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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 302

## Text

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®

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0446%3A15. Public record. Not legal advice.