S & M Inv. Co. v. Tahoe Regional Planning Agency

Decision Date15 August 1990
Docket NumberNo. 89-15353,89-15353
Citation911 F.2d 324
PartiesS & M INVESTMENT CO., a California general partnership, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY, a public entity, Does I through XXX, inclusive, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John S. Warnlof, Ruta Paskevicius, Nelson, Warnlof & Vencill, San Ramon, Cal., and Gregg R. Lien, Hoffman, Lien, Faccinto & Spitzer, Tahoe City, Cal., for plaintiff-appellant.

Susan E. Scholley, Tahoe Regional Planning Agency, Zephyr Cove, Nev., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before LIVELY, * FLETCHER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Appellant, S & M Investment Company ("S & M"), contests the expiration of a development permit granted to it by the appellee, the Tahoe Regional Planning Agency ("TRPA"). S & M contends, first, that the period in which it had to commence construction under the permit was tolled because the project authorized by the permit was the subject of "legal action." Second, appellant asserts that TRPA should be estopped from contending that S & M's permit had expired because a TRPA staff member provided S & M with erroneous information concerning the expiration of the permit and the possibility of obtaining an extension. The district court, 702 F.Supp. 1471, granted TRPA's motion for summary judgment, and S & M appealed. We affirm.

I. FACTS

In 1968, California and Nevada, with congressional approval, entered into an interstate agreement to provide for the conservation of resources and control of development in the Lake Tahoe Basin. The agreement, known as the Tahoe Regional Planning Compact, created the Tahoe Regional Planning Agency and authorized the agency to develop a regional development plan. Pub.L. 91-148, 83 Stat. 360 (1969). In 1973, California created the California Tahoe Regional Planning Agency ("CTRPA") to establish and enforce stricter development controls on the California side of the Tahoe Basin. Developers building on the California side of the basin were required to obtain permits from both agencies.

On February 1, 1980, S & M received a one-year permit from CTRPA for the construction of a car dealership. Later that month, on February 27th, the company obtained an eighteen-month TRPA permit. In 1980, California and Nevada amended their interstate agreement to require TRPA to take a number of specific actions in order to protect the region's environment. Pub.L. No. 96-551, 94 Stat. 3233 (1980) (the "1980 Compact"). California also agreed to deactivate CTRPA as soon as TRPA adopted a new regional plan. Cal.Gov't Code Sec. 67131. Under the amended agreement, S & M's TRPA permit was automatically extended until December 19, 1983 (three years from the date Congress approved the 1980 Compact). 1 S & M applied for an extension of its CTRPA permit, but because CTRPA delayed and temporarily suspended action on permit extensions pending adoption of new procedures, S & M was unable to obtain one until August 7, 1981. This one-year extension was due to expire on August 7, 1982. Since the extended permit was not granted until close to the end of the 1981 building season, S & M did not begin building that year. During the 1982 season, S & M also failed to commence construction, this time apparently due to a sharp increase in building costs. Instead, in 1982 S & M sought to file a new application with CTRPA but was unable to do so because it had not obtained the local approval required under CTRPA resolutions.

During the summer of 1982, Brian Stack, S & M's general partner, went to the TRPA office to inquire about the status of his TRPA permit. S & M alleges that Stack was erroneously informed by a staff person that the permit would expire three years from the date of agency approval of the permit application, February 27, 1983 (rather than three years from the date of congressional approval of the 1980 Compact, December 19, 1983), and that there were no provisions for extensions under any circumstances. S & M took no further steps toward commencing construction and on December 19, 1983, its TRPA permit expired by operation of law. According to S & M, had it been aware that its TRPA permit was effective for the 1983 construction season, it would have pursued its efforts to obtain the other requisite authorizations.

In September 1984, S & M wrote to TRPA to request a thirteen-month extension of its TRPA permit. S & M based this request on CTRPA's delay in extending the permit, CTRPA's adoption of resolutions requiring local approval prior to filing a new CTRPA application, and a September 1983 CTRPA moratorium on new project applications. S & M contended that these actions constituted "legal action" under Article VI(p) of the 1980 Compact, which tolls the three-year period for commencing construction when projects authorized by TRPA permits are the subject of such actions. TRPA refused to grant the extension, responding that "legal action" as used in the 1980 Compact means litigation, not all actions by governmental agencies. The TRPA governing board denied S & M's subsequent appeal, and S & M filed the instant action. The district court, in granting TRPA's motion for summary judgment, held, as TRPA had urged, that "legal action" as used in the 1980 Compact means litigation. The court also held that the alleged misinformation given by a TRPA staff member did not constitute a sufficient ground to estop the agency from enforcing the regular expiration date of S & M's permit.

II. DISCUSSION
A. Definition of "Legal Action"

S & M argues on appeal, as it did below, that CTRPA's adoption of resolutions and moratoria, which allegedly prevented appellant from building its car dealership, constituted "legal action," therefore tolling the period in which it was required to commence construction under its permit. We disagree. The term "legal action" as used in the 1980 Compact can only reasonably be read to mean litigation, not all lawful activities of government agencies, as appellant insists.

After establishing a three-year duration for project approvals, Article VI(p) of the 1980 Compact provides:

In computing the 3-year period any period of time during which the project is the subject of a legal action which delays or renders impossible the diligent pursuit of that project shall not be counted. Any license, permit or certificate issued by the agency which has an expiration date shall be extended by that period of time during which the project is the subject of such legal action as provided in this subdivision.

When construing a statute, we look first to the plain meaning of the language in question. Sacramento Regional County Sanitation Dist. v. Reilly, 905 F.2d 1262, 1268-1269 (9th Cir.1990). If the term at issue has a settled meaning, we must infer that the legislature meant to incorporate the established meaning, unless the statute dictates otherwise. See American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982) ("As in all cases involving statutory construction, ... we assume 'that the legislative purpose is expressed by the ordinary meaning of the words used.' ") (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962)); Black v. Commissioner of Internal Revenue, 765 F.2d 862, 864-65 (9th Cir.1985). When the plain language of the statute appears to settle the question, "we look to the legislative history to determine only whether there is 'clearly expressed legislative intention' contrary to that language." INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987) (quoting United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483 (1986), in turn quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)).

The plain meaning of the term "legal action" settles the issue before us. Black's Law Dictionary (5th ed.1979), while not defining "legal action," defines "action" as:

Conduct; behavior; something done; the condition of acting; an act or series of acts.

Term in its usual legal sense means a suit brought in a court; a formal complaint within the jurisdiction of a court of law.... It includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court.

Id. at 26. (citation omitted) (emphasis added). And, in defining the word "litigation," Black's actually uses the term "legal action," stating that litigation is:

A lawsuit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of enforcing a right or seeking a remedy....

Id. at 841. Moreover, although apparently few if any courts have ever defined "legal action," literally thousands of cases have used the term to refer to litigation. See, e.g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975) ("We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission's efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be.") (emphasis added); Boudin v. Thomas, 732 F.2d 1107, 1114 (2d Cir.1984) ("The drafters perceived legal actions as helping to formulate public policy: 'An adjudication or civil action provides a concrete, adversarial test of Government regulation and thereby insures the legitimacy and fairness of the law.' ") (quoting H.R.Rep. No. 1418, 96th Cong., 1st Sess. 10, reprinted in 1980 U.S.Code Cong. & Admin.News 4984, 4988-89) (emphasis added); Local...

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