Incline Village woman gets nod from the high court |

Incline Village woman gets nod from the high court

The U.S. Supreme Court just issued a significant decision of local and national interest. Eighty-three-year old Bernadine Suitum’s “takings” case against the Tahoe Regional Planning Agency (TRPA) is ready or “ripe” for judicial review. After years of courtroom battles, Mrs. Suitum is entitled to go to court.

The decision was hailed as a victory by private property advocates as well as supporters of TRPA. The “spin doctors” work the legal circuit as well as the political arena.

The Supreme Court unanimously decided that Mrs. Suitum is entitled to sue TRPA for depriving her of the use of her property without just compensation.

Three justices believed Mrs. Suitum not only should have been allowed to argue her case in the lower federal court, they issued a concurring opinion that TRPA had “taken” Mrs. Suitum’s property without full compensation, i.e. it was a “taking” when TRPA determined she could not build on her lot.

Years ago, TRPA determined Mrs. Suitum was not entitled to build on her vacant parcel in Incline Village because it is in a sensitive Stream Environment Zone. TRPA, however, administers a transfer of development rights program that entitles Mrs. Suitum to sell her limited development rights to a third party.

The question before the Court was whether Mrs. Suitum was required to sell those development rights before she was entitled to challenge the Agency’s regulatory scheme. All nine justices ruled in her favor.

The three-justice concurring opinion described TRPA’s marketable transfer of development rights program as “a peculiar type of chit a clever, albeit transparent, device that seeks to take advantage of a peculiarity of our takings clause jurisprudence: whereas once there is a taking, the Constitution requires just (i.e. full) compensation.”

In short, Mrs. Suitum has three of the five votes she needs to prove there has been a “taking” of her property. The other justices did not rule on the “takings” issue, determining only that Mrs. Suitum’s case was ready to be heard by the lower court, which will likely hear evidence of the value of the development rights granted to her by TRPA.

The three concurring justices, while they expressed guarded approval of the concept of transfer of development rights, concluded that the value of the development rights must be equal to the market value of Mrs. Suitum’s lot. Indications are that such is not the case. The majority did not express such a view.

Municipalities around the country are breathing a sigh of relief that transfer of development rights survived the court’s muster as a land use planning tool.

While the majority opinion was united that Mrs. Suitum had processed her building application with TRPA far enough to challenge the agency’s final determination, it gave little clue as to whether it would uphold or invalidate the Agency’s transfer of development rights program or find a compensable “taking.” It is back to the federal district court – back to the beginning.

Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is also a mediator.

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