Amicus Curiae Brief — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

Supreme Court, U.S.

September \Q Qoo/ FILED

(4) S12 2001

No. 00-1167

In the

Supreme Court of the United States

+

TAHOE SIERRA PRESERVATION COUNCIL, INC.,

a California nonprofit corporation and

membership organization, et al.,

Petitioners,

v.

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

4-

BRIEF AMICI CURIAE OF PACIFIC LEGAL

FOUNDATION AND CALIFORNIA ASSOCIATION

OF REALTORS® IN SUPPORT OF PETITIONERS

TAHOE-SIERRA PRESERVATION COUNCIL, ET AL.

+

JUNE BABIRACK! BARLOW, ESQ. *R. S. RADFORD

Vice President and General Counsel Pacific Legal Foundation

SONIA M. YOUNGLOVE, ESQ. 10360 Old Placerville Road,

Semor Counsel Suite 100

California Association Sacramento, California 95827

of REALTORS® Telephone: (916) 362-2833

525 South Virgil Avenue Facsimile: (916) 362-2932

Los Angeles, California 90020-1403

. Telephone: (213) 739-8200 *Counsel of Record

Facsimile: (213) 480-7724

Counsel for Amici Curiae

Pacific Legal Foundation and California Association of REALTORS®

os OX

i

QUESTION PRESENTED

Whether the Court of Appeals properly determined that a

temporary moratorium on land development does not constitute

a taking of property requiring compensation under the Takings

Clause of the United States Constitution?

li

TABLE OF CONTENTS

Page

eb spe bo, | errr i

TABLE GH ALTTRIUSED co ccccccccccecsceuceeene eee iii

ENT Eee. OF AMICI CURRIAR occ cccccccccccsessvctene ]

STATEOGRINS GF Tis CAGE oop cccsesesesvecpsunneunn 3

SUMMARY OF ARGUMENT .....ccccccccccccsecececss 5

ABET oo oc cccscccuusccesédeseuns anne 7

I. THE MORATORIUM AT ISSUE IN THIS

CASE IS ONLY ONE SMALL ELEMENT IN

TRPA’S LONG HISTORY OF ABUSING THE

RIGHTS OF TAHOE PROPERTY OWNERS

WHILE EVADING THE CONSTITUTIONAL

MANDATE OF JUST COMPENSATION ........... 7

A. The “Temporary” 32-Month Development

Freeze Under Ordinance 81-5 and Resolution

83-21 Was Part of an Ongoing Restrictive

Scheme That Deprives Petitioners of All

Beneficial Use of Their Property to This Day ...... 8

B. The Opinion of the Ninth Circuit Below

Is Merely the Latest in a Line of Decisions

in Which That Court Has Deferred to

TRPA’s Regulatory Mission, Effectively

Insulating the Agency from Constitutional

Constraints Under the Fifth Amendment......... 1]

fl. “CONCEPTUAL SEVERANCE” IS AN EMPTY

CONSTRUCT THAT CONTRIBUTES NOTHING

TO A MEANINGFUL JURISPRUDENCE

OF REGULATORY TAKINGS ...............0065 14

eee 8 Pe eee 20

TABLE OF AUTHORITIES

Page

Cases

American Frozen Food Institute v. Train,

EEL EEUU coccccceccceccccces 17

Armstrong v. United States, 364 U.S. 40 (1960) ........... 18

City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999) ............. 3

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 20

First English Evangelical Lutheran

Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987)............ 3, 5-6,10

Florida Rock Indus., Inc. v. United States,

Se SPE, GS BOE ccc ccccccccccscccces 19

Hodel v. Irving, 481 U.S. 704 (1987) ...........0045. 18

Jacobson v. Tahoe Regional Planning Agency,

661 F.2d 940 (9th Cir. 1981)..............-.000-- 12

Jacobson v. Tahoe Regional Planning Agency,

I 1]

Jacobson v. Tahoe Regional Planning Agency,

474 F. Supp. 901 (D. Nev. 1979) ..............0.. 12

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ..... 18

Lake Country Estates v. Tahoe Regional

Planning Agency, 440 U.S. 391 (1979) ............. 11

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982) .........0.0 00s. 18

Louisville Joint Stock Land Bank v.

Er 18

iv

TABLE OF AUTHORITIES—Continued

Page

Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992) ............... 5-6, 10

Lynch v. United States, 292 U.S. 571 (1934) ........... 18

Nollan v. California Coastal Commission,

GP DE PEED ec ccticcoepecesceusesceeses 1,3

Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001) ....... |

Pennell v. San Jose, 485 U.S. 1 (1988) ..............5. 3

Suitum v. Tahoe Regional Planning

ET, TE as CEE ho vee er cccccctctseses 1, 13

Suitum v. Tahoe Regional Planning Agency, 80 F.3d

359 (9th Cir.), cert. granted, 519 U.S. 926

(1996), vacated, 123 F.3d 1322 (1997) .............. 13

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency,

216 F.3d 764 (9th Cir. 2000) ............... 5-6, 14-17

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency,

ee SS SE obo eecnsccoccccucees 13

Tahoe-Sierra Preservation Council v.

Tahoe Regional Planning Agency,

POS Se ee SS ecdseiccceccéacecese 12

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

34 F. Supp. 2d 1226, 1243-45 (D. Nev. 1999)........... 4

United States v. Virginia Electric

and Power Co., 365 U.S. 624(1961) .............. 18

Vv

TABLE OF AUTHORITIES—Continued

Rules of Court

GPT Secksocesesececesévcaces

Miscellaneous

Coletta, Raymond R., The Measuring Stick

of Regulatory Takings: A Biological and

Cultural Analysis, | U. Pa. J. Const. L. 20 (1998) ....

Eagle, Steven J., Regulatory Takings (1996) ............

Eagle, Steven J., Temporary Regulatory

Takings and Development Moratoria:

The Murky View from Lake Tahoe,

31 Env’tl L. Rep. 10224(2001) ...................

Kassouni, Timothy V., The Ripeness

Doctrine and the Judicial Relegation

of Constitutionally Protected Property

Rights, 29 Cal. W. L. Rev. 1 (1992) ............ 12-

Michelman, Frank I., Property, Utility, and

Fairness: Comments on the Ethical

Foundations of “Just Compensation”

Law, 80 Harv. L. Rev. 1165 (1967) ...............

Peterson, Craig A., Recent Development in

“Takings” Jurisprudence: Land Use Regulatory

“Takings” Revisited: The New Supreme Court

Approaches, 39 Hastings L.J. 335 (1988) ...........

vi

TABLE OF AUTHORITIES—Continued

Radin, Margaret Jane, The Liberal

Conception of Property: Cross

Currents in the Jurisprudence of

Takings, 88 Colum. L. Rev. 1667 (1988) ...........

Radford, R. S., Regulatory Takings Law in

the 1990's: The Death of Rent Control?,

a, See, Bc EE, HEED 0 cc hc cececoaccecs.

l

INTEREST OF AMICI CURIAE'

Since 1973, amicus Pacific Legal Foundation (PLF) has

litigated in support of the constitutional rights of individuals to

make reasonable use of their private property. PLF has

participated as amicus curiae in nearly every Fifth Amendment

takings case heard by this Court over that time, and PLF

attorneys were counsel of record in three of them: Palazzolo v.

Rhode Island, 121 S. Ct. 2448 (2001), Suitum v. Tahoe

Regional Planning Agency, 520 U.S. 725 (1997), and Nollan v.

California Coastal Commission, 483 U.S. 825 (1987).

PLF believes that its public policy perspective and

litigation experience will provide an additional viewpoint that

will assist the Court in its deliberations on the issues presented

by this case. In the course of representing Mrs. Bernadine

Suitum before this Court, and in supporting the present

petitioners as amicus curiae in the courts below, PLF attorneys

have gained unique insights into the plight of Tahoe-area

residents who are subjected to the harsh and inflexible

restrictions imposed by the Tahoe Regional Planning Agency

(TRPA, respondent herein). Like Mrs. Suitum, many of the

present petitioners have grown old while vainly striving to

achieve their dream of building modest retirement homes on

subdivided lots in fully or partially developed residential

neighborhoods.” Tahoe residents have repeatedly pursued

' Pursuant to this Court’s Rule 37.2(a), all parties have consented to

the filing of this brief. Letters evidencing such consent have been

filed with the Clerk of the Court.

Pursuant to Rule 37.6, amici curiae affirm that no counsel for any

party authored this brief in whole or in part and that no person or

entity made a monetary contribution specifically for the preparation

or submission of this brief.

? Sadly but tellingly, some 55 of the original plaintiffs in this

proceeding have died while waiting for TRPA to relax the

(continued...)

2

regulatory takings claims against TRPA to the United States

Court of Appeals for the Ninth Circuit, only to have that court

defer to TRPA’s regulatory mission by invoking unique and

creative jurisprudential theories to bypass the requirements of

the Takings Clause. The present case is merely the latest

example of this pattern, just as the “temporary moratorium” at

issue here is merely one element in an interlocking web of land

use prohibitions stretching back to TRPA’s earliest days.

California Association of REALTORS® (CAR) is a

nonprofit, voluntary, trade association incorporated in

California whose members consist of local Boards and

Associations of REALTORS®, and approximately 94,000

persons licensed as real estate brokers and salespersons by the

state of California, as well as affiliate members such as real

estate appraisers, title insurers, mortgage lenders, and real estate

attorneys. Furthermore, CAR is actively engaged in promoting

and establishing reasonable standards to govern the transfer of

real estate and the protection of private property rights. CAR

pursues its objectives through a variety of methods, including

education of its members, creation of standard form agreements

for use in real estate transactions, lobbying, providing legal

advice to its members, and participation as amicus curiae in

relevant court cases. Members of CAR assist the public in

buying, selling, leasing, developing and managing residential,

commercial and industrial real estate as well as mobile homes.

Unfortunately, due to the oftentimes misguided, or in

some cases even hostile, actions that local governmental entities

and courts have taken with regard to landowners’ constitutional

rights, CAR has been actively involved in land use and takings

cases. CAR has participated previously as amicus curiae before

? (...continued)

“temporary” restrictions that have deprived them of the beneficial

use of their property for decades. See Petition for Writ of Certiorari

at 3 n.4.

3

numerous courts including the seminal cases of Nollan v.

California Coastal Commission, 483 U.S. 825 (1987), and First

English Evangelical Lutheran Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987); and more recently in Pennell

v. San Jose, 485 U.S. 1 (1988), and City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).

The ruling by the Ninth Circuit Court of Appeals in this

case makes it imperative that CAR once again participate as

amicus curiae. The Ninth Circuit’s flawed analysis and

decision represents a fundamental misunderstanding and

misapplication of this Court’s well-established precedents.

STATEMENT OF THE CASE

In 1969, the Tahoe Regional Planning Agency was created

by a bi-state compact to control development in the Lake Tahoe

region of California and Nevada. Eleven years later, Congress

amended the compact to strengthen TRPA’s authority. Almost

immediately, TRPA asserted its new powers by adopting

Ordinance 81-5, the first in a series of moratoria prohibiting any

beneficial use of much of the private property subject to the

agency’s jurisdiction. In one form or another, TRPA’s

“temporary” building prohibition has lasted for 20 years.

Ordinance 81-5 was quickly augmented by TRPA’s

Resolution 83-21, which suspended all permitting activities by

the agency. Ostensibly to expire after 90 days, Resolution 83-

21 was extended until a new regional plan was developed in

April of 1984, 32 months after the adoption of the initial

moratorium. For many of the region’s residential property

owners, including the petitioners in the present action, TRPA’s

formal lifting of the moratorium was of no practical

consequence, since development of their properties was flatly

forbidden by the 1984 plan. Although both the trial court below

and the Ninth Circuit made much of the fact that the 1984 plan

itself was promptly suspended by a court injunction, this made

no difference to owners who had been deprived of all beneficial

4

use of their residential lots continuously since 1981, and were

still forbidden to build on their land under the terms of the 1984

and subsequent regional plans.

The petitioners in this case are residential property owners

in the Tahoe region who have been deprived of all economically

viable use of their land by TRPA’s development moratoria. In

1984, these owners filed an action asserting that TRPA’s

restrictions on the use of their lots amounted to a regulatory

taking of their property for public use without just

compensation. Over the next 15 years, this litigation resulted

in 11 published opinions by the Federal District Courts of

California and Nevada, the Ninth Circuit Court of Appeals, and

this Court. Finally, in 1999, the surviving landowners

accomplished their goal of obtaining an 11-day bench trial

before the United States District Court for the District of

Nevada. In that proceeding, the trial court determined, as a

factual matter, that Ordinance 81-5 and Resolution 83-21 had

deprived the petitioners of all economically viable use of their

property, thereby triggering the constitutional requirement of

just compensation. See Tahoe-Sierra Preservation Council,

Inc. v. Tahoe Regional Planning Agency, 34 F. Supp. 2d 1226,

1243-45 (D. Nev. 1999).

The Ninth Circuit Court of Appeals reversed. Although

it did not disturb the factual finding that TRPA’s moratoria had

deprived petitioners of all economically viable use of their

property, the appellate panel held that no compensation was

required under the Takings Clause. See Tahoe-Sierra

Preservation Council v. Tahoe Regional Planning Agency,

216 F.3d 764, 777 (9th Cir. 2000). Judge Reinhardt, writing for

the unanimous panel, opined that the relevant property interests

for purposes of Fifth Amendment takings analysis are “the

whole parcels of property that [petitioners] own,” id. at 779,

and that these parcels should be defined to include the actual or

potential use of the property “from the present to the future.”

Id. at 782. Under this reasoning, TRPA’s denial of all use of

5

the petitioners’ land affected only “finite temporal segments.”

Id. at 778. The agency’s absolute prohibition of the use of these

homesites for their intended purpose—a prohibition that has

continued in effect for two decades—was seen as affecting only

“a small fraction of the useful life of the Tahoe properties.” /d.

at 782. Compensation was not required under the Takings

Clause because, as the Ninth Circuit reasoned, TRPA’s

development ban had not confiscated the entire “temporal

dimension” of the petitioners’ ownership interests. /d.

SUMMARY OF ARGUMENT

- For 20 years, TRPA has deprived Tahoe property owners

of all beneficial use of their land under a series of restrictive

moratoria and regional plan provisions. The deprivations

suffered by the present petitioners under Ordinance 81-5 and

Resolution 83-21 are no different in incidence or effect than

those effected under TRPA’s 1984 regional plan, or the 1987

plan currently in effect. Isolating a single 32-month period out

of the past two decades for evaluation as an independent,

“temporary” violation of the petitioners’ rights risks losing sight

of the important context of TRPA’s continuous prohibitions, of

which this period of time was a small element. It is undisputed

that the Takings Clause requires just compensation when

regulations deprive owners of all economically viable use of

their land. Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1015 (1992), and that

“temporary” takings which, as here, deny a

landowner all use of his property, are not different in

kind from permanent takings, for which the

Constitution clearly requires compensation.

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 318 (1987). Although

carving out the 32-month period at issue here is essentially

6

arbitrary,’ as TRPA’s policy toward the petitioners during that

period did not differ from its ongoing development ban,

compensation for the fair value of petitioners’ property over

that time is mandated by Lucas and First English.

Over this same period of time, the Ninth Circuit Court of

Appeals has repeatedly deferred to TRPA’s unique construction

of the Takings Clause of the Fifth Amendment. This Court has

twice been called upon to reverse the Ninth Circuit on these

issues and rule that TRPA is indeed subject to the constraints of

the Takings Clause. This Court should use the present case as

an opportunity to forthrightly address this issue, and deliver an

unmistakable message to TRPA and the Ninth Circuit that no

instrumentality of government is beyond the reach of the

Constitution.

Finally, the decision below rests on the alleged need to

avoid “conceptual severance” in regulatory takings claims.

However, the notion of conceptual severance is a red herring

that contributes nothing of substance to the evaluation of

whether restrictive land use regulations have deprived an owner

of all beneficial use of a recognized property interest protected

by the Takings Clause. As the decision below exemplifies,

virtually any real-world property interest can be “conceptually

merged™ into some greater, more abstract conception of

> The 32-month period currently at issue before this Court is merely

a residual, petitioners’ takings claims for the remainder of the 20

years having been defeated by the trial court’s application of the

statute of limitations, an erroneous ruling that a court order enjoining

implementation of the 1984 regional plan somehow absolved TRPA

of responsibility for depriving petitioners of the use of their land

from 1984 through 1987, etc. See Tahoe-Sierra, 216 F.3d at 770-71.

* Whether the process is denoted as conceptual merger, “conceptual

agglomeration” (see Steven J. Eagle, Regulatory Takings § 8-2(h)

(1996)), or “conceptual composition,” (see R. S. Radford, Regulatory

(continued...)

7

property for the purpose of concluding that the abstraction has

not been taken. This is a sterile exercise that should be rejected

in favor of a good-faith examination of the actual impact of

TRPA’s restrictive land use regulations on the actual property

interests owned by the petitioners now before this Court.

ARGUMENT

I

THE MORATORIUM AT ISSUE IN THIS

CASE IS ONLY ONE SMALL ELEMENT

IN TRPA’S LONG HISTORY OF ABUSING THE

RIGHTS OF TAHOE PROPERTY OWNERS

WHILE EVADING THE CONSTITUTIONAL

MANDATE OF JUST COMPENSATION

Lake Tahoe property owners have been attempting for two

decades to obtain permission to build vacation or retirement

homes on their land. Throughout that time TRPA has frustrated

their efforts, while the Ninth Circuit Court of Appeals has

consistently deferred to the agency’s regulatory initiatives. As

petitioners themselves capably argue, the moratorium at issue

in this case, standing alone, is sufficiently onerous to trigger the

requirement of just compensation under the Takings Clause. In

a broader sense, however, this 32-month deprivation must be

understood as merely one element—and indeed a relatively

minor one—in TRPA’s long-term strategy of banning all

economically viable use of privately owned land within its

jurisdiction, while evading the constitutional mandate of

providing just compensation to the owners.

* (...continued)

Takings Law in the 1990's: The Death of Rent Control?, 21 Sw.

Univ. L. Rev. 1019, 1067 n. 284 (1992)), this relatively trivial

intellectual exercise has the potential to eviscerate the protections of

the Takings Clause in all cases short of the outright confiscation of

title to the entirety of an individual’s assets.

8

A. The “Temporary” 32-Month Development

Freeze Under Ordinance 81-5 and Resolution

83-21 Was Part of an Ongoing Restrictive

Scheme That Deprives Petitioners of All

Beneficial Use of Their Property to This Day

Both the trial court and the Ninth Circuit in the

proceedings below analyzed TRPA’s Ordinance 81-5 and

Resolution 83-21 as if these measures imposed an isolated,

temporary, 32-month development ban on the petitioners’

property. In fact, from the viewpoint of the landowners, this

period was indistinguishable from any other time interval since

TRPA began exercising its powers under the 1980 compact.

The specific legislative rationale has changed from time to time,

but TRPA has denied these individuals the right to make any

beneficial use of their property continuously for the past 20

years.

As Professor Eagle has noted concerning this case:

[Tjhere is no clear-cut distinction between a

permanent prohibition and a temporary one. This is

so both because of the possibility that one

“temporary” regulatory barrier could be crafted after

another, with no individual regulation being deemed

a taking. The facts in Tahoe-Sierra well illustrate

that point. More fundamentally, regulations now

“permanent” may be fleeting and regulations now

“temporary” may endure for generations.°

That TRPA’s “temporary” moratorium has for all practical

purposes endured indefinitely is confirmed by the experience of

Bernadine Suitum, who was subjected to the same deprivations

* Steven J. Eagle, Temporary Regulatory Takings and Development

Moratoria: The Murky View from Lake Tahoe, 31 Env’tl L. Rep.

10224, 10227 (2001).

9

under TRPA’s 1987 plan that the present petitioners suffered

under Ordinance 81-5 and Resolution 83-21.

In 1989, when Mrs. Suitum applied for permission to build

a small A-frame on her residential subdivision lot in Incline

Village, Nevada, her parcel was one of the last remaining

undeveloped lots in the subdivision. The property was bordered

by existing homes on three sides, and on the fourth by a well-

maintained paved street. A fire hydrant stands near one corner

of the lot, and utility lines (including cable television service)

pass overhead. Nevertheless, acting under authority of its 1987

Regional Plan, TRPA denied Mrs. Suitum’s request to build a

modest retirement home on her parcel. Indeed, the agency

responded to her application by classifying her lot as lying

within a “Stream Environment Zone” (SEZ)—a classification,

shared by many of the present petitioners, on which “no new

land coverage or other permanent land disturbance shall be

permitted.” Her property was also declared unbuildable under

TRPA’s Individual Parcel Evaluation System (IPES). Faced

with the irony of its declaring a single vacant lot in the middle

of a busy, fully built out subdivision as too environmentally

sensitive to allow the soil to be disturbed, TRPA was unfazed:

according to the agency, the fact that Mrs. Suitum’s lot was

“surrounded by developed parcels and is serviced by a paved

street and utilities is not part of the IPES scoring elements.”

TRPA’s intransigence seemed especially odd in that its

hard-line position applied solely to private development of the

property. Under the same code that allowed TRPA’s

bureaucrats to deprive Mrs. Suitum of all use of her retirement

® See 1987 Regional Plan for the Lake Tahoe Basin at iv-15; TRPA

Code of Ordinances § 20.4.B.

? Suitum v. Tahoe Regional Planning Agency, Opposition to

Defendant’s Motion for Summary Judgment, Court Record

(CR) 68, Exhibit 2 at 14.

10

homesite, governmental development of the same property

would have been acceptable.* Nevertheless, with respect to

private residential owners such as the present petitioners, it is

clear that TRPA’s position under the current 1987 plan is in no

way less restrictive than it was 20 years ago, under Ordinance

81-5 and Resolution 83-21. The only difference is that today,

owners of properties that TRPA brands “SEZ” are allowed to

apply for permission to make some beneficial use of their land;

however, there is no possibility that such permission will be

granted.

Nine years ago, this Court laid down the categorical rule

that the Takings Clause requires just compensation whenever

regulations deprive owners of all economically viable use of

their land. Lucas v. South Carolina Coastal Council, 505 U.S.

at 1015. Five years before that this Court established that

“temporary” takings which, as here, deny a

landowner all use of his property, are not different in

kind from permanent takings, for which the

Constitution clearly requires compensation.

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. at 318. Although carving out

the 32-month period at issue here is essentially arbitrary, as

TRPA’s policy toward the petitioners during that period did not

differ from the ongoing development ban it has pursued down

to the present day, compensation for the fair value of

petitioners’ property over the life of Ordinance 81-5 and

Resolution 83-21 is mandated by Lucas and First English.

* According to TRPA’s regional plan, land in a SEZ will support no

new private land coverage or permanent land disturbance

whatsoever, but may be used for public recreation facilities or public

service facilities. See 1987 Regional Plan for the Lake Tahoe Basin,

at iv-25-26.

1]

B. The Opinion of the Ninth Circuit Below

Is Merely the Latest in a Line of Decisions

in Which That Court Has Deferred to

TRPA’s Regulatory Mission, Effectively

Insulating the Agency from Constitutional

Constraints Under the Fifth Amendment

Residents and would-be residents of the Tahoe region

have sought compensation from TRPA for the taking of their

property since before the adoption of the 1980 compact.

Unfortunately for these property owners, the United States

Court of Appeals for the Ninth Circuit has repeatedly deferred

to TRPA’s regulatory mission by effectively insulating the

agency from constitutional constraints under the Fifth

Amendment.

The first inverse condemnation claim against TRPA to

reach the Ninth Circuit was Jacobson v. Tahoe Regional

Planning Agency, 566 F.2d 1353 (9th Cir. 1977). In that case,

developable land that had previously been zoned as residential,

multiple residential, and commercial was downzoned under

TRPA’s guidelines to “general forest,” “recreation,” and

“conservation reserve.” Jd. at 1357-58. In that case, the court

of appeals held that the Eleventh Amendment granted TRPA

absolute immunity from liability under the Takings Clause;

even though the agency’s regulations might deprive Tahoe

landowners of all productive use of their property, the owners

had no recourse under the Fifth Amendment. /d. at 1360. This

Court granted certiorari and reversed the Ninth Circuit, thereby

establishing a pattern that continues to this day. See Lake

Country Estates v. Tahoe Regional Planning Agency, 440 U.S.

391 (1979).

On remand from this Court, the United States District

Court for the District of Nevada ruled that, even though

Eleventh Amendment immunity did not pertain, applying the

Takings Clause to TRPA would nevertheless be “inappropriate”

because, inter alia, the agency lacked formal condemnation

12

authority. See Jacobson v. Tahoe Regional Planning Agency,

474 F. Supp. 901, 903 (D. Nev. 1979).? This ruling was

affirmed without opinion by the Ninth Circuit, see Jacobson v.

Tahoe Regional Planning Agency, 661 F.2d 940 (9th Cir.

1981).

Comparable judicial deference to TRPA’s mission was

displayed when an earlier incarnation of the present litigation

reached the Ninth Circuit more than a decade ago. See Tahoe-

Sierra Preservation Council v. Tahoe Regional Planning

Agency, 911 F.2d 1331 (9th Cir. 1990). On that occasion, the

appellate court coined a new “ripeness” requirement for

regulatory takings claims—holding that property owners whose

land has been stripped of all beneficial use are required to seek

an amendment to the offending agency's general plan prior to

filing suit for inverse condemnation. See id. at 1336-39. This

was a completely unprecedented requirement—forcing citizens

to engage in political lobbying as a condition precedent to being

allowed to exercise their First Amendment right to petition the

government in court. In the words of one commentator:

In conjunction with the already burdensome

requirements of finality and exhaustion of state

compensation procedures, this new requirement

would have transformed the Fifth Amendment's just

* The district court also held that the landowners could not maintain

a suit for damages against TRPA for violation of their civil rights

under 42 U.S.C. § 1983 on the circular reasoning that if

compensation were not available for TRPA’s “confiscatory”

regulations under the Takings Clause, injured property owners

should not be allowed to sue for damages for the agency’s violation

of their due process rights. 474 F. Supp. at 904.

13

compensation mandate into a theoretical pipe dream

for private property owners.'°

This rule has only been applied by the Ninth Circuit to takings

claims asserted by those property owners against TRPA and has

not been imposed on any other litigants, before or since. See

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning

Agency, 938 F.2d 153, 157 (9th Cir. 1991).

A further example of deference to TRPA can be found in

Suitum v. Tahoe Regional Planning Agency, 80 F.3d 359 (9th

Cir.), cert. granted, 519 U.S. 926 (1996), vacated, 123 F.3d

1322 (1997). There, the Ninth Circuit ruled that, although

TRPA had deprived an elderly widow of all beneficial use of

her retirement homesite, the landowner could not state a

regulatory taking claim until she canvassed the region in an

attempt to find buyers for three types of administrative credits

which the agency had created. Jd., 80 F.3d at 362-63. Once

again, this Court granted certiorari and reversed the Ninth

Circuit. See Suitum v. Tahoe Regional Planning Agency, 520

U.S. 725 (1997). As Chief Justice Rehnquist commented at

oral argument, the Ninth Circuit had denied Mrs. Suitum the

right to pursue her constitutional remedy against TRPA based

on an argument that essentially reduced to:

TRPA says you can’t use your lot but here’s some

scrip, you go over to Harrah’s and you can play

roulette with it."

© Timothy V. Kassouni, The Ripeness Doctrine and the Judicial

Relegation of Constitutionally Protected Property Rights, 29 Cal. W.

L. Rev. 1, 33 (1992).

'' Suitum v. Tahoe Regional Planning Agency, No. 96-243,

Transcript of Oral Argument, 1997 U.S. TRANS LEXIS 22, 26.

14

Unfortunately, it appears that no matter how often this

Court rebuffs TRPA’s attempts to take private property for

public use without paying any compensation, the Ninth Circuit

continues to defer to TRPA’s unique construction of the Fifth

Amendment. This Court should use the present case as an

opportunity to forthrightly address this issue, and deliver an

unmistakable message to TRPA and the Ninth Circuit that no

instrumentality of government is beyond the reach of the

Constitution.

“CONCEPTUAL SEVERANCE”

IS AN EMPTY CONSTRUCT THAT

CONTRIBUTES NOTHING TO A MEANINGFUL

JURISPRUDENCE OF REGULATORY TAKINGS

Judge Reinhardt’s opinion for the Ninth Circuit was

expressly based on the supposed need to avoid “conceptual

severance” in takings claims:

Property interests may have many different

dimensions. For example, the dimensions of a

property interest may include a physical dimension

(which describes the size and shape of the property

in question), a functional dimension (which

describes the extent to which an owner may use or

dispose of the property in question), and a temporal

dimension (which describes the duration of the

property interest). At base, the plaintiffs’ argument

is that we should conceptually sever each plaintiff s

fee interest into discrete segments in at least one of

these dimensions - the temporal one - and treat each

of those segments as separate and distinct property

interests for purposes of takings analysis. Under this

15

theory, they argue that there was a categorical taking

of one of those temporal segments."”

“Conceptual severance” is a term that was introduced into

legal parlance by Professor Radin in a law review article

published 13 years ago:

[Conceptual severance] consists of delineating a

property interest consisting of just what the

government action has removed from the owner,

and then asserting that that particular whole thing

has been permanently taken. Thus, this strategy

hypothetically or conceptually “severs “ from the

whole bundle of rights just those strands that are

interfered with by the regulation, and then

hypothetically or conceptually construes those

strands in the aggregate as a separate whole thing.’”

In other words, Professor Radin decries what she perceives as

the tendency of property owners to seek compensation under

the Takings Clause when government action or regulation has

deprived them of discrete, identifiable property interests that

constitute less than the totality of their holdings. This theme

was embellished by Judge Reinhardt in the opinion below, in

finding that TRPA was not liable for a taking because the

landowners (or their descendants) would retain most of the

"2 Tahoe-Sierra, 216 F.3d at 774 (emphasis added).

'S Margaret Jane Radin, The Liberal Conception of Property: Cross

Currents in the Jurisprudence of Takings, 88 Colum. L. Rev. 1667,

1674-78 (1988), cited in opinion below, 216 F.3d at 776. Although

the term originated with Radin, the concept itself traces back to

Michelman: “It might . . . appear that the scope of the ‘thing’ subject

to devaluation is to be defined by the incidence of the measure

itself.” Frank I. Michelman, Property, Utility, and Fairness:

Comments on the Ethical Foundations of ‘Just Compensation” Law,

80 Harv. L. Rev. 1165, 1193 (1967).

16

“useful life” of their land after the agency had finished

prohibiting them from putting it to any beneficial use.’

However, this was not the only way the court below could have

employed the “conceptual severance” paradigm to arrive at the

same outcome.

In a more recent article than the one relied upon by the

court below, Professor Coletta has pointed out that there is yet

another “dimension” to property:

In the vertical dimension, the relevant parcel is

viewed columnally from the depths of the earth to

the heights of the sky.'*

Viewed in this way, it seems highly dubious that a property

owner should be allowed to claim a Takings Clause violation

simply because land use regulations have deprived him of all

beneficial use of that tiny sliver of his property that happens to

coincide with the surface of the earth.'° Thus, just as the

“temporal” dimension of property can be conceptually extended

until any taking for a span of years can be portrayed as de

minimus, so we can conceptually enlarge holdings “vertically”

until any taking of the surface estate can be portrayed as a

negligible intrusion.

Regardless of the particular model we choose to employ,

analysis of “conceptual severance” rests on a logical sleight-of-

hand. Behind Professor Radin’s reasonable-sounding reference

to property interests consisting of less than “the whole bundle”

216 F.3d at 782.

'S Raymond R. Coletta, The Measuring Stick of Regulatory Takings:

A Biological and Cultural Analysis, | U. Pa. J. Const. L. 20, 36

(1998).

'© See id. at 43-44.

17

lurks an unspoken premise that there is some objectively

complete “bundle” of rights--which, not coincidentally, always

consists of more than what has been taken in any particular

case.

In the decision below, the Ninth Circuit found that

compensation was not required because a 32-month deprivation

of all use was but “a small fraction of the useful life of the

Tahoe properties.”'’ But exactly the same statement would

apply to a 32-year “slice” of the properties’ temporal

dimension. Indeed, a moratorium lasting for 32 centuries

would deprive the Tahoe property owners of less than .0001%

of the expected remaining useful life of their properties,

according to the best available scientific estimates. '*

Taken together, Judge Reinhardt’s and Professor Coletta’s

models make an important point: at the conceptual level,

property is a completely abstract concept, without temporal or

spatial limits. Property only acquires its utilitarian function

when human beings apply their intellects to the task of cutting,

trimming, and defining specific interests and estates out of that

primordial abstraction. Thus, the question is not whether we

should engage in conceptual severance; we always do! The

existence of identifiable, usable, exchangeable property

interests in the real world is entirely the result of man’s

ingenuity in conceptually carving those interests out of the

initial abstraction of property without temporal or spatial

boundaries. The relevant question, in every takings case, is not

whether the property interest at issue arose through conceptual

severance—it invariably did—but whether that particular

7 216 F.3d at 782.

'® See, e.g., American Frozen Food Institute v. Train, 539 F.2d 107,

113 (D.C. Cir. 1976) (noting in dicta that conditions for sustaining

life on earth “are likely to be enjoyed for another four or five billion

years”).

18

interest is one that is recognized and protected under the Fifth

Amendment.

The answer to this question will vary on a case by case

basis, and the notion of conceptual severance adds nothing to

the analysis. Both this Court and the lower federal and state

courts have routinely found regulatory takings of specific

spatial, functional, and temporal property interests that could

easily have been—but were not—folded into more extensive

conceptions of property. Specific, severable interests that have

been recognized as protected by the Takings Clause include

flowage easements,’’ contractual commitments,” liens against

real estate”! and vessels,” the right to exclude third parties” and

the general public,” and the right to devise property to one’s

heirs.*°

These examples illustrate the’ long-recognized

phenomenon of “unbundling” property interests for purposes

'? United States v. Virginia Electric and Power Co., 365 U.S. 624

(1961).

20 Lynch v. United States, 292 U.S. 571 (1934).

*! Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).

22 Armstrong v. United States, 364 U.S. 40 (1960).

8 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982).

** Kaiser Aetna v. United States, 444 U.S. 164 (1979).

*> Hodel v. Irving, 481 U.S. 704 (1987).

19

of applying the protections of the Takings Clause.”* In all these

cases, the relevant question has been perceived to be not

whether the courts can conceive of some more inclusive

property interest that has mot been taken, but whether the

interest that has in fact been taken qualifies for protection under

the Fifth Amendment. As has been noted by the Federal Circuit

Court of Appeals:

Nothing in the language of the Fifth Amendment

compels a court to find a taking only when the

Government divests the total ownership of the

property.” :

This Court should similarly recognize that the notion of

“conceptual severance” is a red herring. As Judge Reinhardt

and Professor Coletta have shown, it is a/ways possible to fold

any given property interest into some broader conception of

property, for the purpose of concluding that the broader

conception has not been taken. But this cannot be the basis of

a serious Fifth Amendment jurisprudence.

If alocal ordinance prohibits a newspaper from publishing

criticisms of elected officials, no one could seriously argue that

the First Amendment was not violated because the paper

remains free to print all manner of other material. Only one

“tiny slice” of the conceivable spectrum of communication has

been foreclosed, yet that would certainly be sufficient to trigger

the protections of the First Amendment.

Similarly, a crime-fighting initiative that authorized

random, warrantless searches of private homes between the

© See Craig A. Peterson, Recent Development in “Takings”

Jurisprudence: Land Use Regulatory “Takings” Revisited: The New

Supreme Court Approaches, 39 Hastings L.J. 335, 357 (1988).

2? Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1568-69

(Fed. Cir. 1994).

20

hours of 4:00 and 5:00 a.m. could not withstand attack under

. the Fourth Amendment on the grounds that no such intrusions

are authorized during the remaining 23 hours of each day. Even

though it could be shown that there are an infinite number of

points of time during which citizens subject to this ordinance

would not be subjected to arbitrary searches, the protection of

the Bill of Rights would clearly foreclose the searches

conducted during the single hour.

In each of the above examples, it is simply irrelevant to

inquire what freedoms remain under the ordinances; the

Constitution is concerned with the freedoms that have been

abridged. As this Court has observed:

We see no reason why the Takings Clause of the

Fifth Amendment, as much a part of the Bill of

Rights as the First Amendment or Fourth

Amendment, should be relegated to the status of a

poor relation in these comparable circumstances.”*

While the useful life of the Tahoe properties may extend

well beyond TRPA’s planning moratorium, the lives of the

individual property owners represent much smaller slices of the

“temporal whole.” The surviving residential property owners

who are now before this Court should not be denied

compensation for the 20 years they have been denied the right

to make use of their property merely because their land will

endure far beyond their own lifetimes.

CONCLUSION

For the reasons stated above, amici Pacific Legal

Foundation and California Association of REALTORS®

respectfully request this Court to reverse the decision below and

8 Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).

21

instruct the court of appeals to remand this matter to the federal

district court for a determination of just compensation.

DATED: September, 2001.

Respectfully submitted,

JUNE BABIRACKI BARLOW, Esq. *R. S. RADFORD

Vice President and General Counsel Pacific Legal Foundation

SONIA M. YOUNGLOVE, Esq. 10360 Old Placerville Road,

Senior Counsel Suite 100

California Association Sacramento, California 95827

of REALTORS® Telephone: (916) 362-2833

525 South Virgil Avenue Facsimile: (916) 362-2932

Los Angeles, California 90020-1403

Telephone: (213) 739-8200 *Counsel of Record

Facsimile: (213) 480-7724

Counsel for Amici Curiae Pacific Legal Foundation

and California Association of REALTORS®