Supreme Court overturns lower court decision on Suitum |

Supreme Court overturns lower court decision on Suitum

Patrick McCartney

The U.S. Supreme Court Tuesday issued a mixed decision on land use in the Tahoe Basin that allowed attornies on both sides of the issue to claim victory.

The court ruled a Sacramento woman can seek fair compensation for a lot in Incline Village without first seeking buyers for the property’s development rights.

However, the Supreme Court also protected the ability of public agencies to restrict the use of certain properties and grant development rights as a form of compensation.

In a ruling that gave both sides reason to celebrate, the Supreme Court unanimously agreed that Bernadine Suitum can sue the Tahoe Regional Planning Agency for allegedly depriving her of the use of her property without compensation.

“The fact she has not sold the (transferable development rights) does not mean she can’t press her claim of taking,” said R.S. Radford of the Pacific Legal Foundation, which had assisted Suitum in appealing the case.

Ronald A. Zumbrun, an attorney for the Tahoe Lakefront Owners Association, said the ruling restricts the ability of government to interfere with property rights.

“This decision eliminates one more hurdle facing a property owner seeking just compensation when government interferes with private property rights,” Zumbrun said.

A federal judge in Reno ruled in 1993 that Suitum would first have to sell the development rights assigned to her property before she could claim she had been damaged. The Ninth Circuit Court of Appeals had previously upheld the lower court decision, which was overturned Tuesday.

But at the same time, a majority of the Supreme Court justices stopped short of declaring as unconstitutional the TRPA’s use of transferable development rights to regulate development on sensitive land in the Tahoe Basin.

In a separate, 6-3 decision, a majority of the court disagreed with an opinion written by Justice David Souter that described transferable development rights as “a clever, although transparent, device that seeks to take advantage of a peculiarity of our takings clause …”

Because the high court limited itself to Suitum’s right to press her claim of unfair compensation without first selling the development rights, the TRPA actually won the larger battle, said Rachelle Nicolle, the agency’s lead attorney in the case.

“We consider the ruling a victory, because she asked the court to declare our building ordinance and transferable development program unconstitutional,” Nicolle said. “The court refused to do so, and instead issued this narrow, procedural ruling. It means we go back to court sooner rather than later.”

Rochelle Nason, the executive director of the League to Save Lake Tahoe, which had supported the TRPA in the case, described the ruling as a setback for property-right interests.

“They had a much bigger goal in mind, to get a broader ruling that would have crippled the TRPA’s regulatory authority,” Nason said. “The fact that the court didn’t rule on the substantive issue … is good news.”

Suitum purchased the Incline Village parcel in 1972, but didn’t apply to build on it until 1989. By that time, the TRPA had implemented a wide-ranging set of land-use regulations that prohibited all construction in stream environments.

The state of Nevada offered to buy the land, but Suitum was not interested in selling. She sued in 1991.

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