TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al. v. TAHOE REGIONAL PLANNING AGENCY et al.

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302 OCTOBER TERM, 2001
Syllabus
TAHOE-SIERRA PRESERVATION COUNCIL, INC.,
et al. v. TAHOE REGIONAL PLANNING
AGENCY et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 00–1167. Argued January 7, 2002—Decided April 23, 2002
Respondent Tahoe Regional Planning Agency (TRPA) imposed two mora-
toria, totaling 32 months, on development in the Lake Tahoe Basin while
formulating a comprehensive land-use plan for the area. Petitioners,
real estate owners affected by the moratoria and an association rep-
resenting such owners, filed parallel suits, later consolidated, claiming
that TRPA’s actions constituted a taking of their property without
just compensation. The District Court found that TRPA had not ef-
fected a “partial taking” under the analysis set out in Penn Central
Transp. Co. v. New York City, 438 U. S. 104; however, it concluded that
the moratoria did constitute a taking under the categorical rule an-
nounced in Lucas v. South Carolina Coastal Council, 505 U. S. 1003,
because TRPA temporarily deprived petitioners of all economically
viable use of their land. On appeal, TRPA successfully challenged the
District Court’s takings determination. Finding that the only ques-
tion in this facial challenge was whether Lucas’ rule applied, the Ninth
Circuit held that because the regulations had only a temporary impact
on petitioners’ fee interest, no categorical taking had occurred; that
Lucas applied to the relatively rare case in which a regulation perma-
nently denies all productive use of an entire parcel, whereas the mora-
toria involved only a temporal slice of the fee interest; and that First
English Evangelical Lutheran Church of Glendale v. County of Los
Angeles, 482 U. S. 304, concerned the question whether compensation
is an appropriate remedy for a temporary taking, not whether or
when such a taking has occurred. The court also concluded that Penn
Central’s ad hoc balancing approach was the proper framework for
analyzing whether a taking had occurred, but that petitioners had not
challenged the District Court’s conclusion that they could not make out
a claim under Penn Central’s factors.
Held: The moratoria ordered by TRPA are not per se takings of property
requiring compensation under the Takings Clause. Pp. 321–343.
(a) Although this Court’s physical takings jurisprudence, for the most
part, involves the straightforward application of per se rules, its regu-
latory takings jurisprudence is characterized by “essentially ad hoc,

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factual inquiries,” Penn Central, 438 U. S., at 124, designed to allow
“careful examination and weighing of all the relevant circumstances,”
Palazzolo v. Rhode Island, 533 U. S. 606, 636 (O’Connor, J., concurring).
The longstanding distinction between physical and regulatory takings
makes it inappropriate to treat precedent from one as controlling on
the other. Petitioners rely on First English and Lucas—both regula-
tory takings cases—to argue for a categorical rule that whenever the
government imposes a deprivation of all economically viable use of
property, no matter how brief, it effects a taking. In First English,
482 U. S., at 315, 318, 321, the Court addressed the separate remedial
question of how compensation is measured once a regulatory taking
is established, but not the different and prior question whether the
temporary regulation was in fact a taking. To the extent that the
Court referenced that antecedent question, it recognized that a regu-
lation temporarily denying an owner all use of her property might not
constitute a taking if the denial was part of the State’s authority to
enact safety regulations, or if it were one of the normal delays in ob-
taining building permits, changes in zoning ordinances, variances, and
the like. Thus, First English did not approve, and implicitly rejected,
petitioners’ categorical approach. Nor is Lucas dispositive of the ques-
tion presented. Its categorical rule—requiring compensation when a
regulation permanently deprives an owner of “all economically bene-
ficial uses” of his land, 505 U. S., at 1019—does not answer the ques-
tion whether a regulation prohibiting any economic use of land for
32 months must be compensated. Petitioners attempt to bring this
case under the rule in Lucas by focusing exclusively on the property
during the moratoria is unavailing. This Court has consistently re-
jected such an approach to the “denominator” question. See, e. g., Key-
stone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 497. To
sever a 32-month segment from the remainder of each fee simple estate
and then ask whether that segment has been taken in its entirety would
ignore Penn Central’s admonition to focus on “the parcel as a whole,”
438 U. S., at 130–131. Both dimensions of a real property interest—the
metes and bounds describing its geographic dimensions and the term
of years describing its temporal aspect—must be considered when view-
ing the interest in its entirety. A permanent deprivation of all use is
a taking of the parcel as a whole, but a temporary restriction caus-
ing a diminution in value is not, for the property will recover value
when the prohibition is lifted. Lucas was carved out for the “extraor-
dinary case” in which a regulation permanently deprives property
of all use; the default rule remains that a fact specific inquiry is required
in the regulatory taking context. Nevertheless, the Court will consider
petitioners’ argument that the interest in protecting property owners

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304 TAHOE-SIERRA PRESERVATION COUNCIL, INC. v.
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from bearing public burdens “which, in all fairness and justice, should
be borne by the public as a whole,” Armstrong v. United States, 364
U. S. 40, 49, justifies creating a new categorical rule. Pp. 321–332.
(b) “Fairness and justice” will not be better served by a categorical
rule that any deprivation of all economic use, no matter how brief, con-
stitutes a compensable taking. That rule would apply to numerous
normal delays in obtaining, e. g., building permits, and would require
changes in practices that have long been considered permissible exer-
cises of the police power. Such an important change in the law should
be the product of legislative rulemaking, not adjudication. More im-
portantly, for the reasons set out in Justice O’Connor’s concurring
opinion in Palazzolo, 533 U. S., at 636, the better approach to a tempo-
rary regulatory taking claim requires careful examination and weigh-
ing of all the relevant circumstances—only one of which is the length
of the delay. A narrower rule excluding normal delays in processing
permits, or covering only delays of more than a year, would have a less
severe impact on prevailing practices, but would still impose serious
constraints on the planning process. Moratoria are an essential tool
of successful development. The interest in informed decisionmaking
counsels against adopting a per se rule that would treat such interim
measures as takings regardless of the planners’ good faith, the land-
owners’ reasonable expectations, or the moratorium’s actual impact
on property values. The financial constraints of compensating prop-
erty owners during a moratorium may force officials to rush through
the planning process or abandon the practice altogether. And the inter-
est in protecting the decisional process is even stronger when an agency
is developing a regional plan than when it is considering a permit for
a single parcel. Here, TRPA obtained the benefit of comments and
criticisms from interested parties during its deliberations, but a cate-
gorical rule tied to the deliberations’ length would likely create added
pressure on decisionmakers to quickly resolve land-use questions, dis-
advantaging landowners and interest groups less organized or familiar
with the planning process. Moreover, with a temporary development
ban, there is less risk that individual landowners will be singled out to
bear a special burden that should be shared by the public as a whole.
It may be true that a moratorium lasting more than one year should be
viewed with special skepticism, but the District Court found that the
instant delay was not unreasonable. The restriction’s duration is one
factor for a court to consider in appraising regulatory takings claims,
but with respect to that factor, the temptation to adopt per se rules in
either direction must be resisted. Pp. 333–342.
216 F. 3d 764, affirmed.

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Stevens, J., delivered the opinion of the Court, in which O’Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist,
C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined,
post, p. 343. Thomas, J., filed a dissenting opinion, in which Scalia, J.,
joined, post, p. 355.
Michael M. Berger argued the cause for petitioners.
With him on the briefs were Gideon Kanner and Lawrence
L. Hoffman.
John G. Roberts, Jr., argued the cause for respondents.
With him on the brief were Frankie Sue Del Papa, Attorney
General of Nevada, and William J. Frey, Deputy Attorney
General, Bill Lockyer, Attorney General of California, Rich-
ard M. Frank, Chief Assistant Attorney General, Matthew
Rodriquez, Senior Assistant Attorney General, and Daniel
L. Siegel, Supervising Deputy Attorney General, E. Clement
Shute, Jr., Fran M. Layton, Ellison Folk, John L. Marshall,
and Richard J. Lazarus.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging affirmance. With him
on the brief were Acting Assistant Attorney General Cru-
den, Deputy Solicitor General Kneedler, and Malcolm L.
Stewart.*
*Briefs of amici curiae urging reversal were filed for the American
Association of Small Property Owners et al. by Martin S. Kaufman; for
the American Farm Bureau Federation et al. by John J. Rademacher and
Nancy McDonough; for the Institute for Justice by William H. Mellor,
Clint Bolick, Scott Bullock, and Richard A. Epstein; for the National
Association of Home Builders by Christopher G. Senior and David Crump;
for the Pacific Legal Foundation et al. by R. S. Radford, June Babiracki
Barlow, and Sonia M. Younglove; and for the Washington Legal Founda-
tion by Daniel J. Popeo, Richard A. Samp, and Douglas B. Levene.
Briefs of amici curiae urging affirmance were filed for the State of
Vermont et al. by William H. Sorrell, Attorney General of Vermont, and
Bridget Asay, Assistant Attorney General, and by the Attorneys General
for their respective jurisdictions as follows: Bruce M. Botelho of Alaska,
Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, Robert
A. Butterworth of Florida, Earl I. Anzai of Hawaii, Thomas J. Miller of
Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland,

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306 TAHOE-SIERRA PRESERVATION COUNCIL, INC. v.
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Opinion of the Court
Justice Stevens delivered the opinion of the Court.
The question presented is whether a moratorium on de-
velopment imposed during the process of devising a com-
prehensive land-use plan constitutes a per se taking of prop-
erty requiring compensation under the Takings Clause of
the United States Constitution.1 This case actually involves
two moratoria ordered by respondent Tahoe Regional Plan-
ning Agency (TRPA) to maintain the status quo while study-
ing the impact of development on Lake Tahoe and design-
ing a strategy for environmentally sound growth. The first,
Ordinance 81–5, was effective from August 24, 1981, until
August 26, 1983, whereas the second more restrictive Reso-
lution 83–21 was in effect from August 27, 1983, until April
25, 1984. As a result of these two directives, virtually all
development on a substantial portion of the property sub-
ject to TRPA’s jurisdiction was prohibited for a period of
32 months. Although the question we decide relates only
to that 32-month period, a brief description of the events
leading up to the moratoria and a comment on the two per-
Thomas F. Reilly of Massachusetts, Mike McGrath of Montana, John J.
Farmer, Jr., of New Jersey, Eliot Spitzer of New York, Roy Cooper of
North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of
Oregon, Anabelle Rodriguez of Puerto Rico, Sheldon Whitehouse of
Rhode Island, Mark Barnett of South Dakota, Paul G. Summers of Ten-
nessee, John Cornyn of Texas, and Christine O. Gregoire of Washington;
for the American Planning Association et al. by Robert H. Freilich; for
the Council of State Governments et al. by Richard Ruda and Timothy J.
Dowling; for the National Audubon Society et al. by John D. Echeverria;
and for Thomas Dunne et al. by Karl M. Manheim.
Nancie G. Marzulla filed a brief for Defenders of Property Rights as
amicus curiae.
1 Often referred to as the “Just Compensation Clause,” the final Clause
of the Fifth Amendment provides: “. . . nor shall private property be taken
for public use without just compensation.” It applies to the States as
well as the Federal Government. Chicago, B. & Q. R. Co. v. Chicago, 166
U. S. 226, 239, 241 (1897); Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
449 U. S. 155, 160 (1980).

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manent plans that TRPA adopted thereafter will clarify
the narrow scope of our holding.
I
The relevant facts are undisputed. The Court of Appeals,
while reversing the District Court on a question of law,
accepted all of its findings of fact, and no party challenges
those findings. All agree that Lake Tahoe is “uniquely
beautiful,” 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that Presi-
dent Clinton was right to call it a “ ‘national treasure that
must be protected and preserved,’ ” ibid., and that Mark
Twain aptly described the clarity of its waters as “ ‘not
merely transparent, but dazzlingly, brilliantly so,’ ” ibid.
(emphasis added) (quoting M. Twain, Roughing It 174–175
(1872)).
Lake Tahoe’s exceptional clarity is attributed to the ab-
sence of algae that obscures the waters of most other lakes.
Historically, the lack of nitrogen and phosphorous, which
nourish the growth of algae, has ensured the transparency
of its waters.2 Unfortunately, the lake’s pristine state has
deteriorated rapidly over the past 40 years; increased land
development in the Lake Tahoe Basin (Basin) has threat-
ened the “ ‘noble sheet of blue water’ ” beloved by Twain
and countless others. 34 F. Supp. 2d, at 1230. As the Dis-
trict Court found, “[d]ramatic decreases in clarity first began
to be noted in the late 1950’s/early 1960’s, shortly after devel-
opment at the lake began in earnest.” Id., at 1231. The
lake’s unsurpassed beauty, it seems, is the wellspring of its
undoing.
2 According to a Senate Report: “Only two other sizable lakes in the
world are of comparable quality—Crater Lake in Oregon, which is pro-
tected as part of the Crater Lake National Park, and Lake Baikal in the
[former] Soviet Union. Only Lake Tahoe, however, is so readily accessible
from large metropolitan centers and is so adaptable to urban develop-
ment.” S. Rep. No. 91–510, pp. 3–4 (1969).

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The upsurge of development in the area has caused “in-
creased nutrient loading of the lake largely because of the
increase in impervious coverage of land in the Basin result-
ing from that development.” Ibid.
“Impervious coverage—such as asphalt, concrete, build-
ings, and even packed dirt—prevents precipitation from
being absorbed by the soil. Instead, the water is
gathered and concentrated by such coverage. Larger
amounts of water flowing off a driveway or a roof have
more erosive force than scattered raindrops falling over
a dispersed area—especially one covered with indige-
nous vegetation, which softens the impact of the rain-
drops themselves.” Ibid.
Given this trend, the District Court predicted that “unless
the process is stopped, the lake will lose its clarity and
its trademark blue color, becoming green and opaque for
eternity.” 3
Those areas in the Basin that have steeper slopes produce
more runoff; therefore, they are usually considered “high
hazard” lands. Moreover, certain areas near streams or
wetlands known as “Stream Environment Zones” (SEZs)
are especially vulnerable to the impact of development be-
cause, in their natural state, they act as filters for much
of the debris that runoff carries. Because “[t]he most ob-
vious response to this problem . . . is to restrict develop-
ment around the lake—especially in SEZ lands, as well as in
areas already naturally prone to runoff,” id., at 1232, con-
servation efforts have focused on controlling growth in these
high hazard areas.
In the 1960’s, when the problems associated with the
burgeoning development began to receive significant atten-
3 The District Court added: “Or at least, for a very, very long time. Es-
timates are that, should the lake turn green, it could take over 700 years
for it to return to its natural state, if that were ever possible at all.” 34
F. Supp. 2d, at 1231.

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tion, jurisdiction over the Basin, which occupies 501 square
miles, was shared by the States of California and Nevada,
five counties, several municipalities, and the Forest Service
of the Federal Government. In 1968, the legislatures of the
two States adopted the Tahoe Regional Planning Compact,
see 1968 Cal. Stats. no. 998, p. 1900, § 1; 1968 Nev. Stats. p. 4,
which Congress approved in 1969, Pub. L. 91–148, 83 Stat.
360. The compact set goals for the protection and preser-
vation of the lake and created TRPA as the agency assigned
“to coordinate and regulate development in the Basin and
to conserve its natural resources.” Lake Country Estates,
Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 394
(1979).
Pursuant to the compact, in 1972 TRPA adopted a Land
Use Ordinance that divided the land in the Basin into seven
“land capability districts,” based largely on steepness but
also taking into consideration other factors affecting runoff.
Each district was assigned a “land coverage coefficient—a
recommended limit on the percentage of such land that could
be covered by impervious surface.” Those limits ranged
from 1% for districts 1 and 2 to 30% for districts 6 and 7.
Land in districts 1, 2, and 3 is characterized as “high hazard”
or “sensitive,” while land in districts 4, 5, 6, and 7 is “low
hazard” or “non-sensitive.” The SEZ lands, though often
treated as a separate category, were actually a subcategory
of district 1. 34 F. Supp. 2d, at 1232.
Unfortunately, the 1972 ordinance allowed numerous ex-
ceptions and did not significantly limit the construction of
new residential housing. California became so dissatisfied
with TRPA that it withdrew its financial support and uni-
laterally imposed stricter regulations on the part of the
Basin located in California. Eventually the two States, with
the approval of Congress and the President, adopted an ex-
tensive amendment to the compact that became effective
on December 19, 1980. Pub. L. 96–551, 94 Stat. 3233; Cal.

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Govt. Code Ann. § 66801 (West Supp. 2002); Nev. Rev. Stat.
§ 277.200 (1980).
The 1980 Tahoe Regional Planning Compact (Compact) re-
defined the structure, functions, and voting procedures of
TRPA, App. 37, 94 Stat. 3235–3238; 34 F. Supp. 2d, at 1233,
and directed it to develop regional “environmental thresh-
old carrying capacities”—a term that embraced “standards
for air quality, water quality, soil conservation, vegetation
preservation and noise.” 94 Stat. 3235, 3239. The Compact
provided that TRPA “shall adopt” those standards within
18 months, and that “[w]ithin 1 year after” their adoption
(i. e., by June 19, 1983), it “shall” adopt an amended regional
plan that achieves and maintains those carrying capacities.
Id., at 3240. The Compact also contained a finding by the
legislatures of California and Nevada “that in order to
make effective the regional plan as revised by [TRPA], it is
necessary to halt temporarily works of development in the
region which might otherwise absorb the entire capability
of the region for further development or direct it out of
harmony with the ultimate plan.” Id., at 3243. Accord-
ingly, for the period prior to the adoption of the final plan
(“or until May 1, 1983, whichever is earlier”), the Compact
itself prohibited the development of new subdivisions, condo-
miniums, and apartment buildings, and also prohibited each
city and county in the Basin from granting any more permits
in 1981, 1982, or 1983 than had been granted in 1978.4
During this period TRPA was also working on the de-
velopment of a regional water quality plan to comply with
the Clean Water Act, 33 U. S. C. § 1288 (1994 ed.). Despite
4 App. 104–107. This moratorium did not apply to rights that had
vested before the effective date of the 1980 Compact. Id., at 107–108.
Two months after the 1980 Compact became effective, TRPA adopted
its Ordinance 81–1 broadly defining the term “project” to include the
construction of any new residence and requiring owners of land in dis-
tricts 1, 2, or 3, to get a permit from TRPA before beginning construction
of homes on their property. 34 F. Supp. 2d 1226, 1233 (Nev. 1999).

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the fact that TRPA performed these obligations in “good
faith and to the best of its ability,” 34 F. Supp. 2d, at 1233,
after a few months it concluded that it could not meet the
deadlines in the Compact. On June 25, 1981, it therefore
enacted Ordinance 81–5 imposing the first of the two mora-
toria on development that petitioners challenge in this pro-
ceeding. The ordinance provided that it would become ef-
fective on August 24, 1981, and remain in effect pending the
adoption of the permanent plan required by the Compact.
App. 159, 191.
The District Court made a detailed analysis of the ordi-
nance, noting that it might even prohibit hiking or pic-
nicking on SEZ lands, but construed it as essentially ban-
ning any construction or other activity that involved the
removal of vegetation or the creation of land coverage on all
SEZ lands, as well as on class 1, 2, and 3 lands in California.
34 F. Supp. 2d, at 1233–1235. Some permits could be ob-
tained for such construction in Nevada if certain findings
were made. Id., at 1235. It is undisputed, however, that
Ordinance 81–5 prohibited the construction of any new resi-
dences on SEZ lands in either State and on class 1, 2, and 3
lands in California.
Given the complexity of the task of defining “environ-
mental threshold carrying capacities” and the division of
opinion within TRPA’s governing board, the District Court
found that it was “unsurprising” that TRPA failed to adopt
those thresholds until August 26, 1982, roughly two months
after the Compact deadline. Ibid. Under a liberal reading
of the Compact, TRPA then had until August 26, 1983, to
adopt a new regional plan. 94 Stat. 3240. “Unfortunately,
but again not surprisingly, no regional plan was in place as
of that date.” 34 F. Supp. 2d, at 1235. TRPA therefore
adopted Resolution 83–21, “which completely suspended all
project reviews and approvals, including the acceptance of
new proposals,” and which remained in effect until a new
regional plan was adopted on April 26, 1984. Thus, Resolu-

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tion 83–21 imposed an 8-month moratorium prohibiting all
construction on high hazard lands in either State. In com-
bination, Ordinance 81–5 and Resolution 83–21 effectively
prohibited all construction on sensitive lands in California
and on all SEZ lands in the entire Basin for 32 months,
and on sensitive lands in Nevada (other than SEZ lands) for
eight months. It is these two moratoria that are at issue in
this case.
On the same day that the 1984 plan was adopted, the State
of California filed an action seeking to enjoin its implemen-
tation on the ground that it failed to establish land-use con-
trols sufficiently stringent to protect the Basin. Id., at 1236.
The District Court entered an injunction that was upheld
by the Court of Appeals and remained in effect until a com-
pletely revised plan was adopted in 1987. Both the 1984
injunction and the 1987 plan contained provisions that
prohibited new construction on sensitive lands in the Basin.
As the case comes to us, however, we have no occasion to
consider the validity of those provisions.
II
Approximately two months after the adoption of the 1984
plan, petitioners filed parallel actions against TRPA and
other defendants in federal courts in Nevada and California
that were ultimately consolidated for trial in the District
of Nevada. The petitioners include the Tahoe-Sierra Pres-
ervation Council, Inc., a nonprofit membership corporation
representing about 2,000 owners of both improved and unim-
proved parcels of real estate in the Lake Tahoe Basin, and a
class of some 400 individual owners of vacant lots located
either on SEZ lands or in other parts of districts 1, 2, or 3.
Those individuals purchased their properties prior to the
effective date of the 1980 Compact, App. 34, primarily for
the purpose of constructing “at a time of their choosing” a
single-family home “to serve as a permanent, retirement or

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vacation residence,” id., at 36. When they made those pur-
chases, they did so with the understanding that such con-
struction was authorized provided that “they complied with
all reasonable requirements for building.” Ibid.5
Petitioners’ complaints gave rise to protracted litigation
that has produced four opinions by the Court of Appeals
for the Ninth Circuit and several published District Court
opinions.6 For present purposes, however, we need only
describe those courts’ disposition of the claim that three
actions taken by TRPA—Ordinance 81–5, Resolution 83–21,
and the 1984 regional plan—constituted takings of peti-
tioners’ property without just compensation.7 Indeed, the
challenge to the 1984 plan is not before us because both
the District Court and the Court of Appeals held that it
was the federal injunction against implementing that plan,
rather than the plan itself, that caused the post-1984 injuries
that petitioners allegedly suffered, and those rulings are not
encompassed within our limited grant of certiorari.8 Thus,
5 As explained, supra, at 309, the petitioners who purchased land after
the 1972 compact did so amidst a heavily regulated zoning scheme. Their
property was already classified as part of land capability districts 1, 2,
and 3, or SEZ land. And each land classification was subject to regu-
lations as to the degree of artificial disturbance the land could safely
sustain.
6 911 F. 2d 1331 (1990); 938 F. 2d 153 (1991); 34 F. 3d 753 (1994); 216 F. 3d
764 (2000); 611 F. Supp. 110 (1985); 808 F. Supp. 1474 (1992); 808 F. Supp.
1484 (1992).
7 In 1991, petitioners amended their complaint to allege that the adop-
tion of the 1987 plan also constituted an unconstitutional taking. Ulti-
mately both the District Court and the Court of Appeals held that this
claim was barred by California’s 1-year statute of limitations and Nevada’s
2-year statute of limitations. See 216 F. 3d, at 785–789. Although the
validity of the 1987 plan is not before us, we note that other litigants
have challenged certain applications of that plan. See Suitum v. Tahoe
Regional Planning Agency, 520 U. S. 725 (1997).
8 In his dissent, The Chief Justice contends that the 1984 plan is
before us because the 1980 Compact is a proximate cause of petitioners’

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we limit our discussion to the lower courts’ disposition of the
claims based on the 2-year moratorium (Ordinance 81–5) and
the ensuing 8-month moratorium (Resolution 83–21).
The District Court began its constitutional analysis by
identifying the distinction between a direct government
appropriation of property without just compensation and a
government regulation that imposes such a severe restric-
tion on the owner’s use of her property that it produces
“nearly the same result as a direct appropriation.” 34 F.
Supp. 2d, at 1238. The court noted that all of the claims in
this case “are of the ‘regulatory takings’ variety.” Id., at
1239. Citing our decision in Agins v. City of Tiburon, 447
U. S. 255 (1980), it then stated that a “regulation will con-
stitute a taking when either: (1) it does not substantially
advance a legitimate state interest; or (2) it denies the
owner economically viable use of her land.” 34 F. Supp.
2d, at 1239. The District Court rejected the first alterna-
tive based on its finding that “further development on high
hazard lands such as [petitioners’] would lead to significant
additional damage to the lake.” Id., at 1240.9 With respect
injuries, post, at 343–345. Petitioners, however, do not challenge the
Court of Appeals’ holding on causation in their briefs on the merits, pre-
sumably because they understood when we granted certiorari on the ques-
tion “[w]hether the Court of Appeals properly determined that a tempo-
rary moratorium on land development does not constitute a taking of
property requiring compensation under the Takings Clause of the United
States Constitution,” 533 U. S. 948 (2001), we were only interested in the
narrow question decided today. Throughout the District Court and Court
of Appeals decisions the phrase “temporary moratorium” refers to two
things and two things only: Ordinance 81–5 and Resolution 83–21. The
dissent’s novel theory of causation was not briefed, nor was it discussed
during oral argument.
9 As the District Court explained: “There is a direct connection be-
tween the potential development of plaintiffs’ lands and the harm the lake
would suffer as a result thereof. Further, there has been no suggestion
by the plaintiffs that any less severe response would have adequately
addressed the problems the lake was facing. Thus it is difficult to see

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to the second alternative, the court first considered whether
the analysis adopted in Penn Central Transp. Co. v. New
York City, 438 U. S. 104 (1978), would lead to the conclusion
that TRPA had effected a “partial taking,” and then whether
those actions had effected a “total taking.” 10
Emphasizing the temporary nature of the regulations, the
testimony that the “average holding time of a lot in the
Tahoe area between lot purchase and home construction is
twenty-five years,” and the failure of petitioners to offer
specific evidence of harm, the District Court concluded that
“consideration of the Penn Central factors clearly leads to
the conclusion that there was no taking.” 34 F. Supp. 2d,
at 1240. In the absence of evidence regarding any of the
individual plaintiffs, the court evaluated the “average” pur-
chasers’ intent and found that such purchasers “did not have
reasonable, investment-backed expectations that they would
be able to build single-family homes on their land within the
six-year period involved in this lawsuit.” Id., at 1241.11
how a more proportional response could have been adopted. Given that
TRPA’s actions had widespread application, and were not aimed at an indi-
vidual landowner, the plaintiffs would appear to bear the burden of proof
on this point. They have not met this burden—nor have they really at-
tempted to do so. Although unwilling to stipulate to the fact that TRPA’s
actions substantially advanced a legitimate state interest, the plaintiffs
did not seriously contest the matter at trial.” 34 F. Supp. 2d, at 1240
(citation omitted).
10 The Penn Central analysis involves “a complex of factors including
the regulation’s economic effect on the landowner, the extent to which the
regulation interferes with reasonable investment-backed expectations,
and the character of the government action.” Palazzolo v. Rhode Island,
533 U. S. 606, 617 (2001).
11 The court stated that petitioners “had plenty of time to build before
the restrictions went into effect—and almost everyone in the Tahoe Basin
knew in the late 1970s that a crackdown on development was in the
works.” In addition, the court found “the fact that no evidence was intro-
duced regarding the specific diminution in value of any of the plaintiffs’
individual properties clearly weighs against a finding that there was a
partial taking of the plaintiffs’ property.” 34 F. Supp. 2d, at 1241.

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The District Court had more difficulty with the “total
taking” issue. Although it was satisfied that petitioners’
property did retain some value during the moratoria,12 it
found that they had been temporarily deprived of “all eco-
nomically viable use of their land.” Id., at 1245. The court
concluded that those actions therefore constituted “cate-
gorical” takings under our decision in Lucas v. South Caro-
lina Coastal Council, 505 U. S. 1003 (1992). It rejected
TRPA’s response that Ordinance 81–5 and Resolution 83–
21 were “reasonable temporary planning moratoria” that
should be excluded from Lucas’ categorical approach. The
court thought it “fairly clear” that such interim actions
would not have been viewed as takings prior to our deci-
sions in Lucas and First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U. S. 304
(1987), because “[z]oning boards, cities, counties and other
agencies used them all the time to ‘maintain the status quo
pending study and governmental decision making.’ ” 34 F.
Supp. 2d, at 1248–1249 (quoting Williams v. Central, 907
P. 2d 701, 706 (Colo. App. 1995)). After expressing uncer-
tainty as to whether those cases required a holding that
moratoria on development automatically effect takings, the
court concluded that TRPA’s actions did so, partly because
neither the ordinance nor the resolution, even though in-
tended to be temporary from the beginning, contained an
12 The pretrial order describes purchases by the United States Forest
Service of private lots in environmentally sensitive areas during the
periods when the two moratoria were in effect. During the 2-year period
ending on August 26, 1983, it purchased 215 parcels in California at an
average price of over $19,000 and 45 parcels in Nevada at an average
price of over $39,000; during the ensuing 8-month period, it purchased
167 California parcels at an average price of over $29,000 and 27 Nevada
parcels at an average price of over $41,000. App. 76–77. Moreover,
during those periods some owners sold sewer and building allocations
to owners of higher capability lots “for between $15,000 and $30,000.”
Id., at 77.

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express termination date. 34 F. Supp. 2d, at 1250–1251.13
Accordingly, it ordered TRPA to pay damages to most
petitioners for the 32-month period from August 24, 1981, to
April 25, 1984, and to those owning class 1, 2, or 3 property
in Nevada for the 8-month period from August 27, 1983, to
April 25, 1984. Id., at 1255.
Both parties appealed. TRPA successfully challenged the
District Court’s takings determination, and petitioners un-
successfully challenged the dismissal of their claims based
on the 1984 and 1987 plans. Petitioners did not, however,
challenge the District Court’s findings or conclusions con-
cerning its application of Penn Central. With respect to the
two moratoria, the Ninth Circuit noted that petitioners had
expressly disavowed an argument “that the regulations con-
stitute a taking under the ad hoc balancing approach de-
scribed in Penn Central” and that they did not “dispute that
the restrictions imposed on their properties are appropriate
means of securing the purpose set forth in the Compact.” 14
Accordingly, the only question before the court was “whether
the rule set forth in Lucas applies—that is, whether a cate-
13 Ordinance 81–5 specified that it would terminate when the regional
plan became finalized. And Resolution 83–21 was limited to 90 days, but
was renewed for an additional term. Nevertheless, the District Court
distinguished these measures from true “temporary” moratoria because
there was no fixed date for when they would terminate. 34 F. Supp. 2d,
at 1250–1251.
14 216 F. 3d, at 773. “Below, the district court ruled that the regula-
tions did not constitute a taking under Penn Central’s ad hoc approach,
but that they did constitute a categorical taking under Lucas [v. South
Carolina Coastal Council, 505 U. S. 1003 (1992)]. See Tahoe-Sierra Pres-
ervation Council, 34 F. Supp. 2d at 1238–45. The defendants appealed
the district court’s latter holding, but the plaintiffs did not appeal the
former. And even if arguments regarding the Penn Central test were
fairly encompassed by the defendants’ appeal, the plaintiffs have stated
explicitly on this appeal that they do not argue that the regulations con-
stitute a taking under the ad hoc balancing approach described in Penn
Central.” Ibid.

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gorical taking occurred because Ordinance 81–5 and Reso-
lution 83–21 denied the plaintiffs ‘all economically benefi-
cial or productive use of land.’ ” 216 F. 3d 764, 773 (2000).
Moreover, because petitioners brought only a facial chal-
lenge, the narrow inquiry before the Court of Appeals was
whether the mere enactment of the regulations constituted
a taking.
Contrary to the District Court, the Court of Appeals held
that because the regulations had only a temporary impact
on petitioners’ fee interest in the properties, no categorical
taking had occurred. It reasoned:
“Property interests may have many different dimen-
sions. For example, the dimensions of a property in-
terest may include a physical dimension (which de-
scribes the size and shape of the property in question),
a functional dimension (which describes the extent to
which an owner may use or dispose of the property in
question), and a temporal dimension (which describes
the duration of the property interest). At base, the
plaintiffs’ argument is that we should conceptually
sever each plaintiff ’s fee interest into discrete segments
in at least one of these dimensions—the temporal one—
and treat each of those segments as separate and dis-
tinct property interests for purposes of takings analysis.
Under this theory, they argue that there was a cate-
gorical taking of one of those temporal segments.”
Id., at 774.
Putting to one side “cases of physical invasion or occupa-
tion,” ibid., the court read our cases involving regulatory
taking claims to focus on the impact of a regulation on the
parcel as a whole. In its view a “planning regulation that
prevents the development of a parcel for a temporary pe-
riod of time is conceptually no different than a land-use
restriction that permanently denies all use on a discrete
portion of property, or that permanently restricts a type

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of use across all of the parcel.” Id., at 776. In each situa-
tion, a regulation that affects only a portion of the parcel—
whether limited by time, use, or space—does not deprive the
owner of all economically beneficial use.15
The Court of Appeals distinguished Lucas as applying to
the “ ‘relatively rare’ ” case in which a regulation denies all
productive use of an entire parcel, whereas the moratoria
involve only a “temporal ‘slice’ ” of the fee interest and a
form of regulation that is widespread and well established.
216 F. 3d, at 773–774. It also rejected petitioners’ argument
that our decision in First English was controlling. Accord-
ing to the Court of Appeals, First English concerned the
question whether compensation is an appropriate remedy for
a temporary taking and not whether or when such a taking
has occurred. 216 F. 3d, at 778. Faced squarely with the
question whether a taking had occurred, the court held that
Penn Central was the appropriate framework for analysis.
Petitioners, however, had failed to challenge the District
15 The Court of Appeals added:
“Each of these three types of regulation will have an impact on the parcel’s
value, because each will affect an aspect of the owner’s ‘use’ of the prop-
erty—by restricting when the ‘use’ may occur, where the ‘use’ may occur,
or how the ‘use’ may occur. Prior to Agins [v. City of Tiburon, 447 U. S.
255 (1980)], the Court had already rejected takings challenges to regula-
tions eliminating all ‘use’ on a portion of the property, and to regulations
restricting the type of ‘use’ across the breadth of the property. See Penn
Central, 438 U. S. at 130–31 . . . ; Keystone Bituminous Coal Ass’n, 480
U. S. at 498–99 . . . ; Village of Euclid v. Ambler Realty Co., 272 U. S. 365,
384, 397 . . . (1926) (75% diminution in value caused by zoning law); see
also William C. Haas & Co. v. City & County of San Francisco, 605 F. 2d
1117, 1120 (9th Cir. 1979) (value reduced from $2,000,000 to $100,000). In
those cases, the Court ‘uniformly reject[ed] the proposition that diminu-
tion in property value, standing alone, can establish a “taking.” ’ Penn
Central, 438 U. S. at 131 . . . ; see also Concrete Pipe and Products, Inc.
v. Construction Laborers Pension Trust, 508 U. S. 602, 645 . . . (1993).
There is no plausible basis on which to distinguish a similar diminution
in value that results from a temporary suspension of development.” Id.,
at 776–777.

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Court’s conclusion that they could not make out a taking
claim under the Penn Central factors.
Over the dissent of five judges, the Ninth Circuit denied a
petition for rehearing en banc. 228 F. 3d 998 (2000). In the
dissenters’ opinion, the panel’s holding was not faithful to
this Court’s decisions in First English and Lucas, nor to Jus-
tice Holmes admonition in Pennsylvania Coal Co. v. Mahon,
260 U. S. 393, 416 (1922), that “ ‘a strong public desire to
improve the public condition is not enough to warrant achiev-
ing the desire by a shorter cut than the constitutional way
of paying for the change.’ ” 228 F. 3d, at 1003. Because
of the importance of the case, we granted certiorari limited
to the question stated at the beginning of this opinion. 533
U. S. 948 (2001). We now affirm.
III
Petitioners make only a facial attack on Ordinance 81–5
and Resolution 83–21. They contend that the mere enact-
ment of a temporary regulation that, while in effect, denies
a property owner all viable economic use of her property
gives rise to an unqualified constitutional obligation to com-
pensate her for the value of its use during that period.
Hence, they “face an uphill battle,” Keystone Bituminous
Coal Assn. v. DeBenedictis, 480 U. S. 470, 495 (1987), that
is made especially steep by their desire for a categorical
rule requiring compensation whenever the government
imposes such a moratorium on development. Under their
proposed rule, there is no need to evaluate the landowners’
investment-backed expectations, the actual impact of the
regulation on any individual, the importance of the public
interest served by the regulation, or the reasons for im-
posing the temporary restriction. For petitioners, it is
enough that a regulation imposes a temporary deprivation—
no matter how brief—of all economically viable use to trig-
ger a per se rule that a taking has occurred. Petitioners
assert that our opinions in First English and Lucas have

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already endorsed their view, and that it is a logical applica-
tion of the principle that the Takings Clause was “designed
to bar Government from forcing some people alone to bear
burdens which, in all fairness and justice, should be borne
by the public as a whole.” Armstrong v. United States, 364
U. S. 40, 49 (1960).
We shall first explain why our cases do not support their
proposed categorical rule—indeed, fairly read, they implic-
itly reject it. Next, we shall explain why the Armstrong
principle requires rejection of that rule as well as the less
extreme position advanced by petitioners at oral argument.
In our view the answer to the abstract question whether
a temporary moratorium effects a taking is neither “yes,
always” nor “no, never”; the answer depends upon the par-
ticular circumstances of the case.16 Resisting “[t]he temp-
tation to adopt what amount to per se rules in either direc-
tion,” Palazzolo v. Rhode Island, 533 U. S. 606, 636 (2001)
(O’Connor, J., concurring), we conclude that the circum-
stances in this case are best analyzed within the Penn Cen-
tral framework.
IV
The text of the Fifth Amendment itself provides a basis
for drawing a distinction between physical takings and regu-
latory takings. Its plain language requires the payment of
compensation whenever the government acquires private
property for a public purpose, whether the acquisition is
the result of a condemnation proceeding or a physical ap-
propriation. But the Constitution contains no comparable
reference to regulations that prohibit a property owner from
16 Despite our clear refusal to hold that a moratorium never effects a
taking, The Chief Justice accuses us of “allow[ing] the government to
‘. . . take private property without paying for it,’ ” post, at 349. It may
be true that under a Penn Central analysis petitioners’ land was taken
and compensation would be due. But petitioners failed to challenge the
District Court’s conclusion that there was no taking under Penn Central.
Supra, at 317, and n. 14.

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making certain uses of her private property.17 Our juris-
prudence involving condemnations and physical takings is
as old as the Republic and, for the most part, involves the
straightforward application of per se rules. Our regula-
tory takings jurisprudence, in contrast, is of more recent
vintage and is characterized by “essentially ad hoc, fac-
tual inquiries,” Penn Central, 438 U. S., at 124, designed to
allow “careful examination and weighing of all the relevant
circumstances.” Palazzolo, 533 U. S., at 636 (O’Connor, J.,
concurring).
When the government physically takes possession of an
interest in property for some public purpose, it has a cate-
gorical duty to compensate the former owner, United States
v. Pewee Coal Co., 341 U. S. 114, 115 (1951), regardless of
whether the interest that is taken constitutes an entire
parcel or merely a part thereof. Thus, compensation is
mandated when a leasehold is taken and the government
occupies the property for its own purposes, even though that
use is temporary. United States v. General Motors Corp.,
323 U. S. 373 (1945); United States v. Petty Motor Co., 327
U. S. 372 (1946). Similarly, when the government appro-
priates part of a rooftop in order to provide cable TV access
for apartment tenants, Loretto v. Teleprompter Manhattan
CATV Corp., 458 U. S. 419 (1982); or when its planes use
private airspace to approach a government airport, United
States v. Causby, 328 U. S. 256 (1946), it is required to
pay for that share no matter how small. But a government
regulation that merely prohibits landlords from evicting
17 In determining whether government action affecting property is an
unconstitutional deprivation of ownership rights under the Just Com-
pensation Clause, a court must interpret the word “taken.” When the
government condemns or physically appropriates the property, the fact
of a taking is typically obvious and undisputed. When, however, the
owner contends a taking has occurred because a law or regulation im-
poses restrictions so severe that they are tantamount to a condemnation
or appropriation, the predicate of a taking is not self-evident, and the
analysis is more complex.

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tenants unwilling to pay a higher rent, Block v. Hirsh, 256
U. S. 135 (1921); that bans certain private uses of a portion
of an owner’s property, Village of Euclid v. Ambler Realty
Co., 272 U. S. 365 (1926); Keystone Bituminous Coal Assn.
v. DeBenedictis, 480 U. S. 470 (1987); or that forbids the
private use of certain airspace, Penn Central Transp. Co. v.
New York City, 438 U. S. 104 (1978), does not constitute a
categorical taking. “The first category of cases requires
courts to apply a clear rule; the second necessarily entails
complex factual assessments of the purposes and economic
effects of government actions.” Yee v. Escondido, 503 U. S.
519, 523 (1992). See also Loretto, 458 U. S., at 440; Key-
stone, 480 U. S., at 489, n. 18.
This longstanding distinction between acquisitions of prop-
erty for public use, on the one hand, and regulations pro-
hibiting private uses, on the other, makes it inappropriate
to treat cases involving physical takings as controlling
precedents for the evaluation of a claim that there has been
a “regulatory taking,” 18 and vice versa. For the same rea-
son that we do not ask whether a physical appropriation
advances a substantial government interest or whether it
deprives the owner of all economically valuable use, we
do not apply our precedent from the physical takings con-
18 To illustrate the importance of the distinction, the Court in Loretto,
458 U. S., at 430, compared two wartime takings cases, United States v.
Pewee Coal Co., 341 U. S. 114, 116 (1951), in which there had been an
“actual taking of possession and control” of a coal mine, and United States
v. Central Eureka Mining Co., 357 U. S. 155 (1958), in which, “by contrast,
the Court found no taking where the Government had issued a wartime
order requiring nonessential gold mines to cease operations . . . .” 458
U. S., at 431. Loretto then relied on this distinction in dismissing the
argument that our discussion of the physical taking at issue in the case
would affect landlord-tenant laws. “So long as these regulations do not
require the landlord to suffer the physical occupation of a portion of his
building by a third party, they will be analyzed under the multifactor
inquiry generally applicable to nonpossessory governmental activity.”
Id., at 440 (citing Penn Central).

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text to regulatory takings claims. Land-use regulations
are ubiquitous and most of them impact property values
in some tangential way—often in completely unanticipated
ways. Treating them all as per se takings would transform
government regulation into a luxury few governments could
afford. By contrast, physical appropriations are relatively
rare, easily identified, and usually represent a greater af-
front to individual property rights.19 “This case does not
present the ‘classi[c] taking’ in which the government di-
rectly appropriates private property for its own use,” East-
ern Enterprises v. Apfel, 524 U. S. 498, 522 (1998); instead
the interference with property rights “arises from some
public program adjusting the benefits and burdens of eco-
19 According to The Chief Justice’s dissent, even a temporary, use-
prohibiting regulation should be governed by our physical takings cases
because, under Lucas v. South Carolina Coastal Council, 505 U. S. 1003,
1017 (1992), “from the landowner’s point of view,” the moratorium is the
functional equivalent of a forced leasehold, post, at 348. Of course, from
both the landowner’s and the government’s standpoint there are critical
differences between a leasehold and a moratorium. Condemnation of a
leasehold gives the government possession of the property, the right
to admit and exclude others, and the right to use it for a public purpose.
A regulatory taking, by contrast, does not give the government any right
to use the property, nor does it dispossess the owner or affect her right to
exclude others.
The Chief Justice stretches Lucas’ “equivalence” language too far.
For even a regulation that constitutes only a minor infringement on prop-
erty may, from the landowner’s perspective, be the functional equivalent
of an appropriation. Lucas carved out a narrow exception to the rules
governing regulatory takings for the “extraordinary circumstance” of a
permanent deprivation of all beneficial use. The exception was only
partially justified based on the “equivalence” theory cited by The Chief
Justice’s dissent. It was also justified on the theory that, in the “rela-
tively rare situations where the government has deprived a landowner of
all economically beneficial uses,” it is less realistic to assume that the regu-
lation will secure an “average reciprocity of advantage,” or that govern-
ment could not go on if required to pay for every such restriction. 505
U. S., at 1017–1018. But as we explain, infra, at 339–341, these assump-
tions hold true in the context of a moratorium.

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nomic life to promote the common good,” Penn Central, 438
U. S., at 124.
Perhaps recognizing this fundamental distinction, peti-
tioners wisely do not place all their emphasis on analogies
to physical takings cases. Instead, they rely principally on
our decision in Lucas v. South Carolina Coastal Council,
505 U. S. 1003 (1992)—a regulatory takings case that, never-
theless, applied a categorical rule—to argue that the Penn
Central framework is inapplicable here. A brief review of
some of the cases that led to our decision in Lucas, however,
will help to explain why the holding in that case does not
answer the question presented here.
As we noted in Lucas, it was Justice Holmes’ opinion in
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922),20
that gave birth to our regulatory takings jurisprudence.21
20 The case involved “a bill in equity brought by the defendants in error
to prevent the Pennsylvania Coal Company from mining under their prop-
erty in such way as to remove the supports and cause a subsidence of the
surface and of their house.” Mahon, 260 U. S., at 412. Mahon sought to
prevent Pennsylvania Coal from mining under his property by relying
on a state statute, which prohibited any mining that could undermine the
foundation of a home. The company challenged the statute as a taking
of its interest in the coal without compensation.
21 In Lucas, we explained: “Prior to Justice Holmes’s exposition in Penn-
sylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), it was generally thought
that the Takings Clause reached only a ‘direct appropriation’ of property,
Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent
of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v.
Chicago, 99 U. S. 635, 642 (1879) . . . . Justice Holmes recognized in
Mahon, however, that if the protection against physical appropriations
of private property was to be meaningfully enforced, the government’s
power to redefine the range of interests included in the ownership of prop-
erty was necessarily constrained by constitutional limits. 260 U. S., at
414–415. If, instead, the uses of private property were subject to un-
bridled, uncompensated qualification under the police power, ‘the natural
tendency of human nature [would be] to extend the qualification more
and more until at last private property disappear[ed].’ Id., at 415. These
considerations gave birth in that case to the oft-cited maxim that, ‘while
property may be regulated to a certain extent, if regulation goes too

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In subsequent opinions we have repeatedly and consistently
endorsed Holmes’ observation that “if regulation goes too
far it will be recognized as a taking.” Id., at 415. Justice
Holmes did not provide a standard for determining when a
regulation goes “too far,” but he did reject the view ex-
pressed in Justice Brandeis’ dissent that there could not be
a taking because the property remained in the possession
of the owner and had not been appropriated or used by
the public.22 After Mahon, neither a physical appropriation
nor a public use has ever been a necessary component of a
“regulatory taking.”
In the decades following that decision, we have “generally
eschewed” any set formula for determining how far is too
far, choosing instead to engage in “ ‘essentially ad hoc, fac-
tual inquiries.’ ” Lucas, 505 U. S., at 1015 (quoting Penn
Central, 438 U. S., at 124). Indeed, we still resist the temp-
tation to adopt per se rules in our cases involving par-
tial regulatory takings, preferring to examine “a number
of factors” rather than a simple “mathematically precise”
formula.23 Justice Brennan’s opinion for the Court in Penn
far it will be recognized as a taking.’ Ibid.” 505 U. S., at 1014 (citation
omitted).
22 Justice Brandeis argued: “Every restriction upon the use of property
imposed in the exercise of the police power deprives the owner of some
right theretofore enjoyed, and is, in that sense, an abridgment by the
State of rights in property without making compensation. But restriction
imposed to protect the public health, safety or morals from dangers threat-
ened is not a taking. The restriction here in question is merely the prohi-
bition of a noxious use. The property so restricted remains in the posses-
sion of its owner. The State does not appropriate it or make any use of
it. The State merely prevents the owner from making a use which inter-
feres with paramount rights of the public.” Mahon, 260 U. S., at 417 (dis-
senting opinion).
23 In her concurring opinion in Palazzolo, 533 U. S., at 633, Justice
O’Connor reaffirmed this approach: “Our polestar instead remains the
principles set forth in Penn Central itself and our other cases that gov-
ern partial regulatory takings. Under these cases, interference with
investment-backed expectations is one of a number of factors that a

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Central did, however, make it clear that even though mul-
tiple factors are relevant in the analysis of regulatory tak-
ings claims, in such cases we must focus on “the parcel as
a whole”:
“ ‘Taking’ jurisprudence does not divide a single par-
cel into discrete segments and attempt to determine
whether rights in a particular segment have been en-
tirely abrogated. In deciding whether a particular
governmental action has effected a taking, this Court
focuses rather both on the character of the action and
on the nature and extent of the interference with rights
in the parcel as a whole—here, the city tax block desig-
nated as the ‘landmark site.’ ” Id., at 130–131.
This requirement that “the aggregate must be viewed in
its entirety” explains why, for example, a regulation that
prohibited commercial transactions in eagle feathers, but
did not bar other uses or impose any physical invasion or
restraint upon them, was not a taking. Andrus v. Allard,
444 U. S. 51, 66 (1979). It also clarifies why restrictions on
the use of only limited portions of the parcel, such as setback
ordinances, Gorieb v. Fox, 274 U. S. 603 (1927), or a require-
ment that coal pillars be left in place to prevent mine sub-
sidence, Keystone Bituminous Coal Assn. v. DeBenedictis,
480 U. S., at 498, were not considered regulatory takings.
In each of these cases, we affirmed that “where an owner
possesses a full ‘bundle’ of property rights, the destruction
of one ‘strand’ of the bundle is not a taking.” Andrus, 444
U. S., at 65–66.
court must examine.” Ibid. “Penn Central does not supply mathe-
matically precise variables, but instead provides important guideposts
that lead to the ultimate determination whether just compensation is
required.” Id., at 634. “The temptation to adopt what amount to per se
rules in either direction must be resisted. The Takings Clause requires
careful examination and weighing of all the relevant circumstances in
this context.” Id., at 636.

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While the foregoing cases considered whether particular
regulations had “gone too far” and were therefore invalid,
none of them addressed the separate remedial question of
how compensation is measured once a regulatory taking
is established. In his dissenting opinion in San Diego Gas
& Elec. Co. v. San Diego, 450 U. S. 621, 636 (1981), Justice
Brennan identified that question and explained how he
would answer it:
“The constitutional rule I propose requires that, once
a court finds that a police power regulation has effected
a ‘taking,’ the government entity must pay just compen-
sation for the period commencing on the date the regula-
tion first effected the ‘taking,’ and ending on the date
the government entity chooses to rescind or otherwise
amend the regulation.” Id., at 658.
Justice Brennan’s proposed rule was subsequently endorsed
by the Court in First English, 482 U. S., at 315, 318, 321.
First English was certainly a significant decision, and noth-
ing that we say today qualifies its holding. Nonetheless, it
is important to recognize that we did not address in that
case the quite different and logically prior question whether
the temporary regulation at issue had in fact constituted a
taking.
In First English, the Court unambiguously and repeatedly
characterized the issue to be decided as a “compensation
question” or a “remedial question.” Id., at 311 (“The dispo-
sition of the case on these grounds isolates the remedial
question for our consideration”); see also id., at 313, 318.
And the Court’s statement of its holding was equally unam-
biguous: “We merely hold that where the government’s activ-
ities have already worked a taking of all use of property, no
subsequent action by the government can relieve it of the
duty to provide compensation for the period during which
the taking was effective.” Id., at 321 (emphasis added). In
fact, First English expressly disavowed any ruling on the

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merits of the takings issue because the California courts
had decided the remedial question on the assumption that
a taking had been alleged. Id., at 312–313 (“We reject
appellee’s suggestion that . . . we must independently evalu-
ate the adequacy of the complaint and resolve the takings
claim on the merits before we can reach the remedial ques-
tion”). After our remand, the California courts concluded
that there had not been a taking, First English Evangelical
Church of Glendale v. County of Los Angeles, 210 Cal. App.
3d 1353, 258 Cal. Rptr. 893 (1989), and we declined review of
that decision, 493 U. S. 1056 (1990).
To the extent that the Court in First English referenced
the antecedent takings question, we identified two reasons
why a regulation temporarily denying an owner all use of
her property might not constitute a taking. First, we rec-
ognized that “the county might avoid the conclusion that a
compensable taking had occurred by establishing that the
denial of all use was insulated as a part of the State’s author-
ity to enact safety regulations.” 482 U. S., at 313. Second,
we limited our holding “to the facts presented” and recog-
nized “the quite different questions that would arise in the
case of normal delays in obtaining building permits, changes
in zoning ordinances, variances, and the like which [were]
not before us.” Id., at 321. Thus, our decision in First
English surely did not approve, and implicitly rejected, the
categorical submission that petitioners are now advocating.
Similarly, our decision in Lucas is not dispositive of the
question presented. Although Lucas endorsed and applied
a categorical rule, it was not the one that petitioners propose.
Lucas purchased two residential lots in 1988 for $975,000.
These lots were rendered “valueless” by a statute enacted
two years later. The trial court found that a taking had
occurred and ordered compensation of $1,232,387.50, repre-
senting the value of the fee simple estate, plus interest.
As the statute read at the time of the trial, it effected a
taking that “was unconditional and permanent.” 505 U. S.,

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at 1012. While the State’s appeal was pending, the stat-
ute was amended to authorize exceptions that might have
allowed Lucas to obtain a building permit. Despite the fact
that the amendment gave the State Supreme Court the
opportunity to dispose of the appeal on ripeness grounds,
it resolved the merits of the permanent takings claim and
reversed. Since “Lucas had no reason to proceed on a ‘tem-
porary taking’ theory at trial,” we decided the case on the
permanent taking theory that both the trial court and the
State Supreme Court had addressed. Ibid.
The categorical rule that we applied in Lucas states that
compensation is required when a regulation deprives an
owner of “all economically beneficial uses” of his land. Id.,
at 1019. Under that rule, a statute that “wholly eliminated
the value” of Lucas’ fee simple title clearly qualified as a
taking. But our holding was limited to “the extraordinary
circumstance when no productive or economically beneficial
use of land is permitted.” Id., at 1017. The emphasis on
the word “no” in the text of the opinion was, in effect, re-
iterated in a footnote explaining that the categorical rule
would not apply if the diminution in value were 95% in-
stead of 100%. Id., at 1019, n. 8.24 Anything less than a
“complete elimination of value,” or a “total loss,” the Court
acknowledged, would require the kind of analysis applied in
Penn Central. Lucas, 505 U. S., at 1019–1020, n. 8.25
Certainly, our holding that the permanent “obliteration
of the value” of a fee simple estate constitutes a categorical
taking does not answer the question whether a regulation
24 Justice Kennedy concurred in the judgment on the basis of the reg-
ulation’s impact on “reasonable, investment-backed expectations.” 505
U. S., at 1034.
25 It is worth noting that Lucas underscores the difference between
physical and regulatory takings. See supra, at 322–325. For under our
physical takings cases it would be irrelevant whether a property owner
maintained 5% of the value of her property so long as there was a physical
appropriation of any of the parcel.

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prohibiting any economic use of land for a 32-month period
has the same legal effect. Petitioners seek to bring this
case under the rule announced in Lucas by arguing that we
can effectively sever a 32-month segment from the remain-
der of each landowner’s fee simple estate, and then ask
whether that segment has been taken in its entirety by the
moratoria. Of course, defining the property interest taken
in terms of the very regulation being challenged is circular.
With property so divided, every delay would become a total
ban; the moratorium and the normal permit process alike
would constitute categorical takings. Petitioners’ “concep-
tual severance” argument is unavailing because it ignores
Penn Central’s admonition that in regulatory takings cases
we must focus on “the parcel as a whole.” 438 U. S., at 130–
131. We have consistently rejected such an approach to the
“denominator” question. See Keystone, 480 U. S., at 497.
See also Concrete Pipe & Products of Cal., Inc. v. Construc-
tion Laborers Pension Trust for Southern Cal., 508 U. S.
602, 644 (1993) (“To the extent that any portion of property
is taken, that portion is always taken in its entirety; the rele-
vant question, however, is whether the property taken is all,
or only a portion of, the parcel in question”). Thus, the Dis-
trict Court erred when it disaggregated petitioners’ prop-
erty into temporal segments corresponding to the regula-
tions at issue and then analyzed whether petitioners were
deprived of all economically viable use during each period.
34 F. Supp. 2d, at 1242–1245. The starting point for the
court’s analysis should have been to ask whether there was
a total taking of the entire parcel; if not, then Penn Central
was the proper framework.26
An interest in real property is defined by the metes and
bounds that describe its geographic dimensions and the
26 The Chief Justice’s dissent makes the same mistake by carving out
a 6-year interest in the property, rather than considering the parcel as a
whole, and treating the regulations covering that segment as analogous to
a total taking under Lucas, post, at 351.

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term of years that describes the temporal aspect of the own-
er’s interest. See Restatement of Property §§ 7–9 (1936).
Both dimensions must be considered if the interest is to
be viewed in its entirety. Hence, a permanent depriva-
tion of the owner’s use of the entire area is a taking of
“the parcel as a whole,” whereas a temporary restriction that
merely causes a diminution in value is not. Logically, a fee
simple estate cannot be rendered valueless by a temporary
prohibition on economic use, because the property will re-
cover value as soon as the prohibition is lifted. Cf. Agins
v. City of Tiburon, 447 U. S., at 263, n. 9 (“Even if the appel-
lants’ ability to sell their property was limited during the
pendency of the condemnation proceeding, the appellants
were free to sell or develop their property when the proceed-
ings ended. Mere fluctuations in value during the process
of governmental decisionmaking, absent extraordinary delay,
are ‘incidents of ownership. They cannot be considered as
a “taking” in the constitutional sense’ ” (quoting Danforth v.
United States, 308 U. S. 271, 285 (1939))).
Neither Lucas, nor First English, nor any of our other
regulatory takings cases compels us to accept petitioners’
categorical submission. In fact, these cases make clear
that the categorical rule in Lucas was carved out for the
“extraordinary case” in which a regulation permanently
deprives property of all value; the default rule remains that,
in the regulatory taking context, we require a more fact
specific inquiry. Nevertheless, we will consider whether
the interest in protecting individual property owners from
bearing public burdens “which, in all fairness and justice,
should be borne by the public as a whole,” Armstrong v.
United States, 364 U. S., at 49, justifies creating a new rule
for these circumstances.27
27 Armstrong, like Lucas, was a case that involved the “total destruction
by the Government of all value” in a specific property interest. 364 U. S.,
at 48–49. It is nevertheless perfectly clear that Justice Black’s oft-quoted
comment about the underlying purpose of the guarantee that private prop-

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V
Considerations of “fairness and justice” arguably could
support the conclusion that TRPA’s moratoria were takings
of petitioners’ property based on any of seven different
theories. First, even though we have not previously done
so, we might now announce a categorical rule that, in the
interest of fairness and justice, compensation is required
whenever government temporarily deprives an owner of all
economically viable use of her property. Second, we could
craft a narrower rule that would cover all temporary land-
use restrictions except those “normal delays in obtaining
building permits, changes in zoning ordinances, variances,
and the like” which were put to one side in our opinion in
First English, 482 U. S., at 321. Third, we could adopt a
rule like the one suggested by an amicus supporting peti-
tioners that would “allow a short fixed period for delib-
erations to take place without compensation—say maximum
one year—after which the just compensation requirements”
would “kick in.” 28 Fourth, with the benefit of hindsight, we
might characterize the successive actions of TRPA as a
“series of rolling moratoria” that were the functional equiva-
lent of a permanent taking.29 Fifth, were it not for the find-
ings of the District Court that TRPA acted diligently and in
good faith, we might have concluded that the agency was
stalling in order to avoid promulgating the environmental
threshold carrying capacities and regional plan mandated by
the 1980 Compact. Cf. Monterey v. Del Monte Dunes at
erty shall not be taken for a public use without just compensation applies
to partial takings as well as total takings.
28 Brief for the Institute for Justice as Amicus Curiae 30. Although
amicus describes the 1-year cutoff proposal as the “better approach by
far,” ibid., its primary argument is that Penn Central should be over-
ruled, id., at 20 (“All partial takings by way of land use restriction should
be subject to the same prima facie rules for compensation as a physical
occupation for a limited period of time”).
29 Brief for Petitioners 44. See also Pet. for Cert. i.

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Monterey, Ltd., 526 U. S. 687, 698 (1999). Sixth, apart from
the District Court’s finding that TRPA’s actions represented
a proportional response to a serious risk of harm to the lake,
petitioners might have argued that the moratoria did not
substantially advance a legitimate state interest, see Agins
and Monterey. Finally, if petitioners had challenged the ap-
plication of the moratoria to their individual parcels, instead
of making a facial challenge, some of them might have pre-
vailed under a Penn Central analysis.
As the case comes to us, however, none of the last four
theories is available. The “rolling moratoria” theory was
presented in the petition for certiorari, but our order grant-
ing review did not encompass that issue, 533 U. S. 948 (2001);
the case was tried in the District Court and reviewed in the
Court of Appeals on the theory that each of the two mora-
toria was a separate taking, one for a 2-year period and the
other for an 8-month period. 216 F. 3d, at 769. And, as we
have already noted, recovery on either a bad faith theory or
a theory that the state interests were insubstantial is fore-
closed by the District Court’s unchallenged findings of fact.
Recovery under a Penn Central analysis is also foreclosed
both because petitioners expressly disavowed that theory,
and because they did not appeal from the District Court’s
conclusion that the evidence would not support it. Nonethe-
less, each of the three per se theories is fairly encompassed
within the question that we decided to answer.
With respect to these theories, the ultimate constitutional
question is whether the concepts of “fairness and justice”
that underlie the Takings Clause will be better served by
one of these categorical rules or by a Penn Central inquiry
into all of the relevant circumstances in particular cases.
From that perspective, the extreme categorical rule that
any deprivation of all economic use, no matter how brief,
constitutes a compensable taking surely cannot be sustained.
Petitioners’ broad submission would apply to numerous

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“normal delays in obtaining building permits, changes in
zoning ordinances, variances, and the like,” 482 U. S., at 321,
as well as to orders temporarily prohibiting access to crime
scenes, businesses that violate health codes, fire-damaged
buildings, or other areas that we cannot now foresee. Such
a rule would undoubtedly require changes in numerous prac-
tices that have long been considered permissible exercises
of the police power. As Justice Holmes warned in Mahon,
“[g]overnment hardly could go on if to some extent values
incident to property could not be diminished without paying
for every such change in the general law.” 260 U. S., at 413.
A rule that required compensation for every delay in the
use of property would render routine government processes
prohibitively expensive or encourage hasty decisionmaking.
Such an important change in the law should be the product
of legislative rulemaking rather than adjudication.30
More importantly, for reasons set out at some length by
Justice O’Connor in her concurring opinion in Palazzolo
v. Rhode Island, 533 U. S., at 636, we are persuaded that the
better approach to claims that a regulation has effected a
temporary taking “requires careful examination and weigh-
ing of all the relevant circumstances.” In that opinion,
Justice O’Connor specifically considered the role that the
“temporal relationship between regulatory enactment and
title acquisition” should play in the analysis of a takings
claim. Id., at 632. We have no occasion to address that
particular issue in this case, because it involves a differ-
30 In addition, we recognize the anomaly that would be created if we
were to apply Penn Central when a landowner is permanently deprived
of 95% of the use of her property, Lucas, 505 U. S., at 1019, n. 8, and yet
find a per se taking anytime the same property owner is deprived of all
use for only five days. Such a scheme would present an odd inversion
of Justice Holmes’ adage: “A limit in time, to tide over a passing trouble,
well may justify a law that could not be upheld as a permanent change.”
Block v. Hirsh, 256 U. S. 135, 157 (1921).

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ent temporal relationship—the distinction between a tem-
porary restriction and one that is permanent. Her com-
ments on the “fairness and justice” inquiry are, neverthe-
less, instructive:
“Today’s holding does not mean that the timing of the
regulation’s enactment relative to the acquisition of title
is immaterial to the Penn Central analysis. Indeed, it
would be just as much error to expunge this consid-
eration from the takings inquiry as it would be to ac-
cord it exclusive significance. Our polestar instead re-
mains the principles set forth in Penn Central itself and
our other cases that govern partial regulatory takings.
Under these cases, interference with investment-backed
expectations is one of a number of factors that a court
must examine. . . .
“The Fifth Amendment forbids the taking of private
property for public use without just compensation. We
have recognized that this constitutional guarantee is
‘ “designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.” ’
Penn Central, [438 U. S.], at 123–124 (quoting Arm-
strong v. United States, 364 U. S. 40, 49 (1960)). The
concepts of ‘fairness and justice’ that underlie the
Takings Clause, of course, are less than fully deter-
minate. Accordingly, we have eschewed ‘any “set for-
mula” for determining when “justice and fairness” re-
quire that economic injuries caused by public action
be compensated by the government, rather than re-
main disproportionately concentrated on a few persons.’
Penn Central, supra, at 124 (quoting Goldblatt v. Hemp-
stead, 369 U. S. 590, 594 (1962)). The outcome instead
‘depends largely “upon the particular circumstances
[in that] case.” ’ Penn Central, supra, at 124 (quoting
United States v. Central Eureka Mining Co., 357 U. S.
155, 168 (1958)).” Id., at 633.

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In rejecting petitioners’ per se rule, we do not hold that the
temporary nature of a land-use restriction precludes finding
that it effects a taking; we simply recognize that it should
not be given exclusive significance one way or the other.
A narrower rule that excluded the normal delays asso-
ciated with processing permits, or that covered only delays
of more than a year, would certainly have a less severe im-
pact on prevailing practices, but it would still impose serious
financial constraints on the planning process.31 Unlike the
“extraordinary circumstance” in which the government de-
prives a property owner of all economic use, Lucas, 505 U. S.,
at 1017, moratoria like Ordinance 81–5 and Resolution 83–
21 are used widely among land-use planners to preserve the
status quo while formulating a more permanent develop-
ment strategy.32 In fact, the consensus in the planning com-
31 Petitioners fail to offer a persuasive explanation for why moratoria
should be treated differently from ordinary permit delays. They contend
that a permit applicant need only comply with certain specific require-
ments in order to receive one and can expect to develop at the end of the
process, whereas there is nothing the landowner subject to a moratorium
can do but wait, with no guarantee that a permit will be granted at the
end of the process. Brief for Petitioners 28. Setting aside the obvious
problem with basing the distinction on a course of events we can only
know after the fact—in the context of a facial challenge—petitioners’
argument breaks down under closer examination because there is no guar-
antee that a permit will be granted, or that a decision will be made within
a year. See, e. g., Dufau v. United States, 22 Cl. Ct. 156 (1990) (holding
that 16-month delay in granting a permit did not constitute a temporary
taking). Moreover, under petitioners’ modified categorical rule, there
would be no per se taking if TRPA simply delayed action on all permits
pending a regional plan. Fairness and justice do not require that TRPA
be penalized for achieving the same result, but with full disclosure.
32 See, e. g., Santa Fe Village Venture v. Albuquerque, 914 F. Supp. 478,
483 (N. M. 1995) (30-month moratorium on development of lands within
the Petroglyph National Monument was not a taking); Williams v. Cen-
tral, 907 P. 2d 701, 703–706 (Colo. App. 1995) (10-month moratorium on
development in gaming district while studying city’s ability to absorb
growth was not a compensable taking); Woodbury Place Partners v. Wood-
bury, 492 N. W. 2d 258 (Minn. App. 1993) (moratorium pending review

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munity appears to be that moratoria, or “interim develop-
ment controls” as they are often called, are an essential tool
of successful development.33 Yet even the weak version of
petitioners’ categorical rule would treat these interim meas-
ures as takings regardless of the good faith of the planners,
the reasonable expectations of the landowners, or the actual
impact of the moratorium on property values.34
of plan for land adjacent to interstate highway was not a taking even
though it deprived property owner of all economically viable use of its
property for two years); Zilber v. Moranga, 692 F. Supp. 1195 (ND Cal.
1988) (18-month development moratorium during completion of a compre-
hensive scheme for open space did not require compensation). See also
Wayman, Leaders Consider Options for Town Growth, Charlotte Ob-
server, Feb. 3, 2002, p. 15M (describing 10-month building moratorium
imposed “to give town leaders time to plan for development”); Wallman,
City May Put Reins on Beach Projects, Sun-Sentinel, May 16, 2000, p. 1B
(2-year building moratorium on beachfront property in Fort Lauderdale
pending new height, width, and dispersal regulations); Foderaro, In Sub-
urbs, They’re Cracking Down on the Joneses, N. Y. Times, Mar. 19, 2001,
p. A1 (describing moratorium imposed in Eastchester, New York, during
a review of the town’s zoning code to address the problem of oversized
homes); Dawson, Commissioners recommend Aboite construction ban be
lifted, Fort Wayne News Sentinel, May 4, 2001, p. 1A (3-year moratorium
to allow improvements in the water and sewage treatment systems).
33 See J. Juergensmeyer & T. Roberts, Land Use Planning and Control
Law §§ 5.28(G) and 9.6 (1998); Garvin & Leitner, Drafting Interim Devel-
opment Ordinances: Creating Time to Plan, 48 Land Use Law & Zoning
Digest 3 (June 1996) (“With the planning so protected, there is no need
for hasty adoption of permanent controls in order to avoid the estab-
lishment of nonconforming uses, or to respond in an ad hoc fashion to
specific problems. Instead, the planning and implementation process may
be permitted to run its full and natural course with widespread citizen
input and involvement, public debate, and full consideration of all issues
and points of view”); Freilich, Interim Development Controls: Essential
Tools for Implementing Flexible Planning and Zoning, 49 J. Urb. L. 65
(1971).
34 The Chief Justice offers another alternative, suggesting that delays
of six years or more should be treated as per se takings. However, his
dissent offers no explanation for why 6 years should be the cutoff point
rather than 10 days, 10 months, or 10 years. It is worth emphasizing
that we do not reject a categorical rule in this case because a 32-month
moratorium is just not that harsh. Instead, we reject a categorical rule

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The interest in facilitating informed decisionmaking by
regulatory agencies counsels against adopting a per se rule
that would impose such severe costs on their deliberations.
Otherwise, the financial constraints of compensating prop-
erty owners during a moratorium may force officials to rush
through the planning process or to abandon the practice
altogether. To the extent that communities are forced to
abandon using moratoria, landowners will have incentives to
develop their property quickly before a comprehensive plan
can be enacted, thereby fostering inefficient and ill-conceived
growth. A finding in the 1980 Compact itself, which pre-
sumably was endorsed by all three legislative bodies that
participated in its enactment, attests to the importance of
that concern. 94 Stat. 3243 (“The legislatures of the States
of California and Nevada find that in order to make effective
the regional plan as revised by the agency, it is necessary to
halt temporarily works of development in the region which
might otherwise absorb the entire capability of the region
for further development or direct it out of harmony with the
ultimate plan”).
As Justice Kennedy explained in his opinion for the
Court in Palazzolo, it is the interest in informed deci-
sionmaking that underlies our decisions imposing a strict
ripeness requirement on landowners asserting regulatory
takings claims:
“These cases stand for the important principle that a
landowner may not establish a taking before a land-
use authority has the opportunity, using its own rea-
sonable procedures, to decide and explain the reach of
a challenged regulation. Under our ripeness rules a
takings claim based on a law or regulation which is
alleged to go too far in burdening property depends
upon the landowner’s first having followed reasonable
because we conclude that the Penn Central framework adequately directs
the inquiry to the proper considerations—only one of which is the length
of the delay.

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and necessary steps to allow regulatory agencies to ex-
ercise their full discretion in considering development
plans for the property, including the opportunity to
grant any variances or waivers allowed by law. As a
general rule, until these ordinary processes have been
followed the extent of the restriction on property is
not known and a regulatory taking has not yet been
established. See Suitum [v. Tahoe Regional Planning
Agency, 520 U. S. 725, 736, and n. 10 (1997)] (noting
difficulty of demonstrating that ‘mere enactment’ of
regulations restricting land use effects a taking).” 533
U. S., at 620–621.
We would create a perverse system of incentives were we to
hold that landowners must wait for a takings claim to ripen
so that planners can make well-reasoned decisions while, at
the same time, holding that those planners must compensate
landowners for the delay.
Indeed, the interest in protecting the decisional process
is even stronger when an agency is developing a regional
plan than when it is considering a permit for a single parcel.
In the proceedings involving the Lake Tahoe Basin, for ex-
ample, the moratoria enabled TRPA to obtain the benefit of
comments and criticisms from interested parties, such as the
petitioners, during its deliberations.35 Since a categorical
rule tied to the length of deliberations would likely create
added pressure on decisionmakers to reach a quick resolution
of land-use questions, it would only serve to disadvantage
those landowners and interest groups who are not as or-
35 Petitioner Preservation Council, “through its authorized representa-
tives, actively participated in the entire TRPA regional planning process
leading to the adoption of the 1984 Regional Plan at issue in this action,
and attended and expressed its views and concerns, orally and in writing,
at each public hearing held by the Defendant TRPA in connection with
the consideration of the 1984 Regional Plan at issue herein, as well as
in connection with the adoption of Ordinance 81–5 and the Revised 1987
Regional Plan addressed herein.” App. 24.

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341 Cite as: 535 U. S. 302 (2002)
Opinion of the Court
ganized or familiar with the planning process. Moreover,
with a temporary ban on development there is a lesser
risk that individual landowners will be “singled out” to bear
a special burden that should be shared by the public as a
whole. Nollan v. California Coastal Comm’n, 483 U. S.
825, 835 (1987). At least with a moratorium there is a clear
“reciprocity of advantage,” Mahon, 260 U. S., at 415, because
it protects the interests of all affected landowners against
immediate construction that might be inconsistent with the
provisions of the plan that is ultimately adopted. “While
each of us is burdened somewhat by such restrictions, we,
in turn, benefit greatly from the restrictions that are placed
on others.” Keystone, 480 U. S., at 491. In fact, there is
reason to believe property values often will continue to in-
crease despite a moratorium. See, e. g., Growth Properties,
Inc. v. Klingbeil Holding Co., 419 F. Supp. 212, 218 (Md.
1976) (noting that land values could be expected to increase
20% during a 5-year moratorium on development). Cf. For-
est Properties, Inc. v. United States, 177 F. 3d 1360, 1367
(CA Fed. 1999) (record showed that market value of the en-
tire parcel increased despite denial of permit to fill and de-
velop lake-bottom property). Such an increase makes sense
in this context because property values throughout the Basin
can be expected to reflect the added assurance that Lake
Tahoe will remain in its pristine state. Since in some cases
a 1-year moratorium may not impose a burden at all, we
should not adopt a rule that assumes moratoria always force
individuals to bear a special burden that should be shared by
the public as a whole.
It may well be true that any moratorium that lasts for
more than one year should be viewed with special skepti-
cism. But given the fact that the District Court found that
the 32 months required by TRPA to formulate the 1984 Re-
gional Plan was not unreasonable, we could not possibly con-
clude that every delay of over one year is constitutionally

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342 TAHOE-SIERRA PRESERVATION COUNCIL, INC. v.
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Opinion of the Court
unacceptable.36 Formulating a general rule of this kind is
a suitable task for state legislatures.37 In our view, the
duration of the restriction is one of the important factors
that a court must consider in the appraisal of a regulatory
takings claim, but with respect to that factor as with respect
to other factors, the “temptation to adopt what amount to
per se rules in either direction must be resisted.” Palaz-
zolo, 533 U. S., at 636 (O’Connor, J., concurring). There
may be moratoria that last longer than one year which in-
terfere with reasonable investment-backed expectations, but
as the District Court’s opinion illustrates, petitioners’ pro-
posed rule is simply “too blunt an instrument” for identifying
those cases. Id., at 628. We conclude, therefore, that the
interest in “fairness and justice” will be best served by rely-
ing on the familiar Penn Central approach when deciding
cases like this, rather than by attempting to craft a new cate-
gorical rule.
36 We note that the temporary restriction that was ultimately upheld in
the First English case lasted for more than six years before it was re-
placed by a permanent regulation. First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 210 Cal. App. 3d 1353, 258
Cal. Rptr. 893 (1989).
37 Several States already have statutes authorizing interim zoning
ordinances with specific time limits. See Cal. Govt. Code Ann. § 65858
(West Supp. 2002) (authorizing interim ordinance of up to two years); Colo.
Rev. Stat. § 30–28–121 (2001) (six months); Ky. Rev. Stat. Ann. § 100.201
(2001) (one year); Mich. Comp. Laws Ann. § 125.215 (West 2001) (three
years); Minn. Stat. § 394.34 (2000) (two years); N. H. Rev. Stat. Ann.
§ 674:23 (West 2001) (one year); Ore. Rev. Stat. Ann. § 197.520 (1997) (10
months); S. D. Codified Laws § 11–2–10 (2001) (two years); Utah Code Ann.
§ 17–27–404 (1995) (18 months); Wash. Rev. Code § 35.63.200 (2001); Wis.
Stat. § 62.23(7)(d) (2001) (two years). Other States, although without spe-
cific statutory authority, have recognized that reasonable interim zoning
ordinances may be enacted. See, e. g., S. E. W. Freil v. Triangle Oil Co.,
76 Md. App. 96, 543 A. 2d 863 (1988); New Jersey Shore Builders Assn. v.
Dover Twp. Comm., 191 N. J. Super. 627, 468 A. 2d 742 (1983); SCA Chemi-
cal Waste Servs., Inc. v. Konigsberg, 636 S. W. 2d 430 (Tenn. 1982); Stur-
gess v. Chilmark, 380 Mass. 246, 402 N. E. 2d 1346 (1980); Lebanon v.
Woods, 153 Conn. 182, 215 A. 2d 112 (1965).

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Rehnquist, C. J., dissenting
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Scalia
and Justice Thomas join, dissenting.
For over half a decade petitioners were prohibited from
building homes, or any other structures, on their land. Be-
cause the Takings Clause requires the government to pay
compensation when it deprives owners of all economically
viable use of their land, see Lucas v. South Carolina Coastal
Council, 505 U. S. 1003 (1992), and because a ban on all de-
velopment lasting almost six years does not resemble any
traditional land-use planning device, I dissent.
I
“A court cannot determine whether a regulation has gone
‘too far’ unless it knows how far the regulation goes.” Mac-
Donald, Sommer & Frates v. Yolo County, 477 U. S. 340, 348
(1986) (citing Pennsylvania Coal Co. v. Mahon, 260 U. S. 393,
415 (1922)).1 In failing to undertake this inquiry, the Court
1 We are not bound by the Court of Appeals’ determination that peti-
tioners’ claim under 42 U. S. C. § 1983 (1994 ed., Supp. V) permitted only
challenges to Ordinance 81–5 and Regulation 83–21. Petitioners sought
certiorari on the Court of Appeals’ ruling that respondent Tahoe Regional
Planning Agency (hereinafter respondent) did not cause petitioners’ injury
from 1984 to 1987. Pet. for Cert. 27–30. We did not grant certiorari
on any of the petition’s specific questions presented, but formulated the
following question: “Whether the Court of Appeals properly determined
that a temporary moratorium on land development does not constitute a
taking of property requiring compensation under the Takings Clause of
the United States Constitution?” 533 U. S. 948–949 (2001). This Court’s
Rule 14(1)(a) provides that a “question presented is deemed to comprise
every subsidiary question fairly included therein.” The question of how
long the moratorium on land development lasted is necessarily subsumed
within the question whether the moratorium constituted a taking. Peti-
tioners did not assume otherwise. Their brief on the merits argues that
respondent “effectively blocked all construction for the past two decades.”
Brief for Petitioners 7.

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Rehnquist, C. J., dissenting
ignores much of the impact of respondent’s conduct on peti-
tioners. Instead, it relies on the flawed determination of the
Court of Appeals that the relevant time period lasted only
from August 1981 until April 1984. Ante, at 312, 313–314.
During that period, Ordinance 81–5 and Regulation 83–21
prohibited development pending the adoption of a new re-
gional land-use plan. The adoption of the 1984 Regional
Plan (hereinafter Plan or 1984 Plan) did not, however, change
anything from petitioners’ standpoint. After the adoption
of the 1984 Plan, petitioners still could make no use of their
land.
The Court of Appeals disregarded this post-April 1984
deprivation on the ground that respondent did not “cause” it.
In a 42 U. S. C. § 1983 action, “the plaintiff must demonstrate
that the defendant’s conduct was the actionable cause of the
claimed injury.” 216 F. 3d 764, 783 (CA9 2000). Applying
this principle, the Court of Appeals held that the 1984 Plan
did not amount to a taking because the Plan actually allowed
permits to issue for the construction of single-family resi-
dences. Those permits were never issued because the Dis-
trict Court immediately issued a temporary restraining
order, and later a permanent injunction that lasted until
1987, prohibiting the approval of any building projects under
the 1984 Plan. Thus, the Court of Appeals concluded that
the “1984 Plan itself could not have constituted a taking,”
because it was the injunction, not the Plan, that prohibited
development during this period. Id., at 784. The Court of
Appeals is correct that the 1984 Plan did not cause petition-
ers’ injury. But that is the right answer to the wrong ques-
tion. The causation question is not limited to whether the
1984 Plan caused petitioners’ injury; the question is whether
respondent caused petitioners’ injury.
We have never addressed the § 1983 causation requirement
in the context of a regulatory takings claim, though language
in Penn Central Transp. Co. v. New York City, 438 U. S. 104
(1978), suggests that ordinary principles of proximate cause

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345 Cite as: 535 U. S. 302 (2002)
Rehnquist, C. J., dissenting
govern the causation inquiry for takings claims. Id., at 124.
The causation standard does not require much elaboration in
this case, because respondent was undoubtedly the “moving
force” behind petitioners’ inability to build on their land from
August 1984 through 1987. Monell v. New York City Dept.
of Social Servs., 436 U. S. 658, 694 (1978) (§ 1983 causation
established when government action is the “moving force”
behind the alleged constitutional violation). The injunction
in this case issued because the 1984 Plan did not comply
with the 1980 Tahoe Regional Planning Compact (Compact)
and regulations issued pursuant to the Compact. And, of
course, respondent is responsible for the Compact and its
regulations.
On August 26, 1982, respondent adopted Resolution 82–11.
That resolution established “environmental thresholds for
water quality, soil conservation, air quality, vegetation pres-
ervation, wildlife, fisheries, noise, recreation, and scenic re-
sources.” California v. Tahoe Regional Planning Agency,
766 F. 2d 1308, 1311 (CA9 1985). The District Court en-
joined the 1984 Plan in part because the Plan would have
allowed 42,000 metric tons of soil per year to erode from
some of the single-family residences, in excess of the Reso-
lution 82–11 threshold for soil conservation. Id., at 1315;
see also id., at 1312. Another reason the District Court
enjoined the 1984 Plan was that it did not comply with article
V(g) of the Compact, which requires a finding, “with respect
to each project, that the project will not cause the estab-
lished [environmental] thresholds to be exceeded.” Ibid.
Thus, the District Court enjoined the 1984 Plan because the
Plan did not comply with the environmental requirements of
respondent’s regulations and of the Compact itself.
Respondent is surely responsible for its own regulations,
and it is also responsible for the Compact as it is the gov-
ernmental agency charged with administering the Compact.
Compact, Art. I(c), 94 Stat. 3234. It follows that respondent
was the “moving force” behind petitioners’ inability to de-

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346 TAHOE-SIERRA PRESERVATION COUNCIL, INC. v.
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velop their land from April 1984 through the enactment of
the 1987 plan. Without the environmental thresholds estab-
lished by the Compact and Resolution 82–11, the 1984 Plan
would have gone into effect and petitioners would have been
able to build single-family residences. And it was certainly
foreseeable that development projects exceeding the en-
vironmental thresholds would be prohibited; indeed, that
was the very purpose of enacting the thresholds.
Because respondent caused petitioners’ inability to use
their land from 1981 through 1987, that is the appropriate
period of time from which to consider their takings claim.
II
I now turn to determining whether a ban on all economic
development lasting almost six years is a taking. Lucas re-
affirmed our “frequently expressed” view that “when the
owner of real property has been called upon to sacrifice
all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has
suffered a taking.” 505 U. S., at 1019. See also Agins v.
City of Tiburon, 447 U. S. 255, 258–259 (1980). The District
Court in this case held that the ordinances and resolu-
tions in effect between August 24, 1981, and April 25, 1984,
“did in fact deny the plaintiffs all economically viable use
of their land.” 34 F. Supp. 2d 1226, 1245 (Nev. 1999). The
Court of Appeals did not overturn this finding. And the
1984 injunction, issued because the environmental thresh-
olds issued by respondent did not permit the development
of single-family residences, forced petitioners to leave their
land economically idle for at least another three years. The
Court does not dispute that petitioners were forced to leave
their land economically idle during this period. See ante,
at 312. But the Court refuses to apply Lucas on the ground
that the deprivation was “temporary.”
Neither the Takings Clause nor our case law supports
such a distinction. For one thing, a distinction between

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Rehnquist, C. J., dissenting
“temporary” and “permanent” prohibitions is tenuous. The
“temporary” prohibition in this case that the Court finds
is not a taking lasted almost six years.2 The “permanent”
prohibition that the Court held to be a taking in Lucas lasted
less than two years. See 505 U. S., at 1011–1012. The “per-
manent” prohibition in Lucas lasted less than two years be-
cause the law, as it often does, changed. The South Carolina
Legislature in 1990 decided to amend the 1988 Beachfront
Management Act to allow the issuance of “ ‘special permits’
for the construction or reconstruction of habitable struc-
tures seaward of the baseline.” Id., at 1011–1012. Land-
use regulations are not irrevocable. And the government
can even abandon condemned land. See United States v.
Dow, 357 U. S. 17, 26 (1958). Under the Court’s decision
today, the takings question turns entirely on the initial label
given a regulation, a label that is often without much mean-
ing. There is every incentive for government to simply
label any prohibition on development “temporary,” or to
fix a set number of years. As in this case, this initial desig-
nation does not preclude the government from repeatedly
extending the “temporary” prohibition into a long-term ban
on all development. The Court now holds that such a desig-
nation by the government is conclusive even though in fact
the moratorium greatly exceeds the time initially specified.
Apparently, the Court would not view even a 10-year mora-
torium as a taking under Lucas because the moratorium is
not “permanent.”
Our opinion in First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U. S. 304
(1987), rejects any distinction between temporary and per-
manent takings when a landowner is deprived of all economi-
cally beneficial use of his land. First English stated that
“ ‘temporary takings which, as here, deny a landowner all
use of his property, are not different in kind from permanent
2 Even under the Court’s mistaken view that the ban on development
lasted only 32 months, the ban in this case exceeded the ban in Lucas.

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takings, for which the Constitution clearly requires com-
pensation.” Id., at 318. Because of First English’s rule
that “temporary deprivations of use are compensable under
the Takings Clause,” the Court in Lucas found nothing
problematic about the later developments that potentially
made the ban on development temporary. 505 U. S., at
1011–1012 (citing First English, supra); see also 505 U. S.,
at 1033 (Kennedy, J., concurring in judgment) (“It is well
established that temporary takings are as protected by the
Constitution as are permanent ones” (citing First English,
supra, at 318)).
More fundamentally, even if a practical distinction be-
tween temporary and permanent deprivations were plausi-
ble, to treat the two differently in terms of takings law
would be at odds with the justification for the Lucas rule.
The Lucas rule is derived from the fact that a “total depriva-
tion of beneficial use is, from the landowner’s point of view,
the equivalent of a physical appropriation.” 505 U. S., at
1017. The regulation in Lucas was the “practical equiva-
lence” of a long-term physical appropriation, i. e., a condem-
nation, so the Fifth Amendment required compensation.
The “practical equivalence,” from the landowner’s point of
view, of a “temporary” ban on all economic use is a forced
leasehold. For example, assume the following situation: Re-
spondent is contemplating the creation of a National Park
around Lake Tahoe to preserve its scenic beauty. Respond-
ent decides to take a 6-year leasehold over petitioners’ prop-
erty, during which any human activity on the land would be
prohibited, in order to prevent any further destruction to the
area while it was deciding whether to request that the area
be designated a National Park.
Surely that leasehold would require compensation. In a
series of World War II-era cases in which the Government
had condemned leasehold interests in order to support the
war effort, the Government conceded that it was required

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Rehnquist, C. J., dissenting
to pay compensation for the leasehold interest.3 See United
States v. Petty Motor Co., 327 U. S. 372 (1946); United States
v. General Motors Corp., 323 U. S. 373, 376 (1945). From
petitioners’ standpoint, what happened in this case is no
different than if the government had taken a 6-year lease
of their property. The Court ignores this “practical equiva-
lence” between respondent’s deprivation and the depriva-
tion resulting from a leasehold. In so doing, the Court
allows the government to “do by regulation what it cannot do
through eminent domain—i. e., take private property with-
out paying for it.” 228 F. 3d 998, 999 (CA9 2000) (Kozinski,
J., dissenting from denial of rehearing en banc).
Instead of acknowledging the “practical equivalence” of
this case and a condemned leasehold, the Court analogizes
to other areas of takings law in which we have distinguished
between regulations and physical appropriations, see ante,
at 321–324. But whatever basis there is for such distinc-
tions in those contexts does not apply when a regulation de-
prives a landowner of all economically beneficial use of his
land. In addition to the “practical equivalence” from the
landowner’s perspective of such a regulation and a physical
appropriation, we have held that a regulation denying all
productive use of land does not implicate the traditional
justification for differentiating between regulations and
physical appropriations. In “the extraordinary circumstance
when no productive or economically beneficial use of land is
permitted,” it is less likely that “the legislature is simply
3 There was no dispute that just compensation was required in those
cases. The disagreement involved how to calculate that compensation.
In United States v. General Motors Corp., 323 U. S. 373 (1945), for ex-
ample, the issues before the Court were how to value the leasehold in-
terest (i. e., whether the “long-term rental value [should be] the sole meas-
ure of the value of such short-term occupancy,” id., at 380), whether the
Government had to pay for the respondent’s removal of personal property
from the condemned warehouse, and whether the Government had to pay
for the reduction in value of the respondent’s equipment and fixtures left
in the warehouse. Id., at 380–381.

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‘adjusting the benefits and burdens of economic life’ . . . in a
manner that secures an ‘average reciprocity of advantage’
to everyone concerned,” Lucas, supra, at 1017–1018 (quoting
Penn Central Transp. Co. v. New York City, 438 U. S., at 124,
and Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415), and
more likely that the property “is being pressed into some
form of public service under the guise of mitigating serious
public harm,” Lucas, supra, at 1018.
The Court also reads Lucas as being fundamentally con-
cerned with value, ante, at 329–331, rather than with the
denial of “all economically beneficial or productive use of
land,” 505 U. S., at 1015. But Lucas repeatedly discusses
its holding as applying where “no productive or economically
beneficial use of land is permitted.” Id., at 1017; see also
ibid. (“[T]otal deprivation of beneficial use is, from the land-
owner’s point of view, the equivalent of a physical appropria-
tion”); id., at 1016 (“[T]he Fifth Amendment is violated when
land-use regulation . . . denies an owner economically viable
use of his land”); id., at 1018 (“[T]he functional basis for
permitting the government, by regulation, to affect property
values without compensation . . . does not apply to the rela-
tively rare situations where the government has deprived a
landowner of all economically beneficial uses”); ibid. (“[T]he
fact that regulations that leave the owner of land without
economically beneficial or productive options for its use . . .
carry with them a heightened risk that private property is
being pressed into some form of public service”); id., at 1019
(“[W]hen the owner of real property has been called upon to
sacrifice all economically beneficial uses in the name of the
common good, that is, to leave his property economically idle,
he has suffered a taking”). Moreover, the Court’s position
that value is the sine qua non of the Lucas rule proves too
much. Surely, the land at issue in Lucas retained some mar-
ket value based on the contingency, which soon came to fru-
ition (see supra, at 347), that the development ban would
be amended.

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Lucas is implicated when the government deprives a land-
owner of “all economically beneficial or productive use of
land.” 505 U. S., at 1015. The District Court found, and
the Court agrees, that the moratorium “temporarily” de-
prived petitioners of “ ‘all economically viable use of their
land.’ ” Ante, at 316. Because the rationale for the Lucas
rule applies just as strongly in this case, the “temporary”
denial of all viable use of land for six years is a taking.
III
The Court worries that applying Lucas here compels find-
ing that an array of traditional, short-term, land-use plan-
ning devices are takings. Ante, at 334–335, 337–338. But
since the beginning of our regulatory takings jurisprudence,
we have recognized that property rights “are enjoyed under
an implied limitation.” Mahon, supra, at 413. Thus, in
Lucas, after holding that the regulation prohibiting all eco-
nomically beneficial use of the coastal land came within our
categorical takings rule, we nonetheless inquired into
whether such a result “inhere[d] in the title itself, in the
restrictions that background principles of the State’s law of
property and nuisance already place upon land ownership.”
505 U. S., at 1029. Because the regulation at issue in Lucas
purported to be permanent, or at least long term, we con-
cluded that the only implied limitation of state property law
that could achieve a similar long-term deprivation of all eco-
nomic use would be something “achieved in the courts—by
adjacent landowners (or other uniquely affected persons)
under the State’s law of private nuisance, or by the State
under its complementary power to abate nuisances that af-
fect the public generally, or otherwise.” Ibid.
When a regulation merely delays a final land-use decision,
we have recognized that there are other background princi-
ples of state property law that prevent the delay from being
deemed a taking. We thus noted in First English that our
discussion of temporary takings did not apply “in the case

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of normal delays in obtaining building permits, changes in
zoning ordinances, variances, and the like.” 482 U. S., at
321. We reiterated this last Term: “The right to improve
property, of course, is subject to the reasonable exercise of
state authority, including the enforcement of valid zoning
and land-use restrictions.” Palazzolo v. Rhode Island, 533
U. S. 606, 627 (2001). Zoning regulations existed as far back
as colonial Boston, see Treanor, The Original Understanding
of the Takings Clause and the Political Process, 95 Colum.
L. Rev. 782, 789 (1995), and New York City enacted the first
comprehensive zoning ordinance in 1916, see 1 Anderson’s
American Law of Zoning § 3.07, p. 92 (K. Young rev. 4th ed.
1995). Thus, the short-term delays attendant to zoning and
permit regimes are a longstanding feature of state property
law and part of a landowner’s reasonable investment-backed
expectations. See Lucas, supra, at 1034 (Kennedy, J., con-
curring in judgment).
But a moratorium prohibiting all economic use for a period
of six years is not one of the longstanding, implied limitations
of state property law.4 Moratoria are “interim controls on
the use of land that seek to maintain the status quo with
respect to land development in an area by either ‘freezing’
existing land uses or by allowing the issuance of build-
ing permits for only certain land uses that would not be
inconsistent with a contemplated zoning plan or zoning
change.” 1 E. Ziegler, Rathkopf ’s The Law of Zoning and
4 Six years is not a “cutoff point,” ante, at 338, n. 34; it is the length
involved in this case. And the “explanation” for the conclusion that there
is a taking in this case is the fact that a 6-year moratorium far exceeds
any moratorium authorized under background principles of state property
law. See infra, at 353–354. This case does not require us to undertake
a more exacting study of state property law and discern exactly how long
a moratorium must last before it no longer can be considered an im-
plied limitation of property ownership (assuming, that is, that a mora-
torium on all development is a background principle of state property law,
see infra, at 353).

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Planning § 13:3, p. 13–6 (4th ed. 2001). Typical moratoria
thus prohibit only certain categories of development, such
as fast-food restaurants, see Schafer v. New Orleans, 743 F.
2d 1086 (CA5 1984), or adult businesses, see Renton v. Play-
time Theatres, Inc., 475 U. S. 41 (1986), or all commercial
development, see Arnold Bernhard & Co. v. Planning &
Zoning Comm’n, 194 Conn. 152, 479 A. 2d 801 (1984). Such
moratoria do not implicate Lucas because they do not de-
prive landowners of all economically beneficial use of their
land. As for moratoria that prohibit all development, these
do not have the lineage of permit and zoning requirements
and thus it is less certain that property is acquired under
the “implied limitation” of a moratorium prohibiting all de-
velopment. Moreover, unlike a permit system in which it is
expected that a project will be approved so long as certain
conditions are satisfied, a moratorium that prohibits all uses
is by definition contemplating a new land-use plan that would
prohibit all uses.
But this case does not require us to decide as a categorical
matter whether moratoria prohibiting all economic use are
an implied limitation of state property law, because the
duration of this “moratorium” far exceeds that of ordinary
moratoria. As the Court recognizes, ante, at 342, n. 37,
state statutes authorizing the issuance of moratoria often
limit the moratoria’s duration. California, where much of
the land at issue in this case is located, provides that a mora-
torium “shall be of no further force and effect 45 days from
its date of adoption,” and caps extension of the moratorium
so that the total duration cannot exceed two years. Cal.
Govt. Code Ann. § 65858(a) (West Supp. 2002); see also Minn.
Stat. § 462.355, subd. 4 (2000) (limiting moratoria to 18
months, with one permissible extension, for a total of two
years). Another State limits moratoria to 120 days, with
the possibility of a single 6-month extension. Ore. Rev.
Stat. Ann. § 197.520(4) (1997). Others limit moratoria to six

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354 TAHOE-SIERRA PRESERVATION COUNCIL, INC. v.
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Rehnquist, C. J., dissenting
months without any possibility of an extension. See Colo.
Rev. Stat. § 30–28–121 (2001); N. J. Stat. Ann. § 40:55D–90(b)
(1991).5 Indeed, it has long been understood that moratoria
on development exceeding these short time periods are not
a legitimate planning device. See, e. g., Holdsworth v.
Hague, 9 N. J. Misc. 715, 155 A. 892 (1931).
Resolution 83–21 reflected this understanding of the lim-
ited duration of moratoria in initially limiting the morato-
rium in this case to 90 days. But what resulted—a “mora-
torium” lasting nearly six years—bears no resemblance to
the short-term nature of traditional moratoria as understood
from these background examples of state property law.
Because the prohibition on development of nearly six
years in this case cannot be said to resemble any “implied
limitation” of state property law, it is a taking that re-
quires compensation.
* * *
Lake Tahoe is a national treasure, and I do not doubt that
respondent’s efforts at preventing further degradation of the
lake were made in good faith in furtherance of the public
interest. But, as is the case with most governmental action
that furthers the public interest, the Constitution requires
that the costs and burdens be borne by the public at large,
not by a few targeted citizens. Justice Holmes’ admonition
of 80 years ago again rings true: “We are in danger of for-
getting that a strong public desire to improve the public
condition is not enough to warrant achieving the desire by
a shorter cut than the constitutional way of paying for the
change.” Mahon, 260 U. S., at 416.
5 These are just some examples of the state laws limiting the dura-
tion of moratoria. There are others. See, e. g., Utah Code Ann. §§ 17–27–
404(3)(b)(i)–(ii) (1995) (temporary prohibitions on development “may not
exceed six months in duration,” with the possibility of extensions for
no more than “two additional six-month periods”). See also ante, at 337,
n. 31.

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355 Cite as: 535 U. S. 302 (2002)
Thomas, J., dissenting
Justice Thomas, with whom Justice Scalia joins,
dissenting.
I join The Chief Justice’s dissent. I write separately
to address the majority’s conclusion that the temporary
moratorium at issue here was not a taking because it was
not a “taking of ‘the parcel as a whole.’ ” Ante, at 332.
While this questionable rule* has been applied to various
alleged regulatory takings, it was, in my view, rejected in
the context of temporal deprivations of property by First
English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U. S. 304, 318 (1987), which held
that temporary and permanent takings “are not different
in kind” when a landowner is deprived of all beneficial use
of his land. I had thought that First English put to rest
the notion that the “relevant denominator” is land’s infinite
life. Consequently, a regulation effecting a total depriva-
tion of the use of a so-called “temporal slice” of property
is compensable under the Takings Clause unless background
principles of state property law prevent it from being
deemed a taking; “total deprivation of use is, from the land-
owner’s point of view, the equivalent of a physical appro-
priation.” Lucas v. South Carolina Coastal Council, 505
U. S. 1003, 1017 (1992).
A taking is exactly what occurred in this case. No one
seriously doubts that the land-use regulations at issue ren-
dered petitioners’ land unsusceptible of any economically
beneficial use. This was true at the inception of the mora-
*The majority’s 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, 1017, n. 7 (1992) (recognizing that “uncertainty
regarding the composition of the denominator in [the Court’s] ‘deprivation’
fraction has produced inconsistent pronouncements by the Court,” and
that the relevant calculus is a “difficult question”).

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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 resi-
dences on land upon which such construction was authorized
when purchased. The Court assures them that “a tempo-
rary 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” mora-
torium 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.