Office of the Circuit Executive
U.S. Court of Appeals for the Ninth Circuit
Case Name:
TAHOE-SIERRA V TAHOE REGIONAL PLANNING AGENCY
Case Number:
Date Filed:
99-15641
10/20/00
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAHOE-SIERRA PRESERVATION
COUNCIL, INC.; RICHARD A.
ALLISON; ALPINE INVESTMENT
COMPANY, LTD.; AMCO, INC.;
JEFFREY B. ANDERSEN; BETH C.
ANDERSEN; PETER J. ANDERSEN;
JANET I. ANDERSEN; DONALD F.
ARCHIBALD; JEAN L. ATHERTON;
DAVID E. BAKER; MAXINE A.
BAKER; JOHN H. BAKER; PIERINO C.
BARENGO, et al.,
Plaintiff-Appellee-
Nos. 99-15641
Cross-Appellant,
99-15771
v.
D.C. No. CV-84-00257-ECR
TAHOE REGIONAL PLANNING
ORDER
AGENCY, a separate legal entity
created pursuant to an interstate
compact between the States of
California and Nevada; the voting
members of the governing body of
the Tahoe Regional Planning
Agency including TONY CLARK,
CHESTER A. GIBBS, ALEXANDER
HAAGEN, III, STAN HANSEN,
THOMAS HSIEH, JAMES KING,
ROBERT PRUETT, JAMES S. REED,
LARRY SEVINSON, THOMAS STEWART,
13249
WILLIAM D. SWACKHAMER, PEGGY
TWEDT, RONALD D. WESTERGARD
and NORMAN C. WOODS; STATE OF
CALIFORNIA; STATE OF NEVADA,
Defendant-Appellant-
Cross-Appellee.
Filed October 20, 2000
Before: Henry A. Politz,* Stephen Reinhardt, and
Michael Daly Hawkins, Circuit Judges.
Order; Dissent by Judge Kozinski
_________________________________________________________________
ORDER
Judges Politz, Reinhardt, and Hawkins voted to deny the
petition for rehearing. Judges Reinhardt and Hawkins voted to
deny the petition for rehearing en banc and Judge Politz rec-
ommended denial of the petition for rehearing en banc.
A judge of the court called for a vote on the petition for
rehearing en banc. A vote was taken, and a majority of the
active judges of the court failed to vote for en banc rehearing.
Fed. R. App. P. 35(f).
The petition for rehearing and the petition for rehearing en
banc are denied.
_________________________________________________________________
*The Honorable Henry A. Politz, Senior United States Circuit Judge for
the Fifth Circuit Court of Appeals, sitting by designation.
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KOZINSKI , Circuit Judge, with whom Circuit Judges
O'SCANNLAIN, TROTT, T.G. NELSON and KLEIN-
FELD join, dissenting from the order denying the petition for
rehearing en banc:
The panel does not like the Supreme Court's Takings
Clause jurisprudence very much, so it reverses First English
Evangelical Lutheran Church v. County of Los Angeles, 482
U.S. 304 (1987), and adopts Justice Stevens's First English
dissent. Because we are not free to rewrite Supreme Court
precedent, I urged our court to take this case en banc. By vot-
ing not to rehear, we have neglected our duty and passed the
burden of correcting our mistake on to a higher authority.
1. For almost twenty years, Lake Tahoe property owners
have battled the Tahoe Regional Planning Agency (TRPA),
which has blocked the owners' efforts to build homes on their
land. The primary issue on this appeal, the fourth in this inter-
minable case, is a temporary moratorium that required owners
to leave their land idle for almost three years. The moratorium
is only one of a series of restrictions and regulations that have
prevented the plaintiffs--largely families who purchased lots
in the 1970s hoping to build vacation or retirement homes--
from making any use whatsoever of their property. After a
bench trial, the district court found that the regulation
deprived the owners of the use of their property for three
years, and so held they were entitled to compensation. The
panel does not set aside the lower court's finding. Instead, it
reverses the judgment because, in its view, a temporary regu-
lation can never be a regulatory taking.
The government may conscript private property for public
purposes, but the Fifth Amendment requires that it pay the
owner for it. See U.S. Const. amend. V ("nor shall private
property be taken for public use, without just compensation").
The requirement of just compensation ensures that the few are
not forced to bear the cost of uses that benefit the many.
Although a taking is most obvious where the government
13251
directly appropriates the property, physical occupation is not
necessary. "[W]hile property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a tak-
ing." Pennsylvania Coal Co. v. Mahon , 260 U.S. 393, 415
(1922). The Supreme Court has explained time and again that
where a regulation deprives the owner of all use and enjoy-
ment of his property, this amounts to a taking and the govern-
ment must pay. See Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1016 (1992). That's because the "total depri-
vation of beneficial use is, from the landowner's point of
view, the equivalent of a physical appropriation. " Id. at 1017.
This compensation requirement also guarantees that the gov-
ernment does not do by regulation what it cannot do through
eminent domain--i.e., take private property without paying
for it.
Of course, most land-use regulations are not takings and do
not call for compensation. A regulation effects a taking only
where it denies the owner "all economically beneficial or pro-
ductive use of land." Id. at 1015. Lucas held that a South Car-
olina agency took two beachfront lots when it promulgated an
environmental regulation that prevented the owner from
building on his property. The Court concluded that, when the
property owner is required "to sacrifice all economically ben-
eficial uses in the name of the common good, that is, to leave
his property economically idle, he has suffered a taking." Id.
at 1019.
The only difference between this case and Lucas is that the
regulation here had a finite duration. It was originally sup-
posed to expire after two years and then was extended for
another eight months. (In fact, its prohibitions continue to this
day under subsequent development plans.) So the question is
whether there is something special about a finite moratorium
that relieves the government from its duty to compensate. The
Supreme Court answered that question in First English when
it said that " `temporary' takings which, as here, deny a land-
owner all use of his property, are not different in kind from
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permanent takings, for which the Constitution clearly requires
compensation." 482 U.S. at 318 (emphasis added).
First English concerned a temporary development morato-
rium that Los Angeles enacted in response to a flood in the
Angeles National Forest. First English Church challenged the
ordinance, which prevented it from rebuilding damaged build-
ings. The California courts ruled that the regulation could
only be a taking if permanent; if, on the other hand, the
county decided to rescind the regulation, it ceased to be a tak-
ing. The U.S. Supreme Court disagreed, holding that"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." Id. at 321.
Justice Stevens dissented from First English because he
disagreed with the Court's "conclu[sion] that all ordinances
which would constitute takings if allowed to remain in effect
permanently, necessarily also constitute takings if they are in
effect for only a limited period of time." Id. at 322 (Stevens,
J., dissenting). Justice Stevens would have held that a tempo-
rary regulation cannot be a taking, even though it deprives the
owner of all present uses, because the property retains value
based upon its future uses. That reasoning, embraced by no
other member of the Supreme Court, is adopted by the panel
in this case.
While the opinion nowhere cites Justice Stevens's First
English dissent, the reasoning--and even the wording--bear
an uncanny resemblance. Here's why Justice Stevens dis-
agreed with First English:
Regulations are three dimensional; they have
depth, width, and length. As for depth, regulations
define the extent to which the owner may not use the
property in question. With respect to width, regula-
tions define the amount of property encompassed by
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the restrictions. Finally, and for purposes of this
case, essentially, regulations set forth the duration of
the restrictions. It is obvious that no one of these ele-
ments can be analyzed alone to evaluate the impact
of a regulation, and hence to determine whether a
taking has occurred. . . . [I]n assessing the economic
effect of a regulation, one cannot conduct the inquiry
without considering the duration of the restriction.
. . . Why should there be a constitutional distinction
between a permanent restriction that only reduces
the economic value of the property by a fraction--
perhaps one-third--and a restriction that merely
postpones the development of a property for a frac-
tion of its useful life--presumably far less than a
third?
Id. at 330, 332 (Stevens, J., dissenting). And here is the key
passage of the panel's opinion:
Property interests may have many different
dimensions. For example, the dimensions of a prop-
erty interest may include a physical dimension
(which describes the size and shape of the property
in question), a functional dimension (which
describes the extent to which an owner may use or
dispose of the property in question), and a temporal
dimension (which describes the duration of the prop-
erty interest) . . . . A planning regulation that pre-
vents the development of a parcel for a temporary
period of time is conceptually no different than a
land-use restriction that permanently denies all use
on a discrete portion of property, or that permanently
restricts a type of use across all of the parcel. Each
of these three types of regulation will have an impact
on the parcel's value . . . . There is no plausible basis
on which to distinguish a similar diminution in value
that results from a temporary suspension of develop-
ment.
13254
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency , 216 F.3d 764, 774, 776, 777 (9th Cir. 2000)
(citation omitted). Although claiming its opinion is fully con-
sistent with First English, the panel plagiarizes Justice Ste-
vens's dissent.
The panel opinion creates a conflict with Tabb Lakes, Ltd.
v. United States , 10 F.3d 796 (Fed. Cir. 1993), which fol-
lowed the majority's reasoning in First English . In so doing,
Tabb Lakes recognized that "a taking, even for a day, without
compensation is prohibited by the Constitution." Id. at 800.
Under the panel's ruling in our case, a taking for a day could
never require compensation, because despite the temporary
deprivation, the property would retain almost all of its value
based upon its expected future uses.
2. One problem with the panel's theory, and the theory of
Justice Stevens's dissent, is that it views the regulation's
effect on a property's value as the taking itself, rather than as
a test for whether the government has deprived the owner of
the benefits of his property. A regulation is a taking not
because it destroys value, but because "total deprivation of
beneficial use is, from the landowner's point of view, the
equivalent of a physical appropriation." Lucas, 505 U.S. at
1017 (emphasis added). In the case of regulations without a
sunset provision, the deprivations of value and use are one
and the same because, where the government permanently
prevents the owner from putting his property to any beneficial
use, no potential buyer would offer a dime for it. 1
_________________________________________________________________
1 In fact, there is no clear-cut distinction between a permanent prohibi-
tion and a temporary one. Governmental policy is inherently temporary
while land is timeless. Even a permanent prohibition can be rescinded and,
in the fullness of time, almost certainly will be. The land may retain mar-
ket value based on speculation that it will someday become usable because
the regulation will be revoked. See, e.g., Florida Rock Indus., Inc. v.
United States, 791 F.2d 893, 902 (Fed. Cir. 1986) (recognizing that land
might have value under a permanent regulation because a buyer could "bet
13255
But this identity between value and use obviously does not
hold true in the case of a temporary taking. The government
can deprive the owner of all present use, but the property
might still retain value based upon its future uses. I emphasize
"might," because so-called temporary moratoria have a habit
of living beyond their purported termination dates. In this
case, a series of consecutive development moratoria has pre-
vented the landowners from building any homes on their lots
for the two decades since the start of this litigation. If a local
government can evade its constitutional obligations by
describing a regulation as "temporary," we create a sizable
loophole to the Takings Clause. Why would a government
enact a permanent regulation--and risk incurring an obliga-
tion to compensate--when it can enact one moratorium after
another, perhaps indefinitely? Under the theory adopted by
the panel, it's hard to see when a property owner would ever
state a takings claim against such a scheme.2
Consider also the effect of this theory on non-regulatory
takings. Let's say the government decides to use your house
as a warehouse for three years. You are locked out and the
government has the run of the property for that period. Is
there any doubt that you have suffered a taking for which you
should be compensated? Of course not. Why should the case
be any different if the government simply prohibits you from
_________________________________________________________________
that the prohibition of rock mining, to protect the overlying wetlands,
would some day be lifted"); Florida Rock Indus., Inc. v. United States, 8
Cl. Ct. 160, 166 n.6 (1985) ("If passively holding land against the possibil-
ity that restrictions on its use will be lifted were deemed a productive eco-
nomic use, property would never be rendered useless by regulation and
there could be no such thing as a regulatory taking.").
2 Waiting to see whether a temporary regulation is extended indefinitely
will, of course, raise very serious statute of limitations and laches prob-
lems. Indeed, in this very case, the panel holds that the statute of limita-
tions bars the property owners' challenge to a regulation that succeeded
the temporary moratorium (and continues to prevent them from building
homes on their property). See Tahoe-Sierra, 216 F.3d at 789.
13256
using your house for three years, but never does get around
to using it as a warehouse?
Indeed, it's well-established that temporary physical tak-
ings require compensation. See, e.g., Kimball Laundry Co. v.
United States, 338 U.S. 1 (1949); United States v. Petty Motor
Co. , 327 U.S. 372 (1946); United States v. General Motors
Corp. , 323 U.S. 373 (1945). The panel opinion dismisses
these cases because they involved physical takings, rather
than regulatory ones. See Tahoe-Sierra, 216 F.3d at 779 ("The
fact that just compensation was required in these cases, how-
ever, has no bearing on the question before us."). But First
English rejected that distinction and found that these cases
provided "substantial guidance" for its holding that all tempo-
rary takings, including regulatory ones, required compensa-
tion. 482 U.S. at 318. Again, the panel substitutes its own
view of takings law for that of the Supreme Court.
These are all big problems with the panel's theory. But, of
course, the biggest problem is that First English rejected it.
First English held that a taking occurs when the government
deprives an owner of the use of his property, even temporar-
ily. See 482 U.S. at 318 (" `[T]emporary' takings which, as
here, deny a landowner all use of his property, are not differ-
ent in kind from permanent takings, for which the Constitu-
tion clearly requires compensation." (emphasis added)); see
also Lucas , 505 U.S. at 1033 (Kennedy, J., concurring) ("It is
well established that temporary takings are as protected by the
Constitution as are permanent ones."). Nothing in the opinion
--or any other3 --suggests otherwise. By adopting Justice
_________________________________________________________________
3 The panel cites a pre-First English decision, Agins v. City of Tiburon,
447 U.S. 255 (1980), as a case that applied the panel's rule against "con-
ceptual severance in the temporal dimension." Tahoe-Sierra , 216 F.3d at
776. But that case is clearly distinguishable. In Agins , the owner sought
compensation for a taking that never occurred. The city brought a condem-
nation proceeding against the owner but subsequently abandoned the suit.
The Court rejected the owner's claim that the suit's temporary effect on
the value of his property was an action requiring compensation. See Agins ,
447 U.S. at 263 n.9. That's quite different from a regulation that deprives
an owner of all use of his property for a period of time.
13257
Stevens's dissent, the panel places itself in square conflict
with the majority's opinion in First English.
Of course, the panel doesn't admit that its opinion aligns
itself with Justice Stevens's dissent, so it must pretend First
English said nothing relevant to this case. And so the panel
does, claiming that First English does not address whether a
temporary moratorium is a taking, because it was"not even
a case about what constitutes a taking." Tahoe-Sierra, 216
F.3d at 777. It is true that First English did not have to deter-
mine whether there was a temporary taking, because it
accepted the state court's conclusion that a regulation prohib-
iting all development was a taking while it was in effect. (The
Supreme Court endorsed that result a few years later in
Lucas.) But First English did decide that a temporary regula-
tion is "not different in kind" from a permanent one: If either
deprives the owner of all use of his property, then the owner
is entitled to compensation for the taking. First English, 482
U.S. at 318. The panel does not deny that the moratorium
here, like the regulation in Lucas, deprived the owners of the
use of their property for its duration. But it ignores First
English 's requirement that the owners be compensated for a
temporary taking.
The panel also takes shelter from First English in the
Supreme Court's acknowledgment that it did " `not deal with
the quite different questions that would arise in the case of
normal delays in obtaining building permits, changes in zon-
ing ordinances, variances, and the like which are not before
us.' " Tahoe-Sierra, 216 F.3d at 778 n.17 (quoting First
English , 482 U.S. at 321). But that language in First English
hardly authorizes the panel to ignore the decision altogether.
Rather, it recognizes that a temporary taking only occurs
when there is in fact a taking. Delays in obtaining a building
permit, changes in zoning ordinances, or other temporary
restrictions will not require compensation unless they deprive
the landowner of all economically beneficial uses of the prop-
erty for their duration. Here, the three-year prohibition on
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construction does not compare with the inherent delay in
obtaining a permit or the frictional delay in the permitting
process. The regulation clearly blocked all construction dur-
ing the moratorium period.
Justice Holmes noted long ago that "a strong public desire
to improve the public condition is not enough to warrant
achieving the desire by a shorter cut than the constitutional
way of paying for the change." Pennsylvania Coal, 260 U.S.
at 416. First English recognized that the costs its decision
imposed upon local regulators "necessarily flow from any
decision upholding a claim of constitutional right; many of
the provisions of the Constitution are designed to limit the
flexibility and freedom of governmental authorities, and the
Just Compensation Clause of the Fifth Amendment is one of
them." First English, 482 U.S. at 321. The panel's desire to
ease local governance does not justify approving means that
violate rights secured by the Fifth Amendment as authorita-
tively interpreted by the Supreme Court.