The U.S. Ninth Circuit Court of Appeals has ruled against Lake Tahoe landowners who claimed that temporary building moratoriums and regional land use plans amounted to unconstitutional takings of their property. The Ninth Circuit ruled that the Tahoe Regional Planning Agency was not liable for a taking when it imposed a 32-month building moratorium during the early 1980s. The court also held TRPA was not liable for a taking when a court blocked implementation of a 1984 Regional Plan. Finally, the court ruled that takings lawsuits based on a 1987 Regional Plan were filed too late. The ruling was a major victory for TRPA, environmentalists and a wide variety of government entities that filed amicus briefs on TRPA's behalf, including the League of California Cities, the California State Association of Counties, and the states of Oregon, Washington, Arizona and Montana. A contrary ruling had the potential to make government agencies liable for imposing a building moratorium. Property owners, meanwhile, said they would ask a full panel of 9th Circuit judges to reconsider the case. The Tahoe-Sierra Preservation Council, a group representing about 450 property owners, has been in litigation with TRPA for more than a decade. The latest ruling, issued in mid-June, is the fourth time the Ninth Circuit has ruled in the litigation. Congress and the states of California and Nevada created TRPA in 1969 to ensure more orderly development of the Tahoe basin and to halt degradation of the lake's clear water. After years of dissatisfaction with TRPA's effectiveness, the parties signed a 1980 compact that called for TRPA to adopt a new regional land use plan. In 1981, the agency implemented a building moratorium while it began work on the plan. The moratorium remained in place until April 1984, when TRPA adopted a new regional plan. But the state of California, contending the plan allowed too much building, sued and a judge blocked TRPA from ever implementing the plan. After lengthy negotiations, the agency finally adopted a new regional plan in 1987. During three earlier rounds of litigation, the property owners lost all their claims at one point or another. All that remained in the latest round of litigation were property owners' claims that TRPA actions had violated the landowners' rights under the federal Civil Rights Act, 42 U.S.C. §1983. U.S. District Court Judge for Nevada Edward Reed ruled partly for the landowners. The unanimous three-judge panel of the Ninth Circuit, however, was not persuaded and sided against the property owners in every instance. The landowners first argued that simple adoption of the building moratoriums in the early 1980s amounted to an unconstitutional taking because landowners were denied "all economically beneficial or productive use of land" while the moratoriums were in effect. They cited the U.S. Supreme Court's landmark decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). But the court said property cannot be divided into separate pieces related to certain timeframes, in this case the 32 months that the moratoriums were in place. To rule otherwise, "would risk converting every temporary planning moratorium into a categorical taking," Judge Stephan Reinhardt wrote. He called such temporary moratoriums a "crucial planning mechanism." Furthermore, given the temporary nature of the moratoriums, landowners did not lose all value or use of their property, the court ruled. "[W]hile the temporary moratoriums surely had a negative impact on property values in the basin, we cannot conclude that the interim suspension of development wiped out the value of plaintiffs' properties," the court ruled. "In reaching this conclusion, we preserve the ability of local governments to do what they have done for many years — to engage in orderly, reasonable land-use planning through a considered and deliberative process. To do otherwise would turn the Takings Clause into a weapon to be used indiscriminately to penalize local communities for attempting to protect the public interest," Reinhardt wrote. As for the 1984 to 1987 period when the Regional Plan was blocked by an injunction, landowners argued that TRPA was liable because it should have foreseen such a lawsuit. The landowners argued that TRPA secretly wanted an injunction against all construction. But the Ninth Circuit flatly rejected this argument and noted that the plan was blocked not because it allowed too little building, but because it allowed too much. Finally, as for period since adoption of the 1987 regional plan, the Ninth Circuit held that the landowners' claims filed in 1991 were too late. Nevada's statute of limitations for such claims is two years, and California's is one year. The Case: Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, Nos. 99-15641, 99-15771, 00 C.D.O.S. 4765, 2000 Daily Journal D.A.R. 6356, filed June 15, 2000. The Lawyers: For TSCP: Lawrence Hoffman, (530) 583-8542. For TRPA: E. Clement Shute Jr., Shute, Mihaly & Weinberger, (415) 552-7272.