Bernadine Suitum v. Tahoe Regional Planning Agency
Docket: 94-15768
Court: Court of Appeals for the Ninth Circuit; April 1, 1996; Federal Appellate Court
Bernadine Suitum filed a 42 U.S.C. § 1983 lawsuit against the Tahoe Regional Planning Agency (TRPA), claiming unconstitutional taking and violations of substantive due process and equal protection rights due to TRPA's refusal to permit her to build a home on her lot in the Lake Tahoe Basin. The district court determined that Suitum's claims were unripe and granted summary judgment in favor of TRPA, a decision that was affirmed by the Ninth Circuit.
TRPA was established in 1969 by the Tahoe Regional Planning Compact, which provides a framework for land use and environmental management in the region. The 1987 Plan, developed under the 1980 Compact, governs development on Suitum's property and includes the Individual Parcel Evaluation System (IPES), which assigns scores to residential lots based on environmental criteria. To obtain building permits, property owners must have an IPES score above a specified annual level, along with other criteria like residential development rights and land coverage.
The plan also restricts development in Stream Environment Zones (SEZs), which are crucial for water management in the area, allowing no new land disturbance except for limited public uses. Additionally, the Transfer of Development Rights (TDR) program facilitates the transfer of development rights and land coverage, permitting property owners to allocate their rights to other parcels within the same hydrologic zone. Suitum's property, located in an SEZ, allows her to transfer a limited amount of land coverage (183 square feet) to other parcels, contingent upon county approval.
Suitum purchased her property in 1972 and sought to develop it in 1989, receiving a residential allocation from Washoe County for house construction. However, the Tahoe Regional Planning Agency (TRPA) determined that the property was entirely within a Stream Environment Zone (SEZ) and assigned it a zero Individual Parcel Evaluation System (IPES) score, which Suitum appealed but was upheld by TRPA. Suitum holds one residential development right and has 183 square feet of transferable land coverage but did not use her 1989 allocation, allowing it to revert to the county. She has not applied for a new residential allocation or to transfer her development rights under the Transfer of Development Rights (TDR) program.
The standard of review for a grant of summary judgment is de novo, examining whether there are genuine material facts and if the district court correctly applied the law, following Federal Rule of Civil Procedure 56(c). A regulatory taking under the Fifth Amendment occurs when a regulation denies economically viable use of land, although the definition of "economically viable use" remains imprecise. The determination involves assessing permissible uses, the economic impact of the regulation, and the interference with investment-backed expectations.
For "as applied" challenges regarding regulatory takings, plaintiffs must demonstrate that they sought a final decision from the relevant authority—TRPA in this case—before filing suit. This finality requirement helps courts assess whether the regulation is excessive by clarifying its extent, as the court cannot determine if a regulation has "gone too far" without understanding its full scope.
A transfer of development rights (TDR) must be pursued before a regulatory taking claim against the Tahoe Regional Planning Agency (TRPA) can be deemed ripe, as established by Judge Fletcher's prior dicta in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. The court agrees with this view, requiring Suitum to apply for TDR through TRPA’s program to ascertain the extent of her property’s use and potential relief. Without this application, TRPA cannot evaluate the claimed taking, and Suitum cannot understand the regulations' true impact on her investment expectations. The court emphasizes the importance of determining whether the property retains any reasonable beneficial use, noting that TDR functions similarly to conventional planning processes.
A 'limited' futility exception to the ripeness doctrine exists, allowing claims to proceed if the plaintiff can demonstrate that pursuing the application would be futile or unfair. Suitum argues that the TDR program is ineffective and has produced no sales, citing the opinion of expert Paul Kaleta. In contrast, TRPA counters with an affidavit from appraiser Stephen R. Johnson, asserting that Suitum's development rights hold value. The district court found significant value in the TDR program, excluding Kaleta's affidavit from consideration and relying solely on TRPA's valuation evidence, and the court's decision to do so is upheld as not an abuse of discretion.
Review of a district court's decision regarding expert testimony is conducted for abuse of discretion, which occurs when the court misapplies the law or makes a clearly erroneous factual determination. Suitum argues that Kaleta's experience as a TRPA regulator qualifies him to testify on the value of her development rights. However, for expert testimony to be admissible, the expert must have relevant qualifications as outlined in Federal Rule of Evidence 702. The district court appropriately determined that a licensed appraiser or an individual with clear valuation experience is necessary for this issue. Kaleta lacks such qualifications, as his experience does not equate to appraising market value. Thus, the court's exclusion of his affidavit was justified.
Evidence from TRPA indicates that Suitum's development rights are valued between $10,000 to over $21,500 without an allocation right, and increase by approximately $30,000 with one. Consequently, Suitum cannot prove that engaging in the TDR program is futile, making her claims regarding takings, equal protection, and substantive due process ripe for the court. Suitum's assertion that she need not participate in the TDR program due to its inadequate compensation offers is rejected, as a valid claim of regulatory taking must first establish the occurrence of a taking, which assesses the economic impact of regulations.
To ascertain if a taking has occurred, compliance with the final decision process, including applying to the TDR program, is necessary, even if the process may not yield equivalent value to the landowner. Suitum's failure to apply renders her claims unripe. Additionally, TRPA's request for attorneys' fees under 42 U.S.C. § 1988 is denied, as Suitum's claims were not deemed frivolous or groundless. The court affirms the district court's decisions. The ripeness requirements also apply to due process and equal protection claims.
