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 moratoria
2. Duration of the moratorium
3. Public interest intended to be served
4. Burden on the private property owner
5. Extent of other economic uses of the
property during the moratorium
6. 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….