# Petition for Writ of Certiorari — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1596%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 943 ## Text SS pad - i ¥ : -~* fy In The Supreme Court of the United States October Term, 1990 a 4 TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al., Petitioners, TAHOE REGIONAL PLANNING AGENCY, et al., Respondents. ,% vv Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit y% w~ PETITION FOR WRIT OF CERTIORARI La vy 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) il 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. iv 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 23 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 vi 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 ix 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. y% ol In The Supreme Court of the United States October Term, 1990 a _ TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al., Petitioners, TAHOE REGIONAL PLANNING AGENCY, et al., Respondents. a _ Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit a. . PETITION FOR WRIT OF CERTIORARI & vw 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 2 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. 3 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. 4 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 SS 5 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) 6 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) 7 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) 8 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. 9 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) 10 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. ' | } | 11 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 12 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. 13 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: 14 “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 15 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. 16 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.” 17 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: 18 “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). 19 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). 20 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 21 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. 22 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. 23 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 24 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 25 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. 26 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 27 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. 28 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. 29 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 — 30 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 la APPENDIX A TAHOE-SIERRA PRESERVATION COUNCIL, INC., a California nonprofit corporation and membership organi- zation, Plaintiffs-Appellants, V. 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 2a 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. 3a 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 5a 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). 6a 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. 7a 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, 8a 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 9a 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 y 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. I 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. If 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 variance [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1596%3A1. Public record. Not legal advice.