Brown v. Tahoe Regional Planning Agency

• Decision Date: 23 May 1973
• Docket Number: Civ. No. R-2773.
• Citation: 385 F. Supp. 1128
• Parties: George H. BROWN et al., Plaintiffs, v. TAHOE REGIONAL PLANNING AGENCY, a political subdivision of the States of Nevada and California, Defendants.
• Court: U.S. District Court — District of Nevada

385 F. Supp. 1128

George H. BROWN et al., Plaintiffs, v. TAHOE REGIONAL PLANNING AGENCY, a political subdivision of the States of Nevada and California, Defendants.

Civ. No. R-2773.

United States District Court, D. Nevada.

May 23, 1973.

Charles E. Springer, Reno, Nev., for plaintiffs.

Richard R. Hanna, South Lake Tahoe, Cal., for defendants.

ORDER DENYING MOTION TO DISMISS FIRST AMENDED COMPLAINT

BRUCE R. THOMPSON, District Judge.

This action was instituted by plaintiffs to obtain a declaration of rights with respect to the impact of the Land Use Ordinance adopted February 10, 1972 by the Tahoe Regional Planning Agency. The latter is a political subdivision of the States of California and Nevada created pursuant to an interstate compact, the Tahoe Regional Planning Compact, which was adopted and approved by the Congress of the United States. Public Law 91-148, December 18, 1969, 83 Stat. 360.

The action was instituted in the First Judicial District Court of the State of Nevada, in and for the County of Douglas. It was filed as a class action. An order for maintenance of a class action was promptly made by the State Court. The class was defined as "those persons who own or have other interest in real estate or who are lenders, mortgagees or trust beneficiaries in connection with real estate located in Douglas County, Carson City, and Washoe County, Nevada, and in the Lake Tahoe `Region,' as defined in Article 2 of the Tahoe Regional Planning Compact, NRS 277.190-277.220, inclusive."

Notice of class action was given. Some landowners, responsive to the notice, have filed Requests for Exclusion; others have filed an Entry of Appearance.

The action was removed to this Court and a Motion to Remand has been denied. The jurisdiction of the Court is predicated on 28 U.S.C. § 1331. The case arises under the Constitution and laws of the United States, involving the interpretation and application of Public Law 91-148 and of the Fifth Amendment to the Constitution of the United States. The file is deficient with respect to an allegation of the jurisdictional amount, but the Court can take judicial notice that the amount in controversy easily exceeds the sum or value of $10,000, exclusive of interest and costs, so the pleading deficiency is of no moment. The class action is one where all members of the class unite to enforce a single title or right in which they have a common and individual interest. Their claims can be aggregated. Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916); Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969).

Plaintiffs' prime contention is that the land use ordinance, as applied to their lands in the Lake Tahoe Basin, is so restrictive as to make the land unavailable to plaintiffs for any personal, private beneficial use and that the Ordinance is, in effect, a dedication of the lands to the public for use as parks, forest or general recreational areas.

The two most restrictive classifications of land use provided by the Ordinance are (1) General Forest District,¹ and (2) Recreation District.²

Section 9.14, referred to in sections 7.20 and 7.30, is a limited "grandfather clause."³

The other land use districts set up by the Ordinance for the protection of Lake Tahoe and its environment are much more similar in regulatory restrictions to the urban zoning ordinances with which we are all familiar. These classifications are: Rural Estate Low Density Residential, Medium Density Residential, High Density Residential, Tourist Commercial, General Commercial, Public Service and Conservation Reserve.

While plaintiffs have not specifically so alleged, it is a fair inference from the Complaint that the lands owned by them have been classified in the General Forest District or the Recreation District. In any event, it is reasonable and practical to limit the class to landowners in the Lake Tahoe Basin whose properties have been included in one of these two districts. The class action determination heretofore made shall be amended accordingly. Rule 23(c) (1), Federal Rules of Civil Procedure.

The prayer of plaintiffs' First Amended Complaint is as follows:

"WHEREFORE, Plaintiffs pray for judgment as follows:

"1. Declaring that the land use restrictions imposed on plaintiffs' properties by the Land Use Ordinance constitutes a `taking' of such properties for public use;

"2. Declaring that such ordinance is an invalid exercise of authority beyond the legitimate police power and is unenforceable;

"3. In the alternative, declaring that public necessity warrants the restrictions imposed by the ordinance, but that the `taking' of plaintiffs' properties thereby constitutes inverse condemnation of such properties for which the plaintiffs are entitled to be justly compensated.

"4. Awarding plaintiffs such compensation as the proofs show to be just.

"5. For such other and further relief as to the Court may appear just and proper."

Relief is sought in the alternative. The action may be treated as a complaint for damages for a taking of property for public use by an agency of the States of California and Nevada. The defendant here, the Tahoe Regional Planning Agency, does not, however, under the Tahoe Regional Planning Compact which is, in effect, the constitution of the Agency, enjoy any power to tax. Article VII — Finances,⁴ of the Compact makes the Agency dependent on the Counties, together with fees, gifts and donations, for operating expenses and specifically excludes the States and their political subdivisions from liability for obligations incurred by the Agency. It is, therefore, questionable whether an effective action for just compensation will lie against this defendant.

This Complaint does, nevertheless, it seems to us, present a proper claim for declaratory relief. The Complaint alleges that claims against the Agency on account of the excessively restrictive land use classifications have been rejected. There is a substantial case or controversy made by the enactment and projected enforcement of the Land Use Ordinance. The two serious questions are (1) are the land use classifications of General Forest District and Recreation District so arbitrary and prohibitive under all the facts and circumstances as to be an invalid exercise of the police power, and (2), if the two classifications are a reasonable and proper exercise of the police power for the protection of the Lake Tahoe Basin, its ecology and environment, are they nevertheless so destructive of the value of the properties embraced in these Districts as to constitute a taking of the property for public use? United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); United States v. Kansas City Life Insurance Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950); Symonds v. Bucklin, 197 F. Supp. 682 (D.C.Md.1961).

At first blush, this Court entertained the view that the Agencies' land use classifications were either reasonable and valid or unreasonable, arbitrary and invalid, and that, regardless of the final conclusion, there could be no claim for compensation. Further study, however, with the assistance of briefs of counsel, has led to acceptance of an alternative, that is, that public welfare and necessity may reasonably require exceptionally restrictive land use classification for the protection of the public interests in the Lake Tahoe Basin, but that such valid regulations may nevertheless constitute a taking of private property for public use entitling the owner to just compensation. In United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1288 (1958), the Court was concerned with the validity of wartime regulations prohibiting the operation of gold mines. While it concluded that under all the circumstances the regulations did not constitute a taking, the Court laid out the following principles:

"Thus the WPB made a reasoned decision that, under existing circumstances, the Nation's need was such that the unrestricted use of mining equipment and manpower in gold mines was so wasteful of wartime resources that it must be temporarily suspended. Traditionally, we have treated the issue as to whether a particular governmental restriction amounted to a constitutional taking as being a question properly turning upon the particular circumstances of each case. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 , 43 S. Ct. 158, 160, 67 L.Ed. 322. In doing so, we have recognized that action in the form of regulation can so diminish the value of property as to constitute a taking. E. g., United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L. Ed. 1277; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L. Ed. 1206. However, the mere fact that the regulation deprives the property owner of the most profitable use of his property is not necessarily enough to establish the owner's right to compensation. See Mugler v. State of Kansas, 123 U.S. 623, 664, 668, 669 , 8 S.Ct. 273, 298, 300, 301, 31 L.Ed. 205. In the context of war, we have been reluctant to find that degree of regulation which, without saying so, requires compensation to be paid for resulting losses of income. E. g., Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194; Jacob Ruppert , Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Bowles v. Willingham, 321 U.S. 503 64 S.Ct. 641, 88 L.Ed. 892; and see United States v. Caltex, Inc., 344 U.S. 149 73 S.Ct. 200, 97 L.Ed. 157. The reasons are plain. War, particularly in modern times, demands the strict regulation of nearly all resources. It makes demands which otherwise would be insufferable. But wartime economic restrictions, temporary in character, are insignificant when compared to the widespread uncompensated loss of life and freedom of action which war traditionally demands."

These are problems that should be met head-on and decided as promptly as possible for the benefit...