TRPA going to court on land-use issue of 1980s |

TRPA going to court on land-use issue of 1980s

Andy Bourelle

Fourteen years after it was first filed, a lawsuit against Lake Tahoe’s bistate regulatory agency is going to trial.

Tahoe-Sierra Preservation Council vs. the Tahoe Regional Planning Agency is scheduled to begin Dec. 1. It is expected to last three weeks.

“This is probably the biggest land-use case in the country right now,” said Larry Hoffman, attorney for the TSPC. “It’s a huge case.”

Originally filed in 1984, the lawsuit has more than 400 plaintiffs. It centers around TRPA’s alleged “taking” of property in the 1980s.

Hoffman said the TRPA issued a series of moratoriums in the 1980s which stopped property owners from developing certain environmentally sensitive areas. By law, Hoffman said, the agency should have compensated the property owners.

“If the government takes property in the name of a public good, the government must – under the Constitution, under the Fifth Amendment – compensate them for that,” Hoffman said.

The TRPA disagrees.

“One of the critical issues is, can TRPA essentially say to developers in the basin, ‘For a short period of time, let’s take a break. Let’s figure out the best way to proceed that will best help the lake and development,'” said John Marshall, TRPA legal counsel. “They are saying, ‘TRPA, you can do that, but you have to pay us for the value of the land while there was a prohibition on development.’ We’re saying everyone can hold on until we know the right thing to do, because the risk is too great to the lake.”

Because it was filed more than a decade ago, regulatory provisions that are being challenged are now gone. However, the case still is important to the TRPA.

“It’s important for two reasons,” Marshall said. “One, there’s the potential for a big, major judgment that can result, that we believe there is no merit whatsoever to, but it does get your attention. Second, it gets right to the issue of does someone have the right to pollute the lake and to what extent can TRPA regulate property owners to preserve lake clarity?”

The December trial will determine if TRPA is liable and a later trial, if the plaintiffs win, will determine the amount of compensation.

Hoffman said he could not say how much money could be at stake but described it as “substantial.” The original lawsuit claimed more than $30 million in damages.

In the 14-year history of the lawsuit, it has gone through a series of court hearings, appeals and mediation sessions, including two trips to the U.S. Supreme Court, which wouldn’t take the case and sent it back to district court.

During the course of the suit’s history, Hoffman said, about 35 of the plaintiffs have died.

Regardless of which side wins, the loser will likely appeal. However, the trial will be a big step.

“I don’t know if it will be the last step, given the history of this case,” Hoffman said. “It’s an important step. It’s a trial on the merits of the case.”

On that, at least, TRPA agrees.

“This will be a major, major step in the history of this case,” Marshall said. “It will be the first time the issue will be heard in front of a judge. The factual record will be set.”

Judge Edward Reed, who originally handled the case in 1984, will hear the suit in U.S. District Court in Reno. In addition to TRPA attorneys, representatives from the Nevada and California attorneys general will be representing the defense.

Hoffman said, among the numerous witnesses who will be called on to testify, all five of the TRPA’s former executive directors since the original filing have been subpoenaed to testify.

Even after the trial is over, Marshall said, it could take months for Reed to issue a decision.

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