# Joint Appendix — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0446%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2002 - **Citation:** 535 U.S. 302 ## Text —————————_—_aaaaaa4QaaeSYSYS seller e 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 ii 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 12/9/92 11/15/94 7/7/95 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 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; ee ee ee ee ee ee ee ee ee, ee, ee ee ee ee ee 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 Ne me eee ee ee ee ee eee ee ee” 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 me eee ee ee ee ee” me ee eee eee ee ee Nm eee eee ee ee 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. mee ee eee eee ee” 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 ) ee eee ee eee eee _ an) 11 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; me ee eee ee ee” 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, V. The TAHOE REGIONAL PLANNING AGENCY, a ‘ Nee eee eee eee eae 12 13 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. ee 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. 14 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 15 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) 16 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) 17 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 18 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 19 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. (C) Actions arising out of any other act or 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. 20 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. 21 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 22 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 23 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”. 24 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. 25 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. 26 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 27 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. 28 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 29 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 30 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 31 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, 32 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 33 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 34 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 35 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 36 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. 37 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 38 (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 39 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. 40 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 41 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 42 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. 43 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: 44 “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. 45 * * * 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 46 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 47 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 48 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 49 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 50 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 51 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 52 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, 53 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. 54 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 55 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 56 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, 57 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 58 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 59 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 60 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 61 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 62 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. 63 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 64 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 65 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, 66 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 67 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 68 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 69 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 70 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, 71 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, 72 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), 73 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. 74 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 | V. 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” FACTS - GENERAL: © 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. 75 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. 76 $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 77 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. 78 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.) 79 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, Vv 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 80 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 thi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0446%3A07. Public record. Not legal advice.