ALI-ABA Annual Land Use Institute

Defensible Moratoria

Dwight H. Merriam, FAICP,CRE

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency

…The Nutshell Version…

Is a 32-month moratorium a facial (per se) taking? Moratorium imposed on residential development in

most sensitive areas while the planning agency developed a plan to save the lake from further damage by stormwater runoff

1980 Compact Regional plan adopted 1984 – 32 months later 750 property owners, four time periods of claims,

several district court decisions, three Ninth Circuit decisions

22 years of no development “10 or 15 minutes” is claimed to be a compensable

taking

Essentially a Relevant Parcel Case

The numerator-denominator problem Justice Stevens’ dissent in First English Physical, functional, temporal

…And the Decision Was a Narrow One

As Justice Stevens put it:

[i]n rejecting petitioner’s per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.

The Court Expressed Support for Moratoria

The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the process altogether.

…

To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth.

Not a categorical take Planning is essential But what they didn’t decide….

What about as-applied takings? What moratoria are defensible? Does whole parcel rule rule? Whither goes the “fairness and justice”

debate?

Defensible Moratoria

Six Major Factors

1. Authority to enact moratoria2. Duration of the moratorium3. Public interest intended to be served4. Burden on the private property owner5. Extent of other economic uses of the

property during the moratorium6. Availability of local administrative relief

Authority to Enact Moratoria

Better to have it than not.

Duration of the Moratorium

Shorter is better.

Public Interest Intended to be Served

Life safety and other heavy weight objectives are best.

Burden on the Private Property Owner

Make it is small as you can.

Extent of Other Economic Uses of the Property During the Moratorium

Preserve as much as you can.

Availability of Local Administrative Relief

Try local procedures.

So, How Do You Do It?

Within the authority of your enabling legislation, express or implied, you may enact a defensible moratorium for a critical public purpose if you narrowly tailor the moratorium and limit its duration to the shortest period possible, while minimizing the burden on the private property owner in part by maintaining as much use of the property as possible, ultimately relying on local adjudicatory relief for those few special cases….