Tahoe land case heads to the Supreme Court | SierraSun.com

Tahoe land case heads to the Supreme Court

The U. S. Supreme Court heard arguments last week in the landmark Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency case.

Predicting the outcome of the case based on comments by Supreme Court justices is risky business. Nonetheless, your intrepid reporter will do so.

The case was filed over 17 years ago by Tahoe City attorney Larry Hoffman on behalf of 449 named plaintiffs who owned property in the Lake Tahoe basin. The plaintiffs allege that the regulations and ordinances of TRPA denied them “economically viable use” of their land, and thus constituted a “takings” under the Fifth and Fourteenth Amendments to the United States Constitution.

From April 1981 to April of 1984 the property owner/plaintiffs were essentially unable to build on their lots while TRPA put together a plan that would allow limited development in the basin but protect the Lake.

The lawsuit addresses whether the lot owners are entitled to be compensated because of the temporary freeze on development.

The trial judge, Edward Reed, spoke favorably of the efforts of the Agency to protect the decline of the Lake’s water quality:

“For what is at stake, at least in part, is the survival of Lake Tahoe, one of the wonders of the natural world. Whatever the ultimate outcome of this case, the fate of the lake deserves serious attention and thought. That, it has unquestionably received. The very tenacity with which the property owners herein have pursued their claims, supports the idea that the lake is worth fighting for E The lake is almost indescribably beautifulE Ironically, the more Lake Tahoe comes to be appreciated for its beauty, the more that beauty is threatened.”

Judge Reed ruled for the property owners, but as TRPA attorney John Marshall told me at the time, “We are in round 6 of I don’t know how many rounds.”

Well, this is the final round, and when the Supreme Court issues its opinion, someone will be down for the count. If it is the property owners, they will have been asked to shoulder an unreasonable burden for all us who enjoy Tahoe, and if TRPA takes the hit, the two state legislatures will have to finance the payoff. That will not be pretty.

The case will set the precedent for what is known as “temporary takings,” temporary delays in processing development permits. A temporary delay can be as short as a few days while the building department official processes a permit to as long as several years while an agency like TRPA develops its regulatory ordinances.

That’s the issue facing the Court, where do you draw the line? At which point does a temporary delay or interim moratorium become compensable?

As Justice Anthony Kennedy queried, “It’s a difficult decision. Let’s say the World Trade Center is to be rebuilt, with offices only, but it’s so important that the city says it needs a year to study what to do. Is that a per se taking?”

Michael Burger, representing the lot owners, responded affirmatively, adding: “If I take your car and park it in a garage for a year, you’ve lost the use of it. The owner would be expected to be compensated for the loss, even if the car were returned later.”

Oh yeah, my prediction.

I’ve never been right before, but here goes. I think the property owners will pick up the votes of Chief Justice Rehnquist and Justices Scalia and Thomas and maybe a couple of other votes, but I don’t think the Court wants to arguably topple TRPA, especially when as was noted during oral argument, the lots held their values during the temporary freeze.

I think the Court will side with TRPA on a 5 to 4 vote.

But don’t take that to the bank.

Jim Porter is an attorney with Porter /Simon, with offices in Truckee and Reno. He may be reached at porter@portersimon.com or at the firm’s web site http://www.portersimon.com

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