Tags: Olson | Backs | Land | Regulators

Olson Backs Land Regulators

Monday, 07 January 2002 12:00 AM

The position was an unusual one for Olson, who as a private lawyer fought against government over-regulation, equating it with an unconstitutional "taking" of property.

The Constitution's "takings clause" bans government confiscation of property without compensation.

Olson's position led to some dramatic moments in the Supreme Court Monday, as he jousted with the most conservative members of the court over how the case should be resolved.

At issue in the Lake Tahoe case is whether a temporary moratorium on development constitutes a "taking" that must be paid for by government.

The case was brought by about 700 families who owned residential, single-family lots on Lake Tahoe, parts of which are in California and Nevada.

Controlling land use in the area is a California-Nevada body called the Tahoe Regional Planning Agency, or TRPA.

Although the lots owned by the 700 families are in areas already partially developed – with paving, utilities and some houses – TRPA has imposed a ban on further development.

Once-pristine Lake Tahoe had been considerably affected by water runoff from development in the early 1980s. Since that time, TRPA has issued a series of three-year moratoriums on further development that the families say have kept them from using their property for years.

The families have been to court several times. Most recently, a federal judge ordered partial compensation for the 1981-84 moratorium because the other moratorium years were partly the fault of court injunctions or other court action.

A federal appeals court disagreed, said the judge misapplied Supreme Court precedent, and threw out even that partial compensation.

The families, supported by the Bush administration, then asked the Supreme Court for review.

If the Supreme Court agrees with the families and establishes a rule interpreting moratoriums and similar regulations as government takings, Olson told the justices Monday, it "would make every freeze in the status quo ... equivalent to a condemnation" of property.

"They couldn't use their property at all while a government agency was trying to solve this problem" of pollution at Lake Tahoe, Olson said.

Olson's arguments drew an immediate attack from Chief Justice William Rehnquist.

"I don't see it that way," Rehnquist said from the bench when Olson said the families' position could lead to any government zoning process being considered an unconstitutional taking.

Delaying property use while considering a zoning application "is an affirmative process as opposed to a moratorium that says, 'No, you can't build,' " Rehnquist insisted.

"The purpose of the moratorium here was to develop a plan to keep Lake Tahoe clean," Olson responded, to "preserve the value of property on the lake."

"I don't think this is a traditional moratorium at all," Rehnquist's fellow conservative, Justice Antonin Scalia, said from the bench. "... It's very rare that you propose a complete denial of use, because that's a condemnation."

If the community wanted to keep Lake Tahoe clean, then the entire government should have borne the cost, not just these 700 families, Scalia insisted.

"This was government acting in the way we want it to act," Olson responded.

Earlier in the argument, Santa Monica, Calif., attorney Michael Berger spoke for the families.

The "rolling moratoriums" placed on the use of property at Lake Tahoe constituted "total elimination" of an owner's use of that property, Berger told the justices.

Scalia asked Berger whether the delay caused by the zoning application process also constituted an illegal taking of property.

Berger replied that there "was a fundamental difference between a landowner working through the system" and government policy designed to deny the use of property.

Justice Sandra Day O'Connor disagreed. "Under your theory, compensation is due" from the government whenever there is a delay in property use. "That's what it sounds like," she said.

Speaking for TRPA, Washington attorney John Roberts told the justices that most of the families have sold their property over the years. Of the remainder, about two-thirds are now free to use it, he said.

In the end, the justices should look at "what was the impact on property" of the repeated moratoriums. "A temporary ban on development doesn't make property valueless."

The justices should rule on the case in the next several months.

Copyright 2002 by United Press International.

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The position was an unusual one for Olson, who as a private lawyer fought against government over-regulation, equating it with an unconstitutional taking of property. The Constitution's takings clause bans government confiscation of property without compensation. ...
Monday, 07 January 2002 12:00 AM
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