Liberty Matters News Service

April 30, 2002

Tahoe Case Leaves Door Open for Property Owners

By a 6-3 margin, the U.S. Supreme Court refused to rule that the 32-month moratoria placed on land development at Lake Tahoe constituted, in and of themselves, a taking of property.  The majority included Justices Kennedy and O’Connor who are considered “swing justices” on property rights matters.  The ruling, however, does not give government a free hand in land use planning.  Rather, the Court left open to property owners the option of presenting a taking case based upon proof of diminishment of economic value caused by a land use regulation. The Court pointed out that this ruling is narrowly limited to claims that temporary restrictions are takings, regardless of proof of value. In Tahoe, property owners did not attempt to prove diminishment of economic use of their land.  Moreover, their claims of restrictions for a period longer than 32 months were barred by statutes of limitations. The Court stated that, as a result of the limited nature of the claim, the “narrow inquiry” was “whether the mere enactment of the regulations constituted a taking.”  The Court rejected the property owner’s theory, choosing instead to keep in place the rule of Penn Central Trans. Co. v. New York City, which requires that a regulatory taking decision must rest upon analysis of “a complex of factors including…economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.” The Court made it clear that its ruling does not mean that all land use moratoria are free from the requirements of the Fifth Amendment:  “the answer to the abstract question whether a temporary moratorium effects a taking is neither ‘yes, always’ nor ‘no, never;’ the answer depends upon the particular circumstances of the case.”  The Court re-affirmed its commitment to Justice Holmes’ statement that “if regulation goes too far it will be recognized as a taking.”  The question of whether a regulation has gone “too far” is left to a case by case “careful examination and weighing of all the relevant circumstances.” In an effort to point the majority in a different direction, Chief Justice Rehnquist emphasized the full suspension of development, which lasted more than six years.  But, the majority refused to analyze the case in such fashion because the parties had not argued the case on that basis.  Although Tahoe was not the victory property owners hoped for, we can still hold land use regulators to the same standard applicable prior to the Tahoe decision.

Senate Committee Approves Community Character Act

The Senate Environment & Public Works Committee approved S. 975, the Community Character Act, on Friday, April 26th, and under the leadership of Chairman, Jim Jeffords, I, VT, managed to hide their actions from the scrutiny of the public, an unfortunate, but all too frequent abuse of power.   The bill is a serious threat to private property rights because the federal government will control local zoning regulations leading to “smart growth” mandates when communities update their zoning regulations and take advantage of the federal grant program.  In a series of moves many felt akin to the old “shell game,” the Committee meeting place was finally revealed to potential spectators who were told that the vote would be closed to the public.  Mr. Jeffords attempted to move the bill on voice vote, but Republicans insisted the votes be recorded.   In the end, S. 975 passed, 12-7.  Those in favor were two Republicans, Lincoln Chaffee (RI) and Arlen Specter (PA) and Democrats Max Baucus (MT), Harry Reid (NV), Bob Graham (FL), Joseph Lieberman (CT), Barbara Boxer (CA), Ron Wyden (OR), Thomas Carper (DE), Hillary Clinton (NY), Jon Corzine (NJ), and Jim Jeffords (I-VT).  Republicans against the bill: Michael Crago (ID), Ben Nighthorse Campbell (CO), Chris Bond (MO), George Voinovich (OH), Bob Smith (NH), James Inhofe (OK), and John Warner (VA).  Inhofe said,  “I am opposing this legislation we are about to railroad through,” and asked that his objections be entered into the record.
Bill to Give Feds Control of Zoning Kept Private 

Arkansas River Shiner Habitat Challenged

The Arkansas River Shiner Coalition filed a lawsuit in Federal District Court in Albuquerque, NM, April 25, 2002, charging that the U.S. Fish and Wildlife Service “failed to follow its own definition for critical habitat and has failed to use adequate scientific and economic evidence,” said Ross Wilson, Texas Cattle Feeders Association vice president.  “We believe the Fish and Wildlife Service has violated the Endangered Species Act by failing to conduct a proper economic analysis of their designation of critical habitat for the shiner.”  When the shiner was listed as threatened, in November 1998, the Service concluded critical habitat designation would not be beneficial.  The Service reversed that position in March 2001 as result of a court-ordered settlement of a lawsuit by the Center for Biological Diversity. The economic impact to landowners could be significant since they work closely with federal agencies with cost-share projects involving land and water use that would trigger Section 7(a) of the Act, requiring that federal agencies must insure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat.  98 per cent of the shiner habitat is privately owned, covering thousands of acres in four states: Oklahoma, Kansas, New Mexico and Texas.  The coalition represents thousands of farmers, ranchers and other landowners.
Coalition Fights Shiner Designation