Carpenter v. Tahoe Regional Planning Agency
| Decision Date | 31 August 1992 |
| Docket Number | No. CV-N-90-115-ECR.,CV-N-90-115-ECR. |
| Citation | 804 F. Supp. 1316 |
| Parties | Alice W. CARPENTER, Plaintiff, v. TAHOE REGIONAL PLANNING AGENCY, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
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Randall M. Faccinto, Hoffman, Lien & Faccinto, Tahoe City, Cal., for plaintiff.
Gary A. Owen, J. Thomas Susich, Crowell, Susich, Owen & Tackes, Carson City, Nev., for defendants.
Before the court is Defendant Tahoe Regional Planning Agency's ("TRPA's") motion for summary judgment (document # 14). The motion was renewed pursuant to court order by Defendant's renewed motion for summary judgment (document # 31). The court has also read and considered Plaintiff's oppositions to the motions (documents # 23 & # 35) and heard oral argument on the motion for summary judgment on August 25, 1992. Additionally, the court invited supplemental briefs from the parties pursuant to its Minute Order of April 14, 1992 (document # 37) and the parties have since offered the same (see documents # 38, # 39 & # 41).1 This matter is now ripe for the court's decision.
This court has had many opportunities to outline the history and significance of the Tahoe Regional Planning Agency, the 1969 Compact that created TRPA, and the subsequent compact and Regional Plans promulgated by TRPA.2 The court needs not set out that history again here in detail. However, a brief chronology and statement of facts will help the reader understand the discussion contained in this order.
TRPA was created in 1969 pursuant to the Tahoe Regional Planning Compact adopted by the states of California and Nevada under the authority of Congress (the "1969 Compact"). Pub.L. No. 91-148, 83 Stat. 360 (1969); Cal.Gov't Code §§ 66800-66801; NRS §§ 277.190-277.200. The 1969 Compact authorized TRPA to coordinate regional planning for the Lake Tahoe Basin area. However, after TRPA determined that the 1969 Compact was inadequate to protect the region from environmental harm, the two states agreed to a new compact in 1980 (the "1980 Compact"). Pub.L. 96-551, 94 Stat. 3233 (1980). The new compact attempted to establish "environmental carrying capacities" while providing for orderly and environmentally safe growth.
The 1980 Compact included Ordinance 81-5, an attempt, according to TRPA, to rescue the basin from pollution, over-development, and the loss of environmentally high-risk lands to development. At the time, thousands of undeveloped, single-family residential lots existed in the basin. Ordinance 81-5 created a case-by-case review process through which land owners were required to navigate in order to receive single-family dwelling building permits. TRPA wished to keep the level of approved construction sites at a number that the Agency considered to be environmentally safe for the region.
Plaintiff had purchased her land in 1973 but did not record the deed until 1980. It was not until 1981 that Plaintiff decided that she wished to build a home on the land. By then, Ord. 81-5 and the entire 1980 Compact were in effect. On May 3, 1982, Plaintiff therefore submitted an application for a building permit for a single-family dwelling pursuant to the case-by-case review system established under Ord. 81-5.
On August 26, 1983 the TRPA governing board temporarily suspended issuance of all permits for all projects including those which could be approved under Ord. 81-5. Believing that the board did not have the legal authority to permit any development in the Basin prior to the adoption of a regional plan under the 1980 Compact, TRPA decided to place a moratorium on new development permits. The board provided that once the moratorium was lifted, those permits pending at the time of the moratorium would be given first priority.
In 1984 TRPA passed its 1984 Regional Plan ("1984 Plan"). The 1984 Plan provided for construction of only 75 residences per year on the Nevada side of the Basin on Land Capability District 1, 2 and 3 lots — the three most environmentally sensitive classifications.3 However, the 1984 Plan also provided that those applications pending prior to the eight month moratorium would be considered first. The 1984 Plan also created a single-family residential lot evaluation system and prescribed an elaborate system of transfer of development rights to environmentally sensitive parcels like Plaintiff's. It also allowed land holders to challenge their land capability classifications.
The 1984 Plan never took effect. The day that it was adopted the Attorney General of California filed suit alleging that the 1984 Plan violated the 1980 Compact. The suit requested a temporary restraining order and preliminary injunction to prohibit enforcement of the 1984 Plan. The United States District Court for the Eastern District of California issued the restraining order and subsequently the injunction and prohibited TRPA from granting any development or building permit. Eventually the preliminary injunction was lifted on July 15, 1987 when the two parties to the suit agreed to a settlement which eventually became TRPA's 1987 Regional Plan ("1987 Plan").
Among other things, the 1987 Plan included the following elements:
(a) Plan Area Statements — TRPA created a system of permissible land use maps (i.e. zoning maps) called Plan Area Statements or "PAS's". PAS No. 040 entitled "Incline Village # 1" included Plaintiff's lot and prescribes a residential land use classification denoting single-family dwellings. However, this did not mean that all land owners within PAS No. 040 could build single-family dwellings at their pleasure. A rating and review system for building permit priority was instituted called:
(b) The Individual Parcel Evaluation System ("IPES") — IPES, implemented through Ch. 37 of the TRPA Code of Ordinances, attempted to first scientifically channel development to the areas most suitable for it in accordance with the environmental threshold carrying capacities established by TRPA. IPES required TRPA to rank all vacant residential parcels in the basin in accordance with scientific environmental criteria, such as erosion hazard, run-off potential, degree of difficulty of access to the construction site, etc.
After evaluation, TRPA assigned a numerical score to each parcel to determine its priority for development. Under the 1987 Plan, top-ranked parcels would be allowed to seek building permits while others would have to wait until their numerical level was reached. Initial top-ranking parcels were those that scored 725 or above. The Plaintiff's parcel scored 543. Although a procedure for challenging an owner's score was instituted, Plaintiff never pursued that option.
(c) Transfers of Development Rights — The 1987 Plan also provided for an elaborate system of transfers of development rights. Transfer development rights operate by allowing a landowner to receive density credits for development proposals in redirection areas or areas designated for transferring development potential from sensitive lands.4 Plaintiff made no attempt to participate in this program.
(d) Land Capability Classification Verification and Challenge— The 1987 Plan also allowed land owners to challenge their land capability ratings and request field inspections and reports. The Plaintiff did not do this.
(e) Plan Amendment— The 1980 Compact allows property owners to request amendments to any regional plan and requires the TRPA board to act on such a request for amendment within 180 days. 1980 Compact, Art. V(a). Plaintiff made no attempt to request a plan amendment.
On June 25, 1990, during the pendency of this suit, Plaintiff sold her lot to the State of Nevada for $185,0005 as part of the state's "buy-out" program of environmentally sensitive Lake Tahoe area property. Plaintiff admits that she received an economic benefit but argues that she did not receive "just compensation" for her land. She argues that the land would have been worth much more than what she sold it for had it been granted a building permit and that the actions, ordinances, and rules of TRPA facially, and as applied to her, caused a taking of her property without just compensation in violation of the Fifth Amendment. She also alleges a substantive due process claim, an equal protection claim, and violations of the Nevada state constitution.6
Defendant TRPA's motion for summary judgment makes the following arguments: (1) Plaintiff's sale of her property in 1990 makes this case moot, deprives the court of jurisdiction to hear the case as there is no case or controversy, and deprives Plaintiff of standing; (2) Plaintiff's sale of her property to the State of Nevada constituted a waiver of her claims; (3) Plaintiff's claims are not ripe for adjudication; (4) even on the merits, Plaintiff's takings claim fails; (5) on the merits, Plaintiff's substantive due process claim fails; and (6) on the merits, Plaintiff's equal protection claim fails.
For the reasons discussed below, the court grants TRPA's motion for summary judgment on some claims and denies it as to others.
Defendant claims that since Plaintiff sold her lot in 1990 there is no case or controversy before this court. TRPA argues that since Plaintiff has already made a profit on the sale of the property there is no actual injury traceable to the defendant. Defendant's argument, however, fails to take into account two important points. First, since Plaintiff's taking claim can best be characterized as a "temporary taking," she properly seeks damages that occurred during a finite time prior to the sale. Second, Defendant fails to differentiate between mootness and causation.
In Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 911 F.2d 1331 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991) hereinafter TSPC I, the Ninth...
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