Suitum v. Tahoe Regional Planning Agency, 94-15768
| Decision Date | 01 April 1996 |
| Docket Number | No. 94-15768,94-15768 |
| Citation | 80 F.3d 359 |
| Parties | 26 Envtl. L. Rep. 21,300, 44 Fed. R. Evid. Serv. 245, 96 Cal. Daily Op. Serv. 2229, 96 Daily Journal D.A.R. 3723 Bernadine SUITUM, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William Patterson Cashill, Reno, Nevada, for plaintiff-appellant.
J. Thomas Susich, Vicki E. Hartigan, Crowell, Susich, Owen & Tackes, Carson City, Nevada, for defendant-appellee.
Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding; D.C. No. CV-91-040-ECR.
Before: SCHROEDER and ALARCON, Circuit Judges, and PANNER, * District Court Judge.
In this 42 U.S.C. § 1983 action, Bernadine Suitum alleges that the Tahoe Regional Planning Agency (TRPA) committed an unconstitutional taking and violated her rights to substantive due process and equal protection when it refused to permit her to build a home on her residential lot in the Lake Tahoe Basin. The district court concluded that Suitum's claims were unripe and granted summary judgment to TRPA. We affirm.
TRPA was created in 1969 by the Tahoe Regional Planning Compact. Pub.L. 91-148, 83 Stat. 360; Cal Gov't Code § 66801; Nev.Rev.Stat. § 277.200 (1969 Compact); amended, Pub.L. 96-51, 94 Stat. 3233; Cal Gov't Code § 66801; Nev.Rev.Stat. § 277.200 (1980 Compact). We have previously detailed TRPA's background and it need not be repeated here. See, e.g., People of Calif. v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1310-1312 (9th Cir.), amended, 775 F.2d 998 (9th Cir.1985).
The 1987 Plan, drafted pursuant to the 1980 Compact, governs development of Suitum's The 1987 Plan also creates Stream Environment Zones (SEZs) which generally convey surface water from upland areas into Lake Tahoe and its tributaries. The 1987 Plan allows no new land coverage or other permanent land disturbance within SEZs, except for certain limited public uses.
property and includes the Individual Parcel Evaluation System (IPES) under which TRPA assigns a numerical score to a residential lot depending on its relative environmental suitability for development. See Carpenter v. Tahoe Regional Planning Agency, 804 F.Supp. 1316, 1320 (D.Nev.1992)(listing relevant environmental criteria). TRPA annually establishes a numerical IPES level enabling owners of parcels with IPES scores above the stated level to seek building permits. Owners of parcels with IPES scores below that level may proceed with development only if the level is lowered. Id
Finally, the 1987 Plan establishes four criteria that the property owner must meet before building a single-family residence: (1) an IPES score above the numerical level established for development in that calendar year; (2) a residential development right; (3) adequate land coverage; and (4) a residential allocation.
The Transfer of Development Rights (TDR) program is "an elaborate system of transfers of development rights[,]" id., which allows for transfers of land coverage, residential development rights, and residential allocations. A property owner may transfer land coverage to a receiving parcel within the same hydrologic zone allowing for construction of a larger project on the receiving parcel. For property within a SEZ, the property owner is allowed to transfer one percent of the total property area. For example, Suitum's property is approximately 18,300 square feet. Because it is located in a SEZ, she is allotted 183 square feet of land coverage to transfer to another parcel.
Subject to county approval and the use and density eligibility of the receiving parcel, residential development rights may be transferred anywhere in the Lake Tahoe Basin. Property owners may transfer a residential allocation from a parcel with a low IPES score to any parcel with an IPES score above the annual IPES level.
Suitum purchased the property in 1972 and first attempted development of the lot in 1989 when she obtained a residential allocation from Washoe County for the construction of a house. After a field verification, TRPA initially determined that the property was entirely located in a SEZ and then assigned it a zero IPES score. Suitum appealed. TRPA upheld the IPES score on the basis that the lot was located in a SEZ.
Suitum has one residential development right and 183 square feet of land coverage available to transfer. Although she obtained a residential allocation in 1989, she did not use it that year and it reverted back to the county. Suitum has not applied for another residential allocation. Suitum has not applied to transfer her residential development right or available land coverage under the TDR program.
A grant of summary judgment is reviewed de novo. Han v. Mobil Oil Corp., 73 F.3d 872, 874 (9th Cir. 1995). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). Id. at 875. We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.
A regulatory taking in violation of the Fifth Amendment, such as that alleged by Suitum, occurs if the regulation "denies an owner economically viable use of his land." Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 473 (9th Cir.1994). "[T]he term 'economically viable use' has yet to be defined with much precision." Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 616 (9th Cir.1993). However, "the existence of permissible uses generally determines whether a development restriction denies a property holder the economically viable use of its property." Id. The regulation's economic impact and the extent to which it interferes with investment-backed expectations are relevant to the inquiry. Penn Cent. Transport Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). In sum, "determining whether a regulatory action effects a taking requires complex factual assessments of the purposes and economic effects of government actions[.]" Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 685 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 924, 127 L.Ed.2d 217 (1994).
An "as applied" challenge is "a claim that the particular impact of a government action on a specific piece of property requires the payment of just compensation." Carson Harbor, 37 F.3d at 474. We have previously noted that there are "two independent hurdles to the filing of a [regulatory] taking claim in federal court against a state or local government." Id. (citing Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985)). Only the first, known as the "final decision requirement," is at issue in this case and it requires Suitum to show that before filing suit, she sought a "final decision from [TRPA] regarding the application of the regulation to the property at issue." Carson Harbor, 37 F.3d at 474. 1
We recently explained that finality "helps the court evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation." Dodd v. Hood River County, 59 F.3d 852, 858 (9th Cir.1995). The court cannot "determine whether a regulation has gone 'too far' unless it knows how far the regulation goes." Kinzli, 818 F.2d at 1453 (quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986)).
We have not previously discussed the effect of a transfer of development rights on a regulatory taking claim. However, Judge Fletcher has made clear, in dicta, that she would require pursuit of transfer of development rights before a regulatory taking claim against TRPA could be considered ripe. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 911 F.2d 1331, 1344 n. 3 (9th Cir.1990)(Fletcher, J. concurring), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991). As explained below, we agree with Judge Fletcher, and the district court, and conclude that Suitum must apply for the transfer of her development rights through the TDR program before her claim is ripe.
Without an application for the transfer of development rights, TRPA is foreclosed from determining the extent of the use of Suitum's property. Dodd, 59 F.3d at 858. By failing to apply to the TDR program, Suitum denies TRPA the ability to grant a "different form[ ] of relief ... which might abate the alleged taking." Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir.), cert. denied, 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333 (1990).
Without pursuit of the transfer of development rights, we cannot know whether the regulations have gone too far because at this point, no one knows how far the regulations have gone. MacDonald, 477 U.S. at 348, 106 S.Ct. at 2565. Without attempting to transfer the rights she currently possesses, Suitum cannot know the "nature and extent of permitted development[,]" Kinzli, 818 F.2d at 1453, and thus cannot know the regulations' full economic impact or the degree of their interference with her reasonable investment-backed expectations, two critical components of a regulatory taking claim analysis. Youpee v. Babbitt, 67 F.3d 194, 197 (9th Cir.1995).
Although in the more typical scenario a plaintiff may face a municipal planning board which reviews modified development plans or requests for variances, here, the TDR program effects the same purpose: facilitating alternative uses of the...
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