Home » Case Summaries » 2000 » Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency


Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency



The Ninth Circuit reversed the district court’s holding that a temporary building moratorium amounted to a categorical taking, affirmed the district court’s conclusion that the Tahoe Regional Planning Agency’s (TRPA) adoption of a development plan was not the actionable cause of any takings that occurred while TRPA was enjoined from accepting applications, and affirmed the district court’s dismissal of some of plaintiffs’ claims because the statute of limitations had run.

The controversy in this case centered around land use regulations imposed by TRPA in the Lake Tahoe area of California and Nevada. In 1969, the states of California and Nevada enacted the Tahoe Regional Planning Compact (Compact), a bi-state compact approved by Congress, which formed TRPA to preserve Lake Tahoe and the surrounding basin. In August 1981, TRPA enacted Ordinance 81-5 in response to requirements set out in the 1980 amendments to the Compact. Ordinance 81-5 temporarily prohibited most construction on environmentally sensitive lands. The ordinance remained in effect from August 1981 until August 1983 (Period I). In August 1983, TRPA adopted a resolution that temporarily prohibited development of environmentally sensitive lands until a new regional land use policy was adopted. The resolution remained effective until April 1984 (Period II), when TRPA adopted a new regional land use plan under Ordinance 84-1. Subsequently, California sued TRPA, claiming Ordinance 84-1 would not sufficiently protect the Lake Tahoe Basin. The district court enjoined the ordinance, and the Ninth Circuit upheld the injunction on appeal. The injunction remained in place from June 1984 until TRPA adopted a new regional land use plan in 1987 (Period III). The 1987 plan remained in place at the time of the litigation, thus, Period IV runs from 1987 to the appeal. Property owners in California and Nevada filed suit in 1984 after TRPA adopted the regional plan, claiming several constitutional violations. Years of litigation disposed of most of the claims; the only claims at issue in this appeal involved the plaintiffs’ section 1983[1] takings claims.

On appeal, the Ninth Circuit first addressed the district court’s holding that the defendants were liable under section 1983 for a categorical taking of plaintiffs’ property during Periods I and II. The Ninth Circuit reversed and held that, under the Supreme Court’s holding in Lucas v. South Carolina Coastal Council,[2] the regulations in place during Periods I and II did not constitute a taking of plaintiffs’ land. The court examined Supreme Court takings jurisprudence and refused to “conceptually sever” the plaintiffs’ fee interest in the parcels of property for purposes of the takings analysis.[3]

Plaintiffs brought a facial challenge to Ordinance 81-5 and Resolution 83-21, as a categorical taking that denied the plaintiffs “all economically beneficial or productive use of [their] land.”[4] The plaintiffs asserted that for the purpose of the takings analysis, the court should “conceptually sever each plaintiff’s fee interest” into a “temporal dimension” and treat that segment as a “separate and distinct property interest[].”[5] Therefore, the “denominator” in the takings analysis would focus on the difference in value of the property prior to the regulations, as compared to the value while the regulations were in effect during Periods I and II. The plaintiffs asserted three arguments in support of their “conceptual severance” theory. The Ninth Circuit rejected all three of the plaintiffs’ arguments, recognizing that most modern case law rejected “conceptual severance” and held that the relevant property interests for the takings analysis were the whole parcels of property owned by the plaintiffs.

First, the Ninth Circuit examined a Supreme Court case that had “rejected conceptual severance in the temporal dimension of property rights.”[6] In Agins v. Tiburon,[7] the Supreme Court rejected a takings claim comparable to the Council’s. The plaintiffs in Agins argued that an abandoned condemnation proceeding by the City of Tiburon had destroyed the use of the land “during the pendency of the . . . proceedings.”[8] The Supreme Court rejected the claim because the plaintiff could sell or develop the property after the city abandoned the condemnation claim. Therefore, the Supreme Court focused on the temporary nature of the condemnation proceeding and refused to carve out a temporal “slice” of the parcel as a separate property interest.[9] The Ninth Circuit held that the Supreme Court’s decision in Agins was sufficiently similar to support a rejection of the plaintiffs’ argument for “conceptual severance” in this case.

The court next discarded plaintiffs’ second argument that the Supreme Court’s decision in First English Evangelical Lutheran Church v. County of Los Angeles (First English)[10] held that “conceptual severance of the temporal dimension of property interests is generally required.”[11] The Ninth Circuit flatly rejected this argument, holding that First English does not apply to temporary moratoria. The court concluded that First English addressed the issue of whether compensation was due to plaintiffs for a temporary taking. However, the “temporary” taking in First English was a regulatory taking eventually invalidated by the courts as unconstitutional. Therefore, temporary moratoria, like the ordinances enacted by TRPA, were not a “temporary taking” because they had not been invalidated as unconstitutional. The Ninth Circuit also concluded that the district court erred in holding that United States v. General Motors Corp.[12] supported conceptual severance of the plaintiffs’ property. The court stated that General Motors dealt with a physical occupation by the government of property, and physical occupation cases are analyzed under a different framework than regulatory takings cases.[13]

Having decided that the property interests to be considered were the whole parcels of property, the Ninth Circuit next considered whether Ordinance 81-5 and Resolution 83-21 had effected a categorical taking of plaintiffs’ property. The court held that the regulations in effect during Periods I and II were not a taking of plaintiffs’ land because the regulations did not deprive the land of all of its value or use. The court pointed out that the regulations did not make the land valueless because the regulations preserved the future developmental value of the property. Furthermore, the court recognized that even though the regulations might have had a negative effect on property values in the basin, the temporary moratorium on building did not wipe out all the value of the properties.

Plaintiffs’ second issue raised on appeal challenged the district court’s holding that TRPA’s adoption of the 1984 regional plan was “not the actionable cause of any deprivation of the plaintiffs’ Fifth and Fourteenth Amendment rights” during Period III.[14] According to the district court, TRPA could not be liable under section 1983 for any taking during Period III because the injunction prevented adoption of the 1984 Plan. The plaintiffs argued that the injunction was irrelevant to causation because TRPA implemented the 1984 plan, which amounted to a regulatory taking. The Ninth Circuit agreed with the district court, concurring that the injunction made it impossible for TRPA to implement the 1984 plan. As a result, the plan could not cause a regulatory taking.

Plaintiffs argued, in the alternative, that the adoption of the 1984 plan “effectuated a taking by causing the injunction to issue.”[15] The court disagreed, stating that TRPA could not have reasonably foreseen that the injunction would issue. In support, the record indicated that TRPA adopted the 1984 plan after receiving advice from its counsel that the plan would be given deference by the courts and therefore, would not be enjoined. In addition, the courts issued the injunction because the plan was not strict enough. If TRPA adopted a more lenient plan, in line with plaintiffs’ wishes, the injunction would have been even more likely to issue. As a result, the Ninth Circuit affirmed the district court’s holding that TRPA could not be held liable under section 1983 for actions in Period III.

Finally, the Ninth Circuit upheld the dismissal of the plaintiffs’ Period IV claims. The plaintiffs first added the Period IV claims in an amended complaint in 1991 to attack the 1987 plan. TRPA filed a motion to dismiss, asserting that the sixty-day statute of limitations set out in the Compact precluded the claims. The court rejected TRPA’s argument because section 1983 claims are not subject to the Compact’s special statute of limitations. However, the court held that the section 1983 claims were barred by the applicable statute of limitations for section 1983 claims in California and Nevada (one and two years respectively) and upheld the district court’s dismissal of those claims.

[1] Civil Rights Act of 1871, 42 U.S.C. § 1983 (1994).

[2] 505 U.S. 1003 (1992) (holding that a regulation that affects a total diminution in value of property is a categorical taking).

[3] 216 F.3d at 774.

[4] Lucas, 505 U.S. at 1015.

[5] 216 F.3d at 774.

[6] Id. at 775-76.

[7] 447 U.S. 255 (1980).

[8] Id. at 258 n.3.

[9] Id. at 263 n.9.

[10] 482 U.S. 304 (1987).

[11] 216 F.3d at 777.

[12] 323 U.S. 373 (1945).

[13] See Loretto v. Telepromptor Manhattan CATV Corp., 458 U.S. 419 (1982) (holding that any government action that is a physical occupation of property is a categorical taking).

[14] 216 F.3d at 782-83.

[15] Id. at 784.

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