216 F.3d 764 (9th Cir. 2000), 99-15641, Tahoe-Sierra Preserv. v. Tahoe Reg'l Planning

Docket Nº:99-15641, 99-15771
Citation:216 F.3d 764
Party Name:TAHOE-SIERRA PRESERVATION COUNCIL, INC.; RICHARD A. ALLISON; ALPINE INVESTMENT COMPANY, LTD.; AMCO, INC.; JEFFREY B. ANDERSEN; BETH C. ANDERSEN; PETER J. ANDERSEN; JANET I. ANDERSEN; DONALD F. ARCHIBALD; JEAN L. ATHERTON; DAVID E. BAKER; MAXINE A. BAKER; JOHN H. BAKER; PIERINO C. BARENGO, et al., PlaintiffAppellee-Cross-Appellant, v. TAHOE REGIONAL
Case Date:June 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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216 F.3d 764 (9th Cir. 2000)

TAHOE-SIERRA PRESERVATION COUNCIL, INC.; RICHARD A. ALLISON; ALPINE INVESTMENT COMPANY, LTD.; AMCO, INC.; JEFFREY B. ANDERSEN; BETH C. ANDERSEN; PETER J. ANDERSEN; JANET I. ANDERSEN; DONALD F. ARCHIBALD; JEAN L. ATHERTON; DAVID E. BAKER; MAXINE A. BAKER; JOHN H. BAKER; PIERINO C. BARENGO, et al., PlaintiffAppellee-Cross-Appellant,

v.

TAHOE REGIONAL PLANNING AGENCY, a separate legal entity created pursuant to an interstate compact between the States of California and Nevada; the voting members of the governing body of the Tahoe Regional Planning Agency including TONY CLARK, CHESTER A. GIBBS, ALEXANDER HAAGEN, III, STAN HANSEN, THOMAS HSIEH, JAMES KING, ROBERT PRUETT, JAMES S. REED, LARRY SEVINSON, THOMAS STEWART, WILLIAM D. SWACKHAMER, PEGGY TWEDT, RONALD D. WESTERGARD and NORMAN C. WOODS; STATE OF CALIFORNIA; STATE OF NEVADA, Defendant-Appellant-Cross-Appellee.

Nos. 99-15641, 99-15771

United States Court of Appeals, Ninth Circuit

June 15, 2000

Argued and Submitted March 16, 2000

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E. Clement Shute, Jr. & Ellison Folk, Shute, Mihaly & Weinberger, San Francisco, California, for the defendant-appellant-cross-appellee.

Bill Lockyer, Attorney General of State of California, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, Daniel L. Siegel, Supervising Deputy Attorney General, Mary J. Scoonover, Deputy Attorney General, Sacramento, CA, for the defendant-appellant-cross-appellee State of California.

Frankie Sue Del Papa, Attorney General of State of Nevada, William J. Frey, Deputy Attorney General, Carson City, NV, for the defendant-appellant-cross-appellee State of Nevada.

Lawrence L. Hoffman, Hoffman Law Offices, Tahoe City, California, for the plaintiff-appellee-cross-appellant.

Rochelle Nason, League to Save Lake Tahoe, South Lake Tahoe, California, John

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D. Echeverria, Environmental Policy Project, Georgetown University Law Center, and Thomas E. Roberts, Wake Forest University School of Law, for amici curiae American Planning Association and League to Save Lake Tahoe.

Karl Manheim, Loyola Law School, Los Angeles, California, and Stephen Shane Stark & Alan L. Seltzer, County of Santa Barbara, California, for amici curiae California Cities and California State Association of Counties.

Timothy J. Dowling, Community Rights Counsel, Washington, D.C., for amici curiae International Municipal Lawyers Association.

Daniel P. Selmi, Los Angeles, California, for amici curiae Scientists.

Hardy Myers, Attorney General of Oregon, Michael D. Reynolds, Solicitor General of Oregon, and David F. Coursen, Assistant Attorney General of Oregon, Salem, Oregon, for amici curiae States of Oregon, Washington, Arizona, and Montana.

Lois J. Schiffer, Assistant Attorney General, and William Lazarus, David C. Shilton, and Peter H. Oppenheimer, United States Department of Justice, Washington, D.C., for amici curiae United States.

Appeals from the United States District Court for the District of Nevada; Edward C. Reed, Jr., District Judge, Presiding. D.C. No.CV-84-00257-ECR

Before: Henry A. Politz,[*] Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

REINHARDT, Circuit Judge:

This case involves approximately 450 plaintiffs who own property in the Lake Tahoe Basin. The lead plaintiff, Tahoe Sierra Preservation Council, Inc. (TSPC), is an association of Tahoe-area property owners. Each individual property owner has alleged, inter alia, that each of several land-use regulations enacted in the 1980's by the Tahoe Regional Planning Agency (TRPA) constituted a "taking" of his property under the Fifth and Fourteenth Amendments. The principal question on this appeal is whether a temporary planning moratorium, enacted by TRPA to halt development while a new regional land-use plan was being devised, effected a taking of each plaintiff's property under the standard set forth in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). In addition, we must determine whether any taking that may have occurred following TRPA's adoption of a regional landuse plan in 1984 was attributable to the promulgation of that plan, in light of the fact that the plan was enjoined immediately after it was enacted and was never implemented. Finally, we must decide whether the plaintiffs' claims regarding the successor regional land-use plan enacted by TRPA in 1987 -which did become effective -are time-barred.

FACTUAL BACKGROUND

Lake Tahoe is a large alpine lake located in the northern Sierra Nevada mountains. The lake is unique, both aesthetically and ecologically, because of its size, depth, and the astounding clarity of its water. Indeed, it is one of the clearest large lakes in the world. The unusual clarity of Lake Tahoe results from the fact that it historically was "oligotrophic" -that is, very low in nutrients and lacking a steep temperature gradient that would prevent deep circulation and mixing. Since mid-century, however, the lake has been undergoing "eutrophication," a process by which the nutrient loading in the lake increases dramatically, due to nitrogen and phosphorus (contained in soil) being washed into the lake. The excessive enrichment of the lake by these nutrients encourages the growth of algae. As algal growth in the

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lake increases, the lake loses its clarity and color, becoming green and opaque. In addition to destroying the water's visual perfection, the algae also depletes its oxygen content, thereby jeopardizing the survival of fish and other lake-dwelling animal life. In short, the eutrophication of the lake is causing serious, and effectively permanent, environmental damage.

The dramatic increase in Lake Tahoe's nutrient levels has been caused by the rapid development of environmentally sensitive land in the Lake Tahoe Basin. The land in the basin drains into the lake, and artificial disturbances of the land -the destruction of vegetation, the creation of impervious objects such as roads and houses, etc. -greatly increase the flow of nutrients into the lake.1 Of course, the degree to which the development of a particular parcel of land in the basin increases the nutrient flow into the lake depends on the particular characteristics of that property. In general, the development of steeper land leads to more environmental damage, because steeper land is susceptible to more rapid soil erosion. Along with steepness, other land characteristics also affect the amount of damage caused to the lake by development. For example, certain areas near streams and other wetlands, known as Stream Environment Zones (SEZs), act as filters for much of the nutrient loading that runoff carries. Disturbance of SEZ lands can lead to the rapid release of these stored nutrients into the lake. In addition, disturbance of SEZ lands may prevent them from performing their natural filtering function, thereby permitting more of the nutrients contained in runoff from higher elevations to reach the lake. Accordingly, SEZ lands are considered especially sensitive to the impact of development.

In an effort to halt the increasing rate of environmental damage to Lake Tahoe, the bi-state Tahoe Regional Planning Compact was approved in 1969 by the United States Congress after being passed by the legislatures of both Nevada and California. The Compact created the Tahoe Regional Planning Agency and set goals for the preservation of the lake and the surrounding basin. Pursuant to the Compact, TRPA adopted land-use Ordinance No. 4, which, among other things, classified the land in the basin according to its susceptibility to environmental damage. Land in the Lake Tahoe Basin was divided into seven "land capability districts, " numbered 1 through 7, with 1 being the most environmentally sensitive and 7 the least. Land capability districts 1 through 3 -consisting of the steepest land in the basin -were denominated "high hazard" or "sensitive" lands. SEZ lands were classified as a special subcategory of high hazard lands and were labeled "1b" lands. Land capability districts 4 through 7 were referred to as "low hazard" or "non-sensitive" lands.

For each land classification, Ordinance No. 4 adopted recommendations as to what degree of artificial disturbance the land could safely sustain. There were numerous exceptions to the recommendations, however, and these exceptions caused significant dissatisfaction with TRPA's regulatory scheme. This dissatisfaction, combined with evidence that the 1969 Compact was not strong enough to remedy the problems causing the decline in the basin environment, led to the amendment of the Tahoe Regional Planning Compact in 1980. 2 In addition to restructuring TRPA and its voting procedures, the 1980 Compact directed TRPA (1) to adopt "environmental threshold carrying capacities" within eighteen months of the date on which

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the Compact became effective;3 (2) to adopt a new regional plan within twelve months of the adoption of the carrying capacities; and (3) to review all projects and establish temporary restrictions on development in the basin pending the enactment of a new regional plan.

To comply with the Compact's requirement that it temporarily restrict development pending the enactment of a new regional plan, TRPA enacted Ordinance 81-5, which became effective on August 24, 1981. Among other things, the ordinance temporarily prohibited most residential and all commercial construction on both Class 1-3 and SEZ lands. The ordinance did contain some exceptions to the development moratorium, however, which permitted TRPA to approve construction of some single family homes on Class 1, 2, and 3 lots on the Nevada side of the basin. The ordinance stated that that the provisions setting forth the...

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