Temporary moratoriums on development figure prominently in efforts to get a handle on rapid and insistent demand for growth. But is the planners’ tool a “taking” under the Fifth Amendment and are property owners entitled to compensation because of it?

Later this session, the U.S. Supreme Court will rule on this issue, in a case out of Nevada and California involving a three-year moratorium on development of property near Lake Tahoe.
The justices heard arguments, Jan. 7, in the case of Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency. It is the first time the court has been asked to decide whether a temporary moratorium on development constitutes a taking, per se.

It was also the first time the U. S. Solicitor General argued a takings case before the Supreme Court. The federal government stepped in on the side of the Tahoe Regional Planning Agency, which is a multi-jurisdictional, bi-state agency formed in 1969 to protect Lake Tahoe. NACo, as well as other local and state government associations, and the American Planning Association also filed amicus briefs in support of the planning agency.

In its brief, NACo pointed out the far-reaching consequences of the case if the petitioners win:
“Due to petitioners’ radical argument, the stakes in this case extend far beyond Lake Tahoe …. Petitioners’ per se rule would require compensation not only for temporary development moratoria, but also government — compelled temporary facilities closures and many other regulatory actions that temporarily prohibit the use of land.

“ … these temporary restrictions would require compensation no matter how narrow in scope, no matter how slight the economic impact on the landowner, and no matter how weighty the government justification.”
The moratorium at issue had been tied to the study and drafting of development standards to prevent the pollution of Lake Tahoe, as prescribed in a regional planning compact. The Tahoe Sierra Preservation Council, representing developers and other property owners in the Lake Tahoe area, took the planning agency to court over the takings issue and won. But lost ground when the U.S. 9th Circuit Court of Appeals overturned the lower court’s ruling. The case before the Supreme Court was an appeal of that decision.

The 9th Circuit noted in its ruling that “temporary development moratoria prevent developers and landowners racing to carry out development that is destructive of a community’s interest before a new plan goes into effect. Such a race-to-development would permit property owners to evade the land use plan and undermine its goals.”

Some Supreme Court watchers who witnessed the oral arguments predict a close, but nevertheless favorable decision for local governments: i.e. a ruling against the plaintiffs in the case. Others fear any ruling may play mischief with the moratorium process. A ruling is expected sometime before June.

Park use permit regulations

In another ruling of interest to local governments, the Supreme Court, on Jan. 15, said Chicago’s park-use permitting guidelines do not impede free speech since they apply equally to all groups regardless of viewpoint.

The city’s 13-point guidelines were challenged by the Windy City Hemp Development Board, which advocates legalizing marijuana. The group had often applied to use the parks for demonstrations, and had a mixed experience of approvals and denials. They challenged the guidelines, claiming they prevented the free exercise of speech under the First Amendment. The court’s unanimous decision in the case, Thomas v. Chicago Park District, supports the authority of local governments to regulate political demonstrations.

Flow Control

In a victory for local governments — in this case, Oneida and Herkimer counties in New York — the court decided not to hear an appeal of a lower court ruling on flow control, letting stand a decision that allowed the counties to control the flow of solid waste within their borders.

In July, the U.S. 2nd Circuit Court of Appeals ruled that Oneida and Herkimer counties could require all solid waste produced in the counties be sent to a specific, publicly-owned waste disposal facility. The counties’ flow control measure had been challenged by a group of waste haulers and disposal companies as violating the interstate commerce clause of the Constitution.

The ruling, even though only applicable to states in the second circuit (Connecticut, New York and Vermont) is the first victory in a long time for local flow control ordinances that have been all but shut down by the Supreme Court’s 1994 ruling in Carbone v. Clarkstown.

Coming up: Tow truck regulation

In April, the Supreme Court will hear arguments in City of Columbus v. Ours Garage and Wrecker Service, a case involving the right of local governments to regulate tow truck companies and prevent them from charging exorbitant rates or whisking away illegally parked vehicles without authorizations.