In 1972 Bernadine Suitum and her late husband purchased a lot in the Mill Creek Estates Subdivision of Incline Village to build their retirement home. Today, 25 years later, the lot still stands vacant. Even though it is the only privately owned parcel in the neighborhood without a house, the Tahoe Regional Planning Agency designated it as a "stream environment zone," meaning all development was prohibited.
Mrs. Suitum, believing the TRPA had basically confiscated her property without paying for it, went to court. This, unfortunately, began a multiyear odyssey for Suitum through the court system. For years the courts could not help her, finding that her claim was not ripe. Finally, the U.S. Supreme Court has stepped in and cleared the way for Suitum to proceed with her case. Suitum v. Tahoe Regional Planning Agency, 97 Daily Journal D.A.R. 6507 (May 27, 1997).
In a landmark decision that should benefit all property owners, the Supreme court took Suitum's side, ruling that the TRPA's system of "transferable development rights" (TDR's) did not serve as a substitute for rights to develop her own property or keep her from pursuing a claim that the agency must pay her just compensation.
R. S. Radford, the attorney who argued the case for Suitum, called the agency's TDR scheme "nothing more than a government-concocted legal fiction to put the best light on the theft of Mrs. Suitum's property."
Background
How did this situation come about? Well, it began with the laudable goal of protecting the clarity of Lake Tahoe. The lake has exceptional clarity; and the TRPA decided that preserving this attribute required drastic action in the area to restrict private development in the Tahoe watershed and prevent run-off. For Suitum, individually, this meant that no development would be allowed on her land.
Suitum felt that if the agency wanted her land to remain development-free in order to protect the lake it should pay. She thus brought a lawsuit seeking just compensation for her loss. While the case involved the Fifth Amendment just compensation doctrines, at bottom, the legal principle is a simple one: that no landowner should bear alone the cost of a regulation imposed for the benefit of society as a whole.
For many years, the agency was able to side-step any hearing on the merits of Suitum's claim. While admitting that its designation allowed no development on her lot, the agency argued that its TDR regulation did allow Suitum to transfer her potential development rights to another landowner in the area-if she could find one-who could then use those rights to build elsewhere. The agency convinced the lower courts that Suitum's takings claim was not ready to be heard, under traditional ripeness doctrines, until she had exhausted any and all such "transfer" possibilities.
The Supreme Court, however, rejected this logic. In a unanimous ruling, the court declined to accept the agency's theory that helping someone else to build on another parcel, should keep Suitum from being able to sue for the confiscation of her own. Declining to treat such fictitious "transfer" credits as if they were equal to a "use" by Suitum of her property, the court stated "Suitum seeks not to be free of the regulations, but to be paid for their consequences."
Not Far Enough?
Property-rights advocates hoped the Supreme Court would go further and rule on the underlying merits; whether an agency that allows only TDR's instead of development commits a taking. It appeared some of the justices were willing to do so, but the Supreme Court is often very cautious as to the breadth of its takings decisions. For now, the court's ruling has only addressed ripeness to sue, and the merits are yet to be heard.
Suitum is the third decision in the last decade issued by the Supreme Court against a California agency. One can certainly argue that cities and counties are refusing to heed the high court's warnings, since they continue to adopt ever increasing regulation designed to stop or severely restrict development. It is to be expected that city and county planners will not like the Suitum decision, and they will caution that regulation of land development is essential for the public good.
But the issue is not whether land use may be "reasonably" regulated; we can probably all agree that it should. The real issue is what happens if government takes too long or goes too far with its regulation.
Although it was not her intent, Bernadine Suitum has become a symbol for millions of small property owners around the country. In her case, the high court warned that local government must offer a reasonable use of property or the landowner can take his or her case to court. Under Suitum, the courts should get on with the business of deciding such taking claims, rather than denying them on ripeness points.