Petition for Writ of Certiorari — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

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In The

Supreme Court of the United States

October Term, 1990

TAHOE-SIERRA PRESERVATION

COUNCIL, INC., et al.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, et al.,

Respondents.

Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

LAWRENCE L. HOFFMAN

Counsel of Record

James K. Burau

HorrMan, Lien & FaccintTo

3000 N. Lake Boulevard

Post Office Box 7740

Tahoe City, California 95730

(916) 583-8542

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Jrtitn

QUESTIONS PRESENTED

This action involves a “facial takings challenge”

brought by 364 individual owners of undeveloped, sin-

gle-family homesites in the Lake Tahoe Basin. The Peti-

tioners alleged in their Complaint that by the express

provisions of the TRPA’s 1984 Regional Plan, adopted

over their vigorous protests, they were permanently pro-

hibited from any development or economically viable use

of their homesites, without compensation. The Court of

Appeals, in a divided three-judge per curiam opinion,”

held that Petitioners’ facial challenge was not “ripe” for

judicial review as the Petitioners had failed to first seek

an amendment to the newly-adopted land use enactment

before initiating this action. Thus, the questions pre-

sented for review are as follows:

(1) Whether the Court of Appeals’ decision is

in conflict with a long line of decisions of

this Court, beginning with Village of Euclid

v. Ambler Realty Co., 272 U.S. 365 (1926),

which have repeatedly held that a facial

challenge to a land use enactment is ripe

for review when the regulation becomes

effective;

(2) Whether the per curiam decision is mate-

rially at odds with the reported decisions of

* The holding of part III.A. of the per curiam opinion (App.

A, 8a-16a) at issue appears to be the view of a single judge, the

Hon. Stephen Reinhardt. Judge Betty B. Fletcher, in her special

concurrence, stated she would not have reached the issue.

App. A, 25a. Judge Alex Kozinski, in his partial dissent, took

clear exception to the holding in part III.A. of the per curiam

opinion. App. A, 28a-35a.

(3)

(4)

QUESTIONS PRESENTED - Continued

at least the First, Fourth and Eleventh Circuits which

have each recently held that a facial challenge to a

land use regulation is ripe for review on the effective

date of the regulation;

Whether the per curiam decision can be reconciled

with other recent decisions of the Ninth Circuit

which have held that a plaintiff mounting a facial

challenge to a land use enactment need not further

exhaust legislative or administrative remedies before

seeking redress in the courts;

Whether the Ninth Circuit itself has “gone too far”

in fashioning a new “ripeness bar” for facial chal-

lenges to land use enactments, mistakenly applying

principles applicabie to as-applied challenges, thereby

depriving Petitioners of meaningful access to the

courts; and

Assuming the Ninth Circuit’s new “ripeness bar”

passes muster, whether Petitioners should neverthe-

less be afforded an opportunity to show. factually

that pursuit of an amendment to the Regional Plan

would have been futile.

ili

PARTIES TO THE PROCEEDING

The lead Petitioner is the Tahoe-Sierra Preservation

Council, Inc., a California, non-profit, membership corpo-

ration. The other 364 individual Petitioners, each an

affected property owner and member of the Petitioner

Preservation Council, are listed in the caption to the

Complaint. App. F, 117a-123a. Due to the length of that

listing, reference is made here to the caption of the Com-

plaint rather than setting forth the full names of those

Petitioners. None of the corporate Petitioners is a subsid-

iary of a parent corporation.

The Respondents include the TAHOE REGIONAL

PLANNING AGENCY (“TRPA”), a separate legal entity

created pursuant to an interstate Compact between the

States of California and Nevada; the then-voting mem-

bers of the Governing Body of the TRPA, including TONY

CLARK, CHESTER A. GIBBS, ALEXANDER HAAGEN,

Ill, STAN HANSEN, THOMAS HSIEH, JAMES KING,

ROBERT PRUETT, JAMES S. REED, LARRY SEVISON,

THOMAS STEWART, WILLIAM D. SWACKHAMER,

PEGGY TWEDT, ROLAND D. WESTERGARD, and NOR-

MAN C. WOODS; the STATE OF NEVADA; and the

STATE OF CALIFORNIA.

TABLE OF CONTENTS

Page

QUESTIONS PRRBSEIU TOD ..n nc cece i

PARTIES TO THE PROCSEUING ...... 0. cence ease iii

TABLE OF CONTENTS............ wtb eee eee iv

TARO GP GURP RAR MED sok nec ccccncanetacsens vi

EU oo ie oka pa eksyesenawesscuctouns 1

Te ter ee ere rere eee 2

STATUTORY PROVISIONS INVOLVED............. 2

ye cp ge me) he ere rere re ree 3

a EPS TT TT TTL ET EE eee 3

B. Background and Proceedings Below.......... 6

REASONS FOR GRANTING THE PETITION....... 12

I. THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH, OR MISAPPLIES, WELL-

ESTABLISHED PRECEDENTS OF THIS

COURT APPLICABLE TO INITIATING LAND

USE REGULATORY “FACIAL CHAL-

LINaee «BES EPER WPRPIRED. 20. oc eee cease 12

Il. THE NINTH CIRCUIT’S DECISION IS ALSO

AT ODDS WITH RECENT DECISIONS OF AT

LEAST THE FIRST, FOURTH, AND ELEV-

ENTH CIRCUITS, AS WELL AS DECISIONS

OF EVEN THE NINTH CIRCUIT, IN CREAT-

ING SUCH A NOVEL RIPENESS BAR TO

PAARL. COPPA 55 een tenes cnscncss 20

A. Conflict With Other Circuit Decisions... 20

TABLE OF CONTENTS - Continued

B. Conflict With Other Ninth Circuit Prece-

Ill. THE MERE FACT THAT A PROPERTY

Page

OWNER HAS THE “RIGHT” TO SEEK AN

AMENDMENT TO OR REPEAL OF A LAND

USE ENACTMENT SHOULD NOT RENDER

ITS FACIAL CHALLENGE ANY LESS RIPE

CONCLUSION

APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

FOR JUDICIAL REVIEW ................... 24

eee ee ee ree eer ee en eee re 30

- Opinion of Court of Appeais..... la

- District Court Order, May 10,

a ee tart ga a banyan 36a

- District Court Order, June 6,

Co Rae rrr, era ee 53a

— Court of Appeals’ Order

Denying Rehearing, October 31,

SUCRE Sc RECESS R Ge eee nee’ 71a

- Tahoe Regional Planning

Compact — P.L. 96-551.......... 73a

APPENDIX F

- Complaint for Inverse

eee

TABLE OF AUTHORITIES

Page

Cases:

Agins v. Tiburon, 447 U.S. 255 (1980) ......... 13, 16, 21

Beacon Hill Farm Associates v. Louden County

Board of Supervisors, 875 F.2d 1081 (4th Cir.

SE 0 Ah 64. 4b 40 KASS pAdANEESARDON SS VES COCA M SRS 20-21

California v. Tahoe Regional Planning Agency, No.

Civs-84-0516-EJG (E.D. Cal. 1984) .................. 7

California v. Tahoe Regional Planning Agency, 766

Sa RE WOU a SOE A Cha ys da ekee ad eece steven 7

Crow-New Jersey 32 Ltd. v. Township of Clinton,

FA CD. Ge CO COs CUE hi ioe acacia cnsensces 22

Eide v. Sarasota Ceunty, 908 F.2d 716 (11th Cir.

SOUS 6 £5.065 405044650 WUAV RARE NA SERRE AREADS CLEARS 22

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987)

We ea RbaRecORhSSOSERSA OCS OKESAS 4, 11, 14, 16, 17, 18, 19

Fry v. City of Hayward, 701 F.Supp. 179 (N.D.

RA MOE x ab SARA RRS ECORSADaB EARNS ACRE LORSS Gan 84 22

Goldblatt v. Town of Hempstead, 369 U.S. 590

PE 650: t ddadne chee e eek ie cs aN RCRS wi KN EA oe 15

Hall v. City of Santa Barbara, 833 F.2d 1270 (9th

EIA SUOD .<0.6s0 awh oe bUce Reese eRRERDAA NNR e Gn GAS: 23

Herrington v. County of Sonoma, 834 F.2d * 488,

amended 857 F.2d 567 (9th Cir. 1988) ........... 23, 24

Hodel v. Irving, 481 U.S. 704 (1987). ..... 0.0... 14

Hodel v. Virginia Surface Mining and Reclamation

Association, 452 U.S. 264 (1981)

Vii

TABLE OF AUTHORITIES - Continued

e Page

Jacobson v. Tahoe Regional Planning Agency, 566

Be) 8. Re es reer rrr 8, 10, 12

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ..............05.. 14

Kirby Forest Industries, Inc. v. United States, 467

Ge hE 0 665.006 W 6 can bes W540 w6 44 U eS eKs 555 18

Lake Nacimiento Ranch Co. v. County of San Luis

Obisbo, 830 F.2d 977 (9th Cir. 1987) amended

BOG Fe I ooo cca WAS nen ceeS cadetecunibenes 23

League to Save Lake Tahoe v. Tahoe Regional

Planning Agency, 507 F.2d 517 (9th Cir. 1974)....... 8

Loretto v. Teleprompter Manhattan CATV Corp.,

Ge Bs A IS i 65 x6 wpe ee S ie wauneescevcawess 15

Martino v. Santa Clara Valley Water District, 703

Fe COE GUNN Se Us sah ons nesWenwencesseuncs 23

MacDonald, Sommer & Frates v. Yolo County, 477

RGes SE GUND Sk wes he's cena n cab ceene cane ces 16, 17

* San Diego Gas and Electric v. City of San Diego,

Se ee ED SN ies baci ceecanscusasivcs 19, 28-29

Smithfield Concerned Citizens v. Town of

Smithfield, 907 F.2d 239 (1st Cir. 1990)............. 20

Southern Pacific Transportation Co. v. City of '.s

Angeles, 1990 WL 205207 (9th Cir. Sept. 7,

1990), amended and refiled Dec. 4, 1990, ___

WE Reh Crate ne eta Ne MORE RA ERE SRE EKA AAA ees 24

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 9th Cir. No. 87-2096 .............. 3

Tahoe-Sierra Preservation Council v. Tahoe Regional

Planning Agency, 911 F.2d 1331 (1990)..1, 2, 10, 23-27

viii

TABLE OF AUTHORITIES - Continued

Page

Village of Euclid v. Ambler Realty Co., 272 US.

Be Ms ik xi 85 KAN KAS Kh eeaweh vee eeeee wks 12-13, 21

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172 (1985)....... 16, 17, 20

Zilber v. Town of Moraga, 692 F.Supp. 1195 (N.D.

rer ere rere ereer rrr ST Tree 16, 22

STATUTES AND COMPACTS:

BB ULBAS. BH TRUeP CIR w sso cnc ccc ncsnecncccssecses 2

Tahoe Regional Planning Compact, Pub. L. No.

96-551, 946 Stat. SESS (ISGD) ... ww wc ccc ccc eeeecneess 2

I cnc kcencaentaknvnsetesheee sens 24-25

I 5g vn tka nncessnbibaaease ean eedaneacws 6-7

Pasko chs chedeanaSiechaetantwindancssen en 7

fe eS ee eer ere eee 8

ga | eer Tree rrr Tree rr: S 3

Article VIGMAE). ... 22... ccc ccc cece eee eeeecnceens 8, 25

California Government Code §§ 65900-65963.1....... 28

California Government Code § 65950................ 28

California Government Code §§ 66800-66801 ......... 2

California Public Resources Code §§ 21100.2

ef errr rr rer. Sree rr ree Serre 28

Nevada Revised Statutes §§ 277.190-.200 ............. 2

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS:

Berger, ‘Ripeness’ Test for Land Use Cases Needs

Reform: Reconciling Leading Ninth Circuit

Decisions Is An Exercise in Futility, 11 Zoning

and Planning Law Report 57 (September

ere eer Pie ee ee ee eee

Berger, Happy Birthday, Constitution: The Supreme

Court Establishes New Ground Rules for Land-

Use Planning, 20 Urban Lawyer 735 (Summer

CER Sune aABEN SSUES CERAAET TASES STOOL TES u sien

Blaesser, Closing the Federal Courthouse Door on

Property Owners: The Ripeness and Abstention

Doctrines in Section 1983 Land Use Cases, 2

Hofstra Prop. Law Journal 73 (1988)...............

Kratovil, Land Use Takings and the Problem of

Ripeness in the United States Supreme Court

Cases, 1 B.Y.U. Journ. of Pub. L. 375 (1987) ...

Mandeleker and Blaesser, Applying the Ripeness

Doctrine in Federal Land Use Regulation,

Zoning and Planning Law Report, Vol. 11,

PO Np Rha ee ORCC LA TENS Rhee cece ccdew sae’

No.

In The

Supreme Court of the United States

October Term, 1990

TAHOE-SIERRA PRESERVATION

COUNCIL, INC., et al.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, et al.,

Respondents.

Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

The Tahoe-Sierra Preservation Council, Inc., a Cali-

fornia non-profit corporation and membership organiza-

tion, and the 364 named plaintiffs (individual property

owners) in this action, hereafter the Petitioners,

respectfully pet#tion for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINIONS BELOW

The per curiam opinion of the Court of Appeals, filed

on August 9, 1990 and amended on August 27, 1990, is

reported at 911 F.2d 1331. App. A, 1a-35a. The unreported

order of the district court entered on May 10, 1985 dis-

missing certain claims is found at App. B, 36a-52a. The

unreported order of the district court entered on June 6,

1986 granting summary judgment as to the remaining

claims is found at App. C, 53a-70a.

JURISDICTION

The matter having been argued on June 10, 1987, the

decision of the Court of Appeals was filed on August 9,

1990, and thereafter amended by that court on its own

motion on August 27, 1990 (App. A, 1a). A timely petition

for rehearing and/or suggestion for rehearing en banc

was denied on October 31, 1990. App. D, 71a. The juris-

diction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The TRPA is a separate legal entity created pursuant

to the Tahoe Pegional Planning Compact entered into

between the states of California and Nevada, as exten-

sively amended effective on December 19, 1980 (hereafter

“the Compact”). Pub.L. 96-551, 94 Stat. 3233; Cal. Gov't

Code §§ 66800-66801; Nev.Rev.Stat. §§ 277.190-.200. A

complete copy of the Compact is found at App. E,

73a-116a. The specific provisions of TRPA’s 1984 Regional

Plan at issue in this case, adopted by its ordinance effec-

tive on April 26, 1984, are set forth verbatim in the

COMPLAINT FOR INVERSE CONDEMNATION,

DENIAL OF CONSTITUTIONAL AND CIVIL RIGHTS,

DAMAGES, AND DECLARATORY AND INJUNCTIVE

RELIEF. App. F, 154a-156a and 160a-163a; also see foot-

notes 7 and 8, infra. The applicable provisions of TRPA’s

interim Ordinance No. 81-5, also at issue in this litigation,

are described in detail in the Complaint. App. F,

149a-150a.

STATEMENT OF THE CASE

A. Introduction

This case is about 364 individuals who purchased one

or more single-family lots located in established residen-

tial subdivisions on the Nevada side of the Lake Tahoe

Basin, with the expectation of one day building thereon

their retirement or vacation homes. In large measure, the

lots are 1/4 to 1/3 acre in size, are zoned only for single-

family residences, are in neighborhoods in which many

homes already have been built, and are served by paved

roads, sewers, water service, and other utilities.

Following a lengthy and often contentious land use

process initiated and pursued by TRPA, the TRPA’s Gov-

erning Board, over the vehement protests of the Peti-

tioners (and hundreds of other affected property owners),

adopted the 1984 Regional Plan at issue. When their

protests had proved of no avail and the Regional Plan

was adopted, the property owners banded together, and

with their representative membership organization

brought this suit in the federal district court.! The Peti-

tioners alleged in their Complaint that the Regional Plan,

by its express terms, directly prohibits them from building

1 Article VI(j)(2)(A) of the Compact provides: “Venue lies

. in the state or federal judicial district where the real

property is situated.” App. E, 104a. Thus, the Nevada-side

property owners filed this action in the Federal District Court

for the District of Nevada. The Petitioner Preservation Council,

along with 415 other property owners owning similar unde-

veloped single-family homesites on the California side of the

Lake Tahoe Basin, also simuitaneously filed a nearly identical

action in the Federal District Court for the Eastern District of

California in Sacramento. A decision in that case is currently

pending in the Ninth Circuit, having been allowed to “trail”

the Nevada-side case at issue herein. Tahoe-Sierra Preservation

Council v. Tahoe Regional Planning Agency, 9th Cir. No. 87-2096.

The legal issues involved are virtually identical.

their homes on, or making any other economically viable

use of, their properties. Specifically, they alleged that ihe

express terms of the Regional Plan, combined with a

similar predecessor “interim moratorium,” constituted a

“taking” of their property, without any compensation, in

contravention of the Fifth Amendment. The central issue

in this lawsuit, of course, is who should pay for the

burden of correcting perceived environmental abuses

caused by prior urbanization of portions of the Lake

Tahoe Basin — the property owners whose lands have not

yet been built upon, or the public at large through the

responsible government agencies?

After six years of costly and protracted litigation, the

Court of Appeals, for the first time in any reported deci-

sion, found Petitioners’ facial challenge not “ripe” for

judicial review because they had not first asked TRPA to

change its mind - or in the new parlance of the “takings

game,” their facial challenge was not “ripe” for judicial

review because they had failed to first apply for and

pursue an amendment to the Regional Plan which had

been adopted over their vigorous protestations.

In First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987), a case involving a

similar facial challenge to a newly-adopted land use regu-

lation, this Court set to rest the troublesome question of

the remedy available to an aggrieved property owner

when government, by its land use regulations, “goes too

far” so as-to “take” private property for public use. In

First English, this Court held that “just compensation”

was mandated by the Constitution for the period of time

the regulation remained in effect. Unfortunately, how-

ever, that did not set the matter to rest.

Rather, since First English, the troublesome issue of

ripeness has assumed center stage —- with most takings

litigation now seeming to focus almost exclusively on the

procedural issue of when, if ever, the property owner is

entitled to his or her day in court, not the substantivd

legal issues involved. As one perceptive commentator

recently noted:

“Since the Supreme Court’s decision in Wil-

liamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985), land use

litigation has taken on the distinct aroma of a

produce market: rather than examining govern-

mental actions and their effects on property

owners, courts have become possessed by prob-

lems of determining whether a particular case is

‘ripe’ enough even to consider. (It may even be

possible that, if the courts would stop spending

so much time squeezing the fruit and more time

dealing with the merits, less of their time would

be consumed and more justice could be done.)”

Berger, ‘Ripeness’ Test for Land Use Cases Needs

Reform: Reconciling Leading Ninth Circuit Deci-

sions Is An Exercise in Futility, 11 Zoning and

Planning Law Report 57 at 57 (September 1988).

As that same commentator noted in a separate schol-

arly assessment of recent takings jurisprudence:

“The ‘ripeness’ rules have turned land-use

planning into a perverse game. Their fuzzy

nature and inadvertent interplay have created a

situation in which no one can be sure what the

rules actually are. A perceptive participant in

the drafting of judicial opinions once opined

that it is hard to quarrel with the objective that

an opinion contain a reasonably articulated

explanation of why the losing party lost. Read-

ing ‘ripeness’ decisions these days is enough to

make one’s head spin. Something is very wrong

and in need of corrective attention.” Berger,

Happy Birthday, Constitution: The Supreme Court

Establishes New Ground Rules for Land-Use Plan-

ning, 20 Urban Lawyer 735, 795 (Summer 1988).?

2 Other commentators have also recently expressed similar

concerns over the jucicial trend limiting access to the courts in

regulatory takings cases based on “ripeness” concerns. See,

(Continued on following page)

The per curiam opinion provides possibly the most

graphic example of how the rules of the “takings game”

have recently become disturbingly convoluted and con-

fused, and how important it is for this Court to provide

critically-needed judicial guidance. Surely there can be no

more vivid example than the instant case of the patent

unfairness of the existing process — of how easy it now is

when relief is apparently in sight simply to move the goal

posts back at the last moment, so as effectively to defeat

the very protections afforded to private property owners

by the Fifth Amendment.

B. Background and Proceedings Below

Following comprehensive amendments to the bi-state

Compact, which became effective on December 19, 1980,

the TRPA began the process of preparing a new Regional

Plan for the Lake Tahoe Basin to address perceived envi-

ronmental problems.? App. E, 88a-91la. First, in June of

(Continued from previous page)

e.g., Mandeleker and Blaesser, Applying the Ripeness Doctrine in

Federal Land Use Regulation, Zoning and Planning Law Report,

Vol. 11, No. 7, at 49-56 (1988); and Kratovil, Land Use Takings

and the Problem of Ripeness in the United States Supreme Court

Cases, 1 B.Y.U. Journ. of Pub. L. 375, 392 (1987). For a partic-

ularly illuminating discussion of the confused treatment given

the ripeness issue by the various circuits, see Blaesser, Closing

the Federal Courthouse Door on Property Owners: The Ripeness and

Abstention Doctrines in Section 1983 Land Use Cases, 2 Hofstra

Prop. Law Journal 73-163 (1988). Summarizing the situation in

the Ninth Circuit, for instance, the author noted: “The Court of

Appeals for the Ninth Circuit has had many opportunities to

refine the finality requirement of the ripeness doctrine. How-

ever, its decisions have not yet yielded any predictable

approach for plaintiff property attorneys.” Id. at 108.

3 Article V(b) of the Compact required the TRPA to adopt

“environmental threshold carrying capacities for the region”

within 18 months of December 19, 1980, the effective date of

(Continued on following page)

1981, in order to “freeze the landscape” while it was

undertaking the new land use planning process, the

TRPA adopted an “interim ordinance” (Ordinance 81-5

effective on June 25, 1981), which remained in effect until

the new Regional Plan was completed. Petitioners alleged

that interim Ordinance 81-5, by its express provisions,

effectively prohibited each of them from building on their

residential parcels for nearly three years while TRPA was

prenaring its new Regional Plan. App. F, 149a-151a.

After three more years of extensive planning efforts,

including several public hearings at which the Petitioners

vehemently expressed their opposition to the proposed

draft Plan, the TRPA Governing Board nevertheless acted

to adopt the 1984 Regional Plan at issue.4 In doing so,

(Continued from previous page)

the Compact amendments. Article V(c) required TRPA to then

amend its Regional Plan and land use ordinances within one

year thereafter to incorporate those environmental threshold

carrying capacities. In fact, this task was not completed by

TRPA until April, 1984, or a total of approximately 40 months

after it began. App. E, 88a-91a.

4 On April 26, 1984, the same day that TRPA’s 1984

Regional Plan became effective, the California Attorney Gen-

eral and an orgainzation known as the League to Save Lake

Tahoe, brought a separate suit against TRPA for deciaratory

and injunctive relief, arguing that the newly-enacted Regional

Plan did not go far enough in terms of environmental protec-

tion. California v. Tahoe Regional Planning Agency, No.

Civs-84-0516-EJG (E.D. Cal. 1984). On August 29, 1984, the

district court in Sxcramento granted California’s request for a

preliminary injunction, and issued an order which “enjoined

and restrained [TRPA] from taking any action to approve any

project . . . or to approve the construction of any man-made

development within the agency’s jurisdiction,” with certain

limited exceptions. That preliminary injunction was affirmed

on appeal. California v. Tahoe Regional Planning Agency, 766 F.2d

1308 (9th Cir. 1985). Nevertheless, a number of projects were

(Continued on following page)

TRPA provided neither a mechanism for “variances,” nor

for its purchase of the affected properties. In fact, TRPA

had no budget for land acquisition, and considered itself

immune from inverse condemnation claims by virtue of

the Ninth Circuit’s earlier decision in Jacobson v. Tahoe

Regional Planning Agency, 566 F.2d 1353 (9th Cir. 1977),

which had heid that TRPA could not be sued in inverse

condemnation because it lacked direct condemnation

powers under the Compact.®

Following the adoption of the 1984 Regional Plan,

and keeping in mind the 60-day statute of limitations set

forth in Art. VI(j)(4) of the Compact (App. E, 105a),® the

Petitioners timely filed their Complaint on June 25, 1985

in the Federal District Court for the District of Nevada.

App. F, 117a-194a. The district court had subject matter

jurisdiction pursuant to Article VI(j) of the Compact

(App. E, 103a-105a); see also, League te Save Lake Tahoe v.

Tahoe Regional Planning Agency, 507 F.2d 517 (9th Cir.

1974).

(Continued from previous page)

allowed to proceed during the course of that preliminary

injunction by way of judicially-approved, case-by-case excep-

tions to the injunction.

5 The 1984 Regional Plan at issue remained in full force

and effect until it was replaced on July 15, 1987 by still another

regional plan — known as the 1987 Regional Plan. Even today,

under the 1987 Regional Plan and its implementing ordinances,

TRPA continues to impose a total prohibition against building

on parcels identified as being in Stream Environment Zone

(“SEZ”) areas (applicable to many of the Petitioners’ proper-

ties), although a new system for land classification was placed

into effect for the former Class 1, 2, and 3 properties. To date,

the provisions of the 1987 Regional Plan are not at issue in this

litigation.

6 Art. VI(j)(4) states in pertinent part: “A legal action

arising out of the adoption or amendment of the regional plan

... Shall be commenced within 60 days after final action by the

agency.” App. E, 105a.

As set forth in greater detail in the Complaint, the

Petitioners comprise two separate groups: first, those

who own parcels in areas classified by TRPA as “stream

environment zones” (the “SEZ plaintiffs”); and secondly,

those whose properties are in areas classified by TRPA as

Land Capability Classes 1, 2, and/or 3 (the “Class 1, 2,

and 3 plaintiffs”). The specific proscriptions of the Plan

which the SEZ plaintiffs alleged on their face prohibited

any economically viable use of their single-family lots are

set forth verbatim in paragraph 26 of the Complaint.

App. F, 154a-156a.” Similarly, the express prohibitions on

development applicable to the properties owned by the

Class 1, 2, and 3 plaintiffs are set forth verbatim in

Paragraph 30 of the Complaint (App. F, 159a-164a), fol-

lowed by additional “takings allegations” in Paragraphs

31-33 (App. F, 164a-167a) and the Fifth Claim for Relief

(App. F, 182a-185a).8

? As to the SEZ properties, the Regional Plan provided in

pertinent part: “ . only forest management practices, stream

improvement programs, and habitat restoration projects are permis-

sible uses”; and “ . . . no new development shall be permitted in

stream environment zones ...” App. F, 155a. In Paragraph 28 of

the Complaint, it was alleged that the Plan’s prohibitions

applicable to SEZ lands, when “combined with similar prohibi-

tions and restrictions set forth in Ordinance 81-5,” have

“deprived [the SEZ plaintiffs] of the entire practical, substan-

tial, viable, beneficial, reasonable, economic and feasible use of

their properties, there being no other lawful or authorized

practical or reasonable use to which their properties can be

put.” App. F, 157a. Also see the similar allegations of the

Second Claim for Relief. App. F, 172a-175a.

8 As to the Class 1, 2, and 3 properties, the Regional Plan

provided in pertinent part: “Development of environmentally sen-

sitive lands in capability classes 1, 2, and 3 will not be permitted”

[App. F, 160a], or as stated elsewhere, “there shall be a prohibi-

tion of development on Land Capability Class 1-3 land...” This

prohibition was subject to an “exception” that, to date, has

never been implemented - a theoretical exception that would

(Continued on following page)

As of the filing of the Complaint, the 364 individual

property owners owned (many as husband and wife) ir

the aggregate some 287 separate parcels of land at issue

in this litigation, of which 65 parcels are so-called SEZ

parcels and 172 are Class 1, 2, and 3 parcels.?

The Complaint included seven separate claims for

relief. See summary set forth by the Court of Appeals at

911 F2d 1331, 1334 (App. A, 2a-4a). After two years of

costly litigation, the district court dismissed the inverse

condemnation and related claims for monetary relief (the

Second, Fifth, Sixth and Seventh Claims) as to the two

states on sovereign immunity grounds, and as to TRPA

on the basis of Jacobson, supra — suits for inverse condem-

nation do not lie against TRPA as it does not have statu-

tory powers to directly condemn property. App. B,

36a-52a. Subsequently, the district court granted defen-

dants’ motions for summary judgment on the remaining

(Continued from previous page)

have allowed up to 75 lots per year for three years (9%), out of

the estimated 2350 Class 1, 2, and 3 lots on the Nevada side, to

be developed based on “a point priority system.” The Com-

plaint alleged this exception “ . . . offers such a statistically

insignificant and de minimus chance that the named Plaintiffs

might qualify to use or build upon their property that it cannot

be considered a viable or meaningful exception or variance to

such prohibitions. Clearly, such an exception gives only the

bare appearance of fairness, while in fact the Regional Plan

totally and permanently precludes any construction on or rea-

sonable use of approximately 91% (not more than 225 out of

approximately 2350 are potentially eligible for approval to

build) of the remaining Class 1, 2, and 3 lawfully-created lots

or parcels in the State of Nevada...” App. F, 165a.

% Attached to the Complaint was an individual appendix

~for each parcel invoived, setting forth the relevant information

regarding that parcel, along with a map showing that the

parcel was located in an area earmarked by the Regional Plan

as either an SEZ area or Class 1, 2, or 3 area. Two examples of

such appendices are found immediately behind the Complaint,

App. F, 195a-199a.

}

claims (the First, Third, and Fourth Claims for Relief).

App. C, 53a-70a.

The Petitioners then appealed to the Court of

Appeals where the matter was briefed and set for oral

argument. Somewhat foriuitously, on June 9, 1987, the

day before oral argument, this Court issued its decision

in First English, providing needed guidance as to the

appropriate remedy should the Petitioners prevail.

Shortly after oral argument, the Court of Appeals, on its

own motion, issued an order removing the case from

submission and directed the parties to explore settlement.

After a lengthy period in which settlement discussions

proved fruitless, the matter was resubmitted.

Finally, after a further inexplicable delay, the per

curlam decision was rendered on August 9, 1990 — nine

years after TRPA first imposed its initial interim mor-

atorium in 1981, six years after the Regional Plan was

adopted and litigation commenced, and over three years

after the matter was briefed and argued to the Court of

Appeals. Borrowing from the “ripeness criteria” applied

by this Court to as-applied challenges, the Court of Appeals

found, to the Petitioners’ dismay, that because the prop-

erty owners had not first sought an “amendment” to the

newly-adopted plan — which the per curiam opinion

found was analogous to seeking a “variance” to a zoning

requirement — their facial challenge was not ripe for judi-

cial review. To the best of Petitioners’ knowledge, this is

the first time any appellate court has so held. Petitioners’

request for rehearing and/or suggestion for rehearing en

banc was thereafter denied on October 31, 1990. App. D,

71a-72a.

Thus, without the intervention of this Court, the

rules of the “takings game” have once again been mas-

saged to raise the ripeness bar still another major notch,

so as effectively to deny these property owners, who have

done everything possible to protect their constitutional

rights, an effective avenue to pursue the protection of

those rights in the courts. In short, they have been told

late in the game, and after long and costly litigation, that

they must start over again through still another costly

and protracted regulatory process, and failing that, pre-

sumably through still another judicial battle to try and

redress the injury that already has been inflicted.!°

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH, OR MISAPPLIES, WELL-ESTAB-

LISHED PRECEDENTS OF THIS COURT

APPLICABLE TO INITIATING LAND USE REGD-

LATORY “FACIAL CHALLENGES” IN THE

COURTS

In an unbroken line of cases extending nearly seven

decades, this Court has often considered and reviewed

facial challenges to legislative land use enactments where

it was contended that those enactments, “on their face,”

created a “taking” of private property or a denial of due

process in violation of the Fifth and/or Fourteenth

Amendments. Frequently reaching the merits of the sub-

stantive issues involved, this Court never once articu-

lated a principle that judicial review of those facial

challenges was barred by the failure of the plaintiffs to

show that they had first sought a corrective amendment

(or repeal) from the tegislative body to the enactment

which was being challenged.

In the seminal land use decision of Village oj Euclid v.

Ambler Realty Co., 272 U.S. 365 (1926), this Court reviewed

10 The Petitioners concur with much of the per curiam

opinion, particularly as it addresses the issues of “mootness”

and TRPA’s claimed immunity under Jacobson. However, by

way of this Petition, the Petitioners take vigorous exception

with the Court of Appeals’ determination in part III.A. of the

per curiam opinion (App. A, 8a-16a) that the Petitioners’ facial

challenge was not ripe for review due to their failure to first

seek an amendment to the Plan.

a constitutional challenge to a zoning ordinance adopted

by the Village Council establishing a comprehensive zon-

ing plan which regulated the uses of all lands within the

village. The Village argued in the lower court that,

because the property owner had made no effort to obtain

a building permit or apply to the zoning board of appeals

for relief as it might have done under the terms of the

new ordinance, the suit was premature. In response, this

Court held:

“The motion was properly overruled. The effect

of the allegations of the bill is that the ordinance

of its own force operates greatly to reduce the

value of appellee’s lands and destroy their mar-

ketability for industrial, commercial and resi-

dential uses, and the attack is directed, not as

against any specific provision or provisions, but

against the ordinance in its entirety. Assuming

the premises, the existence and maintenance of

the ordinance in effect constitutes a present

invasion of appellee’s property rights and a

threat to continue it. Under these circumstances,

the equitable jurisdiction is clear.” 272 US. at

386-87.

More recently, in a series of land use cases involving

“facial challenges,” this Court has not hesitated to tackle

the substantive issues presented by those cases, without

first requiring the property owners to start over by seek-

ing an amendment to the complained-of provisions. For

example, in Agins v. Tiburon, 447 U.S. 255 (1980), this

Court reviewed the decision of the California Supreme

Court which had found the zoning ordinance at issue

(downzoning the plaintiff’s property to Residential

Planned Development, allowing between one and five

residences to be built on plaintiff's 5-acre tract) had not

deprived the plaintiffs of their property in violation of

the Fifth Amendment. Turning to the merits of the case,

this Court agreed with the California Supreme Court,

finding:

“We now affirm the holding that the zoning

ordinance on its face does not take the appel-

lant’s property without just compensation.” 447

U.S. 255, 259 (emphasis added).

Again, in Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987), this Court found no

difficulty in addressing the merits of the property

owners’ facial challenge to certain specific provisions of

Pennsylvania’s Bituminous Mine Subsidence and Land

Conservation Act, finding that under the circumstances

the plaintiffs had not shown that on its face it effected a

taking of their property. In doing so, this Court again

noted the important distinction between a facial challenge

and an as-applied challenge, stating:

“The posture of the case is critical because we

have recognized an important distinction

between a claim that the mere enactment of a

statute constitutes a taking and a claim that the

particular impact of government action on a

specific piece of property requires the payment

of just compensation.” 480 U.S. at 494.

After noting that, “Petitioners thus face an uphill battle in

making a facial attack on the Act as a taking” (480 U.S. at

495), and after examining the language of the Act and the

facts involved, this Court concluded that petitioner’s

facial attack had not been proven. 480 U.S. at 501-02.

Similarly, in Hodel v. Irving, 481 U.S. 704 (1987), this

Court held in a facial challenge case that the “escheat

provision” of the Indian Land Consolidation Act of 1983

effected a taking of appellees’ property without just com-

pensation, again without requiring that the appellees first

had to seek an amendment to that enactment. And, of

course, that same term in First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987), this Court did not feel the least bit constrained

from addressing the substantive issues involved in a sim-

ilar facial challenge, merely because the plaintiffs had not

first sought an amendment to or repeal of the emergency

ordinance at issue.'!

Disregarding this consistent line of precedents

involving facial challenges, and instead erroneously bor-

rowing from holdings by this Court in two recent as-

applied takings cases, the per curiam opinion created an

entirely new, nearly insurmountable “ripeness barrier” to

facial challenges. According to the per curiam opinion, an

aggrieved property owner is now precluded from seeking

redress in the courts until he or she has first sought a

corrective amendment to (or repeal of) the statute or

regulatory enactment. In effect, the per curiam opinion

concluded that even where the legislative enactment was

adopted by the regulatory body over the property

owner’s protests, nevertheless upon enactment the bur-

den is then shifted to the property owner to undo the

damage, by first pursuing a costly and likely futile effort

to seek an amendment (or repeal) of the very same enact-

ment before pursuing judicial redress.

In doing so, the per curiam opinion fails to recognize

the important distinction between the proper ripeness

'! Also see, among others, Goldblatt v. Town of Hempstead,

369 U.S. 590 (1962), upholding as constitutional the town’s

ordinance regulating dredging and pit excavating against a

facial challenge, finding no taking had occurred, without

requiring that the property owner first apply for an amend-

ment; Hodel v. Virginia Surface Mining and Reclamation Associa-

tion, 452 U.S. 264 (1981), a facial challenge to the Surface

Mining Control and Reclamation Act, where this Court

addressed the merits of the claim and found the Act constitu-

tional against a Fifth Amendment takings claim without requir-

ing the property owner first to apply for an amendment; and

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 449

(1982), where the Court found a provision of New York law

permitting installation of a cable T.V. facility on private prop-

erty without compensation was a taking under the Fifth and

Fourteenth Amendments, again without requiring the property

owner first to seek an amendment to the law.

standards applicable to facial, as contrasted with as-

applied, constitutional attacks in land use cases: if a stat-

ute is unconstitutional on its face, the constitutional injury

is complete when the statute becomes effective and judi-

cial redress may then be sought (First English, supra, at

320-21); but if the challenge goes to the manner in which a

statute is applied to the property owner’s own request for

land use entitlements, not to the express terms of the

statute, then the court must wait to see how the statute is

“finally applied” by the public agency to the property

owner’s application before it can determine the constitu-

tional issues.!? Williamson County Regional Planning Com-

mission v. Hamilton Bank, 473 U.S. 172 (1985); and

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340

(1986).

In Williamson County, for instance, the plaintiff-devel-

opers applied for entitlements from the county to build a

residential subdivision. When their application was

denied, they challenged the county’s refusal to approve

their revised preliminary development plat, not the

underlying land use enactment. The plaintiffs’ claims in

12 An excellent treatment of the distinction between facial

and as-applied takings challenges is provided by the district

court in Zilber v. Town of Moraga, 692 F.Supp. 1195 (N.D. Cal.

1988), where the court noted, at pp. 1200-01:

“This distinction between facial and as-applied

challenges for purposes of final decision ripeness

flows naturally from the differing nature of the two

types of claims. Since the issue in a facial challenge

is whether ‘mere enactment of the zoning ordinances

constitutes a taking,’ Agins, 447 U.S. at 260, 100 S.Ct.

at 2141, there is no need for a final decision by the

enforcing authority as to how the law will be applied

in a particular case. Put differently, a court need not

know how a statuie will be administered to deter-

mine whether it constitutes a taking on its face.

Therefore final decision ripeness is not a bar to Zil-

ber’s taking claim.”

Williamson County differed fundamentally from the claims

of the Petitioners in this case. In Williamson County, the

plaintiffs complained only of the effect of the zoning

ordinance as applied to them - not that the express terms of

the ordinance created the impermissible taking. By con-

trast, the Petitioners here have not sought a development

permit from TRPA. Rather, TRPA itself initiated the new

land use regulations, over the Petitioners’ repeated pro-

tests, which regulations the Petitioners alleged, on their

face, specifically prohibited the further economically via-

ble use of their single-family homesites.

Similarly, in MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340 (1986), also relied upon in the per

curiam opinion, the property owner had initiated the

land use process by seeking an application for a tentative

map to develop its property. Its judicial challenge went to

the rejection of that tentative map by the county planning

commission and board of supervisors, not to the underly-

ing statutory enactment. Id. at 342. According to the

MacDonald Court, “an essential prerequisite to [the asser-

tion of an as-applied regulatory takings claim] is a final

and authoritative determination of the type and intensity

of development legally permitted on the subject prop-

erty.” Id. at 348. This Court then noted that the property

owner had submitted only one application for a subdivi-

sion approval, and had received only one response to that

application. Citing Williamson County, the Court found

that was not adequate “exhaustion” before lodging an as-

applied challenge. Id. at 349.

In contrast to Williamson County and MacDonald, this

Court most recently addressed a facial challenge to a land

use enactment in First English. There, this Court had no

trouble dealing with the substantive issues involved, and

never once suggested that the property owner first had to

seek an amendment to the complained-of emergency

ordinance before its claim was “ripe” for judicial relief. In

fact, after referring to MacDonald and Williamson County,

this Court characterized the factual situation in First

English as entirely different, stating:

“The posture of the present case is quite

different. Appellants’ complaint alleged that

‘Ordinance No. 11,855 denies [it] all use of

Lutherglen,’ and sought damages for this depri-

vation.” 482 U.S. at 311.

The Court made it clear that in a facial challenge

context, the injury is complete on the date of enactment

of the offending statute:

“It is axiomatic that the Fifth Amendment's just

compensation provision is ‘designed to bar Gov-

ernment from forcing some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.’ [Cita-

tions omitted] In the present case the interim

ordinance was adopted by the County of Los

Angeles in January 1979, and became effective

immediately. Appellant filed suit within a

month after the effective date of the ordinance

and yet when the Supreme Court of California

denied a hearing in the case on October 17, 1985,

the merits of appellant’s claim had yet to be

determined. The United States hag been

required to pay compensation for leasehold

interests of shorter duration than this.

* * * Where this burden results from govern-

mental action that amounted to a taking, the

Just Compensation Clause of the Fifth Amend-

ment requires that the government pay the land-

owner for the value of the use of the land

during this period.” 482 U.S. at 318-19.'3

'3 In First English, this Court further distinguished Wil-

liamson County, citing with approval Kirby Forest Industries, Inc.

v. United States, 467 U.S. 1 (1984) - “Where Government physi-

cally occupies land without condemnation proceedings, ‘the

owner has a right to bring an inverse condemnation suit to

recover the value of the land on the date of the intrusion of the

government.’ ” 482 U.S. 304, 320-21 fn. 10 (emphasis in original).

The Court then held:

“We merely hold that where government’s activ-

ities have already worked a taking of all use of

property, no subsequent action by the government

can relieve it of the duty to provide compensation for

the period during which the taking was effective.”

482 U.S. at 321. (Emphasis added).'4

In brief, it is submitted that this Court has made it

patently clear that in cases such as the instant one involv-

ing facial challenges to the express terms of a land use

enactment, those claims are “ripe” for judicial review as

soon as the enactment becomes effective — the point when

the constitutional injury occurs. Nowhere has this Court

ever suggested that the rules applicable to as-applied chnal-

lenges — such as the requirement that the property owner

first seek a “variance” to a zoning ordinance where avail-

able — should be applied to such facial challenges. Where,

as here, the property owner claims that the statute or

land use enactment adopted by a public agency, on its

face and by its express terms, “takes” all economically

viable use of his or her property, then “the landowner has

14 The dissent of Justice Brennan in San Diego Gas and

Electric v. City of San Diego, 450 U.S. 621 (1981), relied upon by

the majority in First English, is also insightful. As Justice Bren-

nan stated:

“The language of the Fifth Amendment prvohibits the

‘tak[ing]’ of private property for ‘public use’ without

payment of ‘just compensation.’ As soon as private

property has been taken, whether through formal

condemnation proceedings, occupancy, physical

invasion, or regulation, the landowner has already

suffered a constitutional violation, and ‘the self-exe-

cuting character of the constitutional provision with

respect to compensation,’ United States v. Clarke, 445

U.S. 253, 257 (1980), quoting 6 J. Sackman, Nichols’

Law of Eminent Domain at 25.41 (rev. 3d ed. 1980), is

triggered.” 450 U.S. at 654. (emphasis in original).

already suffered a constitutional violation, and the self-

executing character of the Fifth Amendment .. . is trig-

gered.” 450 U.S. at 654 (emphasis in original).

Il. THE NINTH CIRCUIT’S DECISION IS ALSO AT

ODDS WITH RECENT DECISIONS OF AT LEAST

THE FIRST, FOURTH, AND ELEVENTH CIR-

CUITS, AS WELL AS DECISIONS OF EVEN THE

NINTH CIRCUIT, IN CREATING SUCH A NOVEL

RIPENESS BAR TO FACIAL CHALLENGES

A. Conflict With Other Circuit Decisions

The per curiam opinion squarely conflicts with recent

decisions from several other circuits holding that facial

challenges to land use regulatory enactments are not

barred by the ripeness criteria applicable to as-applied

challenges. For example, the First Circuit, in Smithfield

Concerned Citizens v. Town of Smithfield, 907 F.2d 239 (1st

Cir. 1990), recently addressed a challenge brought by

twenty-five property owners, who alleged that the town’s

newly-adopted zoning ordinance had cost them $50-mil-

lion in damages, and who also sought an injunction

declaring the new zoning ordinance invalid. The district

court had relied on Williamson County in support of its

ruling that the plaintiffs’ substantive due process claims

were not ripe until the plaintiffs had first sought “final

decisions” from the town’s zoning board. The First Cir-

cuit, in reversing, noted at 907 F.2d 242-43:

“The district court erred in ruling that a facial

substantive due process challenge to a zoning

ordinance under the above theory is not ripe for

adjudication until variances have been applied

for (and inverse condemnation proceedings

invoked).” [Citing Euclid v. Ambler Realty Co.,

supra, Pennell v. City of San Jose, 485 U.S. 1

(1988), and other recent decisions.]

Similariy, in Beacon Hill Farm Associates v. Louden

County Board of Supervisors, 875 F.2d 1081 (4th Cir. 1988),

the property owners brought a facial challenge to the

newly-adopted revisions to the Louden County General

Zoning Ordinance, which ordinance was intended to reg-

ulate development on the environmentally-sensitive

mountainsides of the County. The district court had dis-

missed the constitutional challenge as not ripe for review

because the landowner had not yet sought a development

permit, nor shown how the ordinance would be applied

to its property. The Fourth Circuit, in reversing the dis-

trict court’s dismissal, and after tracing the decisions of

this Court since Euclid v. Ambler Realty Co., supra, con-

cluded that the district court should have addressed the

plaintiff’s facial challenge on the merits, holding:

“Beacon Hill’s complaint alleges that the

mountainside development overlay district

ordinance violates the due process clause of the

Fourteenth Amendment in that it is ‘unreason-

able, arbitrary, and capricious and bears no sub-

stantial relationship to the advancement of a

legitimate state interest’ and that it violates the

equal protection clause of the Fourteenth

Amendment in that the ordinance classifies

property based on elevation and slope and that

such classifications are ‘arbitrary, discrimina-

tory, unreasonable and bear no reasonable or

substantial relation to a legitimate governmental

interest.’ While the complaint is couched almost

completely in conclusory terms, about which no

‘present objection is made, in so far as it presents

a facial attack on the ordinance, it should not

have been dismissed as being premature. See

e.g. Agins, supra; Pennell, supra. In view of the

fact that-a facial challenge to a land use ordi-

nance must carry such a heavy burden of per-

suasion that it may even seem that the claim of

facial invalidity is entirely without merit [foot-

note omitted], the question should nevertheless

be decided for the claim is not premature merely

because it is brought before a final determina-

tion of the extent of the ordinance’s application

to a specific piece of property after application

for the proper permits has been made.” 875 F.2d

at 1084-85.

In addition, in Eide v. Sarasota County, 908 F.2d 716

(11th Cir. 1990), the Eleventh Circuit, after a lengthy

discussion of the distinctions between different types of

constitutional challenges to land use enactments, went on

to note the important differences in the ripeness criteria

applicable to facial, versus as-applied challenges:

“It is important first to note that Eide’s chal-

lenge is an as-applied challenge, not a facial

challenge. In order to challenge the County’s

application of the sector plan to his property,

Eide must first demonstrate that the sector plan

has been applied to his property.” 908 F.2d at

724-25 (emphasis in original).

In a companion footnote, the Eleventh Circuit stated:

“This requirement does not apply to a facial

challenge. Fry v. City of Hayward, 701 F.Supp.

179, 181 (N.D. Cal. 1988). There is an important

reason for this distinction: when a landowner

makes a facial challenge, he or she argues that

any application of the regulation is unconstitu-

tional; for an as-applied challenge, the land-

owner is only attacking the decision that

applied the regulation to his or her property, not

the regulation in general.” 908 F.2d at 724, fn.

14.15

15 Also see, for example, the following recent district court

decisions: Fry v. City of Hayward, 701 F.Supp. 179, 181 (N.D.

Cal. 1988) — the property owner's facial challenge to the open

space referendum was ripe for review, “since a ‘final decision’

on the application of the statute is not a prerequisite to a facial

challenge”; Zilber v. Town of Moraga, 692 F.Supp. 1195 (N.D.

Cal. 1988) - while the property owner’s as-applied challenge,

absent a final rejection of its application, was not ripe for

review, its ciaim that the open space ordinance on its face

constituted a taking was subject to review on the merits; and

Crow-New Jersey 32 Ltd. v. Township of Clinton, 718 F.Supp. 378,

381-83 (D. N.J. 1989) - applying established Supreme Court

precedents, the plaintiff’s facial challenge to the ordinance was

ripe for review, even though it had not obtained a final deci-

sion as to the application of the ordinance to its property.

B. Conflict With Other Ninth Circuit Precedents

At least until the per curiam opinion in this case,

even the Ninth Circuit had recognized the fundamental

difference between the proper ripeness standards appli-

cable to facial challenges, as contrasted with as-applied

challenges. Thus, for example, in Martino v. Santa Clara

Valley Water District, 703 F.2d 1141 (9th Cir. 1983), the

Ninth Circuit clearly recognized this important distinc-

tion, noting:

“{T]he failure to submit a development plan is

not, in and of itself, a bar to an attack on the

ordinance on ‘its face.’” 703 F.2d at 1146-47.

Similarly, in Lake Nacimiento Ranch Co. v. County of

San Luis Obisbo, 830 F.2d 977 (9th Cir. 1987), amended 841

F.2d 872 (1988), the Ninth Circuit dismissed the as-

applied challenge as unripe, finding that there had nei-

ther been a rejected development plan, nor the denial of a

variance. However, the court went on to note that the

district court had “properly recognized that the Ranch

may challenge the zoning restriction on the basis that the

mere enactment” of the restriction constituted a taking of

its property. 841 F.2d at 877. The court then proceeded to

address the merits of the property owner’s facial chal-

lenge.

As Judge Kozinski pointed out in his dissent in the

instant case, the per curiam opinion also seems to be

_ directly at odds with two other decisions of the Ninth

Circuit where similar issues were presumably laid to rest.

In Hall v. City of Santa Barbara, 833 F.2d 1270, 1277 (9th

Cir. 1977), Judge Kozinski noted that the court had held

that a facial taking claim was not precluded merely

because the governmental body had the “right” to amend

the applicable law at some point in the future. “A govern-

mental taking can always be undone if the government so

chooses. That as [sic] never defeated a taking claim.” /d.,

citing several examples; App. A, 30a. Similarly, in Her-

rington v. County of Sonoma, 834 F.2d 1488, amended 857

F.2d 567 (9th Cir. 1988), he noted that the Ninth Circuit

also recognized the clear distinction between variances

and amendments to legislative enactments. App. A,

30a-31la. In Herrington, even though the court had found

that a variance request was not required, the court

imposed no additional requirement that the Herringtons’

attempt to seek an amendment to the plan which consti-

tuted the basis for their taking claim.

Most recently, in Southern Pacific Transportation Co. v.

City of Los Angeles, 1990 WL 205207 (9th Cir. Sept. 7,

1990), amended and refiled Dec. 4, 1990, __ F.2d __, the

Ninth Circuit again addressed the different ripeness stan.

dards applicable to an as-applied claim, distinguishing

those from the “facial claim” of the property owner.'®

Ill. THE MERE FACT THAT A PROPERTY OWNER

HAS THE “RIGHT” TO SEEK AN AMENDMENT

TO OR REPEAL OF A LAND USE ENACTMENT

SHOULD NOT RENDER ITS FACIAL CHAL-

LENGE ANY LESS RIPE FOR JUDICIAL REVIEW

In its apparent haste to fashion still another “ripeness

bar” to facial challenges against land use enactments, the

per curiam opinion seems to give unexpected meaning to

a relatively benign provision of TRPA’s Compact, a provi-

sion that on its face appears only to impose processing

timelines. Thus, the per curiam opinion points with new-

found importance to Article V(a)(2) of TRPA’s Compact

(App. E, 87a-88a), which provides in relevant part:

“The governing body may adopt, modify, or

reject the proposed plan or amendment, or may

initiate and adopt a plan or amendment without

referring it to the planning commission. If the

16 Even in addressing the facial claim brought by the prop-

erty owner in Southern Pacific, the Ninth Circuit appears to

have again raised the ripeness bar to the courthouse, by find-

ing the facial challenge “unripe” for judicial review because

the property owner, in its complaint, had not shown that it had

first sought compensation through state procedures.

fs ieee

governing body initiates or substantially mod-

ifies a plan or amendment, it shall hold at least

one public hearing thereon after due notice as

required by this subdivision.

If a request is made for the amendment of

the regional plan by:

* * *

(2) The owner or lessee of real property

which would be affected by such amend-

ment, the governing body shall complete its

action on such amendment within 180 days

after such request is accepted as complete

according to standards which must be pre-

scribed by ordinance of the agency.”

Fashioning an argument just cursorily mentioned in

one of the respondents’ briefs, an argument that was

never seriously argued to nor addressed by the district

court, the per curiam opinion attempts to distinguish

TRPA’s legislative scheme from all other similar land use

planning processes — arguing in effect that because a

provision of TRPA’s Compact suggested a “right” for a

citizen to seek such an amendment to the Regional Plan,

that somehow the faciai challenge at issue was entirely

different from other types of facial challenges seeking

constitutional redress.'”? As the per curiam opinion stated:

“Crucial to our decision is the fact that

TRPA specifically invites amendment proposals

17 While the per curiam opinion confers great importance

on the provisions of Art. V(a)(2) regarding processing

timelines, absolutely no recognition is given to the dilemma

posed by an equally important deadline provision — the 60-day

statute of limitations to initiate litigation “arising out of the

adoption or amendment of the regional plan” found in Art.

VI(j)(4). App. E, 105a. According to the per curiam opinion,

apparently the Petitioners should have had the gumption to

disregard the dictates of the 60-day statute of limitations, and

instead should have filed their application to TRPA for an

amendment to the Plan, trusting that a court would subse-

quently find they did the right thing.

and promises action on them within a reason-

able time. * * * Virtually all statutes are subject

to repeal or amendment, yet they are not for

that reason alone, any less final, nor their effect

any less certain. However, a statute that sets

forth the specific procedure by which a person

may seek to modify or ameliorate that statute’s

effect on him, and requires the governmental

entity to act on its application within a reason-

able time, presents an entirely different ques-

tion.” App. A, 10a-1la.

In rejoinder, Judge Kozinski forcefully argued:

“It makes not the least bit of difference that

the Compact here establishes a formalized pro-

cedure for proposing amendments. Citizens

don’t need the government’s permission to peti-

tion for a change in the law. That right is already

guaranteed by the Constitution. See U.S. Const.-

Amend. I.

Nor does the ‘requirement’ that the TRPA

act within 180 days provide anything of sub-

stance. For one thing, it is entirely hortatory; a

political body cannot bind itself to take political

action within a specific time frame. Failure to

act within 180 days is plainly not judicially

reviewable.

* * *

That the TRPA has given some assurance that it

will consider and dispose of amendment

requests promptly makes it no more likely that

it will act on them favorably. Absent a guarantee

that amendments proposed via this special pro-

cedure are to be given substantively favored

treatment, there is no distinction whatever

between amendments proposed according to

this procedure and those considered under the

more traditional rough-and-tumble processes

employed by most legislative bodies.

The per curiam opinion thus would allow

procedure to triumph over substance: By pro-

viding a meaningless mechanism for petitioning

for legislative change, the TRPA would be able

to delay or even preclude substantive judicial

review of plaintiffs’ constitutional claim. We

should probably pause to consider what other

constitutional claims can thus be shunted away

from the courts and into the political arena, and

for how long.” App. A, 33a-36a.18

What is not mentioned nor addressed by either the

per curiam opinion or the dissent, is the magnitude of the

burden that is effectively passed to the complaining prop-

erty owners should they now be compelled to first seek

an amendment to the Regional Plan before they can have

'8 In footnote 5 of the per curiam opinion (App. A, 13a),

the Court noted:

“Likewise, we have no occasion to accept the

dissent’s darkly worded invitation to ‘consider what

other constitutional claims can thus be shunted away

from the courts and into the political arena, and for

how long.’ Post, at 1346 [App. A, 34a-35a]. Suffice it

to say that even the framers of the fifth amendment

saw the wisdom of enumerating life, liberty, and

property separately, and that few of us would put

equal value on the first and third.”

In response, Judge Kosinski observed:

“The rejoinder that life is more important than

property, per curiam op at 1338 n. 5 [App. A, 13al,

obscures the fact that both are protected by the Bill

of Rights and for that reason alone deserve solicitude

~ sather than thinly disguised contempt - from mem-

bers of the judiciary. The fact is, the Constitution

protects a variety of rights and liberties and reason-

able minds might differ as to the relative importance

of each. When we relegate certain of these to collat-

eral status by refusing to give them the full measure

of constitutional protection, we undermine the integ-

rity of the constitutional structure and hand a potent

weapon to those who may not share our vision as to

which rights trump which.” App. A, 35a.

their day in court.!9 Again, it must be kept in mind that

the Regional Plan at issue here is the culmination of a

long, contentious and costly process, during the course of

which TRPA spent literally hundreds of thousands of

dollars in undertaking environmental studies, holding

and conducting public reviews and debate, and agonizing

over the provisions of the plan. Yes, it may be true that a

property owner has a “right” to seek an amendment to

the Plan (just as any property owner does to any land use

enactment). Even so, its application for such an amend-

ment, as the Compact states, will not be “deemed com-

plete” unless it meets the standards prescribed by the

agency — standards, had the Court of Appeals inquired,

which require the property owner to prepare and pay for

costly new environmental studies to analyze the conse-

quences of any such proposed amendment.2°

In any event, the fact that aggrieved property owners

may have the right, at their expense, to submit and pur-

sue a request for an amendment to, or repeal of, the land

use enactment, clearly makes the initial taking no less

offensive. As Justice Brennan, in his oft-cited dissent in

San Diego Gas & Electric, supra, 450 U.S. 621 (1981),

19 Also, not mentioned by the per curiam opinion is the

fact that although the TRPA Compact has an express provision

setting forth a process for such plan amendments, certainly

such “processing timelines” are not as unique as the opinion

suggests. For instance, several provisions of California law

require regulatory agencies to take action on land use permit

applications within similar time periods. See, The California

Permit Streamlining Act, Cal. Gov’t Code §§ 65900-65963.1,

particularly Cal. Gov’t Code § 65950; and see, Cal. Pub. Res.

Code §§ 21100.2 and 21151.5.

20 At a minimum, assuming the per curiam “ripeness test”

is upheld as appropriate in such facial challenge cases, basic

fairness demands that the property owners ought to be given

the opportunity to show that, as a factual matter, the pursuit of

such an amendment would have been a “futile act,” thereby

excusing this ripeness criterion.

observed in an illuminating footnote, and admittedly in a

slightly different context:

“At the 1974 annual conference of the National

Institute of Municipal Law Officers in Califor-

nia, a California City Attorney gave fellow City

Attorneys the following advice:

IF ALL ELSE FAILS, MERELY AMEND THE

REGULATION AND START OVER AGAIN.

If legal preventive maintenance does not

work, and you still receive a claim attacking the

land use regulation, or if you try the case and

lose, don’t worry about it. All is not lost. One of

the extra ‘goodies’ contained in the recent [Cali-

fornia] Supreme Court case of Shelby v. City of

San Buenaventura, 10 C. 3d 110, appears to allow

the City to change the regulation in question,

even after trial and judgment, make it more

reasonable, more restrictive, or whatever, and

everybody starts over again.

La * *

See how easy it is to be a City Attorney.

Sometimes you can lose the battle and still win

the war. Good luck.” [Citing Longtin, Avoiding

and Defending Constitutional Attacks on Land Use

Regulations (Including Inverse Condemnation), in

38B NIMLO Municipal Law Review 192-193

(1975) (emphasis in original).] 450 U.S. at 655-56,

fn. 22.

If the per curiam decision remains the law of the

Ninth Circuit, how easy it will be for a public agency to

insulate itself from judicial challenge by simply adopting

some processing requirements for plan amendments. One

can hear the clever city attorney now, at the next annual

meeting of municipal law officers, explaining the new-

found trick as to how to hold off a constitutional chal-

lenge:

“Even where your city has enacted a land

use regulation which you think is likely to be

challenged, all you need to do is amend the city

procedures to set forth timelines for processing

o ee ee gme —

an amendment to such regulations. If you have

such procedures, then guess what - the burden

is shifted back to the property owner. Before he

or she can challenge the regulation, and even

though the property owner had spent a great

deal of money and time in fighting the adoption

of the regulation, nevertheless the property

owner must begin all over again, and at the

property Owner’s expense prepare a new envi-

ronmental document analyzing the changes,

submit a request for amendment or repeal, and

then have it heard and processed by the city

council (which already has made up its mind)

before the courts will allow that property owner

to file a claim for constitutional redress. In brief,

bleed ‘em until they go away.”

CONCLUSION

For all the foregoing reasons, it is requested that the

Petition for a Writ of Certiorari be granted.

Respectfully submitted,

LAWRENCE L. HOFFMAN

Counsel of Record

James K. Burau

HorFMAN, LIEN & FaAccINTO

3000 N. Lake Boulevard

Post Office Box 7740

Tahoe City, California 95730

(916) 583-8542

January 25, 1991 Counsel for Petitioners

APPENDICES

APPENDIX A

TAHOE-SIERRA PRESERVATION COUNCIL, INC., a

California nonprofit corporation and membership organi-

zation, Plaintiffs-Appellants,

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., Sacra-

mento, 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 four-

teenth amendment challenges to the defendants’ 1984

Regional Plan have been rendered moot by the defen-

dants’ revocation of the challenged plan and its replace-

ment 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”)! 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 vio-

lated their right to due process and equal protection. The

plaintiffs are divided into two groups: the first is com-

posed 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 declara-

tory and injunctive relief as well as damages. The specific

claims are as follows:

First Claim for Relief: The SEZ plaintiffs seek declara-

tory and injunctive relief against TRPA and the members

of its governing body (the individual defendants) for

' The TRPA, created pursuant to the Tahoe Regional Plan-

ning Compact, 94 Stat. 3233 (the Compact), between California

and Nevada, Pub.L. No. 91-148, 83 Stat. 360 (1969), amended

Pub.L. 96-551, 94 Stat. 3233; Cal. Gov’t Code §§ 66800-66801;

Nev. Rev. Stat. §§ 277.190-.200, is authorized to coordinate

regional planning for the Lake Tahoe Basin.

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 dam-

ages from TRPA, Nevada, and California for violations of

the taking clause. The district court dismissed as to Nev-

ada 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 plain-

tiffs 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 dis-

missed as to Nevada and California on grounds of sover-

eign 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

4a *

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 injunc.

tive relief and damages under section 1983 against all

defendants based on the claims alleged above. The dis-

trict 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. Partner-

ship), 820 F.2d 308, 312-13 (9th Cir. 1987); Aguirre v. S.S.

Sohio Intrepid, 601 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 land-

owner 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 eftected 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 argu-

ment 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 diminu-

tion 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. Sec-

ond, the defendants’ argument fails to address the full

2 On April 26, 1984, the same day TRPA adopted the 1984

Plan, the State of California brought suit against TRPA for

declaratory and injunctive relief, arguing that the plan did not

comply with the Tahoe Regional Planning Compact require-

ments. California v. Tahoe Regional Planning Agency, No.

CIVS-84-0561 EJG (E.D. Cal. 1984). On August 9, 1984, the

district court granted California’s request for a preliminary

injunction, and issued an order which “enjoined and restrained

[TRPA] from taking any action to approve any project . . . or to

approve the construction of any man-made development

within the agency’s juriSdiction,” with certain limited excep-

tions not relevant to this case. Order Granting Preliminary

Injunction at 3. This order was affirmed on appeal. California v.

Tahoe Regional Planning Agency, 766 F.2d 1308 (9th Cir. 1985).

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 te finance public

improvements that, because of the total ban on develop-

ment 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 improve-

ment, “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 improve-

ments 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 assess-

ments the plaintiffs paid were used to finance mainte-

nance 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

ever if they were to develop their property under the

1987 Plan.3

3 We address the merits of the district court’s dismissal of

Claim Six in Part V, infra.

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 adop-

tion of the 1987 Plan. It would be equaily 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 com-

plaint as moot. See In re Bunker Ltd. Partnership, 820 F.2d

at 311 (“[w]here intervening legislation has settied a con-

troversy involving only injunctive or declaratory relief,

the controversy has become moot”).

Resolution of the mootness issue eliminates the equi-

table 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 Mac-

Donald, 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 neces-

sary to keep three relevant time periods in mind. First,

there is the period from June 25, 1981 until August 28,

1983. During this time period, Ordinance 81-5 prohibited

development of any Class 1, 2, or 3 lots and of any lots in

SEZs. However, there was a limited exception on the

Nevada side of the basin which permitted TRPA to

approve construction of some single-family homes on

Class 1, 2, and 3 lots. Second, there is the period from

August 29, 1983 until April 26, 1984. During this period,

the case-by-case approval system on the Nevada side had

expired but the prohibition imposed by Ordinance 81-5

was still in effect. This amounted to a complete mor-

atorium on development for approximately eight months.

Finally, there is the period after April 26, 1984, when the

1984 Plan had been approved and was in effect (although

a federal district court had enjoined TRPA from approv-

ing any projects under the Plan). With these time periods

in mind, we address each of the defendants’ contentions

regarding ripeness.

A. Amendment of the 1984 Plan

The defendants contend that the plaintiffs should

have sought amendment of the 1984 Plan, because Article

V(a) of the Compact requires TRPA to consider requests

for amendment. We agree. The Compact specifically

requires TRPA to act upon a property owner’s request for

a change in administrative policy within 180 days. See

Compact Article V(a)(2), codified in Cal. Gov’t Code

§ 66801 (TRPA must act “within 180 days after [the

requested amendment] is accepted as complete according

to standards which must be prescribed by ordinance of

the agency”). This part of the Compact provides the

plaintiffs with an opportunity to obtain administrative

action regarding their plans for development, and offers

the same possibility regarding development as does a

system for requesting variances. Accordingly, we con-

clude that the plaintiffs were required to request that

TRPA amend the Plan before they filed this action, and

that their failure to do so renders unripe their taking

claims for the period after April 26, 1984. See Kinzli v. City

of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir. 1987) (claim for

regulatory taking is not ripe until there is a final decision,

which requires “(1) a rejected development plan, and (2)

a denial of a variance”); Herrington v. County of Sonoma,

857 F.2d 567, 569-70, amending 834 F.2d 1488 (9th Cir.

1988) (restating the Kinzli requirement but finding that it

was excused in that case by the futility doctrine).

The requirement that landowners seek a variance

before commencing a regulatory taking claim derives

from the special necessity in such cases of determining

exactly how much a land use regulation interferes with

an individual’s use of his property. MacDonald, Sommer &

Frates, 477 U.S. at 348-49, 106 S.Ct. at 2565-66; Williamson,

473 U.S. at 190-91, 105 S.Ct. at 3118-19. Because a would-

be plaintiff may escape economic injury entirely if he is

granted a variance exempting him from some or all of the

strictures written into an ordinance, his case is not ripe

10a

for adjudication until the governmental entity has denied

at least one such request. A procedure for procuring an

amendment to the regulation also presents the possibility

that a would-be plaintiff will be preserved from economic

injury. The means differ, of course: an amendment

changes the applicable regulation while a variance merely

waives some or all of the regulation in its application to

specific person or class of persons. However, regardless

of the means used, the fact remains that under either

system, the taking that will occur “by default,” i.e., if the

landowner seeks neither form nor relief, can be avoided

through positive action according to a statutorily pre-

scribed procedure. Because either procedure can be uti-

lized to mitigate or eliminate the disabilities imposed by

local land regulations, we believe either must be pursued

before a regulatory taking claim is ripe for judicial deter-

mination. In the words of the dissent, “Where such flex-

ibility is built into a law, plaintiffs should first

demonstrate that the law nevertheless does not accommo-

date their demands before they attack it as unconstitu-

tional.” Post, at 1344.

Crucial to our decision is the fact that TRPA specifi-

cally invites amendment proposals and promises action

on them within a reasonable time. This case thus differs

fundamentally from Hal! v. City of Santa Barbara, 833 F.2d

270 (9th Cir. 1987), cert. denied, 485 U.S. 940, 108 S.Ct.

1120, 99 L.Ed.2d 281 (1988). The statute in Hall was a

general rent-control ordinance, and the defendants

argued that the plaintiff’s claim was unripe because the

ordinance could be repealed. We rejected this argument.

We held that a taking claim is not precluded simply

because a governing body may, under its general author-

ity to act, amend applicable ordinances or statutes at

lla

some time in the future. 833 F.2d at 1277. Our holding

merely reflected the basic principle that government

action is not protected from judicial review by the mere

possibility that the offending government body may

someday of its own volition change its ways. Virtually all

statutes are subject to repeal or amendment, yet they are

not for that reason alone any less final, nor their effect

any less certain. However, a statute that sets forth a

specific procedure by which a person may seek to modify

or ameliorate that statute’s effect on him, and requires the

governmental entity to act on his application within a

reasonable time, presents an entirely different question.

Here, the Compact expressly provides that TRPA must

take action, within a finite and reasonable period, on any

interested party’s request for an amendment to the plan.

We find nothing in the Compact that prevents property

owners from using this amendment procedure to obtain

the same results they could obtain by way of variance;

thus, we are unable to draw any distinction between the

two forms of relief that is not purely formal.4 In short, we

4 The dissent asserts that in Herrington, “we recognized

the distinction between variances and amendments.” Post, at

1345. It points out that the Herringtons’ claims were not ren-

dered unripe by the fact that an amendment to Sonoma

County’s General Plan was available to them. However, the

basis for that conclusion was that an application for such an

amendment would have been futile in the Herringtons’ case.

857 F.2d at 569-70. Especially in view of the fact that we also

excused the Herringtons’ failure to request a variance on the

(Continued on following page)

12a

are compelled to conclude that plaintiff’s failure to utilize

such a system, barring futility, will make his claims

unripe.

In arguing that the specific provisions of Article V(a)

of the Compact do not require property owners to seek

available administrative relief before challenging the con-

stitutionality of the Regional Plan, the dissent fails to give

any practical effect to that article. The dissent remarks,

somewhat disingenuously, that “[c]itizens don’t need the

government’s permission to petition for a change in the

law,” post, at 1346, but this epigram misses the point.

Although Article V(a) does not - and certainly ought

not — “guarantee that amendments proposed via this

special procedure are to be given substantively favored

treatment,” post, at 1346 (emphasis added), the provision

does require that the complaints of aggrieved landowners

be addressed, and that action - favorable or unfavorable

— be completed no later than six months after the pro-

posed amendments are lodged with TRPA. Article V(a)

thus provides an adversely affected citizen with an effec-

tive means of submitting a specific course of conduct to

TRPA and forcing TRPA to act on his submission.

We would be among the last to deny that the consti-

tutionally protected right to petition for redress of griev-

ances is an important liberty, but we intend no

disparagement when we observe that the right to present

(Continued from previous page)

ground that a variance application would also have been futile,

there is simply no basis for asserting that Herrington requires

us to treat amendments and variances differently for ripeness

purposes.

13a

one’s views in a letter to an elected official carries with it

no means of inducing that official or anyone else in the

government to act on any specific measure. The constitu-

tional privilege simply bears little resemblance to the

statutory right granted by Article V(a), and the dissent

errs seriously in suggesting that the more specific right

“makes not the least bit of difference” and fails to “pro-

vide anything of substance,” post, at 1346. TRPA’s pro-

cedure guarantees disappointed citizens more than the

opportunity to make public suggestions that laws be

amended or repealed; it guarantees them that the Agency

will act upon their proposal and do so within six months.

Given the complexities of land use planning, and partic-

ularly the interrelatedness of each proposed use with

each other use, this period does not seem unreasonably

long to us.5 While we agree with the Supreme Court that

> Obviously a procedure designed to keep aggrieved land-

owners on ice indefinitely, or for longer than the government

could reasonably require in order to reach a final decision

under the circumstances, would present a different question

Requiring the plaintiffs to give the goverrment one last chance

before filing a regulatory taking suit in federal court will

postpone the potential vindication of their rights by somewhat

less than other state procedures that plaintiffs are unqucstion-

ably required to exhaust before they sue. See, e.g., Sinaloa Lake

Owners Associatior v. City of Simi Valley, 882 F.2d 1398, 1403 (9th

Cir. 1989) (per Kozinski, J.), cert. denied, _ U.S. __, 110 S.Ct.

1317, 108 L.Ed.2d 493 (1990).

Likewise, we have no occasion to accept the dissent’s

darkly worded invitation to “consider what other constitu-

tional claims can thus be shunted away from the courts and

into the political arena, and for how long.” Post, at 1346.

Suffice it to say that even the framers of the fifth amendment

saw the wisdom of enumerating life, liberty, and property

separately, and that few of us would put equal value on the

first and the third. -

14a

property owners need not “resort to piecemeal litigation

or otherwise unfair procedures,” MacDonald, Sommer &

Frates, 477 U.S. at 350 n. 7, 106 S.Ct. at 2567 n. 7; see also

Kinzli, 818 F.2d at 1455; the procedure at issue here places

no such burdens on the plaintiffs.

Finally, we simply do not understand why the dis-

sent would have us distinguish variances from amend-

ment requests on the ground that one is administrative

while the other is political. For one thing, we cannot see

what makes the process governed by Article V(a) political

rather than administrative. TRPA’s amendment pro-

cedure, like the hypothetical variance procedure sup-

posed by the dissent, is “defined by the challenged law

itself” and is, “by [its] nature, finite.” Post, at 1345. More-

over, the Compact sets forth certain limitations on the

permissible content of the Regional Plan, and we see no

reason not to equate these limitations with “guidelines

for what variances are permissible.” Id. Conversely, if a

political body is one that “needs no ascertainable reason

at all for changing course [and] is constrained only by the

Constitution and the principles of political account-

ability,” post, at 1345, then TRPA does not seem to qualify.

In any event, the dissent’s attempt to distinguish

variances from amendments appears to be based on a

fundamental misconception of the process by which such

decisions are made. The dissent seems to believe that

variances are the province of bureaucrats with green eye-

shades who, based solely on the principles of engineering

or mathematics, apply slide-rules to citizens’ requests;

15a

while amendments are considered by Machiavellian poli-

ticians who are concerned principally with issuing politi-

cal decisions that will advance their careers. That is

simply not the case. Variance applications frequently

raise controversial political questions which engender

substantial community division and debate; ultimately,

many are decided on broad policy grounds. Moreover,

such decisions may well be made by the very same legis-

lators who act on proposals to amend zoning legislation.

For example, in the City of Los Angeles, the loser in a

zoning variance battle has the right to appeal the decision

to the City Council, where the fifteen elected members of

that body make the final decision, subject only to the

Mayor’s right to veto their action. Los Angeles Municipal

Code §§ 12.27-12.28. Thus, the distinction relied on by the

dissent simply does not exist.

The more fundamental legal problem with the pro-

posed distinction is that it finds no support in the concept

of ripeness. The doctrine that a regulatory taking claim

“is not ripe until the government entity charged with

implementing the regulations has reached a final decision

regarding the application of the regulations to the prop-

erty at issue,” Williamson, 473 U.S. at 186, 105 S.Ct. at

3116, has nothing to do with the character of the govern-

ment entity involved. The question is rather the character

of the decision, and although the finality of the decision

depends in part upon the nature of the process by which

it may be changed, we must evaluate that process by

examining its actual features, not merely by calling it

either political or administrative. Certainly as long as the

process is limited and reasonably short ir duration, and

is guaranteed to culminate in either a “yes” ora “no,” we

l6a

believe the plaintiffs are required to pursue it. Because

the plaintiffs here failed to request an appropriate

amendment, their claims are not ripe insofar as they

concern any temporary taking that may have occurred

after the enactment of the 1984 Plan on April 26, 1984.6

B. The Case-by-Case Exception to Ordinance 81-5

Under Ordinance 81-5, an interim prohibition was

placed on any development of Class 1, 2, or 3 land after

June 25, 1981, but a case-by-case system for approving

construction of single-family homes in these areas was in

effect on the Nevada side of the Tahoe basin until August

28, 1983. Again, the Class 1, 2, and 3 plaintiffs, all of

whom own land on the Nevada side of the basin, do not

allege that any of them attempted to take advantage of

this system. Therefore, the claims of the Class 1, 2, and 3

plaintiffs for the period from June 25, 1981, through

August 28, 1983, are also unripe. In effect, then, these

plaintiffs are left with a facial challenge to an eight-month

moratorium on development from August 29, 1983 until

the adoption of the 1984 Plan on April 26, 1984. However,

the situation of the SEZ plaintiffs is quite different. Ordi-

nance 81-5 did not permit any construction in SEZs, and

there was no provision for case-by-case exceptions to this

6 The defendants also argue that the plaintiffs’ claims are

unripe because of the availability of transfer of development

rights (“TDRs”) under the 1984 Plan. In view of our conclusion

that the plaintiffs’ taking claims for the period after the effec-

tive date of the 1984 Plan are unripe, we need not decide the

merits of this contention.

17a

prohibition. Because there was no way for the SEZ plain-

tiffs to apply for building permits, their claims survive

this ripeness challenge.

The defendants argue that they cannot be held liable

for imposition of a temporary moratorium for a reason-

able period of time during which they were diligently

drafting a new land use plan. We need not determine the

continuing availability of this defense after First English.

In any event, the reasonableness of the delay and the

diligence of the government’s efforts are clearly questions

of fact that cannot be resolved at this point in the pro-

ceedings. Accordingly, the existence of the case-by-case

exception renders Claims Five and Seven unripe only in

the case of the Class 1, 2, and 3 plaintiffs, and only to the

extent that they seek damages for the period before

August 28, 1983.

C. Land Classification Challenges

The defendants also argue that the plaintiffs’ claims

are unripe because they failed to challenge the land capa-

bility classifications of their properties in the manner

provided by Ordinance 81-5. The Ordinance permits any

interested person to challenge a land capability district

classification. The plaintiffs contend that they have

always conceded that their land capability districts (and

thus their properties) were correctly classified under

TRPA’s classification scheme, and that they therefore

have no basis for seeking reconsideration of TRPA’s deci-

sions.

18a

The defendants point to language in the complaint

and in two of the plaintiffs’ affidavits criticizing the accu-

racy of the classification scheme, known as the “Bailey

System.” However, reading these criticisms in context, we

think it fair to conclude that the plaintiffs allege only that

the Bailey System is overbroad, and thus deficient, inso-

far as it serves as basis for the prohibitions imposed by

TRPA in the 1981 ordinance. They argue that because the

Bailey System classifies large areas containing many lots,

it does not reflect the characteristics of a particular lot

accurately enough to justify a prohibition on develop-

ment of that lot. Hence, the plaintiffs challenge only the

reasonableness of using the Bailey System to prohibit

development on particular lots without any on-site

inspection of the lots in question; they do not challenge

the accuracy of TRPA’s application of the Bailey System

to any particular land capability districts or the lots situ-

ated therein. Consequently, it wouid serve no purpose to

require the plaintiffs to challenge the individual classi-

fications of their properties, classifications with which

they have no disagreement. See Whitney Benefits, Inc. v.

United States, 752 F.2d 1554, 1558 (Fed. Cir. 1985) (“the

exhaustion doctrine does not require [the plaintiffs] to do

anything so absurd as to pursue to the bitter end .. . an

attack on a state decision denying them a permit to mine,

which decision they believe to have been correct”).

Although this interpretation of the plaintiffs’ allega-

tions adequately explains why they had no duty to use

the reclassification provisions of Ordinance 81-5, it raises

an additional question: whether the plaintiffs were

required to propose an amendment to the plan that

19a

preceded the 1984 Plan,’ either refining or abolishing the

Bailey System. Arguably, the plaintiffs’ dissatisfaction

was as much with the Bailey System itself as with the

prohibitions of Ordinance 81-5;8 in line with our discus-

sion in Part III.A supra, one could conclude that the

plaintiffs were obliged to propose an amendment to the

1971 Plan before challenging the Bailey System in court.

However, we need not resolve this issue, because we

believe that offering a proposed amendment during a

time when TRPA was in the process of drafting a new

plan would have been futile. Whether the piaintiffs were

injured by the Bailey System itself or only by the prohibi-

tions contained in Ordinance 81-5 (which were based on

the classifications made under the Bailey System), it is

certain that they were not injured at all until Ordinance

81-5 went into effect on June 25, 1981. From that time

until the 1984 Plan was adopted (after which date the

plaintiffs’ claims were unripe for other reasons, as we

have already held), TRPA was trying to resolve the very

? The Bailey System was apparently not adopted until

1974, and thus could not have been in the original version of

the 1971 Plan, which was still in use in 1980. The record does

not show whether the Bailey System was later incorporated

into the 1971 Plan, but we assume for the purposes of our

discussion that it was, and that it would therefore be possible

to reform the Bailey System by amending that Plan.

5 If the dissatisfaction related to the ordinance, there

would be no need to request an amendment prior to filing an

action. The amendment requirement stems from Article V(a) of

the 1980 Compact, providing for amendment of plans. There is

no comparable provision with respect to amendment of ordi-

nances.

20a

issues to which any proposed amendment would have

been addressed. No purpose would have been served by

asking TRPA to decide those questions earlier than it did.

We believe the plaintiffs were entitled to allow TRPA to

present its first draft for public discussion before attempt-

ing to improve upon TRPA’s work.

D. “Buyout” Programs

The defendants’ final contention is that the plain-

tiffs’ claims are unripe because the United States, Califor-

nia, and Nevada have each instituted “buyout” programs

to purchase certain environmentally sensitive lots in the

Lake Tahoe area. We fail to see how any of these pro-

grams make the effect of TRPA’s actions any less certain.

First, the California program is simply irrelevant because

it makes no provision for the purchase of any of the

properties at issue in this case, all of which are located in

Nevada. Second, the Nevada program was not enacted

until after the plaintiffs filed their lawsuit - indeed, after

the district court disposed of the plaintiffs’ claims. Those

claims were therefore ripe when filed.° Finally, the fed-

eral buyout program, which was in existence during the

relevant time period and which could conceivably result

in some of the plaintiffs’ properties being purchased, is

administered by an entirely different sovereign; it is not

“compensation” (just or otherwise), either from TRPA or

from either of the states that are parties to the Compact.

9 We express no view of the effect this subsequently

enacted statute may have upon the merits of the plaintiffs’

case.

21a

The plaintiffs’ remaining claims are therefore not ren-

dered unripe by the existence of these buyout programs.

IV. TRPA’s Immunity

The district court held, under the authority of Jacob-

son v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1358

& n. 7 (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),

that TRPA was immune from monetary liability for

inverse condemnation. See Tahoe-Sierra Preservation Coun-

cil, Inc. v. Tahoe Regional Planning Agency, 611 FSupp. 110,

116-17 (D. Nev. 1985). In Jacobson we reasoned that “TRPA

was given only the power to regulate, not the power to

condemn,” id. at 1358 n. 7, and therefore could not be

liable in damages for inverse condemnation This reason-

ing is at odds with First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct.

2378, 96 L.Ed.2d 250 (1987), wherein the Court stated:

“While the typical taking occurs when the government

acts to condemn property in the exercise of its power of

eminent domain, the entire doctrine of inverse condem-

nation is predicated on the proposition that a taking may

occur without such formal proceedings.” Id. at 316, 107

S.Ct. at 2386. As the Court held, even a temporary regula-

tion of land may result in a substantial burden to land-

owners, and “[w]here this burden results from

governmental action that amounted to a taking, the Just

Compensation Clause of the Fifth Amendment requires

that the government pay the landowner for the value of

the use of the land during this period. Invalidation of the

Ordinance .. . is not a sufficient remedy to meet the

demands of the Just Compensation Clause.” Id. at 319,

107 S.Ct. at 2388 (citation omitted).

First English does not squarely overrule Jacobson,

because the defendant in First English, unlike TRPA, did

in fact possess the power of condemnation; it merely

chose not to exercise it. Any attempt to rely on this

distinction would, however, unavoidably conflict with

the reasoning of First English: Governments cannot avoid

the strictures of the Constitution through the expedient of

delegating regulatory powers, but not the power of emi-

nent domain, to independent government entities that

would then be free to zone away all use of private prop-

erty without fear of liability. As the Court observed, “[iJt

is the Constiiution that dictates the remedy for inter-

ference with property rights amounting to a taking.” 482

U.S. at 316 n. 9, 107 S.Ct. at 2386 n. 9. After First English,

any government entity that regulates away all economi-

cally viable use of property must be prepared to pay just

compensation. We therefore reverse the district court’s

dismissal on immunity grounds (as against TRPA only) of

the ripe portions of Claims Two and Five, and, to the

extent they request damages against TRPA, the ripe por-

tions of Claims Six and Seven.

V. The District Court’s Dismissal of Claim Six

The district court dismissed Claim Six on the author-

ity of the lower court opinion in Furey v. City of Sacra-

mento, 592 F.Supp. 463 (E.D. Cal. 1984), aff'd, 780 F.2d 1448

(9th Cir. 1986). The court reasoned that Claim Six seeks to

recover both the benefit of use of the improvements and

the actual amount of the assessments paid, and that these

23a

are merely two of the “sticks” making up the “bundle of

rights” that property ownership comprises. Since it

viewed Claim Six as “merely an attempt to subdivide the

property rights of plaintiffs” and obtain double compen-

sation, the court granted the defendants’ motion to dis-

miss. Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 611 F.Supp. 110, 118 (D. Nev.

1985).

Our holding in Furey is at cross-purposes with the

district court’s conclusion here. While we indicated that

the ability to use public improvements financed by

assessments is one of the attributes of property owner-

ship that cannot be isolated from the property itself for

purposes of a taking claim, 780 F.2d at 1453-54 n. 4, we

held that landowners could state a claim for reimburse-

ment of assessments independent of any claim for taking

of the land itself. Id. at 1453-54 n. 4, 1455. Under Furey,

therefore, we must reverse the district court’s dismissal of

Claim Six.

However, although Furey aliows recovery under cir-

cumstances such as those alleged here, it also suggests

that any recovery of assessments should be from the

party that controls the assessment fund, rather than from

the government entity that enacted the zoning ordinance

that caused the alleged taking. Plaintiffs do not specify in

their complaint who collected the assessments. They do,

however, allege that “[a] significant portion of the

expenses of [the public works projects] was funded by

assessments against private properties in the Lake Tahoe

Basin levied pursuant to applicable laws of [Nevada and

California].” If TRPA collected assessments, the appropri-

ate remedy would lie with that entity. If, on the other

24a

hand, some other entity was responsible for collecting the

assessments, then it would be inappropriate to require

TRPA to provide the refund. We therefore reinstate Claim

Six only to the extent that it seeks reimbursement for

assessments actually paid by the plaintiffs to TRPA.’° If

some other government body collected the assessments,

then on remand the plaintiffs may seek leave to amend

their complaint to name the appropriate entity."

VI. Conclusion

As to:

Claims One, Three, and Four: The district courtss

rulings are vacated and the district court is instructed to

dismiss them as moot.

Claim Two: The district court’s dismissal of the claim

against TRPA is reversed with respect to the period

before April 26, 1984; the district court’s dismissal with

respect to the remainder of this claim is affirmed.

Claim Five: The district court’s dismissal of the claim

against TRPA is reversed with respect to the period after

August 29, 1983 and before April 26, 1984; the dismissal

of the remainder of this claim is affirmed.

Claim Six: The district court’s dismissal is reversed

with respect to assessments actually paid by the plaintiffs

10 Of course, any compensation the plaintiffs receive on

their taking claim would have to be offset by any reimburse-

ment they receive under Furey.

11 We express no view on any of the possible statute of

limitations issues that might be raised.

25a

to TRPA in order to finance projects and expenditures

from which the plaintiffs could derive no benefit even if

they were to develop their property under the 1987 Plan.

The district court’s rulings with respect to the remainder

of the claim are vacated and the district court is

instructed to dismiss those portions as moot.

Claim Seven: The district court’s dismissal of the

plaintiffs’ claim against TRPA for damages accruing after

April 26, 1984 is affirmed; the district court’s dismissal of

the Class 1, 2, and 3 plaintiffs’ claim against TRPA for

damages ‘ .cruing prior to August 29, 1983 is affirmed;

and the district court’s dismissal of the remaining por-

tions of the claim seeking damages against TRPA is

reversed. The district court’s rulings with respect to the

remainder of the claim are vacated and the district court

is instructed to dismiss those portions as moot.

FLETCHER, Circuit Judge, special concurrence:

I specially concur in the majority opinion. I am in full

agreement except for the rationale it adopts in section

III.A to deny damages in the period post April 26, 1984

and its conclusion in section II on the importance to this

case of a court injunction against TRPA in other litigation.

Since I conclude plaintiffs have stated no claim for which

relief can be granted, I would not reach the ripeness

issue. Because court orders prevented the 1984 Plan from

going into effect, plaintiffs cannot state or prove that the

Plan caused them injury.

The effective date of the Plan was April 26, 1984. The

State of California and the League to Save Lake Tahoe

sued TRPA on April 26 and 27, 1984, in the United States

District Court for the Eastern District of California. A

ee Ll

26a

scant few days later, on May 1, the court issued a tempor-

ary restraining order prohibiting TRPA from taking any

action to approve building projects and ordered TRPA to

show cause why a preliminary injunction should not

issue. Order to Show Cause and Temporary Restraining

Order at 3, California v. Tahoe Regional Planning Agency,

No. CIV. S-84-0561 EJG (E.D. Cal. May 1, 1984).! The

order initially was to expire on May 31 but was extended

until June 11. Order Granting Preliminary Injunction at 2

(Aug. 9, 1984). On June 11, the court held a hearing on the

order to show cause. By memorandum decision dated

June 15, the court granted a preliminary injunction con-

taining the same restrictions as the TRO and extending

the TRO until the court’s formal order granting the

injunction could be issued. Memorandum of Decision

June 15, 1984); Order Granting Preliminary Injunction at

2. The court’s subsequent August 9 order granting the

injunction contained the same restrictions as the TRO and

June 15 memorandum decision: TRPA was enjoined from

taking any action to approve any construction project.

The TRO and injunction, not the Plan, prevented the

plaintiffs from building on their property. The TRO and

the injunction forbade even the limited development

allowed under the Plan. The plaintiffs claim that TRPA’s

wrongdoing leading to the injunction should not protect

it from liability here. However, the court granted the

injunction based on California’s and the League’s claim

' In this and subsequent orders, the court made an excep-

tion for “circumstances of imminent threat to public health,

safety and welfare.” Order to Show Cause and Temporary

Restraining Order at 3.

27a

that the Plan was not restrictive enough: it would permit

construction of single-family residences in excess of Com-

pact limits and inflict environmental damage, and the

Plan also did not abide by the Compact’s stricter pro-

cedural requirements for project approval. California v.

Tahoe Regional Planning Agency, 766 F.2d 1308, 1312 (1985).

TRPA’s error was not that claimed by plaintiffs here, that

is, being too restrictive, but was instead being too lenient.

In short, the “wrongdoing” plaintiffs claim here was not

the “wrongdoing” that triggered the injunction.

Because the court imposed the moratorium, TRPA’s

adoption of the 1984 Regional Plan was not an actionable

cause of plaintiffs’ claimed injury. The TRO issued only

five days after the Plan’s effective date, effectively pre-

venting the 1984 Plan from ever being implemented.

Amendment of the Plan to meet the California court’s

objections would not have freed the lots for develop-

ment.2 The esoteric distinctions between plan amend-

ments and variances, and between quasi-judicial and

legislative actions of local governmental bodies, can and

should be avoided in this case.* I would affirm simply on

the basis I have indicated.

2 Although there were a few days between April 26, when

the Plan took effect, and May 1, when the temporary restrain-

ing order took effect, the plaintiffs cannot claim that they could

have completed all the necessary prerequisites to building,

including getting a TRPA permit, within those few days.

3 If I were to address the “ripeness” issue, | simply would

hold that transfer of the plaintiffs’ development rights granted

under the 1984 Plan was a prerequisite to any claim against

(Continued on following page) _

28a

KOZINSKI, Circuit Judge, dissenting” in part:

I join all but section III.A. of the per curiam opinion.

That section equates a request for amendment with a

request for a variance, and concludes that plaintiffs’ tak-

ing claim for the post-1984 period is not ripe because

plaintiffs did not request an amendment to the Plan. This

notion is contrary to prior case law and overlooks a

fundamental distinction between variances and amend-

ments.

In the regulatory area, not all deprivations of prop-

erty amount to taking; compensation is required for only

those deprivations that go “too far” and have the same

effect as an appropriation of the property through emi-

nent domain or physical possession. See Williamson

County Regional Planning Comm’‘n v. Hamilton Bank, 473

U.S. 172, 199, 105 S.Ct. 3108, 3123, 87 L.Ed.2d 126 (1985);

Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124,

98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). It is

(Continued from previous page)

TRPA, rendering any claim unripe. See majority opinion, p.

1339 n. 6. Lack of causation makes it unnecessary for me to do

sO.

* Although, in the time-honored tradition, this is styled a

dissent, it is more in the nature of a disagreement. Because

section III.A of the per curiam opinion commands only one

vote, it is not, of course, a holding of this court. Nevertheless,

since two members of the panel find it necessary to reach the

issue of whether plaintiffs’ post-1984 claim is ripe, it is appro-

priate to set forth our disagreement regarding how that issue

should be resolved.

er ee —

29a

therefore critical that a reviewing court know precisely

what deprivation a regulation has created. “A court can-

not determine whether a regulation has gone ‘too far’

unless it knows how far the regulation goes.” MacDonald,

Sommer & Frates v. County of Yolo, 477 U.S. 340, 348, 106

S.Ct. 2561, 2565, 91 L.Ed.2d 285 (1986). Knowing how far

the regulation goes requires that “the government entity

charged with implementing the regulations [have]

reached a final decision regarding the application of the

regulations to the property at issue.” Williamson, 473 U.S.

at 186, 105 S.Ct. at 3116.

Where the regulation or ordinance in question allows

for variances, a “final decision” requires that the agency

charged with implementing the law have turned down at

least one request for a variance. See, e.g., Williamson, 473

U.S. at 188-89, 193-94, 105 S.Ct. at 3117-18, 3120; Kinzli v.

City of Santa Cruz, 818 F.2d 1449, 1454, amended 830 F.2d

968 (9th Cir. 1987); Herrington v. County of Sonoma, 834

F.2d 1488, amended 857 F.2d 567, 569-70 (9th Cir. 1988).

This rule makes some sense. A variance is a means by

which a land use regulation can be tailored to meet

individual needs. Where such flexibility is built into <

law, plaintiffs should first demonstrate that the law nev-

ertheless does not accommodate their demands before

they attack it as unconstitutional.

The per curiam opinion would extend the variance

rule beyond its sensible bounds, by requiring plaintiffs to

have asked the TRPA to amend the Plan before coming to

30a

court. This extension is at odds with both our prior case

law and common sense.

A. In Hall v. City of Santa Barbara, 833 F.2d 1270,

1277 (9th Cir. 1987), we held that a taking claim is not

precluded because a governing body may amend applica-

ble laws at some time in the future. “A governmental

taking can always be undone if the government so

chooses. That as [sic] never defeated a taking claim.” Id.

(citing several examples).

In Herrington v. County of Sonoma, 834 F2d 1488,

amended at 857 F.2d 567 (9th Cir. 1988), we recognized the

distinction between variances and amendments. In that

case, the Herringtons did not request a variance from the

county. Nonetheless, we held that this failure did not

render their taking claim unripe because, under Califor-

nia law, the variance they needed couldn’t have been

granted anyway. 857 F.2d at 569-70. A variance request

was therefore not required, and the Herringtons met the

finality requirement because “the only means of obtaining

approval of [their] proposal was through a General Plan

amendment.” Id. at 570 (emphasis in original).! We

! The per curiam’s attempt to torture the holdings in Kinzli

and Herrington into supporting its position, per curiam op at

1337, does not survive a careful review of those cases. The

error lies in a failure to recognize that when Kinzli (and Her-

rington by incorporation) require the landowner to have sub-

mitted a “development plan,” they are merely saying that the

owner must tell the planning board what he woula like to do

with his property. This has nothing to do with requesting that

the governing law be amended.

The per curiam opinion reaches a conclusion by sleight of

hand: “Especially in view of the fact that we also excused the

(Continued on following page)

3la

imposed no additional requirement that the Herringtons

attempt tc have the plan amended. Yet the per curiam

opinion would do precisely this - and create a square

conflict with our prior decisions in Hall and Herrington.

B. The per curiam opinion seeks to distinguish Hall

based on the fact that the Compact here allows land

owners to ask for amendments and requires action by the

TRPA within 180 days. See per curiam op at 1337-1338;

Compact Article V(a)(2). The per curiam opinion per-

ceives no difference between the amendment procedure

and the variance procedure. However, a difference there

is, and it is fundamental.

A. decision denying a variance is final, whereas a

decision not to amend a law never is. This is because a

request for an amendment is directed to a wholly differ-

ent process than a request for a variance. A variance may

be granted or denied according to an administrative pro-

cess defined by the challenged law. itself. Administrative

processes are, by their nature, finite; so long as the gov-

erning ordinance or regulation remains unchanged,

(Continued from previous page)

Herringtons’ failure to request a variance on the ground that a

variance application would also have been futile, there is sim-

ply no basis for asserting that Herrington requires us to treat

amendments and variances differently for ripeness purposes.”

Id. (emphasis omitted). But this is precisely the contrary of

what Herrington says. What we held in Herrington is that once

it is clear that the proposed development plan does not fit

within the governing law, the owner has exhausted and need

not go the next step of asking for a change in the law. Far from

treating variances and amendments as equivalent, Herrington

treated them as antithetical.

32a

denial of a variance acts as a bar to further requests of the

same type. Moreover, the governing law sets guidelines

for what variances are permissible. It is therefore possible

for the government entity charged with implementing the

regulation to give plaintiffs a “final decision” as to

whether their desired land use will be allowed under

existing law. Indeed, when it is clear that the governing

law does not permit the kind of variance plaintiffs need,

they needn’t even ask. Herrington, 857 F.2d at 569-70.

An amendment, on the other hand, requires an exer-

cise of political judgment. Political processes are, by their

nature, infinite. A change in the makeup of the legislative

body, a shift in the political winds, or even a change in

attitude based on further experience or additional wis-

dom, may be a sufficient reason for a political body to

change its mind. In fact, a political body needs no ascer-

tainable reason at all for changing course; it is con-

strained only by the Constitution and the principles of

political accountability. There is thus no way for a court

to say that a legislative process has come to rest with

respect to a challenged law.?

2 Granted, at the local government level the distinction

between legislative and administrative action is not as clear-

cut as at the state or federal level. But, the per curiam’s

trivialization of the issue notwithstanding, the distinction has

very significant consequences. For example, when the mem-

bers of a local governing body act legislatively, they are enti-

tled to absolute immunity, Lake Country Estates, Inc. v. TRPA,

440 U.S. 391, 394, 406, 99 S.Ct. 1171, 1173, 1179, 59 L.Ed.2d 401

(1979) (holding that to the extent that members of the TRPA

acted legislatively in adopting a land use ordinance, they were

(Continued on following page)

———<—

33a

The per curiam opinion suggests that a court could

excuse further amendment requests on the theory that

such requests would be futile. See per curiam op at 1337

(stating that “barring futility,” a plaintiff’s failure to uti-

lize the amendment procedure renders his claim unripe).

But how does one determine futility? Is it ever possible to

say that a political institution will fail to change its mind

about an amendment that it has already rejected? Are

courts even competent to render such a judgment? To

require plaintiffs to demonstrate that a governing body

has made a final decision about what amendments it will

‘allow is to preclude judicial review altogether, as each

day brings a new opportunity for the legislature, in its

wisdom, to change the law.3

It makes not the least bit of difference that the Com-

pact here establishes a formalized procedure for propo-

sing amendments. Citizens don’t need the government's

permission to petition for a change in the law. That right

(Continued from previous page)

entitled to absolute immunity). When they act administratively,

however, they are only entitled to qualified immunity. Cinevi-

sion Corp. v. City of Burbank, 745 F.2d 560, 577-78, 580 (9th Cir.

1984). By suggesting that it’s all the same ball of wax, we

would not only deny a distinction we have held relevant in

prior cases, but also undermine the absolute immunity here-

tofore enjoyed by local government officials acting in a legisla-

tive capacity.

3 Perhaps the per curiam opinion is suggesting that only

one request for amendment is required. But what’s the princi-

pled basis for stopping there? Having once failed to persuade a

legislative body to adopt a desired amendment, a landowner

will still be faced with the possibility that the next attempt will

be successful. When is enough, enough?

34a

is already guaranteed by the Constitution. See U.S.

Const., Amend. I.

Nor does the “requirement” that the TRPA act within

180 days provide anything of substance. For one thing, it

is entirely hortatory; a political body cannot bind itself to

take political action within a specific time frame. Failure

to act within 180 days is plainly not judicially reviewable.

Thus, the characterization of the statute as “an effective

means of submitting a specific course of conduct to TRPA

and forcing TRPA to act,” per curiam op at 1337, sounds

reassuring, but what does it mean? Although the per

curiam opinion talks confidently about how landowners

are given a means of “forcing the TRPA to act,” it does

not explain just how landowners would go about doing

such forcing if the TRPA chose not to act.

In any event, I don’t see how the 180-day require-

ment distinguishes this case from Hall and Herrington.

That the TRPA has given some assurance that it will

consider and dispose of amendment requests promptly

makes it no more likely that it will act on them favorably.

Absent a guarantee that amendments proposed via this

special procedure are to be given substantively favored

treatment, there is no distinction whatever between

amendments proposed according to this procedure and

those considered under the more traditional rough-and-

tumble processes employed by most legislative bodies.

The per curiam opinion thus would allow procedure

to triumph over substance: By providing a meaningless

mechanism for petitioning or legislative change, the

TRPA would be able to delay or even preclude substan-

tive judicial review of plaintiffs’ constitutional claim. We

35a

should probably pause to consider what other constitu-

tional ciaims can thus be shunted away from the courts

and into the political arena, and for how long.

The rejoinder that life is more important than prop-

erty, per curiam op at 1338 n. 5, obscures the fact that

both are protected by the Bill of Rights and for that

reason alone deserve solicitude — rather than thinly dis-

guised contempt - from members of the judiciary. The

fact is, the Constitution protects a variety of rights and

liberties and reasonable minds might differ as to the

relative importance of each. When we relegate certain of

these to collateral status by refusing to give them the full

measure of constitutional protection, we undermine the

integrity of the constitutional structure and hand a potent

weapon to those who may not share our vision as to

which rights trump which.

36a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

The TAHOE-SIERRA CV-R-84-257-ECR

PRESERVATION

COUNCIL, INC., a California ORDER

non-profit corporation and [Entered May 10,

membership organization, et al., 1985]

Plaintiffs,

The TAHOE REGIONAL

PLANNING AGENCY,

a separate legal entity

created pursuant to an

interstate Compact between

the States of California and

Nevada, et al.,

Defendants.

Lake Tahoe, a unique high Sierra mountain lake and

the dominant natural feature of the Tahoe basin, is losing

its most valued quality, its pristine clarity. In recognition

of this deterioration, the states of Nevada and California

and the United States Congress ratified the Tahoe

Regional Planning Compact (hereinafter Compact). The

Compact is designed to protect, preserve, and enhance

the Lake Tahoe Basin. See Tahoe Regional Planning Com-

pact, Pub.L. 91-148, 83 Stat. 360, amended 1980 Pub.L

96-551, 94 Stat. 3233, NRS 277.200, West’s Ann.Cal.Gov.

Code, § 66801. In order to protect the natural beauty and

economic productivity of the region, the Compact estab-

lishes a single agency, the Tahoe Regional Planning

37a

Agency (hereinafter TRPA), to coordinate and regulate

development and use of properties in the Tahoe basin.

Pursuant to its mandate under the Compact, TRPA

adopted a regional plan which includes among other

sections, a section dealing with land-use protection and

development.!

Followirg the adoption of the 1984 Regional Plan,

plaintiffs, the Tahoe-Sierra Preservation Council and 364

named individuals (hereinafter Council),2 brought suit

against TRPA, the members of TRPA, and the states of

Nevada and California.

The gravamen of the particular claims of Council's

complaint is that TRPA’s regional plan, adopted April 26,

1984, through ordinances, regulations, and prohibitions,

deprives them of their property without just compensa-

tion in violation of the Fifth and Fourteenth Amendments

to the United States Constitution.* The theories relied

upon by council and the relief sought in its Complaint is

as follows:

First Claim for Relief

Alleges that in violation of the Fifth and

Fourteenth Amendments of the Constitution,

the Regional Plan precludes SEZ-plaintiffs* from

making any reasonable or practical use of their

property. Council seeks injunctive relief to pro-

hibit TRPA from enforcing the provisions of the

Regional Plan.

Second Claim for Relief

Alleges that the provisions of the Regional

Plan constitute a taking of SEZ property under

the Fifth and Fourteenth Amendments of the

Constitution. Council seeks just compensation.

38a

Third Claim for Relief

Allegations and relief same as First Claim

for Relief except applied to Class 1, 2, 3 plain-

tiffs.°

Fourth Claim for Relief

Alleges that the Regional Plan’s restrictions

deny Class 1, 2, 3 plaintiffs equal protection.

Council seeks injunctive relief.

Fifth Claim for Relief

Allegations and relief same as the Second

Claim for Relief except applied to Class 1, 2, 3

plaintiffs.

Sixth Claim for Relief

Alleges that the provisions of the Regional

Plan constitute a taking of plaintiffs’ benefits of

utility services and assessment payments. Coun-

cil seeks just compensation.

Seventh Claim for Relief

Alleges that TRPA inversely condemned

plaintiffs’ property under 42 U.S.C. § 1983.

Council seeks injunctive relief against TRPA and

monetary damages from all defendants.

California, Nevada, and TRPA move this Court to

dismiss Council’s complaint pursuant to Fed.R.Civ.P.

12(b) (6). The motions to dismiss attack the complaint for

its purported failure to state a claim upon which relief

can be granted. In support of its motion to dismiss,

Nevada argues that: (1) the complaint is time barred; (2)

the Eleventh Amendment bars any claims for damages;

(3) Nevada cannot be held liable for assessments made by

other government entities; and (4) when preventing harm

39a

to the environment, greater restrictions than norma! are

available to a regulating agency.

California argues if support of its motion that: (1) the

Eleventh Amendment bars any claims for damages; (2)

the complaint is time barred; (3) Council has failed to

exhaust administrative remedies; (4) California is not lia-

ble for any alleged TRPA activns; (5) TRPA need not

comply with due process; (6) TRPA’s Regional Plan com-

plies with substantive due process; (7) TRPA’s restrictions

do not violate equal protection; and (8) there has been no

unconstitutional taking of plaintiffs’ properties.

Finally, TRPA argues: (1) TRPA members® are

immune from suit; (2) Council fails to present a concrete

controversy and has failed to exhaust administrative

remedies; (3) damages for inverse condemnation are not

cognizable against TRPA; (4) the Regional Plan is a valid

exercise of power; (5) Council erroneously subdivided the

components of plaintiffs’ property rights; (6) the facts of

this case do not support monetary damages under 42

U.S.C. § 1983; (7) the entire complaint is time barred; (8)

plaintiffs were not denied due process; and (9) TRPA did

not act in excess of its authority.

In support of several issues, defendants rely upon

certain matters extrinsic to their motions to dismiss.

Those issues will be treated as motions for summary

judgement pursuant to Fed.R.Civ.P. 56-7 This order, there-

fore, will only address: (1) whether damages for inverse

condemnation are cognizable against TRPA, and; (3)

whether Council’s argument that deprivation of utility

benefits and assessments paid state a claim for which

relief may be granted.

40a

For the purpose of the motions to dismiss, this Court

must accept as established the well pleaded facts of the

complaint. See Collins v. Hardyman, 341 U.S. 651, 652

(1951). We must deny the motions unless it can be said

that plaintiffs can prove no set of facts in support of their

claims. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). With

this standard in mind, we turn to the issues presented.

I. Does the Eleventh Amendment bar Council's money claims

against Nevada and California

Both Nevada and California base their motions to

dismiss in part on an argument that they are immune

from a suit for monetary damages because of the Elev-

enth Amendment. Council counters with an allegation

that both Nevada and California have waived their sover-

eign immunity to be sued in federal court over all matters

arising from TRPA actions.

The Eleventh Amendment provides:

“The judicial power of the United States

shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against

one of the United States by citizens of another

state, or by citizens or subjects of any foreign

state.”

U.S. Const. Amend. XI. Absent a state waiver, the Elev-

enth Amendment protects states from suits brought in

federal courts by her own citizens as well as by citizens of

another state. Edelman v. Jordan, 415 U.S. 651, 663 (1974);

Hans v. Louisiana, 134 U.S. 1, 10 (1890).

Nevada has not waived its eleventh amendment

immunity. See NRS 41.031 (3);8 O’Connor v. Nevada, 686

4la

F.2d 749, 750 (9th Cir. 1982), cert. denied 459 U.S. 1071

(1982). Similarly, California has not generally waived its

immunity. See Yuan Jen Cuk v. Lackner, 448 F.Supp. 4, 8

(N.D. Calif. 1977) (three-judge court). Thus, Nevada and

California are generally protected from money judgments

by the Eleventh Amendment. See Ford Motor Co. v. Dep't of

Treasury of Indiana, 323 U.S. 459, 464 (1945).

Council argues that even though states are generally

immune from suit under the Eleventh Amendment, Cali-

fornia and Nevada have waived their sovereign immu-

nity. In support of its waiver argument, Council asserts

that the recent 1980 amendments to the TRPA Compact

waived any Eleventh Amendment immunity Nevada and

California may have enjoyed.? Nevada and California

assert that neither state waived their sovereign immunity

for actions arising from TRPA, nor was there any intent to

do so.

A sovereign’s immunity may be waive and a state

may consent to suit against it in federal court. See Penn-

hurst State School & Hospital v. Halderman, 104 S.Ct. 900,

907 (1984). That consent, however, must be unequivocally

expressed. Id.!9 The state’s immunity stems from a sol-

emn recognition of the vital role that the doctrine of

sovereign immunity plays in our federal system. Id. In

evaluating whether a waiver has been made by a state,

this Court is guided by the standard enunciated in Edel-

man v. Jordan: “In deciding whether a State has waived its

constitutional protection under the Eleventh amendment,

we will find waiver only where stated ‘by the most

express language or by such overwhelming implications

from the text as [will] leave no room for any other reason-

able construction.’ ” Edelman, 415 U.S. at 673. (citation

42a

omitted). Thus, it is with this standard in mind that we

examine the TRPA Compact to determine whether there

is an unequivocal waiver of immunity.

The compact was amended in 1980. Council argues

that those amendments regarding all substantive provi-

sions of the Compact demonstrates an express waiver of

any Eleventh Amendment claim for immunity. Council

places heavy emphasis on the key role California and

Nevada play in TRPA.

Specifically, Council points to Article VI(j) of the

Compact to support its waiver argument. Council’s

reliance on an article which merely establishes subject

matter jurisdiction, venue, statute of limitations, and

standard of review principles for litigation brought under

the Compact is misplaced. Council fails to address the

fact that there is no express waiver of the states’ immu-

nity in Article VI(j).11 Despite the Supreme Court's clear

mandate that all Eleventh Amendment waivers be

expressed unequivocally, Council urges this Court to infer

a waiver based upon the states’ intrinsic involvement in

the Compact and the Compact’s provisions for litigation.

This Court declines to do so. While it may be true that

Nevada and California expanded their roles and involve-

ment in TRPA by the 1980 amendments, this involvement

does not constitute an equivocal waiver. ’

Finally, relying on Petty v. Tennessee-Missouri Bridge

Comm'n, 359 U.S. 275 (1959), Council further attempts to

support its waiver argument. Council points to language

the Petty court found to be a waiver and urges this Court

to similarly find the language in the Compact a waiver.

The Ninth Circuit specifically addressed and rejected this

43a

argument in Jacobson v. Tahoe Regional Planning Agency,

566 F.2d 1353, 1361-1362 (1997) aff'd in part, rev'd in part on

other grounds sub nom Lake Country Estates v. TRPA, 440

U.S. 391 (1979).

In Petty, the Court relied upon express provisos

added by Congress, which when read in conjunction with

the sue and be sued clause in the Compact, reserved the

jurisdiction of the federal courts in matters arising from

the Compact. Petty, 359 U.S. at 281-282. There was no

express proviso attached by Congress when it approved

the 1980 amendments to the TRPA Compact. See Pub.L.

96-551. As the Ninth Circuit points out, absent such a

proviso, the immunity waiver must be found in the com-

pact itself. Jacobson, 566 F.2d at 1362. The 1980 amend-

ments relied upon by Council do not support a different

result from Jacobson. In Jacobson, the Ninth Circuit found

that, at best, the provision for bringing suit in either state

or federal court was ambiguous and thus insufficient to

constitute a waiver of immunity.!? The current provision

is similarly ambiguous. The Compact now provides that

legal actions arising out of or alleging a violation of the

provisions of the Compact may be filed in the appropriate

courts of California and Nevada and of the United States.

See Article VI(j)(1). As with the reference to actions

brought in the federal court of the original compact (Arti-

cle VI(b)), the reference to a suit being filed in an appro-

priate court of the United States is admittedly

ambiguous. Nevertheless, when read in conjunction with

Article II(a) which continues to provide that the TRPA is

separate legal entity, this Court finds no waiver of immu-

nity. See Jacobson, 566 F.2d at 1362. There has been no clear

44a

expression of congressional intent to abrogate the immu-

nit; granted and no clear expression of the states’ consent

to the abrogation. Such expression must be evidenced

before this Court may find a waiver. See Edelman v. Jordan,

415 U.S. at 673; Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173 n.5

(9th Cir. 1984). The 1980 Amendments to the Compact do

not change the result of Jacobson. California and Nevada

do not waive their eleventh amendment immunity.

Thus, Nevada’s and California’s motions to dismiss

will be granted for the monetary damages sought by

Council in the Second and Fifth Claims for Relief.

Relying on the Eleventh Amendment, Nevada and

California also move this Court to dismiss Council’s

claim under 42 U.S.C. § 1983. An action for inverse con-

demnation is cognizable under the federal civil rights

statute. See MacLeod v. County of Santa Clara, 749 F.2d 541,

544 (9th Cir. 1984). However, even though Council states

a cognizable claim under § 1983, the eleventh amendment

immunizes Nevada and California and the claim must be

dismissed.

As the Ninth Circuit holds in Windward Partners v.

Ariyoshi, 693 F.2d 928, 929 (9th Cir. 1982):

“The framing of plaintiff’s claims as a § 1983

action does not change our conciusion. In Quern

v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed. 2d

358 (1979), the Supreme Court held that section

1983 does not abrogate or ‘override’ the sover-

eign immunity of the states under the eleventh

amendment.”

Thus, Nevada’s and California’s motions to dismiss

Council’s Seventh Claim for Relief are granted.

45a

II. May TRPA be sued for money damages based upon inverse

condemnation

TRPA moves to dismiss Council’s Second and Fifth

Claims for Relief based on the argument that damages for

inverse condemnation do not lie against TRPA.13? TRPA

argues that monetary damages are not available from an

entity which lacks condemnation authority. The thrust of

TRPA’s argument relies upon the Ninth Circuit opinion,

Jacobson, 566 F.2d 1353. The Ninth Circuit, in addressing a

claim for damages holds:

“[A] cause of action for inverse condemnation

under the just compensation clause cannot be

stated against the TRPA, its executive director or

members of its governing board because they

lack condemnation authority.”

Id. at 1358 (footnote omitted). Although on appeal this

issue was not before the Supreme Court, that Court did

state:

“The District court dismissed the complaint.

Although it concluded that the complaint suffi-

ciently alleged a cause of action for ‘inverse

condemnation,’ it held that such an action could

not be brought against TRPA because that

agency did not have the authority to condemn

property.”

Lake Country Estates, 440 U.S. at 395-396 (footnote omit-

ted). The Supreme Court did not express any disapproval

of the district court’s holding or of the Ninth Circuit’s

affirmation.

Council, however, urges this Court to reject this hold-

ing on the basis of its “questionable precedential value.”

46a

Council asserts that money damages are appropriate

relief for regulations which result in a taking.

The determination of appropriate relief for regula-

tions which amount to a taking has not been settled

under federal law.'4 Council cites Justice Brennan’s dis-

sent in San Diego Gas & Electric Co. v. City of San Diego,

450 U.S. 621 (1981), in support of its argument that the

Jacobson holding has been eclipsed. The Brennan dissent

reached the merits of a case which the majority held to be

unappealable because there was no final order. Justice

Rehnquist did appear to give a majority vote by agreeing

with Justice Brennan that:

“{O]nce a court establishes that there was a reg-

ulatory ‘taking,’ the Constitution demands that

the government entity pay just compensation

for the period commencing on the date the regu-

lation first effected the ‘taking,’ and ending on

the date the government entity chooses to res-

cind or otherwise amend the regulation.”

Id. at 653. This Circuit has similarly interpreted this as the

view of the Supreme Court. See Martino v. Santa Clara

Valley Water District, 703 F.2d 1141 (9th Cir.), cert. denied,

104 S.Ct. 80 (1984). Justice Brennan’s language is

unequivocal and would demand monetary damages once

a finding is made that a taking has occurred. However,

Justice Brennan was not faced with a governmental entity

lacking condemnation authority. Thus, Jacobson remains

the law for damage claims-against TRPA.

This Court is persuaded in part by Council’s argu-

ments. However, we are unable to disregard the law of

this Circuit as we have found it to be. Thus, TRPA’s

motions to dismiss Council’s Second and Fifth Claims for

47a

Relief, which attacks the zoning ordinances as a depriva-

tion of civil rights under 42 U.S.C. § 1983 is also dis-

missed as to money damages. Jacobson v. Tahoe Regional

Planning Agency, 474 FSupp. 901, 903-904 (D. Nev. 1979)

aff'd 661 F.2d 940 (9th Cir. 1981).

Ill. Does relief lie for compensation of utility assessments and

expected benefit of utilities

All defendants move this Court to dismiss Council's

Sixth Claim for Relief. Council’s sixth claim asserts that

recovery is available for assessments made against the

property owners for construction of utility improvements

and the owners’ expectation to receive the benefits of

those utilities. Council seeks monetary damages and

equitable relief. |

Nevada, California, and TRPA argue that Furey v.

City of Sacramento, 592 F.Supp. 463 (E.D. Calif. 1984),

should guide this Court to dismiss Council’s Sixth Claim

for Relief.15 In his well-reasoned opinion, Judge Ramirez

rejects the contention that an additional taking occurs

when the components of property rights are subdivided

in an attempt to gain recovery. Id. at 472. Relying upon

Penn Central Transportation Co. v. City of New York, 438 U.S.

104 (1978), Judge Ramirez found that a single parcel may

not be divided into discrete segments in order to allege

that one component of the parcel has been taken. This

Court adopts the reasoning of Judge Ramirez in Furey.

Council’s attempt to distinguish its claim from that

claim dismissed in Furey merely serves to underline the

similarities. Council argues that the thrust of its Sixth

Claim for Relief is “ .. . merely to restate the cause of

48a

action for inverse condemnation of Plaintiff’s entire prop-

erties, with special emphasis on taking of (1) Plaintiffs’

expectation to receive the benefits of the utility services

and (2) Plaintiffs’ assessment payments. The latter two

are clearly ‘sticks’ in the ‘bundle of rights’ comprising

Plaintiffs’ property.” Council’s Opposition at 102. Coun-

cil’s attempt to challenge TRPA’s zoning ordinances by

severing two of its “sticks” fails to state a separate claim

for which relief can be granted.

This Court finds that the analysis in Furey is correct

and Council’s claim merely an attempt to subdivide the

property rights of plaintiffs. Therefore, defendants’

motions to dismiss Council’s Sixth Claim for Relief will

be granted.

IV. Conclusion

IT IS, THEREFORE, HEREBY ORDERED for the rea-

sons stated above, that:

(1) Nevada’s motions to dismiss the Second, Fifth,

Sixth, and Seventh Claims for Relief are GRANTED:

(2) California’s motions to dismiss the Second, Fifth,

Sixth, and Seventh Claims for Relief are GRANTED;

(3) TRPA’s motions to dismiss the Second, Fifth, and

Sixth Claims for Relief are GRANTED, and

(4) TRPA’s motion to dismiss the Seventh Claim for

Relief of money damages is GRANTED.

IT IS FURTHER ORDERED that the remaining issues

in defendants’ motions to dismiss shall be treated as

motions for summary judgment in accordance with

—

49a

Fed.R.Civ.P. 12(b), 56. Defendants shall have 30 days

within which to supplement said motions as motions for

summary judgment. Plaintiffs shall thereafter have 30

days within which to respond to said motions as motions

for summary judgment, and defendants shall thereafter

have 15 days within which to file a reply.

DATED: May 10, 1985.

/s/ Edward C. Reed

UNITED STATES DISTRICT JUDGE

Footnotes

1 The Compact imposes significant duties on the TRPA

regarding the adoption of the regional plan. For example, the

TRPA must first adopt “environmental threshold carrying

capacities for the region” and within one year of this adoption,

must amend the regional plan while achieving and maintaining

these capacities. Compact, Art. V(b).

2 The named individuals allegedly own one or more par-

cels of real property located in the Tahoe Basin subject to the

regulations of the Regional Plan.

3 This Court notes that in contrast to Council’s position,

the State of California has sued the TRPA alleging that the

TRPA’s efforts to protect environmentally sensitive land has

been inadequate. See California Motion to Dismiss at 5.

4 SEZ-plaintiffs are those landowners of property which

has been classified by the Regional Plan as “Stream Environ-

ment Zone.”

° Class 1, 2, 3 plaintiffs are those landowners of property

whose land capability has been classified in the Regional Plan

as Class 1, 2, 3.

| aa |

50a

6 Council has also named individual TRPA members in its

complaint. The TRPA bases its argument to dismiss the indi-

vidual board members on Supreme Court’s holding that the

TRPA members are immune from damages when they are

acting in a legislative capacity. See Lake Country Estates, 440

U.S. 391, 406 (1979). This Court, however, is unable to deter-

mine from the record before us whether the TRPA members are

being sued for performance of their legislative duties. There-

fore, as noted in the order, this Court converts this motion to

summary judgment.

7 Council objects to any reliance on those extrinsic matters

without a conversion to motions for summary judgment. How-

ever, Council’s admission that it has knowledge that matters

outside the pleadings have been submitted constitutes notice

in this Circuit and this Court is under no obligation to provide

additional notice to Council that remaining issues could be

transformed to motions for summary judgment. See Grove,

Riddle, and Riddle v. Mead School; District, No. 83-3784 at 7 (9th

Cir. amended April 15, 1985); Garaux v. Pulley, 739 F.2d 437,

439-440 (9th Cir. 1984).

8 NRS 41.031(3) provides:

“The State of Nevada does not waive its immunity from suit

conferred by Amendment XI of the Constitution of the United

States.”

* Council also argues that the Supreme Court’s examina-

tion of TRPA’s lack of Eleventh Amendment immunity should

guide this Court to find California and Nevada have waived

their immunity. See Lake Country Estates, Inc., v. Tahoe Regional

Planning Agency, 440 U.S. 391 (1979). This Court finds this

argument meritless. In Lake Country, the Supreme Court

decided whether TRPA was entitled to the “immunity that the

Eleventh Amendment provides to the compacting states themselves.”

Id. at 393. (emphasis added) (footnote omitted). Thus, not only

did the Court implicitly recognize that California and Nevada

enjoyed Eleventh Amendment immunity, but the analysis of

the Court was whether the Eleventh Amendment should be

extended beyond the compacting states (California and Nev-

ada) to TRPA. The Court, in declining to expand the states’

immunity to TRPA, found that it was not an arm of the state

5la

and there was no intention to confer immunity on TRPA. Id. at

402. The Lake Country Court specifically noted that it was not

addressing whether or not there was any affirmative waiver of

Eleventh Amendment immunity by the compacting states. Id.

at 402, n.23.

10 This Court could find abrogation of a state’s Eleventh

Amendment immunity if an unequivocal expression of con-

gressional intent to “overturn the constitutionally guaranteed

immunity of the several states” is demonstrated. Pennhurst, 104

S.Ct. at 907 quoting Quern v. Jordan, 440 U.S. 332 (1979). How-

ever, even Council does not argue that Congress intended to

abrogate California and Nevada’s sovereign immunity regard-

ing the TRPA Compact.

1 Article VIII(e) of the Compact provides that no TRPA

obligation shall bind either of the party states. This appears to

negate any inference Council makes that Nevada and Califor-

nia intended to subject the states to liability for TRPA actions.

12 Article VI(b) of the original Compact commanded that

suit should be brought in a court of the state where a violation

of the Compact was committed or where the property was

located “unless the action is brought in a federal court.”

13 Nevada also asserts the Eleventh Amendment as a bar

to the damages claims against TRPA. Nevada argues that any

damages TRPA would be liable for would be paid by the

treasuries of the compacting states and, therefore, the Eleventh

Amendment bars any money claims against TRPA as it would

be against the states. Some support for Nevada’s argument can

be found in Pennhurst, 104 S.Ct. 900. There, the Supreme Court

holds “[t]he general rule is that a suit is against the sovereign if

‘the judgment sought would expend itself on the public treas-

ury or domain, ...” Id. at 908, n.11 citing Dugan v. Rank, 372

U.S. 609, 620 (1963). Despite this recent pronouncement, this

Court must rely on the clear mandate of the Supreme Court

that the Eleventh Amendment is not a bar to damages claims

asserted against TRPA and, thus, rejects Nevada’s argument.

Lake Country Estates, 440 U.S. 391.

14 On the other hand, the California Supreme Court has

made it clear that the appropriate remedy under state law for

an unconstitutional regulation that operates as a taking is

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mandamus or declaratory relief rather than inverse condemna-

tion resulting in monetary damages. Agins v. City of Tiburon, 24

Cal. 3d 266, 275-77 (1979), aff'd. 447 U.S. 255, 100 S.Ct. 2138

(1980).

15 Nevada and California also argue that the Eleventh

Amendment bars any damages based on Council’s Sixth Claim

for Relief. This Court, for the reasons stated in part I, of this

Order, agrees that the Eleventh Amendment is an alternative

ground for dismissing Council’s Sixth Claim for Relief against

Nevada and California. Py

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APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

The TAHOE-SIERRA

PRESERVATION COUNCIL, CV-R-84-257-ECR

INC., a California

non-profit corporation and ORDER -

membership organization, et al., [Entered June 6,

Plaintiffs, 1986]

The TAHOE REGIONAL

PLANNING AGENCY,

a separate legal entity

created pursuant to an interstate

Compact between the States of

California and Nevada, et al.,

Defendants.

This Court by order dated May 10, 1985,! granted

defendants’ motions to dismiss the second, fifth, sixth,

and seventh? causes of action. We converted the remain-

ing issues presented by defendants to summary judgment

pursuant to Fed.R.Civ.P. 56 and allowed further briefing.®

Oral hearing on the motions for summary judgment was

held on March 31, 1986.

This case involves a challenge to the 1984 Regional

Plan adopted by defendant Tahoe Regional Planning

Agency (TRPA). Regional planning in the Lake Tahoe

Basin is inherently difficult. The Basin is 500 square miles

(192 square miles covered by Lake Tahoe) and covers two

states and five counties. The area, because of population

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and topography, presents difficult environmental prob-

lems. In recognition of this, the states of Nevada and

California sought to coordinate the planning effort at the

Lake. In 1969 the two states adopted an interstate agree-

ment, the Tahoe Regional Planning Compact (Compact),

which was approved by Congress. Pub.L. No. 91-148, 83

Stat. 360 (1969); amended Pub.L. 96-551, 94 Stat. 3233;

Calif. Govt. Code Sections 66800 and 66801; NRS

§§ 277.190 and 277.200. Nevada and California exten-

sively amended in the Compact in 1980 in recognition

that “[t}he waters of Lake Tahoe and other resources of

the region are threatened with deterioration or degenera-

tion, which endangers the natural beauty and economic

productivity of the region.” Article 1, Compact.

The 1980 amendments imposed several new and spe-

cific mandates on the TRPA. The TRPA must first adopt

“environmental threshold carrying capacities for the

region.” Article V(b). Within one year after adoptiorof

the environmental thresholds, the TRPA was mandated to

amend the regional plan so that, at a minimum, the

environmental threshold carrying capacities would be

implemented. Article V(c). It is the Regional Plan, which

the TRPA enacted April 26, 1984, which is the subject of

this lawsuit.

Plaintiffs are the Tahoe-Sierra Preservation Council

(Council) and several hundred of its members owning

legally-created lots or parcels within the Lake Tahoe

region, which are classified by the TRPA’s Regional Plan

as either Stream Environment Zone (SEZ) or land capa-

bility class 1, 2 or 3. Further allegations regarding each

plaintiff’s lot or parcel are set forth in appendices to the

complaint.

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“The gravamen of Council’s complaint is that, as a

result of the excessive restrictions or ‘overregulations’ of

Council’s properties imposed by provisions of the 19384

Regional Plan, defendants have ‘taken’ Council’s proper-

ties in violation of the Fifth Amendment proscriptions

against deprivation of property without due process of

law and taking of property for public use without pay-

ment of just compensation.” Plaintiffs’ Opposition to

Motions for Summary Judgment at 4-5 (document #64).

The following claims for relief are still before this

Court:

First Claim for Relief: Alleges that the

Regional Plan precludes SEZ-plaintiffs from

making any reasonable or practical use of their

property.

_ Third Claim for Relief: Alleges that the

Regional Plan precludes Class 1, 2, 3 plaintiffs

from making any reasonable or practical use of

their property.

Fourth Claim for Relief: Alleges that the

Regional Plan’s restrictions deny Class 1, 2, 3

plaintiffs equal protection.

Seventh Claim for Relief: Alleges that the

TRPA inversely condemned plaintiffs’ property

in violation of 42 U.S.C. § 1983.

Although all defendants join in each other’s motions,

the following specific arguments are made by the parties.

The TRPA argues in support of its motion that: (1) the

members of the TRPA governing body are immune from

any suit because they acted in their legislative capacity;

(2) the Council failed to exhaust administrative remedies

in that it is not “aggrieved” within the meaning of Article

V1(j); (3) as a matter of law, the TRPA’s amended Regional

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Plan and implementing ordinance are valid exercises of

its police power; (4) Council has not been denied pro-

cedural due process of law; and (5) the TRPA did not act

in excess of its authority.

Nevada argues in support of its motion that: (1)

Council’s complaint is barred by the Compact’s statute of

limitations; (2) Council’s property has not been taken

without due process of law in that the TRPA’s Regional

Plan and its restrictions are related to legitimate state

interests; (3) the Regional Plan serves legitimate environ-

mental objectives and satisfies the Compact’s mandate;

and (4)

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