Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

In the

Supreme Court of the United States

October Term, 1996

—->

BERNADINE SUITUM,

Petitioner,

Vv .

TAHOE REGIONAL PLANNING AGENCY,

Respondent.

~—

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

-~o—

BRIEF AMICUS CURIAE OF

THE TAHOE-SIERRA PRESERVATION COUNCIL, INC.

IN SUPPORT OF PETITIONER,

BERNADINE SUITUM

—>—

LAWRENCE L. HOFFMAN

COUNSEL OF RECORD

Hoffman Law Offices

3000 N. Lake Boulevard

Post Office Box 7740

Tahoe City, California 96145

Telephone: (916) 583-8542

ATTORNEYS FOR AMICUS CURIAE

I. NO MORE GRAPHIC EXAMPLE OF THE NEED

TO INVOKE THE PROTECTIONS OF THE FIFTH

AMENDMENT CAN BE IMAGINED THAN THE

DECISION OF TRPA TO REQUIRE MRS. SUITUM

TO SACRIFICE ALL USE OF HER RESIDENTIAL

PARCEL IN THE NAME OF PROTECTION OF

LAKE TAHOE, VIRTUALLY THE LAST REMAINING

VACANT HOMESITE PARCEL IN A NEARLY BUILT-

C. TRPA’s Broadbrush Regulatory Prohibitions

and Its Creative Defenses......+++-

. THE NINTH CIRCUIT’S APPROACH IN THIS

CASE, IF ALLOWED TO STAND, CARVES A

GAPING HOLE INTO THE "CATEGORICAL

TAKINGS RULE" CAREFULLY CONSIDERED AND

ARTICULATED BY THIS COURT IN LUCAS V.

SOUTH CAROLINA COASTAL COUNCIL .

Ill. IF ANYTHING, THE TDRs AT ISSUE GO

TO THE MATTER OF "JUST COMPENSATION",

AND HAVE NOTHING WHATSOEVER TO DO

WITH THE "RIPENESS" OF MRS. SUITUM’S

TAKINGS CLAIM eeoeeeeeeeeeeeeeeeeee eee?

CONCLUSION ....+++>+ WTTTTTTiT

APPENDICES

TABLE OF AUTHORITIES

CASES Page

Agins v. Tiburon, 447 U.S. at 260 (1980) .......... 23

Del Monte Dunes at Monterey, Lid. v.

City of Monterey, 95 F.3d 1422,

(9th Cir., Sept. 13, 1996 2... . cece eee 29

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ........ 17

Jacobson v. Tahoe Regional Planning Agency,

566 F.2d. 1353, 1358 & n. 7 (9th Cir. 1977) ....... 16, 17

Keystone v. Bituminous Cole v. DeBenedictis,

480 U.S. at 495 (1987) 2... ees 23

Lucas v. South Carolina Coastal Council,

. J} i 7) Sere 4, 19, 20, 22,

23, 24, 28

Penn Central Transportation Co. v.

New York City, 438 U.S. 104 (1978) ....... 25, 26, 27, 28

Tahoe Regional Planning Agency v.

Romolo and Helen Barbieri, E.D. of Calif.,

ae FS). rarer 2

Tahoe-Sierra Preservation Council, Inc., et al.,

v. Tahoe Regional Planning Agency, 911 F.2d 1331

(9th Cir. 1990), cert. den. 499 U.S. 943 (1991)

Lg BPP TTITITT TTT 1, 17, 19, 29

Tahoe-Sierra Preservation Council, Inc., et al.,

v. Tahoe Regional Planning Agency, 938 F.2d 153

(9th Cir. 1991) [“TSPC II]... 2. eee eee eee 1, 17, 19

Tahoe-Sierra Preservation Council, Inc., et al.,

v. Tahoe Regional Planning Agency, 34 F.3d 753

(9th Cir. 1994), cert. den. ___ U.S. __, 115

S. Ct. 1401 (1995) [“TSPC HIT] ......---55> 2, 17, 19

BRIEF AMICUS CURIAE OF THE

TAHOE-SIERRA PRESERVATION COUNCIL, INC.

IN SUPPORT OF PETITIONER, BERNADINE SUITUM

—>—

IDENTITY AND

INTEREST OF AMICUS CURIAE

Amicus Curiae Tahoe-Sierra Preservation Council,

Inc., is a non-profit membership corporation organized under

the laws of the State of California for the purpose of

ing the interests of its approximately 2000 members,

each a Lake Tahoe Basin property or business owner, before

the applicable regional, state, and local regulatory agencies,

("“TRPA"). The Tahoe-Sierra Preservation Council is also

the lead plaintiff, along with approximately 450 of its ©

members who are also individual named-plaintiffs, in twin

lawsuits now consolidated and pending in the U.S. District

Court, District of Nevada, before the Honorable Edward C.

Reed (Case No. CV-N-84-257 ECR) involving “takings

claims” brought against the Respondent TRPA. Those

pending cases have been before the Ninth Circuit Court of

Appeals on three separate occasions, and include:

e TSPC 1 -- Tahoe-Sierra Preservation Council,

Inc. etal. v. Tahoe Regional

Planning Agency, 911 F.2d 133! (9th

Cir. 1990), cert. den. 499 U.S. 343

(1991)

© TSPC Il — Tahoe-Sierra Preservation Council,

Inc., et al. v. Tahoe Regional

Planning Agency, 938 F.2d 153 (9th

Cir. 1991)

ofc

aM

© TSPC Ill -- Tahoe-Sierra Preservation Council,

Inc., et al., v. Tahoe Regional

Planning Agency, 34 F.3d 753 (9th

Cir. 1994), cert. den. __U.S.__, 115

S. Ct. 1401 (1995)

The issues at stake in the instant lawsuit are also

issues involved in the aforementioned litigation brought by

the Amicus Curiae and currently pending against TRPA in

the U.S. District Court in Reno, and are otherwise issues of

vital concern to all affected private property owners in the

Lake Tahoe Basin who are subject to the regulatory

requirements of TRPA.” Accordingly, Amicus Curiae has a

strong and direct interest in the proper resolution of these

important Constitutional issues, given the impact of the

regulatory provisions adopted by TRPA upon the

Preservation Council’s members and other property owners

owning property within the Lake Tahoe Basin. It was also

for that reason that Amicus Curiae deemed it appropriate to

submit, with this Court’s consent, an earlier Amicus brief iin

support of the Petition for Writ of Certiorari im this matter.

Written consent to file this brief has been granted by

both counsel for the Petitioner and the Respondent, and has

been lodged with the Clerk of this Court.

” Counsel of Record for the Amicus Curiae is also

counsel for the defendants in a case now pending before the

U.S. District Court, Eastern District of California, in which

issues directly involving those addressed in the instant case

are being raised as a defense by TRPA. See Tahoe Regional

Planning Agency v. Romolo and Helen Barbieri, E.D. of

Calif., No. CVS-94-138C LKK. All proceedings in that

matter have been stayed by the District Judge pending this

Court’s decision in the instant case.

:

husband while he was alive, made what in hindsight

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intent was

someday to build their dreamed-of retirement home on that

lot. Then, in what now turns out to be another foolish

mistake, they decided to sit tight and do nothing with their

vacant lot for the next 15 years, while others built their

homes on almost all of the neighboring lots in the

extensively urbanized. Additionally, they also made the

apparent mistake of selecting a lot that appeared to them to

be easy to build upon -- virtually level, only a couple of pine

trees (it had previously been logged), covered mostly with

field grasses and willows, and bounded at the rear property

said by TRPA to contribute to the decline of Lake Tahoe’s

water clarity. Thus, in the 1980s, based upon its newly-

found environmental wisdom, TRPA simply imposed an

outright ban on any further use or buildimg on such vacant

-4-

SEZ residential lots including Mrs. Suitum’s -- TRPA’s

presumably easily enforceable “fix” to the environmental

problem it then perceived.

In doing so, TRPA totally disregarded the fact that

Mrs. Suitum’s lot is virtually the last remaining, privately-

owned vacant lot in the now built-out and heavily urbanized

area, nor did it do anything to address the fact that the

watershed it purportedly was seeking to protect was already

extensively altered, modified, and heavily disturbed by

urbanization. Rather, TRPA placed the entire burden of

“protecting” Lake Tahoe on those few property owners,

including Mrs. Suitum, who had not yet built upon their

homesites by simply banning outright any further

construction on such vacant SEZ lots.

In Lucas v. South Carolina Coastal Council, 50S

U.S. 1003 (1992), this Court held that where a land use

regulatory agency adopts a regulation prohibiting a private

property owner from making all economically beneficial use

of his or her private property in the name of the common

good by banning any building or other structures on that

property, a “categorical taking” has occurred triggering the

Just Compensation requirements of the Fifth Amendment.

The facts at issue in the instant case fit the Lucas categorical

takings rule like a glove with one new twist.

To insulate itself from a “takings challenge”, the

Respondent TRPA - more particularly its highly-capable

Self-Defense Experts -- simply appended to TRPA’s SEZ

building prohibition a post-takings “Transferable

Development Rights” ("TDR") scheme by which Mrs.

Suitum could theoretically recoup a small portion of the lost

value of her valuable property by supposedly selling to

another private party certain so-called “transferable rights”

bestowed on her by TRPA after it prohibited all use of her

property. When challenged in federal court, TRPA’s Self-

Defense Experts then, as expected, asserted that Mrs. Suitum

-5-

first had to navigate through TRPA’s labyrinthian new TDR

maze to try to determine whether in fact she could find

anyone who was willing to pay her some amount of money

for the redeemable TDR chits. They contended that until she

did so, Mrs. Suitum takings claim was not “ripe” for judicial

review.

Unfortunately, both the District Court and the Ninth

Circuit fei. for this ploy. Muddling the concept of potential

post-takings recoupment of partial lost value with the denial

of all use upon the adoption by TRPA of its SEZ building

prohibition, the lower courts effectively created a gaping new

hole in the Lucas categorical takings rule by requiring Mrs.

Suitum to fully exhaust this agency-created, highly-

speculative, post-takings TDR scheme before her takings

claim was deemed judicially “ripe* -- a seemingly

insurmountable new barrier effectively barring the courthouse

doors to Mrs. Suitum.

On closer examination, it is clear that TRPA’s Self-

Defense TDR gimmick has nothing whatsoever to do with

any use that Mrs. Suitum could make of her own property,

nor with any rights granted to her to transfer any potential

use to another property she owns, as she owns no other

property in the area. At best, TRPA’s TDR scheme simply

provides her with a “redeemable voucher” that may or may

not allow her to recoup some meager post-takings dollars to

try to ameliorate her loss. Thus, seen in its best light, it

goes only to the issue of the Just Compensation to which

Mrs. Suitum is entitled -- a factual determination for the trier

of fact when the matter of Just Compensation. is addressed at

trial, not an isswe that can be properly resolved by way of

summary judgment nor one having anything to do with the

“ripeness” off her takings claim.

NO MORE GRAPHIC EXAMPLE OF THE NEED TO

INVOKE THE PROTECTIONS OF THE FIFTH

AMENDMENT CAN BE IMAGINED THAN THE

DECISION OF TRPA TO REQUIRE MRS. SUITUM

TO SACRIFICE ALL _USE OF HER RESIDENTIAL

PARCEL IN THE NAME OF PROTECTION OF LAKE

TAHOE, VIRTUALLY THE LAST REMAINING

VACANT HOMESITE PARCEL IN A NEARLY BUILT-

OUT AND HEAVILY URBANIZED AREA.

A. The Regulatory Background:

There can hardly be any question about it - TRPA

certainly has earned the much-coveted Blackbelt for its

demonstrated expertise in the specialized regulatory art of

Takings Self-Defense. A recognized pacesetter whose bold

and seemingly no-holds-barred approach has earned it the

acclaim of its bureaucratic brethren, TRPA is today nearly

without equals in its efforts to immunize its seemingly

confiscatory land use regulations from the usual judicial

scrutiny afforded to such measures.

One need hardly look any further than the facts and

circumstances of this case for a more graphic example of

how the extraordinary regulatory zeal of a land use

regulatory agency has apparently blinded it to its equally

important obligation to treat those it regulates in a

Constitutionally permissible and fair manner.

The saga began in the early 1980s when the newly-

reconstituted TRPA, concerned about scientific reports

~ P

showing a decline in the water clarity of Lake Tahoe,'

determined that that decline was due in significant part to

man-caused soil disturbance in scores of recently-urbanized

sub-watersheds that surround Lake Tahoe . . . disturbances

such as highways, road cuts and fills, large commercial and

public projects, new subdivisions, and similar construction

activities that TRPA concluded were “releasing nutrients” in

the watersheds (nitrogen and phosphorus in the soils), which

in turn are carried down to the Lake by seasonal run-off

through the numerous watercourses feeding Lake Tahoe.

Those additional soil nutrients, TRPA said, provide extra

nourishment for the microscopic free-floating algae naturally

found in the Lake, thus causing more microscopic algae

growth which in turn reduces the clarity of the Lake’s

waters.

Thus, beginning in the early 1980s and continuing to

the present, TRPA, over the vigorous protests of thousands

of impacted private property owners who purchased legally-

created homesites in existing residential subdivisions on

which someday to build their retirement or vacation home,

adopted an increasingly more Byzantine set of regulatory

requirements that were purportedly aimed at trying to address

the issue of the apparent increase in nutrients reaching Lake

Tahoe.

' The issue, unfortunately, is frequently mischaracterized

as a “water quality” issue suggestive of a health and safety

concern, when that of course is not the case. The waters in

Lake Tahoe continue to be extraordinarily clean, clear and

pristine -- cleaner and safer than almost all domestic drinking

water anywhere in the country. The real issue is visual

clarity -- how deep the human eye can see into the waters of

the Lake as measured by the depth at which a 9-inch white

disk lowered from a boat near the center of the Lake is seen

to disappear from sight.

Pursuant to TRPA’s 1987 Regional Plan at issue here,

the key components of its adopted regulatory approach were

to limit the number of newly-constructed homes in the Lake

Tahoe Basin to 300 per year out of literally thousands of

eligible vacant parcels; to ban all new lot-and-block

residential subdivisions; to require compliance with strict

building requirements known as “Best Management

Practices” in the construction of the homes it allowed to be

built so as to avoid erosion runoff; and to evaluate, score,

and rank all existing vacant single-family parcels in the Basin

through a highly-complex new Individual Parcel Evaluation

System ("IPES"), with those receiving the lower scores being

virtually precluded from ever building. As to certain lots or

parcels found to be in areas TRPA euphemistically labelled

as "Stream Environment Zones" -- now commonly referred

to as "SEZs" -- it earmarked those properties as the most

“environmentally sensitive" requiring the most “heightened

protection” . . . regulatoryeze for justifying a blanket ban on

any further “soils disturbance” -- building -- on those SEZ

lots, including the lot owned by Mrs. Suitum.

Thus, with the magic stroke of its regulatory pen,

TRPA not only coined the lofty-sounding label “Stream

Environment Zone", but proceeded to define that term

extremely broadly to encompass the watercourse itself and

the adjacent banks and floodplain, as well as all of the

nearby lands that showed any indication of subsurface

wetness or high groundwater evidenced by the nature of the

vegetation and soils. That SEZ concept in turn became a

2 The precise definition of "SEZs" is set forth in

TRPA’s Code of Ordinances at Chapters 2 and 37.3, and is

too lengthy and complex to set forth here in full. It involves

a number of technical indicators by which the outer

boundaries of a SEZ are determined and then mapped. Once

mapped, TRPA’s 1987 Regional Plan, at Goal 1, Policy 5.A.

of the Conservation Element, and Ordinance Section 20.4,

-9-

central building block of TRPA’s aggressive new regulatory

program.

Having decided to ban all new development in areas

it designated as SEZs TRPA next proceeded to map and

field-verify the boundaries of thousands of acres of SEZs

throughout the literally dozens of sub-watersheds that

comprise the Lake Tahoe Basin, and then to overlay the

current parcel ownership maps to identify those parcels of

lands that were reportedly within SEZs.

Having “mapped” those SEZs, and having overlayed

the property ownership boundaries, TRPA imposed a series

of broad-sweeping regulatory restrictions that, cutting to the

chase, prohibit outright all new land coverage’, permanent

land disturbance, or any other development within such

mapped SEZs, particularly on privately-owned, vacant

residential lots lying within SEZs such as that owned by Mrs.

Suitum, with only very limited exceptions applicable to

public outdoor recreation projects and certain other public

facilities.

As applied to Mrs. Suitum’s property, one of literally

hundreds of similarly-situated SEZ vacant homesites, TRPA,

at page 2 of its Brief in Opposition to the Petition for Writ

of Certiorari, summarized its decision-making process and

the consequences thereof as follows:

expressly prohibit “any new land coverage or permanent land

disturbance" in a SEZ area.

* “Land Coverage" is defined in Chapter 2 of TRPA’s

Code of Ordinances as a “man-made structure, improvement,

or covering that prevents normal precipitation from directly

reaching the surface of the land", such as buildings, decks,

driveways, sidewalks, patios, and similar hard surfaces.

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Mrs. Suitum’s property is classified by

TRPA as being located within a Stream

Environment Zone [SEZ], which is a

classification established by TRPA based upon

the environmental sensitivity of the parcel.

An (sic) SEZ generally conveys surface water

from upland areas into Lake Tahoe and its

tributaries. The role of an (sic) SEZ in the

cleansing of run-off is integral to the

preservation of Lake Tahoe’s water clarity.

Lake Tahoe is universally acclaimed as a

national treasure. The riparian vegetation of

an (sic) SEZ is important for many reasons,

including treatment of runoff and maintenance

of soil stability.

The classification of Mrs. Suitum’s

parcel as an (sic) SEZ _ prohibits

construction of a new single family dwelling

thereon. [Citations omitted; emphasis added. }

To the regulators at TRPA, it was simple and

straightforward. SEZs are “environmentally sensitive" areas

that help cleanse run-off, thus helping preserve the water

clarity of Lake Tahoe, a “national treasure". Mrs. Suitum’s

lot was found to be within such a SEZ. Thus she must be

made subject to regulations that “prohibit construction of a

new single family dwelling thereon," or for that matter, any

other use whatsoever of her vacant lot.

And apparently to underscore how strictly it intended

this SEZ prohibition to be applied, the TRPA-adopted

regulatory program left no discretion to the TRPA staff

regulators on individual project applications, nor did it

provide literally hundreds of affected private property

owners, including Mrs. Suitum, with any meaningful options.

They were simply prohibited by TRPA from using their

property for any viable purpose, once it was found to fall

—M.

within a TRPA-mapped SEZ. Conspicuously absent was any

variance procedure to allow individual property owners to

demonstrate that given the special circumstances of their

property, or its location or unique configuration, it was

virtually impossible for any construction on their lot to cause

“soil nutrients" to enter Lake Tahoe. Nor did the regulations

allow a property owner to demonstrate how and in what

manner they could safely build so as to meet strict standards

intended to prevent erosion, nutrient run-off, or other adverse

impacts to the Lake. There simply were and are no

exceptions.

B. Mrs. Suitum’s Vacant Homesite & The

Surrounding Urbanized Area

Perhaps best illustrating the ill-conceived

consequences of TRPA’s blinders-on approach are the

circumstances of Mrs. Suitum’s case -- facts that are a matter

of public record and will undoubtedly be put forward to the

trier of fact if and when Mrs. Suitum is allowed "to have her

day in court".

The single-family, vacant homesite purchased by Mr.

& Mrs. Suitum nearly 25 years ago as the site of their

dream-of retirement home is a level lot slightly less than 1/2

acre in size (approximately 18,300 square feet), located in

the now built-out Mill Creek Subdivision located in a heavily

urbanized portion of the community known as Incline

Village, Nevada.‘ That residential subdivision was first

developed in the early 1960s pursuant to a Final Subdivision

Map and all other required approvals granted by the County

* Mrs. Suitum’s parcel is identified in the Official

Records of Washoe County, Nevada, as Lot 15, Block K,

Mill Creek Subdivision, Assessor Parcel No. 130-211-31,

and would have a street address of 159 Mayhew Circle,

Incline Village, if a home were to be built upon it.

>.

of Washoe, State of Nevada, in accordance witli the then

applicable regulatory requirements. The subdivision and all

of the separate residential lots are served by paved streets,

underground sewers, water, electricity, telephone, and the

other amenities of a residential community.

A quick drive through the area quickly shows that

Mrs. Suitum’s lot is one of only a handful of remaining

privately-owned vacant lots out of scores of residential

homesites in her subdivision, virtually all of which now have

homes constructed on them. In fact, along the approximately

1/4 mile length of the residential street known as Mayhew

Circle on which Mrs. Suitum’s parcel is located, there are 18

individual homes on both sides of the street, many dating

back more than 25 years, and most owned by so-called

second homeowners as vacation residences.

Mrs. Suitum’s lot, which faces the paved Mayhew

Circle road, has homes constructed on each side of her lot,

as well as homes constructed on all of the lots to the rear of

her lot. Her lot is the only remaining privately-owned vacant

lot on her street, although there are also a handful of vacant

lots owned by public agencies. It is also virtually the last

privately-owned vacant lot in the entire subdivision. It takes

an extraordinary mental stretch to conceive how building a

home on her lot could possibly have any measurable impact

on Lake Tahoe. Nevertheless, it certainly appears Mrs.

Suitum is now being required to bear nearly the entire burden

for the alleged excesses of development that have already

occurred in her subdivision and the surrounding watershed by

sacrificing any further use of her lot in the name of the

common good.

As to the surrounding watershed, if and when Mrs.

Suitum is allowed her day in court, it will become readily

apparent to the trier fact that the so-called precious SEZ

known as Mill Creek is hardly the type of pristine mountain

stream that that term conjures in one’s mind. Even a cursory

Me

inspection shows that it is nothing more than a short, heavily-

altered watercourse which has been piped, culverted,

channeled, moved, and otherwise extensively impacted by the

activities of man over the last several decades.

For example, less than a 1/2 mile upstream from

Mrs. Suitum’s property, the waters from the surrounding

mountainside are captured in a reservoir behind an earthen

dam known as Mill Creek Dam No. 2. The public record

shows that that dam and reservoir were built in 1962 as an

emergency waste water storage facility to be used for

emergency overflow from the Community Sewer Treatment

Plant that is located adjacent to the reservoir. In fact on one

occasion in the past the reservoir was used for just such

emergency overflow of chiczinated waste water according to

the records of the Incline Village General Improvement

District which operates the facility.°

Waters trapped behind the Mill Creek Dam No. 2 are

then released on a controlled basis to run down through a

much-altered watercourse still known as “Mill Creek"

through a heavily urbanized light industrial area, including

the community trash-recycling center which is immediately

adjacent to the watercourse. The watercourse then crosses

underneath State Highway 28 through a large culvert, and

works it way down through the Mill Creek Subdivision and

behind Mrs. Suitum’s lot through a relocated, man-dug

channel which was placed along the back property line of

Mrs. Suitum and her neighbors’ properties at the time the

subdivision was developed to relocate the original

meandering stream course. Just a short ways downstream,

the watercourse is again culverted where it crosses under still

* See the recent public report entitled "The Legacy of

Mill Creek Dam #2" prepared by Daniel M. St. Johns, P.E.,

and currently the Director of Engineering for the Incline

Village General Improvement District.

=

another major roadway (Lakeshore Blvd.), and then

continues until it discharges into Lake Tahoe approximately

1/2 mile downstream from Mrs. Suitum’s lot. Also, just a

couple of blocks from Mrs. Suitum’s lot is one of the Tahoe

Basin’s largest tourist attractions, the well-known Ponderosa

Ranch Amusement Park, that has created enormous

disturbance to acres of mountainside that also drain and run-

off into the same Mill Creek drainage.

To help the Court better understand the factual setting

involved, we have taken the liberty to append to this brief as

Appendices the following: Append. A -- 1992 Aerial Photo

of Mill Creek Drainage; Append. B -- Copy of "TRPA-

Mapped SEZ -- Mill Creek Drainage” showing the TRPA-

mapped SEZ boundaries, Mrs. Suitum’s lot, and existing

residences; and Append. C -- "Portion of Recorded Piat Map

-- Mill Creek Subdivision" recorded in 1960 showing the

Mayhew Circle portion of the subdivision, and depicting

whether the individual lots currently have homes constructed

upon them or remain vacant.

Unfortunately for Mrs. Suitum, she has several

strikes against her. First, when her husband was still alive,

the Suitums made what now appears to be the foolish

decision to sit still while their neighbors were building their

homes, rather then sprinting off to get their own home into

the ground. Secondly, they made the apparent mistake of

purchasing a homesite that had a small, relocated creek

running along the rear boundary line of the lot. Because of

the proximity to that creek, Mrs. Suitum’s virtually flat and

easily buildable lot, which has only a few second-growth pine

trees, is primarily vegetated today with what TRPA now

labels as “riparian vegetation” -- willows and field grasses --

that are deemed by TRPA to be prime indicators of a SEZ,

and thus deserve “heightened protection". Apparently,

TRPA views the root systems of those willows and field

grasses as being crucial to its strategy of ensuring that the

SEZ continues to function as a nutrient uptake area. Hence

of.

TRPA’s total prohibition on any soil disturbance -- even a

shovelful -- on Mrs. Suitum’s lot, so as not to further disturb

what TRPA apparently believes is such a critically-important

root system that it requires permanent protection.

Cc. TRPA’s Broadbrush Regulatory Prohibitions

and Its Creative Defenses

TRPA’s broadbrush regulatory restrictions are

virtually blind to what is on the ground, nor do they even

attempt to address the abuses of yesteryear. Rather, TRPA

takes the simplistic and presumably more easily enforceable

approach of simply barring Mrs. Suitum, and any other

private property owners who may still own vacant land

within mapped SEZs, from making any new use or

disturbance on their vacant land. No, TRPA did not say that

Mrs. Suitum could build a home like her neighbors if she

could show how she would do so and also prevent any

erosion or soil nutrients from reaching the Mill Creek

drainage, which in her case would be quite easy to do with

an appropriate rear-yard berm or wall, given the level nature

of her lot and the long distance between the rear of her

building site and the watercourse. Nor did TRPA allow her

to build a home if she would revegetate with high nutrient-

uptake vegetation the areas along the banks of the

watercourse and on the rear portion of her lot, which in her

case would also be relatively easy to do as it is essentially

just an open grass areas. Nor did TRPA say she would be

allowed to build if she would provide her fair share of

mitigation elsewhere in the watershed to help correct some

of the abuses that had already occurred in the watershed and

along the watercourse. Rather, TRPA simply said NO --

because we have determined that your lot is properly

classified as being within a SEZ, we have concluded that it

is simply too valuable to the protection of Lake Tahoe to be

used for your homesite, and it must therefore remain vacant

into perpetuity.

« fie

Having intentionally chosen to draw the line in the

sand, TRPA then decided to hunker down and to defend the

righteousness of its decision to the bitter end. Thus, instead

of turning its energies to raising the necessary dollars from

its two Sister States, who historically have shown a strong

commitment to help fund environmental programs at Lake

Tahoe,® and to purchase the remaining undeveloped lots in

the Mill Creek drainage at true fair market value, TRPA

chose to pass the baton to its talented and certainly tenacious

Blackbelt self-defenders.

TRPA’s first line of defense was a rather ingenious

but circular argument that because the Legislatures of the

States of California and Nevada, in creating the bi-state

Tahoe Regional Planning Compact, had not acted to convey

upon TRPA the power of direct condemnatior. -- nor to give

TRPA a budget to acquire environmentally sensitive lands --

that a fortiori TRPA could not be sued or liable in inverse

condemnation. Somewhat inexplicably, but most likely

because it wore the proverbial white hat, early on the

sympathetic local Federal District Court and as well as at

least one panel of the Ninth Circuit found compelling logic

in this argument. Thus, without citation to any other

authority or much analysis, the Ninth Circuit concluded in

Jacobson v. Tahoe Regional Planning Agency, 566 F.2d.

1353, 1358 at n. 7 (9th Cir. 1977), "TRPA was given only

the power to regulate, not the power to condemn", and

* For example, at the November 5, 1996 elections, the

voters of California approved another Water Quality Bond

Measure (Proposition 204) that will make an additional

$10,000,000 available on the California-side of Lake Tahoe

for acquisition of “sensitive lands” and water quality

improvements; and the voters of Nevada approved Measure

12, a $20,000,000 bond proposition for water quality

improvements applicable to the Nevada-side of the Basin.

= i9-

therefore could not be liable in damages for inverse

condemnation.

That first line of defense held the tide back for nearly

13 years until it was successfully breached in a lawsuit

pursued by Amicus Curiae on behalf of several hundred

similarly-situated Tahoe property owners. Thus, in 1990, the

Ninth Circuit was finally persuaded, following this Court's

decision in First English Evangelical Lutheran Church y.

County of Los Angeles, 482 U.S. 304 (1987), to revisit its

earlier ruling in Jacobson. In Tahoe-Sierra Preservation

Council, Inc., v. TRPA, 911 F.2d. 1331 (9th Cir. 1990)

(TSPC I}, the Ninth Circuit was compelled to conclude the

Jacobson reasoning “is at odds" with First English --". . .

even a temporary regulation may result in a substantial

burden to landowners, 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 . . ."" Jd. at 1341.

But not undaunted, TRPA’s self-defense experts

returned to their arsenal, this time pulling out a new array of

“ripeness and mootness” weapons . . . new mines in the

minefield they placed across the access route to the

courthouse. Again, one by one, those new mines were also

defused in the litigation brought by other property owners,

including the Amicus Curiae. See the host of ripeness and

mootness defenses raised by TRPA in TSPC I, TSPC II, and

TSPC III, supra, addressed at length by the Ninth Circuit in

these cases.

That effectively left TRPA with its last remaining

rear-guard defense -- the cleverly-labelled “Transfer of

Development Rights" gimmick crafted by its team of self-

defense experts. We need not belabor here the myriad of

details involved in those TDR measures, as those details have

- 18 -

been thoroughly briefed and discussed by the parties in their

briefs.

Rather, stated simply, what TRPA intended to do in

that artfully-crafted maze of TDR ordinances was to set up

the very argument it subsequently made with success to the

lower courts in the instant case, an argument that runs as

follows: "Your Honor, we did not take all of Mrs. Suitum’s

property . . . in fact, we have given her new “uses”... the

right to receive from us special TDR chits that she can

redeem in the new TDR marketplace we have also created by

our regulations. All she needs to do is to take one or more

of those chits into that marketplace and find a private

property owner who owns property elsewhere in the Tahoe

Basin whom we have also regulated, but who is now

motivated to pay Mrs. Suitum some money for one of those

chits . . . so that that other property owner can now build

a slightly bigger home using slightly more coverage than

would otherwise be allowed. In fact, we will then allow

Mrs. Suitum to sell that property owner up to 183 square feet

of coverage (13.5 sq. ft. x 13.5 sq. ft.) off her SEZ lot to

that buyer at the going marketrate, which we understand is

from $5 to $8 per sq. foot. No, we do not know who that

other buyer will be, but we are sure there must be someone

out there if only Mrs. Suitum would try . . . because we

know our regulations are so tough and we limited others so

severely that they will be chafing at the bit to purchase the

TDR chit from Mrs. Suitum. No, we realiy do not know

exactly how much they will offer to pay, nor do we really

care . . . because what is really important is that Mrs.

Suitum can probably receive some dollars for the land

coverage we will allow her to transfer, and if so, then it is

clear that she has some “use” left in her SEZ lot that would

defeat her takings claim. Certainly she should not be

allowed to clog up the courts until she has fully exhausted

every attempt to avail of herself of these special TDR rights,

nor is her cgse “ripe” until she has done so."

-19-

The sad fact is that this last-ditch defense worked --

at least before the District Court and the iWinth Circuit. Now

more than nine years after TRPA prohibited all further use

or construction on her lot, Mrs. Suitum is but another victim

of TRPA’s no-holds-barred war of attrition . . . still fighting

her well-funded public agency adversaries to try to have her

day in court.’

THE NINTH CIRCUIT’S APPROACH IN THIS

CASE, IF ALLOWED TO STAND, CARVES A

GAPING HOLE INTO THE "CATEGORICAL

TAKINGS RULE" CAREFULLY CONSIDERED AND

ARTICULATED BY THIS COURT IN LUCAS V.

SOUTH CAROLINA COASTAL COUNCIL.

Four years ago, this Court determined under facts

remarkably similar to the facts of the instant case that a

property owner who has been denied all economically

beneficial use of his or her vacant single-family residential

property as a result of the adoption or application of a

governmental land-use regulatory enactment has suffered a

“categorical taking” invoking the protection of the Fifth

” As the long, litigious battle underscored by the three

Ninth Circuit opinions in TSPC I, TSPC II and TSPC III

makes crystal clear, TRPA is no neophyte when it comes to

waging wars of attrition. At least five times the district

courts have ruled in favor of TRPA in that TSPC litigation,

only to be reversed on significant issues three times by the

Ninth Circuit, not to mention TRPA’s most recent

unsuccessful Writ of Certiorari to this Court. Those

consolidated cases are now in their 12th year of litigation,

and are back in the District Court where a stay has been

granted pending lengthy mediated settlement efforts currently

in progress.

- 20 -

Amendment. Thus, in Lucas v. South Carolina Coastal

Council, supra, this Court attempted to set this long-

lingering issue to rest when it held:

We think, in short, that there are good

reasons for our frequently expressed belief that

when the owner of real property has been called

upon to sacrifice all economically beneficial uses

in the name of the common good, that is, to leave

his property economically idle, he has suffered a

taking. Jd. at 1019. [emphasis in original]

In Lucas, this Court carved out only one narrow

exception to the “categorical rule” it enunciated, an exception

which is not relevant here -- i.e., where the regulation

deprives the landowner of all economically beneficial use of

his or her land, the State “may resist compensation only if

. . . [it] shows that the proscribed use interests were not part

of his title to begin with." Lucas, 505 U.S. at 1027.

Nowhere in Lucas did the Court suggest or even hint

that there may be still another gaping hole in the protections

afforded by the Fifth Amendment, such as that now suddenly

fashioned by TRPA’s creative self-defense experts and sold

to the District Court and the Ninth Circuit in the case of the

Petitioner.* That new “exception” if allowed to stand will

most likely quickly be latched onto by numerous other land

use regulators, at least throughout the Ninth Circuit, as a

way to help protect them from suit, thus threatening to again

submerge the well-articulated substantive rule in Lucas into

a new procedural quagmire.

* Inexplicably, in spite of the clear import of this

Court’s decision in Lucas, the Ninth Circuit in its Opinion

in the instant case made no mention of nor reference to

Lucas, nor did it offer any explanation whatsoever as to why

it did not consider Lucas to be relevant to its analysis.

= -

Pursuant to this newly-created “ripeness exception" to

the Lucas categorical takings rule, all the regulatory agency

apparently has to do when it adopts a land use regulaiion

prohibiting all economically beneficial use of a person’s

private property in the name of the common good is to be

sure to include a provision granting that property owner

some form of post-takings “transferable rights" -- purported

new “rights” the property owner may or may not be able to

sell at some unknown point in the future to some unknown

buyer, and for some unknown amount of dollars, in a

secondary TDR marketplace created by the agency resulting

from the placement of an artificial limit on the availability of

those “rights” to other regulated property owners. Thus, by

the magic stroke of the regulator’s pen, the agency is again

able to insulate itself from a takings challenge, at least until

the property owner whose land has been prohibited from use

first demonstrates that he or she has attempted to fully

navigate this new TDR maze by showing how or in what

manner the purported TDR “rights” did or did not ultimately

provide that owner with any modicum of post-takings

compensation. The result is to place an enormous if not

impossible new burden on the property owner -- in this case

Mrs. Suitum -- thus effectively blunting the clear dictates of

the Lucas categorical takings rule.

The reality is that the cleverly-crafted TDR gimmick

fashioned by TRPA as part of its regulatory scheme has

nothing at all to do with Mrs. Suitum’s use of her property,

but in fact is merely a transparent attempt to allow her the

possibility of recouping some very limited post-takings

dollars in a highly speculative secondary private marketplace

created by TRPA as part of its self-defense efforts.’

* To hammer the last nail into the proverbial coffin,

TRPA also ordained that even if Mrs. Suitum decided to

exercise her precious new “right” to sell one or more of the

TDR chits it had belatedly bestowed upon her, she must first

-%-

Unfortunately, both the District Court and the Ninth

Circuit fell for this gimmick lock, stock and barrel just as

TRPA’s self-defense experts had intended -- concluding that

in fact the TDRs purportedly made available to Mrs. Suitum

created a potential new use of her property that must first be

fully exhausted and evaluated as part of the “takings

calculus” before she could file and pursue her takings claim

in federal court. See Ninth Circuit’s conclusion that the

"transfer of development rights is a ‘use’ of SEZ property"

-- Appendix A-9 to Petition for Writ of Certiorari. But the

unvarnished truth is this TDR gimmick -- no matter how

high-sounding its label -- has nothing whatsoever to do with

the uses available to Mrs. Suitum on her own property or

any other property she owns to which they can be

transferred, but only with the highly speculative recoupment

at some later time of a few dollars for the loss she has

already suffered.

Lucas leaves no question that the proscription of the

Fifth Amendment that "private property shall [not] be taken

for public use, without just compensation" means exactly

what it says. As was repeatedly underscored by this Court

in Lucas, the central focus is necessarily on the uses that

agree to record a “Deed Restriction” which “permanently

retired” her lot -- that is, requiring her “voluntarily” to agree

to permanently greenbelt her lot in order to exercise her

“privilege” to recoup some meager portion of her lost value

by selling one of the TDR rights, assuming she could even

find a buyer. And, to add further insult to injury, the Ninth

Circuit found that Mrs. Suitum had no ability to seek redress

in the courts unless and until she first attempted to sell one

of those TDR rights, and if somehow she were successful in

finding a buyer, first “Deed Restricting” her property, at

which point her case would finally “ripen” sufficiently for

federal court review.

A eee Bet are eee ee 2 8S

-%-

have been circumscribed by the governmental regulation at

issue, that is the uses which remain after the regulation has

become effective, not the amount of devaluation of the

property due to the regulations. Time and again, this Court

in Lucas stressed this primary focus as to the uses which

remained after the regulation’s adoption. See, for instance,

the discussion in the majority opinion in Lucas at 1015:

"The second situation in which we have found categorical

treatment appropriate is where regulation denies all

economically beneficial or productive use of land"; and at

1015, citing Agins v. Tiburon, 447 U.S. 255 at 260, ".. .

the Fifth Amendment is violated when regulation . . . denies

an owner economically viable use of his land"; and at 1016,

citing Keystone v. Bituminous Coal v. DeBenedictis, 480

U.S. 470 at 495: “A statute regulating the uses that can be

made of property effects a taking if it ‘denies an owner

economically viable use of his land’"; and at 1016, ftnt. 7:

". . . the force of our ‘deprivation of all economically

feasible use’ rule is greater than its precision . . ."; and at

1019: ". . . when the owner of real property has been called

upon to sacrifice all economically beneficial uses in the

name of the common good, that is to have his property

economically idle, he has suffered a taking.”

In the case of Mrs. Suitum -- as was the case with Mr.

Lucas’s beachfront property in South Carolina -- there is

simply no dispute that the regulations adopted in the name of

environmental protection did in fact deny her all use of her

vacant, single-family residential parcel located in a nearly

built-out, residential neighborhood. Thus, effective upon the

date of TRPA’s adoption of the SEZ regulations and their

application to her property, Mrs. Suitum’s private property

became entirely useless"®. In a nearly identical manner, the

‘© While Mrs. Suitum did “appeal” the correctness of

TRPA’s SEZ designation of her lot, that appears to have

been both an unnecessary and futile act. TRPA’s regulations

«Bhs

South Carolina Beachfront Management Act, as it was

implemented by South Carolina’s Coastal Council, also

placed Mr. Lucas’s single-family residential lots in a “coastal

protected area", as to which all new “occupiable

improvements was flatly prohibited." Lucas, 505 U.S. at

1009."

In any event, it cannot and has not been disputed that

the clear effect of TRPA’s regulatory enactments at issue was

to prohibit the construction of a home on Mrs. Suitum’s

single-family homesite, the only remaining viable use that

would otherwise be consistent with the underlying zoning and

“allowed uses" in the surrounding residential neighborhood,

all in the name of “environmental protection" for the

common good. Following Lucas, that should have been the

end of the inquiry, but regrettably that is not the case.

and mapped SEZ designation of Mrs. Suitum’s lot were

hardly likely to be modified by the same agency that had

already field-verified and mapped the SEZ boundaries. That

supposed appeal process was really nothing more than

another round in the war of attrition. In fact, the taking of

Mrs. Suitum’s lot became operative the day the SEZ

prohibitions went into effect -- a takings that was clear on the

face of the regulations.

'! Interestingly, in Lucas the regulations there at issue

would have allowed Mr. Lucas to actually construct certain

small walkways and decks on his beachfront parcel having a

total area of not more than 144 square feet, which even this

Court found hardly was a viable “use” sufficient to defeat his

takings claim. See Lucas, 505 U.S. at 1009, ftnt. 2. In

contrast, the TRPA regulations at issue did not allow Mrs.

Suitum to make even that minimal “use” of her property by

constructing a similar small structure on her property.

Et a il Ae A A ee

> +

Il

IF ANYTHING, THE TDRs AT ISSUE GO TO

THE MATTER OF "JUST COMPENSATION", AND

HAVE NOTHING WHATSOEVER TO DO WITH THE

"RIPENESS" OF MRS. SUITUM’S TAKINGS CLAIM.

How should the so-called TDRs purportedly made

available by TRPA to Mrs. Suitum, a tor ae intone to

other similarly-situated lot owners whose properties were

also found by TRPA to be too “environmentally sensitive” to

be built upon, be correctly viewed in terms of the takings

calculus? The answer to that query, at least in the instant

case, seems clear.

Where, as here, those TDRs are at best intended to

provide some potential, albeit small, post-takings dollar

recovery to the property owner, not the actual transfer of use

rights by that property owner from one property to another

owned by that same property owner, then it would appear

those TDRs should only have relevance, if any, to the Just

Compensation component of the determination. Under no

circumstance, however, should they have any bearing on the

issue of the "ripeness" of the property owner’s takings case

for judicial review. Let us amplify.

| This Court has addressed the interplay of TDRs in the

takings calculus in only one other case -- Penn Central

Transportation Co. v. New York City, 438 U.S. 104 (1978).

In Penn Central, of course, the facts were entirely different,

and the TDRs at issue there were shown to be of potentially

valuable uses -- e.g., restricted commercial floor area in

downtown New York City. While Penn Central was told by

the City of New York that in order to preserve the historic

landmark Grand Central Terminal it would not be allowed to

builda proposed 55-story office tower immediately above the

Terminal, nevertheless under the City’s Landmarks

Preservation Law, Penn Central was given a special

- 26 -

offsetting right to transfer that same commercial floor area to

one or more of at least eight other existing office or

commercial buildings owned by Penn Central in the

immediate vicinity, thus allowing for the expansion of one or

more of those buildings by up to 20% more in floor area

than would have otherwise been allowed.

Of course, importantly in the case of Penn Central, it

already had a long and valuable existing “use” of its

Terminal site. What was being prohibited ("taken") was the

potential enlargement of that Terminal into the air space

owned by Penn Central above the structure, with the proviso

that the property owner could achieve essentially the same

total expanded commercial floor area through the

enlargement of the nearby commercial buildings it also

owned.

In stark contrast to Penn Central are the facts of Mrs.

Suitum’s case:

e She is allowed to make no use whatsoever of her

own residential property, nor does she seek to

enlarge a structure already on that property.

® Unlike Penn Central, Mrs. Suitum has no other

property in the vicinity to which she can transfer

anything . . . nor is her parcel large enough so

that she can move her proposed home from a

preferred but environmentally sensitive area to a

less desirable building site (transfer her building

rights within her same parcel).

® Unlike the obviously valuable commercial floor

area Penn Central was being permitted to transfer

in exchange for the new restrictions on expansion

of the Terminal, Mrs. Suitum is at best merely

given the speculative chance under TRPA’s

chimerical TDR provisions to possibly sell to some

27 -

unknown buyer and for some unknown amount a

"TDR chit" for cash -- in effect, a redeemable

voucher that may or may not have any value, and

may or may not be able to be sold in the

secondary marketplace created by TRPA.

* And, of course, unlike Penn Central, Mrs. Suitum

is also being required to permanently greenbelt her

parcel if she avails herself of the TDR option,

even though she presumably would still be

burdened with all the responsibilities of private

ownership, ¢.g., the payment of taxes and

assessments, trash and debris removal, liability

risks, and the like.

At best, all TRPA offered to Mrs. Suitum is a

“redeemable voucher" -- not even one she can take to her

own local government or to TRPA and tum in for

compensation. Rather, according to TRPA, somehow

through a mystical and yet-to-be-explained process Mrs.

Suitum must try to locate a buyer in TRPA’s-created

secondary marketplace who is willing at some yet-to-be-

established price to purchase that redeemable voucher, and

then turn it back into TRPA in exchange for something said

to be of value -- e.g., 183 square feet of land coverage which

TRPA would then hand out, or something called a

“development right" purportedly needed only by someone

who wants to build a small multi-family structure. It sounds

remarkably similar to scrip money paid out when a

governmental treasury is barren, on the promise that maybe

someday the holder will be able to redeem that scrip money

for at least some cents on the dollar.

For TRPA to now suggest that its own TDR program

ree oe ee GONee o Gat Pene

‘ to contend that its own program provides a

bona fide “transferable use” that may “negate a takings

claim” in reliance on this Court’s analysis in Penn Central,

- 28 -

at best strains all credulity. (See TRPA’s assertion in its

Brief in Opposition to Certiorari, at p. 10.) To then take the

next giant leap of faith and contend that based on this Court's

decisions in Penn Central and Williamson County, the

burden of first “exhausting” TRPA’s labyrinthian TDR maze

should be placed upon Mrs. Suitum before her case is “ripe”

enough for her to be allowed to have her day in court, goes

far beyond what any court in the land has ever held is

required before a beleaguered property owner can seck

judicial protection of their important Constitutional rights.

Lucas teaches that where as here a public agency has

already adopted a regulation which on its face denies all

further use of private property, and where it seeks to defend

that regulation by demonstrating that the proscribed use was

in fact prohibited by long-established common law nuisance

principles, the burden of making that showing shifts to the

public agency. As the Court said in Lucas, it was not Mr.

Lucas, but the State of South Carolina which must make that

showing should it attempt to defeat Mr. Lucas’s otherwise

total takings claim. Lucas, 505 U.S. at 1031. That, of

course, puts the burden where it properly belongs ... on

the public agency that enacted the regulatory measure which

denies all viable use of an individual's private property.

There is no compelling reason not to employ the same

approach here, and place the burden where it properly

belongs -- on TRPA. If that burden is placed where it

belongs, then TRPA can also have its day in Court. Thus,

at the time when the judge or jury is determining the amount

of Just Compensation to be awarded, TRPA would have the

option of showing, if it can, that its TDR program has

already given Mrs. Suitum something of intrinsic value

equivalent to Just Compensation, and therefore she should be

deemed to have received at least the amount of Just

Compensation shown to be equal to the TDR’s value as a

credit against any Just Compensation to be awarded. While

it seems unlikely that TRPA will ever be able to carry that

in the recoupment by Mrs. Suitum of a few meager dollars,

and has nothing whatsoever to do with the uses to which

Mrs. Suitum can now put her own property. Nevertheless,

in muddling the concept of uses with the concept of value,"

the Ninth Circuit found that even if Mrs. Suitum could

theoretically recoup a small part of her lost value by the sale

of a TDR, that would defeat her takings claim, since

"regulatory ordinances that merely diminish the value of

property [do] not constitute a taking." A ‘pendix A-12 to

Petition for Writ of Certiorari. The difficulty is that by

Even if TRPA’s TDRs and the potential dollars

recoverable by their sale are viewed as part of the Just

Compensation equation, it is still difficult to conceive how

TRPA will meet its burden to show that they are in fact "Just

Compensation”. As the Ninth Circuit cautioned in TSPC J

in responding to TRPA's assertion that a property owner

should first be required to “ripen” his or her case by seeking

to pursue tunds under one of the state buy-out programs, "it

is not ‘compensation’ (Just or otherwise), either from TRPA

ee .." TSPC I, supra, 911 F.2d.

___" For a most insightful discussion of the issue of

economically viable use” vs. focusing on “remaining market

value", see the very recent decision of the Ninth Circuit in

Del Monte Dunes at Monterey, Lid. ¥. Monterey,

95 F.3d 1422 (9th Cir., Sept. 13, —""

- 30 -

focusing its attention on this issue of potential recoupment of

value, the Ninth Circuit lost sight of the fact that the Fifth

Amendment, as Lucas instructs, commands that the focus be

on the uses precluded. No post-takings remedy designed

merely to provide the property owner with the speculative

ability to later recoup some limited dollars should have any

relevance to whether a “taking” has occurred in the first

instance.

+

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the decisions of the District Court and Ninth Circuit at

issue are not only in direct conflict with the express holding

of this Court in Lucas and other applicable case law, but

threaten to undermine the essential Constitutional protections

afforded by the Fifth Amendment to the Petitioner, as so

carefully articulated and we thought settled in Lucas.

Accordingly, Amicus Curiae joins with the Petitioner in

respectfully urging this Court to reverse the holding of the

Court of Appeals below, and to issue its opinion and order

directing the District Court on remand to proceed with

dispatch with the trial on the merits of Mrs. Suitum’s case to

determine the amount of Just Compensation to which she so

Clearly entitled.

DATED: November 27, 1996.

Respectfully submitted,

LAWRENCE L. HOFFMAN

COUNSEL OF RECORD

ATTORNEYS FOR AMICUS CURIAE

TAHOE-SIERRA PRESERVATION

COUNCIL, INC.

APPENDICES

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SEC. 23-SE1/4 NE1/4 SEC. 22

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TI6N RI8E M.D.B.& M.

WASHOE COUNTY NEVADA

RECORDED OCT. 27, 1960