[ Stevens ]
[ Rehnquist ]
[ Thomas ]
TAHOE-SIERRA PRESERVATION COUNCIL, INC.,
et al., PETITIONERS v. TAHOE REGIONAL
PLANNING AGENCY et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2002]
Justice Thomas, with whom Justice Scalia joins, dissenting.
I join the Chief Justices dissent. I write separately to address the majoritys conclusion that the temporary moratorium at issue here was not a taking because it was not a taking of the parcel as a whole.
A taking is exactly what occurred in this case. No one seriously doubts that the land use regulations at issue rendered petitioners land unsusceptible of any economically beneficial use. This was true at the inception of the moratorium, 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 logically . . . the property will recover value as soon as the prohibition is lifted. Ante, at 2728. But the logical assurance that a temporary restriction . . . merely causes a diminution in value, ante, at 27, is cold comfort to the property owners in this case or any other. After all, [i]n the long run we are all dead. John Maynard 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.
*. * The majoritys decision to embrace the parcel as a whole doctrine as settled is puzzling. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001) (noting that the Court has at times expressed discomfort with the logic of [the parcel as a whole] rule); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016, n. 7 (1992) (recognizing that uncertainty regarding the composition of the denominator in [the Courts] deprivation fraction has produced inconsistent pronouncements by the Court, and that the relevant calculus is a difficult question).