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80 Denv. U. L. Rev. 199 (2002-2003)
Twenty Years in Tahoe-Sierra - Why It's Right and Why It's Not a Satisfactory Solution

handle is hein.journals/denlr80 and id is 222 raw text is: TWENTY YEARS IN TAHOE-SiERRA - WHY IT'S RIGHT AND WHY IT'S NOT A SATISFACTORY SOLUTION INTRODUCTION' Regulatory takings have troubled courts and stakeholders for years. As environmental awareness grows, so does the complexity of regulation involved in developing large tracts of land sensitive to environmental damage. Take future home sites near Lake Tahoe. Literally. In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Plan- ning Agency,2 the United States Supreme Court tried to settle the debate raised by its recent pro-property rights decisions favoring categorical, bright-line rules over ad hoc, factual inquiries.3 The Court's decision, read in conjunction with the Ninth Circuit decision it affirmed, neatly fits recent categorical rules into the ad hoc framework by viewing them as exceptions to the ad hoc approach, which requires a balancing of gov- ernment and private interests.4 The rationale behind the Court's recent decisions employing categorical rules was that one factor weighed so dominantly that further analysis under an ad hoc framework became un- necessary.5 This approach is in the best interests of all stakeholders be- cause it preserves the feasibility of the planning process, while still rec- ognizing that some temporary regulatory actions result in takings. The categorical approach averred by landowners would make planning too expensive and encourage uncontrolled development at the expense of priceless natural resources. 1. A few definitions may help the reader understand this discussion. A regulatory taking is similar to physical taking of property by the government when it exercises eminent domain in situations such as purchasing land to construct a highway. Steven J. Eagle, Just Compensation for Permanent Takings of Temporal Interests, 10 FED. CIR. B.J. 485, 489-90 (2001). A regulatory taking arises when governmental regulation so limits the owner's use that the property is effectively taken. See id. The government must compensate the owner for a taking. See U.S. CONsT. amend. V. A per se taking is a physical occupation of the property, while a categorical taking occurs when a property owner is deprived of all economically beneficial use of the property. Wendie L. Kellington, New Takes on Old Takes: A Takings Law Update, SG021 ALI-ABA 511,513 (2001). A facial taking is a regulation so intrusive that its mere enactment creates a taking. Id. at 514. An as applied taking arises when a regulation as applied creates a taking. Id. An as applied taking requires a factual examination. Id. at 514-15. Afacial taking does not-the court analyzes the regulation on its face. Id. at 514. 2. 122 S. Ct. 1465 (2002). 3. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (holding that a categorical taking will be found where a property owner is deprived of all economically beneficial use of the property). 4. Tahoe-Sierra, 122 S. Ct. at 1483; Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 772-73 (9th Cir. 2000); see Lucas, 505 U.S. at 1017, 1019. 5. Tahoe-Sierra, 122 S. Ct. at 1483; Tahoe-Sierra, 216 F.3d at 772-73; see Lucas, 505 U.S. at 1017, 1019.

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