Monday, Jan. 7, 2002 Court Looks at Landowners' Rights By GINA HOLLAND Associated Press Writer
WASHINGTON (AP) - The Supreme Court on Monday plunged into the thorny issue of how much power the government has to dictate what people do with their land. The principal question for the justices is whether the government must compensate landowners whom it has temporarily banned from using their property as they see fit. Justices must confront the vexing issue of whether a constitutional ban on "taking" someone's land without compensation applies to temporary government land-use bans. The case involves hundreds of people who bought property on Lake Tahoe and have waited about two decades for permission to build there, and the eventual ruling could have far-reaching implications for local and state leaders who use zoning ordinances to slow growth and protect the environment. "Those people shouldn't be left flapping in the breeze with no compensation," attorney Michael M. Berger told justices. He gave this scenario: "It's as if I took away your car for a year and parked it in a garage. You still would have been without the use of that car for a year." Court members seemed sympathetic to landowners, including those who tired of waiting and sold their property to the government. At the same time, they noted the government's interest in limiting development. "The justification is excellent - saving Lake Tahoe," said Justice Stephen Breyer. The court will decide the narrow issue of whether an initial moratorium, from 1981-84, amounted to a taking. The landowners had sought $27 million in damages. The case has made for strange bedfellows among conservatives and the Bush administration. The Tahoe Regional Planning Agency imposed a construction moratorium because of concerns about burgeoning development that was changing the color of Lake Tahoe, which is on the California-Nevada border. About 700 families filed suit, and their case has gone before the 9th U.S. Circuit Court of Appeals four times. The Supreme Court agreed to hear the families' appeal last year. John G. Roberts Jr., representing the planning agency, said the moratorium was "a time-out, for a limited period." The Supreme Court, under conservative Chief Justice William H. Rehnquist, has repeatedly sided with property owners in land fights. In this case, the Bush administration is on the other side. Solicitor General Theodore Olson sparred with Rehnquist and Justice Antonin Scalia over the landowners' predicament. Olson said agencies should be allowed time to develop sensible plans, as in this case, without having to pay landowners. "I don't think this is a traditional moratorium. I think it's extraordinary," Scalia told Olson. "They couldn't use their property at all." "Not every delay ... constitutes a taking," Olson said. The Supreme Court has dealt with a similar case before, deciding in 1987 that governments must pay for temporary takings unless they are normal and relate to the routine permitting process. Michael Ramsey, a law professor at the University of San Diego, said if the landowners win, "It would open the door to a tremendous number of cases." Justice Anthony M. Kennedy asked lawyers Monday if the city of New York could be sued if it temporarily banned any rebuilding at the World Trade Center site while the site's future was pondered. The case is Tahoe-Sierra Preservation v. Tahoe Regional Planning Agency, 00-1167. ---
