Joint Appendix — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

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No. 00-1167 (0)

In The

Supreme Court of the United States

TAHOE SIERRA PRESERVATION COUNCIL, INC.,

a California non-profit corporation

and membership organization, et al.,

7 Petitioners,

TAHOE REGIONAL PLANNING AGENCY,

a separate legal entity created pursuant

to Bi-State Compact, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

JOINT APPENDIX

MicHaet M. Bercer* E. Clement SuHuTeE, Jr.*

GIDEON KANNER Fran M. LayTon

Bercer & Norton E.LuLIisoNn Fork

A Law CorporATION SHuTe, MiInHaAty &

1620 26th Street WeEINsBeRGER LLP

Suite 200 South 396 Hayes Street

Santa Monica, CA San Francisco, CA 94102

90404-4040 (415) 552-7272

(310) 449-1000 Counsel for Respondents

asmemmnecs L. Etaveneast (Additional Counsel for

HorrMAN Law Offices R

espondents listed on

3000 No. Lake Boulevard nsid

Post Office Box 7740 inside cover

Tahoe City, CA 96145

(530) 583-8542

Counsel for Petitioners

*Counsel of Record

Petition For Certiorari Filed January 18, 2001

Certiorari Granted June 29, 2001

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

OR CALL COLLECT (402) 342-2831 (Gy p>

JoHN L. MARSHALL

TAHOE REGIONAL

PLANNING AGENCY

P.O. Box 1038

Zephyr Cove, NV 89448

(775) 588-4547

Bit. Lockyer

Attorney General of the

State of California

RicHARD M. FRANK

Chief Assistant

Attorney General

MattHew RopriGuez

Senior Assistant

Attorney General

Daniev L. SigGEL

Supervising Deputy

Attorney General

Mary J. SCOONOVER

Deputy Attorney General

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

(916) 445-9555

Frankie Sue Det Papa

Attorney General

of the State of Nevada

WituaM J. Frey

Deputy Attorney General

100 North Carson Street

Carson City, NV 89701

(775) 687-6532

TABLE OF CONTENTS

Page

Relevant docket entries in the United States Dis-

trict Court for the Eastern District of California ..... 1

Relevant docket entries in the United States Dis-

trict Court for the District of Nevada.............. 1

Relevant docket entries in the United States Court

of Appeals for the Ninth Circuit................... 3

First Amended California-Side Complaint for

Inverse Condemnation, Denial of Constitutional

and Civil Rights, and Just Compensation and

SED vow cccccececceesecceccsccccccccccccecscces 4

Order from the United States District Court, D.

Nevada, dated January 28, 1998 ....... Pet. App. 128

Pretrial Order for Liability Phase of Lawsuit, filed

PUMITEER G, TID ccc cc cccccccsccccccccsccccccccccces 74

Stipulation and Order Not to Introduce Evidence

Regarding Individual Plaintiffs.................... 79

Trial exhibit number 1. Tahoe Regional Planning

BED cnceceneececcccccncecceccccccsccccccccens 83

Trial exhibit number 7. Tahoe Regional Planning

Agency Resolution No. 81-5 ..............660005 126

Excerpts from Ordinance No. 81-5 ....... Pet. App. 168

EY MPEP cawhoSueeesetesécccccccecececccccecs 159

Resolution (No. 83-21) Suspending Issuance of

Project Approvals .................455. Pet. App. 170

Excerpts from 1984 Regional Plan for the Lake

MED DRIER oo cece ccccccccccccccccccces Pet. App. 172

Trial exhibit number 78. Comparable Nevada Low

Capability Land Sales Chart - Table A........... 131

TABLE OF CONTENTS - Continued

Trial exhibit number 78a. Comparable Nevada

Low Capability Land Sales Chart - Table B...... 132

Trial exhibit number 81. Comparable Greenbelt

Land Sales Chart Nevada Tahoe Basin Act -

GED GF ccccccseecccnesevecesccecsasécconceess 133

Trial exhibit number 82. Comparable SEZ Lot

SED GENES © Tee OD ccccccsnecsensvcssenesecses 134

Trial exhibit number 244. Attachment C, Tahoe

Regional Planning Agency Resolution No. 82-11

- Resolution of the Governing Body of the

Tahoe Regional Planning Agency Adopting

Environmental Threshold Carrying Capacities

for the Lake Tahoe Region....................... 135

Findings of Fact, Conclusions of Law, and Order

from the United States District Court, D. Nev-

ada, dated January 15, 1999 ............ Pet. App. 57

Opinion from the United States Court of Appeals for

the Ninth Circuit, filed June 15, 2000....... Pet. App. 1

Order of United States Court of Appeals, Ninth

Circuit, filed October 20, 2000 denying rehear-

ing and rehearing en banc and dissent there-

BE cc ccccccnccccsccesscoesecescossues Pet. App. 156

Order from the Supreme Court of the United

States, Washington, D.C., dated, June 29, 2001 ... 192

RELEVANT DOCKET ENTRIES

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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

v. Tahoe Regional Planning Agency,

Case No. CV-S-84-816EJG

6/25/84 Complaint; summons issued

1/7/85 Defendants’ motion to dismiss granted in

part, denied in part, submitted in part

3/27/87 Order granting defendants’ motion for sum-

mary judgment

3/30/87 Judgment entered

12/9/91 USCA Order that judgment is affirmed in

part, reversed in part and remanded; case

reopened

1/21/92 Order granted changing venue to District of

Nevada

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

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

v. Tahoe Regional Planning Agency,

Case No. CV-R-84-257ECR

6/25/84 Complaint; summons issued

5/10/85 Order: Nevada’s motions to dismiss 2nd, 5th,

6th & 7th claims for relief granted; Califor-

nia’s motions to dismiss 2nd, 5th and 6th

claims for relief granted & TRPA’s motion to

dismiss 7th claim for relief of money damages

granted

6/3/86

11/19/90

10/28/91

2/21/92

12/9/92

11/15/94

7/7/95

10/10/95

1/15/99

3/5/99

Defendants’ motions for summary judgment

granted

Judgment from 9CA affirming in part, revers-

ing in part & remanding

filed first amended complaint

Order: court concurs in decision of East Dist

of Calif to grant parties’ petn for change of

venue & transfer to this court. Cases consoli-

dated for all further proceedings

Order: Defendants’ motion to dismiss

granted.

Judgment entered dismissing first amended

complaint.

Order from Court of Appeals affirming in

part, reversing in part and remanding

Answer filed to California side complaint

Answer filed to Nevada side complaint

Order granted bifurcating trial; liability to be

tried to court; if Ds are determined to be

liability, trial on issue of damages then be to a

jury

Findings of Fact, Conclusions of Law

Order granting motion to certify matter for

immediate appeal

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

8/9/90

8/27/90

7/8/91

8/10/94

6/15/00

10/20/00

Tahoe Regional Planning Agency

Docket No. 86-2266

Filed opinion: affirmed in part, reversed in

part, remanded

Filed amendment to opinion

Docket No. 87-2096

Filed opinion: affirmed in part, reversed in

part, remanded

Docket Nos. 93-15113, 93-15114

Filed opinion: affirmed in part, reversed in

part, remanded

Docket Nos. 99-15641, 99-15771

Filed opinion: affirmed in part, reversed in

part, remanded for entry of judgment in favor

of defendants

Order denying rehearing and denying rehear-

ing en banc

Filed opinion dissenting from denial of

rehearing en banc

Lawrence L. Hoffman

Gregg R. Lien

Philip A. Olsen

HOFFMAN, LIEN, FACCINTO

GARNETT & LIEBERMAN

Post Office Box 7740

Tahoe City, California 96145

(916) 583-8542

(702) 831-8542

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

The TAHOE-SIERRA CIV. NO: CVN 92-98-ECR

PRESERVATION (Base File)

COUNCIL INC., a (FILED MAR 17 1992)

California non-profit

FIRST AMENDED

corporation and

membership organization; CALIFORNIA-SIDE

)

BRUCE A. AMES and ) COMPLAINT FOR

JUDITH M. AMES; ) INVERSE

LAURA L. ANDERSON ) CONDEMNATION,

and JAMES E. , DENIAL OF

ANDERSON; ALFRED J. ) CONSTITUTOINAL AND

ANTONINI; CAROLYN J.) CIVIL RIGHTS, AND

APPLEBY; EDWARD ) JUST COMPENSATION

ARRI and BARBARA ) AND DAMAGES

ARRI; GEORGE P. )

ASCHE and PRISCILLA ) anin Oe

J. ASCHE; LEONARD W. ) spepuemnananneenaned

ASCHER and ADELINE ) PLAINTIFFS DEMAND

H. ASCHER; ALPINE _) A JURY TRIAL

INVESTMENT; NICK _)

BADAMI; WES )

)

BALLARD; M.A. BEHR

and ESTHER M. BEHR,

CLARENCE C.

BENEDICT; MAX V.

BENTLEY and MINNIE

R. BENTLEY; LEROY G.

BLACK; RICHARD A.

BLASCO and AIDA M.

BLASCO; ARLETTE I.

BROWN; ARTHUR C.

BYSTROM; ALLAN F.

CASE and TERUKO

CASE; DON N. CHOATE

and LORRAINE E.

CHOATE; EDWARD W.

CISLO, JR. and LA

VERNE C. CISLO;

JAMES D. CLEMENT;

ROBERT D.

COLCLAZIER; JAMES R.

COMPTON; CARL D.

COOK; DOROTHY MAE

COOK; HAROLD F.

CORNELIUS; JOAN

COSTA; DONALD

COTTEN; OLGA R.

CROSETTI; ALAN W.

DAGG; GWENDOLYN

IONE DAY; EDDY K.

DAYNE and ANNE M.

DAYNE; RICHARD

DEFENBAUGH and

TERESA DEFENBAUGH;

JOHN J. DESTEFANO;

JESS R. DETEVIS and

DIANE DETEVIS;

ROBERT E. DIXON and

JUDITH E. DIXON;

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STEVEN N. DOLIN and )

MARY T. DOLIN; )

MARILYN T. DURBIN; _)

KENNETH W. EBERLE _)

and BETTY L. EBERLY; )

WILLIAM A. EDWARDS, )

JR. and FRANCES M. )

EDWARDS; ANDRE )

YANN EGASSE; )

RONALD F. ELIOFF and )

DENNE M. ELIOFF; J. _)

ROY ELMS and )

ELIZABETH D. ELMS; _)

NEALE M. ENSIGN and )

CHRISTINA H. ENSIGN; )

SONIA D. ERICKSON; _)

PETER L. FAVRO; BEN )

H. FERGUSON; DEREK )

FERRIERA and DELORES)

FERRIERA; MOREY B. _)

FLEMING and )

DOROTHY R. FLEMING; )

WILLIAM J. FOLEY and )

SHIRLEY J. FOLEY;

DOUGLAS H. FORD;

FRANK A. FOTI and

ROSE A. FOTI; JUDITH

ANN FRIEDMAN; W.C.

FROELICH, INC.;

CLIFFORD A. FROST

and LORRAINE L.

FROST; MOSES D.

GARAY and ROSE

GARAY; FRANK M.

GARCIA; LAURA E.

GARCIA; F.W. GASSER

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and ROSE GASSER;

LOUIS GEORGE and

ELIZABETH GEORGE;

ANNA F. GERACI and

SALVATORE GERACI;

ERNEST 0. GERMANN

and VIRGINE M.

GERMANN;

CHRISTOPHER P.

GERSHEL and SHARON )

A. GERSHEL; WILLIAM )

L. GILL; KURT A. GRAF )

and NELLIE O. GRAF;

ROBERT U. GRANT

CIVIL ENGINEERING

CO., INC.; ROGER

DALE GRESHAM;

RICHARD H. GUZMAN

and CLAUDIA D.

GUZMAN; G.E.M.

DEVELOPMENT,

INCORPORATED; DAN _ )

HAMMON and SHERRIE )

HAMMON; CHARLES 6. )

HANSON, JR. and )

VIRGINIA R. HANSON; )

WILSON L. HARRELL; )

DAN M. HAUSERMAN; )

HELEN L. HEDRICK;

WAYNE F. HESS and

LORRAINE E. HESS;

DOUGLAS J. HINDS and

MARIAN O. HINDS; J.C.

HINTON and LA VAUN

E. HINTON; DONALD I.

HITT; LOREN

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HOLMWOOD; DONNA )

IVY; CARLTON S. )

JAMES; JOHN )

JAVORSKY and HELEN )

JAVORSKY; K.D. )

JEFFERSON and )

WINNIFRED A. )

JEFFERSON; EDWARD )

N. JELLINS and JANET )

L. JELLINS; RUDOLPH _)

JOHNSON and PATRICIA)

JOHNSON; ARNE )

JORGENSEN; VINCENT )

S. KEELE and )

TEDDYANNA P. KEELE; )

ROY KERTON and )

LADONNA KERTON; _ )

MIKLOS J. KISIDAY )

and VALIRIA E. )

KISIDAY; VIRGINIA J.)

KOTECKI; PETER )

LANGE; OLAF O. )

LARSON; CHARLES wW. )

LEW; ROBERT E. )

LIVESAY and FRANCES )

M. LIVESAY; HENRY G. )

LOUIE and LOUISE )

LOUIE; IAN D. )

MACGREGOR; MELVIN )

J. MADDEN and RUTH )

L. MADDEN; MARIO A. )

MANDOLI and ALICE)

M. MANDOLI; )

ANTHONY JOHN )

MARAN; DAN H. )

MARSHALL; LEONARD )

MAYRISCH, JR.; )

EDWARD J. )

MCCARTHY; HALL B. _)

MC ELREE and )

GEORGETTA B. MC )

ELREE; FRANK J. )

MERRITT AND )

SHARON M. MERRITT; )

HOWARD A. MILLER _)

and ANTOINETIA R. )

MILLER; ANKICA )

MILOSAVLJEVIC; )

CHARLES S. MITCHELL;) -

CARL V. MODUGNO; )

ERNESTINE H. MOORE; )

ANDREA C. MONIZ; )

ARTHUR L. MONTERO; )

HOWARD V. MORE; )

DEAN L. MORGAN and )

DENA M. MORGAN; )

ANATOLE J.

MOSKOLENKO; EMIL A.

NECHVATAL and

BERNICE M.

NECHVATAL; JOHN L.

NEWBILL and ANITA

L. NEWBILL;

CONSTANCE NOIA;

STEPHEN L. NORRIS

and JACQUELINE

NORRIS; PETER PANOS

and SOPHIA PANOS;

PAUL PAULSON and

MARILYN PAULSON;

EDDIE R. PEDERSEN

and DORIS J.

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PEDERSEN; MERLIN A.

PORTER and FERN K.

PORTER; PAUL DAVID

PORTER, LUCILLE

PRATHER; RICHARD

LEE PRITCHETT and

VIRGINIA RUTH

PRITCHETT; FRANK A.

QUADROS and

FRANCES M.

QUADROS; WILLIAM R.

RAMSEY and LINDA R.

RAMSEY; RUDY

REGALADO and

JOSEPHINE M.

REGALADO; SARAH

REYNOLDS and

SARGENT REYNOLDS;

ROBERT W. RIEB;

QUENTIN H. RINK;

GEORGE R. ROBINSON;

ROCKY RIDGE

PROPERTIES; LARRY D. )

RUDY; EUGENE SAKAI )

and BETTY SAKAI; )

JOHN G. SANCHEZ and )

MARY M. SANCHEZ; )

E.S. SARRO and )

ELEANOR M. SARRO; _)

CHARLES OLIVER SASS; )

PATRICK N. SATALINO; )

DONALD E. SAUNDERS )

and GWEN SAUNDERS )

(DECEASED); )

FREDERICK SCHULZ;

DAVID J. SHERDEN )

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an)

and SHARON L. )

SHERDEN; SEIJI SHIBA; )

BRUCE E. SIMKINS; J. _)

ROCKWELL SMITH and )

PATRICIA SMITH; )

BERTRAM S. SOLOMON )

and SYLVIA M. )

SOLOMON; MARK )

THOMAS SPRAGGINS; )

EDWARD K. STEARNS; )

FREDERICK A. STREIB )

and ROSEMARY STREIB; )

SUGARPINE )

INVESTMENTS, INC.; )

A.J. SULME; DONALD P.)

SWAN; TAHOE ALPINE )

PROPERTIES LTD.; )

WILLIAM E. THACKREY )

and SYLVIAN E. )

THACKREY; LORENE )

THOMAS; LINDA A. )

THOMPSON and ALLAN)

J. THOMPSON; ROBERT )

E. TOLBERT and IRENE )

TOLBERT; FRANK W.

TRABUCCO and MARY

S. TRABUCCO; JAMES

R. TREMBATH;

DONALD PAUL

TURNER and DORIS A.

TURNER; U-HAUL CO.

OF SACRAMENTO;

NEALAND R.

UNDERWOOD and

DELLA UNDERWOOD;

RON UHARRIET;

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ROBERT URSO; )

RICHARD G. )

VENTRESCO and )

DARLEEN P. )

VENTRESCO; NORBERT )

A. WALZ, SR.; CAROLE )

A. WARD; WEST BAY _)

ENTERPRISES; )

LAMBERT P. WILLIE; )

ROBERT H. WILLIAMS; )

WOODROW H. WILSON )

and BARBARA C. )

WILSON; JOHN A. )

WOLLMAN; ROBERT C. )

WORKS and PATRICIA _)

W. WORKS; GRACE YA- )

CHIN LIN PAN; PETER )

I. YAMAMOTO and

MIDORI M.

YAMAMOTO; ENRIQUE

J. ZOLLNER

(DECEASED) and

PILAR FERNANDEZ

ZOLLNER; THEODORE

CAROL ZSUTTY and

MARIE ROSE ZSUTTY;

VIRGINIA R. ZUCK;

and JEFFREY G.

ZYBURA and LANA R.

ZYBURA.

Plaintiffs,

The TAHOE REGIONAL

PLANNING AGENCY, a

‘

Nee eee eee eee eae

separate legal entity

created pursuant to an

interstate Compact

between the States of

California and Nevada;

the State of Nevada; and

the State of California,

Defendants.

Plaintiffs allege as follows:

I. INTRODUCTION”

This First Amended Complaint for Inverse Condem-

nation, Denial of Constitutional and Civil Rights, and Just

Compensation and Damages (“First Amended California-

Side Complaint”) is being filed pursuant to the Order of

this Court entered at a status conference held before this

Court on March 13, 1992.

This action was originally filed on June 25, 1984

following the adoption by the TRPA of its 1984 Regional

Plan as described and alleged more fully hereinbelow.

After hearing on motions to dismiss, the District Court

entered its Order on January 22, 1985 dismissing the

monetary claims against the Defendants. Subsequently,

on March 27, 1987, the District Court, after hearing,

granted summary judgment to the Defendants as to the

remaining claims seeking declaratory and injunctive

relief. The matter was then appealed to the Ninth Circuit,

* For the convenience of the Court, all additions of new

matter to this First Amended Complaint and its Appendices are

shown in bold type.

where it was stayed pending that Court’s decision in

TSPC I - the companion Nevada-side case.

Subsequently, following its decision in TSPC I, the

Ninth Circuit ordered briefing and argument, following

which a separate three-judge panel of that Court issued

its opinion in this matter on July 8, 1991. (Tahoe-Sierra

Preservation Council, Inc., et al v. Tahoe Regional Planning

Agency, et al., 938 F.2d 153 (9th Cir. 1991) [“TSPC II”].)

That unanimous decision in TSPC II generally followed

the decision of the Ninth Circuit pane! in TSPC I, except

as to that portion of the latter’s divided decision in which

it had found that Plaintiffs’ damage claims arising from

its facial challenge against the 1984 Regional Plan were

not ripe because Plaintiffs had not first applied for an

amendment to that Plan. (TSPC I, Section III.A, 911 F.2d

1336-39.) The three-judge panel in TSPC II relied on the

rational [sic] of Judge Rozinski in his dissent in TSPC I,

and concluded that the district court had improperly

dismissed the Plaintiffs, Section 1983 and Fifth Amend-

ment takings claims-against TRPA for damages caused by

the 1984 Regional Plan. Subsequently, the Defendants/

Appellees’ request for rehearing and/or suggestion for

hearing en banc was denied by the Ninth Circuit on

September 19, 1991, and the matter remanded to this

Court on December 10, 1991. Thus, on remand to the

District Court, two separate Ninth circuit opinions offer

direction and guidance.

Thereafter, with the concurrence of the parties, the

Eastern District of California transferred venue of this

case (the California-side case) to the District of Nevada.

By its order dated February 21, 1992, this Court then

ordered the consolidation of the instant case (the Califor-

nia-side case) with the pending Nevada-side companion

case. [See Introduction to First Amended Nevada-side

Complaint filed on October 28, 1991 for additional

explanatory background.]

To respond to the directions of the Ninth Circuit and

related issues, this First Amended Complaint is being

filed to address the following specific matters:

(1) This First Amended Complaint dismisses

149 individual Plaintiffs owning 91 sepa-

rate properties, as those Plaintiffs have cho-

sen no longer to pursue this litigation

having previously sold their property to a

public buy-out agency. All references in

this Complaint and related Appendices to

these Plaintiffs have been deleted: (294

named Plaintiffs owning 258 lots/parcels

remain in this action.) Also dismissed are

the voting members of the TRPA Governing

Body named as defendants in the original

Complaint.

(2) The First, Third, and Fourth Claims for

Relief in the original complaint have been

deleted pursuant to the direction of the

Ninth circuit that they be dismissed by the

district court on mootness grounds. The

Sixth Claim for Relief has also been volun-

tarily dropped, as Plaintiffs are unable to

make the showing required by the Ninth

Circuit that it was TRPA itself which col-

lected the assessments for the public

improvements at issue. In addition, certain

portions of the general allegation provi-

sions of the original Complaint bearing on

these foregoing claims have also been

(3)

deleted for clarification and simplification.

The remaining Second, Fifth, and Seventh

Claims have been retained and renumbered

in the amended Complaint as the First, Sec-

ond, and Third Claims for Relief respec-

tively.

While the Ninth Circuit, in both TSPC I and

TSPC II, made it clear that the Plaintiffs’

takings claims commenced on June 25,

1981, the date of adoption of the prede-

cessor interim ordinance 81-5, the length or

terminal point of the “takings period” for

each Plaintiff is yet to be determined. While

it is true that TRPA adopted its new 1987

Regional Plan on June 1, 1987, which super-

seded its earlier 1984 Regional Plan (and

ordinance 81-5), nevertheless that 1987

Regional Plan effectively carried forward,

until at least July 1, 1989, and as to the SEZ

Plaintiffs until the present, the very same

total prohibitions on building or use of lots

identified as SEZ, or Class 1, 2, and 3 origi-

nally established in ordinance 81-5 and

made permanent by the 1984 Regional Plan.

Even when the 1987 Regional Plan’s new

individual Parcel Evaluation System (IPES)

formally took effect on July 1, 1989, as

described more fully below, a significant

number of named Plaintiffs’ properties

were again classified or scored by TRPA in

manner that continued to make them

unbuildable, therefore prolonging the

period of total denial and prohibition on

the use of those properties originally result-

ing from the enactment of the 1984

Regional Plan and the predecessor Ordi-

nance 81-5. Further, during the course of

(4)

this litigation, a substantial number of the

named Plaintiffs were compelled, absent

any other economically viable alternative,

to sell their, properties to the U.S. Forest

Service or the State of California pursuant

to the public buy-out programs of those

agencies. While the takings period applica-

ble to those named Plaintiffs, properties

can be said to have ended as of the date of

those sales, as set forth in this First

Amended Complaint Plaintiffs contend that

the take-it-or-leave-it purchase prices

offered by those buy-out agencies fell far

short of providing constitutionally-required

Just Compensation, in that in most cases

those government acquisition prices had

been substantially depressed by virtue of

TRPA’s absolute prohibition on building on

Plaintiffs, properties. In no event did the

compensation offered to or received by any

of the named Plaintiffs provide them just

compensation for the period of the tempor-

ary taking prior to the date of the acquisi-

tion by the public buy-out agency. Specific

allegations bearing on events that tran-

spired after the date of the filing of this

action which go to the issue of the length of

the takings period for each named Plaintiff

are set forth hereinbelow at Paragraphs

31-34, as well as in the specific allegations

regarding the circumstances applicable to

each of the properties at issue in this action

set forth in the pertinent Appendices

attached hereto and incorporated herein.

Additionally, as relevant to the claims made

herein, certain additional allegations are

included to “conform to proof” and/or to

determinations made by the district court

or the Ninth Circuit in the previous pro-

ceedings in this matter, such as clarifying

the relationship of the predecessor interim

ordinance 81-5 which the Ninth Circuit

specifically found had been “made perma-

nent” by the 1984 Regional Plan.

(5) Finally, certain changes are made for clari-

fication, consistency, simplification, or edi-

torial correction, and paragraphs and/or

claims have been re-numbered appro-

priately.

Il. JURISDICTION AND VENUE

1. This action alleges a regulatory taking of pri-

vate property without Just Compensation in contraven-

tion of the Fifth and Fourteenth Amendments to the

Constitution and a violation of 42 U.S.C. §§ 1983 and

1985 arising from the enactment by the Defendant

TAHOE REGIONAL PLANNING AGENCY (“TRPA”) of

certain land use regulatory measures described here-

inafter. Plaintiffs assert those regulatory measures

denied them all reasonable use of their private property

for a substantial period of time, generally for periods of

at least 6 to 11 years. The Defendant TRPA is a bi-state

planning body formed by an interstate compact, and

this action therefore arises under the Compact Clause

(Article 1, Section 10, Clause 3) of the Constitution of the

United States, the Fifth and Fourteenth Amendments to

the Constitution of the United States, the Federal Civil

Rights Act (42 U.S.C. Secs. 1983 and 1985), 28 U.S.C. Secs.

2201 and 2202 (Declaratory Relief), and the Tahoe

Regional Planning Compact (P.L. 96-551; 94 Stat. 3233) as

hereafter more fully appears. Jurisdiction of this Court is

invoked pursuant to the provisions of 28 U.S.C. Secs. 1331

and 1343 and Article VI(j) of the Tahoe Regional Planning

Compact (hereafter the “Compact”).*

* Article VI(j) of the Compact reads in pertinent part:

“(j) Legal actions arising out of or alleging a

violation of the provisions of this compact, of the

regional plan or of any ordinance or regulation of the

agency or of a permit or a condition of a permit issued

by the agency are governed by the following

provisions:

(1) This subdivision applies to:

(A) Actions arising out of activities directly

undertaken by the agency.

(B) Activities arising out of the issuance to a

person of a lease, permit, license or other

entitlement for use by the agency.

failure to act by any person or public

agency.

Such legal actions may be filed and the provisions of

this subdivision apply equally in the appropriate

courts of California and Nevada and of the United

States.

(2) Venue lies:

(A) If a civil or criminal action challenges an

activity by the agency or any person which

is undertaken or to be undertaken upon a

parcel of real property, in the state or

federal judicial district where the real

property is situated.

(B) If an action challenges an activity which

does not involve a specific parcel of land

(such as an action challenging an ordinance

of the agency), in any state or federal court

having jurisdiction within the region.

2. Venue is proper in this Court pursuant to Article

VI(j) of the Compact and 28 U.S.C. Secs. 1391 et seq., in

that all real properties which are the subject of this action

are situated in the State of California.

Ill. NATURE OF ACTION

3. This action challenges the validity and constitu-

tionality of certain specific provisions of the “Regional

Plan for the Lake Tahoe Basin” adopted on April 26, 1984

(hereafter the “Regional Plan” or the “1984 Regional

Plan”) by the Governing Body of the Defendant TRPA,

allegedly pursuant to the Tahoe Regional Planning Com-

pact*, which Regional Plan provisions made

(3) Any aggrieved person may file an action in an

appropriate court of the State of California or Nevada

or of the United States alleging noncompliance with

the provisions of this compact or with an ordinance or

regulation of the agency. * * *

(4) A legal action arising out of the adoption or

amendment of the regional plan or of any ordinance

or regulation of the agency . . . shall be commenced

within 60 days after final action by the Agency. ***”

* The original Tahoe Regional Planning Compact, an

interstate agreement, was adopted by the States of California and

Nevada and approved by the Congress and signed by the

President on December 18, 1969. See P.L. 91-148, 83 Stat. 360;

California.Government Code Section 66801; Nevada Revised

Statute 277.200. Said Compact was extensively amended in 1980

by legislative enactments of the States of California and Nevada,

which were then approved by the Congress and signed into law

by President Carter on December 19, 1980. See P.L. 96-551, 94 Stat.

3233; California Government Code Section 66801; Nevada

Revised Statute 277.200. Unless otherwise indicated all references

to the Compact are to the 1980 amended Compact.

permanent the nearly identical provisions contained in

the predecessor interim ordinance 81-5 adopted by the

TRPA Governing Body on June 25, 1981. Combined,

those measures directly and specifically prohibited any

reasonable, practical, viable, beneficial, or feasible use of

thousands of legally-created lots or parcels of privately-

owned real property in the Lake Tahoe Basin, and speci-

fically precluded the construction of single-family homes

on, or any other reasonable use of, the lots or parcels

owned by those Plaintiffs who are parties to this action

(named Plaintiffs). Further, as alleged more fully herein-

below, while the 1984 Regional Plan was subsequently

superseded by TRPA’s adoption of a revised 1987

Regional Plan for the Lake Tahoe Basin which became

effective on June 1, 1987 (“the 1987 Regional Plan”), that

1987 Regional Plan continued in effect for an additional

lengthy period of time, and in the case of certain named

Plaintiffs until the present, the same complained-of reg-

ulatory prohibitions made applicable to the named

Plaintiffs’ properties by the 1984 Regional Plan and the

predecessor interim ordinance 81-5, all as more speci-

fically alleged hereinafter. This action is brought by the

Plaintiff TAHOE-SIERRA PRESERVATION COUNCIL,

INC. (hereafter “PRESERVATION COUNCIL”), a non-

profit membership organization whose principal purpose

is to represent the interests of Lake Tahoe area property

owners who are its members, and by the 294 individu-

ally-named Plaintiffs, each of whom is the owner of real

property located within the Lake Tahoe Basin subject to

the prohibitions and restrictions contained in the

Regional Plan complained of herein. Specifically, this

action seeks just compensation and/or monetary relief

based on the following claims:

A. FIRST (Formerly SECOND) CLAIM FOR

RELIEF: Stream Environment Zone

(“SEZ”) properties - Damages for Violation

of Fifth and Fourteenth Amendment Protec-

tions Against Taking Private Property With-

out Just Compensation.

B. SECOND (Formerly FIFTH) CLAIM FOR

RELIEF: Class 1, 2, and/or 3 Properties -

Damages for Violation of Fifth and Four-

teenth Amendment Protections Against

Taking Private Property Without Just Com-

pensation.

C. THIRD (Formerly SEVENTH) CLAIM FOR

RELIEF: Violation of the Federal Civil

Rights Act (42 U.S.C. 1983 and 1985).

IV. PARTIES

4. Plaintiff PRESERVATION COUNCIL is a Califor-

nia non-profit public corporation, in good standing,

incorporated on January 16, 1981, under the laws of the

State of California, and has its principal office in the State

of California. The PRESERVATION COUNCIL is a mem-

bership organization representing approximately 2,000

dues-paying members who own private real property,

both improved and unimproved, located in the Lake

Tahoe Basin, which real properties are subject to the

planning and regulatory jurisdiction of Defendant TRPA’*.

* Article II (a) of the Compact defines the precise

geographical boundaries of the “region” subject to the

The principal purpose of the PRESERVATION COUNCIL

is to serve and actively represent the interests of its

members, individually and collectively, before the Defen-

dant TRPA and other legislative bodies and regulatory

agencies in connection with its members’ use and enjoy-

ment of their private properties located in the Lake Tahoe

Basin, and to ensure the rights and interests of its mem-

bers are fully represented and protected insofar as possi-

ble. All of PRESERVATION COUNCILS’ members

owning real property in the Lake Tahoe Basin have a

direct interest in the planning and regulatory activities of

TRPA, and particularly in the specific provisions of the

1984 Regional Plan complained of herein which directly

and specifically prohibited any reasonable or practical

use of certain private real property as more fully set forth

hereafter. Among its members are each of the named

Plaintiffs joining in this action, each of whom own

legally-created lots or parcels of real property located

within the Lake Tahoe Basin, which properties are located

in areas either identified by the 1984 Regional Plan as a

so-called Stream Environment Zone (“SEZ”) or in a so-

called Land Capability Class 1, 2, and/or 3 area, and

therefore are subject to the permanent prohibitions and

restrictions imposed by the Defendant TRPA set forth in

its 1984 Regional Plan, its predecessor interim ordinance

81-5, and which were continued in full force and effect

even after adoption of its revised 1987 Regional Plan,

all as described more fully hereafter. Additionally, the

PRESERVATION COUNCIL members include numerous

jurisdiction of the TRPA. For purposes of this Complaint, that

region is commonly identified herein as the “Lake Tahoe Basin”.

others who also own properties in the. Lake Tahoe Basin

subject to the prohibitions on use of SEZ or Class 1, 2,

and/or 3 properties imposed by the Defendant TRPA

which are the subject of this action. The PRESERVATION

COUNCIL, through its authorized representatives,

actively participated in the entire TRPA regional planning

process leading to the adoption of the 1984 Regional Plan

at issue in this action, and attended and expressed its

views and concerns, orally and in writing, at each public

hearing held by the Defendant TRPA in connection with

the consideration of the 1984 Regional Plan at issue

herein, as well as in connection with the adoption of

Ordinance 81-5 and the revised 1987 Regional Plan

addressed herein. The PRESERVATION COUNCIL, and

its members who own real property within the Lake

Tahoe Basin and who have made substantial financial

investments in their property, are directly and vitally

interested in the protection and the preservation of the

unique environmental and scenic resources of the Lake

Tahoe Basin, and firmly believe that that protection and

preservation can be achieved in a manner consistent with

the protections guaranteed by the United States Constitu-

tion and other applicable laws (thus the name PRESER-

VATION COUNCIL). The PRESERVATION COUNCIL

therefore brings this action as a matter of public right to

compel Defendants, and each of them, to perform their

public duties and responsibilities in a manner that is fully

consistent with their statutory and Constitutional obliga-

tions.

5. Each of the named Plaintiffs listed in Appendices

I and II* hereto are owners of one or more lawfully-

created, vacant or undeveloped lots or parcels of real

property located in the State of California within the

jurisdiction of the Defendant TRPA, which lots or parcels

were subject to the specific and direct prohibitions on any

reasonable, practical, beneficial, feasible, or viable use set

forth in the 1984 Regional Plan, and the predecessor

interim ordinance 81-5 and successor 1987 Regional

Plan, due to the fact they appeared to be substantially in

areas identified as so-called “Stream Environment Zone”.

Additional relevant factual allegations regarding each of

such Plaintiffs, and the real property of each Plaintiff at

issue, are set forth in Appendices I and II hereto, applica-

ble to Plaintiffs owning SEZ properties within the Coun-

ties of Placer and El Dorado respectively, State of

California, which Appendices are incorporated herein as

if set forth here in full.

* In order to provide for a more orderly pleading, all of the

detailed allegations specifically regarding the property,/and

interests of each individual Plaintiff are set forth in separate

Appendices, grouped by geographical jurisdiction and category

of property involved, which Appendices are identified by an

appropriate designation: Appendix I - Plaintiffs Owning SEZ

Properties located in Placer County; Appendix II - Plaintiffs

Owning SEZ properties in El Dorado County; Appendix III -

Plaintiffs owning Class 1, 2, and/or 3 Properties Located in

Placer County; and Appendix IV — Plaintiffs Owning Class 1, 2,

and/or 3 Properties Located in El Dorado County. The

Appendices, which have been amended to bring them current

as of the time of filing this First Amended Complaint, also

allege with specificity the period and related circumstances of

the taking alleged to have occurred as to each Plaintiff's

property.

6. Each of the named Plaintiffs listed in Appendices

III and IV hereto are the owners of one or more lawfully-

created, vacant or undeveloped lots or parcels of real

property located in the State of California within the

jurisdiction of the Defendant TRPA, which lots or parcels

were subject to the specific and direct prohibitions con-

tained in the 1984 Regional Plan, and the predecessor

interim ordinance 81-5 and successor 1987 Regional

Plan, precluding any reasonable, practical, beneficial,

feasible, or viable use by virtue of their designation and

restrictions imposed in the Regional Plans, and accom-

panying Plan Maps, as being substantially in an area

identified as a Land Capability District 1, 2, and/or 3.

Additional relevant factual allegations regarding each of

such Plaintiffs, and the specific real property of each

Plaintiff at issue, is more particularly set forth in Appen-

dices III and IV hereto, applicable to Plaintiffs owning

properties in areas identified as within a Land Capability

Class 1, 2, and/or 3 area within the Counties of Placer

and El Dorado respectively, State of California, which

Appendices are incorporated herein as if set forth here in

full.

7. Defendant TRPA is a separate legal entity created

by the interstate Compact between the States of Califor-

nia and Nevada (see Compact, Article III (a)). Defendant

TRPA is under the direction of a Governing Body consist-

ing of 14 voting members (and one non-voting represen-

tative appointed by the President pursuant to Sec. 3 of

P.L. 96-551), and is otherwise subject to and directed by

the provisions of the Compact. Defendant TRPA, acting

through the required affirmative vote of the Defendant

members of its Governing Body, duly adopted the 1984

Regional Plan, and the predecessor interim Ordinance

81-5 and successor 1987 Regional Plan, and the pertinent

policies or provisions included therein, prohibiting any

reasonable use of Plaintiffs’ private real properties.

8. Defendant State of California and Defendant

State of Nevada are the parties to the bi-state Compact, a

contract between the two States. Each State adopted iden-

tical legislation creating the bi-state TRPA, including the

1980 amendments to the Compact. Each State has dele-

gated, transferred, or conferred a part of its sovereign

powers to the TRPA and invested the TRPA with the

police powers it purports to exercise in adopting those

portions of its Regional Plan at issue herein. Each State

appointed or designated four “State representatives” to

serve on its respective 7-member delegation*. The

* Article III(a) of the Compact provides for the following

representation on the 7-member delegations to the TRPA

Governing Body from each state:

California: 2 members appointed by the Governor; 1

member appointed by the Speaker of the Assembly; 1 member

appointed by the Senate Rules Committee (all of the foregoing

“shall represent the public at large within the State of

California”: 1 member appointed by each of the Boards of

Supervisors of Placer and El Dorado Counties; and 1 member

appointed by the City Council of the City of South Lake Tahoe.

Nevada: 1 member appointed by the Governor; the

Secretary of State or his designee; the Director of the State

Department of Conservation and Natural Resource (all of the

foregoing “represent the public at large within the State of

Nevada”); 1 member appointed by each of the County

Commissioners of Douglas and Washoe Counties; 1 member

appointed by the Board of Supervisors of Carson City; and a

seventh member appointed by the six other members, or by the

Governor (as is the case with the current appointee), in the

event the other six cannot agree on the seventh.

appointed representatives of each State directly partici-

pated in the deliberations and votes approving those

portions of the 1984 Regional Plan and other regulatory

measures at issue herein. Each State has accepted the

obligation to provide funding for the operation and activ-

ities of the Defendant TRPA as provided in Article VII(A)

of the Compact. Further, each Defendant State indepen-

dently enacted legislation and/or related mandates

requiring the collection and export of all sewage waste

from the Lake Tahoe Basin, and requiring the construc-

tion of major sewer treatment facilities and sewer collec-

tion and transport systems, which were constructed and

funded under the applicable requirements and laws of

each State, in part by assessments levied against all

affected private properties including the properties of the

named Plaintiffs. Each State is now a party to those

actions by the Defendant TRPA which deny and deprive

the named Plaintiffs of the benefits from the improve-

ments for which they have been assessed and paid, all as

more specifically complained of hereafter.

V. FACTUAL BACKGROUND

9. The Lake Tahoe “region” (“Lake Tahoe Basin”) is

that area defined in Article II (A) of the Compact. It lies

within the boundaries of the States of California and

Nevada, and is within the geographical boundaries of the

following local government jurisdictions - Placer County,

California; El] Dorado County, California; Washoe County,

Nevada; the unincorporated portion of Carson City, Nev-

ada; and Douglas County, Nevada. The City of South

Lake Tahoe lying within the E] Dorado County portion of

the Basin is the only incorporated city in the region. Both

Defendant States, and the aforementioned local govern-

ments, pursuant to applicable state laws and local ordi-

nances, exercise land use regulatory jurisdiction within

their respective areas and have adopted general planning

and/or zoning requirements for their respective portions

of the Lake Tahoe Basin as well as statutory procedures

for the division of land into lots or parcels. Further, as of

the date of filing this action, approximately 66% of the

land area of the Lake Tahoe Basin was within the owner-

ship of the United States government, managed by the

United States Forest Service. A total of approximately

72% of the Lake Tahoe Basin (as of the date of filing this

action) was publicly owned, either by the Forest Service

or other federal agencies, by the Defendant States, or by

local government jurisdictions. Approximately 28% of the

land areas of the Lake Tahoe Basin are currently in pri-

vate ownership, and approximately 15% of the Lake

Tahoe Basin is considered to be “urbanized”.

10. Commencing in the late 1800's, in response to

demands from families and individuals seeking summer

homesites in the Lake Tahoe Basin, the first single-family

home subdivisions were “platted” and lot sales com-

menced, mostly along the California shoreline of Lake

Tahoe. By World War II, a large number of single-family

lots had been created, mostly on the California side of the

Basin, but with some on the Nevada side of the Lake

Tahoe Basin. Following World War II, there was a marked

increase in the urbanization of the Lake Tahoe Basin as a

result of major population increases in the western

United States and the desire for vacation homesites and

permanent residences in the Lake Tahoe Basin. Com-

mencing in the early 1950s and extending well into the

1970s, in response to the increased population demands

and growth in the western United States, public policy of

the federal, state and local governments permitted and

authorized, and even encouraged, the creation of single-

family residential homesites, mostly in single-family sub-

divisions, in the Lake Tahoe Basin. Taken as a whole, the

activities and policies of the federal, state and local gov-

ernments have encouraged, authorized, and approved the

creation and sale of thousands of private parcels and lots,

primarily as single-family homesites, within the Lake

Tahoe Basin, including specifically those lots or parcels

owned by the named Plaintiffs as alleged herein.

11. In the late 1960s, after extensive consideration,

debate, and negotiations, the States of California and

Nevada each adopted the necessary enabling legislation

to create the initial TAHOE REGIONAL PLANNING

AGENCY, which bi-state compact, after Congressional

approval, was signed by President Richard Nixon on

December 18, 1969. (P.L. 91-148, 83 Stat. 360; California

Government Code Section 66801; and N.R.S. 277.200).

12. Pursuant to the initial Compact, the TRPA’s

original Governing Body of 10 members was created and

mandated to adopt a Regional Plan for the Tahoe Basin

within 18 months after formation of the Agency. After the

initial adoption of an interim Plan, the Governing Body

undertook a detailed study of the Lake Tahoe Basin, and

after extensive debate and discussions, finally adopted a

new Regional Plan in December 1971 (the “1971 Regional

Plan”). Thereafter, during 1972, the TRPA Governing

Body adopted a number of ordinances implementing the

Plan, including it [sic] Land Use Ordinance (Ordinance

No. 4) adopted February 10, 1972. Pursuant to that 1971

Regional Plan and 1972 Land Use Ordinance, the entire

Basin was overlaid with a new set of land use districts or

zoning which substantially downzoned the Basin from

the theoretical capacity then permitted under local gov-

ernment plans and ordinances.

13. The 1972 Land Use Ordinance and 1971

Regional Plan specifically recognized the legitimacy of

existing, lawfully created single-family lots. Thus, Section

9.13 of the 1972 Land Use Ordinance provided:

“One (1) single-family house may be con-

structed on any existing legal lot or parcel of

record as of February 10, 1972, that is located in

_ any district except Tourist Commercial or Gen-

eral Commercial, provided, however, that this

section shall not, apply to lots in residential

subdivisions where the final map of such subdi-

vision was approved and filed for record more

than five (5) years prior to February 10, 1972,

and there has been no constructions of roads,

sewers or other substantial facilities serving the

subdivision, or the posting of performance

bonds assuring such construction, prior to Feb-

ruary 10, 1972.”

Additionally, pursuant to said 1971 Regional Plan and

1972 Land Use Ordinance, as well as its Subdivision

Ordinance (Ordinance No. 7) adopted on March 22, 1972,

the Defendant TRPA established a process to review and

approve additional new subdivision proposals intended

to create additional single-family lots and parcels, and

thereafter continued until December, 1980 to accept appli-

cations and process and approve proposals for new sin-

gle-family subdivisions within the Lake Tahoe Basin,

thereby authorizing the creation of additional single-fam-

ily lots or parcels.

14. Commencing in 1969, the United States Forest

Service and the Defendant TRPA cooperated in a joint

environmental land-use planning study of the Lake Tahoe

Basin. During 1971, the Forest Service, in cooperation

with the Defendant TRPA, completed a reconnaissance-

level land capability study of the Lake Tahoe Basin. Soil

and geomorphic information was compiled on maps at a

scale of 2 inches to the mile, from which a Land Capa-

bility Map was prepared for the Basin which was subse-

quently utilized in the 1971, TRPA Regional Plan.

Additionally, a detailed report, entitled “Land Capability

Classification of the Lake Tahoe Basin, California-Nev-

ada, A Planning Guide”, was written and prepared by

Robert G. Bailey, an employee of the Forest Service, and

others, which report was issued in 1974 (the so-called

“Bailey Report”). Pursuant to that joint land capability

study, all lands within the Tahoe Basin were divided into

seven principal categories, or Land Capability Classes,

distinguished according to the theoretical risk of erosion

or disturbance hazards. Class 1 areas include those areas

that have the highest theoretical risk of runoff or erosion

due primarily to soil types and steeper slopes, while

Class 7 areas are those where the existence of such cond’

tions is theoretically negligible. Additionally, the “Bailey

Report” and Bailey Land Capability Map recommended

that, for planning purposes, area-wide limits be placed on

“allowable impervious cover” (man-made coverage such

as footprints of houses and buildings, driveways, high-

ways and roads, and other similar impervious coverage)

ranging from 1% allowable coverage in Class 1 areas up

to 30% in Class 6 and 7 areas. The land capability criteria

were incorporated in the Defendant TRPA’s 1971

Regional Plan and 1972 Land Use ordinance with addi-

tional requirements that expressly permitted the con-

struction of single-family homes on lots and parcels

identified in all land capability areas, subject to certain

limits and other regulations contained in the Plan and

implementing ordinances.

15. In 1978, the Defendant TRPA approved its “Lake

Tahoe Basin Water Quality Management Plan” (hereafter

the “1978 Water Quality Management Plan”) pursuant to

Section 208 of the Federal Clean Water Act (P.L. 92-500),

which 1978 Water Quality Management Plan became the

water quality element of TRPA’s Regional Plan. The 1978

Water Quality Management Plan set forth programs for

waste management, surface water runoff management,

erosion control, and a program for implementation. Also,

for the first time, it identified and delineated areas

known as Stream Environment Zones (SEZs). The Plan

described a Stream Environment Zone as:

“Stream Environment Zone — That region: 1)

which surrounds a stream, including major

streams, minor streams and drainageways,

which owes it [sic] biological and physical char-

acteristics to the presence of water; 2) which

may be inundated by a stream; or 3) in which

actions or man or nature may directly or indi-

rectly affect the stream. A stream includes small

lakes, ponds, and marshy areas through which

the stream flows.” (1978 TRPA Water Quality

Management Plan, Vol. II, p. IlI-2

The SEZs were the [sic] delineated on the 1" = 400' scale

land use/land capability maps of the Defendant TRPA

using the procedures found in the 1978 Water Quality

Management Plan (Page VI-13 through 15 of Volume I,

and Pages III-2 through 6 of Volume II). The mapping

also included a buffer strip on either side of stream

channels ranging in width from 25 feet to 100 feet,

depending on the order or magnitude of the stream. The

1978 Water Quality management Plan also set forth con-

struction requirements in Volume II Handbook of Best Man-

agement Practices (“BMPs) for all construction occurring

within an identified SEZ, which requirements were

intended to minimize or avoid the potential adverse

impacts of construction within Stream Environment

Zones. Those BMPs provided in part that where a parcel

or lot was substantially with the boundaries of a SEZ

zone, then any new construction would be permitted only

if it was sited on the best available site on the property

taking into consideration drainage, access, soil type, veg-

etation, hydrological characteristics, elevation, topogra-

phy, and distance from the natural channel. Accordingly,

the 1978 Water Quality Management Plan continued to

permit the reasonable use of the parcels or lots owned by

those named Plaintiffs as being in SEZ areas, provided

construction of new homes on those SEZ lots took place

in strict accordance with the requirements, including the

BMPs, set forth in the 1978 Water Quality Management

Plan.

16. As of December 19, 1980, the effective date of

the amended Compact, the named Plaintiffs, and each of

them, were the owners of one or more legally-created lots

or parcels of record of real property within the Lake

Tahoe Region, as more specifically described and set forth

in Appendices I through IV to this Complaint. Each of

such lots or parcels owned by named Plaintiffs was

legally created, approved, and sold to named Plaintiffs,

or their predecessors in interest, pursuant to the legal

requirements of the Defendant State of California, and

the applicable local government and/or TRPA require-

ments for the creation of such lots or parcels. The zoning

and other land-use requirements of each of the affected

local government agencies having jurisdiction over said

properties authorized, and continue today to authorize,

the named Plaintiffs to construct a single-family home on

each parcel of record or make other reasonable use

thereof. Additionally, as set forth above, the lawfully-

adopted Regional Plan and ordinances of the Defendant

TRPA in force and effect on December 19, 1980, including

the 1978 Water Quality Management Plan described

above and the ordinances, rules and regulations adopted

thereunder, authorized the construction of at least one

single-family home on each of the parcels or lots owned

by the named Plaintiffs. Further, nearly all of the parcels

or lots owned by the named Plaintiffs are located in

existing single-family neighborhoods or subdivisions

which are today partially built-out with other single-

family homes (ranging from 20% to 90% built-out).

Nearly ail of those single-family subdivisions are cur-

rently served by paved roads, water systems, and sewage

collection and treatment facilities, as well as electrical

power, telephone service, and other necessary utilities.

As set forth with greater specificity in Appendices |

through IV hereto, Plaintiffs, and their predecessors in

interest, as the owners of said real properties, have been

obligated to pay those assessments and special taxes

assessed against their respective properties in partial

payment for the sewer systems, water systems, roads and

other improvements designed and intended to serve

homes and other structures to be built upon their proper-

ties. Further, each of the named Plaintiffs, in purchasing

their property and in continuing to make substantia! pay-

ments in the way of property taxes and bond assessments

for public improvements, have done so in reliance on the

fact that their lots or parcels were legally-created and

zoned for the purposes set forth with greater specificity

in Appendices I through IV, primarily for the purpose of

ultimately constructing a single-family home to serve as a

permanent, retirement or vacation residence. Further,

P'aintiffs have relied in good faith, and now to their

Jetriment, upon the actions of the Defendant States and

the Defendant TRPA in purchasing their properties, with

the understanding that until at least December 19, 1980,

their properties were considered to be lawfully-created

lots or parcels upon which Plaintiffs, provided they com-

plied with all reasonable requirements for building and

construction, could proceed to make a reasonable use by

building thereon a home or other structure at a time of

their choosing.

VI. 1980 AMENDED COMPACT, INTERIM ORDI-

AND PROHIBITIONS ON USE OF PLAINTIFFS’

PROPERTIES*

17. In the late 1970s, because of concerns about

alleged weaknesses in the initial TRPA Compact,

* True and correct copies of the Regional Plans and

ordinances referred to in this First Amended Complaint will be

submitted in evidence, or lodged with the Court, in a timely

manner when this matter is set for hearing.

legislators from the States of California and Nevada met

in private to negotiate amendments to the initial Com-

pact. Those amendments were subsequently adopted by

the Nevada Legislature at a special session of that Legis-

lature held in September, 1980, and signed by its Gover-

nor, and thereafter adopted by the California Legislature

and signed by its Governor. The legislation was then

ratified by the Unites [sic] States Congress (with minor

amendments added in Sections 2 through 5 of P.L. 96-551)

and approved by President Carter on December 19, 1980,

at which time the amended Compact became effective.

The amended Compact dramatically changed the

makeup, functions, and duties of the Defendant TRPA

and its Governing Body, including among numerous

others the following: an increase in the composition of

the Governing Body from 10 to 14 voting members;

changes in the Governing Body’s voting procedures for

taking actions upon certain matters as set forth in Article

Ill(g) of the Compact, including the requirement that at

least 4 members of each State’s delegation (a total of at

least 8) act to approve the environmental threshold carry-

ing capacities and Regional Plan amendments described

hereafter; changes in the project review procedures (Arti-

cles III(g)(2), V(g) and VI(b)); and the addition of a new

Article VII requiring preparation of Environmental

Impact Statements for certain project. The amended Com-

pact also required that the Defendant TRPA, acting

through its Governing Body, do the following:

(a) Within 18 months after the effective date of

the amendments to the Compact, the

Defendant TRPA was required to adopt

“environmental threshold carrying capaci-

ties” for the region; and

(b) Within one year after the adoption of the

environmental threshold carrying capaci-

ties, TRPA “shall amend the regional plan

(the 1971 Regional Plan) so that, at a mini-

mum, the plan and all of its elements, as

implemented through agency ordinances,

rules and regulations, achieves and main-

tains the adopted environmental threshold

carrying capacities.” (Article V(b) and (c))

Article V(c) of the Compact then sets forth at length and

with specificity the nature and content of the required

amendments to the Regional Plan.

18. Pursuant to the provisions of Article VI(a) of the

Compact, Defendant TRPA was required to adopt “all

necessary ordinances, rules, and regulations to effectuate

the adopted regional plan”. Pursuant to Article VI(b),

“No project (defined in Article II(h)) . . . may be devel-

oped in the region without obtaining the review and

approval of the agency and no project may be approved

unless it is found to comply with the regional plan and

with the ordinances, rules and regulations enacted pur-

suant to subdivision (a) to effectuate that plan”.

19. Pursuant to Article VI(c) of the Compact, a “lim-

ited moratorium” was also placed into effect, commenc-

ing December 19, 1980, to last during the 30-month

planning period in order to “halt temporarily works of

development in the region which might otherwise absorb

the entire capability of the region for further develop-

ment or direct it out of harmony with the ultimate plan”.

That moratorium placed numerical limits on the number

of building permits which could be authorized for new

residential units or commercial projects, temporarily pro-

hibited new subdivisions, planned unit developments, or

condominium projects that had not previously received a

complete tentative map, and imposed other limitations on

public works, casinos, and other development “until the

regional plan is amended pursuant to subdivision (c) of

Article V, or until May 1, 1982, whichever is earlier.”

20. In addition to the interim moratorium imposed

by Article VI(c) of the Compact, the TRPA Governing

Body, acting on its own initiative, shortly after being

reconstituted by the amended Compact, proceeded to

consider and adopt amendments to its 1978 Water Quality

Management Plan, allegedly to meet a mandate of the

State of California and the United States Environmental

Protection Agency, which amendments were adopted by

way of TRPA’s Ordinance 81-5 which was passed and

adopted by the Defendant TRPA on June 25, 1981. Pur-

suant to the applicable provisions of Ordinance No. 81-5,

the following interim prohibitions were placed into effect:

A. An interim prohibition was placed upon any

construction, use or activity on lands within

Land Capability Districts 1, 2, or 3, with a very

limited exception applicable only on the Nevada

side of the Basin permitting approval of con-

struction of some single-family homes on Class

1, 2, and/or 3 lots pursuant to a “case-by-case

system” set forth in the Ordinance (no such

exception was applicable to california-side

properties), and with the exception of certain

residential remodeling and reconstruction, pub-

lic works projects, outdoor recreation facilities,

and other specific exceptions set forth in Sections

2.00 of the Ordinance.

B. As to SEZ lands, Ordinance 81-5 also imple-

mented a Basin-wide “interim prohibition” on

any construction, work, use or activity upon lots

or parcels substantially within areas identified as

a SEZ, with certain limited exceptions for public

works projects, man-modified areas, and

approved erosion control work. The interim pro-

hibition on construction on lots or parcels within

SEZs expired on April 26, 1984, upon the adop-

tion of the amendments to the 1984 Regional

Plan, at which time it was replaced by the per-

manent prohibitions and restrictions described

hereafter.

In summary, by the adoption of its Ordinance 81-5,

an interim moratorium was imposed by the Defendant

TRPA, commencing on June 26, 1981, and continuing

until April 26, 1984, which prohibited construction of

single-family homes, other buildings, or any other viable

use of the lots or parcels of record owned by named

Plaintiffs found by TRPA to be in Stream Environment

Zone areas, or in Land Capability Districts 1, 2, and/or 3.

The interim moratorium was replaced by the 1984

Regional Plan containing an even more severe, perma-

nent, Basin-wide prohibition that precluded any reason-

able or practical use whatsoever of named Plaintiffs’

properties, all as more particularly alleged hereafter. Fur-

ther, as alleged more fully below, that permanent prohi-

bition established by the 1984 Regional Plan was

continued in effect by the pertinent provisions of the

successor 1987 Regional Plan, which 1987 Plan super-

seded the 1984 Regional Plan as of June 1, 1987.

21. On August 26, 1982, acting pursuant to its Reso-

lution No. 82-11, the Governing Body of the Defendant

TRPA adopted the “environmental threshold carrying

capacities” provided for in Article V(b) of the Compact.

22. On August 26, 1983, due to the failure of the

Defendant TRPA’s Governing Body to adopt its amended

Regional Plan within the one year required after adoption

of the environmental threshold carrying capacities, and

allegedly because it could not make the requisite project-

approval findings set forth in Article V(g) of the Com-

pact, the Defendant TRPA imposed by resolution still

another moratorium prohibiting its staff from accepting

or processing any additional applications for projects,

including single-family home construction or other rea-

sonable uses on Plaintiffs’ properties, which additional

moratorium extended by its terms until April 26, 1984,

the date of adoption of the amended Regional Plan (the

so-called “8-month moratorium”).

23. On March 29, 1984, the Defendant TRPA Gov-

erning Body finally approved on first reading, nearly one

year after the Compact’s deadline, the amendments to its

1984 Regional Plan at issue herein by approving its ordi-

nance No. 84-1. On April 26, 1984, the Governing Body

adopted its Ordinance No. 84-1 on second reading,

thereby approving said amendments to its Regional Plan

which became effective that date.* The 1984 Regional

* The Regional Plan amendments were originally adopted

on the key “first reading” by the Defendant TRPA Governing

Body by a 9-3 vote of its members, a bare one vote majority over

the required four votes from each state (2 members absent). On

the perfunctory “second reading”, it was confirmed in a show of

unity by a 13-0 vote (1 member absent). Pursuant to Article

VI(a), the Ordinance approving the amendments to the Regional

Plan consisted of a number of documents and maps, all as

more specifically listed and identified in Section 2.00 of

Ordinance No. 84-1. Additionally, the 1984 Regional Plan

included a number of Plan Maps and overlays, also

adopted by Ordinance No. 84-1, inciusing “Land Capa-

bility Overlays” (applicable copies oi i RPA’s Plan Maps

showing the lots or parcels of the named Plaintiffs are

included as part of the Appendices hereto). Said Plan

Maps depicted the boundaries of Class 1, 2, and 3 areas,

and SEZ boundaries (shown as “Ib” areas), subject to the

caveat contained in Section 2.14 of Ordinance 84-1, and

depicted each lot or parcel owned by the named Plaintiffs

at issue in this action.

24. The EIS for the 1984 Regional Plan prepared and

approved by the Defendant-TRPA and other supporting

documentation for the amendments to the 1984 Regional

Plan identified approximately 19,300 vacant, lawfully-

created, single-family lots or parcels that existed as of the

effective date of adoption of the 1984 Regional Plan

within the Lake Tahoe Basin, the great majority of which

are located in partially built-out, fully approved and

developed, single-family subdivisions served by roads,

sewers, water, and other utilities. The 1984 Regional Plan

continued to recognize such subdivisions as appropriate

and proper locations for single-family residences and

neighborhoods. Of those remaining vacant, lawfully-cre-

ated, existing single-family lots or parcels of record,

based upon the computerized data base of the Defendant

TRPA it was estimated that there were approximately

Plan became effective on April 26, 1984 when passed on second

reading.

6,400 lots or parcels partially or wholly in areas identified

on the Plan Maps as in Land Capability Districts 1, 2, or

3, and approximately 4,900 lots or parcels partially or

wholly in areas identified as SEZ areas. Of the foregoing

lots and parcels, approximately 5,650 were shown to be

substantially (50% or more) within Land Capability Dis-

tricts 1, 2, and/or 3, and 3,500 were shown to be substan-

tially (50% or more) within SEZ areas (a total of 9,150 lots

or parcels or 47% of the then remaining 19,300 vacant lots

or parcels). The lots or parcels owned by each named

Plaintiff were depicted on the Regional Plan Maps

adopted as part of the 1984 Regional Plan by the Agency,

and identified in the computerized data base of the

Defendant TRPA, as being within either a Class 1, 2, and/

or 3 Land Capabilty area, or within an area identified as a

SEZ (lb area) on the TRPA Land Capability Maps, so as to

be subject to the prohibitions in the 1984 Regional Plan

which are at issue.

25. As to all legally-created lots or parcels of record

located in so-called SEZ areas, including those specific

lots or parcels owned by those named Plaintiffs identified

in Paragraph 5 above and more specifically described and

alleged in Appendices I and II hereto, the 1984 Regional

Plan directly and specifically imposed a total and perma-

nent prohibition on the further use or development of

those parcels or lots as single-family homesites, or for

any other practical or viable use, through the adoption of

the following specific goals and policies set forth in the

“Conservation Element” of Part I of the 1984 Regional

Plan, pp. 99-102:

“GOAL #1 PROVIDE OR THE LONG-TERM

PRESERVATION AND RESTORA-

TION OF STREAM ENVIRON-

MENT ZONES

“The value of SEZs crosses many interests

and their preservation is a means for

achieving numerous environmental

thresholds. Policies that promote their

maintenance, protection, and restoration

are listed below.

. * »

“POLICIES

7» * *

“2. SEZ LANDS SHALL BE PROTECTED

AND MANAGED FOR THEIR NATURAL

VALUES

“SEZ lands and associated riparian vege-

tation are scare in the Basin relative to

other plant communities. Because SEZs

provide many beneficial functions (espe-

cially pertaining to water quality) only for-

est management practices, stream

improvement programs, and habitat restora-

tion projects are permissible uses.*

* The-three permitted “uses” are, for all practical

purposes, public type environmental projects of no practical use

or value to the owners of private property. “Forest management

practices” includes only limited thinning of dead, diseased, or

old trees, but does not permit commercial timer harvesting, nor

is such timber harvesting a practical use of Plaintiff’s properties

which are typically located in residential subdivisions and are

much too small to have any commercial timber resources or

potential.

“5.

“10.

* * *

NEW DEVELOPMENT SHALL BE SITED

OUTSIDE OF STREAM ENVIRONMENT

ZONES

“To prevent further loss of naturally-func-

tioning stream environment zones, no

new development shall be permitted in

stream environment zones except (1) pub-

lic works projects which satisfy the condi-

tions set forth in policies 6 and 7; (2) man-

modified stream environment zones

which satisfy the conditions set forth in

policy 8; (3) replacement of existing cov-

erage in conformance with policy 9; and

(4) where such encroachment into stream

environment zones provides the only fea-

sible access to buildable private property

for which all necessary building permits

have been obtained and stream environ-

ment zone lands are restored in the

amount of 1.5 times the area of stream

environment zone which is disturbed or

developed by the project. Site-by-site

inspection shall be made for all project

proposals in or near stream environment

zones.

DEVELOPMENT SHALL BE SET BACK

FROM THE EDGE OF RIPARIAN VEGE-

TATION

“A buffer strip outside of riparian vegeta-

tion will help protect the vegetation from

disturbance. The edge between riparian

zones and adjacent plant communities

also is critical to the needs of many wild-

life species. The TRPA shall establish

standards -providing for a significant

buffer around riparian vegetation contig-

uous to streams or other water bodies and

providing for a smaller buffer or preser-

vation policy for non-contiguous riparian

vegetation.” (Emphasis added.)

26. The foregoing restrictions were included in the

1984 Regional Plan (and similar provisions in the 1987

Regional Plan) allegedly to preserve and protect certain

environmental resources, and thus were intended for the

public’s benefit. The practical effect of these provisions

was to totally prohibit any new development or reason-

able use of legally-created lots or parcels found to lie

substantially in areas identified as so-called Stream Envi-

ronment Zones. According to the 1984 Regional Plan,

including the Regional Plan EIS, maps, and TRPA’s com-

puterized data base, there were approximately 2,900 acres

in urbanized areas mapped as SEZ, and 3,500 vacant,

privately-owned lots or parcels of record substantially

(50% or more of the lot or parcel) within areas identified

as a SEZ, including the lots or parcels owned by those

named Plaintiffs identified in Paragraph 5 above, as more

fully alleged in Appendices I and II hereto.

27. By virtue of the prohibitions and restrictions set

forth in the 1984 Regional Plan, as alleged in Paragraph

25 above, which Defendant TRPA is mandated to enforce

by the Compact, and combined with the similar prohibi-

tions and restrictions set forth in the predecessor interim

Ordinance No. 81-5 as alleged above, and the comparable

provisions of the successor 1987 Regional Plan as

alleged below, those named Plaintiffs identified in Para-

graph 5 (SEZ Plaintiffs) were deprived of the entire

practical, substantial, viable, beneficial, reasonable, eco-

nomic and feasible use of their properties for the period

' of time specified in the pertinent Appendix applicable

to each affected named Plaintiff’s property, there being

no other lawful or authorized practical or reasonable use

to which such properties could be put. Each parcel or lot

owned by each named Plaintiffs has unique characteris-

tics, including the extent of on-site damage or distur-

bance already existing, the distance to a watercourse, the

potential for stream degradation or man-caused erosion,

the extent and type of existing vegetation, and the nature

of the so-called stream or watercourse. Nevertheless, the

prohibitions set forth in the 1984 Regional Plan provided

no meaningful exceptions, alternatives, or variance pro-

cedures to be pursued by the named Plaintiffs owning

lots in or containing an SEZ, nor any means of hearing

or review to pursue or exhaust to determine whether or

not a proposal to build would otherwise meet the envi-

ronmental goals, policies, or environmental threshold car-

rying capacities adopted by TRPA. Instead, the only

remedy available to Plaintiffs was to challenge whether

or not their properties were in fact correctly identified by

TRPA as being substantially within a so-called Stream

Environment Zone, in which case the 1984 Regional Plan

imposed a irrebuttable presumption that prohibited any

building or development of a single-family home or other

structure on said properties. Named Plaintiffs further

chose not to attempt to challenge the correctness of

TRPA’s SEZ classifications prior to initiating this

action, acknowledging that TRPA had undertaken

extensive studies at great expense resulting in TRPA’s

SEZ classifications, and it was therefore neither likely

that designation was in error, nor was it reasonable to

place the burden on the named Plaintiffs to demon-

strate that TRPA was in error in its own classifications.

28. As to all those legally-created vacant lots or

parcels of record lying within so-called Land Capability

Districts 1, 2, and/or 3 (a total of approximately 6,400,

with approximately 5,650 situated 50% or more in said

Districts 1, 2, and/or 3), including those lots or parcels

owned by the named Plaintiffs identified in Paragraph 6

above and as specifically alleged in Appendices III and IV

hereto, the 1984 Regional Plan directly and specifically

imposed a total and permanent prohibition on the further

use or development of said lots or parcels as single-

family homesites, or for any other practical and viable

use, except a very minimal exception that theoretically

would have permited up to approximately 5% of the

affected Class 1, 2, and 3 properties in the entire Lake

Tahoe Basin to qualify for the right to construct a single-

family homebut which was never implemented by

TRPA. Said permanent construction prohibition and

restrictions were set forth in the “Soils Sub-Element” of

the “Conservation Element of the Plan, Goal 1, Policy 1,

pages 88-90 of the Plan, which read in pertinent part:

“POLICIES

“1, NO NEW RESIDENTIAL, TOURIST, PUB-

LIC SERVICE, RECREATION OR COM-

MERCIAL DEVELOPMENT SHALL BE

PERMITTED ON LAND CAPABILITY

DISTRICTS 1-3 EXCEPT AS NOTED IN

THE FOLLOWING POLICY.

“Development of environmentally sensitive

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

ee ee a Bk ae

permitted except as specified below. New devel-

opment for purposes of this policy is develop-

ment that creates additional land coverage.

During this period (sic), TRPA will conduct a

thorough evaluation of the environmental con-

sequences of development in these areas, and of

the options available to land owners, before

deciding what policies should apply during

later phases of the plan implementation.

(Emphasis added.)

“A. TRPA SHALL ESTABLISH A SINGLE-

FAMILY RESIDENCE EVALUATION

SYSTEM OR POINT PRIORITY SYS-

TEM, ON OR BEFORE JANUARY 1,

1985 (GOAL #1, POLICY #2, DEVEL-

OPMENT AND IMPLEMENTATION

SUBELEMENT). ON AUGUST 1, 1985,

APPLICATIONS FOR SINGLE-FAM-

ILY DWELLINGS IN LAND CAPA-

BILITY LEVEL 3 MAY BE ACCEPTED

FOR PROCESSING, UP TO 75 LOTS

IN NEVADA AND 25 LOTS IN CALI-

FORNIA, WHICH MAY BE

APPROVED FOR CONSTRUCTION

AS OF MAY 1, 1986. ON AUGUST 1,

1986, APPLICATIONS FOR SINGLE-

FAMILY DWELLINGS ON LOTS

MAPPED IN LAND CAPABILITIES

1-3 MAY BE ACCEPTED FOR PRO-

CESSING, UP TO 75 LOTS IN NEV-

ADA AND 25 IN CALIFORNIA,

WHICH MAY BE APPROVED FOR

CONSTRUCTION AS OF MAY 1, 1987.

THIS SAME PROCEDURE WILL

APPLY TO UP TO 75 LOTS IN NEV-

ADA AND 25 LOTS IN CALIFORNIA

WHICH MAY BE ACCEPTED ON

AUGUST 1, 1987 AND APPROVED

FOR CONSTRUCTION AFTER MAY 1,

1988.

“IF BY JANUARY 1, 1985, NO SIN-

GLE-FAMILY RESIDENCE EVALUA-

TION SYSTEM HAD BEEN

ESTABLISHED, AND UPON DEMON-

STRATION OF CONSISTENCY WITH

THE THRESHOLDS AND WATER

QUALITY OBJECTIVES, THE ABOVE

PROCEDURE SHALL PROCEED

WITH THE STANDARDS SET FORTH

IN GOAL #1, POLICY #3, OF THE

DEVELOPMENT AND IMPLEMEN-

TATION SUBELEMENT, ENTITLED:

‘DEVELOPMENT CRITERIA, MARCH

1982’ UNTIL A SINGLE-FAMILY RES-

IDENCE EVALUATION SYSTEM IS

ADOPTED OR UP TO FIVE YEARS

FROM ADOPTION OF THE PLAN,

AT WHICH TIME THIS PROVISION

WILL EXPIRE.

[Note: The foregoing “exception pro-

visions” were never implemented by

TRPA.]

Additionally, Policy 4 of Goal 2 of the “Development and

Implementation Priorities” sub-element of the Implemen-

tation Element, pages 126-127, provided:

4. SUBJECT TO THE LIMITATIONS OF

GOAL #1, POLICY #1, OF THE SOILS

SUBELEMENT, THERE SHALL BE A

PROHIBITION OF DEVELOPMENT

ON LAND CAPABILITY CLASSES 1-3

EXCEPT THAT NO MORE THAN 100

SINGLE FAMILY UNITS (25 in Cali-

fornia and 75 in Nevada) OF THE

RESIDENTIAL ALLOCATION

RECEIVING A PASSING SCORE

UNDER THE EVALUATION SYSTEM

FOR ANY YEAR SHALL BE FOR RES-

IDENTIAL PERMITS OUTSIDE OF

AREAS MAPPED AS LAND CAPA-

BILITIES 4-7. (Emphasis added)

“This provision as set forth in the Soils

Sub-Element, applies only to calendar

years 1986, 1987, and 1988 of the

allocation system and would stop

unless it is extended by consent of the

Board.”

[Note: Again the “exception provi-

sions was never implemented by

TRPA.]

Further, under the complicated phased priority system

established under Goal #1, Policies 1-3 of the foregoing

Sub-Element of the Implementation Element (pp.

121-126), only new residential development in areas hav-

ing the “characteristics of Land Capability Classes 4-7”,

to be selected with a future evaluation system that was

never established by TRPA, were to be eligible for con-

sideration for building, with all other proposals deferred

to an indeterminate time in the future, but no earlier than

five years after the adoption of the Plan, if at all, with

only the vague promise that the Defendant TRPA would

then review and possibly amend its development prohibi-

tions on Land Capability Class 1, 2, and 3 areas.

29. The foregoing restrictions applicable to Land

Capability Class 1, 2, and 3 areas were included in the

1984 Regional Plan allegedly to preserve and protect cer-

tain environmental resources. The practical effect of these

prohibitions was to totally prohibit any “new develop-

ment” on the legally-created lots or parcels owned by the

named Plaintiffs identified in Paragraph 6 above, as more

fully alleged and set forth in Appendices III and IV

hereto.

30. By virtue of the express prohibitions set forth in

Paragraphs 28 above, which prohibitions and restrictions

Defendant TRPA was mandated to enforce by the Com-

pact, and combined with the similar prohibitions and

restrictions set forth in predecessor Ordinance 81-5 as

alleged above and the comparable provisions of the

successor 1987 Regional Plan alleged hereinbelow, those

Plaintiffs named in Paragraph 6 above were deprived of

the entire practical, substantial, viable, beneficial, reason-

able, economic and feasible use of their property, there

being no other lawful or authorized practical or reason-

able use to which such properties could be put, com-

mencing as of June 25, 1981, the date of adoption of the

predecessor interim ordinance 81-5, and continuing for

the specific period of time specified in the pertinent

Appendix applicable to each named Plaintiff’s property.

Further, those prohibitions summarily precluded Plain-

tiffs from receiving, and took from them, the benefits for

which they had been assessed and paid in the sewage

collection and disposal systems, water systems, and/or

other public improvements built to serve their properties.

Further, the alleged exception allowing up to 75 lots in

the State of Nevada and 25 lots in the State of California

in Land Capability Class 3 areas to be considered during

1985 for possible construction beginning on May 1, 1986,

and an additional 100 lots (75 lots per year in Nevada and

25 lots in California) in Land Capability Classes 1, 2, and

3 during 1987 and 1988 respectively, even had it been

implemented by TRPA which it never was, offered such

a statistically insignificant and de minimis chance that

named Plaintiffs might qualify to use or build upon their

property that it cannot be considered a viable or mean-

ingful exception or variance to such prohibitions. Clearly

such an exception gives only the bare appearance of

fairness, while in fact the 1984 Regional Plan totally and

permanently precluded any construction on or reasonable

use of approximately 98% (not more than 75 out of

approximately 3300 were potentially eligible for approval

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

created lots or parcels in the State of California portion of

the Lake Tahoe Basin, including the properties owned by

the Plaintiffs identified in Paragraph 6 above. Further,

although the 1984 Regional Plan specified that there shall

be a new “development evaluation system” created to

review the extremely limited number of Class 1, 2, or 3

lots or parcels that may qualify for the “alleged excep-

tion” to the foregoing prohibitions, that new evaluation

system was never implemented by TRPA. As a conse-

quence of all the foregoing, those Plaintiffs identified in

Paragraph 6 (Class 1, 2, and 3 Plaintiffs) were deprived

of the entire practical, substantial, viable, beneficial, rea-

sonable, economic and feasible use of their properties for

the specific periods specified in the pertinent Appendix

applicable to each individual named Plaintiff is prop-

erty.

VIII. THE 1987 REGIONAL PLAN, PURCHASES BY

PUBLIC BUY-OUT AGENCIES, AND OTHER

FACTORS AFFECTING THE DURATION AND

EXTENT OF TAKING.

31. Following adoption of the 1984 Regional Plan

and the successful pursuit of a legal challenge in the

Eastern District of California against that Plan leading

to the issuance of a preliminary injunction on August 9,

1984, the Defendant TRPA chose to appeal that deter-

mination to the Ninth Circuit. After briefing, that

appeal was heard by the Ninth Circuit and a decision

rendered on July 22, 1985 upholding the district court's

issuance of the preliminary injunction. (People of Cali-

fornia v. TRPA, 766 F.2d 1308 (9th Cir. 1985.) Meanwhile,

the instant litigation had been filed, as well as the

companion case in the District Court for the District of

Nevada. In spite of the pendancy [sic] of all of that

litigation challenging the litigimacy of TRPA’s 1984

Regional Plan on various grounds, the Defendant TRPA

nevertheless chose steadfastly to defend its adopted

1984 Plan in court for many months, rather than to

rescind, repeal, modify, or even reopen its 1984

Regional Plan deliberations. However, following its

unsuccessful effort at the Ninth Circuit to overturn the

preliminary injunction as well as the appointment of a

new TRPA Executive Director, TRPA began to alter

course and established a process to try to “renegotiate”

its 1984 Regional Plan with interested parties. Accord-

ingly, for a period of nearly two years following the

denial by the Ninth Circuit of TRPA’s appeal of the

district court’s preliminary injunction, TRPA pursued a

process called “consensus negotiations”, that is, nego-

tiations facilitated by a third party, dealing with a wide

range of regional plan issues. The consensus negotia-

tions were long and drawn out, given the highly com-

plex and detailed nature of the subject. Finally, in late

1986, tentative agreements began to emerge on various

elements of a revised Regional Plan, and the TRPA

Governing Board then preliminarily adopted, on Sep-

tember 17, 1986, the initial amendments to the Goals

and Policies portion of its Regional Plan. Thereafter, an

extensive effort was begun to develop and recommend

the content of numerous lengthy and complex imple-

menting ordinances. Additionally, a detailed litigation

settlement agreement and related proposed implement-

ing ordinances were negotiated between the TRPA and

the California Attorney General and the League to Save

Lake Tahoe regarding their pending litigation, ulti-

mately leading to approval by TRPA of Ordinance No.

87-8, followed by Ordinance 87-9 adopted on second

reading on June 25, 1987. Pursuant to the terms of the

latter ordinance, the effective date of the 1987 Regional

Plan was established as of June 1, 1987, at which time

the 1984 Regional Plan was deemed repealed. Impor-

tantly, throughout that entire process, the 1984 Regional

Plan remained in full force and effect, and was the

underlying policy document setting forth TRPA’s policy

regarding the use of named Plaintiffs’ property.

32. The 1987 Regional Plan expressly continued

the prohibitions in the 1984 Regional Plan on land

coverage and land disturbance in SEZ areas, or in Land

Capability Districts 1, 2, or 3 until such time as the new

Individual Parcel Evaluation System (IPES) provided

for in the 1987 Regional Plan was implemented, which

that new Plan specified was to be January 1, 1989. Thus,

Policy 2, of Goal 1, of the Soils Sub-Element of the

Conservation Element, specifically provided that: “NO

NEW LAND COVERAGE OR OTHER PERMANENT

DISTURBANCE SHALL BE PERMITTED IN LAND

CAPABILITY DISTRICTS 1-3 [except for single-family

dwellings ultimately approved under IPES].” Similarly,

exactly like the predecessor 1984 Regional Plan, the SEZ

policies of the 1987 Regional Plan also provided that

SEZs could only be used for forest management prac-

tices, stream improvement programs, and habitat resto-

ration projects, and, that “NO NEW LAND COVERAGE

OR OTHER PERMANENT DISTURBANCE SHALL BE

PERMITTED IN STREAM ENVIRONMENT ZONES

(with very limited exceptions not applicable to con-

struction of single-family homes).” See Policy 5, Goal 1,

Stream Environment Zone Sub-Element, of the Conser-

vation Element of the 1987 Regional Plan. Thus, the

1987 Regional Plan continued in full force and effect,

and nearly word for word, the outright prohibitions on

use of SEZ lots contained in the predecessor 1984

Regional Plan. As to the prohibitions on use of or

construction of single-family homes in Class 1, 2, and 3

areas, the 1987 Regional Plan also carried forward,

nearly word for word, the same prohibitions contained

in the 1984 Regional Plan, but provided that an excep-

tion, known as the Individual Parcel Evaluation System

(IPES), would be developed and implemented allegedly

not later than December 31, 1988, with new single-

family dwelling construction to be evaluated in accor-

dance with that IPES system commencing on January 1,

1989. (See Policy 1, Goal 1, Development and Imple-

mentation Priorities, Implementation Element of the

1987 Regional Plan.) However, it was not until July 1,

1989 that the new IPES system was in fact fully devel-

oped and finally implemented. Thus, from the effective

date of the 1987 Regional Plan (June 1, 1987) to at least

July 1, 1989, the 1987 Regional Plan simply continued in

full force and effect the prior provisions of the 1984

Regional Plan complained of herein prohibiting any use

of Class 1, 2, or 3, or SEZ properties, without any excep-

tions, for that period of time. Even after July 1, 1989,

when IPES became effective, the outright prohibitions

on building in a SEZ remained in full force and effect,

as the IPES system provided that if a lot was fully

within a SEZ, it received a “O” score and continued to

be ineligible to receive a building allocation. While the

instant litigation primarily involves a challenge against

the taking created by the provisions of the 1984

Regional Plan (and its prececessor ordinance 81-5),

Plaintiffs nevertheless contend and allege that the com-

plained-of prohibitions set forth in the 1984 Regional

Plan were not terminated upon adoption of the 1987

Regional Plan, but to the contrary, were continued in

full force and effect by the 1987 Regional Plan. In the

case of the SEZ prohibitions, the 1987 Regional Plan

continued, nearly word-for-word, the same prohibitions

on use of SEZ lots, which prohibitions remain in effect

today. In the case of Class 1, 2, and 3 properties, the

nearly identical prohibitions found in the 1984 Regional

Plan were carried forward virtually word-by-word in

the 1987 Plan, at least until implementation of IPES on

July 1, 1989, six-months after the Plan’s specified dead-

line.

33. As to the Individual Parcel Evaluation System

(IPES), to the extent that that IPES program continued

the prohibition on use of Class 1, 2, and 3 properties

owned by named Plaintiffs in the instant litigation by

giving them a score of less than “buildable”, and by

failing to fully implement the provisions in a timely

way, and by preventing the “pass/fail” line to be low-

ered over a period of time as required by the 1987 Plan

so that all such Class 1, 2, and 3 lots would become

“buildable” as provided in the 1987 Plan, it now

appears clear that the implementation of the IPES pro-

gram by the Defendant TRPA has resulted in a further

purposeful continuation of the prohibitions contained

in the 1984 Plan as to the use of those Class 1, 2, and 3

properties receiving IPES scores by TRPA below the so-

called IPES “pass-fail line”. Therefore, in the case of the

affected named Plaintiffs specified in the attached

Appendices, it is further alleged and contended that

those prohibitions on any viable use of Class 1, 2, or 3

lands created by the 1984 Regional Plan were not only

continued de facto by the terms of the 1987 Plan until

implementation of the IPES system on July 1, 1989, but

as to those named Plaintiffs receiving IPEs scores of

less than the so-called “passing score”, those named

Plaintiffs were effectively simply reclassified to ensure

that the prior prohibitions on their property continued

in full force and effect for a further period of time,

which further period of time when combined with the

prior period of prohibition created by the 1984 Plan and

ordinance 81-5, constitutes the period of the taking cre-

ated by the original permanent prohibition on their

property imposed by the passage and implementation

of the 1984 Regional Plan, and its predecessor Ordi-

nance 81-5. As to all named Plaintiffs affected by the

terms of the 1987 Regional Plan, the specific effect of

that Plan on the period of the taking involved as to each

named Plaintiff is expressly set forth in the specific

allegations contained in the pertinent Appendices

attached hereto.

34. Further, during the pendency of this litigation,

a substantial number of named Plaintiffs felt com-

pelled, absent any other viable option, and in order to

off-set and mitigate the damages they had incurred, to

Sell their property to one of two public buy-out pro-

grams established on the California-side of the Basin

during the pendency of this litigation - either to the

United States Government, Department of Agriculture,

U.S. Forest Service, pursuant to the terms of the Burton-

Santini Act (the Forest Service buy-out), or to the State

of California, through the California Tahoe Conser-

vancy. While those public buy-out programs were

closely coordinated with TRPA in terms of the eligi-

bility requirements for acquisition, neither program

provided any compensation whatsoever for the period

of taking that preceded the acquisition by the buy-out

agency. Rather, appraisals were prepared to determine

so-called “fair market value’, as of the date of acquisi-

tion, and offers were made in reliance on those

appraised prices on a “take-it-or-leave-it” basis — that is,

the prices were not negotiable, but were required to be

based upon those appraised values. Accordingly, as

specified in the specific allegations of th= pertinent

Appendices attached hereto, in almost all cases involv-

ing Forest Service or California Tahoe Conservancy

acquisitions, the appraisals specifically reflected a sig-

nificant discount over true fair market value, as the

appraisals took into account the fact that the properties

were deemed “unbuildable” pursuant to the regulatory

requirements imposed by TRPA complained of herein.

Again, detailed allegations as to each affected nemed

Plaintiff are set forth in the pertinent Appendices

attached hereto.

IX. CLAIMS FOR RELIEF

Based on the foregoing factual allegations, and as

further alleged in the Appendices hereto, Plaintiffs seek

the following relief from this Court:

FIRST (Formerly SECOND) CLAIM FOR RELIEF

(SEZ Properties - Damages for Violation of Fifth and

Fourteenth Amendment Protections Against Taking

Private Property Without Just Compensation)

35. Plaintiffs reallege and incorporate herein by this

reference all of the allegations in Paragraphs 1 to 34

above.

36. The enactment by the Defendant TRPA of those

provisions in its 1984 Regional Plan prohibiting all ree-

sonable use of those legally-created lots or parcels within

areas identified as so-called Stream Environment Zones,

as set forth and alleged in greater detail in Paragraphs 25

through 27 above, coupled with the interim moratorium

enacted by the Defendant TRPA on June 25, 1981 (Ordi-

nance 81-5) applicable to Stream Environment Zone prop-

erties and the 8-month moratorium as alleged in greater

detail in Paragraphs 20 and 22 above, which were subse-

quently continued in full force and effect by the terms of

the 1987 Regional Plan which superseded the 1984

Regional Plan, on their face have permanently, directly,

and totally deprived, confiscated, and taken the private

properties of each name Plaintiff identified in Paragraph

5, have deprived such Plaintiffs of all practical, viable,

beneficial, reasonable and feasible use of their properties,

and have made their properties virtually unmarketable

and of no value to such Plaintiffs, without any compensa-

tion therefore [sic], for the specific periods of time speci-

fied in the pertinent Appendix attached hereto applicable

to each named Pilaintiff’s property, all in the name of

environmental protection and hence for public use and

benefit, and therefore indirect violation of the Fifth and

Fourteenth Amendments to the Constitution.

37. For the reasons set forth hereinabove, an actual

controversy exists between such Plaintiffs and Defen-

dants related to their respective legal rights and obliga-

tions. Those named Plaintiffs identified in Paragraph 5

above allege that the aforementioned provisions of the

Defendant TRPA’s 1984 Regional Plan applicable to pri-

vately-owned properties in SEZ areas, which made per-

manent the similar interim provisions set forth in TRPA’s

Ordinance 81-5, and which were continued in effect by

TRPA even after the replacement of its 1984 Regional Plan

by the comparable provisions of its 1987 Regional Plan,

constitute an unconstitutional taking and confiscation of

their properties in violation of the Fifth and Fourteenth

Amendments to the Constitution, and Defendants con-

tend to the contrary. Such Plaintiffs have suffered and

will continue to suffer irreparable injury as a result of

Defendants’ actions, and they have no other reasonable

administrative remedy to pursue. Such Plaintiffs there-

fore seek appropriate declaratory relief determining that

the actions of the Defendants complained of above consti-

tute a taking of such Plaintiffs’ private properties within

the meaning of the Fifth and Fourteenth Amendments to

the Constitution. Further, such Plaintiffs seek the award

of just compensation as required by the Fifth and Four-

teenth Amendments in an amount equal to the fair mar-

ket value of such Plaintiffs’ properties on the date they

were totally taken for public use, which Plaintiffs allege

was June 25, 1981, the date Defendants initial moratorium

was imposed by its Ordinance No. 81-5, or such other

amount determined to be just compensation extending

from the commencement date of the taking (June 25,

1981) until the Defendant changed its regulations in a

manner to permit Plaintiffs the right to build on or make

reasonable use of their property, or until such time as

Plaintiffs were compelled, absent any other viable option,

to sell their property to a public buy-out agency. The

specific circumstances and/or period of taking applicable

to each affected named Plaintiff is set forth in the individ-

ual Appendix applicable to each affected named Plaintiff

incorporated herein. The amount of just Compensation,

with interest thereon from the date of the original taking,

due to each Plaintiff shall be determined based upon the

proof submitted at trial applicable to each of such named

Plaintiffs’ properties.

SECOND (Formerly FIFTH) CLAIM FOR RELIEF

(Class 1, 2, and 3 Properties - Damages for

violation of Fifth and Fourteenth Amendment

Protections Against Taking Private Property

Without Just Compensation

38. Plaintiffs reallege and incorporate herein by this

reference all of the allegations in Paragraphs 1 through 34

above.

39. The enactment by the Defendant TRPA of those

prohibitions and restrictions contained in the amended

Regional Plan permanently prohibiting any use or new

development on those legally-created lots or parcels

within areas identified by TRPA as so-called Land Capa-

bility Classes 1, 2, and/or 3, as alleged in greater detail in

Paragraphs 28 through 30 above, coupled with the provi-

sions of the interim moratorium enacted by the Defen-

dant TRPA effective on June 25, 1981 and the 8-month

moratorium as alleged in greater detail in Paragraphs 20

and 22 above, and continued in full force and effect by

the terms of the 1987 Regional Plan which superseded the

1984 Regional Plan and interim Ordinance 81-5 as also

alleged above, on their face have permanently, directly

and totally deprived, confiscated, and taken the private

properties of each name Plaintiff identified in Paragraph

6 above, by unreasonably and unnecessarily depriving

such Plaintiffs of all of their practical, viable, beneficial,

reasonable, and feasible use of their properties, and mak-

ing them virtually unmarketable and of no value to such

Plaintiffs, without any compensation therefore [sic], for

the period of time specified in the Appendix attached

hereto applicable to each affected named Plaintiff, all in

the name of environmental protection and hence

allegedly for public use and benefit, and therefore in

direct violation of the Fifth and Fourteenth Amendments

to the Constitution.

40. For the reasons set forth above, an actual contro-

versy exists between Plaintiffs and Defendants related to

their respective legal rights and obligations. Those named

Plaintiffs identified in Paragraph 6 above allege that the

aforementioned provision of the 1984 Regional Plan

applicable to Class 1, 2 and 3 properties, which made

permanent the similar provisions set forth in TRPA’s

interim ordinance 81-5, and which were continued in

effect by TRPA even after the replacement of the 1984

Plan by the comparable provisions of its 1987 Regional

Plan, constitute an unconstitutional taking of their prop-

erties in violation of the Fifth and Fourteenth Amend-

ments to the Constitution, and Defendants contend to the

contrary. Such named Plaintiffs have and will continue to

suffer irreparable injury as a result of Defendants’ actions

and have no other reasonable administrative remedy to

pursue for the reasons set forth above. Such Plaintiffs

therefore seek appropriate declaratory relief as prayed

for hereafter and a judgment determining that the actions

of the Defendants complained of above constitute a tak-

ing of such named Plaintiffs’ private property within the

meaning of the Fifth and Fourteenth Amendments of the

Constitution. Further, such named Plaintiffs seek the

award of just compensation as required by the Fifth and

Fourteenth Amendment in an amount equal to the fair

market value of such Plaintiffs’ properties on the date

they were totally taken for public use, which Plaintiffs

allege is June 25, 1981, the date Defendant TRPA’s initial

moratorium was imposed by its Ordinance No. 81-5, or

such other amount determined to be just compensation

extending form [sic] the commencement date of the tak-

ing (June 25, 1981) until the Defendant TRPA changed its

regulations in a manner to permit named Plaintiffs the

right to build on or make reasonable use of their prop-

erty, or until such time as named Plaintiffs were com-

pelled, absent any other viable option, to sell their

property to a public buy-out agency. The specific circum-

stances and/or period of taking applicable to each

affected named Plaintiff is set forth in the applicable

Appendix incorporated herein. The amount of Just Com-

pensation, with interest thereon from the date of the

original taking, due to each affected named Plaintiff shall

be determined based upon the proof submitted at trial

applicable to each of such named Plaintiffs’ properties.

THIRD (Formerly SEVENTH) CLAIM FOR RELIEF

(Violation of the Federal Civil Right’s Act -

42 U.S.C. 1983 and 1985)

41. Plaintiffs reallege and incorporate herein by this

reference all of the allegations in Paragraphs 1 through 40

above.

42. Defendant TRPA, acting in its official capacities

and under color of State law, and in concert with the

Defendant States as alleged above, by virtue of its adop-

tion of those provisions of the 1984 Regional Plan com-

plained of above, as well as its enactment of those interim

moratoria alleged in Paragraphs 20 and 22 above, and

combined with its enactment of the comparable portions

of the successor 1987 Regional Plan as also alleged above,

has precluded all named Plaintiffs identified in Para-

graphs 5 and 6 above from making any practical, viable,

beneficial, feasible or reasonable use of their private

properties for the periods of time specified in the appli-

cable Appendices attached hereto, and has caused

named Plaintiffs to be deprived of their rights and privi-

leges secured by the Constitution, and particularly their

right not be deprived of their private property without

due process of the law and their right not to have their

private property taken for public use without Just Com-

pensation, all as more specifically alleged in the forego

ing Claims for Relief. As a direct result of Defendants

actions, which actions constitute an intentional and pur-

poseful denial of Plaintiffs’ rights protected and guaran-

teed to them by the Constitution, each named Plaintiff

has suffered substantial personal damages, in the amount

to be determined based upon the proof to be submitted at

trial. Accordingly, pursuant to the provisions of 42 U.S.C.

1983 and 1985(3), Plaintiffs, and each of them seek appro-

priate declaratory relief against Defendants and damages

against TRPA as prayed for hereafter.

WHEREFORE, Plaintiffs pray for relief as follows:

1. On the FIRST CLAIM FOR RELIEF, for a deter-

mination and declaration by the Court that the prohibi-

tions and restrictions adopted by the Defendant TRPA

totally prohibiting and precluding those Plaintiffs owning

properties in areas designated as SEZs from making any

reasonable or practical use of their property, and prohib-

iting any building or development thereon, including

specifically those provisions identified and set forth

above in this Complaint, constituted an unconstitutional

taking of such named Plaintiffs’ properties within the

meaning of the Fifth and Fourteenth Amendments to the

Constitution; and for an award of damages against

Defendant TRPA to provide just compensation for the

taking of such named Plaintiffs’ properties in an amount

to be determined upon the basis of proof submitted at

trial, or before a Master or Commission as shall be

appointed by the Court, plus interest thereon from the

effective date of the taking, for the period of the taking

found to be applicable in the case of each named Plain-

tiff.

2. On the SECOND CLAIM FOR RELIEF, for a

determination and declaration by the Court that the pro-

hibitions and restrictions adopted by the Defendant

TRPA totally prohibiting and precluding those Plaintiffs

owning properties in areas designated within Class 1, 2,

and/or 3 Land Capability Districts from making any rea-

sonable or practical use of their property, and prohibiting

any building or development thereon, including speci-

fically those provisions identified and set forth above in

this Complaint, constitute an unconstitutional taking of

such Plaintiffs’ properties within the meaning of the Fifth

and Fourteenth Amendments of the Constitution; and for

an award of damages against Defendant TRPA to provide

just compensation for the taking of such Plaintiffs’ prop-

erties in an amount to be determined upon the basis of

proof submitted at trial, or before a Master or commission

as shall be appointed by the Court, plus interest thereon

from the effective date of the taking, for the period of the

taking found to be applicable in the case of each named

Plaintiff.

3. On the THIRD CLAIM FOR RELIEF, for an order

and judgment of the Court declaring that the provisions

of the 1984 Regional Plan complained of herein, as well as

the predecessor interim moratoria alleged in Paragraphs

20 and 22 above and the applicable provisions of the

successor 1987 Regional Plan, have caused named Plain-

tiffs to be deprived of their rights and privileges secured

by the Constitution, particularly their right not to be

deprived of their property without due process of law

and their right not to have their property taken without

just compensation; and for an award of damages against

the Defendant TRPA to provide just compensation for the

taking of the named Plaintiffs’ properties in an amount to

be determined upon the basis of proof submitted at trial,

or before a Master or Commission as shall be appointed

by the Court, plus interest thereon from the effective date

of the taking, for the period of the taking found to be

applicable in the case of each affected Plaintiff.

4. For costs of suit.

5. For reasonable attorneys’ fees, recoverable under

the provisions of 42 U.S.C. Section 1988, 42 U.S.C. Section

4654, and other applicable law.

6. For such other relief as this Court deems proper

and just.

Dated: March 17, 1992

HOFFMAN, LIEN, FACCINTO,

GARNETT & LIEBERMAN

by: /s/ Lawrence L. Hoffman

Lawrence L. Hoffman,

Attorney for Plaintiffs

APPENDIX NO. I-2

PLAINTIFF CLARENCE C. BENEDICT

1. Plaintiff CLARENCE C. BENEDICT, is the former

owner of those certain single-family residential lot com-

monly known as Lot Nos. 84 and 85, Alpine Peaks subdi-

vision, described as Placer County Assessor Parcel Nos.

83-420-21 and 83-420-22 respectively, and located in the

unincorporated portion of Placer County, State of Califor-

nia. Plaintiff CLARENCE C. BENEDICT currently resides

at 8507 East Via Los Libros, Scottsdale, Arizona. The

Alpine Peaks subdivision, in which Plaintiff’s lots are

located, is a previously legally-approved subdivision,

approximately 30% built-out in the area neighboring

Plaintiff’s lots, served by paved roads, sewers, water,

electricity, and other utilities. Plaintiff’s lots front on

Courcheval Drive, a paved County road within said sub-

division.

2. Plaintiff purchased said lots in 1969, and since

that date timely paid all property taxes when due, and

those public assessments for bonds used to fund and

construct sewer and water facilities to serve said lots,

including but not limited to those constructed by the

Tahoe City Public Utility District and the Tahoe Truckee

Sanitation Agency. As of the date of filing this action,

comparable lots in the same neighborhood as Plaintiff's

lots had a fair market value of approximately $20,000.00

if they could be utilized as single-family homesites.

Plaintiff purchased his lots for the purpose of building a

vacation home.

3. The use of Plaintiff's lots as single-family home-

sites at all times relevant hereto was permitted under

applicable zoning of the County of Placer, and Defendant

TRPA’s 1984 and 1987 Regional Plans designated the

Alpine Peaks subdivision as a residential area allowing

for new single-family residential housing, and continua-

tion of existing residential development. Because of their

location in an existing residential subdivision, the appli-

cable local zoning, and other restrictions contained in

TRPA’s 1984 and 1987 Regional Plans, there were no other

reasonable, practical, viable or feasible uses to which

Plaintiff could put his property except for the construc-

tion of a single-family home.

4. Plaintiff's lots were shown on the TRPA 1984

Regional Plan Maps (Map No. A-8 attached hereto), and/

or in the computerized data base of the TRPA, as being at

least 25% within a Stream Environment Zone. Based upon

said classification and in view of the prohibitions and

restrictions contained in TRPA’s 1984 Regional Plan and

TRPA’s Ordinance 81-5, as more particularly set forth in

the Complaint, Plaintiff was totally precluded from

making any viable use of said property.

5. Upon adoption of the 1987 Regional Plan, TRPA’s

prohibition on use of Plaintiff's property remained in

effect until the criteria set forth in the new Individual

Parcel Evaluation System (IPES) were applied to Plain-

tiff’s property by TRPA. However, prior to receiving his

IPES score, Plaintiff felt compelled to sell his property on

July 1, 1988, to the United States Forest Service for the

take-it-or-leave-it price of $12,000.00 per lot, there being

no viable use to which he could put his property. Addi-

tionally, as a requirement of the sale to the Forest Service,

Plaintiff was required to pay-off, out of the sale proceeds,

any balance due on the aforementioned assessment obli-

gations, for which he received no possible benefit. The

sale was based on a government appraised value as of the

date of the sale which reflected a significant discount in

value due to TRPA’s restrictions on buildability and spec-

ifically excluded any compensation for the period of time

from June 25, 1981 (effective date of adoption of ordi-

nance 81-5) to July 1, 1988 (date of sale to the Forest

Service), during which period Plaintiff owned his prop-

erty and was totally prohibited and precluded by TRPA

from using his property to build a single-family home, or

from undertaking any other development or building on

said real property, thereby depriving Plaintiff of substan-

tially all reasonable and practical use of his property,

making said property virtually unmarketable, except by

“forced sale” to the government, and denying and taking

all of the special benefits paid for by Plaintiff in connec-

tion with those special assessments levied against said

property to pay for sewer and water improvements to

serve said property.

APPENDIX NO. II-2

PLAINTIFFS LAURA L. ANDERSON AND

JAMES E. ANDERSON; LINDA A. THOMPSON

AND ALLAN J. THOMPSON

1. Plaintiffs LAURA L. ANDERSON and JAMES E.

ANDERSON; LINDA A. THOMPSON and ALLAN J.

THOMPSON are the owners of that certain single-family

residential lot commonly known as Lot No. 6, Block Q,

Lakeshore Manor, described as E] Dorado County Asses-

sor Parcel No. 29-111-04, and located in the unincorpo-

rated portion of El Dorado County, State of California.

The Lakeshore Manor subdivision, in which Plaintiffs’ lot

is located, is a previously legally-approved subdivision,

served by paved roads, sewers, water, electricity, and

other utilities. Plaintiffs’ lot fronts on Beach Road, a

paved County road within said subdivision.

2. Plaintiffs purchased said lot in 1979, and since

that date timely paid all property taxes when due, and

those public assessments for bonds used to fund and

construct sewer and water facilities to serve said lot,

including but not limited to those constructed by the

South Tahoe Public Utility District. Plaintiffs purchased

their lot for the purpose of building a principal residence.

3. The use of Plaintiffs’ lot as a single-family home-

sites at all times relevant hereto was permitted under

applicable zoning of the County of El Dorado, and Defen-

dant TRPA’s 1984 and 1987 Regional Plans designated the

Lakeshore Manor subdivision as a residential area allow-

ing for new single-family residential housing, and contin-

uation of existing residential development. Because of its

location in an existing residential subdivision, the appli-

cable local zoning, and other restrictions contained in

TRPA’s 1984 and 1987 Regional Plans, there are no other

reasonable, practical, viable or feasible uses to which

Plaintiffs can put their property except for the construc-

tion of a single-family home.

4. Plaintiffs’ lot was shown on the TRPA 1984

Regional Plan Maps (Map No. H-17 attached hereto),

and/or in the computerized data base of the TRPA, as

being 100% within a Stream Environment Zone.

Based upon said classification and in view of the

prohibitions and restrictions contained in TRPA’s 1984

Regional Plan and TRPA’s Ordinance 81-5, as more partic-

ularly set forth in the Complaint, Plaintiffs were prohib-

ited and precluded by TRPA from using said property to

build a single-family home, or from undertaking any

other development or building on said real property.

5. Upon adoption of the 1987 Regional Plan, the

prohibition on use of Plaintiffs’ property remained in

effect until the criteria set forth in the new Individual

Parcel Evaluation System (IPES) were applied to Plain-

tiffs’ property by TRPA. By letter dated February 10,

1989, Plaintiffs were advised by TRPA that it had com-

pleted the Individual Parcel Evaluation System (IPES)

scoring of Plaintiffs’ parcel, and that on December 21,

1988, the TRPA Governing Board had determined that

lots with a score of less than 725 points were not eligi-

ble to build. Plaintiffs’ IPES score of 0 points, reflecting

its “SEZ” condition, therefore continued to render

Plaintiffs’ property “unbuildable” under the IPES sys-

tem. No appeal of that IPES score was taken, as Plain-

tiffs did not dispute that the IPES criteria had been

correctly applied to their lot, and therefore any such

appeal would have been futile. As of the date of filing

of this First Amended Complaint, Plaintiffs 2 continue

to be prohibited from making any practical or viable

use of their property by the complained-of regulations

of TRPR, which were first adopted on June 25, 1981, and

have prohibited any such use of said property from that

date to present.

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

TAHOE-SIERRA ) NO. CV-N-84-257-ECR

PRESERVATION COUNCIL, ) jo cy.N-92-98-ECR

INC., et al.

led Aug. 6, 1998)

Plaintiffs, (Fi us |

TAHOE REGIONAL

PLANNING AGENCY, et al.

Defendants.

PRETRIAL ORDER

FOR LIABILITY

PHASE OF LAWSUIT

(PROPOSED JOINT

ORDER)

TAHOE-SIERRA

PRESERVATION COUNCIL,

INC., et al.

Plaintiffs,

Vv.

TAHOE REGIONAL

PLANNING AGENCY, et al.

Defendants.

eee ee eee eee”

48. Lake Tahoe’s watershed geology, large lake volume,

and limited drainage area are largely responsible for

the Lake’s sparse algal population and clear waters.

49. During the three periods at issue in this lawsuit

(Period 1: Sudinanae 81-5 [August 23, 1981 - August

26, 1983]; Period 2: Resolution 83-21 [August 27,

1983 - April 25, 1984]; and Period 3: Injunction

[April 26, 1984 - July 1, 1987]), there were approxi-

mately 8,000 to 9,000 undeveloped single family lots

in the Lake Tahoe Basin which were classified as

50.

51.

52.

53.

Land Capability System Class 1 through 3 lands

(including Stream Environment Zone lots).

TRPA conducted extensive investigations before

developing the envirenmental threshold carrying

capacities (“thresholds”) and the 1984 plan, with

extensive public participation.

TRPA forcefully but unsuccessfully resisted the issu-

ance of a Temporary Restraining Order and subse-

quent Preliminary Injunction in the cosolidated

federal lawsuits entitled League to Save Lake Tahoe v.

TRPA and People v. TRPA (East. Dist. of Calif. Case

Nos. 84-0565 EJC and 84-0561 EJC).

From 1975 through 1996, Federal, State and local

governments have authorized or appropriated over

$378 million for efforts to restore and maintain Lake

Tahoe’s water quality (including funding to pur-

chase environmentally sensitive lots); approximately

$247 million of this is from the States of California

and Nevada.

The California Tahoe Conservancy is a California

state agency, which has expended significant monies

since its inception in 1985 on programs designated

to benefit water quality in the Lake Tahoe Basin. As

of May 27, 1997, this has included the following

approximate expenditures:

$55.7 million for the acquisition of 4,052 parcels

(approximately 5,348 acres). Of this total, approxi-

mately $13 million was expended to acquire 1266

parcels (approximately 1,307 acres) during the third

period of this lawsuit: April 26, 1984 - July 1, 1987;

$35.1 million in grants to local governments to

fund site acquisition and construction costs of 72

erosion control projects (of this total, approximately

$7.4 million was granted for 29 projects during the

third period of this lawsuit);

54.

55.

$2.5 million in grants to fund site acquisition

and construction costs of seven projects to restore

Stream Environment Zones and/or watersheds.

The Nevada Division of State Lands is a Nevada

state agency which has expended significant monies

pursuant to Nevada’s Tahoe Basin Act of 1986 to

purchase environmentally sensitive private residen-

tial lots in the Lake Tahoe Basin in an effort to stem

further degradation of Lake Tahoe. As of May 1,

1997, 496 parcels were purchased for a total cost of

over $25 million.

From October 1, 1981 through February 19, 1997, the

United States Forest Service (USFS) acquired 3,482

environmentally sensitive Lake Tahoe Basin private

lots (totaling 11,482.54 acres) under its Santini-Bur-

ton Land Acquisition Program (which is authorized

by Public Law 96-586, commonly called the Santini-

Burton Act.) Most were acquired through purchase,

at a cost of approximately $92 million; the remainder

were donated. Acquisitions and expenditures during

the three periods of this lawsuit were as follows:

Period 1 (August 23, 1981 - August 26, 1983):

California - 215 parcels acquired for $4,156,500

Nevada - 45 parcels acquired for $1,776,500

Period 2 (August 27, 1983 - April 25, 1984):

California - 167 parcels acquired for $4,871,800

Nevada - 27 parcels acquired for $1,126,000

Period 3 (April 26, 1984 - July 1, 1987):

California - 896 parcels acquired for $12,738,425

Nevada - 394 parcels acquired for $13,171,143

56. From October 1, 1983, through September 30, 1995,

57.

58.

the USFS allocated over $16 million to local govern-

ments for erosion control projects designed to bene-

fit Lake Tahoe’s water quality. These included the

following allocations: Fiscal Year (FY)? 1984:

$2,717,346; FY 1985: $1,410,920; FY 1986:

FY 1987: 1,191,538. , 6: $1,325,943;

Between 1981 and 1984, some owners of South Lake

Tahoe lots in land capability districts 1, 2 and 3

(including Stream Environment zones) were able to

and some did, sell sewer and building allocations to

owners of-higher-capability lots. Some all

sold for between $15,000 and $30,000. semen

Some parcels in this lawsuit were owned by plain-

tiffs who owned more than one lot within the Tahoe

region.

DANIEL E. LUNGREN, Attorney General

of the State of California

RICHARD M. FRANK (CSB 63482)

Senior Assistant Attorney General

DANIEL L. SIEGEL (CSB 67536)

Supervising Deputy Attorney General

MARY J. SCOONOVER (CSB 131259)

Deputy Attorney General

1300 I Street

P.O. Box 944255

Sacramento, CA 92444-2550

Telephone: (916) 327-7880 .

Attorneys for Defendant State of California

FRANKIE SUE DEL PAPA, Attorney General

of the State of Nevada

WILLIAM J. FREY (NV State Bar No. 4266)

Deputy Attorney General

Office of the Attorney General

100 North Carson Street

Carson City, NV 89701-7321

Telephone: (702) 687-7321

Attorneys for Defendant State of Nevada

LAWRENCE L. HOFFMAN (CSB 40204)

HOFFMAN LAW OFFICES

3000 No. Lake Boulevard

P.O. Box 7740

Tahoe City, CA 96145

Telephone: (702) 831-8542

(530) 583-8542

Attorneys for Plaintiffs

(Additional Attorneys for Defendants listed on the fol-

lowing page.)

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

TAHOE-SIERRA PRESERVATION ) NO. CV-N-84-257-

COUNCIL, INC., et al. ) ECR-(PHA)

Plaintiffs, / NO. CV-N-92-98-

ECR-(PHA)

(Filed Sep. 9, 1998)

STIPULATION

NOT TO

INTRODUCE

EVIDENCE

REGARDING

INDIVIDUAL

PLAINTIFFS;

ORDER

Hearing Date:

Sept. 10, 1998

Hearing Time:

2:00 p.m.

Courtroom: 1

SUSAN E. SCHOLLEY (NV State Bar No. 531)

Tahoe Regional Planning Agency

P.O. Box 1038

Zephyr Cove, NV 89448

Telephone: (702) 588-4547

Fax: (702) 588-4527

Attorney for Defendant, Tahoe Regional Planning Agency

Vv.

TAHOE REGIONAL PLANNING

AGENCY, et al.,

Defendants.

TAHOE-SIERRA PRESERVATION

COUNCIL, INC., et al.,

Plaintiffs,

TAHOE REGIONAL PLANNING

AGENCY, et al.,

Defendants.

ee eee ee ee ee ee

E. CLEMENT SHUTE, JR. (CA State Bar No. 36592)

ELLISON FOLK (CA Stare [sic] Bar No. 149232)

SHUTE, MIHALY & WEINBERGER

396 Hayes Street

San Francisco, CA 94102

Telephone: (415) 552-7272

Attorneys for Defendant, Tahoe Regional

Planning Agency

J. THOMAS SUSICH, (NV Bar No. 898)

CROWELL, SUSICH, OWEN & TACKES, LTD.

510 W. Fourth Street

P.O. Box 1000

Carson City, NV 89710

Telephone: (702) 882-1311

Attorneys for Defendant, Tahoe Regional

Planning Agency

It is hereby stipulated between the parties that since

this lawsuit consists of a facial, as opposed to an as

applied, inverse condemnation challenge of Tahoe

Regional Planning Agency development restrictions, the

parties will not introduce evidence regarding the specific

factual situations of individual plaintiffs during the lia-

bility phase of this lawsuit. As part of this stipulation, the

parties agree that, during the liability phase of this law-

suit:

1. No plaintiff depositions shall be offered as previ-

ously listed in the Pretrial Order (p. 40, lines 12-28; pp.

41-45); and

2. No plaintiff shall be called as a witness as previ-

ously designated in the Pretrial Order (Exhibit D, p. 1,

lines 22-28; p. 2).

Each party shall bear its own fees and costs in this

matter.

The parties respectfully request that the Pretrial

Order (p. 40, lines 12-28; pp. 41-45; and Exhibit D, p. 1,

lines 22-28; p. 2) be modified to reflect this stipulation.

Dated: 9/2/98

DANIEL E. LUNGREN, Attorney General

of the State of California

RICHARD M. FRANK, Sr. Assistant

Attorney General

/s/ Daniel L. Siegel

ANIEL L. SIEGEL, Supervising

Deputy Attorney General

MARY J. SCOONOVER

Deputy Attorney General

Attorneys for Defendant,

State of California

On behalf of all Defendants

FRANKIE SUE DEL PAPA,

Attorney General

for the State of Nevada

WILLIAM FREY

Deputy Attorney General

Attorneys for Defendant,

State of Nevada

TAHOE REGIONAL

PLANNING AGENCY

SUSAN E. SCHOLLEY

Attorney for Tahoe Regional

Planning Agency

SHUTE, MIHALY &

WEINBERGER

E. CLEMENT SHUTE, JR.

Attorneys for Tahoe Regional

Planning Agency

CROWELL, SUSICH, OWEN &

TACKES, LTD.

J. THOMAS SUSICH

Attorneys for Tahoe Regional

Planning Agency

Dated: 9/4/98

HOFFMAN LAW OFFICES

/s/ Lawrence Hoffman

LAWRENCE HOFFMAN

Attorneys for Plaintiffs

IT IS SO ORDERED:

Dated: Sept. 9, 1998

/s/ Edward C. Reed

JUDGE OF THE UNITED STATES

DISTRICT COURT,

DISTRICT OF NEVADA

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

PLAINTIFFS’ EXHIBIT 1

PUBLIC LAW 96-551 - DEC. 19, 1980

Public Law 96-551

96th Congress

An Act

To grant the consent of the Congress to the Tahoe

Regional Planning Compact, and to authorize the Sec-

retary of Agriculture and others to cooperate with the

planning agency thereby created.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled, That

in order to encourage the wise use and conservation of

the waters of Lake Tahoe and of the resources of the area

around said lake, the consent of the Congress is hereby

given to the Tahoe Regional Planning Compact heretofore

adopted by the States of California and Nevada, which

compact reads as follows:

TAHOE REGIONAL PLANNING COMPACT

Articte I. - Finpincs aNp DecLarRaTIONS OF Pouicy

(a) It is found and declared that:

(1) The waters of Lake Tahoe and other

resources of the region are threatened with deteriora-

tion or degeneration, which endangers the natural

beauty and economic productivity of the region.

(2) The public and private interests and invest-

ments in the region are substantial.

(3) The region exhibits unique environmental

and ecological values which are irreplaceable.

(4) By virtue of the special conditions and cir-

cumstances of the region’s natural ecology, develop-

mental pattern, population distribution and human

needs, the region is experiencing problems of

resource use and deficiencies of environmental con-

trol.

(5) Increasing urbanization is threatening the

ecological values of the region and threatening the

public opportunities for use of the public lands.

(6) Maintenance of the social and economic

health of the region depends on maintaining the sig-

nificant scenic, recreational, educational, scientific,

natural and public health values provided by the

Lake Tahoe Basin.

(7) There is a public interest in protecting, pre-

serving and enhancing these values for the residents

of the region and for visitors to the region.

(8) Responsibilities for providing recreational

and scientific opportunities, preserving scenic and

natural areas, and safeguarding the public who live,

work and play in or visit the region are divided

among local governments, regional agencies, the

States of California and Nevada, and the Federal

Government.

(9) In recognition of the public investment and

multistate and national significance of the recre-

ational values, the Federal Government has an inter-

est in the acquisition of recreational property and the

management of resources in the region to preserve

environmental and recreational values, and the Fed-

eral Government should assist the States in fulfilling

their responsibilities.

(10) In order to preserve the scenic beauty and

outdoor recreational opportunities of the region,

there is a need to insure an equilibrium between the

region’s natural endowment and its manmade envi-

ronment.

(b) In order to enhance the efficiency and govern-

mental effectiveness of the region, it is imperative that

there be established a Tahoe Regional Planning Agency

with the powers conferred by this compact including the

power to establish environmental threshold carrying

capacities and to adopt and enforce a regional plan and

implementing ordinances which will achieve and main-

tain such capacities while providing opportunities for

orderly growth and development consistent with such

capacities.

pret and administer its plans, ordinances, rules and regu-

lations in accordance with the provisions of this compact.

Articie Il. - Derinmons

As used in this compact:

(a) “Region,” includes Lake Tahoe, the adjacent

parts of Douglas and Washoe Counties and Carson City

which for the purposes of this compact shall be deemed :

county, lying within the Tahoe Basin in the State of Nev-

ada, and the adjacent parts of the counties of Placer and

El Dorado lying within the Tahoe Basin in the State of

California, and that additional and adjacent part of the

county of Placer outside of the Tahoe Basin in the State of

California which lies southward and eastward of a line

starting at the intersection of the basin crestline and the

north boundary of section 1, thence west to the northwest

corner of section 3, thence south to the intersection of the

basin crestline and the west boundary of section 10; all

sections referring to township 15 north, range 16 east,

M.D.B. & M. The region defined and described herein

shall be as precisely delineated on official maps of the

agency.

(b) “Agency” means the Tahoe Regional Planning

Agency.

of the Tahoe Regional Planning Agency.

(d) “Regional plan” means the long-term general

plan for the development of the region.

(e) “Planning commission” means the advisory

planning commission appointed pursuant to subdivision

(h) of article III.

(f) “Gaming” means to deal, operate, carry on, con-

duct, maintain or expose for play any banking or percent-

age game played with cards, dice or any mechanical

device or machine for money, property, checks, credit or

any representative of value, including, without limiting

the generality of the foregoing, faro, monte, roulette,

keno, bingo, fantan, twenty-one, blackjack, seven-and-

a-half, big injun, klondike, craps, stud poker, draw poker

or slot machine, but does not include social games played

solely for drinks, or cigars or cigarettes served individu-

ally, games played in private homes or residences for

prizes or games operated by charitable or educational

organizations, to the extent excluded by applicable State

law.

(g) “Restricted gaming license” means a license to

operate not more than 15 slot machines on which a quar-

terly fee is charged pursuant to NRS 463.373 and no other

games.

(h) “Project” means an activity undertaken by any

person, including any public agency, if the activity may

substantially affect the land, water, air, space or any other

natural resources of the region.

(i) “Environmental threshold carrying capacity”

means an environmental standard necessary to maintain

a significant scenic, recreational, educational, scientific or

natural value of the region or to maintain public health

and safety within the region. Such standards shall include

but not be limited to standards for air quality, water

quality, soil conservation, vegetation preservation and

noise.

(j) “Feasible” means capable of being accomplished

in a successful manner within a reasonable period of

time, taking into account economic, environmental, social

and technological factors.

(k) “Areas open to public use” means all of the

areas within a structure housing gaming under a non-

restricted license except areas devoted to the private use

of guests.

(1) “Areas devoted to private use of guests” means

hotel rooms and hallways to serve hotel room areas, and

any parking areas. A hallway serves hotel room areas if

more than 50 percent of the areas on each side of the

hallway are hotel rooms.

88 89

“ icted license” means a gaming license county commissioners or board of supervisors,

29 ee ae respectively, and shall reside in the territorial

which is not a restricted gaming license. jurisdiction of the governmental body making

the appointment.

Articte III. - ORGANIZATION (B) One member appointed by the Gover-

d the Tahoe Regional Planning nor of Nevada, the secretary of State of Nevada

(a) There is created the or his designee, and the director of the State

Agency as a separate legal entity. department of conservation and natural

ing body of the agency shall be constitu- resources of Nevada or his designee. Except for

The governing body 8 the secretary of State and the director of the State

ted as follows: department of conservation and natural

(1) California delegation:

(A) One member appointed by each of the

county boards of supervisors of the counties of

El Dorado and Placer and one member appointed

by the city council of the city of South Lake

Tahoe. Any such member may be a member of

the county board of supervisors or city council,

respectively, and shall reside in the territorial

jurisdiction of the governmental body making

the appointment.

(B) Two members appointed by the Gover-

nor of California, one member appointed by the

speaker of the assembly of California and one

member appointed by the senate rules committee

of the State of California. The members appoin-

ted pursuant to this subparagraph shall not be

residents of the region and shall represent the

public at large within the State of California.

(2) Nevada delegation:

(A) One member appointed by each of the

boards of county commissioners of Douglas and

Washoe Counties and one member appointed by

the board of supervisors of Carson City. Any

such member may be a member of the board of

resources, the members or designees appointed

pursuant to this subparagraph shall not be resi-

dents of the region. All members appointed pur-

suant to this subparagraph shall represent the

public at large within the State of Nevada.

term by the six other members of the Nevada

delegation. If at least four members of the Nev-

ada delegation are unable to agree upon the

selection of a seventh member within 60 days

after the effective date of the amendments to this

compact or the occurrence of a vacancy on the

governing body for that State the Governor of

the State of Nevada shall make such an appoint-

ment. The member appointed pursuant to this

subparagraph may, but is not required to, be a

resident of the region within the State of Nevada.

(3) If any appointing authority under para-

graph (1)(A), (1)(B), (2)(A), or (2)(B) fails to make

such an appointment within 60 days after the effec-

tive date of the amendments to this compact or the

occurrence of a vacancy on the governing body, the

Governor of the State in which the appointing

authority is located shall make the appointment. The

term of any member so appointed shall be 1 year.

(4) The position of any member of the govern-

ing body shall be deemed vacant if such a member is

absent from three consecutive meetings of the gov-

erning body in any calendar year.

(5) Each member and employee of the agency

shall disclose his economic interests in the region

within 10 days after taking his seat on the ee

board or being employed by the agency and sha

thereafter disclose any further economic interest

which he acquires, as soon as feasible after he

acquires it. As used in this paragraph, “economic

interests” means:

(A) Any business entity operating in the

region in which the member or employee has a

direct or indirect investment worth more than

$1,000.

(B) Any real property located in the region

in which the member or employee has a direct or

indirect interest worth more than $1,000.

activities in the region, other than loans by or

deposits with a commercial lending institution o

the regular course of business, aggregating $25

or more in value received by or promised to the

member within the preceding 12 months; or

(D) Any business entity operating in the

region in which the member or employee is a

director, officer, partner, trustee, employee or

holds any position of management.

No member or employee of the agency shall

make, or attempt to influence, an agency deci-

sion in which he knows or has reason to know he

has an economic interest. Members and

employees of the agency must disqualify them-

selves from making or participating in the

making of the agency when it is reasonably fore-

seeable that the decision will have a material

financial effect, distinguishable from its effect on

the public generally, on the economic interests of

the member or employee.

(b) The members of the agency shall serve without

compensation, but the expenses of each member shall be

met by the body which he represents in accordance with

the law of that body. All other expenses incurred by the

governing body in the course of exercising the powers

conferred upon it by this compact unless met in some

other manner specifically provided, shall be paid by the

agency out of its own funds.

the State department of conservation and natural

resources of Nevada and the member appointed pursuant

to subdivision (a)(2)(C), the members of the governing

body serve at the pleasure of the appointing authority in

each case, but each appointment shall be reviewed no less

often than every 4 years. Members may be reappointed.

(d) The governing body of the agency shall meet at

least monthly. All meetings shall be open to the public to

the extent required by the law of the State of California or

the State of Nevada, whichever imposes the greater

requirement, applicable to local governments at the time

such meeting is held. The governing body shall fix a date

for its regular monthly meeting in such terms as “the first

Monday of each month,” and shall not change such date

more often than once in any calendar year. Notice of the

date so fixed shall be given by publication at least once in

a newspaper or combination of newspapers whose circu-

lation is general throughout the region and in each

county a portion of whose territory lies within the region.

Notice of any special meeting, except an emergency meet-

ing, shall be given by so publishing the date and place

and posting an agenda at least 5 days prior to the meet-

ing.

(e) The position of a member of the governing body

shall be considered vacated upon his loss of any of the

qualifications required for his appointment and in such

event the appointing authority shall appoint a successor.

(f) The governing body shall elect from its own

members a chairman and vice chairman, whose terms of

office shall be 2 years, and who may be reelected. If a

vacancy occurs in either office, the governing body may

fill such vacancy for the unexpired term.

(g) Four of the members of the governing body

from each State constitute a quorum for the transaction of

the business of the agency. The voting procedure shall be

as follows:

(1) For adopting, amending or repealing ene

ronmental threshold carrying capacities, the regiona

plan, and ordinance, rules, and regulations, and for

granting variances from the ordinances, rules and

regulations, the vote of at least four of the members

of each State agreeing with the vote of at least four

members of the other State shall be required to take

action. If there is no vote of at least four of the

members from one State agreeing with the vote of at

least four of the members of the other State on the

actions specified in this paragraph, an action of rejec-

tion shall be deemed to have been taken.

i j he affirmative vote

(2) For approving a project, t

of at least five members from the State in which the

project is located and the affirmative vote of at least

nine members of the governing body are required. If

at least five members of the governing body from the

State in which the project is located and at least nine

members of the entire governing body do not vote in

favor of the project, upon a motion for approval, an

action of rejection shall be deemed to have been

taken. A decision by the agency to approve a project

shall be supported by a statement of findings,

adopted by the agency, which indicates that the pro-

ject complies with the regional plan and with appli-

cable ordinances, rules and regulations of the agency.

(3) For routine business and for directing the

agency's staff on litigation and enforcement actions,

at least eight members of the governing body must

agree to take action. If at least eight votes in favor of

such action are not cast, an action of rejection shall be

deemed to have been taken. Whenever under the

provisions of this compact or any ordinance, rule,

regulation or policy adopted pursuant thereto, the

agency is required to review or approve any project,

public or private, the agency shall take final action by

vote, whether to approve, to require modification or

to reject such project, within 180 days after the appli-

cation for such project is accepted as complete by the

agency in compliance with the agency’s rules and

regulations governing such delivery unless the appli-

cant has agreed to an extension of this time limit. If a

final action by vote does not take place within 180

days, the applicant may bring an action in a court of

competent jurisdiction to compel a vote unless he has

agreed to an extension. This provision does not limit

the right of any person to obtain judicial review of

agency action under subdivision (h) of article VI. The

vote of each member of the governing body shall be

individually recorded. The governing body shall

adopt its own rules, regulations and procedures.

(h) An advisory planning commission shall be

appointed by the agency. The commission shall include:

The chief planning officers of Placer County, El Dorado

County, and the city of South Lake Tahoe in California

and of Douglas County, Washoe County and Carson City

in Nevada, the executive officer of the Lahontan Regional

Water Quality Control Board of the State of California,

the executive officer of the Air Resources Board of the

State of California, the director of the State department of

conservation and natural resources of the State of Nev-

ada, the administrator of the division of environmental

protection in the State department of conservation and

natural resources of the State of Nevada, the administra-

tor of the Lake Tahoe Management Unit of the United

States Forest Service, and at least four lay members with

an equal number from each State, at least half of whom

shall be residents of the region. Any official member may

designate an alternate.

The term of office of each lay member of the advisory

planning commission shall be 2 years. Members may be

reappointed.

The position of each member of the advisory plan-

ning commission shall be considered vacated upon loss of

any of the qualifications required for appointments, and

in such event the appointing authority shall appoint a

successor.

The advisory planning commission shall elect from

its own members a chairman and a vice chairman, whose

terms of office shall be 2 years and who may be reelected.

If a vacancy occurs in either office, the advisory planning

commission shall fill such vacancy for the unexpired

term.

A majority of the members of the advisory planning

commission constitutes a quorum for the transaction of

the business of the commission. A majority vote of the

quorum present shall be required to take action with

respect to any matter.

(i) The agency shall establish and maintain an office

within the region, and for this purpose the agency may

rent Or own property and equipment. Every plan, ordi-

nance and other record of the agency which is of such

nature as to constitute a public record under the law of

either the State of California or the State of Nevada shall

be open to inspection and copying during regular office

hours.

(j) Each authority charged under this compact or by

the law of either State with the duty of appointing a

member of the governing body of the agency shall by

certified copy of its resolution or other action notify the

Secretary of State of its own State of the action taken.

ArTIcLe IV. - Personnet

| (a) The governing body shall determine the quali-

fication of, and it shall appoint and fix the salary of, the

executive officer of the agency, and shall employ such

other staff and legal counsel as may be necessary to

execute the powers and functions provided for under this

compact or in accordance with any intergovernmental

contracts or agreements the agency may be responsible

for administering

(b) Agency personnel standards and regulations

shall conform insofar as possible to the regulations and

procedures of the civil service of the State of Califormia or

the State of Nevada, as may be determined by the gov-

erning body of the agency; and shall be regional and

bistate in application and effect; provided that the ”

erning body may, for administrative convenience an at

its discretion, assign the administration of designated

personnel arrangements to an agency of either State, and

provided that administratively convenient adjustments

be made in the standards and regulations governing Pet

sonnel assigned under intergovernmental agreements.

ticipate in such additional programs of employee benefits

as may be appropriate to afford employees of the agency

terms and conditions of employment similar to those

enjoyed by employees of California and Nevada gener-

ally.

ArticLte V. — PLANNING

(1) In preparing each of the plans requized by this

article and each amendment thereto, if any, subsequent to

its adoption, the planning commission after due a

shall hold at least one public hearing which may b

continued from time to time, and shall review the testi-

mony and any written recommendations presented r

such hearing before recommending the plan or amend-

ment. The notice required by this subdivision shall be

given at least 20 davs prior to the public hearing by

publication at least once in a newspaper or oneness

of newspapers whose circulation is general ugho

the region and in each county a portion of whose terri-

tory lies within the region.

The planning commission shall then recommend

such plan or amendment to the governing body for adop-

tion by ordinance. The governing body may adopt, mod-

ify or reject the proposed plan or amendment, or may

initiate and adopt a plan or amendment without referring

it to the planning commission. If the governing body

initiates or substantially modifies a plan or amendment, it

shall hold at least one public hearing thereon after due

notice as required in this subdivision.

If a request is made for the amendment of the

regional plan by:

(1) A political subdivision a part of whose terri-

tory would be affected by such amendment; or

(2) The owner or lessee of real property which

would be affected by such amendment,

the governing body shall complete its action on such

amendment within 180 days after such request is

accepted as complete according to standards which must

be prescribed by ordinance of the agency.

(b) The agency shall develop, in cooperation with

the States of California and Nevada, environmental

threshold carrying capacities for the region. The agency

should request the President’s Council on Environmental

Quality, the U.S. Forest Service and other appropriate

agencies to assist in developing such environmental

threshold carrying capacities. Within 18 months after the

effective date of the amendments to this compact, the

agency shall adopt environmental threshold carrying

capacities for the region.

mental threshold carrying capacities for the region, the

agency shall amend the regional plan so that, at a mini-

mum, the plan and all of its elements, as implemented

through agency ordinances, rules and regulations,

achieves and maintains the adopted environmental

threshold carrying capacities. Each element of the plan

shall contain implementation provisions and time sched-

ules for such implementation by ordinance. The planning

commission and governing body shall continuously

review and maintain the regional plan. The regional plan

shall consist of a diagram, or diagrams, and text, or texts

setting forth the projects and proposals for implementa-

tion of the regional plan, a description of the needs and

goals of the region and a statement of the policies, stan-

dards and elements of the regional plan.

The regional plan shall be a single enforceable plan

and includes all of the following correlated elements:

(1) A land-use plan for the integrated arrange-

ment and general location and extent of, and the

criteria and standards for, the uses of land, water, air,

space and other natural resources within the region,

including but not limited to an indication or alloca-

tion of maximum population densities and permitted

uses.

(2) A transportation plan for the integrated

development of a regional system of transportation,

including but not limited to parkways, highways,

transportation facilities, transit routes, waterways,

navigation facilities, public transportation facilities,

bicycle facilities, and a i

ycl , ppurtenant terminal

facilities for the movement of people and ha

within the region. The 1 of i

og taben goal of transportation plan-

(A) To reduce dependenc

( ( y on the auto-

mobile by making more effective use of existing

transportation modes and of public transit to

move people and goods within the region; and

(B) To reduce to the extent feasible air

. . . ol-

lution which is caused by motor vehicles. 4

Where increases in capacity are required, the agency shall

give preference to providing such capacity through pub-

lic transportation and public programs and projects

related to transportation. The agency shall review and

consider all existing transportation plans in preparing its

regional transportation plan pursuant to this paragraph.

The plan shall provide for an appropri j

opriate tr

system for the region. en =

The plan shall give consideration to:

(A) Completion of the Loop Road i

States of Nevada and California; —

(B) Utilization of a light rail mass transi

system in the South Shore area; and -

Kingsbury Grade area. —

Until the regional plan is revised, or a new trans-

portation plan is adopted in accordance with this

paragraph, the a ha i -

sgn od gency has no effective transpor

(3) A conservation plan for the preservati

*¥: ats 4

development, utilization, and tell sae of the

et we eee

100

scenic and other natural resources within the basin,

including but not limited to, soils, shoreline and sub-

merged lands, scenic corridors along transportation

routes, open spaces, recreational and historical facili-

ties.

(4) A recreational plan for the development,

utilization, and management of the recreational

resources of the region, including but not limited to,

wilderness and forested lands, parks and parkways,

riding and hiking trails, beaches and playgrounds,

marinas, areas for skiing and other recreational facili-

ties.

(5) A public services and facilities plan for the

general location, scale and provision of public ser-

vices and facilities, which, by the nature of their

function, size, extent and other characteristics are

necessary or appropriate for inclusion in the regional

plan.

In formulating and maintaining the regional

plan, the planning commission and governing body

shall take account of and shall seek to harmonize the

needs of the region as a whole, the plans of the

counties and cities within the region, the plans and

planning activities of the State, Federal and other

public agencies and nongovernmental agencies and

organizations which affect or are concerned with

planning and development within the region.

(d) The regional plan shall provide for attaining and

maintaining Federal State, or local air and water quality

standards, whichever are strictest, in the respective por-

tions of the region for which the standards are applicable.

The agency may, however, adopt air or water quality

standards or control measures more stringent than the

applicable State implementation plan or the applicable

101

Federal State, or local standards for the region, if it finds

that such additional standards or control measures are

necessary to achieve the purposes of this compact. Each

element of the regional plan, where applicable, shall, by

ordinance, identify the means and time schedule by

which air and water quality standards will be attained.

(e) Except for the Regional Transportation Plan of

the California Tahoe Regional Planning Agency, the

regional plan, ordinances, rules and regulations adopted

by the California Tahoe Regional Planning Agency in

effect on July 1, 1980, shall be the regional plan, ordi-

nances, rules and regulations of the Tahoe Regional Plan-

ning Agency for that portion of the Tahoe region located

in the State of California. Such plan, ordinance, rule or

regulation may be amended or repealed by the governing

body of the agency. The plans, ordinances, rules and

regulations of the Tahoe Regional Planning Agency that

do not conflict with, or are not addressed by, the Califor-

nia Tahoe Regional Planning Agency’s plans, ordinances,

rules and regulations referred to in this subdivision shall

continue to be applicable unless amended or repealed by

the governing body of the agency. No provision of the

regional plan, ordinances, rules and regulations of the

California Tahoe Regional Planning Agency referred to in

this subdivision shall apply to that portion of the region

within the State of Nevada, unless such provision is

adopted for the Nevada portion of the region by the

governing body of the agency.

| (t) The regional plan, ordinances, rules and regula-

tions of the Tahoe Regional Planning Agency apply to

that portion of the region within the State of Nevada.

PI th tp ng

102

(g) The agency shall adopt ordinances prescribing

specific written findings that the agency must make prior

to approving any project in the region. These findings

shall relate to environmental protection and shall insure

that the project under review will not adversely affect

implementation of the regional plan and will not cause

the adopted environmental threshold carrying capacities

of the region to be exceeded.

(h) The agency shall maintain the data, maps and

other information developed in the course of formulating

and administering the regional plan, in a form suitable to

assure a consistent view of developmental trends and

other relevant information for the availability of a use by

other agencies of government and by private organiza-

tions and individuals concerned.

(i) Where necessary for the realization of the

regional plan, the agency may engage in oo este

planning with local governmental jurisdictions locat

outside the region, but contiguous to its boundaries. In

formulating and implementing the regional plan, the

agency shall seek the cooperation and consider the rec-

ommendations of counties and cities and other agencies

of local government, of State and Federal agencies, of

educational institutions and research organizations,

whether public or private, and of civic groups and pri-

vate persons.

103

Articte VI. - Acency’s Powers

(a) The governing body shall adopt all necessary

ordinances, rules, and regulations to effectuate the

adopted regional plan. Except as otherwise provided in

this compact, every such ordinance, rule or regulation

shall establish a minimum standard applicable through-

out the region. Any political subdivision or public agency

may adopt and enforce an equal or higher requirement

applicable to the same subject of regulation in its terri-

tory. The regulations of the agency shall contain stan-

dards including but not limited to the following: Water

purity and clarity; subdivision; zoning; tree removal;

solid waste disposal; sewage disposal; land fills, excava-

tions, cuts and grading; piers, harbors, breakwaters or

channels and other shoreline developments; waste dis-

posal in shoreline areas; waste disposal from boats;

mobile-home parks; house relocation; outdoor advertis-

ing; flood plain protection; soil and sedimentation con-

trol; air pollution; and watershed protection. Whenever

possible without diminishing the effectiveness of the

regional plan, the ordinances, rules, regulations and poli-

cies shall be confined to matters which are general and

regional in application, leaving to the jurisdiction of the

respective States, counties and cities the enactment of

specific and local ordinances, rules, regulations and poli-

cies which conform to the regional plan.

The agency shall prescribe by ordinance those activ-

ities which it has determined will not have substantial

effect on the land, water, air, space or any other natural

resources in the region and therefore will be exempt from

its review and approval.

104

Every ordinance adopted by the agency shall be pub-

lished at least once by title in a newspaper or combina-

tion of newspapers whose circulation is general

throughout the region. Except an ordinance adopting or

amending the regional plan, no ordinance shall become

effective until 60 days after its adoption. Immediately

after its adoption, a copy of each ordinance shall be

transmitted to the governing body of each political subdi-

vision having territory within the region.

(b) No project other than those to be reviewed and

approved under the special provisions of subdivisions

(d), (e), (f) and (g) may be developed in the region with-

out obtaining the review and approval of the agency and

no project may be approved unless it is found to comply

with the regional plan and with the ordinances, rules and

regulations enacted pursuant to subdivision (a) to effec-

tuate that plan. The agency may approve a project in the

region only after making the written findings required by

this subdivision or subdivision (g) of article V. Such find-

ings shall be based on substantial evidence in the record.

Before adoption by the agency of the ordinances

required in subdivision (g) of article V, the agency may

approve a project in the region only after making written

findings on the basis of substantial evidence in the record

that the project is consistent with the regional plan then

in effect and with applicable plans, ordinances, regula-

tions, and standards of Federal and State agencies relat-

ing to the protection, maintenance and enhancement of

environmental quality in the region.

Nevada find that in order to make effective the regional

105

plan as revised by the agency, it is necessary to halt

temporarily works of development in the region which

might otherwise absorb the entire capability of the region

for further deveiopment or direct it out of harmony with

the ultimate plan. Subject to the limitation provided in

this subdivision, from the effective date of the amend-

ments to this compact until the regional-plar- is-amended

pursuant to subdivision (c) of article V, or until May 1,

1983, whichever is earlier:

(1) Except as otherwise provided in this para-

graph, no new subdivision, planned unit develop-_

ment, or condominium project may be approved

unless a complete tentative map or plan has been

approved before the effective date of the amend-

ments to this compact by all agencies having jurisdic-

tion. The subdivision of land owned by a general

improvement district, which existed and owned the

land before the effective date of the amendments to

this compact, may be approved if subdivision of the

- land is necessary to avoid insolvency of the district.

(2) Except as provided in paragraph (3), no

apartment building may be erected unless the

required permits for such building have been secured

from all agencies having jurisdiction, prior to the

effective date of the amendments to this compact.

(3) During each of the calendar years 1980, 1981

and 1982, no city or county may issue building per-

mits which authorize the construction of a greater

number of new residential units within the region

than were authorized within the region by building

permits issued by that city or county during the

calendar year 1978. For the period of January through

April, 1983, building permits authorizing the con-

struction of no more than one-third of that number

106

may be issued by each such city or county. For pur-

poses of this paragraph a “residential unit” means

either a single family residence or an individual resi-

dential unit within a larger building, such as an

apartment building, a duplex or a condominium.

The legislatures find the respective numbers of resi-

dentia

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.