# Amicus Curiae Brief — Suitum v. Tahoe Regional Planning Agency

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0011%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 725

## Text

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

!
be
f
‘i
au

:
|
:
|

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.

o Me

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

1992 AERIAL PHOTO OF

MILL

CREEK DRAINAGE

MILL CREEK
RESERVOIR |

; Ve .
j
a it)
=>
—
[VG/ID

\) SEWER
| DISPOSAL

FACILITY
—
il C |
| e oy
5
re
[ie
/
/§
y
JA
|
// |
i
}} |
|
\|

APPENDIX B
IRPA MAPPED SEZ-
MILL CREEK DRAINAGE

SHOWING EXISTING RESIDENCES

a eee

JIIMID MIHA VW

0

LNINWISVI
JIVNIVYD ,0C
—-MIFAD TIN
O21 VIO 1394

FJOYNIVYO
MIFAD THN 9Z AVMHOIH ILVLS
(TUL VIO TIA
Velolslolslolsio|ojoio|9|o|2
_— AY vi | ci] gt | Zi | 8 61 | Of | 12 | 27 | £2 v2 | SZ 9
QvOY AVMAVYL tia
Mi Sigis 0 | 9 ig)
S v £ Z l
vsn VOWAIN
NYOWA = ig} |
8 | ¢ oO! v g C1

PORTION OF OFFICIAL PLAT

PORTION OF RECORDED PLAT
MAP—-MILL CREEK SUBDIVISION
SHOWING MAYHEW CIRCLE AREA

MILL CREEK ESTATES
SEC. 23-SE1/4 NE1/4 SEC. 22

ee

TI6N RI8E M.D.B.& M.
WASHOE COUNTY NEVADA

RECORDED OCT. 27, 1960

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0011%3A15. Public record. Not legal advice.