Widow Suitum Fights a "Strange Doctrine"

James S. Burling*

The point of Suitum v. Tahoe Regional Planning Authority, argued before the United States Supreme Court on February 26, 1997, is that it takes a village to save a lake, not a wheelchair-bound old widow who is rapidly losing her sight.

In 1972, John and Bernadine Suitum bought an 18,300 square foot lot in a residential subdivision in Incline Village, not far from Lake Tahoe. The only reason why hers is the last lot that has not yet been developed is because Mrs. Suitum's late husband spent the last years of his life battling illness. It was only after his death that Mrs. Suitum was able in 1989 to apply for a permit to build a small home. When the bistate compact agency, Tahoe Regional Planning Agency (TRPA), denied the permit she sued for a taking and demanded fair market value for the lot.

But TRPA had other ideas. Its exploits in fighting landowners in court are legendary in the Tahoe Basin, and its critics claim the agency has adopted a simple modus operandi: "Why pay money to landowners when you wear 'em out in court?" According to TRPA Mrs. Suitum has been richly rewarded for not being allowed to build on her lot because TRPA gave her a few "transferable development credits" which she can try to sell.

These credits theoretically enable Mrs. Suitum to chase down and sell to some other unidentified third-party owner of sensitive land (but not as sensitive as Mrs. Suitum's land) somewhere in the Lake Tahoe basin the right to construct 183 square feet of land coverage, a few residential development "rights," and if Mrs. Suitum is lucky enough to win a lottery--a residential "allocation". In other words TRPA has established a scheme that forces third parties to pay a small amount of money to the Mrs. Suitums of the basin in order for the third parties to build on their lots. TRPA claims that even though Mrs. Suitum cannot use her small parcel, she must try to peddle these credits on the open market before a court can even determine if she has been injured by TRPA's regulations. In 1972 the Suitum's traded their home in Rio Linda, California, for the Incline Village lot. If the lot could be developed today, it would be worth about $200,000. But TRPA say that she should be happy because it thinks the TDRs might be worth $30,000. Suitum thinks they are worthless.

TRPA argues that it has no choice but to prohibit development on Mrs. Suitum's because the clarity of the lake is threatened by development. To prevent further degradation of water clarity the agency has prohibited all development in "stream environment zones" which are useful for filtering sediments from other developed lots in the basin. Because Mrs. Suitum's lot is in such a zone, the agency found that it must not permit even so much as a picnic table to cover the ground.

Mrs. Suitum, however, points out that her property is more urban than rural. Mrs. Suitum's is the last lot in a fully built-out subdivision at Incline Village. The so-called "stream environment zone" is really a drainage ditch that runs in the back of her property. It is surrounded on three sides by other homes. There is a paved road with utilities on the fourth side. The property is downstream, or actually "down ditch," from an industrial park and an emergency wastewater retention reservoir. The subdivision is near the "Ponderosa Ranch Amusement Park." TRPA never presented any evidence that there would be any environmental harm if Mrs. Suitum is allowed to build the properly constructed modest retirement home of her dreams.

Both the federal district court sitting in Reno and the Ninth Circuit Court of Appeals agreed with TRPA that Mrs. Suitum's case was not ripe because she had not entered the lottery or attempted to sell her TDR's. During oral argument before the Supreme Court, however, every justice who spoke expressed great doubt about TRPA's ripeness argument. PLF attorney R.S. Radford began by arguing that because the TDR's were capable of valuation by experts, there really was no uncertainty as to what had been taken from Mrs. Suitum. Furthermore, because all use of the property had been denied there was no question that the property had been taken. There were a few questions from the court about whether Suitum was asking for the Court to overturn Penn Central's findings that TDR's are relevant to a determination of whether there is taking. The answer is simply that Suitum's case is very different from Penn Central because, among other reasons, that case was ripe (as it was argued in the courts) and there the TDR's preexisted the landmarks law and were transferable to other property already owned by the railroad.

The Court's toughest questions were reserved for TRPA and its amicus ally, the United State's Solicitor's Office. Georgetown Professor of Law Richard Lazarus began by arguing that Mrs. Suitum's argument was contrary to the interest of property owners because the TDR scheme was to their benefit. In criticizing Mrs. Suitum's argument that because the TDRs could be easily valued the case was ripe, Justice O'Connor cut in by saying "that sounds eminently reasonable." She continued that requiring the TDR's to first be sold before a takings case was ripe was a "strange argument." Responding to Chief Justice Rehnquist's remark that at least in Penn Central the railroad owned the other buildings to which it TDRs could be transferred, Lazarus said the Tahoe program was more "flexible." Rehnquist was unimpressed. Although more "flexible" he called them "less useable" comparing these TDRs to the script given out by local casinos and suggesting that perhaps Mrs. Suitum "could stand outside Harrah's [casino] and see what she got for it."

Scalia posed a hypothetical: What if the land on which use is denied is so remote that there are no comparable sales and the agency tries to claim that because the land is incapable of valuation no taking claim can be ripe until the owner tries to sell the land? He continued that Suitum's case is the same-- and to a bit of courtroom laughter--he reminded Lazarus that the agency would be wrong in the remote lot hypothetical.

To Lazarus' reply that "the TDR's are unique," Souter cut in "but you supply the uniqueness. Your agency created the problem." Ginsburg added TRPA had created the rights that the landowner "wants nothing to do with....and you control," concluding "so why should Mrs. Suitum have to flesh it out [by trying to sell the TDRs.]?" A bit later Lazarus tried to argue that the equities favored the agency because Suitum stubbornly sued instead of selling the TDRs. Souter again noted that the agency "created the uncertainty" the rights at issue, meaning that the burden should not be on her.

That was too much for Scalia who asked how old the plaintiff was. Lazarus replied "82" but that any delay was caused by her decision to appeal. Scalia then asked, "what if she doesn't win the lottery?" Lazarus replied all TRPA would require is that she make a "good faith effort." "To win the lottery?" was Scalia's incredulous reply. (It was at about this point that Justice Stevens smiled with disbelief at Lazarus's strategy.)

Finally, TRPA's amicus, the Solicitor General, pretty much conceded that the case was ripe, but argued that the case should not be seen as a categorical taking. The Court seemed uncertain itself whether it needed to reach the taking issue at all. Breyer asked if anyone would "mind if the case was found ripe." Solicitor Wallace's response was that "the government wouldn't." He continued by noting in essence that because TDR's were not "brand new," instead of going to court it is better for landowners to utilize the system. Echoing O'Connor, Kennedy responded that this was " a very strange doctrine." Just as Wallace launched into a plea for the environment, Chief Justice Rehnquist stopped him because the time had run. While it is usually imprudent to predict the outcome of a case after oral argument, I do not think that it is going out too much on a limb to predict that the court will be unanimous (or pretty close to unanimous) in finding that the Ninth Circuit was wrong when it held that the case was not ripe. The only question is whether any of the Justices will reach the larger issue of whether these TDRs could possibly not constitute a taking of her property. A decision is expected later this spring.

* James Burling is the Director of Property Rights for Pacific Legal Foundation, which is representing Bernadine Suitum before the United States Supreme Court.


2001 The Federalist Society