Landmark Supreme Court case could shape future of Lake Tahoe | SierraSun.com
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Landmark Supreme Court case could shape future of Lake Tahoe

Jim Porter

The U.S. Supreme Court heard oral arguments last week in a landmark Lake Tahoe “takings” case filed by 82-year old Bernadine Suitum. It was as if Suitum answered a Hollywood casting call for “the perfect plaintiff.”

Although it is often misleading to “read” how the Supreme Court may rule based upon questions the jurists ask of the parties’ attorneys, the Supreme Court justices seemed sympathetic to Suitum and her I-can’t-build-my-dream-cabin dilemma – maybe they just liked her name.

Although two lower federal courts previously ruled in favor of TRPA and against Suitum on essentially procedural grounds – that her case was not “ripe” – ready for consideration by the courts, virtually all of the Supreme Court jurists expressed views that the case was ready for consideration.

Justice Breyer asked, “Why isn’t [Suitum’s case] ripe under any theory? She has been told, ‘you cannot build and instead, here are some pieces of paper.'” Justice Ginsberg, characteristically more likely to support TRPA than Suitum, asked, “Even if the case needs fleshing out, why is it Mrs. Suitum who should do the fleshing?”

Even if the justices overturn the lower courts and find the case ready for consideration, and observers of the hearing with whom I have spoken believe the court will do so, it isn’t clear how the court will rule on the “takings” issue.

Mrs. Suitum got the short end of the stick if you believe her allegations that she was not able to build and left only with the option of selling “transferable development rights” worth far less than the market value of her lot (a view challenged by some), but TRPA is charged with protecting pristine Lake Tahoe and has established stringent rules to accomplish that goal. The Supreme Court will determine whether those rules are fair and reasonably related to the agency’s legitimate governmental purpose.

If the court finds Suitum’s lawsuit is ready for a hearing, they may return it to the lower courts for a new trial. They could do so with little direction or they could give the lower courts guidance on whether TRPA’s transferable development rights program meets constitutional muster, or the court could go further and rule that the agency unconstitutionally took Suitum’s property without just compensation and send the case back for analysis of the amount she has been damaged.

Cities and counties around the country are hopeful the court will not reject the whole concept of transferable development rights, a common planning tool, if it is inclined to invalidate TRPA’s program. Several “Friends of the Court” briefs were filed on both sides of the case. The court’s decision will have a profound affect on land-use matters in this country, especially if it finds a “taking” or invalidates or restricts TRPA’s transferable development rights program. Other Tahoe cases, moving toward trial on similar issues, will be impacted by the court’s ruling.

The court faces a difficult task: to balance the Constitutional rights of this property owner which appear to have been seriously stepped on with the unquestioned need to protect one of the environmental jewels of the world. In the absence of more public money to pay for environmentally sensitive lots, one side will lose – fair or not, and the future of the Lake will be affected.

Jim Porter is an attorney with Porter Simon. He is also a mediator and a Commissioner on the California Fair Political Practices Commission, which regulates political candidates and elected officials.


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