Shaken, Not Stirred: Has Tahoe-Sierra Settled or Muddied the Regulatory Takings Waters?

Abstract

On April 23, 2002, the U.S. Supreme Court issued its long-awaited decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. Commentators and land use planners were dreading the decision, fearing that the Court would continue its 15-year pattern of increasing property protections at the expense of state and local governments engaged in land use planning. But in a surprising moment, the Court ruled 6-3 in favor of the Tahoe Regional Planning Agency's nearly three-year moratorium on all development within the Lake Tahoe basin. In so holding, the Court reaffirmed the potentially moribund Penn Central Transportation Co. v. City of New York balancing test for regulatory takings, arguably overruled or at least dramatically limited the per se takings test articulated in Lucas v. South Carolina Coastal Council, sidestepped the question of whether a three-year moratorium constituted a temporary taking under, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, and potentially revived the apparent distinction between facial and as-applied challenges.

Does Tahoe-Sierra truly mark a reversal of the Court's increasingly solicitous analysis of private property rights? Probably not. We must be cautious not to read into this decision certainty and precedent that is not there, for the factual record of the case was narrowly tailored to raise very limited questions, as reflected in the word of the grant of certiorari, and the answers to those questions can be construed very conservatively. Yet the decision may give cause for some celebration by land use planners and environmentalists, as well as lower courts and legal scholars, as it demonstrates the Court's willingness to step back from its seemingly blind rush to protect property rights at all costs — a stampede that has had the unintended consequence of transforming takings jurisprudence into a muddy quagmire. Indeed, the decision could prove monumental in its shift away from Draconian per se takings rules and its reaffirmation of Penn Central ad hoc balancing. While some might bemoan this shift for the lack of clarity it produces, others acknowledge that uncertainty is merely a necessary byproduct of the ultimate question to be answered in all takings cases: when has a regulation gone too far? To answer this question, courts must weigh many competing concerns, concerns that are present whether or not categorical tests are used.

Keywords: regulatory takings, land use, per se takings test, balancing test, Tahoe-Sierra