Institute for Justice Expresses Disappointment in Supreme Court Decision Against Property Owners in Takings Case

John Kramer
John Kramer · April 23, 2002

Washington, D.C.-The Institute for Justice today expressed disappointment in a narrow ruling from the U.S. Supreme Court that sided with a planning authority over individual landowners in Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency.

“This decision will make it more difficult for individuals to hold governments accountable when they strategically and unjustifiably use procedural maneuvers to prevent people from building homes on property that is rightfully theirs,” said Chip Mellor, president of the Institute for Justice, a Washington, D.C.-based public interest law firm that filed an amicus curiae brief in the case. The brief was co-authored by Richard Epstein, a professor at the University of Chicago Law School and one of the nation’s leading authorities on property law.

“The Court focused on the narrow moratorium on development without looking at the pattern and practice of abuse of the process carried out by the planning agency,” noted Epstein. “The Court missed a golden opportunity to put some much-needed coherence into its takings jurisprudence and to jettison the Penn Central decision, which has only caused confusion and incoherence in this area.”

The majority opinion noted (in footnote 28) that the Institute for Justice in its brief called on the Court to overturn its 1978 Penn Central decision setting forth the current approach to so-called regulatory takings cases.

The majority opinion also held that the property owner in this case only raised a “facial” challenge to the regulation, asking a court to adopt a per se rule that the development moratorium amounted to a taking of the property. The good news for the property owners is that they are free to pursue an “as applied” challenge to the regulations, arguing that the balancing test adopted by the Court weighs in favor of their rights. The case also raised complex environmental issues, which were fully explored by the Institute’s brief, but because the Court only considered a facial challenge to the regulation, those issues were ignored by the Court.

The case concerned the plight of owners of undeveloped land located in the Lake Tahoe Basin. For nearly 20 years, they have fought an incessant battle with the Tahoe Regional Planning Agency, which through a series of strategically timed development moratoria has refused to allow the construction of any new single-family homes on ordinary building plots located in the basin. The case centered on whether temporary bans on land development constitute a taking of property requiring compensation under the Takings Clause of the Constitution.

The Institute with Professor Epstein has filed briefs in every major property rights case before the Supreme Court in the past decade.