December 10, 2015

PLF challenges burdensome development regulations in Lake Tahoe area

By PLF challenges burdensome development regulations in Lake Tahoe area

The Tahoe Regional Planning Agency (TRPA) has regulated land use in the Lake Tahoe Basin since 1969. It is a bi-state compact agency formed through an agreement between California and Nevada for the purpose of protecting Lake Tahoe and its surroundings. Using its significant regulatory power, TRPA has long been a thorn in the side of property owners, as decades of litigation challenging development moratoria failed to obtain any favorable results.

Our clients, Ray Burns and Teresa Avila-Burns, are San Jose residents who are having their first encounter with TRPA. In 2009, they purchased a vacant parcel out of foreclosure. Although vacant, a prior home had been situated on the lot for 30 years before it was destroyed in 2007 by the catastrophic Angora Fire. The parcel is in a fully developed neighborhood of single family homes, with paved access, public water and sewer, power, and close proximity to a fire station, hospital, grocery store and other amenities. The Burns were excited to find a parcel situated in a safe place where they could build a home for their elderly mothers to enjoy during their retirement years.

Unfortunately, the Burns learned in 2014 that TRPA might not permit them to build on the property. Although TRPA representatives initially directed the Burns to purchase a building allocation that allowed them to begin the permitting process, TRPA later said that the Burns’ lot had to be scored under the Individual Parcel Evaluation System (IPES). That system is designed to determine whether the parcel could be developed at all. This past March, TRPA completed its evaluation and declared the property to be entirely within a Stream Environment Zone because of a small creek and some runoff towards the rear of the parcel. Unfortunately, that designation meant the property received a “zero” score and is completely precluded from development.

Unlike many property owners in the area, the Burns decided to seek constitutional protection. The Supreme Court of the United States held in Lucas v. South Carolina Coastal Council that agency decisions which deprive property of all economically viable use are “categorical takings” in violation of the Fifth Amendment. TRPA has the power to preclude all economic use of the Burns’ parcel, but the Fifth Amendment requires just compensation be paid to the Burns for rendering their property useless. And in this instance, TRPA’s actions are particularly irrational: the Burns’ parcel had a home on it for 30 years, it is more than five miles from the lake, and rebuilding a home on this parcel would have no adverse impact on the lake or environment.

If TRPA wants to pursue its strategy of restricting property rights by prohibiting development on vacant parcels, it may do that, so long as it fully compensates the property owners as required by the Fifth Amendment. That is why PLF filed suit today in federal court in the Eastern District of California. You can read our complaint here, and view a short video about the case here.

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