482 U.S. 304 (1987), argued 14 Jan. 1987, decided 9 June 1987 by vote of 6 to 3; Rehnquist for the Court, Stevens in dissent. First Lutheran is the Supreme Court's landmark pronouncement that a land-use regulation can amount to a taking of property, with compensation therefore due the owner, even if the regulation is withdrawn upon a successful judicial challenge. The First English Evangelical Church owned buildings that were destroyed by a flood. After the flood a new county ordinance prohibited all construction in a flood plain area that included the church's land. California courts decided that the church could seek compensatory damages for the alleged taking only if (1) the ordinance was first declared an unlawful taking, and (2) the county then chose not to rescind the ordinance. The Court, in effect, reversed the second component of this state court ruling. The justices announced that invalidation and withdrawal of an excessive ordinance are not adequate remedies; the local government must, in addition, pay compensation for the excessive interferences with property rights that occur prior to the date that the offending ordinance is withdrawn.
Although the Court announced that compensation is due for temporary takings, it did not explain when in the land-use regulatory process a taking occurs. Nor did the Court intimate how damages might be calculated. The Court did suggest that no taking occurs “in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like” (p. 321). Justice John Paul Stevens in dissent argued that the ruling would unduly inhibit local land-use regulatory processes because regulators, facing uncertain liability, might refrain from legitimate land-use planning. After the case was remanded, lower courts decided that the flood plain ordinance did not effect a taking.
Eric T. Freyfogle