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Abstract

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this decision focused solely on Tahoe-Sierra Preservation Council's (the landowners) facial challenge to two consecutive moratoria lasting for a period of thirty-two months, enacted by the Tahoe Regional Planning Agency (TRPA) during a planning process mandated by the States of Nevada and California. Recognizing Oliver Wendell Holmes's now famous declaration that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking,” the Court in this case rejected a per se takings approach *545 for regulations that temporarily reduce the value of property to zero. Instead, the Court reaffirmed the precedent of having “‘generally eschewed’ any set formula for determining how far is too far,” and chose instead to engage in an “‘essentially ad hoc, factual inquir [y].”’ Accordingly, the Court found that the circumstances in this case are best analyzed by using the balancing test within the Penn Centralframework. Tahoe-Sierra presented the Court with the opportunity to clarify the increasingly muddy waters of federal takings law, especially that of temporary regulatory takings. Instead, the unique set of facts pertinent to this case and the Court's reluctance to go far beyond its now narrowed decision in First English Evangelical Lutheran Church v. County of Los Angeles has resulted in members of the planning and development communities professing wildly different interpretations, and the flurry of commentary published after the decision had both sides claiming partial victory. This Note focuses on what, if any, guidance the Court's decision gives to governments and planning professionals in fashioning moratoria to gain time to “put [their] house in order ... [and] adopt necessary controls or build needed infrastructure.”

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