By Iris Richmond. After initially strongly opposing the U.S. Supreme Court's 6-3 April 24 ruling concerning moratoria in Nevada, the NAHB has reversed its position. The association no longer considers the verdict a "ringing endorsement from our highest court on the use of moratoria, as a matter of common practice, to prohibit economic growth and housing construction on a regional basis."

In Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency, the court decided that a 32-month freeze on development does not infringe on the property rights of Tahoe landowners within the zone of the moratorium. A basic reading of the court's decision, however, reveals that it does not provide carte blanche for moratoria, nor should regulators feel more emboldened to enact moratoria, says NAHB spokesman Duane Dessiderio.

Dessiderio points to six lessons on the improper use of moratoria that, he says, appear in the court's decision, all of which indicate that moratoria should be used as a land-use tool of last resort:

  • Don't single out a landowner.
  • Be sure the land freeze is a proportional response to the harm at stake.
  • Look at all the facts.
  • Examine with strict scrutiny a moratorium lasting for more than one year.
  • Note that a moratorium enacted in bad faith (when an agency is unwilling to engage in land-use planning) is invalid.
  • Understand that successive moratoria are the functional equivalent of a permanent taking and hence are unconstitutional under the Fifth Amendment.

Published in BIG BUILDER Magazine, September 2002