Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 55 (2002)

Page:   Index   Previous  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55

356 TAHOE-SIERRA PRESERVATION COUNCIL, INC. v.

TAHOE REGIONAL PLANNING AGENCY Thomas, J., dissenting

torium, and it remains true today. These individuals and families were deprived of the opportunity to build single-family homes as permanent, retirement, or vacation residences on land upon which such construction was authorized when purchased. The Court assures them that "a temporary prohibition on economic use" cannot be a taking because "[l]ogically . . . the property will recover value as soon as the prohibition is lifted." Ante, at 332. But the "logical" assurance that a "temporary restriction . . . merely causes a diminution in value," ibid., is cold comfort to the property owners in this case or any other. After all, "[i]n the long run we are all dead." J. Keynes, Monetary Reform 88 (1924).

I would hold that regulations prohibiting all productive uses of property are subject to Lucas' per se rule, regardless of whether the property so burdened retains theoretical useful life and value if, and when, the "temporary" moratorium is lifted. To my mind, such potential future value bears on the amount of compensation due and has nothing to do with the question whether there was a taking in the first place. It is regrettable that the Court has charted a markedly different path today.

Page:   Index   Previous  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55

Last modified: October 4, 2007