Symposium

0 Comments | Insight on the News, Feb 11, 2002 | by Harold Johnson, | Timothy J. Dowling

Q: does a temporary moratorium on construction constitute a `taking'?

YES: contrary to common sense, at Lake Tahoe, `temporary' is spelled f-o-r-e-v-e-r.

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

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

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

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

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

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

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

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

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

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

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

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

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

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