Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

• Decision Date: 27 August 1990
• Docket Number: No. 86-2266,TAHOE-SIERRA,86-2266
• Citation: 911 F.2d 1331
• Parties: PRESERVATION COUNCIL, INC., a California nonprofit corporation and membership organization, Plaintiffs-Appellants, v. TAHOE REGIONAL PLANNING AGENCY, a separate legal entity created pursuant to an interstate Compact between the States of California and Nevada, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1331

911 F.2d 1331

TAHOE-SIERRA PRESERVATION COUNCIL, INC., a California

nonprofit corporation and membership organization, Plaintiffs-Appellants, v. TAHOE REGIONAL PLANNING AGENCY, a separate legal entity

created pursuant to an interstate Compact between

the States of California and Nevada, et

al., Defendants-Appellees.

No. 86-2266.

United States Court of Appeals, Ninth Circuit.

Argued June 10, 1987.

Submission Withdrawn July 16, 1987.

Resubmitted May 18, 1989.

Decided Aug. 9, 1990.

Amended Aug. 27, 1990.

Lawrence L. Hoffman, Hoffman, Lien, Faccinto & Spitzer, Tahoe City, Cal., for plaintiffs-appellants.

Gary A. Owen, Crowell, Susich, Owen & Tackes, Carson City, Nev., Marta Adams, Deputy Atty. Gen., Carson City, Nev., and Richard M. Frank, Deputy Atty. Gen., Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before FLETCHER, REINHARDT and KOZINSKI, Circuit Judges.

PER CURIAM:

We consider whether the plaintiffs' fifth and fourteenth amendment challenges to the defendants' 1984 Regional Plan have been rendered moot by the defendants' revocation of the challenged plan and its replacement with a substantially different one. We also consider whether the plaintiffs' claims are ripe for adjudication in federal court.

I. Facts

This case involves a challenge by 365 property owners on the Nevada side of the Lake Tahoe basin who claim that the ban on development established by Tahoe Regional Planning Agency ("TRPA") ¹ Ordinance 81-5 (enacted June 25, 1981) and made permanent by the 1984 Regional Plan (enacted April 26, 1984) deprived them of all economically feasible use of their land, and also violated their right to due process and equal protection. The plaintiffs are divided into two groups: the first is composed of those who own land in areas classified as Stream Environment Zones (the "SEZ plaintiffs"); the second of those who own land in Class 1, 2, and 3 areas (the "Class 1, 2, and 3 plaintiffs"). All of the plaintiffs seek declaratory and injunctive relief as well as damages. The specific claims are as follows:

First Claim for Relief: The SEZ plaintiffs seek declaratory and injunctive relief against TRPA and the members of its governing body (the individual defendants) for violations of the due process equal protection and taking clauses. The district court granted summary judgment for defendants.

Second Claim for Relief: The SEZ plaintiffs seek damages from TRPA, Nevada, and California for violations of the taking clause. The district court dismissed as to Nevada and California on grounds of sovereign immunity and dismissed as to TRPA based on Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (9th Cir.1977), rev'd in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979).

Third Claim for Relief: The Class 1, 2, and 3 plaintiffs seek declaratory and injunctive relief against TRPA and the individual defendants for violations of the taking clause. The district court granted summary judgment for defendants on ripeness grounds.

Fourth Claim for Relief: The Class 1, 2, and 3 plaintiffs seek declaratory and injunctive relief against TRPA and the individual defendants for violations of the due process and equal protection clauses. The district court granted summary judgment for defendants.

Fifth Claim for Relief: The Class 1, 2, and 3 plaintiffs seek damages from TRPA, Nevada, and California for violations of the taking clause. The district court dismissed as to Nevada and California on grounds of sovereign immunity, and dismissed as to TRPA based on Jacobson.

Sixth Claim for Relief: All plaintiffs seek declaratory and injunctive relief, or in the alternative, damages from all defendants for deprivation of their rights to enjoy public improvements in violation of the due process, equal protection, contract, and taking clauses. The district court dismissed under Furey v. City of Sacramento, 592 F.Supp. 463 (E.D.Cal.1984).

Seventh Claim for Relief: All plaintiffs seek injunctive relief and damages under section 1983 against all defendants based on the claims alleged above. The district court dismissed the claim for damages based on sovereign immunity as to California and Nevada, and dismissed as to TRPA based on Jacobson, and granted summary judgment with respect to the remaining claims.

II. Mootness

On July 15, 1987, TRPA adopted a new Regional Plan that was markedly different from the 1984 Plan it replaced. TRPA, California, and Nevada argue that the adoption of the 1987 Plan rendered the plaintiffs' lawsuit moot, and cite cases in which challenges to regulations or statutes were rendered moot by repeal or substantial amendment of the offending provisions. See, e.g., Bunker Ltd. Partnership v. United States (In re Bunker Ltd. Partnership), 820 F.2d 308, 312-13 (9th Cir.1987); Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189-91 (9th Cir.1986); Bradley v. Judges of the Superior Court, 531 F.2d 413, 418 (9th Cir.1976).

Insofar as the plaintiffs' taking claims are concerned, the defendants' arguments are foreclosed by First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), which held that " 'temporary' takings which ... deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." Id. at 318, 107 S.Ct. at 2387. Thus, if Ordinance 81-5 or the 1984 Plan effected a taking, even for a short time, plaintiffs are entitled to just compensation for that temporary taking. Their claims for just compensation (Claims Two and Five, and portions of Claim Seven) are therefore not moot.

The defendants argue that the plaintiffs suffered no interim damages by reason of the 1984 Plan because it was enjoined before it took effect. ² However, this argument fails to show that the plaintiffs' claims are moot, for two reasons. First, it is an argument about causation. It may well be that TRPA cannot be blamed for any diminution of the value of the plaintiffs' land, but if true, that fact would show only that TRPA committed no "taking"; the plaintiffs' claims would be meritless, not moot. Second, the defendants' argument fails to address the full scope of the plaintiffs' claims. The plaintiffs claim damages dating from June 25, 1981, when Ordinance 81-5 was enacted. Even if we were to assume that all post-injunction damages were caused by the injunction rather than the Plan, the plaintiffs' claims for pre -injunction damages would be unaffected. Thus, the issuance of the preliminary injunction does not render the plaintiffs' claims moot.

Claim Six of the complaint requests compensation for assessments imposed on plaintiffs to finance public improvements that, because of the total ban on development of their lots, inured exclusively to the benefit of others. See Furey v. City of Sacramento, 780 F.2d 1448, 1455 (9th Cir.1986) (where government imposes assessment on landowner to finance construction of public improvement, "the landowner must be given the opportunity to make beneficial use of the improvement or must be refunded the amount of the assessment"). While the plaintiffs may be able to develop their lots under the 1987 Plan, and thereby take advantage of the public improvements they have financed, that fact would not foreclose the possibility that they may have suffered Furey injury by reason of the six-year moratorium on development. It is entirely possible, for example, that some of the assessments the plaintiffs paid were used to finance maintenance work or short-term projects, the benefits of which were entirely consumed during the moratorium period. Accordingly, Claim Six is not moot to the extent it seeks reimbursement for assessments paid to finance projects from which the plaintiffs could have derived no benefits even if they were to develop their property under the 1987 Plan. ³

The claims for declaratory and injunctive relief are in a different category. It would be pointless to enjoin enforcement of a regional plan that is no longer in effect; claims for such relief have been rendered moot by adoption of the 1987 Plan. It would be equally pointless to render a declaratory judgment that the 1984 Plan is "null and void," as plaintiffs ask us to do in their claims seeking declaratory relief. Accordingly, the judgment below as to Claims One, Three, and Four (which request only equitable relief) is vacated. To the extent that Claims Six and Seven involve equitable relief, they are remanded with instructions to dismiss those portions of the complaint as moot. See In re Bunker Ltd. Partnership, 820 F.2d at 311 ("[w]here intervening legislation has settled a controversy involving only injunctive or declaratory relief, the controversy has become moot").

Resolution of the mootness issue eliminates the equitable claims against all defendants, and the plaintiffs do not challenge the district court's dismissal of the claims for damages against Nevada and California. Thus, the plaintiffs are left with only the claims for damages against TRPA and the individual defendants (Claims Two and Five, and portions of Claims Six and Seven).

III. Ripeness

The defendants point to several features of the 1984 Plan that provide potential relief from the prohibition on development of the plaintiffs' lots. Relying on Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), and MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), the defendants argue that the plaintiffs' claims are not ripe because they have not sought to avail themselves of these potential administrative remedies.

To evaluate the defendants' contentions, it is necessary to keep three relevant time periods in mind. First, there is the period from ...