Attorney General: Honorable John G. Rowland, State Capitol, 2002-014 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 23, 2002

Honorable John G. Rowland
Governor
State of Connecticut
State Capitol
Hartford, CT 06106

Dear Governor Rowland:

I write to supplement my opinion dated April 17, 2002, regarding the constitutionality of House Bill No. 5346, and to notify you of a United States Supreme Court decision providing powerful and decisive support for my conclusion that the measure is constitutional.

As you may know, the United States Supreme Court today released its 6-3 decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, concluding that a 32-month moratorium on new development in the Lake Tahoe Basin did not constitute a taking of the affected landowners' property without just compensation. Slip Opinion at 39. Consequently, the Court has now affirmed the Ninth Circuit's decision on which I based some of my analysis in my April 17, 2002 opinion, and today’s decision provides further support for my conclusion that House Bill No. 5346 is constitutional.

In concluding that the Tahoe development moratorium did not constitute an unconstitutional taking, the Court refused to adopt the categorical analysis proposed by the plaintiffs, which would have found a taking any time a regulation deprives the property owner of "all economically beneficial uses" of the property, even if the deprivation had a limited duration. Slip Op. at 26. Instead, the Court emphasized that the necessary analysis requires careful examination and weighing of all the relevant circumstances. Id. at 30-31.

Among these factors, the Court stressed that the government’s ability and authority to impose a moratorium and develop a new land-use policy for a whole region is significantly greater than when it is considering preventing the development of a single parcel. Id. at 36-37. Additionally, the Court rejected the notion that a temporary moratorium was necessarily a taking because, "[o]therwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that [state or local governments] 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." Slip Op. at 35.

Finally, in upholding the moratorium, the Supreme Court emphasized the significant governmental interest in permitting land-use planners to preserve the status quo while formulating a more permanent development strategy for a precious and environmentally-sensitive public natural resource like Lake Tahoe. Long Island Sound, of course, is a unique and vital natural resource of our State and its further development should proceed only after the legislature has authored a comprehensive and permanent land-use planning scheme that ensures its preservation for years to come.

Thus, an application of these factors to House Bill No. 5346 leads to the unavoidable conclusion that the legislature’s attempt to formulate a more permanent development strategy for land owned by the State in public trust for its citizens outweighs any incremental interest of a permit or license holder such as Cross-Sound Cable Company, LLC, which has yet to begin substantial construction or development activities on our public lands.

Here, as in Tahoe- Sierra, there is only a moratorium, and therefore only a temporary regulatory action, not a permanent acquisition or deprivation of property. In this case, indeed, the property is owned by the State of Connecticut, not by private landowners seeking to develop their own fee land, making our case even more compelling. Therefore, I am even more certain that House Bill No. 5346 is constitutional.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


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