Did a temporary Long Island Sound cable moratorium unconstitutionally take a permit holder’s property?

Plain-English summary

In April 2002, Connecticut’s AG supplemented an earlier opinion about House Bill No. 5346, a proposed temporary moratorium affecting development in Long Island Sound. A U.S. Supreme Court decision released that day had upheld a regional development moratorium against a takings challenge. The AG said that decision strengthened his conclusion that the Connecticut measure was constitutional.

The Court had rejected the idea that every temporary bar on economically beneficial use automatically required compensation. The AG applied its circumstance-specific analysis to a proposal concerning state-owned public-trust land and a cable company that had not begun substantial construction. He emphasized the temporary character of the pause while lawmakers worked on a longer-term land-use plan. This letter was a supplement to his April 17 opinion, not a court judgment on the Connecticut bill.

State land-use officials at the time

The AG saw the proposed pause as serving planning for a valuable public resource. His analysis concerned a temporary measure, not permanent acquisition of private land.

Cable permit holders at the time

The AG concluded that the proposed moratorium outweighed the incremental interest he attributed to a license or permit holder that had not substantially developed the state-owned land. He did not decide a later lawsuit involving different facts.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the Supreme Court say every temporary development moratorium is a taking?
A: No. The AG cited its rejection of a categorical rule and its call to examine all relevant circumstances.

Q: Was the Connecticut cable bill already upheld by a court?
A: This was the AG’s constitutional assessment of a proposed measure. He relied on a separate Supreme Court decision about the Lake Tahoe moratorium.

Q: Why did the AG consider state ownership relevant?
A: He contrasted the proposed use of state-owned public-trust land with the Lake Tahoe case’s restrictions on privately owned land and viewed Connecticut’s case as stronger.

Background and statutory framework

The letter updated an April 17 opinion after the Supreme Court decided Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. The AG highlighted the Court’s treatment of temporary moratoria, regional planning and the need for time to develop a lasting land-use policy. He applied those factors to Long Island Sound and the pending cable bill.

Citations and references

Case: Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2002-formal-opinions/honorable-john-g-rowland-state-capitol-2002014-formal-opinion-attorney-general-of-connecticut

Original opinion text

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