requirement of prior government approval of indi- 
vidual permit applications. Development moratoria typically 
are formally and publicly adopted by the legislature or 
responsible agency, and they apply generally and uniformly 
to a given category of property. They may serve a range of 
purposes, from affording time to study the impacts of antici- 
pated development, to preparing new permitting criteria, to 
allowing for the installation of new infrastructure. Such 
temporary measures can promote responsible regulation and 
sound development in ways that the individualized per- 
mitting process sometimes cannot. See generally Pet. App. 
27-28. 

At the same time, because a moratorium (like the prohibi- 
tion against development during the permit process) is de- 
signed to maintain the status quo for a temporary period 
pending the completion of governmental action, it typically 
does not interfere with any existing uses of property or with 
such essential aspects of the bundle of property rights as the 
right to exclude others, see Nollan v. California Coastal 
Comm’n, 483 U.S. 825 (1987), to sell the property, see An- 
drus v. Allard, 444 U.S. 51 (1979), or to transfer it by devise 
or intestacy, see Hodel v. Irving, 481 U.S. 704 (1987). For 
these reasons, there is nothing inherent in the nature of a 
temporary moratorium on new development to suggest that 
all such moratoria should be held to be takings through an 
extension of Lucas’s per se rule. 

2. The court of appeals judges who dissented from denial 
of rehearing en banc suggested that categorical treatment of 
temporary moratoria as per se takings is necessary to pre- 
vent land-use agencies from “enact[ing] one moratorium af- 
ter another, perhaps indefinitely.” Pet. App. 164. The possi- 
bility that a particular interim restriction might be abused or 
go “too far,” Mahon, 260 U.S. at 415, however, provides no 
basis for a categorical rule covering all moratoria, regardless 

18 

of their scope, duration, and purpose, and the degree of de- 
velopment permitted at their conclusion. The per se rule an- 
nounced in Lucas has never been invoked as a broad pro- 
phylactic, but instead has been reserved for the “extraordi- 
nary circumstance” (Lucas, 505 U.S. at 1017) in which land- 
use regulation operates as the functional equivalent of a di- 
rect appropriation of property.3 Rather, an allegation that a 
particular moratorium is unreasonably protracted or unduly 
broad in scope—or that it is not justified by its stated objec- 
tive or imposes inordinate burdens on isolated landown- 
ers—can be more appropriately and fully addressed under 
the Penn Central framework that governs regulatory tak- 
ings claims generally. See Palazzolo, 121 S. Ct. at 2467 
(O’Connor, J., concurring) (“The temptation to adopt what 
amount to per se rules in either direction must be resisted.”). 

3. Petitioners attempt to distinguish the temporary 
moratorium at issue here from the permit application proc- 
ess, on the ground that a landowner who seeks a develop- 
ment permit “is participating with the expectation—or at 
least the possibility—of obtaining development permission 
at the conclusion.” Pet. Br. 28. But the same presumption 
should be accorded the moratorium in this case. Indeed, the 
process of fashioning the 1984 Regional Plan entailed “ex- 
tensive public involvement,” California ex rel. Van de Kamp 

v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1311 
(9th Cir. 1985), including participation by affected land- 
owners. And the announcement of a temporary development 

3 There is no basis, either in this case (see note 1, supra) or generally, 
for denying state and federal land-use regulators the “presumption of 
legitimacy,” United States Dep’t of State v. Ray, 502 U.S. 164, 179 (1991), 
that is generally accorded to the conduct of government officials. Takings 
claimants should, of course, be given an adequate opportunity to prove 
that particular governmental actions are abusive or irrational. But given 
the strong legitimate justifications for such temporary development 
moratoria, see Pet. App. 27-28, use of such planning mechanisms cannot 
fairly be presumed to reflect governmental bad faith. 

19 

ban certainly implied at least the possibility that petitioners 
and others could “obtain[] development permission at the 
conclusion.” Pet. Br. 28; compare Riverside Bayview Homes, 
474 U.S. at 127. 

A temporary development moratorium may understanda- 
bly be regarded by some property owners as increasing the 
burdens associated with the underlying permit requirement. 
Because a moratorium typically prevents the permit process 
from going forward at all, see Pet. App. 113, once the mora- 
torium expires, a landowner will then confront whatever fur- 
ther delays the permitting process itself entails. In addition, 
the practical effect of a moratorium is to suspend the appli- 
cation of substantive criteria to potential development pro- 
jects while it remains in effect; where (as here) it is contem- 
plated that new criteria will be issued at the end of the 
moratorium, it may also introduce an added measure of un- 
certainty as to whether (or to what extent) development of 
any particular tract will be allowed. And, finally, because no 
land-use agency is likely to employ moratoria on a routine 
basis, the bases for challenging the agency’s conduct of the 
permitting process may be more familiar and better estab- 
lished than the grounds for contesting a moratorium as arbi- 
trary or factually unjustified. See 5 U.S.C. 706(2). 

In the end, however, those differences in the nature or 
perception of a moratorium as compared with the ordinary 
operation of a permitting process either are differences in 
degree or reflect merely an unsettling of unilateral or sub- 
jective expectations concerning possible future development 
that are not in themselves protected by the Just Compensa- 
tion Clause. Those generalizations do not justify categorical 
treatment of development moratoria as per se takings. 

Agency permitting processes (and the experience of dif- 
ferent landowners in seeking permits under them) will 
themselves vary widely in their duration and complexity. 
The fact that a particular application process (or a particular 
landowner’s invocation of that process) lasts longer—per- 

20 

haps even much longer—than the average does not neces- 
sarily mean that the relevant agency has behaved unrea- 
sonably under the circumstances or that a taking has oc- 
curred. The per se rule described in Lucas applies by its 
terms “where regulation denies all economically beneficial or 
productive use of land,” 505 U.S. at 1015; the burden on the 
landowner that in extreme cases justifies a categorical ap- 
proach is the inability to develop the property, not the in- 
ability to have a permit application accepted for processing. 
If a particular moratorium significantly increases the total 
period during which a landowner is unable to develop his 
property, that difference in degree may be relevant to the 
Penn Central analysis, but it does not amount to a difference 
in kind warranting application of a per se rule. In fact, the 
agency’s resolution of recurring factual and policy issues 
during a planning moratorium may expedite its subsequent 
processing of individual permit applications. 

Because a land-use agency’s consideration of individual 
permit applications cannot be accomplished overnight, any 
legal regime that requires prior government approval has 
the necessary practical effect of temporarily foreclosing sig- 
nificant development during the application process. The 
requirement of prior government authorization thus reflects 
a “conscious governmental decision to freeze temporarily all 
use of property” (Pet. Br. 12) until the government has 
reached a final decision, even though the postponement of 
development is simply a means of preserving the status quo 
rather than an end in itself. Similarly here, the freeze on 
processing permits for new development was not imposed 
for its own sake, but was instead the byproduct of the com- 
plex and time-consuming nature of the planning process that 
was required before development could proceed. Although 
respondent’s decision to postpone processing of development 
permits until it completed the regional plan required by the 
Compact may have been more definitive and extensive than 
is typically the case when a land-use agency takes a particu- 

21 

lar permit application under advisement, that is scarcely a 
reason to treat the moratorium as a per se taking. Indeed, 
the features of a moratorium that might cause it to strike 
some landowners as unfair might also be seen as characteris- 
tics of orderliness, regularity, and equality of treatment in a 
planning process that will affect the entire community. In 
particular, the moratorium prevents the possibility that 
some landowners will be able to proceed in ways detrimental 
to remaining landowners. 

4. In determining whether proposed construction should 
be permitted on an individual parcel, a land-use agency im- 
plements broader policy goals. See, e.g., Suitum, 520 U.S. at 
738 (noting “the high degree of discretion characteristically 
possessed by land-use boards”). A rational system of land- 
use regulation seeks to ensure that similarly-situated prop- 
erty owners are treated equitably, and that permitting deci- 
sions on individual tracts reflect an awareness of actual or 
anticipated development in the surrounding area. A permit- 
ting agency that is simultaneously considering several de- 
velopment applications for tracts in close proximity to each 
other would be expected to assess the likely cumulative im- 
pacts of the various proposals, and might reasonably decline 
to render a final decision on any of the applications until it 
had determined the appropriate disposition of them all. If a 
significant change in the applicable development criteria was 
known to be imminent, a rational agency could take that fact 
into account as well in ruling on a pending permit applica- 
tion.4 

4 As one commentator has explained, “[t]he courts have long upheld 
the right of a municipality to deny administratively a building permit to a 
developer where the use would conflict with a proposed change in the 
zoning ordinance which has been aired at public hearing or published in a 
newspaper of general circulation.” Robert H. Freilich, Interim Develop- 
ment Controls: Essential Tools for Implementing Flexible Planning and 
Zoning, 49 J. Urb. Law 65, 86 (1971). 

22 

By the same token, if significant doubt exists as to what 
substantive land-use standards will be adopted in the near 
future, a rational permitting agency would certainly consider 
delaying action on a pending application until the new stan- 
dards were adopted. A contrary approach would simply ex- 
acerbate the risk that owners of adjacent parcels will be sub- 
ject to substantially different long-term use restrictions 
based on the fortuity that one owner submits a development 
application slightly before the other. That result would be at 
odds both with sound land-management principles and with 
the values that the Just Compensation Clause is intended to 
protect. 

Thus, with or without the use of formal temporary devel- 
opment moratoria, land-management agencies could legiti- 
mately defer action on individual permit applications pend- 
ing clarification or amendment of the substantive permitting 
criteria. Indeed, in a variety of situations, the courts have 
recognized the authority of federal administrative agencies 
to suspend action on permit requests or similar applications 
pending consideration of possible changes to the governing 
standards. See, e.g., Western Coal Traffic League v. Surface 
Transp. Bd., 216 F.3d 1168, 1172-1176 (D.C. Cir. 2000) (dis- 
cussing cases). Moreover, this Court has long recognized 
that “[i]n performing its important functions * * *, an 
administrative agency must be equipped to act either by 
general rule or by individual order. To insist upon one form 
of action to the exclusion of the other is to exalt form over 
necessity.” SEC v. Chenery Corp., 332 U.S. 194, 202 (1947); 
see, e.g., Mobil Oil Exploration & Producing S.E., Inc. v. 
United Distribution Cos., 498 U.S. 211, 228 (1991); Heckler v. 
Campbell, 461 U.S. 458, 461, 467-468 (1983); NLRB v. Bell 
Aerospace Co., 416 U.S. 267, 292-294 (1974). 

The Just Compensation Clause does not deprive a land- 
use agency of that flexibility and require it to adopt a system 
of case-by-case adjudication rather than rulemaking—or 
case-by-case deferral of individual permit applications rather 

23 

than a moratorium of general applicability—when the agency 
considers a problem that relates to a number of separate 
parcels. A formal, publicly-announced temporary mora- 
torium while the agency develops criteria of general applica- 
bility increases the predictability and transparency of the 
land-management process, and it provides an opportunity for 
broad public input that would be lacking if the agency sought 
to resolve recurring factual or legal issues in the ad hoc 
process of individual permit processing. Treatment of ex- 
press development moratoria as per se takings would create 
perverse incentives for land-use agencies to perform their 
functions in a less systematic and accountable way. 

5. Landowners who had not already obtained a building 
permit at the time the temporary moratorium went into ef- 
fect would not have had any reasonable expectation that 
they would be able to develop their property immediately. 
Any such “unilateral expectation” on a landowner’s part 
would have been inconsistent with the established require- 
ment that a landowner obtain a permit before commencing 
construction. Compare Ruckelshaus v. Monsanto Co., 467 
U.S. 986, 1005-1008 (1984). Moreover, although zoning or 
other laws in effect prior to the temporary moratorium 
might have allowed the landowners to obtain a permit for 
certain development if they had applied for one, the land- 
owners had no property interest in being able to do so, and 
the responsible legislatures and land-use agencies were free 
to amend the applicable laws, regulations, and plans. 

Under the law of both California and Nevada, as under the 
law of many States, a landowner ordinarily attains a “vested 
right” to proceed with development despite an intervening 
change in the law only if he has already received a permit 
and committed substantial resources in reliance thereon. 
See, e.g., Avco Cmty. Developers, Inc. v. South Coast Reg’l 
Comm’n, 17 Cal. 3d 785, 791 (1976), cert. denied, 429 U.S. 
1083 (1977); American W. Dev., Inc. v. City of Henderson, 
111 Nev. 804, 807 (1995). Only at that point does a landowner 

24 

have distinct investment-backed expectations, and a distinct 
property-type interest (beyond his ownership of the land it- 
self) in being able to proceed immediately with development. 
Compare Penn Central, 438 U.S. at 127-128; Mahon, 260 
U.S. at 412, 414. These longstanding state-law principles are 
entitled to substantial weight in applying the Just Compen- 
sation Clause to this setting. See Dolan, 512 U.S. at 388-391. 

6. As the court of appeals recognized, temporary devel- 
opment moratoria represent “an important land-use plan- 
ning tool with a well-established tradition.” Pet. App. 27; see 
id. at 109 (“[z]oning boards, cities, counties, and other agen- 
cies [have historically] used [interim planning moratoria] all 
the time to maintain the status quo pending study and gov- 
ernmental decision making”) (internal quotation marks omit- 
ted). As early as 1925, the California Supreme Court sus- 
tained the validity of an emergency interim ordinance that 
prohibited the construction of multi-family dwellings in part 
of Los Angeles while a comprehensive zoning plan was con- 
templated. Miller v. Board of Pub. Works of City of L.A., 
195 Cal. 477, 496-497 (1925), error dismissed, 273 U.S. 781 
(1927). The court explained: 

It is a matter of common knowledge that a zoning plan 
of the extent contemplated in the instant case cannot be 
made in a day. Therefore, we may take judicial notice of 
the fact that it will take much time to work out the de- 
tails of such a plan and that obviously it would be de- 
structive of the plan if, during the period of its incuba- 
tion, parties seeking to evade the operation thereof 
should be permitted to enter upon a course of construc- 
tion which might progress so far as to defeat in whole or 
in part the ultimate execution of the plan. 

195 Cal. at 496. Other courts of the same era likewise upheld 
the validity of interim land use planning ordinances. See, 

e.g., Downham v. City Council, 58 F.2d 784, 788 (E.D. Va. 
1932); Fowler v. Obier, 7 S.W.2d 219, 226 (Ky. 1928); Mc- 

25 

Curley v. City of El Reno, 280 P. 467, 469-472 (Okla. 1929); 
City of Dallas v. Meserole, 155 S.W.2d 1019, 1022-1023 (Tex. 
Civ. App. 1941). In 1953, the California Legislature enacted 
a law that essentially codified the principles of the Miller 
rule. Cal. Gov’t Code § 65806 (West 1955), superseded by 
Cal. Gov’t Code § 65858 (West 1997 & Supp. 2001). 

The moratorium at issue in this case, and the moratorium 
imposed by the Compact itself, were intended “to halt tem- 
porarily works of development in the region which might 
otherwise absorb the entire capability of the region for fur- 
ther development or direct it out of harmony with the ulti- 
mate plan.” 1980 Compact, Art. VI(c). The challenged 
moratorium therefore fits comfortably within an established 
land-management tradition. The potential application of 
interim development restrictions designed to maintain the 
status quo pending completion of a comprehensive plan—like 
the requirement of affirmative government authorization as 
a precondition for significant development of an individual 
tract (see pp. 11-16, supra)—is among the “background 
principles” (Palazzolo, 121 S. Ct. at 2464) that have long 
served to define the property interests of landowners within 
the Lake Tahoe region. So long as the 32-month moratorium 
at issue here was reasonable in scope and duration—a 
proposition that petitioners do not here contest—it did not 
give rise to a taking, even if it foreclosed immediate 
economically beneficial use of some parcels during the period 
that it was in effect. 

C. This Court’s Decision In First English Does Not Sug- 
gest That A Temporary Development Moratorium Ef- 
fects A Per Se Taking Of Property 

1. The Court in First English specifically noted that its 
decision “d[id] not deal with the quite different questions 
that would arise in the case of normal delays in obtaining 
building permits, changes in zoning ordinances, variances, 
and the like which are not before us.” 482 U.S. at 321 (em- 

26 

phasis added). The Court thus disavowed any suggestion 
that its holding encompassed government efforts to preserve 
the status quo pending a final decision as to the propriety of 
development. The underscored language, moreover, indi- 
cates that the Court did not distinguish between delays re- 
sulting from the government’s application of existing per- 
mitting standards to individual permit applications and de- 
lays resulting from actual or anticipated changes to the stan- 
dards themselves. 

2. In First English, the Court held that “where the gov- 
ernment’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.” 482 U.S. at 321. In 
holding that the case was ripe for decision, the Court empha- 
sized that the California Court of Appeal had assumed the 
existence of a taking, but had nevertheless affirmed the trial 
court’s dismissal of the landowner’s claim for damages on the 
ground that the remedy for any taking was limited to equi- 
table relief. Id. at 311. This Court found that “[t]he [state 
court’s] disposition of the case on these grounds isolates the 
remedial question for our consideration.” Ibid. The holding 
of First English was thus limited to the appropriate relief 
for an established (or assumed) taking; the Court did not de- 
cide the antecedent question whether a taking had occurred. 

3. The Court in First English framed the question pre- 
sented as whether the Constitution “require[s] compensation 
as a remedy for ‘temporary’ regulatory takings—those 
regulatory takings which are ultimately invalidated by the 
courts.” 482 U.S. at 310. The Court thus focused on devel- 
opment restrictions that are “retrospectively temporary,” 
Pet. App. 111—i.e., that are intended when adopted to be 
permanent and are “rendered temporary only when an ordi- 
nance that effects a taking is struck down by a court,” id. at 

30. Absent a requirement to pay compensation in that set- 
ting, a governmental body could impose draconian con- 

27 

straints on development, defend against the ensuing takings 
claims in court, and simply rescind the offending regulation 
without financial liability if the litigation terminated unfa- 
vorably. A development moratorium that is intended from 
the outset to remain in effect only for a limited period raises 
no comparable danger of manipulation. 

4. In discussing the remedial issue in First English, the 
Court observed, by way of analogy, that “[t]he United States 
has been required to pay compensation for leasehold inter- 
ests of shorter duration than” the period (slightly less than 
seven years) between the effective date of the challenged 
land-use restriction and the California Supreme Court’s de- 
nial of review. 482 U.S. at 319. As the district court in this 
case pointed out, at least two of the cases on which the First 
English Court relied “involved appropriations of property 
that were prospectively temporary—the government had 
appropriated leasehold interests with fixed termination 
dates.” Pet. App. 114. The district court believed that anal- 
ogy in First English supported the finding of a taking here. 
Ibid. 

The district court was mistaken for two reasons. First, 
this Court has distinguished for takings purposes between a 
permanent physical occupation and a temporary physical in- 
vasion of real property. See Loretto v. Teleprompter Man- 
hattan CATV Corp., 458 U.S. 419, 428, 433, 444 (1982); Lu- 
cas, 505 U.S. at 1015, 1028-1029. Any analogy between 
physical and regulatory takings therefore does not support 
the view that a temporary ban on economically productive 
uses of land effects a per se taking. Cf. Block v. Hirsh, 256 
U.S. 135, 157 (1921) (Holmes, J.) (“A limit in time, to tide 
over a passing trouble, well may justify a law that could not 
be upheld as a permanent change.”). 

Second, in the cases involving leasehold interests to which 
the district court referred—United States v. Petty Motor 
Co., 327 U.S. 372 (1946), and United States v. General Mo- 
tors Corp., 323 U.S. 373 (1945)—the governmental action 

28 

ousted the private occupant in favor of the government’s oc- 
cupying and using the property for its own purposes It 
therefore would have constituted a taking if the property 
had never been leased. Here, by contrast, the moratorium 
resulted in no interference with petitioners’ right to exclude 
others from their property, no occupation or use of the prop- 
erty by the government for its own purposes, and no depri- 
vation of any other fundamental “stick” in the bundle of 
rights associated with property. 

The Court may nevertheless assume, arguendo, that there 
could be circumstances in which even land-use regulation 
that was intended from the outset to be temporary should be 
analyzed under the Lucas per se takings approach, rather 
than under Penn Central. That would be so, however, only 
if the regulation precluded all economically viable use of 
property during the period it was in effect and also shared 
the other characteristics of the regulation that was found in 
Lucas to be a per se taking—i.e., if the regulation imposed 
markedly disproportionate burdens on isolated landowners 
rather than securing a reciprocity of advantage to a broad 
community, effectively pressed private property into public 
service (albeit for a finite period), and represented a signifi- 
cant departure from background property-law principles. 
Compare Lucas, 505 U.S. at 1017-1018, 1029-1031. That test 
is not satisfied in this case. Although the district court found 
(and the court of appeals assumed for purposes of its deci- 
sion) that petitioners’ tracts were insusceptible of any eco- 
nomically beneficial use during the 32-month period the 
moratorium was in effect, see Pet. App. 96-101, 33-34 n.20, in 
all other respects the moratorium differs sharply from the 
prohibition involved in Lucas. 

As the district court found, the temporary development 
restrictions at issue in this case “had wide-spread applica- 
tion, and were not aimed at an individual landowner.” Pet. 
App. 86; compare Lucas, 505 U.S. at 1008 (noting that the 
plaintiff’s “intention with respect to the lots was to do what 

29 

the owners of the immediately adjacent parcels had already 
done: erect single-family residences”).5 The moratorium se- 
cured a reciprocity of advantage to landowners in the Lake 
Tahoe area. Because the value of petitioners’ tracts is ulti- 
mately dependent on the preservation of the region’s natural 
beauty, respondent’s efforts to prevent unconstrained devel- 
opment on a temporary basis during an orderly planning 
process thus benefited petitioners as well as other landown- 
ers and the general public. See Kelly v. Tahoe Reg’l Plan- 
ning Agency, 855 P.2d 1027, 1035 (Nev. 1993), cert. denied, 
510 U.S. 1041 (1994). 

The moratorium did not reflect a final determination that 
maintenance of the relevant lands in their natural state was 
necessary or desirable for its own sake. It was instead 
adopted simply to preserve the status quo pending comple- 
tion of a comprehensive regional plan. Its promulgation 
therefore creates no “heightened risk that private property 
is being pressed into some form of public service.” Lucas, 
505 U.S. at 1018. 

Finally, requiring a landowner to defer development for a 
reasonable period, while government officials determine 
whether improvement of the land is consistent with criteria 

5 The 32-month moratorium affected approximately 8000 to 9000 
undeveloped single-family lots in the Lake Tahoe Basin in the early 1980’s. 
See J.A. 74-75. Less than half of the acreage zoned for residential de- 
velopment in the Basin was actually developed when the TRPA morato- 
rium was instituted. See Tahoe Regional Planning Agency, Environ- 
mental Impact Statement for Adoption of a Regional Plan for the Lake 
Tahoe Basin 11 (Feb. 1983). The fact that the moratorium was limited to 
new development, and did not require the destruction of existing 
buildings, is neither anomalous nor unfair. Respondent’s decision not to 
disturb existing uses of land in the Basin was consistent with traditional 
regulatory practice. See, e.g., Penn Central, 438 U.S. at 125 (“Zoning laws 
generally do not affect existing uses of real property.”). A requirement 
that existing homes be leveled, moreover, would have destroyed distinct 
property interests of their owners—i.e., the houses themselves—that the 
owners of undeveloped parcels did not have. 

30 

that are necessary to protect vital natural resources, fully 
accords with applicable background property-law princi- 
ples—“those common, shared understandings of permissible 
limitations derived from a State’s legal tradition.” Palaz- 
zolo, 121 S. Ct. at 2464. The requirement of prior govern- 
ment authorization of significant development was “a pre- 
existing limitation upon the landowner’s title.” Lucas, 505 
U.S. at 1028-1029. Respondent might have deferred ruling 
on any particular permit application for a reasonable period 
of time pending completion of the 1984 Regional Plan, with- 
out effecting a taking of the parcel for which development 
authorization was sought. The formal announcement that a 
temporary development ban would also apply to other par- 
cels benefits rather than injures the parcel owner, and it 
provides no basis for triggering a per se constitutional rule. 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

JOHN C. CRUDEN 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

PETER H. OPPENHEIMER 

Attorney 

NOVEMBER 2001