Symposium

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

May local officials impose moratoria without regard to fairness? Of course not. Courts use the due-process clause and other legal doctrines to ensure that moratoria are reasonable in scope and duration and imposed in good faith.

But reading the takings clause to require compensation for every moratorium, no matter how reasonable, would constitute blatant judicial activism. The Constitution's plain text requires compensation only where property is "taken," a term that suggests physical appropriation of land and does not readily embrace mere land-use regulation. Justice Antonin Scalia, writing for the Supreme Court in 1992, reminded us that for the first 150 years of our nation's history, courts applied the takings clause only to appropriations and physical invasions of property.

To be sure, in a seminal ruling of Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court ruled that in extreme situations, land-use controls also may work a taking. But with due fidelity to the text and original understanding of the Constitution, the Supreme Court has made clear that regulation is a taking only in the rare case where the economic harm is so severe that it constitutes the functional equivalent of a physical appropriation. Most moratoria come nowhere close to this high standard. No court in the country has held that every temporary moratorium is a taking.

An activist application of the takings clause to every moratorium severely would undermine federalism. Land-use planning is quintessentially local in nature. Local officials are best positioned to address land-use issues and are most politically responsive to all affected landowners. Having federal judges look over the shoulders of local planners, city councils and county boards -- threatening to impose financially ruinous compensation awards for every moratorium -- would cause a huge power shift over land-use issues away from local officials to unelected, politically unaccountable, federal judges. Yet, in effect this is precisely the position advanced by the landowners in the Tahoe moratorium case.

Lake Tahoe is the world's largest Alpine lake, covering more than 192 square miles. Surrounded by the snow-capped peaks of the Sierra Nevada mountains, the lake is world-renowned for its remarkable clarity. Mark Twain wrote that, in 80 feet of water, "every little pebble was distinct, every speckled trout, every hand's-breadth of sand.... The water was not merely transparent, but dazzlingly, brilliantly so." He concluded that "with the shadows of the mountains brilliantly photographed upon its still surface ... it must be the fairest picture the whole earth affords." Lake Tahoe indisputably is a national treasure.

The lake's beauty and popularity, however, contain the seeds of its own destruction, for increased development in the Tahoe Basin slowly is ruining the lake. Homes, roads, parking lots and other impervious surfaces cover sensitive lands that previously absorbed rain and snowmelt. The increased runoff contains pollutants that spur the growth of algae, and the lake now is losing one foot of clarity each year. If development were uncontrolled, the lake's cobalt-blue waters would turn green and opaque for all eternity.