Fairness Requires Consideration of the Taking as a Whole

If fairness requires “that ‘the aggregate must be viewed in its en- tirety’”246 _{when examining the denominator of the takings fraction,}247

it should require a similar aggregation of restrictions constituting the numerator. Just as parcel as a whole focuses on the aggregate of the landowners benefit from ownership, taking as a whole similarly would focus on the aggregate of the landowner’s deprivation from regulation of the parcel.248

The stark fact is that the TSPC landowners likely lost their case before it was briefed and argued.

The government won Tahoe-Sierra because of the narrowness of the legal issue considered by the Court: whether TRPA’s 32-month moratorium on development amounted to a per se Lucas taking in a facial challenge. Entirely removed from the judicial equation were factors that could have depicted the petitioner landowners’ claims in a more sympathetic and legally defensible light. In their stead was a legal issue that effectively compelled the petitioners to propound a legal theory that had virtually no chance of prevailing before the Court, which is why the petitioners’ briefs on the merits repeatedly sought to rewrite the question presented before the Court.249

As noted earlier, the Court was adamant in considering the land- owners’ deprivation of all economically viable use of their land only in the context of the land’s use for the entire future after the morato- ria terminated.250 _{On the other hand, the Court simply has not taken}

245. Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1181 (Fed. Cir. 1994). 246. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 327 (2002) (quoting Andrus v. Allard, 444 U.S. 51, 66 (1979) (holding that prohibition on commercial transactions in eagle feathers did not bar other uses or impose physical inva- sion or restraint and was not a taking)).

247. See Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987). 248. The numerator of the takings fraction is the property owner’s loss rather than the regulator’s gain, since as Justice Stevens recently reiterated, that is the Constitutional standard. Brown v. Legal Found. of Wash., 123 S. Ct. 1406, 1419 (2003). “‘[T]he question is what has the owner lost, not what has the taker gained.’” Id. (quoting Boston Chamber of Commerce v. City of Boston, 217 U.S. 189, 195 (1910)).

249. Lazarus, supra note 96, at 17. 250. Seesupra Part II.B.2.

into account that many of the Tahoe-Sierra landowners were first precluded from all economically beneficial use of their land in 1981 and that they have remained unable to build the homes they had planned or to make other use of their property for twenty-two unin- terrupted years.251 Likewise, it was clear at the outset that prevent- ing the eutrophication of Lake Tahoe would require severe restric- tions in “sensitive environmental zones” along streams for an indefi- nite period.252

Justice Stevens acknowledged for the majority that “[t]he ‘rolling moratoria’ theory [i.e., the continuity of deprivation] was presented in the petition for certiorari, but our order granting review did not encompass that issue.”253 _{He also explained that “the case was tried in}

the district court and reviewed in the Court of Appeals on the theory that each of the two moratoria was a separate taking, one for a 2 year period and the other for an 8 month period.”254

It is instructive to juxtapose Justice Stevens’s response to the fact that the grant of certiorari did not encompass the last eighteen or nineteen years of the twenty-two year deprivation on use, with his action, one year later, in the Court’s most recent property rights case,

Brown v. Legal Foundation of Washington.255 Brown, as previously noted, involved a rule imposed by the Supreme Court of Washington requiring that client trust funds that were not of sufficient size or duration to generate net interest if placed in separate accounts for the individual clients be deposited in an interest on lawyers trust ac- counts (IOLTA) account for the benefit of legal services programs designated by the state court.256 _{The issues decided below and briefed}

and argued in the U.S. Supreme Court were whether the mandatory deposit of client funds into the IOLTA account or the disbursement of the interest on those funds to the legal services programs constituted compensable takings.

Nevertheless, Justice Stevens, writing for the majority, declared:

While it confirms the state’s authority to confiscate private prop- erty, the text of the Fifth Amendment imposes two conditions on

251. See Michael M. Berger, The Shame of Planners, LAND USE L. & ZONING DIG., June 2002, at 6, 7 (noting that the freeze on development contained in TRPA’s 1981, 1984, and 1987 plans “continues to prohibit the use of virtually all of the lots that were involved in the Tahoe-Sierra litigation”).

252. SeeTahoe-Sierra, 535 U.S. at 308-09; infra text accompanying notes 376-78. 253. Tahoe-Sierra, 535 U.S. at 334 (emphasis added) (citing the Court’s grant of certio- rari, 533 U.S. 948 (2001)).

254. Id. (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency (TSPC IV), 216 F.3d 764, 769 (9th Cir. 2000), aff’d, 535 U.S. 302 (2002)). Should the Court have considered the totality of what is currently a twenty-two year moratorium? Of course, the Court could have remanded with directions that the court of appeals consider that issue. 255. 123 S. Ct. 1406 (2003).

the exercise of such authority: the taking must be for a “public use” and “just compensation” must be paid to the owner. In this case, the first condition is unquestionably satisfied. If the State had im- posed a special tax, or perhaps a system of user fees, to generate the funds to finance the legal services supported by the Founda- tion, there would be no question as to the legitimacy of the use of the public’s money.257

Justice Scalia noted in his dissent that these “ruminations . . . come as a surprise, inasmuch as they address a nonjurisdictional constitutional issue raised by neither the parties nor their amici.”258 TSPC’s attorney subsequently made the same point, albeit more col- orfully:

“Ponder this: the same Justice Stevens who couldn’t think of a way to deal with the rolling moratoria issue in Tahoe-Sierra because they hadn’t granted cert on that issue had no trouble dealing with the public use issue in Brown when nobody raised the issue at all. Curiouser and curiouser.”259

From the perspective of a traditional and prudential court, the discordance should have been resolved by forbearance in Brown from raising nonjurisdictional issues not briefed and argued. The public use issue also contributed nothing to shape the outcome. On the other hand, were the Court in Tahoe-Sierra to have confronted the fact that landowners of modest means have been deprived of all use of their property for an aggregate period of twenty-two years and running, its view of the nature of interim moratoria, its focus on fair- ness, and the “seven theories” it enunciated should have been pro- foundly affected.260