Copyright 2002 The New York Times Company The New
York Times
April 24, 2002, Wednesday, Late Edition -
Final
SECTION: Section A; Page 1; Column
1; National Desk
LENGTH: 1298
words
HEADLINE: JUSTICES WEAKEN MOVEMENT BACKING
PROPERTY RIGHTS
BYLINE: By LINDA GREENHOUSE
DATELINE:
WASHINGTON, April 23
BODY: The
Supreme Court ruled today that a government-imposed moratorium on property
development, even one that lasts for years, does not automatically amount to a
"taking" of private property for which taxpayers must compensate the
landowners.
The 6-to-3 decision was a sharp setback for
the property rights movement, which has scored many recent successes in the
Supreme Court. The ruling came in a case that sought millions of dollars in
compensation for a prolonged restriction on development along the shores of Lake
Tahoe.
The plaintiffs, hundreds of people who had
bought undeveloped lots in the expectation of building houses on the scenic
lake, argued that a restriction that even temporarily deprives property owners
of all "economically viable" use of their land is a taking for which the
Constitution requires compensation.
Supreme Court
decisions over the last 15 years had suggested that this in fact might be the
law, a prospect that galvanized a broad coalition of government and planning
groups to urge the justices to reject such a categorical rule. The Bush
administration entered the case against the property owners.
Writing for the court today, Justice John Paul Stevens said, "A rule
that required compensation for every delay in the use of property would render
routine government processes prohibitively expensive or encourage hasty decision
making." He added: "Such an important change in the law should be the product of
legislative rule making rather than adjudication."
The
complex law of "takings" is based on the Fifth Amendment's provision that
private property shall not "be taken for public use without just
compensation."
Today's decision had the effect of
limiting some of the court's recent property rights rulings and left property
rights advocates scrambling to minimize the scope of their defeat, at least for
public consumption. One such group, the Pacific Legal Foundation, called the
decision "an unfortunate blip in the forward progress of property rights."
On the other side, Community Rights Counsel, a public
interest law firm that filed a brief for government groups that included the
Council of State Governments, the National League of Cities and the National
Governors Association, called the decision "the best news from the Supreme Court
on takings law in more than 20 years."
The majority
opinion was joined by Justices Sandra Day O'Connor, Anthony M. Kennedy, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Chief Justice William H.
Rehnquist and Justice Clarence Thomas both filed dissenting opinions, and
Justice Antonin Scalia, usually the court's most vocal advocate of increased
protection for private property rights, signed both of those opinions without
writing one of his own.
For Justice Scalia, the
decision today in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning
Agency, No. 00-1167, must have been a particularly bitter defeat in two
respects.
First, the majority rejected an expansive
ruling of one of his most important opinions, a 10-year-old decision called
Lucas v. South Carolina Coastal Council in which the court announced for the
first time that a land-use regulation that, while leaving the property in the
owner's hands, permanently deprived it of all economic use was a "categorical
taking" that must be compensated.
The Lucas decision
breached what had been a doctrinal wall between a physical taking, in which the
government actually takes possession of private property and for which
compensation has always been required, and a "regulatory taking," in which the
government restricts the owner's use of the property.
Under the court's precedents, regulatory takings were subject to a
case-by-case balancing test that weighed the government's interests against the
owner's legitimate expectations. But the Lucas case involved a regulatory
taking, an environmental ban on coastal development, so the decision raised the
prospect that even temporary restrictions might be subject to the categorical
rule.
The court today made clear that the distinction
between a physical and a regulatory taking would remain a vital one. Justice
Stevens relegated the Lucas decision to "the extraordinary case in which a
regulation permanently deprives property of all value," a rule with no
application to a temporary even if prolonged moratorium.
As Justice Stevens explained the reason for treating the two categories
of takings differently: "Land-use regulations are ubiquitous and most of them
impact property values in some tangential way -- often in completely
unanticipated ways. Treating them all as per se takings would transform
government regulation into a luxury few governments could afford. By contrast,
physical appropriations are relatively rare, easily identified, and usually
represent a greater affront to individual property rights."
In a second defeat for Justice Scalia, the court revisited a property
rights case it had inconclusively decided last June. In that case, Palazzolo v.
Rhode Island, the court held by a 5-to-4 vote that restrictions on a coastal
landowner's use of his property might amount to a taking and sent the case back
to the Rhode Island courts to decide whether a taking had actually occurred.
Two members of Justice Kennedy's majority in that case,
Justices O'Connor and Scalia, battled in separate opinions over what factors the
state courts should consider. Justice O'Connor argued that "all relevant
circumstances" should be weighed, cautioning that because the restriction was
already in place when the land owner acquired the property, the courts should
guard against a "windfall" takings award. Justice Scalia advocated a flat rule:
the pre-existing restriction should have no bearing on the analysis.
The majority today firmly embraced Justice O'Connor's
position over Justice Scalia's. Courts should examine "a number of factors
rather than a simple mathematically precise formula," Justice Stevens said,
quoting from her concurring opinion.
Today's decision
upheld a ruling by the United States Court of Appeals for the Ninth Circuit in
San Francisco that no categorical taking had occurred in two sequential
regulations issued by a regional planning agency that blocked development around
Lake Tahoe for 32 months from 1981 to 1984.
The Tahoe
Regional Planning Agency was set up under an interstate compact between
California and Nevada, which share the Lake Tahoe coastline. Concerned that the
lake's famously crystalline water was being degraded by run-off from developed
areas above the shore, the agency used the moratorium to study the problem and
develop a long-term land-use plan.
In his dissenting
opinion, Chief Justice Rehnquist objected that the court should have considered
a longer period, beginning in 1981, in which development was restricted. In any
event, he said, "a distinction between 'temporary' and 'permanent' prohibitions
is tenuous" and had been effectively erased by the Lucas decision. "The
rationale for the Lucas rule applies just as strongly in this case," the chief
justice said.
One important aspect of the decision was
its reaffirmation of a doctrine, disputed by property rights advocates, known as
the "parcel as a whole" rule. Under this rule, the analysis of whether a
regulation that affects only part of a piece of land, typically a wetlands or
wildlife habitat, must take into account the impact on the property as a whole
and not just on the regulated portion. Professor Patrick A. Parenteau, a land
use expert at Vermont Law School, said in an interview today that without the
protection of the "parcel as a whole" rule, much environmental land use
regulation would be considered a taking and would be prohibitively
expensive.