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Suitum v. Tahoe Regional Planning Agency

filed: April 1, 1996.

BERNADINE SUITUM, PLAINTIFF-APPELLANT,
v.
TAHOE REGIONAL PLANNING AGENCY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-91-040-ECR. Edward C. Reed, District Judge, Presiding.

Before: Mary M. Schroeder and Arthur L. Alarcon, Circuit Judges, and Owen M. Panner,*fn* District Court Judge. Opinion by Judge Panner.

Author: Panner

PANNER, District Judge:

In this 42 U.S.C. § 1983 action, Bernadine Suitum alleges that the Tahoe Regional Planning Agency (TRPA) committed an unconstitutional taking and violated her rights to substantive due process and equal protection when it refused to permit her to build a home on her residential lot in the Lake Tahoe Basin. The district court concluded that Suitum's claims were unripe and granted summary judgment to TRPA. We affirm.

BACKGROUND

I. TRPA

TRPA was created in 1969 by the Tahoe Regional Planning Compact. Pub. L. 91-148, 83 Stat. 360; Cal Gov't Code § 66801; Nev. Rev. Stat. § 277.200 (1969 Compact); amended, Pub. L. 96-51, 94 Stat. 3233; Cal Gov't Code § 66801; Nev. Rev. Stat. § 277.200 (1980 Compact). We have previously detailed TRPA's background and it need not be repeated here. See, e.g., People of Calif. v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1310-1312 (9th Cir.), amended, 775 F.2d 998 (9th Cir. 1985).

II. The 1987 Plan

The 1987 Plan, drafted pursuant to the 1980 Compact, governs development of Suitum's property and includes the Individual Parcel Evaluation System (IPES) under which TRPA assigns a numerical score to a residential lot depending on its relative environmental suitability for development. See Carpenter v. Tahoe Regional Planning Agency, 804 F. Supp. 1316, 1320 (D. Nev. 1992) (listing relevant environmental criteria). TRPA annually establishes a numerical IPES level enabling owners of parcels with IPES scores above the stated level to seek building permits. Owners of parcels with IPES scores below that level may proceed with development only if the level is lowered. Id.

The 1987 Plan also creates Stream Environment Zones (SEZs) which generally convey surface water from upland areas into Lake Tahoe and its tributaries. The 1987 Plan allows no new land coverage or other permanent land disturbance within SEZs, except for certain limited public uses.

Finally, the 1987 Plan establishes four criteria that the property owner must meet before building a single-family residence: (1) an IPES score above the numerical level established for development in that calendar year; (2) a residential development right; (3) adequate land coverage; and 4) a residential allocation.

III. Transfer of Development Rights

The Transfer of Development Rights (TDR) program is "an elaborate system of transfers of development rights[,]" id., which allows for transfers of land coverage, residential development rights, and residential allocations. A property owner may transfer land coverage to a receiving parcel within the same hydrologic zone allowing for construction of a larger project on the receiving parcel. For property within a SEZ, the property owner is allowed to transfer one percent of the total property area. For example, Suitum's property is approximately 18,300 square feet. Because it is located in a SEZ, she is allotted 183 square feet of land coverage to transfer to another parcel.

Subject to county approval and the use and density eligibility of the receiving parcel, residential development rights may be transferred anywhere in the Lake Tahoe Basin. Property owners may transfer a residential allocation from a parcel with a low IPES ...


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