Jacobson v. Tahoe Regional Planning Agency
| Decision Date | 05 August 1977 |
| Docket Number | LAYTON-TAHOE,Nos. 75-2400,76-1289 and 76-1608,76-1182,s. 75-2400 |
| Parties | Nathan S. JACOBSON, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY, a political subdivision of the States of Nevada and California, the State of Nevada, and the County of Washoe, Defendants-Appellees. Melvin F. JONES, Verona M. Jones, his wife, Leo D. Wyrsch, Cora E. Wyrsch, his wife, Paul W. Gould, Lola E. Gould, his wife, Joseph Trinchero, Delores G. Trinchero, his wife, Paul Williams and Lanai Corporation, a California Corporation, Plaintiffs-Appellants, v. TAHOE REGIONAL PLANNING AGENCY (T.R.P.A.), a political subdivision of the States of Nevada and California, California Tahoe Regional Planning Agency, the State of California, Placer County and Eldorado County, Defendants-Appellees. LAKE COUNTRY ESTATES, INC., a corporation, and Country Club Estates, a partnership, Plaintiffs-Appellants, v. TAHOE REGIONAL PLANNING AGENCY, County of El Dorado, and State of California, et al., Defendants-Appellees.PROPERTIES, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY, State of California, State of Nevada, County of Placer, and United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gary A. Owen, South Lake Tahoe, Cal., E. Clement Shute, Jr., Asst. Atty. Gen., Sacramento, Cal., Reginald Littrell, Auburn, Cal., James H. Thompson, Chief Deputy Atty. Gen., Carson City, Nev., George R. Hyde, Atty. U. S. Dept. of Justice, Washington, D. C., argued, for defendants-appellees.
Gary H. Moore, of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., Richard A. Clarke, of Rockwell, Fulkerson & Barry, San Rafael, Cal., argued, for plaintiffs-appellants.
Appeals from the United States District Court for the Eastern District of California.
Before WRIGHT, GOODWIN and ANDERSON, Circuit Judges.
*
On this appeal we are once more concerned with that "centaur of legislation," 1 an offspring of both state and federal law, the Tahoe Regional Planning Compact ("Compact"). Appellants complain that zoning ordinances of the Tahoe Regional Planning Agency ("TRPA"), a separate legal entity created under the provisions of the Compact, amount to an inverse condemnation or "taking" of their lands.
Some background information is necessary for an understanding of this opinion. In 1968, California and Nevada entered into a compact to create a regional agency with powers to regulate and control development within the Lake Tahoe Basin. Cal.Gov't Code § 66800 et seq. (West Supp.1974); Nev.Rev.Stat. § 277.190 et seq. (1973). The Compact was consented to by Congress in December 1969. 3 Pub.Law 91-148, 83 Stat. 360.
The governing body of the TRPA was charged with adopting ordinances, rules, regulations and policies to effectuate a regional plan setting minimum standards for water purity, zoning, shoreline development and the like. 4 the TRPA enacted a comprehensive Land Use Ordinance ("LUO"), effective February 10, 1972, in discharge of its duties under the Compact. This LUO limited the permitted uses of certain lands within the Basin, including those owned by appellants.
Under the LUO, "use districts" were established. 5 Land belonging to appellants and previously zoned as residential, multiple residential, or commercial was rezoned as "General Forest District," 6 "Recreation District," 7 or "Conservation Reserve." 8 As a generalization, very limited residential and no tourist residential or commercial use was to be made of land zoned as one of the three districts. Among other permitted uses were these: hiking trails and campgrounds, stables, recreation camps, skiing facilities, timber growing, livestock grazing, and electrical substations. Additionally, outdoor recreation concessions and educational facilities were permitted in the Recreation District.
Appellants claim that these restrictions deprive them of "all beneficial use or development" of their land and they request injunctive, declaratory, and monetary relief. Their claims are based on the Fifth and Fourteenth Amendments to the Constitution and on the just compensation provisions of the respective state constitutions.
DETERMINING THE PROPER CAUSE OF ACTION
Before we can determine whether appellants' complaints will withstand a Fed.R.Civ.Pro. 12(b)(6) motion, we must determine Although the Compact is in essence a bi-state contract, 9 this circuit had held that congressional consent transforms the Compact into a law of the United States. League to Save Lake Tahoe v. TRPA, 507 F.2d 517, 519 (9th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975). 10 Because the Compact is a federal law, the agency functioning under its terms is operating under federal law, although it is not necessarily a federal agency. 11
under what law and what theories appellants can proceed to trial. The complaints are filled with a variety of constitutional references, state and federal, and allege actions of inverse condemnation and, more generally, of "taking."
Because it is the action of the TRPA which is the basis of these cases and because the TRPA acted under powers given it by the terms of the Compact, we are of the opinion that no cause of action has been stated under any state laws. Those causes of action grounded on the just compensation provisions of the California and Nevada state constitutions were therefore properly dismissed for failure to state a claim upon which relief can be granted.
The complaints also mentioned the due process clause of the Fourteenth Amendment which safeguards personal rights against arbitrary and oppressive state action. Thus, if the TRPA's enactment of the LUO was such an over-zealous use of its police powers as to amount to a taking of appellants' property, it might, in the proper circumstances, fall under the due process clause of the Fourteenth Amendment.
This amendment applies also to acts of political subdivisions of the state. Lowe v. Manhattan Beach City School District, 222 F.2d 258 (9th Cir. 1955) (school district); Miller v. County of Los Angeles, 341 F.2d 964 (9th Cir. 1965) (county). Whether a cause of action under the Fourteenth Amendment can be stated against the TRPA would turn on whether it is an agent or political subdivision of the state.
Because of the complex nature of the Compact and the difficulties inherent in categorizing those operating under it, the district courts did not decide whether the agency was an arm of the state. We also do not find it necessary to decide this issue.
It is not relevant in deciding whether a cause of action is stated against the states because, as discussed hereafter, the states were properly dismissed as defendants because they did not waive their Eleventh Amendment immunity from suit.
The due process clauses of the Fifth and Fourteenth Amendments are sufficiently similar for analytical purposes so that if a cause of action were stated under the Fifth Amendment, a claim under the Fourteenth would also be stated, if there were a proper defendant against whom to state it. A separate discussion of a possible Fourteenth Amendment claim is therefore not necessary for purposes of due process analysis. Thus we need not further refine the characterization of the TRPA.
We now consider the possibility of a claim under the Fifth Amendment to the Constitution. For our purposes there are two relevant clauses: the due process and the just compensation (condemnation) clauses. It is our opinion that the two, although relying on substantially the same evidence when a suit based on either is brought in the context of this factual situation, provide the bases for two separate possible causes of action.
We find that a cause of action for inverse condemnation cannot be stated against the TRPA because it lacks condemnation authority. 12 We do not find, however, that this requires dismissal of appellants causes of action. The same facts alleged by appellants do form the basis for a claim of denial of due process under the Fifth Amendment for an improper "taking" of their land. This court has stated:
The due process clause, in its procedural as opposed to its substantive aspect, guarantees plaintiffs that their liberty and property interests will not be invaded by the government except insofar as they are given an opportunity to challenge the purported justification (legal, factual, or both) of the invasion. Thus, to make out a prima facie claim that they have been denied due process, plaintiffs must establish two elements: (1) that their liberty or property interests have been invaded by the government without an opportunity to challenge that invasion, and (2) that the purported justification for the invasion is at least plausibly disputable (otherwise an opportunity to challenge that justification would be an empty formality).
Rainbow Valley Citrus Corp. v. Federal Crop Insurance Corp., 506 F.2d 467, 469 (9th Cir. 1974).
Perhaps an argument could be made that, because the TRPA is not a federal agency, it is not "the government" and therefore the Fifth Amendment is inapplicable, just as the Fourteenth Amendment is inapplicable if the TRPA is not a state agency. This reasoning, however, could lead to the untenable conclusion that the TRPA is immune from suit because of its somewhat unique status: part state and part federal but not entirely either.
We conclude that the fact that the Compact...
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