Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency - Oral Argument - January 07, 2002

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

Media for Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

Audio Transcription for Opinion Announcement - April 23, 2002 in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

Audio Transcription for Oral Argument - January 07, 2002 in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

William H. Rehnquist:

submitted We'll hear argument next in Number oh oh eleven sixty-seven, Tahoe-Sierra Preservation Council versus The Tahoe Regional Planning Agenc- Mr. Berger.

[Inaudible]

Michael M. Berger:

Mr. Chief Justice, and may it please the Court.

There are three important things that should be kept in mind while we're addressing the issue this morning.

First, the Tahoe Regional Planning Agency totally prohibited a select group of individual landowners scattered around Lake Tahoe from making any use whatever of their land.

These prohibitions were never designed as the kind of planning time-out touted by TRPA and its amici.

Rather,

they were amendments...

Well, what about...

Sandra Day O'Connor:

a temporary order that says, gee, we're required by State law to develop a plan and it's going to take us a few months and, pending that, you can't develop? Now, i- does that invoke immediately some um per se taking rule?

Michael M. Berger:

It does if it's a flat prohibition of use, Your Honor,

and if there is...

Sandra Day O'Connor:

says, while we're developing this plan, which we think won't take long, you can't go ahead with your development?

Michael M. Berger:

Justice O'Connor, I do believe that if it is a total prohibition on use, and there is no use being made of the property at the time, that it's part of the public project to have this freeze on use, and it's the public that ought to be paying for that project, not the individual landowners who are frozen out.

Anthony M. Kennedy:

S- s- Suppose that and then we have to play with the facts a little bit, i- it's a hypothetical case, but that within a month from now the World Trade Center is ready to be constructed and New York says and the owner wants to rebuild highrises for office only, and the city says, wait a minute, this is so important to the whole city, we need a year to think about it, a year in addition to the usual zoning process.

Michael M. Berger:

I think if they t- if they forbid the entire use of the property and don't allow any applications for use to be made, don't allow...

the owner to do anything...

Michael M. Berger:

I- If there is some reasonable, economically viable, productive use that can be made of the property at the time, then I don't believe we have a per se taking.

Anthony M. Kennedy:

Well, I I guess my my my my question and I know you had a a more general introduction that we're interrupting, i- is is the use of a moratorium a st- a standard instrument of zoning policy, or is it very rare? I I couldn't find anything in the briefs on this.

Michael M. Berger:

It has, I believe, become much more rare these days.

Antonin Scalia:

Wh- i- wh- My impression is that that most of these mora- moratoriums, or moratoria, whatever they're called, would not would not be total.

Michael M. Berger:

That's correct, Justice...

Scalia, and I...

Michael M. Berger:

I think that's the more typical kind of moratorium, and the kind that most of the amici on the a- agency's side have been talking about.

William H. Rehnquist:

There was one Minnesota moratorium that was seemed somewhat like this that had been sustained by, I think the Minnesota appellate court.

Michael M. Berger:

There was one, Your Honor, and I would submit that that court erred.

And we believe that...

Michael M. Berger:

And we believe that that that simply is not an appropriate precedent for this Court...

to follow.

Stephen G. Breyer:

why is it I guess this is going to be your basic point.