Incline Village, Nev. - There's a vacant lot in this town that's been discussed before the U.S. Supreme Court. The two-fifths-of-an-acre lot, a boggy tangle of willows and ponderosa pines beside narrow Mill Creek, is one of the few remaining undeveloped patches. Houses crowd around, all part of a subdivision built in the 1960s and "70s.


Bernadine Suitum, an 83-year-old widow, traded a house near Sacramento, Calif., for this lot in 1972. She missed the housing boom but decided to build on her land in 1989; that was when the Tahoe Regional Planning Agency (TRPA) told her no building was allowed.


The agency had instituted a tough program to curb erosion and runoff from development, which is the major cause of an alarming decline in Lake Tahoe's clarity (HCN, 5/12/97). Her lot, they told Suitum, was in a stream environment zone and all she could do to recoup her investment was sell a "transferable development right" to someone who owned land suitable for building.


Instead, Suitum sued the agency in federal district court in Reno. Her case, going all the way to the Supreme Court, has been closely watched by planning agencies, governments, environmentalists, and property-rights advocates around the country.


Suitum vs. TRPA boils down to whether a planning agency can forbid development on private property through zoning, while creating a market in transferable development rights (TDRs) that allows the owner to get some limited value out of the property. Because the Fifth Amendment to the Constitution states that private property shall not be taken for public use without just compensation, TDRs are used to partially compensate owners and thus avoid an illegal "taking."


In Suitum's case, the planning agency's attorneys had argued her lawsuit wasn't "ripe" for trial because she had never tried to sell her development rights. A federal judge and the 9th U.S. Circuit Court of Appeals agreed. The Supreme Court did not, and ruled unanimously that Suitum's case deserved a trial in federal district court in Reno, where the lawsuit began. The ruling was purely procedural, but it was cheered by both sides in the case.


Property-rights advocates had hoped that the Supreme Court would rule that TDRs were "a cheap way of avoiding just compensation," as R.S. Radford, a lawyer for the Pacific Legal Foundation, argued on behalf of Suitum. The court disagreed, 6-3.


Had the court invalidated TDRs, it could have undermined similar planning efforts around the country. Briefs in support were filed by the U.S. solicitor general, the governors of eight states, including California and Nevada, the National League of Cities, the U.S. Conference of Mayors, the American Planning Association, the National Trust for Historic Preservation, and the League to Save Lake Tahoe.


Like many takings cases, Suitum vs. TRPA was touted by both sides as a watershed case. For each side it symbolizes much more than whether one more vacant lot sprouts a new home.


Susan Scholley, an attorney for the planning agency, says this lot works as a sponge, absorbing some of the impact of runoff from surrounding development before it reaches the lake. The agency has designated about 10 percent of the private land in the Tahoe basin - around 1,000 properties - as lying within stream environment zones.


Although Suitum's 18,300-square-foot lot cannot be developed, it could be worth more than $30,000, according to the agency, if the development rights were sold. The land could also be sold to a neighbor as private open space or to the public agencies that are purchasing such land to protect Lake Tahoe.


For the agency, TDRs represent the linchpin of a complicated system that would crash if the agency has to pay full market value for Suitum's lot - about $200,000 - and hundreds of others where development has been restricted.


Suitum's attorney, Pat Cashill, however, says the "TDR system is a sham" because the trade is unequal and houses were built on lots all around hers. Cashill has appealed for an expeditious trial, due to Suitum's age. He hopes it will start this year.


A similar but separate class action suit involving 500 property owners at Lake Tahoe who sued the Tahoe Regional Planning Agency for $27 million has been pending in federal district court, awaiting the Supreme Court's decision in Suitum vs. TRPA. That case will also now proceed to trial.


* Jon Christensen





Jon Christensen writes in Carson City, Nevada.